State of Haryana v. Haryana Co-Operative Transport Ltd. & Ors.

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1164 of 1970. (Appeal by Special Leave from the Order dated the 5th September 1969 of the Punjab & Haryana High) Court in S. C. A. No. 197 of 1968) Naunit Lal,' Girish Chandra and R. N. Sachthey, for the appellant. S. B. Wad, for respondent No. 1. The Judgment of the Court was delivered by CHANDRACHUD, J. The 1st respondent is a co-operative transport ·society carrying on transport business at Kaithal, District Kamal, State .of Haryana. The Society terminated the services of respondents 3 and 4 who were working with it as conductor and driver, respectively. The State of Punjab, on June 22, 1964 referred the dispute arising out of the dismissal of respondents 3 and 4, under s. 10 of the Industrial Disputes Act (14 of 1947) for the adjudication of the Labour Court, Rohtak.

That Court was then presided over by Shri Jawala Dass. ·On Shri Dass's retirement, Shri Hans Raj Gupta was appointed on June 4, 1965, as the presiding Officer of the Court. The reference was thereafter heard by him and on April 16, 1966 he gave an award ·directing the reinstatement of respondents 3 and 4 with 50% backwages from the date of their dismissal until the date of reinstatement. . The Presiding Officer of the Labour Court is the 2nd respondent to this ,appeal. Being aggrieved by the award, the 1st respondent filed Writ Petition No. 1575 of 1966 in the High Court of Punjab and Haryana under arts. 226 and 227 of the Constitution, praying that the award given by the 2nd respondent be set aside on the ground, inter alia, that he was not qualified to hold the post of a Judge of the Labour ·Court, and, therefore, the award was without jurisdiction.

The Writ petition having been allowed bv a Division BPnC"h hv its judgment dated March 26, 1968 the State of Haryana has filed this appeal by spec; 1eave. The Presiding Officer of the Labour Court was impleaded :to the Writ Petition as the 2nd respondent. The only question for decision in this appeal is whether Shri Hans Raj Gupta who gave his award as the presiding Officer of the Labour Court was qualified for being appointed as a Judge of the Labour Court. Section 7 ( 1) of the Industria~ Disputes Act provides that the appropriate Government may constitute one or more Labour Courts for the adjudication of Industrial disputes relating to any matter specified in the Second Schedule to the Act. A Labour Court, under s. 7 (2), shall consist of one person only to be appointed by the Government. Sub-section ( 3) of s. 7 reads thus : " ( 3)

A person shall not be qualified for appointment as the presiding officer of a Labour Court, unless- ( a) he is, or has been, a Judge of a High Court; or - (b) he has, for a period of not less than three years, been a District Judge or an Additional District Judge; or (c) he has held the office of the chairman or any other member of the Labour Appellate Tribunal constituted under the Industrial Disputes (Appellate Tribunal) Act, 1950 ( 48 of 1950), or of any Tribunal, for a period of not less than two years; or (d) he has held any judicial officer in India for not less than ,seven years; or (e) he has been the presiding officer of a Labour Court constituted under any Provincial Act ot State Act for not less than five years". It was common ground in the High Court that Shri Gupta did not satisfy the qualifications laid down in any of the clauses (a), (b), (c) and (e) of s. 7(3).

It was, however, urged in the High Court, in the first instance, that Shri Gupta had held a judicial office in India for not less than seven years and was, therefore, qualified for being appointed as a Judge of the Labour Court under clause ( d) of s. 7 ( 3). This argument was made before the learned Chief Justice of the High Court who, while hearing the Writ Petition singly, felt that the question raised was of public importance. He, therefore, referred the matter to a Division Bench. The contention that Shri Gupta was qualified to hold the office of a Judge of the Labour Court under clause (d) of s.7(3) was, however, given up by the State before the Division Bench. Before us, the learned counsel for the appellant, the State of Haryana, rightly did not pursue the unstatable contention. Shri Hans Raj Gupta was initially working as an Upper Division Clerk-cum-Head Clerk.

Thereafter, he worked from January 14, 1941 to October 19, 1954 as the Registrar to the Pensions Appeals Tribunal, Jullundur Cantonment. After relinquishing that post, he was reverted as an Upper Division Clerk-cum-Head Clerk, which office he held till February 17, 1957. Subsequently, he was appointed as an Assistant Settlement officer in which post he worked till September 1962. It is obvious, and requires no clever argument to show, that Shri Gupta was holding clerical posts which, with some courtesy, may HARYANA v. HARYANA CO-OP. TRANSPOllT (Clwndrachud, J.) 309 be described as posts calling for and furnishing admi~istrative experience. As an Upper' Division Clerk, even if th~ dunes of that post were combined with those of the Head Clerk, Shn Gupta was nowhere in the shadow of a judicial office. As a Registrar of the Pensions Appeals Tribunal, Jullundur Cantonment, he was admittedly discharging administrative functions.

A circumstance which seems to · have blurred the perception of the State Government perhaps was that the Pensions Appeals Tribunal was a ju~icial or. q1;1asi-judicial body a~d since shri Gupta was1 closel~ associated ~1t~ .1t, does not m~tt~r m what capacity, he could be said to hold a 1ud1c1al office. Adm1mstrative proximity with judicial work was regarded as an excuse good enough to elevate the administrator into a holder of judicial office. This was a wholly misconceived approach to a matter of some moment for, were it so, many a judicial clerk would be qualified to be appointed to a judicial office. Having never held any judicial office, Shri Gupta totally lacked judicial experience and was incompetent to discharge the functions of a Judge of the Labour Court. His appointment was therefore illegal and ·his award without jurisdiction.

We are happy to note that the State Government did not take the time of the Division Bench of he High Court and of this Court in· arguing an impossible proposition. Nevertheless, the award given by Shri Gupta as the Presiding Officer of the Labour Court is defended by the State Government on 1the Plea that Shri Gupta's appointment cannot be challenged in a collateral proceeding filed in the High Court for challenging the award. Reliance is placed in support of this submission on the following passage in Cooley's "A Treatise on the Constitutional Limitations" (8th edn; vol. 2; pages 1255-1358);

"An. officer de jure is one who, possessing the legal qualificatlons, has been lawfully chosen to the office in question, and. has f~lfilled any ~onditions precedent to the performance of its duties. ~.Y bemg thus chosen and observing the precedent con.d1t10ns, su~h a person becomes of right entitled ~o the pos~ess10n and enjoyment of the office, and the public, m who~e mterest t~e offi~e is create~, is entitled' of right to ·have him perform its duties. If he 1s excluded from it the exclusion is both a public offense and a private injury. ' .An officer de jure may be . excluded from his office by ~ither an officer de facto or an intruder. An officer de facto 1s one who by some color of right is in possession of an office and ~or the time being performs its . duties with public acqmescence though having no right in fact.

His color of right may come from ~n election or appointment made by some officer or body havmg colorable but no actual right to make ~t; or mad~ in such disregard of legal requirements as .to be meffectual m law; or ~ade to fill the place of an officer illegally removed; or made 111 favor of a party not having the legal qualifications; or it may come from public acquiescence in the officer holding without performin_g the precedent conditions, or holding over under claim of right after his legal right has been terminated; or possibly from public acquiescence alone when accompanied by such circumstances of official reputation as are calculated to induce people, without inquiry, to submit to or invoke official action on the supposition that the person claiming the office is what he assumes to be. An intruder is one who attempts to perform the duties of an office without authority of law, and without the support of public acquiescence.

No one is under obligation to recognise or respect the acts of an intruder, and for all legal purposes they are absolutely void. But for the sake of order and regularity, and to prevent confusion in the conduct of public business and in security of private rights, the acts of officers de facto are not suffered to be questioned because of the want of legal' authority except by some dire~t proceeding instituted for the ;. purpose by the State of by some one claiming the office de iure, or except when the person himself attempts to build up some· right, or claim some privilege or emolument, by reason of being the officer which he claims to be. In alt other cases the f!Cts of an officer de facto are as valid and effectual, while he is suffered to retain the office, as though he were an officer by right, and the same legal consequences will flow from them for the protection of the public . and of third parties.

This is an important principle, which finds concise expression in the legal maxim that the acts of officers de faf;to cannot be questioned collaterally." Equally strong relian_ce was pl_?ced by the State Government on a decision of the Ontario Supreme Court in Rs Toronto N. Co. City of Tornoto{l) in which, after an examination of several American and other decisions, Meredith, C.J.O., observed : "That it is not open to attack, in a collateral proceeding, the status af a de facto Judge, ha\ling at least a colourable title to the office, and that his acts are valid, is clear, I think, on principle and on authority, and it is also clear that the proper proceeding to question his right to the office is by quo warranto information." (PP. 551-552) Learned counsel for the State, Shri Naunit Lal, further drew our attention to a decision of the High Court of · Travancore-Cochin in Bhaskera Pillai and Anr. vs. State( 2 ) which, relying upon the passage in Cooley's Constitutional Limitations and the Canadian case, held that the appointment of the Chief Justice of that Court could not be questioned collaterally in a proceeding for leave to appeal to the Supreme Court against the decisions rendered by him.

Some sustenance was also sought to the same argument from a decision of a Full Bench of (1) 46 Dominion Law Report 547. (2) (1950) 5, D.L.R. Travancore-Cochin 382. HARYANA v. HARYANA CO-OP. TRANSPORT (Chandrachud, J.)311 the Allah~bad High Court in Queen Empress vs. Garsa Sam ( 1) in whic)l it was held that where a person had in fact been exercising ~ the functions of a Judge of the High Court, the appointment even if apparently ultra vires must nevertheless be presumed, in the absence of fuller information, to have been legally made in t!Ie exercise of sOI~e power, unknown to t!Ie Court, vested in the Secretary of State for India. Broadly, the starting point and t!Ie primary basis of these decisions is the passage from Cooley's Constitutional Limitations, which we have extracted above. That passage says and means that the acts of officers de facto cannot be suffered to be questioned for want of legal authority except by some direct proceeding.

This important principle, according to Cooley, finds concise expression in the legal maxim that the acts of officers de facto cannot be allowed to be questioned collaterally. Considering t!Ie nature and course of proceedings in the instant case, it seems to us impossible to hold that the challenge to Shri Gupta's appointment was made in a collateral proceeding. That Shri Gupta's appointment was not challenged in the very proceeding before him does not meet the point and in any case, if the proper mode to challenge the validity of an appointment to a public office is by a petition for the writ of quo warranto, the Labour Court over which Shri Gupta presided was hardly an appropriate forum for challenging the appoinment of its Presiding Officer.

The 1st respondent, the Haryana Co-operative Transport Ltd., against whom Shri Gupta ga~e the award, filed a writ petition in the High Court of Punjab and Haryana to challenge the award on the ground that Shri Gupta was not qualified to hold the office of a Judge of the Labour Court and, therefore, the award given . by him was without jurisdiction. The challenge to Shri Gupta's appointment having been made by a writ petition under arts. 226 and 227 of tfie Constitution, to which Shri Gupta was impleaded as a partyrespondent, the challenge was made directly in a substantive proceeding and not collaterally. The writ petition was filed mainly with a view to challenge Shri Gupta's appointment on the ground t!Iat he W'!S not qualified to fill the post to which he was appointed. Having been impleaded to the writ petition he had a clear and rightful opportunity to defend his appointment.

The proceedings by way of writ petition were taken not collaterally for attacking an appointment to a judicial office in a proceeding primarily intended for challenging a so-called judicial decision, but the proceeding was taken principally and predominantly for challenging the appointment itself. None of the decisions, nor indeed the passage in Cooley's Treatise, 'is therefore, any answer to the prayer that the award be declared to be ultra vires on tho ground that the officer .who gave it was not qualified to hold that post in the exercise of whose functions the award was given. The mere circumstance that the 1st respondent did not in so many words ask for the writ of quo warranto cannot justify the argument that the appointment was being challenged collaterally in a proceeding takes to challenge the award. Considering the averments in the writ petition, it seems to us clear that the main and real attack on the award (3) I.L.R. 16. All. 136.

4·-1546 SCT/76 was the ineligibility of Shri Gupta to occupy the post of a Judge of the Labour Court, in the dischan>e of whose functions the award was rendered by him. The relief ot' certiorari asked for by writ petition was certainly inappropriate but by clause (c) of paragraph, 16, the High Court was invited to issue such other suitable writ, order or direction as it deemed fit and proper in the circumstances of the case. There is no magic in the use of a fonnula. The facts necessary for challenging Shri Gupta's appointment are stated clearly in the writ petition and the challenge to his appointment is expressly made on the ground_ that he was not qualifioo to hold the post of a Judge of the Labour Court. It must be mentioned that in the Canadian case of re Toronto vs. City of Toronto (supra) the contention was that the Ontario Railway and Municipal Board 'was a "Superior Court" within the meaning of s.

96 of the British North America Act and its members, not having been appointed by the Governor General, had no jurisdiction to exercise the powers conferred upon the Board by the Act by which it was created. This argument was repelled firstly on the ground that the Board was not a Court but an administrative body and secondly on the ground that there was nothing to show that the members of the Board were not appointed by the Governor General. In the Travancore Cochin case the Chief Justice whose appointment was challenged was qualified to hold that post since he had held the office of a Judge of the Madras High Court though he had retired from that office on attaining the age of 60. The question really turned on the construction of art.

376(2) of the Constitution which confers power on the President is detennine the period for which a Judge of a High Court in any Indian State corresponding to any State specified in part B of the First Schedule holding office immediately before the commencement of the Constitution may continue to hold that office. Besides, the Chief Justice's appointment was challenged collaterally in applications for leave to appeal to the Supreme Court against the judgments pronounced by him. The Full Bench judgment of the Allahabad High rested on the presumption, in the absence of fuller information, that the appointment must be deemed to have been made in the exercise of some power vested in the Secretary of State for India even if such power was unknown to the Court. Delivering the judgment of the Court, Edge, C. l observed at pageJ 57 : "Being in ignorance as to whether or not any power existed under which Mr. Justice Burkitt may have been lawfully appointed to act as a Judge of this court, we hold that the prec~umption that he was duly appointed, which arises from the fact of his having acted as a Judge of the Court since November 1892, has not been re-butted.

This mav seem to he a lame and imnotent <'O'lclnsinn for a Court of Justice to arrive at concerning the validity of the appointment of one of its acting Judges, but our lack of necessary i'lforma•ion as to the appointment, coupled with the circumstances of the case, permits of our arriving at no other." Learned counsel for the State of HHrvana contencls that there is one more impediment in the Court holding that Shri Gupta was not IIARYANA v. HARYANA CO-OP. TRANSPORT (Chandrachud, !.) qualified under s. 7 (3) of the Act to be appointed as a Judge of the Labour Court. Reliance is placed in support of this argument on s. 9 ( 1) of the Act which reads t!htus : "9. Finality 01f orders constituting Boards, etc.-(1)

No order of the appropriate Government or of the Central Government appointing any person as the chairman or any other member of a Board· or Court or as the presiding officer of a Labour Comt, Tribunal ·or National Tribunal shall be called in question in any manner; and no act or proceedin~ before any Board or Court shall be called in question in any manner on the ground merely of the existence of any vacancy in, or defect in the constitution of, such Board or Court." It is true that s.9(1) is worded so widely and generally that it could c cover any and every challenge to the appointment to the particular posts therein mentioned. But it is impossible to construe the provision as in derogation of the remedies provided by arts. 226 and 227 of the Constitution. The rights conferred by those articles cannot be permitted to be taken away by a broad and general provision in the nature of s.9 ( 1) of the Act.

The words "in any manner" which occur in s.9(1) must, therefore, be given a limited meaning so as to bar the jurisdiction of civil courts, in the ordinary exercise of their powers, to entertain a challenge to appointments mentioned in the sub-section. The High Court of Assam('), Bombay(') and Rajasthan(') have taken, like the High Court of Punjab and Haryana in the instant case, a correct view of the scope and meanin~ of s.9(1) of the Act by limiting its operation to ordinary powers of the civil Courts. The rights conferred by arts. 226 and 227 can be.abridged or taken away only by an appropriate amendment of the Constitution and their operation cannot be whittled down. by a provision like the one contained in s.9(1) of the Act.

Accordingly, it is open to the High Courts in the exercise of their writ jurisdiction to consider the validity of appointment of any person as a chairman or a member of a Board or Court or as a presiding officer of a Labour Court, Tribunal, or National Tribunal. If the High Court finds that a person appointed to any of these offices is not eligible or qualified to hold that post, the appointment has to be declared invalid by issuing a writ of quo warranto or any other appropriate writ or direction. To strike down usurpation of office is the function. and duty of High Courts is· the exercise of their constitutional powers under arts. 226 and 227. In the result we affirm the judgment of the High Court and dismiss this appeal. We are thankfi:l to Sjiri Wad for assisting the Court as amicus. S.R. Appeal dismissed. (1) Bozbarua (G.C.) v. Sate of Assam-1954 Assam 161. (2) Jagannath Vinayak Kale v. Ahmedi-(1958) II L.L.J. 50 (Born.)· (3) Mewer Textile Mills Ltd. v. Industrial. Tribunal-A.I.R. 1951 Raj.

1961