HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
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CWP No. 2798 of 2006.
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H.C.Arora Versus Union of India and others.
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CORAM: Hon’ble Mr. Justice T.S.Thakur, CJ and
Hon’ble Mr. Justice Jasbir Singh.
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Present: Shri H.C.Arora, Advocate, petitioner in person.
Shri Onkar Singh Batalvi, Advocate, for
Union of India.
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T.S.Thakur, CJ (Oral)
This petition filed in public interest prays for a mandamus
striking down Sections 7 and 7-A of the Industrial Disputes Act, 1947
inasmuch as the said two provisions do not make Advocates with any
length of experience at the Bar eligible to be appointed as Presiding Officer
of Central Government Labour Courts and/or Tribunals.
Mr. Arora, petitioner in person, argued that the provisions
referred to above deserves to be suitably amended so as to make the
members of the Bar with 7-10 years experience in the legal profession,
eligible for appointment together with sitting or retired High Court Judges
and District Judge/ Addl: District Judges, with three years experience for
appointment as Members of the Labour Court and Tribunals.
Having given our careful consideration to the submissions, we
are of the view that the statutory provisions contained in Sections 7 and 7-
A of the Industrial Disputes Act, 1947 cannot in a public interest petition be
struck down as unconstitutional. We say so because a statutory provision
may be struck down as ultra vires only in case it is shown to be violative of
any fundamental right of the petitioner or in excess of the legislative
competency given legislature that has enacted the legislation. There is in
the present proceedings no challenge to the impugned provisions on the
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ground of legislative competence. Even in regard to the violation of
fundamental right as a ground for striking down the provision, Mr. Arora
was fairly admitted that he was not interested in seeking his appointment
as a member of the Labour Court. That being so, the question of striking
down the provisions under challenge on the ground of violation of
fundamental rights of the petitioner also does not arise. Mr. Arora,
however, drew our attention to the decision of a Supreme Court in S.P.
Sampat Kumar Versus Union of India and others 1987 (1) Administrative
Tribunal Judgments 219 to argue that the observations made by their
Lordships in the following passage were squarely applicable to the case at
hand:-
” I also fail to see why a District Judge or an
advocate, who is qualified to be a Judge of a High
Court should not be eligible to be considered for
appointment as Vice-Chairman of the
Administrative Tribunal. It may be noted that since
the Administrative Tribunal has been created in
substitution of the High Court, the Vice-Chairman
of the Administrative Tribal would be in the
position of a High Court Judge and if a District
Judge or an advocate qualified to be a Judge of
the High Court, is eligible to be a High Court
Judge, there is no reason why he should not
equally be eligible to be a Vice-Chairman of the
Administrative Tribunal. Can the position of a
Vice-Chairman of the Administrative Tribunal be
considered higher than that of a High Court Judge
so that a person who is eligible to be a High Court
Judge may, yet be regarded as ineligible for
becoming a Vice Chairman of the Administrative
Tribunal. It does appear that the provisions of the
impugned Act in regard to the composition of the
Administrative Tribunal are a little weighted in
favour of members of the services. This
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weightage in favour of the members of the
Services and value-discounting of the judicial
members does have the effect of making the
Administrative Tribunal less effective and
efficacious than the High Court, I, would,
therefore, suggest that a District Judge or an
advocate who is qualified to be a Judge of the
High Court should be regarded as eligible for
being Vice-Chairman of the Administrative
Tribunal and unless an amendment to that effect
is carried out on or before 31st March, 1987, the
impugned Act would have to be invalid, because
the provision in regard to composition of the
Administrative Tribunal cannot be served from the
other provisions contained in the impugned Act.”
The above observation do prima facie lend support to Mr.
Arora’s submissions that in the analogy of conditions of eligibility stipulated
for appointment to the Administrative Tribunal, the provisions stipulating
conditions of eligibility for appointment as members of the Labour Courts
and Administrative Tribunals ought to be suitably modified so as to make
members of the Bar with more than 7 or 10 years of practice, eligible for
such appointment. Having said so, he must hasten to add that the power
to amend the statute so as to make members of the bar eligible for
appointment as Members of the Labour Court or Tribunal, rests entirely on
the Parliament. A writ Court is not competent to issue a mandamus
either to the Parliament or to any other Legislature to emend the
provisions of the statute to any particular effect. The proper course for any
such change to brought about is to approach the Law Commission of India
who could examine the issue in the light of observations made in S.P.
Sampat Kumar’s case (supra) and make suitable recommendations to the
Parliament.
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Mr. Arora, we must say, in fairness agreeable in making a
representation to the Law Commission seeking recommendations for an
amendment in the provisions contained in Sections 7 and 7-A of the
Industrial Disputes Act, 1947. All that we need say is that if any such
representation is made by Mr. Arora, the Law Commission may examine
the feasibility of making a recommendation for a suitable amendment in
the provisions.
With the above observation, this writ petition is disposed of
leaving the parties to bear their own costs.
(T.S.Thakur)
Chief Justice
(Jasbir Singh)
Judge
October 23, 2008.
Malik