AI Drafter 
TaxTMI 
TaxTMI 
2003 (3) TMI 723
X X X X Extracts X X X X
X X X X Extracts X X X X
....resident of the Industrial Court which was under challenge before the High Court of Gujarat in Special Civil Application Nos. 12665/2000, 79/2001, 80/2001 and 93/2001 filed by Gujarat Kishan Mazdoor Panchayat, Gujarat Industrial Court Judges' Association, Labour Laws Practitioners' Association and Surat Textile Labour Union. As per the directions of the Chief Justice, the applications were placed before the Full Bench of the Gujarat High Court. The Full Bench, by its judgment dated 4.5.2001, allowed the applications and quashed the said Notification dated 7.12.2000. The Full Bench further directed the respondents to proceed to make the appointment afresh on the post of the President of the Industrial Court, Gujarat in the light of what has been held in the said order and in accordance with law. Aggrieved by the order passed by the Full Bench of the High Court, the High Court of Gujarat through its Registrar preferred Special Leave Petition (c) Nos. 11795-11798/2001 on the grounds raised in the special leave petitions. By order dated 14.12.2001, this Court granted leave and made the interim order absolute. 2. All these appeals involve common question of law based on same set of f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....our Judges are those who have completed more than five years' service as Labour Judges and are, therefore, eligible for being appointed as Members of the Industrial Court. When the post of President of the Industrial Court was vacant since the retirement of Shri D.V. Joshi, Shri Y.P. Bhatt, the senior-most Member of the Industrial Court expressed his unwillingness to be appointed as President of the Industrial Court, the post was, therefore, required to be filled up by a regular appointment. According to the respondents, a person for being appointed as President should be a Member of the Industrial Court and no one except a Member can be appointed as a President of the Industrial Court. It was, therefore, submitted before the High Court that anyone from the Members of the Industrial Court can be considered to be eligible for being appointed as President. It was further submitted that in view of the scheme of Section 10(2) of the B.I.R. Act, no one who is not a Member of the Industrial Court can be directly appointed as President of the Industrial Court. It was further argued before the High court that for Members of the Industrial Court, there is no other avenue of promotion except....
X X X X Extracts X X X X
X X X X Extracts X X X X
....therefore, submitted that the appointment had been made without coming to the conclusion that the appointee was fulfilling the criteria for appointment as required by the Rules. An affidavit in reply was filed before the High Court by the Law Officer of the High Court of Gujarat giving all details as to how the matter was considered by the Standing Committee of the High Court and as to how the decision was taken to appoint Shri N.A. Acharya as the President of the Industrial Court. 5. The Full Bench of the High Court, by its judgment, held that a reading of Section 10 of the B.I.R. Act would show that it provides for the constitution of the Industrial Court with three or more Members, one of whom as its President and it also provides the eligibility for appointment as Member of the Industrial Court. While the eligibility has been prescribed under Section 10(3) and (4) of the B.I.R. Act for being a Member of the Industrial Court, for the purpose of President of the Industrial Court all that has been said in sub-section (2) of Section 10 of the B.I.R. Act is that one of the Members shall be its President. Therefore, being a Member of the Industrial Court is a pre-requisite ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....be sustained in the eye of law. ... It is also not in dispute that the respondent No.3 had never been appointed as Member of the Industrial Court and in terms of Section 10(2) of the Bombay Industrial Relations Act, without being a Member of the Industrial Court, there is no question of his appointment as the President of the Industrial Court either by promotion or by direct recruitment. Being a Member of the Industrial Court is a sine qua non for consideration for the post of President of the Industrial Court and no person who is not a Member of Industrial Court could be considered for appointment as such without committing violence to the recruitment of Section 10(2). ..In the instant case, we find that the mode of direct recruitment is not contemplated and even if any direct recruitment is held for the post of President of Industrial Court when no Member is eligible, such direct recruitment is required to be held after affording equal opportunity to all those, who are eligible. The proposed Draft Rules 2(a) seeks to render the Members of the Industrial Court to be ineligible by putting the condition of the completion of 5 years service on the post of Mem....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the current Members of the Industrial Court and, therefore, the High Court has erroneously read these words in Section 10(2) of the B.I.R. Act. He further submitted that the High Court failed to appreciate that Section 10(4) of the B.I.R. Act provides for eligibility criteria and Shri N.A. Acharya fulfills the eligibility criteria. He further submitted that the High Court proceeded on an erroneous footing that the B.I.R. Act does not contemplate the appointment by direct recruitment and only the Members of the Industrial Court from the zone of consideration for appointment to the post of President, Industrial Court. 9. Per contra, Shri R. Venkataramani, learned senior counsel, appearing for the respondents, apart from reiterating the contentions in the applications, submitted that Section 10(2) of the B.I.R. Act clearly indicates that only Member of Industrial Court is eligible for becoming the President of the Industrial Court and that becoming Member of the Industrial Court is sine qua non for being considered for the post of President of the Industrial Court. According to him, Shri N.A. Acharya does not fulfil any of the three eligibility conditions mentioned in Section 10(....
X X X X Extracts X X X X
X X X X Extracts X X X X
....away by nomination without taking into consideration the cases of nomination of existing Members of the Industrial Court who had completed ten years' functioning as a Judicial Officer has been rightly held by the High Court as violative of Articles 14 and 16 of the Constitution of India and that, therefore, no public appointment can be made in disregard of consideration of the cases of those who were qualified for the post. 10. Arguing further, learned senior counsel for the respondents, submitted that the appointment of a Junior Judicial Officer as President of the Industrial Court without considering the cases of existing Members of the Industrial Court who are senior on the basis of longer experience on equivalent post will also not be conducive to the judicial service which, according to him, will result in a Junior Judicial Officer presiding over Industrial Court who have Members far senior to the President and that Junior Judicial Officer will thus exercise administrative powers of control over undisputedly Senior Judicial Officers. It was further submitted that assuming that a District Judge can be directly appointed to the post of President, Industrial Court carrying a h....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... by reason only of the fact that he is a shareholder of an incorporated company which is connected with, or likely to be affected by such industrial dispute; but in such a case, he shall disclose to the State Government the nature and extent of the shares held by him in such company. (4) Every member of the Industrial Court shall be a person who is or has been a judge of High Court or is eligible for being appointed a judge of such Court: Provided that- (a) a person who has been a Judge not lower in rank than that of Assistant Judge, for not less than three years; or (b) a person who has been the presiding officer of a Labour Court constituted under any law for the time being in force, for not less than five years; or (c) a person who holds a degree in law of a University established by law in any part of India and is holding or has held an office not lower in rank than that of Assistant Commissioner of Labour under the Sate Government, for not less than ten years, shall also be eligible for appointment as a member of the Industrial Court. Provided further that, one member of the Industrial Court may be a person not so eligible,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Section 10(2) of the B.I.R. Act can be read to mean that the President of the Industrial Court must be appointed from among the existing Members of the Industrial Court when the provision in fact is not in such terms? (c) Whether the reading of the provisions of Section 10 of the B.I.R. Act clearly spells out that apart from the mode of selecting the President, by promotion from amongst the Members, the President can also directly be appointed from the sitting or retired High Court Judges or from the Judges of the City Civil Court, Ahmedabad and District Judges, who fulfills the eligibility requirement for appointment as Member of the Industrial Court? (d) Whether the High Court has failed to appreciate that Section 10(2) of the B.I.R. Act does not envisage the mode of appointment? 13. Our attention was drawn to the relevant pleadings filed before the High Court and also in this Court. 14. As already noticed, the appointment of Shri N.A. Acharya as the President of the Industrial Court vide Notification dated 7.12.2000 issued by the Labour and Employment Department, Government of Gujarat, is under challenge by way of these appeals. The circumstances and the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ne judicial officers had expressed willingness for being considered for the post in question, the details of which have been furnished at page 92 of the paper book. Thereafter, the said matter was placed for consideration of the Standing Committee of the High Court of Gujarat and in the meeting of the Standing Committee held on 30.3.2000, it was decided to direct the office to resubmit the matter along with the recruitment Rules prescribing eligibility criteria for appointment to the post of President, Industrial Court. Pursuant to the said decision, the matter was again considered in the light of the existing Rule provision by the office. As per the directions of the Standing Committee, the matter was again placed before the Standing Committee for further consideration along with the Rule stated above. In the meeting of the Standing Committee of the High Court held on 1.5.2000, the consideration of the subject was deferred, however, in the meantime, the office was directed to resubmit the matter, pointing out the provisions of law in the matter, particularly mentioning the provisions regarding eligibility, experience and age of superannuation etc. prescribed for the post in questi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he High Court and the same has been incorporated in the Draft Recruitment Rules. We have already extracted Rules 2 & 3 of the Draft Recruitment Rules. Shri N.A. Acharya is eligible for the post of the President, Industrial Court, Ahmedabad as he has completed ten years' service in judiciary including the period of practice at the Bar. The period of practice/service of Shri N.A. Acharya is given below:- "Period of Practice/Service or Mr. N.A. Acharya:- 1.8.1978 to 30.11.1983 :- Worked as Civil Judge(JD) Resigned on :- 30.11.1983 Period of Practice :- Enrolment No.G/296/1974 on 30.10.74 Practice : 30.10.1974 to 31.7.1978 1.12.1983 to 19.2.1992 From 20.2.1992 to 22.12.1999 -Addl. Public Prosecutor, City Civil Court, Ahmedabad From 23.12.1999 to 21.12.2000 - Worked in the cadre of District Judge at Vadodara. From 22.12.2000 - As President, Industrial Court." 17. In our opinion, in the case of appointment of President of the Industrial Court by nomination, it is not necessary that he must be appointed as Member at the first instance. Section 10(2) of the B.I.R. Act deals with the com....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al Court. The High Court, in our view, has failed to appreciate that the words of Section 10(2) of the B.I.R. Act are not "that the President shall be appointed from one of the current Members of the Industrial Court". The narrow interpretation of Section 10(2) of the B.I.R. Act and the reasoning of the High Court, in our view, completely rules out the appointment of President, Industrial Court through the mode of nomination. In other words, the High Court failed to appreciate that once a person is appointed as the President of the Industrial Court, he automatically becomes a Member. Section 10(2) of the B.I.R. Act only envisages that the President is the senior Member of the Industrial Court and that the appointment of President of the Industrial Court is inherent in his appointment as Member of the Industrial Court. 19. This Court, in the case of State of Maharashtra vs. Labour Law Practitioners' Association & Ors., (1998) 2 SCC 688, held that the Labour Court Judges and the Judges of the Industrial Court belong to Judicial service and recruitment is to be made in accordance with Article 234 of the Constitution of India. The existing Recruitment Rules did not comply with the p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er sub-section (4) of Section 10 of the Bombay Industrial Relations Act 1946 or not. The Full Bench of the High Court has mainly proceeded on the basis that the Industrial Court was required to have three or more members, one of whom shall be President as specified in sub-section (2) of Section 10 and, thus, a person before he is appointed as the President must necessarily be appointed as a Member. In my opinion, while arriving at the said finding what the High Court has failed to take into consideration was that sub-section (2) of Section 10 did not impose any restriction on the power of the State to appoint a Member or a President. The said provision merely speaks of the composition of the Court of Industrial Arbitration. The expression 'shall consist of three or more Members' is important. Sub-section (2) of Section 10 provides for the composition of the Tribunal and nothing else. By necessary implication a President of the Court of Industrial Arbitration would also have to be a Member and precisely that was the reason why no separate qualification for the appointment of a qualification has been laid down in the Act. Sub- section (4) of Section 10 of the Act lays down the eligib....
X X X X Extracts X X X X
X X X X Extracts X X X X
....alone to nominate a person of its choice. Such a practice is followed by all the High Courts of the country and although the ultimate authority is the State, the recommendations made by the High Court is normally accepted. 9. A statute as is well-known must be interpreted having regard to the purport and object which it seeks to achieve. The object of the Act is to constitute Industrial Arbitration Court for the purpose of adjudication of the disputes between the management and the workmen. Such courts which are normally manned by the judicial officers cannot be kept vacant for a long time. Whenever they are meant to be filled up by the sitting judicial officers, consultation with the High Court is imperative. 10. Although we do not find any difficulty in interpreting the provisions, even if it be assumed that the provisions of Sub-section (2) and sub-section (4) of Section 10 of the Act render two different meanings, it is trite, that in such an event the rule of purposive construction should be taken recourse to. 11. In Jt. Registrar of Cooperative Societies, Kerala Vs. T.A. Kuttappan and Others [(2000) 6 SCC 127] while interpreting the provisions dealing with the questi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Scheduled Castes and Scheduled Tribes, to enable them to enter and adequately represent in various fields. The meaning, content and purport of the expression will necessarily depend upon the purpose and object with which it is used." 15. The Court while interpreting the provision of a statute, although, is not entitled to re-write the statute itself, is not debarred from "ironing out the creases". The court should always make an attempt to uphold the rules and interpret the same in such a manner which would make it workable. 16. It is also a well settled principles of law that an attempt should be made to give effect to each and every word employed in a statute and such interpretation which would render a particular provision redundant or otiose should be avoided. 17. In Reserve Bank of India vs. Peerless Co. reported in 1987(1) SCC 424, this Court said:- "Interpretation must depend on the text and the context. They are the basis of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d a purposive-and-strained construction). 21. In DPP vs. Schildkamp (1971) AC 1, it was held that severance may be effected even where the 'blue pencil' technique is impracticable. 22. In Jones vs. Wrotham Park Settled Estates (1980) AC 74 at page 105, the law is stated in the following terms:- "I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction, even where this involves reading into the Act words which are not expressly included in it. Kammins Ballrooms Co. Ltd. vs. Zenith Investments (Torquay) Ltd. (1971 AC 850) provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....be permissible in the following words:- "We are of the view that having regard to the pattern in which clause (a) of sub-section (3) of Section 10 of the Act is enacted and also the context, the words 'if the landlord required it for his own use or for the use of any member of his family' which are found in sub-clause (ii) of Section 10(3)(a) of the Act have to be read also into sub-clause (iii) of Section 10(3)(a) of the Act. Sub- clauses (ii) and (iii) both deal with the non-residential buildings. They could have been enacted as one sub- clauses by adding a conjunction 'and' between the said two sub-clauses, in which event the clause would have read thus : 'in case it is a non-residential building which is used for the purpose of keeping a vehicle or adapted for such use if the landlord required it for his own use or for the use of any member of his family and if he or any member of his family is not occupying any such building in the city, town or village concerned which is his own; and in case it is any other non-residential building, if the landlord or member of his family is carrying on, a non- residential building in the city, town or village concerned which is his ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s existing possibilities only one correct choice could be made in accordance with positive law. According to the author : "The legal act applying a legal norm may be performed in such a way that it conforms (a) with the one or the other of the different meanings of the legal norm, (b) with the will of the norm-creating authority that is to be determined somehow, (c) with the expression which the norm-creating authority has chosen, (d) with the one or the other of the contradictory norms; or (e) the concrete case to which the two contradictory norms refer may be decided under the assumption that the two contradictory norms annul each other. In all these cases, the law to be applied constitutes only a frame within which several applications are possible, whereby every act is legal that stays within the frame." 26. In S. Gopal Reddy vs. State of Andhra Pradesh reported in (1996) 4 SCC 596 this Court observed : "It is a well-known rule of interpretation of statutes that the text and the context of the entire Act must be looked into while interpreting any of the expressions used in a statute. The courts must look to the object which the statute seeks to achieve while interpr....