H.C.Arora v. Union of India & Ors.

Shri H.C.Arora, Advocate, petitioner in person. Shri Onkar Singh Batalvi, Advocate, for Union of India. *** 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 -2- CWP No. 2798 of 2006. 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 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 -3- CWP No. 2798 of 2006. 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. -4- CWP No.