Chattisgarh High Court
Shirin Malewar vs State Of Chhattisgarh on 25 August, 2021
1
WPPIL No.19 of 2021 & WPC No.3438 of 2021
(Proceedings through Video Conferencing)
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Sheet
WPPIL No. 19 of 2021
Malay Jain (petitioner In Person) Versus The High Court Of Chhattisgarh & Ors.
And
WPC No.3438 of 2021
25/08/2021 Heard Shri Malay Jain, petitioner in person in WP PIL
No.19 of 2021; Shri Goutam Khetrapal, Adv. for the
petitioner in WPC No.3438 of 2021; Shri S.C. Verma,
Advocate General & Shri Vivek Ranjan Tiwari, Addl.
Advocate General with Shri Chandresh Shrivastava, Dy.
Advocate General for the State; Dr. N.K. Shukla, Sr.
Advocate with Shri Bhaskar Payasi, Advocate for the
respondent High Court of Chhattisgarh in WP PIL No.19 of
2021 and Shri Jitendra Pali, Advocate for the High Court of
Chhattisgarh in WPC No.3438 of 2021.
Both the petitions are admitted for hearing.
All the official respondents are represented.
On payment of process fee within three days, notice be
issued to the respondent-Agralal Joshi, as per rules, on
merit as well as on I.A.No.5 of 2021 (filed in WP PIL
No.19 of 2021) and I.A.No.1 of 2021 (filed in WPC
WPPIL No.19 of 2021 & WPC No.3438 of 2021
No.3438 of 2021) i.e. the applications for grant of interim
relief.
Heard learned counsel for the parties on the question of
interim relief.
Challenge in the writ petitions is to the amendment brought
forth by the State Government by publication in the official
gazette dated 20-7-2021 amending sub-rule (3) of Rule 6 of
the Chhattisgarh Labour Judicial Service (Recruitment and
Conditions of Service) Rules, 2015 (henceforth 'the Rules,
2015') and further amending Rule 12 of the said Rules and
thereafter omitting Rule 13.
The sum total effect of the said amendment is that for
appointment of the President of the Industrial Court the
State Government need not consult the High Court and that
any amendment in the Rules shall be made without
consultation with the High Court. Thereafter, in exercise of
the amended power the State Government has issued an
appointment order dated 12-8-2021 bearing No.F 1-
10/2013/16 appointing the respondent No.4-Agralal Joshi
as President of the Industrial Court, Raipur.
In State of Maharashtra v Labour Law Practitioners'
Association and Others reported in (1998) 2 SCC 688,
referring to the provisions of the Industrial Disputes Act,
1947 (henceforth 'the Act, 1947'); the Bombay Industrial
Relations Act, 1946; and other Labour Law enactments
operative in the State of Maharashtra, the Hon'ble Supreme
WPPIL No.19 of 2021 & WPC No.3438 of 2021
Court held that the Labour Court performs judicial
functions and is a Court. The Labour Court adjudicates
upon disputes that, had it not been for the Industrial
Disputes Act, would have been within the jurisdiction of the
ordinary civil courts to decide, although the ordinary civil
courts may not be able to grant all the reliefs that are
contemplated by the Act. The Labour Courts are, therefore,
courts and decide disputes that are civil in nature.
It is further held that the Labour Court Judges and the
Judges of the Industrial Court can be held to be belong to
Judicial Service. The hierarchy contemplated in the case of
Labour Court Judges is the hierarchy of Labour Court
Judges and Industrial Court Judges with the Industrial Court
Judges holding the superior position of District Judges. The
Labour Courts have also been held as subject to the High
Court's power of superintendence under Article 227 of the
Constitution of India.
The Hon'ble Supreme Court further propounded that in
accordance with the principle of separation of powers and
independence of the judiciary, judicial service contemplates
a service exclusively of judicial posts in which there will be
a hierarchy headed by a District Judge.
After this judgment, the State Government, on
recommendation of the High Court, framed the Rules,
2015.
WPPIL No.19 of 2021 & WPC No.3438 of 2021
In Gauhati High Court and Another v Kuladhar Phukan
and Another reported in (2002) 4 SCC 524 it has been held
by the Hon'ble Supreme Court that all the matters touching
the service career of incumbents in subordinate judiciary
including their posting, promotion, etc. are subject to the
control of the High Court. The word 'control' referred to in
Article 235 of the Constitution has been used in a
comprehensive sense and includes the control and
superintendence of the High Court over the subordinate
courts and the persons manning them, both on the judicial
and the administrative side. Even in such matter in which
the Governor may take a decision, the decision cannot be
taken save by consultation with the High Court. It is further
held therein that the consultation is mandatory and the
opinion of the High Court is binding on the State
Government; else the control, as contemplated by Article
235, would be rendered negated. Such control and
consultation are not a matter of mere formality; they are the
constitutional power and privilege of the High Court, also
its obligation and cannot be diluted by sheer inaction or
failing to act when the High Court must act. The Governor
cannot proceed to act in any matter relating to subordinate
judiciary and bypass the process of consultation merely
because the High Court, though 'informed', did not act or
respond. The consultation here means meaningful, effective
and conscious consultation.
WPPIL No.19 of 2021 & WPC No.3438 of 2021
Shri S.C. Verma, learned Advocate General has referred to
Section 7A(2)(4) of the Act, 1947 to argue that the
Government/appropriate Government has the power to
appoint President of the Industrial Tribunal. He would also
refer to Section 9 of the Chhattisgarh Industrial Relations
Act, 1960 wherein the State Government has been
empowered to appoint a person other
than the Judicial Officer, as President of the Industrial
Court.
Prima facie, there is no quarrel with the power of the
Government to appoint. Even under unamended rules, the
power lies with the State Government.
The real issue is whether the requirement of consultation
with the High Court can be done away with and more so in
the teeth of judgment of the Hon'ble Supreme Court in
Labour Law Practitioners' Association (supra) bringing
the labour judiciary, to which the President, Industrial Court
is definitely a part, within the ambit of High Court's control
under Articles 233 to 235 of the Constitution of India.
In view of the legal position, as discussed above, we are of
the prima facie view that the appointment of President,
Industrial Court, Chhattisgarh, could not have been made
without consultation with the High Court, as it affects the
separation of power and High Court's control over the
subordinate judiciary. The impugned amendment to the
WPPIL No.19 of 2021 & WPC No.3438 of 2021
Rules, 2015 also falls foul of the constitutional provision
under Articles 233 to 235.
Having considered the entire facts situation of the case, the
effect and operation of the order dated 12-8-2021 bearing
No.F 1-10/2013/16 appointing the respondent No.4 in
WPC No.3438 of 2021 (Agralal Joshi) as President of the
Industrial Court, Raipur, shall remain stayed, till further
orders.
Since it is informed that the respondent No.4 has already
joined on the post on 24th August, 2021, we further direct
that he is restrained from functioning as President,
Industrial Court, Chhattisgarh.
As prayed, post both the matters for final hearing in the
week commencing from 4-10-2021.
In the meanwhile, State shall file detailed return and also
keep available the subject record wherein the impugned
amendment and appointment of the respondent No.4 has
been carried out.
Certified copy as per rules.
Sd/- Sd/-
(Prashant Kumar Mishra) (Rajani Dubey)
Acting Chief Justice Judge
Gowri
