PETITIONER:
STATE OF HARYANA
Vs.
RESPONDENT:
HARYANA CO-OPERATIVE TRANSPORT LTD. & ORS.
DATE OF JUDGMENT02/12/1976
BENCH:
CHANDRACHUD, Y.V.
GOSWAMI, P.K.
CITATION:
1977 AIR 237 1977 SCR (2) 306
1977 SCC (1) 271
ACT
Constitution of India--Articles 226-227--Mentioning
wrong writ--Writ of quo warranto-Must be specifically
prayed--Whether can be challenged in collateral
proceedings--Industrial Disputes ACt 1947--Sec. 9(1), final-
ity of award of Labour Court--Whether can be challenged by a
writ petition--Challenge to appointment of the Judge of
Labour Court.
HEADNOTE
The first respondent, a Co-operative Transport Society
terminated the services of respondent 3 and 4. The State of
Punjab referred the dispute arising out of the dismissal of
respondents 3 to 4 under s. 10 of the Industrial Disputes
Act 1947 to the Labour Court that was presided over by Mr.
Das. On Mr. Das’s retirement Shri Hans Raj Gupta was ap-
pointed as the Presiding Officer of the Court. Mr. Gupta
gave an award directing the reinstatement of respondents 3
and 4 with 50 per cent back wages from the date of their
dismissal until the date of reinstatement.
The first respondent being aggrieved by the award filed
a writ petition in the High Court under Articles 226 and 227
of the Constitution praying that the award given by second
respondent be set aside on the ground, inter alia, that he
was not qualified to become the Presiding Officer under s.
7(3) of the Act since he did not hold any judicial office in
India for not less than 7 years.
The contention of respondent No. 2 was that he held such
a judicial office because he worked as Upper Division
Clerk-cum-Head Clerk, Assistant Settlemeat Officer and
Registrar of the Pensions Appeals Tribunals. The contention
that he held judicial office was not pressed before the High
Court and in this Court by the State. The State Government,
however. supported the award on the plea that Mr. Gupta’s
appointment cannot be challenged in collateral proceedings
filed in the High Court for challenging the award.
Re Toronto & Co. v. City of Toronto 46 Dominion Law
Reports 547; Bhaskara Pillai and Anr. v. State [1950] 5DLR
Travailcore-Cochin 382 and Queen Empress v. Ganga Ram ILR 16
All. 136 distinguished.
Dismissing the appeal,
HELD: 1. Considering the nature and course of proceedings in
the instant it is impossible to hold that the challenge to
Mr. Gupta’s appointment was made in a collateral proceeding.
The appointment of Mr. Gupta could not have been challenged
before him. The challenge to his appointment having been
made by writ petition under Articles 226 and 227 of the
Constitution to which Mr. Gupta was impleaded as a party-
respondent, the challenge was made directly in a substantive
proceeding and not in a collateral proceeding. Since he
was impleaded in the writ petition he had a clear and right-
ful opportunity to defend kid appointment. [311 C-E]
2. The mere circumstance that the first respondent did
not in so many words ask for a writ of quo warranto cannot
justify the argument that the appointment was being chal-
lenged collaterally in a proceeding taken to challenge the
award. On the averments in the writ petition it is clear
that the main and real attack on the award was the ineligi-
bility of Shri Gupta to occupy the post of a Judge of a
Labour Court in the discharge of whose functions the award
was rendered by him. [311 G-H, 312A]
307
3. The relief of certiorari asked for by the writ peti-
tion was certainly inappropriate but the High Court was
also 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 formula. The
facts necessary for challenging the appointment are stated
clearly in the writ petition and the challenge to the ap-
pointment is expressly made on the ground that the officer
was not qualified to hold the post. [312A-B]
4. The finality of the orders of the Labour Court con-
templated by s. 9(1) although widely worded must be given a
limited meaning so as to bar the jurisdiction of civil
courts in the ordinary exercise of their powers. It is
impossible to construe the provisions in derogation of the
remedies provided by Article 226 and 227 of the Constitu-
tion. [313D-E]
Bezparua (G.C.) v. State of Assam A.J.R.--1954 Assam
161, Jagannath Vinayak Kale v. Ahmadi--[1958] II L.L.J. 50
(Bom.) and Mewar Textile Mills Ltd. v. Industrial
Tribunal--A.I.R. 1951 Raj 161, approved.
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1164 of 1970.
(Appeal by Special Leave from the Order dated the 5th Sep-
tember 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 appel-
lant. 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 Karnal, 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 Indus-
trial 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 re-
spondent to this appeal.
Being aggrieved by the award, the 1 st 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 by a Division Bench by its
judgment dated March 26, 1968 the State of Haryana has filed
this appeal by special leave. The Presiding Officer of
the Labour Court was impleaded to the Writ Petition as the
2nd respondent.
308
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 appoint-
ed as a Judge of the Labour Court. Section 7(1) of the
Industrial Disputes Act provides that the appropriate Gov-
ernment 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 or 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 offical 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 Peti-
tion singly, felt that the question raised was of public
importance. He, therefore, referred the matter to a Divi-
sion 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-cure-Head Clerk. Thereafter, he worked from
January 14, 1947 to October 19, 1954 as the Registrar to the
Pensions Appeals Tribunal, Jullundur Cantonment. After
relinquishing that post, he was reverted as an Upper Divi-
sion Clerk-cum-Head Clerk, which office he held till Febru-
ary 17, 1957. Subsequentiy, he was appointed as an Assistant
Settlement officer in which post he worked fill September
1962. It is obvious, and requires no clever argument to
show, that Shri Gupta was holding clerical posts which, with
some courtesy may
309
be described as posts calling for and furnishing administra-
tive experience. As an Upper Division Clerk, even if the
duties of that post were combined with those of the Head
Clerk, Shri Gupta was nowhere in the shadow of a judicial
office. As a Registrar of the Pensions Appeals Tribunal,
Jullundur Cantonment, he was admittedly discharging adminis-
trative functions. A circumstance which seems to have
blurred the perception of the State Government perhaps was
that the Pensions Appeals Tribunal was a judicial or quasi-
judicial body and since Shri Gupta was closely associated
with it, does not matter in what capacity, he could be said
to hold a judicial office. Administrative 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 the 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 qualifications, has been lawfully chosen
to the office in question, and has fulfilled
any conditions precedent to the performance of
its duties. By being thus chosen and.
observing the precedent conditions, such a
person becomes of right entitled to the pos-
session and enjoyment of the office, and the
public, in whose interest the office is creat-
ed, is entitled of right to have him perform
its duties. If he is excluded from it, the
exclusion is both a public offense and a
private injury.
An officer de lure may be excluded from
his office by either an officer de facto or an
intruder. An officer de facto is one who by
some color of right is in possession of an
office and for the time being performs its
duties with public acquiescence though having
no right in fact.His color of right may come.
from an election or appointment made by some
officer or body having colourable but no
actual right to make it; or made in such
disregard of legal requirements as to be
ineffectual in law; or made to fill the place
of an officer illegally removed; or made in
favor of a party not having
310
the legal qualifications; or it may come from
public acquiescence in the officer-holding
without performing the precedent conditions,
or holding over under claim of right after his
legal right has been terminated; or possibly
from public acquiescence alone when accompa-
nied by such circumstances of official reputa-
tion as are calculated to induce people,
without inquiry, to submit to or invoke offi-
cial 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 au-
thority 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 direct
proceeding instituted for the purpose by the
State of by some one claiming the office de
lure, 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
all other cases the acta 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 facto cannot be questioned
collaterally."
Equally strong reliance was placed by the State Govern-
ment on a decision of the Ontario Supreme Court in Rs
Toronto N. Co. City of Tornoto (1) in which, after an exami-
nation of several American and other decisions, Meredith,
C.J.O., observed:
"That it is not open to attack, in a
collateral proceeding, the status of a de
facto Judge, having 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 Tra-
vancore-Cochin in Bhaskera Pillai and Ant. rs. State(2)
which, relying upon the passage in Cooley’s Constitutional
Limitations and the Canadian case, held that the appoint-
ment of the Chief Justice of that Court could not be ques-
tioned 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.
311
the Allahabad High Court in Queen Empress vs. Garsa Sam(1)
in which it was held that where a person had in fact been
exercising all the functions of a Judge of the High Court,
the appointment even if apparently ultra vires must never-
theless be presumed, in the absence of fuller information,
to have been legally made in the exercise of some power,
unknown to the Court, vested in the Secretary of State for
India.
Broadly, the starting point and the 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 the 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 collat-
eral 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 gave the award, filed a writ peti-
tion 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, there-
fore, 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 the 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 that he was not qualified to fill the post to which
he was appointed. Having been impleaded to the writ peti-
tion he had a clear and rightful opportunity to defend his
appointment. The proceedings by way of a 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 proceed-
ing 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 the 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 justi-
fy 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 SCI/76
312
was the ineligibility of Shri Gupta to occupy the post of a
Judge of the Labour Court, in the discharge of whose func-
tions the award was rendered by him. The relief of certio-
rari 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 direc-
tion as it deemed fit and proper in the circumstances of
the case. There is no magic in the use of a formula. 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 qualified 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 construc-
tion of art. 376 (2) of the Constitution which confers power
on the President is determine 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 Constitu-
tion may continue to hold that office. Besides, the Chief
Justice’s appointment was challenged collaterally in appli-
cations 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. Deliver-
ing the judgment of the Court, Edge, C.J. observed at page
157: "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 presumption 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
may seem to be a lame and impotent conclusion for a Court of
Justice to arrive at concerning the validity of the appoint-
ment of one of its acting Judges, but our lack of necessary
information,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 Haryana contends that
there is one more impediment in the Court holding that Shri
Gupta was not
313
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(I) of the Act which reads thus:
"9. Finality of 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 Court, Tribunal
or National Tribunal shall be called in ques-
tion in any manner; and no act or proceeding
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 cover any and every challenge to the appoint-
ment 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 Consti-
tution. 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 enter-
tain a challenge to appointments mentioned in the sub-sec-
tion. The High Court of Assam(1), Bombay(2) and Rajasthan(3)
have taken, like the High Court of Punjab and Haryana in the
instant case, a correct view of the scope and meaning 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 appro-
priate amendment of the Constitution and their operation
cannot be whittled down by a provision like the one con-
tained 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 thankful,. to Shri Wad for
assisting the Court as amicus.
S.R. Appeal
dismissed.
(1) Bozbarua (G.C.) v. Sate of Assam----1954 Assam 161.
(2) lagannath Vinayak Kale v. Ahmedi--(1958) II L.L.J. 50
(Bom.)
(3) Mewer Textile Mills Ltd. v. Industrial.
Tribunal--A.I.R. 1951 Raj. 1961
314