T R MISHRA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is a public interest Litigation by the appellants who are legal practitioners and they are supported by respondents Nos. 4 to 20 who are Labour Unions They are all practising before the Labour Courts in Gujarat They are challenging the transfers of Labour Court Judges by the Government According to them this power of transfer control and superintendence over the labour judiciary is vested in the High Court under Arts 235 and 227 of the Constitution and therefore these transfers of 11 Labour Judge by the impugned order dated 28/06/1984 Annexure A to the petition are without any authority or competence They have also challenged the constitutional validity of Sec. 9 of the Bombay Industrial Relations Act 1946 under which the State Government has the power to constitute Labour Courts and to appoint persons having qualifications specified in sub-sec. (2) to Sec. 9. The said Section reads as follows

(2.) It is submitted that the independence of Judiciary and separation of judicial powers from the executive Government are fundamental and basic in the scheme of the Constitution and Art 50 gives the Directive Principle of State Policy as under; The State shall take steps to separate the judicialy from the executive in the public service of the State In the appeal following additional ground has been permitted to be raised: The appellants submit that Sec. 9 of the Bombay Industrial Relations Act 1946 is so far as It empowers the State Government to appoint and transfer Labour Court Judges without following the provisions of Arts 233 234 235 and 236 of the Constitution of India and in violation thereof and without Intervention of the High Court is ultra vires the said articles and is therefore unconstitutional and of no effect. There are some other contentions also which we will mention later on

(3.) The learned single Judge dismissed the petition holding that it is not a correct position that all the quasi judicial authorities and Tribunals are subject to the control of the High Court so much so that the High Court should exercise administrative control in respect of transfer and other matters as it does for the District Courts and other subordinate Courts. Other contentions were also negatived. In the Letters Patent Appeal it is contended that the transfer of these Labour Court Judges is violative of constitutional provisions and so also Sec. 9 which gives the power to appoint which would include the power to dismiss and it is submitted that the High Court alone has the administrative power to transfer those Judges as they are subordinate Courts and District Judges or Civil Judicial Service including the District Judges as contemplated by Art. 236 of the Constitution. It is also submitted that under Art. 227 of the Constitution also the High Court has power of superintendence and this power includes the power of transfer and for consultAtion in the matter of transfer of Labour Court Judges. Similar power of superintendence over the Labour Courts is conferred on Industrial Courts under Sec. 85 the Bombay Industrial Relations Act and the Industrial Court which consists of three members can take a decision about transfer and/or can control transfer and the President of the Industrial Court alone has no such power.