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CASE NO.:

Appeal (civil) 8574-8577 of 2001

PETITIONER:

High Court of Gujarat & Anr.

RESPONDENT:

Gujarat Kishan Mazdoor Panchayat & Ors.

DATE OF JUDGMENT: 10/03/2003

BENCH:

S.B. Sinha

JUDGMENT:

J U D G M E N T

S.B. SINHA, J :

Although I agree with the conclusions arrived at by my learned

Brother, having regard to the importance of the question involved, I would

like to assign additional reasons therefor.

The High Court in exercise of its writ jurisdiction in a matter of this

nature is required to determine at the outset as to whether a case has been

made out for issuance of a writ of certiorari or a writ of quo warranto. The

jurisdiction of the High Court to issue a writ of quo warranto is a limited

one. While issuing such a writ, the court merely makes a public declaration

but will not consider the respective impact of the candidates or other factors

which may be relevant for issuance of writ of certiorari. [See R.K. Jain Vs.

Union of India and Others reported in (1993) 4 SCC 119 para 74]

A writ of quo warranto can only be issued when the appellant is

contrary to statutory rules. [See Mor Modern Cooperative Transport Society

Ltd. Vs. Financial Commissioner & Secretary to Govt. of Haryana and

Another (2002) 6 SCC 269]

When questioned, Mr. R. Venkataramani, learned senior counsel on

behalf of the respondents fairly stated that in this case the High Court was

concerned with the question as to whether a writ of quo warranto can be

issued or not. Thus, with a view to find out as to whether a case has been

made out for issuance of quo warranto, the only question which was required

to be considered was as to whether Shri N.A. Acharya fulfilled the

qualifications laid down under 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 eligibility criteria of a

Member only. It is, therefore, significant that for the purpose of

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appointment of a Member as also the President of the Court of Industrial

Arbitration the eligibility criteria remain the same.

The legitimate expectation of a Member to be promoted to the Post of

the Chairman as has been submitted by Mr. Venkataramani will, thus, have

no relevance as nobody has a vested right to be promoted.

It may be true that reference has been made by the High Court while

making the recommendations to the draft rules known as Draft Recruitment

Rules but it appears from the records that the said draft rules, purported to

have been framed by the High Court for replacing the Recruitment Rules for

the Post of President as contained at Item 34 in the Handbook of Guidelines

on Recruitment Rules of Officers under Labour and Employment

Department, Government of Gujarat, Gandhinagar, December, 1990, were

published in the year 1992.

It is now trite that draft rules which are made to lie in a nascent state

for a long time cannot be the basis for making appointment or

recommendation. Rules even in their draft stage can be acted upon provided

there is a clear intention on the part of the Government to enforce those rules

in the near future. (See Vimal Kumari Vs. State of Haryana and Others

reported in (1998) 4 SCC 114)

Sub-section (4) of Section 10 of the Act states that a 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. Article 217 of the

Constitution of India inter alia lays down the qualification to be possessed

by a citizen for his appointment as a High Court Judge. It has not been and

could not be disputed that Shri N.A. Acharya has the requisite qualification.

The other and further qualifications for appointment of a member have been

laid down in the provisos appended thereto. The qualifications specified in

the said provisos are meant for those who do not satisfy the requirements of

main provision. First and Second provisos appended to sub-section (4) of

Section 10 are exceptions to the main provision. Once it is held that sitting

judicial officers can be appointed either as Member or President of the Court

of Industrial Arbitration, indisputably the High Court is required to be

consulted therefor. It is for the High Court and High Court 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.

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.

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.

In Jt. Registrar of Cooperative Societies, Kerala Vs. T.A. Kuttappan

and Others [(2000) 6 SCC 127] while interpreting the provisions dealing

with the question as regard the duties and functions of Committee of

Management of the Society constituted under Kerala Cooperative Societies

Act, 1969 this Court observed:

"The duty of such a committee or an administrator

is to set right the default, if any, and to enable the

society to carry on its functions as enjoined by law.

Thus, the role of an administrator or a committee

appointed by the Registrar while the Committee of

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Management is under supersession, is, as pointed

out by this Court, only to bring on an even keel a

ship which was in doldrums. If that is the

objective and is borne in mind, the interpretation

of these provisions will not be difficult."

In Associated Timber Industries and Others Vs. Central Bank of India

and Another [(2000) 7 SCC 93], while considering the provisions of the

Bombay Money Lenders Act vis--vis the provisions of other Acts upon a

purposive and meaningful interpretation held that the banks do not come

under the purview of the Assam Money Lenders Act.

In United Bank of India, Calcutta Vs. Abhijit Tea Co. Pvt. Ltd. and

Others [(2000) 7 SCC 357] this Court noticed:

"25. In regard to purposive interpretation, Justice

Frankfurter observed as follows:

Legislation has an aim, it seeks to obviate

some mischief, to supply an inadequacy, to

effect a change of policy, to formulate a plan

of government. That aim, that policy is not

drawn, like nitrogen, out of the air; it is

evidenced in the language of the statute, as

read in the light of other external

manifestations of purpose [Some Reflections

on the Reading of Statutes, 47 Columbia LR

527, at p. 538 (1947)].

26. That principle has been applied to this very Act

by this Court recently in Allahabad Bank Vs.

Canara Bank. If the said principle is applied, it is

clear that the provision in Section 31 must be

construed in such a manner that, after the Act, no

suit by the Bank is decided by the civil court and

all such suits are decided by the Tribunal."

In K. Duraisamy and Another Vs. State of T.N. and Others [(2001) 2

SCC 538] it was held:

"The mere use of the word 'reservation' per se

does not have the consequence of ipso facto

applying the entire mechanism underlying the

constitutional concept of a protective reservation

specially designed for the advancement of any

socially-and-educationally-backward classes of

citizens or for the 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."

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.

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.

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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 statute is best

interpreted when we know why it was enacted. With this

knowledge, the statute must be read, first a whole and

then section by section, clause by clause, phrase by

phrase and word by word. If a statute is looked at, in the

context of its enactment, with the glasses of the statute

maker, provided by such context, its scheme, the sections

clauses, phrases and words may take colour and appear

different than when the statute is looked at without the

glasses provided by the context. With these glasses we

must look at the Act as a whole and discover what each

section, each clause, each phrase and each word is meant

and designed to any as to fit into the scheme of the entire

Act. No part of a statute and no word of a statute can be

construed in isolation, Statutes have to be construed so

that every word has a place and everything is in its

place.."

In "The Interpretation and Application of Statutes" by Reed

Dickersen, the author at page 135 has discussed the subject while dealing

with the importance of context of the statute in the following terms:-

".The essence of the language is to reflect,

express, and perhaps even effect the conceptual matrix of

established ideas and values that identifies the culture to

which it belongs. For this reason, language has been

called 'conceptual map of human experience'."

The purport and object of the Statute is to see that a Tribunal becomes

functional and as such the endeavors of the Court would be to see that to

achieve the same, an interpretation of Section 10 of the Act be made in such

a manner so that appointment of a President would be possible even at the

initial constitution thereof.

Such a construction is permissible by taking recourse to the doctrine

of strained construction, as has been succinctly dealt with by Francis

Bennion in his Statutory Interpretation. At Section 304, of the treatise;

purposive construction has been described in the following manner:-

"A purposive construction of an enactment is one

which gives effect to the legislative purpose by

(a) following the literal meaning of the enactment

where that meaning is in accordance with the legislative

purpose (in this Code called a purposive-and-literal

construction), or

(b) applying a strained meaning where the literal

meaning is not in accordance with the legislative purpose

(in the Code called a purposive-and-strained

construction).

In DPP vs. Schildkamp (1971) AC 1, it was held that severance may

be effected even where the 'blue pencil' technique is impracticable.

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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 deal with an eventuality

that required to be dealt with if the purpose of the Act

was to be achieved; and thirdly, it was possible to state

with certainty what were the additional words that would

have been inserted by the draftsman and approved by

Parliament had their attention been drawn to the omission

before the Bill passed into law. Unless this third

condition is fulfilled any attempt by a court of justice to

repair the omission in the Act cannot be justified as an

exercise of its jurisdiction to determine what is the

meaning of a written law which Parliament has passed."

In Principles of Statutory Interpretation of Justice G.P. Singh, 5th

Edition, 1992, it is stated:

"The Supreme Court in Bangalore Water Supply vs. A.

Rajappa (AIR 1978 SC 548) approved the rule of

construction stated by DENNING, L.J. while dealing

with the definition of 'Industry in the Industrial Disputes

Act, 1947. The definition is so general and ambiguous

that BEG, C.J. said that the situation called for "some

judicial heroics to cope with the difficulties raised". K.

IYER, J., who delivered the leading majority judgment in

that case referred with approbation the passage extracted

above from the judgment of DENNING,L.J. in Seaford

Court Estates Ltd. vs. Asher. But in the same

continuation he also cited a passage from the speech of

LORD SIMONDS in the case of Magor & St. Mellons

R.D.C. vs. Newport Corporation, 1951(2) All ER 839

as if it also found a part of the judgment of DENNING,

L.J. This passage reads: "The duty of the court is to

interpret the words that the legislature has used. Those

words may be ambiguous, but, even if they are, the

power and duty of the Court to travel outside them on a

voyage of discovery are strictly limited." As earlier

noticed LORD SIMONDS and other Law Lords in

Magor and St. Mellon's case were highly critical of the

views of DENNING, L.J. However, as submitted above,

the criticism is more because of the unconventional

manner in which the rule of construction was stated by

him. In this connection it is pertinent to remember that

although a court cannot supply a real casus omissus it is

equally clear that it should not so interpret a statute as to

create a casus omissus when there is really none."

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In Hameedia Hardware Stores vs. B. Mohan Lal Sowcar reported in

(1988) 2 SCC 513 at 524 the rule of addition of word had been held to 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 own'. If the two sub-clauses are not so read,

it would lead to an absurd result.

In Punjab Land Development and Reclamation Corporation Ltd.,

Chandigarh vs. Presiding Officer, Labour Court, Chandigarh and Ors.

reported in (1990) 3 SCC 682, this Court held:

"The court has to interpret a statute and apply it to the

facts. Hans Kelsen in his Pure Theory of Law. (p. 355)

makes a distinction between interpretation by the science

of law or jurisprudence on the one hand and

interpretation by a law-applying organ (especially the

court) on the other. According to him "jurisprudential

interpretation is purely cognitive ascertainment of the

meaning of legal norms. In contradistinction to the

interpretation by legal organs, jurisprudential

interpretation does not create law". "The purely cognitive

interpretation by jurisprudence is therefore unable to fill

alleged gaps in the law. The filling of a so-called gap in

the law is a law-creating function that can only be

performed by a law-applying organ; and the function of

creating law is not performed by jurisprudence

interpreting law. Jurisprudential interpretation can do no

more than exhibit all possible meanings of a legal norm.

Jurisprudence as cognition of law cannot decide between

the possibilities exhibited by it, but must leave the

decision to the legal organ who, according to the legal

order, is authorised to apply the law". According to the

author if law is to be applied by a legal organ, he must

determine the meaning of the norms to be applied : he

must 'interpret' those norms (p. 348). Interpretation

therefore is an intellectual activity which accompanies

the process of law application in its advance from a

higher level to a lower level. According to him, the law

to be applied is a frame. "There are cases of intended or

unintended indefiniteness at the lower level and several

possibilities are open to the application of law." The

traditional theory believes that the statute, applied to a

concrete case, can always supply only one correct

decision and that the positive-legal 'correctness' of this

decision is based on the statute itself. This theory

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describes the interpretive procedure as if it consisted

merely in an intellectual act of clarifying or

understanding; as if the law-applying organ had to use

only his reason but not his will, and as if by a purely

intellectual activity, among the various 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."

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 interpreting any of the

provisions of the Act. A purposive approach for

interpreting the Act is necessary."

In Public Services Tribunal Bar Association Vs. State of U.P. and

Another [2003 AIR SCW 653] this Court noticed Section 3 of U.P. Public

Services (Tribunal) Act which provided for different qualifications for

Chairman, Vice-Chairman (Judicial) and Vice-Chairman (Administration) as

also Judicial and Administrative Members of the Service Tribunal. A Bench

of this Court of which one of us (Hon'ble the Chief Justice of India) was a

member held that as appointment of Chairman, Vice Chairman (Judicial),

Vice-Chairman(Administration) and Members are to be made in

consultation with the Chief Justice of the High Court, the Act is intra vires.

The said decision is also a pointer to show that whenever a post is to

be filled up by the Judicial Member who is eligible to be appointed as a High

Court Judge, consultation with the High Court is imperative.

Furthermore, if the interpretation of Section 10 of the Act as

propounded by the High Court is accepted, no President can be appointed

directly by the State at the time of Constitution of the Court. Such a

situation, therefore, would lead to absurdity if it is held that the candidate

must first be appointed as a Member and the Post of President can be filled

up inter alia by way of promotion or otherwise. When literal interpretation

of a provision leads to absurdity or manifest injustice, it is trite, the same

must be avoided.

Furthermore, if the legislature intended to lay down different

qualifications or eligibility criteria for the President and the Members, it

would have expressly stated so. We may in this connection notice the

provisions of the Consumer Protection Act.

In absence of an express provision providing either for different

qualification or eligibility criteria or the selection process, the same

procedure for appointment must be followed.

Both under the existing rules as also the Draft Rules mode and manner

of appointment have been laid down. Even in absence of the Draft Rules in

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terms of Rule 34 of the Recruitment Rules for the President of Industrial

Court appointment can be made by nomination. Thus, appointment to the

Post of President could be made by way of nomination also subject to the

nominees holding requisite qualifications laid down therefor.

It is further trite that non-mentioning or wrong mentioning of a

provision of law would not invalidate an order if a source therefor can be

found out either under general law or a statute law.

It is further well-settled that when there are two sources of power,

even if one is not applicable, the order will not become invalid if the power

of the statutory authority can be traced to another source.

For the reasons aforementioned, taking any view of the matter it

cannot be said that the appointment of Shri N.A. Acharya was illegal or

invalid. The impugned judgment, therefore, cannot be sustained which is,

therefore, set aside. The appeal is allowed.