State Of Kerala vs B. Renjit Kumar & Ors

State of Kerala ..... Appellant

Versus B. Renjith Kumar & Ors. ..... Respondents

JUDGMENT

Lokeshwar Singh Panta, J.

1. This appeal by the State of Kerala, arises out of the

judgment and order dated 5th December, 2003, passed by the

High Court of Kerala at Ernakulam in O.P. No, 8947/03(M).

By the impugned order, while allowing the writ petition of the

respondents herein, directions have been issued that order at

Exhibit P8 shall be modified so as to treat the writ petitioners

at par with the District Judges in the matter of time scale as

well as the selection grade and the needful should be done 2

within three months from the date of the certified copy of the

judgment.

2. Facts, in brief leading to the filing of the present appeal

are as follows:-

The respondents herein were the members of the Bar. In

the year 1993, respondent Nos. 1 and 2 were selected and

appointed as Presiding Officers of the Industrial Tribunals

whereas respondent No. 3 was selected and appointed as

Presiding Officer in the year 1996 in the State of Kerala. They

continued to work as such. The claim of the respondents in

the writ petition was that prior to the year 1998, the State

Government had granted to them pay scales at par with the

District Judges. However, when Judicial Officers were granted

benefit of revision of pay scales in December, 2001 with

retrospective effect from March, 1996, similar benefit was

denied to them. The respondents submitted a representation

to the State Government seeking extension of the benefit of

interim relief in terms of order vide G.O. dated 30.5.1998

granting interim relief at the rate of 35% of pay as on 1.7.1996

to the members of the Subordinate Judiciary in the State. The 3

said representation was decided and rejected vide order dated

15.5.1999. On 25.11.1999, the respondents filed O.P. No.

20490 of 1999 in the High Court seeking direction to the State

Government to grant interim relief at par with the District

Judges. The said writ petition was allowed, with a direction to

the State Government to issue necessary orders in this regard

by extending the benefit of interim relief at the rate of 35%

(basic pay + D.A.) with effect from 1.1.1996 as directed in

Exhibit P4 to the Judicial Officers. It was the case of the

respondents before the High Court that the State Government

on 18.4.2000 in pursuance of the directions of the High Court

sanctioned interim relief to the Presiding Officers of the

Industrial Tribunals as well. On 12.1.2001, Government of

Kerala vide G.O.(MS) No. 231/2001/Home dated 12.12.2001

decided to grant the scales of pay to the members of

Subordinate Judiciary as recommended by the National

Judicial Commission (Shetty Commission). The respondents

were denied the said benefits of the scales of pay and,

accordingly, they submitted representation on 7.1.2002 to the

Secretary to the Government, (Labour and Rehabilitation 4

Department) requesting for the grant of same scales of pay as

that of the District Judges in the State. A copy of the order

dated 4.2.2003 by which revision of pay was allowed to the

District Judges was placed on the record of the High Court as

Exhibit P8. By the impugned order, the Presiding Officers

(Industrial Tribunals) were granted the pay scale of Rs.

16,300-400-18,300/- with effect from March 1, 1997.

However, the District Judges had been placed in the scale of

Rs. 16,750-400-19,150-420-20,500/-. They also had been

granted a selection grade of Rs. 18,750-400-19,150-450-

20,500-500-23,850/-. The respondents complained that the

action in treating them differently from the District Judges

suffers from the vice of discrimination and arbitrariness.

Thus, they sought the intervention of the High Court to quash

order - Exhibit P8 of the State Government and further

direction to grant same scale of pay as has been sanctioned in

the case of District Judges.

3. The writ petition was contested by the State. In the

counter affidavit filed on its behalf by the Under Secretary,

Department of Finance, it was inter alia stated that in the 5

State of Kerala while the Presiding Officers of the Labour

Court are appointed under the provisions of Article 234 of the

Constitution of India, the Presiding Officers of Industrial

Tribunals are not so appointed under Article 234 of the

Constitution of India. Thus, the Presiding Officers of the

Industrial Tribunals are not entitled to the same scales of pay

as recommended by the National Judicial Pay Commission

(Shetty Commission) for the members of the Higher Judiciary.

On these premises, it was claimed that the action of the State

Government was legal and valid.

4. Taking note of the contentions and claims and counter

claims of the respective parties, the High Court has felt that

the mere fact that the Presiding Officers of the Industrial

Tribunals are not appointed on the recommendation of the

High Court or that they are not under the control of the High

Court cannot, by itself, be a good reason and adequate ground

for treating them differently over a period of 30 years.

Consequently, the High Court issued the afore-noted

directions which are in question in this appeal by special

leave.

6

5. Mr. G. Prakash, learned counsel appearing for the

appellant-State of Kerala, contended that the High Court erred

in holding that the Presiding Officers of the Industrial

Tribunals are entitled to the same revised scales of pay as

recommended by the National Judicial Commission (Shetty

Commission) for the members of the Higher Judicial Services

merely on the assumption that prior to the year 1998 the

Presiding Officers of the Industrial Tribunals were getting the

same scale at par with the District Judges. He also contended

that the services of the Presiding Officers of the Industrial

Tribunals cannot be equated with that of the Judicial Officers

who are appointed under Articles 233 and 234 of the

Constitution of India.

6. Ms. Malini Poduval, learned counsel appearing on behalf

of respondent Nos. 1 to 3 and Mr. C.N. Sreekumar, appearing

for C.N. Sasidharan and K. Kanakachandran, who have filed

I.A. No. 2 for their impleadment as additional respondents in

this appeal in support of the judgment of the High Court, have

contended that the claim of the Presiding Officers of the

Industrial Tribunals before the High Court was that they be 7

granted scale of pay fixed for District Judges as the duties,

functions and volume of work of the Industrial Tribunals are

equal to that of District Judges and earlier they were placed in

identical pay scales till the revision of pay scale of the Judicial

Officers in the year 1998. According to the learned counsel,

the Presiding Officers of the Industrial Tribunal do not claim

that they belong to the category of District Judges who are

appointed under Article 233 of the Constitution of India. The

learned counsel then contended that the well-reasoned order

of the High Court does not suffer from any infirmity or

perversity and this Court normally should not interfere in the

well-merited order impugned by the appellant-State before

this Court while exercising its jurisdiction under Article 136 of

the Constitution of India.

7. The Labour Courts and the Industrial Tribunals have

been constituted in the State of Kerala under Sections 7 and

7A of the Industrial Disputes Act, 1947 (hereinafter referred to

as "the ID Act, 1947"). In the present case, we are concerned

with the appointments of Presiding Officers of the Industrial 8

Tribunals constituted under Section 7A of the ID Act, 1947

which reads as under:-

"7A. Tribunals - (1) The appropriate Government may, by notification in the Official Gazette, constitute one or more Industrial Tribunals for the adjudication of industrial disputes relating to any matter, whether specified in the Second Schedule or the Third Schedule, [and for performing such other functions as may be assigned to them under this Act].

(2) A Tribunal shall consist of one person only to be appointed by the appropriate Government.

(3) A person shall not be qualified for appointment as the presiding officer of a Tribunal unless-

(a) he is, or has been, a Judge of a High Court; or (aa) he has, for a period of not less than three yeas, been a District Judge or an Additional Judge

(b) * * * * * *

(c) he has for not less than five years been a presiding officer of a Labour Court, constituted under any law for the time being in force;

(d) he holds a degree in law of a University established by law in any part of India and is holding or has held an office not lower in rank than that of Assistant Commissioner of Labour under the State Government for not les than ten years.

(4) The appropriate Government may, if it so thinks fit, appoint two persons as 9

assessors to advise the Tribunal in the proceeding before it."

8. By the Industrial Disputes (Kerala Amendment) Act, [Act

No. 28 of 1961], in its application to the State of Kerala under

sub-Section (3) of Section 7A of the ID Act, 1947 for Clause (a)

the following clause has been substituted. The substituted

clause (a) in sub-Section (3) reads as under:-

"(a) He is or has been a Judicial Officer not below the rank of a District Judge, or is qualified for appointment as a Judge of a High Court; or"

9. Thus, in the State of Kerala, in terms of the above

substituted clause (a) in sub-Section (3) of Section 7A of the

ID Act, 1947, a judicial officer not below the rank of District

Judge is qualified to be appointed as Presiding Officer of the

Industrial Tribunal. Indisputably, prior to 1.7.1988 the pay

scale of the Presiding Officers of the Industrial Tribunals and

District Judges was Rs.2600-3800/-. The District Judges

were granted selection grade in the scale of Rs. 3700-4200/-.

All the three Industrial Tribunals Services at that time were 1

also placed in the selection grade of Rs. 3700-4200/-.

Government of Kerala appointed Pay Commission chaired by

Justice T.Chandrashekhara Menon to make recommendations

in the matter of revision of pay scales in the case of

Government employees. The Commission recommended

revised scale of Rs. 3175 - 4605/- to the Industrial Tribunals

(Entry Cadre) and Rs. 4435-5285/- to the three Industrial

Tribunals who were granted selection grade. The Commission

recommended the same scale of pay to the District Judges,

Sessions Judges and selection grade District Judges. The

Government of Kerala accepted the above recommendations

and revised the pay scales of Industrial Tribunals and District

and Sessions Judges as recommended by the Pay Commission

with effect from 1.7.1988. In the year, 1993, Government

issued G.O. (P) No. 600/93/Fin. dated 08.12.1993 revising the

pay scales of State Government employees w.e.f. 01.03.1992.

By the said order, the scale of pay of Industrial Tribunals were

revised to Rs. 5100-5700/-. In the above pay revision order in

respect of District Judges and members of Subordinate

Judiciary, it was noted that revised scale will be separately 1

ordered. It was the admitted case of the State Government

that later on the Government issued separate order revising

the pay scales of District Judges to Rs. 5100-5700/- which is

the same scale of pay granted to the Industrial Tribunals.

Indisputably, the Government of India based on the

recommendations of this Court by resolution dated 21.3.1994

constituted the First National Judicial Pay Commission to go

into the question of the pay scales and to recommend uniform

scale of pay for the Subordinate Judiciary in the States and

Union Territories. Accordingly, National Judicial Pay

Commission (Shetty Commission) recommended pay revision

to the District Judges and other members of the Subordinate

Judiciary in the year 1998. It is not in dispute that the

officers who presided over the Labour Courts and those

appointed as Presiding Officers of the Industrial Tribunals do

decide disputes under the ID Act, 1947. There is no

qualitative difference in the nature of functions or duties

attached to the categories of posts. This parity having been

recognised and accepted by the State Government for more

than 30 years, the High Court, in our view, has rightly 1

observed that the mere fact that the Constitution refers to the

appointment of District Judges alone cannot, by itself, be a

good ground for treating the Presiding Officers of the

Industrial Tribunal and the District Judges differently. The

High Court held that even the Presiding Officers of the

Industrial Tribunals are not outside the ambit of the

Constitution as the protection of rules framed under Article

309 as also under Article 311 is available to them. The State

Government had granted pay scale at par with that of the

District Judges before the recommendations of the pay scales

of the District Judges by the Shetty Commission by which

District Judges were placed in higher scales which benefit has

been denied to the Presiding Officers of Industrial Tribunals

merely on the ground that the Presiding Officers of the

Industrial Tribunal are not appointed under Article 233 of the

Constitution of India nor they are appointed to the Judicial

Services of a State under Article 234 of the Constitution. The

action of the State Government in treating the officers

presiding over the Industrial Tribunal differently from the

District Judges in the matter of pay scales on its face is in 1

violation of Article 14 of the Constitution of India. The

essential educational and professional qualifications for

appointment of the Presiding Officer of the Industrial

Tribunals are identical to that of the appointment of District

Judge. The High Court in its order dated 25.11.1999 passed

in O.P. No. 20490/1999-C filed by the respondents noticed

that in the counter affidavit filed by the State Government in

the said writ petition, it was stated: "that the duties, functions

and scales of pay of the Presiding Officers of the Industrial

Tribunals are equal to that of the District Judges. The request

for granting 35% of the interim relief was taken up with the

Pay Revision Committee and on the basis of the remarks of

the Pay Revision Committee the respondents have informed

the Industrial Tribunals that they would continue to get two

instalments to interim relief and they need not be allowed 35%

of the interim relief." On this premise, the High Court in

paragraph 6 of its order observed as under:-

"When the Government admits that the duties, functions and scales of pay of the Industrial Tribunals are equal to that of District Judges, I do not find any justification for not granting the interim relief of 15% 1

granted to the Judicial Officers as per Exhibit P4 to the Petitioners. Anyway, the Government has promised that they will implement the report of the First National Judicial Pay Commission. In Exhibit P4 also it has been stated that the interim relief of 35% granted will be fully adjusted against and included in the package on the final recommendation of the First National Judicial Pay Commission. Therefore, there was no justifiable reason not to apply these principles to the petitioners."

10. The ratio of the judgment in Chandra Mohan v. State

of U.P. & Ors. AIR (1966) SC 1987, relied upon by the

appellant-State has no bearing upon the legal proposition and

factual situation involved in the case on hand. In the said

case, the question before this Court was in regard to the

interpretation of the expression, "the service" in Clause (2) of

Article 233 of the Constitution. This Court held that the

Chapter dealing with "subordinate courts" in which the

expression "the service" appears indicates that the service

mentioned therein is the service pertaining to courts. That

apart, Article 236(2) defines the expression "judicial service" to

mean a service consisting exclusively of persons intended to 1

fill the post of District Judge and other civil judicial posts

inferior to the post of District Judge. The expressions

"exclusively" and "intended" emphasise the fact that the

judicial service consists only of persons intended to fill up the

posts of District Judges and other civil judicial posts and that

is the exclusive service of judicial officers. In the present case,

the respondents' claim before the High Court was confined to

equal scale of pay to that of the District Judges. This was

based on the fact that the respondents are discharging similar

duties and functions in the administration of justice and their

scale of pay was equal to that of District Judges till revision of

pay scales of the Judicial Officers in the year 1998. The

Industrial Tribunals are indisputably judicial tribunals

manned by legal professionals who are eligible to be appointed

as District Judges or Judges of the High Courts. The

Presiding Officers are exercising judicial powers and duties

under the ID Act, 1947 and their decisions are subject matter

of challenge before the High Court by way of writ petition. The

only difference is their source of recruitment. 1

11. Looking to the nature of duties and functions of these

respondents, we are of the opinion that there is no reason to

treat them differently. Once these persons are already working

for more than three decades discharging the same functions

and duties, we see no reason why the same benefit should not

be given to the respondents and other similarly situated

Presiding Officers of the Tribunal who are the applicants

before us in IA No. 2/2004.

12. In State of Maharashtra v. Labour Law

Practitioners' Association [(1998) 2 SCC 688], the question

before the High Court was whether notification dated

8.3.1979 issued by the State of Maharashtra under the ID Act,

1947 and the Bombay Industrial Relations Act and the

amended Section 7 of the ID Act, 1947 insofar as these

provisions authorised the appointment of Assistant

Commissioners of Labour working as Judges of the Labour

Court were void and illegal and contrary to Article 234 of the

Constitution. There was also a prayer in the writ petition for a

direction to the State of Maharashtra to comply with the

provisions of Article 234 of the Constitution while making 1

appointments of judges of the Labour Court. A learned Single

Judge of the High Court set aside the notification of 8.3.1997

and also gave a direction to the State of Maharashtra to

comply with the provisions of Article 234 of the Constitution

while appointing Judges of the Labour Court. Being aggrieved

by this judgment and order, the appellant-State of

Maharashtra preferred an appeal before Division Bench of the

High Court which appeal has been dismissed. Thus the State

of Maharashtra filed an appeal before this Court. This Court

while dealing with and interpreting the provisions of Articles

233, 234, 235, 236(a) and (b) and Section 3(17) of General

Clauses Act, Bombay Industrial Relations Act, 1946 and

Maharashtra Recognition of Trade Unions and Prevention of

Unfair Labour Practices Act, 1971, held: (Para 5 SCC p. 692)

"5. There is not much difficulty in holding 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, the Bombay Industrial Relations Act and the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, would have been within the jurisdiction of the ordinary civil courts to 1

decide, although the ordinary civil courts may not be able to grant all the reliefs that are contemplated by these Acts. The Labour Courts are, therefore, courts and decide disputes that are civil in nature."

In paragraph 6 (see pp. 692-693), it was held:-

"6. In the case of Bharat Bank Ltd. v.

Employees AIR [1950] SC 459, this Court considered whether an Industrial Tribunal was a court. It said that one cannot go by mere nomenclature. One has to examine the functions of a Tribunal and how it proceeds to discharge those functions. It held that an Industrial Tribunal had all the trappings of a court and performed functions which cannot but be regarded as judicial. The Court referred to the Rules by which proceedings before the Tribunal were regulated. The Court dwelt on the fact that the powers vested in it are similar to those exercised by civil courts under the code of Civil Procedure when trying a suit. It had the power of ordering discovery, inspection etc. and forcing the attendance of witnesses, compelling production of documents and so on. It gave its decision on the basis of evidence and in accordance with law. Applying the test laid down in the case of Cooper v. Wilson, [1937] 2 K.B. 309 at p. 340, this Court said that "a true judicial decision presupposes an existence of dispute between two or more parties and then involves four requisites :- (1) the presentation of their case by the parties; (2) ascertainment of facts by means of 1

evidence adduced by the parties often with the assistance of argument; (3) if the dispute relates to a question of law, submission of legal, arguments by the parties; and (4) by decision which disposes of the whole matter by findings on fact and application of law to facts so found, Judged by the same tests, a Labour Court would undoubtedly be a court in the true sense of the term. The question, however, is whether such a court and the presiding officer of such a court can be said to hold a post in the judicial service of the State as defined in Article 236 of the Constitution."

Further paras 10, 11 and 12(see pp694-695:

"10. The District Judge, therefore, covers a judge of any Principal Civil Court of Original Jurisdiction. With an increase in the numbers of a specialised courts and tribunals which are being set up to deal with specific kinds of civil litigation which would otherwise have been dealt with by the ordinary civil courts, we now have a number of specialised courts exercising different categories of civil original jurisdiction. It can be specialised civil original jurisdiction pertaining to Labour and Industrial disputes specified in the relevant Acts as in the case of Labour and Industrial Courts, or it could be pertaining to recovery of bank debts and so on. The structure of civil courts exercising original jurisdiction is no longer monolithic. The judge of the Principal Civil Court heading 2

the concerned set of courts under him and exercising that jurisdiction can also fall in the category of a "District Judge" by whatever name called. Learned single judge and learned Judges of the Division Bench have, therefore, held that and Industrial Court is a civil court exercising civil original jurisdiction; and the person presiding over it could well be termed as a District Judge. The term "District Judge"

should not be a confined only to the judge of the Principal Civil Court in the hierarchy of general civil courts. The term would now have to include also the hierarchy of specialised civil courts, such as a hierarchy of Labour Courts and Industrial Courts. The fact that the Chief Presidency Magistrate and the Sessions Judge were also included in the definition of "District" Judge indicates that a wide interpretation is to be given to the expression "District Judge". The extensive definition of a District Judge under Article 236 is indicative of the same.

11. Under Article 236(b) the expression "judicial service" is defined to mean "a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge." Judicial service thus postulates a hierarchy of courts with the District Judge as the head and other judicial officers under him discharging only judicial functions.

2

12. In the case of Chandra Mohan v.

State of Uttar Pradesh and Ors., AIR (1966) SC 1987 this Court was required to consider the question of eligibility of "judicial officers" for appointment as District Judges under Article 233 of the Constitution. Under the U.P. Higher Judicial Service Rules "Judicial Officers"

were eligible for appointment as District Judges and the expression was meant to cover members of the executive department who discharged some revenue and magisterial duties also. When selection of such persons was challenged, this Court was required to consider and interpret the provisions of Articles 233 to 236 of the Constitution. The procedure for selection under the said Rules was also challenged as violative of Article 233. The Court said that the Governor could not appoint as District Judge persons from services other than the judicial services. A person who is in the police, excise, revenue or such other service cannot be appointed as a District Judge. Dealing with the definition of "judicial service" in Article 236, this Court said that the judicial service consists only of persons intended to fill up the posts of District Judges and other civil judicial posts and that is an exclusive service only consisting of judicial officers. In so interpreting judicial service in contradistinction to executive service where some executive officers may also be performing judicial or quasi-judicial functions, this Court was at pains to emphasis the Constitutional scheme for independence of the judiciary. It said that the acceptance of this (i.e. 2

Government's) position would take us back to pre-independence days and would also cut across the well-knit scheme of the Constitution providing for independence of the judiciary. This Court, therefore, defined judicial service in exclusive terms as consisting only of judicial officers discharging entirely judicial duties. It said that having provided for appointments to that service and having entrusted the control of the said service to the care of the High Court, the makers of the Constitution would not have conferred a blanket power on the Governor to appoint any person from any service as a District Judge."

13. The principle of "equal pay for equal work" has been

considered, explained and applied in a catena of decisions of

this Court. The doctrine of "equal pay for equal work" was

originally propounded as part of the Directive Principles of

State Policy in Article 39(d) of the Constitution. Thus, having

regard to the Constitutional mandate of equality and

inhibition against discrimination in Articles 14 and 16, in

service jurisprudence, the doctrine of "equal pay for equal

work" has assumed the status of fundamental right. (see

Randhir Singh v. Union of India (1982) 1 SCC 618 and D.S. 2

Nakara v. Union of India (1983) 1 SCC 305]. In the latest

judgment, a two-Judge Bench this Court in the case of Union

of India v. Dineshan K.K. (2008) 1 SCC 586 held that if the

necessary material on the basis whereof the claim for parity of

pay scale is made is available on record with necessary proof

and that there is equal work of equal quality and all other

relevant factors are fulfilled the decision of the Central

Government denying the benefits of same rank and pay

structure to a Radio Mechanic in Assam Rifle as was given to

other Central Paramilitary Forces was held to be clearly

irrational and arbitrary and thus, violative of Article 14 of the

Constitution.

14. Having regard to the well-reasoned judgment of the

Division Bench, we are of the view that the impugned

judgment warrants no interference inasmuch as no illegality,

infirmity or error of jurisdiction could be shown before us by

the appellant-State.

15. In the result, for the reasons stated above, we find no

merit in this appeal. The appeal is dismissed accordingly.

The parties, however, are left to bear their own costs. 2

16. In view of the above, no orders on the I.A. Nos. 2 & 3 of

2004.

........................................J. (C. K. Thakker)

........................................J. (Lokeshwar Singh Panta)

New Delhi, June 5, 2008.