Judgement

HIDAYATULLAH, C.J.I. : This appeal on certificate arises from a petition under Art 226 of the Constitution of India filed in the High Court at Calcutta by the appellant, the Statesman Private Ltd. This company prints and publishes daily and weekly newspapers and undertakes general printing work at Calcutta. By that writ petition the Company asked for a writ of certiorari against the Second Labour Court, West Bengal with a view to quashing an award, 21, September 1960, reinstating one Sheikh Kaloo, one of its employees. The Company had dismissed the said Kaloo after holding an inquiry but the Second Labour Court ordered his reinstatement with half wages for the period of his forced unemployment. The writ petition was heard by B. N. Banerjee J. and by his order, 15th February 1962, the petition was granted and the order of the Tribunal was quashed. The workmen who had sponsored the case of Kaloo appeared in the High Court. During the course of the appeal an application was filed by the Company stating that the Tribunal presided over by Mr. H. R. Deb was not qualified in law to adjudicate upon the dispute inasmuch as the appointment of Mr. Deb was in violation of the provisions of S. 7 (3) (d) of the Industrial Disputes Act, 1947. On June 16,1964 by another affidavit the particulars of the services of Mr Deb were stated to show that Mr. Deb had not held a judicial office in India for not less than 7 years and as this was a condition precedent his appointment was illegal and the award made by him was a nullity. The Company stated that this was so held in another matter. Matter No 120/1961 decided on, July 28, 1965 between Shree Hanuman Foundries v. H. R. Deb (FB) (Cal). The appeal was heard and allowed and the order of B. N. Banerjee J. was set aside but liberty was given to the Company, on terms as to costs, to amend the original petition and the learned Judge was directed to hear and determine the amended petition. The amendment was effected on August 5, 1964. On September 3, 1964 the Divisional Bench in Hanuman Foundries case, Matter No. 120 of 1961, D/. 28-7-1965 (FB) (Cal) delivered judgment. Two separate judgments were delivered. Bachawat J. held that the provisions of S. 7 (3) (d) of the Industrial Disputes Act were directory while Basu J. held them to be mandatory. Bachawat J. also held that even if the appointment of Mr. Deb was not regular, the doctrine of de facto determination by a Court apparently possessed of jurisdiction applied and the order could not be questioned. Basu J. held to the contrary. The matter was then referred to Sinha J. (as he then was) who held that (a) Mr. Deb had not held judicial office for 7 years prior to his appointment; (b) that S. 7 (3) (d) of the Industrial Disputes Act was mandatory; (c) a writ of quo warranto must therefore issue against him; (d) that the de facto doctrine applied; and (e) proceeding for a writ of certiorari was collateral and, therefore, not available to quash the award of Mr. Deb.

2. The case of Hanuman Foundries, Matter No. 120 of 1961, D/- 28-7-1965 (FB) (Cal) as decided by the Full Bench we, followed in the present writ petition by B. C. Mitra J. on June 6, 1966 and the writ petition was dismissed. The Company appealed against the judgment of B. C. Mitra J. Sinha C. J. and A. K Mookerjee J. dismissed the appeal, January 5, 1967 but granted a certificate and this appeal is the result.

3. Although this appeal is quite separate from the Hanuman Foundries case, Matter No 120 of 1961, D/- 28-7-1965 (FB) (Cal) the decision in that case was the one canvassed before us. After hearing the arguments in the case we are satisfied that the appeal must fail on the ground that Mr. Deb was competent to exercise jurisdiction and his appointment cannot be called in question. In this view of the matter the very interesting and learned discussion of the de facto doctrine need not detain us and we express no opinion about it.

4. The question falls to be considered on the words a