THE ATLAS CYCLE INDUSTRIES, LTD., SONEPAT versus THEIR WORKMEN

.J.-This is an appeal by special lenve against the Order of the Industrial Tribunal, Punjab, dated September 11, 1959, in Reference No. ::lO of 1957, overruling certain preliminary objections raised by the appellant to the - jurisidiction of the Tribunal to hear the reference. The facts are that on February 14, 1955, the Government of Punjab referred under s. lO(l)(c) of the Industrial Disputes Act, i947, hereinafter referred to as "the Act", certain disputes between the appellant and the respondents to the Industrial Tribunal. Punjab, Jullundur, for adjudication. That was numbered as lieforence No. 3 of 1955. This Tribunal had been constituted on August 29; 1953, by a Notification issued by the Government of Punjab, which is as follows :-

pp. 90–91

"In exercise of the powers conferred under section 7 of the Industrial Disputes Act, 1947 ·(Act XIV of 1947), the Governor of Punjab, in consultation with the Punjab High Court, is pleased to appoint i:lhri Avtar Narain Gujral

p. 91

Advocate, as Industrial Tribunal for Punjab." The ma.in contention pressed before us on behalf of the appellant is that Shri A.N. Gujral was not qualified under s. 7(3)(c) of the Act under which the Notification was issued to be appointed as Tribunal on August 29, 1953, as he was over sixty years of age on that dat'l, having been born on June 4, 1892, and that there was therefore no Tribunal validly constituted in existence, and that in consequence the reference to that so-called Tribunal on February 14, 1955, was wholly inoperative.

p. 91

While Reference No. 3 of 1955 was pending before the Tribunal, the provisions of the Industrial Disputes Act, 1947, were amended by the Industrial Dispute (Amendment iind Miscellaneous Provi~ions) Act, UJ56 (Act No. 36 of 1956), which came into . force on March 10, 1957. This Amendment Act repealed s. 7 of the principal Act, and replaced it by ss. 7A, 7B and 70. Section 30 of the Amendment Act contains a saving as regards proceedings in relation to any industrial dispute which had been pending before a Tribunal constituted under the ·principal Aot. Acting under this section, the Punjab Government issued on April 19, Hl5i, the following N" otilication :-

pp. 91–92

" Xo. -ll!l-1-C. Lab-57/652-l{A-In continuation of Punjab Governmont :IIemorandum Xo. :lOi8-C-Lab-5i/4224, dated the lstjllth ,'\fopch, Ul:)i, and in exercise of the powers conferred by section 7 of the Industrial Disputt>S Act, HJ47, as in force before the commen· cement. of the ludustrial Disputes (Amendment and '.\Iiscellaneous Provisions) Act, l !J5ti, read with Section 30 of the latter Act and all other powNs enabliug him in this behalf the Governor of Punjab is pleased tu extend-

p. 92

(a) the period for which the Industrial Tribunal, Punjab, Jullundur, is consi ted, and

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(h) the term of appointment of the Sole Member thereof.

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to the last day of October, I !J5i, or such date as the proceedings in relation to industrial disputes pending in the said Tribunal immediately before the I 0th l\farch, l!J57, are diaposPd of, whichever

p. 92

is earlier." To put it briefly, this Xotification extended tho life of the Tribunal constituted under the repealed s. 7, for the period spocifi~d therein, and it also continued the term of Shri A.N. Gujral, as a :\Iember thereof, for the said period.

p. 92

The contention of the appellant with reference to th is Notification is that s. ;lO of A ct 36 of l!:J5G does not authoritte tho appointment of a )!ember to the Tribunal constituted under s. 7, and that the Not,ification in so far as it continued Shri A.N. Gujral. as a l\Iembcr of tho Tribunal after his term of office had expired on Mach IO, 1957, was unauthorised· and void.

p. 92

On the same date on which the above Notification was i"su~d, t,hat is on April 19, 1957, the Government of Punjab issued a Notification under s. 7 A of the Act of which the relevant portion is as follows:-

p. 93

"No. 4194-C'.-Lab-57 /66 l-RA-In exercise of the powers conferred by Section 7 A of the Industrial Disputes Act, 19!7, as inserted by section 4 of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, (No. 36 of 1956), and all other powers enabling him in this behalf, the Governor of Punjab is pleased to constitute an Industrial Tribunal with Headquarters at Jullundur and to appoint Shri Avtar Narain Gujral, B.A., LL.B., as its Presiding Officer with effect from the date of the publication of this notification in the Official Gazette up to

p. 93

3rd June, l!l57."' It will be noticed that this Notification firstly constituted a new Tribunal being the Industrial Tribunal, Jullundur, and secondly it appointed 8hri A. N. Gnjral as its Presiding Officer np to June 3, 1957. The significance of that date is that, under s. 70 (b) enacted by the Amendment Act, 1956, the age of retirement fur members was fix<•d at sixty-five, and under that provision, Shri A .N. Gujral would have to retire on June 3, 1957. Tne Punjah Legislature intervened at this stage and enacted two statutes which are material for the ·present dispute. One of them was the Industrial Disputes (Punjab Amendment) Act 8 of Ul57. Section 3 of this Act amended s. 70 (b) of the principal Act by substituting for the words "he has attained the age of sixty-five years'', tho words "he has attained the the age of sixty-seven years". Thus the age of retirement was raised to sixLy-seven years. By the operation of this Act, the tenure of Shri A. N. Gujral could be extended from Juno 3, 1057 to .June 3, 1959, and that in fact <lono by a number of~ otifications issue<l from time to timo. The -ippellant cont<mds that this legislation wa,~ inten<led to benefit a single individ1ial Shri A.X. Gujral, and is therefore void as offending A rt. 14 of the Constitution. Tho result, accor<ling to tho appellant, is that aft.er June 3, IP57, there wae no one validly holding the office of i\fombr,r the Industrial Tribnnal.

pp. 93–94

The second statute t>nacted by the Punjab Governmf'nt is the Industrial Disputes (Amendment an<l :IIiscc!lancous Provisions) (Punjab Amendment.) Act 9 of 1957. It introduced in s. 30 of the Amendment Act, 1956, a new subs. (2) conferring on State Government 1iuthority to re.const.it.ute Tribunal established under the Industrial Disputes Act, 1947, where those TriburnLls had come to an end anrl there were matters pending before thPm for adjudication. Going haek to the Tribunal which was constituted under tho r<'pealed s. 7 of the Act it will be r<'ml'mbcred t h:i.t a ~ ot ifir.atinn ha<l been i~sue.cl 0n April 19, 1957 un<ler of the Amendment Act, l 95fl, keeping it alivr until the pending matters were posed of or until Oct.nber !ll, 1957, whichevn was earlin. The expectation that the proeeedingR before that Tribunal would be complek<l hy that <late was however, not realised and therefore >ict.ing 1111drr 3:~B (I) oft.he Art, and :lO of th" Amendment 19:i6, ns further amended by Punjnh Art, 9of19fl7. thP Government. of P1injab issne<l ;m October !l l, l!l57 a N'ntificr.tion tr~nsferrin.g the matter" pcnrling hefuro the old Trihnn:d l'0nstit.i1kd nn<lcr "· 7 to thn new Tribunal cnnstitnto<l on April Hl, 1!157, unclPr In accnnlancc with thiR '.'<ot.ific:ttion. R"fcr<'11ce No. of l waR transferre<l t.o the new Tribunal and was renumbf•r<'<I n.s 30 of Hl57. The contentions urg<>d by t.he appellant against this or<ler of transfer arc, firstly, that the Tribunal to which the transfrr had been made was not, 'for tho rea..•ons already given, validly constituted :ind had no legal existence, and, secondly, that the new provision introduced by the Punjab Act 9 of 1957 has no retrospective operation and that, in consequence, the proceedings which had been pending before the old Tribunal on March 10, 1957, could not be transferred to the new Tribunal under this section.

pp. 94–95

T_he present reference 30 of 1957 was pending till June 3, 1959, when Shri A.N. Gujral retired. The Punjab ·Government then issued a Notification appointing Sri Kesho Ram Passey. retired Judge of the Punjab High Court the Presiding; Officer of the Industrial Tribunal, Jullundur. Before him, the present appellant filed an application on September 4, 1959, raising a number of preliminary objections to the hearing of the reference. By its Order dated September 11, 1959, the Tribunal overruled these objeotions and posted the matter for hearing on the merits. It is the correctnesR of this Order that is now challenged before us in this Appeal.

p. 95

Though a number of objections were raised to the hearing of the reference before the Tribunal, the contentions advanced before us for the appellant are the following :-

p. 95

( 1) Shri A. N. Gujral was not qualified to be appointed to the Tribun~l under s. 7(3)(c) ofthi> Act that, in consequence, the reference to him dated Febr.uary 14, 1965, was incompetent;

p. 95

(2) that the Notification of the Punjab Government d1tted April. Hl, 19ii7, appointing Shri A. N. Gujral as a Member of the Industri1tl Tribunal, Jullundur, and the sub~equent Notifications extendin~ his tenure of office are unauthorised and inoperative;

p. 95

(3) that the Notification of the Punj1tb Government dated October 3 /, 1957, tmnsf,,rring the proceedings pending before the old Tribunal to the new Tribunal was inoperative, because (i) the Punjab Act 8 of I 967 ·is void being repugnant to Art. 14 of the Constitution and the appointment of Shri A. N. Gujral as Member under that Act is also void;

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and (ii) s. 30[2) enitcted by Punjab Act 9 of 1957 under whieh the transfer was made, did not authoriso transfer of proceedings, .which had Loen pending on or before :lfarch 10, I !J57.

p. 96

(I) Taking up fil'llt the cont-0ntion that Shri. A. N. Gujral was not <]nalified to he appoinU,d to th~ Trihunal on August 29, l!J53, by reason of the fact that he was over sixty years of age, the question is one of interpretation of the language of s. i ( 3)( c) of the Act. Section 7, in so far as it is material for the present purpose, is as folloirn:-

p. 96

"7. lnd1utrial Trilrunals.-(I) The appropriate Go-vPrnment m"v con~titute one or more Tn1!ustrial Tribunals for thA adju<lirMion of indtmtrial disputes in accordance with tho provisions of this Act..

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(2) A Trihunal shall consist of such number of independent mcmhers tho appropriato Government may think fit to appoint, and where the Tribunal consists of two or more men: hers, one of them shall be appointed as the Chairman thereof.

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(3) Where Trihunal consists of one member onlv, that memh..r, and where it con· Rists of two ·or more mcmbern, the Chairman of the 'rrihunal, shall be a person who- ·

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(a) is or has.hccn a Judgo of a High Court; or (bl is or haA been a Di3trict .Judge: or

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(cl is qualified for appointment as a Judgo of a High Court;

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Provided that no appointment under this sub·•ection to a Tribunal Ahall he made of any person not qualified undrr clause(~) or (bl cx- ~opt with the itpproval of the High Court of the State in which the Tribunal has, or is

pp. 96–97

intended to have its usual ~mt." Shri A. N. Gujral was appointed under s. 7(3)( c) being an Advocate. The question is, whether he was then qualified for appointment as a Judge of a High Court under that clause. The Constitutional provi· sion hearing on this point is Art. 217, which in so far as it is material is as follows :-

p. 97

''217. (1) Every Judge· of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governer of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office in the case of an additional or acting Judge, as. provided in article 224, and in any other case until he attains the age of sixty years;

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Provided that .............. .

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(2) A person shall not be qualified for appointment as a Judge of a High Court unless he is citizen d India and-

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( a) · has foi: at'least ten years held an Judicial office in the territory of India, or

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(b) has for at least ten years been a l}dvocate of a High Court or of two or more such Courts in succession.

p. 97

Explanation ...... " While Art. 217 ( 2) prescribes the qualifications for appointment as a Judge, Art. 217(1) lays down that the Judge shall hold office until he attains the age of sixty years. The whole of the controversy before us is as to the inter-relation between these two clauses. The contention of Mr. Pathak, learned counsel for the appellant, is that though Art. 217 ( 1) refers, in terms, to the termination of the office of Judge, in substance, it lays down a qualification for appointment,' because the appointment of a person over sixty as a.Judge would clearly be repugnant to Art. 21 i(I) even though he might satisfy all the requirements of Art. 21 i(2). It 'is accordingly argued that it is r.n implied qualification for appointment as a ,Judge under Art. 217 that the pernon should not have attained thP age of sixty at tlw time of the appointment.

pp. 97–98

We agree that there is implicit in Art. 217(1) a prohibition against. appointment as a Judge of a person who has attained the age of sixty years. But in our view, that is in tho nature of a condition governing the a ppointm!'nt to the office-not a qualification with reference to a person who is to be appointed th!•rcto. There is manifost on tlw terms and on the scheme of the "rticle a clear distinction between requirements a8 to the age of a person who could he appointed as a Judge and hiH fitn .. ~s based on experience and ability to fill the office. Art. 217(1) deals with the former, and, in form, it has reference to the termination of the office and can tb<?rcfore be properly read only as imposing, by implication a restriction on making the appointment, In strong contrast to thi~ is Art. 217(2} which expressly refers to thn qualifications of the person to be appointed such as his having held a judicial post or having been an Advocate for a period of not less than ten years. Wt• think that on a true construction oftbe article the prescription as to age is a concli. , tion attached to the duration of the offic., and not a qualification for appointment to it.

p. 98

_\fr. Pathak also relied on Arts. '224 and 316 as lending support to his cont•mtion that age is to he regarded as an impliecl qualification under Art. 21 i, Art, 22·1 rclates tot.he appointment of additional and !~cting Judges and it is provided in ck ( !) :md (2) that th~ pt>rson to bo appointed as additional or ading ,Judge by the Pr~si<lent ~hould be a duly qualified person. There is nothing about the age of the perwn to be appointe<I in these~ clauses. That is provided in Art. 224(3) when enacts that "no person appointed as an additional or acting Jndge of a High Court shall hold office after attaining the age of sixty years." This article is also framed on the same lines as Art. 217 and does not crtrry the matter further. Nor is there anything in Art. 376 which throws any further light on this point. It has reference to persons who were Judges in the High Courts of the States specified in part B of the First Schedule at the time when the Constitution came into force, and provides that they shall become Judges of the High Courts in those States under the Constitution, an.d then enacts a special provision that they "shall notwithstanding anything in clauses (ll and (2) of article 217 but subject to the proviso to clause (1) of that article, continue to hold office until the expiration of such period as the President may by order determine." We see nothing in the terms of this article which lends any support to the contention that age is to be regarded as a qualification.

pp. 98–99

More to the point under consideration iR Art. 165 ( 1) that the "Governor of each State shall appoint a person who is qualified to be appointed as a Judge of a High Court to be Advocate-General for the State." The question has been discussed whether on the terms of this article, a person who has attained the age of sixty could be appointed as an Advocate-General. If the age of a person is to be regarded as one of his qualifirations, then he could not be. The point arose for decisi6n in G. D. Karkare v. T. L. Shevde (1), where a Judge who had retired at the age of sixty had been appointed as Advocate-General. The validity of the appointment was challenged on the ground that he was disqualified by reason of his age. The learned Judges of the Nagpur High Court held that cl. (1) of Art. 217 of the Constitution prescribed only the duration of the appointment of a Judge of the High Court and could not be construed ioo SUPRE~IE COUltT REPORT.:; [1962) stJpi>. as prescribing a qualification for his appointment. It is argued for tho :tppcllant that the appointment of an AdvoC<tk-General under Art. W5 might stand on a different footing from that of a Judge under Art. 217. because of the special provision in Art. 165(3) that the Ach·ocatc-Gcneral is to hold office. at pleasure, whereas a ,Judge holds office during good bohaviour. But this difference bears only on the power of the appropriate authority to terminate the appointment and not on the qualifieation of the person to be appointed to the office. In our view, the interpretation put upon Art. 21 i in G.D. Karkare's caoe (1) correct.

pp. 99–100

Though the true meaning of Art. 217 has figured largely in the argument before us, it is to be noted that we ar~ primarily concerned in this appeal with the interpretation of s. 7(31( e) of the Act, and that must ultimately tum on its own context. Section i(3)(a} provides for the appointment of a High Court Judge, sitting or retired, as a Member of the Tribunal. Age is clearly not a qualification under thiH sub-clause, as tho age for retirement for a .Ju<liie of the High Court is sixty. Likewise, cl. (b) providt'S for the appointment of a District ,Judgo, setting or retired, as a Member. A retired District .T udge who is aged over sixty will be eligible for appointment under this subelause. Thus the age of a person does not eute·r into his qualific>Ltions under sub-els. (a) and (b). It would therefore be legitimate to constme sub-el. (c} as not. importing any qualification on the ground of age. But it said t.hat sub-els. (a) and {h) form a distinct group having reference to judicial officers, whereas, cl. (c) is confined to Advocates, who form a distinct category by themselves, and that in view of this difference, considerations as to age applicable to cl. (a) and (b) need not be applicable t<J cl. ( e). There is undoubtedly a distinction between els. (a) and (b) on the one hand and cl. (c) on the other. But the question is whether this has any reasonable relation to the difference whiuh is sou~ht to be made between the two classes with reference to the age of appointment. If a retired Judge of the age of sixty can fittingly fill the office of a Member of· the Tribunal under s. 7, an Advocate of that age can likewise do so. In our view, there is no ground for importing in,s. 7(3)(c) an implied qualification as to age, which is not applicable to cl. 7(3)(a! and (b).

pp. 100–101

This question was considered by a Bench of the Punjab High Court in Prabhudayal v. State of Punjab (I). There the validity of the appointment of Shri A. N. Gujral under the notification dated August 29, 1953, which is the very point now under debate, was challenged on the ground that as he was over sixty on that date, he was not qualified to be appointed under s. 7(3)(c). The Court held approving of the decision in G. D. Karkare's case('), that the prescription as to age in Art. 217 (l) was not a qualification to the office of a Judge under Art. 217(2), and that a person who was more than sixty was qualified for appointment under s. 7(3)( c).

p. 101

Reliance is placed for the appellant on the terms of s. 70 which was substituted by the Amendment Act 36 of 1956 in the place of s. 7 as supporting the contention that age ie a qualifiration for appointment under s. 7(3) (c).

p. 101

Section 7C is as follows :-

p. 101

"No person shall be appointed to, c r continue in, the office of the presiding offic< r of a Labour CJurt, 'l'ribunal or National Tribunal, if- ( a) he is not an independent person ;

p. 101

or Na~. (b) he has attained the age of sixty-fivo

pp. 101–102

years." The marginal note t(> that section which was also relied on is as follows :-

p. 102

"Disqualifications for the presiding officers of Labour Courts, Trilmnals and National

p. 102

Tribunals." The argument of the appellant is that, in prescribing the age as a qualification under s. 7C, the Legislature only made cxplioit what was implicit in

p. 102

i(3)(e), and that therefore the qualification on the basis of age should also be imported in s. 7(3)(c). This inforenco does not, in our opinion, follow. The insertion of age qualification in s. iC is more consistent with an intention on the part of the Legislature tu add, in the light of the working of the repealed s. i, a new provision prescribing the age of retirement for i\lcmbers. We ;~greo with the decision of the Punjab High Court in Prabhu- <.Wyals case(I) and hold that s.i(3)lc) docs not import any qualification based on the age of the person to be appointed, am! that the appointment. of Shri A. N. Gujral on Augui;t 29, 1953, wao valid under s. 7(3)(c).

p. 102

(2) The next contention advanced for the appellant is that tho Notification dated April 19, 11157, appointing Shri A. N. Gujral as a llfembcr of the Tribunal issued under s. 30 of the Amendment Act 36 of 1956 was not authorised by thu terms of that section and that therefore there was no validly constituted Tribunal from that date. Section 3U is as follows :-

p. 102

"Savings as to proceedings pending before Tribunals : If immediately before the commencement of thi~ Act there is pending any proceeding in relation to an Industrial dispute before a Tribunal oonstituted under the Industrial Disputes Act, 1947 (14 of 1947), as in force before such commencement, the dispute may be adjudicated and the proceeding disposed of by that Tribun'11 after such commencement, as if this Act had

pp. 102–103

not been passed." The contention urged before us is that s. 7 under which Shri · A. N. Gujral had been constituted Tribunal was repealed on March 10, 1957, the notification dated April 19, 1957, appointing him as a Member of the Tribunal is void. There is no substance in this contention. Section 30 expressly provides for the life of the Tribunal being extended for the period specified therein, and that necessarily implies a power to continue Shri A. N. Gujral as the Tribunal, and we should add that in view of our decision on point No. 3 this objection is practically of no importance.

p. 103

(3) Lastly, it is contended that the transfer of the proceedings pending before the old Tribunal to the new Tribunal under the Notification dated October :n, 1957, was invalid and inoperative. Two grounds were urged in support of this contention. One is that Shri A.N. Gujral attained the age of sixty-five on June 4, 1957, and his term of office would have then expired under s. 7C. Then the Punjab Legislature enacted Act 8 of 1957 raising the age of retirement under s. 7C(b) from sixtyfive to sixty-seven. That was with view to continue Shri A.N. Gujral in office. And this legislation came into force only on June 3, 1957. This Act,' it is said offends Art. 14 as its object was to benefit a particular individual, Shri A.N. Gujral, and reference was made to a decision of this Court in Ameeroonissa v. Mehboob (1) as supporting this contention. There is no foree in this contention. There the legislation related to the estate of one Nawab 'Waliu<ldoula, and it provided th,it the claims of llfahLoob Begum and Kadiran Begum, who claimed as ht:i1 s stood dismissed thereby and

pp. 103–104

could not b1' called in question in any court of law. ...

p. 104

And this Court held th:1t it wa-; repugnant to Art. 14, as it singled out individuals and denied them the right which other citizens have of resort to a court of law. But the impugned Act, 8 of l 9i>7 is of gem ral application, the age being raiRcd to sixty· seven with refer<'nce to all per8ons holding tho ofiice under that oection. The occasion which inspired the enactment of the statute might he t.bc impen· ding retirem1·nt of Siu i A. !\. Gujral. But that is not a ground for holding tltat it is discrimim1tory and contravenes .l\rt. I~, when it is, on its terms, of general application.

p. 104

The second ground of attack against. the order of transfer i' that it is not competP11t under s.:l0(2) of the Ami n<lment Act :{fl of l 9ii6 as furthor amended by the Punjab Act 9 of l!l5i. Section :J0(2) is a~ follows : -

p. 104

"'[f .immediately before the rommencc·m!•nt of thiR Act. there was pPnding any pro- CPcdin!! in relation to an indm1fl'ial dispute brfcH n Tribunal const itut.!'d under the Indus. trial Disput~s Act, 1947, as in force hefore such commencement and such prnrPcding could not he disposed of by that Tribunal due to the Tribunal ha\·;ng come to an cnrl on the expiry of th" prriorl for which it wa" constituted, the State Government mav r<>·conRti· t.utn that Tribunal for adjudieatin°q that dispute and dispo;ing of that proci>edin6 after Hn<'h commence nwnt as if this Act. bad not b1,..·n pa;sed, and the proceeding may be eontinunl by that Tribunal from tlw stage at wjiieh it left," The contention urged before us is that this provision has no retrospective operation· and that in consequence t.he proceedings which had been pending before the old Tribunal on March 10, 1957, could not be transferred to the new Tribunal under thi" section. This content.ion is clearly untenable, because the whole object of s.30(2) is to provide for the hearing of disputes which were pending before the old Tribunal, and its operation is entirely retrospective. This contention must therefore be rejected.

pp. 104–105

In the result, the repeal fails and is dismissed with costs. "

p. 105

A ppe,al dismissed. SRI SATYA NARAIN SINGH

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v. DISTRICT ENGINEER, P.W.D. AND ANOTHEli (B. P. J. L. M.

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J. C. and J, R. JJ.)

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ferry--Toll-Right

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if

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(XVII The at of

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The of

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of The tii~

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