Appeal No 188 of 1961
Appeal by special leave from the judgment and order dated September 111959 of the Industrial Tribunal Punjab Patiala in Reference No 30 of 1957
GS Pathak J B Dadachanji O C Mathur and Ravinder Narain for the appellants
Bawa Shivcharan Singh and Janardan Slwrma for the respondents
February 8
The Judgment of the Court was delivered by VENKITARAMA AIYAR J
This is an appeal by special leave against the Order of the Industrial Tribunal Punjab dated September 11 1959 in Reference No 30 of 1957 overruling certain preliminary objections raised by the appellant to the 91 jurisdiction of the Tribunal to hear the reference
The facts are that on February 141955 the Government of Punjab referred under section 101c of the  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 Reference 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 In exercise of the powers conferred under section 7 of the Act XIV of 1947 the Governor of Punjab in consultation with the Punjab High Court is pleased to appoint Shri Avtar Narain Gujral Advocate as Industrial Tribunal for Punjab
 The main contention pressed before us on behalf of the appellant is that Shri AN Gujral was not qualified under section 73c of the Act under which the Notification was issued to be appointed as Tribunal on August 29 1953 as he was very sixty years of age on that date having been born on June 4 1 892 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 55 was wholly inoperative
While Reference No 3 of 1955 was pending before the Tribunal the provisions of the  were amended by the Industrial Dispute Amendment and Miscellaneous Provisions Act 1956 Act No 36 of 1956 which came into force on March 10 1957
This Amendment Act repealed section 7 of the principal Act and replace it by sections 7A 7B and 7C Section 30 of the Amendment Act contains a saving as regards proceedings in relation to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 Act
Acting under this section the 92 Punjab Government issued on April 19 1957 the following Notification  No 4194 0
Lab 57652 RA In continuation of Punjab Government Memorandum No 3078 C Lab 574224 dated the 1stllth March 1957 and in exercise of the powers conferred by section 7 of the  as in force before the commencement of the Industrial Disputes Amendment and Miscellaneous Provisions Act 1956 read with Section 30 of the latter Act and all other powers enabling him in this behalf the Governor of Punjab is pleased to extend athe period for which the Industrial Tribunal Punjab Jullundur is constituted and bthe term of appointment of the Role Member thereof
up to the last day of October 1957 or such date as the proceedings in relation to industrial disputes pending in the said Tribunal immediately before the 10th March 1957 are disposed of whichever is earlier To put it briefly this Notification extended the life of the Tribunal constituted under the repealed section 7 for the period specified therein and it also continued the term of Shri AN Gujral as a Member thereof for the said period
The contention of the appellant with reference to this Notification is that section 30 of Act 36 of 1956 does not authorise the appointment of a Member to the Tribunal constituted under section 7 and that the Notification in so far as it continued Sbri AN Gujral
as a Member of the Tribunal after his term of office had expired on Mach 10 1957 was unauthorised and void
93 On the same date on which the above Notification was issued that is on April 19 1957 the Government of Punjab issued a Notification under section 7A of the Act of which the relevant portion is as follows  No 4194 C Lab 5766t RA In exercise of the powers conferred by Section 7A of the Industrial Disputes Act 1917 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 BA LLB as its Presiding Officer with effect from the date of the publication of this notification in the Official Gazette up to 3rd June 1957
 It will be noticed that this Notification firstly constituted a now Tribunal being the Industrial Tribunal Jullundur and secondly it appointed Shri A N Gujral as its Presiding Officer up to June 3 1957
The significance of that date is that under section 7C b enacted by the Amendment Act 1956 the age of retirement for members was fixed at sixty five and under that provision Shri AN Gujral would have to retire on June 3 1957
The Punjab 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
Section 3 of this Act amended section 7C b of the principal Act by substituting for the words he has attained the age of sixty five years the words he has attained the the age of sixty seven years
Thus the age of retirement was raised to sixty seven years
By the operation of this Act the tenure of Shri A N Gujral could be extended from 94 June 3 1957 to June 3 1959 and that in fact was done by a number of Notifications issued from time to time
The appellant contends that this legislation was intended to benefit a single individual Shri AN Gujral and is therefore void as offending article 14 of the Constitution
The result according to the appellant is that after June 3 1957 there was no one validly holding the office of Member of the Industrial Tribunal
The second statute enacted by the Punjab Government is the Industrial Disputes Amendment and Miscellaneous Provisions Punjab Amendment Act 9 of 1957
It introduced in section 30 of the Amendment Act 1956 a new sub section 2 conferring on the State Government authority to re constitute Tribunal established under the  where those Tribunals had come to an end and there were matters pending before them for adjudication
Going back to the Tribunal which was constituted under the repealed section 7 of the Act it will be remembered that a Notification had been issued on April 19 1957 under section 30 of the Amendment Act 1956 keeping it alive until the pending matters were dis posed of or until October 31 1957 whichever was earlier
The expectation that the proceedings before that Tribunal would be completed by that date was however not realised and therefore acting under section 33B 1 of the Act and section 30 of the Amendment Act 1956 as further amended by Punjab Act 9 of 1957
the Government of Punjab issued on October 31 1957 a Notification transferring the matters pending before the old Tribunal constituted under section 7 to the new Tribunal constituted on April 19 1957 under section 7A
In accordance with this Notification Reference No 3 of 1955 was transferred to the new Tribunal and was renumbered as 30 of 1957
The contentions urged by the appellant against this order of transfer are firstly that the Tribunal to which the transfer had been made was not for the reasons already given validly constituted and had no legal existence and 95 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
The present reference 30 of 1957 was pending till June 3 1959 when Sbri AN Gujral retired
The Punjab Government then issued a Notification appointing Sri Kesho Ram Passey retired Judge of the Punjab High Court as 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 objections and posted the matter for hearing on the merits
It is the correctness of this Order that is DOW challenged before us in this Appeal
Though a number of objections were raised to the bearing of the rieference before the Tribunal the contentions advanced before us for the appellant are the following  1 Shri A N Gujral was riot qualified to be appointedto the Tribunal under section 73c of the Act that in consequence the reference to him dated February 14 1955 was incompetent 2that the Notification
of the Punjab Government dated April 19 1957 appointing Shri A N Gujral as a Member of the Industrial Tribunal Juilundur and the subsequent Notifications extending bis tenures of office are unauthorised and inoperative 3that the Notification of the Punjab Government dated Ootober 31 1957 transferring the proccedings
pending before the old Tribunal to the new Tribunal was inoperative because i the Punjab Act 8 of 1957 is void being repugnant to article 14 of the Constitution and the appointment of Shri A N Gujral as Member under that Act is also void 96 and ii section 302 enacted by Punjab Act 9 of 1957 under which the transfer was made did not authorise transfer of proceedings which had been pending on or before March 10 1957
1 Taking up first the contention that Shri A N Gujral was not qualified to be appointed to the Tribunal on August 29 1953 by reason of the fact that he was over sixty years of age the question is one of interpretation of the language of section 73c of the Act
Section 7 in so far As it is material for the present purpose is as follows 7
Industrial Tribunals 1 The appropriate Government may constitute one or more Industrial Tribunals for the adjudication o f industrial disputes in accordance with the provisions of this Act
2A Tribunal shall consist of such number of independent members as the appropriate Government may think fit to appoint and where the Tribunal consists of two or more members one of them shall be appointed as the Chairman thereof
3Where a Tribunal consists of one member only that member and where it consists of two or more members the Chairman of the Tribunal shall be a person who ais or has been a Judge of a High Court or b is or has been a District Judge or c is qualified for appointment as a Judge of a High Court Provided that no appointment under this subsection to a Tribunal shall be made of any person Dot qualified under clause a or b except with the approval of the High Court of 97 the State in which the Tribunal has or is intended to have its usual seat Shri A N Gujral was appointed under section 73c 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 provision hearing on this point is article 217 which in so far as it is material is as follows  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 Governor 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 Provided that   2A person shall not be qualified for appointment as a Judge of a High Court unless he is citizen of India and a has for at least ten years held an Judicialoffice in the territory of India or b has for at least ten years been a advocate of a High Court or of two or more such Courts in succession
Explanation 
While article 217 2 prescribes the qualifications for appointment as a Judge article 2171 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 article 217 1 refers in terms to the termination of the office of Judge in substance it lays down a 98 qualification for appointment because the appointment of a person over sixty as a Judge would clearly be repugnant to article 2171 even though he might satisfy all the requirements of article 2172
It is accordingly argued that it is an implied qualification for appointment as a Judge under article 217 that the person should not have attained the age of sixty at the time of the appointment
We agree that there is implicit in article 2171 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 the nature of a condition governing the appointment to the office not a qualification with reference to a person who is to be appointed thereto
There is manifest on the terms and on the scheme of the article a clear distinction between requirements as to the age of a person who could be appointed as a Judge and his fitness based on experience and ability to fill the office
article 2171 deals with the former and in form it has reference to the termination of the office and can therefore be properly read only as imposing by implication a restriction on making the appointment
In strong contrast to this is article 2172 which expressly refers to the 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
We think that on a true construction of the article the prescription as to age is a condition attached to the duration of the office and not a qualification for appointment to it
Mr Pathak also relied on articles 224 and 376 as lending support to his contention that age is to be regarded as an implied qualification under article 217
article 224 relates to the appointment of additional and acting Judges and it is provided in els
1 and 2 that the person to be appointed as additional or acting Judge by the President should be a duly qualified person
There is nothing about the age of the person to be appointed in these clauses
99 That is provided in article 2243 when enacts that no person appointed as an additional or acting Judge of a High Court shall hold office after attaining the age of sixty years
 This article is also framed on the same lines as article 217 and does not carry the matter further
Nor is there anything in article 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 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 and then enacts a special provision that they shall notwithstanding anything in clauses 1 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
More to the point under consideration is article 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 qualifications then he could not be
The point arose for decision in G D Karkare vs 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 article 217 of the Constitution prescribed only the duration of the appointment of a Judge of the High Court and could not be construed 1 I LR 1952 Nas
409 100 as prescribing a qualification for his appointment
It is argued for the appellant that the appointment of an Advocate General under article 165 might stand on a different footing from that of a Judge under article 217
because of the special provision in article 1653 that the Advocate General is to hold office at pleasure whereas a Judge holds office during good behavior
But this difference bears only on the power of the appropriate authority to terminate the appointment and not on the qualification of the person to be appointed to the office
In our view the interpretation put upon article 217 in G D Karkare s case 1 is correct
Though the true meaning of article 217 has figured largely in the argument before us it is to be noted that we are primarily concerned in this appeal with the interpretation of section 73c of the Act and that must ultimately turn on its own context
Section 73a provides for the appoint ment of a High Court Judge sitting or retired as a Member of the Tribunal
Age is clearly not a qualification under this sub clause as the age for retirement for a Judge of the High Court is sixty
Likewise el
b provides for the appointment of a District Judge setting or retired as a Member
A retired District Judge who is aged over sixty will be eligible for appointment under this subclause
Thus the age of a person does not enter into his qualifications under sub cls
a and b
It would therefore be legitimate to construe sub el
c as not importing any qualification on the ground of age
But it is said that sub cls
a and b 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 to el
There is undoubtedly a distinction 1 I L R1952 Nag 409 101 between cls
a and b on the one hand and c1
c on the other
But the question is whether this has any reasonable relation to the difference which is sought 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 section 7 an Advocate of that age can likewise do so
In our view there is no ground for importing in section 73c an implied qualification as to age which is not applicable to el
73a and b
This question was considered by a Bench of the Punjab High Court in Prabhudayal vs State of Punjab 1
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 section 1 3c
The Court held approving of the decision in G D Karkare s case 2 that the prescription as to age in article 217 1 was not a qualification to the office of a Judge under article 2172 and that a person who was more than sixty was qualified for appointment under section 73c
Reliance is placed for the appellant on the terms of section 7C which was substituted by the Amendment Act 36 of 1956 in the place of section 7 as supporting the contention that age is a qualification for appointment under section 73 c
Section 7C is as follows  No person shall be appointed to or continue in the office of the presiding officer of a Labour Court Tribunal or National Tribunal if a he is not an independent pet son or 1 A 1
R 2 11 R1952 Nag
409 102 b he has attained the age of sixty five years   The marginal note to that section which was also relied on is as follows   Disqualifications for the presiding officers of Labour Courts Tribunals and National Tribunals
 The argument of the appellant is that in prescribing the age as a qualification under section 7C the Legislature only made explicit what was implicit in a 73c and that therefore the qualification on the basis of age should also be imported in section 73c
This inference does not in our opinion follow
The insertion of age qualification in section 7C is more consistent with an intention on the part of the Legislature to add in the light of the working of the repealed section 7 a new provision prescribing the age of retirement for Members
We agree with the decision of the Punjab High Court in Prabhudayals case 1 and hold that section 7 3 c does not import any qualification based on the age of the person to be appointed and that the appointment of Shri A N Gujral on August 29 1953 was valid under a 73c
2The next contention advanced for the appellant is that the Notification dated April 19 1957 appointing Shri A N Gujral as a Member of the Tribunal issued under section 30 of the Amendment Act 36 of 1956 was not authorised by the terms of that section and that therefore there was no validly constituted Tribunal from that date
Section 30 is as follows  Savings as to proceedings pending before Tribunals  If immediately before the commencement of this Act there is pending any proceeding in relation to an Industrial dispute before a Tribunal constituted 1 A I R 1959 Punj 460
103 under the 14 of 1947 as in force before such commencement the dispute may be adjudicated and the proceeding disposed of by that Tribunal after such commencement as if this Act had not been passed
 The contention urged before us is that section 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
3Lastly it is contended that the transfer of the proceedings pending before the old Tribunal to the new Tribunal under the Notification dated October 31 1957 was invalid and inoperative
Two grounds were urged in support of this contention
One is that Shri AN Gujral attained the age of sixty five on June 4 1957 and his term of office would have then expired under s7C
Then the Punjab Legislature enacted Act 8 of 1957 raising the age of retirement under s70b from sixty five to sixty seven
That was with a view to continue Shri AN Gujral in office
And this legislation came into force only on June 3 1957
This Act it is said offends article 14 as its object was to benefit a particular individual Shri AN Gujral and reference was made to a decision of this Court in Ameeroonissa vs Mehboob 1 as supporting this contention
There is no force in this contention
There the legislation related to the estate of one 1  104 Nawab Waliuddoula and it provided that the claims of Mahboob Begum and Kadiran Begum who claimed as heirs stood dismissed thereby and could not be called in question in any court of law
And this Court held that it was repugnant to article 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 1957 is of general application the age being raised to sixty seven with reference to all persons holding the office under that section
The occasion which inspired the enactment of the statute might be the impending retirement of Shri A N Gujral
But that is not a ground for holding that it is discriminatory and contravenes article 14 when it is on its terms of general application
The second ground of attack against the order of transfer is that it is not competent under s302 of the Amendment Act 36 of 1956 as further amended by the Punjab Act 9 of 1957
Section 302 is as follows  If immediately before the commencement of this Act there was pending any proceeding in relation to an industrial dispute before a Tribunal constituted under the  as in force before such commencement and such proceeding could riot be disposed of by that Tribunal due to the Tribunal having come to an end on the expiry of the period for which it was constituted the State Government may reconstitute that Tribunal for adjudicating that dispute and disposing of that proceeding after such commencement as if this Act had not bee n passed and the proceeding may be continued by that Tribunal from the stage at which it was left
 105 The contention urged before us is that this provision 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
This contention is clearly untenable because the whole object of s302 is to provide for the hearing of disputes which were pending before the old Tribunal and its operation is entirely retrospective
This contention must there
fore be rejected
In the result the repeal fails and is dismissed with costs
Appeal dismissed


Summary:
On February 14 1953 the Government of Punjab referred certain disputes between the appellant company and its workmen to the Industrial Tribunal which had been consti tuted on August 29 1953 by a notification issued under section 7 of the industrial Disputes Act 1947 by which G an Advo cate was appointed as the Industrial Tribunal for Punjab
When the reference was pending the Act was amended
The Amendment Act inter alia repealed section 7 of the principal Act and replaced it by sections 7A 7B and 7C and by section 30 provided for a saving clause in respect of the proceedings pending before the Tribunal constituted under the principal Act
On April 19 1957 the Punjab Government issued a notification under section 7 of the Act and section 30 of the Amendment Act extending the life of the Tribunal constituted under the repealed section 7 and also extending the term of G as the member
On the same date another Notification was issued under section 7A of the Act constituting a new Tribunal and appointing G as the Presiding Officer up to June 3 1957
Under section 70 b the age of retirement for members was fixed at sixty five and under that provision G would have to retire by June 3 1957
The Punjab Government intervened and passed the Industrial Disputes Punjab Amendment Act 1957 raising the age of retirement of members to sixty seven years
After G had retired on June 3 1959 the Punjab Government issued a notification appointing another person as the Presiding Officer of the Industrial Tribunal
The appellant challenged the legality of the reference on the grounds inter alia 1 that G was not qualified to be appointed to the Tribunal under section 7 3 c of the Act as he was over sixty years and therefore the reference to him dated 90 February 14 1955 was incompetent and 2 that the Indus trial Disputes Punjab Amendment Act 1937 was passed with a view to benefit a single individual G and therefore was void as offending article 14 of the Constitution of India
Held 1 section 73c of the  did not import any qualification based on the age of the person to be appointed and that the appointment of G on August 29 1953 was valid under that section
On the true Construction of article 217 of the Constitution of India the prescription of age therein is a condition attached to the duration of the office and not a qualifica tion for appointment to it
GD Karkare vs TL Shevde ILR and Prabhudayal vs State of Punjab A I R 1959 Punj
460 approved
2 the Industrial Disputes Punjab Amendment Act1957not contravene article 14 of the Constitution because thoughthe occasion which inspired the enactment of the statutemight be to benefit an individual it was of general application and could not therefore be held to be discriminatory
Ameerunissa vs Mehboob   distinguished