Case: Atlas Cycle Industries, Ltd Vs. Their Workmen

The facts are that on February 14, 1955, the Government of Punjab referred under S. 10 (1) (c) of the Industrial Disputes Act,1947 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 S. 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 Shri Avtar Narain Gujral, Advocate, as Industrial Tribunal for Punjab."2. While Reference No. 3 of 1955 was pending before the Tribunal, the provisions of the Industrial Disputes Act, 1947, were amended by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956 (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 This Amendment Act repealed S. 7 of the principal Act, and replaced it by Ss. 7A, 7B and 7C.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 Punjab Government issued on April 19,1957, the following Notification :"No. 4194-C Lab 57/652.-RA-In continuation of Punjab Government Memorandum No. 3078-C-Lab-57/4224, dated the 1st/11th March, 1957, and in exercise of the powers conferred by S.7 of the Industrial Disputes Act,1947, as in force before the commencement of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, read with S. 30 of the latter Act and all other powers enabling him in this behalf the Governor of Punjab is pleased to extend(a) the period for which the Industrial Tribunal, Punjab, Jullundur, is constituted, and(b) the term of appointment of the Sole Member thereof,up to the last day of October,1957, or such date is 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of, whichever is earlier"To put it briefly, this Notification extended the life of the Tribunal constituted under the repealed S.7, for the period specified therein, and it also continued the term of Shri A. N. Gujral, as the Member thereof, for the said period4. 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 S. 7A of the Act of which the relevant portion is as follows :"No 4194-C-Lab-57/661-RA-In exercise of the powers conferred by S. 7A of the Industrial Disputes Act, 1947, as inserted by S. 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 3rd June, 1957."5. 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 S. 30 of the Amendment Act, 1956, a new sub-s. 2. conferring on the State Government authority to re-constitute Tribunals established under the Industrial Disputes Act, 1947, 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 S. 7 of the Act, it will be remembered that a Notification had been issued on April 19, 1957, under S. 30 of the Amendment Act, 1956, keeping it alive until the pending matters were disposed 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 S. 33B (1) of the Act, and S. 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 S. 7 to the new Tribunal constituted on April 19, 1957, under S. 7A. In accordance with this Notification, Reference No. 3 of 1955 was transferred to the new Tribunal and was renumbered as 30 of 19576. The 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 Shri 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 now challenged before us in this Appeal.

Court's reasoning:
It will be noticed that this notification firstly constituted a new 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 S. 7C (b) enacted by the Amendment Act, 1956, the age of retirement for members was fixed at sixty-five, and under that provision. Shri A. N. 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 1957. Section 3 of this Act amended S. 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 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 June 3, 1957, to June 3, 1959, and that in fact was done by a number of notifications issued from time to time9.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 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. Art. 217 (1) 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 Art. 217 (2) 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 itArticle 224 relates to the appointment of additional and acting Judges and it is provided in cls. (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. That is provided in Art. 224 (3) which 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 Art. 217 and does not carry 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, and then enacts a special provision that they"shall notwithstanding anything in cls. (1) and (2) of Art. 217 but subject to the proviso to cl. (1) of that article, continue to hold office until the expiration of such period as the president may be 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 qualification11. More to the point under consideration is 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 or 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 v. T. L. Shevde, I. L. R. (1952) Nag 409 : (AIR 1952 Nag. 330), 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. 117 of the Constitution prescribed only the duration of the appointment of a Judge of the High Court and could not be construed as prescribing a qualification for his appointmentBut 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 Art. 217 in G. D. Karkares case, I L R. (1952) Nag. 409 : (A. I. R 1952 Nag 330) is correctIf 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 cls. 7 (3) (a) and (b)The contention urged before us is that as S. 7 under which Shri A. N. Gujral had been constituted Tribunal was repealed on 10th March 1957, the notification dated 19th April 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 importanceThere is no force in this contention. There the legislation related to the estate of one 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 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 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 Art. 14, when it is, on its terms, of general applicationThe 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 10th March 1957, could not be transferred to the new Tribunal under this section. This contention 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.