PRABHUDAYAL HIMATSINGKA Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This judgment will dispose of Civil Writ No. 80 of 1958 and Civil Writ No. 1167 of 1958 in which common points of law are involved.

(2.) The facts in Civil Writ No 80 of 1958 may be stated : Shri Avtar Narain Gujral whose date of birth is stated to be 4-6-1892, was appointed an Industrial Tribunal by a notification dated 29-8-1953 under Section 7 of the Industrial Disputes Act, 1947 (to be referred to as the Act). By a notification dated 8-11-1956, made under Section 10(1) (c) of the Act, certain disputes existing between the petitioners, who are the trustees of Birla Education Trust under whose auspices the Technical Institute of Textiles is being run at Bhiwani, and the workers represented by the Union called the T. I. T. Staff Union, were referred for adjudication. The petitioners appeared before the Tribunal and claim to have raised the question of jurisdiction of the Tribunal and the legality of the reference principally on the ground that Shri Gujral could not have been appointed to the Industrial Tribunal having attained the age of 60 years on 4-6-1952. On 19-4-1957 two notifications were issued by the Punjab Government. One notification was made in exercise of the powers conferred by Section 7A of the Act as inserted by Section 4 of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, constituting an Industrial Tribunal with headquarters at Jullundur and appointing Shri Avtar Narain Gujral as its presiding Officer with effect from the date of the publication up to 3-6-1957. In addition to his duties as presiding officer of the newly constituted Tribunal, Shri Avtar Narain Gujral was to continue for the disposal of pending proceedings as member of the Second Industrial Tribunal, Amritsar, and as sole member of the Tribunal, Punjab, Jullundur, which had been constituted under the Act (vide Annexure 'T'). By means of the second notification, the term of appointment of the sole member of the Industrial Tribunal. Jullundur, was extended up to the last day of October 1957, or such date as the proceedings in relation to industrial disputes pending in the aforesaid Tribunal before 10-3-1957 were disposed of, whichever was earlier. It may be mentioned that according to Section 7C, which was inserted by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, the age up to which the presiding officer of the Tribunal was not to be disqualified was raised to 65 years. The Act was amended so far as the State of Punjab was concerned by a notification published in the Punjab Gazette Extraordinary dated 3-6-1957, by the Industrial Disputes (Punjab Amendment), Act, 1957. Section 7C of the Central Act was amended and the age of disqualification for appointment to the Tribunal was raised to 67 years. By means of another notification, dated 4-7-1957, the Punjab Government extended the term of appointment of Shri Gujral as presiding officer of the Industrial Tribunal, Jullundur, from 4-6-1957 to 28-2-1958 (Annexure 'J'). The present petition under Article 226 of the Constitution was filed on 30-1-J958. It may be stated that by an order, dated 31-10-1957, respondent No. 1, in exercise of powers under Section 33B of the Act, had transferred all pending cases from respondent No. 2, as previously constituted, to respondent No. 2, newly constituted under Section7A of the Act. As certain important questions of law were raised in the petition, it was considered desirable that they should be decided by a Division Bench and now the matter has been placed before us for deciding the points of law that have arisen for decision.

(3.) The preliminary objection that had been raised before, and which has been pressed again, on behalf of the State before us would be concluded by the view that has been expressed by us in Jagajit Cotton Textile Mills Ltd. v. Industrial Tribunal Patiala, Civil Misc. Appln. No. 143-P of 1956; (AIR 1959 Punj 389), which was heard along with these petitions. In the present case (Civil Writ No. 80 of 1958), a writ of prohibition is being sought on the ground that the Tribunal suffers from patent lack of jurisdiction. In the other case (Civil Misc. No. 143-P of 1956: (AIR 1959 Punj 389)) we have expressed concurrence with the view expressed by Desai J. in S. C. Prashar v. Vasantsen Dwarkadas, (1956) 29 ITR 857: ((S) AIR 1956 Bom 530), and Madhvalal Sindhoo v. V. R. Idurkar, (1956) 30 ITR 332 (Bom). According to that view although the issuance of prohibition is discretionary with this Court, but where there is patent lack of jurisdiction a writ will be granted "though not of right, nor of course, yet almost as a matter of course", unless an irresistible case for withholding the writ is made out.