Bal Raj Tuli, J.:— This judgment will dispose of Civil Writs No. 1129 and 1130 of 1969, Gedore Tools (I) Private Ltd., Faridabad v. The State of Haryana, and Civil Writ No. 1058 of 1969, Industrial Refrigeration Industries v. Sohan Singh, as common questions of law arise in all these three petitions.

2. The petitioner-company, in Civil Writ No. 1129 of 1969, dismissed respondent No. 3, Jai Singh, from service by order dated January 24, 1968. On January 31, 1968, respondent No. 3 gave a notice of demand asking for his reinstatement. Respondent No. 3 was not re-instated and he approached the Government of Haryana for reference of his dispute for adjudication. The Government of Haryana, respondent No. 1, referred the following dispute between the Management and the Workmen for adjudication to the Labour Court, Faridabad, on September 2, 1968:—

“Whether the termination of services of Shri Jai Singh was justified and in order? If not, to what relief is he entitled?”

3. The parties appeared before the Presiding Officer, Labour Court, Faridabad and the petitioner-company raised preliminary objections with regard to the establishment of the Labour Court, Faridabad, the appointment of Shri P.N Thukral as its Presiding Officer and the validity of the reference made to it by the State of Haryana. The Tribunal framed the following preliminary issues:—

“1. Whether the objection that Section 2-A of the Industrial Disputes Act is ultra vires can be raised in this Court?

2. Whether this Court has not been properly constituted and the appointment of the present Presiding Officer has not been properly notified.”

4. On issue No. 1, the decision was that a Court of special jurisdiction could not interpret the Constitution and decide about the vires of an Act of the Legislature. The petitioner company was left to pursue its remedy in the High Court. On issue No. 2 it was held that the Labour Court at Faridabad had been properly constituted and the appointment of its Presiding Officer was also in order. This order was passed on January 27, 1969, and the petitioner-company was burdened with Rs. 100.00 as costs for the adjournments. The case was fixed for further proceedings on February 13, 1969. Against the order imposing costs, the petitioner-company made an application on February 13, 1969, stating that the order was without jurisdiction as the petitioner-company had never sought any adjournment. This application was dismissed by the learned Tribunal by order dated April 17, 1969, awarding Rs. 50.00 as conditional costs and directing that the management would not be entitled to take part in further proceedings of the case till the costs were paid. The petitioner-company then filed the present writ petition in this Court on May 6, 1969. It was admitted on May 19, 1969, and was ordered to be heard with Civil Writ No. 1058 of 1969. The return to the writ petition has been filed by the State of Haryana only to which the petitioner-company filed a replication.

5. The petitioner-company, in Civil Writ No. 1130 of 1969, dismissed respondent No. 3 Balbhadar Singh by order dated July 5, 1968. Respondent No. 3 served the following demand notice on the Executive Officer of the petitioner-company on July 6, 1968:—

“That you have dismissed me illegally and unjustifiably vide your letter No. G-P/0116 dated July 5, 1968 Therefore, I demand to reinstate me with full back wages and continuity of service as dismissal is quite illegal and unjustified”

6. The petitioner-company did not reinstate him and the Governor of Haryana referred the following dispute to the Labour Court, Faridabad, for adjudication on September 2, 1968:—

“Whether the termination of services of Shri Balbhadar Singh was justified and in order? If not, to what relief is he entitled?”

7. The petitioner-Company raised the same preliminary objections as in the case of Shri Jai Singh and the same issues were framed which were decided against the petitioner-company by order dated January 30, 1969, imposing Rs. 100.00 as costs. The case was fixed for February 20, 1969, for further proceedings. On February 17, 1969, the petitioner-company filed an application for cancelling the order of costs on the ground that it was without jurisdiction and was not justified as the petitioner-company never asked for any adjournment. This application was dismissed by order dated April 17, 1969, and the learned Tribunal imposed Rs. 50/- as costs for the adjournment caused in the disposal of the application. It was further ordered that these costs would be conditional and the Management would not be entitled to take part in the further proceedings of the case till the costs were paid the petitioner-company filed the present writ petition in this Court on May 6, 1969, which was admitted on May 19, 1969 This petition was ordered to be heard with Civil Writ No. 1129 of 1969. The return to the writ petition has been filed by respondent No. 1 to which the petitioner-company filed a replication.

8. The petitioner in Civil Writ No. 1058 of 1969, is a firm carrying on business of manufacturing refrigeration and air-conditioning appliances the factory of the petitioner is situated at Bahadurgarh. The petitioner firm employed respondent No. 1, Sohan Singh, as a casual worker on Rs. 600 per day for a period of 15 days only on October 21, 1967, and his services were terminated on November 5, 1967, when he was offered Rs. 90.00 as the amount due to him but he refused to accept the same. The conciliation proceedings could not succeed between the petitioner and respondent No. 1, and the Governor of Haryana referred the following dispute for adjudication to the Labour Court. Rohtak, on March 16, 1968:—

“Whether the termination of the services of Shri Sohan Singh, Welder, is justified and in order? If not, to what relief is he entitled?

9. The parties appeared before the Presiding Officer, Labour Court, Rohtak, and after the trial an award was made by the Labour Court, Faridabad, presided over by Shri P.N Thukral, on December 30, 1961. Against the said award of Shri P.N Thukral, the present writ petition was filed in this Court on April 29, 1969, which was admitted on May 19, 1969.

10. The first point common to all the three petitions, which has been argued, is the validity of the appointment of Shri P.N Thukral as Presiding Officer of the Labour Court, Rohtak, and thereafter the shifting of the headquarters of the Labour Court from Rohtak to Faridabad and the appointment of P.N Thukral as the Presiding Officer thereof. The facts bearing on the point are that the Labour Court at Rohtak was constituted by the Governor of Punjab by notification No. 11495-C, Lab-57/11245 dated February 7, 1958, which read as under:—

“In exercise of the powers conferred by section 7 of the Industrial Disputes Act, 1947, the Governor of Punjab is pleased to constitute a Labour Court with headquarters at Rohtak, and to appoint Shri Sher Singh Bakshi, retired District and Sessions Judge, as its Presiding Officer, with effect from the date he actually takes over, on the following terms and conditions:

(1) He will draw the same pay which he was in receipt at the time of his retirement minus his gross pension subject to the maximum of Rs. 1,000 per mensum without dearness allowance;

(2) He will be entitled to all leave and medical benefits which are admissible to temporary Gazetted Government Servants in the State Service”

11. After Shri Sher Singh Bakhshi, some other Presiding Officers were appointed and the last incumbent of that office relinquished the charge on June 20, 1967. The Chief Minister of Haryana, selected Shri P.N Thukral, for the office of the Presiding Officer, Labour Court, Rohtak. Shri P.N Thukral, at that time, was functioning as District and Sessions Judge, Delhi, and a letter was written by the Secretary to Government, Haryana, Labour and Employment Department, to the Registrar, Delhi High Court, Delhi, on July 11, 1967, stating—

“that this State Government has decided to appoint Shri P.N Thukral, District and Sessions Judge, Delhi, as Presiding Officer, Labour Court, Rohtak. The previous incumbent of the post of Presiding Officer, Labour Court, Rohtak, relinquished the charge of this office on the 20th June, 1967. This office is lying vacant since then. I am, therefore, to request that Shri P.N Thukral may please be relieved of his present job at the earliest convenience of your High Court and directed to join his new assignment curtailing his joining time to the minimum.”

12. A copy of this letter was forwarded to Shri P.N Thukral for information and necessary action. It was further stated in the endorsement that:—

1. xxx

2. On his being relieved of his present office, he may please assume the charge of the office of the Presiding Officer, Labour Court, Rohtak, curtailing the joining time to the minimum.

3. The term of his appointment and re-employment with effect from the date of his retirement on superannauation pension will be determined on receipt of his service particulars from the Registrar, Delhi High Court, Delhi.”

13. Shri P.N Thukral, in pursuance of this letter of appointment, assumed charge as Presiding Officer, Labour Court, Rohtak on July 17, 1967. His appointment as such was not gazetted in the Haryana Government Gazette but a notification No. 7103-3 Lab-67/25650 dated 21/24 August, 1967, was published in the Haryana Government Gazette, Part I, which reads as under:—

“On appointment under section 8 of the Industrial Disputes Act, 1947, Shri P.N Thukral, District and Sessions Judge, Delhi, assumed the charge of the office of Presiding Officer, Labour Court, Rohtak, on the afternoon of 17th July, 1967.

P.N Bballa,

Secretary to Government, Haryana

Labour and Employment Departments.”

14. The next Notification No. 5414-3-Lab-68/15254 was issued by the Haryana Government on June 20, 1968, reading as under:—

“In exercise of the powers conferred by section 7 of the Industrial Disputes Act, 1947 and all other powers enabling him in this behalf, the Governor of Haryana hereby nukes the following amendment in the Punjab Government Labour Department's Notification No. 11495/12474-C. Lab-57/11245, dated the 7th February, 1958, namely:—

AMENDMENT

In the said Notification for the word “Rohtak” the word “Faridabad” shall be substituted.”

15. It appears that the objections to the validity of the appointment of Shri P.N Thukral, as Presiding Officer, Labour, Court, Rohtak, where raised in many cases and in order to meet those objections, the Haryana Government issued Notification No. 5416-3, Lab-68/16447 dated July 2, 1968, in the Haryana Government Gazette dated July 9, 1968, reading as under:—

“In exercise of the powers conferred by section 8 of the Industrial Disputes Act, 1947, the Governor of Haryana is pleased to appoint Shri P.N Thukral, District and Sessions Judge, Delhi, as Presiding Officer, Labour Court, Rohtak, with effect from the afternoon of the 17th July, 1967.”

16. It has been submitted by the learned counsel for the petitioners that the appointment of Shri P.N Thukral as the Presiding Officer of the Labour Court, Rohtak, was never notified in the Haryana Government Gazette and only his assumption of charge was notified through the notification dated 21/24th August, 1967. Reliance has been placed on section 7 of the Industrial Disputes Act, 1947 (hereinafter called the Act), sub-sections (1) and (2) of which read as under:—

“7(1). The appropriate Government may, by Notification in the Official Gazette, constitute one or more Labour Courts for adjudication of industrial disputes relating to any matters specified in the Second Schedule and for performing such other functions as may be assigned to them under this Act.

(2) A Labour Court shall consist of one person only to be appointed by the appropriate Government.”

17. Rule 5 of the Industrial Disputes (Punjab) Rules, 1958, is also relied upon. This rule reads as under:—

“The appointment of a Board, Court, Labour Court or Tribunal, together with the names of persons constituting the Board, Court, Labour Court or Tribunal shall be notified in the Official Gazette.”

18. On the basis of this provision it is submitted that the appointment of Shri P.N Thukral as the Presiding Officer of the Labour Court, Rohtak was necessary to be notified in the Haryana Government Gazette and since it was not so notified, his appointment did not take effect. The learned counsel for the respondents has, in reply to this argument, submitted that section 7 of the Act and rule 5 set out above, did not apply in the case of Shri P.N Thukral because he had been appointed to fill a vacancy under section 8 of the Act which does not require that his appointment should be notified in the Government Gazette, Section 8 reads as under:—

“If, for any reason, a vacancy (other than a temporary absence) occurs in the office of the Presiding Officer of a Labour Court, Tribunal or National Tribunal or in the office of the Chairman or any other Member of a Board or Court, then, in the case of a National Tribunal the Central Government and in any other case, the appropriate Government, shall appoint another person in accordance with the provisions of this Act to fill the vacancy, and the proceeding may be continued before the Labour Court, Tribunal, National Tribunal, Board or Court, as the case may be, from the stage at which the vacancy is filled.”

19. It is submitted that rule 5 only applies when the Labour Court is initially constituted and the name of the Presiding Officer has to be notified along with the constitution of the Labour Court in the Government Gazette but it does not apply to the vacancy to be filled in later. I am in agreement with the submission made by the learned counsel for the respondents. Section 8 does not require that the appointment of a person to fill a vacancy has to be notified in the Government Gazette. Rule 5 applies only when the Labour Court is constituted for the first time. It is the establishment of the Labour Court together with the name of the person constituting it, which has to be notified in the official Gazette and not the vacancy which is filled after the first appointment when no Court is established but only an appointment is made of the Presiding Officer to fill the vacancy caused by the relinquishment of the office by the previous incumbent. It was, therefore, not necessary for the Government to notify in the Government Gezette the appointment of Shri P.N Thukral, as the Presiding Officer of the Labour Court, Rohtak. In any case the notification dated 21/24th August, 1967, amounts to notifying the appointment of Shri P.N Thukral, as the Presiding Officer of the Labour Court, Rohtak and the assumption of charge by him of that office on July 17, 1967. To the notification dated 21/24 August, 1937, the objection raised is that it is not expressed in the name of the Governor of Haryana and, therefore, it cannot be said to be by the State Government This notification implied that Shri P.N Thukral had been appointed earlier than July 17, 1967, on which date he assumed charge of that office. The record produced by the learned Advocate General shows that the appointment of Shri P.N Thukral, as Presiding Officer of Labour Court, Rohtak, had been made by the Chief Minister, Haryana State, and his appointment was therefore, by the State Government. As I have said above this appointment was not to be notified in the Government Gazette. The Haryana State Government in any case, to remove all doubts, issued a notification dated July 2, 1968, in the Haryana Government Gazette dated July 9, 1968, which has been set out above. But to this notification an objection is raised that no appointment could be made with retrospective effect. For this proposition, reliance has been placed on a judgment of their Lordships of the Supreme Court, in 1Ajit Singh v. The State of Punjab, 1967 P.L.R 271, in which it was held:—

“Before a person can start acting as a Consolidation Officer, he must be appointed as such. Before he is appointed, he has no authority to exercise any of the functions of a Consolidation Officer. What he does purporting to act as a Consolidation Officer, has no binding force on the owners and other persons affected in the estate. The Government cannot, by appointing him retrospectively, clothe him with authority retrospectively. This can be done only, by the Legislature subject to the provisions of the Constitution.”

20. In that case there was no appointment, as Consolidation Officer of Gurkirpal Singh who purported to act as such, prepared a draft scheme and published it on November 8, 1961. It was on May 11, 1962, that a notification was published in the Gazette purporting to appoint Shri Gurkirpal Singh as Consolidation Officer in respect of that estate with effect from November 4, 1961. It is thus apparent that in that case there was in fact no appointment of Shri Gurkirpal Singh as Consolidation Officer prior to May 11, 1962, on which date the notification was published appointing him with retrospective effect. In the instant case the appointment order was issued to Shri P.N Thukral on July 11, 1967, and, therefore, it cannot be said that there was no appointment of Shri P.N Thukral as Presiding Officer, Labour Court, Rohtak. The only objection, pointed out by the learned counsel for the petitioner, is that his appointment as Presiding Officer, Labour Court, Rohtak, had not been notified in the Government Gazette, and that the order appointing him had not been expressed in the name of the Governor as is required by Clause (1) of Article 166 of the Constitution. Reliance has been placed on the judgment of their Lordships of the Supreme Court in Bachitlar Singh v. State of Punjab, A.I.R 1963 Supreme Court 395, wherein their Lordships held:—

“Before something amounts to an order of the State Government, two things are necessary. The order has to be expressed in the name of the Governor as required by Clause (1) of Article 166 of the Constitution and then it has to be communicated. The Constitution requires that the action must be taken by the authority concerned in the name of the Governor. It is not till this formality is observed that the action can be regarded as that of the State.”

21. I have held above that the appointment was made by the state Government and the letter dated July 11, 1967, states so and it was not necessary to issue such a notification. I, therefore, hold that the appointment of Shri P.N Thukral, as Presiding Officer, Labour Court, Rohtak, with effect from July 17, 1967, was in order and is not open to challenge.

22. The difficulty, however, has been occasioned by the notification of the Haryana State Government dated July 20, 1968. By this notification, the notification of the Punjab Government dated February 7, 1958, has been amended so as to read “Faridabad” for “Rohtak”. The amended notification will have prospective effect with effect from June 20, 1968 and will read as under:—

“In exercise of the powers Conferred by section 7 of the Industrial Disputes Act, 1947, the Governor of Punjab is pleased to constitute a Labour Court with headquarters at Faridabad, and to appoint Shri Sher Singh Bakshi, retired District and Sessions Judge, as its Presiding Officer, with effect from the date he actually lakes over, on the following terms and conditions:—

(1) He will draw the same pay which he was in receipt at the time of his retirement minus his gross pension subject to the maximum of Rs. 1000 per mensem without dearness allowance;

(2) He will be entitled to all leave and medical benefits which are admissible to temporary Gazetted Government Servants in the State Service.”

23. This notification is issued in, the name of Governor of Punjab and not the Governor of Haryana. I, however, attach no importance to this technicality as after the Punjab Reorganization Act, instead of the Governor of Punjab, the Governor of Haryana has to be read in connection with the State of Haryana. But the objection that is fatal is that instead of saying; that Shri P.N Thukral will be the Presiding Officer of the Labour Court, Faridabad, it states that Shri Sher Singh Bakshi has been appointed as the Presiding Officer of the Labour Court, Faridabad. To my mind the effect of this notification was that the Labour court, Rohtak, was abolished and a Labour Court at Faridabad was constituted with Shri Sher Singh Bakshi as its Presiding Officer. The notification was issued under section 7 of the Act which leads to the conclusion that a new Labour Court was being established at Faridabad with Shri Sher Singh Bikshi as its Presiding Officer I fail to understand why a notification could not be issued transferring the headquarters of the Labour Court, Rohtak, to Faridabad alongwith its Presiding Officer and why it was consider necessary only to amend the previous notification issued by the Punjab Government to achieve that purpose. The subsequent notification dated July 2, 1968, published in the Government Gazette dated July 9, 1958, only validates the appointment of Shri P.N Thukral as the Presiding Officer, Labour Court, Rohtak, with effect from July 17, 1967. It is pertinent to note that this notification does not mention “Labour Court, Rohtak, now at Faridabad” to show that only the headquarters of the Court were transferred and Shri P.N Thukral continued to be its Presiding Officer. Since Shri P.N Thukral was never appointed as the Presiding Officer of the Labour Cout, Fridabad this notification cannot be said to apply to him as Presiding Officer of that Court. I am, therefore, constrained to hold that the appointment of Shri P.N Thukral as the Presiding Officer, Labour Court, Faridabad, was neither legal nor in order. In my opinion, such an appointment was never made.

24. I find no force in the submission of the learned counsel for the petitioners that the Government had no power to change the headquarters of the Labour Court. Rohtak, to Faridabad. Since under section 7 of the Act, one or more Labour Courts can be constituted in the State, in my opinion, it is equally permissible under that authority to the State Government to transfer the headquarters of the Court from one place to another within its territory.

25. It has been then submitted by the learned counsel for the respondents that having regard to section 9(1) of the Act, I should not declare the appointment of Shri P.N Thukral as Presiding Officer of the Labour Court, Faridabad as illegal. Sub-section (1) of section 9, on which reliance is placed, reads as under:—

“No order of the appropriate Government or of the Central Government appointing any person as the Chairman or any other Member of a Board or Court or as the Presiding Officer of a Labour Court, Tribunal or National Tribunal shall be called in question in any manner; and no act or proceeding before any Board or Court shall be called in question in any manner on the ground merely of the existence of any vacancy in, or defect in the constitution of, such Board or Court.”

26. Before resort can be had to this section, it must be shown that there was an appointment of Shri P.N Thukral as the Presiding Officer, Labour Court, Faridabad. I have held above that there was no such appointment and, therefore, section 9(1) does not preclude me from examining his appointment Moreover, this provision relates to civil suits only and not to the petitions under Article 226, of the Constitution.

27. It was held by a Division Bench of this Court (Mehar Singh, C.J and Shamsher Bahadur, J.) in Haryana 3Co-operative Transport Ltd. v. State of Punjab, I.L.R 1969 Punjab and Haryana 532:—

“Being in respectful agreement with the view expressed by the Benches of the Punjab and Rajasthan High Courts we are of the opinion that the infirmity in the appointment of the second respondent which has been conceded to be in contravention of the statutory provisions, cannot be overlooked on the plea that such a matter cannot be called in question in any manner under sub-section (1) of section 9 of the Act. The powers of certiorari and quo warranto under the plenary powers of Article 226 of the Constitution give ample authority to this Court to grant the relief which has been sought in this Court.”

28. The following judgments relied upon by the learned counsel for the respondents have no application and are distinguishable:—

(1) 4The Mewar Textile Mills Ltd. Bhilwara v. The Industrial Tribunal, A.I.R 1951 Rajasthan 161, in which it was observed:

“It is enough to say that we do not think that the appointment was invalidated because Shree Sukhdeo Narain was over 60 years old or because the original order said that his appointment was for only two months or because there was some defect in the manner of publication of the appointment.”

(2) 5The United Commercial Bank Ltd. v. Workmen, A.I.R 1951 Supreme Court 230, in which it was held:—

“In respect of a Tribunal when the services of a member other than the Chairman have ceased to be available, the rest by themselves have no right to act as the Tribunal, without the Government re-constituting the Tribunal as a Tribunal of the remaining members.”

(3) 6G.C Bezbarua v. State of Assam, A.I.R 1954 Assam 161, in which it was held:—

“Where the Government appoints a member of the Tribunal or constitutes a Tribunal under Section 7 one has to look to the substance of the notification, and not merely to its form. The Court has to read the order as a whole. Where essentially the notification shows that a person is not merely appointed a member of the Tribunal but constitutes the Tribunal itself, composite notifications of this character constituting the Tribunal and simultaneously appointing the member thereof are not unknown and have been held to be valid in serveral cases.”

4. 7Statesman (Private) Ltd. v. H.R Deb, A.I.R 1968 Supreme Court 1495, in which the appointment of a magistrate who held a judicial office for 19 years and performed functions primarily of a judicial character as Presiding Officer under section 7(3)(d) of the Act, was held to be in order and not liable to be interfered with in view of section 9 of the Act.

29. The last argument submitted on this point is that the Labour Court, Rohtak after the re-organisation of the erstwhile State of Punjab ceased to exsit and there exsited no such Labour Court at Rohtak because the State of Haryana did not issue any notification specifying the Labour Court at Rohtak to exercise functions under the Industrial Disputes Act, 1947, as is required by section 91 of the Punjab Re-organisation Act 31 of 1966. I do not find any force in this submission. That section only applies when an authority or Tribunal is to be appointed after the coming into force of the Act. The Labour Courts already exsiting were continued by virtue of the provisions contained in sections 83 and 93 of the said Act. Sections 83, 91 and 93 are reproduced below—

“83. Provisions as to continuance of officers in the same posts— Every person who immediately before the appointed day is holding or discharging the duties of any post or office in connection with the affairs of the existing State of Punjab in any area which on that day falls within any of the successor States shall continue to hold the same post or office in that successor State and shall be deemed, on and from that day to have been duly appointed to the post or office by the Government of, or other appropriate authority in, that successor State: Provided that nothing in this section shall be deemed to prevent a competent authority on or after the appointed day from passing in relation to such person any order affecting his continuance in such post or office.”

“91. Power to name authortises, etc., for exercising statutory function.—The Central Government, as respects the Union territory of Chandigarh or the transferred territory, and the Government of the State of Haryana as respects the territories thereof may, by notification in the official Gazette, specify the authority, officer or person who on and from the appointed day, shall be competent to exercise such functions exercisable under any law in force on that day as may mentioned in that notification and such law shall have effect accordingly.”

“93. Transfer of pending proceeding.—Every proceeding pending immediately before the appointed day before a court (other than a High Court), tribunal authority or officer in any area which on that day falls within a State or Union territory shall, if it is a proceeding relating exclusively to the territories which as from that day are the territories of an other State of Union territory, stand transferred to “the correspending court, tribunal, authority or officer in that other State or Union Territory, as the case may be.

(2) If any question arises as to whether any proceeding should stand transferred under sub-section (1), it shall be referred to the High Court having jurisdiction in respect of the area in which the court, tribunal authority or officer before which or whom such proceeding is pending on the appointed day is functioning, and the decision of that High Court shall he final.

(3) In this section—

(a) ‘proceeding’ includes any Suit, case or appeal; and

(b) corresponding court, ‘tribunal Authority or officer’ in a State or a Union territory means—

(i) the court, tribunal, authority or officer in that State or Union territory in which or before whom, the proceeding would have lain if it had been instituted after the appointed day; or

(ii) in case of doubt. Such court, tribunal, authority or officer in that state or Union territory, as may be determined after appointed day by the Government of that State or the Central Government, as the case may be, or before the appointed day by the Government of the existing State of Punjab, to be the correspondeing court, tribunal, authority or officer.”

30. In accordance with the provisions of section 83, the Presiding Officer of the Labour Court, Rohtak, who held that office on October 31, 1966, continued to hold that office with effect from November 1, 1966, the date on which the State of Haryana was created. It did not require any notification by the Haryana State to continue that Court or to appoint its Presiding Officer by a fresh notification. The learned counsel his argued that this section only provides for continuance of office of the officer concerned but does not provide for the continuance of the tribunals like Labour Courts and again fail to appreciate the soundness of this argument. An officer holds a post and he can continue to hold that post only if that post continues to exist. The continuance of an officer in his post necessarily implies the continuance of that post as well. The matter is made clear by section 93 set out above, according to which if those proceedings related to the matters over which the corresponding Court in the other State has jurisdiction after the reorganisation, they shall stand transferred to that Court. It will not be out of place to mention here that in the erstwhile State of Punjab there were two Labour Courts, one at Jullundur and the other at Kohtak, and both of them had jurisdiction over the entire State of Punjab. It was in the discretion of the State Government whether to refer a particular dispute to the Labour Court at Jullundur or to the Labour Court at Rohtak. The effect of section 93 of the Punjab Re organisation Act was that the cases pending in the Labour Court, Jullundur, which related to the territories comprised in the state of Haryana after the re-orgnnisation stood transferred to the Labour Court, Rohtak, and similarly all cases pending in the Labour Court at Rohtak, prior to re-organisation which related to the territories of the new State of Punjab stood transferred to the Labour court at Jullundur. It cannot, therefore be said that merely because no notification was issued by the State of Haryana under section 91 of the Punjab Re-organisation Act, the Labour Court at Rohtak which was functioning prior to re-organisation ceased to exist. On the appointed day Shri H.R Gupta was the Presiding Officer of the Labour Court at Rohtak and he continued to hold that office till his appointment was declared invalid by this Court, which caused a vacancy in the office of the Presiding officer of a court. It was to fill that vacancy that Shri P.N Thukral was appointed under section 8 of Act. I, therefore, hold that the Labour Court at Rohtak existed when Shri P.N Thukral was appointed its legal.

31. The next point of importance argued before me is the vires of section 2-A of the Act which reads as under:—

“Where any employer discharges, dismisses, retrenches or otherwise terminates the services an individual workman, any dispute or difference between that workman and his employer connected with, are arising, out of such discharge, dismissal, retrenchment or shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of work man is a party, to the dilute.”

32. The vires of this section were challenged in Civil Writ No. 1495 of 1968, 8Sirsa Electric Supply Co. v. Union of India, which was referred by me to a larger Bench by order dated November 18, 1968. That writ petition is said to be on the dailly list of the First 9Toshniwal Bros. (P.) Ltd. v. Lt. Governor Delhi, decided on May 10, 1969, has held that section 2-A is constitutionally valid and judgment. I have decided to adjudicate upon this point and not to leave it undecided to a wait the decision of the Division Bench.

33. The arguement pressed before the Full Bench was that Entry No. 22 in List III seventh Schedule of the Constitution, must be construed to exclude disputes relating to individual workman and that it is beyond the legislative competence of the Parliament by a deeming provision, to convert the discharge, dismissal retrenchment or termination of the services of an individual workman and a dispute or difference between such workman and his employer connected with or arising out of such discharge, dismissal, retrenchment or termination into an industrial dispute without other workman or a Union of workman being a party thereto. The learned Judges have exhaustively dealt with that argument and have come to the conclusion that it was within the competence of the Parliament to enact Section 2-A of the Act. It has been further submitted before me by the learned counsel for the respondents that even if Section 2-A could not be enacted having regard to Entry No. 22 in List III of the Seventh Schedule to the Constitution, the Parliament was competent to enact it by virtue of Entry 97 in List I of the Seventh Schedule to the Constitution as was held in regard to the annuity deposits by their Lordships of the Suprme Court in 10Harkishan Bargav v. Union of India, A.I.R 1966 Supreme Court 619. I find force in this arguement as well I am in respectful agreement with the view taken by the learned Judges of the Full Bench of the Delhi High Court that the enactment of Section 2-A was within the competence of the Parliament having regard to Entry No. 22 in List III of the Seventh Schedule to the Constitution. But even if it is assumed for a moment that it is not so covered, the Parliament had the jurisdiction to enact this provision in the Act by virtue of the powers given to it by Article 248 of the Constitution read with Entry 97 in List I of the Seventh Schedule to the Constitution.

34. The argument that has been emphathically pressed by the learned counsel for the petitioners is that the Parliament could not give an artificial definition to ‘industrial dispute’ which went contrary to the interpretation of that phrase made by the Supreme Court and the High Courts of this country and which was in consonance with the general connotation of the words. ‘Industrial dispute’ as the community understood it. ‘Industrial Dispute’ was interpreted by the Supreme Court to mean a dispute which was supported by a trade union or sufficient number of workmen of the industry concerned and this definition given by the Supreme Court could not be given a go by the Parliament by enacting section 2-A of the Act. It had been held by their Lordships of the Supreme Court in various judgments that individual disputes between a workman and the management did not constitute an industrial dispute. In 11Northern India Motors (P.) Ltd. v. Mortis (Kt.), 1960 (1) L.L.J 551, it was held by their Lordships of the Supreme Court:—

“It is well settled that before any dispute between the employer and his employee or employees can be said to be an industrial dispute under the Act, it must be sponsored by a number of workmen or by a union representing them. It is not necessary that the number of workmen of the union that sponsors the dispute should represent the majority of workmen. Even so, an individual dispute cannot become an industrial dispute at the instance of the aggrieved individual himself. It must be a dispute between the employer on the one hand and his employees acting collectively on the other. This essential nature of an industrial dispute must be borne in mind in interpreting the material clause in section 33(1)(a) of the Act.”

35. Similar observations in Newspapers Ltd. v. State Industrial Tribunal, U.P, A.I.R 1957 S.C 532, and Workman of Dharampal Premchand (Saughandhi) v. Dharampal Premchand (Saughandhi), 1965 (1) L.L.J 668, have also been referred to I do not find any merit in this argument in view of the observations of their Lordships of the Supreme Court in 14Jalan Jalan Trading Company Private Ltd v. Mill Mazdoor Sabha, A.I.R 1967 S.C 691, which are to the following effect—

“It is true that by the impunged legislation certain principles declared by this Court e.g in 16Express Newspaper (Private) Ltd. v. Union of India, 1959 SCR 12 : (AIR 1958 S.C 578) in respect of grant of bouns were modified, but on that account it cannot be said that the legislation operates as fraud on the Constitution or is a colourable exercise of legislative power. Parliament has normally power within frame-work of the Constitution to enact legislation which modifies principles ??? by this Court as applicable to the determination of any dispute, and by exercising that power the Parliament does not perpetrate fraud on the Constitution an enactment may be charged as colourable, and on that account “void, only it be found that the legislature has by enacting it trespassed upon a field outside its competence: K.C Gajapti Naryan Deo v. State of Orissa, 1954 SCR 1 : (AIR 1953 S.C 375).”

36. It cannot be said that a dispute between an individual workman and the management can never be termed an industrial dispute. The essential feature of the dispute is that it must relate to an industry, it must be between the management and the workmen or workman or between an employer and an employer or between workmen and workmen. The definition as given in section 2(k) is susceptible of the interpretation that a dispute between a workman and the management is within the ambit of ‘industrial dispute’ it we read singular for the plural according to section 13 of the General Clauses Act. The exposition of the scheme of the Act is given in various judgments of the Supreme Court and the High Courts as it stood before the insertion of section 2-A in it the legislature considered that the interpretation given by the Courts was not in consonance with the intention of the Act, and therefore. Section 2-A was inserted by the Industrial Disputes Amendment Act No XXXV of 1965. The object of enacting this provision was stated as under:—

“In construing the scope of industrial dispute, Courts have taken the view that a dispute between an employer and an individual workman cannot per se be an industrial dispute, but it may become one if it is taken up by a union or a number of workmen making a common cause with the aggrieved individual workman. In view of this, cases of individual dismissals and discharges cannot be taken up for conciliation or arbitration or referred to adjudication under the Industrial Disputes Act, unless they are sponsored by a union or a number of workmen it is now proposed to make the machinery under the Act avaible in such cases.”

37. A judgment of their Lordships of the Supreme Court in 17Central Provinces Transport Service Ltd. v. Raghunath Gopal Patwardhan, AIR 1957 S.C 104, has been relied upon by the learned Advocate for the workman-respondent in support of the argument that in case the Act so provides an individual dispute between a workman and the management can amount to an ‘industrial dispute’. In that case their Lordships were considering the provisions of C.P and Berar Industrial Disputes Settlement Act No. 23 of 1947 wherein ‘industrial dispute’ was defined as meaning any dispute or difference connected with an industrial matter arising between employer and employee or between employers and employees (Section 212). Section 2(13) of that Act defined “industrial matter” to mean “any matter relating to work, pay, wages, reward, hours, privileges, rights or duties of employers or employees, or the mode, terms and conditions of employment or refusal to employ and includes questions pertaining to (a) the relationship between employer and employee, or to the dismissal or non-employment of any person………” In view of these definitions it was held that the expression “industrial dispute” not only covered the disputes of workmen as a class but also their individual disputes. It cannot, therefore, be said that by enacting Section 2-A of the Act the legislature has given such an impossible meaning to the expression “industrial dispute” as cannot be justified on any basis.

38. The next submission made by the learned counsel for the petitioners is that the provisions of Section 2-A of the Act are in conflict with the provisions made in other sections of the Act, particularly, sections 10, 18, 23, 33 and 33-B. I find no force in this argument it is submitted that section 10 confers powers on the State Government to refer any dispute for adjudication to a proper authority mentioned therein and in case individual disputes are also included in the definition of the expression ‘industrial dispute’, the Government will have the right to pick and choose cases of individual disputes which may be reffed for adjudication. I do not understand what difference does it make in the case of individual disputes and disputes in which more than one workman are concerned. Section 10 was held to be intra vires by their Lordships of the Supreme Court in 18Niemla Textile Finishing Mills Ltd. v. The 2nd Punjab Tribunal, AIR 1957 S.C 329 and the mere enactment of Section 2-A of the Act does not make that section ultra vires because individual disputes are also now com pret ended in the definition of ‘industrial dispute’. There is no repugnancy between Section 2-A and Section 10 of the Act. Under section 18(3) of the Act the award is binding on—

(a) all parties to the industrial dispute;

(b) all parties summoned to appear in the proceedings as parties to the dispute, unless the Board, arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, records the opinion that they were so summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen, all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part.

39. Emphasis is laid down on clause (d) of sub-section (3) of Section 18 set out above and it is submitted that any award given in an individual dispute will become binding on the other workmen then employed or to be employed later in his place. While advancing this argument it is not realised that Section 2-A only provides for a dispute between an individual workman and his employer relating to his dismissal, discharge, retrenchment or otherwise termination of services. In that dispute no other workman is interested and so it will not affect any other workman whether then employed or to be employed later on. It is also to be borne in mind that an award remains in operation for one year unless it is extended for any subsequent period. So this argument of the learned counsel also fails. Section 23 has also no application as the prohibition to go on strike or to declare a lock-out is in respect of the workmen concerned in an industrial dispute during the pendency of conciliation proceedings before a Board or before a Labour Court, Tribunal or National Tribunal, during the pendency of arbitration proceedings and during the period in which a settlement or award is in operation, in respect of any of the matters covered by the settlement or award this section necessarily relates to the matters in which workmen generally are interested and will not apply to the case in which an individual workman is concerned. Similarly section 33 prohibits an employer from changing the conditions of service of the workman in regard to any matter connected with the dispute. Under section 2-A the dispute will be with regard to the dismissal discharge, retrenchment or removal from service of an individual workman and the employer is only prohibited from changing his conditions of service. Section 33B only deals with transfer of proceedings and has nothing to do with individual disputes or collective disputes. I, am, therefore, of the opinion that the enactment of section 2-A of the Act is not repugnant to the other provisions of the Act and, therefore, cannot be declared to be ultra vires on that ground.

40. The submission of the learned counsel that in the case of individual disputes the provisions of the Specific Relief Act are violated is no ground to declare the section to be ultra vires Both the Acts are Central Acts and it is open to the Parliament to allow re-instatement in the case of certain categories of employees, Re-instatement is also allowed in the case of Government servants when their dismissal, discharge, retrenchment or removal from service is dared to be illegal. What has been emphasised by the learned counsel is that if individual disputes are also brought within the ambit of ‘industrial disputes’ the right of the employer to deal with individual employees according to his will as guaranteed by Article 19(1) of the Constitution is taken away. I do not find any merit in this submission as clause (g) of Article 19(1) does not guarantee any fundamental right to the employer to deal with his employees as he likes during the course of his business. All that this clause guarantees is the right to practise any profession or to carry on any occupation, trade or business and that is not curtailed by making a legislative provision for the settlement of any dispute between an employer and his workman which relates to his employment, dismissal, discharge, retrenchment or removal from service. The Parliament is competent to legislate on the subject of ‘Labour welfare’ and legislation can be made even for an individual workman in an industry. I am, therefore, in respectful agreement with the view expressed by the learned Judges of the Full Bench of the Delhi High Court that section 2-A of the Act, as enacted by the Parliament, is a perfectly valid piece of legislation.

41. In Civil Writ Nos. 1129 and 1130 of 1969, it has been pointed out that the orders of reference to the Labour Court, Faridabad, by the Governor of Haryana, should be quashed on the ground that the word ‘workmen’ instead of “workman” has been used in spite of the fact that both the orders of reference related to individual disputes of respondent No. 3 in each case and there was no other workman of the petitioner-company or any trade-union supporting this respondent. It is stated that the effect of the use of the word ‘workmen’ instead of ‘workman’ is that some other workmen of the petitioner-company have been trying to take advantage of this reference under section 33 of the Act by saying that during the pendency of these disputes, conditions of their service etc. could not be interfered with. This section only prohibits the employer from altering to the prejudice of he workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings. The concerned workman in each case is respondent No. 3 and none else, and, therefore, in my opinion, no other workman can take advantage of the pendency of the dispute between the petitioner-company and respondent No. 3 in each case for safeguarding his interests or conditions of service. The notifications are not liable to be quashed on that ground. They are also not liable to be quashed on the ground that there was no labour Court at Faridabad at the time the references were made. Labour Court at Faridabad was established by the Governor of Haryana by notification dated June 20, 1968, and, therefore, the Labour Court at Faridabad did exist at the time the reference was made. It is of course true that there was no Presiding Officer of that Court on that date but the reference cannot be declared invalid on that ground.

42. Another argument advanced by the learned counsel for the petitioners is that the reference of the dispute in each case to the Labour Court is bad in law as the State Government was under the belief that the individual dispute of each workman was being supported by the other workmen of the industry and, therefore, the dispute became an industrial dispute. It was not present to the mind of the Government that the dispute in each case was the individual dispute of the workman concerned and it had not been supports by other workmen of the industry or any trade union. In my opinion this argument is without any substance. The re is no doubt that the pre-amble of the notification mentioned that a dispute existed between the workmen and the management. That is not very material as all that I have to see in order to decide the validity of the reference is whether it has been made by the appropriate Government and whether the dispute referred is an industrial dispute. The reference has been made by the Governor of Haryana who was the competent authority and the dispute referred is an industrial dispute having regard to the provisions of the Act. This submission is, therefore, repelled.

43. It is then argued by the learned counsel for the petitioners that the Labour Court had no jurisdiction to pass an order awarding costs while deciding a preliminary objection I do not and any force in this argument as according to section 11, sub-section (7) of the Act, it is in the discretion of the Labour Court to award costs incidental to any proceeding before it.

44. While repelling the preliminary objection, it was open to the Labour Court to pass an order of costs. There is, thus, no infirmity in the orders dated January 27, 1969 and January 30, 1969, awarding Rs. 100.00 as costs in the two cases.

45. The order dated April 17, 1969, awarding Rs. 50.00 as cost and making the payment thereof conditional to the management taking part in further proceedings, is, however, not in accordance with section 11(7) of the Act and is liable to be quashed. The costs awarded by a Labour Court can be recovered by the person entitled to the same by making an application to the appropriate Government which is empowered to recover them in the same manner as arrears of land revenue. The Labour Court cannot award the conditional costs so as to deprive any part to the dispute from participating in the proceedings merely on the ground that the costs, which will be recovered by the Government on the application of the person entitled thereto, have not been paid.

46. Since I have held the appointment of Shri P.N Thukral as Presiding Officer of the Labour Court, Faridabad, to be illegal and not in order, these petitions are accepted and the orders dated January 27, 1969 and April 17, 1969 in Civil Writ No. 1129 of 1969, and orders dated January 30, 1969 and April 17, 1969, in civil Writ No. 1130 of 1969 and the order dated December 30, 1968, in civil Writ No. 1058 of 1969, are hereby quashed. In the circumstances of the case the parties are, however, left to bear their own costs.