The main legal point established in the judgment is the determination of the retirement age of Presiding Officers of Industrial Tribunals, based on the conflicting provisions of the Kerala Service Rules and Section 7C of the Industrial Disputes Act.

JUDGMENT :

1. The petitioners herein are working as Presiding Officers in various Industrial Tribunals in the State of Kerala. They have approached this Court seeking the following reliefs:

“(i) to declare that Sub Rule (ab) Rule 60 of Part I KSR that “a person appointed as Industrial Tribunal shall retire on superannuation at the age of 60 years” is invalid.

(ii) To declare that the retirement age of the Presiding Officers of the Industrial Tribunal as prescribed Section 7C(b) of the Industrial Disputes Act, 1947 i.e. 65 years.

(iii) To command the 1st respondent not to force the petitioners to retire before attaining the age of 65 years.”

2. The contentions raised by the petitioners can be summarized as follows:

(a) By Exts.P1 to P7 orders, the petitioners herein have been appointed as Presiding Officers of Industrial Tribunals in various Tribunals in the State of Kerala. Neither in the notification of the vacancy nor in the order of appointment, the appointing authority has prescribed the age of retirement of the appointees.

(b) Section 7C of the Industrial Disputes Act speaks about disqualification for the presiding officers of Labour Courts, Tribunals, and National Tribunals. It says that no person shall be appointed or continue in office after attaining 65 years of age. However, sub-section (3) (a) of Section 7, as applicable to the State of Kerala, stipulates that a person shall not be qualified for appointment as the Presiding Officer of a Labour Court unless he is, or has been, a judicial officer not below the rank of a District Judge or is qualified for appointment as a Judge of the High Court. In other words, a retired District Judge is entitled to be appointed as Industrial Tribunal. If that be the case there is no justification in prescribing the date of retirement of a Tribunal as 60 years.

(c) The Apex Court in Atlas Cycle Industries Ltd. Sonepat vs. Their Workmen, AIR 1962 SC 1100 has held that the insertion of the age qualification in Section 7C is consistent with an intention on the part of the Legislature to add in the light of the working of the repealed Section 7, a new provision prescribing the age of retirement for members. The above declaration made by the Hon’ble Supreme Court is categoric, and it is to be held that the retirement age of the Presiding Officers of the Tribunal constituted under Section 7A is 65 years.

(d) Until the introduction of Section 2 (c) of Section 38 of the Industrial Disputes Act, which came into effect on and from 15/9/2010, there was no provision conferring any power upon the appropriate Government to prescribe the conditions of appointments/terms and conditions of service of the Industrial Tribunals. Section 38 (2)(c) is only prospective in operation.

(e) Much prior to the introduction of Section 2(c) of the ID Act, Section 60 (ab) Part-I Kerala Service Rules was brought in by the State Government as per S.R.O No. 546/2005, and the same was published in the Gazette on 27/5/2005. The Rule states that a person appointed as Industrial Tribunal shall retire on superannuation at the age of 60 years. It is contended that the above Rule is ultra vires and without legislative competence as no power has been conferred with the State Government to fix up any age criteria for retirement for Industrial Tribunals.

(f) Exhibit P9 representation was submitted by the petitioners before the Government seeking permission for the petitioners to continue up to the age of 65 years. However, the request was rejected by Ext. P 10 letter by stating untenable reasons.

(g) The retirement age of Presiding Officers is 65 years, as is revealed from Ext. P11 notification issued by the Ministry of Labour and Employment and there is no reason why a different stand is taken by the State of Kerala.

3. A counter affidavit has been filed by respondents 1 and 2. The following contentions have been raised in the counter affidavit:

(a) Section 7A of the Industrial Disputes Act empowers the Government to appoint Industrial Trib