DIXIT, J.

1. This is a petition under Art. 226 of the Constitution of India for the issue of a writ in the nature of quo warranto against the non-applicant Shri K.B. Kher to show cause as to by what authority he is functioning as a Tribunal under S. 7 of the Industrial Disputes Act, 1947 (Act No. 14 of 1947) and is exercising and performing the powers, duties and functions of a tribunal under the Act, and for the issue of a writ of certiorari for quashing proceedings before Mr. Kher in respect of an industrial dispute between the petitioner land J.B. Mangharam Biscuit Factory Labour Union, Gwalior, as also the proceedings commenced against the petitioner under S. 53-A of the Act.

2. The facts which give rise to this petition are not in controversy and may be shortly stated. The Industrial Disputes Act, 1947 provides by S. 7 for the establishment of Industrial Tribunals, The relevant portion of that Section is as follows :

"1. The appropriate Government may constitute one or more Industrial Tribunals for the adjudication of industrial disputes in accordance with the provisions of this Act.

2. A 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.

3. Where 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

(a) is 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 Sub-Section to a Tribunal shall be made of any person not qualified under cl. (a) or cl. (b) except with the approval of the High Court of the State in which the Tribunal has, or is intended to have, its usual seat."

On 3-2-1955 the Government published a notification in the Gazette appointing Shri Kher to be "a permanent Industrial Tribunal" under S. 7 of Act No. 14 of 1947. Shri Kher is a member of Madhya Bharat Judicial Service holding the substantive rank of a Civil Judge, First Class. Early in January 1955 his services were placed at the disposal of the Development and Labour Department for appointment as a Judge of the Industrial Court under the Bombay Industrial Relations Act, 1946, as adapted in Madhya Bharat by the Madhya Bharat industrial Relations Adaptation Act, Samvat 2000.

He was working as an Additional District Judge, Indore, when his services were loaned to the Development Department. Shri Kher was never a Judge of a High Court or a District Judge. On 21-6-1955 by Order No. 3274-399-14-55 the Government referred a dispute between the applicant factory and its Labour Union to the adjudication of Industrial Tribunal. The order was published in the Gazette dated 30-6-1955 (Annexure-'B' to the petition) and sets out the matters referred to the Tribunal for adjudication.

On 1-8-1955 the Government issued a memorandum No. 3247-14-399-55 amending the reference dated 21-6-1955 by adding one more point of dispute for adjudication. In pursuance of these references Shri Kher commenced proceedings for adjudication of the points of dispute referred to the Industrial Tribunal and the matter is now pending before him.

At the commencement of the proceedings, the applicant challenged before the Industrial Tribunal the validity of the appointment of the Industrial Tribunal presided over by Shri Kher and of the proceedings commenced by him on the grounds which constitute the main points at issue between the parties in this petition. Shri Kher rejected all the objections raised by the petitioner. It was at this stage that the present application was filed.

3. The applicant contends that Shri Kher was not qualified to be appointed as a one-member Tribunal under cl. (a) or (b) of S. 7(3) of the Act; that if and so far as the Government purported to appoint him as the Tribunal und