ew Petition No 37 of 1959
Petition for Review of this Court s judgment and order dated October 29 1959 in Civil Appeal No 38 of 1958
C K Daphtary Solicitor General of India B Sen J B Mehta and J B Dadachanji for the petitioner
N C Chatterjee and section section Shukla for respondents
J B Mehta and J B Dadachanji for interveners Nos 1 to 13
J B Dadachanji for interveners Nos
14 to 19 1960
August 3
The Judgment of the Court was delivered by WANCHOO J
This is an application for review of the judgment delivered by this Court to which three of us were party on October 29 1959
The ground on which review is sought is that there are mistakes and or errors apparent on the face of the record and therefore the judgment in question should be reviewed
The petitioner contends further that the judgment under review had dealt with the matter of issue of writs by High Courts under article 226 of the Constitution and this involved a question which could only have been dealt by a bench of not less than five judges and that is why the review application has been placed before a bench of five judges
Lastly it is contended that this Court should have decided the question of jurisdiction as various
other parties had agreed to be governed by the decision in this case and that would have saved multiplicity of proceedings
115 Before we deal with the points urged in support of the petition we should like to state what exactly has been decided by the judgment under review
The appeal in which the judgment under review was given came up before the Court on special leave granted under article 136 of the Constitution from a decision of the Bombay High Court in a writ petition filed there under article 226 against an order of the Payment of Wages Authority
The question of jurisdiction of the Payment of Wages Authority was raised before this Court and reliance in that connection was placed on the decision in A V D Costa vs B C Patel and another1
It was remarked in the judgment under review that there appeared to be some force in the contention relating to the jurisdiction of the Payment of Wages Authority but this Court did not go further and decide that question on the view that as there had been no failure of justice this Court would not interfere under its powers under article 136 of the Constitution particularly as the matter came before it from a decision of the Bombay High Court and not directly from the Authority
In that connection reference was made to the case of A M Allison vs B L Sen 2 in which in similar circumstances this Court had refused to decide the question of jurisdiction because it was satisfied that there had been no failure of justice
All that therefore the judgment under review decided was that where this Court is of the view that there is no failure of justice it is not bound to interfere under its powers under article 136 of the Constitution
Reference to Allisons  Case 2 was made only to show that in almost similar circumstances except that Allison s Case came to this Court on a certificate granted under article 1331 c of the Constitution this Court had refused to decide the question of jurisdiction as there was no failure of justice
The judgment under review did not deal with the powers of the High Court under article 226 of the Constitution and nowhere laid down anything in conflict with the previous decision of this Court in H V Kamath vs Syed Ahmad Ishaque and others3
1  2  3  116 Thus the narrow point decided by the judgment under review was that when dealing with an appeal under article 136 of the Constitution this Court comes to the conclusion that there is no failure of justice it is not bound to decide and interfere even when a question of jurisdiction of the original court or tribunal is raised in a case where the matter had been considered by a higher tribunal which undoubtedly had jurisdiction and the appeal to this Court is from the decision of the higher tribunal
This being the decision of this Court in the judgment under review let us see if there is any reason to review that judgment on the grounds urged in the petition
Before we consider the main ground in support of the review we should like to observe that the fact that other parties had agreed to be governed by the decision in the judgment under review can be no ground for review
Are there then such mistakes and or errors apparent on the face of record which would justify a review It is said that in dealing with whether there has been failure of justice in this case this Court omitted to consider certain provisions of the Bombay Industrial Relations Act 1946
Assuming this to be correct the question still is whether even after a consideration of those provisions the decision of this Court on the question of failure of justice would have been different
On a further consideration of the reasons given in the judgment under review for holding that there was no failure of justice we feel that the decision on this point would have been still the same even if the provisions referred to had been considered
In the circumstances we are of opinion that there is no ground for review of the judgment even if it be assumed that certain provisions of the Bombay Industrial Relations Act 1946 were relevant and had not been considered
The main plank however of the petitioner is that this Court was bound to consider the question of jurisdiction and the question whether there was failure of justice or not was bound up with the question of jurisdiction and a decision on that question was necessary to arrive at the conclusion that there was no 117 failure of justice
This contention also must in our opinion be rejected specially in the context of the narrow point which as we have already indicated was decided in the judgment under review
Besides it is not unknown to law that decisions of original courts and tribunals may be allowed to stand even though there may be some doubt as to the jurisdiction of such courts or tribunals
There are provisions in the revenue laws where in case of doubt whether the civil court or the revenue court has jurisdiction the decision of the original court is allowed to stand in certain circumstances if there has been no failure of justice  see for example sections 290 and 291 of the U P Tenancy Act 1939
Therefore when the judgment under review left the question of jurisdiction open on the ground that there was no failure of justice and in consequence this Court refused to exercise its jurisdiction under article 136 it cannot be said that something was done which was unknown to law
It is necessary to remember that wide as are our powers under article 136 their exercise is discretionary and if it is conceded as it was in the course of the arguments that this Court could have dismissed the appellant s application for special leave summarily on the ground that the order under appeal had done substantial justice it is difficult to appreciate the argument that because leave has been granted this Court must always and in every case deal with the merits even though it is satisfied that ends of justice do not justify its interference in a given case
In the circumstances we are of opinion that this Court was not bound to decide the question of jurisdiction on the facts and circumstances of this case when it had come to the conclusion in dealing with an appeal Under article 136 of the Constitution that there was no failure of justice
The review application therefore fails and is hereby dismissed with costs
Review application dismissed


Summary:
S was the karta of the Hindu undivided family consisting of himself and his younger brother
Their father was the Treasurer of a Bank till his death in 1950
During his father s lifetime S was employed as an overseer in the Bank on a salary of Rs 400 a month and subsequently after his father s death he was appointed Treasurer of the Bank at Delhi and sixteen other branches of the Bank
As Treasurer he furnished security to the Bank of certain properties of the Hindu undivided family
The agreement dated September 19 1950 between him and the Bank showed that he was appointed Treasurer on a monthly salary of Rs 175o and he was also paid certain sums of money for guaranteeing the conduct of the cashiers and other members of the Cash Department Staff which he was required to employ with the approval of the Bank
He was to carry out his duties as directed by the Bank and if in the discharge of his duties he caused any loss to the Bank he was liable to make good the loss
He was not required to serve personally but his services could be terminated by notice
In the year of account 1950 51 he received from the Bank a sum of RS
23286 as Treasurer
The Income tax authorities considered that this sum was not the individual income of S as salary but was part of the income of the Hindu undivided family and taxed if as such on the grounds 1 that the agreement between S and the Bank showed that the relationship between them was not one of master and servant but that of an employer and independent contractor and that the emoluments received by the Treasurer were profits and gains of business 2 that S was appointed Treasurer not on account of any personal qualification but because his father was a Treasurer of the Bank before him and 3 that as the security furnished by S came out of the joint family properties the emoluments could not be said to have been earned without detriment to the family property and therefore were part of the Hindu undivided family Held 1 That on the true construction of the agreement dated September 19 1950 the Treasurer was a servant of the Bank
Shivanandan Sharma vs The Punjab National Bank Ltd  and Dhayangadhara Chemical Works Ltd vs State Of Saurashtra  relied on
2 That in view of the fact that there was nothing to show that S had received any particular training at the expense of the 87 670 family funds or that his appointment as Treasurer was the result of any outlay or expenditure of or detriment to the family property but on the other hand his previous experience as an overseer of the Bank was indicative of personal fitness for his appointment as Treasurer the mere fact he had lodged joint family property by way of security would not make his earnings as Treasurer part of the income of the Hindu undivided family
The use of the words  risk of  and  detriment to  in Gokul Chand vs Firm Hukum Chand Nath Mal 1921 LR 48 IA 162 explained
Commissioner of Income tax vs Kalu Babu Lal Chand 1960 1 SCR 32o distinguished
Accordingly the emoluments received by S were in the nature of salary and therefore assessable under section 7 of the Indian Income tax Act 1922 and not under section 10 of the Act as profits and gains of business and the salary was the income of the individual S and not the income of the Hindu undivided family