ition Criminal No 529 of 1987
Under Article 32 of the Constitution of India
VM Tarkunde G Narsimahullu and Nalin Kumar for the Petitioner
977 E Manohar Advocate General B Datta Additional Solicitor General TVSN Chari Ms V Grover G Ramesh and Ms A Subhashini for the Respondents
The Judgment of the Court was delivered by SHARMA J
K Madhava Rao husband of the petitioner has been detained under Section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act 1980
The petitioner filed an application under Article 226 of the Constitution before the Andhra Pradesh High Court for a writ of habeas corpus which was dismissed on 1871987
The Special Leave Petition is directed against the said order
The petitioner has also challenged the detention order by the application under Article 32 of the Constitution before this Court in Writ Petition Criminal No 529 of 1987
The grounds served on the detenu for making the detention order dated 1531987 allege that he the detenu Madhava Rao undertakes contract works of various types under South Central Railway SCR and indulged in clandestine business of diversion of levy cement meant for use in the Masonry Ballast Wall along with the railway track on the suburban section between Kachiguda and Falaknuma Railway Stations and thus acted in a manner prejudicial to the maintenance of supplies of cement an essential commodity
The facts mentioned are that on receipt of an information on 18121987 that levy cement was being transferred into non levy cement bags for its diversion to works not intended the Inspector of Police Vigilance Cell with his staff made a surprise visit in presence of witnesses at about 1 pm the same day to the site of a private building under construction and found the information passed on to him to be correct
On inquiry it was discovered that a house belonging to one Smt
Mahati Singh daughter of Y Krishna Murthy Divisional Railway Manager was under construction under the supervision of the detenu and the levy cement transferred into non levy cement bags was being stored in a nearby shed for use in the construction of the said house
The watchman of Y Krishna Murthy named Varala Vollaiah was kept there as guard
The detenu was supervising the construction of the house through his employee James George
The workmen engaged in the work were also examined by the police
The facts which came to light indicated that two days earlier that is on 16121986 200 bags of levy cement reached the site and were unloaded in the shed
James George instructed the labourers to transfer the cement into non levy cement bags and his instruction was carried out on the following day the 17th of December 1986 and 978 non levy cement bags were restitched
Yollaiah the watchman further stated that the cement was sent by the detenu through James George who had informed the witness that cement or two other lorries had also been unloaded in the nearby Kakatiyangar and stored in a room belonging to the Nageshwar Rao for similar misuse
On receiving this information the Police Inspector raided the plot in Kakatiyanagar mentioned by the witness and recovered 400 bags of levy cement
A criminal case under Clauses 12 and 13 of the AP Levy Cement Distribution Licensing and Regulation Order 1982 read with Sections 7 and 8 of the was commenced and further investigation proceeded
The investigation continued for three months till 1831987
Mahati Singh and her father Y Krishna Murthy were also examined by the police and they confirmed that the detenu Madhava Rao was looking after the construction of Smt
Mahati Singh s house
The evidence collected by the police indicated that 1000 bags of levy cement was handed over to the detenu through his employee Babu on 16121986 and out of this stock 600 bags on three lorries were despatched to Habshiguda which were discovered by the Inspector on the 18th of December 1986
Both Madhava Rao and his servant James absconded and were ultimately arrested on 1831987 when the detenu is alleged to have confessed before the Inspector of Police
The detenu was released on bail the following day that is 1931987
All these facts were mentioned in the grounds and it was stated that on a consideration of the entire circumstances the District Magistrate was of the opinion that mere launching of the criminal case against the detenu would not effectively prevent him from acting in a manner prejudicial to the maintenance of supplies of cement
The order was later confirmed by the Advisory Board
The detenu filed his first representation on the 20th of May 1987 which was rejected by the State Government as also the Advisory Board later
In the meantime a writ application being WP No 6636 of 1987 was filed before the High Court on 161987 challenging the detention order
The Writ Petition in this Court was filed on 1371987
A second representation on behalf of the detenu was filed by his cousin P Lakshmana Rao on 561987 in which a prayer was made for revocation of the detention order
It was been contended on behalf of the petitioner that it was the duty of the Central Government to consider and dispose of this representation promptly which was not 979 done
It is said that the representation remained unattended until the State Government reminded the Central Government in this regard after filing of the present writ petition and it was only then that the Central Government rejected the same on 291987
The reply is that by this representation the detenu s cousin merely reiterated the points already taken in the first representation of the detenu which had been after consideration dismissed and it was therefore not necessary to deal with the same points over and over again
Besides this representation also was considered and rejected by the Central Government later
Mr Tarkunde learned counsel for the petitioner challenged the order of detention on the grounds of i delay of about five months in passing the order ii the allegation against the detenu of diverting levy cement for private use being incorrect iii the second representation filed by the detenu s cousin having remained undisposed of by the Central Government for about three months iv the sponsoring officer s default in not placing all the relevant facts before the detaining authority before the impugned order was passed and v the order having been passed on the basis of a solitary incident
During his argument the learned counsel did not press the last point and it is therefore not necessary to deal with it except pointing out that having regard to the statement made by the detaining authority the District Magistrate that in view of the circumstances of the case including the fact that the detenu was engaged in executing many contract works for the Railways it was essential for preventing him from indulging in subversive acts similar to the one stated in the grounds to detain him there is no merit in the point which was rightly not pressed
Mr Tarkunde strenuously urged that in view of the long delay of about five months from the alleged incident on the 18th of December 1986 in passing of the impugned order the same is fit to be quashed
Learned Advocate General appearing for the State of Andhra Pradesh pointed out that the detenu was absconding for three months until he was arrested on 1831987
In reply to the argument that the detenu could not have been absconding as this fact does not appear to have been mentioned in the orders of the criminal court dealing with the bail applications the learned Advocate General placed before us the case diary of the criminal case in which the accused Madhava Rao was stated to be absconding on several dates from December 1986 to March 1987
By way of illustration the letter of the Inspector of Police dated 26121986 addressed to the Public Prosecutor High Court Hyderabad may be seen wherein it was stated 980 in paragraph 6 that Madhava Rao and James were absconding since the date of commission of the offence
In the next letter dated 111987 they were again described as absconding
The copy of the diary Part I dated 1211987 states that nobody was supplying the whereabouts of Madhava Rao
Similarly the diary dated 1511987 mentions that Madhava Rao contractor was absconding and his employees were also not available
The search for the absconding persons was being continued throughout February and March 1987 till the detenu was arrested as is fully supported by the case diary of later dates
In the meantime two applications for anticipatory bail were filed one after the other on behalf of Madhava Rao before the the criminal Court and it is true that the orders passed thereon did not state that the accused was absconding but for that reason the diary of various dates mentioning the fact cannot be ignored and it is not legitimate to claim that Madhava Rao was not absconding
We repeatedly asked learned counsel for the petitioner to show any material indicating that the detenu was present on any date before the criminal Court or was available to the police but it was conceded that there was no such document
In the second application for anticipatory bail reliance was placed on a medical certificate issued by a doctor
The diary indicates that the police inquired from the doctor on the 3rd of March 1987 about the same pointing out that the accused was an absconder
There was therefore no doubt at all that in the police records the detenu was considered to be an absconder throughout till his arrest on the 18th of March 1987
The affidavit of the District Magistrate filed before the High Court indicates that the further investigation in the case continued even after the arrest of Madhava Rao and the details of the ownership of the house in construction and the neighbouring shed and other similar relevant information could be collected only later and thus the investigation was complete on 1351987
The matter was placed before the District Magistrate on 1451987 and he passed the impugned order on the following day that is 1551987
Having regard to the circumstances there is no doubt that the respondents have satisfactorily explained the delay in passing the order
The delay cannot by itself vitiate the decision to detain a person and this is fully demonstrated by the cases of Rajendra Prasad vs State of Uttar Pradesh and another wherein the order was passed after seven months Smt
Hemlata Kantilal Shah vs State of Maharashtra  and Malwa Shaw vs The State of West Bengal AIR 1974 SC 957 wherein the orders of detention were passed five months later
The first point urged on behalf of the petitioner therefore is rejected
981 8
In support of his second point Mr Tarkunde contended that it is open to the petitioner to show that the levy cement which was being transferred into non levy cement bags did not belong to Madhava Rao and the impugned order having been passed on that assumption is therefore fit to be quashed
In other words the learned counsel said that the ground mentioned for the detention being non existent the application must succeed
Reliance was placed on a certificate dated 2361987 of the office of the Divisional Railway Manager Works Hyderabad in reply to a letter by one K Eswara Rao that 1000 bags of cement issued to him on 16121986 was Puzzolon Portland Cement Pyramid Brand of Pariyan Company and it was urged that as the 5 empty bags having the marks of Ajanta Brand Kesoram Basant Nagar AP Portland Pozzolana Cement as stated in the Panchnama page 82 of the paperbook of the Writ Petition was found by the police it must be assumed that the levy cement which was being transferred to empty bags was not the same which was issued to the detenu
Learned Advocate General appearing for the respondent State replied that there was sufficient material on the records of the case on the basis of which the detaining authority could have legitimately assumed that the cement in question was part of the cement issued to Madhava Rao
Before examining the point urged on behalf of the petitioner on merits it must be pointed out that this Court while considering petitioner s writ application is not sitting in appeal over the detention order and it is not for us to go into and assess the probative value of the evidence available to the detaining authority
Of course a detention order not supported by any evidence may have to be quashed but that is not the position here
There was clearly sufficient material before the District Magistrate to justify the forming of his opinion as stated earlier
The question was not raised in the writ petition filed before the High Court and the plea based upon the brand of cement was belatedly taken in the case and has been dealt with at same length in the judgment of the High Court which is under challenge in the Special Leave Petition
We do not consider it necessary to repeat them but we would mention briefly the argument of the learned Advocate General which appears to be well founded
Our attention was drawn to the Gatepass page 154 of the paperbook of the writ petition showing the issuance of the levy cement to the contractor that is Madhava Rao which was signed by Mohammad Chand on behalf of the Railways and Babu Madhava Rao s employees
This does not mention the name of Eashwar Rao the other employee of the contractor
It is not denied on behalf of the detenu that he has been executing many contract works for the Railways and therefore it cannot be presumed that the same consignment was the 982 subject matter of the Gate pass as well as the certificate relied upon on behalf of the petitioner
The point now urged on the basis of the brand of cement was taken on behalf of the petitioner belatedly as mentioned earlier
Besides the detenu accepted the allegations against himself in his statement recorded under Section 161 of the Code of Criminal Procedure
It is true that it may not be a legally recorded confession which can be used as substantive evidence against the accused in the criminal case but it cannot be completely brushed aside on that ground for the purpose of his preventive detention
The records further show that the oral evidence of the watchman and the labourer engaged in the house construction proved that it was the levy cement issued to the detenu which was being diverted at his instance
Before closing this chapter it may be re stated that the sufficiency of the materials available to the detaining authority is not to be examined by the Court
So far as the second representation filed by Madhava Rao s cousin Lakshmana Rao is concerned it has in fact been disposed of by the Central Government but about 3 months later after its filing
It was argued that Section 14 of the Act clothes the authority with the power of revoking the detention order and such a power carries with it the duty to exercise it whenever and as soon as changed or new factors call for the exercise of that power
Reliance was placed on the observations of this Court at page 786 in Haradhan Saha and another vs The State of West Bangal and others  and those in paragraph 9 of the Judgment in Sat Pal vs The State of Punjab It is true that such a power coupled with the duty exists but the duty to exercise it arises only where new and relevant facts and circumstances come to light
This was not so here and as observed in para 13 of the Judgment in State of Uttar Pradesh vs Zavad Zama Khan 1984 3 SCC 505 there is no right in favour of the detenu to get his successive representations based on the same grounds rejected earlier to be formally disposed of again
In any event no period of limitation is fixed for disposal of an application under Section 14 and as we have seen earlier the second representation filed by Lakshamana Rao indeed was considered and rejected
On behalf of the petitioner it was next contended that the fact that both Krishna Murthy and Smt
Mahati Singh had retracted their alleged statements before the police implicating Madhava Rao and the order in the criminal case granting bail to the detenu conditionally were not placed before the detaining authority which has vitiated the detention order
It is claimed that as a matter of fact the 983 aforesaid two persons never made any statement before the police or anybody else connecting Madhava Rao with the construction of Smt
Mahati Singh s house and it is incorrect to say that they were ever questioned by the police as alleged
Reference was made to the order passed in the criminal case on the anticipatory bail application of the detenu in which there is no such statement
The learned counsel argued that the absence of such a reference in the order leads to the conclusion that the police never examined them
The High Court has rightly repelled a similar argument pointing out that in the application for anticipatory bail of Smt
Mahati Singh it was categorically stated that the vigilance police had gone to the residence of her father and thoroughly interrogated her and her father
Krishna Murthy also made a similar statement in his application for anticipatory bail
It will therefore be idle to suggest otherwise merely for the reason that the criminal court did not choose in its order to mention these facts
Besides it has long been established that the subjective satisfaction of the detaining authority as regards the factual existence of the condition on which the order of detention can be made namely the grounds of detention constitute the foundation for the exercise of the power of detention and the Court cannot be invited to consider the propriety or sufficiency of the grounds on which the satisfaction of the detaining authority is based
Nor can the Court on a review of the grounds substitute its own opinion for that of the authority
In the instant case the ground of detention is only one viz the detenu was acting prejudicial to the maintenance of supplies of commodity that is levy cement essential to the community by diverting it to the open market
The grounds of detention served along with the order are nothing but a narration of facts
The question whether the detenu was acting in a manner prejudicial to the maintenance of supplies essential to the life of the community is a matter of inference to be drawn from facts
The learned Advocate General was fair enough to accept before us that the applications for grant of anticipatory bail moved before the criminal Court were not placed before the detaining authority
Even so it could not be said that there was no material upon which the subjective satisfaction of the detaining authority could be based
It appears from the grounds ie the facts set out that the detenu had made a statement admitting that he had diverted 600 bags of levy cement issued to him for use in the masonry ballast wall along the railway track and therefore the District Magistrate was justified in coming to the conclusion that he the detenu was acting in a manner prejudicial to the maintenance of supplies of the commodity essential to the community
The three decisions in Asha Devi vs K 984 Shiveraj Addl
Chief Secretary to the Government of Gujarat and another   Mohd Shakeel Wahid Ahmed vs State of Maharashtra and others  and Kurjibhai Dhanjibhai Patel vs State of Gujarat were cases where there was failure on the part of the sponsoring authority in not furnishing the relevant material to the detaining authority which was a vitiating factor
This Court had occasion to deal with them in Pushpadevi M Jatia vs ML Wadhawan Additional Secretary Government of India and others  in para 12 of its judgment
These decisions proceed on the well settled principle that if material and vital facts  which would influence the mind of the detaining authority one way or the other on the question whether or not to make the detention order are not placed it would vitiate the subjective satisfaction rendering the detention order illegal
That is not so in the present case
There was ample material before the District Magistrate for him to base his subjective satisfaction as to the necessity for passing impugned order as stated by him in his affidavit
We do not find any merit in the case for quashing the impugned detention order and accordingly both the writ petition and the special leave application are dismissed
NVK Petition dismissed


Summary:
 The Ist respondent was working in the appellant company as an Internal Auditor on a monthly salary of Rs1186 60P per month
The appellant alleged that the respondent started absenting himself from 28th January 1978 and as such was not entitled to any salary for any period beyond the said date
The respondent was thereafter placed under suspension on 30th March 1978
On 4th May 1978 the respondent filed an application under section 33C2 of the claiming a total sum of Rs4746 40p on account of salary from Ist January 1978 to 30th April 1978
The appellant objected on the ground that the respondent was not a workman 
On 9th November 1978 there was an order dismissing the respondent from service
On 2nd January 1979 the respondent filed an application under section 28A of the Rajasthan Shops and Commercial Establishments Act 1958 which was dismissed on 31st July 1979 on the ground of limitation
On the 2nd August 1979 the Labour Court held that the respondent was doing clerical duties and as such was a workman  under the and he was entitled to Rs2060 98p as salary 986 from 9th March 1978 to 30th April 1978
There was also a reference under section 10 of the on 8th August 1960 arising out of the dismissal of the respondent
The appellant filed a writ petition challenging this order
All the aforesaid writ petitions were disposed of by a Single Judge of the High Court on 16th March 1982 holding that the respondent was not a workman 
Division Bench of the High Court however reversed the aforesaid judgment and held that the respondent was a workman 
The two writ petitions of the appellant were dismissed while the writ petition of the respondent was allowed
Aggrieved by the aforesaid orders the appellant appealed to this Court
On the questions 1 whether the respondent was a workman  or not within the definition of section 2s of the and 2 whether the or the Rajasthan Shops and Commercial Establishments Act 1958 would apply
Dismissing the appeals  HELD 1a Whether a person was performing supervisory or managerial work is a question of fact
One must therefore look into the main work and that must be found out from the main duties
A supervisor has to take some kind of decision on behalf of the company
One who was reporting merely as to the affairs of the company and making assessment for the purpose of reporting is not supervisor
992A B b There is no controversy in the instant case that the respondent is not employed in any managerial or administrative capacity
Distribution of work may easily be the work of a manager or an administrator but checking the work so distributed or keeping an eye over it is certainly supervision
A manager or administrator s work may easily include supervision but that does not mean that supervision is the only function of a manager or an administrator
Where there is a power of assigning duties and distribution of work there is supervision
990C991A B991D Mcleod and Co vs Sixth Industrial Tribunal West Bengal and others AIR 1958 Calcutta 273 All India Reserve Bank Employees Association vs Reserve Bank of India   Llyods Bank 987 Ltd vs Pannalal Gupta  Burmah Shell Oil Storage  Distribution Co
Of India
vs Burmah Shell Management Staff Association  Ors   The Punjab Co operative Bank Ltd vs RS Bhatia dead through Lrs  Maheshwari vs Delhi Administration Delton Cable India P Ltd  and Hind Construction and Engineering Company Ltd vs Their Workmen referred to
c A checker on behalf of the management or employer is not a supervisor
993E In the instant case the nature of duties performed by Respondent No 1 were mainly reporting and checking up on behalf of the management
A reporter or a checking clerk is not a supervisor
The respondent does not appear to be doing any kind of supervisory work
He was undoubtedly checking up on behalf of the employer but he had no independent right or authority to take decision and his decision did not bind the company
The Division Bench came to the conclusion that the respondent was a workman  within the meaning of section 2s of the taking into consideration the evidence recorded before the Labour Court that the respondent is a workman and not a supervisor
That conclusion on the appreciation of evidence cannot be interfered with under Article 136 of the Constitution
993A C 2a In order to raise the question of repugnancy two conditions must be fulfilled
The State law and the Union law must operate in the same field and one must be repugnant or inconsistent with the other
These are two cumulative conditions which are required to be fulfilled
995E Deep Chand vs The State of Uttar Pradesh and others 1959 Suppl
2 SCR 8 and Ms Hoechst Pharmaceuticals Ltd and others vs State of Bihar and others  at page 87 referred to
b In this case there is a good deal of justification to hold that these laws the and the Rajasthan Shops and Commercial Establishments Act 1985 tread on the same field and both laws deal with the rights of a dismissed workman or employee
But these two laws are not inconsistent or repugnant to each other
The basic test of repugnancy is that if one prevails the other cannot prevail
That is not the position in this case
995F G 988 c The application under section 28A of the Rajasthan Act was dismissed not on merits but on limitation
There is a period of limitation provided under the Rajasthan Act and it may be extended for reasonable cause
But there is no period of limitation as such provided under the 
Therefore that will be curtailment of the rights of the workmen or employees under the 
In that situation section 37 declares that law should not be construed to curtail any of the rights of the workmen
996A B d Social Welfare and labour welfare broadens from legislation to legislation in India
It will be a well settled principle of interpretation to proceed on that assumption and section 37 of the Rajasthan Act must be so construed
In no way the Rajasthan Act could be construed to curtail the rights of the workman to seek any relief or to go in for adjudication in case of the termination of the employment
996C e There is therefore no conflict between the and Rajasthan Shops and Commercial Establishments Act 1985 and there is no question of repugnancy
These two Acts are supplemental to each other
994G H 996D