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Appeal No 87 of 1958 Appeal by special leave from the Award dated October 10 1956 of the Industrial Tribunal Bihar Patna in Reference No 6 of 1956 R J Kolah section N Andley and Rameshwar Nath for the appellants B C Ghose and P K Chatterjee for the respondents 705 1959 September 11 The Judgment of the Court was delivered by section K DAS J This appeal by special leave from an award dated October 10 1956 made by the Industrial Tribunal Bihar raises an important question of interpretation in the matter of a disqualification for lay off compensation under section 25E read with section 25C of the hereinafter called the Act and so far as we know this is the first case of its kind in which the expression in another part of the establishment occurring in cl iii of section 25E has come up for an authoritative interpretation The facts are simple and are shortly set out below The Associated Cement Companies Ltd hereinafter called the Company have a number of cement factories in different States of the Indian Union as also in Pakistan There are two such factories in the State of Bihar one at Khelari and the other at a place called Jhinkpani in the district of Chaibasa in Bihar The latter factory is commonly known as the Chaibasa Cement Works There is a limestone quarry owned by the same Company situate about a mile and a half from the Chaibasa Cement Works the quarry being known as the Rajanka limestone quarry Limestone is the principal raw material for the manufacture of cement and the Chaibasa Cement Works depended exclusively for the supply of limestone on the said quarry At the time relevant to this appeal there were two classes of labourers at the quarry those employed by the Company through the management of the Chaibasa Cement Works and others who were engaged by a contractor There was one union known as the Chaibasa Cement Workers Union hereinafter called the Union of which the Company s labourers both at the Cement Works and the quarry were members There was another union consisting of the contractor s labourers which was known as the A C C Limestone Contractor s Mazdoor Union On January 3 1955 the Union made certain demands on the management on behalf of the labourers in the limestone quarry but these were rejected by the management Then by a subsequent letter dated February 18 706 1955 the General Secretary of the Union gave a notice to the Manager of the Chaibasa Cement Works to the effect that the Union proposed to organise a general stay in strike in the limestone quarry from March 1 1955 if certain demands details whereof are unnecessary for our purpose were not granted on or before February 281955 A similar notice was also given on behalf of the ACC Limestone Contractor s Mazdoor Union These notices led to certain efforts at conciliation which however failed On February 24 1955 the management gave a notice to all employees of the Chaibasa Cement Works in which it was stated that in the event of the strike materialising in the limestone quarry it would be necessary for the management to close down certain sections of the factory at Jhinkpani on account of the non supply of limestone the notice further stated that in the event of such closure it would be necessary to lay off the workers not required during the period of closure for the sections concerned The strike commenced on March 1 1955 and lasted till July 4 1955 On March 25 1955 the management wrote to the General Secretary of the Union intimating to him that the workers in certain departments referred to in an earlier letter dated March 19 1955 would be laid off with effect from April 1 1955 On March 28 1955 the management gave the lists of employees who were to be laid off with effect from April 1 1955 and they were actually laid off from that date During the period of the strike fresh efforts at conciliation were made and ultimately the strike came to an end on July 5 1955 when the Central Government referred the dispute between the management and the workers of the limestone quarry to the Central Industrial Tribunal at Dhanbad This reference was however withdrawn by mutual consent in terms of a settlement arrived at on December 7 1955 The details of this settlement are not relevant to this appeal Thereafter a demand was made by the Union for payment of lay off compensation to those workers of Chaibasa Cement Works who had been laid off for the period April 1 1955 to July 4 1955 This demand 707 was refused by the management This gave rise to an industrial dispute which was referred by the Government of Bihar under section 10 of the Act to the Industrial Tribunal Bihar The terms of reference set out the dispute in the following words Whether the workmen of the Chaibasa Cement Works are entitled to compensation for lay off for the period from April 1 1955 to July 4 1955 The parties filed written statements before the Industrial Tribunal and the only witness examined in the case was Mr Dongray Manager of the Chaibasa Cement Works Jhinkpani At this point it is necessary to read the two sections of the Act which relate to the right of workmen to lay off compensation and the circumstances in which they are disqualified for the same The right is given by section 25C and the disqualification is stated in three clauses of section 25E of which the third clause only is important for our purpose We now proceed to read sections 25C and 25E so far as they are material for our purpose section 25C 1 Whenever a workman other than a badli workman or a casual workman whose name is borne on the muster rolls of an industrial establishment and who has completed not less than one year of continuous service under an employer is laid off he shall be paid by the employer for alldays during which he is so laid off except for such weekly holidays as may intervene compensation which shall be equal to fifty per cent of the total of the basic wages and dearness allowance that would have been payable to him had he not been so laid off section 25E No compensation shall be paid to a workman who has been laid off i ii iii if such laying off is due to a strike or slowing down of production on the part of workmen in another part of the establishment 708 Now the central point round which the controversy between the parties has raged is this Was the lay off of the workers in certain sections of the Chaibasa Cement Works due to a strike on the part of workmen in another part of the establishment within the meaning of cl iii of section 25E In other words was the limestone quarry at Rajanka part of the establishment known as the Chaibasa Cement Works The contention of the management was and is that the Cement Works and the limestone quarry form one establishment within the meaning of cl iii aforesaid The contention on behalf of the workmen is that they are not parts of one establishment but are separate establishments The learned Chairman of the Industrial Tribunal held for reasons which we shall presently discuss that the limestone quarry was not part of the establishment known as the Chaibasa Cement Works and the workmen in the latter were not disentitled to lay off compensation by reason of cl iii of section 25E The correctness of this view is the principal point for decision in this appeal On behalf of the respondent workmen it has been contended that the conclusion of the Industrial Tribunal that the factory at Jhinkpani and the limestone quarry at Rajanka are not parts of one establishment is a finding of fact and this appeal should be disposed of on that footing We do not think that this contention is correct and we shall presently deal with it We propose however to examine first the relation between the limestone quarry at Rajanka and the cement factory at Jhinkpani in the light of the evidence given before the Tribunal and the findings arrived at by it because they will show the process of reasoning by which the Tribunal came to its final conclusion The evidence was really one sided and the only witness examined was Mr Dongray Manager of the Chaibasa Cement Works Now the relation between the limestone quarry and the factory can be considered from several points of view such as 1 ownership 2 control and supervision 3 finance 4 management and employment 5 geographical proximity and 6 general unity of purpose and functional integrality 709 with particular reference to the industrial process of making cement On all that above points Mr Dongray gave evidence It was not disputed that the Company owned the limestone quarry as also the factory and there was unity of ownership Mr Dongray s evidence further showed that there was unity of control management and employment He said that the limestone quarry was treated as a part and parcel of the Chaibasa Cement Works that is as a department thereof and he as the Manager was in overall charge of both though there was a Quarry Manager in charge as a departmental head under him On this point Mr Dongray said There is a Manager appointed for the quarries The Manager is working under me The Cement Works itself has about eight or nine departments under it There are heads of each department The Manager of the quarry has the same status as the heads of other departments at the Cement Works This was supported by a circular letter dated March 11 1952 which said that the entire factory and the associated quarries were under the sole control of the Manager who was responsible for maintaining full output at economic cost up to the expected standard The circular letter further stated that all orders and contracts were to be issued by the Manager for the working of the factory and quarries and the relevant bills were to be passed by him As to finance and conditions of employment Mr Dongray said All requirements of the quarry are sent by the Manager there to the office of the Cement Works and if they are available in the Cement Works Stores they are issued from there otherwise I indent them from the Bombay office or purchase them locally There is no account office in the quarries and their account is maintained in the Cement Works Office I as Manager of the Chaibasa Cement Works make payment for the indents or requirements of the quarries stated above The quarry has no separate banking account The Quarry Manager is not entitled to operate banking account apart from myself At the quarries there are daily rated workers and monthly paid staff 90 710 To the daily paid workers in the quarries the cashier of the Cement Works or his Assistant makes payment when required The monthly paid staff of the quarries come to the Cement Office for receiving payment In the Cement Works we have got a system of allocation of work for different jobs every day It is done by the Departmental Heads Same system prevails in the quarries also The Quarry Manager does the distribution as head of that department Attendance Register is maintained at the quarry in the same way as it is done in the different departments of the Cement Works There is only one common pay sheet for all the monthly paid staff whether he is at the factory or in the quarries For the daily rated workers we have got different sheets department wise and there is one such sheet for the daily workers of the quarry as well There is one summary sheet of the payment showing the payment of all the departments including the payment in the quarries as well I have to send statutory intimation to the authorities under the Mines Act regarding the quarries for working faces and other accidents etc The staff and workers working in the quarries are transferable to the Cement Works according to the exigencies of the work and also vice versa There have been a few instances of such transfers The terms and conditions of service for instance T A leave provident fund gratuity etc are same for workers in the Cement Works as also the workers in the quarries We got the application of the statutory provident fund rules extended to our department in the quarries also The report of the working of the quarry comes to me from the Manager there from time to time I as Manager of the Cement Marks make payments of royalties in in respect of limestones raised from the quarries Payments for compensation maternity benefits accidents etc in the quarry are made under my authority by the factory office and not by the Quarry Manager Exhibits 1 to 26 filed on behalf of the management which showed the working of the quarry and the 711 factory supported the aforesaid evidence of Mr Dongray they showed as has been observed by the Tribunal itself that the management was maintaining one common account and the final authority on the spot in respect of the quarry as also in respect of other departments of the factory was Mr Dongray the Manager There were also other documents to show that the transfer of members of the staff from the quarry to the factory and vice versa was made by Mr Dongray according to the exigencies of service It is worthy of note here that the Union itself gave notice to the Manager of the factory with regard to the intended strike in the limestone quarry The geographical proximity of the limestone quarry was never in dispute It was adjacent to the factory being situate within a radius of about a mile As to general unity of purpose and functional integrality this was also not seriouly in dispute Mr Dongray said that limestone was the principal raw material for the manufacture of cement and the cement factory at Jhinkpani depended exclusively on the supply of limestone from the quarry at Rajanka His evidence no doubt disclosed that some excess limestone was sent to the factory at Khelari as well On this point Mr Dongray said Limestone from this quarry is at times sent to the Khelari Cement Works but that is very rare and in small quantity It is done only in cases of emergency Mr Dongray explained that the normal number of departmental workers in the quarry before the strike was in the neighbourhood of 250 but there were about 1000 workers employed by contractors The number of daily rated workers was in the neighbourhood of 950 and the total monthly paid staff varied from 100 to 105 The wages paid to the workers in the quarry were debited to limestone account of the Cement Works and in the matter of costing the amount spent on limestone was also debited The bank accounts however were in the name of the Company and the persons who were entitled to operate on those accounts were Mr Dongray the Manager the Chief Engineer and the Chief Chemist of the Cement Works 712 All the aforesaid evidence oral and documentary was apparently accepted by the Tribunal as correct for the learned Chairman summarised the evidence of Mr Dongray without any serious adverse comment He then referred to certain contentions urged on behalf of the Union which he said were not without force We may now state those contentions The first contention was that under the provisions of the Act the appropriate authority in respect of the factory at Jhinkpani was the State Government of Bihar whereas the appropriate authority in respect of the limestone quarry which was a mine as defined in the was the Central Government The second con tention was that there were two sets of Standing Orders one for the workmen of the factory and the other for the workmen in the limestone quarry The third contention was that the limestone quarry had an office of its own and a separate attendance register and the fourth contention was that under the provisions of the Mr Dongray was an Agent in respect of the limestone quarry and there was a separate Manager who was responsible for the control management and direction of the mine under the provisions of section 17 thereof The learned Chairman referred to certain criticisms made in respect of the evidence of Mr Dongray One criticism was that though the Company was the owner of both the factory and the limestone quarry it had also factories and limestone quarries at other places in India and Pakistan and if the test of one ownership were the determining test then all the factories and limestone quarries of the Company wherever situtate would be one establishment This criticism was not however pertinent because the Company never claimed that all its factories in different parts of India and Pakistan formed one establishment by reason of unity of ownership only The other criticism was that Mr Dongray admitted that if necessary in the interest of service the workmen at the Chaibasa Cement Works could be transferred to some other factory of the Company and therefore transferability was not a sure test This criticism was also not germane because the Company 713 never claimed that transferability was the only sure test A third criticism also advanced on behalf of the workmen was that Mr Dongray admitted that all the accounts of the different factories and limestone quarries of the Company were ultimately consolidated into one Profit and Loss Account a criticism which in our view was equally not pertinent to the question at issue The learned Chairman then expressed his final finding in the following words From these and other admissions made by Mr Dongray it would appear that it is only for economy and convenience that he was given charge of the control of both the concerns but his capacity was dual While he was controlling the Cement Works as it Works Manager he had the control of the quarries as its Agent under the It has also to be noted that if both these establishments which are inherently different by their very nature are treated as one and the same anomalous position may arise in dealing with the employees in the quarries in matters of misconduct and such other things if there is a pendency of a dispute in the Cement Works and vice versa Obviously the employees of the Cement Works have to be dealt with by the State Tribunal while the employees of the quarries by the Central Tribunal This also nullifies the force of the management s contention that both are parts of the same establishment Considering these it has to be held that the contention of the management fails and that of the Union must prevail We now revert to the contention urged on behalf of the respondent that this appeal should be disposed of on the footing that the final conclusion of the Industrial Tribunal is a finding of fact The judgment of the Tribunal itself shows that the final conclusion was arrived at by a process of reasoning which involved a consideration of several provisions of the Act and some provisions of the The Tribunal accepted a major portion if not all of the evidence of Mr Dongray but it felt compelled to hold against the appellant despite that evidence by reason of an 714 anomalous position which it thought would arise if the factory and the quarry were held to be one establishment The question before the Tribunal and this is also the question before us was the true scope and effect of cl iii of section 25E of the Act with particular reference to the expression in another part of the establishment occurring therein That question was not a pure question of fact as it involved a consideration of the tests which should be applied in determining whether a particular unit is part of a bigger establishment Indeed it is true that for the application of the tests certain preliminary facts must be found but the final conclusion to be drawn therefrom is not a mere question of fact Learned counsel for the respondent is not therefore justified in asking us to adopt the short cut of disposing of the appeal on the footing that a finding of fact should not be disturbed in an appeal by special leave In this case we cannot relieve ourselves of the task of determining the true scope and effect of cl iii of section 25E by adopting the short cut suggested by learned counsel We proceed now to consider what should be the proper tests in determining what is meant by one establishment Learned counsel for the respondent has suggested that the test has been laid down by the Legislature itself in the Explanation to section 25A of the Act That Explanation states In this section and in sections 25C 25D and 25E industrial establishment means i a factory as defined in clause m of section 2 of the or ii a mine as defined in clause j of section 2 of the or iii a plantation as defined in clause f of section 2 of the The argument is that the Explanation states in clear terms what an industrial establishment means in certain sections of the Act including section 25E and on a proper construction it negatives the idea of a factory and a mineforming parts of one establishment Curiously enough section 25E does not contain the 715 expression industrial establishment It uses the word establishment only We agree however that if section 25E is read with section 25C and the definition of layoff in section 2 kkk of the Act as it must be read the word establishment in section 25E has reference to an industrial establishment On the footing that the word establishment in section 25E means an industrial establishment what then is the effect of the Explanation The contention of the respondent is that an industrial establishment may be either a factory as defined in clause m of section 2 of the or a mine as defined in cl j of section 2 of the or a plantation as defined in cl f of section 2 of the but it cannot be a combination of any two of the aforesaid categories therefore a factory and a mine together as in the present case cannot form one establishment This argument proceeds on the assumption that the Explanation while stating what undertakings or enterprises come within the expression industrial establishment necessarily lays down the test of one establishment also We do not think that there is any warrant for this assumption The Explanation only gives the meaning of the expression industrial establishment for certain sections of the Act it does not purport to lay down any test as to what constitutes one establishment Let us take for example a factory which has different departments in which manufacturing processes are carried on with the aid of power Each department if it employs ten or more workmen is a factory within the meaning of cl m of section 2 of the so is the entire factory where 1000 workmen may be employed The Explanation merely states that an undertaking of the nature of a factory as defined in cl m of section 2 of the is an industrial establishment It has no bearing on the question if in the example taken the factory as a whole or each department thereof should be treated as one establishment That question must be determined on other considerations because the Explanation does not deal with the question of one establishment In our view the true scope and effect 716 of the Explanation is that it explains what categories factory mine or plantation come within the meaning of the expression industrial establishment it does not deal with the question as to what constitutes one establishment and lays down no tests for determining that question We cannot therefore accept the argument of learned counsel for the respondent that a factory and a mine a mine which supplies the raw material to the factory can never be one establishment under the Act that we do not think is the effect of the Explanation to section 25A The Act not having prescribed any specific tests for determining what is one establishment we must fall back on such considerations as in the ordinary industrial or business sense determine the unity of an industrial establishment having regard no doubt to the scheme and object of the Act and other relevant provisions of the or the What then is one establishment in the ordinary industrial or business sense The question of unity or oneness presents difficulties when the industrial establishment consists of parts units departments branches etc If it is strictly unitary in the sense of having one location and one unit only there is little difficulty in saying that it is one establishment Where however the industrial undertaking has parts branches departments units etc with different locations near or distant the question arises what tests should be applied for determining what constitutes one establishment Several tests were referred to in the course of arguments before us such as geographical proximity unity of ownership management and control unity of employment and conditions of service functional integrality general unity of purpose etc To most of these we have referred while summarising the evidence of Mr Dongray and the findings of the Tribunal thereon It is perhaps impossible to lay down any one test as an absolute and invariable test for all cases The real purpose of these tests is to find out the true relation between the parts branches units etc If in their true relation they constitute one integrated whole we say 717 that the establishment is one if on the contrary they do not constitute one integrated whole each unit is then a separate unit How the relation between the units will be judged must depend on the facts proved having regard to the scheme and object of the statute which gives the right of unemployment compensation and also prescribes disqualification therefor Thus in one case the unity of ownership management and control may be the important test in another case functional integrality or general unity may be the important test and in still another case the important test may be the unity of employment Indeed in a large number of cases several tests may fall for con sideration at the same time The difficulty of applying these tests arises because of the complexities of modern industrial organisation many enterprises may have functional integrality between factories which are separately owned some may be integrated in part with units or factories having the same ownership and in part with factories or plants which are independently owned In the midst of all these complexities it may be difficult to discover the real thread of unity In an American decision Donald L Nordling vs Ford Motor Company 1 there is an example of an industrial product consisting of 3800 or 4000 parts about 900 of which came out of one plant some came from other plants owned by the same Company and still others came from plants independently owned and a shutdown caused by a strike or other labour dispute at any one of the plants might conceivably cause a closure of the main plant or factory Fortunately for us such complexities do not present themselves in the case under our consideration We do not say that it is usual in industrial practice to have one establishment consisting of a factory and a mine but we have to remember the special facts of this case where the adjacent limestone quarry supplies the raw material almost exclusively to the factory the quarry is indeed a feeder of the factory and without limestone from the quarry the factory cannot function Ours is a case where all the tests are fulfilled 1 272 91 718 as shown from the evidence given on behalf of the appellant to which we have earlier referred There are unity of ownership unity of management supervision and control unity of finance and employment unity of labour and conditions of service of workmen functional integrality general unity of purpose and geographical proximity We shall presently deal with the legal difficulties at which the Tribunal has hinted and which have been elaborated by learned counsel for the respondent But apart from them the only fair conclusion from the facts proved in the case is that the Chaibasa Cement Works consisting of the factory and the limestone quarry form one establishment The existence of two sets of Standing Orders and a separate attendance register for the limestone quarry have already been adverted to They have been sufficiently explained by Mr Dongray particularly the existence of two sets of Standing Orders by reason of the statutory requirement of approval by different authorities one set by the Labour Commissioner Bihar and other by the relevant Central authority We proceed now to consider the legal difficulties which according to learned counsel for the respondent stand in the way of treating the limestone quarry and the factory as one establishment The Tribunal has merely hinted at these difficulties by saying that an anomalous position will arise if the quarry and the factory are treated as one establishment It is necessary to refer briefly to the scheme and object of lay off compensation and the disqualifications therefor as envisaged by the relevant provisions in Chapter VA of the Act That chapter was inserted by the Industrial Disputes Amendment Act 1953 43 of 1953 which came into effect from October 24 1953 The right of workmen to lay off compensation is obviously designed to relieve the hardship caused by unemployment due to no fault of the employee involuntary unemployment also causes dislocation of trade and may result in general economic insecurity Therefore the right is based on grounds of humane public policy and the statute which gives such right should be 719 liberally construed and when there are disqualifying provisions the latter should be construed strictly with reference to the words used therein Now section 25 gives the right and there are three disqualifying clauses in section 25E They show that the basis of the right to unemployment compensation is that the unemployment is involuntary in other words due to no fault of the employees themselves that is why no unemployment compensation is payable when suitable alternative employment is offered and the workman refuses to accept it as in cl 1 of section 25E or the work man does not present himself for work at the establishment as in cl ii or when the laying off is due to the strike or slowing down of production on the part of workmen in another part of the establishment as in cl iii Obviously the last clause treats the work men in one establishment as one class and a strike of slow down by some resulting in the laying off of other workmen disqualifies the workmen laid off from claiming unemployment compensation the reason being that the unemployment is not really involuntary It is against this background of the scheme and object of the relevant provisions of the Act that were must now consider the legal difficulties alleged by the respondent The first difficulty is said to arise out of section 17 of the That section says in effect that every mine shall be under a Manager having prescribed qualifications who shall be responsible for the control management and direction of the mine it is then pointed out that the word agent in relation to a mine means a person who acts as the representative of the owner in respect of the management of the mine and who is superior to a Manager The argument is that the limestone quarry at Rajanka had a Manager under the and Mr Dongray acted as the agent that is representative of the owner viz the Company and this arrangement which was in consonance with the provisions of the it is argued made the factory and the quarry two separate establishments We are unable to accept this argument as correct We do not think that section 17 of the has any relevance 720 to the question whether the limestone quarry was part of a bigger establishment It prescribes the appointment of a Manager for purposes of the and does not deal with the question of one establishment within the meaning of cl iii of section 25E of the Act The fact that the quarry Manager worked under the overall control and supervision of Mr Dongray showed on the facts proved in this case just the contrary of what learned counsel for the respondent has contended it showed that the factory and the quarry were treated as one establishment The second difficulty is said to arise out of certain provisions of the Act which relate to the constitution of Boards of Conciliation Courts of Inquiry Labour Courts and Tribunals and the reference of industrial disputes to these bodies for settlement inquiry or adjudication The scheme of the Act is that except in the case of National Tribunals which are appointed by the Central Government the appropriate Government makes the appointment of Boards of Conciliation Courts of Inquiry Labour Courts and Tribunals and it is the appropriate Government which makes the refer ence under section 10 of the Act Now the expression appropriate Government is defined in section 2a of the Act So far as it is relevant for our purpose it means the Central Government in relation to the limestone quarry at Rajanka and the State Government of Bihar in relation to the factory at Jhinkpani We had stated earlier in this judgment that in this very case the original dispute between the management and the workmen in the limestone quarry was referred to the Central Tribunal at Dhanbad while the latter dispute about lay off compensation to workmen of the factory was referred by the Government of Bihar to the Industrial Tribunal at Patna The argument before us is that when the statute itself brings the two units factory and mine under different authorities they cannot be treated as one establishment for the purposes of the same statute Our attention has also been drawn to section 183 of the Act under which in certain circumstances a settlement arrived at in the course of conciliation proceedings under the Act or an award of 721 a Labour Court or Tribunal is made binding on 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 It is contended that it will be difficult to apply section 183 if the factory and the limestone quarry are treated as one establishment Lastly learned counsel for the respondent has referred us to section 33 of the Act Sub section 1 of that section in substance lays down that during the pendency of any conciliation proceedings or of any proceeding before a Labour Court or Tribunal in respect of any industrial dispute no employer shall alter the conditions of service to the prejudice of workmen or punish any workmen save with the permission in writing of the authority before which the proceeding is pending Sub sections 2 and 3 we need not reproduce because for the purposes of this _ appeal the argument is the same which is that if a proceeding is pending before a Central Tribunal say in respect of the limestone quarry there will be difficulty in applying the provisions of section 33 in respect of workmen in the factory over which the Central Tribunal will have no jurisdiction The Industrial Tribunal did not specifically refer to these provisions but perhaps had them in mind when it said that an anomalous position would arise if the factory and the quarry were treated as one establishment We have given our most earnest consideration to these arguments but are unable to hold that they should prevail It is indeed true that in the matter of constitution of Boards of Conciliation Courts of Inquiry Labour Courts and Tribunals and also in the matter of reference of industrial disputes to them and perhaps for certain other limited purposes the Act gives jurisdiction to two distinct authorities the Central Government in respect of the limestone quarry and the State Government in respect of the factory The short question is does this duality of jurisdiction dichotomy one may call it necessarily imply that for all purposes of the Act and particularly for 722 payment of unemployment compensation as per the provisions in Ch VA the factory and the quarry must be treated as separate establishments We are unable to find any such necessary implication There is no provision in the Act which says that the existence of two jurisdictions has the consequence contended for by learned counsel for the respondent nor do we find anything in the provisions creating two jurisdictions which by reason of the principle underlying them or by their very nature give rise to an implication in law that the existence of two jurisdictions means the existence of two separate establishments On the contrary such an implication or inference will be at variance with the scheme and object of unemployment compensation as provided for by the provisions in Ch VA of the Act We have pointed out earlier that the object of unemployment compensation is to relieve hardship caused by involuntary unemployment that is unemployment not due to any fault of the employees If in the ordinary business sense the industrial establishment is one a lay off of some of the workmen in that establishment as a result of a strike by some other workmen in the same establishment cannot be characterised as involuntary unemployment To hold that such an establishment must be divided into two separate parts by reason of the existence of two jurisdictions is to import an artificiality for which we think there is no justification in the provisions of the Act Nor do we think that sections 183 and 33 present any real difficulty Section 183 clearly contemplates a settlement or an award which is binding on a part of the establishment It says so in express terms If therefore in the case before us there is a settlement or award in respect of the limestone quarry it will be binding in the circumstances mentioned in the subsection on the workmen in that part of the establishment which is the limestone quarry Similarly a settlement or award in respect of the factory will be binding on the workmen of the factory Section 33 as far as it is relevant for the argument now under consideration is in two parts Sub section 1 relates 723 to a matter connected with the dispute in respect of which a proceeding is pending Sub section 2 relates to a matter not connected with the dispute in respect of which the proceeding is pending In one case permission of the authority before which the proceeding is pending has to be obtained for punishing etc in the other case an application for approval of the action taken by the employer has to be made We see no difficulty in applying section 33 in a case like the one before us For workmen in the mine the authority will be the one appointed by the Central Government for the factory the authority will be that appointed by the State Government This is the same argument as the argument of two jurisdictions in another form The assumption is that there cannot be two jurisdic tions for two parts of one establishment This argument is valid if the assumption is correct If however there is no warrant for the assumption as we have held there is none then the argument has no legs to stand upon So far we have dealt with the case irrespective of and apart from reported decisions because there is no decision which really covers the point in controversy before us Learned counsel for the appellant has referred to the decisions in Hoyle vs Cram 1 and Coles vs Dickinson 2 The question in the first case was if the appellants there were liable to be convicted of an offence against the Bleaching Works Act 23 and 24 Vict c 78 in employing the child without a school master s certificate It was held that a child employed on the premises where the bleaching dyeing and finishing were performed was employed in an incidental printing process within the second section of 8 and 9 Vict c 29 and that the place where he was so employed formed part of the establishment where the chief process of printing was carried on within the meaning of that Act The decision proceeded mainly on the words of the statute but Earle CJ said It appears that the works at Mayfield having some years ago become inadequate by reason of the 1 2 724 increase of the business and by the detorioration and deficiency of the water of the river Medlock the appellants transferred part of their works to Sandy Vale but that the principal part of the work continued to be carried on at Mayfield which was the principal seat of the firm In a commercial sense therefore Sandy Vale clearly was part of one entire establishment It was contended for the respondent that the statute did not mean forming part in a commercial sense but in a popular and local sense But I see no reason for confining the meaning to local proximity The whole substantially forms one establishment In the second case the question was this by the 73rd section of 7 and 8 Vict c 15 premises which are used solely for the manufacture of paper were excluded from the operation of the Factory Acts there were two mills one at Manchester and the other in Hertfordshire The Manchester mill prepared what was called half stuff which was sent to the mill in Hertfordshire to be manufactured into paper and the question was if the Manchester mill was exempted from the operation of the Factory Acts The answer given was in the affirmative It was stated that each step in the process was a step in the manufacture of paper and the distance between the two places where the several parts were carried on was wholly immaterial in view of the words of the statute The last decision to which our attention has been drawn is the American decision in Donald L Nordling vs Ford Motor Company 1 This decision is perhaps more in point as it related to unemployment compensatiOn The statute in that case provided that an individual losing his employment because of a strike or other labour dispute should be disqualified during its process at the establishment in which he is or was employed The claimants there had been employed at a Minnesota automobile assembly plant which was partially shut down because of a lack of parts due to a strike at a manufacturing plant owned and operated by the same corporation in Michigan The Minnesota Supreme Court to which an application was made for 1 272 725 a certiorari to review a decision of the director of the division of employment and security reviewed the tests which have generally been applied for determining what is meant by the term establishment within the meaning of the statute concerned it pointed out that there was no uniformity of decision on the question and it was not possible to lay down an absolute or invariable test The decision was based on the broader ground that the tests of functional integrality general unity and physical proximity should all be taken into consideration in determining the ultimate question of whether a factory plant or unit of a larger industry is a separate establishment within the meaning of the employment and security law The test which was emphasized in that case was the test of the unity of employment and on that footing it was found that the evidence was ample to support the director s finding that the Minnesota plant was a separate establishment We do not think that these decisions carry the matter any further than what we have explained in earlier paragraphs of this judgment We must have regard to the provisions of the statute under which the question falls to be considered if the statute itself says what is one establishment then there is no difficulty If the statute does not however say what constitutes one establishment then the usual tests have to be applied to determine the true relation between the parts branches etc namely whether they constitute one integrated whole or not No particular test can be adopted as an absolute test in all cases of this type and the word establishment is not to be given the sweeping definition of one organisation of which it is capable but rather is to be construed in the ordinary business or commercial sense For the reasons which we have already given we are of the view that the learned Chairman of the Industrial Tribunal wrongly held that the limestone quarry at Rajanka and the factory at Jhinkpani were separate establishments In our view they constituted one establishment within the meaning of cl iii of 92 726 s25E of the Act It was conceded on behalf the respondent workmen that the lay off in the factory was due to the non supply of limestone by reason of the strike in the limestone quarry and the strike was decided on by the same Union which consisted of the workmen at the factory and the quarry That being the position the disqualification in cl iii aforesaid clearly applied and the workmen at the factory were not entitled to claim lay off compensation The result therefore is that the appeal succeeds and is allowed and the award of the Industrial Tribunal is set aside In the circumstances of the case in which a difficult question of interpretation arose for decision for the first time we pass no order as to costs Appeal allowed

The Saurashtra State Public Safety Measures Ordinance 1948 was passed to provide for public safety maintenance of public order and preservation of peace and tranquillity in the State of Saurashtra As crimes involving violence such as dacoity and murder were increasing this Ordinance was amended by the Saurashtra State Public Safety Measures Third Amendment Ordinance 1949 which by secs 9 10 and 11 empowered the State Government by notification in the official gazette to constitute Special Courts of criminal Jurisdiction for such area as may be specified in the noti fication to appoint Special Judges to preside over such Courts and to invest them with jurisdiction to try such offences or classes of offences or such eases or classes of cases as the Government may by general or special order in writing direct The procedure laid down by 436 the Ordinance for trial before such Courts varied from the normal procedure prescribed by the Criminal Procedure Code in two material respects viz there was no provision for trial by jury or with the aid of assessors or for enquiry before commitment to sessions In exercise of the powers conferred by this Ordinance the Government by a notifica tion constituted a Special Court for certain areas and empowered that Court to try offences under sees 183 189 302 304 307 392 and certain other sections of the Indian Penal Code which were specified in the notification It was contended on behalf of the appellant who had been convicted by the Special Court under secs 302 307 and 392 of the Indian Penal Code read with sec 34 that the Ordi nance of 1949 and the notification above mentioned contra vened article 14 of the Constitution and were therefore ultra vires and void Held per PATANJALI SASTRI CJ FAZL ALI MUKHERJEA and DAS JJ MEHR CHAND MAHAJAN CHANDRASEKHARA AIYAR and Bose JJ dissenting That the impugned Ordinance in so far as it authorised the State Government to direct offences or class es of offences or classes of cases to be tried by the Spe cial Court did not contravene the provisions of article 14 and was not ultra vires or void The notification issued under the Ordinance was also not void PATANJALI SASTRI CJ All legislative differentation is not necessarily discriminatory Discrimination involves an element of unfavourable bias and it is in that sense that the expression has to be understood in the context Equal protection claims under article 14 are examined with the presumption that the State action is reasonable and justi fied Though differing procedures might involve disparity in treatment of persons tried under them such disparity is not in itself sufficient to outweigh this presumption and establish discrimation unless the degree of disparity goes beyond what the reason for its existence demands eg when it amounts to a denial of a fair and impartial trial The impugned Ordinance having been passed to combat the increas ing tempo of certain types of regional crime the two fold classification on the lines of type and territory adopted by the said Ordinance read with the notification issued there under was reasonable and the degree of disparity of treat ment involved was in no way in excess of what the situation demanded While on the one hand it cannot be said that any variation of procedure which operates materially to the disadvantage of the accused is discriminatory and violates article 14 the other extreme view that article 14 provides no further constitutional protection to personal liberty than what is afforded by article 21 is also wrong FAZL ALI J A distinction must be drawn between dis crimination without reason and discrimination with reason 437 The whole doctrine of classification is based on this dis tinction and on the well known fact that the circumstances which govern one set of persons or objects may not neces sarily be the same as those governing another set of persons or objects so that the question of unequal treatment does not really arise as between persons governed by different conditions and different sets of circumstances The clear recital of a definite objective in the earlier Ordinance and the impugned Ordinance which amended it furnished a tangi ble and rational basis of classification and the Ordinance and the notification did not violate article 14 The Legisla ture should however have recourse to legislation like this only in very special circumstances MUKHERJEA J Where the legislative policy is clear and definite and as an effective method of carrying out that policy a discretion is vested by the statute upon a body of administrators or officers to make selective application of the law to certain classes or groups of persons the statute itself cannot be condemned as a piece of discriminatory legislation In such cases the power given to the execu tive body would import a duty on it to classify the subject matter of legislation in accordance with the objective indicated in the statute If the administrative body pro ceeds to classify persons or things on a basis which has no rational relation to the objective of the legislature its action can certainly be annulled as offending against the equal protection clause The preamble of the main Ordinance IX of 1948 taken along with the surrounding circumstances disclosed a defi nite legislative policy and objective and the impugned Ordinance cannot therefore be held to be unconstitutional merely because it vested in the Government the authority to constitute Special Courts and to specify the classes ofoffences to be tried by such courts with a view to achieve that objective The notification issued by the Government was also not void as it did not proceed on any unreasonable or arbitrary basis but on the other hand there was a reasonable relation between the classification made by the notification and the objective that the legislation had in view Though it is a sound and reasonable proposition that when the nature of two offences is intrinsically the same and they are punishable in the same manner a person accused of one should not be treated differently from a person accused of the other yet in determining the reach and scope of a particular legislation it is not necessary for the legislature to provide abstract symmetry A too rigid insistence on anything like scientific classification is neither practicable nor desirable DAS J The relevant part of sec 11 properly construed and understood does not confer an uncontrolled and unguided power on the State Government on the contrary the power is controlled by the necessity of making a proper classifi cation 438 which is to be guided by the preamble in the sense that the classification must have a rational relation to the object of the Ordinance as recited in the preamble The classifica tion effected by the impugned Ordinance and the notification thus satisfied the two conditions necessary for a valid classification viz that it must not be arbitrary but must be rounded on an intelligible differentia and that differ entia must have a rational relation to the object sought to be achieved by the Act The Ordinance and the notification did not therefore contravene article 14 of the Constitution MAHAJAN J Section 11 of the Ordinance suggests no reasonable basis for classification either in respect of offences or in respect of cases nor has it laid down any measure for the grouping either of persons or of cases or of offences by which measure these groups could be distin guished from those outside the purview of the Ordinance The words used in the preamble to the main Ordinance and the fact that sec 9 of the impugned Ordinance provides that the power can be exercised for any particular area cannot limit the plain and unambiguous language of sec 11 and the said section is therefore unconstitutional CHANDRASEKHARA AIYAR J Sections 9 and 11 do not lay down any classification The preamble to the earlier Ordi nance also indicates no classification as the object stated there is a general one which has to be kept in view by every enlightened Government or system of administration The classification adopted in the notification also is not a rational one BOSE J The differentiation effected by the impugned Ordinance and the notification issued thereunder travels beyond bounds which are legitimate and the Ordinance there fore offends article 14 and is invalid Held also per curiam that the Ordinance was not in valid on the ground that it involved delegation of legisla tive powers The State of West Bengal vs Anwar Ali Sarkar 1952 SCR 284 In re etc 1951 SCR 7471 and King Emperor vs Benoarilal Sarma 72 IA 57 referred to

minal Appeal No 185 of 1957 Appeal by special leave from the judgment and order dated the 6th December 1955 of the Punjab High Court Circuit Bench at Delhi in Criminal Revision No 122 D of 1955 arising out of the judgment and order dated July 29 1955 of the First Additional Sessions Judge Delhi in Cr A No 36755 Mohan Behari Lal and Eluri Udayarathnam for the appellant N section Bindra and R H Dhebar for the respondent September 15 The Judgment of the Court was delivered by SUBBA RAO J This appeal by special leave is directed against the order of the High Court of Punjab Circuit Bench Delhi confirming the conviction of the appellant and the sentence passed on him by the 757 Magistrate First Class Delhi under section 61 A of the XVII of 1933 hereinafter called the Act Jethanand the appellant herein was prosecuted along with another in the Court of the Magistrate First Class Delhi under section 61 A of the Act for possessing a wireless transmitter in contravention of the provisions of section 3 of the Act and was sentenced to six months rigorous imprisonment On appeal the learned First Additional Sessions Judge Delhi upheld the conviction but reduced the sentence to the period of imprisonment already undergone plus a fine of Rs 500 On revision the High Court confirmed both the conviction and the sentence On an application filed for special leave this Court gave the same but limited it to the question of sentence Learned Counsel raised before us the following contentions 1 section 61 A of the Act was repealed and therefore neither the conviction nor the sentence thereunder could be sustained and 2 if section 61 A of the Act was repealed this Court in limiting the appeal to the question of sentence only went wrong for if that section was not on the statute book at the time of the alleged commission of the offence not only the sentence but also the conviction thereunder would be bad Both the contentions raised turn upon the same point The different steps in the argument may be stated thus In the Act XVII of 1933 as it originally stood there was no specific provision making the possession of wireless transmitter an offence By the Indian Wireless Telegraphy Amendment Act 1949 XXXI of 1949 hereinafter called the 1949 Act section 61 A was inserted in the Act whereunder the possession of a wireless transmitter was constituted a separate offence The amending Act was repealed by the Repealing and Amending Act 1952 XLVIII of 1952 hereinafter called the 1952 Act with the result that on the date of the alleged commission of the offence the said section was not on the statute book If that was the legal position the limitation on the leave granted by this Court would result in an 96 758 anomaly namely that the conviction would stand but the sentence would be quashed The argument so presented appears to be plausible but in our view not sound There is a real justification for this Court limiting the scope of the special leave The High Court by mistake cited in its judgment the provisions of section 61 of the Act instead of section 61 A thereof If the conviction was under section 61 the maximum sentence permissible on the first offence thereunder was only fine which may extend to Rs 100 Presumably on the assumption that the conviction could be sustained under section 61 even if section 61 A was not on the statute book there may be justification for this view as the words it wireless telegraphy apparatus in section 61 are comprehensive enough to take in wireless telegraphy transmitter this Court gave leave limited to the question of sentence The inconsistency if any was the result of the appellant s presentation of his case at that stage and he cannot now be allowed to take advantage of his default to enlarge the scope of the appeal That apart there are no merits in the contention At the outset it would be convenient to read the relevant provisions of the three Acts The section 3 Save as provided by section 4 no person shall possess wireless telegraphy apparatus except under and in accordance with a licence issued under this Act section 61 Whoever possesses any wireless telegraphy apparatus in contravention of the provisions of section 3 shall be punished in the case of the first offence with fine which may extend to one hundred rupees and in the case of a second or subsequent offence with fine which may extend to two hundred and fifty rupess The Indian Wireless Telegraphy Amendment Act 1949 section 5 Amendment of section 6 Act XVII of 1933 In section 6 of the said Act 759 ii after sub section 1 the following sub section shall be inserted namely 1A whoever possesses any wireless transmitter in contravention of the provisions of section 3 shall be punished with imprisonment which may extend to three years or with fine which may extend to one thousand rupees or with both REPEALING AND AMENDING ACT 1952 section 2 The enactments specified in the First Schedule are hereby repealed to the extent mentioned in the fourth column thereof The First Schedule Year No Short title Extent of repeal 1 2 3 4 1949 XXXI The Indian Wireless Telegraphy The whole Amendment Act 1949 section 4 The repeal by this Act of any enactment shall not affect any other enactment in which the repealed enactment has been applied incorporated or referred to The substance of the aforesaid provisions may be stated thus The Act of 1949 inserted section 6 1 A in the Act of 1933 The 1949 Act was repealed by the 1952 Act but the latter Act saved the operation of other enactments in which the repealed enactment has been applied incorporated or referred to The first question that arises for consideration is whether the amendments inserted by the 1949 Act in the 1933 Act were saved by reason of section 4 of the 1952 Act The general object of a repealing and amending Act is stated in Halsbury s Laws of England 2nd Edition Vol 31 at p 563 thus A statute Law Revision Act does not alter the law but simply strikes out certain enactments which have become unnecessary It invariably contains elaborate provisos In Khuda Bux vs Manager Caledonian Press Chakravartti CJ neatly brings out the purpose and 1 AIR 1954 Cal 760 scope of such Acts The learned Chief Justice says at p 486 Such Acts have no Legislative effect but are designed for editorial revision being intended only to excise dead matter from the statute book and to reduce its volume Mostly they expurgate amending Acts because having imparted the amendments to the main Acts those Acts have served their purpose and have no further reason for their existence At times inconsistencies are also removed by repealing and amending Acts The only object of such Acts which in England are called Statute Law Revision Acts is legislative spring cleaning and they are not intended to make any change in the law Even so they are guarded by saving clauses drawn with elaborate care It is therefore clear that the main object of the 1952 Act was only to strike out the unnecessary Acts and excise dead matter from the statute book in order to lighten the burden of ever increasing spate of legislation and to remove confusion from the public mind The object of the Repealing and Amending Act of 1952 was only to expurgate the amending Act of 1949 along with similar Acts which had served its purpose The next question is whether section 4 of the Act of 1952 saved the operation of the amendments that had been inserted in the Act of 1933 by the repealed Act The relevant part of section 4 only saved other enactments in which the repealed enactments have been applied incorporated or referred to Can it be said that the amendments are covered by the language of the crucial words in section 4 of the Act of 1952 namely applied incorporated or referred to We think not Section 4 of the said Act is designed to provide for a different situation namely the repeal of an earlier Act which has been applied incorporated or referred to in a later Act Under hat section the repeal of the earlier Act does not affect the subsequent Act The said principle has been succinctly stated in Maxwell on Interpretation of Statutes 10th Edition page 406 Where the provisions of one statute are by reference incorporated in another and the earlier 761 statute is afterwards repealed the provisions so in corporated obviously continue in force so far as they form part of the second enactment So too in Craies on Statute Law 3rd Edition the sama idea is expressed in the following words at p 349 Sometimes an Act of Parliament instead of expressly repeating the words of a section contained in a former Act merely refers to it and by relation applies its provisions to some new state of things created by the subsequent Act In such a case the is rule of construction is that where a statute is incorporated by reference into a second statute the repeal of the first statute by a third does not affect the second The Judicial Committee in Secretary of State for India in Council vs Hindusthan Co operative Insurance Society Ltd 1 endorsed the said principle and restated the same at p 267 thus This doctrine finds expression in a common form section which regularly appears in the amending and repealing Acts which are passed from time to time in India The section runs The repeal by this Act of any enactment shall not affect any Act in which such enactment has been applied incorporated or referred to The independent existence of the two Acts is therefore recognized despite the death of the parent Act its offspring survives in the incorporating Act Though no such saving clause appears in the their Lordships think that the principle involved is as applicable in India as it is in this country It is therefore manifest that section 4 of the 1952 Act has no application to a case of a later amending Act inserting new provisions in an earlier Act for where an earlier Act is amended by a later Act it cannot be said that the earlier Act applies incorporates or refers to the amending Act The earlier Act cannot incorporate the later Act but can only be amended by it We cannot therefore agree with the view expressed by the Punjab High Court in Mohinder Singh vs Mst 1 LR 58 IA 259 762 Harbhajan Kaur 1 and in Darbara Singh vs Shrimati Karnail Kaur2that section 4 of the Repealing and Amending Act of 1952 applies to a case of repeal of an amending Act This legal position does not really help the appellant for the case on hand directly falls within the four corners of section 6 A of the X of 1897 The above section reads Where any Central Act or Regulation made after the commencement of this Act repeals any enactment by which the text of any Central Act or Regulation was amended by the express omission insertion or substitution of any matter then unless a different intention appears the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal As by the amending Act of 1949 the text of the Act XVII of 1933 was amended by the insertion of 6 1 A therein the repeal of the amending Act by the 1952 Act did not affect the continuance of the amendment made by the enactment so repealed It is said that for the application of section 6 A of the the text of any enactment should have been amended but in the present case the insertion of section 6 1 A was not a textual amendment but a substantial one The text of an enactment the argument proceeds is the phraseology or the terminology used in the Act but not the content of that Act This argument if we may say so is more subtle than sound The word text in its dictionary meaning means subject or theme When an enactment amends the text of another it amends the subject or theme of it though sometimes it may expunge unnecessary words without altering the subject We must therefore hold that the word text is comprehensive enough to take in the subject as well as the terminology used in a statute Another escape from the operation of section 6 A of the is sought to be effected on the basis of the words unless a different intention 1 ILR 1955 Punj 2 763 appears The repealing Act does not indicate any intention different from that envisaged by the said section Indeed the object of the said Act is not to give it any legislative effect but to excise dead matter from the statute book The learned Counsel placed before us the historical background of the amending Act with a view to establish that the intention of the legislature in passing the said Act was to expurgate section 6 1 A from the statute as it was redundant and unnecessary It is said that the XIII of 1885 provided for the offence covered by section 6 1 A and therefore the legislature though by the Act of 1948 inserted the said section in the Act of 1933 removed it in the year 1952 as the said amendment was unnecessary and redundant There is no foundation for this argument and the entire premises is wrong Section 20 of Act XIII of 1885 reads section 20 1 If any person establishes maintains or works a telegraph within India in contravention of the provisions of section 4 or otherwise than as permitted by rules made under that section he shall be punished if the telegraph is a wireless telegraph with imprisoment which may extend to three years or with fine or with both and in any other case with a fine which may extend to one thousand rupees Though the words are comprehensive enough to take in a wireless transmitter the section does not prohibit the possession of a wireless apparatus As the Act only gave power to control the establishment maintenance and working of wireless apparatus in practice it was found that the detection of unlicenced apparatus and the successful prosecution of the offenders were difficult with the result that the State was losing revenue To remove this defect Act XVII of 1933 was passed to prohibit the possession without licence of a wireless apparatus Under section 6 the penalty for such illegal possession of a wireless telegraphy apparatus was made an offence but the sentence prescribed was rather lenient Subsequently the legislature thought that the possession of a wireless transmitter 764 was a graver offence sometimes involving the security of the State and so an amendment was introduced in 1949 constituting the possession of such apparatus a graver offence and imposing a more severe punishment Therefore it cannot be said that section 61 A inserted in the Act XVII of 1933 by the amending Act of 1949 is either covered by the provisions of the or a surplusage not serving any definite purpose Even from the history of the legislation we find it not possible to say that it disclosed an intention different from that envisaged in section 6 A of the For the aforesaid reasons we hold that section 6 1 A of the Act continued to be on the statute book even after the amending Act of 1949 was repealed by Act XLVIII of 1952 and that it was in force when the offence was committed by the appellant The appeal fails and is dismissed

A complaint was filed against seven persons under SS 409 465 467 471 and 477A of the Indian Penal Code After examining the complainant summonses were issued to the accused to answer a charge under section 406 The trial started as in a warrant case prosecution witnesses were examined and cross examined and the statements of the accused were recorded and the Magistrate heard arguments on the question of framing charges Thereafter he framed charges under SS 409 and 465 read with SS 471 and 477A and without giving previous intimation of his intention to do so passed an order committing the appellants to the Court of Sessions The appellants contended that the commitment was illegal because the case having begun as a warrant case it was incumbent upon the Magistrate when he decided to commit the case to the Court of Session to follow the procedure provided in Ch XVIII Code of Criminal Procedure but he failed to comply with the provisions of SS 208 to 213 of 737 that Chapter The complainant urged that even if the provi sions of SS 208 to 213 had not been complied with no prejudice was caused to the appellants and the commitment could not be quashed Held that the commitment order was illegal as the Magistrate had failed to comply with the provisions of section 208 of the Code of Criminal Procedure The proceedings having begun as in a warrant case if the Magistrate at a subsequent stage was of the view that the case should be committed to the Court of Sessions he had to act under section 3471 of the Code and to follow the procedure prescribed for inquiries under Ch XVIII of the Code When in the present case the Magistrate decided to commit the case he should have refrained from framing the charge and should have informed the accused of his intention to commit and should have called upon the accused to produce defence evidence if any The failure of the Magistrate to intimate his decision to commit to the accused deprived them of the right to produce defence evidence if any under section 208 The denial of this right was itself sufficient to cause prejudice to the accused and failure of justice inasmuch as the accused were prevented from leading evidence which might have induced the Magistrate not to frame the charge against them Subramania Iyer vs King Emperor 1901 LR 28 IA 257 Pulukuri Kotayya vs King Emperor 1948 LR 74 IA 65 and Narain Rao vs The State of Andhra Pradesh referred to

minal Appeal No 174 of 1956 Appeal by special leave from the judgment and order dated the April 15 1955 of the Bombay High Court in Criminal Revision Application No 392 of 1955 arising out of the judgment and order dated December 14 1954 of the Presidency Magistrate 15th Court Mazagaon Bombay in Case No 532S of 1953 E B Ghasvala and I N Shroff for the appellant C B Aggarwala J B Dadachanji section N Andley and Rameshwar Nath for respondent No 1 H J Umrigar R H Dhebar and T M Sen for respondent No 2 95 750 1959 September 15 The Judgment of the Court was delivered by IMAM J A complaint was filed by the appellant on the 4th of December 1953 against the respondent Agbotwala and one Phirozbai Mazarkhan under sections 385 389 and 50034 and 109 of the Indian Penal Code in the Presidency Magistrate s 15th Court Mazagoan Bombay The accused were summoned As the accused Phirozbai Mazarkhan could not be produced the trial produced against the respondent Agbotwala hereinafter referred to as the respondent only The Presidency Magistrate was not satisfied on the evidence that the respondent and Phirozbai Mazarkhan had conspired either to defame the appellant or to extort money from him He also held that there was no evidence to show that the respondent knew that Phirozbai Mazarkhan was committing on offence Accordingly he declined to frame a charge under sections 385 and 389134 and 109 of the Indian Penal Code The Presidency Magistrate however framed a charge under section 500 IPC against the respondent who pleaded not guilty He was of the opinion after the consideration of the evidence that the respondent had on the 13th of October 1952 uttered before Mr Parab an advocate the defamatory words with which be was charged He was further of the opinion that section 198 of the Code of Criminal Procedure stood in the way of his taking cognizance Although the complaint had been made by the person aggrieved there was no mention therein of the facts which formed the subject matter of the offence with which the respondent had been charged The complainant namely the appellant not having mentioned the facts which constituted the offence with which the respondent had been charged the charge had been wrongly framed The Presidency Magistrate was of the opinion that a complaint should have been filed in respect of the offence with which the respondent had been charged As that had not been done in the recent case the charge had been wrongly framed He accordingly acquitted the respondent Against the decision of the Presidency Magistrate an application in revision was filed by the appellant in 751 the High Court of Bombay which was dismissed with the remark Rejected as no offence Thereafter the appellant obtained special leave from this Court to appeal against the decision of the High Court When the appellant filed his complaint before the Presidency Magistrate he referred to the nature of the defamatory statement made by Phirozbai Mazarkhan which was contained is the notice sent to him by Mr N K Parab on behalf of his client Phirozbai Mazarkhan After giving good many details of the correspondence which ensued thereon he referred to the part played by the respondent in paragraphs 19 to 24 of the complaint Whatever was alleged by the appellant was the result of knowledge obtained after enquiries The most important of these paragraphs so far as the respondent is concerned is paragraph 22 which is as follows I have also come to know as a result of my enquiries that Accused No 2 was seen on occasions and at the relevant time going to the office of the said advocate Mr Parab at Mazagoan with a woman My enquiries further revealed that Accused No 2 was in fact instrumental in connection with the aforesaid correspondence and filing a complaint and that though in fact the complaint was filed in the name of Accused No 1 Accused No 2 was the real person behind it The appellant then finally alleged that Phirozbai Mazarkhan and the respondent had conspired together and in furtherance of their common intention attempted to put him in fear of injury in body and reputation and in property and that they did so with the object of committing extortion He accordingly asserted that the accused had committed offences under sections 385 389 and 50034 and 109 of the Indian Penal Code At the trial the charge which had been framed against the respondent was as follows I H G Mahimtura Presidency Magistrate hereby charge you Mohomed Haji Ahmed Agbotwala as follows That you on or about 13 10 52 at Bombay defamed Abdul Rehman Mohamed Yusuf by making 752 or publishing to witness NK Parab certain imputations concerning the said Abdul Rehman to wit that a woman named Phirozbai Mazarkhan was in his keeping that he had promised to marry her but did not keep his promise and that he cheated her of her ornaments worth about Rs 30000 by means of spoken words intending to harm or knowing or having reason to believe that such amputations would harm the reputation of the said Abdul Rehman and you thereby committed an offence punishable under section 500 of the Indian Penal Code and within my cognizance And I hereby direct that you be tried on the said charge Charge explained Accused pleads not guilty It will be noticed that this charge asserts that the respondent had uttered defamatory words to the advocate N K Parab It had not been asserted as a fact in the complaint that the respondent had uttered any defamatory words to Mr Parab The utmost which had been asserted therein against the respondent was that he was instrumental in connection with the correspondence that ensued between the advocate Parab and himself and in the filing of the complaint by Phirozbai Mazarkhan against the appellant It was urged on behalf of the appellant that the Presidency Magistrate having found that the respondent had uttered the words mentioned in the charge to the advocate Parab he should not have acquitted the respondent as section 198 of the Code of Criminal Procedure was no real impediment in the way of the Presidency Magistrate He had taken cognizance of an offence under section 50034 and 109 of the Indian Penal Code on the complaint filed by the appellant If at the trial it appeared that an offence under section 500 only had been committed it was open to the Presidency Magistrate to take cognizance of that offence without the necessity of a separate complaint in respect thereof It was also urged that if the complaint was read as a whole it indicated that the respondent must have uttered the words the subject matter of the charge 753 and that those words were not uttered to Mr Parab by Phirozbai Mazarkhan only Finally it was suggested that even if it be assumed that for the charge framed a separate complaint should have been filed and no cognizance could be taken for the offence charged in view of section 198 of the Code of Criminal Procedure and that the Presidency Magistrate was right in his opinion that he had wrongly framed such a charge it was his duty to make a reference to the High Court for the cancellation of the charge The Presidency Magistrate acted without jurisdiction in proceeding further with the case and recording an order of acquittal on the ground that a complaint stating the facts upon which the present charge could have been framed had not been filed On behalf of the respondent it was urged that the Presidency Magistrate correctly acquitted the respondent as there was no complaint for the offence as charged and section 198 of the Code of Criminal Procedure prohibited him from taking cognizance of the offence mentioned in the charge It was pointed out that the offence of defamation could be committed on several occasions The charge as framed referred to the defamatory words alleged to have been uttered by the respondent to Mr Parab This was a separate offence though of the same kind from the offence mentioned in the complaint It was further pointed out that although the Presidency Magistrate had expressed the opinion that the respondent had uttered the defamatory words charged to Mr Parab he had given no grounds upon which he came to this conclusion If the entire evidence and the attending circumstances were taken into consideration it was clear that the evidence of Parab could not be believed Even if it be assumed that the Presidency Magistrate wrongly acquitted the accused this was not a case in which the order of acquittal should be set aside The submissions made on behalf of the appellant and the respondent were advanced with skill and elaborate arguments were urged in support of the respective contentions 754 It seems to us that on the findings of the Presidency Magistrate he could not have recorded an order of acquittal The complaint as filed was not with reference to any alleged defamatory words uttered by the respondent to Mr Parab Although the Presidency Magistrate believed the evidence of Mr Parab he was of the opinion that he wrongly framed the charge as the complaint did not state the facts which constituted the offence with which the respondent had been charged In such a situation the Presidency Magistrate instead of proceeding to record an order of acquittal should have brought the matter to the notice of the High Court so that the error might be corrected As the matter is before us in appeal we can do that which the High Court could have done In our opinion the offence charged was a separate offence although of the same kind from the offence in respect of which the facts has been stated in the complaint For this separate offence a complaint should have been filed and the provisions of section 198 of the Code of Criminal Procedure complied with In our opinion the provisions of that section are mandatory Even in section 238 of the Code of Criminal Procedure the importance of the provisions of section 198 or section 199 of the Code is emphasised 3 of this section specifically states that the provisions of this section do not authorise the conviction of an offence referred to in section 198 or 199 when no complaint has been made as required by these sections The Presidency Magistrate wrongly framed the charge as on the record when in respect of the offence charged there was no complaint filed and the facts as stated in the complaint actually filed did not make out the offence as charged It is clear from the findings of the Presidency Magistrate that the offence of conspiracy and abatement as alleged in the complaint actually filed had not been established He should have then discharged the accused and refrained from framing a charge for an offence in respect of which there was no complaint before him as required by section 198 of the Code of Criminal Procedure He had no jurisdiction to frame the charge he had framed His order of acquittal therefore must be regarded as a nullity 755 In this appeal this Court can do what the High Court could have done We accordingly allow the appeal and set aside the order of acquittal made by the Presidency Magistrate but on the finding of the Presidency Magistrate that no offence of conspiracy or abetment arising therefrom bad been established we direct that the present complaint be dismissed The respondent is accordingly discharged Appeal allowed

The cement factory in question which is in the State of Bihar belonged to the appellant company and a limestone quarry owned by the same company As situate about a mile and a half from the factory Limestone being the principal rawmaterial for the manufacture of cement the factory depended exclusively for the supply of limestone on the said quarry On behalf of the labourers in the limestone quarry certain demands were made on the management of the company but as they were rejected they went on strike and on account of the non supply of limestone due to the strike the management had to close down certain sections of the factory and to lay off the workers not required during the period of closure of the sections concerned Subsequently after the dispute between the management and the workers of the limestone quarry was settled and the strike came to an end a demand was made on behalf of the workers of the factory who had been laid off during the strike for payment of lay off compensation under section 25C of the but the management refused the demand relying on cl iii to section 25E of the Act which provided that no compensation shall be paid to a workman who had been laid off if such laying off is due to strike on the part of workmen in another part of the establishment The Industrial Tribunal took the view that the limestone quarry was not part of the establishment of the cement factory and that the workmen in the latter were not disentitled to lay off compensation by reason of Cl iii of section 25E of the Act The appellant company appealed by special leave to the Supreme Court and contended that the decision of the Tribunal was erroneous because the facts of the case showed a that in respect of both the factory and the limestone quarry there was unity of ownership unity of management supervision and control unity of finance and employment unity 704 of labour and conditions of service of workmen functional integrality general unity of purpose and geographical proximity and b that the strike was decided on by the same Workers Union which consisted of the workmen at the factory and the quarry It was contended for the respondents inter alia 1 that the conclusion of the Industrial Tribunal that the factory and the limestone quarry are not parts of one establishment is a finding of fact which should not be disturbed in an appeal by special leave 2 that the effect of the Explanation to section 25A of the Act is to negative the idea of a factory and a mine forming parts of one establishment and 3 that since in the matter of reference of industrial disputes the Act gives jurisdiction to two distinct authorities the Central Government in respect of the limestone quarry and the State Government in respect of the factory the two units the factory and mine cannot be treated as one establishment Held 1 that the question whether the factory and the limestone quarry form one establishment depends upon the true scope and effect of the expression in another part of the establishment in cliiiof section 25E of the and involves a consideration of the tests which should be applied in determining whether a particular unit is part of a bigger establishment and though for that purpose certain preliminary facts must be found the final conclusion to be drawn therefrom is not a mere question of fact 2 that the true scope and effect of the Explanation to section 25A of the Act is that it explains what categories factory mine or plantation come within the meaning of the expression industrial establishment it does not deal with the question as to what constitutes one establishment and lays down no tests for determining that question 3 that existence of two jurisdictions does not necessarily imply that for all purposes of the Act and particularly for payment of unemployment compensation the factory and quarry must be treated as separate establishments and 4 that on the facts of the present case the limestone quarry and the factory constituted one establishment within the meaning of cl iii of section 25E of the Act and that the workmen at the factory were not entitled to claim lay off compensation

Civil Appeals Nos159 and 160 of 1958 Appeals by special leave from the Award dated September 4 1958 of the Industrial Tribunal Bombay in Reference IT Nos 138 and 35 of 1958 N A Palkhivala section N Andley J B Dadachanji and Rameshwar Nath for the appellant C L Dudhia and K L Hathi for respondents No 1 and 2 1959 October 16 The Judgment of the Court was delivered by WANCHOO J These two appeals by special leave arise out of two references made by the Government of Bombay in connection with a dispute between the appellant company and two sets of its workmen namely clerical staff and staff other than clerical The clerical staff had raised four questions which were referred to the Industrial Tribunal Bombay for adjudication of these only two points survive in the present appeal namely retirement age and gratuity The non clerical staff had raised two questions of which only one relating to gratuity arises before us It appears that the appellant company is an all India concern but the major part of its business is concentrated in Calcutta The number of non clerical staff outside Calcutta is very small as compared to the 53 non clerical staff in Calcutta while the clerical staff outside Calcutta is much less than the clerical staff in Culcutta The company had a gratuity scheme in force which applied to both clerical and non clerical staff though there were differences in the scale of payment depending upon whether the basic salary drawn by workmen other than operatives was more than Rs 100 or less In case of operatives there was a uniform scale equal to the scale for workmen other than operatives drawing less than Rs 100 per mensem The clerical and non clerical staff in Bombay raised disputes and their main contention was that the scale fixed by the scheme in force was low and should be raised As for the retirement age the clerical staff claimed that it should be raised from 55 years to 60 The case of the appellant company before the tribunal was that as the large majority of the staff both clerical and non clerical was in Calcutta and as the gratuity scheme and the retirement age were enforced by virtue of an agreement arrived at between the appellant company and its workmen both clerical and others in Calcutta who are a large majority of its total workmen they should not be changed at the instance of a small minority of workmen both clerical and others in Bombay The tribunal did not accept this contention and raised the age of retirement from 55 years to 60 It also made changes in the gratuity scheme by which the scale was raised and made uniform both for clerical staff and others Thereupon the appellant applied for and obtained special leave from this Court and that is how the matter has come up before us Shri Palkhivala appearing for the appellant has raised only two points before us relating to the raising of the retirement age and the change in the scale of gratuity and we shall confine ourselves to these two points only It is conceded by him that the Industrial Tribunal has jurisdiction to order the changes which it has ordered But his contention is that though the jurisdiction may be there the tribunal should take into account the special position of an all India concern and should not make changes particularly at the 54 instance of a small minority of workmen as that would lead to industrial unrest elsewhere He further contends that the scale of gratuity and the age of retirement are matters which are independent of local conditions and therefore should be uniform thought India in concerns which have an all India character He points out that the conditions of service in the appellant company are uniform throughout India and were arrived at by agreement with the unions of workmen at Calcutta where the large majority of the workmen are employed and in these special circumstances the tribunal at Bombay should not have made any changes in the retiring age or in the gratuity scheme at the instance of the small minority of workmen in Bombay There is no doubt that in the case of an all India concern it would be advisable to have uniform conditions of service throughout India and if uniform conditions prevail in any such concern they should not be lightly changed At the same time it cannot be forgotten that industrial adjudication is based in this country at least on what is known as industry cumregion basis and cases may arise where it may be necessary in following this principle to make changes even where the conditions of service of an all India concern are uniform Besides however desirable uniformity may be in the case of all India concerns the tribunal cannot abstain from seeing that fair conditions of service prevail in the industry with which it is concerned If therefore any scheme which may be uniformity in force throughout India in the case of an all India concern appears to be unfair and not in accord with the prevailing conditions in such matters it would be the duty of the tribunal to make changes in the scheme to make it fair and bring it into line with the prevailing conditions in such matters particularly in the region in which the tribunal is functioning irrespective of the fact that the demand is made by only a small minority of the workmen employed in one place out of the many where the all India concern carries on business Before we come to consider the two questions raised before us we may as well point out that the 55 scale of gratuity and the retirement age were originally fixed by an agreement arrived at in 1956 between the appellant company and its workmen in Calcutta who form a large majority That agreement was for a period of two years ending with December 31 1957 Thereafter it was replaced by another agreement also for two years beginning from 1st January 1958 In that agreement it was specifically provided that no further major issues would be raised excepting those relating to medical aid retirement age and retirement benefits It is clear therefore that even the workmen in Calcutta had reserved the right to raise a dispute with respect to retirement age and gratuity if necessary The reason for this is that the references out of which those appeals have arisen were pending before the tribunal in Bombay and the unions in Calcutta wished to await the decision of the Bombay tribunal before finally agreeing to continue the rules relating to retirement age and gratuity The appellant company also agreed to make this reservation in the said agreement arrived at between it and the unions in Calcutta Therefore strictly speaking it cannot be said in this case that there was a final agreement in force with respect to these two matters between the appellant and large majority of its workmen in September 1958 when the Bombay Tribunal gave its award In any case the Bombay Tribunal was bound to go into the merits of the matter with respect to these two items namely retirement age and gratuity keeping in mind the all India character of the concern and the previous agreement of 1956 and this is what the tribunal has actually done We shall first take the question of retirement age The tribunal found that retirement age was fixed between 55 years and 60 in various concerns in Bombay It was also of opinion that 55 years was too low an age to be fixed for retirement for the clerical staff and that the trend in all the awards had in recent times been to fix it at 60 years It therefore ordered that so far as the clerical staff was concerned retirement age should be fixed at 60 years instead 56 of 55 We may in this connection refer to a recent decision of this Court in Guest Keen Williams Private Limited Calcutta vs P J Sterling and Others 1 where the age of superannuation of employees in service before the Standing Orders came into force in that concern was fixed at 60 years In these circumstances if the tribunal thought that it would be fair to fix 60 years as the age of retirement for clerical staff in spite of the fact that in the agreement of 1956 the retirement age was fixed at 55 years it cannot be said that the tribunal s order was not in accord with the prevailing conditions in many concerns in that region In these circumstances we are of opinion that no interference is called for in this matter We now come to the question of gratuity The gratuity scheme in force in the appellant company on the basis of the agreement of 1956 provided for threequarters of one month s average basic salary for each completed year of continuous service for staff other than operatives drawing up to Rs 100 per menses and thereafter half a month s average basic salary for each year It also provided three weeks average basic wages for each completed year of continuous service for operatives Three years service was the minimum period for eligibility to gratuity under special circumstances like death physical and mental incapacity and 15 years service in all other cases There was also a provision for deducting some amount in lieu of provident fund credited by the company in 1941 in respect of service prior to 1st July 1941 The tribunal was of the opinion that the scheme was not adequate and contained features which were not usual in other prosperous concerns it pointed out that the scale of gratuity for clerks was on a lower basis than for operatives and that this was against the general conditions of things prevailing in that region It further pointed out that the clerical and the supervisory staff had a higher standard of living and had to meet heavier expenses of education of their children who get employment at a late age as compared to operatives It was therefore of opinion that a uniform scale of gratuity should be fixed for all 1 57 including those getting wages above Rs 100 per menses It also pointed out that the requirement of a minimum service of three years in case of death and physical and mental incapacity was another unusual feature of this scheme and held that it should be changed It was further of opinion that the usual provision in such schemes was a scale of one month s basic salary for each completed year of continuous service in case of death physical and mental incapacity and after 15 years continuous service and that some gratuity at a lower scale was provided usually even in case of termination of service before the completion of 15 years service It therefore provided for half a month s basic salary for each completed year of continuous service after 5 years but upto ten years and three fourths of basic monthly salary for each year of completed service after ten years but less than fifteen years continuous service and one month s basic salary for each year for the rest Finally it took into account the fact that there was a supplementary gratuity scheme in force in the company with respect to the employees in the employ of the company from before September 1 1946 and with respect to them it provided that those employees should either opt for the scheme as framed by it or continue in the gratuity scheme of the company along with the supplementary gratuity scheme It appears therefore from the gratuity scheme finally sanctioned by the tribunal that it removed those features from the scheme in force in the appellant company which were unusual and unfair and not in consonance with the prevailing conditions for such schemes in that region In these circumstances we are of opinion that the tribunal was not bound merely because this is an all India concern to refrain from altering the gratuity scheme which in its opinion had certain unusual features and was not in accord with the prevailing conditions in that region The appellant s contention therefore on this head also fails The appeals are hereby dismissed with one set of costs

Section 3 of the provided that no person shall possess wireless telegraphy apparatus without a licence and section 6 made such possession punishable The Indian Wireless Telegraphy Amendment Act 1949 introduced section 61A in the 1933 Act which provided for a heavier sentence for possession of a wireless transmitter without a licence The Repealing and Amending Act 1952 repealed the whole of the Amendment Act of 1949 but by section 4 provided that the repeal shall not affect any other enactment in which the repealed enactment had been applied incorporated or referred to The appellant was convicted under section 61A for being in possession of a wireless transmitter on July 31 1953 He contended that section 61A had been repealed and his conviction and sentence thereunder could not be sustained Held that section 61A was saved by section 6A of the though section 4 of the Repealing and Amending Act 1952 did not save it 756 The object of the Repealing and Amending Act 1952 was to strike out unnecessary Acts and to excise dead matter from the statute book Khuda Bux vs Manager Caledonian Press AIR 1954 Cal 484 referred to Section 4 of the Repealing and Amending Act 1952 only saved other enactments in which the repealed enactment had been applied incorporated or referred to It had no application to the case of a later amending Act inserting a new provision in an earlier Act as it could not be said that the earlier Act applied incorporated or referred to the Amending Act Secretary of State for India in Council vs Hindusthan Co operative Insurance Society Ltd LR 58 IA 259 followed Mohinder Singh vs Mst Harbhajan Kaur ILR 1955 Punj 625 and Darbara Singh vs Shrimati Karnail Kaur 61 PLR 762 disapproved Section 6A of the provided that when any Central Act repealed any enactment by which the text of any Central Act was amended then unless a different intention appeared the repeal would not affect such amendment The word text in section 6A was comprehensive enough to include the subject as well as the terminology used in a statute and the insertion of section 61A in the 1933 Act was an amendment in the text No different intention appeared either from the repealing Act or from the history of the legislation and section 6A applied to the repeal of the Amendment Act 1949

Appeal No 261 of 1955 Appeal from the judgment and decree dated April 22 1949 of the Bombay High Court in Appeal No 403 of 1945 from Original Decree arising out of the judgment and decree dated August 14 1945 of the Civil Judge Senior Division Nasik in Special Civil Suit No 5 of 1943 Purshottam Tricumdas Mrs E Udayaratnam and section section Shukla for the appellant R Ganapathy Iyer K L Hathi and R H Dhebar for respondent No 1 W section Barlinge Shankar Anand and A G Ratnaparkhi for respondents Nos 6 and 7 1959 September 22 The Judgment of the Court was delivered by HIDAYATULLAH J This appeal with a certificate Hi of the High Court of Judicature Bombay has been filed against the judgment and decree of that Court 776 dated April 22 1949 in First Appeal No 403 of 1945 confirming the judgment and decree of the Civil Judge Senior Division Nasik in Special Suit No 5 of 1943 decided on August 14 1945 The High Court made a slight modification in the matter of costs to which we shall refer later The plaintiff who is the appellant here is the descendant of one Ganpati Maharaj who was a devotee of Shri Venkatesh Balaji Ganpati Maharaj died in 1701 at the ripe age of 98 When Ganpati Maharaj was 72 years old it was vouchsafed to him in a dream that an image of Venkatesh Balaji would be found by him in river Tambraparni in Tirunelveli District He found the image brought it to his house in Junnar Poona District and installed it The worship of Shri Venkatesh Balaji was carried on by him and when he died he left behind him three sons and a daughter His eldest son Timmayya at the time of his death was 12 years old Timmayya succeeded Ganpati Maharaj and lived till 1768 when he died at the ripe age of 79 During his lifetime Timmayya obtained several properties as presents and gifts The present suit concerns those properties which are described in the schedules attached to the plaint The appellant is the direct descendant of Ganpati in the eldest male line and respondents 1 to 4 are the descendants from Ganpati s daughter Nagubai On April 23 1942 the first four respondents made an application to the District Court tinder section 3 of the Charitable and Religious Trusts Act 1920 No 14 of 1920 hereinafter called the Act against the appellant and two others asking that the appellant be directed to furnish full particulars of the properties and their application and for accounts of the income as also of the properties during the three preceding years The appellant in reply denied that there was a trust much less a public trust and claimed the idol and the properties as private He understook to bring a suit under section 53 of the Act and the suit out of which the present appeal arises was filed on March 21 1943 He claimed in the suit three declarations which were as follows 777 1 It may be declared that Shri Vyankatesh Balaji Deity and Shri Vyankatesh Balaji Sansthan are not legal trust as alleged by the Defendants and their nature also is not such as alleged by the Defendants 2 If the court holds that a trust in the matter of Shri Vyankatesh Balaji Deity and Shri Vyankatesh Balaji Sansthan exists then it may be declared that the said trust is not a public one that the same has not come into existence for the religious and charitable purposes and that the Religious and Charitable Trusts Act sicNo 14 of 1920 is not applicable to the same 3It may be declared that the Defendants for themselves or as the representatives of the entire Hindu Community have no right and authority whatever over Sri Vyankatesh Balaji Devta and Shri Vyankatesh Balaji Sansthan and that they or the entire Hindu Community has no right and authority whatever in any capacity whatever to interfere in the matter of Devta deity and Sansthan or to ask for the Yadi list of the properties or accounts in respect of the income thereof and to ask for reliefs mentioned in prayer clauses of the Miscellaneous Application No 19 of 1942 The trial Judge framed eight issues The first two involved the declarations sought Three others concerned the position of defendants 1 to 4 6 and 7 in respect of maintenance share in the right of customary worship and management One issue raised the question whether the suit was had because the deity was not joined and the remaining two were consequential The trial Judge decided all the issues against the appellant He held that the suit properties were not the personal or private properties of the appellant that the plaintiff was estopped from making such a claim that the deity itself was not a family or private deity and that the deity Shri Venkatesh Balaji was the owner of the properties and that there was a public religious and charitable trust in respect of them It was however held that the appellant was entitled as the hereditary shebait to manage them 778 The trial Judge also gave a finding that the first four defendants were entitled to customary worship and emoluments as might be fixed by the Pujadhikaris descended from the eldest branch of Bapaji Buva and could be removed for failure to perform the duties assigned to them The application under section 3 of the Act was held to be competent and the suit was also held to be bad in the absence of the deity In the result the trial Judge dismissed the suit awarding two sets of costs to the defendants It may be pointed out that after the suit was filed a public notice under section 1 R 8 of the Code of Civil Procedure was issued and other defendants were joined representing the Hindu Community During the early stages of the suit the first four defendants raised the question whether the deity was not a necessary party to such a suit and desired that the deity should be joined represented by an independent guardian ad litem This application was opposed by the appellant who stated that inasmuch as his case was that the deity and the properties were his personal properties there was no need to join the deity because of an averment by the defendants that the temple was a public one and the properties were public religious endowments The trial Judge after expressing some surprise that the plaintiff should have taken this stand acceded to his contention and did not join the deity as a party He however warned the appellant by his order that in case the deity was found to be a necessary party the suit might have to be dismissed for that reason alone Against the decree dismissing the suit an appeal was taken to the High Court of Bombay The learned Judges of the High Court Rajadhyaksha and Chainani JJ dismissed the appeal but modified the order about costs directing that only one set of costs be paid to the defendants in the suit The learned Judges traced the history of the various properties and how they were acquired and concluded that in respect of some of the properties there was no doubt that they formed religious endowments of a public nature but in respect of others though they were inclined to hold that they were personal properties 779 they held that no declaration could be given since the deity was not a party to the proceedings They however granted a certificate of fitness under article 133 of the Constitution read with sections 109 and 110 of the Code of Civil Procedure and the present appeal has been filed as a result Before dealing with the appeal proper it is necessary to refer to certain landmarks in the history of Shri Venkatesh Balaji and this family As we have stated earlier the deity was placed in his house by Ganpati Maharaj at Junnar in Poona District Ganpati Maharaj did not acquire any property but in the lifetime of his son the deity was moved from Junnar to Nasik A tradition in the family says that this was the result of a dream by Timmayya who was warned that Junnar would be burnt to ashes and the deity must be removed Timmayya soon acquainted the people of the locality with the miraculous powers of the deity and not content with this alone he took the deity to the Courts of the various Rulers and also from place to place acquiring the properties in dispute cash allowances and gifts After Timmayya died his eldest son Bapaji Buva obtained a plot of land in gift from the Peshwa near the bank of the Godavari river at Nasik and built a temple on it The deity was installed in that temple and has continued in that abode ever since Bapaji Buva had raised a loan for the construction of the temple and a substantial portion of it was paid off by the Peshwa and other Rulers like Holkar and Scindia In Bapaji s Buva s time a large Sabha Mandap was built in the premises of the temple to accomodate about 600 persons at the time of darshan and worship of the deity In 1774 family disputes arose and a Tahanama exhibit 121 was executed whereby the right of management was vested in the eldest male member of the senior branch of the family and provision was made for the maintenance of that branch as well as the junior branches Again in 1800 further disputes took place in the family and a Tharav Yadi exhibit 122 was drawn up By that agreement instead of the cash allowances for the maintenance of the branches certain 780 villages were assigned to them Next came the Inam Commission under the Bombay Rent free Estates Act 1852 Bom 11 of 1852 by which in accordance with the policy laid down by Lord Bentick all jagirdars and inamdars were required to prove the sources of their title and the conditions on which the jagirs or inams were held The Assistant Inam Commissioner recorded the grant of the villages under R 3 of Sch B to that Act as personal inams Damodar Maharaj who was then the Pujadhikari or Sansthanik appealed to the Inam Commissioner and contended that the villages were not held as personal inams but were Devasthan inams and could only be recorded under R 7 of Sch The difference between the two Rules was that whereas personal inams could be held only so long as the family survived Devasthan inams were held permanently and were to be recorded as such The Inam Commissioner accepted this contention and caused the entries to be changed from personal inams to Devasthan inams in respect of the villages Damodar Maharaj died in 1885 and was succeeded by Krishnarao Maharaj who died in 1893 whose eldest son Bhagwantrao Maharaj died in 1900 and was succeeded by the appellant during whose minority the property was managed by a guardian appointed by Court The appellant became major in 1921 and took over the management of these properties In 1929 the appellant caused a history of the deity to be written and it was published by him A reference to all these documents will be necessary hereafter to consider the argument whether there was a religious endowment of a public nature or whether the properties in dispute were privately owned As pointed out already the two Courts below have concurred in holding that the deity was not a mere family deity in which the public had no interest and that the properties given to the deity constituted a religious and charitable endowment of a public nature Ordinarily such a finding is a finding of fact not open to further scrutiny by this Court but the appellant contended that the legal inference drawn from the proved facts in the case was erroneous and a point of law 781 therefore arose A mistaken inference from documents is no less a finding of fact if there is no misconstruction of the documents and this principle should be applied to the discussion of the documentary evidence in this case because if there was no misconstruction of the documents the concurrent findings would be not of law but of fact and the error if any equally of fact Both the Courts below have analysed at length the documents which number several hundreds and have pointed out that there was nothing inconsistent in them with the contention of the respondents that there was a religious and charitable endowment of a public character in favour of the deity Before us the attempt of the appellant was to show that this conclusion was not correct and that the documents pointed to grants in favour of individuals for the time being managing the affairs of a family deity In addition to the examination of the documents the two Courts below relied strongly against the appellant on the admissions made by his predecessors in title from 1774 onwards Learned counsel for the appellant contended that the documents were misconstrued and thus the inference from them in which these so called admissions were contained was exactly the opposite of what the Courts have deduced In this appeal therefore all that is necessary is to see whether the inferences are vitiated by a misconstruction of the documents as such The appellant contended that this was a special suit under section 53 of the Charitable and Religious Trusts Act 1920 and that the burden lay upon the respondents to prove that there was a religious and charitable trust of a public character in favour of the deity He contended that the two Courts below had placed the burden of proof upon him to show by positive evidence that the deity was a family deity and that the properties were his private properties According to him the defendants ought to have proved their case and if they failed to prove affirmatively that case then the suit ought to have been decreed in his favour The expression burden of proof really means two different things It means sometimes that a party is 99 782 required to prove an allegation before judgment can be given in its favour it also means that on a contested issue one of the two contending parties has to introduce evidence Whichever way one looks the question is really academic in the present case because both parties have introduced their evidence on the question of the nature of the deity and the properties and have sought to establish their own part of the case The two Courts below have not decided the case on the abstract question of burden of proof nor could the suit be decided in such a way The burden of proof is of importance only where by reason of not discharging the burden which was put upon it a party must eventually fail Where however parties have joined issue and have led evidence and the conflicting evidence can be weighed to determine which way the issue can be decided the abstract question of burden of proof becomes academic In the present case the burden of proof need not detain us for another reason It has been proved that the appellant and his predecessors in the title which he claims had admitted on numerous occasions that the public had a right to worship the deity and that the properties were held as Devasthan inams To the same effect are the records of the revenue authorities where these grants have been described as Devasthan except in a few cases to which reference will be made subsequently In view of all these admissions and the revenue records it was necessary for the appellant to prove that the admissions were erroneous and did not bind him An admission is the best evidence that an opposing party can rely upon and though not conclusive is decisive of the matter unless successfully withdrawn or proved erroneous We shall now examine these admissions in brief and the extent to which they went and the number of times they were repeated The earliest admission that the property belonged to the Devasthan and that there was no private ownership is to be found in the Tahanama exhibit 121 of the year 1774 This Tahanama was entered into by the sons of Timmayya Maharaj in the presence of 783 Panchas long before the present dispute arose It is stated there that Shrimant Pant Pradhan and other Sardars of both Nizam and Deccan States have granted in Inam villages for the purposes of Seva worship of Shri deity It as again stated that the Shri s temple which was newly built on the banks of the river Ganga Godavari belonged to Shri s Sansthan and nobody had a share therein By the Tahanama the three brothers set apart a certain sum for the Seva worship of the deity in accordance with their practice which sum was not to be diminished under any circumstance They however took a small portion of the income as their own Nemnuk maintenance which Nemnuk was to be reduced if the income was not sufficient to meet the expenses of Shri deity Learned counsel for the appellant stated that the Tahanama was misconstrued by the two Courts below He contended that this was a private temple and if anything could be spelt out from this document it was that the three brothers constituted a private trust in favour of the deity According to him the brothers were dividing the income which was theirs into two parts namely 1 for the Seva of the deity and 2 for their maintenance This in our opinion is a strained reading of the document as a whole This deity was Swayambhu and not a consecrated idol If none of the members of the family had any interest in the Shri s temple or any shares in the properties thereof obviously the properties were not private properties nor the idol a family idol The document clearly shows that the deity was regarded as the owner and the family were its servants This is made clear by the subsequent document which is the Tharav Yadi of 1800 the Nemnuk allowance which the members of the family had taken out of the income was described as Vetan remuneration for doing service to the deity and Sansar Begmi for themselves The use of the word Vetan does not indicate ownership but on the contrary paid service Even as far back as 1774 to 1800 the predecessors of the appellant considered themselves as the servants of the deity and all that they did was to make a stable arrangement for the 784 application of the funds so that the deity could enjoy its own property and the servants were regularly paid When the Inam Commission was established to enquire into the jagirs and inams which had passed into the territory of the East India Company Act No 1 of 1852 was passed The Inam Commission purported to be established under that Act and for purposes of enquiry as laid down under that Act The Assistant Inam Commissioner at that time held that the inam was a personal one and ordered that it be recorded as such This was in the years 1857 to 1859 Damodar at that time went up in appeal to the Inam Commissioner complaining against the record of the inams as personal and claimed that they should be recorded as Devasthan inams His appeal is exhibit D 643 dated March 5 1858 He stated therein that the mokass Amal and the jagir and Sardeshmukhi in the villages were granted for the expenditure on account of the Shri He relied on the Sanads in which it was stated that the Amals revenue shares were for the purpose of worship and Naivedya food offering to the Devasthan of Shri Venkatesh He referred to the earlier documents to which we have referred and claimed that the order of the Assistant Inam Commisioner was erroneous because the inams must be recorded in the name of the deity under R 7 of Sch B to the Act of 1852 and not under R 3 as was ordered by the Assistant Inam Commissioner We have already pointed out the different effect of the two Rules and proviso 6 to R 7 stated that no personal inam could be recorded permanently under R 7 The effect of this appeal was to claim on behalf of the deity a permanent recognition of its rights to the inam properties without any share on behalf of the family apart from remuneration such as the Pujadhikaris might from time to time settle in accordance With the Tahanama and the Tharav Yadi of the earlier times The Inam Commissioner acceded to this contention and after examining all the Sanads that had been produced in the case ordered that the order issued by Meherban Assistant Inam Commissioner be annulled and under Section 7 sic 785 Supplement No 2 of Act 11 of 1852 the remaining portion of this village to remain as perpetual Inam with the Devasthan of Shri Vyankatesh and the management do remain continued from generation to generation of the lineal descendants with the male descendants of Timaya Gosavi bin ie son of Ganesh Gosavi and Apatia bin ie son of Konher Gosavi The effect of all these documents therefore was to get recognition in invitum of the right of the deity as the owner It also indicated that in the family of Bapaji Buva there were the hereditary Pujadhikaris or Shebaits of the deity who were not entitled to anything more than reasonable remuneration for their services of the deity In the year 1907 when the plaintiff was still a minor his mother made a deposition as a witness She stated that there were Annachatra and Sadavarat Kulkarni Inams and other Inams but that they all belonged to the Sansthan and that there was no private or personal property at all Even the gardens were described by her as belonging to the deity and not to any individual The guardian also took the same stand throughout the minority of the plaintiff Even earlier in 1899 the father and uncle of the present appellant stated that the village Savergaon one of the items of the properties of the Devasthan was not in the private ownership of any person It was stated on this occasion as follows Except this Shri Vyankatesh deity no one else has anyright interest or ownership with regard to the village and the Sansthan We both are the managers of the aforesaid Sansthan and we have been looking after all the affairs of the Sansthan and in that connection we are carrying on the management of the aforesaid village The statement was made in Suit No 515 of 1898 Again in exhibit 700 the written statement by the guardian of the plaintiff in Civil Suit No 295 of 1920 it was stated as late as November 5 1920 as follows It is denied that Damodar Timmayya or any other particular individual owned the Balaji 786 Sansthan at any time in his individual capacity The temple of balaji belongs to the Sansthan and several villages are granted to Balaji Sansthan purely for temple purposes by Sanads granted by the British Government and the Defendant s family is appointed only the vahiwatdar The said Damodar Timaya had no separate property of his own To the same effect is the application made by Ramabai the mother of the present appellant in exhibit 702 These later documents may not bind the appellant who was a minor at the time but as late as December 1 1927 the appellant himself stated that village in question Savergaon was a Devasthan inam and was alienated to the deity Shri Venkatesh who was the owner He also referred to the family settlement of 1801 and stated that the other villages were also similarly given to the deity He observed that in the case of Devasthan inam the idol was the grantee and the real owner and since the property Had to be managed by a human beinG the so called manager therefor managed the villages on behalf of the deity He claimed only to be the manager of the village for and on behalf of the deity Shri Balaji and did not claim any private ownership At that time he referred to the Land Alienation Register and produced a certified copy of the Register to show that Shri Venkatesh was shown as the alienee exhibit 634 is the genealogy filed by the plaintiff wherein Bhagwant Annaji uncle of Damodar Timmayya wrote against the name of Timmayya that he had acquired nine villages and was the founder of Puja Naivedya Utsav Annachhatra and Sadavarat dedicated to Shri Venkatesh It was stated there that the villages were grants to the deity Similar are the admissions in the Yadi exhibit 626 dated December 15 1886 by the Mamlatdar addressed to Krishnarao Damodar and in a letter exhibit 199 by the plaintiff himself addressed to Mankarnikabai wife of Krishnarao Damodar in 1922 In several suits which others filed the defendant there was described as Shri 787 Venkatesh Balaji Sansthan Nasik through manager that is the appellant He represented as manager the owner namely the deity Lastly there is the history of this Sansthan published by the appellant himself and written from original documents supplied by him This was in 1931 The appellant in his deposition admitted that he was intimately connected with this writing and its publication This history is exhibit 642 It gives an account of the idol and the temples and describes how from time to time Peshwas and various Sardars granted villages to the Shri and dedicated them to the deity The conclusion alone need be stated because the document is a long one and the admissions are contained in numerous places in it This is what was stated The reader of the present history will have observed that the sansthan belongs to the deity and the members of the house of Timaya Maharaj are merely the managers and administrators of the same The management of it shall not be like that of a private property As a result of the Faisalnamas of the Inam Commission which are to be found in Exs 135 to 144 634 and 644 the record of rights showed the deity as the owner and the jagirs and inams as Devasthan Learned counsel for the appellant contends that these admissions do no prove anything more than this that the entire establishment of Balaji Mandir was described as a Sansthan and the ownership thereof was in the members of the family We cannot accept this contention which runs counter to the plain tenor of those documents In these documents the ownership of the family over the temple the deity and the properties of the deity is not only not admitted but is denied On the other hand the assertion always has been that the members of the family were merely the servants of the deity getting remuneration for their services and that the ownership vested in the deity and none other In view of these admissions the question of burden of proof as we have already pointed out is really 788 academic and if any burden lay upon any party it was upon the appellant to displace by cogent and convincing evidence that these admissions were erroneous and need not be accepted in proof These admissions are two fold they concern the nature of the properties in dispute and the nature of the idol Added to these are the decisions of the Inam Commissioner in respect of the villages which were recorded as Devasthan inams at the instance of Damodar who appealed against the order to record them as personal inams The value to be attached to the decisions of the Inam Commissioner had come up for consideration before the Judicial Committee in a series of cases It is sufficient to refer to only one of them In Arunachellam Chetty vs Venkatachellapathi Guru Swamigal 1 the Judicial Committee while dealing with the Inam Register for the year 1864 which had been produced for their inspection attached the utmost importance to it It observed It is true that the making of this Register was for the ultimate purpose of determining whether or not the lands were tax free But it must not be forgotten that the preparation of this Register was a great act of State and its preparation and contents were the subject of much consideration under elaborately detailed reports and minutes It is to be remembered that the Inam Commissioners through their officials made enquiry oil the spot heard evidence and examined documents and with regard to each individual property the Government was put in possession not only of the conclusion come to as to whether the land was tax free but of a statement of the history and tenure of the property itself While their Lordships do not doubt that such a report would not displace actual and authentic evidence in individual cases yet the Board when such is not available cannot fail to attach the utmost importance as part of the history of the property to the information set forth in the Inam Register The nature and quantum of the right and interest in the land was thus gathered from the Inam Registers and enquiries which preceded them 1 1919 LR 46 IA 204 789 Thus it was doubly necessary for the appellant to bring before the Court all the documents in which his title was created recognised or confirmed He has however filed only a selection and has refrained from bringing into evidence all the material in his possession which as late as 1931 was available to him We have pointed out above that in 1931 he caused a history of the Sansthan to be published and it refers to numerous documents which have not found their way into Court The learned Judges of the High Court also mentioned this fact and stated that in view of the failure of the appellant to prove conclusively that a higher title than the one made out before the Inam Commission was available to him no reliance could be placed upon such documents as had been exhibited We have to see whether this statement is correct in all the circumstances of this case The property in the case consists of eleven villages cash allowances and other urban properties to which separate reference will be made All the eleven villages were the subject of an enquiry by the Inam Commission and the decisions were uniform except in one case where a technical ground came in the way We were taken through documents relating to two such villages as indication of the kind of title enjoyed by the appellant It may be pointed out here that the appel lant himself made no distinction between one property and another and stated that all the properties were held by him under an identical title At the hearing of the appeal he attempted to show that these properties were granted to him impressed with service of the deity But that was not the case he had made out either before the District Court under the Charitable and Religious Trusts Act or in the plaint filed in this case It is not open to him now to change his plea with regard to his ownership and the case must be decided only on the contention that the properties were private The first batch of documents to which our attention was drawn concerns mostly Vihitgaon It consists of Exs 200 to 206 The first four are letters written to Mukadams Kamavisdars and Mamlatdars to continue 100 790 the Mokasa Sahotra or Inam to Timayya to whom the village was given as Madade Mnash The earliest of them is of 1714 and the last is of 1755 Exs 204 and 206 however mention even earlier sanads and the latter particularly mentions the original grant of the ruler Mahomed Shah under his own seal Those sanads however have not been produced as also some of the sanads of the Peshwas which were mentioned by the Inam Commission in exhibit 135 None of these documents shows the terms on which the original grant was made and in view of the meagreness of this evidence and its inconclusive nature the High Court was justified in accepting the finding of the Inam Commission that the grant was to the Devasthan and constituted a Devasthan Inam The next village of which the documents were shown to us is Belatgaon Here too the documents are of later dates the original grant not being produced In connection with this village also the Inam Commission held that the village was a Devasthan inam and the documents produced in this case do not show anything to the contrary These documents are merely letters and so called sanads and direct the Mukadams etc to pay a share of the revenue to Timayya Learned counsel for the appellant stated that the documents in respect of the other villages were also of similar character On an examination we have found them to be so In all the order made by the Inam Commission in respect of each and every village there is a reference to other sanads of earlier dates which have not been produced before us The respondents bad in the Court of First Instance served a notice upon the appellant to produce all the sanads admittedly in his possession and mentioned in exhibit 642 but the appellant avoided doing so by pretending that the demand was vague In this view of the matter it cannot be said that there has been a misconstruction of any documents On the other band the judgments in the two Courts below have proceeded on the ground that the appellant having an opportunity to prove his case against the findings of the Inam Commission and the admissions made from time to time had suppressed 791 the original documents conferring villages upon him as he alleged and had produced letters and so called sanads of later dates which were no more than mere pay orders to continue the privilege which had been granted by the rulers in the earlier documents We do not therefore find any misconstruction of the documents such as have been produced and we hold that the admissions and the revenue records remain uncontradicted This brings us to the cash allowances which were granted from the villages to the predecessors in title of the appellant These documents number a few hundreds They too are merely letters written from time to time to the Mukadams Kamavisdars and Mamlatdars to pay the arrears of annuities Varshashan Aivaj to Haribakthi Parayana Rajeshri Timayya Gosavi In almost all the documents there is a reference that the original sanads had been filed but the original sanads have not been produced The respondents on the other hand produced some of these documents to show that the original grant was to the Devasthan and that in some of them there is specific mention that it was for the expenses of Shri These are Exs 228 229 639 230 231 and 233 The respondents connect these documents with the history of Shri Venkatesh Balaji Sansthan exhibit 642 to show that similar documents exist with regard to the grant of all the villages and the cash allowances but have not been produced The appellant also admitted in exhibit 151 that his ancestors had received these grants in order to do Puja Archa Sadavarat etc of the deity The two Courts below have from these circumstances drawn the conclusion that the grant cannot be considered as personal but must be regarded as one made in favour of the deity or the Sansthan It is for this reason also that the appellant stated that all the properties including the temple and the idol go in the name of Sansthan and that this word was used compendiously to describe the properties and the Vahiwatdar In our opinion the appellant was conscious of the weakness of his case because the grants to Sansthan or to the Shri could not be regarded as grants to an 792 individual and he therefore included himself and the deity in the expression Sansthan so as to be able to show that the grants to the Sansthan were grants to him as much as to the deity The appellant however contended that this case was covered by the decision of the Privy Council in Babu Bhagwan Din vs Gir Har Saroop 1 That case was entirely different There the grant which was a single one was made to an individual and his heirs in perpetuity from generation to generation and there was no evidence otherwise The Judicial Committee interpreted the grant in favour of the individual and stated that it was made to one Daryao Gir and his heirs in perpetuity It observed Had it been intended as an endowment for an idol it would have been very differently expressed the reference to the grantee s heirs and the Arabic terminology naslan ba da naslin wa batnam ba da batnin descendant after descendant and generation after generation are not reconcilable with the view that the grantor was in effect making a wakf for a Hindu religious purpose even if it be assumed that this is not otherwise an untenable hypothesis Though in that case the origin of the idol was not completely traced the grant itself disclosed the existence of a sanyasi with an idol in a mud hut to whom and not to the little temple the grant in effect was made The history of this deity is well known and it shows the manner in which the grants were made from time to time To apply that case to the facts here is impossible In our opinion the principle to apply to this case is the one stated by the Privy Council in Srinivasa Chariar vs Evalappa Mudaliar2 It was there observed Their Lordships must dissent entirely from the view that where the discoverable origins of property show it to be trust property the onus of establishing that it must have illegitimately come into the trustee s own right rests upon the beneficiaries Upon the contrary the onus is heavily upon the trustee to show by the clearest end most unimpeachable evidence the the legitimacy of his personal acquisition 1 1939 LR 67 IA 1 2 1922 LR 49 IA 237 793 The appellant next argued that those properties in respect of which the High Court felt disposed to giving a finding that they were private should at least be declared as private properties He also made an application in this Court for joining the deity as a party to the appeal and requested that this Court should send down an issue for a finding by the Court of First Instance in the presence of the deity whether these properties were private We shall deal with these matters a little later because it is necessary at this stage to decide whether the public have any right of worship in the temple Both the Courts below have agreed that the deity and the temple were public The High Court correctly pointed out that the matter has to be judged in accordance with the dictum of Varadachariar J in Narayanan vs Hindu Religious Endowments Board 1 In that case which arose under section 9 of the Hindu Religious Endowments Act the definition of a temple meant a place used as a place of public religious worship and dedicated to or for the benefit of or used as of right by the Hindu community or any section thereof as a place of religous worship The learned Judge observed as follows The question of intention to dedicate the place for the use of the public or of the user by the public being as of right is necessarily a matter for inference from the nature of the institution and the nature of the user and the way the institution has been administered once a long course of user by the public for the purpose of worship is established and the fact of a separate endowment in trust for the deity is also proved it is fair to infer that the institution must have been dedicated for user by the public unless the contrary is established particularly when the character of the temple its construction the arrangement of the various parts of the temple and the nature of the deities installed there are similar to what obtains in admittedly public temples Similarly when user by the public generally to the extent to which there is a worshipping public in the locality is established it is not unreasonable to 1 AIR 1938 Mad 209 794 presume that the user by the public was as of right unless there are circumstances clearly suggesting that the user must have been permissive or that the authorities in charge of the temple have exercised such arbitrary power of exclusion that it can only be ascribed to the private character of the institution The two Courts below reached the conclusion that the public had a right in the temple and the idol from a number of considerations Shortly they are as follows The building of the temple is public in character inasmuch as the staircase leads straight to the idol and the public are admitted throughout the day between 7 am and 10 pm There is no evidence to show that the public or any member of it were ever excluded from the worship There is only one instance when a member of the family was excluded but that was because he had used abusive language towards the mother of the present appellant Indeed the public are invited to worship the deity and no gift is ever refused The merchants of the locality keep a separate khata in the name of the deity in which they set a part a portion of their earnings as kangi which is paid regularly to the temple The extent of the ceremonies performed at the temple also indicates the existence of a deity in which the public are interested rather than a family deity There are celebrations Utsavs etc and daily a large number of Brahmans and others are fed and at the time of the festivals all the visitors are also fed The deity also goes out on such occasions in processions through a marked route and there are ten carriages in which it rides for ten days These festivals are celebrated with great e clat and the public not only of Nasik but of other parts of the country freely join in them Even the daily routine of the deity is of a form uncommon in the case of family deities The appellant himself admitted that the idol was being worshipped with Rajopchar It may be mentioned that for playing music or performing the services the deity has conferred hereditary inams upon those who attend to them There is also a collection box placed at the temple where the public who are so minded are invited to place their offerings 795 No doubt the Privy Council in Babu Bhagwan Din vs Gir Har Saroop 1 stated that the mere fact that offerings were accepted from the public might not be a safe foundation on which to build an inference that the deity was public Still the extent to which the offerings and the gifts go may be a fair indication not merely of the popularity of the deity but of the extent of the public right in it As has been pointed out above the Judicial Committee was dealing with a single grant which was made to the Mahant in per petuity and the temple itself was a mud hut Here the temple covers several acres of land and has a vast structure There is a Sabha Mandap which accommodates 600 persons It is inconceivable that such a big temple was built only for the use of the family It indicates that there was an invitation to the public to use it as of right and user and continuous user for 200 years without let or hindrance by the public has been proved in the case beyond doubt It is also unusual for Rulers to make grants to a family idol The fact that many Rulers have made grants of land and cash allowances to the deity for sevapuja etc is itself indicative of the public nature of the trust We think that the extensiveness of the temple and of grants to it are pertinent circumstances to be taken into account in judging the nature and extent of the public right It may be remembered that in the documents to which we have referred in an earlier portion of this judgment there is reference to special endowments for festivals These endowments would not be made if the deity was a family deity In the Gazetteer dealing with Nasik District there is a full description of the temple and the deity Extracts from it have been quoted by the two Courts below and they show that the temple is a public one Indeed the history of the deity written at the instance of the appellant himself exhibit 642 indicates the public right in the deity As against these the appellant contended that there were other circumstances which indicated that the deity was a family diety He examined Dr Kurtkote 1 1939 L R 67 I A 1 796 who gave some reasons for an opinion that the temple was not a public one but a mere Deva ghar He stated that the idol of Balaji did not appear to have been firmly installed that it was installed on an upper floor that householders resided in the temple and that daily worship was suspended when there was a birth or death in the family and last of all he stated that the deity being movable must be regarded as a family deity It may be pointed out here that the deity is sometimes invited to private residences at the time of festivals for dinner This circumstance was also pleaded as indicating that the temple is private and the deity a family deity We shall now briefly examine these reasons to see whether they outweigh the evidence of the public character of the deity which we have analysed above We begin with a very small point which was made that the temple of Balaji at Nasik has no dome or Kalas This is an admitted fact but vasudev PW 12 admitted that there was no dome or Kalas at Balaji temple at Devalgaon Raja which is a public temple So also other temples mentioned in the case It seems that nothing really turns upon the existence of a dome or Kalas and no authority has been cited before us to show that it is a conclusive circumstance in deciding that the temple is public It must be remembered that this idol was found in a river and did not need consecration ceremonies which are necessary for a new idol which is set up in a new temple It was first placed inside the house of Bapaji Buva at Juniar and was removed from that place as a result of instructions vouchsafed by the deity itself to Bapaji Buva s successor It was then installed at Nasik Where a big temple has grown No doubt in some portions of this building the family of the Pujadhikhris reside without any objection from any person The extensiveness of the building makes it impossible to think that they are residing within the temple or that the Thakurbari is within their private residence Indeed the description of the temple as given in the Gazetteer clearly shows that the temple in quite distinct 797 from the residential quarters and that also is the evidence of the appellant himself With regard to the installation of the idol on the first floor we have already mentioned that the staircase from the ground leads direct to the sanctum It was however admitted by Dr Kurtkote that the deity at Bindu Madhav temple at Benares in also installed on the upper storey though he explained that beneath the idol there is a solid stone pedestal which runs right from the ground to the first floor No question was put to him as to whether the deities there were firmly installed or moveable He however admitted that the text of Prathista Mayukha did not mention that the idol should not be installed on an upper storey In our opinion in the absence of any text prohibiting the installation of the deity on an upper floor we cannot draw any inference that the temple is private The real ground on which the claim has been made that the deity is a family deity is that it is capable of being moved from one place to another and in fact is so moved Evidence was led to show that in the early history of this temple the Pujadhikaris took the deity on visits to the various ruling chiefs Documents have been filed to show how arrangements were made for the journey of the deity and instructions issued to all concerned to give all facilities for it It is also in evidence and is indeed admitted that when the deity is invited on festive occasions to private residences a substitute idol is also left at the main temple for the public to worship Further all these removals are temporary and the deity is brought back and installed in its abode afterwards The deity at the Jaganath temple at Puri is also shifted for periodic processions and is brought back to its place Dr Kurtkote stated that the installation of an idol can be either in a movable form chala or stationary form sthira and that it is so mentioned in the Prathista Mayukha He also admitted that it could not be said that the idol was not installed because it could be moved from one place to another No other authority was cited before us at the hearing as to whether s a idol cannot at all be 101 798 moved from the place where it is installed even though it may be installed in a movable form chala There are however cases in which this matter has come up for consideration before the Courts In Ram Soondur Thakoor vs Taruck Chunder Turkoruttun 1 there was a destruction of the temple by the erosion of the river on the banks of which the idol was installed The suit was filed by the plaintiffs for a declaration of their right to remove the idol to their own house and to keep it there for the period of their turn of worship This claim was decreed On appeal Dwarknath Mitter and Ainslie JJ interfered only to the extent that the lower Court ought to have defined the precise period for which the plaintiffs were entitled to worship the idol before it could make the declaratory decree which it had passed in their favour They also directed that if it was found by the lower appellate Court that the plaintiffs and the defendants were jointly entitled to worship the idol during any part of the period mentioned by the plaintiffs thelower appellate Court should not allow the plaintiffs to remove the idol to their own house at Khatra for that portion of time It appears from the judgment that though the plaintiffs were allowed to remove the idol to their own house they were to re convey it at their own expense to the place where it was at the time of the institution of the suit The learned Judges however qualified their judgment by saying that it was not contended in the case before then that the idol was not removable according to the Hindu Shastras In Hari Raghunath vs Anantji Bhikaji 2 the temple was a public one It was held by the High Court that under Hindu law the manager of a public temple has no right to remove the image from the old temple and instal it in another new building especially when the removal is objected to by a majority of the worshippers It is interesting to note that in this case Dr P V Kane appeared and in the course of his argument he stated as follows According to the Pratishtha Mayukha of Nilkantha and other ancient works an image is to 1 1873 19 Weekly Reporter 28 2 Bom 466 799 be removed permanently only in case of unavoidable necessity such as where the current of a river carries away the image Here the image is intact It is only the temple that is dilapidated For repairing it the image need not necessarily be removed Even if it may be necessary to remove the image that will be only temporarily The manager has under Hindu law no power to effect permanent removal of an image in the teeth of opposition from a large number of the worshippers In the instances cited by the appellant worshippers had consented to the removal Permanent removal of an image without unavoidable necessity is against Hindu sentiment italics supplied Shah J Crump J concurring observed as follows It is not disputed that the existing building is in a ruinous condition and that it may be that for the purpose of effecting the necessary repairs the image may have to be temporarily removed Still the question is whether the defendant as manager is entitled to remove the image with a view to its installation in another building which is near the existing building Taking the most liberal view of the powers of the manager I do not think that as the manager of a public temple he can do what he claims the power to do viz to remove the image from its present position and to instal it in the new building The image is consecrated in its present position for a number of years and there is the existing temple To remove the image from that temple and to instal it in another building would be practically putting a new temple in place of the existing temple Whatever may be the occasions on which the installation of a new image as a substitute for the old may be allowable according to the Hindu law it is not shown on behalf of the defendant that the ruinous condition of the existing building is a ground for practically removing the image from its present place to a new place permanently We are not concerned in this suit with the question of the temporary removal which may be necessary when the existing building is repaired 800 The case is an authority for the proposition that the idol cannot be removed permanently to another place because that would be tantamount to establishing a new temple However if the public agreed to a temporary removal it could be done for a valid reason In Pramatha Nath Mullick vs Pradyumna Kumar Mullick 1 the deed of trust created an injunction against the removal of the deity The following quotation from that deed of trust shows the powers of the manager Shall be for ever held by the said Jadulal Mullick his heirs executors administrators and representatives to and for the use of the said Thakur Radha Shamsunderji to the intent that the said Thakur may be located and worshipped in the said premises and to and for no other use or intent whatsoever provided always that if at any time hereafter it shall appear expedient to the said Jadulal Mullick his heirs executors administrators or representatives so to do it shall be lawful for him or them upon his or their providing and dedicating for the location and worship of the said Thakur another suitable Thakur Bari of the same or greater value than the premises hereby dedicated to revoke the trusts hereinbefore contained and it is hereby declared that unless and until another Thakur Bari is provided and dedicated as aforesaid the said Thakur shall not on any account be removed from the said premises and in the event of another Thakur Bari being provided and dedicated as aforesaid the said Thakur shall be located therein but shall not similarly be removed therefrom on any account whatsoever The Privy Council analysed this provision and stated that the last condition made the idol immovable except upon providing for the dedicatee another Thakur Bari of the same or larger value It observed The true view of this is that the will of the idol in regard to location must be respected if in the course of a proper and unassailable administration 1 1925 LR 52 IA 245 801 of the worship of the idol by the Shebait it be thought that a family idol should change its location the will of the idol itself expressed through his guardian must be given effect to Their Lordships ordered the appointment of a disinterested next friend who was to commune with the deity and decide what course should be adopted and later the instructions of the deity vouchsafed to that representative were carried out In this case there was a family deity and there was a provision for removing the idol to another better and more suitable Thakur Bari if it appeared necessary The wishes of the deity were considered and consulted The case however is not quite clear as to whether in all circum stances the idol can be removed from one place to another The last case on the subject is Venkatachala vs Sambasiva 1 The headnote quite clearly gives the decision and may be quoted here Where all the worshippers of a temple who are in management of it decide to build a new temple the old one being in ruins and the site on which it stood becoming insanitary and inconvenient for worshippers then unless there is clear prohibition against their demolishing the old temple and building a new temple the Court is not entitled to prevent the whole body from removing the temple with its image to a new site in the circumstances Devadoss J quoted passages from Kamika Agama and referred to Prathista Mayukha by Nilakanta Purva Karana Agamam and Nirnaya Sindhu He however relied upon certain passages from Purva Thanthiram by Brighu Kamika Agama Siddhanta Sekhara and Hayasirsha Pancharatra and came to the above conclusion The effect of the decision is that the whole body of worshippers if they are of one mind can even permanently remove an idol to another habitation In the present case the idol was not permanently removed except once when it was taken away from Junnar and installed at Nasik As we have already 1 A IR 1927 Mad 465 52 MLJ 288 802 pointed out that was at the behest of the deity itself Afterwards the deity which is installed in a removable form chala has been temporarily removed for purposes of processions invitations to dinner and visits to other parts of India so that worshippers may have a chance of making their devotion This has continued for over 250 years and has not been objected to at any time Indeed a huge concourse of worshippers always followed and follows the deity every time it is taken out temporarily for the purpose of affording the votaries chances of worship at close quarters This appears to be a custom which has received recognition by antiquity and by the consent of the worshipping public it may be noted that the deity is brought back to the old site after its temporary sojourn at other places and that further during the absence of the deity a substitute idol is placed so that the dedicatee is never out of possession of the temple In view of these circumstances and the cases to which we have referred and in view further of the fact that no text or authority was cited against such course of conduct with the consent of the worshipping public we do not see any reason for holding that the temple was private and the deity a family idol The appellant raised a special argument in respect of certain properties which he stated were private He relied upon the observations of the learned Judges of the High Court that they were inclined to hold that these properties were private but refrained from giving a declaration in view of the fact that the deity had not been joined These properties are jat inams recently built properties namely the Balaji temple and the Shree Theatre and an allowance which goes in the name of Kulkarni commutation amounting to Rs 24 per year The difficulty in the way of the appellant is real He refrained from joining the deity if not as a necessary at least as a proper party to the suit If he had joined the deity and the deity was represented by a disinterested guardian necessary pleas against his contention could have been raised by the guardian and it is likely that some evidence would also have been given The appellant seeks to 803 cover up his default by saying that the suit was one under section 1 r 8 of the Code of Civil Procedure and that the Hindu public was joined and the deity was adequately represented In a suit of this character it is incumbent to have all necessary parties so that the declaration may be effective and binding It is obvious enough that a declaration given against the interests of the deity will not bind the deity even though the Hindu Community as such may be bound The appellant would have avoided circuity of action if he had acceded to the very proper request of the respondents to bring on record the deity as a party He stoutly opposed such a move but at a very late stage in this Court he has made an application that the deity be joined It is too late now to follow the course adopted by the Privy Council in Pramatha Nath Mullick vs Pradyumna Kumar Mullick 1 and Kanhaiya Lal vs Hamid Ali 2 in view of the attitude adopted by the appellant himself and the warning which the trial Judge had issued to him in his order There is yet another reason why the case cannot be re opened because the appellant himself did not choose to make any distinction between one property and another as regards the claim of his ownership He stated that each item of property was acquired and owned in the same manner as another Arguments were addressed with regard to the Balaji Mandir which is situated on section Nos 1353 and 1354 This land was granted to one of the appellant s predecessors by exhibit 571 by the Peshwa At that time 3 bighas of land were given to Bapaji Buva son of Timayya because he was a worthy and respectful Brahman for the express purpose of building a temple No doubt in Exs 878 and 153 the name of the Vahiwatdar has been mentioned and the latter is a sanad of the Governor of Bombay confirming the grant free from land revenue The original grant was obviously made not to the Brahman concerned but for the express purpose of building a temple upon the land We have already held that the public have a right in the deity and the temple is also public and 1 1925 LR 52 IA 245 2 1933 LR 66 IA 263 804 that therefore the grant must be regarded also as part of the property of the deity It is significant that after the temple was built with borrowings from others a sum of no less than Rs one lakh was paid the Peshwas and other Rulers to satisfy them The finding of the learned Judges of the High Court could not therefore given in the absence of the deity and we think that we should only say that in view of the case as pleaded the declaration should have been re fused without any comments adverse to the deity A Court should not in a case which goes by the board on a cardinal point decide matters which cannot arise in it but may be pertinent in another case between different parties We are however clear that no declaration can now be granted in respect of this property The next property which was specially mentioned for our consideration is the Shree Theatre in which the appellant claims to hold a third share Here also the extracts from the property register have been filed and the appellant has drawn our attention to exhibit 290 which is a deed of purchase and exhibit 691 the permission by the Municipality to build upon the land It was necessary for the appellant to show that this Theatre was built from monies derived from a private source and not from the income of the Devasthan He has not furnished satisfactory evidence and in describing the source of money he referred to the sale of one property the price whereof according to him was utilised for the Theatre It however appears from the record of the case that with that money Balaji Vihar was purchased and the case made before us was that it was the sale proceeds of Balaji Vihar which were used to build the Theatre If that be so then the evidence to connect the Theatre with Balaji Vihar ought to have been tendered and a plea to that effect taken We cannot accept the argument in lieu of plea and evidence and we think that the appellant has neglected to bring the necessary evidence to reach a finding This matter also suffers from the same defects namely the failure to join the deity as a party and also not waking a distinction between one 805 kind of property and another Here too the High Court should not have expressed any opinion adverse to the deity without the deity being a party The same has to be said of items 3 to 10 in the first part of Sch A annexed to the plaint and three survey numbers of Belatgavan Deolali and other jat inams No useful purpose will be served in examining in detail the evidence relating to these properties in the absence of the deity It may also be pointed out that the appellant maintained no separate accounts for these properties and made no distinction between them and the other properties to which we have referred earlier A trustee must not mix private property with trust property because if he does so he undertakes a heavy burden of proving that any particular property is his as distinct from the trust See Lewin on Trusts 16th Edn p 225 To the same effect are the observations in Srinivasa Chariar vs Evalappa Mudaliar 1 The result is that the declaration which the appellant sought in his suit that the temple the deity and plaint properties were all of private ownership was rightly refused by the Courts below The trial Judge gave a declaration that defendants 1 to 4 are en titled to custom ary worship and maintenance Strictly speaking such a finding was not necessary in a case of this character and other matters concerning rights of individuals should not have been gone into in a suit filed under section 53 of the Act The appellant is partly to blame He set up a case of private ownership with all rights centred in himself and defendants 1 to 4 therefore not only raised the plea that the appellant was a mere manager but also asserted their rights in the property We think that the Courts below might have refrained from pronouncing upon the rights of the defendants because all that they had to do was to decide whether the property was trust of a public nature We however do not wish to give any direction in the matter because the suit as a whole as laid by the plaintiff has been dismissed and to make any observations might lead to further litigation which is not in the interests of the deity 1 1922 L R 49 IA 237 102 806 Respondents 6 and 7 raised before us the question of costs They stated that the trial Judge had given two sets of costs which was changed to one set by the High Court These respondents should have cross objected on this point against the judgment of the High Court and in the absence of any such cross objection no relief can be granted to them For the same reason no relief can be given to respondent 7 in respect of whom the finding that he bad no right of performing the seva and getting emoluments attached to that right as respondents 1 to 4 has not been vacated as was done in the case of respondent 6 In view of our observations that these matters were alien to the suit which had been filed we do not propose to deal with them In the result the appeal is dismissed The appellant will personally pay the costs of Respondent 1 The other set of respondents will bear their own costs Appeal dismissed

The appellant filed a complaint against the respondent and another under ss 385 389 500109 of the Indian Penal Code The Trial Court found that there was no conspiracy to defame the appellant or to extort money from him and a charge under section 500 Indian Penal Code only was framed against the respondent It was found that the facts mentioned in the charge were not stated in the complaint The Trial Court holding that a separate complaint should have been filed in respect of the offence with which the respondent was charged acquitted him The High Court rejected the appellant s application for revision of the order of the Trial Court with the remark rejected as no offence The appellant appealed by special leave Held that the offence charged was a separate offence although of the same kind from the offence in respect of which the facts had been stated in the complaint For this separate offence a separate complaint should have been filed in accordance with the provisions of section 198 of the Code of Criminal Procedure The Provisions of section 198 of the Code of Criminal Procedure are mandatory In appeal the Supreme Court could do what the High Court could have done The order of acquittal of the respondent was a nullity and the proper order should be one of discharge

Appeals Nos 519 to 521 of 1958 Appeal by special leave from the decision dated January 41955 of the Labour Appellate Tribunal of India Calcutta in Appeals Nos 69152 and Cal 7052 AND Civil Appeal No 521 of 1958 Appeal by special leave from the decision dated January 4 1955 of the Labour Appellate Tribunal of India Calcutta in Appeal No Cal 7052 Ram Lal Anand and Naunit Lal for the appellant in CA No 519 of 58 H N Sanyal Additional Solicitor General of India Ram Lal Anand and Naunit Lal for the appellants in CA No 52058 and respondents in CA NO 521 of 58 M C Setalvad Attorney General for India C K Daphtary Solicitor General M K Ramamurthi Syed Mahummud B K Garg Miss A B Varma and Janardan Sharma for respondent No 1 in CA Nos 519 and 520 of 58 and appellant in CA No 521 of 58 Hardyal Hardy and M B Krishna Pillai for respondent No 2 in CAs Nos 519 520 of 58 September 24 The judgment of Sinha and Gajendragadkar JJ was delivered by Gajendragadkar J Subba Rao J delivered a separate judgment JGAJENDRAGADKAR J These three appeals arise out of an industrial dispute between the Punjab National Bank Ltd hereinafter called the Bank and two sets of its employees represented by the All India Punjab National Bank Employees Federation hereinafter called the Federation and the UP Bank Employees Union hereinafter called the Union respectively 811 On July 2 1951 this dispute was referred by the Central Government for adjudication to the industrial tribunal of which Mr A N Sen a retired Judge of the Calcutta High Court was the sole member It raised two issues The first was whether the 150 workmen mentioned in Sch 11 attached to the reference had been wrongfully dismissed by the Bank and the second had reference to the claim for reinstatement and payment of wages and allowances from the date of dismissal to the date of reinstatement The reference thus made has gone through a long and protracted career and the final decision of the dispute would be reached after we dispose of the present appeals In order to appreciate the points raised for our decision in these appeals it is necessary to indicate briefly at the outset the salient points of controversy between the parties the findings made by the original tribunal the conclusions reached by the Labour Appellate Tribunal in its interlocutory and final judgments and the decision of this Court in the appeal which had been brought before it by the Bank against the interlocutory judgment of the Labour Appellate Tribunal The 150 employees whose dismissal has given rise to the present dispute are spread over several branches of the Bank 52 of them work at its head office in Delhi 15 in Bombay 73 in East Punjab and 10 in UP 140 workmen in the first three areas are represented by the Federation while the last 10 in UP are represented by the Union All of these employees took part in strike which according to the Bank were illegal The strikes in which the two respective groups of workmen took part were however for different reasons The strike in which the Federation took part was the result of the suspension by the Bank of its typist Sabharwal employed in the Delhi Branch of the Bank on April 17 1951 It appears that Sabharwal who was the Secretary of the Punjab National Bank Employees Union Delhi had applied for leave for seven days on April 3 1951 but his application was rejected even so he absented himself from duty and went to Bombay As soon as he resumed his duties on 812 April 14 1951 he was supplied with a written chargesheet for absence without leave which he refused to accept It was then sent to him by registered post and on April 17 he was suspended This suspension was followed by an immediate pen down strike at the head office of the Delhi Branch subsequent to which the Bank suspended 60 other employees This led to a general strike in Delhi and many other branches and it commenced at different dates from April 18 to 20 1951 On April 21 22 1951 the Bank issued notices calling upon all striking members of the staff to report for duty by 10 a m on April 24 1951 and it warned them that if they did not comply with the notice it would be taken that they had voluntarily ceased to be its employees and their services would be deemed to have terminated from that date This was followed by another notice on April 24 which announced that the strikers who had failed to report for duty as aforesaid had ceased to be the employees of the Bank from April 24 1951 An option was however given to the strikers who were still willing to rejoin duty to apply in that behalf and explain their action in staying away It is common ground that the 140 employees represented by the Federation who had taken part in the strike were dismissed by the Bank for absence due to the strike That is the genesis of the dispute between the Bank and the Federation in relation to the 140 employees of the Bank The strike in which the remaining 10 employees of the Bank from the UP branches are concerned commenced on April 23 1951 This strike was in pursuance of the strike notice served by the Union on the Bank on April 22 1951 This pen down strike was a part of the general strike which affected not only the Bank but also the Allahabad Bank and other banks in the UP region The Regional Labour Commissioner of the UP Government who intervened suggested that the general strike should be called off and recommended that some of the demands made by the strikers should be referred to the industrial tribunal for adjudication in accordance with this request on April 30 1951 the strike committee decided to call off the strike and 813 Advised workmen to join duty from May Is 1951 This advice however did not reach all the branches in time with the result that some of the employees of the Bank offered to resume work on May 31951 The other banks in the UP region took back their employees who rejoined on May 3 but the Bank refused to take back its employees on the ground that they had not offered to rejoin on or before the date fixed and so it proceeded to dismiss them The dismissal of the said 10 employees is also the subject matter of the present reference That is bow the reference is concerned with the dismissal of 150 employees of the Bank in all The strikes in question which affected the head office and the large number of branches of the Bank operating in more than one State and a very large number of its employees caused public concern and so the Prime Minister and the Labour Department of the Central Government thought it necessary to intervene and a conference was arranged at New Delhi between the officers of the Government and the Bank To this conference the representatives of the Federation or the Union were however not invited This conference led to an agreement as a result of which the Bank undertook to reinstate all its employees who had taken part in the strikes except those to whose reinstatement it had positive objections This however was subject to the reservation that the number of such employees was not to exceed 150 and that their case would be referred by the Central Government for adjudication by a tribunal This agreement was the result of several meetings between the representatives of the Bank and the Labour Department of the Central Government and it was reached on or about May 9 1951 Thereafter the head office of the Bank sent a circular letter to all its branches calling for names of the employees who according to the branch managers could not be considered for reinstatement The list of such employees received by the head office from the respective managers of its branches was examined by the head office and the Bank then compiled the 103 814 list of 150 workmen whom it was not prepared to reinstate This list was in due course communicated by the Bank to the Central Government and in pursuance of the agreement aforesaid the Central Government referred the dispute in respect of the said 150 workmen for adjudication before the tribunal by its notification issued on July 2 1951 Before the tribunal the case for the Federation and the Union was that the refusal of the Bank to take back the 150 workmen in question was a part of the concerted and deliberate plan adopted by the management of the Bank for victimising the President the Vice President the General Secretary and Secretaries and Treasurer of the Federation and of the working committees of the different trade unions of workers and the members of the strike committees and it showed that the sole object of the Bank in refusing to take back those employees was to teach a lesson to the Federation and the Union and to penalise all active trade union workers who supported the cause of the employees On the other hand the Bank contended that the strikes in which the 150 employees had participated were illegal and had been resorted to not with a view to obtain relief for the employees but with a view to paralyse the business of the Bank and to scare away its customers The Bank further alleged that the said 150 employees were guilty of unpardonable acts of violence intimidation coercion and victimisation The tribunal gave two interim awards by which it directed the Bank to make some payments to the 150 employees by way of allowance pending the final disposal of the dispute On February 2 1952 the tribunal pronounced its final award It held that the strikes were illegal and that the Bank was entitled to dismiss the employees solely on the ground that the said employees had participated in an illegal strike On this view the tribunal did not think it necessary to allow evidence to be given on the question as to whether some of the strikers were guilty of specific subversive or violent acts It also did not allow 815 evidence to be led by workmen in support of their plea that their dismissal was the result of victimisation It decided the dispute on the sole ground that the strikes were illegal and participation in illegal strikes justified the dismissal of the employees Even so the tribunal made an order directing the Bank to pay certain amounts to the said employees on compassionate grounds The direction issued by the tribunal for the payment of the said amount was challenged by the Bank by its appeal No 25 of 1952 before the Labour Appellate Tribunal hereinafter called the appellate tribunal whereas the decision of the tribunal that the 150 employees were not entitled to reinstatement was challenged by the two sets of employees by two different appeals Nos 69 and 70 of 1952 The appellate tribunal recorded its interlocutary decision on September 22 1952 As a result of this decision the dispute was set down for further hearing on the points indicated by it It was urged by the Bank before the appellate tribunal as a preliminary objection that the appeals preferred by the employees were incompetent This objection was overruled The appellate tribunal then proceeded to consider two questions of law 1 whether an employer has the right to dismiss a workman for his absence from duty by reason of his mere participation in an illegal strike and 2 if he has can the tribunal scrutinise the exercise of that right and grant relief to such a workman when it comes to the conclusion that the right has been exercised capriciously or by unfair labour practice The appellate tribunal held that the strike started by the Federation was illegal under section 23 b read with section 24 1 of the 14 of 1947 herein after called the Act It appears that on February 21 1950 an industrial dispute between the Bank and the Federation had been referred to the arbitration of Mr Campbell Puri and whilst the proceedings in the said reference were pending before the tribunal the strike was commenced on or about April 17 1951 That is why the strike was illegal The appellate tribunal however held that even if mere participation 816 in an illegal strike by workmen is assumed to give the employer certain rights against the striking workmen the employer can waive these rights that is to say rafrain from exercising those rights against the workmen According to the appellate tribunal such waiver or relinquishment can be inferred from conduct and it thought that the conduct of the Bank evidenced by the agreement which it reached with the Central Government on or about May 9 1951 unambi guously proved that it had waived or relinquished its rights to take any penal action against its employees merely for their participation in the illegal strike In other words the effect of the findings of the appellate tribunal was that though the strike was illegal by its conduct the Bank had precluded itself from exercising its alleged right to dismiss its employees for their participation in such an illegal strike The appellate tribunal also considered the general question of law as to whether participation in an illegal strike can be said to deserve dismissal of the striking workmen It took the view that an illegal strike absolves the liability of the employer to pay to its employees wages during the period of absence of the striking workmen but that it cannot be stated as a general proposition that participation in an illegal strike would by itself necessarily involve the penalty of dismissal The Bank attempted to justify the dismissal in the present case by urging that the 150 employees were guilty of violent or subversive acts but the appellate tribunal held that it was not open to the Bank at that stage to plead in justification of their dismissal any such acts of violence or subversive acts There is abundant authority observed the appellate tribunal for the proposition that an employer can justify before the tribunal a dismissal only on the ground on which he purported to dismiss him and not a ground different from it That is why in the end the appellate tribunal held that the dismissals were wrongful The appellate tribunal had no doubt that mere participation by a workman in an illegal strike or his absence due to such participation does not entitle an employer to dismiss him and that it is 817 open to a tribunal to order reinstatement in a proper case Having reached this conclusion the appellate tribunal observed that though in the case of wrongful dismissals the normal rule is that the employees wrongfully dismissed should be reinstated it would nevertheless be necessary to consider the question of reinstatement in the case of each individual employee in the light of requirements of social justice and fair play for which the employee claims and industrial peace and discipline which the employer emphasizes In order to decide the cases of the several employees from this twofold point of view the appellate tribunal thought it was necessary to allow the parties to lead additional evidence on relevant points The employees wanted to lead evidence in support of their case of victimisation and they were allowed to do so by the appellate tribunal The Bank wanted to lead evidence on five points The appellate tribunal held that evidence on items 3 and 5 would be irrelevant and it thought that item 4 was too vague That is why the Bank was allowed to lead evidence only in respect of item 2 and some heads mentioned in item 1 In the result opportunity was given to the parties to lead evidence on the following points 1 victimisation 2 past service records of the 150 employees 3 conduct of those 150 employees or any of them during the strike confined to acts of violence intimidating loyal workers and acts subversive of the credit of the Bank 4 employment which any of those 150 persons got after this dismissal the period during which they were in employment and the wages or emoluments they received The appellate tribunal then directed the Bank to file a statement within a month giving particulars of the acts confined to the matters on which the Bank was allowed to lead evidence in respect of each one of the 150 employees after supplying a copy of the same one to the Federation and one to the Union In the meanwhile the appellate tribunal directed the Bank to make interim payments to the employees as indicated in its order This interlocutary judgment was challenged by the Bank before this Court by its appeal under article 136 818 of the Constitution On behalf of the Bank it was urged that the conclusion of the appellate tribunal that the Bank had condoned the illegal strike by its workmen was unjustified and that it was open to the Bank to rely upon the illegal strike as justifying the dismissal of the said workmen The case of the Bank thus was that the order passed by the appellate tribunal setting down the dispute for further enquiry was illegal and should be set aside The judgment of this Court delivered by Patanjali Sastri C J shows that this Court thought it unnecessary to express any opinion on the question of condonation or waiver of the illegal strike because in its opinion even if there was no such condonation or waiver and even if it was open to the Bank to rely upon the illegal strike as a valid ground for dismissing its employees there was no doubt that the order of dismissal was illegal having regard to the provisions of section 33 of the Act The said section furnished a short answer to the Bank s contention that the appellate tribunal had no jurisdiction to order reinstatement of the 150 workmen In other words just as the strike of the employees was illegal so was the order of dismissal passed by the Bank illegal and for a similar reason section 23b of the Act made the strike illegal while section 33 of the Act made the dismissal also illegal In the result the appeal preferred by the Bank was dismissed and it was held that there was no substance in the plea of the Bank that the appellate tribunal had no jurisdiction to direct reinstatement of the employees This judgment was pronounced on April 10 1953 The proceedings before the appellate tribunal were subsequently resumed and they terminated on January 4 1955 when the appellate tribunal directed the reinstatement of the 136 employees and passed incidental orders about the payment of their wages It refused to reinstate the remaining 14 employees but passed orders in regard to payment of compensation even in their cases Before the appellate tribunal four general points were sought to be raised at this subsequent hearing The first was in regard to the invalidity of the reference itself The second was in regard to 819 the ultra vires character of the relevant provisions of the Act Both these contentions were not allowed to be raised by the appellate tribunal and they have not been urged before us either The third contention raised was that both the strikes were not bona fide and so the striking workmen were not entitled to reinstatement and the last contention was that the pen down strike was illegal and participation in it should be considered as a circumstance disqualifying the strikers from reinstatement The appellate tribunal has held that the strikes in question were bona fide and that mere participation in the pen down strike cannot be treated as a valid ground for refusing reinstatement to the strikers It considered the evidence led by the parties in regard to the character of the strike and it held that the definite instruction issued to the employees was to continue occupation of their seats till the police intervened and threatened to arrest and so it was not prepared to accept the employees case that the pen down strikers vacated their seats on the mere asking by the management According to the finding the persons who took part in the pen down strike not only ceased to work but continued to occupy their seats The appellate tribunal also found that the pen down strikers were quiet and peaceful that no slogans were shouted no attempt at violence or coercion was made and that they simply occupied their seats without doing any work It was conceded before the appellate tribunal that pen down strike falls within the definition of strike prescribed by section 2q of the Act but it was urged that the act of not vacating their seats when asked by the management to do so introduced an element of illegality and made the strikers liable in a civil court for trespass The appellate tribunal was not impressed with this argument but it held that even if the striking workmen are assumed to have made themselves liable for civil trespass that itself would not be sufficient ground for refusing reinstatement It appears that the Bank relied upon several documents to show that the employees were guilty of subversive actions during the course of the strike The 820 appellate tribunal was not satisfied that these documents were genuine and could be effectively pressed into service by the Bank in support of its case It was also urged by the Bank that during the course of the strike posters and circulars were issued which were clearly subversive of the credit of the Bank and it was contended that employees who were guilty of issuing such posters and circulars did not deserve reinstatement The appellate tribunal examined these documents and held that three of them amounted to sub versive acts They are Exs 255a 255c and 302 In regard to exhibit 302 the findings recorded by the appellate tribunal in two places of its decision are somewhat inconsistent but the operative portion of the decision shows that the appellate tribunal was inclined to hold that exhibit 302 was also objectionable and that it amounted to a subversive act The rest of the documents no doubt used strong and intemperate language but the appellate tribunal was not prepared to treat them as constituting subversive activity On this finding a question which arose before the appellate tribunal was Who should be held responsible for the offending documents The appellate tribunal was not prepared to hold all the 150 employees responsible for them In this connection it considered the statement made by H N Puri in this evidence and it field that since Puri had admitted that he consulted 11 specified persons in preparing Exs 255a and 255c as well as other documents they must share the responsibility for the said documents along with Puri Similarly the appellate tribunal held that the persons who were shown to have been responsible for exhibit 302 must be treated on the same basis It was as a result of this finding that the appellate tribunal refused to direct reinstatement of 14 employees In regard to the remaining 136 employees the appellate tribunal held that it would not be right to impute the responsibility for the publication of the three subversive documents to them merely because they were members of the working committee or were otherwise active leaders of the Union The appellate tribunal the considered the voluminous evidence led by the parties in respect 821 of each one of the 150 employees and it held that in regard to the 136 employees no case had been made out by the Bank for refusing them reinstatement It is clear from the decision of the appellate tribunal that it was not at all satisfied with a substantial part of the documentary evidence adduced by the Bank It held that the affidavits filed by the Bank were sometimes prepared en masse and the deponents simply put their signatures on them In most of the affidavits there were blank spaces for the name parentage and age of the deponents and they have been subsequently filled up in ink Some of them though sworn at different places used identical language while in some others material additions and alterations have been made which do not bear the initials either of the deponents or of the oath commissioner It appeared to the appellate tribunal that some of the statements made by the witnesses of the Bank showed that their affidavits had been prepared by the Bank s lawyers and they simply put their signatures thereon and affirmed them before the oath commissioner Indeed the appellate tribunal apparently thought that there was some force in the contention raised by the employees that some of the documents produced by the Bank had been manufactured or tampered with long after the strike was over It has noticed the argument urged by the Bank that even if it was so the Bank cannot be condemned for the act or acts of its branch managers in that behalf This argument did not appeal to the appellate tribunal Thus the decision of the appellate tribunal substantially upheld the case made by the employees in that it directed the rein statement of the 136 out of the 150 employees and ordered payment of compensation to the remaining 14 whose reinstatement was not granted This decision has given rise to the three present appeals before us Civil Appeal No 519 of 1958 has been filed by the Bank against the order of reinstatement in respect of 126 employees represented by the Federation Similarly Civil Appeal No 520 of 1958 has been filed by the Bank against the order directing 104 822 the reinstatement of 10 employees represented by the Union and Civil Appeal No 521 of 1958 has been filed by the Federation on behalf of the 14 employees the claim for whose reinstatement has been rejected In regard to the first two appeals preferred by the Bank special leave was granted to the Bank on February 21 1958 limited to grounds b c d f and g set out in paragraph 162 of its petitions These grounds are b Whether employees who have been propagating against the stability and solvency of the Bank by propaganda oral as well as written through open letters posters leaflets and hand bills amongst the customers and constituents of the Bank and the public at large before during and after an illegal strike are entitled to an order of reinstatement c Whether after the declaration of an illegal strike forcible occupation of the seats and refusal to vacate them when ordered to do so by the Management does not constitute as act of criminal trespass it having been held by the appellate tribunal that the employees formed a large riotous assembly in and outside the premises of the Bank and delivered fiery and provocative speeches to accompaniment of scurrilous slogans directed against the institution and its high officers with a view to render impossible the business of the institution are entitled to an order of reinstatement d Whether a pen down strike of such a character does not contravene the provisions of the law of the land and is exempted under the Trade Unions Act or the f Whether employees who notwithstanding the fact that they resorted to an illegal strike and were guilty of rioting had been invited by the Management to come back and resume work and who spurned at this offer and in so many words treated it with contempt and whose places had therefore to be replaced by fresh recruits are entitled to an order that those fresh recruits be dismissed and replaced by the strikers 23 g Whether it is open to the employees of a concern to raise with their Employers a question as to whether the Employers should employ in their service employees of a concern other than their own and whether such a question constitutes an industrial dispute within the meaning of the It may be mentioned that the Bank s petitions had raised several other grounds in paragraph 162 but leave has not been granted to the Bank to raise any of them Almost a month and a half after limited leave was thus granted to the Bank the Federation filed its petition for special leave on April 4 1955 and it applied for condonation of delay made in presenting the petition On April 9 1956 this Court granted the employees application for condonation of delay and gave special leave to them to prefer their appeal This leave has not been limited to any particular grounds Broadly stated these are the relevant facts which give rise to the three present appeals Before dealing with the merits of these appeals we must consider two preliminary objections raised by the learned Attorney General on behalf of the employees He has claimed that if these objections are upheld the Bank s appeals would have to be dismissed and the employees appeal allowed without considering the merits of the orders under appeal In pressing these objections he urged that the questions raised were of considerable importance and though he conceded that some aspects of the matter were covered by the previous decisions of this Court he requested us to examine the whole question afresh once more We would accordingly deal with these contentions at some length The first contention is that as a result of the decision of this Court in the appeal preferred by the Bank against the interlocutary judgment of the appellate tribunal the whole of the enquiry held by the said tribunal pursuant to the said interlocutary judgment is invalid and infructuous This Court has held that the dismissal of the 150 employees is illegal having 824 regard to the provisions of section 33 of the Act if the dismissal is illegal it is void and inoperative and as such it cannot be said to have terminated the relationship of master and servant between the Bank and its employees Despite the said order of dismissal the employees continued to be in the employment of the Bank and are entitled to reinstatement without any further enquiry That it is said is the effect of the Bank s failure to comply with the provisions of section 33 It is next contended that the Bank does not dispute the fact that it had held no enquiry into the alleged misconduct of its employees before it passed the impugned orders of dismissal against them It is well established that even where an employer is justified in terminating the services of his employees he is bound to give them a charge sheet and hold a proper enquiry at which they would have a chance to meet the said charge sheet This requirement is universally treated asconsistent with natural justice and fairplay and since the Bank has not complied with it the impugned orders of dismissal are wholly invalid for this additional reason and the result again would be that the said orders are inoperative and void and the employees are entitled to reinstatement as a matter of course In support of this argument reliance has been placed on the decision of the Privy Council in the case of The High Commissioner for India and High Commissioner for Pakistan and IM Lall 1 This decision holds that the order of dismissal passed against a person who is a member of the Civil Service of the Crown in India without complying with the mandatory relevant provisions of section 240 of the Government of India Act 1935 is void and inoperative and that the Civil Servant against whom such an order is passed is entitled to a declaration that he remained a member of the Indian Civil Service at the date of the institution of the suit in which he challenged the validity of the impugned order Similarly in Khem Chand vs The Union of India2 this Court has held that an order of dismissal passed against a public servant specified in article 311awith out complying with the mandatory 1 75 1 A 225 2 825 provisions of article 311 2 is void and that the public servant sought to be dismissed by such an invalid order continued to be a member of the service at the date of the institution of the suit It is in the light of these decisions that the learned Attorney General asks us to hold that the relationship between the Bank and its employees remains wholly unaffected by the orders of dismissal passed by the Bank against them and so as soon as the orders are held to be void nothing more remains to be done but to make a declaration about the the continuance of the relationship of master and servant between the parties and to direct reinstatement Thus presented the argument no doubt appears prima facie to be attractive but in our opinion a careful examination of the relevant sections of the Act shows that it is not valid The three sections of the Act which are relevant are sections 33 33A and 10 Let us first consider section 33 This section has undergone several changes but we are concerned with it as it stood in 1951 It provides inter alia that during the pendency of any proceedings before a tribunal in respect of any industrial dispute no employer shall discharge or punish whether by dismissal or otherwise any workman concerned in such dispute save with the express permission in writing of the tribunal It is clear that in cases to which this section applies a ban has been imposed on the power of the employer to dismiss his employees save with the express permission in writing of the tribunal The object of the Legislature in enacting this section is obvious By imposing the ban section 33 attempts to provide for the continuance and termination of the pending proceedings in a peaceful atmosphere undisturbed by any causes of friction between the employer and his employees In substance it insists upon the maintenance of the status quo pending the disposal of the industrial dispute between the parties nevertheless it recognises that occasions may arise when the employer may be justified in discharging or punishing by dismissal his employees and so it allows the employer to take such action subject to the condition that before doing so he must obtain the 826 express permission in writing of the tribunal It is true that the ban is imposed in terms which are mandatory and section 311 makes the contravention of the provisions of section 33 an offence punishable as prescribed therein But the question which calls for our decision is What is the effect of such contravention on the decision of the industrial dispute arising from it Where an application is made by the employer for the requisite permission under section 33 the jurisdiction of the tribunal in dealing with such an application is limited It has to consider whether a prima facie case has been made out by the employer for the dismissal of the employee in question If the employer has held a proper enquiry into the alleged misconduct of the employee and if it does not appear that the proposed dismissal of the employee amounts to victimisation or an unfair labour practice the tribunal has to limit its enquiry only to the question as to whether a prima facie case has been made out or not In these proceedings it is not open to the tribunal to consider whether the order proposed to be passed by the employer is proper or adequate or whether it errs on the side of excessive severity nor can the tribunal grant permission subject to certain conditions which it may deem to be fair It has merely to consider the prima facie aspect of the matter and either grant the permission or refuse it according as it holds that a prima facie case is or is not made out by the employer But it is significant that even if the requisite permission is granted to the employer under section 33 that would not be the end of the matter It is not as if the permission granted under section 33 validates the order of dismissal It merely removes the ban and so the validity of the order of dismissal still can be and often is challenged by the union by raising an industrial dispute in that behalf The effect of compliance with the provisions of section 33 is thus substantially different from the effect of compliance with section 240 of the Government of India Act 1935 or article 3112 of the Constitution In the latter classes of cases an order of dismissal passed after duly complying with the 827 relevant statutory provisions is final and its validity or propriety is no longer open to dispute but in the case of section 33 the removal of the ban merely enables the employer to make an order of dismissal and thus avoid incurring the penalty imposed by section 311 But if an industrial dispute is raised on such a dismissal the order of dismissal passed even with the requiste permission obtained under section 33 has to face the scrutiny of the tribunal The decisions of this Court show that this position is well established In Atherton West Co Ltd vs Suti Mills Mazdoor Union 1 this Court was dealing with the provisions of cl 23 of the relevant U P Government notification which is similar to the provisions of section 33 of the Act The enquiry to be conducted by the Regional Conciliation Officer under the said clause observed Bhagwati J was not an enquiry into an industrial dispute as to the non employment of workmen who was sought to be discharged or dismissed which industrial dispute would only arise after an employer his agent or manager discharged or dismissed the workman in accordance with the written permission obtained from the officer concerned The only effect of obtaining permission from the officer concerned was to remove the ban imposed on the employer But the order of dismissal passed after obtaining the requisite permission can still become the subject matter of an industrial dispute under section 2k of the Act and the workman who has been dismissed would be entitled to have the industrial dispute referred to the appropriate authority In The Automobile Products of India Ltd vs Rukmaji Bala Ors 2 this Court was dealing with a similar problem posed by the provisions of section 22 of Act 48 of 1950 and section 33 of the Act Dealing with the effect of these sections this Court held that the object of section 33 was to protect the workmen against the victimisation by the employer and to ensure the termination of the proceedings in connection with the industrial disputes in a peaceful atmosphere That being so all that the tribunal exercising its jurisdiction under section 33 is 1 2 828 required to do is to grant or withhold the permission that is to say either to lift or to maintain the ban This section does not confer any power on the tribunal to adjudicate upon any other dispute or to impose conditions as a prerequisite for granting the permission asked for by the employer The same view has been expressed in Lakshmi Devi Sugar Mills Ltd vs Pt Ram Sarup 1 In cases where an industrial dispute is raised on the ground of dismissal and it is referred to the tribunal for adjudication the tribunal naturally wants to know whether the impugned dismissal was preceded by a proper enquiry or not Where such a proper enquiry has been held in accordance with the provisions of the relevant standing orders and it does not appear that the employer was guilty of victimisation or any unfair labour practice that tribunal is generally reluctant to interfere with the impugned order The limits of the tribunal s jurisdiction in dealing with such industrial disputes have been recently considered by this Court in the Indian Iron Steel Co Ltd vs Their Workmen 2 and it has been held that the powers of the tribunal to interfere with cases of dismissal are not unlimited because the tribunal does not act as a court of appeal and substitute its own judgment for that of the management In this judgment this Court has indicated the classes of cases in which the tribunal would be justified in interfering with the impugned order of dismissal It would and should interfere when there is want of good faith when there is victimisation or unfair labour practice when the management has been guilty of a basic error or violation of the principle of natural justice or when on the materials the finding of the management is completely baseless or perverse The same view has been again expressed by this Court in O McKenzie Co Ltd and Its Workmen 3 There is another principle which has to be borne in mind when the tribunal deals with an industrial dispute arising from the dismissal of an employee We have already pointed out that before an employer can 1 2 3 829 dismiss his employee he has to hold a proper enquiry into the alleged misconduct of the employee and that such an enquiry must always begin with the supply of a specific charge sheet to the employee In Lakshmi Devi Sugar Mills Ltd 1 it has been held by this Court that in dealing with the merits of the dismissal of an employee the employer would be confined to the charge sheet given by him to his employee when an enquiry was held into his conduct It would not be open to the employer to add any further charges against the employee and the case would have to be considered on the original charge sheet as it was framed It is significant that in the case of Lakshmi Devi Sugar Mills Ltd 1 this Court was apparently inclined to take the view that the additional acts of insubordination on which the appellant mills wanted to rely would have justified the employee s dismissal but even so it was not allowed to raise that plea because the said plea had not been included in the original charge sheet It therefore follows that where a proper enquiry has been held by the employer and findings are recorded against the employee that the principles laid down by this Court in the case of Indian Iron Steel Co Ltd 2would be applicable and in applying the said principles the employer would be confined to the grounds set out by him in his charge sheet against the employee This position is not disputed before us Indeed the learned Attorney General contends that the principles applicable to the decision of an industrial dispute arising from the dismissal of an employee to which we have just referred serve to emphasise the obligatory character of the limitation imposed on the employer by section 33 of the Act and by the requirements of natural justice that every dismissal must be preceded by a proper enquiry Where the ban imposed by section 33 of the Act has been defied andor where a proper enquiry has not been held at all the action of the employer in dismissing his employee must be treated as void and inoperative Such a case 1 2 105 830 stands outside the principles which we have discussed so far That in brief is the main contention raised by the employees This contention is however untenable in view of the decisions of this Court where the provisions of section 33A have been construed and considered and so we must now turn to section 33A This section was inserted in the Act in 1950 Before it was enacted the only remedy available to the employees against the breach of section 33 was to raise an industrial dispute in that behalf and to move the appropriate Government for its reference to the adjudication of a tribunal under section 10 of the Act The trade union movement in the country complained that the remedy of asking for a reference under section 10 involved delay and left the redress of the grievance of the employees entirely in the discretion of the appropriate Government because even in cases of contravention of section 33 the appropriate Government was not bound to refer the dispute under section 10 That is why section 33A was enacted for making a special provision for adjudication as to whether section 33 has been contravened This section enables an employee aggrieved by such contravention to make a complaint in writing in the prescribed manner to the tribunal and it adds that on receipt of such complaint the tribunal shall adjudicate upon it as if it is a dispute referred to it in accordance with the provisions of the Act It also requires the tribunal to submit its award to the appropriate Government and the provisions of the Act shall then apply to the said award It would thus be noticed that by this section an employee aggrieved by a wrongful order of dismissal passed against him in contravention of section 33 is given a right to move the tribunal in redress of his grievance without having to take recourse to section 10 of the Act After this section was thus enacted the scope of the enquiry contemplated by it became the subject matter of controversy between the employers and the employees This Court bad occasion to deal with this controversy in the case of the Automobile Products of India Ltd 1 Das J as he then was who delivered 1 831 the judgment of the Court construed section 33A of the Act and the corresponding section 23 of Act 48 of 1950 which applied to the Labour Appellate Tribunal then in existence and observed that the scheme of the section clearly indicates that the authority to whom the complaint is made is to decide both the issues viz 1 the effect of contravention and 2 the merits of the act or order of the employer The provision in the section that the complaint shall be dealt with by the tribunal as if it were a dispute referred to or pending before it quite clearly indicates said the learned Judge that the jurisdiction of the authority is not only to decide whether there has been a failure on the part of the employer to obtain the permission of the authority before taking action but also to go into the merits of the complaint and grant appropriate reliefs p 1253 It was urged before this Court that in holding an enquiry under section 33A the tribunal s duty was only to find out whether there had been a contravention of section 33 and if it found that there was Such a contravention to make a declaration to that effect The argument was that no further question can or should be considered in such as enquiry This contention was however rejected The same question was raised before this Court in Equitable Coal Co Ltd vs Algu Singh 1 and following the previous decision of this Court in the case of the Automobile Products of India Ltd 2 it was held that in an enquiry under section 23 two questions fall to be considered Is the fact of contravention of the provisions of section 22 proved If yes is the order passed by the employer against the employee justified on the merits Thus there can be no doubt that in an enquiry under section 33A the employee would not succeed in obtaining an order of reinstatement merely by proving contravention of section 33 by the employer After such contra vention is proved it would still be open to the employer to justify the impugned dismissal on the merits That is a part of the dispute which the tribunal has to consider because the complaint made by the employee is treated as an industrial dispute and all the relevant 1 AIR 1958 SC 761 2 832 aspects of the said dispute fall to be considered under 3 Therefore we cannot accede to the argument that the enquiry under section 33A is confined only to the determination of the question as to whether the alleged contravention by the employer of the provisions of section 33 has been proved or not In the present case the impugned orders of dismissal have given rise to an industrial dispute which has been referred to the tribunal by the appropriate Government under section 10 There can be no doubt that if under a complaint filed under section 33A a tribunal has to deal not only with the question of contravention but also with the merits of the order of dismissal the position cannot be any different when a reference is made to the tribunal like the present under section 10 What is true about the scope of enquiry under section 33A is a fortiori true in the case of an enquiry under section 10 What is referred to the tribunal under section 10 is the industrial dispute between the Bank and its employees The alleged contravention by the Bank of section 33 is no doubt one of the points which the tribunal has to decide but the decision on this question does not conclude the enquiry The tribunal would have also to consider whether the impugned orders of dismissal are otherwise justified and whether in the light o the relevant circumstances of the case an order of reinstatement should or should not be passed It is only after all these aspects have been considered by the tribunal that it can adequately deal with the industrial dispute referred to it and make an appropriate award In this connection it would be relevant to remember that in dealing with industrial disputes arising out of dismissal of employees the tribunal undoubtedly has jurisdiction to direct reinstatement in proper cases The question about the jurisdiction of an industrial tribunal to direct reinstatement was raised as early as 1949 before the Federal Coort in Western India Automobile Association vs Industrial Tribunal Bombay 1 In this case the Federal Court considered the larger question about the powers of industrial tribunals in 1 833 all its aspects and rejected the argument of the employer that to invest the tribunal with jurisdiction to order re employment amounts to giving it authority to make a contract between two persons when one of them is unwilling to enter into a contract of employment at all This argument observed Mahajan J as he then was overlooks the fact that when dispute arises about the employment of a person at the instance of a trade union or a trade union objects to the employment of a certain person the definition of industrial dispute would cover both those cases In each of those cases although the employer may be unwilling to do so there will be jurisdiction in the tribunal to direct the employment or non employment of the person by the employer The learned Judge also added that the disputes of this character being covered by the definition of the expression industrial disputes there appears no logical ground to exclude an award of reinstatement from the jurisdiction of the industrial tribunal Since this judgment was pronounced the authority of the industrial tribunals to direct reinstatement in appropriate cases has never been questioned In exercising its jurisdiction to direct reinstatement of dismissed employees industrial tribunals have indicated certain general considerations for their own guidance In the case of a wrongful dismissal the normal rule adopted in industrial adjudication is that reinstatement should be ordered But observed the Full Bench of the Labour Appellate Tribunal in Buckingham Carnatic Mills Ltd And Their Workmen 1 in so ordering the tribunal is expected to be inspired by a sense of fair play towards the employee on the one hand and considerations of discipline in the concern on the other The past record of the employee the nature of his alleged present lapse and the ground on which the order of the management is set aside are also relevant factors for consideration It is obvious that no hard and fast rule can be laid down in dealing with this problem Each case must be considered on its own merits and in reaching the 1 1951 11 LLJ314 834 final decision an attempt must be made to reconcile the conflicting claims made by the employee and the employer The employee is entitled to security of service and should be protected against wrongful dismissals and so the normal rule would be reinstatement in such cases Nevertheless in unusual or exceptional cases the tribunal may have to consider whether in the interest of the industry itself it would be desirable or expedient not to direct reinstatement As in many other matters arising before the industrial courts for their decision this question also has to be decided after balancing the relevant factors and without adopting any legalistic or doctrinaire approach No such considerations can be relevant in cases where in civil courts the validity of dismissals is challenged on the ground of non compliance with section 240 of the Government of India Act 1935 or article 3112 of the Constitution There is one more point which still remains to be considered and that is the effect of the Bank s default it not holding an enquiry in the present case If the Bank has not held any enquiry it cannot obviously contend before the tribunal that it has bona fide exercised the managerial functions and authority in passing the orders of dismissal and that the tribunal should be slow to interfere with the said orders It is true as we have already pointed out that if the employer holds a proper enquiry makes a finding in respect of the alleged misconduct of the employee and then passes an order of dismissal the tribunal would be glow to interfere with such an order and would exercise its jurisdiction within the limits prescribed by this Court in The case of Indian Iron Steel Co Ltd 1 But it follows that if no enquiry has in fact been held by the employer the issue about the merits of the impugned order of dismissal is at large before the tribunal and on the evidence adduced before it the tribunal has to decide for itself whether the misconduct alleged is roved and if yes what would be proper order to make In such a case the point about the exercise of managerial functions does not arise at 3 835 all This answers the argument which Mr Sanyal has raised before us in his appeal Mr Sanyal however seeks to derive support to his argument from the decision of the Labour Appellate Tribunal in The Madras Electric Tramways 1904 Ltd Madras And Their Workers 1 In that case the order of reinstatement passed by the tribunal was reversed in appeal by the appellate tribunal which observed that in dealing with cases of dismissal where the management had acted bona fide and with knowledge and experience of the problems which confronted in the daily work of the concern it should be considered to be well qualified to judge what sentence would be appropriate and the sentence imposed by the management should normally stand subject to the qualification that it must not be unduly severe It is obvious that in that case the management had held a proper enquiry and the question which arose for decision was what are the limits of the jurisdiction of the tribunal in dealing with an industrial dispute arising from an order of dismissal passed by an employer after holding a proper enquiry The principles applicable to such a case have been already considered by us but they can have no application to the present case where the employer has held no enquiry at all Therefore this decision on which Mr Sanyal relies is irrelevant The position then is that the effect of the double default committed by the employer is not to limit the enquiry to the decision of the sole question as to the commission of the said default and so despite the said default the subsequent enquiry held by the appellate tribunal pursuant to its interlocutory judgment was proper and legal The two preliminary objections raised by the learned Attorney_General must therefore fail Let us now deal with the two appeals filed by the Bank Civil Appeals Nos 519 and 520 of 1958 We have already indicated that in dealing with these appeals we have to bear in mind the limitations imposed by the nature of the limited leave granted to 1 836 the Bank it is only the grounds specifically covered by the leave which fall to be considered and even these grounds will necessarily have to be dealt with in the light of the findings already recorded by the appellate tribunal which are no longer open to challenge The subsequent enquiry held by the appellate tribunal was limited to the question as to whether the Bank was able to prove any specific circumstances which disentitled the employees from claiming reinstatement In other words the object of the said enquiry was to ascertain the nature of the positive objections which the Bank had against each one of them The rest of the matters in dispute between the parties are concluded by the other findings which have become final Considered in the light of these limitations the grounds on which leave has been granted to the Bank must first be examined A bare perusal of the said grounds would show that some of them are vague and they are urged on assumptions of fact which run counter to the findings recorded by the appellate tribunal That is why when those appeals were urged before us Mr Anand and Mr Sanyal have recast their contentions within the frame work of the grounds in respect of which leave has been granted and have urged the following points before us 1 that participation in a pen down strike is itself an activity of such a subversive character that it disqualifies the employees who took part in it from claiming the relief of reinstatement 2 that the publication and circulation of subversive documents was the result of a concerted plan and represent a collective activity of all the strikers and as such all the employees before us should be held responsible for it and on this ground reinstatement should be refused to them 3 that the finding recorded by the appellate tribunal that only 14 persons were directly and actively concerned with the preparation and publication of the subversive documents is opposed to the weight of evidence and is perverse 4 that the appellate tribunal erred in law in not taking into account the fact that after the 150 employees were dismissed the Bank has engaged fresh hands and the order of reinstatement would therefore be unjust and 837 unfair and 5 that the appellate tribunal was also in error in not taking into account the fact that some of the employees have in the meanwhile taken employment elsewhere It is these five grounds which we are asked to consider by the Bank in its present appeals Before dealing with these contentions we would like to make one general observation Though not in the same form in substance these contentions were raised before the appellate tribunal in support of the plea that the dismissed employees should not be reinstated As we have already emphasized whether or not reinstatement should be ordered in cases of wrongful or illegal dismissals is normally a question of fact and in deciding it several relevant factors have to be borne in mind If the appellate tribunal applied its mind to those relevant factors and came to the conclusion that 14 employees did not deserve to be reinstated while the remaining 136 did we would be reluctant to interfere with the said order under article 136 unless it is shown that the order suffers from an error which raises a general or substantial question of law The first contention raised by the Bank is in regard to the conduct of the employees in entering upon a pen down strike and its effect on their claim for reinstatement The finding of the tribunal on this point is that the persons who took part in the pen down strike not only ceased to work but continued to occupy their seats A tumultuous crowd had gathered outside the premises of the Bank and some persons in the crowd were shouting slogans in support of the strike The strikers had been definitely instructed to stick to their seats until the police intervened and threatened arrest or until orders of discharge or suspension were served on them There has been some argument before us as to the number of persons who actually took part in this kind of pen down strike For the Bank Mr Anand has urged that the finding of the appellate tribunal suggests that most of the strikers took part in this strike and in any event according to him at least 52 persons took part in it He has filed in this Court a list of these 52 employees On the other hand 106 838 the learned Attorney General has contended that on the findings recorded by the appellate tribunal not more than 10 persons can be said to have taken part in it In dealing with the present contention of the Bank we are prepared to assume that most of the strikers participated in the pen down or sit down strike as generally found by the tribunal Is this pen down strike a strike within section 2q of the Act or not section 2q defines a strike as meaning a cessation of work by a body of persons employed in any industry acting in combination or a concerted refusal or a refusal under a common understanding of any number of persons who are or have been so employed to continue to work or to accept employment It was conceded before the appellate tribunal that a pen down strike falls within this definition and this position is not seriously disputed before us either On a plain and grammatical construction of this definition it would be difficult to exclude a strike where workmen enter the premises of their employment and refuse to take their tools in hand and start their usual work Refusal under common understanding to continue to work is a strike and if in pursuance of such common understanding the employees entered the premises of the Bank and refused to take their pens in their hands that would no doubt be a strike under section 2q The main grievance of the Bank is that these employees not only sat in their places and refus ed to work but they would not vacate their seats when they were asked to do so by their superior officers Such conduct may introduce an element of insubordination but that is a different matter In our opinion therefore the pen down strike in which the employees participated in the present case cannot be said to be outside section 2q of the Act It was however urged that the entry of the strikers in the premises of the Bank amounted to civil trespass The argument is that by virtue of their employment the employees had a licence to enter the premises of the Bank but this licence is subject to the condition that the employees are willing to carry out their obligation of the contract and do their allotted work during the 839 office hours If the employees had decided not to work they were not entitled to the licence in question and so their entry into the Bank itself constituted a civil trespass On their hand the employees contend that during the continuance of their employment they are entitled to enter the premises of the Bank and having thus entered they were also entitled to exercise their right of going on strike They entered the premises as employees of the Bank and having taken their seats they exercised their right of striking work If the Bank had suspended the employees it would have been another matter but so long as the relationship of master and servant continued the employees could not be said to have committed civil trespass when they entered the premises at the time In support of its case the Bank has relied on the proposition that even if a person has a right of entry on the land of another for a specific purpose he commits a trespass if he enters for any other purpose or under any other claim or title apart from that under which he might lawfully enter As an illustration of this proposition it is stated that if a person having a licence for entry on land enters the land not by virtue of the said licence but in order to contest the licensor s title he commits a trespass 1 But this proposition is subject to the exception that if a person enters for a lawful purpose he is not a trespasser unless the case is one to which the doctrine of trespass ab initio applies 2 So the decision of this technical point would depend on whether or not the employees are given a limited or conditional licence to enter the premises and that if they have decided to go on strike the said conditional or limited licence is no longer available to them We do not think it necessary to consider this academic question in the present proceedings because in our opinion the appellate tribunal was obviously right in holding that even if civil trespass was involved in the conduct of the employees that by itself cannot justify the rejection of their claim for reinstatement Incidentally we may add that even 1 Salmond on Torts 12th Ed p 158 2 Salmond on Torts 12th Ed p 159 840 in America the simple act of trespassing upon the employer s property is no bar to reinstatement nor is the act which at most a civil tort 1 Does the conduct of the strikers as found by the appellate tribunal constitute criminal trespass unders 441 of the Indian Penal CodeThat is the next point which calls for decision It is argued that the conduct of the employees amountsto criminal trespass which is an offence and as suchthose who committed criminal trespass would not be entitled to reinstatement According to the Bank the employees committed the criminal trespass inasmuch as they either entered unlawfully or having lawfully entered continued to remain there unlawfully with intent thereby to insult or annoy their superior officers It would be noticed that there are two essential ingredients which must be established before criminal trespass can be proved against the employees Even if we assume that the employ ees entry in the premises was unlawful or that their continuance in the premises became unlawful it is difficult to appreciate the argument that the said entry was made with intent to insult or annoy the superior officers The sole intention of the strikers obviously was to put pressure on the Bank to concede their demands Even if the strikers might have known that the strike may annoy or insult the Bank s officers it is difficult to hold that such knowledge would necessarily lead to the inference of the requisite intention In every case where the impugned entry causes annoyance or insult it cannot be said to be actuated by the intention to cause the said result The distinction between knowledge and intention is quite clear and that distinction must be borne in mind in deciding whether or not in the present case the strikers were actuated by the requisite intention The said intention has always to be gathered from the circumstances of the case and it may be that the necessary or inevitable consequence of the impugned act may be one relevant circumstance But it is impossible to accede to the argument that the likely consequence of the act and its possible knowledge 1 Ludwig Teller s Labor Disputes and Collective Bargaining Vol 11 p855 841 must necessarily import a corresponding intention We think it is unnecessary to elaborate this point we would only like to add that the decision of the Patna High Court in T H Bird vs King Emperor 1 on which reliance was placed by the Bank is wholly inconsistent with the contention raised by it Thus our conclusion is that the Bank has failed to prove that the conduct of the strikers as found by the appellate tribunal amounted to criminal trespass under s441 of the Code In resisting the employees claim for reinstatement on the ground that participation in a pendown strike creates a bar against such a claim the Bank has strongly relied on the decision of the Supreme Court of America in National Labor Relations Board vs Fansteel Metallurgical Corporation2 Both Mr Anand and Mr Sanyal have contended that this decision is an authority for the proposition that participation in pen down strikes necessarily disqualifies the strikers from claiming reinstatement It is therefore necessary to examine this case carefully In this case the National Labor Relations Board bad directed the reinstatement of participants in a sit down strike whom upon their refusal to leave the employer s plant the employer declared to be discharged The Board had held that despite the illegal strike and the consequent order of discharge the status of the employees continued by virtue of the definition of the term employee in section 2 sub section 3 of the National Labor Relations Act It had also taken the view that it had jurisdiction to direct reinstatement of the said employees under section 10c of the said act with a view to effectuate the policies of the Act Both these conclusions were reversed by the Supreme Court by a majority judgment According to the majority view when the Congress enacted the National Labor Relations Act it did not intend to compel employers to retain persons in their employ regardless of their unlawful conduct to invest those who go on strike with an immunity from discharge for acts of trespass or violence against the employer s property which they 1 1934 ILR XIII Pat 2 306 US 238 842 would not have enjoyed had they remained at work It was also held that the Congress was intent upon protection of employees right to self organisation and to the selection of representatives of their own choosing for collective bargaining without restraint or coercion On the facts the conclusion of the majority was that the strike was illegal in its inception and prosecution This was really not the exercise of the right to strike to which the Act referred It was an illegal seizure of the building in order to prevent their use by the employer in a lawful manner and thus by acts of force and violence compel the employer to submit The conclusion therfore was that to provide for the reinstatement or re employment of employees guilty of the acts which even according to the Board had been committed would not only not effectuate any policy of the Act but would directly tend to make abortive its plan for peaceable procedure Mr Justice Reed who delivered a dissenting judgment thought that both labour and management had erred grievously in their respective conduct and so it would not be unreasonable to restore both to their former status That is why he was not prepared to reverse the order of reinstatement passed by the Board The Bank naturally relies upon the majority decision in support of its contention that its employees who participated in the pen down strike are not entitled to reinstatement In considering the question as to whether the principle underlying the majority decision should be applied to a pen down strike in India it is necessary to remember that the pen down strike properly so called is recognised as a strike under section 2q of the Act and so it would not be safe to extend the principles of American decisions bearing on this question without a careful scrutiny of the relevant provisions of the American statute and the facts on which the said decisions are based Let us then consider the facts on which the majority decision was based It appears that an acrimonious dispute had been going on between the Corporation and its employees for some time before February 171937 when the pen down strike commenced The Corporation was not prepared to recognise the 843 outside union and had employed a labor spy to engage in espionage within the union and continued the employment of the said spy It also appears that the super intendant of the Corporation when requested to meet the deputation of the union required that the deputation should consist only of employees of five years standing Subsequently the superintendent refused to confer with the committee in which the outside Organisation had been included and as a punitive measure he required the president of the union to work in a room adjoining his office with the purpose of keeping him away from the other workers It was in this background of bitter relationship that the strike commenced In the afternoon of February 17 the union committee decided upon a sit down strike by taking over and holding two of the respondent s key buildings These were then occupied by about 95 employees as a result of which work in the plant stopped In the evening the superintendent accompanied by police officials went to each of the building and demanded that the men leave They however refused whereupon the respondent s counsel who had accompanied the superintendent announced in loud tone that all the men in the plant were discharged for the seizure and detention of the buildings Even so the men continued to occupy the buildings until February 26 Their fellow members brought them food blankets stoves cigarettes and other supplies Meanwhile on February 18 the respondent obtained from the state court an injunction requiring the men to surrender the premises The men refused to obey the order and a writ of attachment for contempt was served on them on February 19 When the men refused to submit a pitched battle ensued and the men successfully resisted the attempt by the sheriff to evict and arrest them Efforts at mediation failed Ultimately on February 26 the sheriff with An increased force of deputies made a further attempt and this time after another battle the men were ousted and placed under arrest They were subsequently prosecuted and most of them were fined and given jail sentence for violating 844 the injunctions A bare statement of these facts would clearly bring out the true character of the strike with which the Supreme Court was dealing It was not merely an illegal but violent strike it was a strike which began with the wrongful seizure of the employer s property and his exclusion from it a strike accompanied by violence which led to pitched battles between the strikers and the sheriff s men a strike continued by the strikers even after they were formally discharged from the employment and against an order of injunction by a competent court It is difficult to accede to the argument that the majority decision in that case can be extended to the facts before us As Teller has observed the strike in question can be more accurately defined as a strike in the traditional sense to which is added the element of trespass of the strikers upon the property of the employer 1 Therefore in our opinion this decision does not assist the Bank in support of its case that mere participation in the illegal strike in the present case can by itself defeat the claim of the employees for reinstatement In this connection we may point out that according to Teller the Fansteel decision marks what is hoped to be an end of an unfortunate chapter in the history of American labor activity he has added that there is danger however in viewing the sitdown strike solely as the reflection of lawless labour leadership The causes of its emergence are deeper Indeed labour has contended that capital and labor share equal responsibility for its rise and development No analysis of a sit down strike can claim a broad view of the subject says labor without a full measure of consideration of the infamous Mohawk Valley methods used by Remington Rand to break strikes nor to the facts elicited in the recent Rand Bergoff trial under the Byrnes Act The anarchy of law which resulted from unlawful employer utilisation of instruments of violence and chicanery in disregard of law needed the sit down 1 Ludwig Teller s Labour Disputes and Collective Bargaining Vol 1 p 311 section 106 845 strike as an effective counterpoise and so the author significantly concludes that it is no coincidence that statistics show a precipitate drop in the prevalence of sit down strikes immediately upon validation by the United States Supreme Court of the National Labor Relations Act It is in the light of this background that the Supreme Court had been called upon to decide the question of reinstating employees in the Fansteel case 1 The history of the trade union legislation in England shows that the trade union movement had to wage a long and bitter struggle to secure recognition for the workmen s right to organise themselves into unions and to exercise their right of collective bargaining if necessary by the use of the weapon of strikes In America a similar struggle took place and as we have just pointed out it was marked by violence on the part of both capital and labour because the employer s theory of hire and fire offered relentless resistence to the workmen s claim to form unions and to resort to strikes for trade union purposes In Williams Truax vs Michael Corrigan2 Mr Justice Brandeis in his dissenting judgment has given a very illuminating account of the history and progress of the trade union movement in the United States in England and the Colonies Practically every change in the law observed Mr Justice Brandeis governing the relation of the employer and the employees must abridge in some respect the liberty or property of one of the parties if liberty and property is measured by the standard of the law theretofore prevailing If such changes are made by acts of the Legislature we call the modification an exercise of the police power and although the change may involve an interference with existing liberty or property of individuals the statue will not be declared a violation of the due process clause unless the court finds that interference is arbitrary or unreasonable or that considered as a means the measure has no real or substantial relation of cause to a permissible end 1 306 US 238 2 66 Law Edn 311 107 846 In that case the validity of the prohibition of Ariz Civil Code 1913 cl 1464 against the interference by injunction between employers and employees in cases growing out of a dispute concerning terms or conditions of employment was challenged and the challenge was upheld by a majority of the learned judges who took the view that the said provision was contrary to the 14th Amendment of the Constitution Holmes Pitney Clarke and Brandeis JJ however dissented The main decision in that case is not of direct assistance in the present appeals No doubt Mr Anand has attempted to contend that the acts of which the strikers were held guilty in that case are similar to the acts alleged against the employees in the present appeals but this argument would be relevant only if it is shown by the Bank that the specific subversive acts alleged have been committed by the specific individual employees To that point we will refer later on Incidentally the present decision is of some importance because the dissenting opinion delivered by Mr Justice Brandeis has been subsequently treated as an authoritative exposition of the problem of trade unionism and the history of its growth and development Fortunately as the Indian 16 of 1926 the 20 of 1946 and the 14 of 1947 show our Legislature has very wisely benefitted by the experiences of other countries in the matter of the development of trade union movement and has made progressive just and fair provisions governing the important problem of industrial relationships the formation of trade unions and the settlement of industrial disputes It can be justly claimed that though we have witnessed capital labour conflicts in our country on the whole neither party has departed from the pursuit of peaceful methods and both parties submit their disputes to be resolved in accordance with the provisions of the Act In dealing with industrial disputes like the present we must therefore primarily consider the relevant statutory provisions and the material Indian decisions 847 Thus considered the conclusion is inevitable that the pen down strike is a strike within section 2q and so per se it cannot be treated as illegal it has been found to be illegal in this case because it was commenced in contravention of section 23b of the Act but as has been held by this Court in Ms Burn Co Ltd vs Their Workmen 1 mere participation in such an illegal strike cannot necessarily involve the rejection of the striker s claim for reinstatement As we have already indicated on the findings of the appellate tribunal nothing more than such participation has been proved against the employees whose reinstatement has been ordered and so unless the said finding is reversed the first contention raised by the Bank must fail It has been strenuously urged before us that in the case of a Bank which is a credit institution a pen down strike if continued for a long period is likely to affect prejudicially the credit of the Bank It is also pointed out that even in regard to industrial concerns if strikers entered the premises of the factory and sit around the plant in large numbers in the heat of the moment unfortunate and ugly incidents are likely to happen and so such pen down or sit down strikes should be positively discouraged We are prepared to concede that in the surcharged atmosphere which generally accompanies strikes and when passions are aroused a large scale and continuous pen down strike may lead to untoward consequences But on the other hand even in the case of such a strike the employer is not without a remedy He may bar the entry of the strikers within the premises by adopting effective and legitimate methods in that behalf as in fact the Bank did in the present case from April 23 He may call upon the employees to vacate and on their refusal to do so take due steps to suspend them from employment proceed to hold proper enquires according to the standing orders and pass proper orders against them subject to the relevant provisions of the Act If the Bank had been properly advised to adopt such a course many of the difficulties which it had to face in the present proceedings would not 1 AIR 1959 SC 529 848 probably have arisen Therefore we do not think that the general hypothetical consideration that pendown strikes may in some cases lead to rowdy demonstrations or result in disturbances or violence or shake the credit of the Bank would justify the conclusion that even if the strikers are peaceful and non violent and have done nothing more than occupying their seats during office hours their participation in the strike would by itself disqualify them from claiming reinstatement Let us then consider the second contention raised by the Bank It is urged on behalf of the Bank that it is really unnecessary to examine which particular employee was directly associated with the preparation and circulation of the subversive circular or posters The offensive posters and circulars had been drafted printed and circulated in pursuance of the common object of the strikers and each one of them must therefore share the responsibility for the said act It is really an argument based on the theory of conspiracy which makes all conspirators liable for the act of any one of them This argument is countered by the employees with the contention that the activities of the Union do not fall to be considered in the present enquiry It is the acts of individual strikers who have been dismissed that have given rise to the dispute and the enquiry must be confined to that dispute alone The learned Attorney General seriously asked us to bear in mind that the application of the doctrine of conspiracy to the decision of the present dispute may have far reaching consequences on the future of the trade union movement itself and he suggested that since the Union and its activities were not the subject matter of the present enquiry we need not consider the argument of conspiracy at all Besides according to him if the theory of conspiracy was upheld it would mean that if any office bearers of the Union were guilty of any subversive acts the whole membership of the Union would be constructively responsible and that is plainly unreasonable In this connection he also referred us to sections 17 18 and 19 of the Indian 849 16 of 1926 We have indicated this argument at this place by anticipation In fact this argument has been raised by the employees in their appeal but we thought it would be convenient to deal with both these aspects of the matter in one place Now the answer to both these technical and academic contentions is the same In industrial adjudication tribunals should be slow to adopt any doctrinaire or legalistic approach They should as far as is reasonably possible avoid the temptation of formulating general principles and laying down general rules which purport to cover all cases Let us recall the nature of the enquiry which the appellate tribunal had directed as a result of its interlocutary judgment This enquiry is confined to the question as to whether in regard to the case of each one of the dismissed employees the Bank has shown any positive circumstances as a result of which reinstatement which is the normal rule should not be directed Thus considered we do not think it necessary to deal with the academic points raised by both the parties before us The third argument urged by the bank is in regard to the finding of the tribunal that only 14 employees named by it are responsible for the subversive posters and hand bills It is urged that this finding is perverse We are not impressed by this argument There is no doubt that the three posters Exs 255 a 255 c and 302 to which strong exception has been taken by the Bank are subversive of the credit of the Bank They make imputations about the honesty of the management of the Bank and in terms suggest improper use of the funds of the Bank for personal purposes It is also true that a large number of other documents issued by the Union before and during the strike have used exaggerated and unduly militant intemperate language and in our opinion the appellate tribunal was justified in expressing its disapproval of the use of such language but the appellate tribunal thought that none of these documents could really be taken to be subversive of the credit of the Bank and with that conclusion we are in full agreement Therefore the only question which we have to consider is whether 850 the view taken by the appellate tribunal that 14 persons were actively concerned with these offensive documents can be successfully challenged by the Bank before us In making its finding on this point the appellate tribunal has substantially relied on the statement made by H L Puri He was asked whether the drafts of the letters issued by him had been approved at the meeting of the working committee or on his individual responsibility and he replied that they were never written on individual responsibility but were based on consultation with the members of the working committee Then he was asked whether he could name the persons whom he consulted in drafting the poster dated July 5 1949 exhibit 222 In reply to this he enumerated the names of 9 persons and added the word so on It appears that the appellate tribunal asked him several questions on the same topic and the effect of his admissions clearly was to show that most of the documents were issued by the secretary or the president after he had consulted the persons named by Puri In this connection Puri gave the names of the office bearers of the Federation at Delhi It was in the light of these admissions that the appellate tribunal came to the conclusion that 14 persons named by him can be safely taken to have been actively associated with the drafting and the publication of the subversive documents Mr Anand contends that the list of office bearers separately supplied by Puri includes a much larger number of active workers of the Union and on the evidence of Puri all these active workers should have been held responsible for the said documents In this connection he has relied on the affidavit filed by Amar Singh on behalf of the Bank We do not think that this argument is wellfounded It is significant that though the appellate tribunal had directed the Bank by its interlocutary judgment to file a statement giving particulars of the acts alleged against each one of the employees no such statement was filed Besides it is fairly conceded before us by Mr Anand that most 851 of the employees who made affidavits in the subsequent enquiry were not asked any general question about their alleged subversive activities and no particular question was put to them in regard to the relevant subversive documents The judgment of the appellate tribunal shows that it first considered the general points and the evidence relied upon by the parties in that behalf and then it exhaustively dealt with the whole of the evidence bearing on the case of each individual employees We are satisfied that the Bank is not justified in contending that in excluding 136 employees from the responsibility of direct participation in the drafting and publication of the subversive circulars and hand bills the appellate tribunal has ignored any important evidence The argument that the said finding is opposed to the weight of evidence and as such perverse must therefore be rejected Then Mr Anand has invited us to consider some individual cases According to him the case against Joshi had not been properly considered by the appellate tribunal It does appear that Joshi admitted that he had taken part in the drafting of documents P 272 274 279 280 and 286 but none of these documents has been found to be subversive and so it is idle to contend that Joshi s connection with any of the three subversive documents is established So there is no substance in the argument that Joshi s case should be reconsidered Then our attention has been drawn to the cases of five other employees Narain Das Chuni Lal Som Datt Trilok Chand and Charan Singh In regard to these persons the appellate tribunal has found that the Bank had failed to prove any subversive acts against them and that undoubtedly is a question of fact and the finding of the appellate tribunal cannot be reopened But Mr Anand has attempted to challenge the correctness of this finding on the ground that it is entirely inconsistent with one material document on the record This document is the report made by Dina Nath on April 24 in which the incidents that took place on April 23 and 24 have been set out and the names of persons who took prominent part in the said incidents 852 have been enumerated This list includes the names of the five persons in question Dina Nath had however died at the date of the enquiry and so he could not give evidence Jagan Nath who was then the Superintendent of Police proved this report Mr Anand s grievance is that though the evidence of Jagan Nath had been accepted by the appellate tribunal in a part of its judgment it has failed to consider his testimony in dealing with the cases of these five persons In our opinion this argument is entirely misconceived It is not correct to say that the appellate tribunal has accepted the whole of Jagan Nath s evidence in any part of its judgment while dealing with the question about the conduct of the crowd the appellate tribunal considered the evidence of Rajinder Nath Mehta Ram Pratap and Amar Singh and held that part of their evidence which was corroborated by Jagan Nath and also partially by Puri must be believed that is all Besides the evidence of Jagan Nath itself does not carry the Bank s case any further against the five persons No doubt while proving the report of Dina Nath Jagan Nath first stated that the facts narrated therein were correct but in crossexamination when he was asked about some details mentioned in the report he added that the report was written by Dina Nath and he could not say anything about it Further he also admitted that during the course of his visit and stay at the Bank when the strike was going on he only knew three persons who took part in the activity which was described by Dina Nath in his reports Thus the evidence of Jagan Nath does not show that he clearly knew any of the five employees and the same comment obviously falls to be made about Dina Nath himself who made the report Therefore it is not accurate to say that the conclusion of the appellate tribunal in regard to these five cases suffers from any infirmity on which it can be successfully challenged before us besides the Bank apparently relied upon other evidence against these five persons and not the report of Dina Nath and that evidence has been disbelieved 853 Mr Anand has then urged that in directing reinstatement of 136 employees the appellate tribunal failed to consider the fact that in the meanwhile the Bank has employed additional hands and it would be unfair to the Bank to direct that these dismissed employees should be taken back The reinstatement order would lead to complications and the Bank may have to face the claims of those who have been employed in the meanwhile Mr Anand wanted to prove that the Bank had employed a large number of hands in the meanwhile by referring to the statement made by the Union in the bulletin and posters issued during the strike These statements seem to indicate that the Union complained that pending the strike the Bank was employing new hands But if the Bank wanted to urge this plea seriously it should have proved the relevant facts eg how many employees have been appointed and on what terms These are matters within the special knowledge of the Bank and they could have been proved very easily The Bank did not choose to prove these facts Indeed it does not appear that this plea was urged as a separate plea against the order of reinstatement before the appellate tribunal In any case in the absence of satisfactory materials it would be difficult to deal with this plea on the merits Besides if the Bank has failed to establish its specific case against any of the 136 employees there is no reason why the normal rule should not prevail and the employees should not get the relief of reinstatement The mere fact that the Bank may have employed some other persons in the meanwhile would not necessarily defeat such a claim for reinstatement As has been held by this Court in the National Transport and General Co Ltd vs The Workmen 1 however much the court may sympathise with the employer s difficulty caused by the fact that after the wrongful dismissals in question he had engaged fresh hands the court cannot overlook the claims of the employees who on the findings of the tribunals below had been wrongly dismissed In the case of such wrongful 1Civil Appeal No 312 of 1956 Decided by this Court on January 22 1957 108 854 dismissal the normal rule would be that the employees thus wrongfully dismissed must be reinstated The hardship in question observed this Court has been brought about by the precipitate action of the appellants themselves who dismissed their workmen without holding the usual enquiries after framing a proper charge against them If they had proceeded in the usual way and given a full and fair opportunity to the workmen to place their case before the enquiring authority the result may not have been so bard These observations are equally applicable to the conduct of the Bank in the present appeals The last argument urged by Mr Anand is that a large number of employees who are clamouring for reinstatement have secured employment on a fairly permanent basis and so it is unnecessary that they should be forced on the Bank This argument cannot be entertained because it has not been urged before the appellate tribunal and though it was sought to be raised before us Mr Anand fairly conceded that in the absence of any material it would not be possible for him to press this point Indeed it is the first two general points which were seriously pressed before us by Mr Anand and Mr Sanyal on behalf of the Bank Mr Anand no doubt raised three additional subsidiary points in Civil Appeal No 519 of 1958 in which he appeared but as we have pointed out there is no substance in any one of them In Civil Appeal No 520 of 1958 in which Mr Sanyal appeared for the Bank he did not challenge the findings recorded by the appellate tribunal in respect of the 10 employees concerned in the said appeal In the result both the appeals preferred by the Bank fail and are dismissed with costs

The appellant company was an all India concern and carried on the major part of its business in Calcutta Its clerical and non clerical staff in Bombay raised disputes relating to gratuity and age of retirement and contended that the scale of gratuity for both the clerical and non clerical staff provided by the existing scheme of the company was low and should be raised and that the age of retirement for the clerical staff should be raised from 55 to 60 The company resisted the claim on the ground that the existing scheme having been enforced on the basis of an agreement between the company and the large majority of its staff both clerical and non clerical working in Calcutta the same could not be changed at the instance of a small minority The tribunal rejected this contention and raised the age of retirement to 60 It also raised the scale of gratuity and made it uniform for the clerical and non clerical staff The appellant reiterated its contention in this Court Held that although it was advisable for an all India concern to have uniform conditions of service throughout the country that were not to be lightly changed industrial adjudication in 52 India being based on an industry cum region basis cases might arise where it would be necessary to change the uniform scheme so that it might accord with the prevailing conditions in the region where the Industrial Tribunal functioned in order to ensure fair conditions of service Consequently in the instant case where the Industrial Tribunal found that the existing scheme was neither adequate nor in accord with the prevailing conditions in the region it was not bound to refrain from altering either the age of retirement or the gratuity scheme on the ground the appellant s concern was an all India one Nor could the decision of the Tribunal to raise the age of retirement of the clerical staff to 60 be said to be an improper one Guest Keen Williams Private Limited Calcutta vs P J Sterling and Others referred to

Civil Appeal No4 of 1958 Appeal by special leave from the decision dated September 19 1956 of the Labour Appellate Tribunal of India Calcutta in Appeal No Cal 23556 B Sen section N Mukherjee and B N Ghose for the appellants Sukumar Ghose for the respondents 46 1959 October 16 The Judgment of the Court was delivered by WANCHOO J This appeal is directed against the decision of the Labour Appellate Tribunal of India in an industrial matter The appellant is a partnership concern carrying on business in the manufacture of pharmaceutical products There was a gratuity scheme in force in the appellant concern for a long time This scheme was modified by an award of the industrial tribunal dated August 18 1952 hereinafter called the Award and since then the modified scheme has been in force The financial condition of the appellant deteriorated and consequently it was compelled to retrench a number of workmen It therefore applied to the Appellate Tribunal under section 22 of the Industrial Disputes Appellate Tribunal Act No XLVIII of 1950 for permission to retrench 89 workmen The Appellate Tribunal granted permission for retrenchment of 75 workmen only Consequently after obtaining such permission the appellant retrenched the workmen and paid them compensation as provided in section 25F of the hereinafter called the Act Thereupon a dispute was raised by the retrenched workmen through the union in existence in the appellant concern for gratuity on retrenchment under the award This dispute was referred to the Second Industrial Tribunal West Bengal on March 23 1956 for adjudication in the following terms Whether the seventy five retrenched employees as per attached list are entitled to gratuity in addition to retrenchment benefits There was another matter included in the reference but we are not concerned with that in the present appeal The Industrial Tribunal came to the conclusion that the retrenched workmen were only entitled to relief as provided under section 25F of the Act and were not entitled to any gratuity under the Award over and above the compensation payable to them under the Act Then followed an appeal by the workmen to the Appellate Tribunal which was allowed The Appellate Tribunal held that the workmen were entitled to gratuity 47 under the Award as gratuity benefit therein was not a retrenchment benefit The appellant then applied for special leave to appeal which was granted and that is how the matter has come up before us The general question has been considered by this Court in The Indian Hume Pipe Company Limited vs Its Workmen 1 judgment which is being delivered today As the penultimate paragraph in that judgment shows special considerations may arise on the terms of agreements or awards in particular cases and it is this aspect which falls to be considered in the present appeal The sole question therefore for determination in this appeal is whether the retrenched workmen are entitled under the Award to gratuity provided therein in addition to retrenchment benefit under section 25F of the Act We may therefore reproduce here the relevant part of the Award which is in these terms The following gratuity scheme shalt be for cases of retrenchment or termination of service by the company for any reason other than misconduct or for cases of resignation with the consent of the management The gratuity will be paid up to a maximum of 15 months basic pay at the following rates The period of service to qualify for the gratuity shall be one year Consistently with the modification about the maximum qualifying service the basic pay for the purpose of gratuity shall be the average of the last 12 months basic pay drawn by the workmen concerned Then followed the rates and it was also provided that no gratuity would be payable before the completion of one year of service and that persons discharged for misconduct would not be entitled to any gratuity Finally it was provided that in case of death of an employee his widow or children or other dependents would be granted gratuity on the above basis It will be seen that the Award is a composite scheme providing for what is termed gratuity therein under three conditions namely 1 where there is retrenchment ii where there is termination of service for any 1 48 reason other than misconduct and iii where there is resignation with the consent of the management Though the word gratuity has been used to cover all these three cases it is clear that cases of retrench ment as such are also covered by the Award and payment to workmen retrenched has been called gratuity The name given to the payment is however not material and it is the nature of the payment that has to be looked into Now under this Award it is obvious that this payment on retrenchment though called gratuity is really nothing more nor less than compensation on account of retrenchment Further it is obvious from the terms of the Award that a retrenched workman could claim gratuity under the Award only oil account of retrenchment and could not claim it under the other two conditions therein In other words on a fair and reasonable construction of the Award what the retrenched workman got is only compensation for retrenchment and not any amount by way of gratuity properly so called This brings us to the provisions of the Act with respect to retrenchment Retrenchment is defined under section 2 oo and means the termination by the employer of the service of a workman for any reason whatsoever otherwise than as a punishment inflicted by way of disciplinary action but does not include a voluntary retirement of the workman or b retirement of the workman on reaching the age of superan nuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf or c termination of the service of a workman on the ground of continued illhealth If this definition is compared with the provisions of the Award it will be found that the Award provides payment not only for retrenchment as such but also for other termination of service which is specifically excepted from the definition of retrenchment Clauses a and b of section 2 oo are provided in the Award by the words cases of resignation with the consent of the management Similarly clause c of section 2 oo is provided for by the words termination of service by the company for any reason other 49 than misconduct It is therefore obvious that the Award provides not only for payment on retrenchment but also for payment on termination of service for any reason other than misconduct and on retirement It is thus a composite scheme and merely because the payment is called gratuity even where it is payable on account of retrenchment it cannot be anything other than compensation so far as the part of the Award relating to retrenchment is concerned Chapter VA containing sections 25F and 25J with which we are concerned was added in the Act by Act 43 of 1953 with effect from October 24 1953 The reason for this addition was that though there were schemes in force in many concerns for payment to workmen on retrenchment there were many other concerns where no such schemes were in force and the workmen got nothing on retrenchment unless there was an award by a Tribunal Besides where schemes were in force or awards were made rates of payment on retrenchment varied The legislature therefore thought it fit by enacting Chapter VA to provide by section 25F a uniform minimum payment to workmen on retrenchment This payment was called compensation Section 25F provides that no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched without payment of compensation which shall be equivalent to fifteen days average pay for every completed year of service or any part thereof in excess of six months Then comes section 25J sub section 1 whereof provides that the provisions of Chapter VA shall have effect notwithstanding anything inconsistent therewith contained in any other law including standing orders There is however a proviso to sub section 1 which says that nothing contained in the Act shall have effect to derogate from any right which a workman has under any award for the time being in operation or any contract with the employer This clearly means that if by any award or contract a workman is entitled to something more as retrenchment compensation than is provided by section 25F the workman will be entitled to get that and the provisions of section 25F will not derogate 7 50 from that right of the workman ie will not reduce the compensation provided under the award or contract to the level provided under section 25F It is obvious that it was not the intention of the legislature that a work man on retrenchment should get compensation twiceie once under the Act and once under the scheme in force providing for retrenchment compensation by whatever name the payment might have been called We cannot agree with the Appellate Tribunal that the payment of gratuity in the event of retrenchment has nothing to do with the compensation payable to a workman under section 25F of the Act The Appellate Tribunal seems to have been carried away by the word gratuity used in the Award and it seems to think that gratuity on retrenchment is something different from compensation on retrenchment We are of opinion that this is not correct Whether it is called gratuity or compensation it is in substance a payment to the workman on account of retrenchment and if a scheme like the present specifically provides payment for retrenchment as defined in section 200 we see no justification for compelling that payment twice over once under section 25F and again under the scheme in force in the concern The matter would be different if the scheme in force in any concern or any award provides gratuity which is different in nature from the retrenchment compensation under section 25F We also cannot agree with the Appellate Tribunal that this gratuity under the Award in this case is not a retrenchment benefit We have already analysed the Award above and shown that it deals with three contingencies and one of them is payment due on retrenchment On the terms therefore of the Award in this case it must be held that gratuity provided therein on retrenchment is nothing more nor less than retrenchment compensation provided under section 25F of the Act and the workmen are only entitled to one or the other whichever is more advantageous to them in view of section 25J In the circumstances we are of opinion that the Industrial Tribunal was right in holding that the scheme of the Award in this case providing for gratuity on retrenchment was exacty the same as compensation 51 provided under section 25F and as the provisions of section 25F are better than the provisions of the Award in respect of retrenchment the workmen would be entitled to compensation provided under section 25F only and not both under that section and under the Award The appellant has already paid the compensation provided under section 25F the workmen therefore are not entitled to anything more under the Award We therefore allow the appeal set aside the decision of the Appellate Tribunal and restore that of the Industrial Tribunal in this matter As this question has come up to this Court for the first time we order the parties to bear their own costs Appeal allowed

The question for determination in this appeal arising out of a suit filed by the appellant under section 53 of the Charitable and Religious Trusts Act 1920 was whether the ancient temple of Shri Balaji Venkatesh at Nasik and its Sansthan constituted a charitable and religious trust within the meaning of the Act The deity was Swayambhu and revealed itself in a dream to one Ganapati Maharaj who at its behest brought the deity from the river Tambraparni and installed it in his house Ganapati s son Timmaya who removed the deity to Nasik took the idol to the courts of Rulers and acquired the properties in suit consisting of lands and cash Timmaya s eldest son obtained an extensive plot of land as a gift from the Peshwa and thereon built a vast temple with a Sabha Mandap which could accommodate no less than 600 persons and installed the deity in the first floor with a staircase leading straight to it The Hindu public has been worshipping at the temple for more than 200 years and there was no evidence to show that they had ever been excluded from it and any gift had ever been refused The ceremonies performed in the temple were appropriate to a public deity It was admitted by the sons of Timmaya in Tahanama executed by them in 1774 that the Inam villages were granted for the worship of the deity and the temple belonged to the Sansthan none of them having any share in it In the Tharav Yadi of 1800 the maintenance allowance provided by the said Tahanama for the different branches of the family was described as Vetan The Inam Commissioner functioning under Act 11 of 1852 recorded the Inam villages as permanently held Debasthan inams at the instance of the then Sthanic and on the basis of original sanads filed by him reversing the decision of the Assistant Inam Commissioner who had recorded them as personal inams Those sanads were not filed in the suit In 1931 the appellant published a history of the Sansthan wherein it was clearly stated that the Sansthan was not a private or family property but was the property of the deity the members of the family being merely the managers The deity was not made a party to the suit although representatives of the Hindu public were joined as 98 774 parties under section 1 r 8 of the Code of Civil Procedure The High Court while it concurred with the trial judge in holding that the deity was a public deity and that its Sansthan constituted a public trust was however inclined to hold that some of the properties might be personal properties of the appellant but refused to grant any such declaration on the ground that no effective decree could be passed against the deity in its absence It was contended on behalf of the appellant in this court that the courts below had misconstrued the document and were wrong in drawing the inferences they did and that the burden of proof had been wrongly placed on the appellant to prove by positive evidence that the deity was a family deity and the properties his private properties Held that the courts below were right in coming to the conclusion they reached and the appeal must fail A mistaken inference drawn from documents is no less a finding of fact if there is no misconstruction of the documents and no misconstruction of documents having been proved the appellant could not succeed An admission is the best evidence that an opposing party can rely upon and although it is not conclusive is often decisive of the matter unless it can be successfully withdrawn or proved to be erroneous The expression burden of proof means one of two things 1 that a party has to prove an allegation before it is entitled to a judgment in its favour or 2 that the one or the other of the two contending parties has to introduce evidence on a contested issue The question of onus is material only where the party on which it is placed would eventually lose if it failed to discharge the same Where issues are however joined evidence is led and such evidence can be weighed in order to determine the issues the question of burden becomes academic In the present case if the onus lay on any party it was clearly on the appellant to prove by cogent evidence that the admissions made by his predecessors in title and by him were either erroneous or unavailable and this he had failed to do The earlier sanads admittedly in his possession not having been produced and those produced not being in any way inconsistent with the said admissions or the revenue records no question of any misconstruction of documents could arise Babu Bhagwan Din vs Gir Nar Saroon 1939 LR 67 IA 1 held inapplicable Srinivasa Chariar vs Evalappa Mudaliar 1922 LR 49 IA 237 applied The entries made in the Inam Register prepared under Act 11 of 1852 were entitled to great weight and although they could not displace actual and authentic evidence in an individual case it was well settled that in absence of such evidence they must prevail 775 Arunachalam Chetty vs Venkatachalapathi Guru Swamigal 1919 LR 46 IA 204 referred to Held further that the vastness of the temple the mode of its construction the long user by the public as of right grant of land and cash by the Rulers taken along with other relevant factors were consistent only with the public nature of the endowment Narayanan vs Hindu Religious Endowments Board AIR 1938 Mad 209 relied on The absence of a dome or Kalas on the temple was not by itself a decisive factor as to its public character nor was consecration imperative of a deity that was Swayambhu Nor is the temporary movement of the idol from place to place inconsistent with its public character Ram Soondur Thakoor vs Taruk Chunder Turkoruttum 1873 19 Weekly Reporter 28 Hari Raghunath vs Apantii Bhikajii Bom 466 Prematha Nath Mullick vs Pradyumna Kumar Mullick 1925 LR 52 IA 245 and Venkatachala vs Sambasiva AIR 1927 Mad 465 52 MLJ 288 considered The defect in the frame of such a suit resulting from the omission of the deity as a party to it cannot be remedied by the subsequent addition of the representatives of the Hindu Public as parties to it and no effective decree could be passed against the deity in such a suit

Civil Appeal No86 of 1958 Appeal by special leave from the Award dated November 15 1956 of the Industrial Tribunal Assam at Dhubri M C Setalvad Attorney General for India section N Mukherjee and B N Ghose for the appellants Niharendu Dutt Mazumdar and Dipak Dutta Choudhri for the respondents October 14 The Judgment of the Court was delivered by SINHA C J This is an appeal by special leave from the Award dated November 15 1956 made by the Industrial Tribunal Assam The dispute arose between the employers the Indian General Navigation 3 Railway Company Limited carrying on business at No 4 Fairlie Place Calcutta and the Rivers Steam Navigation Company Limited carrying on business at No 2 Fairlie Place Calcutta which will be referred to in the course of this judgment as the appellants and their workmen at Dhubri Ghat represented by the Dhubri Transshipment Labour Union and Dhubri Local Ghat Transhipment Labour Union Dhubri which will be referred to hereinafter as the respondents The Award aforesaid was published in the Assam Gazette on December 19 1956 It is necessary to state the following facts in order to appreciate the points arising for decision in this case The appellants carry on business of inland water transport in North East India and in Pakistan in association with each other and are commonly known as the Joint Steamer Companies The appellants jointly maintain a large number of wharves jetties godowns etc at different river stations in India and in Pakistan for the purposes of their business One such station is at Dhubri in Assam At that station a large number of workmen are employed for the purpose of loading and unloading the appellant s vessels and for transshipping goods from railway wagons to the appellants vessels and vice versa Before May 1954 such workmen were employed by a contractor called the Assam Labour Supply Syndicate which will hereinafter be referred to as the Syndicate Those workmen were organized under two labour unions called 1 the Dhubri Transhipment Labour Union which was affiliated to the Indian National Trade Union Congress which is a Federation of Trade Unions and 2 the Dhubri Local Ghat Transhipment Labour Union There were differences between the Syndicate and its employees who made certain demands and has threatened to go on strike to enforce their demands Conciliation proceedings under the industrial Disputes Act 1947 which will hereinafter be referred to as the Act took place in the course of which certain agreements to be referred to in greater detail hereinafter were reached between the Syndicate and the respondents on 4 February 23 1953 and March 30 1953 On May 3 1954 by virtue of a Memorandum of that date an agreement was arrived at between the appellants and the respondents whereby the appellants agreed that instead of employing a contractor to handle the work of loading and unloading and transhipment of goods the appellants would employ supervisors and agents to handle the work pending the proposed Tripartite Conference to decide the issue of permanent direct employment of employees for the future The appellants also agreed to maintain continuity of service of the workmen and the existing terms and conditions of their service The Tripartite Conference contemplated by the Agreement was to consist of the represent natives of the appellants the workmen and the Government of Assam As a result of the Tripartite Con ference held on July 9 10 1954 an agreement was reached between the appellants and the Indian National Trade Union Congress which was incorporated in the form of a letter dated July 16 1954 from the General Secretary of the Congress Assam Branch Dhubri Ghat to the several Unions at different stations including Dhubri As a result of this agreement the appellants agreed inter alia to introduce permanent direct employment at all the transhipment ghats of Assam progressively without prejudicing the agreement of May 3 1954 It will be necessary hereinafter to consider some of the terms of this agreement in detail when dealing with the several points in controversy between the parties After the agreement aforesaid there arose certain differences amongst the workmen represented by the two Unions aforesaid in respect of the election of their office bearers As a result of those internal dissensions amongst the employees two rival groups each claiming to represent a section of the workmen came into existence The appellants thereupon notified the Indian National Trade Unions Congress that recognition to the Dhubri Transhipment Labour Union was being withdrawn pending satisfactory settlement of the internal differences Thus came into existence a new Trade Union known as the 5 Dhubri Transhipment Workers Union in or about July 1955 Meanwhile between May 2 1955 and July 31 1955 the appellant s on five different occasions and on different charges dismissed eight of their employees after making such inquiries as they thought necessary against those workmen and after giving them each an opportunity of explaining their conduct On July 21 1955 one B Chakravarty Secretary Dhubri Transhipment Labour Union served a notice on the appellants under sub section i of section 22 of the Act that I propose to call a strike on the 11th August 1955 from zero hours if the following demands be not fulfilled within fourteen days on receipt of this notice Then followed an annexure containing ten demands which need not be set out here A similar notice was also served by the Secretary Dhubri Local Ghat Transhipment Labour Union on the same date the annexure in this case containing eleven demands On July 26 1955 the Conciliation Officer of the Government of Assam received the notice of the strike He held conciliation proceedings on August 6 1955 but those proceedings ended abruptly without arriving at any settlement On August 8 1955 the said Conciliation Officer who was the Labour Officer of Gauhati by his letter bearing the same date informed the Labour Commissioner Assam about the failure of the conciliation proceedings and forwarded copies of that letter to the appellants and the workmen s Union at Dhubri Without waiting for the statutory period of seven days from the date of failure of the conciliation proceedings a large number of workmen concerned went on strike with effect from the mid night of August 10 1953 in pursuance of the notices of strike aforesaid They were alleged by the appellants not only to have gone on strike but also to have forcibly entered the appellants jetties and other working places and prevented the loyal workmen who were willing to carry on the transhipment work from carrying on their normal work The strike is therefore alleged to have been illegal On August 11 1955 the District Magistrate Goal para promulgated an order under 6 section 144 of the Code of Criminal Procedure prohibiting the holding of any meetings demonstrations pro cessions or causing threat obstructions annoyance or injury directed against the persons lawfully employed in the following areas in the Dhabri Town and its suburbs Then followed a specification of the ghats to which the prohibition applied This order was to remain in force till September 10 1955 In consequence of the aforesaid strike which was treated by the appellants as illegal they declared a lock out on August 11 1955 in respect of 91 workmen named in the notice issued to them Another lock out notice was issued on August 13 1955 in respect of a much larger number of workmen in different groups described as belonging to a particular Sardar s gang The legality of these lock out notices was seriously challenged by the respondents The Workers Union called off the strike with effect from August 19 and the appellants lifted the lock out with effect from August 27 The appellants took proceedings against those employees who had taken part in the strike They suspended those workmen who were alleged to have not only taken part in the strike but also had obstructed those workmen who were willing to work But those workmen who were alleged to have only participated in the strike were not suspended during the inquiry On September 8 1955 37 of the employees were convicted under section 188 of the Indian Penal Code for violation of the aforesaid order under section 144 of the Criminal Procedure Code with the result that on September 9 they were Dismissed by the appellants Another batch of 52 employees were convicted under a 143188 of the Indian Penal Code on February 171956 Meanwhile on September 13 1955 the Government of Assam bad constituted a Board of Conciliation consisting of three persons namely 1 Labour Commissioner of Assam as the Chairman 2 D N Sarma of Gauhati as representing the interest of the employees and 3 P J Rayfield as representing the interest of the employers with a view to promoting settlement of the dispute between the appellants and their workmen 7 at Dhubri The appellants alleged that they had dismissed their workmen as a result of the inquiry held by their nominee into the conduct of the persons who had participated in the alleged illegal strike and or had caused obstruction before they became aware of the constitution of the Board of Conciliation as aforesaid On coming to know of the constitution of the said Board of Conciliation the appellants subsequently passed orders holding the order of dismissal of the two hundred and twenty three employees in abeyance pending the disposal of their application to the Board for permission to dismiss the said two hundred and twenty three employees The Board of Conciliation by majority P J Rayfield dissenting came to the conclusion that as regard the dismissal of the thirty seven workmen the Management had violated section 33 of the Act because in their opinion the proceedings of the Board of Conciliation had commenced from August 26 and not from September 13 As regards the permission sought by the Management to dismiss the suspended two hundred and twenty three workmen by a similar majority it was held that although the strike prima facie was illegal it was not unjustified The dissenting member P J Rayfield recorded his note of dissent to the effect that the conciliation proceedings commenced on September 13 1955 and not earlier as decided by the majority and consequently the dismissal of thethirty seven workmen discharge of 37 workmen as stated in the note of dissent was not in contravention of section 33 of the Act and that the permission to dismiss the two hundred and twenty three workmen on the ground that they had been found guilty by a departmental inquiry of participating in an illegal strike and forcibly preventing others from attending work should have been granted This conclusion was sought to be based on the alleged legal position that the Board had no power to withhold the permission applied for and had not the power to decide as to the kind of punishment to be imposed upon the workmen who had admittedly taken part in a strike which had unanimously been held to be illegal The dissenting note also sought to 8 show that the finding of the majority of the Board that the strike was justified was not based on a proper appreciation of the facts of the case The report of the Board of Conciliation was published on Decem ber 5 1955 As the parties had come to a stalemate the Government of Assam by its order dated December 7 1955as subsequently amended by its order dated January 23 1956 referred the dispute to Shri Radhanath Hazarika as an Industrial Tribunal for the adjudication of the dispute on the following issues 1 a Are the Management of RSN IGN Railway Company Limited justified in dismissing the following eight workers Manzoor Hussain Sudam Singh ldrish Tazmal Hussain So SK Gaffur Jahangir Sardar Keayamat Hossain Panchu Shah and Ram Ekbal Singh b If not what relief if any are they entitled to 2 a Are the Management of RSN IGN Railway Company Limited justified in dismissing andor suspending as the case may be 260 workers at Dhubri Ghat on or about the 29th August 1955 b If not to what relief if any are the workers entitled The parties to the dispute filed their written statement before the Tribunal and tendered both oral and documentary evidence before it The Tribunal made its Award which was published in the Assam Gazette on December 19 1956 as already stated The Tribunal held that the strike though illegal was justified but that in the absence of standing orders whereby participation in any illegal strike could justify a punishment of dismissal the appellants were not entitled to dismiss those workmen whose case was before the Tribunal The Tribunal by its Award directed reinstatement of 208 out of 260 workmen whom the appellants had dismissed or had sought permission to dismiss The remaining 52 workmen were ordered to be refused reinstatement on the ground that they had been convicted under section 143 of the Indian Penal Code which implied an offence involving 9 use of criminal force It also directed the appellants to pay full wages and allowances from August 20 1955 till the date of reinstatement of the workmen who had been directed to be reinstated The Tribunal also held that the dismissal of the eight workmen who were the subject matter of the issue 1a aforesaid of the Reference was bad and therefore those 8 workmen were also ordered to be reinstated with back wages The present appeal by special leave is directed against the said Award of the Tribunal Before we deal with the merits of the controversy between the parties it is convenient at this stage to deal with certain arguments by way of preliminary objections to the maintainability and competence of the appeal raised on behalf of the respondents Those objections are of a three fold character 1 no appeal lies 2 the appellants did not exhaust their statutory remedies under section 17A of the Act and 3 the appeal is not competent also for the reason that the Government of Assam has not been impleaded as party respondent to the appeal In our opinion there is no substance in any one of these objections With reference to the first ground the argument runs as follows The Tribunal made its Award on November 15 1956 and submitted the same to the Assam Government under section 15 of the Act On December 8 of that year the Government of Assam directed the said Award to be published in the Assam Gazette and it was so published on December 19 1956 According to the order of the State Government the Award became enforceable under section 17A on the expiry of 30 days from the date of publication namely December 19 1956 Accordingly the Award became enforceable on January 181957 and acquired the force of law by the operation of the statute By virtue of section 172 of the Act the Award became final and shall not be called in question by any court in any manner whatsoever subject to the provisions of section 17A It was therefore further contended that in the events which had happened before January 18 1957 the Award had become enforceable and had 2 10 acquired the force of law by operation of the statute had thus passed beyond the pale of litigation and adjudication by any court of law This argument has only to be stated to be rejected in view of the provisions of the Constitution It is manifest that the provisions of the Act are subject to the paramount law as laid down in the Constitution Article 136 of the Constitution under which this Court grants special leave to appeal in this case from a determination of the Tribunal cannot be read as subject to the provisions of the Act as the argument on behalf of the respondents would postulate The provisions of the Act must be read subject to the over riding provisions of the Constitution in this case article 136 Therefore whatever finality may be claimed under the provisions of the Act in respect of the Award by virtue of sections 17 and 17A of the Act it must necessarily be subject to the result of the determination of the appeal by special leave It was further contended that the Award had merged in the orders of the Government on publication in the Official Gazette under section 17 of the Act but this is the same argument stated in another form and any argument based on the provisions of the Act making the Award final and enforceable must always be read as being subject to the decision of this Court in the event of special leave being granted against such determination by the Tribunal and as adopted by the Government The same argument was advanced in still another form namely that the appellants should have moved this Court before the lease of the time contemplated by section 17 and section 17A of the Act that is to say before January 18 1957 Apart from the consideration that this argument tends to curtail the period of limitation prescribed by this Court by statutory rules the operation of sections 17 and 17A of the Act is not automatically stayed by making an application for special leave It is only by virtue of specific orders made by this Court staying the operation of the Award or some such order that the appellant becomes for the time being immune from the operation of those provisions of the 11 Act which impose penalties for the infringement of the terms of the Award Adverting to the second branch of the preliminary objection it appears that the provisions of section 17A particularly the provisos have been sought to be pressed in aid of the respondents contention without realizing that the Award in question in this case does not come within the purview of either of those provisos The State Government was not a party to the Industrial dispute nor was it an Award given by a National Tribunal Hence there is no substance in the contention that the appellants did not exhaust their statutory remedies under section 17A of the Act The third branch of the preliminary objection is based on the contention that the Government of Assam was a necessary and proper party as it had acted under delegated powers of legislation under the Act in making the Award enforceable and giving it the force of law It is a little difficult to appreciate how the State Government became a necessary or proper party to this appeal The State Government does not play any part in the proceedings except referring the dispute to the Tribunal under section 10 of the Act The publication of the Award under section 17 is automatic on receipt of the same by the Government Its coining into operation is also not subject to any action on the part of the State Government unless the case is brought within the purview of either of the provisos to section 17A In view of these considerations it must be held that there is no merit in the preliminary objection The appeal must therefore be determined on its merits On the merits of the controversy between the parties it has been argued by the learned counsel for the appellants that the Tribunal having held the strike to be illegal has erred in holding that it was justified that an illegal strike could never be justified and that the Tribunal was wholly in error in losing sight of the fact that the appellants were carrying on what had been notified as a public utility service In this connection it was further argued that in view of 12 the proviso to section 101 of the Act the State Government was bound to make a Reference of the dispute to an Industrial Tribunal when notice of strike under section 22 of the Act had already been given and that therefore the failure of the employer to enter into direct negotiations with the employees upon receipt of the strike notice could not be used by the Tribunal for coming to the finding that the strike was justified It was also urged that the Tribunal had clearly erred in holding that the lock out declared by the appellants was illegal and that in coming that conclusion it had over looked the provisions of section 243 of the Act The Tribunal it was further argued had erred in holding that in the absence of standing orders to the effect that participation in an illegal strike is a gross misconduct an employer could not dismiss its workmen for mere participation in an illegal strike Assuming that the last stated argument was not well founded it was argued that the standing orders governing the relations between the Syndicate and the workmen would also govern the relations between the appellants and the workmen as a result of the agreement aforesaid whereby the appellants undertook all the liabilities of the Syndicate in relation to the workmen and guaranteed to them the same conditions of service In this connection it was also argued that the Tribunal bad made a serious mistake of record in treating the standing orders of the Syndicate as a mere draft and therefore of no binding force as between the employers and the employees that the Tribunal erred while considering the case of the eight workmen dismissed before the commencement of the strike in proceeding upon an unfounded assumption that no charge sheets had been served upon those workmen during the inquiry against them and that therefore the Award in so far as it related to those 8 workmen was entirely erroneous As against the two hundred and eight workmen ordered by the Tribunal to be reinstated it was argued that the departmental inquiry held by the appellants had resulted in the distinct finding that they bad not only participated in the illegal strike but had also instigated loyal workmen 13 to join in the illegal strike and had obstructed tranship ment work by loyal workmen In this connection it was also argued that in any view of the matter the thirty seven persons who had been convicted by the criminal court under section 188 of the Indian Penal Code for having transgressed the prohibitions contained in the prohibitory order under section 144 of the Code of Criminal Procedure were clearly liable to be dismissed on the findings of the criminal court itself apart from any other considerations bearing on the regularity of the inquiry against them that the Tribunal was in error in holdidg that the inquiry against the dismissed workmen was not in accordance with the prescribed procedure and lastly that this was not a case of reinstatement of the dismissed workmen and that only compensation should have been awarded to them On behalf of the respondents their learned counsel besides raising the preliminary objection already dealt with urged that the Tribunal was fully justified in holding that the strike though illegal was perfectly justified and virtually provoked by the appellants Though in the statement of the case the argument had been raised that the strike could not be illegal because the notification declaring the service at the ghats to be public utility service was ultra vires that argument was not persisted in before us but it was vehemently argued that there were no standing orders either of the Syndicate or of the appellants which could govern the service conditions of the workmen and that in any event mere participation in an illegal strike would not entitle the employers to dismiss those workmen who had joined the strike that the dismissal orders in all cases were sheer acts of victimization and unfair labour practice It was also sought to be argued that the lock out was entirely illegal and that in any view of the matter its continuance after the strike had been called of was wholly unjustified and against the principles of social justice Further it was urged that the appellants had dismissed andor suspended 260 workmen without framing any specific charges against them that the dismissal of the eight workmen 14 in view of the incidents before the commencement of the strike was also illegal and in any event irregular because it was urged no specific charges had been framed against them It was also sought to be argued that the notice inviting the workmen to join their work being unconditional without any reservations amounted to a condonation of the strike and therefore the dismissal orders against the two hundred and sixty workmen were bad in law Some other arguments also were advanced on behalf the respondents but we do not propose to take notice of them because they were ultimately found to be without any foundation in the record of the case As a matter of fact the arguments on behalf of the respondents were not marked by that strict adherence to the record of the case or the case made out before the Tribunal as ought to be the case before courts of justice generally and certainly before the highest Court in the land Now turning to the merits it is better to deal with the first issue first that is to say whether the dismissal of the eight workmen named in the Issue as amended was justified and if not to what relief they were entitled The Tribunal dealt with the individual cases of those workmen and came to the conclusion that the dismissal of none of them was justified and that therefore all of them were entitled to reinstatement with all their back wages and other benefits accruing to them from the date of their suspension and subsequent dismissal until the date of their reinstatement minus what had been paid to them Thus the first issue in both the parts was decided entirely in favour of the workmen We have therefore to examine how far the determination of Tribunal on the first issue is open to question The cases of Manzoor Hussain Sudama Singh Idrish and Tazmal Hussain have been dealt with together by the Tribunal below These four workmen had been dismissed by the appellants upon a report made by Rayfield the enquiring officer under the appellants on the allegation that they had assaulted their Labour Supervisor section P Tevari on May 2 1955 This charge against those four workmen was examined by 15 a Magistrate who tried them for the alleged assault on Tewari The Magistrate found them not guilty and acquitted them by his judgment given in April 1956 The departmental inquiry by Rayfield was held on May 17 1955 when a member of witnesses were examined by him on behalf of the appellants In their joint written statement these four workmen stated that as the police case was pending against them in regard to these very charges they were not in a position to make any further statement in their defence The Tribunal came to the conclusion that on the material before it had not been made out that Tewari had been actually assaulted while on duty and that the dismissal order was passed possibly with a view to frighten the other workmen and to satisfy the whims of Tewari We have examined the record and we do not find any justification for differing from the conclusions of the Tribunal With reference to the case against Panchu Shah and Ram Ekbal Singh it appears that the Tribunal definitely came to the conclusion that their dismissal order was vitiated because it was an act of victimization and was mala fide In the face of this clear findingwe do not think that we can interfere with the determination of the Tribunal in respect of these two workmen But the case against Jahangir Sardar and Keayamat Hussain stands on a different footing The charge against Jahangir was two fold namely 1 wilful insubordination and disobedience and 2 conduct prejudicial to good order and discipline To these charges Jahangir demurred and objected saying he could not understand the reasons for the charge sheet On this demurrer a letter dated May 7 1955 was issued to him giving him the details of the acts charged against him with reference to the time date and place The charge against Keayamat was similarly a two fold one namely 1 disorderly behaviour and inciting others to disturbance and violence and 2 conduct prejudicial to good order and discipline Keayamat also demurred to the charge in the same way that it was vague and that 16 he was not aware of anything wrong having been done by him On May 7 Keayamat was also given a similar letter explaining to him the details of the charge aforesaid with reference to the time place and date of the acts which formed the gravamen of the charge against him A number of witnesses were examined by Raymond who held the inquiry In both these cases the Tribunal refused to accept the result of the inquiry chiefly on the ground that no specific charge had been laid against them and that the allegations were much too vague In recording this finding the Tribunal has fallen into a grievous error of record It has completely omitted to consider the letter issued to both these workmen on May 7 giving full particulars of the charges against them If it had considered that letter issued to both these workmen it would not have fallen into this serious error which has vitiated its award in respect of them The Tribunal further proceeded to comment on the evidence led before the inquiring officer and remarked that the evidence was meager or insufficient It also observed that the degree of proof even in the departmental enquiry is the same as required in a Court of Law In our opinion the Tribunal misdirected itself in looking into the sufficiency of proof led before the inquiring officer as if it was sitting in appeal on the decision of the employers In the case of these two employees there is no finding by the Tribunal that the order of dismissal against them was actuated by any mala fides or was an act of victimization In view of these considerations the dismissal order made by the appellants on a proper inquiry after giving the workmen concerned sufficient opportunity of explaining their conduct must be upheld The appeal in respect of these two workmen must therefore be allowed and the order of the Tribunal in respect of them accordingly set aside The order of the Tribunal in respect of the other six workmen is confirmed Having dealt with the orders of dismissal in respect of the incidents before the strike of August 11 1955 17 we now turn to the strike itself The first question that arises in this connection is whether the strike was illegal as alleged by the appellants and as found by the Tribunal The learned counsel for the respondents sought to reopen the finding about the illegality of the strike basing his submissions mainly on the contention that there were no conciliation proceedings pending either in fact or in law on the date of the strike and that therefore the finding of the Tribunal was not correct It was not disputed on behalf of the respondents that the notices of the strike given by the workmen on July 21 1955 had been duly received by the Conciliation Officer on July 26 1955 and that the conciliation proceedings were commenced on August 6 1955 What was contended on their behalf was that the proceedings had to be stopped as it appears from the record of those proceedings without any settlement of the dispute as the workers representative expressed their inability to take further part in the proceedings on a question of leave to their other representatives We shall examine the question later as to which party was to blame for the break down of the conciliation proceedings at the very outset It is enough to observe that under section 20 of the Act the conciliation proceedings must be deemed to have commenced on July 26 1955 when the notice of the strike was received by the Conciliation Officer and those proceedings shall be deemed to have concluded when the report of the Conciliation Officer is received by the Government In this case the report to the Government was made by the Conciliation Officer on August 8 1955 It is not absolutely clear as to when this report of the Conciliation Officer was actually received by the Government It is clear therefore that the conciliation proceedings certainly lasted between July 26 and August 8 1955 The strike having commenced on August 11 was clearly illegal in view of the provisions of section 22 of the Act We must therefore hold in agreement with the Tribunal that the strike was clearly illegal The Tribunal having held that the strike was illegal proceeded to discuss the question whether it 3 18 was justified and came to the conclusion that it was perfectly justified In the first place it is a little difficult to understand how a strike in respect of a public utility service which is clearly illegal could at the same time be characterized as perfectly justified These two conclusions cannot in law co exist The law has made a distinction between a strike which is illegal and one which is not but it has not made any distinction between an illegal strike which may be said to be justifiable and one which is not justifiable This distinction is not warranted by the Act and is wholly misconceived specially in the case of employees in a public utility service Every one participating in an illegal strike is liable to be dealt with departmentally of course subject to the action of the Department being questioned before an Industrial Tribunal but it is not permissible to characterize an illegal strike as justifiable The only question of practical importance which may arise in the case of an illegal strike would be the kind or quantum of punishment and that of course has to be modulated in accordance with the facts and circumstances of each case Therefore the tendency to condone what has been declared to be illegal by statute must be deprecated and it must be clearly understood by those who take part in an illegal strike that thereby they make themselves liable to be dealt with by their employers There may be reasons for distinguishing the case of those who may have acted as mere dumb driven cattle from those who have taken an active part in fomenting the trouble and instigating workmen to join such a strike or have taken recourse to violence Apart from the basic error of treating the illegal strike to be perfectly justified the Tribunal has indulged in language which is not characteristic of a judicial approach The following observations by the Tribunal in the course of its inordinately long Award covering about 42 pages in print are illustrative of the attitude of the Tribunal towards the appellants By this letter the Company s Joint Agent at Dhubri instead of taking a friendly attitude approached the District Magistrate asking for police help 19 If the Company s Agent at Dhubri had the honest intention he could have immediately moved the appropriate authority to come immediately to the spot to stop the proposed strike But instead of that he has provoked the Union by adopting this back door policy to suppress the demands of the workers It was really unfair on the part of the Agent It seems that he bad mala fide intention For this outburst of the Tribunal justification is sought in the letter which D J Milner the Joint Agent of the appellants wrote to the Secretary to the Government of Assam Transport and Industries Department Labour Commissioner Government of Assam Superintendent of Police Goalpara District Labour Officer Lower Assam and General Secretary INTUC Assam Branch on August 9 1955 informing them of the threatened strike The last paragraph of the letter explained the reasons for the long letter addressed by the Joint Agent In the interest of maintaining this vital link in Assam s flood stricken communications and protecting our property and that of the Railway as well as our own staff Railway Staff and loyal laborers we have to request that adequate police be available at each of our Ghats from shortly prior to midnight on the 10th instant in order that unlawful damage may not be caused by these illegal strikers who will be acting in defiance of Government regulations and accepted industrial dispute procedure We see nothing sinister in this letter justifying the remarks by the Tribunal quoted above It was the usual request for the maintenance of public peace and for the prevention of acts of violence by misguided persons It was also addressed to the INTUC the guardian of Labour On the same date that is August 91955 B Chakravarty the Secretary of the Dhubri Transhipment Labour Union addressed a letter to the Superintendent of Police Goalpara and Deputy Commissioner Goalpara alleging that the Joint Agent of the appellants had instructed the officers in charge of the jetties at the Ghats to raise a hallah after the zero hour of August 11 1955 that the labourers of the 20 Transhipment Department were looting the goods of the ship when they would go for picketing purposes to strengthen their strike Those allegations of the Secretary the Tribunal has taken as proof of those allegations and has observed it is clear that Mr Milner hatched a plan to create a trouble and the Secretary of the Union got scent of all the secret arrangements made by the Company to create disturbance at the Ghats just immediately after the strike is declared This is the first reason assigned by the Tribunal for coming to the conclusion that the strike was perfectly justified The second reason for coming to this conclusion according to the Tribunal is to be found in the Conciliation Officer s report that the appellants did not agree to grant leave to the labour representatives to sit in the conciliation proceedings which were held on August 6 1955 The Tribunal has observed that it appeared also from the appellant s attitude in refusing to grant leave to the five representatives of the Union that the appellants were not inclined to give facilities for the conciliation proceedings Is this observation justified on the record as it stands As already indicated the Conciliation Officer received a copy of the strike notice on July 26 1955 He fixed August 6 1955 10 am at Dhubri for the conciliation proceedings The parties to the dispute were apprised of this meeting of August 6 1955 on August 1 1955 ext O p 119 From the proceedings of the Conciliation Officer it appears that the Union applied to the appellants for leave to five workmen officials of the Union to enable them to represent the workmen in the conciliation proceedings The attitude of the appellants was that they were agreeable to grant leave even on a verbal request if the request came from those individual workmen either direct or through the Union but the appellants were not prepared to grant leave on a petition from the Union alone On the other hand the Union was not agreeable that the petition for leave should be made by the workmen themselves and the Union insisted that it had the right to apply for leave on behalf of those workmen Upon this the Union 21 did not take any further part in the proceedings It would be a travesty of facts to suggest that the appellants were not prepared to grant leave to those five workmen In the first instance leave should have been applied for before the date fixed for the commencement of the conciliation proceedings Secondly the application should have been made by the workmen concerned either direct or through the Union The Tribunal seems to have been under the impression that this attitude of the appellants amounted to a breach of one of the terms of the agreement as a result of the Tripartite Conference aforesaid That again is an assumption which is not justified by the terms of the Agreement Secondly the five workmen selected for representing the workmen in the conciliation proceedings should have applied in good time to their employers for leave for the purpose but what we find is that an application ext M at p 118 was made on August 6 1955 not by those workmen themselves but by the Secretary of the Union and a copy of the application was forwarded to the Labour Officer and to the Deputy Commissioner for information Apparently the Union was treating the matter as of sufficient importance but they did not think it necessary to put in the application in time on behalf of the workmen themselves even though the application might have been made through the Union That the appellants were not to blame for the attitude they took in the matter of the procedure for application for leave to particular workmen becomes clear on a reference to the terms of the Agreement dated February 23 1953 between the Syndicate and their workmen represented by the Dhubri Transhipment Labour Union at p 75 Part 1 of the record The Demand 5f was agreed to in these terms All leave applications be submitted by a representative of the Union on Tuesday or Friday in a week before the Management and the decision be communicated to the Union the next day of submission of the application On the other band in respect of leave the terms of the Agreement reached between the Syndicate and the 22 Dhubri Local Ghat Transhipment Labour Union on March 13 1953 are as follows It is agreed that the workers will submit leave applications to the management who will communic ate their decision to the workers direct within three days of receipt of the applications and a copy thereof will he sent to the Union for information It is clear thereforethat the conciliation proceedings stopped abruptly not because the Management was to blame for not granting leave to the five chosen representatives of the workmen but because B Chakravarty insisted that the leave application would not be made by individual workmen but only by the Union Even that application was made too late and in the teeth of the terms of the Agreement quoted above If the Secretary had not taken this unreasonable attitude and if he had been anxious that the conciliation proceedings should continue the easiest thing for him to have done was to get those five workmen to make their applications for leave which the Management was prepared to grant even at that late hour In our opinion the conciliation proceedings failed because the Secretary took an unreasonable attitude The Tribunal therefore was in error in throwing the blame for the failure of the conciliation proceedings on the Management The third ground of attack on the bona fides of the appellants was said to have been the attempt of the Management to interfere in the internal affairs of the Unions The following remarks of the Tribunal are another instance of its intemperate language with which the Award bristles Curiously enough it appears that the Company s Joint Agent at Dhubri dabbled in politics and meddled in internal administration of the Unions He propped up another Union and backed it up to stand as a rival Union On an examination of the record of the case it appears that the Indian National Trade Unions Congress to which the Unions were affiliated was not in favour of the strike That would be an indication of the fact that the relation between the employers 23 and the employees had not come to the breaking point and that the Congress naturally expected that conditions of service of the employees could be improved more effectively by peaceful negotiations than by taking recourse to a strike in respect of a service which had been declared by the Government to be a public utility service But the Secretary of one of the Unions B Chakravarty aforesaid appears to have brought matters to a head without giving the Conciliation Officer a reasonable chance as already indicated of bringing about a reconciliation between the view points of the employers and the employees The appellants had only recently taken over the workmen under their direct employment and the Tripartite Conference between them the representatives of the employees and the Government was yet to settle all the outstanding Questions between the parties Hence the fact that two rival Unions had come into existence could not be laid at the door of the appellants as an act of unfair labour practice The Tribunal was not therefore in our opinion justified in holding that the Management had either meddled in the internal administration of the Unions or dabbled in politics and had thus been guilty of unfair labour practice The Tribunal has been rather generous to the workmen without being just to the appellants This is also shown by the fact that after having held the strike to be illegal the Tribunal considered the legality of the lock out declared by the appellants on August 11 1955 in respect of one Ghat and on August 13 1955 in respect of the other Ghat In this connection the conclusion of the Tribunal may best be stated in its own words to demonstrate its attitude to the appellants In this case the Company used the weapon of lock out just to intimidate and put pressure on the employees to withdraw the demands The lock out is also prohibited under Section 222d of the Act Therefore both lock out and strike are illegal The Company had no justification whatsoever to declare a lock out 24 Apparently the Tribunal ignored the provisions of section 243 of the Act The lock out was clearly not illegal It is another question whether there was a justification for the appellants to continue the lockout even after the strike had been called off on August 19 The Joint Agent of the appellants by his letter dated August 17 1955 to the two Unions had intimated to them that in view of the illegal strikes lockout had been declared at the local Ghat on August 11 and at the Transhipment Ghat on August 13 and that the lock out will remain in force until disciplinary action can be instituted against those of our employees chiefly responsible for leading and continuing the illegal strikes The continuance of the lock out after August 19 may be unjustified but that does not make the lock out itself illegal It was in pursuance of that order of the Joint Agent that proceedings were taken against the socalled leading strikers leading upto their dismissal Those orders of dismissal to be presently discussed are the main points in controversy between the parties in this Court But before those orders of dismissal were passed the Management issued a notice on August 26 1955 lifting the lock out with effect from the next day It required the employees to report for duty to the Joint Agent personally at his office between the hours of 9 and 10 am It also contained the threat that any employee who did not report for duty on August 30 will in the absence of a letter of explanation and good reason be treated as having voluntarily terminated his services R N Biswas was then appointed the Inquiry Officer by the appellants and he held the inquiry in batches the first batch consisting of 26 workmen the second of 114 the third of 68 the fourth of 17 and the fifth of 7 These inquiries related to different incidents in connection with the strikes Biswas appears from the record as placed before us to have recorded the statements of Milner Rayfield C R Das and section P Tewari officers of the appellants in proof of the allegations against the strikers We do not think any useful purpose will be served by 25 going into the details of the evidence given by those witnesses because we have come to the conclusion that those several inquiries suffer from the fundamental defect that there is no satisfactory evidence on the record that charges giving the details of the acts of violence or obstruction against the strikers were served upon the workmen against whom those inquiries had been instituted As a result of each one of these inquiries the Inquiry Officer R N Biswas reported that the charge against each one of the workmen had been proved to his satisfaction But before the inquiry was held the Joint Agent on September 9 1955 informed the thirty seven workmen who had been convicted as aforesaid of the criminal charge under section 188 of the Indian Penal Code that their services were terminated from that date and that they were to call at his office by the 15th of the month to collect their dues and to vacate the quarters of the appellants As regards the remaining two hundred and twenty three workmen orders were passed on September 16 to the effect that as the departmental inquiry made against them had resulted in the charges against them being proved they were dismissed from the service of the appellants with effect from August 29 1955 They were called upon to call at the Labour Office on September 18 to collect their dues and to vacate the quarters of the appellants Realising that as the Government had appointed a Board of Conciliation on the 13th instant to resolve the dispute between the parties the orders aforesaid of dismissal or termination of services of the thirty seven workmen and of the two hundred and twenty three workmen as aforesaid would be illegal the Joint Agent informed the workmen on September 20 1955 that those orders would be held in abeyance pending permission from the Board to dismiss them and they would be deemed to be under suspension It may be recalled that the Government had constituted a Board of Conciliation consisting of three persons viz H P Duara the Labour Commissioner of Assam as the Chairman and D N Sarma and P J Rayfield as members representing the interests of the employees and the employers 4 26 respectively The Board of Conciliation considered the question of the dismissal or suspension of those thirty seven plus 223 workmen along with the application of the Management asking permission to dismiss 223 workmen for their having taken part in the illegal strike and forcibly preventing willing workmen from attending work Two of the three persons constituting the Board namely the Chairman and D N Sarma came to the conclusion that as regards the dismissal of the thirty seven workmen the order of dismissal was illegal as in their opinion the conciliation proceedings had commenced from August 26 and not from September 13 On the question of suspension of 223 workmen the Board was of the opinion that suspension without pay pending the permission of the Board to dismiss the workmen was no punishment and therefore no action was called for As regards the permission sought by the Management to dismiss the suspended two hundred and twenty three workmen again by a majority those two members were of the opinion that although the strike was prima facie illegal it was not unjustified and therefore the permission sought could not be given Rayfield the other member of the Board as already stated submitted his Minute of dissent He pointed out that the conciliation proceedings commenced on September 13 and therefore the discharge of the thirty seven workmen was not in contravention of section 33 of the Act He further held that the Board had no power to withhold the permission asked for to dismiss 223 workmen on the ground that they had been found guilty on a departmental inquiry of having participated in an illegal strike and of having forcibly prevented workmen from attending work He added that the grant of the permission would not debar the Union from raising an industrial dispute in that matter It may be added that the Board unanimously agreed that dismissal is an appropriate punishment for participation in an illegal and unjustified strike The Tribunal also took the same view of the legal position when it observed If the strike is not justified and at the same time it contravenes the provisions of 27 Section 22 of the Act ordinarily the workmen participating in it are not entitled to any relief As a matter of fact the Tribunal has closely followed the findings of the majority of the Board of Conciliation But as we have already pointed out there can be no question of an illegal strike being justified We have further held in agreement with the Tribunal that the strike was illegal and that it was not even justified in disagreement with the Tribunal assuming that such a situation could be envisaged in accordance with the provisions of the Act We have therefore to determine the question what punishment if any should be meted out to those workmen who took part in the illegal strike To determine the question of punishment a clear distinction has to be made between those workmen who not only joined in such a strike but also took part in obstructing the loyal workmen from carrying on their work or took part in violent demonstrations or acted in defiance of law and order on the one hand and those workmen who were more or less silent participators in such a strike on the other hand It is not in the interest of the Industry that there should be a wholesale dismissal of all the workmen who merely participated in such a strike It is certainly not in the interest of the workmen themselves An Industrial Tribunal therefore has to consider the question of punishment keeping in view the over riding consideration of the full and efficient working of the Industry as a whole The punishment of dismissal or termination of services has therefore to be imposed on such workmen as had not only participated in the illegal strike but had fomented it and had been guilty of violence or doing acts detrimental to the maintenance of law and order in the locality where work had to be carried on While dealing with this part of the case we are assuming without deciding that it is open to the Management to dismiss a workman who has taken part in an illegal strike There was a great deal of argument at the Bar on the question whether the Management in this case was entitled to dismiss the workmen who had taken part in the illegal strike 28 A good deal of argument was devoted to the further question whether there were certified standing orders as between the Syndicate and the workmen or later as between the appellants and the workmen and Whether even apart from such standing orders it was open to the employers to deal so drastically with their employees who had taken part in the illegal strike In our opinion it is not necessary to decide those general questions in view of our conclusion to be presently stated on the question of the regularity of the inquiry held in different batches as indicated above by Biswas the officer appointed by the appellants to hold the departmental inquiry In order to find out which of the workmen who had participated in the illegal strike belong to one of the two categories of strikers who may for the sake of convenience be classified as 1 peaceful strikers and 2 violent strikers we have to enquire into the part played by them That can only be done if a regular inquiry has been held after furnishing a charge sheet to each one of the workmen sought to be dealt with for his participation in the strike Both the types of workmen may have been equally guilty of participation in the illegal strike but it is manifest that both are not liable to the same kind of punishment We havetherefore to look into the nature of the inquiry alleged to have been held by or on behalf of the appellants On the one hand the workmen took the extreme position that no inquiry had at all been held and on the other hand the employers took up the position that the Inquiring Officer had held a regular inquiry after furnishing a charge sheet to each one of the workmen against whom the inquiry was held That there was an inquiry held by Biswas admits of no doubt The proceedings before him and the evidence recorded by him have been placed on record But the most serious question that we have to determine is whether a charge sheet giving notice to each workman concerned as to what the gravamen of the charge against him was had or had not been furnished to him On this part of the case the record is admittedly incomplete The appellants relied upon the following observations 29 of the Tribunal in support of their case that the inquiry had been entirely regular The charges are for fomenting and participating in an illegal strike from the 11th August 1955 and forcibly preventing other labourers from working on the same day On the other hand reliance was placed on behalf of the workmen on the following passage in the Award of the Tribunal In this case the Company has not framed any specific charge against those 260 workers alleging that they indulged in violence or acts subversive of discipline The finding of the Tribunal is that no such individual charge sheet was delivered to the workmen This conclusion of the Tribunal was assailed on behalf of the appellants on the ground that as this point had not been specifically made in the written statement of the workmen the appellants did not put in those charge sheets in evidence and had contented themselves with only producing the record of proceedings before the Inquiring Officer As we naturally attached a great deal of importance to this question we were inclined to give another opportunity to the appellants to remove the lacunas in the evidence bearing upon that question even at this late stage More than once during the course of the arguments by the learned Attorney General we suggested that he might put in those charge sheets if they were in existence as additional evidence in this Court so that we might be satisfied that there had been a regular inquiry according to the requirements of natural justice After making the necessary investigation the learned Attorney General informed us on the last day of the arguments that no such documents were in existence It was alleged that the entire bundle of documents containing those individual charges had been lost and that therefore there were no means of satisfying this Court by documentary evidence that there were in fact such individual charge sheets delivered to the workmen concerned We find therefore no good reasons for displacing the finding of the 30 Tribunal that there were no such individual chargesin spite of apparently conflicting observations made by it as quoted above The position therefore is that the strikes were illegal that there was no question of those strikes being justified and that assuming that the strikers were liable to be punished the degree and kind of punishment had to be modulated according to the gravity of their guilt Hence it is necessary to distinguish between the two categories of strikers The Tribunal attempted to make such a distinction by directing that the 52 workmen who had been convicted under section 143 read with section 188 of the Indian Penal Code were not entitled to reinstatement and the remaining 208 workmen were so entitled Dealing with the case of the thirty seven workmen who had been convicted only under section 188 of the Indian Penal Code for transgression of the prohibitory orders under section 144 of the Code of Criminal Procedure the Tribunal put those workmen on the same footing as the rest of the workmen But in our opinion those 37 workmen do not stand on the same footing as the others Those 37 workmen who were convicted under section 188 of the Indian Penal Code had been found to have violated the prohibitory orders passed by the public authorities to keep the public peace Those convictions were based upon evidence adduced before the Magistrate showing that the workmen had proceeded to the steamer flat through the jetty in defiance of the orders promulgated under section 144 We have examined the record and we find that there is sufficient indication that those 37 workmen were among the violent strikers and could not be placed in the category of peaceful strikers Hence it is clear that those workmen not only joined the illegal strike by abstaining from their assigned duty but also violated regularly promulgated orders for maintaining peace and order Such personsapparentlycannot be said to be peaceful strikers and cannottherefore be dealt with as lightly as the Tribunal has done The Tribunal in our opinion is wrong in taking the view that the appellants had nothing to do with the violation of the order under section 144 of the 31 Code of Criminal Procedure promulgated by the District Magistrate with a view to maintaining peace and order at the site of work These 37 workmen therefore should not have been ordered to be reinstated As regards the remaining workmen the question is whether the Tribunal was entirely correct in ordering their reinstatement with full back wages and allowances on and from August 20 1955 till reinstatement This would amount to wholly condoning the illegal act of the strikers On the findings arrived at before us the workmen were guilty of having participated in an illegal strike for which they were liable to be dealt with by their employers It is also clear that the inquiry held by the appellants was not wholly regular as individual charge sheets had not been delivered to the workmen proceeded against When the blame attaches to both the parties we think that they should divide the loss half and half between them We therefore direct that those workmen whose reinstatement by the Tribunal is upheld by us should be entitled only to half of their wages during the period between the date of the cessation of the illegal strike ie from August 20 1955 and the date the Award became enforceable After that date they will be entitled to their full wages on reinstatement In this connection it has also got to be borne in mind that those workmen as observed in the judgments of the criminal courts which inflicted nominal fines on them on their conviction were day labourers who earned their livelihoods by day to day labour It is only natural that during all these years that the workmen have not been employed by the appellants the workmen should have been earning their living by doing day to day labour It must therefore be assumed that they were working for their living and were not wholly unemployed Therefore the burden of the back wages for the long period that has elapsed between the date of the end of the strike and the date of the Award ordering their reinstatement should be divided half and half between the parties The appeal is therefore allowed in part as indicated above that is to say 1 the order of reinstatement 32 in respect of Jahangir Sardar and Keayamat Hussainis set aside 2 similarly the order of reinstatement in respect of the thirty seven workmen who had been convicted under section 188 of the Indian Penal Code is also Set aside and 3 the order for payment of full back wages etc is modified by reducing those amounts by half for the period aforesaid As success between the parties has been divided they are directed to bear their own costs in this Court Appeal allowed in part

The employees of the appellant Bank commenced pen down strikes which were followed by a general strike pending arbitration of an industrial dispute between them The Government of India intervened and as the result of an agreement that followed the Bank reinstated all the employees except 150 against whom it had positive objections and the Government referred their cases under section 10 of the Industrial Disputes Act 1047 to the Industrial Tribunal for adjudication The two issues before the Industrial Tribunal were whether the 150 employees had been wrongly dismissed and what wages and allowances would the 807 employees be entitled to on reinstatement The case of the employees was that the Bank wanted to penalise the active trade union workers by the said dismissals while the Bank maintained that the employees were guilty of participation in illegal strikes intended to paralyse its business and scare away its customers The Industrial Tribunal did not hear evidence and by its final award held that the strikes being illegal the Bank was on that ground alone justified in dismissing the employees Even so it directed the Bank to make certain payments to the employees on compassionate grounds The Bank as well as the employees appealed The Labour Appellate Tribunal held that even though the strikes were illegal under section 23b read with section 241 of the the Bank had by entering into the agreement with the Government of India waived its right to take penal action against the employees for joining the illegal strikes and that therefore an enquiry should be held on additional evidence to decide the disputes on merits Against this interlocutory order the Bank appealed to this Court and it was held by this Court that while the strikes were no doubt illegal under section 23b of the Act the orders of dismissal passed by the Bank were no less so under section 33 of the Act and it dismissed the appeal The Appellate Tribunal thereafter heard the cases on merits directed the reinstatement of 136 of the said employees but refused to reinstate the rest whom it found guilty of issuing posters and circulars subversive of the credit of the Bank Both the parties appealed to this Court Preliminary objections were raised on behalf of the said employees that 1 in view of the decision of this Court dismissing the Bank s appeal against the said interlocutory order the subsequent inquiry by the Tribunal and the orders of dismissal must be held to be void and 2 no charges having been admittedly framed nor any proper enquiry held by the Bank against the employees the orders of dismissal were wholly invalid It was urged inter alia on behalf of the Bank in the appeals that participation in a pen down strike by itself amounted to misconduct sufficient to disentitle an employee to reinstatement and that the entire body of strikers being collectively responsible for the publication of the subversive documents in question the dismissed employees could by no means escape liability Held per curiam that the preliminary objections must be negatived and the decision of the Appellate Tribunal affirmed with this modification that in view of its inconsistent findings the appeal of one of the employees must be allowed Per Sinha and Gajendragadkar JJ The purpose the Legislature had in view in enacting section 33 of the was to maintain the status quo by placing a ban on any action by the employer pending adjudication But the jurisdiction conferred on the Industrial Tribunal by section 33 of the Act was a limited one Where a proper enquiry had been held and no victimisation or unfair labour practice had been 808 resorted to the Tribunal in granting permission had only to satisfy itself that there was a Prima facie case against the employee and not to consider the propriety or adequacy of the proposed action But to such permission when granted the Tribunal could attach no conditions it can either grant or refuse it The effect of such permission was only to remove the ban imposed by section 33 of the Act It could neither validate a dismissal nor prevent it from being challenged in an industrial dispute but in such a dispute when raised the employer could justify its action only on such grounds as were specified in the original charge sheet and no others There was substantial difference between non compliance with section 33 of the Act and that with article 3112 of the Constitu tion Compliance with section 33 only avoided the penalty under section 311 of the Act while compliance with article 3112 of the Constitution made the order of dismissal final Atherton West Co Ltd V Suti Mills Mazdoor Union The Automobile Products of India Ltd vs Rukmaji Bala Lakshmi Devi Sugar Mills Ltd vs Pt Ram Sarup Indian lron and Steel Co Ltd vs Their Workmen and McKenzie Co Ltd vs Its Workmen referred to It was not therefore correct to contend that non compliance with section 33 of the Act could render the orders of dismissal wholly void or take away the jurisdiction of the Tribunal to hold the enquiry Nor could the failure to hold a proper enquiry have that effect Under section 33A of the Act as construed by this Court the jurisdiction of the Tribunal was not limited to an enquiry as to the contravention of section 33 of the Act Even if such contravention was proved the employer could still justify the impugned dismissal on merits and there was no difference in this regard between a reference under section 10 of the Act and a dispute raised under section 33A of the Act The Automobile Products of India Ltd vs Rukmaji Bala and Equitable Coal CoLtd vs Algu Singh AIR 1958 S C 761 referred to Although there can be no doubt that in proper cases the Industrial Tribunal has the power to direct reinstatement in disputes arising out of dismissal of employees it is not possible to Jay down any hard and fast rule to be applied to such cases In coming to its decision the Industrial Tribunal has to reconcile the conflicting claims of the employer and the employee the latter s right to protection against wrongful dismissal and in such a case the normal rule is reinstatement and the interest and safety of the industry itself Its approach to such a problem cannot therefore be legalistic or doctrinaire or as is permissible 809 in a civil court deciding the validity of dismissals under section 240 of the Government of India Act 1935 or article 3112 of the Constitution Western India Automobile Association vs Industrial Tribunal Bombay and Buckingham Carnatic Mills Ltd vs Their Workmen referred to If no enquiry is held by the employer before it passes an order of dismissal the propriety of such dismissal can be adjudged by the Tribunal on evidence and no employer can be allowed to object to it on the ground that it interferes with the exercise of its managerial function The Madras Electric Tramways 1904 Ltd Madras vs Their Workers distinguished and held inapplicable The propriety of reinstatement in a case of wrongful or illegal dismissal is normally a question of fact and where the Industrial Tribunal on a proper consideration of the relevant factors refuses to pass such an order this Court would be reluctant in absence of any general or substantial question of law to interfere under article 136 of the Constitution A pen down strike falls within the definition of a strike contained in section 2q of the Industrial Disputes Art 1947 and is not Per se illegal Even if it might involve an element of civil trespass as in the present case that cannot disentitle an employee to reinstatement Ms Burn Co Ltd vs Their Workmen AIR 1959 SC 529 referred to It is not safe to extend principles of American decisions to such a strike without a careful scrutiny of the relevant provisions of the American Statute and the facts on which the said decisions are based National Labour Relations Board vs Fansteel Metallurgical Corporation 306 US 238 considered and held inapplicable William Truax vs Michael Corrigan referred to Since in the instant case the peaceful and non violent conduct of the strikers as found by the Appellate Tribunal could not amount to criminal trespass within the meaning of section 441 of the Indian Penal Code mere participation in the pen down strike did not disentitle them to reinstatement T H Bird vs King emperor 1934 LR XIII Pat 268 held inapplicable The mere fact that the employer had engaged new hands during the strike was not sufficient to defeat the claim to reinstatement of such employees as were subsequently found to have been wrongfully dismissed National Transport and General Co Ltd vs The Workmen CA NO 312 of 1956 decided on January 22 1957 referred to 810 But where as in the instant case the Appellate Tribunal took a common sense view of the matter of evidence and held certain office bearers and leaders of the union liable for subversive acts and refused to extend such liability to the entire body of strikers on theoretical and academic grounds no principles of natural justice could be said to have been contravened by it

ON Criminal Appeal No 116 of 1957 Appeal by special leave from the judgment and order dated the February 10 1955 of the Calcutta High Court in Criminal Revision No 930 of 1954 arising out of the judgment and order dated July 13 1954 of the Sub Divisional Magistrate Darjeeling in G R case No 108 of 1950 Sukumar Ghose for the appellant N R Khanna and T M Sen for the respondent October 27 The judgment of Jafer Imam J L Kapur and K N Wanchoo was delivered by Kapur J Sarkar J delivered a separate judgment KAPUR J This appeal by special leave raises a question of the application of section 403 of the Criminal 60 Procedure Code The circumstances in which this question arises are these A complaint was filed against one section K Bose and the appellant under sections 120 B 409 Indian Penal Code and section 52 of the Prevention of Corruption Act 2 of 1947 in the Court of the Sub Divisional Magistrate Darjeeling Against the appellant the complaint was instituted on March 2 1950 As the West Bengal Criminal Law Amendment Special Courts Act West Bengal 21 of 1949 hereinafter referred to as the Act came into force on June 23 1949 the case was allotted to the Special Judge at Alipore Mr SC Dutt Gupta who on July 11 1951 found section K Bose guilty but acquitted the appellant section K Bose took an appeal to the High Court at Calcutta In another case J K Gupta vs The State of West Bengal 1 a Special Bench of the Calcutta High Court held that section 41 of the Act was ultra vires Following this judgment a Division Bench of that Court Trevor Harries CJ and section R Das Gupta J passed the following order in section K Bose s appeal The appeal must therefore be allowed The conviction and sentence are set aside and the appellant must be regarded as an under trial prisoner awaiting retrial if Government so decides He will continue on the same bail until such retrial On April 9 1952 the West Bengal Criminal Law Amendment Special Courts Amending Ordinance 1952 West Bengal Ord 8 of 1952 came into force and was replaced by West Bengal Act XII of 1952 on July 30 1952 By a Notification No 2047J Mr J C Lodh was appointed as the Special Judge at Alipore and on May 26 1952 a petition of complaint was filed against both the appellant and SK Bose It was stated therein that the High Court had held that the allotment of the case to the previous Special Court and all proceedings thereafter were invalid and all such cases have been directed to be retried according to law and prayed for cognizance to be taken of the offences which the appellant and section K Bose were accused of It may be pointed out that as far as the 1 61 appellant was concerned the High Court had given no such direction The Special Judge then summoned the appellant who on June 19 1952 pleaded the bar of section 403 Criminal Procedure Code basing it on his acquittal by the Special Judge Mr section C Dutt Gupta The Special Judge overruled this plea on the ground of want of jurisdiction of the previous Special Judge to try the offences because section 41 of the Act had been declared ultra vires by the High Court Against this order the appellant moved the High Court under Articles 226 227 and under section 439 of the Criminal Procedure Code for quashing the proceedings before the Special Judge On August 22 1952 Notification No 2047J was superseded by Notification No 4673J and Mr J C Lodh ceased to have jurisdiction and he passed an order on August 26 that as the Court had no jurisdiction to continue the trial the case be filed and the accused be held underwater prisoner pending a retrial according to law The appellant thereupon amended his petition in the High Court On March 19 1953 the High Court Chunder J dismissed the application and discharged the rule It held that as the Act creating the Special Judge s Court has been declared ultra vires the decision of that Court had no binding force and that the High Court did not discharge the accused persons altogether but directed that they were to be held as undertrial prisoners leaving it to the Government to decide what further steps the Government would take Here again there was an error because whatever might be the legal consequence of the order of the High Court in SK Bose s appeal there was no specific order as to the appellant The West Bengal Criminal Law Amendment Special Courts Amending Act West Bengal Act 22 of 1952 having come into force by a notification dated December 22 1952 the case of the appellant and section K Bose was allotted to the Special Judge at Darjeeling and a fresh complaint was filed on March 27 1953 in that Court and it issued process against both the accused The appellant again took objection to the restarting 62 of the proceedings section K Bose the other accusedtook a revision to the High Court Criminal Revision No 578 of 1953 On April 8 1954 the High Court Das Gupta Debabrata Mookerjee JJ quashed the proceedings in the High Court of the Special Judge at Darjeeling on the ground that the Amendment Act XXII of 1952 was inapplicable to the facts of the case The High Court held The position in law therefore was that the proceedings against the petitioner were pending in appeal before this Court on the 9th April 1952 the appeal was disposed of on that date and a retrial was ordered There has not therefore been a termination of those proceedings If consequently the Special Courts Act does not apply to those proceedings and those proceedings cannot be tried by a Special Court that position cannot be escaped by filing a fresh petition of complaint The filing of fresh petition of complaint will not institute fresh proceedings distinct from the proceedings that were pending in appeal So long as these proceedings have not been disposed of in accordance with law fresh proceedings cannot be instituted against the petitioner The result in my opinion is that the Special Court Judge Darjeeling has no jurisdiction to try the case instituted before him on a complaint on the 27th of March 1953 I would accordingly quash the proceedings in his Court and order that the proceedings now pending against the petitioner in the Court of the Sub Divisional Magistrate Darjeeling should now be disposed of in accordance with law On May 31 1954 the Sub Divisional Magistrate Darjeeling issued process against the appellant to appear on June 21 1954 and on the same day the case was transferred to Mr section P Kar Magistrate The appellant then applied to the Sub Divisional Magistrate for the quashing of proceedings on the ground that he had been acquitted by a Court of competent jurisdiction because the Supreme Court in Kedar Nath Bajoria vs The State of West Bengal 1 had declared s41 of the Act to be intra vires of the Constitution The 1 63 learned Magistrate dismissed this petition oil the ground that the order of the High Court dated April 8 1954 which directed the trial of the appellant was passed after the judgment of the Supreme Court and that he was bound by the order of the High Court Against this order the appellant took a revision to the High Court and the matter was heard by Guha Roy and section K Sen JJ Guha Roy J held that the order of Chunder J in Criminal Revision No 965 of 1952 operated as a bar that the proceedings before the Sub Divisional Magistrate at Darjeeling were really a con tinuation of the proceedings before Mr J C Lodh Special Judge and that the appellant was bound by the decision of Chunder J section K Sen J agreed and held that the order of acquittal was by a Court which was not of competent jurisdiction and therefore it the acquital was no longer in existence when Chunder J passed the order on March 19 1953 and the petitioner could not get the benefit under section 403 of the Criminal Precedure Code or the subsequent change in the law introduced by the Supreme Court decision in Kedar Nath Bajoria vs The State of West Bengal1 The result was that the appellant s prayer for quashing the pro ceedings was rejected and the appellant has come in appeal by special leave against this decision of the High Court Under section 4031 of the Code of Criminal Procedure a person once tried and acquitted for an offence is not liable to be tried again for the same offence or on the same facts It is this provision of the Code which the appellant relies on in support of his appeal and submits that as he was acquitted by a court of competent jurisdiction and which acquittal remains operative he cannot be tried again for the same offence Under the decision of this Court in Kedar Nath Bajoria vs The State of West Bengal 1 section 4 1 of the Act is intra vires and the court of the Special Judge Alipore Mr section C Dutt Gupta who passed the original order of acquittal of the appellant was a court of competent jurisdiction and if there is no other impediment in the way of the appellant the previous acquittal 1 64 must operate as a complete bar to his being tried again on the some facts and for the same offences But it was contended on behalf of the State that in his order Chunder J had held that the appellant could not plead the bar of section 403 as the order of acquittal by the Special Judge Mr section C Dutt Gupta was not by a court of competent jurisdiction and as the order had become final whether it was right or wrong it barred the raising of that question ie applicability of section 403 even in this Court It therefore becomes necessary to determine the effect of the order of Chunder J The Special Judge Mr section C Dutt Gupta acquitted the appellant and convicted the co accused section K Bose who alone took an appeal to the High Court That Court held section 41 of the Act to be ultra vires and set aside his conviction and left it to Government to decide as to whether he should again be tried or not By filing the proceedings again the Government decided that the appellant and section K Bose should be retried No argument was raised before us as to the effect of that order on the appellant s case and the argument has proceeded on the basis that on that view of the law the acquittal of the appellant was by a court without jurisdiction and therefore even if no appeal was taken as against the appellant the order of acquittal would be no more than an order of dischargeYusofalli Mulla Noorbhoy vs The King 3 But the appellant contended that in view of the decision of this Court in Kedar Nath Bajoria vs The State of West Bengal 2 where the Act was declared intra vires and section 41 of the Act a good provision the decision of the High Court to the contrary could no longer impede the efficacy of his plea and he was entitled to plead section 403 Criminal Procedure Code as a bar to his being tried on the same facts and for the offences of which he was acquitted It was also contended that the verdict of acquittal was given by a court of competent jurisdiction and that verdict has never been reversed and the acquittal is still in force It is not necessary in this appeal to decide whether it was open to the High Court to take a different view 1 1949 76 IA 158 168 169 2 65 of the effect of the order of acquittal passed by Mr section C Dutt Gupta because of the pronouncement by this Court in Kedar Nath Bajoria s case 1 What we have to decide in this appeal is whether the order of Chunder J has the effect of debarring the appellant from the benefit of obtaining a review by this Court of that decision It is also not necessary to discuss the scope of res judicata and the extent of its application to criminal proceedings and its limitation to decisions of courts of competent jurisdiction Except where the statute so requires it is not imperative upon a party to appeal against every error defect or irregularity in any order by which he may conceive himself aggrieved under the penalty if he does not So do of forfeiting for ever the benefit of consideration by this Court Nothing would be more detrimental to the expeditious administration of justice than the establishment of a rule which would impose upon a party the necessity of appealing against every such order It was so held in Moheshur Singh vs The Bengal Government 2 where a party had not appealed from the order of Sudan Commissioner granting a review of judgment In our opinion it would make no difference as far as this Court is concerned whether an intermediate order complained of is passed by the trial court and is not taken to the High Court in revision or it is taken in revision to the High Court and is there confirmed We think it unnecessary in this case to express any opinion as to the effect of that order qua the revision in the High Court itself but when the matter properly comes to this Court in appeal in such circumstances as this case it is open to this Court unless there is any statute which provides differently to review the order passed by the High Court as much as it would have been if the original order passed by the trial court had not been taken to the High Court in revision In civil cases this principle was accepted by the Privy Council See Alexander John Forbes vs Ameeroonissa Begum 3 where an order of remand had not been appealed 1 2 1859 7 MIA 283 302 3 1865 10 MIA 340 352 9 66 against Sheonath vs Ram Nath 1 where the order was a step in the procedure that leads to a final decree Shah Mukhun Lal vs Baboo Sree Kishen Singh 2 where the question as to interest was decided in an interlocutory decree not appealed from These cases are decisions on general principles and are not based on any particular statute or regulation peculiar to procedure in civil cases We do not see why the principle of these cases should in the absence of any law to the contrary not be equally applicable to matters of a criminal nature Chunder J in his judgment in Criminal Revision No 965 of 1952 dated March 19 1953 said There must be a judicium before there can be res judicata If a judicium created by an Act is not a judicium at all because the Act is ultra vires there can be no res decided by it Because there is no judicium there can be no decision which will have a binding force It only means this that for an order of acquittal to be binding it must be pronounced by a Court of competent jurisdiction In the judgment of the High Court in Criminal Revision No 930 of 1954 now under appeal section K Sen J was of the opinion that as the acquittal was not by a Court of competent jurisdiction the Government regarded it as set aside and it was no longer in force when Chunder J passed his order on March 19 1953 and consequently the petitioner Dow the appellant could no longer get the benefit thereof under section 403 Cr P C on a subsequent change in the law introduced by the Supreme Court decision in Kedar Nath Bajoria vs The State of West Bengal 3 Following Kedar Nath Bajoria s case 3 we are of the opinion that section 41 of the Act was not ultra vires and the judgment of the Calcutta High Court in JK Gupta vs State of West Bengal 4 was erroneous and the acquittal by the Special Judge Mr section C Dutt Gupta was an order made by a court of competent jurisdiction as such it was binding unless set aside in appeal and it was never set aside in appeal The observations 1 1865 10 MIA 413 2 1868 12 MIA 157 3 4 67 of the Privy Council in Yusofalli Mulla Noorbhoy vs The King Emperor 1 If the orders of acquittal were passed by a court of competent jurisdiction though wrongly they would be binding unless set aside in appeal would be applicable to the case of the appellant If the trial court was not a court of competent jurisdiction the acquittal would be no more than a discharge but if it was by a court of competent jurisdiction it is binding unless lawfully set aside The plea of the appellant effectively falls within section 403 Criminal Procedure Code We have held that the trial in the court of Mr section C Dutt Gupta being a trial before a court competent to pass a valid order the prosecution is bound to accept the correctness of the verdict of acquittal and is precluded from challenging it As was said by Lord Mcdermott in Sambasivam vs Public Prosecutor Federation of Malaya 2 in regard to a verdict pronounced by a competent court and after a lawful trial the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication This passage was quoted with approval by this Court in Pritam Singh vs The State of Punjab3 In our opinion the order of Chunder J was based on an erroneous view of the vires of section 41 of the Act The first trial of the appellant was before a court of competent jurisdiction and the verdict of acquittal was not a nullity its efficacy was not impaired by any binding order of the High Court and at this stage when the matter is properly before this court and the proceedings are a continuation of the proceedings before Mr J C Lodh it is not precluded from rectifying any error or defect in the order of the High Court and giving effect to the plea set up under section 403 The trial before Mr section C Dutt Gupta being a lawful one which resulted in acquittal and which has never been set aside another trial would place the appellant in 1 1949 LR 76 IA 158 168 169 2 1950 A C 458 479 3 AIR 1956 SC 415420 68 jeopardy a second time which would contravene section 403 of the Criminal Procedure Code We therefore allow this appeal set aside the order of the Calcutta High Court directing the complaint to be proceeded within the court of the Sub Divisional Magistrate and the proceedings against the appellant are quashed SARKARJ In my view this appeal fails On March 2 1950 the appellant and one Bose were prosecuted for certain offenses under the West Bengal Criminal Law Amendment Special Courts Act 1949 The case was heard by Mr Dutta Gupta who on July 11 1951 acquitted the appellant but convicted Bose Bose appealed to the High Court at Calcutta The High Court following its own earlier decision in J K Gupta Ors vs The State of West Bengal 1 found that the Act was invalid as it offended article 14 of the Constitution The High Court thereupon held that Bose s conviction under the Act could not be sustained and set it aside This judgment was passed on April 9 1952 On the same day the Government of West Bengal passed an Ordinance amending the Act which Ordinance was later replaced by another Act Under the Act as amended fresh proceedings in respect of the same offenses were started both against the appellant and Bose on May 26 1952 in the Court of Mr Lodh who was empowered by the Government under the Act as amended to deal with it On June 19 1952 the appellant made an application to Mr Lodh for an order that the prosecution against him be quashed as he had earlier been acquitted of the same offences by Mr Dutta Gupta This application was rejected by Mr Lodh On September 2 1952 the appellant moved the High Court at Calcutta by revision petition No 965 of 1952 against the order of Mr Lodh This petition was disposed of by Chunder J by order dated March 19 1953 whereby the learned Judge held that the proceedings could not be quashed as in view of the judgment of the High Court dated 1 69 April 9 1952 it must be held that Mr Dutta Gupta was not a court of competent jurisdiction and the acquittal by him was of no effect Before the revision petition No 965 of 1952 was filed the Government had withdrawn the case against the appellant and Bose from Mr Lodh It is said that the revision petition was filed in ignorance of such withdrawal After withdrawing the case from Mr Lodh the Government by Notifications dated December 22 1952 and March 24 1953 assigned it for trial under the Act as amended to a court at Darjeeling A fresh petition of complaint was thereupon filed against the appellant and Bose in that Court Bose then moved the High Court at Calcutta by a revision petition for quashing the proceedings on the ground that the Act as amended did not apply to him On April 8 1954 the High Court allowed Bose s application and quashed the proceedings holding that the amended Act did not apply to any proceeding pending on the date of the commencement of the Ordinance namely April 9 1952 in any court other than a court constituted under the Act and that on that date the proceeding against Bose was pending in the High Court which was not a court under the Act While the revision petition mentioned in the preceding paragraph was pending in the High Court this Court on May 22 1953 delivered judgment in Kedar Nath Bajoria vs State of West Bengal 1 whereby it held that the judgment of the High Court at Calcutta in J K Gupta vs The State of West Bengal2 was wrong and that the Act was constitutionally valid After the decision of the High Court of April 8 1954 proceedings againt the appellant and Bose were started afresh in the Court of the Sub Divisional Magistrate Darjeeling under the provisions of the Code of Criminal Procedure On June 21 1954 the appellant applied to the Sub Divisional Magistrate Darjeeling for an order quashing the proceeding against him as in view of the judgment of this Court in Kedar Nath Bajoria s case1 to which reference has 1 2 70 been earlier made it had to be held that his acquittal by Mr Dutta Gupta was an acquittal by a court of competent jurisdiction and that therefore the appellant could not be tried for the same offence over again The Sub Divisional Magistrate dismissed this application by his order passed on July 13 1954 holding that he was bound by the order of the High Court dated April 8 1954 which directed the case to be tried and which was passed after the judgment of this Court in Kedar Nath Bajoria s case 1 had been delivered The appellant them moved the High Court at Calcutta in revision against this order of the Sub Divisional Magistrate by criminal revision petition No 930 of 1954 The High Court by its judgment dated February 10 1955 dismissed this revision case holding that notwithstanding the judgment of this Court in Kedar Nath Bajoria s case 1 the judgment of Chunder J dated March 19 1953 was binding on the appellant and it bad therefore to be held that the acquittal of the appellant by Mr Dutta Gupta no longer remained in force after the judgment of Chunder J It is from this judgment that the present appeal arises In my opinion the view taken by the High Court is right The question is whether the appellant is entitled to an order quashing the prosecution against him as he bad earlier been acquitted by Mr Dutta Gupta The appellant contends relying on the principle of autrefois acquit that he is That principle is enacted in section 403 of the Code of Criminal Procedure It then comes to this Is the appellant entitled to the benefit of section 403 The principle stated in the section is that when a person has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of it he shall not while the conviction or acquittal remains in force be tried again for the same offence In order therefore that the appellant may have the benefit of the section he must have been tried by a court of competent jurisdiction Furthermore such acquittal must be in force 1 71 It is said that notwithstanding the judgment of the High Court in J K Gupta s case 1 it must now be held in view of the judgment of this Court in Kedar Nath Bajoria s case2 that the acquittal by Mr Dutta Gupta was an acquittal by a court of competent jurisdiction It seems to me that the judgment in Kedar Nath Bajoria s case is really irrelevant If the Court of Mr Dutta Gupta was in law a court of competent jurisdiction it would remain such whether this Court declared it to be so or not Any court before which a plea of autrefois acquit is taken must decide for itself and of course in coming to its decision it must follow such precedents as are binding upon it whether the Court which had earlier acquitted the accused was a court of competent jurisdiction Its power to decide that question is not derived from a decision of a higher court pronouncing upon the question of the competence of the Court which earlier acquitted the accused Therefore it seems to me that Kedar Nath Bajoria s Case 2 does not decide the case before us Now in order to get the benefit of section 403 the appellant has to show that the Court of Mr Dutta Gupta which acquitted him was a court of competent jurisdiction But another prior question arises in this case That is this Is it open to the appellant in view of the order of Chunder J to contend that the Court of Mr Dutta Gupta was a court of competent jurisdiction In other words can he at all raise the question whether the Court of Mr Dutta Gupta was a court of competent jurisdiction Is he not bound by the judgment of Chunder J to the position that Mr Dutta Gupta did not constitute a court of competent jurisdiction It is no doubt true that if it is open to the appellant to contend that the Court of Mr Dutta Gupta was a court of competent jurisdiction the decision of this Court in Kedar Nath Bajoria s case 2 would help him to establish that contention If it is Dot so open to him that decision does not avail him at all It seems to me that the judgment of Chunder J prevents the appellant from raising the question that 1 2 72 the Court of Mr Dutta Gupta was a court of com petentjurisdiction That question was directly raised by the appellant by revision petition No 965 of 1952 of in which the judgment of Chunder J was passed Chunder J held that the Court of Mr Dutta Gupta was not a court of competent jurisdiction He bad fall jurisdiction to decide the petition and the question His jurisdiction to do so was never questioned The decision of Chunder J is a final judgment and must have effect as such It must be treated as binding on the appellant It is no doubt true that Kedar Nath Bajoria s case 1 shows that Chunder J s judgment was wrong That however does not make his decision lose its force as a final judgment A final judgment does not lose its force as such because a superior court in a different case subsequently takes a view which shows that judgment to be wrong A final judgment however wrong is still a final judgment Its binding force does not depend upon its correctness In order to dispel any doubt as to the jurisdiction of Chunder J to decide the criminal revision petition No 965 of 1952 I wish to observe here that there is nothing in the order of the High Court dated April 8 1954 to show that he did not have such jurisdiction That order only held that in view of section 12 of the Act as amended the Court at Darjeeling constituted under the Act had no jurisdiction to try the case against Bose as it had been pending on the specified date in a court which was not a court constituted under the Act That reasoning does not apply to the case against the appellant in which the criminal revision petition NO 965 of 1952 had been moved for that case was not pending on that date in any court at all Then it seems to me clear that the decision of Chunder J being a final judgment and binding on the appellant he cannot be heard to contend that the Court of Mr Dutta Gupta by which he was acquitted was a court of competent jurisdiction That result follows from the rule of res judicata which applies to all final judgments The rule is not a matter of 1 73 technicality It is based on fundamental principles expressed in the maxims interest reipublicae ut sit finie litium and nemo debet bis vexari pro una et eadem causa see Halsbury s Laws of England 3rd Edvol 15 p177 Brett MR said in In re May The doctrine of res judicata is not a technical doctrine applicable only to records It is a very substantial doctrine and it is one of the most fundamental doctrines of all Courts that there must be an end of litigation and that the parties have no right of their own accord after having tried a question between them and obtained a decision of a Court to start that litigation over again on precisely the same questions I feel no doubt that the principle of the finality of judgment obtains in criminal law as well as it does in civil law Section 403 of the Code is no doubt based on the same principle But I find no reason to confine its application within the limits of the section I find clear support for this view in the judgment of the Privy Council in Sambasivam vs Public Prosecutor Federation of Malaya2where it was said at p 479 The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence To that it must be added that the verdict is binding and conclusive on all subsequent proceedings between the parties to the adjudication The maxim Res judicata pro veritate aceipitur is no less applicable to criminal than to civil proceedings Then it is said that the order of Chunder J was an interlocutory order to which the principle of res judicata does not apply I am unable to agree that order was an interlocutory order It plainly decided the right of the appellant it decided that the appellant had no right not to be prosecuted again It is clear law that the principle of res judicata applies to all orders which finally determine the rights of the 11885 518 10 2 74 parties see Halsbury s Laws of England 3rd Ed p 177 The case of Ram Kirpal Sukul vs Mussumat Rup Kuari 1 is of great assistance There in the course of execution proceedings it had been decided by the District Judge Mr Probyn that the decree under execution awarded future mesne profits It Was held by the Judicial Committee that in the later stages in the course of the same execution proceeding the question whether the decree had awarded mesne profits could not in view of Mr Probyn s decision be reopened and canvassed again It was observed at pp 42 43 The decree of the Sudder Court was a written document Mr Probyn had jurisdiction to execute that decree and it was consequently within his jurisdiction and it was his duty to put a construction upon it He had as much jurisdiction upon examining the terms of the decree to decide that it did award mesne profits as he would have had to decide that it did not The High Court assumed jurisdiction to decide that the decree did not award mesne profits but whether their construction was right or wrong they erred in deciding that it did not because the parties were bound by the decision of Mr Probyn who whether right or wrong had decided that it did a decision which not having been appealed was final and binding upon the parties and those claiming under them It is not necessary nor would it be correct for their Lordships to put their construction upon the decree of the Sudder Court If the Subordinate Judge and the Judge were bound by the order of Mr Probyn in proceedings between the same parties on the same judgment the High Court were bound by it and so also are their Lordships in adjudicating between the same parties Applying the reasoning adopted in Ram Kirpal s case1 it would appear that the order of Chunder J cannot now be questioned before us and the appellant is bound by it 1 1885 LR 11 IA 37 75 As the appellant cannot contend that his acquittal by Mr Dutta Gupta was an acquittal by a court of competent jurisdiction he cannot plead section 403 in support of this appeal I appreciate that the view that I have taken is hard on the appellant But it does not seem to me that he was entirely without a remedy I would have been prepared to give relief to the appellant if he had appealed from the judgment of Chunder J and for that purpose I would have felt no difficulty in extending the time to appeal As it is I feel that the appeal must be dismissed ORDER OF COURT In accordance with the opinion of the majority the appeal is allowed the order of the Calcutta High Court directing the complaint to be proceeded within the Court of the Sub Divisional Magistrate is set aside and the proceedings against the appellant are quashed

The retrenched workmen of the appellant concern who were paid compensation as provided in s 25F of the claimed that they were entitled to be paid in addition gratuity under the gratuity scheme in force in the appellant concern as modified by the award of the industrial tribunal dated August 18 1952 The award provided The following gratuity scheme shall be for cases of retrenchment or termination of service by the company for any reason other than misconduct or for cases of resignation with the consent of the management The Appellate Tribunal took the view that gratuity provided under the award was different from compensation on retrench ment payable to a workman under section 25F of the Act Held that on a proper construction of the award the amount payable thereunder to the workmen on retrenchment though called gratuity was really compensation on account of retrenchment as provided under section 25F of the Act and that the workmen were only entitled to one or the other whichever was more advantageous to them in view of section 25J of the Act It was not the intention of the legislature that a workman on retrenchment should get compensation twice ie once under the Act and once again under the scheme in force providing for retrenchment compensation by whatever name the payment might have been called

eal No XIII of 1950 Appeal from a judgment and decree of a Division Bench of the Madras High Court Wadsworth and Rajamannar JJ dated 27th November 1945 in Appeal No 518 of 1941 reversing the judgment of the Subordinate Judge of Mayuram dated 10th July 1944 in Original Suit No 34 of 1943 B Somayya R Ramamurti with him for the appel lant 951 KS Krishnaswami Aiyangar K Narasimha Aiyangar with him for respondent No 1 1950 December 21 The Judgment of the Court was delivered by MUKHERJEA J This appeal is directed against an appellate judgment of a Division Bench of the Madras High Court dated November 27 1945 reversing the decision of the Subordinate Judge of Mayuram made in Original Suit No 34 of 1943 There is no dispute about the material facts of the case which lie within a short compass and the controversy centers round one point only which turns upon the construction of a will left by one Kothandarama Ayyar to whom the properties in suit admittedly belonged Kothandarama who was a Hindu inhabitant of the District of Tanjore and owned considerable properties died on 25th April 1905 leaving behind him as his near relations his adoptive mother Valu Ammal his widow Parbari and two daughters Nagammal and Gnanambal of whom Nagammalwho became a widow during the testator s life time had an infant daughter named Alamelu Kothandarama executed his last will on 13th March 1905 and by this will the genuineness of which is not disputed in the present litigation he gave an authority to his widow to adopt unto him a son of his second daughter Gnanambal should she beget one before January 1908 or in the alter native any of the sons of his two nephews if the widow so chose The suit out of which the appeal arises was commenced by Raju Ayyar who was a son of the testator s nephews and was taken in adoption by the widow in terms of the will and it was for recovery of possession of certain properties known as Kothangudi properties which formed part of the testator s estate on the allegation that under the will mentioned above these properties were given to Nagarnmal the wid owed daughter of the testator for her life time but as there was no disposition of the remaining interest after the death of the life tenant the properties vested in the 952 plaintiff as the adopted son and heir of the deceased on the death of Nagammal which took place on 3rd of January 1943 Gnanambal the second daughter of the testator was the first and main defendant in the suit and she resisted the plaintiff s claim primarily on the ground that there was no intestacy as regards the suit properties after the termina tion of the life interest of Nagammal and that under the terms of the will itself she was entitled to get these properties in absolute right after the death of Nagammal subject to payment of a sum of Rs 5000 to Alamelu the daughter of Nagammal Alamelu was made the second defendant in the suit and as she died when the suit was pending in the trial court her heirs were impleaded as defendants 3 to 9 The first court accepted the contention of the defendant No 1 and dismissed the plaintiff s suit On appeal to the High Court the judgment was reversed and the plaintiff s claim was allowed The defendant No 1 has now come up appeal to this court To appreciate the contentions that have been raised by the parties to this appeal it would be convenient first of all to refer briefly to the relevant provisions of the will After cancelling his previous wills the testator in the third paragraph of his will gave his widow authority to adopt a son She was to adopt the son of Gnanambal if the latter got a son previous to January 1908 or she could adopt any of the sons of the testator s nephews Paragraph 4 provides that if the first course is followed that is if the son of Gnanambal is adopted by the widow then all the properties movable and immovable belonging to the testator excepting the village of Kothangudi the house at Injigudi and the other properties which were disposed of by the will would go to such adopted son Paragraph 5 which is materi al for our present purposes runs as follows The whole village of Kothangudi and the house at Injigudi both of Nannilam Taluk my daughter Nagammal shall enjoy with life interest and after her the said property shall pass to my daughter Gnanambal and her chil dren on payment by the latter of Rs 5000 to Alamelu Nagam mal s daughter 953 By the sixth paragraph the Nallathukudi and Pungavur villages together with certain house property at Mayavaram are given to the testaor s adoptive mother and wife in equal shares to be enjoyed by both of them during their life time and after their death they are to pass on to the adopted son Paragraph 7 gives a small huse absolutely to Nagammal for her residence and paragraph 8 makes certain provisions for management of the properties In paragraph 9 direction is given to collect the money due on the insurance policy on the life of the testator and to pay off his debts Pragraph 10 mentions certain charities the expenses of which are to be derrayed from the income of the Nallathukudi properties Paragraph 11 then says that in the event of the widow adopt ing any of the nephew s sons of the testator such son shall inherit the entire property at Kokkur and also the lands of Nallathukudi after the death of the testator s wife and mother By paragraph 12 the village of Maruthanthanallur is given to Gnanambal and paragraph 13 provides that the village of Kothangudi shall be enjoyed by Nagammal as stated in paragraph 5 By paragraphs 15 and 16 the remainder in the house at Mayavaram situated in the east row of Vellalar kovil Street is given to Gnanambal after the death of the testator s wife and mother Paragraph 18 provides for cer tain other charities In paragraph 20 it is stated that if the wife of the testator should die before January 1908 without making any adoption then the eldest or any son of Gnanambal would be his adopted son without any formality and inherit all the properties subject to the conditions men tioned in the will Paragraph 21 which is the penultimate paragraph in the will further lays down that if all the three contingencies fail and no adoption is taken the male child or children born to Gnanambal shall inherit as grand sons all the properties of the testator subject to the conditions specified in the will These in brief are the dispositions made in the will The plaintiff founds him claim upon paragraph 13 of the will which according to him contains the enire disposition so far as the Kothangudi 954 property is concerned That village is given to Nagarm mal for her life with no disposition of the remaining inter est If the remainder has not been disposed of there is no doubt that the plaintiff would be entitled to the property as the heir of the testator under the ordinary law of inher itance The defendant No 1 on the other hand relies on para graph 5 of the will which gives the Kothangudi village and the Injigudi house to Nagammal to he enjoyed by her so long as she lives and after her death they are to go to Gnanambal and her children subject to the payment of a sum of Rs 5000 to be paid to Alamelu the daughter of Nagammal The High Court on a construction of the will has found in favour of the plaintiff primarily on the ground that in the contingency which happened in the present case viz that the widow took in adoption a nephew s son of the testa tor paragraph 5 of the will did not come into operation at all The disposition as regards Kothangudi property is therefore to be found exclusively in paragraph 13 of the will and the actual words employed by the testator in that paragraph do not indicate that apart from Nagammal s taking a life estate in the Kothangudi village the rest of the provisions in regard to this property as laid down in para graph 5 would also be incorporated into paragraph 13 An Obvious difficulty according to the learned Judges in accepting the construction sought to be put upon the will by defendant No 1 is that paragraph 5 speaks both of Kothan gudi and Injigudi properties whereas paragraph 13 does not mention the Injigudi house at all nor does it purport to give a life interest in the same to Nagammal It could not be reasonably held on a construction of the will that the intention of the testator was that Gnanambal was to pay Rs 5000 to Alamelu for the Kothangudi property alone The result was that the plaintiff s claim was allowed It is the propriety of this decision that has been challenged before us in this appeal In course of the arguments we have been referred by the learned Counsel on both sides to quite a large 955 number of decided authorities both English and Indian in support of their respective contentions It is seldom prof itable to compare the words of one will with those of anoth er or to attempt to find out to which of the wills upon which decisions have been given in reported cases the will before us approximates closely Cases are helpful only in so far as they purport to lay down certain general princi ples of construction and at the present day these general principles seem to be fairly well settled The cardinal maxim to be observed by courts in constru ing a will is to endeavour to ascertain the intentions of the testator This intention has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he had been better informed or better advised In construing the language of the will as the Privy Council observed in Venkata Narasimha vs Parthasarathy 1 the courts are entitled and bound to bear in mind other matters than merely the words used They must consider the surrounding circumstances the position of the testator his family relationship the probability that he would use words in a particular sense and many other things which are often summed up in the somewhat picturesque figure The court is entitled to put itself into the testator s armchair But all this is solely as an aid to arriving at a right construction of the will and to ascertain the meaning of its language when used by that particular testator in that document So soon as the con struction is settled theduty of the court is to carry out the intentions as expressed and none other The court is in no case justified in adding to testamentary dispositions In all cases it must loyally carry out the will as properly construed and this duty is universal and is true alike of wills of every nationality and every religion or rank of life A question is sometimes raised as to whether in constru ing a will the court should lean against 1 42 IA 51 at p70 956 intestacy The desire to avoid intestacy was considered by the Privy Council in the case referred to above as a rule based on English necessity and English habits of thought which should not necessarily bind an Indian court It seems that a presumption against intestacy may be raised if it is justified by the context of the document or the surrounding circumstances but it can be invoked only when there is undoubted ambiguity in acertainment of the intentions of the testator As Lord Justice Romer observed in Re Edwards Jones vs Jones 1 it cannot be that merely with a view to avoiding intestacy you are to do otherwise than construe plain words according to their plain meaning It is in the light of the above principles that we should proceed to examine the contents of the will before us The present will which is the last of four testamentary document executed by the testator appears to have been prepared with a great deal of care and circumspection The testator had clearly in mind the different situations that might arise in case his widow adopted either Gnanambal s son or a son of one of the nephews of the testator He envis aged also the possibility of the widow dying without making any adoption at all Besides the son to be adopted the only other relations who had natural claims upon the affection and bounty of the testator and for whom he desired to make provisions were his wife his adoptive mother the two datughters and the infant grand daughter The interests given to his wife the adoptive mother and the eldest daugh ter who were all widows were for their life time except a small house property which was given absolutely for the residence of the eldest daughter On the other hand the bequests in favour of Gnanambal who was a married daughter and the adopted son of the testator were absolute in their character Besides these dispositions there were certain gifts for charity which were to be met out of the income of the properties given to the wife and the adoptive mother for their lives One singular feature 1 19061 Ch 570 at p 574 957 in the will is that the testator took scrupulous care to include in it every item of property that he owned There are two provisions in the will relating Kothan gudi property to which the dispute in the present suit relates One is in paragraph 5 which gives this property along with the house at Injigudi to Nagammal the remainder being given to the appellant subject to the payment of a sum of Rs 5 000 to Alamelu the daughter of Nagammal The other is in paragraph 13 which merely says that Nagammal was to get it for life as stated in paragraph 5 The view taken by the High Court and which has been pressed for our acceptance here by the learned Counsel for the respondents is that paragraph 5 was meant to be operative only if Gna nambal s son was adopted by the widow As that was not done paragraphs 4 to 8 of the will it is urged will go out of the picture alttgether and it is not permissible to refer to them except to the extent that they were impliedly incorporated in the subsequent paragraphs of the will We do not think that this is the correct way of reading the document The testator undoubtedly contemplated different contingencies but a reading of the whole will does not show that he wanted to make separate and self contained provisions with regard to each of the contingencies that might arise and that each set of provisions were to be read as exclusive of the other set or sets That does not appear to be the scheme of the will The testator s main desire undoubtedly was that his widow should adopt the son of his daughter Gnanambal and in the first part his will after making provisions for his two daughters his wife and adoptive mother and also for certain charities he left the rest of his properties to the son of Gnanambal that was to be adopted by his widow In the second part of the will which is comprised in paragraphs 11 to 16 the testator sets out the modifications which he desires to make in the earli er dispositions in case a son of one of his nephews was adopted by the widow It was not the intention of the testa tor that on the happening of the second contingency all 958 the earlier provisions of the will would stand cancelled and the entire dispositions of the testator s property would have to be found within the four corners of paragraphs 11 to 16 of the will In our opinion the provisions made for the two daughters the widow and the adoptive mother as made in paragraphs 5 6 and 7 of the will and also the provisions for charities and payment of debts contained in paragraphs 9 and 10 were meant to be applicable under all the three contingencies referred to above This is clear from the fact that provisions of paragraphs 7 9 and 10 have not been repeated or incorporated in paragraphs 11 to 16 although it cannot be suggested that they were not to take effect on the happening of the second contingency Again in the third contingency contemplated by the testator which is described in paragraph 20 it is expressly stated that if no adoption is made the eldest or any son of Gnanambal would inher it the properties and he shall take the properties subject to the conditions mentioned in the will The conditions spoken of here undoubtedly refer to the provi sions made for the mother wife and the two daughters of the testator as well as in respect to payment of debts and carrying out of the charities specified in paragraph 10 The changes that are to take effect on the happening of the second event are in regard to the bequests in favour of the adopted son Under paragraph 4 of the will the adopted son was to get all the p roperties of the testator with the exception of those given to the two daughters the mother and the wife Under paragraph 11 if the adoption is of a nephew s son of the testator the adopted son gets only the Kokkur properties and the reversionary interestin Nallathukudi village after the death of the testator s wife and mother The village Maruthanthanallur which would go to the adopted son under paragraph 4 is taken away under para graph 11 and is given to Gnanambal She is also given the remaining interest in the Mayavaram house which was given to the adopted son under paragraph 6 Subject to the changes thus made the provisions 959 of paragraphs 5 6 and 7 would in our opinion still remain operative even if the person adopted was a nephew s son of the testator No change is made in paragraphs 11 to 16 with regard to the provision in paragraph 5 of the will In paragraph 13 it is only stated that the village Kothangudi shall be enjoyed by Nagammal as stated in paragraph 5 It may be conceded that this statement by itself does not let in the entire provision of paragraph 5 but that is not material for our present purpose It is enough that para graph 5 has not been changed or altered in any way The statement in paragraph 13 may after all be a loose expres sion which the testator used only for the purpose of empha sising that the Kothangudi village would be enjoyed by Nagammal even if Gnanambal s son was not adopted This is not by way of making any new disposition but only to affirm what has been already done The affirmation of a portion of the provision which is perfectly superfluous cannot exclude the rest It is somewhat difficult to say why the rest of the provisions in paragraph 5 particularly the benefit that was meant to be given to Alamelu was not repeated in para graph 13 It may be that the testator did not consider it necessary or it may be that it was due to inadvertance It is to be noted here that the testator did not mention any where in paragraphs 11 to 16 the small house that was given absolutely to Nagamreal under paragraph 7 It was certainly not the intention of the testator that Nagammal would not have that house on the happening of the second contingency If paragraph 5 itself is held to be applicable and in our opinion it should be so held there is no question of adding to or altering any of the words made use of by the testator It is not a question of making a new will for the testator or inventing a bequest for certain persons simply because the will shows that they were the objects of the testator s affection The provision is in the will itself and it is only a question of interpretation as to whether it is ap plicable in the circumstances which have happened in the present case The position therefore seems 960 to be that the disposition made in paragraphs 5 6 and 7 which were in favour of the mother the wife and the two daughters of the testator were meant to take effect immedi ately on the testator s death They were not contingent gifts in the sense of being made dependent upon the adoption of Gnanambal s son by the wife of the testator Only the reversionary interest in the Mayavaram house which was to vest in the adopted son under the provision of paragraph 6 after the death of the widow and the mother was taken away from the adopted son and given to Gnanambal in case the person adopted was not her own son If the whole of para graph 5 remains operative the Injigudi house must also be deemed to have been given to Nagammal for her life and in fact the evidence is that she enjoyed it so long as she was alive No difficulty also arises regarding the payment of Rs 5000 to Alamelu as has been stated by the High Court in its judgment Having regard to the meticulous care with which the testator seems to have attempted to provide for the differ ent contingencies that might arise and the anxiety displayed by him in making an effective disposition of all the proper ties he owned it is not probable that he would omit to make any provision regarding the future devolution of the Kothan gudi village if he really thought that such direction had to be repeated in the latter part of the will The omission of the gift of Rs 5000 to Alamelu also cannot be explained on any other hypothesis It is not necessary for the purpose of the present case to invoke any rule of presumption against intestacy but if the presumption exists at all it certainly fortifies the conclusion which we have arrived at The result is that the appeal is allowed the judgment and decree of the of the High Court are set aside and those of the Subordinate Judge restored The appellant will have costs of all the courts Appeal allowed Agent for respondent No 1 M section Krishnamoorthi Sastri

It was a contradiction in terms to say that a strike in a public utility service which was clearly illegal could also be justified The law does not contemplate such a position nor is it warranted by any distinction made by the It should be clearly understood by workmen who participate in such a strike that they cannot escape their liability for such participation and any tendency to condone such a strike must be deprecated The only question of practical importance that arises in such a strike is what should be the kind and quantum of the punishment to be meted out to the participants and that question has to be decided on the charge sheet served on each individual workman and modulated accordingly In determining the question of punishment distinction has to be made between those who merely participated in such a strike and those who were guilty of obstructing others or violent demonstrations or defiance of law for a wholesale dismissal of all the workmen must be detrimental to the industry itself If the employer before dismissing a workman gives him Sufficient opportunity of explaining his conduct and no question of mala fides or victimisation arises it is not for the Tribunal in adjudicating the propriety of such dismissal to look into the sufficiency or otherwise of the evidence led before the enquiring officer or insist on the same degree of proof as is required in a Court of Law as if it was sitting in appeal over the decision of the employer In such a case it is the duty of the Tribunal to uphold the order of dismissal Consequently in the present case where the appellants who were carrying on business in water transport service notified as a public utility service dismissed their workmen for joining an illegal strike on enquiry but without serving a charge sheet oil 2 each individual workman and the Industrial Tribunal directed their reinstatement excluding only those who had been convicted under section 143 of the Indian Penal Code but including those convicted under section 188 of the Code with full back wages and allowances Held that the decision of the Tribunal to reinstate those who had been convicted under section 188 of the Code must be set aside and the wages and allowances allowed to those reinstated must be reduced by half and the award modified accordingly Held further that the Must be read as subject to the paramount law of the land namely the Constitution and the finality attaching to an award under sections 17 and 17A of the Act must therefore yield to the overriding powers of this Court under article 136 of the Constitution As the award in the instant case did not fall within the Provisos to section 17 of the Act it was not correct to contend that the appellants had any other remedies thereunder to exhaust before they could come up in appeal to this Court Nor was it correct to contend that the Government of Assam was a necessary party in the appeal inasmuch as it had acted by virtue of delegated powers of legislation under the Act in making the award enforceable as law A State Government plays no part in such a proceeding except to make the reference under section 10 of the Act nor has it anything to do with regard to the publication of the award which is automatic under section 17 of the Act or its operation unless the case falls within the provisos to section 17A of the Act A lock out lawfully declared under section 243 of the Act does not cease to be legal by its continuance beyond the strike although such continuance may be unjustified

ivil Appeal No 143 of 1951 Appeal by special leave from the judgment and decree dated 23rd March 1950 of the High Court of Judicature at Patna Reuben and Jamuar JJ in appeal from Original Decree No 206 of 1946 arising out of a decree dated 31st January 1946 of the Subordinate Judge at Patna in Title Suit No 554 of 1943 45 Saiyid Murtaza Fazl Ali for the appellants NC Chatterjee A N Sinha with himfor the respond ents Nos 1 to 9 BK Saran for the respondents Nos 11 to 16 April 14 The Judgment of the Court was deliv ered by CHANDRASEKHARA AIYAR J This is an appeal by the defendants from a decree of the Patna High Court reversing a decree of the Subordinate Judge s Court at Patna and de creeing the plaintiffs suit for possession against the defendant first party who may be called for the sake of convenience as the Gopes The lands were khudkhasht lands partly belonging to the plaintiffs first party and partly belonging to Mussammat Anaro Kuer from whom the plaintiffs second and third par ties trace title The ancestors of plaintiffs first party gave on 28 9 1899 an ijara with possession to one Lakhandeo Singh an ancestor of the defendant second party under Exhib it I b for a term 777 of six years from 1307 Fasli to 1312 Fasli for Rs 540 The poshgi money was to be repaid in one lump sum at the end of Fasli 1312 If there was no redemption then the ijara was to continue in force till the money was repaid Mussammat Anaro Kuer gave her share in ijara to the same Lakhandeo Singh orally on 10th June 1905 for a period of three years for Rs 542 Lakhandeo Singh who is represented now by the defendant second party made a settlement of the land thus got by him 826 acres or 13 bighas in all with one Ram Lal Gope an ancestor of the defendant first party for a period of three years from Fasli 1315 to Fasli 1318 There was a patta in favour of the tenant and a kabuliyat in favour of the landlord This was in 1908 The mortgage was redeemed in June 1942 by payment in proceedings under section 83 of the Transfer of Property Act When the plaintiffs went to take possession they were resisted by the Gopes defendant first party and after unsuccessful criminal proceedings the plaintiffs filed the present suit The Subordinate Judge dismissed it holding that the Gopes were raiyats having acquired permanent occupancy rights in the lands as the result of the settlement by the mortgagee Lakhandeo Singh On appeal the High Court set aside this decision and gave the plaintiffs a decree for possession on the finding that the defendants were not raiyats and had no permanent rights of occupancy This court granted to the defendants special leave to appeal The suit was in the alternative for recovery of the value of the lands as compensation or damages from the defendant second party in case it was found that the defendant first party could not be ejected The trial court decreed this alternative claim and awarded to the plaintiffs compensation at the rate of Rs 200 per bigha The defendant second party carried the matter in appeal to the High Court and succeeded But we have nothing to do with this matter in the present appeal At the trial the plaintiffs alleged and maintained that the lands were their zirat lands within the meaning SUPREME 778 of section 116 of the Bihar Tenancy Act and that the defend ant first party could acquire no rights of occupancy in the same The Subordinate Judge found against this contention and held that they were khud kasht or bakasht lands of the proprietor in which rights of occupancy can be acquired He negatived the plea of the defendants that they were their ancestral raiyati lands He also held that there was no collusion between the mortgagee Lakhandeo Singh and Ram Lal Gope in the matter of settlement of lands It is on the basis of these findings which were accepted by both the parties that the hearing of the appeal proceeded before the High Court It was held by the Privy Council in Bengal Indigo Company vs Roghobur Das1 that a zuripeshgi lease is not a mere contract for the cultivation of the land at a rent but is a security to the tenant for the money advanced They observed speaking of the leases before them that the leases in question were not mere contracts for the cultiva tion of the land let but that they were also intended to constitute and did constitute a real and valid security to the tenant for the principal sums which he had advanced and interest thereon The tenants possession under them was in part at least not that of cultivators only but that of creditors operating repayment of the debt due to them by means of their security These words apply to the ijara deed before us its dominant intention was to provide a security for the loan advanced and not to bring into existence any relationship of landlord and ten ant The general rule is that a person cannot by transfer or otherwise confer a better title on another than he himself has A mortgagee cannot therefore create an interest in the mortgaged property which will enure beyond the termina tion of his interest as mortgagee Further the mortgagee who takes possession of the mortgaged property must manage it as a person of ordinary prudence would manage it if it were his own and he must not commit any act which is de structive 1 779 or permanently injurious to the property see section 76 sub clauses a eof the Transfer of Property Act It follows that he may grant leases not extending beyond the period of the mortgage any leases granted by him must come to an end at redemption A mortgagee cannot during the subsistence of the mortgage act in a manner detrimental to the mortgagor s interests such as by giving a lease which may enable the tenant to acquire permanent or occupancy rights in the land thereby defeating the mortgagor s right to khas possession it would be an act which would fall within the provisions of section 76 subclause e of the Transfer of Property Act A permissible settlement by a mortgagee in possession with a tenant in the course of prudent management and the springing up of rights in the tenant conferred or created by statute based on the nature of the land and possession for the requisite period is a different matter altogether It is an exception to the general rule The tenant cannot be ejected by the mortgagor even after the redemption of the mortgage He may become an occupancy raiyat in some cases and a non occupancy raiyat in other cases But the settle ment of the tenant by the mortgagee must have been a bona fide one This exception will not apply in a case where the terms of the mortgage prohibit the mortgagee from making any settlement of tenants on the land either expressly or by necessary implication Where all the zamindari rights are given to the mortga gee it may be possible to infer on the proper construction of the document that he can settle lands with tenants in the ordinary course of management and the tenants might acquire certain rights in the land in their capacity as tenants In the case of Manjhil Lal Biswa Nath Shah Deo vs Shaikh Mo hiuddin1 there was a bona fide settlement of mortgaged rayati land by the mortgagee with tenants and it was held that the mortgagor was not entitled to evict them after redemption The earlier decision of Babu Bhairo Nath Ray vs Shanke Pahan2 related to bakasht lands and 1 2 Pat31 780 there was no provision in the zuripeshgi lease restricting the power of the mortgagee lessee as regards settlement of tenants Khudkasht lands and bakasht lands are really in the nature of raiyati lands which come into the possession of the proprietor by surrender abandonment or purchase In the present case we have the following clause in the ijara deed It is desired that the ijaradar should enter into possession and occupation of the share let out in ijara being the khudkasht land under his own cultivation culti vate them pay 2 annas as reserved rent year after year to us the executants and appropriate the produce thereof year after year on account of his having the ijaradari interest This term disentitles the mortgagee from locating tenants on the land mortgaged Ram Lal Gope the grandfather of the defendants first party who executed the kabuliat in 1908 must have known of the title of Lakhandeo Singh the mortga gee and the terms under which he held the lands under the registered zuripeshgi ijara deed and this is most probably why the tenant not only took the lease for a period of 3 years but expressly undertook to give up possession over the thika lands on the expiry of the period of lease without urging any claim on the score that the lands were his old kasht lands His kabuliat Exhibit 11 in fact refers to Lakhandeo Singh s ijaradari interest In view of these facts the learned Judges of the High Court stated that they were not prepared to hold that the settlement was a bona fide one or the mortgagee was within his rights in settling these lands Strong reliance was placed for the appellants on the Full Bench decision Binad Lal Pakrashi and Others vs Kalu Pramanik and Others 1 where it was held that a person inducted into possession of land as a raiyat even by a trespasser became a non occupancy raiyat within the meaning of section 5 sub section 2 of the Bengal Tenancy Act and was protected from ejectment But this decision has been subsequently 1 Cal 781 explained away in several cases as based on the proposition that the rights must have been bona fide acquired by them from one whom they bona fide believed to have the right to let them into possession of the land Such however is not the case here in view of the recitals in the ijara deed in favour of Lakhandeo Singh and the kabuliat by Ram Lal Gope Sections 20 and 21 of the Bihar Tenancy Act were re ferred to by the learned counsel for the appellants in the course of his arguments and he pointed out that the land in this case was held continuously by his clients and their predecessors from 1908 to 1942 when they were sought to be ejected For these sections to apply we must be in a position to hold that the appellants were settled raiy ats Raiyals is defined in sub clause 2 of section 5 as meaning primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself or by members of his family Sub clause 3 provides that a person shall not be deemed to be a raiyat unless he holds land either immediately under a proprietor or immediately under a tenure holder Lakhandeo Singh was not a proprie tor by which term is meant a person owning whether in trust or for his own benefit an estate or part of an es tate he was only a mortgagee Nor was he a tenure holder or under tenureholder as he does not comply with the defi nition given in sub clause 1 of section 5 namely a person who had acquired from a proprietor or from another tenure holder a right to hold land for the purpose of col lecting rents or for the purpose of bringing the land under cultivation by establishing tenants on it Such proof as there is in this case only goes to show that the lands were under the cultivation of the plaintiffs and that they were made over to the possession of the mortgagee so that he might cultivate them himself Hence Ram Lal Gope could not claim that he was a settled raiyat of the village and that under the statute he secured occupancy rights in the lands Which he took on lease from Lakhandeo Singh 782 Lastly it was urged that the ijara by Mst Anaro Kuer was admittedly an oral transaction and there was no proof of any prohibition against the settlement with tenants so far as her share 397 acres was concerned and that the rights of the parties as regards this area would stand on a differ ent footing from the rights in respect of the 4 acres and 29 cents belonging to the plaintiff first party This point was not taken in the courts below where the two ijaras given to Lakhandeo Singh were dealt with as if they were part and parcel of one and the same transaction the rights and liabilities whatever they were being common to both We cannot allow the point to be taken now The result is that the High Court s decree is con firmed and the appeal is dismissed with costs of the plain tiffs respondents There will be no order as to costs of the other respondents Appeal dismissed Agent for the respondents Nos 1 to 9 MM Sinha Agent for the respondents Nos 11 to 16 KL Mehta

A complaint was filed against the appellant and one Bose before the Sub Divisional Magistrate Darjeeling Under the WB Criminal Law Amendment Special Courts Act 1949 the case was allotted to Mr Dutta Gupta Special judge Alipur who by order dated July 11 1951 acquitted the appellant but convicted Bose Bose appealed to the High Court which held the Act to be ultra vires and quashed the conviction The Act was amended and another complaint was then filed against the appellant and Bose before Mr Lodh Special judge Alipur The appellant pleaded the bar of section 403 Code of Criminal Procedure on account of his acquittal by Mr Dutta Gupta but the Special judge overruled the plea The appellant went to the High Court in revision and on March 19 1953 Chunder J held that the acquittal was not by a competent Court as the Act creating the court had been declared ultra vires and dismissed the application In the meantime the case was withdrawn from Mr Lodh and was allotted to the Special judge Darjeeling and a fresh complaint was filed against both accused On an application made by Bose the High Court quashed these proceedings and directed the proceedings pending in the Court of the Sub Divisional Magistrate Darjeeling to be disposed of in accordance with law By this time the Supreme Court had held in Kedar Nath Bajoria vs The State of West Bengal that the Act was intra vires The appellant again raised the plea of the bar of section 403 Code of Criminal Procedure contending that in view of the decision of the Supreme Court his acquittal was by a competent Court The plea was rejected by the Magistrates and a revision application was dismissed by the High Court on the ground that the appellant was bound by the decision of Chunder J holding that the acquittal was by a Court not of competent jurisdiction The appellant appealed by special leave Held Sarkar J dissenting that in view of the decision of the Supreme Court in Kedar Nath Bajoria s case the trial before Mr Dutta Gupta Special judge was a lawful one and the acquittal of the appellant which was never set aside was a bar to another trial It was open to the appellant to challenge in this appeal the order made by Chunder J on March 19 1953 Except 59 where the statute so required it was not imperative upon a party to appeal against every error defect or irregularity in any order by which he may be aggrieved and by not doing so he did not forfeit his right to have the matter considered by the Supreme Court So far as the Supreme Court was concerned it made no difference whether the intermediate order complained of was passed by the Trial Court and was not taken to the High Court or it was taken to the High Court and was confirmed by it Kedar Nath Bajoria vs The State of West Bengal followed Maharaja Moheshur Singh vs The Bengal Government 1859 7 MIA 283 Alexander John Forbes vs Ameeroonissa Begum 1865 10 MIA 340 Sheonath vs Ram Nath 1865 10 MIA 413 and Shah Mukhun Lal vs Baboo Sree Kishen Singh 1868 12 MIA 157 referred to Sambasivam vs Public Prosecutor Federation of Malaya and Pritam Singh vs The State of Punjab AIR 1956 SC 415 applied Sarkar J The judgment of Chunder J prevented the appel lant from raising the question that the Court of Mr Dutta Gupta was a court of competent jurisdiction That decision was a final judgment and it did not lose its force as such because a Superior Court in a different case subsequently took a view which showed that the judgment was wrong That decision was not an interlocutory order as it decided that the appellant had no right not to be prosecuted again The principle of finality of judgment obtained in criminal law as well as it did in civil law In re May Sambasivam vs Public Prosecutor Federation of Malaya and Ram Kirpal Shukul vs Mussumat Rup Kuari 1883 LR 11 IA 37 referred to

Civil Appeal No 478 of 1957 Appeal from the judgment and decree dated August 17 1954 of the Punjab High Court Circuit Bench at Delhi in Regular First Appeal No 76 of 1952 arising out of the judgment and decree dated December 15 1951 of the Court of Sub Judge 1st Class Delhi in Suit No 169 of 1949409 of 1950 77 Ganapathy Iyer and D Gupta for the appellant Gurbachan Singh and Harbans Singh for the respondent October 28 The Judgment of the Court was delivered by SUBBA RAO J This appeal on a certificate granted by the High Court of Judicature for Punjab at Chandigarh is directed against its judgment confirming that of the Subordinate Judge First class Delhi in a suit filed by the respondent against the appellant for the recovery of compensation in respect of non delivery of goods entrusted by the former to the latter for transit to New Delhi On August 15 1947 India was constituted into two Dominions India and Pakistan and soon thereafter civil disturbances broke out in both the Dominions The respondent and others who were in government employment at Quetta found themselves caught in the disturbances and took refuge with their household effects in a government camp The respondent collected the goods of himself and of sixteen other officers and on September 4 1947 booked them at Quetta Railway Station to New Delhi by a passenger train as per parcel way bill No 317909 Under the said bill the respondent was both the consignor and consignee The N W Railway hereinafter called the Receiving Railway ends at the Pakistan frontier and the E P Railway hereinafter called the Forwarding Railway begins from the point where the other line ends and the first railway station at the frontier inside the Indian territory is Khem Karan The wagon containing the goods of the respondent and others which was duly seated and labelled indicating its destination as New Delhi reached Khem Karan from Kasur Pakistan before November 1 1947 and the said wagon was intact and the entries in the inward summary tallied with the entries on the labels Thereafter it traveled on its onward march to Amritsar and reached that place on November 1 1947 There also the wagon was found to be intact and the label showed that it was bound to New Delhi from Quetta On November 2 1947 it reached Ludhiana and remained 78 there between November 2 1947 and January 14 1948 and the vehicle summary showed that the wagon bad a label showing that it was going from Lahore to some unknown destination It is said that the said wagon arrived in the unloading shed at New Delhi on February 13 1948 and it was unloaded on February 20 1948 but no immediate information of the said fact was given to the respondent Indeed when the respondent made an anxious enquiry by his letter dated February 23 1948 the Chief Administrative Officer informed him that necessary action would be taken and he would be addressed again on the subject After further correspondence on June 7 1949 the Chief Administrative Officer wrote to the respondent to make arrangements to take delivery of packages lying at New Delhi Station but when the respondent went there to take delivery of the goods he was told that the goods were not traceable On July 24 1948 the respondent was asked to contact one Mr Krishan Lal Assistant Claims Inspector and take delivery of the goods Only a few articles fifteen in number and weighing about 61 maunds were offered to him subject to the condition of payment of Rs 1067 8 0 on account of freight and the respondent refused to take delivery of them After further correspondence the respondent made a claim against the Forwarding Railway in a sum of Rs 162123 with interest as compensation for the non delivery of the goods entrusted to the said Railway and as the demand was not complied with he filed a suit against the Dominion of India in the Court of the Senior Subordinate Judge Delhi for recovery of the said amount The defendant raised various pleas both technical and substantive to non suit the plaintiff The learned Subordinate Judge raised as many as 15 issues on the pleadings and held that the suit was within time that the notice issued complied with the provisions of the relevant statutes that the respondent had locus stand to file the suit and that the respondent had made out his claim only to the extent of Rs 80000 in the result the suit was decreed for a sum of Rs 80000 with proportionate costs 79 The appellant carried the matter on appeal to the High Court of Punjab which practically accepted all the findings arrived at by the learned Subordinate Judge and dismissed the appeal In this Court the appellant questions the correctness of the said decree Learned Counsel for the appellant raised before us the following points 1 there was no privity of contract between the respondent and the Forwarding Railway and if he had any claim it was only against the Receiving Railway 2 the suit was barred by limitation both under article 30 and Art 31 of the Indian Limitation Act and it was not saved by any acknowledgement or acknowledgements of the claim made within section 19 of the Limitation Act and 3 the notice given by the respondent under section 77 of the Indian Railways Act 1890 did not comply with the provisions of the said section inasmuch as the claim for compensation made thereunder was not preferred within six months from the date of the delivery of the goods for carriage by the Railway The third point may be taken up first and disposed of shortly Before the learned Subordinate Judge it was conceded by the learned Counsel for the defendant that the notice exhibit P 32 fully satisfied the requirements of section 77 of the Indian Railways Act and on that concession it was held that a valid notice under section 77 of the said Act bad been given by the respondent In the High Court no attempt was made to question the factum of this concession nor was it questioned by the appellant in its application for special leave As the question was a mixed one of fact and law we would not be justified to allow the appellant at this very late stage to reopen the closed matter We therefore reject this contention The learned Counsel for the appellant elaborates his first point thus The Receiving Railway the argument proceeds entered into an agreement with the respondent to carry the goods for consideration to their destination ie New Delhi and in carrying out the terms of the contract it might have employed the agency of the Forwarding Railway but the consignor was not in any way concerned with it and if loss was 80 caused to him by the default or neligence of the Receiving Railway he could only look to it for compensation and he had no cause of action against the Forwarding Railway This argument is not a new one but one raised before and the Courts offered different solutions based on the peculiar facts of each case The decided cases were based upon one or other of the following principles i the Receiving Railway is the agent of the Forwarding Railway ii both the Railways constitute a partnership and each acts as the agent of the other iii the Receiving Railway is the agent of the consignor in entrusting the goods to the Forwarding Railway an instructive and exhaustive discussion on the said three principles in their application to varying situations is found in Kulu Ram Maigraj vs The Madras Railway Company 1 G I P Railway Co vs Radhakisan Khushaldas 2 and Bristol And Exeter Railway vs Collins 3 iv the Receiving Railway which is the bailee of the goods is authorized by the consignor to appoint the Forwarding Railway as a sub bailee and after such appointment direct relationship of bailment is constituted between the consignor and the sub bailee and v in the case of through booked traffic the consignor of the goods is given an option under section 80 of the Indian Railways Act to recover compensation either from the Railway Administration to which the goods are delivered or from the Railway Administration in whose jurisdiction the loss injury destruction or deterioration occurs Some of the aforesaid principles cannot obviously be applied to the present case The statutory liability under section 80 of the Indian Railways Act cannot be invoked as that section applies only to a case of through booked traffic involving two or more Railway Administration in India whereas in the present case the Receiving Railway is situated in Pakistan and the Forwarding Railway in the Indian territory India and Pakistan are two independent sovereign powers and by the doctrine of lex loci contractus section 80 cannot 1 ILR 2 ILR 3 VII H LC 194 81 apply beyond the territories of India nor can the respondent rely upon the first two principles There is no allegation much less proof that there was any treaty arrangement between these two states governing the rights inter se in the matter of through booked traffic This process of elimination leads us to the consideration of the applicability of principles iii and iv to the facts of the present case The problem presented can only be solved by invoking the correct principle of law to mould the relief on the basis of the facts found We shall first consider the scope of the fourth principle and its applicability to the facts of this case Section 72 of the Indian Railways Act says that the responsibility of a railway administration for the loss destruction or deterioration of animals or goods delivered to the administration to be carried by railway shall subject to the other provisions of the Act be that of a bailee under sections 151 152 and 161 of the Section 148 of the defines bailment thus A bailment is the delivery of goods by one person to another for some purpose upon a contract that they shall when the purpose is accomplished be returned or otherwise disposed of according to the directions of the person delivering them GW Patson in the book Bailment in the Common Law says at p 42 thus If a bailee of a res sub bails it by authority then according to the intention of the parties the third person may become the immediate bailee of the owner or he may become a sub bailee of the original bailee At p 44 the learned author illustrates the principle by giving as an example a carrier of goods entrusting them to another carrier for part of the journey One of the illustrations given by Byles J in Bristol And Exeter Railway vs Collins 1 is rather instructive and it 1 VII HLC 194212 11 82 visualises a situation which may be approximated to the present one and it is as follows The carrier receiving the goods may therefore for the convenience of the public or his customers adopt a third species of contract He may say We do not choose to undertake responsibilities for negligence and accidents beyond our limits of carriage where we have no means of preventing such negligence or accident and we will not therefore undertake the carriage of your goods from A to B but we will be carriers as far as our line extends or our vehicles go and we will be carriers no further but to protect you against the inconveniences and trouble to which you might be exposed if we only undertook to carry to the end of our line of carriage we will undertake to forward the goods by the next carriers and on so doing our liability shall cease and our character of carriers shall be at an end and for the purpose of so forwarding and of saving the trouble of two payments we will take the whole fare or you may pay as one charge at the end but if we receive it we will receive it only as your agents for the purpose of ultimately paying the next carriers We may add to the illustration the further fact that the Forwarding Railway is in India a foreign country in relation to the country in which the Receiving Railway is situate Relying upon the said passages an argument is advanced to the effect that the consignor ie the respondent authorised his bailee namely the Receiving Railway to entrust the goods to the Forwarding Railway during their transit through India to their destination and the facts disclosed in the case sustain in the said plea There is no document executed between the respondent and the Receiving Railway hereunder the Receiving Railway was expressly authorized to create the Forwarding Railway the immediate bailee of the owner of the goods exhibit P 50 the railway receipt dated September 4 1947 does not expressly confer any such power But the facts found in the case irresistibly lead to that conclusion There 83 was no treaty between the two countries in the matter of through booked traffic at any rate none has been placed before us What we find is only that the Receiving Railway received the goods of the respondent and delivered the wagon containing the said goods to the care of the Forwarding Railway and the latter took over charge of the wagon carried it to New Delhi and offered to deliver the goods not lost to the respondent on payment of the railway freight In the absence of any contract between the two Governments or the Railways the legal basis on which the conduct of the respondent and the Railways can be sustained is that of the respondent delivered the goods to the Receiving Railway with an authority to create the Forwarding Railway as his immediate bailee from the point the wagon was put on its rails The same result could be achieved by approaching the case from a different perspective Section 194 of the says Where an agent holding an express or implied authority to name another person to act for the principal in the business of the agency has named another person accordingly such person is not a sub agent but an agent of the principal for such part of the business of the agency as is entrusted to him The principle embodied in this section is clearly stated by Thesiger L J in De Buasche vs Alt 1 at p 310 thus But the exigencies of business do from time to time render necessary the carrying out of the instructions of a principal by a person other than the agent originally instructed for the purpose and where that is the case the reason of the thing requires that the rule should be relaxed so as on the one hand to enable the agent to appoint what has been termed a sub agent or substitute and on the other hand to constitute in the interests and for the protection of the principal a direct privity of contract between him and such substitute The aforesaid facts clearly indicate that the respondent appointed the Receiving Railway as his agent to 1 310 84 carrv his goods on the railway to a place in India with whom Pakistan had no treaty arrangement in the matter of through booked traffic In that situation the authority in the agent must necessarily be implied to appoint the Forwarding Railway to act for the consignor during that part of the journey of the goods by the Indian Railway and if so by force of the said section the Forwarding Railway would be an agent of the consignor If no such agency can be implied in our view a tacit agreement between the Receiving Railway and the Forwarding Railway to carry the respondent s goods to their destination may be implied from the facts found and the conduct of all the parties concerned If the Receiving Railway was not an agent of the Forwarding Railway and if there was no arrangement between the two Governments the position in law would be that the foreign railway administration having regard to the exigencies of the situation obtaining during those critical days brought the wagon containing the goods of the respondent and left it with the Forwarding Railway and the latter consciously took over the responsibility of the bailee carried the wagon to New Delhi and offered to deliver the goods to the respondent The respondent also accepted that relationship and sought to make the Forwarding Railway responsible for the loss as his bailee On these facts and also on the basis of the course of conduct of the parties we have no difficulty in implying a contract of bailment between the respondent and the Forwarding Railway We may also state that section 71 of the permits the recognition of a contract of bailment implied by law under circumstances which are of lesser significance than those present in this case The said section reads A person who finds goods belonging to another and takes them into his custody is subject to the same responsiblity as a bailee If a finder of goods therefore accepts the responsibility of the goods he is placed vis a vis the owner of the goods in the same position as a bailee If it be held 85 that the Railway Administration in Pakistan for reasons of policy or otherwise left the wagon containing the goods within the borders of India and that the Forwarding Railway Administration took them into their custody it cannot be denied that their responsibility in regard to the said goods would be that of a bailee It is true there is an essential distinction between a contract established from the conduct of the parties and a quasi contract implied by law the former though not one expressed in words is implied from the conduct and particular facts and the latter is only implied by law a statutory fiction recognized by law The fiction cannot be enlarged by analogy or otherwise As we have held that the Receiving Railway was authorized by the respondent to engage the Forwarding Railway as his agent or as his bailee this section need not be invoked But we would have had no difficulty to rely upon it if the Forwarding Railway was equated to a finder of goods within the meaning of the section If so the next question that arises is what is the extent of the liability of the appellant in respect of the goods of the respondent entrusted to it for transit to New Delhi We have held that in the circumstances of the present case the application of the provisions of section 80 of the Indian Railways Act is excluded If so the liability of the Forwarding Railway is governed by section 72 of the said Act Under that section the responsibility of a railway administration for the loss destruction or deterioration of animals or goods delivered to the administration to be carried by railway shall subject to the other provisions of the Act be that of a bailee under sections 151 152 and 161 of the Under section 151 of the the bailee is bound to take such care of the goods bailed to him as a man of ordinary prudence would under similar circumstances take of his own goods of the same bulk quality and value of the goods bailed and under section 152 thereof in the absence of any special contract he is not responsible for the loss destruction or deterioration of the thing bailed if he has taken such amount 86 of care of it as described in section 151 In other words the liability under these sections is one for negligence only in the absence of a special contract Generally goods are consigned under a risk note under which the Railway Company is absolved of all liability or its liability is modified No such risk note is forth coming in the present case The question therefore reduces itself to an enquiry whether on the facts the Forwarding Railway observed the standard of diligence required of an average prudent men The facts found by the High Court as well as by the Subordinate Judge leave no room to doubt that the Forwarding Railway was guilty of negligence in handling the goods entrusted to its care The wagon reached Khem Karan intact D W 4 deposed that he received from the guard of the train that brought the wagon to the station the inward summary and that on checking the train with the aid of that summary he found that the wagon was intact according to the summary He also found the seals and labels of the wagon intact and that the inward summary tallied with the entries on the labels It may therefore be taken that when the Forwarding Railway took over charge of the goods they were intact The evidence of P W 1Thakar Das establishes that even at Amritsar the wagon was intact But thereafter in its onward march towards New Delhi it does not appear on the evidence that the necessary care was bestowed by the railway authorities in respect of the said wagon The said wagon remained in the yard of Ludhiana Station between November 2 1947 and January 14 1948 and also it appears from the evidence that when it reached that place the label showed that its destination was unknown What happened during these months is shrouded in mystery It is said that the said wagon arrived at New Delhi on February 13 1948 and that the Goods Clerk Ram Chander unloaded the goods in the presence of the head watchman Ramji Lal and head constable Niranjan Singh when it was discovered that only 15 packages were in the wagon and the rest were lost The Goods Clerk Ram Chander DW 4 the head watchman Ramji Lal D W 7 87 the Assistant Train Clerk Krishan Lal D W 8 and the head constable Niranjan Singh D W 16 speak to the said facts but curiously no contemporaneous relevant record disclosing the said facts was filed in the present case We cannot act upon the oral evidence of these interested witnesses in the absence of such record No information was given to the respondent about the arrival at New Delhi of the said wagon Only on June 7 1948 ie nearly four months after the alleged arrival of the wagon the respondent received a letter from the Chief Administrative Officer asking him to effect delivery of the packages lying in New Delhi Station but to his surprise when the respondent went to take delivery no goods were to be found there Only on August 18 1948 the appellant offered to the respondent a negligible part of the goods in a damaged condition subject to the payment of the railway freight and the respondent refuse to take delivery of the same From the said facts it is not possible to hold that the railway administration bestowed such care on the goods as is expected of an average prudent man We therefore hold that the Forwarding Railway was guilty of negligence Then remains the question of limitation The relevant articles are articles 30 and 31 of the Indian Limitation Act They read Description of suit period of Time from limitation wich period begins to run 30 Against carrier for compensation for losing or injuring One year When the loss or injury goods occurs Against a carrier for compensation for non delivery of or One year When the goods ought delay in delivering to be delivered goods Article 30 applies to a suit by a person claiming com pensation against the railway for its losing or injuring his goods and article 31 for compensation for nondelivery or delay in delivering the goods The learned Counsel for the appellant argued that article 30 would apply to the suit claim whereas the 88 learned Counsel for the respondent contended that article 31 would be more appropriate to the suit claim We shall assume that article 30 governed the suit claim and proceed to consider the question on that basis The question now is when does the period of limitation under article 30 start to run against the claimant The third column against article 30 mentions that the said claim should be made within one year from the date when the loss or injury occurs The burden is upon the defendant who seeks to non suit the plaintiff on the ground of limitation to establish that the loss occurred beyond one year from the date of the suit The proposition is self evident and no citation is called for Has the defendant therefore on whom the burden rests to prove that the loss occurred beyond the prescribed period established that fact in this case The suit was filed on August 4 1949 In the plaint the plaintiff has stated that loss to the goods has taken place on the defendant railway and therefore delivery has not been effected Though in the written statement there was a vague denial of this fact the evidence already noticed by us established beyond any reasonable doubt that the goods were lost by the Forwarding Railway when they were in its custody But there is no clear evidence adduced by the defendant to prove when the goods were lost It is argued that the goods must have been lost by the said Railway at the latest on February 20 1948 when the goods are alleged to have been unloaded from the wagon at the New Delhi Station but we have already discussed the relevant evidence on that question and we have held that the defendant did not place before the Court any contemporaneous record to prove when the goods were taken out of the wagon Indeed the learned Subordinate Judge in a considered judgment held that it had not been established by the Forwarding Railway that the goods were lost beyond the period of limitation The correctness of this finding was not canvassed in the High Court and for the reasons already mentioned on this material produced there was every justification for the findings If so it follows that the 89 suit was well within time In this view it is not necessary to express our opinion on the question whether there was a subsequent acknowledgment of the appellant s liability within the meaning of art 19 of the Indian Limitation Act In the result the appeal fails and is dismissed with costs Appeal dismissed

The cardinal maxim to be observed by courts in constru ing a will is to endeavour to ascertain the infentions of the testator This intention has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he had been better informed or better advised The courts are however entitled and bound to bear in mind other matters than merely the words used They must consider the surrounding circumstances the position of the testator his family relationship the probability that he would use words in a particular sense and many other things which are often summed up in the somewhat picturesque figure the court is entitled to put itself into the testator s armchair But all this is solely as an aid to arriving at a right construetion of the will and to ascertain the meaning of the language when used by that particular testator in that document As soon as the construction is settled the duty of the court is to carry out the intsentions as expressed The court is in no case justified in adding to testamentary dispositions In all cases it must loyally carry out the will as properly construed and this duty is 950 universal and is true alike of wills of every nationality and every religion or rank of life A presumption against intestacy may be raised if it is justified by the context of the document or the surrounding circumstances but it can be invoked only when there is undoubted ambignity in ascertainment of the intentions of the testator It cannot be that merely with a view to avoiding intestacy you are to do otherwise than construe plain words according to their plain meaning A Hindu died leaving a widow a widowed daughter and a married daughter G after he had made a will giving authori ty to his widow to adopt a son of G should she beget one or in the alternative a son of one of his nephews 4 of the will provided that if his widow adopted G s son all his properties except the village of K and the house at I and other properties disposed of by the will shall pass to the adopted son and para 5 provided as follows The whole of the village of K and the house a I my daughter N shall enjoy with life interest and after her the said property shall pass to my daughter G and her children on payment by the latter of Rs 5000 to A the daughter of N Later on amongst the provisions which he wished to make if a son of a nephew was adopted there was a provision which ran as follows Para 13 The village of K shall be enjoyed by N as stated in para A nephew s son was adopted and he instituted a suit against G after N s death for recovery of the village K contending that under para 13 of the will there was no disposition of the village after the life interest of N and on her death the village vested in him as the testator s heir Held on a construction of the will as a whole that the teststor did not intend that in the contingency of the adoption of nephew s son the village K should pass on N s death to the adopted son on the other hand the provisions of para 5 of the will were intended to apply even in the case of such a contingency and the village passed to G on N s death under para 5 of the will Judgment of the High Court of Madras reversed Venkatanarasimha vs Parthasarathy 41 IA 51 and Re Edward Jones vs Jones referred to

ion No 95 of 1959 Petition under Article 32 of the Constitution for enforcement of Fundamental Rights C K Daphtary Solicitor General of India and B R L Iyengar for the petitioners H N Sanyal Additional Solicitor General of IndiaR Gopalakrishnan and T M Sen for respondents Nos 1 and 2 1959 November 6 The Judgment of Sinha CJ Imam Wanchoo and Das Gupta JJ was delivered by Wanchoo J Kapur J delivered a separate judgment WANCHOO J This petition under article 32 of the Constitution is a sequel to Writ Petition No 75 of 1959 which is also being disposed of today It is not necessary therefore to set out the early history leading to 133 this petition as that has already been given in the judgment in Petition No 75 Suffice it to say that the petitioners who are the same as the petitioners in Petition No 75 were transport operators in the Anekal pocket in the State of Mysore They held stage carriage permits for various routes which were expiring on March 31 1958 They were granted renewal of these permits up to March 31 1959 In the meantime steps were taken to formulate an approved scheme under Chapter IV A of the No IV of 1939 hereinafter called the Act The scheme was finally approved and published on April 231959 In order however to avoid inconvenience to the public temporary permits were granted to the petitioners after March 31 1959 for a period of four months or up to the time the Mysore Government Road Transport Department hereinafter called the Department was granted permits under section 68F whichever was earlier Sometime before June 23 1959 the Department applied for permits in accordance with the scheme while the petitioners had applied for renewal of their permits The Regional Transport Authority Bangalore hereinafter called the Authority issued permits to the Department and rejected the renewal applications of the petitioners on June 23 1959 The petitioners then applied to the High Court of Mysore by a writ petition challenging the issue of permits to the Department and the refusal of renewal to them This petition was disposed of by the High Court on July 14 1959 and it was held that the grant of permits to the Department was invalid and the rejection of the renewal applications of the petitioners was incorrect but the High Court dismissed this petition on the ground that the relief to which the petitioners were entitled in view of these findings would be shortlived The petitioners then applied for a certificate to enable them to appeal to this Court and that application is still pending The present petition was filed on August 3 1959 The first contention of the petitioners in this petition is that after the scheme had been approved and published under Chapter IV A of the Act it was the 134 duty of the Department to apply under section 68F for all the routes covered by the scheme and it was only when the Department applied for all the routes that it would be open to the Authority to reject the applications for renewal made by the petitioners The Department in this case applied only for some of the routes and in particular it was pointed out that there was no application at any rate for one out of the fourteen routes included in the scheme Therefore it is submitted that the Department by picking and choosing which route to apply for and which to leave out was discriminating against those operators for whose routes it applied for permits and in favour of those operators for whose routes it did not apply for permits Further the Authority by granting permits to the Department in such circumstances was denying equality before the law to the petitioners This was an infringement of article 14 of the Constitution and also contravened the petitioner s right to carry on business guaranteed under article 19 1g Secondly the petitioners contended that the Authority could not issue permits in this case as section 572 and 3 was not complied with The petitioners therefore prayed for a direction quashing the order of the Authority issuing permits to the Department under section 68F and refusing their renewal applications The petition has been opposed by the Department and its contention is that even though an approved scheme might cover a number of routes it was open to the Department to implement it in stages and that it was the best judge as to which route should be taken over first and there could be no discrimination so long as the holders of the stage carriage permits operating on a particular route were treated equally inter se in pursuance of the approved scheme It is also urged that sub sections 2 and 3 of section 57 do not apply to applications for issue of permits made under section 68F1 We shall begin by examining the second contention Section 68F lays down that where in pursuance of an approved scheme any State Transport Undertaking applies in the manner specified in Chapter IV for a stage carriage permit etc in respect of a notified area 135 or a notified route the Regional Transport Authority shall issue such permit to the Undertaking notwithstanding anything to the contrary contained in Chapter IV Clearly therefore the Undertaking has to apply for permits in the manner provided in Chapter IV even though the Regional Transport Authority may be bound on such application to issue the permits This takes us to section 45 which lays down to which authority the application shall be made and then to section 46 which lays down the particulars which the application must contain Thus the Undertaking must comply with the terms of sections 45 and 46 when it applies for permits Then comes section 572 which lays down that an application for a stage carriage permit with which we are concerned in this case shall be made not less than six weeks before the date on which it is desired that the permit shall take effect or if the Regional Transport Authority appoints dates for the receipt of such applications on such dates In this case the Regional Transport Authority had appointed no date and clearly therefore the Undertaking should have applied not less than six weeks before the date on which it desired to start the service This is necessary to give time to the Regional Transport Authority to deal with the matter and if necessary to inform those who might be affected under section 68F 2 to be prepared for the change That is why section 68F 1 provided that the applications shall be made in the manner provided in Chapter IV This provision has nothing to do with the publication required under section 573 which is meant for a different purpose It was urged by the learned Solicitor General that the procedure provided in section 573 also applies as it is not inconsistent with the provisions of Chapter IV A see section 68B We consider it unnecessary to go into this matter for it is not disputed that the applications for permits in this case were not made at least six weeks before the date from which the permits were to take effect In the circumstances the applications being not in the manner provided in Chapter IV and being actually in breach of section 57 2 no permits could be issued on such applications Therefore the orders in favour of the 136 Department issuing permits to it are liable to be quashed on this ground alone In view of the above decision it is really not necessary for us to decide the first contention We would however like to point out the dangers inherent in the claim put forward by the Department A scheme is prepared under section 68C It is initiated by the Undertaking when it is of opinion that for the purpose of providing an efficient adequate economical and properly coordinated road transport services it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the Undertaking whether to the exclusion complete or partial of other persons or otherwise This section thus gives power to the Undertaking to prepare a scheme in relation to an area or route or portion thereof The Undertaking is thus not bound to prepare a scheme for the whole State at one time it has been given the power to choose particular types of services or a particular area or particular routes or even portions thereof for the reason that it may not be possible for the Undertaking to run services all over the State at the same time Thus when the Undertaking decides to frame a scheme it must take into account its resources in men material and money and frame a scheme only to the extent to which it can carry it out in full For example if it can carry out the scheme for the whole State at once it may frame a scheme for the whole State But if it cannot do so it can frame a scheme for one district Even if that is not within its resources it can frame a scheme for a part of a district Even in a part of the district its scheme may deal with certain routes and not all So long as it can show that the scheme is an efficient adequate economical and properly coordinated scheme for road transport service it will have a right to frame a scheme for only a part of the transport services running in a State Therefore the scheme to be framed must be such as is capable of being carried out all at once and that is why the Undertaking has been given the power to frame a 137 scheme for an area or route or even a portion thereof Further after the scheme is framed it is approved and published by the State Government Thereafter it is the duty of the Undertaking to carry out the scheme and in pursuance of that it applies for permits under section 68F1 If the Undertaking at that stage has the power to carry it out piecemeal it would be possible for it to abuse the power of implementation and to discriminate against some operators and in favour of others included in the scheme and also to break up the integrity of the scheme and in a sense modify it against the terms of section 68E There is no difficulty for the Undertaking to apply for permits relating to the entire scheme at the same time for the manner in which the scheme is prepared under section 68C takes into account all the difficulties which might arise in the implementation of the scheme and with that very object provides for taking over particular types of transport services in relation to areas or routes or even portions thereof We need not however pursue the matter further on this occasion Before we go to the other point raised in this petition we should like briefly to refer to a feature of the scheme which has been brought to our notice This feature is that though the scheme mentions fourteen routes with their terminii and intermediate points and the length of the routes there is a parrot like repetition of the words or any portion thereof in all the fourteen routes We should like to point out that it is the duty of the Undertaking when it prepares a scheme under section 68C to decide whether it will take up a whole route or a portion thereof If it decides to take a portion of the route provided however conditions of efficiency adequacy economy and proper co ordination are fulfilled it should specify that portion only in the scheme section 68C does not contemplate that the routes should be specified in the manner in which they have been specified in this case as for example Bangalore to Anekal or any portion thereof If the intention was not to operate on the whole Bangalore Anekal route but only a portion of it that portion should have been specified 18 138 as the route However in this particular case we are of opinion that the intention clearly was to take over the whole route in the case of all the fourteen routes which will be clear from the length of the route to be taken over mentioned in the schedule to the scheme Therefore the words or any portion thereof which have been repeated as if they were some kind of charm throughout the schedule are surplusage in view of the length specified and may be ignored and the scheme taken to apply to the entire length of the fourteen routes The next question is about the order to be passed in this case The contention on behalf of the Department is that as the petitioners had applied to the High Court and their petition was dismissed and the application for a certificate to appeal to this Court is pending before the High Court this Court should dismiss the present petition and direct the petitioners to come either on a certificate granted by the High Court or by a special leave application in case the High Court refuses the certificate We do not think it necessary in this case to decide this general question in view of certain special features of the present case It is true that the writ petition by the petitioners was dismissed by the High Court but the judgment of the High Court shows that it was of opinion that the applications under section 68F should have complied with section 57 2 of the Act and should thus have been made at least six weeks before the date from which the scheme was to be implemented On that view the High Court held that the issue of permits to the Department was not according to law It also held in consequence that refusal of the renewal to the petitioners was illegal but it refused to pass an order in favour of the petitioners on the ground that the relief granted to them would be short lived In effect therefore the judgment of the High Court was in favour of the petitioners and not against them though in form the writ petition was dismissed In these circumstances we are of opinion that as the petitioners fundamental right to carry on business is certainly involved in this case we should not refuse relief to the 139 petitioners on the ground that their writ petition was dismissed by the High Court and they have not yet been able to obtain a certificate permitting them to appeal to this Court There are two prayers in the present petition 1 that the proceedings of the Authority issuing permits to the Department be quashed and 2 that the proceedings rejecting the renewal applications of the petitioners be also quashed We see no reason why we should not grant the first prayer and quash the issue of permits to the Department by the Authority on June 23 1959 Our attention in this connection was drawn to K N Guruswamy vs The State of Mysore and Others1 In that case this Court after declaring the law in favour of the petitioner did not issue a writ as there was hardly a fortnight left for the excise contract which was involved in that case to expire and the issue of a writ would have been meaningless and ineffective That case however is distinguishable because the contract there would have come to an end within a few days In the present case there is no reason to assume that the six weeks period which is the minimum period prescribed under section 57 2 is the only period that will be required for implementation of the scheme under section 68F1 In these circumstances we are of opinion that the prayer for quashing the permits granted to the Department on June 23 1959 should be allowed As for the other prayer for quashing the order rejecting the renewal applications of the petitioners it is now unnecessary in view of our decision in Petitions Nos 54 and 75 of 1959 We therefore allow the petition and quash the order issuing permits to the Department We order parties to bear their own costs of this petition taking into account that Petition No 117 of 1959 filed by the petitioners with respect to the validity of the scheme has been withdrawn by them at a late stage and we have directed parties to bear their own costs of that petition also KAPUR J I have read the judgment prepared by my learned brother Wanchoo J but I respectfully 1 140 dissent from the opinion therein given I shall proceed to give my reasons for the dissent It is not necessary to restate the facts which are set out in detail in the proposed judgment but reference may be made to certain dates On August 28 1958 the proposed scheme under Chapter IV A of the as amended by Act 100 of 1956 which for the sake of convenience will hereinafter be termed the Act was published as a draft scheme It was approved on October 24 1958 but on its being challenged in the High Court of Mysore it was quashed on December 3 1958 A fresh draft scheme was published on January 22 1959 and after the Chief Minister had heard objections against it it was approved on April 15 1959 and was published on April 23 1959 The fresh scheme was also challenged in the High Court of Mysore in Civil Writ Petition No 315 of 1959 but this petition was dismissed on June 1 1959 The Regional Transport Authority on the application of the Mysore Government Road Transport Department hereinafter termed the Department issued in favour of the Department permits on June 23 1959 and rejected the application of the other operators the petitioners This order was challenged in the High Court by Civil Writ Petition No 463 of 1959 on June 24 1959 On July 14 1959 the High Court although it found in favour of the petitioners practically on all points did not grant any relief and dismissed the petition on the ground that the effectiveness of the relief will be for a short period of six weeks at the most but in the order it was stated that the permits granted to the Department were invalid as they had not applied for in the manner provided in section 57 of the Act and also that the Regional Transport Authority had been careless in the exercise of its powers Against this decision the peti tioners applied to the High Court for a certificate for appeal to this Court but the matter is still pending in the High Court In the meanwhile the petitioners filed this petition in this Court under article 32 The core of the question is what is the consequence of the framing of the scheme under Chapter IV A 141 and how it is to be implemented The petitioners contended that on a proper construction of sections 68C and 68F the scheme as approved must be implemented as a whole simultaneously or not at all The submission of the Department on the other hand is two fold 1 that in the very nature of things it must be left open to the Department to implement the scheme in reasonably convenient stages and 2 if the Department has applied for and obtained permits for certain routes in the scheme and has substantially implemented that scheme the implemented portion of the scheme cannot be set aside The decision of these rival contentions would turn on the interpretation of the various sections in Chapter IV A This Chapter contains special provisions relating to State Transport Undertaking and was inserted in the Act by section 62 of Act 100 of 1956 Section 68A contains definitions 68B gives overriding effect to this Chapter qua Chapter IV Section 68C deals with preparation and publication of the scheme of road transport services of the State Transport Undertaking Section 68D provides for objections to be filed against a proposed scheme 68E to the consequences of cancellation or modification of the scheme Then comes section 68F which provides for the issue of permits to State Transport Undertakings Section 68G provides for the method of determining of compensation in case of State Transport taking over 68H for payment of compensation and 681 gives power to make rules We were informed by Mr Sanyal that rules have been framed under this section The relevant portion of section 68C is as follows Where any State transport undertaking is of opinion that for the purpose of providing an efficient adequate economical and properly coordinated road transport service it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State transport undertaking whether to the exclusion complete or partial of other persons or otherwise the State transport undertaking 142 may prepare a scheme giving particulars of the nature of the services proposed to be rendered the area or route proposed to be covered Section 68F1 provides Where in pursuance of an approved scheme any State transport undertaking applies in the manner specified in Chapter IV for a stage carriage permit or a public carrier s permit or a contract carriage in respect of a notified area or notified route the Regional Transport Authority shall issue such permit to the State Transport undertaking not withstanding anything to the contrary contained in Chapter IV It was contended that the State Transport Undertaking to be termed the Undertaking can propose a scheme only when the conditions in section 68C are fulfilled that is for the purpose of providing efficient adequate economical and properly coordinated road transport services The argument is that all these conditions are a sine qua non of the scheme being proposed and if for any reason the Undertaking is unable to put the whole scheme into effect all at once then it should modify the scheme under section 68E and implement this modified scheme No doubt the words adequate economical and coordinated are used in the section but they must be read in the context The words of the section require that when the Undertaking is of the opinion that for the objects therein mentioned the services on any route or in any area should be operated by it it may prepare a scheme All that the section requires is that the Undertaking must be of that opinion when it prepares the scheme The scheme has to contain particulars of the services proposed to be rendered the areas or routes to be covered It was next submitted that the language of section 68F further supports the contention that if the approved scheme is to be implemented it must be implemented all at once or not at all and emphasis was laid on the words in pursuance of and permit in respect of a notified area or notified route These words in my opinion do not necessarily lead 143 to that conclusion Before the scheme is proposed the Undertaking is to be of a certain opinion and when it is to be in operation the Undertaking has to proceed in a manner prescribed in the section But it cannot be said that when the scheme is implemented the whole thing is to be done in a rigid manner Some flexibility and practicability in effectuating the scheme must necessarily be implied because of the implications financial and others of the scheme itself It may happen that at the time of the implementation it is discovered that the scheme cannot be put into effect all at once because of a natural calamity or of some unforeseen circumstance beyond the control of the State Transport Undertaking If the contention of the petitioners is correct then it would mean that the whole scheme must be scrapped and a new scheme prepared and approved with its consequential delays In this manner the policy of nationalisation which is the State policy in India would be indefinitely put off because in the meanwhile all kinds of interests may come into existence and circumstances may supervene which may delay if not obstruct the State in its policy of nationalisation The use of the words in pursuance of in section 68F only means that applications are made to give effect to the scheme or in execution of the scheme These words import a notion of obligation and are more restrictive than the phrase by reason of which is permissive Bradford Corporation vs Myers 1 where Lord Buckmaster in construing these word said It is because the act is one which is either an act in the direct execution of a statute or in the discharge of a public duty or the exercise of a public authority Therefore the mere use of the words in pursuance of cannot mean that the whole scheme has to be put into operation and not a portion of it 1 at p 247 144 The second argument raised in support of the contention that the scheme has to be implemented as a whole and all at once is the use of the words applies in the manner specified in Chapter IV for a stage carriage permit in respect of a notified area or notified route Chapter IV deals with the control of transport vehicles Section 46 deals with applications for such stage carriage permits and requires the following particulars to be set out in the applications the route or routes or the area or areas for which the application is made the number of vehicles proposed to operate in relation to each route or area the minimum and maximum number of daily services pro posed to be provided in relation to each route the number of vehicles to be kept in reserve the arrangements to be made for housing and repair of vehicles and for the comfort and convenience of passengers and such other matters as may be prescribed This section also applies to applications made under 68F It means therefore that if the area is extensive or the number of routes which a State Undertaking wishes to take over is large a number of applications will have to be made if all these particulars have to be properly given If the contention of the petitioners is correct then all applications under section 46 will have to be made at one and the same time and there is no reason to make allowances for mistakes or accidental omissions If accidental omissions are to be excused there is no reason to exclude omission due to unforeseen circumstances eg some vehicle being found unusable some repair shops not being completed in time or some natural calamity making it impossible to start operations on a particular route If the State cannot take over those routes for which applications can immediately be made then it would mean that taking over would become not only difficult but extremely expensive because as I have said before other interests may come in which it may not be possible for the State to take over Therefore if the State Undertaking intends to run a scheme within a reason able time then there is no reason why the State should not apply for different routes within reasonable time 145 so long as it acts honestly fairly and without oblique motives The third argument on behalf of the respondents was that if the State Undertaking has implemented the scheme in regard to certain routes and has actually started work on those routes after having obtained permits that portion of the implemented scheme should not be quashed because it would mean that the stage carriages of the State Undertaking will be taken off and somebody else will have to be given the permits at once or the people will have to go without road transport which cannot be the intention of the Act If the policy of the State is nationalisation then such an order will not only delay but obstruct and thwart that policy In my opinion therefore it is not the intention of the legislature in sections 68C and 68F that the whole scheme must be put into operation all at once or not at all The question then arises as to what should be the order in the instant case The High Court has indicated in its order that the applications made on behalf of the State Undertaking were not in accordance with section 57 of the Act and the learned Additional Solicitor General informed us that the State Undertaking had accepted that view of the law and proceedd to make applications in accordance with section 57 and other relevant provisions of Chapter 1V In that view of the matter in my opinion it is not necessary to pass a formal order quashing the permits granted in favour of the State Undertaking The case is very much like K N Guruswamy vs The State of Mysore Ors1 In this view of the matter and in view of the opinion I have given in Petitions Nos 54 75 76 1 am of the view that this petition should be dismissed but the parties should bear their own costs ORDER OF COURT In accordance with the opinion of the majority we allow the petition and quash the order issuing permits 1 19 146 to the Department We order parties to bear their own costs of this petition taking into account that Petition No 117 of 1959 filed by the petitioners with respect to the validity of the scheme has been with drawn by them at a late stage and we have directed parties to bear their own costs of that petition also

As a general rule a person cannot transfer or otherwise confer a better title on another than he himself has and a mortgagee cannot therefore create an interest in mortgaged property which will enure beyond the termination of his interest as mortgagee Further a mortgagee cannot during the subsistence of the mortgage act in a manner detri mental to the mortgagor s interests such as by giving a lease which may enable the tenant to acquire permanent occupancy rights in the land thereby defeating the mortga gor s right to khas possession A permissible settlement by a mortgagee in possession with a tenant in the course of prudent management and the springing up of rights in the tenant conferred or created by statute based on the nature of the land and possession for the requisite period is an exception to the general rule but to fall within this exception the settlement of the tenant by the mortgagee must have been a bona fide one The exception will not apply in a case where the terms of the mortgage prohibit the mortgagee from making any settle ment of tenants on the land either expressly or by necessary implication Where a zuripeshgi ijara deed contained the following clause It is desired that the ijaradars should enter into possession and occupation of the share let out in ijara being the kkudkasht land under his own cultivation culti vate them pay 2 as as reserved rent year after year to us the executants and appropriate the produce thereof year after year on account of his having the ijara interest and the kabuliat executed by the tenant to whom the lands were leased by the mortgagee for a period of 3 years referred to the ijara deed and contained an express provision that he the tenant would give up possession of the tika land on the expiry of the lease without urging any claim on the score that the lands were his kasht lands Held confirming the decision of the High Court that the settlement was not a bona fide one and the successors of the tenant the de fendants did not acquire permanent rights of occupancy in 101 776 the demised lands under the Bihar Tenancy Act even though the lands had been in the occupation of the tenant and his successors for over 30 years after the expiry of the lease Held further that the defendants could not acquire occupancy rights under sections 20 and 21 of the Bihar Tenancy Act as the mortgagee was neither a proprietor nor a tenure holder or under tenure holder and the tenant and his successors were not therefore settled raiyats within the meaning of section 5 cl 2 of the said Act Manjhil Lal Biswanath Shah Deo vs Shaikh Mohiuddin ILR Babu Bairo Nath Ray vs Shanke Pahan ILR 8 Pat 31 and Binda Lal Pakrashi and Others vs Kalu Pramanik and Others ILR distinguished

ION Criminal Appeals Nos 100 to 105 and 124 to 129 of 1954 Appeals from the judgment and order dated August 2 1954 of the Punjab High Court in Criminal Appeals Nos 112 of 49 333382 383 and 410 of 1950 and 241 of 1951 arising out of the judgment and order dated June 26 1950 of the Punjab Special Tribunal WITH Petition No 31 of 1952 Petition under Article 32 of the Constitution of India for enforcement of Fundamental rights Harnam Singh Hardyal Hardy and P C Aggarwala for the appellant in Cr 100 to 105 of 1954 Petition No 31 of 52 and Respondent in Cr 124 to 129 of 1954 C K Daphtary Solicitor General of India Kartar Singh Chawla T M Sen and D Gupta for the appellant in Cr 100 to 105 of 1954 and Petition No 31 of 1952 and Appellant in Cr 124 to 129 of 1954 October 28 The judgment of Sinha CJ Imam Wanchoo and Das Gupta JJ was delivered by Imam J Kapur J delivered a separate judgment Imam J IMAM J These appeals are on a certificate granted by the Punjab High Court and they have been heard 93 together as they rise out of a single judgment of the High Court In Criminal Appeals Nos 100 to 105 of 1954 Satwant Singh is the appellant and in Criminal Appeals Nos 124 to 129 of 1954 the State of Punjab is the appellant Although in these appeals only questions of law have been urged it is necessary to set out briefly some of the facts which led to the prosecution and conviction of Satwant Singh As a result of the Japanese invasion of Burma in 1942 the Government of Burma and the Allied forces stationed there were compelled to leave that country In connection with the evacuation from Burma and the defence of that country the Government of Burma and the army had to execute certain works such as the construction of roads repairs and construction of bridges strengthening and repairing of old tracks and converting railway lines into motor roads Some of these works were executed by the army and some were entrusted to contractors After evacuation of Burma its Government was located at Simla In August 1942 the Government of Burma advertised inviting claims from contractors who had executed works or had supplied materials in Burma and had not yet been paid Satwant Singh had worked as a contractor in Burma He at first submitted a claim for a sum of a little over Rs 18000 Later on he put in further claims the total amount of which ran into several lakhs of rupees These claims were sent by the Government of Burma to Major Henderson at Jhansi in March and May 1943 for verification as he was the officer who had knowledge of these matters This officer certified many of these claims to be correct and sent the papers back to Simla He did not pass one claim because it was within the knowledge of another officer Mr Nasa On the certification of the claims by Henderson the Finance Department of the Government of Burma sanctioned the same and the Controller of the Military Claims at Kolhapur was directed to pay the amounts sanctioned On the request of Satwant Singh cheques drawn on the Imperial Bank of India at Lahore were posted to him from Kolhapur and these cheques were 94 encashed at Lahore In all Satwant Singh was paid Rs 744865 12 0 Subsequently suspicions of the Government of Burma were aroused concerning the many cliams made on it and it was discovered that many of them including some of those of Satwant Singh were false A police investigation followed which revealed that a large number of claims made by various persons including Satwant Singh in respect of works done for the benefit of the army were false Satwant Singh was arrested on the 12th of April 1944 at Ambala and was taken to Lahore He had also submitted a claim in the name of his wife Surjit who was also arrested Henderson was arrested at lmphal and brought to Lahore for interrogation According to the prosecution Satwant Singh had committed the offence of cheating punishable under section 420 Indian Penal Code and Henderson had abetted him in the commission of that offence by falsely certifying Satwant Singh s claims to be true knowing that they were false and thereby had committed an offence punishable under section 420109 Indian Penal Code Satwant Singh having expressed a desire to make a confession his confession was recorded by a First Class Magistrate on the 9th of May 1944 There being many cases of acceptance of bribe and criminal breach of trust by public servants and cheating of Government by certain persons and cases similar to that of Satwant Singh Ordinance No XXIX of 1943 hereinafter referred to as the Ordinance for trial of such cases was promulgated by the Governor General of India in 1943 Subsequently this Ordinance was amended by Ordinance XII of 1945 By virtue of a notification issued under the Ordinance as amended the case of Satwant Singh was allotted to the Third Special Tribunal at Lahore for trial with Henderson as his co accused After the partition the trial by the Special Tribunal took place at Simla Henderson had absconded to England and extradition proceedings had to be taken against him under the Fugitive Offender s Act of 1881 He was brought 95 before the Special Tribunal in December 1949 In the meantime Satwant Singh s case was separated and the trial against him alone continued On Henderson s return the trial once again became a joint trial Henderson applied for examination of certain witnesses on commission in England His prayer was granted Satwant Singh fearing that the trial of the cases against him would be delayed requested that his cases be separated from the cases against Henderson This prayer was allowed and his trials proceeded against him as the sole accused except in the trial of Cases Nos 54 55 and 56 in which Henderson was a coaccused with him The Special Tribunal imposed sentences of imprisonment ranging from one year to three and a half years in the several trials In addition it imposed fines of various amounts It divided the fines into ordinary and compulsory the latter by virtue of section 10 of the Ordinance In default of payment of the ordinary fines it directed the appellant to undergo further imprisonment for certain periods There was no such direction with respect to the compulsory fines The High Court reduced the sentence of imprisonment to two years in all the trials where such sentence was in excess of that period The sentences of imprisonment in all the trials were to run concurrently The High Court maintained the sentence of ordinary fines imposed by the Special Tribunal but set aside the sentence of compulsory fines The State had filed a petition before the High Court for the enhancement of the sentences of fine passed against Satwant Singh which was dismissed on the ground that the compulsory fines imposed were invalid in view of the decisions of this Court in the case of Rao Shiv Bahadur Singh and Another vs The State of Vindhya Pradesh 1 and the case of Kedar Nath Bajoria vs The State of West Bengal 2 In the opinion of the High Court enhancement of sentences of fine would be a method by which the provisions of article 20 of the Constitution would be circumvented 1 2 96 Satwant Singh has appealed against his conviction and sentence as ordered by the High Court The State of Punjab has also appealed against the decision of the High Court that the compulsory fines imposed were illegal The State also has made a prayer that the ordinary fines imposed upon Satwant Singh may be enhanced On behalf of the appellant his conviction was challenged on several points of law Firstly it was urged that the provisions of section 188 of the Code of Criminal Procedure had not been complied with The charge framed against the appellant stated that he had committed the offence of cheating at Simla and Kolhapur Kolhapur was a place outside British India at the relevant time In the present case there was neither a certificate of the Political Agent nor a sanction of the Provincial Government as required under section 188 of the Code of Criminal Procedure The facts established that the offence of cheating was committed at Kolhapur and therefore it could not be inquired into in British India without such a certificate or such sanction The trial of the appellant therefore was without jurisdiction Secondly it was urged that the appellant committed the offence at Kolhapur and Henderson at Jhansi They could not be tried together in a single trial by the Special Tribunal at Simla as neither section 179 nor section 180 of the Code of Criminal Procedure applied to the facts of the case and in view of the provisions of section 188 of the Code Thirdly it was submitted that sections 233 to 239 of the Code of Criminal Procedure deal with joinder of charges and joinder of persons in a trial Sections 234 and 239 of the Code could not be combined to try the appellant and Henderson in a single trial for 3 offenses of cheating by the former and 3 offenses of abetment thereof by the latter Section 239 of the Code was a self contained provision and had to be read without bringing into aid the provisions of section 234 Fourthly it was pointed out that as no sanction under section 197 of the Code by the proper authority had been given for the prosecution of Henderson he could not be tried without such a sanction Joint trial of Henderson and the 97 appellant without such a sanction vitiated the trial Fifthly it was submitted that as Burma was not a Dominion of His Majesty s Government in 1943 the Ordinance did not apply In the course of the argument the fifth submission was abandoned and we think rightly It would be convenient to deal together with the first and the fourth submissions regarding the noncompliance with the provisions of sections 188 and 197 of the Code of Criminal Procedure Before the provisions of section 188 can apply it must be established that the offence for which the appellant was charged was committed outside British India The appellant was charged with the offence of cheating He had filed certain claims before the Government of Burma at Simla Those claims were certified as true by Henderson at Jhansi The claims of the appellant were found to be untrue In fact he was not entitled to any payment in respect of these claims The misrepresentation by Satwant Singh was at Simla and the false certification of the claims as true by Henderson was at Jhansi Simla and Jhansi were places in British India As the result of the misrepresentation by the appellant and the false certification by Henderson the Government of Burma was induced thereby to make the payment of a large sum of money to the appellant at Lahore The payment at Lahore to the appellant was made at his own request by cheques on the Imperial Bank of India at its Lahore Branch Lahore was also a place at the relevant time in British India It is true that in the charge framed Kolhapur was mentioned as one of the places where the cheating had taken place In our opinion it was an error in the charge as framed to have mentioned that any offence of cheating took place at Kolhapur That error in the charge however was a mere irregularity on a misunderstanding of the facts which could not vitiate the trial It was however urged that as the cheques in favour of the appellant were posted at Kolhapur in law the payment to the appellant had been made in Kolhapur and delivery of property namely the cheques which must be regarded as 13 98 valuable security was made at Kolhapur The offence of cheating therefore was committed at Kolhapur and neither at Simla nor at Lahore In our opinion this submission is misconceived The posting of the cheques at Kolhapur cannot be regarded as delivery of the cheques to the appellant at Kolhapur because the Post Office at that place could not be treated in the circumstances of the present case as the agent of the appellant to whom the delivery of the cheques bad been made In fact they were not delivered to the appellant at Kolhapur but were delivered to him at Lahore As regards the place of payment it was urged that when the cheques were issued and posted at Kolhapur the payment to the appellant must be regarded as having been made at Kolhapur Reliance was placed on The Commissioner of Income Tax Bombay South Bombay vs Messrs Ogale Glass Works Ltd Ogale Wadi 1 That case was considered by this Court in the case of The Commissioner of Income Tax Bihar Orissa vs Messrs Patney Codecided on the 5th of May 1959 and it was held that the rule in the Ogale Glass Works case 1 was inapplicable to the facts of the case In the latter case it was found by this Court that Whatever may be the position when there is an express or implied request for the cheque for the amount being sent by post or when it can be inferred from the course of conduct of the parties the appellant in this case expressly required the amount of the commission to be paid at Secunderabad and the rule of Ogale Glass Works case 1would be inapplicable In the present case an inquiry was made from the appellant how he would like the payment to be made and he replied that cheques payable at the Imperial Bank of India Lahore Branch should be sent to him Accordingly cheques on the Imperial Bank of India Lahore Branch were sent to the appellant by post in Lahore and the appellant encashed them there In these circumstances the rule in Ogale Glass Works case 1 is inapplicable and it must be held that the payment was 1 2 99 made to the appellant at Lahore and not at Kolhapur where the cheques had been posted Furthermore what may be relevant for consideration as to the place of payment for the purpose of the Income Tax Act may not necessarily be relevant for the purposes of a criminal case in which the Courts have to ascertain where the offence of cheating was committed It seems to us on the facts established in this case that no part of the offence of cheating was committed by the appellant outside British India His false repre sentation to the Government of Burma that money was due to him was at a place in British India which induced that Government to order payment of his claims In fact he was paid at Lahore at his own request by means of cheques on the Branch of the Imperial Bank of India at Lahore The delivery of the property of the Government of Burma namely the money was made at Lahore a place in British India and we cannot regard in the circumstances of the present case the posting of the cheques at Kolhapur either as delivery of property to the appellant at Kolhapur or payment of his claims at Kolhapur The entire argument founded on the provisions of section 188 of the Code therefore fails As the offence committed by the appellant was not at a place beyond British India there was no need for the existence of a certificate of a Political Agent or in the absence of such a person a sanction of the Provincial Government Coming to the question whether the absence of a sanction under section 197 of the Code vitiated the trial it has to be established that Henderson was a public servant removable by the Governor General in Councll or the Provincial Government As no objection had been taken before the Special Tribunal by the appellant in this respect it was urged by the Solicitor General that the prosecution had no opportunity of establishing that Henderson though a public servant was a person not removable by the Governor General in Council or the Provincial Government On the other hand it was urged by Mr Harnam Singh that in the High Court the objection had been taken but it had been overruled on the ground that there was in fact a 100 sanction in existence The High Court was under a misapprehension The sanction which was in existence was under section 270 of the Government of India Act 1935 which is given by the Governor General himself where as the sanction under section 197 of the Code is given by the Governor General in Council The sanction under section 270 of the Government of India Act 1935 could not therefore be treated as a sanction under section 197 of the Code In the High Court apparently no submission was made that Henderson was not a public servant removable by the Governor General in Council or the Provincial Government If it is being urged now that Henderson was not such a person then the appellant should be given an opportunity to show that he was a public servant so removable It is unnecessary to deal with these submissions which relate to a question of fact in view of our conclusion as mentioned below with respect to the applicability of the provisions of section 197 of the Code in the present case Under section 197 no Court shall take cognizance of an offence committed by a public servant who is removable from his office by the Governor General in Council or a Provincial Government save upon a sanction by one or the other as the case may be when such offence is committed by him while acting or purporting to act in the discharge of his official duty Henderson was charged with intentionally aiding the appellant in the commission of an offence punishable under section 420 of the Indian Penal Code by falsely stating as a fact in his reports that the appellants claims were true and that statement bad been made knowing all the while that the claims in question were false and fraudulent and that he had accordingly committed an offence under section 420109 Indian Penal Code It appears to us to be clear that some offences cannot by their very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of their official duty For instance acceptance of a bribe an offence punishable under section 161 of the Indian Penal Code is one of them and offence of cheating or abetment thereof is another We have no hesitation in saying that where a public 101 servant commits the offence of cheating or abets another so to cheat the offence committed by him is not one while he is acting or purporting to act in the discharge of his official duty as such offences have no necessary connection between them and the performance of the duties of a public servant the official status furnishing only the occasion or opportunity for the commission of the offences vide Amrik Singh s case 1 The Act of cheating or abetment thereof has no reasonable connection with the discharge of official duty The act must bear such relation to the duty that the public servant could lay a reasonable but not a pretended or fanciful claim that he did it in the course of the performance of his duty vide Matajog Dobey s case 2 It was urged however that in the present case the act of Henderson in certifying the appellant s claims as true was an official act because it was his duty either to certify or not to certify a claim as true and that if he falsely certified the claim as true he was acting or purporting to act in the discharge of his official duty It is however to be remembered that Henderson was not prosecuted for any offence concerning his act of certification He was prosecuted for abetting the appellant to cheat We are firmly of the opinion that Henderson s offence was not one committed by him while acting or purporting to act in the discharge of his official duty Such being the position the provisions of section 197 of the Code are inapplicable even if Henderson be regarded as a public servant who was removable from his office by the Governor General in Council or a Provincial Government Elaborate arguments were advanced in support of the contention that the provisions of section 197 of the Code were not inconsistent with the Ordinance and therefore had to be complied with before the Special Tribunal could try Henderson It was pointed out that under section 6 of the Ordinance the Special Tribunal was specifically authorized to take cognizance of an offence without the accused being committed to it for trial and sub section 2 of that section stated that Save 1 2 102 as provided in sub section 1 the Code of Criminal Procedure1898 V of 1898 except the provisions of section 196 A and of Chapter XXXIII shall so far as they are not inconsistent with this Ordinance apply to proceedings of a Special Tribunal and for the purposes of the said provisions the Special Tribunal shall be deemed to be a Court of Session trying cases without a jury and a person conducting a prosecution before a Special Tribunal shall be deemed to be a Public Prosecutor It was urged that by virtue of this sub section the provisions of the Code of Criminal Procedure would be applicable except the provisions of section 196 A and Chapter XXXIII which had been expressly excluded If section 197 of the Code was intended to be excluded the Ordinance would have said so Having regard to the view we take that the provisions of section 197 of the Code do not apply to the facts of the present case as the offence of abetment of cheating by Henderson cannot be regarded as an offence committed by him while acting or purporting to act in the discharge of his official duty it is unnecessary to consider the arguments advanced in this connection Coming now to the 2nd and 3rd submissions made on behalf of the appellant we have to consider whether the appellant and Henderson could at all be jointly tried having regard to the fact that they were jointly tried up to a certain stage in some of the trials and to the conclusion of the trial concerning cases Nos 5455 and 56 We have already held that no part of the offence of cheating was committed by the appellant outside British India and consequently the provisions of section 188 of the Code did not apply The provisions of sections 179 and 180 are wide enough to enable cognizance to be taken either by a Court where anything was done within the local limits of its jurisdiction or a court where the consequences ensued Illustration c to section 179 clearly states that if A is put in fear of injury within the local limits of the jurisdiction of Court Xand is thereby induced within the local limits of the jurisdiction of Court Y to deliver property to the person who put him in fear the offence of extortion committed against A may be inquired into or tried 103 either by X or Y The appellant could have been therefore tried either at Lahore or at Simla for the offence of cheating as the misrepresentation was atSimla and the consequence was at Lahore as the Government of Burma was induced by the misrepresentation to deliver property money at Lahore Under section 180 when an act is an offence by reason of its relation to any other act which is also an offence a charge of the first mentioned offence may be inquired into or tried by a Court within the local limits of whose jurisdiction either act was done Illustration a to this section states that a charge of abetment may be inquired into or tried either by the Court within the local limits of whose jurisdiction the abetment was committed or by the Court within the local limits of whose jurisdiction the offence abetted was committed The offence of cheating by the appellant could have been tried either at Lahore or at Simla Consequently Henderson could also have been tried for the abetment of that offence either at Lahore or at Simla The case of these accused was allotted to the Special Tribunal at Lahore and would have normally been tried there but for the partition of India The trial under the authority of law was concluded at Simla There seems therefore to have been no illegality committed in trying the appellant and Henderson together at Simla The other line of argument in support of the objection that the appellant and Henderson could not be tried together was based on the provisions of sections 233 and 239 of the Code It was pointed out that under the provisions of section 233 of the Code for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately except in the cases mentioned in sections 234 235 236 and 239 Unless therefore the joinder of trial of the appellant and Henderson was permitted under section 239 of the Code they could not be tried together It was urged that in construing section 239 of the Code it was not permissible to take into consideration the provisions of section 234 The only provision by which a person accused of an offence and a person accused 104 of abetment of that offence can be tried together in a single trial is under section 239b which permits persons accused of an offence and persons accused of abetment to be charged and tried together Under the terms of these provisions any number of persons accused of commuting a single offence could be tried together with any number of persons who had abetted that offence But cl b did not permit the trial of persons accused of several offences and persons accused of abetment of those offences in one trial and to try a person accused of three offences along with a person accused of abetment of those offences would be contrary to the provisions of cl If the provisions of section 239b and section 234 were combined the result would be to create another exception to be added to the exceptions stated in section 233 of the Code No Court had any authority to create a new exception to section 233 section 239 being an exception to section 233 its provisions had to be construed strictly The plain words of section 239b make it quite clear that persons who had committed a single offence and those who abetted it only could be tried together Since the appellant is said to have committed three offences of cheating and Henderson three offences of abetment thereof the provisions of section 239b did not apply and their trial together was vitiated It was further pointed out that if there had been misjoinder of trial in the present case it could not reasonably be said that the appellant had not been prejudiced If the appellant bad been tried apart from Henderson Henderson s confession and all the evidence against him would have been excluded at the trial of the appellant As the result of Henderson and the appellant being tried together all the evidence against Henderson and his confession must have necessarily adversely affected the case of the appellant On the other hand the Solicitor General submitted that the provisions of the Code of Criminal Procedure must be construed as they stand and reference to decided cases may be made to assist the court in the matter of construction if necessary The Code itself nowhere stated that sections 234 and 239 of the Code were mutually exclusive The entire scheme of joinder of 105 charges and joinder of persons in a single trial has been set out in the Code Although section 233 of the Code is clear enough it has expressly expected from the application of its provisions sections 234 235 236 and 239 Sections 234 235 236 and 239 are permissive sections They are not compelling sections That is to say although these sections permit joinder of charges and joinder of persons a Court may well consider it desirable in the interest of justice and having regard to the circumstances of a particular case that the charges framed should be split up and separate trials should take place in respect of them and the accused be tried separately It was to avoid multiplicity of trials harassment to the accused and waste of time that the permissive sections 234 235 236 and 239 enable a court within their terms to join charges and persons in a single trial Section 239 permitted joinder of charges and persons in a single trial in cases covered by cls a to g These clauses permitted the joinder of persons as accused in one trial and they contemplated the various circumstances in which such persons could be tried together Joinder of several persons in one trial necessarily involves the framing of more than one charge If the joinder of charges was within the terms of the section then the provisions of section 233 had no application Although in cl b of the section the words used are persons accused of an offence and persons accused of abetment or of an attempt to commit such offence a reasonable construction of these words could not lead to the conclusion that the words an offence meant a single offence because under section 13 of the General Clauses Act Central Act X of 1897 words in the singular shall include the plural and vice versa Under cl b therefore persons accused of several offences and persons accused of abetment thereof could be tried together in a single trial The concluding words of section 239 and the provisions contained in the former part of this Chapter shall so far as it may be apply to all such charges permitted a court to apply that part of Chapter XIX which preceded section 239S 234 was one such provision and a court could resort to its provisions so far as they were applicable 14 106 It was further pointed out by the Solicitor General that although the appellant was asked to specify the points of law upon which these appeals would be urged he did not state that in fact he had been pre judiced by a joint trial of himself and Henderson He also pointed out that as the result of the amendment of the Code of Criminal Procedure misjoinder of charges did not vitiate the trial unless the misjoinder had in fact occasioned failure of justice we now proceed to consider some of the provisions of Chapter XIX of the Code which deal with the form of charges and the joinder of charges as well as joinder of persons So far as the form of the charge is concerned the provisions of sections 221 to 232 of the Code would apply in any event where a single accused was being tried on a single or several charges or where several accused were tried for various offences at one trial within the terms of section 239 of the Code So far as joinder of charges is concerned section 233 clearly required that for every distinct offence of which any person was accused there must be a separate charge and every such charge must be tried separately The framers of the Code however realised that it would be impracticable to have for all circumstances such a rigid rule The section accordingly excepted from its provisions cases which were covered by sections 234 235 236 and 239 section 234 accordingly permitted a single accused to be tried at one trial for more offences than one of the same kind committed within the space of 12 months provided they did not exceed three in number section 235 went a step further It permitted an accused person to be tried for more offences than one committed by him and the framing of a charge with respect to every such offence provided that the series of acts were soconnected together as to from the same transaction It also permitted that if the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished the person accused of them may be charged with and tried at one trial foreach of such offences It also provided that if several acts of which one or more than one would by or them selves constitute an offence constitute when combined 107 a different offence the person accused of them may be charged with and tried at one trial for the offence constituted by such acts when combined and for any offence constituted by any one or more of such acts section 236 permitted the framing of alternative charges where a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute the accused may be charged with having committed all or any of such offences and any number of such charges may be tried at once By section 239 joinder of persons in a single trial is permitted in the circumstances mentioned in cls a to g At the trial of such persons charges would have to be framed Indeed the section commences with the following words The following persons may be charged and tried together Leaving cl b out for the moment the other clauses of the section clearly contemplate the framing of more than one charge against accused persons when tried together Under cl a persons accused of the same offence committed in the course of the same transaction can be tried together Under cl c persons accused of more than one offence of the same kind within the meaning of section 234 committed by them jointly within the period of 12 months can also be tried together Under cl d persons accused of different offences committed in the course of the same transaction can be tried together Similar is the position in cases mentioned in cls e f and It is clear therefore that the general rule that for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately has no application to these clauses Indeed section 233 contemplated that and expressly excluded the application of its provisions to section 239 The entire tenor of the provisions of section 239 indicates that several persons could be tried together for several offences committed in the circumstances mentioned therein There is no apparent reason why cl b should be construed in the way suggested by Mr Harnam Singh 108 according to whom in one trial any number of persons could be tried for a single offence along with any number of persons accused of abetment of that offence The argument was based on the words an offence in that clause and the suggestion was that these words meant a single offence Having regard to the providers of section 13 of the General Clauses Act the singular includes the plural and it would not be straining the language of the clause if the same was construed also to mean that persons accused of several offences and persons accused of abetment thereof could be tried together at one trial So construed framing of three charges under section 420 Indian Penal Code against Satwant Singh and three charges of abetment against Henderson in the same trial did not infringe the provisions of cl Furthermore the concluding words of the section make it clear that the provisions contained in the former part of Chapter XIX ie previous to section 239 as a far as may be shall apply to all charges framed at the trial It was suggested that the words the former part of this Chapter referred to sections 221 to 232 as Chapter XIX is in two parts the first part being the form of charges and the second part joinder of charges Although such headings do appeal in the Chapter it is to be noticed that Chapter X LX does not divide itself into several parts as is to be found in many of the Chapters of the Code eg in Chapter XXIII the parts are headed A to L It is further to be noticed that words similar to the concludingwords of section 239 do not appear in section 235 of the Code The reason for these words appearing in section 239 of theCode appears to be that this section permits persons to be charged and tried together The lode obviously contemplated that when charges were being framed against each of the several accused in the cases contemplated in section 239 not only the provisions concerning the form of charges but also the provisions concerning the joinder of charges as far as may be should apply In these appeals the appellant was charged in one trial for three offences of cheating and Henderson for abetment of the same If the appellant had been tried alone he could have been tried for three charges of cheating 109 committed within 12 months and Henderson in a separate trial could have been tried for three offences of abetment of the same offences committed within 12 months There is no good reason for thinking that when cl b of section 239 permitted the joinder of the appellant and Henderson in a single trial for the commission of the offence of cheating and abetment thereof the same was confined to one offence of cheating and one offence of abetment In our opinion the trial of the appellant and Henderson together on the charges as framed did not vitiate the trial It is unnecessary to deal with the last submission of the Solicitor General that the appellant had taken no ground that he had been prejudiced by his joint trial with Henderson because such a question does not arise having regard to the view we take that there was no misjoinder of trial On behalf of the appellant certain circumstances were urged in mitigation of the sentence It was pointed out that Henderson s sentence was reduced to 2 month s imprisonment and a small fine the proceedings against the appellant had been going oil since 1945 the appellant had already served some three months imprisonment and that there was also a substantial fine Accordingly it was prayed that the sentence of imprisonment may be reduced to the period already undergone while the sentence of ordinary fine may be maintained The measure of punishment must be commensurate with the nature and the seriousness of the crime The appellant had cheated the Government of Burma to the extent of something like 7 lakhs of rupees It is impossible to say that the sentence of imprisonment as reduced by the High Court was in any way excessive The fact that Henderson received a light punishment is not a relevant circumstance The prayer for a further reduction of the sentence cannot be acceded to The appeals filed by Satwant Singh are accordingly dismissed Criminal Appeals Nos 124 to 129 of 1954 In these appeals the State of Punjab has appealed against that part of the judgment of the High Court 110 which set aside the order of the Special Tribunal imposing what has been described as compulsory fines The High Court felt that it was bound by the decisions of this Court in the cases of Rao Shiv Bahadur Singh vs The State of Vindhya Pradesh and Kedar Nath Bajoria vs The State of West Bengal 2 It was urged by the Solicitor General that the Special Tribunal was in error in describing the fines imposed by it as ordinary and compulsory Section 10 of the Ordinance contemplated no such distinction What it did direct was whether or not a sentence of imprisonment was imposed by the Special Tribunal that a sentence of fine must be imposed and that fine shall not be less in amount than the amount of money or value of other property found to have been procured by the offender by means of the offence In other words the section imposed a minimum fine in any event whether a sentence of imprisonment was or was not imposed In the present case a sentence of imprisonment was in factimposed and the total of fines imposed whether described as ordinary or compulsory was not less than the amount of money procured by the appellant by means of his offence Under section 42O of the Indian Penal Code an unlimited amount of fine could be imposed Article 201 of the Constitution is in two parts The first part prohibits a conviction of any person for any offence except for violation of law in force at the time of the commission of the act charged as an offence The latter part of the Article prohibited the imposing of a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence The offence with which the appellant had been charged was cheating punishable under section 420 of the Indian Penal Code which was certainly a law in force at the time of the commission of the offence The sentence of imprisonment which was imposed upon the appellant was certainly not greater than that permitted by section 420 The sentence of fine 1 2 111 also was not greater than that which might have been inflicted under the law which had been in force at the time of the commission of the offence as a fine unlimited in extent could be imposed under the section It was further pointed out that at least Case No 58 out of which arose Criminal Appeal No 112 of 1949 in the High Court was one to which the provisions of article 20 could not apply as the conviction in that case was recorded on the 24th of January 1949 before the Constitution came into force Mr Harnam Singh on the other hand drew our attention to section 63 of the Indian Penal Code and submitted that a sentence of fine could at no time be excessive and therefore the sentence of fine which could be imposed under section 420 was not entirely unlimited as it could not be excessive In considering whether a fine would or would not be excessive various considerations had to be kept in mind including the seriousness of the offence and the means of the accused Section 63 of the Indian Penal Code expressly states that where no sum is expressed to which a fine may extend the amount of fine to which the offender is liable is unlimited Section 420 of the Indian Penal Code does not express a sum to which a fine may extend as some of the sections of the Indian Penal Code do As the section stands therefore the extent of fine which may be imposed by a Court under it is unlimited Whether a fine imposed in a particular case is excessive would be a question of fact in each case That consideration however is entirely irrelevant in considering whether article 20 of the Constitution has been contravened by the provisions of section 10 of the Ordinance as the extent of fine which can be imposed under section 420 by law is unlimited It cannot be said that section 10 of the Ordinance in imposing the minimum fine which a court shall inflict on a convicted person was a penalty greater than that which might have been inflicted on that person under the law in force at the time of the commission of the offence where under such law the extent of fine which could be imposed is unlimited 112 In the case of Rao Shiv Bahadur Singh 1 referred to above this Court held that article 20 of the Constitution must be taken to prohibit a conviction or subjection to penalty after the Constitution in respect of ex post facto law whether the same was a pre Constitutional law or a post Constitutional law The prohibition under the Article was not confined to the passing or the validity of the law but extended to the conviction or the sentence and was based on its character as ex post facto law and therefore fullest effect must be given to the actual words used in the Article It had been urged in that case that the Vindhya Pradesh Ordinance No XLVIII of 1949 was an ex post facto law This Court however held that Ordinance was not ail ex post facto law The contention that the provisions of article 20 of the Constitution had been contravened was rejected and it was held that the criminal law relating to offences charged against the accused at the time of their commission was substantially the same as obtained at the time of the conviction and sentence under the Indian Penal Code In Rao Shiv Bahadur Singh s case 1 this Court had not to consider whether an ex post facto law imposing a minimum fine for an offence with respect to which an unlimited fine could be imposed by the law in existence at the time of the commission of the offence contravened the provisions of article 20 In Kedar Nath Bajoria s case 2 in addition to the sentence imposed under the ordinary law the first appellant was fined Rs 50000 including the sum of Rs 47550 received by him as required by section 91 of the West Bengal Criminal Law Amendment Act of 1949 Reference to the decision in Rao Shiv Bahadur Singh s case1was made and this Court held that in any event the fine to the extent of Rs 47550 would be set aside This Court however did not decide whether the total fine imposed was greater than what could be imposed under the law as it was at the commission of the offence It assumed that Rao Shiv Bahadur Singh s case 1 supported the contention of the first appellant in that case It is significant that in directing that the appeal would be heard in due course on merits this Court stated that it would be open to the Court in case 1 2 113 the conviction was upheld to impose such appropriate fine as it thought fit in addition to the sentence of imprisonment In the present case even if it be assumed that section 10 of the Ordinance as an ex post facto law ill that in the matter of penalty a minimum sentence of fine was directed to be imposed by a court whereas at the time that the appellant committed the offence section 420 contained no such provision what is prohibited under article 20 of the Constitution is the imposition of a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence The total sentence of fine ordinary and compulsory in the present case cannot be said to be greater than that which might have been imposed upon the appellant under the law in force at the time of the commission of the offence because the fine which could have been imposed upon him under section 420 was unlimited A law which provides for a minimum sentence of fine on conviction cannot be read as one which imposes a greater penalty than that which might have been inflicted under the law at the time of the commission of the offence where for such an offence there was no limit as to the extent of fine which might be imposed Whether a fine was excessive or not would be a question of fact in each particular case but no such question can arise in a case where the law imposes a minimum sentence of fine Under article 20 of the Constitution all that has to be considered is whether the ex post facto law imposes a penalty greater than that which might be inflicted under the law in force at the time of the commission of the offence For the reasons already stated it cannot be said that section 10 of the Ordinance imposed any such penalty and therefore was in contravention of the provisions of article 20 These appeals are accordingly allowed and the order of the High Court setting aside the compulsory fines imposed by the Special Tribunal is set aside and the orders of the Special Tribunal imposing the compulsory fines are restored KAPUR J I have read the judgment prepared by my learned brother Imam J I agree to the order 15 114 proposed and the reasons therefor except that I would base the inapplicability of section 197 Criminal Procedure Code to the facts of the present case on different grounds The legislature in India has considered it necessary to provide a large measure of protection for public officials from unnecessary harassment and for that purpose section 197 was enacted in the Criminal Procedure Code and this was recognised by Lord Simonds in the Privy Council case Gill vs The King1 That this is the legislative policy may also be gathered from a subsequent enactment the Prevention of Corruption Act where such provision was incorporated in regard to offences of bribery corruption and also misapprehend privation But the question still remains to what cases this protection is made applicable The contention raised on behalf of the appellant was that his case was prejudiced because of a joint trial with Henderson who it is contended was a Major in the Indian Army and who was charged for abetting the offence of cheating committed by the appellants The argument raised was that Henderson having been commissioned to and in the Indian Army was not removable from his office except with the sanction of the Central Government ie the then Governor General in Council and as there was no such sanction he could not validly be tried for the offence he was charged with The case made before us in this Court was that the claims put forward by the appellant were sent to Henderson for verification and Henderson verified them to be correct and that he did this while acting or purporting to act in the discharge of his duty as public servant The question then is whether the facts which are alleged to constitute the offence of abetment of cheating under section 420 read with section 109 Indian Penal Codefall within section 197 Criminal Procedure Code In Gill vs The King 1 the Privy Council laid down the following test as to when a public servant is said to or purports to act in the discharge of his official duty Lord Simonds there said at p 59 1 75 IA 41 115 A public servant can only be said to act or to purport to act in the discharge of his official duty if his act is such as to lie within the scope of Is official duty The test may well be whether the public servant if challenged can reasonably claim that what he does he does in virtue of his office The same test was repeated in Meads case 1 and in Phenindra Chandra Neogy vs The King2 Gill s case3 and Neogy s case 2 dealt with an offence of bribery under section 161 but Meads case1 was a case of a Courtmartial against an officer who was alleged to have misappropriated money entrusted to him and his defence was that while he was sleeping the currency notes were burnt by the falling of a candle which was burning in his room In Hori Rain Singh s case 4 which was approved by the Privy Council and this Court in Amrik Singh s case 5 Vardachariar J had accepted the correctness of that track of decision which had held that sanction was necessary when the act complained of attached to the official character of the person doing it The test was thus stated by Venkatarama Aiyar J in Amrik Singh s case 5 at p 1307 but if the act complained of is directly concerned with his official duties so that if questioned it could be claimed to have been done by virtue of the office then sanction would be necessary and that would be so irrespective of whether it was in fact a proper discharge of his duties because that would really be a matter of defence on the merits which would have to be investigated at the trial and could not arise at the stage of the grant of sanction which must precede the institution of the prosecution Even in regard to cases of misappropriation this Court in Amrik Singh s case 5 was of the opinion that if the act complained of is so integrally connected with the duties attaching to the office as to be inseparable from them then sanction would be necessary but if there is no connection between them and the performance of those duties the official status furnishing 1 75 IA 185 3 75 I A 41 2 76 IA 10 4 5 116 only the occasion or opportunity for the act then no sanction would be necessary There are two other cases reported in the same volume Ronald Wood Mathams vs State of West Bengal 1 and Shree Kanthiah Ramayya Munipalli vs The State of Bombay2 which also relate to sanction under section 197 Criminal Procter Code After reviewing all these various authorities Venkatarama Aiyar J held at p 1310 The result then is that whether sanction is necessary to prosecute a public servant on a charge of criminal misappropriation will depend on whether the acts complained of hinge on his duties as a public servant If they do then sanction is requisite But if they are unconnected with such duties then no sanction is necessary In this view of the law we have to decide whether sanction was necessary or not and it is a matter for investigation as to whether an Army officer situated as Henderson was so removable even if there was evidence to show that he was attached to the Indian Army Secondly it will have to be decided oil evidence that the act complained of against Henderson that is verifying the claim of the appellant which is the basis for the allegation of abetment of the offence of cheating is directly concerned with his official duties or it was done in the discharge of his official duties and was so integrally connected with and attached to his office as to be inseparable from them There is evidence neither in support of one nor of the other In this particular case if it was desired to raise such a question that should have been done at the earliest moment in the trial Court when the facts could have been established by evidence This is not the stage for asking the facts to be proved by additional evidence In the grounds of appeal to the High Court the objection was to the form of the sanction It also appears that no argument was raised in the High Court that the sanction under section 270 of the Constitution Act could not take the place of a sanction under section 197 Criminal Procedure Code because the scope of the two 1 2 117 provisions is different But as I have said above the evidence to support the plea under section 197 and to establish the requisite nexus between the act done by Henderson and the scope and extent of his duties is lacking and therefore the applicability of section 197 to the facts of the present case cannot be held to have been proved In my opinion the foundation has not been laid for holding that sanction under section 197 was necessary in the instant case I therefore agree that the appeals be dismissed By court The petitioner s Criminal Appeals Nos 100 to 105 of 1954 having been dismissed and the conviction of the petitioner having been upheld this petition is dismissed

The respondent booked certain goods on September 4 1947 with the N W Railway at Quebec in Pakistan to New Delhi The wagon containing the goods was received at the Indian border station of Khem Karan on November 1 1947 duly sealed and labelled indicating its destination as New Delhi It reached New Delhi on February 3 1948 and was unloaded on February 20 1948 but no immediate information was sent to the respondent On June 7 1948 the respondent was asked by the E P Railway to take delivery of the goods lying at New Delhi station but when the respondent went there the goods were not traceable Again on July 24 1948 the respondent was asked to take delivery of the goods when only a small portion of the goods 76 were offered to him subject to the payment of Rs 1067 8 0 as freight but the respondent refused to take delivery On August 41949 the respondent filed a suit for Rs 162123 with interest as compensation for non delivery of goods against the Dominion of India The trial court found that the E P Railway was guilty of negligence in handling the goods and decreed the suit for Rs 80000 and on appeal the High Court confirmed the decree The appellant contended that there was no privity of contract between the respondent and the E P Railway and he could only have a claim against the N W Railway in Pakistan and that the suit was barred by limitation Held that there was an implied contract of bailment between the respondent and the E P Railway and that Railway was liable for the loss The conduct of the parties indicated that the respondent delivered the goods to the N W Railway with an authority to create the E P Railway as his immediate bailer from the point the wagon was put on its rails The N W Railway must be deemed to have had implied authority to appoint the E P Railway to act for the consignor during the journey of goods by the E P Railway and by force of section 194 of the the E P Railway became an agent of the consignor The N W Railway left the wagon with the E P Railway and the latter consciously took over the responsibility of the bailer carried the wagon to New Delhi and offered to deliver the goods to the respondent The respondent also accepted this relationship From these facts even if an agency could not be implied a tacit agreement between the two Railways to carry the respondents goods to New Delhi could be implied resulting in a contract of bailment between the E P Railway and respondent Kulu Ram Maigraj vs The Madras Railway Company ILR GIP Railway Co vs Radhakisan Kushaldas ILR Bristol and Exeter Railway vs Collins VII HLC 194 and De Bussche vs Alt 1878 LR 8 Ch D 386 referred to Held further that the suit was not barred by limitation Even if article 30 of the Indian Limitation Act applied as contended for by the appellant the burden was on the appellant who sought to non suit the respondent to establish that the loss occurred beyond one year from the date of the suit Thus the appellant had failed to establish by any clear evidence

ons Nos 54 75 and 76 of 1959 Petitions under Article 32 of the Constitution of India for enforcement of Fundamental Rights C K Daphtary Solicitor General of India and B R L Iyengar for the petitioners H N Sanyal Additional Solicitor General of India R Gopalakrishnan and P M Sen for the respondent No 3 in Petitions Nos 54 and 75 of 1959 November 6 The judgments of Sinha CJ Imam Wanchoo and Das Gupta JJ was delivered by Wanchoo J Kapur J delivered a separate judgment Petitions Nos 54 and 75 of 1959 WANCHOO J These are two connected petitions under Act 32 of the Constitution and raise similar points and will be disposed of by this judgment The brief facts necessary for their disposal are these The petitioners are transport operators in what is known as the Anekal pocket of the State of Mysore 149 They held stage carriage permits for various routes which were expiring on March 31 1958 They therefore applied for the renewal of the permits on various dates in January 1958 as required under the law Normally their applications should have been disposed of before March 31 1958 However on February 1 the Mysore Government Road Transport Department hereinafter called the Department made applications under Chapter IV of the No IV of 1939 hereinafter called the Act for grant of permits on the same routes for which renewal applications were pending The Department followed this up by a letter dated February 25 1958 to the Regional Transport Authority Bangalore hereinafter called the Authority In this letter the Authority was informed that the Department had already submitted applications for grant of permits for operation of transport vehicles in the Anekal pocket and it was proposed to take over these routes with effect from April 1 1958 It was also pointed out that the Government of Mysore bad been pursuing the policy of nationalisation of road transport services with a view to rationalise and co ordinate the various forms of transport and that the Department was operating 1200 vehicles on 700 routes The letter went on to point out the advantages of granting permits to the Department resulting in rationalisation of the routes in the Anekal pocket in which at that time there were 20 routes and 58 operators It was therefore requested that the permits of the petitioners should not be renewed and fresh permits granted to the Department The Authority met a number of times from March to July 1958 but passed no orders on the applications of the petitioners nor on those of the Department Eventually on August 11 1958 the Authority dismissed the petitioners applications for renewal as well as the Department s for grant of fresh permits We must say that this appears to be a curious order for the result of this order strictly would be that no stage carriages would be able to ply on these routes However both parties appealed on September 9 1958 against the orders of August 11 In the meantime a 150 scheme under section 680 of Chapter IV A of the Act was published This scheme was approved on October 24 1958 while the appeals were pending On October 30 the appeals of both parties were allowed and the matter was remanded to the Authority for fresh disposal In the meantime however the petitioners had applied to the High Court for quashing the scheme and it was quashed by the High Court on December 3 1958 Thereafter the Authority met again and passed orders renewing the permits of the petitioners for a period of one year from April 1 1958 to March 31 1959 The petitioners went up in appeal against the orders granting them renewal only for one year on the ground that they were entitled to renewal for three years at least under section 58 of the Act Their appeals were dismissed as not maintainable They also applied to the High Court of Mysore under Articles 226 and 227 of the Constitution but their petition was dismissed in limine and a certificate to enable them to appeal to this Court was refused on March 30 1959 Thereafter the present petitions were filed in this Court In the meantime however a fresh scheme was published on January 22 1959 and after necessary formalities was approved on April 15 1959 and finally published as an approved scheme on April 23 1959 What happened thereafter is not really material for purposes of these petitions but we may as well mention it to complete the narrative The Department applied for permits under section 68F of the Act on April 24 1959 On April 30 1959 the petitioners challenged the new scheme before the High Court of Mysore by a writ petition That petition was however dismissed on June 1 1959 Thereafter they came to this Court for special leave and prayed for ex parte stay which was refused Notice was however issued on the stay application which was served in June 181959 It may be mentioned here that in order to avoid inconvenience to the public temporary permits had been granted to the petitioners on the expiry of the renewal upto March 31 1959 for a period of four months or upto the time the Department was granted permits under s68F whichever was earlier Consequently on June 23 151 1959 the Authority met and granted permits to the Department under section 68F and rejected the renewal applications of the petitioners which were said to have been filed under protest On June 24 1959 the transport services in pursuance of the scheme were inaugurated by the Chief Minister On the same day the petitioners applied to the High Court by a writ petition challenging the order of June 23 1959 On July 14 1959 the High Court held that the grant of permits to the Department was invalid and the rejection of the renewal applications was incorrect But it did not pass any order in favour of the Petitioners on the ground that the relief granted would be short lived and dismissed the writ petition The petitioners then applied for a certificate to enable them to appeal to this Court and that application is still pending Thereafter the Department applied for temporary permits which were granted on July 16 Another writ petition was filed on July 24 1959 by the petitioners challenging the grant of temporary permits to the Department which is still pending In the meantime the petitioners filed two other writ petitions in this Court which were admitted and will be dealt with separately Finally the special leave petition against the judgment of the High Court dismissing the writ petition against the approved scheme was dismissed by this Court on September 7 1959 The main contention of the petitioners in these cases is that they are entitled to carry on the business of transport of passengers as a fundamental right guaranteed to them under article 191g of the Constitution and that this right can only be restricted in the manner provided by the Act which is a regulatory measure dealing with motor vehicles They contend that they were entitled under section 58 of the Act to renewal of their permits for three years in case the Authority decided to renew them on the applications which they had made in January 1958 and in so far as the Authority gave them renewal only for one year it was acting in contravention of the Act and was thus committing a breach of their fundamental right They 152 therefore pray that this Court should come to their aid and protect their fundamental right to carry on the business of transport in accordance with the Act The prayer which they actually made is somewhat inartistic but in effect they want that the authority be directed to renew their permits in accordance with the Act which requires that the renewal must be for a period of not less than three years and not more than than five years so far as stage carriage permits are concerned The respondents to these petitions are the Mysore State Transport Authority the Regional Transport Authority and the General Manager Mysore Government Road Transport Department No appearance has been put in on behalf of the first two The petitions are being opposed by the third respondent namely the Department and the main contention on its behalf is that on a correct interpretation of section 58 of the Act it is open to the Authority to renew a permit for any period it chooses to fix and therefore it was acting in accordance with the law when it fixed the period at one year It is further contended that even if the Authority must fix a period of not less than three years and not more than five years the only order that this Court should pass in these cases is to quash the order of the Authority dated December 15 1958 and direct it to decide the renewal applications in accordance with the law to be laid down by this Court It will be clear from the above contentions of the parties that the first and foremost question in this case is the interpretation of section 58 of the Act That section appears in Chapter IV of the Act which deals with Control of Transport Vehicles in which term is included a stage carriage with which we are concerned here It is necessary therefore to consider the scheme of Chapter IV in order to interpret section 58 thereof That Chapter begins with section 42 which prohibits the owner of a transport vehicle from using it except in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority Section 44 provides for the constitution of the State 153 and Regional Transport Authorities Then comes sections 45 and 46 which provide for making of an application for permit and the contents of such an application Section 47 sets out matters to which a Regional Transport Authority shall have regard in considering the application for a stage carriage permit Section 48 gives power to the Regional Transport Authority to grant a stage carriage permit in accordance with the application or with such modifications as it deems fit It also provides that every stage carriage permit shall be expressed to be valid for specified route or routes and sets out the conditions which may subject to any rules be attached to a permit We are not concerned in these cases with sections 49 to 56 which deal with other kinds of transport vehicles Section 57 provides the procedure in applying for and granting of permits Then comes section 58 which deals with duration and renewal of permits and is in these terms 581a A stage carriage permit or a contract carriage permit other than a temporary permit issued under section 62 shall be effective without renewal for such period not less than three years and not more than five years as the Regional Transport Authority may specify in the permit b A private carrier s permit or a public carrier s permit other than a temporary permit issued under section 62 shall be effective without renewal for a period of five years 2 A permit may be renewed on an application made and disposed of as if it were an application for a permit Provided that the application for the renewal of a permit shall be made a in the case of a stage carriage permit or public carrier s permit not less than sixty days before the date of the expiry and b in any other case not less than thirty days before the date of its expiry Providing further that other conditions being equal an application for renewal shall be given preference over new applications for permits 20 154 3 I will be seen from this scheme of the Act that the duration of a permit is not one of the conditions attached to it but is specifically provided for in section 58 Sub section 1a thereof comes into play after the Authority has decided to grant a permit and lays down that a stage carriage permit or a contract carriage permit other than a temporary permit issued under section 62 shall be effective without renewal for such period not less than three years and not more than five years as the Authority may specify in the permit This sub section therefore casts a duty on the Authority after it has decided to grant a stage carriage permit to specify therein the period for which it shall be valid and this period can in no case be less than three years and more than five years This sub section applies to grant of a permit Then comes sub section 2 which lays down that a permit may be renewed on an application made and disposed of as if it were an application for a permit The contention on behalf of the petitioners is that this provision means that an application for renewal shall in all respects be treated as an application for a permit and therefore the period provided under section 581 a for a permit would also govern the period for which the renewal should be granted On the other hand it is contended for the Department that sub section 2 only refers to the procedure for granting permits and the duration provided for sub section 1a being not a matter of procedure will not apply to a renewal It is conceded that there is no other provision in the Act which lays down the period for which a renewal should be made But it is urged that this means that it is open to the Authority to fix any reasonable period for renewal Reliance in this connection was placed in particular on the words without renewal appearing in a581 and also on a decision of this Court in V C K Bus Service Ltd vs The Regional Transport Authority Coimbatore 1 That case however did not deal with the question before us but with a different question altogether The question there was whether 1 155 a renewal amounted to a grant of a fresh permit or was merely a continuation of the original permit This Court held that the renewal was a continuation of the original permit It had no occasion then to deal with the question specifically before us namely whether a renewal should also be for the same period as provided in section 58 1a Let us therefore turn to the contention based on the words without renewal appearing in section 58 1a It is urged that these words clearly indicate that section 581a applies only to the first grant of the permit and cannot in any circumstances apply to a renewal of the permit As we have already said section 581a specifically deals only with the grant of a permit and not with a renewal The words without renewal appearing in that sub section only signify that in counting the period of a permit renewals should be disregarded It was necessary to put in these words to meet a possible contention arising out of the fact that a renewal only amounts to a continuation of the original permit The effect of these words is that in considering the period of a permit the period of the renewal should not be added to the period of the permit thus making the total period which may be more than five years invalid under section 581a For example a permit may be granted for five years It is then renewed for another five years Now the permit is the same and the renewal is only endorsed upon it If the words without renewal were not in the sub section it might be contended that the permit being the same its period was ten years and therefore it contravened section 58 1a These words therefore were necessary to meet this contention and are no indication that the period mentioned in section 581a does not apply to renewals We may in this connection refer to the language of section 10 where also the same two words occur ie A driving licence issued or renewed under this Act shall subject to the provisions contained in this Act as to the cancellation of driving licences and disqualification of holders of driving licences for holding or obtaining driving licences be effective 156 without renewal for a period of three years only from the date of the issue of the licence or as the case may be from the date with effect from which the licence is renewed under section 11 Thus though the earlier part of section 10 specifically deals with issue and renewal of driving licences the words without renewal are to be found in the latter part and that clearly indicates that these words were necessary to be put in to meet the contention that the licence remaining the same even after renewal its period could not in any case exceed three years in all It was however submitted that section 10 specifically provides for renewals also for three years and that is not provided in section 581a That is undoubtedly so But the reason why section 581a does not provide specifically for renewals is to be found in the fact that there is section 582 specifically providing that an application for renewal shall be made and disposed of as if it were an application for a permit Section 11 which deals with renewal of licences has no comparable words for it merely says that any licensing authority may on application made to it renew a licence issued under the provisions of this Act from the date of its expiry Different language used in sub section 2 of section 58 therefore must have a different effect and the contention on behalf of the petitioners is that section 582 when it says that an application for renewal shall be made and disposed of as if it were an application for a permit must mean that all incidents which apply to a permit shall also apply to a renewal application One of the incidents which applies to a permit is that the Authority is enjoined by sub section 1a of section 58 to indicate a period of not less than three years and not more than five years in the permit so far as its duration is concerned The same must apply to a renewal and the Authority must indicate when granting a renewal a period of not less than three years and not more than five years as the duration We are of opinion that the contention of the petitioners as to the effect of section 582 is correct There is no other provision in the Act which fixes the duration of a renewal It could hardly be the intention of the 157 legislature that the duration of the renewal should be left entirely to the discretion of the Regional Transport Authority particularly when the legislature took care to fix the duration for the permit itself It is urged that the legislature intended that the duration of the renewal should be left to the Authority which would prescribe a reasonable period which may even be less than three years If that was so it would be equally open to the Authority to specify a period for more than five years which it may consider reasonable We do not think that this was the intention of the legislature and the reason why no other provision was made for the duration of a renewal was that the legislature intended by these words in section 582 that the renewal would be for such period as was prescribed in section 1a for a fresh permit It is not disputed that the effect of section 582 is that the considerations for renewal would be the same as for the grant of the permit and the procedure would also be the same But it is said that the legislature did not intend to go further and prescribe the same duration for a renewal as for a permit We are of opinion that there is no reason why we should stop short at section 57 and should not take into account section 581a as applying to a renewal along with all other considerations that apply to the grant of a permit section 582 lays down that a renewal application shall be made and disposed of as if it were an application for a permit and we think that all that applies to the grant of a permit would also apply to the grant of a renewal One of the provisions which apply to the grant of a permit is section 581a relating to the duration of a permit and that must in our opinion on the words of section 582 apply to the duration of a renewal It may also be mentioned that there were amendments of section 58 by various State legislatures by which the duration of a permit could be fixed at less than three years When however the Central legislature made amendments in the Act by the Amending Act No 109 of 1956 the amendments made by the State legislatures earlier fell through and the Central 158 legislature did not think it fit to give power to the State legislatures to reduce the period below three years in the case of a permit If it were intended that a permit may be granted for less than three years and a renewal may be made also for less than three years we would have expected some provision to that effect in the Amending Act of 1956 for the Central legislature could not be unware of the amendments made by the various State legislatures In the circumstances we are of opinion that the duration of a permit under section 581a being not less than three years and more than five years the same applies to a renewal We therefore hold that reading sections 581a and 582 together a renewal must also be governed by the same provision which governs the duration of a permit This brings us to the question of relief to be granted to the petitioners It is contended on behalf of the Department that all that this Court can do is to quash the order of December 15 1958 and send the case back to the Authority for consideration of the question of renewal afresh On the other hand the petitioners contend that this Court should quash the illegal condition limiting the duration of the renewal to one year and direct the Authority to specify a period of not less than three years and not more than five years in conformity with section 581a in the order of renewal This raises the question of severability of a part of the order passed by the Authority The principles on which any unconstitutional provision can be severed and struck down leaving other parts of a statute untouched were laid down by this Court in R M D Chamarbaugwalla vs The Union of India 1 and the first principle is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid This principle relating to statutes was extended by this Court to orders in Shewpujanrai Indrasanrai Ltd vs The Collector of Customs and Others 2 where a part of the order of the Collector of Customs was quashed The question therefore resolves into this Would the Authority have ordered renewal if it knew that it could not reduce 1 2 159 the period of a permit to below three years Looking at the facts of these cases which we have set out earlier it is to our mind obvious that the Authority would have granted renewal in the circumstances of these cases when it did so in December 1958 The previous permits in these cases had expired on March 31 1958 and the petitioners had been plying their stage carriages right up to the time when the order was passed on December 15 1958 they could not do so without a permit in view of section 42 of the Act Therefore renewal in these cases was certain when the order was passed on December 15 1958 In the circumstances it is open to us to sever the illegal part of the order from the part which is legal namely the grant of the renewal The next question is what order should be passed in the circumstances This depends on the exigencies of each case for this Court is not confined by the technical rules relating to issue of writs by the English Courts In T C Basappa vs T Nagappa and Another this Court observed as follows at p 256 The language used in articles 32 and 226 of our Constitution is very wide and the powers of the Supreme Court as well as of all the High Courts in India extend to issuing of orders writs or directions including writs in the nature of habeas corpus mandamus quo warranto prohibition and certiorari as may be considered necessary for enforcement of the fundamental rights and in the case of the High Courts for other purposes as well In view of the express provision in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges We can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law 1 160 It is therefore upon to us to issue a direction in the nature of mandamus requiring the Authority to follow the law as laid down by this Court in respect to the order of renewal granted by it in accordance with section 58 1 a It is true that where it is a case of discretion of an authority this Court will only quash the order and ask the authority to reconsider the matter if the discretion has not been properly exercised But in this case the discretion is not absolute it is circumscribed by the provision of section 581a which lays down a duty on the Authority which grants a renewal to specify a period which is not less than three years and not more than five years The duty being laid on the Authority which has in this case decided to grant a renewal to specify a period not less than three and not more than five years as the duration of the renewal it is in our opinion open to this Court to direct the Authority to carry out the duty laid on it by section 58 1 a read with section 58 2 when it has granted the renewal We therefore allow the petitions and quash that part of the order complained against which specified the renewal of the permits upto March 31 1959 and direct the Regional Transport Authority Bangalore to comply with the requirements of the law as laid down in section 58 1 a read with section 58 2 in the order of renewal made by it in favour of the petitioners on December 15 1958 The petitioners will get one set of costs from the Mysore Government Road Transport Department which alone has contested these petitions Petition No 76 of 1959 WANCHOO J This is a petition under article 32 of the Constitution by certain transport operators in the State of Mysore and raises a question as to the interpretation of section 582 of the No IV of 1939 hereinafter called the Act The brief facts which are necessary for our purpose are these The petitioners were operating on the basis of stage carriage permits on certain routes which are under the control of the Regional Transport Authorities Bangalore and Kolar hereinafter called the Authorities The routes 161 being inter district routes the permits are issued by the Regional Transport Authority Bangalore and are countersigned by the Regional Transport Authority Kolar That is why both have been made parties to the petition The permits of the petitioners were expiring on December 31 1957 and were renewed upto March 31 1958 Applications for renewal were invited thereafter for three years from April 1 1958 Consequently the petitioner made applications for renewal of their permits It appears that the Mysore Government Road Transport Department hereinafter called the Department also applied for permits for the same routes The Department also wrote a letter each to the two Authorities in which it pointed out that the Government of Mysore was pursuing a policy of nationalisation of road transport services in the State and that it would be in a better position to run the services on these routes and would be able to rationalise and co ordinate the various forms of transport and offer better service to the public It therefore requested that the permits of the petitioners should not be renewed and that the Department was prepared to take over the services from April 1 1958 Though meetings were held from May to December 1958 the Authorities did not pass any orders on the applications for renewal It appears however that the applications of the Department for grant of permits were dismissed in September 1958 The Department went up in appeal against this order which was allowed in March 1959 and the Authorities were directed to reconsider the applications In the meantime the Regional Transport Authority Bangalore ordered in January 1959 that the applications for renewal should be re notified and this was done Upon this the Department wrote again to the Bangalore Authority on February 20 1959 not to renew the permits of the petitioners Eventually the Regional Transport Authority Bangalore met on March 29 1959 and renewed permits relating to certain other routes for three years while the applications of the present petitioners were postponed There was another meeting on April 30 1959 when the permits of the petitioners were renewed 162 till September 30 1959 It is this order which is being challenged by the present petition The petitioners case is that they are entitled to carry on the business of transport of passengers as a fundamental right guaranteed to them under article 191g of the Constitution and that this right can only be restricted in the manner provided by the Act which is a regulatory measure dealing with motor vehicles They contend that they were entitled under section 58 of the Act to renewal of their permits for at least three years in case the Authorities decided to grant renewal on the applications which they had made in January 1958 and in so far as the Authorities gave them renewal only upto September 30 1958 they were acting in contravention of the Act and were thus committing a breach of their fundamental right They therefore pray that this Court should come to their aid and protect their fundamental right to carry on the business of transport in accordance with the Act The prayer which they actually made is somewhat inartistic but in effect they want that the Authorities be directed to renew their permits in accordance with the Act which requires that the renewal must be for a period of not less than three years and not more than five years so far as stage carriage permits are concerned The petition has been opposed by the Department and the main contention on its behalf is that on a correct interpretation of section 58 of the Act it is open to a Regional Transport Authority to renew a permit for any period it chooses to fix and therefore the Authorities in this case were acting in accordance with the law when they renewed the permits of the petitioners upto September 30 1959 It is further contended that even if the Regional Transport Authority must fix a period of not less than three years and not more than five years the only order that this Court should pass is to quash the order dated April 30 1959 renewing the permits upto September 30 1959 and direct the Authorities to decide the renewal applications in accordance with the law to be laid down by this Court 163 This case is similar to Writ Petitions Nos 54 and 75 of 1959 in which judgment has been just delivered today and raises the same two questions which have been raised there The only difference is that there no scheme prepared under Chapter IV A in connection with the routes with which we are concerned here We have considered the interpretation of section 582 read with section 581a in Writ Petitions Nos 75 and 54 of 1959 and the form of the order to be passed For reasons given in those petitions we are of opinion that this petition should be allowed We therefore allow the petition and quash that part of the order complained against which specified the renewal of the permits upto September 30 1959 and direct the Authorities to comply with the requirements of the law as laid down in section 581a read with section 582 in the order of renewal made by them in favour of the petitioners on April 30 1959 The petitioners will get their costs except hearing costs as the hearing was common with Petition No 75 of 1959 from the Mysore Government Road Transport Department which alone has opposed the petition Petitions Nos 54 75 and 76 of 1959 KAPUR J In the circumstances of this case I do not propose to give any opinion on the question whether in renewing a permit the Regional Transport Authority had to do so for a period of not less than three and not more than five years Assuming that it should have been so what is the form of order that this Court could and should make in a case like the present The petitioners prayer was as follows Wherefore your petitioners most humbly pray that the order of the 2nd respondent dated 15th December 1958 and be quashed as illegal arbitary unreasonable unconstitutional and void and the 2nd respondent be directed to grant renewal of your petitioners permit strictly according to law as has been done in the case of all other operators in that region upto 31st March 1961 If the Impugned order is without jurisdiction then it is liable to be quashed If it is such that no reasonable 164 body could have given it then it must be deemed to be in excess of jurisdiction and in that case also it is liable to be quashed The power of a superior court in such cases is not that of an Appellate Authority overriding the decision of the Administrative Tribunal in this case the Regional Transport AuthorityAssociated Provincial Picture Houses Ltd vs Wednesbury Corporation 1 The Petitioners submitted that the Regional Transport Authority be directed to grant renewal of the permits for a period of three years in other words what the petitioners want is not only that the order of the Regional Transport Authority be quashed but it should be substituted by the order directing the Authority to act in a particular manner that is to renew the permits for a period of not less than three and not more than five years By doing this this Court will be directing an order in substitution of the order passed and not merely quashing the order made by the Regional Transport Authority but also amending it In England the power of certiorari did not extend to ordering an amendment of an order The King vs Willesden Justices Exparte Utley 2 In that case a person was properly convicted for an offence by the Justices but was erroneously fined in a sum in excess of the statutory maximum and it was held that the conviction was bad on the face of it and the order must be quashed because unlike the Appeal Court a court acting in its extraordinary prerogative jurisdiction had no power to amend the order and all that could be decided in a case of that kind was whether the conviction was good in law In a number of other cases a similar view was taken by the English Courts Even where the matter is one which falls under the power of issuing a mandamus the order can only command the Tribunals to hear and decide the particular matter and no writ will be issued dictating to them in what manner they are to decide This rule holds good even though the decision is erroneous not only as to facts but also in point of law and although the particular circumstances of the case are such that 1 2 165 there is only one way of performing the duty in question Halsbury s Laws of England 3rd Edition Vol 11 page 101 paragraph 187 This principle was accepted in Veerappa Pillai vs Raman Raman Ltd1 Chandrasekhara Iyer J while delivering the judgment of this Court said at page 596 Further it will be noticed that the High Court here did not content itself with merely quashing the proceedings it went further and directed the Regional Transport Authority Tanjore to grant to the petitioner permit in respect of the five buses in respect of which a joint application was made origin ally by the petitioner and Balasubramania Pillai and that in case the above buses have been condemned the petitioner shall be at liberty to provide substitutes within such time as may be prescribed by the authorities Such a direction was clearly in excess of its powers and jurisdiction In Basappa vs Nagappa 2 this case was referred to with approval The petitioners relying upon two judgments of this Court submitted that the impugned order was severable and it should be severed and the portion which is not in accordance with law should be excised and a direction given that the tribunal should specify a period of not less than three years and not exceeding five years In my opinion this is nothing more than substituting an order in place of the order passed by the Regional Transport Authority itself It must be recognised that under article 32 this Court has the power to enforce fundamental rights and a right under article 32 itself is a fundamental right but when this Court exercises the power of judicial review in the matter of enforcement of fundamental rights which are alleged to be infringed because of some order passed by an administrative Tribunal in the exercise of its jurisdiction this Court has to proceed on certain principles and one of the recognised principles is that in the whole of administrative law the functions that can be performed by judicial review 1 2 166 are fairly limited The role of the courts in this field is to serve as a check on the administrative branch of government a check against excess of power and abusive exercise of power in derogation of private right The judicial function is thus one of control we may expect judicial review to check not to supplant administrative action Bernard Schwartz on American Administrative Law page 113 The question is whether the powers given under article 32 are such that this Court can direct the exercise of direction by the administrative tribunal in the manner that this Court would have exercised it It is said that the tribunal would have ordered the renewal of the permits irrespective of whether they were going to be for a period of not less than three and not more than five years There is slender basis for this assumption and the fact that there was nationalisa tion in the offing do not give it much support In giving such a direction as is proposed this Court will be substituting itself in place of the Regional Transport Authority and acting as if it was the Authority itself which is beyond the scope of judicial review Reliance was placed by the petitioners on Shewpujanrai Indrasanrai Ltd vs The Collector of Customs 1 In that case the Collector of Customs purporting to act under section 1678 of the Sea Customs Act ordered 1 confiscation of the smuggled gold 2 in lieu thereof an option to pay fine of Rs 10 lakhs and 3 in addition to pay proper customs duty and other charges leviable thereupon and 4 imposed a condition that the release of gold will be subject to the production of a permit from the Reserve Bank of India within a period specified in the order It was conceded that the Collector had no power to impose the last two conditions and it was contended that the order being a composite and integrated whole part of it was within jurisdiction of the Collector and part of it without and the superior court must quash the whole order as being in excess of jurisdiction Relying upon 1 167 the judgment of this court in R M D Chamarbaugwalla vs Union of India1 this Court was of the opinion that there was no difficulty in enforcing the order even after excising the two illegal conditions section K Das J in delivering the judgment of the Court said There is no legal difficulty in enforcing the rest of the impugned order after separating the invalid conditions therefrom For these reasons we agree with the Division Bench of the High Court that the invalid conditions imposed by the Collector in this case are severable from the rest of the impugned order But these observations have to be read in the context of the facts and the decision of the case The King vs Willesden Justices Ex parte Utley 2 was cited but was not applied because of the observations of this Court in T C Basappa vs T Nagappa Anr 4 to which I shall refer presently The main ground on which the order of severability was passed was that the appellant in that case had not merely asked for a writ of certiorari but also for a writ of mandamus and prohibition and that the prayers were neither unnecessary nor mere surplusages and they were appropriate for the purpose of getting rid of conditions imposed by the Collector for the release of gold It was held in that case that if a decision of an inferior court or tribunal was partly within and partly without its jurisdiction prohibition will lie against what is in excess of juris diction and reference was made to Halsbury s Laws of England 3rd Edition Vol 11 page 116 paragraph 216 and also to Shree Ram Krishna Dalmia vs Shri Justice section R Tendolkar Ors 4 where the principle of severability was applied In Shewpujanrai s case two passages from Basappa vs Nagappa3 at page 257 were quoted with approval After a review of these various authorities section K Das J said at page 844 Therefore we do not see any insuperable difficulty in the present case in prohibiting respondents 1 to 3 from enforcing the two invalid conditions 1 3 2 5 4 168 which the Collector of Customs had imposed for release of the gold on payment of the fine in lieu of confiscation and the time limit of four months fixed by the Collector must accordingly run from the date of this order It will be seen therefore that in Shewpujanrai s case 1 although this Court was of the opinion that the powers of the Court are wider than those of the Courts in England yet in the exercise of those powers of issuing writs the broad and fundamental principles that regulate the exercise of jurisdiction granting such writs in English law will be observed The case is no authority for saying nor did it lay down that in the matter of judicial review this Court will proceed on different principles than the Courts in England The main decision in the case proceeded on the ground that a writ of prohibition was prayed for in granting which it was open to the Court to issue a writ quashing that portion which was in excess of jurisdiction Besides in that case by severing the illegal conditions which had been imposed the order of the Collector still remained one enforceable and not a truncated order which would be incomplete by the excision of those two conditions Can it be said in the instant case that the impugned order can remain one whole integrated and intelligible order by taking away the condition in regard to the period and could it fall within the rules laid down in Chamarbaughwalla s case 2 The 6th condition there laid down at page 951 was that if after the invalid portion was expunged what remained could not be enforced without making alterations and modifications therein then the whole must be struck down Can it be said as it could be said in Shewpujanrai s case 1 that the order is enforceable without the period and without making a substituted order in place of the order made by the Regional Transport Authority In my opinion it cannot be Then I come to the consideration in T C Basappa vs T Nagappa 3 That was a case which arose in appeal against the decision of the Mysore High Court 1 2 3 169 given under article 226 in regard to an election matter where the Election Tribunal had found certain issues in favour of the petitioner and had declared the election to be void and the respondent filed an application under article 226 for a writ or direction in the nature of certiorari which was allowed The question raised in this Court was that the Tribunal whose order had been quashed had neither acted without jurisdiction nor was there any error apparent on the face of the record and the two questions which arose for decision were 1 what was the extent of the power of the High Court in exercise of its powers under Art 226 to grant a writ of certiorari to quash the adjudication of an Election Tribunal and 2 whether such grounds did exist After reference to the principles on which superior courts in England act in issuing writs of certiorari and how the power had developed Mukherjea J as he then was observed that under the Constitution of India new and wide power had been conferred on the High Courts of issuing directions orders or writs primarily for the enforcement of fundamental rights and also included the power of issuing such directions for any other purpose At p 256 the learned Judge said In view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges We can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law Italics are mine It will thus be seen that in that case this court did not hold that the principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law were not to be keptin view As a matter of fact the learned Judge then gave quotations from 22 170 various English decisions eg Rex vs Electricity Commissioners 1 King vs Nat Bell Liquors Limited 2 At page 258 a passage from the judgment of Morris L J in Rex vs Northumberland Compensation Appellate Tribunal3 was quoted with approval and then a passage from the judgment of Chandrasekhara Iyer J in Veerappa Pillai vs Raman Raman Ltd 4 at p 594 However extensive the jurisdiction may be it seems to us that it is not so wide or large as to enable the High Court to convert itself into a Court of Appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or the order to be made was quoted After referring to these various passages Mukherjea J as he then was said These passages indicate with sufficient fullness the general principles that govern the exercise of jurisdiction in the matter of granting writs of certiorari under article 226 of the Constitution It cannot therefore be said that in Basappa s case this Court said or intended to say that a superior court acts in a manner different from that in which the courts acted in England All it intended to say was that in that case on the facts and circumstances found by the High Court a writ of certiorari was rightly issued This Court did not say that in issuing a writ of certiorari a superior court could substitute orders or direct what the order should be In other words judicial review extends to a check on administrative tribunals and not to supplant administrative action In my opinion the power of this Court only extends to quashing and not to substituting an order in place of what an administrative tribunal has done or to direct what it should do Reference was made by the learned Solicitor General to Kochunni vs State of madras 6 in which certain observations were made as to the power of this Court to frame its writs or orders to suit the exigencies of the case That was not a case of judicial review of administrative action but of the exercise of 1 at p 205 2 at p 156 3 at P 357 4 5 6 171 the powers under article 32 in a case where the validity of an Act eo instanti abridging the petitioner s rights under article 191f was in dispute The decision the observations and the rule laid down must be read in the context and in the circumstances of that case United Motors Transport Co vs Sree Lakshmi Motors Transport Co Ltd 1 also was not a case of judicial review but an appeal from a decree and does not affect the question now before us The petitioners applied to the High Court under articles 226 227 of the Constitution against the order made by the Regional Transport Authority but that was dismissed and a certificate for appeal was also refused by the High Court As to what is the legal effect of the order of the High Court which has become final by its not being appealed against I do not propose to discuss in this case as we have not had the advantage of its being debated at the Bar In my opinion no order commanding the Regional Transport Authority as to what order it should pass and what period should be substituted in place of the order passed by the Regional Transport Authority can be made by this Court and all that this Court can do is to quash the order and leave it to the Regional Transport Authority to reconsider the matter and exercise its discretion keeping in view the law as laid down by this Court As the petitioners success would be partial I leave the parties to bear their own costs in this Court ORDERS OF COURT In Petitions Nos 54 and 75 of 1959 In accordance with the opinion of the majority we allow the petitions and quash that part of the order complained against which specified the renewal of the permits upto March 31 1959 and direct the Regional Transport Authority Bangalore to comply with the requirements of the law as laid down in section 58 1a read with section 582 in the order of renewal made by it in favour of the petitioners on December 15 1958 The petitioners will get one set of costs from the Mysore 1 172 Government Road Transport Department which alone has contested these petitions In Petition No 76 of 1959 In accordance with the opinion of the majority we allow the petition and quash that part of the order complained against which specified the renewal of the permits upto September 30 1959 and direct the Authorities to comply with the requirements of the law as laid down in section 581a read with section 582 in the order of renewal made by them in favour of the petitioners on April 30 1959 The petitioners will get their costs except hearing costs as the hearing was common with Petition No 75 of 1959 from the Mysore Government Road Transport Department which alone has opposed the petition

The stage carriage permits of the petitioners who were also the petitioners in Writ Petition NO 75 of 1959 previously reported were expiring on 31st March 1958 and were renewed up to March 31 959 A fresh scheme of nationalisation having 131 been approved and published under section 68C of the Motor Vehicles Act the Regional Transport Authority in order to avoid inconvenience to the public granted temporary permits to the petitioners till the State Transport Department obtained their permits The Department applied for permits under section 68F1 of the Act in accordance with the scheme admittedly less than six weeks before the date when they were to take effect contrary to the provision of section 572 of the Act The petitioners had also applied for renewal of their permits The Regional Transport Authority issued permits to the Department and rejected the renewal applications of the petitioners The petitioners moved the High Court under article 226 of the Constitution for quashing that order The High Court held that the issue of permits to the Department was invalid as the provision of section 572 had not been complied with and the refusal of renewal of the petitioners permits was incorrect but it dismissed the Writ Petition on the ground that the relief that could be granted to the petitioners could only be short lived The petitioners applied for a certificate to enable them to appeal to this Court and while that application lay pending applied to this Court under article 32 of the Constitution It was contended on their behalf that before the renewal application could be rejected and permits granted to the Department under section 68F1 of the Act the Department must apply for permits in respect of all the routes covered by the scheme so that there could be no possibility of any discrimination between an operator and an operator in infringement of article 14 of the Constitution as also their rights to carry on their business under article 191g of the Constitution It was further contended that non compliance with the provision of section 572 of the Act disentitled the Department to any permits at all It was contended on behalf of the Department that it was open to it to implement the scheme by stage and it was denied that there could be any discrimination in doing so or that section 572 applied to an application under section 68F1 of the Act Held per Sinha CJ Imam Wanchoo and Das Gupta JJ that it was clear from the language of s 68F of the that an application by a State Transport Undertaking for a permit thereunder must be made in the manner prescribed by Ch IV of the Act and therefore there could be no doubt that such an application must fall within the purview of section 572 of the Act Consequently the orders granting the application for permits made by the State Transport Department in the instant case admittedly in breach of section 572 of the Act were on that ground alone liable to be quashed Section 68C of the Act contemplates that where there is no intention to operate an entire route but a portion of it that portion alone should be specified as the route and not the whole of it or any portion thereof as in the instant case The scheme however clearly intended that all the routes in their entirety 132 were to be taken over and so the qualifying words were mere surplusage Per Kapur J On a proper construction of sections 68C and 68F of the Act it would not be correct to say that the Legislature intended that the scheme as approved must be implemented all at once or not at all It would be impractical to suggest that the whole scheme should be implemented in a rigid manner Some flexibility in implementing it must necessarily be implied for otherwise nationalisation of transport services the accepted State policy in India was likely to be indefinitely held up if not thwarted The language used by section 68F lends no support to such a contention nor do the words in pursuance of occurring therein mean that the whole of the scheme has to be put into operation and not a portion of it Bradford Corporation vs Myers referred to If the State cannot take over routes for which application can be immediately made the taking over must become not only difficult but extremely expensive as other interests may supervene in the meantime Where therefore it intends to run a scheme within a reasonable time there can be no reason why it should not apply for different routes within a reasonable time so long as it acts honestly fairly and without any oblique motives Since the State Undertaking in the present case had imple mented a part of the scheme and made fresh applications for permits in the manner provided by section 572 and their relevant provisions of Act it is not necessary to pass a formal order quashing the permits granted in its favour K N Guruswamy vs The State of Mysore 1955 1 section CR 305 referred to

Civil Appeal No169 of 1958 Appeal by special leave from the decision dated June 29 1955 of the Labour Appellate Tribunal of India Bombay in Appeal Bombay No 245 of 1955 arising out of the Award dated July 14 1955 of the Industrial Tribunal Bombay in Reference IT No 100 of 1954 5 34 C K Daphtary Solicitor General of India Purshottam Tricumdas and I N Shroff for the appellant N V Phadke and K R Chaudhuri for the respondents October 16 The Judgment of the Court was delivered by GAJENDRAGADKAR J Are workmen entitled to the double benefit of a gratuity scheme as well as retrenchment compensation That is the main question which falls to be considered in the present appeal The same question along with some other subsidiary points arises in some other appeals and so all of them have been grouped together and placed before us for disposal We propose to deal with the main point in the present appeal and discuss the other points arising in the other appeals separately This appeal by special leave arises from an industrial dispute between the Indian Hume Pipe Co Ltd Bombay hereinafter called the appellant and its workmen monthly rated including canteen boys employed under it hereinafter called the respondents The dispute was in regard to the claim for gratuity made by the respondents and it was referred to the tribunal in these words Gratuity employees should be paid gratuity on the scale and the conditions prescribed in the industrial tribunal s award in Ref IT No 82 of 1950 dated August 13 1951 It should also be paid to those whose services have been terminated by the management after the termination of the aforesaid award It appears that the respondents had raised an industrial dispute in 1950 which covered their claims for scale of pay dearness allowance provident fund and gratuity and it was referred to the adjudication of Mr Thakore On this reference Mr Thakore made his award on August 13 1951 which inter alia provided for a scheme of gratuity Both the parties had gone in appeal against the said award but the appellate tribunal dismissed both the appeals and confirmed the award On June 2 1953 notice was given by the respondents terminating the said award and making a fresh demand for gratuity at 35 a higher rate Conciliation proceedings were started but they failed and so on July 1 1954 the present reference was made Before the tribunal the employees urged that the State Government had no jurisdiction to confine their demand to the scheme of gratuity as framed by Mr Thakore and they urged the tribunal to consider their claim for a revision of the said scheme The tribunal held that its jurisdiction was limited by the terms of reference and it could not entertain any such plea it also observed that even if it was open to the respondents to agitate for the revision of the said award there was not much chance of their succeeding in that demand The appellant opposed the scheme of gratuity framed by the earlier award and contended that no gratuity should be paid to the workmen who would be entitled to receive retrenchment compensation under section 25F of the hereinafter called the Act This contention was negatived by the tribunal It held that the respondents were entitled to claim both gratuity and retrenchment compensation The tribunal then examined the financial position of the appellant and held that the gratuity scheme framed by the earlier award should be en forced subject to certain modifications specified by it This award was challenged by the appellant before the Labour Appellate Tribunal and it was argued that the respondents were not entitled to the double benefit of the gratuity scheme and the statutory retrenchment compensation The appellate tribunal agreed with the view taken by the tribunal and rejected the appellant s contention It also examined the financial position of the appellant and held that it saw no reason to interfere with the discretion exer cised by the tribunal in granting the same gratuity to the workmen in the case of retrenchment as in other cases Then the appellate tribunal considered the merits of the scheme sanctioned by the tribunal and made some changes and added one paragraph which had been included in the earlier award but had been omitted by the tribunal This paragraph dealt with the cases of persons retrenched after the date of 36 reference but before the award came into operation and it directed that in the case of such persons no additional gratuity shall be paid if they have already received unemployment or retrenchment compensation in excess of the gratuity awarded above in other cases the difference alone shall be paid It is against this award that the present appeal has been preferred On the contentions raised in the tribunals below the principal point which calls for our decision is whether a scheme of gratuity can be framed by industrial tribunals for workmen who are entitled to the benefits of 25F of the Act This question has been frequently raised before industrial tribunals and has generally been answered in favour of the employees In dealing with this question it is important to bear in mind the true character of gratuity as distinguished from retrenchment compensation Gratuity is a kind of retirement benefit like the provident fund or pension At one time it was treated as payment gratuitously made by the employer to his employee at his pleasure but as a result of a long series of decisions of industrial tribunals gratuity has now come to be regarded as a legitimate claim which workmen can make and which in a proper case can give rise to an industrial dispute Gratuity paid to workmen is intended to help them after retirement whether the retirement is the result of the rules of superannuation or of physical disability The general principle underlying such gratuity schemes is that by their length of service workmen are entitled to claim a certain amount as a retrial benefit On the other hand retrenchment compensation is not a retirement benefit at all As the expression retrenchment compensation indicates it is compensation paid to a workman on his retrenchment and it is intended to give him some relief and to soften the rigor of hardship which retrenchment inevitably causes The retrenched workman is suddenly and without his fault thrown on the street and has to face the grim problem of unemployment At the com mencement of his employment a workman naturally expects and looks forward to security of service 37 spread over a long period but retrenchment destroys his hopes and expectations The object of retrenchment compensation is to give partial protection to the retrenched employee and his family to enable them to tide over the hard period of unemployment Thus the concept on which grant of retrenchment compensation is based is essentially different from the concept on which gratuity is founded It is true that a retrenched workmen would by virtue of his retrenchment be entitled to claim retrenchment compensation in addition to gratuity because industrial adjudication has generally taken the view that the payment of retrenchment compensation cannot affect the workmen s claim for gratuity In fact the whole object of granting retrenchment com pensation is to enable the workman to keep his gratuity safe and unused so that it may be available to him after his retirement Thus the object of granting retrenchment compensation to the employee is very different from the object which gratuity is intended to serve That is why on principle the two schemes are not at all irreconcilable nor even inconsistent they really complement each other and so on considerations of social justice there is no reason why both the claims should not be treated as legitimate The fact that they appear to constitute a double benefit does not affect their validity That is the view which industrial tribunals have generally taken in a large number of reported decisions on this point Let us now refer to some of these decisions and indicate very briefly the broad outlines of the development of industrial law on this subject Whenever industrial tribunals deal with the employees claim for gratuity they consider the financial position of the employer before granting the employees demand for framing a gratuity scheme it is only if they are satisfied that the financial condition of the employer is satisfactory and the burden of the gratuity scheme can be borne by him that they proceed to frame schemes of gratuity and thereby secure for the employees the retirement benefit in the form of gratuity Though awards framing such schemes had been made for some 38 years before 1951 the question of framing a gratuity scheme was carefully examined by the Labour Appellate Tribunal in the case of The Army and Navy Stores Ltd Bombay And Their Workmen 1 The scheme framed in this case directed the payment of gratuity on the following scale 1 On the death of an employee while in the service of the company or on his becoming physically or mentally incapable of further service month s salary or wages for each year of continuous service to be paid to the disabled employee or if he has died to his heirs or legal represen tatives or assigns 2 On voluntary retirement or resignation of an employee after 15 years continuous service 12 month s salary or wages for each year of continuous service 3 On termination of service by the company month s salary or wages for each year of completed service Under this scheme gratuity was not however payable to any employee dismissed for misconduct This scheme has been generally treated as a model scheme in all subsequent disputes about gratuity It also appears that the benefit of gratuity schemes has been generally given even to workmen whose services have been terminated and who have thereby become entitled to retrenchment compensation also In Bangalore Woollen Cotton and Silk Mills Co Ltd And Binny Mills Labour Association 2 the Labour Appellate Tribunal gave permission to the company to retrench 179 workmen subject to the condition that the workmen sought to be retrenched shall be paid by way of retrenchment relief a sum equivalent to one month s basic wage for every year of completed service in the company and the basic wage on which such calculation is to be made shall be the last basic wage prior to the grant of this permission It also made it clear that the grant of such retrenchment relief shall not in any way tend to prejudice the issue 1 2 39 of a gratuity scheme which was before the adjudicator and to which the adjudicator was directed to apply an altogether independent mind unaffected by the decision of the Labour Appellate Tribunal It may however be conceded that sometimes though rarely tribunals have thought it fit not to grant gratuity in cases of workmen whose services have been terminated on the ground that they would be entitled receive compensation under the Act But it is not disputed that this dissenting note has been struck only in a few cases Vide Chemical Industrial and Pharmaceutical Laboratory Ltd And Their Workmen 1 Speaking generally subject to the capacity of the employer to pay workmen have been given the benefit of both retrenchment compensation and gratuity by industrial awards prior to the enactment of section 25F of the Act This question was elaborately considered by the Labour Appellate Tribunal in the appeals against the award of All India Industrial Tribunal Bank Disputes where it has been held that the award of retrenchment compensation cannot adversely affect the claim for gratuity The two claims are made for entirely different reasons and in a proper case both the claims can be awarded The measure of compensation however varied from case to case and the awards made in that behalf naturally were not always uniform But it does appear that the determination of the quantum of retrenchment compensation was generally linked with the period of the past service rendered by the retrenched workman In Rashtriya Mill Mazdoor Sangh and Gold Mohur Mills 2 the Labour Appellate Tribunal accepted the view that the quantum of compensation payable to retrenched workmen should be calculated at the rate of 10 days basic wages plus dearness allowance for each year of service and it also held that no maximum limit should be put on this quantum In the Bombay Gas Co Ltd And Their Workmen3 a detailed scheme was framed for the computation of the retrenchment compensation Those who had completed a year s service but less than three years service 1 2 3 40 got wages for 26 days with dearness allowance and those who had completed three years of service or more got 26 days wages with dearness allowance for each year of service subject to a maximum of 104 days Wages with dearness allowance In The National Industrial Works And Their Workmen 1 a still more elaborate scheme was framed for determining the quantum of compensation Thus it would be seen that the result of industrial decisions was that workmen were held entitled both to gratuity and compensation on retrenchment and the amount of retrenchment compensation was measured by reference to the period of service rendered by the retrenched employee It may however be stated that industrial decisions on the twin topics of gratuity and retrenchment compensation were not always uniform and sometimes they disclosed an element of uncertainty and perhaps even ambiguity in their approach While this was the state of industrial decisions on this point Ordinance V was promulgated on October 24 1953 By section 25E the Ordinance prescribed conditions precedent to retrenchment of workmen One of the conditions thus prescribed by section 25Eb was that before a workman is retrenched he must be paid at the time of retrenchment gratuity which shall be equivalent to 15 days average pay for every completed year of service or any part thereof in excess of six months This Ordinance was followed by Act 43 of 1953 which is deemed to have come into force on October 24 1953 It is by this amending Act that section 25F has been introduced in the Act Section 25Fb is in the same terms as section 25Eb of the Ordinance except that for the word gratuity the expression retrenchment compensation has been substituted We may incidentally mention the fact that in the statement of aims and objects of the Act it was observed that in regard to retrenchment the bill provides that a workman who had been in continuous employment for not less than one year under the employer shall not be retrenched until he has been given one month s notice in writing or one 1 41 month s wages in lieu of such notice and also a gratuity calculated at 15 days average pay for every completed year of service or any part thereof in excess of six months The appellant s case is that after section 25F was enacted there is no longer any scope for framing gratuity schemes in addition to the statuory retrenchment compensation for retrenched employees In support of this contention the appellant sought to rely on the fact that both in section 25Eb of the Ordinance and the statement of aims and objects of the amending Act the word gratuity has been used and not retrenchment compensation It is obvious that for construing section 25F the words used in the statement about the aims and objects of the Act are not relevant and in regard to the use of the word gratuity in section 25Eb of the Ordinance it is significant that the said word has been deliberately omitted and the words retrenchment compensation have been used in its place by section 25F Therefore it would not be possible to determine the character of the payment statutorily prescribed by section 25F by reference to the word gratuity used either by the Ordinance or in the statement about the aims and objects of the Act If we have to decide the character of the payment merely by the words used in describing it then the words used section 25F are retrenchment compensation and not gratuity But apart from the mere use of words there can be no doubt that section 25F is intended to provide compensation to retrenched workmen solely on account of the difficulties which they have to face on their retrenchment It is well known that at the time when the Ordinance was issued the problem of retrenchment had become widespread and acute and Legislature thought it necessary to step in and make a statutory provision for the payment of adequate retrenchment compensation Legislature knew that retrenchment compensation was being awarded by industrial tribunals but it must have thought that in determining the amount of compensation the tribunals considered a variety of relevant factors with the result that there was no uniformity or certainty in the matter and so 6 42 it decided to standardise the payment of compensation by prescribing a statutory rule in that behalf The enactment of section 25F thus merely standardises the payment of retrenchment compensation and nothing more If retrenchment compensation could be claimed by the employees in addition to gratuity prior to the enactment of section 25F there is no reason why a similar claim cannot be made by them subsequent to its enactment It is then urged that in determining the amount of compensation payable to a retrenched workman the length of his past service has been taken into account and it is pointed out that schemes of gratuity also provide for payment of gratuity on similar considerations and adopt a similar measure As we have already pointed out even before section 25F was enacted tribunals were adopting similar methods in determining the amount of retrenchment compensation and so the mere fact that the length of the past service of the retrenched workman is made the basis for computing retrenchment compensation cannot clothe retrench ment compensation with the character of gratuity The claims for retrenchment compensation and gratuity proceed on different considerations and it would be impossible to bold that the grant of one excludes the claim or grant of the other It is true that a retrenched workman would get both the retrenchment compensation and gratuity and in a sense on his retrenchment he would get more than what other workmen with corresponding length of service would get on their retirement but it must be remembered that the retrenched workman gets compensation because involuntarily he has been forced to face unemployment and it is to enable him to tide over the period of unemployment that retrenchment compensation is paid to him So on the general contention raised before us that the employees are not entitled to claim the double benefit of gratuity and retrenchment compensation there can be only one answerand that is that there is no conflict between the two claims and industrial tribunals are right in recognising that both claims can be entertained and 43 granted and reasonable gratuity schemes can and should be framed even after the enactment of section 25F in the Act In this connection it would be relevant to refer to the definition of wages under section 2rr of the Act inasmuch as it excludes any gratuity payable on the termination of the employee s service This shows that Legislature was aware that gratuity can be claimed by employees and is often awarded to them If Legislature had intended that the statutory retrenchment compensation provided for by section 25F should affect the employees claim for gratuity it would have expressly made a suitable provision in that behalf Legislature makes such provisions when it thinks necessary to do so Section 17 of the Employees Provident Funds Act 1952 Act 19 of 1952 for instance confers on the appropriate Government power to exempt from the operation of all or any of the provisions of the scheme establishments which have already introduced provident fund benefits which on the whole are not less favourable to the employees than the benefits provided under this Act In the absence of any such provision in the it would be unreasonable to hold that the mere enactment of section 25F either ousts the jurisdiction of industrial tribunals to entertain claims for gratuity schemes or makes it improper or unjust to frame such schemes for all employees including those who are retrenched So far we have dealt with the general question as it arose on the contentions of the parties but in fairness we must add that the learned Solicitor General conceded that he could not urge that as a matter of law the point raised by his client should be answered in his favour He however strenuously urged that in framing gratuity schemes industrial tribunals should make appropriate provision for giving gratuity to retrenched workmen on a basis different from that on which gratuity to other workmen is calculated The argument is that since the retrenched workmen get statutory compensation on a very liberal scale they should not get gratuity at the rates fixed by the scheme for other workmen They may and should get gratuity 44 but at a lesser rate and on less generous terms and conditions Indeed he suggested that we should make suitable amendments in the gratuity scheme framed by the appellate tribunal in that behalf We do not think we can accede to this request Whether or not a twofold scheme of gratuity should be framed one applicable to retrenched workmen and the other to the rest is a matter which may if necessary be raised before the tribunal in a proper case Besides it may be pertinent to observe that the question as presented in this form is not one of general importance for in the present state of our economy which has received and is receiving the stimulus of national plans our industries may not have to face the problem of retrenchment on an appreciable or extensive scale but apart from this consideration we cannot entertain or decide the point raised by the learned Solicitor General in an appeal under article 136 Before we part with this appeal we ought to refer to another aspect of the matter which our present decision does not consider or decide It is likely that gratuity schemes framed by consent or by awards may provide for payment of compensation to retrenched workmen either in lieu of or in addition to gratuity in such cases the question as to whether the retrenched workmen can claim the benefit of such a scheme in addition to the retrenchment compensation under section 25F would depend on the construction of the material terms of the relevant scheme considered in the light of the provisions of section 25F of the Act In the present appeal we are not called upon to consider such a question Therefore our decision has and can have no reference to cases which would fall to be decided under section 25F of the Act In the result the appeal fails and is dismissed with costs Appeal dismissed

The appellant who had been a contractor in Burma in response to an advertisement issued in August 1942 by the evacuee Government of Burma then functioning at Simla inviting claims from contractors for works of construction and repairs executed by them submitted claims aggregating to several lacs of rupees The Government of Burma sent these claims for verification to Major Henderson at Jhansi in March and May 1943 as he was the officer who had knowledge of these matters He certified many of these claims to be correct and on his certification the Government of Burma sanctioned the claims and directed the Controller of Military claims at Kolhapur to pay the amounts On the request of the appellant cheques drawn on the Imperial Bank of India at Lahore were posted to him from Kolhapur and they were encashed at Lahore The largeness of such claims aroused the suspicions of the Government and it was discovered that the claims made by the appellant were false He was tried in several trials under section 420 of the Indian Penal Code along with Henderson charged under section 420109 of the Code for abetment of those offences before a special Tribunal at Lahore functioning 90 under Ordinance No XXIX of 1943 as amended by ordinance No XII of 1945 After the partition of India the trials by the Special Tribunal took place at Simla The appellant was convicted at these trials and sentenced to imprisonment ranging from Punjab one year to three years and payment of fines of various amounts The Tribunal divided the fines into ordinary and compulsory the latter by virtue of s 10 of the Ordinance which prescribed a minimum fine equal to the amount procured by the offence In default of payment of the ordinary fines it directed the appellant to undergo further imprisonment for certain periods but there was no such direction with respect to the compulsory fines The High Court on appeal affirmed the convictions but varied the sentences by reducing the term of imprisonment and setting aside the compulsory fines The appellant as also the State of Punjab appealed to this Court It was contended on behalf of the appellant that 1 the offences having been committed at Kolhapur then outside British India the trial at Simla in the absence of any certificate or sanction given under section 188 of the Code of Criminal Procedure was illegal 2 the joint trial of the appellant and Henderson at Simla was also illegal 3 SS 2341 and 239b of the Code could not be combined to try a person charged with three offences of cheating with another charged with abetment in respect thereof in a single trial and 4 sanction under section 197 of the Code was necessary for the prosecution of Henderson and the absence of such sanction vitiated the joint trial The contention of the State in the appeals preferred by it was that the imposition of the compulsory fines by the Tribunal was perfectly valid in law and the High Court was in error in setting aside the same Held that before the provisions of section 188 of the Code of Criminal Procedure could apply to a case it was necessary to establish that the crime was committed outside British India In the instant case the misrepresentation by the appellant the false certification by Henderson and the resulting payment having been made respectively at Simla Jhansi and Lahore then in British India no part of the offence could be said to have taken place outside British India The contention that the posting of the cheques at Kolhapur was tantamount to delivery of them to the appellant at Kolhapur the Post Office being the agent of the appellant was wholly misconceived in the facts and circumstances of the case Moreover what might be a relevant consideration as to the place of payment for the purpose of the Income tax Act would not necessarily be relevant for the purposes of a criminal case The Commissioner of Income tax Bombay South Bombay vs Messrs Ogle Glass Works Ltd Ogale Wadi 1955 1 SCR 185 held inapplicale The Commissioner of Income tax Bihar Orissa vs Messrs Patney Co referred to 91 The words an offence in section 239b of the Code which is singular must by virtue of section 13 of the General Clauses Act 1879 include the plural and therefore a person accused of several offences of the same kind can be tried in a single trial with another accused of abetment thereof The concluding words of section 239 of the Code obviously mean that in framing charges against each of the several persons mentioned in its different clauses not only the provisions relating to the form of charges but also those in respect of joinder of charges should apply Consequently the joint trial of the appellant with the abettor on the charges as framed did not vitiate the trial The provisions of sections 179 and 180 of the Code are wide enough to enable either the court within whose territorial jurisdiction anything was done or the court where the consequences ensued to take cognisance of the matter Under section 179 the appellant could be tried either at Lahore or Simla and under section 180 Henderson could be tried at either of the two places There was therefore no illegality in trying the appellant and Henderson together at Simla Section 420 of the Indian Penal Code read with section 63 of the Code prescribes a fine that is unlimited It was not therefore correct to contend that section 10 of the Ordinance in prescribing the minimum fine imposed a penalty that was greater than what could be inflicted under the former so as to contravene article 201 of the Constitution As section 10 of the Ordinance prescribed a minimum fine no question as to its excessive character could arise and the order of the High Court setting aside the compulsory fines must therefore be set aside and the orders of the Special Tribunal restored Rao Shiv Bahadur Singh and Another vs The State of Vindhya Pradesh and Kedar Nath Bajoria vs The State of West Bengal explained and distinguished Per Sinha CJ Imam Wanchoo and Das Gupta JJOffences such as bribery and cheating or abetment thereof cannot by their very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of their official duties Such offences can have Do reasonable connection with the performance of their duties as such no sanction therefore is necessary under section 197 of the Code of Criminal Procedure for their prosecution Amrik Singh vs The State of PEPSU and Matajog Dobey vs H C Bhari referred to Per Kapur J In order that the protection afforded by section 197 of the Code of Criminal Procedure might be available to Henderson it was not enough to show that he was a Major in the Army but it must also be shown that he was an officer not removable from office except with the sanction of the Central Government and that in certifying the appellant s claims which was the crux of the offence charged against him he was acting or purporting to act in the discharge of his official duty 92 The true test as to whether a public servant was acting or purporting to act in discharge of his duties would be whether the act complained of was directly connected with his official duties or it was done in the discharge of his official duties or it was so integrally connected with or attached to his office as to be inseparable from it Gill vs The King 75 IA 41 Albert West Meads vs The King 75 IA 815 Phenindra Chandra Neogy vs The King 76 IA 10 Hori Ram Singh vs The Crown Amrik Singh vs The State of PEPSU Ronald Wood Mathams vs State of West Bengal and Shree Kanthiah Ramayya Munipalli vs The State of Bombay referred to As there was no evidence in the instant case to show that Henderson was an officer as contemplated by section 197 of the Code and that in verifying the appellant s claims he was discharging his official duty section 197 could not apply

Civil Appeal No28 of 1958 Appeal from the judgment and order dated April 17 1956 of the Allahabad High Court in Special Appeal No 20 of 1954 arising out of the judgment and order dated February 10 1954 of the said High Court Company Jurisdiction in Application No 29 of 1953Company case No 24 of 1949 October 30 H N Sanyal Additional Solicitor General of India and N C Sen for the appellant Rule 97 of the High Court Company Rules merely gives the landlord the right to claim payment of rent and nothing more It does not give any priority to him The question of priority is dealt with in section 230 which gives no priority to the landlord Shah J Top priority is given to costs and expenses of winding up under sections 193 and 2033 191 We offered possession to the landlord and we never used the premises for the purpose of liquidation after the winding up order Therefore the rent claimed by the landlord cannot he treated to have been incurred as costs and expenses of winding up The real question for decision is whether we used the premises for the purpose of liquidation It has been found by the High Court that we did not do so There is a rule under the English Companies Act which is identical to our r 97 but none of the English cases have gone so far as to make the liquidators liable for the rent claimed by the landlord even if the premises were not used for the purpose of liquidation In re Silkstone and Dodworth Coal and Iron Company 17 Ch D 158 In re Oak Pits Colliery Company and In re Levy and Company cited The Oak Pits case definitely holds that the landlord is not entitled to full rent accruing since the commencement of the winding up if the liquidator has done nothing except abstain from trying to get rid of the property This principle should be applied in this case and r 97 should not be so interpreted as to give any priority to the landlord A V Viswanatha Sastri Mrs E Udayaratnam and section section Shukla for the respondent By a previous order Mootham J who was then dealing with company matters in the High Court passed an order to the effect that the landlord was entitled to recover rent from the bank from the date of winding up to the date when the liquidators would give him possession and thus terminate the tenancy This order was virtually passed under section 45B of the Banking Companies Act and the respondent was entitled to payment according to the tenor of the order which is that he should be paid in full Shah I How can a decree drawn up as a result of that order be executed The amount has to be proved H N Sanyal Additional Solicitor General of India and N C Sen in reply Mootham J s order simply purports to declare the liability of the liquidators but does not decide the question of priority November 10 The Judgment of the Court was delivered by SHAH J The U P Union Bank Ltd which will hereinafter be referred to as the Bank was in occupation as a tenant of a building in Agra town belonging to the respondent at a monthly rental of Rs 325 and Rs 10 as municipal taxes The Bank made default in paying the rent accruing due and the respondent filed suit No 810 of 1949 in the court of the Munsiff 192 at Agra for a decree for rent for three months and obtained an order of attachment before judgment on the movable property of the Bank The Munsiff by his decree dated December 2 1949 decreed the suit and confirmed the order of attachment before judgment In the meanwhile on a petition dated September 13 1949 the Bank was ordered to be wound up by the High Court of Judicature at Allahabad and the appellants were appointed liquidators of the Bank The employees of the Bank had vacated the premises on September 10 1949 but the property of the Bank which was attached was with the consent of the respondent stored by the Commissioner appointed by the Munsiff s court in the Banking hall which was sealed by that officer A part of the premises was it appears occupied by some trespassers The Official Liquidators called upon the respondent to take possession of the premises but the latter declined to do so unless vacant possession of the entire premises was given to him On November 301950 the respondent applied to the High Court for permission to file a suit for ejectment and for arrears of rent due since September 30 1949 Mr Justice Mootham who heard the application declined to grant permission holding that the claim which the respondent intended to put forward against the Official Liquidators in the course of the proposed suit may be adjudicated upon in the winding up proceeding and with the consent of parties the learned Judge proceeded to decide that claim By order dated August 30 1951 Mr Justice Mootham I hold that the petitioner is entitled to recover rent from the Bank at the rate of Rs 325 per mensem from 1st October 1949 upto the date on which the Official Liquidators give the petitioner the landlord such possession of the premises as will in law terminate the Bank s tenancy Against this order the Official Liquidators preferred an appeal being special appeal No 17 of 1952 to a Division Bench of the High Court 193 On April 23 1953 the respondent applied to the Joint Registrar of the High Court to issue a certificate of non satisfaction and to transfer the order to the court of the Civil Judge of Allahabad for execution The Joint Registrar issued a certificate of non satisfaction of the order and directed that the same be transmitted to the District Judge Allahabad for execution The respondent filed an application for execution in the court of the Civil Judge Allahabad and obtained an order for attachment of an amount of Rs 12000 lying to the credit of the Official Liquid ators in the Allahabad Bank The Official Liquidators thereupon applied to the High Court praying that the execution proceedings pending in the court of the Civil Judge Allahabad be declared void and the order of attachment of the fund in the account of the Official Liquidators passed by the Civil Judge be quashed Mr Justice Brij Mohan Lall who heard the application held that the proceeding commenced against the Official Liquidators without the sanction of the court under sections 171 and 232 cl I of the Indian Companies Act 1913 and the attachment ordered thereunder were void and directed that the certificate of non satisfaction be recalled Against this order the respondent preferred a special appeal to the High Court being appeal No 20 of 1954 Appeals Nos 17 of 1952 and 20 of 1954 were then heard Appeal No 17 of 1952 was dismissed and by an order passed on April 17 1956 the High Court partially modified the order of Mr Justice Brij Mohan Lall and directed the Official Liquidators to pay to the respondent in full the amount that had fallen due to him after October 1 1949 The High Court was of the view that the Official Liquidators having retained the Bank s premises in their occupation by virtue of the proviso to r 97 framed by the High Court the respondent was entitled to receive the rent due to him in full and was not liable to share the assets of the Bank pro rata with the other ordinary creditors Against the order passed by the High Court this appeal has been preferred with the certificate of the High Court 25 194 By his order Mr Justice Mootham merely declared the liability of the Bank to pay the rent accrued due since October 1 1949 there is no direction for payment of the amount and it is not necessary to consider the plea raised by counsel for the respondent that the order being virtually one under section 45 B of the Banking Companies Act the respondent was entitled to payment according to the tenor of the order The order in terms declares the liability and does not decide any question of priority between the respondent and other creditors of the Bank By section 647 of the Companies Act No 1 of 1957 the winding up of the Bank having commenced before that Act was enacted the provisions with respect to the winding up contained in the Indian Companies Act No VII of 1913 continue to apply to the Bank in the same manner and in the same circumstances as if Act 1 of 1957 had not been passed By section 230 of the Indian Companies Act 1913 provision is made for payment of specified categories of debts in the winding up in priority to all other debts but rent due to the landlord is not one of such debts to which priority is given by section 230 The High Court held that in as much as by r 97 of the Company Rules it was provided When any rent or other payment falls due at stated periods and the order or resolution to wind up is made at any time other than one of such periods the persons entitled to the rent or payment may prove for a proportionate part thereof up to the date of the winding up order or resolution as if the rent or payment grew due from day to day Provided that where the Official Liquidator remains in occupation of premises demised to a company which is being wound up nothing herein contained shall prejudice or affect the right of the landlord of such premises to claim payment by the company or the Official Liquidator of rent during the period of the company s or the Official Liquidator s occupation for the rent accruing due in respect of the premises which remained in the occupation of the Official 195 Liquidators the respondent was entitled to preferential payment The operative part of the rule deals with the rent or other payment in arrears till the date of winding up By the proviso it is declared that the right of the landlord to claim payment by the company of the rent accruing due thereafter is not to prejudiced The proviso merely affirms the right of the landlord to claim payment of rent accruing due since the date of winding up It does not deal with any question of priority in payment of debts By section 246 of the Indian Companies Act 1913 power is conferred upon the High Court to make rules consistent with the Act and the Code of Civil Procedure concerning the mode of proceedings to be had for winding up of the company and certain other matters The Legislature has by section 230 prescribed that certain specified categories of debts shall rank for priority over other debts due by the company and it is not within the competence of the High Court to prescribe by rule a category for priority in payment which is not included in that section By section 193 of the Act the court has in the event of the assets being insuffiicient to satisfy the liabilities indisputably power to make an order for payment out of the assets of the costs charges and expenses incurred in the winding up in such order of priority as the court thinks fit and in exercise of the power conferred by section 230 sub cl 3 the court may direct the company to retain such sums as may be necessary for the costs and expenses of the winding up of the company before discharging even the debts in respect of which priority is prescribed by section 230 If therefore there is a debt which may reasonably fall within the description of costs and expenses of winding up of the company the court may provide for priority in payment of that debt as it thinks just In the winding up of the company it is open to the liquidators to disclaim land burdened with onerous covenants of shares or stock in companies of unprofitable contracts or of any other property that is unsaleable or not readily saleable The disclaimer operates to determine as from the date of disclaimer 196 the rights interests and liabilities of the company and the property of the company in or in respect of the property disclaimed By section 230 A cl 4 liberty is reserved to persons interested in the property requirng the liquidator to decide whether he will or will not disclaim It is also open to the court under sub section 5 of section 230 A on the application of any person entitled to the benefit or subject to the burden of a contract made with the company to make an order rescinding the contract on such terms as to payment of damages for non performance of contracts It is evident that on the winding up outstanding contracts of the company do not become ipso facto inoperative The contracts remain binding until disclaimed or rescinded in the manner provided by section 230 A but the liability incurred under these contracts is merely an ordinary debt which ranks for claim to payment pro rata along with other creditors If the debt be regarded reasonably as falling within the description of costs and expenses of winding up of the company it is open to the court to direct that preferential payment in respect thereof be made otherwise the debt will be claimable out of the assets of the company pro rata with other ordinary creditors Distinction has been made by the courts in England where the relevant provisions of the Companies Act are substantially the same that if the liquidator continues in possession of leaseholds for the purpose of the better realization of assets the lessor will be entitled to payment of the rent in full as part of the expenses properly incurred by the liquidator but as observed by Lord Justice Lindley In re Oak Pits Colliery Companys 1 No authority has yet gone the length of deciding that a landlord is entitled to distrain for or be paid in full rent accruing since the commencement of the winding up where the liquidator has done nothing except abstain from trying to get rid of the property which the company holds as lessee Evidently a distinction is made between property which remains in the occupation of the liquidator 1 1882 Ch D 321 331 197 after the winding up when the occupation is shown to be for the purpose of liquidation and property which merely remain with the liquidator he having abstained from trying to got rid of the same and It does not appear or is not shown that the property was used for the purpose of winding up The High Court held on the fact that the liquidators had remained in occupation of the premises not for the purpose of winding up but because they could not think of any suitable method of getting rid of the premises in spite of all their desire to do so It was pointed out that the Bank had closed its business and the liquidators were not carrying on any business after the winding tip and the properties were not used by the liquidators for the purpose of liquidation This conclusion of the High Court on the evidence has not been challenged The property not having remained with the liquidators for the purpose of liquidation unless the court passes an order holding that the debt incurred was part of the costs and expenses of liquidation the rent accruing due since the date of the winding cannot be claimed in priority over other ordinary debts We are therefore unable to agree with the High Court that under r 97 of the Company Rules if the premises remained in the occupation of the liquidators not for the purpose of winding up the landlord is entitled to priority in respect of payment of rent On the view taken by us the appeal will be allowed the order passed by the High Court set aside and the order passed by Mr Justice Brij Mohan Lall restored with costs in this Court and in the High Court Appeal allowed

Sub section 1a of section 58 of the provides A stage carriage permit or a contract carriage permit other than a temporary permit issued under section 62 shall be effective without renewal for such period not less than three years and not more than five years as the Regional Transport Authority may specify in the permit Sub section 2 provides A permit may be renewed on an application made and dis posed of as if it were an application for a permit Provided that The stage carriage permits of the petitioners were ending on March 31 1958 and they applied to the Regional Transport Authority Bangalore for a renewal of them The Transport Department of the Mysore State Government opposed such renewal and applied that fresh permits for the routes in question might be granted to it as the State Government intended to nationalise the transport services The Authority however dismissed the applications of both the contending parties but on appeal its orders were set aside and the matter was remanded for a fresh decision A scheme under section 68C of Ch IVA of the Act was in the meantime published and approved by the State Government which was later on quashed by the High Court at the instance of the petitioners The Authority passed orders renewing the permits of the petitioners for a period of one year from April 1 1958 to March 31 1959 Appeals against the said orders having proved abortive the petitioners applied to the 147 High Court under articles 226 and 227 of the Constitution and those applications were summarily dismissed and certificates to appeal to this Court refused The petitioners thereupon applied to this Court under article 32 of the Constitution The question for determination was whether on a proper construction of sub section 1a and sub section 2 of section 58 of the Act read together the period of renewal was to be the same as provided for the grant of permits under the former and the Authority in renewing a permit was bound to specify the period of such renewal It was contended on behalf of the Department that even supposing that a renewal must be for the same period as provided for the original grant this Court by writ could do no more than quash the order made by the Authority leaving it to decide the question of renewal in accordance with the law as laid down by it Held per Sinha CJ Imam Wanchoo and Das Gupta JJ that under section 58 of the properly construed the period for which a permit could be renewed under sub section 2 of that section must be not less than three years and not more than five years as provided for the grant of a permit under sub section 1a thereof and the Regional Transport Authority in exercising its discretion to grant a renewal where it chose to do so must specify the period of renewal accordingly The words without renewal occurring in sub section 1a do not signify a contrary intention V C K Bus Service Ltd vs The Regional Transport Authority Coimbatore distinguished Since in the instant case the intention of the Authority to grant renewal was clear but in doing so it had under a misapprehension of the law limited the renewal to one year only it was open to this Court to sever the legal part of its order from the illegal and quash the latter R M D Chamarbaughwalla vs The Union of India and Shewpujanrai Indrasanrai Ltd vs The Collector of Customs referred to Since this Court was not bound by the technical rules relating to issue of writs by English Courts a direction in the nature of mandamus must issue requiring the Authority to specify the period of renewal in accordance with the law as laid down by this Court T C Basappa vs T Nagappa relied on Per Kapur J In cases such as the one under review the power of judicial review possessed by this Court under article 32 of the Constitution extends to quashing and not substituting an order in place of what an Administrative tribunal has done or to direct what it should do All that the Court can do is to quash the order and leave it to the tribunal to reconsider the matter and to exercise its 148 jurisdiction keeping in view the law laid down by the Court In issuing such orders the courts would act in consonance with the broad and fundamental principles governing the granting of writs in English Law Consequently even assuming that in renewing a permit the Regional Authority had to do so for a period of not less than three and not more than five years this Court would only quash the orders passed by the Regional Transport Authority in the present case and leave it to that Authority to reconsider the matter in the light of the decision of this Court Associated Provincial Picture Houses Ltd vs Wednesbury Corporation The King vs Willesden justices Ex Parte Utley Veerappa Pillai vs Raman and Raman Ltd and Basappa vs Nagappa referred to Shewpujanrai Indrasamrai Ltd vs The Collector of Customs explained and distinguished R M D Chamarbaugwalla vs Union of India 1959 SCR 930 held inapplicable Kochunni vs State of Madras and United Motors Transport Co vs Sree Lakshmi Motor Transport Co Lid distinguished

ON Criminal Appeal No 72 of 1959 Appeal by special leave from the judgment and order dated the 2nd April 1959 of the Bombay High Court at Rajkot in Confirmation Case No 2 of 1959 and Crl Appeal No 32 of 1959 arising out of the judgment and order dated February 18 1959 of the Court of the Sessions Judge of Madhya Saurashtra at Rajkot in Sessions Case No 18 of 1958 174 Jai Gopal Sethi B L Kohli and K L Hathi for the appellants H J Umrigar D Gupta for R H Dhebar for the respondent November 10 The Judgment of the Court was delivered by section K DAS J This is an appeal by special leave The two appellants are Mepa Dana and Vashram Dana The learned Sessions Judge of Rajkot tried them along with ten other persons for various offences under the Indian Penal Code including the offence of murder punishable under section 302 read with sections 149 and 34 of the Indian Penal Code Of the twelve persons whom he tried the learned Sessions Judge acquitted seven He convicted five of the accused persons The two appellants were sentenced to death having been found guilty of the offence under section 302 read with section 149 as also section 302 read with section 34 Indian Penal Code the other three convicted persons were sentenced to imprisonment for life No separate sentences were passed for the minor offences alleged to have been committed by them All the convicted persons preferred an appeal to the High Court of Bombay There was also a reference by the Sessions Judge under section 374 Code of Criminal Procedure for confirmation of the sentence of death passed on the two appellants The appeal and the reference were heard together and by Its judgment pronounced on April 2 1959 the High Court affirmed the conviction of four of the convicted persons namely the two appellants and two other convicted persons who were accused nos 1 and 11 in the trial court The High Court allowed the appeal of accused No 8 and set aside the conviction and sentence passed against him It is worthy of note here that as a result of the judgment pronounced by the High Court the number of convicted persons came down to four only We are emphasising this circumstance at this stage because one of the arguments advanced on behalf of the appellants with 175 regard to their convictions for the offence punishable under section 302 read with section 149 centres round this fact We bad earlier stated that the number of persons whom the learned Sessions Judge tried was twelve only However the prosecution case which we shall presently state in a little greater detail was that there were altogether thirteen accused persons who constituted the unlawful assembly and committed the offences in question in prosecution of the common object of the assembly or in furtherance of the common intention of all One of them however was a juvenile and was tried by a Juvenile Court under the Sau rashtra Children Act 1956 That is why the number of accused person before the learned Sessions Judge was twelve only The case record before us does not disclose the result of the trial in the Juvenile Court though it has been stated on behalf of the appellants that that trial ended in an acquittal It is necessary now to state what the prosecution case against the twelve accused persons was There is a village called Nani Kundal within police station Babra in the district of Madhya Saurashtra In that village lived one Shavshi who had four sons called Kurji Harji Mitha and Virji One Dana Bharwad described as accused No 1 in the trial court also lived in the same village He had three sons called Amra Mepa and Vashram We have already stated that Mepa and Vashram are the two appellants before us In the beginning of the year 1958 Amra was murdered and Harji and Mitha were tried for that murder by the learned Sessions Judge of Rajkot He however acquitted them on May 14 1958 This caused dissatisfaction to Dana and his two sons Mepa and Vashram On July 141958 Harji Mitha and Virji went to a place west of the village where they had a cluster of huts This place was north of another cluster of huts belonging to Dana When the aforesaid three brothers were engaged in some agricultural operations they were attacked by a mob of persons led by the two appellants who were armed with axes Harji was pounced upon and felled by blows He managed to get up and ran towards the 176 village Simultaneously Mitha and Virji also ran more or less in the same direction The three brothers were however pursued Kurji the fourth brother and other relatives of Shavshi ran towards the place of occurrence Kurji was the first to arrive and the prosecution case was that Kurji was struck down by the two appellants and other members of the unlawful assembly He died then and there Harji was then assaulted for the second time and he also fell down and died then and there Lastly Mitha was surrounded and assaulted He also fell down and died there The mother of the four brothers Kurji Harji Mitha and Virji as soon as she came to know of the death of three of her sons arrived at the place of occurrence She then went to the shop of one Kalidas a leading resident of the village There she met one Arjan who was a village chowkidar Arjan was informed of what had happened and he went to village Barwala where a police out post was situated He informed one Anantrai who was in charge of that out post Anantrai prepared an occurence report which he sent to the officer in charge of Babra Police Station This was the first information of the case Babra is situate at a distance of about thirteen or fourteen miles from village Nani Kundal and the Sub Inspector of Police arrived at the village at about 10 45 pm Thereafter an investigation was held and the thirteen accused persons were sent up for trial Substantially the defence of the appellants was that they had been falsely implicated out of enemity and had nothing to do with the murder of the three brothers Kurji Harji and Mitha The case of Dana accused No 1 was that on the day in question his son Mepa was pursued and attacked by Harji Mitha and Kurji Thereupon Dana went there to save his son Mepa and received an injury on his left band He then ran away from the scene of occurrence He disclaimed any knowledge of the attack on Kurji Harji and Mitha The prosecution examined ten eye witnesses Of these seven were relatives of Shavshi and three 177 namely Nagji Bhura and Dada were independent persons The learned Sessions Judge accepted substantially the evidence of the ten eyewitnesses but decided not to act on the testimony of the relatives of Shavshi unless there was other independent corroborative evidence or circumstance Proceeding on that basis the learned Sessions Judge found that the three independent witnesses Nagji Bhura and Dada corroborated the evidence of the relatives with regard to four of the five accused persons namely the two appellants and accused nos 1 and 11 As against accused No 8 the learned Sessions Judge relied upon the evidence relating to the discovery of an axe which was stained with human blood as a corroborative circumstance In the result he convicted the two appellants and accused nos 1 8 and 11 The High Court was not satisfied with the evidence against accused No 8 As to the common object or common intention of the persons who constituted the unlawful assembly it said From the prosecution evidence there is no doubt whatsoever that more than five persons were operating at the scene of offence though the identity of all the persons has not been established except the accused nos 1 2 3 and 11 There is no doubt on the prosecution evidence that more than five persons ie as many as ten to thirteen persons took part in this offence Therefore there is no doubt that these persons had formed themselves into an unlawful assembly From the prosecution evidence it is clear that the common object of these persons was to commit murders and that these persons entertained common intention to murder the victims There is also evidence to show that all these persons carried heavy axes Therefore there is no doubt that the offences under sections 147 148 302149 and 30234 of the Indian Penal Code had been committed and that the accused nos 1 23 and 11 are liable to be convicted for these offences We proceed now to state the arguments which have been advanced before us on behalf of the appellants The main argument is that the conviction of the 23 178 appellants for the offence of murder with the aid of either section 149 or section 34 Indian Penal Code is bad in law and cannot be sustained Learned counsel for the appellants has submitted that his clients are liable to be convicted and punished for the individual acts of assault which are proved against them but in the circumstances of this case they cannot be convicted of the offence of murder This argument learned counsel had developed in two different ways He has pointed out that the prosecution put up a definite case that thirteen named persons formed an unlawful assembly the common object of which was to kill the three brothers earlier named twelve of them were tried by the learned Sessions Judge who acquitted seven and the High Court acquitted one more This brought the number to four but the High Court found that there were more than five persons that is as many as ten to thirteen persons who took part in the offence This finding so learned counsel has submitted amounts to this the four convicted persons formed an unlawful assembly with the necessary common object either with some of the acquitted persons or with certain unspecified persons who were never put on trial on the same indictment and about whom no indication was given by the prosecution either in the charge or in the evidence led His contention is that in view of the finding of the High Court which resulted in the number of convicted persons falling below the required number of five it was not open to the High Court to make out a case of a new unlawful assembly consisting of the four convicted persons and certain unspecified persons nor could any of the acquitted persons be held in spite of the acquittal to be members of an unlawful assembly for their acquittal is good for all purposes and the legal effect of the acquittal is that they were not members of any unlawful assembly Thus learned counsel has contended that the conviction of the appellants for the offence of murder with the aid of section 149 Indian Penal Code is bad in law This is the first of the two ways in which he has developed his argument 179 His second argument wider in scope and embraces both sections 149 and 34 Indian Penal Code and it is this He has pointed out that though the finding is that the two appellants assaulted Harji and Kurji with their axes there is no finding as to who gave the fatal blows to these brothers Kurji had as many as four ante mortem injuries three on the neck and head and one on the arm His death was due to a depressed fracture of the right temporal bone and a fissured fracture of the parietal and occipital bones Harji had has many as thirteen ante mortem injuries including a fracture of the skull So far as Mitha was concerned he had sustained a fracture of the frontal bone of the left side of his head a crushed fracture of the nose and socket of the left eye and a fracture of the maxillar bones on both sides in other words Mitha s skull was practically smashed in The contention of the learned counsel is that in the absence of any finding that the appellants or the convicted persons alone caused the aforesaid fractures by the blows given by them the appellants cannot be held constructively liable either under section 149 or section 34 Indian Penal Code for blows given by some unknown person when the prosecution made no attempt to allege or prove any such case It is argued that even assuming that the convicted persons four in number had the necessary common intention of killing the three brothers none of them would be liable under section 34 Indian Penal Code for the acts of an unknown person or persons who might have given the fatal blows unless the prosecution alleged and proved that the criminal act was done in furtherance of the common intention of the convicted persons and those others whose identity was not known and where thirteen named persons are said to have committed a murder in furtherance of the common intention of all it is not open to the prosecution to say on acquittal of nine of those persons that the remaining four committed the murder merely on the finding that they bad a common intention but without any proof whatsoever that they or any of them gave the fatal blows 180 The two arguments overlap to some extent though the first is applicable specifically in respect of the charge under section 149 Indian Penal Code and the second to both sections 149 and 34 Indian Penal Code We shall presently consider these arguments But before we do so it is necessary to state that much confusion could have been avoided in this case if the two charges one under section 149 and the other under section 34were not mixed up the difference between the two sections has been pointed out in several previous decisions of this Court and though we consider it unnecessary to reiterate that difference we must state that the difference should have been kept in mind and the two charges should not have been rolled up into one as was done in the present case We are satisfied however that no prejudice was caused and the appellants have had a fair trial To go back to the arguments urged on behalf of the appellants it is necessary first to understand clearly what the finding of the final Court of fact is We have earlier quoted that finding in the very words in which the learned Judges of the High Court expressed it That finding stated 1 there was no doubt that more than five persons constituted the unlawful assembly though the identity of all the persons except those four who were convicted was not established 2 that the total number of persons constituting the unlawful assembly was ten to thirteen 3 that all the ten to thirteen persons had the common object and common intention of killing Kurji Harji and Mitha and lastly 4 that the killing was done in prosecution of the common object of the unlawful assembly and in furtherance of the common intention of all and the appellants took a major part in the assault on two of the brothers Kurji and Harji The question that arises now is this in view of these findings of the High Court can it be said that the High Court wrongly applied section 149 because the number of convicted persons was only four We think that the answer must be in the negative We may say at once that the High Court does not find that the unlawful assembly con sisted of the four convicted persons and some of the 181 acquitted persons That clearly is not the finding of the High Court because it says that the identity of all the persons has not been established except that of accused nos 1 2 3 and 11 The finding of the High Court really means that the four convicted persons and some other persons whose identity was not established totalling ten to thirteen in number constituted the unlawful assembly Therefore it is unnecessary in the present case to embark on a discussion as to the legal effect of the acquittal of nine of the accused persons except to state that we may proceed on the footing that the acquittal was good for all purposes and none of those nine persons can now be held to have participated in the crime so that the remaining four persons may be held guilty under section 149 Indian Penal Code That does not however conclude the matter Nothing in law prevented the High Court from finding that the unlawful assembly consisted of the four convicted persons and some unidentified persons who together numbered more than five We have advisedly said Nothing in law etc for whether such a finding can be given or not must depend on the facts of each case and on the evidence led It is really a question of fact to be determined in each case on the evidence given therein Learned counsel for the appellants has argued before us as though it is a matter of law that it was not open to the High Court to come to the finding to which it came because the prosecution case was that thirteen named persons constituted the unlawful assembly We are unable to accept this argument as correct We do not think that there was any such legal bar as is suggested by learned counsel though there may be cases where on the facts proved it will be impossible to reach a finding that the convicted persons less than five in number constituted an unlawful assembly with certain other unspecified persons not mentioned in the charge That consideration apart any mere error omission or irregularity in the charge will not invalidate the finding in this case as a matter of law So far as the finding can be said to have travelled beyond the letters of the 182 charge the appellants have not proved any prejudice and in the absence of prejudice no complaint can now De made of any defect in the charge Learned counsel has then submitted that the finding of the High Court makes out a case of a new unlawful assembly which is different from that suggested by the prosecution case We do not think that that view is correct either The assembly is the same assembly but what has has happened is that the identity of all the members of the unlawful assembly has not been clearly established though the number has been found to be more than five We do not think that it is unusual for witnesses to make mistakes of identity when a large number of persons are concerned in committing a crime in any event it is a question of fact to be decided in each case and is not a question of law Much reliance has been placed by learned counsel for the appellants on the following observations in Archbold s Criminal Pleading Evidence and Practice Thirty fourth edition pp 200 201 Where Several prisoners are included in the same indictment the jury may find one guilty and acquit the others and vice versa But if several are indicted for a riot and the jury acquit all but two they must acquit those two also unless it is charged in the indictment and proved that they committed the riot together with some other person not tried upon that indictment Similar observations occur in Hawkins s Pleas of the Crown 2 Hawk c 47 section 8 That on an indictment for a riot against three or more if a verdict acquit all but two and find them guilty or on an indictment for a conspiracy if the verdict acquit all but one and find him guilty it is repugnant and void as to the two found guilty in the first case and as to the one found guilty in the second unless the indictment charge them with having made such a riot or conspiracy simul cum aliis juratoribus ignotis for otherwise it appears that the defendants are found guilty of an offence 183 whereof it is impossible that they should be guilty for there can be no riot where there are no more persons than two nor can there be a conspiracy where there is no partner Yet it seems agreed that if twenty persons are indicted for a riot or conspiracy and any three found guilty of the riot or any two of the conspiracy the verdict is good We do not think that these observations help the appellants in the present case They relate to the effect of a verdict of the jury at common law which may be either a general or b partial or c special In a special verdict the facts of the case are found by the jury the legal inference to be derived from them being referred to the court If therefore the jury find only one man guilty of conspiracy and two guilty of a riot they are really finding the defendants to use the phraseology of Hawkins guilty of an offence whereof it is impossible that they should be guilty for there can be no riot where there are no more persons than two nor can there be a conspiracy where there is no partner Obviously the observations refer to those cases where the verdict of the jury does not and cannot imply that there were more than one conspirator or more than two persons in a riot This is made clear by the further statement that if twenty persons are indicted for a riot or conspiracy and any three found guilty of the riot or any two of the conspiracy the verdict is good The legal position is clearly and succinctly put in Harris s Criminal Law Nineteenth edition p 474 When several persons are joined in one indictment the jury may convict some and acquit others In some cases however the acquittal of one may render the conviction of the other or others impossible in conspiracy for example at least two of the prisoners must be convicted and in riot at least three unless those convicted are charged with having been engaged in the conspiracy or riot with some other person or persons not tried upon that indictment In Topan Das vs The State of Bombay 1 this Court proceeded on the same principle viz that according to 1 184 the definition of criminal conspiracy in section 120 AIndian Penal Code two or more persons must be partners to such an agreement and one person alone can never be held guilty of criminal conspiracy for the simple reason that he cannot conspire with himself That was a case in which four named individuals were charged with having committed criminal conspiracy but three were acquitted of the charge The distinction between that case and the case under our consideration lies in this in Topan Das s case it was not possible to find after the acquittal of three persons out of the four charged that there was any partner to the conspiracy whereas in the case before us the finding is that there were ten to thirteen persons who constituted the unlawful assembly with the necessary common object but the identity of four only has been established The point under discussion arose in the decisions of the Allahabad High Court viz Harchanda vs Rex 1 and Gulab vs State 2 the latter over riding the earlier decision The decision in Gulab s case proceeded however on the footing that it was open to the appellate court to find that some of the acquitted persons had been wrongly acquitted although it could not interfere with such acquittal in the absence of an appeal by the State Government an aspect regarding which it is not necessary to say anything in this case There are two other decisions one of the Federal Court and the other of this Court In Kapildeo Singh vs The King 3 the prosecution case was that 60 or 70 men constituted the unlawful assembly but the appellant in that case was charged with thirteen others with having committed certain offences in furtherance of the common object of the unlawful assembly The appellant was found guilty but the thirteen others who were charged along with the appellant were acquitted as they were not properly identified One of the contentions raised in the Federal Court was that in all fourteen persons having been charged with rioting and thirteen of them having been acquitted 1 All 2 All 726 3 185 it could not be hold that there was any unlawful assembly of five or more pet sons whose common object was to commit an offence With regard to this contention it was observed at pp 837 838 The essential question in a case under section 147 is whether there was an unlawful assembly as defined in section 141 I P C of five or more than five persons The identity of the persons comprising the assembly is a matter relating to the determination of the guilt of the individual accused and even when it is possible to convict less than five persons only section 147 still applies if upon the evidence in the case the court is able to hold that the person or persons who have been found guilty were members of an assembly of five or more persons known or unknown identified or unidentified In the present case there is such a finding and that concludes the matter We consider that these observations apply with equal force in the present case and we do not think that the distinction sought to be made by learned counsel for the appellant on the basis that in Kapildeo s case 1 the prosecution allegation was that there were 60 or 70 men in the unlawful assembly makes any difference in the legal position The same view was expressed again by this Court in Dalip Singh vs State of Punjab 2 Before section 149 can be called in aid the court must find with certainty that there were at least five persons sharing the common object A finding that three of them may or may not have been there betrays uncertainty on this vital point and it consequently becomes impossible to allow the conviction to rest on this uncertain foundation This is not to say that five persons must always be convicted before section 149 can be applied There are cases and cases It is possible in some cases for Judges to conclude that though five were unquestionably there the identity of one or more is in doubt In that case a conviction of the rest with the aid of section 149 would be good But if 1 24 2 150 186 that is the conclusion it behoves a court particularly in a murder case where sentences of transportation in no less than four cases have been enhanced to death to say so with unerring certainty The same view was reiterated in Nar Singh vs State of Uttar Pradesh 1 We have stated earlier what the finding in the present case is it is a clear finding a finding with certainty that the number of persons who constituted the unlawful assembly was more than five though the identity of four only has been established and the killing was done in prosecution of the common object of the entire unlawful assembly Therefore we see no serious difficulty in applying section 149 Indian Penal Code in the present case As to the application of section 34 Indian Penal Code we consider that the legal position does not admit of any doubt or difficulty Four persons have been convicted of murder on the finding that all of them and some others had the common intention of killing three brothers the appellants took part in the assault in furtherance of the common intention and it is riot disputed that the common intention was achieved by murdering the three brothers Kurji Barji and Mitha The number of convicted persons is more than one and it does not fall below the required number What then is the difficulty in applying section 34 Indian Penal Code Learned counsel says We do not know who gave the fatal blows We accept the position that we do not know which particular person or persons gave the fatal blows but once it is found that a criminal act was donein furtherance of the common intention of all each of such persons is liable for the criminal act as if it were done by him alone The section is intended to meet a case in which it may be difficult to distinguish between the acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them The principle which the section embodies is participation in some action with the common intention of committing a crime once such participation is established section 34 is at once 1 A IR 459 187 attracted In the circumstances we fail to see what difficulty there is in applying section 34 Indian Penal Code in the present case In the course of his arguments learned counsel has suggested that some of the acquitted persons might have given the fatal blows and as they have been acquitted the appellants cannot be constructively liable for their acts We do not think that this a correct way of looking at the matter We are proceeding in this case on the basis that the acquittal is good for all purposes and we cannot bring in the acquitted persons for an argument that they or any of them gave the fatal blows It is necessary to refer now to two decisions of this Court with regard to the application of section 34 Indian Penal Code Learned counsel for the respondent has relied on Wasim Khan vs The State of Uttar Pradesh 1 In that case the High Court found that the appellant along with two others committed the offences of robbery and murder but the two co accused were acquitted It was observed that on the finding of the High Court the appellant could be convicted by the application of section 34 even though the two co accused of the appellant were acquitted That was a case in which the number came down to one by the acquittal of the two co accused The present case is a much stronger case in the matter of the application of section 34 because the number of convicted persons who participated in the criminal act in furtherance of common intention of all is four In Prabhu Babaji Navle vs The State of Bombay2 the appellant along with four others was charged under section 302 read with section 34 Indian Penal Code four others were acquitted The question was if the appellant could be convicted under section 34 after the acquittal of four others Here again the number fell to one that is below the required number It was observed If these four persons are all acquitted the element of sharing a common intention with them disappears and unless it can be proved that he shared a common intention with actual murderer or 1 1956 SCR 191 2 AIR 1956 SC 51 188 murderers he cannot be convicted with the aid of section 34 of course he could have been charged in the alternative for having shared a common intention with another or others unknown But even then the common intention would have to be proved either by direct evidence or by legitimate inference It is impossible to reach such a conclusion on the evidence in this case once the co accused are eliminated because the whole gravamen of the charge and of the evidence is that the appellant shared the common intention with those other four and not with others who are unknown This decision can be distinguished on two grounds 1 the number fell below the required number and 2 it was not possible to reach a conclusion in that case that the appellant shared the common intention with another or others unknown In our case the number of convicted persons is four and each of them had the necessary common intention secondly there is a clear finding that they shared the common intention with some others whose identity was not established The decision in Prabhu Babaji Navle 1 does not therefore stand in our way Lastly there is the question of sentence Learned counsel for the appellants has submitted that the lesser sentence should be imposed and he has given three reasons in support of his submission 1 that Amra brother of the appellants was murdered earlier in the year 2 that the father of the appellants was also convicted but was not given capital punishment though he must have influenced the appellants and 3 there is no finding that the appellants caused the fatal injuries We have examined the evidence and it shows clearly enough that the appellants played a leading part and so far as Kurji and Harji were concerned took a major part in assaulting them with heavy axes The High Court also carefully considered the sentence imposed on the appellants and came to the conclusion that having regard to the enormity of the crime viz three premeditated and cold blooded 1 AIR 1956 SC 51 189 murders and the part played by the appellants it would not be justified in imposing the lesser sentence We see no good reasons for differing from the High Court and interfering with the sentence For the reasons given above the appeal fails and is dismissed Appeal dismissed

Section 25Fb of the provided No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until b the workman has been paid at the time of retrenchment compensation which shall be equivalent to fifteen days average pay for every completed year of service or any part thereof in excess of six months The dispute between the appellant company and its workmen related to the claim for gratuity made by the latter and it was the appellant s contention that in the scheme of gratuity framed by the Tribunal no gratuity should be paid to workmen who would be entitled to receive retrenchment compensation under section 25F of the Before section 25F was introduced in the Act by Act 43 of 1953 workmen were given the benefit of both retrenchment compensation and gratuity by industrial awards but the decisions were not always uniform Ordinance V was promulgated on October 24 1953 by section 25Eb of which it was provided that before a workman was retrenched he must be paid at the time of retrenchment gratuity which shall be equivalent to 15 days average pay for every completed year of service or any part thereof in excess of six months The 33 Ordinance was followed by Act 43 of 1953 which was deemed to have come into force on October 24 1953 and in the statement of aims and objects of the Act it was said that a workman shall not be retrenched until he has been given one month s notice in writing or one month s wages in lieu of such notice and also a gratuity Section 25Fb of the Act was in the same terms as section 25Eb of the Ordinance except that for the word CC gratuity the expression retrenchment compensation was substituted The appellant s case was that after section 25F was enacted there was no longer any scope for framing gratuity schemes in addition to the statutory retrenchment compensation for retrenched employees on the grounds 1 that both in section 25Eb of the Ordinance and the statement of aims and objects of the amending Act the word gratuity had been used and not retrenchment compensation 2 that in determining the amount of compensation payable to a retrenched workman the length of his past service had been taken into account and schemes of gratuity also provide for payment of gratuity on similar considerations and adopt a similar measure and 3 that a retrenched workman would get both retrenchment compensation and gratuity and so get more than what other workmen with corresponding length of service would get on their retirement Held 1 that for construing S 25F of the the words used in the statement about the aims and objects of the Act are not relevant and that the character of the payment prescribed by the section could only be determined by the expression retrenchment compensation used therein and 2 that in the absence of any provision in the excluding the claim or grant of gratuity the mere enactment of section 25F cannot oust the jurisdiction of industrial tribunals to entertain claims for gratuity schemes or make it improper or unjust to frame such schemes for all employees including those who are retrenched The object of granting retrenchment compensation is to enable the workman who is given partial protection to tide over the period of unemployment and to keep his gratuity safe and unused so that it may be available to him after his retirement The two claims complement each other and the fact that they appear to constitute a double benefit cannot affect their validity

19 of 1959 Petition under Article 32 of the Constitution of India for enforcement of fundamental rights Veda Vyasa section K Kapur and Ganpat Rai for the petitioners section M Sikri Advocate General for the State of Punjab N section Bindra and D Gupta for the respondents November 13 The Judgment of the Court was delivered by GAJENDRAGADKAR J The Okara Electric Supply Co Ltd which is a Joint Stock Company and Shrimati V V Oberoi one of the principal shareholders of the said company hereinafter called petitioners 1 and 2 respectively have filed the present petition against the State of Punjab and the Punjab 241 State Electricity Board hereinafter called respondents 1 and 2 respectively in which they have claimed a writ order or direction in respect of a notice issued The by respondent 1 on January 3 1958 The petition was presented on January 3 1959 and it claimed an order or writ restraining the respondents from giving effect to the said notice It appears that on January 4 1959 in pursuance of the said impugned notice the respondents took possession of the petitioners property in question and so by an order passed by the learned Chamber Judge the petitioners were allowed to make an additional claim for a writ or order or direction in the nature of mandamus directing the respondents to hand over to the petitioners the said property in question This petition is made on the ground that the impugned notice and action taken by the respondents in pursuance of it are illegal and unauthorised and they affect the petitioners fundamental rights under articles 19 and 31 of the Constitution The first petitioner was granted sanction under section 28 of the 9 of 1910 hereinafter called the Act authorising it to engage in the business of supplying energy at Muktsar by Government Notification No 1766 1 C 4828784 published on May 26 1948 By virtue of the said sanction the first petitioner has ever since been engaged in the business of supplying electric energy at the said place and for the purpose of its business it has set tip an electricity undertaking at considerable cost On January 3 1958 the Secretary to respondent 1 P W D Irrigation and Electricity Branches Chandigarh issued notice against the first petitioner purporting to exercise the option given to respondent 1 by cl 11 of the said notification By this notice the first petitioner was told that respondent 1 had exercised its option under the said clause and that on the expiry of the period of one year after the receipt of the notice by the first petitioner its undertaking shall vest in and become the absolute property of respondent 1 The first petitioner has been having bulk supply from P W D Electricity branch of respondent 1 and 31 242 according to the petition respondent 1 could not and will not take over the plant and yet has ordered the first petitioner that it cannot sell the plant without permission of respondent 1 The imposition of this condition is wholly illegal and it amounts to an unreasonable restriction on the petitioners right to carry on business and to hold and dispose of its property The petition alleges that cl 1 1 of the notification on which the impugned notice is founded is ultra vires section 28 of the Act and that alternatively if the inclusion of the said clause in the notification is justified by section 28 of the Act section 28 itself is ultra vires since it offends against articles 19 and 31 of the Constitution It is on these allegations that originally the petition claimed an order against the enforcement of the notice and subsequently added the prayer for a writ of mandamus directing respondent 1 to restore to the petitioners possession of the property which has been taken over by respondent 1 after the filing of the present petition The claim thus made is denied by both the respondents It is urged that the petitioners cannot challenge the validity of cl 11 which was accepted by them before the Constitution came into force It is further urged that the said clause is justified by the provisions of section 28 of the Act and that both the said clause and section 28 are intra vires and valid The respondents further alleged that after possession was taken of the property of the first petitioner in exercise of the option under cl 11 the first petitioner had been repeatedly called upon by the respondents to assist them in making a proper valuation of the assets of the first petitioner taken over by the respondents In fact an amount of Rs 60000 has been paid to the first petitioner in part payment by way of compensation and it has been accepted by it though under protest but the work of completing the valuation of the total assets has been delayed and hampered by the non cooperative attitude of the first petitioner Thus the first question which falls to be decided on this petition is whether cl 11 of the notification is 243 justified by section 28 of the Act The notification consists of 14 clauses and it sets out exhaustively the terms and conditions on which sanction had been granted to the first petitioner under section 28 of the Act For the purpose of the present petition it would be enough to refer to 11 only This clause provides that the provincial Government shall have the option to acquire the undertaking at any time October 21 1950 provided firstly That not less than one Year notice in writing of the election to acquire shall be served upon the supplier by the Provincial Government provided secondly that the generating station shall not form part of the undertaking for the purpose of acquisition if the undertaking is acquired after grid supply from the East Punjab Public Works Department Electricity Branch has reached Muktsar provided thirdly that the price to be paid to the supplier for such lands buildings works materials and plant as may be acquired by the Provincial Government under this clause will be the fair market value at the time of purchase without any addition in respect of compulsory purchase or of goodwill or of any profits which may be or might have been made from the undertaking such value to be in case of difference or dispute determined by arbitration in the manner prescribed in section 52 of the Act provided fourthly that the Provincial Government shall pay the price of the property acquired under this clause within a period of six months after the price has been determined Mr Veda Vyas for the petitioners contends that the condition which gives respondent 1 the option to acquire the property of the petitioners is ultra vires We are concerned with section 28 as it stood prior to its amendment by Act 32 of 1959 Section 281 reads thus No person other than a licensee shall engage in the business of supplying energy except with the previous sanction of the State Government and in accordance with such conditions as the State Government may fix in this behalf and any agreement to the contrary shall be void 244 The Act which was passed in 1910 to amend the law relating to the supply and use of electrical energy was intended to provide for and regulate the supply of energy by granting licences and so the provisions in respect of licences are dealt with by sections 3 to 27 in Part 11 Part III in which section 28 occurs deals with the supply of energy non licensees It appears that the Legislature intended to adopt the course of sanctioning the supply of energy by lion licensees as a temporary measure and in areas wherever it was expedient to do so A person other than a licensee cannot engage in the business of supplying energy except with the previous sanction of the State Government and section 281 authorises the State Government to impose conditions subject to which it proposes to grant sanction This position is not disputed but the argument is that the conditions which can be legitimately imposed in granting sanction must be such as would relate to or have bearing on the business of supplying energy Such conditions in this behalf it is urged cannot include any conditions as to compulsory acquisition of the property of the person to whom sanction is intended to be given The acquisition of such property does not relate and has no bearing on the business of supplying energy and is in no manner connected with it It would be competent to the State Government to provide for the area of supply the aerial lines the nature of the supply the limitation of prices to be charged for the supply of energy and the purchase of energy in bulk These and other similar conditions can be properly regarded as conditions in behalf of the business if supplying energy but the condition of compulsory acquisition of the supplier s property cannot be treated as falling under section 281 In support of this construction reliance is placed on the provisions of sections 5 and 6 which specifically deal with the question about the acquisition of the undertaking Section 3 of the Act provides for the granting of licences and section 4 for the revocation and amendment of licences Having provided for the grant revocation and amendment of the licences section 5 deals inter 245 alia with the question of paying compensation to the licensee whose licence has been revoked similary section 6 makes appropriate provisions for compensation where the licence of local authority has been revoked Section 7 makes a provision for the purchase of an undertaking and lays down the procedure for determining the value of the properties The petitioners urge that where the Legislature thought it necessary to acquire properties of the licensees either on the revocation or the cancellation of the licences it has made express provisions in that behalf a similar provision would have been made in respect of persons other than licensees to whom sanction is granted under section 28 if it was in the contemplation of the Legislature that the properties of such persons may be acquired Thus presented the argument no doubt appears to be plausible Prima facie there is some force in the contention that conditions in this behalf in the context should mean conditions which are relevant to or connected with the business of supplying energy In deciding this question however it is essential to bear in mind the Specialnature of the article viz energy for the supply ofwhich sanction is granted and to take intoaccount the scheme of the Act in regard to the conditions which are intended to be imposed on the business of its supply In this connection it would not be unreasonable to ascertain how the supply of energy is regulated in England and America It is clear that the Act is based on the provisions of the English law and it would be useful to inquire whether conditions for the acquisition of the supplier s property were treated as a part of the conditions on which the supplier was allowed to carry on the business of supplying electricity This aspect is considered by Halsbury under the heading Acquisition of undertaking by Local Authority In Local Authority it is observed within whose jurisdiction the area of supply or any part of it is situated may within six months after the expiration of 42 years or any shorter period specified in the special order from the coming to force of the said 246 order by a notice in writing require the undertakers to sell and thereupon the undertakers must sell too them their undertaking or so much of it as within its jurisdiction upon terms of paving the then value of all lands buildings works materials and plant of the undertakers suitable to and used by them for the purpose of the undertaking within such jurisdiction such value to be determined by arbitration in case of difference 1 It would thus appear that where sanction was given to a person for carrying on the business of supplying electricity under a special order a condition was introduced in the said order itself for the compulsory acquisition of the undertaking on payment of adequate compensation to the person concerned Subsequently after the passing of the Electric Lighting Act 1909 powers to supply electricity were not granted by provisional orders but a large number of such orders still remained in force and as Halsbury has observed many of these orders are in a standard form but a number contain special clauses of which the most common is a clause giving special purchase rights to local Authorities These special orders were confirmed by Acts and contained special clauses for the protection of county bridges for the breaking up of streets for the connection of the generating stations and systems of different undertakings and the use of such generating stations in common for the purpose of such undertakings 2 It is thus clear that where a licence was given to a person to supply electricity it generally included the right of the licensing authority to acquire the licensee s property on terms and conditions included in the licence by the provisional order The American lawyers describe the right or privilege to supply electricity as a franchise This right falls under a class of rights in public streets which are granted for furtherance of public purposes but which involving as they do the right to use the streets in 1 Halsbury s Laws of England Vol 12 2nd Ed page 597 article 1152 2 Halsbury s Laws of England Vol 12 2nd Ed page 668 footnote t 247 various ways give rise to a series of questions as between the grantee of the right on the one hand and the municipality or abutting owners on the other Dillon in Muncipal Corporations further observes that for convenience these rights are described as franchises to use the public streets and highways and whether correctly or incorrectly denominated franchises they answer in essential respects to the definition and elements of a franchise from the State The business of furnishing water and light observes the author when carried on by a corporation or individual of necessity involves the use of streets and highways of the municipality and the right to lay pipes mains and conduits and to erect poles and stretch wires therein and to maintain operate and use them is a franchise vested in the State and it can only be exercised by a corporation or individual pursuant to the authority granted by the State 2 The question of the purchase of works of companies by municipality is also considered by Dillon Where a municipal corporation has granted a franchise to a water or gas company to construct its plant to use the city streets for pipes and mains and to furnish water or light to the city and its inhabitants it has been held that the legislature under special constitutional restrictions was without authority to compel the city to purchase the property or plant of the company if it desired to acquire or construct works of its own but in the absence of constitutional limitations statutes may be enacted and contracts made which in their effect prevent municipalities from establishing water works of their own until they have at least offered to purchase the works of corporations organised and existing within their limits 3 The learned author also says that If a municipality stipulates in a contract with a water or other public service company that it shall have the right to purchase the works of the company at a time and in a 1 Dillon s Municipal Corporations 5th Ed Vol section 1210 2 Dillon s Municipal Corporations 5th Ed Vol 111 p 213637 section 1304 3 Ibid P 2183 section 1312 248 manner specified and if such stipulation is inserted in and becomes a part of a grant of the right to use Electric the streets and public places of the municipality for the purpose of laying mains and pipes the corpor ation is estopped to deny the authority of the municipality to make and enforce the stipulation 1 In New Orleans Gas Light Co vs Louisiana Light and Heat Producing and Manufacturing Co 2 it has been held by the Supreme Court of the United States of America that the manufacture and distribution of gas by means of pipes mains and conduits placed under legislative authority in the public ways of a municipality is not an ordinary business in which everyone may engage as of common right upon terms of equality but is a franchise relating to matters of which the public may assume control and when not forbidden by the organic law of the State may be granted by the Legislature as a means of accomplishing public objects to whomsoever and upon what terms it pleases In that case the question which arose for decision of the court related to the validity of the constitutional prohibition upon State laws impairing the obligation of contracts but with that aspect of the matter we are not concerned in the present appeal It thus appears that American lawyers describe the business of supplying energy as well as the business of supplying water and gas as a franchise and it also appears that in granting licence or sanction to a person to engage in such business a condition is usually imposed for the compulsory acquisition of the business when the licence or sanction comes to an end Let us look at this question from a practical point of view If a person is granted sanction to engage in the business of supplying energy it is not denied that section 281 would justify the imposition of a time limit on the grant of sanction If sanction is granted for a specified number of years and it comes to an end what would happen to the constructions made by the supplier for the purpose of supplying energy He 1 Ibid P 2187 section 1312 2 29 L Ed 516 249 cannot dismantle them because thereby he would cause damage to public property such as streets and so he cannot take them away In such a case the Legislature may well provide for the acquisition of such constructions in order to safeguard the interest of the person to whom temporary sanction is granted Such a provision also serves another public purpose It guarantees the availability of suitable constructions and works which may be used for the continuance of the supply of electricity by another agency In other words the statutory provision which deals with the grant of sanction to a person to engage in the business of supplying energy must having regard to the special features of the business necessarily deal with the position which would arise on the termination of the sanction and so it would not be unreasonable to assume that the statutory provisions which deals with this question would think of making adequate provision empowering the State Government to provide for the compulsory acquisition of the assets of the supplier on payment of proper compensation It is in the light of this special feature of the business of supplying energy that we must construe section 281 of the Act Besides the provisions of sections 5 6 and 7 also afford assistance in the matter They clearly show that in the case of a licence specific provisions have been made for the acquisition of the undertaking in cases of revocation or cancellation of licences The reason for thus providing for compulsory acquisition of licensee s undertaking is equally relevant in the case of the sanction with which section 281 deals It is true that section 28 does not specifically and expressly provide for compensation as the other sections do but that must be because recourse to the provisions of Pt III was intended not to be the rule but only as a temporary measure wherever it was deemed necessary to do so and so the Legislature left it to the State Government to provide for compulsory acquisition in the light of the guidance given by the provisions contained in sections 5 6 and 7 Let us then look at section 281 in the light of these con siderations It authorises the State Government to 32 250 give sanction to a person to engage in the business of supplying energy on conditions in that behalf The expression such conditions in this behalf in the context should take in conditions dealing with the Position which would inevitably arise when the business comes to an end There is no doubt that the grant of sanction contemplated by section 28 cannot be permanent It was always bound to be temporary issued on an ad hoc basis according to the requirement of each case and when granting sanction for a specified number of years it is in the interest of the grantee himself that some provision should be made for payment of compensation to him in respect of the investment made by him in carrying out the business of supplying energy when otherwise it would be difficult for him to collect his assets in that behalf That is why we think that the relevant words should not be given a narrow and limited construction for which the petitioners contend In our opinion the context requires that the said words should receive a wider and liberal construction A condition for the acquisition of the property of the petitioners like cl 11 would therefore fall within the scope of section 281 The challenge to the validity of this condition on the ground that it is ultra vires section 281 must accordingly fail If section 28 permits the imposition of such a condition does it violate article 19 or article 31 of the Constitution That is the next question which must be considered It is not seriously disputed that article 312 on which reliance is placed by the petitioners cannot be of much help to them for article 315 provides inter alia that nothing in cl 2 shall affect the provisions of any existing law other than the law to which the provisions of cl 6 applies It is conceded that cl 6 does not apply to the Act so that it follows that article 312 cannot be invoked to challenge the validity of the Act Mr Veda Vyas attempted to contend that the vires of the Act could be challenged if not under article 312 at least under section 2992 of the Government of India Act 1935 but he realised that he was up against a similar difficulty created by the provisions of section 2994 which says that nothing in section 299 shall affect the provisions 251 of any law in force at the date of the passing of the Act and he conceded that in 1910 when the Act was passed the Legislature was competent to pass it and it then suffered from no infirmity That is why though an attempt was made to press into service article 312 it was ultimately given up We need not therefore discuss this point any further In regard to the attack on section 28 on the ground that it offends article 19f or g the answer is obvious The limitations imposed by section 28 quite clearly are reasonable restrictions and have been imposed in the interests of the general public within the meaning of Art 195 of the Constitution As we have already seen such limitations are generally imposed on the business of supplying energy and their reasonableness cannot be and has in fact not been seriously challenged Therefore we have no hesitation in holding that the vires of section 28 cannot be successfully challenged Incidentally we may observe that on the day when the Constitution came into force what vested in the petitioners was the property subject to the liability imposed on it by cl 11 of the notification and so when the Constitution came into force the only rights which the petitioners had in their property in question were rights of a limited character which were subject to the exercise by the State of its election to acquire the said property In this connection the respondents rely on the decision of this Court in Director of Endowments Government of Hyderabad vs Akram Ali1 and seek to urge that the exercise of the option given to respondent 1 by cl 11 of the notification cannot be successfully challenged as ultra vires under article 19 of the Constitution we do not however think it neces sary to decide this point because it was fairly conceded before us that if section 28 is valid and is construed to include a condition like cl It of the notification no other point would survive There is one more minor point to which reference may be made In the petition the validity of the notice given by respondent to the petitioners prohibiting them from dealing with the property was 1 AIR 1956 SC 60 252 challenged but that is no longer a matter in dispute between the parties since respondent I has in substance withdrawn the said notice This fact however would be relevant on the question of costs The result is the petition fails but in the circumstances of this case there would be no order as to costs Petition dismissed

The U P Union Bank was in occupation of a building belonging to the respondent as a tenant After the passing of the winding up order of the bank the Official Liquidators removed the offices of the bank from the premises and called upon the respondent landlord to take possession thereof The respondent refused to do so as part of the premises was occupied by some trespassers Thereafter the Official Liquidators did not do any business in the building in connection with the winding up of the bank The respondent claimed the entire rent from the date of the winding up order up to the date on which the Official Liquidators would give him vacant possession of the premises The High Court held that in view of the proviso to r 97 of the Rules framed by the High Court under the Companies Act the respondent was entitled to recover the entire rent claimed by him and not pro rata with the other creditors of the bank The proviso to r 97 of the Company Rules runs thus Provided that where the official liquidator remains in occupation of premises demised to a company which is being wound up nothing herein contained shall prejudice or affect the rights of the landlord of such premises to claim payment 190 by the Company or the Official Liquidator of rent during the period of the company s or the Official Liquidator s occupation On appeal by the Official Liquidators by a certificate of the High Court Held that the landlord respondent was not entitled to claim priority in respect of payment of rent because the proviso to r 97 of the Company Rules framed by the High Court affirms the right of the landlord to claim payment of rent accruing due since the date of winding up but does not deal with the question of priority in payment thereof and further because the building in question did not remain in the possession of the liquidators for the purpose of liquidation In re Oak Pits Colliery Company followed Held further that section 230 of the Companies Act 1913 which specifies categories to which priority in payment should be given does not give priority to rent due to landlord and it is not within the competence of the High Court to give priority by its rules to a category which is not included in that section Under section 193 the Court has power to order payment of the costs and expenses of winding in such priority as it thinks fit in cases where the assets are insufficient to discharge the liabilities and section 2303 empowers the Court to direct the company to retain such sums as may be necessary for the costs and expenses of winding up even before discharging the debts for which priority is given by section 230 If a debt can reasonably be described as costs and expenses of winding up the court may direct preferential payment thereof otherwise only pro rata payment with the other ordinary creditors can be claimed out of the assets of the company

126 of 1958 Petition under Article 32 of the Constitution of India for enforcement of Fundamental Rights N C Chatterjee and B V section Mani for the petitioners B Sen and R H Dhebar for the respondent November 20 The Judgment of the Court was delivered by DAS GUPTA J The petitioners who describe them selves as Road side Station Masters challenge in this petition under article 32 of the Constitution the constitutionality of the channel of promotion for Guards to higher grade Station Masters posts as notified in the issue of the Central Railway Weekly Gazette No 3 dated November 23 1951 Under this Notification Guards have two lines of promotion open to them One is that by promotion C grade Guards may become B grade Guards on Rs 100 185 and thereafter by further promotion A grade Guaids on Rs 150 225 The second line of promotion open to them is that by an examination described curiously enough as Slip 45 examination C grade Guards are eligible for promotion to posts of Station Masters on RS 150 225 scale and thereafter to all the further promotions that are open to the Station Masters viz higher cales of Rs 200 to Rs 300 Rs 260 to Rs 350 Rs 300 to Rs 400 and finally Rs 360 to Rs 500 B grade Guards and A grade Guards are also on passing Slip 45 examination eligible for promotion to posts of Station Masters on Rs 200 300 pay scale and thereafter to further promotions to the higher scales in the Station Masters line The Road side Station Masters on pay scale of Rs 80 to Rs 170 313 the scale was formerly Rs 64 170 can also reach by promotion the grade of Rs 150 225 but only after going through an intermediate stage of Rs 100 185 Similarly Station Masters on Rs 100 185 scale may also reach the stage of Rs 200 300 but only after passing through the intermediate stage of Rs 150 225 Obviously the provisions enabling Guards to become Station Masters on the pay scale of Rs 150 225 places the Station Masters of Rs 80 170 scale at a disadvantage as against Guards on that pay scale and also puts the Road side Station Masters on the pay of Rs 100 185 pay scale at a disadvantage as against Guards on that scale of pay The petitioners contend that the channel of promotion in so far as it enables Guards to be promoted as Station Masters in addition to the other line of promotion open to them as Guards amounts to a denial of equal opportunity as between Road side Station Masters and Guards in the matter of promotion and thus contravenes the provisions of article 161 of the Constitution It was further alleged in the petition that taking advantage of this channel of promotion Guards become Station Masters on Rs 150 225 at a very much younger age than Road side Station Masters and thus block the chances of higher promotion to Road side Station Masters who reach the Rs 150 225 scale when they are much older As instances of how the impugned provisions in the channel of promotion are harmful to the Road side Station Masters the petitioners state that while the petitioner No 2 even after completing 32 years of service has remained in the grade of Rs 100 185 as Station Master Guards of equal status and standing have reached gazetted rank within the same period of service that whereas the petitioner No 3 has come by promotion to the grade of Rs 150225 after putting in 21 years of service Guards of his standing have risen to the grade of Rs 360 500 by virtue of the impugned channel of promotion and several of his juniors who entered the Railway service long after him as Guards have superseded him and are working in the grade of Rs 360 500 that while the 314 petitioner No 4 having entered into service as Telegraph Candidate and having passed all the requisite examinations prescribed for the higher grade of Station Master within a period of 2 12 years after putting in 6 12 years of service is still in the grade of Rs 80 170 Guards of his length of service and departmental qualification are entitled for promotion as an Assistant Station Master in the grade of Rs 150 225 within about the same length of service The respondents the General Manager Central Railways Bombay VT the Chairman Railway Board New Delhi and the Union of India who contest the application contend that the channel of promotion providing these opportunities to Guards does not in any way contravene the provisions of article 161 of the Constitution They also deny the correctness of the allegation that as a result of these opportunities Guards become Station Masters on Rs 150 225 pay scale at a Younger age than Road side Station Masters On the material before us it is not possible to come to a firm conclusion as regards the relative age at which Guards or Road side Station Masters ordinarily reach the pay scale of Rs 150 225 Assuming however the position to be as stated in the petition that may only evoke some sympathy for the Road side Station Masters but does not in any way affect the decision of the question whether article 161 of the Constitution is contravened by this channel of promotion article 161 of the Constitution is in these words There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State The impugned provisions of the channel of promotion are in respect of promotion of persons already employed under the State and not in respect of the first employment under the State If the equality of opportunity guaranteed to all citizens by article 161 does not extend to matters of promotion the petitioners contention that the provisions are void must fail at once If however matters of promotion are 315 also matters relating to employment within the meaning of article 161 of the Constitution the next question we have to consider is whether the impugned provisions amount to denial of equality of opportunity within the meaning of that Article We propose to consider the second question first on the assumption that matters of promotion are Cc matters relating to employment So multifarious are the activities of the State that employment of men for the purpose of these activities has by the very nature of things to be in different departments of the State and inside each department in many different classes For each such class there are separate rules fixing the number of personnel of each class posts to which the men in that class will be appointed questions of seniority pay of different posts the manner in which promotion will be effected from the lower grades of pay to the higher grades eg whether on the result of periodical examination or by seniority or by selection or on some other basis and other cognate matters Each such class can be reasonably considered to be a separate and in many matters independent entity with its own rules of recruitment pay and prospects and other conditions of service which may vary considerably between one class and another A member joins a particular class on recruitment he leaves the class on retirement or death or dismissal discharge resignation or other modes of termination of service or by joining another class of employees whether by promotion thereto or direct recruitment thereto on passing some examination or by selection in some other mode It is clear that as between the members of the same class the question whether conditions of service are the same or not may well arise If they are not the question of denial of equal opportunity will require serious consideration in such cases Does the concept of equal opportunity in matters of employment apply however to variations in provisions as between members of different classes of employees under the State In our opinion the answer must be in the 316 negative The concept of equality can have no existence except with reference to matters which are common as between individuals between whom equality is predicated Equality of opportunity in matters of employment can be predicated only as between persons who are either seeking the same employment or have obtained the same employment It will for example plainly make no sense to say that because for employment as professors of colleges a higher University degree is required than for employment as teachers of schools equality of opportunity is being denied Similarly it is meaningless to say that unless persons who have obtained employment as school teachers have the same chances of promotion as persons who have obtained employment as teachers in colleges equality of opportunity is denied There is in our opinion no escape from the conclusion that equality of opportunity in matters of promotion must mean equality as between members of the same class of employees and not equality between members of separate independent classes The Petitioners Counsel did not seriously challenge the correctness of the above proposition They contended however that Road side Station Masters and Guards really form one and the same class of employees In our opinion there is no substance in this contention It has to be noticed first that Appendix 11 of the Indian Railway Establishment Code Vol 1 which prescribe rules for the recruitment and training of subordinate staff of Indian Railways classify the subordinate staff governed by the rules into 7 branches 1 Transportation Traffic 2 Commercial 3 Transportation Power 4 Civil Engineering 5 Store department Staff 6 Office clerks and 7 Medical Each branch again has been divided into groups The first branch ie the Transportation Traffic is shown as having 3 groups i Station Masters ii Guards iii Outdoor Clerical Staff Rule 2 the definition section defines a group to mean a series of classes which form a normal channel of promotion Rule 8 shows the classes of posts 317 included in the Station Masters group and the normal channels of their promotion which are as follows Signaller Assist Head Signallers Assist Station Masters lower grade Head Signallers Station Masters lower grade Telegraph Inspectors Assist controllers Assist Yard Foreman Station Masters Controllers Yard Foremen Transportation Inspectors Rule 9 lays down the qualifications necessary for the recruitment to this group Rule 10 says that the recruitment will be initially made as students and further provides that the recruits may be a persons to be trained in telegraphy in railway telegraph training schools and b persons who have completed a training in telegraphy in recognized private telegraph training schools Note 2 of this Rule provides that recruits in either category will on the satisfactory completion of their training be eligible for appointment as signallers and will remain on probation for one year after such appointment Provisions for training appear in Rule 11 Rule 12 provides for Refresher and Promotion Courses Rules 13 to 17 are in respect of Guards Rule 13 states the classes included in this group and the normal channels of their promotion thus Probationary Guards Goods or passengers guards Assistant Station Masters higher grades Assistant controllers Assist Yard Foremen Station Masters Controllers Yard Foremen Transportation Inspectors Rule 14 lays down the qualifications necessary for recruitment in this line Rule 15 provides that the 41 318 recruitment will normally be to the lower grade of Guards Rule 16 provides that during the one year period of probation recruits will undergo training for a period to be fixed by the administration Rule 17 provides for the periodical refresher courses at stated intervals and promotion courses as necessary may be prescribed In deciding the question whether Road side Station Masters and Guards belong to one and the same class of employees or not we must not be misled by the words groups or classes of posts used in the above rules The crux of the question is the nature of the differentiation between Road side Station Masters and Guards in recruitment prospects and promotion We find that Road side Station Masters and Guards are recruited separately trained separately and the several classes of posts which are ordinarily open to them are also distinct and separate The only point of contact between them is provided by the rule that Guards may become Station Masters by passing the Slip 45 examination If after becoming Station Masters these Guards could continue also as Guards there might be some scope for suggesting that the two classes have coalesced It is not disputed however that Guards once they become Station Masters cease to be Guards and continue as Station Masters The fact that the qualifications necessary for recruitment as Guards or Station Masters are approximately or even wholly the same can in no way affect the question whether they form one and the same class or form different classes As on the admitted facts the Roadside Station Masters and Guards are as already stated recruited separately and trained separately and have separate avenues of promotion the conclusion is irresistible that they form two distinct and separate classes as between whom there is no scope for predicating equality or inequality of opportunity in matters of promotion In view of this conclusion it is unnecessary for the purpose of the present case to decide the other question whether matters of promotion are included in the words matters relating to employment in 319 Article 161 of the Constitution For even assuming that they are so included the present application must be rejected on the simple ground that the petitioners belong to a wholly distinct and separate class from Guards and so there can be no question of equality of opportunity in matters of promotion as between the petitioners and Guards The learned Counsel for the petitioners stated before us that this channel of promotion for Guards is peculiar to the Central Railways and is not now to be found in the other Zones of Indian Railways If that be the position the matter may well deserve the attention of the Government but this has nothing to do with the merits of the petition before us For the reasons mentioned above we dismiss the application but in view of all the circumstances we order that parties will bear their own costs Petition dismissed

Twelve named persons including the two appellants were charged with having formed an unlawful assembly with the common object of committing the murder of three persons The Sessions Judge acquitted seven of the accused but convicted five under section 302 read with 149 and section 302 read with 34 of the Penal Code He sentenced the appellants to death and the other three to imprisonment for life On appeal the High Court acquitted one of the other three convicted persons but maintained the conviction and sentences of the appellants and the two others The High Court held that there were ten to thirteen persons in the unlawful assembly though the identity of all the persons except four had not been established that all these persons had the common object and the common intention of killing the victims and that the killing was done in prosecution of the common object of the unlawful assembly and in further ance of the common intention of all The appellants contended that they having been charged with sharing the common object and common intention with certain named persons it was not 173 open to the High Court to hold that they shared the common object or the common intention with certain other unspecified persons or with some of the persons who had been acquitted and that in the absence of any finding that the appellants gave the fatal blows they could not be held constructively liable for the murders either under section 149 or section 34 PenalCode for blows given by some unknown persons Held that the appellants had been rightly convicted Even though the number of convicted persons was less than five the High Court could still apply s 149 in convicting the four persons There was nothing in law which prevented the High Court from finding that the unlawful assembly consisted of the four convicted persons and some unidentified persons who together numbered more than five In doing so the High Court did Dot make out a new unlawful assembly different from that charged the assembly was the same assembly but what had happened was that the identity of all the members had not been clearly established Kapildeo Singh vs The King Dalip Singh vs State of Punjab and Nay Singh vs State of Uttar Pradesh applied There was no difficulty in the application of s 34 Penal Code as the number of convicted persons was four and there was a clear finding that they shared the common intention with some others whose identity was not established Even if it was not known which particular person or persons gave the fatal blows once it was found that the murders were committed in furtherance of the common intention of all each one of such persons was liable for the murders as though they had been committed by him alone The section was intended to meet a case where members of a party acted in furtherance of the common intention of all but it was difficult to prove exactly the part played by each of them Wasim Khan vs The State of Uttar Pradesh 1956 SCR 191 referred to Prabhu Babaji Navle vs The State of Bombay AIR 1956 SC 51 distinguished

Civil Appeal No 342 of 1959 Appeal by special leave from the judgment and decree dated April 29 1959 of the Calcutta High Court in appeal from Original Order No 188 of 1958 H N Sanyal Additional Solicitor General of India T section Venkatarama K R Sarma and K R Chaudhry for the appellants section N Mukherjee for respondent No 1 N C Chatterjee section K Acharyya and R section Narula for respondent No 2 1959 November 10 The Judgment of the Court was delivered by GAJENDRAGADKAR J The principal question which Gajendragadhar J which this appeal by special leave raises for our decision is Whether the provisions of section 21 r 89 of the Code of Civil Procedure apply to a sale held by a receiver appointed by the court and authorized to sell the property in question The learned Single Judge on the Original Side of the Calcutta High Court as well as the Division Bench of the said High Court have answered this question in the negative The appellants contend that the view taken by the Calcutta High Court is erroneous This question arises in this way In Suit No 1024 of 1953 on the Original Side of the Calcutta High Court a decree for the payment of Rs 18497 15 0 was 200 passed by consent in favour of the New Bheerbhum Coal Co Ltd hereinafter called respondent 1 and against the Benares Ice Factory Ltd hereinafter called appellant 2 on December 5 1955 The decree provided for the payment of the decretal amount by six equal instalments and it directed that in case of default of any one of the instalments the balance of the decretal dues would at once become payable A first charge was created by the decree on the plant and machinery of appellant 2 for securing the payment of the decretal amount A default having occurred in the payment of instalments respondent I applied for the execution of the decree on April 10 1956 On this application an interim order was made on May 17 1956 appointing Mr A K Sen as Receiver of the properties charged The said application was finally decided by an order passed on May 30 1956 by which the appointment of the receiver was confirmed and he was given liberty to sell the said properties either by private treaty or by public auction It is common ground that the receiver took possession of the said property in December 1956 Subsequently on March 10 1958 the receiver entered into an agreement with Sukhlal Amarchand Vadnagra hereinafter called respondent 2 for the sale of the said property for Rs 30000 The terms and conditions embodied in the said agreement provided inter alia that within one month from the date of the receipt by the purchaser of intimation from the receiver that the sale bad been confirmed by the High Court the purchaser shall deposit with the said receiver the full price of Rs 30000 On March 31 1958 respondent I applied to the court for confirmation of the said agreement and on May 9 1958 GK Mittter J allowed the application He ordered that the appellants should deposit the sum of Rs 3000 with the attorneys of the decree bolder towards its claim under the said decree and further directed that if the said amount was paid within the time aforesaid and the balance of the decretal amount was paid within ten weeks thereafter the agreement of sale shall not be confirmed The order further provided that in default 201 of the appellants paying the amounts as directed within the respective due dates the sale of the charged property by the receiver to the second respondent as get out in the agreement shall be confirmed Pursuant to this order the appellants deposited with the attorneys of the decreeholder Rs 3000 on May 30 1958 They had also paid to the receiver Rs 3500 in August 1957 towards the decretal dues It appears that when the appellants were unable to pay the balance as directed by the court appellant 2 applied to the court praying that the agreement of sale should be cancelled and the time within which he was directed to pay the balance of the decretal amount should be extended The application also sought for certain other directions GK Mitter J who heard this application dismissed it on July 29 1958 and confirmed the agreement of sale On August 20 1958 appellant 2 took out a notice of motion of an application made by him on the same day praying that leave may be granted to him to deposit the whole of the balance of the decretal amount and that the receiver should be restrained from receiving any money from the intending purchaser in terms of the agreement of sale It appears that on August 22 1958 respondent 2 tendered a cheque for Rs 30000 to the receiver towards the payment of the purchase money under the agreement of sale Soon thereafter however respondent 2 took back the cheque and paid Rs 30000 in cash on September 1 1958 The application made by appellant 2 for leave to pay the balance of the decretal amount was dismissed by G K Mitter J on September 4 1958 The learned judge however stayed the delivery of possession of the property to respondent 2 for a week from the date of his order The appellants then filed an appeal against the order of the learned judge before a Division Bench of the High Court and obtained an order for stay of delivery pending the decision of the appeal On April 29 1959 the Division Bench dismissed the appeal and refused to grant certificate to the appellants to file an appeal in this Court The appellants 26 202 then applied for and obtained special leave from this Court on May 20 1959 That is how this appeal has come before us and the main point which Mr Sanyal for the appellants has raised for our decision is that the courts below were in error in refusing to give relief to the appellants under 0 21 r 89 on the ground that the said rule was inapplicable to the sale held by the receiver It is common ground that the receiver was appointed with power to him to get in and collect the outstanding debts and claims due in respect of the charged property and with all powers provided for in 0 40 r 1 cl d of the Code of Civil Procedure The order appointing the receiver also expressly directed that the receiver shall be at liberty to sell the said property charged in favour of respondent 1 either by private treaty or by private auction to the best purchaser or purchasers that can be got for the sale but he shall not hold such sale before the 13th day of August 1956 In other words the receiver was appointed in execution proceedings under section 51 and was given all the powers under 0 40 r 1d of the Code It is by virtue of those powers that he entered into the agreement of sale with respondent 2 and sold the property to him and gave him its possession Section 51 which deals with the powers of the court to enforce execution provides for the execution of the decree by five alternative modes specified in cls a to e One of the modes of execution is the appointment of a receiver which means that a decree for the payment of money can be executed by the appointment of a receiver He may either collect the income of the property belonging to the judgment debtor and thereby satisfy the decree or if so authorised he may sell the property of the judgment debtor and thereby arrange for the satisfaction of the decree Thus in dealing with the question as to whether the ale held by the receiver is a sale ordered by the court to which 0 21 r 89 applies it is necessary to remember that the appointment of the receiver itself is a mode of execution of the decree 203 When the receiver so appointed is given all the powers under 0 40 r 1d it is these powers which he seeks to exercise when selling the judgment debtor s property in execution of the decree The sale held by the receiver under such conditions would no doubt be governed by the provisions of 0 40 and the court may supervise or issue directions in respect of such a sale under the provisions of the said order Prima facie the sale held by the receiver appointed in execution proceedings in pursuance of the powers conferred on him under 0 40 r 1d would be governed by the powers conferred on him and the terms and conditions on which the said powers may have been conferred and by other relevant provisions of 0 40 It does not seem to attract the provisions of 0 21 Courts have had occasion to consider questions about the applicability of several provisions of 0 21 to sales held by receivers and opinions expressed on such questions have differed more particularly in the Calcutta High Court as we will presently indicate In the present appeal we do not propose to consider or decide the general question about the character of the sale held by the receiver nor do we propose to attempt to specify which provisions of 0 21 will apply to such sales and which will not We are dealing with the narrow question as to whether 0 21 r 89 applies to such a sale and it is to the decision of this narrow question that we will address ourselves in the present appeal Order 21 r 89 enables the persons specified in subr 1 to apply to have the sale held in execution proceedings set aside on two conditions a the applicant must deposit for payment to the purchaser a sum equal to 5 of the purchase money and b for payment to the decreeholder the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered less any amount which may since the date of such proclamation of sale have been received by the decreeholder The second requirement immediately raises the question as to whether it is necessary for the receiver in selling immoveable property in execution proceedings to issue 204 a proclamation as required by 0 21 r 66 of the Code In our opinion there can be no doubt that the provisions of the said rule do not apply to sales held by receivers No decision has been cited before us where a contrary view has been expressed The provisions of the said rule apply where property is ordered to be sold by public auction in execution by the court and the order for the sale of such property must be made by any court other than the Court of Small Causes as provided by r 82 Where the court appoints a receiver and gives him liberty to sell the property the receiver may either sell the property and thereby realise the money for the satisfaction of the decree or he may even without selling the property seek to satisfy the decree by the collection of rents due from the property or other ways open to him under the law In such a case it is difficult to hold that by the very appointment of the receiver clothing him with the power to sell the property if he thought it necessary to do so the court had ordered the sale of the said property within the meaning of 0 21 r 82 If the provisions of r 66 of 0 21 are inapplicable to sales held by receivers it is obvious that the second condition prescribed by r 891b is equally inapplicable and it is undoubtedly one of the two essential conditions for the successful prosecution of an application under the said rule In our opinion this fact clearly emphasises the inapplicability of the whole rule to sales held by receivers We are therefore satisfied that the High Court was right is refusing to entertain the appellants application under 0 21 r 89 It is then argued that the High Court should have considered the appellants prayer under section 151 of the Code It is no doubt a hard case where the appellants have to lose their property though presumbly at the time when they made the present application in the High Court they were able to produce for the payment to the decreeholder the whole of the balance of the decretal amount As the judgment of the Division Bench shows the learned judges themselves have observed that it was difficult not to feel sympathy for the appellants but on the other hand it is clear 205 from the record that the appellants were given enough opportunity to pay the decretal amount The decree was passed by consent and included a default clause The appellants committed default and incurred the liability to pay the whole of the decretal amount When the agreement of sale executed by the receiver came before the court another opportunity was given to the appellants to pay the decretal amount on the specified conditions The appellants again committed a default It is only later when it was too late that they rushed to the court with a prayer that they should be allowed to pay the decretal amount themselves and their property should be saved Under such circumstances if the learned judge who heard their application as well as the appellate court came to the conclusion that the court s jurisdiction under section 151 cannot be invoked by the appellants we do not see how we can interfere with the said decision It is true that section 151 is not specifically mentioned in the judgment of either of the courts below but that must be obviously because no specific plea under section 151 was raised Even so the Division Bench has observed that it could not interfere with the order of the learned judge when in his discretion he refused to make an order as asked for by the appellants This must inevitably refer to the discretion under section 151 because if 0 21 r 89 had applied and the appellants had satisfied the conditions prescribed by it there would be no discretion in the court to refuse such an application It would then have been a right of the appellants to claim that the sale should be set aside We are therefore unable to accede to the plea raised before us by Mr Sanyal under section 151 of the Code There is another point which Mr Sanyal attempted to raise He contended that the sale had not been properly confirmed before he moved the court for leave to pay the decretal amount and so the courts below were in error in not allowing his application This argument is based on a decision of the Calcutta High Court in SM Sudevi Devi vs Sovaram Agarwallah1 In that case Woodroffe J was dealing with a 1 206 conditional decree which entitled the decreeholder on the default of the defendant to apply to the court which passed the decree to direct the ejectment of the defend ant It appears that when disputes arose between the decreeholder and the judgment debtor in regard to the performance of the conditions imposed by the decree the decreeholder obtained an order for ejectment of the defendant without notice to the judgment debtor The judgment debtor then applied for setting aside modifying or reviewing the said order Woodroffe J held that a court had inherent power to deal with an application to set aside an order made ex parte on a proper case being substantiated Mr Sanyal contends that the sale in the present case being conditional in the sense that it was subject to the confirmation by the court it was open to the court to refuse to confirm it when the appellants applied for leave to pay the balance of the decretal amount This argument necessarily assumes that the order passed by Mitter J on May 9 1958 was a conditional order In our opinion this assumption is not well founded The said order no doubt gave an opportunity to the appellants to pay the decretal a mount in the manner prescribed by it but it clearly provided that in default of the appellants complying with the said conditions within the respective due dates the sale of the property by the receiver to respondent 2 be confirmed and that the said receiver do make over possession of the said property to the said purchaser It is clear that this order is not a conditional order at all It is a composite order It provided for the payment of the decretal amount by the appellants and in that sense gave an opportunity to the appellants to avoid the sale of their property but on the other hand it also provided that on their default to comply with the order the sale do stand confirmed and the receiver do make over the possession of the property to the purchaser Therefore in our opinion there is no scope for applying the principle laid down by Woodroffe J in the ease of section M Sudevi Devi 1 1 207 Before we part with this appeal we may very briefly indicate the nature of the divergence of views expressed in the Calcutta High Court on the question about the character of sales held by receivers appointed by courts to which our attention has been invited In Minatoonnessa Bibee Ors vs Khatoonnessa Bibee Ors 1 Mr Justice Sale held that the purchaser at a receiver s sale is entitled to obtain the assistance of the court in obtaining the possession under the provisions of the Code relating to sales in suits In coming to this conclusion the learned judge referred to a precedent in the Calcutta High Court in that behalf and made an order for possession of the property in favour of the receiver It may be pointed out that the learned judge in dealing with the question has referred to the important fact that in that particular case the sale had been already treated as a sale by the court inasmuch as the registrar had been directed under the provisions of the Code to execute the conveyance on behalf of some of the parties to the suit Thus the question was in a sense res judicata However in dealing with the general question the learned judge has no doubt observed that sales by receivers are in all essential particulars similar to sales by the registrar and that if they are sales by a civil court in a suit the procedure prescribed by the Code for sales in a suit would be applicable We do not think that these observations should be divorced from the facts of the particular case with which the learned judge was dealing and read as laying down a general proposition that sales held by receivers attract the application of all the provisions in the Code in regard to sales held by the court If such a proposition was really intended to be laid down we would hold that it is not correct at least in regard to the provisions of 0 21 r 89 In Gulam Hossein Cassim Ariff vs Fatima Begum 2 Mr Justice Fletcher has taken a contrary view He has held that a sale by a receiver under the direction of court is not a sale by court and in such a sale the court does not grant a sale certificate nor does it confirm the sale The learned judge referred to the 1 Cal 479 2 208 earlier decision of Sale J and dissented from him It is unnecessary for us to consider the correctness or otherwise of this decision Fletcher J adhered to the same view in Jogemaya Dasee vs Akhoy Coomar Das 1 In that case the learned judge was dealing with the sale of properties by the Commissioner of Partition and he held that such a sale is not one by the court but is one made by the Commissioner of Partition under the authority of the court Chaudhuri J considered the same question in Basir Ali vs Hafiz Nazir Ali 2 and held that in all sales whether by the court or under the court or by direction of the court out of court the purchaser is bound to satisfy himself of the value quality and title of the thing sold just as much as if he were purchasing the same under a private contract According to this decision the sales certificate does not transfer the title It is evidence of the transfer Accordingly he directed the receiver to execute a conveyance in favour of the purchaser This decision is not quite consistent with the view taken by Mr Justice Fletcher In Rani Bala Bose vs Hirendra Chandra Ghose Chakravarti J as he then was has incidentally referred to this conflict of judicial opinion in the Calcutta High Court and has indicated his preference for the view taken by Sale J though he has been careful enough to add that he was not deciding the point and that the case with which he was concerned was not covered by the actual decision of Fletcher J These decisions show that there has been a divergence of opinion as to the character of the sale held by a receiver as to whether it is a sale by the court or under the court or under the directions of the court It is because our attention has been invited to these decisions that we have thought it necessary to make it clear that our present decision is confined to the narrow question as to whether the sale held by a receiver attracts the provisions of 0 21 r 89 We 1 Cal 2 Cal 3 209 hold that r 89 of 0 21 does not apply to such a sale and that the High Court was right in rejecting the appellants claim based on the said rule The result is the appeal fails and is dismissed with costs Appeal dismissed

Section 281 of the authorised the State Government to grant sanction to a non licensee to engage in the business of supplying energy on such conditions in this behalf as it may fix By a notification dated May 26 1948 issued under section 281 the first respondent granted sanction to the first petitioner to engage in the business of supplying energy to Muktsar Clause 11 of the notification provided that the Provincial Government shall have the option of acquiring the undertaking at anytime after October 21 1950 after giving one year s notice and that it shall pay the price of lands buildings works material and plant that may be acquired at the fair market value On January 3 1958 the first respondent issued a notice exercising the option given under cl 11 and intimated to the first petitioner that upon expiry of one year its undertaking shall vest and become the absolute property of the first respondent On January 4 1959 the first respondent took possession of the undertaking in pursuance of the notice The petitioners contended that cl 11 of the notification was ultra vires section 28 and that if cl 11 was justified by section 28 then section 28 was void as it offended articles 19 and 31 of the Constitution Held that cl 11 of the notification was intra vires section 28 A statutory provision which dealt with the grant of sanction to 240 a person to engage in the business of supplying energy must having regard to the special features of the business necessarily deal with the position which would arise on the termination of the sanction so it could be assumed that such statutory provision would make adequate provision empowering the State Government to provide for the compulsory acquisition of the assets of the supplier on payment of proper compensation Though section 281 did not specifically provide for compulsory acquisition on payment of compensation the expression such conditions in this behalf in section 281 in the context would include conditions dealing with the position which would inevitably arise when the business came to an end The sanction under section 28 being necessarily temporary it was in the interest of thegrantee himself that some provision was made for payment of compensation to him A condition for acquisition like cl 11 was therefore within the scope of section 281 New Orleans Gas Light Co vs Louisiana Light and Heat Producing and Manufacturing Co 29 L Ed 516 referred to Held further that section 28 was valid and did not offend either article 19 or article 31 The Act could not be challenged on the ground of violating article 312 as it was an existing law which was saved by clause 5 of the article 31 Similarly it was saved by section 2994 of the Government of India Act 1935 from an attack under section 2992 The restrictions imposed by section 28 of the Act were reasonable restrictions imposed in the interests of the general public within the meaning of article 195 Such limitations were generally imposed on the business of supplying energy

ON Criminal Appeal No 22 of 1950 Appeal from the judgment and order dated 29th June 1950 of the High Court of Judicature at Simla Weston CJ and Khosla J in Criminal Appeal No 432 of 1949 arising out of a judgment dated 5th August 1949 of the Court of the Additional Sessions Judge Amritsar in Ses sions Trial No 7 of 1949 and Case No 8 of 1949 Jai Gopal Sethi R L Kohli with him for the appel lants Gopal Singh for the State March 21 The Judgment of the Court was delivered by FAZL ALl J The three appellants were tried by the Additional Sessions Judge at Amritsar and found guilty of having murdered two persons named Darshan Singh and Achhar Singh and sentenced to transportation for life The High Court of Punjab upheld their 841 conviction and sentence and granted them a certificate under article 1341cof the Constitution that the case is a fit one for appeal to this Court Hence this appeal The facts of the case may be briefly stated as follows On the evening of 16th December 1948 a little before sunset Achhar Singh one of the murdered persons went to the house of one Inder Singh in village Dalam for getting paddy husked Achhar Singh s brother Darshan Singh who was working as a driver at Amritsar came to Dalam from Amritsar the same evening and on coming to know from his father that Achhar Singh had gone to Inder Singh s house he also went there while the two brothers were returning home they were attacked by the three appellants and two of their relatives in a lane adjoining Inder Singh s house The five assailants who were armed with deadly weapons in flicted a number of injuries on the two victims as a result of which they died then and there After the murder the appellants and their companions tied the two dead bodies in two kheses wrappers and took them to village Saleempura where two other persons named Ajaib Singh and Banta Singh joined them and the dead bodies after being dismembered were thrown into a stream known as Sakinala at a place about five miles from village Dalam Bela Singh father of the deceased persons who was one of the persons who claims to have witnessed the occurrence did not leave the village at night on account of fear but he started about two hours before sunrise on the next morning and lodged the first information report at 10 AM at the nearest police station A police officer arrived in village Dalam shortly after wards and after investigation a charge sheet was submitted against seven persons including the present appellants At the trial five of the accused were charged with offences under section 302 read with section 149 and under section 201 read with section 149 of the Indian Penal Code and the remaining two accused were charged with the offence under section 201 read with section 149 of that Code The learned Judge who tried 842 the accused convicted the appellants and two other persons under section 302 read with section 149 of the Penal Code and sentenced them to transportation for life and convicted Ajaib Singh under section 201 read with section 149 and sentenced him to three years RI Bantu Singh accused was acquitted On appeal the Punjab High Court upheld the conviction of the present appellants and acquitted the remaining three persons Before proceeding to discuss the evidence in the case it is necessary to refer to what has been described as the motive for the murder It appears that in June 1947 Natha Singh father of the third appellant Swaran Singh was murdered and Darshan Singh and Achhar Singh the two mur dered persons in the case before us and their third broth er Sulakhan Singh were charged with the murder of that person As a result of the trial Darshan Singh was acquit ted and Achhar Singh was sentenced to 112 years RI while Sulakhan Singh was sentenced to 7 years RI The judgment of the Sessions Judge in that case was delivered shortly before the date of the present occurrence and it is common ground that Achhar Singh had been released on bail by the appellate court and was at large at that time It is said that the appellants and their relatives felt aggrieved by the acquittal of Darshan Singh and by the light sentence passed on Achhar Singh and therefore committed this murder in a spirit of frustration and revenge It was conceded before us by the learned counsel for the appellants that the facts stated above constituted a strong motive for the murder but he also contended that they constituted an equally strong motive for the appellants being falsely implicated in case the murder was committed as was suggest ed by him in circumstances under which the murderers could not be seen or identified It therefore becomes necessary to set out the evidence adduced by the prosecution in support of the murder The evidence led by the prosecution may be divided under two main heads 1 Direct evidence and2 Circumstantial evidence The direct evidence consists 843 of the testimony of four eye witnesses namely Bela Singh father of the deceased who claims to have gone to the scene of occurrence on hearing an outcry and to have witnessed the murderous assault on his sons Inder Singh and his wife Mst Taro to whom the murdered persons had gone for getting paddy husked and who lived in a house adjoining the lane where the murder took place and Gurcharan Singh a resident of a different village who states that he saw the occur rence when he was going towards village Dhadar on a cycle The circumstantial evidence in the case on which the High Court has relied may be briefly summarised as follows 1 The second appellant Massa Singh who was arrested on the 18th December 1948 was wearing a pyjama stained with human blood 2 The third appellant Swaran Singh who was arrested on the 18th December 1948 took the police on the 19th December to his haveli which was locked and on opening it two kheses wrappers which were stained with human blood were recovered 3 Swaran Singh pointed out a spot on the way to Saki nala where the two dead bodies were placed for a short time while they were being taken to Sakinala and the police scrapped blood stained earth from that spot He also led the police to the bank of Sakinala and pointed out the trunk of the body of Darshan Singh which was lying in the nala 4 Lachhman Singh who was arrested on the 28th Decem ber 1948 pointed out a dilapidated khola near Sakinala where 3 spears one kirpan and a datar all stained with human blood were recovered The learned Sessions Judge who heard the evidence seems to have been impressed by the evidence of the eye witnesses and he has summed up his conclusion in these words This evidence was so consistent so reliable and of such nature that in my opinion it is definitely established that the five accused Lachhman Singh Katha 844 Singh Massa Singh Charan Singh and Swaran Singh are proved to have actually murdered both Darshan Singh and Achhar Singh This fact is further proved from subsequent events as deposed by PW 8 Bahadur Singh and PW 9 Gian Singh and PW 11 Bhagwan Singh These witnesses had wit nessed the various recoveries in this case which were made at the instance of all the accused The learned Judges of the High Court though they re pelled most of the criticisms levelled against the witness es ultimately came to the conclusion that in all the circumstances of the case it would be proper not to rely upon the oral evidence implicating particular accused unless there is some circumstantial evidence to support it Having laid down this standard they examined the circum stantial evidence against each of the accused persons and upheld the conviction of the three appellants on the ground that the circumstantial evidence to which reference has been made was sufficient corroboration of the oral evi dence The case of the appellants was argued at great length by Mr Sethi who appeared for them and everything that could possibly be said in their favour was urged by him with great force and clarity Proceeding however upon the principles laid down by this court circumscribing the scope of a criminal appeal after the case has been sifted by the trial court and the High Court it seems to us that the question involved in the present appeal is a short and simple one According to our reading of the judgment of the High Court the learned Judges who dealt with the case did not condemn the oral evidence outright but as a matter of prudence and caution they decided not to convict an accused person unless there were some circumstances to lend support to the evidence of the eye witnesses with regard to him It is quite clear on reading the judgment that the corroboration which the learned judges required to satisfy themselves was not that kind of corroboration which one requires in the case of the evidence of an approver or an accomplice 845 but corroboration by some circumstances which would lend assurance to the evidence before them and satisfy them that the particular accused persons were really concerned in the murder of the deceased Judged by this standard which it was open to them to prescribe it seems to us that the case of each of the appellants clearly fell within the rule which they had laid down for their own guidance The comment of the learned counsel for the appellants with regard to the blood stained pyjama which was recovered from Massa Singh was firstly that it was not possible to gather from the evidence the extent of the blood stains and secondly that it would be highly improbable that this ac cused person would be so reckless as to continue to wear a blood stained pyjama after having perpetrated the crime This criticism has been considered by the courts below and it does not appear to us to be of such a nature as to affect the conclusion arrived at by them As to the recovery of blood stained weapons at the instance of Lachhman Singh it was urged that the entire evidence with regard to this recovery should be discarded as the police investigation in the case was not a straightforward one but was conducted in such a way as to raise suspicion that the police were delib erately trying to create some evidence of recovery against each of the accused persons It is sufficient to say that it is not the function of this court to reassess evidence and an argument on a point of fact which did not prevail with the courts below cannot avail the appellants in this court The comment against the discoveries made at the instance of Swaran Singh was that they are not admissible in evidence under section 27 of the Indian Evidence Act which provides When any fact is deposed to as discovered in conse quence of information received from a person accused of an offence in the custody of a police officer so much of such information whether it amounts to a confession or not as relates distinctly to the fact there by discovered may be proved 846 The main facts which it is necessary to state to under stand the argument on this point may be summed up as fol lows According to the prosecution all the three accused namely Katba Singh Massa Singh and Swaran Singh were interrogated by the police on the morning of the 19th Decem ber 1948 and they made certain statements which were duly recorded by the police In these statements it was disclosed that the dead bodies were thrown in the Sakinala Thereafter the police party with the three accused went to Sakinala where each of them pointed out a place where dif ferent parts of the dead bodies were discovered The learned counsel for the appellants cited a number of rulings in which section 27 has been construed to mean that it is only the information which is first given that is admissible and once a fact has been discovered in conse quence of information received from a person accused of an offence it cannot be said to be re discovered in conse quence of information received from another accused person It was urged before us that the prosecution was bound to adduce evidence to prove as to which of the three accused gave the information first The head constable who record ed the statements of the three accused has not stated which of them gave the information first to him but Bahadur Singh one of the witnesses who attested the recovery memos was specifically asked in cross examination about it and stated I cannot say from whom information was got first In the circumstances it was contended that since it cannot be ascertained which of the accused first gave the informa tion the alleged discoveries cannot be proved against any of the accused persons It seems to us that if the evidence adduced by the prosecution is found to be open to suspicion and it appears that the police have deliberately attributed similar confessional statements relating to facts discovered to different accused persons in order to create evidence against all of them the case Undoubtedly demands a most cautious approach 847 But as to what should be the rule when there is clear and unimpeachable evidence as to independent and authentic statements of the nature referred to in section 27 of the Evidence Act having been made by several accused persons either simultaneously or otherwise all that we wish to say is that as at present advised we are inclined to think that some of the eases relied upon by the learned counsel for the appellants have perhaps gone farther than is warranted by the language of section 27 and it may be that on a suitable occasion in future those cases may have to be reviewed For the purpose of this appeal however it is sufficient to state that even if the argument put forward on behalf of the appellants which apparently found favour with the High Court is correct the discoveries made at the instance of Swaran Singh cannot be ruled out of consideration It may be that several of the accused gave information to the police that the dead bodies could be recovered in the Sakinala which is a stream running over several miles but such an indefinite information could not lead to any discov ery unless the accused followed it up by conducting the police to the actual spot where parts of the two bodies were recovered From the evidence of the head constable as well as that of Bahadur Singh it is quite clear that Swaran Singh led the police via Salimpura to a particular spot on Sakinala and it was at his instance that blood stained earth was recovered from a place outside the village and he also pointed out the trunk of the body of Darshan Singh The learned judges of the High Court were satisfied as appears from their judgment that his was the initial pointing out and therefore the case was covered even by the rule which according to the counsel for the appellants is the rule to be applied in the present case The learned counsel for the appellants pointed out that the doctor who performed the post mortem examination of the corpses found partially digested rice in the stomach of the two deceased persons and he 110 848 urged that from this it would be inferred that the occurrence must have taken place sometime at night after the deceased persons had taken their evening meals together This argument again raises a question of fact which the High Court has not omitted to consider It may however be stated that a reference to books on medical jurisprudence shows that there are many factors affecting one s digestion and cases were cited before us in which rice was not fully digested even though considerable time had elapsed since the last meal was taken There are also no data before us to show when the two deceased persons took their last meal and what article of food if any was taken by them along with rice The finding of the doctor therefore does not neces sarily affect the prosecution case as to the time of occur rence It was also contended that there being no charge under section 302 read with section 34 of the Indian Penal Code the conviction of the appellants under section 302 read with section 149 could not have been altered by the High Court to one under section 302 read with section 34 upon the acquit tal of the remaining accused persons The facts of the case are however such that the accused could have been charged alternatively either under section 302 read with section 149 or under section 302 read with section 34 The point has therefore no force In our opinion there is no ground for interfering with the judgment of the courts below and we accordingly dismiss this appeal and uphold the conviction and sentence of the appellants We however wish to endorse the opinion of the High Court that having regard to the gruesome nature of the crime the sentence imposed by the Additional Sessions Judge was inappropriate and his reasons for imposing the lighter penalty are wholly inadequate Appeal dismissed Agent for the appellant RN Sachthey

The Roadside Station Masters of the Central Railway challenged the constitutionality of promotion for guards to higher grade station masters posts The petitioners contended that the channel of promotions amounted to a denial of equal opportunity as between Roadside Station Masters and Guards in the matter of promotion and thus contravened the provisions of article 161 of the Constitution as taking advantage of this channel of promo tions guards become station masters at a very much younger age than Roadside Station Masters and thus block the chances of higher promotion to Roadside Station Masters who reach the scale when they are much older The appellant contended that Roadside Station Masters and Guards really formed one and the same class of employees Held that the Roadside Station Masters belong to a wholly distinct and separate class from Guards and so there can be no question of equality of opportunity in matter of promotion as between the Roadside Station Masters and Guards The question of denial of equal opportunity requires serious consideration only as between the members of the same class The concept of equal opportunity in matters of employment does not apply to variations in provisions as between members of different classes of employees under the State Equality of opportunity in matters of employment can be predicated only 312 between persons who are either seeking the same employment or have obtained the same employment Equality of opportunity in matters of promotion must mean equality as between members of the same class of employee and not equality between members of separate independent classes The fact that the qualifications necessary for recruitment of one post and another are approximately or even wholly the same can in no way affect the question whether they form one and the same class or form different classes

minal Appeal No 48 of 1958 Appeal by special leave from the judgment and order dated July 4 1956 of the Calcutta High Court 321 in Criminal Revision No 1005 of 1955 arising out of the judgment and order dated July 21 1955 of the Additional Sessions Judge Asansol in Criminal Appeal No 125 of 1955 H J Umrigar and Sukumar Ghose for the appellants section M Bose Advocate General for the State of West Bengal A C Mitra D N Mukherjee and P K Bose for the respondent B Sen P K Chakravarty and B N Ghosh for the interveners November 25 The Judgment of the Court was delivered by SARKAR J There are five appellants before us Four of them were employees of a company called the Indian Iron Steel Co Ltd and the fifth an outsider The appellants were convicted by a Magistrate of Asansol in West Bengal of an offence under section 27 of the hereinafter referred to as the Act for having instigated and incited others to take art in an illegal strike Each appellant was sentenced to simple imprisonment for three months On appeal by the appellants the learned Additional Sessions Judge of Asansol confirmed the order of the learned Magistrate A petition to the High Court at Calcutta against the order of the learned Additional Sessions Judge by way of revision also failed The appellants have now appealed to this Court with special leave The respondent to this appeal is the State of West Bengal and the Company has been allowed to intervene The Company owns a factory at Burnpur near Asansol in which there is a Sheet Mill The factory was declared by the Government to be a public utility service There was a slow down strike in the Hot Mill section of the Sheet Mill The Company thereupon issued charge sheets to some of its workers including the four appellants in its employment for taking part in the slow down strike and instigating others to join it as also for other misconduct and 322 after an enquiry dismissed these four appellants from service On such dismissal the slow down strike gained in strength Thereupon on April 8 1953 the Company issued a notice to the workers of the Hot Mill the relevant portion of which is set out below The workers of the Hot Mills Sheet Mills are hereby notified that unless they voluntarily record their willingness to operate the plant to its normal capacity they will be considered to be no longer employed by the Company after which the Company will recruit other labour to man the Plant The workers must record their willingness before Friday 10th April 2 0 pm otherwise action as stated above will be taken As a result of this notice forty workers of the Hot Mill recorded their willingness but the rest who were about three hundred in number did not make any response at all In fact on April 11 1953 the workers in the entire Sheet Mill numbering about one thousand and three hundred went on a sit down strike which lasted till April 20 1953 On April 25 1953 the Company issued another notice to the workers which is set out below In accordance with General Manager s Notice dated the 8th April 1953 you have been considered to be no longer employed by the Company after 2 pm on Friday 10th April 1953 as you did not record your willingness before that date and time to operate the Plant to its normal capacity Your formal discharge from Company s service bad been kept pending in order to assure to the fullest that no one who wanted to work normally was being discharged on circumstantial assumptions Now however there are no further reasons to believe that every one concerned has not all necessary information about the facts of the case and every opportunity to form a correct and legitimate opinion on the utterly irresponsible attitude adopted by some of the workers A copy of the notice dated the 22nd April 1953 issued by the Directorate of Labour Government of 323 West Bengal which has already been widely circulated is attached herewith in English with translations in Bengali Hindi and Urdu You are therefore hereby given a final Notice that if by 11 am on 28th April 1953 you do not record your willingness to operath the Plant to its normal capacity your name will be removed from the Company s Roll and your discharge will become fully effective with all the implications of a discharge on grounds of serious breach of discipline and your place will be filled by promotion from amongst the existing men or by engaging new men After this notice the workers of the entire factory except those engaged in essential services went on a strike on April 271953 which lasted for twenty two hours On May 19 1953 the Company filed a complaint under section 27 of the Act with the sanction of the Government granted on May 2 1953 Out of this complaint the present appeal arises The respondent s case is that the strikes of April 11 to April 20 1953 and April 27 1953 were illegal and the appellants had instigated them The appellants have not in this Court challenged the finding of the Courts below that the strikes took place and that they had instigated them but they contend that the strikes were not illegal Section 27 of the Act provides that a person who instigates or incites others to take part in or otherwise acts in furtherance of a strike which is illegal under the Act commits an offence The respondent s case is that the strikes were illegal under section 241 of the Act which provides that a strike or a lock out shall be illegal if it is commenced or declared in contravention of section 22 There is no dispute that the strikes were in contravention of section 22 The appellants rely on section 243 of the Act under which a strike declared in consequence of an illegal lock out shall not be deemed to be illegal and say that the strikes had been in consequence of an illegal lock out by the Company of the three hundred workers of the Hot 324 Mill by the notices of April 8 and April 25 It is clear that if there was such a lock out it was illegal under section 241 for it would be clearly in contravention of section 22 The question then is was there a lock out by the Company The learned Advocate for the appellants first contends that the notices use the same words as are used in the definition of a lock out in section 21 of the Act and therefore by those notices the Company locked out the men We think that this argument is unfounded The definition so far as is material reads lock out means the refusal by an employer to continue to employ any number of persons employ ed by him In the notices the words are considered to be no longer employed while the definition uses the words refusal by the employer to continue to employ Therefore the words are not the same Furthermore the words used in the notices and in the definition have to be read in their respective contexts For reasons to appear later the words used in the notices meant a discharge of the employees from service while the words used in the definition do not contemplate such a discharge of the workmen The Courts below have come to the finding that by these notices the three hundred workers of the Hot Mill were discharged on April 10 1953 and had not been locked out The learned Advocate for the appellants says that in this the Courts were wrong He puts his arguments in two ways First he says that the notices did not effect a discharge till April 28 1953 and they had in the meantime resulted in a lockout of the workers from April 10 1953 in the sense that their services had not been terminated but they had not been allowed to attend to their duties Then he says that even if the notices effected a discharge then also there was a lock out for a discharge is equally a lock out within the meaning of its definition in the Act as the prevention by an employer of the workers from attending to their duties without discharging them is Did the notices then effect a discharge We agree with the Courts below that they did The learned 325 Advocate for the appellants contends that the two notices taken together make it perfectly clear that there was no discharge of any employee prior to 11 a m of April 28 1953 He says that the notice of April 25 shows that the notice of April 8 did not effect any discharge for the first mentioned notice jays that the formal discharge had been kept pending and it also required the workers to record their willingness to operate the plant to its normal capacity by 11 a m on April 28 and further stated that failing this their names would be removed from the Company s roll and their discharge would become fully effective We are unable to read the notices in the way suggested The notice of April 8 clearly stated that unless the workers notified their willingness to operate the plant to its normal capacity by 2 p m on April 10 they would be considered to be no longer in the employment of the Company It plainly meant that on their failure to record the willingness by the time mentioned the workers would cease to be in the employment of the Company that is in other words discharged Taken by itself we do not think it is capable of any other meaning We are also unable to agree that there is anything in the notice of April 25 which would show that a different meaning ought to be put on the words used in the notice of April 8 than they normally bear The later notice also states that the workers bad been considered to be no longer employed from April 10 Hence it maintains that the workers had been discharged on April 10 It no doubt says that the formal discharge had been kept pending but that only means as is clear from the last paragraph of the notice that the names of the workers had not been removed from the Company s roll The word formal must have its due meaning it emphasises that the real discharge had already taken place We may also state that it has not been contended before us that there can be no discharge till a worker s name is removed from the roll and without more we do not think that we would have accepted that contention if made The removal of the name of a worker from the roll follows his discharge and that is 42 326 what was meant by the statement in the notice that the formal discharge had been kept pending The circumstances which led to the issuing of the notice of April 25 also show that the workers had actually been discharged on April 10 What had happened was that the Labour Minister of the Government of West Bengal had intervened in the dispute between the Company and its workers He met the workers and on April 21 1953 that is after the termination of the first of the two strikes suggested certain terms for the settlement of the dispute His suggestion was that if the workers of the Hot Mills who stand discharged from 2 pm of April 10 1953 as a consequence of their disregarding the notice issued on 8th April 1953 report themselves for duty immediately and record their willingness to operate the plant to its normal capacity the Government would recommend their reinstatement to the Management A copy of this suggestion was forwarded to the Company by the Government with a request to implement the recommendations contained in it with a further request to give the suggestion a wide publicity The company circulated the Labour Minister s suggestion among the workers and to comply with his request to implement it it issued the notice of April 25 to which a copy of the suggestion was attached It is therefore clear that all that the Company intended to do by the notice of April 25 was to comply with the Government s suggestion and so to cancel the discharge of the workers of the Hot Mill which had already taken effect and reinstate them in their former employments if the workers carried out their part of the suggestion This notice therefore does not support the contention that the workers had not been discharged till April 28 1953 We may also state that there is no evidence that prior to 2 pm of April 10 1953 any employee had been prevented by the Company from attending to his duty The next question is whether a discharge of employees by an employer amounts to a lock out It is said that the words used in the definition of a lock out 327 namely the refusal by an employer to continue to employ any number of persons employed by him cover the discharge of employees by an employer The contention so raised was rejected by the Labour Appellate Tribunal in Presidency Jute Mills Co Ltd vs Presidency Jute Mills Co Employees Union 1 We are in entire agreement with the view there expressed It seems to us that to construe the definition as including a discharge would be against the entire tenor of the Act and also against the meaning of a lock out as understood in industrial relations By virtue of section 22 of the Act in a public utility service no worker can go on strike nor can an employer lock out his workmen without giving notice of strike or of lock out within six weeks before the strike or lock out as the case may be or within fourteen days of such notice or before the date fixed in such notice or during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion thereof Section 23 prohibits strikes and lock outs in other industrial establishments during the pendency of conciliation proceedings before a Board and for seven days thereafter Section 241 makes a strike and a lock out in contravention of sections 10 22 and 23 illegal Section 242 provides that a strike declared in consequence of an illegal lock out and a lock out declared in consequence of an illegal strike shall not be illegal Section 25 prohibits the spending of money on illegal strikes and lock outs The Act therefore treats strikes and lock outs on the same basis it treats one as the counterpart of the other A strike is a weapon of the workers while a lock out that of the employer A strike does not of course contemplate the severance of the relation of employer and employed it would be strange in these circumstances if a lock out did so Under the provisions of section 22 a lock out cannot be declared in a public utility service immediately it can be declared only after the date fixed in the notice and cannot be declared within fourteen days of the giving of the notice Now if a discharge is included in a 1 328 lock out an employer in such a service cannot discharge his employee except after the time specified Now that would often make it impossible for the employer to carry on his business It is conceivable that an employee may be guilty of such misconduct that his immediate discharge is essential Indeed there is no reason to think that such cases would be very infrequent In such a case if an employer is prevented on pain of being made criminally liable under section 27 from discharging the employee forthwith irreparable mischief may be caused to his works or serious personal injury to himself or his other employees We have no reason to think that the Act intended such a result Again if a lock out included a discharge then there would be a conflict between sections 22 and 23 on the one hand and section 33 on the other As has already been stated sections 22 and 23 prohibit a lock out of workers during the pendency of the conciliation proceedings therein mentioned and seven days thereafter According to the interpretation suggested by the learned Advocate for the appellants during this time no worker could at all be discharged for a lock out includes a discharge it being remembered that the prohibition in the section is absolute Under section 33 however an employer is prohibited during the pendency of a conciliation proceeding from discharging a workman concerned in the dispute for any misconduct connected with such dispute save with the express permission of the authority before whom the proceeding is pending So if a lock out includes a discharge under sections 22 and 23 there can be no discharge during the conciliation proceedings while under section 33 there could be one with the permission of the authority conducting the proceeding If a discharge amounted to a lock out an absurd result would thus be produced By an amendment made on October 2 1953 certain provisions have been introduced into the Act which would show clearly that a lock out as defined in section 21 which section has been left unaltered by the amendment was never intended to include a discharge of 329 workmen We refer first to section 2oo by which a new definition was introduced in the Act which so far as is necessary for the present purpose is in these words Retrenchment means the termination by the employer of the service of a workman for any reason whatsoever otherwise than as a punishment inflicted bY way of disciplinary action If lock out includes a discharge then retrenchment as defined in section 2oo would also clearly be a lock out Obviously if that were so then retrenchment would not have been separately defined Again tinder section 25F also introduced into the Act by the amendment a workman may be retrenched by paying him wages for a month the compensation provided and on notice to the Government If retrenchment was a form of lockout then there would clearly be a con flict between sections 22 and 23 on the one hand and section 25F on the other Section 2oo and section 25F were no doubt not in the Act at the date of the notices with which we are concerned but since section 21 was not amended it must be taken that its meaning remained after the amendment what it was before Since the amendment made it clear that section 21 did not include a retrenchment it follows that that definition did not include a retrenchment prior to the amendment If it did not then include a retrenchment neither could it include a discharge for plainly a retrenchment is but one form of discharge It therefore seems to us that the words refusal by an employer to continue to employ any number of persons employed by him in section 21 do not include the discharge of an employee We feel no difficulty in taking this view for it does not seem to us that the words refusal to continue to employ in section 21 plainly include a discharge These words have to be read with the rest of the definition and also the word lock out The other parts of the definition contemplate no severance of the relation of employer and employed The word lock out as stated in the Presidency Jute Mills Co s case 1 in its dictionary sense means refusal on the part of an employer to furnish work to his operatives except on conditions to 1 330 be accepted by the latter collectively Therefore inour opinion the rules of interpretation do not prevent us from giving to the words used in the definition the meaning a refusal by the employer to allow any number of persons employed by him to attend to their duties without effecting a termination of service as was done in the Presidency Jute Mills Co s case 1 which would avoid one part of the Act coming in conflict with another The last point raised is about the propriety of the sanction Section 341 of the Act provides No court shall take cognisance of any offence punishable under this Act save on complaint made by or under the authority of the ap propriate Government The learned Advocate for the appellants relying on Gokalchand Dwarkadas Morarka vs The King 2 where a provision somewhat similar to section 341 was considered by the Judicial Committee contended that the sanction granted in the present case by the Government of the West Bengal to file the complaint against the appellants was bad as it had been granted without reference to the facts constituting the offence It is true that the sanction does not on the face of it refer to the facts constituting the offence There is however ample evidence in this case which we did not understand the learned Advocate for the appellants to challenge and which clearly establishes that the entire facts connected with the offence had been placed before the sanctioning authority and the sanction had been granted on a consideration of them The Judicial committee in the case above mentioned itself observed that the sanction would be good if it was proved by evidence that it had been granted after all the necessary facts had been placed before the sanctioning authority though these facts might not have been stated on the face of the sanction itself It therefore seems to us that the sanction in the present case is unobjectionable We feel therefore that the appeal must fail We think it right however in the circumstances of this case and in view of the long lapse of time since the 1 1948 LR 75 IA 30 331 case started to modify the sentence passed In our view a sentence of simple imprisonment for the period already served and a fine of Rs 100 with simple imprisonment for a period of fifteen days in default of payment of the fine for each appellant will be sufficient in this case and we order accordingly Subject to this modification of the sentence this appeal is dismissed Appeal dismissed

On the judgment debtor s default in paying the agreed instalments of the decretal amount a receiver was appointed by the Court in execution of the decree under section 51 of the Code of Civil Procedure with power to sell the judgment debtor s property either by private agreement or public auction The receiver entered into an agreement with respondent No 2 a third party for the sale of the property for a larger sum than the decretal amount on the condition that the sale should be confirmed by the High Court The High Court allowed the decree holder s application for confirmation of the sale by the receiver but allowed the judgment debtor time to pay the balance of the decretal amount in which case the sale was not to be confirmed The judgment debtor made partial payments but failed to pay the entire decretal amount within the prescribed time and in spite of several opportunities given to him by the Court to do so He ultimately applied to the Court for cancellation of the agreement for sate by the receiver and prayed for leave to deposit the whole balance of the decretal amount I his was disallowed by a Single judge and on appeal by a Division Bench of the High Court The main question that arose for decision both in the High Court and Supreme Court oil appeal by special leave was whether the provisions of section 21 r 89 of the Code of Civil Procedure apply to a sale held by a receiver appointed by the Court The High Court answered this question in the negative Held that the High Court was right in refusing to entertain the appellant s applications under section 21 r 89 In a sale by the receiver lie is not required to issue a proclamation of sale as required by section 21 r 66 of the Code of Civil Procedure and as such the provisions of section 21 r 89 under which a sale proclamation is an essential element do not apply to a sale held by him Minatoonnessa Bibee and Others vs Khatoonnessa Bibi and Others Cal 479 Golam Hossein Cassin Ariff vs Fatima Begam jogemaya Dasee vs Akhoy Coomar Das Cal 140 Basir Ali vs Hafiz Nazir Ali Cal 124 and Rani Bala Bose and Others vs Hirendra Chandra Ghose and Others considered 199 Held further that the High Court was right in holding that the court s jurisdiction could not be invoked in favour of the appellant under section 151 of the Code of Civil Procedure in view of the fact that he committed repeated defaults in spite of several opportunities given to him by the Court to pay the balance of the decretal amount and that this court would not interfere with the discretion exercised by the High Court in such circumstances The order of the High Court confirming the sale by the receiver was not a conditional one It gave an opportunity to the judgment debtor to pay the decretal amount in the manner prescribed by it failing which the sale was to stand confirmed There is no scope for applying the principle that the court had inherent power to deal with an application to set aside an order made ex parte on a proper case being substantiated as laid down in section M Sudevi Devi vs Sovaram Agarwallah

ivil Appeal No 217 of 1959 Appeal by special leave from the judgment and order dated June 20 1958 of the Jammu and Kashmir High Court in Writ Petition No 108 of 1958 H N Sanyal Additional Solicitor General of India N section Bindra R H Dhebar and T M Sen for the appellants R K Garg and M K Ramamurthy section N Andley J B Dadachanji Rameshwar Nath and P L Vohra for the respondents November 26 The Judgment of the Court was delivered by SUBBA RAO J This appeal by special leave raises the question of the scope of article 1322 of the Constitution The first respondent is one of the shareholders of the second respondent Ms Jammu Kashmir Mechanics And Transport Workers Co operative Society Limited Jammu hereinafter called the Society The Society was registered under the Jammu and Kashmir Co operative Societies Act No 6 of 1993 Vikrimi They put in a number of applications before the third appellant for the grant of stage carriage and public carrier permits to them for various routes in the State of Jammu Kashmir but no permits were granted to them on the ground that under r 4 47 of the Jammu 348 and Kashmir Motor Vehicle Rules hereinafter called the Rules service licence could only be issued to a person or a company registered under the Partnership Act and that as the Society was neither a person nor a partner Ship it was not entitled to a licence under the Rules The respondents filed a petition in the High Court of Jammu Kashmir under section 103 of the Constitution of Jammu Kashmir challenging the vires of r 4 47 of the Rules To that petition the appellants herein viz the Government of Jammu Kashmir State the Transport Minister the Registering Authority and the Traffic Superintendent were made party respondents The High Court held that the said rule was ultra vires as offending article 14 of the Constitution and on that finding directed a writ of mandamus to issue against the appellants herein from enforcing the provisions of the said rule The appellants filed an application in the High Court for a certificate under article 1321 of the Constitution but the High Court rejected it on the ground that no substantial question of law as to the interpretation of the Constitution was involved in the case Therefter the appellants applied for special leave under article 1322 of the Constitution and this Court granted the same The order giving the special leave expressly granted liberty to the respondents herein to raise the question of the maintainability of the appeal at its final hearing Learned Counsel for the respondents raises a preliminary objection to the maintainability of the appeal Shortly stated his objection is that under article 1322 of the Constitution special leave can be given only if the Supreme Court is satisfied that the case involves a substantial question of law as to the interpretation of the Constitution that in the present case the interpretation article 14 of the Constitution has been well settled and put beyond dispute by a series of decisions of this court that therefore no question of law as to the interpretation of the Constitution much less a substantial question of law in regard to that mattter arises for consideration and that therefore no special leave can be granted under the said Article 349 This argument is sought to be met by the learned Additional Solicitor General in the following manner Whenever a question of classification is raised it involves the interpretation of article 14 of the Constitution with reference to the classification impugned To state it differently the argument is that the question in each case is whether the classification offends the principle of equality enshrined in article 14 Therefore whether a registered firm a limited company and a person have equal attributes is a question of interpretation of article 14 of the Constitution Before considering the validity of the rival contentions it would be convenient to ascertain precisely what was the question raised in the High Court and what was the decision given thereon by it The argument advanced before the High Court on behalf of the Society was that under r 4 47 a licence can be issued only to a person or a firm registered under the Partnership Act and not to a corporation registered under the Co operative Societies Act or otherwise and therefore the said rule being discriminatory in nature offends article 14 of the Constitution The learned AdvocateGeneral appearing for the appellants contended that under article 14 of the Constitution rational classification is permissible and the legislature has framed the impugned rule on such a basis the object of which is to safeguard the interest of the public The High Court after considering the rival arguments expressed the opinion that the said rule did not proceed on any rational basis of classification and that as a corporation had been arbitrarily singled out for discriminatory treatment the impugned rule offended the equality clause of the Constitution The appellants in their petition for special leave filed in this Court questioned the correctness of the conclusion of the High Court They asserted that the said rule was based upon reasonable classification and therefore could not be struck down as repugnant to article 14 of the Constitution In other grounds they elaborated the same point in an attempt to bring out the different attributes of the two classes affording an intelligible differentia for 45 350 classification They clearly posed the question proposed to be raised by them in the appeal as under Ground The Grouns iv The aforesaid rule 4 47 of the Motor Vehicles Rules is based upon reasonable classification and is and was perfectly intra vires and valid and could not be struck down as repugnant to article 14 of the Constitution of India Ground vi There is a marked difference between a corporate body and partnership registered under the Provisions of the Partnership Act and these points of difference provide an intelligible differentia for classification The Hon ble High Court has only referred to one point of difference and has overlooked other points of distinction and has erred in striking down the aforesaid rule 4 47 Ground viii Rule 4 47 was framed in the light of local conditions prevailing Co operative Societies and Corporations in the matter of transport were not considered to be proper objects for the grant of licence or permit The classification is rational and reasonable The exclusion of artificial persons from the ambit of the Rule is natural and not discriminatory The other grounds are only a further clarification of the said grounds In part It of their statement of case the appellants stated as follows It is now well established that while article 14 forbids class legislation it does not forbid reasonable classification for the purpose of legislation The respondents in their statement of case accepted the said legal position but contested the position that there was reasonable classification It is therefore manifest that throughout there has never been a controversy between the parties in regard to the interpretation of article 14 of the Constitution but their dispute centered only on the question whether the impugned rule stood the test of reasonable classification In the premises can special leave be granted to the appellants under Art 1322 of the Constitution Article 1322 reads Where the High Court has refused to give such a certificate the Supreme Court may if it is 351 satisfied that the case involves a substantial question of law as to the interpretation of the Constitution grant special leave to appeal from such judgment decree or final order Under cl 2 of article 132 there is no scope for granting a special leave unless two conditions are satisfied i the case should involve a question of law as to the interpretation of the Constitution and ii the said question should be a substantial question of law The principle underlying the Article is that the final authority of interpreting the Constitution must rest with the Supreme Court With that object the Article is freed from other limitations imposed under articles 133 and 134 and the right of appeal of the widest amplitude is allowed irrespective of the nature of the proceedings in a case involving only a substantial question of law as to the interpretation of the Constitution What does interpretation of a provision mean Interpretation is the method by which the true sense or the meaning of the word is understood The question of interpretation can arise only if two or more possible constructions are sought to be placed on a provision one party suggesting one construction and the other a different one But where the parties agree on the true interpretation of a provision or do not raise any question in respect thereof it is not possible to hold that the case involves any question of law as to the interpretation of the Constitution On an interpretation of article 14 a series of decisions of this Court evolved the doctrine of classification As we have pointed out at no stage of the proceedings either the correctness of the interpretation of article 14 or the principles governing the doctrine of classification have been questioned by either of the parties Indeed accepting the said doctrine the appellants contended that there was a valid classification under the rule while the respondents argued contra The learned Additional Solicitor General contended for the first time before us that the appeal raised a new facet of the doctrine of equality namely whether an artificial person and a natural person have equal attributes 352 within the meaning of the equality clause and therefore the case involves a question of interpretation of the Constitution This argument if we may say so involves the same contention in a different garb If analysed the argument only comes to this as an artificial person and a natural person have different attributes the classification made between them is valid This argument does not suggest a new interpretation of article 14 of the Constitution but only attempts to bring the rule within the doctrine of classification We therefore hold that the question raised in this case does not involve any question of law as to the interpretation of the Constitution Assuming that the case raises a question of law as to the interpretation of the Constitution can it be said that the question raised is a substantial question of law within the meaning of cl 2 of Art 14 This aspect was considered by the Federal Court in T M KrishnaswamyPillai vs Governor General In Council 1 That decision turned upon the provisions of section 205 of the Government of India Act 1935 The material section 205 1 An appeal shall lie to the Federal Court from any judgment decree or final order of a High Court if the High Court certifies that the case involves a substantial question of law as to the interpretation of this Act or any Order in Council made thereunder The Madras High Court gave a certificate to the effect that the case involved a substantial question of law as to the interpretation of section 2403 of the Government of India Act 1935 Under section 2403 of the said Act no person who was a member of civil service of the Crown in India or held any civil post under the Crown in India could be dismissed or reduced in rank until he had been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him The High Court on the facts found held that the appellant therein had been offered A reasonable opportunity of showing cause within the meaning 1 1947 52 CWN FR 1 part of that section says 353 of the said section but gave a certificate under section 2051 of the Government of India Act 1935In dealing with the propriety of issuing the certificate in the circumstances of that case Zafrulla Khan J speaking on behalf the Court concisely and pointedly stated at p 2 It was urged before us that the case involved a question relating to the interpretation of sub section 3 of section 240 of the Act To the extent to which any guidance might have been needed for the purposes of this case on the interpretation of that sub section that guidance was furnished so far as this Court is concerned in its judgment in Secretary of State for India vs IM Lal 1945 FCR 103 The rest was a simple question of fact In our judgment no substantial question of law as to the interpretation of the Constitution Act was involved in this case which could have formed the basis of a certificate under section 2051 of the Act On the question of interpretation of article 14 of the Constitution this Court in Budhan Choudhry vs The State of Bihar 1 explained the true meaning and scope of that Article thus It is now well established that while article 14 forbids class legislation it does not forbid reason able classification for the purposes of legislation In order however to pass the the test of permissible classification two conditions must be fulfilled namely i that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and ii that that differentia must have a rational relation to the object sought to be achieved by the statue in question The classification may be founded on different bases namely geographical or according to objects or occupations or the like What is necessary is that there must be nexus between the basis of classification and the object of the Act under consideration 1 1049 354 This in only a restatement of the law that has been enunciated by this Court in Chiranjit Lal Chowdhuri vs The Union of India 1 and in other subsequent decisions The said principles were reaffirmed in the recent decisions of this Court in Rama Krishna Dalmia vs Justice Tendolkar 2 and in Mohammed Haneef Qureshi vs State of Bihar 3 In view of the said decision there is no further scope for putting a new interpretation on the provisions of article 14 of the Constitution vis a vis the doctrine of classification The interpretation of article 14 in the context of classifi cation has been finally settled by the highest Court of this land and under article 141 of the Constitution that interpretation is binding on all the Courts within the territory of India What remained to be done by the High Court was only to apply that interpretation to the facts before it A substantial question of law therefore cannot arise where that law has been finally and authoritatively decided by this Court In the result we accept the preliminary objection and dismiss the appeal with costs Appeal dismissed

Three persons K M and S who were accused of murder made statements to the police which disclosed that the dead bodies after being dismembered were thrown into a stream and the police party thereafter went with the three accused to the stream where each of them pointed out a place where different 109 840 parts of the dead bodies were discovered It was contended on behalf of the accused that it was only the information which was first given that was admissible under sec 27 of the Evidence Act that once a fact has been discovered in consequence of information received from a person accused of an offence it cannot be said to be re discovered in consequence of information received from another accused person and that in the absence of evidence to show which of the accused first gave the information the discoveries alleged cannot be proved against any of the accused persons Held that even assuming that this argument was correct as it appeared from the evidence that S led the police to a particular spot on the stream and it was at his instance that some blood stained earth was recovered from a place outside the village and he had also pointed out the trunk of one of the dead bodies and the High Court was satisfied that there was an initial pointing out by S the case was covered by the rule and the evidence as to the discoveries was admissible With regard to the rule applicable to cases where there is clear and unimpeachable evidence as to independent and authentic statements of the nature referred to in sec 27 of the Evidence Act having been made by several accused persons either simultaneously or otherwise some of the decided cases have gone further than is warranted by the language of sec 27 of the Evidence Act and may have to be reviewed on a future occasion

Appeal No 301 of 1959 Appeal by special leave from the judgment and order dated December 10 1958 of the Allahabad High Court in First Appeal No 382 of 1958 arising out of the judgment and order dated August 6 1958 of the Election Tribunal Kanpur in Election Petition No 284 of 1957 N C Chatterjee R K Garg section C Agarwal D P Singh V A Sayid Muhammad Janardan Sharma and M K Ramamurthi for the appellant A V Viswanatha Sastri and K P Gupta for the respondent 291 1959 November 20 The Judgment of the Court was delivered by SUBBA RAO J This appeal by special leave is directed against the judgment of the High Court of Judicature at Allahabad setting aside that of the Election Tribunal Kanpur dismissing the petition filed by the respondent for setting aside the election of the appellant as a member of the Parliament from the Kanpur constituency In February March 1957 elections were held to fill up a parliamentary seat from the single member constituency No 331 Kanpur Sri section M Banerji Sri Suraj Prasad and four others were candidates for the said election The said persons filed their nomination papers between 19th and 29th January 1957 The appellant was employed as Supervisor A Grade at the Government Ammunition Factory Kirkee and was dismissed from service on January 24 1956 for a reason other than corruption or disloyalty to the state and he was duly qualified to stand for the election He also filed his nomination paper within the prescribed time and ex facie it complied with all the provisions of the Representation of the People Act 1951 43 of 1951 as amended by Act XXVII of 1956 hereinafter called the Act and did not disclose any disqualifications The Returning Officer held scrutiny of the nomination papers on February 1 1957 As no objection was taken to the appellant s nomination the Returning Officer accepted it under section 36 of the Act without making any enquiry The polling took place on March 6 1957 and the result was declared on March 13 1957 The appellant having secured the largest member of votes was declared duly elected On April 24 1957 the respondent who is one of the voters in the said constituency presented a petition before the Election Commission New Delhi praying that the election of the appellant be declared void In the petition he alleged ten grounds to sustain his petition The Election Commission constituted an Election Tribunal in the manner prescribed by the Act and referred the petition to the said Tribunal for trial On July 17 1957 ie after the prescribed period 292 of limitation of 45 days had expired the respondent filed an application for amendment of the election petition The amendments sought to be made in the election petition were as follows a In paragraph No 5 clause i figure 9 between the words under section and clause is a typing mistake for figure 33 In place of figure 9 figure 33 be substituted b In paragraph No 5d at the end of the paragraph the following sentence be added The nomination paper of the respondent presented before the Returning Officer was not accompanied by a certificate of the Election Commission to the effect that he has not been dismissed for disloyalty or corruption The improper acceptance of the nomination paper being that of the returned candidate there is a presumption that the result of the election has been materially affected On August 3 1957 the respondent filed another application for amendment seeking the second amendment in an abbreviated form The proposed amendment was as follows b In paragraph No 5d at the end of paragraph the following sentence be added in the petition and such a certificate did not accompany the nomination paper of the respondent and the acceptance of his nomination paper materially affected the result of the election By an order dated August 12 1957 the Election Tribunal dismissed the petition on the round that the amendments sought to introduce a new ground after the prescribed period of limitation and therefore it had no power to allow the same After dismissing the application the Tribunal took up the main petition for disposal and after recording the findings on the issues raised dismissed the same with costs Against the said judgment the respondent preferred an appeal under section 116A of the Act to the High Court Before the High Court the learned Counsel for the respondent withdrew the prayer for amendment of 293 sub paragraph 1 of paragraph 5 of the election petition and confined his relief only to the amendment asked for in paragraph 5d of the election petition ie he sought to bring in the amendment under the head improper acceptance of the nomination paper The High Court found on the construction of the pleadings that the allegations found in the original petition were sufficient to bring in the case under section 1001di of the Act ie under the head improper acceptance and therefore the amendment asked for was only a clarification but not an introduction of a new ground in the result the High Court set aside the order of the Tribunal and directed it to decide the issues that arose out of the averment made in the amended para 5d of the election petition The present appeal was filed by special leave against the said judgment of the High Court The contentions of the learned Counsel Mr N C Chatterjee for the appellant may be briefly put thus The ground for relief in the election petition was based on improper acceptance of the appellant s nomination within the meaning of section 1001di of the Act and no alternative ground tinder sub cliv of cld section 1001 was alleged There was proper acceptance of the nomination paper and therefore the High Court or the Tribunal had no power to introduce by amendment a new ground namely that the result of the election had been materially affected by the non compliance with the provisions of the Act and particularly when the ground based upon section 33 of the Act was given up by the respondent He relies upon for the first proposition on the decision of this Court in Durga Shankar Mehta vs Thakur Raghuraj Singh 1 and for the second on the decision of this Court in Harish Chandra Bajpai vs Triloki Singh 2 Mr A V Viswanatha Sastry the learned Counsel for the respondent contends that the said two decisions were wrongly decided and require reconsideration and that in any event the amendment asked for clearly falls within the scope of the later decision He 1 1955 1 SCR 267 2 38 294 further contends that on a fair reading of the relevant allegations in the petition as originally presented it would be clear that the respondent stated all the necessary facts to sustain the ground he had taken in the amendment petition and that by the amendment he was only seeking to clarify the said ground In any view he argues that the appellate Court on a careful construction of the pleadings has held that the petition in substance disclosed the said ground and the question of correctness of the said decision does not legitimately fall within the discretionary jurisdiction of this Court under article 136 of the Constitution At the outset the relevant provisions of the Act may be noticed The said provisions read section 9 3 If any question is raised as to whether a person who having held any office referred to in clause f of section 7 has been dismissed is disqualified under that clause for being chosen as a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State the production of a certificate issued in the prescribed manner by the Election Commission to the effect that such person has not been dismissed for corruption or disloyalty to the State shall be conclusive proof that he is not disqualified under that clause section 33 3 Where the candidate is a person who having held any office referred to in clause f of section 7 has been dismissed and a period of five years has not elapsed since the dismissal such person shall not be deemed to be duly nominated as a candidate unless his nomination paper is accompanied by a certificate issued in the prescribed manner by the Election Commission to the effect that he has not been dismissed for corruption or disloyalty to the State section 36 1 On the date fixed for the scrutiny of nominations under section 30 the candidates their election agents one proposer of each candidate and one other person duly authorized in writing by each candidate but no other person may attend at such 295 time and place as the returning officer may appoint and the returning officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in section 33 2 The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may either on such objection or on his own motion after such summary inquiry if any as he thinks necessary reject any nomination on any of the following grounds a b that there has been a failure to comply with any of the provisions of section 33 or section 34 or c section 100 1 Subject to the provisions of sub section 2 if the Tribunal is of opinion d that the result of the election in so far as it concerns a returned candidate has been materially affected i by the improper acceptance of any nomination or iv by any non compliance with the provisions of the Constitution or of this Act or of any other rules or orders under this Act the Tribunal shall declare the election of the returned candidate to be void The foregoing provisions so far relevent to the present enquiry may be summarised thus If a candidate has been dismissed from Government service and a period of five years has not elapsed since dismissal he will have to file along with the nomination paper a certificate issued in the prescribed manner by the Election Commission to the effect that he has not been dismissed for corruption or disloyalty to the State If it has not been done the Returning Officer either suo motu or on objections raised by the opposite party has to reject the nomination If the nomination paper does not disclose any such defect and if the 296 Returning Officer has no knowledge of that fact he has no option but to accept the nomination The Returning Officer may improperly accept a nomination paper though it discloses the said defect and though an objection is raised to its reception on that ground Section 1001di of the Act deals with improper acceptance of any nomination and section 1001div permits an attack on the ground among others of non compliance with the provisions of the Act Before we consider the contentions of the parties it would be convenient to appreciate the true scope of the two decisions of this court in the light of the arguments advanced by the learned Counsel The first decision is in Durga Shankar Mehta vs Thakur Raghuraj Singh 1 This decision turns upon the provisions of sub section 1c and sub section 2c of section 100 of the Representation of the People Act 1951 before it was amended by Act XXVII of 1956 Sub section 1c and sub section 2c in so far as they are material to the present discussion correspond to section 1001di and section 1001div respectively of the amended Act This case arose out of an election held in December 1951 for the double member Lakhnadon Legislative Assembly Constituency in Madhya Pradesh one of the seats being reserved for Scheduled Tribes The appellant and respondents 1 35 and 7 therein were duly nominated candidates for the general seat in the said constituency while respondents Nos 2 4 and 6 were nominated for the reserved seat No objection was taken before the Returning Officer in respect _of the nomination of either the appellant or respondent No 2 The appellant and respondent No 2 were declared elected to the general and reserved seat respectively The respondent No 1 filed an election petition against the appellant and the other respondents for setting aside the election as wholly void One of the allegations was that the respondent No 2 was at all material times under 25 years of age and was consequently not qualified to be chosen to fill a seat in the Legislative Assembly of a State under article 173 of the Constitution The Election Tribunal held that the 1 1955 1 SCR 267 297 acceptance by the Returning Officer of the nomination of respondent No 2 amounted to an improper acceptance of nomination within the meaning of section 1001c of the Act and on that ground declared that the entire election was void The candidate who was elected to the general seat preferred an appeal to this Court and contended that his nomination had been properly accepted by the Returning Officer and therefore if respondent No 2 was not duly qualified to be elected his election alone should be declared void on the ground that such disqualification shall fall under sub section 2c of section 100 and not under sub section 1c thereof This Court accepted the contention and in that context defined the import of improper acceptance within the meaning of section 1001c of the Act Mukherjea J as he then was delivering the judgment of the Court observed at p 277 If the want of qualification of a candidate does not appear on the face of the nomination paper or of the electoral roll but is a matter which could be established only by evidence an enquiry at the stage of scrutiny of the nomination papers is required under the Act only if there is any objection to the nomination The Returning Officer is then bound to make such enquiry as he thinks proper on the result of which he can either accept or reject the nomination But when the candidate appears to be properly qualified on the face of the electoral roll and the nomination paper and no objection is raised to the nomination the Returning Officer has no other alternative but to accept the nomination This would be apparent from section 36 subsection 7 of the Act The learned Judge proceeded to state at p 278 It would have been an improper acceptance if the want of qulification was apparent on the electoral roll itself or on the face of the nomination paper and the Returning Officer overlooked that defect or if any objection was raised and enquiry made as to the absence of qualification in the candidate and the Returning Officer came to a wrong conclusion on the materials placed before him When neither 298 of these things happened the acceptance of the nomination by the Returning Officer must be deemed to be a proper acceptance This judgment therefore is a clear authority for the proposition that if the want of qualification does not appear on the face of the nomination paper and if no objection is raised on that ground before the Returning Officer the acceptance of the nomination must be deemed to be a proper acceptance Mr AV Viswanatha Sastry the learned Counsel for the respondent attacks the correctness of this decision Broadly stated his criticism is that the proceedings before the Returning Officer are summary proceeding and that the election petition is not an appeal from the order of the Returning Officer but is an original petition seeking to set aside the election and that in such a petition the aggrieved party has the right to seek to set aside the election on all or any of the grounds mentioned in section 100 of the Act and that as one of the grounds is the improper acceptance of the nomination paper he could establish by evidence that the acceptance of the nomination by the Returning Officer was in the derogation of the statutory provisions such as those relating to the absence of qualification in the candidate or the filing of his nomination paper unaccompanied by a certificate within the meaning of section 333 of the Act In support of this contention reliance is placed upon another decision of this Court in Veluswami vs Raja Nainar 1 The point raised and decided in that case was whether an enquiry before the Election Tribunal was not restricted to the material placed before the Returning Officer relating to a ground but all evidence bearing on that ground could be adduced before that Tribunal There unlike here at the time of scrutiny of the nominations objection was taken to the nomination of the candidate on the ground that he was the Head Master of the National Training School Tiruchendur which was a Govern ment aided school and therefore be was disqualified under section 7 cls d and e of the Act The Returning 1 299 Officer upheld the objection In a petition to set aside the election the returned candidate pleaded that the candidate whose nomination was rejected was not qualified to be chosen not merely on the ground put forward before the Returning Officer but also on other grounds This Court held that it is open to a party to put forward all grounds in support or negation of the claim subject only to such limitations as may be found in the Act notwithstanding that some of the grounds were not taken before the Returning Officer The reason for the decision is found at p 426 and it reads An election petition is an original proceeding instituted by the presentation of a petition under section 81 of the Act All the parties have the right to adduce evidence and that is of the essence of an original proceeding as contrasted with a proceeding by way of appeal That being the character of the proceedings the rule applicable is that which governs the trial of all original proceedings that is it is open to a party to put forward all grounds in support of or negation of the claim subject only to such limitations as may be found in the Act The learned Judge elaborated the point at a subsequent stage of the judgment thus The enquiry which a returning officer has to make under section 36 is summary in character He may make such summary enquiry if any as he thinks necessary be can act suo motu Such being the nature of the enquiry the right which is given to a party under section 1001c and section 1001di to challenge the propriety of an order of rejection or acceptance of a nomination paper would become illusory if the Tribunal is to base its decision only on the materials placed before the returning officer When the attention of the Court was invited to the decision in Durga Shankar Mehta vs Thakur Raghuraj Singh1 the Court distinguished that decision in the following manner This is not a direct pronouncement on the point now in controversy and that is conceded 1 1955 1 SCR 267 300 The two decisions can stand together and they deal with two different situations in the former no objection was raised at all to the nomination while in the latter an objection was raised on the ground of disqualification but in the election petition additional grounds of disqualification were alleged and sought to be proved one is concerned with a case of improper acceptance and the other with a case of improper rejection Though some of the observations in the later decision may well have been advanced to come to a contrary conclusion in the earlier decision Venkatarama Ayyar J who was party to both the decisions distinguished the earlier one on the ground that it was not a direct pronouncement on the question raised in the later The earlier decision is that of five Judges but the later is of three Judges The learned Judges who decided the later case did not see any conflict between their decision and that of the earlier one Though there is some force in the argument advanced by Mr A V Viswanatha Sastry and if it were res integra some of us might be inclined not to agree with the reasoning and the conclusion of the earlier judgment this Court is bound by its earlier decision and we do not see any justification to refer the question to a larger bench particularly as we have come to the conclusion that the High Court was not justified in interfering with the order passed by the Tribunal in its discretion disallowing the material amendment The second case is a decision of four Judges and it defines the powers of the Election Tribunal in the matter of amendment of pleadings This decision also turns upon the relevant provisions of Act 43 of 1951 before it was amended by Act 27 of 1956 Section 833 of the Act before the amendment corresponds to section 905 of the amended Act In other respects so far as it is material to the question raised no change has been introduced in the other relevant sections In this case the respondent in the appeal filed an election petition challenging the election of the appellants to the UP Legislative Assembly on the ground that they had committed corrupt practices the material 301 allegations being i that the appellants could in the furtherance of their election enlist the support of certain Government servants and ii that the appellant No 1 had employed two persons in excess of the prescribed number for his election purposes No list of particulars of corrupt practices was attached to the petition Long after the period of limitation prescribed for the filing of election petitions the respondent applied for amendment of his petition by adding the names of certain village Headmen Mukhias as having worked for the appellants and later on becoming their polling agents The Election Tribunal allowed the amendment on the ground that the allegations sought to be introduced by the amendment were mere particulars of the charge already made Holding that corrupt practice had been committed by the appellants it declared their election void under section 1002b of the Act The appellants preferred an appeal against that order to this Court and contended that the Election Tribunal had no power either under section 833 of the Act or under Order VI rule 17 of the Code of Civil Procedure to allow the amendment In that context this Court elaborately considered the scope of the power of the Election Tribunal to amend the pleadings in an election dispute and summarized its views in the following two propositions at p 392 1 Under section 833 the Tribunal has power to allow particulars in respect of illegal or corrupt practices to be amended provided the petition itself specifies the grounds or charges and this power extends to permitting new instances to be given 2 The Tribunal has power under 0 VI r 17 to order amendment of a petition but that power cannot be exercised so as to permit new grounds or charges to be raised or to so alter its character as to make it in substance a new petition if a fresh petition on those allegations will then be barred On the basis of those propositions this Court held that the petition as originally presented did not allege that the appellants had committed corrupt practices and therefore that the allegations sought to be introduced 39 302 by the amendment namely that two village Headmen section worked for the appellants and later on became their polling agents so radically altered the character of the petition as originally framed as to make it practically a new petition and so it was not within the power of the Tribunal to allow amendments of that kind Even if the Tribunal had the power under 0 VI r 17 of the Code of Civil Procedure to permit an amendment raising a new charge the Court held that it did not under the circumstances exercise a sound and judicial discretion in permitting the amendment in question It may be noticed that in that case the question turned upon the construction of section 83 sub sections 2 and 3 of the Act Though in that case this Court was concerned with the powers of an Election Tribunal to amend the petition beyond the period of limitation the discussion of the Court covered a wider field presumably because the Court intended to settle the principles governing the power of Election Tribunals to amend pleadings with a view to prevent confusion and to stabilize the procedure This Court rejected the argument that 0 VI r 17 of the Civil Procedure Code does not apply to election petitions It was observed at p 389 We are accordingly of opinion that the application of 0 VI r 17 Civil Procedure Code to the proceedings before the Tribunal is not excluded by section 833 It was contended for the appellant in that case that even if section 833 of the Act did not exclude the application of 0 VI r 17 Civil Procedure Code to the proceedings before the Tribunal the exercise of the power under that rule must nevertheless be subject to the conditions prescribed by section 81 for presentation of an election petition that one of those conditions was that it should be presented within the time allowed therefor and that accordingly no amendment should be allowed which would have the effect of defeating that provision After considering the English decisions on the statutory provisions which are pari materia with our enactments the Court held that the Election Tribunal had no power to permit a new ground to be 303 raised beyond the time of limitation prescribed by section 81 of the Act Mr A V Viswanatha Sastry contended that the learned Judges having rightly conceded the power of the Election Tribunal to amend the pleadings under 0 VI r 17 Civil Procedure Code went wrong in limiting that power in the way they did and that the reason advanced by them in limiting that power equally applies to the pleadings in a suit for it is said under the Indian Limitation Act every suit filed beyond the prescribed period of limitation shall be dismissed although limitation has not been set up as a defence There is no doubt some force in this contention but this argument was presumably advanced before the learned Judges and was negatived on the following ground stated at p 392 The Tribunal sought to get over this difficulty by relying on the principle well established with reference to amendments under 0 VI r 17 that the fact that a suit on the claim sought to be raised would be barred on the date of the application would be a material element in deciding whether it should be allowed or not but would not affect the jurisdiction of the court to grant it in exceptional circum stances as laid down in Charan Das vs Amir Khan 1 But this is to ignore the restriction imposed by section 902 that the procedure of the court under the Code of Civil Procedure in which 0 VI r 17 is comprised is to apply subject to the provisions of the Act and the rules and there being no power conferred on the Tribunal to extend the period of limitation prescribed an order of amendment permitting a new ground to be raised beyond the time limited by section 81 and r 119 must contravene those provisions and is in consequence beyond the ambit of authority conferred by section 902 This passage indicates that the learned Judges were aware of the argument now advanced and for the reason mentioned by them namely that unlike a civil suit wherein the Court can extend the period of limitation in a proper case the Tribunal has no such power rejected the argument We are bound by this decision 1 1920 LR 47 IA 255 304 As this stage we must guard against one possible misapprehension Courts and Tribunals are constituted to do justice between the parties within the confines of statutory limitations and undue emphasis on technicalities or enlarging their scope would cramp their powers diminish their effectiveness and defeat the very purpose for which they are constituted We must make it clear that within the limits prescribed by the decisions of this Court the discretionary jurisdiction of the Tribunals to amend the pleadings is as extensive as that of a civil Court The same well settled principles laid down in the matter of amendments to the pleadings in a suit should also regulate the exercise of the power of amendment by a Tribunal This aspect has not been ignored by this Court in the aforesaid decision and the Court observed at p 394 It is no doubt true that pleadings should not be too strictly construed and that regard should be had to the substance of the matter and not the form The foregoing discussion yelds the following results 1 Sub cls i and iv of section 10011d of the Act provide for two distinct grounds the former for the case of improper acceptance of any nomination and the latter for that of non compliance with the provisions of the Constitution or of the Act or of any rules or orders made under the Act 2 when the candidate appears to be properly qualified on the face of the electoral roll and the nomination paper and no objection is raised to the nomination the acceptance of the said nomination by the Returning Officer must be deemed to be proper acceptance 3 even if there is a proper acceptance it is open to the petitioner to question the validity of the election under section 1001div on other grounds namely that the candidate whose nomination was accepted was not qualified at all or could not be deemed to be duly nominated as a candidate for the reason that he did not comply with the provisions of section 333 of the Act and 4 if the second ground in substance is not taken in the petition substance is more important than form the Tribunal has no power after the prescribed period of limitation for the filing 305 of the petition to allow an amendment introducing the second ground With this background we shall proceed to scrutinize the pleadings in the light of the rival contentions The election petition contains seven paragraphs The relief claimed is that the election of the appellant from the parliamentary constituency No 331 Kanpur be declared void The first paragraph gives the credentials of the petitioner to enable him to file the petition Paragraphs 2 and 3 give the sequence of events which ended in the declaration of the appellant as duly elected from the constituency to the Parliament Paragraph 5 states that the election of the appellant is void and is liable to be set aside on the ten grounds among others specified therein Paragraph 6 states that the cause of action accrued to the petitioner on or about January 29 1957 when the nomination papers were filed for the said election and subsequent thereto Now coming to the grounds in sub paraa b and c of para 5 it is stated that the appellant had been dismissed by Government from service on charges of disloyalty and gross misconduct on January 24 1956 but he did not submit to the aid order and filed a writ petition in the High Court at Calcutta questioning the validity of the said order that under the circumstances he should be deemed to be a Government servant and therefore he was not competent to be nominated as a candidate for election to Parliament Sub paragraph d is the most important paragraph to the present enquiry and therefore it may be extracted in full It reads That apart from the above mentioned reasons the nomination paper of the respondent was also improperly accepted by the Returning Officer in asmuch as the respondent having been dismissed from Government Service did not obtain a certificate in the prescribed manner from the Election Commission to the effect that he had not been dismissed for corruption or disloyalty to the State This sub paragraph in clear and unambiguous terms raises the ground of improper acceptance of the nomination paper by the Returning Officer ie the ground 306 covered by section 1001di of the Act The reason for sustaining the said ground is stated to be that having been dismissed from Government service he did not obtain a certificate in the prescribed manner from the Election Commission Ex facie this sub paragraph does not refer to section 333 or to the contents of that sub section A nomination paper may be accepted by the Returning Officer in spite of one or other of the following two defects i the candidate who has been dismissed may have filed the nomination paper without its being accompanied by a certificate issued in the prescribed manner by the Election Commission to the effect that he has not been dismissed from service for corruption or dis loyalty to the State vide section 333 and ii the candidate has been disqualified for being chosen as a member of Parliament vide section 93 In this subparagraph in support of the ground that the nomination of the appellant was improperly accepted reference was made to the second defect and not to the first That this must have been the intention of the respondent is also made clear from the circumstance that in sub para i reference was made to the latter sub section but not to the former The argument that the opening words of sub para d That apart indicate that this is a ground in addition to the ground based on the non obtaining of a certificate in the prescribed manner and therefore should only refer to the non accompaniment of a certificate has no force for sub paras a b and c which precede sub para d raise a different point altogether namely that notwithstanding the dismissal as the appellant had filed a petition in the High Court questioning the validity of the order of dismissal he was still a Government servant on the crucial date Be it as it may the important point to be noticed is that sub paragraph d raises a ground under sub cl i and not under subcl iv of section 1001d of the Act and even if the facts mentioned therein are disannexed from the ground they refer only to the disqualification of the appellant to stand as a candidate for the election and not to the procedural defect covered by section 333 of the Act Subparagraphs e f and g relate to the objections 307 which are not material for the present inquiry Sub paragraph h contains a general statement that the appellant was disqualified to be chosen to fill the parli mentary seat Sub paragraph i specifically refers to section 93 of the Act We are not also concerned with the allegations in sub para j The foregoing analysis of the allegations in the petition so far as they are relevant to the question raised discloses the following two circumstances i the ground taken in the petition was that there was an improper acceptance of the nomination covered by section 1001di for the reason that the appellant having been dismissed from Government service did not obtain a certificate in the prescribed manner and ii there was no ground which would fall under sub cl iv of section 1001d of the Act viz that the appellant was not to be deemed to be duly nominated as a candidate as his nomination paper was not accompanied by a certificate issued in the prescribed manner by the Election Commission to the effect that he had not been dismissed for corruption or disloyalty to the State In the application for amendment which was filed after the prescribed period of limitation two amendments were asked for one to sub para i of para 5 and the other to sub para d thereof The former was for substituting the figure 33 for the figure 9 and the latter to introduce a statement in that paragraph to the effect that the nomination paper was not accompanied by the prescribed certificate The subsequent petition as we have already noticed sought for the same amendment to para 5d in an abbreviated form But what is important to notice is that even the proposed amendment sought to bring in the said statement under the ground of improper acceptance and not under section 1001di of the Act The appellant filed a counter affidavit opposing both the amendments The Tribunal noticed the judgment of this Court and applied the principles laid down therein to the facts before it It also considered in detail the allegations in the petition and arrived at the following findings i All what has been urged throughout is that the respondent was a Government servant or a 308 dismissed Government servant and no certificate having been obtained from the Election Commission about his dismissal not being for corruption or disloyalty he was not eligible for election as a candidate to the House of the People and ii sub section 3 of section 33 which is a provision laying down a certain procedure was never in the mind of the petitioner while the petition was being drafted or prepared and that is why we find no reference to the certificate not being filed with the nomination paper He concludes his discussion thus It would thus be seen that the amendment sought by the petitioner offends against the conditions laid down by their lordships of the Supreme Court in Harish Chandra Bajpai vs Triloki Singh 1 relating to the application of Order VI rule 17 of the Civil Procedure Code to proceedings before an Elettion Tribunal It has been specifically laid down that an amendment will not be allowed if the effect of it be to permit a new ground or charge to be raised or to so alter its character as to make it in substance a new petition That would exactly be the effect of the amendment sought by the petitioner It will be seen therefore that the Tribunal has put before itself the correct principles governing its powers of amendment and found on a construction of the allegations in the petition that by the proposed amendment the respondent was seeking to introduce a new ground after the period of limitation This order was made by the Tribunal in the exercise of its discretion in strict conformity with the principles laid down by this Court The next question is whether the High Court was justified in setting aside that order It was argued before the High Court that the amendment application was wrongly refused and that even as the election petition stood without the amendment it contained sufficient averment of facts to make out a ground under section 1001di of the Act and in the alternative that it made out a ground under section 1001div of the 1 1957 SCR370 309 Act Before the High Court the learned Counsel for the respondent withdrew his prayer for the amendment of sub para1 of para 5 of the election petition with the result the only paragraph on which reliance was placed by the respondent was sub para d of para 5 The High Court also noticed the judgment of this Court in Harish Chandra Bajpai s Case 1 and posed the following question for its decision The important thing is whether in substance the petition contains the particular ground of attack or not It proceeded to consider whether the original subpara d of para 5 contained any ground and if so what and whether a new ground was sought to be raised in the garb of an amendment After reading the said sub para it expressed the view that the ground in its opinion would fall under section 1001di of the Act and that conclusion was based on the allegations in the said sub para that there was an improper acceptance of the nomination and that the appellant had not obtained the necessary certificate from the Election Commission It has stated that in the circumstances of the case the respondent meant to state that as the certificate had not been obtained it could not have accompanied the nomination paper The learned Judges of the High Court concluded their discussion thus We also think that the Tribunal should have permitted the amendment because the ground of attack had been clearly made out and the only mistake committed by the appellant was not to put it in proper words In short the view of the High Court was that sub para d contained the ground under section 1001di of the Act and what was asked for by way of amendment was only a clarification of that ground The High Court in our view has missed the real point raised before it We have already pointed out that in view of the judgment of this Court in Durga Shankar Mehta s Case 2there was no improper 1 2 1955 1 SCR 267 40 310 acceptance of the nomination paper by the Returning Officer for the nomination paper ex facie did not disclose any defect or disqualification The petition for amendment asked for inserting a statement in sub para d of para 5 under the ground of improper acceptance of the nomination paper viz that the prescribed certificate did not accompany the nomination paper of the candidate and that at the appellate stage the other proposed amendment based upon section 333 of the Act was given up The result was that no relief for raising the ground under section 1001div had survived and that the ground under section 1001di was not open to the respondent In the circumstances the amendment would be foreign to the scope of the enquiry under the ground governed by section 1001 di of the Act That apart could it be said that the High Court was justified in the circumstances of this case to interfere with the discretion of the Tribunal An appellate Court has no doubt an unquestioned right to review or modify the order made by a subordinate Court but it is undesirable to do so when the subordinate Court made an order in the exercise of its discretion without exceeding the limits of its power unless it acted perversely or unless the view taken by it is clearly wrong In this case the Election Tribunal neither exceeded its powers nor acted perversely and indeed its order advanced the cause of justice in that it helped to maintain the election of a candidate who was duly qualified and who secured a large majority of votes over all the rival candidates We have carefully considered the reasons set out in the judgment of the High Court in support of its decision that the amendment should have been allowed by the Tribunal and in our opinion the said reasons are unsatisfactory and on some points farfetched In the circumstances we do not see any justification after the entire petition was disposed of for the High Court to interfere with the said discretion We therefore set aside the order of the High Court It is represented to us by the learned counsel for the appellant that in the High Court the only 311 point argued was that the amendment should have been allowed and no other point was pressed The learned counsel for the respondent does not accept this position In the circumstances we have no other option but to remand the case to the High Court for disposal in accordance with law The respondent will pay the costs to the appellant Appeal allowed

A company dismissed from its service four of the appellants for taking part and instigating others to join in an illegal slowdown strike in the Hot Mill Section of its works which were a public utility service On such dismissal the slow down strike however gained strength The company thereupon issued a notice dated April 8 1953 to the workers of the Hot Mill that unless they voluntarily recorded their willingness to operate the plant to its normal capacity before 2 pm of April 10 they would be considered to be no longer employed by the company As a result forty workers recorded their willingness but the rest did not make any response at all The company then issued a second notice dated April 25 stating inter alia that the Workers who did not record their willingness to work the plant to its normal capacity in terms of the previous notice dated April 8 had been considered to be no longer in service and their formal discharge 320 from the company s service had been kept pending in order to assure to the fullest that no one who wanted to work normally was being discharged on circumstantial assumptions and calling upon the workers to record their willingness by April 28 1953 to operate the plant to its normal capacity and further intimating that failing this their names would be removed from the company s rolls and their discharge would become fully effective with all the implications of a discharge After this notice the entire body of workers of the works except those engaged in the essential services went on strike Thereafter the company with the sanction of the Government filed a complaint under section 27 of the Industrial Disputes Act against the appellants for having instigated and incited others to take part in an illegal strike The appellants were convicted The appellants challenged the said conviction under section 27 of the Act contending that the strike was not illegal as the strike had been in consequence of an illegal lock out declared by the company by the said notices dated April 8 and April 25 The appellants further contended that the notices did not effect a discharge but declared a lock out and that even if the notices did effect a discharge then also there was a lock out for a discharge is equally a lock out Finally the appellants challenged the propriety of the sanction under section 341 of the Act to make the complaint as the sanction did not on the face of it refer to the facts constituting the offence Held that on a construction of the notices they bad the effect of discharging the workmen and did not amount to a declaration The removal of the name of a worker from the Roll of the company was a formality which the notices said had been kept pending and this did not prevent the discharge having taken effect The words refusal by an employer to continue to employ any number of persons employed by him in section 21 do not include the discharge of an employee Held further that sanction under s 341 of the Act would be good if it was proved by evidence that it had been granted after all the necessary facts had been placed before the sanctioning authority though the facts were not stated on the face of the sanction itself Presidency Jute Mills Co Ltd vs Presidency Jute Mills Co Employees Union 1952 IAC 62 approved Gokalchand Dwarkadas Morarka vs The King 1948 LR 75 IA 30 discussed

minal Appeals Nos 25 to 27 of 1958 356 Appeals from the judgment and order dated June 25 1957 of the Punjab High Court in Criminal Revisions Nos 184 D 185 D and 186 D of 1956 arising out of the judgment and order dated October 23 1956 of the Sessions Judge Delhi in Criminal Revision Applications Nos 249 250 and 251 of 1956 Bipin Behari Lal and R H Dhebar for the appellant G C Mathur and I N Shroff for the respondent in Cr A No25 of 1958 A G Ratnaparkhi for the respondent in Cr A No 26 of 1958 Respondent in Cr A No 27 of 1959 did not appear November 30 The Judgment of the Court was delivered by WANCHOO J These three appeals arise out of three certificates granted by the Punjab High Court in a criminal matter They will be dealt with together as the point raised in them is common The brief facts necessary for the purpose are these There is a Government Printing Press at Rashtrapati Bhavan known as Rashtrapati Bhavan Printing Press which is located in the President s estate in New Delhi Jacobs was the General Foreman of this Press Every year the budget proposals are printed at this Press under the supervision of Jacobs As usual Jacobs supervised the printing of budget proposals in his official capacity in February 1955 also It appears that Jacobs entered into a conspiracy to divulge the budget proposals on receiving valuable consideration for the same Consequently the proposals were divulged to D P Chadda and were passed on to certain businessmen of Bombay including Nandlal More and Hiralal G Kothari through one A L Mehra All this was done against the provisions of the Official Secrets Act No XIX of 1923 Further an offence was committed under the Prevention of Corruption Act No 11 of 1947 also inasmuch as money was paid to Jacobs for divulging the budget proposals The same thing happened in February 1956 with respect to the 357 budget proposals for 1956 57 This was discovered on March 9 1956 and a case was registered under section 165 A of the Indian Penal Code section 52 of the Prevention of Corruption Act section 5 of the Official Secrets Act and section 120 B of the Indian Penal Code and investigation started on March 10 1956 Thereafter pardon was tendered to AL Mehra by the Additional District Magistrate on March 23 1956 under section 337 of the Code of Criminal Procedure The four offences mentioned above were specified in the order of the Additional District Magistrate tendering pardon to Mehra Thereafter owing to technical legal difficulties a complaint under section 5 of the Official Secrets Act read with section 120 B of the Indian Penal Code was filed against the persons involved and it was stated in that complaint that proceedings with the respect to the charge under section 52 of the Prevention of Corruption Act would be taken separately Proceedings then began before a magistrate on this complaint It may be mentioned that no proceedings have yet started insofar as the offences under section 52 of the Prevention of Corruption Act and section 165 A of the Indian Penal Code are concerned In the course of these proceedings before the magistrate the prosecution wanted to examine Mehra as an approver Thereupon the accused persons objected that as the proceedings before the magistrate were only under section 5 of the Official Secrets Act and section 120 B of the Indian Penal Code Mehra could not be examined as an approver and in consequence the case could not be committed to the Court of Session but should be disposed of by the magistrate himself The magistrate held that Mehra could be treated as an approver and proceedings before him were therefore in the nature of commitment proceedings Thereupon there was a revision to the Sessions Judge who took the view that as the proceedings before the magistrate were under section 5 of the Official Secrets Act read with section 120 B of the Indian Penal Code and as no pardon could be tendered under section 337 of the Code of Criminal Procedure for these offences Mehra could not be treated as an approver and had to be examined as an 46 358 ordinary witness and the proceedings must be held to be trial proceedings before the magistrate and not commitment proceedings He therefore recommended to the High Court that the order of the magistrate be set aside The High court upheld the view of the Sessions Judge and ordered accordingly It granted certificates under article 1341c of the Constitution and that is how these three appeals have been filed by the State before us The only question that has been urged before us is that the view of the magistrate is correct and Mehra could be treated as an approver and examined as such for the purposes of the proceedings before him The question whether the case should be committed to the Court of Session does not survive now as we are told that one of the accused has asked for trial by the Court of Session as provided under section 132 of the Official Secrets Act The High Court examined section 337 of the Code of Criminal Procedure and came to the conclusion that a pardon under that section could only be tendered with respect to certain offences mentioned therein It was further of the view that as section 5 of the Official Secrets Act read with section 120 B of the Indian Penal Code was not covered by the words of section 3371 and as the proceedings before the magistrate were only with respect to these offences Mehra could not be treated as an approver to whom pardon had been tendered for the purpose of these proceedings A mere perusal of section 337 of the Code of Criminal Procedure shows that the view of the High Court is correct Section 3371 provides for tender of a pardon in respect of the following offences namely i Any offence triable exclusively by the High Court or Court of Session ii Any offence punishable with imprisonment which may extend to seven years iii Any offence under any of the following sections of the Indian Penal Code 161 165 165 A 216 A 369 401 435 and 477 A 359 Thus pardon can only be tendered with respect to an offence which falls in one of these categories It is not disputed that an offence under section 5 of the Official Secrets Act read with section 120 B of the Indian Penal Code does not fall within any of these categories So if the proceedings were with respect only to an offence under section 5 of the Official Secrets Act read with section 120 B of the Indian Penal Code section 337 of the Code of Criminal Procedure would not apply and no pardon could be tendered to any person It is urged however that section 3371 contemplates tender of a pardon on condition of the person pardoned making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned whether as principal or abettor in the commission thereof and this means that the person to whom pardon is tendered is expected to tell the whole truth including details of any other subsidiary offence which might have been committed in the course of the commission of the offence for which pardon is tendered and therefore the pardon so tendered must be held to include the subsidiary offence even though if the subsidiary offence alone were committed and were not of the nature mentioned in section 337i no pardon could have been tendered for the same Reliance in this connection is placed also on section 339 of the Code of Criminal Procedure which provides that where any person who has accepted pardon either by wilfully concealing anything essential or by giving false evidence does not comply with the Condition on which the tender was made he may be tried for the offence in respect of which the pardon was tendered or for any other offence of which he appears to have been guilty in connection with the same matter It is said that the specific provision for trial for any other offence which might have been committed in connection with the same matter in section 339 shows that the pardon would cover the other offence also even though it may not be an offence for which the pardon was and could be tendered We are of opinion that no such inference could be drawn from the use of these words in section 339 for that 360 section deals with a different contingency altogether namely whether the conditions of the pardon had been complied with It is to be remembered that a pardon tendered under section 337 is a protection from prosecution Failure to comply with the conditions on which the pardon is tendered removes that protection All that section 339 says provided the requisite certificate under that section is given by the Public Prosecutor is that the person to whom the pardon is tendered can be prosecuted for the offence for which the pardon was tendered as also any other offence of which he appears to be guilty in connection with the same matter This would be just the same as if section 339 merely stated that on failure to comply with the conditions of the pardon such pardon would be for feited The words of section 339 therefore are of no help in construing section 337 and we must look to the words of 337 in deciding whether a pardon could be tendered for an offence under section 5 of the Official Secrets Act read with section 120 B of the Indian Penal Code The fact that in the application in which the police requested the Additional District Magistrate for tender of pardon or in the order of the Additional District Magistrate tendering pardon section 5 of the Official Secrets Act was mentioned along with other offences for which pardon could be tendered would not mean that a pardon could be tendered for an offence under that Act if under the law as provided in section 3371 no pardon could be tendered for an offence under section 5 of the Official Secrets Act As we read section 3371 it is to our mind perfectly clear that pardon can only be tendered under that provision with respect to the three categories of offences mentioned therein and already indicated above and none other As section 5 of the Official Secrets Act read with section 120 B of the Indian Penal Code does not fall within any of these categories no pardon can be tendered with respect to that offence Therefore Mehra to whom pardon has been tendered could not be examined as an approver in the proceedings which are concerned only with an offence under section 5 of the Official Secrets Act read with section 120 B of the Indian Penal Code 361 Learned counsel for the appellant drew our attention to three cases in support of the view that a pardon under section 3371 could be tendered not only for the offences of the kind enumerated therein but also other offences which might be committed in the course of the commission of the offences enumerated therein but which might not be within the terms of section 3371 These cases are Queen Empress vs Ganga Charan 1 Harumal Parmanand vs Emperor 2 and Shiam Sunder vs Emperor 3 These cases however refer to different circumstances altogether and were not concerned with the interpretation of section 3371 of the Code of Criminal Procedure In all these cases the question that arose before the courts was whether an approver who was prosecuted under section 339 for certain offences could be or should be so prosecuted They also turned on the terms of the pardon granted in those particular cases It was there held that where a question arose how far a pardon would protect an approver it should not be treated in a narrow spirit bearinG in mind that in countenaiicing tender of pardons to accomplices the law does not invite a cramped and constrained statement by the approver but requires a thorough and complete disclosure of all the facts within his knowledge bearing upon the offence or offences as to which he gave evidence The considerations which apply when a trial is taking place tinder section 339 of the Code of Criminal Procedure are entirely different The proviso to section 339 shows that at his trial an approver is entitled to plead that he has complied with the condition upon which tender of pardon was made and if he succeeds in proving that he has complied with the conditions upon which the tender was made he is protected from prosecution with respect to all offences which appear to have been committed in connection with the matter giving rise to the offence for which pardon was tendered These three cases really turn on the question whether the accused had complied with the conditions upon which the pardon was tendered to him and it was held that be had so complied 1 ILR 11 All 2 AIR 1915 Sind 43 3 AIR 1921 All 234 362 In those circumstances the trial under section 339 was held to be bad We are not concerned in the present case with section 339 What we have to decide is whether a pardon under section 3371 of the Code of Criminal Procedure can be granted in the case of an offence under section 5 of the Official Secrets Act read with section 120 B of the Indian Penal Code To that there can be only one answer on the terms of section 3371 namely that no pardon can be granted for an offence of this nature Therefore as the present proceedings before the magistrate are only for an offence under section 5 of the Official Secrets Act read with section 120 B of the Indian Penal Code Mehra cannot be examined as an approver in that court There is no force in these appeals and they are hereby dismissed Appeals dismissed

The respondents filed a petition in the High Court of Jammu Kashmir Motor Vehicles Rules The High Court held that the said rule was ultra vires as offending article 14 of the Constitution The appellants filed an application in the High Court for a certificate under article 1321 of the Constitution which was rejected on the ground that no substantial question of law as to the interpretation of the Constitution was involved in the case Thereafter the appellant applied to this Court for special leave under article 1322 of the Constitution which was granted with liberty to the respondents to raise the question of maintainability of the appeal There was no controversy between the parties in regard to the interpretation of article 14 of the Constitution and the dispute centered round the question whether the impugned rule stood the test of reasonable classification The respondents raised a preliminary objection that special leave under article 1322 of the Constitution could be granted by this court only if it was satisfied that the case involved a substantial question of law as to the interpretation of the Constitution and that since in the present case the interpretation of article 14 of the Constitution was not in dispute by reason of a series of decisions of this Court and no question of law much less a substantial question of law could arise for consideration no special leave could be granted under the said Article It was contended on behalf of the appellants that whenever a question of classification was raised that by itself involved the interpretation of article 14 of the Constitution so far as the impugned classification was concerned Held that the principle underlying article 1322 of the Constitution is that the final authority of interpreting the Constitution must rest with the Supreme Court With that object that Article is freed from other limitations imposed under articles 133 and 134 and the right of appeal of the widest amplitude is allowed irrespective of the nature of the proceedings in a case involving only a substantial question of law as to the interpretation of the Constitution The interpretation of a provision means the method by which the true sense or the meaning of the word is understood Where 347 the parties agree as to the true interpretation of a provision or do not raise any question in respect thereof the case does not involve any question of law as to the interpretation of the Constitution A substantial question of law cannot arise where that law has been finally and authoritatively decided by this Court In the instant case the question raised does not involve any question of law as to the interpretation of the Constitution TM Krishnaswami Pillai vs Governor General in Council 1947 52 CWN FR 1 Bhudan Choudury vs The State of Bihar Chiranjit Lal Chowdhuri vs Union of India Ram Krishna Dalmia vs justice Tendolkar and Mohammad Haneef Quayeshi vs State of Bihar 1959 SCR629 relied on

Civil Appeal No16 of 1955 Appeal from the judgment and decree dated February 14 1952 of the former Nagpur High Court in First Appeal No 10 of 1945 arising out of the judgment and decree dated September 25 1944 of the Second Additional District Judge Amraoti in Civil Suit No 11 A of 1943 Tr Civil Suit No5A of 1944 119 C B Agarwal and A G Ratnaparkhi for the appellants W section Barlingay section N Andley and Rameshwar Nath for respondents Nos 2 7 1959 November 3 The Judgment of the Court was delivered by SHAH J This is an appeal against the decree of the High Court of Judicature at Nagpur in Civil Appeal No 10 of 1945 reversing the decree passed by the Second Additional District Judge Amraoti in Civil Suit No 5 A of 1944 The High Court has by its decree directed the court of first instance to pass a decree for redemption The appeal raises a question as to the true effect of a deed dated September 10 1931 executed by Shri Narayan Rambilas Aggarwal and his two sons Sadan Gopal and Murli Dhar in favour of two brothers Bhaskar Waman Joshi and Trimbak Waman Joshi The deed ostensibly conveys an absolute title to certain properties described therein The transferors under the deed contend that the property transferred by the deed was intended to be mortgaged under a deed of conditional sale The transferees contend that by the deed an absolute conveyance of the property thereby conveyed was intended and that the conveyance was subject to a condition of repurchase to be exercised within a period of five years from the date of the deed The court of first instance dismissed the suit holding that the transaction in the deed dated September 10 1931 was of the nature of an absolute conveyance with a condition of repurchase and the period limited by the deed for reconveyance had expired long before the date of the suit The High Court held that the transaction was a mortgage by conditional sale and on that view reversed the decree and directed that a redemption decree be passed The properties in dispute are three in number 1 a house in Amravati outside the Amba Gate bearing Municipal No 598 2 A Chawl in Amravati bearing old Municipal Nos 6857 6858 and 6859 and 3 a house situated in Dhanraj Lane Amravati bearing old 120 Municipal No 3459 By the deed the properties were separately valued The house at Amba Gate was valued at Rs 11500 the Chawl was valued at Rs 26000 and the house at Dhanraj Lane was valued at Rs 2000 At the date of this transaction the transferors were indebted to the Imperial Bank of India in the sum of Rs 30000 and Rs 9500 were due to the transferees and their relations and friends and to satisfy this liability of Rs 39500 the deed was executed Possession of the property transferred was delivered by calling upon the tenants in occupation to attorney to the transferees The transferees constructed eight shops in the compound of the Amba Gate house in the year 1940 1941 and made certain other constructions in the compound of the Chawl and they sold the Dhanraj Lane house to one Suraj Mal Salig Ram On the August 26 1943 the transferors served a notice upon Bhaskar Waman Joshi and the representatives in interest of Trimbak Waman Joshi stating that they were willing to redeem the mortgage created by the deed dated September 10 1931 and called upon the transferees to render full true and proper account of the amount claimable under the deed By their reply Bhaskar Waman Joshi and the representatives of Trimbak Waman Joshi denied that the transferors had any right to redeem the property conveyed by the deed and asserted that the claim to treat the sale as a mortgage was an afterthought in view of the abnormal rise in prices which had lately taken place On September 9 1943 the three transferors and other members of their joint Hindu family filed suit No 5 A of 1943 in the court of the Additional District Judge Amravati against Bhaskar Waman Joshi and the representatives in interest of Trimbak Waman Joshi and Suraj Mal Salig Ram for a decree for redemption alleging that the transfer incorporated in the deed dated September 10 1931 was in the nature of a mortgage by conditional sale exhibit D 1 which is the deed in question recites that the transferors were indebted that they needed Rs 39500 to discharge their liability that Rs 2320 were due to the transferees and that amount was set 121 off and the balance of Rs 37180 was paid by eight cheques drawn on the Imperial Bank of India It was then recited that the immovable properties described in the deed were conveyed in full ownership and that possession was delivered to the transferees The deed then proceeded to recite the conditions in respect of this sale If our heirs or ourselves demand reconveyance of one two or all the three houses of the above estate at any time within 5 five years of this date this time limit shall be followed very strictly it has been finally settled that we will lose this right if one more day expires you or your heirs shall reconvey to us at our expenses the respective houses for their respective prices mentioned in this deed of sale With a view that both sides should have equal rights in respect of this condition it has been agreed between us that if our heirs or ourselves do not exercise this right of reconveyance in respect of all the three houses or any one of them within four and a half years of this day and if for any reasons you or your heirs do not deem it proper to retain anyone or all these houses hereafter you and your heirs have a right to take back from us or our heirs the amount of consideration of this deed of sale and to return all the three houses or any of them in the condition in which the same may be at that time and if you or your heirs express such a desire and if we or our heirs fail to comply with it shall be tantamount to our breaking the agreement of reconveyance and we and our heirs will be liable to pay damages It has been further agreed between us that in the event of such a reconveyance our heirs and ourselves will pay full prices as mentioned in this deed of sale of the estate in the condition in which it may be at that time that is in the condition in which it may be on account of heavenly mishap or Government action on account of any reason whatsoever or on account of fall in prices The courts below differed in their interpretation of the true effect of these conditions In the view of the learned Trial Judge the intention of the parties was to effect an absolute sale and not a mortgage The High Court did not agree with that view 16 122 By cl c of section 58 of the Transfer of Property Actmortgage by conditional sale is defined as follows Where the mortgagor ostensibly sells the mortgaged property on condition that on default of payment of the mortgage money on a certain date the sale shall become absolute or on condition that on such payment being made the sale shall become void or on condition that on such payment being made the buyer shall transfer the property to the seller the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale provided that no such transaction shall be deemed to be a mortgage unless the condition is embodied in the document which effects or purports to effect the safe The proviso to this clause was added by Act XX of 1929 Prior to the amendment there was a conflict of decisions on the question whether the condition contained in a separate deed could be taken into account in ascertaining whether a mortgage was intended by the principal deed The Legislature resolved this conflict by enacting that a transaction shall not be deemed to be a mortgage unless the condition referred to in the clause is embodied in the document which effects or purports to effect the sale But it does not follow that if the condition is incorporated in the deed effecting or purporting to effect a sale a mortgage transaction must of necessity have been intended The question whether by the incorporation of such a condition a transaction ostensibly of sale may be regarded as a mortgage is one of intention of the parties to be gathered from the language of the deed interpreted in the light of the surrounding circumstances The circumstance that the condition is incorporated in the sale deed must undoubtedly be taken into account but the value to be attached thereto must vary with the degree of formality attending upon the transaction The definition of a mortgage by conditional sale 123 postulates the creation by the transfer of a relation of mortgagor and mortgagee the price being charged on the property conveyed In a sale coupled with an agreement to reconvey there is no relation of debtor and creditor nor is the price charged upon the property conveyed but the sale is subject to an obligation to retransfer the property within the period specified What distinguishes the two transactions is the relationship of debtor and creditor and the transfer being a security for the debt The form in which the deed is clothed is not decisive The definition of a mortgage by conditional sale itself contemplates an ostensible sale of the property As pointed out by the Judicial Committee of the Privy Council in Narasingerji Gyanagerji vs Panuganti Parthasarathi and Others 1 the circumstance that the transaction as phrased in the document is ostensibly a sale with a right of repurchase in the vendor the appearance being laboriously maintained by the words of conveyance needlessly reiterating the description of an absolute interest or the right of repurchase bearing the appearance of a right in relation to the exercise of which time was of the essence is not decisive The question in each case is one of determination of the real character of the transaction to be ascertained from the provisions of the deed viewed in the light of surrounding circumstances If the words are plain and unambiguous they must in the light of the evidence of surrounding circumstances be given their true legal effect It there is ambiguity in the language employed the intention may be ascertained from the contents of the deed with such extrinsic evidence as may by law be permitted to be adduced to show in what manner the language of the deed was related to existing facts Oral evidence of intention is not admissible in interpreting the covenants of the deed but evidence to explain or even to contradict the recitals as distinguished from the terms of the documents may of course be given Evidence of contem poraneous conduct is always admissible as a surrounding circumstance but evidence as to subsequent conduct of the parties is inadmissible 1 1924 LR 51 IA 305 124 In the light of these principles the real character of the document exhibit D 1 may be ascertained The conditions of reconveyance may be analysed 1 that the transferees shall reconvey the proper within five years from the date of the conveyance to the transferor at the expense of the transferors for the price mentioned in the deed 2 that if within four years and six months from the date of the conveyance the right of reconveyance in respect of the three houses or any of them is not exercised by the transferors and if the transferees do not desire to retain all or any of the houses they have the right to recall from the transferors the amount of the consideration and to return all or any of the three houses in the condition in which they may be 3 that in the event of failure on the part of the transferors to comply with the request to take back the houses a breach of agreement of reconveyance rendering the transferors liable to pay damages shall be committed 4 that in the event of reconveyance the transferors shall pay the full price set out in the sale deed and take back the houses in the condition in which by vis major Government action or any reason whatsoever they may be Evidently the transferors bave under the deed a right to call upon the transferees to reconvey the properties within five years from the date of the conveyance but after the expiry of four years and six months the transferees are given the option to call upon the transferors to take back all or any of the properties for the prices mentioned in the deed and if such right was exercised the transferors were bound to take back the properties and return the price even if on account of vis major or action of the public authorities the property was prejudicially affected The deed does not set out the period within which this right is to be exercised by the transferees Granting that the option of reconveying the properties against the price mentioned in the deed was to be exercised by the transferors before the expiry of five years from the date of the deed the covenant that damage to property even on account of circumstances over which the transferees had no control was in the 125 event of reconveyance to be borne by the transferors is strongly indicative of a mortgage By this covenant the transferees were invested with the right to call upon the transferors to take back all or any of the houses and to return the price therefor indicating thereby that the price paid is in truth charged upon the property By calling upon the tenants to attorn to the transferees possession of the property transferred was delivered and pursuant to the transfer it was mutated in the names of the transferees By an express covenant the period of five years was also made of the essence of the contract but as observed in Narasingerjis case 1 the description of the document as one of an absolute sale and the right of repurchase bearing the appearance of a right in relation to the exercise of which time is of the essence are not decisive of the true nature of the transaction The circumstances surrounding the deed at the date of the execution of the deed also support the view that the transaction incorporated in exhibit D 1 was intended to be a mortgage Before the execution of the deed exhibit D 1 a draft sale deed was prepared By the draft sale deed exhibit P 13 only two properties the Amba Gate house valued at Rs 10000 and the Chawl valued at Rs 25000 were to be conveyed By the final sale deed the Dhanraj Lane house was also agreed to be conveyed and that house was valued at Rs 3500 The transferors were evidently in straitened circumstances and immediately needed Rs 30000 to discharge their liability to the Imperial Bank and the liability to the transferees and their relations and friends amounted to Rs 9500 It is for this amount of Rs 39500 that the properties were conveyed On the date on which the deed was executed also an agreement exhibit D 3 was executed by the three transferors That agreement recited that the sale deed was to be executed for past debts and for paying off the debts cheques were taken from the transferees and the transferees were put in possession of the houses sold A request was then made that the transferees should not get the deed registered for two months or at least for eight to fifteen days because the transferees had 1 126 to make arrangements for payments to the creditors and in the event of the deed being registered other creditors may make demands for their dues It was then stated you want that you should get an income of nine per cent per annum from these houses till reconveyance but it is evident that after meeting repairing or insurance charges thereof there will not remain so much profit in balance Therefore we have already agreed before that the agreement of reconveys mentioned in the deed of sale shall be brought into effect only when ourselves or our heirs pay to you all the expenses incurred by you as found due according to your account books and complete your nine per cent This agreement and the sale deed were executed on the same day Evidently by this agreement the transferors undertook to pay the difference between the net rent to be recovered and interest at the rate of nine per cent on the price till the date of reconveyance and that the right of reconveyance was to be enforceable only when the difference between the interest at nine per cent on the price and the rent recovered less repairs insurance charges according to the books of account of the transferees was paid Prima facie this is a personal covenant whereby the transferors agreed to pay interest at the rate of nine per cent on the price paid till the date of reconveyance This agreement strongly indicates that the parties regarded the arrangement incorporated in the deed dated September 10 1931 as a mortgage The contention raised by the transferees that by this covenant they were to erect additional structures at their own expense upon the land and collect rent which may be equivalent to interest at the rate of nine per cent on the price paid and the amounts spent by them is on the language used in the deed unwarranted There is in the deed no reference to any additional amount to be spent by the transferees for erecting buildings upon the land conveyed and the books of the transferees are referred to in the agreement only to make the accounts maintained by them binding upon the transferors Counsel for the transferees urged that this agreement not being registered was inadmissible 127 in evidence Ex facie the document does not purport to create declare limit or extinguish any right title or interest in immovable property it incorporates a mere personal covenant and it is difficult to appreciate the plea that the document wholly inadmissible for want of registration This agreement indisputably contains a condition relating to reconveyance incorporated in a registered instrument and may not be admissible in the absence of registration as evidencing any alteration of the terms of reconveyance But this agreement in so far as it evidences a personal covenant to pay interest at the rate specified is admissible It is a somewhat singular circumstance that before the High Court when counsel for the contending parties were were invited by the court to argue whether the document was by law required to be registered counsel urged that the document was admissible in evidence without registration and insisted upon arguing the case on that footing The question whether the price paid was adequate may also be adverted to The court of first instance held that the consideration for the properties was not inadequate but in the view of the High Court the consideration was wholly inadequate Counsel for the transferees contended that the monthly rent received from the tenants occupying the properties was Rs 270 and deducting therefrom Rs 48 for municipal taxes and an amount equal to rent for two months as properly chargeable for repairs insurance and collection charges there remained only a balance of Rs 186 per month available to the transferees and capitalizing the net rent at 6 the value of the property conveyed could not exceed Rs 30000 and even capitalising the net rent at 5 counsel contended that the value of the property may be approximately equal to the consideration paid There is however no clear evidence as to what municipal taxes were payable in respect of the houses and whether the taxes were payable by the tenants or by the landlord Dr Trimbak Joshi one of the transferees in his evidence in Suit No 112 of 1932 deposed that the tax came to Rs 48 on the date of purchase but he did not state that this amount was 128 payable monthly There is again evidence of witness Balkrishna examined by the transferees that the water tax was paid by the tenants In their written statement the transferees had set out a statement of income and expenditure for the years 1931 40 and in that statement for the year 1933 the expenses debited against income were Rs 426 11 0 for 1934 Rs 346 15 6 and for 1935 Rs 542 2 6 for 1936 Rs 1666 7 0 for 1937 Rs 1160 1 3 for 1938 Rs 529 2 3 for 1939 Rs 570 11 3 and for 1940 Rs 46 2 0 If Rs 48 were payable as municipal tax every month the liability on account of taxes alone far exceeded the expenses debited against the rent received This statement of account abundantly shows that the municipal taxes were borne by the tenants and not by the landlords The High Court in para 34 of its judgment proceeded to estimate the rental of the properties at Rs 245 per month and capitalised the same at 5 The High Court is not shown to be in error in accepting the net monthly rental at Rs 245 per month The area of the land of the Amba Gate house is 9037 square feet the area of the land at Chawl is 23805 square feet and the area of land of Dhanraj Lane house is 817 square feet There is no clear evidence on the record about the precise area of the lands covered by the structures but it is conceded that the structures stood on an area less than one half of the total area of the land From the evidence especially of the valuation reports it appears that of the Amba Gate house 5800 square feet of land were open and of the Chawl 12000 square feet of land were open Valuation of building land with structures by capitalising the rental may yield a reliable basis for ascertaining the value of the land together with the structures only if the land is developed to its full capacity by erection of structures If the land is not fully developed by raising structures valuation of houses together with lands by capitalising the rent received may not furnish reliable data for assessing the market value By aggregating the value of the land and the value of the structure separately estimated a scientifically 129 accurate value of the land with the structure may not be obtained But where the land is relatively valuable and the structures are old and comparatively of small value this method may afford a rough basis in the absence of other reliable data for ascertaining the value of the land and the structure D 52 and D 53 are the reports prepared by a valuer of the market value of the Chawl and the Amba Gate house According to the report exhibit D 52 the value of the superstructure of the Chawl was Rs 31708 Out of this amount the valuer sought to deduct 20 as per Superintending Engineer s letter dated the 21st August 1931 On what basis that deduction has been made has not been explained He again proceeded to deduct 20 as depreciation on the cost of the building and estimated at Rs 20293 the value of the superstructure It is evident that a deliberate attempt was made by the valuer to depreci ate the value of the super structure by making at least one deduction of 20 for which there is no warrant Even assuming that this valuation of Rs 20293 is accurate the value of the Chawl together with the land considerably exceeds Rs 26000 The valuer has valued the site at 4 as per square foot but no reliable evidence has been led to support that estimate Similarly for the Amba Gate house the valuer estimated the value at Rs 18556 for the super structure and he deducted 20 with effect from the 22nd August 1931 according to the Superintending Engineer s letter dated the 21st August 1931 and 25 as depreciation charges on building and arrived at the figure of Rs 11134 and added thereto the value of the land at the rate of 4 as per square foot The evidence on the record does not warrant the assumption that the land was worth only annas four per square foot As pointed out by the High Court in view of the sale deeds Exs P 9 and P 21 the price of the land fluctuated between Rs 1 and Rs 2 4 as per square foot Even if the lower of the two rates be adopted the value of the Chawl at the Amba Gate house will considerably exceed the price embodied in the sale deed 17 130 The house in Dhanraj Lane was valued in the draft sale deed at Rs 3500 and in the sale deed at Rs 2000 No explanation has been given for this disparity between the prices mentioned in the draft and the deed and there is substance in the contention strongly pressed by counsel for the transferors that the value of Rs 2000 for a house with a ground floor and two stories is artificial The evidence discloses that the house was let out on a monthly rent of Rs 20 and capitalising that rent at 5 on the assumption that by the construction the land was fully developed the price thereof was more than double the price set out in the deed It is clear that this house was included in the deed to make up the total value of Rs 39500 the amount required by the transferors to tide over their immediate difficulties Counsel for the transferees sought to rely upon the evidence of subsequent conduct of the transferors as indicative of the character of the transaction as a sale but as already observed that evidence is inadmissible In our view the High Court was right in holding that the real transaction incorporated in exhibit D 1 was a mortgage and not a sale The appeal therefore fails and is dismissed with costs Appeal dismissed

The appellant held an office under the Government and was dismissed from service on January 24 1956 for a reason other than corruption or disloyalty to the State He filed his nomination paper for election to Parliament which did not disclose any disqualifications No objection was taken to the nomination and it was accepted without making any enquiry After the poll the appellant was declared duly elected The respondent filed an election petition challenging the election of the appellant on the ground inter alia that the nomination of the appellant had been improperly accepted as he was dismissed from Government service and he had failed to obtain a certificate from the Election Commission that he had not been dismissed for corruption or disloyalty to the State After limitation for filing the petition had expired the respondent applied to the Election Tribunal for amendment of the petition seeking to add to this ground the statement that the nomination paper was not accompanied by the prescribed certificate The Tribunal disallowed the amendment on the ground that the amendment sought to introduce a 290 new ground after the period of limitation and then dismissed the election petition holding that the appellant was qualified to stand for the election and his nomination was not improperly accepted On appeal the High Court held that the amendment should have been allowed as it merely asked for a clarification and not the introduction of a new ground and consequently it set aside tile order of the Tribunal and directed a retrial of the issue involving The appellant obtained special leave and appealed Held that the amendment could not be allowed as it sought to introduce a new ground in the petition after the period of limitation The ground taken in the petition was that there was an improper acceptance of the nomination covered by section 1001d1 of the Representation of the People Act 1951 But there was no improper acceptance of the nomination for the nomination paper ex facie did not disclose any defect or disqualification There being no subsisting prayer seeking to raise the ground under section 1001div for non compliance with the Provisions of section 333 of the Act the amendment was foreign to the scope of the enquiry under the ground covered by section 1001d1 Durga Shankar Mehta vs Thakur Raghuraj Singh 1955 1 SCR 267 and Harish Chandra Bajpai vs Triloki Singh followed Veluswami vs Raja Nainay referred to There was no jurisdiction in the High Court to interfere with the discretion of the Election Tribunal refusing to allow the amendment after the entire petition had been disposed of It is undesirable for an appellate Court to interfere with the order of a subordinate Tribunal made in the exercise of its discretion without exceeding the limits of its powers unless it has acted perversely or has taken a view which is clearly wrong

ivil Appeal No678 of 1957 Appeal from the judgment and order dated August 1 1956 of the Patna High Court in Misc Judicial Case No 188 of 1955 WITH Civil Appeals Nos 546 of 1958 and 115 of 1959 333 Appeals from the judgment and order dated March 8 1957 of the Patna High Court in Misc Judicial Cases Nos 116 and 215 of 1956 Lal Narayan Sinha and section P Varma for the appellant C K Daphtary Solicitor General of India and R C Prasad for respondent No 1 in C A No 678 of 57 B C Ghose and P K Chatterjee for the intervener H N Sanyal Additional Solicitor General of India and C P Lal for respondent No 1 in CA No 546 of 58 H N Sanyal Additional Solicitor General of India and P K Chatterjee for respondent No 1 in CA No 115 of 1959 November 26 The Judgment of the Court was delivered by GAJENDRAGADKAR J This is a group of three appeals which have been filed in this Court by the State of Bihar hereinafter called the appellant against three separate registered dealers with a certificate issued by the Patna High Court Under article 1321 of of the Constitution that they involve a substantial question of law as to the interpretation of article 201 of the Constitution The facts in each one of the three appeals are similar though not exactly the same but they raise a common question of law under the proviso to section 14A of the Bihar Sales Tax Act 1947 Act XIX of 1947 hereinafter called the Act Orders of forfeiture have been passed against the three registered dealers in the three appeals respectively and they raise a common question of law in regard to the validity of the said orders By consent Civil Appeal No 678 of 1957 has been argued before us as the principal appeal and it has been conceded that our decision in that appeal will govern the two other appeals We would therefore set out the facts in Civil Appeal No 678 of 1957 and deal with the merits of the points raised for our decision in that appeal Rai Bahadur Hurdut Roy Motilal Jute Mills Katihar hereinafter called the first respondent was at the 43 334 material time registered as a dealer under the Act and was carrying oil business of manufacture and sale of gunny bags Hessian and other jute products at Katihar in the district of Purnea During the period April 1 1950 to March 31 195 1 the said respondent sold and despatched its ware worth about Rs 9224386 to dealers outside the State of Bihar and realised a sum of Rs 211222 9 6 as sales tax from such dealers The said respondent s assessment to sales tax for the relevant period was taken up by the Superintendent of Sales Tax Purnea hereinafter called the second respondent on May 31 1953 and in consequence of these proceedings the impugned order of forfeiture came to be passed Meanwhile article 286 of the Constitution along with other articles was considered by this Court in the State of Bombay Anr vs The United Motors India Ltd Ors The question which this Court bad to consider in that case was about the vires of the impugned provisions of the Bombay Sales Tax Act 1952 Act XXIV of 1952 and for the decision of the said question article 286 fell to be Considered According to the majority judgment in that case article 2861a read with the explanation thereto and construed in the light of article 301 and article 304 prohibits the taxation of sales or purchases involving inter State elements by all States except the State in which the goods are delivered for the purpose of consumption therein The latter State is left free to tax such sales or purchases and it derives this power not by virtue of the explanation to article 2861 but under article 2433 read with Entry 54 of List 11 The view that the explanation does not deprive the State in which the property in the goods passed of its taxing power and that consequently both the State in which the property in the goods passes and the State in which the goods are delivered for consumption have the power to tax is not correct When the first respondent s assessment was taken up by the second respondent his attention was invited to this Court s decision in the case of the United Motors 1 he followed the said decision and held that 1 335 the turn over of Rs 9224386 1 6 on account of despatch of manufactured jute products to out of Stat buyers was exempted from the levy of tax this meant a deduction of the said amount from the amount of Rai Bahadur the total turnover shown by the first respondent in the return submitted by him according to the provisions of the Act Subsequently the second respondent proceeded against the first respondent under section 14A of the Act and issued a notice in that behalf on June 18 1954 By this notice the first respondent was called upon to show cause why the entire amount of Rs 211222 9 6 which had been recovered by him as sales tax from the dealers should not be forfeited to Government The first respondent showed cause but the second respondent was not satisfied with the explanation given by the first respondent and so he directed the first respondent to deposit the said amount into the Government treasury and produce the proof of payment before him within a month of the receipt of his order This order was passed on February 10 1955 It shows that the second respondent thought that the matter raised for his decision was simple the first respondent had collected the amount in question as tax under the Act from his customers for and on behalf of the appellant and so he could not retain the said amount it must go to the State coffers He also held that the first respondent had represented to the purchasers that the amount was chargeable as sales tax under the Act and as such the first respondent had clearly contravened the explicit provisions of section 14A of the Act read with r 19 of the Bihar Sales Tax Rules hereinafter called the Rules It is on these findings that the second respondent passed the impugned order of forfeiture The first respondent then applied to the Patna High Court tinder articles 226 and 227 of the Constitution challenging the validity of the said order It was urged on his behalf that the proviso to section 14A under which the impugned order was purported to have been passed did not apply to the case of the first respondent and as such the order was Dot justified 336 by the said proviso It was also contended that if it is held that the said proviso justified the impugned order it was ultra vires the State Legislature inasmuch as it violates article 201 and article 312 of the Constitution The High Court did not consider the first contention raised before it it dealt with the two constitutional points urged by the first respondent and found in his favour on both of them On these findings the petition filed by the first respondent was allowed the impugned order of forfeiture was set aside and the proceedings taken against the first respondent under section 14A were quashed The appellant then applied for and obtained a certificate from the said High Court under article 1321 of the Constitution On behalf of the appellant Mr Lal Narain Sinha has contended that the High Court was in error in holding that the proviso to section 14A violates either article 201 or article 312 of the Constitution He has addressed us at length in support of his case that neither of the two articles is violated by the impuged proviso On the other hand the learned SolicitorGeneral has sought to support the findings of the High Court on the said two constitutional points and he has pressed before us as a preliminary point his argument that on a fair and reasonable construction the proviso cannot be applied to the case of the first respondent We would therefore first deal with this preliminary point In cases where the vires of statutory provisions are challenged on constitutional grounds it is essential that the material facts should first be clarified and ascertained with a view to determine whether the impugned statutory provisions are attracted if they are the constitutional challenge to their validity must be examined and decided If however the facts admitted or proved do not attract the impugned provisions there is no occasion to decide the issue about the vires of the said provisions Any decision on the said question would in such a case be purely academic Courts are and should be reluctant to decide constitutional points merely as matters of academic importance 337 Before considering the preliminary point raised by the first respondent it is necessary to refer briefly the relevant scheme of the Act The Act was originally passed in 1947 because the Legislature thought it necessary to make an addition to the revenue of Bihar and for that purpose to impose a tax on the sale of goods in Bihar The provisions of the Act as well as the statutory Rules framed under it have been subsequently modified from time to time In our present discussions we would refer to the provisions and the Rules which were in operation at the material time The goods the sale of which is taxed under the Act are defined by section 2d as meaning all kinds of moveable property other than those specifically excepted Section 2g defines sale inter alia as meaning any transfer of property in goods for cash or other considerations and the second proviso to it prescribes that the sale of any goods 1 which are actually in Bihar at the time when in respect thereof the contract of sale as defined in section 4 of that Act is made or 2 which are produced or manufactured in Bihar by the producer or manufacturer thereof shall wherever the delivery or contract of sale is made be deemed for the purposes of this Act to have taken place in Bihar The tax leviable Linder the Act is defined by section 2hh as including a fee fixed in lieu of the tax under the first proviso to section 5 whereas under section 2i turnover means the aggregate of the amounts of sale prices received and receivable by a dealer in respect of sale or supply of goods or carrying out of any contract effected or made during the given period or where the amount of turnover is determined in the prescribed manner the amount so determined Section 4 which is the charging section provides that every dealer whose gross turnover during the specified period on sales which have taken place both in and outside Bihar exceeds Rs 10000 shall be liable to pay tax on sales which have taken place in Bihar oil and from the date of the commencement of the Act This section shows that the incidence of taxation can be attracted only where the gross turnover of the dealer exceeds Rs 10000 and in 338 determining this prescribed minimum sales which take place both in Bihar and outside are taken into account Section 5 prescribes the rate of tax at six pies in a rupee on the taxable turnover The provisos to this section confer specific powers on the State Government the first proviso which is relevant for our purpose empowers the State Government by notification to fix a higher rate of tax not exceeding one anna in a rupee or any lower rate of tax in respect of sale of any goods or class of goods specified in such notification subject to such conditions as it may impose The explanation to this section indicates what the taxable turnover for the purpose of the section means Taxable turnover according to this explanation means that part of a dealer s gross turnover on sales which have taken place in Bihar during any period which remains after deducting therefrom the items specified in cls a and b of the explanation The sale of any goods declared from time to time as tax free goods under section 6 is one of those items Section 6 empowers the State Government to exempt sale of any goods or class of goods from the levy of tax under this Act subject to the conditions specified in the section whereas section 7 empowers the Government to exempt dealers from tax and section 8 authorises the Government to prescribe points at which goods may be taxed or exempted Section 9 deals with the question of registration of dealers and provides that no dealer who is liable to pay tax under section 4 shall carry on business unless he has been registered under the Act and possesses a registration certificate Under section 11 a list of registered dealers is published and by section 12 such registered dealers are required to furnish such returns by such dates and to such authorities as may be prescribed Section 13 prescribes the procedure for assessment and section 14 requires that the tax payable under the Act shall be paid in the manner hereinafter provided at such intervals as may be prescribed Section 142 requires the registered dealer to pay into a Government treasury the full amount of tax due from him according to the returns which he has to file and has to 339 furnish along with the said return a receipt from the treasury showing the payment of such amount Having thus provided for the recovery of the tax charged under section 4 section 14A in effect authorises registered dealers to reimburse their dues by making collections of the tax payable by them in accordance with the restrictions and conditions as may be prescribed It provides that no dealer who is not a registered dealer shall realise any amount by way of tax on sale of goods from purchasers nor shall any registered dealer make any collection of tax except in accordance with such restrictions and conditions as may be prescribed That takes us to the proviso to section 14A with which we are directly concerned in the present appeal It reads thus Provided that if any dealer collects any amount by way of tax in contravention of the provision of this section or the conditions and restrictions prescribed thereunder the amount so collected shall without prejudice to any punishment to which the dealer may be liable for an offence under this Act be forfeited to the State Government and such dealer shall pay such amount into the Government treasury in accordance with a direction issued to him by the Commissioner or any officer appointed under section 3 to assist him and in default of such payment the amount shall be recovered as an arrear of land revenue The effect of this proviso is clear A dealer is authorised to collect amounts by way of tax from the purchasers only in accordance with the provision of section 14A and the conditions and restrictions prescribed thereunder The conditions and restrictions referred to in the proviso are to be found in the material Rules framed under the Act If it is shown that a dealer has collected an amount by way of tax in violation of the conditions and restrictions prescribed by the Rules he incurs the penalty of forfeiture as specified in the proviso There can be no doubt that before the penalty of forfeiture can be imposed upon the dealer under the proviso it must be shown that he has acted contrary to the conditions and restrictions prescribed 340 by the Rules It would not be enough to show that the collection of the amounts in question by the dealer is otherwise illegal or improper The contravention of the statutory provision contained in section 14A or of the Rules prescribing conditions and restrictions in that behalf alone can form the basis of the imposition of the penalty under the proviso This position is not disputed before us The appellant contends that the proviso is attracted to the present case because the first respondent has contravened the conditions and restrictions imposed by the proviso to r 19 whereas the first respondent argues that a proper construction of this latter proviso does not justify the appellant s plea It would thus be seen that the decision of the preliminary point raised by the first respondent involves the narrow question of the construction of the proviso to r 19 Before construing the said proviso it is however necessary to refer to section 33 of the Act This section was enacted on April 41951 but it has been expressly made retrospective as from January 26 1950 Therefore at the material time this section must be deemed to have been in operation Section331aiprovides that notwithstanding anything contained in the Act a tax on the sale or purchase of goods shall not be imposed under the Act where such a sale or purchase takes place outside the State of Bihar Section 332 makes the explanation to cl 1 of article 286 of the Constitution applicable for the interpretation of subcl i of cl a of sub section It is common ground that if the relevant provision just cited is construed in the light of the decision of this Court in the case of the United Motors 1 there can be no doubt that the sales which are the subject matter of the present proceedings consist of transactions on which a tax cannot be imposed under the Act That is why the appellant strongly relies on this provision and contends that in construing the proviso to r 19 the true legal position in respect of the transactions in question must be borne in mind Let us now read the proviso to r 19 Rule 19 itself prescribes the procedure which has to be followed by 1 341 a registered dealer in realising any amount by way of tax on sale of goods from purchasers This procedure refers to the issue of a cash memo or a bill as prescribed by it The proviso to this Rule lays down that no such registered dealer shall realise any amount by way of tax at a rate higher than the rate at which he is liable to pay tax under the Act or realise any amount by way of tax in respect of such part of his turnover as is allowed to be deducted from his gross turnover for the determination of his taxable turnover under the Act or these Rules The appellant relies on the latter part of the proviso and argues that the part of the turnover of the first respondent which is in question fell within section 331a1 and as such was not liable to be taxed That being so there was no justification for the first respondent to collect any amount by way of tax from his purchasers under section 14A The scheme of section 14A is to permit the registered dealer to collect such amounts of tax from his purchasers as he in his turn is liable to pay to the appellant Authority to collect such tax amounts given to the registered dealer inevitably postulates his liability to pay a similar amount to the appellant Therefore the conduct of the first respondent in collecting amounts by way of tax from his purchasers amounts to a breach of section 14A itself It is also contended that having regard to the provisions of section 331ai the first respondent was entitled to claim a deduction of the transations in question from his gross turnover under the latter part of the proviso and that clearly means the first part of the said proviso applies to his case and it prohibited him from realising the said amounts His conduct in collecting the amounts therefore constitutes a breach of the conditions specified in the proviso to r 19 In appreciating the validity of these arguments it would be relevant to remember that at the material time there was considerable confusion in the minds of the public as well as the State authorities about the true scope and effect of the provisions of article 2861 of the Constitution It is not disputed that during the material period and in the years preceding it registered 44 342 dealers used to pay tax in respect of transactions which were really not liable to be taxed under section 331ai and such tax was being received by the appellant In fact as we have already pointed out section 14 of the Act imposes a liability on the registered dealer to furnish along with his return a receipt for the payment of the tax which is payable under the return Such payments were made by registered dealers in respect of similar transactions and were accepted It is an accident that the assessment proceedings of the first respondent were actually taken up for decision by the second respondent after the decision of this Court in the case of the United Motors 1 If the question about the first respondent s liability to pay the tax under the Act had been decided before the date of the said decision there is no doubt that he would have been required to pay the tax for the transactions in question Indeed it is common ground that the notification issued for the material period levied a tax at three pies on the goods in question if the sales tax authority is satisfied that the goods have been despatched by or on behalf of the dealer to any person outside the Province of Bihar This notification is consistent with the definition of the word sale as it then stood It is thus clear that at the material time the appellant thought that transactions like those in question in the present appeal were liable to pay the tax at the rate of three pies as prescribed by the relevant notification the registered dealers also had no doubt on the point and so taxes were collected in respect of such transactions by the appellant from the registered dealers and by the registered dealers in their turn from their purchasers Nevertheless after the enactment of section 33 the legal fiction about the retrospective operation of the said section must be given effect to and in construing the proviso to r 19 it must be assumed that the transactions in question were outside the scope of the Act and no tax could have been imposed in respect of them Construing the proviso on this assumption can it be said that in respect of the part of the first respondent s 1 343 turnover which is in question a deduction was allowable within the meaning of the proviso In our opinion this question cannot be answered in favour of the appellant Rule 19 itself was framed in 1949 and has not been amended subsequent to the enactment of section 33 As it was framed its reference to the allowable deductions was clearly based on the provisions of sections 6 7 and 8 of the Act This position would be clear beyond all doubt if we read the material words in the proviso in the light of the explanation to section 5 of the Act The explanation in terms enumerates deductions which have to be made in determining the taxable turnover of the registered dealer and it is to these deductions which are allowable under the three sections specified in the explanation to which the latter part of the proviso to r 19 refers A claim for the exclusion of a part of the first respondent s turnover on the strength of section 331ai cannot therefore be said to be an allowable deduction under the proviso This question can be considered from another point of view The provisions which allow deductions to be made or grant exemptions in respect of certain transactions obviously postulate that but for them the transactions in question would be liable to tax under the Act and so when such transactions are included in the return the registered dealer is allowed to claim appropriate deductions in respect of them But the position with regard to section 33 is entirely different transactions which attract the provisions of the said section are in substance outside the scope of the Act and no tax can be imposed on them at all If that be the true position the claim which can be made by the registered dealer in respect of such transactions cannot in law be regarded as a claim for allowable deductions or exemptions properly so called it is really a claim that the Act itself does not apply to the said transactions Therefore in our opinion it would be straining the language of the second part of the proviso to r 19 to hold that the transactions in question fell within its purview There is one more point to be considered in this connection Form VI which has been prescribed for 344 making the returns under section 12 requires the gross turnover to be mentioned at the outset and then it provides for the different deductions allowable under the Act This form was prescribed in 1949 and has not been amended after the addition of section 33 to the Act On looking at this form it seems difficult to entertain the argument that the claim for the total exclusion of the transactions in question can be made under any of the headings prescribed in the form The appellant however contends that the first item of gross turnover means the whole of the gross turnover which must include all sale transactions whether they took place within Bihar or outside it and in support of this argument reliance is placed on the definition of turnover contained in section 21 If the whole of the gross turnover has to be mentioned under item 1 it is urged the claim for the exclusion of the transactions in question can well be adjusted under one or the other of the deduction items prescribed in the form We are not inclined to accept this argument The form as it has been prescribed construed in the light of the material provisions contained in sections 6 7 and 8 does not support the case that in prescribing its several items it was intended that the transactions failing under section 33 should be first shown under item 1 and then excluded under one or the other of the remaining items of deduction Besides it may be relevant to point out that the heading of Chapter VII which deals with the submission of returns by dealers is return of taxable turnover and it is arguable that the gross turnover mentioned in Form VI may mean gross taxable turnover and not the gross turnover including the transactions which are outside the scope of the Act Then as to the argument about the contravention of section 14A itself it is difficult to appreciate how any provision of section 14A can be said to have been contravened Section 14A consists of two parts both of which are put in a negative form The second part with which we are concerned in effect means nothing more than this that a registered dealer can make collections of such tax only as is payable by him in accordance with the restrictions and conditions as may be 345 prescribed If the argument is that the first respondent was not liable to pay any tax and as such was not entitled to make any corresponding collection then the collection made by him may fall outside section 14A and be otherwise unjustified or improper but it does not amount to the contravention of any provision of section 14A as such In fact section 14A itself refers to the restrictions and conditions which may be prescribed and as we have already seen these conditions and restrictions are prescribed by the Rules in general and by r 19 in particular So the argument urged under section 14A takes us back to the question as to whether the proviso to r 19 has been contravened In dealing with this question we cannot ignore the fact that the relevant provisions which fall to be construed in the present appeal impose a serious penalty on the registered dealer and so even if the view for which the appellant contends may perhaps be a possible view we see no reason why the other view for which the first respondent contends and which appears to us to be more reasonable should not be accepted In the result we hold that the proviso to section 14A cannot be invoked against the first respondent and so the order of forfeiture passed against him by the second respondent is unjustified and illegal In view of this conclusion it is unnecessary to consider the objections raised by the first respondent against the validity of the proviso on the ground that it contravenes articles 201 and 312 of the Constitution We may incidentally add that during the course of the arguments before us we have also heard all the learned counsel on the question as to whether the said proviso contravenes the provisions of article 191f as well The result is the appeal fails and is dismissed with costs The decision of this appeal governs Civil Appeals Nos 546 of 1958 and 115 of 1959 They also fail and are dismissed with costs Appeal dismissed

On March 9 1956 a conspiracy to divulge the budget proposals on receiving valuable consideration was discovered and a case was registered under section 165A of the Indian Penal Code section 52 of the Prevention of Corruption Act 1947 section 5 of the Official Secrets Act 1923 and section 120B of the Indian Penal Code Investigation started on March 10 1956 and thereafter pardon was tendered to M by the Additional District Magistrate under section 337 of the Code of Criminal Procedure Owing to technical legal difficulties a complaint under section 5 of the Official Secrets Act read with section 120B of the Indian Penal Code was filed against the persons involved and proceedings began before a magistrate on this complaint In the course of these proceedings the prosecution wanted to examine M as an approver but the accused persons objected that as the proceedings before the magistrate were only under section 5 of the Official Secrets Act read with section 12 OB of the Indian Penal Code and as no pardon could be tendered under section 337 of the Code of Criminal Procedure for these offences M could not be treated as an approver but could be examined only as an ordinary witness It was contended for the prosecution that as the person to whom pardon was tendered was expected to tell the whole truth including details of other subsidiary offences committed in the course of the commission of the offence for which pardon was tendered such pardon must be held to include the subsidiary offences though not of the nature mentioned in section 3771 and therefore M could be considered as an approver in the present proceedings Held that a pardon under section 3771 of the Code of Criminal Procedure could be tendered only with respect to the offences mentioned therein and that as section 5 of the Official Secrets Act read with section 120B of the Indian Penal Code was not covered by the words of section 3371 no pardon could be granted for an offence of this nature Consequently as the proceedings before the magistrate were only with respect to these offences M could not be treated as an approver for the purpose of these proceedings

il Appeals Nos 112 to 116 of 55 Appeals from the judgment and order dated December 141951 of the Madras High Court in AAO 210 of 1946 C M Ps 3273 and 3274 of 1946 AAO 661 of 1946 and AAO 49 of 1947 respectively arising out of the judgment and order dated January 28 1946 of the Subordinate Judge Devakottah in 1 A No 18 of 1945 in O section No 91 of 1941 A V Viswanatha Sastri K Parasaran and MSK Aiyangar for the appellants K Rajah Iyer R Rangachari and R Ganapathy Iyer for the respondent November 13 The Judgment of the Court was delivered by GAJENDRAGADKAR J These five appeals arise from a partition suit OS No 91 of 1941 filed by the respondent Subramanian Chettiar against his brother Ct A Ct Nachiyappa Chettiar and his four sons appellants 1 to 5 respectively in the court of the Subordinate Judge of Devakottai and they have been brought to this Court with a certificate granted by the High Court of Madras under article 133 of the Constitution The principal appeal in this group is Civil Appeal No 112 of 1955 and the questions which it raises for our decision relate to the validity of the award made by the arbitrators to whom the matters in dispute between the parties were referred pending the present litigation It would however be convenient at the outset to state broadly the material facts leading to the suit and indicate the genesis and nature of the five respective appeals The appellants and the respondent belong to the Nattukottai Chettiar community and their family which is affluent had extensive money lending business in Burma Chidambaram Chettiar the father of appellant 1 and the respondent died on August 20 1926 At the time of his death the respondent was an 212 infant 6 years of age Appellant 1 had already been associated with his father in the management of the business and on his father s death he became the manager of the family and took charge of its affairs and business On September 6 1941 the respondent gave notice to appellant 1 calling upon him to effect a partition and to render accounts of his management and the properties of the family This demand was not complied with and so the respondent instituted the present suit on September 24 1941 According to the plaint the assets of the family consisted of immoveable properties in India which was then described as British India and in Pudukottai an Indian State These consisted of Items Nos 1 to 12 and Item No 13 respectively in Sch A The jewels and moveables belonging to the family were set out in Sch B whereas two money lending firms which the family owned and conducted at Minhla and Sitkwin in Burma were set out in Schs D and E respectively The plaint further alleged that Chidambaram Chettiar had entered large amounts belonging to the family in the names of the members of the family in what are called Thanathu maral accounts and these amounts were invested in various firms or lent to several individuals The total of these investments came to about Rs 1500000 described in Sch C The assets thus described in Schs IC ID and E included immoveable properties in Burma and the respondent claimed alia If share in all of them It appears that the family had endowed several properties in favour of charities and they were described in Sch F The respondent claimed that in effecting partition between the parties a scheme should be framed for the management of the said respective charities According to the respondent appellant I had in the course of his management manipulated accounts and had in fact misappropriated large amounts and so he claimed an account from appellant 1 That in brief is the nature of the claim made by the respondent in his plaint At the date of the suit appellants 3 to 5 were minors and they were represented by appellant 1 It appears that a written statement was filed by appellant 1 for 213 himself and as guardian of his minor sons in which the relationship of the respondent and his half share to the family properties were admitted Several contentions were however raised with reference to the properties available for partition It was alleged that Items Nos 10 and 11 in Sch A were dedicated to charity and as such not divisible and that Item No 3 was being used as a school The written statement referred to some more properties which had not been included in the plaint though they were liable to partition In regard to the jewels and moveables it was contended that several items not belonging to the family and some not even in existence bad been shown in the said schedule It was also alleged that some of the jewels shown in the said schedule belonged to the several appellants as their separate property Then as regards the Thanathu maral accounts the appellants gave a detailed history of the amounts and their investments It was admitted that the said amounts belonged to the family though the investments had been made in the names of the different members of the family It was however urged that the total value of the assets enumerated in Sch C would be only Rs 900000 and not Rs 1500000 as alleged by the respondent The respondent s case that appellant I had manipulated accounts and misappropriated family funds was denied and it was urged that for the purpose of partition the assets of the family as they stood on the date of the partition should be taken into account The appellants also pleaded that the court had no jurisdiction to divide the immoveable properties situated in Burma According to them there was a special practice obtaining among the families of the Nattukottai Chettiar community according to which appellant I was entitled to a decent remuneration for the management of the joint family business and properties According to another custom pleaded by the appellants it was alleged that provision had to be made for future Seermurais for the unmarried daughters of the family Broadly stated these were the pleas raised by appellants 1 and 3 to 5 Appellant 2 who was a major filed a separate written 214 statement generally adopting the written statement filed by appellant 1 nevertheless he put the respondent to the strict proof of the allegations made by him in the plaint in support of his claim In reply to the contentions thus raised by the appellants the respondent filed a reply In this statement he pleaded inter alia that there was a custom amongst the community for a member of the joint family to set up a separate family after marriage and that monies drawn by him thereafter would be entered in a separate account called Pathuvazhi and that at the time of the partition the amounts appearing in the said account would be debited to the said member The respondent claimed that account should be made in accordance with this custom in affecting the partition of the family On these pleadings the learned trial judge framed fifteen issues It appears that an attempt Was made by the parties to have their disputes referred to arbitration and in fact a reference was made on April 6 1943 but this attempt proved abortive and the suit was set down for hearing before the court and the hearing actually commenced on December 11 1943 Meanwhile on December 6 1943 appellant 2 filed an application under 0 8 r 9 of the Code of Civil Procedure for permission to file an additional written statement This application was numbered as I A No 988 of 1943 It would be relevent to refer to the plea which appellant 2 sought to raise by this application He alleged that the deceased Chidambaram Chettiar bad set apart on March 25 1925 two sums of money of Rs 210251 4 0 each separately in the name of the respondent and appellant I so as to vest the same in them forthwith and he urged that these amounts and their accretions were not the properties of the family liable to partition in the suit This application was opposed by the respondent On December 14 1943 the trial judge dismissed the said application on the ground that it sought to raise a new and inconsistent plea and that had been really inspired by appellant 1 On December 29 1943 the learned judge delivered his judgment in the suit and it was followed by a preliminary decree 215 Against this decision three appeals were preferred before the High Court of Madras A section No 115 of 1948 was filed by appellant 2 and No 199 of 1944 by appellants 1 3 to 5 whereas A section No 499 of 1944 was filed by the respondent It appears that under his appeal No 115 of 1944 appellant 2 made an application for stay of further proceedings before the Commissioner CMP No 1402 of 1944 On this petition the High Court ordered that there was no need to stay all proceedings before the Commissioner and that it would be enough if the passing of the final decree alone was stayed As a result of this order interim stay which had been granted ex parte was vacated After the final order on this application was passed the Commissioner commenced his enquiry but before the enquiry could make any progress the parties decided to refer their disputes for arbitration Accordingly on July 18 1944 a joint application was filed by the parties before the trial judge requesting him to refer to the arbitration of Mr VE Ramanathan Chettiar of Kandanoor and RM section RM Chellappa Chettiar of Kothamangalam all matters in dispute in the suit and all matters and proceedings connected therewith An application under 0 32 r 7 was also filed since three of the parties to the dispute were minors On July 21 1944 the trial court allowed the said application and certified that the proposed reference was for the benefit of the minors and so referred the matters in dispute in the suit and all matters and proceedings connected therewith for determination by the two arbitrators named by the parties The arbitrators then began their proceedings and made an interim award on August 1 1944 It was followed by their final award on December 61944 This award was filed in the trial court On January 3 1945 the appellants filed a petition I A No 18 of 1945 under sections 30 and 31 of the Indian hereinafter called the Act By this petition the appellants urged that the award should be set aside on the grounds enumerated by them in the petition Their case was that the reference to arbitration 216 had been brought about by coercion and undue influence that the arbitrators had not held any proper Chettiar enquiry and that they were partial and biased Thus the award was sought to be set aside on the ground that the reference was bad and that the arbitrators were guilty of misconduct The validity of the award was also challenged on the ground that both the reference and the award were invalid because they contravened the principle of private international law that courts in one country would have no jurisdiction to adjudicate on title to immoveable property situated in a foreign country or to direct its division the reference and the award dealt with immoveable properties in Burma and so they were invalid The appellants further contended that the reference to arbitration was opposed to the orders passed by the High Court in CMP No 1402 of 1944 and as such it was invalid This application was resisted by the respondent He traversed all the allegations made by the appellants and claimed that a decree in terms of the award should be passed At the hearing of this petition no oral evidence was led by the parties they were content to base their case on the documents produced on the record and on points of law raised by them The trial judge rejected the appellants case about the alleged misconduct of the arbitrators He also found that there was no substance in the contention that the reference was the result of undue influence or coercion He was satisfied that the arbitrators had made a proper enquiry and that the award was not open to any objection on the merits He however held that the reference to the arbitrators which included matters in dispute in the suit comprised questions of title in relation to immoveable properties in Burma and so it was without jurisdiction and invalid In his opinion the reference also included the dispute relating to the sums of Rs 210251 4 0 which had been entered in the Thanathu maral accounts of appellant 1 and the respondent and that this part of the reference contravened the order passed by the High Court in CMP No 1402 of 1944 He thus upheld these two 217 contentions raised by the appellants and set aside the reference and the award It was against this order that the respondent preferred CMA No 210 of 1946 The High Court has allowed the respondent s appeal It has confirmed the findings of the trial court in respect of the pleas raised by the appellants as to the misconduct of the arbitrators and as to the invalidity of the reference on the ground that it was the result of coercion and undue influence It has however reversed the conclusions of the trial court that the reference and the award were invalid inasmuch as they related to immoveable properties in Burma and contravened the stay order passed by the High Court The High Court has construed the order by which reference was made to the arbitrators in the present proceedings as well as the award and has held that they are not open to be challenged on either of the two grounds urged by the appellants It was also urged before the High Court that the order of reference was invalid because under section 21 of the Act the trial court was not competent to make the reference this contention has been negatived by the High Court In the result the High Court has found that the reference and the award were valid and it has directed that a decree should be passed in terms of the award It is against this decision that Civil Appeal No 112 of 1955 arises and as we have already mentioned the questions which it raises relate to the validity of the award on which the two courts have differed Before we deal with the merits of these points however we may indicate how the other appeals arise In A section No 115 of 1944 filed by appellant 2 before the High Court the appellant presented Miscellaneous Application CMP No 2374 of 1946 under 0 23 r 3 for an order that the interim award exhibit P 15 passed by the arbitrators which had been signed by all the parties in token of their consent should be treated as a compromise and a decree passed in accordance with it under 0 23 r 4 The High Court has observed that in view of its decision in CMA No 210 of 1946 it was really unnecessary to pass any order in this appeal but it thought that since the matter was likely to go 28 218 in appeal to this Court it would be better to make a formal order and direct that a decree in terms of the sayinterim award should be drawn under 0 23 r 3 Against this decision the appellants have preferred Civil Appeal No 116 of 1955 in this Court The appellants had made a similar application in A section No 199 of 1944 and it was numbered as CMP No 3273 of 1946 The High Court has allowed this application for similar reasons and its decision has given rise to Civil Appeal No 115 of 1955 In the trial court the appellants had filed two similar applications under 0 23 r 3 but they had been rejected by the trial court these orders had given rise to two appeals in the High Court CMA No 661 of 1946 and CMA No 49 of 1947 The High Court has allowed these appeals and has ordered that a decree in terms of compromise should be passed under 0 23 r 3 Against the orders thus passed by the High Court in these two appeals Civil Appeals Nos 113 and 114 of 1955 have been filed in this Court That is the genesis and nature of the four subsidiary appeals in the group We will now revert to the points which arise for our decision in the principal Civil Appeal No 112 of 1955 The first ground on which the validity of the reference and the award is challenged is based on the assumption that the reference involved the determination of the title to immoveable properties situated in Burma andor that the award has actually determined the said question of title The appellants contend that there can be no doubt that courts in this country have no jurisdiction to determine questions of title in respect of immoveable properties in foreign countries or to direct a division thereof This position is not and cannot be disputed The rule of law on this subject has been thus stated by Dicey The courts of a foreign country have no jurisdiction to adjudicate upon the title or the right to the possession of any immoveable property not situate in such country 1 It is also urged that where a court has no jurisdiction to determine any 1 Dicey s Conflict of Laws 6th Ed pp 141 and 348 219 matter in controversy such as the question of title in respect of the foreign immoveable property it has no jurisdiction to refer it for the determination of the arbitrators This position also is not and cannot be disputed The appellants further argued that if the reference includes properties over which the court had jurisdiction as well as those over which it had no jurisdiction the whole of the reference becomes invalid and in such a case it is not permissible to separate the invalid part of the reference from that which is valid The correctness of this contention is disputed by the respondent but for the purpose of the present appeal the respondent is prepared to argue on the assumption that even this contention is well founded The respondent s case is that neither the reference nor the award purports to deal with any immoveable property in Burma and so the challenge to the validity of the reference and the award on the legal points raised by the appellants cannot succeed It is therefore necessary to examine the reference and the award and decide whether the factual assumption made by the appellants in urging their legal grounds against the validity of both the reference and the award is justified In dealing with this question it is necessary first to ascertain the scope of the request made by the parties when they applied to the trial court for reference of their dispute to arbitration In their application exhibit P 12 the parties have briefly indicated the nature of the respondent s claim and have stated that the dispute between the parties was then pending before the High Court in the form of three appeals preferred by them Then it is averred that appellants 3 to 5 are minors but it is added that the proposed reference was for their benefit and so another application had been separately made for the court s sanction to the said reference in respect of the said minors The parties desire and agree said the application that all matters in dispute in this suit and all matters and proceedings connected therewith should be referred to the unanimous decision of the two named arbitrators They had also agreed that they would abide by the 220 unanimous decision of the arbitrators and that the arbitrators should be empowered to partition the properties of the joint family between the parties and if necessary also by payment of monies to equalise the shares and to take the necessary accounts and to decide all matters in dispute between them including costs The parties had further agreed to produce their own papers and copies before the arbitrators and that if the arbitrators needed any further papers accounts or documents which had been filed in court they should be authorised to require the Commissioner to send them to the arbitrators It is on this application that the court made the order that all matters in dispute in this suit and all matters and proceedings connected therewith be referred for determination to the two named arbitrators The question which arises for our decision is What was the scope and extent of the matters thus referred to arbitration In other words did this order of reference include the respondent s claim for a share in the immoveable properties in Burma The appellants contend that the order of reference includes not only all matters in dispute in the suit but also all matter and proceedings connected therewith and their case is that these clauses are wide enough to include the respondent s claim for a share in the immoveable properties in Burma There is no doubt that the latter clause refers to matters and proceedings connected with the suit but the appellants contention can be upheld only if it is shown that the respondent s claim for a share in the properties in Burma was connected with the suit or was a part of the matters connected with it at the material time What then was the nature and extent of the dispute between the parties at the material time Let us examine the pleadings of the parties the issues framed by the trial court the decision of the trial court on them and ascertain the nature and extent of the subsisting dispute between them which was pending in the High Court in the three respective appeals There is no doubt that in his plaint the respondent had claimed a share in the immoveable properties in 221 Burma In regard to this claim his allegation was that with the aid of the advances made by the family firms in Burma and of those in the accounts described as Thanathu maral accounts lands and other properties had been purchased and they formed part of the assets of the firms and the Thanathu maral accounts The written statement filed by appellant 1 admitted that there were Thanathu maral transactions during the lifetime of Chidambaram Chettiar and that all sums taken from the family assets though invested for the sake of convenience in the name of one or the other member of the family belonged to the family and had been treated as family assets According to the appellants however the extent of the Thanathu maral transactions had been exaggerated by the respondent On the whole the written statement clearly admitted that the branches of appellants 1 to 5 on the one hand and of the respondent and his son on the other are entitled to a half share each but they pleaded that the said shares have to be allotted only after making some provisions out of the joint family funds for the payments of the future Seermurai etc due to the unmarried daughters in the family They also contended that the court had no jurisdiction to divide the immoveable properties in Burma though it was admitted that the respondent was entitled to the relief in respect of the division of the family assets as set forth in the written statement This written statement was adopted by appellant 2 though in a general way be denied the allegations in the plaint which had not been expressly admitted by him in his written statement It would thus be seen that the respondent s share in the family properties was not in dispute nor was his share in the properties in Burma seriously challenged The only plea raised in respect of the latter claim was that the court bad no jurisdiction to deal with it This state of the pleadings in a sense truly reflected the nature of the dispute between the parties It is common ground that the family is a trading family and there could be no doubt that the assets of the family were partible between the members of the family It was on these 222 pleadings that the trial judge framed fifteen issues and set down the case for hearing At this stage appellant 2 wanted to go back upon his written statement by making further and additional pleas That is why he filed an application exhibit P 3 a for leave to file an additional written statement As we have already mentioned this application was rejected by the trial court but for our present purpose it is relevant to consider the pleas which he wanted to raise by this additional statement He wanted to contend that the amounts set apart in favour of appellant 1 and the respondent respectively by their father remained invested distinctly and separately during his lifetime and that in law they ought to be taken to be separate properties belonging to the two respective branches In other words the plea thus sought to be raised was that by reason of the investment of the amounts in the names of appellant 1 and the respondent respectively the said amounts constituted the individual and separate monies of the respective persons and became the separate properties of their branches Appellant 2 thus raised a Contention about the character of the amounts invested by the deceased Chidambaram Chettiar in the two names of his sons respectively and in that sense the issue which he sought to raise was in regard to the character of the amounts themselves It had no direct reference to any immoveable properties in Burma Since the trial court refused to allow appellant 2 to raise this additional plea he proceeded to try the issues already framed by him and as we have already indicated he held that he had no jurisdiction to deal with immoveable properties in Burma and appointed a Commissioner to make an enquiry in pursuance of the preliminary decree The preliminary decree in terms excluded from its operation the immoveable properties in Burma as well as in the Indian State of Pudukottai In the proceedings before the Commissioner parties agreed that the properties in Burma and Pudukottai should be left out of account and so no dispute appears 223 to have been raised before him that the accounts of the firms in Burma should be taken by him In the appeal filed by the respondent against this preliminary decree he did not challenge the decision of the trial court that he had no jurisdiction to deal with immoveable properties out of British India His appeal raised some other points which it is unnecessary to mention This fact is very significant It shows that the respondent accepted the finding of the trial court and did not want the High Court to consider his claim for a share in the excluded properties In the appeal preferred by appellant 2 he had urged inter alia that the trial court should have allowed him to raise the additional pleas and it appears that he had also raised a point that the trial court bad no jurisdiction to direct a division of the moveable properties of the firms in Burma The grounds taken by appellant 2 in his memo leave no manner of doubt that none of the pleas which he sought to raise before the High Court had any reference to immoveable properties in Burma It is therefore clear that in none of the three appeals pending before the High Court was it urged by any party that the immoveable properties in Burma should be brought within the scope of the partition suit The application made by the parties for arbitration to which we have already referred has deliberately set out the pendency of the three appeals in the High Court at the material time in order to furnish the background for determining the extent and nature of the dispute which was sought to be referred to arbitration The respondent s claim for a share in the properties outside India had been negatived by the trial court and the decision of the trial court had become final because it was not challenged by the respondent and so there can be no doubt that the said claim was outside the purview of the dispute which was then pending between the parties in the High Court It was not and could not have been intended to be a matter in dispute in the suit between the parties or any matter and proceedings connected therewith Therefore we are satisfied that the High 224 Court was right in coming to the conclusion that the reference did not include any claim with regard to the immoveable properties in Burma It is however urged that the reference did include the points raised by appellant 2 in his appeal before the High Court and that no doubt is true But what is the effect of the said grounds raised by appellant 2 As we have already pointed out the said grounds did not raise any question about immoveable properties in Burma They merely raised a dispute about the character of amounts invested by the deceased Chidambaram Chettiar in the names of appellant 1 and the respondent respectively It was a dispute in regard to monies or moveables and so appellant 2 was driven to contend that the trial court had no jurisdiction to deal with such moveables This contention is obviously without substance and has not been raised either in the courts below or before us The only argument raised is that the reference included claims in regard to immoveable properties in Burma and this argument cannot be supported on the ground of the pendency of the appeal by appellant 2 before the High Court because even if the said appeal was allowed it could have no reference to any immoveable properties in Burma Thus the attack against the reference on the ground that it included immoveable properties in Burma must fail Does the award deal with the said immoveable properties in Burma That is the next question which falls to be considered If it does it would be invalid not only because it purports to deal with foreign immoveable properties but also for the additional reason that it is in excess of the terms of reference At the hearing of the present appeals in this Court Mr Viswanatha Sastri for the appellants attempted to criticise the decision of the arbitrators on several grounds but we did not allow him to raise any contentions against the merits of the award because both the courts below have rejected the appellants objections in that behalf and in view of their concurrent findings it would not be open to the appellants to raise the same points over again That is why we would 225 confine ourselves to those portions of the award which according to the appellants show that the arbitrators divided the immoveable properties in Burma and Pudukottai In regard to the properties in Pudukkottai this is what the award says in paragraph 3 The plaintiff and the defendants shall enjoy them in equal halves as under marukkal kuttu In proportion to their respective shares the plaintiff shall pay one half of the taxes and the defendants 1 to 5 the other half Since the aforesaid property has been situate in Pudukottai State it has not been divided on the good and bad qualities of the soil if it is necessary the plaintiff and the defendants shall have it divided in equal halves later on when required In regard to the properties in Burma paragraph 1 of the award recites that after communications are restored in Burma the plaintiff and the defendants have to divide the firms in Burma at the places Minhla and Sitkwin belonging to them and the lands godowns homes gardens and the properties items bank deposits jewels movables all assets etc and the subsequent income attached thereto into two halves and the plaintiff has to take one half and the defendants the other half Paragraph 2 adds that since both the parties have agreed to divide the movable properties attached to the said shop later on the arbitrators had not divided them The award has also stated that the sale deeds at Alagapuri and relating to the lands attached to the said firms have been divided into two lots and for the purpose of safe custody two lists known as Schs A and B have been prepared and both parties have signed the lists Later on at the time of division of the said lands firms and assets all the documents shall be collected together and the parties shall take the documents relating to their respective shares The arbitrators then dealt with the additional plea sought to be raised by appellant 2 and in substance they refused appellant 2 permission to raise that plea because they thought that having regard to the conduct of the parties it was futile to raise such a plea That is why they directed that the plaintiff s branch 29 226 and the defendant s branch have shares in all the amounts and they added that their conduct fully justified the said conclusion and the parties agreed to it It is these portions of the award on which the appellants based their contention that immoveable properties in Pudukottai and Burma have been dealt with by the arbitrators In our opinion this contention is not well founded What the arbitrators have done is to divide the properties which were then the subject matter of the dispute between the parties and having done so they have indicated what the legal position of the parties would be in respect of the properties outside the dispute In appreciating the effect of the words used in the award we must bear in mind that the arbitrators were laymen not familiar with the technical significance of legal expressions and so we must read the relevant clauses as a whole with a view to determine what in effect and substance they intended to decide Now take the recitals in the award to the Pudukottai properties The award expressly states that the properties had not been divided by them and that the plaintiff and the defendants shall have them divided when so required All that the award says is that since the parties had separated and the properties in suit before the arbitrators had been actually divided by metes and bounds the two branches shall enjoy the Pudukottai properties in equal halves This clause in the award cannot be said to divide the said properties or even to determine their shares in them The shares of the parties in the said properties were admitted and so the award merely says that as divided members they will hold and enjoy the properties half and half Similarly in regard to the properties in Burma the award expressly states that the said properties had not been divided and it merely refers to the true legal position that they would be enjoyed by the two branches half and half The arrangement proposed by the arbitrators in respect of the immoveable properties in Burma is very significant They merely asked the parties to hold the documents of title half and half for 227 safe custody and they have added that when the parties decide to divide the properties all the documents would have to be brought together and a partition made according to law That again is an arrangement dictated by commonsense and cannot be said to amount to a decision in any way It is not as if the award declares the shares of the parties in respect of the properties What it does is no more than to state the true and admitted legal position of the parties rights in respect of the said properties In this connection it would be useful to refer to the observations made by Viscount Dunedin in Bageshwari Charan Singh vs Jagarnath Kuari 1 In that case the Privy Council was called upon to consider the question about the admissibility of a petition which was relied upon as an acknowledgment of liability under section 19 sub section 1 of the Limitation Act and it was urged that the said petition was inadmissible because it purported or operated to create or declare a right to immoveable property and as such was compulsorily registrable under section 171b of the Regis tration Act 1908 In urging the objection to the admissibility of the petition a large Dumber of Indian decisions were cited before the Privy Council dealing with the word declare used in section 171b of the and it was apparent that there was a sharp conflict of views In Sakha Ram Krishnaji vs Madan Krishnaji 2 West J had observed that the word declare in section 171b is placed along with create assign limit or extinguish a right title or interest and these words imply a definite change of legal relation to the property by an expression of will embodied in the document referred to and had added that he thought that is equally the case with the word declare On the other hand certain other decisions had construed the word declare liberally in a very wide sense and it was on those decisions that the objection against admissibility of the petition was founded In repelling the objection Lord Dunedin observed that though the word 1 Pat 272 53 IA 130 2 Bom 228 declare might be given a wider meaning they are satisfied that the view originally taken by West J is right The distinction is between a mere recital of fact and something which in itself creates a title These observations assist us in deciding the question as to whether the impugned portions of the award declare the parties rights in immoveable properties in the sense of deciding them as points or matters referred to arbitration In our opinion the High Court was right in answering this question against the appellants Therefore the award is not open to the attack that it deals with immoveable properties out of the jurisdiction of the court That takes us to the next ground of attack against the validity of the award It is urged that the award contravenes the order passed by the High Court on the stay petition filed before it by appellant 2 There is however no substance in this contention All that the High Court directed was that pending the final decision of the appeals before it a final decree should not be drawn In fact the High Court clearly observed that there was no reason for staying all the proceedings pending before the Commissioner That is the usual order made in such cases and it is difficult to appreciate how this order has been contravened by reference to arbitration or by the award that followed it The award is not and does not purport to be a final decree in the proceedings and the proceedings before the arbitrators substantially correspond to the proceedings of the enquiry which the Commissioner would have held even under the order of the High Court Therefore this contention must also fail We must now consider another objection against the validity of the reference which has been seriously pressed before us It is urged that the reference and the award are invalid because the trial court was not competent to make the order of reference under section 21 of the Act Section 21 reads thus Where in any suit all the parties interested agree that any matter in difference between them in the suit shall be referred to arbitration they 229 may at any time before judgment is pronounced apply in writing to the Court for an order of reference Two conditions must be satisfied before an application in writing for reference is made All the interested parties to the suit must agree to obtain a reference and the subject matter of the reference must be any matter in difference between the parties in the suit When these two conditions are satisfied the application for reference must be made at any time before the judgment is pronounced Thus broadly stated the construction of the section presents no difficulty But when we analyse the implications of the two conditions and seek to determine the denotation of the word court difficulties arise What does the word it court mean in this section According to the appellants court means the court as defined by section 2c of the Act section 2c define the court inter alia as a civil court having jurisdiction to decide the questions forming the subject matter of the reference if the same had been the subject matter of a suit and this prima facie means the trial court The argument is that an order of reference can be made only by the trial court and not by the appellate court and so there can be no reference after the suit is decided and a decree has been drawn up in accordance with the judgment of the trial court In the present case a judgment had been delivered by the trial court and a preliminary decree had been drawn in accordance with it and so there was no scope for making any order of reference That is the first part of the argument which must be carefully examined Does the court in the context mean the trial court This construction cannot be easily reconciled with one of the conditions prescribed by the section After a decree is drawn up in the trial court and an appeal is presented against it proceedings in appeal are a continuation of the suit and speaking generally as prescribed by section 107 of the Code of Civil Procedure the appellate court has all the powers of the trial court and can perform as nearly as may be the same duties as are conferred and imposed on the trial court 230 If that be so during the pendency of the appeal can it not be said that matters in difference between the parties in suit continue to be matters in dispute in appeal The decision of the appeal can materially affect the nature and effect of the decree under appeal and there is no doubt that all the points raised for the decision of the appellate court can be and often are points in difference between them in the suit and in that sense despite the decision of the trial court the same points of difference in suit continue between the parties before the appellate court If during the pendency of such an appeal parties interested agree that any matter in difference between them in the appeal should be referred to arbitration the first two conditions of the section are satisfied When section 21 was enacted did Legislature intend that during the pendency of the appeal no reference should be made even if the parties satisfied the first two conditions prescribed by the section In considering this question it would be relevant and material to take notice of the fact that prior to the passing of the Act in 1940 the longstanding practice of Indian courts was to refer to arbitration disputes pending before the appellate court between the respective parties to the appeals If the object of enacting section 21 was to prohibit such reference at the appellate stage it would as the High Court has observed cause a revolution in the existing practice Was such a revolution really intended Having regard to the fact that the words used in section 21 are substantially the same as those used in Sch 11 paragraph 1 of the earlier Code it would be difficult to to sustain the plea that the enactment of section 21 was intended to bring about such a violent departure from the existing practice If that had been the intentionof the Legislature it would have made appropriate changes in the words used in section 21 There fore the word court cannot be interpreted to mean only the trial court as contended by the appellants Similarly the word suit cannot be construed in the narrow sense of meaning only the suit and not an appeal In our opinion court in section 21 includes 231 the appellate court proceedings before which are generally recognised as continuation of the suit and the word suit will include such appellate proceed_ ings We may add that whereas section 41 of the Act is consistent with this view no other section militates against it The next question is When can an application for reference be made The section prescribes that it can be made at any time before the judgment is pronounced It has been fairly conceded before us that the word judgment cannot refer to the various interlocutory orders and judgments that may be passed during the hearing of the suit and so the word judgment cannot be given the meaning assigned to it by section 2 9 of the Code It cannot mean in the context the statement given by the judge of the grounds of a decree or order It must mean a judgment which finally decides all matters in controversy in the suit Thus it follows that it is open to the parties to apply for a reference at any time before the final judgment is pronounced in the suit If that be so can the parties apply for an order referring matters indifference between them even though such matters may have been covered by interlocutory judgments delivered in the meanwhile The appellants suggest that though reference to arbitration may be made at any time before the final judgment is pronounced the subject matter of the reference must be such as is not covered by any decision of the court pronounced in the meanwhile This argument reads the word judgment as judgment in regard to a matter in difference between the parties if a difference between the parties has been covered by an interlocutory judgment it can no longer be referred to arbitration that is the con tention We are not impressed by this contention In our opinion the scheme of the section does not permit the addition of any words qualifying the word judgment used in it The expression at any time before the judgment is pronounced is only intended to show the limit of time beyond which no reference can be made and that limit is reached when a final judgment is pronounced The provision that any 232 matter in difference between the parties in the suit can be referred to arbitration cannot be subjected to the further limitation that the said matter can be referred to arbitration if it is not covered by the judgment of the court The effect of the section appears to be that so long as the final judgment is not pronounced by the court any matter i e some or all the matters in difference between the parties can be referred to arbitration provided they are agreed about it If a reference can be made even at the appellate stage when all matters in difference between the parties are covered by the final judgment of the trial court it is difficult to understand why in allowing reference to be made during the pendency of the suit in the trial court any further conditions should be imposed that only such matters of difference can be referred to as are not covered by an interlocutory judgment of the court We would accordingly hold that it is open to the trial court to refer to arbitration any matters of difference between the parties to the suit provided they agree and apply at any time before the court pronounces its final judgment in the suit But this construction still leaves one question to be considered Had a final judgment been pronounced by the trial court in this case at the time when it passed the order of reference It had delivered a judgment and a preliminary decree had been drawn up A judgment delivered by a court in a partition suit which is followed by a preliminary decree cannot be said to be a final judgment in the suit Proceedings which parties may take pursuant to the preliminary decree are still a part of the suit and it is only with the passing of the final decree that the suit comes to an end As observed by the Privy Council in Jadu Nath Roy Ors vs Parameswar Mullick Ors 1 a partition suit in which a preliminary decree has been passed is still a pending suit with the result that the rights of parties who are added after the preliminary decree have to be adjusted at the time of the final decree This position is not disputed Therefore the fact that a preliminary decree had been drawn up in the present 1 1939 40 67 1 A I 233 case and it was based upon a judgment delivered by the court cannot exclude the application of section 21 The judgment which had been delivered by the court not a final judgment contemplated by section 21 The trial court would therefore have jurisdiction to make the order of reference There is however another fact which introduces a complication and that is the pendency of the three appeals before the High Court at the material time As we have already observed the three appeals which were pending before the High Court raised before that court matters in difference between the parties in the suit and to that extent the said matters of difference were really pending before the High Court and not before the trial court In such a case which is the court that has jurisdiction to make the order of reference There is no difficulty in holding that if the suit is pending in the trial court and a final judgment has not been pronounced by it it is the trial court which is competent to make the order of reference Similarly if a suit has been decided a final judgment has been delivered and a decree had been drawn up by the trial court and no appeal has been preferred against it the matter is concluded and there is no scope for applying section 21 at all On the other hand if a decree determining the suit has been drawn up by the trial court and it is taken to the appellate court during the pendency of the appeal it is the appellate court that is competent to act under section 21 These three cases do not present any difficulty but where a preliminary decree has been drawn up and an appeal has been filed against it the complication arises by reason of the fact that the disputes between the parties are legally pending before two courts Proceedings which would have to be taken between the parties in pur suance of and consequent upon the preliminary decree are pending before the trial court whereas matters in difference between the parties which are covered by the preliminary judgment and decree are pending before the appellate court In such a case it may perhaps be logically possible to take the view that 30 234 the arbitration in respect of the disputes in relation to proceedings subsequent to the preliminary decree can be directed by the trial court whereas arbitration in respect of all the matters concluded by the trial court s preliminary judgment which are pending before the appellate court can be made by the appellate court but such a logical approach is not wholly consistent with section 21 and rather than help to solve any difficulty it may in practice create unnecessary complications In most cases matters in dispute before the trial court in final decree proceedings are so inextricably connected with the matters in dispute in appeal that effective arbitration can be ordered only by one reference and not by two We are therefore inclined to hold that in a case of this kind where both the courts are possessed of the matters in dispute in part it would be open to either court to make an order of reference in respect of all the matters in dispute between the parties It is argued that on such a construction conflict of decisions may arise if two sets of arbitrators may be appointed We do not think that such a conflict is likely to occur If the parties move the trial court and obtain an order of reference they would inevitably ask for appropriate orders of withdrawal or stay of the appellate proceedings if on the other hand they obtain a similar order of reference from the appellate court they would for similar reasons apply for stay of the proceedings before the trial court In the present case proceedings subsequent to the preliminary decree were pending before the trial court and so we must hold that the trial court was competent to act under section 21 On that view the objection against the validity of the reference based on the provisions of section 21 cannot succeed We may now briefly refer to some of the decisions to which our attention was invited Before the Act was passed in 1940 the procedure for referring matters in dispute between the parties in pending suits was governed by the provisions of Sch 11 to the Code of Civil Procedure There appears to have been a consensus of judicial opinion in favour of the view that under Sch 11 paragraph 1 the appellate court could make 235 an order of reference in respect of matters in dispute between the parties in an appeal pending before it A note of dissent had however been struck by a Full Bench of the Calcutta High Court in Jugessueur Dey vs Kritartho Moyee Dossee 1 In that case the question for decision arose under the provisions of the Code of 1859 and the Full Bench held that an appellate court had no power even by consent of parties to refer a case for arbitration under the arbitration sections of Act VIII of 1859 which applied only to courts of original jurisdiction nor was such power conferred on an appellate court by section 37 of Act XXIII of 1861 One of the reasons which weighed with Couch C J who delivered the principal judgment of the Full Bench was that according to him neither reason nor convenience required that the appellate court should refer a suit to arbitration after the matter had been decided by the trial court Kemp J who concurred with the decision apprehended that if the parties are allowed to refer matters to arbitration after a case has been finally disposed of by a court of justice such a proceeding might tend to bring lower courts into contempt In our opinion this apprehension is not well founded Besides it is well known that when parties agree to refer the matters in dispute between them in suit to arbitration they desire that their disputes should be disposed of untrammelled by the rigid technicalities of the court procedure A search for a short out by means of such arbitration sometimes takes the parties on a very long route of litigation but that is another matter The Calcutta view was dissented from by the Madras High Court in Sangaralingam Pillai2 in somewhat emphatic words Entertaining all respect for the opinions of the learned judges of the High Court of Calcutta by whom the case of Jugesseur Dey 1 was decided observed the judgment we are not convinced by the reason given in the judgment for holding that an appellate court might not with consent of the parties refer the matters in dispute in the appeal to arbitration Having thus expressed their disapproval 1 2 Mad 236 of the Calcutta view the learned judges proceeded to add that in the case before them an order of reference was sought for under section 582 of the Code of 1877 and they held that under the said provision the appellate court is given the same powers and is required to perform the same functions as nearly as may be as the trial court The view thus expressed by the Madras High Court was subsequently accepted and approved by the Calcutta High Court in Bhugwan Das Marwari Anr vs Nund Lall Sein Anr 1 and Suresh Chunder Banerjee vs Ambica Churn Mookerjee 2 As we have already observed prior to the enactment of the Act there has been a longstanding judicial practice under which orders of reference have been passed by appellate courts in respect of matters in dispute between the parties in appeals pending before them The construction of section 21 has led to a divergence of judicial opinion In Abani Bhusan Chakravarty Ors vs Hem Chandra Chakravarty Or8 1 the Calcutta High Court has taken the view that the court as defined in the does not include an appellate court and consequently there is nothing in the Act which enables an appellate court to refer to arbitration matters in dispute between the parties This decision proceeds on the erroneous view that the it court in section 21 means only the court as defined ins 2c and that the considerations based on the powers of the appellate court prescribedby section 107 are foreign to the Act It also appears that the learned judgeswere disposed to think that if the matter in dispute between the parties at the appellate stage was referred to arbitration it might tend to bring the lower courts into contempt There is no doubt that a court cannot claim an inherent right to refer a matter in dispute between the parties to arbitration Before a matter can be thus referred to arbitration it must be shown that the court in question has been statutorily clothed with the power to make such an order and that would depend on the construction of section 21 of the Act The Calcutta High Court has construed the said section in 1 Cal 2 Cal 3 237 substance consistently with the view taken by it in the case of Jugesseur Dey 1 On the other hand the Patna High Court has taken a contrary view in Thakur Prasad vs Baleshwar Ahir Ors Jamuar J who delivered the judgment of the court has considered the decision of the Calcutta High Court in the case of Jugesseur Dey 1 and has dissented from it In the Allahabad High Court somewhat conflicting views had been expressed on different occasions but on the question as to whether the appellate court can refer a matter in dispute between the parties to arbitration or not and whether the suit includes an appeal the decision of the Full Bench of the Allahabad High Court in Moradhwaj vs Bhudar Das 3 seems to be on the same lines as that of the Patna High Court This Full Bench also considered the question about the applicability of section 21 to execution proceedings but with that aspect of the matter we are not concerned in the present appeal The Madras High Court has taken the same view in Subramannaya Bhatta vs Devadas Nayak Ors However none of these decisions had occasion to consider the question about the competence of both the trial court and the appellate court in cases where a preliminary decree has been passed and an appeal has been filed against the said decree It would thus appear that the majority of the Indian High Courts have construed the words 11 suit and 11 court used in section 21 liberally as including appellate proceedings and the appellate court respectively In the result we hold that the trial court was competent to make the reference and its validity is not open to any objection That leaves only one point to be considered It is urged by the appellants that the arbitrators acted illegally and without jurisdiction in directing the Appellants to pay to the respondent Rs 2682 6 0 by way of interest on the amounts specified in the award up to December 5 1944 and from that date at the rate of 5as per cent per mensem thus imposing on 1 3 AIR 1955 All 353 2 AIR 1954 Pat 106 4 AIR 1955 Mad 238 the appellants a total liability of Rs 236782 11 9The appellants have also been directed to pay future interest on the same amount at 8as per cent per mensem from the said date until the date of payment This argument is based solely on the observations made by Bose J who delivered the judgment of this Court in Seth Thawardas Pherumal vs The Union of India 1 It appears that in that case the claim awarded by the arbitrators was a claim for an unliquidated sum to which Interest Act of 1839 applied as interest was otherwise not payable by law in that kind of case Dealing with the contention that the arbitrators could not have awarded interest in such a case Bose J set out four conditions which must be satisfied before interest can be awarded under the Interest Act and observed that none of them was present in the case and so he concluded that the arbitrator had no power to allow interest simply because he thought that the payment was reasonable The alternative argument urged before this Court that interest could be awarded under section 34 of the Code of Civil Procedure 1908 was also repelled on the ground that the arbitrator is not a court within the meaning of the Code nor does the Code apply to arbitrators Mr Viswanatha Sastri relies upon these observations and contends that in no case can the arbitrators award interest It is open to doubt whether the observations on which Mr Viswanatha Sastri relies support or were intended to lay down such a broad and unqualified Proposition However we do not propose to pursue this matter any further because the present contention was not urged before the High Court It was no doubt taken as a ground of appeal but from the judgment it is clear that it was not urged at the time of hearing Under these circumstances we do not think we would be justified in allowing this point to be raised before us The result is that the conclusion reached by the High Court is right and so its order that a decree should be drawn in terms of the award must be confirmed Civil Appeal No 112 of 1955 accordingly fails and is dismissed with costs It is conceded that if the 1 239 principal appeal fails it would not be necessary to make any effective orders on the rest of the appeals in this group The said appeals also fail and are dismissed but there would be no order as to costs Appeals dismissed

A deed dated September 10 1931 described as a sale deed recited that the transferors were indebted and that to discharge the liability three items of immovable properties described in the deed and separately valued were conveyed in full ownership and that possession was delivered to the transferees The deed further provided inter alia 1 that if the transferors demanded reconveyable of any or all of the items of the properties within 5 years the transferees shall reconvey to them at their expense for the price mentioned in the deed 2 that if within four years and six months the transferees did not exercise the right of reconveyance as aforesaid and the transferees did not desire to retain all or any of the properties they had a right to get back the amount of consideration of the deed and return all the three or any of the properties in the condition in which by vis major Government action or any reason whatsoever they may be and 118 3that if the transferors failed to comply with the transferees request to take back the properties a breach of agreement of reconveyance rendering the transferors liable to pay damages shall be committed There was also a clause that the transferors shall lose the right of getting a reconveyance after the expiry of the period of 5 years On the same date as the deed of sale the transferors executed an agreement by which they undertook to pay the difference between the net rent to be recovered by the transferees from the properties and interest at the rate of nine per cent on the price till the date of reconveyance In a suit for redemption brought by the transferors on August 26 1943 on the footing that the deed dated September 10 1931 was A mort gage by conditional sale the transferees contended that by the transaction an absolute conveyance of the properties was intended and that the conveyance was subject to a condition of repurchase to be exercised within a period of five years from the date of the deed The evidence showed that the price paid for the properties under the deed was wholly inadequate Held that the question whether a transaction ostensibly of sale may be regarded as a mortgage is one of intention of the parties which has to be ascertained from the provisions of the deed viewed in the light of the surrounding circumstances In a sale coupled with an agreement to reconvey there is no relation of debtor and creditor nor is the price charged upon the property conveyed but the sale is subject to an obligation to retransfer the property within the period specified In a mortgage by conditional sale a relation of debtor and creditor is created the transfer being a security for the debt Oral evidence of intention is not admissible in interpreting the convenants of the deed but evidence to explain or even contradict the recitals as distinguished from the terms of the document may be given Evidence of contemporaneous conduct is admissible as a surrounding circumstance but evidence as to subsequent conduct of the parties is inadmissible Narasingerji Gyangerji vs Panuganti Parthasarathi and Others 1924 LR 51 IA 305 relied on Held further that in the present case the deed dated September 10 1931 on a true construction in the light of the surrounding circumstances showed that the transaction was one of mortgage enabling the transferors to redeem the properties

iminal Appeals Nos 157 and 158 of 1957 and 5 of 1958 Appeals by special leave from the judgment and order dated October 31 1955 of the Allahabad High Court in Criminal Reference Nos 28 29 and 30 of 1955 arising out of the judgment and order dated December 18 1954 of the Sessions Judge Deoria in Criminal Revisions Nos 7 8 and 9 of 1954 606 G C Mathur C P Lal and G N Dikshit for the appellant W section Barlingay and A G Ratnaparkhi for the respondents December 15 The Judgment of the Court was delivered by SHAH J The question which falls to be determined in this group of appeals is whether field workers ie Supervisors and Kamdars employed by a sugar factory to guide supervise and control the growth and supply of sugarcane for use in the sugar factory are employees of a Commercial Establishment with in the meaning of the United Provinces Shop and Commercial Establishment Act XXII of 1947 herein after referred to as the Act The Magistrate who tried the respondents for offences under section 27 of the Act held that the field workers were employees of a Commercial Establishment The High Court at Allahabad took a contrary view and the State of Uttar Pradesh has appealed to this court against the order of the High Court with special leave under article 136 of the Constitution The United Provinces Shop and Commercial Establishment Act 1947 was enacted to regulate the hours of employment and certain other conditions of employment in shops and commercial establishments Commercial Establishment is defined by section 2 cl 3 of the Act By section 12 of the Act provision is made for giving to the employees a weekly holiday besides holidays which may be granted under section 11 Section 13 provides for granting ordinary casual and sickness leave Section 26 requires the employer to maintain such registers and records and to display such notices as may be prescribed and section 27 penalises contraventions of the Act and the rules made thereunder The Lakshmi Devi Sugar Mills Ltd hereinafter referred to as the company owns a factory at Chhitauni for manufacturing sugar The three respondents are respectively the General Manager Assistant Manager and Secretary of the company The company employs certain classes of field workers to guide 607 supervise and control the growth and supply of sugarcane for use in the Factory The Deputy Chief inspector of Shops and Commercial Establishment Uttar Pradesh filed three complaints against the respondents in the court of the Judicial Magistrate Deoria charging them with contravention of the provisions of sections 12 13 and 26 of the Act in respect of certain field workers employed by the company for guiding supervising and controlling the growth and supply of sugarcane The respondents contended that the Act did not apply to those employees as they were workers within the meaning of the and accordingly exempt from the operation of the Act The Judicial Magistrate rejected the contention and convicted the respondents of contravention of section 26 of the Act and sentenced each of them to pay a fine of Rs 30 in each of the three cases Against the orders of conviction and sentence the respondents preferred revision applications to the Court of Session at Deoria The Sessions Judge disagreed with the view of the Trial Magistrate and referred the cases to the High Court at Allahabad recommending that the orders of conviction and sentence passed by the Trial Magistrate be set aside The High Court accepted the references and ordered that the respondents be acquitted By the definition of a Commercial Establishment in section 2 cl 3 of the Act the clerical and other establishments of a factory to whom the provisions of the Factories Act 1934 do not apply are included in the connotation of that expression It is true that the reference in the definition by which clerical and other establishments of factories are included is to the Factories Act of 1934 but by virtue of section 8 of the General Clauses Act X of 1897 it must be construed as a reference to the provisions of the Factories Act LXIII of 1948 which repealed the Factories Act of 1934 and re enacted it The contention raised by the State by special leave that since the repeal of the Factories Act 1934 in the definition of Commercial Establishment in section 2 cl 3 are included all clerical and other establishments of a factory without any exemption has therefore no force 608 The defines a worker by section 2 1 as meaning it a person employed directly or through any a person employed directly or thought any agency whether for wages or not in any manufacturing process or in cleaning any part of the machinery or premises used for a manufacturing process or in any other kind of work incidental to or connected with the manufacturing process or the subject of the manufacturing process and a factory is defined by section 2m as meaning any premises including the precints thereof wherein a specified number of workers on any day of the preceding twelve months is employed By the combined operation of these definitions persons employed in any manufacturing process or in cleaning any part of the machinery or part of the premises used for the manufacturing process or any other kind of work incidental to or connected with the manufacturing process or the subject of the manufacturing process are deemed to be workers in a factory By the use in section 2 1 of the of the expression I employed in any other kind of work incidental to or connected with the subject of manufacturing process not only workers directly connected in the manufacturing process but those who are connected with the subject of manufacturing process in a factory are included It is unnecessary for the purpose of this case to decide the precise meaning of the expression I subject of the manufacturing process in section 2 cl 1 because the diverse provisions of the are intended to benefit only workers employed in a factory ie in the precincts or premises of a factory It is difficult to hold that field workers who are employed in guiding supervising and controlling the growth and supply of sugarcane to be used in the factory are employed either in the precincts of the factory or in the premises of the factory and if these workers are not employed in a factory the provisions of the do not apply to them and they evidently fall within the definition of Commercial Establishment The High Court was of the view that the Supervisors and Kamdars connected with the subject of 609 manufacturing process namely sugarcane were workers within the meaning of the and accordingly they were excluded from the definition of Commercial Establishment under the Act However even if the Supervisors and Kamdars were employed in any other kind of work connected with the subject of manufacturing process unless they were employed in the factory the provisions of the do not apply to them there is no dispute that they are employees of a Commercial Establishment within the meaning of the Act The High Court was therefore in error in acquitting the respondents of the offences of which they were convicted by the Trial Magistrate The orders of acquittal passed by the High Court are set aside and the orders of conviction and sentence passed by the Trial Magistrate are restored In view of the order of this Court dated October 1 1956 made at the time of granting special leave the respondents are entitled to their costs of hearing in this court Appeal allowed

The respondent mills a registered dealer under the Bihar Sales Tax Act 1947 Act 111 of 1947 was carrying on business of manufacture and sale of gunny bags hessian and other jute products at Katihar During the period April 1 1950 to March 31 1951 it sold and despatched its wares worth about Rs 9224386 1 6 to dealers outside the State and realised a sum of Rs 211222 9 6 as sales tax from them In assessing the sales tax payable by the said respondent for the relevant period the Superintendent of Sales Tax Purnea held that the said amount of sales tax had been realised in contravention of section 14A of the Act read with r 19 of the Bihar Sales Tax Rules and directed its forfeiture under the proviso to that section The respondent challenged the validity of the said order under articles 226 and 227 of the Constitution The High Court held that the proviso to section 14A of the Act was ultra vires the State Legislature as it violated articles 201 and 312 of the Constitution and set aside the order of forfeiture and quashed the proceedings under section 14A of the Act The State of Bihar appealed to this Court It was urged by way of preliminary objection on behalf of the respondent that since the proviso to section 14A of the Act had no application to the facts of the case there was no occasion to decide its constitutional validity The contention of the appellint was that the proviso did apply to the respondent inasmuch 332 as he had contravened the conditions and restrictions imposed by the proviso to r 19 The question for determination therefore was whether the said respondent could be said to have realised any amount by way of tax in respect of such part of its turn over as was allowed to be deducted from his gross turn over for the determination of his taxable turn over under the Act or the rules as contemplated by the later part of the said proviso Held that the preliminary objection must prevail Held further that before the penalty of forfeiture could be imposed upon a dealer under the proviso to section 14A of the Bihar Sales tax Act 1947 it had to be shown that he had acted contrary to the conditions and restrictions prescribed by the Rules and it was not enough to show that the collection of the sales tax made by him was otherwise illegal or improper The contravention of the statutory provisions contained in section 14A or of the Rules prescribing conditions and restrictions in that behalf alone could form the basis of the imposition of the penalty of forfeiture prescribed by the said proviso With the insertion of section 33 into the Act with retrospective operation prohibiting the imposition of the tax on sales taking place outside the State and in view of the decision of this Court in State of Bombaay vs The United Motors India Ltd the proviso to r 19 must be construed on the basis that the sales in question were outside the scope of the Act and no tax could be imposed on them It could not therefore be said that that part of the respondent s turnover which was in question was an allowable deduction within the meaning of the said proviso Such allowable deductions as are contemplated by the proviso are clearly based on the provisions of sections 6 7 and 8 of the Act as is quite clear from the Explanation to section 5 of the Act State of Bombay Another vs The United Motors India Ltd An allowable deduction under the said proviso was not the same thing as exclusion of a part of the turn over on the basis of section 331a1 of the Act It stands on an entirely different footing Transactions which fall within the said section are in substance outside the Act and no tax can be imposed on them The transaction in question did not therefore fall within the proviso to r19 and the proviso to section 14A was not attracted and the order of forfeiture passed against the respondent was unjustified and illegal

9 of 1957 Petition under Article 32 of the Constitution of India for enforcement of fundamental rights B D Sharma for the petitioner C K Daphtary Solicitar General of India R H Dhebar and T M Sen for the respondents December 2 The Judgment of the Court was delivered by KAPUR J The petitioner was a wholesale and retail dealer in tobacco at Banaras and also owned a private bonded warehouse for tobacco and held licences for the same In this petition he challenges the legality of certain orders passed by the Collector of Excise Allahabad which on appeal were confirmed and revisions against those orders were dismissed by the Central Government The petitioner s warehouse was checked by Inspector Das who on finding some irregularity sealed the warehouse on December 8 1953 and subsequently took possession of all the registers and stock cards On December221953 11 12 bags of kandi ie stems of tobacco which were found in the petitioner s warehouse were removed from the warehouse by the Inspector and stored in some other 364 place Against those orders the petitioner made certain representations to the Collector and some correspondence passed On June 15 1954 the Collector Central Excise issued a notice to the petitioner to show cause why a penalty should not be imposed on him for the contravention of Rules 151Cand 226 of the Central Excise Rules 1944 and why the bags of kandi should not be confiscatted The petitioner showed cause the Collector heard the petitioner who had also filed written arguments Finding the charges against the petitioner proved the Collector ordered confiscation of the bags of kandi imposed a fine of Rs 150 and the duty leviable thereon in lieu of confiscation He further imposed a penalty of Rs 2000 under rr 151C and 226 of the Central Excise Rules The appeal taken to the Central Board of Revenue was dismissed as the petitioner refused to deposit the penalty of Rs 2000 and a revision to the Central Board of Revenue was also dismissed for the same reason This is one of the orders which is challenged by the petitioner On July 29 1954 the Collector called upon the petitioner to produce another surety as the previous surety Mohammad Satar was not prepared to act as such The petitioner states that he thereupon furnished two bonds in Form B 4 and B 5 for Rs 7000 and Rs 10000 respectively As there was a sum of Rs 15 263 8 0 due from him the petitioner as Excise duty 373 Mds of tobaco were attached by the Excise Department and sold by auction for Rs 6878 5 0 thus leaving a balance of Rs 8385 3 0 As the Department made demands for the recovery of this balance of duty the petitioner filed a civil suit in the court of the First Additional Civil Judge Banaras who issued an ad interim injunction against the Department restraining it to recover the amount On January 25 1956 the Superintendent of Excise called upon the petitioner to deposit a cash security of Rs 10000 otherwise his licence would be treated as cancelled under r 1811 of the Central Excise Rules The petitioner demurred to this and as the outstanding amount of excise duty was not paid the Deputy 365 Collector ordered on February 13 1956 that till the deposit was made the petitioner s licence shall remain inoperative The petitioner took an appeal against this order to the Central Board of Revenue which was dissmissed The petitioner also filed a petition under article 226 in the Punjab High Court which was also dismissed and a revision against the order of the Deputy Collector making the licence inoperative was dismissed by the Central Board of Revenue on December 20 1956 This is the second order which is challenged The present petition was filed on January 21 1957 in which the petitioner prayed 1 that the provisions of sections 6 8 9 and 10 of the of 1944 which for the sake of convenience will hereinafter be termed the Act and the rr 140 to 148 150 171 to 181 215 and 226 of the Central Excise Rules made under the Act be declared ultra vires and to issue a writ of certiorari or any other writ to quash the orders passed by the Collector as confirmed on appeal and revision by the Central Board of Revenue and the Central Government respectively These orders have already been referred to 2 For a writ of mandamus directing the respondents not to interfere with the fundamental right of the petitioner to carry on trade in tobacco or to store tobacco 3 directing the respondents to return the goods confiscated by them For the petitioner three points were raised 1 that sections 6 and 8 of the Act and the Rules made thereunder were beyond the legislative competence of the Central legislature under the Constitution Act of 1935 2 even if they were within the legislative competence they impose excessive and unreasonable restraint on the fundamental right of the petitioner to trade in tobacco and they were not in the interest of the general public and therefore were not saved by article 196 3 orders passed were ultra vires the Act and the Rules made thereunder Before we proceed to consider the arguments raised on behalf of the petitioner it is necessary to examine 47 366 the scheme of the Act Its scope as given in the preamble is to consolidate and amend the law relating to central duties of excise on goods manufactured or produced in British India and to salt Section 2 of the Act gives the definitions Chapter 11 provides for levy and collection of duty The two main sections ie 6 and 8 fall under this Chapter Section 6 provides for certain operations to be subject to licences and when quoted it runs as follows section 6 The Central Government may by notification in the official Gazette provide that from such date as may be specified in the notification no person shall except under the authority and in accordance with the terms and conditions of a licence granted under this Act engage in a the production or manufacture or any process of the production or manufacture of any specified excisable goods or of saltpetre or of any specified component parts or ingredients of such goods or of specified containers of such goods or b the wholesale purchase or sale whether on his own account or as a broker or commission agent or the storage of any excisable goods specified in this behalf in part A of the Second Schedule Section 8 imposes restriction on possession of excisable goods It is as follows From such date as may be specified in this behalf by the Central Government by notification in the official Gazette no person shall except as provided by rules made under this Act have in his possession any excisable goods specified in this behalf in Part B of the Second Schedule in excess of such quantity as may be prescribed for the purpose of this section as the maximum amount of such goods or of any variety of such goods which may be possessed at any one time by such a person Section 9 deals with offences and penalties Section 10 gives to the court the power to order forfeiture Section 11 makes provision for recovery of duties due to 367 Government Chapter VI deals with adjudication of confiscation and penalties specifying the powers of the Collector of Central Excise and appeals against such orders and revision to the Central Government Chapter VII contains supplementary provisions section 37 therein empowers the Central Government to make rules and in the Schedule the rates or duties leviable on each class of goods are given and tobacco falls in item 9 The question is as to whether the Act falls within item No 45 of List 1 read with section 100 of the Government of India Act It was contended on behalf of the petitioner that even though the imposition of excise duties may fall under item No 45 of List 1 of the Constitution Act it is a serious encroachment on the territory covered by items 27 and 29 of List 11 of that Act The argument raised was that although the Act imposes duty of excise within item 45 of List 1 and that was one of its objects it also regulates trade or commerce and therefore falls within the above mentioned items of List 11 and would to that extent be ultra vires It was contended that the pith and substance of a statute may cover two fields and in support re lied upon the following observation of Mahajan CJ in Cooverjee B Bharucha vs The Excise Commissioner and The Chief Commissioner Ajmer Ors 1 The pith and substance of the regulation is that it raises excise revenue by imposing duties on liquor and intoxicating drugs by different methods and it also regulates the import export transport manufacture sale and possession of intoxicating liquors But that case did not raise the question of legislative competence the point for decision was whether the statute there impugned infringed the right to carry on trade in liquor and also whether the auction money was a fee or a tax It was in that connection that the observation above quoted was made It was also argued that if the purpose and object of the Act is levying of duty of excise then it could not provide for regulation of trade and reliance was 1 877 882 368 placed on King vs Barger 1 where by a majority it was held that the question in substance was not an exercise of the power of taxation and if it was the statute would be invalid as being in contravention of section 55 of the Constitution Act of Australia The minority however was of the opinion that the reserved powers of the States are those which remain after full effect was given to the powers granted to the Commonwealth In support of the argument that the Act did not only relate to levying of excise duties but also regulated trade reference was made to rr 174 to 182 of the Central Excise Rules which relate to licensing Particular reliance was placed on r 1762 imposing a licence fee which in the case of tobacco is as much as Rs 100 Reference was also made to r 181 which deals with revocation and suspension of licences and empowers the Licensing Department to revoke or suspend a licence under certain circumstances The rule is as follows R 181 1 Any licence granted under these Rules may be revoked or suspended by the licensing authority if the holder or any person in his employ is found to have committed a breach of the conditions thereof or any of the provisions of the Act or these Rules or has been convicted of an offence under section 161 read with section 109 or with section 116 of the Indian Penal Code 2 3 Counsel then drew our attention to r 182 which relates to matches Only but which places limitation on the issue of licences for the manufacture of matches The next set of Rules which were relied upon were rr 140 to 148 in regard to warehousing and then our attention was drawn to rr 210 to 215 relating to penalties confiscation and appeals In regard to the latter set of Rules it was submitted that they laid down no procedure and did not make any provision for issuing of notice to licensees or hearing them or their witnesses before imposing penalties From all this 1 369 the conclusion which counsel wished us to draw was that the Act read with Rules shows that the pith and substance is not merely levying an excise duty but the possession of and trade in tobacco was also regulated and therefore the subject matter of the Act did not fall exclusively in the legislative field covered by List 1 but it trenched upon the provincial field of legislation and must be held to fall under List 11 also In every case where the legislative competence of a legislature in regard to a particular enactment is challenged with reference to the entries in the various lists it is necessary to examine the pith and substance of the Act and if the matter comes substantially within an item in the Central List it is not deemed to come within an entry in the Provincial list even though the classes of subjects looked at singly overlap in many respects It is within the competence of the Central legislature to provide for matters which may otherwise fall within the competence of the Provincial legislature if they are necessarily incidental to effective legislation by the Central legislature on a subject of legislation expressly within its power Attorney General for Canada vs Attorney General for British Columbia 1 Attorney General for Canada vs Attorney General for Quebec 2 In Gallagher vs Lynn 3 it was held that if the true nature and character of an Act is to protect the health of the inhabitants then even though it may incidentally affect trade it is not enacted in respect of trade Moreover it is a fundamental principle of constitutional law that everything necessary to the exercise of a power is included in the grant of the power Edward Mills Co Ltd vs The State of Ajmer 4 The item which falls for consideration in the present case is No 45 of List 1 which is as follows Duties of excise on tobacco and other good manufactured or produced in India except a alcoholic liquors for human consumption b opium Indian hemp and other narcotic drugs and narcotics non narcotic drugs 1 118 2 43 3 4 749 370 c medical and toilet preparations containing alcohol or any substance included in sub paragraph b of this entry The other items which have to be considered are items Nos 27 29 and 31 of List 11 which are as follows Item 27 Trade and commerce within the Province markets and fairs money lending and money lenders Item 29 Production supply and distribution of goods development of industries subject to the provisions in List 1 with respect to the development of certain industries under Federal control The question for decision is whether the Act in question is a law with respect to the matters enumerated in item 45 of List 1 or to the matters enumerated in item 27 and 29 of List 11 In other words does it in pith and substance relate to duties of excise on tobacco as contained in item 45 or it falls within the boundaries of items 27 and 29 of the provincial list and if it falls within the former is its validity affected by its incidental trespass into the territory reserved for provincial legislation In the interpretation of the scope of these items the widest possible amplitude must be given to the words used and each general word must be held to extend to ancillary or subsidiary matters which can fairly be said to be comprehended in it United Provinces vs Atiqa Begum Ors 1 Navinchandra Mafatlal vs The Commissioner of Incometax 2 The State of Madras vs Gannon Dunkerley Co 5 In Subramanyan Chettiar vs Muthuswamy Goundan 4 Sir Maurice Gwyer CJ dealing with items in the Lists observed It must inevitably happen from time to time that legislation though purporting to deal with a subject in one list touches also on a subject in another list and the different provisions of the enactment may be so closely intertwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because 1 2 1955 1 SCR 829 833 836 3 391 393 4 201 371 the Legislature enacting them may appear to have legislated in a forbidden sphere We agree as did the Privy Council in Prafulla Kumar Mukherjee and Ors vs Bank of Commerce Ltd 1 and this Court did in State of Rajasihan vs G Chawla 2 that this passage correctly describes the ground on which the rule is founded and in our opinion it is a correct method of interpreting the words of the various items in the Lists read with section 100 of the Constitution Act Hidayatullah J in State of Rajasthan vs G Chawla2 said at p 546 It is equally well settled that the power to legislate on a topic of legislation carries with it the power to legislate on an ancillary matter which can be said to be reasonably included in the power given We now proceed to determine the true nature and character or the pith and substance of the Act It is a fiscal measure to levy and realise duty on tobacco The method of realising duty must be left to the wisdom of the legislature taking each individual trade and its peculiarities and difficulties which arise in that matter Various provisions of the Act and the Rules show that the authorities are on the track of the movement of tobacco from the time it is grown to the time it is manufactured and sold in the market and the various provisions of the Act and the Rules made thereunder have been considered necessary for effectuating the purpose of the Act Rules made under the Act also are directed for achieving the same objective Chapter IV in the Rules deals with unmanufactured products Rule 15 therein requires the growers to make a declaration in respect of all land upon which tobacco is to be grown Rule 17 which requires curing to be done on the declared and approved premises is also a step in the same direction Under Rule 18 a security can be demanded from a grower and curer Rules 19 20 and 21 deal with liability to duty exemption from duty of certain kinds of tobacco for personal use books to be kept by growers and curers and the 1 1947 LR 74 IA 23 41 2 372 manner of keeping the entries in the books Rule 31 deals with transport of tobacco from thegrower to the premises of a curer and from the premises of a curer to a public or a private warehouse Chapter V of the rules deals with manufactured tobacco and how that is to be kept in warehouses Similarly at every stage whether the tobacco is in unmanufactured stage or manufactured stage provisions have been made in the Rules to keep a watch over the movement of tobacco All these Rules show that the object of the Act is to make collection of excise duties on tobacco effective and the levying of fees is only a collection of money for the upkeep of supervision over the movement of tobacco for the purpose of excise duty The system of licensing of bonded warehouses was always considered to be a part of effective control of evasion of tax in England and Parliament must be deemed to have contemplated the inclusion of this power Besides the levying of licence fees is itself a form of taxation Cooverji B Bharucha vs The Excise Commissioner of Ajmer 1 and would in this case be within the legislative competence of the Central legislature whose powers of taxation should not be restricted so as to exclude the raising of revenue by imposing licensing fees In the State of Madras vs Gannon Dunkerley Co 2 the following passage from the Broken Hill South Ltd vs Commmissioner of Taxation NS W 3 In any investigation of the constitutional powers of these great Dominion legislatures it is not proper that a Court should deny to such a legislature the right of solving taxation problems unfettered by a priori legal categories which often derive from the exercise of legislative power in the same constitutional writ was quoted with approval by Venkatarama Aiyar J and if it is only a fee its constitutionality cannot be challenged because of item 69 relating to fees on matters in List 1 Counsel for the petitioner relied upon r 181 This rule may have an indirect effect of depriving an owner of a bonded warehouse from the 1 877 822 2 391 393 3 379 373 privilege of keeping such a warehouse but that does not mean that the object and purpose of the Act is not imposition collection and realisation of duty of excise This rule is a means of making the realisation of duty effective and necessarily incidental to effectual legislation for collection of duties Attorney General for Canada vs Attorney General for British Columbia 1 Looking at the scheme of the Act its object and purpose its true nature and character and the pith and substance the conclusion is inevitable that the Act was within the legislative competence of the Central legislature and although there may be certain matters otherwise within the legislative competence of the provincial legislature they are necessarily incidental to effective legislation by the Central legislature The various provisions of the Act and the Rules made thereunder were in our opinion essentially connected with the levying collection of excise duty and in its true nature and character the Act remains one that falls under item 45 of List 1 and the incidental trenching upon the provincial field of items 27 or 29 would not affect its constitutionality because the extent of invasion of the provincial field may be a circumstance to determine the true pith and substance but once that question is determined the Act in our opinion would fall on the side of Central field and not that of the provincial field Prafulla Kumar Mukherjee vs Bank of Commerce Ltd It was then contended that the restrictions imposed were unreasonable and therefore not saved by article 196 The basis of this argument was that there is no procedure laid down in the provisions for levying penalties nor any provision made for notice or the taking of evidence and power of confiscation was given to persons who could not be termed unbiased If the tribunal is to act judicially it must confirm to the principles of natural justice of audi alteram partem and there is no dispute that in the instant case there was no breach of this rule Not only this there is a right of appeal and a revision is also provided and both these remedies the petitioner availed himself of The 1 118 48 2 1947 LR 74 IA 23 41 374 argument of unreasonable restriction because of this ground must also fail Lastly it was contended that the two main orders passed were ultra vires because in the first case the petitioner was asked to deposit the penalty before his appeal or revision could be heard and reliance was placed on Himmatlal Harilal Mehta vs The State of Madhya Pradesh 1 But it is difficult to see how that case applies There was no illegal imposition on the petitioner nor is it shown that anything was threatened to be realised without the authority of law In regard to the second order Mohammad Satar had ceased to be the petitioner s surety and therefore in terms of the proviso to r 140 of the Excise Rules which was as follows Provided that in the event of death insolvency or inefficiency of the surety or where the amount of the bond is inadequate the collector may in his discretion demand a fresh bond and may if the security furnished for a bond is not adequate demand additional security The Collector was acting within his powers if he asked for the deposit of cash security of Rs 10000 This is not a matter with which we can in the circumstances of this case interfere It was also urged that the orders passed were mala fide but no such allegation was made in the petition nor is it shown as to why the orders are mala fide In our opinion this petition is without substance and is therefore dismissed with costs Petition dismissed

In a suit for partition of the joint family properties filed by the respondent against his brother and his sons appellants 1 to 5 respectively the latter while admitting the relationship of the respondent and his half share to the family properties pleaded inter alia that the court had no jurisdiction to divide the immoveable properties situated in Burma and in the Indian State of Pudukottai The trial court passed a preliminary decree excluding from its operation the aforesaid immoveable properties Against the preliminary decree appeals were preferred before the High Court by the several parties on various grounds but in his appeal the respondent did not challenge the finding of the trial court that it had no jurisdiction to deal with foreign immoveable properties During the pendency of the appeals on the joint application made by the parties the trial court made an order referring for determination by the two arbitrators named by them all the matters in dispute in the suit and all matters and proceedings connected therewith In due course the arbitrators gave an award which was then filed in the trial court As regards immoveable properties in Pudukottai the award recited that since the parties had separated and the properties in suit before the arbitrators had been actually divided by metes and bounds the two branches shall enjoy the Pudukottai properties in equal halves while with reference to the properties in Burma the arbitrators asked the parties to hold the documents of title half and half for safe custody and added that when the parties decided to divide the properties all the documents would have to be 27 210 brought together and a partition made according to law The appellant challenged the validity of the award on the grounds inter alia 1 that the reference and the award dealt with immoveable properties in Burma and Pudukottai and so they were invalid and 2 that the trial court was not competent to make the order of reference under section 21 of the Indian Held 1 that the reference and the award could not be challenged on the ground that they purported to deal with foreign immoveable properties because a at the time when the matters in dispute were referred to arbitration it was on the basis of the finding of the trial court that the court had no jurisdiction to deal with foreign immoveable properties and b the award did not divide the said properties or declare their shares in them but merely recited the fact that the parties having become divided and accepted a half share in each of the branches they would hold and enjoy the properties half and half There is a distinction between a mere recital of a fact and something which in itself creates a title Bageshwari Charan Singh vs Jagarnath Kuari 1932 LR 53 IA 130 relied on 2 that the words suit and court in section 20 of the Indian include appellate court proceedings and appellate court respectively Abani Bhusan Chakravarthy and Others vs Hem Chandra Chakravarthy and Others disapproved Thakur Prasad vs Baleshwar Ahir and Others AIR 1954 Pat 106 Moradhwaj vs Bhudar Das AIR 1955 All 353 and Subramannaya Bhatta vs Devadas Nayak and Others AIR 1955 Mad 693 approved 3that the word judgment in section 21 of the Act means a judgmentwhich finally decides all matters in controversy in the suit and does not refer to the various interlocutory orders and judgments that may be passed during the hearing of the suit 4 that a judgment delivered by a court in a partition suit which is followed by a preliminary decree is not a final judgment in the suit and that a court after a preliminary decree has been passed has jurisdiction to make an order of reference under section 21 of the Act Jadu Nath Roy and Others vs Paramesway Mullick and Others 1939 LR 67 IA 11 relied on 5 that where a preliminary decree has been drawn up and an appeal has been filed against it both the trial court and the appellate court are possessed of the matters in dispute in part and it would be open to either court to make an order of reference in respect of all the matters in dispute between the 211 parties that as in the present case proceedings subsequent to the preliminary decree were pending before the trial court the latter was competent to act under section 21 of the Act

159 of 1956 Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights N C Chatterjee and D N Mukherjee for the petitioners Mahabir Prasad Advocate General for the State of Bihar Bajrang Sahai and R C Prasad for the respondents December 15 The Judgment of the Court was delivered by SUBBA RAO J This petition under article 32 of the Constitution is filed by the Mineral Development Limited against the State of Bihar and another for the issue of a writ of certiorari to quash the order of the Government of Bihar dated September 7 1955 cancelling the petitioner s licence and for the issue of a writ of mandamus directing them to forbear from giving effect to the said order of cancellation One Raja Bahadur Kamakshya Narain Singh hereinafter called the proprietor was the proprietor of Ramgarh and Serampur estates in the district of 612 Hazaribagh in the State of Bihar On December 291947 the said proprietor executed a mining lease in favour of the Mineral Development Limited herein after called the Company for all minerals in respect of 3026 villages for a period of 999 years On or about January 3 1951 the Deputy Commissioner Hazaribagh granted the Company a licence bearing No HL 261 H in form B under section 6 of the Bihar Mica Act 1947 hereinafter called the Act for mining mica The licence was renewed from year to year by the relevant authority and the last of the renewals expired on December 31 1954 The Secretary to the Government of Bihar in the Revenue Department issued a notice dated March 7 1953 to the Company charging it with violations of sections 10 12 and 14 of the Act and calling upon it to show cause within 15 days of the receipt of the said notice why action should not be taken to cancel the licence issued in favour of the Company By letter dated March 20 1953 the Company requested the Secretary to the Government Revenue Department Bihar to furnish the Company with particulars of the alleged violations of the provisions of the Act After a reminder was sent the Company was furnished by the Government with the particulars by its letter dated May 1 1953 On or about May 17 1953 the Company sent a written representation to the Government denying the allegations made against it and explaining how the Company complied with the provisions of the Act After this letter no further correspondence passed between the Government and the Company But on September 7 1955 ie two years after the said representation the Government issued a notification cancelling the Company s licence No 261 H of 1951 The result of this notification was that the Company was prevented from carrying on the mining operations in large tracts of land it had taken on lease from the said proprietor The Company in its petition has stated that it had invested a large sum of about Rs 16 lakhs to obtain the mining lease and spent a considerable sum in prospecting and developing the mines that by the arbitrary act of the Government it could not work the 613 mines that a large number of labourers had been thrown out of employment and that in the result it was being put to heavy loss It has filed the present petition for the reliefs mentioned already for the reasons among others that the Government acted illegally and with mala fldes and infringed the fundamental rights of the petitioner under article 191 sub cls f and g of the Constitution The first respondent to the petition is the State of Bihar and the second respondent is the Additional Secretary to the Government of Bihar in the Revenue Department They filed a counter denying the allegations made against the Government and particularly stated that they had acted within their rights and cancelled the licence in strict compliance with the provisions of the Act The arguments of Mr Chatterjee learned Counsel for the petitioner may be broadly formulated under the following four heads i The Bihar Mica Act 1947 as amended by the Bihar Mica Amendment Act 1949 is ultra vires for want of constitutional competence ii the provisions of the Act are repugnant to the provisions of the Central Act 53 of 1948 and therefore to the extent of such repugnancy the former Act should yield to the latter Act with the result that the licensing provisions under the Act ceased to have any legal effect iii the petitioner has the fundamental rights under article 191f and g of the Constitution to acquire hold and dispose of his property and to carry on any occupation trade or business in respect thereof and that the provisions of section 251c of the Act operate as an unreasonable restriction on the said rights and are therefore void and iv even if the said section did not infringe his fundamental rights the order of the Government in cancelling the lease without affording him reasonable opportunity to show cause within the meaning of the second proviso to that section infringed his fundamental right The first two contentions need not detain us for the petition may be disposed of on the basis of the last two contentions 614 The first question therefore is whether the provisions of section 25 of the Act infringe the fundamental rights of the petitioner under sub cls f and g of article 191 of the Constitution The said provisions of the Constitution read Article 19 1 All citizens shall have the right f to acquire hold and dispose of property and g to practise any profession or to carry on any occupation trade or business Under sub cls f and g of article 191 every citizen has the right to acquire hold and dispose of property and to practise any profession or to carry on any occupation trade or business But cls 5 and 6 of article 19 authorize the State to make a law imposing restrictions in the interest of the general public but the restrictions so imposed must be reasonable The concept of reasonableness has been clearly explained by Patanjali Sastri CJ in State of Madras vs V G Row1 as under It is important in this context to bear in mind that the test of reasonableness wherever prescribed should be applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases The nature of the right alleged to have been infringed the underlying purpose of the restrictions imposed the extent and urgency of the evil sought to be remedied thereby the disproportion of the imposition the prevailing conditions at the time should all enter into the judicial verdict These observations if we may say so with great respect lay down the correct principle It follows that it is the duty of this Court to decide having regard to the aforesaid considerations and such others whether a particular statute satisfies the objective test of reasonableness While not disputing the general principle the learned Counsel for the petitioner strongly relied upon the decision of this Court in Thakur Raghubir Singh vs Court of Wards Ajmer 2 in support of his contentions The facts in that case 1 607 2 1055 615 weres 112 of the Ajmer Tenancy and Land Records Act XLII of 1950 provided that if a landlord habitually infringes the rights of a tenant under this Act he shall notwithstanding anything in section 7 of the Ajmer Government Wards Regulation 1888 1 of 1888 be deemed to be a landlord who is disqualified to manage his own property within the meaning of section 6 of the said Regulation and his property shall be liable to be taken under the superintendence of the Court of Wards The determination of the question whether a landlord bad habit ually infringed the rights of his tenants was left to the Court of Wards The petitioner whose estate was taken over by the Court of Wards questioned the validity of the power conferred on the Court of Wards This Court held that the said section was void as being an unreasonable restriction on the rights in property as the restriction made the enjoyment of that right depend upon the mere discretion of the executive Mahajan J as he then was observed When a law deprives a person of possession of his property for an indefinite period of time merely on the subjective determination of an executive officer such a law can on no construction of the word reasonable be described as coming within that expression because it completely negatives the fundamental right by making its enjoyment depend on the mere pleasure and discretion of the executive the citizen affected having no right to have recourse for establishing the contrary in a civil court In that case the combined operation of section 112 of Act XLII of 1950 and the provision s of Regulation 1of 1888 was that the Court of Wards could in its own discretion and on its own subjective determination assume superintendence of the property of a landlord who habitually infringed the rights of his tenants The Act also did not provide any machinery for determining the question whether a certain landlord was a person who habitually infringed the rights of his tenants Even the condition precedent for the assumption of superintendence by the Court 616 of Wards viz the previous sanction of the Chief Commissioner was also a matter entirely resting on his discretion It will be seen that under that Act the entire question was left to the unbridled discretion of the executive without providing for any machinery to ascertain the grounds for its action That decision cannot apply to the facts of the present case as they differ in material respects from those considered by this court in that decision The short question therefore is whether section 25 of the Act places unreasonable restrictions on the petioner s fundamental rights under article 191f and g of the Constitution It is conceded that the State can make a law imposing restrictions in the interest of the public on citizens in respect of their enjoyment of mineral rights but the complaint is that the law which enables the State in its uncontrolled discretion to prevent the owner or the lessee of such a field from enjoying his land or leasehold interest or to carry on his mining operations permanently or for an indefinite period is unreasonable So stated there is plausibility in the argument But let us look at the law more closely to ascertain whether it suffers from such a vice The Act was passed in the year 1947 and was amended from time to time The declared object of the Act is to regulate the possession and transport of and trading in mica in the Province of Bihar It was necessitated presumably because of the scarcity of mica and its importance in the industrial field and for that reason for regulating home consumption and foreign export The learned Counsel for the petitioner did not controvert the position and indeed conceded that reasonable restrictions can legitimately be imposed on the mining operations of the petitioner Section 4 of the Act imposes a prohibition on the possession of and trading in mica without licence proprietor s certificate or digger s permit Sections 5 and 6 prescribe a machinery for granting proprietor s certificate miner s or dealer s licence Sections 10 to 12 define the duties of licensees and registered proprietors in the matter of keeping accounts and producing them for inspection Section 14 prohibits 617 the removal of mica from one place to another without a pass Sections 17 19 and 21A impose penalties for the infringement of the provisions of the Act an the rules made thereunder Section 22 to 24 deal with miscellaneous matters such as the power Of a police officer to arrest without warrant persons guilty of an offence under this Act to search seize and detain mica removed without a pass etc Then comes section 25 As the main argument of the learned Counsel turns upon the provisions of section 25 it is necessary to read the entire section which is as follows Section 25 1 The State Government may cancel the licence or proprietor s certificate of any licensee or registered proprietor who a allows his licence or proprietors certificate as the case may be to be used on behalf of any other person as authority to buy or have in his possession or sell mica extracted from a mica mine or from a mica dump or b being a person to whom a miner s licence has been granted extracts mica from a mine the particulars of which are not endorsed on his licence or c is guilty of repeated failure to comply with any of the other provisions of this Act or rules made thereunder or d is convicted of an offence under Chapter XVII of the Indian Penal Code committed in respect of mica Provided that a licence or a proprietor s certificate shall not be cancelled solely by reason of conviction from which the licensee or the registered proprietor has no right of appeal or revision Provided further that a licence or a proprietor s certificate shall not be cancelled unless the licensee or the proprietor has been furnished with the grounds for such cancellation and has been afforded reasonable opportunity to show cause why his licence shall not be cancelled 2 A fresh licence or proprietor s certificate shall not without the previous sanction of the State Government be granted to any licensee or registered 79 618 proprietor whose licence or proprietor s certificate has been cancelled under this section This section embodies the severest punishment that can be imposed under the Act on a licensee or a proprietor It enables the State Government to cancel the licence The power is entrusted to the highest executive in the State which ordinarily can be relied upon to discharge its duties honestly impartially and in the interest of the public without any extraneous considerations The section provides clearly ascertainable standards for the State Government to apply to the facts of each case Clauses a b c and d of section 251 describe with sufficient particularity the nature of the defaults to be committed and the abuses to be guilty of by the licensee in order to attract the penal provisions Clause c with which we are directly concerned embodies the last step that can be resorted to by the State Government to eliminate the recalcitrant operator from the field of mining industry if only he is guilty of repeated failures to comply with any of the provisions of the Act or the rules made thereunder other than those mentioned in the other clauses of the section The discretion of the State Government under cl c of section 251 is hedged in by two important restrictions viz i the failure to comply with the provisions of the Act or the rules made thereunder should be a repeated failure and not a mere sporadic one ie the defaulter must be a recalcitrant one ii before cancelling the licence the State Government should afford reasonable opportunity to the licensee to show cause why his licence should not be cancelled That apart the cancellation of the licence has not the effect of barring the licensee or the proprietor from applying for a fresh licence The only condition imposed is that a fresh licence shall not be granted to him without the previous sanction of the State Government In the foregoing circumstances can it be said that the section imposes an unreasonable restriction on the petitioner s fundamental rights The statutory conditions subject to which the licence is given are obviously reasonable 619 and necessary for regulating the mining industry The provisions of the Act as we have already pointed out were only designed to compel a licensee to keep accounts produce them before the authorities when required to prevent him from removing mica from the fields without passes and to impose penalties for contravening the rules The only vice is said to lie in the power to cancel a licence conferred on the State Government under section 25 of the Act The power given to the State Government is only to achieve the object of the Act ie to enforce the said provisions which have been enacted in the interest of the public and that power as we have indicated is exercisable on the basis of objective tests and in accordance with the principles of natural justice We cannot therefore hold that section 251c of the Act imposes an unreasonable restriction on the petitioner s fundamental rights under article 191f and g of the Constitution Before leaving this part of the case we must make it clear that we do not intend to lay down as a proposition that whenever discretionary power is conferred on a State Government or the Union Government by law the said law must necessarily operate as a reasonable restriction on a fundamental right Such a general proposition negatives the concept of fundamental rights for the simple reason that fundamental rights are guaranteed against State action Therefore the conferment of such a power on the State Government and not upon a subordinate officer is only one of the considerations that may enter into the judicial verdict on the reasonableness of a particular law and the reasonableness of that law falls to be decided only on the cumulative effect of the circumstances under which such power is conferred The next question is did the State Government comply with the provision of section 251c read with the second proviso thereto of the Act Under the said proviso the State Government can cancel a licence after affording reasonable opportunity to the licensee to show cause why his licence should not be cancelled This proviso confers a quasi judicial power on the 620 State Government The concept of reasonable opportunity is an elastic one and is not susceptible of easy and precise definition The decisions on cases under article 311 of the Constitution afford illustrations of the applications of the said doctrine to varying situations What is reasonable opportunity under one set of circumstances need not be reasonable under different circumstances It is the duty of the Court to ascertain in each case having regard to the overall picture before it to come to a conclusion whether reasonable opportunity is given to a person to show cause within the meaning of the second proviso to section 251 of the Act Tribunals or authorities who are entrusted with quasi judicial functions are as much bound by the relevant principles governing the doctrine of bias as any other judicial tribunal This Court in a recent decision in Gullapalli Nageswara Rao vs The State of Andhra Pradesh 1 observed The principles governing the doctrine of bias vis a vis judicial tribunals are well settled and they are i no man shall be a judge in his own cause ii justice should not only be done but manifestly and undoubtedly seem to be done The two maxims yield the result that if a member of a judicial body is subject to a bias whether financial or other in favour of or against any party to a dispute or is in such a position that a bias must be assumed to exist he ought not take part in the decision or sit on the tribunal and that any direct pecuniary interest however small in the subject matter of inquiry will disqualify a judge and any interest though not pecuniary will have the same effect if it is sufficiently substantial to create a reasonable suspicion of bias The said principles are equally applicable to authorities though they are not courts of justice or judicial tribunals who have to act judicially in deciding the rights of others ie authorities who are empowered to discharge quasijudicial functions In view of the foregoing principles the first question to be considered is whether in the present case the 1 1959 SCR Supp 1 319 621 authority functioning for the State Government it is admitted that the then Revenue Minister of the State made the impugned order had personal bias against the petitioner Secondly we will have to scrutinize the record to ascertain whether reasonable opportunity was given to the petitioner to show cause or whether it was denied that right Thirdly we will have to ascertain whether the State Government found that the petitioner was guilty of repeated failure to comply with any of the other provisions of the Act or the rules made thereunder and cancelled the licence on the basis of that finding It may be mentioned that the learned Advocate General who appeared before us on behalf of the State submitted that the State Government exercised its power under section 251c of the Act The notice to show cause was issued by the State Government to the petitioner on March 7 1953 The licence granted in favour of the petitioner was cancelled by the State Government by its notification dated September 1 1955 Admittedly during this period Sri Krishna Ballav Sahay was the Revenue Minister of the Government of Bihar and he was in charge of the department dealing with mines There was political rivalry between the said Minister and Sri Raja Bahadur Kamakshya Narain Singh the ex landlord of Ramgarh and Serampur estates in the district of Hazaribagh who leased the lands in question to the petitioner The case of the State is that the said lease was benami only for the said proprietor and the case of the petitioner is that the wife of the proprietor Rani Lalita Rajya Luxmi Devi is the registered share holder of the Company The question whether the lease is only benami for the proprietor or not is now in dispute in title suit No 53 of 1954 pending on the file of the court of the Subordinate Judge Hazaribagh We shall therefore assume for the purpose of this case that there is a dispute on the question of title the State Government asserting that the lease is only benami for the proprietor and the petitioner claiming to be the real lessee and the wife of the proprietor only a registered share holder of the 622 Company Whichever version is true the proprietor directly or because of his wife is very much interested in the Companyat any rate the Government s case is that he is the owner It is alleged in the petition that the said proprietor opposed the Revenue Minister in the general election held in 1952 to the Bihar Legislative Assembly in the constituency of Giridih and Barkagaon and defeated him It is also stated that before the said election the Revenue Minister filed a criminal case against the proprietor in the District Court of Hazaribagh charging him under section 500 of the Indian Penal Code The High Court in a judgment dated April 15 1952 delivered in the petition to transfer the said case to some other Court recorded the admitted fact that there was political rivalry between the Minister and the proprietor Ultimately this Court transferred the said criminal case from the State of Bihar to the file of a Magistrate s Court in Delhi on the ground that there was political rivalry between the two persons These facts are not denied in the counter affidavit filed by the State In the said counter affidavit the following cryptic statement occurs That the allegations in para 14b of the petition about the alleged political rivalry between Sri Kamakshya Narain Singh and Sri Krishna Ballav Sahay the then Minister Revenue has no bearing on the facts of this case so far as the orders of the Government are concerned and to that extent the allegations are denied It may therefore be taken that the allegations of personal bias of the Revenue Minister against the proprietor is not denied It is also not disputed that the proceedings against the petitioner were started during the tenure of the said Revenue Minister and that the actual order of cancellation was made by him We have no hesitation in holding that the Revenue Minister had personal bias against the proprietor and that he was also acting on the belief that the lease was only benami for the said proprietor We therefore hold that the said Revenue Minister had personal bias within the meaning of the decisions and he should 623 not have taken part in either initiating the enquiry or in cancelling the licence On the basis that section 25 of the Act is constitutionally valid the question is whether the provisions of that section have been complied with in the present case If they were not complied with the order of the State Government made in derogation of the said provisions would certainly infringe the fundamental rights of the petitioner The main objection to the validity of the impugned order is that the State Government did not afford the petitioner reasonable opportunity to show cause why his licence should not be cancelled The subject matter of the mining leasehold interest is in respect of 3026 villages for a period of 999 years It is alleged in the petition that a large amount of about Rs 16 lakhs were spent by the petitioner to obtain the mining lease and in addition a considerable sum was spent in prospecting and developing the mines On March 7 1953 the Government of Bihar through its Secretary in the Revenue Department issued a notice to the petitioner asking it to show cause within 15 days of the receipt of the said notice why action to cancel the miner s licence No 261 H under section 251c of the Act should not be taken by the Government It is stated in the notice that the petitioner committed violations of sections 10 12 and 14 in respect of their mica godowns at Marhand and Sultana sections 10 and 12 in respect of the godowns at Simaria and section 10 in respect of Kowabar godowns and have thus been guilty of repeated failures to comply with those provisions of the Bihar Mica Act 1947 On receipt of this notice the peti tioner by its letter dated March 20 1953 asked the Government to furnish it with particulars of the allegations contained in the said notice and on March 27 1953 renewed its request for the said particulars On May 1 1953 the Government sent a Memorandum No AM1 802253R to the petitioner Company giving the particulars of the violations of the provisions of the Act The subject of the memorandum is described as Repeated failure to comply with the provisions of the Bihar Mica Act 1947 The particulars show that between December 3 1952 and December 11 1952 624 the Inspector of Mica Accounts inspected different godowns of the petitioner and found contravention of the provisions of sections 10 12 and 14 of the Act What is important to notice is that the inspection though spread over a few days was really one inspection of different godowns and the particulars disclosed were comparatively trivial defaults in carrying out the provisions of the Act It may also be noticed that one of the particulars related to an inspection alleged to have been made on March 6 1952 and in respect of that inspection the petitioner was prosecuted and convicted but the licence was renewed for the next two years in spite of the said conviction The result of that inspection is therefore not germane to the enquiry initiated by the notice dated March 7 1953 After giving the particulars the memorandum concludes it is clear that the Company has been guilty of repeated failure to comply with the provisions of the Bihar Mica Act 1947 and on these allegations the Company was directed to show cause why the licence should not be cancelled under section 251b of the Act Section 251b says that the State Government may cancel the licence of any licensee who being a person to whom a miners s licence has been granted extracts mica from a mine the particulars of which are not endorsed on his licence It is admitted by the learned Advocate General that the Government did not take action under cl b of section 251 and that the mention of that clause in the memorandum was only a mistake for cl c of section 251 of the Act On May 17 1953 the petitioner submitted to the Government a detailed explanation in regard to the charges levelled against it It premised its explanation with the statement that all the relevant books of accounts and stock books had been seized by the Inspector of Mica Accounts and had not been returned in spite of repeated requests and that therefore it reserved its right to make further submissions when the books were returned It also pointed out that at the time of inspection it was not asked to explain the alleged irregularity in accordance with the usual procedure in regard to such matters In then proceeded to answer every one of 625 the allegations made against it The explanation given by the Company appears to be plausible and the contraventions alleged even if true appear to be too trivial for the drastic action taken by the State In 1954 the Government filed a suit against the said proprietor for a declaration that the various companies brought into existence by him were bogus ones and the various transactions entered into by him were all benami for him After the explanation given by the petitioner there was a lull for more than two years The State Government neither returned the account books nor invited the petitioner to make further submissions by allowing it to look into the accounts seized by the authorities concerned Suddenly on September 7 1955 a notification was issued to the effect that the Governor of Bihar was pleased to cancel the petitioner s licence It was also directed to stop operating the mica mines forthwith and to produce the books of account relating to the above mines in respect of their godowns on September 12 1955 From the foregoing narration of facts it is obvious that the licence affecting rights of great magnitude was cancelled to say the least for trivial reasons The enquiry was held by the department headed by the Minister who was obviously biased against the petitioner Some technical non compliances of the rules alleged to have been discovered during the inspection of certain godowns were given as an excuse to withdraw the licence no opportunity was given to the petitioner to inspect its accounts and to explain the alleged defaults with reference to the accounts After the petitioner gave its reply a sense of false security was created in the petitioner and after a period of two years the Government issued the notification cancelling the licence Meanwhile as a second string to the bow the state filed a suit against the proprietor for a declaration that the lease was benami and for other reliefs The hidden hand of the Revenue Minister can be seen in this enquiry The proceedings were started because of political rivalry between the proprietor and the Revenue Minister Though heavy stakes were involved the enquiry was conducted in a manner which 80 626 did not give any real opportunity to the petitioner to explain its conduct and to disprove the allegations made against it and the order of cancellation of the licence was made admittedly by the same Revenue Minister who was behind the enquiry In the circumstances we must hold that no reasonable opportunity was given to the petitioner within the meaning of the second proviso to section 251 of the Act That apart the State Government did not find on the material that the petitioner was guilty of repeated failure to comply with any of the provisions of the Act The particulars furnished by the Government did not disclose any such repeated failure Under section 251c of the Act repeated failure to comply with any of the provisions of the Act is a necessary condition for the cancellation of a licence Unless there is repeated failure within the meaning of that clause the State Government has no power to cancel the licence under the said clause That apart neither in the notice initiating the proceedings nor in the notification cancelling the licence issued by the Government it was stated that the petitioner was guilty of repeated failure within the meaning of the said clause But in the particulars furnished the State Government alleged that the petitioner had been guilty of repeated failure to comply with the provisions of the Act but the particulars did not support that statement for apart from the default of March 1952 the alleged contravention of rules were discovered by the Inspector of Mica Accounts only during the inspection of some of the godowns between December 3 1953 and December 11 1953 The result of that one continuous inspection cannot be the basis for holding that the petitioner was guilty of repeated failure within the meaning of section 251c of the Act There is nothing on record to show that the petitioner was found to be guilty of contravention of any of the provisions of the Act on any other occasion after March 1952 Apart from the only prosecution which we have already noticed the petitioner was not prosecuted for any other contravention of the provisions of sections 10 12 or 14 of the Act That prosecution cannot be pressed into 627 service as the State Government renewed the licence for 1953 54 In this state of record we must hold that the respondents failed to prove that the petitioner was guilty of repeated failure to comply with the provisions of the Act On the basis of the said finding the respondents would have no power to take action under section 251c of the Act The foregoing discussion establishes that neither the necessary condition to enable the Government to take action under section 251c of the Act has been established nor the State Government had afforded reasonable opportunity to the petitioner within the meaning of the second proviso to section 251 In the result we accept the petition and issue a writ of certiorari against the respondents quashing the order of the Government of Bihar dated September 1 1955 cancelling miner s licence No 261 H of 1951 granted in favour of the petitioner The respondents will pay the costs to the petitioner Petition allowed

The three respondents who were the General Manager the Assistant Manager and the Secretary of the Laxmi Devi Sugar Mills Ltd were charged under sections 12 13 and 26 of the United Provinces Shop and Commercial Establishment Act 1947 for contravening the provisions of the Act relating to holidays leave and maintenance of certain registers regarding a class of field workers employed by the company to guide supervise and control growth and supply of sugar cane for use in the factory It was contended on their behalf that those employees were workers within the meaning of the and the United Provinces Shop and Establishment Act did not apply to them The Judicial Magistrate rejected that contention and convicted the respondents under section 26 of the Act and sentenced them to pay a fine of Rs 30 each On a reference by the Sessions judge recommending that the said convictions and sentences may be set aside the High Court acquitted the respondents The State Government appealed to this Court by Special Leave Held that the order of acquittal passed by the High Court was erroneous The provisions of the were intended to benefit only workers employed in a factory and since field workers guiding supervising and controlling growth and supply of sugar cane for use in the factory were not employed in the factory the did not apply to them and they fell within the definition of Commercial Establishment under the United Provinces Shop and Commercial Establishment Act 1947

Civil Appeal No 163 of 1951 Appeal by special leave from the Judgment dated the 10th April 1951 of the High Court of Judicature for the State of Punjab at Simla Kapur J in Civil Revision No 286 of 1950 arising out of Order dated the 24th March 1950 of the Court of Subordinate Judge 1st Class Delhi in an Application under Section 33 of Indian Arbitration Act X of 1940 Rattan Lal Chawla K N Agarwal with him for the appellant Som Nath Chopra for the respondent February 25 The Judgment of the court was deliv ered by FAZL ALI J This is an appeal by special leave against the judgment of the Punjab High Court upholding the decision of a Subordinate Judge of Delhi relating to a petition filed by the appellant company under section 33 of the Indian Arbitration Act against the respondents 503 The material facts are these On the 22nd April 1947 the appellant company insured a car belonging to the first respondent and issued a policy which fully sets out the terms and conditions of the agreement relating to the insur ance The first respondent left his car in a garage at Lahore and came away to India on the 31st July 1947 Subsequently he learned about the loss of his car and sent a legal notice dated the 18th March 1948 through his advocate Mr AR Kapur to the Head Office of the company at Calcutta claiming a sum of Rs 7000 for the loss of the car On the 10th April 1948 Mr Kapur received a letter from the Branch Manager of the Company s office at Amrit sar asking for information regarding certain matters stated in the letter This information appears to have been sup plied on the 30th April 1948 On the 26th May 1948 the company s Branch Manager at Amritsar wrote to the first respondent repudiating the liability of the company for the loss of the car on the ground that the loss was due to communal riots which were going on in the whole of Punjab and was not covered by the agreement of insurance A simi lar letter was written again by the Branch Manager on the 3rd July 1948 to the first respondent and another letter was written by one Mr Rattan Lal Chawla representing him self to be counsel for the company to Mr AR Kapur on the 1st August 1948 On the 21st November 1949 the first respondent wrote a letter to the Branch Secretary of the Company s office at Calcutta stating that his claim was valid and nominating Mr TC Chopra Assistant Manager Lakshmi Insurance Company Ltd Delhi as arbitrator on his behalf and requesting the company to appoint another person as arbitrator on its behalf Thereafter the company pre sented an application on the 29th December 1949 in the court of the Senior Sub judge Delhi under section 33 of the Indian Arbitration Act against the first respondent and Mr TC Chopra the arbitrator who is the second respond ent in this appeal praying for 504 1 a declaration to the effect that the reference to arbitration and the appointment of respondent No 2 as sole arbitrator was illegal 2 a declaration to the effect that if the respondent No 2 made any award it would not be binding on the companyand 3 an injunction restraining the respondents Nos 1 and 2 from taking any proceeding in the matter and the respond ent No 2 from making any award Upon this petition notice was issued to the respond ents and an injunction was issued directing them not to file any award till the date of the next hearing which was fixed for 31st January 1950 On the 4th February 1930 the first respondent wrote to the second respondent the arbitrator that since no arbitrator had been appointed by the company and since the company had refused to appoint any arbitrator he Mr Chopra was to act as the sole arbitra tor On the 6th February 1950 Mr Chopra wrote to inform the insurance company that he had been appointed sole arbi trator and asked the company to send the statement of its case and to produce all the evidence on the 14th February 1950 On the 10th February 1950 the insurance company filed a petition before the Subordinate Judge Delhi pray ing that the respondents be stopped from proceeding further in the matter so that its application under section 33 may not become infructuous On the 11th February the Subordi nate Judge issued notice to the respondents fixing the 17th February as the date of hearing and passed the following order Moreover till the decision of this application the arbitrator should not give or pronounce his award but should continue the proceedings On the 14th February 1950 the second respondent pronounced his award after making a note to the following effect Mr GR Chopra the counsel of the defendants sent a telephonic message at 12 AM requesting extension till 1 PM I agreed and accordingly I waited for 505 him and the plaintiff with his counsel also waited up to 1 PM Nobody turned up on behalf of the defendants I commenced the proceedings and took the statement of the plaintiff and the documents that he had produced He made a further note at the end of the award to this effect As after the giving of the award a notice was served upon me not to give the award I have not sent any formal letter to the parties informing them of the award and its costs On the 24th March 1950 the Subordinate Judge passed an order on the company s application under section 33 dis missing it and holding that the terms of clause 7 of the agreement were comprehensive enough to include the points of disputes between the parties now and as such are triable by the arbitrator and not by the court The Subordinate Judge concluded his order by observing I therefore hold that the reference to the arbitra tion of the differences is perfectly valid and the points raised by the parties to this application with regard to the abandonment of claim and its becoming irrecoverable are to be decided by the arbitrator The judgment of the Subordinate Judge was upheld in revision by the Punjab High Court and the company has now preferred an appeal to this court by special leave The points that were urged on behalf of the appellant in this appeal are these 1 that the arbitration clause had ceased to be opera tive and the question as to the existence and validity of the arbitration agreement was triable by the court under section 33 of the Arbitration Act and not by the arbitrator and 2 that the award was invalid and not binding on the appellant because it was pronounced in spite of the order of the court dated the 11th February 1950 directing the arbitrator not to pronounce his award 506 Clause 7 of the policy of insurance rims as follows All differences arising out of this policy shall be referred to the decision of an arbitrator to be appointed in writing by the parties in difference or if they cannot agree upon a single arbitrator to the decision of two arbi trators one to be appointed in writing by each of the parties within one calendar month after having been required in writing so to do by either of the parties or in case the arbitrators do not agree of an umpire appointed in writing by the arbitrators before entering upon the reference The umpire shall sit with the arbitrators and preside at their meeting and the making of an award shall be a condition precedent to any right of action against the company if the company shall disclaim liability to the insured for any claim hereunder and such claim shall not within twelve calendar months from the date of such disclaimer have been referred to arbitration under the provisions herein con tained then the claim shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable hereunder It will be noticed that this clause provides among other things that if the company disclaimed liability to the insured for any claim under the policy and such claim was not within twelve calender months from the date of such disclaimer referred to arbitration then the claim should be deemed to have been abandoned and was not recoverable The case of the company is that it disclaimed liability for the loss of the car on three successive occasions namely on the 26th May 1948 the 3rd July 1948 and the 1st August 1948 The first respondent however did not take any action in regard to the appointment of an arbitrator until the 21st November 1949 ie until more than 12 months after even the last disclaimer by the company For this reason the claim put forward by the first respondent must be deemed to have been abandoned and he cannot recover anything from the company On the other hand the case of the first respond ent which 507 is set out in his affidavit dated the 17th February 1950 is that there was never any valid disclaimer by the company of its liability The position that he took up was that the Branch Manager of the company had no authority to disclaim the liability and it could have been disclaimed only by a resolution of the company Now these being the respective contentions of the parties the question is whether the point in dispute fell to be decided by the arbitrator or by the court under section 33 of the Arbitration Act Section 33 is to the following effect Any party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the Court and the Court shall decide the question on affidavits Provided that where the Court deems it just and expedi ent it may set down the application for hearing on other evidence also and it may pass such orders for discovery and particulars as it may do in a suit The question to be decided is whether the point on which the parties are in dispute is a difference arising out of the policy in terms of clause 7 of the policy The test for determining such a question has been laid down in a series of cases and is a simple one The test is whether recourse to the contract by which the parties are bound is necessary for the purpose of determining the matter in dispute between them If such recourse to the contract is necessary then the matter must come within the scope of the arbitrator s jurisdiction In the present case both the parties admit the contract and state that they are bound by it Indeed the appellant company in order to make good its contention is obliged to rely and does rely on that part of clause 7 of the policy which states that if the company should disclaim liability and the claim be not referred to arbitration within 12 months of such disclaimer the claim shall be deemed to have been abandoned Evidently the company cannot succeed without calling in aid this clause and 508 relying on it Again the first respondent does not say that he is not bound by the clause but states that the matter was referred to arbitration before any valid disclaimer was made The position therefore is that one party relying upon the arbitration clause says that there has been a breach of its terms and the other party also relying on that clause says that there has been no breach but on the other hand the requirements of that clause have been fulfilled Thus the point in dispute between the parties is one for the decision of which the appellant is compelled to invoke to his aid one of the terms of the insurance agreement It is thus clear that the difference between the parties is a difference arising out of the policy and the arbitrator had jurisdic tion to decide it the parties having made him the sole judge of all differences arising out of the policy A large number of cases were cited before us on behalf of the parties but it is unnecessary to refer to them since the question which arises in this appeal is a simple one and is covered by the statement of law which is to be found in the decision of this Court in AM Mair Co vs Gordhandass Sagarmull C and in a series of English author ities some of which only may be referred to In Heyman vs Darwins Ltd 2 the law on the subject has been very clearly stated in the following passage An arbitration clause is a written submission agreed to by the parties to the contract and like other written submissions to arbitration must be construed according to its language and in the light of the circumstances in which it is made If the dispute is as to whether the contract which contains the clause has ever been entered into at all that issue cannot go to arbitration under the clause for the party who denies that he has ever entered into the contract is thereby denying that he has ever joined in the submission Similarly if one party to the alleged contract is contending that it is void ab initio because for exam ple the making of such a contract is illegalthe arbitra tion 11950 SCR 792 2 1941 1 AER337343 509 clause cannot operate for on this view the clause itself is also void however the parties are at one in asserting that they entered into a binding contract but a difference has arisen between them as to whether there has been a breach by one side or the other or as to whether circumstances have arisen which have discharged one or both parties from fur ther performance such differences should be regarded as differences which have arisen in respect of or with regard to or under the contract and an arbitration clause which uses these or similar expressions should be construed accordingly In Macaura vs Northern Assurance Co 1 the appellant had insured a large quantity of timber against fire and the greater part of the timber having been de stroyed by fire he sued the insurance company to recover the loss but the action was stayed and the matter was re ferred to arbitration in pursuance of the conditions con tained in the policy The arbitrator held that the claimant had no insurable interest in the goods insured and disal lowed the claim One of the points raised in the case was that the arbitrator had no jurisdiction to decide the mat ter but that contention was rejected by Lord Sumner in these words The defendants do not repudiate the policy or dispute its validity as a contract on the contrary they rely on it and say that according to its terms express and implied they are relieved from liability see Stebbing s case2 Woodall vs Pearl Assurance Co3 It is a Fallacy to say that they assert the policy to be null and void In Stebbing vs Liverpool and London and Globe Insurance Company Limited2 to which reference was made by Lord Summer the policy of insurance contained a clause referring to the decision of an arbitrator all differences arising out of this policy It also 1 3 2 66 510 contained a recital that the assured had made a proposal and declaration as the basis of the contract and a clause to the effect that compliance with the conditions indorsed upon the policy should be a condition precedent to any liability on the part of the insurers One of the conditions provided that if any false declaration should be made or used in support of a claim all benefit under the policy should be forfeited In answer to a claim by the assured the insurers alleged that statements in the proposal and declaration were false When the matter came before the arbitrator the assured objected that this was not a difference in the arbitration and that the arbitrator had no power to deter mine whether the answers were true or not or to determine any matters which called in question the validity of the policy In holding that the arbitrator had jurisdiction to decide the matter Viscount Reading CJ observed as fol lows If the company were seeking to avoid the contract in the true sense they would have to rely upon some matter outside the contract such as a misrepresentation of some material fact inducing the contract of which the force and effect are not declared by the contract itself In that case the materiality of the fact and its effect in inducing the contract would have to be tried In the present case the company are claiming the benefit of a clause in the contract when they say that the parties have agreed that the statements in question are material and that they induced the contract If they succeed in escaping liability that is by reason of one of the clauses in the policy In resisting the claim they are not avoiding the policy but relying on its terms In my opinion therefore the question whether or not the statement is true is a question arising out of the policy The main contention put forward on behalf of the appel lant is that the points in dispute fall outside the juris diction of the arbitrator firstly because the existence of the arbitration agreement is challenged and secondly because the sole object of the application under section 33 of the Arbitration Act is tO have the 511 effect of the arbitration agreement determined In our opinion neither of these objections is sound How can it be held that the existence of the arbitration agreement is challenged when both parties admit that the clause in the policy which contains that agreement binds them It is neither party s case that there is no arbitration agreement in the policy On the other hand both parties admit that such agreement exists and each of them relies on it to support its case It is true that the appellant contends that the arbitration agreement has ceased to be applicable but that contention cannot be sustained without having recourse to the arbitration agreement It is said that the agreement no longer subsistsbut that is very different from saying that the agreement never existed or was void ab initio and therefore is to be treated as non existent Again no question of determining the effect of the arbitration agreement arises because there is no dispute between the parties as to what it means The language of the arbitration clause is quite clear and bothparties construe it in the same way The real question between them is whether the first respondent has or has not complied with the conditions of the agreement But this question does not turn on the effect of the agreement This is the view which has substantially been taken by the High Court and in our opinion it is correct The second point urged before us is that the award is invalid since it was made in spite of the court s injunc tion directing the arbitrator not to pronounce any award This point however does not in our opinion fall within the scope of this appeal The application under section 33 of the Arbitration Act which is the subject of this appeal was filed before the award was pronounced In that applica tion there is no reference to the award nor is there any reference to the circumstances which are now stated to invalidate the award and which happened after the applica tion was filed The learned counsel for the appellant made an application before us praying for the amendment of the petition under section 38 by introducing certain 512 additional facts and adding a prayer for declaring the award to be invalid but it was rejectedby us It should be stated that as early as the 24th March 1950 the Subordi nate Judge in dismissing the appellant s petition under section 33 made the following observations During the pendency of the arbitration proceedings the arbitrator pronounced the award The award has now been filed in the court of section Mohinder Singh Sub Judge 1st class Delhi Any objection against the award can be filed there In this application in which there is no prayer for setting aside the award which exists I do not think it proper to decide the question of the validity of the award In our opinion the Subordinate Judge correctly indi cated the course which it was open to the appellant in law to adopt for the purpose of questioning the validity of the award but not having taken that course and not having made any application in the courts below for amending the petition under section 33 the company cannot ask this court to go into the validity of the award by widening the scope of the original petition This court is always in favour of shortening litigation but it would be a very unusual step to allow the petition under section 33 to be amended now and to decide a question involving investigation of facts with out having the benefit of the judgments of the courts below In the result the appeal fails and is dismissed with costs Appeal dismissed Agent for respondent No 1 SD Sekhri

The petitioner who was doing business in tobacco was charged with the contravention of Rules 151C and 226 of the Central Excise Rules 1944 framed under the The Collector finding the charges to be proved ordered confiscation of the goods found in the petitioner s warehouse and levied duty thereon in lieu of confiscation and also imposed a penalty of RS 2000 The petitioner challenged the validity of the orders on the grounds inter alia that sections 6 and 8 of the Act and the Rules made thereunder were beyond the legislative competence of the Central legislature in view of the fact that though the provisions of the Act which provided for the levy of excise duties might fall within item 45 of List 1 read with section 100 of the Government of India Act 1935 the Act in question would also be covered by items 27 and 29 of List 11 as the possession and trade in tobacco were also regulated and would to that extent be ultra vires 363 Held that the various provisions of the and the Rules made thereunder were essentially connected with the levying and collection of excise duty and in its true nature and character the Act remained one under item 45 of List 1 and that the incidental trenching upon the provincial field of items 27 or 29 of List 11 would not affect its constitutionality It is within the competence of the Central legislature to provide for matters which may otherwise fall within the Competence of the Provincial Legislature if they are necessarily incidental to effective legislation by the Central legislature on a subject of legislation expressly within its power State of Rajasthan vs G Chawla and Cooverjee Bharucha vs The Excise Commissioner of Ajmer followed Attorney General for Canada vs Attorney General for British Columbia and Attorney General for Canada vs Attorney General for Quebec relied on

171 of 1958 Petition under Article 32 of the Constitution of India for enforcement of fundamental rights Purshottam Tricumdas Porus A Mehta section N Andley J B Dadachanji Rameshwar Nath and P L Vohra for the petitioners C K Daphtary Solicitor General of India N section Bindra B H Dhebar and T M Sen for the respondents December 9 The judgment of Sinha CJ Gajendragadkar Das Gupta and Shah JJ was delivered by Das Gupta J Subba Rao J delivered a separate judgment DAS GUPTA J The first petitioner is a Company registered under the Indian Companies Act having its registered office in Bombay and is engaged in the business of dyes chemicals plastics and various other goods The second petitioner is the Chairman and a Director of the first petitioner Company In this petition for enforcement of fundamental rights under the Constitution they pray for the issue of a writ of certiorari or other appropriate writ direction or order quashing an order made by the first respondent the Chief Controller of Imports and Exports Government of India New Delhi by which he cancelled five import licences which had been granted to the first petitioner by the Joint Chief Controller of Imports and Exports Bombay There is also a prayer for an order on the second respondent the Collector of Customs Bombay directing him to assess the goods of the petitioner Company which have been landed in Bombay having been imported on the strength of these licences and allow the petitioner company to clear them Of these five licences two were dated July 24 1958 two dated August 16 1958 and the fifth 411 dated September 4 1958 The total value of the imports authorised by these five licences was Rs 2575000 The petitioners contend that these five licences were granted to the petitioner Company on five applications sent by them by registered post to the Chief Controller of Imports and Exports Government of India New Delhi three sent on June 17 1958 one on June 26 1958 and the last on July 22 1958 It is further stated that in respect of each of these applications a letter was received by the Company from the office of the Chief Controller of Imports and Exports Government of India New Delhi intimating that their application had been forwarded to the Joint Chief Controller of Imports and Exports Bombay with the necessary comments and asking the Company to contact this officer the Joint Chief Controller of Imports and Exports Bombay direct in the matter The petitioner Company wrote in each case to the Chief Controller of Imports and Exports New Delhi acknowledging receipt of these letters and at the same time to the Joint Chief Controller of Imports and Exports Bombay requesting that the licences should be issued to them at an early date After the licences were received by the Company from the office of the Joint Chief Controller of Imports and Exports Bombay the Company placed orders for the goods covered by these licences and some of the goods actually arrived at Bombay Before however any of these goods could be cleared the Company received a notice dated September 24 1958 stating that whereas there was reason to believe that these five licences had been obtained fraudulently the Government in the exercise of the powers specified in para 9 of the Imports Control Order 1955 proposed to cancel the said licences unless sufficient cause against that was furnished to the Chief Controller of Imports and Exports New Delhi within 10 days of the date of the issue of the said notice On September 26 the petitioner Company s solicitors sent a telegram to the Chief Controller of Imports and Exports New Delhi requesting him to give particulars of the alleged fraud and to give them an appointment for inspection of papers 412 and documents relied upon by him On September 27 Company wrote a letter to the same officer in which they gave a written explanation pointing out various facts and stating that they were victims of foul play by some person interested in causing damage to them and involving their reputation and in order to bring them in bad books with the authorities In the concluding portion of this letter the Company stated We also reserve our right to add to amend or alter the explanations contained in this letter hereafter and to submit such further explanations as may become necessary after taking inspection of all the papers and after getting the particulars of the alleged fraud We shall thank you to give us also an opportunity of a personal hearing in the matter This written explanation was handed over to the first respondent by the Company s representatives at an interview with him on September 30 At that interview also it is said the representatives of the Company pointed out to Mr Bilgrami that in the absence of any particulars of the alleged fraud and without inspection of the papers relied upon by him it was not possible for the petitioners to give a complete explanation and that they reserved their right to give further explanation on getting the said particulars and inspection of the said papers The Company s representatives had another interview with Mr Sundaram Director Administra tion in the Chief Controller s Office on October 14 1958 At this interview the petitioners again requested Mr Sundaram to give them particulars and that they might be permitted to inspect the papers No particulars were however furnished and no inspection was allowed but on that very date when they had this interview with Mr Sundaram the first respondent made the order of cancellation The ten grounds set out in Cls A to L of para 15 of the petition as the basis for the relief resolve on analysis into four only These are 1 Clause 9a of the Import Control Order under which the order of cancellation has been made is itself unconstitutional being violative of the petitioners 413 rights under article 191f g and article 31 of the Constitution 2 The Order of cancellation has been made without compliance with the mandatory requirement of cl 10 of the Imports Control Order to give the licensee a reasonable opportunity of being heard 3 The first respondent Mr Bilgrami bad no authority in law to make any order under cl 9 of the Import Control Order 4 The petitioners have been denied equal protection of laws under article 14 of the Constitution inasmuch as other persons similarly situated have been given a proper opportunity and a personal hearing before taking any action against them while the petitioners have been denied a proper opportunity to show cause for the cancellation of licences and personal hearing in the matter Of these four grounds the third ground viz that Mr Bilgrami had no authority in law to make an order under cl 9 of the Imports Control Order was made in apparent ignorance of the fact that the Chief Controller of Imports and Exports became competent to make an order thereunder in consequence of an amendment made in the Order in 1958 As the clause originally stood the relevant words were The Central Government or any other officer authorised in this behalf may cancel any licence granted under this order By the amendment made on February 27 1958the words or the Chief Controller of Imports and Exports were inserted after the words the Central Government in this clause The position on the relevant dates in September and October 1958 therefore was that the Chief Controller of Imports and Exports New Delhi had authority to cancel any licence granted under the Imports Control Order without being specially authorised in that behalf It was apparently in view of this position which was pointed out by Mr Bilgrami in his affidavit in opposi tion that the learned Counsel for the petitioners did not press this ground at all Nor did he press the fourth ground viz that the petitioners right under 53 414 article 14 of the Constitution has been infringed It is obvious that if the order has been made without the petitioners having been given a reasonable opportunity of being heard that itself would entitle them to the relief prayed for The question whether or not other persons were given a fair opportunity of being heard is entirely irrelevant In opposition to this application Mr Bilgrami the first respondent contends inter alia that the provision for cancellation of a licence under cl 9 of the Order does not contravene any of the fundamental rights granted under article 191f and g and Art 31 of the Constitution and that the petitioners were given adequate and reasonable opportunity of being heard before the order of cancellation was made Mr Bilgrami has stated in the affidavit that while it is true that four applications for licence three dated June 17 arid one dated June 26 1958 were received in his office the fact is that all these four applications were rejected and that it is now found that while these four rejected applications were lying in his office four similar applic ations bearing the same dates and containing the same particulars and a fifth application bearing the date July 22 1958 somehow made their appearance in the office of the Joint Chief Controller of Imports and Exports Bombay along with five separate letters one in respect of each application containing recommendations for issue of licences purporting to have been issued from the office of the Chief Controller of Imports and Exports New Delhi under the signature of one Shri M L Gupta Deputy Chief Controller of Imports and Exports The respondent contends that the purported signatures of Shri M L Gupta on these letters were not genuine Mr Bilgrami also contends that though these letters purported to state that the issue of licences was authorised by him he did not in fact give any authority and that when the petitioners representatives interviewed him on September 30 1958 they were told of the general nature of the fraud and that he further told them that the issue of the licences had not been authorised by him as they purported to be and that they had been obtained 415 fraudulently The respondents further contend that when again on October 14 1958 the petitioners had an interview with Mr Sundaram the Director of Administration in the office of the Chief Controller of Imports and Exports Mr Sundaram told them expressly that the recommendations against which the disputed licences were granted to the petitioners were not genuine The first contention on behalf of the petitioners is that cl 9a of the Imports Control Order is itself invalid as it violates a licensee s rights under article 191f and g and article 31 of the Constitution Clause 9a is in these words Cancellation of Licence The Central Government or the Chief Controller of Imports and Exports or any other officer authorised in this behalf may cancel any licence granted under this order or otherwise render it ineffective a If the licence has been granted through inadvertence or mistake or has been obtained by fraud or misrepresentation As in the present case there is no question of the licences having been granted through inadvertence or mistake it is not necessary for us to consider whether the provision for cancellation of licences on the ground that they have been granted through mistake or inadvertence is invalid The question in the present case is whether the provision for cancellation of licences on the ground that they have been obtained by fraud or misrepresentation is a reasonable restriction in the interests of the general public on the exercise of the petitioners right under article 191f and It has to be noticed first that here is no case of unbridled authority to cancel a licence nor is there any scope for arbitrary action If a provision for giving a reasonable opportunity of being heard bad not been made in the Order itself it would have been necessary to consider whether this had still to be given because rules of natural justice required it No discussion about the requirements of the rule of natural justice is however called for here as cl 10 of the Order provides that no action shall be taken under clauses 7 8 or 9 416 unless the LicenseeImporter has been given a reasonable opportunity of being heard It is proper to state that the learned Counsel for the petitioners does not attack the validity of the provisions on the ground that it gives unbridled authority to cancel a licence or that the requirements of natural justice have not been sufficiently fulfilled by clause 10 His argument is that though it may not be unreasonable that a licence should be cancelled if the licensee himself has practised fraud in obtaining it cancellation is wholly unreasonable if it is made merely on the ground that it has been obtained by fraud without it being further shown that the licensee himself has been a party to the fraud It appears to us that in most cases if not in all cases where a licence is obtained by fraud or misrepresentation it would be reasonable to think that the person in whose favour the licence has been obtained cannot but be a party to the fraud or misrepresentation The petitioners Counsel submitted that it is possible to imagine a case where an enemy of the person in whose favour the licence is granted procures such grant by means of fraud with the deliberate motive of accusing this person later on of fraud and thereby subjecting him on the one hand to criminal prosecution and on the other hand damaging his reputation and ruining his business It is unnecessary for us to decide in the present case whether this may ever happen Clearly however the fact that fraud by which the grant of the licences has been induced by an enemy is wholly immaterial on the present question The entire scheme of control and regulation of imports by licences is on the basis that the licence is granted oil a correct statement of relevant facts That basis disappears if grant of the licence is induced by fraud or misrepresentation Whether the licensee himself or some others party is responsible for the fraud or misrepresentation the fact remains that in such cases the basis of the grant of licence has disappeared It will be absolutely unreasonable that such a licence should be allowed to continue We are therefore of opinion that the provision that licence may be cancelled if it is found after giving a 417 reasonable opportunity to the licensee to be heard to have been obtained by fraud or misrepresentation is a reasonable restriction in the interests of the general public on the exercise of the fundamental right of a citizen guaranteed under article 191f and g of the Constitution The cancellation being under a valid law there can be no question of any right under article 31 of the Constitution having been infringed This brings us to the main contention pressed on behalf of the petitioners viz that the licensee has not been given a reasonable opportunity of being heard before the order of cancellation was made There can be no doubt that if a reasonable opportunity to be heard as against the proposed order of cancellation has not been given the order would be an unjustified interference with the petitioners right It is necessary therefore to examine the material on the record to see whether the petitioners have succeeded in showing that no reasonable opportunity has been given The requirement that a reasonable opportunity of being heard must be given has two elements The first is that an opportunity to be heard must be given the second is that this opportunity must be reasonable Both these matters are justiciable and it is for the Court to decide whether an opportunity has been given and whether that opportunity has been reasonable In the present case a notice to show cause against the proposed order was given it was stated in the notice that the ground on which the cancellation was proposed was that the licences had been obtained fraudulently and later on a personal hearing was given It must therefore be held that the requirement that an opportunity to be heard must be given was satisfied What the petitioners Counsel strenuously contends however is that though an opportunity was given that opportunity was not reasonable In making this argument he had laid special stress on the fact that particulars of the fraud alleged were not given and an opportunity to inspect the papers though repeatedly asked for was not given It is now necessary to consider all the circumstances in order to arrive at a conclusion whether the omission to give particulars of fraud and 418 inspection of papers deprived the petitioners of a reasonable opportunity to be heard There can be no invariable standard for reasonableness in such matters except that the Court s conscience must be satisfied that the person against whom an action is proposed has bad a fair chance of convincing the authority who proposes to take action against him that the grounds on which the action is proposed are either non existent or even if they exist they do not justify the proposed action The decision of this question will necessarily depend upon the peculiar facts and circumstances of each case including the nature of the action proposed the grounds on which the action is proposed the material on which the allegations are based the attitude of the party against whom the action is proposed in showing cause against such proposed action the nature of the plea raised by him in reply the requests for further opportunity that may be made his admissions by conduct or otherwise of some or all the allegations and all other matters which help the mind in coming to a fair conclusion on the question The action proposed in the present case viz the cancellation of the five licences was proposed on a tentative conclusion by Mr Bilgrami on the basis of the material in his possession that the five licences bad been obtained fraudulently The main grounds on which this tentative conclusion appears to have been based were that four applications three dated June 17 and one dated June 26 1958 similar in all particulars to the four which are now found in the office of the Joint Controller of Imports and Exports Bombay had been actually received but had been rejected and were lying in the Chief Controller s Office that four similar applications bearing the same dates and same particulars which were lying in the Bombay Office and also a fifth application dated July 22 were accompanied by five forwarding letters purporting to have been signed by Mr M L Gupta recommending the prayer for licence and containing a statement that the first respondent had authorised such issue of licences on those applications but these signatures purporting to have been of Mr M L Gupta were not really his 419 signatures that while the forwarding letters purported to state that the issue of these licences prayed for had been authorised by Mr Bilgrami as the Chief Controller of Imports and Exports New Delhi he himself knew that such issue had not been authorised by him We find that in the very notice that was given to the petitioners company to show cause against the proposed action of cancellation it was stated that these licences appeared to have been obtained by fraud On the question of particulars of fraud it has been stated by the first respondent in his affidavit that at that stage no particulars of the fraud could be given by him as they were unknown to him but that be did inform the petitioners representatives Mr Parikh a director of the Company the second petitioner Mr Rangwala who is the Chairman of the Company and the Company s solicitor Mr Hussaini Doctor of the general nature of the fraud In para 23 of his affidavit Mr Bilgrami has made the following statement I say that the Director of the petitioners Company Shri B K Parekh and Shri Rangwala and their attorney s partners Mr Huseni Doctor saw me on the 30th September 1958 I told them that the issue of the licences had not been authorised by me as they purported to be and that they had been obtained fraudulently though at that stage I was unable to say how exactly and by whom the fraud was committed As also the investigation by the Police was already in progress it was not possible to give minute particulars of the fraud When the petitioners were told as above the petitioners chairman started raising contentions suggesting that the fraud might have been committed by reason of the Gujarati Maharashtrian and anti Muslim feeling amongst the employees of his firm The affidavit in reply was sworn by Mr Rangwala himself We find therein repeated denials of Mr Bilgrami s assertion that the Company s representatives were told of the general nature of the fraud It was worth noting however that as regards the categorical statement made in para 23 as to what 420 Mr Bilgrami told Mr Rangwala and others and what they told him there is no clear denial Dealing with para 23 of Mr Bilgrimi s affidavit in para of his own affidavit in reply Mr Rangwala after saying that the first respondents statement does not say anything as to how exactly and by whom the fraud was committed but simply added that the first respondent did not say anything beyond the fact that the licences had been obtained by fraud It is significant that no specific denial was made of Mr Bilgrami s assertion that to Mr Rangwala Mr Parekh and Mr Huseini Doctor he had himself stated that the issue of the licences had not been authorised by him as they purported to be No less important is the fact that Mr Rangwala does riot deny the assertion made by Mr Bilgrami that he Mr Rangwala in the course of that interview on September 30 suggested that the fraud might have been committed by reason of certain feelings amongst the employees of his firm It is reasonable therefore to believe that besides stating that the licences had been obtained fraudulently Mr Bilgrami definitely informed the Company s representatives on September 30 1958 that though issue of the licences had been purported to be authorised by him with apparent reference to the forwarding letters recommending the issue of the licences this had not actually been authorised and further that on receipt of this information the Company s representatives instead of saying that no fraud had been practised and that Mr Bilgrami was making a mistake in thinking that he had not authorised the issue of the licences and that perhaps his memory had failed him took refuge behind the plea that it was not the Company but some enemy of the Company who had perpetrated the fraud The petitioners representatives had also an interview with Mr Sundaram on October 14 1958 While we have not got any statement of Mr Sundaram himself as to what happened in that interview we find apart from Mr Bilgrami s affidavit in para 24 that Mr Sundaram also informed the petitioners representatives at that interview that the recommendations 421 against which the disputed licences were granted to the petitioners were not genuine which assertion was repeated in slightly different words in para 29 the fact that the first respondent s letter dated December 18 1958 a copy of which Mr Rangwala annexed to his affidavit in reply concluded with the following words It may be stated that the fact that the following letters referred to above were not genuine were mentioned to the representatives of your firm when they interviewed Shri D R Sundaram Director Administration on October 14 1958 Though annexing a copy of this letter to his affidavit in reply Mr Rangwala did not state that this statement in the concluding portion of the letter was not true This justifies the conclusion that Mr Bilgrami s assertion that Mr Sundaram told the Company s representatives that the forwarding letters containing the recommendations on the basis of which the licences had been issued were not genuine is true Mr Bilgrami s statement in para 29 of his affidavit is that when Mr Sundaram informed the Company s representatives of this they had no explanation to give Dealing with para 29 of this affidavit in para 23 of his own affidavit Mr Rangwala did not state that Mr Sundaram did not tell them that the licences issued were on the basis of documents which were not genuine or that on being so told they had no explanation to offer On a consideration of the entire background in which the notice for cancellation was issued what was stated by the petitioners in their letter dated September 27 and what we find to have taken place at the interviews on the 30th September and the 14th October specially the fact that the Company s reprepresentatives appeared to have been more concerned to show that the Company was not a party to the fraud than to show that there was no fraud practised at all we are of opinion that the omission to give further particulars or inspection of papers did not deprive the petitioners of a fair chance of convincing Mr Bilgrami that the grounds on which cancellation of the licences was proposed did not exist or even if they existed 54 422 they did not justify cancellation of the licences We are therefore of opinion that the opportunity that was given to the petitioners in the present case amounted to a reasonable opportunity of being heard against the action proposed The petitioners are therefore not entitled to any relief The petition is accordingly dismissed with costs SUBBA RAO J I have had the advantage of perusing the judgment of my learned brother Das Gupta J I regret my inability to agree with his conclusion The facts are fully stated in the judgment of my learned brother and I shall therefore briefly restate only the material facts The first petitioner Ms Fedco Private Limited hereinafter called the Company is a Company registered under the Indian Companies Act having its registered office in Bombay It is engaged in the business of dyes chemicals plastics and various other goods The second petitioner is the Chairman and a Director of the first petitioner Company The Company sent five applications by registered post to the Chief Controller of Imports and Exports New Delhi hereinafter called the Chief Controller Three of the applications were dated June 17 1958 one was dated June 26 1958 and the last was dated July 22 1958 In the said applications the Company prayed for the issue of import licences to enable them to place orders and import different types of goods from West In regard to each of these applications received a letter purporting to be from the Chief Controller intimating them that their applications had be en forwarded to the Joint Chief Controller of Imports and Exports Bombay hereinafter called the Joint Controller with the necessary comments The Company acknowledged the receipt of these letters Thereafter five licences were received from the Office of the Joint Controller Bombay and two of them were dated July 24 1958 another two were dated August 16 1958 and the fifth was dated September 4 1958 On the basis of the said licences orders were 423 placed with a foreign company in West Germany and goods of considerable value actually arrived in the Bombay port By letter dated September 23 1958 the Joint Controller asked the Company to return the said five licences granted to them without entering into any commitments After some correspondence between the Company and the Chief Controller the former received a notice dated September 24 1958 from the latter to the effect that the Government had reason to believe that the said licences were obtained fraudulently and therefore they proposed to cancel the said licences unless sufficient cause was shown against such action being taken within ten days of the issue of the said notice On October 16 1958 the Company received an undated order from the Chief Controller purporting to cancel the said five licences The Com pany and their manager filed the present petition under Act 32 of the Constitution praying for a writ of certiorari or other appropriate writ quashing the order of the Chief Controller cancelling the said five licences and directing the Collector of Customs Bombay to assess the goods of the Company which had been imported into India and allow them to clear the same Mr Purshottam Trikamdas learned Counsel for the petitioners in support of his contentions raised before us two points viz 1 cls 9 and 10 of the Imports Control Order 1955 hereinafter called the Order where under the licences were cancelled infringe the fundamental rights of a citizen under article 191f and g of the Constitution inasmuch as the said provisions constitute an arbitrary and unreasonable restriction on the said rights and 2 the Chief Controller has not complied with the provisions of cl 10 of the Order as he failed to give the Company reasonable opportunity of being heard before the licences granted to them were cancelled and therefore the act of the Chief Controller in cancelling the licences infringes the rights of the Company under article 191f and g of the Constitution The first point need not be considered as I am clearly of the view that no reasonable opportunity within the meaning of cl 10 of the Order was given to the 424 petitioners by the Chief Controller The material parts of cls 9 and 10 of the Order read clause 9 Cancellation of Licences The Central Government or any other Officer authorised in this behalf may cancel any licence granted under this Order or otherwise render it ineffective a if the licence has been granted through inadvertence or mistake or has been obtained by fraud or misrepresentation Clause 10 Applicant or Licensee to be heard No action shall be taken under Clauses 7 8 or 9 unless the licenseeImporter has been given a reasonable opportunity of being heard It is not disputed that the Central Government delegated its powers to act under these clauses to the Chief Controller The first question is what is the scope of the enquiry under cl 10 of the Order Is it purely an administrative act or is it a quasi judicial act The criteria to ascertain whether a particular act is a quasijudicial act or an administrative one have been laid down with clarity by Lord Justice Atkin in Rex vs Electricity Commissioners Ex Parte London Electricity Joint Committee Co1 elaborated by Lord Justice Scrutton Rex vs London County Council Ex Parte Entertainments Protection Association Ltd 2 and authoritatively restated by this Court in Province of Bombay vs Khusaldas section Advani 3 They laid down the following conditions a the body of Dersons must have legal authority b the authority should be given to determine questions affecting the rights of subjects and c they should have a duty to act judicially All the three conditions are satisfied in this case Under the said clauses authority is conferred on the Central Government or any other officer authorized in this behalf to cancel any licence granted under the Order and the cancellation of a licence certainly affects the rights of subjects A clear duty to act judicially is imposed by cl 10 on the said authority He has to give to the affected party reasonable opportunity of of being heard It is therefore clear that under 1 2 3 425 cls 9 and 10 of the Order the Chief Controller performs a quasi judicial act and is therefore bound to follow the principles of natural justice in cancelling a licence Clause 10 clearly and without any ambiguity describes the principles of natural justice by using the three well known words and phrase viz reasonable opportunity and of being heard They imply that when the charge is one of fraud the affected party is entitled to know the particulars of fraud alleged to inspect the documents on the basis of which fraud is imputed to him and to a personal hearing to explain his case and to absolve himself of the charge made against him Without these elementary safeguards provided by the authority the opportunity to be heard given to the licensee becomes an empty formality With this background I shall scrutinize the relevant facts to ascertain whether any such reasonable opportunity was given to the petitioners in this case The question falls to be decided only on the affidavits filed by the parties I shall assume for the purpose of this petition that the affidavit filed by the Chief Controller represents what all had taken place between him and the representatives of the Company The notice dated September 24 1958 issued to the petitioners laconically states that the licences granted by the Joint Controller to the Company were fraudulently obtained and therefore it was notified that the Government of India in exercise of the powers specified in paragraph 9 of the Order proposed to cancel the said licences unless sufficient cause against the proposed action was furnished to the Chief Controller within ten days of the date of the issue of the notice On receipt of the said notice the petitioner Company sent a telegram through their Solicitors requesting the Chief Controller not to publish the said notification On September 26 1958 the Company s Solicitors sent another telegram to the Chief Controller requesting him to give them the particulars of the alleged fraud and to give them an appointment for inspection of papers and documents relied upon by the Chief Controller On September 27 1958 the Company sent a letter to 426 the Chief Controller pointing out the relevant facts and stating that the petitioner Company had accepted the licences honestly and had at no time any reason to doubt the bona fides of the grant of the licences to them that they suspected they were victims of foulplay by some persons interested in causing damage to them and to their reputation that Mr B K Parekh a Director of the petitioner Company and the Company s Solicitor Mr Hooseini Doctor met the Chief Controller on September 30 1958 and handed over the explanation to him and also personally told him that in the absence of any particulars of the alleged fraud and without inspection of the papers relied upon by the Chief Controller it was not possible for the petitioner Company to give a complete explanation and that the petitioners reserved their right to give further explanation on getting the said particulars and inspection of the said papers They also requested the Chief Controller to give the Company a personal hearing to meet the charges after giving the necessary particulars and the inspection of papers asked for The Chief Controller told them that the issue of the licences had not been authorized by him as they purported to be and that they had been obtained fraudulently though at that stage he was not able to say how exactly and by whom the fraud was committed He also did not give them the particulars of fraud The Director of the Company suggested that the fraud might have been committed by reason of the Gujarati Maharashtrian and anti Muslim feeling amongst the employees of the Company On behalf of the petitioner Company the Chief Controller was told that it was not possible for the Company to give a complete explanation and that they reserved their right to give further explanation The petitioners were not allowed inspection of the papers By their letter dated October 3 1958 the Company recorded what took place at the said interview and sent it to the Chief Controller The petitioners again wrote another letter to the Chief Controller reminding him that they had not received any particulars of the alleged fraud This letter was personally handed over to Mr Sundaram 497 the Director of Administration in the Office of the Chief Controller on October 14 1958 At that interview Mr Sundaram told the petitioners that the recommendations against which the disputed licences were granted were not genuine On October 16 1958 the Chief Controller cancelled the said five licences issued to the petitioner Company On the aforesaid facts which we have assumed for the purpose of this petition can it be said that the Chief Controller gave the petitioners a reasonable opportunity of being heard to enable them to establish that no fraud had been committed in getting the said licences The learned Solicitor General appearing for the respondents contended that the Company admitted the fraud that their only defence was that the fraud might have been committed by reason of the Gujarati Maharashtrian and anti Muslim feeling amongst the employees of the Company and that therefore the fact that the Chief Controller told the petitioners that the issue of the licences had not been authorized by him and the fact that Mr Sundaram told the petitioners on October 14 1958 that the recommendations against which the disputed licences were granted to the petitioners were not genuine were in the circumstances sufficient disclosure of the particulars of fraud and that therefore reasonable opportunity within the meaning of cl 10 of the order had been given to the petitioners I find it very difficult to accept this argument The argument assumes that the petitioner Company accepted the version given by the Chief Controller or by Mr Sundaram For the purpose of this petition it must be assumed that the petitioners were innocent The notice was given to them to show cause why the licences given to them should not be cancelled on the ground of fraud By letters and in person they requested the Chief Controller to give them the particulars of the fraud and to allow them to inspect the relevant documents so that they might give a further explanation to show cause against the cancellation of the licences The affidavit filed by the Chief Controller only discloses that he in his conversations with the Solicitor and the Director of 428 the Company mentioned to them that he did not issue the licences In the affidavit he admits that they asked for particulars and for the inspection of the documents but he says that the petitioners were told sufficiently what was against them and their demand for the inspection of the papers was mischievous But what he told them about the particulars of the alleged fraud is in his own words I told them that the issue of the licences had not been authorised by me as they purported to be and that they had been obtained fraudulently though at that stage I was unable to say how exactly and by whom the fraud was committed The conversation with Mr Sundaram on October 14 1958 does not carry the matter further He has not been authorized by the Central Government to make an enquiry and the fact that he told the petitioners that the recommendations against which the disputed licences were granted were not genuine even if true does not carry the matter any further The fact therefore remains that notwithstanding specific request by the petitioners no particulars were furnished to them no facilities for inspection of the relevant documents given and no date was fixed for the enquiry in regard to the alleged fraud The learned Solicitor General asked what was that that the petitioners could have gained if the particulars were given and if they were allowed to inspect the relevant documents This is a lopsided way of looking at things The question should have been what reasonable opportunity to be heard was given to the petitioners to establish their innocence That apart without apportioning any blame either on the petitioners or on the respondents many possibilities can be visualized viz i the petitioners were guilty of fraud they knew that their applications were rejected by the Chief Controller they got similar applications surreptitiously introduced in the Bombay Office with forged recommendations under the signature of the Deputy Chief Controller New Delhi Mr M L Gupta and obtained the licences by practising fraud on the Joint Chief Controller Bombay ii a third party 429 presumably a rival businessman or members of the staff of the Company evolved a complicated scheme of fraud to cause damage to the Company and their reputation the Company s enemies came to know that the applications of the Company were rejected then forged fresh applications got them surreptitiously introduced in the Bombay Office and got the licences issued in favour of the petitioners this is a rather far fetched theory iii after the applications were rejected fresh applications were filed in the New Delhi Office got forwarded to the Joint Chief Controller Bombay with the directions issued by the Deputy Chief Controller New Delhi iv the original applications filed by the Com pany were ordered and not rejected by the Chief Controller or his Deputy and they were sent in due course along with the recommendations duly signed by the Deputy Chief Controller to the Joint Controller Bombay and that the licences were issued in the usual course the Office of the Chief Controller New Delhi after realizing that licences were issued contrary to rules or orders that licences should not be issued in respect of goods to be imported from soft currency areas set up a false case of the original applications being rejected and the fresh applications substituted in the Bombay Office The aforesaid are some of the possibilities and there may be many others When notice was issued to the petitioners on the ground of fraud they were certainly entitled to the particulars thereof The Chief Controller could have given the following particulars i the petitioners applications were rejected on a particular date ii the orders of rejection were communicated to them on a particular date iii that he did not issue any letters to the petitioners as regards the forwarding of their applications or the recommendations to the Joint Chief Controller Bombay iv after the rejection of their applications the Office of the Chief Controller did not receive any letters from the petitioners v that the applications on which the licences were issued were not the same applications sent to the Delhi Office vi that the signature of Mr 55 430 M L Gupta was forged and vii that there is nothing in the Bombay Office to show that they received any applications from the Delhi Office If these particulars were given to the petitioners they might have by inspecting the documents proved that there was no fraud that there was no order rejecting the applications that the despatch book showed that the applications were forwarded to the Bombay Office and that the original applications were not in that Office that the despatch book and the receipt book showed the correspondence that passed between the Chief Controller and the petitioners and that the signature of Mr Gupta on the recommendations was genuine It is not as if the petitioners admitted that they committed the fraud When they were confronted with the notice unless the particulars were given to them and the documents shown to them it was not possible for them to know whether a fraud was committed at all and if committed how was it committed Only for the purpose of explaining that no fraud was committed by them they asked for the particulars for inspection of the relevant documents and for a personal hearing all these were denied to them In the circumstances I find it not possible to hold that the petitioners were given reasonable opportunity of being heard within the meaning of cl 10 of the Order The stakes are high and the order of cancellation was made arbitrarily and in utter disregard of the principles of natural justice I should not be understood to have expressed any opinion on the merits of the case It may be or it may not be that the petitioners were guilty of fraud but they should have been given a reasonable opportunity of being heard before they were condemned as having committed the fraud and their licences were cancelled 1 therefore direct the issue of a writ of certiorari quashing the order of the Chief Controller cancelling the licences granted to the petitioners ORDER OF COURT In accordance with the opinion of the majority the Petition is dismissed with costs

The Secretary of the Government of Bihar in the Revenue Department issued a notice to the petitioner company who were the lessees of mining lease charging it with violation of sections 10 12 and 14 Of the Bihar Mica Act 1947 and calling upon it to show cause why action should not be taken to cancel its licence which was being issued from year to year for mining Mica The company asked for particulars of the alleged violation of the provisions of the Act from the Government which was furnished The company sent a written representation to the Government denying the allegations After two years of the said representation the Government issued a notification cancelling the 78 610 petitioner company s licence under the provisions of section 251c Of the Act The company moved the Supreme Court under article 32 Of the Constitution for the issue of a writ of certiorari to quash the said order of the Government of Bihar cancelling the licence and for the issue of writ of mandamus directing them to forbear from giving effect to the said order of cancellation on ground inter alia that the Government acted illegally and with mala fides and infringed the fundamental rights of the petitioner under article 191 sub cls f and g of the Constitution and that the provision of section 251c of the Bihar Mica Act 1947 operate as an unreasonable restriction on the said right and even if the said section did not infringe its fundamental rights the order of the Government in cancelling the lease without affording it a reasonable opportunity to show cause within the meaning of the second proviso to that section infringed its fundamental rights Held that the provisions of section 251c of the Bihar Mica Act does not impose an unreasonable restriction on the fundamental rights under article 191f g of the Constitution The restrictions which a State is authorised to impose under cls 5 6 of article 19 of the Constitution in the interest of the general public over the fundamental rights of a citizen under sub cls f g of clause 1 of article 19 must be reasonable and must not depend upon the mere uncontrolled discretion of the executive It is the duty of this Court to decide having regard to the concept and principle of reasonableness which is correctly laid down in The State of Madras vs V G Row whether a particular Statute satisfied the objective test of reasonableness The statutory conditions of the Bihar Mica Act subject to which the licence is given are obviously reasonable and necessary for regulating the mining industry The power to cancel the licence which is conferred on the Government under section 25 Of the said Act is only to achieve the object of the Act ie to enforce provisions which have been enacted in the interest of the public and that power is exercisable on the basis of objective tests and in accordance with the principles of natural justice The general proposition that whenever discretionary power is conferred on a State Government or the Union Government by law the said law must necessarily operate as a reasonable restriction on a fundamental right negatives the concept of fundamental rights for the simple reason that fundamental rights are guaranteed against State action Therefore the conferment of such a power on the State Government and not upon a subordinate officer is only one of the considerations that may enter into the judicial verdict on reasonableness of a particular law and the reasonableness of that law falls to be decided only on the cumulative effect of the circumstances under which such power is conferred 611 The concept of reasonable opportunity is an elastic one and is not susceptible of easy and precise definition What is reasonable opportunity under one set of circumstances need not be reasonable under different circumstances It is the duty of the Court to ascertain in each case having regard to the overall picture before it to come to a conclusion whether reasonable opportunity is given to a person to show cause Tribunals or authorities who are entrusted with quasi judicial functions are as much bound by the relevant principles governing the doctrine of bias as any other judicial tribunal In the instant case the Revenue Minister had personal bias within the meaning of the decisions and he should not have taken part in either initiating the enquiry or in cancelling the licence Neither the necessary conditions to enable the Government to take action under section 251c Of the Act has been established nor the State Government has afforded reasonable opportunity to the petitioner within the meaning of the second proviso to section 251 Of the Act State of Madras vs V G Row followed Thakur Raghubir Singh vs Court of Wards Ajmer held inapplicable

Appeal No327 of 1955 Appeal by special leave from the judgment and order dated January 311955 of the Bombay High Court in Special Civil Application No 1100 of 1954 V M Limaye section N Andley J B Dadachanji and Rameshwar Nath for the appellants N P Nathwani K L Hathi and R H Dhebar for the respondent December 7 The Judgment of the Court was delivered by section E Das J section K DAS J This is an appeal by special leave from a decision of the High Court of Bombay dated January 31 1955 by which it dismissed with costs a writ application No 1100 of 1954 made by the petitioners therein who are now appellants before us It raises for consideration and decision a land revenue 395 problem of some complexity which resulted from the enactment of the Bombay Taluqdari Tenure Abolition Act 1949 Bombay Act LXII of 1949 hereinafter referred to as the Abolition Act The problem is if the appellants holders of certain lands known as Lalliti lands are liable to the State Government concerned for payment of land revenue under the provisions of the Bombay Land Revenue Code 1879 Bombay Act V of 1879 hereinafter referred to as the Revenue Code after the enforcement of the provisions of the Abolition Act The problem has to be considered in the light of certain incidents of taluqdari tenures in the Ahmedabad district of Gujrat with special reference to the changes through which those tenures had gone in the past by legislation or otherwise For the purposes of this appeal it is not necessary to give a full history of taluqdari estates in Gujrat but it is necessary to explain what is meant by Lal liti lands We get from such books as Baden Powell s Land systems of British India and Dandekar s The law of Land Tenure in the Bombay Presidency from both of which learned counsel for the parties have extensively quoted before us a short history of the Taluqdars of Gujrat and of their estates Shortly stated the history is this Taluqdars of Gujrat they were not known as Taluqdars then because the name was given much later originally occupied the position of Chiefs or Rulers This was before the Mahomedan rule in Gujrat When the Mahomedans invaded Gujrat they found the country partitioned out into estates of large or small Chiefs whom they forcibly deprived of all but one fourth of their possess ions and the portion thus left took the name of wanta divided Some wantas were free of payment of pent or revenue other wanta estates paid a tribute in the shape of an udhad jama fixed sum After the Moguls came the Marathas The accession and domination of the Marathas made no substantial difference to the position of these semi independent chiefs except that the annual payments varied under the Maratha rule Then came the British who for sometime continued 396 to realise annual payments according to past years but very soon a significant change took place and the nature of the payment was altered and instead of tribute the Government assumed it to be rent or revenue The rent or revenue was also increased by about 50 per cent and the result was that the holders of these lands fell into pecuniary embarrassment and became impoverished and needy A system of annual leases was then introduced this remedy however proved worse than the disease and it was sought to improve the position of the Taluqdars by legislation it is not necessary for our purpose to refer to the details of that legislation till we come to the Gujrat Taluqdars Act 1888 Bombay Act VI of f888 which was a landmark in the history of Taluqdari tenures We shall have occasion later to refer to some of the provisions of this Act It is sufficient to state here that by the time the aforesaid Act was passed the Taluqdars of certain districts of Gujrat including Ahmedabad had really become mere owners of proprietary estates who held lands directly from Governmentand the Act provided inter alia for the revenue administration of their estates Under the provisions of the Act the Settlement Registers were prepared for each village which served the purpose of the Record of Rights in those estates In these estates large areas of lands were granted presumably by the Taluqdars to cadets widows of the family and relations for maintenance and to village servants and others either in reward for past services or as remuneration for services to be performed The holders of these transferred lands paid no revenue either to the Taluqdar or to Government generally These grants fell into three categories i those made prior to British rule ii those made between 1818 and 1888 that is after the introduction of British rule and before the passing of the Gujrat Taluqdars Act 1888 and iii those made after 1888 The lands thus transferred were called Lal liti lands because they were recorded inred ink in the old faisal patrakas and in the Settlement Registers also they were recorded in red ink but were shown as subject to jama land revenue 397 liabilities of varying character The pre British transfers were recognised by Mr Peile later Sir James Peile who was the Taluqdari Settlement Officer 1866 and the holders of these lands generally paid no jama The 1818 1888 transfers were those which were not so recognised by prescription and when these lands reverted to the Taluqdar they became his ordinary lands liable to payment of full jama The post Act grants were covered by section 31 of the Gujrat Taluqdars Act 1888 see in this connection The Land Problems of Re organised Bombay State by Dr G D Patel pp 174 175 Such in brief is the history of Taluqdari estates and Lal liti lands so far as that history has a bearing on the problem before us It is necessary now to state the facts which have given rise to the present appeal In their writ petition to the High Court the appellants said that they were holders of Lal liti lands in villages Kharad and Rajka of the Dhanduka taluq of Ahmedabad district and were enjoying the lands without payment of any jama land revenue since the pre British rule though the circumstances in which their predecessors originally got the lands are lost in antiquity They said inter alia that the exemption from payment of land revenue which they had all along enjoyed was not affected by the Abolition Act or by any later legislation like the Bombay Personal Inams Abolition Act 1952 Bombay Act LXII of 1953 and that the demand for payment of land revenue made by the State Government of Bombay for 1950 1953 was not authorised by law In the alternative they also said that they were not liable to any assessment of land revenue till August 1953 Accordingly they prayed for appropriate writs a quashing the demands for payment of land revenue and b directing the State of Bombay the Collector of Ahmedabad and the Revenue Officer of Dhanduka who are now respondents before us to forbear from taking any steps to enforce payment of land revenue for the Lal liti lands held by them A number of similar applications presumably filed by other holders of Lal liti lands were also pending in the High Court 51 398 So far as we can gather from the record before us there were three sets of such applications The High court delivered its leading judgment on writ application No 1098 of 1954 and the application of the appellants herein No 1100 of 1954 was dismissed with costs on the grounds given in the leading judgment The High Court held in effect that the holders of Lal liti lands were liable to payment of land revenue under section 5 of the Abolition Act read with the provisions of the Revenue Code and the objections raised thereto on their behalf were not legally valid Having been unsuccessful in their application for a certificate under Article 1331c of the Constitution the appellants applied for and obtained special leave from this Court on June 29 1955 They then preferred the present appeal Learned counsel for the appellants has challenged the correctness of the decision of the High Court on various grounds It will be convenient to take these one by one The first point urged is that the relevant provisions of the Abolition Act do not apply to Lal liti lands which are not taluqdari lands within the meaning of the Abolition Act and therefore no liability for payment of land revenue in respect of Lal liti lands can arise under section 5 thereof At this stage we must read the relevant provisions of the Abolition Act The expressions Taluqdari land and Taluqdari tenure are defined in section 2 clauses 3 and 4 Section 2 1 lA 2 3 Taluqdari land means land forming part of a taluqdari estate and includes land forming part of such estate and held by a cadet of a taluqdar s family for the purpose of maintenance 4 Taluqdari tenure means land tenure on which the taluqdari land is held Section 3 states With effect from the date on which this Act comes into force 399 ithe taluqdari tenure shall wherever it prevails be deemed to have been abolished iisave as expressly provided by or under the provisions of this Act all the incidents of the said tenure attaching to any land comprised in a taluqidari estate shall be deemed to have been extinguished Section 5 which is of great importance for the purpose of this appeal read as follows before it was amended in 1953 Section 5 1 Subject to the provisions of subsection 2 aall taluqdari lands are and shall be liable to the payment of land revenue in accordance with the provisions of the Code and the rules made there under and ba taluqdar holding any taluqdari land or a cadet of a taluqdari family any taluqdari land hereditarily for the purpose of maintenance immediately before the coming into force of this Act shall be deemed to be an occupant within the meaning of the Code or any other law for the time being in force 2Nothing in sub section 1 shall be deemed to affect athe right of any person to hold any taluqdari land wholly or partially exempt from payment of land revenue under special contract or any law for the time being in force bthe right of any person to pay Jama under any agreement or settlement recognised under section 23 or under a declaration made under section 22 of the Taluqdars Act so long as such agreement settlement or declaration remains in force under the provisions of this Act Now the argument on behalf of the appellants has proceeded on the following lines learned counsel for them has submitted that the expression Taluqdari land is defined as land forming part of a taluqdari estate but the expression taluqdari estate is not defined though the expression Taluqdari tenure is defined therefore taluqdari estate can only mean 400 such land or estate in which the taluqdar has some subsisting interest but in Lal liti lands at least of the taluqdar retains no interest after the grant and therefore Lal liti land is not taluqdari land within the meaning of section 5 of the Abolition Act We have now to consider the soundness of this line of argument In the High Court as also before us an attempt was made on behalf of the respondents to establish that the taluqdar retained a reversionary right to Lalliti lands in case the holder died without any heir The High Court said rightly in our opinion that on the materials placed before it it could not be said that the respondents had established that position The High Court then considered the meaning of the expression taluqdari estate and said that it was used in a descriptive sense and was not equivalent to the expression Taluqdar sestate Said the High Court Therefore the expression Taluqdari estate is a comprehensive expression including all lands which at one time belonged to the Taluqdar In the eye of the law although the lands might have been alienated by the Taluqdar they still form part of the estate Therefore the expression is more an expression indicating a particular tenure rather than a particular interest enjoyed by the Taluqdar Therefore if the lands the subject matter of the petition did at any time belong to the Taluqdar which he subsequently alienated they would be covered by the definition in the Act of 1949 not withstanding the fact that when the Act was passed the Taluqdar had no interst in those lands We are in agreement with the view thus expressed by the High Court Having regard to the history of the gig Lal liti lands to which we have earlier adverted and the provisions of the Gujrat Taluqdars Act 1888 it is manifestly clear that Lal liti lands are lands which form part of a taluqdari estate even though no jama was actually paid for such lands to the taluqdar or to Government It is necessary to refer here 401 to sections 4 5 and 22 of the Gujrat Taluqdars Act 1888 Section 4 empowers the Government to direct a revenue survey of any Taluqdari estate section 5 lays down what particulars the Settlement Registers prepared by the Survey Officer in respect of a taluqdari estate shall contain One of such particulars is the name and description and the nature and extent of interest of every alienee and of every incumbrancer of the estate or any portion thereof together with a specification of i the aggregate area over which such interest extends ii the amount and nature of rent or land revenue if any payable or receivable by such alienee and incumbrancer etc It is not disputed before us and the High Court has referred to it that in the Settlement Registers prepared in respect of the two villages in question under section 5 of the Gujrat Taluqdars Act 1888 the interest of the appellants in the Lal liti lands held by them was shown as comprised within the Dhanduka Taluqdari estate This clearly showed that these Lal liti lands formed part of a taluqdari estate apart altogether from the question what interest if any the taluqdar retained in them after the alienation Section 22 of the Gujrat Taluqdars Act 1888 also points the same way It lays down how the jama of a taluqdar s estate is to be calculated it says that the aggregate of the survey assessments of the lands composing such estate minus such deduction if any as the Government shall in each case direct shall be the jama Along with their petition the appellants filed an annexure marked A that annexure besides showing the lands of the appellants within a taluqdari estate also showed the Jama payable for each plot of land This again showed that whether the jama be actually paid or not the Lal liti lands held by the appellants formed part of a taluqdari estate We accordingly hold that learned counsel for the appellants is not right in his contention that Lal liti lands are not part of a taluqdari estate and therefore are not taluqdari lands within the meaning of the Abolition Act Learned counsel for the appellants referred us to certain decisions of the Bombay High Court as to the 402 meaning of the expression Taluqdar s estate in section 31 of the Gujrat Taluqdars Act 1888 and contended that it meant an estate held by the Taluqdar as a Taluqdar and on the same analogy he urged that land forming part of a taluqdari estate must also mean land in which the taluqdar has some interest as a taluqdar Khoda Bhai vs Chaganlal 1 Bichesbha Mansangji vs Vela Dhanji Patel 2 and Taluqdari Settlement Officer vs Chhagan Lal Dwarkadas 3 We do not think that those decisions are of any help to the appellants for the simple reason that the analogy does not apply we are concerned here not with the meaning of the expression taluqdar s estate occurring in section 31 of the Gujrat Taluqdars Act 1888 but with the meaning of a different expression viz taluqdari estate in section 23 of the Abolition Act Moreover in some of the decisions relied on by the learned counsel it was recognised that there was a distinction between taluqdar s estate and taluqdari estate We were also addressed at some length on the effect of the relinquishment of his land by the taluqdar in favour of the Collector Nathuram Hiraram Thakur vs The Secretary of State for India4 or the effect of an attachment of the village under section 144 of the Revenue Code on failure of the taluqdar to pay the assessment Tulla Sobharam Pandya vs The Collector of Kaira 5 We do not think that it is necessary in the present case to consider those questions We now go to the second point urged on behalf of the appellants This point was not urged before nor considered by the High Court in the writ application in which it gave its leading judgment The appellants wished to urge the point in the High Court on their own application but were told that if the decision of the High Court in Writ Application No 1098 of 1954 was wrong it could be corrected only by this Court The argument on this point is based on section 51 of the Abolition Act which we have quoted earlier and is in two parts firstly it is contended that if clauses a 1 2 3 191O 4 5 403 and b of sub section 1 of section 5 are read together the only reasonable conclusion is that clause a is merely declaratory and clause b is the operative clause and according to that operative clause the persons who become liable for payment of land revenue are only two in number namely 1 a taluqdar holding any taluqdari land and 2 a cadet of a taluqdari family holding any taluqdari land with hereditary rights for the purpose of maintenance immediately before the coming into force of the Abolition Act and therefore the holder of Lal liti lands assuming them to be taluqdari lands has no liability under section 51 secondly it is contended that even if clauses a and b of subsection 1 of section 5 are read distributively the holder of Lal liti lands has still no liability because cl a makes taluqdari lands liable to the payment of land revenue in accordance with the provisions of the Revenue Code and there is no provision in that Code under which a Lal liti holder can be made liable to the payment of land revenue We take the first part of the argument first How should we read clauses a and b of sub section 1 of section 5 of the Abolition Act Learned counsel for the appellants states that if clause a is also read as a clause which operates to charge all taluqdari lands with liability for payment of land revenue then clause b becomes a wholly unnecessary surplusage On the other hand learned counsel for the respondents points out that if the intention was to fasten liability on two categories of persons only taluqdars and cadets then clause a was really unnecessary We think that both the clauses have a meaning and purpose Clause a makes all taluqdari lands liable to the payment of land revenue in accordance with the provisions of the Revenue Code Section 3 of the Abolition Act abolishes taluqdari tenure and extinguishes all its incidents If there was only abolition of taluqdari tenures without anything more there would have been a void Obviously enough it was necessary to say what would happen to taluqdari lands after abolition of the taluqdari tenure Therefore clause a states that all taluqdari lands shall be liable 404 to the payment of land revenue in accordance with the provisions of the Revenue Code What then is the meaning of clause b It is a deeming provision by which the taluqdar and his cadet shall be deemed to be an occupant within the meaning of the Revenue Code and I occupant under the Revenue Code means a holder in actual possession of unalienated land The word alienated has also a special meaning in the Revenue Code it means I transferred in so far as the rights of Government to payment of rent or land revenue are concerned wholly or partially to the ownership of any person Clause b merely clarifies the position of the taluqdar and his cadet under the Abolition Act it does not in any way derogate from clause a nor does it cut down the width of amplitude of clause a We are of the view that clauses a and b should be read together but not in the sense suggested by the learned counsel for the appellants Clause b clarifies the position as respects two categories of persons but that does not mean that if a third category of persons properly come under clause a they will not be liable to payment of land revenue on a specious and unwarranted assumption that clause b as the operating clause cuts down the amplitude of clause a The true view is that clause a is a general provision and applies the Revenue Code to all taluqdari lands while clause b is a particular deeming provision with regard to the taluqdar and his cadet Now as to the second part of the argument It is necessary to read here section 1361 of the Revenue Code Section 136 1 In the case of unalienated land the occupant and in the case of alienated land or taluqdari land the superior holder shall be primarily liable to the State Government for the payment of the land revenue including all arrears of land revenue due in respect of the land Joint occupants and joint holders who are primarily liable under this section shall be jointly and severally liable The question is if the holder of Lal liti lands is after the Abolition Act an occupant of unalienated 405 land within the meaning of section 136 if he is then he is liable to the payment of land revenue under section 51a of the Abolition Act read with section 136 of the Revenue Code In dealing with this question which has caused us some anxiety we must remember the meaning of the expressions occupant and alienated used in the Revenue Code The argument on behalf of the appellants is that a Lal liti holder is not an occupant of unalienated land the respondents contend that he is after the enforcement of the Abolition Act On a careful consideration of the question we have come to the conclusion that the contention of the respondents is correct In respect of Lal liti lands Government made no separate settlement with the holder of such lands the settlement was made with the taluqdar within which settlement Lal liti lands were included The right of Government to payment of land revenue was never transferred to the holder of Lal liti lands though it is true that some of the taluqdars got a deduction under section 22 of the Gujrat Taluqdars Act 1888 for the Lal liti lands We have been addressed at some length as to what was the position of taluqdars and Lal liti holders previous to the Abolition Act On behalf of the respondents it has been submitted that one characteristic of the taluqdari tenure was that the taluqdari estate was neither alienated nor unalienated within the meaning of the Revenue Code because the taluqdars were not grantees of the British but enjoyed proprietary rights in their estates even before the advent of British rule As to Lal liti lands they were not generally taken into account at the time of calculating the jama payable by the taluqdars to Government and as a result they were not covered by the Settlement guarantee operating in favour of the taluqdar Therefore so the argument on behalf of the respondents has proceeded holders of Lal liti lands became liable to payment of full assessment on the footing that they became occupants 52 406 of unalienated land with effect from the date on which the Abolition Act came into force Learned counsel for the respondents has also drawn our attention to the list of amendments in the Revenue Code made by Schedule 1 of the Abolition Act in support of his contention that the taluqdars and all taluqdari lands have been brought into the scheme of the Revenue Code by the necessary amendments of section 136 and other sections of the Revenue Code The narrow question before us is as we have stated earlier whether a Lal liti holder is an occupant of unalienated land within the meaning of the Revenue Code We are of the view that whatever may have been his position earlier on the abolition of the taluqdari tenure by the Abolition Act he became a holder in actual possession of land in respect of which the Government had not transferred its rights to the payment of revenue wholly or partially to the ownership of any person Therefore the second point urged on behalf of the appellants fails in both parts We need notice very briefly three other points urged on behalf of the appellants because we are in such complete agreement with the High Court with regard to them that it is unnecessary to re state in detail the reasons which the High Court has already given 1 As to the saving clause c of section 17 of the Abolition Act the High Court has rightly pointed out that it is the usual saving clause which says in effect that the repeal of the Gujrat Taluqdars Act 1888 shall not be deemed to effect any declaration made or any agreement or settlement recognised etc under the provisions of the repealed Act The aforesaid saving clause affords no protection against the liability imposed by section 5 of the Abolition Act 2 Learned counsel also relied on section 52a of the Abolition Act before its repeal by the Bombay Personal Inams Abolition Act 1952 Bombay Act 42 of 1953 and based his alternative claim thereon Here again the High Court rightly pointed out that there was no special contract in favour of the appellants as to exemption from payment of land revenue 407 nor was there any law for the time being in force after the Abolition Act which granted the holder of Lal liti lands exemption wholly or partially from pay ment of land revenue therefore the appellants were entitled to no protection under section 52a of the Abolition Act till August 1 1953 3 Lastly it was submitted that there was a settlement for thirty years with the taluqdari estate in question in 1925 26 and in the absence of any fresh settlement under the provisions of the Revenue Code a Lal liti holder was not liable to pay land revenue within that period This point is completely answered by section 4 of the Abolition Act which in terms says that all revenue surveys or revised revenue surveys of taluqdari estates under section 4 of the Gujrat Taluqdars Act 1888 and all settlement made shall be deemed to have been made under Chapters VIII and VIIIA of the Revenue Code and the settlement registers and other records prepared at such surveys shall be deemed to have been prepared under the corresponding provisions of the Revenue Code We know that the Lal liti lands of this case were shown in the Settlement Registers prepared under the Gujrat Taluqdars Act 1888 In view of the provisions of section 4 of the Abolition Act no fresh settlement was necessary For the reasons given above we hold that the appellants have failed to show that the decision of the High Court is wrong The appeal is accordingly dimissed with costs Appeal dismissed

The appellant company insured a car belonging to re spondent No 1 and issued a policy which contained inter alia the following terms All differences arising out of this policy shall be referred to the decision of an arbitra tor to be appointed by the parties If the company shall disclaim liability to the insured for any claim here under and such claim shall not within twelve calendar months from the date of such disclaimer have been referred to arbitration then the claim shall have been deemed to have been abandoned and shall not be recoverable The car was lost and the company through its Branch Manager disclaimed liability on three different dates The insured did not take any action in regard to the appointment of an arbitra tor until more than twelve months after the last disclaimer by the company The case of the company was that the in sured must be deemed to have abandoned his claim by virtue of the contract of insurance policy while the respondent averred that there was never any valid disclaimer by the company of its liability as the Branch Manager had no au thority to disclaim the liability and it could have been disclaimed only by the resolution of the company The company presented the present application under see 33 of the Indian Arbitration Act praying for a declaration that the reference to arbitration was illegal and the award if made by the arbitrator would not bind the company It was contended on its behalf that the arbitration clause had ceased to be 65 502 operative and the question as to the existence and validity of the Arbitration agreement was triable by the court under sec 33 of the Arbitration Act and not by the arbitrator Held i that the point on which the parties were in dispute was a difference arising out of the policy because recourse to the contract by which both the parties were bound was necessary for the purpose of determining the matter in dispute between them as there was no contention raised in the present case by either of the parties that there was no contract entered into at all or that it was void ab initio and therefore the arbitrator had jurisdic tion to decide the matter referred to him A contention that the arbitration agreement has ceased to be applicable or that it no longer subsists will not oust the jurisdiction of the arbitrator ii No question of determining the effect of the arbitra tion within the meaning of sec 33 arose because there was no dispute between the parties as to what it meant AM Mair and Co vs Gordhandas Sagarmull 1950 SCR 792 Heyman vs Darwins Ltd 1941 1 AER 337 Mecaura vs Northern Assurance Co 1925 AC 619 Stebbing vs Liverpool London and Globe Insurance Co Ltd 1917 2 KB 433 referred to

minal Appeals Nos 36 to 38 of 1955 Appeals from the judgment and order dated the 14th February 1955 of the Punjab High Court Circuit Bench Delhi in Criminal Writs Nos 36 D 37 D and 52 D of 1954 C K Daphtary Solicitor General of India N section Bindra and R H Dhebar for the appellants N C Chatterjee A N Sinha and N H Hingorani for the respondents December 16 The judgment of Sinha C J Gajendragadkar Das Gupta and Shah JJ was delivered by Gajendragadkar J Subba Rao J delivered a separate judgment GAJENDRAGADKAR J These three appeals which have been filed in this Court with certificates issued by the Punjab High Court under article 1321 of the Constitution are directed against the orders passed by the said High Court by which cl 11B of Iron and Steel Control of Production Distribution Order 1941 hereinafter called the Order has been declared unconstitutional and inoperative and the criminal proceedings commenced against Ms Bhana Mal Gulzari Mal and others under the said clause 11B read with section 7 of the Essential Supplies Temporary Powers Act 1946 Act XXIV of 1946 hereinafter called the Act have been quashed Ms Bhana Mal Gulzari Mal Ltd is a private limited company having its registered office at Chawri Bazar Delhi Since 1948 it has been registered as a stockholder by the Iron and Steel Controller hereinafter called the Controller under cl 2d of the Order It appears that 630 under cl 11B of the Order notifications had been issued from time to time giving a schedule of base prices in respect of iron and steel On December 10 1949 the Controller issued a notification under cl 11B decreasing by Rs 30 per ton the prices already fixed for all categories of steel Several criminal cases were instituted Nos 385 410 of 1954 against the said company its three directors its general manager and two salesmen hereinafter called respondents 1 to 7 on the allegation that they had sold their old stock of steel for prices higher than those prescribed by the said notification of December 10 1949 When the respondents had thus to face several criminal proceedings they filed three writ petitions in the Punjab High Court against the Union of India the State of Punjab and others hereinafter called the appellants By their Writ petition No 36 of 1954 23 3 54 they prayed for a direction order or writ restraining the appellants from enforcing or giving effect to cl 11B or the said notification as well as a writ or order quashing the criminal proceedings commenced against them The decision in this writ petition has given rise to Criminal Appeal No 36 of 1955 Writ Petition No 37 of 1954 23 3 54 prayed for a similar order specifically in respect of the criminal cases Nos 385410 of 1954 then pending against the respondents and asked for an interim stay of the said proceedings The order passed on this writ petition has given rise to Criminal Appeal No 37 of 1955 It appears that under some of the criminal proceedings filed against the respondents orders for search had been passed by the trial Magistrate on May 12 1953 These orders were challenged by the respondents by their Writ Petition No 52 D of 1954 7 4 54 An appropriate writ was asked for quashing the warrants issued under the said orders From the orders passed on this writ petition Criminal Appeal No 38 of 1955 arises In all these writ petitions the respondents contention was that cl 11B was invalid and unconstitutional as it violated articles 191f and g as well as article 31 of the Constitution They also urged that the said clause was ultra vires the powers 631 conferred on the Central Government by section 3 of the Act The notification issued by the Controller on December 10 1949 was challenged by the respondents on the ground that it was issued under a clause which was invalid and was otherwise unreasonable and void In substance the High Court has upheld the respondents plea that cl 11B is ultra vires as it is violative of the fundamental rights guaranteed under articles 19 1f and g of the Constitution In the present appeals the appellants seek to challenge the correctness of this conclusion Thus the main point which calls for our decision in this group of appeals is whether cl 11B of the Order is valid or not The impugned clause forms part of the Order which has been issued by the Central Government in exercise of its powers conferred by sub r 2 of r 81 of the Defence of India Rules Before considering the appellant s contention that cl 11B is valid it would be necessary to refer briefly to the parent Act and to trace the vicissitudes through which it has passed to examine its material provisions and their effect on the controversy in the present appeals It is well known that on September 29 1939 the Defence of India Act was passed to provide for special measures to ensure the public safety and interest and the defence of British India and the trial of certain offences The Act and the Rules framed thereunder were enacted to meet the emergency which had arisen as a result of the Second World War Rule 812b of the Rules authorised the Central Government inter alia so far as appears to it necessary or expedient for securing the defence of British India or the efficient prosecution of war or for maintaining supplies and services essential to the life of the community to provide by order for controlling the prices or rates at which articles or things of any description whatsoever may be sold or hired and for relaxing any maximum or minimum limits otherwise imposed on such prices or rates This Act was followed by Ordinance No XVIII of 1946 which was promulgated on September 25 1946 Clauses 3 and 4 of this Ordinance are relevant for our 632 purpose Clause 31 provides inter alia that the Central Government so far as it appears to it necessary or expedient for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices may by notified order provide for regulating or prohibiting the production supply and distribution thereof and trade and commerce therein sub cl 2c adds inter alia that without prejudice to the generality of the powers conferred by sub section 1 an order made thereunder may provide for controlling the prices at which any essential commodity may be bought or sold This Ordinance was issued to provide for the continuance during a limited period of powers to control the production supply and distribution of and trade and commerce in certain commodities which were treated as essential for national economy The essential commodities which were covered by the Ordinance were defined by cl 2a as meaning any of the classes of commodities specified they included iron steel and coal Having provided for the delegation of the specified powers to the Central Government under cl 3 the Ordinance provided for sub delegation by cl 4 Under this clause the Central Government was authorised to direct by a notified order that the power to make orders under cl 3 shall in relation to such matters and subject to such conditions if any as may be specified in the direction be exerciseable by a such officer or authority subordinate to the Central Government or b such Provincial Government or such officer or authority subordinate to a Provincial Government as may be specified in the direction This Ordinance was later followed by the Act Act XXIV of 1946 which was passed on November 19 1946 The preamble to the Act the definition of essential commodity and the provisions for delegation and sub delegation which were included in the Ordinance have been re enacted by the Act The life of the Act thus passed was continued from time to time until the Essential Commodities Act No 10 of 1955 was put on the statute book as a permanent measure The provisions of the Defence of India Act and the 633 Rules framed thereunder came into force to meet the emergency created by the war but even after the war came to an end and hostilities ceased the emergency created by the war continued and the economic problems facing the country needed the assistance of similar emergency provisions That explains why those provisions have continued ever since 1939 The Order of which cl 11B is a part was issued on July 26 1941 by the Central Government in exercise of the powers conferred on it by r 812 of the Defence of India Rules which correspond to the provisions of section 3 of the Act It may be pointed out that as a result of the combined operation of cl 5 of Ordinance XVIII of 1946 and section 7 of the Act the Order must now be deemed to have been issued under section 3 of the Act It is necessary to examine briefly the broad features of the scheme of this Order The Controller specified in the Order is the person appointed as Iron and Steel Controller by the Central Government and includes any person described by cl 2a of the Order The Order applies to all iron and steel of the categories specified in its Second Schedule Clauses 4 and 5 regulate the acquisition and disposal of iron or steel and cl 8 requires that the use of iron and steel must conform to the conditions governing the acquisition This clause shows that in exercise of the powers conferred on the Controller by the proviso to it the Controller has to take into account the requirements of persons holding stocks the requirements of persons needing such stocks the transport facilities available and any other factor including a strike or lock out affecting the production or fabrication Clauses 10B and 10C empower the Controller to direct sale of iron and steel in cases specified in the said clauses Clause 11A authorises the Controller where he is satisfied that such action is necessary in order to co ordinate the production of iron and steel with the demands of iron or steel which have arisen or are likely to arise to prohibit or require production of the said commodities in the manner indicated by sub cls a b and c therein That takes us to cl 11 B the validity of which 81 634 falls to be considered in the present appeals It reads thus 11B Power to fix prices 1 The Controller may from time to time by notification in the Gazette of India fix the maximum prices at which any iron or steel may be sold a by a producer b by Stockholder including a Controller Stockholder and c by any other person or class of persons Such price or prices may differ from iron and steel obtainable from different sources and may include allowances for contribution to and payment from any Equalisation Fund established by the Controller for equalising freight the concession rates payable to each producer or class of producers under agreements entered into by the Controller with the producers from time to time and any other disadvantages The Controller may also by a general or special order in writing require any person or class of persons enumerated above to pay such amount on account of allowances for contribution to any Equalisation Fund within such period and in such manner as the Controller may direct in this behalf 2 For the purpose of applying the prices notified under sub clause 1 the Controller may himself classify any iron and steel and may if no appropriate price has been so notified fix such price as he considers appropriate Provided that the Controller may direct that the maximum prices fixed under sub clause 1 or 2 shall not apply to any specified stocks of iron or steel and may in respect of such stocks specify the maximum prices at which such iron or steel may be sold and communicate the same in writing to the persons concerned and any person or persons holding such stocks of iron and steel for which prices have been so specified shall at the time of the sale of such iron or steel or part thereof mention the number and date of the order of the Controller in every Cash Memo Bill or other document evidencing the sale or disposal out of the respective stocks to which the order of the Controller applies 635 3 No producer or stockholder or other person shall sell or offer to sell and no person shall acquire any iron or steel at a price exceeding the maximum prices fixed under sub clause 1 or 2 Clause 12 gives power to the Central Government to give directions to the Controller or other authorities in respect of the procedure to be followed by them in exercising their powers and generally for the purpose of giving effect to the provisions of the Order It would thus be seen that in issuing this Order the Central Government have prescribed a self sufficient scheme for regulating the production supply and distribution of steel and iron at fair prices The Controller is required to take an over all view of the needs of national economy in respect of steel and iron and to issue appropriate directions in order to effectuate the policy of the Act The appellants contention is that if cl 11 B is considered in the light of the scheme which the Order has in view it cannot be said that the said clause is violative of articles 191f and g of the Constitution Before we address ourselves to the question about the vires of cl 11B it is necessary to make it clear that the validity of sections 3 and 4 of the Act has not been disputed before us and indeed it cannot be disputed in view of the decision of the Court in Harishankar Bagla Anr vs The State of Madhya Pradesh 1 The challenge to the vires of cl 11B has therefore to be examined on the basis that sections 3 and 4 of the Act are valid It is relevant to set out the implications of this position When it is assumed that sections 3 and 4 are valid it necessarily means that they do not suffer from the vice of excessive delegation When the Legislature delegated its authority to the Central Government to provide by order for regulating or prohibiting the production supply and distribution of steel and iron it had not surrendered its essential legislative function in favour of the Central Government The preamble to the Act and the material words used in section 31 itself embody the decision of the Legislature in the matter of the legislative policy and their effect is to lay 1 636 down a binding rule of conduct in the light of which the Central Government had to exercise its powers conferred on it by section 3 The Legislature has declared its decision that the commodities in question are essential for the maintenance and pi ogress of national economy and it has also expressed its determination that in the interest of national economy it is expedient that the supply of the said commodities should be maintained or increased as circumstances may require and the commodities should be made available for equitable distribution at fair prices The concept of fair prices which has been deliberately introduced by the Legislature in section 3 gives sufficient guidance to the Central Government in prescribing the price structure for the commodities from time to time With the rise and fall of national demand for the said commodities or fluctuations in the supplies thereof the chart of prices may in the absence of well planned regulation prove erratic and prejudicial to national economy and without rational and well planned regulation equitable distribution may be difficult to achieve and so the Legislature has empowered the Central Government to achieve the object of equitable distribution of the commodities in question by fixing fair prices for them Thus when it is said that the delegation to the Central Government by section 3 is valid it means that the Central Government has been given sufficient and proper guidance for exercising its powers in effectuating the policy of the statute Similarly the validity of section 4 postulates that the powers conferred on the sub delegate do not suffer from the vice of excessive delegation Sub delegation authorised by section 4 is also justified because like the delegate under section 3 the sub delegate under section 4 has been given ample guidance to exercise his powers when he is authorised by the Central Government in that behalf If the Central Government chooses to exercise its powers under section 3 itself it may pass appropriate orders to give effect to the policy of the Act in respect of matters covered by section 31 and 2 When it adopts such a course the Central Government would have exercised its own authority under section 3 and the exercise 637 of its power cannot be challenged on the ground that it suffers from the vice of excessive delegation Similarly where by a notified order passed by the Central Government tinder section 3 the Controller is authorised to pass appropriate orders the notified order cannot be challenged on the ground that it suffers from the vice of excessive delegation In our opinion this position implicit in the assumption that sections 3 and 4 are valid What does the Order purport to do It purports to prescribe a scheme for the guidance of the Controller or other authorities specified in it when they exercise their powers and attempt to effectuate the policy of the Act There can be no doubt that in exercising its powers under section 3 the Central Government could itself have prescribed a price structure for steel and iron from time to time Similarly if by a notified order issued under section 3 the Central Government bad authorised the Controller to do so he could have himself prescribed a price structure in respect of steel and iron from time to time Instead of passing a bare notified order authorising the Controller to take appropriate steps to effectuate the policy of the Act the Order purports to give him additional guidance by making several relevant provisions in regard to the production supply and sale of steel and iron The several clauses of the Order constitute an integrated scheme which would enable the Controller to take steps to give effect to the policy laid down by section 3 of the Act Clause 11B itself provides for the fixation of maximum prices for iron and steel First of all the Controller has to classify iron and steel into different categories according as they are tested or untested an Equalisation Fund has to be established by him for equalising freight and he has to take into account the concession which is payable to each producer or class of producers under existing valid agreements and any other disadvantages He is empowered to require the parties concerned to make a contribution to the Equalisation Fund and the maximum prices which he has to fix have to be fixed separately for the producers the stockholders including the controlled stockholders and other persons or class of persons Having fixed 638 maximum prices as prescribed by cl 12 the proviso confers power on the Controller to grant exemptions to specified stocks of iron and steel falling under the said proviso After thus prescribing the procedure for fixing the maximum prices and after indicating some of the factors which have to be considered in fixing the maximum prices sub cl 3 of cl 11B imposes a statutory prohibition against the specified persons from selling or offering to sell iron and steel at a price exceeding the maximum price fixed under sub cl It is obvious that by prescribing the maximum prices for the different categories of iron and steel cl 11B directly carries out the legislative object prescribed in section 3 because the fixation of maximum prices would make stocks of iron and steel available for equitable distribution at fair prices It is not difficult to appreciate how and why the Legislature must have thought that it would be inexpedient either to define or describe in detail all the relevant factors which have to be considered in fixing the fair price of an essential commodity from time to time In prescribing a schedule of maximum prices the Controller has to take into account the position in respect of production of the commodities in question the demand for the said commodities the availability of the said commodities from foreign sources and the anticipated increase or decrease in the said supply or demand Foreign prices for the said commodities may also be not irrelevant Having regard to the fact that the decision about the maximum prices in respect of iron and steel would depend on a rational evaluation from time to time of all these varied factors the Legislature may well have thought that this problem should be left to be tackled by the delegate with enough freedom the policy of the Legislature having been clearly indicated by section 3 in that behalf The object is equitable distribution of the commodity and for achieving the object the delegate has to see that the said commodity is available in sufficient quantities to meet the demand from time to time at fair prices In our opinion therefore if cl 11B is considered as a part of the composite scheme evidenced 639 by the whole of the Order and its validity is examined in the light of the provisions of sections 3 and 4 of the Act it would be difficult to sustain the plea that it confers on the delegate uncanalised or unbridled power We are inclined to hold that the power conferred on the Central Government by section 3 and on the authority specified by section 4 is canalised by the clear enunciation of the legislative policy in section 3 and that cl 11B seeks further to canalise the exercise of the said power and so it is not a case where the validity of the clause can be successfully challenged on the ground of excessive delegation We have referred to this aspect of the matter at some length because it appears to have influenced the final conclusion in the judgment under appeal As we will presently indicate the argument before us has however centred on the question as to whether the clause has violated article 19 of the Constitution It was faintly argued that cl 11B should have referred to the prices of some specified year as basic prices of the commodities and should have directed the Controller to prescribe the maximum prices in respect thereof by reference to the said basic prices In support of this contention reliance is placed on the provisions of section 3 of the English Prices of Goods Act 1939 It appears that section 1 of the said Act prohibits sale of price regulated goods at more than permitted price and section 3 defines the expression basic price as the price at which in the ordinary course of business in the case of which those goods were to be sold agreed to be sold or offered for sale at the 21st day of August 1939 Section 4 defines the permitted increases It is in the light of the operation of sections 3 and 4 that the prohibition enacted by section 1 becomes effective under the act Reference is also made to the American Emergency Price Control Act 1942 under which the administrator is directed in fixing prices to give due consideration so far as practicable to prices prevailing during a designated base period and to make adjustments for relevant factors of general applicability Vide Yakus vs United States 1 In our 1 640 opinion the analogy of the two statutes cannot effectively sustain the argument that in the absence of a corresponding provision in cl 11B it must necessarily be held to be unconstitutional In deciding the nature and extent of the guidance which should be given to the delegate Legislature must inevitably take into account the special features of the object which it intends to achieve by a particular statute As we have already indicated the object which was intended to be achieved and the means which were required to be adopted in the achievement of the said object have been clearly enumerated by the Legislature as a matter of legislative decision Whether or not some other matters also should have been included in the legislative decision must be left to the Legislature itself The question which we have to consider is whether the power conferred on the delegate is uncanalised or unguided The answer to this question must we think be in favour of the appellants Having regard to the nature of the problem which the Legislature wanted to attack it may have come to the conclusion that it would be inexpedient to limit the discretion of the delegate in fixing the maximum prices by reference to any basic price Therefore we must hold that cl 11B is not unconstitutional on the ground of excessive delegation It is of course true that though cl 11B may not be unconstitutional on the ground of excessive delegation its validity can still be attacked on the ground that it violates articles 191f and g of the Constitution Mr Chatterjee realised that failure to appreciate the effect of this Court s decision in Bagla s case 1 constituted the main infirmity in the judgment under appeal and so he did not press the argument about excessive delegation He contended that cl 11B was void because it violated articles 19 1f and g inasmuch as the power conferred on the Controller by the said clause puts an unreasonable restriction on the respondents fundamental rights guaranteed under article 19 In support of this argument he has relied on the decisions of this Court in Ms Dwarka Prasad Laxmi Narain vs The State of Uttar Pradesh Two Ors 1 2 641 and The State of Rajasthan vs Nath Mal and Mitha Mal 1 On the other hand the learned Solicitor General has contended that the decision of this Court in the case of Harishankar Bagla 2 in effect concludes the controversy between the parties in the present appeals We will presently refer to these decisions but before we do so we may mention the material facts on which the contention is raised The challenge to the validity of the criminal proceedings pending against the respondents can be made on three alternative grounds it can be urged that sections 3 and 4 of the Act are ultra vires and if that is so neither the Order subsequently issued nor cl 11B nor the fixation of prices would be valid We have already shown that this form of challenge has not been adopted by the respondents It can also be urged that either the whole of the Order issued by the Central Government or cl 11B in particular is invalid as offending articles 191f and i of the Constitution It is with this argument that we are at present concerned or alternatively it can be urged that the actual fixation of prices by which a flat reduction of Rs 30 per ton was directed is itself unreasonable and violative of articles 191f and g Now in regard to the challenge to cl 11B on the ground that it violates article 19 it is difficult to see how this clause by itself can be said to violate article 19 In so far as the argument proceeds on the assumption that the authority conferred on the Controller by cl 11B is uncanalised or unbridled or unguided we have already held that the clause does not suffer from any such infirmity Therefore reading cl 11B by itself we do not see bow it would be possible to hold that the said clause is violative of article 19 In fact if sections 3 and 4 are valid and cl 11B do es nothing more than prescribe conditions for the exercise of the delegate s authority which are consistent with section 3 it is only the actual price structure fixed by the Controller which in a given case can be successfully challenged as violative of article 19 Let us therefore consider whether it is open to the respondents to challenge the said price structure in the present appeals 1 2 82 642 In their writ petition the respondents had challenged the validity of the notification issued by the Controller on December 10 1949 mainly if not wholly on the ground that it was issued under cl 11B which itself was void It is true that in the course of the argu ments it appears to have been urged before the High Court that the flat deduction of Rs 30 per ton directed by the impugned notification is unreasonable and in its judgment the High Court has characterised the said deduction as being confiscatory It also appears that the price for sale by registered producers of untested articles was Rs 333 per ton whereas the price for sale by controlled stock holders is Rs 363 and the price at which the respondents could sell was Rs 378 per ton As a result of the deduction of Rs 30 directed by the impugned notification the respondents were required to sell at Rs 348 per ton It is alleged on their behalf that they had purchased the commodity from the controlled stockholders at the rate of Rs 363 per ton and in consequence compelling them to sell the comm odity at the reduced price means a loss of Rs 15 per ton This part of the respondents case has not been tried by the High Court and since it was a matter in dispute between the parties it could not be tried in writ proceedings but apart from it the petitions do not show that the respondents seriously challenged the validity of the notification on this aspect of the matter Besides in considering the validity of the notification it would not be enough to show that a particular registered stockholder suffered loss in respect of particular transactions What will have to be proved in such a case is the general effect of the impugned notification on all the classes of dealers taken as a whole If it is shown that in a large majority of cases if not all the impugned notification would adversely affect the fundamental right of the dealers guaranteed under articles 191f and g that may constitute a serious infirmity in the validity of the notification In the present proceedings no case has been made out on this ground and so we cannot embark upon an enquiry of that type in appeal 643 It still re mains to consider the decisions of this Court on which Mr Chatterjee has relied In the case of Ms Dwarka Prasad Laxmi Narain 1 the provision of cl 43 of the Uttar Pradesh Coal Control Order 1953 was held to be void as imposing an unreasonable restriction upon the freedom of trade and business guaranteed under article 191g of the Constitution and not coming within the protection afforded by cl 6 of the article It is significant that in dealing with the validity of the impugned clause the court has expressly stated that the vires of sections 3 and 4 of the Act were not challenged The impugned clause it was however held had conferred on the licensing authority unrestricted power without framing any rules or issuing any directions to regulate or guide his discretion Besides the power could be exercised not only by the State Coal Controller but by any person to whom he may choose to delegate the same and it was observed that the choice can be made in favour of any and every person It is because of these features of the impugned clause that this Court held that the clause cannot be held to be reasonable It is difficult to see how this decision can help the respondents in attacking cl 11B We have already indicated that the powers exerciseable by the Controller under cl 11B are in terms made subject to the general power of the Central Government to give directions prescribed by cl 12 Incidentally we may point out that though cl 43 was struck down by this Court cls 7 and 8 which empower the Coal Controller to prescribe the terms and prices on which the commodity in question could be sold were upheld as valid Mr Chatterjee contends that in upholding these two clauses this Court has taken into account the formula prescribed by Schedule III and it appeared to the Court that the application of the formula did not on the whole lead to any unreasonable result Besides the explanation to cl 8 also provided some guidance to the authority fixing the price structure and that guidance was also taken into account by this Court in upholding the validity of the two impugned clauses That no doubt is true but in our opinion it would be unreasonable 1 644 to suggest as Mr Chatterjee sought to do that in the absence of provisions like the explanation to cl 8 or the formula to Schedule 111 cl 11B in the present ease should be struck down as void Such a contention finds no support in the decision in the case of Ms Dwarka Prasad Laxmi Narain 1 In the case of Nath Mal 2 this Court struck down the latter part of cl 25 of the Rajasthan Foodgrains Control Order 1949 In this case again it is significant that the challenge to the impugned clause proceeded on the specific and express assumption that section 3 of the Act was valid Now it appears that the impugned clause empowered the Government to requisition the stock at a price lower than the selling price thus causing loss to the persons whose stocks are freezed while at the same time the Government was free to sell the same stocks at a higher price and make a profit The case of the respondent which illustrated this vicious tendency of the impugned clause was treated as a typical case which showed how business of grain dealers would be paralysed by the operation of the clause It was on this view about the effect of the clause in general that the offending portion was struck down under article 191g of the Constitution It was held also to contravene article 312 This decision again does not assist the respondents case because as we have already pointed out the validity of the impugned notification has not been challenged on any such ground in the present proceedings That takes us to the decision of this Court in the case of Harishankar Bagla 3 on which the appellants strongly rely In that case this Court has held that sections 3 and 4 of the Act are not ultra vires It appears that section 6 of the Act was held to be ultra vires by the Nagpur High Court from whose decision the appeal arose This Court reversed that conclusion and held that section 6 of the Act also was valid The appellant had challenged not only sections 3 4 and 6 of the Act but also the impugned Control Order This order was the Cotton Textile Control of Movement Order 1948 Section 3 of the Control Order in particular was 1 2 3 645 challenged as infringing the rights of a citizen guaranteed under articles 191f and Broadly stated this section of the Control Order prohibited transport except under and in accordance with a general permit or special transport permit as prescribed by it The argument was that the power conferred by section 3 constituted an unreasonable restriction on the fundamental rights of the citizen under articles 191f and g and that in substance it suffered from the same vice as cl 43 of the Uttar Pradesh Coal Control Order which had been struck down by this Court in the case of Ms Dwarka Prasad Laxmi Narain 1 This argument was rejected and it was observed that the impugned clause was not at all similar to cl 43 with which this Court was concerned in the case of M section Dwarka Prasad Laxmi Narain 1 The appellants contend that the reasons given by this Court in upholding section 3 of the Order applied with equal force to cl 11B in the present appeals It cannot be said that there is no force in this contention In the result we hold that neither cl 11B of the Order nor the impugned notification issued by the Controller on December 10 1949 violate the respondents fundamental rights under articles 191f and g and so their validity cannot be successfully challenged The orders passed by the High Court on the writ petitions filed by the respondents before it would therefore be set aside and the said petitions dismissed SUBBA RAO J I have had the advantage of perusing the judgment of my learned brother Gajendragadkar J I agree with his conclusion The question raised in this case is whether cl 11B of Iron and Steel Control of Production And Distribution Order 1941 violates the fundamental rights enshrined in article 191f and g of the Constitution In view of the decision of this Court in Harishankar Bagla vs The State of Madhya Pradesh 2 which is binding on us I agree with my learned brother that cl 11B of the said Order is valid I do not propose to express my view on any other question raised in this appeal Appeals allowed

The petitioner company applied to the Chief Controller of Imports and Exports Government of India New Delhi for five import licences and obtained them from the joint Chief Controller of Imports and Exports Bombay purporting to grant the same on the authority of the former and placed orders for goods covered by these licences some of which actually arrived in Bombay Before the goods could be cleared the company received a notice from the Chief Controller stating that whereas there were reasons to believe that these five licences had been obtained by fraud the Government in exercise of the power specified in cl 9 of the Imports Control Order 1955 proposed to cancel them unless sufficient cause was shown before the Chief Controller The petitioner company by a telegram requested the Chief Controller to furnish particulars of the alleged fraud and give an opportunity to inspect the relevant papers and documents relied upon by him By a letter it gave an explanation stating that the petitioners were the victims of foul play by some one bent upon causing damage to them and bringing them in the bad books of the authorities In that letter the company reserved to itself the right to add to amend or alter the explanation after it had obtained inspection of the said papers and the particulars of the alleged fraud The representatives of the company met the Chief Controller as also the Director of Administration of his office and renewed the request for the said particulars and the inspection No particulars were furnished nor was inspection allowed but the Chief Controller told the representatives that the issue of the licences had not been authorised by him and the same had been fraudulently obtained and the Director of Administration told them that the recommendations against which the disputed licences were granted by the joint Controller were not genuine but the said representatives instead of denying the fraud alleged ascribed it to some other party as they had done before It was contended on behalf of the petitioners that cl 9a of the Imports Control Order 1955 infringed articles 191f and g and 31 of the Constitution and that no reasonable opportunity was given to the petitioners of being heard as required by cl 10 of the Imports Control Order 409 Held per Sinha CJ Gajendragadkar Das Gupta and Shah JJ that cl 9 of the Imports Control Order does not give unbridled authority to cancel a licence nor is there any scope for arbitrary action in this regard in view of the provision of cl 10 of the Order which amply fulfils the requirement of natural justice It is not correct to contend that before a licence can be cancelled under cl 9 it must be shown not merely that fraud was committed but that the licensee was also a party to the fraud The entire scheme of control and regulation of imports by licences being based on the grant of licences on a correct statement of fact that basis disappears if the grant is obtained by fraud or misrepresentation and it is wholly immaterial whether the licensee is or is not a party to such fraud or misrepresentation The provision for cancellation of a licence under cl 9 therefore constitutes a reasonable restriction on the rights conferred by article 191f and g of the Constitution and being imposed by a valid law cannot contravene article 31 There can be no absolute standard of reasonableness and what constitutes reasonable opportunity of being heard in the peculiar facts and circumstances of each case is a matter to be decided by the Court The Court has to satisfy itself that the person against whom action was proposed had a fair chance of convincing the authority that the grounds on which such action was proposed were either non existent or did not justify it So judged it could not be said that the omission to give the petitioners in the instant case who were more concerned to show that the company was not a party to the fraud than that no fraud had at all been committed further particulars or inspection of the papers amounted to a denial of reasonable opportunity of being heard Per Subba Rao J Judged in the light of well recognised principles there can be no doubt that the Chief Controller of Imports acting under cls 9 and 10 of the Imports Control Order 1955 performs a quasi judicial function and is bound to follow the principles of natural justice in cancelling a licence Rex vs Electricity Commissioners Ex Parte London Electricity joint Committee Co Rex vs London County Council Ex Parte Entertainments Protection Association Ltd and Province of Bombay vs Khusaldas section Advani referred to The language of cl 10 clearly indicates that when the charge is one of fraud the affected party is entitled to know the particulars of the alleged fraud and to inspect the documents on which it is based and to a personal hearing It was impossible in the facts and circumstances of this case to hold that the petitioners who did not admit having committed the fraud and must be assumed to be innocent were afforded reasonable opportunity of being heard within the meaning of 410 cl 10 of the Order to prove their innocence Unless the particulars were given to them and the documents shown to them it was not possible for them to know if any fraud was at all committed and if so by whom The order of cancellation of the licences was therefore arbitrary and must be quashed

81 62 63 3 of 1959 Petition under article 32 of the Constitution of India for enforcement of Fundamental rights K M Munshi N C Chatterjee L R Das Gupta G K Munshi D N Mukherjee and R Gopalakrishnan for the petitioners C K Daphtary Solicitor General of India H N Sanyal Additional Solicitor General of India B R L Iyengar R H Dhebar and T M Sen for respondents Nos 1 to 10 in Petn No 81 of 59 Nos 1 to 3 in Petn No 62 of 59 No 1 in Petns Nos 63 and 3 of 59 and Nos 2 and 3 in Petn No 3 of 59 GN Dikshit and C P Lal for respondent No 11 in Petn No 81 of 59 and No 2 in Petn No 63 of 59 R Gopalakrishnan for the intervener December 18 The Judgment of the court was delivered by KAPUR J These petitions under article 32 of the Constitution raise the question of the constitutionality of the Drug and Magic Remedies Objectionable Advertisement Act XXI of 1954 hereinafter referred to as the Act As the petitions raise a common question of law they may conveniently be disposed of by one judgment 86 674 The allegation of the petitioners was that various actions had been taken against them by the respond which violated their fundamental rights under article 191a and 191f g They also challenged the Act because it contrvened the provisions of article 14 and articles 21 and 31 The Act passed on April 30 1954 came into force on April 1 1955 along with the rules made thereunder As provided in its preamble it was An Act to control the advertisement of drugs in certain cases to prohibit the advertisement for certain purposes of remedies alleged to possess magic qualities and to provide for matters connected therewith The petitioners in Writ Petition No 81 of 1959 the Hamdard Dawakhana Wakf and another alleged that soon after the Act came into force they experienced difficulty in the matter of publicity for their products and various objections were raised by the authorities in regard to their advertisements On December 4 1958 the Drugs Controller Delhi intimated to the petitioners that the provisions of section 3 of the Act had been contravened by them and called upon them to recall their products sent to Bombay and other States As a result of this correspondence ensued between the petitioners and the authorities On December 4 1958 the Drugs Controller Delhi State stopped the sale of forty of their products set out in the petition Subsequently objection was taken by the Drugs Controller to the advertisements in regard to other drugs Similarly objections were taken by the Drugs Controllers of other States to various advertisements in regard to medicines and drugs prepared by the petitioners They submitted that the various advertisements which had been objected to were pre pared in accordance with the Unani system and the drugs bore Unani nomenclature which had been recognised in the whole world for several centuries past The Act is assailed on the ground of discrimination under article 14 excessive delegation and infringement of the right of free speech under article 191a and their right to carry on trade and business under 675 article 191f g Objection is also taken under articles 21 and 31 The petitioners therefore prayed for a declaration that the Act and the Rules made there under were ultra vires and void as violative of Part III of the Constitution and for the issuing of a writ of Mandamus and Prohibition and for quashing the proceedings and the notices issued by the various authorities the respondents In their counter affidavit the respondents submitted that the method and manner of advertisement of drugs by the petitioners and others clearly indicated the necessity of having an Act like the impugned Act and its rigorous enforcement The allegations in regard to discrimination and impairment of fundamental rights under article 191a f g and any infringement of articles 21 and 31 were denied and it was stated The restriction is about the advertisement to the people in general I say that the main object and purpose of the Act is to prevent people from self medicating with regard to various serious diseases Self medication in respect of diseases of serious nature mentioned in the Act and the Rules has a deleterious effect on the health of the community and is likely to affect the well being of the people Having thus found that some medicines have tendency to induce people to resort to self medication by reason of elated advertisements it was thought necessary in the interest of public health that the puffing up of the advertisements is put to a complete check and that the manufacturers are compelled to route their products through recognised sources so that the products of these manufacturer could be put to valid and proper test and consideration by expert agencies It was also pleaded that the advertisements were of an objectionable character and taking into consideration the mode and method of advertising conducted by the petitioners the implementation of the provisions of the impugned Act was justified Along with their counter affidavit the respondents have placed on record Ext A which is a copy of the literature which 676 accompanied one of the various medicines put on sale by the petitioners andor was stated on the cartons in which the medicine was contained In their affidavit in rejoinder the petitioners reiterated that Unani and Ayurvedic systems had been discriminated against that self medication had no deleterious effect on the health of the community on the contrary it is likely to affect the well being of the people in the context of effective household and domestic remedies based on local herbs popularly known to them in rural areas Self medication has its permission limits even in America and Canada where unlicensed itinerant vendors serve the people effectively For the petitioners in all the petitions Mr Munshi raised four points 1 Advertisement is a vehicle by means of which freedom of speech guaranteed under article 191a is exercised and the restrictions which are imposed by the Act are such that they are not covered by cl 2 of article 19 2That Act the Rules made thereunder and the schedule in the rules impose arbitrary and excessive restrictions on the rights guaranteed to the petitioners by article 191f g 3 Section 3 of the Act surrenders unguided and uncanalised power to the executive to add to the diseases enumerated in section 3 4 Power of confiscation under section 8 of the Act is violative of the rights under articles 21 and 31 of the Constitution In Petitions Nos 62 and 63 of 1939 which relate to two branches of Sadhana Ausadhalaya at Poona and Allahabad respectively Mr N C Chatterjee after giving the peculiar facts of those petitions and the fact that the petitioners Poona branch was raided without a warrant a number of medicines had been seized and a complaint filed against the petitioners in that petition submitted that section 3b of the Act was meant to strike down abnormal sexual activities that advertisements in that case merely mentioned the names of the diseases and suggested the drug for the treatment 677 of those diseases that the prohibition of such adver tisements was an unreasonable restriction on their fundamental right that there was nothing indecent in saying that their medicine was a cure for a particular disease and that the Act was an undue interference with cure and treatment of diseases We now proceed to consider the vitality of the arguments raised on behalf of the petitioners Firstly it was submitted that the restriction on advertisements was a direct abridgement of the right of free speech and advertisements could not be brought out of the guaranteed freedom under article 191a because no dividing line could be drawn and freedom of speech could not be curtailed by making it subject to any other activity The learned Solicitor General on the otherhand contended that it was necessary to examine the pith and substance of the impugned Act and if it was properly considered it could not be said to have in any way curtailed abridged or impaired the rights guaranteed to the petitioners under Art 191a He also contended that the prohibited advertisements did not fall within the connotation of freedom of speech The doctrine of pith and substance submitted Mr Munshi was created for the purpose of determining the legislative competence of a legislature to enact a law and he sought to get support from the following observation of Venkatarama Aiyar J in A section Krishna vs State of Madras 1 and the Privy Council had time and again to pass on the constitutionality of laws made by the Dominion and Provincial legislatures It was in this situation that the Privy Council evolved the doctrine that for deciding whether an impugned legislation was intra vires regard must be had to its pith and substance Though the doctrine of pith and substance was evolved to determine the constitutionality of an enactment in reference to the legislative competence of a legislature particularly under a federal constitution with a distributive system of powers it has been used in other contexts in some cases eg in connection 1 406410 678 with the determination of the constitutionality of statutes restricting the rights to carry on certain activities and the consequent infringement of article 191g by Mahajan CJ in Cooverjee B Bharucha vs The Excise Commissioner The Chief Commissioner of Ajmer 1 in the case of Excise Regulation of 1915 regulating the import export transport manufacture sale and possession of intoxicating drugs and liquor and imposing duties thereon by Das CJ in State of Bombay vs R M D Chamarbughwala 2 in connection with a statute which was held not to be interference with trade commerce or intercourse as such but to save it from anti social activities It is unnecessary to decide in the present case whether in its scope it extends to the determination of the constitutionality of an enactment with reference to the various sub clauses of cl 1of article 19 A more appropriate approach to the question is in our opinion contained in the dictum of Mahajan J as he then was in Ms Dwarka Prasad Laxmi Narain vs The State of Uttar Pradesh 3 There he held that in order to decide whether a particular legislative measure contravenes any of the provisions of Part III of the Constitution it is necessary to examine with some strictness the substance of the legislation in order to decide what the legislature has really done Of course the legislature cannot bypass such constitutional prohibition by employing indirect methods and therefore the Court has to look behind the form and appearance to discover the true character and nature of the legislation Therefore when the constitutionality of an enactment is challenged on the ground of violation of any of the articles in Part 111 of the Constitution the ascertainment of its true nature and character becomes necessary ie its subject matter the area in which it is intended to operate its purport and intent have to be determined In order to do so it is legitimate to take into consideration all the factors such as history of the legislation the purpose thereof the 1 877 2 3 682 679 surrounding circumstances and conditions the mischief which it intended to suppress the remedy for the disease which the legislature resolved to cure and the true reason for the remedy Bengal Immunity Company Ltd vs The State of Bihar 1 RMD Chamarbaughwala vs The Union of India 2 Mahant Moti Das Ors vs section P Sahi 3 Another principle which has to borne in mind in examining the constitutionality of a statute is that it must be assumed that the legislature understands and appreciates the need of the people and the laws it enacts are directed to problems which are made manifest by experience and that the elected representatives assembled in a legislature enact laws which they consider to be reasonable for the purpose for which they are enacted Presumption is therefore in favour of the constitutionality of an enactment Charanjit Lal Chowdhuri vs The Union of India Ors4 The State of Bombay vs FN Bulsara 5 Mahant Moti Das vs section P Sahi 3 What then was the history behind the impugned legislation and what was the material before the Parliament upon which it set to enact the impugned Act 1 In 1927 a resolution was adopted by then Council of State recommending to the Central and Provincial Governments to take immediate measures to control the indiscriminate use of medical drugs and for standardisation of the preparation and for the sale of such drugs In August 1930 in response to the public opinion on the subject and in pursuance of that resolution the Government of India appointed the Drugs Enquiry Committee with Sir R N Chopra as its Chairman to enquire into the extent of the quality and strength of drugs imported manufactured or sold in India and to recommend steps for controlling such imports manufacture and sale in the interest of the public This Committee made a report pointing out the necessity of exercising control over import 1 632 633 2 936 3 AIR 1959 SC 942 948 4 5 708 680 manufacture and sale of patent and proprietary medicines in the interest of the safety of the public and public health The report pointed out in paragraph 256 259 how in other countries control was exercised and restrictive laws to achieve that end had been enacted In the Appendix to this Report was given a list of a number of samples of advertisements of patent and proprietary medicines dealing with cures of all kinds of diseases 2 As a result of the Chopra Committee Report the Drugs act was passed in 1940 3In 1948 The Pharmacy Act was passed to regulate the provisions of pharmacy As a result of these two enactments the State Governments were given the responsibility of controlling the manufacture of drugs and pharmaceuticals and their sales through qualified personnel and the Central Government was given the control on quality of drugs and pharmaceuticals imported into the country 4The Chopra Committee Report dealt with the popularity of the patent and proprietary medicines in the following words The pride of place must be accorded to ingenious propaganda clever and attractive dissemination of their supposed virtues and wide and alluring advertisements The credulity and gullibility of the masses especially when certain cures are assured in utterly hopeless cases can well be imagined Perusal of the advertisements of cures produces a great effect on patients who have tried treatment by medical men without success Such patients resort to any and every drug that comes in their way In an infinitesimal small number of cases spontaneous cures are also effected Widest publicity is given to these and the preparations become invested with miraculous virtues The reassurances of cure the force of argument advanced to guarantee it and the certificates of persons said to have been cured which are all set out in advertisements make a deep impression especially on those with weak nerves The love of mystery and secrecy inherent in human nature the natural disinclination and 681 shyness to disclose details of one s illness especially those involving moral turpitude the peculiar temperament of the people who high and low rich and poor demand something in a bottle for the treatment of every ailment and poverty of the people who cannot afford to pay the doctor s bills or the high prices current for dispensed medicines have all been enlarged upon as tending to self diagnosis and self medication by patent and proprietary medicines 5Evidence was led before the Chopra Committee deprecating the increasing sale of proprietary medicines particularly those with secret formulae as such drugs were positively harmful and were a serious and increasing menace There were advertisements and pamphlets issued in connection with these medicines which showed fraudulent practices and extravagant claims for these medicines 6The Chopra Committee Report had also made a recommendation for a strict measure of control over proprietary medicines 7 The Bhatia Committee was set up in pursuance to a resolution No CI 11252 dated February 14 1953 and between March 1953 and end of that year it examined a large number of witnesses in different towns of India some of whom represented chemists and druggists some were leading medical practitioners and some were State Ministers for Health The Bhatia Committee issued a Questionnaire to various organisations and witnesses It contained questions in regard to advertisement of drugs and therefore one of the objects of this Committee which was inaugurated by the Health Minister on March 12 1953 was amongst other things to look into the control to be exercised over objectionable and unethical advertisements 8 There were a large number of objectionable advertisements in the Press in regard to patent medicines which were after the Act came into force pointed out by the Press Commission Report but it cannot be said that this fact was unknown to Parliament as this Committee also examined a number of witnesses 87 682 9 The Indian Medical Association had suggested to this Press Committee which was presided over by the late Mr Justice Rajadhyaksha the barring of advertisements of medicines which claim to cure or alleviate any of the following diseases Cancer Bright s disease Cataract Diabetes Epilepsy Glaucoma Locomotor ataxia Paralysis Tuberculosis 10 In the United Kingdom advertisements of drugs or treatment for these diseases are governed by the Cancer Act of 1939 and the Pharmacy and Medi cines Act of 1941 Advertisement relating to the treatment of venereal diseases are governed by the Venereal Diseases Act of 1917 11 Wyndham EB Lloyd in his book Hundred years of medicine published in 1936 wrote about the outstanding evils which arise from the use of secret remedies and nostrums It also drew attention to the dangers of advertisements in regard to them and what the British Medical Association had said about them 12The British Medical Association had in a book entitled Secret Remedies What they cost and contain exposed ruthlessly the harmful effects of such remedies The council on Pharmacy and Chemistry of American Medical Association had also given its opinion on the harmful effects of indiscriminate self medication by the public and the grave danger which ensued from such misdirected and inadequate treatment and the failure to recognise seriousness of the disease only when it was too late It is not necessary to refer to the recommendations of the Bhatia Committee or the Press Enquiry Committee because they were published in June and July 1954 respectively In England as far back as 1889 an Act called the Indecent Advertisements Act 52 and 53 Viet 18 was passed to suppress indecent advertisements in which advertisements relating to syphilis gonorrhoea nervous debility or other complaints or infirmity arising from intercourse was prohibited In 1917 the Venereal Diseases Act 7 and 8 Geo 21 was passed in England This placed restrictions on 683 advertisements relating to treatment for venereal diseases In 1941 The Pharmacy and Medicine Act 1941 4 and 5 Geo VI Ch 42 was passed which corres ponds in material particulars to the impugned Act It cannot be said that there was no material before Parliament on the basis of which it proceeded to enact the impugned legislation This material shows the bistory of the legislation the ascertained evil intended to be cured and the circumstances in which the enactment was passed In Shri Ram Krishna Dalmia vs Shri Justice section R Tendolkar 1 Das CJ observed that in order to sustain the presumption of con stitutionality the court may take into consideration matters of common knowledge the history of the times and may assume every state of facts which can be conceived existing at the time of legislation Thus it is open to the court for the purpose of determining the constitutionality of the Act to take all these facts into consideration and in the present case we find that there was the evil of self medication which both in this country and in other countries the medical profession and those who were conversant with its dangers had brought to the notice of the people at large and the Government in particular They had also warned against the dangers of self medication and of the consequences of unethical advertisement relating to proprietary medicines particularising those diseases which were more likely to be affected by the evil There is reason therefore for us to assume that the state of facts existed at the time of the legislation which necessitated the Act These facts we have already set out and it is not necessary to reiterate them With this background in view we proceed to examine the provisions of the Act and ascertain the predominant purpose true intent scope and the object of the Act The preamble shows that the object of the Act was to control the advertisement of drugs in certain cases ie diseases and to prohibit advertisements relating to remedies pretending to have magic qualities and provide for other matters connected therewith 1 297 684 The title of the Act also shows that it is directed against objectionable advertisements The definition section section 2 in cl a defines advertisements and in cl b drugs which include i medicines for use of human beings and animals ii substances for use of diagnosis treatment or prevention of diseases in human beings and animals iii articles other than food which affect the organic functions of the body of human beings or animals and iv articles intended for use as a component of any medicine etc c defines magic remedies to include a talisman mantra kavacha and other charms and d relates to the publication of any advertisement and e what a venereal disease is Section 3 prohibits advertisement of drugs for treatment of diseases and disorders Clause a of section 3 deals with procurement of miscarriage in women for prevention of conception cl b with maintenance or improvement of capacity of human beings for sexual pleasure cl c with diagnosis and cure of venereal and other diseases Section 4 prohibits misleading advertisements relating to drugs Section 5 similarly prohibits advertisements of magic remedies efficacious for purposes specified in section 3 Section 6 prohibits the import into and export from India of certain advertisement Section 14 is a saving clause which excludes registered practitioners treatises or books advertisements sent confidentially to medical practitioners wholesale or retail chemists for distribution among registered medical practitioners or to hospitals or laboratories It also excludes advertisements printed or published by Government or with the previous sanction of the Government Section 15 gives the Government the power to grant exemptions from the application of sections 3 4 5 and 6 in certain cases As already stated when an enactment is impugned on the ground that it is ultra vires and unconstitutional what has to be ascertained is the true character of the legislation and for that purpose regard must be had to the enactment as a whole to its objects purpose and true intention and to the scope and effect of its provisions or what they are directed against and what they aim at A section Krishna vs State of Madras 1 Thus 1 4060 410 685 examined it cannot be said that the object of the Act was merely to put a curb on advertisements which offend against decency or morality but the object truly and properly understood is to prevent self medication or treatment by prohibiting instruments which may be used to advocate the same or which tend to spread the evil No doubt in section 3 diseases are expressly mentioned which have relation to sex and disorders peculiar to women but taken as a whole it cannot be said that the object of the Act was to deal only with matters which relate to indecency or immorality The name and the preamble are indicative of the purpose being the control of all advertisements relating to drugs and the use of the word animals in cl b of the definition section negatives the object being merely to curb the emphasis on sex and indecency Section 4 further suggests that the legislature was trying to stop misleading advertisements relating to drugs Section 5 also tends to support the object being prohibition of advertisements suggesting remedies for all kinds of diseases Section 6 also points in the same direction ie to stop advertisements as to drugs Sections 14 and 15 are a clearer indication that there should be no advertisements for drugs for certain diseases in order that the general public may not be misled into using them for ailments which they may imagine they are suffering from and which they might believe to be curable thereby That this is so is shown by the fact that such advertisements can be sent to medical practitioners hospitals and laboratories The exclusion of Government advertisements and the power to give exemption all point to the objective being the stopping of advertisements of drugs for the object above mentioned and not merely to stop advertisements offending against morality and decency Mr Munshi s argument was that section 3 was the key to the Act and that the object and direct effect of the Act was to stop advertisements and thereby impair the right of free speech by directly putting a prohibition on advertisement If the contention of Mr Munshi were accepted then the restriction to be valid must fall within cl 2 of article 19 of the Constitution In 686 other words it must have relationship with decency or morality because the other restrictions of that clause have no application If on the other hand the submission of the learned Solicitor General is accepted then the matter would fall under sub cls f and g and the restriction under article 196 The object of the Act as shown by the scheme of the Act and as stated in the affidavit of Mr Merchant is the prevention of self medication and self treatment and a curb on such advertisements is a means to achieve that end Objection was taken that the preamble in the Act does not indicate the object to be the prevention of treatment of diseases otherwise than by qualified medical practitioners as the English Venereal Diseases Act 1917 does In this Court in many cases affidavits were allowed to be given to show the reasons for the enactment of a law the circumstances in which it was conceived and the evils it was to cure This was done in the case of Shri Ram Krishna Dalmia vs Shri Justice section R Tendolkar 1 Similarly in Kathi Raning vs The State of Saurashtra 2 and in Kavalap para Kottarathil Kochunni vs The State of Madras 3 affidavits were allowed to be filed setting out in detail the circumstances which led to the passing of the respective enactments In support of his argument that any limitation of his right to advertise his goods was an infringement of his freedom of speech because advertisement was a part of that freedom Mr Munshi relied upon Alma Lovell vs City of Griffin 4 In that case the objection was taken to the validity of a municipal ordinance prohibiting the distribution without a permit of circulars handbooks advertising or literature of any kind on the ground that such ordinance violated the first and the 14th amendment by abridging the freedom of the Press and it was held that such prohibition was invalid at its face as infringing the constitutional freedom of the Press and constitutional guarantee of such freedom embraced pamphlets and leaflets The actual violation which was complained of in that case consisted of the 1 2 3 4 687 distribution without the required permission of pamphlets and magazines in the nature of religious tracts Chief Justice Hughes said The ordinance in its broad sweep prohibits the distribution of circulars handbooks advertising or literature of any kind It manifestly applies to pamphlets magazines and periodicals No doubt the word advertisement was used both in the ordinance as well as in the opinion by the learned Chief Justice but the case actually related to the distribution of pamphlets and magazines Mr Munshi also relied on Express Newspapers Private Ltd vs The Union of India 1 where the cases dealing with freedom of speech were discussed by Bhagwati J but the question of advertisements as such did not arise in that case An advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed It assumes the attributes and elements of the activity under article 191 which it seeks to aid by bringing it to the notice of the public When it takes the form of a commercial advertisement which has an element of trade or commerce it no longer falls within the concept of freedom of speech for the object is not propagation of ideas social political or economic or furtherance of literature or human thought but as in the present case the commendation of the efficacy value and importance in treatment of particular diseases by certain drugs and medicines In such a case advertisement is a part of business even though as described by Mr Munshi its creative part and it was being used for the purpose of furthering the business of the petitioners and had no relationship with what may be called the essential concept of the freedom of speech It cannot be said that the right to publish and distribute commercial advertisements advertising an individual s personal business is a part of freedom of speech guaranteed by the Constitution In Lewis J Valentine vs F J Chrestensen 2 It was held that the constitutional right of free speech is not infringed by 1 123 133 2 688 prohibiting the distribution in city streets of handbills bearing on one side a protest against action taken by public officials and on the other advertising matter The object of affixing of the protest to the advertising circularwas the evasion of the prohibition of a city ordinance forbidding the distribution in the city streets of commercial and business advertising matter Mr Justice Roberts delivering the opinion of the court said This court has unequivocally held that the streets are proper places for the exercise of the freedom of communicating information and disseminating opinion and that though the states and municipalities may appropriately regulate the privilege in the public interest they may not unduly burden or proscribe its employment in these public thoroughfares We are equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertising If the respondent was attempting to use the streets of New York by distributing commercial advertising the prohibition of the Code provisions was lawfully invoked against such conduct It cannot be said therefore that every advertisement is a matter dealing with freedom of speech nor can it be said that it is an expression of ideas In every case one has to see what is the nature of the advertisement and what activity falling under article 191 it seeks to further The advertisements in the instant case relate to commerce or trade and not to propagating of ideas and advertising of prohibited drugs or commodities of which the sale is not in the interest of the general public cannot be speech within the meaning of freedom of speech and would not fall within article 191a The main purpose and true intent and aim object and scope of the Act is to prevent self medication or self treatment and for that purpose advertisements commending certain drugs and medicines have been prohibited Can it be said that this is an abridgement of the petitioners right of free speech In our opinion it is not Just as in Chamarbaughwalla s ease 1 it was said that activities undertaken and 1 689 carried on with a view to earning profits eg the business of betting and gambling will not be protected as falling within the guaranteed right of carrying on business or trade so it cannot be said that an advertisement commending drugs and substances as appropriate cure for certain diseases is an exercise of the right of freedom of speech Das CJ in State Bombay vs RMD Chamarbaughwala s 1 case said at page 920 We have no doubt that there are certain activities which can under no circumstances be regarded as trade or business or commerce although the usual forms and instruments are employed therein To exclude those activities from the meaning of those words is not to cut down their meaning at all but to say only that they are not within the true meaning of those words One has only to substitute for the words trade or business or commerce the phrase freedom of speech to see how it applies to the present case Freedom of speech goes to the heart of the natural right of an organised freedom loving society to impart and acquire information about that common interest If any limitation is placed which results in the society being deprived of such right then no doubt it would fall within the guaranteed freedom under article 191a But if all it does is that it deprives a trader from commending his wares it would not fall within that term In John W Rast vs Van Deman Lewis Company 2 Mr Justice McKenna dealing with advertisements said Advertising is merely identification and description apprising of quality and place It has no other object than to draw attention to the article to be sold and the acquisition of the article to be sold constitutes the only inducement to its purchase As we have said above advertisement takes the same attributes as the object it seeks to promote or bring to the notice of the public to be used by it Examples can be multiplied which would show that advertisement dealing with trade and business has relation 1 2 690 88 690 with the item business or trade and not with freedom of speech Thus advertisements sought to be banned do not fall under article 191a It was also contended that the prohibition against advertisements of the petitioners was a direct abridgement of the right of freedom of speech and Alice Lee Grosjean vs The American Press Co 1 was relied upon That was a case in which a tax was levied based on gross receipts for the privilege of engaging in the business of public advertisements in newspapers magazines etc having a specified circulation and it was there held that such a statute abridged the freedom of the press because its effect was not merely to reduce revenue but it had tendency to curtail circulation This subject was discussed in Express Newspapers case 2 at pages 128 to 133 where the question was whether the Wage Board Act specifying the wages and conditions of service of the working journalists and thus imposing certain financial burden on the press was an interference with the right of freedom of Press and Bhagwati J said at page 135 Unless these were the direct or inevitable consequences of the measures enacted in the impugned Act it would not be possible to strike down the legislation as having that effect and operation A possible eventuality of this type would Dot necessarily be the consequence which could be in the contemplation of the legislature while enacting a measure of this type for the benefit of the workmen concerned In considering the constitutionality of a statute the Court has regard to substance and not to mere matters of form and the statute must be decided by its operation and effect JM Near vs State of Minnesota3 In the present case therefore 1 the advertisements affected by the Act do not fall within the words freedom of speech within article 191a 2 the scope and object of the Act its true nature and character is not interference with the right of freedom of speech 1 2 123 133 3 75 La Ed 1357 1363 4 691 but it deals with trade or business and 3 there is no direct abridgement of the right of free speech and a mere incidental interference with such right would no alter the character of the law Ram Singh vs The State of Delhi 1 Express Newspapers Private Ltd vs The Union of India2 It is not the form or incidental infringement that determines the constitutionality of a statute in reference to the rights guaranteed in article 191 but the reality and substance The Act read as a whole does not merely prohibit advertisements relating to drugs and medicines connected with diseases expressly mentioned in section 3 of the Act but they cover all advertisements which are objectionable or unethical and are used to promote self medication or self treatment This is the content of the Act Viewed in this way it does not select any of the elements or attributes of freedom of speech falling within article 191a of the Constitution It was next argued that assuming that the matter was within clauses f g of article 191 the restraint was disproportionate to the purpose of the Act the object sought to be achieved and the evil sought to be remedied It was further argued that it could not be said that the restrictions imposed by the Act were in the interest of the general public The basis of this argument was 1 the very wide definition of the word advertisement in section 2a 2 the use of the word suggest in section 3 3 the uncanalised delegated power to add diseases to the schedule 4 the existence of section 14c read with rule 6 of the Rules and 5 the procedural part in s8 of the Act all of which according to counsel showed that it was beyond all allowable limits of restraint under cl 6 of article 19 Advertisement in the Act it was argued included not only advertisements in newspapers and periodicals and other forms of publication but also on cartons bottles and instructions inside a carton Without this latter kind of advertisement it was submitted the user would be unable to know what the medicine was what it was to be used for and how If the purpose 1 1951 SCR451 455 2 123133 692 of the Act is to prevent objectionable and unethical advertisements in order to discourage self medication and self treatment it cannot be said that the definition is too wide keeping in view the object and the purpose of the Act which have been set out above It is these evils which the Act seeks to cure and if the definition of the word advertisment was not so broad and inclusive it would defeat the very purpose for which the Act was brought into existence The argument that the word suggest is something subjective is in our opinion also not well founded Suggest has many shades of meaning and in the context it means commendatory publication It connotes a direct approach and its use in section 3 does not support the contention that the restraint is disproportionate In another part of the judgment we shall discuss the constitutionality of the power of delegation reasonableness of the range of diseases added in the schedule and it is unnecessary to go over the same field here Then we come to section 14c and r 6 ie prohibited advertisement is to be sent confidentially by post to a registered medical practitioner or to a wholesale and retail chemist or a hospital and laboratory and the following words have to be inscribed on the outside of every packet containing the advertisement ie for the use only of registered medical practitioners or a hospital or a laboratory If the purpose is to discourage self medication and encourage treatment by properly qualified medical practitioners then such a regulatory provision cannot be considered an excessive restraint The mere fact that in the corresponding English Act certain other persons are also mentioned and that such advertisements can be published in certain medical journals and scientific treatises is not a ground for holding the restriction to be disproportionate It is not a proper method of judging the reasonableness of the restrictions to compare every section of the Act with the corresponding English Act and then to hold it unreasonable merely because the corresponding section of the two Acts are different The evil may be the same but the circumstances and 693 conditions in the two countries in regard to journals may be different and there are bound to be differences in the degree of restrictiveness in the operativeportions of the two Acts The policy behind the Act is that medication should be on the advice of qualified medical practitioners Merely because the legislature thought that it would not exclude advertisements in medical journals of the country would not be indicative of the disproportion of the restraint Objection was then taken to the procedural part in section 8 and it was submitted that the power seizure and detention was unfettered and and there is no proper procedure laid down Criminal Procedure Code or the Drugs Act are no rules and safeguards in regard warrants or entry into premises as there Code of Criminal Procedure or the Drugs Act In another part of the judgment we shall deal with this question and it is not necessary to do so here It was next contended that the Act was not in the interest of the general public as it could not be said that the mention of the names of diseases or instructions as to the use of particular medicines for those diseases was not in the interest of the general public Besides it would prevent the medicines being brought to the notice of the practising medical practitioners or distributing agencies It would also prevent a properly worded advertisement suggesting cure of diseases to people who for the sake of prestige and other understandably valid reasons do not like to confide to any person the nature of their diseases and that it would prevent medical relief in a country where such relief is notoriously inadequate We have already set out the purpose and scope of the Act the conditions in which it was passed and the evils it seeks to cure If the object is to prevent self medication or self treatment as it appears to be then these are exactly the evils which such advertisements would subserve if a piece of legislation like the Act did not exist It has not been shown that the restrictions laid down in the Act are in any manner disproportionate to the object sought to be attained by the Act nor has it been of 694 shown that the restrictions are outside the permissible limits Mr Chatterjee in dealing with this point drew our attention to the test of reasonablenses as laid down in Chintaman Rao vs The State of Madhya Pradesh 1 where it was said by Mahajan J as he then was at pages 762 and 763 The question for decision is whether the statute under the guise of protecting public interests arbitrarily interferes with private business and imposes unreasonable and unnecessarily restrictive regulations upon lawful occupation in other words whether the total prohibition of carrying on the business of manufacture of bidis within the agricultural season amounts to a reasonable restriction on the fundamental rights mentioned in article 191g of the Constitution It has not been shown in the present case that under the guise of protecting public interest the Act arbitrarily interferes with private business or imposes unreasonable restrictions If the true intention of the Act is as indeed it is to stop objectionable and unethical advertisements for the purpose of discouraging self medication no question of unreasonable restrictions arises Mr Chatterjee also relied upon the observation of Bose J in Dwarka Das Srinivas of Bombay vs The Sholapur Spinning Weaving Company Limited 2 where the learned Judge said that the provisions in the Constitution touching fundamental rights must be construed broadly and liberally in favour of those on whom the rights have been conferred With this statement we are in accord The interpretation should be such as to subserve the protection of the fundamental rights of the citizen but that is subject to limitations set out in article 19 itself which are for the general welfare of all citizens taken as a whole and are therefore for the interest of the general public Mr Chatterjee further contended that the restraint was excessive because the prohibition of a mere mention of the name of a disease and the suggestion of a cure for that could 1 2 733 695 not be a reasonable restriction As submitted by the learned Solicitor General the objection is not to the names but to the advertisements commending certain medicines as a cure for the same and this is what the Act is endeavouring to eliminate In our opinion it cannot be said that the restrictions either excessiveor disproportionate or are not in the interest of the general public The third point raised by Mr Munshi was that thewords or any other disease or condition which maybe specified in the rules made under this Act in cld of section 3 of the Act are delegated legislation and do not lay down any certain criteria or proper standardsand surrender unguided and uncanalised power to theexecutive to add to diseases in the schedule Thelearned Solicitor General in reply supported theschedule as a case of conditional legislation and not the exercise of delegated legislative power and he further contended that even if it was held to be thelatter it was within the limits recognised by judicial decisions The distinction between conditional legislation and delegated legislation is this that in the former the delegate s power is that of determining when a legislative declared rule of conduct shallbecome effective Hampton Co vs US 1 and thelatter involves delegation of rule making power which constitutionally may be exercised by the admin istrative agent This means that the legislature having laid down the broad principles of its policy in the legislation can then leave the details to be supplied by the administrative authority In other words by delegated legislation the delegate completes the legislation by supplying details within the limits prescribed by the statute and in the case of conditionallegislation the power of legislation is exercised by the legislature conditionally leaving to the discretion of an external authority the time and manner of carrying its legislation into effect as also the determination of the area to which it is to extend The Queen vs Burah 2 Russell vs The Queen 3 King Emperor vs 1 2 835 696 Benoarilal Sarma 1 Sardar Indar Singh vs State of Rajasthan 2 Thus when the delegate is given the power of making rules and regulations in order to fill in the details to carry out and subserve the purposes of the legislation the manner in which the requirements of the statute are to be met and the rights therein created to be enjoyed it is an exercise of delegated legislation But when the legislation is complete in itself and the legislature has itself made the law and the only function left to the delegate is to apply the law to an area or to determine the time and manner of carrying it into effect it is conditional legislation To put it in the language of another American case To assert that a law is less than a law because it is made to depend upon a future event or act is to rob the legislature of the power to act wisely for the public welfare whenever a law is passed relating to a state of affairs not yet developed or to things future and impossible to fully know The proper distinction there pointed out was this The legislature cannot delegate its power to make a law but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend There are many things upon which wise and useful legislation must depend which cannot be known to the law making power and must therefore be subject of enquiry and determination outside the hall of legislatures In Lockes Appeal Field vs Clark 143 U section 649 But the discretion should not be so wide that it is impossible to discern its limits There must instead be definite boundaries within which the powers of the administrative authority are exercisable Delegation should be not be so indefinite as to amount to an abdication of the legislative function Schwartz American Administrative Law page 21 In an Australian case relied upon by the learned Solicitor General the prohibition by proclamation of 1 1944 LR 72 IA 57 2 697 goods under section 52 of the Customs Act 1901 was held to be conditional legislation Baxter vs Ah Way 1 According to that case the legislature has to project its mind into the future and provide as far as possible for all contingencies likely to arise in the application of the law but as it is not possible to provide for all contingencies specifically for all cases the legislature resorts to conditional legislation leaving it to some specified authority to determine in what circumstances the law should become operative or to what its operation should be extended or the particular class of persons or goods to which it should be applied Baxter s case 1 at pp 637 638 Broadly speaking these are the distinguishing features of the two forms of delegation and these are their characteristics The question is in which compartment does the power given in the Act fall The power given to the authority under that provision section 3 of the Act is contained in cl d in the following words S3 Subject to the provisions of this Act no person shall take any part in the publication of any advertisement referring to any drug in terms which suggest or are calculated to lead to the use of that drug for d the diagnosis cure mitigation treatment or prevention of any venereal disease or any other disease or condition which may be specified in rules made under this Act And power to make rules is laid down in section 16 which is as follows section 16 1 The Central Government may by notification in the official gazette make rules for carrying out the purposes of this Act 2 In particular and without prejudice to the generality of the foregoing power such rules may a specify any disease or condition to which the provisions of section 3 shall apply 1 634 637 638 698 b prescribe the manner in which advertisement of articles or things referred to in cl c of sub section 1 of section 14 may be sent confidentially For the petitioner it was argued that section 3d is delegated legislation and not conditional legislation as the power delegated therein is only to specify conditions and diseases in the rules The interdiction under the Act is applicable to conditions and diseases set out in the various clauses of section 3 and to those that may under the last part of clause d be specified in the rules made under section 16 The first sub section of is 16 authorises the making of rules to carry out the purposes of the Act and cl a of sub section 2 of that section specifically authorises the specification of diseases or conditions to which the provisions of section 3 shall apply It is the first sub section of section 16 which confers the general rule making power ie it delegates to the administrative authority the power to frame rules and regulations to subserve the object and purpose of the Act Clause a of the second sub section is merely illustrative of the power given under the first sub section King Emperor vs Sibnath Banerji 1 Therefore sub section 2a also has the same object as sub section 1 ie to carry out the purposes of the Act Consequently when the rule making authority specifies conditions and diseases in the schedule it exercises the same delegated authority as it does when it exercises powers under sub section 1 and makes other rules and therefore it is delegated legislation The question for decision then is is the delegation constitutional in that the administrative authority has been supplied with proper guidance In our view the words impugned are vague Parliament has established no criteria no standards and has not prescribed any principle on which a particular disease or condition is to be specified in the Schedule It is not stated what facts or circumstances are to be taken into consideration to include a particular condition or disease The power of specifying diseases and conditions as given in section 3d must therefore be held to be going beyond permissible boundaries 1 1945 LR 72 IA 241 699 of valid delegation As a consequence the Schedule in the rules must be struck down But that would not affect such conditions and diseases which properly fall within the four clauses of section 3 excluding the portion of cl d which has been declared to be unconstitutional In the view we have taken it is unnecessary to consider the applicability of Baxter vs Ah Way 1 We are of the opinion therefore that the words or any other disease or condition which may be specified in the rules made under this Act confer uncanalised and uncontrolled power to the Executive and are therefore ultra vires But their being taken out of cl d of section 3 does not affect the constitutionality of the rest of the clause or section as they are severable R M D Chamarbaughwala vs The Union of India 2 The constitutionality of section 8 of the Act was challenged on the ground that it violated the petitioners right under articles 21 and 31 That section when quoted runs as follows Any person authorised by the State Government in this behalf may at any time seize and detain any document article or thing which such person has reason to believe contains any advertisement which contravenes any of the provisions of this Act and the court trying such contravention may direct that such document includingall copies thereof article or thing shall be forfeited to the Government It was pointed out by Mr Munshi that there was nolimitation placed on no rules and regulations made for and no safeguards provided in regard to the powers of a person authorised in that behalf by Government to seize and detain any document article or anything which in the opinion of such person contains any advertisement contravening any of theprovisions of the Act It was also submitted that in the corresponding English Act of 1939 in section 10 there are proper safeguards provided in regard to the exercise of the power of seizure etc The first part of section 8 of the Act dealing with seizure and detention received slender support from the Solicitor General It may 1 634 637 638 21957 SCR 930 700 be he contended that having regard to the purpose and object of the Act the Indian legislature did not think it necessary to provide any safeguards and that the legislature thought that nobody would be prejudiced by reason of the want of safeguard previous to the seizure In our opinion this portion of the section goes far beyond the purpose for which the Act was enacted and the absence of the safeguards which the legislature has thought it necessary and expedient in other statutes eg the Indian Drugs Act is an unreasonable restriction on the fundamental rights of the petitioners and therefore the first portion of the section ie any person authorised by any of the provisions of this Act is unconstitutional What then is the consequence of this unconstitutionality If this portion is excised from the rest of the section the remaining portion is not even intelligible and cannot be upheld The whole of the section must therefore be struck down By a portion of cl d of section 3 and the whole of B 8 being declared unconstitutional the Act is not thereby affected as they are severable from the rest of the Act As a consequence of excision of that portion and of section 8 from the Act the operation of the remaining portion of the Act remains unimpaired R M D Chamarbaughwala vs The Union of India1 As a result of section 8 being declared invalid all the goods seized from the petitioners having been seized without the authority of law must be returned to the respective petitioners It will be for the Government to take such action in regard to the proceedings taken or prosecutions commenced as is in accordance with the law laid down in this Judgment We declare the portion of cl d of section 3 indicated above and section 8 unconstitutional and direct therefore that a writ of mandamus shall issue directing the respondents to return the goods seized As the petitioners challenge to the constitutionality of the Act is partially successful the proper order as to costs is that the parties do pay their own costs Petitions partly allowed

The appellants who were holders of certain lands known as Lal liti lands were assessed to land revenue under the provisions of the Bombay Land Revenue Code 1879 after the Bombay Taluqdari Tenure Abolition Act 3 1949 came into force Lal liti lands were granted originally by Taluqdars in Gujrat to cadets widows of the family and relations for maintenance and to village servants and others either in reward for past services or as remuneration for services to be performed Before the establishment of British rule Taluqdars had the position of semi independent chiefs but subsequent to the establishment of British rule they became mere owners of proprietary estates holding lands directly from Government and in respect of such estates the Gujrat Taluq dars Act 1888 was passed providing for their revenue administration The appellants claimed that these lands had been enjoyed without payment of any jama since pre British times and that the exemption from payment of land revenue was not affected by the Bombay Taluqdari Tenure Abolition Act 1949 The High Court took the view that the lands were liable to be assessed under section 5 of that Act It was contended for the appellants inter alia that no liability for payment of land revenue in respect of Lal liti lands could arise under section 5 of the Act because 1 the Taluqdar retained no interest in such lands after the grant and consequently such lands were not taluqdari lands within the meaning of section 23 of the Act 2 clause a of section 51 of the Act was merely declaratory 394 while cl b was the operative clause by which the only persons liable for payment of land revenue were i a taluqdar holding any taluqdari land and ii a cadet of a taluqdari family holding any taluqdari land for maintenance and 3 even assuming thatcl a made taluqdari lands liable to the payment of land revenue Code a Lal liti holder could not be made liable because he was not an occupant of unalienated land within the meaning of section 1361 of the Code Held1 that having regard to the history of Lal liti lands and the provisions of the Gujrat Taluqdar s Act 1888 such lands are lands which form part of a taluqdari estate even though no jama was actually paid to the taluqdar or to Government and are therefore taluqdari lands within the meaning of section 23 of the Bombay Taluqdari Abolition Act 1949 2that cl a of section 51 of the Bombay Taluqdari Abolition Act was a general provision and applied the Bombay Land Revenue Code to all taluqdari lands while cl b was a particular deeming Provision with regard to the taluqdar and his cadet and 3that whatever might have been the position of a Lal liti holder earlier on the abolition of the Taluqdari tenure by the Bombay Taluqdari Abolition Act he became a holder in actual possession of land in respect of which the Government had not transferred its rights to the payment of revenue wholly or partiallyto the ownership of any person

Appeals Nos 422 423 of 1958 433 Appeals from the judgment and decree dated November 22 1957 of the Allahabad High Court Lucknow Bench Lucknow in Civil Misc Applications Nos 54 and 56 of 1957 Niamatullah section N Andley and J B Dadachanji for O N Srivastava for the appellant H N Sanyal Additional Solicitor General of India Bishun Singh and C P Lal for the respondent December 14 The Judgment of section K Das and A K Sarkar JJ was delivered by Sarkar J Subba Rao J delivered a separate judgment SARKAR J Raja Udit Narain Singh was the proprietor of Ramnagar estate a big taluqdari in district Barabanki in Uttar Pradesh formerly known as the United Provinces of Agra and Oudh and for short UP an abbreviation still in use Ramnagar estate was governed by the Oudh Estates Act 1 of 1869 and in the absence of any disposition by the holder for the time being it appears to have devolved according to the rule of primogeniture Raja Udit Narain died in 1927 leaving two sons of whom the older was Raja Harnam and the younger Kanwar Sarnam Kanwar Sarnam died in 1928 leaving the respondent his only son and a widow Parbati Kuer Raja Harnam died thereafter in 1935 without issue leaving the appellant his sole widow After the death of Raja Harnam disputes arose between the respondent who was then a minor and was represented by his certificated guardian his mother Parbati Kuer and the appellant a reference to which has now to be made The appellant s contentions appear to have been as follows Raja Udit Narain left a will bequeathing certain villages of Ramnagar estate to Raja Harnam absolutely and the rest of it as set out in a schedule to the will to him for life and after him to Kanwar Sarnam for life and thereafter or failing the latter to the respondent absolutely The will declared that village Bichelka had been given to her for life as runumal 434 or wedding present and that she would have a maintenance of Rs 500 per month out of the estate The schedule to the will did not mention five of the villages of Ramnagar estate with regard to which Raja Udit Narain died intestate and these thereupon devolved on Raja Harnam under the rule of primogeniture that applied to the estate After Raja Udit Narain s death Raja Harnam went into possession of the estate and executed a will leaving all the properties over which he had a power of disposition including the seven villages bequeathed to him absolutely by Raja Udit Narain and the five villages not disposed of by his will to her in absolute right Thereafter Raja Harnam executed a deed of gift in her favour giving her most of the immovable properties covered by his will and several house properties in Lucknow On these allegations the appellant made a claim to all the properties said to have been given to her by the aforesaid wills and the gift of Raja Harnam Parbati Kuer on behalf of her son the respondent challenged the factum and validity of the wills and the gift said to have been made by Raja Harnam and resisted the appellant s claim And so the disputes between the parties arose The Deputy Commissioner of Barabanki intervened to restore peace and brought about a family arrangement into which the parties entered on January 22 1935 settling the disputes on the terms therein contained Under this family arrangement certain properties came to the appellant but it is not necessary for the purposes of these appeals to refer to them in detail The peace created by the family arrangement did not last long The respondent after attaining majority on September 12 1940 repudiated the family arrangement on grounds to which it is unnecessary to refer On September 6 1943 he filed a suit against the appellant to set aside the family arrangement and recover from her the properties of the estate in her possession The defence of the appellant to the suit was that the family arrangement was binding on the respondent However to cover the eventuality of the 435 family arrangement being found to be void or voidable the appellant herself filed a suit against respondent claiming title to various properties of the estate under the will of Raja Udit Narain and the will and gift of Raja Harnam The respondent contested this suit With the particulars of the claims and defences in the suits or their soundness we are not concerned in these appeals and a reference to them will not be necessary While these two suits were pending the appellant was on November 12 1945 declared by the District Judge of Lucknow under the provisions of the Lunacy Act 1912 to be a person of unsound mind Thereupon the Court of Wards assumed superintendence of the properties of the appellant under the provisions of the UP Court of Wards Act hereinafter referred to as the Act and placed them in the charge of the Deputy Commissioner of Barabanki district in which most of these properties were situate The Court of Wards gave to these properties the name Ganeshpur estate Upon such assumption of charge the cause titles of the two suits were amended and in the place of the appellant s name the name Deputy Commissioner Barabanki IC Court of Wards Ganeshpur estate was substituted such amendment being required by the provisions of section 55 of the Act the terms of which we shall presently set out The letters IC in the substituted name were an abbreviation of the words in charge of Thereafter the respondent s suit was dismissed by a decree dated June 3 1947 except as to his claim to two villages it being found that in them Raja Harnam had only a life estate and to them the appellant had no claim after his death and that these had been given to her by the family arrangement by mistake As the family arrangement was substantially upheld by the decree in the respondent s suit the appellant s suit became unnecessary for it bad been founded on the basis that the family arrangement was void or could be avoided It had therefore to be dismissed Two appeals were filed from the decisions in these two suits in the High Court at Lucknow one by the Deputy 436 Commissioner of Barabanki representing the estate of the appellant against the decree dismissing the appellant s suit being FCA No 99 of 1947 and the other by the respondent being FCA No 2 of 1948 against the decree dismissing his suit FCA No 99 appears to have been filed merely as a matter of safety to be proceeded with only in case the respondent s appeal FCA No 2 of 1948 succeeded While the appeals were pending the respondent made an application under the Act to have his estate placed under the charge of the Court of Wards That application was accepted and the superintendence of his estate was taken over by the Court of Wards on February 8 1950 The respondent s estate was also placed by the Court of Wards in the charge of the Deputy Commissioner Barabanki as the estate was within his jurisdiction The Court of Wards retained for it its old name of Ramnagar estate The cause titles of the appeals had again to be amended in view of section 55 of the Act and for the name of the respondent the name Deputy Commissioner Barabanki IC Court of Wards Ramnagar estate was substituted The cause titles of the appeals then became Deputy Commissioner Barabanki IC Court of Wards Ganeshpur estate Appellant versus Deputy Commissioner Barabanki IC Court of Wards Ramnagar estate Respondent AND Deputy Commissioner BarabankiIC Court of Wards Ramnagar estate Appellant versus Deputy Commissioner BarabankiIC Court of Wards Ganeshpur estate Respondent The position thus was that the estates of both the appellant and the respondent came under the superintendence of the same Court of Wards and were placed in the charge of the same Deputy Commissioner in whose name each party sued and was sued in the appeals This situation was the occasion for the 437 proceedings to be referred to presently from which these appeals arise Before coming to these proceedings certain other facts have however to be stated On December 3 1951 the Court of Wards passed a resolution settling the appeals on certain terms as it thought that such settlement was in the best interests of the two contending wards particularly in view of the heavy costs of the litigation and the then impending legislation for abolition of zemindaries Thereafter under the instructions of the Court of Wards the lawyers appearing for the parties in the appeals presented to the High Court on April 281952 petitions for recording compromises in the appeals and for passing decrees in accordance therewith On May 2 1952 the High Court passed orders directing the compromises to be recorded and decrees to be passed in the appeals in terms thereof The appeals were thus disposed of and the proceedings therein terminated When the appeals were so compromised the paperbooks in respect of them were in the course of preparation It is not necessary to encumber this judgment by setting out the terms of the compromise It is however of some importance to state that the petitions embodying the compromise were signed twice by Mr K A P Stevenson once as Deputy Commissioner Barabanki IC Court of Wards Ramnagar estate district Barabanki Appellant in FCA No 2 of 1948 and respondent in FCA No 99 of 1947 and again as IC Court of Wards Ganeshpur estate district Barabanki Respondent in FCA No 2 of 1948 and appellant in FCA No 99 of 1947 Obviously Mr Stevenson the Deputy Commissioner Barabanki signed each petition once as representing the appellant and again as representing the respondent It is also of some interest to note that the petitions were presented in Court by Sri Sita Ram Advocate for the appellant s estate and Sri Bishun Singh Advocate for the respondent s estate Some more events happened before the proceedings out of which these appeals arise were started Shortly after the compromise decrees had been passed ail Act 56 438 abolishing zemindaries came into force in UP and the zemindary estates of the parties vested in the Government of UP Thereupon the Court of Wards ceased to function In anticipation of this situation the estates of the parties were released by the Court of Wards In view however of the appellant s mental incapacity an order was passed by the District Judge of Lucknow on April 27 1953 in the lunacy proceedings placing her estate in the charge of the Deputy Commissioner Barabanki and one Mr M L Sarin and appointing them as the guardians of her person and property A few years later the appellant recovered from her affliction and an order was passed by the District Judge Lucknow on October 6 1956 declaring her to be of sound mind Her aforesaid guardians were thereupon discharged and she was put in possession of her properties After the appellant had regained her mental competence she began to entertain a feeling that the compromise in the appeals had not done full justice to her and she set about to find a way to get out of it On January 14 1957 the appellant made two applications to the High Court at Lucknow one in each of the said appeals Nos 99 of 1947 and 2 of 1948 for an order that the work of the preparation of the paperbooks of the said appeals be resumed under Chapter XIII of the Rules of the High Court from the stage at which it was interrupted by the compromise decrees as those decrees were a nullity and did not terminate the appeals which must therefore be deemed to be pending These applications were heard together by the High Court and dismissed by its judgment and orders dated November 22 1957 It is against this judgment and the orders that the present appeals have been brought These appeals were consolidated by an order made by the High Court and they have been heard together in this Court It is not the appellant s case that the compromise was brought about by fraud or was otherwise vitiated on similar grounds and is therefore liable to be set aside No avoidance of the compromise is sought In fact the appellant had initially alleged in her petitions 439 that the compromise had been brought about by fraud and collusion She however amended the petitions by deleting the paragraphs containing these allegations and chose to proceed on the purely legal basis that the compromise was a nullity It is for this reason that we have not referred to the terms of the compromise No question arises in those appeals as to their fairness or as to whether they should be avoided on any equitable ground If the compromise decrees were a nullity as the appellant contends then she would no doubt be entitled to proceed on the basis as if they bad never been made and in that view her applications would be competent and should succeed The question is whether the compromise decrees were a nullity The appellant first says that the compromise decrees were a nullity as the terms of section 56 of the Act which are mandatory had not been complied with That section reads thus Section 56 When in any suit or proceeding two or more wards being parties have conflicting interests the Court of Wards shall appoint for each such ward a representative and the said representative shall thereupon conduct or defend the case on behalf of the ward whom he represents subject to the general control of the Court of Wards It is true that no representative had been appointed under this section for either party for the purposes of the two appeals It is said that this omission to appoint representatives made the compromise decrees a nullity as the terms of the section are imperative The question then is is section 56 imperative In our view it is not It no doubt says that the Court of Wards shall appoint a representative But it is well known that the use of the word shall is not conclusive of the question whether a provision is mandatory see Hari Vishnu Kamath vs Syed Ahmad Ishaque 1 The intention of the legislature has to be gathered from the whole statute Several grounds are suggested why section 56 should be held to be imperative First it is said that otherwise 11955 1 SCR 1104 440 in view of section 55 it would be otiose Section 55 is in these terms Section 55 No ward shall sue or be sued nor shall any proceedings be taken in the civil court otherwise than by and in the name of the Collector in charge of his property or such other person as the Court of Wards may appoint in this behalf It is said that the concluding words of section 55 give the Court of Wards a discretionary power to appoint a representative and therefore if section 56 was only directory then it would also give the same discretionary power to appoint a representative and thus become otiose The contention seems to us to be ill founded In order that one section may be rendered otiose by a certain interpretation of another that interpretation must make the two sections deal with the same subject matter the two must then be serving the same purpose The argument is founded on the basis that read as an imperative provision section 56 would not be otiose that is then it would be serving a purpose different from that which section 55 served Now we do not appreciate how section 56 becomes otiose by being read as a directory provision while it would not be so if read as a mandatory provision Surely the subject matter of a statutory provision is not changed whether it is read as directory or as mandatory If it was not otiose as a mandatory provision it would no more be so as a directory provision Another fallacy in this argument is that it assumes that by reading section 56 as a directory provision a discretion is conferred on the Court of Wards to appoint or not to appoint representatives for the wards as it pleases A provision giving a discretionary power leaves the donee of the power to use or not to use it at his discretion A directory provision however gives no discretionary power free to do or not to do the thing directed A directory provision is intended to be obeyed but a failure to obey it does not render a thing duly done in disobedience of it a nullity Therefore it seems to us to be wrong to say that by reading section 56 as merely directory any discretion is conferred on the Court of Wards 441 It also seems clear to us that sections 55 and 56 deal with entirely different matters Section 55 deals only with the name in which a ward may sue or be sued Section 56 deals with appointment of representatives for two or more wards who are parties to a litigation and have conflicting interests to defend or conduct the case on behalf of the wards and section 56 would apply whether the wards were sued in the names of the Collectors in charge of their properties or in the names of persons appointed for the purpose by the Court of Wards There is nothing to show that the represen tatives appointed under section 56 are to be named in the record of the case as representing the wards The section does not say so Section 56 contemplates a stage where two or more wards are already parties to a litigation It therefore contemplates the wards suing or being sued in the names of the Collectors in charge of their properties or of other persons appointed under section 55 Notwithstanding this section 56 does not provide that the representatives appointed under it shall replace the Collector or the person appointed under section 55 on the record of the litigation Therefore it seems to us clear that if section 56 is read as a directory provision section 55 would not become otiose Next it is said that sections 57 and 58 of the Act also deal with the appointment by the Court of Wards of representatives for the wards in certain proceedings between them but in these sections the words used are respectively shall be lawful for the Court of Wards to appoint and may appoint while the word used in section 56 is shall and that this distinction clearly indicates that the intention of the legislature is to make section 56 imperative This argument also does not appear to us to be sound We are not satisfied that because a statute uses in some provisions the word shall and in others the words shall be lawful or may it necessarily indicates thereby that the provisions containing the word shall are to be understood as mandatory provisions We think that each provision has to be considered by itself and the context in which the word shall occurs in it the object of the provision 442 and other considerations may lead to the view that in spite of the use of the word shall it is a directory provision It seems to us that sections 57 and 58 rather indicate that if the appointments there contemplated are merely directory the appointments provided by section 56 are also directory Section 57 empowers the Court of Wards when any question arises between two or more wards of such nature that an adjudication upon it by a court is expedient to appoint a representative for each ward and require the representatives so appointed to prepare a statement containing the point or points for determination and to file the statement in a civil court in the form of a case for the opinion of the court The section further provides that the civil court shall proceed to hear and dispose of the case in the manner prescribed by the Code of Civil Procedure for the hearing and disposal of suits and also that the case shall be conducted by the representatives appointed for the wards subject to the general control of the Court of Wards Section 58 empowers the Court of Wards when it thinks that a dispute which has arisen between two or more wards is a fit subject for reference to arbitration to appoint a representative for each ward and require the representatives to submit the dispute to the arbitration of a person or persons approved by it It would appear therefore that the position of a ward is the same whether the case is governed by section 56 section 57 or section 58 In each case one ward has a dispute with another in each their interests conflict In the first two cases the conflict is submitted to the decision of a civil court and in the third to arbitration There is no reason to think that the legislature intended that the interests of the wards required more protection in a case falling under section 56 than in a case falling under section 57 or section 58 If therefore as the argument concedes the appointment of representatives was not intended by the legislature to be obligatory under sections 57 and 58 no more could the legislature have intended the appointment of representatives under section 56 obligatory This leads us to the argument based on the object of a 56 It is said that the object of the section is to 443 protect the interests of the wards Unless the terms of the section are obeyed it is contended the wards interests will suffer So it is said that section 56 must be construed as a mandatory provision This argument overlooks that part of section 56 which makes the representatives appointed under it subject to the general control of the Court of Wards in the discharge of their functions It is clear therefore that it is the intention of the legislature that the interests of the wards should really be in the charge of the Court of Wards in spite of the appointment of the representatives and in spite of the conflicting interests of the wards It follows that the direction to appoint representatives has not been inserted in section 56 to protect the conflicting interests of the wards or to ensure such interests being properly looked after by taking them out of the charge of the Court of Wards It would indeed be against the whole concept of the Court of Wards Act to hold that it contemplated a situation where the interests of the wards would be taken out of the hands of the Court of Wards while it retained charge of their estates We are therefore inclined to agree with the view of the learned Judges of the High Court that The reason for incorporating section 56 in the Act appears to have been with the idea of avoiding any embarrassment to the officers of the Court of Wards who may have had the task in certain cases of representing rival interests There is thus nothing in the object with which section 56 was enacted to lead us to hold that its terms were intended to be imperative We may look at the matter from another point of view Under section 15 of the Act the Court of Wards upon assuming the superintendence of any property is to nominate a collector or other person to be in charge of it Usually it is the Collector of the district sometimes called the Deputy Commissioner in which the largest part of the property is situate who is nominated for the purpose In the present case as it happened the estates of both the appellant and the respondent were situate in the same district of Barabanki and had therefore been put in charge of 444 the same officer namely the Deputy Commissioner of that district Now it may so happen in another case that the estates of the wards are in charge of different Collectors or Deputy Commissioners To such a case also section 56 would be applicable if the two wards happened to be parties to a litigation with conflicting interests It would be strange if in such a case any decree that came to be passed had to be held to be a nullity because the terms of that section had not been complied with It could not of course then be said that the interests of the wards had been prejudiced by the omission to appoint representatives under section 56 for there would in such a case be no difficulty for the Collectors to look after the interests of their respective wards in the best way possible This view of the matter also seems to indicate that section 56 is not imperative We have now examined all the arguments advanced in support of the view that section 56 is an imperative provision We find them without any force The question whether a statute is imperative or otherwise is after all one of intention of the legislature The rules of interpretation are for discovering that intention We have not found any rule which would lead us to hold that section 56 was intended to be an imperative provision The section serves no purpose except the removal of practical inconvenience in the conduct of a suit or its defence By providing that the representatives shall be subject to the control of the Court of Wards the section makes it clear that in spite of the appointment of the representatives the Court of Wards retains all powers in respect of the litigation Such powers are given to the Court of Wards by the Act itself Under section 38 the Court of Wards has the right to do all things which it may judge to be for the advantage of the ward One of such powers is to conduct a litigation on behalf of a ward in any manner it thinks best in the interests of the ward it could therefore compel the representatives to settle the litigation on terms decided by it If it could so compel the representatives it would be insensible to suggest that it could not itself effect the settlement 445 Clearly the Court of Wards could itself settle a litigation in which two of its wards were involved even where representatives had been appointed under section 56 The appointment of representatives could not hence have been intended to be obligatory In our view therefore the section is clearly directory The failure to observe the provisions of the section did not render the compromise decrees in this case a nullity It is then said that there was in law no compromise in this case A compromise it is said is a contract and in order that there may be a contract there must be two parties to it which there was not in this case It is contended that there was only one party in the present compromise namely the Deputy Commissioner Barabanki It is true that there must be two parties to make a contract But it seems to us that the contention that there was only one party to the compromise proceeds on a misconception of its real nature It overlooks that the compromise was really between the two wards the appellant and the respondent The compromise was brought about by the Court of Wards in exercise of its statutory powers That the Court of Wards could make a compromise on behalf of a ward is clear and not in dispute It does not lose its powers when it has two wards and can therefore make a compromise between them When it does so it makes a contract between the two of them Therefore to the present compromise there were two parties The act expressly contemplates a right in the Court of Wards to make a contract between two of its Wards Thus under section 611 of the Act a contract executed by the Court of Wards for a ward may be executed in its own name or on behalf of the ward Under sub sec 3 of that section when the transferor and transferee are both its wards the Court of Wards shall have power to enter into convenants on behalf of the transferor and the transferee respectively Sub section 2 of section 61 provides that the convenants made by the Court of Wards on behalf of a ward shall be binding on the ward If the Court of Wards did not have the power to make a contract between two of its wards it would 57 446 often be impossible to carry on the management of the wards properties beneficiently The power of the Court of Wards to make a contract for a ward is a statutory power We find nothing in the Act to indicate that such power does not exist for making a contract between two wards It is true that the cause titles of the appeals showed the Deputy Commissioner Barabanki as both the appellant and the respondent But that did not make the Deputy Commissioner himself a party to the appeals There of course cannot be a litigation unless there are two parties to it It will be remembered that in the cause titles the Deputy Commissioner Barabanki was described once as in charge of Ganeshpur estate and again as in charge of Ramnagar estate This indicates that the Deputy Commissioner was mentioned in the cause titles as representing the the two real parties ie the appellant and the respondent Then again the Deputy Commissioner Barabanki was brought on the record because of section 55 of the Act The terms of that section have been set out earlier and they leave no doubt that the person Suing Or being sued is the ward and that the ward is suing or being sued in the name of the Collector Therefore also when the appeals were compromised the compromise was between the parties to the appeals namely the appellant and the respondent It was not a compromise which the Deputy Commissioner Barabanki made with himself though he alone signed the compromise petition The contention that there was no compromise in this case because there were not two parties must hence fail It is lastly said that the compromise decrees were a nullity in view of the principles embodied in Or XXXII of the Code of Civil Procedure That order deals with minors and persons of unsound mind and requires that when any such person is a party to a suit the Court will appoint some one to be his guardian for the suit It is true that it is necessary that the person appointed as guardian should have no interest in the litigation against the person under disability It is 447 contended on behalf of the appellant that she was a person of unsound mind and so some disinterested person should have been appointed her guardian for the appeals and that the Deputy Commissioner Barabanki was not such a disinterested person as he was also interested in the respondent the opposing party in the appeals It is said that the decrees passed in the appeals without another guardian having been appointed for the appellant are a nullity Now Or XXXII r42 provides that where a person under disability has a guardian declared by a competent authority no other person shall be appointed his guardian unless the Court considers for reasons to be recorded that it is for the welfare of the person under disability that another person should be appointed as his guardian Section 27 of the Act gives the Court of Wards the power to appoint a guardian for a ward who is of unsound mind The Deputy Commissioner Barabanki was in fact appointed the guardian of the appellant under the Act when upon her lunacy her estate came under the superintendence of the Court of Wards Her estate was in his charge Therefore under the provisions of Or XXXII r 4 the Deputy Commissioner Barabanki was entitled to act as the appellant s guardian for the appeals and the Court had not made any order a pointing another person to be her guardian The Court of Wards is a statutory body and was created to look after the interests of the wards Its constitution is such that it can be trusted to be impartial Its position is wholly different from that of a private guardian No fault can be found with the Court in having left the interests of the appellant in charge of the Court of Wards though it was also in charge of the interests of the respondent Indeed it is at least arguable if the civil court could have by any order that it might have made prevented the Court of Wards from discharging its statutory duty of looking after the interests of its ward Therefore it seems to us that the failure of the Court to appoint another person as the guardian of the appellant for the suits or the appeals did not make the compromise decrees a nullity 448 One other point raised on behalf of the appellant remains to be considered It is said that in fact there was no compromise between the two wards Now this is a question of fact and was not raised in the High Court The respondent had no chance of meeting the allegation of fact now made We also have not the advantage of the views of the High Court on this question of fact It would be unfair to the respondent to allow such a question to be raised now However that may be we are satisfied that there was in fact a compromise made between the two wards by the Court of Wards Our attention has been drawn to the resolution passed by the Court of Wards directing the compromise to be made That in our opinion brought about the compromise between the two wards it was the only way in which the Court of Wards could have brought about the compromise We may also point out that the compromise petitions were signed by the Deputy Commissioner Barabanki twice once for each of the parties and had been put into court by the lawyers respectively engaged for the parties for the purpose We therefore think that the contention that there was in fact no compromise is entirely without force In our opinion these appeals must fail and they are therefore dismissed with costs SUBBA RAO J I have had the advantage of perusing the judgment of my learned brother Sarkar J I regret my inability to agree with him The facts of the case and the progressive stages of the litigation are fully stated in the judgment of my learned brother and it is not necessary to restate them here in detail It would suffice if the factual basis giving rise to the main controversy in the case be stated The appellant was the owner of Ganesbpur estate and the respondent of Ramnagar estate Both of them became wards of the Court of Wards and both the estates were under the management of the Deputy Commissioner Barabanki Between the two estates there was litigation and at the crucial point of time 449 two appeals being FCA No 99 of 1947 and FCA No 2 of 1948 were pending on the file of the High Court at Allahabad The cause titles in the appeals give the following array of parties FCA No 99 of 1947 Deputy Commissioner Barabanki IC Court of Wards Ganeshpur estate district Barabanki Appellant versus Deputy Commissioner Barabanki IC Court of Wards Ramnagar estate district Barabanki Respondent FCA No 2 of 1948 Deputy Commissioner Barabanki IC Court of Wards Ramnagar estate district Barabanki Appellant versus Deputy Commissioner Barabanki IC Court of Wards Ganeshpur estate district Barabanki Respondent It is clear from the said array of parties in the appeals that the same person represented both the estates and the Deputy Commissioner Barabanki was both the appellant and respondent It appears that the Court of Wards effected a settlement between the two wards in respect of the outstanding disputes between them and presumably as directed by the Court of Wards the Deputy Commissioner Barabanki filed a petition in the High Court for recording the compromise The petition was signed by Sri K A P Stevenson IAS Deputy Commissioner Barabanki on behalf of both the estates On May 2 1952 the High Court passed a decree in terms of the said compromise The said facts give rise to a short but difficult question namely whether the compromise effected was a nullity entitling the appellant to ignore it and to have the appeals disposed of on merits The main argument of Mr Niamatullah the learned Counsel for the appellant may be summarized thus Section 56 of the UP Court of Wards Act 1912 450 hereinafter called the Act imposes a statutory duty on the Court of Wards to appoint separate representatives when in a suit there are conflicting claims between two of its wards and the Court has no jurisdiction to proceed with such a suit and make any order or decree on merits or on compromise unless such an appointment is made In the present case admittedly no such appointment was made and the compromise petition was filed by the Deputy Commissioner Barabanki in his dual capacity as the appellant as well as the respondent and therefore the decree made therein was a nullity If it was a nullity the argument proceeds the Court should ignore it and dispose of the appeals as if they were still on its file This argument if accepted would entail the acceptance of the appeals As I propose to do so it is unnecessary to particularize the other contentions of the learned Counsel or give my findings thereon For the same reason the counter argument of the learned Additional Solicitor General may conveniently be confined only to the said argument While conceding that the application under section 151 of the Civil Procedure Code was maintainable if the decree was a nullity the learned Counsel for the respondent contends that notwithstanding the non compliance of the provisions of section 56 of the Act the High Court had jurisdiction to record the compromise lawfully effected by the Court of Wards and therefore the decree was not a nullity and could not be ignored The question falls to be decided on a true interpretation of the provisions of section 56 of the Act Section 56 appears in Chapter VII of the Act dealing with suits It would be convenient at the outset to read sections 55 and 56 of the Act section 55 No ward shall sue or be sued nor shall any proceedings be taken in the civil court otherwise than by and in the name of the Collector in charge of his property or such other person as the Court of Wards may appoint in this behalf section 56 When in any suit or proceeding two or more wards being parties have conflicting interests 451 the Court of Wards shall appoint for each such ward a representative and the said representative shall thereupon conduct or defend the case on behalf the ward whom he represents subject to the general control of the Court of Wards These two sections are placed in juxtaposition and they appear to be complementary to each other Section 55 prescribes the mode or proceeding by or against the ward in a court Ordinarily he should sue or be sued in the name of the Collector in charge of his pro perty It also visualizes the contingency when a Court of Wards may appoint in its discretion some other person instead of the Collector for the Purpose of this section 56 deals with a particular situation namely when there are conflicting interests between the wards who are parties to a suit and in that event a duty is cast on the Court of Wards to appoint separate representatives for each such ward The object of section 56 is selfevident for in the contingency contemplated by that section an anomalous situation is created if the general rule prescribed by section 55 is followed for both the plaintiff and the defendant would be the Collector a procedure that cannot be tolerated by any civilised jurisprudence That apart the procedure is obviously detrimental to the interests of the wards for there is every danger of their respective interests not being protected and properly represented in the court To avoid this anomaly and obvious prejudice to the parties section 56 has been enacted A combined reading of the said provisions therefore indicates that the procedure laid down in section 55 must in the contingency contemplated by section 56 give way to the procedure prescribed by the latter section The next question is what does the word representative in section 56 mean Does it mean as the learned Additional Solicitor General contends an agent who is entrusted with the duty of assisting the Collector or as the learned Counsel for the appellant argues one who represents the ward in a suit by being brought on record as his representative The word representative has in law different meanings To represent means to stand in place of and a representative 452 is one who stands in the place of another The word reprsentative with prefixes like legal or personal added or not when used with reference to ownership of land may mean an heir executor or legatee But in the context of a suit the word is also used in the sense that one who represents another when the latter is a disqualified person like a minor or a lunatic In this category come guardians They are appointed by court to represent a minor or a lunatic as the case may be and the suit without such representative cannot legally proceed But a statute may confer power upon an authority other than the court to appoint a representative to a disqualified person That is the position in the present case A statutory representative acts for and in the place of a disqualified ward and without such valid representative on record the suit cannot legally proceed just like in the case of a minor or a lunatic to represent whose interests no guardian is appointed If the intention of the legislature was only to provide for the appointment of a separate agent to help the Collector who had a dual role to perform it would have used the word agent in the section That apart the Collector does not require the statutory power to appoint an agent to help him in the conduct of a suit for as a party to the suit he can always appoint separate Advocates for the two wards That the word representative does not mean an agent but is intended to convey the idea of one representing a ward and as such brought on record in that capacity is made clear by the other provisions of the Act wherein the same word appears Section 57 of the Act reads 1 Where any question arises as between two or more wards of such nature that an adjudication upon it by a civil court is expedient it shall be lawful for the Court of Wards to appoint a representative on behalf of each ward The representative so appointed shall prepare a statement containing the point or points for determination and shall on behalf of the said wards file the statement in a civil court having jurisdiction in the form of a case for the opinion of the said court 453 2 The civil Court shall then proceed to hear and dispose of the case in the manner prescribed by the Code of Civil Procedure 1908 for the hearing and disposal of suits 3 The case shall be conducted on behalf of the wards by their representatives appointed under subsection 1 of this section subject to the general control of the Court of Wards It is manifest from this section that the duty of the representative under section 57 is not to act as a clerk or an assistant to the ward but to represent him in the proceedings He would be on record representing the ward and it is impossible to contend that the proceedings under section 57 of the Act can either be initiated or disposed of without a representative being appointed in that behalf Section 58 of the Act reads When it appears to the Court of Wards that any question or dispute arising between two or more wards is a fit subject for reference to arbitration it may appoint a representative on behalf of each such ward and require the said representatives to submit the question or dispute to the arbitration of such person or persons as it may approve Under this section also the appointment of a representative on behalf of each ward is a pre requisite for the initiation and conduct of arbitration proceedings Here also the representative is not appointed to assist the ward but to represent him in the proceedings It is a well known rule of construction that a similar meaning should be given to the word representative in the Act unless the context requires otherwise The object of the appointment of a representative under sections 56 57 and 58 of the Act is the same and the same meaning should be given to that word namely that the representative appointed is one who represents the ward in the proceedings and is brought on record as such Laying emphasis on the word conduct or defend in section 56 of the Act and on the omission of the word compromise therein it is contended that the representative appointed thereunder has no 58 454 power to enter into a compromise The section does not in my View bear out this construction The first part of the section enjoins on the Court of Wards to appoint a representative to each of the wards and then the second part proceeds to state that such a representative should thereupon conduct or defend the case The later part of the section does not define the meaning of the word representative and limit its scope but only brings out the idea that the suit shall not proceed till such a representative is appointed A person appointed to represent a disqualified person shall have all the powers of a party subject to the limitations imposed by relevant statutes and the only limitation imposed by section 56 of the Act is that the said representative is subject to the general control of the Court of Wards It follows that the representative can enter into a compromise subject to the general control of the Court of Wards Assistance is sought to be derived by the Additional Solicitor General from decisions distinguishing between the powers of a Solicitor and a Counsel and holding that a Solicitor being only a representative cannot enter into a compromise without the consent of the client while the latter being in charge of the entire litigation can do so In my view these decisions are based upon the peculiar characteristics of the two branches of the profession and cannot legitimately be invoked to construe the provisions of section 56 of the Act Nor the fact that the representative appointed under section 56 of the Act is subject to the general control of the Court of Wards can be relied upon to subvert the operation of the section itself The question of control arises only after a representative is appointed and the appointing authority cannot obviously ignore its statutory duty and purport to exercise the duties of representatives in exercise of its power of general control over non existent representatives Assuming that the representative has no power to compromise the suit it does not materially affect the question raised in this case In that view the authority empowered to do so has to effect the compromise put the same in court through the representatives and 455 obtain a decree thereon But that does not dispense with the appointment of representatives to conduct and defend the suit for without such representation the suit itself could not be proceeded with and a decree could not be obtained on the compromise Lastly it is said that the provisions of the section are directory and noncompliance thereof would not affect the validity of the compromise decree if in fact the compromise was effected bona fide by the competent authority The word shall in its ordinary import is obligatory but there are many decisions wherein the courts under different situations construed the word to mean may The High Court in this case relied upon the observations of this Court in Jagan Nath vs Jaswant Singh 1 which run as follows It is one of the well recognized rules of interpretation that a provision like this should be held to be non mandatory unless non compliance with the provisions was visited with some penalty A perusal of the judgment does not disclose that this Court has laid down any such inflexible rule of construction It was construing the word shall in section 82 of the Representation of the People Act 1951 which lays down that a petitioner shall join as respondent to his petition all the candidates who were duly nominated at the election other than himself Having regard to the other provisions of the Act particularly to section 85 thereof and the construction put upon a similar word in Order XXXIV rule 1 of the Civil Procedure Code this Court held that the word shall in section 82 was only directory This Court did not purport to lay down any broad proposition that whenever the word shall is used in a statute it should be construed as directory unless non compliance with the provision is made penal Nor the decision in The Queen vs Ingall 2 lays down any such wide rule of construction Under section 42 of Valuation Metropolis Act 1869 provision is made for the performance of several acts within the times prescribed therein Every matter connected with the valuation must be transacted before the 31st of March for the 1 901 2 207 456 list comes into force on the 6th April But there are other sections whereunder provision is made for preparing the valuation lists where there has been omission to make them according to the requirements of the Act The observance of times is not enforced by penalties The Court held that notwithstanding the use of the word shall in section 42 of the Valuation Metropolis Act 1869 the provision is only directory In construing the provisions in such a manner Lush J observed We ought to look at the object which the legislature contemplated in passing the Valuation Metropolis Act 1869 But we must in construing the Act strike a balance between the inconvenience of holding the list to be null and void and the risk of allowing injury to be done by the delay in making the list the former seems to me the greater evil and therefore in my opinion we ought to hold the list to be valid This judgment is therefore an authority for the position that the intention of the legislature should be gathered from the object of the Act and also by striking a balance between the possible inconvenience that would be caused in accepting the one or other of the views The decision in Caldow vs Pixwell 1 deals with the provisions of section 29 of the Ecclesiastical Dilapidations Act 1871 which says that within three calendar months after the avoidance of any benefice the bishop shall direct the surveyor who shall inspect the buildings of such benefice and report to the bishop what sum if any is required to make good the dilapidations to which the late incumbent or his estate is liable It was held that the provisions as to the time within which the bishop is to direct the surveyor to inspect and report upon the buildings of a benefice after its avoidance is directory only and not imperative and that a direction to inspect and report made by a bishop more than three months after the avoidance of a benefice may be valid Denman J restates the following rules of guidance for construing such provisions i The scope and object of a statute 1 1876 a CPD 562 457 are the only guides in determining whether its pro visions are directory or imperative ii in the absence of an express provision the intention of the legislature is to be ascertained by weighing the consequences of holding a statute to be directory or imperative and iii the statute imposes a public duty upon the Bishop and it does not create a power or privilege for the benefit of the new incumbent as a private person On those grounds among others the learned Judge held that the provision was only directory Venkatarama Ayyar J in Hari Vishnu Kamath vs Syed Ahmad Ishaque 1 made the following observ ations They the rules are well known and there is no need to repeat them But they are all of them only aids for ascertaining the true intention of the legislature which is the determining factor and that must ultimately depend on the context In Craies on Statute Law 5th Edn the following passage appears at p 242 No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience It is the duty of Courts of Justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed Bearing the aforesaid principles in mind let us look at the provisions of section 56 of the Act The object of section 56 of the Act is to prevent the anomaly of the same person occupying a dual role of plaintiff and defendant and to provide for an effective machinery to safeguard the interests of the wards who are placed under the supervision of the Court of Wards Should it be held that the appointment of a representative was at the discretion of the Court of Wards the entire object of the section would be defeated A person for whose benefit the provision was conceived would be represented by the opposite party a situation anomalous in the extreme On the other hand no evil consequences can ordinarily be expected to flow if the provision be 1 1126 458 construed as mandatory A statutory body like the Court of Wards can be relied upon to discharge the duties cast upon it by section 56 of the Act Even if it fails the suit or the appeal as the case may be will be heard on merits or a fresh compromise may be effected after following the prescribed procedure The balance of convenience is on the side of the provision being construed as mandatory rather than as directory In the circumstances I must hold that the intention of the legislature is to make the provision mandatory and therefore the word shall cannot be construed as may as contended by the learned Counsel for the respondent I cannot accept the contention of the learned Additional Solicitor General that even though section 56 is mandatory the non compliance of the provisions of the section does not affect the validity of the compromise If as I have held the appeal could not be proceeded with without the statutory representative on record the whole proceeding including the passing of the compromise without such representative was null and void Before closing the discussion a reference to the decision of the Judicial Committee in Braja Sunder Deb vs Rajendra Narayan Bhanj Deo 1 is necessary as strong reliance is placed upon it in support of the contention that non compliance of the mandatory provision of section 56 would not affect the validity of the compromise decree There a suit between Raja Rajendra Narayan Bhanj Deo and Raja Braja Sunder Deb who became the ward of the Court of Wards after the institution of the suit was compromised The compromise petition was put in the Court and a decree was made thereon Before the High Court for the first time a technical objection was taken The Subordinate Judge decreed the suit in terms of the compromise and a formal decree dated December 22 1922 was drawn and in the cause title of the decree the manager of the Court of Wards was shown as second defendant while he should have been described as the representative of the first defendant But in 1 1937 LR 65 IA57 459 the body of the decree it was clearly mentioned that the manager of the Court of Wards had been substituted as guardian for the ward It was contended therein for the appellant that as the manager of the Court of Wards was made an additional defendant and not made a guardian ad litem of the appellant the compromise decree in the suit was not binding on him The Judicial Committee negatived the contention and held that if the proper parties were on the record and were dealt with on the correct footing the mere want of formality would not make void the bargain of the parties and the decree of the Court But in the present case a mandatory provision had not been complied with and the suit proceeded with the Collector as both the plaintiff and defendant The wards were not represented by their separate representatives for the simple reason that no representatives were appointed There is no analogy between that decision and the present case For the aforesaid reasons I hold that the compromise decree was a nullity and the appeal must be deemed to be pending on the file of the High Court In this view I am relieved of the duty of expressing my opinion on the other questions raised and seriously argued namely whether the Court of Wards has power to settle conflicting disputes between two wards and whether such a settlement would be a lawful agreement within the meaning of Order XXIII rule 3 of the Code of Civil Procedure In the result the order of the High Court is set aside and it is directed to dispose of the appeals in accordance with law The appellant will have his costs here and in the High Court By the Court In accordance with the opinion of the majority the appeals stand dismissed with costs

The respondent company was registered a stock holder under the Iron and Steel Control of Production and Distribution Order 1941 issued by the Central Government in exercise of its powers under r 812 Of the Defence of India Rules On December 10 1949 the Iron and Steel Controller issued a notification under cl 11B of the Order decreasing the prices already fixed for all categories of steel by Rs 30 per ton Crirminal cases were started against the company its three directors its general 628 manager and two sales men under cl 11B read with section 7 of the Essential Supplies Temporary Powers Act 1946 on the allegation that they had sold their old stock of steel for prices higher than those prescribed by the said notification The respondents moved the High Court under article 226 of the Constitution for quashing the said criminal proceedings Their contention was that cl 11B of the Order was invalid and unconstitutional as it violated articles 191f and g of the Constitution It was also urged that the said clause was ultra vires the powers conferred on the Central Government by section 3 Of the Act under which the order must now be deemed to have been issued The High Court held that the cl 11B violated articles 191f and g of the Constitution The Union of India appealed Held that neither cl 11B of the Iron and Steel Control of Production and Distribution Order 1941 nor the impugned notification violated article 191f and g of the Constitution and their validity was beyond question The clear implication of the constitutional validity of sections 3 and 4 of the Essential Supplies Temporary powers Act 1946 as found by this Court in Harishankar Bagla vs The State of Madhya Pradesh is that if the Central Government instead of exercising its own authority under section 3 Of the Act chooses by a notified order to authorise the Controller to pass appropriate orders the notified order cannot be challenged on the ground that it suffers from the vice of excessive delegation All that the Iron and Steel Control of Production and Distribution Order 1941 seeks to do is to prescribe an integrated scheme for the guidance of the Controller and other specified authorities in effectuating the policy laid down by section 3 of the Act and it is obvious that cl 11B of the Order by authorising the fixation of the maximum price for the different categories of iron and steel directly carries out that legislative object namely equitable distribution of the goods at fair prices The power conferred on the Central Government by section 3 and on the specified authority by section 4 Of the Act is canalised by the policy clearly enunciated by section 3 and cl 11B which seeks to further canalise the exercise of that power cannot be said to confer on the delegate uncanalised or unbridled power or suffer from excessive delegation It is apparent therefore that cl 11B read by itself cannot violate article 19 of the Constitution and there is no basis for the argument that by conferring such powers as it does on the Controller it unreasonably restricts the exercise of fundamental rights under article 191f and g of the Constitution It may however still be open to a party to show that a price structure fixed by the Controller by a particular notification violates article 19 of the Constitution But before this can be successfully done he must be able to show not merely that a particular stock holder suffered loss in respect of particular 629 transactions but that in a large majority of cases if not all the impugned notification is likely to adversely affect the fundamental right of the dealers under articles 191f and g of the Constitution Ms Dwarka Prasad Laxmi Narain vs The State of Uttar Pradesh and The State of Rajasthan vs Nath Mul and Mitha Mal distinguished Harishankar Bagla vs The State of Madhya Pradesh explained and applied

Appeal No75 of 1956 Appeal by special leave from judgment and order dated March 17 1955 of the Small Causes Court Bombay in Appeal No 1 of 1955 MC Setalvad Attorney General for India section N Andley J B Dadachanji and Rameshwar Nath for the appellant K B Choudhuri for the respondents 702 1960 January 12 The Judgment of the Court was delivered by GAJENDRAGADKAR J When does an employer get a right to prefer an appeal against a direction made under sub section 3 of section 15 of the 4 of 1936 hereinafter called the Act That is the short question which arises for our decision in the present group of four appeals The decision of this question depends on the construction of section 17 1a of the Act In dealing with the question thus posed by the present group of appeals we will refer to the facts in Civil Appeal No 75 of 1956 and our decision in it would govern the three remaining appeals Civil Appeal No75 of 1956 which has been brought to this Court by special leave arises from a dispute between the General Manager of the Times of India Press Bombay owned by Benett Coleman Co Ltd hereinafter called the appellant and some of the employees in his service hereinafter called the respondents In November 1953 1066 applications were made by the Vice President of the Times of India Indian Employees Union on behalf of some of the respondents before Mr C P Fernandes the authority appointed under the Act in which a claim was made for arrears of increments alleged to have been withheld by the appellant from July 1 1951 to September 30 1953 as also for increased dearness allowance from January 1 1953 to August 31 1953 The authority dealt with the whole group of the said applications as a single application under section 163 of the Act and held that the claim made by the respondents for increased dearness allowance was not justified In regard to the claim of arrears of increments alleged to have been withheld the authority rejected the claim made by 761 employees and allowed the same in respect of 305 employees In the result the order passed by the authority on 31 12 1954 directed the appellant to deposit Rs 22698 for payment to the said 305 employees The direction thus issued by the authority gave rise to two appeals before the Small Causes Court at Bombay which is the appellate authority appointed 703 under the Act Appeal No 11 of 1955 was filed by the appellant while Appeal No 187 of 1954 was filed by the respondents Meanwhile the question about the extent of the right conferred on the employer to prefer an appeal by section 171a of the Act had been considered by the Bombay High Court in Laxman Pandu Ors vs Chief Mechanical Engineer Western Railway BB CI Railway Lower Parel Bombay 1 and it had been held that under the said section the employer gets a right of appeal only if the order of the authority under the Act awards payment of an amount of Rs 300 or more in respect of a single individual worker the right does not exist if the order awards a sum exceeding Rs 300 collectively to an unpaid group of workers every one of whom gets an amount under Rs 300 Following this decision the appellate authority held that the appeal preferred by the appellant was incompetent and so dismissed it The appellant then applied for and obtained special leave from this Court to prefer an appeal against the said appellate decision and so the main point raised by the appeal is about the construction of section 171a of the Act The Act has been passed in 1936 with a view to regulate the payment of wages to certain classes of persons employed in industry Section 151 of the Act authorises the State Government by notification in the official Gazette to appoint any Commissioner for Workmen s Compensation or other officer with experience as a Judge of a Civil Court or as a stipendiary Magistrate to be the authority to hear and decide for any specified area all claims arising out of deductions from the wages or delay in payment of wages of persons employed or paid in that area Section 7 has provided for deductions which may be made from wages Any deductions made not in accordance with the said section and contrary to the provisions of the Act as well as wages the payment of which has been delayed can be brought before the authority under sub s 2 of section 15 Sub section 3 of section 15 empowers the authority to deal with the applications made under sub section 2 and to direct a refund to 1 704 the employed person of the amount deducted or the payment of delayed wages together with the payment of such compensation as the authority may think fit not exceeding ten times the amount deducted in the former case and not exceeding Rs 10 in the latter Sub section 4 provides that in cases where the authority is satisfied that the application made by the employee was either malicious or vexatious it may direct that a penalty not exceeding Rs 50 be paid to the employer or other persons responsible for the payment of wages by the applicant It would thus be seen that section 15 provides for the making of applications by the employees and for their decision in accordance with the provisions of the Act It is necessary to refer to section 16 as well before dealing with the question of the construction of section 171a Section 16 provides for the making of a single application in respect of claims from unpaid group Section 161 provides that employed persons are said to belong to the same unpaid group if they are borne on the same establishment and if their wages for the same period or periods have remained unpaid after the day fixed by section 5 Sub section 2 provides for the making of a single application under section 15 on behalf of or in respect of any number of employed persons belonging to the same unpaid group and prescribes that in such a case the maximum compensation that may be awarded under sub section 3 of section 15 shall be Rs 10 per head Subsection 3 then provides that the authority may deal with any number of separate pending applications presented under section 15 in respect of persons belonging to the same unpaid group as a single application presented under sub section 2 of the said section and the provisions of that sub section shall apply accordingly Thus the effect of section 16 is that a single application may be made on behalf of any number of employed persons belonging to the same unpaid group or if separate applications are made by employed persons belonging to the same unpaid group they may be consolidated and tried as a single application Let us now read section 17 which provides for appeals Section 171 provides that an appeal against a 705 direction made under sub section 3 or sub section 4 of s 15 may be preferred within thirty days of the date on which the direction was made in a Presidency town before the Court of Small Causes and elsewhere before the District Court a by the employer or other person responsible for the payment of wages under section 3 if the total sum directed to be paid by way of wages and compensation exceeds Rs 300 or b by an employed person if the total amount of wages claimed to have been withheld from him or from the unpaid group to which he belonged exceeds Rs 50 or c by any person directed to pay a penalty under subs 4 of section 15 Sub section 2 of section 17 makes the directions made under sub section 3 and sub section 4 of section 15 final save as provided in sub section 1 On a plain reading of section 171a it seems fairly clear that the only test which has to be satisfied by the appellant before preferring an appeal against a direction issued under section 153 is that the total sum directed to be paid by him should exceed Rs 300 Where a single application has been made on behalf of a number of employed persons belonging to the same unpaid group under section 16 sub section 2 and a direction has been issued for the payment of the specified amount it is the said specified amount that must be considered in deciding whether the test prescribed by section 171a is satisfied or not The view taken by the Bombay High Court however is that section 171a is applicable only where the amount directed to be paid to each single applicant exceeds Rs 300 In other words on this view the expression the total sum directed to be paid used in section 171a is construed to mean the total sum directed to be paid to each individual applicant and that clearly involves the addition of certain words in the section If the application is made by a single employee an appeal can be preferred by the employer against the direction issued in such an application if the total sum directed to be paid to the applicant exceeds Rs 300 but if a single application is made on behalf of several employees belonging to the same unpaid group the test to be applied is not whether a direction has been issued that the employer 99 706 should pay Rs 300 or more to each one of the applicants the test clearly is whether a direction has been issued on the said single application calling upon the employer to pay to the applicants Rs 300 or more Reading section 171a by itself we feel no difficulty in reaching this conclusion It is however urged that in construing section 171a it would be relevant and material to compare and contrast its provisions with those of cl b of section 17 sub section Providing for the right of an employee to make an appeal this clause requires that the total amount of wages claimed to have been withheld from him or from the unpaid group to which he belonged should exceed Rs 50 It is emphasised that this clause refers expressly to the case of an individual employee as well as the cases of employees belonging to an unpaid group and the argument is that since cl a does not use the words unpaid group it indicates that the direction about the payment of the amount prescribed by the said clause has reference to each individual employee We are not impressed by this argument Since the Act has provided for the making of a single application on behalf of a number of employed persons belonging to the same unpaid group as well as separate applications made by individual workmen it was unnecessary to refer to the persons employed in the unpaid group while providing for appeals against directions made under section 153 On the other hand if the Legislature had intended that the right to prefer an appeal should accrue to the employer only if Rs 300 or more are directed to be paid to each individual employee it would have used appropriate additional words in cl Therefore the argument based upon the use of the words unpaid group in cl b is not of any assistance in construing cl We are also inclined to think that it could not have been the intention of the Legislature to confer on the employer the right to prefer an appeal only if Rs 300 or more are ordered to be paid to each one of the applicants It is true that the policy of the Act is to provide for speedy remedy to the employees in respect of unauthorised deductions made by the employer or 707 in respect of delayed wages and with that object the Act provides for the appointment of the authority and prescribes the summary procedure for the decision of the claimsbutitseemsveryunlikelythatwhereas an appeal by the employee has been permitted by cl b whenever the amount in dispute happens to be Rs 50 or more in respect of an individual applicant or in respect of the unpaid group the Legislature could have intended that the employer should have no right of appeal against a direction made on a single consolidated application even though the total liability flowing from the said direction may exceed the specified amount of Rs 300 by several thousands In the present case the amount directed to be paid is more than Rs 22000 but it has been held that since each one of the employees is not ordered to be paid Rs 300 or more there is no right of appeal On general considerations therefore the conclusion which we have reached on a fair and reasonable construction of cl a appears to be well founded There is another point to which reference must be made Section 163 empowers the authority to consolidate several applications made by individual employees and bear them as a single application as though it was presented under section 16 sub section 2 and it is urged that this procedural provision cannot and should not have a decisive effect on the employer s right to prefer an appeal under section 171a If several applications made by individual employees are not consolidated and heard as a single application under section 163 and separate directions are issued then the employer would have the right to prefer an appeal only where the total amount directed to be paid exceeds Rs 300 On the other hand if the authority consolidates the said applications and makes a direction in respect of the total amount to be paid to the employees belonging to the unpaid group the employer may be entitled to make an appeal even though each one of the employees receives less than Rs 300 It would be anomalous it is said that the right to appeal should depend upon the exercise of discretion vested in the authority under section 163 We are unable to see the force of this argument We apprehend that 708 ordinarily when several applications are made by the employees belonging to the same unpaid group the authority would prefer to treat the said applications as a single application under section 163 but apart from this practical aspect of the matter if section 163 permits the consolidation of the several applications and in consequence of consolidation they are assimilated to the position of a single application contemplated by section 162 the only question which has to be considered in dealing with the competence of the appeal is to see whether the direction appealed against satisfies the test of section 171a and on that point we feel no hesitation in holding that the test prescribed by section 171a is that the direction should be for the payment of an amount exceeding Rs 300 Besides we think it would not be right to assume that it is anomalous if different consequences follow from the adoption of different procedures in trying employees claims and an appeal does not lie where several applications are tried separately while it lies where similar applications are heard as a single application under section 163 This difference is clearly intended by the Legislature A similar different consequence is prescribed in the matter of the award of compensation by section 15 sub section 3 and section 16sub section 2 respectively Therefore the argument based on the alleged anomaly cannot have any validity inconstruing section 171a Incidentally if one or more employees in the same unpaid group are paid an amount exceeding Rs 300 and the rest are paid less than Rs 300 on the alternative construction the employer would be entitled to make an appeal only in respect of a workman to whom more than Rs 300 is ordered to be paid and not against the others though the total amount directed to be paid to them may exceed by far the amount of Rs 300 In such a case if the appeal preferred by the employer in respect of the amount ordered to be paid to some of the workmen succeeds that would leave outstanding two conflicting decisions with the result that a large number of employees in the same unpaid group may get the amount under the direction of the authority while those who were awarded more 709 than Rs 300 by the authority would get a smaller amount under the decision of the appellate authority We are referring to this anomalous aspect of the matter only for the purpose of showing that where the words used in the relevant clause are clear and unambiguous considerations of a possible hypothetical anomaly cannot affect its plain meaning That is why we prefer to leave anomalies on both sides out of account and confine ourselves to the construction of the words used in section 171a If the said words had been reasonably capable of two constructions it would have been relevant to consider which of the two constructions would avoid any possible anomalies We would therefore hold that the appellate authority was in error in dismissing the appeal preferred before it by the appellant on the ground that it was incompetent under section 171a We would like to add that the question about the construction of section 171a has been considered by the Madras High Court Union of India owning the South Indian Railway by the General Manager vs section P Nataraja Sastrigal Ors 1 and A C Arumugam Ors vs Manager Jawahar Mills Ltd Salem Junction 2 the Calcutta High Court Promod Ranjan Sarkar vs RN Munllick 3 and Assam High Court Cachar Cha Sramik Union vs Manager Martycherra Tea Estate Anr 4 and they have all differed from the view taken by the Bombay High Court and have construed section 171a in the same manner as we have done The result is the appeal is allowed the order of dismissal passed by the appellate authority is set aside and the appeal sent back to it for disposal in accordance with law Since the hearing of the appeal has been thus delayed we would direct that the appellate authority should dispose of the appeal as expeditiously as possible Under the circumstances of this case we would direct that the parties should bear their own costs Appeal allowed 1 AIR 1952 Mad 808 3 AIR 1959 Cal 318 SC 2 AIR 1956 Mad 79 4 AIR 1959 Assam 13

When an enactment is challenged on the ground of violation of fundamental rights it is necessary to ascertain its true nature and character ie its subject matter the area in which it is intended to operate its purport and intent In order to do so it is legitimate to take into consideration all the factors such as the history of the legislation the purpose thereof the surrounding circumstances and conditions the mischief intended to be suppressed the remedy proposed by the legislature and the true reason for the remedy Initially there is a presumption in favour of the constitutionality of an enactment Bengal Immunity Company Ltd vs The State of Bihar R M D Chamarbaughwala vs The Union of India Mahant Moti Das Others vs section P Saki AIR 1959 SC 942 Charanjit Lal Chowdhuri vs The Union of India Others and The State of Bombay vs F N Bulsara referred to On examining the history of the legislation the surrounding circumstances and the scheme of the Act it was clear that the object of the Drugs and Magic Remedies Objectionable Advertisement Act 1954 was the prevention of self medication and self treatment by prohibiting instruments which may be used to advocate the same or which tended to spread the evil Its object was not merely the stopping of advertisements offending against morality and decency Advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed It is only when an advertisement is concerned with the expression or propagation of ideas that it can be said to relate to freedom of speech But it cannot be said that the right 672 to publish and distribute commercial advertisements advertising an individual s personal business is a part of the freedom of speech guaranteed by the Constitution The provisions of the Act which prohibited advertisements commending the efficacy value and importance in the treatment of particular diseases of certain drugs and medicines did not fall under article 191a of the Constitution The scope and object of the Act its true nature and character was not interference with the right of freedom of speech but it dealt with trade and business Lewis J Valentine vs F J Chrestensen R M D Chamarbaughwala vs The Union of India State of Bombay vs R M D Chamarbaughwala John W Rast vs Van Deman Lewis Company Alice Lee Grosjean vs The American Press Co Express Newspapers P Ltd vs The Union of India and J M Near vs State of Minnesota referred to The definition of advertisement which included labels on cartons and bottles and instructions inside cartons was not too wide in view of the object of the Act If the definition was not so broad and inclusive it would defeat the very purpose for which the Act was brought into existence The use of the word suggest in section 3 did not support the contention that the restraint placed by that section was disproportionate The provisions Of section 14c and r 6 which allowed the prohibited advertisements to be sent confidentially by post to a registered medical practi tioner to a wholesale or retail chemist to a hospital or a laboratory only when the words for the use only of registered medical practitioners or a hospital or a laboratory had been inscribed on the outside of every packet containing the advertisement did not impose excessive restraint The provisions of the Act were in the interests of the general public and placed reasonable restrictions on the trade and business of the petitioners and were saved by article 196 Chintaman Rao vs The State of Madhya Pradesh 1950 SCR 759 and Dwarka Das Srinivas of Bombay vs The Sholapur Spinning Weaving Company Limited referred to The words or any other disease or condition which may be specified in the rules made under this Act in cl d Of section 3 which empowered the Central Government to add to the diseases falling within the mischief Of section 3 conferred uncanalised and uncontrolled power on the executive and were ultra vires The legislature had established no criteria or standards and had not prescribed any principle on which a particular disease or condition was to be specified As a consequence the Schedule to the rules also become ultra vires But the striking down of the impugned words did not affect the validity of the rest of cl d or of the other clauses of section 3 as these words were severable 673 The first part of section 8 which empowered any person authorised by the State Government in this behalf to seize and detain any document article or thing which such person had reason to believe contained any advertisement contravening the provisions of the Act imposed an unreasonable restriction on the fundamental rights of the petitioners and was unconstitutional This portion of section 8 went far beyond the purpose for which the Act was enacted and failed to provide proper safeguards in regard to the exercise of the power of seizure and detention as had been provided by the legislature in other statutes If this portion was excised from the section the remaining portion would be unintel ligible and could not be upheld By a portion of cl d of section 3 and the whole of section 8 being declared unconstitutional the operation of the remaining portion of the Act remained unimpaired as these were severable R M D Chamarbaughwala vs Union of India 1957 SCR 930 referred to

Civil Appeal No257 of 1958 Appeal by special leave from the Award dated August 20 1957 of the Industrial Court Bombay in Reference IC No 197 of 1956 C K Daphtary Solicitor General of India section N Andley J B Dadachanji and Rameshwar Nathfor the appellant B P Maheshwari for the respondent I N Shroff for Interveners Nos 1 and 2 The Intervener No 3 did not appear 1960 January 22 The Judgment of the Court was delivered by SUBBA RAO J This appeal raises the question as to what extent the reserves can be deducted from the amount required for rehabilitation of plant and machinery and also as to the manner by which the deductible reserves can be ascertained It would be enough if we narrated only the facts relevant to the question raised The appellant Khandesh Spinning and Weaving Mills Company Limited is a textile mill and its factory is situate at Jalgaon The respondent Rashtriya Girni Kamgar Sangh represents the employees of the appellant Company The respondent on behalf of the employees issued a notice to the appellant under section 422 of the Bombay Industrial Relations Act 1946 demanding payment of reasonable bonus for the period from January 1 1955 to December 31 1955 Negotiations in this regard having failed the respondent made a reference to the Industrial Court under section 73A of the said Act for arbitration of the dispute arising out of the said notice The arbitrator ie the Industrial Court following the Fall Bench Formula ascertained the surplus to be Rs 220 lakhs after deducting the prior charges from the gross profits of the Company but it did not give any credit to the rehabilitation amount apart from the statutory depreciation The Industrial Court disallowed this item for the following reasons It estimated the amount required for rehabilitation at Rs 60 lakhs out of this amount it deducted Rs 51 lakhs representing tile reserves and the balance of Rs 9 lakhs spread over a period of 15 years gave the 843 figure of Rs 60000 as the amount that should be set apart for the year in question for rehabilitation As the statutory depreciation was Rs 83639 it came to the conclusion that the Company would not be entitled to any allocation as a prior charge for rehabilitation After excluding the said item of rehabilitation it The fixed the surplus in a sum of Rs 220 lakbs and awarded to the employees four months basic wages as bonus The learned Solicitor General contended that the Industrial Court accepted the position that the reserves were used as working capital but deducted the said amount from the amount required for rehabilitation on a wrong and unjustified assumption that as the amounts so required would be spent for rehabilitation over a course of 15 years by instalments the temporary user of the said reserves would not affect the question as they would be released in part or in whole in future years He argued that this assumption was contrary to the view expressed in decided cases and also the principle governing the ascertainment of the amount for rehabilitation purposes On the contrary the learned counsel for the respondent argued that the Industrial Court only assumed that the reserves had been utilised as working capital as in the view taken by it did not in the least matter whether the reserves were so utilised or not and that even if that view was wrong the appellant could not succeed unless it proved by relevant and acceptable evidence that the reserves were so utilised and that it did not place before the Industrial Court any such evidence to prove that fact The first ques tion therefore is what is the scope of the finding of the Industrial Court in this regard The Industrial Court in dealing with the contentions of the parties before it observed as follows It is true that until some amount is required to be spent for rehabilitation replacement or modernization reserves must be used as working capital but Shri Vimadalal s argument overlooks that the amount required to be spent for rehabilitation over a course of 15 years is not required to be 844 spent all at once but by installments over a long period These observations did not record any finding that the reserves were used as working capital It was only an assumption made by the Industrial Court as the view taken by it it was immaterial whether the reserves were used as working capital or not We do not think that the aforesaid opinion expressed by the Industrial Court is sound In ascertaining the surplus for the purpose of fixing the bonus for a particular year the state of affairs in that year is the guiding factor If in a subsequent year any part of the reserves used as working capital is released that amount will have to be taken into account in ascertaining the surplus for that year and so on for subsequent years otherwise it will lead to the anomaly of the reserves being excluded from the amount required for rehabilitation though as a matter of fact the entire reserves were utilised as working capital and though in future years they were expected to be released but in fact not so released This would lead to a result inconsistent with the decisions on the subject which have clearly laid down that the reserves which have been used as working capital shall not be deducted from the amount fixed for rehabilitation This result does not advance the case of the appellant unless it is able to prove by admissible evidence that it has used the reserves as working capital during the bonus year in question The principles governing the reserves in this context are well settled This Court in The Associated Cement Companies Ltd vs It3 Workmen 1 restated the principle thus at p 970 Before actually awarding an appropriate amount in respect of rehabilitation for the bonus year certain deductions have to be made The first deduction is made on account of the breakdown value of the plant and machinery which is usually calculated at the rate of 50 of the cost price of the block in question Then the depreciation and general liquid reserves available to the employer are deducted The reserves which have already 1 845 been reasonably earmarked for specific purposes of the industry are however not taken into account in this connection Last of all the rehabilitation amount which may have been allowed to the employer in previous years would also have to be deducted if it appears that the amount was avail able at the time when it was awarded in the past and that it bad not been used for rehabilitation purposes in the meanwhile These are the broad features of the steps which have to be taken in deciding the employer s claim for rehabilitation under the working of the formula This decision therefore lays down so far as it is relevant to the present purpose that two items shall be deducted from the rehabilitation amount ascertained by adopting the Full Bench Formuula namelyigeneral reserves available to the employer and ii reserves which have not already been reasonably earmarked for specific purposes of the industry The question is whether the mere availability of reserves or the simple earmarking for specific purposes would be sufficient to claim the said amounts as deductions We do not think that by using the said words this Court meant to depart from the well recognized principle that if the general reserves have not been used as working capital they cannot be deducted from the rehabilitation amount The reserves may be of two Kinds Moneys may be set apart by a company to meet future payments which the company is under a contractual or statutory obligation to meet such as gratuity etc These amounts are set apart and tied down for a specific purpose and therefore they are not available to the employer for rehabilitation purposes But the same thing cannot be said of the general reserves they would be available to the employer unless he his used them as Working capital The use of the words reasonably earmarked is also deliberate and significant The mere nominal allocation for binding purposes such as gratuity etc in the company s books is Dot enough It must be ascertained by the Industrial Court on the material placed before it whether the said amount is far in excess of the requirements of the particular purpose for which 846 it is so earmarked and whether it is only a device to reduce the claim of the labour for bonus We do not suggest that it is the duty of the Industrial Court to ascertain the correct or exact figure required for a particular purpose but it is certainly its duty to is cover whether the so called earmarking for a particular purpose is a device to circumvent the formula If it is satisfied that there is such a device it shall deduct that figure in calculating the rehabilitation amount and if possible arrive at a real figure for that purpose So too in the case of general reserves when an employer claims that a specific amount reserved has been used as working capital it is the duty of the Industrial Court to arrive at a finding whether the said reserves or any part of them have been used as working capital and if so to what extent during the bonus year Shortly stated before a particular reserve can be deducted from the rehabilitation amount it must be established that it has been reasonably earmarked for a binding purpose or the whole or a part of it has been used as working capital and that only such part of the reserves coming under either of the two heads can be deducted from the said amount To illustrate take a particular bonus year say 1955 To start with from the gross profits of that year only items specifically declared by this Court in The Associated Cement Companies Ltd vs Its Workmen to have a prior charge over the bonus shall be deducted to arrive at the surplus No question of deducting any other amount reserved in regard to the profits of that year arises But the company has specifically earmarked certain amounts for specific binding purposes in 1954 or earlier to meet future binding obliga tions such as gratuity etc or has reserved amounts for general purposes but not to meet any contractual or statutory obligations and has not utilised the same as working capital In the former case the amount must be deemed to have been utilised and therefore it cannot be deducted from the rehabilitation amount but in the latter case as the said amounts were not utilised by the employer as working capital they shall be deducted from the rehabilitation amount 1 847 What taken is the procedure to be followed for ascertaining the said facts The burden is obviously on the employer who claims the exclusion of the reserves from the rehabilitation amount on the ground that they are used as working capital or reasonably earmarked for a specific purpose to establish the said facts and to prove the same by relevant and acceptable evidence The importance of this question in the context of fixing the amount required for rehabilitation cannot be over estimated The item of rehabilitation is generally a major item that enters into the calculations for the purpose of ascertaining the surplus and therefore the amount of bonus So there would be a tendency on the part of the employer to inflate this figure and the employees to deflate it The accounts of a company are prepared by the management The balance sheet and the profit and loss account are also prepared by the company s officers The labour have no concern in it When so much depends on this item the principles of equity and justice demand that an Industrial Court should insist upon a clear proof of the same and also give a real and adequate opportunity to the labour to canvass the correctness of the particulars furnished by the employer Cases coming before us disclose that the Industrial Courts and Labour Tribunals are not bestowing so much attention on this aspect of the case as they should Some of the tribunals act oil affidavits and sometimes even on balance sheets and extracts of accounts without their being proved in accordance with law For the purpose of holding an enquiry or a proceeding under the Bombay Industrial Relations Act 1946 section 118 of the said Act confers on the Industrial Court the same powers as are vested in Courts in respect of a proof of facts by affidavits b summoning and enforcing the attendance of any person and examining him on oath c compelling the production of documents and d issuing commissions for the examinations of witnesses In Courts facts have to be established either by oral evidence or by documentary evidence proved in the 108 848 manner prescribed by law But Order XTX of the Code of Civil Procedure empowers the Court to have particular facts proved by affidavits Under rule thereof any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit or that the affidavit of any witness may be read at the hearing on such conditions as the Court thinks reasonable But it is subject to the proviso that where it appears to the Court that either part bonafide desires the production of a witness for cross examination and that such witness can be produced an order shall not be made authorizing the evidence of such witness to be given by affidavit Under rule 2 upon any application evidence may be given by affidavit but the Court may at the instance of either party order the attendance for cross examination of the deponent A combined effect of the relevant provisions is that ordinarily fact has to be proved by oral evidence but the Courts subject to the conditions laid down in Order XIX may ask a particular fact or facts to proved by affidavits Industrial Courts may conveniently follow the procedure In view of the importance of the item of rehabilitation in the matter of arriving at the surplus for fixing the bonus principles of equity and justice demand that tribunals should weigh with great care the evidence adduced by the management as well as by the labour to ascertain every sub item that goes into or is subtracted from the rehabilation If the parties agreeagrred figure can be accepted If they agree to the decision of affidavits that course may be followed in the absence of an agreement the procedure prescribed in Order XIX of the Code of Civil Procedure may usefully be followed by the tribunals so tlitt both the parties may have full opportunity to Establish their respective cases Recent decisions of this Court emphasize this aspect of the matter In lndian Hume Pipe Company Ltd vs Their workmen 1 the balance sheet was upon for proving that the amounts were available for use as working capital and that the 1 5 849 balance sheet showed that they were in fact so used Bhagwati J who delivered the judgment of the Court presumably to meet the contention that the balance sheet had not been proved observed at p 362 thus Moreover no objection was urged in this behalf nor was any finding to the contrary recorded by the tribunal In that case it was conceded that the reserves were in fact used as working capital It is suggested that the learned Judge solely relied upon the relevant items in the balance sheet in support of his conclusion and that the said observation was only an additional ground given by him but we are inclined to think that the Court would not have accepted the items in the balance sheet as proof of user if it was not satisfied that no objection was taken in that behalf In Tata Oil Mills Company Ltd vs Its Workmen 1 a similar question was raised It was contended by the labour in that case that the depreciation reserve was Dot used as working capital and therefore no return should be allowed on the said reserve The Chief Accountant of the Company made an affidavit on behalf of the Company that the said depreciation reserve along with others had been used as working capital This Court accepted the affidavit for the year in question but made the following observations for future guidance It will however be open to the workmen in future to show by proper cross examination of the company s witnesses or by proper evidence that the amount shown as the depreciation reserve was not available in whole or in part to be used as working capital and that whatever may be available was not in fact so used in the sense explained above In the present appeal howeverwe must accept the affidavit of the chief accountant These observations also recognized the necessity to give an opportunity to the workmen to cross examine the witnesses put forward by the management to prove the user of any particular reserve as working capital This Court once again dealt with the same 1 850 subject in Anil Starch Products Ltd vs Ahmedabad Chemical Workers Union 1 That appeal also raised the question whether return should be allowed on the depreciation reserve used as working capital It was contended for the labour in that case that the depreciation reserve was not used as working capital Rejecting the said contention Wanchoo J observed It is enough to say in that connection that an affidavit was filed by the manager of the company to the effect that all its reserves including the depreciation fund had been used as working capital The manager appeared as a witness for the company before the Tribunal and swore that the affidavit made by him was correct He was cross examined as to the amount required for rehabilitation which was also given by him in that affidavit but no question was put to him to challenge his statement that the entire depreciation reserve had been used as working capital In the circumstances we must accept the affidavit so far as the present year is concerned and hold that the working capital was Rs 34 lacs Notwithstanding the said finding the learned Judge took care to reserve the rights of the workmen in future by making the following observations It will however be open to the workmen in future to show by proper cross examination of the companys witnesses or by proper evidence that the amount shown as depreciation reserve was not available in whole or in part as explained above to be used as working capital and that whatever was available was not in fact so used This judgment again reinforces the view of this Court that proper opportunity should be given to the labour to test the correctness of the evidence given on affidavit on behalf of the management in regard to the user of the reserves as working capital What is the position in the present case It is not suggested that there is any reserve which has been reasonably earmarked to discharge a contractual or statutory obligation We are only concerned with 1 Civil Appeal No 684 Of 1957 not reported 851 general reserves The learned Solicitor General contends that the balance sheet discloses that the entire reserves have been used as working capital and that the respondent did not canvass this position in the statement filed by it before the Industrial Court We have already pointed out that the balance sheet without its being proved by a person competent to do so cannot prove that any reserves have been utilised as working capital In the written statement filed by the appellant before the Industrial Court no specific allegation is made that the reserves were utilised as working capital though in its statement of calculations the said reserves were not excluded from the amount claimed towards rehabilitation As there is no specific allegation the respondent also in its statement did not deny the said fact but in its statement of calculations it did not deduct the reserves from the rehabilitation amount Therefore it must be held that the respondent did not accept the position that the reserve funds were utilised as working capital Strong reliance is placed upon the evidence of the General Superintendent of the appellant Company but a perusal of that evidence discloses that the said witness has not deposed that the Company used the reserves as working capital nor does the said witness seek to prove either the balancesheet or any extract taken therefrom In the circumstances the respondent had no opportunity to cross examine him in respect of the alleged user of the reserves For the aforesaid reasons we have no option but to hold that Rs 51 lakhs representing the reserves were not used as working capital and therefore the said amount was rightly deducted by the Industrial Court from Rs 60 lakhs fixed by it towards rehabilitation As the balance of Rs 9 lakhs spread over 15 years came to only Rs 60000 during the bonus year and as the statutory depreciation was Rs 83639 the Industrial Court rightly excluded the entire rehabilitation amount from its calculations in arriving at the surplus No other points were raised before us In the result the appeal fails and is dismissed with costs Appeal dismissed

The respondent proprietor of Ramnagar Estate filed a suit against the appellant proprietor of Ganeshpur Estate for the recovery of certain properties The appellant filed a cross suit against the respondent During the pendency of the suits the appellant was declared to be a person of unsound mind and the Court of Wards assumed superintendence of her properties under the U P Court of Wards Act and placed them in charge of the Deputy Commissioner of Barabanki Thereupon the cause titles on the suits were amended and in place of the appellant s name the Deputy Commissioner Barabanki IC Court of Wards Ganeshpur Estate was substituted The Trial Court partly decreed the respondent s suit and dismissed the appellant s suit Both parties preferred appeals to the High Court While the appeals were pending the Court of Wards took over the Estate of the respondent also and placed it also in charge of the Deputy Commissioner Barabanki The cause titles of the appeals were then amended and for the name of the respondent the name Deputy Commissioner Barabanki IC Court of Wards Ramnagar Estate was substituted Thereafter the Court of Wards passed a resolution settling the appeal on certain terms and under its instructions the lawyers for the parties presented petitions to the High Court for recording compromises in the appeals The High Court passed decrees in terms of the compromises Shortly afterwards the Court of Wards released the two estates Later the appellant recovered from her affliction and was declared to be of sound mind She presented two applications to the High Court alleging that the compromise decrees were a nullity and praying for a proper disposal of the appeals The High Court rejected the applications The appellant contended that the compromise decrees were a nullity i as the Court of Wards had not complied with the mandatory provisions of section 56 of the Act ii as there could not in law be a compromise unless there were two parties but in this case there was only one party the Deputy Commissioner Barabanki and iii as the High Court failed to appoint a disinterested person as I guardian of the appellant who 432 was of unsound mind under 0 XXXII of the Code of Civil Procedure Held per section K Das and A K Sarkar jj that the compromise decrees were not a nullity and were binding on the parties Section 56 of the Act which provided that when in a suit or proceeding two or more wards had conflicting interests the Court of Wards shall appoint for each such ward a representative to conduct or defend the case on behalf of the ward whom he represented was clearly direct and the failure of the Court of Wards to observe the provisions thereof did not render the compromise decrees a nullity A directory provision did not give discretionary power to do or not to do the thing directed it was intended to be obeyed but a failure to obey it did not render a thing duly done in disobedience of it a nullity When the appeals were compromised the compromise between the parties to the appeals namely the appellant and the respondent It was not a compromise which the Deputy Commissioner Barabanki made with himself though he repre sented both the parties There was nothing in the Act which indicated that the Court of Wards did not have the power of making a contract between two wards The Deputy Commissioner Barabanki had been appointed the guardian of the appellant under the Act and he was entitled to act as her guardian for the appeals under 0 XXXII r 4 Of the Code The Court of Wards was different from a private guardian and could be trusted to be impartial The High Court was right in leaving the interests of the appellant in charge of the Court of Wards though it was also in charge of the interests of the respondent Per K Subba Rao J The compromise decrees were a nullity The provisions of section 56 of the Act were mandatory and a non compliance therewith vitiated the proceedings The inten tion of the legislature should be gathered from the object of the Act and from a consideration of the inconvenience that may be caused by accepting the one or the other of the views The object of section 56 was to prevent the anomaly of the same person representing two conflicting interests and to safeguard the interests of the wards placed under the supervision of the Court of Wards No inconvenience would result from holding the provisions to be mandatory The word shall in section 56 could not be read as may jagan Nath vs jaswant Singh Queen vs Ingall Caldow vs Pixwell Hari Vishnu Kamath vs Syed Ahmad Ishaque and Braja Sunder Deb vs Rajendra Narayan Bhanj Deo 1937 LR 65 IA 57 referred to

Appeal No 208 of 1955 Appeal from the judgment and decree dated November 27 1951 of the former Nagpur High Court in Second Appeal No 169 of 1947 arising out of the judgment and decree dated February 3 1947 of the First Additional District Judge Amraoti in Civil Appeal No 85 A of 1946 against the judgment and decree dated December 20 1945 of the Civil Judge First Class Ellichpur in Civil Suit No 1 of 1943 W section Barlingay and A G Ratnaparkhi for the appellant H J Umrigar and Sardar Bahadur for respondent No 1 R Ganapathy Iyer M P Nathwani and R H Dhebar for respondent No 2 1960 January 12 The Judgment of the Court was delivered by section K DAS J This is an appeal on a certificate section K Da J granted by the High Court of Nagpur under clause c 712 of Article 1331 of the Constitution to the effect that the case is a fit one for appeal to this Court It raises some important questions as to the right of the revenue authorities of the State Government concerned to resume certain lands which are known as patel ki huq inam lands situate in what was previously known as the ceded area of Berar The plaintiff Bhagwantrao Shivaji Patel Bhagwantrao to give his short name is the appellant before us Vishwasrao Patel who was defendant No 2 in the suit is now respondent No 1 Originally the Provincial Government of the Central Provinces and Berar was defendant No 1 and now the State of Bombay is respondent No 2 before us Formerly the lands in suit lay within the province of Central Provinces and Berar later they fell within the State of Madhya Pradesh and now they are in Bombay The relevant facts which have given rise to the appeal may now be shortly stated The lands in suit were comprised in six survey numbers stated in paragraph one of the plaint They lay in village Nawabag a jagir village of Ellichpur now called Archalpur taluq of Berar and we shall hereinafter give some more details of that jagir In that village there were four families of Patels some members of which held the Patel s office in rotation of ten years each These four families went by the surnames of Dongre Rokade Raut and Ingle We are concerned with the Rokade family One Shivajirao of that family had two sons called Amrit and Bhagwant Bhagwant as we know is the appellant before us Vishwasrao respondent No 1 is the son of Amrit Shivajirao died sometime in 1886 His son Amrit died in 1920 In 1923 there was a partition between the appellant and respondent No 1 The case of the appellant was that as a result of this partition the patelki inam lands were divided and the lands in suit were allotted to the share of the appellant When Shivajirao was alive he worked as patel so did Amritrao in his turn Lastly Vishwasrao also worked as patel In 1935 a special officer was appointed by Government to prepare a record of rights of the jagir village of Nawabag This 713 officer submitted a report on which certain enquiries were made As a result of these enquiries it was held that the appellant was not entitled to hold the patelki inam lands which were given as emoluments of his office to the working patel from the Rokade family It was ordered by the Deputy Commissioner that the lands in possession of the appellant should be resumed and regranted to the working patel viz respondent No 1 The appellant appealed against this order The Commissioner of Berar set aside the order of eviction but maintained the status quo pending final orders of Government Ultimately on December 19 1941 the Financial Commissioner held that the person actually working as patel was entitled to receive the full emoluments of his office and revenue officers had consistently refused to admit any claims to shares in patelki emoluments Accordingly he set aside the order of the Commissioner and restored that of the Deputy Commissioner Thereupon the appellant brought his suit in 1942 in which he claimed that the Government had no jurisdiction or authority to resume and regrant the lands to respondent No 1 and the orders passed by the revenue authorities concerned were null and void The appellant asked for possession and mesne profits By a subsequent amendment of the plaint the appellant alleged that at least two of the plots 211A and 91A had ceased to be patelki inam lands and were private property of the family Therefore in any view of the matter Government had no right to resume these two plots His claim with regard to these plots was alternatively placed on a somewhat different footing and we shall in due course consider that claim The suit was dismissed by the trial Judge but on appeal by the present appellant the learned Additional District Judge of Amraoti decreed the suit There was a second appeal to the High Court of Nagpur which allowed the appeal set aside the decree of the lower appellate court and restored that of the trial Judge The High Court substantially held that 1 the lands in suit were granted by the then sovereign authority by way of remuneration or emoluments for 91 714 services to be rendered by the patel and the grant was recognised as a service inam by the British Government and 2 it was open to the revenue authorities to resume and regrant the lands in accordance with the provisions of the Patels and Patwaris Law 1900 in force in Berar and section 190 of the Berar Land Revenue Code 1928 Thereafter the appellant applied for and obtained a certificate from the High Court and the present appeal has been brought pursuant to that certificate To appreciate the points which have been urged before us on behalf of the appellant it is necessary to state some more historical facts about the jagir village Nawabag and the patelki inam lands comprised therein The original sanads by which the jagir of Nawabag or the patelki inam was created have not been produced in this case There is no doubt howeverthat both are of very ancient origin Berar was ceded by the Nizam of Hyderabad in 1853 and the Inam Rules for settlement of jagir and inam claims were made in 1859 Rule 1 whereof stated inter alia that land which was proved to have been held as inams either under a fixed quit rent or rent free for a period of 40 years before the cession was to be treated by the British Government as inam possessed under a valid title The promulgation of the Inam Rules was followed by an inams investigation exhibit P 1 is the copy of an inam entry dated August 31 1866 This document shows that the jagir of Nawabag was granted by the Kings of Delhi to one Shah Abdul Huq originally It was subsequently continued and confirmed by sanads granted by the Nizam of Hyderabad in 1757 The village had a total area of about 1846 bighas out of which about 262 bighas were held by patels in lieu of their huq in the proportion of I bighas per netan a measure of nine bighas The Inam Commissioner stated that the jagir had been held upward of 100 years before the inam enquiry and should be continued except for an area of 200 big has for which there was no satisfactory proof in perpetuity subject to a quit rent of Rs 87 8 0 There is an earlier document exhibit P 9A of October 241771 715 which shows that there was a dispute between the jagirdars and the patels about the latter s right to get If bighas of patelki inam land per netan The jagirdars disputed the claim of the patels and ultimately the dispute was submitted to the Nazim Sahib of Ellichpur The document contains the following recital which shows that the patelki inam lands of village Nawabag were also very ancient grants The Nazim after seeing from the previous records as to who was in enjoyment granted the mukaddami inamof a bigha and a half from year to year as desired by the mukaddaman As per the old judicial usage land is calculated at the rate of one and half bigha pernetan and measured out from the lands of Nawabag and the aforesaid mukaddaman are held to be occupants of the said cultivated landIt appears that out of 262 bighas of patelki inam lands in the village the Rokade family held about 11 plotsapproximately of about 50 acres Sometime before 1904 some of the co sharer jagirdars of Nawabag ali enated the jagir lands to strangers This led to resumption proceedings by Government and ultimately half of the jagir village was resumed by Government in or about 1904 05 As a result of a detailed enquiry survey numbers 1 to 21 and 40 to 45 of the patelki inam lands fell in the resumed portion and survey numbers 22 to 39 were included in the jagir portion As survey numbers 2IA and 9IA in possession of the Rokade family fell in the resumed portion they were recorded as Khalsa and were assessed to revenue while the remaining survey numbers viz 291 343 362 and 372 continued to be in possession of the Rokade family free of assessment There was another resumption proceeding in or about 1917 when it was discovered that the jagirdars had alienated lands falling in the jagir portion also This time the lands resumed were not made Khalsa but were regran ted to the jagirdas As a result of this regrant the jagirdars thought that they were entitled to take possession of the patelki inam lands of the Rokade family also This led to some more revenue proceedings and we come now to one of the important 716 documents in this case viz a letter dated August 28 1922 by which sanction of Government was conveye to the exclusion from resumption of 25 acres and 15 gunthas of land in the khalsa portion of the village and to the exclusion from the land regranted to the jagirdar viz of 24 acres 30 gunthas in the inam portion of Nawabag jagir village The order made by the Government further stated that the aforesaid lands would be recorded in the name of Amrit Shivaji Patel as his patelki huq inam Some of the other patel families made an attempt to get a release of the inam lands held by them which had since been resumed but this attempt proved unsuccessful and Government held that an enquiry showed that with the exception of Amritrao no member of the old patelki families except Deo Rao was in possession of the old patelki inam lands and as Deo Rao did not belong to a branch in which the right to officiation resided his claim could not be considered The order of Government in 1922 therefore made it clear that the patelki inam lands of Amritrao formed one homogenous separate service grant and were not dependent on the resumption of the jagir of Nawabag The proceedings of 1917 1922 were followed by the proceedings of 1935 1941 which culminated in a third resumption of the patelki inam lands and regrant to Vishwasrao and to Which we have earlier referred These proceedings bring the history of the lands in suit up to the time when the appellant brought his suit in 1942 Now apart from the alternative claim with regard to survey numbers 2IA and 9IA and the claim of title by adverse possession which claims we shall consider later the principal question which falls for decision in this appeal is the true nature of these patelki inam lands do they constitute a grant by way of remuneration or emoluments of the patel s office by the use of the lands as found by the High Court or do they constitute a grant of land to the patelki family burdened with service and so long as the service is performed by any member of the family the lands are joint family lands subject to partition 717 etc among the members of the family Onbehalf of the appellant it has been very stronglycontended before us that the finding of the High Court on this point is wrong On this part of the case learned counsel for the appellant has made a four fold submission firstly that the rights which the Rokade family had in these lands were rights of dealing with the property as owners subject to a member of the family rendering patelki service or in other words the grant was a grant of land burdened with service secondly the grant was made by the jagirdar of village Nawabag and not by the sovereign authority and neither the Inam Rules nor the provisions of the Patels and Patwaris Law 1900 applied thirdly even if the aforesaid Rules and provisions applied the appellant still retained his hereditary rights in the lands and fourthly the orders of Government dated August 28 1922 did not confer any new right nor did they deprive anybody of any subsisting right in respect of the patelki inam lands and Government had no right to resume the lands and regrant them to respondent No 1 The second submission can be disposed of without much difficulty We have already stated that the sanads creating the jagir or the patelki inam have not been produced The earliest document we have is the kararnama of October 24 1771 That document shows as we have stated earlier that there was a dispute between the jagirdars and the patels the patels were demanding I bighas per netan as their huq and the jagirdars were saying that no such huq was mentioned in the sanads granted to the jagirdars The dispute was referred to the Nazim who was the local representative of the then sovereign authority and the decision of the Nazim was expressed by saying that the Nazim granted the inam of a bigha and a half from year to year for each netan it was also stated that this was supported by old judicial usage In our view the kararnama shows two things first the grant of patelki inam of 1 12 bighas per netan was in its origin a grant by the sovereign authority which the Nazim confirmed in accordance with old 718 judicial usage secondly that the grant was from year to year in lieu of patelki services and was binding on the jagirdars who agreed to be bound by it The entry in the Inam Register dated August 31 1866 exhibit P 1 is to the same effect it shows that 262 bighas were excluded from the jagir as allowed to patel in lieu of his huq to 1 12 bighas in contradistinction to other petty inams allowed by the holders jagirdars themselves On behalf of the appellant our attention has been drawn to Rules 1 and 11 of the Inam Rules and to Rule XV it has been submitted that if the patelki inam was separate from and independent of the jagir which was a class 111 inam a separate title deed in the form of an inam certificate would have been granted in respect of the patelki inam as a class IV inam It may be as the High Court points out that the patelki inams were not separately recognised during the inam enquiry and it was then assumed as if these were interests carved out of the lands granted to the jagirdars There is how ever clear evidence in the record that the patelki inam of this case was independent of the jagir Immediatly after the first resumption proceedings against the jagirdars in 1904 05 the position of the patels came under consideration of the revenue authorities In 1906 one Moti of Dongre family was appointed patel by the Sub divisional officer Ellichpur In 1907 Amrit son of Shivaji was appointed patel in the Rokade family to officiate in rotation with Moti This appointment was made by the Deputy Commissioner In 1908 there was a dispute between the jagirdars and patels and the order of the Sub divisional officer who decided the dispute said The Jagirdar says that his family appointed Patels from the watan family but this is not borne out by such papers as exist There is a petition dated 4 1 67 from the Jagirdar requesting the Revenue authority of the time to appoint a certain person as Patel At that period then the Revenue authorities and not the Jagirdar appointed the Patel The Patels are village servants only and are responsible only to the Government and not to the Jagirdar 719 The Patel family has had watandari rights for certainly 150 years or so I am of opinion therefore that the watan seems independent of the Jagir This dispute went up to Commissioner Sly later Sir Frank Sly and he held that the patelki is a watan independent of the jagir and he approved the proposal for rotation between Moti and Amrit The patelki inams were treated on the same basis in the resumption proceedings of 1917 1922 and by the order dated August 28 1922 Government excluded the patelki inam lands from the resumption proceedings relating to the jagir on the footing that they were separate from and independent of the jagir Mr Walker then Financial Commissioner said in his order dated August 7 1918 exhibit ID 11 Although the Patel holds no Inam Certificate I agree with the Commissioner that the inam resumption procedure which was necessitated by the action of the jagirdar ought not to upset the arrangement concerning the Patels which was made at the suggestion of His Exalted Highness the Nizam s Government many years ago To give effect to this view it will be necessary to reopen the enquiry as regards the whole village both the khalsa part and the regranted inam part and to determine what fields in each represent the original grant of 262 bighas to the Patel in lieu of his huq When that area has been determined the orders of resumption will have to be modified so as to exclude it There is therefore overwhelming evidence in this case to show that the patelki inams were separate from and independent of the jagir of Nawabag though the lands lay within the jagir village This brings us to the more important question what is the true character of the patelki inam lands of this case On this point also we think that there is clear and unimpeachable evidence in support of the finding of the High Court We have already referred to the kararnama of 1771 and the inam entry of 1866 If the grants were a grant of land to the patelki 720 families burdened with service it is difficult to under stand how there could arise a dispute about remuneration between the jagirdars and patels and why the remuneration of 1 12 bighas per netan should be fixed from year to year In a revenue case of 1908 Amrit Patel had himself stated that the land was given to his ancestors in lieu of patelki huq and it should not be assessed to land revenue Even in his plaint the appellant had asserted that the Patels were given certain lands out of the jagir village for their working as patels and for discharging other duties There is another important document in this connection In the second resumption proceedings of 1917 Government had first decided to resume the jagir and regrant it to the then Jagirdar Amerulla Khan In the orders passed exhibit ID 18 it was stated that the Jagirdars would be at liberty to allow the working patels to hold such lands as were considered reasonable by the Deputy Commissioner free of revenue and in lieu of mushahara emoluments or wages It is important to note that everybody understood then that the patelki inam was in lieu of wages or emoluments for the office of patel These orders led to an enquiry and Amritrao made a statement that he was holding survey numbers 26 27 29 34 36 and 37 in lieu of patelki emoluments He said that he was even willing to hold 4 acres 17 gunthas of survey No 27 in lieu of his emoluments It appears that the Sub divisional officer then recommended that Amrit Patel should be given only 4 acres 17 gunthas as emoluments for his office Later an application was made on behalf of Amrit which was signed by his brother the present appellant as his agent in which occurred the following significant statements The learned SDO has again lost sight of the fact that the family of the applicant has been doing the work of the Patel from a very long time that in the early days of the Berar Administration when land had no value and did not fetch the income it is doing now the applicant and his predecessors worked to what they would get from the land Cash had more value then than land and hence the Inamdars thought 721 it is advisable to commute money payment into land grant That the learned Sub Divisional Officer has lost sight of the fact that in the inam enquiry and the sanad granted to the Inamdar of the Nawabag Jahagir in 1866 the land in the possession of the applicant has been deducted from the area of the village and it isonly the rest of the area that is made over to theInamdar vide Co 5 of the sanad viz area of grant This shows that in 1866 the area reserved for the Patel was considered as a fair remuneration in kind to the Patel for his work These statements show clearly enough what the appellant and his brother Amrit understood to be the character of the patelki inam lands they clearly said that the lands were given in lieu ofemoluments or remuneration This view ultimatelyprevailed and the earlier orders were modified on the recommendation of Commissioner Standan who saidthat the lands held by the patel as patelki inam should be excluded from resumption and the patel should be allowed to hold the lands free of any payment in lieu of cash remuneration for his office Inthe result were passed the orders dated August 281922 to which a reference has already been made These transactions and the statements made thereinare admissible in the absence of the sanads creatingthe grant to show how the parties themselves haveunderstood and dealt with the grant in contestedrevenue proceedings between the jagirdars and patels On behalf of the appellant it has been submittedthat there is evidence in the record to show that someof the patels had alienated patelki inam landsand the patelki inam lands of each patel remainedwith him in spite of the fact that the office was heldin rotation these circumstances it is contendedmilitate against the view that the grant was a meregrant of office with emoluments in the shape of Inamlands We are unable to accept this contention ascorrect The statement of the appellant himself in a 92 722 revenue case of 1937 38 exhibit ID 15 shows that the lands alienated by the other patels were resumed and regranted to the jagirdar in the resumption proceedings of 1917 18 After Amritrao had succeeded in getting his patelki inam lands excluded from resumption the other patels also unsuccessfully attempted to get their lands released a circumstance to which we have earlier referred This shows that Government never accepted the position that the patelki inam lands could be freely alienated on the contrary the evidence in the record shows that Government had resumed such lands on more than one occasion As to the second circumstance it is indeed true that the office was rotatory this is provided for in section 3 of the Patels and Patwaris Law 1900 but each patel retained his inam land even when it was not his turn to work as patel We do not however consider this circumstance as establishing that the grant was other than what the High Court held it to be Section 3 of the Patels and Patwaris Law 1900 says in clear terms that when there are two or more patels in a village and the duties can in the opinion of the Deputy Commissioner be efficiently performed by one patel the Deputy Commissioner can direct that each patel shall hold office in turn by rotation for a term of not less than 10 years This does not mean that a patel ceases to be a patel when his turn is over he continues to be a patel and enjoys his emoluments We propose now to examine the position Under the Inam Rules 1859 the Berar Patels and Patwaris Law 1900 and the Berar Land Revenue Code 1928 The argument on behalf of the appellant is that even under the Inam Rules he is entitled to his share in the patelki inam lands so long as a member of the family works as patel Learned counsel for the appellant has drawn our attention to Rules V and VI and has submitted that being a service inam the it patelki inam would come under the fourth class mentioned in Rule 11 and would be governed by Rule VI2 which says Inams granted in lieu of lands or money stipends commonly called huqs and ressums of offices such as 723 Deshmukh Deshpandia and others the service of which has either been dispensed with or otherwise discontinued shall be disposed of according to clause of the Rule V if they are hereditary in their terms either by express declaration of Government or by recognized usage Nothing in this rule shall be deemed to apply to cash allowance known as ressums or lawazamas granted to Deshmukhs and Deshpandias in lieu of emoluments previously payable to them That Rule refers to clause 2 of Rule V which reads If the present incumbent is a descendant of the original grantee the inam will be continued to him hereditarily subject to the following conditions First Successions limited to direct lineal heirs and undivided brothers Second The inam escheats to Government on failure of such heirs Third Future alienation of the inam is prohibited Fourth The right of adoption to an inam is not recognized The contention before us is that under Rule VI2read with Rule V2 the appellant was entitled to his share in the inam as an undivided brother of Amritrao Patel We do not think that this contention is correct For one thing Rule VI2 applies to inams granted in lieu of lands or money stipends the service of which has either been dispensed with or otherwise discontinued That is not the case here Secondly clause 8 of Rule VI makes it clear that when the inam attached to the office is wholly or partially in the enjoyment of members of the family who do not perform service such portion of the alienated inam as may be considered necessary for the efficient performance of the duties will be attached to the office holders and Rule XIV2 says that service grants are not liable to be alienated by purchase or otherwise Rule VIII explains the term inam and Rule 11 also has a bearing on the question before us It says so far as it is relevant for our purpose The settlement will be made with the head member of the family holding the office or enjoying the 724 inam and who will be held alone responsible to Government and in no case will the Government interfere to compel the actual incumbent of an office to make over any portion of his regulated service grant to other branches of the family as service grants cannot be divided according to the orders of Government Rule XXI2 says interalia that in respect to service grants the decisions of the Commissioner and the Resident respecting lands held free by the village officers as remuneration for service shall be considered final From these Rules it is manifestly clear to us that there is nothing in them on the basis of which the appellant can claim as of right that he has a share in the patelki inam lands as a member of the patel s family irrespective of whether he performs the service or not The position under the Patels and Patwaris Law 1900 appears to be clearer still Section 9 of the said Law states that the emoluments appertaining to the office of the patel or patwari shall be enjoyed solely by the person for the time being holding the office even a substitute shall receive the whole of the emoluments appertaining to the office unless the Deputy Commissioner otherwise directs and if there are two or more patels in a village the Deputy Commissioner shall determine the proportions in which they shall share in the emoluments of office Sections 10 and 1 1 say that the emoluments appertaining to the office of patel shall not be liable to attachment or sale and every assignment thereof shall be void Under section 20 the jurisdiction of the Civil Court is barred with respect to any claim by any person to any emolument appertaining to the office of patel These provisions clearly indicate that the patelki inam lands are subject to orders passed by the revenue authorities in respect of the matters mentioned therein and no right is given to a member of the family of the patel to claim a share in the emoluments The power to resume lands granted on condition that the holder shall render certain services is 725 specifically referred to in s190 of the Berar Land Revenue Code We quote below the material portion of the section Section 1901 If alienated land has been granted on condition that the holder shall render certain services or incur expenditure for the benefit of the community or any section thereof and the holder fails to render such services or to incur such expenditure to the satisfaction of the Deputy Commissioner or if the holder transfers the land in such a manner that in ther opinion of the Deputy Commissioner the purpose of the grant is likely to be defeated the Deputy Commissioner may declare such land to be forfeited 2 Land forfeited under this section shall vest in the Crown for the purposes of the Province free of all encumbrances and shall be regranted on the original conditions made under this Law Section 192 says inter alia that no civil court shall entertain any suit to obtain a decision on any matter which the revenue authorities are empowered under the Law to determine and among the matters mentioned in the section is any claim against the State relating to any property or emoluments appertaining to the office of any hereditary officer or servant These provisions also negative the claim of the appellant We proceed now to consider certain decisions on which learned counsel for the appellant has sought to place reliance We may notice here one comment made by him He has submitted that the High Court has relied on the decision of the Privy Council in Venkata Jagannadha vs Veerabadrayya 1 where the question was whether the karnam service lands enfranchised to a karnam a village accountant in Madras State were subject to any claim of partition by other members of the family and his comment is that the patelki inam lands in Berar stand on a footing different from karnam service lands in Madras and there are decisions in which it has been held that co sharers have a right to a share in service grants in Berar The first decision to which oar attention has 1 1921 LR 48 IA 244 726 been drawn is Krishnarao vs Nilkantha and Others 2 That was a case of a jagir and it was held that it came under the third class and nothing regarding ordinary rule is that if persons are entitled beneficially to shares in an estate they may have a partition It was further held that property consisting of an ordinary inam village was liable to partition at the suit of a co sharer except when it was held on a saranjam or other impartible tenure or where the terms of the grant impose a condition upon its enjoyment We do not think that this decision establishes what the appellant is seeking to establish in this case that is that be has a share in the emoluments of the patel s office The next decision is that of the Privy Council in Mir Subhan Ali vs Imami Begum 3 all that was laid down there was that the devolution and incidents of an inam estate in Berar were regulated by the Inam Rules 1859 but only in matters not mentioned in the sanad or certificate or other document evidencing the special terms of the grant in the particular case The fundamental question at issue there was one of construction namely whether the beneficial interest in the Inam granted to a common ancestor of the parties and continued by the British Government in 1866 passed under the terms of the grant then made to all heirs of the grantees according to Shia Mahomedan Law or whether the interest devolved on the male descendants only It was not a service grant and no question of a share in the emoluments of the patel s office arose there In Lakhamgouda Basavaprabhu Sardesai vs Baswantrao and Others 4 the Privy Council pointed out the distinction between the grant of an office to be remunerated by the use of land and the grant of land burdened with service it said that in the former case the land would be prima facie resumable but not so in the latter case unless the terms of the grant or the circumstances in which it was made established that it was resumable 1 AIR 1922 Nag 2 3 AIR 1931 PC 157 727 In the case of Jaiwantrao and Another vs Sahebrao 1 the inam certificate issued to the head of the senior branch of a family of Deshmukh watandars stated that the village was granted for personal maintenance to the claimant his descendants and co sharers Accordingly it was held that a co sharer was entitled to possession of his share appearing from the inam statement In Raje Shrinivasrao vs Raje Vinayakrao2 there was grant of two villages to the great grandfather of the appellant and the respondent who were brothers and his lineal heirs or his successors The question was whether primogeniture was to be the order of descent or the estate was impartible It was held that the ordinary principles of Hindu Law were applicable and the earlier decision in Mir Subhan Ali vs Imami Begam 3 was referred to Here again the grant was not a service grant and no question of a claim of a share in the emoluments of office fell even for consideration not to speak of decision We consider it unnecessary to multiply decisions It is enough to state that no decision has been brought to our notice in which it has been held that a member of the patel s family is entitled as of right to a share in the emoluments of the patel s office and that Government has no right to resume patelki inam lands and regrant the same to the officiator It remains now to consider the special claim with regard to survey numbers 2IA and 9lA The case of the appellant was that these two plots ceased to be inam lands when they fell in the resumed portion of the Jagir they were sold by Bannobi Begum and Mahmudi Begum the jagirdars and the appellant and his brother Amrit brought suits and obtained decrees in respect of these two plots and in execution of the decrees they obtained possession The learned trial Judge rightly pointed out that the decrees aforesaid related to property other than plots 2IA and 9lA Moreover it is not disputed that the entire patelki inam lands in possession of Amritrao patel including the plots which were made khalsa in 1904 05 were 1 2 ILR 3 728 excluded from resumption and Amrit s patelki inam lands were treated as a homogenous unit by the orders passed on August 28 1922 The two plots 21 1 A and 91Atherefore stand on the same footing as other patelki inam lands of Amritrao The claim of title by adverse possession can be disposed of in a few words Once it is held that the lands were given by way of emoluments for the patel s office no question of title by adverse possession arises against Government even though the lands were shown as excluded from the jagir of Nawabag in 1866 Amrit worked as patel till he died in 1920 and even though the appellant got possession by partition in 1923 it was open to Government to resume the lands in 1941 and regrant the same to respondent No 1 The appellant can only succeed if he establishes that he had a right to a share in the patelki inam lands and Government had no right to resume the same This the appellant has failed to establish For the reasons given we hold that the appeal is without merit and must be dismissed with costs Appeal dismissed

The expression the total sum directed to be paid used in section 171 a of the properly construed does not mean the total sum directed to be paid to each individual applicant Consequently an employer against whom a direction for payment is made under section 153 of the Act has a right of appeal under section 171 a not only when a single applicant is awarded a sum exceeding Rs 300 but also when an award of a like amount is made on a single application made under section 162 of the Act on behalf of several employees belonging to the same unpaid group or on several applications consolidated into one under section 163 thereof Section 171 a does not contemplate that before the right to appeal can accrue to the employer in the latter case each individual applicant must be awarded Rs 300 or more Since the language of the statute is clear and unambiguous no consideration of any possible hypothetical anomaly can be allowed to affect its plain meaning Laxman Pandu and Others vs Chief Mechanical Engineer West ern Railway B B and C I Railway Lower Parel Bombay overruled Union of India Owning the South Indian Railway by General Manager vs section P Nataraja Sastrigal Ors AIK A C Arumugam Ors vs Manager Jawahar Mills Ltd Salem junction AIR 1956 Mad 79 Promod Ranjan Sarkar vs R N Mullick AIR 1959 Cal 318 and Cachar Cha Sramik Union vs Manager Martycherra Tea Estate Anr AIR 1959 Assam 13 approved

minal Appeal No 204 of 1959 Appeal by special leave from the judgment and order dated June 23 1959 of the Calcutta High Court in Criminal Revision No 640 of 1958 section K Acharya and Janardan Sharma for the appellants section M Bose Advocate General for the State of West Bengal K C Mukherjee and P K Bose for the respondent December 18 The judgment of Sinha C J Gajendragadkar and Shah JJ was delivered by Gajendragadkar J The judgment of Sarkar and Subba Rao JJ was delivered by Sarkar J GAJENDRAGADKAR J This appeal by special leave challenges the vires of section 2b and the proviso to section 41 of the West Bengal Tribunals of Criminal Jurisdiction Act 1952 WB Act XIV of 1952 hereinafter called the Act A complaint was filed against Kangsari Haldar and Jogendra Nath Guria hereinafter called the appellants in which it was alleged that the appellants along with some others had committed offences under section 120B read with sections 302 and 436 of the Indian Penal Code The case against them was that in 1947 a tebhaga movement had been launched in Kakdwip area by the communist party and that later on the Bhagehasis were persuaded to claim the entire and not only 23 of the produce in pursuance of the said movement It was further alleged that the leaders of said movement including the appellants preached murder and arson amongst the cultivators and that such preaching and propaganda were followed by arson and murders on a large scale It was on these allegations that a charge sheet was submitted against the appellants and the case 649 against them taken up for trial before the Third Tribunal at Alipore constituted under the Act Ninetynine witnesses were examined by the prosecution in support of its case and the tribunal framed charges against the appellants under the three sections already mentioned by its order dated May 16 1958 The offences in question are alleged to have been committed during the period beginning from January 1 1948 and ending on March 31 1950 within Kakdwip and Sagaour police stations By their Criminal Revision Application No 640 of 1958 the appellants challenged the validity of the proceedings before the tribunal and applied for quashing the said proceedings and the charges framed against them under section 439 of the Code of Criminal Procedure as well as article 227 of the Constitution in the Calcutta High Court Their application was first heard by Mitter and Bhattacharya JJ but since there was a difference of opinion between the two learned judges the case was referred to Sen J Bhattacharya J had taken the view that the impugned provisions of the Act were ultra vires and so he was inclined to allow the revision application and quash the proceedings taken against the appellants on the other hand Mitter J had taken a contrary view and Sen J to whom the matter was referred agreed with the view taken by Mitter J In the result it was held that the impugned provisions of the Act were intra vires and so the rule issued on the appellants revision application was discharged and the application itself was dismissed The appellants then applied to the said High Court for a certificate either under article 132 or under article 134 of the Constitution but their applications were dismissed Thereupon they moved for and obtained special leave from this Court That is how this appeal has come before this Court and the only point which it raises for our decision is about the vires of the two impugned provisions of the Act On behalf of the appellants Mr Acharya has contended that the genesis of the Act should be borne in mind in dealing with the vires of the impuged provisions and in support of this argument he has strongly 83 650 relied on the sequence of events which led to the passing of the Act It appears that the West Bengal special Courts Act X of 1950 was passed by the West Bengal Legislature and came into force on March 15 1950 The vires of section 51 of the said Act were impeached by Anwar Ali Sarkar and others who were being tried under the provisions of the said Act On August 28 1951 the Calcutta High Court partially upheld the plea and struck down a part of section 51 The said deci sion was challenged by the State of West Bengal before this Court in The State of West Bengal vs Anwar Ali Sarkar 1 but the appeal preferred by the State was dismissed and by a majority decision of this Court not only a part of section 51 but the whole of it was declared to be ultra vires as being violative of article 14 of the Constitution This decision was pronounced on January 11 1952 Soon thereafter an Ordinance was promulgated No 1 of 1952 by the West Bengal Government on March 24 1952 and in due course this Ordinance was replaced by the Act which came into force on July 30 1952 Section 12 of the Act purports to repeal the earlier Act of 1950 in conformity with the decision of this Court in Anwar Ali Sarkar s case 1 The argument is that by passing the Act the West Bengal Government has attempted to achieve the same result which it intended to achieve by section 51 of the earlier Act and so according to the appellants in substance the decision of this Court in Anwar Ali Sarkar s case1 should govern the decision of the present appeal In any case it is urged that the sequence of events which supply the background to the present Act should carefully be borne in mind in dealing with the merits of the points raised by the appellants The challenge to the vires of the impugned provisions is based on the ground that they violate the fundamental right guaranteed by article 14 of the Constitution The scope and effect of the provisions of article 14 have been considered by this Court on several occasions and the matter has been clarified beyond all doubt The equality before law which is guaranteed by article 14 no doubt prohibits class legislation 1 651 but it does not prohibit the Legislature from legislating on the basis of a reasonable classification If the classification is reasonable and is founded on intelligible differentia and the said differentia have a rational relation to the object sought to be achieved by the statute based on such reasonable classification the validity of the statute cannot be successfully challenged under article 14 These propositions have been repeated so many times during the past few years that they now sound almost platitudinous Thus the enunciation of the principles which flow from the fundamental rights enshrined in article 14 now presents no difficulty it is however in the application of the said principles that difficulties often arise In applying the said principles to the different sets of facts presented by different cases emphasis may shift and the approach may not always be identical but it is inevitable that the final decision about the vires of any impugned provision must depend upon the decision which the court reaches having regard to the facts and circumstances of each case the general scheme of the impugned Act and the nature and effect of the provisions the vires of which are under examination Let us therefore first examine the relevant scheme of the Act and ascertain the effect of the provisions under challenge The Act was passed because the Legislature thought it expedient in the interest of the security of the State the maintenance of public peace and tranquillity and the due safeguarding of the industry and business to provide for the speedy trial of the offences specified in the schedule Section 2b defines a disturbed area as meaning an area in which in the opinion of the State Government i there was or ii there is any extensive disturbance of the public peace and tranquillity and in respect of which area the State Government has issued a notification declaring such area to be a disturbed area The section then adds that in cases falling under cl i the notification shall have effect during such period as may be specified therein and in cases falling under cl ii the notification shall have effect from such date as may be specified in the 652 notification until the notification is revoked It would thus be noticed that the disturbed area can be of two categories it can be an area where extensive disturbance as described had taken place but at the time of the notification the disturbance may have ceased and an area where the disturbance is taking place at the time of the notification In respect of the first category of disturbed areas the notification has to specify the period covered by the previous disturbance and it is the specified offences which had taken place during the said period that fall within the mischief of the Act In the case of the notification issued in respect of areas where disturbances are taking place the notification has effect from such date as it may specify and it will continue to be in operation until it is revoked Section 2d defines a scheduled offence as any offence specified in the schedule and section 2e defines a tribunal as meaning a tribunal of Criminal Jurisdiction constituted under sub section 1 of section 3 The scheduled offences are specified in four items Item 1 deals with offences against the State prescribed by ch 6 of the Indian Penal Code Item 2 deals with some of the offences against human body and property covered by ch 16 and ch 17 of the Code Item 3 refers to some of the said offences if they are committed in the course of a raid on or a riot in a factory or a mill or a workshop or a bank or in relation to transportation of property to or from a factory mill workshop or bank and the last item covers cases of conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in items 1 to 3 The scheme of the Act is thus to appoint special tribunals to try the scheduled offences which have taken place in disturbed areas as defined in section 2b That is the effect of section 4 of the Act The proviso to section 41 enables the tribunal when it is trying any case to try in its discretion any offence other than a scheduled offence with which the accused may under the Code be charged at the same trial In other words the trial of an accused person in respect of the scheduled offences may include any other offence which is not included in the schedule and which would be triable under the provisions of the 653 Code As we have already indicated the present appeal challenges the vires of section 2b and the proviso to section 41 It cannot be disputed that the procedure prescribed for the trial before the tribunal under the Act differs in some material particulars from the procedure prescribed by the Code and the said difference can be treated as amounting to discrimination which is pre judicial to the accused under the Act no commitment proceedings have to be taken and the benefit of jury trial is denied The provision made by the first proviso to section 5 in respect of adjournment of the trial is also stricter and more stringent Similarly the right of an accused person to claim a de novo trial where a judge presiding over a tribunal ceases to be available before the completion of the trial is also materially affected by the provisions of section 6 Section 10 makes applicable the provisions of the Code or of any other law for the time being in force which may be applicable to the trial of criminal cases in so far as they are not incon sistent with the provisions of the Act Thus it may be conceded that the appellants are entitled to complain that on the whole the procedure prescribed for the trial of scheduled offences under the Act amounts to discrimination The question is whether such discrimination violates the provisions of article 14 This question necessarily leads us to inquire whether the discriminatory provisions of the Act are based on any rational classification and whether the differentiation of the offenders brought within the mischief of the Act has a rational nexus with the policy of the Act and the object which it intends to achieve The preamble shows that the Legislature was dealing with the problem raised by disturbances which had thrown a challenge to the security of the State and raised a grave issue about the maintenance of public peace and tranquillity and the safeguarding of industry and business It therefore decided to meet the situation by providing for speedy trial of the scheduled offences Thus the object of the Act and the principles underlying it are not in doubt It is true that speedy trial of all criminal offences is desirable but there would be no difficulty in appreciating the anxiety of the 654 Legislature to provide for a special procedure for trying the scheduled offences so as to avoid all possible delay which may be involved if the normal procedure of the Code was adopted If the disturbance facing the areas in the State had to be controlled and the mischief apprehended had to be Checked and rooted out a very speedy trial of the offences committed was obviously indicated The classification of offenders who are reached by the Act is obviously reasonable The offences specified in the four items in the schedule are clearly of such a character as led to the disturbance and it is these offences which were intended to be speedily punished in order to put an end to the threat to the security of the State and the maintenance of public peace and tranquillity It would be idle to contend that if the offences of the type mentioned in the schedule were committed and the Legislature thought that they led to the disruption of public peace and tranquillity and caused jeopardy to the security of the State they could not be dealt with as a class by themselves Other offences committed by individuals under the same categories of offences specified by the Code could be rationally excluded from the classification adopted by the Act because they did not have the tendency to create the problem which the Act intended to meet We are therefore satisfied that the classification made by the Act is rational and the differentiation on which the offenders included within the Act are treated as a class as distinguished from other offenders has a rational nexus or relation with the object of the Act and the policy underlying it Therefore it would be difficult to accede to the argument that the Act violates article 14 of the Constitution It is however urged that section 2bi is not intra vires because the classification on which it is based violates article 14 This contention has taken a two fold form It is urged that the notification which is authorised to be issued under section 2bi necessarily deals with an area which has ceased to be disturbed at the time when it is issued and it is inevitable that when such a notification is issued some of the offences which would have 655 been tried under the Act as a result of the notification may have already been tried under the ordinary Code and it is only such cases as are not disposed of on the date of the notification which would fall within the mischief of the Act and that constitutes an irrational or arbitrary classification It is also urged that when the area covered by such a notification has ceased to be disturbed there is no rational or valid justification for applying the Act to the offences committed in such an area when in the other continuously undisturbed areas similar offences would be tried under the normal provisions of the Code In fact it is these two aspects of the question which have been strongly pressed before us by Mr Acharya in the present appeal Before dealing with these two arguments it would be relevant to recall that this Court has accepted the general principle that if any state of facts can reasonably be conceived to sustain a classification the existence of that state of facts must be assumed Vide Chiranjitlal Chaudhuri vs The Union of India Ors 1 and Kedar Nath Bajoria vs The State of West Bengal 2 It is quite true that when a notification is issued under section 2bi specifying the period during which the area in question was disturbed some offences though falling under the schedule might have been tried under the Code while some others which may be pending at the date of the notification would be tried under the Act But does that introduce any vice in the classification If the area was disturbed and the notification specifying the period of such disturbance is otherwise justified in the sense that the speedy trial of the seheduled offences committed during the specified period can be validly directed then the fact that some offences had already been tried before the notification cannot in our opinion introduce any infirmity in the statutory provision itself It must be remembered that the classification on which the impugned notification rests is between the scheduled offences committed in an area which is declared to be a disturbed area and similar offences committed elsewhere in the State and so the fact that some of the scheduled offences 1 at p 877 2 at P 39 656 escaped the operation of the notification because they had been already tried cannot affect its legality or validity Such an adventitious or accidental result cannot sustain the attack against the classification which is otherwise rational reasonable and valid In fact it would not be easy or always possible for the Legislature to prevent such an accidental escape of some cases from the provisions of a special statute for the reason that they had already been decided If the statute had permitted discrimination between cases under the scheduled offences which still remained to be tried that would have been another matter In our opinion it would be unreasonable to requisition the assistance of cases which had been disposed of and have become a matter of history to challenge the classification in question The second contention is also without substance because it ignores the material difference between the character of the offences committed during the specified period in the disturbed area and offences committed in continuously undisturbed areas The offences committed in areas subsequently declared to be disturbed led to and were the cause of the extensive disturbance In consequence of such disturbance investigation into such offences is rendered difficult it is not easy in such disturbed conditions to collect and marshall evidence because witnesses are apt to be terrorised and though the area has ceased to be disturbed absence of disturbance may be temporary and unless the offenders are brought to book speedily the temporary peace may turn out to be the lull before another storm That is why even in respect of areas which have ceased to be disturbed offences committed when the area was disturbed during the period specified in the notification are required to be tried under the Act Such offences cannot in our opinion be reasonably compared with offences committed under the same sections of the Code in continuously undisturbed areas In their essential features the two offences form two distinct and different categories and the contention that the classification of the offences made in such a case is irrational must 657 therefore be rejected The argument that some limitation of time should have been prescribed within which the notification should be issued declaring such areas to be disturbed ignores the fact that prescription of such limitation may in some cases defeat the purpose of the Act itself If the offenders abscond or go underground as in the present case appellant 1 did how can any period of limitation be prescribed beyond which the power to issue notification cannot be exercised In issuing such notification several relevant factors pertaining to the local situation in the area have to be taken into account and so failure to prescribe any limitation cannot introduce any infirmity in the provision It is conceivable that the notification issued under section 2bi may be colourable or mala fide but in such a case it is the validity of the notification which can be successfully challenged not the vires of the statute under which it is issued The colourable or mala fide exercise of the power in issuing a notification would undoubtedly affect the validity of the notification itself but the possibility of such abuse of power cannot reasonably affect the vires of the statute itself Mr Acharya no doubt suggested that the object of the impugned notification was to bring only the case of the appellants under the mischief of the Act but he frankly conceded that he had not made such a specific plea in his petition and that though it would be possible for him to urge that a large majority of the scheduled offences committed during the specified period had already been tried under the Code it would not be possible for him to sustain the plea on the material available on the record that the notification has been issued solely with a view to bring the case of the appellants alone under the mischief of the Act That is why this aspect of the matter does not fall to be considered in the present appeal The next argument is that the proviso to section 41 is ultra vires We do not think that here is any substance in this argument What the proviso does is to enable the tribunal to try any offence other than the scheduled offence with which the accused may be 84 658 charged and which would be ordinarily triable under the provisions of the Code But does this amount to an infringement of article 14 at all In our opinion the answer to this question must be in the negative It is significant that the proviso leaves it to the discretion of the tribunal whether or not any other offence should be tried under the Act along with the scheduled offence charged against the accused in a given case Besides there can be no doubt that the offences other than the scheduled offences which may be included in a trial under the Act would beminor or allied offences the proof of which would follow from the facts adduced in support of the major offences That in fact is the position even under the provisions of the Code If the trial of the major scheduled offence under the Act is justified and valid the impugned proviso does nothing more than enable the tribunal to decide whether the accused is guilty of any minor or allied offence In our opinion therefore the challenge to the proviso in question cannot succeed It now remains to consider the decisions to which our attention was invited In the case of Anwar Ali Sarkar 1 where section 51 of the Bengal Act X of 1950 was impeached the majority decision was that the said section was wholly invalid The preamble to the Act had merely stated that it was expedient to provide for the speedy trial of certain offences and section 51 had empowered a special court to try such offences or classes of offences or cases or classes of cages as the State Government may by general or special order in writing direct According to the majority decision the preamble to the Act was vague and gave no indication about them principles underlying it or the object which it intended to achieve and it was also held that s 51 vested an unrestricted discretion in the State Government to direct any cases or classes of cases to be tried by the special court It was observed that the necessity of a speedier trial mentioned in the preamble was too vague uncertain and elusive a criterion to form a rational basis for the discriminations made and that it was unreasonable to have left to the absolute and unfettered discretion of the 1 659 executive government with nothing in the law to guide or to control its action to decide which cases or classes of cases should be tried under the Act There were however two dissents Patanjali Sastri CJ held that section 51 was wholly valid where Das J as he then was agreed with the conclusion of the High Court that section 51 was bad only in so far as it empowered the State Government to direct cases to be tried by a special court it may be added that though Bose J agreed with the conclusion of the majority he was not satisfied that the tests laid down in deciding the validity of the classification could afford infalliable guide because he thought that the problem posed in such cases is not solved by substituting one generalisation for another It would thus be seen that the majority decision in that case was based on two principal considerations that having regard to the bald statement made in the preamble about the need of speedier trials it was difficult to sustain the classification made by section 51 and that the discretion left to the executive was unfettered and for its exercise no guidance was given by the statute It is difficult to accept the suggestion of Mr Acharya that the impugned provisions in the Act with which we are concerned are comparable to section 51 in that case The next decision to which reference must be made is Kathi Raning Rawat vs The State of Saurashtra 1 The majority decision in that case upheld the validity of sections 9 10 and 1 1 of the Saurashtra State Public Safety Third Amendment Ordinance 1949 66 of 1949 and the notification issued under it Patanjali Sastri CJ and three other learned judges of this Court took the view that the preamble to the Act gave a clear indication about the policy underlying the Act and the object which it intended to achieve that the classification on which the impugned provisions were based was a rational classification and that the differentia on which the classification was made had a rational nexus with the object and policy of the Act Mahajan Chandrasekhara Ayyar and Bose JJ however dissented According to them the notification 1 660 and the impugned provisions had violated article 14 It is significant that in up holding the validity of the impugned provisions and the notifications the tests applied were the same as laid down in Anwar Ali Sarkar s case 1 The third decision pronounced by this Court in the same year is Lachmandas Kewalram Ahuja Anr vs The State of Bombay 2 Section 12 of the Bombay Public Safety Measures Act 1947 was struck down by the majority decision in that case as it contravened article 14 and was void under article 13 on the principles laid down in the two earlier decisions to which we have just referred Patanjali Sastri C J struck a note of dissent He adhered to the view which he had expressed in Anwar Ali Sarkar s case 1 and held that the impugned provision was valid The decision in the case of Ahuja 2 proceeded on the basis that the discrimination which may have been permissible before January 26 1950 could not be sustained after the said date because it violated article 14 of the Constitution Having regard to the objects which the act intended to achieve and the principles underlying it it was held that the said object and principles applied equally to both categories of cases those which were referred to the special judge and those which were not so referred and so the discrimination made between the two categories of cases which could not be rationally put under two different classes was violative of article 14 Thus the application of the same tests this time resulted in striking down the impugned provision and the notification In 1953 a similar problem was posed before this Court for its decision This time it was section 41 of the West Bengal Criminal Law Amendment Special Courts Act 1949 which was challenged in Kedar Nath Bajoria s case 3 This Act had been passed to provide for the more speedy and more effective punishment of certain offences because the Legislature thought that it was expedient to provide for the more speedy trial and more effective punishment of certain offences which were set out in the schedule annexed 1 2 3 661 to the Act Section 41 authorised the Provincial Government to allot cases for trial to a special judge by notification as well as transfer cases from one special judge to another or to withdraw any case from the jurisdiction of the special judge or make such modifications in the description of a case as may be considered necessary Pronouncing the majority judgment in that case Patanjali Sastri C J elaborately considered the earlier decisions of this Court to which we have already referred applied the tests laid down therein and held that section 4 of the Act was valid and that the special court had jurisdiction to try and convict the appellants Bose J however did not agree and recorded his dissent with deepest regret In dealing with the merits of the controversyraised before the Court Patanjali Sastri C J referredto the fact that according to the dissenting view thedecision of the majority in the case of Kathi Baning Rawat vs The State of Saurashtra 1 marked a retreat from the position taken up by the majority in the earlier case of Anwar Ali Sarkar He however added that the Saurashtra case 1 would seem to lay down the principle that if the impugned legislation indicates the policy which inspired it and the object which it seeks to attain the mere fact that the legislation does not itself make a complete and precise classification of the persons or things to which it is to be applied but leaves the selective application of the law to be made by the executive authority in accordance with the standard indicated or the underlying policy and object disclosed is not a sufficient ground for condemning it as arbitrary and therefore obnoxious to article 14 There is is one more decision to which reference may be made In Gopi Chand vs Delhi Administration 3 this Court has upheld the validity of section 361 of the East Punjab Public Safety Act 5 of 1949 The provisions of this section authorised the State Government to apply the prescribed summons procedure for the trial of the specified offences in dangerously 1 2 3 662 disturbed areas The notification issued by the State Government under authority conferred on it by the impugned Act was challenged as offending article 14 but this challenge was repelled and the statutory provision and the notification were held to be valid The result of these decisions appears to be this In considering the validity of the impugned statute on the ground that it violates article 14 it would first be necessary to ascertain the policy underlying the statute and the object intended to be achieved by it In this process the preamble to the Act and its material provisions can and must be considered Having thus ascertained the policy and the object of the Act the court should apply the dual test in examining its validity Is the classification rational and based on intelligible differentia and has the basis of differentiation any rational nexus with its avowed policy and object If both these tests are satisfied the statute must be held to be valid and in such a case the consideration as to whether the same result could not have been better achieved by adopting a different classification would be foreign to the scope of the judicial enquiry If either of the two tests is not satisfied the statute must be struck down as violative of article 14 Applying this test it seems to us that the impugned provisions contained in section 2b and the proviso to section 41 cannot be said to contravene article 14 As we have indicated earlier if in issuing the notification authorised by section 2b the State Government acts mala fide or exercises its power in a colourable way that can always be effectively challenged but in the absence of any such plea and without adequate material in that behalf this aspect of the matter does not fall to be considered in the present appeal The result is the order passed by the High Court is confirmed and the appeal dismissed Before we part with this appeal however we would like to add that since the offences are alleged to have been committed more than ten years ago it is desirable that the case against the appellants should now be tried and disposed of as expeditiously as possible 663 SARKAR The question that arises in this appeal whether a certain provision of the Tribunal Criminal Jurisdiction Act 1952 W B Act XIV of 1952 is void as it takes away the right conferred by article 14 of the Constitution In my view it is The Act came into force on July 30 1952 The object of the Act is set out in the preamble which so far as is relevant in this case reads Whereas it is expedient in the interests of the security of the State the maintenance of public peace and tranquillity to provide for the speedy trial of the offences specified in the Schedule It is hereby enacted The provisions of the Act which have to be considered in this case are set out below section 2 Definitions In this Act unless there is anything repugnant in the subject or context a b disturbed area means an area in which in the opinion of the State Government i there was or ii there is any extensive disturbance of the public peace and tranquillity and in respect of which area the State Government has issued a notification declaring such area to be a disturbed area In cases falling under clause i the notification shall have effect during such period as may be specified therein and in cases falling under clause ii the notification shall have effect from such date as may be specified in the notification until the notification is revoked c d Scheduled offence means any offence specified in the Schedule e Tribunal means a Tribunal of Criminal Jurisdiction constituted under sub section 1 of section 3 section 4 i Scheduled offences shall be triable by the Tribunals only 664 SCHEDULE 1 2 An offence punishable under section 302 section 304 section 307 section 326 section 363 section 364 section 365 section 366 section 376 section 395 section 396 section 397 or section 436 of the Indian Penal Code if committed in a disturbed area 3 4 Any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in items 1 to 3 The Act provides by some of the sections which need not be set out a special procedure for trial under it Thus the trial is to be without a jury even in case which are triable by a jury Again the Tribunal is to follow the procedure laid down for the trial of warrant cases by a Magistrate instituted otherwise than on a police report and the procedure for committal for trial is omitted Further a Judge presiding over a Tribunal may act on the evidence recorded by his predecessor The procedure provided by the Act is thus clearly less beneficent to an accused than the normal procedure under the Code of Criminal Procedure which would have to be adopted for his trial if the Act had not been passed The learned Advocate General of West Bengal appearing for the respondent the State of West Bengal did not contend to the contrary The Act therefore provides a disadvantageous and so a discriminatory procedure for the persons who come under its scope We turn now to the facts of this case On September 12 1952 the Government of West Bengal issued a notification under section 2b of the Act declaring the whole area within the jurisdiction of Kakdwip and Sagar police stations to be a disturbed area and specified the period from January 1 1948 to March 31 1950 to be the period during which the notification was to have effect The Special Public Prosecutor Kakdwip cases of the Government of West Bengal filed a complaint against the appellants and several other persons as a result of the proceedings taken by that Government in case 665 No 1 of Judicial Department Notification No 5916 dated October 24 1952 The date of the complaint does not appear from the record The case against the appellants and the other persons appears to be that between the dates mentioned in the Notification Of September 12 1952 they were among the leaders of the violent form of a movement called the Tebhaga movement in the Kakdwip area and they with the others led the movement to kill the landlords and jotdars and burn down their houses so that the bhagchasis that is the cultivators who cultivated the lands of the landlords and jotdars on the basis of getting a share of the crop produced might obtain full control over the lands they cultivated and the object of the movement included offering resistance to and killing the police if they intervened and burning down school houses where the police frequently camped On the aforesaid complaint on March 3 1958 proceedings were started against the appellants under the Act After examining 99 witnesses the learned Judge presiding over the Tribunal hearing the case framed a charge against them on May 16 1958 under section 120 B read with sections 302 and 436 of the Indian Penal Code These offences are included in items Nos 2 and 4 of the Schedule On May 26 1958 the appellants moved the High Court at Calcutta under article 227 of the Constitution and section 439 of the Code of Criminal Procedure for an order quashing the proceedings against them on certain grounds I propose to deal in this judgment with one of these grounds only It was said that s 2b of the Act in so far as it allowed the Government to declare an area in which there was dis turbance in the past to be a disturbed area offends article 14 of the Constitution as it then discriminates between persons who had committed the same offences in that area within the specified period but whose trials had been concluded before the notification and others similarly situated but whose trials had not been so concluded It was said that the former class of persons had the advantage of the normal procedure while 85 666 the latter in whom the appellants are included were to tried by a less advantageous procedure The application of the appellants was heard by a bench of the High Court consisting of Mitter and Bhattacharya JJ These learned Judges came to entertain different views on the question Mitter J thought that the Act had been given a retrospective operation by permitting the declaration of an area as a disturbed area for a past period but that the Act dealt only with procedure and procedural alterations were always retrospective Bhattacharya J seems to have been of the view that a retrospective operation even of a procedural statute is not permissible if such operation results in the statute offending article 14 that the principle of the retrospective operation of a procedural statute is not available to by pass the constitutional safeguard guaranteed by article 14 In view of this difference of opinion the matter was referred to a third learned Judge of the Court namely Sen J He was of the view that the retrospective operation of the Act by which he meant the application of the procedure laid down in it to cases in respect of offences committed before the Act the trial of which had not been concluded did not offend article 14 that there was no fundamental right to a particular procedure for trial and alterations in the procedural law were always retrospective unless the contrary was indicated He further observed The change in the procedure made by a statute in respect of offences falling within a prescribed reasonable classification affects all pending cases of that class and so long as all pending cases within the class are tried under the special procedure there is no discrimination In the result the appellant s application was refused They have now appealed to this Court It seems to me that the learned Judges of the High Court were unduly oppressed by considerations of the retrospective operation of the Act The question is not whether the Act is prospective or retrospective in its operation Nor is it the question whether the Act deals with procedures or substantive rights The only question is whether the Act operates in respect only of 667 a class of persons and if so whether the classification is justifiable Whether a law offends article 14 does not depend upon whether it is prospective or retrospective There is nothing in article 14 to indicate that a law operating retrospectively cannot offend it It is possible both for prospective and retrospective statutes to contravene the provisions of that article It is not necessary therefore to consider whether the Act is prospective or retrospective or whether it concerns procedure or substantive rights The general rule is that a law must apply to all persons But it is permissible within certain well recognised limits to validly legislate for a class of persons The test for a valid classification is well known It may be read from the judgment in the recent case of Sri Ram Krishna Dalmia vs Shri Justice section R Tendolkar 1 Das CJ said at p 298 In determining the validity or otherwise of such a statute the court has to examine whether such classification is or can be reasonably regarded as based upon some differentia which distinguishes such persons or things grouped together from those left out of the group and whether such differentia has a reasonable relation to the object sought to be achieved by the statute Where the court finds that the classification satisfies the tests the court will uphold the validity of the law Again at p 299 he observed A statute may not make any classification of the persons or things for the purpose of applying its provisions but may leave it to the discretion of the Government to select and classify persons or things to whom its provisions are to apply the court will strike down the statute if it does not lay down any principle or policy for guiding the exercise of the discretion by the Government in the matter of selection or classification In such a case the court will strike down both the law as well as the executive action taken under such law 1 668 The statute before us has made a classification in regard to offences It applies only to those offences which are mentioned in the Schedule I will assume that this classification satisfies the test and is good I wish to observe here that in this case I am considering the validity of the statute only in so far as it is concerned with an offence committed in a disturbed area Such an offence comes under items 2 and 4 of the Schedule which alone therefore I have set out Now the Act leaves it to the Government to decide which is a disturbed area and to make a classification on the basis of areas I will also assume that the Act is not invalid in so far as it leaves it to the Government to make this classification that it lays down a principle or policy namely extensive disturbance of public peace and tranquillity for guiding the Government in making this classification Now section 2b empowers the Government to declare an area to be a disturbed area where there was extensive disturbance of the public peace and tranquillity in the past The Government has however to mention in the notification making such a declaration the period during which it shall have effect in other words the notification has to specify the period in which in the area declared a disturbed area disturbance of the public peace and tranquillity had taken place The areaso declared a disturbed area becomes a disturbed area within the meaning of the Act for that period only In such a case only such of the offences mentioned in items Nos 2 and 4 of the Schedule as were committed in the specified area during the specified period come under the scope of the Act This is the kind of declaration of a disturbed area that we have in this case The effect of this kind of declaration is that it makes the Act applicable only to persons who have committed any of the specified offences in the area and during the period indicated As will presently be seen it does not apply to all such persons This being a case where there had been disturbances in the area in the past the period mentioned in the declaration must be a period in the past That is what happened in the present case The declaration was made on 669 September 12 1952 and the period specified was from January 1 1948 to March 31 1950 It is possible in such a case that many of the persons who had committed the offences within the past period specified in the declaration might have already been tried and their trials concluded before the declaration was made They would in such circumstances have been tried according to the normal procedure provided by the Code of Criminal Procedure To them the Act does not apply Other persons like the appellants who committed the same offences in the same period and in the same area but whose trials had not been concluded before the declaration was made have to be tried under the disadvantageous procedure prescribed by the Act The effect of the Act therefore is to group into one class persons committing the specified offences in the specified area and in the specified period whose trials had not been concluded before the making of the declaration It is only to them that the Act applies This is where the difficulty arises There does not seem to be any intelligible differentia by which such persons can be differentiated from others who committed the same offences in the same area and during the same period but whose trials had been concluded before the making of the declaration The object of the Act as earlier stated is to secure speedy trials in the interests of the security of the State and the maintenance of the public peace and tranquillity in view of the extensive disturbance of the public peace and tranquillity in an area It would be necessary to carry out this object that both the classes of persons namely those whose trials had been concluded as also those whose trials had not been concluded should be treated according to the same law The only distinction between the two classes is that in one case the trials had been concluded while in the other they had not been Now that is not a differentia if it may be called so which has any reasonable relation to the object of the Act lndeed in order to secure that object it is necessary to place both the classes of persons in the same situation By permitting a declaration classifying offences committed in the past the Act makes a classification which cannot stand the 670 well known test which I have read from Ram Krishna Dalmia s case 1 It cannot be said that the object of the Act is only to provide speedy trial and that therefore as there is of no question of speedy trial in the cases where the trial had already been concluded there is an intelligible differentia between such cases and those where the trial had not been concluded It is quite plain that the object of the Act is not simply to provide a speedy trial Indeed all offences require speedy trial The object of the Act is expressly to provide speedy trial of certain offences committed in a specified area and during a specified period because it is expedient in the interests of the security of the State the maintenance of public peace and tranquillity to do so The classification by areas is based on disturbance in an area and the necessily of restoring peace there Such being the object a distinction made between the cases were the trials had been concluded and the cases where the trials had not been concluded is not a distinction which has any rational relation to that object The learned Advocate General for the State of West Bengal contended that this case is covered by the decision of this court in Gopi Chand vs Delhi Administration 2 There no such difficulty as arises in this case had arisen I therefore do not think that that case is of any assistance In my view section 2b of the Act in so far as it permits an area which was a disturbed area in the past to be declared a disturbed area for the purposes of the Act offends article 14 of the Constitution and is therefore unconstitutional and void The declaration in the present case was made under that portion of section 2b and it cannot be sustained That portion of the Act and the Notification of September 12 1952 must therefore be held to be void In the result I would allow the appeal ORDER OF COURT In view of the opinion of the majority the order passed by the High Court is confirmed and the appeal is dismissed 1 2 AIR 1959 SC P 609

In ascertaining the surplus available for the payment of bonus according to the Full Bench formula the Industrial Court allowed the statutory depreciation but did not give any credit for the rehabilitation amount claimed The Industrial Court estimated the amount required for rehabilitation at Rs 60 lakhs out of this amount it deducted Rs 51 lakhs representing the reserves and the balance of Rs 9 lakhs spread over a period Of 15 years gave the figure of Rs 6o000 as the amount that should be set apart for the year in question for rehabilitation This amount being less than the statutory depreciation the Industrial Court held that the appellant was not entitled to any deduction on account of rehabilitation as a prior charge The appellant contended that the balance sheet disclosed that the entire reserves had been used as working capital and consequently the said reserves should not be excluded from the amount claimed towards rehabilitation Held that the appellant had failed to prove that the reserves had in fact been used as working capital and as such the amount was rightly deducted by the Industrial Court from the amount fixed for rehabilitation The Associated Cement Companies Ltd vs Its Workmen referred to In view of the importance of the item of rehabilitation in the calculation of the available surplus it was necessary for tribunals to weigh with great care the evidence of both parties to ascertain every sub item that went into or was subtracted from the item of rehabilitation If parties agreed agreed figures could be accepted If they agreed to a decision on affidavits that course could be adopted But in the absence of agreement the procedure prescribed by 0 XIX Code of Civil Procedure had to be followed The accounts the balance sheet and profit and loss accounts were prepared by the management and the labour had no hand in it When so much depended on this item it was necessary that the Industrial Court insisted upon a clear proof of the item of rehabilitation and also gave a real and adequate opportunity to labour to canvass the correctness of the particulars furnished by the employers Indian Hume Pipe Company Ltd vs Their Workmen 196o 2 SCR 32 Tata Oil Mills Company Ltd vs Its Workmen and Anil Starch Products Ltd vs Ahmedabad Chemical Workers Union CA No 684 Of I957 not reported referred to 842

Appeal No 428 of 1959 Appeal from the judgment and order dated February 25 1959 of the Punjab High Court Circuit Bench at Delhi in Letters Patent Appeal No 47 D of 1955 arising out of the judgment and order dated November 28 1955 of the said High Court in Writ Petition No 306 D of 1954 N C Chatterjee J B Dadachanji section N Andley Rameshwar Nath and P L Vohra for the appellant C K Daphtary Solicitor General of India R Gapapathy Iyer R H Dhebar and T M Sen for respondents Nos 1 2 G section Pathak section section Shukla and Mrs E Udayaratnam for respondent No 3 1960 January 19 The Judgment of the Court was delivered by WANCHOO J This appeal upon a certificate granted by the Punjab High Court raises the question whether an order of the Central Government under r 54 of the Mineral Concession Rules 1949 hereinafter called the Rules framed under section 6 of the Mines and Minerals Regulation and Development Act No 53 of 1941 hereinafter called the Act is quasi judicial or administrative The brief facts necessary for this purpose are these The appellant was granted a mining lease by the then Ruler of Gangpur State on December 30 1947 shortly before the merger of that State with the State of Orissa on January 1 1948 This lease was annulled on June 29 1949 Thereafter the appellant was granted certificates of approval in respect of prospecting licences and mining leases Eventually the appellant applied on December 19 1949 for mining leases for manganese in respect of five areas in the district of Sundergarh Orissa He was asked on July 4 1950 to submit a separate 777 application for each area which he did on July 27 1950 Some defects were pointed out in these applications and therefore the appellant submitted fresh applications on September 6 1950 after removing the defects In the meantime the third respondent also made applications for mining leases for manganese for the same area on July 10 1950 These applications were not accompanied by the deposit required under r 29 of the Rules Consequently the third respondent was asked on July 24 1950 to deposit a sum of Rs 500 which it did on August 3 1950 It was then found that the third respondent s applications were defective It was therefore asked on September 5 1950 to send a separate application in the prescribed form for each block and thereupon it submitted fresh applications on September 6 1950 Eventually on December 22 1952 the State of Orissa granted the mining leases of the five areas to the appellant taking into account r 32 of the Rules which prescribed priority It was held that the appellant s applications were prior and therefore the leases were granted to him Thereafter on April 21 1953 possession of the areas leased was delivered to the appellant It seems however that the third respondent had applied for review to the Central Government under r 52 of the Rules This review application was allowed by the Central Government on January 28 1954 and the Government of Orissa was directed to grant a mining lease to the third respondent with respect to two out of the five areas The appellant s complaint is that he came to know in February 1954 that the third respondent had applied to the Central Government under r 52 for review He thereupon addressed a letter to the Central Government praying that he might be given a hearing before any order was passed on the review application He was however informed on July 5 1955 by the Government of Orissa of the order passed by the Central Government on January 28 1954 by which the lease granted to him by the State of Orissa with respect to two areas was cancelled Consequently he made an application under article 226 of the 778 Constitution to the Punjab High Court praying for quashing the order of January 28 1954 on the ground that it was a quasi judicial order and the rules of natural justice had not been followed inasmuch as he had not been given a hearing before the review application was allowed by the Central Government thus affecting his rights to the lease granted by the State of Orissa The writ petition was heard by a learned Single Judge of the High Court and it was held that the order was not a quasi judicial order but merely an administrative one and that there being no lis the appellant was not entitled to a hearing In the result the writ petition failed The appellant went up in Letters Patent Appeal to a Division Bench of the High Court which upheld the order of the learned Single Judge The appellant then applied for a certificate to permit him to appeal to this Court which was granted and that is how the matter has come up before us Shri N C Chatterji appearing on behalf of the appellant contends that the Central Government was acting in a quasi judicial capacity when it passed the order under r 54 of the Rules and therefore it was incumbent upon it to hear the appellant before deciding the review application and inasmuch as it did not do so it contravened the principles of natural justice which apply in such a case and the order is liable to be quashed In support of this learned counsel relies on Nagendra Nath Bora and another vs The Commissioner of Hills Division and Appeals Assam and others 1 and submits that rr 52 to 55 of the Rules which are relevant for the purpose clearly show that the proceeding before the Central Government is a quasi judicial proceeding in view of the following circumstances appearing from these rules 1 Rule 52 gives a statutory right to any person aggrieved by an order of the State Government to apply for review in case of refusal of a mining lease 2 It also prescribes a period of limitation namely two months 3 Rule 53 prescribes a fee for an application under r 52 These circumstances taken with the circumstance that a lis is 1 779 created as soon as a person aggrieved by an order is given the right to go up in review against another person in whose favour the order has been passed by the State Government show that the proceeding before the Central Government at any rate at the stage Of review is quasi judicial to which rules of natural justice apply Mr G section Pathak appearing for the third respondent on the other hand contends that the view taken by the High Court is correct and that the order of January 28 1954 is a mere administrative order and therefore it was not necessary for the Central Government to hear either party before passing that order He points out that the minerals for mining which the lease is granted under the Rules are the property of the State No person applying for a mining lease of such minerals has any right to the grant of the lease According to him the right will only arise after the lease has been granted by the State Government and the review application if any has been decided by the Central Government He submits that even under r 32 which deals with priority the State Government is not bound to grant the lease to the person who applies first and it can for any special reason and with the prior approval of the Central Government grant it to a person who applies later His contention further is that as at the earlier stage when the grant is made by the State Government the order granting the lease is a mere administrative order as it must be in these circumstances he asserts the order passed on review by the Central Government must also partake of the same nature In order to decide between these rival contentions it is useful to refer to rules 52 to 55 which fall for consideration in this case These are the rules as they existed up to 1953 Since then we are told there have been amendments and even the Act has been replaced by the We are however not concerned with the Rules as modified after January 1954 or with the Act of 1957 Rule 52 inter alia provides that any person aggrieved by an order of the 780 State Government refusing to grant a mining lease may within two months of the date of such order apply to the Central Government for reviewing the same Rule 53 prescribes a fee Rule 54 may be quoted in extenso Upon receipt of such application the Central Government may if it thinks fit call for the relevant records and other information from the State Government and after considering any explanation that may be offered by the State Government cancel the order of the State Government or revise it in such manner as the Central Government may deem just and proper Rule 55 then says that the order of the Central Government under r 54 and subject only to such order any order of the State Government under these rules shall be final This Court had occasion to consider the nature of the two kinds of acts namely judicial which includes quasi judicial and administrative a number of times In Province of Bombay vs Kushaldas section Advani 1 it adopted the celebrated definition of a quasi judicial body given by Atkin L J in R vs Electricity Commissioners 2 which is as follows Whenever any body of persons having legal authority to determine questions affecting rights of subjects and having the duty to act judicially act in excess of their legal authority they are subject to the controlling jurisdiction of the King s Bench Division exercised in these writs This definition insists on three requisites each of which must be fulfilled in order that the act of the body may be a quasi judicial act namely that the body of persons 1 must have legal authority 2 to determine questions affecting the rights of subjects and 3 must have the duty to act judicially After analysing the various cases Das J as he then was laid down the following principles as deducible therefrom in Kushaldas section Advani s case 1at p 725 i That if a statute empowers an authority not being a Court in the ordinary sense to decide 1 2 781 disputes arising out of a claim made by any party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other there is a lis and prima facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi judicial act and ii that if a statutory authority has power to do any act which will prejudicially affect the subject then although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it the final determination of the authority will yet be a quasi judicial act provided the authority is required by the statute to act judicially It is on these principles which are now well settled that we have to see whether the Central Government when acting under r 54 is acting in a quasi judicial capacity or otherwise It is not necessary for present purposes to decide whether State Government when it grants a lease is acting merely administratively We shall assume that the order of the State Government granting a lease under the Rules is an administrative order We have however to see what the position is after the State Government has granted a lease to one of the applicants before it and has refused the lease to others Mr Pathak contends that even in such a situation there is no right in favour of the person to whom the lease has been granted by the State Government till the Central Government has passed an order on a review application if any Rule 55 however makes clear that the order of the State Government is final subject to any order by the Central Government under r 54 Now when a lease is granted by the State Government it is quite possible that there may be no application for review by those whose applications have been refused In such a case the order of the State Government would be final It would not therefore be in our opinion right to say that no right of any kind is created in favour of a person to whom the lease is 782 granted by the State Government The matter would be different if the order of the State Government were not to be effective until confirmation by the Central Government for in that case no right would arise until the confirmation was received from the Central Government But r 54 does not provide for confirmation by the Central Government It gives power to the Central Government to act only when there is an application for review before it under r 54 That is why we have not accepted Mr Pathak s argument that in substance the State Government s order becomes effective only after it is confirmed r 54 does not support this We have not found any provision in the Rules or in the Act which gives any power to the Central Government to review suo motu the order of the State Government granting a lease That some kind of right is created on the passing of an order granting a lease is clear from the facts of this case also The order granting the lease was made in December 1952 In April 1953 the appellant was put in possession of the areas granted to him and actually worked them thereafter At any rate when the statutory rule grants a right to any party aggrieved to make a review application to the Central Government it certainly follows that the person in whose favour the order is made has also a right to represent his case before the authority to whom the review application is made It is in the circumstances apparent that as soon as r 52 gives a right to an aggrieved party to apply for review a lis is created between him and the party in whose favour the grant has been made Unless therefore there is anything in the statute to the contrary it will be the duty of the authority to act judicially and its decision would be a quasi judicial act The next question is whether there is anything in the Rules which negatives the duty to act judicially by the reviewing authority Mr Pathak urges that r 54 gives full power to the Central Government to act as it may deem I just and proper and that it is not bound even to call for the relevant records and other information from the State Government before deciding an application for review That is undoubtedly 783 so But that in our opinion does not show that the statutory Rules negative the duty to act judicially What the Rules require is that the Central Government should act justly and properly and that is what an authority which is required to act judicially must do The fact that the Central Government is not bound even to call for records again does not negative the duty cast upon it to act judicially for even courts have the power to dismiss appeals without calling for records Thus r 54 lays down nothing to the contrary We are therefore of opinion that there is prima facie a lis in this case as between the person to whom the lease has been granted and the person who is aggrieved by the refusal and therefore Prima facie it is the duty of the authority which has to review the matter to act judicially and there is nothing in r 54 to the contrary It must therefore be held that on the Rules and the Act as they stood at the relevant time the Central Government was acting in a quasi judicial capacity while deciding an application under r 54 As such it was incumbent upon it before coming to a decision to give a reasonable opportunity to the appellant who was the other party in the review application whose rights were being affected to represent his case In as much as this was not done the appellant is entitled to ask us to issue a writ in the nature of certiorari quashing the order of January 281954 passed by the Central Government We therefore allow the appeal and setting aside the order of the High Court quash the order of the Central Government passed on January 28 1954 It will however be open to the Central Government to proceed to decide the review application afresh after giving a reasonable opportunity to the appellant to represent his case The appellant will get his costs throughout from the third respondent who is the principal contesting party Appeal allowed

The question for decision in the appeal was the right of the revenue authorities of the State Government concerned to resume certain lands known as patelki huq inam which lay in the jagir village of Nawabag situate in the ceded area of Berar The lands were granted by the then sovereign authority by way of remuneration or emoluments for services to be rendered by the patel the grant was of ancient origin and was recognised as a service inam by the British Government In the village of Nawabag there were four families of patels who went by the surnames of Dongre Rokade Raut and Ingle the members of which held the patel s office in rotation of ten years There was a partition in the Rokade family as result of which the patelki inam lands were divided and the lands in suit were allotted to the share of the appellant who never held the patel s office During an enquiry for the preparation of the record of rights of the said jagir village it was held that the appellant was not entitled to hold the patelki inam lands which were given as emoluments for service to the working patel and the Financial Commissioner finally held that the person actually working as patel was entitled to receive the full emoluments of his office and confirmed the order that the lands in possession of the appellant should be resumed and regranted to the working patel viz the respondent No 1 On the question of the true nature of the patelki huq inam two points arose 1 was it a grant by way of remuneration or emoluments of the patel s office by the use of the land or 2 was it a grant of land to the patelki family burdened with service and so long as the service was performed by any member of the family the lands were joint family lands subject to partition etc among the members of the family Held that the patelki inam in this case was in its origin a grant by way of remuneration for patelki service by the sovereign authority it was separate from and independent of the jagir of Nawabag though the land lay within the jagir village In its true character the patelki inam was land given in lieu of wages or emoluments for the office of patel it could not be freely alienated and the Government could resume the land Held further that where one of two or more patels of the village held office in turn by rotation that did not mean that 711 the patel ceases to be a patel when his turn was over he continued to be a patel and to enjoy his emoluments of office Held also that there was nothing in the Inam Rules 1859 on the basis of which a person could claim as of right that he had a share in the patelki inam lands as a member of the patel s family irrespective of whether he performed the service or not A member of the patel s family was not entitled as of right to a share in the emoluments of the patel s office and Government had every right to resume patelki inam lands and regrant them to the officiator in accordance with the provisions of the Patel and Patwaris Law 1900 and section 1900 of the Berar Land Revenue Code 1928 Held also that on the finding that the lands were given by way of emoluments for the patel s office no question of title by adverse possession arose against the Government in the circumstances of the case Venkata Jagannadha vs Veerabhadrayya 1921 LR IA 224 referred to Krishnarao vs Nilkantha and Others AIR 1922 Nag 52 Mir Subhan Ali vs Imami Begum 1925 21 Nag L Reports 117 Lakhamgouda Basavaprabhu Sardesai vs Baswantrao and Others AIR 1931 PC 157 Jaiwantrao and Another vs Sahebyao 1933 29 Nag L Reports 210 and Raje Shrinivasrao vs Raje Vinayakrao ILR discussed

Criminal Appeal No 53 of 1951 Appeal by special leave from the Judgment and Order dated the 8th June 1951 of the High Court of Judica ture at Nagpur Hemeon and Rao JJ in Criminal Appeal No 297 of 1950 arising out of the Judgment and Order dated the 11 th September 1950 of the Court of the Additional Sessions Judge of Bhandara in Sessions Trial No 25 of 1950 Bakshi Tek Chand Gopal Singh with him for the appellant section K Kapoor for the respondent March 4 The Judgment of the Court was delivered by BOSE J The appellant Kashmira Singh has been convicted of the murder of one Ramesh a small boy aged five and has been sentenced to death He was granted special leave to appeal Three other persons were tried along with him They were his brother Gurudayal singh his nephew Pritipalsingh son of Gurudayal a boy of eleven and one Gurubachan singh Gurudayal and pritipal have been acquitted Guruba chansingh confessed and was convicted He was also sentenced to death He has not appealed here The murder was a particularly cruel and revolting one and for that reason it will be necessary to examine the evidence with more than ordinary care lest the shocking nature of the crime induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and law The prosecution case is this The deceased Ramesh was the son of PW 48 LP Tiwari who was the Food Officer at Gondia at the relevant date The appellant Kashmira Singh was an Assistant Food Procurement Inspector there On the 1st of July 1949 Tiwari found the appellant and Harbilas PW 31 getting rice polished at a certain rice mill At that date the polishing of rice was prohibited by a State law Tiwari accordingly reported the matter to the Deputy Commissioner of Bhandara He suspended the 528 appellant and later his services were terminated by an order of the State Government with effect from the 7th of July The orders were communicated on the 17th of November This embittered the appellant who on at least two occasions was heard to express a determination to be revenged In pursuance of this determination he got into touch with the confessing accused Gurubachan singh and enlisted his services for murdering the boy Ramesh On the 26th of December 1949 festivities and religious ceremonies were in progress all day in the Sikh Gurudwara at Gondia The boy Ramesh was there in the morning and from there was enticed to the house of the appellant s brother Gurudayalsingh and was done to death in a shockingly revolt ing fashion by the appellant with the active assistance of Gurubachansingh in the middle of the day at about 12 or 12 30 The body was then tied up in a gunny bag and rolled up in a roll of bedding and allowed to lie in Gurudayal s house till about 7 pm At 7 pm the body wrapped as above was carried by Gurubachan on his head to a chowkidar s hut near the Sikh Gurudwara The appellant accompanied him The map Exhibit P 18A shows that the distance along the route indicated was about half a mile to three quarters of a mile It was left there till about midnight Shortly before midnight the appellant and Gurubachan engaged the services of a rickshaw coolie Shambhu alias Sannatrao PW 14 They took him to the chowkidar s hut recovered the bundle of bedding and went in the rickshaw to a well which appears from the map Exhibit 1 18A to be about half a mile distant There the body was thrown into the well hat in brief is the prosecution ease Gurubachan s confession has played an important part in implicating the appellant and the question at once arises how far and in what way the confession of an accused person can be used against a co accused It is evident that it is not evidence in the ordinary 529 sense of the term because as the Privy Council say in Bhuboni Sahu vs The King1 It does not indeed come within the definition of evidence contained in section 3 of the Evidence Act It is not required to be given on oath nor in the presence of the accused and it cannot be tested by crossexamination Their Lordships also point out that it is obviously evidence of a very weak type It is a much weaker type of evidence than the evidence of an approv er which is not subject to any of those infirmities They stated in addition that such a confession cannot be made tile foundation of a conviction and can only be used in support of other evidence In view of these remarks it would be pointless to cover the same ground but we feet it is necessary to expound this further as misapprehension still exists The question is in what way can it be used in support of other evidence Can it be used to fill in miss ing gaps Can it be used to corroborate an accomplice or as in the present case a witness who though not an accom plice is placed in the same category regarding credibility because the judge refuses to believe him except in so far as he is corroborated In our opinion the matter was put succinctly by Sir Lawrence Jenkins in Emperor vs Lalit Mohan Chuckerbutty2 where he said that such a confession can only be used to lend assurance to other evidence against a co accused or to put it in another way as Reilly J did in In re Periyas wami Moopan3 the provision goes no further than this where there is evidence against the co accused sufficient if believed to support his conviction then the kind of confession de scribed in section 30 may be thrown into the scale as an additional reason for believing that evidence 1 1949 76 IA 147 at 155 3 Mad 75 at 77 2 CAl 559 at 588 530 Translating these observations into concrete terms they come to The proper way to approach a case of this kind is first to marshal the evidence against the accused excluding the confession altogether from consideration and see whether if it is believed a conviction could safely be based on it If it is capable of belief independently of the confession then of course it is not necessary to call the confession in aid But cases may arise where the judge is not prepared to act on the other evidence as it stands even though if believed it would be sufficient to sustain a conviction In such an event the judge may call in aid the confession and use it to lend assurance to the other evi dence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept Then as regards its use in the corroboration of accom plices and approvers A co accused who confesses is natu rally an accomplice and the danger of using the testimony of one accomplice t0 corroborate another has repeatedly been pointed out The danger is in no way lessened when the evidence is not on oath and cannot be tested by cross examination Prudence will dictate the same rule of caution in the case of a witness who though not an accomplice is regarded by the judge as having no greater probative value But all these are only rules of prudence So far as the law is concerned a conviction can be based on the uncorroborat ed testimony of an accomplice provided the judge has the rule of caution which experience dictates in mind and gives reasons why he thinks it would be safe in a given case to disregard it Two of us bad occasion to examine this recently in Rameshwar vs The State of Rajasthan1 It follows that the testimony of an accomplice can in law be used to corroborate another though it ought not to be so used save in exceptional circumstances and for reasons disclosed As the Privy Council observe in Bhuboni Sahu vs The King2 The tendency to include the innocent with the guilty is peculiarly prevalent in India as judges have 1 2 1949 76 I A147 at 157 531 noted on innumerable occasions and it is very difficult for the court to guard against the danger The only real safeguard against the risk of condemning the innocent with the guilty lies in insisting on independent evidence which in some measure implicates such accused Turning now to the facts of the present case The evidence on which the prosecution relies apart from the confession is this 1 Previous association between Gurubachan and the appellant The only evidence about this is PW 23 Upasrao a water carrier He speaks of three meetings and is curiously definite about days of the week and times though he did not know on what day of the week diwali fell nor could he give the names of anybody else he met on those occasions Howev er for what it is worth he says he saw them talking 1 three weeks before the murder v on the 24th and 3 on the 25th They spoke in Punjabi which he does not under stand but on the second occasion he heard them mention the name of Ramesh Two of these meetings namely the first and the third tally with two of the only three meetings de scribed in the confession It is proved that the witness did not disclose these facts to the police but despite that the Sessions Judge believed him because of the confession The High Court appear to have disbelieved him for in paragraph 37 of the judgment the learned judges point out that he is contradicted by his own statement to the police There his story was that the three brothers met and not Gurubachan and the appellant This evidence can therefore be disregarded and consequently the confession cannot be used to prove previous association It was argued however that if it is proved that the appellant helped in disposing of the body after the murder then their previous association can be inferred because one would hardly seek the assistance of a stranger for a task like that That has some force but the weakness of that in this case lies on the fact that 532 according to the prosecution case as disclosed in the confession Gurubachan was a stranger to Gondia i He had come there only six weeks before the murder and did not meet the appellant till three weeks later and then only casually Their second meeting equally casual was on the 21st that is five days before the murder and on that date the appel lant is said to have disclosed his intention to this strang er whom he had only met once before It is true this strang er knew the appellant s brother but how The brother was a travelling ticket inspector on the railway and used to allow Gurubachan to travel without a ticket presumably because he was also a Sikh If probabilities are to be called in aid the story disclosed in the confession has distinct weakness es particularly as Gurubachan s assistance was wholly unnecessary If the confession is true there was a well thought out plot timed with the precision almost of a minor military operation At a given moment the nephew Pritipal was to decoy the deceased away from his companions and isolate him Then after leading him several hundred yards down the road hand him over to Gurubachan Gurubachan was to take him down to point No 6 on the map well over half a mile from the spot where he took over from Pritipal In the meanwhile the appellant was to walk another half mile at right angles to Gurubachan s course to the point No 15 to hire a cycle From there he was to cycle close on a mile to point No 6 and meet Gurubachan and the boy As the learned High Court Judges who made a spot inspection point out the route would lie through a crowded bazaar locality From point No 6 Gurubachan was to hand over the child to the appellant who was to cycle with him close on a mile to his brother Gurudayal s quarters point No 16 through this same crowded bazaar In the meanwhile Gurubachan was to walk back to his house No 17 and pick up a chisel and a piece of wire for the purpose of the murder and rejoin the appellant at Gurudayal s house As will be seen the timing would have to be within fairly close tolerances Then at the murder itself what 533 assistance did Gurubachan give Nothing which a grown man could not easily have accomplished him self on a small helpless victim of five The appellant could have accomplished all this as easily without the assistance of Gurubachan and equally Gurubachan a mere hired assassin could have done it all himself without the appellant running the risk of drawing pointed attention to himself as having been last seen in the company of the boy We hold that previous association of a type which would induce two persons to associate together for the purposes of a murder is not established 2 That the deceased Ramesh was in the Gurudwara about 9 30 or 10 in the morning of the 26th This is not disputed 3 That Kashmira Singh who had gone to the Gurudwara in the morning was absent between 11 AM and 12 45 PM That the appellant was at the Gurudwara in the morning is not disputed in fact his case is that he was there the entire day The evidence to prove that he left it between these hours consists of three persons PW 30 Atmaram PW 35 Tilakchand and PW 5 Bisan The prosecution story is that the appellant left the Gurudwara about 11 AM to go to the shop of PW 5 Bisan to hire a cycle He was first seen by PW 35 Tilakehand a wood stall keeper at point No 13 just near the Gurudwara The witness places the time at about 10 30 or 11 AM He says he saw him coming from the direction of the railway station and going past his stall Fifteen minutes later he went past his stall again in the opposite direction that is to say towards the railway station which lies on his way to the cycle shop Next comes PW 30 Atmaram He keeps a bookstall on the broad gauge platform of the Gondia Railway Station He says he saw the appellant coming from the bridge and going to wards the Railway Police 69 534 Station of all places in the world He came near enough the witness to wish him good day He places the time at about 10 30 or 11 The only comment we make on this witness is that he says he used to see the appellant at the station almost every day and they used to greet each other The possibility that the witness is mixing up this day with one of the other days cannot be excluded It is certainly a matter for comment that a would be murderer on his way to hire a cycle for the purpose and keep an assignment with his accomplice and victim should go out of his way and either go on to or very near the railway platform to greet a person he knows there and then walk away towards the police station of all places where the danger of recognition would be strong Next there is PW 5 Bisan the man in charge of the cycle shop He speaks from his register and says the appel lant hired a cycle from him on that day at 11 20 AM and returned it at 12 45 PM The Sessions Judge and the High Court lay great stress on this witness But as against this is the evidence of Anupsingh Bedi DW 1 a respectable disinterested witness who is a resi dent of Nagpur He says he saw the appellant at the Gurudwa ra at 11 and again about 11 45 AM The sessions Judge thought he was interested because he admits he reported a complaint he had received from Gurudayalsingh to the effect that the appellant was being harassed by the police and that they threatened to arrest ladies also to the Inspector General of Police and the Home Minister He explained that as head of the Sikh community in that State he felt bound to pass on these complaints to the highest authorities We are unable to regard this as disclosing interest There is no suggestion that what he did was improper and we are of opinion he did nothing more than any man of responsibility in his position would have done The High Court has not criticised him The learned Judges merely say that he may be mistaken as to the time nor of course does he suggest that he is giving more than a mere estimate All he 535 says is that It may have been about 11 45 AM by this time We do not think there is much in all this Nobody except PW 5 Bisan pretends to be exact and when one is guessing at the time several days after the event there really is not much discrepancy between 11 20 and 11 45 Even if it was 11 45 there would still have been sufficient time to commit the murder As two Courts have believed the evi dence on this point without calling in aid the confession we are not prepared to depart from our usual rule regarding concurrent findings of fact We will therefore accept the position that the appellant was absent from the Gurudwara long enough to enable him to commit the murder We will also take into consideration the fact that he made a false statement on this point when he said he was not away at all 4 Disposal of the body The rest of the evidence relates to the disposal of the body and the only direct evidence connecting the appellant with this apart from the confession is that of Sannatrao PW 14 the rickshaw coolie He does not bring the appellant into the picture till about midnight Now this coolie is a very shaky witness We cannot but note the remarkable series of coincidences which emerge from his testimony First he is not a rickshaw coolie at all He merely hap pened to hire a rickshaw that night and he told the police that this was the first time he had ever done that at night after a day s work Next he knew the appellant because he happened to be a chowkidar in the Food Office at Gondia at the same time that the appellant was there as a Food Inspec tor But at the date of the incident neither was still in service so by a somewhat strange coincidence the appellant happens to hire for the first time this old co worker in the middle of the night who in his turn happened to hire also for the first time at night a rickshaw for which he had no licence Next comes a still stranger coincidence He is taken to within a few paces of his own house and the body 536 is dumped in his presence into a welt a stone s throw from where he lives Gurubachan tells us that earlier in the day about 7 PM he Gurubachan had carried unaided the bedding on his head for a distance which we know was hail to three quarters of a mile namely from Gurudayal s house to the chowkidar s hut Despite this the two are said to have engaged this rickshaw coolie to carry it just hall a mile a shorter distance to the well and there they threw it in in the man s presence and none of this was disclosed to the police till a month later namely the 17th of January though the witness was present when the body was recovered and though he was questioned on three previous occasions We do not doubt that a rickshaw was used because rick shaw tracks were discovered by the well long before anybody had suggested that a rickshaw had been used But we find it difficult to resist the inference that this witness was an accomplice so far as the disposal of the body was concerned Consequently he is in much the same category so far as credibility is concerned That brings us at once to the rule that save in exceptional circumstances one accomplice cannot be used to corroborate another nor can he be used to corroborate a person who though not an accomplice is no more reliable than one We have therefore either to seek corrobo ration of a kind which will implicate the appellant apart from the confession or find strong reasons for using Guruba chan s confession for that purpose Of course against Gurubachan there is no difficulty but against the appellant the position is not as easy We will therefore examine the reliability of Guruba chan s confession against the appellant Now there are some glaring irregularities regarding this confession and though it was safe for the Sessions Judge and the High Court to act on it as against Gurubachan because he adhered to it throughout the sessions trial despite his pleader s efforts to show the contrary a very different position emerges when we come to the appellant 537 The first point which emerges regarding this is that the confession was not made till the 25th of February 1950 that is to say not until two months after the murder We do not know when Gurubachan was first interrogated but PW 42 Narayandas tells us that when he was taken to the police station house at Gondia for interrogation about the 1st or 3rd January he saw Gurubachan sitting in the police lock up We do not know how long he was kept there like this but it is evident that he was not there voluntari ly at any rate till the 1st or 3rd because the Station Officer PW 44 says that until Gurubachan Singh was ar rested he used to be allowed to go home Also he says that Gurubachan was interrogated several times and was confronted with Pritipal However eventually Gurubachan was allowed to go away and he went to Balaghat Then on the 16th of February the Station Officer PW 44 went to Balaghat brought Gurubachan back with him to Gondia and handed him over to the CID Inspector Guha Guha PW 50 tells us that from then till the 20th of February when he was arrested he was kept under observation but was allowed to go home at night He did not confess till the 25th and the Station Officer PW 44 tells us that from the 20th to the 25th he was kept in one of the rooms in Guha s quarters Then after the confes sion on the 25th he was taken back to Guha s custody for a couple of days and then only was he sent to the magisterial lock up See Guha s evidence He was kept in this lock up till the conclusion of the committal proceedings that is till the 30th of June instead of being sent to jail custody in Bhandara where there is a jail The other accused includ ing Pritipal who had by then confessed were sent to Bhanda ra Now though Gurubachan was kept in the magisterial lock up the distinction between the magisterial lock up and police custody in Gondia is only 538 theoretical In practice it is no better than police custody Police constable Lalbahadur PW 55 tells us that The Station House Officer Gondia deputes constables for duty in the lock up The constables in charge take the prisoners out to the latrine and also arrange for their food The Head Constable in fact is in charge Also Guha admits that he interrogated Gurubachan in the lock up twice within the ten days which succeeded the confession This is in disregard of the Rules and Orders Criminal of the Nagpur High Court which enjoin at page 25 paragraph 84 of the 1948 edition that After a prisoner has made a confession before a a magistrate he should ordinarily be committed to jail and the magistrate should note on the warrant for the information of the Superintendent of the jail that the prisoner has made a confession No explanation has been given why these directions which were made for good reason were disregarded in Guruba chan s case As we have said the other prisoners were all committed to jail custody in the usual way so there was no difficulty about observing the rule All this makes it unsafe to disregard the rule about using accomplice testimo ny as corroboration against a non confessing accused None of the judges who have handled this ease has given any reason why this rule could safely be departed from in this particular case In the circumstances we do not feel that the confession by itself can be used to corroborate the rickshaw coolie Sannatrao PW 14 But there is other corroboration It consists of the sari border and this is the next point on which the prosecution relies There is one argument about this confession advanced on behalf of the appellant with which we shall have to deal The prosecution were criticised for not calling the magis trate who recorded the confession as a witness We wish to endorse the remarks of their 539 Lordships of the Privy Council in Nazir Ahrnad vs King Emperor 1 regarding the undesirability of such a practice In our opinion the magistrate was rightly not called and it would have been improper and undesirable for the prosecution to have acted otherwise 5 Sari borders Articles F G and T Articles F G are two pieces of a sari border which were used for tying up the mouth of the gunny bag in which the body was placed The evidence about that is beyond doubt Article T is another piece of a sari border which was found in the appellant s house on the 30th or December 1949 It is true the appellant was not present at the time but his mother was there and it will be seen that it was seized on the same day that the body was discovered There is strong proof that Articles F and G are a part of the same border as Article T and as there is a concurrent finding regarding these facts we are not prepared to to take a different view That therefore affords corroboration of Sannatrao s evi dence and the confession can be called in aid to lend assur ance to the inference which arises from these facts namely that the appellant did help to dispose of the body The High Court and the Sessions Judge were accordingly entitled to act on this evidence for establishing that particular fact and we are not prepared to disturb their concurrent conclusions But the matter cannot be carried further because not only are the sari borders not proved to have had any connection with the crime of murder but the confes sion shows that they did not The only conclusion permissi ble on these facts is that the appellant at some time which is unknown subsequent to the murder assisted either active ly or passively in tying up the gunny bag in which the corpse was placed and that he then accompanied Gurubachan in the rickshaw from the chowkidar s hut to the well in the middle of the night 6 Coat Article X and Safa Article Y 1 AIR 1936 PC 253 at 258 540 These were seized on the 20th of January 1950 from a trunk in the house of the appellant s brother Gurudayalsingh The appellant s house is not in this neighbourhood It is some distance away in another part of the town The coat is a uniform coat of the kind worn by a Travelling Ticket Inspector on the Railways Gurudayal is a travelling Ticket Inspector The appellant is not Here again the appellant was not present when the seizures were made This coat and safa were recovered in the fourth search The first search was on the 30th of December 1949 The next on the 10th of January 1950 The third on the morning of the 20th and the fourth in the afternoon of the 20th These Articles were not found in the first three searches The Chemical Examiner reports that there is one minute blood stain on the safa and some the number is not given also minute on the coat The seizure memo exhibit P 55 picked out only five Those stains are not proved to be of human blood Now there is next no evidence to connect either the coat or the safa with the appellant The High Court has relied on the evidence of Sannatrao PW 14 Gokulprasad the Station Officer PW 44 and Tiwari PW 48 Sannatrao does no more than say that he noticed the appellant wearing a popat coloured sara and a black coat But he was not able to describe the clothes of the passenger he had carried immediately before the appellant nor was he able to de scribe the appellant s coat in detail That therefore is no identification of this coat with the one the appellant wore or owns The Station Officer Gokulprasad said that he had seen the appellant wear this very coat and sara and there fore he identified them as his clothes In cross examina tion he admitted that he had only seen the appellant on three occasions but not to speak to Consequently that is not strong evidence of identification But what in our opinion is almost conclusive against this identification is that Tiwari PW 48 who is clearest on the point and who of course had the best opportunities for observation 541 gives a distinctive feature of the appellant s coat namely that it had only one button That is one of his reasons for knowing what the appellant used to wear But the seizure memo exhibit P 55 shows that the coat Article X had two buttons In the circumstances we find it difficult to see how it can be the appellant s coat There is another strong point in the appellant s favour which the High Court has not noticed PW 35 the wood stall keeper Tilakchand who saw him on his way to pick up his victim is definite that the appellant was not wear ing a coat at the time It is difficult to see why he should have donned a coat and got it stained with blood just for murdering a child of five In our opinion it would be unsafe to conclude on this evidence that any connection is established between the coat and the sara and the appellant The furthest point to which this evidence can be pushed is to indicate that the appellant possessed a coat similar to Article X but which was not Article X We do not ordinarily interfere with a concurrent finding of fact but when the finding omits to notice these two very important points in the accused s favour which in our opinion swing the balance the other way we are unable to let the finding stand In our opinion the nexus between the appellant and the coat and the sara is not established 7 Motive This is the last piece of evidence on which the prosecution rely Both courts hold that the motive is established and there is strong evidence to prove it We accordingly accept the finding that the appellant had a motive for enmity against Tiwari and that he had expressed a determination to be revenged The only comment we will make is that other persons who were also dismissed from service had similar motives What then is the summary of the evidence In the appel lant s favour there are the facts that there is no proof of his having been last seen in the company of 70 542 the deceased The only evidence of the boy s movements is that of Krishna alias Billa PW 9 a boy of seven years and all he says is that Pritipal asked him to bring Ramesh with him to the Gurudwara that morning about 9 AM The boys played about and had some tea and then Pritipal took Ramesh away in the direction of the prostitute s house Pritipal later returned without Ramesh The Sessions Judge thought this witness had been tutored on at least one point Pritipal s so called confession has been rejected because in the first place it is not a confession at all for it is exculpatory and in the next the High Court was not able to trust it Therefore the only evidence of the boy s last movements is as above The next point in the appellant s favour is that he was seen without a coat shortly before the murder and at a time when he was not in the vicinity of his own house According to the prosecution the murderer wore the coat Article X and the sara Article Y The third point is that the appellant was not seen by anyone in the vicinity of the place of occurrence The fourth point is that if the prosecution case is true then it is remarkable that no one saw the appellant and the boy on a cycle through nearly a mile of what the High Court which made a spot inspection describes as a crowded locality The points against the appellant are 1that he had a motive and that he said he would be revenged 2 that he was absent from the Gurudwara about the time of the murder long enough to enable him to commit it and denied the fact 3 that some twelve hours after the crime he assisted in removing the body from a place between half to three quar ters of a mile distant from the scene of the crime and 4 that at some unknown point of time he assisted in tying up the mouth of the gunny bag in which the body was eventually placed In our opinion it would be unsafe to convict of murder on these facts 543 A number of rulings were cited including one of the Privy Council and it was argued that in those cases persons were convicted of murder on similar facts We do not intend to examine them because no decision can be a guide on facts Each case has its own special circumstances and must be decided on its own facts For example in most of the cases cited the accused was associated with the disposal of the body very soon after the occurrence and at the scene of the crime Here twelve hours had elapsed and the first connection proved with the disposal is at a place over half a mile distant from where the boy is said to have been murdered Next the points we have shown in favour of the appellant in this case were not present there We allow the appeal on the charges of murder conspiracy and kidnapping and reverse the findings and sentences on those charges and acquit the appellant of them We however convict the appellant of an offence under section 201 Indian Penal Code and sentence him to seven years rigorous imprisonment The learned Sessions Judge omitted to record a convic tion under section 201 because he was convicting the appel lant of murder He followed a Nagpur decision which holds that in such a case it would be improper to convict in the alternative We express no opinion about that the question does not arise as we have acquitted the appellant of the murder and the cognate charges The case now falls in line with that of the Privy Council in Begu vs The King Emperor1 and the conviction and sentence are confined to section 201 1 1925 52 IA 191

The appellants were prosecuted for having committed offences under section 120B read with Ss 302 and 436 of the Indian Penal Code and their case was taken up for trial before the Third Tribunal constituted under the West Bengal Tribunals of Criminal jurisdiction Act 1952 WB Act XIV of 1952 By a notification dated September 12 1952 and issued under section 2b of the Act the Government of West Bengal declared the whole area within the jurisdiction of Kakdwip and Sagar Police Stations to be a disturbed area and specified the period from January 1 1948 to March 31 1950 to be the period during which the notification was to be effective The case against the appellants was that between the dates mentioned in the notification they took leading part in a violent movement called the Tebhaga movement in Kakdwip and incited the Bhagehasis ie the cultivators who actually cultivated the land to claim the entire crop instead of 23 share of it and that they preached murder and arson amongst the cultivators and such preaching was followed by arson and murder on a large scale The appellants moved the High Court for an order quashing the proceedings against them on the ground that section 2b of the Act which allowed the Government to declare an area in which there was disturbance in the past to be a disturbed area offended article 14 Of the Constitution as discriminating between persons who had committed the same offences and whose trials had already concluded before the notification under the normal and more advantageous procedure and others whose trials had not concluded and who had to be tried by a less advantageous and special procedure prescribed by the Act The application of the appellants was first heard by a bench of two judges but as there was difference of opinion between them the matter was referred to a third judge and the High Court by a majority held that the provisions of the impugned Act were intra vires and did not offend article 14 of the Constitution On appeal by special leave challenging the vires Of section 2b and the proviso to section 41 Of the Act Held per Sinha CJ Gajendragadkar and Shah jj that the equality before law guaranteed by article 14 no doubt prohibits class legislation but it does not prohibit the Legislature to legislate 647 on the basis of a reasonable classification If any state off acts can reasonably be conceived to sustain a classification the existence of that state of facts must be assumed Chiranjitlal Choudhuri vs The Union of India and Others and Kedar Nath Bajoria vs The State of West Bengal followed Where the classification is reasonable and is founded on an intelligible differentia and that differentia has a rational relation to the object sought to be achieved by the statute the validity of the statute cannot be successfully challenged under article 14 Since the classification made by the impugned Act is rational and the differentia by which offenders are classified has a rational relation with the object of the Act to provide for the speedy trial of the offences specified in the Schedule section 2b and the proviso to section 41 of the Act cannot be said to contravene article 1 Of the Constitution even though the procedure prescribed by the Act may amount to discrimination The State of West Bengal vs Anwar Ali Sarkar 1952 SCR 284 distinguished Kathi Raning Rawat vs The State of Saurashtra 1952 SCR 435 Lachmandas Kewalram Ahuja and Another vs The State Of Bombay and Gopi Chand vs Delhi Administration considered Per Sarkar and Subba Rao jj dissenting Whether a law offends article 14 or not does not depend upon whether it is prospective or retrospective for both prospective and retrospective statutes may contravene the provisions of that Article Although the general rule is that a law must apply to all persons it is permissible to validly legislate for a class within certain well recognised limits The true test of a valid classification is that it must be capable of being reasonably regarded as being based upon a differentia which distinguishes that class from others and the differentia itself must have a reasonable relation with the object the statute has in view Shri Ram Krishna Dalmia vs Shri justice SR Tendolkar followed The object of the Act in question being to secure a speedy trial of certain offences committed in a specified area during a specified period of time in the interest of the security of the State and the maintenance of public peace and tranquillity in a disturbed area a distinction made between the cases where the trials had been concluded and the cases where the trials had not yet been concluded is not a distinction which has any rational relation to the object In order to secure that object it is necessary to place both classes of persons in the same situation Gopi Chand vs Delhi Administration distinguished 648 The Act in so far as it permits an area which was a disturbed area in the past to be declared a disturbed area for the purposes of the Act offends article 14 of the Constitution and is therefore unconstitutional and void That portion Of section 2b which declares an area to be a disturbed area in the past and the notification in question must therefore be held to be void

ppeal No200 of 1955 Appeal from the judgment and decree dated January 20 1943 of the Madras High Court in A section No 392 of 1943 arising out of the judgment and decree dated March 30 1943 of the Sub Judge Tuticorin in O section No 34 of 1939 section V Venugopalachariar and section K Aiyangar for the appellant No 2 A V Viswanatha Sastri R Ganaapathy Iyer and G Gopalakrishna for respondent No 1 1960 January 14 The judgment of the Court was delivered by HIDAYATULLAH J This appeal has been filed on leave granted by the High Court of Madras against its judgment and decree dated January 20 1947 by which the decree of the Subordinate Judge Tuticorin dated March 30 1943 was substantially modified 93 730 Before the application for leave to appeal to the Judicial Committee could be filed the first defendant Ramasami Pillai died and the application for leave was filed by his widow R Muthammal who was the fourth defendant in the suit R Muthammal also died soon afterwards and her place was taken by Parameswari Thayammal her daughter born of Ramasami Pillai who was the fifth defendant in this case Along with these three defendants the other members of Ramasami Pillai s family were also joined as defendants The suit was filed by Sri Subramaniaswami Devasthanam Tiruchendur hereinafter called for brevity the Devasthanam and the Devasthanam is the only contesting respondent in this Court One Poosa Pichai Pillai had five sons and three daughters of whom Meenakshisundaram Pillai died on May 21 1919 Before his death Meenakshisundaram Pillai executed a registered will on May 20 1919 and a registered codicil on May 21 1919 By these documents he left his entire property to his only son M Picha Pillai with the condition that should he die without issue the property was to go to the Devasthanam M Picha Pillai died a bachelor on December 10 1927 Three claimants claimed the property after his death The first naturally was the Devasthanam claiming under the gift over to it The other two were the heirs of M Picha Pillai who asserted that the gift over was void and Meenakshisundaram s wife s brother and sister Arunachala Irungol Pillai and NS Muthammal third defendant respectively who claimed under an alleged will of M Picha Pillai The heirs of M Picha Pillai were defendants 7 8 10 13 and 14 the father of defendants 9 and the first defendant These claimants denied the claim of the Devasthanam contended that the will and the codicil above mentioned gave an absolute estate to M Picha Pillai and that the gift over to the Devasthanam was therefore void The Devasthanam filed OSNo 57 of 1932 for declaration and possession of the properties covered by the will together with other reliefs During the pendency of the suit the heirs of M Picha 731 Pillai and the present defendants 15 and 16 two of the three sons of Arunachala Irungol Pillai assigned their interest in favour of the Devasthanam The result of the suit therefore was that a decree in favour of the Devasthanam was passed in regard to the interest of the assignors but it was dismissed as regards the interest of NS Muthammal third defendant and Pothiadia Irungol Pillai second defendant who had not entered into the compromise It May be mentioned here that by exhibit D 22 a registered agreement dated May 20 1928 the heirs had already agreed to give to Arunachala Irungol Pillai and NS Muthammal one eighth share each respectively in the properties of M Picha Pillai Thus by this compromise the Devasthanam received 56th share of the properties of M Picha Pillai the remaining 16th going to Pothiadia Irungol Pillai 124th and NS Muthammal 18th The Devasthanam filed an appeal in the High Court against the dismissal of the suit in respect of this 16th share and failed An appeal was then taken to the Judicial Committee which also failed The judgment of the Privy Council is reported in Sri Subramaniaswami Temple vs Rama samia Pillai 1 Without waiting however for the result of the appeal in so far as the 16th share was concerned the Devasthanam filed the present suit joining the two sets of claimants for declaration ejectment and possession by partition of the properties to which it claimed title and for mesne profits The properties were shown in various schedules annexed to the plaint but it is unnecessary to refer to those schedule except were the needs of the judgment so require One of the contentions raised by the plaintiff Devasthanam in this suit was that the first defendantRamasami Pillai was not entitled to a share in the properties as an heir of M Picha Pillai being a lunatic when succession to these properties opened Onbehalf of the first defendant Ramasami Pillai who contested the suit through his wife and guardian RMuthammal it was contended that he was not a 1 732 lunatic buddhi swadeenam illadavar but only a person of weak intellect buddhi deechanya matra and thushe was not excluded from inheritance This point was the main argument in this appeal because the two Courts below reached opposite conclusions According to the Subordinate Judge of Tuticorin Ramasam Pillai s plea was correct and proved The High Court on the other hand held that the mental defect in Ramasami Pillai amounted to lunacy and that it disentitled him to a share Connected with this above matter is the second contention raised by Ramasami Pillai that he was entitled to a 19th share by virtue of an alleged agreement stated on affidavit in exhibit D 7 by Doraiappa Pillai on April 1 1931 We shall give the details of this contention hereafter The third contention raised in this appeal and also before the High Court was that the properties described in plaint sch 4 A were the subject matter of a decree dated September 19 1927 in favour of M Picha Pillai in OSNo 35 of 1924 filed by him against his cousins According to Ramasami Pillai first defendant the decree was not executed for a period of 12 years and the claim thereto was therefore barred under section 48 of the Code of Civil Procedure and thus the Devasthanam was not entitled in this suit to claim possession of those properties We shall begin with the question whether Ramasami Pillai was excluded from inheritance by reason of his mental condition on December 10 1927 The argument of the appellant is two fold The first is on the fact whether Ramasami Pillai was a lunatic within the Hindu law texts The second is a question of law whether this lunacy was not required to be proved to have been congenital to disentitle Ramasami Pillai to succeed to his father We shall deal with these two questions separately In view of the fact that the two Courts below had reached opposite conclusions on the fact of lunacy we have looked into the evidence in the case and have heared arguments for the appellant We are satisfied that the opinion of the High Court is correct in all the circumstances of this case The argument on behalf 733 of the appellant was that in judging this issue we should see the evidence regarding the mental condition of Ramasami Pillai antecedent and subsequent to December 10 1927 the conduct of his father relatives and the other claimants of the property It was contended that Ramasami Pillai was attending school though nothing was shown to us from which we infer that he had profited by the attempts to educate him The appellant however set great store by two documents Exs D 1 and D 2 executed by his father Perumal Pillai in January and April 1924 By the first Perumal Pillai released his claim to certain properties in favour of his four sons mentioning therein Ramasami Pillai without adverting to the fact that he was a lunatic and without mentioning a guardian By the second which was a will Perumal Pillai gave equal shares in his properties to his sons including Ramasami Pillai and once again without a mention of his mental condition It was contended that Perumal Pillai was a Sub Registrar who would know the importance of such a fact and also the law that a lunatic was not entitled to succeed The fact that the father in these two documents made no mention of the mental condition of his son does not bear upon the present case for two reasons The first is that the case of Ramasami Pillai in this suit was that he was quite sane till 1924 and that his mental condition deteriorated only after that year The second is that the omission by the father to mention this fact might be grounded on love and affection in which the claim of a mentally defective child might not have been viewed by him in the same manner as the law does It was next contended that the other heirs recognised the right of Ramasami Pillai in April 1928 and agreed to give him a 19th share as has been already stated above That too would not prove that Ramaswami Pillai was entitled in law to a share The compromise which is also contested might have been out of motives of charity but might not have been due to the fact that Ramasami Pillai s right to a share was legally entertainable The evidence however of Ramasami Pillai s mental incapacity is really voluminous Between 734 June 1924 and till his death numerous suits were filed by different members of the family including his wife his cousins uncle and aunt in which Ramasami Pillai was always shown as a lunatic requiring the appointment of a next friend or a guardian ad litem In one case only where Ramasami Pillai was the second defendant an appearance was entered on his behalf by a vakil who contended that Ramasami Pillai was sane and ought to be represented in person The Court on that occasion appointed the Head Clerk of the Court as his guardian and asked him to report about the condition of Ramasami Pillai Ramasami Pillai was also asked to appear in Court in person so that the Court might form its own opinion by questioning him The Head Clerk visited Ramasami Pillai and submitted his report exhibit P 8 in which lie described his observations It appears that Ramasami Pillai did not even give his name when questioned and appeared to be woody and silent The relatives felt that he was hungry and fed him but even after this Ramasami Pillai did not give any answers to the questions put to him in the presence of his wife and others The Head Clerk therefore reported that the appearance of Ramasami Pillai as a gloomy and sickly person with a vacant look and that his inability to answer even the simple question about his name clearly showed that he was insane This report was presented to the Court in the presence of the vakil who had filed the vakalatnama and on September 201924 an order G section No 35 of 1924 was recorded by the Subordinate Judge exhibit P 9 It was mentioned therein that the report was not objected to by the vakil for Ramasami Pillai and that Ramasami Pillai was treated as a lunatic Ramasami Pillai himself did not appear It was contended that this enquiry as well as the fact that in numerous litigations Ramasami Pillai had a guardian or next friend to look after his interests did not prove that he was insane within the meaning of the Hindu law texts it only proved that he was a person incapable of looking after his interests and for the purposes of the conduct of the suits a guardian or next friend as the case might be was necessary In our opinion the long and continued course of conduct 735 on the part of the various relatives clearly shows that Ramasami Pillai was in fact a lunatic and the report of the Head Clerk given in a case long before the present one was ever contemplated shows only too clearly that he was for all intents and purposes not only a person who was slightly mentally deranged but one who was regarded and found to be a lunatic There being this evidence the distinction now sought to bemade and which appealed to the Subordinate Judge of Tuticorin is not borne out by the evidence in the case Such a long and continuous course of conduct clearlyproves the contention that Ramasami Pillai was infact mad Further in exhibit D 22 dated May 20 1928 Ramaswami Pillai was not considered as a claimantand his claims could not have been overlooked by all his relatives simply because they were to get an additional share each in the property by reasonof his exclusion Some one of his relatives would havefelt the need for asserting the claim on his behalf ifhe himself did not do so In view of the fact that thepreponderance of probabilities is in favour of thedecision of the High Court we do not think that theappellant has succeeded in establishing the distinctionwhich was made in the case between a lunatic and aperson of weak intellect on the evidence such as it is This brings us to the next contention which is oneof law It may be pointed out here that before theSubordinate Judge Ramasami Pillai did not raise thecontention that as a matter of law insanity must becongenital before a person would be excluded from inheritance Learned counsel for the appellant explained that it was futile to raise this contention in view of the decision of the Madras High Court in Muthusami vs Meenammal 1 in which it was ruled that insanity need not be congenital to create the disability and that insanity at the time succession opened was enough The point however appears to have been raised in the High Court but it was decided against Ramasami Pillai The soundness of this view is questioned in this appeal The argument shortly is this The text of Manu ix 201 mentions many causes of exclusion from 1 736 inheritance some of which like blindness mutenessidiocy and lameness it is settled must be congenital to exclude a person from inheritance It is argued that the collection of the words in the text suggests that insanity like these other disabilities must also be congenital No doubt the word Unmatha comes between the words Jatyandhabadhirau and Jadamukascha but the rulings have uniformly held that for the madness the test that it should be congenital does not apply The argument now raised has the support of the opinion expressed by Dr Sarvadhikari in his Principles of Hindu Law Inheritance 2nd Edn p 846where the author expounded the text according to rules of grammar though he was doubtful if according to medical science madness as opposed to idiocy is ever congenital The translations of the same text by Setlur Gharpure and Dr Ghose do not admit this interpretation In Muthusami vs Meenammal 1 it was pointed out also that Unmatha was not qualified by the word Jati Seshagiri Ayyar J observed that it according to Mimamsa rules of interpretation an adjective qualifying one clause should not by implication qualify a different clause The counsel on that occasion agreed that this was the correct approach but relied upon the opinion of Dr Sarvadhikari which was not accepted Learned counsel for the appellant also referred to the opinion of Colebrooke in his Digest Vol 11 p 432 Colebrooke s translation is based upon the commentary of Jagannatha Tarkapanchanana and it is Jagannatha who made no difference between the various disabilities and opined that madness like blindness or muteness must be also congenital No doubt much weight must be attached to the opinion of Jagannatha who was one of the most learned pandits that Bengal had ever produced But this translation of Colebrooke has not been universally accepted and is not borne out by the original texts and commentaries on the Mitakshara Dr Ghose in his Hindu Law Vol 1 p 224 has expressed his doubts The texts of Narada XIII 21 22 Yajnavalkya 11 140 141 and others do not show that the defect of madness must also be 1 Mad 464 737 congenital In Saraswati Vilasa 148 the emphasis of congenital disability is placed on blindness and deafness Similarly in Smriti Chandrika Chap V 4 persons born blind and deaf are mentioned apart from madmen and idiots That idiots must be congenitally so is ruled by the Courts The cases that have come before the Courts have Devasthanam all been uniform except Murarji Gokuldas vs Parvatibai 1 where the observation is obiter and Sanku vs Puttamma 2 which was dissented from in later cases On the other hand Wooma Pershad Roy vs Grish Chunder Prochundo 3 Deo Kishen vs Budh Prakash 4 and other decisions have clearly held the contrary In two cases before the Privy Council it was assumed that madness need not be congenital It may also be noted that when the Legislature passed the Hindu Inheritance Removal of Disabilities Act XII of 1928 making the change to madness from birth as a ground of exclusion the law was not made retrospective thus recognising the correctness of the judicial exposition of the original texts In this view of the matter we do not think that we should unsettle the law on the subject nor has it been made to appear to us that any different view is open We accordingly do not accept the contention The result is that Ramasami Pillai was not entitled to succeed to M Picha Pillai We now come to the next contention It is that even if this be the position Ramasami Pillai was entitled to 19th share on the basis of an alleged arrangement evidenced by exhibit D 7 dated April 1 1931 This document is an affidavit which was filed by Doriappa Pillai Defendant 8 in a suit O section No 25 of 1930 filed by him for possession after partition of his 18th share on the basis of exhibit D 22 In that suit Ramasami Pillai was the second defendant exhibit P 5 is the written statement filed on his behalf in which he repudiated that he was excluded from inheritance by reason of his insanity This suit was withdrawn on April 2 1931 with the leave of the Court with liberty to bring a fresh suit exhibit D 6 In the affidavit which was filed it was stated as follows 1 Bom 2 Mad 3 Cal 4 All 509 FB 94 738 5 Excepting Defendant 9 myself and almost all the Defendants agree to give to Defendant 2 an equal share with others and thus come to some amicable arrangement between us In view of the ninth Defendant s contentions in the suit and in view of the fact that I have not prayed in this suit for a declaration of my title to the suit properties as against him I am advised that I should withdraw the present suit for partition with liberty to institute a fresh suit as I may be advised It is therefore just and necessary that I may be permitted to withdraw this suit with liberty to bring a fresh suit properly framed The Subordinate Judge held on this and the evidence of DW 2 that this family arrangement was duly proved and that Defendant 10 who was present in Court when the above statement was made did not choose to deny it The High Court rightly pointed out that the affidavit did not show the compromise as a completed fact and also did not accept the word of DW 2 The claimants who are stated to have given a share to Ramasami Pillai have not been examined The High Court also noticed that no application for transfer of the pattas was made In view of these circumstances which are all correct the appellant cannot be said to have successfully established the family arrangement and we do not consider it necessary to examine the oral evidence in the case This brings us to the last point that Ramasami Pillai was entitled to a share in the properties comprised in Sch 4 A M Picha Pillai had filed OS No 35 of 1924 against his cousins for possession of these properties The suit was decreed on September 19 1927 On October 30 1927 P Picha Pillai Defendant 7 and Serindia Pillai sent a notice exhibit P 3 informing M Picha Pillai that he could take possession of the properties covered by the decree This notice was refused and returned to the senders M Picha Pillai died soon afterwards on December 10 1927 It is contended that the properties thus remained in possession of the judgment debtors and the decree not 739 having been executed the present suit filed on October 18 1939 is barred in so far as those properties are concerned and the Devasthanam cannot get possession of them Both the Courts below have concurred in holding that M Picha Pillai must have got possession otherwise than by execution of the decree because even DW 2 not very friendly to the Devasthanam admitted that M Picha Pillai was at the time of his death in possession of all the suit properties The two Courts below also adverted to the fact that for the years Faslis 1338 and 1339 the 10th defendant paid the taxes and this would not happen if the heirs of M Picha Pillai were not in enjoyment The fact that the patta stood in the names of the original judgment debtors would not indicate anything because mutations some times lag behind change of possession In view of the fact that the two Courts below have agreed on the finding and there is evidence to support it we see no reason to interfere The question of mesne profits was not pressedand no other point having been argued we hold that the appeal has no merits It will accordingly be dismissed with costs Appeal dismissed

Rule 54 of the Mineral Concession Rules 1949 provided as follows Review Upon receipt of such application the Central Government may if it thinks fit call for the relevant records and other information from the Provincial Government and after considering any explanation that may be offered by the Provincial Government cancel the order of the Provincial Government or revise it in such manner as the Central Government may deem just and proper The appellant was granted mining leases in respect of five areas and possession was delivered to him On an application for review made by one of the respondents under r 52 of the Rules the Central Government without giving the appellant an opportunity of being heard cancelled the leases with regard to two of the areas and directed the State Government to grant leases in respect thereof to the said respondent The appellant applied to the High Court under article 226 of the Constitution for quashing the said order The Single judge who heard the application as well as the Division Bench on appeal held that the order of cancellation was an administrative order and the appellant was not entitled to a hearing It was contended on behalf of the appellant in this Court that rr 52 55 of the Rules showed that the proceeding before the Central Government was a quasijudicial proceeding and consequently the rules of natural justice must apply Held that the contention must prevail and the order of cancellation be quashed In exercising its power of review under r 54 of the Mineral Concessions Rules 1949 the Central Government acted judicially and not administratively Assuming that the act of the State Government in granting a mining lease was an administrative act it was not correct to say that no right of any kind passed to the lessee thereunder untill the review was decided by the Central Government where a review had been applied for Rule 52 therefore by giving the aggrieved party the right to a review created a lis between him and the lessee and consequently in the absence of anything to the contrary either in r 54 or the statute itself there could be no 99 776 doubt that the Central Government was acting quasi judicially under r 54 Province of Bombay vs Kushaldas section Advani 1950 SCR621 applied R vs Electricity Commissioner 1924 I K B 171 referred to

No 170 of 1959 Petition under Article 32 of the Constitution of India for enforcement of Fundamental rights 785 R V section Mani for the petitioner C K Dephtary Solicitor General of India B R L lyengar and R H Dhebar for the respondent 1960 January 20 The Judgment of the Court was delivered by IMAM J This petition was heard on January 4 1960 and we intimated that it was being dismissed and reasons for the same will follow later We proceed to give our reasons now The petitioner was detained by an order dated May 4 1959 of the Central Government under the provisions of section 3 of the hereinafter referred to as the Act The grounds of detention dated May 7 1959 were served on the petitioner His case was considered by the Advisory Board constituted by the Central Government under section 8 of the Act On the report of the Advisory Board the Central Government by its order dated June 23 1959 directed that the petitioner be detained until May 4 1960 It is against this order of detention that the present petition under article 32 of the Constitution has been filed by the petitioner The grounds of detention contained 5 grounds upon which the Central Government was satisfied that it was necessary to detain the petitioner as he was likely to act further in a manner prejudicial to the security of India and the relations of India with foreign powers It was further stated in the grounds of detention that the Central Government considered it against the public interest to disclose to the petitioner any facts or particulars as to dates persons places nature of activities and the assistance given by him other than those which had been mentioned in the grounds of detention The grounds of detention further mentioned that some of the specimen despatches sent by the petitioner and some of the reports appearing in a newspaper published in Pakistan were annexed thereto From the grounds of detention it would appear that the allegation against the petitioner was that he had been engaged in carrying on propaganda against the Government of India and the Government of the 786 State of Jammu and Kashmir established by law and against the administration of that State Government in a manner calculated to bring into hatred and contempt the Government of tile State and the Government of India that in furtherance of his propaganda the petitioner had been inter alia sending for publication in a foreign newspaper despatches of news and views relating to the State of Jammu and Kashmir containing false incomplete one sided and misleading information about the administration of the State by the Government of that State about the policy of the Government of India in relation to that State and about the conditions in India in general and in the State of Jammu and Kashmir in particular that the said despatches were published prominently by the said newspaper having a large circulation in Pakistan and other foreign countries in a manner prejudicial to India and her cause in relation to the State of Jammu and Kashmir and also prejudicial to the relations of India with foreign powers that the petitioner was in regular touch and closely associated with several persons who are hostile to the cause of India in relation to the State of Jammu and Kashmir and were engaged in activities prejudicial to the security of India and that the cumulative effect of the petitioner s aforesaid activities was prejudicial to the relations of India with foreign powers in general and particularly in regard to the cause of India in respect of the State of Jammu and Kashmir and the maintenance of public order therein We have examined the various extracts from the despatches sent by the petitioner annexed to the grounds of detention served upon him They disclose sufficient particulars to enable the petitioner to make a representation to the Advisory Board Having regard to what appears in these extracts from the despatches sent to the newspaper concerned they disclose sufficient grounds for the action taken by the Central Government in detaining the petitioner On behalf of the petitioner it was urged that the order of detention was confined only to two matters 1 that it was made with a view to preventing the 787 petitioner from acting in a manner prejudicial to the relations of India with foreign powers and 2 to the security of India As to the first matter it was argued that Pakistan not being a Foreign State there could be no question of any act of the petitioner being prejudicial to the relations of India with foreign powers It was pointed out that under article 3673 of the Constitution for the purposes of the Constitution Foreign State meant any State other than India The proviso however enabled the President subject to the provisions of any law made by Parliament by order to declare any State not to be Foreign State for such purposes as may be specified in the order Reference was made to the Constitution Declaration as to Foreign State Order 1950 hereinafter referred to as the Order made by the Governor General of India under article 3923 of the Constitution read with article 3673 The Order directed that it shall come into force at once that is to say on January 23 1950 Clause 2 of the Order states Subject to the provisions of any law made by Parliament every country within the Commonwealth is hereby declared not to be a Foreign State for the purposes of the Constitution On behalf of the petitioner it was urged that by the Order Pakistan being a member of the Commonwealth was declared not to be a Foreign State Although the Order was subject to the provisions of any law made by Parliament no law had yet been enacted by Parliament contrary to the declaration made by the Order Pakistan not being a Foreign State could not therefore be regarded as a foreign power and none of the acts of the petitioner referred to in the grounds of detention could therefore be regarded as acts prejudicial to the relations of India with foreign powers The ground in this respect being an invalid ground the order of detention must be set aside because even if one ground was an invalid ground the entire order of detention must be set aside though other grounds appeared to be valid grounds having regard to certain decisions of this Court It was also urged on behalf of the petitioner that none of the extracts of the despatches and the grounds 788 of detention disclose any word or phrase suggesting incitement to violence or subversion of the Government of the State of Jammu and Kashmir or of the Government of India Accordingly there could be no question of any act of the petitioner being prejudicial to the security of India Some other submissions were also urged on behalf of the petitioner with respect to the grounds of detention which will be dealt with in due course It was also urged that in violation of the principles of natural justice the respondent s case was heard by the Advisory Board prior to the case of the petitioner and in his absence and that copies of the further materials which were placed before the Advisory Board by the respondent were not supplied to the petitioner As already stated the contention on behalf of the petitioner has been that Pakistan is not a Foreign State and therefore cannot be regarded as a foreign power It is true that in view of the Order for the purposes of the Constitution of India Pakistan is nota Foreign State There is however a distinction between a country not being regarded as a Foreign State for the purposes of the Constitution and that country being a foreign power for other purposes The Commonwealth is an Association of Nations each of which has a sovereign status independent of each other in its internal and foreign affairs They have a sovereign status as complete as that of any nation which is not a member of the Commonwealth Each member of the Commonwealth can have diplomatic relations with each other and with nations outside the Commonwealth Indeed in the matter of sovereign status they are as independent as any nation outside the Commonwealth It follows therefore that in their relations between each other and nations outside the Commonwealth they must be regarded as foreign powers and their affairs as between them are foreign affairs In our opinion that which is not concerned with the internal affairs of a member of the Commonwealth is its external affair that is to say a foreign affair 789 Under item 9 of List 1 of the Seventh Schedule of the Constitution Parliament is empowered to enact laws with respect to preventive detention for reasons connected with defence foreign affairs or the security of India and persons subjected to such detention Under section 3 of the Act the Central Government or the State Government may if satisfied with respect to any person with a view to preventing him from acting in any manner prejudicial to the defence of India the relations of India with foreign powers or the security of India make an order directing that such person be detained if it thinks it necessary so to do The expression Foreign Affairs includes the relations of India with foreign powers The question for decision is whether Pakistan is a foreign power On a correct interpretation of the meaning of the words the relations of India with foreign powers we have no doubt that Pakistan must be regarded as a foreign power although that country may be a part of the Commonwealth as India is It has sovereignty in matters of internal administration and external relations quite independent and disconnected with the sovereignty of India or any other member of the Commonwealth in these respects Pakistan has its own diplomatic relations with various countries including India Apart from its membership of the Commonwealth the independent sovereign status of Pakistan is the same as the sovereign status of any country outside the Commonwealth It was however suggested that the Order made by the Governor General took Pakistan outside the category of a foreign power In our opinion this is a fallacious argument because article 3673 itself states that for the purposes of the Indian Constitution Foreign State means any State other than India but the President and before the commencement of the Constitution the Governor General of India under article 3923 may by order declare any State not to be a Foreign State for such purposes as may be specified in the Order In the Order the Governor General declared that every country within the Commonwealth was not a Foreign State for the purposes of the Constitution In the Constitution of India there are various Articles in which the expression 790 Foreign State appears eg article 182 3 4 article 192 article 1021d and article 1911d It is cleartherefore that under the Order for the purposes of these Articles or any other Article where the expression Foreign State appears that expression would not cover a country within the Commonwealth unless Parliament enacted otherwise The Order cannot be brought into aid for the purposes of construing the expression foreign affairs appearing in item 9 of List 1 of the Seventh Schedule and the expression foreign powers in section 3 of the Act These expressions must be construed in the ordinary way giving the words their ordinary meaning We have no doubt that Pakistan is a foreign power Under the provisions of the Act the Central Government and the State Governments could detain a person who was acting in a manner prejudicial to the relations of India with foreign powers which would include Pakistan It is to be further remembered that neither in the order of detention nor in the grounds of detention there is any mention of Pakistan specifically On the contrary in the grounds of detention it is clearly stated that the cumulative effect of the petitioner s activities was prejudicial to the relations of India with foreign powers in general vide grounds 3 and 4 The grounds of detention refer to the publication in a foreign newspaper of despatches of news and views relating to the State of Jammu and Kashmir containing false incomplete one sided and misleading information and about the policy of the Government of India in relation to that State The extracts of the despatches sent by the petitioner to the foreign newspaper annexed to the grounds of detention show that they are not only prejudicial to the Government of India vis a vis Pakistan but they are prejudicial to the relations of India with foreign powers in general the subject of the affairs of the State of Jammu and Kashmir not being a matter of interest solely to Pakistan but also of interest to other foreign powers Coming now to objections made as to the grounds of detention regarding ground No 1 it was urged that this ground was outside the scope of the order of 791 detention This ground mentions that the petitioner is engaged in carrying on propaganda against the Government of India and the Government of the State of Jammu and Kashmir in such a manner as to bring these two Governments into hatred and contempt In our opinion it cannot be said that this ground is beyond the scope of the order of detention because the bringing of the Government of India and the Government of the State of Jammu and Kashmir into hatred and contempt does involve the security of India Regarding ground No 2 it was urged that it does not disclose a single suggestion about the subversive activities of the petitioner nor does it disclose what portions of the despatches were false incomplete misleading or one sided It was further pointed out that this ground speaks of the conditions in India in general and the policy of the Government of India in relation to the State of Jammu and Kashmir What the policy of the Government of India is concerning that State is not stated All these allegations were so vague that they gave no real opportunity to the petitioner to make a representation Similarly concerning grounds 3 and 4 it was urged that the grounds did not disclose what was the cause of India in relation to the State of Jammu and Kashmir Here again sufficient particulars were not given to enable the petitioner to make an effective representation to the Advisory Board In our opinion none of these contentions has any substance because with the grounds of detention were annexed extracts from the despatches sent by the petitioner to the newspaper Dawn published in Pakistan These extracts gave sufficient particulars to enable the petitioner to make a represen tation with respect to all matters stated in the grounds of detention Coming now to the submission that the respondent s case was heard before the petitioner s case and in his absence and that copies of further materials placed before the Advisory Board by the respondent were not supplied to the petitioner it is necessary to refer to the procedure to be adopted by the Advisory Board under 101 792 the provisions of the Act Under section 9 in every case where a detention order has been made the appropriate Government must within 30 days from the date of detention place before the Advisory Board the grounds on which the order has been made and the representation if any made by the detenus and in a case where an order has been made by an officer also the report by such officer under sub section 3 of section 3 Section 10 sets out the procedure which the Advisory Board must follow when reference has been made to it under section 9 Section 101 states The Advisory Board shall after considering the materials placed before it and after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned and if in any particular case it considers it essential so to do or if the person concerned desires to be heard after hearing him in person submit its report to the appropriate Government within ten weeks from the date of detention It is clear from these provisions that the Advisory Board after considering the materials placed before it under section 9 can call for further information from the appropriate Government and that thereafter if in any particular case it considers it essential so to do or if the detenue desires to be heard after hearing him submit its report to the appropriate Government In such a situation the Advisory Board must of necessity obtain further information from the appropriate Government before it hears the detenue In our opinion there is nothing in section 10 which offends against the principles of natural justice Furthermore the petition does not assert as a matter of fact that the respondent s case was heard in the absence of the petitioner Indeed the respondent s affidavit does not admit that any such thing happened As for the copies of the further materials placed by the respondent before the Advisory Board not being supplied to the petitioner it has to be observed that in paragraph 3 of the grounds of detention it was 793 clearly stated that the Central Government considered it against public interest to disclose to the petitioner any facts or particulars as to dates persons places nature of activities and the assistance given by him other than those which had already been mentioned in the grounds of detention Under article 226 of the Constitution it is clearly stated that nothing in cl 5 of that Article shall require the authority making an order of detention to disclose facts which such authority considers to be against public interest to be disclosed In the present case the authority concerned had declined to disclose in the public interest any facts or particulars as to dates persons places nature of activities and the assistance given by the petitioner other than those which had already been mentioned in the grounds of detention In such circumstances it would have been entirely inappropriate for the respondent to supply copies of the further materials placed before the Advisory Board although the Advisory Board may have required further information in order to satisfy itself The petition is accordingly dismissed Petition dismissed

The confession of an accused person against a co accused is not evidence in the ordinary sense of the term It does not come within the meaning of evidence contained in sec 3 of the Indian Evidence Act inasmuch as it is not required to be given on oath nor in the presence of the accused and cannot be tested by cross examination It is a much weaker type of evidence than the evidence of an approver which is not subject to any of these infirmities Such a confession can only be used to tend assurance to other evidence against a co accused The proper way to approach a case of this kind is first to marshal the evidence against the accused excluding the confession alto gether from consideration and see whether if it is be lieved a conviction could safely be based on it If it is capable of belief independently of the confession then it is not necessary to call the confession in aid But cases may arise where the judge is not prepared to act on the other evidence as it stands even though if believed it would be sufficient to sustain a conviction In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify him self in believing what without the aid of the confession he would not be prepared to accept Bhuboni Sahu vs The King 76 IA 147 relied upon Emperor vs Lalit Mohan Chuckerbutty at 588 and In re Periyaswami Moopan ILR referred to A conviction can be based on the uncorroborated testimo ny of an accomplice provided the judge has the rule of caution which experience dictates in mind Rameshwar vs State of Rajasthan referred to The rule of caution is that save in exceptional circum stances one accomplice cannot be used to corroborate anoth er nor can he be used to corroborate a person who though not an accomplice is no more reliable than one It is not proper or desirable for the prosecution to examine as a witness the magistrate who recorded the confes sion 527

ppeal No 147 of 1956 Appeal from the judgment and decree dated August 7 1952 of the Madras High Court in A section No 809 of 1947 arising out of the judgment and decree dated October 31 1947 of the Sub Judge Tenali in 0 section No 64 of 1944 K R Chaudri T section Venkataraman and K B Sharma for the appellants N Subramanyam and T Satyanarayana for the respondent January 15 The Judgment of the Court was delivered by KAPUR J This is an appeal against the judgment and decree of the High Court of Madras varying the decree of the trial court The appellants were the defendants in the trial court and the respondent was the plaintiff who was represented by the sole trustee appointed by the Hindu Religious Endowment Board The suit was brought by the deity through the sole trustee for recovery of Rs 3480 towards the arrears of income of the property in trust for the years 1942 44 and for a direction for future payment at the rate of 160 bags of paddy per year or its equivalent ie Rs 1680 The plaintiff alleged that the property in dispute constituted a specific endowment for Kalyanotsavam of the deity and that the defendants who were trustees had committed default in carrying out the purpose of the trust The prayer was for a decree for the recovery of expenses of Kalyanotsavam and of the feeding charges The defence raised was 98 770 that the inam was a personal grant for driving the car of the deity on the festival days and that it was not a specific trust or an endowment for the benefit of the idol In other words it was a grant of the inam burdened with service to the god There were other pleas raised in regard to jurisdiction res judicata and adverse possession The trial court held that the grant was a specific endowment for the Kalyanotsavam of the deity but the appellants were not bound to spend the whole income of the lands for the purpose It decreed a sum of Rs 200 per year as adequate provision for the performance of the service of Kalyanotsavam The other pleas raised were decided against the appellants In the High Court the only point argued was regarding the nature of the grant and as in the opinion of that court a general trustee could not call upon a specific trustee to pay any money except on the ground of expending that amount and there was no proof of this expenditure the prayer as contained in the plaint was not granted and the High Court was also of the opinion that as all the facts had been pleaded and there were no new facts to be alleged and the parties were alive to the real nature of the dispute and had even the issues framed on that very question it allowed the plaint to be amended by the addition of the prayer for a declaration that the properties in the schedule and the income thereof formed a specific endowment for the due performance of the services of Kalyanotsavam of the deity and feeding charges and other expenses incidental thereto and the appellants were therefore liable to pay the entire income It was also of the opinion that all the available evidence had been adduced by both the parties and that the prayer for declaration was only a formal relief which flowed from the allegations in the plaint It neither involved a change of the cause of action nor did it require a fresh trail and therefore the petition for amendment was allowed by the addition of the prayer stated above In this appeal counsel for the appellant has raised hreet points 1 that the suit wag not maintainable 771 2that the amendment should not have been allowed and 3 the grant was a personal grant to the appellants burdened with the provision for service and it was not a specific endowment As far as the first question is concerned it has not been shown as to how the suit was not maintainable The question of amendment in our opinion was rightly decided by the High Court As held by that court all the necessary allegations had been made in the plaint and the requisite pleas had been raised by the appellants an issue was framed on the question and the parties were fully cognizant of the points in controversy and the necessary evidence was led by the parties In this view of the matter the High Court was right in allowing the amendment by the addition of a prayer in the prayer clause We then come to the question of the nature of grant which on a consideration of the documentary evidence and other evidence has been found by both the courts below to be a specific endowment for Kalyanotsavam This finding was challenged by the appellant For that purpose it is necessary to consider the inam papers which form the main and basic documentary evidence by the appellant Inam registers have always been treated as evidence of the utmost importance The first document to be considered is of the year 1859 60 which is a copy of the inam statement made by N Buchayya the ancestor of the present appellants Column 1 of this document shows the names of the inamdars and the enjoyers to be N Buchayya the present enjoyment is towards the Kalyanotsavam of the deity Columns 4 5 give the residence and name of the original inamdars In Column 5 are given the particulars of the family of the then enjoyers and the entry is for the deity s Kalyanotsavam In Column 6 is given the name of the grantor who gave the land to the grantee and with the income therefrom he has been performing Sri Swami Varu s Kalyanotsavam from that time Columns 7 9 give the extent of the land In Column 11 particulars relating to the present enjoyment are to be given and the entry was Sri Swami Varu s 772 Kalyanotsavam In Column 12 it was shown that the grant was revenue free and the land was under the cultivation of Buchayya the income of which was Rs 11 per annum The entries show that the inam was granted as a specific endowment for the Kalyanotsavam of the deity and the amount was spent in the services of the deity The next document to be considered is a copy of the inam fair register of May 16 1860 The High Court finding that some of the entries in that document were not clear sent for the original register from the Collector s office and it was found that some of the entries were not in the original at all In Column 8 the words driving the car were not to be found and the remarks in Column 12 to the effect that the purpose for which the inam was granted is not stated were not in the original register In Column 2 of this document the general class to which the inam belonged is shown as religious endowment Column 8 relates to the description of the inam and the entry is For service in the pagoda The service is performed Columns 9 11 relate to tenure Column 12 has already been discussed In Column 9 it is shown as free of tax In Column 13 the name of the original grantee is shown to be the ancestor of the appellants In Column 15 the entry is In fasli 1223 Viresalingam 0 8 8 In fasli 1236 Nanduri Vissanna Buchayya for service during the festival of the pagoda 0 8 O In Column 21 the entry contains the following To be confirmed and continued so long as the service is performed In fasli 1216 the inamdar is entered as village servant but it is ascertained and is entered in fasli 1256 that service is performed from a long time in the pagoda In Column 22 it is stated confirmed and below that is given the number of the title deed to be TD 243 From these documents and from the fact that neither the sanad nor the inam title deed was produced and taking into consideration some admissions of the predecessors of the appellants where it was admitted that they were dharmakartas of the Kalyanotsavam and had been performing that service the High Court came to the conclusion that the inam 773 lands in dispute were endowed for Kalyanotsavam and other purposes incidental thereto and constituted a specific trust and the appellants were trustees thereof It was urged by counsel for that appellants that the words in the inam register that the grant was tocontinue as long as the service is performed were indicative of the fact that the grant was not to the deity but to them individually with the added obligation of spending from out of the income on the particular service to the deity A combined reading of the two documents ie statement of the ancestor of the appellants and the inam register shows that the grant was a specific endowment and that the lands were endowed for the purpose of Kalyanotsavam and for other purposes incidental thereto and constituted a specific trust The courts below have found this to be the nature of the trust and even if two inferences were possible from the reading of these two documents there is no reason why the view taken by the courts below should be interfered with particularly when there are admissions by the predecessors of the appellants which support the view of the courts below Besides those words do not necessarily mean that the grant was to the individual with the added obligation to spend on the performance of service In the present case it is not stated in the inam fair register that the grant was to be confirmed in favour of Buchayya and continue so long as the service was performed This kind of language used in inam registers has been discussed in some decided cases in the Madras High Court eg Hindu Religious Endowments Madras vs Thadikonda Koteswara Rao1 where this distinction Was prominently brought out between the words to be confirmed so long as the service is performed and to be confirmed to the party so long as he continues the performance of the services The latter was held to be a personal grant and the former was not so held We are therefore of the opinion that the finding of the High Court that the grant was a specific endowment for Kalyanotsavam of the deity and therefore a specific trust and not a grant to the appellant with 1 774 the added obligation of spending on the service must be accepted to be correct The next question for decision is as to what portion of the income of the inam lands is to be expended on the service to the deity The courts below are not in accord on this point The trial court held that Rs 200 out of the income should be adequate for the purpose and the High Court applied Cy Pres doctrine and held the whole income to be for the deity even though it exceeded the expenditure for the particular service One of the facts which emerges from the inam register is that when the grant was made the specific charitable payments exhausted the income of the property and it is a fair inference to draw therefrom that the intention was to devote the whole income to charity and any subsequent increase in the value of the property accrues to the charity Hindu Religious Endowments vs Thadikonda Kotesuwararao 1 Tudor on Charities 5 Ed p 164 Laws of England Vol 4 para 624 p 303 The High Court was therefore justified in holding that the whole of the income was to go to deity thus varying the judgment of the trial court that only a portion of it was to be so employed The High Court applied Cy pres doctrine relying on N Sankaranarayana Pillayan Ors vs The Board of Commissioners for Hindu Religious Endowments Madras 2 It was there held that where the grant is to the deity and the income is ear marked for the services for which the specific endowment is created if there is a surplus which cannot be spent on these services it would be a case for the application of the Cy pres doctrine Taking into consideration that originally the inam income was only Rs 11 the whole of which was to be and was expended on the service of deity ie Kalyanotsavam and considering the nature of the grant the High Court has rightly applied Cy pres doctrine We are therefore of the opinion that the judgment of the High Court was right and we dismiss this appeal with costs Appeal dismissed 1 2 1947 LR 74 IA 230

A Hindu was found to be a lunatic when succession opened It was claimed that under the texts lunacy must be congenital to exclude from inheritance Held under the Hindu law lunacy as distinct from idiocy need not be congenital to exclude from inheritance if it existed when succession opened Muthusami vs Meenammal Wooma Parshad Roy vs Grish Chunker Prochundo Cal 639 and Deo Kishen vs Budh Prakash All 509 FBapproved Murarji Gokuldas vs Parvatibai Bom 177 and Sanku vs Puttamma Mad 289 disapproved

ion No 38 of 1959 Petition under article 32 of the Constitution ofIndia for enforcement of Fundamental Rights Purshottam Tricumdas and 1 N Shroff for the Petitioner A V Viswanatha Sastri R Ganapathi Iyer and R H Dhebar for the respondents N A Palkhivala and I N Shroff for Interveners Nos 1 to 3 The Bombay Chamber of Commerce Industry Bombay and others C K Daphtary Solicitor General of India and TM Sen for intervener No 4 Attorney General for India January 25 The material facts are not in dispute and they may be briefly stated The petitioner is a private company within the meaning of the and has its registered office at Kasturi Buildings Bombay 1 on March 24 1954 and April 15 1954 into two contracts with the Government of India for selling to the latter two consignements of sugar one of 9500 Long Tons of sugar of Peruvian orgin and the other of 25000 metrice Tons of sugar of continental origin To fulfil the terms of the contracts the petitioner placed order with dealers in foreign countries The following are the particulars relating to the first contract dated 854 March 24 1954 for the supply of 9500 Long Tons of sugar i 3rd April Letter of Credit opened by the petitioner ii 3rd May 1954 section section Alba sails from Salaverry Peru carrying 978201688 Long Tons of sugar iii 26th May 1954 The petitioner delivered to its Bankers the Central Bank ofIndia Limited Bombay along with the invoice for Rs 5035 405 11 0 the Documents of Title viz the Bills of Lading duly endorsed in favour of the Government of India Ministry of Food Agriculture Agriculture to the above goods together with other papers such as Certificates and instructed the said Bankers to present the same to the Government of India and to collect the said amount of Rs 5035405 11 0 from the Deputy Accountant General Food RehabilitationNew Delhi iv 7th June 1954 Payment made to petitioner s Bankers by the Government ofIndia against delivery of Invoice and Bills of Lading v 26 th June 1954 Date of arrival of section section Alba at Bombay harbour The corresponding details pertaining to the second contract are as follows Vessel Vessel vassel section section Eleni section section section section Inger Stathatos Giovanni Marie Amendola I II 1 9910 858 9919 7158 4464 3I5 Total 24292 8888 Tons Tons Tons ii 56th 56th 156th Letter of Credit opened June 954 June 1954 June 1954 by petitioner iii 10th 31st July 31st July Date of Sailing of vessel July 954 1954 1954 855 Vessel Vessel Vessel section section Eleni section section section section Inger Stathatos Giovanni Marie Amendola 1V 22nd 12th August16th AugustJuly 1954 1954 1954 The petitioner delivered to its Bankers the Bank of Baroda Limited Bombay along with its invoices for Rs 50435o1 8 o Rs 22 69800 13 0 Rs 5038 997 14 o respectively the Documents of Title viz the Bills of Lacling duly endorsed in favour of the Government of India Ministry of Food Agriculture Agriculture to the above goods together with other papers such as Certificates and instructed the said Bankers to present the same to the Government of India and collect the said amounts of Rs 5043 501 8 0 Rs 2269 800 13 o and Rs 5038 997 14 0 from the Deputy Accountant General Food Rehabilitation New Delhi V26th 18th August 19th August Payment made to the July 1954 petitioner s Bankers by the Government of India against delivery of Invoices and Bills of Lading V112th 3rd Septem 9th Septem August 1954 Date of arrival of Vessel at Bombay Harbour The foregoing particulars disclose that some weeks before the vessel arrived at the Bombay harbour ie when the vessels were on the high seas the Government of India received the documents of title including bills of lading pertaining to the sugar purchased by them and paid the price to the petitioner Indeed after the goods reached the port they were unloaded taken delivery of and cleared by the Government of 109 856 India after paying the requisite customs duties to the authorities concerned For the assessment year 1954 55 ie April 1 1954 to March 31 1955 the petitioner was assessed to sales tax by the Sales Tax Officer Licence Circle Division 1 Bombay In calculating the turn over of the petitioner the Sales Tax Officer deducted the price of the said two sales from the petitioner s turn over On January 31 1958 the first respondent the Assistant Collector of Sales Tax issued a notice to the petitioner under section 31 of the Act proposing to review the said assessment order passed by the Sales Tax Officer In due course the petitioner filed objections and made his representations The petitioner contended before the first respondent that the notice should have been issued if at all under section 15 and not under section 31 of the Act inasmuch as the sales had been disclosed to the Sales Tax Officer and the deduction of the same had been allowed by him it was also pleaded that in any event the sales had taken place in the course of import and therefore they were not liable to sales tax The first respondent rejected both the contentions and held that sales tax was payable in respect of the said two transactions He reassessed the petitioner to a total amount of sales tax and general tax of Rs1022850 12 0 less Rs 315 3 0 already paid by the petitioner ie a sum of Rs 1022535 9 0 and directed the second respondent the Sales Tax Officer to issue a notice of demand for the said amount Pursuant to that order the second respondent issued a notice dated February 14 1959 The petitioner has filed the present petition for the issue of a writ of certiorari cancelling the demand notice issued by the second respondent The learned Solicitor General intervened on behalf of the Union Government and Mr Palkbivala intervened for interveners 1 to 3 and both of them supported the petitioner Mr Purshottam Tricumdas appearing for the petitioner raised before us the following contentions 1 Under article 2861b of the Constitution as it stood before the Constitution Sixth Amendment Act 1956 the sales in question were not liable to sales tax inasmuch as they took place in the course of import of the 857 goods into the territory of India 2 the said sales were exempted from sales tax by the Bombay State under the explanation to article 2861 of the Constitution as the goods were delivered for the purpose of consumption in States other than Bombay 3 the sales were effected outside the State of Bombay ie New Delhi and therefore they were also exempted under article 2861a of the Constitution and 4 the first respondent could have only interfered with the earlier order of assessment under section 15 of the Act within three years from the end of the assessment year 1954 55 ie March 31 1955 and that the said period having elapsed he had no power to interfere in revision under section 31 of the Act The first point is the most substantial one in the case and if the petitioner succeeds on that point no other question would arise for consideration The first question turns upon the interpretation of article 2861b of the Constitution before it was amended by the Constitution Sixth Amendment Act 1956 The said Article read 1 No law of a State shall impose or authorise the imposition of a tax on the sale or purchase of goods where such sale or purchase takes place b in the course of the import of goods into or export of the goods out of the territory of India Under this Article if the sales by the petitioner to the Government of India took place in the course of the import of the goods into the territory of India the Bombay State would have no power to impose sales tax on the said sales What does the phrase in the course of the import of the goods into the territory of India convey The crucial words of the phrase are import and in the course of The term import signifies etymologically to bring in To import goods into the territory of India therefore means to bring into the territory of India goods from abroad The words course means it progress from point to point The course of import therefore starts from one point and ends at another It starts when the goods cross the customs barrier in foreign country and ends when they cross the customs 858 barrier in the importing country These words were subject of judicial scrutiny by this Court in State of Travancore Cochin vs Shunmugha Vilas Cashew Nut Factory1 Construing these words Patanjali Sastri CJ observed at p 62 The word course etymologically denotes movement from one point to another and the expression in the course of not only implies a period of time during which the movement is in progress but postulates also a connected relation As regards the limits of the course the learned Chief Justice observed at p 68 It would seem therefore logical to hold that the course or the export out of or of the import into the territory of India does not commence or terminate until the goods cross the customs barrier Das J as he then was in his dissenting judgment practically agreed with Patanjali Sastri C J on the interpretation of the said words The learned Judge expressed his view at p 92 thus The word course conveys to my mind the idea of a gradual and continuous flow an advance a journey a passage or progress from one place to another Etymologically it means and implies motion a forward movement The phrase in the course of clearly has reference to a period of time during which the movement is in progress Therefore the words in the course of the import of the goods into and the export of the goods out of the territory of India obviously cover the period of time during which the goods are on their import or export journey We respectfully agree with the aforesaid observations of the learned Judges The course of the import of the goods may be said to begin when the goods enter their import journey ie when they cross the customs barrier of the foreign country and end when they cross the customs barrier of the importing country The next question is when can it be said that a sale takes place in the course of import journey This Court in State of Travancore Cochin vs The Bombay Co Ltd 2 held that a sale which occasioned 1 2 859 the export was a sale that took place in the course of export of the goods If A a merchant in India sells his goods to a merchant in London and puts through the transaction by transporting the goods by a ship to London the said sale which occasioned the export is exempted under article 2861b of the Constitution from the levy of sales tax The same principle applies to a converse case of goods which occasioned the import of the goods into India This Court again in State of Travancore Cochin vs Shanmugha Vilas Cashew Nut Factory 1 extended the doctrine to a case of sale or a purchase of goods effected within the State by transfer of shipping documents while the goods were in the course of transit The decision dealt with three types of purchases viz i purchases made in the local market ii purchases made in the neighbouring districts of an adjacent State and iii imports from Africa The imports from Africa consisted of two groups one group consisted of goods that were purchased when they were on the high seas and shipped from the African ports to Cochin or Quilon we are not concerned with the other group In the said case some commission agents at Bombay arranged for the purchase on behalf of the assessee got delivery of the shipping documents at Bombay through a bank which advanced money against the shipping documents and collected the same from the assessees at destination This Court by a majority held that in respect of the purchases falling under the first group of imports the commission agents acted merely as agents of the respondents therein and that the said purchases occasioned the import and therefore came within the exemption That was not a case where the goods were sold by an importer in India to a third party when the goods were on the high seas It was a case where a party in Cochin purchased goods which were on the high seas through his agent at Bombay and the agent paid the price through a bank against the shipping documents But the learned Judge Patanjali Sastri C J expressing the majority view considered the scope of the exemption in all its aspects and summarized the conclusions thus at p 69 1 860 Our conclusions may be summed up as follows 1 Sales by export and purchases by import fall within the exemption under article 2861b 2 Purchases in the State by the exporter for the purpose of export as well as sales in the State by the importer after the goods have crossed the customs barrier are not within the exemption 3 Sales in the State by the exporter or importer by transfer of shipping documents while the goods are beyond the customs barrier are within the exemption assuming that the State power of taxation extends to such transactions Das J as he then was in his dissenting judgment agreed with Patanjali Sastri C J on the third conclusion with which we are now concerned The learned Judge put forward his view at p 94 thus Such sales or purchases by delivery of shipping documents while the goods are on the high seas on their import journey were and are well recognized species of transactions done every day on a large scale in big commercial towns like Bombay and Calcutta and are indeed the necessary and concomitant incidents of foreign trade To hold that these sales or purchases do not take place in the course of import or export but are to be regarded as purely ordinary local or home transactions distinct from foreign trade is to ignore the realities of the situation Such a construction will permit the imposition of tax by a State over and above the customs duty or export duty levied by Parliament Such double taxation on the same lot of goods will increase the price of the goods and in the case of export may prevent the exporters from competing in the world market and in the case of import will put a greater burden on the consumers This will eventually hamper and prejudically affect our foreign trade and will bring about precisely that calamity which it is the intention and purpose of our Constitution to prevent The learned Judge also in his judgment elaborately considered the great hardship that would be caused to an Indian importer if he was not permitted to sell the goods which were on the high sear by delivery of 861 shipping documents against payment Though that case dealt with a different situation we agree with the learned Judge s observations that an importer can if he receives the shipping documents transfer the property in the goods when they are on the high seas to a third party by delivering to him shipping documents against payment and such a sale is one made in the course of import The legal position vis a vis the import sale can be summarized thus 1 The course of import of goods starts at a point when the goods cross the customs barrier of the foreign country and ends at a point in the importing country after the goods cross the customs barrier 2 the sale which occasions the import is a sale in the course of import 3 a purchase by an importer of goods when they are on the high seas by payment against shipping documents is also a purchase in the course of import and 4 a sale by an importer of goods after the property in the goods passed to him either after the receipt of the documents of title against payment or otherwise to a third party by a similar process is also a sale in the course of import The next question is whether the sales by the petitioner to the Government of India are sales in the course of import From the facts narrated supra it is seen that the petitioner pursuant to the earlier contracts entered into with the Government of India delivered the shipping documents including the bill of lading to the Government against payment when the goods were on the high seas In view of the foregoing discussion it should be held that the sales fall under the fourth principle and therefore they were sales that took place in the course of import of the goods into India A bill of lading is a writing signed on behalf of the owner of the ship in which goods are embarked acknowledging the receipt of the goods and undertaking to deliver them at the end of the voyage subject to such conditions as may be mentioned in the bill of lading It is well settled in commercial world that a bill of lading represents the goods and the transfer of it operates as a transfer of the goods The legal effect of the transfer of a bill of 862 lading has been enunciated by Bowen LJ in Sanders Brothers vs Madan Co 1 thus at p 341 The law as to the indorsement of bills of lading is as clear as in my opinion the practice of all European merchants is thoroughly understood A cargo at sea while in the hands of the carrier is necessarily incapable of physical delivery During this period of transit and voyage the bill of lading by the law merchant is universally recognised as its symbol and the indorsement and delivery of the bill of lading operates as a symbolical delivery of cargo Property in the goods passes by such indorsement and delivery of the bill of lading whenever it is the intention of the parties that the property should pass just as under similar circumstances the property would pass by an actual delivery of the goods And for the purpose of passing such property in the goods and completing the title of the indorsee to full possession thereof the bill of lading until complete delivery of the cargo has been made on shore to some one rightfully claiming under it remains in force as a symbol and carries with it not only the full ownership of the goods but also all rights created by the contract of carriage between the shipper and the shipowner It is a key which in the hands of a rightfull owner is intended to unlock the door of the warehouse floating or fixed in which the goods may chance to be We have quoted the passage in extenso as it clearly and fully states the law on the subject It is not disputed that the law in India is also similar to that in England The delivery of the bill of lading while the goods are afloat is equivalent to the delivery of the goods themselves The learned counsel concedes that ordinarily that will be so but contends that in the present case the contract clearly indicates that the intention of the parties was that till actual delivery was made the property in the goods would not pass to the buyer Both the contracts are similar in terms and they follow the standard terms pres cribed by the Government The main terms of the contracts may be summarized thus 1 863 The first clause defines the term sellers to mean the party selling the sugar and the term the Government to mean the President of India Clause 2 prescribes that suitable gunny bags approved by the Government should be used for importing sugar Clause 3 provides for inspection of quality weight and packing of sugar by the Government at the time of shipment Clause 4 says that sugar shall be shipped to particular ports Clause 5 compels the sellers to engage steamers on charter terms empowers the Government to take delivery of the goods at the port of discharge from the ship s rail and imposes the burden on the sellers to meet the expenses of stevedoring lighterage where necessary hiring of cranes dock dues and pilotage Clause 6 deals with the mode of payment for supplies made under that clause the sellers are to submit a bill for full payment of cost and freight value to the Government in the Ministry of Food and Agriculture New Delhi duly supported by a complete set of clean on board bills of lading consisting of three negotiable and three non negotiable copies a certificate of origin of sugar a certificate of quality weight and packing a certificate from the ship owners that the freight has been paid in full and that the ship owners retain no lien whatsoever on the cargo on that account Under clause 6 c letter of credit shall be opened by the sellers at their cost and the Government of India agree to arrange for the foreign exchange as necessary to the extent of the cost and freight value of the quantity of sugar purchased on the production of an import licence which will be issued on application to the proper authority on their prescribed form Clause 8 confers on the Government a right in the event of the sellers failure to supply the sugar in accordance with the terms of the contract to recover any sum as liquidated damages andor by way of penalty upto a prescribed amount Clause 9 authorizes the Government in the event of the sellers failing to observe or perform any provisions of the contract to terminate the contract forthwith Clause II under the heading Force Majeure confers on the Government in case delivery in whole or in part is prevented or delayed directly 110 864 or indirectly by any cause of Force Majeure war strikes rebellion insurrection political disturbances civil commotion fire or flood on account of plague or other epidemics the right to cancel the contract for the quantities so prevented or delayed After the sellers entered into the contracts they obtained the requisite licences from the Government opened letters of credit placed orders with foreign companies engaged a steamer on charter terms took delivery of the goods from the foreign firms and when the goods were on the high seas delivered the documents of title to the Central Government against payment and the said Government taking the licence from the sellers cleared the goods at the Bombay harbour Let us now scrutinize the terms of the contract to ascertain whether they disclose any intention of the parties that notwithstanding the delivery of the bill of lading against payment the property in the goods should not pass to the Government The circumstances under which the contracts were entered into between the parties indicate that both the parties were interested to see that property in the goods passed in the ordinary way when the shipping documents were handed over to the Government against payment The sellers had to meet their liability to the foreign companies with whom they opened letters of credit and the Government must have been anxious to get the title to the goods so that the sellers might not divert the goods towards their other commitments or to other buyers for more tempting prices Under the contract every safeguard for securing the goods of agreed specifications was provided for in the earlier clauses and therefore there was no reason for postponing the passing of the property in the goods to the buyer till the goods were actually delivered in the port The sellers on their side would have been anxious that the property should pass when the goods were on the high seas for otherwise they would be compelled to pay sales tax Nor are the clauses of the contracts relied upon by the respondents inconsistent with the property in the goods passing in accordance with the mercantile usage The liability undertaken by the sellers to meet the expenses relating 865 to stevedorage lighterage where necessary hiring of cranes dock dues and pilotage at the time of delivery of the goods on which reliance is placed to indicate a contrary intention in our view has nothing to do with the question raised for that liability can rest with the sellers even after the property in the goods has passed to the buyers nor clauses 9 to 11 on which strong reliance is placed by the learned counsel are inconsistent with the property in the goods passing to the buyer they could legitimately be made applicable to a point of time when the property in the goods has not passed to the buyer If the sellers fail to observe the performance of any provisions of the contracts before the property in the goods passed to the buyer under clause 9 of the contracts the buyer can cancel the contract So too under cl II if any contemplated mishap takes place on the high seas by force majeure the seller shall send a cablegram to that effect and the buyer is empowered to cancel the whole of the contract or a part of it This also applies to a point of time before the property in the goods has passed to the buyer If on the other hand the seller delivers the shipping documents against payment and thereafter if he does not deliver the goods at the port the buyer may have other remedies for the recovery of damages etc But that right is not covered by either cl 9 or el II of the contract A scrutiny of all the terms of the contract does not indicate the intention that the property in the goods shall not pass to the buyer notwithstanding delivery of shipping documents against payment Apart from the terms of the contract reliance is also placed by the learned counsel for the respondents on the following circumstances i the seller himself chartered the ship and ii the licence issued by the Government was made non transferable We do not see how these two facts indicate the contrary intention If the seller himself chartered a steamer when the goods he purchased were loaded in the ship the property in the goods passed to him and therefore he was in a position to sell the same to the Government The fact that the licence was non transferable has no relation to the property in the goods passing 866 to the Government The licence issued by the Govern ment is an exercise of the statutory power under the relevant Act Whether the petitioner sold the goods to the Government or to a third party he had to obtain a licence Indeed in the present case the licence was given to the seller with the express object of fulfilling the contracts with the Government and was issued several days after the contracts were executed and indeed the Government took the licence from the seller and cleared the goods through their officer For all the foregoing reasons we hold that the property in the goods passed to the Government of India when the shipping documents were delivered to them against payment It follows that the sale of the goods by the petitioner to the Government of India took place when the goods were on the high seas That being so the sales in question must be held to have taken place in the course of the import into India and therefore they would be exempted from sales tax under article 2861b of the Constitution In this view no other question would arise for consideration ln the result the order of the Assistant Collector of Sales Tax is set aside and that of the Sales Tax Officer is restored The respondents will pay the costs of the petitioner Petition allowed

The petitioner was detained by an order of the Central Government under section 3 of the The Advisory Board which considered the petitioner s case in accordance with the provisions of the Act did not recommend that the order of detention should be withdrawn The allegations against the petitioner were that he was carrying on propaganda of hatred and contempt against the Government of India and the State of Jammu and Kashmir by sending for publication in a widely published foreign Newspaper false one sided and misleading information about the administration of the State and the condition of India in general and the said State in particular The petitioner s contentions inter alia were that being a member of the Commonwealth Pakistan where the newspaper was published was not a Foreign State and could not therfore be regarded as a Foreign power that the principles of natural justice where violated by the Advisory Board in considering the respondent s case in his absence and that materials placed before the Advisory Board were not supplied to him Held that on a correct interpretation of the expression foreign affairs appearing in Item 9 List 1 Seventh Schedule of the Constitution and the words the relations of India with foreign powers in section 3 Of the Act Pakistan must be regarded as a foreign power although that country might be a member of the Commonwealth like India Under article 367 3 a country might not be regarded as a Foreign State for the purposes of the Constitution but that country might be a foreign power for other purposes The Commonwealth is an Association of Nations each having a sovereign status independent of the other in its internal and foreign affairs The provisions of section 10 of the Act did not offend against the principles of natural justice and the procedure adopted by the Advisory Board in the present case was not in Contravention thereof

ION Criminal Appeal No 76 of 1956 Appeal from the judgment and order dated August 27 1954 of the Allahabad High Court in Criminal Misc Writ No 20 of 1954 823 K L Misra Advocate General for the State of Uttar Pradesh Mathur and C P Lal for the appellants N section Bindra for the respondent1960 January 21 The Judgment of the Court was delivered by SUBBA RAO J This appeal raises the question of interpretation of the words in the interest of public order in article 192 of the Constitution The facts are not in dispute and they lie in a small compass The respondent Dr Ram Manohar Lohia is the General Secretary of the Socialist Party of India The U P Government enhanced the irrigation rates for water supplied from canals to cultivators The party to which the respondent belongs resolved to start an agitation against the said enhancement for the alleged reason that it placed an unbearable burden upon the cultivators Pursuant to the policy of his party the respondent visited Farrukhabad and addressed two public meetings wherein he made speeches instigating the audience not to pay enhanced irrigation rates to the Government On July 4 1954 at 10 pm he was arrested and produced before the City Magistrate Farrukhabad who remanded him for two days After investigation the Station officer Kaimganj filed a charge sheet against the respondent before Sri P R Gupta a Judicial Officer at Farrukliabad On July 6 1954 the Magistrate went to the jail to try the case against the respondent but the latter took objection to the trial being held in the jail premises When the Magistrate insisted upon proceeding with the trial the respondent obtained an adjournment on the ground that he would like to move the High Court for transfer of the case from the file of the said Magistrate Thereafter the respondent filed a petition before the High Court for a writ of habeas corpus on the ground among others that section 3 of the U P Special Powers Act Act No XIV of 1932 1932 hereinafter called the Act was void under the Constitution 105 824 In the first instance the petition came up for disposal before a division bench of the High Court at Allahabad consisting of Desai and Chaturvedi Elaborate arguments were addressed before them covering a wide field The learned Judges delivered differing judgments expressing their views on the main points raised before them They referred the matter to the Chief Justice for obtaining the opinion of a third Judge on the following two points i Was the provision of section 3 of the U P Special Powers Act of 1932 making it penal for a person by spoken words to instigate class of persons not to pay dues recoverable as arrears of land revenue inconsistent with article 191a of the Constitution on the 26th of January 1950 and ii if so was it in the interests of public order The petition was placed before Agarwala J as a third Judge who agreeing with Desai J gave the following answers to the questions referred to him Question No i The provision of section s of the U P Special Powers Act 1932 making it penal for a person by spoken words to instigate a class of persons not to pay dues recoverable as arrears of land revenue was inconsistent with Article 191a of the Constitution on the 26th January 1950 Question No ii The restrictions imposed by section 3 of the U P Special Powers Act 1932 were not in the interests of public order In the usual course the matter was placed before the two learned Judges who first heard the case and they on the basis of the majority view allowed the petition and directed the respondent to be released The State has preferred the present appeal against the said order of the High Court The learned Advocate General appearing for the appellant stated before us that be did not propose to canvass the correctness of the majority view on one of the important points raised in the case namely that the effect of the passing of the Act did not ipso facto deprive a citizen of his freedom of speech guaranteed under article 191 a of the Constitution and its validity should be tested by the provisions 825 of article 192 thereof He did not concede the validity of the finding in this regard but assumed its correctness for the purpose of this case Nothing further therefore need be mentioned on this point The gist of the argument of the learned Advocate General may be stated thus The legislature can make laws placing reasonable restrictions on the rights of a citizen to freedom of speech and expression in the interests of public order among other grounds The words in the interests of public order are wider in connotation than the words for the maintenance of public order Laws are rules made by the legislature for the governance of the people in the State which they are bound to obey and they are enacted to keep public peace and order The avowed object of section 3 of the Act was to prevent persons from instigating others to break the laws imposing a liability upon a person or class of persons to pay taxes and other dues to the State any authority or to any land owner The impugned section was enacted in the interests of public order and therefore the section was protected by article 192 of the Constitution The learned Advocate General pointed out that the object of the State in preferring this appeal was to obtain the decision of this Court on the question of constitutional validity of section 3 of the Act and not to pursue the matter against Dr Lohia The respondent was not present at the time the appeal was heard and was not represented by an advocate As the question raised was an important one we requested Mr N section Bindra to assist the Court and he kindly agreed to do so He supported the majority view of the High Court We record our thanks for his assistance At the outset it would not be out of place to notice briefly the history of the Act The Act was originally passed in the year 1932 during the British rule In an attempt to offset the campaign of non payment of taxes and other forms of agitation resorted to by the Congress Party originally it was put on the statute book for one year but in 1940 when the State was under the Governor s rule the Act was made 826 permanent Under the Act sections 1 and 2 came into effect immediately on the passing of the Act and section 12 enabled the Government by notification to extend all or any of the remaining sections to any district or to any part of a district in the United Provinces After the Constitution the Act was not repealed but was allowed to continue with necessary adaptations in the statue book Between April and June 1954 the State Government extended the provisions of the Act to 33 districts including Farrukhabad district Now lot us look at the provisions of the Act to ascertain its scope and field of operation The preamble discloses that it was enacted in 1932 to make provision against and to take powers to deal with instigation to the illegal refusal of the payment of certain liablities and section 2 defines liablity to mean land revenue or any sum recoverable as arrears of land revenue or any tax rate cess or other dues or amount payable to Government or to any local authority or rent of agricultural land or anything recoverable as arrears of or along with such rent Section 3 prescribes the punishment for instigation to the non payment of a liability As the argument centres round this section it will be convenient to read the same Section 3 Whoever by word either spoken or written or by signs or by visible representations or otherwise instigates expressly or by implication any person or class of persons not to pay or to defer payment of any liability and whoever does any act with intent or knowing it to be likely that any words signs or visible representations con taining such instigation shall thereby be communicated directly or indirectly to any person or class of persons in any manner whatsoever shall be punishable with imprisonment which may extend to six months or with fine extending to Rs 250 or with both Section 4 says that any person to whom an arrear of liability is due may apply to the Collector to realize it and the Collector is authorized to realize the same 827 as an arrear of land revenue The impugned section may be dissected into the following components i whoever by word either spoken or written or by signs or by visible representations or otherwise ii instigates iii expressly or by implicationiv any person or class of persons v not to pay any liability vi to defer payment of any liability vii does an act with intent that any words etc shall be communicated to any person or class of persons viii with the knowledge that it is likely that such words etc shall be communicated to any person or class of persons ix such communication may be made directly or indirectly and x shall be punished with imprisonment or with fine or with both Under this section a wide net has been cast to catch in a variety of acts of instigation ranging from friendly advice to a systematic propaganda not to pay or to defer payment of liability to Government any authority or to any person to whom rent is payable in respect of agricultural land The meaning of this section read along with sections 2 and 4 can be ascertained more clearly by illustration than by definition 1 A instigates B not to pay any liability to Government any authority or to any land owner 2 A instigates B to defer payment of any liability to Government any authority or landlord 3 A instigates a class of persons to do the same 4 A may do any one of the foregoing things not only by word but also by signs visible representations or otherwise 5 A may do any one of the things bona fide either to get the claim decided in a Court of law or to gain time to get the law changed 6 A may instigate B not to pay any amount due to Government or to any authority but the said amount can be recovered by the authority concerned as arrears of land revenue 7 A may tell C with intention or with knowledge that the said instigation may be communicated to B so that he may not pay 8 any statement by A to C may imply such instigation In its wide amplitude the section takes in the innocent and the guilty persons bona fide and mala fide advice individuals and class abstention from payment and deferment of payment 828 expressed or implied instigation indirect or direct instigation liability due not only to Government but to any authority or landholder In short no person whether legal adviser or a friend or a well wisher of a person instigated can escape the tentacles of this section though in fact the rent due has been collected through coercive process or otherwise We shall now proceed to consider the constitutional validity of this section The material portions of the relevant provisions of the Constitution may now be read Article 19 1 All citizens shall have the right a to freedom of speech and expression 2 Nothing in sub clause a of clause 1 shall affect the operation of any existing law or prevent the State from making any law in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the security of the State friendly relations with foreign States public order decenc or morality or in relation to contempt of courtdefamation or incitement to an offence Clause 2 of article 19 was amended by the Constitution First Amendment Act 1951 By this amendment several new grounds of restrictions upon the freedom of speech have been introduced such as friendly relations with foreign States public order and incitement to an offence It is self evident and common place that freedom of speech is one of the bulwarks of a democratic form of Government It is equally obvious that freedom of speech can only thrive in an orderly society Clause 2 of article 19 therefore does not affect the operation of any existing law or prevent the State from making any law in so far as such law imposes reasonable restrictions on the exercise of the right of freedom of speech in the interest of public order among others To sustain the existing law or a new law made by the State under cl 2 of article 19 so far as it is relevant to the present enquiry two conditions should be 829 complied with viz i the restrictions imposed must be reasonable and ii they should be in the interests of public order Before we consider the scope of tile word of limitation reasonable restrictions and in the interests of it is necessary to ascertain the true meaning of the expression public order in the said clause The expression public order has a very wide connotation Order is the basic need in any organised society It implies the orderly state of society or community in which citizens can peacefully pursue their normal activities of life In the words of an eminent Judge of the Supreme Court of America the essential rights are subject to the elementary need for order without which the guarantee of those rights would be a mockery The expression has not been define in the Constitution but it occurs in List II of its Seventh Schedule and is also inserted by the Constitution First Amendment Act 1951 in el 2 of article 19 The sense in which it is used in article 19 can only be appreciates by ascertaining how the Article was construed before it was inserted therein and what was the defect to remedy which the Parliament inserted the same by the said amendment The impact of el 2 of article 19 on article 191a before the said amendment was subject to judicial scrutiny by this Court in Romesh Thappar vs The State of Madrasl There the Government of Madras in exercise of their powers under section 91 A of the Madras Maintenance of Public Order Act 1949 purported to issue an order whereby they imposed a ban upon the entry and circulation of the journal called Cross Roads in that State The petitioner therein contended that the said order contravened his fundamental right to freedom of speech and expression At the time when that order was issued the expression public order was not in article 192 of the Constitution but the words the security of the State were there In considering whether the impugned Act was made in the interests of security of the State Patanjali Sastri J as he then was after citing the observation of Stephen in his Criminal Law of England states 1 1950 SCR 594 600 601 602 830 Though all these offences thus involve disturbances of public tranquillity and are in theory offences against public order the difference between them being only a difference of degree yet for the purpose of gurading the punishment to be inflicted in respect of them they may be classified into different minor categories as has been done by the Indian Penal Code Similarly the Constitution in formulating the varying criteria for permissible legislation imposing restrictions on the fundamental rights enumerated in article 19 1 has placed in a distinct category those offences against public order which aim at undermining the security of the State or overthrowing it and made their prevention the sole justification for legislative abridgement of freedom of speech and expression that is to say nothing less than endangering the foundations of the State or threatening its overthrow could justify curtailment of the rights to freedom of speech and expres sion The learned Judge continued to state The Constitution thus requires a line to be drawn in the field of public order or tranquillity marking off may be roughly the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of the State and the relatively minor breaches of the peace of a purely local significance treating for this purpose differences in degree as if they were differences in kind The learned Judge proceeded further to state We are therefore of opinion that unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it such law cannot fall within the reservation under clause 2 of article 19 although the restrictions which it seeks to impose may have been conceived generally in the interests of public order This decision establishes two propositions viz i maintenance of public order is equated with maintenance of public tranquillity and ii the offences against 831 public order are divided into two categories viz a major offences affecting the security of the State and b minor offences involving breach of purely local significance This Court in Brij Bhushan vs The state of Delhi 1 followed the earlier decision in the context of section 7 1 c of the East Punjab Public Safety Act 1949 Fazl Ali J in his dissenting judgment gave the expression public order a wider meaning than that given by the majority view The learned Judge observed at p 612 thus When we approach the matter in this way we find that while public disorder is wide enough to cover a small riot or an affray and other cases where peace is disturbed by or affects a small group or persons public unsafety or insecurity of the State will usually be connected with serious internal disorders and such disturbances of public tranquillity as jeopardize the security of the State This observation also indicates that public order is equated with public peace and safety Presumably in an attempt to get over the effect of these two decisions the expression public order was inserted in article 19 2 of the Constitution by the Constitution First Amendment Act 1951 with a view to bring in offences involving breach of purely local significance within the scope of permissible restrictions under cl 2 of article 19 After the said amendment this Court explained the scope of Romesh Thappar s Case 1 in The state of Bihar vs shailabala Devi That case was concerned with the constitutional validity of section 4 1 a of the Indian Press Emergency Powers Act 1931 It deals with the words or signs or visible representations which incite to or encourage or tend to incite to or encourage the commission of any offence of murder or any cognizable offence involving violence Mahajan J as he then was observed at p 660 The deduction that a person would be free to incite to murder or other cognizable offence through the press with impunity drawn from our decision in 1 2 106 832 Romesh Thappar s case could easily have been avoided as it was avoided by Shearer J who in very emphatic terms said as follows I have read and re read the judgments of the Supreme Court and I can find nothing in them myself which bear directly on the point at issueand leads me to think that in their opinion a restriction of this kind is no longer permissible The validity of that section came up for consideration after the Constitution First Amendment Act 1951 which was expressly made retrospective and therefore the said section clearly fell within the ambit of the words in the interest of public order That apart the observations of Mahajan J as he then was indicate that even without the amendment that section would have been good inasmuch as it aimed to prevent incitement to murder The words public order were also understood in America and England as offences against public safety or public peace The Supreme Court of America observed in Cantewell vs Connecticut 1 thus The offence known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquillity It includes not only violent acts and words likely to produce violence in others No one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot When clear and present danger of riot disorder interference with traffic upon the public streets or other immediate threat to public safety peace or order appears the power of the State to prevent or punish is obvious The American decisions sanctioned a variety of restrictions on the freedom of speech in the interests of public order They cover the entire gamut of restrictions that can be imposed under different heads in article 192 of our Constitution The following summary of some of the cases of the Supreme Court of America given in a well known book on Constitutional Law illustrates the range of categories of cases covering 1 308 833 that expression In the interests of public order the State may prohibit and punish the causing of loud and raucousnoise in streets and public places by means of sound amplifying instruments regulate the hours and place of public discussion and the use of the public streets for the purpose of exercising freedom of speech provide for the expulsion of hecklers from meetings and assemblies punish utterances tending to incite an immediate breach of the peace or riot as distinguished from utterances causing mere public inconvenience annoyance or unrest In England also Acts like Public Order Act 1936 Theatres Act 1843 were passed the former making it an offence to use threatening abusive or insulting words or behaviour in any public place or at any public meeting with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be caused and the latter was enacted to authorise the Lord Chamberlain to prohibit any stage play whenever he thought its public performance would militate against good manners decorum and the preservation of the public peace The reason underlying all the decisions is that if the freedom of speech was not restricted in the manner the relevant Acts did public safety and tranquillity in the State would be affected But in India under article 192 this wide concept of public order is split up under different heads It enables the imposition of reasonable restrictions on the exercise of the right to freedom of speech and expression in the interests of the security of the State friendly relations with foreign States public order decency or morality or in relation to contempt of court defamation or incitement to an offence All the grounds mentioned therein can be brought under the general head public order in its most comprehensive sense But the juxtaposition of the different grounds indicates that though sometimes they tend to overlap they must be ordinarily intended to exclude each other Public order is therefore something which is demarcated from the others In that limited sense particularly in view of the history of the amendment it can be pustulated that public order 834 is synonymous with public peace safety and tranquillity The next question is what do the words interest of public order mean The learned Advocate General contends that the phrase in the interest of public order is of a wider connotation than the words for the maintenance of public order andtherefore any breach of law which may have the tendency however remote to disturb the public order would be covered by the said phrase Support is Sought to be drawn for this wide proposition from the judgment of this Court in Ramji Lal Modi vs The State of UP 1 It is not necessary to state the facts of that case as reliance is placed only on the observations of Das CJ at p 865 which read It will be noticed that the language employed in the amended clause is in the interests of and not for the maintenance of As one of us pointed out in Debi Saron vs The State of Bihar 2 the expression in the interests of makes the ambit of protection very wide A law may not have been designed to directly maintain public order and yet it may have been enacted in the interests of public order The learned Chief Justice again in Virendra vs The State of Punjab 3 observed at p 317 much to the same effect As has been explained by this Court in Ramji Lal Modi vs The State of UP 1 the words in the interests of are words of great amplitude and are much wider than the words for the maintenance of The expression in the interests of makes the ambit of the protection very wide for a law may not have been designed to directly maintain the public order or to directly protect the general public against any particular evil and yet it may have been enacted in the interests of the public order or the general public as the case may be We do not understand the observations of the Chief Justice to mean that any remote or fanciful connection between the impugned Act and the public order 1 2 AI R 1954 Pat 254 3 835 would be sufficient to sustain its validity The learned Chief Justice was only making a distinction between an Act which expressly and directly purported to maintain public order and one which did not expressly state the said purpose but left it to be implied therefrom and between an Act that directly maintained public order and that indirectly brought about the same result The distinction does not ignore the necessity for intimate connection between the Act and the public order sought to be maintained by the Act Apart from the said phrase another limitation in the clause namely that the restrictions shall be reasonable brings about the same result The word reasonable has been defined by this Court in more than one decision It has been held that in order to be reasonable restrictions must have reasonable relation to the object which the legislation seeks to achieve and must not go in excess of that object The restriction made in the interests of public order must also have reasonable relation to the object to be achieved ie the public order If the restriction has no proximate relationship to the achievement of public order it cannot be said that the restriction is a reasonable restriction within the meaning of the said clause A full bench decision of the Federal Court in Rex vs Basudeva 1 contains some observations which give considerable assistance to construe the words In that case the appellant was detained in pursuance of the order made by the Government of UP under the UP Prevention of Black Marketing Temporary Powers Act 1947 The question was whether the preventive detention provided for in section 31 i of the said Act was preventive detention for reasons connected with the maintenance of public order The argument in that case ran on the same lines as in the present case The learned Advocate General there urged that habitual black marketing in essential commodities was bound sooner or later to cause a dislocation of the machinery of controlled distribution which in turn might lead to breaches of the peace and that therefore detention with a view to prevent such black marketing was covered by the 1 AIR 1950 FC 67 836 entry Answering that argument Patanjali Sastri Jas he then was pointed out at p 69 Activities such as these are so remote in the chain of relation to the maintenance of public order that preventive detention on account of them cannot in our opinion fall within the purview of Entry I of List II The connection contemplated must in our view be real and proximate not far fetched or problematical The decision in our view lays down the correct test The limitation imposed in the interests of public order to be a reasonable restriction should be one which has a proximate connection or nexus with public order but not one far fetched hypothetical or problematical or too remote in the chain of its relation with the public order We shall now test the impugned section having regard to the aforesaid principles Have the acts prohibited under section 3 any proximate connection with public safety or tranquility We have already analysed the provisions of section 3 of the Act In an attempt to indicate its wide sweep we pointed out that any instigation by word or visible representation not to pay or defer payment of any exaction or even contractual dues to Government authority or a landowner is made an offence Even innocuous speeches are prohibited by threat of punishment There is no proximate or even forseeable connection between such instigation and the public order sought to be protected under this section We cannot accept the argument of the learned Advocate General that instigation of a single individual not to pay tax or dues is a spark which may in the long run ignite a revolutionary movement destroying public order We can only say that fundamental rights cannot be controlled on such hypothetical and imaginary considerations It is said that in a democratic set up there is no scope for agitational approach and that if a law is bad the only course is to get it modified by democratic process and that any instigation to break the law is in itself a disturbance of the public order If this argument without obvious limitations be accepted it would 837 destroy the right to freedom of speech which is the very foundation of democratic way of life Unless there is a proximate connection between the instigation and the public order the restriction in our view is neither reasonable nor is it in the interest of public order In this view we must strike down section 3 of the Act as infringing the fundamental right guaranteed under article 191a of the Constitution The learned Advocate General then contended that the section is severable and that if so severed the section may be made to function within the limited field that stands the test of article 192 of the Constitution He asks us to read the section as follows Whoever by word either spoken or written or by signs or by visible representations or otherwise instigates expressly or by implication any class of persons not to pay or to defer payment of any liability and whoever does any act with intent or knowing it to be likely that any words signs or visible representations containing such instigation shall thereby be communicated directly or indirectly to any class of persons in any manner whatsoever shall be punishable with imprisonment which may extend to six months or with fine extending to Rs 250 or with both By so doing he argues that instigation of a class of persons only is made liable and thereby the section is rid of the vice of unconstitutionality The doctrine of severability vis a vis the fundamental rights is sought to be supported on the basis of the wording of article 131 of the Constitution Under that Article laws in so far as they are inconsistent with the provisions of Part III ire void only to the extent of such inconsistency But this implies that consistent and inconsistent parts of a law are severable This doctrine in its relation to fundamental rights was considered by this Court in three decisions In Romesh Thapper s case 1 such an argument has been repelled by this Court Patanjali Sastri J as he then was statd the legal position thus at p 603 1 1950 SCR 594 600 601 602 838 Where a law purports to authorise the imposition of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such rightit is not possible to uphold it even so far as it may be applied within the constitutional limits as it is not severable So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out it must be held to be wholly unconstitutional and void In Chintaman Rao vs The State of Madhya Pradesh the same principle is again restated Mahajan J as he then was observed at p 765 The law even to the extent that it could be said to authorize the imposition of restrictions in regard to agricultural labour cannot be held valid because the language employed is wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting the right So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out it must be held to be wholly void The wide reach of this principle appears to have been circumscribed to some extent in a later decision of this Court in R M D Chamarbaugwalla vs The Union of India 2 In that case the constitutionality of sections 4 and 5 of the Prize Competitions Act 42 of 1955 was challenged on the ground that prize competition as defined in section 2d of the Act included not merely competitions that were of a gambling nature but also those in which success depended to a substantial degree on skill This Court having regard to the history of the legislation the declared object thereof and the wording of the statute came to the conclusion that the competitions which were Sought to be controlled and regulated by the Act were only those competitions in which success did not depend to any substantial degree on skill That conclusion was sufficient to reject the contention raised in that case but even on the assumption that 1 2 1957 SCR 930 839 prize competition as defined in section 2d of the Act included those in which success depended to substantial degree on skill as well as those in which it did not so depend this Court elaborately considered the doctrine of severability and laid down as many as seven rules of construction On the application of the said rules it was held that the impugned provisions were severable in their application to competitions in which success did not depend to any substantial degree on skill The foregoing discussion yields the following results 1 Public order is synonymous with public safety and tranquillity it is the absence of disorder involving breaches of local significance in contradistinction to national upheavals such as revolution civil strife war affecting the security of the State 2 there must be proximate and reasonable nexus between the speech and the public order 3 section 3 as it now stands does not establish in most of the cases comprehended by it any such nexus 4 there is a conflict of decision on the question of severability in the context of an offending provision the language whereof is wide enough to cover restrictions both within and without the limits of constitutionally permissible legislation one view is that it cannot be split up if there is possibility of its being applied for purposes not sanctioned by the Constitution and the other view is that such a provision is valid if it is severable in its application to an object which is clearly demarcated from other object or objects falling outside the limits of constitutionally permissible legislation and 5 the provisions of the section are so inextricably mixed up that it is not possible to apply the doctrine of severability so as to enable us to affirm the validity of a part of it and reject the rest It is not necessary in this case to express our preference for one or other of the foregoing decisions Assuming that the summary of the rules of construction given in the last of the cases cited supra are correct and exhaustive we are not satisfied that in the instant case the impugned section with the 107 840 omissions suggested by the learned Advocate General could wholly or to any extent be salvaged The words of the section with the suggested omissions continue to suffer from the same vice they are subjected to without the said omissions The Suggested omissions from the section only exclude individuals from the operation of the section and confine it to a class of persons and in other respects it is not freed from the defects already pointed out by us In R M D Chamarbaugwalla s Case 1 the difference between two classes of competitions namely those that are of gambling nature and those in which success depends on skill is clear cut and has long been recognized in legislative practice But in the present case it is not even possible to predicate with some kind of precision the different categories of instigation falling within or without the field of constitutional prohibitions The constitutional validity of a section cannot be made to depend upon such an uncertain factor Whether the principle of the first two decisions is applied or that of the third is invoked the constitutional validity of the section cannot be sustained We therefore hold that section 3 of the Act is void as infringing article 191a of the Constitution The entire section therefore must be struck down as invalid If so the prosecution of the respondent under that section is void The learned Advocate General made an impassioned appeal to persuade us to express our view that though the present section is void on the ground that it is an unreasonable restriction on the fundamental right in the interests of public order the State could legitimately re draft it in a way that it would conform to the provisions of article 192 of the Constitution It is not this Court s province to express or give advice or make general observations on situations that are not presented to it in a particular case It is always open to the State to make such reasonable restrictions which are permissible under article 192 of the Constitution In the result the appeal is dismissed Appeal dismissed

The sole trustee of a deity in a suit prayed for a decree for the recovery of the arrears of income of a property alleging that the property in dispute constituted a specified endowment for Kalyanotsavam of the deity and the appellants who were trustees of the said property had committed default in carrying out the purpose of the trust but there was no formal Prayer for the declaration that the said properties and income thereof formed a specific endowment for the said due performance of the services of Kalyanotsovam of the deity and feeding charges and other expenses The defence raised was that lnam was a personal grant burdened with service of the deity and that it was not a specific trust or an endowment for the benefit of the idol The High Court after allowing the respondents to amend the plaint by adding a formal prayer for declaration stating that the properties and income thereof formed a specific endowment for the due performance of the services of Kalyanotsavam of the deity held in favour of the respondents and further observed that the appellants were liable to pay the entire income to the deity On appeal to the Supreme Court it was contended for the appellants inter alia 1 that the grant was a personal grant burdened with the provision for service and it was not a specific grant 2 that High Court should not have allowed the amendment of the plaint Held that in the instant case the grant was a specific endowment for Kalyanotsavam of the deity and therefore a specific trust and not a grant to the appellants with the added obligation of spending on the service In considering the question of the nature of a grant the inam registers have always been treated as evidence of the utmost importance particularly where Sanad Inam title deeds are not produced and when two inferences are possible from the reading of documents there is no reason why the Supreme Court will interfere with the view taken by the courts below When at the time of a grant the specific charitable payments exhaust the income of the property it is a fair inference to draw 769 therefrom that the intention was to devote the whole income to charity and any subsequent increase in the value of the property accrues to the charity and the courts would be right to apply the doctrine of Cy pres Held further that where necessary allegations had been made in a plaint and the requisite pleas raised and issues framed on the question and the parties were fully cognizant on the points in controversy and necessary evidence led by them the courts would be right in allowing the amendment by the addition of a prayer in the prayer clause which was in the nature of formal relief which flowed from the allegation in the plaint

Civil Appeal No 258 of 1958 Appeal by special leave from the Award dated August 17 1957 of the Industrial Tribunal Bombay in Reference IT No 15 of 1957 IM Nanavati section N Andley JB Dadachanji and Rameshwar Nath for the appellant 907 BKB Naidu and I N Shroff for respondent No 1 I N Shroff for interveners Nos 1 and 2 1960 February 3 The Judgment of the Court was delivered by DAS GUPTA J The only point raised in this appeal by the employer Petlad Turkey Red Dye Works Ltd Petlad against the award of an industrial Tribunal of a sum of Rs 9839 equivalent to one month s basic wages is as regards the correctness of the disallowance in the process of ascertaining the available surplus of a claim of 4 interest on Rs 227000 standing in the depreciation fund said to have been used as working capital If this claim was allowed and the amount claimed deducted as a prior charge no surplus would remain so that the employees would not be entitled to any bonus The Industrial Tribunal was of opinion that even if the depreciation reserve was utilized as working capital no return thereon was allowable for the purposes of deciding on the amount to be deducted as prior charges in applying the Full Bench Formula In this view it was clearly wrong Numerous decisions of this Court make it abundantly clear that any portion of the reserve actually utilized as working capital in the year under consideration should be treated as entitled to a reasonable rate of return and the amount thus ascertained deducted as a prior charge in ascertaining the available surplus There is no reason whatsoever for making an exception in this respect as regards depreciation reserves The question remains however whether this amount of Rs 227000 in the depreciation fund was actually used as working capital The Tribunal did not think it necessary to consider this question as in its view even if this entire amount has been utilised as working capital no return was allowable If on the materials on the record it was possible to reach a conclusion that any reserve or any portion of it was used as working capital during the period under consideration we would have thought fit to calculate the amount allowable as return thereupon and deducted it from the amount ascertained as surplus 908 by the Industrial Tribunal On an examination of the record however we cannot discover any such material All that we have is that the employer Company in its written statement claimed interest on reserves as working capital at Rs 32 000 the rate of return being mentioned as 4 It as not mentioned therein in so many words that the depreciation fund was part of the reserves employed as working capital It is claimed however that such an averment was implicit in the claim of Rs 32000 as the amount allowable as return on reserves employed as working capital Assuming that this is so it still remained the duty of the Company to prove that any portion of the depreciation fund was actually utilised as working capital It was suggested before us that this averment by implication that the depreciation fund was also used as working capital was not challenged by the workers This suggestion is obviously incorrect We find that in Exhibit UI a statement submitted on behalf of the workers containing calculations for the available surplus Rs 3000 was shown as the amount deductible on working capital at 2 That is a sum of Rs 150000 out of the reserves was stated to have been used as working capital The employer s statement in Exhibit C3 dated July 12 1957 shows a deduction of Interest at 4 on Reserves employed as working capital Rs 32000 A similar claim is made in exhibit C4 an alternative statement filed on behalf of the employer on July 121957 The workmen also filed a statement showing calculations of bonus made by them on the same date ie July 12 1957 This is marked as exhibit U3 According to this return at the rate of 4 on working capital of Rs 166000 was allowable as deduction Thus according to workmen the reserves used as working capital was stated to be Rs 166000 while according to the employer this amount was no less than 8 lakhs It is quite clear therefore that the workmen had at no stage admitted either expressly or by implication the employer s claim that any portion of the depreciation fund was utilized as working reserve On behalf of the appellant it was strenuously contended however that the balance sheet of the 909 Company which was placed before the Industrial Tribunal will itself show that the entire sum of depreciation fund of Rs 227000 was used as working capital The balance sheet does show a sum of Rs 227000 as the depreciation fund Assuming for the purposes of the present case that this was the actual sum standing in the depreciation reserve the further question is whether the balance sheet proves that this sum was utilized as working capital Assuming further for the purposes of this case that the analysis of the statement made in the balance sheet might indicate that this sum could not but have been utilised as working capital it has to be remembered that no such conclusion is possible unless it is known as a fact that the statements made in the balancesheets under the different heads are correct statements On that there is absolutely no evidence All that the balance sheet as submitted shows is that certain statements were made The mere fact that the statements were made can never be taken as proving that the statements were correct That is a distinction which the courts of law have always been careful to make Thus if a person is to prove that he was ill on a particular date the mere filing of a certificate of a medical man that he was ill on that date is not accepted as evidence to show that he was ill The correctness of the statement made in the certificate has to be proved by an affidavit or oral testimony in court by the Doctor concerned or by some other evidence There is no reason why an exception should be made in the case of balance sheets prepared by Companies for themselves It has to be borne in mind that in many cases the Directors of the Companies may feel inclined to make incorrect statements in these balance sheets for ulterior purposes While that is no reason to suspect every statement made in these balance sheets the position is clear that we cannot presume the statements made therein to be always correct The burden is on the party who asserts a statement to be correct to prove the same by relevant and acceptable evidence The mere statement of the balance sheet is of no assistance 910 to show therefore that any portion of the reserve was actually utilized as working capital The question whether a balance sheet can be taken as proof of a claim of what portion of reserve has actually been used as working capital was very recently considered by us in Khandesh Spg Weaving Mill Co Ltd vs The Rashtriya Girni Kamgar Sangh Jalgaon Civil Appeal No 257 of 1958 As was pointed out by Subba Rao J in that case the balancesheet of a Company is prepared by the Company s own officers and when so much depends on the ascertainment of what portion of the reserve was utilized as working capital the principles of equity and justice demand that an Industrial Court should insist upon a clear proof of the same and also give a real and adequate opportunity to the labour to canvass the correctness of the particulars furnished by the employer In that case we also considered an observation in Indian Hume Pipe Company Ltd vs Their Workmen 1 which was relied upon for an argument that the balance sheet was good evidence to prove that amounts were actually used as working capital As was pointed out in Khandesh Spg Weaving Mills Case Supra this observation was not intended to lay down the law that a balance sheet by itself was good evidence to prove any fact as regards the actual utilisation of reserves as working capital The observation relied on was a sentence at page 362 Moreover no objection was urged in this behalf nor was any finding to the contrary recorded by the Tribunal If it had been intended to state as a matter of law that the balance sheet itself was good evidence to prove the fact of utilisation of a portion of the reserve as working capital it would have been unnecessary to add such a sentence This question as regards the sufficiency of the balance sheet itself to prove the fact of utilization of any reserve as working capital was also considered by us in Management of Trichinopoly Mills Ltd vs National Cotton Textile Mills Workers Union Civil Appeal No 309 of 1957 and it was held that the balance sheet does not by itself prove any such fact and that the law requires that such an important 1 1959 II LLJ 357 911 fact as the utilisation of a portion of the reserve as working capital has to be proved by the employer by evidence given on affidavit or otherwise and after giving an opportunity to the workmen to contest the correctness of such evidence by cross examination We must therefore reject the contention urged on behalf of the employer appellant that the balancesheet that has been filed is sufficient to prove that Rs 227000 of the depreciation fund was actually used as working capital There is as we have already stated no material on the record from which any conclusion can be reached as regards the utilisation of the whole or any portion of this sum lying in depreciation fund as working capital The appellant s counsel finally asked that the matter may be sent back to the Industrial Tribunal and an opportunity given to him to adduce proper evidence on this point We do not see any circumstance that will justify us in making an order of remand in a case of this nature The appeal is accordingly dismissed with costs Appeal dismissed

The petitioner who entered into contracts with the Government of India for the supply of certain quantities of sugar of foreign origin placed orders with dealers in foreign countries and made arrangements for transporting the goods to Bombay by engaging steamers When the goods were on the high seas and before the vessels arrived at Bombay harbour the petitioner delivered to the Government the shipping documents including the bill of lading pertaining to the goods and received the price After the goods reached the port they were taken delivery of by the Government of India after paying the requisite customs duties to the authorities concerned For the assessment year 1954 55 the Assistant Collector of Sales Tax held that sales tax was payable by the petitioner in respect of the transaction relating to the sugar sold to the Government The petitioner claimed inter alia that the sales had taken place in the course of import and therefore they were not liable to sales tax under article 2861b of the Constitution of India But it was contended for the Sales Tax Authorities that the sales were not in the course of import and that in any case under the terms of the contracts the intention of the parties was that notwithstanding the delivery of the bills of lading against payment the property in the goods should not pass to the Government till actual delivery was made Held 1 that under article 2861b of the Constitution of India the course of the import of the goods starts at a point when the goods cross the customs barrier of the foreign country and ends at a point in the importing country after the goods cross the customs barrier 2 that an importer can if he receives the shipping documents transfer the property in the goods when they are on the high seas to a third party by delivering to him shipping documents against payment and such a sale is one made in the course of import 3 that the delivery of a bill of lading while the goods are afloat is equivalent to the delivery of the goods themselves Sanders Brothers vs Maclcan Co relied on 4 that on a true construction of the contracts in question the property in the goods passed to the Government of India 853 when the shipping documents were delivered to them against payment and 5 that the sales in question took place in the course of import into India and were exempted from sales tax under Art2861b of the constitution State of Travancore Cochi vs The Bombay Co Ltd followed

Appeal No 693 of 1957 Appeal from the judgment and Order dated the 25th May 1956 of the Punjab High Court in FAC No 89D of 55 N C Chatterjee section K Kapur N H Hingorani and Ganpat Rai for the appellants H J Umrigar and T M Sen for the respondent January 20 The Judgment of the Court was delivered by SHAH J On May 3 1937 Ms Alopi Parshad and Sons Ltd who will herinafter be referred to as the Agents were under an agreement in writing appointed by the Governor General for India in Council as from October 1 1937 agents for purchasing ghee required for the use of the Army personnel The Government of India by cl 12 of the agreement undertook to pay to the Agents the actual expenses incurred for purchasing ghee cost of empty tins expenses incurred on clearance of Government tins from the railway export land customs duty levied on ghee purchased and exported from markets situated in Indian States octroi duty terminal tax or other local rates on ghee and certain other charges incurred 796 by the Agents The Government also agreed to pay to the Agents at rates specified in the agreement 1 the financing and overhead mandi charges incurred in the buying markets 2 the cost of establishments and contingencies provided by the Agents on the Government s account for carrying out the purchase and supply of ghee and 3 the buying remuneration In consideration of the Government paying to the Agents a sum of rupee one and anna one only per one hundred pounds nett weight of finally accepted ghee as combined financing and overhead mandi charges the Agents by cl 13 undertook to provide the working capital and also to bear the costs charges and expenses including financing and overhead charges incurred by them in buying ghee in the market The Agents also undertook by cl 14 to bear the establishment and contingency charges for the duo performance by them of the terms of the agreement and the Government agreed to pay in consideration thereof annas 14 and pies 6 per every hundred pounds of ghee accepted The Government also agreed to pay to the Agents remuneration for services rendered in purchasing ghee at the rate of one rupee per one hundred pounds nett weight of accepted ghee Pursuant to the agreement the Agents supplied from time to time ghee to the Government of India as required In September 1939 the World War 11 broke out and there was an enormous increase in the demand by the Government of ghee On June 20 1942 the original agreement was by mutual consent revised and in respect of the establishment and contingencies the uniform rate of annas 14 and 6 pies per hundred pounds of accepted ghee was substituted by a graded scale for the first 5 thousand tons the Agents were to be paid at the rate of Re 0 14 6 per hundred pounds for the next five thousand tons at the rate of annas 8 per hundred pounds and at the rate of annas 4 per hundred pounds for supplies exceeding ten thousand tons Even ill respect of 797 remuneration for services a graded scale was substituted for the first five thousand tons remuneration was to be paid at the rate of Re 1 per hundred pounds at the rate of annas 8 per hundred pounds for the next five thousand and annas 4 per hundred pounds for supplies exceeding ten thousand tons This modification in the rates became effective from September 11 1940 By their communication dated December 6 1943 the Agents demanded that the remuneration establishment and contingencies and mandi and financing charges be enhanced In respect of the buying remuneration they proposed a 25 per cent increase in respect of establishment and contingencies they proposed an increase of 20 per cent and in respect of mandi and financing charges an increase of 112 per cent This revision of the rates was claimed on the plea that the existing rates fixed in peace time were entirely superseded by the totally altered conditions obtaining in war time To this letter no immediate reply was given by the Government of India and the Agents continued to supply ghee till May 1945 On May 17 1945 the Government of India purporting to exercise their option under cl 9 of the agreement served the Agents with a notice of termination of the agreement On May 22 1945 the Chief Director of Purchases on behalf of the Government of India replied to the letter dated December 6 1943 and informed the Agents that normally no claim for revision of rates could be entertained during the currency of the agreement and especially with retrospective effect but a claim for ex gratia compensation to meet any actual loss suffered by an agent might be entertained if the Agents established circumstances justifying such a claim The Chief Director of Purchases called upon the Agents to submit the report of their auditors on the agency accounts for the ghee supplied as also a statement in detail showing the actual expenditure incurred The notice dated May 17 1945 was waived by mutual consent and under an arrangement dated May 16 1946 the Agents agreed to supply five 798 thousand tons of ghee by October 31 1946 on which date the agreement dated May 3 1937 was to come to an end By their letter dated July 1 1946 the Agents claimed that a dispute had arisen under the contract and appointed one Nigam to be arbitrator on their behalf to adjudicate upon the dispute pursuant to cl 20 of the terms of the agreement dated May 3 1937 and called upon the Government of India to appoint their arbitrator The Government of India by their letter dated July 10 1946 nominated one Rangi Lal to be arbitrator on their behalf Before the arbitrators the Agents made their claim under four heads 1 The Agents claimed that the agreement dated June 20 1942 was not binding upon them and they were entitled to Rs 2308372 8 0 being the difference between the buying remuneration establishment and contingency charges due under the agreement dated May 3 1937 and the amount actually received The details of this claim were set out in Sch A 2In the event of the arbitrators holding the agreement dated June 20 1942 was binding a revision of the rates for establishment and contingencies and an additional amount of Rs 691600 4 0 at such revised rates as set out in Sch B 3Revision of the rates fixed under the agreement dated June 20 1942 of the mandi charges and an additional amount of Rs 1447204 6 3 at the revised rates as set out in Sch C 4Damages for wrongful termination of the agreement in the month of October 1946 amounting to Rs 241235 as set out in Sch The arbitrators did not arrive at any agreed decision and the dispute was referred to Lala Achru Ram who was nominated an umpire The umpire was of the view that the agreement dated June 20 1942 was valid and the claim as set out in Sch A was untenable that the claims set out in Sch B and Sch C did not arise out of the agreement and he had no jurisdiction to adjudicate upon the same and that as the claim set out in Sch D was outside the scope of 799 the Reference he was incompetent to give any finding on that claim This Award was filed in the court of the Sub ordinate Judge First class Delhi The Agents applied to set aside the Award on the grounds that the umpire was guilty of misconduct in that he failed to give an adequate opportunity to the Agents to present and substantiate their case before him and that in holding that the claims as described in Schedules B C and D either did not arise out of the agreement or were outside the scope of the Reference the umpire erred The learned Subordinate Judge held that the umpire was in error in leaving undetermined claims described in Sch B and Sch D which were within the scope of the Reference and that the claim described in Sch C was properly left undecided as it was outside the scope of the Reference He also held that the Award was vitiated on account of judicial misconduct because the Agents were not allowed by the umpire sufficient opportunity to place their case The learned Subordinate Judge in that view proceeded to set aside the Award but he declined to supersede the Reference and left it to the parties to appoint other arbitrators in view of cl 20 of the agreement for settling the dispute Against the order of the Subordinate Judge the Union of India appealed to the High Court of East Punjab Khosla J who heard the appeal confirmed the order passed by the court of first instance The learned Judge agreed with the view of the Subordinate Judge that the umpire bad been guilty of judicial misconduct The learned Judge observed in his judgment that the claim of the Agents as described in Schedules B and C was not beyond the arbitration agreement In so observing presumably the learned Judge committed some error The Subordinate Judge had come to the conclusion that the claim described in Sch C was beyond the arbitration agreement and no reasons were given by Khosla J for disagreeing with that view Appeal 31 of 1953 under the Letters Patent against the judgment of Khosla J was dismissed by a 102 800 Division Bench of the High Court of East Punjab observing that the claim detailed in Sch B arose out of the contract but that it was unnecessary to decide whether the claim described in Sch C for an increase in the financing and overhead mandi charges was properly ruled out by the umpire In the meantime by letter dated August 9 1952 the Agents called upon the Government of India to appoint their arbitrator under cl 20 of the agreement dated May 3 1937 for a fresh adjudication of the dispute and intimated that they had again appointed Nigam to be their arbitrator The Government of India informed the Agents by their letter dated August 14 1952 that they had filed an appeal against the judgment of the Subordinate Judge Delhi and in the circumstances the question of appointing an arbitrator did not arise until the final disposal of the appeal The Government however without prejudice to their rights including the right to prosecute the appeal again appointed Rangi Lal to be arbitrator on their behalf After the Appeal under the Letters Patent was decided by the East Punjab High Court on Decemher 16 1953 the arbitrators entered upon the reference On March 1 1954 the Agents submitted their claim contending that the supplementary agreement dated June 20 1942 was void and not binding upon them and that in any event on the representations made on December 6 1943 and from time to time thereafter they were assured by the Chief Director of Purchases that the claim made by them would be favourably considered by the Government of India and relying on these assurances they continued to supply ghee in quantities demanded by the Government after incurring heavy extra expenditure They also claimed that they were constantly demanding an increase in the mandi and financing charges but the Chief Director of Purchases who was duly authorized in that behalf by the Government gave repeated verbal assurances that their demands would be satisfied and requested them to continue supplies for the successful prosecution of the war Contending 801 that the Government of India was estopped from repudiating their claim set out in Schedules B and C in view of all the facts and circumstances stated in the petition the Agents prayed for a declaration that the supplementary agreement dated June 20 1942 was void and not binding upon them and for a decree for payment of Rs 2748515 with interest at the rate of 6 per cent per annum from March 1 1954 and in the alternative for a decree for Rs 2563037 7 3 with interest at the rate of 6 percent per annual from March 1 1954 till recovery This claim of the Agents was resisted by the Government of India Inter alia it was denied that any assurances were given by the Director of Purchases or that the Agents continued to supply thee relying upon such alleged assurances It was asserted that the Agents continued to supply thee without insisting upon any modification of the agreement because they found and it must be presumed that they found it profitable to do so under the terms fixed under the supplementary contract dated June 20 1942 The claims made for the additional buying remuneration for mandi charges and for establishment and contingency charges were denied It was urged that in any event the claim for additional buying remuneration and for mandi charges and for reimbursement of establishment and contingencies was not covered by cl 20 of the agreement under which the submission to arbitration was made and the arbitrators had no jurisdiction to adjudicate upon those claims On the claim made by the Agents and the denial thereof the arbitrators incorporated the points of contest in the form of certain issues On May 2 1954 the arbitrators made an award rejecting the primary claim on the view that the supplementary agreement dated June 20 1942 was for consideration and the same was valid and binding upon the Agents On the alternative claim they awarded under the head of establishment and contingencies Rs 80994 12 6 being the actual loss which in their view the Agents had suffered and Rs 1127965 11 3 in addition to the amounts received by the Agents from the Government 802 for mandi and financing charges The arbitrators accordingly awarded an amount of Rs 1303676 12 6 with future interest from November 15 1949 till the V date of realization and costs The Union of India The award was filed in the court of the Commercial Subordinate Judge Delhi on June 2 1954 The Government of India applied under sections 30 and 33 of the Indian Arbitration Act to set aside the award on the grounds that it was invalid that it had been improperly procured and that it was vitiated on account of judicial misconduct of the arbitrators The Commercial Subordinate Judge held that the arbitrators had committed an error apparent on the face of the award in ordering the Union to pay to the Agents additional remuneration and financing and overhead charges but in his view specific questions having been expressly referred for adjudication to the arbitrators the award was binding upon the parties and could not be set aside on the ground of an error apparent on the face thereof The learned Judge accordingly rejected the application for setting aside the award Against the order made by the Subordinate Judge an appeal was preferred by the Union of India to the High Court of East Punjab at Chandigarh At the hearing of the appeal counsel for the Agents sought to support the award on the plea that certain questions had been specifically referred to the arbitrators and it was open to the arbitrators to make the award which they made on the basis of quantum meruit The High Court held that there was no specific reference of any questions of law to the arbitrators and the decision of the arbitrators was not conclusive and was open to challenge because it was vitiated by errors apparent on the face of the award The High Court reversed the order passed by the Subordinate Judge and set aside the award of the arbitrators holding that there was no legal basis for awarding any compensation to the Agents for any loss which they might have sustained This appeal has been filed with leave of the High Court under el 133 1a of the Constitution 803 The extent of the jurisdiction of the court to set aside an award on the ground of an error in making the award is well defined The award of an arbitrator may be set aside on the ground of an error on the face thereof only when in the award or in any document incorporated with it as for instance a note appended by the arbitrators stating the reasons for his decision there is found some legal proposition which is the basis of the award and which is erroneous Champsey Bhara and Company vs Jivaraj Balloo Spinning and Weaving Company Limited 1 If however a specific question is submitted to the arbitrator and he answers it the fact that the answer involves an erroneous decision in point of law does not make the award bad on its face so as to permit of its being set aside In the matter of an arbitration between King and Duveen and Others 2 and Government of Kelantan vs Duff Development Company Limited 3 Was the reference made by the parties to the arbitrators a specific reference that is a reference inviting the arbitrators to decide certain questions of law submitted to them If the reference is of a specific question of law even if the award is erroneous the decision being of arbitrators selected by the parties to adjudicate upon those questions the award will bind the parties In the reference originally made to the arbitrators by the letter of the Agents on July 1 1946 and the reply of the Government dated July 10 1946 a general reference of the dispute was made in terms of el 20 of the agreement Even though the award made on that reference was set aside by the Subordinate Judge the arbitration was not superseded and the reference was expressly kept alive reserving an opportunity to the parties to appoint fresh arbitrators pursuant to the agreement for settling the dispute and by letters respectively dated August 2 1952 and August 14 1952 a general reference was again made to the arbitrators Paragraph 14 of the letter written by the Agents on August 2 1952 evidences an intention to serve the notice under cl 20 1 LR 5o IA 324 2 LE 1913 2 KBD 32 3 LR 1923 AC 395 804 of the agreement Issues were undoubtedly raised by the arbitrators but that was presumably to focus the attention of the parties on the points arising for adjudication The Agents had made their claim before the arbitrators and the claim and the jurisdiction of the arbitrators to adjudicate upon the claim were denied The arbitrators were by the terms of reference only authorized to adjudicate upon the disputes raised There is no foundation for the view that a specific reference submitting a question of law for the adjudication of the arbitrators was made We agree therefore with the view of the High Court that the reference made was a general reference and not a specific reference on any question of law The award may therefore be set aside if it be demonstrated to be erroneous on the face of it The original agreement dated May 31937 was modified by the supplementary agreement dated June 20 1942 and the arbitrators have held that the modified agreement was binding upon the Agents By the agreement as modified a graded scale was fixed for the establishment and the contingencies to be paid to the Agents and also for the mandi charges and overhead expenses The arbitrators still proceeded to award an additional amount for establishment and contingencies and an additional amount for mandi charges By el 14a read with el 12b 2 of the agreement the rate at which establishment and contingency charges were to be paid was expressly stipulated and there is no dispute that the Government of India have paid to the Agents those charges at the stipulated rate for thee actually purchased The award of the arbitrators shows that the amount actually received from the Government totalled Rs 604700 9 0 whereas according to the accounts maintained by the Agents they had spent Rs 677542 0 3 Granting that the Agents had incurred this additional expenditure under the head establishment and contingencies when the contract expressly stipulated for payment of charges at rates specified therein we fail to appreciate on what ground the arbitrators could ignore the express 805 covenants between the parties and award to the Agents amounts which the Union of India had not agreed to pay to the Agents The award of the arbitrators awarding additional expenses under the head of establishment and contingencies together with interest thereon is on the face of it erroneous Before the arbitrators a number of arhatias who supplied thee to the Agents appeared and produced extracts from their books showing the amounts actually due to them from the latter Detailed charts showing the total amount due under each head of expenditure to each arhatia were produced The arbitrators were satisfied that the statements produced reflected a general rise in prices and cost of labour Taking into consideration the fact that the other persons were buying thee at rates considerably in excess of the stipulated rates the arbitrators held that the Agents were entitled to be reimbursed to the extent of Rs 1127965 11 3 But the terms of the contract stipulating the rate at which the financing and overhead charges were to be paid under el 13a read with cl 12b remained binding so long as the contract was not abandoned or altered by mutual agreement and the arbitrators had no authority to award any amount in excess of the amount expressly stipulated to be paid Mr Chatterjee on behalf of the Agents submitted that the circumstances existing at the time when the terms of the contract were settled were entirely displaced by reason of the commencement of hostilities in the Second World War and the terms of the contract agreed upon in the light of circumstances existing in May 1937 could not in view of the turn of events which were never in the contemplation of the parties remain binding upon the Agents This argument is untrue in fact and unsupportable in law The contract was modified on June 20 1942 by mutual consent and the modification was made nearly three years after the commencement of the hostilities The Agents were fully aware of the altered circumstances at the date when the modified schedule for payment of overhead charges contingencies and buying remuneration was agreed 806 upon Again a contract is not frustrated merely because the circumstances in which the contract was made are altered Section 56 of the Indian Contract Act provides A contract to do an act which after the contract is made becomes impossible or by reason of some event which the promiser could not prevent unlawful becomes void when the act becomes impossible or unlawful Performance of the contract had not become impossible or unlawful the contract was in fact performed by the Agents and they have received remuneration expressly stipulated to be paid therein The Indian Contract Act does not enable a party to a contract to ignore the express covenants thereof and to claim payment of consideration for performance of the contract at rates different from the stipulated rates on some vague plea of equity The parties to an executory contract are often faced in the course of carrying it out with a turn of events which they did not at all anticipate a wholly abnormal rise or fall in prices a sudden depreciation of currency an unexpected obstacle to execution or the like Yet this does not in itself affect the bargain they have made If on the other hand a consideration of the terms of the contract in the light of the circumstances existing when it was made shows that they never agreed to be bound in a fundamentally different situa tion which has now unexpectedly emerged the contract ceases to bind at that point not because the court in its discretion thinks it just and reasonable to qualify the terms of the contract but because on its true construction it does not apply in that situation When it is said that in such circumstances the court reaches a conclusion which is just and reasonable Lord Wright in Constantine s case1 or one which justice demands Lord Sumner in Hirji Mulji vs Cheong Yue Steamship Co Ltd 2 this result is arrived at by putting a just construction upon the contract in accordance with an implication from the 1 186 2 510 807 presumed common intention of the parties speech of Lord Simon in British Movietonews Ltd vs London and District Cinemas Ltd 1 There is no general liberty reserved to the courts to absolve a party from liability to perform his part of the contract merely because on account of an uncontemplated turn of events the performance of the contract may become onerous That is the law both in India and in England and there is in our opinion no general rule to which recourse may be had as contended by Mr Chatterjee relying upon which a party may ignore the express covenants on account of an uncontemplated turn of events since the date of the contract Mr Chatterjee strenuously contended that in England a rule has in recent years been evolved which did not attach to contracts the same sanctity which the earlier decisions had attached and in support of his contention he relied upon the observations made in British Movietonews Ld vs London and District Cinemas Ld In that case Denning LJ is reported to have observed no matter that a contract is framed in words which taken literally or absolutely cover what has happened nevertheless if the ensuing turn of events was so completely outside the contemplation of the parties that the court is satisfied that the parties as reasonable people cannot have intended that the contract should apply to the new situation then the court will read the words of the contract in a qualified sense it will restrict them to the circumstances contemplated by the parties it will not apply them to the uncontemplated turn of events but will do therein what is just and reasonable But the observations made by Denning LJ upon which reliance has been placed proceeded substantially upon misapprehension of what was decided in Parkinson Co Ld vs Commissioners of Works 3 on which the learned Lord Justice placed considerable reliance The view taken by him was negatived in 1 LR 1052 AC 166 at pp 185 186 2 1951 1 KBD 19O 201 3 1949 2 KB D 632 103 808 appeal to the House of Lords in the British Movietonew s case 1952 AC 166 already referred to In lndia in the codified law of contracts there is nothing which justifies the view that a change of circustamences completely outside the contemplation of parties at the time when the contract was entered into will justify a court while holding the parties bound by the contract in departing from the express terms thereof Parkinson and Co Ld vs Commissioners of Works 1 was a case in which on the true interpretation of a contract it was held though it was not so expressly provided that the profits of a private contractor who had entered into a contract with the Commissioners of Works to make certain building constructions and such other additional constructions as may be demanded by the latter were restricted to a fixed amount only if the additional quantity of work did not substantially exceed in value a specified sum The Court in that case held that a term must be implied in the contract that the Commissioners should not be entitled to require work materially in excess of the specified sum In that case the Court did not proceed upon any such general principle as was assumed by Denning LJ in the British Movietonews Ld vs London and District Cinemas Ld We are therefore unable to agree with the contention of Mr Chatterjee that the arbitrators were justified in ignoring the express terms of the contract prescribing remuneration payable to the Agents and in proceeding upon the basis of quantum meruit Relying upon section 222 of the Indian Contract Act by which duty to indemnify the agent against the consequences of all lawful acts done in exercise of the authority conferred is imposed upon the employer the arbitrators could not award compensation to the agents in excess of the expressly stipulated consideration The claim made by the Agents was not for indemnity for consequences of acts lawfully done by them on behalf of the Government of India it was a claim for charges incurred by them in excess of those stipulated Such a claim was not a claim for 1 1949 2 KPD 632 2 1951 1 KBD 190 201 809 indemnity but a claim for enhancement of the rate of the agreed consideration Assuming that the Agents relied upon assurances alleged to be given by the Director in charge of Purchases in the absence of an express covenant modifying the contract which governed the relations of the Agents with the Government of India vague assurances could not modify the contract Ghee having been supplied by the Agents under the terms of the contract the right of the Agents was to receive remuneration under the terms of that contract It is difficult to appreciate the argument advanced by Mr Chatterjee that the Agents were entitled to claim remuneration at rates substantially different from the terms stipulated on the basis of quantum meruit Compensation quantum meruit is awarded for work done or services rendered when the price thereof is not fixed by a contract For work done or services rendered pursuant to the terms of a contract compensation quantum meruit cannot be awarded where the contract provides for the consideration payable in that behalf Quantum meruit is but reasonable compensation awarded on implication of a contract to remunerate and an express stipulation governing the relations between the parties under a contract cannot be displaced by assuming that the stipulation is not reasonable It is therefore unnecessary to consider the argument advanced by Mr Chatterjee that a claim for compensation on the basis of quantum meruit is one which arises out of the agreement within the meaning of cl 20 Granting that a claim for compensation on the basis of quantum meruit may be adjudicated upon by the arbitrators in a reference made under el 20 of the agreement in the circumstances of the case before us compensation on that basis could not be claimed The plea that there was a bar of res judicata by reason of the decision in the Letters Patent Appeal No 31 of 1953 has in our judgment no force The Subordinate Judge set aside the award on the ground that there had been judicial misconduct committed by the umpire and also on the view that the claims made as described in Schedules B and D were not outside 810 the competence of the arbitrators The High Court in appeal under the Letters Patent did confirm the order setting aside the award but there was no binding decision between the parties that the claim described in Sch B that is the claim for establishment and contingency charges was within the competence of the arbitrators in reference under el 20It may be observed that according to the High Court of East Punjab in the Appeal No 31 of 1953 under the Letters Patent it was not necessary to express any opinion whether the claim in Sch C was within the competence of the arbitrators and the claims described in Sch D does not appear to have been agitated in the second arbitration proceeding We accordingly agree with the view of the High Court that the Award of the arbitrators was liable to be set aside because of an error apparent on the face of the award In this view the appeal fails and is dismissed with costs Appeal dismissed

Section 3 of the UP Special Powers Act 1932 XIV Of 1932 provided as follows Whoever by word either spoken or written or by signs or by visible representations or otherwise instigates expressly or by implication any person or class of persons not to pay or to defer payment of any liability and whoever does any act with intent or knowing it to be likely that any words signs or visible representations containing such instigation shall thereby be communicated directly or indirectly to any person or class of persons in any manner whatsoever shall be punishable with imprisonment which may extend to six months or with fine extending to Rs 250 or with both The appellant who was prosecuted under the section for delivering speeches instigating cultivators not to pay enhanced irrigation rates to the Government applied to the High Court for a writ of habeas corpus on the ground amongst others that the said section was inconsistent with article 191 a of the Constitution and as such void The High Court decided in favour of the appellant and he was released The State appealed to this Court and the question for determination was whether the impugned section embodied reasonable restrictions in the interests of public order and was thus protected by article 192 of the Constitution Held that even though in a comprehensive sense all the grounds specified in article 192 of the Constitution on which any reasonable restrictions on the right to freedom of speech must be based can be brought under the general head public order that expression inserted into the Article by the Constitution First Amendment Act 1951 must be demarcated from the other grounds and ordinarily read in an exclusive sense to mean public peace safety and tranquility in contradistinction to national upheavals such as revolution civil strife and war affecting the security of the State Romesh Thappar vs The State of Madras Brij Bhushan vs The State of Delhi The State of Bihar vs Shailabala Devi and Cantewell vs Connecticut discussed 822 It is well settled by decisions of this Court that in a restriction in order to be reasonable must have a reasonable relation to the object the Legislation has in view and must not go beyond it Restrictions therefore meant to be in the interest of public order which have no proximate relationship or nexus with it but can be only remotely or hypothetically connected with it cannot be reasonable within the meaning of article 192 of the Constitution Rex vs Basudeva AIR1950 FC 67 applied Ramji Lal Modi vs The State of UP and Virendra vs The State of Punjab explained So judged it cannot be said that the acts prohibited under the wide and sweeping provisions of section 3 of the Act can have any proximate or even foreseeable connection with public order sought to be protected by it and consequently that section being violative of the right to freedom of speech guaranteed by article 191 a of the Constitution must be struck down as unconstitutional It would be incorrect to argue that since instigation by a single individual not to pay taxes might ultimately lead to a revolution resulting in distruction of public order that instigation must have a proximate connection with public order No fundamental rights can be restricted on such hypothetical and imaginary consideration Nor is it possible to accept the argument that in a demo cratic set up there can be no scope for agitational approach or that any instigation to break a bad law must by itself constitute a breach of public order for to do so without obvious limitations would be to destroy the right to freedom of speech on which democracy is founded It is not possible to apply the doctrine of severability relating to fundamental rights as enunciated by this Court to the provisions of the impugned section since it is not possible to precisely determine whether the various categories of instigation mentioned therein fall within or without the constitutionally permissible limits of legislation and separate the valid parts from the invalid RMD Chamarbaugwalla vs The Union of India 1957 SCR 93o explained and distinguished Romesh Thappar vs The State of Madras and Chintaman Rao vs The State o Madhya Pradesh 1950 SCR 759 referred to

Civil Appeals No 218 of 1955 and 219 to 223 of 1955 Appeal by special leave from the judgment and Order dated September 14 1951 of the Income tax Appellate Tribunal Madras in ITA No 3158 of 1949 50 and Appeals by special leave from the judgment and order dated September 30 1953 of the Income tax Appellate Tribunal Madras in ITA Nos 7840 of 1952 53 and EPTA Nos 300 301 and 302 of 1952 53 section Chowdhuri N A Palkhivala and Naunit Lal for the appellant 887 H N Sanyal Additional Solicitor General of India R Ganapathi lyer and D Gupta for the respondent 1960 February 3 The Judgment of the Court was delivered by KAPUR J In these six appeals the common question raised is whether the proviso to section 13 of the Income tax Act is applicable to the facts and circumstances of these cases They are therefore disposed of by one judgment Civil Appeal No 218 of 1955 arises out of the assessment for the year 1943 1944 Civil Appeals Nos 219 to 223 relate to the assessment years 1944 1945 1946 1947 and for the chargeable accounting periods from January 1943 to February 1944 and from February 1945 to February 1946 The appellant in each of the appeals is the assessee and the respondent is the Commissioner of Income tax and Excess Profits Tax Madras The appellant is a resident and ordinarily resident in India and carried on extensive trade in Colombo in grains folder gram and other food stuffs for cattle and poultry For the assessment year 1943 1944 the appellant showed a turnover of Rs 1774825 and a gross profit of Rs 63217 which is about 35 per cent For the two previous assessment years the appellant s gross profits were 9 per cent and 8 per cent respectively The Income tax Officer by his order dated March 20 1948 rejected the accounts and estimated the gross profit by adding back Rs 238831 to the returned income Thus he raised the turnover to Rs 2000000 and the gross income to Rs 300000 giving a profit of 15 per cent on the estimated turnover On appeal to the Appellate Assistant Commissioner the order of the Income tax Officer was confirmed The Income tax Appellate Tribunal on appeal by its order dated September 14 1951 after pointing out various defects rejected the account books but accepted the appellant s turnover and computed the profits at 15 per cent on grains imported from India and 121 per cent on grains purchased in Ceylon It held that correct profit for the year under assessment could not be deduced from the books produced by the appellant The Excess Profits tax 113 888 for the chargeable accounting period from February 10 1942 to January 16 1943 was decided on the basis of the Income tax assessment for the year 1943 44 On November 21 1951 the appellant applied to the of Tribunal for stating a case under section 661 on the following four questions 1 Whether under the circumstances of the case the Tribunal was justified in holding that Section 13 of the Indian Income tax Act applies to the case 2 Whether the reasons set out by the Appellate Tribunal in paragraph 2 of its judgment are sufficient to invoke Section 13 of the Act 3 Whether the Tribunal having disagreed with the department on the basis of the assessment had jurisdiction to apply Section 13 and make an assessment on an alleged estimate 4 Whether the Tribunal was justified in making an assessment on the basis of Section 13 without giving an adequate opportunity to the assessee to meet the materials upon which eventually the assessment was rested But the Tribunal by its order dated February 12 1950 held that no question of law arose and therefore declined to state a case and thus rejected the application The appellant then applied to the High Court of Madras under section 662 of the Act on the same four questions of law This application was dismissed by the High Court on February 26 1953 Against this order of the appellant applied for special leave to appeal and by leave of this Court amended the petition so as to make it an appeal against the order of the High Court as well as the order of the Tribunal dated September 14 1951 In the other appeals also the course of proceedings before the Income tax Officer the Appellate Assistant Commissioner and the Income tax Appellate Tribunal was the same For the assessment years 1944 1945 and 1946 47 the appellant disclosed a turnover of Rs 1035748 and Rs 598728 respectively and the gross profits rates were 107 per cent and 87 per cent respectively As the books of accounts in regard to these years also were rejected the Income tax Appellate Tribunal applied section 13 and estimated the gross 889 profit rates at 12 12 per cent and 10 per cent for the respective years The appellant applied to the Tribunal under section 661 of the Act for stating a case to the High Court for its decision on the following two points 1 Whether on the facts and in the circumstances of the case the Department was right in acting under the proviso to section 13 of the Act in th absence of a finding that income profits and gains cannot properly be deduced from the books produced or that no method of accounting has been regularly employed 2 Whether on the facts and in the circumstances of the case the Department had sufficient materials before it to justify the rates of 12 12 per cent and 10 per cent gross profits on the total turnover on the ground that the rates worked out by the figures submitted by the assessee work out at a lesser figure The Tribunal dismissed the application on January 15 1954 The appellant did not apply to the High Court under section 662 of the Income Tax Act but obtained special leave from this Court against the order of the Tribunal by which it applied the proviso to section 13 of the Income Tax Act All the six appeals were heard together and a common question arises whether the Income tax Appellate Tribunal was justified in applying the proviso to section 13 of the Income Tax Act It was contended by the appellant in Civil Appeals Nos 218 219 and 221 of 1955 that the Income tax Appellate Tribunal was not justified in applying the proviso to section 13 and assuming that the proviso did apply then the percentage worked out was unjustified and had been arrived at by relying upon material which the appellant had no opportunity to meet and therefore the case fell within the rule in Dhakeshwari Cotton Mills Ltd vs The Commissioner of Income tax West Bengal 1 where a similar violation of the fundamental rule of natural justicese the information upon which the Tribunal relied was not disclosed to the assessee and no opportunity was given to him 11955 I SCR 941 890 to rebut such material was held to be a ground for interference with the order of the Tribunal It was rightly argued that the power to compute profits under the proviso to section 13 arises only where no method of accounting has been regularly employed by the assessee and where the method employed is such that the income profits and gain cannot properly be deduced therefrom It means that the method adopted by the assessee must prima facie prevail where it is regularly employed though the Incometax Officer can resort to the proviso if the method is such that true profits cannot be correctly determined therefrom In other words even if the assessee has regularly employed a method of accounting it can be discarded under the proviso if the method does not show correct profits of the year The Appellate Tribunal by its order dated September 14 1951 held that correct profits could not be deduced from the books produced by the assessee and therefore the proviso to section 13 of the Income Tax Act applied The reasons it gave were 1 that vouchers for several purchases made in Colombo had not been produced and for purchases of over Rs 300000 no vouchers were forthcoming and without the vouchers the entries in the account books could not be verified 2 there was no quantitative tally for the grains and for other materials purchased by the appellant which were ground into powder turned into fodder packed in different sizes and then sold It was not possible according to the Tribunal to accept the books of account where the turnover was as large as about seventeen lacs of rupees without a quantitative tally 3 a fairly big sum of money was alleged to have been paid towards purchasing of license for export from India and Rs 19000 worth of purchases were made in Tuticorin when only a small sum of money in cash was shown in the assessee s accounts 4 several outsiders cheques had been entered in the accounts of the assessee without any proof as to why those cheques were paid to the assessee and 5 a fairly big sum of money had been invested in India in the purchase of property without 891 money being received from Colombo On these facts the Tribunal said In view of these defects we are clearly of opinion that the correct profit could not be deduced from the books produced by the assessee and accordingly hold that proviso to Section 13 of the Act applies in this case The question therefore is regarding the estimate After giving this finding the Tribunal accepted the turnover as shown in the appellant s books In making the computation of profits the Tribunal took into consideration the following matters that the export of food grains from India was prohibited except under a license that there was an acute shortage of cattle fodder in Ceylon and the appellant had to resort to dubious means in order to obtain grains that during a substantial portion of the year of accounting there was no price control in Colombo that as the appellant was a manufacturer of forage by mixing several kinds of grains and powdering them and sold them in packets of various weights the appellant must have made higher profits than persons who deal in grain only Keeping all this in view the Tribunal was of the opinion that the rate of 15 per cent adopted in regard to imported grains was not too high but in the case of local purchases it was and therefore reduced the rate of profit in the latter case to 121 per cent It was on this material that the Tribunal adopted the figure of profit as estimated by the Income tax Officer and in order to support this opinion further the Tribunal remarked that in certain cases which had come to its notice the rate of profits went up to 20 per cent On the basis of this remark it was argued that the principle of natural justice had been violated in that the Tribunal had taken into consideration the rate of profit in other cases without giving an opportunity to the appellant to explain those cases and relied upon Dhakeshwari Cotton Mills Ltd vs The Commissioner of Income tax West Bengal 1 where a violation of the fundamental rule of justice ie where the information was not disclosed to the assessee and no opportunity was given to rebut that material was 1 1955 I SCR 941 892 held to be a ground for interference with the order of the Tribunal In our opinion no such case arises in the present appeal No information as in Dhakeshwari s Case was supplied to the Tribunal by any one and taken into consideration by it and therefore it was not necessary to give any such opportunity as the appellant contends for In the present case the Tribunal has held that from the method of accounting adopted by the appellant correct profits could not be deduced because of the various reasons which have been set out above and the reference to profits made in other cases was only by way of supporting that conclusion It was not the basis on which the conclusion was formed nor the basis on which the percentage was arrived at As a matter of fact the Income tax Officer who also rejected the accounts of the appellant had also given similar reasons He had held that there was absence of vouchers that the stock account and the manufacturing account had not been kept or produced that the cheques of other parties had been credited in the accounts of the appellant which had not been explained and that there was purchase of goods and property by the appellant without there being sufficient cash in hand The Income tax Officer also said that in other cases where grains were purchased in India and sold in Colombo the rates of profit were higher ranging between 20 per cent and 39 per cent He then worked out profits in respect of various grains in the case of the appellant and found that the average rate of gross profit worked out to 158 per cent and in his opinion the gross profit in fodder should have been higher He further took into consideration the fact that Colombo was bombed in April 1942 resulting in panic in that town and therefore during a portion of the accounting year the appellant might not have made the same margin of profit He estimated the sales at twenty lacs and the gross profit at three lacs thus arriving at a figure of 15 per cent on the turnover It appears to us that neither the Income tax Officer nor the Appellate Tribunal relied upon the profits made by traders in other cases as a basis for arriving at any conclusion 893 as to the percentage at which the income should be computed and that they used that material for a different purpose It is extremely doubtful if the order of the Income tax Officer or the Tribunal would have been different if no reference had been made to the rate of profits in other cases In other words the profits in other cases were not the reason for holding that 15 per cent profit was a proper rate but merely an ancillary support to that conclusion It may be mentioned that throughout in his grounds of appeal the appellant has emphasised the inapplicability of section 13 of the Income Tax Act and the proviso thereto but not to this particular violation of principles of natural justice whichwas emphasised and particularised before us In his appeal to the appellate Assistant Commissioner no objection was taken to the reference by the Income tax Officer to the rate of profits made by other dealers in grains In the grounds of appeal to the Tribunal also there was no such objection In the application under section 661 there was no specific ground taken and in the application under section 662 the matter does not seem to have been raised The order of the High Court dated February 26 1953 does not show that any such question was raised before it all it shows is that the appellant s books of account were found to be defective and afforded no data for arriving at correct profits of the business The order also refers to the non production of invoices the unexplained steep fall in profits made during the year when compared with the previous years The High Court could not find any legal flaw in the order of the Appellate Tribunal to justify an order for directing the case to be stated In the grounds of special leave to this Court no pointed reference was made to the material which is now alleged to have been used by the Tribunal without giving an opportunity to the appellant to explain that material An amended petition by leave of this Court was filed on April 28 1954 and there also no such pointed reference was made to the material to which objection is now being taken before us Dhakeshwari s Case 1 cannot in our opinion apply to the facts of this case 1 1955 I SCR 941 894 It was then urged that the four reasons given which we have set out above could not make section 13 applicable for the rejection of accounts several reasons were given by the Appellate Tribunal one of these reasons was the non production of stock registers and manufacturing accounts This reason was given by the Income tax Officer and adopted by the Appellate Tribunal It was submitted that the non production of stock account was not such a defect as to entitle the Taxing Authorities to reject the books and apply the proviso to section 13 Reliance was placed on the judgment of the Punjab High Court in Pandit Brothers vs The Commissioner of Income tax Delhi 1 The facts in that case were very different The Income tax Officer there added a certain sum to the assessee s profits on the ground that the expense ratio was too high and the profits disclosed were too low and there was no stock register The finding in that case was that the assessee maintained regular accounts of his purchases and sales and there was no finding by the Income tax Officer that in his opinion the income could not properly be deduced therefrom Khosla J as he then was there said There is no finding that there was material before the Income tax Officer to lead him to the conclusion that a proper statement of income profits and gains could not be deduced from the material placed before him All he said was that the profits appeared to be somewhat low and there was no stock register The want of a stock register was in that particular case not a very serious defect because the account books had been found and accepted as correct and disclosed a true state of affairs It cannot therefore be said that that case laid down as a proposition of law that the want of a stock register by which a proper check could be made was not such a serious defect as to make the proviso to section 13 inapplicable The importance of such register was pointed out by the Nagpur High Court in Ghanshyam Das Permanand vs Commissioner of Income tax CP Berar 2 In cases such as the instant case the keeping of a 1 1954 2 81 895 stock register is of great importance because that is a means of verifying the assessee s accounts by having a quantitative tally If after taking into account all the materials including the want of a stock register it is found that from the method of accounting correct profits of the business are not deducible the operation of proviso to section 13 of the Income tax Act would be attracted Bombay Cycle Stores Company Ltd vs Commissioner of Income tax 1 It may also be added as was held by this Court in Commissioner of Incometax vs Mac Millan Co 2 that the Income tax Officer even if he accepts the assessee s method of accounting is not bound by the figure of profits shown in the accounts It is for the Income tax Authorities to consider the material which is placed before them and if after taking into account in any case the absence of a stock register coupled with other materials they are of the opinion that correct profits and gains cannot be deduced then they would be justified in applying the proviso to section 13 In our opinion therefore when the Tribunal applied the proviso to section 13 because of the various blemishes which were pointed out by the Income tax Officer and accepted by the Appellate Tribunal it cannot be said that there was any error in the order of the Appellate Tribunal justifying the interference of this Court under article 136 In regard to the Appeal No 220 of 1955 for the assessment year 1946 1947 the objection raised was that the Tribunal had committed the same error in that it took into consideration the earlier decision of the Tribunal in an identical situation ie in the case of the same assessee in regard to previous years As we have held that there was no error in the order of the Tribunal in regard to the previous years it cannot be said that this observation of the Tribunal was in any manner erroneous This appeal should therefore be dismissed The other appeals which arise Under the Excess Profits Tax Act for the various chargeable accounting periods depend upon the result of the Income tax 1 2 197 114 896 assessment appeals and as we have dismissed those appeals these appeals also must be dismissed In the result all the six appeals are dismissed with costs As the appeals were consolidated there will be of One set of costs Appeals dismissed

The Industrial Tribunal in the process of ascertaining the available surplus disallowed a claim of the appellant employer for interest on a certain sum of money standing in the depreciation fund and alleged to have been used as working capital If this claim was allowed and the amount claimed deducted as a prior charge the employees would not be entitled to any bonus as there would be no surplus The Industrial Tribunal was of opinion that even if the depreciation reserve was utilised as working capital no return thereon was allowable in deciding what amount was to be deducted as prior charge On appeal the appellant contended inter alia that the balance sheet of the employer company placed before the Industrial Tribunal itself showed that the entire sum of depreciation fund was used as working capital Held that any portion of the reserve fund actually utilised as working capital in the year under consideration should be treated as entitled to a reasonable rate of return and the amount thus ascertained deducted as a prior charge in ascertaining the available surplus The balance sheet did not by itself prove the fact of utilisation of any reserve as working capital and the law required that such an important fact as the utilisation of the reserve as working capital had to be proved by the employer by evidence on affidavit or otherwise after giving opportunity to the workmen to contest the correctness of such evidence by cross examination Management of Trichinopoly Mills Ltd vs National Cotton Textile Mills Workers Union CA NO 309 Of 1957 and Khandesh Spg Weaving Mills Co Ltd vs The Rashtriya Girni Kamgar Sangh jalgaon CA No 257 Of 1958 followed Indian Hume Pipe Co Ltd vs Their Workmen 1959 11 LLJ 357 explained

Civil Appeal No 136 of 1958 Appeal by special leave from the decision dated April 301956 of the Labour Appellate Tribunal of India at Lucknow in Appeeal No III 45 of 1956 lip 919 arising out of the award dated February 6 1956 of the State Industrial Tribunal Allahabad in reference No 96 of 1955 Ram Lal Anand IM Lal and section section Sukla for the appellants B D Sharma for respondents Nos 1 to 5 CP Lal and G N Dikshit for respondent No 6 1960 February 9 The Judgment of the Court was delivered dy SUBBA RAO J This is an appeal by special leave against the order of the Labour Appellate Tribunal of India setting aside the award of the Industrial Tribunal Allahabad and directing the reinstatement of the workers in Kundan Sugar Mills at Amroha Kundan Sugar Mills is a partnership concern and owns a sugar mill at Amroha The respondents I to 4 were employed by the appellant as seasonal masons in the year 1946 In 1951 the partners of the appellant Mills purchased the building machinery and other equipment of another sugar mill at Kiccha in the district of Nainital They closed the said mill at Kiccha and started it at Bulandshahr The new factory was named Pannijee Sugar General Mills Bulandshahr On January 19 1955 the General Manager of the appellant Mills ordered the transfer of the respondents I to 4 from the appellant Mills to the new mill at Bulandshahr The said respondents through their representative the fifth respondent protested to the General Manager against the said transfer But the General Manager by his letter dated January 2224 1955 insisted upon their joining the new mill at Bulandshabr But the said respondents did not accede to his request On January 28 1955 the General Manager served a notice on the respondents 1 to 4 stating that they had disobeyed his orders and thereby committed misconduct under Standing Order No La They were asked to submit their explanation as to why action should not be taken against them under the Standing Order The Labour Union by its letter dated January 31 1955 denied the charges On February 2 1955 the General Manager made an order dismissing the respondents 1 to 4 from service on the ground that 117 920 they had disobeyed his order of transfer and thus they were guilty of misconduct under Standing Order No LIa The Labour Union thereafter raised an industrial dispute and the Government of UP by its notification dated November 7 1955 referred the following issue for decision to the State Industrial Tribunal for U P at Allahabad Whether the employers have wrongfully andor unjustifiably terminated the services of Sarva Shri Zia Uddin Raisuddin Shafiquddin and Ahmed Bux for refusal to obey the orders of tranfer to Ms Pannijee Sugar and General Mills Co Bulandshahr If so to what relief are the workmen entitled The State Industrial Tribunal by its order dated February 6 1956 made its award holding that the management was within its rights and that as the respondents 1 to 4 had disobeyed the order of the management they were properly dismissed by the management The said respondents through their Union respondent No 5 perferred an appeal to the Labour Appellate Tribunal of India and the said Appellate Tribunal held that the management had no right to transfer the respondents 1 to 4 to the new factory and therefore the order dismissing them was illegal The management has preferred the present appeal against the said order of the Labour Appellate Tribunal Learned counsel for the appellant raised before us the following two questions 1 The right to transfer an employee by an employer from one of his concerns to another is implicit in every contract of service 2 the State Industrial Tribunal having held that both the concerns ie the mills at Amroha and the mills at Bulandshahr formed one unit the Appellate Tribunal had no jurisdiction to set aside that finding under section 71 of the Industrial Disputes Appellate Tribunal Act 1950 To appreciate the first contention it is necessary to notice the undisputed facts in this case It is true that the partners of the Sugar Mills at Amroha own also the Sugar Mills at Bulandshahr but they were proprietors of the former Mills in 1946 whereas they purchased the latter mills only in the year 1951 and 921 started the same in Bulandshahr in or about 1955 The respondents 1 to 4 were employed by the owners of the appellant Mills at the Sugar Mills at Amroha at a time when they were not proprietors of the Sugar Mills at Bulandshahr It is conceded that it was not an express term of the contract of service between the appellant and the respondents I to 4 that the latter should serve in any future concerns which the appellant might acquire or start It is also in evidence that though the same persons owned both the Mills they were two different concerns In the words of the Appellate Tribunal the only connection between the two is in th identity of ownership and but for it one has nothing to do with the other It is also in evidence that an imported workman at Amroha is entitled to house rent fuel light and travelling expenses both ways while at Bulandshahr the workmen are not entitled to any of these amenities The workmen at Amroha are entitled to benefits under the Kaul Award while those at Bulandshahr are not so entitled The General Manager EW1 in his evidence stated that the interim bonus of the Bulandshahr factory as ordered by the Government in November 1955 was Rs 1 1000 while for Amroha it was nearly 1 12 lacs He also stated that the bonus for last year at Amroha would be probably equal to II months wages and at Bulandshahr equal to about 4 or 5 days wages It is also in evidence that apart from the disparity in the payment of bonus the accounts are separately made up for the two mills It is clear that the two mills are situated at different places with accounts separately maintained and governed by different service conditions though they happened to be under the common management therefore they are treated as two different entities The question of law raised in this case must be considered in relation to the said facts The argument of the learned counsel for the appellant that the right to transfer is implicit in every contract of service is too wide the mark Apart from any statutory provision the rights of an employer and an employee are governed by the terms of contracts between them or by the terms necessarily implied therefrom It is 922 conceded that there is no express agreement between the appellant and the respondents where under the appellant has the right to transfer the respondents to any of its concerns in any place and the respondents the duty to join the concerns to which they may be transferred If so can it be said that such a term has to be necessarily implied between the parties When the respondents 1 to 4 were employed by the appellant the latter was running only one factory at Amroha There is nothing on record to indicate that at that time it was intended to purchase factories at other places or to extend its activities in the same line at different places It is also not suggested that even if the appellant had had such an intention the respondents I to 4 had knowledge of the same Under such circumstances without more it would not be right to imply any such term between the contracting parties when the idea of starting new factories at different places was not in contemplation Ordinarily the employees would have agreed only to serve in the factory then in existence and the employer would have employed them only in respect of that factory The matter does not stop there In the instant case as we have indicated the two factories are distinct entities situated at different places and to import a term conferring a right on the employer to transfer respondents I to 4 to a different concern is really to make a new contract between them The decisions cited at the Bar do not in the least sustain the appellant s broad contention In Alexandre Bouzourou vs The Ottoman Bank 1 the appellant was an employee of the respondent bank The bank transferred him from one branch to another branch of the bank situated in different towns As he refused to comply with the order of transfer he was dismissed Thereafter he filed a suit to recover damages from the bank for wrongful dismissal It was argued before the Judicial Committee that under the terms of his contract of service the sphere of his employment included only the head office and not the branches of the bank The evidence in that case showed that transfer was one of the ordinary incidents of the bank s employment being usually concurrent with an 1 ATR 119 923 increase of salary and responsibility and suggest no more than that the bank considered their officials convenience where possible Indeed the appellant therein did not even suggest in his correspondence thatthe transfer was a breach of his contract On these circumstances the Judicial Committee observed as follows at p 119 From the point of view of proper organization of their staff it is difficult to assume that the Bank would willingly agree that their employees should not be bound to serve outside the place where the contract was made except with their consent and in their Lordships opinion such a condition of the contract would require to be clearly established The essential distinction between that case and the present one is that there the bank with its branches was one unit and the records clearly indicated that transfer was one of the ordinary incidents of service in the Bank In such circumstances when a person joined such a service the Privy Council found it easy to imply a term of transfer That decision is therefore not of any relevancy to the present case In Mary Anamalai Plantation Workers Union vs Seliparai estate 2 labour was recruited in the plantations without any differentiation being made between factory and field workers and it had been the common practice prevailing for several years to transfer the factory workers to the field and vice versa according to the exigencies of work A worker who had been appointed in such a plantation was transferred owing to mechanisation in the factory from the factory to the field The Labour Appellate Tribunal of India held that in the circumstances of the case the liability to be so transferred must be deemed to be an implied condition of service So too in Bata Shoe Company Ltd vs Ali Hasan Industrial Tribunal Patna Ors 3 transfer of an employee in the circumstances of that case from one post to another was held not to be an alteration of any service condition within the meaning of section 33 of the Industrial Disputes Act That was a case of a management employing a worker in one concern and transferring him from one post to 2 1956 ILLJ 343 3 924 another In such a case it was possible to imply the condition of right of the management to transfer the employee from one post to another section N Mukherjee vs Kemp Co Ltd 4 was a case arising out of section 23 of the Industrial Disputes Appellate Tribunal Act 1950 The complaint there was that an employee was transferred by the management with a view to victimize him and that it amounted to alteration in the conditions of employment It was held that if an employer employed a person it was implicit in the appointment that he could be transferred to any place where the business of the employer in the same line was situated unless there was an express condition to the contrary in the contract of employment In that case the worker was employed by Kemp Co Limited which had branches in different places The decision assumed that the business was one unit and that the only question raised was that he should not be transferred to a place different from the place where he was actually discharging his duties These observations must be limited to the facts of that case It is not necessary to multiply the citation for the other decisions relied on by the learned counsel for the appellant pursue the same reasoning followed in the aforesaid cases We have referred to the decisions only to distinguish them from the present case and not to express our opinion as to the correctness of the decisions therein It would be enough to point out that in all the said decisions the workers had been employed in a business or a concern and the question that arose was whether in the circumstances of each case the transfer from one branch to another was valid or amounted to victimization None of these decisions deals with a case similar to that presented in this appeal namely whether a person employed in a factory can be trans ferred to some other independent concern started by the same employer at a stage subsequent to the date of his employment None of these cases holds as it is suggested by the learned counsel for the appellant that every employer has the inherent right to transfer his employee to anotherplace where he chooses to start 4 925 a business subsequent to the date of the employment We therefore hold that it was not a condition of service of employment of the respondents either express or implied that the employer has the right to transfer them to a new concern stared by him subsequent to the date of their employment The respondents also relied upon a Government Order No 6122 STXXXVI A 640S T 1953 in support of their contention that the order of transfer was bad By this Order the Government of U P had directed that the employment of seasonal workmen in all vacuum pan sugar factories in the Uttar Pradesh should be governed by the rules contained in the annexure thereto Rule I in the said annexure is to the following effect A worker who has worked or but for illness or any other unavoidable cause would have worked in a factory during the whole of the second half of the last preceding season will be employed in this season in such factory This rule has no relevancy to the question raised in the present case This rule only enjoins upon an employer to employ a worker in the circumstances mentioned therein in the same factory in which he was working in the previous season during the next season also This does not prevent the employer to transfer an employee if he has the right to do so under the contract of service or under any statutory provisions We have already held that the employer in the present case has no such right Lastly it is said that the Appellate Tribunal had no jurisdiction to set aside the finding of the State Industrial Tribunal as it did not give rise to any substantial question of law within the meaning of section 71 of the Industrial Disputes Appellate Tribunal Act 1950 The question raised was one of law namely whether the appellant had the right to transfer the respondents 1 to 4 from one concern to another A substantial question of law involved between the parties and that raised also an important principle governing the right of an employer to transfer his employees from one concern to another of his in the circumstances of this case We therefore hold that 926 a substantial question of law arose in the case and that it was well within the powers of the Labour Appellate Tribunal to entertain the appeal In the result the appeal fails and is dismissed with costs Appeal dismissed

The appellants were appointed under an agreement in writing by the Governor General as agents for purchasing and supplying ghee required for the Army personnel with effect from October 1 1937 After the outbreak of the World War 11 there was an enormous increase in the demand of ghee by the Government and the agreement was revised by mutual consent on June 20 1942 and the original rates of payment were scaled down On December 6 1943 the appellants made a representation to the Government for enhancing the rates as conditions had become 794 abnormal According to the appellants they were given assu rances that their claims would be favourably considered by the Government and relying on these assurances they continued to supply ghee in quantities demanded by the Government incurring heavy extra expenditure The Government did not enhance the rates and the matter was referred to arbitration under the agreement of 1937 Before the arbitrators the appellants contended that the agreement Of 1942 was not binding upon them and claimed payment on the basis of the agreement Of 1937 and in the alternative claimed payment on the basis of increased rates of mandi charges additional buying remuneration and contingency charges These claims were resisted by the Government and it was denied that any assurances were given by the Government to enhance the rates The arbitrators incorporated the points of contest in the form of issues By an award dated May 2 1954 the arbitrators rejected the primary claim of the appellant holding that the agreement of 1942 was binding On the alternative claim they awarded a sum of money for loss suffered by the appellants on account of establishment and contingencies and another sum for mandi and financing charges The award was filled in the Court of the Commercial Sub judge Delhi and the Government applied to have it set aside The Sub judge held that though there was an error on the face of the award in ordering the payment of additional remuneration and financing and overhead charges the award could not set aside as specific questions had been expressly referred for adjudication to the arbitrators and the award was binding on the parties On appeal the High Court held that no specific questions of law had been referred to the arbitrators and that the award was vitiated by errors apparent on the face of the award Held that the award was liable to be set aside because of an error apparent on the face of the award An arbitration award may be set aside on tile ground of an error on the face of it when the reasons given for the decision either in the award or in any document incorporated with it are based upon a legal proposition which is erroneous But where a specific question is referred the award is not liable to be set aside oil the ground of an error on the face of the award even if the answer to the question involves an erroneous decision on a point of law In the present case there was a general reference and not a specific reference on any question of law Champsey Bhara and Co vs Jivraj Balloo Spinning Weaving Co Ltd L R 50 1 A 324 In the matter of a arbitration between King and Duveen LR 1913 2 KB1 32 and Government of Kelantan vs Duff Development Co Ltd L R relied on The contract provided for payment of charges at rates specified therein and the arbitrators could not ignore the express covenants between the parties and award amounts not agreed to be 795 paid A contract is not frustrated merely because the circumstances in which it was made are altered The courts have no general power to absolve a party from the performance of his part of the contract merely because its performance has become onerous on account of an unforseen turn of events Constantine s case Hirji Mulji vs Cinemas Ltd Steamship Co Ltd British Movietonews Ltd vs London and District Cinemas L R and Parki son Co Ltd vs Commissioners of Works 1949 2 K B D 632 referred to British Movietonews Ltd vs London and District Cinemas Ltd 1951 1 KBD 190 disapproved The award which ignored the express terms of the contract prescribing the remuneration payable could not be justified as proceeding upon the basis of quantum meruit Compensation quantum meruit may be awarded for work done or services rendered only when the price thereof is not fixed by a contract For work done or service rendered pursuant to the terms of a contract compensation quantum meruit cannot be awarded where the contract provides for the consideration payable in that behalf

Civil Appeal No 34 of 1956 Appeal from the judgment and order dated February 19 1954 of the former Nagpur High Court in Misc Appeal No 164 of 1949 arising out of the judgment and decree dated November 22 1949 of the First Additional District Judge Akola in Civil Suit No 12 A of 1948 C B Agarwala and Ganpat Rai for the appellant section K Kapur and B P Maheshwari for the respondent January 21 The Judgment of the Court was delivered by KAPUR J KAPUR J This is an appeal against the judgment and order of the Nagpur High Court and arises out of proceedings under the Indian The appellant in this case is Champalal and the respondent is Samarath Bai the widow of Lal Chand The parties who are Jains belong to Balapur in the district of Akola in the previous State of Madhya Pradesh The relationship of the parties is shown by the following pedigree table 813 Phool Chand Nanak Chand Khushal Chand Sundarlal Bulakhidas Lalchand Deolal jivanbai Samarathbai Babibai Ratanbai Rasiklal Vijay Kumar Ishwardas Baglal Digamber Das Champalal Sakarchand Vinaychand Vimalchand On September 14 1944 Lal Chand made a will by which he authorized his wife Samarath Bai to adopt Champalal and made certain disposition of his property Lal Chand died on September 26 1944 On October 20 1944 the appellant made an application under section 192 of the Succession Act to the First Additional District Judge of Akola for the appointment of a Curator This was Misc No 3 of 1944 Notices were issued to the respondent Samarath Bai and her daughters The will was registered on December 29 1944 On January 10 1945 an arbitration agreement was entered into between the appellant and the respondent and on January 16 1945 both parties applied for stay of proceedings in the case Misc No 3 of 1944 and the case was adjourned to March 28 1945 and then was adjourned to June 18 1945 On that date the arbitrators made an application to the First Additional District Judge for extension of time for four months for making the award This application was opposed by the appellant but the court gave three months time on July 26 1946 The award was made on October 18 1946 On October 21 it was filed by the arbitrators in the court of the First Additional District Judge who on October 30 gave to the parties ten days time for objections On November 15 814 1946 the appellant filed objections to the award and on January 31 1947 the respondent applied for a judgment in terms of the award and for a decree The award was unregistered and therefore at the request of the respondent it was handed over for getting it registered to Mithulal who was an attorney of two of the arbitrators Magandas and Sakarchand On February 7 1947 he presented it for registration to the Sub Registrar but the Sub Registrar returned it as it was not accompanied by a list and particulars of the property covered by the award On February 15 1947 the list and particulars signed by Mithulal were supplied and the award was represented for registration by Mithulal As he was an attorney of only two of the three arbitrators the Sub Registrar registered the document on March 26 1947 in regard to said arbitrators and refused it qua the third arbitrator Bhogilal But under the orders of the Registrar the document was registered in regard to Bhogilal also and it was refiled on July 21 1948 in the Court of the First Additional District Judge He ordered the two proceedings one under section 192 of the Succession Act and the other under the to be separated and the proceedings under the were ordered to be registered as a suit on August 14 1948 and on August 30 the court ordered a proper application as required under the High Court Rules to be filed On September 15 1948 an application under section 142 of the was filed On October 141948 the appellant filed an application for setting aside the award and therein raised various objections which were rejected and on November 22 1949 a judgment was passed in accordance with the terms of the award followed by a decree Against this order the appellant took an appeal to the High Court which was dismissed on February 19 1954 The High Court held that the application filed by the respondent dated September 15 1948 under section 142 of the was not within time but the original application filed by the arbitrators on October 21 1946 was within time that no objection could be taken to the award on the ground that 815 there were two awards one by the arbitrators and the other by Mithulal who had added to the award by giving the list and particulars that the First Additional District Judge was authorised to extend time for making an award an the application of the arbitrators and he was properly seized of the case that no misconduct had been proved and that no illegality had been established and that the appellant did not get anything under the will except on adoption nor was he until then constituted an executor Against this judgment this appeal has been filed on a certificate by the High Court In appeal before us counsel for the appellant raised six points 1 the filing of the award was not within time as no application was made under section 14 within the time allowed by the Limitation Act 2 that the award required registration and was not registered in accordance with law and the mere fact that it was registered does not clothe it with legality 3 the First Additional District Judge had no jurisdiction to grant three months extension of time to the arbitrators for making the award which was granted on July 26 1946 4 that the arbitrators were guilty of mis conduct 5 that the award is in excess of the power given to the arbitrators under the agreement of arbitration and 6 even if the award was proper and legal the respondent had refused to adopt the appelant and therefore the decree should have been as provided by the award on the happening of that contingency and in the alternative the First Addi tional District Judge who passed the decree had no jurisdiction to take subsequent events into consideration In our opinion points nos 1 2 and 3 are wholly without substance The award was made on October 18 1946 and the arbitrators filed it in the court of the First Additional District Judge and they also gave notice to the parties by registered post informing them of the making of the award It has not been shown as to how the filing of the award is barred by Iimitation Article 178 of the Limitation Act which was 104 816 relied upon by the appellant applies to applicationmade by the parties and not to the filing of the award by the arbitrators The second question that the award required registration and could not be filed by the arbitrators before it was registered is equally without substance The filing of an unregistered award under section 49 of the Registration Act is not prohibited what is prohibited is that it cannot be taken into evidence so as to affect immoveable property falling under section 17 of that Act That the award required registration was rightly admitted by both parties It was contended by counsel for the appellant that under section 21 of the Registration Act and the rules made tinder section 22 a description of the property was necessary and as that was supplied through Mithulal who according to counsel did not have the necessary authority to do so the award must be taken to be an incomplete document which could not be registered The High Court has found that in the circumstances of this case lists were not necessary and therefore anything done by Mithulal whether authorised or not will not affect the legality of the registration The third point that the First Additional District Judge before whom the application was made for extending the time for making the award had no jurisdiction is also not sustainable It so happened that the court which had jurisdiction to entertain applications for the filing of awards was the same before whom the application under section 192 of the Succession Act had been filed If that court was the proper court in which such applications were to be made then no defect can be found in the application being made to that court or that court giving such extension The ground on which the charge of misconduct of the arbitrators was founded was that the arbitrators had before hearing the parties decided amongst themselves that they would give a particular award The High Court has found that this charge has not been proved It was based on a statement of the appellant that one of the arbitrators Magandas had suggested to him that he the appellant should agree to give to 817 the respondent an absolute estate in a portion of the property and if that was done the dispute would be settled but he was agreeable only to giving a life estate and the arbitrators then told him that in that case they would give an absolute estate to the respondent As the High Court has pointed out this fact was not pleaded in the first application of objections filed by the appellant and it was in its opinion an after thought Reliance was also placed on the following statement of Magandas in cross examination as PW 3 We had decided as to how the award was to be made by us but as these two persons did not come we made the application to the Court for extension of time But the explanation of the other arbitrators was that they wanted to bring about an amicable settlement and had gone to Balapur and then to Akola The appellant and his brother had promised to follow them there but as they did not turn up an application was made for extension of time There is nothing wrong in what the arbitrators did and it cannot be said that any inference of misconduct can be drawn from this evidence It was then submitted that the award was in excess of the powers given to the arbitrators and was therefore invalid This point was divided into three points i that the reference itself was invalid and therefore the award was a nullity ii that the award was in excess of the powers given to the arbitrators and iii the award was contrary to law on the face of it In support of point No 1 it was submitted that the appellant having accepted the office of an executor could not enter into an arbitration concerning the execution authority to adopt or the property covered by the will It is unnecessary to decide the vitality of this point because according to the true construction of the will the appellant was not to become the executor till he had been adopted Paragraph 10 of the will was as follows I have this day made as above the wilt of my estate Under this will I am authorising the said 818 Champalal Ishwardas to execute the same I have appointed him the executor of this will Under the said will the said Champalal alone shall be the full owner of my entire movable and immoveable property and the executor of the will after my death if I adopt him during my lifetime or even if my wife adopts him after my death The words under the said will the said Champalal shall be the executor of the will after my death if I adopt him during my lifetime or even if my wife adopts him after my death show that the appellant was to become executor after his adoption and as he was not adopted he cannot be the executor and therefore the argument that an executor cannot enter into arbitration does not arise and we do not think it necessary to decide this matter beyond saying that the appellant was not constituted an executor eo nominiee but was to be an executor if he was adopted Similarly the question whether the appellant after accepting the office of an executor had renounced it or a discharge was necessary under section 301 of the Succession Act does not arise Points ii and iii may be taken up together lt was argued that the award is in excess of the power given to the arbitrators because it determined the rights of the appellant as an executor and because it was in excess of para No 1 of the arbitration agreement which provided that the arbitrators should maintain the gifts to charities and the gift in favour of the testator s daughters and others lt is difficult to see how the award has lost sight of this paragraph As a matter of fact the arbitrators have maintained the gifts to charities and other gifts made by the testator in the will and they have clearly stated that the person becoming the owner of the deceased s property will have to provide for the maintenance of the persons named in the will and pay the charities therein enumerated Another objection raised was that according to the arbitration agreement the arbitrators had to enforce the will and not to act outside it and also they could not impose a limit of time for adoption How they 819 have acted dehors the will has not been shown The contention raised was that according to the arbitration agreement the arbitrators had to decide in what proportion the parties to the dispute were to enjoy the estate of the testator and not that one of them will get nothing at all As we read paragraph 10 of the will and the High Court also so construed it the appellant could get the property of the testator only if he was adopted by the testator or his widow the respondent It is not correct therefore to read the term of the arbitration agreement as meaning that the appellant was to get at least some portion of the property irrespective of his being adopted Paragraph 2 of the arbitration agreement shows that they had also to decide that in case the respondent adopted the appellant what should be the respective rights of the parties in the estate The arbitrators decided that the respondent should adopt the appellant according to Hindu Law within four months before February 1947 and if the respondent failed so to do within the time above specified the appellant would be the heir and executor of the deceased s entire property and the respondent would he entitled to Rs 200 per mensem as maintenance But if in spite of the respondent s readiness to adopt the appellant refused to be adopted within four months he would not get any rights in the property of the deceased nor would he be the executor As it was specifically stated in the arbitration agreement that the consequences of the adoption or non adoption were to be decided by the arbitrators they rightly laid down what was to happen if the adoption did not take place and also provided that if it was due to the default of the appellant one consequence will follow and if it was the default of the respondent another consequence would follow The words of the agreement In the same way the arbitrators may also decide that in case it is decided that the party No 2 should adopt the party No 1 and if that thing is accepted by the party No 1 and in case the adoption takes place what shall be the rights of both the parties and how they will stand in respect of the property 820 mean that the power to limit the time was implicit because the happening of these events could not be left for a limitless period The courts below have found on the evidence that the appellant was not prepared to be adopted We have been taken through the evidence and we find no reason to differ from the opinion of the High Court that the appellant was not prepared to be adopted His attitude in regard to that matter is clear from ground No 37 of the Grounds of Appeal taken by him in the High Court which was The lower Court erred in holding that Champalal was not within his rights in consenting to get adopted by Mt Samarathbai within the time fixed by the arbitrators without prejudice to his objections against the award and the courts have rightly come to that conclusion In this view of the matter the alternative argument of taking subsequent events into consideration does not arise It was also argued that by making the award the arbitrators had perverted the line of succession All that the award has stated is that in case the adoption takes place the respondent would receive I share of the property of the testator and it would form her stridhana How that has perverted the line of succession is difficult to understand There is no force in this appeal and it must there fore be dismissed with costs Appeal dismissed

The appellant a resident and ordinarily resident in India carried on trade in Colombo in grains and foodstuffs for cattle For the relevant assessment years the Income tax Officer rejected the accounts produced by the appellant on the grounds inter alia that there was absence of vouchers and that the stock account and the manufacturing account had not been kept or produced and he then made an estimate of the profits The Appellate Tribunal also agreed with the Income tax Officer and held that the correct profits could not be deduced from the books produced by the assessee and that therefore the proviso to section 13 of the 11959 II LLJ 38 886 Indian income tax Act 1922 applied Having taken into consideration all the relevant factors it computted the profits at 15 on grains imported from India and 12 12 on grains purchased in Ceylon and in support of its computation it pointed out that in certain cases which had come to its notice the rates of profits went Up to 20 The appellant challenged the validity of the assessment on the ground that the principle of natural justice had been violated in that the Tribunal had taken into consideration the rate of profit in other cases without giving an opportunity to the appellant to explain those cases and relied upon Dhakeshwari Cotton Mills Ltdv The Commissioner of lncome tax WestBengal 1I955 i SCR 941 He also urged that the non production of stock account was not such a defect as to entitle the Taxing Authorities to reject the books and apply the proviso to section 13 of the Act Held1 that the percentage of profits made by traders in other cases was not the basis made by the Tribunal for arriving at any conclusion as to the percentage at which income should be computed in the present case but was merely an ancillary support to that conclusion and that Dhakeshwari Cotton Mills Ltd vs The Commissioner of Income tax West Bengal was not applicable to the case 2that the keeping of a stock register is of great importance because that is a means of verifying the assessee s accounts by having aquantitative tally that if after taking into account all the materials including the want of a stock register it is found that from the method of accounting correct profits of the business are not deducible the operation of the proviso to section 13 of the Act would be attracted Ghansyam Das Permanand vs Commissioner of Income tax CP Beray Bombay Cycle Stores Company Ltd vs Commissioner of Income tax and Commissioner of Income tax vs McMillan and Co 1958 SCR 689 relied on

vil Appeal No 64 of 1951 On appeal from the Judgment and 646 Decree dated the 16th April 1948 of the High Court of Judicature at Allahabad Malik CJ and Prasad J in First Appeal No 358 of 1943 arising out of the ent and Decree dated the 22nd February 1943 Judgment and Decree dated the 22nd February 1943 of the Court of the Additional Civil Judge Benares in Original Suit No 33 of 1938 Gopi Nath Kunzru K B Asthana with him the appel lants Krishna Shankar for the respondents April 25 The judgment of the Court was delivered by DAs J This appeal arises out of an application by five out of ten judgment debtors made under section 8 of the UP Debt Redemption Act No of 1940 for ascertaining the amount due by them in accordance with the provisions of sections 9 and 10 of that Act and for amending the decree passed on March 31 1939 by the Additional Civil Judge Banaras in OS No 33 of 1938 The facts materi al for the purposes of this appeal may now be briefly stated By a mortgage deed executed on June 22 1922 Madho Ram Sita Ram Jai Ram aud Lakshman all sons of Pandit Raja Ram Pant Sess mortgaged cer tain immovable properties in favour of Damodarji son of Kamta Nathji owner of the Kothi Joshi Shivanath Vishwanath for the due repayment of the sum of Rs 8000 advanced on that date by a cheque together with interest thereon at 12 annas per cent per mensem with quar terly rests On July 28 1931 the said mortgagors and their sons executed a mortgage over the same properties in favour of Kothi Kamta Nathji Vishwanathji for the due repayment of Rs 3000 with interest thereon at twelve annas per cent per mensem with quarterly rests It is recited in the deed that the sum of Rs 8000 was advanced on this date by a cheque and that the amount was utilised in paying up the amount due under the earlier 647 mortgage deed to Damodarji proprietor of Kothi Shivanath Vishwanath In 1935 the UP Agriculturists Relief Act No XXVII of 1934 came into force On May 1938 Girjadharji son of Damodarji and Murlidharji minor son of Gangadharji who was another son of Damodarji filed suit No 33 of 1938 in the Court of the Additional Civil Judge Banaras against the mortgagors and their sons for the recovery Rs 9477 2 0 due as principal and interest up to date of suit and for further interest under the mortgage deed of July 28 1931 It appears from the judgment of the High Court under appeal that in their written statement the mortgagors claimed the benefit of the UP Agriculturists Relief Act No XXVII of 1934 The plaintiffs contended that the mortgagors were members of a joint Hindu family and as Sita Ram one of the mortgagors was assessed to income tax the mortgagors were not agriculturists as defined in section 2 2 of that Act and therefore could not claim the benefit conferred on the agriculturists by that Act The trial Court by its judgment dated March 31 1939 held that though Sita Ram was assessed to incometax for the year 1931 32 the amount of such in cometax did not exceed the amount of cess payable on the land held by him and consequently the second proviso to section 2 2 did not apply to him and he was therefore an agriculturist and as the other mortgagors were also agricul turists all of them were entitled to the benefits under the Act Accordingly after scaling down the interest a sum of Rs 9497 14 1 was declared to be due for principal interest and costs up to March 31 1939 and a preliminary mortgage decree for sale was passed in that suit In 1940 the UP Debt Redemption Act No XIII of 1940 came into force On April 11 1942 five of the judgment debtors made an application under section 8 of this Act before the Additional Civil Judge Banaras who passed the decree In the petition it was stated that the debt was actually advanced in 1922 that the petitioners were agri culturists within 648 the meaning of Act XIII of 1940 that the decreeholders can only get interest at the reduced rate of Rs 4 8 0 per cent per annum from 1922 and that after adjustment of accounts nothing will be found outstanding against the petitioners The prayer was that an account of the money lending business be made from the beginning of 1922 and the decree in suit No 33 of 1938 be modified by reducing the amount due thereunder The decree holders filed a petition of objection asserting inter alia that the petitioners were by no means agriculturists that they and the respond ents Nos 3 to 7 were members of a joint Hindu family at the time of the execution of the mortgage deed of July 28 1931 that Sita Ram used to pay income tax at the date of the mortgage in suit and paid even at the time of the applica tion that all the members of the petitioners family were not agriculturists within the meaning of the Act and were therefore not entitled to the benefits thereof that the debt advanced under the mortgage deed of July 28 1931 was not a loan as defined in the Act and therefore the Act did not apply It will be noticed that although the judg ment debtors applicants specifically prayed for the accounts being taken from 1922 when the loan was said to have been actually advanced the decree holders in their petition of objection did not contest that position At the hearing of the application before the Additional Civil Judge the learned pleader for the decree holders admitted that with the exception of Sita Ram the remaining judgment debtors were agriculturists under Act No XIII of 1940 but that as Sita Ram was a party to the mortgage in suit they were not entitled to the benefit of the Act Two witnesses namely Suraj Mani Tripathi and Sita Ram were examined on behalf of the judgment debtors applicants Sita Ram stated that since 1907 he had been a teacher in Harish Chandra Intermediate College of Banaras that in 1930 his salary was Rs 90 per month that since February 1932 to 1936 he paid incometax and that after that he paid no in come tax 649 His evidence was corroborated by Suraj Mani Tripathi who was the Accountant of the College from 1930 to 1042 Referring to the College Acquittance Roll Suraj Mani Tripathi deposed that the pay of Sita Ram was Rs 90 per month throughout 1930 that in 1930 no income tax was levied that in 1931 also his salary was Rs 90 per month and that no income tax was deducted in 1931 too that the first deduction of in come tax from his salary was made in February 1932 No rebutting evidence was adduced by the decree holders on the hearing of the application under section 8 of the Act of 1940 The income tax assessment form filed during the trial of the mortgage suit and marked as exhibits is dated Febru ary 9 1933 and shows that on that date Sita Ram was as sessed at Rs 1 14 0 as income tax on Rs 180 for the year 1931 32 By his judgment delivered on February 22 1943 the Additional Civil Judge found that Sita Ram was not assessed to income tax either at the date of the application under section 8 or at the date of the mortgage of 1931 and there fore held that the applicants were agriculturists and that the case related to a loan as defined in Act XIII of 1940 He then went on to discuss the question whether the account should be reopened from June 2 1922 when the earlier mortgage was executed or from July 28 1931 when the mort gage in suit was executed The decree holders who did not adduce any evidence on the hearing of the application evi dently relied on the evidence adduced in suit No 33 of 1938 After discussing that evidence the learned Judge came to the conclusion that so far as the judgment debtors were concerned the mortgagees in the two mortgages were one and the same He adversely commented on the non production of the books of account by the decree holders Re opening the accounts from June 2 1922 the learned Judge concluded that the whole of the principal and interest payable accord ing to the Act had been fully discharged and that nothing remained due by the judgmentdebtors under the decree in suit No 33 of 1938 He 650 accordingly declared that the decree stood discharged in full and directed a note to that effect to be made in the Register of Suits The decree holders having appealed to the High Court a Division Bench B Mallik CJ and Bind Basni Prasad J by its judgment delivered on April 16 1948 held that the question whether Sita Ram was or was not an agriculturist on July 28 1931 was not material as it was not denied that all the judgment debtors were agriculturists on the date of suit Reference was made by the learned Judges to section 21 and it was stated that by reason of that section the mortgage amount could be recovered only from the mortgaged property and not personally from the mortgagors and accord ingly the proviso to the definition of loan in section 2 9 of the Act had no application and it was therefore not necessary to show that the borrowers were agriculturists at the date when the advance was made and that as the judgment debtors were admittedly agriculturists at the date of the suit the case was fully covered by the Full Bench decision of that High Court in Ketki Kunwar vs Ram Saroop 1 The High Court therefore dismissed the appeal on this point alone The question whether the account should be reopened from 1922 or from 1931 was not raised by the decree holders at all he decree holders have now come up on appeal before us on a certificate granted by the High Court under section 110 of the Code of Civil Procedure Sri GN Kunzru appearing in support of this appeal has strongly questioned the correctness of the Full Bench deci sion relied on by the High Court and the interpretation put by the High Court on section 21 and section 29 of the Act As we think this appeal can be decided on a simpler ground we do not consider it necessary on this occasion to express any opinion on either of these questions which are by no means free from doubt 1 ILR 1943 All 35 AIR 1942 All 390 1942 A LJ 578 651 The present application has been made under section 8 of the U P Debt Redemption Act 1940 subsection 1 of which omitting the proviso runs as follows Notwithstanding the provisions of any decree or of any law for the time being in force an agriculturist or a workman liable to pay the amount due under a decree to which this Act applies passed before the commencement of this Act may apply to the Civil Court which passed the decree or to which the execution of the decree has been transferred for the amendment of the decree by reduction according to the provisions of this Act of the amount due under it and on receipt of such application the Court shall after notice to the opposite party calculate the amount due from the appli cant in accordance with the provisions of sections 9 and 10 and shall amend the decree accordingly It is clear from the wording of the sub section that there are three pre requisites for exercise of the right conferred by it namely 1 that the application must be by an agriculturist and 2that that agriculturist must be liable to pay the amount due under a decree to which this Act applies and 3 that that decree was passed before the commencement of this Act That the judgment debtors appli cants were agriculturists at the date when suit No 33 of 1938 was filed and also in 1942 when the application under section 8 was made is conceded by Sri GN Kunzru The decree in that suit was passed on March 31 1939 which was well before the commencement of the Act The only question that remains is whether the amount was due under a decree to which the Act applies Under section 26 of the Act the phrase decree to which this Act applies means a decree passed before or after the commencement of this Act in a suit to which this Act applies Section 217 defines the phrase suit to which this Act applies as meaning any suit or proceeding relating to a loan The question then arises was the decree under which the judgment debtors applicants are liable passed in a suit 652 relating to a loan Loan is thus defined in sec tion 29 Loan means an advance in cash or kind made before the first day of June 1940 recoverable from an agriculturist or a workman or from any such person and other persons jointly or from the property of an agriculturist or workman and includes any transaction which in substance amounts to such advance but does not include an advance the liability for the repayment of which has by a contract with the borrower or his heir or successor or by sale in execution of a decree been transferred to another person or an advance by the Central or Provincial Government to make advances or by a co operative society or by a schedule bank Provided that an advance recoverable from an agricul turist or from an agriculturist and other persons jointly shall not be deemed to be a loan for the purposes of this Act unless such advance was made to an agriculturist or to an agriculturist and other persons jointly In order to be a loan the advance must be recoverable from an agriculturist The word recoverable seems prima facie to indicate that the crucial point of time is when the advance becomes recover able ie when the amount advanced becomes or falls due Under the mortgage of 1931 the date of redemption was 6 years from the date of execution ie in July 1937 Sri Kunzru concedes that Sita Ram was not as sessed to income taxsince 1936 Assuming but without deciding that the proviso to section 2 9 applies and that in order to be a loan it must be shown that the advance was made to one who at the date of the advance was an agriculturist as defined in section 23 of the Act the question has yet to be answered namely had Sita Ram ceased to be an agriculturist by reason of clause b of the provi so to section 23 that is to say by reason of his being assessed to income tax on July 28 1931 According to the evidence of Surai Mani Tripathi and Sita Ram 653 income tax was first deducted at the source in the month of February 1932 by the College authorities and the actual assessment was made on February 9 1933 Therefore Sita Ram was not assessed to incometax on July 28 It is not disputed that the taxable minimum was reduced from Rs 2000 perannum to Rs 1000 per annum by the Indian Finance Supplementary ExtendingAct 1931 which was enacted on November 26 1931 Therefore at the date of the advance ie on July 28 1931 Sita Ram Whose salary was below Rs 2000 per annum was not only not actually assessed to in come tax but was not even liable to such assessment The evidence of Suraj Mani Tripathi shows that the first deduc tion of incometax out of the salary was in the month of February 1932 and the income tax assessment form for 1931 32 ExS shows that tax was assessed on Rs 180 which was evidently salary for February and March 1932 being the last two months of the assessment year The position therefore is that Sita Ram was not assessed to income tax at the date of the advance in 1931 or on the due date under the deed ie in July 1937 or on the date of suit in 1938 or on the date of the application under section 8 in 1942 It consequently follows that he was an agriculturist on all these dates The other judgment debtors were admittedly agriculturists Therefore the application under section 8 was made by persons who were all agriculturists and who were liable to pay under a decree to which the Act applies ie under a decree passed in a suit relating to a loan as defined by section 29 The Courts below therefore were right in their conclusion that the judgment debtors applicants were entitled to the benefit of the Act Sri GN Kunzru finally submitted that in any case the accounts could not be taken from 1922 for the mortgagees under the two mortgages were different We have already pointed out that this point was not specifically taken in the decree holders petition of objection The trial Court held as a fact that so far as the judgment debtors were concerned the 654 mortgagees were the same in both the mortgages Although in the petition of appeal to the High Court it was alleged that the mortgagees were different and the accounts could not be reopened from 1922 that ground was not specifi cally urged before the High Court The determination of that question must necessarily involve an investigation into facts We do not think in the absence of a plea in this behalfin the decree holders petition of objection and also in view of their failure and neglect to raise this question before the High Court it will be right for this final court of appeal at this stage and in the circumstances of this case to permit the appellants to raise this question of fact The result therefore is that this appeal must stand dis missed with costs Appeal dismissed

The General Manager of the appellant Mills ordered the transfer of four workmen from the appellant mill to a new mill which had been purchased subsequently The only connection between the two mills was the identity of ownership and but for it one had nothing to do with the other The concerned workmen protested to the said order of transfer and did not acceed to the request thereupon they were served with notice for disobedience of standing orders and were called upon for explanation which the workmen did and thereafter they were dismissed from service The Labour Appellate Tribunal found that the management had no right to transfer the workmen to the new factory and therefore the order dismissing them was illegal The appellants came up by special leave before the Supreme Court and contended that the right to transfer an employee by an employer from one of his concerns to another is implicit in every contract of service The question is whether a person employed in a factory can be transferred to some other independent concern started by the same employer at a stage subsequent to the date of the employment Held that apart from any statutory provision the right of an employee and an employer are governed by the terms of contracts between them or by the terms necessarily implied therefrom but in the absence of an express agreement between the employer and employees it cannot necessarily be implied that the employer has the right to transfer the employee to any of its concerns in any place and that the employee has a duty to join the concern to which he may be transferred In the instant case it was not a condition of service of employment of the concerned workmen either express or implied that the employer had the right to transfer them to a new concern started by the employer subsequent to the date of the employment Alexandre Bouzourou vs The Ottoman Bank AIR 1930 PC 118 Mary Anamalai Plantation Workers Union vs Selali arai Estate 1956 ILLJ 243 and Bata Shoe Company Ltd vs Ali Hasan 1956 ILLJ 278 discussed

Civil Appeals Nos 717 to 742 of 1957 Appeals by special leave from the decision dated August 31 1956 of the Labour Appellate Tribunal of India Calcutta in Appeals Nos Cal 45 to 52 5961 63 65 78 and 98 of 1955 A B N Sinha and B P Maheshwari for the appellants in all the appeals L K Jha and D P Singh for respondents Nos 1 4 5 7 8 10 14 15 21 24 26 to 30 36 37 and 39 PK Chatterjee for respondents Nos 6 9 12 17 20 22 23 25 31 and 32 L K Jha and R C Prasad for the Intervener 1960 February 12 The Judgment of the Court was delivered by DAS GUPTA J These appeals are against the order of the Labour Appellate Tribunal of India at Dhanbad by which the Labour Appellate Tribunal confirmed the order of the Industrial Tribunal awarding a retaining allowance to unskilled workmen at a rate of 5 of the basic wages for the period of the off season of numerous sugar industries in Bihar The appellants companies the employers in these sugar industries also challenge the correctness of the order made by the Industrial Tribunal and confirmed by the Labour Appellate Tribunal awarding the workmen attending the proceedings before the Industrial Tribunal wages travelling allowance and halting allowance and further directing that the workmen attending these proceedings would be treated on special leave with pay for the period of such attendance As regards these orders the appellants contend that they run counter to the pronouncements of this Court in Punjab National Bank Ltd vs Sri Ram Kanwar Industrial Tribunal Delhi 1 This contention we are bound to say is correct Whatever might have been said in support of the view taken by the Tribunals in ordering payment of these allowances and of granting special leave to workmen attending proceedings of necessity if the question was res integra we are bound by the authority of Punjab National Bank s Case 1 to 1 126 992 hold that no such allowances are payable and no such order garanting leave may be made The order of the Tribunals below allowing travelling allowance and balting allowance and special leave to workmen attending proceedings of necessity must therefore be set aside Mr Sinha learned counsel for the appellants however has undertaken on their behalf that no restitution will be claimed of allowances which have already been paid This brings us to the main question in controversy in these appeals That question is whether retaining allowance should be paid to unskilled workers in these industries during the off season Disputes over this question have been going on for many years and committee after committee has wrestled with the problem for arriving at a formula acceptable to both employers and labourers but in vain In 1950 a reference as ultimately made to Mr Justice B P Sinha as he then was as regards these disputes about retaining allowance The award made by him provided for retaining allowance to skilled and semiskilled workmen but none to unskilled workmen Before the Appellate Tribunal who heard the appeal against that award the labourers and employers came to an agreement that no retaining allowance would be payable to the unskilled workmen This award was in operation for a period of two years but was thereafter determined by notice given by workmen followed up by similar notice by employers The reference out of which the present appeals arise included several other matters besides retaining allowance to seasonal employees but with those we are no longer concerned in these appeals Nor are we concerned with the question of retaining allowance to skilled and semiskilled workmen as that part of the award was not disputed by the present appellants On the question of retaining allowance the main contentions on behalf of the employers were that agriculture was the primary occupation of these persons and the employment in the sugar factory was merely a subsidiary occupation that the claim for retaining allowance was really in the nature of unemployment relief which it was the duty of the State and not the 993 industry to give that the relationship between the employers and these employees does not exist in off season and so no payment of anything in tile character of wages could possibly be claimed by the labour The Tribunal overruled all these objections It was of opinion that the working season in the factory completely covers the paddy harvesting season in North Bihar where most of the factories are situated so that the workmen the bulk of whom belong to the landless labourers class in the rural areas do not obtain employment in the off season It also pointed out that the seasonal employees are entitled to provident fund gratuity and also bonus and that their connection with the employers is not broken during the off season Accordingly it awarded retaining allowance of 5 to all unskilled employees to be paid every year at the beginning of the season when they report themselves to duty In agreeing with the Tribunal s conclusion the Appellate Tribunal pointed out further that the grant of seasonal allowance to unskilled labour in the industry would promote stability good relations and efficiency The question whether the retaining allowance should be paid to seasonal workers during the off season is one of great complexity A measure of the complexity is provided by the conflict in the view expressed by many committees who examined the matter While it will serve no useful purpose to set out these different views and the reasons given in support thereof it is proper to mention that with the exception of the Labour Enquiry Committee no committee ever recommended payment of retaining allowance to unskilled workmen though several of these recommended payment of such allowance to skilled and semi skilled workmen When the matter comes before the Tribunals for adjudication they have to decide the matter on the materials before them and it is not possible to derive much assistance from these reports of the committees The real difficulty in coming to a conclusion lies in the fact that while there is no doubt on the one hand of the plight of the seasonal workmen during the off season if they during such period remain 994 prartically unemployed there is some force also in the argument that it is neither just nor fair to treat these unfortunate people as the special responsibility of the particular industry or the factory where they are seasonally employed It is difficult not to agree with the opinion that the relief of unemployment by arranging suitable alternative employment or an alleviation of the distress of such seasonally unemployed persons by providing unemployment insurance benefits or by other modes is primarily the function of the government of the country To say that is however not to say that the industry where they are seasonally employed should look on unconcerned and play no part in alleviating the distress of the people who have contributed to the prosperity of the industry by their labour even though for only a part of the year While these considerations on either side are common to claims for retaining allowance for all seasonal workmen in all industries the special facts and circumstances of the categories of workmen and different local circumstances in different industries play an important part in deciding the question Thus skilled and semi skilled workers have often been able to put forward a strong case by pointing out that the specialized skill acquired by them makes it difficult for them to obtain suitable alternative employment in the off season Employers also often find it to their own interest to pay such categories of workmen some retaining allowance as an inducement to them to return to their factories when the season commences In the present appeals we are concerned with the case of unskilled workmen only It is obvious as has been noticed by both the Tribunals below that the employers feel that there is such a glut in the supply of unskilled labour in Bihar that retaining allowance or no retaining allowance a sufficient supply will be available for the industries That is why the employers contend that they ought not to be asked in an industrial adjudication to pay retaining allowance to unskilled labour We do no think it will be fair to say that merely because the employers have agreed to pay retaining allowance to skilled labour their opposition to such payment of 995 some such allowance to unskilled labour is unjustified In deciding whether the principles of social justice which it is the aim of industrial adjudication to apply justify the payment of retaining allowance to unskilled workmen in these sugar industries it is necessary to take into account a the opportunities of alternative employment in the off season that will be available to such workmen b the degree in which such workmen can be said to have become attached to the particular factory where they work c the likely benefit to the industry if such workmen are induced to return to the factory by the incentive of retaining allowance to be paid when the season commences d the capacity of the industry to bear the burden of retaining allowance The capacity of the appellant employers to bear the additional burden resultant from the 5 retaining allowance ordered by the Tribunals below has not been disputed before us The position is however far from clear as regards the existence of alternative opportunities available to unskilled labour in the Off season It was found and we must proceed on the basis rightly found that the working season of the sugar industry in North Bihar where most of the factories concerned in the present appeals are situated completely covers the paddy harvesting season That however is slender material for any conclusion as regards the existence of opportunities of alternative employment for these unskilled workmen The appellate Tribunal has said that the grant of seasonal allowance to unskilled labour in the industry will promote stability good relations and efficiency Except in so far as this conclusion is based on the general probability that newly recruited labour at the commencement of the season is likely to be less efficient and less disciplined than men who have worked in previous seasons this does not appear to have been based on any concrete evidence on the point Nor is it clear from the materials on the record that unskilled workmen employed in a particular factory consider themselves attached to that factory It appears to be clear that once the season is over the unskilled workmen cease to have any contractual relations with the employers and may rejoin on the com 996 mencement of the season or may not rejoin at their sweet will As regards the observations of the Tribunal that seasonal employees are entitled to the benefit of provident fund gratuity and also bonus which shows that in fact their connection with the employers is not broken the materials on the record Are too scanty for arriving at any definite conclusion In consideration of the nature and extent of the materials on the record we are of opinion that for alleviating the distress of unskilled workmen in these sugar factories with whom we are concerned in the present appeals a much better course will be to raise the wage structure with an eye to this fact that for a part of the off season at least when they remain unemployed than to pay a retaining allowance for the entire off season The appellant s counsel readily agrees that the fact that these unskilled workmen find employment in the sugar factories only for a few months and are in comparative difficulty in the matter of finding employment during the remaining months should be taken into consideration in fixing their wages We are informed that a Wage Board entrusted with the task of fixing the wages of the workmen concerned in these disputes is sitting at the present time The interests of both the employers and labour will we think be best served if instead of confirming the order made by the Appellate Tribunal as regards the retaining allowance the workmen will raise this question of raising their wages in view of the seasonal nature of their employment before this Wage Board We have no doubt that such a claim will be sympathetically considered by the Wage Board especially as the employers have through their counsel recognized before us the reasonableness of their claim The appellants have through their counsel also undertaken that they will not claim restitution of the amounts already paid as retaining allowance and further that they will continue to pay the retaining allowance for the next season half at the commencement of the season and the other half mid way during the season till the wages have been fixed by the Wage Board Accordingly we allow the appeals and set aside the order passed by the Labour 997 Appellate Tribunal of India Dhanbad as regards retaining allowance to unskilled workmen and also its order as regards payment of halting allowance and travelling allowance and wages to workmen attending proceedings of necessity of the Industrial Tribunal But as has been mentioned earlier the appellants have undertaken not to seek restitution as regards the halting or retaining allowance already paid and further that they will continue to pay retaining allowance for the next season half at the commencement of the season and the other half mid way during the season till the wages are fixed by the Wage Board There will be no order as to costs Appeal allowed

By means of a will the respondents husband autliorised her to adopt the appellant and the will was duly registered after the death of the testator The relevant portion of the will ran thus Under this will I am authorising the said Champalal Ishwardas to execute the same I have appointed him the executor of this will Under the said will the said Champalal alone shall be the full owner of my entire movable and immovable property and the executor of the will after my 811 death if I adopt him during my lifetime or even if my wife adopts him after my death The appellant applied for appointment of a curator under S192 of the Succession Act but subsequently the parties entered into an agreement for arbitration in the matter Three arbitrators were appointed and the time for making the award was extended by the Court on their application The arbitration agreement stated that the arbitrators had to decide what should be the respective rights of the parties in the estate in case the respondent adopted the appellant An award was made and filed in Court by the arbitrators to the effect that the respondent should adopt the appellant according to Hindu Law within four months failing which the appellant would be their and executor of the entire property of the deceased and the respondent would be entitled to a maintenance of Ks 200 per mensem But it in spite of the respondent s readiness to adopt the appellant refused to be adopted within four months he would not have any right in the property nor would he be the executor The award was at first unregistered and on being returned it was subsequently registered and refiled in Court The attorney of two of the arbitrators furnished to the Sub Registrar a list of the property covered by the award The proceedings under the Succession Act and the were then separated The respondent made an application under section 142 Of the and the appellant applied for setting aside the award The Court passed a decree in terms of the award The High Court on appeal by the appellant upheld the award On appeal by a certificate of the High Court the appellant contended that being an executor lie could not refer the matter to arbitration that the award was not filed within the time prescribed by the Limitation Act that it was not registered according to law that the First Additional judge had no jurisdiction to extend time for making the award that the arbitrators were guilty of misconduct and the award was in excess of the power given to them and that even if the award was proper and legal the respondent having refused to adopt the appellant the decree should have been as provided by the award on the happening of the contingency and the Court passing the decree had no jurisdiction to take subsequent events into consideration Held that the filing of the award by the arbitrators after notice to the parties was not barred by limitation as article 178 of the Limitation Act applied to applications made by the parties and not to the filing of the award by the arbitrators The award required registration but the filing of an un registered award under section 49 of the Registration Act was not prohibited what was prohibited was that it could not be taken into cvideince so as to affect immovable property falling under section 17 Of the Act 812 The Court had jurisdiction to entertain the application for filing the award and to extend time for filing it By the will the appellant could not get the property of the Bai testator nor was he constituted an executor except in the event of his being adopted and therefore he could enter into the arbitration agreement The agreement for arbitration having specifically stated that the consequences of adoption or non adoption were to be decided by the arbitrators they rightly laid down what was to happen if the adoption did not take place owing to the default of either party imposing a time limit Was implicit in the terms of the agreement and their award was not in excess of the power given to them by the arbitration agreement The award could not be treated as having perverted the line of succession by merely stating that if the adoption did not take place the respondent would receive I share of the testator s property and it would form her stridhan

Civil Appeal No 355 of 1958 Appeal by special leave from the decision dated December 12 1956 of the Labour Appellate Tribunal 983 of India Bombay in Appeal Bom Nos 77and 103 of 1956 A V Viswanatha Sastri section N Andley J B Dadachanji and Rameshwar Nath for the appellant B D Sharma for respondent No 1 1960 February 12 The Judgment of the Court was delivered by GAJENDRAGADKAR J The industrial dispute between the Bijay Cotton Mills Ltd hereinafter called the appellant and their workmen hereinafter called the respondents which has given rise to this appeal by special leave has gone through a protracted and tortuous course The respondents claimed that the scale of minimum wages and rates for contract works should be fixed for them because it was alleged that the payments made by the appellant were below the level of the bare subsistence wage The appellant did not accede to the demand thus made by the respondents and so on December 1 1950 the present dispute was referred for adjudication to the Industrial Tribunal consisting of Mr D N Roy under section 101 read with section 125 of the Act XIV of 1947 hereinafter called the Act Amongst the items thus referred for adjudication the first two were 1 that the mill employees be paid minimum wages and rates for contract works as shown in the two statements enclosed and 2 that dearness allowance be paid to all workers at the rate of Rs 35 permensem each and it may be increased or decreased according to rise or fall in prices In the present appeal we are concerned with the minimum wages It appears that Mr Roy found himself unable to fix any basic minimum wage and to support his view that it would be inexpedient to fix any minimum basic wage in the proceedings pending before him he referred to the fact that the question of fixation of the basic wage had been rendered enormously difficult by the state of industrial development in the State of Ajmer and by the unsteady and frequent fluctuations in prices Even so be considered several items of dispute referred to him and announced his award on October 5 1951 125 984 This award was challenged by the respondents before the Labour Appellate Tribunal The appellate tribunal there upon remanded the matter to Mr Roy with a direction that the issues as to the basic wage and as to dearness allowance should be specifically determined and appropriate directions issued on those two items This remand order was passed on October 20 1952 By the time the proceedings were taken up before the tribunal on remand Mr Roy was not available because he had ceased to be a District Judge in Ajmer In his place Mr Sharma was appointed Mr Sharma then made his award on September 8 1953 He fixed Rs 25 as basic wage and Rs 10 as minimum dearness allowance It appears that the award thus made by Mr Sharma was subsequently quashed on the ground that his appointment had not been duly published as required by the Act This order was passed on May 25 1955 Mr C Jacob was then appointed Industrial Tribunal He made his award on January 25 1956 By this award Mr Jacob in substance agreed with the view taken by Mr Sharma and fixed the basic wage at Rs 25 per mensem and the minimum dearness allowance at Rs 10 per mensem This award was directed to come into operation as from December 1 1950 This award was again challenged before the Labour Appellate Tribunal and the appellate tribunal has partly allowed the appeal preferred by the respondents and increased the basic wage from Rs 25 per mensem to Rs 30 per mensem The amount of the minimum dearness allowance has been affirmed at Rs 10 permensem This decision was announced by the appellate tribunal on December 12 1956 It is this decision that has given rise to the present appeal by special leave It is common ground that a Statutory Committee was appointed under Act XI of 1948 in respect of Ajmer on January 17 1952 Its report was submitted on October 4 1952 and a notification was issued in pursuance of the said report on October 7 1952 This notification has come into force as from January 8 1953 and in 985 consequence the basic minimum wage is now statutorily fixed at Rs 30 per mensem and dearness allowance at Rs 26 per mensem Thus it would be clear that there is no dispute between the parties as to what would be the basic wage and the minimum dearness allowance subsequent to January 8 1953 It appears that Mr Jacob who fixed the basic minimum wage at Rs 25 per mensem relied upon the fact that the said rate represented the basic minimum wage on the industry cum region basis He has observed that the basic minimum wage of an unskilled worker in the textile mills in Bombay was Rs 30 per mensem while at other places it varies from Rs 22 to Rs 30 per mensem Then he has also referred to the two charts Exhibits 4 A and 4 B produced by the respondents where the minimum basic wages were shown to range between Rs 21 to Rs 30 in Rajasthan According to him in Rajasthan minimum basic wages were Rs 26 per mensem and in Beawar which is the nearest centre from Bijaynagar the minimum wages for an unskilled textile worker in 1950 were Rs 25 per mensem That is one fact on which the tribunal relied The other fact on which reliance was placed was that there was an agreement between the parties in December 1949 under which the respondents were willing to work on the minimum wage of Rs 27 In fact it appears that both the appellant and the respondents had moved this Court for striking down the notification issued by the Ajmer Government by which the basic wage had been fixed at Rs 30 from January 8 1953 In Bijay Cotton Mills Ltd vs The State of Ajmer 1 it was urged on their behalf jointly that the relevant provisions of the were ultra vires and that it would be in the interests of the employer and the employees as well to strike down the impugned notification This Court rejected the said contention and upheld the validity of the Act as well as of the notification That however is another matter The agreement on which the respondents were prepared to work for the appellant was pressed into service by the appellant before the tribunal The tribunal was 1 19551 SCR 752 986 influenced by that fact in finally determining the amount of basic wage Two other facts may also have weighed The appellant started its textile business in 940 and had to face a serious calamity in 1943 as a result of which it suffered great loss and incurred liability to the tune of nearly rupees thirty lakhs Besides it was urged before the tribunal that a large section of the respondents belonged to the agricultural class and they can supplement their income from agricultural sources It is presumably on these grounds that Mr Jacob fixed the basic wage at Rs 25 per mensem The Labour Appellate Tribunal on the other hand has held that in the absence of satisfactory evidence on the record the statutory notification issued under the affords the best and safest guide in the matter of fixation of minimum wage It has observed that even though the notification can have no application prior to January 8 1953 still they were of opinion that the scales of wages fixed thereunder should not be departed from even for the period now in question That was all the more so because not much useful material was available on the record to fix the said wage It is on this ground that the appellate tribunal has increased the basic wage from Rs 25 to Rs 30 as prescribed by the notification It is this modification that is challenged before us by Mr A V Viswanatha Sastri on behalf of the appellant Mr Sastri contends that the method adopted by the tribunal was a scientific method it took into account a basic wage deducible on the industry cum region basis and this should not have been reversed by the appellate tribunal It however appears that in ascertaining the wages which labour in comparable trades was getting in the relevant region the tribunal has completely lost sight of the fact that in addition to the basic wages of Rs 26 Rs 43 was the average minimum dearness allowance paid to the workers and that made a very large difference in the total earnings of the workmen In determining the minimum basic wage the fact that a large amount of dearness allowance was being paid to employees in 987 other comparable occupations in the same region should not have been ignored by the tribunal and that is one infirmity on which the appellate tribunal was entitled to comment Besides if the appellate tribunal thought that more useful assistance can be derived from the statutory fixation of the minimum wage in Ajmer under the we do not see how we can interfere with the said view in the present appeal It would not be wrong to assume as the appellate tribunal did that in fixing the minimum wage in the area the Statutory Committee took into consideration all the relevant factors and came to the conclusion that that would be a fair minimum to prescribe On the other hand before the tribunal much relevant or useful evidence was not adduced and so the appellate tribunal could not be said to have committed any error of law in preferring to rely on the statutory notification rather than on the other unsatisfactory evidence produced in the case After all from January 8 1953 the minimum basic wage was statutorily fixed and so if for a couple of years before that date the same basic wage was awarded by the appellate tribunal it cannot be said that any error of law has been committed which should be corrected by us in our jurisdiction under article 136 of the Constitution Therefore we are not satisfied that any case for interference has been made out by the appellant on this point The next contention raised by Mr Sastri is that the appointment of Mr Jacob who made his award on January 25 1956 was invalid and Mr Sastri suggests that the said award as well as the decision of the appellate tribunal should be set aside and the matter should be sent back to Mr Sharma for disposal in accordance with law The argument is that Mr Sharma s appointment as Industrial Tribunal made on December 31 1954 was subsisting at the time when Mr Jacob was appointed on June 17 1955 and it is urged that when the same industrial dispute had already been referred to Mr Sharma it was not competent to the appropriate authority to refer the same dispute to Mr Jacob In support of this argument reliance is placed on the decision of this Court in The 988 State of Bihar vs D N Ganguly Ors 1 In our opinion there is no substance in this argument The notification on which the whole of the argument is based was issued on December 31 1954 for the sole purpose of correcting the error which had crept into the appointment of Mr Sharma by reason of the fact that his earlier appointment made on May 4 1953 had not been duly published and notified as required by the Act Indeed it was because of this infirmity that the award made by Mr Sharma on September 8 1953 had been quashed on May 25 1955 In reading the later notification this fact must be borne in mind No doubt the notification purports to refer to Mr Sharma for his adjudication the matter referred to him by the Labour Appellate Tribunal on remand it however appears as pointed out by the appellate tribunal that at the time when the proceedings after the remand commenced Mr Sharma s services were not available as he was apparently not in the service of the State and it was impossible to refer the matter to him for his adjudication That is the finding made by the appellate tribunal and this finding is fully justified Therefore since Mr Sharma s services were not available to the appropriate Government it was perfectly competent to the said Government to fill in the vacancy and appoint Mr Jacob in his place to take up the work of adjudication Therefore there is no substance in the contention that the decision of Mr Jacob is invalid in law The last contention urged is that the reference is invalid inasmuch as the Chief Commissioner of Ajmer was not competent to refer the present dispute for adjudication under section 101 read with section 125 of the Act The argument is that the Textile Industry has been included at serial No 23 in the First Schedule to the Industrial Development and Regulation Act 1951 Act 65 of 1951 and as such the Chief Commissioner of Ajmer was not the appropriate Government under section 2ai of the Act It is urged that the present dispute could have been validly referred for adjudication to the industrial tribunal only by the Central Government Section 2ai inter alia defines the 1 989 appropriate Government as meaning in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government or by a railway company or concerning any such controlled industry as may be specified in this behalf by the Central Government the Central Government The question which arises is has the textile industry been specified as controlled industry in this behalf by the Central Government It is true that the textile industry is controlled by the provision of Act 65 of 1951 and in that sense it is controlled industry but that would not be enough to attract the application of section 2ai of the Act What this latter provision requires is that the Central Government must specify in this behalf that the industry in question is a controlled industry in other words the specification must be made by the Central Government by reference to and for the purpose of the provisions of the Act in order that the Central Government may itself become the appropriate Government qua such industry under s 2ai of the Act It is conceded by Mr Sastri that no such specification has been made by the Central Government Indeed we ought to add in fairness to Mr Sastri that he did not very seriously press this point The result is the appeal fails and is dismissed with costs Appeal dismissed

A mortgage was executed by several persons on the 28th July 1931 The term of the mortgage namely six years expired in July 1937 the mortgagees instituted a suit in May 1938 and a decree was passed in March 1939 An applica tion for relief under the UP Debt Redemption Act XIII of 1940 was made on 11th April 1942 and this application was resisted on the ground that S one of the mortgagors had been assessed to income tax and was therefore not an agri culturist and the suit was not consequently a suit to which the Act applied The evidence showed that S was earning a monthly salary of Rs 90 and that from February 1932 he had been assessed to income tax till the year 1936 The High Court held relying on the Full Bench ruling in Ketki Kunwar vs Ram Saroop ILR 1943 All 35 that under sec 21 of the Act the mortgage money could be recovered only from the mortgaged property and not personally and that the proviso to sec 2 9 of the Act had therefore no application and the question whether S was an agriculturist on the date of the mortgage was immaterial As S was admit tedly an agriculturist on the date of the suit the High Court held that the judgment debtors were entitled to relief under the Act On appeal Held that assuming that the proviso to sec 2 9 applied and that in order to be a loan within the meaning of the Act it must be shown that the advance was made to one who at the date of the advance was an agriculturist S was not an agriculturist on the 28th July 1931 as the Indian Finance Supplementary and ExtendingAct of 1931 which reduced the taxable minimum from Rs 2000 to Rs 1000 was passed only in November 1931 and income tax was first deducted from his salary only in February 1932 Quaere Whether the Full Bench decision in Ketki Kuwar vs Ram Saroop ILR 1943 All 35 is correct

Civil Appeal No 22 of 1958 Appeal from the judgment and order dated December 2 1954 of the Bombay High Court in Appeal No 122 of 1954 arising out of the Judgment and order dated September 30 1954 of the said High Court in Civil Misc Application No 267X of 1954 R J Kolah section N Andley J B Dadachanji Rameshwar Nath and P L Vohra for the appellant Gopal Singh and R H Dhebar for respondent No 2 1960 February 11 The Judgment of the Court was delivered by GAJENDRAGADKAR J The Associated Cement Companies Ltd Dwarka Cement Works Dwarka and the Associated Cement Companies Ltd Sevalia Cement Works Sevalia hereinafter called the appellants own and manage several cement works throughout India including inter alia cement manufacturing factories at Dwarka and Sevalia called the Dwarka Cement Works and the Sevalia Cement Works respectively In 1946 the appellants submitted to respondent 2 the Commissioner of Labour Bombay in his capacity as certifying officer draft standing orders for certification under section 31 of the 20 of 1946 hereinafter called the Act Respondent 2 made several alterations in the draft submitted by the appellants The two important alterations which are the subject matter of the present appeal were in respect of items Nos 8 and 16 Under item No 8 the draft standing orders had required that notice of fourteen days shall be given in the event of discontinuance of a shift Respondent 2 has modified it by increasing the period of notice from fourteen days to one month This modification has 124 976 been made in accordance with the model standing order on this subject Similarly item No 162 in the draft standing orders provided that striking work either singly or with other workers without giving fourteen days previous notice would be treated as misconduct whereas item No 163 provided that inciting while on the premises any worker to strike work shall be treated as misconduct These two provisions in the draft have been modified by respondent s and the order thus modified provides that striking work illegally either singly or with other workers or abetting inciting instigating or acting in furtherance of an illegal strike would be treated as misconduct This modification also is consistent with the relevant provision in the model standing order Feeling aggrieved by the modifications made by respondent 2 in the draft submitted by them the appellants preferred an appeal to the Industrial court hereinafter called respondent 1 Respondent I was not impressed by the contentions raised by the appellants with the result that the modifications made by respondent 2 were confirmed and the appeal was dismissed Thereupon the appellants filed a writ petition being Miscellaneous Application No 267 of 1954 in the Bombay High Court challenging the validity of the action of respondents 2 and 1 Mr Justice Coyajee who heard the said application upheld the contention raised by the appellants and came to the conclusion that in making the impugned modifications respondent 2 and respondent I had acted beyond their jurisdiction The learned judge therefore set aside the modifications made and allowed the appellants petition Against this order respondent 2 preferred an appeal being Appeal No 122 of 1954 before the Court of Appeal in the Bombay High Court The appellate court reversed the decision of Coyajee J and held that the action of respondents 2 and I in making the modifications in question was justified by the provisions of the Act In the result the petition filed by the appellants was dismissed It is against this decision that the present appeal has been preferred by 977 the appellants and the short question which it raises for our decision is whether under the provisions of the Act it was competent to respondents 2 and 1 to make the impugned modifications in the draft standing orders submitted by the appellants for certification under the Act The Act has been passed because it was thought expedient to require employers in industrial establishments to define with sufficient precision the conditions of employment under them and to make the said conditions known to workmen employed by them Standing Orders are defined by section 2g of the Act to mean rules relating to matters set out in the Schedule The Schedule sets out 11 matters in respect of which standing orders are required to be made by the employers Mr Kolah for the appellants contends that the main object of the Act is to require the employers to provide for conditions of service in respect of all the matters covered by the Schedule and according to him the jurisdiction of respondent 2 under the Act as it then stood is confined only to see that standing orders are made in respect of all the items specified in the Schedule In this connection Mr Kolah has strongly relied on the provision of section 4 which then laid down inter alia that it shall not be the function of the certifying officer or the appellate authority to adjudicate upon the fairness or reasonableness of the provisions of any standing order The argument is that the Act expressly prohibits respondent 2 or respondent I from enquiring whether any of the provisions made in the draft standing orders are fair or reasonable and it is urged that in making the modifications in question in substance respondent 2 has embarked upon an enquiry about the reasonableness or fairness of the relevant conditions included in the draft Thus presented the argument is no doubt attractive but there are some other provisions in the Act which show that the argument based on the said provision of section 4 cannot succeed It is therefore necessary to consider the other provisions which are material Before we do so we would like to add that by a subsequent amendment made in 1956 section 4 now provides that it shall be 978 the function of the certifying officer or the appellate authority to adjudicate upon the fairness or reasonableness of the provisions of any standing orders In other words what was expressly excluded from the jurisdiction of the authorities under the Act has now been clear made their duty and so the argument based upon the provision as it stood in 1946 is after the amendment of 1956 purely academic Section 3 of the Act requires the employer to submit draft standing orders Section 32 provides that in the draft thus submitted provision shall be made for every matter set out in the Schedule which may be applicable to the industrial establishment and where model standing orders have been prescribed shall be so far as is practicable in conformity with such model It is common ground that model standing orders have been proscribed in the present case and so it follows that under section 3 sub section 2 the draft submitted by the appellants had to be in conformity with the model sanding orders so far as was practicable In other words the effect of section 3 sub section 2 is that unless it is shown that it is impracticable to do so the appellants draft had to conform to the model This position cannot be disputed Then the next relevant provision of the Act is contained in section 4 which provides that standing orders shall be certifiable under this Act if a provision is made therein for every matter set out in the Schedule which is applicable to the industrial establishment and b the standing orders are otherwise in conformity with the provisions of this Act The rest of the provision of section 4 has already been cited and considered by us Having thus provided for the tests which have to be satisfied before a draft submitted by the employer can be treated as certifiable section 5 provides for the procedure of the proceedings which are taken before the certifying officer Section 5 2 lays down that after notice is given to the parties concerned the certifying officer shall decide whether or not any modification of or addition to the draft submitted by the employer is necessary to render the draft standing orders certifiable under the Act and shall make an order in writing accordingly Sub section 3 of section 5 then provides for 979 certifying the draft after making modifications if any under sub section There is one more section to which reference may be made Section 152b provides that the rules which the appropriate government may make under the Act may set out model standing orders for the purposes of this Act The cumulative effect of these provisions is that the certifying officer has to be satisfied that the draft standing orders deal with every matter set out in the Schedule and are otherwise in conformity with the provisions of the Act This latter requirement necessarily imports the consideration in specified in section 3 sub section 2 that is to may the draft standing order must be in conformity with the model standing order which is provided under section 152b for the purposes of the Act and as we have already seen unless it is shown that it would be impracticable to do so the draft standing order must be in conformity with the model standing order It is quite true that this requirement does not mean that the draft standing order must be in identical words but it does mean that in substance it must conform to the model prescribed by the appropriate government The question which then arises is was it or was it not open to respondent 2 to consider whether the draft submitted by the appellants should not conform to the model standing order in respect of the topics with which we are concerned in the present appeal The answer to this question must obviously be in the affirmative It was not only open to respondent 2 to enquire into the matter but it was clearly his duty to do so before holding that the draft orders were certifiable under section 4 Now such an enquiry necessarily involves the consideration of the question as to whether it would be practicable to insist upon conformity with the model standing order in regard to the matters in dispute If respondent 2 was satisfied that it would be practicable to insist upon such conformity it would be within his competence to make the suitable modifications in the draft If on the other hand he took the view that it would not be practicable to insist upon such conformity he would despite the disparity between the model and the draft treat the draft as certifiable In the present case respondent 2 as well 980 as respondent I have held that it was practicable to insist upon conformity with the model standing order regard to the matters in dispute and so they have made suitable modifications Having regard to the relevant provisions which we have just considered it seems difficult to accept the plea that in making the modifications in question respondent 2 and respondent 1 have exceeded their jurisdiction It is important to make a distinction between considerations of fairness or reasonableness which are excluded from the purview of the enquiry before respondent 2 and respondent I from considerations of practicability which are necessarily imported in such an enquiry The line separating the one from the other may be thin but nevertheless it is a firm and existing line which is statutorily recognised in the respective provisions o the Act Respondent 2 may not modify the draft on the ground that its provisions are unfair or unreasonable but he can and must modify the draft in matters covered by the model standing order if he is satisfied that conformity with such model standing order is practicable in the circumstances of the case In our opinion therefore the High Court was right in holding that the authorities under the Act had acted within their jurisdiction in making the impugned modifications We may mow refer to the decisions to which our attention was invited by Mr Kolah In Guest Keen Williams Private Ltd vs Sterling P J Ors 1 this Court had occasion to consider the effect of a part of the provision contained in section 4 of the Act as it stood before its amendment in 1956 It is however clear that in that case the point raised for our decision now did not fall to be considered In Electric Workers Union vs The UP Electric Supply Co 2 Mr Justice Wanchoo who was acting as the appellate authority under the Act appears to have held that the provision contained in section 32 had nothing to do with the power of the certifying officer to substitute the model for the draft Acoording to the learned judge the said provision was intended merely to help and guide the employers as to how they should frame their draft standing orders This decision apparently supports 1 2 AIR 1949 All 981 the argument that the certifying officer cannot make any changes in the provisions of the draft where those provisions are clear on the ground that they are not reasonable and fair and that other provisions which may have been provided in the model standing orders should be substituted for them If in making these observations it was intended to decide that before certifying the draft standing orders submitted by the employer the certifying officer cannot enquire and decide whether it would be practicable or not to make the provisions in the draft conform to the model standing orders with respect we would hold that the said decision is inconsistent with the true effect of the relevant provisions of the Act We may incidentally add that the observations made by Wanchoo J in that case have not been approved by the Allababad High Court in Jiwan Mal Co vs Secretary Kanpur Loha Mills Karamchari Union Ors In Mysore Kirloskar Employees Association vs Industrial Tribunal Bangalore Anr 2 the Mysore High Court has considered this question and it appears to have concurred more with the view expressed by the Bombay High Court which is the subject matter of the present appeal than with the observations of Wanchoo J There is one more point to which reference must be made Mr Kolah attempted to argue before us that even if the authorities under the Act had jurisdiction to deal with the matter and examine whether or not it was practicable to insist upon conformity with the model standing orders the modifications made by them on the merits are impracticable We have not allowed Mr Kolah to urge this contention before us because such a plea was not raised by the appellants in their petition for a writ before the Bombay High Court and it would not be open to them to raise it for the first time before us Besides in a petition for a writ of certiorari it would normally not be open to the appellants to challenge the merits of the findings made by the authorities under the Act The result is the appeal fails and is dismissed with costs Appeal dismissed 1 AIR 1955 All 581

The unskilled seasonal workmen of the Bihar Sugar Industry bulk of whom belonged to the landless labourer class who ceased to have any contractual relation with the employers once the 990 season was over and on the commencement of the next season might or might not rejoin their employment raised disputes over the question whether retaining allowances should be paid to them during the off season The Labour Appellate Tribunal inter alia awarded a retaining allowance to unskilled workmen at a rate of 5 of the basic wage for the period of the off season to be paid every year at the beginning of the season when they reported for duty The main contentions on behalf of the employer were that agriculture was the primary occupation of these persons and the employment in the Sugar Factory Was merely a subsidiary occupation that claim for retaining allowance was really in the nature of unemployment relief which it was the duty of the State and not the industry to give that the relationship of employer and employee did not exist in the off season and so no payment of anything in the character of wages could possibly be claimed by the labour Held that the relief of unemployment by arranging suitable alternative employment or an alleviation of the distress of employment insurance benefits or by other modes though is primarily the function of the Government of the country yet the industry where these workmen are seasonally employed cannot look unconcerned and play no part in alleviating the distress of the people who have contributed to the prosperity of the industry by their labour though only for a part of the year In deciding whether the principle of social justice which it is the aim of industrial adjudication to apply to justify the payment of retaining allowance to unskilled workmen in these sugar industries it is necessary to take into account a opportunities of alternative employment in the off season that will be available to such workmen b the degree in which such workmen can be said to have become attached to the particular factory where they work c the likely benefit to the industry if such workmen are induced to return to the factory by the incentive of retaining allowance to be paid when the season commences d the capacity of the industry to bear the burden of retaining allowance Held further that for alleviating the distress of unskilled workmen in these Sugar Factories a much better course will be to raise the wage structure with an eye to this fact that for a part of the off season at least when they remain unemployed than to pay retaining allowance for the entire off season In the instant case the interests of both the employers and labour will be best served if the question of raising their wages in view of the seasonal nature of their employment be raised before the wage board which has been entrusted with the task of fixing the wages of the workmen concerned in the present dispute which will be considered sympathetically specially as the employers have recognised the reasonableness of the claim 991

ON Criminal Appeal No 170 of 1956 Appeal by special leave from the judgment and order dated June 14 1954 of the Calcutta High Court in Criminal Appeal No 13 of 1954 arising out of the Judgment and order dated January 13 1954 of the said High Court in Case No 55 of 1953 Purshottam Tricumdas H J Umrigar and B P Maheshwari for the appellants N C Chatterjee R L Anand and D N Mukherjee for respondent No 1 A C Mitra A M Pal and P K Bose for respondent No 2 1960 February 12 The Judgment of section K Das and Sarkar JJ was delivered by section K Das J Hidayatullah J delivered a separate Judgment section K DAS J This is an unfortunate case in more than one sense So far back as August 11 1950 there was some incident in premises No 18 Bondel Road in Calcutta in the course of which one Col section C Mitra a Gynaecologist and Surgeon lost his life Mitra was the husband of petitioner No 1 and father of petitioner No 2 In connection with the Colonel s death Sunil Chandra Roy at present respondent No 1 and his two brothers were placed on their trial for offences under sections 302 323 and 447 of the Indian Penal 3 Code Very shortly put the case against them was that they had trepassed into 18 Bondel Road following upon a quarrel regarding the supply of water to premises No 17 Bondel Road which belonged to petitioner No 2 and consisted of several flats one of which on the second floor was in occupation of Sunil as a tenant that they had attacked Col Mitra and petitioner No 2 that Sunil had inflicted a blow or blows on the Colonel which caused his death and that one of his brothers Satyen had inflicted some minor injuries on the person of petitioner No 2 There was also a charge against Sunil for an assault alleged to have been committed on Mrs Sati Mitra Wife of petitioner No 2 The accused persons were in the first instance tried by the Additional Sessions Judge of Alipur with the result that Sunil was convicted under sections 325 and 447 and Satyen under sections 323 and 447 Indian Penal Code So far as the third brother Amalesh was concerned his case was referred to the High Court as the learned Judge did not agree with the jury s verdict of not guilty Sunil and Satyen appealed to the High Court against their convictions and sentences the State of west Bengal obtained a Rule for enhancement of the sentences passed on Sunil and Satyen The appeal the Rule and Reference were heard together The appeal was allowed and the High Court of Calcutta directed that Sunil and Satyen be retried at the Criminal Sessions of the High Court The Reference in respect of Amalesh was rejected and the Rule for enhancement of the sentences passed necessarily fell through Sunil and Satyen were then tried at the Criminal Sessions of the High Court by Mitter J with the aid of a special jury The jury unanimously found Sunil guilty under sections 325 and 447 and Satyen under sections 323 and 447 Indian Penal Code The learned Judge accepted the verdict and sentenced both Sunil and Satyen to various terms of imprisonment and fines An appeal was then preferred by Sunil and Satyen This appeal was again allowed and another retrial was directed at the Criminal Sessions of the High Court 4 The retrial was held by P B Mukherjee J Before the commencement of the trial the State withdrew the case against Satyen on the ground of the state of his health Therefore Sunil alone was tried and the charges against him at the third trial were two in number one under section 325 Indian Penal Code for vountarily causing grievous hurt to Col Mitra and the other under section 447 Indian Penal Code for criminal trespass into premises No 18 Bondel Road with intent to intimidate insult or annoy Col Mitra or his son Nirmal petitioner No 2 herein This time the jury by a majorit verdict of 7 to 2 found Sunil not guilty of the charge under section 325 Indian Penal Code and by a majority of 6 to 3 found him not guilty of the other charge also The learned Judge accepted the verdicts and acquitted Sunil Then the State of West Bengal preferred an appeal to the High Court against the order of acquittal but the High Court summarily dismissed it on June 14 1954 on the ground that no case had been made out for the admission of the appeal under the provisions of section 411A2 of the Code of Criminal Procedure Then on July 22 1954 the petitioners herein made an application to the High Court for a certificate under Article 1341 c of the Constitution that the case is a fit one for appeal to the Supreme Court and the grounds alleged in support of the application substantially were 1 that in his charge to the jury the learned Judge had failed to marshall and sift the evidence properly so as to give such assistance as the jury were entitled to receive 2 that the learned Judge had misdirected the jury on several points both with regard to the evidence of the eye witnesses and the evidence of medical experts 3 that the learned Judge did not properly explain the law relating to the charges 4 that he admitted inadmissible evidence and shut out evidence which was admissible and this had vitiated the verdict of the jury and 5 that the learned Judge had not dealt with the prosecution and defence versions in the same way and by the same standard and bad been guilty of various non directions which resulted in a manifestly erroneous verdict This application was dismissed by the 5 High Court on July 26 1954 mainly on two grounds 1 the petitioner had no locus stand to maintain an application for leave to appeal to the Supreme Court and 2 no appeal lay under Article 134 of the Constitution from an order of acquittal The High Court then said In view of the opinion we have formed as regards the competence of the present application it is not necessary for us to say anything on the merits but for the sake of completeness we shall observe that the grounds which have been set out in the petition are all grounds which had been taken in the appeal preferred by the State and we did not think then and do not think now that those grounds would justify us in either admitting the appeal from the order of acquittal or giving leave to appeal from our order to the Supreme Court The petitioners then applied for special leave from this Court under Article 136 of the Constitution and substantially pleaded the same grounds some of which were elaborated by examples given which they had pleaded when asking for a certificate from the High Court This Court granted special leave on February 20 1956 and the present appeal has come to us in pursuance of the special leave granted by us In view of the special leave granted the two questions dealt with by the High Court in its order dated July 26 1954 no longer require any consideration The principal question for consideration now is whether the charge to the jury at the third trial is so defective that it has led to a manifestly erroneous verdict resulting in a failure of justice Therefore we intimated to learned counsel for the parties that the arguments should be confined at this stage to that question and if counsel for the petitioners satisfied us that the charge was so defective on the grounds alleged then the further question as to whether the case should be remitted to the High Court or dealt with in this Court on the evidence already recorded would arise We proceed now to consider the principal question before us But before we do so it is necessary perhaps to give a few more details of the prosecution case and the defence 6 Col Mitra was the owner of 18 Bondel Road but he did not live in that house He had his chambers on the ground floor of 18 Bondel Road His son Nirmal lived at 18 Bondel Road with his wife Just by the side of 18 Bondel Road and west of it was No 17 Bondel Road one of the flats of which was in occupation of Sunil as a tenant It was alleged that the relation between landlord and tenant was not good and there were proceedings between the two before the Rent Controller An order made in these proceedings reduced the rent payable by the tenants and fixed certain specific hours during which the pump for water supply was to be worked The prosecution case was that on August 10 1950 Mitra came to spend the night with Nirmal and was put up in the easternmost bed room on the first floor The building had three rooms on the first floor all facing south and the westernmost room was used by Nirmal as his bed room The intermediate room was a drawing room and had a telephone in it According to the prosecution case in the early morning on the 11th August 1950 Nirmal was still in bed when he was roused by the noise of a row and recognising the voice of Sunil he slightly opened the leaves of one of the windows to see what was happening He found that Sunil amongst others was standing at the window shouting abuse at Purna Mali the gardener who was in charge of the pump for not getting water which was followed up by further abuse of Nirmal After that Sunil disappeared from the window Nirmal s wife had been up before Nirmal and already served tea to Colonel Mitra and she came into the room when Nirmal was listening to the abuses She came to call him that is Nirmal to join his father at tea and went back to the Colonel Nirmal was greatly alarmed at what he had seen and heard and passing into the drawing room sent a telephone message to the Karaya Police Station asking for help While Nirmal was still speaking on the telephone his wife Mrs Sati Mitra ran into the room and said that Sunil and his two brothers who were also tenants at 17 Bondel Road had already entered the compound of 18 Bondel Road and his father the Colonel had gone down Nirmal 7 who was telephoning the police hurriedly added a request to the police to come soon Nirmal coming down found Purna Mali in the grasp of Amalesh and Colonel Mitra was standing underneath the porch at 18 Bondel Road and remonstrating with Sunil and his brother Nirmal immediately ordered accused Sunil and his brothers to get out of the house whereupon Satyen and Amalesh fell upon Nirmal This led the Colonel to remonstrate again whereupon the Colonel was attacked by Sunil who caught hold of the Colonel by the neck of his vest and began to drag him towards the Bondel Road along the passage to the gate at 18 Bendel Road The building at l8 Bondel Road faces south has a lawn to its south alongside which runs a passage to the gate and near the western pillar of the gate there is a masonry letter box built in the compound wall To the south of the lawn there is a row of tube roses through which there is an opening leading into the lawn According to the prosecution case as Sunil started dragging the Colonel towards the road and the gate Nirmal ordered the Mali to close the gate Accused Sunil dragged the Colonel according to the prosecution case and while near the Durwan s room Sunil dealt a fist blow on the left temple of the Colonel The prosecution case further was that Sunil proceeded to drag the Colonel past the western pillar of the gate and then through the opening among the plants in the lawn and there he struck a blow on the left forehead of the Colonel with a rod like object On receiving the blow the Colonel dropped down and fell on his back on the lawn Thereupon Sunil stepped on to the letter box scaled the wall and hurriedly made his escape Two neighbours Jiban Krishna Das and Suku Sen then came by scaling into the compound of No 18 and with their help and with the help of the servants of the family the Colonel s body was removed to the verandah on the ground floor of 18 Bondel Road and placed on a charpoi Nirmal was one of the persons who carried the body of his father the Colonel Jiban had a car with him and was asked to rush for a doctor which he did and within a few minutes brought Dr Sachin Bose who examined the 8 Colonel and found him already dead On receipt of the telephone message from Nirmal Pushpa Pal Officer in charge Karaya Police Station deputed a Head constable named Mathura Singh to go to No 18 but when the constable arrived the incident was over The Officer in charge Pushpa Pal soon followed and after obtaining from Nirmal a brief oral statement as to his version of the incident proceeded to No 17 Bondel Road On the staircase of the house at No 17 Bondel Road Puspha Pal met one Sarat Banerji said to be a priest of a neighbourhood called Shitalatala Pushpa Pal then went up and arrested the accused Sunil The postmortem examination of the Colonel s body revealed that he had sustained a linear fracture of his left temporal bone vertical in character an abrasion laid obliquely across the middle of the left half of his forehead a lacerated wound bone deep laid vertically across the middle of the eye brow an abrasion on the left cheek and one small lacerated wound near the left ear There was some clotted blood on the top of the membrane over the fracture of the bone and some on the inner surface of the scalp In the opinion of Dr Majumdar who carried out the postmortem examination as recorded in his report the death of the Colonel was due to shock caused by the head injury on top of senile changes and the head injury which was ante mortem must have been caused by a fall on some hard substance The postmortem report was not signed till the 2nd September 1950 and not until the pathological report and the chemical report had been obtained The defence of Sunil was that he did not strike or assault the Colonel either by a fist blow or a blow with a rod like substance The defence further was that the fist blow on the left temple of the Colonel was not specifically mentioned by any material witness until after the postmortem report showed a linear fracture of the left temporal bone and it was suggested by the defence that the fist blow was invented to make a case that such blow fractured the left temporal bone of the Colonel The main suggestion on behalf of the defence was that the Colonel 9 was an old man with heart trouble and his pathological condition was such that he was excited at the time of the incident and fell down on a rough surface either on the passage or on the masonry letter box and hurt himself The injury was such that it could s not be caused by one blow of a rod or rod like substance The defence against the charge of criminal trespass was that Sunil entered the compound of No 18 Bondel Road at the invitation of Purna Mali who asked Sunil to come and see if the pump was working the pump being within the compound of No 18 Bondel Road Sunil did not however assault the Colonel in any way It is in the context of the aforesaid two versions that we have to consider the charge to the jury and examine the criticisms made thereto We must make it clear that we are not called upon at this stage to give our findings on any of the disputed questions of fact That was the function of the jury and the jury had given their verdict The limited question before us is whether that verdict is vitiated by reason of any serious misdirection by the Judge or of any misunderstanding on the part of the jury of the law laid down by him which in fact has occasioned a failure of justice This Court said in Mushtak Hussein vs The State of Bombay 1 Unless therefore it is established in a case that there has been a serious misdirection by the Judge in charging the jury which has occasioned a failure of justice and has misled the jury in giving its verdict the verdict of the jury cannot be set aside In a subsequent decision Ramkishan Mithanlal Sharma vs The State of Bombay 2 this Court observed that section 297 Criminal Procedure Code imposed a duty on the Judge in charging the jury to sum up the evidence for the prosecution and defence and to lay down the law by which the jury were to be guided but summing up for the prosecution and defence did not mean that the Judge should give merely a summary of the evidence he must marshall the evidence so as to give proper assistance to the jury who are required to decide which view of the facts is true This Court 1 at 815 2 at 930 10 referred with approval to the following observations made by the Privy Council in Arnold vs King Emperor A charge to a jury must be read as a whole If there are salient propositions of law in it these will of course be the subject of separate analysis But in a protracted narrative of facts the determination of which is ultimately left to the jury it must needs be that the view of the Judge may not coincide with the view of others who look upon the whole proceedings in black type It would however not be in accordance with usual or good practice to treat such cases as cases of misdirection if upon the general view taken the case has been fairly left within the jury s province But in any case in the region of fact their Lordships of the Judicial Committee would not inter fere unless something gross amounting to a complete misdescription of the whole bearing of the evidence has occurred Bearing the aforesaid principles in mind we proceed now to consider the criticisms made on behalf of the petitioners against the learned Judge s charge to the jury We had earlier classified the criticisms under five different heads and we shall deal with them one by one We shall refer to the main points urged under each head avoiding a detailed reference to the evidence on minor points which do not advance the case of the petitioners any further The first criticism is that the charge to the jury read as a whole is nothing but a summary of the evidence witness by witness and a summary of the arguments of counsel which the jury had already heard that the learned Judge did not state the points for decision under separate heads nor did he collate and marshall the evidence topic wise so as to assist the jury to come to their conclusion one way or the other but left the jury with a mass of unnecessary details which was more likely to confuse than to help them Learned counsel for the petitioners has pointed out that in the appeal from the judgment of Mitter J in an earlier stage of this very case 1 1914 LR 41 IA 149 11 Chakravarti C J had said in Sunil Chandra Roy and Another vs The State 1 But I feel bound to say that the function of a charge is to put the jury in a position to weigh and assess the evidence properly in order that they may come to a right decision on questions of fact which under the law is their responsibility The charge must therefore address itself primarily to pointing out what the questions of fact are what the totality of the evidence on each of the questions is how the different portions of that evidence lying scattered in the depositions of several witnesses fit with one another what issues or subsidiary questions they raise for decision and what the effect will be according as one part or another of the evidence is believed or disbelieved It was argued that what was condemned in an earlier stage of this case has happened again We are unable to accept this line of criticisms as substantially correct It is indeed true that the learned Judge followed the method of placing the evidence witness wise rather than topic wise He started his summing up by stating I now propose to take up the prosecution witnesses individually with a view to sum up the evidence of each witness and the suggestions made to each by the counsel for the accused But the real point for consideration is not whether the learned Judge followed one method rather than another the real point is did he properly discharge his duty under section 297 Criminal Procedure Code by giving the jury the help and guidance to which they were entitled Did he marshall the evidence in such a way as to bring out the essential points for decision and the probabilities and improbabilities bearing on the disputed questions of fact on which the jury had to come to their conclusion The learned Judge gave a lengthy charge to the jury and in summing up the evidence of each witness he did state the disputed points arising therefrom and their bearing on the main questions at issue viz whether Sunil had trespassed into 18 Bondel Road and had assaulted the Colonel in the manner alleged by the prosecution 1 at 10001 12 The length of the charge was due in part to a protracted narrative of facts and the many disputed questions of fact to which the attention of the jury had to be drawn The principle laid down by the Privy Council in Arnold s case 3 and accepted by this Court as correct is that it would not be in accordance with good practice to treat a case as a case of misdirection if upon the general view taken the case has been fairly left within the jury s province and this Court will not interfere unless something gross amounting to a complete misdescription of the whole bearing of the evidence has occurred Learned counsel for the petitioners has taken us through the entire charge to the jury and while we may agree that some unnecessary details eg how the spectacles of Mrs Sati Mitra fell down could have been avoided by the learned Judge we are unable to say that the method followed by the learned Judge did not focus attention of the jury to the questions of fact which they had to decide or did not give help and guidance to the jury to arrive at their conclusion oes and as the accounts were kept on a mercantile basis the amount of commission accrued as and when the sales took place and paragraph 5 of agreement was only a machinery for quantifying the amount It was also argued that the Managing Agents by entering into an agreement with the Mills had voluntarily relinquished a portion of the amount of commission which had accrued to them and therefore the whole of the income from commission which had already accrued was liable to 55 income tax and reference was made to the cases reported as Commissioner of lncome tax Madras vs K R M T T Thiagaraja Chetty and Co 1 E D Sassoon Company Ltd vs The Commissioner of Income tax Bombay City 2 and to an English case Commissioners of Inland Revenue vs Gardner Mountain D Ambrumnil Ltd 3 But these cases have no application to the facts of the present case In the Commissioner of Income tax Madras vs K R M T T Thiagaraja Chetty Co 1 the assesses firm was under the terms of the Managing Agency Agreement entitled to a certain percentage of profits and in the books of the Company a certain sum was shown as commission due to the assessee firm and that sum was also adopted as an item of business expenditure and credited to the Managing Agents commission account but subsequently it was carried to suspense account by a resolution of the Company passed at the request of the assessee firm in order that the debt due by the Firm might be written off The accounts were kept on mercantile basis and it was held that on that basis the commission accrued to the assessee when the commission was credited to the assessee s account and subsequent dealing with it would not affect the liability of the assessee to income tax It was also held that the quantification of the commission could not affect the question as it was not a condition precedent to the accrual of the commission At page 267 Ghulam Hassan J observed Lastly it was urged that the commission could not be said to have accrued as the profit of the business could be computed only after the 31st March and therefore the commission could not be subject to tax when it is no more than a mere right to receive This argument involves the fallacy that profits do not accrue unless and until they are actually computed The computation of the profits whenever it may take place cannot possibly be allowed to suspend their accrual In the case of income where there is a condition that the commission will not be payable until the expiry of a definite period or the making up of the account it might be 1 at 267 2 344 3 96 56 said with some justification though we do not decide it that the income has not accrued but there is no such condition in the present case This passage does not help the appellant s case The question there decided was that the accrual of the commission was not dependent upon the computation of the profits although the question whether it would make any difference where the commission was so payable or was payable after the expiry of a definite period for the making of the account was left undecided In the case before us the agreement is of a different nature and the above observations are not applicable to the facts of the present case The next case is E D Sasoon Co Ltd vs The Commissioner of Income tax Bombay City 1 But it is difficult to see how it helps the case of the appellant If anything it goes against his contention In that case the assessee Company was the Managing Agent of several Companies and was entitled to receive remuneration calculated on each year s profits Before the end of the year it assigned its rights to another person and received from him a proportionate share of the commission for the portion of the year during which it worked as Managing Agent On the construction of the Managing Agency Contract it was held that unless and until the Managing Agent had carried out one year s completed service which was a condition precedent to its being entitled to receive any remuneration or commission it was not entitled to receive any commission The facts in that case were different and the question for decision was whether the contract of service was such that the commission was only payable if the service was for a completed year or the assessee Company was entitled to receive even for a portion of the year for which it had acted as a Managing Agent It was held that it was the former As was observed by Lord Wright in Commissioners of Inland Revenue V Gardner Mountain D Ambrumenil Ltd 2 It is on the provisions of the contract that it must be decided as a question of construction and therefore of law when the commission was earned The contract in the present case in para 1 344 2 96 57 graph 2 shows that 1 the company was to pay each year 2 that the Managing Agents were to be paid 5 per cent commission on the proceeds of the total sales of yarn and of all cloth sold by the Company or three pies per pound avoirdupois on the sale whichever the Managing Agents chose thus there was an option to be exercised at the end of the year 3 they were also to be paid at 10 per cent on the proceeds of sales of all other materials and 4 the Mills were to pay to the Managing Agents each year after December 31 or such other dale which the Directors of the Company may choon those questions We are far less satisfied that anything amounting to a complete misdescription of the whole bearing of the evidence has occurred in this case As to the observations which Chakravarti CJ had made it is well to remember that they were made in respect of an earlier charge to the jury which to use the words of the learned Chief Justice was all comment or mere comment in the main Having carefully perused the present charge to the jury we think on a general view that the case has been fairly left within the jury s provinces in spite of the criticism so strenuously made that the charge to the jury contained a mass of details which need not have been placed before the jury In a protracted narrative full of details it is perhaps easy to find fault with a charge to the jury on the ground of prolixity The question before us is not whether the charge to the jury is perfect in all respect the question is has something gross occurred amounting to a complete misdescription of the whole bearing of the evidence We are unable to say that there has been any such gross misdirec tion by the learned Judge 1 1954 LR 41 IA 149 13 The second criticism relates to certain misdirections alleged to have been committed by the learned Judge in placing the evidence of the eye witnesses as also of medical witnesses No useful purpose will be served by referring to each and every example given before us we shall confine ourselves to some of the salient points and state the general impression we have formed In placing the evidence of each eyewitness the learned Judge referred to the suggestions made by the defence The comment is that he placed the suggestions in such a way as to create the impression in the minds of the jury that they were true even though they had been repudiated or explained by the witness We may give some examples Nirmal telephoned to his brother Dr Lalit Mitra immediately after Col Mitra was pronounced to be dead The suggestion to Nirmal was that he had not told his doctor brother then that his father had been beaten but had said only that his father had fainted This suggestion was placed before the jury with reference to Nirmal s deposition before the committing Magistrate Nirmal said before the committing Magistrate that he did not use the English word I fainted but had said in Bengali that father has become unconscious The complaint of the petitioners is that Nirmal s explanation has not been properly placed before the jury But the learned Judge says in his charge that the jury had seen the earlier deposition of Nirmal and if that is so the dis tinction between I fainting and becoming unconscious in explanation of the suggestion made to Nirmal does not assume any great importance It was next suggested to Nirmal that he had told the Police that his father had heart trouble This suggestion was put before the jury in the following way The case was put by the defence that the Colonel had heart trouble and that Nirmal was confronted with contradiction that he told the Magistrate and the police that his father had heart trouble Nirmal had denied it Nirmal s explanation was that he did not tell the Magistrate or the police that his father had heart 14 trouble he merely said that his father used to have occasional palpitation of heart when he ate too much or took irregular meals Pushpa Pal the investigating police officer understood this to mean heart trouble and he recorded heart trouble in Nirmal s statement Pushpa Pal admitted that even if Nirmal had stated that Col Mitra had palpitation of heart he would have recorded it as heart trouble This part of the evidence of Pushpa Pal also the learned Judge placed before the jury It cannot therefore be said that the learned Judge misled the jury in any way or left the jury with the impression that Nirmal had admitted that his father had heart trouble Similar comments were made with regard to the placing of the evidence of other eye witnesses but their general effect is the game They do not in our view establish that the jury were misled on any of the points in dispute We must however mention two more points one in connection with a person called Sarat Banerji and the other with regard to Mrs Nagendra Bala Ghose Sarat Banerji it appears was a priest who brought some holy water and there was some evidence to show that such water was sprinkled on the Colonel soon after the incident Sarat Banerji was not examined in the case and the question naturally arose whether he was present at the time of the incident and if so when did he come to 18 Bondel Road A number of prosecution witnesses were crossexamined on this point and the learned Judge repeatedly referred to this matter in summing up the evidence of those witnesses We do not agree with learned counsel for the petitioners that the learned Judge committed any misdirection in drawing the attention of the jury to this matter As to Mrs Nagendra Bala Ghose the criticism was that the learned Judge usurped the function of the jury About this witness the learned Judge said Now gentlemen in cross examination she was cross examined on her eyesight She did succeed in pointing out to an old man in Court That is in answer to Q 30 But further ahead she could not see properly She is far too old a woman on whom any reliance can be placed having regard to her state of 15 health and having regard to her state of vision and her power of memory Shew as called by the prosecution only to meet the defence suggestion that she was there at the time of the incident in Prof Mahanti s place and was being kept back It was submitted before us that Mrs Ghose was no doubt old but she was a respectable and reliable witness who was staying in a neighbouring house from the verandah of which the place of incident was visible therefore it was argued that the learned Judge was not justified in expressing himself so strongly against this witness and in doing so he improperly dissuaded the jury from forming their own opinion about her evidence Having examined her evidence we are unable to hold that the comments of the learned Judge were unjustified or that he wrongly influenced the jury against the witness It must be stated here that the learned Judge had cautioned the jury that they were not bound by his opinion on a question of fact and were free to act on their own opinion This brings us to the medical evidence The two doctors of importance who were examined in the case were Dr Majumdar who made the postmortem examination and Dr Kabir Hussain Professor of Forensic and State Medicine in the Calcutta Medical College Those two doctors expressed widely divergent views as to the probable cause of the injuries sustained by Col Mitra and also of his death The learned Judge rightly placed before the jury those divergent views Dealing with the evidence of Dr Majumdar the learned Judge said Suggestions were made to Dr Majumdar in cross examination that in case a fist blow was given on the left temporal region whether any external injury was to be expected He said that external injury was expected and there was no external injury mentioned in the postmortem report in this case Then Dr Maumdar s opinion is that such a man cannot be expected to talk It is also Dr Majumdar s opinion that the injury was due to a fall and he does not think that the injuries Nos 1 2 and 3 could be caused by a lathi blow or a blow by a rod According to his opinion the fracture was also due to a fall 16 It is contended that this must have misled the jury in thinking that there was no external injury on the site of the fracture on the left temporal region and therefore it could not have been caused by a fist blow Our attention was drawn to the evidence of Dr Kabir Hussain who opined that the haemorrhage on the inner surface of the scalp near the site of the fracture was an external injury The point to be noticed in this connection is that the learned Judge did not omit to place before the jury what Dr Kabir Hussain had said regarding what he thought to be the presence of an external injury at the site of the fracture he placed in extenso the questions put to Dr Kabir Hussain and the answers given by him on this point Tile jury were therefore properly placed in possession of the views of both the doctors and it was for them to decide which view should be accepted Both the doctors were asked questions as to whether the injuries sustained by Col Mitra could be caused by a fall on a rough substance like a masonry box or by a blow of a hard weapon like a flexible rod On this point again the two doctors disagreed the learned Judge did place before the jury the different views expressed by the two doctors A grievance has been made before us that in summing up the evidence of Dr Kabir Hussain the learned Judge failed to draw the attention of the jury to the answers given to ques tions 73 74 and 75 by which the doctor categorically negatived the suggestion of the defence that a fracture of the temporal gone of the kind sustained by the Colonel could be caused by a fall on a hard substance It is true that the answers to questions 73 74 and 75 we re not specifically placed before the jury but reading the charge relating to the medical evidence as a whole we find that the learned Judge sufficiently indicated to the jury the disagreement between the two doctors on the main questions of fact and the reasons which each doctor gave for his opinion It was the province of the jury to accept one opinion or the other The learned Judge concluded his summing up of the medical evidence in these words Now gentlemen when a medical witness is called in as an expert he is not a witness of fact Medical 17 evidence of an expert is evidence of opinion not of fact Where there are alleged eye witnesses of physical violence which is said to have caused the hurt the value of medical evidence by prosecution is only corroborative It proves that the injuries could have been caused in the manner alleged and nothing more The use which the defence can make of the medical evidence or any medical evidence which the defence might itself choose to bring is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye witnesses Therefore you must remember this particular point of view that if you believe the eye witnesses then there is no question of having it supported by medical evidence unless the medical evidence again in its turn goes so for that it completely rules out all possibility that such injuries could take place in the manner alleged by the prosecution and that is a point which you should bear in mind because if you accept the evidence of the eye witnesses no question of further considering the medical evidence arises at all The only question in that case when you consider the medical evidence is to test the eye witnesses version as to whether any of the particular injuries shown in the report can be caused in the manner alleged by the prosecution But if you don t believe the eye witnesses then consideration of the medical evidence in any manner becomes unnecessary We do not think that any exception can be taken to the observations made above in the context of the two versions which the jury had to consider One version was that the Colonel had been assaulted and thereby sustained the injuries the other version was that he had sustained the injuries by a fall on a rough surface like the masonry letter box None of the two doctors were giving direct evidence of how the injuries were caused they were merely giving their opinion as to how in all probability they were caused The learned Judge was therefore right in directing the jury in the way he did about the medical evidence in the case We may also point out here that the learned Judge drew the attention of the jury also to the evidence of Dr Suresh Sinha who said that the 3 18 fracture on the temporal region could be the indirect effect of the other injuries sustained by the Colonel We now go on to third head of criticism viz the learned Judge s exposition of the law relating to the two charges on which Sunil was tried These charges the learned Judge correctly explained with reference to the relevant provisions of the Indian Penal Code But be made one error Dealing with the word voluntarily in section 325 he said The word voluntarily means what it says it means of one s free will Perhaps the learned Judge forgot that the word is defined in section 39 Indian Penal Code and that definition should have been placed before the jury We do not however think that this minor lapse misled the jury in any way or occasioned a failure of justice There is one more point in this connection The learned Judge did not tell the jury that it was open to them to return a verdict of guilty for an offence under section 323 Indian Penal Code if they came to the conclusion that Sunil gave a blow to the Colonel with a flexible rod but did not cause the fracture In the circumstances of the case however we do not think that the failure to direct the jury that it was open to them to return a verdict of guilty on a minor offence occasioned any failure of justice If the eyewitnesses for the prosecution were believed it would be undoubtedly a case under section 325 Indian Penal Code if on the contrary the eye witnesses were not believed and the defence version was accepted that the Colonel sustained the injuries by a fall then there would be no case even under section 323 Indian Penal Code A grievance was made before us under the fourth head of criticism that admissible evidence was shut out and inadmissible evidence was let in It was submitted that Nirmal s statements to Pushpa Pal on his arrival at No 18 Bondel Road or at least his statements to the Head Constable Mathura Singh before the arrival of the investigating officer were not hit by section 162 Criminal Procedure Code and were clearly admissible in evidence The learned Judge said in this connection 19 I would like to remind you that if any person makes any statement to the police that is not admissible evidence as a rule unless in the case of contradictions which are formally proved as you have seen the counsel for the accused has proved contradictions in some cases but you must bear in mind that except such cases this is no evidence In the opinion which we have formed it is unnecessary to consider whether the learned Judge was right or wrong because we are of the opinion that even if those statements of Nirmal were admissible they would not be substantive evidence of the facts stated therein and if Nirmal s evidence in Court was not accepted his statements to the police officers concerned would hardly make any difference As to the admission of inadmissible evidence learned counsel for the petitioners placed before us those parts of the charge to the jury which dealt with the cross examination of prosecution witnesses on their police statements Ho submitted that a large part of that cross examination was inadmissible in view of the decision of this Court in Tahsildar Singh vs The State of Uttar Pradesh 1 That decision dealt exhaustively with section 162 Criminal Procedure Code and laid down certain propositions to explain the scope of that section it was however observed that the examples given therein were not exhaustive and the Judge must decide in each case whether the recitals intended to be used for contradiction satisfied the requirements of the law We agree that on the principles laid down in Tahsildar Singh s decision 1 some of the statements put to the prosecution witnesses were not really contradictions and did not therefore fall within what is permissible under section 162 Criminal Procedure Code We may take by way of example what was put to Nirmal The learned Judge placed the following contradictions in Nirmal s evidence to the jury He was also cross examined on his statement to the police The main point made in his cross examination on his statement to the police are firstly that the fist blow on the left temple was not mentioned by him and then he only said assault with blows before 1 20 the police and that he also said that the Colonel was hit near about the gate of the house and not beside the boundary wall It was also suggested to him in defence that the Colonel did not fall on the lawn at all but fell on the letter box The further suggestion to him was that the fist blow was a false invention and it was intended only after the postmortem report was out He was also told that he did not mention to the police that the Colonel was lying on his back He was also criticised for not having mentioned the names of persons who carried his father after he had fallen down Nirmal s answer was that he was not asked and that it was physically impossible for him alone to carry his father Then there was crossexamination as to whether the fist blow was before or after Sati Mitra had clasped the Colonel Now on the principles laid down in Tahsildar Singh s decision 1 Nirmal s failure to mention before the police that his father was lying on his back was not a contradiction but his failure to mention that a fist blow on the left temple was given to his father was a contradiction Therefore the point before us really is this assuming that some of the statements admitted in evidence were not really contradictions do they materially affect the verdict In our opinion they do not By and large the important statements made before the police were admissible under section 162 Criminal Procedure Code but some minor statements were not We do not think that the verdict of the jury can be said to have been vitiated on this ground Lastly we come to the defence evidence Here the complaint is that the learned Judge has summed up the defence evidence by adopting a different standard We are unable to agree Even with regard to the prosecution witnesses the learned Judge had emphasised points in favour of the prosecution For example dealing with the evidence of Purna Mali the learned Judge said Now gentlemen these questions are important because he does not improve the case or try to improve the case by suggesting that he saw a fist blow on the left temple and it is a matter for you to 1 ATR I959 SC 1012 21 consider in this connection whether this is a witness whom you would consider a liar because you will have to consider the suggestion that if he were then he would have probably tried to improve the case by suggesting to say that he did see a fist blow on the temple Dealing with the evidence of Pushpa Pal the learned Judge pointedly drew attention of the jury to a circumstance which was partly in favour of the prosecution and partly of the defence You also remember that Pushpa Pal held an inquest at about 9 am on the 11th August 1950 He says that he examined the compound the lawn the boundary wall the gate the masonry letter box the bricks on edge and the whole spot of 18 Bondel Road including the pathway but he found no blood marks anywhere We have examined the charge to the jury carefully it may suffer from a plethora of details and also perhaps a meticulous statement of the divergent views of the two doctors but we have found no trace of the adoption of a double standard or of a serious misdirection on any question of fact or law We have therefore come to the conclusion that on the principles which this Court has adopted for interference with a jury verdict no case for interference has been made out in this case The appeal is accordingly dismissed HIDAYATULLAH J I have had the advantage of reading the judgment just delivered by my learned brother section K Das J He is of the opinion that the charge to the jury by the learned trial Judge was proper Since I have the misfortune to differ from him in this conclusion I am delivering a separate judgment In my opinion the charge to the jury was defective for several reasons particularly misdirec tions in law and absence of any guidance while setting forth at enormous length without comment the evidence in the case My learned brother has pointed out that this is an unfortunate case and I agree with him that it is so in view of the events that have happened The facts of the case were simplicity itself The offence alleged 22 to have been committed as far back as August 11 1950 has been the subject of three trials It was first tried before the Additional Sessions Judge Alipur who convicted the present respondent Sunil under sections 325 and 447 of the Indian Penal Code agreeing with the verdict of the jury On appeal the High Court of Calcutta set aside the conviction and ordered a retrial at the Criminal Sessions of the High Court The case was then tried by Mitter J with a special jury The jury brought in an unanimous verdict of guilty against Sunil under the two sections with which the learned Judge agreed Sunil was sentenced to a long term of imprisonment but the appellate side of the Calcutta High Court on appeal set aside the conviction and sentence and ordered a retrial The third trial was conducted by P B Mukherjee J Before the trial the State Government withdrew the case against Sunil s brother Satyen who was tried along With him in the previous trials and was also convicted This withdrawal of the case was on the somewhat unusual ground that his health was bad Sunil himself it appears was defended at Government cost by one of the Government advocates The trial dragged through a weary course in which prolonged cross examination of the witnesses took place and alleged contradictions between their previous versions were put to them in detail After the arguments were over the learned Judge charged the jury at considerable length I have estimated that the charge is a document of some 50000 60000 words How much of it was of any real guidance to the jury is a matter to which I shall address myself in the sequel but it appears at the outset that the length of the charge was somewhat extraordinary regard being had to the plain facts to which I now refer On August 11 1950 Sunil and his brothers were occupying a flat in No 17 Bondel Road which belonged to Nirmal son of the late section C Mitra a very well known Gynaecologist and Surgeon of Calcutta It appears that the water supply to the flat was irregular and intermittent and Sunil bad in common with the other tenants a complaint against the land 23 lord Nirmal Incidents had taken place previously and Sunil had taken the matter to the rent control authorities and it is alleged had even threatened the landlord with dire consequences if the water supply was not improved Under an alleged agreement the water supply was regulated by working the electric pump during certain hours of the day but nothing turns upon it It appears that the water supply did not improve and often enough an exasperating situation arose in so far as the tenants of No 17 Bondel Road including the present respondent Sunil were concerned On the fateful morning matters came to a head because the water supply as was frequent failed in the flat Evidence has been led in the case to show that Sunil was angry and started abusing and expostulating in a loud manner He followed up his expostulations by entering the compound of No 18 Bondel Road whether to see to the working of the pump himself as he contended or to remonstrate more effectively with the landlord as is the prosecution case However it be Nirmal s father Col Mitra happened to be present that morning and he came out to talk the matter over with Sunil who apparently was quite loud in his remonstrances Whether the Colonel gave any offence to Sunil by rebuking him is not much to the present purpose because I am not determining the true facts in this order The case for the prosecution is that Sunil grappled with the Colonel and gave him a blow upon the head with what is described as a rod like object and also hit him on the temple with his fist The Colonel it is alleged fell down while Sunil clambered the parapet wall and made good his escape because the Colonel had previously ordered that the gates be shut Meanwhile the Colonel was taken and laid on a cot where he expired A phone call having been made to the police the Investigating Officer arrived on the scene and after taking some statements including one from Sunil he went and arrested him and also his two brothers Post mortem examination revealed a linear fracture of the temporal bone with a haematoma under the surface On the forehead of the Colonel 24 was a mark of the injury alleged to have been given with the rod like object though over the seat of the fracture no outward visible injury was seen The doctor who performed the autopsy also found certain pathological defects in the liver and the gall bladder and he asked the Chemical Examiner to examine the viscera for possible poisoning He gave the opinion that death was due to shock consequent to head Injury ie injuries on the top of senile changes and pathological liver and gall bladder as well as to inhibition With regard to the head injury which was certified to be ante mortem the doctor was of opinion that it was likely to have been caused by a fall on some hard substance The charge against Sunil in the first instance was under section 302 but the case proceeded in the sub sequent trials only under section 325 read with a further charge under section 447 of the Indian Penal Code for house trespass with intention to intimidate insult or annoy the owner The above facts clearly show that the essence of the case lay in a very narrow compass The questions which the jury had to determine were whether Sunil trespassed into the premises of No 18 Bondel Road with the intention of insulting intimidating or annoying the owner and further whether Sunil struck one or more blows either with a I rod like object or his fist on the head of Col Mitra thereby causing him injuries simple or grievous Alternatively the jury had to determine whether Col Mitra suffered these injuries not at the hands of Sunil but by a fall which was the defence No doubt the case involved a very lengthy cross examination of the witnesses for the prosecution who alleged that they had witnessed the entire occurrence The issues to be decided were simple One would have expected that the learned Judge in charging the jury would have at least pointed out to the jury what were the points for determination after weighing the evidence pro and con in the case but the learned Judge did not in spite of the voluminous charge put these simple points before the jury The attention of the jury was never directed to these simple matters but on the 25 other hand it was directed to almost everything else No doubt a verdict of the jury is entitled to the greatest weight not only before the Court of trial but in all appeals including that before this Court The law does not allow an appeal against the verdict except only if the Judge in his charge to the jury is guilty of a wrong direction in law or of a substantial misdirection Since the verdict of the jury depends upon the charge the charge becomes a most vital document in judging whether the verdict be sustained or not It is the charge which one has to examine to find out whether the verdict is defective or not Such an important stage in the trial requires that the Judge should be careful to lead the jury to a correct appre ciation of the evidence so that the essential issues in the case may be correctly determined by them after understanding the true import of the evidence on the rival sides A charge which fails to perform this basic purpose cannot be regarded as a proper charge and if it contains also misdirections as to law it cannot be upheld The learned Judge in his charge to the jury began by telling the jury in a sentence or two each what were the essential things they had to remember before making up their minds as to the verdict He told the jury that they were the judges of fact and that it was their function to determine all issues of fact without accepting any view which he might feel disposed to express upon the credibility or otherwise of the witnesses These observations in black and white do read quite well but in view of the fact that the Judge expressed almost no opinion as to the credibility or otherwise of the witnesses it lost in practical application all its point Then the Judge stated that every accused was presumed to be innocent until the contrary was proved and further that the jury should convict only if the facts were compatible with his guilt So far as this direction went nothing can be said against it The Judge next pro ceeded to explain what was meant by the expression fact proved He paraphrased the definition of proved from the Evidence Act In dealing with 4 26 this topic he omitted to explain also the expressions disproved and not proved but that too cannot be said to be a serious defect He then expatiated on reasonable doubt the benefit of which according to him must go to the accused In dealing with this subject he observed as follows The law further says if you have any reasonable doubt then the fact is not proved and the verdict you bring would be a verdict of not guilty If you have no reasonable doubt then the verdict you are to give is the verdict of guilty A further question that you should bear in mind is that you may be in a state where you cannot decide That is a case of benefit of doubt and if you reach such a stage then the law says that you will give the benefit of doubt to the accused That means that if you have a kind of doubt which makes you unable to decide then the accused is not guilty Again if you have no such doubt then the accused is guilty These are the main principles of criminal trial which I think you should bear in mind while you are approaching the evidence in this case This statement of the law is partly true but not wholly true The learned Judge with due respect did not make it clear to the jury that the prosecution case is built up of numerous facts though the fact to be determined is the guilt of the accused and that a reasonable doubt may arise not only in connection with the whole of the case but also in relation to any one or more of the numerous facts which the prosecution seeks to establish Every individual fact on which doubt may be entertained may be held against the prosecution but it does not mean that if the jury entertained a doubt about any individual fact the benefit of that doubt must result in their bringing in a verdict I of not guilty This however seems to be the effect of this direction which incidentally is almost the only direction on the point of law which the learned Judge apart from what I have stated earlier has chosen to give In my opinion the learned Judge should have told the jury that they could give the benefit of the doubt on proof of any individual fact if they felt any doubt 27 about the proof But be should have cautioned them that the totality of facts must be viewed in relation to the offence charged and the benefit resulting in acquittal could be given only if they felt that when all was seen and considered there was doubt as to whether the accused had committed the crime or not The direction on the point of law contained in the above passage was too attenuated and in my opinion misleading and led to the inference possibly that if the jury felt a doubt about even one circumstance they must bring in a verdict of not guilty Having laid down the law to the extent indicated above the learned Judge next explained the ingredients of section 325 of the Indian Penal Code He explained this with reference only to grievous hurt drawing the attention of the jury to fracture of bone or injury endangering life in the definition He failed to say that grievous hurt was only an aggravated form of hurt and that the liability of the accused did not cease if he committed an act which resulted in a simple hurt Indeed the learned Judge did not tell the jury that even if they held that the accused did not cause a grievous injury it would be open to them to hold that he caused a simple injury which would bring the matter within section 323 of the Indian Penal Code I may further point out that after the verdict of I not guilty under section 325 the learned Judge did not question the jury whether they thought that the accused was guilty of causing at least simple hurt The jury gave no reasons they only answered the query whether they thought that the accused was guilty of the offence of causing grievous hurt But they were not questioned whether they thought on the facts of the case that the accused had committed the lesser offence of causing simple hurt It must be remembered that the prosecution case was that two blows were given one causing the injury to the temple resulting in a fracture of the temporal bone and the other causing an injury on the forehead of of Col Mitra One of them was grievous the other was not Of course the jury were perfectly entitled to hold that the accused caused neither of these injuries but it is possible that the jury if questioned 28 would have answered that they thought that the accused had caused the simple injury but not the one resulting in the fracture of the temporal bone The failure to question the jury with regard to the lesser offence completely ruled out that aspect of the case from the minds of the jury with the result that the jury were limited to a case of grievous hurt and not lesser offence These defects in the charge to the jury on matters of law are heightened by the manner in which the facts have been laid before them The charge to the jury as I have stated ran the course of 5000060000 words The matter I have so far discussed is contained in 1000 1500 words Thereafter the learned Judge did nothing more than paraphrase the evidence of each single witness in detail or read out extracts from it Throughout the course of this reading and paraphrasing he made no attempt to connect the evidence with the fact to be tried All that he ever said and he said it with monotonous iteration was that it was for the jury to decide whether they believed the witnesses or not No doubt a Judge in charging the jury is neither compelled nor required to express his opinion on the evidence except on a matter of law But Judges marshll facts and evidence to draw the attention of the jury to what is relevant and what is not They do hot try to place everything that a witness states before the jury It must be remembered that a charge is a vital document and the Judge s summing up is only needed because the minds of the jury must be directed to the salient points in the evidence so that they may avoid the irrelevant or immaterial parts thereof The learned Judge before dealing with the evidence prefaced his remarks by saying this I now propose to take up the prosecution witnesses individually with a view to sum up the evidence of each witness and the suggestions made to each by the counsel for the accused This represents a very fair and adequate summary of what the Judge really did except that he did not sum up the evidence but placed it in its entirety As I have stated he took each witness turn by turn 29 paraphrased his evidence sentence by sentence and read out those portions which he did not paraphrase without trying to draw the attention of the jury to the relevancy or materiality of the various parts The document is composed of a series of narrations with regard to the testimony of the witnesses each portion beginning with the words Then there is the evidence of witness so and so and ending with This is the evidence of witness so and so In between is a voluminous account of everything that each witness stated Not only this no difference was made between the testimony of the eye witnesses and of the formal witnesses in the matter of treatment I quote verbatim from the charge what the learned Judge said with regard to one of the police witnesses Then comes the evidence of Head Constable Mathura Singh He reached No 18 Bondel Road in a lorry and he was accompanied by a constable You remember he was first sent by Pushpa Pal This Head Constable Mathura Singh posted another constable at the gate so as not to allow a crowd to gather He also saw Col Mitter lying unconscious like a dead person covered with a blanket He also had talk with Nirmal I would like to remind you that if any person makes any statement to the police that is not admissible evidence as a rule unless in the case of contradictions which are formally proved as you have seen the Counsel for the accused has proved contradictions in some cases but you must bear in mind that except such cases this is no evidence Then this Constable Mathura Singh went to No 17 with the other constable and posted that other constable at No 17 to control the crowd so as to prevent any one coming out of No 17 And then while he was coming back to No 18 to find out if he could telephone the officer in charge the constable found the officer in charge at the gate of No 18 After Pushpa Pal the Officer in charge came out of No 18 Bondel Road he went to No 17 and brought down the accused That is the evidence of Constable Mathura Singh also This Constable took charge of the accused and left for the thana with the accus 30 ed at about 9 O clock in the morning on the 11th August 1950 Mathura Singh was cross examined and be said in cross examination that he did not note down the names of the persons forming the crowd at No 18 He did not go and find any article at No 17 His evidence is that he was there to guard No 17 so that no one escaped from there It needs no argument to apprehend that all this was not only a waste of the Court s time but was also likely to obliterate the impression which the jury had gathered with regard to the other material evidence in the case This is only one passage quoted from the evidence of one witness Not only were several such witnesses brought to the notice of the jury but even in the evidence of those that were relevant and material there was no attempt made to extricate the relevant from the irrelevant the material from the immaterial the ore from the dross The learned Judge as he had indicated followed the pattern of putting all the evidence before the jury without any attempt to focus their attention on the salient parts of it and without expressing his opinion either for or against the accused There were only two passages in the entire charge in which the learned Judge expressed his opinion One was with regard to an old lady who was an eyewitness and who viewed the incident from the upper storey of a neighbouring house That lady was the one person about whom it could be said that she was entirely disinterested and whose respectability was above reproach She was old and had weak eyesight She had stated that she saw the quarrel going on then she asked for her spectacles and saw properly Whether she saw correctly or not was the question The learned Judge told the jury that the lady was too old and unreliable to be a proper witness without warning them this time that his opinion was not binding on them The other comment is with regard to the medical evidence where the learned Judge in one part promised the jury that he would give them adequate guidance how to weigh the conflicting medical testimony which it appears he forgot to do at the end and in another portion he gave this direction 31 Now gentlemen when a medical witness is called as an expert he is not a witness of fact Medical evidence of In expert is evidence of opinion not of fact Where there are alleged eye witness of physical violence which is said to have caused the hurt the value of medical evidence by prosecution is only corroborative It proves that the injuries could have been caused in the manner alleged and nothing more The use which the defence can make of the medical evidence or any medical evidence which the defence might itself choose to bring is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses Therefore you must remember this particular point of view that if you believe the eye witnesses then there is no question of having it supported by medical evidence unless the medical evidence again in its turn goes so far that it completely rules out all possibility that such injuries could take place in the manner alleged by the prosecution and that is a point which you should bear in mind because if you accept the evidence of the eye witnesses no question of further considering the medical evidence arises at all The only question in that case when you consider the medical evidence is to test the eye witnesses version as to whether any of the particular injuries shown in the report can be caused in the manner alleged by the prosecution But if you don t believe the eye witnesses then consideration of the medical evidence in any manner becomes unnecessary I think this will be gentlemen a convenient time for you to halt otherwise it might be too tiring for you Foreman of the jury expressed the desire to continue the Charge I do not think that the direction is either correct or complete is incorrect because a medical witness who performs a postmortem examination is a witness of factthough he also gives an opinion on certain aspects of the case Further the value of a medical witness is not merely a check upon the testimony of eyewitnesses it is also independent testimony because it may establish certain facts quite apart from the other oral evidence If a person is shot at close 32 range the marks of tatooing found by the medical witness would show that the range was small quite apart from any other opinion of his Similarly fractures of bones depth and size of the wounds would show the nature of the weapon used It is wrong to say that it is only opinion evidence it is often direct evidence of the facts found upon the victim s person However that be these two passages were the only directions given by the learned Judge to the jury the rest of the charge was only a paraphrase of the medical evidence running the course of 15000 words There is also a complete disregard of section 162 of the Code of Criminal Procedure both during the trial and also during the charge Omissions were treated as contradictions and placed before the jury The following two passages extracted from the charge illustrate the defect at both stages Q 151 Did you tell the police that you did not see when the old man was assaulted and who assaulted him A I stated to the police that I had seen the old man being dealt a fist blow but I had not seen him being struck with a rod Q 152 Did you tell the police that you did not see when the old man was assaulted and who assaulted him ANo I did not make that statement I Gentlemen that is a contradiction and it will be for you to judge how far that goes to destroy the credit of this witness Another contradiction was put to him that he did not mention that Sati Mitra was pulled by hair but he says it here You will find from his answer to Question 158 that even before the police he made the statement that Sati Mitra was pushed away The language used was pushed away Then in answers to Questions 161 to 164 further contradictions with this police statement were made out in cross examination The first is that it was not mentioned by him before the police that there was any fist blow on the Colonel secondly that it was not mentioned to the police by him that Sati Mitra intervened in the matter by clasping the Colonel and also on the point whether 33 the Colonel was dragged by his shirt I will read out the relevant questions and answers Q Do you find further that you have stated in the next paragraph after that I also saw another tall person stated to be the second brother was dragging the old man holding his wearing shirt A I saw that person dragging the Colonel by holding his genji and when a fist blow was given to the Colonel Sati Mitter came and clasped him from a side Q 161 Do you find here that all that is written is that you saw the Colonel being dragged and nothing is mentioned about the fist blow and Mrs Sati Mitter clasping her father in law and being pulled away by the hair A I do not know how the police had recorded my statement But I am telling you that what I saw I saw that when a fist blow was given to the Colonel Sati Mitter came and clasped the Colonel from a side and she was thrown down by being caught by her hair Q164 Forget about the genji and the shirt You find here that nothing is mentioned about your evidence that you saw the Colonel being given a fist blow by the accused on the left temple and then Sati Mitter coming and clasping the Colonel round his waist you find that is not mentioned A On my being repeatedly asked about the lathi blow I denied to the police that I had seen any lathi blow being given to him but I said that I had seen a fist blow being given The second passage is even more significant This is how it runs She makes it clear that she saw the incident at different stages having been to the kitchen in the meantime and come back She saw the Colonel after her return from the kitchen She does not remember the dress of the assailant She also says that the gate of No 18 was closed Her evidence has been criticised also for contradiction between her evidence here and her statement to the police first It is said that she said before the police that she heard the hulla herself here she says that it was the children s cries 5 34 which attracted her attention Secondly she said to the police that she came first to the drawing room here she says that she came first to the verandah Thirdly she also said to the police that she saw the person wearing Choti or pants and blue shirs Fourthly before the police she said that she saw the three persons leaving Nirmal and started arguing Here she says that she did not see them arguing Fifthly it is said she told the police she saw the Colonel once go near the pillar of the gate on the western side but she does not say so here Then again it is said that she told the police that she saw the assailant bring out a black looking object from somewhere in his waist and she subsequently saw the old man fallen down She said here that she did not see the old man falling down Gentlemen you will again weigh these contradictions and see whether they are such as to discredit the witness or are such for which you can make allowance In fact she said in cross examination that I something was brought out by the assailant from his right side I think gentlemen of the jury you also asked her some questions Q During the examination it appears that you have told us that you saw Colonel Mitter being drawn towards 17 Bondel Road A He was being dragged in the direction of the Mansion House Q 111 That is towards the west of the path A Yes Q 112 How far was he from the boundary walls abutting the Bondel Road A I would not be able to tell you that because I was seeing this from above from a height Then the last question to her was this Q 113 You have just given us more or less what you saw Could you also tell us exactly on what part of the lawn was it at the central portion of the lawn or was it on the side of the lawn that you saw that one person who was with the Colonel was bringing out something from his side At what position were the Colonel and that gentleman standing 35 A It is difficult for me to describe the position But I can say that he was neither in the exact centre of the lawn nor was he absolutely on an extreme side of the lawn He was somewhere about 4 or 5 cubits way from the gate of the boundary wall In the previous trials the Calcutta High Court rejected the verdict of the jury because in the opinion of Chakravarti CJ Sarkar J concurring it was all comment and no evidence It may be said that this time it was all evidence and no comment or arrangement The Calcutta High Court has laid down in a series of cases what the charge to the jury should be and I shall refer only to the Calcutta cases There is no settled rule or practice as to what a charge should or should not contain That is dictated by the circumstances of each case Sir James Fitz James Stephen in his History of Criminal Law of England Vol 455 456 quoted in Trial by Jury and Misdirection by Mukherji 1937 Edn at p 237 says The summing up again is a highly characteristic part of the proceedings but it is one on which I feel it difficult to write I think however that a Judge who merely states to the Jury certain propositions of law and then reads over his notes does not discharge his duty This course was commoner in former times than it is now I also think that a Judge who forms a decided opinion before he has heard the whole case or who allows himself to be in any degree actuated by an advocate s feelings in regulating the proceedings altogether fails to discharge his duty but I further think that he ought not to conceal his opinion from the Jury nor do I see how it is possible for him to do so if he arranges the evidence in the order in which it strikes his mind The mere effort to see what is essential to a story in what order the important events happened and in what relation they stand to each other must of necessity point to a conclusion The act of stating for the Jury the questions which they have to answer and of stating the evidence bearing on those questions and in showing in what respect it is important generally goes a considerable way 36 towards suggesting an answer to them and if a Judge does not do as much at least as this he does almost nothing As pointed out by Mukerji ibid p 253 Where the charge to the Jury was little more than a rambling statement of the evidence as it came from the mouths of the several witnesses who were called and no attempt was made to sift the relevant and important matters from the irrelevant and unimportant facts held that the charge was defective and the trial was vitiated on that account Jabed Sikdar 1 It is not sufficient for the Judge simply to point out this peace of evidence and that this presumption and that this bit of law and that It is his duty to help and guide the Jury to a proper conclusion It is his duty to direct the attention of the Jury to the essential facts It is his duty to point out to them the weight to be attached to the evidence and to impress upon them that if there is any doubt in their minds they must give the benefit of the doubt to the accused It is not enough that the Judge has said something on each of these matters somewhere in the charge It is the manner of saying it the arrangement and the structure of his charge which will make it either of value or valueless to the Jury Molla Khan 2 It is not enough to read out the evidence in extenso it is incumbent on the Judge to analyse it and place it succinctly before the Jury Rajab Ali 3 The charge in this case goes manifestly against these directions It is no more than a recital of the entire evidence in the case almost as detailed as the evidence itself and there is no attempt whatever to give any guidance to the Jury No doubt the Privy Council in Arnold vs King Emperor4 stated that A charge to a Jury must be read as a whole If there are salient propositions of law in it these will of course be the subject of separate analysis But in a protracted narrative of fact the determination of which is ultimately left to the jury it must 1 2 AIR 1934 Cal 169 SB 3 AIR 1927 Cal 4 1914 LR 4I IA 149 37 needs be that the view of the Judge may not coincide with the view of others who look upon the whole proceedings in black type It would however not be in accordance with usual or good practice to treat such cases as cases of misdirection if upon the general view taken the case has been fairly left within the Jury s province These observations apply only if the matter has been fairly left to the jury When this charge is read through its vast length the most astute person is left guessing as to where it was all driving the jury to It is a protracted narrative no doubt but it is so amorphous as to give no indication of its real purport and import and leaves the matter not in the hands of the jury but if I may so say with great respect in the air I think that this was a case for the exercise of the powers of this Court under article 136 As was laid down in Ramkrishan Mithanlal Sharma vs The State of Bombay1 the Judge in summing up for the prosecution and defence should not give merely a summary of the evidence he must marshall the evidence so as to give proper assistance to the jury who are required to decide which view of the facts is true I am therefore of opinion that the charge to the jury cannot be said to be a proper charge on any principle or precedent and that the verdict cannot be accepted Though this case has taken already almost ten years there is prima facie reason to think that justice has failed Since the matter is now before the highest Court there is no likelihood of any further delay in the case and what is just therein can be done I would therefore proceed to hear the case on merits By Court In accordance with the opinion of the majority this appeal is dismissed Appeal dismissed 1 930

On the refusal of the appellant employer to fix the minimum wages and rates for contract work of the workmen respondents who alleged that they were paid below the level of bare subsistance wage the dispute was referred to the Industrial Tribunal for adjudication The first Tribunal could not fix any minimum basic wage and the award of the second Tribunal which fixed a scale was set aside on the ground that the appointment of the Tribunal was not published according to law The third Tribunal ultimately fixed the basic minimum wage on the industry cum region basis after considering the rates prevalent in various parts of the country and a place nearest to the appellant company The minimum awarded by the Tribunal was slightly increased by the Labour Appellate Tribunal in accordance with a statutory notification issued under the XI of 1948 which had come into force after two years of the award of the Tribunal and by which a scale of minimum wage and dearness allowance was fixed On appeal by the appellant company by special leave Held that the Labour Appellate Tribunal committed no error of law in awarding the same minimum basic wage which was statutorily fixed and which came into force only two years after the award of the Tribunal In determining the minimum basic wage the fact that a large amount of dearness allowance was paid to the employees in other comparable occupations in the same region should not be ignored In order that the Central Government might itself become the appropriate Government within the meaning Of section 2ai of the Industrial Development and Regulation Act 1951 65 of I 95 1 it must specify in that behalf that the industry in question was a controlled industry If the services of one Tribunal were not available to the appropriate Government it was perfectly competent to that Government to appoint another Tribunal to take up the work of adjudication

minal Appeal No 159 of 1956 Appeal from the Judgment and Order dated June 25 1956 of the Calcutta High Court in Criminal Revision No 870 of 1956 arising out of the judgment and order dated May 5 1956 of the Sessions Judge Howrah in Criminal Petition 8 of 1956 against the judgment and order dated February 20 1956 of the Magistrate First Class Howrah in Case No 1 C of 1954 N C Chatterjee section K Kapur and Nanak Chand Pandit for the appellant section C Mazumdar for the respondent January 15 Judgment of section K Das and A K Sarkar JJ was delivered by section K Das J Hidayatullah J delivered a separate Judgment I section K DAS J The appellant Ballavdas Agarwala was the proprietor of a restaurant in the Railway premises at Howrah Railway Station within the Municipality of Howrah and his servant Shyamlal Missir was in charge of that restaurant Under an agreement with the Railway authorities the appellant 742 had taken out a vendor s license dated January 91952 by which he was permitted to sell or exhibit for sale sweetmeats betel bidi cigarettes etc but not specifically including butter at the Howrah goods shed On December 2 1953 during the currency of the license the Health Officer of the Howrah Municipality along with his Sanitary Inspector and a peon visited the establishment and found that butter was being sold from glass jars standing on a table between the customers and the vendor The appellant was then absent and Shyamlal was dealing with the customers The Sanitary Inspector then took three samples from an one pound slap of butter which was taken out of a glass jar that was fully exposed to public view and which stood open on the selling counter The samples were taken in clean bottles sealed and labelled on the spot under a seizure list which Shyamlal signed A sum of Rs 2 was also given to Shyamlal as the price of the sample butter One of the samples was later sent to the Health Department of the Government of West Bengal for analysis and report The Public Analyst of West Bengal sent a report stating that the butter in question was grossly adulterated and did not contain any butter fat and also contained a large excess of water On January 2 1954 the Sanitary Inspector filed a complaint before the magistrate of Howrah asking for the issue of summons to the appellant and his servant Shyamlal for an offence under sections 488406 and 407 of the Calcutta Municipal Act 1923 as extended to the Municipality of Howrah The complaint was signed in token of sanction by the Health Officer of the Municipality On the aforesaid complaint the appellant and his servant were put on trial Their defence was that it was not a case of voluntary sale nor of a sale of butter The learned Magistrate who tried the case in the first instance held that no case of selling adulterated butter was made out and the reason which the learned Magistrate gave for his finding was that the butter purchased by the Sanitary Inspector was not purchased from the jar from which butter was being sold to other customers The learned Magistrate acquitted both the accused persons 743 The Administrator Howrah Municipality then preferred an application in revision to the High Court of Calcutta The High Court set aside the order of acquittal and ordered a retrial by another magistrate At the retrial several points were taken on behalf of the appellant one of which was that at the relevant time the Health Officer had no power to sanction the prosecution This time the trying magistrate foundagainst the appellant on all questions of fact and onthe question of sanction he referred to certain orders of the Chairman of the Municipality and held that the power delegated to the Health Officer by one of thoseorders had not been revoked and therefore the HealthOfficer was competent to sanction the prosecution The appellant was accordingly convicted under sections 406 and 407 read with section 488 of the Calcutta Municipal Act and sentenced to a fine of Rs 200 or in default simple imprisonment for 30 days The appellant then moved the learned Sessions Judge of Howrah for a reference to the High Court but without success An application in revision was then moved in the High Court but this was summarily dismissed by a Single Judge From that summary order of dismissal the appellant asked for and obtained from a Division Bench of the High Court a certificate for leave to appeal to this Court under Article 1341c of the Constitution While granting th certificate Das Gupta J giving the decision of the Division Bench said On the 4th July 1951 in my opinion the Health Officer of the Municipality had no longer in him the powers to order prosecution in any case regarding the Health Department and that power was at that time vested in the Vice Chairman of the Municipality Shri Sankar Lal Mukherjee as a result of delegation by the Chairman by the order Exhibit D On the 12th December 1952 the new Chairman Shri K C Datta passed a further order revoking his previous order dated 4th July 1951 so far as it related to the Health Department The position therefore after 12th December 1952 was that the Chairman of the Howrah Municipality 744 himself was the only person compent to exercise the powers of Commissioners under Section 537 of the Calcutta Municipal Act If therefore the proceedings unless instituted by the Commissioners in accordance with Section 537 of the Calcutta Municipal Act cannot form the legal basis of any conviction for contravention of any provision of that law the conviction in this case must be held to have no legal basis He expressed the view that the question of the true import and effect of the provisions of section 537 of the Calcutta Municipal Act 1923 was a question of general public importance which should be settled by this Court The present appeal has come to us on the aforesaid certificate On behalf of the appellant it has been argued that 1 the appellant was not responsible for the sale because the licence did not authorise the sale of butter and 2 there was no adulteration of butter because there was no butter fat in the sample analysed On these two points we are in agreement with the conclusion reached by our learned brother Hidayatullah J and we do not think it necessary to repeat what he has said in support of that conclusion We proceed now to consider the question of the power and authority of the Health Officer to sanction the prosecution in the present case On this question we have reached a conclusion different from that of our learned brother It is not disputed before us that the sanctioning of prosecution for selling or storing adulterated food is a matter which concerns the Health Department of the Municipality and any delegation of powers in respect of the Health Department will include the power to sanction prosecution for selling adulterated food unless otherwise expressly stated in the order of delegation In the High Court at the stage of the application for a certificate for leave to appeal counsel for the Municipality relied on section 51 of the Bengal Municipal for his contention that the Chairman was entitled to exercise all the powers vested in the Commissioners and could delegate his powers to any other Municipal Officer It appears now that the relevant section is section 12 of the Calcutta Municipal Act 1923 as applied to Howrah Under sub section 1 of section 12 the Commissioners may by a resolution passed at a special meeting delegate to the Chairman any of their powers duties and functions under the Calcutta Municipal Act 1923 as in force in the Municipality of Howrah or under the Bengal Municipal Act 1884 or under any rule or bye law made thereunder Under sub section 2 the Chairman may by a general or special order in writing redelegate to the Vice Chairman or any Municipal officer any of the powers duties or functions which have been delegated to him by the Commissioners We may therefore proceed on the basis as did the High Court with reference to section 51 of the Bengal Municipal Act 1932 that the Commissioners could delegate to the Chairman their powers under section 537 by a resolution passed at a special meeting and the Chairman in his turn could redelegate those powers by a general or special order to the Vice Chairman or a Municipal officer The question before us is did he do so by a valid subsisting order at the relevant time The relevant date is the date of the complaint which was made on January 2 1954 Therefore we have to see what the position was on that date The first difficulty in the way of the respondent is that it led no evidence in this case to show that the provisions of section 121 of the Calcutta Municipal Act 1923 were complied with and the Commissioners by a resolution passed at a special meeting delegated their powers under section 537 to the Chairman Even if we ignore this difficulty on the ground that no question regarding the powers of the Chairman was raised and therefore no evidence was given on the point there is a second and in our opinion insuperable difficulty An Order Book of the Chairman of the Howrah Municipality containing extracts of orders passed by the Chairman of the Municipality from May 9 1938 to April 22 1957 was 95 746 filed in the case This book is however of very little use to us It does not give the terms of the orders northeir dates It contains a reference to orders under other sections but not under section 537 The five orders with which we are concerned were exhibited separately and to those we now turn The first order is the one dated February 6 1948 by which the then Chairman of the Howrah Municipality delegated to the Vice Chairman all his powers duties and functions as Chairman in respect of seven departments including the Health Department This was followed by a second order passed on December 20 1949 which was in the following terms I hereby delegate my powers and functions to the Health Officer to order prosecution to sign prosecution sheets in respect of cases concerning the Health and Conservancy Departments The third order came on April 7 1951 on the eve of the new election This third order so far as it is relevant for our purpose stated Till the election of Executives by the New Board I delegate all my powers and functions except those that are delegated to the Vice Chairman to respective officers of departments The exact date on which the new election took place is not known but it is admitted that some time between April 7 1951 and July 4 1951 the New Executives had come into being On July 4 1951 the New Chairman passed the following order I hereby delegate to the Vice Chairman Sri Sankar Lal Mukherjee all my powers duties and functions as Chairman in respect of the following departments which are placed under his charge 1 Assessment Department Except power under Section 146 C M Act Health Department Building Department Lighting Department Accounts Department Cash Department The fifth order was passed on December 121952 which said 747 I hereby revoke my order dated the 4th July 1951 so far as it relates to the Health Department which shall henceforth be direct under my chargeuntil further orders This will take effect from 15th December 1952 The question before us is what is the effect of the aforesaid five orders It is clear that by the order dated February 6 1948 the Chairman delegated his powers to the Vice Chairman in respect of the Health Department and by the next order dated December 20 1949 he delegated his powers to the Health Officer in respect of certain particular matters such as ordering prosecution and signing complaints concerning the Health and Conservancy Departments On April 7 1951 however the Chairman passed another order which imposed a time limit by the expression Till the election of the Executives by the new Board The question is if this time limit affected the operation of the second order dated December 20 1949 so that it would come to an end with the election of the new Executives and the position thereafter would be governed by the orders dated July 4 1951 and December 12 1952 Ex Facie it appears to us that the order dated April 7 1951 affects the operation of the second order dated December 20 1949 The two orders placed side by side cannot stand together unless the earlier order is read as modified by the latter order The earlier order delegated the power of the Chairman in respect of some particular matters mentioned therein to the Health Officer the latter order states that it delegates all the powers of the Chairman to respective officers of Departments till the election of the new Executives We have emphasised the word all occurring in the latter order as it must include the particular powers referred to in the earlier order It cannot be that in the same field the two orders will operate one un limited and the other limited by a time factor It has however been submitted to us that they do not operate in the same field and three reasons have been given firstlyit is said that the order dated April 7 1951 is a general order which does not affect the order dated 748 December 20 1949 which is a special order and for this the principle of generalia specialibus non derogant is invoked secondly it is said that the time limit imposed by the order dated April 7 1951 related to such delegation as is made by that order itself and thirdly it is said that if the time limit imposed by the order dated April 7 1951 applies even to earlier administrative orders then there would be great inconvenience by such orders coming abruptly to an end as the new Executives come into existence We shall now deal with these reasons We do not think that the question is one of the application of the principle of generalia specialibus non derogant Apart from any doubt that may arise as to whether such a principle is applicable to orders by which the Chairman redelegated powers delegated to him by the Commissioners we think that the real answer to the question must be found in the words used in the order The order dated April 7 1951 makes an exception in favour of the Vice Chairman it says except those that are delegated to the Vice Chairman This obviously has reference to the delegations already made in favour of the Vice Chairman because the order makes no new delegation in favour of the Vice Chairman It states in terms that the time limit applies to all delegations except those made in favour of the Vice Chairman Only one exception is made and if the intention was that there would be other exceptions the order would have said so The order does not say so on the contrary it is expressed in language of the widest amplitude to include within itself all delegations of power except those made in favour of the Vice Chairman We are not impressed by the argument of administrative inconvenience Obviously the object of the order of April 7 1951 was to leave the new Chairman free to pass his own orders of delegation and not to fetter the discretion of the new Executives in any way that is why in the matter of delegation a time limit was imposed We do not have in the records full details of all orders of delegation made by the new Chairman We 749 have only two orders dated July 4 1951 and December 12 1952 By order dated July 4 1951 the new Chairman delegated his powers to the Vice Chairman in respect of six departments including the Health Department though the earlier delegation in favour of the Vice Chairman was not subject to any time limit The order dated December 12 1952 is important It not merely revoked the order dated 4 1951 but said that the Health Department shall hence forth be direct under my charge until further orders If earlier special orders regarding the Health Department were subsisting on December 12 1952 the Chairman would not have used the words which he used on that date We are therefore of the view that in the absence of a fresh order of delegation of which there is no evidence in the record the Health Officer of the Howrah Municipality was not empowered as the duly delegated authority to institute criminal proceedings against the appellant on the date on which he made the complaint Whether as an ordinary citizen he could file the complaint takes us to the next question are the provisions section 537 merely enabling or are they obligatory in the sense that no legal proceeding under the Calcutta Municipal Act 1923 as in force in the Municipality of Howrah can be instituted except in accordance with the provisions of that Act It is necessary to read at this stage section 537 It is in these terms The Commissioners may ainstitute defend or withdraw from legal proceedings under the Calcutta Municipal Act 1923 as in force in the Municipality of Howrah or under any rule or byelaw made thereunder bcompound any offence against the Calcutta Municipal Act 1923 as in force in the Municipality of Howrah or against any rule or bye law made thereunder which under any enactment for the time being in force may lawfully be compounded cadmit compromise or withdraw any claim made under the Calcutta Municipal Act 1923 as in 750 force in the Municipality of Howrah or under any rule or bye law made thereunder and d obtain such legal advice and assistance as they may from time to time think it necessary or expedient to obtain for any of the purposes referred to in the foregoing clauses of this section or for securing the lawful exercise or discharge of any power or duty vesting in or imposed upon the Commissioners or any Municipal officer or servant On behalf of the appellant it has been urged before us that the provisions of section 537 are obligatory and the principle invoked in aid of this construction is that adopted by the Privy Council in Nazir Ahmad vs King Emperor 1 viz that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all In other words the argument of learned counsel for the appellant is not that the word must must necessarily be read for the word may in section 537 but that if a legal proceeding is to be instituted under the Municipal Act in question it must be done in accordance with the provisions of the Act and not otherwise On behalf of the respondent however the contention is that section 537 is merely enabling in nature as the use of the word may shows and the general principle embodied in the Code of Criminal Procedure of taking cognisance of an offence on a complaint by even a private person is not in any way affected by section 537 These are the rival contentions which fall for consideration and we are of the view that the construction put on the section on behalf of the appellant is the sounder and more acceptable construction The section talks of various acts which the Commissioner may do and these acts have been put in four categories under clauses a b c and d We are primarily concerned with clause a which talks of three things institute defend or withdraw from legal proceedings under the Calcutta Municipal Act 1923 It can hardly be doubted that the section does not compel the Commissioners to institute defend or withdraw from legal proceedings for example 1 1936 LR 63 IA 372 at 381 751 clause d says obtain such legal advice and assistance as they may from time to time think it necessary or or expedient to obtain etc This obviously shows that the Commissioners are not compelled to obtain legal advice In the context the use of the word may is therefore appropriate But the question still remains if the Commissioners wish to do any of the acts mentioned in section 537 must they do so in accordance with the provisions of the Act We think that they must otherwise section 537 becomes clearly otiose What is the necessity of section 537 if the Commissioners can do the acts mentioned therein independent of and in manner other than what is laid down therein Learned counsel for the respondent suggested that section 537 was enacted by way of abundant caution to enable the Municipality a body corporate to spend money on the institution of legal proceedings etc We are not impressed by this argument Like all other Municipal Acts the Calcutta Municipal Act 1923 has a section section 5 which constitutes the Municipality into a body corporate and there are detailed provisions about Finance Loans Accounts Taxation etc Section 84 of the Calcutta Municipal Act 1923 lays down 84 1 The moneys from time to time credited to the Municipality shall be applied in payment of all sums charges and costs necessary for carrying out the purposes of this Act or of which the payment is duly directed or sanctioned by or under any of the provisions of this Act 2Such money shall likewise be applied in payment of all sums payable out of the Municipal Fund under any other enactment for the time being in force Obviously therefore no other separate provision for expenditure of money in connection with the acts mentioned in section 537 was necessary by way of abundant caution We are therefore unable to accept as correct the reason given by learned counsel for the respondent for the insertion of section 537 There are other provisions of the Act which also throw some light on the question Section 531 752 provides for the appointment of Municipal Magistrates for the trial of offences under the Act and the rules or bye laws made thereunder Section 532 provides for cognisance of offence by Municipal Magistrates having jurisdiction in Calcutta section 533 gives power to hear a case in the absence of the accused person section 534 prescribes a period of limitation for prosecution and section 535 says who can make a complaint of the existence of any nuisance Under section 535 the complaint can be made either by the Municipality or any person who resides or owns property in Calcutta The above provisions are followed by sections 537 538 and 539 Section 537 gives power to the Municipality to institute legal proceedings etc section 538 deals with suits against the Municipality and section 539 provides the usual indemnity clause An examination of the aforesaid provisions showsthat the Calcutta Municipal Act 1923 provides inter alia for a machinery for proceedings before Magistrates and other legal proceedings All these provisions can have one meaning only viz that the machinery provided in the Act must be followed in enforcing these provisions It would we think be against the tenor and scheme of the Municipal Act to hold that section 537 is merely enabling in nature and that any private person may institute a legal proceeding provisions of the Act We now turn to such authorities as have been brought to our notice We may say at once that no decision directly in point has been brought to our notice It is well to remember however that the phraseology adopted in different Municipal Acts is not the same Some Municipal Acts have adopted a phraseology which leaves no doubt in the matter eg section 375 of the Bihar and Orissa Municipal Act 1922 which says No prosecution for any offence shall be instituted without the order or consent of the Commissioners Section 353 of the Bengal Municipal Act 1884 was in similar terms Having regard to the phraseology so adopted there are decisions which say that the sections there considered were 753 obligatory and sanction or consent of the Commissioners was necessary We have however seen no decision directly bearing on section 537 of the Calcutta Municipal Act 1923 except one to which we shall presently refer and that decision was given in an entirely different context We may refer first to some decisions which deal not with a Municipal Act but other Acts Sections 82 and 83 of the Indian have given rise to a divergence of views which need not detain us see Gopi Nath vs Kuldip Singh 1 Nga Pan Gaing vs King Emperor2 and Emperor vs Muhammad Mehdi and Others 3 We do not think that the said provisions in the Indian are in pari materia and the decisions given on the terms of those sections are not of much assistance in solving the problem before us There is a decision of this Court on which learned counsel for the respondent has placed some reliance Dr Sailendranath Sinha and Another vs Josoda Dulal Adikary and Another4 That decision dealt with sections 179 and 237 of the Indian Companies Act 1913 and it was held that there was nothing in those sections which indicated that if a liquidator took action without a direction of the court that action would be illegal or invalid The decision proceeded on the terms of the sections there considered and is of no help in construing section 537 of the Calcutta Municipal Act 1923 Now we come to the decisions under the Municipal Act In Sisir Kumar Mitter vs Corporation of Calcutta it was observed Section 537 of the Calcutta Municipal Act as we read it is merely an enabling section and the powers given thereunder to do the various acts specified therein can in our opinion only be exercised in accordance with the provisions of the Code of Criminal Procedure Learned counsel for the respondent relies on these observations in support of his contention that the 1 1885 1 2 Rangoon 437 3 All 412 4 5 Cal 96 754 provisions of section 537 are merely enabling provisions It is worthy of note however that the precise question for decision in that case was entirely different The question there raised was whether the provisions of section 248 of the Criminal Procedure Code were affected or abrogated by section 537 of the Calcutta Municipal Act What happened in that case was that the Sanitary Inspector of the Corporation as the complainant filed a petition of withdrawal but the magistrate rejected the application On a later date the accused was absent and a warrant of arrest was issued against him The accused then moved the High Court and the main ground taken was that the magistrate should have allowed the withdrawal because section 537 of the Calcutta Municipal Act must be held to have modified the provisions of section 248 of Criminal Procedure Code and taken away the discretion of the magistrate not to permit withdrawal of the case This contention was negatived and it was held that section 248 of Criminal Procedure Code was neither abrogated nor modified by section 537 of the Calcutta Municipal Act It was incidentally observed that the Corporation being a creature of the statute it was necessary to give it specific power to institute defend or withdraw from legal proceedings We do not read the decision as deciding the question if a private person can institute a legal proceeding under the Calcutta Municipal Act independent of the provisions of that Act It decided merely the short point that section 248 of Criminal Procedure Code was not modified nor abrogated by section 537 of the Calcutta Municipal Act this clearly was right because section 537 does not compel the Municipality to to withdraw from a legal proceeding nor does it impose any obligation on the Court to accept such withdrawal The other observation made therein appear to us to be obiter and it is unnecessary for us to consider the correctness of those observations though learned counsel for the appellant relying on The Minister of Works and Planning vs Henderson and Others 1 has contended that the mere fact of incorporation without reservation confers on a body corporate the privilege of suing and the liability to be sued 1 1947 1 KB 91 755 The next decision is that of Keshabdeo Kedia vs P Banerjee Sanitary Inspector Howrah Municipality1 This related to section 535 of the Calcutta Municipal Act and it was held that a magistrate was not entitled to act under section 5352 upon a complaint filed by the Sanitary Inspector in his personal capacity in the absence of anything to show that he was authorised by the Chairman of the Municipality or was complaining on behalf of the Municipality or resided or owned property in Calcutta This decision helps the appellant to the extent that it holds that the right of a private person to make a complaint is cut down by section 535 In The State vs Manilal Jethalal 2 sections 481 and 69 of the Bombay Provincial Municipal Corporations Act 59 of 1949 came in for consideration Section 481 of that Act gave the Commissioner power to take or withdraw from proceedings in respect of an offence committed under the Act The complaint in that case was filed by the Jilla Inspector and the argument was that he was not authorised by the Commissioners to take proceedings This argument was dealt with in the following observations Now it is quite true that the object of section 69 sub section 1 is to empower the Commissioner to delegate his powers under the Act to other Municipal officers with a view that the Commissioner may not himself be burdened with duty of deciding whether any action should be taken against a person who it is alleged has committed an offence either against the Act or the rules It is also true that whenever the Act gives any power to a Commissioner the power must be exercised by him or by an officer to whom the Com missioner s power is delegated under the provisions of section 69 But we do not think that it would be correct to restrict the meaning of the words take proceedings to actually filing a complaint The object of section 481 is that whenever it is alleged that any person has committed an offence under the Municipal Act or under the rules framed under the Act he should not be prosecuted unless either the Commissioner himself 1 2 AIR 1953 Born 756 or some responsible officer has had an opportunity of applying his mind to the question as to whether a prosecution should or should not be instituted But once this has been done there does not seem to be any particular necessity for requiring that if it is decided to prosecute the complaint must actually be lodged by the Commissioner or the officer to whom his powers are delegated It is quite true that that words take proceedings may mean to lodge the complaint oneself But we think that that is not the only meaning which can be given to these words It also means to do an act by which a prosecution would be lodged This decision also help the appellant in so far as it lays down that whenever the Act gives any power to a Commissioner the power must be exercised by him or by an officer to whom the Commissioner s power is delegated The decision proceeded however on a somewhat wide meaning given to the words take proceedings that part of the decision as to the correctness of which we say nothing does not concern us here because the words used in section 537 of the Calcutta Municipal Act are different Our attention has been drawn to four English decisions where a private person was held competent to make a complaint in respect of 1 consumption of refreshments in places of public resort 2 sale of margarine 3 acts of cruelty to animals and 4 sale of unsound meat Cole vs Coulton 1 Buckler vs Wilson 2 The Queen vs Stewart 3 Giebler vs Manning 4 All these four decisions proceeded on the terms of the statutes under which the offences were alleged to have been committed and it was held that those statutes did not contain any provisions which made it obligatory that the complaint should be made by a particular authority in a particular manner They do not really help the respondent to establish his contentions that in spite of section 537 Calcutta Municipal Act a private person can institute a legal proceeding under the said Act They take us back 1 2 Ellis Ellis 695 2 1896 1 QBD 83 3 4 751 to the point from which we started namely what is the true nature and import of section 537 of the Calcutta Municipal Act If it is obligatory in the sense explained earlier the appellant is entitled to succeed If it is merely enabling then the respondent is entitled to succeed The decision in The Queen vs Stewart 1on which learned counsel for the respondent strongly relied dealt with the provisions of the Diseases of the Animals Act 1894 Lindley LJ said Reading those sections together they in fact affirm the right of any person to prefer an information in most significant terms Is there anything in the Act or the Order which so clearly restricts that right that we ought to say that in this case no one but the borough council had the right to take proceedings I can find nothing of the kind Giebler vs Manning 2 was decided on the terms of section 47 sub section 2 of the Public Health London Act 1891 and the question was could a private person institute proceedings under section 47 sub section 2 Lord Alverstone C J answered the question in the following observations Having regard to the object of the statute the protection of the public against the offering of diseased meat for sale I think that if it had been intended to limit the right to take proceedings for the recovery of penalties to a limited class of persons such as medical officers and sanitary inspectors words would have been introduced into the section taking away from private persons the right to lay informations under the section Lastly there is the decision in The Queen vs Cubitt 3 This was a case under the Sea Fisheries Act 1883 46 and 47 Vict c 22 section 11 of which said The provisoes of this Act shall be enforced by seafishery officers It was held that the effect of the above words was that no one except a sea fishery officer could prosecute for an offence against the Act and a rule calling upon the justices to hear and determine a summons for an offence against the Act taken out by a private individual was discharged Lord Coleridge C J observed 1 2 3 758 any one may enforce the Act section 11 is useless I do not think that negative words are required to exclude proceedings by persons other than sea fishery officers For instance if an Act provided that the Attorney General was to sue for a penalty no one else could sue for it it is obvious that if everyone could sue for the penalty the Attorney General could sue for it so that on that view of the statute the clause enabling him to sue would be unnecessary and useless On a parity of reasoning if anybody can institute a legal proceeding under the Calcutta Municipal Act section 537 thereof becomes practically useless Even without that section the Municipality could do the acts specified therein and it is difficult to understand the necessity of a provision like section 537 unless the intention was to confer a power on the Municipality which power must be exercised in accordance with the provisions of the Act and not otherwise It was faintly suggested that the absence of a complaint by the Commissioners or the Chairman or a duty delegated authority was a mere error or irregularity which could be cured under section 537 Criminal Procedure Code Our attention was also drawn to section 79 of the Calcutta Municipal Act 1923 In the view which we have taken the absence of a proper complaint was not a mere defect or irregularity it affected jurisdiction and initiation of proceedings For these reasons we allow the appeal and set aside the conviction and sentence passed against the appellant The fine if paid must be refunded to the appellant HIDAYATULLAH J In this appeal which has been filed on a certificate of fitness under article 134 1c of the Constitution granted by the Calcutta High Court the appellant challenges his conviction under sections 406 and 407 read with section 488 of the Calcutta Municipal Act as applied to Howrah and the sentence of fine of Rs 200 in default simple imprisonment for 30 days The appellant Ballabhdas Agarwala is the proprietor of a chain of restaurants and one such restaurant is at the Howrah Railway Station He had 759 entered into an agreement with the railway and had taken out a vendor s licence No 54 of 1951 datedJanuary 9 1952 by which he was permitted to sell or exhibit for sale sweetmeats betel bidi cigarettes tea cake bread and biscuits and parched gram at Howrah goods shed between January 6 1951 and December 31 1953 On December 21953 the Health Officer a Sanitary Inspector and a peon of the Howrah Municipality visited the restaurant whore the servant of the appellant one Shyamlal Missir was in charge Onthe counter there was a jar containing butter This butter was being sold to customers TheSanitary Inspector took three samples of this butter from an one pound slab and put them into three clean bottles which were sealed and labelled Missir was paid Rs 2 as the price One bottle was left with Missir as required by the rules Of the remaining two bottles one was sent for analysis of the sample to the Public Analyst West Bengal On the report of the Analystthat the sample did not contain any butter fat at alland contained an excess of water the Health Officeraccorded sanction for the prosecution of the appellant and Missir The complaint was signed by the Sanitary Inspector as well as the Health Officer The case was tried summarily and the Magistrate acquitted both the accused because in his opinion the samples were taken not from the jar from which butter was being sold to the other customers but from another jar The High Court however set aside the order and the case was retried It resulted in theconviction and sentence of the appellant as stated above The Sessions Judge appellate jurisdiction who was moved by a criminal motion rejected the motion The appellant then moved the High Court in revision but Debabrata Mookerjee J dismissed it summarily The appellant applied for and obtaineda certificate of fitness under article 134 1 c of the Constitution and filed this appeal Three points were argued before us The first was that by the terms of the agreement and licencethe appellant was not authorised to sell butter and 760 thus he was not responsible for the sale in question It was contended that the sale might have been made by Missir on his own account This contention is without substance That there was a sale of the seized article at the restaurant of the appellant goes without saying Sections 406 and 407 of the Calcutta Municipal Act make the sale of adulterated or misbranded article an offence and every person who sells such article directly or indirectly himself or by any other person is liable Even though such sale might be outside the permit of the vendor s licence the seized article was in fact sold The words of the sections vicariously fasten the responsibility on masters for the acts of the servants and the maxim qui facit per alium facit per se applies The finding is that the sale was for and on behalf of the proprietor and in view of the clear words of the section he would be answerable Next it was argued that this was not a case of adulteration at all because there was in fact no butter fat in the sample analysed Reference was made to a decision of the Punjab High Court in Mangal Mal vs The State 1 in support of the contention that the prosecution for the sale of adulterated butter was defective No doubt the ordinary sense of Adulteration connotes the mixing of deleterious or other substance with the main basic article but the definition in the Act has been widened to include even those articles where the contents do not include the basic substance either wholly or partly In view of the definition this line of criticism was rightly not pressed The last point is the main argument in this case on the strength of which the certificate was obtained The argument is that the complaint presented to the Court in this case was by an unauthorised person and was thus no complaint at all The argument embraced a consideration of certain sections of the Calcutta Municipal Act 1923 as applied to Howrah and of the Bengal Municipal Act 1932 and the notifications issued under them The first section to which reference 1 AIR 1952 Pun 761 was made is section 537 of the Calcutta Municipal Act in its application to Howrah Municipality It reads thus The Commissioners may a institute defend or withdraw from legal proceedings under the Calcutta Municipal Act 1923 as in force in the Municipality of Howrah or under any rule or by law made thereunder b compound any offence against the Calcutta Municipal Act 1923 as in force in the Municipality of Howrah or against any rule or by law made thereunder which under any enactment for the time being in force may lawfully be compounded c admit compromise or withdraw any claim made under the Calcutta Municipal Act 1923 as in force in the Municipality of Howrah or under any rule or by law made thereunder and d obtain such legal advice and assistance as they may from time to time think it necessary or expedient to obtain for any of the purposes referred to in the foregoing clauses of this section or for securing the lawful exereise or discharge of any power or duty vesting in or imposed upon the Commissioners or any municipal officer or servant It is contended for the appellant that the Commissioners are the only body of persons who could have instituted the complaint In reply it is pointed out that under section 12 of the Calcutta Municipal Act as applied to Howrah the Commissioners can delegate their functions to a Chairman by a resolution passed at a special meeting and the Chairman can also by a general or special order in writing re delegater any of the delegated powers to the Vice Chairman or to any municipal officer This power of delegation authorises both the Commissioners as well as the Chairman to delegate or re delegate as the case may be their powers under the Bengal Municipal Act also The Divisional Bench of the Calcutta High Court referred to section 51 of the Bengal Municipal Act 1932 as enabling delegation but that section has no application in view of the provisions of section 542 of the Calcutta Municipal Act which repeals section 51 of the Bengal 97 762 Municipal Act in its application to the Howrah Municipality I have thus only section 12 of the Calcutta Municipal Act in its application to the Howrah Municipality to consider and as summarised above it permits delegation of powers from the Commissioner to the Chairman and from the Chairman to the ViceChairman or any other officer of the Municipality It was by virtue of this section that the Chairman was presumably delegated the powers of the Commissioners though no proof has been given in this case No point was made of the lack of this evidence and I need say nothing about it If it had been raised the prosecution would have led evidence if available But without this objection having been raised at an appropriate stage it is impossible to say now that it is well founded It is however in the re delegation of the powers from the Chairman to the other officers of the Municipality that the question whether such delegation was existing on the date on which the prosecution was initiated against the appellant has arisen A number of notifications must now be set out because it is contended that the later notifications rescind or modify those issued earlier Howrah Municipality order I hereby delegate to the Vice Chairman Dr Beni Chandra Dutta all my powers duties and functions as Chairman in respect of the following departments which are placed under his charge 2 Health Department The 6th February 1948 section K MukherjiChairman Howrah Municipality Order I hereby delegate my powers and functions to the Health Officer to order prosecution to sign prosecution sheets in respect of cases concerning the Health and Conservatory Departments 763 The 20th December 1949 section K Mukherjee Chairman III Howrah Municipality Order Till the election of Executives by the New Board I delegate all my powers and functions except those that are delegated to the Vice Chairman to respective officers of departments The 7th April 1951 section K Mukherji Chairman Howrah Municipality Order I hereby delegate to the Vice Chairman Sri Sankar Lal Mukherji all my powers duties and functions as Chairman in respect of the following departments which are placed under his charge 2 Health Department The 4th July 1951 K C Dutta Chairman It is admitted in this case that the election of the Executives by the New Board took place between April 7 1951 and July 4 1951 V Howrah Municipality Order I hereby revoke my order dated the 4th July 1951 so far as it relates to Health Department which shall henceforth be direct under my charge until further orders This will take effect from 15th December 1952 The 12th December 1952 Sd K C Dutta Chairman This was the position of the Orders on December 2 1953 the date of the offence and also on January 5 1954 when the complaint was filed Now the municipal corporation is a collection of persons and is invested with a legal personality by the statute under which it is created The statute 764 gives it perpetual succession and a power to act in many ways Among its multifarious functions is an inherent power to sue or be sued by its corporate name but the statutes creating such corporations aggregate provide expressly for such power In the absence of provision to the contrary the body corporate in such matters must act as a corporation The inconvenience of having the entire body to meet and decide upon every individual case is apparent and the law therefore provides for delegation of the functions of the body corporate to the Chairman Even there the burden on the Chairman s time would be enormous and thus the law enables him to re delegate in his turn his delegated powers to others Section 12 of the Calcutta Municipal Act enables the Chairman to delegate his powers duties or functions to the Vice Chairman or to any municipal officer Such officers are to be distinguished from mere servants who carry out orders but do not exercise definite Municipal do This distinction was made in Abbott s Corporations Vol 11 p 1456 etc and is to be found reflected also in the Act under consideration An officer of the municipality must himself perform his them to others unless expressly authorised in this behalf The Act does not so empower the officers to delegate their functions in their turn and thus an officer to whom the power is delegated by the Chairman must perform them himself A glance at the Act under consideration will show the numerous functions with which the Act invests the Chairman In addition the Chairman is invested with the functions delegated by the Commissioners In most municipalities if not all the Chairman maintains an order book in which he designates the officers to whom his functions are delegated In the present case there are extracts from the orders of the Chairman from May 9 1938 to April 22 1957 exhibit A These extracts show only the powers and functions delegated to the Engineer Water Works Overseers and they run the course of thirteen pages of small print in the Paper Book and involve one hundred 765 and thirty seven special delegations If the whole book were to be before us these special delegations will show an enormous number of specially delegate powers These functions cannot be performed by any but the officers concerned and are not taken away every time the Chairman passes an order investing by a general order his functions in the Vice Chairman or withdraws them from him Notification No 11 quoted above was a special delegation and would presumably figure in the order book as an item in the duties of the Health Officer specially delegated to him After this delegation it was the Health Officer and Health Officer alone who could exercise this power It is contended however that the Order of April 7 1951 No 111 led to the cancellation of the Order of December 20 1949 No 11 or at least imposed a time limit till the election of the new Board I am afraid this is not a correct interpretation of the No doubt the Chairman stated that he delegated all his powers and functions to the respective officers of the departments till the election of the new Board but the officers of the Department are invested with both administrative and special powers In my opinion a distinction must be made between delegation of a power to do special acts by a special order and delegation of a general character which can only be interpreted generally as applicable to administrative control Section 12 itself contemplates two kinds of orders and it cannot be gainsaid that the Order of December 20 1949 No 11 was a special Order while the Order of April 7 1951 was a general one The first Order No 1 dated February 6 1948 delegated all the powers of the Chairman in respect of the Health and other Departments to the Vice Chairman It did not mean that the order book exhibit A came to an end nor did it mean that from February 6 1948 it was the Vice Chairman who alone could do all that is mentioned in the thirteen pages printed in the Paper Book and what is presumably there regarding other departments Delegation of administrative powers is one thing and delegation of 766 power to do some specific act or acts is quite another The general order in favour of the Vice Chairman No 1 would not cut down the special orders of the Chairman The general order cannot be read as specialbecause generalia verba sunt generaliter intelligenda and generalities never derogate from specialities It only granted the residuary powers which were not covered by the special delegations from time to time No doubt the word used is all but the whole intent and purpose of the delegation must be borne in mind Qui haeret in litera haeret in cortice Broome s Legal Maxims 9th Edn p 443 The rules of interpretation of statutes only follow rules of interpretation of deeds and instruments and not vice versa To hold otherwise would mean that after the order of February 6 1948 No 1 all functions duties and powers including those specifically mentioned in the order book came to be centred in the Vice Chairman It was he alone who could inspect and examine house drains section 275 approve the site and position of the cesspools section 279 issue or serve notices section 503 inspect the service pipes R 5 3 examine the water pipes R 6so on and so forth And yet this would be the effect of the Order of February 6 1948 if the effect of the Order of April 7 195 1 on the Order of December 20 1949 is as is claimed It may be contented that if that is the effect of the Order we can declare it to be so but one reaches this result only if one disregards the distinction between special and general orders and there is no principle of interpretation on which it can be rested The special delegation order of December 20 1949 could only come to an end if it was withdrawn either expressly or by necessary implication No doubt it was a delegation by Mr section K Mukherjee and he ceased to hold office later but the delegation made by him would not fall by that reason alone The delegation was not personal to Mr Mukherjee but was made by virtue of office and it could only cease to be operative if cancelled in the same manner by the same officeholder or his successor It was however argued that it came to an end because of a time limit imposed by 767 the Chairman by his Order of April 7 1951 No 111 That Order stated that powers and functions except those delegated to the Vice Chairman were to be exercised till the election of the Executives by the new Board But the time limit was imposed on powers delegated by that Order This is clear from the language employed Till the election of Executives by the New Board I delegate all my powers and functions to respective officers of departments The contention is that this Order had the effect of imposing a time limit on all delegations made even before This general order did not have this effect on a special order for the reasons stated The delegation of the power to order prosecution and to sign prosecution sheets was specially conferred by the Order of December 20 1949 No 11 and was not revoked by the general order which could not be read specially nor was it intended that this power was to have a time limit By officers of the department was not meant the officers on whom special powers were conferred to do special acts The Order quoted above is in general terms and puts a timelimit on the delegation made by that order It says nothing about delegations of a special kind already in existence or that the general order was to be in supression of all special orders It does not in terms seek to affect them either expressly or even by implication In my opinion the special delegation made by the Order of December 20 1949 No 11 remained unaffected and thus enables the Health Officer to file the complaint In this view of the matter it is unnecessary to decide whether section 537 of the Calcutta Municipal Act is merely enabling or mandatory and whether in the absence of a proper delegation the Health Officer or other officers of the Municipality or any private person could have initiated the prosecution in such a case I would therefore hold that the appeal has no force and that it should be dismissed ORDER OF COURT In view of the judgment of the majority the appeal is allowed Appeal allowed

The draft standing orders submitted by the appellants to the certifying officer for certification under section 31 Of the were altered by the latter on the footing that the modifications were necessary so as to be in conformity with the model standing orders Section 4 Of the Act before it was amended in 1956 provided that it shall not be the function of the certifying officer or the appellate authority to adjudicate upon the fairness or reasonableness of the provisions of any standing order while under section 32 the draft shall be as far as is practicable in conformity with the model standing orders where they have been prescribed The question was whether the certifying officer had jurisdiction to make the modifications in the present case Held that there is a distinction between considerations of fairness or reasonableness and those of practicability and that though the certifying officer may not modify the draft on the ground that its provisions are unfair or unreasonable he can and must modify it in matters covered by the model standing 975 orders if he is satisfied that conformity with such model standing orders is practicable in the circumstances of the case Electric Workers Union vs The U P Electric Supply Co AIR 1949 All 504 disapproved Jiwan Mal Co vs Secretary Kanpur Loha Mills Karmachari Union Ors AIR 1955 All 581 and Mysore Kirloskar Employees Association vs Industrial Tribunal Bangalore and Anr approved

Civil Appeal No 347 of 1955 Appeal by special leave from the judgment and order dated April 20 1955 of the Railway Rates Tribunal Madras in Complaint No 2 of 1954 H N Sanyal Additional Solicitor General of India Niren De P C Chatterjee and P K Ghosh for the appellant N C Chatterjee J P Aggarwalla B K B Naidu and I N Shroff for respondent No 1 B K Khanna and R H Dhebar for respondent No 2 1960 February 9 Judgment of the Court was delivered by DAS GUPTA J When total charges payable in respect of goods traffic carried by a Railway are increased by the Railway Administration on the basis of terminals fixed by the Central Government in pursuance of section 32 of the Indian Railways Act has the Railway Rates Tribunal jurisdiction to investigate the reasonableness of the charge as thus increased That is the question raised in this appeal The first respondent the Upper Doab Sugar Mills Ltd manu factures sugar in its Mills situated at Shamli The sugarcane needed as its raw material has to be brought by the Company from different places in the neighbourhood It is in this connection that the appellant Railway Company s services are required The Railway Company carries the sugarcane in trucks from several stations on its line to Shamli As the Mills premises are situated a short distance away from the station platform the Mills had at the very time when it started functioning a siding agreement with the Roy Company so that the trucks carrying the 118 928 sugarcane are ultimately brought into the Mills siding from where the unloading takes place The nearest point of the Mills siding from the station platform at Shamli is about 100 to 150 ft away Tile Rly loco motives bring the sugarcane trucks to this point pt A in the Plan after which the Mills makes its own arrangement for taking them inside the sidings After several increases from time to time which it is not necessary to mention the charges payable in respect of sugarcane carried in the Railway Company s trucks and brought by the Railway Company s locomotives up to the point A stood on September 30 1953 at the following figures Rs Ans From Ailum 3 8 Kandhla 3 8 Khandraoli 3 8 Hind 3 8 Thanabhawan 3 8 Nanautta 4 4 Sona Arjunpur 4 4 In each case a surcharge of annas 2 per rupee was added Before this however on February 20 1950 the Central Govt had made an order under section 32 of the Indian Railways Act the relevant portion of which is in these words In pursuance of section 32 of the Indian Rlys Act 1890 IX of 1890 the Central Government is pleased to fix the following rates of terminals transshipment short distance percentage on value and percentage on excess value charges namely 1 TERMINAL CHARGES a Goods Traffic i General Merchandise Eight pies per mound at each end where the railway is required to do loading and unloading Six pies per maund at each end where the owners of the goods are required to do loading and unloading 929 In spite of this however the Railway Company did not levy any terminal charges in accordance with this rate up to September 1953 and continued to charge at the rate mentioned above On August 1 1953 the Railway Company issued a Local Rate Advice the relevant portion of which was in these terms With effect from I 10 53 the following station to station rates will be introduced and will remain in force till further advice Commodity From To Rate Sugarcane Ailum Shamli Rs 26 plus terminal Rs 96 Khandla do 26 do Khandraoli do 112 do Hind do 112 do Thanabhawan do 32 do Harar Siding do 32 do Nanautta do 35 do Sona Arjunpur do 411 do The consequence of this was that with effect from October 1953 the total charges payable by the Mills rose considerably From Rs 3 8 formerly payable in respect of sugarcane carried from Ailum Khandla Khandraoli Hind Thanabhawan the rate now payable became Rs 11 12 Rs 11 12 Rs 11 2 Rs 11 2 and Rs 12 8 respectively while for sugarcane carried from Nanautta and Sona Arjunpur the amount now payable was Rs 135 and Rs 141 in place of Rs 44 and Rs 44 payable prior to October 1 1953 It was for relief against this increase that the Mills made a complaint under section 411 i of the Indian Railways Act to the Railway Rates Tribunal Relief in respect of certain other matters like rates on molasses increase in siding charges rates on coal gunnies limestone firewood etc and rates on sugar was also asked for but later all these prayers having been withdrawn at the hearing before the Tribunal The Tribunal bad to deal only with the Mills complaint as regards this increase in charges in respect of sugarcane The main contention raised on behalf of the Railway Company was that as in increasing the charges the Administration had merely applied standardized terminal charges no complaint lay in respect of the 930 same under section 411i The Railway Company also further contended in this connection that considerable services apart from the carriage of the goods were rendered by the Company at each end and so in any case the terminal charges as standardized by notification by the Central Government were legally levied The Tribunal by a majority held that this was not a case of application of a standardized terminal charge and so it had jurisdiction to consider the question Shri LM Roy and Shri V Subrahmanyan who formed the majority were of opinion that services were rendered only at the loading station and not at Shamli so only Rs 411 annas out of the terminal charge of Rs 96 was reasonable and only this amount could be levied on sugarcane in addition to the conveyance charges from the forwarding station They ordered a reduction of terminal charge from Rs 96 to Rs 411 The President of the Tribunal Mr Lokur forming the minority was of opinion that the Tribunal had no jurisdiction to consider the question of reasonableness He was also of opinion that terminal services were rendered by the respondent Railways both at the loading station and also after the carriage was complete at Shamli In our opinion the Tribunal by which we mean the majority of the Tribunal was wrong in thinking that this was not a case of standardized terminal charges The first argument which seems to have found favour with the majority and which was repeated here on behalf of the respondent was that while the Government Notification fixed a terminal charge of 6 pies per maund at each end where loading and unloading is done by the owner as in the present case the Railway Company fixed Rs 96 per 4 wheeler as the terminal charge for the two ends together irrespective of the maundage carried It is obvious that the charge of Rs 96 is equivalent to charge of one anna the total of 6 pies at each end per maund on 150 mds It is urged that it may very well happen that some trucks will carry more than 150 mds and some less The fixation of such a lump sum of Rs 96 is it is contended not an application of the charges fixed by the Government but quite a distinct arrangement In 931 our opinion there is no substance in this contention It does not appear to be disputed that on an average 200 mds are carried in each 4 wheeler truck Exhibit A 6 shows a number of bills for charges for the period February 1953 to February 10 1953 for sugarcane carried from these stations to Shamli The number of trucks for each consignment is mentioned as also the weight carried In each case we find 200 mds mentioned as the weight It is obvious and indeed undisputed that this statement of 200 mds as the weight is not made on actual weighs but is mentioned on the weight carried on the basis of capacity As regards the rate for carriage it is common ground that charge is made per truck and not according to maundage It also appears to be common ground that this charge is actually calculated on the basis of 15O mds per truck We are unable to agree that when the Central Government fixed the charge at so much per mound it was intended that before any such charge could be levied the actual weight should be ascertained by actual weighment There is nothing to prevent the Railway Company and the consignor from entering into an agreement as to what should be accepted as weight without actual weighment Once such a fixation is agreed upon the amount calculated on that figure at the rate fixed by Government must be deemed to be the amount properly payable in accordance with the rate fixed by Government The fact that in some cases less than 150 mds may be carried in a truck and in other cases more than 150 mds may be carried does not affect the position that the party who is to pay and the party who is entitled to payment have accepted a particular figure as the weight carried without actual weighment When therefore Rs 96 is sought to be levied as the terminal charge being equivalent to 6 pice per maund on 150 mds at each end it is really an application of the charge fixed by the Central Government Nor are we impressed with the argument that the words used in the Local Rate Advice of August 1 1953 which has been set out above show that a standardized terminal charge was not being levied but some other rate is sought to be levied It is no 932 doubt true that this Advice quotes station to station rate the amount being then mentioned in two parts one obviously the rate for carriage and the second the terminal charge In fact the words plus terminal charge are actually mentioned The Railway Act has made a clear distinction between the rate and terminal charge The word rate is defined in section 313 as including any fare charge or other payment for the carriage of any passenger animals or goods the word terminals is defined in clause 14 of the same section as including charges in respect of stations sidings wharves depots warehouses cranes and other similar matters and of any services rendered thereat The word station to station rate is defined in section 46C g as meaning a special reduced rate applied ale to a specific commodity booked between two specified stations The same section also defines class rate and schedule rate The first being defined as rate fixed according to the class given to a commodity in the classification of goods and the second as the rate lower than the maximum or class rate applied on a commodity basis We can see no reason for not interpreting the word rate used in this section 46C as being any fare charges or other payment for the carriage of any passenger animals or goods as defined in section 313 Thus interpreted station to station rate in respect of goods will mean only a charge payable for carriage of goods as may be made specially applicable to a specific commodity booked between two specified stations for the carriage of the same This would not include any charge made in addition to the charge for carriage It must therefore be held that the words of the Local Advice Order stating the new station to station rate as so much plus so much for terminal charge are not strictly accurate The proper way of giving information to parties concerned would be to state the station to station rate as consisting of the amount mentioned in the first party only the charge for carriage and to make a separate announcement as regards terminal charge This inaccuracy in expression cannot however affect the substance of the matter The fact that the terminal charge was mentioned as a part of the station 933 to station rate is no reason to think that standardized terminal charges were not being applied More important is the argument that the Central Government Notification fixing 6 pies per maund as the terminal charge at each end where loading and Upper unloading is done by the owner should be interpreted as permitting the levy of such charges only if some service in addition to the carriage is being performed This argument is based on a view of the definition of the word terminals in section 314 that terminals means charges for certain services rendered Acceptance of that view will undoubtedly justify a conclusion that in fixing terminals the Central Government only authorized the charges to be levied on certain services in addition to carriage having been rendered If thereafter it is found that no such services were rendered the conclusion that will follow is that levy ing of a charge at the end where no such services were rendered was not levying of a standardized terminal charge Assuming for the present that on a proper interpretation of the definition of the word terminals no terminal charge can be made unless some service in addition to the carriage of the goods is rendered it is necessary to see whether the conclusion of two members of the Tribunal who formed the majority was correct in so far as they held that no such service was performed at the Shamli end It is important to bear in mind that in so far as such a conclusion is a pure finding of fact this Court will not ordinarily interfere therewith If however the conclusion is apparently vitiated by an error of law it becomes proper and desirable for this Court to consider what the correct finding would be on a correct appreciation of law Both Shri LM Roy and Shri Subrahmanian proceeded on the basis that the loaded cane specials are taken to point A in the map and then pushed inside leaving them at the assisted siding It is here that the conveyance ends and the terminal begins Whatever services are rendered thereafter would be as carriers and are subject to separate charges in the form of terminals The distinction between conveyance and duty as a carrier was made in many of the 934 English Railway Acts so that in many cases before the courts in England the judges had to consider Where the conveyance ends and the carrier s duty begins These decisions are necessarily coloured by the historical considerations in England where at first railway companies supplied only railway lines where private carriers could take their locomotives on payment of a charge for the line and at a later stage the Railway Company supplied locomotives and power and the railway line but the private carrier remained there undertaking carriage till ultimately the third stage was reached when the railway company func tioned also as carriers on the line While some assistance can no doubt be derived from the learned discussions by English judges as to where conveyance ends and the carrier s duty begins it would be more helpful to concentrate at first on the scheme of our own legislation Turning to the Indian Railways Act it is clear that carriage on the Railway line is primarily a function of the Railway Company and for such carriage charges are made The Act further contemplates that in addition to some charge having been made for carriage certain other charges can be made under the head terminals In such a scheme the proper approach to a decision of the question where carriage ends is to find out what carriage has been charged for If what is charged is the charge for carriage up to the station platform of the destination station anything done to assist the party after carriage is complete is a service in addition to carriage that is a terminal service If the point A in the map is the distance up to which carriage is charged the view of the majority of the Tribunal that no additional service is being rendered by the Railway Company in bringing the trucks from the station platform up to point A is correct If on the other hand the carriage which is charged for is carriage up to the station platform of Shamli only bringing the trucks from the station platform to point A where the sidings begin is clearly a terminal service The majority of the Tribunal failed to appreciate this distinction and erred in law in assuming that because the siding commenced at A shunting of trucks from 935 the station platform to A could not be a terminal service The important question therefore is as regards the point up to which the carriage was being charged for It is necessary to consider in this connection cls 13 15 of the siding agreement They are in these words Clause 13 Freight for all clauses of goods will be charged up to and from Shamli station Railway receipts and invoices shall be issued to and from the station only and in accordance with the rates from time to time published in Goods Traffic Books of the Railway Administration In addition to such freight the Railway Administration will make the following charges in such directions for every wagon loaded or empty placed in or removed from the lines A and B mentioned in clause 15 below 1 per 4 wheeler wagon 0 3 4 2 per 8 wheeler wagon 0 6 8 In addition when use of an engine is made to place or remove wagon from the siding a charge of Rs 5 for each transaction shall be levied by Administration Clause 5 a Wagons will be made over to the Firm and returned by the Firm in the form of certificate shown in Annexure A b Wagons will be handled by the Railway to and from the lines marked A and B in Plan No 12 A hereinbefore referred to or such other point or length as may hereafter be fixed upon by mutual consent of the Firm and the Railway Administration in writing c As soon as wagons are placed at the line A referred to the Station Master will fill in columns 1 2 and 3 of both foils of Annexure A and obtain the Firm s signature in column 4 of the inner foil and make over the outer foil to the firm When this has been done the wagons will be considered as made over to the Firm and the free time permissible under the rules will then commence Similarly wagons will be considered as returned to the Railway by the Firm as soon as they are placed at the line B referred to and the Station Master has been advised by the Firm 119 936 This will de done by presentation of the outer foil with column filled in The Station Master will then initial in column 5 of the outer foil and fill in columns 5 6 7 and 8 of the inner foil and columns 6 7 and 8 of the outer foil and recover the demurrage due Note 1 The free time referred to above will be calculated in accordance with the rules in force from time to time as published in the Goods Traffic Books of the Railway Administration and wagons detained by the Firm over and above such free time shall be subject to payment of the demurrage charges laid down in such tariffs Note 2 The Firm will arrange to band shunt wagons to and from the said length A with their own labour and the Railway Administration will not be responsible for any delay loss or damage caused in consequence of the failure of the Firm to arrange for such band shunting It is important to notice that cl 13 mentions in definite and categorical Ianguage that freight is charged up to and from Shamli station It is reasonable to read the station here as the station platform When in clause 15 it is agreed that the wagons will be hauled by the Railway to and from the lines marked A and B nothing is said about any charge being made therefor It is impossible to read into the words used in el 15b an implication that carriage up to point A was being charged for On a proper reading of these clauses we think it reasonable to hold that carriage up to the station platform only was being charged for The haulage of the trucks from the station platform to point A was thus necessarily a service rendered by the Railway Company in addition to the carriage and so was a terminal service It is clear therefore that even on the assumption made that on the definition of the terminals in section 314 no charges are payable unless certain services in addition to carriage are performed by the Railway Company terminals were leviable in the present case at the Shamli end also and so the foundation for the argument that Rs 411 being charged at the Shamli 937 end was not really a terminal charge but some other charge in the garb of terminal disappears It is interesting in this connection to turn to som of the English decisions which seem to have impresses the members of the Tribunal In Foster v G E Railway Co 1 the Court had to consider certain sections of the Great Eastern Railway Company Rates and Charges Order Confirmation Act 1891 Section 2 thereof provided that the maximum rate for conveyance is the maximum rate which the company may charge for the conveyance of merchandise by merchandise train and subject to the exceptions and provisions specified in the schedule includes the provisions of locomotive power and trucks by the company and every other expense incidental to such conveyance not hereinafter provided for Section 3 provides that the maximum station terminal is the maximum charge which the company may make to a trader for the use of the accommodation exclusive of coal provided and for the duties undertaken by the company for which no other provision is made in the schedule at the terminal station for or in dealing with merchandise as carriers thereof before or after conveyance Section 5 provides that the company may charge for the services for the following or any of them when rendered to a trader at his request or for his convenience a reasonable sum by way of addition to the tonnage rate and services rendered by the Company at or in connection with sidings not belonging to the Company It was in connection with this scheme of the law that the Court had to consider where conveyance should be held to end It was held that conveyance for the purpose of rates might or might not coincide with the contractual conveyance but that it could not be said as matter of law that it did The point at which it ended would prima facie be the point at which the goods train detached and deposited the Trucks but if they were so detached and deposited for the convenience of the railway company at a point short of that to which as conveyers they would be bound to take them for the purposes of delivery to a 1 938 distributing carrier in times when such carriers existed a charge could not be made for haulage between these points As has already been noticed our legislature has thought fit to avoid the use of the word conveyance and has provided for maximum and minimum being prescribed for rates as defined in section 313 viz as charges for carriage It is obvious that carriage which is charged for under the rates may include something in addition to the actual conveyance viz collection of goods just before haulage starts and delivery of goods just after haulage ends It is helpful to see that even in the English courts were the distinction between conveyance and carriage ran through the whole scheme of legislation in view of the historical growth of the Railways and the extension of their functions services rendered after the point where the goods train detaches and deposits the trucks would prima facie be considered a terminal service while if the train which detaches and deposits at a point short of where they would have been bound to take for the purposes of delivery to a distributing carrier in olden days tile haulage between the two points cannot be charged for in addition to the conveyance charge Applying the reasoning underlying this decision to lndian conditions we think it proper to hold that haulage beyond a point where the trucks would be taken for persons other than the owners of a siding would be a terminal service except where this additional haulage is for the convenience of the Railway itself or where the rate charged for carriage covers the entire route up to the last point of haulage Even if therefore a correct interpretation of the definition of terminals did not permit charges to be levied where no services were rendered in addition to the carriage charged for the levying of Rs 96 as terminal charges in the present case is clearly the application of standardized terminal charges As section 41 in terms excludes standardized terminal charges from the scope of any complaint thereunder the Railway Tribunal would have no jurisdiction to investigate the reasonableness or otherwise of these charges and 939 the majority decision of the Tribunal must be set aside We do not propose however to rest our decision on this narrow question of haulage from the station platform to point A as in our view the assumption made above as regards the definition of terminals in section 314 is not justified The definition as has already been stated is in these words Terminals includes charges in respect of stations sidings wharves depots warehouses cranes and other similar matters and of any service rendered thereat Thus two classes of charges are included in the definition The first is charges in respect of stations sidings wharves depots warehouses cranes and other similar matters The second is charges in respect of any services rendered thereat Whether or not therefore any services have been rendered thereat that is at the stations sidings wharves depots warehouses cranes and other similar matters the other class of terminals in respect of these stations sidings wharves depots warehouses cranes and similar other matters remain A further question thus arises as regards the interpretation of the phrase in respect of Does it mean charges for the mere provision and maintenance of stations sidings depots wharves warehouses cranes and other similar matters are the terminals or does it contemplate charges only for use of sidings stations wharves depots warehouses cranes and other similar matters The words in respect of are wide enough to permit charges being made as terminals so long as any of these things viz stations sidings wharves depots warehouses cranes and other similar matters have been provided and are being maintained The question is whether the import of this generality of language should be cut down for any reason It is well settled that a limited interpretation has to be made on words used by the legislature in spite of the generality of the language used where the literal interpretation in the general sense would be so unreasonable or absurd that the legislature should be presumed not to have intended the same Is there any such reason for cutting downthe result of the 940 generality of the language used present here The answer in our opinion must be in the negative It is true that in many cases stations sidings wharves depots warehouses cranes and other similar things will be used and it is arguable that in using the words in respect of the legislature had such user in mind It is well to notice however that the legislature must have been equally aware that whereas in some cases accommodation provided by stations will be used in some cases sidings will be used in others wharves in other warehouses and in other cases cranes and in certain cases several of these may be used in most cases there will be no use of all of these From the practical point of view it is impossible to regulate terminal charges separately in respect of user of each of these several things mentioned When therefore the legislature authorised the Central Govt to fix terminals as defined in section 314 the intention must have been that the terminals leviable would not depend on how many of these things would be used It is also worth noticing that the user of a depot warehouse and cranes would necessarily mean some service rendered thereat If terminals did not include charges in respect of the provisions of depots warehouses and cranes unless these were used there would be no need of including these in the first portion as they would be covered by the second part of the definition viz of any services rendered thereat Far from being there any reason to cut down the consequence of the generality of language used viz in respect of there is thus good ground for thinking that the legislature used this language deliberately to cut across the difficulty of distinguishing in a particular case as to which of these things had been used or whether any of them had been used at all innumerable people carry goods over the Railways and many of them for the purpose of the carriage make use of the stations sidings wharves depots warehouses cranes and other similar matters while many do not Though at first sight it might seem unreasonable that those who had not used would have to pay the same charge as those who had made use of these it is obvious that the 941 interminable disputes that would arise between the Railway Administration and the Railway users if the fact of user of stations sidings and other things mentioned had to determine the amount payable would be unhelpful not only to the Railway Administration but also to the using public The sensible way was therefore to make a charge leviable for the mere provision of these things irrespective of whether any use was made thereof That was the reason why such wide words in respect of was used We are therefore of opinion that the words in respect of used in section 314 means for the provision of and not for the user of It is worth considering in this connection that the definition of terminal charges in the Indian Act is a verbatim reproduction of the definition appearing in the English Railway and Canals Traffic Act 1888 and that only three years before the English Parliament passed that Act an English Court had held in Hall Co vs London Brighton and South Coast Rly Co 2 that for the purposes of interpretation of section 51 of the London Brighton and South Coast Rly Act 1863 which did not include such a definition of terminal charges the words any service incidental to the duty or business of a carrier does comprise providing such station accommodation and such sidings and such weighing checking and labelling as is incidental to the duty which they undertake of collecting and dealing with the goods as carriers It is reasonable to think that the English Parliament in defining terminal charges in the Railway and Canals Act 1889 intended to give effect to this view that provision of station accommodation and sidings entitled the Railway Administration to levy terminal charges When the Indian Legislature adopted the same definition in its own Act it is proper to think that it also was aware of the view taken in Hall s Case 2 This consideration fortifies the conclusion which we have already reached on an examination of the scheme of our own Act apart from authorities that the words in respect of used in section 314 in the definition of 2 942 terminal charges means for the provision of and not for the user of The necessary conclusion that follows is that irrespective of the fact of the actual user by any particular consignor of the stations sidings and other things mentioned in section 314 terminal charges are leviable by reason of the mere fact that these things have been provided by the Railway Administration The conclusion that necessarily follows therefrom is that the charges of Rs 4 11 at either end sought to be levied by the Railway Administration in addition to the charges for carriage was terminal charges within the meaning of the Railways Act and the proposed levy being in accordance with Government Notification under section 32 of the Act was nothing more than the application of standardized terminal charges The Tribunal had therefore no jurisdiction to investigate the reasonableness or otherwise of the same and had no jurisdiction to reduce the same The order made by the majority of the Tribunal cannot therefore be allowed to stand The order made by the Tribunal is therefore set aside The application made under section 41 in respect of this levy of Rs 96 per 4 wheeler truck in addition to the carriage is rejected The appeal is allowed with costs Appeal allowed

In a trial by jury the judge should in his charge to the jury be careful to lead them to a correct appreciation of the evidence so that the essential issues in the case may be correctly determined by them after understanding the true import of the evidence on the rival sides Since a verdict of the jury depends upon the charge if it fails to perform this basic purpose it cannot be regarded as a proper charge and if it contains also misdirections as to law the verdict cannot be upheld but if upon the general view taken the case has been fairly left within the jury s province the verdict cannot be set aside unless something gross amounting to a complete misdescription of the whole bearing of the evidence has occurred Mushtak Hussein vs The State of Bombay Ramkrishan Mithanlal Sharma vs The State of Bombay and Arnold vs King Emperor 1914 LR 41 IA 149 relied on Per section K Das and Sarkar jj Though the charge to the jury in the present case was lengthy the length was due in part to a protracted narrative of facts and the many disputed questions of fact to which the attention of the jury had to be drawn and as the judge did state the several disputed points arising therefrom and their bearing on the main qestions at issue the jury were not misled Held that there was no misdirection and that the verdict of the jury could not be interfered with Per Hidayatullah J In his charge to the jury in the present case 1 the judge took each witness turn by turn paraphrased his evidence sentence by sentence and read out those portions which he did not paraphrase without trying to draw the attention of the jury to the relevancy or materiality of the various 2 parts and did not make any difference between the testimony of the eye witnesses and of the formal witnesses in the matter of treatment 2 while telling the jury that they could give the benefit of the doubt on proof of any individual fact if they felt any doubt about the proof the judge did not at the same time caution them that the totality of facts must be viewed in relation to the offence charged and that the benefit resulting in acquittal could be given only if they felt that when all was seen and considered there was doubt as to whether the accused had committed the crime or not 3 the judge while explaining the ingredients of the offence of grievous hurt under section 325 of the Indian Penal Code failed to tell the jury that grievous hurt was only an aggravated form of hurt and that even if they held that the accused did not cause a grievous injury it would be open to them to hold that he caused a simple injury which would bring the matter within section 323 Of the Code and 4 omissions were treated as contradictions and placed before the jury in complete disregard of section 162 of the Code of Criminal Procedure Held that these defects amounted to misdirections and that the verdict could not be accepted

Civil Appeals Nos 14558 and 32357 Appeals by special leave from the judgment and order dated September 14 1955 of the Bombay High Court in IT References Nos 8 and 21 of 1955 respectively R Ganapathi Iyer and D Gupta for the appellant in CA No 145 of 1958 and respondent in C A No 323 of 1957 N A Palkhivala section N Andley J B Dadachanji and Rameshwar Nath for the respondent in C A No 145 of 1958 and appellant in C A No 323 of 1957 1960 February 19 The Judgment of the Court was delivered by KAPUR J This judgment will dispose of two appeals C A No 14558 and C A 32357 They arise out of the same transaction ie Managing Agency Agreement and the result of C A No 32357 is dependent upon the judgment in C A 145158 and we propose to deal with the latter appeal which was argued before us and the former for reasons to be stated later was not pressed The appellant in C A 14558 is the Commissioner of Income tax Bombay and the respondent is the assessee a registered firm which on March 8 1941 was appointed the Managing Agents of Shri Ambica Mills Limited hereinafter termed the Managed Company the appellant in C A 32357 The duration of the Managing Agency period was 20 years By clause 2 of the Managing Agency Agreement it was provided 2a The Company shall pay each year to the said Firm either the commission of 5 five per centon the total sale proceeds of yarn and of all cloth manufactured from cotton silk jute wool waste and other fibres and sold by the company or a commission of three pies per pound avoirdupois on the sale whichever the said Firm choose to take and also a commission of 10 ten per cent on the proceeds of sale of all other materials sold by the Company and 10 ten per cent on the bills of any ginning and pressing factories and on any other work done by the Company 53 bIf in any year the net profits of the Company shall not be sufficient to enable the Directors if they think fit to recommend a dividend of eight per cent per annum on the capital paid up on the ordinary shares for the time being the same Firm shall be bound to give up from the total amount of commission payable under clause 2a hereof such portion thereof as may be necessary to make up the deficit PROVIDED THAT in no event the amount so given up by the said Firm shall exceed one third of such total amount of commission And by Clause 5 it was provided 5 The remuneration payable to the said Firm Under Clause 2a shall be paid to the said Firm forthwith after the 31st day of December or such other date as the Directors may fix for the closing of the accounts of the Company in each year and after such accounts are passed by the Company in General Meeting On December 9 1950 the Board of Directors of the Managed Company passed a resolution to the effect that the Directors had for some time past been discussing with the Managing Agents the advisability of modifying the terms of the Managing Agency Agreement as to the commission payable under it and that the Managing Agents had agreed to charge 3 per cent on sales instead of 5 per cent for the year ending December 31 1950 A resolution was passed at the Annual General Meeting of the Managed Company on April 221951 which was to the same effect The resolution of the Board of Directors was ratified at an Extraordinary General Meeting of the shareholders of the Managed Company on October 7 1951 and the same day a formal agreement embodying the terms of the resolution was executed between the Managing Agents and the Managed Company For the accounting years 1950 and 1951 ie assessment years 1951 52 and 1952 53 the Managing Agents were taxed by the Income tax Authorities on the basis that in those two years they had voluntarily relinquished a sum of Rs 169981 and Rs 210 53O for the respective assessment years These sums were added to the income of the Managing Agents for the purpose of income tax 54 An appeal was then taken to the Income tax Appellate Tribunal and it was held by the Tribunal that the agreement between the Managing Agents and the Managed Company to receive remuneration at 3 on the total sales was a valid one and took effect as from January 1 1950 The second question whether the commission accrued on the proceeds of every single sale or it accrued only when the assessee firm exercised its option to charge its commission on the total sale proceeds or on the weight of the yarn sold and whether the Managing Agents were to get the amount of commission after the whole profit was determined at the end of the year was decided in favour of the Managing Agents A Reference was made to the High Court at the instance of the Commissioner of Income tax and the questions above mentioned were answered in favour of the Managing Agents This appeal by the appellant has been brought against the judgment of the High Court by special leave In the connected appeal ie C A 32357 by the Managed Company the facts are the same except that the Appellate Tribunal allowed the Managed Company the sum on which the Managing Agents wereto be taxed as allowable deduction When the Commissioner got the case stated to the High Court the Managing Company also had a case stated But as the High Court upheld the contention of the Managing Agents the Managed Company did not press its application which was therefore dismissed The appeal of the Managed Company is brought against that order In the appeal by the Commissioner of Income tax ie C A 14558 it was argued that according to the terms of the Agency Agreement the Managing Agents were to get the commission on the sales and as the accounts were kept on a mercantile basis the amount of commission accrued as and when the sales took place and paragraph 5 of agreement was only a machinery for quantifying the amount It was also argued that the Managing Agents by entering into an agreement with the Mills had voluntarily relinquished a portion of the amount of commission which had accrued to them and therefore the whole of the income from commission which had already accrued was liable to 55 income tax and reference was made to the cases reported as Commissioner of lncome tax Madras vs K R M T T Thiagaraja Chetty and Co 1 E D Sassoon Company Ltd vs The Commissioner of Income tax Bombay City 2 and to an English case Commissioners of Inland Revenue vs Gardner Mountain D Ambrumnil Ltd 3 But these cases have no application to the facts of the present case In the Commissioner of Income tax Madras vs K R M T T Thiagaraja Chetty Co 1 the assesses firm was under the terms of the Managing Agency Agreement entitled to a certain percentage of profits and in the books of the Company a certain sum was shown as commission due to the assessee firm and that sum was also adopted as an item of business expenditure and credited to the Managing Agents commission account but subsequently it was carried to suspense account by a resolution of the Company passed at the request of the assessee firm in order that the debt due by the Firm might be written off The accounts were kept on mercantile basis and it was held that on that basis the commission accrued to the assessee when the commission was credited to the assessee s account and subsequent dealing with it would not affect the liability of the assessee to income tax It was also held that the quantification of the commission could not affect the question as it was not a condition precedent to the accrual of the commission At page 267 Ghulam Hassan J observed Lastly it was urged that the commission could not be said to have accrued as the profit of the business could be computed only after the 31st March and therefore the commission could not be subject to tax when it is no more than a mere right to receive This argument involves the fallacy that profits do not accrue unless and until they are actually computed The computation of the profits whenever it may take place cannot possibly be allowed to suspend their accrual In the case of income where there is a condition that the commission will not be payable until the expiry of a definite period or the making up of the account it might be 1 at 267 2 344 3 96 56 said with some justification though we do not decide it that the income has not accrued but there is no such condition in the present case This passage does not help the appellant s case The question there decided was that the accrual of the commission was not dependent upon the computation of the profits although the question whether it would make any difference where the commission was so payable or was payable after the expiry of a definite period for the making of the account was left undecided In the case before us the agreement is of a different nature and the above observations are not applicable to the facts of the present case The next case is E D Sasoon Co Ltd vs The Commissioner of Income tax Bombay City 1 But it is difficult to see how it helps the case of the appellant If anything it goes against his contention In that case the assessee Company was the Managing Agent of several Companies and was entitled to receive remuneration calculated on each year s profits Before the end of the year it assigned its rights to another person and received from him a proportionate share of the commission for the portion of the year during which it worked as Managing Agent On the construction of the Managing Agency Contract it was held that unless and until the Managing Agent had carried out one year s completed service which was a condition precedent to its being entitled to receive any remuneration or commission it was not entitled to receive any commission The facts in that case were different and the question for decision was whether the contract of service was such that the commission was only payable if the service was for a completed year or the assessee Company was entitled to receive even for a portion of the year for which it had acted as a Managing Agent It was held that it was the former As was observed by Lord Wright in Commissioners of Inland Revenue V Gardner Mountain D Ambrumenil Ltd 2 It is on the provisions of the contract that it must be decided as a question of construction and therefore of law when the commission was earned The contract in the present case in para 1 344 2 96 57 graph 2 shows that 1 the company was to pay each year 2 that the Managing Agents were to be paid 5 per cent commission on the proceeds of the total sales of yarn and of all cloth sold by the Company or three pies per pound avoirdupois on the sale whichever the Managing Agents chose thus there was an option to be exercised at the end of the year 3 they were also to be paid at 10 per cent on the proceeds of sales of all other materials and 4 the Mills were to pay to the Managing Agents each year after December 31 or such other dale which the Directors of the Company may choose for the closing of the accounts There was a further clause that if the net profits of the Managed Company that is the Mills were not sufficient to enable the Directors to recommend a dividend of 8 per cent per annum on the paid up capital then the Managing Agents were bound to forego a portion of their commission upto one third All these provisions as to payment have to be read together as an indivisible and an integral whole On a proper construction of this contract therefore it is obvious that the Managing Agents were to be paid at the end of the year They had the option of receiving a percentage on total sales or three pies per pound and this was exercisable at the end of the year There was also a liability to pay back a portion of the commission in certain contingencies which also could be determined only when the accounts were made up for the year It is thus clear that there was no accrual of any commission till the end of the year On this construction of the contract it cannot be held that the commission had accrued as and when the sales took place and that as a result of their agreeing to the modification of the agreement the Managing Agents had voluntarily relinquished a portion of their commission On the other hand under the original agreement the Managing Agents were entitled to receive commission only at the end of the year and before then the agreement was varied modifying its terms as from the beginning of the accounting year We are of the opinion therefore that the High Court correctly found against the appellant and we therefore dismiss C A No 145 of 1958 with costs In 8 58 view of this Mr Palkiwala for the Managed Company did not press C A No 323 of 1957 which is therefore dismissed but the parties will bear their own costs in that case because the result of that appeal is really dependent upon the result in C A No 145 of 1958

The appellant was convicted of selling adulterated butter under sections 406 and 407 read with section 488 of the Calcutta Municipal Act as extended to the Municipality of Howrah on a complaint filed by the Sanitary Inspector on January 2 954 which was signed in token of sanction by the Health Officer of the said municipality The appellant contended that the trial was vitiated for want of a valid sanction because at the relevant time the Health Officer of the municipality did not have any power to sanction the prosecution Under the Act the power to institute 740 a complaint vested in the Commissioners but they could delegate the power to the Chairman and the Chairman could also by a general or special order in writing re delegate the power to the Vice Chairman or to any municipal officer The question of the delegation of their power by the Commissioners was not specifically raised but it was urged that the Chairman had by certain subsequent orders revoked the delegation in favour of the Health Officer The first order passed by the Chairman on February 6 1948 delegated to the Vice Chairman all his powers duties and functions in respect of seven departments including the Health Department The second order was passed on December 201949 by which the Chairman delegated his powers and functions to the Health Officer to order prosecution and to sign prosecution sheets in respect of cases concerning the Health and Conservancy Departments The third order was made on April 7 1951 on the eve of the new election and stated Till the election of Executives by the New Board I delegate all my powers and functions except those that are delegated to the Vice Chairman to the respective officers of departments After the election the new Chairman passed an order on July 4 1951 delegating all his powers duties and functions in respect of six departments including the Health Department to the Vice Chairman The last order was passed on December 12 1952 which said I hereby revoke my order dated the 4th July 1951 so far as it relates to the Health Department which shall henceforth be direct under my charge until further orders This will take effect from 15th December 1952 The appellant urged that the third order modified the second and placed a time limit on it and that the delegation lapsed on the expiry of the time The respondent contended that the third order did not affect the second and that in any case the Health Officer could file the complaint as a private citizen Held per section K Das and A K Sarkar jj that the Health Officer was not empowered as the duly delegated authority to institute criminal proceedings against the appellant on the date on which he made the complaint The third order made by the Chairman on April 7 1951 modified the second order by making the delegation thereunder in favour of the Health Officer effective only till the election of the new Executive The object of the third order was to leave the new Chairman free to pass his own orders of delegation and not to fetter his discretion in any way The orders passed by the new Chairman did not delegate the power to the Health Officer Held further that a complaint under the Calcutta Municipal Act 1923 as applied to Municipality of Howrah can only be filed by the authorities mentioned therein and not by an ordinary citizen Section 537 of the Act provides that the Commissioners may institute defend or withdraw from legal proceedings under the Act under section 12 the Commissioners can delegate their functions to the Chairman and the Chairman can in his turn delegate the same to the Vice Chairman or to any municipal 741 officer The machinery provided in the Act must be followed in enforcing its provisions and it is against the tenor and scheme of the Act to hold that section 537 is merely enabling in nature Nazir Ahmed vs King Emperor 1936 LR 63 IA 372 referred to Sisir Kumar Mitter vs Corporation of Calcutta 631 explained Keshabdeo Kedia vs P Banerjee Sanitary Inspector Howrah Municipality and State vs Manilal Jethalal AIR referred to Cole vs Coulten2 Ellis Ellis 695 Buckler vs Wilson The Queen vs Stewart 1896 1 QBD 300 and Giebler vs Manning held inapplicable The Queen vs Cubitt relied on Per Hidayatullah 1 The sanction given by the Health Officer was valid as the delegation of authority to him by the order of December 20 1949 was not taken away by subsequent orders The order of December 20 1949 which specially conferred the power to order prosecution to sign prosecution sheets was a special order and was unaffected by the general order of April 7 1951 The later order put a time limit only on delegations made under that order and not on orders made before

Civil Appeal No 513 of 1958 Appeal by special leave from the judgment and order dated November 20 1957 of the Bombay High Court in First Appeal No 600 of 1956 arising out of the judgment and order dated October 17 1956 of the District Judge Poona in Misc Petition No 2 of 1956 H D Banaji section N Andley J B Dadachanji Rameshwar Nath and P L Vohra for the appellant A V Viswanatha Sastri Sorab N Vakil B K B Naidu and I N Shroff for respondents Nos 1 and 2 1960 February 22 The Judgment of the Court was delivered by SARKAR J Respondents Nos I to 4 are shareholders in the company which is the appellant in this case They made an application against the appellant and its directors under section 153 C of the Companies Act 1913 before that Act was repealed on April 1 1956 as hereinafter mentioned for certain reliefs which it is not necessary to state This Act will be referred to as the Act of 1913 This application had been made to the Court of the District Judge of Poona which Court had been empowered to exercise jurisdiction under the Act of 1913 by a notification issued by the Government of Bombay under section 31 of that Act Before the application could be disposed of by the District Judge Poona the Act of 1913 was repealed and re enacted on April 1 1956 by the Companies Act of 1956 which will be referred to as the Act of 1956 On or about June 28 1956 the appellant made an application to the District Judge of Poona for an order dismissing the application under section 153 C of the 87 Act of 1913 on the ground that on the repeal of that Act the Court had ceased to have jurisdiction to deal with it The District Judge of Poona dismissed this application The appellants appeal to the High Court of Bombay against this dismissal also failed Hence the present appeal Section 644 of the Act of 1956 repeals the Act of 1913 and certain other legislation relating to companies Sections 645 to 657 of the Act of 1956 contain various saving provisions Mr Banaji appearing for the appellant contended that the proceeding before the District Judge of Poona under section 153 C of the Act of 1913 had not been saved by any of these provisions We do not consider it necessary to pronounce on this question for it seems to us clear that that proceeding can be continued in spite of the repeal of the Act of 1913 in view of section 6 of the General Clauses Act Section 658 of the Act of 1956 expressly provides that The mention of particular matters in sections 645 to 657 or in any other provision of this Act shall not prejudice the general application of s6 of the X of 1897 with respect to the effect of repeals Mr Banaji said that section 658 had been enacted ex abundante cautela Be it so Section 6 of the none the less remains applicable with respect to the effect of the repeal of the Act of 1913 Section 6 of the provides that where an Act is repealed then unless a different intention appears the repeal shall not affect any right or liability acquired or incurred under the repealed enactment or any legal proceeding in respect of such right or liability and the legal proceeding may be continued as if the repealing Act had not been passed There is no dispute that section 153 C of the Act of 1913 gave certain rights to the shareholders of a company and put the company as also its directors and manag ing agents under certain liabilities The application under that section was for enforcement of these rights and liabilities Section 6 of the would therefore preserve the rights and liabilities created by section 153 C of the Act of 1913 and a continuance of the proceeding in respect thereof would be 88 competent in spite of the repeal of the Act of 1913 unless of course a different intention would be gathered Now it has been held by this Court in State of Punjab vs Mohar Singh 1 that section 6 applies even where the repealing Act contains fresh legislation on the same subject but in such a case one would have to look to the provisions of the new Act for the purposes of determining whether they indicate a different intention The Act of 1956 not only repeals the Act of 1913 but contains other fresh legislation on the matters enacted by the Act of 1913 It was further observed in State of Punjab vs Mohar Singh 1 that in trying to ascertain whether there is a contrary intention in the new legislation the line of enquiry would be not whether the new Act expressly keeps live old rights and liabilities but whether it manifests an intention to destroy them The question then is whether the Act of 1956 indicates that it was intended thereby to destroy the rights created by section 153 C of the Act of 1913 Mr Banaji said that section 647 of the Act of 1956 indicates an intention to destroy the rights created by section 153 C of the Act of 1913 We find nothing there to support this view That section only says that where the winding up of a company commences before the commencement of the Act of 1956 the company shall be wound up as if that Act had not been passed but section 5557 of the Act of 1956 will apply in respect of moneys paid into the Companies Liquidation Account All that this section does is to make the provisions of the repealed Act applicable to the winding up notwithstanding the repeal The provisions of section 5557 need not be referred to as they do not affect the question Section 647 of the Act of 1956 therefore indicates no intention that the rights created by section 153 C of the Act of 1913 shall be destroyed Nor is an argument tenable that since by section 647 the Act of 1956 expressly makes the repealed Act applicable to a winding up commenced under it it impliedly indicates that in other matters the repealed Act cannot be resorted to for in view of section 658 of the Act of 1956 1 89 the mention of a particular matter in section 647 would not prejudice the application of section 6 of the in other words nothing in section 647 is to be understood as indicating an intention that section 6 of the is not to apply On the other hand the parties are agreed that the provisions of section 153 C of the Act of 1913 have been substantially re enacted by the Act of 1956 and this would indicate an intention not to destroy the rights created by section 153 C Mr Banaji then drew our attention to section 10 of the Act of 1956 and section 24 of the Section 10 of the Act of 1956 corresponds to section 3 of the Act of 1913 and deals with the jurisdiction of Courts Under section 10 the Central Government may empower a District Court to exercise jurisdiction under the Act not being the jurisdiction conferred among others by sections 397 to 407 nor in respect of the winding up of companies with a paid up share capital of not less than Rs 100000 Sections 397 to 407 of the Act of 1956 it is agreed contain substantially the provis sions of section 153 C of the Act of 1913 It has also to be stated that the paid up capital of the appellant is more than Rs 100000 and the application under section 153 C of the Act of 1913 contained a prayer in the alternative for the winding up of the appellant Section 24 of the provides that where any Act is repealed and re enacted with or without modifications then unless it is otherwise expressly provided any notification issued under the repealed Act shall so far as it is not inconsistent with the provisions re enacted continue in force and be deemed to have been issued under the provisions so re enacted unless and until it is superseded by a notification issued under those provisions Mr Banaji points out that in view of section 10 of the Act of 1956 a District Court can no longer be empowered to deal with an application of the kind made to the District Judge of Poona as that application asks for reliefs similar to those contemplated by sections 397 to 407 of the Act of 1956 and also asks for the winding up of a company whose paid up capital exceeds Rs 100000 and power to deal with such an 90 application cannot now be given to a District Court He therefore says that the notification issued under the Act of 1913 empowering the District Judge of Poona to deal with the application would be inconsistent in this respect with the provisions of the Act of 1956 and could not in view of section 24 of the be deemed to continue in force after the repeal of the Act of 1913 Hence it is contended that the notification has ceased to have any force and the District Judge of Poona has no longer any jurisdic tion to hear the application It is also said that this shows that the Act of 1956 indicates that the rights acquired under the Act of 1913 would come to an end on its repeal We are unable to accept these contentions Section 10 of the Act of 1956 deals only with the jurisdiction of courts It shows that the District Courts can no longer be empowered to deal with applications under the Act of 1956 in respect of matters contemplated by section 153 C of the Act of 1913 This does not indicate that the rights created by section 153 C of the Act of 1913 were intended to be destroyed As we have earlier pointed out from State of Punjab vs Mohar Singh 1 the contrary intention in the repealing Act must show that the rights under the old Act were intended to be destroyed in order to prevent the application of section 6 of the But it is said that section 24 of the puts an end to the notification giving power to the District Judge Poona to hear the application under section 153 C of the Act of 1913 as that notification is inconsistent with section 10 of the Act of 1956 and the District Judge cannot therefore continue to deal with the applica tion Section 24 does not however purport to put an end to any notification It is not intended to terminate any notification all it does is to continue a notification in force in the stated circumstances after the Act under which it was issued is repealed Section 24 therefore does not cancel the notification empowering the District Judge of Poona to exercise jurisdiction under the Act of l9l3 It seems to us that since under section 6 of the the proceeding in respect of the application under section 153 C 1 1955 I SCR 893 91 of the Act of 1913 may be continued after the repeal of that Act it follows that the District Judge of Poona continues to have jurisdiction to entertain it If it were not so then section 6 would become infructuous For these reasons we think that the appeal must fail and it is therefore dismissed with costs Appeal dismissed

In pursuance Of section 32 of the Indian Railways Act 1890 IX of 1890 the Central Government had by means of a notification fixed certain rates of terminal charges for loading and unloading goods carried from one station to another by Railway Inspite of this notification the appellant Railway Company did not levy any terminal charges in accordance with those rates up to a certain point of time and continued to charge at a rate which Was then prevalent and in which no terminal charges were included Subsequently however the Railway Company issued a Local Rates Advice by which terminal charges were added to the prevalent rates with the result that the total charges payable to the Railway by the respondent mills rose considerably It was for relief against this increase that the mills made a complaint under section 41 1 i of the Indian Railways Act to Railway Rates Tribunal The contention of the Railway Company inter alia was that as in increasing the charges the Administration had merely applied standardized terminal charges as notified by the Central Government no complaint could be made in respect thereof under section 41 1 i The Tribunal by a majority held that this was not a case of application of a standardised terminal charge and so it had jurisdiction to consider the question and they ordered a reduction of terminal charges from the total charges On appeal by the Railway Held that the Railway Rates Tribunal had no jurisdiction either to investigate the reasonableness or otherwise of terminal charges levied by the Railway or to reduce the same The charges sought to be levied by the Railway Administration were terminal charges within the meaning of the 927 Railways Act and the proposed levy being in accordance with the Government notification under section 32 of the Act was nothing more than the application of standardised terminal charges Irrespective of the fact of the actual user by any particular consignor of the stations sidings and other things mentioned in section 3 14 of the Railways Act terminal charges were leviable by reason of the mere fact that these things had been provided for by the Railway Administration Hall Co vs London Brighton and South Coast Railway Co considered

on No 217 of 1956 Petition under Article 32 of the Constitution of India for enforcement of Fundamental rights Pandit Nanak Chand for the petitioners I N Shroff for respondent No 1 1960 February 26 The Judgment of the Court was delivered by SHAH J This is a petition filed by Sahibzada Saiyed Muhammed Amirabbas Abbasi who will hereinafter be referred to as the first petitioner on behalf of himself and as the natural guardian of his two minor children Kamal Abbas and Jehanzeb Bano petitioners Nos 2 and 3 against the State of Madhya Bharat now the State of Madhya Pradesh and three other respondents for an appropriate writ or writs of Habeas Corpus Mandamus Certiorari Prohibition and any other writ direction or order directing the State of Madhya Bharat immediately to assume charge of the properties of the minor petitioners 2 and 3 and determining the amount of loss sustained by the minors and calling upon the State of Madhya Bharat and the other respondents to compensate the minors for the full value of the property lost due to their negligence in the discharge of their respective duties in failing to protect the minors properties and calling upon the 4th respondent to produce the minors before this court and directing that the minors be handed over to the custody of some relation who is competent under the Personal Law to have their custody and calling upon the Chief Secretary of the State of Madhya Bharat to furnish full particulars of the trust property released in favour of the 2nd respondent and directing the 1st respondent to produce in this court the box of jewellery entrusted to it with full particulars regarding its custody from March 29 1948 and ascertaining whether the contents have been misappropriated and further ascertaining the loss if any occasioned to the minor petitioners and its quantum and declaring liability of the respondents in that behalf and for further relief which the court may award in the circumstances of the case as just and proper 140 Prima facie the reliefs claimed ate not within the scope of a petition for a writ under article 32 of the Constitution This court has power under that Article to issue directions orders or writs including writs in the nature of habeas corpus mandamus prohibition quo warranto and certiorari whichever may be appropriate for the enforcement of any of the fundamental rights but by this petition the first petitioner claims on the plea that the respodents have misappropriated or misapplied the property of petitioners 2 and 3 a writ or writs directing that loss sustained by the minors be ascertained and made good and also asks this court to provide for the custody of the minors according to their Personal Law The facts which give rise to the petition are these The first petitioner married in 1940 one Naiyar Jahan Begam and by her he had two children petitioners 2 and 3 Naiyar Jahan Begam died in the year 1943 and petitioners 2 and 3 were thereafter looked after by Musharraf Jahan Begam mother of Naiyar Jahan Begam From her father Naiyar Jahan Begam had inherited certain valuable property and from her mother Musharraf Jahan Begam she had received a dowry of substantial value at the time of her marriage Before she died on March 6 1949 Musharraf Jehan Begam had made a trust in respect of certain property of the benefit of petitioners 2 and 3 The first petitioner had after the death of Naiyar Jehan Begam contracted a second marriage and of that marriage there were three children During the life of Musharraf Jehan Begam the first petitioner took no interest in petitioners 2 and 3 and at sometime in the year 1948 he migrated to West Pakistan and took up residence in Rawalpindi After the death of Musharraf Jehan Begam the first petitioner applied to the Madhya Bharat High Court for a writ in the nature of habeas corpus for a direction to produce petitioners 2 and 3 before the court on the allegation that the latter were wrong fully detained The High Court refused to give the direction and ordered that the first petitioner might if so advised apply under the Guardian and Wards Act for appropriate relief The first petitioner then applied to the 141 court of the District Judge at Ratlam for an order that he be appointed a guardian of the person and property of petitioners 2 and 3 On November 23 1949 the second respondent Sultan Hamid Khan cousin of Musharraf Jehan Begam applied that he be appointed guardian of the person and property of petitioners 2 and 3 and by order dated December 5 1949 the District Court appointed him guardian and rejected the application filed by the first petitioner Against the order passed by the District Court Ratlam Appeal No 20 of 1950 was filed in the High Court of Madhya Bharat This appeal was dismissed on March 29 1954 An application for special leave to appeal to this court under Act 136 against that order of the High Court was rejected on November 12 1956 The first petitioner had in the meantime applied to this court under article 32 of the Constitution for the reliefs which have already been set out To this petition petitioners 2 and 3 were impleaded as party petitioners the first petitioner alleging that he was their natural guardian and next friend Evidently the first petitioner could not claim to be the next friend of the minor petitioners 2 and 3 a guardian of their person and property having been appointed by the District Court Ratlam unless this court for reasons to be recorded deemed it to be for the welfare of the minors that the first petitioner be permitted to act or be appointed as the case may be vide 0 32 r 4 of the Code of Civil Procedure The first petitioner did not obtain any order of this court permitting him to act as the next friend of petitioners 2 and 3 notwithstanding the order passed by the District Court appointing respondent No 2 as their guardian The petition filed by the first petitioner is a somewhat prolix document The first petitioner claimed that the interest of the second respondent who was appointed a guardian by the District Court was adverse to the interests of the minors and that the latter was in any event unfit to be appointed a guardian of the minors that the second respondent had misappropriated the property of the minors and that he was not looking after the minors and was 142 acting contrary to their interest and that proceedings in the District Court were vitiated on account of partiality and collusion and by reason of deliberate violation of the order passed by the High Court The petitioner also claimed that the State of Madhya Bharat was bound to take steps to protect the entire property of the minor petitioners 2 and 3 but the first respondent had neglected to do so and had thereby rendered itself liable to make good the loss On these allegations the first petitioner submitted that the minor petitioners were deprived of the equal protection of the laws in force including the Personal Law and were accordingly discriminated against and their property was by reason of such discrimination in serious danger of being wasted or mis appropriated He also submitted that he could not be denied his rights under the Personal Law governing the minors as their natural guardian merely because he had acquired a foreign domicile Exercising jurisdiction under article 32 of the Constitution this court may grant relief for enforcement only of the rights conferred by Part III of the Constitution The alleged right of the first petitioner to guardianship of his minor children under the Personal Law is not one of the fundamental rights guaranteed to him by the Constitution nor by appointing respondent No 2 as the guardian of the minors under the Guardian and Wards Act is discrimination practised against the minors The second respondent was appointed guardian of the minors by order of a competent court and denial of equality before the law or the equal protection of the laws can be claimed against executive action or legislative process but not against the decision of a competent tribunal The remedy of a person aggrieved by the decision of a competent judicial tribunal is to approach for redress a superior tribunal if there be one In the present case against the order of the District Court appointing the second respondent the guardian of the person and property of the minors an appeal was preferred to the High Court and that appeal was dismissed Even an application for special leave to appeal to this court was rejected and the order of the District Court 143 became final If since the date on which the order appointing the guardian of the minors events have transpired which necessitate a modification of that order the proper remedy of the first petitioner is to apply to the District Court for relief in that behalf and not to approach this court for a writ under article 32 of the Constitution This court has rejected the application for special leave to appeal under article 136 and that order cannot be circumvented by resorting to an application for a writ under article 32 Relief under article 32 for enforcement of a right conferred by ch III can be granted only on proof of that right and in fringement thereof and if by the adjudication by a court of competent jurisdiction the right claimed has been negatived a petition to this court under article 32 of the Constitution for enforcement of that right notwithstanding the adjudication of the civil court cannot be entertained The relief claimed by the first petitioner for assessing the liability of the respondents on the plea that they have either misappropriated the estate or by negligence caused loss to the estate of the minors may be obtained in a properly constituted suit and not in a petition under article 32 of the Constitution The property to which the minors are or may be entitled may be ascertained in a proceeding under the Guardian and Wards Act or in a suit in the civil court and not in a petition under article 32 of the Constitution In our judgment the petition is wholly misconceived and must be dismissed with costs payable by the first petitioner personally Petition dismissed

The respondent firm Harivallabhdas Kalidas was appointed the Managing Agent of Shri Ambika Mills Ltd the appellant in the connected appeal by means of a Managing Agency Agreement the relevant portion of which ran thus 2a The Company shall pay each year to the said Firm either the commission of 5 five per cent on the total sale proceeds of yarn and of all cloth manufactured from cotton 51 silk jute wool waste and other fibres and sold by the company or a commission of three pies per pound avoirdupois on the sale whichever the said Firm choose to take and also a commission of 10 ten per cent on the proceeds of sale of all other materials sold by the Company and 10 ten per cent on the bills of any ginning and pressing factories and on any other work done by the Company And by clause 5 it was provided 5 The remuneration payable to the said Firm under clause 2a shall be paid to the said Firm forthwith after the 31st day of December or such other date as the Directors may fix for the closing of the accounts of the Company in each year and after such accounts are passed by the company in General Meeting Subsequently at the request of the Managed Company the Managing Agents agreed to charge commission at 3 per cent on sales instead Of 5 per cent for the year ending December 31 1950 and a resolution to that effect was passed by the Managed Company and a formal agreement to that effect was executed The income tax Authorities however taxed the Managing Agents for two assessment years on the basis that by entering into an agreement with the mills they had voluntarily relinquished certain sums of money as their commission which had accrued to them as income for the purpose of income tax An appeal was taken to the Income tax Tribunal which held that the agreement between the Managing Agent and the Managed Company to receive remuneration at 3 per cent on the total sale was valid and took effect from January 1 1950 and the questions whether the commission accrued on the proceeds of every single sale or only when the assessee firm exercised its option to charge it on the total sale proceeds or on the weight of the yarn sold and whether the Managing Agents would get their commission after the whole profit was determined at the end of the year were decided in favour of the Managing Agents The High Court also on a reference made to it at the instance of the Commissioner of Income tax answered the above mentioned question in favour of the Managing Agents On appeal by the Incomee tax Commissioner by special leave Held that on a proper construction of the agreement it was clear that there was no accrual of commission till the end of the year and that it did not accrue as and when the sales took place The Managing Agents were to be paid at the end of the year and by agreeing to the modification of the agreement before then they had not voluntarily relinquished any portion of the commission Commissioner of Income tax Madras vs KRMTT Thiagaraja Chetty and Co ED Sasoon and Co Ltd vs The Commissioner of Income tax Bombay City 1955 i SCR 313 and Commissioner of Inland Revenue vs Gardner Mountain and D Ambrumenil Ltd not applicable

ION Criminal Appeal No 14 of 1959 Appeal by special leave from the judgment and order dated November 19 1957 of the Bombay High Court at Rajkot in Criminal Appeal No 137 of 1957 arising out of the Judgment and order dated August 31 1957 of the Sessions Judge Sorath Division Junagadh in Sessions Case No 26 of 1957 P K Chatterjee for the appellant H J Umrigar and B H Dhebar for the respondent 131 1960 February 26 The Judgment of the Court was delivered by IMAM J This appeal is by special leave The appellant was convicted under section 304 Part I of the Indian Penal Code and sentenced to imprisonment for life He appealed to the Bombay High Court According to the judgment of the High Court the appeal was admitted only on the point of sentence The High Court reduced the sentence from imprisonment for life to 10 years rigorous imprisonment It was submitted on behalf of the appellant that the High Court could not in law admit an appeal only on the point of sentence and the appellant was entitled to have his appeal heard on the merits of his conviction as well The evidence upon which the appellant was convicted was unsatisfactory and he was entitled to be acquitted Shortly stated the case of the prosecution was that the appellant had caused the death of Zina Hira on April 6 1957 when the deceased was returning from an adjoining village to the village of his residence The appellant met him on the way and accused him of having committed theft in the appellant s house which the deceased denied Upon this the appellant attacked him with a stick which had iron rings round it A number of blows were given by the appellant with this stick in consequence of which Zina Hira fell down Although a doctor was called for from Keshod 8 miles away ultimately the deceased was taken to Junagadh for better medical treatment but died on the way in the early hours of the morning of April 7 According to the case of the appellant he was not present at the scene of the crime and pleaded not guilty to the charge According to the judgment of the High Court the appeal of the appellant before it was admitted only on the point of sentence It was urged that this procedure adopted by the High Court was not in conformity with the provisions of sections 421 and 422 of the Code of Criminal Procedure Reliance was placed upon the decisions of the Calcutta High Court and Patna High Court in the cases of Nafar Sheikh vs 132 Emperor 1 Gaya Singh vs King Emperor 2 Sudhir Kumar Neogi and Another vs Emperor 1 and Sheikh Rijhu and Others vs Emperor 4 and of the Privy Council in the case of The King Emperor vs Dahu Raut 5 Reference was also made to the decision of the Patna High Court in the case of Kuldip Das vs King Emperor 6 and the decision of the Bombay High Court in the case of Bai Dhankor vs Emperor7 In order to appreciate the submission made on behalf of the appellant reference to certain provisions of the Code of Criminal Procedure in Chapter XXXI concerning Appeals will be necessary Under section 4181 an appeal may lie on a matter of fact as well as a matter of law except where the trial was by jury in which case the appeal shall lie on a matter of law only It is unnecessary to refer to sub section 2 of this section for the purposes of this appeal Under section 419 every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader and every such petition shall unless the Court to which it is presented otherwise directs be accompanied by a copy of the judgment or order appealed against and in cases tried by a jury a copy of the heads of the charge recorded under section 367 As to what should follow on the presentation of such a petition it will be necessary to quote the provisions of sections 421 and 422 of the Code Section 421 reads 421 1 On receiving the petition and copy under section 419 or section 420 the Appellate Court shall peruse the same and if it consideres that there is no sufficient ground for interfering it may dismiss the appeal summarily Provided that no appeal presented under section 419 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same 2 Before dismissing an appeal under this section the Court may call for the record of the case but shall not be bound to do so 1 Cal 2 Pat 3 AIR 1942 Pat 46 4 AIR 1931 Pat 351 5 1935 LR 62 IA 129 6 Pat 7 1937 ILR CB Bom 365 133 Section 422 reads 422 If the Appellate Court does not dismiss the appeal summarily it shall cause notice to be given to the appellant or his pleader and to such officer as the State Government may appoint in this behalf of the time and place at which such appeal will be heard and shall on the application of such officer furnish him with a copy of the grounds of appeal and in cases of appeal under section 411A subsection 2 or section 417 the Appellate Court shall cause a like notice to be given to the accused It is clear from these provisions that on receiving the petition and a copy under section 419 the Appellate Court shall peruse the same and if it considers that there is no sufficient ground for interfering it will dismiss the appeal summarily and that if the Appellate Court does not dismiss the appeal summarily it shall cause notice to be given to the appellant or his pleader and to such officer as the State Government may appoint in this behalf of the time and place at which such appeal will be heard The recording of an order that the appeal is admitted when it is not summarily dismissed is not a happily chosen expression as was pointed out by the Privy Council in the case of The King Emperor vs Dahu Raut 1 Section 421 gives ample power to the Appellate Court to dismiss an appeal summarily if it considers that there is no sufficient ground for interfering On the other hand if it does not dismiss the appeal summarily then it is obligatory upon it to cause notice of the appeal to be given to the appellant and to such officer as the State Government may appoint in this behalf of the time and place at which such appeal will be heard These provisions do not contemplate a partial summary dismissal of an appeal as was pointed out by the Privy Council in the above mentioned case where it was stated by Lord Thankerton The terms of the section equally exclude the possibility of partial summaary dismissal e g in so far as the conviction is appealed against Failing summary dismissal the provisions of sections 422 and 423 apply and in their Lordships opinion the pro 1 1935 LR 62 l A 129 134 visions as to notices in section 422 and the provisions as to sending for the record in section 423 are clearly peremptory and there can be no room for revision at that stage It was however submitted on behalf of the State of Bombay that the facts in the case before the Privy Council can be distinguished from the facts of the present case because in the case before the Privy Council no notices were issued under section 422 and the record was not sent for in accordance with section 423 In the present case notices were issued under section 422 and the record was sent for in accordance with section 423 of the Code Particular reliance was placed upon the con cluding portion of the Privy Council judgment to the following effect Accordingly their Lordships will humbly advise His Majesty that the appeals should be allowed and that it should be declared that upon the true construction of the Criminal Procedure Code the Appellate Court is entitled to dismiss an appeal summarily in terms of section 421 unless the Court is satisfied that there is no sufficient ground for interfering in accordance with the relief sought in the appeal and that where the appeal is not dismissed summarily the court is bound in order to the disposal of the appeal to comply with the provisions of section 422 as to notice and with the provisions of section 423 as to the sending of the record if such record is not already in Court It seems to us however having regard to the provisions of the Code that while an Appellate Court has power to dismiss an appeal summarily if it considers that there is no sufficient ground for interfering it has no power to direct as in the case before us that the appeal shall be heard only on the point of sentence Such an order is not an order of summary dismissal under section 421 and neither is it an order in terms of section 422 of the Code When an appeal is filed it is an appeal against conviction and sentence and it is not permissible for an Appellate Court to direct that it shall be heard only on the question of sentence Our interpretation of sections 421 and 422 is in keeping with the interpretation of these sections by the 135 Privy Council in Dahu Raut s case The decisions of the Calcutta High Court and the Patna High Court in Cal 606 AIR 1942 Pat 46 Pat 254 referred to above appear to us to be correct In these circumstances reference need not be made to the view expressed by the Patna High Court in 1932 ILR II Pat 697 which was a judgment before the decision of the Privy Council in Dahu Raut s case The decision of the Bombay High Court in ILR endeavoured to find a way in which the difficulty could be resolved where the Appellate Court was of the opinion that only the question of sentence was involved For the purposes of this appeal it is unnecessary for us to say anything about this decision because what was stated there does not arise for consideration as in the present case according to the judgment of the High Court the appeal was admitted only on the point of sentence It was also urged by Mr Umrigar that under section 423 an Appellate Court had the power to reduce the sentence That is so but that power can only be exercised after the requirements of section 422 have been complied with The Appellate Court after hearing the appeal certainly has the power in finally disposing of the appeal to reduce the sentence but that does not entitle it to direct that an appeal is admitted only on the question of sentence We make it clear however that in dealing with Mr Umrigar s submission on this point we are concerned with the powers of an Appellate Court and not with the power of a High Court in the exercise of its revisional jurisdiction which does not arise for consideration in this appeal In our opinion the form of the order admitting the appeal in the present case was invalid and the appellant could have insisted that since the appeal had not been summarily dismissed the High Court should have heard his appeal on the merits as well As the appeal was not heard on the merits we considered whether the appeal should be sent back to the High Court for rehearing on the merits We have however thought it fit to hear the appeal on the merits for ourselves 136 We accordingly heard the learned Advocate for the appellant on the evidence It is clear to us from a perusal of the evidence that the case has been amply proved against the appellant There was an eye witness who saw the appellant assaulting the deceased with a stick He was in some way related to the deceased which he attempted to deny otherwise there is nothing in his evidence to induce a court to distrust his testimony This eye witness Bava Tapu immediately after the assault went to the Police Patel of Simroli one Keshav and told him that the deceased had been assaulted by the appellant Keshav corroborated Bava Tapu in this respect Keshav s evidence in this respect is also corroborated by Natha Jiwa who stated that Bava Tapu came and informed Keshav that Zina Hira had been severely assaulted and injured by the appellant Bogha Jiwa also corroborated Keshav in this respect None of these witnesses have any real motive to depose against the appellant In addition to this evidence there was the dying declaration of the deceased as to who his assailant was Furthermore there was the recovery of a stick buried underground at the instance of the appellant which was found to be stained with human blood according to the report of the Serologist The other circumstantial evidence need not be referred to It was urged on behalf of the appellant that the reason for the appellant assaulting the deceased could not be true as no reference was made to it in the First Information lodged by Keshav Reference also was made to the evidence of the Police Officer Priyakant that no information of the theft had been lodged by the appellant at the thana The appellant in his statement denied that the deceased had committed any theft in his house and the witness Karsan brother of the appellant had stated in cross examination that there had been no theft in their house This witness was examined by the prosecution but was declared hostile and permission was granted by the Court to cross examine him It seems to us however that even if the story about the accusation of theft against the deceased made by the appellant was not stated in the First Information the omission is of little consequence because even 137 Keshav stated in the First Information that he ha enquired from Bava Tapu as to how the quarrel ha started Merely because there was no information lodged about the theft at the police station it doe not necessarily follow that the appellant could no have been suspecting the deceased The denial of the appellant and of his brother cannot assume much importance as it would be natural for them to den any such thing Apart from this even if the read cause for the assault may be obscure if the evidenc is clear that the appellant assaulted the deceased matters very little if the Court has not before it a verclear motive for the assault As we have already said apart from Bava Tapu hesitating to admit that he was somewhat related to the deceased there was no apparent motive for him to depose against the appellant in such a serious case as this His conduct would show that he had in fact witnessed the assault because immediately after the assault he went to the Police Patel Keshav and informed him that the appellant had assaulted the deceased with a stick There is no reason to doubt the genuineness of the dying declaration There is no good reason for supposing that the deceased would have accused the appellant falsely a there was no previous enemity established It is also unlikely that he would let go his real assailant and accuse the appellant falsely The dying declaration in corroborated by the evidence of the eye witness Bava Tapu It further receives corroboration from the recovery of the stick stained with human blood at the instance of the appellant which had been identified by Bava Tapu as belonging to the appellant It is clear therefore that the evidence in the case which we have carefully examined and see no good reason to distrust established beyond doubt that the appellant had struck the deceased several blows with a stick and thus caused his death He was therefore guilty at least under section 304 of the Indian Penal Code as found by the trial court The reduced sentence imposed by the High Court does not appear to be unduly severe The appeal is accordingly dismissed Appeal dismissed

The respondent had made an application under section 53 C Of the Companies Act 1913 with an alternative prayer for winding up against the appellant company to the District judge Poona who had been authorised under the Act to exercise jurisdiction While the application was pending the Companies Act 1913 was repealed by the The appellant company thereupon applied to the District judge to dismiss the application on the ground that he had ceased to have any jurisdiction to deal with the application on the repeal of the Of 1913 Held that section 6 of the General Clauses Act preserved the jurisdiction of the District judge to deal with the application under section 153 C Of the Indian Of 1913 notwithstanding the repeal of that Act Section 647 of the did not indicate any intention to affect the rights under the Indian of 19I3 for section 658 of the of 1956 made section 6 of the General Clauses Act applicable notwithstanding anything contained in section 647 of that Act 86 Section 24 of the General Clauses Act does not put an end to any notification It does not therefore cancel the notification issued under the Indian of I9I3 in so far as that notification empowered the District judge to exercise jurisdiction under section 153 C of the Indian of I9I3 even though under section 10 of the of 1956 a District judge can no longer be empowered to exercise jurisdiction under a sections 1397 to 407 of the which correspond to section I53 C Of the Indian 19I3 or b in respect of the winding up of a company with a paid up share capital of not less than Rs 100000 which the appellant company was

ivil Appeals Nos 29 and 30 of 1951 Appeals from the judgment and decree dated 26th October 1943 of the High Court of Judicature at Allahabad Verma and Yorke JJ in First Appeal No 48 of 1938 arising out of the judgment and decree dated 6th August 1937 of the Court of the Additional Civil Judge at Agra in Suit No 30 of 1936 MC Setalvad and Kirpa Ram K B Asthana with them for the appellant in Civil Appeal No 29 of 1951 KN Agarwal for the appellant in Civil Appeal No 30 of 1951 CK Daphtary G C Mathur with him for the respond ents in both the appeals April 24 The Judgment of the Court was deliv ered by MAHAJAN J 796 Mst Khem Kuer the young widow of Shah Chiranji Lal was murdered on the 28th August 1919 and Mst Mohan Kuer the mother died on the 5th December 1932 Prem Kuer the respondent in the appeal claiming herself to be the heir to Shah Chiranji Lal as his sister brought the suit giving rise to this appeal in the court of the civil judge Agra against amongst others Mst Phool Kuer the present appellant for recovery of possession of the properties of Shah Chiranji Lal and mesne profits Prem Kuer joined her half sister Mst Ram Kuer and their sons as plaintiffs along with herself In the array of defendants were impleaded Mst Phool Kuer and Mst Khem Kuer widows of Shah Jwala Prasad and Shah Madho Lal and his sons and a host of others as transferees of the properties The main defence to the suit was that Shah Jwala Prasad and Shah Madho Lal were recognized to be the owners and heirs to the entire estate of Shah Chiranji Lal by Khem Kuer and Mohan Kuer in a family settlement arrived at between the parties in suit No 120 of 1915 that by virtue of this family settlement the estate of the deceased was vested in them subject to the life estates of the two women and that the plaintiffs who came to be recognized as reversioners by the Hindu Law of Inheritance Amendment Act 11 of 1929 were not entitled to claim it It was further pleaded that on the death of Khem Kuer in 1919 Mohan Kuer surrendered the estate in favour of Jwala Prasad and Madho Lal and they took possession of it as owners and the plaintiffs who subsequently became statutory heirs in 1919 could not be allowed to question the surrender and reopen the succession which could not remain in abeyance The learned additional civil judge who tried the suit dismissed it holding that the compromise of 1915 was a bona fide settlement of a bona fide dispute and was binding as a family settlement being for the benefit of the estate that Mohan Kuer surrendered the estate validly in favour of Jwala Prasad and Madho 795 MAHAJAN J The dispute in this appeal concerns the zemindari and house properties last owned by Shah Chiranji Lal who died at a young age on the 14th May 1913 leaving him surviving a widow Mst Khem Kuer and his mother Mst Mohan Kuer besides a number of collaterals indicated in the pedigree table below Shah Pirthi Raj Mst Tulsa KuerShah Lal ChandMst Mohan Kuer Hira Lal Shah Jai Kisen Mst Ram Kuer Kherpal Shah Jwala Shah Sri Prasad Kisen 1Khem Kuer Shah Madho Ram Chand Lachman Kishen Lal 2Phool Lal Prasad Mst Umri Kuer Sudar Mad Dwarka shan sudan Prasad Lal Lal Ganga Prasad Jamna Mst Prem Kuer Shah Chiranji Lal Prasad Lekh Raj Mst Khem Kuer Manohar Lal Lachmi Narain 797 Lal and they entered into possession of it after the death of Khem Kuer Some of the transferees who had been implead ed as defendants compromised the suit with the plaintiffs and that part of the suit was decided according to the terms thereof between those parties Prem Kuer preferred an appeal to the High Court of Judicature at Allahabad against the decree dismissing her suit The High Court by its judgment dated the 26th Octo ber 1943 allowed the appeal reversed the findings of the learned additional civil judge on the above issues and decreed the plaintiffs suit with costs Some of the trans feree defendants compromised with the plaintiff appellant in the High Court and the appeal was decided in terms thereof in their favour Two main points which are in controversy in this appeal and require consideration are 1 Whether the compromise in suit No 120 of 1915 amounts to a family settlement and binds the plaintiff respondent and 2 Whether the surrender by Mst Mohan Kuer was a valid surrender under Hindu law In order to appreciate the respective contentions of the parties it is necessary to set out shortly in chronological order the history of the events which has resulted in this controversy As already stated Shah Chiranji Lal died on the 14th May 1913 leaving considerable movable and immovable property At the time of his death his widow Khem Kuer was about eleven years old and his mother Mohan Kuer was about 53 years old The two reversioners Shah Jwala Prasad and Shah Madho Lal made an application for mutation of names of the estate in their favour claiming it on the basis of a will alleged to have been made by Shah Chiranji Lal on the 13th May 1913 a day before his death On the 10th of September 1913 an application was made by Mohan Kuer for herself and as guardian of Khem Kuer Challenging the genu ineness of the will and claiming 798 that the estate of the late Shah Chiranji Lal should be mutated in their names Notice of this application was given to the two reversioners but they thought it prudent not to appear and to contest the contentions raised by the two ladies with the result that the inheritance of the late Chiranji Lal was mutated in the name of the widow as sole heir under the guardianship of Mohan Kuer by an order dated the 28th October 1913 The reversioners had also made applications in pending suits for getting themselves im pleaded as legal representatives Mohan Kuer applied for the removal of their names and for substitution of the name of the widow and of herself in those cases Pending decision of these matters on the 11th May 1915 suit No 120 of 1915 was filed by Jwala Prasad and Madho Lal on the basis of the alleged will of the 13th May 1913 On the same day an application was made for the appointment of a receiver and an interim order appointing a receiver was passed by the court On the 18th May 1915 Mohan Kuer for herself and as guardian of the minor widow made an application praying for the discharge of the receiver By an order dated the 23rd September 1915 the receiver was discharged and it was held by the civil judge that the plaintiffs had no prima facie case and that the will propounded by them was a suspicious document On the 18th December 1915 suit No 120 of 1915 was compromised between the parties This compromise is in the following terms 1 The plaintiffs relinquish their claim for possession over the estate of Shah Chiranji Lal The defendants shall have all those rights to the estate of Shah Chiranji Lal which she had as a Hindu widow according to law After the death of the two Musammats the plaintiffs in equal shares and after them their heirs who might have the right of survivorship one after the other shall be the owners of the estate of Shah Chiranji Lal The name of Mst Mohan Kunwar defendant against one half of the property in lieu of maintenance shall continue 799 4 Mohan Kunwar and Mst Khem Kunwar shall have power to do anything they might choose with the entire income from the movable and immovable property cash orna ments amount of decrees and documents household goods and other movables which they might have in their possession The plaintiffs or anyone else shall have no power to inter fere or to ask for rendition of accounts In case Mohan Kunwar defendant dies first Mst Khem Kunwar shall as a Hindu widow become the owner in posses sion of the entire property of which Mst Mohan Kuer might have been in possession in any way subject to the provi sions of condition No 4 In case Mst Khem Kuer defendant dies first Mst Mohan Kuer shall as a Hindu widow become the owner in possession of the entire property of which Mst Khem Kuer might have been in possession in any way subject to the provisions of condition No 4 In accordance with the terms of this compromise suit No 120 of 1915 was dismissed In the proceedings that were pending for substitution of names the court on the 22nd December 1915 ordered that Khem Kuer and Mohan Kuer be impleaded as legal representatives of the late Shah Chiranji Lal On the 2nd September 1918 Khem Kuer brought a suit against her mother in law Mohan Kuer for a declaration to the effect that she alone was the lawful heir of Chiranji Lal and was the owner of the property mentioned in schedule A and that the defendant had no concern with it This suit was compromised between the parties on the 22nd April 1919 Mohan Kuer agreed that Khem Kuer s suit be decreed Khem Kuer undertook to look after Mohan Kuer in every way and if she desired to live separately from her she agreed to pay her a sum of Rs 3000 per annum by way of maintenance Khem Kuer did not live long after her having become owner of the entire estate of her husband under the terms of this compromise As stated already she was murdered on the 28th August 1919 The estate 104 800 thus became vested in Mohan Kuer both according to Hindu law as well as in accordance with the terms of the compromise of the 18th December 1915 It is alleged that either on the fourth or the thirteenth day after the death of Khem Kuer Mohan Kuer when asked about the mutation of the estate said that she had no concern with it and had relinquished it and had devoted herself to worship On the 15th September 1919 an application bearing the signature of Mohan Kuer in Hindi was presented by her mukhtar Chaturbhuj in the court of the subordinate judge at Agra praying that the sale certificate in suit No 1919 Shah Jwala Prasad vs Rai Bahadur Shah Durga Prasad be prepared in the names of Shah Jwala Prasad and Shah Madho Lal for they were the heirs in possession of the properties of Shah Chiranji Lal This application Exhibit N 31 contains the following recital Mst Khem Kuer died on the 28th of August 1919 I do not want to take any proceedings in my own name Shah Jwala Prasad and Shah Madho Lal are the subsequent heirs and it is in their names that all the mutation proceedings etc are being taken in the revenue court They have been made the heirs in possession of the entire property and an applica tion has been filed in their names in this court for prepara tion of the sale certificate This petitioner has got no objection to the preparation of the sale certificate in their names for they are the heirs and are in possession of the property The sale certificate was prepared accordingly On the 16th September 1919 Jwala Prasad and Madho Lal applied for mutation in respect of the lands relating to mauza Somra in the court of the tahsildar of Etmadpur In column 5 of this application Exhibit A 14 it was alleged that they were entitled to mutation by right of inheritance Similar appli cations were made in respect of other villages also Vide Exhibit 128 etc Mutations were entered in all the villages on the basis that both of them were heirs in equal shares to the property of the deceased though according to Hindu law Shah Jwala Prasad alone was the 801 next heir During the course of the mutation proceedings one Chintaman general attorney of Shah Jwala Prasad was exam ined on the 11th October 1919 and he stated that Mst Khem Kuer died on the 28th August 1919 that Shah Jwala Prasad and Shah Madho Lal were her heirs in equal shares that Mohan Kuer was the mother in law of the deceased and she did not want her name to be recorded and had made relinquishment in favour of Shah Madho Lal and Shah Jwala Prasad in the civil court on the 15th September 1919 Chaturbhuj gener al attorney of Mohan Kuer was examined in the same proceed ings on the 27th October 1919 and he stated that Mohan Kuer did not want her name to be recorded in place of the name of the deceased that she had no objection to the entry of the names of Shah Jwala Prasad and Shah Madho Lal that she had sent him for making that statement He admitted the relinquishment filed by Mohan Kuer in the civil court with respect to the property of Mst Khem Kuer but he was not able to state when that relinquishment had taken place The tahsildar after recording these statements ordered the mutation of names in favour of the two reversioners Exhibit M 2 On the 22nd November 1919 the two reversioners Shah Jwala Prasad and Shah Madho Lal having entered into possession of the estate after the death of Khem Kuer made a gift of property of the value of about Rs 50000 in favour of the sisters of Shah Chiranji Lal by means of two deeds of gift Vide Exhibit M 16 These gift deeds contain the following recitals Shah Chiranji Lal deceased was the owner of Katariha estate in which besides other villages the villages speci fied below were also included and as he had no issue after his death Mst Khem Kuer became his heir as a Hindu widow of a joint family subject to Mitakshara school of law On her death we the executants who were entitled to become the absolute owners of the estate of Shah Chiranji Lal according to Shastras became the absolute owner of the entire property 802 of Shah Chiranji Lal by inheriting the estate from him We obtained possession over everything and mutation of names also were effected in our favour from the revenue court in respect of all villages Shah Chiranji Lal deceased had two sisters Mst Ram Kuer and Mst Prem Kuer and he had a desire during his lifetime to give them some property but owing to sudden death he could not himself fulfil his intention during his lifetime We the executants accept this fact as desired by him Besides this the mother of Shah Chiranji Lal also desires the same thing and it is our duty to fulfil the same and to give property to the Musammats aforesaid is considered to be a pious and good act from the religious point of view It is our duty also to respect their wishes and fulfil the same so that the people of our caste and family might not think that after the death of Shah Chiranji Lal his wishes remained unfulfilled Hence for the reasons set forth above and keeping in view the honour of the family and pious nature of the act we the executants while in a sound state of body and mind make a gift of the following villages in favour of the donees The donees subsequently made a number of transfers of the property gifted to them and in every respect the gift deeds were acted upon Jwala Prasad the presumptive rever sioner died in the year 1980 In suit No 49 of 1928 same as No 89 of 1929 one Pandit Rikh Ram had obtained a decree against Shah Madho Lal and his sons and they appealed against it to the High Court and also applied for postponement of the preparation of the final decree Stay was ordered on the applicants furnishing security in the sum of Rs 20000 for future interest costs etc On the 26th May 1930 in compliance with the order of the High Court a security bond was executed by Shah Madho Lal and his sons as first party and by Mst Mohan Kuer as second party containing the following recitals After the death of Mst Khem Kuer Mst Mohan Kuer was to become the owner of the property with 803 limited interests as a Hindu mother but she relinquished her inheritance and did not agree to accept any property By means of a private arrangement ie a family arrange ment it was decided as between Shah Jwala Prasad and Shah Madho Lal that they should be the owners of the property aforesaid in equal shares Documents in that connection were registered Thus Shah Madho Lal executant No1 is the exclusive owner of the property given below which is being pledged and hypothecated under this security bond Execu tant No 4 the second party has after hearing and under standing the contents of this security bond joined in token of the veracity of the facts noted above so that in future she might not be able to take objection to it and so that she might have no objection of any sort to the security bond Executant No 4 was Mst Mohan Kuer On the 30th June 1930 an affidavit bearing the thumb impression of Mst Mohan Kuer was filed in the same pro ceedings containing the following statements I solemnly affirm and say that after the death of Mst Khem Kuer I did not agree to accept property nor was I the heir and that I relinquished the entire property in favour of Shah Jwala Prasad who became the owner of the entire property which was in possession of Khem Kuer The Subordinate Judge expressed the view that the bond could not be held to have been executed by Mohan Kuer she being a pardanashin lady He declined to accept the deed as sufficient and valid security On the 9th July 1930 the High Court of Judicature at Allahabad dismissed the applica tion for stay of proceedings On the 15th July 1931 Mohan Kuer instituted suit No 24 of 1931 in the court of the subordinate judge of Mathura against the widows of Shah Jwala Prasad Shah Madho Lal and his sons and a number of transferees who had taken the property from these two reversioners In para 8 of the plaint it was alleged 804 that the plaintiff was an old pardanashin woman was simple and of week intellect and illiterate that on account of the murder of Mst Khem Kuer she was very terror stricken and was full of sorrow and had no knowledge about her rights that the third defendant and Jwala Prasad who wanted to get the property took undue advantage of the plaintiff s afore said condition and unlawfully entered into possession of the property left by Chiranji Lal deceased and caused the muta tion of names in their favour In para 12 it was said that the defendants had got the thumb impressions of the plain tiff on certain documents without telling her the contents of those papers simply by saying that a decree for a con siderable amount had been passed against the property and it was going to be sold in auction and that a security bond must be furnished for saving the property She prayed for a decree for possession of the property in dispute in her favour against the defendants During the pendency of this suit Mohan Kuer died on the 5th December and on her death an attempt was made by the present plaintiffs to get them selves impleaded as her legal representatives but on the 9th October 1934 it was held that the claim of Mst Mohan Kuer was of a personal character and the suit therefore could not proceed owing to abatement It was however noted that the legal representatives could file a separate suit if so advised It is in consequence of this order that the suit out of which this appeal arises was filed on the 30th April 1936 It was contended by the learned Attorney General that the High Court on mere suspicions and unwarranted assump tions had found the main issues in the case against the appellant and had erroneously held that the compromise in suit No 120 of 1915 was not binding on the plaintiffs and that the surrender by Mohan Kuer was not valid surrender under Hindu law After hearing the learned counsel at considerable length we did not think it necessary to hear the respondent in reply as in our opinion the decision of the High Court on both the points was right 805 On the point of surrender the learned Attorney General contended that the widow effaced herself and put both the reversioners in possession of the property half and half and agreed to take Rs 3000 from them for her maintenance and that the fact of surrender was satisfactorily proved from the conduct of Mohan Kuer in allowing the estate to be mutated in the names of the reversioners and in allowing them to take possession of it also by the different state ments made by her and from the other documentary and oral evidence led in the case Emphasis was laid on the state ments contained in the application Exhibit M 31 on the statement of her mukhtar Chaturbhuj and on the recitals of the security bond and the affidavit Exhibit P 30 Whether Mohan Kuer effaced herself and surrendered the property or whether she merely abandoned it or whether she entered into an arrangement for the division of the estate between herself the two reversioners and the daughters and their sons it is not possible to predicate with any amount of certainty No definite opinion can be offered on the question whether whatever she did she did voluntarily after fully realizing the consequences of her act and wheth er as a pardanashin lady she hadbeen properly advised on the matter or whether she merely acted on sentiment Considerable doubt is cast on the story of surrender set up by the defendants by the recitals in the two deeds of gift dated 22nd November 1919 extracted above The donors did not base their title to the property either on the compromise of 1915 or on the surrender of Mohan Kuer of the year 1919 or on the will on the other hand they said that they had become owners of the property of Chiranji Lal by inheritance under Hindu law after the death of his widow Both of them could not possibly inherit the property half and half under Hindu law Moreover there is no clear or definite evidence of either the time when the arrangement was made or of the terms thereof The evidence on these points is vague and 806 unsatisfactory It is completely wanting as to the arrange ment under which Mohan Kuer became entitled to receive Rs 3000 from them The conduct of Mohan Kuer and the various statements by her no doubt do indicate that she cut off her connection with the bulk of the estate of Chiranji Lal after the death of the widow and received a sum of Rs 3000 from the rever sioners and it is also clear that at her instance the rever sioners gave property of the value of Rs 50000 to her daughters but in the absence of any satisfactory evidence as to the precise nature of this arrangement it is not possible to conclude that the widow after fully realizing as to what she was doing and after proper advice effaced her self In this connection the allegations made by her in the suit of 1931 cannot be altogether ruled out from considera tion Assuming however for the sake of argument that Mobart Kuer purported to relinquish her estate in favour of Jwala Prasad and Madho Lal in our opinion the relinquishment connot in law operate as an extinction of her title in the estate The principle underlying the doctrine of surrender is that it cannot possibly be made in favour of anybody except the next heir of the husband Vesting of the estate in the next reversioner takes place under operation of law and it is not possible for the widow to say that she is withdrawing herself from the husband s estate in order that it may vest in somebody other than the next heir of the husband It was held by this court in Mummareddi Nagi Reddi vs Pitti Durairaja Naidu1 that so far as the next heir is concerned there cannot be a surrender of the total ity of the interest which the widow had if she actually directs that a portion of it should be held or enjoyed by somebody else other than the husband s heirs and that the position is not materially altered if the surrender is made in favour of the next heir with whom a stranger is associat ed and the widow purports to relinquish the estate in order that it may vest in 1 1951 sc R 655 807 both of them Though in the written statements of the two sets of defendants different versions of the character of the arrangement were pleaded the learned Attorney General before us stated that the surrender by the widow was made both in favour of Jwala Prasad and Madho Lal in equal moie ties Madho Lal admittedly was not the next reversioner entitled to succeed to the estate Thus the surrender of the totality of the interest of the widow was not made in favour of the next heir That being so it cannot operate as a valid surrender If the surrender could be held a valid one then obviously succession that had opened out in 1919 and vested in the next heirs could not be divested at the instance of the plaintiffs in the year 1932 on the death of Mohan Kuer but in view of the invalidity of the surren der it has to be held that succession to Shah Chiranji Lal s estate opened in 1932 and the plaintiffs as next heirs were entitled to take it The next question for consideration is whether the compromise of 1915 entered into between Mohan Kuer as guardian of Khem Kuer and the two reversioners who had claimed the estate on the basis of a will was a bona fide family arrangement and thus binding on the ultimate rever sioners the plaintiffs It is well settled that when the estate of a deceased Hindu vests in a female heir a decree fairly and properly obtained against her in regard to the estate is in the absence of fraud or collusion binding on the reversionary heir but the decree against the female holder must have involved the decision of a question of title and not merely a question of the widow s possession during her life vide Venayeck Anundrow vs Luxumeebaee 1 This principle of res judicata is not limited to decrees in suits contested and it is competent to a widow to enter into a compromise in the course of a suit bona fide in the inter est of the estate and not for her personal advantage and a decree passed on such compromise is binding upon the reversioner The question whether the transaction 1 808 is a bona fide settlement of a disputed right between the parties depends on the substance of the transaction and in order that it may bind the estate it should be a prudent and reasonable act in the circumstances of the case As observed by their Lordships of the Privy Council in Ram sumran Prasad vs Shyam Kumari 1 the true doctrine is laid down in Mohendra Nath Biswas vs Shamsunnessa Khatun2 decided in 1914 and it is that a compromise made bona fide for the benefit of the estate and not for the personal advantage of a limited owner will bind the reversioner quite as much as a decree against her after contest That being sowe proceed to inquire whether the compromise in the present case is one that can be supported on these principles In agreement with the High Court we are of the opinion that it cannot be so supported Mohan Kuer in entering into the compromise on behalf of the minor widow never applied her mind to the interests of the ultimate reversioners She entered into it for her own personal benefit and for the personal benefit of the minor widow in complete indifference as to what was to happen to the estate after their respective deaths Under this compromise these two ladies got all the rights they had under Hindu law without sacrificing an iota of their property and then they agreed that after their death the plaintiffs in equal shares and after them their heirs shall be the owners of the estate of Chiranji Lal It did not matter in the least to the two ladies what was to happen to the estate after their deaths and they were quite willing to let this estate go to the plaintiffs in the suit though one of them was a remote reversioner The compromise therefore was made in the interest of the actual parties to the suit in complete disregard of the interests of the ultimate reversioners The widows undoubtedly acted with reasonableness and pru dence so far as their personal interest was concerned but further than that they did not see The claim of the two plaintiffs in Suit No 120 of 1916 was adverse to the inter est of the 1 1922 49 IA 342 2 809 reversion as they were claiming as legatees under the will The widows while entering into the compromise safeguarded their personal rights only and thus in entering into it they only represented themselves and not the estate or the rever sioners and surrendered nothing out of their rights and it cannot be said that in the true sense of the term it was a bona fide settlement of disputed rights where each party gave up something of its own rights to the other The plain tiffs got an admission from the widows in regard to the future succession of the estate that after their deaths they would succeed though they were not heirs in accordance with Hindu law By this admission the widows lost nothing what soever Those who lost were the ultimate reversioners and their interest was not in the least either considered or safeguarded In these circumstances it seems to us that the compromise cannot be held to be a bona fide settlement or family arrangement of disputed rights and was entered into by Mohan Kuer for her personal advantage and of the advan tage of Khem Kuer The present case is analogous to the decision of the Privy Council in Imrit Konwur vs Roop Narain Singh 1 There in a dispute between a person claiming to be an adopted son of the previous owner and the widow and her daughters who would have title after her the widow gave up her daughters rights in consideration of her receiving practically unimpaired what she could Their Lordships held that such a compromise could not stand as indeed it was not a compromise at all The learned Attorney General laid considerable emphasis on the decision of their Lordships of the Privy Council in Mata Prasad vs Nageshar Sahai 2 In that case the widow admitted the right of the reversioner under Act I of 1869 and agreed that succession will be governed by that Act The reversioner agreed to let her remain in possession and undertook that he would not alienate the property during that period The widow in that case was not constituted a full owner under Hindu law and she did not get her full rights 1 2 1925 52 IA393 810 under the compromise but as a matter of concession was allowed to remain in possession by the reversioner and as a matter of fact she sacrificed her rights to a considerable extent and did not act for her personal benefit at all except to the limited extent mentioned above In the cir cumstances of that case it was held that the compromise was a bona fide family settlement of disputed claims and was binding on the reversioners In the present case the devolu tion of the property after the death of Chiranji Lal was agreed to be in accordance with Hindu law and that being so the further devolution of the property after their death was no concern of the widows That was a matter of law The ultimate reversioners were stabbed in the back by the widow and such a compromise cannot be held to be binding on them A large number of cases were cited before us in which com promises under different circumstances had been held to be binding on the reversioners We consider that it is wholly unnecessary to examine those cases because the circum stances in which those compromises were made were quite different from the circumstances of the present case Considering all the materials which were placed before us we hold in agreement with the High Court that the compromise in the present case was neither prudent nor reasonable so far as it affected the interests of the estate and that of the ultimate reversioners and that being so is not binding on the plaintiffs For the reasons given above this appeal fails and is dismissed with costs Civil Appeal No 30 of 1951 This is an appeal by one of the transferees and arises out of the same suit out of which arises appeal No 29 of 1951 On the 13th June 1928 Shah Madho Lal and his son Shah Madhusudan Lal executed a sale deed Exhibit M 13 in favour of the appellant for the sum of Rs 21000 The transferee while adopting the defence taken by Madho Lal and by the heirs of Jwala Prasad pleaded that he was protected by the provisions of section 41 of the Transfer of Property Act 811 The High Court held that in cases where a person who has allowed another to occupy the position of an ostensible owner has a limited estate the rule of section 41 applies only during the lifetime of the limited owner and is not available to protect transferees against the claim of the reversioners A number of authorities were cited in support of this proposition The learned counsel for the appellant was unable to displace this proposition It is quite clear that the plea of section 41 of the Transfer of Property Act could only be raised against Mohan Kuer or her legal repre sentatives but is not available against the plaintiff Mohan Kuer having acquired a limited life estate This contention is therefore rejected The learned counsel then contended that the plaintiff Prem Kuer had relinquished her rights in favour of her sons in 1933 and she had no locus standi to maintain the suit or to appeal against the decision of the trial judge as the title to the estate had vested in her sons The plaintiffs had alleged in para 13 of the plaint that the relinquish ment was inoperative and void The defendants did not dis pute that allegation and it is not open to them at this stage to take up the plea which they could have taken in the trial court or in the appellate court Even in the grounds of appeal to this court the point was not taken If the point was taken at the proper stage the plaintiffs might well have proved that the relinquishment was no longer operative or they might have amended the plaint and put it in proper form The learned counsel adopted the arguments of the learned Attorney General in the other appeal and for the reasons given therein these points are decided against him This appeal therefore also fails and is dismissed with costs Appeals dismissed Agent for the appellant in Civil Appeal No 29 of 1951 section section Shukla Agent for the appellant in Civil Appeal No 80 of 195 IP C Agarwal Agent for the respondents in both Rajinder Narain

The first petitioner who had migrated to West Pakistan applied to the High Court of Madhya Bharat for a writ of abeas corpus for directions to produce petitioners 2 and 3 his minor children before the Court on the allegation that they were wrongfully confined and upon the dismissal of the said application applied to the District Judge of Ratlam under the Guardian and Wards Act for his appointment as guardian of the person and property of the said minors The District judge rejected he application and appointed the second respondent as such Guardian The first petitioner appealed to the High Court against the said order of the District judge but that appeal was Dismissed He applied for special leave to appeal to this Court but that application was also rejected Thereafter the first Petitioner as natural guardian of petitioners 2 and 3 filed the present petition under article 32 of the Constitution His casee in substance was that the interest of the second respondent was adverse to that of the minors that he had misappropriated their property and that the first respondent the State of Madhya Bharat was bound to take steps to protect the property of the minors which it had failed to do and had thus rendered itself liable to make good the loss sustained by the minors in consequence Held that the petition was wholly misconceived and must be dismissed The Court can exercise jurisdiction under article 32 of the Constitution only in enforcement of the fundamental rights guaranteed by Part III of the Constitution Where on account of the decision of a court of competent jurisdiction the right alleged by the petitioner does not exist and therefore its infringement cannot arise this Court cannot entertain a petition under that Article for protection of the alleged right A claim as to denial of equality before the law or the equal protection of the laws can be made against executive action or against legislative process but not against the decision of a court of competent jurisdiction Nor can an order of this Court rejecting an application for special leave under article 136 of the Constitution be circumvented by an application for a writ under article 32

ON Criminal Appeal No 137 of 1957 Appeal from the judgment and order dated October 31 1956 of the Madras High Court in Criminal Appeal No 201956 B Dadachanji C B Aggarwala section N Andley J Rameshwar Nath and P L Vohra for the appellant R Ganapathy Iyer and T M Sen for the respondent C K Daphtary Solicitor General of India H J Umrigar_ and T M Sen for the Intervener Union of India 1960 February 26 The Judgment of the Court was delivered by IMAM J This is an appeal on a certificate granted by the High Court of Madras The appellant was tried by the Special Judge of Tiruchirappalli under section 165A of the Indian Penal Code for attempting to bribe Mr Kaliyappan Deputy Superintendent of Police of Ramanathapuram The Special Judge came to the conclusion that the charge framed against the accused had not been established He accordingly acquitted the appellant Against the order of acquittal the State of Madras appealed to the High Court of Madras under section 417 of the Code of Criminal Procedure The High Court came to the conclusion that the evidence established that the appellant had attempted to bribe the aforesaid Deputy Superintendent of Police It accordingly convicted the appellant under section 165A Indian Penal Code and sentenced him to 6 month s rigorous imprisonment and a fine of Rs 1000 in default to undergo further rigorous imprisonment for 6 months According to the prosecution case the appellant attempted to bribe Mr Kaliyappan the Deputy Superintendent of Police by offering him a Bum of money contained in an envelope at his bungalow in the morning of June 14 1954 In order to appreciate the circumstances in which the bribe was offered reference to certain events which led to the incident 118 on June 14 at the bungalow of the Deputy Superintendent of Police becomes necessary In village Irwadi there are two factions one headed by the appellant and his brother and the other headed by the village munsif On June 3 1954 two complaints reached the Keelakarai Police Station one by the appellant against the village munsif and the other by the village munsif against the appellant According to the appellant on June 3 1954 after prayers in the mosque the village munsif had abused him and had attempted to murder him with a knife Some persons intervened but he managed to escape but was chased by the village munsif to his house The version of the village munsif was that he was busy that day preparing the receipt for the release of the appellant s impounded cattle when the latter abused him beat him with his shoe and kicked him in the stomach causing minor injuries On June 5 1954 the appellant met Mr Kaliyappan at the Central Bus stand at Madurai and handed over to him a petition Ext P 1 in which he complained against the village munsif Mr Kalivappan made ail endorsement on this petition directing the Inspector of Ramanathapuram Circle to send for both the parties and warn them against doing acts which would create a breach of the peace in the village and that this petition was not to be sent to the Sub Inspector PW 8 as it was alleged that he was siding against the appellant On June 12 1954 Mr Kaliyappan sent a memo Ext P 2 to the Inspector of Ramanathapuram Circle directing him to take steps to see that peace was preserved in the village This Police Officer Was also asked to take action against the offenders with respect to whom there was evidence in connection with the occurrence of June 3 1954 Mr Kaliyappan also in view of the situation had directed this Police Officer to see whether steps should not be taken to seize the revolver of the appellant s brother Rashid for which he had a licence The Inspector of Ramanathapuram Circle thereafter prepared a detailed report Ext P 7 of the result of his enquiry and handed it over to Mr Kali yappan on June 13 1954 On the night of June 13 1954 at about 10 pm the appellant went to the 119 bungalow of Mr Kaliyappan the Deputy Superintendent of Police at Ramanathapuram and complained against the Inspector of Police of Ramanathapuram Circle and the Sub Inspector requesting the s Deputy Superintendent of Police to look into the matter personally and not to leave the investigation exclusively in the hands of the Inspector Mr Kaliyappan told the appellant that he knew nothing about the case and could not say or do anything off hand and that the appellant should see him about a week later by which time he would have perused the record and would be in a position to look into his grievances According to the appellant however the Deputy Superintendent of Police had asked him to come to him next morning On June 14 1954 according to the prosecution the appellant went to Mr Kaliyappan s bungalow at about 7 15 am who was at that time looking into certain papers He was informed that a visitor bad come to see him The appellant accordingly entered his office room when he again complained to the Deputy Superintendent of Police against the village munsif At the same time he presented to this Police Officer a closed envelope Mr Kaliyappan thought that the envelope contained a petition but on opening it he found that it contained currency notes He was annoyed at the conduct of the appellant He threw the envelope at the appellant s face but the envelope fell down on the floor and the appellant picked it up The Deputy Superintendent of Police called his office orderly but as there was no response he went out of the office room and told his milk maid to get the camp clerk By that time the orderly turned up The appellant had in the meantime remained in the office room and on the appearance of the orderly Mr Kaliyappan asked the appellant to produce the envelope which he had thrown down and which the appellant had picked up The appellant after taking out of his pocket some currency notes placed them on the table without the envelope Subsequently during the police investigation torn bits of paper were collected from near the office window and it is alleged that those torn bits of paper 120 were the pieces of the envelope in which the currency notes were presented to Mr Kaliyappan Thereafter Mr Kaliyappan asked his orderly to put office rubber stamp date seal on the notes and the same was done By that time the camp clerk PW 2 had arrived Mr Kaliyappan asked the camp clerk to note down the numbers of the currency notes which he did The list so prepared is Ext Mr Kaliappan then dictated the memo P 5 to the local Sub Magistrate informing the latter that the appellant bad offered him Rs 500 in currency notes requesting him to drop action registered against the appellant at Keelakarai Police Station Mr Kaliyappan informed the Magistrate in this connection that he had seized the currency notes and his office rubber stamp seal had been placed on them and that he would be grateful to the Magistrate if he would come to his office and record the statement of the appellant whom he had detained in his office The case of the appellant as would appear from his statement to the Special Judge was that he had been to Mr Kaliyappan the Deputy Superintendent of Police in the night of June 13 1954 and in the morning at 7 15 am on June 141954 He had gone to Mr Kaliyappan s bungalow in the morning of June 14 as he bad been requested to do so He had told the Deputy Superintendent of Police that he had been humiliated by his Police Officers who had arrested him and had searched his house and that Mr Kaliyappan should redress his grievances Mr Kaliyappan showed him scant courtesy and insulted him upon which the appellant told Mr Kaliyappan not to insult him and that he should tell the appellant whether he would redress the grievances of the appellant or not and that if he was not prepared to redress the grievances the appellant would take the matter to the higher authorities On this Mr Kaliyappan got up from his chair and enquired of the appellant what could he do by going to the higher authorities and threatened to beat the appellant The appellant also got up and said something to him upon which Mr Kaliyappan called out for his orderly The orderly came and was told by Mr Kaliyappan 121 that he was going to be beaten by the appellant and therefore he should catch hold of the appellant which the orderly did Then Mr Kaliyappan told the orderly that there was money in the appellant s pocket and that he should remove it The orderly accordingly removed the money from the appellant s pocket and gave it to Mr Kaliyappan The money in his pocket was Rs 500 Mr Kaliyappan then directed his orderly to put his seal on the notes The Special Judge gave various reasons for not accepting the uncorroborated testimony of Mr Kaliyappan and held that the presumption of the innocence of the accused had not been displaced by his solitary testimony The High Court did not consider the grounds given by the Special Judge for discarding the testimony of Mr Kaliyappan as at all justified and was of the opinion that the Special Judge had taken a perverse view of his evidence and of the other evidence in the case In the main three points were urged in support of the plea that the conviction of the appellant should be set aside The first point urged was that the provisions of section 422 of the Code of Criminal Procedure had riot been complied with Accordingly the High Court judgment setting aside the acquittal of the appellant was vitiated The second point urged was that there had been violation of the provisions of article 203 of the Constitution which vitiated the conviction The third point urged was that the appellant having been acquitted by the Special Judge the High Court should not have set aside the acquittal unless there were compelling reasons The several grounds stated by the Special Judge in distrusting the evidence of Mr Kaliyappan had not been specifically considered by the High Court and without those grounds being displaced the High Court erred in setting aside the order of acquittal passed by the Special Judge Lastly it was urged that in the circum stances of the present case the sentence passed by the High Court was severe The circumstances relied upon in this connection will be stated in due course Regarding the first point a few facts have to be stated The State s appeal against the acquittal of 122 the appellant was admitted by the High Court on February 22 1956 Appearince on behalf of the appellant was filed on February 24 1956 The advocates for the appellant ere Ms V L Ethiraj and section M Cassim One Mr R Santanamn an advocate who worked in the office of the partnership of Ms V L Ethiraj V T Rangaswami Ayyangar wrote to the High Court office on February 27 1956 requesting that summons need not be issued and compliance with rule 240 A Criminal Rules of Practice might be dispensed with in view of the appearance for the appellant having been filed on February 24 1956 As appearance had been entered on behalf of the appellant even before the issue of notice to him notice under section 422 of the Code of Criminal Procedure was issued by the Court on March 5 1956 to Ms Ethiraj and Cassim advocates for the appellant on the records of the High Court After the appeal was ready for hearing the usual intimation under rule 240A was also sent on September 4 1956 to the Special Judge Tiruchirappalli for being communicated to the appellant as it was the practice of the High Court not to dispense with altogether the issue of such intimation under any circumstance Mr Ethiraj appeared for the appellant at the hearing of the appeal and made submissions on questions of fact as well as on questions of law before the learned Judge of the High Court who heard the appeal It was contended for the appellant that the of the appeal filed by the State against his acquittal because if the acquittal was set aside and the appellant was sentenced serious consequences would arise As to the second submission article 20 3 of the Constitution states No person accused of any offence shall be compelled to be a witness against himself Before this provision of the Constitution comes into play two facts have to be established 1 that the individual concerned was a person accused of an offence and 2 that he was compelled to be a witness against himself If only one of these facts and not the other is established the requirements of article 203 will not be fulfilled It was however urged that on the facts the appellant must be regarded as a person who was accused of an offence at the time that Mr Kaliyappan asked him to produce the money The circumstances also showed that the appellant did so on compulsion He was at the time within the power of the Deputy Superintendent of Police and was compelled to comply with his direction Mr Kaliyappan being of the rank of a Deputy Superintendent of Police could himself make the investigation The offence had been committed in his presence and the appellant was in the situation of an arrested person Reliance was placed upon the decision of this Court in M P Sharma vs Satish Chandra and Others 1 in support of the proposition that a compelled production of incriminating document by a person during police investigation is testimonial compulsion within the meaning of article 20 3 of the Constitution In that case this Court had observed at p 1088 Indeed every positive volitional act which furnishes evidence is testimony and testimonial 1 1954 SCR 1077 126 compulsion connotes coercion which procures the positive volitional evidentiary acts of the person as opposed to the negative attitude of silence or submission on his part Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the court room The phrase used in article 20 3 is to be a witness and not to appear as a witness It follows that the protection afforded to an accused in so far as it is related to the phrase to be a witness is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution Whether it is available to other persons in other situations does not call for decision in this case Considered in this light the guarantee under article 203 would be available in the present cases these petitioners against whom a First Information Report has been recorded as accused therein It would extend to any compulsory process for production of evidentiary documents which are reasonably likely to support a prosecution against them These observations were unnecessary in Sharma s case having regard to the fact that this Court held that the seizure of documents on a search warrant was not unconstitutional as that would not amount to a compulsory production of incriminating evidence In the present case even on what was stated in Sharma s case there was no formal accusation against the appellant relating to the commission of an offence Mr Kaliyappan had clearly stated that he was not doing any investigation It does not appear from his evidence that he had even accused the appellant of having committed any offence Even if it were to be assumed that the appellant was a person accused of an offence the circumstances do not establish that he was compelled to produce the money which he had on his person No doubt he was asked to do so It 127 was however within his power to refuse to comply with Mr Kaliyappan s request In our opinion the facts established in the present case show that the appellant was not compelled to produce the currency notes and therefore do not attract the provisions of article 203 of the Constitution As to the 3rd point we have read the evidence in the case the judgments of the Special Judge and of the High Court and have no hesitation in saying that the High Court s view that the judgment of the Special Judge was perverse is correct This is an appeal on a certificate and the findings on questions of fact are not concurrent Accordingly we can form our own conclusions irrespective of the grounds given by the High Court for believing that the grounds given by the Special Judge for distrusting Kaliyappan s evidence were perverse Those grounds have however been placed before us and after a careful examination of them we have come to the conclusion that the grounds given by the Special Judge for distrusting Mr Kaliyappan s evidence are perverse It was suggested that the documentary evidence and the manner in which Mr Kaliyappan gave his evidence indicated that in the quarrel between the village munsif and the appellant he was siding with the village munsif Assuming that to be so though we make it quite clear that we do not hold it to be so it is impossible to believe that Mr Kaliyappan would have concocted a false case of an attempt made by the appellant to bribe him if he had not lone so He could have quite easily told the appellant to leave his bungalow without concocting a false case against him If he was siding with the village munsif he could have as easily got his subordinate Police Officers to report that the village munsif s story was true and that the appellant should be prosecuted There seems to be no occasion for him to have made an elaborate story of an attempt on the part of the appellant to bribe him when in fact the appellant had done nothing of the kind A great deal of emphasis was laid on the fact that in the information which Mr Kaliyappan sent to the Magistrate he had made no mention of money being offered to him in an 128 envelope and that the torn bits of paper found outside the window of Mr Kaliyappan s office were not proved to be part of the envelope in which the bribe had been offered and that it was also not at all clear that the Rs 500 found on the person of the appellant were actually the currency notes offered to Mr Kaliyappan as bribe It seems to us however that too much emphasis has been laid on all this Mr Kaliyappan had certainly alleged in his information to the Magistrate that the appellant had offered him a bribe of Rs 500 Whether that was the sum in the envelope or whether it had been offered in an envelope was beside the point The important question for consideration was whether Mr Kaliyappan had been offered a bribe by the appellant For that purpose it was a relevant circumstance that in fact on his person the appellant had a sum of Rs 500 and that if Mr Kaliyappan s story was true that it was offered in an envelope no envelope was produced with the currency notes of Rs 500 which were placed on the table On the other hand torn bits of paper which could form an envelope were found outside the Window of the room where the bribe had been offered It seems to us on a careful reading of Mr Kaliyappan s evidence that he had substantially told the truth and that there was no real reason for him to concoct a false case against the appellant Having regard to the circumstances in which the bribe was offered corroboration of his evidence in that respect could hardly be expected His conduct however throughout showed that he had acted in a bona fide manner After a careful consideration of his evidence and of the circumstances established in the case we entirely agree with the High Court that there was no real ground upon which his evidencc could be disbelieved In the circumstances the High Court was entirely justified in acting upon it and setting aside the order of acquittal made by the Special Judge Lastly on the question of sentence it may be mentioned at once that on the second day of the hearing of this appeal learned Advocate for the appellant stated that his client threw himself at the mercy of Court and apologized for what had happened The 129 learned Advocate further urged that the appellant though an Indian citizen was carrying on business in Burma and had a visa from the Burmese Government for permanent residence and that unless he returned to Burma by the 2nd of March by would lose the benefit of the visa and would no longer be allowed to reside in Burma as a permanent resident Conse quently he would lose his entire business and property in that country which Would be a severe penalty if his sentence of imprisonment was upheld It is also pointed out that on two occasions this Court on this very ground on the appellant furnishing security and giving an undertaking to return to this country had allowed him to go to Burma in order that he might not contravene the conditions of his visa It was further pointed out that the incident took place in June 1954 some 5 years and eight months ago Even a substantial fine in lieu of the sentence of imprisonment would be sufficient punishment and a deterrent to the appellant We have given the matter of sentence our anxious consideration It seems prima facie that a sentence of 6 months imprisonment and fine of Rs 1000 could not be said to be severe for an offence of the kind established against the appellant The circumstances mentioned above if correct in plea of mitigation of sentence may attract attention but so far as a court of law is concerned judicially it is impossible to say that the sentence imposed by the High Court is severe in a case where there had been an attempt to corrupt a responsible public servant The appeal is accordingly dismissed Appeal dismissed

The appellant was convicted under section 304 Part I of the Indian Penal Code and sentenced to imprisonment for life by the trial Court His appeal to the High Court was admitted only on the question of sentence and at the hearing the sentence was reduced to 10 years imprisonment On appeal by special leave the appellant contended that his appeal in the High Court could not in law be admitted on the question of sentence only and that he was entitled to be heard on the merits of the case also Held that having regard to the provisions of the Code of Criminal Procedure while an Appellate Court had power to dismiss an appeal summarily if it considered that there was no sufficient ground for interfering it had no power to direct the appeal to be heard on the question of sentence only The Appellate Court after hearing the appeal had the power in finally disposing of the appeal to reduce the sentence but was not entitled to direct the appeal to be admitted only on the question of sentence The appellant was entitled to have his appeal heard on the merits in the High Court The King Emperor vs Dahu Raut 1935 LR 62 IA 129 followed Nafar Sheikh vs Emperor Cal 606 Gaya Singh vs King Emperor Pat 254 and Sudhir Kumar Neogi and Another vs Emperor AIR 1942 Pat 46 approved Bai Dhankor vs Emperor not appli cable

Appeal No 404 of 1958 Appeal by special leave from the decision dated March 10 1958 of the Industrial Tribunal Rajkot in Adjudication Case No 67 of 1955 M C Setalvad Attorney General for India R J Kolah section N Andley J B Dadachanji Rameshwar Nath and P L Vohra for the appellants Janardan Sharma for respondent No 2 1960 March 3 The Judgment of the Court was delivered by GAJENDRAGADKAR J Can a registered trade union representing a minority of workmen governed by an award give notice to the other party intimating its intention to terminate the award under section 196 of the XIV of 1947 hereinafter called the Act That is the short question which arises for decision in the present appeal In answering the said question it would be necessary to examine the scheme of the Act and to ascertain the true meaning and effect of section 196 on its fair and reasonable construction The controversy thus raised undoubtedly lies within a narrow compass but before addressing ourselves to the merits of the dispute it is necessary to state the material facts which led to the present proceedings The present appeal has been brought before this Court by the Associated Cement Companies Limited hereinafter called the appellant against their workman hereinafter called the respondents and it arises from an industrial dispute between them which was referred for adjudication to the Industrial Tribunal for the State of Saurashtra by the Saurashtra Government under section 101 of the Act Several items of demand presented by the respondents constituted the subject matter of the reference When the tribunal began its proceedings the appellant raised four preli 159 minary objections against the competence of the reference itself The tribunal heard parties on these preliminary objections and by its interlocutory judgment delivered on March 10 1958 it has found against the appellant on all the points In the result it set down the reference for further hearing on the merits It is against this interlocutory judgment and order that the appellant has come to this Court by special leave Out of the four points urged by the appellant as preliminary objections we are concerned with only one in the present appeal and that relates to the incompetence of the reference on the ground that the award in question by which the parties were bound has not been duly terminated under section 196 of the Act inasmuch as the union which purported to terminate the said award represents only a minority of workmen bound by it The circumstances under which this contention was raised must now be stated in some detail The appellant is a limited company and owns and runs a number of cement factories spread out in different States in India as well as in Pakistan It has a factory at Porbandar in Saurashtra The factory is known as the Porbandar Cement Works An industrial dispute arose between the appellant and the respondents in 1949 and it was referred for adjudication to the industrial tribunal on March 22 1949 This reference ended in an award made on September 13 1949 Thereafter the said award was terminated by the appellant and on disputes arising between it and the respondents another reference was made to the same tribunal for adjudication of the said disputes A second award was made on July 24 1951 by which the earlier award with slight modifications was ordered to continue in operation In the proceedings in respect of both the references the appellant s workmen were represented by their Union called Kamdar Mandal Cement Works Porbandar It appears that the registration of the said union was cancelled on July 21954 and that led to the formation of two unions of the appellant s workmen the Cement Kamdar Mandal which was registered on 160 July 7 1954 and the Cement Employees Union which was registered on September 18 1954 The Cement Kamdar Mandal gave notice to the appellant s manager on September 23 1954 purporting to terminate the first award pronounced on September 13 1949 at the expiration of two months notice from the date of the said communication By another letter written on December 201954 the same union purported to terminate the second award pronounced on July 24 1951 in a similar manner On November 22 1954 the said Mandal presented fresh demands most of which were covered by the two previous awards The said demands were referred to the Conciliation Officer for conciliation but the efforts at conciliation failed and on receiving a failure report from the officer the Saurashtra Government made the present reference purporting to exercise its jurisdiction under section 101c of the Act The appellant s case is that the Cement kamdar Mandal was not authorised to terminate either of the two awards under section 196 of the Act that the second award is thus still in operation and so the reference is invalid Meanwhile it appears that the Cement Employees Union which represents the majority of the appellant s workmen at Porbandar instead of giving notice of termination under section 196 raised disputes with the appellant and the same were referred to the Conciliation Officer Efforts at conciliation having failed the conciliation officer made a failure report to the Government of Saurashtra the Saurashtra Government however did not refer the said dispute for adjudication In the present proceedings this Union has been impleaded and it has supported the demands made by the Cement Kamdar Mandal in other words notwithstanding the rivalry between the two Unions the demands made by the minority union were supported by the majority union and in fact in the appeal before us it is the latter union that has appeared to contest the appeal The tribunal has dealt with the point of law raised by the appellant under section 196 on the assumption that the Cement Kamdar Mandal which purported to terminate the awards under the said section represents the minority 161 of the workmen employed at Porbandar and we propose to deal with the point raised in the appeal on the same assumption The main sections which fall to be considered in dealing with the dispute are sections 18 and 19 as they stood in 1954 Section 18 provides inter alia that an award which has become enforceable shall be binding on a all parties to the industrial dispute b all other parties summoned to appear in the proceedings as parties to the dispute unless the Board or tribunal as the case may be records the opinion that they were so summoned without proper cause c where a party referred to in cl a or cl b is an employer his heirs successors or assigns in respect of the establishment to which the dispute relates and d where a party referred to in cl a or cl 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 became employed in that establishment or part It is thus clear that though an industrial dispute may be raised by a group of workmen who may not represent all or even the majority of workmen still if the said dispute is referred to the industrial tribunal for adjudication and an award is made it binds not only the parties to the dispute or other parties summoned to appear but all persons who were employed in the establishment or who would be employed in future are also governed by the award in other words the effect of section 18 is that an award properly made by an industrial tribunal governs the employer and all those who represent him under section 18c and the employees who are parties to the dispute and all those who are included in section 18b and d Section 19 prescribes the period of operation of settlements and awards Section 193 provides that an award shall subject to the provisions of this section remain in operation for a period of one year This is subject to the provisos to suubs 3 as well as to sub section 4 but we are not concerned with the said provisions Section 196 provides that notwithstanding the expiry of the period of operation under 21 162 sub section 3 the award shall continue to be binding on the parties until a period of two months has elapsed from the date on which the notice is given by any party bound by the award to the other party or parties intimating its intention to terminate the award The effect of this sub section is that unless the award is duly terminated as provided by it shall continue to be binding notwithstanding the expiration of the period prescribed by sub section This position is not in dispute The dispute between the parties centers round the question as to who can issue the notice terminating the award on behalf of workmen who are bound by the award as a result of section 18 of the Act What the sub section requires is that a notice shall be given by any party bound by the award to the other party or parties To whom the notice should be given may not present much difficulty Where the award is sought to be terminated on behalf of the employees the notice has to be given to the employer and that is the party entitled to receive notice Then as to the parties to whom also notices are required to be given it may perhaps be that the parties intended are those joined under section 10 sub section 5 or under section 18 sub section 2 or are otherwise parties to the dispute but with that aspect of the question we are not concerned in the present appeal because notice has been given to the appellant and all the workmen concerned in the dispute have appeared before the tribunal through the two respective unions The question with which we are concerned and which is not easy to determine is the true interpretation of the word any party bound by the award We have already noticed the effect of section 18 and we have seen how wide is the circle of persons who are bound by the award as a result of the said section Literally construed any party bound by the award may mean even a single employee who is bound by the award and on this literal construction even one dissatisfied employee may be entitled to give notice terminating the award On the other hand it may be possible to contend that any party in the context must mean a party that represents the majority of the persons bound by the award 163 Terminating the award is a serious step and such a step can be taken by a party only if it can claim to represent the will of the majority on that point It is for this construction that the appellant contends before us In construing this provision it would be relevant to remember that an industrial dispute as defined by section 2k of the Act means any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen which is connected with the employment or non employment or the terms of employment or with the conditions of labour of any person This definition emphatically brings out the essential characteristics of the dispute with which the Act purports to deal The disputes must relate to the terms of employment or with the conditions of labour and they must arise inter alia between workmen and their employer Ordinarily an individual dispute which is not sponsored by the union or is otherwise not supported by any group of workmen is not regarded as an industrial dispute for the purposes of the Act A provision like that contained in section 33A is of course an exception to this rule The basis of industrial adjudication recognised by the province of the Act clearly appears to be that disputes between employers and their employees would be governed by the Act where such disputes have assumed the character of an industrial dispute An element of collective bargaining which is the essential feature of modern trade union movement is necessarily involved in industrial adjudication That is why industrial courts deal with disputes in relation to individual cases only where such disputes assume the character of an industrial dispute by reason of the fact that they are sponsored by the union or have otherwise been taken up by a group or body of employees In The Central Provinces Trans port Services Limited vs Raghunath Gopal Patwardhan 1 this Court has observed that the preponderance of judicial opinion is clearly in favour of the view that an individual dispute cannot per se be an industrial dispute but may become one if taken up by a 1 164 trade union or a number of persons These observations have been cited with approval by this Court in the case of The Newspapers Limited vs The State Industrial Tribunal U P Having regard to this aspect of the matter it would be difficult to hold that any party bound by the award can include an individual workman though speaking literally he is a party bound by the award In our opinion there fore the said expression cannot include an individual workman We oughtto add that this position is fairly conceded by Sharma for the respondents That takes us tothe question as to whether the expression any party bound by the award must mean a union representing the majority of the workmen bound by it or a group of workmen constituting such majority acting otherwise than through the union The expression any party bound by the award obviously refers to and includes all persons bound by the award under section 18 The learned Attorney General has urged before us that we should construe section 196 so as to preclude a minority of workmen bound by the award from disturbing the smooth working of the award and thereby creating an industrial dispute When an award is made it binds the parties for the statutory period under section 193 and even after the expiration of the said period it continues to be binding on the parties under section 196 unless it is duly terminated The policy of the Act therefore appears to be that the smooth working of the award even after the prescribed statutory period should not be disturbed unless the majority of the workmen bound by it feel that it should be terminated and fresh demands should be made If a minority of workmen or a minority union is allowed to terminate the award it would lead to the anomalous result that despite the willingness of the majority of workmen to abide by the award the minority can create disturbance and raise an industrial dispute and that cannot be within the contemplation of the Legislature when it enacted section 196 of the Act That in substance is the argument urged before us thus presented the argument no doubt appears prima facie attractive 1 165 but in our opinion it would be unreasonable to accept this construction and impose the limitation of the majority vote in the matter of the termination of the award The effect of imposing such a limitation would in our opinion seriously prejudice the interests of the employees It is well known that the trade union movement in this country cannot yet claim to cover all employees engaged in several branches of industry Membership of the important trade unions no doubt shows an appreciable increase and progress but the stage when trade unions can claim to have covered all employees or even a majority of them has still not been reached If the majority rule for which the appellant contends is accepted and section 196 is accordingly construed termination of the award would we apprehend become very difficult if not impossible in a very large number of cases It is in this context that the effect of section 18 has to be borne in mind As we have already indicated the class of employees bound by the award under section 18 is very much wider than the parties to the industrial dispute in which the award is made the said class includes not only all the persons employed in the establishment at the date of the award but it covers even the subsequent employees in the said establishment It is therefore obvious that if the majority rule is adopted very few awards if any could be terminated because very few unions would be able to claim a majority of members on their rolls and in their present stage of Organization in very few cases would a majority of workmen be able to meet decide and act together otherwise than through their unions That is why the majority rule would very seriously prejudice the rights of employees to terminate awards when they feel that they need to be modified or changed That is one aspect of the matter which cannot be ignored in construing the material words in section 196 There is another aspect of the question which is also relevant and which in our opinion is against the construction suggested by the appellant We have already noticed that an industrial dispute can be raised by a group of workmen or by a union even 166 though neither of them represent the majority of the workmen concerned in other words the majority rule on which the appellant s construction of section 196 is based is inapplicable in the matter of the reference of an Industrial dispute under section 10 of the Act Even a minority group of workmen can make a demand and thereby raise an industrial dispute which in a proper case would be referred for adjudication under section 10 It is true that an award pronounced on such reference would bind all the employees under section 18 but logically if an industrial dispute can be raised by a minority of workmen or by a minority union why should it not be open to a minority of workmen or a minority union to terminate the award which is passed on reference made at their instance The anomaly to which the learned Attorney General refers has no practical significance If the majority of workmen bound by the award desire that the award should continue and needs no modification they may come to an agreement in that behalf with their employer and adopt such course as may be permissible under the Act to make such agreement effective However that may be we are satisfied that both logic and fairplay would justify the conclusion that it is open to a minority of workmen or a minority union to terminate the award by which they along with other employees are bound just as much as it is open to hem to raise an industrial dispute under the Act hat is the view taken by the industrial tribunal in he present case and we see no reason to differ from it It appears that when this question was argued before the tribunal the appellant strongly relied on rule 83 framed by the Government of Bombay under section 38 of the Act and it was urged that the said rule is consistent with the construction sought to be placed by the appellant on section 196 It is conceded that at he relevant time this rule was not in force and so it s strictly not applicable to the present proceedings hat being so we do not propose to consider the argument based on the said rule and to examine the question as to whether the rule really supports the appellant s construction and if yes whether it would be valid The question raised before us must obvi 167 ously be decided on a fair and reasonable construction of section 196 itself and the rule in question even if applicable would not be material in that behalf We accordingly hold that on a fair and reasonable construction of section 196 the true position is that though the expression any party bound by the award refers to all workmen bound by the award notice to terminate the said award can be given not by an individual workman but by a group of workmen acting collectively either through their union or otherwise and it is not necessary that such a group or the union through which it acts should represent the majority of workmen bound by the award In the result the appeal fails and is dismissed with costs Appeal dismissed

A relinquishment by a Hindu widow of her estate in favour of the next reversioner and a stranger in equal moieties is not a valid surrender under Hindu law A valid surrender cannot be made in favour of anybody except the next heir of the husband Mummareddi Nagireddi vs Pitti Durairaja Naidu 1951 SCR 655 followed It is competent to a Hindu widow to enter into a compro mise in the course of the suit bona fide in the interest of the estate and not for her personal advantage and a decree passed on such a compromise will be binding on the rever sioner The question whether a compromise is a bona fide settlement of a disputed right between the parties depends on the substance of the transaction and in order that it may bind the estate it should be a prudent and reasonable act On the facts their Lordships held agreeing with the High Court that the compromise in the present case was neither prudent nor reasonable so far as it affected the interests of the estate and of the ultimate reversioners and that it was not therefore binding on the reversioners Ramsumaran Prasad vs Shyam Kumari 49 IA 342 Mohendra Nath Biswas vs Shamsunnessa Khatun 21 CLJ 157 and Imrit Kunwar vs Roop Narain Singh fol lowed Mata Prasad vs Nageshar Sahai 52 IA 393 distin guished

Appeal No 481 of 1958 Appeal by special leave from the Award dated June 29 1957 of the State Industrial Tribunal UP Allahabad in Ref No 98 of 1956 MC Setalvad Attorney General for India section N Andley J B Dadachanji Rameshuar Nath and P L Vohra for the appellants A D Mathur for respondent No 1 G C Mathur and C P Lat for respondent No 2 G N Dikshit and C P Lal for the intervener March 8 The Judgment of the Court was delivered by WANCHOO J This is an appeal by special leave against the order of the Industrial Tribunal Allahabad The appellant is the U P Electric Supply Co Ltd Lucknow hereinafter called the company It appears that the company used to employ Messrs s M Choudhary hereinafter referred to as the contractors as its contractors for doing certain work for it The contractors in their turn used to employ a number of persons to carry out the work which they had taken on contract A dispute arose between the contractors and their workmen in 1956 and an application was made on June 6 1956 by the workmen before the conciliation board To this application both the company as well as the contractors were parties and four matters were referred by the workmen to the conciliation board namely i non grant of bonus for the years 1953 54 and 1954 55 ii nongrant of festival holidays iii non fixation of minimum wages of these workmen at par with the 191 workmen employed by the company and iv nonabolition of the contract system Efforts at conciliation failed and thereupon the Government of Uttar Pradesh made a reference to the Industrial Tribunal under the U P Industrial Disputes Act No XXVIII of 1947 hereinafter called the Act In this reference only three points were referred out of the four which were before the conciliation board namely those relating to bonus festival holidays and payment of wages to these workmen at par with the workmen of the company The fourth point which was raised before the conciliation board namely non abolition of the contract system was not referred The parties to this reference were two namely i the contractors and ii their workmen The appellant was not a party to this reference On August 13 1956 another notification was issued by the U P Government under sections 3 5 and 8 of the Act by which the company was impleaded as a party to the dispute referred by the notification of July 31 1956 It is remarkable however that the matters of dispute which were specified in the reference dated July 31 1956 were not amended as they could have been under the proviso to section 4 of the Act by adding the fourth point of dispute before the conciliation board namely the non abolition of the contract system When the matter came up before the industrial court it framed a number of issues and the first and most important issue ran thus Are the workmen concerned employees of the U P Electric Supply Co Ltd Lucknow or of Messrs section M Chaudhary contractors The main objection of the company was that the dispute if any was between the contractors and their employees and that there was no dispute between the company and its workmen It was further objected that there was no valid or legal order of the Government referring any dispute between the company and its workmen to the tribunal and therefore the tribunal had no jurisdiction On the merits it was urged that the workmen concerned were not the workmen of the company and there was no relationship of employer and employee between the company and these workmen and therefore the company could not be regarded 192 as a party to the dispute between the contractors and their workmen It is therefore clear that the main question which was considered by the tribunal was whether the workmen concerned were the workmen of the company or of the contractors As the tribunal itself says the crux of the whole case was whether the workmen concerned were the employees of the company The tribunal went into the evidence in this connection and came to the conclusion that these workmen were in fact and in reality the employees of the company The main contention on behalf of the company before us is that even assuming that the Government had power under section 5 read with cl 12 of G O No U 464 LLXXXVI B 257LL1954 dated July 14 1954 to implied the company as a party the main issue decided by the tribunal was not referred to it and the tribunal could only decide the three matters of dispute included in the order of reference of July 31 1956 Therefore in so far as the tribunal went beyond the three matters of dispute specified in the reference and decided the question whether the workmen concerned were in the employ of the company or of the contractors it was acting without jurisdiction as this matter was never referred to it We are of opinion that this contention must prevail As we have already pointed out there were four matters before the conciliation board including the question of non abolition of the contract system Further before the conciliation board not only the contractors but the company was also a party for obviously the question of non abolition of the contract system would necessitate the presence of the company as a party to the proceedings When however the Government referred the dispute to the tribunal on July 31 it did not include the fourth item which was before the conciliation board relating to the non abolition of the contract system among the matters in dispute It also did not include the company as one of the parties to the dispute for the reference order refers only to two parties to the dispute namely the contractors and their workmen On such a reference there could be no jurisdiction in 193 the tribunal to decide the question whether these workmen were the workmen of the company or of the contractors for such a question was not referred to the tribunal It is true that on August 13 1956 the company was impleaded as a party to the dispute referred by the notification of July 31 but the matters in dispute remained unmended and the question of non abolition of the contract system or the question whether these workmen were the employees of the company in fact and in reality was not included in the matters of dispute by amendment under the proviso to section 4 of the Act In these circumstances it is immaterial to consider whether the impleading of the company as a party on August 13 1956 was legal and valid or not Assuming that it was legal and valid the fact remains that issue No 1 set out above by us which is undoubtedly the crux of the question in this case was not referred to the tribunal at all and did not arise out of the three matters of dispute specified in the reference order of July 31 1956 In these circumstances the order of the tribunal by which it held that these workmen were the workmen of the company was beyond its jurisdiction The entire order of the tribunal is directed against the company and must therefore be set aside in whole as without jurisdiction and we need not express any opinion on the merits We therefore allow the appeal and set aside the order of the tribunal against the appellant In the circumstances we pass no order as to costs Appeal allowed

The appellant was tried by the Special judge Tiruchirappalli under section 165A of Indian Penal Code for attempting to bribe K a Deputy Superintendent of Police The prosecution case was that in connection with theinvestigation by the Inspector of Police of a case involving the appellant the latter went to K s bungalow and presented to him a closed envelope that when K found that it contained currency notes he threw it away which the appellant picked up that thereupon K asked the appellant to produce the currency notes and the appellant complied with the demand that K then gave information to a Magistrate about the attempt made by the appellant to offer him a bribe The Special judge acquitted the appellant On appeal the High Court accepted the prosecution case and convicted the accused In the High Court Counsel for the appellant entered appearance before notice of appeal under section 422 of the Code of Criminal Procedure was issued to the appellant and when the appeal was ready for hearing intimation was given under the rules to the Special judge to communicate to the appellant about the appeal filed against him The questions for determination were 1 whether the protection under article 203 of the Constitution of India had been violated by ask ing the accused to produce the currency notes and 2 whether the provisions of section 422 of the Code of Criminal Procedure had not been complied with because notice of the appeal had not been served on the appellant Held i that there was no contravention of article 203 as the appellant was not in the position of a person accused of an offence when he was asked to produce the currency notes and that in any case on the facts proved the appellant was not compelled to be a witness against him M P Sharma vs Satish Chandra and others 1954 SCR 1077 considered 2 that in an appeal under section 4I7 Of the Code of Criminal Procedure under section 422 notice of the appeal has to be given to the accused but where as in the present case the High Court found on the facts that the appellant was fully apprised of the time and place at which the appeal would be heard and counsel 117 appeared on his behalf and argued the appeal the fact that a formal notice of the appeal was not served on him would not vitiate the conviction

Petition NO 530 of 1959 222 Petition for cancellation of the decree dated November 25 1949 granted to the Respondent by the Order in Council in Privy Council Appeal No XI of 1948 C K Daphtary Solicitor General for India and B R L Iyengar for the petitioner K R Bengeri and A G Ratnaparkhi for the respondent March 9 The Judgment of the Court was delivered by GAJENDRAGADKAR J This petition has been made under section 10 of the Bombay Hereditary Offices Act 1874 hereinafter called the Act for cancellation of the decree granted to the respondent by the Order in Council dated November 25 1949 in so far as the said decree purports to operate on or include any right to the office of the Patilki and 11 Watan lands attached thereto These lands are situated at Kirtgeri in the Taluk of Gadag They form part of a Watan and according to the revenue records they have been assigned as remuneration to the officiator for the time being under section 23 of the Act The petitioner has obtained a certificate prescribed under section 10 and he contends that as a result of the said certificate this Court should cancel the decree as claimed by him in the petition It appears that the respondent had filed a suit against the petitioner in the Court of the First Class Sub Judge at Dharwar Civil Suit No 18 of 1934 and in the said suit he had claimed partition and possession of the properties as an adopted son of Shiddangouda These properties were and are in the possession of the petitioner The trial court passed a decree in favour of the respondent The petitioner then preferred an appeal No 182 of 1935 in the High Court of Bombay His appeal was allowed and the decree passed by the trial court was reversed The respondent then challenged the High Court decree and went up to the Privy Council in Appeal No 11 of 1948 His appeal was allowed and the Privy Council held that the decree passed by the trial court should be restored Accordingly an Order in Council was drawn up on November 25 1949 under this order 223 the respondent was entitled to recover by partition a half share in the properties in suit He was also entitled to mesne profits past and future till the recovery of possession or three years and an enquiry was directed in that behalf Amongst the properties in which the respondent had thus become entitled to claim a share are the 11 lands in question In due course the respondent filed an execution application Darkhast No 41 of 1950 in the Court of the Subordinate Judge at Dharwar The petitioner then contended that the 11 lands in question were governed by the provisions of the Act they were assigned as remuneration to the office of the Patil and as such they could not be partitioned It was also urged on his behalf that in the original suit the respondent had not claimed any declaration that he was entitled to the office of Patil and that without such a claim the 11 lands in question could not be claimed by the respondent In support of these pleas the petitioner relied upon the provisions of the Act contained in sections 7 10 11 13 24 25 and 36 Pending the execution proceedings the petitioner applied for the grant of the prescribed certificate under section 10 of the Act and a certificate was accordingly issued by the Collector addressed to the Civil Judge Senior Division Dharwar Thereupon the said court acted upon the certificate and cancelled the execution process which had been issued against the Patilki assigned property of Kirtgeri The respondent challenged the said order before the Bombay High Court and his challenge was upheld by the said High Court The High Court followed its own earlier Full Bench decision in Rachapa vs Amingouda 1 and held that the certificate issued by the Collector under section 10 was invalid in that it was addressed not to the Privy Council which was the court which passed the decree but to the Civil Judge at Dharwar In the result the order cancelling the execution process which had been passed by the executing court was set aside and a direction was issued that the execution proceedings should proceed according to law Thereafter the petitioner applied for a reissue of a certificate under section 10 and prayed that the certificate 1 1881 V BOM 224 should be addressed to this Court as in the meanwhile the Privy Council had ceased to have any jurisdiction and this Court had become its successor A certificate has accordingly been issued on January 13 1958 addressed to this Court The certificate says that the property in question has been assigned as remuneration to the office of Patil and as such it is inalienable and not liable to process of civil court and so the process of attachment levied against the said property should be removed and the decree in so far as it relates to the said property should be cancelled It appears that after this certificate was issued by the Assistant Commissioner Gadag Division the respondent filed an appeal to the Deputy Commissioner Dharwar His appeal however failed and the certificate issued by the Assistant Commissioner has been confirmed It is with this certificate that the petitioner has moved this Court for the cancellation of the decree in question in regard to the 11 properties at Kirtgeri On behalf of the respondent it has been urged before us that the decision of the Bombay High Court operates as res judicata and so in view of the said decision the present certificate also should be held to be invalid The argument is that the effect of the decision of the Bombay High Court is that the certificate should have been addressed to the Privy Council and since it is addressed to this Court it is invalid We are not impressed by this argument What the Bombay High Court has held is that the certificate must be issued to the court which passed the decree and if in law this Court can be said to be in effect and in substance the Court that pssed the decree then the Certificate must be held to be perfectly valid Therefore there is no substance in the argument of res judicata The main question which falls to be considered is whether this Court can in view of the constitutional changes which have taken place in the meantime be said to be the Court that has passed the present decree In our opinion the answer to this question must be in favour of the petitioner Lot us therefore proceed to consider the relevant statutory Provisions 225 Section 2 of the Abolition of the Privy Council Jurisdiction Act 1949 has provided inter alia that as from the appointed day which was October 10 1949 the jurisdiction of His Majesty in Council to entertain appeals and petitions from or in respect of any judgment decree or order of any court or tribunal within the territory of India shall cease save hereinafter provided Section 4b provides that nothing contained in section 2 shall affect the jurisdiction of His Majesty in Council to dispose of any Indian appeal or petition on which the Judicial Committee has after hearing the parties reserved judgment order This provision applied to Appeal No 11 of 1948 between the parties then pending before the Privy Council Section 5 conferson the Federal Court corresponding jurisdiction to entertain and dispose of Indian appeals and petitions which His Majesty in Council has whether by virtue of His Majesty s prerogative or otherwise immediately before the appointed day In other words after the appointed day the Federal Court was given jurisdiction to entertain and dispose of not only Indian appeals but also petitions and that would naturally include a petition like the present with which we are dealing Section 8 dealt with the effect of the orders of His Majesty in Council it provided that any order made by His Majesty in Council on an Indian appeal or petition whether before or after the appointed day shall for all purposes have the effect not only as an order of His Majesty in Council but also as if it were an order or decree made by the Federal Court in exercise of the jurisdiction conferred by this Act This then was the position with regard to the jurisdiction and powers of the Federal Court vis a vis the appeals and petitions pending before the Privy Council and orders made on them The next relevant provisions are contained in article 374 and article 135 of the Constitution article 3742 provides that all suits appeals and proceedings Civil or Criminal pending in the Federal Court at the commencement of the Constitution shall stand removed to the Supreme Court and the Supreme Court shall have jurisdiction to hear and determine the same and the judgments and orders of the Federal 29 226 Court delivered or made before the commencement of the Constitution shall have the same force and effect as if they had been delivered or made by the Supreme Court It is with the latter part of article 3742 that we are concerned in the present petition We have I already seen that the Order in Council issued in accordance with the judgment of the Privy Council in Appeal No 11 of 1948 had to be treated as if it was an order and decision of the Federal Court under the relevant provisions of the Act of 1949 Now another fiction has been introduced by article 3742 and the said order and decree has now to be treated as if the decree had been passed and the order had been made by the Supreme Court That takes us to article 135 This article provides that until Parliament by law otherwise provides the Supreme Court shall also have jurisdiction and powers with respect to any matter to which the provisions of article 133 or article 134 do not apply if jurisdiction and powers in relation to that matter were exercisable by the Federal Court imme diately before the commencement of this Constitution under any existing law We have already noticed that the Federal Court had jurisdiction to deal with a petition like the present before the commencement of the Constitution that jurisdiction can now be exercised by this Court as a result of article 135 The position therefore is that the petition which could have been presented to the Privy Council if the jurisdiction of the Privy Council had not been abolished could have been presented before the Federal Court before the commencement of the Constitution and can be presented to this Court after the commencement of the Constitution We therefore feel no doubt that as a result of the relevant statutory provisions to which we have referred the certificate issued in the present case to this Court is valid and must be given effect to It is not disputed that the properties in respect of which the certificate has been issued are properties assigned as remuneration to Patilki I office and are governed by the provisions of the Act It is also conceded that if the certificate is duly issued under section 10 of the Act it makes it obligatory on the court to 227 cancel the decree in regard to the properties covered by the certificate Section 10 provides inter alia that when it shall appear to the Collector that by virtue of or in execution of a decree or order of any court any watan or any part thereof or any of the profits thereof recorded as such in the revenue records or registered under this Act and assigned under section 23 as remuneration of an officiator has or have after the date of this Act coming into force passed or may pass without the sanction of the State Government into the ownership or beneficial possession of any person other than the officiator for the time being the court shall on receipt of a certificate under the hand and seal of the Collector stating the particulars mentioned in the section cancel the decree or order complained of so far as it concerns the said watan or any part thereof The only objection against the validity of the certificate is that it has been addressed to a wrong court Since we have overruled that objection it follows that portion of the decree which concerns the watan properties must be cancelled In the result the petition is allowed and the decree in question in so far as it purports to operate on or include any right to the office of Patilki and watan lands attached thereto at Kirtgeri as enumerated in the certificate is cancelled Under the circumstances of this case there will be no order as to costs Petition allowed

The appellant s workmen were represented by a Union called Kamdar Mandal Cement Works Porbandar The registration of the said union was cancelled and that led to the formation of two Unions the Cement Kamdar Mandal and Cement Employees Union The Cement Kamdar Mandal gave two notices one after another to the appellant purporting to terminate two previous awards wherein the defunct union represented the workmen Thereafter the Mandal presented fresh demands and the dispute was referred to the Tribunal The second union the Cement Employees Union which represented the majority of the appellant s workmen at Porbandar had been impleaded in the proceedings The appellant raised preliminary objections before the Tribunal against the competency of the reference inter alia on the ground that the award in question by which the parties were bound had not been duly terminated under section 196 of the Act in as much as the union which purported to terminate the said award represented only a minority of workmen bound by it The Tribunal by its interlocutory judgment found against the appellant The dispute between the parties centres round the question as to who can issue the notice terminating the award on behalf of workmen who are bound by the award as a result of section 18 of the Act The question therefore for decision is whether a registered trade union representing a minority of workmen governed by an award can give notice to the other party intimating its intention to terminate the award under section 196 of the Held that the effect of section 18 is that an award properly made by an industrial tribunal governs the employer and all those who represent him under section 18c and the employees who are parties to the dispute and all those who are included in section 18b and d On a fair and reasonable reading of section 196 the true position is that though the expression any party bound by the award refers to all workmen bound by the award notice to terminate the said award can be given not by an individual workman but by a group of workmen acting collectively either through their union or otherwise and it is not necessary that such a group of workmen acting collectively either through their union or otherwise should represent the majority of workmen bound by the award Thus it is open to a minority of workmen or a minority union to terminate 158 the award by which they along with other employees are bound just as much as it is open to them to raise an industrial dispute under the Act The Central Provinces Transport Services Limited vs Raghunath Gopal Patwardhan and The Newspapers Limited vs The State Industrial Tribunal U P referred to

Civil Appeal No 411 of 1959 Appeal by special leave from the judgment and order dated 9th January 1959 of the Allahabad High Court in First Appeal No 448A of 1958 L K Jha P Rama Reddy R K Garg and R Patnaik for the appellant G section Pathak G N Dikshit Udai Pratap Singh J P Goval M section Gupta and P C Aggarwala for respondent No 1 1960 February 23 The Judgment of Sinha C J Imam Wanchoo and Shah JJ was delivered by Shah J Sarkar J delivered a separate Judgment SHAH J Three candidates Balwan Singh hereinafter referred to as the appellant Ram Dulari and Gaya Prasad contested the election to the U P Legislative Assembly from the Akbarpur Rural Assembly Constituency No 6 at the last general elections held in 1957 The polling of votes took place on February 28 1957 and the result of the election was declared on March 2 1957 The appellant secured the highest number of votes and was declared duly elected A voter named Lakshmi Narain who will hereinafter be referred to as the first respondent submitted an application to the Election Commission of India to declare the election of the appellant Balwan Singh 93 void on the ground inter alia that the appellant and or his election agent andor other persons with his consent had committed corrupt practices and the result of the election was materially affected by such corrupt practices committed in his interest In Cl f of para 9 of the petition which is material for this appeal it was averred by the first respondent that in villages set out in annexure D the appellant his agents and workers with the consent of the appellant hired and procured bullock carts and tractors for conveying women electors to and from the polling station In Sch D was set out a list of 30 villages This election petition was referred for trial to the District Judge Kanpur who was constituted the Election Tribunal for trying the petition The appellant by his written statement contended that the averments made in Cl f of para 9 were untrue that neither he nor his agents or workers had ever hired or procured bullock carts or trucks to convey women voters from the villages set out in Annexure D or any other village to the polling station He also submitted that the first respondent had not disclosed the names of the voters nor the particulars of the conveyances and that the latter could not in view of the defective pleading be permitted to challenge the election of the appellant on that charge On July 15 1957 the first respondent applied for leave to amplify the particulars set out in the various clauses of para 9 including the particulars set out in Cl f and prayed for leave to amplify the recitals in that clause by incorporating Ann D 1 in the petition In Ann D 1 the first respondent set out the nature of the vehicles used the names of the owners of the vehicles the names of the villages from which women voters were conveyed at the expense of the appellant to the polling station and back the hire paid and the description of the families to which the women voters who were conveyed belonged The appellant submitted in rejoinder that by his application the first respondent in substance sought not to amplify the particulars given by him but to make allegations about fresh corrupt practices and prayed that several clauses including Cl f of para 9 be deleted On July 29 1957 the Election Tribunal 94 rejected the application of the first respondent He observed that Merely saying that the corrupt practice was followed in the villages whose list was given in annexure D does not amount to giving particulars as were required to be furnished by the aforesaid Section 83 1b of the Representation of the People Act and directed that certain paragraphs including Cl f para 9 and Annexure D be struck off Relying upon a judgment of the Allahabad High Court delivered on September 9 1957 Mubarak Mazdoor vs K K Banerji and another 1 in which the practice to be followed in dealing with allegations of corrupt practices made in an election petition on the ground of vagueness was enunciated the first respondent applied for review of that order The Election Tribunal by its order dated September 13 1957 accepted the plea of the first respondent for review of the order and directed that the order dated July 29 1957 beset aside The appellant applied under article 227 of the Constitution to the High Court of Judicature at Allahabad challenging the correctness and propriety of the order of the Election Tribunal reviewing its order dated July 29 1957 By its order dated March 6 1958 the High Court substantially confirmed the order passed by the Tribunal The High Court observed that the Tribunal had jurisdiction to review its earlier order and that in the circumstances of the case it was unnecessary to decide whether the order dated September 13 1957 was properly passed because the order dated July 29 1957 was unjust and improper and the matter having been brought before it in a proceeding under article 227 of the Constitution the High Court could rectify the error by setting aside the earlier order Pursuant to the order passed by the High Court the averments made in Cl f of para 9 were restored and Ann D 1 was incorporated in the petition By its order dated August 16 1958 the Tribunal dismissed the petition holding that the first respondent failed to establish the corrupt practices on which 1 95 the petition was founded Dealing with the corrupt practice set out in Cl f of para 9 the Tribunal observed that the corrupt practice described in section 123 5 of the Representation of the People Act lies in the act of hiring or procuring vehicles by a candidate or his agent and that this corrupt practice is not committed merely by conveying the voters and as the particulars of hiring and procuring of the vehicles were not furnished in the petition and the evidence adduced by the first respondent to support his case of hiring or procuring vehicles was unsatisfactory the case of the first respondent about the commission of a corrupt practice by the appellant stood unsubstantiated In an appeal under section 116A of the Respresentation of the People Act against the order of the Election Tribunal the High Court of Judicature at Allahabad set aside the order and declared the election of the appellant void The High Court held that the petition was defective in that it omitted to set out the date and place of the hiring of the tractor which was proved to have been used for conveying voters to the polling station but no prejudice was caused to the appellant as a result of that omission In the view of the High Court the testimony of A P Malik the Presiding Officer at Naholi polling station corroborated by exh 22 a petition submitted on the date of the polling by one Raghuraj Singh agent of Ram Dulari a contesting candidate and further supported by the evidence of witness Kalika Prasad and another witness Raghuraj Singh established that voters were conveyed in a trailer attached to a tractor at the instance of the appellant to the Naholi polling station and that the evidence of one Hanuman Singh established the contract of hiring the tractor used for conveying voters to the polling station The High Court accordingly held that the appellant had committed the corrupt practice of hiring a vehicle for conveying voters to the polling station Against the order passed by the High Court declaring the election of the appellant void this appeal has by special leave been filed Section 831b of the Representation of the People Act as amended provides that an election petition 96 shall set forth full particulars of any corrupt practice the petitioner alleges including as full a statement as possible of the names of parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice Section 123 sets out what shall be deemed to be corrupt practices for the purposes of the Act and by Cl 5 thereof as it stood at the material date it was in so far as it is relevant provided The hiring or procuring whether on payment or otherwise of any vehicle or vessel by a candidate or his agent or by any other person for the conveyance of any elector other than the candidate himself the members of his family or his agent to or from any polling station provided under section 25 or a place fixed under sub section 1 of section 29 for the poll Neither in the petition as originally filed nor as amended the date and place of hiring the tractor which was alleged to have been used for conveying the voters and the names of the persons between whom the contract of hiring was settled were set out The question which then falls to be determined is Whether the election petition was liable to be rejected because it did not set forth particulars of the date and place of hiring the vehicle alleged to have been used in conveying voters In the opinion of the High Court the corrupt practice described in section 1235 being the hiring or procuring of a vehicle for conveying voters to the polling station in the absence of a detailed statement as to the time and place of the hiring the petition was defective In so opining the High Court relied upon an earlier decision of that Court Madan Lal vs Syed Zargham Haider and others 1 In that case Bhargava J delivering the judgment of the Court observed under section 1235 of the Representation of the People Act a corrupt practice consists in the act of hiring or procuring certain types of vehicles by a candidate or his agent or by any other person for the conveyance of any elector to or from any polling station A corrupt practice is therefore 1 97 committed not by conveying the voter but by the act of hiring or procuring the conveyance In clause b of section 831 an election petitioner is required to set forth full particulars of the corrupt practice including as full a statement as possible of the 1 names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice The language used in this provision of law requires the setting forth of the full particulars of the corrupt practice and specially mentions at leapt three particulars which must be given These are the names of the parties alleged to have committed the corrupt practice the date when the corrupt practice was committed and the place of the commission of the corrupt practice Not the contract of hiring but the fact of hiring for conveying voters to and from the polling station is declared by section 1235 a corrupt practice A petition which sets forth the particulars about the use of a vehicle for conveying voters to and from the polling station with details as to the time and place coupled with as full a statement as possible in support of the plea that the vehicle was hired or procured by the candidate or his agent or another person substantially complies with the requirement of section 831b In considering whether a corrupt practice described in section 1235 is committed conveying of electors cannot be dissociated from the hiring of a vehicle The corrupt practice being the hiring or procuring of a vehicle for the conveyance of the electors if full particulars of conveying by a vehicle of electors to or from any polling station are given section 83 is duly complied with even if the particulars of the contract of hiring as distinguished from the fact of hiring are not given Normally the arrangement for hiring or procuring a vehicle is within the special knowledge of the parties to that agreement and it is difficult to assume that it was intended to require the petitioner in an election dispute to set out the particulars of facts within the special knowledge of the other party and expose the petition to a penalty of dismissal if those particulars could not be given If particulars in support of the 13 98 plea of the vehicle being hired or procured by the candidate or his agent or by another person was used for conveying voters to or from the polling station are set out failure to set out particulars of the contract of hiring or arrangement of procuring will not render the petition defective By The Representation of the People Act 195 1 as amended by Act 27 of 1956 a penalty of dismissal of a petition or the striking out of the plea of a corrupt practice merely because particulars in that behalf are not set out is not imposed By section 90 cl 5 of the Act the Tribunal is authorised to allow particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition By section 901 of the Act every election petition is subject to the provisions of the Act and Rules made thereunder to be tried as nearly as may be in accordance with the procedure appli cable under the Civil Procedure Code to the trial of suits and for failure to furnish particulars after being so ordered but not before the Tribunal may strike out a defective plea The practice to be followed in cases where insufficient particulars of a corrupt practice are set forth in an election petition is this An election petition is not liable to be dismissed in limine merely because full particulars of a corrupt practice alleged in the petition are not set out Where an objection is raised by the respondent that a petition is defective because full particulars of an alleged corrupt practice are not set out the Tribunal is bound to decide whether the objection is wellfounded If the Tribunal upholds the objection it should give an opportunity to the petitioner to apply for leave to amend or amplify the particulars of the corrupt practice alleged and in the event of noncompliance with that order the Tribunal may strike out the charges which remain vague Insistence upon full particulars of corrupt practices is undoubtedly of paramount importance in the trial of an election petition but if the parties go to trial despite the absence of full particulars of the corrupt practice alleged and evidence of the contesting parties is led on the plea 99 raised by the petition the petition cannot thereafter be dismissed for want of particulars because the defect is one of procedure and not one of jurisdiction of the Tribunal to adjudicate upon the plea in the absence of particulars The appellate court may be justified in setting aside the judgment of the Tribunal if it is satisfied that by reason of the absence of full particulars material prejudice has resulted and in considering whether material prejudice has resulted failure to raise and press the objection about the absence of particulars before going to trial must be given duo weight Assuming that in the case before us the petition was defective because particulars as to the persons between whom the contract of hiring was entered into and the date and place thereof have not been set out the High Court was right in holding that no material prejudice was occasioned thereby In the written statement to the petition as originally filed it was not expressly contended that because of the absence of particulars as to the names of the persons between whom the contract of hiring took place and the date and place of the contract the appellant was unable to meet the charges made against him Even after the petition was amended no such objection was raised by the appellant Before the Tribunal at the hearing of the argument a plea that the petition was defective because of lack of particulars relating to the names of the persons who entered into the contract of hiring and the time and place thereof was apparently raised But all the evidence relating to the hiring and the time and place thereof was without objection admitted on the record It is not even suggested that because of the absence of the particulars the appellant was embarrassed in making his defence or that he could not lead evidence relevant to the plea of corrupt practice set up by the first respondent We are therefore unable to hold that any material prejudice was occasioned because of the absence of those particulars in the petition The order of the Tribunal rejecting the application of the first respondent for amplification of the particulars of the corrupt practice alleged in the election 100 petition was for reasons already set out erroneous and in that view the question whether the High Court misdirected itself in holding itself bound at the hearing of the appeal by its earlier judgment delivered on the writ petition does not fall to be determined Counsel for the appellant urged that in any event the High Court was not justified in disagreeing with the considered judgment of the Tribunal on questions purely of appreciation of evidence But this appeal has been filed with special leave granted under article 136 of the Constitution It is the settled practice of this Court to grant leave to appeal under article 136 only if exceptional and special circumstances exist or that substantial and grave injustice has been done and the case presents features of sufficient gravity to warrant a review of the decision appealed against Merely because the appeal has been admitted by special leave the entire case is not at large and the appellant is not free to contest the findings of fact of the subordinate tribunals Only those points on which special leave may initially be granted can be urged at the final hearing and normally special leave will not be granted by this Court under Art 1361 of the Constitution on a plea of error committed by the Courts below in the appreciation of evidence This would be sufficient to justify us in refusing to entertain the argument advanced by the counsel for the appellant We may however observe that even on a review of the evidence we are satisfied that the High Court was right in its conclusion There was before the Tribunal the evidence of Mr A P Malik the Presiding Officer at the Naholi polling station who testified that he had seen on the day Of Polling a tractor at a distance of 100 to 150 yards from the polling booth The witness stated that be did not remember having seen any flag or poster on the tractor The witness however had made a note in his diary about an application submitted to him by Raghuraj Singh P W 30 A copy of that application has been produced and it is recited in that application that a tractor had come to the polling booth and was parked near the line of voters that some persons a majority of whom were women were sitting on the 101 tractor that a red flag was hoisted and posters of the socialist party were pasted on the tractor and that some men and women who came on the tractor were placed in the queue of voters There was also the evidence of Raghuraj Singh PW 38 a voter in the constituency He stated that he had seen the tractor belonging to Chandra Bahadur Pandey of village Chapargatha near the polling station that a red flag was hoisted and posters were pasted over the tractor with the symbol of a banyan tree which was the emblem of the party of the appellant He further stated that one Kalika Prasad and some female members of his family had come on the trailer and Radhey Shyam an agent of the appellant had taken all these voters and had given them slips of paper Kalika Prasad was also examined and he stated that he and his wife and several other villagers had gone to the Naholi polling station to exercise their franchise on the trailer attached to the tractor that a red flag was hoisted and posters were pasted on the trailer and that there was on the posters the legend that votes be cast in favour of the appellant It is established by unimpeachable evidence that a tractor was brought to Naholi Polling Station on the date of the polling The Tribunal accepted the evidence of Mr Malik but rejected the testimony of other witnesses on somewhat fanciful theories The Tribunal observed that at the material time no tractor was brought near the polling booth and if one was brought the owner of the tractor may possibly have given a free lift to the voters to the polling station and back The Tribunal also suggested that the tractor may have been brought without the consent of the appellant or his agents But the fact that a tractor was brought to the polling station is clearly established by the evidence of Mr Malik That on the tractor was carried a red flag of the party of the appellant is established by the evidence of the two witnesses Raghuraj Singh PW 30 and Raghuraj Singh PW 38 and also by the evidence of Kalika Prasad It is also established on the evidence that on the tractor were displayed posters bearing the symbol of a banyan tree which was the election emblem of the party of the appellant at the election There was no 102 sufficient reason for discarding this testimony Witness Hanuman Singh PW 56 deposed that he was present at the time of the settlement of the bargain of hiring the tractor belonging to Chandra Bahadur for conveying voters The High Court accepted that evidence and we do not think judged in the context of the other evidence that the High Court was in error in so doing The appeal therefore fails and is dismissed with costs SARKAR J I agree that this appeal fails The appellant had been declared elected at an election The first respondent filed an election petition under the Representation of the People Act 1951 to to have the appellant s election declared void Among other things it was said that the appellant had committed a corrupt practice which was described in the petition substantially in these words In villages mentioned in annexure D the appellant hired a tractor for conveying women electors from their houses to places of polling and back The appellant applied to have this allegation struck out as it did not contain sufficient particulars of the corrupt practice alleged The respondent in his turn sought permission to give particulars of this corrupt practice by amending his petition by the substitution of a new annexure to his petition marked DI in the place of the existing annexure D The Election Tribunal first made an order refusing the amendment and striking out the allegation as desired by the appellant Later it made another order reviewing its earlier order and thereby cancelled that order By this order it directed the restoration of the allegation struck out and the substitution of annexure D by annexure DI The appellant moved the High Court at Allahabad under articles 226 and 227 of the Constitution against the latter order of the Tribunal The High Court held that the Tribunal had the power to review any order made by it and that the order made on review allowing the amendment was correct It also held that if the Tribunal had no power of review the High Court 103 being itself seized of the matter would be deemed to have set aside the first order of the Tribunal and made an order allowing the amendment The appellant did not appeal from this order of the High Court The parties then went to trial before the Tribunal The appellant led his evidence without any objection as to the petition being defective for want of any particulars The Tribunal took the view that the corrupt practice alleged had not been proved and dismissed the petition On appeal the High Court held that the corrupt practice had been proved and set aside the election of the appellant Hence this appeal It is said that the election petition should have been dismissed because sufficient particulars of the corrupt practice alleged had not been given in the petition The corrupt practice alleged is of the kind mentioned in section 123 5 of the Act which is in these words The hiring or procuring whether on payment or otherwise of any vehicle or vessel by a candidate for the conveyance of any elector to or from any polling station It is contended that the hiring of the vehicle is an essential element of the corrupt practice mentioned in this section I am leaving out of consideration the procuring of a vehicle because that is not the case here It is said that the petition must therefore state the particulars of the date and place of the contract of hiring and the parties to it Reference is made to section 83 of the Act where it is provided that An election petition shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such corrupt practice The question thus arises whether the particulars of the parties to the contract of hiring and the date when and the place where it had been made should have been given The respondent does not deny that the particulars of the contract of hiring had not been stated in the 104 petition According to him the corrupt practice mentioned in section 123 5 is not committed by the contract of hiring but by the conveyance of the electors in a hired vehicle Hence he says that no question as to these particulars arise In my view the appellant s contention is wellfounded Under the section the hiring of the vehicle for the conveyance of electors is the corrupt practice It is of the essence of this corrupt practice that the vehicle must have been hired that is to say a contract for the hiring of the vehicle must have been made I am unable to imagine how a vehicle can be hired without a contract Therefore it seems to me that particulars of that contract should be given I am also unable to appreciate the respondent s contention It seems to me that to say that the corrupt practice is committed by the conveyance of electors in a hired vehicle is the same thing as saying that electors had been conveyed by a vehicle which had been hired that is a vehicle in respect of which a contract of hiring had been made Simple conveyance of electors in a vehicle is not enough The vehicle must be a hired vehicle Hence there is no corrupt practice unless the hiring of the vehicle that is the contract of hire in respect of it is established Whether a simple contract of the hiring of a vehicle for the conveyance of electors without actual conveyance of them would amount to a corrupt practice or not is a question that does not arise in this case But it seems to me that whatever view is taken of that question that would not make the contract of hiring any the less an essential element of the corrupt practice described in section 1235 In my view therefore the appellant was entitled to the particulars the want of which he now complains The question then is what is the effect of the failure to supply these particulars I am unable to agree that the petition was thereupon liable to be dismissed It has not been shown to us that the Act provides for such dismissal Section 83 does not say that on failure to furnish the prescribed particulars the petition shall be dismissed On the other hand section 903 of the Act provides that The Tribunal shall 105 dismiss an election petition which does not comply with the provisions of section 81 section 82 or section 117 This section does not include section 83 It therefore seems to me that the appellant was not entitled to a dismissal of the petition for want of the particulars The appellant was certainly entitled to apply for the particulars I conceive he would have such a right under section 83 and also section 901 of the Act which made the provisions of the Code of Civil Procedure applicable to a trial before an Election Tribunal in the view that I have taken that the contract of hiring is an essential element of the corrupt practice mentioned in section 1235 of the Act The appellant however made no such application Instead he went to trial and led evidence without making any grievance that he was hampered in his defence for want of the particulars He cannot at a later stage complain about the absence of the particulars It is unnecessary to consider what would have happened if upon the appellant s application the respondent had been directed to furnish the particulars and had failed to do so for no such order had been made It only remains for me to say that it is not open for the appellant to contend now that the Tribunal was wrong in reviewing its order The High Court rejected that contention in the order made on the application under articles 226 and 227 of the Constitution For greater safety it also made an order allowing the amendment sought by the respondent The High Court s decision not having been questioned by the appellant by an appeal is binding on him He must therefore accept the position that the amendment of the petition was proper I may also state that if the amendment had not been properly allowed that would not have made any difference The only result would have been that some more particularsof the corrupt practice alleged would have been wanting For the reasons earlier stated this would not have entailed a dismissal of the election petition 14 106 The only other point that was argued at the bar was a question of fact namely whether the corrupt practice alleged had been proved On that point I am in perfect agreement with the view expressed by my learned brothers and have nothing to add Appeal dismissed

The appellant company used to employ Messrs section M Chou dhary as its contractors for doing certain work for it and the contractors in their turn used to employ some workmen to carry out the work which they took on contract A dispute having arisen between the contractors and their workmen an application was made before the conciliation board by the workmen in which both the company and the contractors were parties and four matters were referred namely non grant of bonus for two years non grant of festival holidays non fixation of minimum wages of those workmen at par with the workmen of the company and non abolition of the contract system As conciliation failed the Government referred the dispute to the Industrial Tribunal under the UP Industrial Disputes Act in which only three points out of the four mentioned above were referred and the question of non abolition of the contract system was not referred The parties to this reference were the contractors and their workmen and not the appellant company By a subsequent notification however the Government impleaded the Company as a party to the dispute but did not amend the previous referring order by 190 adding the fourth point of dispute which was before the conciliation board namely the non abolition of the contract system The Industrial Tribunal framed a number of issues the most important of which was whether the workmen concerned were the employees of the appellant company or of the contractors and came to the conclusion that those workmen were in fact and in reality the employees of the company On appeal by the company by special leave Held that on such a reference there could be no jurisdiction in the tribunal to decide the question whether these workmen were the workmen of the company or of the contractors for such a question was not referred to the tribunal

iminal Appeal No 73 of 1959 Appeal by special leave from the judgment and order dated January 1620th 1959 of the Bombay High Court in Confirmation case No 25 of 1958 with Criminal Appeal No 1372 of 1958 arising out of the judgment and order dated October 27 1958 of the Sessions Judge Poona in Sessions Case No 52 of 1958 A section R Chtiri section N Andley J B Dadachanji and Rameshwar Nath for the appellant H N Seervai Advocate General for the State of Bombay Porus A Mehta and R H Dhebar for the respondent December 14 The Judgment of section K Das and Hidayatullah JJ was delivered by Hidayatullah J Sarkar J delivered a separate Judgment HIDAYATULLAH J This appeal by special leave is against the judgment of the Bombay High Court J C Shah J now of the Supreme Court and V section Desai J by which it maintained the conviction of the appellant Lagu under section 302 of the Indian Penal Code and confirmed the sentence of death passed on him by Shri V A Naik now Naik J Sessions Judge Poona The appellant was tried for the murder of one Laxmibai Karve and the charge held proved against him was that on or about the night between November 12 and 13 1956 either at Poona or in the course of a railway journey between Poona and Bombay he administered to the said Laxmibai Karve some unrecognised poison or drug which would act as a poison 59 462 with the intention of causing her death and which did cause her death Laxmibai Karve was a resident of Poona where she lived at 93 95 Shukrawar Peth Before her marriage of she was known as Indumati Indutai or Indu Ponkshe In the year 1922 she married Anant Ramachandra Karve a widower with a son by name Vishnu On her marriage as is the custom she was named Laxmibai by the family of her husband and was known as Laxmibai Karve She was also known as Mai or Mai Karve From Laxmibai there were born two sons Ramachandra PW 1 and Purshottam alias Arvind who died in 1954 Anant Ramachandra Karve was a moderately rich man who had been successful in business He died in 1945 of pleurisy He was attended till his death by the appellant and his brother B C Lagu both of whom are doctors Anant Ramachandra Karve left a will dated February 28 1944 Prior to the execution of the will he had gifted Rs 30000 to his son Vishnu to set him up in business By his will he gave the house No 93 95 Shukrawar Peth Poona to Ramachandra with a right of residence in at least three rooms to his widow Laxmibai and a further right to her to receive Rs 50 per month from the rent of the house He assigned an insurance policy of Rs 5000 in her favour The business was left to Ramachandra The cash deposits in Bank Post Office and with other persons together with the right to recover loans from debtors in the Bhor State were given to Purushottam alias Arvind Certain bequests of lands and debentures were made to Visbnu s children Laxmibai was also declared owner of all her ornaments of about 60 tolas of gold and nose ring and pearl bangles which were described in the will In addition to what she inherited from her husband Laxmibai inherited about Rs 25000 invested in shares from her mother Girjabai and another 60 tolas of gold ornaments In January 1954 Purushottam alias Arvind died at Poona By Purushottam s death Laxmibai also inherited all the property held by him 463 Thus at the time of her death Laxmibai possessed of about 560 shares in diverse Electric Companies debentures in South Madras Electric Supply Corporation and Mettur Chemical and Industrial Corporation a sum of Rs 7882 15 0 at the Bank of Maharashtra a sum of Rs 35000 in deposit with one Vasudeo Sadashiv Joshi gold and pearl ornaments and sundry movables like clothes house hold furniture radio etc In the year 1946 Ramachandra the elder son started living separately There were differences between the mother and son The latter had suffered a loss in the business and had mortgaged the house with one Shinde who filed a suit and obtained a decree but Vishnu filed a suit for partition claiming that his onethird share was not affected Before this Ramachandra had closed his business in 195 1 and joined the military He was posted at different places but in spite of their differences mother and son used to correspond with each other In May 1956 Laxmibai arranged and performed his marriage and he went away in June 1956 Laxmibai had contracted tuberculosis after the birth of Purushottam That was about twenty years before her death The lesion however healed and till 1946 her health was not bad From 1946 she suffered from diabetes In 1948 she was operated for hysterectomy and before her operation she was getting hysterical fits On June 15 1950 she was examined by Dr R V Sathe who prescribed some treatment In July 1950 she was admitted in the Wanless Tuberculosis Sana torium for pulmonary affection and she was treated till November 15 1950 Two stages of thoracoplasty operations were performed but she left though a third stage of operation was advised In the operations her leftside first rib and portions of 2nd to 6th ribs were removed Laxmibai was however treated with medicines and the focus it appears was under control We now come to the events immediately preceding her death Laxmibai had through the appellant taken an appointment from Dr Sathe of Bombay for 464 a consultation about her health for November 13 1956 at 3 30 p m It was to attend this appointment that she left Poona in the company of the appellant by Passenger train on the night of November 121956 for Bombay The train arrived at Victoria Terminus Station at 5 10 a m thirty five minutes late It is an admitted fact that Laxmibai was then deeply unconcious and was carried on a stretcher by the appellant to a taxi and later to the G T Hospital where she was entered as an in door patient at 5 45 a m She never regained consciousness and died at 11 30 a m Her body remained it the GT Hospital till the evening of the 14th when it was sent to the J J Hospital morgue for preservation Later it was to be handed over under the orders of the Coroner to the Grant Medical College for the use of Medical Students It was noticed there that she had a suspicious ligature mark on the neck and the body was subjected to postmortem examination and the viscera to chemical analysis and then the body was disposed of Both the autopsy as well as the chemical analysis failed to disclose any poison and the mark on the neck was found to be postmortem The appellant was the medical attendant and friend of the family He and his brother also a medical practitioner attended on Anant Ramachandra Karve till his death The appellant also treated Purshottam alias Arvind for two days prior to his death on January 18 1954 He was also the medical attendant of Laxmibai and generally managed her affairs In 1955 he started living in the main room of the suite occupied by Laxmibai and if Ramachandra is to be believed the reason for the quarrel between Laxmibai and himself was the influence which the appellant exercised over the mother to the disadvantage of the son However that be it is quite clear that the son left Poona in June 1956 and did not see his mother alive again The death of Laxmibai was not known to the relatives or friends The appellant also did not disclose this fact to any one On the other hand he kept it a close secret Soon afterwards people began receiving 465 mysterious letters purporting to be from Laxmibai stating that she had gone on pilgrimage that she did not intend to return and that none should try to find her whereabouts She advised them to communicate with her through the newspaper Sakal Laxmibai also exhorted all persons to forget her as she had married one Joshi and had settled at Rathodi near Jaipur in Rajasthan People who went to her rooms at first found them locked but soon the doors were open and the meveable property was found to have been removed Through these mysterious letters Laxmibai informed all concerned that she had herself removed these articles secretly and that none was to be blamed or suspected It is the prosecution case that these letters were forgeries and that the appellant misappropriated the properties of Laxmibai including her shares bank deposits etc The appellant has admitted his entire conduct after the death of Laxmibai by which he managed to get hold of her property His explanation was that he would have given the proceeds to some charitable institution according to her wishes adding some money of his own to round off the figure He led no evidence to prove that Laxmibai before she left Poona or at any time gave such instructions to him in the matter Meanwhile the continued disappearance of Laxmibai was causing uneasiness to her friends and relatives On December 31 1957 G D Bhave P W 8 addressed a complaint to the Chief Minister Bombay Similarly Dr G N Datar P W 5 also addressed a letter to the Chief Minister Bombay on February 16 1958 and in both these petitions doubts were expressed Ramachandra too made a report and in consequence of a preliminary investigation the appellant was arrested on March 121958 He was subsequently tried and convicted by the Sessions Judge Poona His appeal was also dismissed and the certificate of fitness having been refused he obtained special leave from this Court and filed this appeal The appellant s contention in this appeal is that the prosecution has not succeeded in proving that 466 Laxmibai was poisoned at all or that there was any poison administered to her which would evade detection yet cause death in the manner it actually took place The appellant contends also that his conduct before the death of Laxmibai was bona fide and correct that no inference of guilt can be drawn from all the circumstances of this case and that his subsequent conduct though suggestive of greed was not proof of his guilt on the charge of murder The conviction of the appellant rests on circumstantial evidence and his guilt has been inferred from medical evidence regarding the death of Laxmibai and his conduct The two Courts below have held that the total evidence in this case unerringly points to the commission of the crime charged and every reasonable hypothesis compatible with the innocence of the appellant has been successfully repelled A criminal trial of course is not an enquiry into the conduct of an accused for any purpose other than to determine whether he is guilty of the offence charged In this connection that piece of conduct can be held to be incriminatory which has no reasonable explanation except on the hypothesis that he is guilty Conduct which destroys the presumption of innocence can alone be considered as material The contention of the appellant briefly is that the medical evidence is inconclusive and that his conduct is explainable on hypotheses other than his guilt Ordinarily it is not the practice of this Court to re examine the findings of fact reached by the High Court particularly in a case where there is concurrence of opinion between the two Courts below But the case against the appellant is entirely based on circumstantial evidence and there is no direct evidence that he administered a poison and no poison has in fact been detected by the doctor who performed the postmortem examination or by the Chemical Analyser The inference of guilt having been drawn on an examination of a mass of evidence during which subsidiary findings were given by the two Courts below we have felt it necessary in view of the extraordinary nature of this case to satisfy ourselves 467 whether each conclusion on the separate aspects of the case is supported by evidence and is just and proper Ordinarily this Court is not required to enter into an elaborate examination of the evidence but we have departed from this rule in this particular case in view of the variety of arguments that were addressed to us and the evidence of conduct which the appellant has sought to explain away on hypotheses suggesting innocence These arguments as we have stated in brief covered both the factual as well as the medical aspects of the case and have necessitated a close examination of the evidence once again so that we may be in a position to say what are the facts found on which our decision is rested That Laxmibai died within six hours of her admission in the G T Hospital is not questioned Her body was identified by persons who knew her well from her photograph taken at the J J Hospital on November 19 1956 In view of the contention of the appellant that she died of disease andor wrong treatment we have to determine first what was the state of her health before she went on the ill fated journey This enquiry takes us to the medical papers maintained at the institutions where she was treated in the past the evidence of some of the doctors who dealt with her case of the observation of witnesses who could depose to her outward state of health immediately before her departure and lastly the case papers maintained by the appellant as a medical adviser The earliest record of Laxmibai s health is furnished by Dr K C Gharpure P W 17 who treated her in 1948 According to Dr Gharpure she entered his Nursing Home on April 6 1948 and stayed there till April 24 1948 Laxmibai was then suffering from Menorrhagia and Metrorrhagia for about six years In 1946 there was an operation for dilatation and also curettage She had Diabetes from 1945 and hysterical fits since 1939 On admission in Dr Gharpure s Nursing Home her blood pressure was found to be 14080 and urine showed sugar albumin nil She was kept in the hospital and probably treated and on the 11th when a sub total 468 hysterectomy was performed she had blood pressure 11075 and sugar traces albumin nil before the Laguoperation According to Dr Gharpure the operation was not for hysterical fits and along with hysterectomy the right ovary was cysticpunctured and the appendix was also removed A certificate was issued by Dr Gharpure exhibit 121 in which the same history is given Laxmibai was next examined by Dr Ramachandra Sathe PW25 on June 15 1950 He deposed from the case file which he had maintained about her complaints A copy of the case papers shows that she was introduced to him by the appellant At that time her weight was 120 lbs and her blood pressure 14090 Dr Sathe noticed that diabetes had existed for four years and that she was being given insulin for 8 months prior to his examination He also noticed hysterectomy scar and that she had a tubercular lesion on the left apex 20 years ago According to the statement of the patient she had trouble with tuberculosis from May 1949 and her teeth were extracted on account of pyorrhoea She was getting intermittent temperature from September 1949 and was receiving streptomycin and PAS irregularly She was then suffering from low temperature slight cough and expectoration On examination the doctor found that there was infiltration in the left apex but no other septic focus was found The evidence does not show the treatment which was given and the doctor merely stated that he must have recommended a line of treatment to the patient though he had no record of it On July 13 1950 Laxmibai entered the Wanlesswadi T B Sanatorium and stayed there till November 15 1950 Her condition is noted in two certificates which were issued by the Sanatorium and proved by Dr Fletcher P W 16 the Medical Superintendent In describing the previous history of the patient the case papers showed that she had a history of Pott s disease T B of the spine 20 years before She had diabetes for five years and history of hysterectomy operation two years before It was also noted that she had 469 T B of the lungs 15 years back but had kept well for 14 years and a new attack began in or about 1949 The certificate describes the treatment given to her in these words Patient was admitted on 13th July 1950 X Ray on admission showed extensive filtration on the left side with a large cavity in the upper zone the right side was within normal limits She had diabetes with high blood sugar which was controlled by insulin Two stages of thoracoplasty operations on the left side were done and there was good clearing of disease but there was a small residual cavity seen and the third stage operation was advised The patient is leaving at her own request against medical advice Her sputum is positive From the above it appears that Laxmibai s general complaints were menstrual irregularities corrected by hysterectomy tuberculosis of the lungs controlled to a large extent by thoracoplasty and medicines and diabetes for which she was receiving treatment In the later case papers there is no mention of hysterical fits and it seems that she had overcome that trouble after the performance of hysterectomy and the cysticpuncture of the ovary for there is no evidence of a recurrence after 1948 Diabetes was however present and must have continued till her death Next we come to the evidence of some witnesses who saw her immediately prior to her departure for Bombay on November 12 1956 The first witness in this connection is Ramachandra PW 1 son of Laxmibai He has given approximately the same description of her many ailments and the treatment she underwent He last saw her in June 1956 when his marriage was performed According to him the general condition of his mother was rather weak but before that her condition had not occasioned him any concern and he had not noticed anything so radically wrong with her as to prompt him to ask her about her ailments When he last saw his mother in June 1956 lie found her in good health Dr Madhav Domadhar Bhave PW 9 who knew Laxmibai 470 intimately stated that he saw her last in the month of October 1956 and that the condition of her health was good No question was asked from him in cross examination at all His brother G D Bhave PW 8 who is a landlord had gone to Laxmibai s house on November 8 1956 and met her in the presence of the appellant Laxmibai had then told him that she was going to Bombay with the appellant to consult Dr Sathe in connection with her health She had also stated that she would be returning in four or five days According to the witness she was in good health and was moving about and doing her own work The next witness is Champutai Vinayak Gokhale PW II who met Laxmibai on November 10 or 11 1956 Champutai is a well educated lady She is a BSc of the Bombay University and an MA of Columbia USA University She said that she had gone to Laxmibai s house to invite her for the birthday party of her son which was to take place on November 13 1956 She found Laxmibai in good state of health and Laxmibai promised that though she would be going to Bombay she would return soon enough to join the party Similarly Viswanath Janardhan Karandikar pleader of Poona met Laxmibai on November 10 or11 1956 Laxmibai had herself gone in the afternoon to him to ask him whether her presence was necessary in Poona in connection with the suit filed by Vishnu to which we have referred earlier The witness stated that Laxmibai was in good state of health at that time and that he informed her that he did not propose to examine her as a witness She was again seen by Dattatreya Vishnu Virkar PW 6 on the night of November 12 1956 an hour before she left her house for Bombay Virkar who is a Graduate in Electrical Mechanics and in Government service was a tenant living in the same house Laxmibai according to the will of her husband was entitled to Rs 50 out of the rents from tenants She went to Virkar s Block at 8 pm and told him that she was going to Bombay to consult a doctor in the company of the appellant and needed money Virkar gave her Rs 50 and 471 Laxmibai went back to her Block saying that she would give a receipt Later she brought the receipt to Virkar seated at his meals asked him not to get UP and left the receipt in his room The receipt signed by Laxmibai is exhibit 70 and is dated November 12 1956 Shantabai PW 14 a servant of Laxmibai was deaf and dumb and her evidence was interpreted with the help of Martand Ramachandra Jamdar PW 13 the Principal of a Deaf and Mute School It appears that Shantabai had studied Marathi and was able to answer questions written on a piece of paper replies to which questions she wrote in her own hand Some of the questions were not properly answered by Shantabai but she stated by pantomime that on the day on which she left the appellant had given two injections to Laxmibai The learned Sessions Judge made a note to the following effect In the morning the accused gave Laxmibai one injection and in the evening he gave the second one The signs were so clear that I myself gathered the meaning and the interpreter was not asked to interpret the signs Next Laxmibai was seen by Pramilabai Sapre PW 12 at 8 pm on November 121956 Laxmibai had told the witness that she was going to Bombay to consult a doctor and Laxmibai again passed her door at 9 15 pm when the witness was at her meals Though Laxmibai told her not to disturb herself the witness did get up and saw her The witness stated that Laxmibai did not suffer from T B after the operation but was suffering from diabetes and that she sometimes used to give Laxmibai her injections of insulin but only till 1953 The last witness on the state of Laxmibai s health is K L Patil P W 60 who saw Laxmibai immediately before her departure for the station He saw her standing at the Par in front of her house with a small bag and a small bedding He then saw the appellant arriving there and Laxmibai presumably left in a rickshaw or a tonga because there was a stand for these vehicles in the neighbourhood All this evidence was not questioned except to point out that Dr Datar in his petition to the Chief Minister had stated that Laxmibai was a 472 frank case of tuberculosis of both lungs and an invalidEx 68 But Dr Datar explained that he had so stated there because it was being circulated that she had gone on a long pilgrimage alone and that it was most improbable Indeed Dr Datar said that Laxmibai was well enough to do all her work and even cooked for herself From this mass of evidence given by persons from different walks of life and most of them well placed it is clear enough that Laxmibai was not in such a state of health that she would have collapsed in the train unless something very unusual took place She was not in the moribund state in which she undoubtedly was when she reached the hospital Her general health though not exactly good had not deteriorated so radically as to prevent her from attending to her normal avocations She appeared to have been quite busy prior to her departure arranging for this matter and that and she did not rely upon other persons help but personally attended to all that she desired Right up to 9 15 or so in the night she was sufficiently strong and healthy to go about her affairs and indeed she must have boarded the train also in a fit state of health because there is nothing to show that she was carried to the compartment in a state of collapse or unconsciousness We have stated earlier that the appellant who was presumably treating her for her ailments had maintained case papers to show what treatment he was giving her from time to time These case papers are exhibit 305 and commence on February 27 1956 The medicines that have been shown as prescribed in these case papers show treatment for diabetes general debility tuberculosis rheumatism and indigestion Much reliance cannot however be placed upon this document because these case papers significantly enough stop on November 12 1956 and continue again from February 13 1957 when Laxmibai was no more There are four entries of treatment given to Laxmibai between February 13 and February 28 1957 when Laxmibai had already died and her body had undergone postmortem examination and been cremated 473 The extent to which her treatment if any went in the period covered by the case papers may or may not be truly described by the appellant in these papers but we are definitely of the opinion that the entries there cannot be read without suspicion in view of the extraordinary fact described by us here It appears however that the last insulin injection was given to her on September 27 1956 though the appellant stated in his examination as accused in the case that she was put on Nadisan tablets for diabetes The appellant was questioned by the Sessions Judge as to the State of her health and he stated that Laxmibai on the day she left for Bombay had a temperature of 100 degrees and was suffering from laryngitis pharyngitis and complained of pain in the ear What relevance this has we shall point out subsequently when we deal with the medical evidence and the conclusions of the doctors about it The next question which falls for consideration is whether the appellant and Laxmibai travelled in the same compartment on the train The train left Poona at 10 pm and it is obvious enough that it was a comparatively slow and inconvenient train We have no evidence in the case as to whether the appellant travelled with Laxmibai in the same compartment but both the Courts below have found from the probabilities of the case that he did The best person to tell us about this journey is necessarily the appellant and reference may now be made to what he stated in regard to this journey The appellant had arranged for the examination of Laxmibai by Dr Sathe at Bombay He was the family physician and also a friend Laxmibai was an elderly lady and the appellant was for some time previous to this journey living in the main room of her block There would be nothing to prevent the appellant from travelling in the same compartment with his patient who might need his attention during the journey The appellant denied in Court that he had travelled in the same compartment but his statements on this part of the events have not been quite consistent After Laxmibai died and the question arose about the disposal of her body the police at 474 Poona were asked to contact the appellant to get some information about her On November 16 1956 before any investigation into ail offence of any kind was started the appellant was questioned by the police and he gave a written statement in exhibit 365 He stated there as follows I Anant Chintaman Lagu occupation Medical practitioner age 40 years residing at H No 4315 Shukrawar and dispensary at H No 20 Shukrawar Peth Poona 2 on being questioned state that on the night of 12th November 1956 1 left Poona for Bombay by the train which leaves Poona at 10 pm I reached Victoria Terminus at 5 15 am on 13th November 1956 In my compartment I bad a talk with a woman as also with other passengers On getting accomodation in the train almost all of us began to doze and at about 12 pm we slept As Byculla came we started preparations for getting down At that time one woman was found fast asleep From other passengers I came to know that her name was Indumati Panse about 36 years old and she had a brother serving in Calcutta Other passengers got down at V T The woman however did not awake 1 therefore looked at her keenly and found that she was senseless Being myself a doctor I thought it my duty to take her to the hospital I therefore took her to the GT Hospital in a taxi I know that that hospital was near As I had taken the said woman to the hospital the CMO took my address I have no more information about the woman She is not my relation and I am not in any way responsible for her It will appear from this that he was travelling in the same compartment as Laxmibai though for reason s of his own he did not care to admit that he was taking her to Bombay Similarly in the hospital when he was questioned about the patient he had brought for admission he stated to Dr Ugale P W 18 Casualty Medical Officer that the lady had suddenly become unconscious in the train This fact was noted by Dr Ugale in the bed head ticket and Dr Ugale has stated on oath that the information was supplied by 475 the appellant himself To Dr Miss Aneeja who was the House Physician on the morning of November 13 the appellant also stated the same thing Dr Miss Aneeja had also made a separate note of this and stated that the information was given by the appellant In view of these statements made by the appellant at a time when he was not required to face a charge we think that his present statement in Court that he travelled in a separate compartment cannot be accepted The train halted at various stations en route and evidence was led in the case of the Guard K Shamanna P W 37 who deposed from his memo book exhibit 214 This train made 26 halts en route before it arrived at V T Station Some of these halts were of as many as 20 minutes It is difficult to think that the appellant would not have known till he arrived at Victoria Terminus that his patient was unconscious and the fact that he mentioned that she became suddenly unconscious shows that be knew the exact manner of the onset Without however speculating as to what had actually happened it is quite clear to us that Laxmibai was in the same compartment as the appellant a fact which was not denied by the learned counsel in the arguments before us If we were to accept what the appellant stated as true then Laxmibai lost her consciousness suddenly It is however a little difficult to accept as true all that the appellant stated in this behalf because be told a patent lie to the police when he was questioned that he knew nothing about the woman or Who she was but took her to the hospital as an act of humanity when he found her unconscious There is nothing to show beyond this statement to the police in exhibit 365 that there were other passengers in the compartment but if there had been the attention of these passengers would have been drawn to the condition of Laxmibai and some one would have advised the calling of the Guard or the railway authorities at one of these stations at which the train halted The circumstances of the case therefore point to the appellant and Laxmibai being in the compartment together and the preponderance of 476 probabilities is that the compartment was not occupied by any other person We shall leave out from consideration for the present the circumstances under which Laxmibai was admitted in the G T Hospital and the treatment given to her We shall now pass on to her death and what happened thereafter and the connection of the appellant with the circumstances resulting in the disposal of the dead body We have already stated that the appellant was present in the hospital till her death We next hear of the appellant at Poona On the afternoon of November 13 1956 Dr Mouskar P W 40 the Resident Medical Officer of the Hospital sent a telegram exhibit 224 to the appellant and it conveyed to him the following information Indumati expired Arrange removal reply immediately The telegram was sent at about 2 pm The appellant in reply did not send a telegram but wrote an inland letter in which he stated that the name of the woman admitted by him in the hospital had been wrongly shown as Paunshe and that there was an extra u in it He also stated that he had informed her brother at Calcutta about the death and that the brother would call at the hospital for the body of his sister The name of the brother was shown as Govind Vaman Deshpande The letter also stated that the appellant was writing in connection with the woman aged 30 to 35 years admitted in the hospital at 6 am on November 13 1955 and who had expired the same day at 11 am The name of the brother in this letter is fictitious because Laxmibai bad no brother much less a brother in Calcutta and of this name Thereafter the appellant took no further action in the matter till the police questioned him on the 16th two days after he had sent the letter It seems that the appel lant did not expect the police to appear so soon and he thought it advisable to deny all knowledge about the lady he had taken to the hospital by telling the police that he did not know her The inference drawn from these two pieces of conduct by the Courts below is against the appellant and we also agree We have already stated that from then onwards the 477 appellant did not care to enquire from the hospital authorities as to what had happened to his patient s dead body and whether it had been disposed Of or not He also did not go to Bombay nor did he inform Dr Sathe about the cancellation of the appointment In his examination he however stated that he attempted to telephone to Dr Sathe but could not get through as the instrument was engaged on each occasion One expects however that he would have in the ordinary course written a letter of apology to Dr Sathe because he must have been conscious of the fact that he had kept the Specialist waiting for this appointment but he did not It is said that the appellant need not have taken this appointment and could have told a lie to Laxmibai but the appointment with Dr Sathe had to be real because if the plan failed Laxmibai would have been most surprised why she was brought to Bombay With this ends the phase of events resulting in the death of Laxmibai We shall deal with the events in the hospital later but we pursue the thread of the appellant s conduct Prior to the fateful journey Laxmibai had passed two documents to the appellant They are Exs 285 and 286 By the first Laxmibai intimated the Bank of Maharashtra Poona that she was going to withdraw in the following week from her Savings Bank account a sum of money between Rs 1000 and Rs 5000 The other document was a bearer cheque for Rs 5000 also signed by Laxmibai but written by the appellant The appellant presented the first on November 17 after writing the date November 15 on it and the second on November 20 after writing the date November 19 and received payment Prior to this on November 12 1956 when Laxmibai was alive and in Poona he had presented to the Bank of Maharashtra a dividend warrant for Rs 2607 6 0 to Laxmibai s account writing her signature himself This was hardly necessary if he was honest The signature deceived the Bank and it is obvious that he was a consummate forger even then Of course he put the money into Laxmibai s account but he had to if he was to draw it out again on the strength of these 61 478 two documents The question is can we say that he was honest on November 12 1956 The answer is obvious His dishonest intentions were therefore fully matured even before he left Poona Thereafter the appellant converted all the property of Laxmibai to his own use He removed the movables in her rooms including the pots and pans furniture clothes radio share scrips and so on to his own house He even went to the length of forging her signature on securities transfer deeds letters to banks and companies and even induced a lady magistrate to authenticate the signature of Laxmibai for which he obtained the services of a woman who to say the least personated Laxmibai So clever were the many ruses and so cunning the forgeries that the banks companies and indeed all persons were completely deceived It was only once that the bank had occasion to question the signature of Laxmibai but the appellant promptly presented another document purporting to be signed by Laxmibai which the bank accepted with somewhat surprising credulity The long and short of it is that numerous persons were imposed upon including those who are normally careful and suspicious and the appellant by these means collected a sum of no less than Rs 26000 which he disposed of in various ways the chief among them being the opening of a short term deposit account in the name of his wife and himself and crediting some other amounts to the joint names of his brother BC Lagu and himself We do not enter into the details of his many stratagems for two reasons Firstly because all this conduct has been admitted before us by his counsel and next because he has received life imprisonment on charges connected with these frauds Suffice it to say that if the appellant were to be found guilty of the offence sufficient motive would be found in his dealings with the property of this unfortunate widow after her death If murder there wasit was to facilitate the action which he took regarding her property If the finding of his guilt be reached then his subsequent conduct would be a part of a very deepseated plan beginning almost from the time when he 479 began to ingratiate himself into the good opinion of the lady The fact however remains that all this conduct cannot avail the prosecution unless it proves conclusively some other aspects of the case We cannot however overlook one or two other circumstances which are part of this conduct We have already stated briefly that the appellant cause all persons to believe that Laxmibai was alive and living at Rathodi as the happily married wife of one Joshi Both Joshi and Rathodi were equally fictitious In this connection the pleader the son the friends and the relations of Laxmibai were receiving for months after her death letters and communications purporting to be signed by her though written at the instance of the appellant by persons who have come and deposed before the Court to this fact These letters were all posted in R M section vans and the prosecution has successfully proved that they were not posted in any of the regular post offices in a town or village These letters show a variety of details and intimacies which made them appear genuine except for the handwriting and the signature of Laxmibai For a time people who received them though suspicious took them for what they were worth and it appears that they did not worry very much about the truth It has now been successfully proved by the prosecution and admitted by the appellant s counsel before us that these letters were all sent by the appellant with the sole object of keeping the people in the dark about the fact of death so that the appellant might have time to deal with the property at leisure The appellant asserts that he thought of this only after the death of Laxmibai It seems somewhat surprising that the appellant should have suddenly gone downhill into dishonesty so to speak at a bound The maxim is very old that no one becomes dishonest suddenly nema fuit repente turpissimus What inference can be drawn from his conduct after the death of Laxmibai is a matter to be considered by us And in this connection we can only say at this stage that if some prior conduct is connected intrinsically with conduct after death then the motive of the appellant would be very clear indeed 480 We now pass on to the evidence of what happened in the hospital and the total medical evidence on the cause of death This evidence has to be considered from different angles Much of it relates to the condition of Laxmibai and the treatment given to her but other parts of it relate to the conduct of the appellant and the information supplied by him There is also further evidence about the disposal of the body and the enquiries made into the cause of death These must be dealt with separately For the present we shall confine ourselves to the pure medical aspect of the case of Laxmibai during her short stay in the hospital When Laxmibai was admitted in the hospital Dr Ugale PW18 the Casualty Medical Officer was in charge He made a preliminary examination and recorded his impressions before he sent the patient to Ward No 12 He obtained from the appellant the history of the attack and it appears that all that the appellant told him was Patient suddenly became unconscious in train while coining from up country History of similar attacks frequently before It also appears that the appellant told him that the lady was liable to hysterical fits and that was set down by Dr Ugale as a provisional diagnosis So much of Dr Ugale s evidence regarding the health of Laxmibai as given by the appellant Now we take up his own examination According to Dr Ugale there were involuntary movements of the right hand which he noticed only once Only the right hand was moving He found corneal reflex absent Pupils were normal and reacting to light So far as central nervous system and respiration were concerned he detected nothing abnormal According to him there was no evidence of a hysterical fit and he stated that he queried that provisional diagnosis which according to him was supplied by the appellant According to Dr Ugale the name of the patient was given as lndumati Paunshe The patient was then made over to the care of Dr Miss Aneeja P W 19 Dr Miss Aneeja was then a raw Medical Graduate having passed the MBBS in June 1956 She was working as the House Physician 481 and was in charge of Ward No 12 She was summoned from her quarters to the Ward at 6 15 am and she examined Laxmibai We leave out of account again the conversation bearing upon the conduct of the appellant which we shall view subsequently He told her also about the sudden onset of unconsciousness and that there was a history of similar attacks before We are concerned next with the result of the examination by Dr Miss Aneeja bearing in mind that she was not a very experienced physician She found pulse 100 temperature 99 5 respiration 20 The skin was found to be smooth and elastic nails conjunctiva and tongue were pink in colour lymphatic glands were not palpable and bones and joints had nothing abnormal in them The pupils of the eyes were equal but dilated and were not then reacting to light She found that up to the abdomen and the sphincter the reflexes were absent The reflexes at knee and ankle were normal but the plantar reflex was Babinsky on one foot and there was slight rigidity of the neck It appears that Laxmibai was promptly given a dose of a stimulant and oxygen was started Dr Miss Aneeja also stated that she gave an injection of insulin 40 units immediately Much dispute has arisen as to whether Dr Miss Aneeja examined the urine for sugar albumin and acetone before starting this treatment It is clear however from her testimony that no blood test was made to determine the level of sugar in the blood A lumbar puncture was also made by Dr Miss Aneeja and the cerebro spinal fluid was sent for chemical analysis That report is available and the fluid was normal According to Dr Miss Aneeja the Medical Registrar who she says was Dr Saify recommended intravenous injection of 40 units of insulin with 20 CC of glucose which were administered According to her Laxmibai was also put on glucose intragastric drip Dr Miss Aneeja stated that the urine was examined by her three times and in the first sample sugar and acetone were present in quantities The first examination according to her was at 6 30 am the next at 8 30 am and the last at 11 am She stated that she 482 had used Benedict test for sugar and Rothera s test for acetone In all the examinations according to her there was no albumin present Dr Miss Aneeja also claims to have phoned to Dr Variava the Honorary Physician at 6 45 or 7 am and consulted him about the case According to her Dr Saify the Registrar of the Unit visited the Ward at 8 30 am and wrote on the case papers that an intravenous injection of 40 units of insulin with 20 CC of glucose should be administered According to her Dr Variava visited the Ward at 11 am and examined Laxmibai but the patient expired at 11 30 am We do not at this stage refer to the instructions for postmortem examination left by Dr Variava which were noted on the case papers because that is a matter with regard to the disposal of the dead body and we shall deal with the evidence in that behalf separately The evidence of Dr Miss Aneeja shows only this much that she was put in charge of this case examined urine three times and finding sugar and acetone present she started a treatment by insulin which was also supplemented by administration of glucose intravenously as well as by intragastric drip Apart from one dose of stimulant given in the first few minutes no other treatment beyond administration of oxygen was undertaken She had also noted the observations of the reflexes and the condition of the patient as they appeared to her on examination There is a considerable amount of contradiction between the evidence of Dr Miss Aneeja and that of Dr Variava as to whether acetone was found by Dr Miss Aneeja before Dr Variava s visit According to the learned Judges of the Court below the first urine examination deposed to by Dr Miss Aneeja and said to have been made at 6 30 am was never performed The other two examinations were made as the urine chart exhibit 127 shows It is however a question whether they were confined only to sugar and albumin but did not include examination for acetone We shall discuss this point after we have dealt with the evidence of Dr Variava 483 Dr Variava PW 21 was the Honorary Physician and was in charge of this Unit According to him he went on his rounds at 11 am and examined Laxmibai from 11 am to 11 15 am He questioned Dr Miss Aneeja about the line of treatment and told her that she could not have made a diagnosis of diabetic coma without examining urine for acetone Dr Variava deposed that the entry regarding acetone on the case papers was not made when he saw the papers at 11 am He then asked Dr Miss Aneeja to take by catheter a sample of the urine and to examine it for acetone Dr Miss Aneeja brought the test tube with urine in it which showed a light green colour and Dr Variava inferred from it that acetone might be present in traces According to Dr Variava Laxmibai s case was not one of diabetic coma and he gave two reasons for this diagnosis namely that diabetic coma never comes on suddenly and that there are no convulsions in it as were described by Dr Ugale Dr Variava also denied that the phone call to him was made by Dr Miss Aneeja Dr Variava stated that before he left the Ward he told Dr Miss Aneeja that he was not satisfied that the woman had died of diabetic coma and instructed her that postmortem examination should be asked for In connection with the evidence about the examination of the urine we have to see also the evidence of Marina Laurie nurse PW 59 who stated how the entries in the urine chart came to be made It may be pointed out that the urine chart showed only two examinations for sugar at 8 30 am and 11 am and not the one at 6 30 am The entry about that was made on the case papers under the head treatment by Dr Miss Aneeja and it is the last entry I acetone which Dr Variava stated was not on the papers at the time he saw them Indeed Dr Variava would not have roundly questioned Dr Miss Aneeja about the examination for acetone if this entry had been there and Dr Miss Aneeja admits a portion of Dr Variava s statement when she says that she examined the urine on Dr Variava s instructions and 484 brought the test tube to him in which the urine was of a light green colour Now the urine chart does not show an examination of the urine at 6 30 am According to Dr Miss Aneeja she examined the urine carried the impression of colour in her mind and noted the result on the case papers She was questioned why she adopted the unusual course but stated that it often happened that the urine chart was not prepared and the result was not taken to the case papers However it be Dr Variava is quite positive that the entry about acetone did not exist on the case papers and an examination of the original shows differences in ink and pen which would not have been there bad all the three items been written at the same time It also appears that even at 8 30 am the urine was examined for sugar only because the entry in the urine chart shows brick red colour which is the resulting colour in Benedict test and not in Rothera s test Similarly at II am the urine chart shows only a test for sugar because the light green colour is not the resulting colour of Rothera s test but also of the Benedict test Indeed Dr Variava was also shown a test tube containing the urine of slight greenish colour and his own inference was that acetone might be present in traces There is thus nothing to show that Dr Miss Aneeja embarked upon a treatment for diabetic coma after ascertaining the existence of acetone All the circumstances point to the other conclusion namely that she did not examine the urine for acetone and that seems to be the cause of the questions put by Dr Variava to her We have no hesitation therefore in accepting Dr Variava s evidence on this part of the case which is supported by the evidence of the course the urine chart and the interpolation in the case papers From all that we have said it is quite clear that the treatment given to her for diabetic coma was based on insufficient data There was also no Kussmaul breathing Root White Diabetes Mellitus p 118 her breathing was 20 per minute which was normal Nor was there any sign of dehydration 485 because the skin was smooth and elastic and the Babinsky sign was a contra indication of diabetic coma This is borne out by the diagnosis of Dr Variava himself who appears positive that Laxmibai did not suffer from diabetic coma and is further fortified by the reasons given by Dr H Mehta PW 65 to whose evidence we shall have occasion to refer later Two other doctors from the hospital were examined in connection with Laxmibai s stay The first was Dr J C Patel who was then the Medical Registrar of Unit No 1 It seems that Dr Saify the permanent Medical Registrar was on leave due to the illness of his father and Dr J C Patel was looking after his Unit Dr J C Patel went round with Dr Variava at 11 am and in his presence Dr Variava examined Laxmibai He has no contribution to make because he says he does not remember anything The only piece of evidence which he has given and which is useful for our enquiry is that in the phone book exhibit 323 in which all calls are entered no call to Dr Variava on the morning of the 13th was shown The evidence of Dr J C Patel is thus useless except in this little respect The other doctor Dr Hiralal Shah P W 72 was the Registrar of Unit No 2 After Laxmibai entered the hospital Dr Miss Aneeja sent a call to him and he signed the call book exhibit 322 Dr Hiralal Shah pretended that he did not remember the case He stated that if he was called he must have gone there and examined the patient but he stated in the witness box that he did not remember anything All the three doctors Dr Miss Aneeja Dr Patel and Dr Hiralal Shah denied having made the entry Insulin 40 units 1 V with 20 C C glucose Dr Miss Aneeja says that it was written by Dr Saify who as we shall show presently was not present in Bombay at all on that day We do not propose to deal with the cause of the death before adverting to the findings of Dr Jhala PW 66 who performed the autopsy and Dr H section Mehta P W 65 to whom all the case papers of Laxmibai were handed over for expert opinion Dr Jhala performed the postmortem operation on November 23 62 486 and he was helped by his assistants Though the body was well preserved and had been kept in the air conditioned morgue there is no denying the fact that 10 days had passed between the death and the postmortem examination The findings of Dr Jhala were that the body and the viscera were not decomposed and that an examination of the vital organs could be made Dr Jhala found in the stomach 4 oz of a pasty meal and ozof whitish precipitate in the bladder He did not find any other substance which could be said to have been introduced into the system He examined the brain and found it congested There were no marks of injury on the body the lungs were also congested and in the upper lobe of the left lung there was a tubercular focus which in his opinion was not sufficient to cause death ordinarily He also found Atheroma of aorta and slight sclerosis of the coronary He stated that the presence of the last meal in the stomach indicated that there was no vomitting He found no pathological lesion in the pancreas the kidney the liver and any other internal organ He gave the opinion after the receipt of the Chemical Analyser s report that death could have occurred due to diabetic coma It must be remembered that Dr Jhala was not out to discover whether any offence had been committed He was making a postmortem examination of a body which under the Coroner s order had been handed over to the medical authorities with a certificate from a hospital that death was due to diabetic coma It was not then a medico legal case the need for postmortem had arisen because the peon had noticed certain marks on the neck which had caused some suspicion After discovering that the mark on the neck was a postmortem injury all that he had to do was to verify whether the diagnosis made by the GT Hospital that death was due to diabetic coma was admissible He examined the body found no other cause of death and the Chemical Analyser not having reported the administration of poison he accepted the diagnosis of the G T Hospital as correct Dr Jhala however stated that there were numerous poisons which could 487 not be detected on chemical analysis even in the case of normal healthy and undecomposed viscera He admitted that his opinion that death could have occurred due to diabetic coma was an inaccurate way of expressing his opinion According to him the proper way would have been to have given the opinion death by diabetes with complications As we have said all these papers were placed before Dr H section Mehta for his expert opinion It is to his evidence we now turn to find out what was the cause of death of Laxmibai In the middle of March 1958 Dr Mehta was consulted about this case and he was handed over copies of all the documents we have referred to in connection with the medical evidence together with the proceedings of the Coroner s inquest at Bombay According to Dr Mehta opinion was sought from him about the cause of death of Indumati Paunshe and whether it was from diabetic coma any other disease or the administration of a poison Dr Mehta was categorical that it was not due to diabetic coma He was also of the opinion that no natural cause for the death was disclosed by the autopsy and according to him it was probably due to the administration of some unrecognisable poison or a recognisable poison which due to the lapse of time was incapable of being detected by analysis He gave several reasons for coming to the conclusion that Laxmibai did not suffer from diabetic coma Each of his reasons is supported by citations from numerous standard medical authorities on the subject but it is unnecessary to cite them once again According to him the following reasons existed for holding that Laxmibai did not suffer from diabetic coma 1 Convulsion never occur in diabetic coma per se According to Dr Mehta the involuntary movements described by Dr Ugale must be treated as convulsions or tremors We are of opinion that Dr Ugale would not have made this note on the case papers if he had not seen the involuntary movements No doubt these involuntary movements had ceased by the time the patient was carried to Ward No 12 because Dr Miss Aneeja made a note that they were not observed in 488 the Ward But Dr Ugale was a much more experienced doctor than Dr Miss Aneeja and it is possible that Dr Miss Aneeja did not notice the symptoms as minutely as the Casualty Medical Officer 2 Diabetic coma never occurs all of a sudden and without a warning There are premonitary signs and symptons of prodromata In the case there is no evidence to show how Laxmibai became unconscious We have however the statement of the appellant made both to Dr Ugale and Dr Miss Aneeja that the onset was sudden Dr Mehta was cross examined with a view to eliciting that a sudden onset of diabetic coma was possible if there was an infection of any kind A suggestion was put to him that if the patient suffered from Otitis Media then sometimes the un conciousness came on suddenly It may be pointed out that the appellant in his examination stated that on the day in question Laxmibai had a temperature of 100 degrees laryngitis pharyngitis and complained of pain in the ear That statement was made to bring his defence in line with this suggestion Dr Mehta pointed out that Dr Jhala had opened the skull and had examined the interior organs but found no pathological lesion there According to Dr Mehta Dr Jhala would have detected pus in the middle ear if Otitis Media had existed The fact that no question suggesting this was put to Dr Jhala shows that the defence is an afterthought to induce the Court to hold that death was due to diabetic coma or in other words to natural causes We are inclined to accept the evidence of Dr Jhala that he and his assistants did not discover any pathological lesion in the head or the brain Otitis Media would have caused inflammation of the Eustachian tube and pus would have been present No such question having been put we must hold that there was no septic focus which might have induced the sudden onset of diabetic coma It was also suggested to Dr Mehta that there was a tubercular infection and sometimes in the case of tubercular infection diabetic coma suddenly supervened The tuberculosis in this case was not of such severity as to have caused this Dr Jhala referred 489 to the septic focus in the apex of the left lung but he stated that it was riot sufficient to have caused the death of Laxmibai Illustrative cases of sudden diabetic coma as a result of tubercular infection were not shown and the condition of Laxmibai as deposed to by witnesses right up to 9 pm on the night of November 12 1956 does not warrant the inference that she had diabetic coma suddenly as a result of this infection 3 Dr Mehta also stated from the case papers maintained by the appellant from February 15 1956 to November 12 1956 that during that time Laxmibai did not appear to have suffered from any severe type of acidosis The appellant in his examination in Court stated that Laxmibai was prone to suffer from acidosis and that he had treated her by the administration of Soda Bi carb In the case papers Soda Bicarb has been administered only in about 8 to 10 doses varying between 15 grains to a dram It is significant that on most of the occasions it was part of a Carminative mixture The acidosis if any could not have been so severe as to have been corrected by such a small administration of Soda Bi carb because the acidosis of diabetes is not the acidity of the stomach but the formation of fatty acids in the system Such a condition as the books show may be treated by the administration of Soda Bi carb but in addition to some other specific treatment Joslin Root White Treatment of Diabetes Mellitus p 397 4 A patient in diabetic coma is severely dehydrated Root White Diabetes Mellitus p 118 We have already pointed out that there was no dehydration because the skin was soft and elastic and the tongue was pink The eye balls were also normal and were not soft as is invariably the case in diabetic coma Dr Mehta has referred to all these points 5 Nausea and vomiting are always present in true diabetic coma There is nothing to show either from her clothes or from the smell of vomit in the mouth or from any other evidence that Laxmibai had vomitted in the train Dr Jhala who performed the 490 postmortem examination had stated that Laxmibai could not have vomitted because in her stomach 4 oz of pasty meal was found The same fact is also emphasised by Dr Mehta 6 In diabetic coma there will befall of blood pressure rapid pulse there will be Kussmaul breathing or air hunger The respiration of Laxmibai was found by Dr Ugale and Dr Miss Aneeja to be normal The temperature chart in the case exhibit 129 gives in parallel columns the respiration corresponding to a particular temperature and the temperature of 995 degrees Fahrenheit found by Dr Miss Aneeja corresponds to respiration at 20 times per minute Dr Variava Dr Ugale or Dr Miss Aneeja also did not say anything about the Kussmaul breathing and the pulse of 100 per minute according to Dr Mehta was justified by the temperature which Laxmibai then had Indeed according to Dr Mehta in diabetic coma the skin is cold and there was no reason why there should be temperature According to Dr Mehta there was no evidence of any gastric disturbance because the condition of the tongue was healthy Dr Mehta also pointed out that the Extensor reflex called the Babinsky sign was not present in diabetic coma while according to Dr Miss Aneeja it was present in this case Dr Mehta then referred to the examination of the urine for sugar and acetone and stated that the examination for sugar was insufficient to determine the presence of Ketonuria which is another name for the acidosis which results in coma We have already found that the examination for acetone was not made and there was no mention of acetone breath either by Dr Ugale or by Dr Miss Aneeja which would have been present if the acidosis was so advanced Root WhiteDiabetes Mellitus p 118 8 Lastly the examination of cerebro spinal fluid did not show any increase of sugar and no affection in the categories of meningial irritation was disclosed by the chemical analysis of the fluid Physician s Hand book 4th Edn pp 115 120 The neck rigidity which was noticed by Dr Miss Aneeja did not have therefore 491 any connection with such irritation and it is a question whether such a slight neck rigidity existed at all These reasons of Dr Mehta are prefectly valid They have the support of a large number of medical treatises to which he has referred and of even more which were referred to us during the arguments all which we find it unnecessary to quote We accept Dr Mehta s testimony that diabetic coma did not cause the death of Laxmibai It is significant that the case of the appellant also has changed and he has ceased to insist now that Laxmibai died of diabetic coma The treatment which was given to Laxmibai would have if diabetic coma had existed at least improved her condition during the 5 hours that she was at the hospital Far from showing the slightest improvement Laxmibai died within 5 hours of her admission in the hospital and in view of the contra indications catalogued by Dr Mehta and accepted by us on an examination of the medical authorities we are firmly of opinion that death was not due diabetic coma We now deal with events that took place immediately after Laxmibai expired We have already shown that at that time Dr Variava was present and was questioning Dr Miss Aneeja about her diagnosis of diabetic coma Before Dr Variava left the Ward he told Dr Miss Aneeja that he was not satisfied about the diagnosis and that a postmortem examin ation should be asked for This endorsement was in fact made by Dr Miss Aneeja on the case papers and the final diagnosis was left blank Dr Miss Aneejia says that she left the Ward at about 11 30 am and was absent on her rounds for an hour then she returned to the Ward from her quarters at about 1 pm and went to the office of Dr Mouskar the Resident Medical Officer According to her she met Dr Saify the Registrar at the door and he had the case papers in his hands Dr Saify told her that the Resident Medical Officer thought that there was no need for a postmortem examination as the patient was treated in the hospital for diabetic coma Dr Saify ordered Dr Miss Aneeja to cancel the endorserment about 492 postmortem and to write diabetic coma as the cause of death which she did in Dr Saify s presence This is Dr Miss Aneeja s explanation why the postmortem was not made though ordered by Dr Variava Dr Mouskar s version is quite different According to him the case papers arrived in his office at 1 pm He had seen the endorsement about the postmortem and the fact that the final diagnosis had not been entered in the appropriate column Dr Mouskar admitted that he did not proceed to make arrangements for the postmortem examination According to him the permission of the relatives and the Coroner was necessary He also admitted that he did not enquire from the Honorary Physician about the need for postmortem examination He was thinking he said of consulting the relatives and the person who had brought Laxmibai to the hospital Dr Mouskar sent a telegram at 2 pm to the appellant which we have quoted earlier He explained that he did not mention the postmortem examination because he was waiting for the arrival of some person connected with Laxmibai He further stated that between 4 and 5 pm he asked the police to remove the body to the J J Hospital morgue and to preserve it and sent a copy of his requisition to the Coroner According to him on the 15th the Coroner s office asked the hospital for the final diagnosis in the case He stated that he asked one out of the three Honorary Physician the Registrar or the House Pbysician about the final diagnosis though he could not say which one He had sent the papers through the call boy for writing the final diagnosis and he received the case papers from the Unit with the two corrections namely the cancellation of the requisition for postmortem examination and the entry of diabetic coma as the final diagnosis He denied that he had any talk with Dr Saify regarding the postmortem examination Itwould appear from this that there are vital differences in the versions of Dr Miss Aneeja and Dr Mouskar The first contradiction is the date on which the case papers were corrected and the second about Dr SaifY s intervention in the matter Dr SaifY 493 fortunately for him had obtained leave orders and had left Bombay on November 8 1956 for Indore where his father was seriously ill He was in fact detained at Indore because his father suffered from an attack of coronary thrombosis and he had to extend his leave All the relevant papers connected with his leave have been produced and it seems that Dr Saify s name was introduced by Dr Miss Aneeja either to avoid taking responsibility for correction on her own of the papers or to shield some other person who had caused her to make the corrections Here the only other person who could possibly have ordered her was the Resident Medical Officer Dr Mouskar who at 1 pm had received the papers and had seen the endorsement about the postmortem examination Dr Mouskar s explanation that he sent the telegram to the appellant for the removal of the body without informing him about the postmortem examination is too ingenious to be accepted by any reasonable person Dr Mouskar could not ordinarily countermand what the Honorary Physician had said without at least consulting him which he admits he did not do This is more so if it was only a matter of the hospital s reputation Whether the corrections were made by Dr Miss Aneeja in the wards when the call boy took the papers to her a most unusal course for Dr Mouskar to have adopted or whether they were made by Dr Miss Aneeja in the office of Dr Mouskar to the door of which she admits she had gone the position remains the same Dr Miss Aneeja no doubt told lies but she did so in her own interest She could not cancel the requisition about postmortem examination on her own without facing a grave charge in which Dr Mouskar would have played a considerable part The fact that this correction did not trouble Dr Mouskar and that his dealings with the body were most unusual points clearly to its being made at his instance Dr Miss Aneeja invented the story about Dr Saify as a last resort knowing that unless she named somebody the responsibility would be hers The corrections were made at the instance of Dr Mouskar because Dr Mouskar admits that he sent the papers to the 63 494 Ward for final diagnosis in the face of the endorsement for postmortem examination and Dr Miss Aneeja admits making the corrections at the door of Dr Mouskar s office In our opinion both of them are partly correct Dr Mouskar made the first move in getting the papers corrected and Dr Miss Aneeja corrected them not at the door of the office because there was no Dr Saify there but in the office though she had not the courage to name Dr Mouskar as the person who had ordered the correction Dr Mouskar s telegram and his sending the body to another morgue without the postmortem examination show only too clearly that it was he who caused the change to be made It is also a question whether the correction about acetone was not also made simultaneously We do not believe that the corrections were made as late as November 15 because his telegram for the removal of the dead body and its further removal to the J J Hospital would not fit in with the endorsement for postmortem examination on the case papers Now the question is not whether Dr Mouskar made the correction or Dr Miss Aneeja but whether the appellant had anything to do with it Dr Miss Aneeja stated that the appellant was present till the visit of Dr Variava was over and this is borne out by the reply of the appellant because in the inland letter he mentioned the time of the death which the telegram did not convey to him and which he could have only known if he was present in the hospital We believe Dr Miss Aneeja when she says that the appellant was present at the hospital and the circumstances of the case unerringly point to the conclusion that he knew of the demand for a postmortem examination Though Dr Mouskar and the appellant denied that they met there is reason to believe that the appellant knowing of the postmortem examination would not go away without seeing that the postmortem examination was duly carried out or was given up Dr Mouskar and the appellant both admitted that they were together in the same class in 1934 in the S P College Poona though both of them denied that 495 they were acquainted with each other Dr Mouskar stayed in Poona from 1922 to 1926 1931 to 1936 and 1948 to 1951 The appellant was practising at Poona as a doctor and it is improbable that they did not get acquainted during Dr Mouskar s stay belonging as they do to the same profession Dr Mouskar further tried to support the appellant by saying that at 1 pm when he saw the case papers the entry about acetone was read by him He forgot that in the examinationin chief he had stated very definitely that he had not read the case papers fully and had only seen the top page When he was asked for his explanation he could not account for his conduct in the witness box and admitted his mistake There are two other circumstances connected with Dr Mouskar which excite considerable suspicion The first is that he mentioned hysterical fits as the illness from which Laxmibai suffered when Dr Ugale had questioned it and postmortem had been asked for to establish the cause of death The next is that the call book of the hospital for the period was not produced by him as long as he was in office When he retired the call book was brought in by his successor and it established the very important fact that it was not Dr Saify the Registrar who was summoned but Dr Shah who had also signed the call book in token of having received the call Dr Mouskar s conduct as the Resident Medical Officer in having the postmortem examination cancelled was a great lapse and it is quite obvious to us that the finding by the two Courts below that this was done at the request of the appellant is the only inference possible in the case The alternative suggestion in the argument of the appellant s counsel that Dr Mouskar thought that Dr Variava was making a mountain out of a mole hill and that the reputation of the hospital was involved does not appeal to us because if that had been the motive Dr Mouskar would have talked to Dr Variava and asked him to revise his own opinion The cancellation of the requisition for postmortem examination came to Dr Variava as a surprise because he stated that he had heard nothing about it 496 From the above analysis of the evidence we accept the following facts The appellant was present in the hospital till the death of Laxmibai and in his presence Dr Variava examined Laxmibai and questioned the diagnosis of Dr Miss Aneeja and gave the instructions for the postmortem examination Dr Variava s stay was only for 15 minutes and at the end of it Laxmibai expired The statement of the appellant that he caught the 10 30 train from Bombay to Poona because he was asked by the Matron to leave the female ward and that he was going back to get a female attendant from Poona is entirely false He took no action about a female attendant either in Bombay or in Poona and he could not have left by the 10 30 train if he was present in the hospital till 11 30 am We are also satisfied that Dr Miss Aneeja did not cancel the endorsement about the postmortem examination on her own responsibility She was ordered to do so We are also satisfied that it was not Dr Saify who had given this order but it must have been Dr Mouskar who did so We are also satisfied that Dr Mouskar did not induce Dr Miss Aneeja to cancel the postmortem by sending the case papers through the call boy of her Ward but she was summoned to the office to the door of which she admits she had gone We are therefore in agreement with the two Courts below that Dr Mouskar caused these changes to be made and that Dr Miss Aneeja did not have the courage to name the Resident Medical Officer and lied by introducing the name of Dr Saify We are also satisfied that Dr Mouskar and the appellant were acquainted with each other not only when they were in College together but they must have known each other when Dr Mouskar was residing at Poona The cancellation of the postmortem examination was caused by the appellant because Dr Mouskar s explanation on this part of the case is extremely unsatisfactory and his failure to consult Dr Variava if it was only a hospital matter is extremely significant The appellant s immediate exit from the hospital and the telegram to him at Poona show that Dr Mouskar knew where the appellant was to be 497 found The telegram conveyed to the appellant that the postmortem was not to be held because it said that the body should be immediately removed Now the appellant as we have said took no action about Laxmibai s death and kept this information to himself He did not also arrange for the removal of the body He sent an inland letter which he knew would take a day or two to reach the hospital He knew that the body would be lying unclaimed at the hospital and that the hospital could not hold the body for ever without taking some action The appellant is a doctor He has studied in medical institutions where bodies are brought for dissection purposes and he must be aware that there is an Anatomy Act under which unclaimed bodies are handed over to Colleges after 48 hours for dissection He also knew that the cause of death would become more and more difficult to determine as time passed on and it is quite clear that the appellant was banking on these two circumstances for the avoidance of any detection into the cause of death He had also seen to it that the postmortem examination would not be made and he knew that if the body remained unclaimed then it would be disposed of in accordance with the Anatomy Act He wrote a letter which he knew would reach the hospital authorities and he named a fictitious brother who he said could not arrive before the 16th from Calcutta This delay would have gained him three valuable days between the death and any likely examination and if the body remained unclaimed then it was likely to be disposed of in the manner laid down in the Anatomy Act The anticipations of the appellant were so accurate that the body followed the identical course which he had planned for it and it is an accident that ten days later a postmortem examination was made because an observant peon noticed some mark on the neck which he thought was suspicious But for this it would have been impossible to trace what happened to Laxmibai because the hospital papers would have been filed the body dissected by medical students and disposed of and the relatives and friends kept in the dark about the whereabouts of Laxmibai by spurious letters 498 This brings us to another piece of conduct which we have to view When Laxmibai boarded the train she had a bedding and a bag with her which she was seen carrying at the Par by Patil P W 60 on the night she left Poona There is a mass of evidence that Laxmibai was in affluent circumstances and always wore on her person gold and pearl ornaments There is also evidence that she had taken Rs 50 from Virkar the night she travelled and presumbly she was carrying some more money with her because she had to consult a specialist in Bombay and money would be required to pay him When she reached the hospital in the company of the appellant she had no ornaments on her person no money in her possession and her bag and bedding had also disappeared As a matter of fact there was nothing to identify her or to distinguish her from any other indigent woman in the street There is no explanation which any reasonable person can accept as to what happened to her belongings It is possible that the bag and the bedding might have been forgotten in the hurry to take her to the hospital but her gold ornaments on her person could not so disappear The appellant stated that he noticed for the first time in the taxi that she had no ornaments on her person but there would be no need for him to notice this fact if Laxmibai started without any ornaments whatever In view of the fact that Laxmibai s entire property soon passed into the hands of the appellant it is reasonable to hold that he would not overlook the valuable gold and pearl ornaments in this context Further the absence of the ornaments and other things to identify Laxmibai rendered her anonymity complete in so far as the hospital was concerned unless information to that end was furnished by the appellant only In the event of Laxmibai s death in the hospital no complication would arise if she did not possess any property and the body would be treated as unclaimed if none appeared to claim it In addition to the stripping of the lady of her belongings the appellant took measures to keep her 499 identity a close secret No doubt he gave her name as Indumati but he added to it her maiden surname in a garbled form According to Dr Ugale the name given was Paunshe In every one of the other papers the name appears to have been corrected by the addition of some letter resembling Ilk but not in the case papers Dr Ugale swore that he had not heard the name Paunshe before though his mother tongue is Marathi and he is himself a Maharashtrian He therefore asked the appellant to spell the name and he was definite that the name was written as spelt by the appellant There is however other evidence coming from the appellant himself to show that he did not give the correct maiden surname of Laxmibai because in the letter he wrote to the hospital he only stated that there was an extra u in the name as entered in the papers but did not mention anything about k His solicitude about the name and its spelling in the case papers clearly shows that his mind even under the stress of these circumstances was upon one fact only that the name should remain either Paunshe or Panshe and not become Ponkshe Indeed one would expect the appellant to have given the name Laxmibai Karve or Indumati Karve instead of Indumati Ponkshe and much less Indumati Paunshe There must be some reason for the appellant choosing the maiden surname even if he gave the correct maiden name The reason appears to be this Either he had to say at the hospital that he did not know the name or he had to give some name If he said that he did not know the name it would have caused some suspicion and the matter would then have been entered in the emergency police case register This is deposed to by the doctors in the hospital By giving the name he avoided this contingency By giving a garbled name he avoided the identity if by chance that name came to the notice of some one who knew Laxmibai His intention can only be interpreted in the light of his subsequent conduct and the use to which be put this altered name We have already seen that he did the fact of death from every 500 one and wrote to people that the woman was alive He had two opportunities of correcting this name which he had noticed very carefully on the case papers The first was when he wrote the letter to the hospital in which he insisted that u should be omitted but did not add k The other was when on the 16th the police questioned him and he stated that he did not know who the woman was He also gave the age of the woman wrongly and perhaps deliberately see the correction and overwritings in the inland letter he wrote on November 14 1956 Immediately after the death of Laxmibai he misappropriated a sum of Rs 5000 by presenting two documents Exs 285 and 286 without disclosing to the Bank that the person who had issued the cheque was no more All this subsequent conduct gets tied to his conduct in giving the name as Indumati Paunshe or Panshe and it shows a foreknowledge of what was to happen to Indumati at the hospital It also shows a preparation for keeping the fact of her death hidden from others to facilitate the misappropriation of her property which as we know eventually took place starting from November 15 that is to say two days following her death No explanation worth considering exists why this name was given and the effort of the counsel for the appellant that he was probably on intimate terms with Laxmibai and chose to call her by her maiden name rather than her married name is belied by the fact that in every document in which the name has been mentioned by the appellant he has adderssed her as Laxmibai Karve and not as Indumati Ponkshe There is no evidence that this elderly lady was anything more than a foolishly trusting friend of this man who took advantage of her in every way Then there is the conduct of the appellant in not disclosing to the hospital authorities the entire case history of Laxmibai and the treatment which he had been giving her as her medical attendant Instead of telling the doctor all the circumstances of her health he told him that the woman was suffering from hysterical fits which fits according to the 501 evidence in the case did not recur after 1948 He also did not give any particulars of the onset of unconsciousness in the train Even the fact that Laxmibai had suffered from diabetes for some years was not mentioned and this shows that he was intent upon the medical attendants in the hospital treating the case from a scratch and fumbling it if possible To him it appears to us it was a matter of utter indifference what treatment was given to her an attitude which he continued to observe even after his patient had died In our opinion therefore the conduct at the hospital appears significantly enough to suggest that he anticipated that Laxmibai was doomed and he was intent upon seeing to it that no one but himself should know of her death and that a quiet disposal of her body should take place We may mention here one other fact and that is that the GT Hospital is situatted at a distance of 5 or 6 furlongs from the Victoria Terminus Station whereas the St George s Hospital is said to be only 50 feet away from the main entrance Why an unconscious woman was carried first on a stretcher and then in a taxi to this distant hospital when she could have been carried straight to the hospital on the stretcher itself is not explained There is of course this significant fact that at the St George s Hospital he would not have been able to pull his weight with the medical authorities which he was able to do with Dr Mouskar because of his acquaintance with him This choosing of the hospital is of a piece with the choosing of an inconvenient train which would make detection difficult arrival at the hospital when it would be closed except for emergency cases and the patient likely to be waited upon by a raw and inexperienced doctor in the early hours of the morning We however cannot say this too strongly because it is likely that Laxmibai herself chose to travel by a night train But the whole of the conduct of the appellant prior to the death of Laxmibai appears to be of a piece with his conduct after her death and we are satisfied that even before her entry into the hospital the appellant had planned this line of conduct 64 502 Our findings thus substantially accord on all the relevant facts with those of the two Courts below though the arrangement and consideration of the relevant evidence on record is somewhat different It is now necessary to consider the arguments which have been advanced on behalf of the appellant The first contention is that the essential ingredients required to be proved in all cases of murder by poisoning were not proved by the prosecution in this case Reference in this connection is made to a decision of the Allahabad High Court in Mst Gujrani vs Emperor 1 and two unreported decisions of this Court in Chandrakant Nyalchand Seth vs The State of Bombay2 decided on February 19 1958 and Dharambir Singh vs The State of Punjab 3 decided on November 4 1958 In these cases the Court referred to three propositions which the prosecution must establish in a case of poisoning a that death took place by poisoning b that the accused had the poison in his possession and c that the accused had an opportunity to administer the poison to the deceased The case in Dharambir Singh V The State of Punjab 3 turned upon these three propositions There the deceased had died as a result of poisoning by potassium cyanide which poison was also found in the autopsy The High Court had disbelieved the evidence which sought to establish that the accused had obtained potassium cyanide but held nevertheless that the circumstantial evidence was sufficient to convict the accused in that case This Court did not however accept the circumstantial evidence as complete It is to be observed that the three propositions were laid down not as the invariable criteria of proof by direct evidence in a case of murder by poisoning because evidently if after poisonidgthevictim the accused destroyed all traces of the body the first proposition would be incapable of being proved except by circumstantial evidence Similarly if the accused gave a victim something to eat and the victim died immediately on the ingestion of that food with symptoms of poisoning and 1 AIR 1933 All 394 2 Cr A No 120 Of 1957 3 Cr k No 98 of 1958 503 poison in fact was found in the viscera the requirement of proving that the accused was possessed of the poison would follow from the circumstance that accused gave the victim something to eat and need not be separately proved There have been cases in which conviction was maintained even though the body of the victim had completely disappeared and it was impossible to say except on circumstantial evidence whether that person was the victim of foul play including poisoning Recently this Court in Mohan vs State of U P 1 decided on November 5 1959 held that the proof of the fact of possession of the poison was rendered unnecessary because the victim died soon after eating pedas given by the accused in that case and he had not partaken any other food likely to contain poison In Dr Palmer s case 2 strychnine was not detected and the accused was convicted by the jury after Lord Chief Justice Campbell Cresswell J and Mr Baron Alderson concurring charged the jury that the discovery of the poison on autopsy was not obligatory if they were satisfied on the evidence of symptoms that death had been caused by the ministration of the strychnine The conduct of Palmer which was also significant was stressed inasmuch as he had attempted to thwart a successful chemical analysis of the viscera and had done suspicious acts to achieve that end In Dr Crippen s case 3 the conduct of the accusedafter the death of Mrs Crippen in making the friends and relatives believe that Mrs Crippen was alive was considered an incriminatory circumstance pointing to his guilt No doubt in Dr Crippen s case 3 the body was found and poison was detected but there was no proof that Dr Crippen had administered the poison to her that being inferred from his subsequent conduct in running away with Miss Le Neve In the second case of this Court the poison was availiable to the victim and it was possible that she had taken it to end an unhappy life The cases of this Court which were decided proceeded upon their own facts and though the three 1 Cr A No 108 of 1959 2 Notable Trials Series 3 Notable Trials Series 504 propositions must be kept in mind always the sufficiency of the evidence direct or circumstantial to establish murder by poisoning will depend on the facts of each case If the evidence in a particular case does of not justify the inference that death is the result of poisoning because of the failure of the prosecution to prove the fact satisfactorily either directly or by circumstantial evidence then the benefit of the doubt will have to be given to the accused person But if circumstantial evidence in the absence of direct proof of the three elements is so decisive that the Court can unhesitatingly hold that death was a result of administration of poison though not detected and that the poison must have been administered by the accused person then the conviction can be rested on it In a recent case decided in England in the Court of Criminal Appeal Regina vs Onufrejczyk 1 the body of the victim was not found at all And indeed there was no evidence that he had died much less was murdered The accused s conduct in that case which was held decisive was very similar to the conduct of the present appellant He was in monetary difficulties and the victim was his partner whom he wished to buy out but did not have the money to do so One fine day the partner disappeared and his body was not found and it was not known what had happened to him The activities of the accused after the disappearance of his partner were very remarkable To people who enquired from him about his partner he told all manner of lies as to how a large and dark car had arrived in the night and that three men bad carried off his partner at the point of a revolver To a sheriff s officer he stated that his partner had gone to see a doctor He also asked a lady to send him some sham registered letters and forged other documents Lord Chief Justice Goddard stated the law to be that in a trial for murder the fact of death could be proved by circumstantial evidence alone provided the jury were warned that the evidence must lead to one conclusion only and that even though there was no body or even trace of a body or any direct evidence as to 1 1955 1QB 388 505 the manner of the death of a victim the corpus delicti could be held to be proved by a number of facts which rendered the commission of the crime certain pertinent to remember that Lord Goddard observer during the course of argument that there was no virtue in the words direct evidence and added It would be going a long way especially these days when we know what can be done with acid to say that there cannot be a conviction without some proof of a body If you are right you have to admit that a successful disposal of the body could prevent a conviction It is obvious that Lord Goddard had in mind the case of John George Haigh 1 who as is notorious disposed of bodies by steeping them in acid bath destroying all traces It is in this context instructive to read a case from Now Zealand to which Lord Goddard also referred where the body of the victim was never found The King vs Horry 2 The statement of the law as to proof of corpus delicti laid down by GressonJ concurred in by Fair ACJ Stanton J and Hay J was approved by Lord Goddard with one slight change The statement of the law head note is as follows At the trial of a person charged with murder the fact of death is provable by circumstantial evidence notwithstanding that neither the body nor any trace of the body has been found and that the accused has made no confession of any participation in the crime Before he can be convicted the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for Lord Goddard did not agree with the words morally certain and stated that he would have preferred to say such circumstances as render the commission of the crime certain 1 Notable Trials Series 2 1952 NZLR 111 506 The same test has been applied by Wills in his Book on Circumstantial Evidence and the author has quoted the case of Donellan 1 where the conduct of Donellan in rinsing out a bottle in spite of the wife of the victim asking him not to touch those bottles was treated as a very significant evidence of guilt Butler J charged the jury that if there was a doubt upon the evidence of the physical witnesses they must take into their consideration all the other circumstances either to show that there was poison administered or that there was not and that every part of the prisoner s conduct was material to be considered Similarly in Donnall s case 2 Abbot J according to Wills in summing up said to the jury that there were two important questions first did the deceased die of poison and if they should be of opinion that she did then whether they were satisfied from the evidence that the poison was administered by the prisoner or by his means There were some parts of the evidence which appeared to him equally applicable to both questions and those parts were what related to the conduct of the prisoner during the time of the opening and inspection of the body his recommendation of a shell and the early burial to which might be added the circumstances not much to be relied upon relative to his endeavours to evade his apprehension His Lordship also said as to the question whether the deceased died by poison I in considering what the medical men have said upon the one side and the other you must take into account the conduct of the prisoner in urging a hasty funeral and his conduct in throwing away the contents of the jug into the chamber utensil In Rex vs Horry 3 where the entire case law in England was presented for the consideration of the Court it was pointed out by the Court that there was no rule in England that corpus delicti must be proved by direct evidence establishing the death of the person 1 Gurneys Rep 1781 2 3 1952 NZLR 111 507 and further the cause of that death Reference was made to Evans vs Evans1 where it was ruled that that corpus delicti might be proved by direct evidence or by irresistible grounds of presumption In the same case it has been pointed out that in New Zealand the Court upheld numerous convictions where the body of the victim was never found The rule of law stated by Sir Matthew Hale in Pleas of the Crown Vol 2 p 290 that I would never convict any person of murder or manslaughter unless the fact were proved to be done or at least the body found dead was not accepted in this and other bases Lord Goddard also rejected the statement as one of universal application in the case to which we have already referred The case of Mary Ann Nash2 is illustrative of the proposition that even though the cause of death may not appear to be established by direct evidence the circumstances of the case may be sufficient to infer that a murder has been committed In that case the prisoner had an illegitmate son 5 years old There was evidence to show that the mother desired to put the child out of her way One day in June 1907 the mother left the house and returned without the child She made several statements as to what had happened to the child which were found to be untrue As late as April 1908 the body of a child was discovered in a well Decomposition had so far advanced that even the sex of the child could not be determined There was nothing therefore to show whether death was natural or violent or whether it had occurred before or after the body was put into the well The case was left to the jury On appeal it was contended that there being no proof how death took place the judge should not have left the case to the Jury but ought to have withdrawn it Lord Chief Justice delivering the judgment of the Court of Appeal referred to the untrue statements of the prisoner about the wherebouts of the child and observed as follows All these statements were untrue She bad an object in getting rid of the child and if it had been 1 161 ER 466 491 2 508 lost or met with an accidental death she had every interest in saying so at once It is said there is no evidence of violent death but we cannot accept that Mr Goddard cannot have meant that there must be proof from the body itself of a violent death In view of the facts that the child left home well and was afterwards found dead that the appellant was last seen with it and made untrue statements about it this is not a case which could have been withdrawn from the jury There is no difference between a trial with the help of the jury and a trial by a Judge in so far as the appraisement of evidence is concerned The value of the evidence in each case must necessarily be the same If the case of Mary Ann Nash 1 could be left to the jury here too the case has been decided by the two Courts below concurrently against the appellant on evidence on which theY could legitimately reach the conclusion whether an offence of murder had been established or not A case of murder by administration of poison is almost always one of secrecy The poisoner seldom takes another into his confidence and his preparations to the commission of the offence are also secret He watches his opportunity and administers the poison in a manner calculated to avoid its detection The greater his knowledge of poisons the greater the secrecy and consequently the greater the difficulty of proving the case agaisnt him What assistance a man of science can give he gives but it is too much to say that the guilt of the accused must in all cases be demonstrated by the isolation of the poison though in a case where there is nothing else such a course would be incumbent upon the prosecution There are various factors which militate against a successsful isolation of the poison and its recognition The discovery of the poison can only take place either through a postmortem examination of the internal organs or by chemical analysis Often enough the diagnosis of a poison is aided by the information which may be furnished by relatives and friends as to the symptoms 1 161 E R 466 491 509 found on the victim if the course of poison has taken long and others have had an opportunity of watching its effect Where however the poision is administered in secrecy and the victim is rendered unconscious effectively there is nothing to show how the deterioration in the condition of the victim took place and if not poison but disease is suspected the diagnosis of poisoning may be rendered difficult In Chapman s case1 the victim Maud Marsh was sent to Guy s Hospital where the doctors diagnosed her condition to be due to various maladies including cancer umatism and acute dyspepsiaIt is clear that doctors can be deceived by thesymptoms of poison into believing tHat they have a genuine case of sickness on hand In Dr Palmer s case 2 two medical witnesses for the defence diagnosed the case from the symptoms as being due to Angina Pectoris or epilepsy with tetanic complications The reason for all this is obvious Lambert in his book The Medico Legal Post Mortem in India pp 9699100 has stated that the pathologist s part in the diagnosis of poisoning is secondary and has further observed that several poisons particularly of the synthetic hypnotics and vegetable alkaloids groups do not leave any characteristic signs which can be noticed on postmortem examination See Modi s Medical Jurisprudence and Toxicology 13th Edn pp 450 451 and Taylor s Principles and Practice of Medical Jurisprudence Vol llp 229 The same is stated by Otto Saphir in his book Autopsy at pp 71 and 72 In Dreisbach s Handbook of Poisons 1955 it is stated that pathological findings in deaths from narcotic analgesics are not characteristic He goes further and says that even the laboratory findings are non contributory The position of the pathologist who conducts a postmortem examination has been summed up by Modi in Medical Jurisprudence and Toxicology 13th edn p 447 as follows In order to make a probable guess of the poison and to look for its characteristic postmortem appearances it is advisable that a medical officer before 1 Notable Trials Series 2 Notable Trials Series 65 510 commencing a postmortem examination on the body of a suspected case of poisoning should read the police report and endeavour to get as much information as possible from the relatives of the deceased regarding the quality and quantity of the poison administered the character of the symptoms with reference to their onset and the time that elapsed between the taking of the poison and the development of the first symptoms the duration of the illness nature of the treatment adopted and the time of death He will find that in most cases the account supplied by the police and the relatives is very meagre or incorrect and misleading His task is therefore very difficult especialy when many of the poisons except corrosives and irritants do not show any characteristic postmortem signs and when bodies are in an advanced state of decomposition Similarly Gonzales in Legal Medicine and Toxicology states at p 629 The question of whether or not a negative toxicologic examination is consistent with death by poison can be answered affirmatively as may persons overcome by carbon monoxide die after twenty four hours at which time the gas cannot be determined in the blood by chemical tests Likewise the organs of individuals who have been poisoned by phosphorus may not contain the toxic substance respons ible for death if they have managed to survive its effects for several days Many conditions seriously interfere with the toxicologic examination such as postmortem decomposition We need not multiply authorities because every book on toxicology begins with a statement of such a fact Of course there is a chemical test for almost every poison but it is impossible to expect a search for every poison Even in chemical analysis the chemical analyser may be unsuccessful for various reasons Taylor in his Principles and Practice of Medical Jurisprudence Vol 11 p 228 gives three possible explanations for negative findings viz 1 the case 511 may have been of disease only 2 the poison may have been eliminated by vomitting or other means or neutralised or metabolised and 3 the analysis may have been faultily performed Svensson Wendel in Crime Detection has stated at p 281 that Hypnotics are decomposed and disappear very quickly some even in the time which elapses between the administration and the occurrence of death Circumstantial evidence in this context means a combination of facts creating a net work through which there is no escape for the accused because the facts taken as a whole do not admit of any inference but of his guilt To rely upon the findings of the medical man who conducted the postmortem and of the chemical analyser as decisive of the matter is to render the other evidence entirely fruitless While the circumstances often speak with unerring certainty the autopsy and the chemical analysis taken by themselves may be most misleading No doubt due weight must be given to the negative findings at such examinations But bearing in mind the difficult task which the man of medicine performs and the limitations under which he works his failure should not be taken as the end of the case for on good and probative circumstances an irresistible inference of guilt can be drawn In the present case the effort of the appellant has been to persuade the Court that the death of Laxmibai was possibly the result of disease rather than by poison During the course of the case and the appeal various theories have been advanced and conflicting diagnoses have been mooted The case of the appellant has wavered between death by diabetic coma and by hypoglycemia though relying upon the condition of the arteries and the aorta and the rigidity of the neck suggestions of coronary complications and renal failure have also been made We have shown above that this was not a case of diabetic coma because of the absence of the cardinal symptoms of diabetic coma This also is the opinion of Dr Variava and Dr Mehta though Dr Jliala for reasons which we have indicated accepted it The appellant argued again the case 512 from the angle of diabetic coma but later veered in favour of hypoglycemia This change noticeable not only in the arguments before us but also throughout the conduct of the case is merely to confuse the issue and create if possible a doubt which would take the mind away from the surrounding circumstances and focus it only upon the medical aspect of the case Full advantage has been taken of the findings of Dr Ugale and Dr Miss Aneeja which suggest partly an onset of diabetic coma partly of hypoglycemia and partly of renal failure There is no true picture of any one disease The rigidity of the neck was not reflected in the chemical analysis of the cerebro spinal fluid and was negatived in so far as renal failure is concerned by the negative findings about albumin Diabetic coma stood ruled out by the presence of the Babinsky sign and the suddenness of the onset the negative aspect of acetone breath and the rather remarkable failure of the specific treatment given for it to have worked any change Driven from these considerations to such doubtful suggestions as coronary complications of which no physical evidence was found by Dr Jhala the appellant put his case on hypoglycemia and relied upon the fact that at the hospital 40 units of insulin intravenously and another 40 units subcutaneously were administered Medical text books were quoted to show that in the case of hypoglycemic coma the introduction of even a small quantity of insulin sometimes proves fatal The learned AdvocateGeneral stoutly resisted this move which was at variance with the case as set out before the High Court because it is obvious enough that if one accepted the theory of hypoglycemic coma the only injections of insulin causing such shook would be proved to have been given at the hospital and not by the appellant Here the position however is not so difficult for the State because Laxmibai was found to have 4 oz of pasty meal in her stomach and with food inside her the possibility of hypoglycemia taking place naturally was extremely remote If it was hypoglycemic coma due to excessive administration of insulin then it must have been administered prior to its onset and who could have 513 given it but the appellant Even though coma supervenes suddenly the patient passes through symptoms of discomfort and Laxmibai would have told the appellant about it in the train The appellant mentioned nothing of this to Dr Ugale If an excessive dose of insulin was given by the appellant the question of intent would arise and the conduct shows the intention There were no pronounced symptoms of hypoglycemia either Laxmibai just passed from unconsciousness to death without the manifestation of any of the signs associated with the syndrome of hypoglycemic death It is also to be remembered that hypoglycemic coma is generally overcome by the administration of a very small quantity of glucose 5 or10 grams of glucose orally Treatment of Diabetes Mellitus by Joslin Root and White p 350 The 40 units given intravenously were mixed with 20 C C of glucose and carried the palliative with them Even otherwise Laxmibai was receiving glucose by intragastric drip and during the three and a half hours there should have been an improvement The surprising part is that the administration of the insulin and glucose brought about no visible symptoms in the patient either for better or for worse She passed into death and the inference can only be that she did not die of these diseases of which she was either suspected or for which she was treated but of something else which could not answer to the treatment given to her Dreisbach in his Handbook on Poisons at p 27 has stated that coma also results from the action of several poisons Depressants sedatives and hypnoties all cause death by coma ibid p 201 The symptoms according to the author are sleepiness mental confusion unsteadiness rapidly followed by coma with slow shallow respiration flaccid muscles and absent deep reflexes The difference between coma due to disease and coma as the result of poisons is stated by him in the following words Coma from poisoning presumably results from some interference with brain cell metabolism In attempting to combat the effects of drugs which induce coma remember that no agents are known 514 which will specifically overcome the metabolic derangements of drug induced coma The mechanism of action of cerebral stimulant drugs is also unknown but these drugs presumably act by depressing some inhibiting function in the cell There is no evidence that any stimulants specifically oppose the cellular metabolic depression induced by the depressant drugs such as the barbiturates No specific antidote is known for the sedative and hypnotic drugs Ibid p 202 The condition of Laxmibai clearly indicated an impairment of the central nervous system It is no doubt true that in some cases of coronary thrombosis coma supervenes but it is idle to suggest in the present case that Laxmibai was afflicted by this type of coma because Dr Jhala who performed the postmortem examination and opened the coronary arteries found no evidence of thrombosis According to Otto Saphir a myocardial infarct is easily detected Autopsy pp 301 302 Coma in Laxmibai s case as we have shown above was not the result either of acidosis hypoglycemia renal failure or meningial irritation Her liver pancreas and kidney were found to have no pathological lesions and it is significant that no question was even attempted to establish that the opinion of Dr Jhala on this part of the case was incorrect Learned counsel for the appellant suggested that the examination by Dr Jhala might have been superficial and might not have included a microscopical examination of sections of some of the vital organs normally affected by diabetes This suggestion in our opinion ought to have been put forward during the cross examination of the witness and it is unfair now to suggest that the opinion that no lesions were found was based on either improper or inadequate examination We hold that Dr Jhala performed the examination adequately and he was also helped by his assistants Here we pause to ask a question why the appellant brought up the question of hysterical fits at all He could have said that Laxmibai was a diabetic and that it was likely she had coma by reason of that 515 disease The suggested diagnosis given by the appellant was so unlikely that Dr Ugale questioned it then and there There is nothing in the Wanlesswadi TB Sanatorium papers or in Dr Sathe s evidence to show that Laxmibai had hysterical fits after her hysterectomy operation No suggestion was made to the doctors in Court that Laxmibai might have had hysterical fits The condition of the muscles and the absence of deep reflexes clearly show that this was just another piece of deception It is not possible to hold that the appellant gave the full particulars to Dr Miss Aneeja No suggestion was made to her or to Dr Ugale that any information other than what was noted in the case papers was furnished There is no case for holding that Laxmibai had a relapse of hysterical fits It would therefore appear that Laxmibai s condition was not due to any disease because diseases inducing coma generally leave some trace behind and also respond to medication No doubt in some cases the pathological findings after death from diabetic coma have been negative but the question is if this was such a case We have on the one hand the fact that numerous poisons causing coma leave no identifiable trace in the victim after death and on the other that sometimes the autopsy does not disclose any discoverable signs in a patient who dies after an attack of diabetic coma or disease The appellant can be presumed to have had knowledge of these poisons The appellant challenged the Advocate General to show from any standard book that the symptoms found by the doctors accorded with any known poison Here it must also be remembered that a man with knowledge may manipulate not one but more drugs to achieve his purpose and the cardinal signs of poisoning on the victim may as a result be either obliterated or at least significantly modified We give one example on which a certain amount of knowledge is possessed even by laymen A poison of which one of the symptoms would be the contracting of the pupils of the eyes may be side tracked by putting into the eyes of the victim a drug like atropine which by its local 516 action dilates the pupils We give this example because most of us know the action of atropine on the eyes and because the example also shows how easily a person with knowledge may confuse the symptoms by a simple trick We are not suggesting that this is what has happened in this case but when we have to deal with a case of crime versus natural death we cannot overlook the possibility of some ingenious artifice having been used to screen the action If Laxmibai died in circumstances which prima facie admit of either disease or homicide by poisoning we must look at the conduct of the appellant who brought her to the hospital and consider to what conclusion that conduct unerringly points If the appellant as an honest medical man had taken Laxmibai to the hospital and she had died by reason of disease his conduct would have been entirely different He would not have taken her to the hospital bereft of property with which she started from home he would not have given a wrong or misleading name to cover her identity he would not have given a wrong age and wrong history of her ailments he would not have written a letter suggesting that she had a brother in Calcutta which brother did not exist he would not have abandoned the corpse to be dealt with by the hospital as an unclaimed body he would not have attempted to convince the world that she was alive and happily married he would not have obtained her property by forgeries impersonation and other tricks indulged in both before and after her death but he would have informed her relatives and done everything in his power to see that she was properly treated and stayed on to face whatever inquiry the hospital wished to make into the cause of death and not tried to avoid the postmortem examination and would not have disappeared never to reappear His prevarications about where Laxmibai was make a big and much varied list and his forgeries cover scores of documents In the words of Baron Parke in Towell s case 1 Circumstantial evidence is the only evidence which can in cases of this kind lead to discovery 11854 517 There is no way of investigating them except by the use of circumstantial evidence but it most frequently happens that great crimes committed in secret leave behind them some traces or are accompanied by some circumstances which lead to the discovery and punishment of the offender Direct evidence of persons who saw the fact if that proof is offered upon the testimony of men whose veracity you have no reason to doubt is the best proof but on the other hand it is equally true with regard to circumstantialevidence that the circumstances may often be so clearly proved so closely connected with it or leading to one result in conclusion that the mind may be as well convinced as if it were proved by eye witnesses The appellant in this case took some risk in taking Laxmibai to the hospital arid in giving his name there and these aspects were in fact stressed as arguments in the case As regards the first part the argument overlooks that what appears to us to be a risk might not have so appeared to the appellant who might have been sure of his own ability to screen himself To him the death of Laxmibai at the hospital without discovery of poison would be the greatest argument in his favour that he had acted honestly The second argument is equally unacceptable to us The appellant could not take the risk of a false name and address if he was intending that the body should be disposed of as unclaimed By giving his own address he could keep the strings in his own hands If he gave an address and no reply came from that address the hospital would suspect foul play If he gave the address of Laxmibai people in Poona would know of this mysterious death and they would remember the death of Purshottam alias Arvind in 1954 At that time also a postmortem examination on the body of Arvind was held see evidence of Ramachandra P W 1 and the explanation of the appellant given in writing on January 22 1954 is set out below in his own words My name is Anant Chihtaman Lagu age years residing at No 4315 Madiwale Colony Poona on 66 518 being questioned state that I am the family doctor of Karve family in H No 94 95 Shukrawar The deceased Purshottam Anant Karve belongs to that family He came from Bombay to Poona on Saturday the 16th January 1954 He had come to me on Sunday the 17th February 1954 for medicine for weakness I treated him for 2 clays on 17th and 18th He had neither told me that there was poisoning in his stomach nor did I detect any even when I examined and treated him He became unconscious 5 hours before his death He was taken to the Sassoon Hospital at 9 pm on 18th January 1954 He was taken to the Sassoon Hospital because his disease was increased in unconsciousness and also because his mother as also myself and Dr Joshi were of the same opinion He died there in about 30 to 45 minutes The fact that there was deliberate poisoning by somebody was neither revealed in my examination nor did Purshottam Karve speak to me anything about it during the time I treated him 2 days before What exactly was the cause of death could not be revealed during my treatment I do not know if somebody is on bad terms with him There are rumours about suicide but there is no reason or any circumstance whatsoever for doing so A false address would have started enquiries at the hospital end Laxmibai s own address would have started speculation in Poona It was for this reason that the appellant had to choose another place and to trim between fact and fiction so that he might be able to deal with the matter himself Of course Laxmibai did have an address of her own which could have been given and which did not cease to be her address because she had got an attack of coma from which people are known to recover These arguments however are of no avail in view of the appellsnt s entire conduct now laid bare which conduct has been proved to our satisfaction to have begun not after the death of Laxmibai but much earlier This conduct is so knit together as to make a net work of circumstances pointing only to his guilt 519 The case is one of extreme cunning and premeditation The appellant whose duty it was to care for this unfortunate lady as a friend and as her medical adviser deliberately set about first to ingratiate himself in her good opinion and becoming her confidant found out all about her affairs All this time he was planning to get at her property after taking her life He did not perpetrate his scheme at Poona where the death might have brought a host of persons to the hospital He devised a diabolical scheme of unparalleled cunning and committed an almost perfect murder But murder though it hath no tongue speaks out sometimes His method was his own undoing because even the long arm of coincidence cannot explain the multitude of circumstances against him and they destroy the presumption of innocence with which law clothed him In our judgment the two Courts below were perfectly correct in their conclusion that the death of Laxmibai was the result of the administration of some unrecognised poison or drug which would act as a poison and that the appellant was the person who administered it We accordingly confirm the conviction As regards the sentence of death passed on the appellant by the Sessions Judge and confirmed by the High Court it is the only sentence that could be imposed for this planned and cold blooded murder for gain and we do not interfere with it The appeal fails and it will be dismissed SARKARJ In my opinion this appeal should be allowed The appellant was tried by the Sessions Judge Poona on a charge under section 302 of the Indian Penal Code for the murder of Laxmibai Karve on November 13 1956 by administering poison to her and was convicted and sentenced to death His appeal to the High Court at Bombay against the conviction and sentence failed He has now appealed to this Court with special leave The evidence against the appellant is all circumstantial The question to be decided in this appeal is 520 whether that evidence is such that the only reasonable conclusion from it is that the appellant was guilty of the charge brought against him Laxmibai Karve the deceased was the widow of one Anant Karve who was a businessman of Poona Laxmibai was married in 1922 at the age of eleven to Anant Karve then a widower Her maiden name was Indumati Ponkshe After her marriage she was given the name Laxmibai but was also called Indumati or Indutai or Mai Karve or simply Mai It does not appear that after her marriage she had been known by her father s surname of Ponkshe a fact the significance of which will appear later Anant Karve had a son named Vishnu by his first wife By Laxmibai he bad two sons Ramchandra and Purshottam also called Arvind Anant Karve died in 1945 leaving a will By his will he gave Laxmibai a right of residence in tree rooms in his dwelling house at No 93 95 Shukrawar Peth Poona and a right to receive Rs 50 per month from the rent of that house which was in part let out and made certain other bequests to her He devised the rest of his properties to his sons Besides what she had received from her husband Laxmibai in 1954 inherited the properties of Purshottam who had died interstate and unmarried in that year She further inherited a large sum of money and gold ornaments of considerable value from her mother Girjabai who had died in 1946 or 1947 She bad also considerable valuable ornaments of her own Her total assets amounted in 1956 to about Rs 80000 Part of her liquid assets were held in shares and debentures in limited companies She had also certain moneys in an account in her name in the Bank of Maharashtra A considerable sum was due to her from one Joshi to whom she had given a loan After the death of her husband differences cropped up between Laxmibai and her elder SOD Ramchandra In 1946 Ramchandra started living separately from his mother in the same house and used to take his food in a hotel In October 1952 Ramchandra joined military 521 service as a craftsman and left Poona Since joining service till the death of Laxmibai he was not residing at Poona but came there now and then In May 1956 Laxmibai got Ramchandra married After her husband s death Laxmibai lived in the three rooms in premises No 93 95 Shukrawar Peth Poona in which she had been given a right of residence by her husband s will Her younger son Purshottam also appears to have gone out of Poona on service in 1953 and he died in January 1954 Since then Laxmibai had been living all by herself She had however certain relatives in Poona The appellant is a medical doctor He and his brother B C Lagu also a doctor had been the family physicians of Anant Karve during his life time and attended him in his last illness After his death the appellant continued to be Laxmibai s family doctor It is clear from the evidence that Laxmibai had great trust and confidence in the appellant and depended on him in all matters concerning her moneys and investments It was he who went to the Bank for withdrawing and depositing moneys for her In 1955 he actually took on rent a big hall in premises No 93 95 Shukrawar Peth for his personal use and had been in occupation of it since then Laxmibai did not possess very good health She had developed a tuberculous lesion some twenty years before her death but it had healed She was a chronic diabetes patient since 1946 and started having hysterical fits since 1939 She suffered from menorrhagia and metrorrhagia since 1942 On April 11 1948 Dr Ghorpure a surgeon performed an operation on her which is described in these terms Abdomen opened by mid line sub umbilical incision Subtotal hysterectomy done ovary cysticpunctured Appendicectomy Abdomen closed after exploring other viscera which were normal In 1949 she suffered from pyorrhoea and had her teeth taken out In 1950 the tuberculous affection became active and on June 15 1950 she consulted Dr Sathe a lung specialist who found that there was tuberculous 522 affection of the left lung and he recommended a line of treatment This treatment was carried out by the appellant but apparently did not achieve much result On July 13 1950 she got herself admitted into the Wanlesswadi Tuberculosis Sanatorium at Miraj in Bombay for treatment of the tuberculosis Two thoracoplasty operations were performed on the left lung and she was recommended a third such operation which she was unwilling to undergo and left the hospital at her own desire In the course of these operations nine of her ribs on the left side were removed The report given by this hospital on November 17 1950 reads thus Patient was admitted on 13th July 1950 X Ray on admission showed extensive filtration on the left side with a large cavity in the upper zone the right side was within normal limits She had diabetes with high blood sugar which was controlled by insulin Two stages of thoracoplasty operation on the left side were done and there was good clearing of disease but there was a small residual cavity seen and the third stage operation was advised The patient is leaving at her own request against medical advice Her sputum is positive There is no evidence that after she left Wanlesswadi Sanatorium she had any relapse of any of her previous illnesses earlier recounted It appears from the evidence of her relation one Datar a medical man that Laxmibai had been completely invalid being a frank case of tuberculosis of both the lungs but in November 1956 her health was good and she was cooking her food and moving about in the house The other evidence also shows that she was carrying on her daily avocations of life in a normal way at that time After her death her body was found to be well nourished She had however to have ordinary medical attention constantly and the diabetes had continued though controlled The appellant treated her all along and the fees paid to him appear debited to Laxmibai s account I have so far been stating the earlier history of the case and now come to the more immediate events On November 8 1956 Laxmibai had Rs 5275 09 in her 523 account in the Bank of Maharashtra On a date between November 8 and 10 she signed two papers the first of which was a notice to the Bank reading I desire to withdraw an amount exceeding Rs 1000 up to about Rs 5000 in the next week from My savings Bank Account and the other was a withdrawal slip or cheque and it read Pay Bearer the sum of Rupees Five thousand only which please debit to the 2account of Laxmibai Anant Karve None of these papers bore any date and the bodies of them were in the appellant s handwriting These papers were made over by Laxmibai to the appellant and he did not present them to the Bank till after her death On November 12 1956 the appellant paid to the credit of Laxmibai s account in the Bank a dividend warrant dated November 10 1956 for Rs 2607 6 0 drawn in her favour by a company on the Bank of Maharashtra after signing her name on the back of it himself The appellant had fixed up an engagement with Dr Sathe of Bombay who has been named earlier for November 13 1956 at 3 pm for examining Laxmibai On November 8 1956 Bhave a relation of Laxmibai called on Laxmibai and found the appellant there Laxmibai told him that she proposed to go to Bombay with the appellant for consulting Dr Sathe for her health and that she would be returning in four or five days On November 10 or 11 she saw a lawyer Karandikar also a relation and informed him that she intended to go to Bombay with the appellant for consulting a physician About the same time Champutai daughter of Bhave mentioned earlier came to Laxmibai s house to invite her to attend the birthday party of her son which had been fixed for November 13 Laxmibai told Champutai that she was going to Bombay and if she was able to come back in time she would attend the party At about 8 pm on November 12 Laxmibai went to Virkar who was a tenant of the house where she lived and informed him that she was going to Bombay by the night train to consult a doctor and requested him to pay Rs 50 on account of the rent then due for meeting the expenses of the 524 journey to Bombay The amount was paid by Virkar to her She told Virkar that she expected to return to Poona after three or four days About the same time she met Pramilabai another tenant of the house and told her that she was going to Bombay with the appellant by the night train to consult Dr Sathe A little later she was seen by a third tenant Krishnaji standing in front of the house with a small bag and bedding Krishnaji also saw the appellant on the road going away from the house All these people have said that they found Laxmibai in a good state of health and going about performing her normal avocations of life There was a passenger train leaving Poona for Bombay at 10 pm Laxmibai and the appellant went by this train to Bombay on November 12 1956 Though the appellant denied this the Courts below have found that they travelled in the same compartment The train reached Victoria Terminus Station Bombay at 5 10 am on November 13 Laxmibai had then gone into a comatose condition The appellant procured a stretcher and carried her into a taxi with the help of porters and took her to Gokuldas Tejpal Hospital usually called for short GT Hospital which is about six furlongs from the station They reached the hospital at about 5 45 am Laxmibai was taken to the Outdoor Department where Dr Ugale the Casualty Officer in charge admitted her into the hospital According to Dr Ugale the appellant told him that the name of the unconscious woman was Indumati Paunshe and her age was forty The appellant gave as the address of the patient the address of his own dispensary at Poona namely Co Dr Lagu 20 B Shukrawar Gala No 12 Poona 2 Dr Ugale said that the appellant at his request spelt the name Paunshe and he took it down as spelt by the appellant On enquiry about the history of the patient by Dr Ugale the appellant told him that the patient suddenly became unconscious in the train while coming from upcountry and that there was a history of similar attacks frequently before Dr Ugale also said that the appellant told him that he thought that the case was one of hysterical fit from 525 which she frequently suffered He did not tell Dr Ugale that the patient suffered from any other disease He said that he had brought the unconscious woman to Bombay for getting her examined by a specialist and that she was his patient Dr Ugale entered in the appropriate record of the hospital called the case paper all that the appellant told him and what he himself had noticed As a result of his own examination Dr Ugale found that the patient was making some involuntary movement the corneal reflex was absent the pupils were normal and reactive He found nothing abnormal in the cardiovascular system or the respiration There was a clerk sitting by the side of Dr Ugale when the appellant was speaking to him and he made the necessary entries in another record of the hospital In that record the name of the patient appears as Indumati Pankshe Dr Ugale examined the person of Laxmibai and found no ornament or cash on her Within four or five minutes of the time that she arrived at the Out door Department of the hospital Laxmibai was removed to Ward No 12 Dr Anija a young woman doctor who had passed out the previous June was then the House Physician in attendance at that ward The appellant accompanied Laxmibai to the ward and introduced himself to Dr Anija as Dr Lagu which is his name He told her that while travelling in a train from upcountry the patient had got unconscious and therefore he had brought her straight from the station to the hospital and that before the journey the patient was alright He further said that the patient had similar attacks before The appellant also told Dr Anija that he was the family physician of the patient and a family friend and spoke of some of the illnesses from which the patient had earlier suffered Dr Anija made some notes in the case paper of what she heard from the appellant and then examined the patient the result of which she also similarly noted in the case paper Thereafter according to Dr Anija she tested the patient s urine in a laboratory attached to the ward and recorded the finding on the case paper She then administered some stimulant and oxygen and also 67 526 gave an injection of 40 units of insulin as she thought as a result of the urine test that the case was one of diabetic coma There is some dispute as to whether the urine was examined by Dr Anija at this time and as to when the entries on the case paper of the results of the examination had been made This will be discussed later Dr Anija examined the urine of the patient for the second time at about 8 30 am and that also disclosed a certain quantity of Sugar She said that she then sent a call to the Registrar of the ward who was her immediate superior to come and see the case The Registrar came and according to Dr Anija directed that the patient be given another 40 units of insulin with 20 cc of glucose by intravenous injection and that she be also given intra gastric glucose drip and this was done at about 9 am At about 11 am the HonorarY Visiting Physician Dr Variava came to the hospitals Dr Anija told him that it was a case of diabetic coma Dr Variava then himself examined the patient and thereafter asked Dr Anija why she thought it to be a case of diabetic coma to which Dr Anija replied that she did so because there was sugar present in the urine Dr Variava then asked her whether she had examined the urine for acetone to which she replied that she had not Dr Variava thereupon reprimanded her by saying How can you diagnose a case of diabetic coma without ascertaining acetone in the urine Thereafter under the directions of Dr Variava Dr Anija again tested the urine and showed it to Dr Variava who thought that the urine contained a slight trace of acetone Shortly after this urine test the patient that is Laxmibai expired It was then about 11 30 am Dr Variava then told Dr Anija that he did not think that the case was one of diabetic coma and that therefore he wanted a postmortem examination of the body of the deceased Dr Anija then made a note on the case paper stating Asked for postmortem and put her signature below the entry She did not then put down anything in the column there about the final diagnosis Dr Variava did not wait to see the entry about 527 postmortem being made by Dr Anija but left to attend other cases It is clear that the appellant was present in the hospital up to the time of the death Of Laxmibai though in his statement in the trial Court he had denied this There is no evidence as to how long he remained in the hospital after Laxmibai s death but it is clear that he was in Poona on November 14 There was arrangement in the hospital for conducting postmortem examinations The case papers along with note Asked for postmortem had been sent by Dr Anija to the Resident Medical Officer of the hospital Dr Mouskar It was his duty to arrange for the postmortem examination The case paper came to Dr Mouskar s office at 1 pm but he did not proceed to make any arrangement for having a postmortem examination held Instead at about 2 p m he sent an official telegram to the appellant at Poona at the address which he had given to Dr Ugale and which was recorded in the case paper The telegrams was in these words Indumati expired arrange removal reply immediately On November 14 the appellant wrote from Poona a letter in reply to the telegram This letter was in these terms I have already telegraphed to the brother of Shrimati Indumati Panshe at Calcutta earliest he will reach Bombay on the 15th November 1956 Thursday His name is Govind Vaman Deshpande he will enquire as Indumati Panshe I have seen the name of the patient entered in the Ward Book as Indumati Pannshe as n extra Please correct it I am writing all these things in connection of a case woman aged 30 35 years admitted in G T Hospital at 6 am on Tuesday 13th November 1956 and expired the same day at about 11 am Shri Govind Vaman Deshpande will take the body and do the necessary funeral function according to Hindu rites Laxmibai had in fact no brother of the name of Govind Vaman Deshpande and in fact the appellant 528 had sent no telegram as he stated in the letter The statements in the letter were all false The letter was received in the office of Dr Mouskar in the afternoon of November 15 Not having received any reply from the appellant to his telegram Dr Mouskar on November 14 at about 4 p m sent the following information to the Inspector of Police A Esplanade P section Bombay Sir I am to state that Smt Indumati Paunshe Hindu female aged 40 years was admitted in Ward No Xll for treatment of hysterical fits on 13th November 1956 at 5 45 a m She died on the same day at 11 30 am The address given at the time of admission is as follows Co Dr Lagu 20B Shukrawar Gala No 12 Poona 2 A telegram on the above address has already been sent but without any response It is therefore requested that the body may please be removed and taken to the J J Hospital Morgue for avoiding decomposition A copy of this letter was sent to the Coroner for information The letter was written as in the G T Hospital there was no air conditioned morgue and there was one in the J J Hospital On receipt of this letter the police immediately wrote to the Coroner for permission to remove the body from the G T Hospital to the J J Hospital The permission was granted by the Coroner at about 7 50 pm on the same day The body was thereupon removed from the G T Hospital to the J J Hospital morgue at about 9 pm on November 14 On the same day that is November 14 at about 9 30 p m the police again wrote to the Coroner stating that it had received a report from the Resident Medical Officer G T Hospital of the death of one Indumati Paunshe referring evidently to the letter which Dr Mouskar had earlier on the same day written to the 529 policeand that Indumati appeared to have no relatives in Bombay and further that the cause of death was not certified and requesting in the circumstances that an inquest over the death might be held What happened about this request will be stated later On November 15 the Bombay police sent a wireless message to the police at Poona intimating that on November 13 one Indumati Paunshe who had been admitted to the GT Hospital for treatment of hysterical fits had died on the very day in the hospital and her address was Co Dr Lagu 20B Shukrawar Gala No 12 Poona 2 and asking that enquires might be made at the above address and the relatives might be asked to claim the dead body which was lying unclaimed Pursuant to this message the Poona police interviewed the appellant at Poona on November 16 when he made the following statement On November 12 he left Poona for Bombay by the 10 pm train and had gone off to sleep Towards the end of the journey when he started preparing to get down at Bombay he found one woman fast asleep From other passengers he came to know that her name was Indumati Paunshe about 35 years of age and she had a brother serving in Calcutta When other passengers got down at Victoria Terminus Station in Bombay the woman did not awake He thereupon looked at her keenly and found her senseless Being himself a doctor he thought it his duty to take her to the hospital and so took her to the G T Hospital in a taxi As he had taken that woman to the hospital the Casualty Medical Officer took his address He had no more information about the woman She was not his relation and he was not in any way responsible for her The statement so made by the appellant was received by the Bombay police from the Poona police on November 17 I now come back to the events that were happening at Bombay I have earlier stated that the case paper had not initially given the final diagnosis as to the 530 cause of Laxmibai s death but bore the endorsement Asked for postmortem At some stage as to which the evidence is conflicting and which I will have to discuss later the endorsement Asked for postmortem was crossed out and the words diabetic coma were written on the case paper as the caus of the death of the patient Both of these alterations had been made by Dr Anija who put her signature under the crossed out entry Dr Mouskar on November 15 sent to the Coroner a certificate of the death of the patient Indumati in the G T Hospital stating therein diabetic coma as the cause of her death By this time the alteration in the case paper had clearly been made crossing out the direction as to postmortem examination and stating therein diabetic coma as the cause of death On the same day that is November 15 the police wrote a letter to Dr Mouskar apparently in ignorance of the death certificate issued by him requesting him to send per bearer the cause of the death of Indumati This letter was sent with a copy the idea being that the original would be retained by the Hospital and the copy returned with an acknowledgement of the receipt of the original made on it Both these were however produced from the police custody without any endorsement by the hospital acknowledging the receipt of either The copy bore the following remark Diabetic coma Dr N section Variava G T Hospital It is clear on the evidence that the endorsement had not been made by Dr Variava Dr Anija also denied having made it though before the police she admitted that the words Diabetic coma had been written by her Dr Mouskar said that neither the original nor the copy had ever come to him and he thought that the endorsement Diabetic coma might be in Dr Anija s hand writing but he could not say by whom the words Dr NS Variava G T Hospital had been written adding that the words Dr N section Variava had not been written by Dr Variava The question as to who made the endorsement will be discussed later On receipt of the death certificate from Dr Mouskar the Coroner s office made on the letter of the police 531 dated November 14 asking an inquest to be made which I have earlier mentioned an endorsement directing that no inquest was necessary as the Resident Medical Officer G T Hospital had certified the cause of death and had issued the death certificate On November 19 the Coroner s office directed that the dead body might be disposed of as unclaimed after taking a photograph of it A photograph of the dead body was duly taken on the same day In the mean time the Grant Medical College had written to the Coroner on November 17 for authority to take over certain unclaimed dead bodies lying in the JJ Hospital mortuary for dissection purposes and thereupon the Coroner made an order directing that the dead bodies might be made over to the Grant Medical College Pursuant to this order the dead bodies which included that of Laxmibai were then made over to the Grant Medical College on November 20 1956 When the dead body of Laxmibai was about to be taken to the dissection hall some scratches on the neck were detected The Professor of Anatomy of the College did not thereupon allow the body to be dissected and brought the discovery to the notice of the police The police then wrote to the Coroner that in view of this a postmortem and an inquest might be held Accordingly under the instructions of the Coroner Dr Jhala Police Surgeon Bombay held a postmortem examination of the body of Laxmibai on November 23 He found no sign of decomposition in the body nor any characteristic smell of any recognisable poison He also found the scratches on the neck to be postmortem Dr Jhala sent the viscera to the Government Chemical Examiner who sent the report of his examination on December 19 1956 wherein he stated that he was unable to detect any poison in the viscera Thereupon Dr Jhala submitted his postmortem report stating that in his opinion death could have occurred on account of diabetic coma In the meantime after the postmortem examination the body of Laxmibai had been made over to the Hindu Relief Society for cremation on November 24 and the cremation had been duly carried out 532 It is now necessary to go back to Poona and relate what the appellant did after Laxmibai s death To describe it summarily the appellant did not give any one the information of Laxmibai s death but on the contrary represented that she was alive and moving about from place to place and in the meantime misappropriated most of her moneys I will now give some details of his activities in relation to Laxmibai s moneys It will be remembered that about November 8 the appellant had taken from Laxmibai a notice to the Bank for withdrawal of money and a withdrawal slip none of which bore any date The appellant inserted on the notice of withdrawal the date November 15 1956 and lodged it in the Bank on the same day or soon thereafter On the withdrawal slip he inserted the date November 19 1956 and on November 20 presented it to the Bank and drew out a sum of Rs 5000 from Laxmibai s account He subsequently put in to the credit of her account diverse cheques and by April 1957 bad drawn out by forging her signature practically the whole amount in her credit totalling about Rs 10000 including the sum of Rs 5000 withdrawn on November 20 1956 The appellant also embarked on a systematic course of forgeries of the signature of Laxmibai on various fabricated documents including share transfer deeds as a result of which before the end of 1957 he misappropriated a large part of the liquid assets belonging to Laxmibai s estate When some of the forged signatures of Laxmibai had been doubted by the authorities to whom they had been presented with the object of being acted upon the appellant even went to the length of getting a woman to falsely impersonate Laxmibai before a Magistrate and thereby procured the latter to certify forged signatures of Laxmibai as genuine signatures He also clandestinely denuded Laxmibai s flat of its entire contents None of her ornaments has been recovered after her death In the meantime he had been falsely representing to various persons including all friends and relatives of Laxmibai that he had met her on several dates after November 13 when she was already 533 dead He manufactured various letters purported to be written by her from distant places in India and addressed to her relatives in Poona stating that she was going round on a pilgrimage Eventually he fabricated letters purported to have been written by her to her relatives in which it was stated that she had married one Joshi and bad settled down in a place called Rathodi near Jaipur and did not intend to return to Poona There is in fact no place of the name of Rathodi His idea in manufacturing these letters was to create a false impression in the minds of Laxmibai s friends and relatives that she was still alive and this he did with the object of gaining time to misappropriate her properties It is not necessary to go into the details of this part of the conduct The substance of it is that he made full use of the situation arising out of Laxmibai s death to misappropriate by all kinds of dishonest means most of her properties and to facilitate the misappropriation assiduously spread the story that she was alive It may be stated that the appellant was put on his trial on charges of misappropriation and other allied charges and found guilty and sentenced to imprisonment for life The long absence of Laxmibai had gradually made her relatives grow suspicious about her fate and they approached the police but no trace of Laxmibai could be found Several petitions were sent to the higher police officers and also to the Chief Minister of Bombay In the end the matter was entrusted to Mr Dhonde Deputy Superintendent of Police C I D Poona for enquiry Mr Dhonde made various investigations and eventually on March 13 1958 interrogated the appellant The appellant then told him that be had taken Laxmibai to the G T Hospital Bombay and admitted her there and that she died there on November 13 1956 The police made enquiries at the G T Hospital and was able to find the clothes which Laxmibai wore when she died These were identified by Laxmibai s relations The photograph of the dead body of Laxmibai also helped to prove her identity After certain further enquiries the police sent up the 68 534 appellant for trial on a charge of murder of Laxmibai with the result I have earlier mentioned The prosecution case is that the appellant caused the death of Laxmibai by administering to her a poison which was undetectable On the evidence in this case it has to be held as the Courts below have done that there are poisons which cause death but are undetectable I do not wish to be understood as saying that death by poisoning cannot be proved without proof of detection of poison in the deceased person s system after his death I quite agree that the circumstances may be such that the only reasonable conclusion that can be drawn is that death was an unnatural death In this view of the matter I do not consider it necessary to discuss the cases cited at the bar and in the judgments of the Courts below They are all illustrative of the proposition that a crime can be proved by circumstantial evidence a proposition which I fully accept In one of them namely Regina vs Onufrejczyk1 guilt was held proved from the circumstances of the case notwithstanding that there was no body or trace of a body or any direct evidence as to the manner of death of a victim The legal proposition that arises in the present case may be put in the words of Wills in his treatise on Circumstantial Evidence which has been quoted in the judgment of the High Court It would be most unreasonable and lead to the grossest injustice and in some circumstances to impunity for the worst of crimes to require as an imperative rule of law that the fact of poisoning shall be established by any special and exclusive medium of proof when that kind of proof is unattainable and specially if it has been rendered so by the act of the offender himself No universal and invariable rule therefore can be laid down and every case must depend upon its own particular circumstances and the corpus delicti must like anything else be proved by the best evidence reasonably capable of being adduced and by such an amount and combination of relevant facts whether direct or circumstantial as to establish the factum probandum 1 1955 1 Q B 388 535 to the exclusion of every other reasonable hypothesis 7th Ed p385 In the present case therefore the circumstances must be such that no other conclusion than that Laxmibai died of poisoning and that the poison was administered by the appellant can reasonably be drawn The Courts below have found that the circumstances of this case fully establish this I have come to a different conclusion In my view the circumstances are not such that from them the only reasonable conclusion to be drawn is that Laxmibai died of poisoning If that conclusion cannot be drawn of course no question of the appellant having poisoned her arises I may also say that if Laxmibai could be said to have died of poisoning I would have no reason to disagree with the view of the Courts below that it was the appellant who had administered the poison I proceed now to consider the question whether Laxmibai had died of poisoning I do not suggest that poison had to be found in her system In my view if it could be established in this case that Laxmibai had died an unnatural death the conclusion would be inevitable that that unnatural death had been brought about by poison no other kind of unnatural death could be possible on the facts of this case The real question in this case then is whether Laxmibai had died an unnatural death I think the Courts below also considered that to be the only question in this case I have earlier said that no poison was detected in the postmortem examination So far as direct evidence of the cause of death goes which in this case is all opinion evidence we have the evidence of three doctors All that Dr Variava said was that death was not due to diabetic coma The Courts below have accepted this evidence and I find no reason to take a different view Then there is Dr Jhala who conducted the postmortem examination He had stated in the port mortem examination report that the cause of death was diabetic coma In his evidence in Court he said that the opinion stated in his report was not based on his pathological findings and that the proper way of describing the cause of 536 death would be by stating death by diabetes with complications He also referred to certain complications such as atheroma of aorta with slight sclerosis of coronary In the end he was asked by the Court Would you agree with the view that the proper opinion on the pathological data available before you should have been that the cause of death was not ascertainable or could not be ascertained His answer was My answer is that on pathological data I would agree to the answer proposed We have however to see the clinical data also On the clinical data he would have said that death was due to diabetes with complications but he conceded that that opinion was somewhat speculative These two doctors there fore did not suggest that death was due to any unnatural cause Dr Variava did not in his evidence say that he had directed the postmortem examination to be done because he suspected any foul play It would appear that be did not suspect any foul play for he did not require the case to be marked as a medico legal case The most important direct evidence as to the cause of death and on which the prosecution has greatly relied is the opinion of Dr Mehta who appears to be a medical man of some eminence All the papers connected with the illnesses of Laxmibai and the postmortem examination report bad been given to him and he had made a thorough study of them The net result of this study would appear from his evidence the relevant part of which I think it right now to set out He said On a careful consideration of the entire material placed before me I am definitely of the opinion that the cause of death of Indumati Paunshe as mentioned in the case record and the Coroner s inquest viz diabetic coma cannot be true In my opinion the cause of death may probably be due to 1Administration of some unrecognisable poison ie some poison for the detection of which there are no definite chemical tests 2Administration of some recognisable poison for which there are chemical tests but which tests 537 could not be obtained on account of deterioration of the poison remaining in the dead body which was kept in the morgue for considerable time after death without postmortem being performed and which was already undergoing decomposition prior to the actual postmortem examination as is clear from the absence of rigor mortis Rigor mortis is means stiffening of muscles The above opinion that the probable cause of death may be due to administration of poison is further fortified by the fact that the postmortem did not reveal any definite pathological lesion to account for the sudden rapid death of the deceased The question then arises whether she died a natural death ie due to any other disease or diseased condition The postmortem notes do not show anything abnormal beyond congestion of organ is and tubercular focus in the left lung Congestion of organs occurs in majority of the cases after death of the person and particularly more so when so many days have elapsed between death and postmortem examination Some decomposition is bound to be going on There is still possibility of death being due to poison in spite of the fact that the poison was not detected in the postmortem examination Two reasons can be assigned for non detection of poison 1 There are no definite chemical tests for each and every poison There are some poisons which cannot be detected on chemical analysis 2 There may be a recognisable poison in the sense that there are tests for its detection But the poison may not be detected on account of deterioration of the poison remaining in the body for a considerable time before the postmortem examination and it has undergone decom position or oxidation The possibility of death being due to poisoning cannot be ruled out 538 I do not think that the Courts below thought that the evidence of Dr Mehta established that death must have been due to an unnatural cause If they did I find myself unable to agree with them The substance of Dr Mehta s evidence is that death may probably be due to some poison the probable cause of death maybe due to administration of some poison the posibility of death being due to poisoning cannot be ruled out It will have been seen that Dr Mehta posed a question whether Laxmibai had died a natural death That question he did not answer beyond stating that the postmortem examination did not show anything abnormal beyond congestion of organs and a tubercular focus in the left lung and that such congestion of organs occurs in the majority of cases after death It is clear that Mr Mehta could not say with conviction that death had been caused by poisoning nor that death could not have been due to natural causes The net result of the evidence of the medical experts is clearly that it cannot be said with definiteness how death was caused In this view nothing really turns on the fact that shortly prior to her death Laxmibai was found to have been in good health which of course can only mean as good a health as a confirmed invalid like her could have It cannot be definitely inferred from the fact that she was in good health that she had not died a natural death If such an inference was possible the doctors who gave evidence would have given a clear opinion but this they did not In this state of the evidence the Courts below have founded themselves on various circumstances of the case most of which I have earlier related in coming to the conclusion that Laxmibai bad met with an unnatural death These circumstances I now proceed to consider The first thing that I wish to discuss is the fact that after Laxmibai s death the appellant started on a systematic career of misappropriating her assets I am unable to conclude from this that the appellant had caused her death It is reasonably possible to think that he made use of the opportunity that came is way on Laxmibai s death to misappropriate her 539 properties and had not caused her death The fact that the appellant deliberately kept back the information of Laxmibai s death from her relatives and falsely created the impression in their minds that she was alive does not advance the matter This was clearly done with a view to give him time in which to carry out his scheme of misappropriating her properties I quite concede however that these circumstances may take on a different colour from other circumstances but I have found no such circumstance The next circumstance is the conduct of the appellant in obtaining from Laxmibai her signatures on the undated notice of withdrawal to the Bank and the withdrawal slip The bodies of these documents are in the handwriting of the appellant The Courts below have thought that the appellant obtained the signatures of Laxmibai on blank papers and filled them in the forms they now stand after the death of Laxmibai and utilised them to misappropriate her moneys They came to this conclusion from the fact that these documents were admittedly without dates and had been subsequently dishonestly utilised It has been held from this that the appellant had during her life time a design on her moneys and therefore it becomes likely that he caused her death I am unable to agree with this conclusion It would be difficult to hold from the fact that the appellant had a design on Laxmibai s moneys that he had also a design on her life or that her death was an unnatural death But apart from that there is reason to think that when Laxmibai signed these documents their bodies had already been written up That reason is this It will be remembered that on November 12 1956 the appellant had put to the credit of Laxmibai s account in the Bank a dividend warrant in her favour for Rs 2607 6 0 The balance to the credit of her account on November 12 1956 became as a result of this deposit Rs 7882 15 Now it is obvious that if the appellant had filled in the bodies of the notice of withdrawal and the withdrawal slip after the death of Laxmibai he would not have mentioned the amounts therein as Rs 5000 but would have increased it to a 540 figure nearer the balance because he undoubtedly had set about to misappropriate the moneys in that account and in fact he actually withdrew almost the entire balance in that account later by forging Laxmibai s signatures on other appropriate documents Therefore it seems to me that the bodies of the notice of withdrawal and the withdrawal slip had been written out before Laxmibai put her signatures on them Furthermore the evidence clearly establishes that even during Laxmibai s life time the appellant used to present to the Bank cheques signed by Laxmibai for withdrawal of moneys and signed on the reverse of such cheques in acknowledgement of receipt of the moneys He also used to deposit moneys in the Bank to the credit of her account It is quite possible that the two documents mentioned had come into the appellant s possession in the usual course of managing Laxmibai s banking affairs The fact that Laxmibai had not put dates on the documents would indicate that it was not intended that they would be presented to the Bank immediately for there is no reason to think that Laxmibai had not noticed that the documents did not bear any date She seems to have been quite a capable woman managing her own affairs well The Courts below have thought that there was no need for her to have wanted to withdraw such a large amount The appellant said that she wanted to invest the money if some fixed deposit which would have yielded a higher return but he actually lent it to a friend whom however he refused to name The Courts below have disbelieved the appellant s case Even so it does not seem to me possible to hold that Laxmibai did not want to withdraw any moneys and the appellant had fraudulently got her to put her signatures on blankpapers I have earlier given my reason for this It was not necessary for the appellant to have got her to sign blank papers and there is nothing to show that she would have done that even if the appellant had asked her I may here mention that no adverse inference can be drawn from the fact that the appellant put in the 541 dividend warrant to the credit of Laxmibai s account it proves no guilt But it is said that the appellant forged the name of Laxmibai on the back of it The High Court thought that this forgery proves that the appellant had during the lifetime of Laxmibai entertained the intention to misappropriate her property I am wholly unable to see how that conclusion could be reached from this or how in fact the forgery proves anything against the appellant By the forgery as it is called the appellant was putting the money into the account to which it lawfully belonged he did not thereby give it a different destination Furthermore he need not have signed her name himself In the normal course Laxmibai would have signed it herself if asked to do so and given it to the appellant for being sent to the credit of her account There is no reason to think that she would not have signed it if the appellant had asked her to do so The dividend warrant was in Laxmibai s favour and had been drawn on the Bank of Maharashtra It was being put to her credit in the same Bank The Bank was therefore not likely to scrutinise with any care the payee s signature on the dividend warrant That may have been nature reason why it was left to the appellant to sign Laxmibai s name on the dividend warrant for putting it into the Bank But whatever view is taken I cannot see how it helps at all in solving any question that arises in this case The trial Court found it a riddle and did not rely on it Next it is said that the appellant falsely denied that he travelled in the same compartment with Laxmibai on their journey to Bombay The denial was no doubt false But it had been made at the hearing He had admitted to the doctors at the hospital and to the Poona police on November 16 1956 that he and the deceased had travelled in the same compartment This falsehood therefore does not establish that the death of Laxmibai was an unnatural death a question which I am now investigating The fact that they travelled in the same compartment may no doubt have given him an opportunity to administer poison to her and to that extent it is of course relevant 542 It is also said that there was a hospital called St George s Hospital within a few yards of the Victoria Terminus Station but the appellant took the unconscious Laxmibai to the more distant G T ofHospital with an ulterior purpose That purpose it is said was that in the G T Hospital his friend Dr Mouskar was the Resident Medical Officer and the appellant wanted to secure his help if necessary in preventing the discovery of the crime that he had committed The appellant said that he chose the G T Hospital as he was familiar with it but not with the St George s Hospital This seems to me to be too insignificant a thing The St George s Hospital was no doubt very near but the G T Hospital was not very far away either There is nothing to show that the appellant knew that Dr Mouskar was on duty on the day in question There is neither any evidence to show how much the two were friendly or how far Dr Mouskar would have gone to help the appellant Furthermore as the appellant had administered a poison which was undetectable it is not clear what help he anticipated he would require from Dr Mouskar Again he must have known that as the Resident Medical Officer Dr Mouskar was not in charge of the treatment of patients in the hospital but only performed administrative functions and that the unconscious Laxmibai would have to be treated by other doctors It cannot be said that if these other doctors found anything wrong Dr Mouskar could have done much to help the appellant So it seems to me impossible to draw any inference against the appellant from the fact that he had taken the unconscious Laxmibai to the comparatively distant G T Hospital It is then pointed out that when Laxmibai was admitted to the G T Hospital she had no ornaments on her person and no moneys with her and even her bag and bedding had disappeared It is suggested that the appellant had removed them and that this again proves that he had conceived the idea of misappropriating her properties even during her life time which supports the theory that he caused her death Now the bedding and bag can be dismissed at once 543 There is no evidence as to what they contained They were of small sizes It is reasonable to think that in the bag Laxmibai had taken a few wearing apparels which she might need for her stay in Bombay which the evidence shows she thought would not be of more than four days The box and the bedding must therefore have been of very insignificant value As regards ornaments the evidence is that usually she wore certain ornaments which might be of some value None of the witnesses however who saw her the day she left Poona has said that they found ornaments on her person It is not at all unlikely that as she was going to Bombay and was not sure where she would have to put up there she had as a measure of safety taken off the ornaments she usually wore before she left Poona Then again if the appellant had taken off the ornaments from the person of Laxmibai he must have done it in the train or while taking her to the hospital Now it is too much to assume that in the compartment in which they were travelling there were no other passengers The removal of the ornaments would have been noticed by the other passengers or if done later by the stretcher bearers or the taxi driver None of these persons was called Neither is there any evidence that any search for them had been made Therefore it seems to me that on the evidence on record it cannot be said definitely that the appellant removed any ornaments from the person of the unconscious Laxmibai With regard to the money she must have brought some with her to meet her expenses in Bombay It is more than likely that she had entrusted the moneys to the appellant for safety which the appellant never returned There is no evidence that she had more than Rs 50 with her and there is no reason to think that she was carrying a large sum The disappearance of the money does not prove that the appellant had conceived the design of getting rid of her Then we find the appellant describing Laxmibai in the Hospital by the name Indumati Paunshe It is said he did this to prevent her identity being discovered after her death and that this shows that he had 544 already poisoned her and knew that she was going to die Now so far as the name Indumati is concerned that was one of her names The papers that the appellant maintained in connection with Laxmibai s treatment show that he mostly called her by that name and never called her Laxmibai He said that he was used to calling her by her maiden name of Indumati Ponkshe and gave that name to Dr Ugale by sheer force of habit Dr Ugale however said that as he did not follow the surname he asked the appellant to spell it and took it down as spelt namely as Paunshe The Appellant denies that he gave the name Paunshe but says he said Ponkshe The appellant s version receives support from the fact that the hospital clerk who also took down the name for another record of the hospital as the appellant was giving it to Dr Ugale took it down as Indumati Pankshe Therefore there is some doubt whether Dr Ugale heard the name correctly However that may be I doubt if the name Paunshe indicates that the appellant gave it with a view to prevent disclosure of identity It is said that his plan was to disappear after Laxmibai s death so that her body would become unclaimed and be disposed of as such If that were Bo then nothing would turn on the name It is only when people came to know that a woman of the name of Indumati Paunshe had died that the question as to who she was would have risen In view of the fact that the appellant had given Indumati s address as care of himself at Poona it would be known that she belonged to Poona I am very doubtful if an enquiry made at Poona for Indumati Paunshe would have kept back the real identity Indumati or Laxmibai had disappeared mysteriously her maiden name was Ponkshe People interested in her would surely have been led by the name Indumati Paunshe to enquire if it was Laxmibai Karve So it seems to me that if the appellant had really wanted that the woman he took to the hospital should never be discovered to have been Laxmibai he would have used a totally different name I am unable to hold that the use of the name Indumati Paunshe is any clear evidence of the guilty intention of the appellant In this connection I have to refer to the 545 appellants letter of November 14 1956 to the G T Hospital in which he pointed out that in the hospital record the name had been taken down as Pannshe that is s with an extra n and this should be corrected By this time the appellant had clearly conceived the idea that the news of the death of Laxmibai should be prevented from becoming public He had also misled the hospital authorities by informing them that Indumati s brother would arrive to take over her body as already stated she had no brother Therefore this attempted correction in the name by deleting the extra n is really irrelevant the extra n would not in any event have made the discovery of the identity of the dead person easier What led the appellant to make this attempt cannot however be ascertained Then I have to consider the fact that the appellant told Dr Ugale that Laxmibai had become unconscious of a hysterical fit and she had a history of similar attacks before It is said that this story about hysterical fit is false and had been conceived to hide the fact that she had been poisoned The appellant had denied that he had mentioned hysterical fit to Dr Ugale and said that he had only stated that she had suddenly become unconscious That he had mentioned sudden onset of unconsciousness in the train is admitted by Dr Ugale It is somewhat curious that the appellant would have mentioned both hysterical fit and patient suddenly became unconscious in the train It is significant that hysterical fit was entered in the case paper by Dr Ugale under the head Provisional Diagnosis a thing for which I think the doctor in charge has some responsibility It may also be stated that Dr Anija did not say that the appellant mentioned hysterical fit to her In these circumstances I have some doubt if the appellant had in fact mentioned hysterical fit to Dr Ugale I will however proceed on the basis that the appellant did mention hysterical fit to Dr Ugale Now there is evidence that for nine years upto 1948 Laxmibai had suffered from hysterical fits There is no 546 evidence one way or the other whether she had such fits thereafter If she had not the prosecution could have easily produced evidence of it The only evidence on which the prosecution relied was that of Laxmibai s son Ramachandra All that he said was that between 1943 and 1948 his mother suffered from fits and that in 1956 when he had come to Poona for his marriage his mother was not suffering from fits Now Ramachandra does not appear to have much knowledge of his mother s health He did not even know what kind of fits these were nor that his mother suffered from diabetes Apart from the nature of his evidence it has to be remembered that he was living separtely from his mother since 1946 and was away from Poona since 1952 It cannot therefore be said that it would have been improbable for the appellant to have thought that Laxmibai had a relapse of a hysterical fit I now come to the fact that the address of Laxmibai given by the appellant to the hospital authorities was his own address It is said that he did so deliberately to ensure all communications concerning her from the hospital coming to him that he knew that Laxmibai was going to die and wanted that nobody else would know of her death I find some difficulty in appreciating this I do not see what communication could be addressed by the hospital authorities to Laxmibai after her death or when she was lying ill in the hospital Further there was no other address which the appellant could have given Laxmibai lived alone in her flat and when she was away there would be no one there to receive any communication addressed to her at that address Her only son Ramachandra was away from Poona She was clearly more friendly with the appellant than with her other relatives none of whom was a very near relative In these circumstances and particularly as he had taken Laxmibai to Bombay it seems only natural that he would give his own address Again if he had given Laxmibai s own address that would have served his purpose as well for he had a room in her house and because of his friendly relation with 547 Laxmibai would have been in charge of her flat in her absence as he in fact was It would not have been difficult for him to ensure that any letters that came for Laxmibai would reach him He could also have given an entirely false name and address and disappeared from the scene altogether the body of Laxmibai would then whether there was postmortem examination or not have been disposed of in due time as an unclaimed body and nobody would have ever known what had happened to Laxmibai Indeed it is the prosecution case that this was the appellant s plan and things happened just as he had planned and that is why he deliberately brought Laxmibai to the hospital and gave his own address What strikes me is that this plan would have worked with any false address given I am therefore unable to think that the fact that the appellant gave his own address is a circumstance which can be reasonably explained only on the hypothesis of his guilt I come now to the most important circumstance on which the Courts below have strongly rested their conclusion It is said that the endorsement made on the hospital case paper reading Asked for postmortem under the direction of Dr Variava had been crossed out and under the heading Cause of death in that paper the entry diabetic coma had been interpolated The Courts below have found that it is the appellant who had procured these alterations to be made with the help of his friend Dr Mouskar If this is so then no doubt it would be a very strong circumstance pointing to the guilt of the appellant for the only reasonable explanation of this act would be that he wanted to prevent a postmortem examination which might reveal that Laxmibai had been poisoned As I have already said the alterations had no doubt been made But in my view there is no evidence whatever to show that the appellant had anything to do with them Before state my reasons for this view it is necessary to set out the relevant evidence on this point Dr Anija admits that she made the alterations but she says that she did it in these circumstances After 548 she had made the endorsement Asked for postmortem on the case paper she asked the sister in charge of the ward to send the case paper to Dr Mouskar whose duty it was to do the needful as regards the postmortem examination and herself followed Dr Variava on a round of the wards which took her about an hour About 12 30 pm she proceeded to Dr Mouskar s office to make enquiries as to when the postmortem examination was to be held She met Dr Saify the Registrar of Unit No 1 of the hospital in which Ward No 12 was included outside Dr Mouskar s office Dr Saify had the case paper in his hand and he told her that Dr Mouskar thought that there was no need for holding a postmortem examination as the case had been treated as one of diabetic coma and also asked her to cancel the direction about the postmortem examination and to show in the column meant for cause of death Diabetic coma As Dr Saify was her official superior she accordingly carried out his directions and made the alterations in the case paper as required I will now refer to Dr Mouskar s evidence on this aspect of the case which was as follows The case paper relating to Laxmibai came to his office at 1 pm on November 13 At that time the endorsement Asked for postmortem was still there and diabetic coma had not been shown as the cause of death There was arrangement in the hospital for postmortem examination but he did not proceed to arrange for it immediately as on the face of it it was not a medico legal case nor a road side case It was the invariable practice to ask for the permission of the Coroner for holding the postmortem examination in all cases but before doing so it was necessary in nonmedico legal cases to get the permission of the relatives of the deceased for holding the postmortem examination In that view of the matter at 2 pm he sent the telegram to the appellant at his address as appearing in the case paper He never met the appellant in the hospital On the next day that is November 14 about 4 pm he wrote to the police to remove the dead body to their air conditioned morgue in the J J Hospital 549 for better preservation as no reply to the telegram had been received till then He sent a copy of this letter to the Coroner On the morning of November 15 somebody from the Coroner s office rang him up and asked him about the final diagnosis He thereupon sent the case paper through a ward boy to Unit No 1 with an oral message either to the Honorary physician the Registrar or the Assistant Houseman as to whether they were able to tell him about the final diagnosis and whether they still insisted on postmortem examination He did this as there was no final diagnosis uptil then and as the physicians often changed their minds in a non medico legal case After about half an hour the case paper came back to him and he found that the final diagnosis had been stated as Diabetic coma and the endorsement Asked for postmortem had been crossed out He then wrote out the death certificate and sent it to the Coroner The Courts below have disbelieved both Dr Anija and Dr Mouskar as to their respective versions regarding the manner in which the case paper had been altered It has to be noticed that a art from the evidence of these two doctors there is no other evidence on this question The Courts below have held that the alteration was made by Dr Anija at the direction of Dr Mouskar and that Dr Mouskar had been persuaded to give that direction by the appellant whose friend he was on a representation that he the appellant was the patient s old family doctor and knew the case to be one of diabetic coma and that it would save the family humiliation if the dead body was not cut up for a postmortem examination They also held that the alteration was made on November 13 soon after the death of Laxmibai and before the appellant had left Bombay for Poona They have further held that Dr Mouskar got the alteration made as a friendly act for the appellant and that he was in no way a conspirator in the crime There is no direct evidence to support this finding but it has been inferentially arrived at from the evidence of these two doctors The reasons on which this finding is based may be thus stated a Dr Mouskar was an old friend of the 70 550 appellant b both Drs Anija and Mouskar had lied with regard to this part of their evidence c Dr mouskar s conduct after the death of Laxmibai and his evidence in court showed that he wanted to assist the appellant d Dr Anija being very much junior to Dr Mouskar had been prevailed upon by the latter to give false evidence and e lastly that no one excepting the appellant could have been interested in avoiding the postmortem examination As to the first reason the only evidence on this question is that of Dr Mouskar All that he said was that in 1934 he and the appellant had studied Inter Science in a college in Poona together and that he had stayed in Poona for three different periods namely 1922 26 1931 36 and 1948 51 He also said that while studying together he had come to know the appellant by name but had never talked to him and had never come in contact with him since 1934 The Courts below have disbelieved the later part of the evidence of Dr Mouskar and have held that he and the appellant were friendly This finding does not seem to me to be based on strong grounds No reason has been given as to why Dr Mouskar should be disbelieved The prosecution led no evidence to show that the two were friendly No witness has been found to say that the two were seen talking to each other in the hospital It has not been noticed that the difference in age between the two was twelve years I will take the next three reasons together They are that Drs Anija and Mouskar had both lied and that the conduct and the evidence of Dr Mouskar showed that he wanted to help the appellant and lastly that Dr Anija gave false evidence only as she dared not estrange Dr Mouskar who held a much higher position There is no doubt that Dr Anija told lies The first lie was that she had tested the urine at 6 30 am for acetone She also interpolated into the case paper an entry showing that she had found acetone in the urine which she said she examined at 6 30 am Dr Variava said that he took her to task for diagnosing the case as diabetic coma without having tested the urine for acetone which she told him she had not 551 that acetone had been found on the first examination of urine was not there when he saw it at about 11 am The second lie which Dr Anija said was that she put through a telephone call to Dr Variava about 7 am and told him about the symptoms she had found and that she had been giving insulin She said that Dr Variava agreed with her diagnosis and asked her to continue the treatment she had started That this is untrue will appear from the fact that Dr Variava denied that this talk had taken place Dr Variava s recollection is supported by the fact that on arrival at the hospital he doubted if the case was of diabetic coma and the treatment given was the correct one Further there is a call book in the hospital on which telephone calls made by the house physicians are entered There is no entry there showing a call having been made by Dr Anija on Dr Variava The third lie that she said was that it was Dr Saify who told her outside Dr Mouskar s office to make the alteration in the case paper It has been clearly established that Dr Saify was not on November 13 in Bombay at all He was then on leave and in Indore I come now to Dr Mouskar No art of his evidence has been directly found to be false The Courts below have disbelieved him on improbabilities The first improbability they found was in Dr Mouskar s explanation that he did not arrange for the postmortem examination immediately as he considered the permission of the Coroner and the relatives of the deceased necessary before holding the postmortem examination and that this was the invariable practice in non medico legal cases I do not know why it should be said that this practice is improbable The prosecution did not lead any evidence to show that there was no such practice as spoken to by Dr Mouskar That the Coroner s permission had to be taken would be borne out by the fact as appearing in the correspondence that the police asked the Coroner to hold an inquest as the cause of death was not known The Courts below referred to the telegram that Dr Mouskar sent to the appellant at about 2 pm on November 13 and observed that if Dr Mouskar had delayed the postmortem examination only in order to obtain the 552 consent of the relatives then the telegram would not have asked the appellant to arrange for the removal of the dead body Dr Mouskar said that he had intended to ask for the permission to hold the postmortem examination when the appellant appeared on receipt of his telegram The Courts below have not accepted this explanation It does not seem to me that this explanation is so absurd that it must be rejected No other view would fit in with the circumstances of the case This I will explain now It has to be remembered that the finding of the Courts below is that Dr Mouskar was not in any sense a conspirator with the appellant in the crime The learned Advocate General of Bombay who appeared for the respondent also made it clear that he did not suggest that Dr Mouskar was in any conspiracy On the evidence on the record it would be impossible to hold that Dr Mouskar was in any conspiracy with the appellant There is no reason whatever for him to have done that There is no evidence of such friendship between the appellant and Dr Mouskar from which it can possibly be inferred that Dr Mouskar would have become a party to secreting a diabolical crime committed by the appellant The trial Court expressly held I do not think that at that time Dr Mouskar realised that there was anything suspicious about the death of Laxmibai nor do I think that he was aiding or abetting the suppression of truth by cancelling the postmortem examination The High Court also took the same view We then come to this that if Dr Mouskar had procured the cancellation of the direction for postmortem examination he had done so without thinking that there was anything suspicious about the death of Laxmibai and only to oblige his friend the appellant by saving the family of the deceased from humiliation by cutting up her body Now that being so when Dr Mouskar got the direction cancelled at the appellant s request he would naturally expect the appellant to take charge of the body and to remove it for cremation Evidently the appellant had disappeared for otherwise Dr Mouskar would not have sent him a telegram to Poona What wouldhave been the normal reactions then of an 553 innocent man in Dr Mouskar s position He would have been very much surprised He would have thought that he had been let down It is not too much to think that he would have grown suspicious As an innocent man as he has been found to be the only thing he could then possibly have done was to have restored the direction for postmortem examination and to proceed to take steps to have it held I cannot imagine that an innocent man in such circumstances would have acted otherwise It will be remembered that the appellant s reply to the telegram was not received for over two days and in the meantime Dr Mouskar did nothing in the matter I find it impossible to hold that Dr Mouskar innocent as he was would have waited all this time and done nothing about the postmortem examination at all It would have been impossible for him then to have asked if the doctors in charge of the case still wanted a postmortem examination as he actually did If he was not a party to any conspiracy with the appellant I cannot think it possible for him to have sent the telegram to Poona asking the appellant to remove the body after he had been innocently made to obtain a cancellation of the direction and found that the appellant had disappeared I may also add that if the appellant had duped Dr Mouskar and procured him to obtain a cancellation of the direction for postmortem examination it would be extremely unlikely for him to have taken the risk of disappearing from the hospital without making any arrangement for the disposal of the body for then he could not be sure whether the postmortem would be held or not It would have been more natural for him to have taken over the body and cremated it That would not have affected his design as alleged by the prosecution to have evidence of the natural death of Laxmibai created and to have kept back the know edge of her death from her relatives I therefore think that the telegram instead of showing that Dr Mouskar had already obtained a cancellation of the direction for postmortem examination rather indicates that that direction had not till then been cancelled as is Dr Mouskar s own evidence This makes the explanation 554 of Dr Mouskar as to why he sent the telegram a very probable explanation Now there are other things which would support Dr Mouskar s evidence On November 14 about 4 pm he wrote to the police intimating them that a Hindu female named Indumati Panshe who had been admitted into the hospital on November 13 at 5 45 am for treatment of hysterical fits had died the same day at 11 30 am He further stated in that letter that a telegram had been sent to the address given at the time of the admission of the patient but without a response and requested that the dead body might be removed to the J J Hospital morgue This would indicate two things First that Dr Mouskar was surprised at having received no answer from the appellant to his telegram and that being so if he had been innocently induced to get the case paper altered he would not have permitted the alteration to remain there The second thing it shows is that Dr Mouskar even in the afternoon of November 14 referred to hysterical fits as the illness of the patient This would be impossible if the prosecution case is true namely that at about 1 pm on November 13 Dr Mouskar had procured Dr Anija to state in the case paper that the cause of death was diabetic coma The next thing that the Courts below have found against Dr Mouskar is that his story of having received a telephone call from the Coroner s office on the morning of November 15 asking for the final diagnosis of the case was unbelievable I find no reason to disbelieve Dr Mouskar His evidence is strongly supported by the death certificate which he issued on that date stating diabetic coma as the cause of death There is no reason to think that Dr Mouskar would have issued this certificate on the 15th unless he had been asked about the cause of death Furthermore the police on that date had actually wanted to know the cause of death as will appear from their letter of November 15 If the police could ask I do not see why the Coroner s office could not In that letter the police asked Dr Mouskar to send per bearer the cause of death to enable them to dispose of the dead body I have earlier referred to this letter It is on a copy 555 of this that the endorsement Diabetic coma Dr N section Variava G T Hospital had been made There is no other explanation as to why Dr Mouskar sent the death certificate on this date and not on any other date Indeed if he was under the impression that the appellant or a relative of the deceased would come and take charge of the body for cremation as the prosecution case must be then he would not have issued the death certificate for that was wanted only to enable the police to dispose of the dead body Therefore it seems to me likely that Dr Mouskar had been asked by the Coroner about the cause of death Now if he was so asked it does not strike me as wholly improbable that he asked the physicians in charge whether they were then in a position to state the cause of death or still insisted on a postmortem examination It has to be remembered that till then no suspicion attached to the case Dr Mouskar said that he had seen the physicians change their opinion in such matters and had therefore asked whether a postmortem examination was still required It has also to be remembered that Dr Mouskar had no knowledge that the direction for postmortem examination had been given by Dr Variava All that he knew was that such a direction appeared over the signature of Dr Anija It does not seem to me improbable that Dr Mouskar on being asked by the Coroner to state the cause of death would have enquired of the physicians in charge about it If this version is not true then the only other probable theory would be that the alteration in the case paper had been made at 1 pm on November 13 which as I have earlier said cannot be accepted in view of the telegram and the other records in this case It was also said that Dr Mouskar s version cannot be accepted for it was not possible for him to make enquiries about the cause of death through a ward boy I think this would be too insignificant a ground for disbelieving Dr Mouskar I may now deal with the letter of the police dated November 15 to Dr Mouskar asking for the cause of the death It will be remembered that this letter was sent along with a copy of it and on the copy the endorsement Diabetic coma Dr W section Variava 556 G T Hospital had been made Dr Mouskar denied that these letters ever came to him The Courts below have been unable to accept his denial Their view is that it is Dr Mouskar who got the endorsement set out above to be made and is falsely denying it I am unable to appreciate why Dr Mouskar should falsely deny it He was innocent He had on that date issued the death certificate He could easily have admitted the fact if he had made the endorsement or got it made Now it seems to me that there is no evidence that the letter was produced before Dr Mouskar In normal course as spoken to by police Inspector Kantak who had written this letter the original would have been retained at the office of Dr Mouskar and only the copy would have come back to the police with an acknowledgment of the receipt of the original endorsed on it That did not happen Both the copy and the original were received back by Kantak The bearer who was sent to deliver the letter was not called There is therefore no evidence whatever that the letters were actually delivered or what had actually happened On the contrary the return of both copies to the police would show that they had not been delivered to Dr Mouskar for if the letter had been deliver ed then there is no reason why Dr Mouskar would not have given a formal reply to it stating that diabetic coma was the cause of death He would have had no difficulty in doing so because on the same day he sent the death certificate mentioning diabetic coma as the cause of death He had no reason to take to subterfuge and to get the words Diabetic coma Dr N section Variava G T Hospital written on the copy by somebody It would therefore appear that there is no reason to disbelieve Dr Mouskar when he said that he bad not received the letters and had nothing to do with the endorsement made on the copy of the letter What might have happened was that the death certificate having been earlier issued some clerk in the office returned these letters and by way of an informal communication of the cause of death made the endorse ment on the copy It may be stated here that Dr Anija admitted to the police that the words Diabetic coma in the endorsement had been written by her 557 but in court she denied that she had written them This is another instance which makes me greatly doubt her veracity It may be that she had written the words Diabetic coma and got some one else to write out the rest of the endorsement I come now to the last fact which the Courts below have thought fit to disbelieve in the evidence of Dr Mouskar I have earlier mentioned that when Laxmibai was lying unconscious in Ward No 12 Dr Anija had sent for the Registrar Dr Anija stated that the Registrar whom she sent for was Dr Saify This is untrue for as I have already said it has been proved clearly that Dr Saify was not in Bombay at all on that day Now it appears that the hospital kept a call book in which a House Physician wanting to call the Registrar would make an entry and send it to the Registrar This call book was produced on September 2 1958 and it showed that Dr Anija had herself written down the name of Dr Shah as the Registrar whom she was calling What therefore had happened was that Dr Saify being away on leave to the knowledge of Dr Anija she had sent the call to Dr Shah This call book conclusively proves that Dr Anija s statement that she had been told by Dr Saify the Registrar to make the alteration in the case paper is false Dr Mouskar had said in his evidence that he could not trace this call book The Courts below have thought that he was lying and was deliberately preventing this call book from coming to light so that Dr Anija might not be contradicted by her own writing that it was Dr Shah whom she had sent for which in its turn would show that her story that it was Dr Saify who had asked her to make the alteration in the case paper was false Now Dr Mouskar s evidence was concluded on August 25 1958 and he had retired from the office of the Resident Medical Officer on August 14 preceding Dr Anija s evidence was taken down on August 18 and August 19 1958 1 do not see why if the call book was considered to be of that importance the police could not produce it after Dr Mouskar had left office It was actually produced from the hospital and must have been lying there all the time The next thing to be noticed is that there is 558 nothing on the record to show that Dr Mouskar was interested in establishing that Dr Saify was on duty on November 13 and therefore prevented the call book from being produced In fact Dr Mouskar in his evidence about Dr Saify stated that he was not working in the hospital on the 13 14 and 15 November I think also that he was not staying in his quarters during that period and I did not see Dr Saify on these days at all Therefore there is no basis for suggesting that Dr Mouskar deliberately prevented the production of the call book I may here state that there is nothing in the evidence of Dr Mouskar which goes to show that he was supporting Dr Anija in any of her lies The Courts below have excused the lies of Dr Anija in the view that she had told them as she dared not estrange Dr Mouskar Again there seems to me to be no basis for this finding There is nothing on the record to show that Dr Anija expected anything from Dr Mouskar or would have been in any difficulty if she had told the truth even at the risk of putting Dr Mouskar in a difficult situation There is no evidence that Dr Anija had any talk directly with Dr Mouskar concerning the case of the unconscious Laxmibai and therefore she could not and did not directly contradict anything that Dr Mouskar said Again it is clear from the evidence that Dr Anija had left the hospital on January 31 1957 She had worked there without any remuneration There is no evidence that she had anything to do with the hospital or its Resident Medical Officer after she had left the hospital Again on the date that Dr Anija gave evidence Dr Mouskar had already retired from his office at the hospital In these circumstances I find no justification for the conclusion that Dr Anija had lied only out of fear of Dr Mouskar I might also point out that the only lie in Dr Anija s evidence which the Courts below thought she said out of fear or at the persuasion of Dr Mouskar was her statement that it was Dr Saify who had told her that Dr Mouskar had wanted the direction as to postmortem examination crossed out and diabetic coma written as the cause of death I have earlier stated that dr Mouskar has gone against this part of 559 Dr Anija s evidence by saying that Dr Saify was not in Bombay on the day in question It is clear therefore that it was not Dr Mouskar who had wanted that Dr Anija should interpose Dr Saify between him and her in the matter of the direction for altering the case paper Further if Dr Mouskar really wanted that Dr Anija should put the blame for the alteration on somebody else then Dr Anija would not have mentioned that Dr Saify told her that Dr Mouskar had wanted the alteration She would simply have said that it was at Dr Saify s order only that she made the alteration or put the responsibility on Dr Shah The Courts below have been unable to explain why Dr Anija brought in Dr Saify at all I think this is capable of an explanation as I will show later The net position therefore is that Dr Anija was clearly lying there is no clear proof that Dr Mouskar had lied at all On the contrary his evidence and conduct would seem to be consistent with the contemporaneous record and there is no material on which it can be found that Dr Anija told the lies as she was afraid of Dr Mouskar I come now to the last reason on which the Courts below found that it must have been the appellant who procured the alteration in the case paper It has been said that no one else was interested in getting that done I take it that this does not mean a finding that the appellant was interested in getting the alteration made for then of course his guilt would already have been assumed What it means is that if it is not possible to find reasonably that any one else was interested in getting the alteration made then it would fit in with the theory that the appellant had committed the crime and therefore was interested in getting the alteration made The real question is can it be reasonably said on the evidence that there was no one other than the appellant who could be interested in getting the alteration made I think it cannot On the facts established and without making any assumption one way or the other it seems to me very probable that it was Dr Anija who was interested in preventing the postmortem examination and therefore in making the interpolations on the case paper I will now state m reasons for this view 560 I have earlier stated that Dr Anija examined the urine of the patient at 6 30 am on November 13 There is an entry with regard to it in the case paper which reads Sugar Albumin Acetone There is little reason to doubt that Dr Anija did examine the urine at that time for sugar for otherwise she was not likely to have started the insulin injections She gave two of these one at 6 30 am and the other at about 9 am Dr Variava s recollection is that when the case paper was shown to him about 11 am the entry Sugar Albumin was there but the entry Acetone was not there and that Dr Anija told him that she had not examined the urine for acetone The entry Acetone was clearly interpolated in the case paper later It wasbecause she had not tested the urine for acetone but had none the less started the treatment for diabetic coma that Dr Variava had taken her to task and asked her to test the urine for acetone All this clearly shows that Dr Anija had interpolated the entry Acetone at some later time The trial Court thought that Dr Mouskar having invented the theory of diabetic coma must have also thought it necessary to make entries regarding the presence of acetone in the case record to support this false diagnosis This is nobody s case Such a finding would necessarily mean that Dr Mouskar was in conspiracy with the appellant to hide the crime by creating evidence in support of natural death of the patient The findings of the trial Court that Dr Mouskar was innocent and that he had procured Dr Anija to make the entry Acetone cannot stand together The latter ending must be rejected as it is purely inferential The High Court did not find that the entry Acetone had been made by Dr Anija at the persuasion of Dr Mouskar But it appears to have taken the view that Dr Anija having been induced by Dr Mouskar to state diabetic coma as the cause of death herself incorporated before the papers were submitted to the Coroner an entry with regard to the examination of the urine in the case paper and in that entry included Acetone Whether the High Court is right in its view that the entire entry as to the result 561 of urine test at 6 30 am of November 13 1956 had been made in the case paper later is a matter which I need not discuss The only question is who made the entry Acetone and when I may state here that the papers were sent to the Coroner at the time Of the postmortem examination namely on November 22 1956 According to the High Court therefore the entry Acetone had been made by Dr Anija on her own and Dr Mouskar had nothing to do with it and that Dr Anija made the entry not at about 1 pm on November 13 1956 when she crossed out the direction for postmortem examination and wrote out diabetic coma as the cause of death but almost nine days later The High Court did not accept that part of Dr Mouskar s evidence where he said that he was positive that the entry Acetone was in the case paper when it reached him at 1 pm on November 13 Earlier he had said that he had not read the case paper fully when it first came to him Dr Mouskar was plainly making a mistake It is nobody s case that it was then there Even on the prosecution case it was added sometime later that is when after the receipt of the case paper Dr Mouskar had been persuaded by the appellant to procure a cancellation as to the direction for postmortem examination We then come to this that the entry Acetone had been made by Dr Anija on her own If she did this she must have had some reason for it I cannot imagine that reason being anything else excepting to create evidence in support of her diagnosis of diabetic coma The next lie which Dr Anija spoke and which I wish now to refer is the false story of her telephone talk with Dr Variava at about 7 am She said that she then informed Dr Variava about the condition of the patient and that she had started insulin injection and further that Dr Variava told her to continue the treatment I have earlier said that this statement was a clear falsehood and given reasons for this view It is nobody s case and it could not be that Dr Mouskar had asked her to tell this lie Why then did she do so Again the only possible reason that I can think of is the same that I have given earlier namely that she was keen on creating evidence in support of the line of treatment that she had given to 562 the patient She had been treating the patient as a case of diabetic coma It is clear from her evidence and of course from that of Dr Variava that he had reprimanded her for adopting that line of treatment without having tested the urine for acetone She had clearly made a mistake in the treatment of the case and this might have put her in a difficulty with the hospital authorities and also in her future professional career It was clearly her interest to see that her mistake was not finally established as a result of the postmortem examination which had been directed by Dr Variava In these circumstances she was under a great temptation to prevent the postmortem examination which might have revealed her mistake It must be remembered that she had just started on her professional career and was a very young person I am unable therefore to hold that apart from the appellant there was no one else who could have been interested in crossing out the direction as to postmortem examination and inserting diabetic coma as the cause of death In the circumstances that I have mentioned it seems quite probable that Dr Anija had made the alteration in the case paper entirely on her own and to save herself from the possible effects of her mistake It also seems probable to me that Dr Anija had made the alterations on November 15 when Dr Mouskar had sent the case paper through the ward boy for ascertainment of the cause of death I have earlier said that Dr Anija had falsely introduced Dr Saify as the person who had told her that Dr Mouskar had wanted the direction as to postmortem examination to be crossed out and diabetic coma to be stated as the cause of death I have also said that Dr Mouskar did not support Dr Anija as to the presence of Dr Saify in the hospital on the day in question Why then did Dr Anija introduce the name of Dr Saify I have said that the Courts below have not been able to find any explanation as to why Dr Anija introduced the name of Dr Saify It seems to me that when the alteration which she had made on her own was found out in the course of the investigation she had to give some explanation as to why she had made it She thought of saying that she did it under the orders of Dr Mouskar who was very 563 much her senior and whom she was bound to obey But she also realised that Dr Mouskar was sure to deny that he had asked her to make the alteration and as against his her evidence was not likely to be accepted It was therefore that she hit upon the idea of interposing Dr Saify in between her and Dr Mouskar in the hope that Dr Saify being also a very young person there was some chance of her evidence being accepted as against his Apart from that there does not appear to be any other explanation as to why Dr Anija introduced the name of Dr Saify She had clearly forgotten while inventing this story that Dr Saify was away on leave but that of course makes no difference for if she had remembered it she might have named somebody else probably Dr Shah or Dr Patel who worked in Unit No 2 of the Hospital Then it has to be remembered that Dr Anija admitted to the police that she had written out the words Diabetic coma on the letter from the police of November 15 asking for the cause of death and this she later denied All this would make more probable the view that it was Dr Anija who in order to prevent the detection of the mistake made by her in the treatment of Laxmibai had the endorsement Asked for post mortem crossed out and inserted in the case paper diabetic coma as the cause of death and that she had not been asked by Dr Mouskar to make the alteration in the case paper I think it right to state here that it cannot be said that Dr Shah was also to blame for the wrong diagnosis of diabetic coma Dr Anija said that pursuant to her call the Registrar came at about 8 45 am and approved of her diagnosis and advised a further insulin injection of 40 units She also said that the Registrar wrote on the case paper the words Inj Insulin 40 units Iv glucose 20 cc By the Registrar she was of course referring to Dr Saify It is clear from the call book that it was Dr Shah who was the Registrar of Unit No 2 who had been sent for by Dr Anija Dr Shah said in his evidence that he must have gone to the patient pursuant to the call but he had no recollection of the case at all He denied that the entry Inj Insulin 40 units Iv glucose 20 cc was in his hand writing Dr Patel who was 564 officiating as the Registrar of Unit No 1 in the absence of Dr Saify on leave also denied that that entry was in his handwriting Dr Shah said from the sequenceof time noted in the call book and the case paper that he must have gone to the ward before 6 30 am According to Dr Shaw he could not have seen the case paper when he called because he was not the Registrar of Unit No 1 He admitted that he must have advised Dr Anija about the case What the advice was we do not know It is clear however that Dr Anija had started treating the case as diabetic coma and given 40 units of insulin before she sent for the Registrar Indeed according to her the Registrar who must have been Dr Shah arrived at 845 am So we get that Dr Anija started treatment of diabetic coma and gave insulin prior to 6 30 am and her statement that the Registrar wrote down the direction for a second insulin injection of 40 units at 8 45 am is false It is therefore clear that the treatment given to the unconscious Laxmibai had been under the judgment of Dr Anija alone It would follow that Dr Shah had no responsibility for that treatment This is also supported by the fact that Dr Anija did not tell Dr Variava that Dr Shah had also thought it to be a case of diabetic coma There is another circumstance against the appellant which must now be noticed and that is that the appellant left the hospital soon after the death of Laxmibai without showing the least care as to what happened thereafter This conduct considered with the appel lant s letter of November 14 1956 stating falsely that Indumati s brother would come to take over her body and further considered with the subsequent conduct of the appellant in fraudulently misappropriating the deceased Laxmibai s money clearly indicates that immediately after the death of Laxmibai the appellant had conceived the idea of misappropriating her properties It has been suggested that it would be somewhat strange that the dishonest intention cropped up in the appellant s mind so suddenly and therefore it is reasonable to think that he had entertained that design even during the lifetime of Laxmibai The Courts below have accepted that suggestion I cannot say that that is an unreasonable view to take 565 But supposing the appellant had during Laxmibai s lifetime cast a covetous eye on her properties would that be enough to justify a finding that her death had been an unnatural death I do not think it would The design may provide a motive for murder but the murder that is in this case an unnatural death cannot be proved by it That design does not exclude the possibility that Laxmibai died a natural death and the appellant made full use of the opportunity thereby provided to carry his design into effect I think I should mention here one other aspect of the case The trial Court observed that the symptoms found in the record as to the last illness and death of Laxmibai all clearly pointed to the conclusion that death was due to hypoglycemia and that hypoglycemia might be one of the possible causes of her death The trial Court however held that there was nothing to show in the symptoms that hypoglycemia could have been of spontaneous origin though the matter was not very clear It would seem that the trial Court thought that the hypoglycemia had been induced by two injections of insulin given by the appellant to Laxmibai sometime on November 12 The trial Court for this purpose relied on the evidence of Shantabai a maid servant employed by Laxmibai who said that on November 12 the appellant gave Laxmibai two injections This maid servant was deaf and dumb and her evidence must be of doubtful value However that may be there is nothing to show that death was caused by hypoglycemia brought about by the two injections given by the appellant assuming that he had given them It has to be remembered that in the hospital Laxmibai was given two further injections of insulin of 40 units each It may be that these injections really caused her death That is a possibility which on the finding of the trial Court cannot be brushed aside Now if that is so then clearly the appellant is not responsible for the death of Laxmibai He had done nothing to induce Dr Anija or any of the other doctors in the hospital to give more insulin to Laxmibai There is no evidence to that effect Dr Anija was clear in her evidence that she never consulted Dr Lagu regarding the diagnosis that death was due to diabetic I need not further into this aspect of the 566 matter for all that I wish to point out is that the trial Court had thought that hopoglycemia might be the cause of death The High Court thought that it was not possible in view of the absence of evidence about the time taken for insulin to induce hypoglycemia to hold that death was due to hypoglycemia induced by a massive dose of insulin It seems to me that if there was no evidence that was the fault of the prosecution and not of the appellant In all cases and particularly in a case of this kind it is the duty of the prosecution to prove that the death was an unnatural death and exclude by evidence completely the possibility of death having been caused by some instrumentality other than the appellant This is another reason for saying that it has not been clearly established in this case that Laxmibai s death was an unnatural death or has been caused by the appellant I have so long been discussing the facts which are supposed to lead towards the guilt of the appellant I propose now to deal with some of the facts which seem to be in his favour The prosecution case is that the appellant had in the train administered to her an undetectable poison which caused her death Now if the appellant had done that he must have made a plan for it before he started on the journey to Bombay with her from Poona It seems unlikely that if he had done that he would have made no effort to keep it a secret that he was taking her to Bombay The evidence is clear that he made no such effort The next fact that has to be faced by the prosecution is that the railway compartment would be a most unusualplace in which to administer a poison The appellant could not have expected that there would be a compartment for Laxmibai and himself in which there would be no other passenger Indeed the trial Court thought that there must have been other passengers in that compartment That being so it becomes improbable that the appellant had planned to poison her in the train Again it has been proved as a fact by Dr Sathe himself that the appellant had made an appointment with him for November 13 Was it necessary for him to have done this if he knew that Laxmibai would die before the hour fixed with Dr Sathe Further if he had administered 567 a poison to Laxmibai would he have taken her to a public hospital That would have been impossible unless the appellant was perfectly certain that the poison was absolutely undetectable That requires a great deal of knowledge of poisonous drugs which there is no evidence to think the appellant possessed But assume that the appellant was so certain that the poison would never be detected why then should he have worried about the postmortem examination at all If it is found that the appellant had not prevented the postmortem examination being held there would be very little on which to base his conviction for the murder of Laxmibai by poisoning Nor can it be said that the appellant was not sure whether the poison would be detected or not but none the less took the risk of taking the unconscious Laxmibai to the G Thospital in the hope that if any difficulty arose he could rely on Dr Mouskar to help him There is no evidence on which we can hold that Dr Mouskar would have helped him if any suspicion as to Laxmibai s death having been caused by poision had arisen It has to be remembered that Dr Mouskar was not doing the work of a physician in the hospital but was in charge only of the administration All these are very strong circumstances indicating that the appellant had not administered any poison to Laxmibai on the train Very cogent reasons would be required to dispel the presumption in favour of the appellant arising from them I find no such reasons in the case In the net result the circumstances appear to me to be these First the appellant had a design during Laxmibai s lifetime to misappropriate her properties This only supplies the motive for causing her death but does not prove that the death which occurred was an unnatural death Secondly the appellant did not give to the hospital the correct name of Laxmibai the name given however was not such as from it her identity could never have been discovered Thirdly the appellant gave his own address instead of that of Laxinibai It seems to me that that was a natural thing for him to have done in the circumstances of the case for there would have been no one in Laxmibai s flat to receive her letters and there there was no other address which the appellant could have 568 given Further the address given necessarily connected the appellant with the last hours of Laxmibai slife a conduct not very probable in a person who had brought about her death The theory that that address was given only to ensure that communications from the hospital concerning the dead Laxmibai should reach the appellant is not very plausible It is clear that if the appellant had not given his own address the only other address he could possibly have given would have been Laxmibai s address I am unable to appreciate what communication the hospital could have sent to Laxmibai at her address after her death or when she lay in the hospital In any event the appellant would have had no difficulty in getting hold of any such communication sent to Laxmibai s own address Fourthly the appellant told Dr Ugale that Laxmibai had had a hysterical fit It is doubtful whether he said so and also whether if he did it was purposefully false What purpose it served is not clear The appellant did not mention hysterical fit to the doctor in charge of the treatment nor did he do anything to induce her to take a different line of treatment from that which she had adopted He did nothing to induce any idea in her mind as to the cause of the illness or the disease In these circumstances it does not seem possible to hold that hysterical fit had been mentioned by the appellant to prevent detection of the fact that Laxmibai had been poisoned Lastly come the series of the appellant s acts from immediately after Laxmibai s death indicating his intention to acquire her properties and the acquisition thereof by deception and forgery These cannot prove that Laxmibai died an unnatural death Considering them all together I am unable to think that the only reasonable conclusion possible is that Laxmibai died an unnatural death In my view the prosecution has failed to prove the guilt of the appellant In the result I would allow the appeal BY COURT In accordance with the opinion of the majority the appeal is dismissed Appeal dismissed

The respondent brought a suit for partition against the petitioner in respect of certain Watan lands The trial court decreed the suit but the High Court of Bombay reversed that decreein appeal The Privy Council restored the decree of the trial court and an Order in Council was drawn up accordingly Execution of the said decree was resisted by the petitioner on the ground that the lands in suit being admittedly remuneration attached to the office of the Patil and as such governed by the Bombay Hereditary Offices Act 1874 Bom III of 1874 were not liable to partition A certificate under section 1o of the Act was issued by the Collector at the instance of the petitioner and the executing Court cancelled the execution case The respondent appealed to the High Court and that court following its own Full Bench decision in Rachapa vs Amingouda 1881 V Bom 283 held the certificate to be invalid since it was not addressed to the Privy Council which had passed the decree and set aside the order of the executing court Thereafter a fresh certificate under section 1o of the Act was issued by the Collector and addressed to this Court and the petitioner applied to this Court under that section for the cancellation of the said decree granted by the Order in Council the Privy Council having ceased to have any jurisdiction in the meantime The question for decision was whether as a result of the constitutional changes this court could be said to have passed the decree and could entertain the petition Held that the petition must be allowed The combined effect of sections 5 and 8 of the Abolition of the Privy Council jurisdiction Act 1949 and articles 3742 and 135 of the Constitution was that this petition which lay to the Privy Council before it ceased to exercise its jurisdiction could be presented to the Federal Court before the commencement of the Constitution and thereafter to this Court The certificate issued by the Collector and addressed to this Court was therefore valid and must be given effect to

Civil Appeals Nos 40 to 110 of 1955 Appeals from the judgment and order dated November 12 1953 of the former Judicial Commissioner s Court Vindhya Pradesh Rewa in Misc Applications Writ Nos 51 to 119 and 121 of 1953 C K Daphtary Solicitor General of India M Adhikari Advocate General for the State of Madhya Pradesh and I N Shroff for the appellant in CAs 40 to 109 of 55 and respondent in CA No 11055 K B Asthana section N Andley J B Dadachanji Rameshwar Nath and P L Vohra for the respondents in CAs Nos 40 51 52 54 65 and 100155 and appellant in CA No 11055 February 24 The Judgment of the Court was delivered by 108 WANCHOO J These seventy one appeals on certificates granted by the Judicial Commissioner of Vindhya Pradesh arise out of seventy petitions under article 226 of the Constitution filed before that Court challenging the constitutionality of the Vindhya Pradesh Abolition of Jagirs and Land Reforms Act No XI of 1952 hereinafter called the Act They were disposed of by a common judgment by the Judicial Commissioner We shall also dispose of these appeals by a common judgment Seventy Nos 40 to 109 out of these appeals are by the State of Vindhya Pradesh now Madhya Pradesh while one No 110 is by the Brijindar Singh a jagirdar The case of the petitioners in the Court of the Judicial Commissioner was that the Act was unconstitutional as various provisions in it placed an unreasonable restriction on the exercise of the fundamental rights guaranteed to the petitioners under Part III of the Constitution The Judicial Commissioner held that the Act was constitutional except for three provisions thereof namely section 221 section 37 and cl 4 e of the Schedule to the Act The seventy appeals by the State are with respect to this part of the order declaring these three provisions unconstitutional The appeal of Brijindar Singh is against that part of the order by which the rest of the Act was held constitutional We shall first deal with the appeal of Brijindar singh Learned counsel for Brijindar Singh was unable and in our opinion rightly to challenge the constitutionality of the Act as a whole in view of article 31 A of the Constitution and the decisions of this court in The State of Bihar vs Maharajadhiraja Sir Kameshwar Singh 1 Visweshwar Rao vs The State of Madhya Pradesh 2 Raja Suriya Pal Singh vs The state of UP 3 K C Gajapati Narayan Deo vs The State of Orissa 4 Thakur Amar Singhji vs The State of Rajasthan 5 Raja Bhairebendra Narayan Bhup vs he State of Assam 6 Sri Ram Ram Narain vs The state of Bombay 7 Raghubir Singh vs The State of Ajmer now Rajasthan 8 and Atma Ram vs The State of Punjab 9 relating to similar legislation in the 1 2 3 4 1954 SCR i 5 6 1956 SCR 303 7 1939 SUPPL 1SC R 499 8 1959 Suppl 1 SCR 478 9 1959 Suppl 1 SCR 748 109 States of Bihar Madhya Pradesh Uttar Pradesh Orissa Rajasthan Assam Bombay Ajmer and Punjab It is not necessary therefore to examine the provisions of the Act in detail In the circumstances Appeal No 110 is dismissed but as it was not pressed we think it right that the parties should bear their own costs of this appeal Now we turn to the appeals by the State The object of the Act is to resume jagir lands 5 provides for the appointment of a date for the resumption of any class of jagir land by notification and power is given to the State Government to fix different dates for different classes of jagir lands 6 provides for the consequences of such resumption Sec 7 however lays down that notwithstanding anything contained in section 6 certain lands will remain in possession of jagirdars and cl a thereof is material and may be quoted here The jagirdar shall continue to remain in possession of his sir and khudkasht to the extent and subject to the conditions and restrictions specified in Ch Sec 10 and the subsequent sections appearing in Ch III of the Act provide for compensation and the Schedule provides the manner in which the compensation shall be computed Then comes Ch IV which deals with sir and khudkasht lands 20 provides for an application by the jagirdar for allotment of land for personal cultivation 21 provides for an enquiry by the Tahsildar on such application in the prescribed manner and the allotment of land and the issue of a patta thereof to the jagirdar having regard to the remaining provisions of the Chapter Then comes section 22 which may be quoted in full 1 A jagirdar shall be allotted all sir and khudkasht lands which he was cultivating personally for a continuous period of three years immediately preceding the date of resumption 2 A jagirdar whose jagir lands have been resumed under this Act a who is not allotted any sir or khudkasht land under sub section 1 or 110 b who had been allotted any such land which is less than the minimum area may if he applies in this behalf be allotted any other sir or khudkasht land in his personal cultivation at the date of resumption or where there is no such land or sufficient area of such land any unoccupied cultivable waste land in the jagir land subject to availability of such land so that i in a case falling under cl a the total area allotted to him under this sub section is equal to the minimum area and ii in a case falling under cl b the area allotted to him under this sub section together with the area allotted under sub section 1 is equal to the minimum area Explanation In this sub section the expression minimum means ten per cent of the total cultivated land in the jagir land at the date of resumption or 30 acres whichever is greater Provided that in no case the minimum area shall exceed 250 acres Chapter V deals with rights of tenants grove holders and occupants in jagir land and confers certain benefits on them Chapter VI provides for the machinery and the procedure for carrying out the purposes of the Act The last section 42 gives power to the State Government to make rules to carry out the purposes of the Act The learned Judicial Commissioner has held that section 221 is a colourable piece of legislation The scheme of section 22 is to give effect to section 7a by which certain lands were allowed to remain in the possession of the jagirdar Section 221 lays down that all sir and khudkasht lands which a jagirdar was cultivating personally for a continuous period of three years immediately preceding the date of resumption shall be allotted to him by the Tahsildar Sub section 2 provides for those cases where there is no land which can be allotted to a jagirdar under sub section 1 or where the land which can be allotted to him under sub sec tion 1 is less than the minimum area as defined in the section In such a case the jagirdar can be allotted any other sir or khudkasht land in his personal culti 111 vation at the date of resumption upto the minimum area Where however the minimum is not reached even after such allotment the jagirdar can be allotted under sub section 2 any unoccupied cultivable waste land in the jagir subject to availability of such land upto that area The minimum area means ten per cent of the total cultivated area in the jagir at the date of resumption or 30 acres whichever is greater subject to the proviso that in no case the minimum area shall exceed 250 acres In other words section 22 1 provides that in the first instance the jagirdar will get all his sir and khudkasht land which he had been cultivating for three years continuously before the date of resumption If however there is no such land or if the land of this kind allotted to a jagirdar is less than the minimum area he will be entitled to further allotment out of the sir or khudkasht land in his possession for less than three years to make up the minimum area Lastly if the minimum area is not made up even by allotment of such land which has been in the jagirdar s possession for less than three years he will be entitled to allotment of unoccupied cultivable waste land subject to availability of such land to make up the minimum area but the provisions of sub section 2 are subject to a minimum of 250 acres We have not been able to understand how these provisions can be called a piece of colourable legislation The learned Judicial Commissioner seems to be of the view that as a period of three years continuous cultivation is made a condition of allotment under section 221 there is discrimination between jagirdars and other occupants of land in whose case section 281 provides that every person who is entered in the revenue record as an occupant of any jagir land at the date of resumption shall be deemed to be pattadar tenant in respect of such land which shall be assessed at the village rate The learned Judicial Commissioner was not unconscions of the provisions of article 31 A which lays down that no such legislation would be struck down on the ground of discrimination under article 14 He however thought that this was an extra condition which had been imposed so that the jagirdar mightbe deprived of as much sir and khudkasht land as possible subject 112 to the minimum and that this was done to create in convenience to the jagirdars whom the legislature did not like He therefore thought that such legislation was altogether outside the power of the legislature and was invalid as a colourable piece of legislation In the first place we cannot see how any discrimination can arise in circumstances like this for the jagirdars are obviously one class while the occupants of lands other than jagirdars belong to another class Secondly even if it could be held that jagirdars and other occupants of land stood in the same class and there was discrimination under section 221 as compared to section 281 such discrimination could not be a ground for striking down section 221 in view of the specific constitutional provision in article 31 A It was because of this difficulty that the learned Judicial Commissioner did not strike down section 221 on the ground of discrimination but held that it was a colourable piece of legislation What is a colourable piece of legislation has been laid down by this Court in K 0 Gajapati Narayan Deo vs The State of Orissa 1 It was pointed there that The question whether a law was a colourable legislation and as such void did not depend on the motive or bona fides of the legislature in passing the law but upon the competency of the legislature to pass that particular law and what the courts have to determine in such cases is whether though the legislature has purported to act within the limits of its powers it has in substance and reality transgressed those powers the transgression being veiled by what appears on proper examination to be a mere pretence or disguise The whole doctrine of colourable legislation is based upon the maxim that you cannot do indirectly what you cannot do directly Applying this principle it is obvious that the Vindhya Pradesh legislature in this case had full competence to make this provision under Entry 18 List II of the Seventh Schedule There is no question here of transgressing those powers and veiling the transgression under a pretence or disguise We do not think it was proper for the Judicial Commisisioner to 1 1954 SCR 1 113 ascribe motives to the legislature as he seems to have done by saying that the provision was made for creating inconvenience to a class whom the legislature did not like Nor do we think that there is any force in the argument that article 31 A has no application to provisions dealing with allotment of land for sections 7 and 22 of the Act work out the scheme of acquisition of estates and are incidental provisions which are equally protected under that Article along with the main provisions contained in sections 5 and 6 of the Act see Raghubir Singh vs The State of Ajmer now Rajasthan 1 The provisions of section 22 as a whole provide a scheme for carrying out the intention of the legislature expressed in section 7a of the Act and are in our opinion perfectly constitutional We now turn to section 37 of the Act That section appears in the procedural part of the Act and is as follows 1 No civil court shall have jurisdiction to settle decide or deal with any question which is by or under this Act required to be settled decided or dealt with by the Tahsildar the Deputy Commissioner the Land Reform Commissioner or the Board of Revenue 2 Except as otherwise provided in this Act no order of a Tahsildar a Deputy Commissioner the Land Reform Commissioner or the Board of Revenue under this Act shall be called in question in any court Sub section 1 thus takes away the jurisdiction of the civil court to decide any matter which under the Act is to be decided by the Tahsildar the Deputy Commissioner the Land Reform Commissioner or the Board of Revenue Sub section 2 provides that no order passed by any of these authorities shall be called in question in any court The learned Judicial Commissioner has held this section invalid on the ground that itis repugnant to section 9 of the Code of Civil Procedure inasmuch as it takes away the jurisdiction of the civil court which it has under that section 9 lays down that the civil courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred 1 1959 Suppl 1 CR 478 therefore gives jurisdiction to civil courts to try all suits of a civil nature excepting those which are expressly or impliedly barred by any other law The provision of section 37 is an express bar to the matters dealt with in the Act being agitated in civil courts The learned Judicial Commissioner seems to think that section 9 takes away the power of the legislature of a Part State like Vindhya Pradesh to legislate with respect to the jurisdiction of courts The power to the legislature is given by Entry 3 List 11 and cannot be affected by section 9 of the Code of Civil Procedure As a matter of fact section 9 recognises that if a competent legislature passes a law barring the jurisdiction of a civil court the jurisdiction of the civil court to take cognizance of such suit even though of a civil nature is ousted It was in our opinion unnecessary to go into section 22 of the Government of Part C States Act No XLIX of 1951 and compare it with article 254 of the Constitution in this connection 37 does not in any way affect section 9 All that it provides is that civil courts shall have no jurisdiction to hear certain matters of a civil nature and section 9 expressly recognizes that if such a provision is made by any law the jurisdiction of the civil courts will disappear There is thus no question of any repugnancy between section 9 of the Code of Civil Procedure and section 37 of the Act The legislature in this case had power to make a provision like section 37 and once it did so the last part of section 9 will apply and the jurisdiction of the civil courts will become barred by virtue of section 9 read with section 37 of the Act The decision of the Judicial Commissioner there fore that section 37 is ultra vires the powers of the Vindhya Pradesh legislature is not correct Lastly we come to el 4 e of the Schedule The Schedule provides for the method of computing compensation Clause 3 lays down the manner in which the gross income of a jagirdar shall be arrived at Clause 4 lays down how net income will be arrived at after making certain deductions One of these deductions is in sub cl e of this Clause which is as follows Where the jagirdar is allotted any sir or khudkasht or other land or any grove under this Act an 115 amount equal to the valuation of rent for such land or grove for the basic year at the current settlement rates less the land revenue paid by him in respect of such land and grove in the basic year to be ascertained in such manner as may be prescribed This sub clause is in fact a contra entry to sub cl b i of cl The method of calculation provided by these two clauses is that the gross income is first arrived at without taking into account the land which remains with the jagirdar under section 7 a Thereafter in order to arrive at the net income for the purpose of compensation the rent for sir and khudkasht land which remains with the jagirdar is taken into account and its value determined under el 3 b i minus the revenue payable in respect thereof This is then deducted from the gross income for the reason that this land remains with the jagirdar The learned Judicial Commissioner thinks that the arithmetical result of this provision is that so far as these lands are concerned the landlord has lost his proprietary interest and has to pay rent to the government but at the same time gets no compensation it should however be noted that though the landlord may have to pay rent in future for the land remaining with him he does not pay any revenue which was payable by him so far with respect to such land In the circumstances it cannot be said that he has been deprived of the proprietary interest without any compensation for he is relieved of the charge of paying land revenue which has also been taken into account in arriving at the net assets for that purpose and that is all that he can expect considering that the land remains in his possession for all other purposes We are therefore of opinion that there is nothing unconstitutional in el 4 e of the Schedule We therefore dismiss Appeal No 110 but order parties to bear their own costs We allow Appeals Nos 40 to 109 and hold that section 22 1 section 37 and cl 4 e of the Schedule are valid and constitutional As the respondents in these appeals have not seriously contested them we order parties to bear their own costs Appeal No 110 dissmissed Appeals Nos 40 to 109 allowed

The first respondent filed an election petition for an order that the election of the appellant be declared void on the ground that the appellant had committed the corrupt practice under section 1235 of the Representation of the People Act 1951 in that he had hired a tractor for conveying women electors from their houses to places of polling and back By an amendment application the first respondent gave particulars about the conveying of voters but he did not give any particulars regarding the contract of hiring nor did the appellant ask for such particulars At the trial the first respondent led evidence in respect of the contract of hiring and the appellant raised no objection to the relevance of that evidence The Election Tribunal dismissed the petition but on appeal the High Court held the charge proved and declared the election of the appellant void The appellant contended that the election petition ought to have been dismissed because particulars of the contract of hiring which was an essential ingredient of the corrupt practice had not been given Held per Sinha Lc J jafer Imam K N Wanchoo and J C Shah jj that the corrupt practice under s I235 was the conveying of electors to and from the polling station and not the contract of hiring If the election petition gave particulars about the use of a vehicle for conveying of electors to and from the polling station the failure to give particulars of the contract of hiring as distinguished from the fact of hiring did not render the petition defective An election petition was not liable to be 92 dismissed in limine merely because full particulars of a corrupt practice alleged were not set out If an objection was taken and the Tribunal was of the view that full particulars had not been set out the petitioner had to be given an opportunity to amend or amplify the particulars It was only in the event of noncompliance with the order to supply the particulars that the charge which remained vague could be struck out Besides in the present case no material prejudice was caused to the appellant by the absence of the particulars of the contract of hiring Sarkar J Under section 1235 the hiring of the vehicle for conveyance of electors was an essential element of the corrupt practice and it was necessary to give particulars of the contract of hiring But the failure to give such particulars did not render the petition liable to be dismissed Section 83 of the Act did not provide for the dismissal of the petition for failure to furnish particulars nor did section 903 empower the Tribunal to dismiss a petition for non compliance with the provisions of section 83 The appellant was entitled to apply for particulars but he did not do so he could not at a later stage complain about the absence of the particulars

Civil Appeal No 23 of 1958 Appeal by special leave from the decision dated September 29 1956 of the Labour Appellate Tribunal Bombay in Appeal Mad No 96 of 1956 arising out of the Award dated April 9 1956 of the Industrial Tribunal Madras in ID No 52 of 1954 A V Viswanatha Sastri and Naunit Lal for the appellants T section Venkataraman and M K Ramamurth for the respondents February 22 The Judgment of the Court was delivered by GAJENDRAGADKAR J The appellant the Tinnevelli Tuticorin Electric Supply Co Ltd Tuticorin is an electric supply undertaking and it carries on its business as a licensee under the State Government of 70 Madras subject to the provisions of the Act 9 of 1910 and the Electric Supply Act 1948 Act 54 of 1948 This latter Act will hereinafter be called the Act The business of the appellant consists of buying electric supply from the State Hydro electric Projects and of supplying the same to consumers within the areas specified in its licence this area is in and around Tinnevelli and Tuticorin Municipalities The appellant s workmen hereinafter called the respondents made several demands in respect of their terms of employment These demands gave rise to an industrial dispute which was referred by the Madras Government to the Industrial Tribunal at Madurai for adjudication under section 101c of the XIV of 1947 Amongst the items thus referred for adjudication was included the respondents claim for additional bonus for the year 1952 53 Without prejudice to its contention that the appellant was not liable to pay bonus it had in fact voluntarily paid two months basic wages by way of bonus to the respondents The respondents however claimed additional bonus and this claim was one of the items of dispute referred to the tribunal for its adjudication Before the industrial tribunal the appellant contended that since it was working as a licensee under the Act no claim for bonus was admissible outside the provisions of the Act In support of this plea the appellant relied on the scheme of the Act which restricted the profit making of the electricity concerns to a prescribed limit with a possibility of a surplus only in cases of overcharging provided for in the rules The appellant s case was that having regard to the scheme object and the background of the Act under which the appellant was carrying on its busi ness the respondent s claim for additional bonus was wholly misconceived No claim for bonus can be entertained it was urged on behalf of the appellant without reference to the provisions of the Act which governs the business of the appellant The tribunal however rejected the appellant s contentions and held that the appellant was liable to pay two months basic wages as additional bonus to 71 the respondents This award was passed on March 4 1955 Against this award the appellant preferred an appeal No 56 of 1955 to the Labour Appellate Tribunal and contended that no additional bonus should have been awarded in the absence of proof of an excess of clear profits over reasonable return it was the appellant s case that it was only from excess of clear profits over reasonable return as defined by the Act that bonus can be legitimately awarded to the respondents It appears that about this time a number of appeals raising the same question were pending before the Labour Appellate Tribunal and decisions given by the Labour Appellate Tribunal showed divergence of opinion on the question about the effect of the Act in respect of the claim for bonus made by employees of electricity concerns and undertakings That is why the Chairman of the Labour Appellate Tribunal issued an administrative order that all appeals which raised the said question should be grouped together and posted for hearing before a specially constituted fuller bench of five members The Chairman thought that a decision by a fuller bench would finally resolve the apparent conflict disclosed in several decisions pronounced thereto and give proper guidance to the tribunals in future The special bench of the appellate tribunal then heard the group of appeals including the appeal preferred by the appellant It held that bonus could be ordered to be paid notwithstanding the limitations of the Act and that the quantum of bonus should be determined even in the case of electricity concerns or undertakings by the application of the Full Bench formula laid down in that behalf Having decided the question of law in this manner the appeals were remanded to the respective benches of the Labour Appellate Tribunal for disposal in accordance with law The appeal preferred by the appellant was in due course taken up by the Industrial Tribunal at Madras the Industrial Tribunal at Madurai having been in the meanwhile abolished and the appeals on its file transferred to the Industrial Tribunal at Madras This latter tribunal considered the merits 72 of the contentions raised by the parties applied the Full Bench formula and ultimately passed an award on April 9 1956 directing the appellant to pay an additional bonus of two months basic wages to the respondents Thereupon the appellant preferred another appeal to the Labour Appellate Tribunal and it was numbered as Appeal Madras No 96 of 1956 Certain contentions were raised before the appellate tribunal on the merits and it was urged that the direction to pay an additional bonus of two months basic wages was improper and unjustified The appellate tribunal negatived most of the contentions raised by the appellant but it was satisfied that the calculation made by the tribunal in regard to the quantum of available surplus was erroneous and so after rectifying the said error it held that the additional bonus which the appellant should pay to the respondents was one month s basic wage It is against this decision of the appellate tribunal that the present appeal by special leave has been filed by the appellant before this Court The main question which the appeal raises for our decision is whether the fuller bench of the Labour Appellate Tribunal was justified in holding that the Full Bench formula can and should be applied in adjudicating upon the respondents claim for bonus against the appellant Incidentally we may point out that the fuller bench of the Labour Appellate Tribunal in the case of U P Electricity Supply Co Ltd Ors vs Their Workmen 1 has decided two questions of law The first was in regard to the applicability of the Full Bench formula to the employees claim for bonus against their employers carrying on the business of the supply of electricity and the second was in regard to the extent of the statutory depreciation allowed by the Full Bench formula The question was whether it should not include initial depreciation and additional depreciation which are given for the purpose of allowing relief in the matter of taxation under section 102 vi b of the Income tax Act The fuller bench had decided that in allowing a prior charge in the 1 73 working of the formula it is only the normal incometax depreciation including multiple shift depreciation that should be allowed The correctness of this latter decision was challenged before this Court in Sree Meenakshi Mills Ltd vs Their Workmen 1 but the challenge failed and the decision of the fuller bench was confirmed In the present appeal it is the correctness of the fuller bench decision on the first question which is challenged before us Let us being by stating briefly the appellant s contention It is urged on behalf of the appellant that it is only where the clear profits are in excess of the reasonable return under the Act that a case for the payment of bonus can really arise in regard to the electricity concerns and undertakings The Act is a self contained code intended to regulate the business and affairs of electricity concerns including the claim of their employees for bonus and as such an industrial dispute between such concerns and their employees in regard to bonus must be determined solely by reference to the provisions of the Act and and not by the application of the Full Bench formula As to the quantum of bonus which should be awarded it would depend upon the circumstances in each case but it is urged that it may as an ad hoe measure be decided that 14th of the excess between clear profits and the reasonable return may be taken as a fair quantum of bonus which electricity concerns should be ordered to pay to their employees Before dealing with the validity of this argument it is necessary to examine the scheme of the Act Let us first consider some of the provisions in the 9 of 1910 which may be relevant Section 32di provides that the State Government may on an application made in the prescribed form and on payment of the prescribed fee if any grant after consulting the State Electricity Board a licence to any person and that the said licence may prescribe such terms as to the limits within which and conditions under which the supply of energy is to be compulsory or permissive and generally as to such matters as the State Govern 1 74 ment may think fit Section 3f provides that the provisions contained in the Schedule shall be deemed to be Incorporated with and to form part of every licence granted under this Part except as in the manner therein described Section 41b empowers the State Government inter alia to revoke the licence where the licensee breaks any of the terms or the conditions of his licence the breach of which is expressly declared by such licence to render it liable to revocation Section 71 provides to the authorities specified in it option to purchase the undertaking Section 11 requires the licensee to prepare and render to the State Government or to such authority as the State Government may appoint in that behalf on or before the prescribed date in each year an annual statement of account of his undertaking made up to such date in such form and containing such particulars as may be prescribed in that behalf Section 22 imposes on the licensee obligation to supply energy subject to the conditions prescribed and section 23 provides that a licensee shall not in making any agreement for the supply of energy show undue preference to any person The licensee cannot also charge for such supply any rates higher than those permitted The appropriate Government is authorised to fix the maximum charges and by appropriate rules both the maximum and minimum charges have been prescribed These are the relevant provisions of Act 9 of 1910 Let us now refer to some of the relevant provisions of the Act Section 57 provides the licensee s charges to consumers According to it the provisions of the Sixth Schedule and the Seventh Schedule shall be deemed to be incorporated in the licence of every licensee not being a local authority in the manner specified by it This section further provides inter alia that as from the specified date the licensee shall comply with the provisions of the said Schedules and not provisions of Act 9 of 1910 and the licence granted to him thereunder and of any other law agreement or instrument applicable to the licensee shall in relation to the licence be void and of no effect in so far as they are inconsistent with the 75 provisions of section 57A and the said Schedules Section 57 deals with the licensee s charges to the consumers and lays down provisions which shall have effect in relation to the licence where the provisions of the Sixth Schedule and the table appended to the Seventh Schedule are under sub section 1 deemed to be incorporated in the said licence These provisions relate to the appointment of the Board and the rating committee Section 57A prescribes the principles and the procedure which has to be followed by the rating committee in making its report to the State Government regarding the charges for electricity which the licensee may make to any class or classes of consumers This provision gives us an idea as to the object which the Legislature had in mind in ultimately fixing the minimum and maximum rates chargeable to the consumers Sections 78 and 79 provide for power to make rules and regulations Nine Schedules are attached to the Act Schedule Six deals with the financial principles and their application Schedule Seven deals with the depreciation of assets Schedule Eight provides for the determination of cost of production of electricity at generating stations and schedule Nine prescribes the method for allocation of costs of production at generating stations It is necessary at this stage to refer briefly to some of the provisions contained in the Sixth Schedule because Mr Viswanatha Sastri for the appellant has relied on the scheme of the said Schedule in support of his principal argument These provisions prescribe the financial principles which have to be followed by the electricity concerns and undertakings covered by the Act It is urged by the appellant that these principles along with the rest of the Schedules and the provisions of the Act constitute a self contained code which govern the business and the financial affairs of electricity concerns and as such even the claim of the appellant s employees for bonus must be dealt with in the light of these provisions Paragraph 1 of Sixth Schedule provides 1 Notwithstanding anything contained in the 9 of 1910 except sub section 2 of section 22A and the provisions In the 76 licence of a licensee the licensee shall so adjust his rates for the sale of electricity whether by enhancing or reducing them that his clear profits in any year of account shall not as far as possible exceed the amount of reasonable return This provision is made subject to four provisos which it is unnecessary to mention Paragraph 2 reads thus II 1 If the clear profit of a licensee in any year of account is in excess of the amount of reasonable return one third of such excess not exceeding five per cent of the amount of reasonable return shall be at the disposal of the undertaking Of the balance of the excess one half shall be appropriated to a reserve which shall be called the Tariffs and Dividends Control Reserve and the remaining half shall either be distributed in the form of a proportional rebate on the amounts collected from the sale of electricity and meter rentals or carried forward in the accounts of the licensee for distribution to the consumers in future in such manner as the State Government may direct 2 The Tariffs and Dividend Control Reserve shall be available for disposal by the licensee only to the extent by which the clear profit is less than the reasonable return in any year of account 3 On the purchase of the undertaking under the terms of its licence any balance remaining in the Tariffs and Dividends Control Reserve shall be handed over to the purchaser and maintained as such Tariffs and Dividends Control Reserve Paragraph 3 provides for the creation from existing reserve or from the revenue of the undertaking a reserve to be called Contingencies Reserve Paragraph 4 prescribes the manner in which the licensee shall appropriate to Contingencies Reserve from the revenues of each year of account Paragraph 6 directs that there shall be allowed in each year in respect of depreciation of fixed assets employed in the business of electricity supply such an amount as would if set aside annually throughout the prescribed period and accumulated at compound interest at 4 per 77 cent per anum produce by the end of the prescribed period amount equal to 90 per cent of the original cost of the asset after taking into account the sums already written off or set aside in the books of the undertaking annual interest on the accumulated balance will be allowed as expense from revenue as well as the annual incremental deposit Paragraph 7 deals with assets which have ceased to be avilable for use through obsolescence inadequacy superfluity or for any other reason and it allows the licensee to describe the said assets as no longer in use and no further depreciation in respect thereof shall be allowed as a charge against the revenue Paragraph 8 prohi bits any further depreciation where an asset has been written down in the books of the undertaking to 10 per cent or less of its original cost Under paragraph 9 where a fixed asset is sold for a price exceeding its written down cost the excess has to be credited to the Contingencies Reserve Paragraph 10 requires the consent of the State Government to carry sums to a reserve or to declare a dividend in excess of 3 per cent on share capital or other matters specified therein Paragraph 13 imposes limitations in respect of ordinary remunerations of managing agents whereas paragraph 14 provides that the Board of Directors shall not contain more than 10 directors and paragraph 15 prescribes the way in which the licensee can make any capital expenditure which exceeds Rs 25000 or 2 per cent of the capital base within three years before the next option of purchase under the licence arises Paragraph 16 contains an arbitration clause Paragraph 17 gives definitions for the purpose of this Schedule Capital base is defined by paragraph 171 clear profit is defined by paragraph 172 as meaning the difference between the amount of income and the sum of expenditure plus specific appropriations made up in each case as prescribed in several sub clauses of clauses a b and c It is necessary to refer to two sub clauses under clause b xi other expenses admissible under the law for the time being in force in the assessment of Indian Income tax and arising from and ancillary or incidental to the business of electricity supply 78 xii contributions to Provident Fund staff pension gratuity and apprentice and other training schemes Paragraph 179 defines a reasonable return as meaning in respect of any year of account the sum of the following a the amount found by applying the standard rate to the capital base at the end of that year b the income derived from invesments than those made under paragraph IV of this Schedule c an amount equal to one half of one per centum on any loans advanced by the Board under subparagraph 2 of paragraph I of the First Schedule One of the points which we have to decide in the present appeal is whether an amount of bonus paid by the employer to his employees is included under paragraph 17 2 bxi of the Sixth Schdule It would thus be clear that the provisions of the Act in general and those of the Sixth Schedule in particular are no doubt intended to control and regulate the rates chargeable to consumers and to provide the method and the machinery by which the electrical system of the country could be properly coordinated and integrated The rates chargeable are fixed so is a reasonable return provided for But it is not as if the Act intends to guarantee a minimum return to the undertaking What it purports to do is to prohibit a return higher than the one specified Appropriations permissible under revenue receipts are also defined and enumerated and a clear profit as contemplated by the Act is also prescribed and defined Large powers have been given to the Electricity Authority Boards and Councils for the purpose of canalising the activities of the concerns as well as for adjusting their activities for changing conditions and circumstances Just as the Act has made provision for the control of rates chargeable to consumers its policy also is to give a fair deal to the undertaking and persons engaged in the business of supplying electricity It is with this twin object that a working sheet is required to be prepared under the provisions of the Act It is however clear that the working sheet thus prescribed is essentially 79 different from the balance sheet and profit and loss account which companies keep under the provisions of the Companies Act The determination of clear profits on the basis of the working sheet proceeds on the consideration of previous losses contributions towards the arrears of depreciation and several appropriations authorised by the State Government matters which have no relevance to commercial accounting The principles of commercial accounting on which the balance sheets are prepared and profit and loss account made are very different from the principles on which the working sheet as specified in the Act is required to be prepared The question which arises for our decision is whether the appellant is right in contending that the present dispute arising from the respondents claim for bonus must be decided by the provisions of the Act alone and that the Full Bench formula is wholly inapplicable for the purpose In dealing with this contention it is necessary to bear in mind that the fields covered by the Full Bench formula and by the provisions of the Act are entirely different The Full Bench formula has been evolved by industrial adjudication for the purpose of doing social justice to workmen and it is now well established that the workmen s claim for bonus is justified on the ground that they contribute to the employer s profit and are entitled to claim a share in the said profit with a view to fill the gap between their actual wages and the living wage which they aspire to earn On the other hand the Act does not purport to deal with this problem at all It is significant that though the Act makes detailed provisions in respect of matters intended to be covered by it it does not refer to the wages which the employer may have to pay to his employees Can it be said that in fixing the wage structure as between an electricity undertaking and its employees considerations of social justice would be irrelevant In fixing such wage structure none of the provisions of the Act can afford the slightest assistance to industrial tribunals That task must be attempted by the tribunals in the light of principles of social justice and other relevant considerations such as the capacity of the employer to pay and the wages 80 received by employees in comparable trades in the same region Just as the problem of wage structure has to be solved in the case of electricity concerns apart from the provisions of the Act and in the light of the relevant industrial principles so must the problem of bonus be resolved in the like manner There is really no conflict between the Act and the principles of industrial adjudication In fact they cover different fields and their relevance and validity is beyond question in their respective fields As we have just indicated the method of accounting required by the Act in preparing the working sheet is substantially different from the commercial method of accounting which yields the gross profits in the form of profit and loss account Determination of gross profit is the first step which industrial tribunals take in applying the Full Bench formula Such gross profit cannot be ascertained from the working sheet prepared under the Act It is not denied that the appellant has to keep accounts under the Companies Act on a commercial basis That being so in dealing with the respondents claim for bonus it is the balance sheet and the profit and loss account prepared by the appellant that must be taken as the basis in the present proceedings and that is precisely what the tribunals below have done Therefore we are satisfied that the Labour Appellate Tribunal was right in coming to the conclusion that the respondents claim for bonus must be governed by the application of the Full Bench formula In this connection it may be useful to refer to the decision of this Court in the case of Baroda Borough Municipality vs Its Workmen 1 One of the points raised on behalf of the Baroda Borough Municipality in resisting the claim for bonus by its workmen was that the scheme of the Bombay Municipal Boroughs Act 18 of 1925 by which the Municipality was governed did not permit the making of any claim for bonus and so it was not open to the labour court or tribunal to direct payment of bonus to municipal employees This argument was rejected The demand for bonus as an industrial claim it was 1 81 observed is not dealt with by the Municipal Act it is dealt with by the Therefore it is not a relevant consideration whether there are provisions in the Municipal Act with regard to bonus The provisions of the Municipal Act are relevant only for the purpose of determining the quality or the nature of the municipal property or fund those provisions cannot be stretched beyond their limited purpose for defeating a claim of bonus That is why this Court came to the conclusion that the absence of provisions in the Municipal Acts for payment of bonus to municipal employees was not a consideration which was either determinative or conclusive of the question at issue before it The next question which arises is whether a claim for bonus can be said to be included under paragraph 17 2 b xi This provision includes under expenditure other expenses admissible under the law for the time being in force in the assessment of Indian Income tax and arising from and ancillary or incidental to the business of electricity supply It is admitted that bonus paid by an employer to his employees constitutes expenses admissible under section 102vi of the Income tax Act but it is urged that it is not an expense which can be said to arise from and ancillary or incidental to the business of electricity supply The argument is that cl xi lays down two tests one of which is satisfied viz that it is expense admissible under the lndian Income tax Act but the other is not satisfied and so the clause is inapplicable to the amount paid by way of bonus The appellate tribunal has held that even the other test is satisfied and that the expenditure in question can be said to arise from or to be ancillary or incidental to the business of electricity supply In our opinion it is difficult to accept the appellant s argument that the construction placed by the appellate tribunal on the latter part of this clause is not reasonably possible Besides it may be relevant to point out that by a subsequent amendment made in 1957 cl xiii has been added under paragraph 172b of the Sixth Schedule This clause which is numbered xiii reads thus Bonus paid to the employees it 82 of the undertaking a where any dispute regarding such bonus has been referred to any tribunal or other authority under any law for the time being in force relating to industrial or labour disputes in accordance with the decision of such tribunal or authority b in any other case with the approval of the State Government After the insertion of this clause there can be no doubt that the amount paid by the employer to his employees by way of bonus would definitely be admissible expenditure under paragraph 172b In our opinion the insertion of this clause can be more reasonably explained on the assumption that the Legislature has thereby clarified its original intention Even when cl xi was enacted the intention was to include claims of bonus under expenses covered by the said clause but in order to remove any possible doubt the Legislature thought it better to provide specifically for bonus under a separate category Otherwise it is difficult to appreciate how contributions to Provident Fund were treated as admissible expenditure all the time since they were covered by cl xii and bonus could not have been treated as admissible expenditure under cl That is why we are on the whole prepared to agree with the construction put upon cl xi by the appellate tribunal If that be the true position then bonus has always been an admissible expenditure under the scheme of the Act and as such there is no conflict between the scheme of the Act and the claim made by the respondents in the present case Incidentally we may add that this point appears to have been conceded by the appellant before the appellate tribunal We must accordingly hold that the appellate tribunal was right in coming to the conclusion that the Full Bench formula applied in adjudicating upon the respondents claim for bonus against the appellant in the present proceedings As we have already indicated before the fuller bench reached this decision there was a conflict of opinion in the decisions of the Labour Appellate Tribunals but in view of our conclusion it is unnecessary to refer to the said earlier decisions 83 That takes us to the merits of the award The first point is in regard to the appellant s claim for rehabilitation Before the Labour Appellate Tribunal it was fairly conceded by the respondents that at least income tax at seven annas in a rupee on the gross profits less depreciation and also a contingency reserve of Rs 6047 have to be allowed in arriving at the figure of net available surplus for the purpose of bonus payable to the respondents and that in regard to normal statutory depreciation the correct figure must be taken to be Rs 99038 instead of Rs 90393 as given by the industrial tribunal Then as to the rehabilitation the appellant has led no evidence at all and so the appellate tribunal refused to grant any sum by way of rehabilitation in addition to the total amount of Rs 113950 In our opinion the appellate tribunal was right in holding that the adoption of a factor of 2 7 for all assets purchased before 1945 was not justified and that the adoption of the figures of the estimated life of the assets from the Schedule to the Electric Supply Act without even deducting the respective portions of the life of the assets which had already expired was equally unjustified In that view of the matter we do not see how the appellant can make any grievance against the finding of the appellate tribunal on the question of rehabilitation The appellate tribunal has fairly observed that in future if a dispute arises between the appellant and its employees the appellant may substantiate its claim for rehabilitation by leading proper evidence The claim of the appellant for the triple shift allowance in respect of the mains has been allowed by the appellate tribunal and there is no dispute in respect of it but it is urged that rule 8 of the Incometax Rules justifies the appellant s claim in respect of all its electric plant and machinery under Entry IIIE 1 Rule 8 provides that the allowance under section 10 2 vi of the Act in respect of depreciation of buildings machinery plant or furniture shall be a percentage of the written down value or original cost as the case may be equal to one twelfth the number shown in the corresponding entry in the second column of the following statement There are two 84 provisos to this rule which it is not necessary to set out The appellant makes a claim under IIIE 1 which deals with electric plant machinery and boilers whereas according to the respondents the appellant s case in this behalf falls under IIIC 4 and 5 which respectively deal with underground cables and wires and overhead cables and wires The argument for the respondents is that in respect of these items the appellant s claim is inadmissible In support of this argument the respondents rely upon the remark against item 3 on page 8 of the Rules This remark would show that the benefit claimed by the appellant does not apply to an item of machinery or plant specifically excepted by the letters N E S A being shown against it These letters are the contraction of the expression No Extra Shift Allowance There is no doubt that these letters are to be found against items in IIIC 4 and 5 Therefore the point which arose for decision before the appellate tribunal was whether the appellant s claim falls under IIIE 1 or IIIC 4 and 5 The appellate tribunal has observed that the appellant made no attempt to show that any such claim for shift depreciation in respect of its cables and wires had been put forward by it before the income tax authorities or that it was held to be admissible by them It has also observed that if the appellant s case was true that the cables and wires fell under IIIE 1 it was difficult to understand why separate provision should have been made in respect of depreciation of cables and wires under IIIC 4 and 5 Besides the appellate tribunal was not satisfied that such cables and wires would depreciate in value to a materially greater extent when electrical energy is allowed to pass through them for more than one shift That is why on the materials as they were available on the record the appellate tribunal saw no reason why the appellant should be allowed any extra shift depreciation in respect of underground and overhead cables by way of a prior charge The appellant s claim for the provision of Rs 23516 in that behalf was therefore rejected It would thus be seen that the appellant seeks to claim this amount by way of prior charge 85 and in substance this claim has been rejected by the appellate tribunal on the ground that sufficient material has not been placed before it by the appellant on which the claim could be examined and granted In such a case we do not see how we can interfere in favour of the appellant The present decision will not preclude the appellant from making a similar claim in future and justifying it by leading proper evidence In the result the appeal fails and is dismissed with costs Appeal dismissed

At the trial of a person for murder by alleged poisoning the fact of death by poisoning is provable by circumstantial evidence notwithstanding that the autopsy as well as the chemical analysis fail to disclose any poison though the cause of death may not appear to be established by direct evidence the medical evidence of experts and the circumstances of the case may be sufficient to infer that the death must be the result of the administration to the victim of some unrecognised poison or drug which acts as a poison and a conviction can be rested on circumstantial evidence provided that it is so decisive that the court can unhesitatingly hold that the death was not a natural one Per section K Das and M Hidayatullah jj Where the evidence showed that the appellant who was the medical adviser of the deceased deliberately set about first to ingratiate himself in the good opinions of his patient and becoming her confidant found out all about her affairs and gradually began managing her affairs that all the time he was planning to get at her property and had forged her signature on a dividend warrant and had obtained undated cheque from her and then under the guise of helping her to have a consultation with a specialist in Bombay took her in a train and then brought the patient unconscious to a hospital bereft of all property with which she had started from home and gave a wrong name to cover her identity and wrong history of her ailments that after her death he abandoned the body to be dealt with by the hospital as an unclaimed body spread the story that she was alive and made use of the situation to misappropriate all her properties and that he tried by all means to avoid postmortem examination and when questioned gave false and conflicting statements held that if the deceased died in circumstances which prima facie admit of either disease or homicide by poisoning one must look at the conduct of the appellant both before and after the death of the deceased that the corpus delicti could be held to be proved by a number of facts which render the commission of the crime certain and that the medical evidence in the case and the conduct of the appellant unerringly pointed to the conclusion that the death of the deceased was the result of the administration of some unrecognised poison or drug which would act as a poison and that the appellant was the person who administered it 461 Per Sarkar J If it could be established in this case that the deceased had died an unnatural death the conclusion would be inevitable that unnatural death had been brought about by poison but the circumstances were not such that from them the only reasonable conclusion to be drawn was that the deceased died an unnatural death Held that the prosecution had failed to prove the guilt of the appellant Regina vs Onufrejczyk 1955 1 QB 388 The King vs Horry 1952 NZL 111 Mary Ann Nash s case 1911 6 Cr R 225 and Donnall s case considered and relied on

110 of 1959 Writ Petition under Article 32 of the Constitution of India for enforcement of Fundamental rights BR L Iyengar and Shankar Anand for the petitioners M C Setalvad Attorney General for India B SenR Gopalakrishnan R H Dhebar and T M Sen for the respondents March 7 The Judgment of the Court was delivered by SARKAR J The petitioner is a co operative society duly registered and it carries on the business of plying motor buses as stage carriages on the public highways in the State of Bombay Its case in this petition is that it has been deprived of its right to carry on this business and has also been subjected to discriminatory treatment in the matter of the grant of permits to run its buses It complains of the infringement of its fundamental rights under articles 191g and 14 of the Constitution The questions raised in this matter turn on some of the provisions of the as amended by Act 100 of 1956 These provisions have to be examined before proceeding to discuss the questions that arise We are concerned only with Chapters IV and IVA of the Act Chapter IV comprises sections 42 to 68 and Chapter IVA which was in its entirety introduced by the amending Act consists of sections 68A to 681 Taking Chapter IV first we find that section 421 provides that no owner of a transport vehicle shall use or permit the use of the vehicle in any public place save in accordance with the conditions of a permit granted under the Act A transport vehicle is defined in section 233 as a public service vehicle or a goods vehicle Clause a of sub sec 3 of section 42 as it originally stood 180 provided that sub sec 1 of that section would not apply to any transport vehicle owned by or on behalf of the Central Government or a State Government other than a vehicle used in connection with the business of a railway So under it the Government could ply stage carriages on the public highways without having to obtain permits in respect of them The amending Act of 1956 substituted a new clause a in section 423 for the old clause The new cl a provides that sub sec 1 shall not apply to any transport vehicle owned by the Central Government or a State Government and used for Government purposes unconnected with any commercial enterprise Since the amendment therefore the Government cannot run stage carriages on the public highways without a permit just as a private owner of stage carriages cannot do because such use of the vehicles will not be for a purpose unconnected with a commercial enterprise Section 44 authorises a State Government to constitute a State Transport Authority and Regional Trans port Authorities for different areas in that State to carry out the duties specified Section 45 provides that every application for a permit shall be made to the Regional Transport Authority of the region in which it is proposed to use the vehicle Section 47 specifies the matters to which a Regional Transport Authority shall have regard in considering an application for the grant of a permit We now come to Chapter IVA Section 68Ab defines a State transport undertaking for the purpose of the Chapter to mean an undertaking providing road transport service carried on among others by a State Government Section 68B provides that the provisions of Chapter IVA shall have effect notwithstanding anything to the contrary contained in Chapter IV Section 68C is in these terms 68C Where any State transport undertaking is of opinion that for the purpose of providing an efficient adequate economical and properly coordinated road transport service it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof 181 should be run and operated by the State transport undertaking whether to the exclusion complete or partial of other persons or otherwise the State transport undertaking may prepare a scheme giving particulars of the nature of the services proposed to be rendered the area or route proposed to be covered and such other particulars respecting thereto as may be prescribed and shall cause every such scheme to be published in the Official Gazette and also in such other manner as the State Government May direct Section 68D provides for the preferring of objections to the scheme published under section 68C consideration of such objections and final approval of the scheme by the State Government The terms of section 68F1 are as follows S68F 1 Where in pursuance of an approved scheme any State transport undertaking applies in the manner specified in Chapter IV for a stage carriage permit or a public carrier s permit or a contract carriage permit in respect of a notified area or notified route the Regional Transport Authority shall issue such permit to the State transport under taking notwithstanding anything to the contrary contained in Chapter IV The respondents to this petition are 1 The Regional Transport Authority Aurangabad 2 The State Transport Authority Bombay 3 The Divisional Controller of State Transport Marathwada and 4 The State of Bombay Aurangabad and Maratliwada are both in the State of Bombay The first and second respondents are the authorities set up under section 44 of the Act by the Government of Bombay It is the duty of the first respondent to consider applications for and to grant permits for stage carriages to be plied in Aurangabad region and the second respondent hears appeals from the decisions of the first respondent The third respondent is the head of a department of the Government of the State of Bombay and is in charge of public transport work in Marathwada It appears that the petitioner had permits to run buses on four routes in Aurangabad and that these 182 permits were due to expire on October 1 1958 The third respondent who really represents the Government of the State of Bombay and who may be conveniently referred to as the State of Bombay had permits for two of these routes On May 19 1958 the State of Bombay applied for permits for all these four routes under Chapter IV of the Act On May 27 1958 the petitioner applied for renewal of its existing permits The first respondent rejected the application of the petitioner and granted those of the State of Bombay The petitioner appealed to the second respondent but its appeal was rejected In the meantime on some date which does not appear on the record the petitioner had been granted temporary permits up to December 31 1958 On the expire of its temporary permits on December 31 1958 the petitioner would have been unable to run any of its buses and it therefore moved the High Court at Bombay under article 226 of the Constitution and the High Court quashed the orders of respondents Nos 1 and 2 and directed the applications of the petitioner and the State of Bombay for the permits to be reconsidered With the reasons of this order of the High Court we are not concerned Respondent No 1 however without reconsidering the applications as directed by the High Court granted temporary permits to the State of Bombay The petitioner again moved the High Court which thereupon quashed the order of respondent No 1 granting temporary permits to the State of Bombay Thereafter on March 20 1959 the respondent No 1 granted temporary permits to the petitioner which were later extended to July 20 1959 On June 1 1959 the State of Bombay publish ed a scheme under section 68C in Chapter IVA of the Act Various objections were filed against the scheme and nothing further appears to have been done to make the scheme final On July 18 1959 respondent No 1 purporting to carry out the directions of the High Court reconsidered the petitioner s applications for renewal and the applications of the State of Bombay for permits and rejected the petitioner s applications while allowing those of the State of Bombay On July 20 1959 the petitioner s temporary permits 183 having expired it ceased to operate its buses On August 27 1959 the petitioner filed the present petition in this Court under article 32 of the Constitution for appropriate writs quashing the order of respondent No 1 dated July 18 1959 restraining the State of Bombay from applying for permits save under the provisions of Chapter IVA and respondent No 1 from entertaining any application by the State of Bombay under Chapter IV and directing respondent No 1 to hear the petitioner s applications for permits according to law Various grounds have been advanced in support of the petition and these will now be discussed The petitioner first contends that in view of chapter IV A the State of Bombay bad no right to apply for permits under Chapter IV of the Act as it had done It says that the order of the first respondent granting permits to the State of Bombay Under chapter IV was therefore illegal and affected its fundamental rights under article 191 g The first question then is whether the State of Bombay was entitled to apply for permits under Chapter IV The petitioner says that special provisions having been made in Chapter IVA to enable the Government to run its buses the Government s right to run buses was restricted to those provisions and the Government was not entitled to resort to the other provisions of the Act In support of this con tention reference was made to the case of Nazir Ahmad vs King Emperor1 where it was observed that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all But this principle can apply only where one power is given and has no application where more powers than one are conferred If a statute contains provisions giving more than one power then the rule cannot be applied so as to take away the powers conferred by anyone of these provisions As pointed out in Taylor vs Taylor2 referred to by the judicial Committee in Nazir Ahmad s case 1 When a statutory power is conferred for the first time upon a Court and the mode of exercising it is pointed out it means that no other mode is to be adopted 1 1936 LR 63 IA 372 2 1876 431 184 Now the position here is different The Government has of course the power to do any business it likes and therefore the business of running stage carriages We have earlier drawn attention to the change made in cl a of section 423 by the amendment of 1956 Previously it was not necessary for the Government to obtain permits under section 421 for buses that it intended to run as stage carriages Since the amendment the Government can no longer run transport vehicles for commercial purposes without obtaining permits unders421 Now the plying of buses as stage carriages is a commercial enterprise and for such buses therefore under the sections as they stand the Government would require permits as any one else That being so the sections clearly contemplate that the Government may apply for and obtain permits for its buses run as stage carriages The rule applied in Nazir Ahmad s case 1 does not permit the ordinary meaning of section 42 sub section 1 and sub section 3 cl a to be cut down because of the provisions of Chapter IVA The Act lays down two independent sets of provisions in regard to the running of buses by the Government one under Chapter IV and the other under Chapter IVA Chapter IVA was intended to give the Government a special advantage When the Government chooses to proceed under that chapter it becomes entitled as a matter of right under section 68F 1 to the necessary permits Under Chapter IV the Government does not have any such advantage it has to compete with other applicants to secure permits to be able to run its buses The powers under the two Chapters are therefore difference To such a case the principle of Nazir Ahmad s case 1 cannot be applied The learned counsel for the petitioner also referred to the maxim expression units est exclusio alterius and contended that since the Act by Chapter IVA provided that the Government would be entitled to run buses under a scheme it impliedly prohibited the running of buses by the Government otherwise It does not seem to us that this maxim carries the matter further It is a maxim for ascertaining the 1 1936 LR 63 IA 372 381 185 intention of the legislature Where the statutory language is plain and the meaning clear there is no scope for applying the rule Section 423 a appears to us to be perfectly plain in its terms It contemplates that the Government has to apply for permits under section 421 to run buses as a commercial enterprise That being so the maxim cannot be resorted to for ascertaining the intention of the legislature and implying a prohibition against the Government applying for permits under Chapter IV The learned counsel then referred to the case of Viscounts Rhondda s claim 1 where it was observed at p 365 that The words of the statute are to be construed so as to ascertain the mind of the Legislature from the natural and grammatical meaning of the words which it has used and in so construing them the existing state of the law the mischiefs to be remedied and the defects to be amended may legitimately be looked at together with the general scheme of the Act His point is that Chapter IVA was introduced by the amendment of 1956 to meet the observations made in Moti Lal vs Government of Uttar Pradesh 2 and some other cases that section 423a was discriminatory in that it exempted the Government from the requirement of a permit and was hence void as offending article 14 of the Constitution It is said that Chapter IVA must therefore be construed as containing the only provisions enabling the Government to run a stage carriage It is difficult to appreciate this contention The observations in the cases referred to had been made in regard to cl a of section 423 as it stood before its amendment in 1956 That section has been amended and as it now stands it is not discriminatory The evil pointed out no more exists and no question of reading the Act keeping in view that evil of discrimination arises We find nothing in Moti Lal s case 2 or any other case which points to an evil nor has the learned counsel drawn our attention to any which the Act can be said to have intended to remedy We therefore find no justification for reading Chapter IVA as containing 1 2 1951 1 ILR AU 24 186 the only provisions under which the Government can ply stage carriages It is next said section 42 contemplates the owner of a transport vehicle obtaining a permit and a State transport undertaking cannot apply for a permit under Chapter IV as it cannot be suchowner But here we are not concerned with a State transport undertaking for that comes into existence for the purposes of Chapter IVA and that Chapter has not been resorted to by the Government yet Here the Government applied for the permits under Chapter IV The Government can of course be the owner of transport vehicles We have earlier said that in view of cl a of section 423 the Government has to apply for permits under section 421 as any other owner Therefore the Act contemplates the Government as owner of transport vehicles Further under section 68A a State transport undertaking has been defined as an under taking providing road transport service carried on by a state Government Such an undertaking is really a department of a Government and in order to be able to provide transport service it must be able to own transport vehicles In fact section 68F1 requires the State transport undertaking to apply for permits under Chapter IV and therefore contemplates it as an owner of a transport vehicle for the purposes of section 42 which is contained in that Chapter The learned counsel then referred to the concluding portion of section 471 which makes it incumbent on the authority considering applications for permits to take into consideration the representations made by the persons therein mentioned He said that the persons there mentioned did not include the Government and therefore the intention is clear that applications for permits by the Government were not intended to be considered under section 47 and if Government could not come under s 47 it could not come under Chapter IV at all But assume that representations by the Government are not contemplated by section 47 That does not show that applications for permits by the Government are also not contemplated by that section It is also said that the matters to which the authority granting the permits is required to have regard in 187 considering applications for permits under section 47 are such that if the State enters into competition with citizens for the grant of permits the State must necessarily get them Therefore it is said that it could not have been intended that the State would compete with the citizens in the matter of obtaining permits under Chapter IV We are unable to assent to this contention There is nothing in section 47 which leads to the conclusion that whenever the Government applies along with private citizens for permits the Government must get them Indeed if that were so then it would not have been necessary to provide by section 68F 1 that when the Government that is its State transport undertaking applied in pursuance of an approved scheme for a permit the authority concerned would be bound to grant such permit Section 68F 1 clearly contemplates that without the provision made therein it may so happen that the authority acting under section 47 may think it fit to grant the permit to a private operator in preference to the Government It also seems to us that there is nothing in our law to prevent the Government from entering a business in competition with private citizens Indeed article 196 by providing that nothing in article 191g shall affect the application of any existing law in so far as it relates to or prevent the State from making any law relating to the carrying on by the State of any trade business industry or service whether to the exclusion complete or partial of citizens or otherwise would seem to indicate that the State may carry on any business either as a monopoly complete or partial or in competition with any citizen and that would not have the effect of infringing any fundamental rights of such citizen Our attention was then drawn to the proviso to section 471 under which other thing being equal a cooperative society is entitled to preference over individual owners in the matter of grants of permits It is said that the Government is not an individual owner and therefore it is not contemplated as an applicant for a permit under section 47 It seems to us that if the Government is not an individual owner as to which we are not called upon to say anything it does not 188 follow that section does not contemplate the Government as an applicant for permit If Government is not an individual owner then all that will happen in view of the proviso to section 471 will be that a co operative society will not be able to claim any preference over the Government All that the proviso does is to give a co operative society a preference over individual owners It is not concerned with stating who can apply for permits It seems to us therefore that the petitioner s contention that the Government cannot apply for a permit under Chapter IV of the Act is unsustainable The petitioner cannot complain of the Government having applied under that Chapter We are not called upon therefore to discuss the further question whether any fundamental right of the petitioner under article 191g would have been affected by the Government having applied for and obtained permits under Chapter IV without having the right to do so This disposes of the contentions concerning the infringement of the peti tioner s fundamental rights under article 191g of the Constitution We will now consider the question of the violation of article 14 of the Constitution The first contention in this regard was based on the proviso to section 471 It is said that in the circumstances of this case as a cooperative society the petitioner was entitled to preference over the Government considered as an individual owner and had not been given that preference It is contended that respondent No 1 relying on various promises made by the State of Bombay to repair roads and to give other facilities to the traveling public had held that the other conditions were not equal while under the proviso it was entitled to rely only on the existing conditions It is contended that thereby the provisions of article 14 had been infringed This contention is in our view clearly untenable The decision of respondent No 1 may have been right or wrong and as to that we say nothing but we are unable to see that decision offends article 14 or any other fundamental right of the petitioner The respondent No 1 was acting as a quasi judicial body and if it has made any mistake in its decision there are appropriate 189 remedies available to the petitioner for obtaining relief It cannot complain of a breach of Art 14 The other contention of the petitioner is that if Chapter IV permits the State to compete with a private citizen it offends article 14 because in view of the vast resources of the State a private citizen is bound to lose in such competition This point is clearly unfounded Article 196 as it now stands contemplates such a competition as we have earlier pointed out The petitioner can base no grievance on such competition For these reasons we think that this petition must fail and hence it is dismissed with costs Petition dismissed

These appeals raised the question of constitutional validity of the Vindhya Pradesh Abolition of jagirs and Land Reforms Act I952 XI Of 1952 Applications were made before the judicial Commissioner under article 226 of the Constitution on the ground that various provisions of the Act placed unreasonable restrictions on the exercise of the fundamental rights guaranteed by the Constitution The judicial Commissioner held that the Act excepting section 221 section 37 and cl 4e of the Schedule to the Act was constitutionally valid The State appealed against that part of the order which declared the three provisions unconstitutional and one of the petitioners appealed against the order declaring the rest of the Act constitutional Held that the appeal of the State must be allowed and that of the petitioner dismissed It was not correct to say that section 22 of the Act which lays down the scheme for giving effect to section 7a of the Act which permits the jagirdars to remain in possession of certain lands even after the abolition of their jagirs is a piece of colourable legislation and therefore ultra vires the Legislature That section cannot be said to discriminate as between jagirdars on the one hand and other occupants of land to whom section 281 applies on the other since they belong to distinct and different classes 107 Even assuming that they belong to the same class and section 22 is discriminatory that section is protected by article 31A of the Constitution The question as to colourable legislation is really one relating to legislative competency and there can be no doubt that the Vindhya Pradesh Legislature was perfectly competent to enact the impugned provisions under Entry 18 List II of the Seventh Schedule to the Constitution K C Gajapati Narayan Deo vs The State of Orissa 1954 SCR i and Raghubir Singh vs The State of Ajmer Now Rajasthan 1959 SuPP1 1 SCR 478 relied on There was no substance in the contention that section 37 of the Act is repugnant to section 9 of the Code of Civil Procedure and consequently ultra vires the State Legislature The Vindaya Pradesh Legislature had undoubtedly the power under Entry 3 List II of the Seventh Schedule to make a provision like section 37 Of the Act and once it did so the last part of section 9 of the Code would apply and the jurisdiction of the Civil Courts would be barred by section 9 of the Code read with section 37 of the Act Nor was it correct to say that cl 4e of the Schedule deprives the jagirdar of his proprietory interest without compensation Although he may have to pay rent for the land remaining with him no revenue for such land was any longer payable by him and the revenue is taken into account in assessing compensation The entire Act therefore falls within the protection of article 31A of the Constitution and in view of the decisions of this Court its constitutional validity is beyond question Case law referred to

Appeal No 402 of 1958 Appeal by special leave from the Award dated January 29 1957 of the Industrial Tribunal Bihar at Patna in Reference No 7 of 1956 Sukumar Ghose for the appellant M K Ramamurthi R K Garg A N Nag and Suresh Aggarwal for the respondents section P Varma for the intervener State of Bihar March 9 The Judgment of the Court was delivered by WANCHOO J This is an appeal by special leave against the award of the Industrial Tribunal Patna The appellant is a Sugar Mill in District Saran in the State of Bihar One Ramkrishna Prasad was appointed as clerk in this mill in 1933 Gradually he worked his way up and was drawing Rs 140 per month in October 1952 The mill created a new post of store in charge about that time as the work in the Stores Department of the Mill had increased On October 4 1952 Babulal Parekh was appointed to this new post on a consolidated salary of Rs 180 per menses A letter of appointment was issued to him on that date and he was told that he would be on probation for one year He was also asked by another letter to take charge immediately He took charge on October 7 1952 On November 28 1952 an order was passed by the mill distributing the duties between the various clerks employed in the Stores Department and it was stated therein that all the staff of the Stores Department would work as subordinate to Babulal Parekh On December 2 1952 another order was passed by which Ramkrishna Prasad was ordered to hand over the keys of the stores to Babulal Parekh Thereafter Ramkrishna Prasad made a representation against his being made subordinate to the stores in charge This representation was rejected A dispute was then raised by the union and a reference was made by the Government of Bihar on May 9 1956 in which the 216 following three matters were referred to the tribunal 1Whether the status of workman Sri Ramkrishna Prasad Store keeper and the nature of the job performed by him has been changed to his prejudice with the appointment of a separate store in charge 2Whether in view of the satisfactory performance of duties of store keeper for the last 20 years by the above named workman it was at all necessary to appoint a separate store in charge over him with higher emoluments and whether Shri Ramkrishna Prasad is entitled to be appointed to the post of store in charge and 3Whether the claim of the above named workman for promotion to higher grades has been overlooked by the management and if so what relief the workman is entitled to When the matter came up before the tribunal the main contention on behalf of the mill was that it was exclusively the management function to decide its labour strength both qualitatively and quantitatively and that so far as Ramkrishna Prasad was concerned his position had not been prejudicially affected by the creation of the new post of a store in charge The workmen on the other hand contended that Babulal Parekh was first appointed as a mere clerk under Ramkrishna Prasad to begin with and it was only on November 28 1952 that he was promoted over the head of Ramkrishna Prasad as a store in charge thus superseding Ramkrishna Prasad This stand of the workmen was controverted by the mill and its case was that Babulal Parekh was from the very beginning appointed as store in charge The tribunal came to the conclusion after a consideration of the evidence produced that Babulal was first appointed as an ordinary clerk in the Stores Department and was subsequently made a store incharge It held that this caused reasonable heart burning to Ramkrishna Prasad The tribunal was conscious of the principle that promotion to a higher post was the exclusive function of the management and should not ordinarily be interfered with But 217 in spite of that it was of the view that this was a fit case for interference but on other considerations which were not specified in the order by the tribunal it held that it would not interfere with the arrangement made by the mill it instead granted an increment of Rs 30 per month from the date of its order to Ramkrishna Prasad to meet the ends of justice It is this order which is being challenged before us Two points have been urged before us on behalf of the appellant In the first place it is urged that the reference was incompetent as sugar was a controlled industry and only the Central Government could have made the reference and not the State Government Secondly it is urged that the order of the tribunal granting an increment of Rs 30 per month to Ramkrishna Prasad was patently perverse and that there was no change in the status or emoluments of Ramkrishna Prasad by the creation of the new post and the employment of Babulal Parekh on it So far as the question of the competence of the reference is concerned we are of opinion that there is no force in it A similar question was raised before this Court in The Bijoy Cotton Mills Ltd vs Their Workmen and Another 1 and it was held there on the language of section 2a1 of the that before that provision could apply to a controlled industry there must be a notification by the Central Government for the purposes of section 2a1 of the Section 2a1 is in these terms I Appropriate Government means in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government or by a railway company or concerning any such controlled industry as maybe specified in this behalf by the Central Government or in relation to an industrial dispute concerning a banking or an insurance company a mine an oil field or a major port the Central Government The argument is that as sugar is a controlled industry under the Schedule to the Industries Development and Regulation Act No 65 of 1951 the appropriate 1 1960 2 SCR 982 28 218 Government for the purposes of section 2a1 with reference to the sugar Industry is the Central Government Reliance is placed on the words concerning any such controlled industry as may be specified in this behalf by the Central Government appearing in section 2 a1 It is true that sugar is a controlled industry under the Industries Development and Regulation Act 1951 but that in our opinion does not conclude the matter In order that the appropriate government under section 2a1 may be the Central Government for a controlled industry it is necessary that such controlled industry should be specified by the Central Government for the purposes of section 2a1 This in our opinion is obvious from the words controlled industry as may be specified in this behalf by the Central Government appearing in section 2a1 It is not enough that an industry should be a controlled industry to attract this provision of section 2a1 it is further necessary that it should be specified in this behalf namely for the purposes of section 2a1 as a controlled industry by the Central Government before the Central Government can become the appropriate government within the meaning of section 2a1 We may in this connection refer to Firebricks and Potteries Ltd etc vs Firebricks and Potteries Ltd Workers Union Ltd 1 where the same view has been taken We are of opinion that is the correct meaning of these words appearing in section 2a1 as already held in The Bijoy Cotton Mills Ltd 2 The objection that the reference was not competent therefore fails We next come to the contention raised on behalf of the mill that there was in fact no prejudice whatsoever so far as the status and emoluments of Ramkrishna Prasad were concerned by the creation of the new post and the appointment of Babulal Parekh on it and that the tribunal was not justified in any case in granting an increment of Rs 30 per menses to Ramkrishna Prasad The main consideration which influenced the tribunal in passing the order which it did was that in the view of the tribunal Ramkrishna Prasad was superseded by Babulal Parekh who was first appointed as a clerk under him This view of 1 ILR 1955 MYS 2 219 the tribunal in our opinion is patently erroneous The appointment order dated October 4 1952 clearly shows that Babulal Parekh was appointed as store inches from the very beginning at Rs 180 per month The tribunal referred to certain entries in the attendance register to hold that Babulal Parekh worked as clerk to begin with It appears from the attendance register for the months of October November and December that Babulal Parekh was marked present from October 7 to November 9 Thereafter from November 11 to the end of December he signed the attendance register The statement of Cbaudhari Labour Welfare Officer of the mill was that the practice in the mill was that officers used to be marked present in the attendance register while clerks used to sign it themselves The tribunal has concluded from the fact that Babulal Parekh signed the register in November that he must have been a clerk to begin with The tribunal however completely overlooked that from October 7 to November 9 Babulal Parekh was marked present which would show that he was not a clerk The tribunal also overlooked that even from November 28 to the end of December when Babulal Parekh admittedly was not a clerk but store in charge he still signed the register though he should have been marked present Chaudhari was unable to explain how this happened but he was hardly the person to explain this It is however clear from this confusion that no importance can be attached to whether Babulal Parekh was marked present in the register or signed it The real thing which determined the status of Babulal Parekh was the appointment order dated October 4 1952 which the tribunal has accepted as correct A question was certainly put to Chaudhari at the end of his cross examination that he had manufactured the statements put in by him only the night before but he denied it We cannot accept the suggestion on behalf of the respondents that the appointment order was ante dated for no such suggestion was made to Chaudhari and the tribunal itself does not find so It is clear therefore that the finding of the tribunal that Babulal Parekh was appointed as 220 clerk under Ramkrishna Prasad to begin with is patently perverse and it must be held that Babulal Parekh was from the very beginning working as store in charge Now in so far as Ramkrishna Prasad was concerned his work and emoluments remained the same after the appointment of Babulal Parekh If a higher post was created in the Stores Department because of the increase in work Ramkrishna Prasad could not claim promotion to it merely because he was working as a store keeper before There is of course no question of supersession in this case and therefore there is no reasonable cause for any heart burning As the learned tribunal itself points out promotion to higher post was the exclusive function of the management and if a new post is created and a new man appointed as in this case it cannot be said that Ramkrishna Prasad s status was in any way prejudicially affected It is also remarkable that after saying all that it could in favour of Ramkrishna Prasad the tribunal did not interfere with the arrangement made by the mill for reasons which were not specified by it in the order As such there was no reason for granting an increment of Rs 30 per mensem to Ramkrishna Prasad for even the workmen did not claim that he was entitled to any compensation in the shape of an increment in his pay because of the appointment of Babulal Parekh The order of the tribunal therefore is patently unsupportable and must be set aside We therefore allow the appeal and set aside the order of the tribunal and hold that no relief is due to Ramkrishna Prasad In the circumstances we pass no order as to costs Appeal allowed

Can the Full Bench formula for calculation of bonus apply to a claim of bonus made by workmen engaged in electricity con cerns and undertakings That was the question raised for decision in this appeal A Special Bench of the Labour Appellate Tribunal held in the affirmative and the correctness of its decision was challenged in this appeal It was contended on behalf of the appellant company that the Electricity Supply Act 1948 54 Of 1948 was a self contained code intended to regulate the business and affairs of electricity concerns and that Act and not the formula applied to a claim of bonus by the workmen in an electricity concern 1 1933 201 69 Held that the Special Bench had taken a correct view of the matter and its decision must be upheld It is evident from the provisions of the Electricity Supply Act 1948 and its schedules that the respective fields of operation of the Act and of the principles of industrial adjudication are wholly different and so there can be no conflict between them and their relevance and validity in their own spheres are beyond question While the Full Bench formula seeks to ensure social justice to workmen by apportioning a share of the profits to them and thus minimise the gap between the actual and the living wages the Act does not provide for wages at all But it is improper to suggest on that basis that the workmen in electricty undertakings can be denied social justice just as the relevant industrial principles have to be applied for framing a wage structure for such workmen so also must the problem of bonus be solved in a like manner The working sheet prepared under the method of accounting required by the Act can be no basis for calculation of the amount of bonus since it is not possible to ascertain the gross profit therefrom and the Full Bench Formula has to be applied on the basis of the profit and loss account which a company has to keep under the Companies Act Bayoda Boyough Municipality vs Its Workmen 1957 SCR 33 referred to Moreover the intention of the Legislature in enacting cl vi of paragraph 172b of Sixth Schedule to the Act clearly was to include a claim of bonus is within the expenses covered by it and it was to set at rest any possible doubt on that score that cl xiii was added by a subsequent amendment

Criminal Appeal No 12 of 1952 Appeal by special leave from the judgment and order dated 4th June 1951 of the High Court of Judicature of Punjab at Simla Bhandari and Soni JJ in Criminal Appeal No 109 of 1951 arising out of Judgment and order dated 19th March 1951 of the Court of the Additional Sessions Judge Ferozepore in Sessions Trial No 18 of 1951 TR Bhasin for the appellant Gopal Singh for the respondent April 30 The Judgment of the Court was delivered by BOSE J This is a simple case though it was argued at great length on behalf of the appellant and a number of technical objections to the validity of the trial taken The appellant Bhagwan Singh has been convicted of the murder of one Buggar Singh and sentenced to death He has also been convicted under section 19f of the Indian Arms Act but we are not concerned with that here The prosecution story is that the appellant bore a grudge against the deceased because the deceased had fired at the appellant s brother some six or seven years before the present occurrence and was sent to jail for 814 it When he came out of jail the police thought it prudent to take proceedings against both sides under section 107 of the Code of Criminal Procedure This resulted in the appel lant s two brothers and his cousins being bound down as also the deceased This it is said constituted the motive for the present crime On the date of the occurrence the 7th of September 1950 the prosecution state that the appellant was sitting at the shop of Jit Singh PW 2 when the deceased came there about 12 15 pm and borrowed Rs 5 from Jit Singh who lent him the money and entered the transaction in his ac count book When the deceased left the shop he was followed by the appellant who shot him at point blank range with a pistol only 4 or 5 karams from the shop This attracted the attention of a number of bystanders who immediately chased the appellant and apprehended him after a short run of about 30 karams He was still carrying the pistol It was taken away from him by Jagir Singh Patwari PW 4 The appellant was immediately taken to the local police post about 100 karams distant and the shopkeeper Jit Singh PW 2 made the first information report at 12 a7 pm within 15 minutes of the occurrence The motive is proved by Bhag Singh PW 7 who has been believed and that part of the case was not challenged before us The occurrence was witnessed by a large number of persons of whom the prosecution examined only five Two of them turned hostile in the Sessions Court and one gave evidence which has been regarded by the High Court as neu tral The remaining two Balbir Singh PW 5 and Jaswant Singh PW 6 have been believed The only questions are 1 whether the conviction can be rested on their testimony and2 whether certain irregularities in the trial vitiate it No attack was made on the testimony of Balbir Singh PW 5 except that the two eye witnesses who 815 resiled in the Sessions Court contradict him But it was argued that the evidence of Jaswant Singh PW 6 is viti ated because he was not examined by the Committing Magis trate It was said that makes his evidence in the Sessions Court inadmissible This raises a question which is largely academic in this case because the reason Jaswant Singh PW 6 was not examined by the Committing Magistrate is that the witness had gone away and was not available and it would have been a needless and indeed unjustifiable holding up of the pro ceedings to wait till he could be found and summoned It is evident that the Sessions Court has power to examine wit nesses who were not examined before the Committing Magis trate because of section 540 of the Criminal Procedure Code and if the witness is treated as a prosecution witness and examined by the prosecuting counsel instead of by the Court itself that at best would be an irregularity curable by section 537 The proper time to object to such a procedure would be at the trial itself and as the appellant was represented in the Sessions Court by two counsel it is too late to object to such a venial irregularity in this Court The learned counsel for the appellant took us elaborate ly through the provisions of Chapter XVIII of the Criminal Procedure Code and stressed in particular section 208 1 but we need not enter into this because section 540 is a complete answer in this particular case None of the cases cited goes so far as to say that no witness who was not produced in the committal proceedings can be examined at the trial and we would be unable to agree if they did The decision most in favour of the appellant s contention is Sher Bahadur vs The Crown 1but that does no more than consider such an omission as a curable defect Abdul Qadir J said at pages 338 and 342 that it was conceded before them that section 540 could be called in aid in such a case and at page 339 the learned Judge dealt with the question of prejudice 11934ILR 15 lah331 106 816 and concluded at page 344 with the remark that the question is one of fact in each case and that in his opinion there was prejudice in that particular case The other learned Judge took the same view at pages 3J7 and 348 and said The Court can of course always use its discretion and allow the production of further evidence It is to be observed that the objection in that case was raised at a very early stage and before the sessions trial had commenced also that the prosecution wished to examine no less than eight material witnesses out of a total of sixteen which they had deliberately withheld in the commit tal proceedings We make no remarks about the correctness of the observations which travel beyond the question of prejudice because that is unnecessary here It is sufficient to say that the learned Judges conceded the power under section 510 and decided the case on the question of preju dice The question raised in Queen Empress vs GW Hayfield1 does not arise here because the Sessions Court did not refuse to examine Jaswant Singh PW 6 and so the question whether the prosecution could demand his examina tion as a matter of right never arose The fact remains that they were permitted to do so and the defence raised no objection The decision of the Allahabad High Court in SH Jhabwa la vs Emperor 2and the Full Bench of the Lahore High Court in Mussammat Niamat vs The Crown3 are against the learned counsel s contention The decision of the Full Bench of the Lower Burma Chief Court in Emperor vs Channing Arnold 4 is not in point because the Committing Magistrate there refused to examine witnesses which the prosecution wanted and indeed insisted that he should examine and what was worse he prevented the accused from completing the cross examination of the only prosecution witness which the Committing Magistrate thought fit to examine Whatever else may be thought of 1 All 212 3 Z936 ILR 17 Lah 2 AIR 1933 All 690 4 1912 13 Cr L J 877 817 section 208 it is evident that the accused has the right to cross examine at any rate those of the witnesses who areexamined by the Committing Magistrate on behalf of the prosecution and section 547 cannot be used as a cloak for a hasty committal before such cross examination is complete In our opinion the cases cited do not justify the extreme position taken up by the learned counsel for the appellant and as section 540 is a complete answer in this case all we need consider is the question of prejudice We do not hold that the Court is bound to examine a witness called under section 540 itself as a court witness and that it can never entrust the examination to the prosecuting counsel because even if that be the proper procedure no prejudice has been occasioned in this particular case The irregularity here on this score if indeed it is one is so trivial as to be innocuous A more important question is was the appellant taken by surprise and was prejudice occasioned because of that We do not think so because Jaswant Singh was mentioned in the first information report recorded within 15 minutes of the occurrence as one of the eye witnesses and he was again mentioned as an eye witness in the calendar of the committal proceedings The appellant was presumably supplied with the witnesses statement to the police or at any rate he had the right to demand a copy under section 162 and if he did not do so It was presumably because neither he nor his two learned counsel wanted it The first information report is a full one and sets out all the essentials of the prosecution case therefore with all that information in the possession of the appellant and his counsel it could be impossible for him to contend that he did not know what this witness was to prove Had the witness travelled beyond the statements embodied in the first information report objection to the use of any thing not contained in it would have been understandable though to be effective such 818 objection would ordinarily have to be raised at the trial but as the witness does not do that there can be no objec tion on the score of prejudice It is to be observed that the Explanation to section 537 requires a Court to take into consideration the fact whether any objection on the score of irregularity could have been raised at an earlier stage Now the High Court bases its decision on the evidence of these eye witnesses and on the fact that the appellant was apprehended on the spot within a minute or two of the murder with the pistol still in his possession and had the learned Judges stopped there there would have been no foundation for the very elaborate network of technicalities upon which the learned counsel for the appellant embarked But Bhand ari J Soni J concurring after saying that After a careful consideration of all the facts and circumstances of the case I entertain no doubt in my mind that Balbir Singh and Jaswant Singh P Ws have told nothing but the truth went on to sayand that Jit Singh and Jagir Singh who made correct statements before the police and before the Committing Magistrate have given false evidence in the trial Court with the object of saving the appellant from the gallows It was argued that the learned Judges have here used the evidence of these witnesses before the Committing Magis trate as substantive evidence despite the fact that it was legally inadmissible for that purpose because the formali ties prescribed by section 288 were not observed Reliance was placed upon Tara Singh vs The State1 Even if that be so it would make no difference because the evidence of Balbir Singh and Jaswant Singh whom the learned Judges primarily believe is sufficient to afford a basis for the conviction and the mere fact that extraneous matter not necessary for the conviction was also called in aid would not affect 1 819 the result But as a matter of fact the foundation for this attack is based upon incorrect assumptions We will deal with Jit Singh PW 2 first He supported the prosecution case in his examination inchief but resiled when cross examined He was therefore treated as hostile and the learned Public Prosecutor was permitted to cross examine him In cross examination the witness s statement in the Committal Court was read out to him and he was asked whether he had made such a statement and he said Yes When that statement is read it is found to tally with his evidence in chief and with the depositions of Balbir Singh and Jaswant Singh and with the first information report Now it was not necessary to use the former statement as substantive evi dence at all and the fact that the learned High Court Judges placed this on a par with the statements to the police including of course the first information report indicates that they were not using the former statements as substan tive evidence but merely as corroboration of what was said in chief The distinction is a subtle one and can perhaps be best explained in the following way A witness is called and he says in chief I saw the accused shoot X In cross examination he resiles and says I did not see it at all He is then asked but didn t you tell A B C on the spot that you had seen it He replies yes I did We have of set purpose chosen as an illus tration a statement which was not reduced to writing and which was not made either to the police or to a magistrate Now the former statement could not be used as substantive evidence It would only be used as corroboration of the evidence in chief under section 157 of the Evidence Act or to shake the witness s credit or test his veracity under section 146 Section 145 is not called into play at all in such a case Resort to section 145 would only be necessary if the witness denies that he made the former statement In that event it would be necessary to prove that he did and if the 820 former statement was reduced to writing then section 145 requires that his attention must be drawn to those parts which are to be used for contradiction But that position does not arise when the witness admits the former statement In such a case all that is necessary is to look to the former statement of which no further proof is necessary because of the admission that it was made Of course that statement cannot be used as substantive evidence unless section 988 of the Criminal Procedure Code is called in aid But even without section 288 a Court would be entitled to say in such a case basing on the evidence in chief which is substantive evidence that what the witness said to the police or to the Committing Magistrate is the true version not because those statements form substantive evidence but because they tally with the evidence in chief which is substantive This is only one of the many ways in which a witness s testimony can be sifted and examined Corroboration is as useful to test the truth of a story as any other method In such a case what the Court really does though it may happen to put the matter the other way round is to say that in its opinion the substantive evi dence given in chief is true because it is corroborated by an earlier statement and for that reason namely because the version in chief is the true one the contradictory version given in cross examination is wrong not because of the contradiction embodied in the former statement but because of what was said in chief a version which it is now safe to believe on account of the corroboration afforded by the earlier statement It is true the earlier statement could also have been used for contradicting the version given in crossexamination and in that event if it is in writing the limitations imposed by section 145 of the Evidence Act would have to be observed but the prosecution is not bound to do that It has a choice It can if it so chooses build up the version given in chief in any way it pleases and having done that use the version in chief to destroy the version in cross examination 821 But in the case before us there is no need to resort to these subtleties because here the depositions were brought on record and could be used as substantive evidence even if the formalities prescribed by section 145 of the Evidence Act were not observed for the very simple reason that there was no need in this cause to resort to section 145 As we have said the prosecution had a choice here because of the two conflicting versions given in chief and in crossexami nation It was entitled to use the former statement either to contradict what was said in crossexamination or to corroborate what was said in chief In either event sec tion 288 of the Criminal Procedure Code could be used to make the former statement substantive evidence because what the section says is subject to the provisions of the Indian Evidence Act and not subject to any particular section in it Section 157 is as much a provision of the Indian Evi dence Act as section 145 and if the former statement can be brought in under section 157 it can be transmuted into substantive evidence by the application of section 288 Tara Singh vs The State1 is to be distinguished because there there were no two versions in the course of the same testimony The witness in question was hostile from the start in the Sessions Court and the whole purpose of resort ing to section 288 was to contradict what he said there and no question of corroboration arose The prosecution had no choice there as it was here of using the former statement either to contradict or to corroborate We turn next to Jagir Singh PW 4 In his case there was no choice He was hostile from the start and in his ease our observations in the ruling just referred to apply in full But on an examination of his evidence we find that the formalities prescribed by section 145 were complied with His cross examination in contrast to Jit Singh s where such a procedure was not necessary shows that every circumstance intended to be used as contradiction was put to him point by point and passage by passage That was 1 at 743 822 conceded but it was argued that this was done without drawing the witness s attention to the parts of the writing which were to be used for the purposes of contradiction We are by no means satisfied that is the ease because at least one of the passages is reproduced in inverted commas and so must have been read out from the statement But that apart Immediately after the witness had been questioned about each separate fact point by point the whole statement was read out to him and he admitted that he had made it in the Committing Court Now this procedure may be open to objection when the previous statement is a long one and only one or two small passages in it are used for contradiction that may in a given case confuse a witness and not be a fair method of affording him an opportunity to explain but in the present case the previous statement is a short one and the witness was questioned about every materi al passage in it point by point Accordingly the procedure adopted here was in substantial compliance with what sec tion 145 requires There can be no hard and fast rule All that is required is that the witness must be treated fairly and be afforded a reasonable opportunity of explaining the contradictions after his attention has been drawn to them in a fair and reasonable manner We are satisfied that was done here The matter is one of substance and not of mere form Jit Singh PW 2 said that the statement made by him in the committal proceedings was not read over to him and so did Jagir Singh PW 4 It was argued that in the absence of an enquiry that must be accepted as true and if true the evidence becomes inadmissible Now the certificate of the Committing Magistrate en dorsed on the deposition sheet states that the deposition was read out to the witness and that the witness admitted it to be correct The Court is bound to accept this as correct under section 80 of the Indian Evidence Act until it is proved to be untrue The burden is on 823 the person seeking to displace the statutory presumption and if he chooses to rely on the testimony of a witness which the Court is not prepared to believe the matter ends there The duty of displacing the presumption lies on the person who questions it The Court is of course bound to consider such evidence as is adduced but it is not bound to believe such evidence nor is there any duty whatever on the Court to conduct an enquiry on its own There is nothing in this point But we again wish to discountenance the suggestion that the Committing Magistrate should have been examined to prove the truth of his certificate and we endorse the re marks we made in Kashmera Singh vs The State of Madhya Pradesh 1 based on the decision of the Privy Council in Nazir Ahmad vs King Emperor2 regarding the undesirability of any such practice But even if the fact be true that the deposition was not read over that would only amount to a curable irregularity and as the Privy Council observed in Abdul Rahman vs King Emperor 3 in the absence of prejudice which must be disclosed in an affidavit which shows exactly where the record departs from what the witness actually said there is no point in the objection The object of the reading over prescribed by section 360 of the Code of Criminal Procedure is not to enable the witness to change his story but to ensure that the record faithfully and accurately embodies the gist of what the witness actually said Therefore before prejudice can be substantiated on this score it must be disclosed by affidavit exactly where the inaccuracy lies The next and last objection is on similar lines Jit Singh PW 2 and Jagir Singh PW 4 said that their statements before the Committing Magistrate were made under the threats and duress of the police It was argued that that should not have been rejected without further enquiry and a ruling in which a further enquiry was considered necessary was cited Here 1 2 AIR 1936 PC 253 at 258 3 AIR 1927 PC 44 at 45 47 107 824 again it is no part of a Court s duty to enter upon a roving enquiry in the middle of a trial on matters which are collateral to the main issue The burden is on the person making these allegations to substantiate them and if he chooses to rely on evidencewhich does not satisfy the Court he must suffer the same fate as every other person who is unable to discharge an onus which the law places upon him It was also argued that there was no proper compliance with the provisions of section 342 of the Criminal Proce dure Code We are satisfied that there was substantial compliance in this case The facts were simple and few and the crucial matters were brought to the attention of the appellant In any event the learned counsel was unable to tell us even at the argument stage exactly how his client was prejudiced and tell us what answers his client would have given to the questions which according to counsel ought to have been put to the appellant We pressed him several times to disclose that but he was unable to do so As we said at the outset the case is a very simple one in which a man was caught red handed with a pistol still in his hand and in which the first information report was recorded practically on the spot within 15 minutes of the occurrence The murder was committed in day light and there was no dearth of eye witnesses Two have been believed and in the case of the other two certain statements made by them in the Sessions Court resiling from statements previ ously recorded in the committal proceedings have been disbe lieved The appeal fails and is dismissed We see no reason to interfere with the sentence of death Appeal dismissed Mehta

The petitioner a registered co operative society carrying on the business of plying motor buses as stage carriages had permits for four routes which were due to expire The State applied for permits for all these routes under Ch IV of the as amended by Act 100 of 956 and the petitioner applied for renewal of its own permits The Regional Transport Authority rejected the petitioner s applications and granted those of the State The petitioner s appeal to the State Transport Authority was rejected But the High Court quashed the said orders under article 226 and directed a 1 2 3 1957 31 ITR250 23 178 reconsideration of the matter The State published a scheme under section 68C Ch IVA of the Act The scheme was not however finalised Thereafter the Regional Transport Authority purporting to reconsider the matter as directed by the High Court rejected the petitioner s applications for renewal and granted those of the State for permits It was contended on behalf of the petitioner that in view of Ch IVA of the Act the State had no right to apply for permits except thereunder and the grant of permits on applications made under Ch IV was therefore illegal and infringed the petitioner s fundamental rights under articles 191g of the Constitution It was further contended that the order violated article 14 as well Held that both the contentions were without substance and must fail The as amended by Act 100 of 1956 lays down two independent sets of provisions relating to running of buses by the Government one tinder Ch IV and the other Ch IVA of the Act The latter chapter by section 68F1 confers a special advantage on the Government when it proceeds under that chapter and entitles it to the necessary permits as a matter of right Under Ch IV of the Act however the Government cannot claim any such advantage It has to compete with other applicants The powers conferred by the two chapters being thus not one but two different powers the principle enunciated in Nazir Ahmad s case has no application Since therefore the Government had a distinct right to apply for permits under Ch IV of the Act no question of applying for permits without the right to do so and thereby infringing the petitioner s fundamental right under article 191g could arise Nazir Ahmad vs King Emperor 1936 LR 63 IA 372 held inapplicable Taylor vs Taylor distinguished Nor could the maxim expressio unius est exclusio alter us be of any help to the petitioner That maxim has its utility in ascertaining the intention of the legislature Since section 423a of the leaves no manner of doubt as to that intention by its clear indication that the Government cannot run buses as a commercial enterprise without first obtaining permitsunder section 421 Of the Act that maxim cannot operate so as to imply a prohibition against applying under Ch IV of the Act There was therefore no reason for holding that Ch IVA of the Act contained the only provision under which the Govern ment could be allowed to ply stage carriages Viscountess Rhondda s claim and Motilal vs Government of Uttar Pyadesh considered It was not correct to say that the State was not intended to compete with private citizens in obtaining permits under Ch IV of the Act Section 47 of the Act lends no support to such a proposition and article 196 of the Constitution indicates that the Government can enter into such competition without infringing any of the fundamental rights 179 The Regional Transport Authority in granting permits acts in a quasi judicial capacity If its decision was in any way erroneous having regard to the proviso to section 471 of the Act that could not amount to a violation of article 14 of the Constitution The petitioner had other remedies open to him Nor could Ch IV of the Act be said in view of article 196 of the Constitution to offend that Article by permitting open competition between the State and a private citizen

Civil Appeals Nos 228 to 230 of 1958 Appeals from the judgment and decree dated July 2 1957 of the Patna High Court in Misc Judicial Case No 640 of 1955 59 N A Palkhivala Thakur Prasad and R C Prasad for the appellant C K Daphtary Solicitor General of India R Ganapathy Iyer and D Gupta for the respondent February 22 The Judgment of the Court was delivered by KAPUR J The appellant is a Bank registered under the Co operative Societies Act 1912 Act II of 1912 and is deemed to be registered under the Bihar Orissa Co operative Societies Act 1935 Bihar Act VI of 1935 which in Bihar has replaced the Cooperative Societies Act of 1912 It was carrying on banking business in the State of Bihar One of the objects of the Bank is to carry on general business of banking not repugnant to the provisions of the Bihar Act and rules framed thereunder for the time being in force Bye Law 3avi In the calendar years 1945 1946 and 1947 the appellant Bank received by way of interest on deposits with the Imperial Bank of India the sums of Rs 7192 Rs 20250 and Rs 22600 respectively It is these sums which are the subject matter of dispute in these three appeals which relate to the respective assessment years 1946 47 1947 48 and 1948 49 These sums were not assessed when assessment was made under section 233 of the Income tax Act but subsequently under section 34 they were assessed as being income under the head other sources This order was upheld by the Appellate Assistant Commissioner and by the Income tax Appellate Tribunal A case was then stated to the High Court under section 661 of the Act but was decided against the appellant The appellant brought three appeals in this Court in regard to the three assessment years In each one of them the respondent is the Commissioner of Income tax Bihar Orissa As the appeals involve a common question of law they were consolidated and can conveniently be disposed of by one judgment In its return the appellant showed these various sums as I other sources but nothing turns on the manner in which the appellant chose to show this income in its return The Income tax Officer however assessed the interest for these three years 60 under section 12 of the Income tax Act as income from I other sources The appellant took an appeal to the Appellate Assistant Commissioner where it was contended that as the business of the appellant Bank consisted of lending money and the deposits had been made not for the purpose of investment but for that business and thereby fulfilling the purpose for which the Co operative Bank was constituted these various sums of interest were not subject to income tax because of the Notification issued by the Central Government under section 60 of the Income tax Act The relevant portion of that Notification CBR Notification No 35 dated October 20 1934 and No 33 dated August 18 1945 was The following classes of income shall be exempt from the tax payable under the said Act but shall be taken into account in determining the total income of an assessee for the purpose of the said Act 2 The profits of any Co operative Society other than the Sanikatta Salt Owners Society in the Bombay Presidency for the time being registered under the Act II of 1912 the Bombay Co operative Societies Act 1925 Bombay Act VII of 1925 or the Madras Cooperative Societies Act 1932 Madras Act VI of 1932 or the dividends or other payments received by the members of any such Society out of such profits ExplanationFor this purpose the profits of a Co operative Society shall not be deemed to include any income profits or gains from 1 Investments in a securities of the nature referred to in section 8 of the Indian Income tax Act or b property of the nature referred to in section 9 of that Act 2 dividends or 3 the other sources referred to in section 12 of the Indian Income tax Act The Appellate Assistant Commissioner however repelled the contention of the appellant He held that the business of the appellant consisted of I lend 61 ing money and selling agricultural and other products to its constituents which could be planned ahead and required no provision for extraordinary claims He remarked that it appeared from the balance sheets that in the accounting year 1945 the Bank invested Rs 1350000 as fixed deposits which in the following year was raised to Rs 1500000 and it was only in the accounting year 1947 that the fixed deposits were realised on maturity with interest He was also of the opinion that the length of the period during which this money I was kept locked in this way showed clearly that I not the exigencies of pressing necessities but the motives of investment of surplus fund had actuated the deposits He therefore held that the fixed deposits with the Imperial Bank were held as an investment quite apart from the business of the appellant and the interest from these deposits was not exempt from income tax He further held that the exemption as to the profit of a Co operative Society extended to its sphere of co operative activities and therefore interest from investments was no part of the appellant s business profits exempt from taxation Against this order an appeal was taken to the Income tax Appellate Tribunal and it was there contended that the Bank did not make the deposits as investments but in order that cash might be available to the appellant continuously for the carrying on of the purposes of its business and that the deposits were intimately connected with the business of the appellant and therefore the interest should have been held to be profits arising from the business activities of the Bank and that the finding that the short term deposits in the Imperial Bank were separate from the appellant s banking business was erroneous The Income tax Appellate Tribunal by its order dated April 11 1955 held 1 That the interest was an income rightly to be included under the head of I other sources 2 The profits of a Co operative Society indicates the profit derived from the business which can be truly called the business of the Co operative 62 Society Investments by the society either in securities or in shares or in bank fixed deposits are made out of surplus funds The interest or dividend derived from such investment cannot be regarded as part of the profits of the business sic qua such bank and therefore it is not exempt from income tax Vide Hoshiarvur Central Co operative Bank vs Commissioner of Income tax 1 Against this order a case was stated at the instance of the appellant under section 661 of the Act and the following two questions of law were referred for the opinion of the High Court 1 Whether in the facts and circumstances of this case the receipt of interest on fixed deposits was an income under the head of I other sources and 2 Whether in the facts and circumstances of this case the receipt of interest from the fixed deposits was an income not exempt from taxation under the C B R Notification No 35 dated 20th October 1934 and No 33 dated the 18th August 1945 In the High Court the appellant s contention was that the fixed deposits were made with the Imperial Bank of India not with the idea of making investments but for the reason that cash should be available to the appellant is and when it was needed for the purposes of its business It was also contended that the deposits were short term deposits and that the Bank could not carry on its business without such short term deposits In other words the contention was that making deposits with the Imperial Bank was intimately connected with the business activities of the appellant Bank and that the interest received on the deposits was profit attributable to its business activities But the High Court did not accept this contention It held that if the income derived by a Co operative Society was from the business of the Co operative Society as such it fell within the exemption but if it arose out of the business with third parties as in the case of investment of surplus assets the exemption was inapplicable because the 1 350 63 investment of fluid assets was not a part of the business of the Co operative Bank and the reason for the Notification was to exempt profits accruing to a Cooperative Society from carrying on business of a mutual co operative society and upon the ground that a man cannot make profit or loss out of himself The ground of mutuality was not relied upon before us by the learned Solicitor General who appeared for the respondent So the sole question for determination is whether the investment by a Cooperative Bank of its assets in fixed deposits in the manner that the appellant Bank had deposited its moneys falls within the term I business and is there fore assessable under section 10 of the Income tax Act or it is an investment the interest from which would fall under the term I other sources and therefore within section 12 of the Income tax Act It was contended by the learned Solicitor General that the finding of the Appellate Tribunal as to the nature of these deposits was one of fact This contention is not sustainable It has not been treated as a finding of fact either by the Appellate Tribunal or by the High Court They have both treated it as a question of law and it is on that basis that the reference was made The decision of the question depends on what is comprised within the ordinary business of a bank and whether the business of the appellant bank is in any way different Relying upon the decision of the Privy Council in The Punjab Co operative Bank Ltd vs The Commissioner of Income tax Punjab 1 counsel for the appellant submitted that the business of a bank is one of dealing in money and credit and that laying out moneys in deposit with other banks is just as much a mode of conducting business as lending moneys to borrowers whether members of the society or to other co operative societies and is therefore a part of the appellant s business Therefore where out of moneys in deposit with a bank a portion is put away or laid out in securities or in deposits with another banker two objects are served 1 the moneys which are not immediately required do not remain idle but 1 1940 64 earn interest and 2 if and when money is required to meet any demand the investment i e the deposits as well as the securities provide a source from which these requirements can easily be met Thus the credit of the bank remains unimpaired and its moneys continue to earn interest Counsel for the respondent argued that where moneys are so laid out they cannot be termed carrying on business of the bank and therefore any sums coming in from such investments cannot be termed profits arising from business but they are income from I others sources In support of this argument reliance was placed by counsel on The Madras Central Urban Bank Ltd vs Commissioner of lncome Tax 1 The Madras Provincial Co operative Bank Ltd Madras vs Commissioner of Income Tax Madras 2 Commissioner of Income Tax Burma vs Bengalee Urban Co operative Credit Society Ltd 3 Commissioner of Income Tax Madras V Madras Provincial Co operative Bank Ltd 4 Hoshiarpur Central Co aperative Bank Ltd vs Commissioner of Income Tax Simla 5 Cochin Cottage Industries Cooperative Marketing Society Ltd vs Commissioner of Income Tax Mysore C 6 But none of these cases supports the argument raised on behalf of the respondent In the Madras Central Urban Bank case 1 the society was required to invest 40 per cent of its total liability under call deposits in a liquid or fluid form and the society invested it in Government securities which produced interest It was held that interest from securities was not part of the profits of the business of the society as it was not obliged to invest in such securities Similarly in the Madras Provincial Co operative Bank Case 2 also the income which was the subject matter of dispute was interest received by the bank from its investments in Government securities and it was held that it was not part of the income derived from its business The Rangoon case Commissioner of Income tax Burma vs Bengalee Urban Co operative Credit Society 3 was also a case relating 1 ILR FB 2 ILR FB 3 4 ILR 5 6 1956 65 to income derived from interest on capital invested in Government securities At p 128 Page C J said from securities nor income derived from CO property are I profits within the meaning of that term as used in the notification It Cc may be that investment of capital in properties or securities is part of the business of an assessee and in such a case in my opinion the net income accruing from such investments would be and be chargeable as profits of the business As the matter had not been considered from this point of view the case was sent back for doing so These cases before the amendment of the Notification show that the income which was exempted was profit from business and not income from sources which fell under sections 8 and 9 of the Income tax Act The Commissioner of Income tax Madras vs The Madras Provincial Co operative Bank Ltd 1 was a case where moneys had been invested in debentures and for reasons similar to the ones given in the cases above mentioned it was held that interest derived therefrom was not profits of the business Counsel for the respondent relied on a judgment of the Punjab High Court in Hoshiarpur Central Cooperative Bank vs Commissioner of Income tax Simla 2 In that case the Government authorised the Bank to deal in sugar oil and standard cloth and it made profit thereform Those activities were neither its business under the bye laws nor within its objects The question was whether this profit was exempt from income tax on account of its being profits of a co operative society and it was held that the decided cases showed that where income was derived by a co operative society the profits were within the exemption but not if the business was of the nature not covered by the objects of the society This line of reasoning has not formed part of the respondent s argument in this Court and the case therefore has no application to the facts of the present case The decision in Cochin Cottage Industries Co operative 1 ILR 2 9 66 Marketing Society Ltd vs Commissioner of Income tax Mysore c 1 proceeded on the same ground In that case the profit which was held not to be exempt under the Notification was the apportioned profit of the society from its dealings with non members In the Surat Peoples Co operative Bank Ltd vs The Commissioner of Income tax Ahmedabad 2 the profit arose during the course of banking business out of the sale of Government securities which formed part of the stock in trade and as it was a co operative bank the profits made from such sales were held to be exempt from taxation under the Notification In the instant case the co operative society the appellant is a Bank One of its objects is to carry on the general business of banking Like other banks money is its stock in trade or circulating capital and its normal business is to deal in money and credit It cannot be said that the business of such a Bank consists only in receiving deposits and lending money to its members or such other societies as are mentioned in the objects and that when it lays out its moneys so that they may be readily available to meet the demand of its depositors if and when they arise it is not a legitimate mode of carrying on of its banking business The Privy Council in The Punjab Cooperative Bank Ltd vs The Commissioner of Incometax Lahore 3 where the profites arose from the sale of Government securities pointed out at p 645 that in the ordinary cases the business of a Bank essentially consists of dealing with money and credit Depositors put their money in the Bank at a small rate of interest and in order to meet their demands if and when they arise the Bank has always to keep suffi cient cash or easily realizable securities That is a normal step in the carrying on of the banking business In other words I that is an act done in what is truly the carrying on or carrying out of a business It may be added that another mode of conducting business of a Bank is to place its funds in deposit with other banks and that also is to meet demands which may be made on it It was however argued 1 2 3 67 that in the instant case the moneys had been deposited with the Imperial Bank on long term deposits inasmuch as they were deposited for one year and were renewed from time to time also for a year but as is shown by the accounts these deposits fell due at short intervals and would have been available to the appellant had any need arisen Stress was laid on the use of the word I surplus both by the tribunal as well as by the High Court and it was also contended before us that in the byelaws under the heading I business of the bank it was provided that the bank could I invest surplus funds when not required for the business of the bank in one or more ways specified in section 19 of the Bihar Act Cl 4 111i of the Bye Laws Whether funds invested as provided in section 19 of the Bihar Act would be surplus or not does not arise for decision in this case but it has not been shown that the moneys which were in deposit with other banks were I surplus within that bye law so as to take it out of banking business As we have pointed out above it is a normal mode of carrying on banking business to invest moneys in a manner that they are readily available and that is just as much a part of the mode of conducting a Bank s business as receiving deposits or lending moneys or discounting hundies or issuing demand drafts That is how the circulating capital is employed and that is the normal course of business of a bank The moneys laid out in the form of deposits as in the instant case would not cease to be a part of the circulating capital of the appellant nor would they cease to form part of its banking business The returns flowing from them would form part of its profits from its business In a commercial sense the directors of the company owe it to the bank to make investments which earn them interest instead of letting moneys lie idle It cannot be said that the funds of the Bank which were not lent to borrowers but were laid out in the form of deposits in another bank to add to the profit instead of lying idle necessarily ceased to be a part of the stock in trade of the bank or that the interest arising therefrom did not form part of its business profits Under the bye laws 68 one of the objects of the appellant bank is to carry on the general business of banking and therefore subject to the Co operative Societies Act it has to carry on its business in the manner that ordinary banks do It may be added that the various heads under section 6 of the Income Tax Act and the provisions of that Act applicable to these various heads are mutually exclusive Section 12 is a residuary section and does not come into operation until the preceding heads are excluded Commissioner of Income tax vs Basant Rai Takhat Singh 1 In our opinion the High Court was in error in treating interest derived from deposits as not arising from the business of the Bank and therefore not falling within the income exempted under the Notification The appeal must therefore be allowed and the judgment and order of the High Court set aside The appellant will have its costs in this Court and in the Court below Appeal allowed

A dispute relating to a workman in the appellant sugar mill situate in Bihar was raised by the Workers Union and a reference was made by the State Government Under section 2 a 1 of the Appropriate Government means in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government or concerning any such controlled industry as may be specified in this behalf by the Central Government the Central Government The question was whether the State Government was competent to make the reference as sugar was a controlled industry under the Industries Development and Regulation Act 1951 Held that in order that the appropriate government under section 2 a 1 of the may be the Central Government for a controlled industry it is necessary that such controlled industry should be specified by the Central Government and that in the absence of a notification for the 215 purposes of section 2 a 1 of the Act the State Government was competent to make the reference The Bijoy Colton Mills Ltd vs Their Workmen and Another followed

Appeal No 335 of 1956 Appeal by special leave from the judgment and order dated August 25 1954 of the Bombay High Court in Income tax Reference No 1 of 1954 NA Palkhivala section N Andley and J B Dadachanji for the appellant KN Rajagopal Sastri and D Gupta for the respondent March 4 The Judgment of the Court was delivered by SK DAS J This appeal by special leave is from the decision of the Bombay High Court dated August 25 1954 in Income tax Reference No 1 of 1954 The only question which falls for decision in the appeal is the true scope and effect of the third proviso to old section 12B1 of the Indian Income Tax Act hereinafter referred to as the Act The facts relevant to the appeal are these one Henry Gannon was a resident of British India who used to be assessed to income tax under the Income tax law of this country He left India in 1944 for the United Kingdom where he died on May 13 1945 He left a will dated November 18 1942 by which the National Bank of India Ltd in London was appointed Executor of his estate On October 1 1945 probate 169 of the will was granted to the said Bank by a Court of competent jurisdiction in the United Kingdom On October 25 1945 a power of attorney was given by the Bank to James Anderson who is now the appellant before us He made an application to the High Court of Bombay under section 241 of the Indian Succession Act and on that application obtained Letters of Administration with a copy of the will annexed In the course of administration of the estate of Henry Gannon the appellant sold certain shares and securities belonging to the deceased for the purpose of distributing the assets amongst the legatees The sale of these shares and securities realised more than their cost price The excess of the sale price over the cost price was treated by the Income Tax Officer as capital gain under section 12B of the Income Tax Act For the assessment year 1947 48 the capital gain was computed by the Income Tax Officer at Rs 2013738 and for the assessment year 1948 49 at Rs 151963 These amounts of capital gain were brought to tax for the assessment year 1947 48 and 1948 49 along with certain dividend and interest income which had accrued or had been received in the relevant years of account Not satisfied with these assessments the appellant preferred two appeals to the Appellate Tribunal Bombay These two appeals were consolidated The appellant urged three points in support of his contention that the assessments were invalid firstly that section 12B imposing a tax on capital gains was ultra vires the Government of India Act 1935 secondly that under section 24B of the Act the appellant was only liable to pay tax which the testator would have been liable to pay and as these capital assets were not sold by the testator there was no liability upon the appellant and thirdly that the sale of the shares and securities by the appellant under the will of Henry Gannon came within the purview of the third proviso to section 12B1 and therefore was riot to be treated as a sale of capital assets under section 12B1 The Appellate Tribunal repelled the first two contentions but accepted the third as correct and in that view allowed the two appeals in part It directed the Income Tax Officer to delete from the assessed income 22 170 the capital gains made by the sale of shares and securities The Commissioner of Income tax Bombay City then moved the Appellate Tribunal to refer to the High Court of Bombay the question which arose out of the third contention namely the true scope and effect of the third proviso to old section 12B1 of the Act The Appellate Tribunal thereupon referred the following question of law to the Bombay High Court Whether the sale of the shares and securities by the administrator of the estate of late Mr Gannon is not a sale for the purpose of Section 12B1 in view of the third proviso to section 12B1 of the Indian Income Tax Act At the instance of the assessee the other two questions which were decided against him were also referred to the High Court The High Court of Bombay considered all the three questions in Income tax Reference No 1 of 1954 and by its decision appealed from answered all the three questions against the assessee The appellant then moved this Court for special leave which was granted on October 7 1955 The question whether the levy of capital gains under section 12B is ultra vires no longer survives by reason of the decision of this Court in Navinchandra Mafatlal vs Commissioner of Income tax1 This question was not therefore pressed before us The question under section 24B was also not seriously pressed The view of the Bombay High Court that section 24B does not limit the liability of the Administrator or Executor to the cases referred to under that section is correct because the appellant is as much an assessee under the Act as any other individual and if he makes capital gains he is as much liable to pay tax as any other individual This position has not been seriously contested before us We are therefore left only with the question which turns on the true scope and effect of the third proviso to old section 12B1 of the Act Capital gains were charged for the first time by the Income tax and Excess Profits Tax Amendment Act 1947 which inserted section 12B in the Act It taxed capital gains arising after March 31 1946 The levy was virtually abolished by the Indian 1 1955 I SCR 829 171 Finance Act 1949 which confined the operation of the section to capital gains arising before April 1 1948 but it was revived with effect from April 1 1957 by the Finance No which substituted the present section We are concerned in this appeal with the old section That section leaving out those parts which are not relevant for our purposes ran as follows section 12B Capital gains 1 The tax shall be payable by an assessee under the head capital gains in respect of any profits or gains arising from the sale exchange or transfer of a capital asset effected after the 31st day of March 1946 and before the 1st day of April 1948 and such profits and gains shall be deemed to be income of the previous year in which the sale exchange or transfer took place Provided further that any transfer of capital assets by reason of the compulsory acquisition thereof under any law for the time being in force relating to the compulsory acquisition of property for public purposes or any distribution of capital assets on the total or partial partition of a Hindu undivided family or on the dissolution of a firm or other association of persons or on the liquidation of a company or under a deed of gift bequest will or transfer on irrevocable trust shall not for the purposes of this section be treated as sale exchange or transfer of the capital assets 2 The amount of a capital gain shall be computed after making the following deductions from the full values of the consideration for which the sale exchange or transfer of the capital asset is made namely iexpenditure incurred solely in connection with such sale exchange or transfer iithe actual cost to the assessee of the capital asset including any expenditure of a capital nature incurred and borne by him in making any additions or alterations thereto but excluding any expenditure 172 in respect of which any allowance is admissible under any provisions of sections 8 9 10 and 12 3 Where any capital asset became the property of the assessee by succession inheritance or revolution or under any of the circumstances referred to in the third proviso to sub section 1 its actual cost allowable to him for the purposes of this section shall be its actual cost to the previous owner thereof and the provisions of sub section 2 shall apply accordingly and where the actual cost to the previous owner cannot be ascertained the fair market value at the date on which the capital asset became the property of the previous owner shall be deemed to be the actual cost thereof Capital asset is defined in section 24A of the Act and it was not disputed before us that the shares and securities which the appellant sold constituted capital asset within the meaning of that definition We may shortly state here the scheme of sub sections 1 2 and 3 of section 12B of the Act Sub section 1 is the substantive provision which levies a tax in respect of profits or gains arising from the sale exchange or transfer of a capital asset effected during a specified period The admitted position in this case is that the appellant sold the shares and securities which constituted capital asset within that period and thus clearly came within sub section 1 of section 12B Sub section 2 states how the amount of capital gain shall be computed and it allows certain deductions from the full value of the consideration for which the sale exchange or transfer of capital assets is made As nothing turns upon the deductions allowed under sub section 2 we need not refer to them Sub section 3 refers to a capital asset which became the property of the assessee by succession inheritance or devolution or under any of the circumstances referred to in the third proviso to sub section 1 and states what deductions the assessee is then entitled to In one case the assessee may be the administrator or executor who has himself sold the capital 173 assets in another case the assessee may be the person who has got the capital assets by succession etc or under any of the circumstances referred to in the third proviso to sub section 1 and if in the latter case the assessee sells the capital assets he brings himself within sub section 1 but is entitled to a deduction of the actual cost to the previous owner in accordance with the provisions of sub section 2 where however the actual cost to the previous owner cannot be determined he is entitled to a deduction of the fair market value at the date on which the capital assets became the property of the previous owner This in effect is the scheme of the three sub sections Manifestly the intention of the legislature is to tax the profits made by the sale exchange or transfer of capital assets and the incidence of the taxation falls at the time of the transfer If the sale is made by the administrator or executor the liability under sub section 1 falls on him if however the sale is made by a person who got the capital assets inter alia in any of the ways mentioned in sub section 3 he becomes liable to tax as and when he sells the capital assets and makes profits therefrom Now the question is what bearing the third proviso to sub section 1 has on the aforesaid scheme This proviso states in effect that under certain circumstances mentioned therein a transfer of capital assets shall not be treated as a transfer for the purposes of the section The circumstances enumerated are a compulsory acquisition of property for public purposes b distribution of capital assets on the total or partial partition of a Hindu undivided family c distribution of capital assets on the dissolution of a firm or other association of persons or on the liquidation of a company and d distribution of capital assets under a deed of gift bequest will or transfer on irrevocable trust In the present case we are concerned with the question whether there has been a distribution of capital assets by the appellant under a will so as to bring him within the ambit of the third proviso If the appellant comes within that ambit then the sales which he made of the shares and securities will not be treated as transfer within the meaning of sub s1 The contention of the appellant 174 is that there has been a distribution of capital assets by him under the Will of Henry Gannon and therefore he comes under the protection of the third proviso The High Court took the view that the expression distribution of capital assets in the third proviso can only mean such distribution in specie it cannot and does not mean distribution of the sale proceeds of the capital assets The High Court therefore held that the appellant did not come within the protection of the third proviso as he did not distribute the capital assets in specie On behalf of the appellant it has been contended before us that the High Court came to an erroneous conclusion with regard to the scope and effect of the third proviso Mr N A Palkhivala who has argued the case on behalf of the appellant has put his argument in the following way He has submitted that normally the purpose of a proviso is to carve out an exception from the substantive provision Sub section 1 of section 12B which is the substantive provision imposes the liability to tax on an assessee in respect of profits or gains arising from the sale exchange or transfer of a capital asset Leaving out the case of compulsory acquisition of property Tor public purposes which may result in capital gains Mr Palkhivala has submitted that the other cases earlier enumerated as b c and d in the proviso cannot result in any capital gains by a mere distribution in specie because on a distribution in specie upon a partition or upon a testamentary gift or gift inter vivos no capital gain can possibly be made by the person who owned the assets before the distribution and who alone can be liable to tax under the section If therefore the correct interpretation of the third proviso is distribution of capital assets in specie the proviso does not serve any purpose Therefore Mr Palkhivala has argued that the expression distribution of capital assets must be given a meaning which will fulfil a purpose and correlate the proviso to the substantive provision in sub section That meaning according to him is distribution of sale proceeds of capital assets We are unable to accept the argument as correct Firstly having regard to the definition of the expres 175 sion capital assets it would be wrong to read distribution of capital assets as meaning distribution of sale proceeds of capital assets Obviously there is a clear and vital distinction between capital assets and their sale proceeds If capital assets are sold first and a distribution of the sale proceeds is made afterwards then the sale precedes distribution and what is distributed is not capital assets but the sale proceeds thereof Secondly we do not agree that the third proviso serves no purpose if the expression distribution of capital assets is given its natural and plain meaning viz distribution in specie The High Court expressed the view that by the proviso the legislature might have intended to protect an assessee from a possible argument by the Revenue that when to take an example appropriate to the case an executor or administrator transferred the estate or part of the estate to the person entitled to it there was a transfer within the meaning of sub section 1 of section 12B To us it seems that the purpose of the proviso is abundantly clear if the scheme of sub sections 1 2 and 3 is kept in mind Assume that there is distribution of capital assets in specie amongst legatees and one of the legatees sells the capital assets which he got in one of the ways mentioned in third proviso he at once becomes liable to tax on profits made on the sale Sub section 3 makes that position clear and if the proviso is read in the context of the substantive provisions of section 12B its purpose is quite clear The purpose is this as long as there is distribution of the capital assets in specie and no sale there is no transfer for the purposes of the section but as soon as there is a sale of the capital assets and profits or gains arise therefrom the liability to tax arises whether the sale be by the administrator or the legate It is significant that the proviso uses the words for the purposes of this section and not merely sub section Indeed Mr Palkhivala was forced to concede that in view of the provisions of sub section 3 of section 12B the expression distribution of capital assets must also mean distribution in specie because under sub section 3 it is the capital asset which becomes the property of the assessee under any of the circum 176 contended that the expression meant both distribution in specie and distribution of sale proceeds We do not see why an unnatural or forced meaning should be given to the expression when by giving the expression its plain and natural meaning the third proviso fits in with the scheme of sub sections 1 2 and 3 of section 12B of the Act It is necessary to point out here that on the interpretation sought to be placed on the third proviso on behalf of the appellant the administrator will escape paying tax if he sells the capital assets but the legate will not escape if he sells the capital assets after having received them in specie from the administrator This is an anomaly which is against the scheme of section 12B of the Act We are accordingly of the view that the High Court rightly held that the expression distribution of capital assets in the third proviso to sub section 1 of section 12B of the Act means distribution in specie and not distribution of sale proceeds In the High Court an alternative argument was also presented on behalf of the assessee to the effect that the third proviso contemplated involuntary transfers This argument was based on the use of the expression by reason of in the proviso and the proviso was sought to be read as follows omitting words not relevant to the case Provided further that any transfer of capital assets by reason of any distribution of capital assets under a will shall not for the purposes of this section be treated as sale exchange or transfer of the capital assets The argument was that inasmuch as the administrator sold the shares and securities for the purpose of distributing the sale proceeds to the legatees the sale was involuntary and was necessitated by reason of the terms of the will therefore he was protected under the third proviso The High Court repelled this argument and for good reasons Firstly the question whether the sale was voluntary or involuntary is not germane to the scheme of section 12B Secondly on a proper reading of the proviso the 177 expression by reason of goes with the clause relating to compulsory acquisition of property and not with the distribution of capital assets The position seems to us to be so clear that it is un necessary to labour it or to refer to decided cases Such decisions of the High Courts as have been brought to our notice are all one way and they take the same view as was taken by the High Court in the decision under appeal see Sri Kannan Rice Mills Ltd vs Commissioner of Income tax Madras1 Commissioner of Income tax Bombay North vs Walji Damji 2 and Gowri Tile Works vs Commissioner of Income tax Madras 3 For the reasons given above we see no merit in the appeal and we dismiss it with costs Appeal dismissed

The Sessions Court has power to examine witnesses who were not examined before the Committing Magistrate because of sec 540 Criminal Procedure Code and if the witness is treated as a prosecution witness and examined by the prose cuting counsel instead of by the court that at best would be an irrigularity curable by sec 537 of the Code The proper time to object to such a procedure would be at the trial itself Sher Bahadur vs The Crown ILR and Queen Empress vs GW Hayfield ILR 14 All 212distin quished SS Jhabwala vs Emperor AIR 1933 All 690 and Mussamat Niamat vs The Crown ILR 17 All 176 approved Emperor vs Channing Arnold referred to Resort to sec 145 of the Evidence Act is necessary only if a witness denies that he made the former statement In that event it would be necessary to prove that he did and if the former statement was reduced to writing then sec 145 requires that his attention must be drawn to those parts which are to be used for contradiction But that position does not arise when the witness admits the former statement In such a case all that is necessary is to look to the former statement of which no further proof is necessary because of the admission that it was made The former statement cannot be used as substantive evidence unless sec 288 Criminal Procedure Code is called in aid but even without sec 288 the court would be entitled to say basing on the evidence in chief which is the substantive evidence that what the witness said to the police or the Committing Magistrate is the true version not because those state ments form substantive evidence but because they tally with the evidence in chief which is substantive If a former statement can be brought in under sec 157 of the Evidence Act it can be transmuted into substantive evidence by the application of sec 288 of the Criminal Procedure Code Tara Singh vs The State distinquished 813 In the certificate of the Committing Magistrate endorsed on the deposition sheet states that the deposition was read out to the witness and the witness admitted it to be correct the court is bound to accept this as correct under sec 80 of the Evidence Act until it is proved to be untrue It is not necessary nor desirable to examine the Commit ting Magistrate to prove the truth of his certificate Kashmera Singh vs The State of Madhya Pradsh 1952 SCR 526 followed Even if it be true that the deposition was not read over that would only amount to a curable irregularity and in the absence of prejudice which must be disclosed in an affidavit which shows exactly where the record departs from what the witness actually said the objection cannot be sustained

Appeal No 419 of 1956 Appeal by special leave from the decision dated January 17 1955 of the Labour Appellate Tribunal of India Bombay in Appeal Bom No 61 of 1954 NC Chatterjee D H Buch and I N Shroff for the appellants R J Kolah B Narayanaswami section N Andley J B Dadachanji Rameshwar Nath and P L Vohra for the respondents March 10 The Judgment of the Court was delivered by HIDAYATULLAH J This is an appeal with the special leave of this Court against a decision dated January 171955 of the Labour Appellate Tribunal hereinafter called the Appellate Tribunal by which it reversed a decision of the Industrial Court Bombay dated January 20 1954 in a matter referred to the Industrial Court under section 73 of the Bombay Industrial Relations Act 1946 by the Government of Bombay The appellant is the Rashtriya Mill Mazdoor Sangh representing the employees of the cotton textile mills in the city of Greater Bombay The respondents are the Apollo Mills Ltd and other companies owning cotton textile mills specified in the annexure to the Special Leave Petition and the Mill Owners Association Bombay representing the cotton textile mill industry The dispute relates to the compensation which the workers claimed for loss of wages and dearness allowances due to the short working or closure of the Textile Mills on certain days during the period between November 1 195 1 and July 13 1952 The facts of the case are as follows In the year 1951 monsoon failed and caused scarcity of water in the catchment area of the Tata Hydro Electric system from which the Mills obtained their supply of power It was therefore found necessary to reduce the consumption of electricity and Government after consulting the various Mills and also the appellant Sangh decided that the Mills should work instead of 233 48 hours for 40 hours per week during a period of 30 weeks from November 1 1951 It was also agreed that if the Mills could reduce their consumption of electricity to 56th of their normal consumption then they could work for 48 hours per week as before Some of the Mills installed their own generators but many others were compelled to reduce the working time to 40 hours in a week working at 8 hours per day As a result the working of some of the Mills was reduced by one day in the week and the Mills lost a maximum number of 38 days some more and some less One of the Mills the Ragbuvanshi Mills remained closed only on one day The order of the Bombay Government was made under section 6A1 of the Bombay Electricity Special Powers Act 1946 While this short working continued the workers claimed their wages and dearness allowances or compensation in lieu thereof Negotiations followed but when they did not result in anything to the advantage of the workers the matter was referred for arbitration to the Industrial Court by the Bombay Government on October 30 1952 under section 73 of the Bombay Industrial Relations Act 1946 The Mills raised the objection that the matter was covered by Standing Orders 16 and 17 and inasmuch as the partial closure of the Mills was due to force majeure they were not liable They contended that the Industrial Court had thus no jurisdiction as these Standing Orders were determinative of the relations between the workmen and their employers under section 401 of the Bombay Industrial Relations Act 1946 They also submitted that the orders of the Government issued under the Bombay Electricity Special Powers Act 1946 had to be obeyed and therefore no compensation was payable They pointed out that the employees were receiving fair wages and that the Mills were not in a position to bear an additional burden in view of the fact that they had lost their profits due to short working They relied upon the decision of the Bombay High Court in Digambar Ramachandra vs Khandesh Mills 1 where it was held that though an arbitrator to whom a dispute 1 30 234 falling under B 49A of the Bombay Industrial Disputes Act 1938 was referred had jurisdiction to decide the disputes within the terms of the Standing Orders framed under section 26 of that Act he had no jurisdiction to determine the liability of the employers on grounds outside the Standing Orders The Industrial Court after hearing the parties made an award on January 20 1954 and directed all the respondent Mills to pay to the employees compensation holding that Standing Orders 16 and 17 were not applicable and were therefore no bar The Industrial Court held that in view of the provisions of sections 3 402 424 73 and 78 of the Bombay Industrial Relations Act read with Sch 111 item 7 and having regard to the decision of the Federal Court in Western India Automobile Association v Industrial Tribunal Bombay 1 it had jurisdiction to grant compensation The Industrial Court therefore held that on principles of social justice the workers were entitled to compensation which it assessed at the rate of 50 per cent of the wages and dearness allowances which the workers would have drawn if the Mills had worked on the days they remained closed Against that award the Mill Owners Association and two of the Mills appealed to the Appellate Tribunal Bombay All the contentions which were raised before the industrial Court were once again raised before the Appellate Tribunal Two new contentions were raised viz that the claim for compensation was barred under section 1 1 of the Bombay Electricity Special Powers Act 1946 and was also barred by the decision of the Supreme Court in the Muir Mills Co Ltd vs Suti Mills Mazdoor Union Kanpur 2 The Appellate Tribunal by its decision now impugned before us allowed the appeal and set aside the award of the Industrial Court and dismissed the claim of the employees It held that even if Standing Orders 16 and 17 covered the case the decision in Digambar Ramachandra s case 1 could not now be applied because of the provisions of section 402 and the addition of Sch 111 item 7 in the Bombay Industrial Relations Act which provisions did not find place in the Bombay 1 2 3 235 Industrial Disputes Act 1938 under which the decision of the Bombay High Court was given The Appellate Tribunal referred to the Federal Court decision cited earlier and observed that there was no doubt that the award of compensation to workmen equal to half of their wages and dearness allowances was fair and just The Tribunal however felt compelled by the decision of this Court in the Muir Mills case 1 to reject the claim of the workers and allowed the appeal In this view of the matter the Appellate Tribunal did not decide whether section II of the Bombay Electricity Special Powers Act 1946 barred the grant of compensation The appellant in this case first contended that the Muir Mills case 1 did not apply and further that if that case was out of the way then in view of the other findings of the Appellate Tribunal and section 7 of the Industrial Disputes Appellate Tribunal Act 1950 the appeal ought to have failed since no question of law survived and the Appellate Tribunal was incompetent to reverse the decision The Mill Owners Association on the other hand contended that the opinion of the Appellate Tribunal that the Muir Mills case 1 applied was correct that section II of the Bombay Electricity Special Powers Act barred these proceedings and that in view of the fact that the closure was due to force majeure for which the Milks were not responsible Standing Orders 16 and 17 were determinative of the relations between the parties and the claim for compensation was not entertainable Other objections raised before the Appellate Tribunal were not pressed before us We begin first with the question whether section 11 of the Bombay Electricity Special Powers Act 1946 barred the reference That section reads as follows 11 1 No suit prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done in pursuance of any order direction or requirement made or deemed to have been made under section 3 4 5 6 6A 6B or 6C 1 236 The order which was made in this case by the Government of Bombay was under sub section 1 of section 6A which reads 6A1 Notwithstanding anything contained in any law for the time being in force or any permission granted under sub section 3 of section 5 or any instrument having effect by virtue of any law the Provincial Government may with a view to controlling distribution supply consumption or use of electrical energy make an order afor prohibiting or regulating subject to such conditions as it may specify in the order the distribution or supply of electrical energy by a licensee or use of such energy by a consumer for any purpose specified in such order b for determining the order of priority in whichor the period or periods during which work shall be done by an undertaking to which the supply of electrical energy is made by a licensee It was contended by the respondents that sub section 1 of section 11 quoted above barred the remedy of arbitration because the closure of the Mills was in good faith and was in pursuance of a direction or order made under section 6A1 Mr Kolah referred to the scheme of the Bombay Electricity Special Powers Act and specially to the sections dealing with penalties and offenses and contended that the Mills were helpless and were compelled to close down their esta blishments for part of the time He claimed that the protection of section 111 was available to them and argued that it gave immunity from action of any kind The present proceedings are for compensation for the period during which the Mills remained closed This claim is made by the workers against the Mills The section which confers immunity bars proceedings rising from the interference with the supply of electrical energy and its consumption It is a protection to the supplier of electrical energy against the consumer and vice versa and protects also those who act to enforce the order There is no complaint here about the reduction of electricity or even about the closure of the Mills for part of the time Neither the 237 Mills nor the workers have raised any such contention Further the sub section is a protection clause which is usually introduced in an Act where it gives new or unusual powers and is designed to give immunity to persons acting under or enforcing it The ambit of the protection is in relation to the supply and consumption of electricity which alone are curtailed by the order issued under section 6A1 of the Act The protection conferred by the first subsection of section 11 does not therefore prevent the raising of an industrial dispute resulting in an award for the equitable sharing of loss which had been occasioned to both the employers and the employees by the observance of the order The contention that the Industrial Court had no jurisdiction to hear the reference because the State Government could not make it was not pressed by the respondents and nothing need therefore be said about it It was raised in another form as will appear in the sequel Both the parties however criticised the order of the Appellate Tribunal the respondents challenging the findings adverse to them It is now necessary to deal with these contentions The case of the appellant was that the Appellate Tribunal had no jurisdiction to interfere with the order of the Industrial Court because the appeal before it did not involve a Substantial question of law and did not fall within any of the eight matters mentioned in section 71b of the Industrial Disputes Appellate Tribunal Act 1950 which gave appellate jurisdiction to the Appellate Tribunal The appellant referred to cases in which it has been held that the Appellate Tribunal could not interfere on facts It is not necessary to analyse those cases for reasons which we proceed to state The Industrial Disputes Appellate Tribunal Act conferred appellate powers on the Appellate Tribunal if there was a substantial question of law arising from the award or the matter fell within eight enumerated subjects The respondents attempted to bring the matter within cl 1 of section 71b that is to say wages which is one of the eight subjects But there is no question here of wages as such but of 238 compensation Learned counsel for the respondents also argued that a conclusion drawn without adverting to the evidence involved a question of law and a legal inference from proved facts and an appeal thus lay He relied upon Anglo Iranian Oil Co India Ltd vs Petroleum Workers Union 1 and Crompton Parkinson Works vs Its Workmen 2 It may not be necessary to discuss the matter at length because even if the subject matter did not fall within any of the eight enumerated topics there was a substantial question of law involved inasmuch as it was necessary to decide whether a claim for compensation was not admissible in view of the provisions of the Bombay Industrial Relations Act and the Standing Orders It has been pointed out already that the failure to continue to employ labour was due to the short supply of electrical energy and the question is whether in these admitted circumstances Standing Orders 16 and 17 read with section 401 and item 9 of Sch 1 of the Bombay Industrial Relations Act rendered the employers immune from a claim for compensation for loss of wages and dearness allowances The respondents claimed that they did while the appellant maintained that they did not and referred to sections 402 424 73 and 781A and item 7 of Sch III of the same Act This is a substantial question of law and the appeal was thus competent The crux of the matter is the provisions of Standing Orders 16 and 17 which are to be read with section 401 of the Bombay Industrial Relations Act Standing Orders 16 and 17 read as follows 16The Company may at any time or times in the event of a fire catastrophe breakdown of machinery or stoppage of the power supply epidemic civil commotion or other cause beyond the control of the Company stop any machine or machines or department or departments wholly or partially for any period or periods without notice and without compensation in lieu of notice In the event of a stoppage of any machine or department under this Order during working hours the operatives affected shall be notified by notices 1 2 1959 SUPP 2 SCR 936 239 put upon notice boards in the department concerned and at the time keeper s office as soon as practicable when work will be resumed and whether they are to remain or leave the mill The period of detention in the mill shall not ordinarily exceed one hour after the commencement of the stoppage If the period of detention does not exceed one hour operatives so detained shall not be paid for the period of detention If the period of detention in the mill exceeds one hour operatives so detained shall be entitled to receive wages for the whole of the time during which they are detained in the mill as a result of the stoppage In the case of pieceworkers the average daily earnings for the previous month shall be taken to be the daily wages 17Any operative played off Linder Order 16 shall not be considered as dismissed from service but as temporarily unemployed and shall not be entitled to wages during such unemployment except to the extent mentioned in Order 16 Whenever practicable a reasonable notice shall be given of resumption of normal work and all operatives playedoff under Order 16 who present themselves for work when the normal working is resumed shall have prior right of reinstatement The argument of the respondents was two fold 1 that these two Standing Orders fully covered a closure due to stoppage of power and 2 that under section 401 of the Bombay Industrial Relations Act 1946 the Standing Orders were determinative of the relations between the employer and the employees in regard to all industrial matters specified in Sch 1 which contains the following items 4 Closure or reopening of a department or a section of a department or the whole of the undertaking and 9 Temporary closures of work including playing off and rights and liabilities of employers and employees They also invoked the decision in Digambar Ramachndra s case 1 and added that the position had not been altered even by the addition of the second sub 1 240 section to section 40 in the Bombay Industrial Relations Act We may at this stage read section 40 40 1 Standing orders in respect of an employer and his employees settled under this Chapter and in operation or where there are no such standing orders model standing orders if any applicable under the provisions of sub section 5 of section 35 shall be determinative of the relations between the employer and his employees in regard to all industrial matters specified in Schedule I 2Notwithstanding anything contained in subsection 1 the State Government may refer or an employee or a representative union may apply in respect of any dispute of the nature referred to in clause a of paragraph A of section 78 to a Labour Court The respondents contended that only the first subsection applied and that under Standing Orders 16 and 17 quoted above no compensation was claimable The appellant pointed out that the second sub section excluded the first sub section because of the nonobstructive clause with which it is prefaced and in view of the position of the Industrial Court as the appellate authority from awards of the Labour Court the former was not also bound by the first sub section or the Standing Orders There is some force in the contention of the appellant but in our opinion Standing Orders 16 and 17 do not in terms apply to a claim for compensation such as is made here Standing Order 16 speaks of stoppage without notice and without compensation in lieu of notice The compensation which is claimed by the workers in this case is not in lieu of notice that is to say for a period equal to that in respect of which notice would have had to be given That period would be before the date of closure The Standing Order contemplates those cases in which a notice has to be dispensed with and then no compensation in lieu of notice is payable There is however here a question of quite a different sort and it is not covered by Standing Order 16 even though the closure was by reason of stoppage of power Standing Order 17 speaks of wages and 41 241 we are not concerned with wages here but with compensation which is not the same thing as wages In this view of the matter Standing Orders 16 and 17 cannot be said to cover the present facts and they are not therefore determinative of the relations between the parties The present dispute was referred to the Industrial Court under section 732 of the Bombay Industrial Relations Act 1946 That section reads as followsNotwithstanding anything contained in this Act the State Government may at any time refer an industrial dispute to the arbitration of the Industrial Court if on a report made by the Labour Officer or otherwise it is satisfied that 2the dispute is not likely to be settled by other means The non obstante clause clearly shows that in spite of the other provisions of the Bombay Industrial Relations Act an industrial dispute may be referred to the Industrial Court An industrial dispute as defined in that Act means inter alia any dispute or difference between an employer and employee or between employers and employees which is connected with an industrial matter which includes all matters pertaining to non employment of any person That these workmen were not employed on certain days goes without saying and thus there was an industrial dispute concerning their claim for compensation for the period of non employment Item 9 of Sch 1 gave the power to frame Standing Orders in relation to temporary closures The Standing Orders made covered only compensation in lieu of notice and wages for the period of closure but not compensation for closure In the view which we have taken of the Standing Orders it is not necessary to decide whether item 7 of Sch III relates only to compensation for permanent closure or whether item 9 of Sch 1 gave the power to make a Standing Order relating to compensation for temporary closure It is enough to say that Standing Orders 16 and 17 as they stand do not cover a case of compensation for closure 242 The powers of the Industrial Court under section 73 of the Bombay Industrial Relations Act are very wide inasmuch as the State Government can refer an industrial dispute to it notwithstanding anything contained in the Act It was in view of this that the objection to the jurisdiction of the Industrial Court was not pressed But the argument was advanced in another form to show that Standing Orders 16 and 17 were determinative and did not enable the Industrial Court to decide in any manner except in accordance with those Standing Orders Reliance was also placed upon Digambar Ramachandra s case 1 where Chagla CJ and Bhagwati J decided that the arbitrator was bound by the Standing Orders and could not go outside them We are of opinion that Standing Orders 16 and 17 do not apply to the present facts for reasons already stated and we express our dissent from that decision in so far as it held that the Standing Orders covered a case of compensation for closure also We note further that in the Bombay Industrial Disputes Act 1938 there was no item similar to the one in Sch III of the Bombay Industrial Relations Act In Textile Labour Association Ahmedabad vs Ahmedabad Millowners Association Ahmedabad 2 Sir H V Divatia Rajadhyaksha J and Mr D V Vyas later Vyas J correctly held that the Standing Orders did not cover a case of compensation for loss of earnings The head note adequately summarises the decision and may be quoted It reads Although the workers are not entitled to demand their wages during the period of stoppage of work as that matter has been sic covered by the Standing Orders there is nothing to prevent them from giving any notice of change demanding compensation for the loss of their earnings It cannot be said that the jurisdiction of the Court is barred by the provisions of Standing Orders Nos 16 17 No doubt the reference there was under section 43 of the Bombay Industrial Disputes Act 1938 but the provisions of section 73 of the Bombay Industrial Relations Act are wide enough to cover a reference on the same topic We are therefore of opinion that the claim 1 2 1946 47 Industial Court Reporter 87 243 for compensation was not barred by Standing Orders 16 and 17 read with a 401 of the Bombay Industrial Relations Act The respondents further contended that the principle of social justice applied by the Industrial Court and accepted by the Appellate Tribunal could not apply because of the decision of this Court in the Muir Mills case 1 They also contended that the case for bonus was decided along with the present case and both bonus and dearness allowances were increased by the Appellate Tribunal in respect of 38 Mills and even the remaining 15 Mills which had suffered loss had given minimum bonus to their workers They argued that wages were fair and bonus was awarded and dearness allowance was increased and that the Appellate Tribunal took all this into account in refusing compensation They submitted that the Mills suffered heavy losses due to short working and that it was sheer injustice to make them pay wages or compensation for days on which the Mills remined closed and lost their profits through stoppage of normal working The Muir Mills case 1 was concerned with the award of bonus which is linked with profits It was there laid down that inasmuch as the labour employed in an industrial undertaking is ever changing the award of bonus can only be from the profits to which labour in any particular year contributed and labour cannot claim that profits and reserves of some other years should be used for the purpose of giving them bonus We are not concerned in this case with the award of bonus as such and we need not therefore make use of the reasons which appealed to this Court in that case The narrow sphere in which social justice demands that workmen going into forced unemployment should receive compensation is quite different Social justice is not based on contractual relations and is not to be enforced on the principles of contract of service It is something outside these principles and is invoked to do justice without a contract to back it Mahajan J as he then was observed in Western India Automobile Association vs Industrial Tribunal Bombay 2 as follows 1 2 244 Adjudication does not in our opinion mean adjudication according to the strict law of master and servant The award of the Tribunal may contain provisions for settlement of a dispute which no Court could order if it was bound by ordinary law but the Tribunal is not fettered in any way by these limitations In Volume 1 of I Labour Disputes and Collective Bargaining by Ludwig Teller it is said at page 536 that industrial arbitration may involve the extension of an existing agreement or the making of a new one or in general the creation of a new obligation or modification of old ones while commercial arbitration generally concerns itself with the interpretation of existing obligations and disputes relating to existing agreements In our opinion it is a true statement about the functions of an Industrial Tribunal in labour disputes Here what better measure could have been adopted by the Industrial Court which is approved by the Appellate Tribunal than to divide the loss into two parts one to be borne by the industrial concerns and the other by the workmen There is no other basis suggested by the one side or the other It was contended that the loss to labour went into the consideration of the grant of bonus and that the two cases were heard together The Appellate Tribunal says so But bonus is to come out of profits and is the share of labour in the profits it has helped to earn to bridge the gap between wages as they are and the living wage Compensation in the present context is for loss of wages and dearness allowance and the two cannot be considered together on any principle There is nothing to show that in spite of the formula which the Appellate Tribunal had evolved for itself it took into account some other factors quite alien to the said formula It appears to us that what the Appellate Tribunal really meant to say was that inasmuch as the workers were paid bonus they should not make a grievance if they lost wages on some of the days because if compensation were paid bonus would have had to be reduced If that is the meaning as it obviously is then the question of compensation was not decided at all In our opinion this reasoning was 245 beside the point It was wholly immaterial whether profits were made or losses were incurred in the year if the employers continued to retain the labour force so as to be available for the days on which the Mills worked In our opinion the Appellate Tribunal after giving a finding that a claim for compensation equal to half the wages and dearness allowances was just and proper erred in holding that it was not admissible because of the decision of this Court in the Muir Mills case 1 That case had no application to the facts here The Appellate Tribunal also erred in declining to grant compensation on the ground that since bonus was granted the claim for compensation could not be entertained The case of badli workers does not appear to have been separately raised and we see no reason not to award them compensation but payment of such compensation will be subject to the same condition as was imposed by the Industrial Court In the result the appeal will be allowed the order of the Appellate Tribunal set aside and the order of the Industrial Court restored The respondents shall bear the costs here and in the Tribunals below Appeal allowed

The Appellant Bank which was registered under the Co operative Societies Act 1922 received in the relevant account years by way of interest on deposits with the Imperial Bank of India certain sums of money The Income tax Officer assessed the aforesaid sums under section 12 of the Indian Income tax Act 1922 as income from other sources but the appellant claimed that the deposits were made not with the idea of making investments but for the purpose of carrying on its business as a bank and that as the interest received on the deposits was profit attributable to its business activities it was not subject to incometax because of the Notification issued by the Central Government under section 6o of the Act Under the Notification profits of any Co operative Society are exempt from the tax payable under the Act but not income derived from other sources referred to in section 12 of the Act Held that the interest from deposits received by the Appel lant Bank in the present case arose out of a transaction entered into for the purpose of carrying on its banking business and fell within the income exempted under the Notification The Punjab Co operative Bank Ltd vs The Commissioner of Income tax Punjab relied on

Appeal No 425 of 1958 Appeal by special leave from the Decision dated October 9 1956 of the Labour Appellate Tribunal of India Bombay in Appeal Bom No 111 of 1956 M C Setalvad Attorney General of India section N Andley J B Dadachanji Rameshwar Nath and P L Vohra for the appellants M section K Sastri for the respondent March 15 The Judgment of the Court was delivered by GAJENDRAGADKAR J This appeal by special leave raises a short question about the construction of the notification No 1131 46 issued by the Government of Bombay on October 4 1952 under section 24 of the Bombay Industrial Relations Act 1946 Bom 11 of 1947 hereinafter called the Act The respondent 306 who was a stenographer employed by the appellant the Godavari Sugar Mills Ltd at its head office in Bombay was dismissed by the appellant on April 22 1955 He had been working as a stenographer for some years past on a salary of Rs 135 plus Rs 27 as dearness allowance He was charged with having committed acts of disobedience and insubordination and after a proper enquiry where he was given an opportunity to defend himself he was found guilty of the alleged misconduct that is why his services were terminated that is the appellant s case The respondent challenged the legality and propriety of his dismissal by an application before the Labour Court at Bombay he purported to make this application under section 424 read with section 78 1 a i and iii of the Act The appellant in reply challenged the competence of the application on the ground that the Act did not apply to the respondent s case and so the Labour Court had no jurisdiction to entertain it Both the parties agreed that the question of jurisdiction thus raised by the appellant should be tried as a preliminary issue and so the Labour Court considered the said objection and upheld it It held that the notification in question on which the respondent relied did not apply to the head office of the appellant at Bombay accordingly the Labour Court dismissed the respondent s application The respondent challenged the correctness of this decision by preferring an appeal before the Industrial Court His appeal however failed since the Industrial Court agreed with the Labour Court in holding that the notification did not apply to the head office of the appellant The matter was then taken by the respondent before the Labour Appellate Tribunal and this time the respondent succeeded the Labour Appellate Tribunal having held that the notification applied to the head office and that the respondent was entitled to claim the benefit of the provisions of the Act On this finding the Labour Appellate Tribunal set aside the order passed by the courts below and remanded the case to the Labour Court for disposal on the merits in accordance with law It is this order which has given rise to the present appeal and the only question which it 307 raises for our decision is whether the notification in question applies to the head office of the appellant at Bombay The Act has been passed by the Bombay Legislature in order to regulate relations of employers and employees to make provision for settlement of indus trial disputes and to provide for certain other purposes It has made elaborate provisions in order to carry out its object and has conferred some benefits on the employees in addition to those which have been conferred on them by the Central Industrial Disputes Act XIV of 1947 Under section 424 of the Act for instance an employee desiring a change in respect of any order passed by the employer under standing orders can make an application to the Labour Court in that behalf subject to the proviso which it is unnecessary to set out Section 781aiii requires the Labour Court to decide whether any change made by an employer or desired by an employee should be made An order of dismissal passed by an employer can therefore be challenged by the employee directly by an application before the Labour Court under the Act whereas under the Central Act a complaint against wrongful dismissal can become an industrial dispute only if it is sponsored by the relevant union or taken up by a group of employees and is referred to the industrial tribunal for adjudication under section 10 of the Act Since the respondent claims a special benefit under the Act he contends that his case falls under the notification It is common ground that if the notification applies to the case of the respondent the application made by him to the Labour Court would be competent and would have to be considered on the merits on the other hand if the said notification does not apply then the application is incompetent and must be dismissed in limine on that ground Let us now read the notification It has been issued by the Government of Bombay in exercise of the powers conferred on it by section 2 sub section 4 of the Act and in supersession of an earlier notification and it provides that the Government of Bombay is pleased to direct that all the provisions of the said Act shall 308 apply to the following industry viz the manufacture of sugar and its by products Including 1 the growing of sugarcane on farms belonging to or attached to concerns engaged in the said manufacture and 2 all agricultural and industrial operations connected with the growing of sugarcane or the said manufacture engaged in such concerns Note For the purposes of this notification all service or employment connected with the conduct of the above industry shall be deemed to be part of the industry when engaged in or by an employer engaged in that industry It is significant that the notification applies not to sugar industry as such but to the manufacture of sugar and its by products If the expression sugar industry had been used it would have been possible to construe that expression in a broader sense having regard to the wide definition of the word industry prescribed in section 219 of the Act but the notification has deliberately adopted a different phraseology and has brought within its purview not the sugar industry as such but the manufacture of sugar and its by products Unfortunately the Labour Appellate Tribunal has read the notification as though it referred to the sugar industry as such That is a serious infirmity in the decision of the Labour Appellate Tribunal Besides the inclusion of the two items specified in cls 1 and 2 is also significant Section 219bi shows that industry includes agriculture and agricultural operations Now if the manufacture of sugar and its by products had the same meaning as the expression sugar industry then the two items added by cls 1 and 2 would have been included in the said expression by virtue of the definition of industry itself and the addition of the two clauses would have been superfluous The fact that the two items have been included specifically clearly indicates that the first part of the notification would not have applied to them and it is with a view to extend the scope of the said clause that the inclusive words introducing the two items have been used This fact also shows the limited interpretation which must be put on the words the manufacture of sugar and its by products 309 It is true that the note added to the notification purports to include within the scope of the notification some cases of service and employment by the deeming process Unfortunately the last clause in the note is unhappily worded and it is difficult to understand what exactly it was intended to mean Even so though by the first part of the note some kinds of service or employment are deemed to be part of the industry in question by virtue of the fact that they are connected with the conduct of the said industry the latter part of the note requires that the said service or employment must be engaged in that industry It is possible that the workers engaged in manuring or a clerk in the manure depot which is required to issue manure to the agricultural farm which grows sugarcane may for instance be included within the scope of the notification by virtue of the note but it is difficult to see how the respondent who is an employee in the head office at Bombay can claim the benefit of this note The addition made by the deeming clause on the strength of the connection of certain services and employments with the conduct of the industry is also controlled by the requirement that the said services or employments must be engaged in that industry so that connection with the industry has nevertheless to be established before the note can be applied to the respondent It has been urged before us by Mr Sastri for the respondent that at the head office there is accounts department the establishment section stores purchase section and legal department and he pointed out that the machinery which is purchased for the industry is landed at Bombay received by the head office and is then sent to the factories In fact the factories and the offices attached to them are situated at Lakshmiwadi and Sakharwadi respectively and are separated by hundreds of miles from the head office at Bombay The fact that the machinery required at the factories is received at the head office and has to be forwarded to the respective factories cannot in our opinion assist the respondent in contending that the head office itself and all the employees engaged in it fall within the note to the notification The object of the 40 310 notification appears to be to confine its benefit to service or employment which is connected with the manufacture of sugar and its by products including the two items specified in cl 1 and cl 2 Subsidiary services such as those we have indicated are also included by virtue of the note but in our opinion it is difficult to extend the scope of the notification to the head office of the appellant We must accordingly hold that the Labour Appellate Tribunal erred in law in holding that the case of the respondent was governed by the notification Incidentally we would like to add that the registrar appointed under section 11 of the Act has consistently refused to recognise the staff of the head office as coming under the notification and it is common ground that the consistent practice in the matter so far is against the plea raised by the respondent It is perfectly true that in construing the notification the prevailing practice can have no relevance but if after construing the notification we come to the con clusion that the head office is outside the purview of the notification it would not be irrelevant to refer to the prevailing practice which happens to be consistent with the construction we have placed on the notification It appears that in the courts below reference was made to a similar notification issued in respect of textile industry under section 2 sub section 3 of the Act and the relevant decisions construing the said notification were cited We do not think any useful purpose will be served by considering the said notification and the decisions thereunder In the result the appeal is allowed the order passed by the Labour Appellate Tribunal is set aside and the respondent s application is dismissed There will be no order as to costs Appeal allowed

The appellant was the administrator of the estate of one Henry Gannon a resident of British India who left for the United Kingdom in 1944 and died there in 1945 In the course of administration the appellant sold certain shares and securities belonging to the deceased for the purpose of distributing the assets amongst the legatees and thereby realised more than their cost prime The excess of sale price over the cost price was treated by the Income tax Officer as capital gain under section 12 B 168 of the Income tax Act and the appellant was assessed to tax on such capital gain for the assessment years 1947 48 and 1948 49 The appellant contended that there had been a distribution of capital assets by him under the will of Henry Gannon and therefore he came under the protection of the third proviso to section 12B1 and was not liable to tax Held that the appellant was not protected by the third proviso to section 12B1 as the expression distribution of capital assets in that proviso meant distribution in specie and not distribution of sale proceeds of the capital assets So long as there was distribution of the capital assets in specie and there was no sale there was no transfer for the purposes of section 12B but as soon as there was a sale of the capital assets and profits or gains arose therefrom the liability to tax also arose whether the sale was by the administrator or by the legate Sri Kannan Rice Mills Ltd vs Commissioner of Income tax Madras Commissioner of Income tax Bombay North vs Walji Damji and Gowri Tile Works vs Commissioner of Income tax Madras referred to

minal Appeal No 116 of 1958 Appeal from the judgment and order dated February 281957 of the Calcutta High Court in Criminal Revision No 1158 of 1956 arising out of the judgment and order dated June 26 1956 of the Additional Chief Presidency Magistrate Calcutta in G R Case No 284 of 1956 K R Chaudhury for the appellant B Sen P K Ghose for P IC Bose for the respondent March 1 1 The Judgment of the Court was delivered by DAS GUPTA J The question raised in this appeal is whether a Magistrate after making an order of discharge under section 251A2 Cr P C in respect of a charge for an offence triable as a warrant case can still proceed to try the accused for another offence disclosed by the police report and triable as a summons case 247 The case against the appellant was instituted on a police report which charged him with an offence under section 332 of the IPC for voluntarily causing hurt by means of a piece of wood to the complainant Sisir Kumar Bose Bailiff of Calcutta Corporation and Chandra Sekhar Bhattacharjee an employee of Calcutta Corporation with the intent to prevent or deter those persons from discharging their duties as public servants The Magistrate after satisfying himself that the documents referred to in section 173 Cr P C had been furnished to the accused examined the documents and was of opinion after hearing counsel of both parties that the charge under section 332 IPC could not be sustained He was however of opinion that there was evidence to establish a prima facie case under section 323 IPC He accordingly charged the accused under section 323 IPC examined him and when he pleaded not guilty and claimed to be tried posted the case for the examination of prosecution witnesses On the next hearing date a submission was made on behalf of the accused that in view of the provisions of section 2512 Cr P C the accused should have been acquitted altogether and no trial for the offence under section 323 IPC could be proceeded with The Magistrate rejected this contention and directed that the trial of the accused for an offence under section 323 IPC would proceed under Chapter XX That procedure was followed and ultimately the accused was convicted under section 323 IPC and sentenced to pay a fine of rupees fifty only and in default to undergo rigorous imprisonment for one month The appellant s application under section 439 Cr PC for revision of this order was rejected by the High Court The learned Judge was of opinion that if the Magistrate finds on the materials before him that a summons case offence has been committed by the accused he has the right and duty to proceed in accordance with the provisions of Chapter XX of the Cr The word discharge used in sub section 2 of section 251A Cr PC must be read as having reference to a discharge in relation to the specific offence upon which the accused has been charge sheeted It does not necessarily mean that the accused cannot be proceeded against for some other 248 offence say a summons case offence under Chapter XX Cr PC in spite of the discharge under section 251A2 The present appeal is filed on the strength of a certificate granted by the High Court under article 1341c of the Constitution The relevant provisions of sections 251 and 251A of the Code of Criminal Procedure are in these words section 251 In the trial of warrant cases by Magistrates the Magistrates shall ain any case instituted on a police report follow the procedure specified in section 251A and bin any other case follow the procedure specified in the other provisions of this Chapter section 251 A 1 2 If upon consideration of all the documents referred to in section 173 and making such examination if any of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard the Magistrate considers the charge against the accused to be groundless he shall discharge him 3If upon such documents being considered such examination if any being made and the prosecution and the accused being given an opportunity of being heard the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter which such Magistrate is competent to try and which in his opinion could be adequately punished by him he shall frame in writing a charge against the accused It is quite clear that in deciding whether action shall be taken by him under sub section 2 or sub section 3 of section 251A the Magistrate has to form an opinion whether there is any ground for presuming that an accused has committed an offence triable under Chapter XXI or there is no such ground When his opinion is that there is ground for a presumption that the accused has committed an offence punishable under Chapter XXI Which the Magistrate is competent to try and which could be adequately punished by him he shall proceed with the trial But when he forms the opinion that there is no ground for presuming that an offence 249 punishable under Chapter XXI has been committed by the accused his duty is to discharge the accused The real question is when an order of discharge is made by the Magistrate in exercise of the powers under sub section 2 of section 251A is the discharge in respect of all the offences which the facts mentioned in the police report would make out The answer must be in the negative When the Magistrate makes an order under section 251A2 he does so as after having considered whether the charge made in the police report of the offences triable under Chapter XXI is groundless he is of opinion that the charge in respect of such offence is groundless but the order of discharge has reference onlyto such offences mentioned in the charge sheet as are triable under Chapter XXI It very often happens that the facts mentioned in the charge sheet constitute one or more offences triable under Chapter XXI as warrant cases and also one or more other offences triable under Chapter XX The order of discharge being only in respect of the offences triable under Chapter XXI does not affect in any way the position that charges of offences triable under Chapter XX also are contained in the police report But says the learned counsel for the appellant the Magistrate cannot proceed with the trial of these other offences friable under Chapter XX because no cognizance has been taken of such other offences He contends that only after a fresh complaint has been made in respect of these offences triable under Chapter XX that the Magistrate can take cognizance and then proceed to try them after following the procedure prescribed by law This argument ignores the fact that when a Magistrate takes cognizance of offences under section 1901b Cr PC he takes cognizance of all offences constituted by the facts reported by the police officer and not only of some of such offences For example if the facts mentioned in the police report constitute an offence under section 379 IPC as also one under section 426 IPC the Magistrate can take cognizance not only of the offence under section 379 but also of the offence under section 426 In the present case the police report stated facts which constituted an offence under section 332 IPC but these facts necessarily consti 250 tute also a minor offence under section 323 IPC The Magistrate when he took cognizance under section 1901b Cr PC of the offence under section 332 IPC cannot but have taken cognizance also of the minor offence under section 323 IPC Consequently even after the order of discharge was made in respect of the offence under section 332 IPC the minor offence under section 323 of which he had also taken cognizance remained for trial as there was no indication to the contrary That being an offence triable under Chapter XX Cr CP the Magistrate rightly followed the procedure under Chapter XX The appeal is accordingly dismissed Appeal dismissed

In 1951 on account of the failure of the monsoon generation of electricity from the Hydro Electric System was affected and it was found necessary to reduce the consumption of electricity The Government of Bombay passed an order under section 6A1 of the Bombay Electricity Special Powers Act 1946 regulating the use of electrical energy and the respondent Mills were compelled to reduce the working time For the period during which the short working continued the workers claimed their wages and dearness allowances or compensation in lieu thereof The Industrial Court to which the matter was referred for arbitration under section 73 Of the Bombay Industrial Relations Act 1946 made an award directing all the respondent Mills to pay compensation to the employees The Mills pleaded that no compensation was payable because 1 the closure of the Mills was in pursuance of the directions made by the Government under the Bombay Electricity Special Powers Act 1946 and therefore section 111 of that Act barred the reference 2 the Industrial Court had no jurisdiction to entertain the claim for compensation as the matter was covered by Standing Orders 16 and 17 which were determinative of the relations between the workmen and their employers under section 401 of the Bombay Industrial Relations Act 1946 and 3 in any case no compensation was payable in view of the decision in Muir Mills Co Ltd vs Suti Mills Mazdoor Union Kanpur Held 1 that section 11 1 of the Bombay Electricity Special Powers Act 1946 barred only proceedings arising from the interference with the supply of electric energy and protected those who acted in pursuance of orders passed under that Act the section did not prevent the raising of an industrial dispute 2that Standing Orders 16 and 17 contemplated only cases of compensation in lieu of notice and wages for the period of closure and did not cover cases of compensation for closure that the provisions of section 73 of the Bombay Industrial Relations Act 1946 were wide enough to cover the reference in the present case and that the claim for compensation was not barred by Standing Orders 16 and 17 read with section 401 of the Act Digambar Ramachandra vs Khandesh Mills 1949 52 Bom LR 46 disapproved 232 3that the decision in Muir Mills Co Ltd vs Suti Mills Mazdoor Union Kanpur was concerned only with the award of bonus and was not applicable to the present case

Appeal No 108 of 1957 Appeal by special leave from the judgment and order dated February 16 1955 of the Bombay High Court in Income tax Reference No 35x of 1954 AV Viswanatha Sastri B K B Naidu and I N Shroff for the appellants C K Daphtary Solicitor General of India K N Rajagopal Sastri and D Gupta for the respondents March 15 The Judgment of the Court was delivered by HIDAYATULLAH J This is an appeal with the Hid special leave of this Court against the judgment and order dated February 16 1955 of the High Court of Bombay in an Income tax Reference under section 662 of the Indian Income tax Act The appellants are two assessees Charandas Haridas and Chinubhai Haridas whose cases are identical and in fact there was a consolidated reference by the Income tax Appellate Tribunal which was answered by the High Court by its judgment The respondents are respectively the Commissioner of Income tax Bombay North Kutch and Saurashtra and the Commissioner of Income tax Delhi Ajmer Rajasthan and Madhya Bharat The two appellants represented two units of Hindu undivided families Charandas Haridas represented his wife three sons and himself and Chinubhai Haridas represented his wife son and himself In stating the facts relative to the two families it will not be necessary to give them separately because the question which was answered by the High Court in the judgment under appeal arose in identical circumstances in the two families The only difference is in the shares held respectively by the two Hindu undivided families in the managing 298 agencies to be hereafter mentioned We will therefore confine ourselves to a statement of the facts relating to Charandas Haridas only Charandas Haridas was the Karta of the Hindu undivided family consisting of his wife three sons and himself He was a partner in six managing agency firms in six Mills In previous years the income received by him as partner in these managing agencies was being assessed as the income of the Hindu undivided family On December 31 1945 Charandas Haridas acting for his three minor sons and himself and Shantaben his wife entered into an oral agreement for a partial partition By that agreement Charandas Haridas gave an one pie share to his daughter Pratima in the managing agency commission from two of the six managing agencies held by the family The balance together with the shares in the other managing agencies was divided into five equal shares between Charandas Haridas his wife and sons This agreement was to come into effect from January 1 1946 which was the beginning of a fresh accounting year On September 11 1946 Charandas Haridas acting for himself and his minor sons and Shantaben executed a memorandum of partial partition in which the above facts were recited the document purporting to be a record of what had taken place orally earlier In the assessment years 1947 48 and 1948 49 Charandas Haridas claimed that the income should no longer be treated as the income of the Hindu undivided family but as the separate income of the divided members The Income tax Officer declined to treat the income as any but of the Hindu undivided family and assessed the income as before An appeal to the Appellate Assistant Commissioner was unsuccessful and the matter was taken to the Income tax Appellate Tribunal The Appellate Tribunal held that by the document in question the division if any was of the income and not of the assets from which the income was derived inasmuch as the agreements of the managing agency with the managed Companies did not undergo any change whatever as a result of the alleged partition The Appellate Tribunal 299 therefore held that the arrangement to share the receipts from this source of income was not binding on the Department if the assets themselves continued to remain joint It further held that the document was a farce and did not save the family from assessment as Hindu undivided family The Tribunal having declined to state a ease under section 661 of the Indian Income tax Act Charandas Haridas moved the Bombay High Court and obtained an order under section 662 of the Act The question on which the case was stated was Whether there were materials to justify the finding of the Tribunal that the income in the share of the commission agency of the Mills was the income of the Hindu undivided family The High Court stated that though the reference was very elaborately argued it raised a very simple question of fact and all that it was required to find out was whether there were materials before the Appellate Tribunal upon which the finding of fact could be rested The High Court held that though the finding given by the Appellate Tribunal could not be construed as a finding that the document was not genuine the method adopted by the family to partition the assets was insufficient to bring about the result intended by it According to the High Court the Appellate Tribunal war right in holding that the document was ineffective and though the income might have been purported to be divided and might in fact have been so divided the source of income still remained united as belonging to the Hindu un divided family It accordingly answered the question in the affirmative holding that there were materials before the Tribunal on which it could reach the conclusion that in so far as these income bearing assets were concerned they still belonged to the Hindu undivided family Leave to appeal to this Court was refused by the High Court but Charandas Haridas applied to this Court and obtained special leave and the present appeal was filed Mr Viswanatha Sastri appearing for Charandas Haridas pointed out that a Hindu undivided family cannot be a partner of a firm Charandasa Haridas 300 therefore though he represented the Hindu undivided family in his capacity as a partner could not insist that the other members of the family be received as partners or admitted to the benefits of partnership The only mode in which the partition could be made was to divide the income and this bad the necessary effect in law of dividing the assets if not for the purposes of the Partnership Act at least for the purposes of assessing income tax lie therefore contended that the Hindu undivided family which had ceased to exist in so far as these assets were concern ed could not be assessed as such after January 1 1946 the date from which the partition was effective The learned Solicitor General for the Department contended that the argument itself involved the assumption that the assets were not in fact divided and since income tax was payable at the moment of time when income accrued this income must be taken to have accrued to the Hindu undivided family and its subsequent partition into five or six shares did not affect the position Before we deal with these arguments it is necessary to quote the operative portion of the document which is as follows Re Partial partition of the Hindu Undivided Family of Charandas Haridas of Ahmedabad We the undersigned Sheth Charandas Haridas by himself and as the guardian of minors Rameshchandra Charandas Anilkumar Charandas and Gautamkumar Charandas and Shantaben Charandas all residing in Shahibaug Ahmedabad make this memorandum Nondh that we have a Hindu undivided family and Sheth Charandas Haridas manages our family s joint property as Karta or Manager and all of us as members of the joint undivided family are entitled to our joint undivided family as Malik Our family received a commission of Re 0 1 11 5112 from the Vijaya Mills Co Ltd and out of this commission Sheth Charandas Haridas as Karta or Manager of the family has given already a commission of one pie to Pratima the daughter of the family So also out of the commission of Re 0 2 12 received by the family from the Gopal 301 Mills Co Ltd Sheth Charandas Haridasas Karta and Manager has given already to Pratima one pie commission After deducting these Re 0 1 10 512 and Re 0 1 11 commission remained These commissions and other commission received from various other mills have been partitioned orally by us on Samvat Year 2002 Magsar Vadi 12 dated 31st December 1945 By this partition we decided that whatever commission fell due till 31 12 45 and which is received after 31 12 45 should be kept joint and in respect of the commission which accrues from 1 1 46 and received after that date each of us become absolute owner of his one fifth share and therefore from the dateie from 1 1 46 these commissions cease to be the joint property of our family But it is our desire that we should keep a memorandum for our memory of the oral partial partition effected on Samvat Year 2002 Magsar Vadi 12 dated 31 12 45 pursuant to which we have partitioned the commissions to be received by our family Because of this we keep this note The document no doubt mentions a commission in respect of each of the six managing agencies which commission was divided by the document The word commission however has been used in two different senses sometimes it refers to the amount of the managing agency commission to be received by Charandas Haridas and sometimes to the right to that commission which Charandas Haridas bad as a partner The sole question is whether the source was effectively divided for purposes of the Income tax law so that the assessment could not be made upon a Hindu undivided family The law was stated by Mayne and approved by the Privy Council in Pichappa vs Chokalingam in the following words Where a managing member of a joint family enters into a partnership with a stranger the other members of the family do not ipso facto become partners in the business so as to clothe them with all the rights and obligations of a partner as defined by the Indian Contract Act In such a case the 1 AIR 1934 PC 192 39 302 family as a unit does not become a partner but only such of its members as in fact enter into a contractual relation with the stranger the partnership will be governed by the Act Further the Privy Council in Appovier vs Rama Subba Aiyan 1 observed Nothing can express more definitely a conversion of the tenancy and with that conversion a change of the status of the family quad this property The produce is no longer to be brought to the common chest as representing the income of an undivided property but the proceeds are to be enjoyed in six distinct equal shares by the members of the family who are thenceforth to become entitled to those definite shares The Bombay High Court quoted this passage and stated that there must be a division of the right as well as a division of the property and unless the division effected a separation of the property into shares it would remain only as a separation of the income after its accrual and would not affect the asset as such In this view of the matter the Bombay High Court held that the asset continued to be joint in spite of the division of the income after its accrual In our opinion here there are three different branches of law to notice There is the law of Partnership which takes no account of a Hindu undivided family There is also the Hindu law which permits a partition of the family and also a partial partition binding upon the family There is then the Income tax law under which a particular income may be treated as the income of the Hindu undivided family or as the income of the separated members enjoying separate shares by partition The fact of a partition in the Hindu law may have no effect upon the position of the partner in so far as the law of Partnership is concerned but it has full effect upon the family in so far as the Hindu law is concerned Just as the fact of a Karta becoming a partner does not introduce the members of the undivided family into the partnership the division of the family does not change the position of the partner Vis a vis the other partner or partners The Income 1 1866 11 MIA 75 303 tax law before the partition takes note factually of the position of the Karta and assesses not him qua partner but as representing the Hindu undivided family In doing so the Income tax law looks not to the provisions of the Partnership Act but to the provisions of Hindu law When once the family has disrupted the position under the partnership continues as before but the position under the Hindu law changes There is then no Hindu undivided family as a unit of assessment in point of fact and the income which accrues cannot be said to be of a Hindu undivided family There is nothing in the Indian Income tax law or the law of Partnership which prevents the members of a Hindu joint family from dividing any asset Such division must of course be effective so as to bind the members but Hindu law does not further require that the property must in every case be partitioned by metes and bounds if separate enjoy ment can otherwise be secured according to the shares of the members For an asset of this kind there was no other mode of partition open to the parties if they wished to retain the property and yet hold it not jointly but in severally and the law does not contemplate that a person should do the impossible Indeed the result would have been the same even if the dividing members had said in so many words that they had partitioned the assets because in so far as the firms were concerned the step would have been wholly inconsequential The respondent suggested that the family could have partitioned the managing agencies among the members of the family by balloting them severally but that would not have been possible without a dissolution of the managing agency firms and their reconstitution which was not altogether in the hands of Charandas Haridas It was also suggested that the managing agencies could have been allotted to Charandas Haridas while the others took some other property or a receiver could have been appointed No doubt there were many modes of partition which might have been adopted but the question remains that if the family desired to partition these assets only and no more could they have acted in some other manner 304 to achieve the same result No answer to this question was attempted It is therefore manifest that the family took the fullest measure possible for dividing the joint interest into separate interests There is no suggestion here that this division was a mere pretence nor has the Appellate Tribunal given such a finding The document was fully effective between the members of the family and there was factually no Hindu undivided family in respect of these particular assets The assets at all times stood in the name of Charandas Haridas and looked at from the point of view of the law of Partnership the family had no standing The assets still are in the name of Charandas Haridas and looked again from the same viewpoint the division has no different signification What has altered is the status of the family While it was joint the Department could treat the income as that of the family but after partition the Department could not say that it was still the income of the Hindu undivided family when there was none In the face of the finding that this was a genuine document and not a sham and that it effectually divided the income and in the circumstances the assets the question answers itself in the negative that is to say that there were no materials to justify the finding that the income in the share of the commission agency of the Mills was the income of the Hindu undivided family The appeal will be allowed The respondents will pay the costs of the two assessees here and below There will be only one set of costs here Appeal allowed

The respondent a stenographer employed by the appellant at its head office in Bombay challenged the legality and pro priety of the dismissal order passed against him by an application under the provisions of the Bombay Industrial Relations Act 1946 and contended that the Notification No 1131 46 issued by the Government of Bombay in 1952 under section 24 of the said Act brought within its purview the head office of the appellant which was dealing in Sugar Industry The appellant challenged the competency of the application on the ground that the Act did not apply to the respondent s case and the Labour Court had no jurisdiction as the Notification did not apply to the head office of the appellant Held that on a proper construction of the Notification it cannot be said that the Government of Bombay intended to extend the scope of the Notification to the head office of a Sugar Industry The Notification did not bring within its purview the sugar industry as such but the manufacture of sugar and its by products the object being to confine its benefits to service or employment which was connected with the manufacture of sugar and its by products including the growing of sugar canes and all agricultural and industrial operations connected with the growing of sugarcane

minal Appeal No 159 of 1957 Appeal by special leave from the judgment and order dated February 14 1956 of the Bombay High Court in Criminal Appeal No 1232 of 1955 arising out of the judgment and order dated October 3 1955 of the Additional Sessions Judge for Greater Bombay in Case No 38 V Sessions 1955 Purshottam Tricumdas B K B Naidu and I N Shroff for appellant No 1 Appellant No 2 did not appear H J Umrigar R H Dhebar and T M Sen for the respondent March 16 The Judgment of the Court was delivered by SHAH J At a trial held with the aid of a common jury in Case No 38 of the Vth Session 1955 before the 321 Additional Sessions Judge City Court Greater Bombay the two appellants were convicted of offences under section 409 read with section 34 of the Indian Penal Code The Additional Sessions Judge sentenced the first appellant to suffer rigorous imprisonment for five years and the second appellant to suffer rigorous imprisonment for four years In appeal the High Court of Bombay reviewed the evidence because in the view of the Court the verdict of the jury was vitiated on account of a misdirection on a matter of substantial importance but held that the conviction of the two appellants for the offence under section 409 read with section 34 of the Indian Penal Code was on the evidence not liable to be set aside The High Court accordingly confirmed the conviction of the two appellants but reduced the sentence passed upon the first appellant to rigorous imprisonment for three years and the sentence against the second appellant to rigorous imprisonment for one year Against the order of conviction and sentence the appellants have appealed to this court with special leave The facts which gave rise to the charge against the two appellants are briefly these On June 15 1948 the Textile Commissioner invited tenders for dyeing Pugree Cloth The Parikh Dyeing and Printing Mills Ltd Bombay hereinafter to be referred to as the company of which the first appellant was the Managing Director and the second appellant was a Director and technical expert submitted a tender which was accepted on July 27 1948 subject to certain general and special conditions Pursuant to the contract 251059 34 yards of cloth were supplied to the company for dyeing The company failed to dye the cloth within the stipulated period and there was correspondence in that behalf between the company and the Textile Commissioner Approximately 111000 yards out of the cloth were dyed and delivered to the Textile Commissioner On March 25 1950 the company requested the Textile Commissioner to cancel the contract and by his letter dated April 3 1950 the Textile Commissioner complied with the request and cancelled the contract in respect of 96128 yards On November 20 1950 the contract was cancelled by the 322 Textile Commissioner in respect of the balance of cloth and the company was called upon to give an account without any further delay of the balance undelivered and it was informed that it would be held responsible for material spoiled or not accounted for On December 4 1950 the company sent a statement of account setting out the quantity of cloth actually delivered for dyeing the quantity of cloth returned duly dyed and the balance of cloth viz 132160 yards remaining to be delivered Against the cloth admitted by the company remaining to be delivered it claimed a wastage allowance of 2412 yards and admitted liability to deliver 129748 yards lying with it on Government account It appears that about this time the company was in financial difficulties In December 1950 the first appellant left Bombay to take up the management of a factory in Ahmedabad and the affairs of the company were managed by one R K Patel In June 1952 an application for adjudicating the two appellants insolvents was filed in the Insolvency Court at Ahmedabad An insolvency notice was also taken out against the two appellants at the instance of another creditor in the High Court at Bombay Proceedings for winding up the company were commenced in the High Court at Bombay In the meantime the mortgagee of the machinery and factory of the company had entered into possession under a covenant reserved in that behalf of the premises of the factory of the company The Textile Commissioner made attempts to recover the cloth remaining undelivered by the company A letter was posted by the Textile Commissioner on April 16 1952 calling upon the company to deliver 51756 yards of cloth lying with it in bleached condition to the Chief Ordnance Officer Ordnance Depot Sewri but the letter was returned undelivered It was ultimately served with the help of the police on the second appellant in October 1952 Thereafter on November 7 1952 another letter was addressed to the company and the same was served on the second appellant on November 25 1952 By this letter the company was reminded that 135726 34 yards of cloth 323 were lying with it on account of the government and the same had to be accounted for and that the instructions to deliver 51756 yards to the Chief Ordnance Officer Ordnance Depot Sewri had not been attended to The Textile Commissioner called upon the company to send its representatives to clarify the position and to account for the material After receiving this letter the second appellant attended at the office of the Textile Commissioner and on November 27 1952 wrote a letter stating that the main factors involved in not delivering the goods in finished state was that the material was very old was dhobibleached in different lots was bleached under different conditions and therefore unsuitable for vat colour dyeing in heavy shades that it varied in length weight and finish and had lost affinity for vat colour dyeing It was also stated that the company had in dyeing the basic material suffered huge losses estimated at Rs 40000 It was then stated We are therefore however prepared to co operate with the Government and are willing to make good the government s bare cost Please let us know the detail and the actual amount to be deposited so that we may do so at an early date We shall thank you if we are given an appointment to discuss the matter as regards the final amount with respect to the balance quantity of the basic material On December 29 1952 the premises of the company and the place of residence of the appellants were raided but no trace of the cloth was found A complaint was then filed with the police charging the two appellants with criminal breach of trust in respect of 1324041 yards of cloth belonging to the Government There is no dispute that approximately 130000 yards out of the cloth entrusted to the company by the Textile Commissioner for dyeing has not been returned By its letter dated December 4 1950 the company admitted liability to deliver 129748 yards of cloth but this cloth has not been returned to the Textile Commissioner in spite of repeated demands That the appellants as directors of the company had dominion over that cloth was not questioned in the trial court The plea that there were other Directors 324 of the company besides the appellants who had dominion over the cloth has been negatived by the High Court and in our judgment rightly Direct evidence to establish misappropriation of the cloth over which the appellants had dominion is undoubtedly lacking but to establish a charge of criminal breach of trust the prosecution is not obliged to prove the precise mode of conversion misappropriation or misapplication by the accused of the property entrusted to him or over which he has dominion The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof entrustment of property and failure in breach of an obligation to account for the property entrusted if proved may in the light of other circumstances justifiably lead to an inference of dishonest misappropriation or conversion Conviction of a person for the offence of criminal breach of trust may not in all cases be founded merely on his failure to account for the property entrusted to him or over which he has dominion even when a duty to account is imposed upon him but where he is unable to account or renders an explanation for his failure to account which is untrue an inference of misappropriation with dishonest intent may readily be made In this case on a search of the factory on December 29 1952 the cloth remaining to be delivered by the company was not found At the trial the appellants sought to explain the disappearance of the cloth from the factory premises where it was stored on the plea that it was old and was eaten up by white ants and moths and had been thrown away as rubbish This plea of the appellants was not accepted by the High Court and we think rightly No information was given at any time to the Textile Commissioner after December 4 1950 that the cloth had been eaten up by white ants and moths and was therefore thrown away or otherwise destroyed Nor was any evidence led in support of the plea by the appellants In this court counsel for the first appellant contended that failure to return the cloth may give rise to a civil liability to make good the loss occasioned 325 thereby but in the circumstances of the case the first appellant cannot be found guilty of the offence of criminal breach of trust Counsel submitted that the first appellant had left Bombay in 1950 and had settled down in Ahmedabad and was attending to a factory in that town that thereafter the first appellant was involved in insolvency proceedings and was unable to attend to the affairs of the company in Bombay and if on account of the pre occupation of the first appellant at Ahmedabad he was unable to visit Bombay and the goods were lost no criminal misappropriation can be attributed to him But the case pleaded by the appellant negatives this submission The first appellant in his statement before the trial court admitted that he often went to Bombay even after he had migrated to Ahmedabad and that he visited the mill premises and got the same opened by the Gurkha watchman and he found that the heap of cloth lying in the mill was getting smaller every time he visited the mill and on inquiry he was told by the watchman that every day one basketful of sweepings was thrown away He also stated that he was shown several places in the compound of the factory where pits had been filled up with these sweepings and that he found a small heap lying by the side of the Tulsipipe gutter and also in the warehouses in the mill premises It is clear from this statement and other evidence on the record that even after he migrated to Ahmedabad the first appellant was frequently visiting the factory at Bombay The evidence also discloses that meetings of Directors were held from time to time but the minutes of the Directors meetings have not been produced The books of account of the company evidencing disbursements to the Directors of remuneration for attending the meetings and the expenses for the alleged collection and throwing away of the sweepings have not been produced It is admitted by the first appellant that the letter dated November 27 1952 was written by the second appellant under his instructions In his statement at the trial the first appellant stated that he was informed of the letter dated November 26 1952 from the Textile Commissioner and that he 42 326 could not attend the office of that officer because he was busy attending to the insolvency proceedings and that he deputed the second appellant to attend the office and to explain and discuss the position Be then stated We had informed the Commissioner that the company was prepared to pay for the cloth remaining after deducting the amount claimed as damages The letter dated November 27 1952 was evidently written under the direction of the first appellant and by that letter liability to pay for the cloth after certain adjustments for losses alleged to be suffered by the company in carrying out the contract was admitted By the letter dated December 4 1950 liability to deliver the cloth was admitted and by the letter dated November 27 1952 liability to pay compensation for the loss occasioned to the Government was affirmed The appellants who were liable to account for the cloth over which they had dominion have failed to do so and they have rendered a false explanation for their failure to account The High Court was of the opinion that this false defence viewed in the light of failure to produce the books of account the stock register and the complete absence of reference in the correspondence with the Textile Commissioner about the cause of disappearance established misappropriation with criminal intent Counsel for the first appellant contended that probably the goods passed into the possession of the mortgagees of the assets of the company but on this part of the submission no evidence was led in the trial court Counsel for the first appellant relying upon the observations in Shreekantiah Ramayya Munipalli vs The State of Bombay 1 also contended that in any event a charge under section 409 read with section 34 of the Indian Penal Code cannot be established against the first appellant unless it is shown that at the time of misappropriation of the goods the first appellant was physically present But the essence of liability under s34 is to be found in the existence of a common intention animating the offenders leading to the doing of a criminal act in furtherance of the 1 327 common intention and presence of the offender sought to be rendered liable under section 34 is not on the words of the statute one of the conditions of its applicability As explained by Lord Sumner in Barendra Kumar Ghose vs The King Emperor the leading feature of section 34 of the Indian Penal Code is participation in action To establish joint responsibility for an offence it must of course be established that a criminal act was done by several persons the participation must be in doing the act not merely in its planning A common intention a meeting of minds to commit an offence and participation in the commission of the offence in furtherance of that common intention invite the application of section 34 But this participation need not in all cases be by physical presence In offences involving physical violence normally presence at the scene of offence of the offenders sought to be rendered liable on the principle of joint liability may be necessary but such is not the case in respect of other offences where the offence consists of diverse acts which may be done at different times and places In Shree Kantiah s case supra misappropriation was committed by removing goods from a Government depot and on the occasion of the removal of the goods the first accused was not present It was therefore doubtful whether he had participated in the commission of the offence and this court in those circumstances held that participation by the first accused was not established The observations in Shree Kantiah s case supra in so far as they deal with section 34 of the Indian Penal Code must in our judgment be read in the light of the facts established and are not intended to lay down a principle of universal application The High Court has found that the two appellants were liable to account for the cloth over which they had dominion and they failed to account for the same and therefore each had committed the offence of criminal breach of trust The High Court observed In such a case if accused Nos 1 and 2 Appellants 1 2 alone were concerned with the receipt of the goods if they were dealing with the goods all the time if they were receiving communications from the Textile Commissioner s office and sending replies to 1 1924 LR 52 IA 40 52 328 them and if the part played by each of them is apparent from the manner in which they are shown to have dealt with this contract then it is a case of two persons entrusted with the goods and a breach of trust obviously being committed by both of them It was submitted that the High Court erred in finding the appellants guilty of offences under section 409 of the Indian Penal Code when the charge framed against them was one under section 409 read with section 34 of the Indian Penal Code A charge framed against the accused person referring to section 34 is but a convenient form of giving notice to him that the principle of joint liability is sought to be invoked Section 34 does not create an offence it merely enunciates a principle of joint liability for criminal acts done in furtherance of the common intention of the offenders Conviction of an accused person recorded relying upon the principle of joint liability is therefore for the offence committed in furtherance of the common intention and if the reasons for conviction establish that the accused was convicted for an offence committed in furtherance of the common intention of himself and others a reference in the order recording conviction to section 34 of the Indian Penal Code may appear to be asurplusage The order of the High Court recording the conviction of the appellants for the offence under section 409 of the Indian Penal Code is therefore not illegal It was submitted for the first appellant that the sentence passed against him was unduly severe and that in any event no distinction should have been made between him and the second appellant in the matter of sentence It is evident on the findings accepted by us that property of considerable value has been misappropriated by the first appellant He was the Managing Director of the company an primarily he had dominion over the property entrusted to the company The second appellant was though a Director essentially a technician Having regard to these circumstances if the High Court has made a distinction between the two appellants we ought not to interfere with the sentence which by itself cannot be said to be excessive The appeal fails and is dismissed Appeal dismissed

A Criminal case was instituted in the court of a Magistrate at Calcutta against the appellant under section 332 of the Indian Penal Code for voluntarily causing hurt to the Bailiff of Calcutta Corporation and another After hearing both sides the Magistrate was of the opinion that the charge under section 332 could not be sustained but as there was evidence to establish a Prima facie case under section 323 of the Indian Penal Code he charged the appellant under that section The appellant pleaded not guilty and 1 32 246 claimed to be tried and submitted that in view of the provisions Of section 251A2 of the Criminal Procedure Code he should have been acquitted and the trial for the offence under section 323 Indian Penal Code could not be proceeded with The Magistrate rejected the contention and convicted the appellant On the question whether a magistrate after making an order of discharge under section 251A2 of the Criminal Procedure Code in respect of a charge of an offence triable as a warrant case can still proceed to try the accused for another offence which would be made out from the police report Held that an order of discharge made by the Magistrate in exercise of the powers under sub section 2 Of section 251A does not mean the discharge of the accused in respect of all the offences which the facts mentioned in the police report would make out The order of discharge being only in respect of the offences triable under Chapter XXI does not affect in any way the position that charges of offences triable under Chapter XX also are contained in the police report In the instant case even after the order of discharge was made in respect of the offence under section 332 Of the Indian Penal Code the minor offence under section 323 of which the Magistrate bad also taken cognizance remained for trial as there was no indication to the contrary That being an offence triable under Chapter XX of the Code of Criminal procedure the Magistrate rightly followed the procedure under Chapter XX When a Magistrate takes cognizance under section 1901b of the Criminal Procedure Code he takes cognizance of all offences constituted by the facts reported by the Police Officer and not of some only out of those offences

Civil Appeals Nos 143 144 of 1959 and 545 of 1958 Appeals by special leave from the Award dated December 14 1957 of the State Industrial Court at Nagpur in Industrial References Nos 18 of 1956 and I of 1957 respectively C B Aggarwala section N Andley J B Dadachanji Rameshwar Nath and P L Vohra for the appellants in all the appeals A V Viswanatha Sastri WS Barlingay section W Dhabe Shanker Anand and A G Ratnaparkhi for respondent No 2 in C A No 14459 and respondent in C A No 143 of 1959 H R Khanna and R H Dhebar for respondent No 3 in CA No 14459 945 A V Viswanatha Sastri W section Barlingay Shankar Anand and A G Ratnaparkhi for the respondents in CA No 545 of 1958 1960 Feb 10 The Judgment of the Court was delivered by SUBBA RAO J This batch of three connected appeals raises the question whether and to what extent the activities of the Corporation of the City of Nagpur come under the definition of industry in section 214 of the CP Berar Industrial Disputes Settlement Act 1947 hereinafter called the Act The appellant is the Corporation of the City of Nagpur constituted under the City of Nagpur Corporation Act 1948 Madhya Pradesh Act No 2 of 1950 Disputes arose between the Corporation and the employees in various departments of the Corporation in respect of wage scales gratuity provident fund house rent confirmation allowances etc The Government of the State of Madhya Pradesh by its order dated October 23 1956 referred the said disputes under section 39 of the Act to the State Industrial Court Nagpur and the reference was numbered as Industrial Reference No 18 of 1956 The appellant filed a statement before the Industrial Court questioning the jurisdiction of that Court inter alia on the ground that the Corporation was not an industry as defined by the Act On February 13 1957 the Industrial Court made a preliminary order holding that the Corporation was an industry and that the further question whether any department of the Corporation was an industry or not would be decided on the evidence The appellant challenged the correctness of that order by filing a petition under article 226 of the Constitution in the High Court of Bombay at Nagpur but that petition was dismissed as the award was made before its hearing On June 3 1957 the Industrial Court made an award holding that the Corporation was an industry and further that all departments of the Corporation were covered by the said definition It also revised the pay scales of the employees and accepted the major demands made by them On July 15 1957 the appellant again filed a petition in the High Court of Bombay at Nagpur 946 questioning the validity and the correctness of the aid award A division bench of the said High Court by its order dated September 11 1957 rejected the contention of the appellant that the Corporation was not an industry as defined by the Act and remanded the case to the State Industrial Court to decide the activities of which departments of the Corporation fell within the definition of industry given in the Act and to re examine the schedules and categories of persons and to restrict the award to the persons concerned within the definition of the word industry in the Act On remand the said Industrial Court scrutinized the activities of each of the departments of the Corporation and hold that all the departments of the Corporation except those dealing with i assessment and levy of house tax ii assessment and levy and pulling down of dilapidated houses iv prevention and control of food adulteration and v maintenance of cattle pounds were covered by the definition of industry under the Act It further gave findings in regard to the disputes between be parties and also as to the persons entitled to the reliefs It is not necessary to give the particular of the findings arrived at or the relief given by the Industrial Court as nothing turns upon them in this appeal The appellant by special leave filed in this Court Civil Appeal No 143 of 1959 against the award of the Industrial Court It also filed in this Court by special leave Civil Appeal No 144 of 1959 against the order of the High Court holding that the activities of the Corporation came under the definition of industry in the Act and remanding the case to the Industrial Court for decision on merits in respect of each of the activities of the Corporation Civil Appeal No 545 of 1958 the third appeal in this batch arises out of a reference made by the State Government of Madhya Pradesh in regard to the disputes between the appellant ie the Corporation of the City of Nagpur and the employees of the Corporation in the Fire Brigade Department representing themselves and other employees The said reference was numbered as Industrial Reference No 1 947 of 1957 As there was overlapping of the disputes raised in Industrial Reference No 18 of 1956 and Industrial Reference No 1 of 1957 the Industrial Court heard both the references together and by consent the evidence in Reference No 18 of 1956 was treated as evidence in Reference No 1 of 1957 On December 14 1957 an award was made in Reference No 1 of 1957 and it was based on the findings in the award made in Reference No 18 of 1956 The Industrial Court held that the Fire Brigade Department was an industry within the meaning of the Act and on that basis gave the necessary reliefs to the employees Mr Aggarwala learned counsel appearing for the appellant in the first two appeals raised before us the following points 1 No service rendered by the Corporation would be an industry as defined by section 214 of the Act 2 Assuming that some of the services of the Corporation are comprehended by the definition of industry in the Act the said services in order to satisfy the definition must be analogous to a business or trade 3 Even otherwise the activities of the Corporation to be called industry must partake the common characteristics of an industry 4 The finding of the Industrial Court holding that the various departments of the Corporation are industries is not correct as the services rendered by the said departments do not satisfy either of the aforesaid two tests The first question need not detain us for it has now been finally decided by two decisions of this Court against the appellant In D N Banerji vs P R Mukherjee 1 the chairman of a municipality dismissed two of its employees namely the Sanitary Inspector and the Head Clerk and the Municipal Workers Union questioned the propriety of the dismissal and claimed that they should be reinstated and the matter was referred by the Government to the Industrial Tribunal for adjudication under the In that case two questions were raised before this Court one was whether the said dispute was industrial dispute within the 948 meaning of section 2j of the and the other was whether the was invalid inasmuch as it allowed the Tribunal to reinstate employees and to that extent trenched on the power of the chairman to appoint and dismiss employees This Court held that the Act was not invalid as it was in pith and substance a law in respect of industrial and labour disputes and that the conservancy service rendered by the municipality was an industry and the dispute between the municipality and the employees of the conservancy department was an industrial dispute within the meaning of the This decision was followed by this Court in Baroda Borough Municipality vs Its Workmen 1 In that case the effect of the earlier decision was summarized thus at p 38 It is now finally settled by the decision of this Court in D N Banerji vs P R Mukherjee 2 that a municipal undertaking of the nature we have under consideration here is an industry within the meaning of the definition of that word in section 2j of the and that the expression industrial dispute in that Act includes disputes between municipalities and their employees in branches of work that can be regarded as analogous to the carrying on of a trade or business In that case the workmen employed in the electricity department of the Baroda Municipality demanded bonus The electricity undertaking of the Baroda Municipality was held to be an industry and the dispute between the Municipality and its employees an industrial dispute Bonus was refused on other grounds and we are not concerned with that aspect of the case here These two cases therefore have finally and authoritatively held that municipal undertakings could be industry within the meaning of the A faint argument is attempted to sustain a distinction between the definition of an industry in the and the definition of the same word in the Act in question Section 2j of the 1 2 949 defines industry to mean any business trade undertaking manufacture or calling of employers and to include any calling service employment handicraft or industrial occupation or avocation of workmen Section 214 of the Act divides the definition into three parts namely a any business trade manufacturing or mining undertaking or calling of employers b any calling service employment handicraft or industrial occupation or avocation of employees and c any branch of an industry or a group of industries A comparative study of these two sections brings out the following differences While the definition of industry in the means certain things and includes others the definition of industry in the Act includes the three categories described therein while the definition in the former Act places undertaking in a category different from manufacturing or mining in the latter Act it is qualified by the words manufacturing or mining In our view these differences do not justify us in taking a different view from that accepted by this Court in the foregoing decisions Clause a of the definition defines industry with reference to the employers and cl b with reference to the employees Excluding the words manufacturing or mining undertaking from cl a of the definition the other words in cls a and b thereof are comprehensive enough to take in all the categories which the definition of industry in the will take in That apart a perusal of the decision of this Court in D N Banerji vs P R Mukherjee 1 does not indicate that this Court would have come to a different conclusion if the word undertaking in the was qualified by the words manufacturing or mining The decision was founded on a broader basis having regard to the history of the legislation the cognate definitions in the Act and the inclusive part of the definition corresponding to section 214b of the Act We therefore hold that a service rendered by a corporation if it complies with the conditions implicit in the definition which we would consider at a later stage 1 950 of the judgment will bean industry within th meaning of the definition in the Act The next question is whether activity of the Corporation is not industry unless it shares the common characteristics of an industry The following five characteristics are stated to be the conditions implicit in the definition i the activity must concern the production or distribution of good or services ii it must be to serve others but not to oneself iii it must involve co operative effort between employer and employer between capital an labour iv it must be done as a commercial transaction and v it must not be in exercise of pure governmental functions We have considered this aspect in State of Bombay vs The Hospital Maazdoor Sabha 1 in the context of the definition of industry in the and formulated certain broad principles But as this case is concerned with the definition of industry in a different Act we shall briefly resurvey the law on the subject with specific reference to a corporation Let us scrutinize the definition of industry to ascertain whether all or some of the conditions are implicit in the definition and whether the said conditions constitute the necessary basis for it The true meaning of the section must be gathered from the expressed intention of the Legislature Maxwell in his book On the Interpretation of Statutes 10th Edn rightly points out at p 2 that If the words of the statute are in themselves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense the words themselves in such case best declaring the intention of the legislature The words used in the section are clear and unambiguous and they prima facie are of the widest import We have pointed out that the section is in two parts cl a defines industry with reference to employers and cl b defines it with reference to employees Clause c extends the definition to any branch of an industry or a group of industries ie industries Coming within the definition of cls a and b It is said that in 11960 2 SCR 866 951 construing the definition we must adopt the rule of construction noscuntur a sociis Maxwell explains this doctrine at p 332 thus When two or more words which are susceptible of analogous meaning are coupled together noscuntur a sociis They are understood to be used in their cognate sense They take as it were their colour from each other that is the more general is restricted to a sense analogous to the less general On the basis of this doctrine it is argued that the words following the words any business trade manufacturing or mining undertaking shall partake the characteristics of any business trade manufacturing or mining undertaking and the words any calling service employment handicraft or industrial occupation or avocation of employees shall share the qualities of an industrial occupation or avocation In other words the general word calling in cl a is controlled by the words preceding it and the general words calling service etc in cl b are restricted by the succeeding words industrial occupation or avocation This doctrine was dealt with by this Court in State of Bombay vs The Hospital Mazdoor Sabha 1 Therein this Court has considered the scope of this doctrine and has observed thus It must be borne in mind that noscuntur a sociis is merely a rule of construction and it cannot prevail in cases where it is clear that the wider words have been deliberately used in order to make the scope of the defined word correspondingly wider It is only where the intention of the Legislature in associating wider words with words of narrower significance is doubtful that the present rule of construction can be usefully applied It can also be applied where the meaning of the words of wider import is doubtful but where the object of the Legislature in using wider words is clear and free of ambiguity the rule of construction in question cannot be pressed into service The said doctrine therefore cannot be invoked in cases where the intention of the Legislature is clear and free of ambiguity The phraseology used in the 1 952 section is very clear and it is not susceptible of any ambiguity The words used in the first part of cl b are unqualified and the qualification is introduced only in the later part If the words calling service employment handicraft are really intended to be qualified by the adjective industrial one should expect the Legislature to affix the adjective to the first word calling rather than to the last word occupations The inclusive definition is a wellrecognized device to enlarge the meaning of the word defined and therefore the word industry must be construed as comprehending not only such things as it signifies according to its natural import but also those things the definition declares that it should include see Stroud s Judicial Dictionary Vol 2 p 1416 So construed every calling service employment of an employee or any business trade or calling of an employer will be an industry But such a wide meaning appears to overreach the objects for which the Act was passed It is therefore necessary to limit its scope on permissible grounds having regard to the aim scope and the object of the whole Act To arrive at the real meaning of the words Lord Coke in Heydon s case 1 says that the following matters are to be considered 1 What was the law before the Act was passed 2 What was the mischief or defect for which the law had not provided 3 What remedy Parliament hap appointed and 4 The reason of the remedy The word employers in el a and the word employees in cl b indicate that the fundamental basis for the application of the definition is the existence of that relationship The cognate definitions of industrial dispute employer employee also support it The long title of the Act as well as its preamble show that the Act was passed to make provision for the promotion of industries and peaceful and amicable settlement of disputes between employers and employees in an organized activity by conciliation and arbitration and for certain other purposes If the preamble is read with the historical background for the passing of the Act it is manifest that the Act was introduced as an 11584 b 953 important step in achieving social justice The Act seeks to ameliorate the service conditions of the workers to provide a machinery for resolving their conflicts and to encourage co operative effort in the service of the community The history of labour legislation both in England and India also shows that it was aimed more to ameliorate the conditions of service of the labour in organized activities than to anything else The Act was not intended to reach the personal services which do not depend upon the employment of a labour force Before considering the positive aspects of the definition what is not an industry may be considered However wide the definition of industry may be it cannot include the regal or sovereign functions of State This is the agreed basis of the arguments at the Bar though the learned counsel differed on the ambit of such functions While the learned counsel for the Corporation would like to enlarge the scope of these functions so as to comprehend all the welfare activities of a modern State the learned counsel for the respondents would seek to confine them to what are aptly termed the primary and inalienable functions of a constitutional government It is said that in a modern State the sovereign power extends to all the statutory functions of the State except to the business of trading and industrial transactions undertaken by it in its quasi private personality Sustenance for this contention is sought to be drawn from Holland s Jurisprudence wherein the learned author divides the general heading Public Law into four sab heads and under the sub head Administrative Law he deals with a variety of topics including welfare and social activities of a State The treatment of the subject Public Law by Holland and other authors in our view has no relevancy in appreciating the scope of the concept of regal powers which have acquired a definite connotation Lord Watson in Coomber vs Justices of Berks 1 describes the functions such as administration of justice maintenance of order and repression of crime as among the primary and inalienable functions of a constitutional Govern 11883 84 9 App Cas 61 74 954 ment Isaacs J in his dissenting judgment in The Federated State School Teachers Association of the Australia vs The State of Victoria 1 concisely states thus at p 585 Regal functions are inescapable and inalienable Such are the legislative power the administration of laws the exercise of the judicial power Non regal functions may be assumed by means of the legislative power But when they are assumed the State acts simply as a huge corporation with its legislation as the charter Its action under the legislation so far as it is not regal execution of the law is merely analogous to that of a private company similarly authorised These words clearly mark out the ambit of the regal functions as distinguished from the other powers of a State It could not have been therefore in the contemplation of the Legislature to bring in the regal functions of the State within the definition of industry and thus confer jurisdiction on Industrial Courts to decide disputes in respect thereof We therefore exclude the regal functions of a State from the definition of industry This leads us to the question whether the Corporation can be said to exercise regal functions by legislative delegation The Corporation functions under a statute and its powers duties and liabilities are regulated by it It is a juristic person and it can sue and be sued in its name The statute constituting it may confer upon it some strictly regal functions and other municipal functions In County Council of Middlesex vs Assessment Committee of St George s Union 2 certain premises were used for the administration of justice and also for municipal purposes The question raised was whether the said premises were rateable and the Court held that they were rateable in so far as they were occupied for municipal purposes and not rateable in so fares they were occupied for the administration of justice which was held to be a function of the Crown So too the Supreme Court of America in Verisimo Vasquez Vilas 1 2 955 vs City of Manila 1 expounded the dual character of a municipal corporation thus They exercise powers which are governmental and powers which are of a private or business character In the one character a municipal corporation is a governmental sub division and for that purpose exercises by delegation a part of the sovereignty of the State In the other character it is a mere legal entity or juristic person In the latter character it stands for the community in the administration of local affairs wholly beyond the sphere of the public purposes for which its governmental powers are conferred Isaacs and Rich JJ in The Federated Municipal and Shire Council Employees Union of Australia vs Melbourne Corporation 2 in the context of the dual functions of State say much to the same effect at p 530 Here we have the discrimen of Crown exemption If a municipality either 1 is legally empowered to perform and does perform any function whatever for the Crown or 2 is lawfully empowered to perform and does perform any function which constitutionally is inalienably a Crown function as for instance the administration of justice the municipality is in law presumed to represent the Crown and the exemption applies Otherwise it is outside that exemption and if impliedly exempted at all some other principle must be resorted to The making and maintenance of streets in the municipality is not within either proposition A corporation may therefore discharge a dual function it may be statutorily entrusted with regal functions strictly so called such as making of laws disposal of certain cases judicially etc and also with other welfare activities The former being delegated regal functions must be excluded from the ambit of the definition of industry The next head of exclusion from the definition is put by the learned counsel for the appellant thus A municipality in the modern polity is also a trading 1 356 495 2 530 531 956 and industrial corporation and in that capacity is empowered to carry on undertakings partaking the Character of business and trade and that the definition of industry in the Act only takes in such undertakings and no other statutory activities To state it differently the contention is that activities which partake the character of trade and business in the hands of a private individual would be an industry if undertaken by a corporation Some observations made by this Court in D N Banerji vs P R Mukherjee 1 are relied upon in support of this contention Chandrasekbara Aiyar J speaking for the Court made the following observations at p 317 Having regard to the definitions found in our Act the aim or objective that the Legislature had in view and the nature variety and range of disputes that occur between employees and employees we are forced to the conclusion that the definitions in our Act include also disputes that might arise between municipalities and their employees in branches of work that can be said to be analogous to the carrying out of a trade or business Emphasis is laid upon the words analogous to the carrying out of a trade or business and an argument is built upon those words to the effect that this Court held that only such activities of municipalities analogous to trade or business would be industry within the meaning of the definition of industry in the Act This argument if we may say so is the result of an incorrect reading of the decision There the question was whether the sanitary department of a municipality was an industry within the meaning of the and whether the dispute between the municipality and its employees in that department was an industrial dispute thereunder At p 311 the learned Judge specifically deals with a contention based upon the collocation of the words in the section and observes Though the word undertaking in the definition of industry is wedged in between business and trade on the one hand and manufacture on the other and though therefore it might mean only a business or trade undertaking still it must be 1 957 remembered that if that were so there wag no need to use the word separately from business or trade The wider import is attracted even more clearly when we look at the latter part of the definition which refers to calling service employment or industrial occupation or avocation of workmen Undertaking in the first part of the definition and industrial occupation or avocation in the second part obviously mean much more than what is ordinarily understood by trade or business The definition was apparently intended to include within its scope what might Dot strictly be called a trade or business venture This passage leaves no room for doubt that this Court construed the terms of the definition of industry in a way which takes in activities which are not strictly called trade or business Therefore the words not strictly be called a trade or business venture and the words analogous to the carrying out of a trade or business emphasize more the nature of the organised activity implicit in a trade or business than to equate the other activities with trade or business This is made more clear by the learned Judge when be expressly reserves the Court s opinion on a wider question in the following words at p 318 It is unnecessary to decide whether disputes arising in relation to purely administrative work fall within their ambit We cannot therefore agree with the contention that the said decision when it expressly accepted the comprehensive meaning which the words of the section naturally bear intended to circumscribe the wide sweep of the section to business or trade and activities in the nature of trade or business Nor a fair reading of the section bears out such a construction We have already indicated our view on the construction of the section having regard to the clear phraseology used therein that the section cannot be confined to trade or business or activities analogous to trade or business A more workable and reasonable test is laid down in an Australian decision cited at the Bar and that test has also been accepted and applied by this Court In Federated Engine Drivers and Firemen s Association 958 of Australia and Others vs The Broken Hill Proprietory Company Limited and Others 1 a distinction was drawn between trading and non trading operations but the question as to how far non trading operations attracted the definition of industry was left undecided That question fell to be decided in The Municipal and Shire Council Employees Union of Australia vs Melboure Corporation 2 and that decision if we may say so is illuminating and throws considerable light on the question to be decided in the present appeal It was held by the High Court of Australia that the Commonwealth Court of Conciliation and Arbitration had authority to determine by award a dispute between an organization of employees registered in connection with municipal and shire councils municipal trusts and similar industries and municipal corporations constituted under State laws The dispute there related to those operations of municipal corporations which consisted of the making maintenance control and lighting of public streets The learned Judges discussed at length the meaning of the word industrial dispute in section 51 XXXV ofthe Constitution of Australia It is manifest from this decision that even activities of a municipality which cannot be described as trading activities can be the subject matter of an industrial dispute Isaacs Jin his dissenting judgment in The Federated State School Teachers Association of Australia vs The State of Victoria 3 has concisely expressed this idea at p 587 thus The material question is What is the nature of the actual function assumed is it a service that the State could have left to private enterprise and if so fulfilled could such a depute be industrial This test steers clear of the argument that to be an industry the activity shall be a trading activity If a service performed by an individual is an industry it will continue to be so notwithstanding the fact that it is undertaken by a corporation Another test suggested by the learned counsel may be scrutinized It is said that unless there is a 1 2 530 531 3 959 quid pro quo for the service it cannot be an industry This is the same argument namely that the service must be in the nature of trade in a different garb This Court in D N Banerji vs P B Mukherjee 1 has held that neither the investment of capital or the existence of profitearning motive seems to beta sine qua non or necessary element in the modern conception of industry The conception that unless the public who are benefited by the services pay in cash for the services rendered to them the services so rendered cannot be industry is based upon an exploded theory As observed by Chandrasekhara Aiyar J the conflicts between capital and labour have now to be determined more from the standpoint of status than of contract Isaac and Rich JJ in The Fede rated Municipal and Shire Council Employees Union of Australia vs Melbourne Corporation 2 formulated the modern concept of industry at p 554 thus Industrial disputes occur when in relation to operations in which capital and labour are contributed in co operation for the satisfaction of human wants or desires those engaged in co operation dispute as to the basis to be observed by the parties engaged respecting either a share of the product or any other terms and conditions of their cooperation The learned Judges proceeded to state at p 564 The question of profit making maybe important from an income tax point of view as in many municipal cases in England but from an industrial dispute point of view it cannot matter whether the expenditure is met by fares from passengers or from rates In each case the municipality is performing a function and in the one case it performs it with a variation in contrast with the other Isaac J elaborated the theme in his dissenting judgment in The Federated State School Teachers Association of Australia vs The State of Victoria 3 at p 577 thus The contention sounds like an echo from the dark ages of industry and political economy Such disputes are not simply a claim to share 1 2 539 531 122 3 960 the material wealth jointly produced and capable of registration in statistics At heart they are a struggle constantly becoming more intense on the part of the employed group engaged in co operation with the employing group in rendering services to the community essential for a higher general human welfare to share in that welfare in a greater degree All industrial enterprises contribute more or less to the general welfare of the community and this is a most material consideration when we come to determine the present question apart from the particular contention raised at the Bar Monetary considerations for service is therefore not an essential characteristic of industry in a modern State The learned counsel then sought to demarcate the activities of a municipality into three categories namely i the activities of the department which performs the services ii those of the department which only impose taxes collect them and administer them and iii those of the departments which are purely in administrative charge of other departments We do not see any justification for this artificial division of municipal activities Barring the regal functions of a municipality if such other activities of it if undertaken by an individual would be industry then they would equally be industry in the hands of a municipality It would be unrealistic to draw a line between a department doing a service and a department controlling or feeding it Supervision and actual performance of service are integral part of the same activity In other words whether these three functions are carried out by one department or divided between three departments the entire organizational activity would be an industry This aspect of the question was incidentally touched upon by this Court in Baroda Borough Municipality vs Its Workmen and the following passage at p 49 reads thus We have already pointed out that under the Municipal Act a municipality may perform various functions some obligatory and some discretional The activities may be of a composite nature some 1 961 of the departments may be mostly earning departments and some mostly spending departments For example the department which collects municipal taxes or other municipal revenue is essentially an earning department whereas the sanitary department or other service department is essentially a spending department There may indeed be departments where the earning and spending may almost balance each other We have extracted this passage only because the observations are apposite to the discussion on hand but not to express our concurrence with the conclusion drawn in that case The question of bonus does not fall to be considered in the present appeal These observations and support to our view that integrated activities of a municipality cannot be separated to take in some under the definition of industry and exclude others from it We can also visualize different situations A particular activity of a municipality may be covered by the definition of industry If the financial and administrative departments are solely in charge of that activity there can be no difficulty in treating those two departments also as part of the industry But there may be cases where the said two departments may not only be in charge of a particular activity or service covered by the definition of industry but also in charge of other activity or activities falling outside the definition of industry In such cases a working rule may be evolved to advance social justice consistent with the principles of equity In such cases the solution to the problem depends upon the answer to the question whether such a department is primarily and predominantly concerned with industrial activity or incidentally connected therewith The result of the discussion may be summarized thus 1 The definition of industry in the Act is very comprehensive It is in two parts one part defines it from the standpoint of the employer and the other from the standpoint of the employee If an activity falls under either part of the definition it will be an industry within the meaning of the Act 962 2 The history of industrial disputes and the legisla tion recognizes the basic concept that the activity shall be an organized one and not that which pertains to private or personal employment 3 The regal functions described as primary and inalienable functions of State though statutorily delegated to corporation are necessarily excluded from the purview of the definition Such regal functions shall be confined to legislative power administration of law and judicial power 4 If a service rendered by an individual or a private person would be an industry it would equally be an industry in the hands of a corporation 5 If a service rendered by a corporation is an industry the employees in the departments connected with that service whether financial administrative or executive would be entitled to the benefits of the Act 6 If a department of a municipality discharges many functions some pertaining to industry as defined in the Act and other non industrial activities the predominant functions of the department shall be the criterion for the purposes of the Act The following are the various departments of the Nagpur City Corporation 1 General Administration Department 2 Octroi Department 3 Tax Department 4 Public Conveyance Department 5 Fire Brigade Department 6 Lighting Department 7 Water Works Department 8 City Engineer Department 9 Enforcement encroachment Department 10 Sewage Pumping Station Department 11 Sewage Farm Department 12 Health Department 13 Market Department 14 Cattle Pound Department 15 Public Gardens Depart ment 16 Public Works Department 17 Assessment Department 18 Estate Department 19 Education Department 20 Printing Press Department 21 Workshop Department and 22 Building Department Out of these departments the State Industrial Court has held that all the departments except those pertaining to i assessment and levy of house tax ii assessment and levy of octroi iii removal of encroachment and pulling down of dilapidated houses iv maintenance of cattle pounds 963 and v prevention and control of food adulteration are industries Even in regard to the departments which the State Industrial Tribunal held to be industries it denied relief to persons who are not covered by the definition of employees in the Act As the employees have not preferred any appeal against the award in so far as it went against them nothing further need be said in regard to the aforesaid five departments Before we consider whether all or any of the departments of the Corporation fall within the definition of industry in the Act it will be convenient to notice the scheme of the City of Nagpur Corporation Act 1948 Madhya Pradesh Act No 2 of 1950 Section 7 makes the Corporation a body corporate with perpetual succession and a common seal Section 6 describes the municipal authorities charged with the execution of the Act and they are a the Corporation b the Standing Committee and c the Chief Executive Officer Chapter II of Part II contains the aforesaid sections and it further provides for the constitution of the Corporation and the mode of election to the said body Chapter III of the said Part prescribes the procedure for the conduct of business of the Corporation Chapter IV thereof provides for the appointment of municipal officers and servants and for their punishment and removal Chapter V deals with powers duties and functions of the municipal authorities it gives the obligatory and discretionary duties of the Corporation Under section 57 the Corporation shall make adequate provision by any means or measures which it may lawfully use or take such as for lighting public streets cleaning of public streetsdisposal of nightsoil and rubbish maintenance of firebrigade and other welfare activities in the interest of the public Section 58 confers a discretionary power on the Corporation to provide for other amenities not covered by section 57 and which are comparatively not absolutely essential but are necessary for the happiness of the people of the State Provisions of Ch VI enable the municipality to hold and acquire properties to manage public institutions maintained out of municipal funds Section 79 enjoins on the 964 municipality to apply the fund available with it to discharge its statutory duties and pay salaries and allowances of its various servants Chapter IX enables the municipality to raise loans on the security of its properties for discharging debts and for meeting the capital expenditure Part IV empowers the municipality to impose taxes for the purposes of this Act and also describes the procedure for collecting the same Part V confers powers and imposes duties on the Corporation and its officers in respect of public health safety and convenience This Part deals with public convenience drains and privies conservancy sanitary provisions water supply and drainage regulation of factories and trades markets and slaughter places food drink drug and dangerous articles prevention of infectious diseases and disposal of the dead Part VI empowers the Corporation to draw up townplanning schemes to regulate erection and re erection of buildings to close public streets to remove obstruction in streets to regulate laying of new streets to dispose of mad and stray dogs to control public begging to prohibit brothels etc Part VIII lays down the general provisions for carrying on the municipal administration and also enabling the Corporation to make by laws for carrying out the provisions and intentions of the Act Shortly stated the Act creates the Corporation a juristic person capable of holding and disposing of property confers power on it to impose and collect taxes and licence fees to borrow money to decide disputes in the first instance in respect thereof constitutes the amounts so collected as the fund of the municipality from and out of which the liabilities of the Corporation are met and the salaries of its employees are paid imposed on it duties to carry out various welfare activities in the interest of the public confers on it powers for implementing their duties satisfactorily and also powers to make by laws for regulating its various functions In short a corporation is analogous to a big public company carrying out most of the duties which such a company can undertake to do with the difference that certain statutory powers have been conferred on the corporation for carrying out its functions more satisfactorily 965 With this background let us take each of the departments of the Corporation held by the State Industrial Court to be governed by the Act i Tax Department The main functions of this department are the imposition and collection of conservancy water and property taxes No separate staff has been employed for the assessment and levy of property taxes the same staff does the work connected with assessment and collection of water rates as well as scavenging taxes It is not disputed that the work of assessment and levy of water rate and scavenging rate for private latrines is far heavier than the other works entrusted to this department No attempt has been made to allocate specific proportion of the staff for different functions We therefore must accept the finding of the State Industrial Court that the staff of this department doing clerical or manual work predominantly does the work connected with scavening taxes and water rate The said rates are really intended as fees for the service rendered The services namely scavenging and supply of water can equally be undertaken by a private firm or an individual for remuneration and the fact that the munici pality does the same duty does not make it any the less a service coming under the definition of industry We would however prefer to sustain the finding on a broader basis There cannot be a distinction between property tax and other taxes collected by the municipality for the purpose of designating the tax department as an industry or otherwise The scheme of the Corporation Act is that taxes and fees are collected in order to enable the municipality to discharge its statutory functions If the functions so discharged are wholly or predominantly covered by the definition of industry it would be illogical to exclude the tax department from the definition While in the case of private individuals or firms services are paid in cash or otherwise in the case of public institutions as the services are rendered to the public the taxes collected from them constitute a fund for performing those services As most of the services rendered by the municipality come under the definition of industry we should hold that the employees of the 966 tax department are also entitled to the benefits under the Act ii Public Conveyance Department This is a tax which is a wheel cum road tax Conveyance department is meant to regulate the using of cycles rickshaws bullock carts etc This department recovers registration fees for rickshaws licence fee from rickshaw drivers and wheel tax from bullock carts It also recovers cycle tax on every cycle used in Corporation limits See the evidence of Witness No 1 for Party No 1 These taxes are therefore really fees collected by the Corporation for the services rendered to the owners of cycles and other conveyances by way of maintenance and construction of roads These services can equally be performed by a private individual or a firm for remuneration It satisfies the tests laid down by us This department therefore is an industry within the meaning of the definition in the Act iii Fire Brigade Department exhibit N A 22 gives the duties of the driver cum fitter of the Fire Brigade Department This exhibit indicates that the function of this department is to attend to fire calls Witness No 3 for Party No 1 says that it is the duty of the firebrigade to supply water at marriage functions and other public functions The firebrigade employees are not paid any extra amount for supplying water at public or private functions Though the department renders some extra services the main function of the department is to attend to fire calls Private bodies also can undertake this service It is said that under section 333 of the City of Nagpur Corporation Act powers are conferred on specified officers to remove or order the removal of any person who interferes with or impedes the operation for extinguishing the fire to close any street or passage in or near which any fire is burning to break into or pull down or use for the passage of hoses or other appliances any premises for the purpose of extinguishing the fire and generally to take such measures as may appear necessary for the preservation of life or property and that the services of the firebrigade cannot be satisfactorily rendered without such powers and that no private individual 967 can perform the same Here the argument tends to be fallacious as it ignores the distinction between he services and the statutory powers conferred to satisfactorily discharge the said services A private person or a firm can equally do the same services and nothing prevents the legislature from conferring similar powers on an individual or a firm These services also satisfy all the tests laid down by us and therefore we hold that this department is also an industry iv Lighting Department Lighting Department looks after the arrangements for lighting the streets in the Corporation area There are two systems of lighting streets namely 1 by electricity and 2 by kerosene oil lamps Electric street lighting is given on contract to Nagpur Light and Power Co Nagpur by the Corporation Kerosene oil street lighting is done departmentally by the lighting department Electric Light and Power Co is responsible to the Corporation for street lighting The said Company has to fix electric lights according to the programme given to it by the Corporation The burning hours are also fixed by the Corporation The Corporation does not charge the public for street lighting See the evidence of Witness No 5 for Party No 1 We have already indicated that quid pro coin the shape of payment of money for particular services rendered is not a necessary condition for the application of the definition of industry The services rendered by the department satisfy the terms of the definition They also satisfy both the positive and negative tests laid down by us We therefore hold that this department is an indus try v Water Works Department This department maintains three head works Kanhan Gorewara and Ambazeri There are pumping stations at Kanhan and Gorewara At the pumping stations the water is filtered and pumped into service reservoir at Nagpur The Corporation has a separate staff at each pumping station It has also a separate staff for distribution In addition it maintains an assessment department to assess water cess for the distribution of water See the evidence of Witness No 9 for Party No 1 These three branches of the department have an 123 968 administrative and an executive staff Whether the services rendered by the department are concerned With manufacturing process or not they are certainly covered by the wide definition of industry in the Act They also satisfy both the positive and negative tests laid down by us None of them comprises delegated regal functions of State and they are such that a private individual can equally undertake to do We therefore hold that the said department comes under the definition of industry vi City Engineers Department The function of this department is to exercise supervisory an ad ministrative control over its subordinate departments The City Engineer is the head of this department See the evidence of Witness No 5 for Party No 1 As we are of the view that the departments subordinate to this department come under the definition of industry this department which has administrative control Over those subordinate departments must be considered a part of those departments If so it follows that this department is also an industry vii Enforcement encroachment Department The function of this department is to remove encroachment and unauthorised constructions and dilapidated houses This department is a section of the Estate Department See the evidence of Witness No 5 for Party No 1 It is contended that the functions of this department are all statutory and that no private individual can perform them Statutory powers are conferred on the Corporation to remove encroachment and unauthorised construction and dilapidated houses These powers are necessary for the Corporation to protect its properties and to prevent encroachment thereon and to remove dilapidated houses in the interest of the public But if a distinction is made between the powers and the nature of the services rendered it would be obvious that the services rendered are not peculiar to a corporation A private firm may undertake to manage the properties of others It will have to appoint persons to detect encroachment and to take steps to recover possession of lands encroached upon The only difference between a firm and a municipal corporation is that the corporation 969 can in exercise of its statutory powers remove the encroachment but it does not prevent the aggrieved party from going to a civil court to establish his title to the property but in the case of a firm it cannot take the law into its own hands it has to get the encroachment removed through a court of law So far as the nature of the service is concerned namely protecting its properties in the interest of the public from encroachment and to recover possession of the lands encroached upon there is no essential distinction between the said service of the Corporation and a similar service performed by a private firm The service satisfies not only the terms of the definition but also the tests laid down by us Even so it is contended that the said reasoning cannot be invoked in the case of the service rendered by the municipality in removing dilapidated houses and it is said that the said service is rendered in exercise of a governmental function which a private individual cannot himself discharge Here again the incidental power is confused with the service To illustrate a firm may undertake to remove dilapidated houses and render the said service to those who engage it It may not have the power to remove dilapidated houses of persons other than those who employed its services The difference does not in any way affect the character of the service We therefore hold that this department is also an industry viii Sewage Department The sewage pumping station is meant for pumping sewage at the outfall of the underground sewers The sewage is utilised on the land on broad irrigation system and some crops are also grown on the farm See the evidence of Witness No 8 for Party No 1 In the cross examination of the said witness it was elicited that whatever sewage is left after irrigating the farm maintained by the Corporation will be sold to the neighbouring farms For the said reasons it must be held that this department is also an industry ix Health Department This department looks after scavenging sanitation control of epidemics control of food adulteration and running of public dispensaries Private institutions can also render 970 these services It is said that the control of food the adulteration and the control of epidemics cannot be done by private individuals and institutions We do not see why There can be private medical units to help in the control of food adulteration and in the control of epidemics for remuneration Individuals may get the food articles purchased by them examined by the medical unit and take necessary action against guilty merchants So too they can take advantage of such a unit to prevent epidemics by having necessary inoculations and advice This department also satisfies the other tests laid down by us and is an industry within the meaning of the definition of industry in the Act x Market Department The function of the Market Department is to issue licences collect ground rent and registration fee and to detect short weights and measures Rents are collected for permitting persons to enter the Corporation land and transact business thereon Detection of short weights and measures is a service to the people to prevent their being cheated in the market The setting apart of market places supervision of weights and measures are services rendered to the public and the fees collected are remuneration for the services so rendered These services can equally be done by any private individual This department also satisfies the tests laid down by us We therefore hold that this department is an industry within the meaning of the Act xi Public Gardens Department The functions of this department are the maintenance of public parks and gardens and laying of new gardens and parks and planting of trees on road sides See the evidence of Witness No 5 for Party No 1 This service is covered by the definition of industry Any private individual can certainly perform the functions stated above and the fact that the municipality has undertaken those duties does not affect the nature of the service This also satisfies the tests laid down by us We therefore hold that this Department is an industry Xii Public Works Department This department is in charge of construction and maintenance of public 971 works such as roads drains buildings markets public latrines etc For the convenience of the public this department is divided into zones and every zone has its office The outdoor staff in the PWD consists of assistant engineer overseers sub overseers time keepers mates carpenters masons blacksmiths and coolies The other staff consisting of clerks and peons performs indoor duties See the evidence of Witness No 5 for Party No 1 This department performs both administrative and executive functions The services rendered are such that they can equally be done by private individuals and they come under the definition of industry satisfying both the positive and negative tests laid down by us in this regard We therefore hold that this department is an industry xiii Assessment Department This department deals with the assessment of taxes fees and rates The same staff does the assessment work connected not only with taxes strictly so called but also other fees and rates As the services rendered namely scavenging and supply of water can be done by private individuals the State Industrial Court held that they come under the definition of industry and therefore the department assessing fees and rates is also part of that industry There is no reason why a distinction should be made in regard to the assessment of taxes so called and that of fees and rates The taxes are collected only for enabling the Corporation to render service to the public and as most of the services come under the definition of industry this department also in our view is an industry within the meaning of the Act That apart the State Industrial Court has held that the same staff does the work of assessment of house tax as well as other fees and rates and the work of this department is predominantly connected with the assessment of scavenging tax and water rate Applying the test of paramount and predominant duty this department falls within the definition of industry in the Act xiv Estate Department This department maintains the record of property acquired vested or transferred to the Corporation and all buildings and roads constructed by the PWD This department 972 lets out lands and houses belonging to the Corporation by public auction and gets income therefrom which no doubt is credited to the common fund A department like this is equally necessary in a private company which carries out functions similar to the Corporation Maintenance of records of the properties acquired buildings and roads constructed and properties leased is a necessary administrative function correlated to the corresponding services If the service such as construction of buildings roads etc is an industry its administrative wing is also an industry The department as a whole both with its administrative and executive wings for reasons stated in connection with the other departments is an industry xv Education Department This department looks after the primary education ie compulsory primary education within the limits of the Corporation See the evidence of Witness No 1 for Party No 1 This service can equally be done by private persons This department satisfies the other tests The employees of this department coming under the definition of employees under the Act would certainly be entitled to the benefits of the Act xvi Printing Press Department The printing press is maintained by the Corporation for printing passes It is also used for printing of by laws and the rules and proceedings and forms and the by laws and the rules so printed are sold to the public For the reasons stated supra in the case of the Water Works Department this department is also an industry xvii Building Department This department is really a building permission department The function of this department is to regulate construction of buildings by private individuals and to take action against those who violate the by laws and the provisions of the Corporation Act pertaining to this department It is said that the functions of this department are statutory and no private individual can discharge those statutory functions The question is not whether the discharge of certain functions by the Corporation have statutory backing 973 but whether those functions can equally be performed by private individuals The provisions of the Corporation Act and the by laws prescribe certain specifications for submission of plans and for the sanction of the authorities concerned before the building is put up The same thing can be done by a co operative society or a private individual Cooperative societies and private individuals can allot lands for building houses in accordance with the conditions prescribed by law in this regard The services of this department are therefore analogous to those of a private individual with the difference that one has the statutory sanction behind it and the other is governed by terms of contracts This department functions in the interest of the public and the services rendered by this department satisfy both the positive and negative tests laid down by us We therefore hold that this department is covered by the definition of industry xviii General Administration Department This department co ordinates the functions of all the other departments The State Industrial Court describes the functions of this department thus This department consists of treasury accounts section records section in which are kept records of all the different departments and public relations section It also consists of a committee section the duty of which is to look after the convening of meetings to draw up agenda minutes of proceedings and to draft by laws In the record section are kept records of most of the departments including health and engineering Every big company with different sections will have a general administration department If the various departments collated with this department are industries this department would also be a part of the industry Indeed the efficient rendering of all the services would depend upon the proper working of this department for otherwise there would be confusion and chaos The state Industrial Court in this case has held that all except five of the departments of the Corporation come under the definition of industry and if so it follows that this department dealing predominantly 974 with industrial departments is also an industry Hence the employees of this department are also entitled to the benefits of this Act The State Industrial Court held that five of the departments of the Corporation did not fall within the terms of the definition of industry in the Act The employees of these departments did not file any appeal against the finding of the State Industrial Court and we do not propose to express our final opinion on the correctness of the decision of the Industrial Court in regard to these activities In the result the appeals fail and are dismissed with costs Appeal dismissed

C who was the Karta of the Hindu undivided family con sisting of his wife three sons and himself was a partner in six managing agency firms in six Mills and the income received by him as partner was being assessed as that of the Hindu undivided family for the purposes of income tax On December 31 1945 C acting for his three minor sons and himself and his wife entered into an oral agreement for a partial partition with effect from January 1 1946 by which C gave a certain share to his daughter in the managing agency commission from two of the six managing agencies held by the family and the balance together with the share in the other managing agencies was divided into five equal shares between C his wife and sons The agreement was subsequently recorded in a document dated September II 1946 which recited inter alia By this partition we decided that whatever commission fell due till 31 12 45 and which is received after 31 12 45 should be kept joint and in respect of the commission which accrues from 1 1 46 and received after that date each of us become absolute owner of his one fifth share and therefore from the date ie from 1 1 46 these commissions cease to be the joint property of our family For the assessment years 1947 48 and 1948 49 C claimed that the income from the managing agency firms should no longer be treated as the income of the Hindu undivided family but as the separate income of the divided members but the Income tax authorities rejected the claim on the grounds that by the document in question the division was of the income and not of the assets from which the income was 297 derived and since income tax was payable at the moment of time when income accrued this income must be taken to have accrued to the Hindu undivided family Held that inasmuch as there was no other effective mode of partitioning this asset and further in view of the finding that the partition was not a pretence the asset must be treated as divided for purposes of income tax law and the income was not assessable as the income of the Hindu undivided family

Appeal No 20958 Appeal by special leave from the Award dated September 16 1957 of the Industrial Tribunal No 11 Ernakulam in Industrial Dispute No 34 of 1957 G B Pai and Sardar Bahadurfor the appellants A V Viswanatha Sastri and M section K Sastri for the respondents March 9 The Judgment of the Court was delivered by DAS GUPTA J The appellant Ms Peirce Leslie Co Ltd is a private limited company engaged in various enterprises mainly in South India It started business in this country over a century ago and though it is registered in England almost all its activities appear to be carried on in this country The principal activities that require mention are the business in cashew nuts which the Company sells after roasting raw cashew nuts purchased in this country and in Africa and business in coir products and several other country produce like ginger lemon grass oil etc A large portion of the products in which it trades is exported to foreign countries Apart from these trading activities the company is also engaged in agency business including working as managing agents of many companies For many years the company as a whole had made good profits though in some of its many lines losses were incurred The company has on its pay roll a large number of employees and apart from superior officers in its covenanted and uncovenanted staff both Indian and European it employs in its various lines of business a large number of workmen including clerical staff The 196 clerical staff alone consists of 882 monthly paid employees For many years the Company has voluntarily paid bonus to all its employees out of the surplus profits To the monthly paid employees with whom we are concerned in the present appeal the company paid during the year 1954 55 a sum equivalent to three months basic wages as bonus Not content with this these employees through their Union put forward a claim for additional bonus The industrial dispute thus raised was referred by the Government to the Industrial Tribunal sitting at Coimbatore Before the Tribunal the workmen claimed an additional bonus equal to seven months basic wages The company s case was that the peculiar nature of its activities specially the fact that in its agency business very little capital was employed and the fact that in the cashew business and other produce business the element of risk was unusually treat justify material alteration in the Full Bench Formula for ascertainment of the available surplus in several respects The main alteration asked for before the Tribunal appears to have been that rates higher than 6 of paid up capital and 4 on reserves employed as working capital should be allowed in working the Full Bench Formula in view of the special risks in its business and the further fact that its agency business requires very little capital These claims were rejected by the Tribunal The Tribunal also accepted only partially the company s claims as regards rehabilitation allowances for the year and as regards actual amounts used as working capital Having arrived on its calculations at the figure of pound 55137 as the available surplus after meeting all prior and necessary charges the Tribunal awarded bonus equal to five months basic wages in addition to three months basic wages already voluntarily paid by the company In making this distribution the Tribunal rejected the company s case that as this claim was raised by only a small percentage of the workmen the entire available surplus should not be treated as available in distributing bonus to these few workmen The first contention urged in appeal before us is that the Tribunal was wrong in rejecting the com 197 pany s claim for higher return than usual on paid up capital and reserves used as working capital The appellants counsel has taken us through the evidence oral and documentary as regards what he characterized as the heavy fluctuations in the price of raw cashew nuts which the company had to purchase and the price in the foreign market of the finished goods That there is some amount of risk is undoubtedly true We are not convinced however that the company s business whether in cashew nuts or in any other line is attended with such unusual risk as would justify the provision of more than the usual rate of return Return on invested capital has always to provide for pure interest plus compensation for the risks of the business Prevailing interest in the money market yielded by giltedged security is ordinarily taken to be a fair index of what should be considered reasonable as pure interest For many years now this figure has varied from 3 to 4 per cent If no risks were involved this percentage should have been considered a fair return on invested capital It is because most businesses contain an element of risksome more some less because of fluctuations on the one hand in the prices of raw material and on the other hand in the effective demand for the finished goods apart from cyclical booms and depressions that an additional return of 2 to 3 is generally considered necessary to compensate for the risks It is in view of this that a return of 6 is ordinarily considered to be a fair return on the capital invested in the shape of paid up capital In a particular industry where the risk is appreciably less than usual there will be good cause for providing less than 6 And similarly in an industry where extraordinary risks are run more than 6 should reasonably be provided for If therefore there was reason to think that the appellant company s contention that its business was attended with unusual risks was correct there would have been good reason to allow a higher rate than 6 on the paid up capital and also a higher rate than 4 on the reserves used as working capital We are not however satisfied that any such unusual risk is 198 run There is no more speculation in buying raw nuts and roasting the same and selling them than there is say in buying raw cotton in the market spinning yarn therefrom making it into cloth and selling such cloth or in buying raw jute spinning yarn therefrom weaving it into gunny cloth and selling the same No case for any higher return on the paid up capital or working capital has been made out by the evidence Nor can the fact that the agency business of the company does not require much in the way of capital be considered to be a reason for allowing a higher rate of return in those lines If in the agency businesses considerable profits are earned with a small amount of capital the contribution to such earning by labour including both those at the top and those at the bottom is necessarily considerable There is no justification for compensating the entrepreneur for the fact that with a small amount of capital considerable profits are earned This brings us to the appellant s case about higher rehabilitation allowance than what has been allowed by the Tribunal The company put its claim for rehabilitation allowance at the figure of pound 31780 but the Tribunal accepted only a sum of pound 9 11250 as the reasonable figure towards statutory depreciation and rehabilitation together In support of its claim the Company produced a number of statements prepared by witnesses claimed to be experts showing the replacement value of buildings machinery furniture and sundry plants which constituted the fixed capital of the company Statements are also produced showing the further expectation of life of each of these items The services of a chartered accountant firm were also requisitioned and we have on the record a statement showing how the figures required for replacement have been worked out for the various items of buildings machinery and furniture and sundry plants According to Exhibit E 50 the statement on which great reliance was place by the company the total replacement value of its assets was RS 10802330 made up of Rs 7786350 for buildings Rs 1852320 for plants and machinery 199 Rs 363550 for furniture and Rs 800110 for sundry plants Different items of buildings and machinery are put in separate groups according as the replacement is necessary in view of the residual age during 1955 60 1960 65 1965 70 1970 75 1975 80 1980 85 1985 90 1990 95 1995 2000 2000 2005 2005 is taken as the last year as the residual age is calculated from 1955 and the maximum residual age is taken to be 50 years Exhibit E 43 shows the detailed calculations on this basis how the sum of Rs 7786335 was arrived at as the replacement cost of buildings Exhibit E 46 is a similar statement in respect of replacement costs of plant and machinery exhibit E 29A shows how after taking reserves for rehabilitation for the different groups of buildings into consideration the rehabilitation charge for the season 1952 53 is worked out at Rs 19878 for buildings and the rehabilitation for plant and machinery is worked out as pound 5435 Details are also given as regards the calculation of pound 4744 as the rehabilitation costs to be provided for sundry plants and pound 1723 as the rehabilitation costs for furniture in the year 1954 55 The very fact that such care has been taken in furnishing details to the Court inclines one prima facie to accept the correctness of these figures without much scrutiny Scrutiny is however very much needed before the figures and the calculations are accepted Mention may first be made of the fact that though it was stated by the witness who is responsible for the preparation of the replacement costs of the machinery that he obtained quotations from different firms no such quotation has been placed on record That as the Tribunal itself recognized affected very much the value of these figures As however after mentioning the infirmities of the evidence the Tribunal decided to accept as_a reasonably accurate statement this figure of Rs 10802330 as the total replacement value we need not consider whether we ourselves would have been prepared to accept the evidence if the matter was being considered by us in the first instance 200 A more serious question however is whether the basis adopted by the appellant s expert for the calculation of this sum as the replacement costs to be provided over the years in the application of the Full Bench Formula can be accepted As the appellant s expert himself has stated the value he has given as the rehabilitation cost for any particular building is on the basis of what would be required to construct a similar building if the existing building was pulled down in 1955 He has proceeded on the same way as regards the machinery and other assets The Tribunal after accepting the figure of Rs 10802330 as the correct figure for replacement deducted the sum which in its opinion was available in the reserves towards such rehabilitation and then divided the remainder by 50 as 50 years would be the period that these buildings and machinery would last if replaced in 1955 by new buildings and new machinery It has been urged before us that the Tribunal was wrong in dividing the sum obtained after the total amount to be provided was ascertained by 50 inasmuch as the figure of Rs 10802330 was itself arrived at on the basis of the sum that would have to be provided for the different groups of buildings and the sum to be provided in 1954 55 for all these different groups should have been accepted at these figures worked out in Exhibit E 29A It appears to us that this method of arriving at the rehabilitation costs to be provided in a particular year is not useful and cannot be safely relied upon To understand the fallacy of the method applied we may briefly state the logic behind the provisions for rehabilitation Because the fixed capital of any industry is the victim of gradual deterioration the prudent businessman creates reserves out of his profits so that as soon as any portion of the fixed capital has become too deteriorated for efficient working it may be replaced The economic welfare of the country as a whole no less than the interests of the businessman requires that the company s capital fund should remain Intact It is for this reason that an amount reasonably sufficient for the notional requirement of rehabilitation during the relevant 201 year is deducted as a prior charge in ascertaining suprlus profits from which bonus can be paid The basis of the prior charge is the assumption that rehabilitation is a continuing process and so needs allotment from year to year That is why it has now been held that if the amount allotted for a specific year is not used it should be taken into account in the later year This has been recognized in the Full Bench Formula and has received the authoritative recognition from this Court in numerous cases A full discussion of the principle involved can be found in Associated Cement Company s Case 1 It is important to note what was pointed out there as regards the replacement value being calculated on the basis of what would be required to replace the fixed assets in question at the date when replacement is due One way of ascertaining that was to multiply the original cost by the figure which would reflect the expected rise or fall in prices at the date for replacement After the replacement cost is ascertained it is necessary to deduct therefrom the amount already lying in reserves for this purpose and then to see over what period the balance will have to be found There will no doubt be difficulties in the way of estimating the replacement costs in this manner but that cannot justify the attempt at over simplification by working out the replacement cost on the hypothesis that replacement cost at the date of replacement will be the same as on the present date If the prices fall in the meantime too much will have been set apart for rehabilitation if prices rise too little To take the instance of buildings which form the greater portion of the assets of the appellant company it may well be that by the time some of these buildings require replacement the cost of construction will have become less than at the present time by reason of more efficient production of cement and steel in the country So also the price of machinery some years later may well be less than the price now by reason of such machinery being produced in our own country The layman s apprehension that prices rise 1 26 202 never to fall again cannot be accepted as a correct basis for calculation of the replacement cost on a future date The entire basis of the calculation of the replacement cost by the appellant s experts is what such costs will be if the building was pulled down or the machinery scrapped in 1955 and had to be replaced by a new machinery on that date His estimate of the replacement cost cannot therefore be accepted as a sure basis for any calculation of the rehabilitation costs to be provided It is unnecessary therefore to go into the further question as to whether the Tribunal was justified in treating the sum of pound 20000 and also another sum of pound 44760 as available towards rehabilitation We may however indicate that if it were necessary to go into the question we would have probably hesitated to hold that these sums were not in fact available for rehabilitation A strict view of the evidence thus justifies a conclusion that the appellant company has failed to make out any case for rehabilitation allowance in addition to the ordinary depreciation As however the learned counsel for the respondent did not challenge the correctness of the allowance of pound11250 assessed by the Tribunal as the total allowances towards statutory depreciation and rehabilitation together it would be proper to apply the formula on that basis The other question in dispute was as regards the amount of reserves actually used as working capital Out of what was claimed by the company as reserves employed as working capital the Tribunal disallowed two items One was in respect of a sum of pound 209339 which appeared in the balance sheet as provision for taxation liability another was an item of pound 8250 as provision for proposed dividend on deferred ordinary shares The Tribunal was of opinion that the company had not made any attempt to prove that these amounts had actually been used in the business The appellant contends before us that a scrutiny of the balance sheet is sufficient to satisfy any one that these amounts had actually been employed as working 203 capital It is stressed in this connection that when the balance sheets were put in evidence through the company s officer no challenge as to the correctness of the statement made therein Was made in cross examination Though no direct challenge to the correctness of the statements appearing in the balancesheets about the value of the different assets appears to have been made it is important to notice that the employer s witness No 2 through whom the balancesheets and the profit and loss accounts of the company were put in evidence was asked in cross examination as regards the discrepancy between the statements in the balance sheet E 8 where the bank overdraft was shown as pound195990 and the statement Exhibit E 12 which showed the bank overdraft in June 1955 as 37 5 lakhs which is equivalent to pound 275000 The difference being of about pound80000 the witness was asked which is correct whether E 8 or E 127 and when the witness answered that both were correct he was asked how His answer was I do not know It may be that there is a satisfactory explanation of this difference but the evidence on record does not disclose this When there remains prima facie such discrepancy as regards the very important figure as regards bank overdraft the Tribunal would well be justified in refusing to base any conclusion on the valuation of different assets as stated therein There is apart from this the important fact that the company itself does not claim that whatever appears to be on the asset side over and above the paid up capital has come from the reserves Exhibit E 30 is the statement prepared by the company s Chartered Accountant to show Reconciliation of working capital as on 30th June 1958 It arrives at the figure of pound605564 as the working capital by deducting from the current assets as per balance sheet as on June 30 1955 six out of nine items under Current liabilities provisions 3 items not deducted are those under 1 liability for taxation other than UK Income tax2 proposed dividend on deferred ordinary shares and 3 capital profits on proposed distribution The obvious reason for deducting the six items from the current assets to arrive at the working capital is that 204 these items in the balance sheets under current liabilities and provision would have to be met during the year out of a portion of the current assets which portion would accordingly not be available for use as working capital If that is the case as regards the other items under current liabilities and provisions it is not clear why that should not also be the case as regards the current liabilities under liabilities for taxation other than UK Income tax and under proposed dividend on deferred ordinary shares In the absence of evidence to the contrary there is no ground for thinking that these current liabilities had not also to be met out of the current assets during the year No such evidence has been produced The Tribunal is therefore right in our opinion in rejecting the company s claim that these amounts were also employed as working capital As regards the other prior charges there is no dispute The Tribunal applying the Full Bench Formula on the basis of the different findings hold after deducting the bonus already paid voluntarily by the company that the company had still in its hand a sum of pound55137 out of which it could pay a reasonable amount to these workmen When deciding how much out of this pound956137 could reasonably be paid as additional bonus to these workmen the Tribunal had to consider the contention raised on behalf of the appellant company that it would be unfair to ignore the fact that not these staff members alone but 11247 other workmen as well have contributed to the emergence of this surplus The appellant s argument was that staff members who have raised this dispute should not be allowed to steal an advantage over the numerous other workers of the company and that just as results of the different branches of the company have been considered as a whole in arriving at the figure of available surplus it is just and proper that these workmen who have raised the dispute should be given only a fair share out of that portion of the surplus which may be considered properly payable to all the workmen of the company In dealing with this question the Tribunal has said 205 But the fortune of the 11247 workers depend upon the trading results of the department in which they are working the bonus of the workers is decided compartment wise and not on the basis of the overall profits of the company Cashew workers are given bonus on the basis of the cashew depart ment profits and not on the basis of the total profits of the company The staff members are transferable from one department to another and from one branch to another branch We are not able to understand how in spite of the way the company s balance sheets and profit and loss accounts have been kept the different departments of the company could be treated separately for the purposes of bonus The mere fact that the company has actually done so does not make such distribution right Obviously if cashew workers would in fact be entitled to a larger bonus on the overall results of the company they have been unfairly treated by the company in having been given lesser bonus on the basis of cashew department profits It is urged on behalf of theappellant that the fact that the workmen other than these staff members have got less than they would have been entitled to does not justify the grant of a larger share to the present workmen than what they would be entitled to if those other workmen had been given a fair share This Court had to deal with a somewhat similar position in Indian Hume Pipe Co vs Their Workmen1 The respondents there were workmen only of the Wadala factory The appellant had however paid to various workmen elsewhere as and by way of bonus varying between 4 and 29 of the basic wages for the year in question It was clear that the sum of Rs 123138only had been paid in full and final settlement to the workmen in some of the factories and the bonus calculations on an all India basis would work to the advantage of the appellant in so far as they would result in saving to the appellant of the difference between the amounts to which those workmen would be entitled to on the basis of the all India figures adopted by the tribunal and the amounts actually 1 1959 SUPP 2 SCR 948 206 paid to them as a result of agreements conciliation or adjudication On behalf of the respondents it was therefore contended that the calculations should be made after taking into account the savings thus effected Dealing with this contention this Court observed We are afraid we cannot accept this contention If this contention was accepted the respondents before us would have an advantage over those workmen with whom settlements have been made and would get larger amounts by way of bonus merely by reason of the fact that the appellant had managed to settle the claims of those workmen at lesser figures If this contention of the respondents was pushed to its logical extent it would also mean that in the event of the non fulfilment of the conditions imposed by the tribunal in the award of bonus herein bringing in savings in the hands of the appellant the respondents would be entitled to take advantage of those savings also and should be awarded larger amounts by way of bonus which would really be the result of the claimants entitled to the same not receiving it under certain circumstances an event which would be purely an extraneous one and unconnected with the contribution of the respondents towards the gross profits earned by the appellant The tribunal was therefore right in calculating the bonus on an all India basis Though in the present case there has been no settlement strictly speaking with the other workers in the various branches the considerations which weighed with the Court in the above case are fully applicable to this case and the Tribunal must be held to have committed an error in treating the sum still in the hands of the company as a matter only between the company and these present claimants In deciding what relief may reasonably be given to the appellant company in view of this error in the Tribunal s approach to the question of distribution of the amount still available we have however to take into account two errors which have been made by the Tribunal in this connection in favour of the appellant One of these is that in distributing the available 207 surplus the Tribunal omitted to take into account the important fact that a sum of no less than pound110000has been capitalised out of the reserves at the beginning of the year The second error was that the Tribunal in saying that after paying 8 months bonus there is a balance of pound 34397 with the employer omitted to take into consideration the fact that the company would also have the benefit of a large amount as income tax rebate in respect of the bonus paid to its clerical staff Taking all these facts into consideration we are of opinion that a fair order would be to award to the staff bonus equivalent to 3 months basic wages in addition to the amount already paid voluntarily We therefore allow the appeal in part and in modification of the award made by the Industrial Tribunal award to the staff of Ms Peirce Leslie Co Ltd bonus equivalent to 3 months basic wages in addition to the amount already voluntarily paid by the company There will be no order as to costs Appeal partly allowed

The first appellant was the Managing Director and the second appellant a Director and technical expert of a cloth dyeing concern known as Parikh Dyeing and Printing Mills Ltd The company entered into a contract with the Textile Commissioner undertaking to dye a large quantity of cloth which was supplied to the company for that purpose In pursuance of the contract certain quantity of cloth was dyed and delivered to the Textile Commissioner by the company but it failed to dye and deliver the balance of cloth which remained in its possession and was not returned to the Textile Commissioner in spite of repeated demands Ultimately the two appellants were prosecuted for criminal breach of trust under section 409 read with section 34 of the Indian Penal Code and were convicted for the same in a trial by jury 320 In appeal the High Court reviewed the evidence on the ground of misdirection to the jury but found that the two appellants were liable to account for the cloth over which they had dominion and having failed to do so each of them was guilty of the offence of criminal breach of trust The High Court refused to accept the appellants plea that the cloth was old and was eaten up by white ants and moths On appeal by the appellants by special leave Held that to establish a charge of criminal breach of trust the prosecution was not bound to prove the precise mode of conversion misappropriation or misapplication by the accused of the property entrusted to him or over which he had dominion The principal ingredient of the offence of criminal breach of trust being dishonest misappropriation the mere failure of the accused to account for the property entrusted to him might not be the foundation of his conviction in all cases but where he was unable to account and rendered an explanation for his failure which was untrue an inference of misappropriation with dishonest intent might readily be made The essence of liability under section 34 of the Indian Penal Code is the existence of a common intention animating the offenders and the participation in a criminal act in furtherance of the common intention The physical presence at the scene of offence of the offender sought to be rendered liable under section 34 is not on the words of the statute one of the conditions of its applicability in every case Barendra Kumar Ghose vs The King Emperor 1929 LR 52 IA 40 followed Shreekantiah Ramayya Munipalli vs The State of Bombay explained and distinguished

il Appeals Nos 392 of 1956 686 of 1957 Appeals from the judgment and order dated March 31 1954 of the former Hyderabad High Court in Civil Writ Nos 43 and 44 of 1951 respectively section P Varma section Mohammed and section R Borgaouker for the appellants in both the appeals A V Viswanatha Sastri P V R Tatachari and TM Sen for the respondents in both the appeals Civil Appeal No 392 of 1956 March 16 The Judgment of the Court was delivered by SHAH J This is an appeal filed with a certificate granted under article 1331c of the Constitution by the High Court of Judicature of the State of Hyderabad The appellant was a Jagirdar holding jagirs Ramwarm Chandam Palli and Gulla Palli Taluq Sirsalla in the District of Karimnagar in the State of Hyderabad After the Police Action in August 1948 Major General Chaudary was appointed the Military Governor for the State of Hyderabad His Exalted Highness the Nizam of Hyderabad invested the Military Governor with authority to administer the State by a Farman dated September 19 1948 The Farman was in the following terms Whereas the General Officer Commanding in Chief Southern Army has appointed Major General J N Chaudary OBE to be the Military Governor for the Hyderabad State and whereas all authority 313 for the administration of the State now vests in him I hereby enjoin all the subjects of the State to carry out such orders as he may deem fit to issue from time to time I appeal to all officers of the State administration and subjects of the State to render faithful and unflinching obedience to the Military Governor and conduct themselves in a manner calculated to bring about the speedy restoration of law and order in the State On August 7 1949 His Exalted Highness the Nizam issued an explanatory Farman in the following terms With reference to my Farman dated 19 9 1948 in which I referred to the fact that all authority for the administration of the State now vests in the Military Governor I hereby declare that the said authority includes and has always included authority to make Regulations On August 10 1949 the Military Governor promulgated The Hyderabad Abolition of Jagirs Regulation of 1358 Fasli which will hereinafter be referred to as the Abolition Regulation This Regulation was brought into force on August 15 1949 the date of its publication in the Official Gazette Section 5 of the Regulation directed that from a date to be notified for the transfer of the administrations of the jagirs in the State to the Government the jagirdars shall make over the management of the jagirs to the Jagir Administrator and in default of compliance therewith the Officer appointed under the Regulation may take forcible possession By section 6 it was provided that the jagirs shall be included in the Diwani and unless and until included in a district shall be administered by the Jagir Administrator and that the powers rights and liabilities in relation to such jagirs shall cease to be exercisable by the jagirdars and shall be exercisable by the Jagir Administrators and that no jagirdar shall recover or receive any customary or other dues from any tenant or resident of the jagir By section 14 it was declared that the jagirdars were to receive certain interim maintenance allowances until such time as the terms of the commutation of the jagirs were determined Pursuant to the authority reserved by a 6 of the Abolition Regulation possession 314 of the jagirs was taken over sometime in September 1949 by the Jagir Administrator acting on behalf of the State of Hyderabad On December 1 1949 another Farman was issued by His Exalted Highness the Nizam which provided as follows Whereas the General Officer Commanding in Chief Southern Army has as from the 1st December 1949 terminated the appointment of Major General Chaudary OBE to be the Military Governor for the Hyderabad State And whereas it is necessary to make other arrangements for the administration of the State as from the said date Now therefore I hereby appoint as from the said date Mr M K Vellodi CIE ICS to be my Chief Minister and I further direct that all the powers of administration vested in the Military Governor before the said date are exercisable by the Chief Minister In exercise of the powers vested in him the Chief Minister promulgated the Hyderabad Jagirs Commutation Regulation No XXV of 1359 Fasli which will hereinafter be referred to as the Commutation Regulation This Regulation was brought into operation on January 25 1950 By section 3 of the Regulation the method of computing the commutation sum for every jagir was prescribed After the inauguration of the Constitution of India on January 26 1950 on which date the territory of the State of Hyderabad became part of the Union of India the President on April 25 1950 certified the two Regulations under article 316 of the Constitution by a notification published in the gazette of the Union of India The Constitution was amended on June 18 1951 by the Constitution First Amendment Act of 1951 whereby inter alia articles 31A and 31B and Sch IX were incorporated in the Constitution The Abolition Regulation and the Commutation Regulation were included in Schedule IX and by virtue of article 31B neither the Regulations nor any of the provisions thereof were to be deemed to be void or ever to have become void on the ground that the 315 Regulations were inconsistent with or took away or abridged any of the rights conferred by any of the provisions of Part III of the Constitution In the meantime the appellant had on January 29 1951 filed a petition in the High Court of Hyderabad for a writ in the nature of mandamus directing the State of Hyderabad and the Jagir Administrator to hand over possession of the appellant s properties and for an order declaring the Abolition Regulation and the Commutation Regulation ultra vires and unconstitutional and for certain interim orders After the amendment of the Constitution the petition was amended on August 14 1952 By this petition the appellant claimed that sections 41c and 42 of the Commutation Regulation and section 64 of the Abolition Regulation were invalid because by these provisions there was naked confiscation of the property of the appellant and that they amounted to colourable and fraudulent exercise of legislative power The High Court of Hyderabad rejected the petition filed by the appellant but certified the case under article 1331c as a fit one for appeal to this court In this appeal two principal contentions fall to be determined viz 1 whether legislative authority was conferred upon the Military Governor by the Farman dated September 19 1948 and 2 If by the Farman legislative authority was delegated to the Military Governor whether it was circumscribed by any limitations or reservations Was the Military Governor by the Farman dated September 19 1948 invested with all the sovereign authority legislative executive and judicial of HEH the Nizam or was he merely invested with the executive authority By the plain words used in the Farman all authority for the administration of the State was conferred upon the Military Governor and there is nothing in the text of the Farman which warrants the view that only executive authority was intended to be delegated thereby Within the expression all administrative authority is encompassed the entirety of the authority of the sovereign and by the delegation from His Exalted Highness the Nizam the Military Governor was invested with that authority 316 in all its amplitude The injunction to the subjects of the State to carry out all such orders as the Military Governor may deem fit to issue and the appeal to the officers of the State and the subjects to render faithful and unflinching obedience and to conduct themselves in a manner calculated to bring about the speedy restoration of law and order do not detract from the amplitude of the powers delegated to the Military Governor The expression orders would include every order made in exercise of authority for the administration of the State and the object intended to be achieved viz the speedy restoration of law and order in the State by His Exalted Highness the Nizam as expressed in the appeal was not restrictive of that authority That His Exalted Highness the Nizam in and before the month of September 1948 was an absolute ruler invested with all authority executive legislative and judicial is indisputable He had supreme powers vested in him to modify restrict take away or extinguish the rights of any of his subjects and the validity of his actions or orders was not liable to be questioned before any tribunal or authority The Farman promulgated on September 19 1948 by His Exalted Highness the Nizam delegated his sovereign authority to the Military Governor and to remove all doubts as to the effect of that delegation an explanatory Farman dated August 7 1949 was issued It was declared in express terms by that Farman that the authority of the Military Governor to included and has always included the authority to make Regulations In the clearest terms the author of the Farman proclaimed the content of the authority delegated by him to the Military Governor The plea rather faintly urged by Mr Varma that the Farman merely recited that the Military Governor had been invested with authority for administration and did not by its own force purport to invest the Military Governor with authority to administer the State is plainly inconsistent with the argument which was advanced in the High Court and the statement of the case filed in this court and was therefore rightly abandoned by him 317 Though by the delegation of authority the Military Governor was invested with all authority of His Exalted Highness the Nizam in the matter of administration of the State in all its departments the sovereignty of His Exalted Highness the Nizam was by this act of delegation undoubtedly not extinguished It was open to him notwithstanding the delegation to issue orders or Regulations contrary to those which were issued by the Military Governor and also to withdraw the authority of the Military Governor There is however no evidence on the record to show that after September 19 1948 and before the Abolition Regulation was promulgated the authority of the Military Governor was withdrawn or that His Exalted Highness the Nizam had issued any order or Regulation inconsistent with the Abolition Regulation The authority of the Military Governor was withdrawn in December 1949 and the Chief Minister was invested with the same authority of administration including expressly the power of legislation and it was in exercise of that authority that the Chief Minister issued the Commutation Regulation The authority of His Exalted Highness the Nizam as the sovereign ruler to resume the jagirs and to extinguish the interests of the jagirdars being by delegation vested in the Military Governor the legality of the action of the latter was not open to challenge on any test of legislative competence Assuming that no opportunity had arisen for exercise of the sovereign authority in the matter of resumption of jagirs or extinction of the jagirdars interests before the promulgation of the Abolition Regulation an inference cannot therefrom arise that His Exalted Highness the Nizam had irrevocably placed a restriction on his sovereignty or that the delegation to the Military Governor of the sovereign authority was subject to an implied restriction that the interests of the jagirdars in the jagirs could not in exercise of the authority be extinguished The authority of the Military Governor being unrestricted so long as it enured his action in issuing the Abolition Regulation could not be challenged on the plea that it was a colourable exercise of legislative 41 318 authority The doctrine of invalidity of legislative provisions enacted in colourable exercise of authority applies to legislatures whose powers are subject to constitutional restrictions When such a legislative body seeks under the guise or pretence of complying with the restrictions in enacting a statute to evade or elude them it is but a fraud on the Constitution and the statute is liable to be declared invalid on the ground that the enactment is in colourable exercise of authority the statute being in truth beyond the competence of the body But a statute enacted by a legislative authority whose powers are not fettered by any constitutional or other limitations cannot be declared invalid as enacted in colourable exercise of its powers The authority of the Chief Minister under the Farman dated December 1 1949 in its amplitude was as extensive as that of His Exalted Highness the Nizam and the Commutation Regulation was not liable to be challenged on the ground of want of legislative competence or colourable exercise of legislative authority the power exercised by him being the legislative power as the delegate of the Sovereign The plea that the fundamental rights of the appellant under the Constitution were infringed by the two Regulations does not require any detailed examination By virtue of the Abolition Regulation the rights of the appellant as a jagirdar in his jagir were extinguished and by the Commutation Regulation the quantum of compensation payable to him was determined by a pre Constitution legislation The Regulations were competently promulgated in exercise of legislative authority in that behalf and the Constitution does not operate retrospectively to revive the rights which had been before it was enacted extinguished The Constitution has except as otherwise expressly provided no retrospective operation Keshavan Mahava Menon vs State of Bombay 1 and rights which were by legislation extinguished before it was enacted are not revived thereby At the commencement of the Constitution the appellant had therefore no rights in the jagirs and he obviously could not claim a writ of mandamus directing 1 319 delivery of possession of the jagir or a writ directing commutation otherwise than under the provisions of the Commutation Regulation It may also be observed that the Parliament has by the Constitution 1st Amendment Act included the Abolition and the Commutation Regulations in the ninth schedule and by virtue of article 31B the two Regulations are exempt from challenge on the ground that they are inconsistent with or take away or abridge any of the fundamental rights conferred by Part III of the Constitution The appeal therefore fails and is dismissed with costs Civil Appeal No 686 of 1957 This appeal raises the same question which has been decided in the companion Appeal No 392 of 1956 and for reasons set out therein this appeal must fail and is dismissed with costs Appeals dismissed

The question for determination in these appeals was whether and to what extent the municipal activities of the Corporation of 943 Nagpur City fell within the term industry as defined by section 2 14 of the CP and Berar Industrial Disputes Settlement Act 1947 Disputes having arisen between the said Corporation and its employees in its various departments the State Government referred them for adjudication to the State Industrial Court under section 39 of the Act and that Court by its award held that the Corporation and all its departments were covered by the said definition Against that award the Corporation made an application to the High Court under article 26 of the Constitution The High Court rejected its contention that the Corporation was not an industry within the meaning of the said section and remanded the case to the Industrial Court for determination as to which of its departments fell within the definition and making an award accordingly Thereafter The Industrial Court found all the departments of the Corporation except those dealing with 1 assessment and levy of house tax 2 assessment and levy of Octroi 3 removal of encroachment and removal and pulling down of dilapidated houses 4 prevention and control of food adulteration and 5 maintenance of cattle pounds to be industries within the meaning of the definition and passed its award accordingly The Corporation appealed to this Court by special leave but there was no appeal on behalf of the employees of the five departments excluded from the definition Held that the decision of the Industrial Court except so far as it related to the five departments in respect of which the re was no appeal must be affirmed The definition of the word industry in section 2 14 of the CP and Berar Industrial Disputes Settlement Act 1947 although in a language somewhat different from that of section 2 1 of the is very comprehensive It is in two parts cl a defines it from the standpoint of employers and cl b from that of the employee An activity that falls within any of the two clauses must be in industry DN Banerji vs P R Mukherjee and Baroda Borough Municipality vs Its Workmen applied It is not necessary that an activity of the Corporation must share the common characteristics of an industry before it can come within the section The words Of section 2 14 of the Act are clear and unambiguous and the maxim noscitur a socii can have no application The history of industrial disputes and the legislation however recognises the basic concept that the activity must be an organised one and not one that pertains to private or personal employment State of Bombay vs The Hospital Mazdoor Sabha and Heydon s Case b referred to But the definition however wide cannot include the regal primary and inalienable functions of the State though statutorily delegated to a corporation and the ambit of such functions cannot be extended so as to include the welfare activities of a modern state and must be confined to legislative power administration of law and judicial power 120 944 Richard Coomber vs The Justices of the County of Berks Berks1883 84 9 AC 61 and The Federated State School Teachers Association of Australia vs The State of Victoria County Council of Middlesex vs Assessment Committee of St George s Union 1896 2 QBD 143 Verisimo Vasquez Vilas vs City of Manila 220 U section 345 and The Federated Municipal and Shire Council Employees Union of Australia vs Mclbourne Corporation referred to The real test as to whether a service undertaken by a corporation is an industry must be whether that service if performed by an individual or a private person would be an industry Monetary cosideration cannot be an essential characteristic of industry in a modern State It was therefore incorrect to say that only such activities as were analogous to trade or business could come within section 2 14 of the Act D N Banerji vs PR Mukherjee explained The Federated Municipal and Shire Council Employees Union of Australia vs Melbourne Corporation 19l8 19 Federated Engine Drivey and Fireme s Association and Ors vs The Broken Hill Proprietary Company Limited and Ors 5 and The Federated State School Teachers Association Australia vs The State of Victoria referred to Where a service rendered by a Corporation is an industry the employees of the departments connected with that service whether financial administrative or executive would be entitled to the benefits of the Act Baroda Borough Municipality vs Its Workmen 1957 SCR 33 referred to If a department of a municipality discharges many functions some within and some without the definition of industry given by the Act the predominant functions of the department shall be the criterion for the purposes of the Act

ivil Appeal No 104 of 1050 Appeal from a judgment and decree dated the 9th April 1947 of the High Court of Judicature at Patna Manohar Lal and Mukherjee JJ in First Appeal No 68 of 1944 arising out of judgment and decree dated the 23rd December 1943 of the Court of the First Additional Subordinate Judge Gaya in Suit No 4 of 1941 Gurbachan Singh Manohar Lal Sachdev with him for the appellants SB Jathar for the legal representative of respondent No 4 870 1952 May 16 FAZAL ALI J This appeal arises out of a suit for partition which was dismissed by the trial court but was decreed by the High Court of Patna on appeal The material facts of the case are briefly as follows One Rambilas Das had 2 sons Budparkash Das and Nandki shore Das Nandkishore Das had several sons the plaintiff Gurtahl Das being one of his illegitimate sons The present suit was brought by Gurtahl Das against 4 persons namely Gurnarayan Das and Jai Narayan Das sons of Nandkishore Das Shibtahl Das who was alleged to be one of the illegitimate sons of Nandkishore Das and Mst Rambholi Kuer wife of Nanaksharan Das one of the sons off Nandkishore Das Anoth er person Kuldip Das who was the daughter s son of Nandki shore s brother Budparkash Das intervened in the suit after its institution and was impleaded as the fifth defend ant After the death of the second defendant Jai Narayan Das his wife Surat Kuer was brought on record The plaintiff s case was that Budparkash Das and Nandki shoreDas formed a joint Hindu family and that Budparkash Das died without any male issue in a state of jointness with his brother Nandkishore with the result that the entire joint family property devolved on him Subsequently dis putes arose regarding the management and enjoyment of the properties among the plaintiff and the defendants which compelled the plaintiff to institute the present suit for partition The plaintiff alleged that the parties were Sudras and belonged to the Nanak Shai sect of Fakirs and that he and the third defendant Shibtahl Das were dasipu tras of Nandkishore Das by a concubine and Jai Narayan Das and Gurnarayan Das were also dasiputras of Nandkishore by another concubine The suit was contested mainly by the first defendant Gurnarayan Das and Mst Surat Kuer on the following pleas firstly that the suit was not maintainable as a suit for partition because the plaintiff was never 871 in possession of the properties of which he claimed parti tion secondly that the family of the defendants were not Sudras but Dwijas and an illegitimate son could not sue for partition thirdly that the defendants did not form a joint Hindu family with the plaintiff and Shibtahl Das fourthly that Mst Rambholi Kuer was not the widow of Nanaksharan Das and fifthly that the plaintiff and Shibtahl Das were not sons of Nandkishore Das The case of Mst Rambholi Kuer was that the parties were Dwijas and not Sudras and defend ant No 5 Kuldip Das pleaded to the same effect and fur ther alleged that Budparkash Das was separate from Nandki shore Das that although they did not divide the properties by metes and bounds they used to divide the produce half and half and that he was in possession of his share of the properties as the daughter s son of Budparkash Das and they could not be made the subject of partition Shibtahl Das supported the claim of the plaintiff The trial court dismissed the suit holding among other things 1 that the plaintiff not being in joint possession of any of the properties the suit for partition was not maintainable 2 that the parties were Sudras 3 that Budparkash Das and Nandkishore Das were joint and not sepa rate 4 that the plaintiff had no cause of action and 5 that Shibtahl Das had not proved that he was the son of Nandkishore Against the decision of the trial court the plaintiff preferred an appeal to the High Court at Patna and Kuldip Das filed a cross objection contesting the find ing that Budparkash was joint with his brother Nandkishore The High Court reversed the decision of the trial court and held 1that the parties were Sudras and not Dwijas 2 that Budparkash died in a state of separation from his brother Nandkishore and 3 that no suit for declaration of title was necessary and the plaintiff s failure to pay sufficient court fee should not stand in the way of suitable relief being granted to him Both the High Court and the trial court found that defendants Nos 1 and 2 Gurnarayan Das and 113 872 Jai Narayan Das were the legitimate sons of Nand kishore Das On the above findings the High Court passed a prelimi nary decree directing that separate allotments of the properties should be made to the plaintiff and the defend ants excepting Shibtahl Das It was contended before us on behalf of the first appel lant that the finding of the courts below that the parties were Sudras was not correct and should be set aside This contention must however fail since we find no good reason for departing from the wellestablished practice of this court of not disturbing concurrent findings of the trial court and the first appellate court In the present case the finding that the parties are Sudras is largely based on the oral evidence and the learned Judges of the High Court in arriving at their conclusion have not over looked the tests which have been laid down in a series of authoritative decisions for determining the question whether a person belongs to the regenerate community or to the Sudra community The next question which was very seriously debated before us was whether Budparkash Das and Nandkishore Das were joint or separate On this question the two courts below have expressed conflicting views but on a careful consideration of the evidence before us we are in clined to agree with the learned Judges of the High Court who after reviewing the entire evidence have come to the conclusion that Budparkash Das died in a state of separation from Nandkishore It will be material to quote here the following extract from the judgment of the trial judge in which he sums up the evidence on this question From the oral evidence on the record this much is quite clear that Budparkash lived in a separate house and used to get crops This defendant defendant No 5 Kuldip Das has also filed Exhibit B2 chaukidari receipt for 1936 Register No 283 and Exhibit C 1 copy of Assessment Register showing No 284 in the name of Budparkash which may go to show that possibly Budparkash was paying separate chowkidari tax The defendant No 5 has also filed some 873 letters marked A 1 A 5 A 4 A 6 A 10 and A 12 which not only show that this defendant is related to the defendants family but also that grains and money were offered to him from time to time But none of these documents clearly show that there had been partition between Budparkash and Nandkishore or that the defendant No 5 ever came in possession over any property as being the heir of Bud parkash Of course there is some oral evidence to support him But I do not think on considering and weighing the evidence that separation of Budparkash from Nandkishore has been proved The learned pleader for the defendant No 5 has urged that the circumstances considered in the light of the ruling reported in Behar Report Vol 4 1937 38 Privy Council at p 302 would support the defendant s case as there was defined share of Budparkash and Nandkishore in the Khatyan exts G1 and G2 I am not prepared to agree with the learned pleader on this point as there is not a scrap of paper to show that Budparkash or even after him Kuldip Das separately appropriated the usufruct of any property or ever Budparkash showed any intention of separation I expect that if Budparkash had separated at least on his death the defendant No 5 would have maintained an account book of his income from the properties in dispute specially as he lived at a distant place He does not appear to have ever cared to look after the property or demand accounts from his alleged co sharers This summary of the evidence shows firstly that the two brothers lived in separate houses secondly that they paid separate chaukidari taxes and thirdly that Budparkash used to get grains and money from Nandkishore from time to time The trial judge has also observed that the khatyans exhib its G 1 and G 2 record the defined shares of the two broth ers but the printed record shows that exhibits G 1 and G 2 are mere rent receipts As the khatyan was not printed we sent for the original record and found that the entries in the khatyan which are exhibits F 1 and have been correctly noted in the judgment of the trial court It seems to us therefore that the findings which we have set out give greater support to the oral evidence adduced on behalf of defendant No 5 than to the evidence adduced by the other parties and that being so we think that the finding of the High Court must be upheld We were greatly impressed by several letters of exhibit A series which have been found to be genuine by both the courts below The genuineness of the letters was attacked before us but we find no good reason for reversing the findings of the trial judge and the High Court In one of these let ters exhibit A 10 Nandkishore Das writing to Kuldip on the 12th June 1934 states that he was sending 25 maunds of rice 7 maunds of khesari and rupees seventy five and then adds I have got with me all the accounts written which will be explained when you will come and you will render a just account of your share when you come In another letter exhibit A 12 which was written by Nandkishore to Kuldip on the I5th October 1936 the former states I wrote to you several times to adjust account of your share but you did not do so up till now I write to you to come and examine the account of your share I have not got money now If you have got time then come for a day and have the account adjusted and take what may be found due to you It seems to us that if the parties were really joint in the legal sense of the term there was no question of examining the accounts and adjusting them and there would have been no reference to the share of Kuldip in the produce or the money collected The proper conclusion to be arrived at is as the witnesses for defendant No 5 have stated that though there was no partition by metes and bounds the two brothers were divided in status and enjoyed the usufruct of the properties according to their respective shares Several witnesses were examined on behalf of de fendant No 5 who have stated from their personal knowledge that the two brothers lived in separate houses were sepa rate in mess and the produce 875 was divided between them half and half It seems to us that the finding of the High Court as to the separation of the two brothers must be upheld The third contention urged on behalf of the appellants relates to the question whether the plaintiff is entitled only to maintenance or to a share in the properties left by Nandkishore Das The rights of an illegitimate son of a Sudra are considered in Mitaksbara Ch 1 section 12 which is headed Rights of a son by a female slave in the case of a Sudra s estate This text was fully considered by the Privy Council in Vellaiyappa vs Natarajan1 and the conclu sions derived therefrom were summarized as follows Their Lordships are of opinion that the illegitimate son of a Sudra by a continuous concubine has the status of a son and that he is a member of the family that the share of inheritance given to him is not merely in lieu of maintenance but in recognition of his status as a son that where the father has left no separate property and no legitimate son but was joint with his collaterals the illegitimate son is not entitled to demand a partition of the joint family property in their hands but is entitled as a member of the family to maintenance out of that property This statement of the law with which we agree may be supplemented by three other well settled principles these being firstly that the illegitimate son does not acquire by birth any interest in his father s estate and he cannot therefore demand partition against his father during the latter s lifetime secondly that on his father s death the illegitimate son succeeds as a coparcener to the separate estate of the father along with the legitimate sons with a right of survivorship and is entitled to enforce partition against the legitimate sons and thirdly that on a parti tion between a legitimate and an illegitimate son the illegitimate son takes only one half of What he would have taken if he was a legitimate son 1 AIR 1931 PC 294 876 It seems to us that the second proposition enunciated above follows from the following passage in the Mitakshara text But after the demise of the father if there be sons of a wedded wife let these brothers allow the son of the female slave to participate for half a share If therefore the illegitimate son is a coparcener with the legitimate son of his father it must necessarily follow that he is entitled to demand partition against the legiti mate son There can be no doubt that though the illegitimate son cannot enforce partition during the father s lifetime and though he is not entitled to demand partition where the father has left no separate property and no legitimate son but was joint with his collaterals he can enforce partition in a case like the present where the father was separate from his collaterals and has left separate property and legitimate sons The last point put forward on behalf of the appellants was that the plaintiff not being in possession of the properties which are the subject of the suit he cannot maintain a suit for partition This contention cannot prevail because the plaintiff is undoubtedly a cosharer in the properties and unless exclusion and ouster are pleaded and proved which is not the case here is entitled to partition Thus all the points urged on behalf of the appellants fail but in one respect the decree of the High Court must be modified To appreciate this reference will have to be made to the following statements made by defendant No 5 in paragraphs 8 and 11 of his written statement 8 That this defendant holds moiety share in jagir and kasht lands Mahanth Budh Parkash Das was living separately in the northern house allotted to him and the southern portion was allotted to the thakhta of Nandkishore Das the smallest house divided into 2 havelis 877 11 That this defendant has nothing to do with the eight annas interest in the properties given in schedule under than C and D relating to jagir and kasht lands which rightfully belonged to Nandkishore Das and has no concern with the properties noted in those schedules Paragraph 11 is rather ambiguously worded but it was conceded before us by the counsel for defendant No 5 that the latter had no claim to any interest in the properties set out in schedules other than schedules C and D Such being the purport of paragraphs 8 and 11 the decree should provide that defendant No 5 will be entitled only to a share in the properties set out in schedules C and D and will have no share in the properties set out in the other schedules Subject to this modification the decree of the High Court is affirmed and this appeal is dismissed There will be no order as to costs Appeal dismissed Agent for the legal representative of 4th respondent RN Sachthey

During the year 1954 1955 the appellant paid a sum equiva lent to 3 months basic wages as bonus to its monthly paid clerical staff These employees raised an industrial dispute claiming an additional bonus equal to 7 months basic wages The Industrial Tribunal to which the dispute was referred awarded additional bonus equal to 5 months basic wages The appellant contended that i since the element of risk in the business was great and the capital employed was small the Full Bench formula had to be materially altered and rates higher than 6 on paid up capital and 4 on reserves employed as working capital should be allowed ii a higher allowance ought to be made for rehabilitation and iii the entire surplus ought not to be treated as available for distribution as only a small percentage of the workmen had made the claim for bonus Held that since the claim for additional bonus was made only by a small percentage of the workmen the entire available surplus could not be treated as available in distributing bonus to them Not only the 882 staff members who had raised the claim but II 247 other workmen as well had contributed to the emergence of the surplus The sum still in the hands of the company could not be treated as a matter only between the company and these present claimants Indian Hume Pipe Co vs Their Workmen 1959 SUPP 2 SCR 948 LLI 357 applied Return on invested capital had always to provide for pure interest plus compensation for the risks of business In a particular industry where the risk was appreciably less than usual there would be good cause for providing less than 6 and in an industry where extraordinary risks were run more than 6 could reasonably be provided for There was no unusual risk run by the appellants in their business and no case was made out for allowing any higher return on the paid up capital or working capital There was no justification for compensation of the entrepreneur for the fact that with a small amount of capital considerable profits were earned As fixed capital was liable to gradual deterioration reserves had to be created out of profits for replacing any portion of it as soon as it became too deteriorated for efficient use It was neces 195 sary that the company s capital fund remained intact An amount reasonably sufficient for the notional requirement of rehabilitation during the relevant year was deducted as a prior charge in ascertaining surplus profits from which bonus could be paid The basis of the prior charge was the assumption that rehabilitation was a continuing process and needed allotment from year to year But in the present case the appellant had failed to make out any case for rehabilitation allowance in addition to the ordinary depreciation Associated Cement Company s case relied on

Appeal No 1 of 1959 Appeal by special leave from the award dated September 16 1957 of the Industrial Court Bombay in Misc Application IC No 20 of 1957 M C Setalvad Attorney General for India I M Nanavati section N Andley J B Dadachanji Rameshwar Nath and P L Vohra for the appellants C K Daphtary Solicitor General of India B R L Iyengar and K L Hathi for the respondent C K Daphtary Solicitor General of India H J Umrigar and R H Dhebar for the Intervener March 17 The Judgment of the Court was delivered by GAJENDRAGADKAR J This appeal by special leave is directed against the award passed by the Industrial Court Bombay by which a scheme for gratuity has been framed in favour of the workmen represented by the respondent Textile Labour Association Ahmedabad who are employed by the textile mills in Ahmedabad including the twenty appellant mills before us In order to appreciate the points of law raised by the appellants in the present appeal we ought to state at the outset the material facts leading to the present dispute in which the impugned scheme for gratuity has been framed On June 13 1950 the respondent gave notice under section 422 of the Bombay Industrial Relations Act 1946 Bom XI of 1947 hereinafter called the Act intimating to the Mill Owners Association at Ahmedabad hereinafter called the Association that it desired a change as specified in the annexure to the communication The annexure showed that the respondent wanted a change in that a scheme for gratuity should be framed wherever services of an employee are terminated by the mills on grounds of old age invalidity incapacity or natural death It was further claimed that the payment of gratuity in the said cases should be at the rate of one month s wages including dearness allowance per every year of service Some incidental demands were also specified in the annexure The 332 demand thus made was not accepted by the Association and so it was referred to the Industrial Court Pending the reference the Employees Provident Funds Act 1952 19 of 1952 came into operation on March 4 1952 and it was urged before the Industrial Court on behalf of the Association that since the statutory scheme of provident fund would soon become compulsory it would not be advisable to adjudicate upon the respondent s claim for the specified items of gratuity at that stage This argument was accepted by the Industrial Court it held that when the scheme envi saged by the new Act is introduced it would be possible to see from what date it would be operative and that if after the introduction of the said scheme it be found that a sufficient margin is left it would then be open to the respondent and the Association to make a fresh application for the institution of a gratuity fund either for all the employees or for the benefit of such of them as will have to retire within the next few years It was on this ground that the demand made by the respondent was rejected on April 18 1952 It appears that the prescribed scheme under the Provident Funds Act came into operation on October 1 1952 In June 1955 a fresh notice of change was given by the respondent to all the mills in respect of the demand for gratuity and the said demand became the subject matter of certain references to the Industrial Court at Bombay under section 73A of the Act At that time the association and the respondent had entered into an agreement to refer all their disputes to arbitration and in accordance with the spirit of the said agreement the references pending before the Industrial Court in respect of gratuity were withdrawn and referred to the Board of Arbitrators Before the Board it was however urged by the Association that so long as the award passed by the Industrial Court on the earlier reference was subsisting and in operation a claim for gratuity which was the subject matter of the said reference and award could not be properly or validly considered by the Board This objection was upheld by the Board and so it made no provision for gratuity The decision of the Board of Arbitrators in the said proceedings was published on July 25 1957 333 After the said decision was made and before it was published the respondent made the present application for modification of the earlier award under section 116A of the Act on July 6 1957 In this application the respondent alleged that there was sufficient justification for modifying the previous award and for introducing a scheme of gratuity as claimed by it In this application a demand for gratuity was made on the following lines 1 In the case of One month s basic wages and death while in average Dearness Allow service or becom ance per completed year of ing physically or service mentally unfit for further service 2 On voluntary re After 10 continuous years of tirement or re service in the company signation of an same as in 1 employee 3 On termination For less than 10 but more of service by the than 7 years at 34 rate of company 1 For less than 7 years but 5 years or more than 5 years at the 12 rate of 1 For more than 10 years continuous service as in 1 above It appears that in the application thus made a typing mistake had crept in which failed to type properly the third category of cases The respondent applied on August 21 1657 for amendment of the said typing mistake and the said amendment was naturally allowed It is the demand made by this application that is the subject matter of the present proceedings under section 116A of the Act In the present proceedings the Association did not file a written statement and in fact withdrew leaving it open to each mill to file a separate written statement of its own It appears that there was a difference of opinion amongst the constituents of the Association Accordingly written statements were filed on 43 334 behalf of the 65 constituent mills and the large majority of the said written statements raised some preliminary objections against the competence of the present proceedings and disputed the respondent s claim for gratuity also on the merits The industrial Court has overruled all the preliminary objections and on the merits it has framed a scheme for gratuity on industry cum region basis The award framing the said scheme was pronounced on September 16 1957 It is against this award that 21 out of the 65 mills have come to this Court by special leave One of the appellant mills has subsequently withdrawn from the appeal with the result that out of 65 mills 45 mills do not feel aggrieved by the award but 20 mills do and the contentions raised by them fall to be considered in the present appeal Before dealing with the merits of the points raised by the appellants it would be relevant to refer very briefly to the relevant provisions of the Act The Act has been passed by the Bombay Legislature because it thought that it was expedient to provide for the regulation of the relations of employers and employees in certain matters to consolidate and amend the law relating to the settlement of industrial disputes and to provide for certain other purposes With this object the Act has made elaborate provisions for the regulation of industrial relationships and for the speedy disposal of industrial disputes An industrial dispute under section 3 sub section 17 means any dispute or difference between an employer and employer or between employers and employees or between employees and employees and which is connected with any industrial matter The expression industrial matter has been inclusively defined in a very wide sense Approved Union in section 32 means a union on the approved list primary union under section 328 means a union for the time being registered as a primary union under the Act registered union under section 330 means a union registered under the Act while representative union under section 333 means a union for the time being registered as a representative union under the Act Section 339 defines wages as meaning remuneration of all 335 kinds capable of being expressed in terms of money and payable to an employee in respect of his employment or work done in such employment and includes inter alia any gratuity payable on discharge Section 42 sub section 2 provides that an employee desiring a change in respect of an industrial matter not specified in Schedule I or II shall give notice in the prescribed form to the employer through the representative of employees but shall forward a copy of the same to the Chief Conciliator the Conciliator of the industry concerned for the local area the Registrar the Labour Officer and such other person as may be prescribed Section 661 provides inter alia that if an employer and a representative union or aNy other registered union which is the representative of the employees by a written agreement agree to submit any present or future industrial dispute or class of such disputes to the arbitration of any person whether such arbitrator is named in such agreement or not such agreement shall be called submission We have already noticed that the Association and the respondent had entered into a submission in respect of several disputes which were referred to the Board of Arbitrators Section 73A is important for our purpose it deals with reference to arbitration by unions and provides that notwithstanding anything contained in this Act a registered union which is a representative of employees and which is also an approved union may refer any industrial dispute for arbitration to the industrial court subject to the proviso prescribed under it It is under section 73A that the reference was made on the earlier occasion to adjudicate upon the respondent s claim for a gratuity as specified in its notice of change That takes us to sections 116 and 116A Section 116 provides inter alia for the period during which an award would be binding Section 1161 lays down in regard to an award that it shall cease to have effect on the date specified therein and if no such date is specified on the expiry of the period of two months from the date on which notice in writing to terminate such an award is given in the prescribed manner by any of the parties thereto to the other party provided 336 that no such notice shall be given till the expiry of three months after the award comes into operation in other words the award cannot be terminated at least for three months after it has come into operation thereafter it may be terminated as prescribed by section 1161 With the rest of the provisions of section 116 we are not concerned in the present appeal SeCtion 116A1 prescribes inter alia that any party who under the provisions of section 116 is entitled to give notice of termination of an award may instead of giving such notice apply after the expiry of the period specified in sub section 2 to the industrial court making the award for its modification It is unnecessary to set out the other provisions of section 116A The award under appeal has been made by the industrial court on the application made by the respondent under section 11 6A The first contention raised before us by the learned Attorney General on behalf of the appellant is that the application for modification made by the respondent under section 116A is incompetent because what the respondent seeks is not any modification of the earlier award which is permissible under section 116A but a reversal and a revision of the said award which is not permissible under the said section The expression modification of the award may include alteration in the details of the award or any other subsidiary incidental matters In this connection it must be borne in mind that there is a radical difference between the meaning of the word change as distinguished from the meaning of the word modification Section 1162 allows for a change or modification of the registered agreement settlement or award in terms of the agreement and that clearly brings out the difference between the two concepts of change and modification In cases falling under section 1162 the agreements or settlements can be wholly revoked and fresh ones substituted in their place by consent or by consent they may be modified in subsidiary or incidental details Where the Legislature wanted to provide for change it has expressly done so in section 1162 by using both the words changed or modified 337 Section 116A however is confined only to modification of the award and not its change The same argument is placed in another form It is contended that it was not the intention of the Legislature to permit the proceedings under section 116A for change of policy underlying the Award or its essential framework Such a result can be achieved only by terminating the award under section 1161 and raising an industrial dispute as provided by the Act In support of this contention reliance has been placed on the observations made by Mukherjea J as he then was in the case of Be Delhi Laws Act 19121 where the learned judge stated that the word modification occurring in section 7 of the Delhi Laws Act did not mean or involve any change of policy but was confined to alteration of such a character which keeps the policy of the Act intact and introduces such changes as are appropriate to local conditions of which the executive government is made the judge In the same case Bose J observed that the power to restrict and modify does not import the power to make essential changes On the other hand the learned Solicitor General has contended that the context in which the word modification has been used in section 116A does not justify tne adoption of the limited meaning of the word modify for which the appellants contend The policy of the Act and the reason why section 116A has been enacted show that the word modification has been used in a sense larger than its ordinary meaning The Legislature realised that the procedure prescribed by section 116 sub section 1 for terminating the award which necessitates the other subsequent steps was apt to be dilatory and involved and so it has purported to provide for an effective alternative speedy remedy for the change of the award under section 116A In support of this argument reliance has been placed on the meaning assigned to the word modified in Words and Phrases where it is stated that though one of the primary meanings of the word modify is no doubt to limit or restrict it also means to vary and there is authority that it may even mean to extend or enlarge 2 1 1006 2 Words and Phrases by Roland Burrows Vol 338 It is common ground that the modification permissible under section 116A does not mean that the provisions of the award must always be reduced it may mean even increasing the provisions and so it is urged by the respondent that the word modification should receive a wider denotation in the context of section 116A This construction no doubt receives some support from the provision of section 116A that a party may apply for the modification of the award instead of giving notice for its termination and the latter clause tends to show that the procedure prescribed by section 116A is an alter native to the procedure prescribed by section 116 The industrial court was apparently inclined to put a wider denotation on the word modification used in section 116A We do not think it is necessary to decide this larger question of the construction of section 116A because in our opinion in the present case even if the limited and narrow construction suggested by the appellant is put on the word modification the respondent s application cannot be said to be outside the purview of the said section There is no doubt that the claim for gratuity made by the respondent in the earlier proceedings has been rejected by the industrial court and that is an award but whether or not the present application seeks for a modification of the said award within the meaning of section 116A would depend on what the industrial court had decided on the earlier occasion It is clear that the industrial court did not then consider the merits of the claim at all It upheld the Association s contention that the matter should not be decided then but may be considered later in view of the fact that the Employees Provident Funds Act had already been passed and the statutory scheme for provident funds was about to come into force It was on this ground alone that the industrial court rejected the claim as it was then made but it took the precaution of expressly adding that after the introduction of the provident funds scheme it would be open to the res pondent or the Association to make a fresh application for the institution of a gratuity fund as it may deem expedient to claim It would not be unreasonable we think to assume that when liberty was thus reserved 339 to the parties to make a fresh application the industrial court had presumably section 116A in mind In substance the effect of the order then passed was that the application was regarded as premature and liberty was reserved to the parties to renew the application if the statutory scheme was thought to be insufficient or unsatisfactory by either of them In such a case if the respondent applies to the industrial court for modification of its award it is difficult to accept the argument that the respondent seeks to alter the framework of the award or to change any principle decided in the award The true position is that by the present application the respondent is asking the court to consider the demand now that the scheme has come into force and is according to the respondent insufficient to meet the workmen s grievance What the industrial court then promised to consider after the scheme came into force is brought before it for its decision again That being the true nature of the award and the true scope of the prayer made by the respondent in its present application it is difficult to hold that the application is incompetent under section 116A The next argument which is pressed before us by the learned Attorney General is that the application for modification is incompetent in regard to matters not covered in the earlier proceeding We have already referred to the items covered in the earlier proceedings as well as those which are the subject matter of the present application It is true that the notice served by the respondent prior to the earlier reference specifically set out the claim for gratuity in four categories of cases of termination of services of the employees whereas in the present proceedings some other categories are included The objection raised against the competence of the present application purports to treat the earlier notice in a very technical way and confines the subsequent proceedings taken before the industrial court to the said four categories only The argument is that the cases of termination of services which were not specified in the earlier notice cannot now be brought before the industrial court tinder the guise of the modification of the award 340 If the modification of the award can be claimed under section 116A it must be claimed only in regard to the said four categories and no more This argument has been rejected by the industrial court and it has been held that in substance the earlier notice should be construed as constituting a claim for the scheme of gratuity in general The validity of this conclusion has been seriously challenged by the appellant There is no doubt that disputes in regard to industrial matters not covered by an award do not fall within the scope of section 116 of the Act and so if the claim for gratuity in regard to categories not specified in the earlier notice is deemed to be outside the said notice and the relevant reference proceedings could the respondent have made a claim in that behalf and ask for industrial adjudication without terminating the award It is difficult to answer this question in the affirmative It is well known that a scheme for gratuity is an integrated scheme and it covers all classes of termination of service in which gratuity benefit can be legitimately claimed Therefore when the industrial court refused to frame a gratuity scheme in regard to the four categories brought before it on the earlier occasion in substance its refusal amounted to a rejection of any scheme for gratuity at all otherwise it is very difficult to assume that having rejected the claim for gratuity in respect of the said four categories it would still have entertained a claim for gratuity on behalf of other categories not included therein That is why we are inclined to think that though in form the rejection of the demand for gratuity on the earlier occasion was in regard to the four categories specified in the notice in effect it was rejection in regard to the claim for a gratuity scheme itself It cannot be disputed that if the earlier demand had been for a gratuity scheme pure and simple and no categories had been specified in connection therewith the present application for the modification of the award coupled with a claim for a gratuity scheme in respect of all the categories specified in the application would be within the purview of section 116 of the Act That in substance is what has happened in this case 341 according to the finding of the industrial court on this point and having regard to the unusual circumstances of this case we see no reason to interfere with it Then it is urged that the industrial court has erred in law in framing a gratuity scheme even though the statutory scheme under the Employees Provident Funds Act has been in operation since 1952 The provident fund guaranteed by the statute under the statutory scheme is one kind of retirement benefit and since this retirement benefit is now available to the workmen it was not open to the industrial court to provide an additional gratuity scheme that in sub stance is the contention This contention has been frequently raised before the industrial courts and has been generally rejected The Employees Provident Funds Act has no doubt been passed for the institution of provident funds for employees covered by it and the statutory scheme for provident funds is intended to afford to the employees some sort of a retirement benefit but it cannot be ignored that what the statute has prescribed in the scheme is the minimum to which according to the Legislature the employees are entitled and so in all cases where the industrial courts are satisfied that a larger and higher benefit can be afforded to the employees no bar can be pleaded by virtue of the Provident Funds Act it is true that after the Act came into force the industrial courts would undoubtedly have to bear in mind the benefit of the statutory scheme to which the employees may be entitled and it is only after bearing that factor in mind and making due allowance for it that any additional scheme for gratuity can and must be framed by them but it is not open to an employer to contend that the Act excludes the jurisdiction of industrial courts to frame an additional scheme In this connection it may be pertinent to point out that section 17 of the Employees Provident Funds Act empowers the appropriate government to exempt from the operation of all or any of the provisions of the statutory scheme to establishments as specified in section 171a and b Under section 171b for instance any establishment may apply for exemption if its employees are in enjoyment of benefits in the nature of 44 342 provident fund pension or gratuity which in the opinion of the appropriate government are on the whole not less favourable to such employees than the benefits provided under the Act or any scheme in relation to employees in any other establishment of a similar characters This provision brings out two points very clearly If the benefits provided by the employer are not less favourable than the statutory benefits he may apply for exemption and the appropriate government may grant him such exemption If on the other hand the benefits conferred by him are less favourable than the statutory benefits he may not be entitled to any exemption in which case both the benefits would be available to the employees These provisions clearly indicate that the statutory benefits which in the opinion of the Legislature are the minimum to which the employees are entitled cannot create a bar against the employees claim for additional benefits from their employers In this connection we may incidentally refer to the decision of this Court in the case of Indian Hume Pipe Co Ltd vs The Workmen 1 where this Court has held that the statutory provision for the payment of retrenchment compensation under section 25F is no bar to a claim for gratuity The argument urged that the statutory retrenchment partook the character of gratuity and thus constituted a bar for the additional claim for gratuity was rejected We must accordingly hold that the Industrial Court was right in rejecting the appellants contention that the statutory provision for provident fund under the Employees Provident Funds Act is a bar to the present claim for a gratuity scheme The learned Attorney General has then challenged the validity of the scheme on the ground that the Industrial Court was in error in dealing with the problem on industry wise rather than unit wise basis He contends that the claim for gratuity is more allied to a claim for bonus and must therefore be dealt with on unit wise basis It is not disputed that the benefit of gratuity is in the nature of retiral benefit and there can be no doubt that before framing a scheme for gratuity industrial adjudication has to take into 1 343 account several relevant facts the financial condition of the employer his profit making capacity the profits earned by him in the past the extent of his reserves and the chances of his replenishing them as well as the claims for capital invested by him these and other material considerations may have to be borne in mind in determining the terms of the gratuity scheme This position has always been recognised by industrial courts Vide Arthur Butler Co Muzaffarpur Ltd And Arthur Butler Workers Union 1 It appears also to be well recognised that though the grant of a claim for gratuity must depend upon the capacity of the employer to stand the burden on a long term basis it would not be permissible to place undue emphasis either on the temporary prosperity or the temporary adversity of the employer In evolving a long term scheme a long term view has to be taken of the employer s financial condition and it is on such a basis alone that the question as to whether a scheme should be framed or nit must be decided and if a scheme has to be framed the extent of the benefit should be determined Vide Boots Pure Drug Co India Ltd And Their Workmen 2 For our present purpose it is really not necessary to embark upon the academic question as to whether gratuity is a part of deferred wage or not we will assume that it is not Even so it would not be reasonable to assimilate the character of the scheme for gratuity to that of a profit bonus and to seek to import the considerations of the Full Bench formula which governs the grant of bonus A claim for profit bonus is based on the assumption that the employees contribute at least partially to the profits made by the employer and that they are entitled to ask for a share in the said profits in order to bridge the gulf between the wages actually received by them and a living wage to which they are ultimately entitled A claim for gratuity is a claim for retiral benefit and it is strictly not a claim to receive a share of the profits at all and so there would be no scope for importing the several considerations which are relevant in determining the claim for profit bonus That is the view taken by the Labour Appellate Tribunal in Indian 1 2 344 Oxygen and Acetylene Co Ltd Employees Union And Indian Oxygen and Acetylene Co Ltd 1 and the said decision has been cited with approval by this Court in Express Newspapers Private Ltd vs The Union of India 2 Therefore we are not prepared to accept the argument that the claim for gratuity is essentially similar to a claim for profit bonus and like profit bonus it must always be considered on unit wise basis Incidentally we may add that even a claim for profit bonus can and often is settled on industry wise basis That still leaves the larger question to be considered whether the industrial court was in error in dealing with the claim for gratuity on industry wise basis It is urged for the appellants that an industry wise basis is wholly inappropriate in dealing with gratuity and it should not have been adopted by the industrial court It may be conceded that when an industry wise basis is adopted in dealing with a claim like gratuity often enough stronger units of the industry get a benefit while the weaker units suffer a disadvantage Take the case of a gratuity scheme If such a scheme is based on industry wise basis employees working under the stronger units do not get that amount of benefit of gratuity which they would have got if the question had been considered unit wise whereas employees working in weaker units get a better scheme than they would have got if the matter had been considered unit wise Such a result is inevitable in an industrywise approach This possible mischief can however be mitigated by taking a fair cross section of the industry or by working on a rule of averages after collecting the relevant facts of all the constituent units of the industry Even so if some of the units of the industry are very weak they are apt to suffer a disadvantage just as the very strong units in the industry are likely to get an undue advantage in the process but the question which calls for our decision is does this possible result mean that a scheme for gratuity should on principle not be framed on an industry wise basis but must always be framed on a unit wise basis There are several factors which militate against the appellants suggestion that unit wise basis is the only 1 2 at P 156 345 basis which should be adopted in such a case Equality of competitive conditions is in a sense necessary from the point of view of the employers themselves that in fact was the claim made by the Association which suggested that the gratuity scheme should be framed on industry wise basis spread over the whole of the country Similarly equality of benefits such as gratuity is likely to secure contentment and satisfaction of the employees and lead to industrial peace and harmony If similar gratuity schemes are framed for all the units of the industry migration of employees from one unit to another is inevitably checked and industrial disputes arising from unequal treatment in that behalf are minimized Thus from the point of view of both employers and employees industry wise approach is on the whole desirable It is well known that the Committee on Fair Wages which had examined this problem in all its aspects had come to the definite conclusion that in determining the capacity of an industry to pay it would be wrong to take the capacity of a particular unit or the capacity of all the industries in the country The relevant criterion should be the capacity of a particular industry in a specified region and it recommended that as far as possible the same wages should be prescribed for all units of that industry in that region This approach has been approved by this Court in the case of Express Newspapers Private Ltd 1 p 19 What is true about the wages is equally true about the gratuity scheme In the present economic development of our country we think industrial adjudication would hesitate to adopt an all India basis for the decision of an industrial dispute like that of gratuity and so on principle it would be difficult to take exception to the approach adopted by the industrial court in dealing with the present dispute In this connection it may be relevant to take notice of the fact that the wages of textile employees have been standardised on an industry wise basis Similarly dearness allowance has been fixed on the same basis and unsubstituted holidays have been prescribed on a like basis The Employees State Insurance 1 at P 156 346 Scheme Act 34 of 1948 is industry wise and retrenchment compensation has been statutorily standardised on the same basis Section 25F of Act XIV of 1947 What is more remarkable is the fact that the Association and the respondent had entered into an agreement regarding bonus for a period of five years and the gratuity scheme for the clerical and supervisory staff between the said parties is also based on the same industry wise approach by agreement between them The Association and the respondent can justly claim with some pride that in the past most of their disputes had been amicably settled It is only on the present occasion that owing to a difference of opinion amongst its constituent members that the Association withdrew from the proceedings and left it to the members to appear individually before the industrial court Even so 45 out of the 65 mills have accepted the award Under these circumstances the question which we have to decide is Did the industrial court err in law in adopting an industry wise basis in deciding the present proceedings It would no doubt have been open to the industrial court to deal with the dispute unit wise just as it was open to the court to deal with it on an industry wise basis As we have already indicated there are several factors in favour of adopting the latter approach though it may be conceded that by adopting the said course some hardship may conceivably be caused to the weakest units in the industry Having carefully considered this question in all its aspects we are_however not prepared to hold that the scheme of gratuity under appeal should be set aside on the ground that the industrial court ought to have adopted a unit wise approach In this connection it may not be out of place to observe that the cotton textile industry is the premier industry of our country and there is a concentration of a large number of mills in Ahmedabad A good many of them have capitalised large portions of reserves and documents produced in the present proceedings show that the production has steadily increased and has found a responsive market There is a gratuity scheme framed on an industry wise basis in operation in Bombay and a similar scheme appears to have been extended to 347 Nadiad and Khandesh In fact an award for gratuity has been made on an industry wise basis even in respect of the textile industry at Coimbatore Having regard to these facts we think the industrial court was right in observing that there was no justification why an important textile centre like Ahmedabad should not have a gratuity scheme when the needs of the labour require it and the industry can afford it It is true that in dealing with industrial disputes on industry cum region basis if the region covers the whole of the country industrial adjudication sometimes takes resort to the classification of the constituent units of the industry in question Industrial adjudication in regard to the fixation of wage structure in respect of newspapers and banks in the country is an illustration in point The need for such a classification is not as great when the region happens to be limited in area though even in respect of a limited area in a proper case industrial adjudication may adopt the course of classification In the present case the industrial court took the view that classification was not possible and would be inexpedient No classification was made in dealing with the textile mills in Bombay and the industrial court did not feel called upon to make a departure in respect of Ahmedabad We do not think that this conclusion suffers from any infirmity The scheme has been further attacked on the ground that before framing it the industrial court has not considered the extent of the liabilities already imposed on the industry It has been strenuously argued before us that in assessing the extent of the liabilities the acutual liabilities accrued as the result of the scheme has not been taken into account and the serious strain imposed on the industry by the imposition of excise duty has also been overlooked on the other hand undue importance has been attached to bonus shares and no account has been taken of the industry s obligation to contribute to the State Insurance Scheme We are not impressed by these arguments The argument about the actual liability accrued is really the oretical and cannot have much practical significance If it is suggested that in 348 framing a scheme of gratuity the capacity to pay should be determined only if the employer can set apart a fund to cover the whole of the liability theoretically accrued then gratuity schemes can be very rarely framed Such schemes are long term schemes and a fund to cover the total liability in that behalf must inevitably be built up in course of time year by year In regard to the excise duty the industrial court has rightly pointed out that the imposition of a higher duty was the conseqence of the excessive increase in prices of mill cloth and in fact it was levied to mop off those extra profits When the prices fall down it is not unlikely that the excise duty may be reduced In any case the obligation to pay excise duty or to contribute to the insurance scheme though perhaps relevant may not have a material bearing on the framing of the scheme of gratuity Then as to the bonus shares it is not right to contend that the industrial court has attributed undue importance to them All that it has observed is that the issue of bonus shares by a large majority of the mills in addition to good dividends during the war and post war period is an index to the prosperity enjoyed by the cotton textile industry in Ahmedabad In our opinion no criticism can be made against this statement In this connection it may perhaps be pertinent to observe that the statutory ceiling placed on the agent s commission may in due course assist the mills to some extent in meeting their liability under the scheme The last argument urged against the validity of the scheme is based on the assumption that in working out the preliminary figures before framing the scheme the industrial court has committed an error What the industrial court has done is to take the information collected by the Association on the earlier occasion to compare it with the statement prepared by the respondent and to make a rough estimate about the extent of the industry s liability under the scheme In considering these statements it is important to emphasise that the Association s calculations have been made not on the basis of basic pay but on the basis of pay including dearness allowance and that naturally has made considerable additions to the 349 amounts involved The scheme framed is by reference to the basic wages This position is not disputed The other material point which deserves to be mentioned is that the calculations made by the Association proceed on the assumption that most of the employees would seek to retire from employment as soon as they complete fifteen years service Such an assumption seems to us to be not warranted at all It is common ground that employee generally seek employment in textile industry between 18 and 20 years and the age of superannuation is 60 On an average each emp loyee would work 35 to 40 years and so it would be unrealistic to make calculation on the basis that each one of the employees retires as soon as he completes 15 years of service In the absence of better employment in Ahmedabad it is quite likely that most of the employees would stick on to their jobs until the age of superannuation The figures collated are in respect of the years 1953 1954 and 1955 They are collated in seven different columns and ultimately the percentages of persons who retired during the three respective years are worked out as at 313 413 and 384 The industrial court has observed that the largest number of persons retired voluntarily on payment of gratuity because there was an agreement between the Association and the respondent whereby the respondent agreed to rationalisation which involved retrenchment of staff on condition that the surplus staff retrenched would be given gratuity It also appears that the retired workmen included a number of employees who voluntarily resigned because they had not completed 15 years of service and were not entitled to gratuity It is on a consideration of all the relevant facts that the industrial court came to the conclusion that the number of persons who would have been entitled to gratuity under a normal gratuity scheme would probably not have exceeded 2 of the labour force If it is assumed as we think it can be safely assumed that on an average an employee works 35 to 40 years with his employer the said percentage deduced by the industrial court cannot be said to be erroneous Even so the scheme framed by the industrial court has provided inter alia one month s basic 45 350 wage for each completed year of service for the period before the coming into force of the Employees Provident Funds Act 1952 and half a month s basic wage for each completed year of service thereafter subject to a maximum of fifteen months basic wages to be paid to the employee or his heirs or executors or nominees as the case may be This provision which amounts to a departure from the Bombay scheme of gratuity brings out the fact that the provisions made by the Employees Provident Funds Act have been duly taken into account by the industrial court We are therefore satisfied that the scheme framed by the industrial court does not suffer from any infirmities as alleged by the appellants The result is the appeal fails and is dismissed with costs Appeal dismissed

After the Police action in the State of Hyderabad in August 1948 the Nizam by a Farman dated September 19 1948 invested the Military Governor with all authority for the administration of the State and by a later Farman declared that the said authority includes and has always included authority to make Regulations By virtue of the said powers the Military Governor promulgated the Hyderabad Abolition of jagirs Regulations of 1358 Fasli Thereafter on the termination of the appointment of the Military Governor the Nizam by another Farman appointed Mr Vellodi as his Chief Minister and directed that all the powers of administration vested in the Military Governor before the said date are exercisable by the Chief Minister Thus empowered the Chief Minister promulgated the Hyderabad jagirs Commutation Regulation XXV of 1358 Fasli Thereafter with the commencement of the Constitution of India the territory of the State of Hyderabad became part of the Union of India and the President certified the two Regulations under article 316 of the Constitution By the Constituion First Amendment Act of 1951 articles 31A and 31B and Sch IX were inserted into the Constitution and the two Regulations were included in the said schedule The appellant whose properties had been taken over by the jagir Administrator under the Abolition Regulation and who had in the meantime filed a writ petition in the High Court by his amended petition after the amendment of the Constitution claimed that sections 41c and 42 of the Commutation Regulation and section 64 of the Abolition Regulation were confiscatory in nature and amounted to colourable and fraudulent exercise of legislative power The High Court found against him and rejected his petition Held that the decision of the High Court must be affirmed There can be no question that the Nizam at the time when he executed the Farmans and prior to it was an absolute ruler vested with all authority executive legislative and judicial and had unquestionable powers to modify or extinguish any of the rights of his subjects and the language of the Farmans leaves no manner of doubt that he thereby delegated the entirety 312 of his authority and powers to the Military Governor and thereafter to the Prime Minister The doctrine of invalidity of legislation enacted in colourable exercise of legislative authority can apply only where the legislature is subject to constitutional restrictions But where the powers of the legislature suffers from no limitations constitutional or otherwise that doctrine can have no application No question of infringement of fundamental rights could arise as i the impugned Regulations were pre Constitution legislations and the appellant s rights had already been determined before the Constitution ii article 32B of the Constitution exempts the Regulations from such a challenge Keshavan Madhava Menon vs State of Bombay referred to

Appeal No 92 of 1954 Appeal from the judgment and order dated January 28 1953 of the Calcutta High Court in Award Case No 105 of 1952 M C Setalvad Attorney General for India B Sen P D Himatsinghka and B P Maheshwari for the appellant N C Chatterjee M 0 Poddar and Ganpat Rai for the respondent January 20 The Judgment of the Court was delivered by DAS C J This is an appeal filed upon a certificate of fitness granted by the High Court of Calcutta impugning the judgment pronounced by the said High Court on January 23 1953 declaring null and void an award No 209 of 1952 made by the Bengal Chamber of Commerce in case No 855 of 1951 whereby they ordered the respondent company to pay to the appellant company a sum of Rs 195000 besides interest and costs The facts giving rise to the present appeal are simple and may briefly be summarised as follows On April 6 1951 the appellant company entered into a contract with the respondent company for the supply of 5000 maunds of Nikhli andor Ashuganj Jute on certain prices according to quality shipment during July andor August 1951 guaranteed That contract which was entered into by bought and sold notes exchanged between the parties through brokers con tained a very wide arbitration clause When shipping documents were presented to the respondent company by the bankers of the appellant company they were not honoured on the plea that the same were not in order and the respondent company failed to take delivery of the goods The last date on which the 81 documents were so presented was September 17 1951 On September 26 1951 the appellant company through their solicitors wrote to the respondent company intimating that they had exercised their option of cancelling the contract and demanding the payment of the sum of Rs 195000 as damages on the basis of the difference between the contract price and the market price of the goods as on September 17 1951 The respondent company having by their letter dated October 25 1951 denied their liability to pay any amount the appellant company on November 2 1951 referred the dispute to the arbitration of the Bengal Chamber of Commerce in terms of the arbitration clause contained in that contract The respondent company submitted to the jurisdiction of the Tribunal of arbitration by appearing and adducing evidence before it On February 29 1952 the arbitrators made their award by which they allowed the claim of the appellant company in full with interest and costs The award having been filed in the Calcutta High Court on April 23 1952 the respondent company on June 91952 filed an application in that Court praying inter alia that the award be declared null and void and be set aside The main ground urged in that application was that the award was a nullity in that the contract containing the arbitration clause was void under the provisions of the Raw Jute Central Jute Board and Miscellaneous Provisions Act 1951 W Ben VI of 1951 which was then in force In order to appreciate the points raised before the High Court and before us it is necessary at this stage to refer to some of the statutory provisions bearing on the question To regulate the prices of jute and to empower the Government to fix its maximum prices the West Bengal Legislature passed an Act called the West Bengal Jute Control of Prices Act 1950 W Ben VI of 1950 which came into force on March 151950 On December 141950 the Government of West Bengal promulgated an Ordinance called the Raw Jute Central Jute Board and Miscellaneous Provisions 82 Ordinance 1950 XVII of 1950 for the better regulation of the jute trade The preamble to that Ordinance recited that as the owners of jute mills were not being able to secure adequate supplies of jute on the maximum prices fixed under the West Bengal Jute Control of Prices Act 1950 it had become expedient to set up a Central Jute Board in West Bengal for ensuring an equitable supply of raw jute to the owners of the jute mills That Ordinance consisted of only 15 sections Section4 of that Ordinance provided for the constitution of the Central Jute Board Section 5 was expressed in the following terms 5 1 No person shall sell or agree to sell raw jute to the owner of a jute mill and no owner of a jute mill shall buy or agree to buy raw jute save and except in pursuance of a contract for the sale or the supply of raw jute entered into in the manner provided in section 6 2 Any contract entered into for the sale or the supply of raw jute with the owner of a jute mill save and except in the manner provided in section 6 shall be void and of no effect 3 Any person contravening the provisions of sub section If shall be guilty of an offence under this Ordinance and shall be punishable with imprisonment which may extend to six months or with fine or with both Section 6 laid down the manner in which all contracts for the sale or supply of raw jute with the owners of jute mills were to be entered into Section 7 ran as follows 7 1 No person shall deliver or cause to be delivered to the owner of a jute mill and no owner of a jute mill shall accept or cause to be accepted any raw jute save and except in pursuance of a contract for the sale or the supply of raw jute entered into in the manner provided in section 6 2 Any person contravening the provisions of sub section If shall be guilty of an offence under this Ordinance and shall be punishable with imprisonment which may extend to six months or with fine or with both 83 3 The provisions of section 5 section 6 and this section shall have effect on and from the appointed day The expression appointed day occurring in section 7 3 quoted above was thus defined in section 2 1 of that Ordinance 2 1 I appointed day means the date specified by the State Government by notification in the Official Gazette as the appointed day for the purpose of this Ordinance By a notification dated December 29 1950 published in an extraordinary issue of the Calcutta Gazette of the same date December 30 1950 was specified as the appointed day for the purposes of sections 5 6 and 7 of the said Ordinance The said Ordinance was subsequently replaced by an Act called the Raw Jute Central Jute Board and Miscellaneous Provisions Act W Ben Act VI of 1951 hereinafter referred to as the Act which came into force on March 21 1951 The first fifteen sections of the Act were almost verbatim reproductions of the fifteen sections of the Ordinance and only one new section was added as the sixteenth section reading as follows 16 The Central Jute Board constituted any rule made any notification or licence issued any direction given any contract entered into any minimum price fixed anything done or any action whatsoever taken under the Raw Jute Central Jute Board and Miscellaneous Provisions Ordinance 1950 shall on the said Ordinance ceasing to operate be deemed to have been constituted made issued given entered into fixed done or taken under this Act as if this Act had commenced on the 14th day of December 1950 The Act was in force at all times material to these proceedings though the same was subsequently repealed on August 5 1952 It may be mentioned here that both when the Ordinance was in force and after the Act had come into operation the Central Jute Board issued a series of circulars by which it authorised the owners of jute mills to purchase raw jute up to the extent of quotas 84 respectively allotted to them through normal trade channels subject to their furnishing particulars of the contracts and of deliveries under them to the Board The contract in question was entered into through normal trade channels and not in the manner specified in the said Act or the rules framed thereunder Indeed it is conceded that no application had been made by the appellant company to the Board under section 61 of the Act that the Board did not under section 62 of the Act select any jute mills as buyers of these goods that the respondent company had not signified in writing to the Board its intention to buy the raw jute in question that the Board did not specify a date within which the contract was to be entered into and that finally the delivery period fixed in the contract was in contravention of the provisions of the Act and the rules and therefore the contract was void under section 52 of the Act if sections 5 6 and 7 were in force at the date of the contract The respondent company s aforesaid application for setting aside the award having come on for hearing the learned Single Judge sitting on the Original Side reported the matter under r 2 of ch V of the Original Side Rules to the Chief Justice for forming a larger Bench for hearing of the said application A Special Bench was accordingly constituted by the Chief Justice and the application came up for hearing before that Bench Three points were urged before the High Court namely 1 that the Act was ultra vires the Bengal Legislature 2 that even if the Act were intra vires sections 5 6 and 7 of the Act were never brought into force and 3 that there was a subsequent independent agreement to refer the disputes to the arbitration of the Bengal Chamber of Commerce The High Court negatived all the contentions raised by the appellant company and by its judgment dated January 23 1953 allowed the application and declared the award to be null and void but directed the parties to bear their own costs This appeal as already stated has been filed against the judgment of the High Court upon a certificate of fitness granted by the High Court 85 The learned Attorney General appearing in support of this appeal has urged before us only the second point urged before the High Court namely that even if the Act were intra vires sections 5 6 and 7 had never been brought into force and therefore the contract in question containing the arbitration clause was valid and consequently the award was binding and enforceable He does not dispute that by virtue of section 16 of the Act the notification issued on December 19 1950 under section 21 of the Ordinance has to be deemed to have been issued under the Act but he contends that even so the notification dated December 29 1950 cannot be read as having brought sections 5 6 and 7 of the Act into force for it in terms specified December 30 1950 as the appointed day for the purposes of sections 5 6 and 7 of the Ordinance He urges that this Court has to take the notification made under the Ordinance as it finds it and then under section 16 of the Act to deem it to have been made under the Act According to him the fiction created by section 16 ends as soon as the notification is deemed to have been made under the Act and goes no further He concludes on the authority of the decisions in Hamilton and Co vs Mackie and Sons 1 and T W Thomas Co Limited vs Portsea Steamship Company Limited 2 that on a plain reading of it the notification when it is deemed to have been made under the Act makes no sense for it does not purport to bring any of the sections of the Act into force but expressly brings sections 5 6 and 7 of the Ordinance into force He submits that it is not for the court to alter the terms of the notification so as to make it possible to read it as a notification made under the Act We are unable to accept this line of argument The decisions relied on by the learned Attorney General can have no application to the pre sent case In those cases there was no statutory provision for deeming the provision of the charter party referring all disputes under the charter party to arbitration as an integral part of the provisions of the bill of lading and therefore the only thing to be done in those cases was to lift bodily the relevant provision 1 2 86 of the charter party and to insert it in and to read it as a part of the bill of lading It was held that so read it became insensible for an arbitration clause referring all disputes arising out of the charter party was wholly out of place and meaningless as a term of the bill of lading A cursory perusal of section 16 will however show that there are two fictions created by that section One is that the Act shall be deemed to have commenced on December 14 1950 and the other is that the notification issued under the Ordinance shall be deemed to have been issued under the Act If the Act fictionally commenced on December 14 1950 then the Ordinance would have to be treated as not promulgated at all for the two could not have coexisted and when the Act provided that the notification which for identification is described as having been issued under the Ordinance should be deemed to have been made under the Act then unless we read the word Ordinance 7 as Act we do not give full effect to the twin fictions created by the Act In other words the creation of the statutory fictions compels us to adopt the principle of mutatis mutandis and to substitute the word Act for the word Ordinance used in the notification so as to give full effect to the fictions created by the statute We see no reason in support of the contentions of the Attorney General that the fiction raised by section 16 stops short at mere issuing of the notification The ambit of the fiction appears to us to cover not only the issuance of the notification but to extend to our reading it as having been one issued under the Act We cannot read it as having been issued under the Act unless we read the word Ordinance used in the notification as Act No other point has been urged before us and for reasons stated above this appeal must be dismissed In view of the circumstances referred to in the judgment of the High Court and appearing in the record we make no order for costs of this appeal Appeal dismissed

Under Hindu law though an illegitimate son of a Sudra cannot enforce partition during his father s lifetime he can enforce partition after his father s death if the father was separate from his collaterals and has left separate property and legitimate sons

Appeals Nos 195 and 196 of 1959 Appeals by special leave from the Award dated April 15 1957 of the Third Industrial Tribunal West Bengal in Case No VIII 7 of 1956 B Sen P K Chakravarty and B N Ghosh for the appellants in C A No 195 of 59 and respondents in C A No 196 of 59 N C Chatterjee D L Sen Gupta and B P Maheshwari for the respondents in C A No 195 of 59 and appellants in C A No 196 of 59 March 30 The Judgment of the Court was delivered by WANCHOO J These are two appeals by special leave against the same award of the Third Industrial Tribunal West Bengal and shall be disposed of by this judgment Appeal No 195 is by Messrs Burn and Co Limited hereinafter called the company and Appeal No 196 is by the workmen of Messrs Burn and Co Limited hereinafter called the workmen There were disputes between the company and the workmen on various matters which were referred to the tribunal for adjudication Of these disputes only two now survive in the two appeals The company s appeal is with respect to that part of the award which deals with incentive bonus to the clerical and subordinate staff while the workmen s appeal is with respect to that part of the award which appeals with the cash benefit of Annas eight per head per working day for the period the canteen was not in operation We shall first take up the company s appeal The company has introduced incentive bonus for manual workers including Sarkars and Checkers but there is no provision for incentive bonus to the clerical and subordinate staff The workmen therefore claimed that these two categories should also be given incentive bonus like the manual workers and pointed out 425 that in other concerns this was done The company resisted the claim on two grounds i that the clerical staff got what is known as the Bengal Chamber of Commerce dearness allowance which is higher than the dearness allowance paid to the manual workers and ii that the clerical staff and the subordinate staff do not actually produce anything and if they are given incentive bonus it will mean that they would be paid on the production of others namely the manual workers The tribunal was of the view that the fact that the clerks got the Bengal Chamber of Commerce dearness allowance was no reason for their total exclusion from the benefit of the incentive bonus scheme It also pointed out that the subordinate staff did not get the Bengal Chamber of Commerce dearness allowance and there was no difference between their dearness allowance and the dearness allowance of the manual workers Further the tribunal was conscious of the fact that the clerical staff and the subordinate staff do not directly produce goods but that in its opinion was no justification for their total exclusion particularly when other comparable concerns like the Indian Iron and Steel Co Ltd at Burnpur Bridge and Roof Co India Limited Howrah and Tatas were paying incentive bonus to the clerical and subordinate staff also It therefore ordered that the company should extend the scheme of incentive bonus to the clerical and subordinate staff also and lay down the rates and conditions for the same The main contention of the company before us is that as the clerical staff and the subordinate staff have no part in actual production they should not be given any incentive bonus particularly as their work does not increase at all because of the increased production It is however difficult to accept that there will be no increase in the work of the clerical staff in particular and also of the subordinate staff because of higher production though it may be accepted that the increase may not be in proportion to the increase of production It is also true that the clerical staff and the subordinate staff do not directly produce goods like manual workers and that may be a reason 426 for treating them somewhat differently in the matter of incentive bonus and that is what the tribunal seems to have done for it has directed the company to extend the scheme of incentive bonus to the clerical and subordinate staff and to lay down the rates and conditions of the same and has not said that exactly the same rates and conditions should apply to the clerical and subordinate staff as apply to the manual workers But there can be no doubt that economically speaking the clerical staff and the subordinate staff also take part in the production and there is no reason therefore for excluding them altogether from the scheme of incentive bonus Besides as the tribunal has pointed out in other comparable concerns incentive bonus is being paid to the clerical and subordinate staff The fact that dearness allowance was paid to the clerical staff at a higher scale is also in our opinion no reason for depriving them altogether of the benefits of the incentive bonus scheme It is also urged on behalf of the company that the introduction of incentive bonus is a management function and the tribunal should not impose it on the management and reference in this connection has been made to Messrs Titaghur Paper Mills Co Ltd vs Their Workmen 1 In the present case however the incentive bonus scheme has already been introduced by the company for the major part of its workmen and all that is now asked for is that the benefit of the scheme should be extended to the remainder of the workmen This prayer is in our opinion very different from asking a tribunal to impose an incentive bonus scheme for the first time in a concern We can see no reason why where an incentive bonus is in force in a concern for the majority of its workmen the tribunal should not be able to extend the same to the remainder of the workmen We therefore see no reason to interfere with the order of the tribunal in this behalf Turning now to the appeal of the workmen with respect to eight annas tiffin allowance during the period the canteen was riot working it is enough to say that this matter was examined at length by the 1 1959 SUPP 2 SCR 1012 427 tribunal It has dealt with the history relating to this tiffin allowance and exhaustively considered all the points raised on behalf of the workmen Nothing has been brought to our notice which would induce us to interfere with the considered order of the tribunal in this behalf All the points that Sri Chatterjee has raised on behalf of the workmen have been dealt with by the tribunal and the conclusion it has reached is that halving regard to the circumstances the workmen were not eligible to the tiffin allowance of annas eight per head per working day All that we need say is that the correspondence between the workmen and the company shows that though the workmen were keen on the provision of a canteen before the tiffin allowance was granted by the award dated July 24 1953 their keenness disappeared after the award The company seems to have taken steps even before the award to start a canteen and pursued the matter vigorously after the award but the workmen started objecting to the arrangements made and some of the objections were fantastic It seems that having been given the tiffin allowance they preferred to have it rather than go to the canteen In the circumstances we are of opi nion that the conclusion of the tribunal is correct and there is no reason for interference The appeals are hereby dismissed but in the circumstances we pass no order as to costs Appeals dismissed

This was an appeal by certain textile mills of Ahmedabad against a scheme for gratuity awarded by the Industrial Court The Labour Association the respondent gave a notice of change under section 422 of the Bombay Industrial Relations Act 1946 Bom XI of 1947 intimating the Mill Owners Association that they wanted a scheme for gratuity and mentioned four categories of termination of service in the annexure This demand was refused and so referred to the Industrial Court under section 73A of the Act Pending the reference the Employees Provident Funds Act 1952 19 of 1952 came into operation and the Industrial Court on an objection by the Mill Owners Association held that it was inadvisable to proceed with the reference and that a fresh application should be made if necessary after the scheme envisaged by the Act is introduced and rejected the respondent s demand Thereafter a fresh notice of change was given by the respondent and there were certain references to the Industrial Court in respect of the demand The parties came to an agreement to refer all their disputes to arbitration the references were withdrawn and the disputes were referred to the Board of Arbitrators Before the Board the Mill Owners Association took the objection that so long as the award of the Industrial Court dismissing the earlier reference subsisted the claim for gratuity could not be considered by it That objection was upheld by the Board and it made no provision for gratuity Thereupon the respondent applied for the modification of the award under section 116A of the Act and the Industrial Court by its award which is the subject matter of the present appeal framed a scheme for gratuity on an industry cum region basis Held that the decision of the Industrial Court was correct and must be upheld Regard being had to the true nature of its earlier award and the scope of the application for its modification it could not be said that the respondent was seeking to alter the framework or change any of the principles of that award and the application under section 116A of the Act must be held to be competent 330 A scheme for gratuity is by its nature an integrated scheme and covers all classes of termination of service where gratuity benefit can be legitimately claimed and the refusal of the Industrial Court in the earlier award amounted to a refusal to frame any scheme at all The statutory provident fund created by the Employees Provident Funds Act 1952 could be no bar to the respondent s claim for a gratuity scheme although there can be no doubt that in awarding such a scheme Industrial Courts must make due allowance for it Provisions of section 17 of the said Act clearly indicate that the statutory benefits under the Act are the minimum to which the employees are entitled and that they are no bar to additional benefits claimed by the employees Indian Hume Pipe Co Ltd vs Their Workmen 1960 2 SCR 32 referred to It was not correct to say that the claim for gratuity was essentially similar to a claim for profit bonus and must always be considered on unitwise basis The benefit of gratuity is in the nature of a retiral benefit and before framing such a scheme industrial adjudication has to take into account such relevant factors as the financial condition of the employer his profit making capacity the profits earned by him in the past the extent of his reserves and the chances of his replenishing them as well as the claims for capital invested by him and in evolving a long term scheme a long view of the employer s financial condition should be taken and on that basis alone the feasibility of a scheme and the extent of the benefit to be given should be determined Arthur Butler Co Muzaffarpur Ltd and Arthur Butler Workers Union and Boots Pure Drug CO India Ltd vs Their Workmen referred to Even assuming that gratuity is no part of deferred wage it would not be reasonable to assimilate the scheme for gratuity to that of profit bonus or to apply the principles of the Full Bench formula applicable to the latter A claim for gratuity is strictly not a claim to receive a share of the profits at all Express Newspapers Private Ltd vs The Union of India and Indian Oxygen and Acetylene Co Ltd Employees Union vs Indian Oxygen and Acetylene Co Ltd referred to It was not correct to say that an industry wise basis is wholly inappropriate in dealing with gratuity or that the Industrial Court was in error in adopting that basis Although some hardship to the weaker units in the industry may not be avoided there were several factors in its favour both from the point of view of employers and employees Since in the present state of economic development in the country the propriety of the adoption of an all India basis for a scheme of gratuity may be open to doubt no exception can on principle be taken to the industry cum region basis adopted in the instant case 331 Express Newspapers Private Ltd vs The Union of India applied

Appeal No 124 of 1959 Appeal by special leave from the Award dated February 8 1957 of the Additional Industrial Tribunal Delhi in Misc I D Case No 422 of 1956 Jawala Prasad Chopra and J K Haranandani for the appellants C K Daphtary Solicitor General of India H J Umrigar M K Ramamurthi V A Seyid Muhamad and M R Krishna Pillai for the respondent March 22 The Judgment of the Court was delivered by GAJENDRAGADKAR J This appeal by special leave is directed against the order passed by the Additional Industrial Tribunal Delhi directing the appellant Ms New India Motors Private Ltd to reinstate its former employee K T Morris the respondent in his original post as field service representative and to pay him his back wages from the date of his dismissal till the date of his reinstatement This award has been made on a complaint filed by the respondent against the appellant under section 33A of the XIV of 1947 hereinafter called the Act It appears that before joining the appellant the respondent was working with a firm in Calcutta prior to that he was field service representative of Ms Premier Automobiles Ltd Bombay The respondent joined the services of the appellant sometime in May 1954 as Works Manager Before he joined the services of the appellant he had been told by the appellant by its letter dated March 27 1954 that the appellant would be willing to pay him Rs 350 per month and something more by way of certain percentage on business He was however asked to interview the 352 appellant an interview followed and the respondent was given a letter of appointment on May 6 1954 By this letter he was appointed as Workshop Manager in the appellant s firm on three months probation subject to the terms and conditions specified in the letter of appointment exhibit W 2 The respondent continued in this post till February 28 1955 when he was given the assignment of the appellant s field service organiser with effect from March 1 1955 A letter of appointment given to him on 28 2 1955 set forth the terms and conditions of his new assignment It appears that on April 18 1956 the management of the appellant called for an explanation of the respondent in respect of several complaints An explanation was given by the respondent It was however followed by another communication from the appellant to the respondent setting forth specific instances of the respondent s conduct for which explanation was demanded The respondent again explained and disputed the correctness of the charges On June 30 1956 the respondent s services were terminated on the ground that the appellant had decided to abolish the post of field service representative It is this order which gave rise to the respondent s complaint under section 33A of the Act The complaint was filed on July 18 1956 The respondent invoked section 33A because his case was that at the time when his services were terminated an industrial dispute was pending between the appellant and 7 of its employees and the respondent was one of the workmen concerned in the said industrial dispute The said industrial dispute had reference to the termination of the services of the said 7 employees who were working with the appellant as apprentices On their behalf it was alleged that their termination of service was improper and illegal and that was referred to the industrial tribunal for its adjudication on August 20 1955 The said dispute was finally decided on January 2 1957 With the merits of the said dispute or the decision thereof we are not concerned in the present appeal According to the respondent since he was a workman concerned in the said dispute section 331a applied and it was not open to the appellant to terminate his 353 services save with the express permission in writing of the authority before which the said dispute was pending It was on this basis that he made his complaint under section 33A of the Act Before the tribunal the appellant urged that the respondent was not a workman as defined by the Act and on the merits it was contended that the appellant had to abolish the post of the field service organiser owing to the fact that a part of the agency work of the appellant had been lost to it On the other hand the respondent contended that he was a workman under the Act and the plea made by the appellant about the necessity to abolish his post was not true and genuine His grievance was that his services were terminated solely because he had taken interest in the complaint of the 7 apprentices which had given rise to the main industrial dispute and had in fact given evidence in the said dispute on behalf of the said apprentices The tribunal has found that the respondent is a workman under the Act that there was no evidence to justify the appellant s contention that it had become necessary for it to abolish the respondent s post and that it did appear that the respondent had been discharged because the appellant disapproved of the respondent s conduct in supporting the 7 apprentices in the main industrial dispute As a result of these findings the tribunal has ordered the appellant to reinstate the respondent The question as to whether the respondent is a workman as defined by section 2s of the Act is a question of fact and the finding recorded by the tribunal on the said question after considering the relevant evidence adduced by the parties cannot be successfully challenged before us in the present appeal The respondent has given evidence as to the nature of the work he was required to do as field service organiser The letter of appointment issued to him in that behalf expressly required inter alia that the respondent had if need be to check up and carry out necessary adjustments and repairs of the vehicles sold by the appellant to its customers and to obtain signatures of responsible persons on the satisfaction 354 forms which had been provided to him The respondent swore that he looked after the working of the workshop and assisted the mechanics and others in their jobs He attended to complicated work himself and made the workmen acquainted with Miller s special tools and equipment needed for repairs and servicing of cars He denied the suggestion that he was a member of the supervisory staff On this evidence the tribunal has based its finding that the respondent was a workman under section 2s and we see no reason to interfere with it Then as to the appellant s case that it had to abolish the post of the respondent as it had lost the agency of DeSoto cars from Premier Automobiles there is no reliable evidence to show when this agency was actually lost Besides the fact that the appellant has appointed a Technical Supervisor after discharging the respondent is also not without significance Furthermore the appellant is still the agent for Plymouth and Jeeps and the tribunal is right when it has found that it still needed a field representative to look after servicing of sold cars at outside stations On the other hand the evidence of the respondent clearly shows that he supported the case of the 7 apprentices and that provoked the appellant to take the step of terminating his services The process of finding fault with his work appears to have commenced after the appellant disapproved of the respondent s conduct in that behalf We are therefore satisfied that the tribunal was right in coming to the conclusion that the dismissal of the respondent is not sup ported on any reasonable ground and in fact is due to the appellant s indignation at the conduct of the respondent in the main industrial dispute between the appellant and its 7 employees If that be the true position the industrial tribunal was justified in treating the dismissal of the respondent as mala fide It has however been urged before us by the appellant that the complaint made by the respondent under section 33A is not competent It is common ground that a complaint can be made under section 33A only if section 33 has been contravened and so the appellant s argument is that B 331a is inapplicable because the respondent 355 was not a workman concerned in the main industrial dispute and as such his dismissal cannot be said to contravene the provisions of the said section Indeed the principal point urged before us by the appellant is in regard to the construction of section 331a of the Act Was the respondent a workman concerned with the main industrial dispute That is the point of law raised for our decision and its decision depends upon the construction of the relevant words used in section 331a Section 331a as it stood prior to the amendment of 1956 provided inter alia that during the pendency of any proceedings before a tribunal no employer shall alter to the prejudice of the workmen concerned in the said dispute the conditions of service applicable to them immediately before the commencement of the said proceedings save with the express permission in writing of the tribunal Section 33 has been modified from time to time and its scope has been finally limited by the amendment made by Act 36 of 1956 With the said amendments we are however not con cerned The expression the workmen concerned in such dispute which occurred in the earlier section has not been modified and the construction which we would place upon the said expression under the unamended section would govern the construction of the said expression even in the amended section What does the expression workmen concerned in such dispute mean The appellant contends that the main dispute was in regard to the discharge of 7 apprentices employed by the appellant and it is only the said 7 apprentices who were concerned in the said dispute The respondent was not concerned in the said dispute and so the termination of his services cannot attract the provisions of section 331a Prima facie the argument that workmen concerned in such dispute should be limited to the workmen directly or actually concerned in such dispute appears plausible but if we examine the scheme of the Act and the effect of its material and relevant provisions this limited construction of the clause in question cannot be accepted 356 Let us first consider the definition of the industrial dispute prescribed by section 2k It means inter alia any dispute or difference between employers and workmen which is connected with the employment or non employment or the terms of employment or with the conditions of labour of any person 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 331a Section 18 of the Act is also relevant for this purpose It deals with persons on whom awards are binding Section 183 provides inter alia that an award of a tribunal which has become enforceable shall be binding on a all parties to the industrial dispute b all other parties summoned to appear in the proceedings as parties to the dispute unless the tribunal records the opinion that they were so summoned without proper cause and c where a party referred to in cl a or cl 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 It is thus clear that the award passed in an industrial dispute raised even by a minority union binds not only the parties to the dispute but all employees in the establishment or part of the establishment as the case may be at the date of the dispute and even those who may join the establishment or part subsequently Thus the circle of persons bound by the award is very much wider than the parties to the industrial dispute This aspect of the 357 matter is also relevant in construing the material words in section 331a In this connection the object of section 33 must also be borne in mind It is plain that by enacting section 33 the Legislature wanted to ensure a fair and satisfactory enquiry of the industrial dispute undisturbed by any action on the part of the employer or the employee which would create fresh cause for disharmony between them During the pendency of an industrial dispute status quo should be maintained and no further element of discord should be introduced That being the object of section 33 the narrow construction of the material words used in section 331a would tend to defeat the said object If it is held that the workmen concerned in the dispute are only those who are directly or immediately concerned with the dispute it would leave liberty to the employer to alter the terms and conditions of the remaining workmen and that would inevitably introduce further complications which it is intended to avoid Similarly it would leave liberty to the other employees to raise disputes and that again is not desirable That is why the main object underlying section 33 is inconsistent with the narrow construction sought to be placed by the appellant on the material words used in section 331a Even as a matter of construction pure and simple there is no justification for assuming that the workmen concerned in such disputes must be workmen directly or immediately concerned in the said disputes We do not see any justification for adding the further qualification of direct or immediate concern which the narrow construction necessarily assumes In dealing with the question as to which workmen can be said to be concerned in an industrial dispute we have to bear in mind the essential condition for the raising of an industrial dispute itself and if an industrial dispute can be raised only by a group of workmen acting on their own or through their union then it would be difficult to resist the conclusion that all those who sponsored the dispute are concerned in it As we have already pointed out this construction is harmonious with the definition prescribed by section 2s and with the provisions contained in section 18 of the Act Therefore 46 358 we are not prepared to hold that the expression workmen concerned in such dispute can be limited only to such of the workmen who are directly concerned with the dispute in question In our opinion that expression includes all workmen on whose behalf the dispute has been raised as well as those who would be bound by the award which may be made in the said dispute It appears that the construction of the relevant clause had given rise to a divergence of opinion in industrial courts but it may be stated that on the whole the consensus of opinion appears to be in favour of the construction which we are putting on the said clause In Eastern Plywood Manufacturing Co Ltd vs Eastern Plywood Manufacturing Workers Union 1 the appellate tribunal has referred to the said conflict of views and has held that the narrow construction of the clause is not justified The High Court of Madras appears to have taken the same view Vide Newtone Studios Ltd vs Ethirajulu TR 2 On the other hand in The New Jehangir Vakil Mills Ltd Bhavnagar vs NL Vyas Ors 3 the Bombay High Court has adopted the narrow construction but for reasons which we have already explained we must hold that the Bombay view is not justified on a fair and reasonable construction of the relevant clause In the result the appeal fails and is dismissed with costs Appeal dismissed

In respect of a dispute between the appellant company and the respondent company which was referred to the arbitration of the Bengal Chamber of Commerce in terms of the arbitration clause contained in the contract entered into on April 6 1951 an award was made on February 29 1952 allowing the claim of the appellant The respondent made an application in the High Court for having the award set aside on the ground inter alia that the contract was void under the provisions of the Raw jute Central jute Board and Miscellaneous Provisions Act 1951 inasmuch as it had not been entered into in the manner specified in sections 5 6 and 7 of the Act as required therein On December 14 1950 the Government of West Bengal had promulgated an Ordinance called the Raw jute Central jute Board and Miscellaneous Provisions Ordinance 1950 for the better regulation of the trade and on December 291950 a notification was issued specifying December 30 1950 as the appointed day for the purposes of sections 5 6 and 7 Of the said Ordinance Subsequently the Ordinance was replaced by the Act which by section 16 provided any notification issued under the Raw Jute Central jute Board and Miscellaneons Provisions Ordinance 1950 shall on the said Ordinance ceasing to operate be deemed to have been issued under this Act as if this Act had commenced on the 14th day of December 1950 It was contended for the appellant that the notification dated December 29 1950 could not be read as having brought sections 5 6 and 7 Of the Act into force because on a plain reading of it the notification did not purport to bring any of the sections of the Act into force but expressly brought sections 5 6 and 7 of the Ordinance into force and that the said sections of the Act not having been brought into force the contract in question was valid and consequently the award was binding and enforceable Held that in order to give full effect to the two legal fictions created in section 16 of the Act that the Act shall be deemed to have commenced on December 14 195o and that the notification issued under the Ordinance shall be deemed to have 80 been issued under the Act the principle of mutatis mutandis has to be adopted and the word Act substituted for the word Ordinance used in the notification dated December 29 1950 Consequently the provisions of sections 5 6 and 7 Of the Act were applicable to the contract in question

Appeal No 141 of 1959 Appeal by special leave from the Award dated July 19 1958 of the Fourth Industrial Tribunal West Bengal in Case No VIII 240 16657 C K Daphtary Solicitor General of India Vidya Sagar and B N Ghosh for the appellants P K Sanyal and P K Chakravarty for R C Datta for the respondents March 23 The Judgment of the Court was delivered by DAS GUPTA J On December 13 1957 the Government of West Bengal referred under section 10 of the Industrial Disputes Act the following dispute between MS Northbrook Jute Co Ltd and Dalhousie Jute Mills Who are appellants before us and their workmen 47 366 Do the proposals of rationalisation in the above two mills involve any increase in workload If so what relief the workmen are entitled to Almost a month before this the proposal of introducing a rationalisation scheme in time mills of these companies had been considered at an extraordinary meeting of the Works Committee and the Committee had agreed to the proposal A notice tinder section 9A of the was then given by the companies to the Unions of their workmen and it was because the workmen objected to the introduction of the rationalisation scheme that the dispute arose and was refer red by the Government to the Tribunal On December 16 when the above reference was pending before the Tribunal the management of these mills put the rationalisation scheme into operation but the workmen refused to do the additional work placed on them by the scheme Later the same day the mills declared a lock out Work was however resumed again in all departments excepting the weaving and finishing departments on December 20 and in these two departments on December 21 as a result of a settlement arrived at between the workmen represented by their Unions and the Mills as regards the introduction of the rationalisation scheme But a dispute arose as regards the payment of wages to workmen for their dues during the period when the mills were closed viz 16th December to 20th December in the weaving and finishing departments and 16th December to 19th December in all other departments This dispute was also referred to the Tribunal by an order of the Government dated February 1 1958 The earlier issue as regards the proposed introduction of the rationalisation scheme was also amended in view of what had happened in the meantime by substituting therefore Have the rationalisation effected in the above two mills since 16th December 1957 involved any increase in the workload To what relief the workers are entitled to We are no longer concerned with this issue as the decision of the Tribunal thereon which is against the workmen is no longer disputed As regards the other two disputes the Tribunal has made an award in favour of the 367 workmen that they are entitled to wages for the period of absence above mentioned On this question the workmen s case before the Tribunal was that the reason that workmen could no do any work on the days in question was the illegal look out by the employers the employer s case was that the workmen had struck work illegally and so the closure of the mills on the 16th of December after such strike was not illegal or unjustified The Tribunal was of opinion that the eimloyer s attempt to put the rationalisation scheme into effect on the 16th December was a contravention of section 33 of the and so the workmen s refusal to works in accordance with that scheme was not an illegal strike and the employer s closure of the mills was illegal Learned counsel for the employer mills has tried to convince us that they had acted in accordance with law in introducing the rationalisation scheme on the 16th December He pointed out that the Works Committee duly constituted under the Act had considered the scheme and approved of it and argued that as the workmen s representatives on the Works Committee bad agreed to the scheme the workmen themselves should be taken to have agreed to it That the workmen s representatives on the Works Committee agreed to the introduction of the scheme by the companies whenever they desired is established by a copy of the resolution of the Works Committee It has to be noticed however that the workmen s representatives on the Works Committee do not represent the workmen for all purposes but only for the purpose of the functions of the Works Committee Section 32 of the Act sets out the functions of the Works Committee in these words It shall be the duty of the Works Committee to promote measures for securing and preserving amity and good relations between the employer and workmen and to that end to comment upon matters of their common interest or concern and endeavor to compose any material difference of opinion in respect of such matters 368 The language used by the Legislature makes it clear that the Works Committee was not intended to supplant or supersede the Unions for the purpose of collective bargaining they are not authorised to consider real or substantial changes in the conditions of service heir task is only to smooth away frictions that might rise between the workmen and the management in day to day work By no stretch of imagination can it be said that the duties and functions of the Works Committee included the decision on such an important matter as the alteration in the conditions of service by rationalisation To promote measures for securing and preserving amity and good relations between the employer and workmen is their real function and to that end they are authorised to comment upon matters of their common concern or interest and endeavour to compose any material difference of opinion in respect of such matters The question of introduction of rationalisation scheme may be said to be a matter of common interest between the employers and workmen but the duty and authority of the Works Committee could not extend to anything more than making comments thereupon and to endeavour to compose any material difference of opinion in respect of such matters Neither comments nor the endeavour could be held to extend to decide the question on which differences have arisen or are likely one way or the other It was rightly pointed out by the Labour Appellate Tribunal in Kemp and Company Ltd vs Their Workmen that the Works Committees are normally concerned with problems arising in the day to day working of the concern and the functions of the Works Committee are to ascertain the grievances of the employees and when occasion arises to arrive at some agreement also But the function and the responsibility of the works committee as their very nomenclature indicates cannot go beyond recommendation and as such they are more or less bodies who in the first instance endeavour to compose the differences and the final decision rests with the union as a whole The fact that the workmen s representatives on the Works Committee agreed to the introduction of the 1 369 rationalisation scheme is therefore in no way binding on the workmen or their Union The next argument was that whatever alteration was effected in the conditions of service was made on the date when notice under section 9A was given and that being before the 13th December there was no contravention of section 33 There is in our opinion no substance in this contention Section 9A in accordance with which the notice was given provides that No employer who proposes to effect any change in the conditions of service applicable to any workmen in respect of any matter specified in the Fourth Schedule shall effect such change a without giving to the workmen likely to be affected by such a notice in the prescribed manner of the nature of the change proposed to be effected or b within twenty one days of giving such notice With the proviso to the section we are not concerned What is important to notice is that in making this provision for notice the Legislature was clearly contemplating three stages The first stage is the proposal by the employer to effect a change the next stage is when he gives a notice and the last stage is when he effects the change in the conditions of service on the expiry of 21 days from the date of the notice The conditions of service do not stand changed either when the proposal is made or the notice is given but only when the change is actually effected That actual change takes place when the new conditions of service are actually introduced It necessarily follows that in deciding for the purpose of section 33 of the Act at what point of time the employer alters any conditions of service we have to ascertain the time when the change of which notice under section 9A is given is actually effected If at the time the change is effected a proceeding is pending before a Tribunal section 33 is attracted and not otherwise The point of time when the employer proposes to change the conditions of service and the point of time when the notice is given areequally irrelevant It was further contended that in any case the alteration was not to the prejudice of the workmen How such a contention can be seriously made is difficult to 370 understand The whole basis of the scheme was so to allocate the machines to workmen as to enable fewer workmen to work the machines than the number previously required so that surplus workmen could be discharged The object was to decrease the cost of production The method adopted for attaining the object was to obtain more work from the workmen for approximately the same wages However laudable the object be it cannot be doubted for a moment that the scheme prejudiced the workmen seriously Mr Fraser the company s witness stated in his evidence that while previously for every machine in the batching department there were two hands now there are two hands for two machines In giving the reasons for the introduction of the scheme he said we had surplus labour in both the mills The company was losing heavily Till then we depended on natural wastage and did not think of rationalisation in November last year the decision was taken to take action on rationalisation Rationalisation which was introduced had therefore two effects first that some workers would become surplus and would face discharge and secondly the other workmen would have to carry more workload The introduction of the rationalisation scheme was therefore clearly an alteration of conditions of service to the prejudice of the workmen The alteration was made on the 16th December when reference as regards the scheme had already been made and was pending before the Industrial Tribunal The Tribunal has therefore rightly held that this introduction was a contravention of section 33 Lastly it was contended that even if the introduction of the rationalisation scheme was a contravention of section 33 the workmen s remedy lay in applying under section 33A and that they were not entitled to strike work Section 33A no doubt gives the workmen aggrieved by the contravention by the employer of section 33 to apply to the Tribunal for relief but the existence of this remedy does not mean that the workmen were bound to work under the altered conditions of service even though these were in clear contravention of law When they refused to do the additional work which the 371 rationalisation scheme required them to do they refused to do work which the employer had no right in law to ask them to do It is difficult to say that this amounted to a strike by the workmen but even if it could be said to be a strike such strike was certainly not illegal or unjustified Our conclusion therefore is that the Tribunal was right in its opinion that the closure of the mills by the employer amounted to an illegal lock out and the workmen unable to work in consequence of the lockout are entitled to wages for the period of absence used by such lock out The appeal is therefore dismissed with costs Appeal dismissed

There can be no doubt from the point of view of Economics that the clerical and subordinate staff of an industry like its manual workers contribute to its production and there can therefore be no reason for excluding them wholly from the benefits of a scheme of incentive bonus The fact that the clerical staff are paid dearness allowance at a higher scale can be no reason for their exclusion 11956 424 Where as in the instant case the company had already Introduced a scheme of incentive bonus for the majority of its workmen there could be no reason why the Industrial Tribunal should not be able to extend that scheme to the clerical and subordinate staff Ms Titaghur Paper Mills Co Ltd vs Their Workmen 1959 Supp 2 SCR 1012 considered

Civil Appeal No 483 of 1958 Appeal by special leave from the decision dated March 20 1956 of the Labour Appellate Tribunal of India Madras in Appeal No Bom 90 of 1952 arising 145 out of the Award dated December 28 1951 of the Industrial Tribunal Madras in Industrial Dispute No 48 of 1951 February 11 12 M C Setalvad Attorney General of India B Ganapathy lyer and G Gopalkrishnan for the appellants This appeal arises from an Industrial Dispute between Ms Swadesamitran and their workmen Three items of dispute were referred for adjudication to the Industrial Tribunal at Madras One of them being whether the retrench ment of 39 workmen affected by the appellant in May 1951 was justified and if not what relief the retrenched workmen were entitled to The modified award directed the reinstatement of 15 of the retrenched workmen and the question is whether such direction is correct It has to be remembered that the direction was given on March 28 1956 in respect of retrenchment made in May 1951 with half their back wages The Tribunal erred in applying the rule last come first go as if it were an inflexible rule The management is the best Judge as to who were fit to be retained and who should be sent out No doubt if the selection of persons disclosed that the management was guilty of any unfair labour practice that would have been ground for interference Tribunal and the Appellate Tribunal found that the action of management in selecting the personnel was not at all malafide It cannot be said to be unreasonable if persons are selected for discharge because they had reached an age which would affect their efficiency and so fit for being retrenched It cannot be the rule that once a workmen is entertained he should be kept on for ever Moreover the evidence shows that a committee of three sat for the purpose of making a selection and they applied their minds to the problem and took into account all factors viz length of service efficiency defect in eye sight with regard to very small types and general aptitude for the new kind of work on lino machines Further the workmen had themselves settled accounts with the management and drawn whatever was due to them and their claims having been satisfied it was unfair 19 146 and unjust to direct that they should be reinstated in their old jobs with back wages The others were found inefficient and irregular in attendance and therefore the selection by the management should not have been interfered with at all by the Tribunal Principles of social justice do not compel an employer to keep an inefficient or unsuitable and superannuated workman in his service The principle of I last come first go should not have been so strictly applied on the facts of this case The Labour Appellate Tribunal erred in law in directing reinstatement when it did not differ from the conclusion of the Industrial Tribunal that the strike of the respondents was unjustified and that the appellants had acted bona fide in coming to the conclusion that retrenchment of 39 workmen was necessary It is only if the Industrial Tribunal was satisfied that in retrenching its employees the appellant had acted malafide that it would be open to the Tribunal to interfere with the order of retrenchment passed by the appellant The order of reinstatement in substance is inconsistent with the findings about the bona fides of the appellant The Tribunal further erred in preparing a pooled seniority list to determine the seniority The management must be given the discretion to run the business in its best interests and it is not for the Tribunal to say that the work done in the several sub sections of composing department was similar and the workmen can be inter shifted Merely because no record was maintained as to the fitness or otherwise of each individual worker prior to the retrench ment it was not right to infer that there was no material for the management to judge of the comparative fitness of the workmen under it In entertaining the grievance of the workmen against their order of retrenchment the Labour Appellate Tribunal has exceeded its jurisdiction Retrenchment is and must be held to be a normal management function and privilege and as soon as a case for retrenchment has been made out liberty and discretion must be left to the employer to select which employee should in fact be retrenched In holding an enquiry about the Validity of reasonableness of retrenchment of certain 147 specified persons the appellate tribunal had trespassed on the management function and as such exceeded its jurisdiction C Anthoni Pillai President City Printing Press Workers Union for the respondents was not called upon to reply March 1 The Judgment of the Court was delivered by GAJENDRAGADKAR J This appeal by special leave arises from an industrial dispute between Messrs Swadesamitran Ltd Madras hereinafter called the appellant and their workmen hereinafter called the respondents On November 3 1951 three items of dispute were referred for adjudication to the Industrial Tribunal at Madras by the Madras Government under section 101c of the Act XIV of 1947 hereinafter called the Act One of these items was whether the retrenchment of 39 workmen effected by the appellant in May 1951 was justified and if not what relief the retrenched workmen were entitled to It would be relevant to mention briefly the material facts leading to this dispute It appears that on August 26 1950 the respondents addressed a charter of demands to the appellant in which eleven demands were made and they intimated to the appellant that if the said demands were not granted they would go on strike The appellant pointed out to the respondents that it was working at a loss and that proposals for retrenchment and rationalisation were then under its active consideration It promised the respondents that as soon as its financial condition improved their demands would be Sympathetically considered Thereupon the demands were withdrawn but on January 24 1951 another communication was addressed by the respondents making as many as thirteen demands coupled with the same threat that if the said demands were not granted the respondents would go on strike A copy of this communication was sent to the State Govern ment which was requested to refer the said demands for adjudication to the industrial tribunal The Government however referred the matter to the Conciliation Officer who found that the demands were 148 not justified He accordingly made a report on February 22 1951 Immediately thereafter the respondents wrote to the Government repeating their request for reference but on April 24 1951 the Government ordered that no case for reference had been made Meanwhile the appellant was taking steps to effect retrenchment in the staff owing to the steep rise in the prices of newsprint and scarcity of supplies the imposition by the Government of India of a price page schedule and the progressive introduction of mechanisation in the composing section by installation of lino type machines When the respondents came to know about this their Union called for a strike ballot and as a result of the ballot the respondents decided to go on strike A notice in that behalf was issued on May 9 1951 The appellant then appealed to the respondents not to precipitate matters promised to consider their demands as soon as its financial position improved and warned them that if they refused to report for work in accordance with the strike notice it would deem to amount to resignation of each one of the strikers of his job The Conciliation Officer who was approached by the appellant also advised the respondents not to go on strike Nevertheless the respondents went on strike on May 30 1951 Before the respondents thus went on strike services of 39 members of the staff had been terminated by a notice as a measure of retrenchment with effect from May 18 1951 It is the retrenchment of these 39 workmen which led to the industrial dispute with which we are concerned in the present appeal Before this dispute was thus referred for adjudication the respondents had filed a writ petition in the Madras High Court asking for a writ calling upon the Government to make a reference under section 101c of the Act This writ application was allowed but on appeal the Court of Appeal modified the order issued by the original court by substituting a direction that the Government should discharge its duties under section 125 of the Act On June 12 1951 the strike was called off by the respondents and they offered to resume work but by then the appellant had engaged 149 new hands and so it was able to re engage only some of the respondents who offered to resume work The failure of the appellant to take into service all its workmen is another item of dispute between the parties but with the said dispute the present appeal is not concerned It was as a result of the order passed by the Madras High Court that the present dispute was ultimately referred for adjudication to the industrial tribunal The tribunal held that the strike declared by the respondents was not justified and that the appellant was justified in retrenching 39 workmen in question According to the tribunal though in retrenching 39 workmen the principle of I last come first go was not strictly followed the appellant was justified in departing from the said principle because it was entitled to give preference to persons mechanically inclined and having good eyesight That is why the tribunal rejected the respondents plea that in effecting retrenchment the appellant had indulged in any unfair labour practice Since the tribunal was satified that the retrenchment of 39 workmen was effected in the usual course for good and sufficient reasons it ordered that the said retrenched workmen were not entitled to any relief The respondents challenged this award by an appeal before the Labour Appellate Tribunal The appellate tribunal was satisfied that the impugned finding about the bona fides and the validity of the retrenchment was not justified It therefore remanded the proceedings to the industrial tribunal for deciding afresh the four points formulated by it Two of these points are relevant for our purpose One was whether the formula I last come first go had been complied with and if it was not the tribunal was asked to scrutinise in relation to each individual whether the reasons for breaking the said rule were sufficient in his case and the other was whether the management was motivated by any unfair labour practice or victimisation Pursuant to this order of remand the industrial tribunal allowed an opportunity to the appellant to lead evidence and on considering the evidence it came to the conclusion that the appellant had made 150 out a case of necessity for retrenchment and that it had justified the extent of retrenchment as pleaded by it No mala fides in that behalf had been established according to the tribunal It however held that the principle of last come first go had not been observed in selecting the personnel for retrenchment and it rejected the explanation given by the appellant in retrenching 15 out of the said 39 workmen That is why it ordered theappellant to reinstate the said 15 workmen without any back wages In regard to the remaining 24 workmen no order was made by the tribunal in respect of any compensation payable to them On receipt of the findings recorded by the tribunal the matter went back to the Labour Appellate Tribunal Both parties had filed objections against the findings in question The appellate tribunal considered these objections and held that the appellant had made out a case for retrenching 39 of its employees but it agreed with the industrial tribunal that the principle of last come first go had not been observed and that no case had been made out to depart from the said principle That is why it confirmed the finding of the tribunal that the 15 named employees should be reinstated and added that they should be given half the amount of their back wages In regard to the remaining 24 workmen who had been retrenched the appellate tribunal directed that they should be awarded compensation at the rate of half a month s wages including dearness allowance for each year of service It is against this decision that the present appeal has been preferred by special leave The first point which the learned Attorney General has raised before us in this appeal on behalf of the appellant is that the Labour Appellate Tribunal erred in law in directing reinstatement when it did not differ from the conclusion of the industrial tribunal that the strike of the respondents was unjustified and that the appellant had acted bona fide in coming to the conclusion that retrenchment of 39 workmen was necessary It is urged that it is only if the industrial tribunal is satisfied that in retrenching its employees the appellant had acted mala fide that it would be open to the 151 tribunal to interfere with the order of retrenchment passed by the appellant and the argument is that s the order of reinstatement in substance is inconsistent with the findings about the bona fides of the appellant In our opinion this argument is misconceived There are two aspects of the question with which the appellate tribunal was concerned in the present proceedings Was the appellant justified in coming to the conclusion in exercise of its management function and authority that 39 workmen had to be retrenched if yes has the retrenchment been properly carried out The first question has been answered in favour of the appellant by both the tribunals below It has been found that the respondents strike was unjustified and that for the reasons set out by the appellant retrenchment to the extent pleaded by it was also called for and justified It is in regard to this aspect of the matter that the appellant s bonafides have Do doubt been found but the bonafides of the appellant in coming to the conclusion that 39 workmen had to be retrenched have no material bearing nor have they any relevance in fact with the question as to whether the appellant acted fairly or reasonably in selecting for retrenchment the 39 workmen in question It is in regard to this latter aspect of the matter that concurrent findings have been recorded against the appellant that it acted without justification and the retrenchment of the 15 workmen in question amounts to an unfair labour practice Therefore it is not possible to accept the argument that there is any inconsistency in the two findings They deal with two different aspects of the matter and so they cannot be said to conflict with each other at all It is then urged that in entertaining the grievance of the respondents against their order of retrenchment the Labour Appellate Tribunal has exceeded its jurisdiction The case presented before us on this ground assumes that retrenchment is and must be held to be a normal management function and privilege and as soon as a case for retrenchment had been made out liberty and discretion must be left to the employer to select which employees should in fact be retrenched In holding an enquiry about thevalidity 152 or reasonableness of retrenchment of certain specified persons the appellate tribunal has trespasser on the management function and as such has exceeded its jurisdiction We are not impressed by this argument It may be conceded that if a case for retrenchment is made out it would normally be for the employer to decide which of the employees should be retrenched but there can be no doubt that the ordinary industrial rule of retrenchment is I last come first go and where other things are equal this rule has to be followed by the employer in effecting retrenchment We must however add that when it is stated that other things being equal the rule I last come first go must be applied it is not intended to deny freedom to the employer to depart from the said rule for sufficient and valid reasons The employer may take into account considerations of efficiency and trustworthy character of the employees and if he is satisfied that a person with a long service is inefficient unreliable or habitually irregular in the discharge of his duties it would be open to him to retrench his services while retaining in his employment employees who are more efficient reliable and regular though they may be junior in service to the retrenched workmen Normally where the rule is thus departed from there should be reliable evidence preferably in the recorded history of the workmen concerned showing their inefficiency unreliability or habitual irregularity It is not as if industrial tribunals insist inexorably upon compliance with the industrial rule of retrenchment what they insist on is on their being satisfied that wherever the rule is departed from the departure is justified by sound and valid reasons It therefore follows that wherever it is proved that the rule in question has been departed from the employer must satisfy the industrial tribunal that the departure was justified and in that sense the onus would undoubtedly be on the employer In dealing with cases of retrenchment it is essential to remember that the industrial rule of I last come first go is intended to afford a very healthy safeguard against discrimination of workmen in the matter of retrenchment and so though the employer may depart from the rule he should able to justify 153 the departure before the industrial tribunal whenever an industrial dispute is raised by retrenched workmen on the ground that their impugned retrenchment amounts to unfair labour practice or victimisation It appears that in 1946 the Government of India in its Department of Labour formulated certain rules for retrenchment and commended them to the attention of all employers of labour and trade unions so that disputes on that score may be minimised Rule 4 amongst the said rules was that as a rule discharge of personnel who are still surplus to requirements should be in accordance with the principles of short service that is to say last man engaged should be the first man to be discharged Due notice or wages in lieu thereof should be given The same principle has been accepted and applied by industrial tribunals on several occasions Vide Indian Navigation Industrials Alleppey And Certain Workmen 1 Cuttack Electric Supply Co Ltd And Their Workmen 2 and Shaparia Dock and Steel Company And Their Workers 3 We ought to add that the same principle has now been statutorily recognised by section 25g of the Act This section provides inter alia that where any workman in an industrial establishment who is a citizen of India is to be retrenched the employer shall ordinarily retrench the workman who was the last person to be employed in the same category unless for reasons to be recorded the employer retrenches any other workman in other words by this section a statutory obligation is imposed on the employer to follow the rule and if he wants to depart from it to record his reason for the said departure In support of his contention that the Labour Appellate Tribunal has exceeded its jurisdiction in examining the merits of the retrenchment effected by the appellant the learned Attorney General has relied upon certain observations made by this Court in the case of J K Iron Steel Co Ltd vs Its Workmen 4 Dealing with the argument of the appellant that the order of retrenchment should be left to the management and that the decision by the management that 1 1952 II LLJ 611 2 3 1954 II LLJ 208 4 Civil Appeal No 266 of 1958 decided on 11 2 1960 20 154 some employees are better qualified than others should not be questioned by the adjudicator unless he came to the conclusion that the preferential treatment was deemed to be malafide this Court observed that the proposition involved in the argument was unexceptionable it was added that if the preferential treatment given to juniors ignores the well recognized principles of industrial law of first come last go without any acceptable or sound reasoning a tribunal or an adjudicator will be well justified to hold that the action of the management is not bona fide We do not see how either of the two propositions set out in this judgment can support the appellant s argument before us The position under the industrial law seems to us to be fairly clear The management has the right to retrench the workmen provided retrenchment is justified In effecting retrenchment the management normally has to adopt and give effect to the industrial rule of retrenchment For valid reasons it may depart from the said rule If the departure from the said rule does not appear to the industrial tribunal as valid or satisfactory then the action of the management in so departing from the rule can be treated by the tribunal as being mala fide or as amounting to unfair labour practice in other words departure from the ordinary industrial rule of retrenchment without any justification may itself in a proper case lead to the inference that the impugned retrenchment is the result of ulterior considerations and as such it is mala fide and amounts to unfair labour practice and victimisation That is precisely what this Court has held in the case of J K Iron Steel Co Ltd 4 We are therefore satisfied that there is no substance in the appellant s contention that the tribunals below have exceeded their jurisdiction in enquiring into the validity of the retrenchment of the 39 workmen in question There is one more point which may briefly be mentioned in this connection After the matter was remanded the industrial tribunal has carefully considered the evidence given by the appellant In fact it is clear from the record that at the original enquiry no evidence had been led by the appellant to justify 1 Civil Appeal No 266 of i958 decided on 11 2 6o 155 the departure from the rule even though it was conceded that the rule had not been followed The Labour Appellate Tribunal therefore fairly gave a chance to the appellant to justify the said departure and accordingly evidence was led by the appellant This evidence consists of the testimony of Mr Lakshminarasimlian who has been working with the appellant for 32 years He works as an Assistant Editor and in addition attends to press work He stated that he was having a personal supervision of the entire work and that when retrenchment was actually effected a committee was appointed consisting of himself the Manager Mr Ayyangar and the Press Manager Mr Rajagopala Ayyangar At the time of the enquiry the Manager was dead According to the witness the committee took the advice of the Foremen of various sections in deciding which workmen should be retained and which should be retrenched The witness gave evidence about the defects in the cases of the 39 workmen who were retrenched and in support of his oral testimony he filed two statements T 1 and T 2 giving material particulars in respect of all the said workmen It is admitted that no records were made at the time when the cases of these workmen were examined and so the witness was driven to give evidence merely from memory The tribunal has held that having regard to the nature of the defects attributed to the several workmen to which the witness deposed it was impossible to accept his testimony as satisfactory and the tribunal was also not satisfied that it was likely that the witness should have any personal knowledge in regard to the said defects In the result the tribunal rejected this testimony It also examined some cases in detail and it was satisfied that the reasons given for retrenching them were demonstrably unsatisfactory It is on these findings that the tribunal came to the conclusion that the appellant had not shown any valid or reasonable ground for departing from the usual rule and this finding has been accepted by the Labour Appellate Tribunal In such a case we do not see how in the present appeal the appellant can successfully challenge the correctness of the conclusion that in substance the retrenchment 156 of the 15 workmen amounts to an unfair labour practice and victimisation That leaves two minor questions which were formulated for our decision by the learned Attorney General He contended that even if the impugned retrenchment of the 15 workmen in question was not justified reinstatment should not have been directed some compensation instead should have been ordered and in the alternative he argued that the order directing compensation to the remaining 24 retrenched work men was also not justified We do not see any substance in either of these two contentions Once it is found that retrenchment is unjustified and improper it is for the tribunals below to consider to what relief the retrenched workmen are entitled Ordinarily if a workman has been improperly and illegally retrenched he is entitled to claim reinstatement The fact that in the meanwhile the employer has engaged other workmen would not necessarily defeat the claim for reinstatement of the retrenched workmen nor can the fact that protracted litigation in regard to the dispute has inevitably meant delay defeat such a claim for reinstatement This court has consistently held that in the case of wrongful dismissal discharge or retrenchment a claim for reinstatement cannot be defeated merely because time has lapsed or that the employer has engaged fresh hands Vide The Punjab National Bank Ltd vs The All India Punjab National Bank Employees Federation 1 and National Transport and General Co Ltd vs The Workmen 2 Then as to the compensation awarded to the 15 and 24 workmen respectively it is a matter of discretion and as such is not open to challenge in the present appeal In the result the appeal fails and is dismissed with costs Appeal dismissed 1 1960 I SCR 806

The respondent workman was dismissed by his employer the appellant pending adjudication of anindustrial dispute and without the permission of the Industrial Tribunal relating to the discharge of 7 other employees working as apprentices under the appellant The respondent raised a dispute before the Industrial Tribunal under section 33A of the and his case was that he was concerned in the dispute relating to the said 7 employees and gave evidence on their behalf and that his dismissal was solely due to the interest he took in their cause The Tribunal found in his favour and passed an award directing his reinstatement The appellant contended that the respondent was incompetent to raise the dispute under section 33A of the Act The question for decision therefore was one relating to the construction of section 331a of the Act 351 Held that the expression workmen concerned in such dis pute occurring in section 331a of the as amended by Act 36 of 1956 includes not merely such workmen as are directly or immediately concerned with the dispute but also those on whose behalf the dispute is raised as well as those who when the award is made will be bound by it Eastern Plywood Mfg Co Ltd vs Eastern Plywood Mfg Workers Union and Newtone Studios Ltd vs Ethirajula TR approved The New jehangir Vakil Mills Ltd Bhavnagar vs N L Vyas Others AIR 1959 BOM 248 disapproved

iminal Appeal No 64 of 1958 Appeal by special leave from the judgment and order dated December 3 1956 of the Allahabad High Court in Criminal Reference No 159 of 1956 N C Sen for the appellant C K Daphtary Solicitor General of India Purshottam Tricumdas G C Mathur and C P Lal for the respondent April 1 The Judgment of the Court was delivered by SUBBA RAO J This appeal by special leave is directed against the judgment of the High Court of Judicature at Allahabad rejecting the reference made by the learned Sessions Judge under section 488 of the Code of Criminal Procedure The appellant is a minor and lives under the guardianship of his mother Smt Gita Basu On September 14 1955 the appellant through his mother filed an application under section 488 of the Code of Criminal Procedure hereinafter referred to as the Code in the Court of the City Magistrate Allahabad praying for an order against the respondent Advocate General Uttar Pradesh Allahabad for maintenance alleging that he is his putative father Without giving notice to the respondent the Magistrate posted the petition for evidence on September 20 1955 On that date the appellant s guardian was examined and she was also cross examined by the Magistrate at some length 433 After she was examined the Magistrate directed her to produce any further evidence she might like to lead under section 202 of the Code and for that purpose he adjourned the petition for hearing to September 26 1955 on which date one police constable was examined and the learned Magistrate made the endorsement that the applicant said that she would examine no other witness On September 27 1955 the appellant filed a petition before the Magistrate stating that section 200 of the Code had no application and that no enquiry need be made before issuing notice to the respondent If however the Court treated the application as a complaint the applicant asked for time to adduce further evidence in support of the application for maintenance On that petition the learned Magistrate made the endorsement lead the further evidence please if you like On October 6 1955 the guardian of the appellant examined one more witness On that date the learned Magistrate made in the proceeding sheet the endorsement no further evidence to be led at this stage On October 10 1955 the learned Magistrate made an order dismissing the application He agreed with the petitioner s contention that sections 200 to 203 of the Code did not apply to the application for maintenance but he expressed the view that he should be satisfied that the petitioner had a prima facie case before he issued notice to the respondent He then proceeded to consider the evidence and came to the conclusion that he was not satisfied that the respondent was the father of Nand Lal and on that finding he refused to issue notice of the application to the respondent and dis missed the application The appellant filed a revision against that order of the learned Magistrate to the Sessions Judge Allahabad The learned Sessions Judge after considering the materials placed before the Magistrate came to the conclusion that it was a fit case in which the Magistrate ought to have issued summons to the respondent under sub section 6 of section 488 of the Code He submitted the record to the High Court of Judicature at Allahabad recommending that the order passed by the Magistrate be set aside and that the Magistrate be ordered to proceed with the 434 application in accordance with law The reference came up for hearing before Chowdhry J who on the analogy of other sections of the Code held that the Magistrate in holding a preliminary enquiry acted in consonance with the general scheme of the Code and that therefore the order dismissing the application was not vitiated by any illegality or irregularity He observed that it was conceded by the appellant before the Magistrate that the Magistrate could hold a preliminary enquiry and that therefore it was not open to the appellant to question its propriety He also found that every opportunity was given to the guardian of the appellant to lead such evidence as he desired to produce and that therefore the appellant was not prejudiced by the alleged irregularity On the main tainability of the reference he held that the finding arrived at by the learned Magistrate was one of fact on the materials placed on the record and as the Magistrate did not act perversely or in contravention of some well established principles of law or procedure the learned Sessions Judge should not have made the reference The learned Judge finally pointed out that the proceedings were only summary in nature and that they did not deprive the appellant of his right to seek remedy if any in a civil court In the result the reference was rejected The appellant by this appeal questions the correctness of that order Learned counsel for the appellant contends that the learned Magistrate followed a procedure not contemplated by the Code of Criminal Procedure and that in any event he conducted the enquiry in a manner which to say the least was unjust to the appellant The learned Solicitor General appearing for the respondent supported the procedure adopted by the Magistrate and also the finding arrived at by him He further contended that the appellant in the High Court as well as before the Magistrate conceded that the Magistrate had power to make a preliminary enquiry and that therefore he should not be allowed to question the validity of the enquiry for the first time before this Court Ordinarily in a case like this we should have been disinclined to interfere with the order of the High 435 Court in an appeal filed under article 136 of the Constitution But this appeal discloses exceptional circumstances which compel us to depart from the ordinary practice It is not correct to state that the appellant had conceded throughout that a Magistrate can make a preliminary enquiry under section 488 of the Code before issuing notice to the respondent Indeed the judgment of the Magistrate discloses that on behalf of the appellant certain decisions were cited in support of the contention that an application under section 488 of the Code does not come under the purview of sections 200 to 203 of the Code Section 200 of the Code provides for the examination of the complainant and the wit nesses present in court Section 202 enables him to make a further enquiry before issuing notice Section 203 empowers him to dismiss a petition if in his judgment no sufficient ground for proceeding with the case has been made out The contention raised by the appellant therefore can only mean that the Magistrate cannot make a preliminary enquiry in the manner contemplated by the said provisions Indeed the Magistrate accepted this contention but he observed But as the learned counsel submit I have to be satisfied that a notice under section 488 Cr PC should issue to the opposite party before issue it and that therefore all that has come on record as yet is admissible for consideration of the question whether the notice should be issued or not This observation did not record any concession on the part of the appellant that the Magistrate could make a preliminary enquiry In the context of the first submission the second submission could only mean that the Magistrate could satisfy himself before issuing notice whether the application was ex facie not maintainable or frivolous In the revision petition filed before the Sessions Judge the appellant raised the following ground Because the court below while correctly holding that application made by the applicant under section 488 Cr P C did not attract the operation of the provisions made in sections 200 to 203 of the said Code and further that in pursuance of the mandatory provision in s 4886 all evidence under 436 Chapter XXXVI of the said Code shall be taken in the presence of the opposite party has erred in law in directing evidence to be led under section 200 Cr P C and in considering the said evidence has usurped a jurisdiction not vested in it by law The judgment of the learned Sessions Judge also disclosed that this point was raised before him Though the learned Sessions Judge accepted the contention that sections 200 to 203 of the Code had no application he remarked that in this case the learned Magistrate thought it fit to satisfy himself if this was a case fit enough in which he should issue a notice Before the learned Judge of the High Court it does not appear that any concession even in a limited form was made Chowdhry J observes in his judgment it appears that it was conceded by the learned counsel appearing for the applicant that the Magistrate had to satisfy himself in limine that a notice of the application in question should issue to the opposite party This observation is only a reproduction of what the Magistrate stated in his judgment Learned counsel who appeared for the appellant in the High Court does not appear to have made any fresh concession before the High Court and we do not think that the learned Judge was justified in drawing from the observations of the Magistrate that it was conceded on behalf of the applicant that it would be a pro per procedure for the court to make such a preliminary enquiry in order to satisfy itself that notice should issue to the opposite party As we have pointed out the main contention of the petitioner throughout was that the Magistrate had no power to make a preliminary enquiry and the concession even if it had been made can only mean in the context that the Magistrate could satisfy himself whether on the allegations in the petition it was a frivolous petition The first question is whether section 488 of the Code contemplates any preliminary enquiry on the part of a Magistrate before he could issue notice to the opposite party The answer to this question turns upon the construction of the provisions of section 488 of the Code Chapter XXXVI of the Code contains three 437 provisions The heading of the Chapter is of The Maintenance of Wives and Children The relevant provisions read Section 488 1 If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself the District Magistrate a Presidency Magistrate a Sub divisional Magistrate or a Magistrate of the first class may upon proof of such neglect or refusal order such person to make a monthly allowance for the maintenance of his wife or such child at such monthly rate not exceeding five hundred rupees in the whole as such Magistrate thinks fit and to pay the same to such person as the Magistrate from time to time directs x x x 6 All evidence under this Chapter shall be taken in the presence of the husband or father as the case may be or when his personal attendance is dispensed with in the presence of his pleader and shall be recorded in the manner prescribed in the case of summons cases x x x Section 489 provides for the alteration in the allowance under section 488 and section 490 prescribes the procedure for the enforcement of the order of maintenance The relief given tinder this Chapter is essentially of civil nature It prescribes a summary procedure for compelling a man to maintain his wife or children The findings of a magistrate under this Chapter are not final and the parties can legitimately agitate their rights in a civil court This Chapter is a self contained one It recognizes the right of a child or wife to claim maintenance It prescribes the procedure to be followed and provides for the enforcement of the decision of the magistrate Under section 488 so far as it is relevant to the present enquiry an illegitimate child unable to maintain itself is entitled to a monthly allowance for its maintenance if the putative father having sufficient means neglects or refuses to maintain it It is suggested that unless the child is admitted by the putative father to be his illegitimate child the 56 438 magistrate has no power to make an order for payment of maintenance This argument if accepted would make the entire section nugatory The basis of an application for maintenance of a child is the paternity of the child irrespective of its legitimacy or illegitimacy The section by conferring jurisdiction on the magistrate to make an allowance for the maintenance of the child by necessary implication confers power on him to decide the jurisdictional fact whether the child is the illegitimate child of the respondent It is the duty of the court before making the order to find definitely though in a summary manner the paternity of the child Sub section 6 of section 488 is mandatory in form and in clear terms it prescribes the procedure to be followed by the Magistrate Under that subsection all evidence under that Chapter shall be taken in the presence of the husband or the father as the case maybe or when his personal attendance is dispensed with in the presence of his pleader and shall be recorded in the manner prescribed in the case of summons cases The word all with which the sub section opens emphasizes the fact that no evidence shall be taken in the absence of the father or his pleader It is conceded that sections 200 to 203 of the Code do not apply to an application under section 488 of the Code As the proceedings are of a civil nature the Code does not contemplate any preliminary enquiry When the terms are clear there is no scope for drawing inspiration from other sections of the Code or for deviating from the procedure prescribed to fill up an alleged lacuna It is said that if no preliminary enquiry be held even in a blackmailing action notice will have to go to the respondent There is nothing incongruous in this position for if a suit is filed in a civil court for a decree for maintenance by a child against the alleged putative father summons will go to him without any preliminary enquiry We are not impressed by the argument that the sub section itself is intended only for the benefit of the respondent It appears to us that notice to the respondent is in the interest of both the applicant as well as the respondent while it enables the respondent to be present when evidence is taken against him it lightens the burden 439 of the petitioner for an honest respondent may admit his paternity of the child if that was a fact and may contest only the quantum of maintenance We therefore hold that section 488 of the Code does not contemplate a preliminary enquiry before issuing a notice but lays down that all evidence under that Chapter should be taken in the presence of the respondent or his pleader indicating thereby that one enquiry only should be held after notice The more objectionable feature in this case is that the Magistrate followed a procedure which is to say the least unjust to the appellant The appellant s guardian was examined by the Magistrate and she related the circumstances that led to her illicit intimacy with the respondent she has stated in what circumstance the intimacy commenced She filed copies of the notices sent by her through an advocate by registered post to the respondent demanding maintenance and stated that she received the acknowledgments but the respondent did not think it fit to reply She filed a photograph wherein she and the respondent were seated on chairs with the appellant standing between them A servant was also examined who deposed that she had seen the respondent visiting the appellant s mother at odd hours This evidence ordinarily would be sufficient even if the procedure followed by the Magistrate was permissible to give notice to the respondent But the learned Magistrate cross examined the mother of the appellant at great length The cross examination discloses that the Magistrate had either uncommon powers of intuition or extraneous sources of information for he elicited so many minute details of her life that only an advocate well instructed in his brief could possibly do The singularity of the method adopted by the Magistrate does not end there The learned Magistrate though he subsequently held that he could not make a preli minary enquiry as contemplated by sections 200 to 203 of the Code examined the mother of the appellant at great length and then gave her opportunity under section 202 of the Code to produce other evidence After examining two more witnesses the learned Magistrate ordered that no further evidence to be led at this 440 stage This order indicates that the learned Magistrate prevented the appellant at that stage to examine other witnesses Even if a liberal meaning was given to the terms of the order it would mean that at that time the Magistrate was inclined to give notice to the respondent but changed his mind subsequently Thereafter the Magistrate considered the evidence and delivered a judgment holding that the paternity of the appellant had not been established While there was uncontradicted evidence sufficient for the Magistrate to give notice to the respondent he recorded a finding against the appellant before the entire evidence was placed before him While accepting the contention of the appellant that the procedure under sections 200 to 203 of the Code did not apply in fact he followed that procedure and converted the preliminary enquiry into a trial for the determination of the question raised Indeed he took upon himself the role of a cross examining counsel engaged by the respondent The record discloses that presumably the Magistrate was oppressed by the high status of the respondent and instead of making a sincere attempt to ascertain the truth proceeded to adopt a procedure which is not warranted by the Code of Criminal Procedure and to make an unjudicial approach to the case of the appellant In the courts of law there cannot be a double standard one for the highly placed and another for the rest the Magistrate has no concern with personalities who are parties to the case before him but only with its merits After carefully going through the entire record we are satisfied that the appellant was not given full opportunity to establish his case in the manner prescribed by law We should not be understood to have expressed any opinion on the merits of the case they fall to be considered on the entire evidence which may be produced by the appellant in the presence of the respondent or his pleader as the case may be In the result the order of the High Court is set aside and the reference made by the Sessions Judge is accepted and the application is remanded to the Court of the Magistrate First Class Allahabad for disposal according to law Appeal allowed

A rationalisation scheme in the mills of the appellant com panies was agreed to by the Works Committee and a notice under section 9A of the was given to the 365 Union of their workmen The workmen however objected to the introduction of the scheme and the dispute was referred by the Government to the Tribunal on December 13 1957 On December 16 the management of the companies put the rationalisation scheme into operation but the workmen refused to do the additional work placed on them by the scheme Later the same day the mills declared a lock out Work was however resumed a few days later as a result of a settlement and a dispute arose as to whether the workmen were entitled to the payment of wages for the period during which the mills were closed Held 1 that the workmen s representatives on the Works Committee represented the workmen only for the purpose of the functions of the Works Committee and that the approval of the scheme of rationalisation by the Works Committee was not binding on the workmen or their Union Kemp and Company Ltd vs Their Workmen approved 2 that the introduction of a rationalisation scheme was an alteration of conditions of service to the prejudice of the workmen 3 that the alteration of conditions of service was made not when notice under section 9A of the was given but on December 16 when the rationalisation scheme was put into operation and that as it was done when the reference was pending before the Tribunal it was a contravention of section 33 of the Act 4 that the closure of the mills in the circumstances of this case by the employer amounted to an illegal lock out and that the workmen unable to work in consequence of the lock out were entitled to wages for the period of absence caused by such lock out

Appeal No 91 of 1959 Appeal by special leave from the decision dated March 241958 of the Labour Court Coimbatore in R P No 35 of 1958 G B Pai and Sardar Bahadur for the appellant M K Ramamurthi and T section Venkataraman for the respondents March 24 The Judgment of the Court was delivered by GAJENDRAGADKAR J This appeal by special leave is directed against the order passed by the Labour Court at Coimbatore directing the appellant the Management of the Kairbetta Estate Kotagiri to pay lay off compensation to its workmen the respondents for the period between July 28 1957 to September 2 1957 This order was passed on a complaint filed by the respondents before the Labour Court under section 33C2 of the XIV of 1947 hereinafter called the Act The material facts leading to the respondents complaint must be set out briefly at the outset On July 26 1957 Mr Ramakrishna Iyer the appellant s Manager was assaulted by some of the workmen of the appellant He suffered six fractures and had to be in hospital in Coonoor and Madras for over a month The appellant s staff working in the division known as Kelso Division was also threatened by the workmen As a result of these threats three members of the staff wrote to the appellant on July 27 1957 that they were afraid to go down to the lower division and it was impossible for them to work there because their lives were in danger They added that the workers in the lower division were threatening them 373 that they would murder them if they worked in the lower division On receiving this communication from its staff the appellant notified on the same day that the Kelso Division would be closed from that day onwards until further notice This notice referred to the brutal assault on the Manager and to the threat held out against the field staff who were reluctant to face the risk of working in the lower division It appears that the Kelso Division continued to be closed until September 2 1957 on which date it was opened as a result of conciliation before the labour officer when the respondents gave an assurance that there would not be any further trouble The claim for layoff is made for the said period during which the division remained closed between July 28 to September 2 1957 Soon after the division was closed the respondents made a complaint to the Labour Court No 43 of 1957 under section 33A of the Act in which they alleged that they had been stopped from doing their work without notice or enquiry and claimed an order of reinstatement with back wages and continuity of service At the hearing of the said complaint the appellant raised a preliminary objection that the closure in question was a lock out and that it did not amount either to an alteration of conditions of service to the prejudice of the workmen nor did it constitute discharge or punishment by dismissal or otherwise under cls A and B of section 33 respectively and so the petition was incompetent This preliminary objection was upheld by the Labour Court and the complaint was accordingly dismissed on November 30 1957 Thereafter the present complaint was filed by the respondents on January 31 1958 under section 33C of the Act In this complaint it was stated that the respondents were refused work from July 28 to September 2 1957 by declaring a lock out of a division of the estate and the claim made was that as the management for their own reasons did not choose to run the division during the said days and laid off the respondents the respondents were entitled to claim lay off compensation under section 25C of the Act Against this complaint the appellant raised several contentions 48 374 It was urged on its behalf that the complaint was in competent under section 33C and that the Labour Court had no jurisdiction to deal with it It was also contended that the closure of the division amounted to a look out which under the circumstances was perfectly justified and as such the respondents were not entitled to claim any lay off compensation The Labour Court rejected the preliminary objection as to want of jurisdiction and held that the complaint was competent under section 33C On the merits it found in favour of the respondents and so it directed the appellant to pay to the respondents the lay off compensation for the period in question It is this order which is challenged before us in the present appeal and the same two questions are raised before us For the purpose of deciding this appeal we will assume that the complaint filed by the respondents under section 33C was competent and that the Labour Court could have entertained a claim for lay off compensation if the respondents were otherwise entitled to it On that assumption the question which we propose to decide is whether the closure of the appellant s division during the relevant period which amounts to a lock out can be said to fall within the definition of lay off We have already pointed out that in the earlier complaint by the respondents under section 33A it has been held by the Labour Court that the closures question was a lock out and as such the appellant had not contravened the provisions of section 33 of the Act Even in the present application the respondents have admitted that the said closure is a lock out but they have added that a lock out falls within the definition of lay off and that is the basis for their claim for layoff compensation The question which thus arises for our decision is Does a lock out fall under section 2kkk which defines a lay off Section 2kkk defines a lay off as meaning the failure refusal or inability of an employer on account of shortage of coal power or raw materials or the accumulation of stocks or the breakdown of machinery or for any other reason to give employment to a workman whose name is borne on the muster rolls of his industrial establishment and who has not been 375 retrenched There is an explanation to the definition which it is unnecessary to set out It is clear that tile lay off takes place for one or more of the reasons specified in the definition Lay off may be due to shortage of coal or shortage of power or shortage of raw materials or accumulation of stocks or breakdown of machinery or any other reason Any other reason to which the definition refers must we think be a reason which is allied or analogous to reasons already specified It has been urged before us on behalf of the respondents that any other reason mentioned in the definition need not be similar to the preceding reasons but should include any other reason of whatsoever character for which lay off may have taken place and in support of this argument reliance is placed on section 25Eiii Section 25E deals with three categories of cases where compensation is not liable to be paid to a workman even though he may have been laid off One of these is prescribed by section 25Eiii if the laying off is due to a strike or slowing down of production on the part of workmen in another part of the establishment no compensation has to be paid The argument is that laying off which is specified in this clause has been excepted because but for the exception it would have attracted the definition of section 2kkk and would have imposed an obligation on the employer to pay lay off compensation That no doubt is true but we do not see how the case specified in this clause is inconsistent with the view that any other reason must be similar to the preceding reasons specified in the definition If there is a strike or slowing down of production in one part of the establishment and if lay off is the consequence the reason for which lay off has taken place would undoubtedly be similar to the reasons specified in the definition We are therefore satisfied that the expression any other reason should be construed to mean reason similar or analogous to the preceding reasons specified in the definition That is the view taken by the Allahabad High Court in J K Hosiery Factory vs Labour Appellate Tribunal of India Anr1 1 AIR 1956 All 376 Let us now consider what a lock out means under the Act Section 21 defines a lock out as meaning the closing of a place of employment or the suspension of work or the refusal by an employer to continue to employ any number of persons employed by him It may be relevant to point out that the definition of lock out contained in section 2e of the Trade Disputes Act 1929 VII of 1929 had in addition to the present definition under section 21 included an additional clause describing a lock out which provided that such closing suspension or refusal occurs in consequence of a dispute and is intended for the purpose of compelling those persons or of aiding another employer in compelling persons employed by him to accept terms or conditions of or affecting employment This clause has now been deleted Even so the essential character of a lock out continues to be substantially the same Lock out can be described as the antithesis of a strike Just as a strike is a weapon available to the employees for enforcing their industrial demands a lock out is a weapon available to the employer to persuade by a coercive process the employees to see his point of view and to accept his demands In the struggle between capital and labour the weapon of strike is available to labour and is often used by it so is the weapon of lock out available to the employer and can be used by him The use of both the weapons by the respective parties must however be subject to the relevant provisions of the Act Chapter V which deals with strikes and lock outs clearly brings out the antithesis between the two weapons and the limitations subject to which both of them must be exercised Thus the concept of lockout is essentially different from the concept of lay off and so where the closure of business amounts to a lock out under section 21 it would be impossible to bring it within the scope of lay off under section 2kkk As observed by the Labour Appellate Tribunal in MS Presi dency Jute Mills Co Ltd vs Presidency Jute Mills Co Employees Union 2 in considering the essential character of a lock out its dictionary meaning may be borne in mind According to the dictionary meaning 2 1952LAC 62 377 lock out means a refusal by the employer to furnish work to the operatives except on conditions to be accepted by the latter collectively Stated broadly lay off generally occurs in a continuing business whereas a lock out is the closure of the business In the case of a lay off owing to the reasons specified in section 2kkk the employer is unable to give employment to one or more workmen In the case of a lock out the employer closes the business and locks out the whole body of workmen for reasons which have no relevance to causes specified in section 2kkk Thus the nature of the two concepts is entirely different and so are their consequences In the case of a lay off the employer may be liable to pay compensation as provided by section 25C D and E of the Act but this liability can not be invoked in the case of a lock out The liability of the employer in cases of lock out would depend upon whether the lock out was justified and legal or not but whatever the liability the provisions applicable to the payment of lay off compensation cannot be applied to the cases of lockout Therefore we hold that the lock out in the present case was not a lay off and as such the respondents are not entitled to claim any lay off compensation from the appellant Incidentally we would like to add that the circumstances of this case clearly show that the lock out was fully justified The appellant s Manager had been violently attacked and the other members of the staff working in the lower division were threatened by the respondents In such a case if the appellant locked out his workmen no grievance can be made against its conduct by the respondents In the result the appeal is allowed the order passed by the Labour Court is set aside and the complaint filed by the respondents under section 33C is dismissed There would be no order as to costs Appeal allowed

The management by a notice terminated the services Of 39 workmen as a measure of retrenchment The workmen went on strike which led to an industrial dispute The Industrial Tribunal interalia held that the strike was not justified and that the management had made out of a case of necessity for retrenchment and no malafides had been established but the principle of last come first go had not been observed in selecting the personnel for retrenchment and ordered the reinstatement Of 15 out of the 39 workmen retrenched The Appellate Tribunal confirmed the findings of the Industrial Tribunal with certain modifications by way of compensation The management came up in appeal by special leave Held that where a case of retrenchment is made out the employer has normally to follow the industrial rule of retrenchment last come and first go for valid reasons he may however depart from the said rule in that case he has to show by reliable evidence preferably from the recorded history of the workmen concerned showing their inefficiency unreliability or habitual irregularity and can satisfy the Tribunal that the departure from the rule was justified by sound and valid reasons otherwise the departure from the rule could be treated as being malafidc or amounting to unfair labour practice Held further that once it was found that retrenchment was unjustified and improper it is for the Tribunal to consider to what relief the retrenched workmen will be entitled ordinarily retrenched workmen would be entitled to claim reinstatement and the fact that in the meantime the employer has engaged other workmen would not necessarily defeat the claim for reinstatement nor would the fact that protracted litigation in regard to the dispute has inevitably meant delay defeat such a claim for reinstatement Therefore the conclusion that 15 workmen were improperly retrenched cannot be sucessfully challenged

Appeal No 101 of 1960 Appeal by special leave from the Award dated 2nd March 1959 of the Labour Court Chotanagpur Division Ranchi in Misc Cases Nos 7376 77 79 82 84 90 of 1958 N C Chatterjee A K Dutt and B P Maheshwari for the appellants Sohrab D Vimadalal section N Andley J B Dadachanji Rameshwar Nath and P L Vohra for the respondents March 25 The Judgment of the Court was delivered by DAS GUPTA J When the management of an industry holds an enquiry into the charges against a workman for the purpose of deciding what action if any should be taken against him has the workman a right to be represented by a representative of his Union at the enquiry That is the principal question raised in this appeal The 14 appellants all workmen in Ms Tata Locomotive Engineering Co Ltd Jamshedpur were dismissed under the orders of the company s management on the result of an enquiry held 408 against them As industrial disputes between these workmen and the company were at that time pending before the Industrial Tribunal Bihar the company filed applications purporting to be under section 33 of the Industrial Disputes Act praying for approval of the action taken by it against the workmen Workmen also filed applications under section 33A of the Industrial Disputes Act complaining of the action taken against them by the company The applications of the com pany under section 33 were however ultimately held to have become infructuous and the applications under section 33A were only considered and disposed of by the Labour Court The applications of these 14 appellants were however dismissed Against that order the appellants have preferred this appeal after having obtained special leave for the purpose The common contention urged on behalf of the appellants was that the enquiry on the results of which the orders of dismissal were based was not a proper and valid enquiry inasmuch as the workmen were not allowed to be represented at the enquiry by a representative of the Jamshedpur Union to which these workmen belonged It has been urged that fair play demands that at such an enquiry the workman concerned should have reasonable assistance for examination and cross examination of the witnesses and for seeing that proper records are made of the proceeding It has been argued that a representative of the workmen s Union is best suited to give such assistance and in the absence of such assistance the workman does not get a fair chance of making his case before the Enquiry Officer It appears that when on June 5 1953 requests were made on behalf of the several workmen that they should be allowed to be represented by a representative of the Jamshedpur Mazdoor Union at the enquiry to conduct the same on workmen s behalf the management rejected this request but informed the workmen that they could if they so desired be represented by a co worker from the workmen s own department at the enquiry The question which arises therefore is whether this refusal of the workmen s request to be represented at the 409 enquiry by a representative of their Union vitiated the enquiry Accustomed as we are to the practice in the courts of law to skilful handling of witnesses by lawyers specially trained in the art of examination and cross examination of witnesses our first inclination is to think that a fair enquiry demands that the person accused of an act should have the assistance of some person who even if not a lawyer may be expected to examine and cross examine witnesses with a fair amount of skill We have to remember however in the first place that these are not enquiries in a court of law It is necessary to remember also that in these enquiries fairly simple questions of fact as to whether certain acts of misconduct were committed by a workman or not only fall to be considered and straightforward questioning which a person of fair intelligence and knowledge of conditions prevailing in the industry will be able to do will ordinarily help to elicit the truth It may often happen that the accused workman will be best suited and fully able to cross examine the witnesses who have spoken against him and to examine witnesses in his favour It is helpful to consider in this connection the fact that ordinarily in enquiries before domestic tribunals the person accused of any misconduct conducts his own case Rules have been framed by Government as regards the procedure to be followed in enquiries against their own employees No provision is made in these rules that the person against whom an enquiry is held may be represented by anybody else When the general practice adopted by domestic tribunals is that the person accused conducts his own case we are unable to accept an argument that natural justice demands that in the case of enquiries into a chargesheet of misconduct against a workman he should be represented by a member of his Union Besides it is necessary to remember that if any enquiry is not other wise fair the workman concerned can challenge its validity in an industrial dispute Our conclusion therefore is that a workman against whom an enquiry is being held by the management has no right to be represented at such enquiry by a 410 representative of his Union though of course an employer in his discretion can and may allow his employee to avail himself of such assistance On behalf of the appellants Charan Singh Parmanand and K Ganguli it was urged that the orders of dismissal were bad inasmuch as they were based on a finding of guilt of misconduct not mentioned in the charge sheet Each of these appellants it appears was accused in the charge sheet of four different acts of misconducts 1 Participating in an illegal strike 2 Leaving your appointed place of duty 3 Inciting other employees to strike work 4 Threatening and intimidating other workers The Enquiry Officer found each of them guilty of the first three charges He however recorded no findings as regards the fourth charge but instead found these workmen guilty of a misconduct not mentioned in the charge sheet viz Behaving in a riotous and disorderly manner by shouting slogans on the shop floor On behalf of the appellants it is urged that as it is not possible to ascertain as to how this finding of guilt as regards misconduct not mentioned in the charge sheet affected the decision of the manager the order of dismissal must be set aside The record however discloses three cases in which the manager made orders of dismissal on a finding of guilt of only of the acts of misconduct alleged in these three charges namely i participating in an illegal strike ii leaving the appointed place of duty and iii inciting other employees to strike work There is no reason to think therefore that he would have discriminated in favour of these appellants Charan Singh parmanand and K Ganguli The conclusion that Necessarily follows is that leaving out of account the misconduct not mentioned in the charge sheet viz behaving in a riotous and disorderly manner by shouting slogans in the shop floor the manager would have made the order of dismissal The fact that this act of misconduct not mentioned in the charge sheet was also mentioned as one of the items on which the order of dismissal was based does not Therefore affect the validity of the order 411 The charge sheet against section B Nath accused him of four acts of misconduct 1 Participating in an illegal strike 2 Leaving your appointed place of duty 3 Inciting other employees to strike work 4 Threatening and intimidating other workers The relevant portion of the order of dismissal is in these words He has been found guilty of the following acts of misconduct For entering the works when not on duty and inciting other employees to strike work He is therefore dismissed from the service of the company It is argued that as he has not been accused in the charge sheet for entering the Works when not on duty but this had been taken into consideration in deciding on his punishment the order is bad It has to be noticed however that entering the Works when not on duty is not a misconduct under the company s standing orders It is quite clear that the statement in the dismissal order as regards entering the Works when not on duty was really intended to state the manner and occasion in which the misconduct of inciting other employees to strike work was committed The unnecessary and indeed slightly erroneous mention that he had been found guilty of entering the Works when not on duty does not justify the conclusion that this fact of entering the works when not on duty played any part in the mind of the punishing authority in determining his punishment A statement in the dismissal order that he has been found guilty of entering the Works when not on duty as an act of misconduct is obviously erroneous The act of misconduct of which this appellant was found guilty was inciting other employees to strike work and that is the only misconduct which weighed with the punishing authority The contention that the mention in the dismissal order of entering the Works when not on duty as an act of misconduct of which he had 412 been found guilty vitiates the order of dismissal cannot therefore be accepted On behalf of the appellant M R Ghosh it was urged that the alleged misconduct of deliberately preventing the man in charge of the Compressor in the repair shop from carrying out his duty of which he is said to have been found guilty in the order of dismissal was not alleged in the charge sheet This is really a misreading of the charge sheet Against this appellant four acts of misconduct were alleged in the charge sheet 1 Participation in an illegal strike 2 Inciting other employees in the other sections of the Auto Division to strike work 3 Leaving your appointed place of duty or work without permission 4 Threatening and intimidating the other workers in the Repair Shop The dismissal order after mentioning that he was found guilty of the first three charges further states that he was found guilty of the following acts of misconduct threatening and intimidating the workers in the Repair Shop and deliberately preventing the man in charge of the Compressor in the Repair Shop from carrying out his duty The argument is that the charge as set out in the charge sheet does not mention this act of deliberately preventing the man in charge of the Compressor in the Repair Shop from carrying out his duty This is obviously erroneous The charge sheet after alleging the four acts of misconduct went on to give particulars of these charges As regards the fourth charge viz threatening and intimidating the other workers in the Repair Shop the particulars were in thesewords By threatening and intimidating others in the repair shop you stopped them from working and also you took the Compressor man by his hand and got the Compressor stopped The statement in the dismissal order as regards his being quilty of deliberately preventing the man in charge of the Compressor in the Repair Shop from carrying out his duty has in fact been mentioned in the charge sheet though in slightly different words There is no substance therefore in the contention that 413 the acts of misconduct on which the dismissal order was based included one not mentioned in the chargesheet The four acts of misconduct alleged in the chargesheet against Gurbux Singh were 1 Participating in an illegal strike 2 Leaving your appointed place of duty 3 Inciting other employees to strike work 4 Threatening and intimidating other workers The Enquiry Officer s report found him guilty of the following acts 1 Participating in an illegal strike 2 Leaving his place of duty without permission 3 Inciting other employees to strike work and 4 Threatening and intimidating Mr Charan Singh to stop work The manager s order on these is in these words I have gone through the findings of the Enquiry Officer as well as the proceedings of the Inquiry Though Mr Gurubux Singh created a scene on the 11th June 1958 and left the place of enquiry still he was given a chance and the enquiry was held at a later date Having gone through the evidence recorded against him during the enquiry I agree with the findings of the C P 0 The charges being of a very serious nature I order that he be dismissed from the services of the company with effect from the date of the charge sheet The formal dismissal order that was drawn up on the basis of this finding and served on him after stating that he was found guilty of the first three charges stated that he was found guilty of threatening and intimidating Mr Chakravarty chargeman who was compelled to stop work on 21 5 58 On his behalf it has been urged that though the enquiry officer s report says that he was guilty of threatening and intimidating Charan Singh the General Manager misled himself into thinking that he had threatened and intimidated Mr Chakravarty Chargeman There being no finding by the Enquiry Officer that Gurubux Singh was guilty of threatening and intimidating 53 414 Mr Chakravarty Chargeman the General Manager was not entitled to take such a misconduct into consideration On an examination of the Enquiry Officer s report it is however obvious that there is a clerical error in the concluding portion of the report in stating the finding as regards the fourth charge as threatening and intimidating Charan Singh to stop work Charan Singh was really one of the striking workers and there was no quest ion of intimidating him It is abundantly clear from the report that the case that was sought to be made as regards the fourth charge was that Chakravarty had been intimidated and that this allegation was found proved There could not have been and was not any allegation of Charan Singh being intimidated It is quite clear that the name of Charan Singh was accidentally mentioned in the concluding portion of the report instead of the correct name Chakravarty There is no justification for thinking that the General Manager who had gone through the evidence and report of the Enquiry Officer could possibly have been misled by this clerical mistake The relevant charge was threatening and intimidating other workers whether Charan Singh or Chakravarty was intimidated would not be of any consequence In fact however the allegation against this appellant clearly was that Chakravarty had been intimidated by him The body of the report shows that that was what the Enquiry Officer found proved It is reasonable to think that that conclusion and not the wrong statement that Charan Singh was threatened and intimidated which was nobody s case weighed with the General Manager in determining the punishment In our opinion there is no substance in the contention urged on his behalf that the finding that Charan Singh was threatened and intimidated as an act of misconduct instead of Chakravarty was wrongly relied upon On behalf of the appellant section K Dhanda it has been urged that in making the dismissal Manager wrongly thought that guilty of all the four acts of misconduct order the General he had been found which were against him in the charge sheet though in fact he was 415 found guilty only of three and the fourth charge was not proved The four acts of misconduct alleged in the charge sheet were 1 Participation in an illegal strike 2 Leaving his place of duty without permission 3 Inciting other employees in the Paint Shop Propeller Shaft Section Rear Axle Section and Press Section of the Auto Division to stop work 4 Behaving in a riotous and disorderly manner and threatening and intimidating another coworker The formal order of dismissal that was drawn up stated that he had been found guilty of the following acts of misconduct 1 Participating in an illegal strike 2 Leaving his place of duty without permission 3 Inciting other employees in the Paint Shop Propeller Shaft Section Rear Axle Section and Press Section of the Auto Division to stop work 4 Threatening and intimidating another employee by name Mr T section N Rao T No 6610602051 and stopping him from doing his work He is therefore dismissed from the service of the Company The Enquiry Officer s report states the conclusions reached by him thus From the statement of the witnesses it has been conclusively proved that Mr Dhanda 1 participated in an illegal strike 2 left his place of duty without permission 3 incited other employees to stop work It can be said that the charge of threatening and intimidating has not been proved beyond doubt If one looks at the formal order of dismissal only it seems that though the charge of threatening and intimidating other employees was not proved against him the order of dismissal was partially based on it If there was nothing else this might be a serious infirmity in the order We find however that the General Manager recorded his order on the formal Report itself in these words 416 I have gone through the findings of the Enquiry Officer and the proceedings of the enquiry Even though the charge of threatening and intimidating other workers has not been proved against Mr Dhanda the other charges are also of a serious nature In the circumstances order that he be dismissed from the service of the company with effect from the date of the charge sheet This was dated July 3 1958 and the formal order also bears the same date Reading the two together it is quite clear that the General Manager in passing the order of dismissal proceeded on the basis that the charge of threatening and intimidating other employees had not been proved against Mr Dhanda but a mistake crept into the formal order that was drawn up and among the acts of misconduct mentioned as those of which Dhanda had been found guilty and on which the dismissal order was based the fourth charge as regards threatening and intimidating other employees was also mentioned It is proper to hold that this was an accidents clerical mistake and that in fact the General Manager did not proceed on the wrong basis that Dhanda had been found guilty on this fourth charge also The mere fact that such a clerical error appears in the formal order does not affect the validity of the order in any way We have therefore come to the conclusion that the separate contentions pressed oil behalf of seven of the appellants that the Tribunals below did not consider certain infirmities in the order cannot also be sustained The appeal is accordingly dismissed but in the circumstances we make no order as to costs Appeal dismissed

The appellant who was a minor filed an application by his mother as his guardian under section 488 of the Code of Criminal Procedure in the Court of the City Magistrate Allahabad praying for an order against the respondent for maintenance alleging that he was his putative father The Magistrate summarily dismissed the appellant s application without issuing notice to the respondent as required by s488 Criminal Procedure Code The Court of Session in revision against the Magistrate s order came to the conclusion that it was a fit case in which the Magistrate ought to have issued summons to the respondent and submitted the record to the High Court recommending that the order passed by the Magistrate be set aside and that the Magistrate be ordered to proceed with the application in accordance with law TheHighCourtrejectedtheSessionsCourt preference and refused to certify that the case was a fit one for appeal to the Supreme Court On appeal by special leave Held that the appellant was not given full opportunity to establish his case in the manner prescribed by law 432 Section 488 of the Code of Criminal Procedure does not contemplate a preliminary enquiry before issuing a notice but lays down that all evidence under that section should be taken in the presence of the respondent or his pleader indicating thereby that one enquiry only should be held after notice Sub section 6 of section 488 is mandatory in form and in clear terms it prescribes the procedure to be followed by the Magistrate It is the duty of the Court before making the order to find definitely though in a summary manner the paternity of child Chapter XXXVI of the Code of Criminal Procedure is a self contained one and the relief given under it is essentially of a civil nature It prescribes a summary procedure for compelling a man to maintain his wife or children The findings of a Magistrate under this chapter are not final and the parties can legitimately agitate their rights in a civil court

Appeal No 21 of 1956 Appeal from the judgment and decree dated August 121954 of the Bombay High Court in Appeal No 45 of 1954 arising out of the judgment and decree dated February 17 1954 of the said High Court in Suit No 246 of 1956 H J Umrigar N N Keswani and R H Dhebar for the appellant M C Setalvad Attorney General of India section M Dubash and G Gopalakrishnan for the respondents March 25 The Judgment of the Court was delivered by WANCHOO J This is an appeal on a certificate granted by the Bombay High Court The brief facts necessary for its disposal are these Messrs section section Miranda Ltd hereinafter called the respondent is a company and was holding a trade and import licence of foreign liquor as well as a vendor s licence under the Bombay Abkari Act Bom V of 1878 hereinafter 399 called the Act upto the end of March 1949 It used to keep the liquor in a bonded warehouse On April 2 1948 the respondent was informed by the State of Bombay hereinafter called the appellant to remove S the liquor from the bonded warehouse after paying the necessary excise duty In pursuance of this letter the respondent paid the duty and got transport permits from the appellant It may be mentioned that the bonded warehouse was in the premises of the respondent itself and all that happened after the payment of the duty was that the liquor no longer remained in bond but came into possession of the respondent The transport permits were issued on April 5 1948 and thereafter the respondent took over the liquor and some of it was sold On December 16 1948 a notification was issued by the appellant hereinafter referred to as the Notification whereby the duty on foreign liquor was doubled Thereupon the respondent was asked by the appellant to pay the additional duty upon the liquor which was still lying in its godown and was also told that it would not be permitted to deal with that liquor until the additional duty was paid The respondent objected to this demand but paid the duty which came to over two lacs of rupees under protest Thereafter a notice was given by the respondent under section 80 of the Code of Civil Procedure to the appellant and was followed by a suit on the original side of the Bombay High Court The main contention of the respondent was that the Notification in so far as it imposed and levied additional duty on the stock of foreign liquor on which the duty had already been paid at the time of its issue from the bonded warehouse was illegal invalid and ultra vires the Act and in particular beyond the scope of section 19 of the Act The respondent therefore claimed refund of the duty which it had paid under protest and also interest at 6 per cent per annum from the date of payment till the date of recovery The suit was resisted by the appellant and its case was that the Notification was valid and that the respondent was bound to pay the duty prevailing on 400 the transport of the excisable articles at the time of transporting the same from its premises to another place within the State of Bombay Thus the only question that fell for consideration was whether the additional duty imposed and levied under the Notification was legally levied The learned judge who tried the suit was of the opinion that it was competent for the legislature to impose tax on excisable articles whenever they were transported from one place to another and that that power was delegated to the State Government which was thus competent to impose a duty on excisable articles not only once when they were transported in the beginning but also thereafter whenever they were transported from one place to another within the State before the goods passed into the hands of the consumer and dismissed the suit The respondent went in appeal against the dismissal The appeal was heard by a Division Bench and was allowed and the suit was decreed with interest at certain rates The Division Bench was of the opinion that reading sections 10 and 19 together it was clear that when the duty mentioned in section 19 had been paid the prohibition contained in section 10 must disappear subject to the Explanation to section 19 It also held that the first proviso to section 19A of the Act was really a proviso to section 19 and determined the rate at which the duty was to be paid and that there could be no further imposition of duty against the terms of that proviso by the Notification The main contention on behalf of the appellant before us is that it is open to the legislature to impose excise duty at more points than one and that that was what has been done by the legislature in this case and the Government when it made the Notification in December 1948 was carrying out the provisions of the Act Reliance in this connection was placed on sections 310 10 and 19 of the Act and it is urged that reading these three sections together it will be clear that the Notification was valid and within the powers of the State Government The relevant portion of the Notification is in these terms 401 In exercise of the powers conferred by section 19 of the Bombay Abkari Act 1878 Bombay V of 1878 and in partial supersession of all previous orders and notifications issued thereunder that is to say in so far as they relate to the imposition of excise and countervailing duties charged on the excisable articles specified in column 1 of Schedules A and B hereto annexed the Government of Bombay is pleased to direct that a excise or countervailing duty as the case may be shall be imposed on the excisable articles specified in column 1 of Schedule A at the rate specified in columns 2 and 3 thereof when such excisable articles are i imported into the Province in accordance with the provision of sub section 1 of section 9 of the said Act or ii issued from any brewery distillery or a warehouse established under the said Act in the Province or iii transported from the premises of persons holding a Trade and Import license under the said Act to any place within the Province Provided that no such duty shall be imposed on the excisable articles which have been imported into British India and were liable on such importation to duty under the Indian Tariff Act 1934 or the Provided further that if excise or countervailing duty has already been paid on such excisable articles for their import issue or transport for consumption into to or within any place in the Province the amount of duty to be imposed shall be the difference between the amount of duty leviable at the rates specified in the said Schedule and that already paid on such articles and b Then follow the Schedules Which it is unnecessary to set out By the notification excise duty at the rates specified in the Schedules is imposed on excisable articles when they are transported from the premises of persons holding a trade and import licence under the said Act to any place within the State The second 402 proviso however provides that where some excise duty has already been paid in connection with transport the amount of duty to be imposed under the Notification would be the difference between the duty leviable under the Notification and the duty already Paid The narrow question therefore is whether this additional duty can be legally levied by the State of Bombay and the answer to it will depend on the three provisions of the Act relied upon by the appellant 310 defines to transport to mean to move to one place from another place within the State This definition is very wide and would cover any movement of excisable article at any stage from one place to another within the State Then comes section 10 the relevant portion of which is in these terms No intoxicant and no hemp shall be exported or transported unless a the duty if any payable under Chapter VI has been paid or a bond has been executed for the payment thereof This section thus forbids the transport of any excisable article unless the duty payable under Chapter VI which deals with the subject of duties has been paid Lastly we come to section 19 which is the charging section and is in these terms An excise duty or countervailing duty as the case may be at such rate or rates as the State Government shall direct may be imposed either generally or for any specified local area on any excisable article a imported in accordance with the provision of sub section 1 of section 9 or b exported or transported in accordance with the provisions of section 10 or c manufactured under a license granted in accordance with the provisions of section 14 or section 15 Provided that i duty shall not be so imposed on any article which has been imported into India and was liable on such importation to duty under the Indian Tariff Act 1894 or the 403 Explanation Duty may be imposed under this section at different rates according to the places to which any excisable article is to be removed for consumption or according to the varying strengths and quality of such article This section gives power to the State Government to fix the rate or rates on which the duty will be levied on transport of excisable articles The Explanation to the section gives powers to the State Government to impose duties at different rates according to the places to which any excisable article is to be removed for consumption or according to the varying strengths and quality of such article The argument on behalf of the appellant is that in view of the very wide definition of the word transport and the prohibition of transport contained in section 10 without payment of duty it is clear that every time there is transport the duty becomes payable at the rate fixed by the State Government under section 19 and that there is nothing in these sections which in any way limitsthe power to levy duty at every stage of transport If this argument is accepted it will logically mean that every time there is transport of an excisable article duty will have to be paid till the excisable article has been actually consumed In other words when for example the excisable article is transported from the bonded warehouse by a wholesaler he will have to pay duty on it when a wholesaler sells to a retailer there is bound to be transport from the wholesaler s premises to the retailer s premises and the duty will have to be paid again Finally when the retailer sells it to a consumer there will again be transport from the retailer s place to the consumer s place and duty will have to be paid a third time Further if the interpretation as urged on behalf of the appellant is accepted the duty will have to be paid again and again in the cases mentioned above even though the rate remains the same The fact that in this particular case the rate was changed and that the State Government only demanded the extra duty will not affect the question of interpretation of the three provisions of the Act with which we are concerned Was it then the intention of the legislature when it 404 made these provisions to levy duty irrespective of the fact whether the rate was changed or not again and again as an excisable article passed from the bonded warehouse to the wholesaler from the wholesaler to the retailer and from the retailer to the consumer It is true that it was competent for the legislature to make such a provision but the question is whether the three provisions which we have set out above amount to making such a provision Sri Umrigar for the appellant fairly admits that if the rate of duty had not been changed there would not have been any demand of any further duty on any sale by the respondent which might have resulted in transport and that the practice was not to charge the same duty over again on sale by the wholesaler to the retailer or by the retailer to the consumer even though these sales resulted in transport except where the Explanation to section 19 applies If this practice is in accordance with law when there is no change in duty we cannot see how the excisable article which had been subjected to duty once will be liable to further duty equal to the difference when there is increase in the rate except of course where the Explanation to section 19 applies We see nothing in section 10 which lays down that every time there is transport duty must be paid even though the duty has already been paid when the first transport of an excisable article takes place What section 10 prohibits is the transport of excisable article unless the duty has been paid thereon Once the duty has been paid the prohibition under section 10 no longer applies unless the case is covered by the Expla nation to section 19 However wide may be the definition of transport what has to be seen is whether the prohibition under section 10 is to apply even to those excisable articles on which duty has been paid On a plain reading of section 10 the prohibition under that section cannot apply to transport of excisable articles on which duty has been paid Section 19 which is the charging section provides for levying of duty on transport in accordance with the provisions of section 10 This brings us back to section 10 and the question again is whether the prohibition having been removed by payment of duty once there is anything in section 10 which 405 requires that the duty should be paid again for transporting the goods on which duty has been paid As we read section 10 we find nothing in it which requires that duty should be paid again for transport once the duty has been paid and the prohibition removed subject always to the Explanation to section 19 Under that Explanation if there are different duties in different regions and the excisable article which has paid duty of one region is removed to another region where the duty is different the excess will have to be paid in order that prohibition of transport in that region may be removed But apart from the cases covered by the Explanation we can see no justification for reading section 10 as giving power to impose duty on the same excisable article again and again as it moves in the course of trade from say the bonded warehouse to the wholesaler and from the wholesaler to the retailer and from the retailer to the consumer Plainly therefore once the duty has been paid and the prohibition under section 10 is removed the transport of the duty paid excisable article can take place free from any further imposition except where it is transported to a region where the duty is different from the region where the duty is paid Nor do we find any power in the State Government to impose a duty at every movement during the course of trade in the words of section 19 All that section 19 empowers the State Government to do is to fix the rate of duty on transport in accordance with section 10 There is no delegation to the State Government anywhere in the Act of the power to impose duty from stage to stage during the movement of excisable articles in the course of trade It is true that the legislature has the power if it so chooses to levy duty on every movement but as we read the three provisions on which reliance has been placed we do not find any exercise of that power by the legislature Nor do we find any delegation by the legislature of any such power to the State Government The view therefore taken by the Division Bench that once the duty mentioned in section 19 has been paid the prohibition con tained in section 10 must disappear subject always to the Explanation to s 19 and that there is nothing in 52 406 s19 delegating any power to the State Government of levying excise duty more than once and at more than one point during the progress of the excisable goods from the time they leave the bonded warehouse till the time they reach the consumer is in our opinion correct It is not in dispute in this case that the Explanation to section 19 does not apply Turning now to the first proviso to section 19 A it may be noticed that that section deals with the manner of levying duty But the first proviso goes further and lays down that where the duty is levied on issue from a bonded warehouse it will be at the rate in force on the date of issue We agree with the Division Bench that this proviso has no logical connection with section 19 A and would more properly be a proviso to section 19 It has nothing to do with the manner of payment but is concerned with the liability to pay at the rate prevalent on the date of issue from the bonded warehouse If that is so the quantum of tax is once for all determined by this proviso subject always to the Explanation to section 19 and cannot be increased thereafter Reference in this connection was made to section 15 A also But that section seems to have been inserted as a measure of abundant caution and does not appear to go further than section 10 It seems to determine the time and manner of payment in cases where excisable articles are kept in a distillery or brewery or warehouse or other place of storage established or licensed under the Act where duty may not have been paid before such storage It is not the charging section and cannot be read to go beyond section 19 which is the charging section We are therefore of opinion that on this ground also no additional duty could be charged from the respondent in this case as the Explanation to section 19 has admittedly no application here The appeal therefore fails and is hereby dismissed with costs Appeal dismissed

The appellant s manager was violently attacked by its workmen as a result of which he sustained serious injuries The workers in the lower division also threatened the appellant s staff working in that division that they would murder them if they worked there The appellant was therefore compelled to notify that the division would be closed until further notice Subsequently as a result of conciliation before the labour officer the division was opened again The workers made a claim for lay off compensation under section 25C of the for the period during which the lower division was closed on the footing that the management for their own reasons did not choose to run the division during that period The appellant s answer was inter alia that the closure of the division amounted to a lock out which under the circumstances was perfectly justified and as such the workers were not entitled to claim any lay off compensation Held 1 that the concept of a lock out is essentially different from that of a lay off and where the closure of business amounts to a lock out under section 21 of the 372 it would be impossible to bring it within the scope of a lay off under section 2 kkk of the Act 2that the expression any other reason in section 2 kkk means any reason which is allied or analogous to reasons already specified in that section J K Hosiery Factory vs Labour Appellate Tribunal of India Anr AIR 1956 All 498 approved 3 that the lock out which was justified on the facts of the case was not a lay off and therefore the workmen were not entitled to claim any lay off compensation

vil Appeal No 105 of 1951 On appeal from the judgment and decree dated the 22nd November 1946 of the High Court of Judicature at Allahabad Verma c J and Mathur J in First Appeal No 310 of 1941 arising out of judgment and decree dated the 4th March 1941 of the Court of the Senior Civil Judge of Pauri Garhwal in Original Suit No 1 of 1934 KS Krishnaswamy lyengar R C Ghatak and NC Sen with him for the appellants SK Dar D D Unival with him for the respondent 850 1952 May 9 The Judgment of the Court was delivered by MUKHERJEA J The sanctity which orthodox Hindu thought and feeling attribute to visiting of sacred places is nowhere better illustrated than in the vast concourse of pilgrims who are attracted every year from all parts of India to the mountain shrines at Badrinath situated high up in the Himalayas in the District of Garhwal The place to which the appellation of Puri is given contains a number of temples but the principal temple is the one where the idol Badrinath along with some other subsidiary idols is installed This main temple is divided into three por tions or apartments and to the innermost portion which is considered to be the holiest and where the deities are located no pilgrim is allowed access The pilgrims gather in the middle room they have darshan or look at the deity from this place and there also they make their offerings and perform other rites of individual worship The last room is an outer apartment which is used as a sort of waiting place for the worshippers Outside the temple and at a short distance from it there is a hot spring known as Tapta Kundu where the worshippers take ceremonial bath before they enter into the temple and to the Tapta Kundu they come back again after the ceremonies are over The temple at Badrinath is an ancient institution and is admittedly a public place of worship for the Hindus The chief priest or ministrant of the temple is known by the name of Rawal who originally looked after both the spirit ual and temporal affairs of the idol subject to certain rights of supervision and control exercisable by the Tehri Durbar which however were not very clearly defined It appears that there was a scheme for the management of the temple framed by the Commissioner of Kumaun Division within whose jurisdiction Badrinath is situated some time in the year 1899 Under this scheme the Rawal was to be the sole 851 trustee of the Badrinath temple and its properties and the entire management was entrusted to him subject to his keeping accounts which he had to submit for approval by the Tehri Durbar and making arrangements for the disposal and safe custody of cash receipts and other non perishable valuables This scheme apparently did not work well and led to constant friction between the Rawal on the one hand and the Tehri Durbar on the other This unsatisfactory state of affairs led to public agitation and demand for reforms and in 1939 the UPLegislature passed the Sri Badrinath Temple Act the object of which was to remove the chief defects in the existing system of management The Act restricts the Rawal to his priestly duties and the secular management is placed in the hands of a small committee the members of which are partly elected and partly nominated powers being reserved to the Government to take steps against the commit tee itself if it is found guilty of mismanagement The Act preserves the traditional control of the Tehri Durbar The appellants before us who were the plaintiffs in the trial Court claim to be Pandas associated with the Badri nath temple The Pandas are Brahmans belonging to the priestly class and are found to exist in almost all impor tant public places of worship in India They are not temple priests in the proper sense of the expression and have nothing to do with the regular worship of the idol which is carried on by the Shebayat the High Priest or the manager as the case may be Their chief duty consists in acting as guides or escorts of the pilgrims and taking them to var ious places of worship acquainting them at the same time with detailed information regarding the reputed sanctity of each They look after the comforts of the pilgrims and make arrangements for their boarding and lodging and also act as Tirtha Purohits in which capacity they assist the pilgrims in the performance of various acts of individual worship as distinguished from the general worship which is conducted by or on behalf of the temple authorities 852 It is admitted that there are several classes of Pandas in Badrinath and the Deoprayagi Pandas to which category the plaintiffs belong get normally the charge of all the pil grims that come from the plains whereas the Pandas of the Dimri class act as attendants on all hill people the people coming to Badrinath from the plains generally follow the pilgrim s route from Hardwar to Badrinath and in this route at a distance of about 58 miles from Hardwar stands the place known as Deoprayag where all the Deoprayagi Pandas reside It is in the light of these few introductory facts that we propose to follow the history of this litigation and deal with the points in controversy that it has given rise to The suit was commenced by the appellants in the Court of the Senior Civil Judge of Garhwal on 16th April 1934 and the only defendant in the suit as it was filed originally was the Rawal who was at that time in entire charge of the Badrinath institution both as Trustee and High Priest The suit was a representative one and purported to be brought on behalf of all the Deoprayagi Pandas and permission of the Court under Order I rule 8 of the Civil Procedure Code was duly taken The allegations in the plaint in substance are that the plaintiffs who are a body of Brahman Purohits residing at Deoprayag and also at Badrinath have the right by immemorial custom to act as Pandas and Tirtha Purohits of the pilgrims at Badrinath It is said that in performance of their duties they meet the pilgrims at Hardwar and con duct them throughout the pilgrimage to different places of sanctity and finally to Badrinath itself Besides looking to their creature comforts they assist the pilgrims while they stay at Badrinath in having their ceremonial ablutions in the Tapta Kundu and then conduct them into the pre cincts of the temple and assist them in having 853 darshan of the idols and making offerings to them The plaintiffs aver that because of the support that they lent to the transfer of the management of the temple from the Rawal to the Tehri Durbar the defendant Rawal was displeased with them and in August 1933 wrongfully and without any just cause or excuse obstructed and threatened to obstruct the plaintiffs from entering the precincts of the temple along with their Yajmans or clients and unlawful ly restrained them from assisting the pilgrims in the usual way at the time of darshan and worship of the deities inside the temple The reliefs prayed for in the plaint after it was amended stand as follows 1 That a declaration be granted that the plaintiffs are the Pandas of Badrinath temple and that they have a right to personally go into the precincts of the Badrinath temple at all times and on all occasions without obstruction when the said temple is open for doing darshan worship etc 2 That the plaintiffs have the right freely to go into the precincts of the said temple with their Yajmans or clients whenever it is open for assisting them in the matter of darshan or worship of God Badrinarayan and other dei ties and in the matter of making offerings to them 3 That the plaintiffs have the right to take within the precincts of the said temple whatever is put into their hands as gift by their clients at the time of worship etc 4 That a perpetual injunction be issued restraining the defendant Rawal from interfering with the immemorial rights of the plaintiffs The defendant in his written statement admitted that the Pandas did sometimes accompany rich pilgrims as their guides and receive presents from them for the services they rendered It was also admitted that the plaintiffs in their individual capacity as Hindus had the right to enter the temple of Badrinath for purposes of worship It was assert ed however 854 that it was neither necessary nor desirable that the plaintiffs should be allowed to accompany their Yajmans or clients into the temple as the defendant himself made adequate arrangements for darshan and worship by thepilgrims and he as the sole trustee and manager of the temple had the right to regulate entry into the temple so that over crowding might be avoided and order maintained inside it It was further pleaded that the suit of the plaintiffs was barred by res judicata and the law of limita tion On these pleadings two issues of a preliminary nature were framed by the Civil Judge one of them being whether the plaintiffs suit was barred by res judicata This issue was decided against the plaintiff and the Civil Judge dis missed the suit on 18 9 1934 holding that the suit was barred by the rule of res judicata as an earlier suit brought by five of the Deoprayagi Pandas and claiming iden tical reliefs against the Rawal was dismissed by the Commissioner of the Kumaun Division in the year 1896 Against this order of dismissal an appeal was taken by the plaintiffs to the High Court of Allahabad and a Division Bench of the High Court by its judgment dated 23rd May 1938 reversed the decision of the Civil Judge on this preliminary point and remanded the case for hearing of the suit on its merits The case then went back before the Civil Judge and while it was still pending the Sri Badrinath Temple Act was passed A temple committee being formed in accordance with the provisions of this Act the said committee through its Secretary was impleaded as Defendant No 2 in the suit The committee filed a fresh written statement in which certain additional grounds were taken It was contended primarily that the suit as framed was not maintainable by reason of the provisions of Sri Badrinath Temple Act of 1939 which abrogated all previous rights and customs and vested the ownership of the temple and its endowments in the temple committee It was asserted further that all gifts made within the precincts of the temple would vest in the temple 855 committee under section 3b of the Act and that the commit tee had the absolute right to regulate entry of persons inside the temple A number of issues were framed after this written state ment was filed and on hearing the evidence adduced by the parties the Civil Judge disposed of the suit by his judg ment dated 4th March 1941 The suit was decreed in part and the plaintiffs were given a declaration in their favour on one of the points in an attenuated and restricted form Besides certain pleas in bar which were raised by the de fendants in their written statements and in regard to which the trial judge s decision was in favour of the plaintiffs the substantial controversy between the parties centred round the two following points 1 Whether the Deoprayagi Pandas could accompany their Yajmans or clients inside the temple and assist them in the darshan and worship of the deities 2 Whether the Pandas would have the right to accept within the precincts of the temple whatever was paid by the pilgrims as gifts or presents to them and not to the temple As regards the first point the learned Civil Judge reviewed the entire evidence relating to the practice of admitting the Pandas along with their Yajmans inside the temple as it obtained from very early times down to the date of the institution of the suit It appears that in 1892 certain rules were framed by the then Rawal for regulation of pilgrims in the Badrinath temple and to these rules the Commissioner of Kumaun Division accorded his sanction on 4th July 1892 One of these rules namely Rule 3 expressly laid down that at the time of darshan by the pilgrims no other persons and Pandas shall be allowed to go inside the temple along with the pilgrims On 22nd October 1894 an application was filed before the Commissioner of Kumaun Division by some residents of Deoprayag complaining of unjust prohibition from entering the temple by the new manager and it was prayed that directions might 111 856 be given to the said Manager to desist from encroaching upon the time honoured rights of the Pandas On 28th October 1894 the Commissioner ordered that a copy of the petition might be sent to the Manager for report and in the body of the order he recorded his opinion that the duty of the Pandas consists normally in escorting the pilgrims to the temple precincts Their entering the temple can be permitted when they did so as pilgrims The petition was eventually rejected and on 19th August 1895 five Deopray agi Pandas filed a suit in the Court of the Deputy Collec tor Garhwal who was invested with the powers of a Civil Court praying for a declaration of their right to go inside the temple with their Yajmans which the Rawal was not willing to allow unless he gave special permission The trial court allowed the plaintiffs prayer but on appeal the judgment was reversed and the suit was dismissed This order of dismissal was affirmed on Second Appeal by the Commissioner of Kumaun Division who had the powers of a High Court in regard to this area by his order dated 9th March 1896 This is the earlier decision on the strength of which the plea of res judicata was taken by the defend ant in the present suit According to the learned Civil Judge after the rules as mentioned above were framed in 1892 and the judgment of the Commissioner Kumaun Division in the Civil Suit was given in 1896 it was the Rawal who decided whether or not he would give permission to any particular Panda to go inside the temple as an escort of his Yajmans and practice was almost uniform on this point down to the year 1903 The same practice prevailed according to the learned Judge from 1903 to 1920 From 1921 however the practice became lax to a great extent and from the evidence of respectable witnesses examined on behalf of the plaintiffs the learned Judge was of opinion that in many cases the Pandas were able to go inside the temple without any let or hindrance and without seeking any express permission from the Rawal A definite challenge to the rights of the Pandas occurred again in 1933 which led 857 to the institution of the present suit After reviewing this evidence the learned Civil Judge discussed the provi sions of the Shri Badrinath Temple Act bearing on this point and summed up his conclusions as follows In my view under the scheme of the Shri Badrinath Act the Pandas or pilgrims have no absolute right to go inside the temple regardless of the conditions imposed by the Committee about entry into the temple but ordinarily in the entry of the pilgrims or Pandas is in accordance with the rules or bye laws framed by the Committee the pilgrims can always go inside accompanied by their Pandas who are enti tled as devout Hindus to go inside the temple and perform worship there and can assist their Yajmans also In other words there is no right of the plaintiffs which has to be recognised and can be recognised on the grounds of custom usage or otherwise that they can without any let or hin drance and regardless of the conditions imposed by the Committee enter the temple with the pilgrims whenever they like Like other pilgrims and persons who are all subject to the control of the conditions that may be imposed by the Committee the Deoprayagi Pandas can also enter the temple perform worship there and even help their Yajmans who happen to be inside the temple To lay down an absolute prohibition against them would not be in accordance with the provisions of Shri Badrinath Temple Act and similarly to recognise that they have an absolute right to enter the temple with the pilgrims would also nullify a number of provisions in the Shri Badrinath Temple Act Issue No 2 is decided accordingly in the negative but subject to recogni tion of the conditional right of the plaintiffs to accompany their pilgrims and help them in the darshan as mentioned above subject to the control of the Committee In spite of this finding which is certainly not very definite the Court dismissed in toto the plaintiffs prayer No 2 in the plaint the reason given being that 858 no absolute right as was claimed by the plaintiffs was established on the footing of a custom or otherwise As regards the other point the learned Judge was of opin ion that although a Panda had no absolute right to go inside the temple along with his clients yet if the commit tee or the temple authorities allowed him to do so there was nothing in law or custom which could prevent him from accepting a gift which any pilgrim might desire to make in his favour The result was that the learned Judge gave the plaintiffs a declaration in the following terms The plaintiffs suit is decreed for a declaration that they have a right to accept within the precincts of the temple whatever was put into their hands as gifts Dan or Dakshina or Shankalp by the pilgrims for the benefit of the plaintiffs and not the temple and to retain such gifts for their personal benefit This right is however subject to the administrative control of the temple committee so far as the maintenance of order and decency and the enforcement of proper behaviour within the temple are concerned The exercise of this right will further be restricted by any special or general conditions imposed by the Committee of management under any bye law framed by it in accordance with the provisions of Shri Badrinath Temple Act or any other special law that may hereafter be applicable to the temple The rest of the plaintiffs claim was dismissed Against this judgment the plaintiffs took an appeal to the High Court of Allahabad The defendants also preferred cross objections challenging the propriety of that part of the trial Court s decree which was in favour of the plain tiffs The appeal was heard by a Division Bench consist ing of Varma CJ and Mathur J and by their judgment dated 22nd November 1946 the learned Judges dismissed the plaintiffs appeal and allowed the cross objections filed by the defendants Thus the decision resulted in a total dismissal of the plaintiffs suit It is from this judgment that the present appeal has come before us 859 It was held by the High Court that the plaintiffs failed miserably to establish that there was any immemorial usage in existence under which they were entitled to accompany the pilgrims as of right inside the precincts of the temple It was held also that even if any such usage existed that must be deemed to have been abrogated by the provisions of Shri Badrinath Temple Act and reference was made in this connection to section 25 1m of the Act which empowers the temple committee to frame bye laws not inconsistent with the provisions of the Act for the maintenance of order inside the temple and regulating the entry of persons there in It is to be noted that after the judgment of the trial court was delivered and the appeal came up for hearing before the High Court the Badrinath Temple Committee passed a resolution which was approved of by the Governor of the UP State and was to the following effect Subject to the provision of bye laws and any direction given by the committee the Pandas can accompany their Yajmans within the temple This resolution was communicated to the plaintiffs by the 2nd defendant by a letter dated 29th May 1942 and undoubtedly after passing of this resolution the grievance of the plaintiffs in regard to temple entry disappeared to a large extent The High Court however refused to give the plaintiffs a declaration of their right in this respect even in a limited form as in its opinion the plaintiffs could not claim such declaration as a matter of right The view taken by the High Court seems to be that it is entirely for the committee to decide whether the Pandas should be al lowed to enter the temple at all and if so to what extent and under what conditions On the other question relating to the right of the plaintiffs to accept gifts made in their favour by the pilgrims within the precincts of the temple it was held by the High Court that under section 3 b of the Shri Badri nath Temple Act such gifts would become part of the endow ment and the donees would be 860 incapable of laying any claim to the same It was further held that bye law 8 of the Puja Bye laws framed by the temple committee which prevents a person other than those whose rights have been specifically recognised by the Committee from receiving any gifts within the precincts of the temple was quite a legitimate provision the making of which was within the rule making authority of the committee of management It was held therefore that in view of this rule the plaintiffs claim in regard to receiving of gifts within the temple was not maintainable in law MrIyengar appearing in support of the appeal before us has assailed the propriety of the High Court s decision on both these points The first point that requires consideration is whether the plaintiffs can on the facts admitted and found in this case claim a declaration of their right to accompany the Yajmans or clients inside the Badrinath temple and assist them in having darshan of the deities and in performing such ceremonies as individual worshipers may perform Mr Dar who appears on behalf of the respondents draws our attention to the fact that this right has practically been conceded by the temple committee in their resolution passed in March 1942 referred to already The learned counsel has very fairly stated to us that he would have no objection if the plaintiffs are given a declaration of their rights in this respect in some suitable form as might safeguard their interest without in any way trenching upon the rights of temple committee and thereby obviate all disputes in the future It seems to us that the approach of the court below to this aspect of the case has not been quite proper and to avoid any possible misconception we would desire to state succinctly what the correct legal position is Once it is admitted as in fact has been admitted in the present case that the temple is a public place of worship of the Hindus the right of entrance into the temple for purposes of darshan or worship is a right 861 which flows from the nature of the institution itself and for the acquisition of such rights no custom or in memorial usage need be asserted or proved As the Panda as well as his client are both Hindu worshippers there can be nothing wrong in the one s accompanying the other inside the temple and subject to what we will state presently the fact that the pilgrim being a stranger to the spot takes the assistance of the Panda in the matter of darshan or worship of the deities or that the landa gets remunera tion from his client for the services he renders does not in any way affect the legal rights of either of them In law it makes no difference whether one performs the act of worship himself or is aided or guided by another in the performance of them If the Pandas claim any special right which is not enjoyed ordinarily by members of the Hindu public they would undoubtedly have to establish such rights on the basis of custom usage or otherwise This right of entry into a public temple is however not an unregulated or unrestricted right It is open to the trustees of a public temple to regulate the time of public visits and fix certain hours of the day during which alone members of the public would be allowed access to the shrine The public may also be denied access to certain particularly sacred parts of the temple eg the inner sanctuary or as it is said the Holy of Holies where the deity is actually located Quite apart from these it is always competent to the temple authorities to make and enforce rules to ensure good order and decency of worship and prevent overcrowding in a temple Good conduct or orderly behaviour is always an obligatory condition of admission into a temple 1 and this principle has been accepted by and recognised in the Shri Badrinath Temple Act section 25 of which provides for framing of bye laws by the temple committee inter alia for maintenance of order inside the temple and regulating the entry of persons within it2 1 Vide Kalidas Jivram vs Gor Parjaram ILR 15 Bom p 309 Thackeray vs Harbhum ILR 8 Bom p 432 2 Vide Section 25 1m 862 The true position therefore is that the plaintiffs right of entering the temple along with their Yajmans is not a precarious or a permissive right depending for its existence upon the arbitrary discretion of the temple authorities it is a legal right in the true sense of the expression but it can be exercised subject to the restrictions which the temple committee may impose in good faith for maintenance of order and decorum within the temple and for ensuring proper performance of customary worship In our opinion the plaintiffs are entitled to a declaration in this form We now come to the other point which is the real bone of contention between the parties to this appeal and the question for consideration is whether the plaintiffs are entitled to a declaration that they have a right to take within the precincts of the temple whatever is put into their hands as gifts by their clients at the time of wor ship The trial court as pointed out above gave the plaintiffs a qualified declaration on this point though the High Court rejected this claim altogether Mr Iyengar has vehemently assailed the propriety of the grounds upon which the decision of the High Court rests whereas Mr Dar has contended inter alia that the claim of the plaintiffs under this head is wholly untenable in view of the provision of bye law 8 of the Puja Bye laws framed by the temple committee It may be stated at the outset that as the gift if any which a pilgrim might choose to make within the temple precincts is entirely a voluntary act on his part and as he could not be compelled to make a gift either in favour of the Pandas or anybody else there could strictly speaking be no legal right in the plaintiffs to receive any gift from his client which can be declared by a court of law The plaintiffs do accept the position that the pilgrims are not bound to give anything to the Pandas by way of Dakshina or sacrificial fee at the conclusion of the ceremonies in the temple but what they say is this that if the pilgrims choose to make any gift to them the temple committee could 863 not in law prevent the latter from accepting the same and treat such gifts as part of the temple property It is argued that bye law 8 of the Puja Bye laws is illegal and ultra vires and cannot take away the legal right of the donee to the gifted property under the ordinary law which has not been and cannot be affected in any way by the provi sions of the Sri Badrinath Temple Act A number of respectable witnesses examined on behalf of the plaintiffs do say that when they went on pilgrimage to Badrinath they made gifts to their Pandas inside the temple at the close of the ceremony of darshan and worship But the evidence taken even at its face value does not estab lish that the practice of making gifts to Pandas within the temple is a general one or that the pilgrims regard it as an indispensable part of the ceremony of worship many of the witnesses plainly admit that they do not remember to have made any gifts at all within the temple precincts and others say that they paid dakshina or sacrificial fees to all the Brahmans who were found inside the temple at that time and not exclusively to their Pandas It is also stated that suphal or final blessing is Obtained from the Pandas by the pilgrims after making presents to them at the place called Tapta Kundu where the hot spring lies which is outside the temple Mr Iyengar has drawn our attention to certain texts from the Kedar Kanda of Skanda Purana which describe the glory of the deity Badrinath to show that it is a religious duty enjoined by the Hindu scriptures that a worshipper who goes to Badrikasram should make gifts to Brahmans after the darshan of the idol is obtained and offerings are made to it An English rendering of the passages relied upon by the learned counsel would read thus After having bathed in the Ganges in the Narada Hrada Kund and others Hradas one worshipper shall bathe in the Vahni Tirth Tapta Kunda after performing the obliga tory duties and with his mind 112 864 kept under control he shall go into the temple of Badri nath with his mind concentrated on Shri Hari He shall make offerings to the best of his capacity and with utmost devo tion Then he shall look at the All Pervading Narayana from crown to foot and HERE make gifts to Brahmans to the best of his capacity Thereafter he shall do PRADAKSHINA go round with the utmost devotion Then he shall come back to the Tirthas Vahni Tirtha etc and make gifts according to his means1 It cannot and is not disputed that according to ortho dox Hindu ideas gift to Brahmans is considered as a merito rious act and there are texts to some of which Mr Iyengar drew our attention which extol the merits of such gifts when made at a sacred place or within a temple or on the banks of a holy river It may be as Mr Iyengar suggests that the idea of making gifts within the temple had its origin in the religious texts to which the learned counsel drew our attention But the point that requires considera tion in the present case is a different and much narrower one The question is whether under the powers of making bye laws which are conferred by the Sri Badrinath Temple Act upon the managing committee the latter could make a rule as they have done by which all persons other than those whose rights are specifically recognised are disabled from receiv ing gifts within the precincts of the temple It is perfectly true that under the general law nobody can be prevented from accepting a gift which another person may be inclined to make in his favour and it is immate rial in such cases at what place the gift is actually made One has to enquire therefore on what grounds the committee can interdict the taking of any gifts within the temple precincts The High Court seems to be of opinion and this view is sought to be supported on behalf of the respondents before us that the Sri Badrinath Temple Act itself has in express 1 Skanda purana Kedar Khand Badri Mahatma Chapter VI Verses 46 49 865 terms abrogated the rights of the donee in regard to a gift made to him within the temple and as such gifts come within the definition of endowment as given in the Act the temple committee gets a controlling hand over them and can make any regulations in relation thereto Reliance is placed in this connection upon section a b of the Sri Badrinath Temple Act which lays down that the expression endowment in relation to the Act means all property moveable or immoveable belonging to or given or endowed for the maintenance or improvement of or additions to or worship in the temple or for the performance of any service or charity connected therewith and includes the idols in stalled therein the premises of the said temple and gifts of property made to anyone within the precints of the tem ple The definition is undoubtedly couched in very wide language but it is to be noted that under section 4 of the Act which deals with the vesting of property a gift does not vest in the temple at all unless it is made for the benefit of the temple or for the convenience comfort or benefit of the pilgrims It is conceded by Mr Dar that a gift intended for the personal benefit of the Pandas cannot vest in the temple and this is quite in accordance with the existing principles of Hindu law He contends however that such gifts could not vest in the donee as well in accordance with the definition of endowment given in section a b of the Sri Badrinath Temple Act In other words according to the interpretation which he would like to put upon sec tion 3 b of the Act such gifts should be regarded as totally void after the passing of the Act and consequently title to the thing given would still remain in the donor even after the gift is made This does not seem to us to be a sound view to take If a legislation wants to take away the proprietary right which a person acquires under the ordinary law it must express its intention in clear and unambiguous terms We are unable to spell any such intention out of the language used in section 3 b of the Sri 866 Badrinath Temple Act It may be that the wording of this sub section is defective and that there is an apparent conflict between the provision of this sub section and that of section 4 of the Act It is an arguable point whether the expression gifts of property made to any one should not be construed to mean grits made to any one for the benefit of the temple or for other purposes as are specified in section 4 But it is not necessary for our purpose to express any opinion on that point in the present case All that we desire to say is that there is nothing in the Sri Badrinath Temple Act which lays down that a gift made to any person inside the temple and intended for the benefit of that person shall not belong to him But even if the gifts made within the temple and intend ed for the benefit of the donee personally cannot vest in the temple under section 4 04 the Sri Badrinath Temple Act the question still remains whether the committee in exercise of their powers to make bye laws can frame a rule that no such gifts should be allowed to be made within the temple and whatever gifts the pilgrims might choose to make in favour of any person which is unconnected with offerings to the deity must be made outside the temple precincts Section 25 of the Act empowers the committee to make bye laws not inconsistent with the Act or the rules made thereunder or any other law for a variety of purposes which are enumerated in the different clauses of the sec tion and clauses m and n run as follows m The maintenance of order within the temple or inside the temple and regulating the entry of persons there in and n The performance of duties prescribed in section 23 Section 23 lays down the duties of the committee and sub section 9prescribes it to be duty of the committee to do all such things as may be incidental and conducive to the efficient management of the temple and endowments and the convenience of the 867 pilgrims In our opinion bye law 8 of the Puja Bye laws referred to above which forbids the acceptance of the gifts by any person within the temple unless he comes within the category of persons specifically authorised by the committee to receive the same is a perfectly legiti mate bye law which it was quite competent for the committee to enact under the terms of clauses mand nof 25 referred to above It will be remembered that the religious duty to make gifts within the temple or at sacred places which is enjoined on Hindu worshippers by the texts relied upon by Mr Iyengar has no particular reference to the Pandas who accompany the worshipper The injunction is to make gifts in favour of Brahmans generally and the Pandas because they are Brahmans and happen to be available at the spot naturally become recipients of such gifts It is a thing too well known to require mention that in many of the Hindu temples of renown in India the pilgrims after their worship is finished or even before that are literally beseiged by an army of mendicants including many Sadhus or ascetics the begging Brahmans who abound in all sacred places and even people who are associated with various duties in the temple itself The presence of a large number of such persons who certainly do not come inside the temple as worshippers is positively detrimental to the maintenance of good order decency and solemnity in the temple and not unoften it is a source of very great annoyance and discomfort to the pil grims themselves It seems to us that one of the objects which the temple committee had in view in framing these byelaws was to prevent this religious mendicancy showing it itself in an unseemly manner within the precincts of the temple itself Bye law 8 of the Puja Bye laws referred to above which prevents taking of a gift by any person within the temple lays down furtherthat the permanent employees of the temple shall not receive or solicit for any remunera tion reward or Dakshina in any form from the pilgrims This prohibition is not confined to the temple but extends also 868 to places outside it Then again bye law 15 specifi cally provides that no Sadhu or beggar shall beg or sit for begging for alms within the temple We think therefore that for the purpose of preventing overcrowding within the temple and to ensure order decency and worshipful behaviour on the part of those who enter into it the committee was quite justified in framing this bye law which lays down in substance that whatever gifts a pilgrim might be desirous of making and which is unconnected with the offerings to the deity shall be made outside the temple precincts and not inside it In our opinion the Pandas do not stand to lose anything by reason of this regulation and their grievance is more or less a sentimental one As we have said already the gift intended for the Pandas can under no circumstances vest in the temple but a regulation of this character could certainly be deemed to be necessary as conducive to efficient management of the temple and endowments the convenience of the pilgrims and the maintenance of order and decent behaviour within the temple precincts We do not see how such bye law can be said to be in any way inconsistent with the provisions of the Act It is certainly confined to the circumstances contem plated by the Statute itself and is not repugnant to the general principles of Hindu law which we have referred to already It does not in our opinion take away the proprie tary right of any person which is recognised under ordinary law Thus although we cannot agree with the High Court of Allahabad regarding the interpretation that it has put upon sections 3 b and 4 of the Act we think that bye law 8 of the Puja Bye laws is perfectly valid and is within the ambit of the powers conferred upon the committee by section 25 of the Act The appeal is thus allowed only in part The plain tiffs shall have a declaration that they are entitled to accompany their Yajmans inside the temple subject to any bye law or rule made by the committee in proper exercise of their powers under section 25 of 869 the Sri Badrinath Temple Act The other prayer of the plaintiffs is rejected As the appeal succeeds in part and as it raised ques tions of general importance with regard to which there were longstanding disputes between the parties we think that the proper order should be to direct each party to bear his own costs in all the Courts The costs of the defendant shall come out of the temple funds Appeal allowed in part Agent for the respondent section section Sukla

A workman against whom an enquiry is being held by the management has no right to be represented at such enquiry by a representative of his union though the employer in his discretion can and may allow him to be so represented In such enquiries fairly simple questions of fact as to whether certain acts of misconduct were committed by a workman or not fall to be considered and the workman is best suited to conduct the case Ordinarily in enquiries before domestic tribunals a person accused of any misconduct conducts his own case and so it cannot be said that in any enquiry against a workman natural justice demands that he should be represented by a representative of his Union

Appeal No 3471959 Appeal by special leave from the Award dated October 171957 of the Industrial Tribunal No 11 Ernakulam in Industrial Dispute No 63 of 1956 section Govind Swaminadhan and P Ram Reddy for the appellant Jacob A Chakramakal and K Sundararajan for respondent No1 K R Choudhry for respondent No 2 1960 April 4 The Judgment of the Court was delivered by 452 DAS GUPTA J On August 9 1955 the Union of the workmen of the Chandramalai Estate submitted to the Manager of the Estate a memorandum containing fifteen demands Though the management agreed to fulfil some of the demands the principal demands remained unsatisfied On August 29 1955 the Labour Officer Trichur who had in the meantime been apprised of the position by both the management of the Estate as well as the Labour Union advised mutual negotiations between the representatives of the management and workers Ultimately the matter was recommended by the Labour Officer to the Conciliation Officer Trichur for conciliation The Conciliation Officer s efforts proved in vain The last meeting for Conciliation appears to have been held on November 30 1955 On the following day the Union gave a strike notice and the workmen went on a strike with effect from December 9 1955 The strike ended on January 5 1956 Prior to this on January 5 the Government had referred the dispute as regards five of the demands for adjudication to the Industrial Tribunal Trivandrum Thereafter by an order dated June 11 1956 the dispute was withdrawn from the Trivandrum Tribunal and referred to the Industrial Tribunal Ernakulam By its award dated October 17 1957 the Tribunal granted the workmen s demands on all these issues The present appeal has been preferred by the management of the Chandramalai Estate against the Tribunal s award on three of these issues These three issues are stated in the reference thus 1 Was the price realised by the management for the rice sold to the workers after decontrol excessive and if so are the workers entitled to get refund of the excessive value so collected 2 Are the workers entitled to get cumbly allowance with retrospective effect from the date it was stopped and what should be the rate of such allowance 3 Are the workers entitled to get wages for the period of the strike On the first issue the workmen s case was that after the control on rice was lifted by the Travancore Cochin Government in April 1954 the management 453 which continued to sell rice to the workmen charged at the excessive rate of 12 annas per measure for rice bought in excess of a quota for 1 12 measure per head This according to the workmen was improper and unjustified and they claimed refund of the excess which they have been made to pay The management s case was that the workmen were not bound to buy rice from the Estate s management and secondly that only the actual cost price and not any excess had been charged The tribunal held on a consideration of oral and documentary evidence that the management had charged more than the cost price and held that they were bound to refund the same The second issue was in respect of a claim for cumbly allowance Chandramalai Tea Estate is situated at a high altitude It is not disputed that it had been customary for the Estates in this region to pay blanket allowance to workmen to enable them to furnish themselves with blankets to meet the rigours of the weather and that it had really become a part of the terms and conditions of service But in spite of it the management of this Estate stopped payment of the allowance from 1949 onwards and resumed payment only in 1954 The management s defence was that any dispute not having been raised about this till August 9 1955 there was no reason for raising it at this late stage The Tribunal rejected this contention and awarded cumbly allowance of Rs 39 per workman made up of Rs 7 per year for the years 1949 1950 and 1951 and Rs 9 per year for the years 1952 and 1953 On the third issue while the workmen pleaded that the strike was justified the management contended that it was illegal and unjustified The Tribunal held that both parties were to blame for the strike and ordered the management to pay workers 50 of their total emoluments for the strike period On the question of excess price of rice having been collected the appellant s contention before us is limited to the question of fact whether the Tribunal was right in its conclusion that more than cost price was realised The Tribunal has based its conclusion as regards the price realised by the management on entries made in 58 454 the management s own documents As regards what such rice cost the management it held that for the months of April July and August and September the price was shown by the management s documents while for May and June these documents did not disclose the price For these two months the Tribunal held the market price of rice as proved by the workers witness No 6 to have been the price at which the Estate s management procured their rice We are unable to see anything that would justify us in interfering with these conclusions of facts Indeed the documents on which the Tribunal has based its conclusions were not even made part of the Paper Book so that even if we had wanted to consider this question ourselves it would be impossible for us to do so We are satisfied that the Tribunal was right in its conclusions as regards the cost price of rice to the manage ment and the price actually realised by the management from workmen The management s case that the workmen were charged only the cost price of rice has rightly been rejected by the Tribunal The fact that workmen were not compelled to purchase rice from the management is hardly material the management had opened the shop to help the workmen and if it is found that it charged excess rates in fairness the workmen must be reimbursed The award in so far as it directed refund of the excess amount collected on the basis of the figures found by the Tribunal cannot therefore be successfully challenged On the question of the cumbly allowance it is important to note that the only defence raised was that the demand had been made too late The admitted fact that it had been regularly paid year after year for many years till it was stopped in 1949 is sufficient to establish the workmen s case that payment of a proper cumbly allowance had become a part of their conditions of service We do not think that the mere fact that the workmen did not raise any dispute on the management s refusal to implement this condition of service till August 9 1955 would be a sufficient reason to refuse them such payment The management had acted arbitrarily and illegally in stopping payment of these allowances from 1949 to 1954 They 455 cannot now be heard to say that they should not be asked to pay it merely because the years have already gone by It is reasonable to think that even though the management did not pay the allowance the workmen had to provide blankets for themselves at their own expense The Tribunal has acted justly in directing payment of the allowances to the workmen for the years 1949 to 1953 The correctness of the rates awarded by the Tribunal is not challenged before us The Tribunal s award on this issue also is therefore maintained This brings us to the question whether the tribunal was right in awarding 50 of emoluments to the work men for the strike period It is clear that on November 30 1955 the Union knew that conciliation attempts had failed The next step would be a report by the Conciliation Officer of such failure to the Government and it would have been proper and reasonable for the Union to address the Government at the same time and request that a reference should be made to the Industrial Tribunal The Union however did not choose to wait and after giving notice on December 1 1955 to the management that it had decided to strike from December 9 1955 actually started the strike from that day It has been urged on behalf of the appellant that there was nothing in the nature of the demands to justify such hasty action and in fairness the Union should have taken the normal and reasonable course provided by law by asking the Government to make a reference under the Industrial Disputes Act before it decided to strike The main demands of the Union were about the cumbly allowance and the price of rice As regards the cumbly allowance they had said nothing since 1949 when it was first stopped till the Union raised it on August 9 1955 The grievance for collection of excess price of rice was more recent but even so it was not of such an urgent nature that the interests of labour would have suffered irreparably if the procedure prescribed by law for settlement of such disputes through industrial tribunals was resorted to After all it is not the employer only who suffers if production is stopped by strikes While on the one 456 hand it has to be remembered that strike is a legitimate and sometimes unavoidable weapon in the hands of labour it is equally important to remember that indiscriminate and hasty use of this weapon should not be encouraged It will not be right for labour to think that for any kind of demand a strike can be commenced with impunity without exhausting reasonable avenues for peaceful achievement of their objects There may be cases where the demand is of such an urgent and serious nature that it would not be reasonable to expect labour to wait till after asking the Government to make a reference In such cases strike even before such a request has been made may well be justified The present is not however one of such cases In our opinion the workmen might well have waited for some time after conciliation efforts failed before starting a strike and in the meantime to have asked the Government to make the reference They did not wait at all The conciliation efforts failed on November 30 1955 and on the very next day the Union made its decision on strike and sent the notice of the intended strike from the 9th December 1955 and on the 9th December 1955 the workmen actually struck work The Government appear to have acted quickly and referred the dispute on January 3 1956 It was after this that the strike was called off We are unable to see how the strike in such circumstances could be held to be justified The Tribunal itself appears to have been in two minds on the question Its conclusion appears to be that the strike though not fully justified was half justified and half unjustified we find it difficult to appreciate this curious concept of half justification In any case the circumstances of the present case do not support the conclusion that the strike was justified at all We are bound to hold in view of the circumstances mentioned above that the Tribunal erred in holding that the strike was at least partially justified The error is so serious that we are bound in the interests of justice to set aside the decision There is in our view no escape from the conclusion that the strike was unjustified and so the workmen are not entitled to any wages for the strike period 457 We therefore allow the appeal in part and set aside the award in so far as it directed the payment of 50 of the total emoluments for the strike period but maintain the rest of the award There will be no order as to costs Appeal allowed

The respondent held a trade and import licence for foreign liquor as well as a vendor s licence under the Bombay Abkari 51 398 Act It kept liquor in a bonded warehouse On April 2 1948 the appellant asked the respondent to remove the liquor from the bonded warehouse after paying the necessary excise duty The respondent paid the duty got the transport permits and took over the liquor some of which it sold On December 16 1948 the appellant issued a notification doubling the duty on foreign liquor and called upon the respondent to pay the additional duty on the liquor which was still lying in its godown The respondent contended that the imposition of additional duty on the stock on which duty had already been paid at the time of its issue from the bonded warehouse was illegal The appellants case was that the respondent was bound to pay the duty prevailing on the transport of liquor at the time of transporting the same from its premises to another place within the State of Bombay Held that the imposition of the additional excise duty was illegal Once the duty had been paid the liquor could be transported free from any further imposition except where it was transported to a region where the duty was different from the region where the duty was paid There was no power in the State Government to impose duty at every movement during the course of the trade Though there was power in the legislature to levy duty at every movement of liquor it had not exercised that power nor had it delegated such power to the State Government