March 12

SUPREME COURT REPORTS (1953)

RAM NARAYAN SINGH

THE srATE OF DELHI AND OTHERS. [PATANJALr SAs1nr C. J., MrKHER.TEA, S. R. DAs, GHULAM HASAN and BHAGWATI JJ.]

Criminal trial-Adjouriiment of case -No order remanding accused to custody - Legality of detention ·-Criminal Procedure Code, 1898, s. 344-Habeas corpus.

In habeas corpus proceedings the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings.

Section 344 of the Criminal Procedure Code requires a Magis trate, if he chooses to adjourn a case, " to remand by warrant the accused if in custody" and provides further that every order made under this section by a Court other than a High , Court shall be in writing. Where a trying Niagistrate adjourned a case by an order in writing but there was nothing in writing on the record to show that he made an order remanding the accused to custody: Held, that the detention of the accused after the order of adjournment was illegal.

Those who feel called upon to deprive other persons of their personal liberty in the discharge of ovhat they conceive to be their duty, must strictly and scrupulously observe the forms and rules of the law.

ORIGINAL JURISDICTION: Petition No. 54 of 1953.

Petition under Article 32 of the Constitution for a writ in the nature of habeas corpus.

Jai Gopal Sethi and Veda Vy'.Ls (S. K. K'ip1ir, A. K. Dutt, A. N. Chana, R. Pathnaik and A. N. Sinha, with them) for the petitioners.

C. K. Daphtary, Solicitor-General for India (Porus A. Mehta, with him) for the respondents.

1953. March Ll. The J udgmeut of the Court was delivered by the Chief Justice.

PATANJALI SASTRI c. J.-This is a petition for a writ of habeas corpus filed by one Ham Narayan

Singh on behalf of four gentlemen, namely, Dr. S. P.

Mukerjee, Shri N. C. Chatterjee, Pandit Nandlal Sharma and Pandit Guru Dutt Vaid, who are the

ral petitioners in the case.

These persoIJ, s were

arre.sted on the evening of the 6th March, 1953, and they are now being prosecuted for alleged defiance of an order prohibiting meetings and processions in the area in question, au offence punishable under section 188 of the Indian Penal Code.

Their detention is sought to be justified ou the basis of two remand orders, the one alleged to have been passed by :\1 r. Dhillon, Additional District Magistrate, Delhi; at about 8 p. m. on the 6th March, 1953, aud the other alleged to have been passed by the tryiug Magistrnte at about 3 p. m. on the 9th March while adjourning the case on the re.presentation made before him that a habeas corpu.i petition was being moved in this Court.

Various questions of law and fact have been argued before us by Mr. Sethi on behalf of the petitioner, but we consider it unnecessary to enter upon a discussion of tho, e questions, as it is now conc'eded that the first order of remand d::ited the. 6th March even assuming it was a valid one expired on the 9th :\larch and is no longer in force.

As regard; the order of remand alleged to have been made by the trying Magistrate on the 9th March, the position is as follows :-The trying Magistrate was obviously proceeding at that >tage nuder section 344 of the Criminal Procedure

Code, which requires him, if he chooses to adjourn the case pending before him, "to remand by warrant the accused if in custody," and it goes on to provide: Every order made under this section by a court other than a High Court shall be in writing signed by the presiding Judge or Magistrate.

The order of the

~Iagistrate under this section was produced before us in compliance with an order of this Court made on the 10th March, which directed the production in this Court as early as possible of the records before the Additional District Magistrate and the trying l\if.agistrate together with the remand papers for inspection by Counsel for the petitioner.

The order produc"ed merely directs the adjournment of the case till the 11th March and coutains no direction for remanding the accused to custody till that date. Lasb

Riun. Narayan

Singh

The State of Delhi and Others.

Patanjaii Sastri 0. J,

Wb8

Ra11t Narayan

Singh

Th• State of Delhi and Othdrs.

Patanjali Sastri G. J.

SUPREME COCRT REPOHTS (1953]

evening, four slips oJ paper were' handed to. the Registrar of this Court at 5-20 p. m.

On one side they purport to be warrants of detention dated 6th March and addressed to the Superintendent of Jail, Delhi, directing the accused to be kept in judicial lock-up and to be produced in court on the 9th March 1953.

These warrants contain on their back the following endorsements : '''Remanded to judicial till 11th March, 1953." , ' In a question of habeas corpus, when the lawfulness or otherwise of the custody of the persons concerned is in question, it is obvious that these documents, if genuine would be of vital importance, but they were not produced, notwithstanding the clear direction contained in our order of the 10th March. 'rhe court records produced before us do not contain any order of remand made on the 9th March.

As we have already observed, we have the order of the trying Magistrate merely adjourning the case to the 11th.

Tbe Solicitor-General appearing on behalf of the Government explains that these slips of paper, which would be of crucial importance to the case, were with a police officer who was present in court yesterday, but after the Court rose in the evening the latter thong ht that their production might be of some importance and therefore they were filed before the .Registrar at 5-20 p. m. vVe cannot take notice of documents produced in such circumstances,. and we are not satisfied that there was any order of remand committing the accused to further custody till the 11th March. It has been held by this Court that in habeas corpus proceedings, the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings. The material date on the facts of this case is the 10th March, when the affidavit on behalf of the Government was filed justifying the detention as a lawful one.

But the position, as we have stated, is that on that date there was no order remanding the four persons to custodv. !j'his Court has often reiterated before that those who

feel called upon to deprive other persons of their persoi; ial liberty in the discharge of what they conceive to be then duty, must strictly and scrupulously observe the forms and rules of the law.

That . has not been done in this case.

The petitioners now before us are therefore entitled to be released and they are set at liberty forthwith. ' Petition allowed.

Agent for the petitioner: Ganpat Rai.

Agent for the respondents: G. H. Rajadhyakshri.

SATISH CHANDHA ANAND

THE UNION OF iNDIA.

(PATANJALI SASTRI 0.J.,'MUKHEHJEA, VIVIAN BOSE,

GHULA~I HASAN and BHAGWATI JJ.]

Constitution of India, 1050, Arts. 14, 16, 311- Civil servant- Appointment on contract for 5 years-Continuation of appointment on temporary service basis-Tarrnination of service on one month's notice-Legality- Fundamental rights-Central Civil Services (Temporary Service) Rules, 1949, r. fi.

The petitioner was employed by the Government of India on . a five year contract in the Resettlement and Employment Directorate of the Ministry of Labour. When bis contract was due to expire the Government made him a n.ew offer to continu~ him n service in his post temporarily for the period of the Resettlement and Employment Organisation on the condition that he will be governed by the Central Ciyil Services (Temporary Service) Rules, 1949, which provided for termination of the contract by one month's notice on either side. He accepted \be offer and continued in service, but subsequently his services were terminated after giving him one month's notice. Thepetitioner applied for reiief under Art. 32 (1) of the Constitution alleging Iba\ his fundamental rights under Arts. 311, 14 and 16 (1) of the Constitution were infringed: Held, (i) that Art. 311 bad no application as this was not a case of dismissal or removal from service nor a reduction in rank but only an ordinary case of a contract being terminated by notice under one of its clauses,· the difference between dismiesal and

Rani Narayan.

Singh

v • Th• Stat• of

Delhi and Othsr3.

Patanja.lS

Satl'i 0. I.

Mar•k la

RAM NARAYAN SINGH

THE srATE OF DELHI AND OTHERS

S. R. DAs

GHULAM HASAN

BHAGWATI JJ.

Criminal Procedure Code, 1898

s. 344

Section 344

Article 32

Jai Gopal Sethi

Veda Vy'.Ls

S. K. K'ip1ir

A. K. Dutt

A. N. Chana

R. Pathnaik

A. N. Sinha

C. K. Daphtary

Porus A. Mehta

PATANJALI SASTRI

Ham Narayan

Singh

S. P.

Mukerjee

N. C. Chatterjee

Pandit Nandlal Sharma

Pandit Guru Dutt Vaid

section 188

Indian Penal Code

Sethi

section 344

Lasb

Riun. Narayan

State of Delhi

Patanjaii Sastri

Patanjali Sastri

Ganpat Rai

G. H. Rajadhyakshri

SATISH CHANDHA ANAND

UNION OF iNDIA

VIVIAN BOSE

GHULA~I HASAN

Constitution of India

Arts. 14, 16, 311

Government of India

Art. 32

Arts. 311, 14 and 16

Art. 311

Rani Narayan

Singh


8.C.R.

SUPREME COURT REPORTS 655

feel called upon to deprive other persons of their persoi; ial liberty in the discharge of what they conceive to be then duty, must strictly and scrupulously observe the forms and rules of the law.

That . has not been done in this case.

The petitioners now before us are therefore entitled to be released and they are set at liberty forthwith. ' Petition allowed.

Agent for the petitioner: Ganpat Rai.

Agent for the respondents: G. H. Rajadhyakshri.

SATISH CHANDHA ANAND

THE UNION OF iNDIA.

(PATANJALI SASTRI 0.J.,'MUKHEHJEA, VIVIAN BOSE,

GHULA~I HASAN and BHAGWATI JJ.]

Constitution of India, 1050, Arts. 14, 16, 311- Civil servant- Appointment on contract for 5 years-Continuation of appointment on temporary service basis-Tarrnination of service on one month's notice-Legality- Fundamental rights-Central Civil Services (Temporary Service) Rules, 1949, r. fi.

The petitioner was employed by the Government of India on . a five year contract in the Resettlement and Employment Directorate of the Ministry of Labour. When bis contract was due to expire the Government made him a n.ew offer to continu~ him n service in his post temporarily for the period of the Resettlement and Employment Organisation on the condition that he will be governed by the Central Ciyil Services (Temporary Service) Rules, 1949, which provided for termination of the contract by one month's notice on either side. He accepted \be offer and continued in service, but subsequently his services were terminated after giving him one month's notice. Thepetitioner applied for reiief under Art. 32 (1) of the Constitution alleging Iba\ his fundamental rights under Arts. 311, 14 and 16 (1) of the Constitution were infringed: Held, (i) that Art. 311 bad no application as this was not a case of dismissal or removal from service nor a reduction in rank but only an ordinary case of a contract being terminated by notice under one of its clauses,· the difference between dismiesal and

Rani Narayan.

Singh

v • Th• Stat• of

Delhi and Othsr3.

Patanja.lS

Satl'i 0. I.

Mar•k la

-656

SUPREME COURT REPOHTS [1953)

1968 removal being that the former ordinarily disqualifies from future employment but not the latter; Batish Chandra

(ii) Art. 14 had no application as he bad not been discrimin- Anand ated against and had not been denied the protection of any laws v, which others similarly situated could claim ; The Union of

(iii) Art. 16 was equally inapplicable as the petitioner was India not denied equal opportunity in a matter relating to appointment or employment but had been treated just like any other person to whom an offer of temporary _employment under these conditions was made.

The State can enter into contracts of temporary employment and impose special terms in each case, provided they are not inconsistent with the Constitution, and those who choose to accept those terms and enter into the contract are bound by them, even as the State is bound.

ORIGINAL JURISDICTION: Petition (No. 201of1952) under Art. 32 of Lhe Oomtitution for the enforcement of fundamental rights.

R. K. Varma and G. 0. Mrithur for the petitioner.

M. 0. Setalvad, Attorney-General for India, (Por1is A. Mehta, with him) for th~ -respondent.

1953. March 13. The Judgment of the Court was delivered by

BosE J.-'l'his is a petition under article 32 of the Constitution in which the petitioner seeks redress for what, according to bim, is a breach of bis fundamental rights under articles 14 aud 16(1) of the Constitution. It was argued at considerable length by the petitioner in person.

Then, wben our judgment was nearly ready, he put in a petition asking for a rehearing aud for permission to file some fresh paper,;.

Wben that was refused be came again on another day and asked for leave to engage an agent and appear through counsel as he felt he bad not been able tO do justice to bis case in person. (It may be mentioned that tbougb he had originally engaged an agent he dismissed him before the bearing when he appeared in person.) vVe granted bis request and counsel roargued the case for him but has not carried the matter any funher. The facts are these .•

In October, 1945, the petitioner was employed by 1968 the Government of India on a five year contract in . - . the Directorate General of Resettlement and Employ..J''h'~ Ohndro men\ of the Ministry of Labour. This was after selec- ::• tiou by the Federal Public Service Commission. The U•ion of After a short period of practical training, he was fodia posted in January, 1946, at Jabalpur as the Manager of the Sub-Regional Employment Exchange and was later confirmed in this appointment.

This contract of service was due to expire in 1950.

Shortly before its expiration the Government of India made him a new offer, embodied in its letter dated the 30th June, l 950, to continue him in service on the expiry of his contract on the terms specified in that

letter. Among them were the following:

"(3) Other conditions of service :-On the termi- . nation of your contract you will be allowed to continue in your post temporarily for the period of the Resettlement and Employment Organisation and will be governed by the Central Civil Services (Temporary Service) .Kules, 1949, nnless you are a permanent Government servant."

He was asked in the letter to intimate to the Ministry of Labour whether he was willing to continue in service on those terms and he admits that he accepted the offer and continued in service. Heiwas not a permanent Government servant though it was contended in argument that he was, for he was Oil a five year contract and tlie work for which he was employed, namely Hesettlement alld Employment, was itself only of a temporary character.

Therefore, the Temporary Service Rules applied.

On those rules, rule 5 is material. It runs as follows:

"5. (a) '.!.'he service of a temporary Government servant who is not in quasi-permanellt service shall be liable to terminatioll at any time by notice ill writing given either by the Government servant to the appointillg authority, or by tbe appointing authority to the Government senant.

Bose J.

(b) The period of such notice shall be one month,

S t . , Ck a unless otherwise agreed to by the Government and a uri an .ra..i.. h t " Ana"d .., y t e Government servan . v.

Quasi-permanent service is defined in the rules and Tk• Union °1 it is clear that the petitioner does not come within India that class. It is also an undisputed fact that there

80,. J. was no agreement between the petitioner and Government regarding the period of the notice. 'rherefore, according to this rule, which was a term in the petitioner's contract of further service, his services were liable to termination at any time by one month's notice in writing. 'rhis notice was given on 25th November, 1950, and he was told that his services would terminate on the expiry of one month from 1st December, 1950.

A large field was cove.red in the course of the arguments, and had the matter not been re-argued we would, for the petitioner's satisfaction, have dealt with the contentions raised more fully than will be necessary now that counsel has appeared.

The petition is under article 32(1) of the Constitution and so it must be shown that a fundamental right has been infringed. It was argued that the rights infringed are the ones conferred by articles l 4 and 16(1).

Taking a:rticle 14 first, it must be shown that the petitioner has been discriminated against in. the exercise or enjoyment of some legal right which is open to others who are similarly situated.

The rights which he says have been infringed are those confered by article 311. He says he has either been dismissed or removed from service without the safeguards which that article confers. In our opinion, article 311 has no application because this is neither a dismissal .nor a removal from service, nor is it a reduction in rank. It is au ordinary case of a contract being terminated by notice under one of its clauses.

The services in lndi~ have long been afforded certa.in statutory guarantees and safeguards against arbitrary dismissal or reduction in rank.

Under

S.C.R SUPREME COURT REPOR'l'S 659

section 240 of the Government of India Act, 1935, the 1958 safeguards were limited to those two cases .. Under 8 . k-O d th C . . h' d dd d l atu kan ra e preseut onst1tut10n, a t tr was a e , name y Anand removal from service. In order to understand the v, difference between "dismissal" and "removal" from Th• Union of service, it will be necessary to turn to the Rules which fodia governed, and with modifications still govern, the "services" in India. because of article 313 of the Constitution.

Part XII of the Civil Services (Classification, Control and Appeal) Rules relating to Conduct and Discipline includes rule 49 which sets out the various penalties to which a member of the services can be subjected for indiscipline and misconduct.

They are seven in number and include censure, suspension, reduction in rank, removal from service and dismissal from service. The Act of 1935 selected only two of these possible penalties as serious enough to merit statutory safeguards, namely reduction in rank and dismissal from service.

The Constitution has added a third to the list.

The distinction which is drawn between the two is explained in rule 49.

There is first removal from service "which does not disqualify from futu.re employment" and there is next dismissal from service "which ordinarily disqualifies from future employment."

Then follows an Explanation: "The discharge-

(c) of a person engaged under contract, in ac- cordance with the t, erms of his contract, does not amount to removal or dismissal within the meaning of this rule."

These terms are used in the same sense in article311.

It follows that the article has no application here and so no question of discrimination arises, for the "law" whose protection the petitioner seeks has no application to him.

There was no compulsion on the petitioner to enter into the contract he did.

He was as free under the law as any other person to accept or to reject the

Bose J.

z9; s offer which was made to him.

Havig a, ccepted, he

S t . h-Ch a still has open to him all the rights and remedies

a" Anann '"available to other persons similarly situated to env. force any rights under bis coritract which have been Th• Union of denied to him, assuming tbere are any, and to pursue

I.idi• in tbe .ordinary courts of the land such remedies for a breach as are open to him to exactly the same extent Bose J. as other persons similarly situated.

He has not been discriminated against and he has not been denied the protection of any laws which others similarly situated could claim. 'I'he remedy of a writ is misconceived.

Article 16(1) is equally inapplicable.

The whole matter rests in contract. 'When the petitioner's first contract (tbe five year one) came to an end, he was

not a permanent Government servant and Government was not bound either to re-employ him or to continue him in service.

On the other hand, it was open to Government to make him the offer it did of a continuation of l)is employment on a temporary and contractual basis. Though the employment was continued, it was iu point of fact, and in the eyes of the law, under a new and fresh contract which was quite separate and distinct from the old eveu though many . of its terms were the same.

Article 16(1) deals with equality of opportunity in all matters relatiug to employment or appointment to any office under the State. '1 1he petitioner has not been denied any opportunity of employment or of appointment. He has been treated just like any other person to whom au offer of temporary employment under these conditions was made. His grievance, when flnalysed, is nob one of personal differentiation but is against an offer of temporary employment; ou special terms as opposed to permanent employment. But of comse the State can enter into contracts of temporary employment and impose special terms in each case, provided they are not inconsistent with the Constitution, and those who choose to accept those terms and enter into the contract are bound by them, even as the State is bound.

When the employment is permanent there are certain statutory guarantees but in the absence of

any such limitations Government is, subject to the 1958 qualification mentioned above, as free to make special 8 . h-C d . . atis han ra contracts of service with temporary employees, engag- Anand ed in works of a temporary nature, as any other v. employer.

The Union of Various matters .relating to the meritsof the case India. were referred to but we express no opinion about Bo" J. whether the petitioner has other rights which he can enforce in other ways.

We are dealing here with a writ under article 32 to enforce a fundamental right and the only point we decide is that no fundamental right bas been infringed.

When the matter was first argued we had decided not to make any order about costs but now that the petitioner has persisted in reopening the case and calling the learned Attorney-General here for a second time, we have no alternative but to dismiss the petition with costs.

Petition dismissed.

Agent for the petitioner: Rajinder Narain.

Agent for the respondent: G. H. Rajadhyaksha .

HABF,.EB MOHAMED

v. • rHE STA'rE OF HYDERABAD.

[PATAl\JALI SAS1'RI C.J., MUKHERJEA, S.R. DAS,

Gm; LAM HASAN and BHAGWATI JJ.] Constitution of India, 1950, Arts. 13, 14-Hyderabad Regula tion X of 1359 F.-Trial by special jwlqe under Reg•tlation X after

26th January, 1950-Provisions of Regulation different from Criminal Procedure Code-Equal protection of the law - Validity of trial-Tests of validity-Effect of cu.rtailment of committal proceed ings and of right to transfer, revision, confinnation of death sentence.

In determining the validity or otherwise of a pre.Constitution statute on the ground of any of its provisions being repugnant to the equal protection clause of the Constitution, two principles

March 30.

Ganpat Rai

G. H. Rajadhyakshri

SATISH CHANDHA ANAND

THE UNION OF iNDIA

PATANJALI SASTRI

VIVIAN BOSE

GHULA~I HASAN

BHAGWATI JJ.

Constitution of India

Arts. 14, 16, 311

Art. 32

Arts. 311, 14 and 16

Art. 311

Singh

Batish Chandra

I.

Mar•k la
656

SUPREME COURT REPOHTS [1953)

1968 removal being that the former ordinarily disqualifies from future employment but not the latter; Batish Chandra

(ii) Art.

Art. 14

Art. 16

Art. 32

R. K. Varma

Setalvad

A. Mehta

article 32

articles 14

Federal Public Service Commission

Jabalpur

Government of India

30th June, l 950

Ministry of Labour

Bose

India

25th November, 1950

1st December, 1950

article 32(1)

article 311

article 311

S 659

section 240

Government of India Act, 1935

article 313

Article 16(1)

Article 16(1)

article 32

Rajinder Narain

G. H. Rajadhyaksha

HABF,.EB MOHAMED

PATAl\JALI SAS1'RI

MUKHERJEA

S.R. DAS

LAM HASAN

Constitution of India

Arts. 13, 14


S.C.R.

SUPREME COURT REPORTS 661

any such limitations Government is, subject to the 1958 qualification mentioned above, as free to make special 8 . h-C d . . atis han ra contracts of service with temporary employees, engag- Anand ed in works of a temporary nature, as any other v. employer.

The Union of Various matters .relating to the meritsof the case India. were referred to but we express no opinion about Bo" J. whether the petitioner has other rights which he can enforce in other ways.

We are dealing here with a writ under article 32 to enforce a fundamental right and the only point we decide is that no fundamental right bas been infringed.

When the matter was first argued we had decided not to make any order about costs but now that the petitioner has persisted in reopening the case and calling the learned Attorney-General here for a second time, we have no alternative but to dismiss the petition with costs.

Petition dismissed.

Agent for the petitioner: Rajinder Narain.

Agent for the respondent: G. H. Rajadhyaksha .

HABF,.EB MOHAMED

v. • rHE STA'rE OF HYDERABAD.

[PATAl\JALI SAS1'RI C.J., MUKHERJEA, S.R. DAS,

Gm; LAM HASAN and BHAGWATI JJ.] Constitution of India, 1950, Arts. 13, 14-Hyderabad Regula tion X of 1359 F.-Trial by special jwlqe under Reg•tlation X after

26th January, 1950-Provisions of Regulation different from Criminal Procedure Code-Equal protection of the law - Validity of trial-Tests of validity-Effect of cu.rtailment of committal proceed ings and of right to transfer, revision, confinnation of death sentence.

In determining the validity or otherwise of a pre.Constitution statute on the ground of any of its provisions being repugnant to the equal protection clause of the Constitution, two principles

March 30.

HabMb Mohamed

The State of

Hyderabad.

66'2 SUPREME COCR'l' REPOR'l'S [1953]

have to be borne in mind. Firstly, the clause bas no retrospective

effect and even if the law is in any sense discriminatory, it must be held to be valid for all past transactions and for enforcement of rights and liabilities accrued before the coming into force of tho Constitution. Secondly, Art. 13 (l) of the Constitution doeg not necessarily make the whole statut~ innlid even after the advent of the Constitution. It invalidates only those provisions which are inconsistent with the fundamental rights guaranteed under Part III of the Constitution . • Further, the fact that trial was continued even after 26th January, 1950, under the earlier Regulation which is in some res. pacts discriminatory would not necessarily render the subsequent proceedings invalid. All that the accused could claim is that what remains of the trial must not duviate from the normal standard in material respects, so as to amount to a denial of the equal pro tection of laws within the meaning of Art. 14 of the Constitution.

For the purpose of determining whether the accused was deprived of such protection, the Court has to see first of all whether after eliminating the discriminatory provisions in the Regulation, it was still possible to secure to the accused substantially the benefits of a trial under the ordinary law.; and if so, whether that was actually done in the particular case.

On the 5th January, 1950, he case of the accused who was charge.cl with murder, arson, ricting and other offences which was pending before a Special Tribunal was made over to a Special .Tudge in pursuance of the provieions of the Hyderabad Regulation X of 1359 F., which abolished t.1e Special Tribunal Regulation o_f

1949. The trial commenced on the 11th February, 1950, after the ne\V Constitution came into force and the accused was convicted and sentenced to death. His appeal was dismissed and the sentence of death was ultimately atmfirmed by the High Court. It was contended that the entire trial was il)Jlgal inasmuch as the Regulation under which the accused, was tried contained several provisions which were in coafiict with the equal -protection clause (Art. 14) of the Constitution and became void after the 26th January, 1950.

Held, (1) The provisions in the Regulation eliminating committal proceedings and substituting the warrant procedure for sessions procedure in the trial of offences did not render the trial illegal as the committal proceeding was r:ot an indispensable preliminary to a sessions trial under the Hyderabad Criminal Procedure Code.

(2) On a proper interpretation of s. 8 of the Regulation the right of an accused to apply fer transfer of his case was not taken away and the right of revision was taken away only in respect of non-appealable sentences.

(3) Section 8 of the Regulation was void in so far as it took away the provisions relating to confirmation of sentences but as this part of the Regulation was sevora\>le from the remainin~

s.c.:R. , ur . ~ME COURT REPORTS 663

portion of the section tbe provisions of the Hyderabad Criminal Procedure Code relating to confirmation of sentences could be followed, and those provisions did not in any way affect the procedure for trial laid down in the Regulation.

(4) The fact that the Nizam's consent had not been obtained could not vitiate the trial as such consent is necessary only before execution of the sentence.

Held also, that the delegation of the authority of the Chief Minister to make over cases for trial to the Special .Tudge, by a general notifipation authorising all civil administrators of tbe districts to exerci•e within their respective jurisdictions the powers of the Chief Minister under s. 5 (b) was not invalid.

Section 5 (b) does not require that the delegatee must be mentioned by name.

Qasini Razvi' s case ([1953] S.C.R. 589) applied.

CRIMINAL APPELLATE

JURISDICTION: Criminal Appeal No. 43 of 1952 and Petition No. 178 of 1952.

Appeal by Special Leave granted by the Supreme Court on the 11th May, 1951, from the Judgment and Order dated the l lth December, 1950, of the High Court of Judicature at Hyderabad (Manohar Prasad J.) In Criminal Appeal No. 598 of 1950, and Petition nnder Article 02 of the Constitution.

A. A. Peerbhoy (J. B. Dadachanji, with him) for the appellant.

V. Rajaram Iyer, Advocate-General of Hyderabad (R. Ganapathy Iyer;, with him) for the respondent.

1953.

March 30. The Judgment of PATANJALI 8ASTRI C.J., MuKHERJEA, S. R. DAs, and BHAGWATI , JJ. was delivered by MuKHERJEA J. Gm::LAM HASAN J. delivered a separate but concurring judgment.

MuKHEHJEA J.-'rhe appellant before us, who in the year 1947 was a Revenue Officer in the District of vVarangal within the State of Hyderabad, was brought to trial before the Special Judge of Warangal appointed under Regulation X of 1359F. on charges of murdar, attempt to murder, arson, rioting and other offenceb"-punishable under various sections of the Hyderabad Penal Code.

The offences were alleged to have been committed on or about the 9th of December, 1947, and the First Information Hepor~

Habeeb Mohatned

The State of Hyderabad.

was lodged, a c.onsiderable time afterwards, on 31st January, 1949. 0µ 28th August, 1949, the, re was an Habeeb Mohamed order in terms of section 3 of the Special Tribunal

The State of

Hyderabad.

Regulation No. V of 1358 F., which was in force at that time, directing the appellant to be tried by the Special Tribunal (A). The accused being a public officer, the sanction of the Military Goverupr was M1<kherj•a J. necessary to prosecute him and this sanction was given on 20th September, 1949. On 13th. December, 1949, a new .Regulation, being Regulation No. X of 1359F., was passed by the Hyderabad Government which euded the Special Tribunals created under the previous Regulation on ana. from 16th December, 1949; and consequently upon such termination provided for the appointment, power and procedure of Special Judges. f:lecticin 4 of the Regulation authorised the Chief Minister to appoint, after consulting the High Court, as many Special Judges as may from time to time be required for the purpose of section 5.

Section 5(1) laid down that every Special Judge shall ' try- ( a) such offences of which the trial was immediately before the 16th December, 1949, pending before a Special Tribunal deemed to have been dissolved on that date, and are made over to him for trial by . the Chief Minister or by a person authorised by the .• Chief Minister in this behalf; and

(b) such offences a.s are after the commencement of this Regulation made over to him for trial by the Chief Minister or by a person authorised by the Chief Minister in this behalf.

On 5th January, 1950, the case against the appellant was made over to Dr. Ijakshman Rao, a Special Judge of Warangal, who was appointed under the above Regulation under an order of the Civil Administrator, Warangal, io whom authority under section 5 of the Regulation was delegated by the Chief Minister and on the same date the Special Judge took cognizance of the offences. The trial commenced on and from 11th February, 19501 and altogether 21 witnesses were examined for th~ prosecution and one for

1953 the defence. 'l'he Special Judge, by his judgment dated the 8th of May, 1950, convicted the appellant HabetJb of all the offences with which he was charged and Mohamed sentenced him to death under section 243 of the v.

Hyderabad Penal Code (corresponding to section -302 The state of of the Indian Penal Code) 'and to various terms of Hyderabad. imprisonment under sections 248, 368, 282 and 124of the Code of Hyderabad (which correspond respec- Mukherjea J. tively to sections 307, 436, 342 and 14§ of the Indian

Code).

Against this judgment the appellant took an appeal to the High Court of Hyderabad and the appeal was first heard . by a Division Bench consisting of Shripat Rao and S. Ali Khan JJ. On 29th September, 1950, the learned Judges delivered differing judgments, Shripat Rao J. taking the view that the appeal should be dismissed, while the other learned Judge expressed the opinion that the appeal ought to be allowed and the accused acquitted. '.l'he case was then referred to Mr. Justice Manohar Prasad as a third Judge and by his judgment dated the nth of December, 1950, the learned Judge agreed with the opinion of Shripat Rao J. and dismissed the appeal upholdingtheconviction and sentences passed by the Special Judge.

The appellant then presented an application for leave to appeal to this court. That application was rejected by the High Court of Hyderabad, but special leave to appeal was granted by this court on 11th May, 1951, and it is on the strength of this special leave that the appeal has come before us.

The present hearing of the appeal is confined to certain constitutional points which have been raised by the appellant attacking the .legality of the entire trial which resulted in his conviction on the ground

that the procedure for trial laid down in Regulation X of 1359F. became void after the 26th of Janua~, 1950, by reason of its being in conflict with the equal protection clause embodied in article 14 of the Constitution. 'l'hese grounds have been set forth in a separate petition filed by tbe appellant under article 32 of the Constitution and following tbe procedure adopted in the case of Qasim Razvi [Case No. 276

of 1951(1)], we decided to hear arguments on tl; ie constitutional questions as preliminary points in the Habeeb Mohamed appeal itself. Whether the appeal would have to be

heard further or not would depend on the decision Th• st, te of whh1h we arrive at in the present hearing. . .

'Hyderabad.

The substantial contention put forward by .Mr.

Mukherjea J. Peerbhoy, who appeared in support of the appeal, is

that as the procedure for trial prescribed by Regulation X of 1359F. deviated to a considerable extent from the normal procedure laid down by the general law and deprived the accused of substantial benefits to which otherwise he would have been entitled, the Regulation became void under article 13(1) of the Constitution on and frnm the 26th of January, 1950.

The conviction and the sentences resulting from the procedure thus adopted must, therefore, be held illegal and inoperative and the judgment of the Special Judge as well as of the High Court shcrnld be quashed. 'rhe other point raised by the learned counsel is t'hat the making over of the case of the appellant to the Special Judge was illegal as the authority. to make over such cases was not properly delegated by the Chief Minister to the Ci vii Administrator in the manner contemphted by section 5 of the Regulation.

As regards the first point, it is to be noted at the out- . set that the impugned Hegulation was a pre-Constitu'

tion statute. In determimng the validity or otherwise of such legislation on the ground of any of its provisions being repugnant to the equal protection clause, two principles would have to be borne in mind, which were enunciated by the majority of this court in the case of Qasim Razvi v. The State of Hyderabad('), decided on tbe 19th of J auuary, 1953, where the earlier decision in• Lackman Das Kewalram v. The State of Bombay(") was discussed and explained.

Firstly, the Constitution has no retrospective effect and even if the law is in any sense discriminatory, it must be held to be valid for all past tr:msactions and for enforcement of rights and liabilities accrued before the

(1) [1953] S.C.R. 589.

(2) [1952) S.C.R. 710,

coming into force of the Constitution.

Secondly, article 13(1) of the Constitution does not necessarily make the whole stat11te invlid even after the advent of the Constitution.

It invalidates only those provisions which are incousi; teut with the fundamental rig)lts guaranteed under Part III of the Constitution.

The statUte becomes void only to the extent of such incousisteµcy but otherwise rem::tius valid and operative.

As was said in Qasiin Razvi's case(') the fact that "trial was continued even after 26th January, 1950, under the same Regulation would not necessarily render the subsequent proceedings invalid. All that the accused could claim is that what remained of the trial must not deviate from the normal standard iu material respects, so as to amount to a denial of the equal protection of laws within the meaning of article 14 of the Constitution. For the purpose of determining whether the accused was deprived of such protection, we have to see first of all whether after eliminating the discriminatory provisions in the Regulation, it was still possible to secure to the accused substantially the benefits of a trial under the ordinary law; and if so, whether that was actually • done in the particular case." As has been stated already, the Special udge took . , cognizance of this case on the 5th of January, 1.950,

which was prior to the advent of the Constitution. It. must be held, therefore, that the Special Judge was lawfully seized of the case, and it is not possible to say that the appointment of a Special Judge was in itself au inequality in the eye of the law.

The ti'ial undoubtedly commenced from the 11th of February, 1950, that is to say, subsequent to the coming iuto force of the Constitution, and the question that requires consideration is, whether the procedure that was actually followed by the Special Judge acting nuder the impugned Regulation did give the accused the substance of a normal trifl.l, or, in other words, whether he had been given a fair measure of equality in the matter of procedure? .

(1) [1953] S.C.R. 589,

HttbBeb Mohamed v.

The State of

Hyddrabad.

Muk1rn1', fea J,

Rabeeb .Afohatned

The State of Hyderabad.

Mukherjea J,

Mr. Peerbhoy lays stress on two sets of provisions in the impugned Regulation which, according to him, differentiate the procedure prescribed in it from that laid down nuder the ordinary law.

The first set relates to the elimination of the committal proceeding and the substitution of warrant procedure for the sessions procedure in the trial of offences. The otlier set of provisions conists of those which deny to the accused the rights of revision and transfer and withdraw from him the safeguards relating to c.onfirmation of sentences. The first branch of the contention, in our opinion, is unsustainable having regard to our decision in Qasim Razvi's case('). It was pointed out in that case that under the Hyderabad Criminal Procedme Code the committal proceeding is not au indispensable preliminary to a sessions trial.

Under section 267 A of the Hyderabad Criminal Procedure Code, the Magistrate is quite competent, either without rec-0rding any evidence or after recording only a portion of the evidence, to commit an accused for trial by the sessions court if, in his opinion, there are sufficient grounds for such committal.

If the committal proceeding is left out of account as not being compulsory, and.its absence did not; operate to ' take away the jurisdiction of the Special Judge to take cognizance of the case before the Constitution, .the difference between a warrant procedure prescribed '

by the impugned Regulation to be followed by the Special Judge, after such cogni1:ance was taken and the sessions procedure at that stage applicable under the\ general law is not at all substantial, and the minor differences would not bring the case within the mischief of article 14 of the Constitution. 'rhis question having been already decided in Qasim Razvi's case(') it is not open for further arguments in the present one.

With rega_rd to the other set of provisions, the contention of Mr. P.eerbhoy is based entirely upon the language. of section 8 of the Regulation.

In our opinion, the interpretation which the learned counsel seeks to put upon the sec; ition is not quite correc1r,

(1) (1953] S.C.R. 589.

...

and it seems to ns that not only the right of an accused to apply for transfer of his case 'has not been taken away by this section, but the right of revision also has been left unaffected except to a small extent.

Section 8 of the Regulation X of 1359 F. is in these terms:-

"All the provisions of section 7 of the said Regulation shall havQ effect in relation to sentences p:i, sse'd by a Special Judge as if every reference in the said Regulation to a Special Tribunal incluueda reference to a Special Judge."

The expression "said Regulation" means and refers to Regulation V of 1358 F. and section 7 of the said Regulation provides inter alia that "there shall save as hereinbefore provided, be no appeal from any order or sentence passed by a Special Tribunal, and no court shall have authority to revise , such order or sentence or to transfer any case from Special Tribunal or have any jurisdiction of auy kind iu respect of any proceeding before a Special Tribunal and no sentence of a Special Tribunal shall be subject to or submitted for confirmation by any authority whatsoever." It will be noticed that what section 8 of the impugned Regulation does, is to incorporate, not the whole of section 7 of the previous Regulation, but only such portion of it as relates to sentences passed by a Special Judge. By

"sentence" is meant obviously the final or definitive pronouncement of the criminal court which culminates or ends in a sentence as opposed to an "order", interlocutory or otherwise, where no question of infliction of any sentence is involved. The scope of section 7 of the earlier Regulation is thus much wider than that of present section 8 and all the limitations of the earlier statute. have not been repeated in the present one.

The result, therefore, is that revision against any order which has not ended in a sentence is not interdicted by the present Regulation, nor has the right of applying for transfer, which has no reference to a sentence, been touched at all.

These rights are expressly preserved by section 10 of the present

Habeb Mohamed

Th• Stat• of

Hyderabad.

Mukherjea J.

Habeeb Mohatned

Tho StatP of

Hydorabad.

Afukhorjoa J.

Regulation, which .makes the Code of Criminal Procedure applicable iu all matiers except where the Regulation has provided otherwise. Heading section 8 of the present Regulation with section 7 of the earlier one, it may be held that what has been taken away from an accused is, in bhe first place, the right of revision against nou-appealable sentences, aud in the sscond place, the provisions relating to confirmation of.sentences. The first one is immaterial for our present purpose, as no question of any non-appealable sentence arises in the case before us. '1 1he second is undoubtedly a discriminatory feature and naturally Mr. Peerbhoy has laid considerable stress upon it.

Section 20 of the Hyderabad Criminal Procedure Code lays down the rule relating to confirmation of sentences in the following manner: Eve1y Sessions J 11dge may pass any sentence authorised by law, but such sentence shall not be carried into effect until ·

(1) in the case of a sentence of 10 years' imprioonment or more, the appropriate Bench of the High

Conrt; .

(2) in the case of life imprisonment, the Government; and

(3) in the case of death sentence, H.E.H. the Nizam, shall have assented thereto.

Section 302 provides that when a sessions court has passed a sentence of death or of life imprisonment or of imprisonment exceeding 10 years, the file of the case shall be forwarded to the High Court and the execution of the sentence stayed until manjuri is given in accordance with section 20.

Section 307 further provides that when tbe High Court has affirmed a death sentence or sentence of life imprisonment, then its opinion together with the file of the case shall he forwarded for ratification to the Government within one week and the sentence shall not be carried into effect until alter the assent thereon of H.E.H. the Nizam in the case of death sentences and of .the Government in the case of

8.0.R.

SUPREME COUR'r REPORTS 671

!968 sentences of life .imprisonment. Mr. Peerbhoy's complaint is that the sentence imposed upon his client h h Baboeb as, m t e present case, neither been confirmed by Manam•d the High Court, nor by H. E. H. the N izam.

This, he v. says, is a discrimination which has vito.lly prejudiced Th• State of his client and does afford a ground for setting aside Hyderabad. the sentence in its entirety.

Mukhtrjda, J.

It admits of no dispute that section 8 of Regulation X of 1359F. must be held to be invalid under articles 13(1) and 14 of the Constitution to the extent that it takes away the provision relating to confirmation of sentences as is contained in tbe Hyderabad Criminal Procedure Code. 'l.'hig, however, is a severable part of the section and being invalid, the provisions of the Hyderabad Crim;- nal l:'rocednre Code with regrd to the confirmation of sentences must be followed.

Those provisions, however, do not affect in any way tbe procedure for trial laid down in tbe Regulation. All that section 20 of the Hyderabad Criminal Procedure Code lays down is that sentences of particular description should not be executed unless :Hscnt of certrtin authorities to tbe same is obtained. The proper stage, therefore, when tbis section comes into operation is the stage of the execution of tbe sentence. Tbe trial or conl'iction of the accused is not affected in any way by reason of the withdrawal of the provision relating to confirmation of sentences in the Regulation. The withdrawal is certainly inoperative and in spite of such withdrawal the accused can insist on the rights provided fol' under the general law.

In the case before us the records show tbat no reference was made by tbe Special Judge after be , passed the sentence of death upon the appellant in the manner contemplated by section 307 of the Hyderabad Code, which corresponds to section 374 of the Indian Criminal Procedure Code.

There was, however, an appeal preferred by the accused and the entire file of the case came up before the High Courb in that connection.

As said already, the Division Bench, which heard the appeal, >ms divided in its

672 SUPREME COURT REPOR'fS [1953]

opinion and consequently no question of confirmation of the death sentence could or did arise before that Hab .. b Mohamed Bench.

The question was, however, specifically

The Stale of

Hyderabad.

raised towards the conclusion of the arguments before the third Judge: to whom it was referred; and it is significant to note that some time before that a Full Bench of the Hyderabad High Court had decided that Mukherjea J.

R 1 1 fi the provision in the egu ation re ating to con rmation of sentences was void and inoperative and consequently in spite of the said provision the sentences were required to be confirmed in accordance with the general law. The question was then raised whether the confirmation was to be made by the third Judge alone or it had to be done by the two Judges who agre@d in dismissing the appeal. Mr. Justice Manohar Prasad decided that as the whole case was referred to him, he alone was competent to make the order for confirmation of the death sentence and be did actually confirm it by writing out in his own hand the order passing the sentence of death according to the provision laid down in the Hyderabad Code. Mr. Peerbhoy contends that this confirmation was illegal and altogether invalid as not being made in conformity with the provisions of the Hyderabad Code. We do not want to express any opinion on this point at the present moment. 'l'bere appears on the face of the record an order for confirmation of the death sentence made by a Judge of the High Court.

If this order is not in conformity with the provisions of law, the question may be raised before this court when the appeal comes up for hearing on its mer}ts.

This is, however, not a matter which affects the con- . stitutional question with which only we are concerned at the present stage.

Under section 20 of the Hyderabad Code, as mentioned above, a death sentence could not be executed unless the assent of H.E.H. the Nizam was obtained.

Mr. Peerbhoy points out that this has not been done iu the present case. 'l'o that the obvious reply is that consent of H.E.H. the Nizam is necessary only before the sentence is executed, and that stage apparently

S.d.R. SUPREME COURT HEPORTS 67·3

has not a"rrived as yet.

The final judgment of the High Court in this case was passed on 11th December, 1950. There was an application for leave to appeal presented by the accused immediately after that date aud this application was rejected on 2nd January, 1951.

On the 5th of February, 1951, an application for special leave was made to this court and the execution of the death sentence was stayed during this period under orders of the High Court itself. The special leave was granted by this court on 11th May, 1951, and the carrying out of the death sentence has been stayed since then under our orders, pending the disposal of the appeal. The question as to whether any further confirmation by H.E.H. the Nizam is necessary could only arise if and when the death sentence passed by the courts below is upheld by this court. Mr. Peerbhoy points out that since the 1st April, 1951, the Indian Criminal Procedure Code

has been introduced in the State of Hyderabad and there is no power in the Nizam now to confirm a sentence of death, although such confirmation was necessary at the time when the sentence was pronounced both by the Special Judge as well as by the High

Court on appeal. We do not think that. it is at all necessary for us at the present stage to discuss the effect bf this change of law. If the assent of the Nizam to the execution of a death sentence is a matter of procedure, it may be argued that the procedural law which obtains at the present moment is the proper law to be applied.

On the other hand, if it was a question of snbstanCive right, it may be open to contention that the law which governed the pa.rties at the date when the trial began is still applicable. We arc, however, not called upon to express any opinion on this point and we deliberately decline to do so. vVe also do not express any opinion as to whether the rights which conld be exercised by the Nizam under section 20 of the Hyderabad Criminal

Procedure Code were appurtenant to his prerogative as a sovereign or were statutory rights exercisable by the perwn de>ignf>ted in the statute. These matters

Habeeb Mohamed

The State a/ Hyderabad.

Mukherjea J

Haboob llfohamuxl

Tho State of

Hyderabad,

Mukherjea J,

&74

SUPREME COURT REPOR1'8 [l953j

may be considered when the appeal comes up for final hearing on the merits. Our conclusion is that there has not been any discrimination in matters of procedure in this case which can be said to have affected the trial prejudicially against the accused and the accused is not entitled to have hi,; conviction and sentence set aside on that ground.

The other question raised by the appellant relates to delegation of the authority by the Chief Minister to make over cases for trial by the Special Judge.

Mr. Peerbhoy lays stress on section 5 (b) of the Hegulation which speaks of offences being "made over to the Special Judge for trial by the Chief Minister or by a person authorised by the Chief Minister iu this behalf ", and it is argued that this section requires that the delegatee is to be mentioned by name. What the Chief Minister has done is that he issued a notification authorising all ciYil administrators of the districts to exercise within their respective jurisdictions the powers of tbe Chief Minister under the said section.

This, it is argued, is not in compliance with the provisions of tbe section. v\'e do not think there is any substance in this contention.

The delegatee can certainly be described by reference to his official designation and the authority piay be vested in the holder of a particular office for the .time being. This,' we think, is quite a proper and convenient way of delegating the powers which are exercisable by the Chief Minister. In our opinion, the constitutional points raised by :\fr. Peerbhoy fail.

The application under article 32 of the Constitution is thus rejected and the case is directed to be posted in the usual course for being heard on its merits.

GHULAivI HASAN J. - I concur in the order proposed by my learned brother Mr. Justice M ukherjea that the petition under article 32 of the Constitution be dismissed, but I deem it necessary to make a few oberv ations in view of my dissentiug judgment in Qasim Razvi's case(').

The majority judgment delivered by Mr. Justice Mukherjea on the 19th January, 195.3, in

(I) [1951] S, C.R. 7ro.

Qasim Razvi's case(') while interpreting the decision in Lachmandas Kewalram Ahiija v. The State of Bombay(') laid down the principle that the mere fact that son:l.e of the provisions of the impugned Regulation are discriminatory on the face of it, is not sufficient to render the trial and the conviction void under article 14, read with article 13 ( l) of the Constitution and that in such ca, es where the trial is continued after the 26th January, 1950, under the impugned Regulation, it ib necesary to see whether the procedure followed after the material date wa.s such as deprived the accused of the equal protection of laws within the meaning of article 14 of the Constitution and that if the accused under such procedure received substantially the benefits of the trial nuder the ordinary law, the trial and conviction cannot be held as void and illegal.

I take it that the majority decision is binding and that the principle enunciated by the majority is no longer open to question.

With this preliminary observation I must proceed to express my concurrence generally with the view taken by my learned brother Mr. Justice Mukherjea in the present case.

It is to be borne in mind that Regulation V of 1358 F. under which the 1 1ribunal was constituted to try Qasim Razvi's case was iu material respects different from Hegulation X of 1359 F. under which the Special Judge tried the petitioner Habeeb Mohammad. r agree with my learned brother in holding that there was no flaw in making over the case of the petitioner for trial to the 8pecial Judge under section 5 (h) of the Hegulation. The Special Judge took cognizance of the case before the ConstitLition came into force, but the entire evidence of the prosecution, unlike Qasim Ra%vi's case, was recorded after the 26th of January, 1950.

The Regulation in lJUestion was challenged before us as being void under article 14 read with article 13(1) of the Constitution on the following grounds:-

(Ii [1953] S.C.R. 58,_

(2) [1953] S, C, R, 589,

19ft8

Habeb Mohamed v.

The State of

Hyd., abad.

Ghulam Hasan J.

Habeeb }rfoha1ned

The Stats of Hyderabad.

Ghulani Hasan J.

C76

SUPREME COUR1' REPORTS [1953]

(1) that the Regulation excludes the committal proceedings,

('J) that the procedure of the sessions trial is replaced by the warrant procedure, ·

(3) that there is no right of transfer, ( 4) that there is no revision,

(5) that the right of confirmation by the Nizam in case of sentences of death has been negatived.

As regards the first two grounds, Mr. Justice Mukherjea, following the view taken in Qasim Razvi's case(') has held that under section '267 A of the Hydernbad Criminal Procedure Code committal proceedings are not compulsory and that there is no substantial difference between the sessions trial and the warrant procedure which was followed in the petitioner's case. These two grounds of attack therefore disappear. So far agrounds Nos. (3) and (4) are concerned, I agree with Mr. Justice M ukherjea in his interpretation of section 8 of the Regulation and hold in concurrence with the view taken by him that the right to apply for transfer has not been taken away and that the right of revision has been denied only in so far as non-appealable sentences are concerned. 'rhe present is a case of murder and other serious offences which are undoubtedly all appealable.

'!'he only discriminatory feature of the Regulation left therefore is that no sentence of a Special Tribunal shall be subject to or submitted for confirmation by any authority whatsoever contained in section 7

(2) of Regulation V of 1358F. which is made applicable under section 8 of Regulation X of 1359 F., in other words, that the right of the Nizam to confirm the death sentence h:.s been taken away.

This is unquestionably a Yaluable right available to the accused who is sentenced to death by the Sessions Judge or the High Court as the case may be. vVe were told by Mr. Peerbhoy, counsel for the petitioner, that no death sentence passed by the courts in Hyderabad during the last 50 years or sd has ever been carried into effect and that the Kizam has s, lways exercised

(I) [1953] S.C.R, 589.

S.C.R.

SUPREME COURT REPOR'I'S 677

this right iu favour of commuting the death sentence to a sentence for life. The denial of this right in the Hegulatiou is discriminatory ou the face of it aud deprives the petitioner of a valuable right. I concede, however, that this objectionable feature of the Regulation is severable from the other parts. I further agree that the stage for the exercise of that right has uot yet arisen, for the appeal of the petitioner is still pending iu this court. If the appea, J is allowed, or the sentence is reduced, uo question of the confirmation of the death sentence by the Nizam will arise.

If, however, the appeal is dismissed, it will be open to the petitioner to claim this right. It would not be desirable at this stage to express au opinion whether this right is a substantive right which vests iu the petitioner or oue relating to a mere matter of procedure, as that question will have to be considered aud decided when the appropriate stage arrives.

I wou Id, therefore, agree iu dismissing the petition.

Petition dismissed.

Ageut for the petitioner: Rajinder Narain.

Agent for the respondent: G. H. Rajadhyaksha.

POPPATLAL SHAH

v. 1'HE scrATE OF MADRAS.

UNIO~ OF INDIA AND OTHERS-Iuterveuers. [PATANJALT SAsrnr O.J., MuKHERJEA, VrvrAN BosE,

GHULAM HASAN aud BHAGWATI JJ.J

Maclras Sales Tax Act (IX of 1939), ss. 2, 3 (before amendment of 1947)-" Sale within the vrovince", meaning of-Levy of tax on sales where vroverty in the goods vassed outside the vrovince -Legal ity-Provincial Legislature-Territorial jurisdiction.

Under the Madras Sales Tax Act, 1939, as it stood before it was amended by the '.\fadras Act XXV of 1947, the mere fact that the contrnct of sale was entered into within \he frovjnce of

Habe6b Mohamed

v, Th• Stats of Hyderabad.

Ghulam Ha1an J.

March 80.

India

article 32

Rajinder Narain

G. H. Rajadhyaksha

rHE STA'rE OF HYDERABAD

MUKHERJEA

S.R. DAS

LAM HASAN

BHAGWATI JJ.

Constitution of India

Arts. 13, 14

HabMb Mohamed

State of

Hyderabad

SUPREME COCR'l' REPOR'l'S [1953]

Art. 13

26th January, 1950

Art. 14

5th January, 1950

Special Tribunal Regulation

11th February, 1950

Art. 14

s. 8

Section 8

s. 5

Section 5

Qasini Razvi

Qasini Razvi' s case ([1953] S.C.R. 589) applied.

Manohar Prasad

Article 02

A. A. Peerbhoy

B. Dadachanji

V. Rajaram Iyer

Hyderabad

R. Ganapathy Iyer

PATANJALI 8ASTRI

MuKHERJEA

S. R. DAs

Gm::LAM HASAN

MuKHEHJEA

Special Judge of Warangal

Penal Code

9th of December, 1947

Habeeb Mohamed

section 3

20th September, 1949

13th. December, 1949

Hyderabad Government

16th December, 1949

section 5

Section 5(1)

Ijakshman Rao

Warangal

section 5

11th February, 19501

8th of May, 1950

HabetJb

Mohamed

section 243

Hyderabad Penal Code

Indian Penal Code

sections 248, 368, 282 and 124

Mukherjea

sections 307, 436, 342 and 14

High Court of Hyderabad

Shripat Rao

S. Ali Khan

29th September, 1950

26th of Janua~, 1950

article 14

article 32

Qasim Razvi

Habeeb Mohamed

Mukherjea J. Peerbhoy

article 13(1)

26th of January, 1950

section 5

of J auuary, 1953

article 13(1)

Qasiin Razvi

article 14

5th of January, 1.950

11th of February, 1950

Rabeeb .Afohatned

State of Hyderabad

Peerbhoy

section 267

article 14

P.eerbhoy

section 8

Section 8

section 7

section 7

section 8

section 7

section 7

section 8

section 10

Habeeb Mohatned

Afukhorjoa

Code of Criminal Procedure

section 8

section 7

Peerbhoy

Section 20

Section 302

section 20

Section 307

H.E.H. the Nizam

H. E. H. the N

Mukhtrjda

section 8

articles 13(1) and 14

section 20

section 307

section 374

Hyderabad High Court

section 20

H.E.H. the Nizam

11th December, 1950

2nd January, 1951

5th of February, 1951

11th May, 1951

1st April, 1951

Nizam

section 20

Habeeb Mohamed

These matters

Habeeb Mohamed

The State a/ Hyderabad.

section 5

article 32

GHULAivI HASAN

M ukherjea

article 32

19th January, 195.3

article 14

article 13

article 14

Habeeb Mohammad

section 5

Qasim Ra%vi

article 14

article 13(1)

Habeb Mohamed

State of

Hyd

Ghulam Hasan

Ghulani Hasan

section 8

section 7

section 8

S 677

POPPATLAL SHAH

POPPATLAL SHAH

v. 1'HE scrATE OF MADRAS.

scrATE OF MADRAS

UNIO~ OF INDIA

UNIO~ OF INDIA AND OTHERS-Iuterveuers. [

PATANJALT SAsrnr

VrvrAN BosE

GHULAM HASAN aud BHAGWATI

Maclras Sales Tax Act

ss. 2, 3

Madras Sales Tax Act, 1939

Ghulam Ha1an


S.C.R.

SUPREME COURT REPOR'I'S 677

this right iu favour of commuting the death sentence to a sentence for life. The denial of this right in the Hegulatiou is discriminatory ou the face of it aud deprives the petitioner of a valuable right. I concede, however, that this objectionable feature of the Regulation is severable from the other parts. I further agree that the stage for the exercise of that right has uot yet arisen, for the appeal of the petitioner is still pending iu this court. If the appea, J is allowed, or the sentence is reduced, uo question of the confirmation of the death sentence by the Nizam will arise.

If, however, the appeal is dismissed, it will be open to the petitioner to claim this right. It would not be desirable at this stage to express au opinion whether this right is a substantive right which vests iu the petitioner or oue relating to a mere matter of procedure, as that question will have to be considered aud decided when the appropriate stage arrives.

I wou Id, therefore, agree iu dismissing the petition.

Petition dismissed.

Ageut for the petitioner: Rajinder Narain.

Agent for the respondent: G. H. Rajadhyaksha.

POPPATLAL SHAH

v. 1'HE scrATE OF MADRAS.

UNIO~ OF INDIA AND OTHERS-Iuterveuers. [PATANJALT SAsrnr O.J., MuKHERJEA, VrvrAN BosE,

GHULAM HASAN aud BHAGWATI JJ.J

Maclras Sales Tax Act (IX of 1939), ss. 2, 3 (before amendment of 1947)-" Sale within the vrovince", meaning of-Levy of tax on sales where vroverty in the goods vassed outside the vrovince -Legal ity-Provincial Legislature-Territorial jurisdiction.

Under the Madras Sales Tax Act, 1939, as it stood before it was amended by the '.\fadras Act XXV of 1947, the mere fact that the contrnct of sale was entered into within \he frovjnce of

Habe6b Mohamed

v, Th• Stats of Hyderabad.

Ghulam Ha1an J.

March 80.

678 SUPREME COUR'f REPOR'I. 18 (1953)

19b3 Madras did not make a transaction which was completed in another province where the property in the goods passed, a sale within the PoppJtlol Shah Province of Madras and no tax could be legally levied upon such a

v. transaction under the provisions of the Act.

The State of

Madras.

Though a Provincial Leg:slature could not pass a taxation statute which would be binding on any other part of India it was quite competent for a province to enact a legislation imposing taxes on transactions concluded outside the province provided there was a sufficient and real territorial nexus between such transactions and the taxing province.

The title and preamble, whatever their value might be as aids to the construction of a statute, undoubtedly throw light on the intention and design of the Legislature and indicate the scope and purpose of the legislation itself.

It is a settled rule of construction that to ascertain the legislative intent all the constituent parts of a statute are to be taken together and each word, phrase or sentence is to be considered in the light of the general purpose and object of the statute.

Judgment of the Madras High Court reversed.

CRIMINAL APPELLATE

JUHISDIOTION: Criminal Appeal No. 92 of 1952.

Appeal under articles 132(1) and 134(1) (c) of the Constitution of India from the Judgment and Order da, ted the 29th August, 1962, of the High Court of Judicature at Madras (Rajamauuar C.J. and Veukatarama Ayyar J.) in Criminal Appeal No. 129 of 1952 arisiugout of the.order dated the 25th February, 195\l,

of the Court of the VII Presidency Magistrate, Egmore, Madras, in C. T, No. 1368 of the Calendar

for 1960.

B. Somayya (0. R. Pattabhi Raman, with him) for the appellant .

V. K. T. Chari, Advocate-General of Madras (V. V.

Raghavan and Alladi Kuppuswami with him) for the respondent.

M. 0. Setalvad, Attorney-General for India (G. N.

Joshi and P. A. Mehta, with him) for the Union of India.

B. K. P. Sinha for the State of Bihar.

S. M. Sikri, Advocate-General of Punjab (M. L.

Sethi, with him) for the State of Punjab.

8.C.R.

SUPREME COUR1' REPOR'l'S 679

A. R. Somanatha Iyer, Advocate-General of Mysore 1958 (R. Ganapathy Iyer, withhim) for the t:)tate of

- 1- 8 h M Poppa! al ha ysore. v.

K. B. Asthana for the State of Uttar Pradesh.

The Stat• of T.

N. Subramanya Iyer, Advocate-General of Travancore-Cochin (M. R. Krishna Pillai and Balakrishna Iyer, with him) for the State oi Travancore- Cochin.

V. N. Sethi for the State of Madhya Pradesh.

Hajarnavis for Husain Kasam Dada (India) Ltd. (Intervener No. 8).

1953.

March 30.

The Judgment of the Court was delivered by

MuKH)'RJEA J.-Ths appeal, which has come before us o~ a certificate grauted by the Madras High Court under articles 134(1) (c) and 132(1) of the Constitution, is irected agaimt an appellate judgment of a Division Bench of the High Court of Madras, passed in Criminal Appeal No. 129 of 1952, by which the learned Judges affirmed an order of the Seventh Presidency Magistrate, Madras, dated February 25, 1952, convicting the appellant of an offence punishable under section 15 of the Madras General Sales 'fax Act and sentencing him to pay a fine of Rs. 1,000; in default to snfler imprisonment for a period of 3 months.

The appellant is a partner of a firm of merchants called "Indo-Malayan Trading Company" which has its head office in the city of Madras and carries on the business of selling and purchasing groundnut oil, sago and kirana articles.

For the period-April 1, 1947, to December31, 1947-the company was assessed to sales tax under the Madras Act IX of 1939 for an amount of Hs. 37,771 annas odd on a total turnover of Rs. 37,75,257 and for failure to pay the same proceedings were instituted against him under the provision of section 15 of the Act which resulted in his conviction as mentioned above.

The course of business, which is usually followed by the company

Madras.

6so

SUPREME COURT REPOHTS [1953)

1968 and which was actually followed during the period for

P --;; Shh which assessment is made, .is as follows: 'I'he com

appat.~ " pany receives orders in its Madras office from Cal Th• State of cutta merchants for supply of certain articles. 'l'hese

Madras. articles are purchased in the local markets and they are despatched to Calcutta by rail or steamer. 'fhe Mukherjea J. railway receipts and bills of lading are taken in the name of the vendor companyand so also a, re the insurance policies, and they are sent to the company's bankers in Calcutta who deliver the same to the consignees on payment of prices and other charges. The sole point that requires consideration is, whether in bhese circumstances the sale transactions were liable to be taxed under the General Sales Tax Act of Madras?

Before the High Court both the 'partie~ seem to have accepted the position that if on the faQts stated above, which were not disputed by either side, the sales could be held to have taken place within tbe Province of Madras, the tax could legitimately be levied on them but not otherwise. The parties differ ed, however, as regards the test to be applied, in determining whether the sales did take place within the Province of Madras or not.

On behalf of the appellant the contention raised was that the place of sale in regard to all the transactions was Cal cutta, as the property in the goods sold admittedly passed to the purchasers in that city. 'l1he contention of the respondent State on the other hand was that the true test for determining the locality of the sale was not where the property in the goods sold passed, but where the actual transaction was put through.

As the company had its head office in the city of Madras, its accounts were maintained there and the goods were delivered to the common carrier in that city, the sale, according to the respondent, must be deemed to have taken place in Madras even though the property in the goods sold passed outside the province.

The High Court accepted this contention of the respondent State.

In the opinion of the learned

s.c.:R.

SUPREME COURT REPOirrs 6Si

Judges, the word "sale" has both a legal and 11 popu- 1958 Jar meaning. In the legal sense, it imports passing of

- 1- 1 Sh h t . h d d , . , h' h h Poppat a a proper y m t e goo s an it is m t is sense t at t e v word is used in the Sale of Goods Act.

In the popu- Th• s:ate of Jar sense, however, it signifies the transaction itself Madras. which results in the passing of property.

As the object of the Legislature in the Sales Tax Act is to Mukherj.a J. impose a tax on the occasion of the sale, it is immaterial that the sale has been completed outside the proYince. 'l'he place where the property passes is, it is said, a matter of no concern to the taxing authority and iu such context the popular meaning of the word is more appropriate and should be adopted. The further contention raised on behalf of the appellant, that if this view was accepted, the sales tax would have to be regarded as being extra-territorial in its operation and as such ultra vires the Provincial Legislature. was repelled by the High Court on the authority of the well known decision of the Judicial Committee in Wallace Brothers etc., cf: Company v.

Commissioner of Income-tax, Bombay(1).

It is the propriety of this decisiun that has been challenged before us and the contentious raised by Mr. Somayya, who appeared in support of the appeal, are of a two-fold character: 'l'he learned counsel has argued in the firnt place that the Provincial Legislature functioning under the Government of India Act, 1935, was constitutionally incompetent to enact a legislation of this character which according to the interpretation put upon it by the High Court is capable of operating on sale transactions concluded outside the province.

The other contention is that on a proper construction of the relevant provisions of the Madras Sales Tax Act the High Court ought to have held that they do not authorise the imposition of sale tax in respect of a transaction of sale where prop_erty in the goods sold passes outside the provmce.

'l'he first contention appears to us to be unsustainable.

Section 100 (3) of the Government of India

(I) [1948] F.C.R. I (P.C.).

.. 682

SUPREME COURT REPORTS (1953}

1963 Act, 1935, upon which Mr. Somayya relied and -tl 1 Sh 1 which corresponds to article 246(3) of the Constitu- Poppa a a i . v. t10n runs as follows :

The State of

!iladras. -·- Mukherje1. J.

"Subject to the two preceding sub-sections, the Provincial Legislature has and the Federal Legislature has not, power to make laws for a province or any part thereof with respect to any of the matters enumerated in List II in the Second Schedule.'' The entry in the Provincial List that is relevant for our purpose is Entry No. 48 and that speaks of "taxes on the sale of goods and on advertisements." The entry does not suggest that a legislation imposing tax on sale of goods can be made only in respect of sales taking place within the boundaries of the province; and all tbat section 100(3) provides is that a law could be passed by a Provincial Legi'Slature for purposes of the province itself. It admits of no dispute that a Proviucial Legislature could not pass a taxation statute which would be binding on any other part of India outside the limits of the province, but it would be quite competent to enact a legislation imposing taxes on transactions concluded outside the province, provided th&t there was sufficient and a real territorial nexus between such transactions and the taxing prnvince. '!'his principle. which i,; based upon the decision of the Judicial Committee in Wallace Brothers etc. J: Company v. Commissioner of Incometax, Bombay(') has been held by this court to be applicable to sale tax legislation, in its recent decision in the Bombay Sales Tax Act case (2) and its propriety is ueyond question. As a matter of fact, the legislative practice in regard to sale tax laws adopted by the Provincial Legislatures prior to the coming into force of the Conatitution has been to authorise imposition of taxes on sales and purchases which were related in some manner with the taxing province by reason of some of the ingredients of the transaction having taken phce within the province or by

(1) [1948] F.C.R. 1 (P.G.).

(z) The State of Bombay & Another v. United lrlotors (India) Ltd, cC Othet's-Civil Appeal No. 20• o:f 195i.

S.C.R.

SUPREME COUR'I.

1 REPORTS 683

reason of the production or location of goods within 1958 it at the time when the transaction took place. If in - the Madras Sales 'fax Act the basis adopted for taxa- Popp, tlal Shah

tion is the location of the place of business or of the Th• ;;, t, of goods sold, within the Proviuceof Madras, undoubt- Madras. edly it would be a valid piece of legislation to which no objection on constitutiona1 grounds could be taken.

Mukherjea J.

The controversy, therefore, narrows down to the short point as to what exactly has been adopted as the basis of the levy of sale tax by the Madras Legislature.

This leads us to the question of interpretation of the statute which is involved in the second point raised by Mr. Somayya.

It is a settled rale of construction that to ascertain the legislative intent, all the constituent parts of a statute are to be taken together and each word, phrase or sentence is to be considered in the light of the general purpo, se and object of the Act itself. The title of the Madras Sales Tax Act describes it to be an Act, the object of which is to provide for the levy of a general tax on the sale of goods in the Province of Madra~ and the very same words are repeated in the preamble which follows.

The title and preamble, what-ever their value might be as aids to the construe

tion of a statute, undoubtedly throw light on the intent and design of the Legislature and indicate the scope and purpose of the legislation itself.

The title and preamble of the Madras Sales Tax Act clearly show that its object is to impose taxes on sales that take place within the province, though these words do not necessarily mean that the property in the goods sold must pass within the province., The expression

"sale of goods" is a composite expression consisting of various ingredients or elements.

Thus, there are the elements of a bargain or contract of sale, the payment or promise of payment of price, the delivery of goods and the actual passing of title, and each one of them is essential to a transaction of sale though the sale is not completed or concluded unless the purchaser becomes the owner of the property. 'rhe question is what element or elements have been accepted

684 SUPREME COURT REPOR'fS [1953]

1958 by the Madras Legislature as constituting a sale in

Po ~-; Sh 1 the province upon which it is the object of the statute ppa:. "'to levy tax. Section 2(h) gives the definition of "sale"

The State of and it is defined as meaning, "every transfer of the Madras. property in goods by one person to another in the course of trade or business for cash or for deferred Mukhorjea J. payment or other valuab'le consideration, but does not include a mortgage, hypothecation, . charge or pledge."

Unmistakably the stress is laid in this definition on the element of transfer of property in a sale and no other.

The language gives no indication of the popular meaning of sale in which according to the High Court, the word was used.

It is to be noticed that there was no provision by way of explanation of this definition, in operation, at the material time to indicate in what cases a sale would be regarded as taking place within the Province of.Madras, although the property in the goods sold did pass outside the boundaries of the province.

Such explanations were added by the Madras Act XXV of 1947 and one of these explanations, namely explanation 2, provides as follows:

"Notwithstanding anything to the contrary in the Indian Sale of Goods Act, 1930, the sale or purchase of any goods shall be deemed, for the purposes of this Act, to have taken place in this Province, wherever the contract of sale or purchase might have beenmade-

(a) if the goods were actually in this Province, at the time when the contract of sale or purchase in respect thereof was made, or

(b) in case the contract was for the sale or pnrchase of future goods by description, then, if the goods are actually produced in this Province at any time after the contract of sale or pmchase in respect thereof was made."

It would be clear from this that these trnnsacti0ns were not considered by the Legislature to constitute sales within the Province of Madras under the defini.- tion itself, but by resort to a legal fiction they were

S.C.R.

SUPREME COUR'l' REPORTS 685

declared to be so, notwithstanding any provision in 1958 the Sale of Goods Act to the contrary which, it was P ~Sh h assumed, would otherwise be applicable.

The explaoppat: a nation further shows that in defining "sale" in sec- The st:,, of tion '2(h), the Legislature had in mind a sale in the Madras.

Province of Madras and as these words occur in the title and preamble of the Act it was not deemed uecee- Mu/, herjea J. sary to repeat them in the definition or the charging sections. Section 3 is the charging section in the Act and it provides for the levy of a tax on the total • turnover of a dealer for a particular year. A "turnover" is defined to be the aggregate amount for which goods are either bought or sold. The charging section purports .to levy a tax on the sale of goods and the tax is on the sale of goods in the Province of Madras as defined in section 2(h) of the Act read in the light of its title and prea.mble.

In our opinion, the mere fact that the contract for sale was entered into within the Province of Madras does not make the transaction, which was completed admittedly within another province, where the property in the goods passed, a sale within the Province of Madras according to the provisions of the Madras

Sales Tali: Act and no tax could be levied upon such a transaction under the provisions of the Act.

A contract of sale becomes a sale under the Sale of Goods Act only when the property in the goods is transferred to the buyer under the terms of the contract itself. The presence of the goods within the province at the time of the contract would undoubtedly make the s:i.le, if subsequently completed, a sale within the province by reason of the exp \anation added by Act XXV of 1947; but as this explanation was not in operation during the relevant period with which we are concerned, the assessment of sale tax, in our opinion, on the transactions during this period is illegal and not warranted by the provisions of the Act. It is worthwhile to mention in this connection that except for the period in question no tax was . attempted to be levied on similar transactions of the

a.ppellant by the taxing authorities in' any of the

SUPREME COURT REPORTS [1953]

1953 previous years, though the Act came iuto operation

Poppatlal Shah as early as the ye11r 1939. It is not disputed also that

v. the company is pa.ying sale tax on its transactions The State of with the Calcutta merchants sirice the explanation

Madras. added by Act XXV of 1947 came into force.

In our opinion, the appeal should be allowed and the con- Miikhe1j ea J. b 1 viction and sentence passed by the courts e ow should be set aside. The fine and sale tax, if actually paid, should be refunded to the appellant.

Appeal allowed.

Agent for the a, ppellant: M. S. K. Aiyangar.

Agent for the respondent (the State of Madras), the L' nion of India, and the States f Punjab, Mysore, Madhya Pradesh and Travancore- Cochin (Interveners): G. H. Rajadhyaksha.

Agent for the State of Bihar : R. 0. Prasad.

Agent for the State of TJ. P. : 0. P. Lal.

Agent for Intervener No. 8: Rajinder Narain.

PUNJAB NATIONAL BANK LTD.

EMPLOYEES OF THE BANK.

[PATANJALI 8ASTRI 0. J.,

MUKHERJEA, S. R. DAS,

GHULAM HASAN and BHAGWATI JJ.]

Industrial Disp11t'8 Act, 1947, s. 33-lnili; strial dispute-Reference to Tribunal-Strike on fresh grounds-Dismissal of strikers during pendency of proceedings before Tribunal-Legality-Scope of s. 33.

During the pendency of proceedings before an Industrial Tribunal relating to certain disputes between a bank and its workmen represented by the ur.ion of its employees, the respondents along with other workmen numbering over a thousand commenced a gerieral strike in connection with a fresh dispute.

The strikers were dismissed and on a reference to another Tribunal, it was held by that Tribunal that, the strike was illegal and the dismissal was legal.

The Labom Appellate Tribunal held on appeal that though the strike was illegal the bank had condoned it and the dismissal was therefore illegal ancj ordered reinstatelllent, Oq f1nther appeal ; ·

S 677

Rajinder Narain

G. H. Rajadhyaksha

POPPATLAL SHAH

HE scrATE OF MADRAS

MuKHERJEA

VrvrAN BosE

GHULAM HASAN aud BHAGWATI JJ

Maclras Sales Tax Act

ss. 2, 3

Madras Sales Tax Act, 1939

Ghulam Ha1an

Madras

State of

Madras

India

Madras High Court

articles 132(1) and 134(1)

Constitution of India

Rajamauuar C.J.

Veukatarama Ayyar

B. Somayya

R. Pattabhi Raman

V. K. T. Chari

V. V.

Raghavan

Alladi Kuppuswami

M. 0. Setalvad

G. N.

Joshi

P. A. Mehta

B. K. P. Sinha

S. M. Sikri

M. L.

Sethi

8.C.R.

SUPREME COUR1' REPOR'l'S 679

A. R. Somanatha Iyer, Advocate-General of Mysore 1958 (R. Ganapathy Iyer, withhim) for the t:)tate of
1- 8 h M Poppa!

S 679

A. R. Somanatha Iyer

R. Ganapathy Iyer

K. B. Asthana

T.

N. Subramanya Iyer

M. R. Krishna Pillai

Balakrishna Iyer

V. N. Sethi

MuKH)'RJEA

articles 134(1)

High Court of Madras

Seventh Presidency Magistrate, Madras

section 15

Indo-Malayan Trading Company

April 1, 1947

Madras Act IX of 1939

section 15

Calcutta

Sale of Goods Act

Wallace Brothers

Somayya

Section 100

article 246(3)

State of

Second Schedule

section 100(3)

[1948] F.C.R. 1

Mukherjea

Madras Legislature

Madra~

Section 2(h)

Madras Act XXV of 1947

Sale of Goods Act

Section 3

section 2(h)

Sale of Goods Act

M. S. K. Aiyangar

State of Madras

0. Prasad

P. Lal

PUNJAB NATIONAL BANK LTD

PATANJALI 8ASTRI

MUKHERJEA

S. R. DAS

BHAGWATI

s. 33

s. 33


SUPREME COURT REPORTS [1953]

1953 previous years, though the Act came iuto operation

Poppatlal Shah as early as the ye11r 1939. It is not disputed also that

v. the company is pa.ying sale tax on its transactions The State of with the Calcutta merchants sirice the explanation

Madras. added by Act XXV of 1947 came into force.

In our opinion, the appeal should be allowed and the con- Miikhe1j ea J. b 1 viction and sentence passed by the courts e ow should be set aside. The fine and sale tax, if actually paid, should be refunded to the appellant.

Appeal allowed.

Agent for the a, ppellant: M. S. K. Aiyangar.

Agent for the respondent (the State of Madras), the L' nion of India, and the States f Punjab, Mysore, Madhya Pradesh and Travancore- Cochin (Interveners): G. H. Rajadhyaksha.

Agent for the State of Bihar : R. 0. Prasad.

Agent for the State of TJ. P. : 0. P. Lal.

Agent for Intervener No. 8: Rajinder Narain.

PUNJAB NATIONAL BANK LTD.

EMPLOYEES OF THE BANK.

[PATANJALI 8ASTRI 0. J.,

MUKHERJEA, S. R. DAS,

GHULAM HASAN and BHAGWATI JJ.]

Industrial Disp11t'8 Act, 1947, s. 33-lnili; strial dispute-Reference to Tribunal-Strike on fresh grounds-Dismissal of strikers during pendency of proceedings before Tribunal-Legality-Scope of s. 33.

During the pendency of proceedings before an Industrial Tribunal relating to certain disputes between a bank and its workmen represented by the ur.ion of its employees, the respondents along with other workmen numbering over a thousand commenced a gerieral strike in connection with a fresh dispute.

The strikers were dismissed and on a reference to another Tribunal, it was held by that Tribunal that, the strike was illegal and the dismissal was legal.

The Labom Appellate Tribunal held on appeal that though the strike was illegal the bank had condoned it and the dismissal was therefore illegal ancj ordered reinstatelllent, Oq f1nther appeal ; ·

S.C.R.

SbPREME COURT BEPOtTS 687

Held, that even assuming that the strike was illegal and the 1953 bank had not condoned it, as proceedings were pending before another Tribunal between the bank and its workmen in respect P1"ijab Nationat o( an industrial dispute, under section 33 of the Industrial Dis- Ban1' Ltd. putes Act, 1947, the ban)< could not dismiss the workmen save v, with the permission in writing of that Tribunal which was not Employ8's of obtained and the dismissal was accordingly illegal on this ground. the Ban1'.

Section 33 of the Industrial Disputes Act, 1947, applies to strikes and lock-outs as well, though it does not appear in Chap. V of the Act which is headed "Strikes and lock-outs" but in Chap. VII which is headed "Miscelhneous." '

CIVIL APPELLATE JuRisDICTION: Civil Appeal No. 181 of 1952.

Appeal by special leave granted by the Supreme Court on the 16th October, 1952, from the decision dated the 22nd December, 1952, of the Labour Appellate •rribunal of India at Calcutta in Appeals Nos.

Cal. 366/51, Cal. 69/52 and Cal. 70/52, arising out of the award dated the 9th Februa, ry, 1952, of the Chairman, Industrial Tribunal, Delhi.

M. 0. Setalvad (Attorney-General for India) and N. 0. Chatterjee (R. L. Agarwal, with them) for the appellant.

A. S. R. Chari and Hardyal Hardy for the respondents.

1953. April 10. '.l 1he Judgment of the Court-, was delivered by

PATANJALI 8ASTRI C. J.· -'rhis is an appeal by special leave from a decision dated September 22, 1952, of the Labour Appellate Tribunal of India at Calcutta setting aside an award dated February 9, 1952, made by the Industrial 'l'ribunal constituted to adjudicate on certain disputes between the appellant, the Punjab National Bank Ltd., Delhi (hereinafter referred to as the Bank) and its workmen, the respondents represented by their Union.

The facts leading to this appeal may be briefly stated. Several other disputes between the parties had already been referred on February 21, 1950, to another Industrial Tribunal presided over by Sri K. S.

688 . SUPREME COUR'l' REPORrs (1953]

w; s Campbell-Puri, and during the pendency of the pro- . -;;; 1ceedings before the said Tribunal, the Bank alleged PunJab ., ationa h h h k Bank Ltd. that t e respondents along wit ot er wor men v. numbering more than a t'.1ousand illegally commenced Employees of a general strike on April 18, 1951, in connection with

the Bank. a fresh dispute. Thereu-:ion, notice was issued to the strikers that unless they returned to work by April Patanjali 24, 1951, they would be deemed to have left service Sastri a. J. of their , own accord. '!.'hat notice having been ignored by the strikers a scond noticEl, was issued to them on April 27, 1951, terminating their service.

The Government of India thereupon intervened, and as a result of the discussions held between the Government officials and the Ba.uk, the latter agreed to take back all the employees except 150 against whom the Bank had objections on account of their alleged subversive activities and other objectionable and unlawful conduct before and during the strike.

On July 2, 1951, the Government of India constituted a 'l'ribuual to decide the questions regarding the dismissals etc. of the aforesaid 150 employees, and that 'l'ribunal, after calling for the statements of case on behalf of the parties and hearing them, made an award on J<'ebruary 9, 1951, refusing reinstatement on the sole ground that the respondents had gone on an illegal strike in contravention of section 23(b) of. the Indus- 'trial Disputes Act, and that the Bank was entitled to dismiss them. The Tribunal, however, granted to the respondents compens.ation by way of salary and allow- ·

ances at half the rates from the date of dismissal to the date of the publication of the award.

'l'he respondents appealed to the Labour Appellate Tribunal at Calcutta which, while agreeing with the Industrial 'l'ribunal that the strike was illegal, held that it was condoned by the Bank and it was, therefore, not open to it to justify the dismissal of the respondents on the ground that they had participated in the illegal strike.

The Appellate Tribunal further held that the dismissal of the respondents was wron.gful because no charges were framed against any of them in respect of their alleged aets of violence or

8.C.R.

SUPREME COURT REPOR'l'S 689

subversive activities and their explanation was not 1958 called for.

The Appellate Tribunal accordingly . -b" . . h h h h . d Punja l••t•oi>a< t oug t t at furt er ev1 ence was nece1<sary on Banlc Ltd. certain specific points mentioned in its order and rev. served its decision as to whether the respondents were Employees of entitled to reinstatemsn~ till after such evidence was the Bank. taken.

Learned counsel for the Bank advanced a two-fold contention in support of this appeal.

He challenged the correctness of the conclusion that the Bank had, in the circumstances of the case, condoned the illegal strike by the respondents, and maintained that it was open to the Bank to rely upon the illegal strike as justifying the dismissal of the respondents. On that basis learned counsel argued that there could no longer be any question of reinstating the respondents in the service of the Bank as such reinstatement would in law amount to compelling the Bank to employ these respondents afresh iu its service, which the Appellate Tribunal had no jurisdiction to do. He accordingly submitted that this Court should set aside the order of the Labour Appellate Tribunal dated

September 22, 1952, obviating the further enquiry directed by the said order.

We consider it unnecessary to express any opinion on the question of condonation or waiver of the illegal strike; for, assuming that there was no such condonation or waiver and it was open to the Bank to r,!lly upon the illegal strike as a valid ground for dismissing the respondents, we are of opinion that section 33 of the Industrial Disputes Act, 1947, furnishes a short answer to the further contention that the Appellate Tribunal had no jurisdiction to order reinstatement of the respondents.

That section provides, inter alia, that no employer shall, during the pendency of any proceedings before a Tribunal in respect of any industrial dispute, discharge by way of dismissal or otherwise, any workman concerned in the dispute save with the permission in writing of the said 'l'ribunal.

Admittedly, no such permission was obtained. If the pendency of the proceedings before

Palanjali Sastri O. J.

690 SUPREME cotr:RT REPORTS [1953)

1953 Sri Campbell-Puri made the strike of the respondents

Punjab Natwnazillegal under section 23(b) of the Act, the dismissal Bank Ltd. of the respondents by the Bank without obtaining his v. permission as required by section 33 was also illegal.

Employ"' of We see no force in the argument of the Attorneythe Ba,.k.

General that the section has no application to the case as strikes and lock-outs are dealt with in a differ- Patanjali.

Sastri a. J. ent chapter, Chapter V, and as the respondents were not concerned in the disputes pending adjudication before Sri Campbell-Puri. The terms of section 33 are wide enough to cover the present case, and the fact that it finds place in Chapter VII headed "Miscellaneous" is by no means inconsistent with its general application to all cases of discharge on whatever ground it may be based. This is shown by the recent amendment of the section by Act XL VIII of 1950 which has omitted the words "except for misconduct not connected with the dispute" in the newly substituted section. It is equally 'clear that the respondents are concerned in the disputes pending before Sri

Campbell-Puri, as it is conceded that any award made by him would bind the respondents. Section 33 being thus applicable to the case, the contention of the Bank that the dismissal of the respondents was lawful and that in consequence the Appellate Tribunal had no jurisdiction to direct their reinstatement falls to the ground.

We therefore see no reason to interfere with the ord'er made by the Labour Appellate Tribunal and we accordingly clismiss the appeal with costs.

Appeal dismissed.

Agent for the appellant: Ganpat Rai.

Agent for the respondent: V. P. K. Nambiyar

Poppatlal Shah

M. S. K. Aiyangar

G. H. Rajadhyaksha

R. 0. Prasad

P. Lal

Rajinder Narain

PUNJAB NATIONAL BANK LTD

EMPLOYEES OF THE BANK

MUKHERJEA

S. R. DAS

GHULAM HASAN

BHAGWATI JJ.

s. 33

s. 33

section 33

Section 33

Industrial Disputes Act, 1947

Supreme Court

M. 0. Setalvad

N. 0. Chatterjee

R. L. Agarwal

A. S. R. Chari

Hardyal Hardy

Punjab National Bank Ltd., Delhi

February 21, 1950

S.

688

April 27, 1951

Government of India

Ba.uk

July 2, 1951

J<'ebruary 9, 1951

section 23(b)

Labour Appellate Tribunal at Calcutta

S 689

September 22, 1952

section 33

Industrial Disputes Act, 1947

Palanjali Sastri

Punjab Natwnazillegal

section 23(b)

section 33

Campbell-Puri

section 33

Campbell-Puri

Section 33

Ganpat Rai

V. P. K. Nambiyar