A SOM NAm

UNION OF INDIA & ANR.

May 25, 1.171 • [G. K. M!TJ'ER, c. A. .VAID!ALINGAM AND P. JAGANMOHAN

REDDY 11.)

Preventio". of Corruption Act (2 of 1941), •· 5(1)(c}--Scope of.

Sanction for pr0Jecution-Principle1 for granting.

Practice and Procedure-Duty of prosecution to examine all Witne.JJes- Scope of.

Tho appellant who was a Major in the Military Engineering Service, was in charge of the expansion work of an air strip and was given po5session of the land acquired for that purpose, along with valuable crops standing on the land. He postponed giving delivery of the land to the contractor for the extension work. Instead, he allowed one of the owner, s cf the land to cut the crop and take it away without in any way accounting fer it. A charge-sheet was filed against the appellant under s. 5(1) (c) and s. 5 (l)(d) read withs. 5(2) of the Prevention of Corruption Act, 1947. He was acquitted of the offence under s. 5(1) (d) but was convicted for the offence under •. 5(1)(c) and the conviction was confirmed by the High Court.

In appeal to this Court, it was contended inter alia (1) that the .; anction &iTen by the Government or bis prosecution did not cover the trial of the char10 under 1. 5(1) (c); and (2) the prosecution did not examine all tht witn...,.. necessary to unfold the story of the prosecution.

HELD: (I) For a sanction to be valid it must be established that the sanction waa aiven in respect of the facts constituting the offence with which tho accused is proposed to be charged. It is desirable that the facts 1hould be referred to in the sanction itself. If they do not appear on th• face of it, tho prosecution must establish aliunde by evidence that tho .. tacts were placed before the sanctioning authority.

The sanction must disclose that the sanctionin11 authority bad fully applied its mind to the• and the sanction should be correlated to the particular offence or offencH witll which tho accused io cbaried or convicted. [8S2B-F)

In the present cue, the facts which the Government considered for tho purpose of grantinll sanction were :(a) that the appellant "'"' a public servant entrusted with crops standing on tho land acquired for !be exsion of an air field, (b) that by abnsing bis position as a public servant he allowed standing crop to be cut from the said land, (c) that by corrupt or IDegal means and by abusing his position as a public servant be obtained pecuniary advantage of about Rs. 2,000 as the value of the crops that were cut from the land and that he dishonestly or fraudulently misappropriated the same by converting it into his own use. Under s. S(I) (c) of the Act a public servant shall be said to have committed the offence of misconduct in bis duties if he dishonestly allows any other person to convert to his own use property which is entrusted to the said public servant.

The facts which have been set out in the order granting th• sanction are sufficient to indicate that tho authorities granting the sanction had tho

SOJ.I NATH v. UNION (Jaganmohan Reddy, J.) 849

offence under s. 5(1)(c) in their contemplation. In fact, the order specifi- A cally mentions that provision while granting sanction. Even if there was an inference or implication that the persons cutting the crops were abetting the appellant in the offence the sanction could not be held to be bad on that account. [854D, 855DJ

Bhagat Ram v. State of Puniab, A.l.R. 1954 S.C. 621, Madan Mohan Singh v. State of U.P. A.l.R. 1954 S.C. 637, Goku/ Chand Dwarkadas Morarka v. The King, A.l.R., [1948] P.C. 82 and .Jaswant Singh v. State of B Puniab, [1958] S.C.R. 762, referred to.

(2) With reference to each one of the person who, according to the appellant, should have, been called as witnesses there was alerady evidence relating to the particular matter about which those persons would have given evidence.

In the circumstances the non-examination of other witnesses, without anything more, could not be treated as a defect in the prosecution. [863G] C

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 102 of 1969.

Appeal by special leave from the judgment and order dated April 9, 1969 of the Punjab and Haryana High Court in Criminal Appeal No. 1055 of 1966. D

Frank Anthony and K. B. Rohatgi, for the appellant.

H. R. Khanna and R. N. SachJhey, for the respondents.

The Judgment of the Court was delivered by

Jaganmohan Reddy, J.-This Appeal is by Special leave against the Judgment of the High Court of Punjab and Haryana confirming the conviction of the accused under Section 5(l)(c) of the Prevention of Corruption Act 1947 as also Ille sentence awarded by the Sessions Judge of orie year's Rig';3lmprisonment and a fine of Rs. 2500, in default sl1r m Rigorous Imprisonment.

The facts of the case in lirief are that in view of the Chinese invasion Air Field at Sirsa required to be extended for which purpose the Ministry of Defence, Govt. of India took steps to acquire some lands of agriculturists pursuant to which a Notification dated November 27, 1962 was issued under Section 4 of the Land Acquisition Act 1884 for acquiring 51.79 acres of land situated in the State of Ahmedpur. On the next day another Notification was issued under Section 6 of the Land Acquisition Act on November 28, 1962 and in view of the emergency action under Section 17 was taken for obtaining possession of the land W'ith a view to its development. The lands which were acquired belonged to several land holders including Moti Ram and P.W. 12 Kewal Chand. The Collector gave his award on 26-2-63 (Ex.

P. 26) in respect of these lands, which actually' measured 49.47

54--1 S. C. lndia/71

85(1

SUPREME COURT llEPORTS .[1971] SUPP. s.c.ll.

acres, at. Rs. 1350 per acre ounting to Rs. 66,784.50 np. Apart from this amount compensation was also awarded for standing crop amounting to Rs. 11,073.13 np.

Before the land was actually acquired the Appellant who was a Major in the Military Engineering Service was working as a Garrison Engineer and. was incharge of the extension. He had in anticipation of acquisition and execµtion of the work appointed A. B. Ranadive, P.W. ~4 as Assistant Garrison Engineer who was to be responsible for all the matters connected with the acquisition of land, demarcation of boundaries as an Engineer Incharge for execution of the contract and responsible for the maintenance of the Air Field. The work of the extension of Aerodrome was entrusted to one Telu Ram, P.W. 8 Contractor, with whom the M.E.S. Department entered into an agreement on December 3, 1962.

This agreement was Signed both by the Appellant and P.W. 14. The work according to that agreement was to be done in 2 phases-first phase was to commence on 10th January 1963 and was to be completed by 9th October 1963. After the completion of the first phase the second phase was to start on 10th October 1963 and completed by 9th May 1964. Pursuant to this agreement it is said that symbolic possession of the land which was acquired was taken over by the Tehsildar on !st February 1963, after which at any rate it appears from Ex. P. 24 that actual possession of this land was handed over by the said Tehsildar on 13th February 1963 to the Appellant. The receipt Ex. P. 24 bears the signature of N .. L. Handa, the Tehsildar and of Sukhchain Lal Jain, P.W. 11 on behalf of the Military Estate Officer and the Appellant. From this receipt it is evident that possession of 50.12 acres was handed over by the Tehsildar and taken over by the Appellant and the Military Estate Officer Sukhchain Lal Jain.

The case of the prosecution initially was that after the land so acquired with the standing crop was taken possession of by the Appellant he sold the crop to Moti Ram and Kewal Chand for Rs. 2500 and facilitated the cutting and taking away of the crop by postponing the handing over of the possession to the contractor till die 5th Aprfi 1963 and misappropriated the money. In respect of this allegation the First Information Report (Ex. P. 29) was issued on 14-1-64 in whkh the following statement is rele vant:-

"lt is alleged that Major Som. Nath ace.used who is a Garrison Engineer Sirsa Air Field s'ubsequently sometime in the months of March and April 1963 permitted the .removal of the sta, nding crop val11ed at Rs. 11073'-13 by Sbri Moti Ram an_d KCW!!l Chand etc., after ptltig illegal gratification of Rs. 3000 from them. Ma1or Som

SOid NATH v. UNION (Jaganmohan Reddy, J.)

Nath did not account for this amount in the Govt. Revenues. He thus abused his position as a public servant and caused pecuniary advantage to said Shri Moti Ram and Kewal Cliand by giving them standing crops ivorth Rs. 13,000 for a consideration of Rs. 3,000 only, which amount he accepted for his personal use and thereby also abused his official position and obtained pecuniary advantage for himself in a sum of Rs. 3000.

The facts disclose the commission of the offence, of criminal misconduct as defined in Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act 1947 by Major Som Nath accused. A regular case is therefore registered and entrusted to Inspector Baldev Raj Handa for investigation." After this F.I.R. certain statements were recorded l)y the Military authorities being DA to DE, OM, DM/l, ON & DL of Mani Ram, Mulkb Raj, Ganpat Ram, Tetu Ram, Kewal Chand and Sukhchain Lal Jain. A chargesheet was filed against the Appel ]ant under Section 5(1)(c) and 5(1)(d) read with 5(2) of the Prevention of Corruption Act on 5-8,1966 after obtaining sanction from the Govt. of India, Ministry of Hlome Affairs on 11th April, 1966 as per Ex. P.23. The Special Judge acquitted the Appellant of the second charge namely that being a public servant he had by corrupt or illegal means or by otherwise abusing bis position as a public servant obtained for himself a sum of Rs. 2,500 from Moti Ram of Sirsa for cutting the crops and thereby committed offence under Section' 5(1)(d) punishable under Section 5(2). The accused was however convicted under the first charge for an offence under Section 5(1)(c) in that he being a Garrison Engi neer incharge of the Air Field Sirsa and in that capacity entrust ed with standing crops of Sarson, Gram and Lusan on 30 acres of land a part of 49 acres of land acquired by the Govt. and which had been valued at Rs. 11.073.13 by the Revenue authorities, dis- , honestly or fraudulently allowed Moti Ram of Sirsa to mi8appro

priate the said standing crop and thereby contravened Section S(l)(c) of the Prevention of Corruption Act punishable with Section 5(2) of that Act. Against that conviction and sentence he appealed to the High Court which maintained the conviction and sentence.

The learned Advocate for the Appellant has meticulously taken us through the entire documentary and oral evidence and commented at length upon the various contradictions ahd incon gruities. in .the case of the prosecution "".Ith a view to establishing that when. the Appellant took possession of the land there was

no cro" standing on it:...-Otat the po5session of the land was in fact delivered to Tetu Ram, O, ntractor on I 0.1-1963 : that the sai!f <".Ontractor bad admitted that possession of the entfte land

SUPREME COURT REPORTS [1971] SUPP. s.c.R.

was received by him ; that he carried on the construction work in extending the Aerodrome; that 200/250 donkeys were also used for doin2 the work by reason of wb.ich the crop was damaged before Tehsildar had put the Appellant in possession of the land and as a matter of fact there was no crop thereon when he got the possession of the land. It was also contended that the High Court had not considered the contradictions in the earlier statement made by some of the witnesses to the Military authorities and that it relied on many of the documents for affirming the conviction of the Appellant without their actually being put to him under Section 342.

Before we consider these contentions it is necessary to deter mine another submission of the learned Advocate for the Appellant which goes to the root of the jurisdiction of the Court to try the offence, under Section 5(l)(c). H this contention is valid then the conviction of the accused cannot stand and therefore it is necessary to deal with this matter first. It may be mentioned that though a complaint was made in the application for a certi ficate for leave to appeal to this Court that tbe learned Single Judge of the High Court should have acquitted the Appellant on the sole ground that there was no proper sanction for the prosecution of the Appellant under Section 5(1) (c) of the Prevention of the Corruption Act, this question does not seem to have been urged before the High Court. In any case we do not think that there is any validity in the submission that the sanction given by the Govt. of India does not cover the trial of the charge under Section 5(!)(c) of the Prevention of Corruption Act. For a sanction to be valid it must be established that the sanction was given in respect of the facts constituting the offence with which the ac- . cused is proposed to be charged. Though it is desirable that the facts should be referred to in the sanction itself, nonetheless if they do not appear on the face of it, the prosecution must establish aliunde by evidence that those facts were placed before the sanctioning authorities. It is therefore necessary to first examine the order of sanction to ascertain on what facts it has been accorded.~

The sanction that has been accorded is in the following terms: 11th April 1966. "Whereas it is alleged that Major Som Nath ...... while functioning as Garrison Engineer, M.E.S., Air Field at Sirsa from 13-2-63 to 5-4-1963 by corrupt or illegal means or by otherwise abusing his position, as such public mervant, obtained pecuniary advantage of Rs. 2500 for alfoWiq the standing crops to be cut from the land

acqullied for the extension of Air Field Sirsa ; and or he dishoneltly or fraudulently realised and misappropriated Rs. 2SOO during the aforesaid period as the value of the

SOM NATH' UNION (Jaganmohan Rtddy, J.) 853

crops cut from the land acquired for the extension of Air Field Sirsa, which crops had been entrusted to him as a public servant and he instead of depositing the said sale price into the Govt. Treasury converted it to his own use;

And whereas the said acts of Major Som Nath ... ; .. constituted offences punishable under Section 5(2) of the Prevention of Corruption Act, read with Section 5(1) (c) and (d) (Act No. II of 1947) of the said Act and Sec tion 409 of the I.P.C.

And whereas the Central Govt. after fully and carefully examining the materials before it in regard to the said allegations and circumstances of the case, consider that Major Som Nath ...... should be prosecuted in a court of law for the said offences.

Now therefore, the Central Govt. doth hereby accord sanction under Section 197-Code of Criminal Procedure (Act No. 5 of 1898) and Section 6(!)(a) of tire Prevention of Corruption Act, 1947 (Act U of 1947) for the prosecution of Maj. Som Nath for the said offences and for any other offences punishable under the provi sion of law in respect of the afortiaid acts by the Court of competent jurisdiction.

By order and in the name of the President.

Sd/- (A, P. Veera Raghavan) Deputy Secretary to the Govt. of India."

From the above order it is apparent that the facts which the Central Govt. considered for the purposes of according sanction were (a) that the Appellant as a public servant was entrusted with crops situated on the land acquired for the extension of Air Field, Sirsa;

(b) that by abusing his position as a public servant he allowed the standing crops to be cut from the said land ;

(c) that by corrupt or illegal means and by abusing his position as a public servant he obtained pecuniary advantage of Rs. 2500 as the value of the crops to be cut from the land and/or he dishonestly or fraudulently misappropriated that sum by con verting It into his own use instead of depositing the said sale price in the Govt. Treasury.

On these facts and after applying its mind as spoken to by P.W. 10 Kalra the Government accorded its sanction for prosecution of the offences punishable under Section 5(2) read with

SUPREM( COURT REPORTS (1971] SUPP. s.c.a.

Section 5(1)(c) and 5(1)(d).

The question therefore would be whether these facts were sufficient to sustain the sanction wider 5(1)(c) even if the charge under 5(1)(d) had failed. This question in turn will depend upon what are the ingredients of the offences under 5(l)(c) and (d) read with Section 5(2). Under 5(1)(c)-A Public servant is said to commit the offence of misconduct in the discharge of his duty if he dishonestly or fraudulently misappro priates or otherwise converts for his own use any property en trusted to him or under his coi; itrol as a public servant or allows any other person so to do, and tinder (d) if he by corrupt or illegal means or by otherwise abusing his position as a public servant. obtains for himself or for any other person any valuable thing or pecuniary advantage.

It would be seen therefore that under Section 5(1)(c) a public servant will be said to commit the offence of misconduct in his duties if he dishonestly allows any other persons to convert te> his own use property which is entrusted to the said public servant The facts which have been set out in the order granting the sanc tion certainly are sufficient to indicate that the authorities grant ing the sanction had the offence under Section 5(l)(c) also in their contemplation. In fact the order specifically mentions thisprovision while granting sanction.

We should have thought this was an obvious conclusion but the learned Advocate for the Appellant strenuously contendeO' that the charge against the Appellant was of a motiveless offence and in any case the facts as disclosed show that not only at the time when the First Information Report was given but even at the time when sanction was accorded that the prosecution wa~ merely concerned with th" charge that the appellant had allowed the crops to be cut on the condition that Rs. 2500 will be paid and received the monpy and misappropriated or converted it t<> his own use by not paying it into the Govt. treasury. There I! therefore no basis for sanction for a charge under Section 5(1)(c).

It is further contended that the stand taken by the prosecutioa was that the persons who were permitted to cut the crops had not commiited any offence. If so a charge under Section 5(1) (c) would implicate those persons also in the commission of an offence which certainly would not have been in the contemplation of the authorities granting the sanction. In support of this contention three decisions have been cited before us namely BM€at

Ram v. State of Punjab('), Madan Mohan Singh v. State of U. P. ('), and Gokulchand Dw(ll'kadas Morarka v.

The Kini (')

(1) A. I. R.. 1954 S. C. 621.

(2) A. I. R.. 1954 S. C. 637.

(3) A. I. R,. 1948 Privy Council 82.

SOM NATH v. UNION (Jaganmohall Reddy, J.)

Bhagat Ram's case was not concerned with the sanction but only

with the question, whether the offence could be altered to one of abetment of an offence of Section 409 I.P.C. from one under Sec tion 409 simpliciter. It was held that an alteration of the Appel !ant's conviction under Section 409 I.P.C. into one of abetment thereof would imply a definite finding against the subordinate Judge who is not before the Court and as such it would be unfair to make such an alteration. We do not see how this case can assist the appellant because in the first place there is no question of an alteration of the charge and secondly the circumstance that someone who is not a public srvant abetted the appellant is hardly relevant. But even so the offence with which the appel !ant is charged under Section 5(l)(c) does not necessarily involve an abetment with the person whom he had dishonestly allowed to cut and take away the crop. For instance it is quite possible that the person whom he allowed to cut the crop may be his own relation or friend in whom he may be interested and who may, however, not know that the accused was doing something dis honest in permitting him to cut the crop. In any case the facts which have been stated in the sanction clearly indicate that the appellant has dishonestly allowed the crops to be cut so that there is no question of any inference or implication that the peri<ms cutting the crops were abetting him in the offence. Even if it were so the sanction cannot be held to be bad on that account.

Gokulchand Dwarkadas's case also is of no assistance to the appellant because in that case the sanction did not disclose the facts on which it was given but merely sanctioned the prosecution for a breach of certain provisions, Sir John Beamon! delive

ring the Judgement of the Judicial Committee, observed at pag~

84:

"But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that. those facts were placed before the sanctioning authority ...... Nor, in their Lordships' view, is a sanction given without reference to the facts a11nstituting tile offence a compliance with the actual terms of cl. 23. Under that clause sanction has to be given to a prosecution for the .contravention of any of the provisions of the Order. A person could not be charged merely with the breach of a particular provision of the Order ; he must be charged with the commission of certain acts which. constitute a breach. and it is to that prosecution-that iS, for having done acts which constitute a breach of the Order-that the sanction is required. In the present case there is nothing on the face of the sanction, and no extraneous evidence, to show that the sanctioning authority knew the facts alleged to

SUPREM!l COURT REPORTS [1971] SUPP. s.c.ll.

constitute a breach of the Order, and the sanction is invalid"

The case of Jaswant Singh v. The State of Punjab(') was also cited by the Respondent's advocate in support of the contention that the trial of two offences requiring sanction was not valid.

In that case sanction was given under Section 6 of the Prevention of Corruption Act 47 for the prosecution of the appellant for having received illegal gratification from one Pal Singh. He was charged with and tried for two offences under Section 5 (I) (a) of the Act for habitually accepting or obtaining illegal gratification and under Section 5(1)(d) for receiving illegal gratification from Pal Singh. The Session Judge had found that both charges were proved. While in Appeal the High Court held that the Appellant could neither be tried nor convicted of the offence under S(l)(a) as no sanction had been given in respect of it but upld. the conviction under Section 5(1)(d) for which sanction had been given. A perusal of the sanction would show that the sanctioning authority had applied their mind to only one instance but the prosecution were seeking to make the sanction cover the offence of a habitual bribe taker which clearly implies that the sanctioning authorities must consider the number of instances when the accused took bribes and on what occasions as would justify a charge of his being a habitual bribe taker. Sinha, J, as he then was while dismissing the appeal observed at page 766:-

"In the present case the sanction strictly construed indicates the consideration by the sanctioning authority of the facts relating to the receiving of the illegal gratification from Pal Singh and therefore the appellant could only be validly tried for that offence. The contention that a trial for two offences requiring sanction is wholly void. where the sanction is granted for one offence and not for the other, is in our opinion unsustainable. Section 6(1) of the Act bars the jurisdiction of the Court to take cognizance of an offence for which previous sanction Is required and has not been given. The pro- secution for offence under S. 5(1) (d) therefore is not barred because the proceedings are not without previous sanction which was validly given for the offence of receiving a bribe from Pal Singh, but the offence of habitually receiving illegal gratification could not be taken cogm

zance of and the prosecution and trial for that offence was void for want of sanction which is a condition precedent for the Courts taking cognizance of the offence alleged to be committed and therefore the High Court has rightly set aside the conviction for that offence."

(I) [1958] S. C. R. 762.

sou: NATI! v. UNION (Jaganmohan Reddy, J.) 157

1'bae cases instead of supporting the contention of the lear A ned Advocate amply demonstrate that the facts which formed -the basis of the sanction and which was accorded after the

mnctioning authority had fully applied its mind to them, should be correlated to the particular offence or offences with which the accused .is charged or convicted.

In our view there is no justification for holding that the con viction under Section S(l)(c) read with 5(2) is bad for want of the requisite sanction.

Now on the merits of the case as we said earlier the learned Advocate for the appellant has referred to the evidence in meticu lous detail and has commented thereon at length but this Court ordinarily does not reappreciate the evidence with a view to arriving at its own finding as if it was a Court of fact and does not ordinarily upset the findings of the High Court which has on an evaluation of the evidence affirmed the trial court's conviction and sentenre. It has been contended firstly that the High Court was in error in relying on certain evidence for convicting the accused which was not put to him. Secondly the evidence that was necessary to unfold the story of the prosecution has not been produced by the prosecution but the Trial Court and the High Court ignored this lacuna in the prosecution case. Thirdly the Judgments show that there was utter confusion in respect of the date on which possession of the acquired land was given to the Appellant and the date on which it was given to the Contractor for carrying on the work, as also in respect of the fact whether there was any crop standing when the Appellant took possession Qf the land and at what period of time the crop was cut and the work commenced.

Before we deal with the contentions urged on behalf of the Appellant it is necessary to have a clear picture of certain broad features of the case. The Air strip which was being extended is in one straight line with Taxi-ways.

P.W.14 Ranadive tells us that if one were to go from the entrance of Air Field to the acquired land one would have to pass through RD 4500 to 1200.

The acquired land extended from RD 1200 to RD 00. Accord ing to P.W. 8 Telu Ram, he acquired possession of the land of the length from RD 4500 to RD 1200 on 10th January 1963 and that the possession of the acquired land was not delivered to him as it had not been acquired by that time. Ex. DQ review report which is headed Technical Administration Contract shows that the date of review was 9th February 1963. In this document the date of the conclusion of the contract is given as 3rd December'62 and date of commencement of work as 10th January'63, date of completion of 1st phase 9th October '63 and second phase 9th

SUPRBMB COURT REPORTS [1971] SUPP. s.c.R.

May 1964. To the Question "Have all sites been handed over on due date" the answer shown was an affirmative 'yes'. There is however nothing in this doument to show what is the site of which possession was handed over to and taken by Telu Ram on

10th January '63. It is not the case of the Appellant that acquisition of the land on which the crop was standing had taken place nor could possession of it been handed over to him because he denies that there was any crop on the land when the possession of the land was handed over to him. That there was crop on the land is amply born out by a letter of the Appellant dated 12th Febru ary 1963 addressed to Mr. G. L. Nagpal, Sub-Divisional Magistrate, Sirsa. In this letter he says:-

"12th Feb. 1963.

My dear Mr. Nagpal,

I am writing to you with regard to acquisition of land for Sirsa Airfield.

As you know, the Additional Deputy Commissioner Hissar will e visiting this location on 13th Feb. 1963. The Military Estates Officer, Delhi, Mr. K. K. Gamkhar will also be here on 13th morning._ It is desirable that entire proceedings with regard to acquisition of land and determining compensation for standing crops for the total area of 39.58 acres in Mirpur and Ahmadpur villages are finalised on this date. As I have told you personally, we are keen to finalise the proceedings for the total area to be acquired by us and not by phases. This is in the interest of the project. I therefore request you to Issue suitable instructions to your staff so that all the relevant papers may be suitably prepared."

Even If Exhibit DO gave a correct picture, it could be in relation to the airstrip already in existence, as this would be necesiary for a contractor who is charged with duty to carry out extension work to go on the site collect materials and get everything ready to execute his contract. In fact as we have noticed earlier this is what Telu Ram says in his evidence, namely that on 10th January'63 no delivery of possession of the remaining land other than RD 4500 to 1200 (the land in which there is the existing

run-way) was given. It was then that he wrote on 23-1-1963 as per Ex. 8 to the Assistant Garrison Engineer complainin!l that the possession of ti?e hole of the land had no! been d~Uvered him. A copy of this letter was sent to. the Garrison Engmeer-the Appellant. This letter shows two thmgs (a) that complete liW _.SOO to 0 ft. has not yet been handed over "is it was presumed

SOM NATH v. UNION (Jaganmohan Reddy, J.)

that the possession of the land could not he had so far" and (b) that as levels have not been given, the final excavation of the foundation cannot be done and all subsequent operations are therefore withheld.

This letter clearly indicates that some excavation was being done as otherwise there is no meaning in saying that final exca vation cannot be done. This Is also consistent with the other evidence that some work was in progress which again is in accord with the evidence of Telu Ram P.W .. 8 that he got the possession of RD 4500 to RD 1200. The extension of the Airstrip would mean that the existing Airstrip is being extended, so that the initial work can be started and continued on the existing Airstrip. It is not as if the existing Airstrip ends at the boundary of RD 4500 to RD

1200, so that the work of extension can go on in the existing Air strip even before possession of the acquired land was given. This is further confirmed by a perusal of the letter written by the Appellant to Telu Ram P.W. 8 in reply to his Jetter dated 28th February'63 (not produced) that "Necessary possession of the runway and taxi track has already been given to you. You are therefore requested to set out the work and get the same approved by the Engineer-in-charge before starting the work".

This shows that no work had in fact been undertaken on the land acquired and also that possession of the existing runway and track had already been given.

Nothing is specifically mentioned about possession . of the acquired land being given to him on that. date. The work on that land is only at the stage of getting approval.

Now the next question is when was the possession of the acquired land obtained by the Appellant and when did he deliver it to P.W. 8. P.W. 14, says that symbolic possession was delivered to him in respect of the acquired land on the 1st February'63.

It would howver appear from Exh. P. 24 that actual possession was delivered to the Appellant on 13th February '63 as per the delivery receipt executed by him, the Tehsildar and P.W.11, a representative of the Military Estate office and that even accrd ing to his letter already referred to Ex. P.13 there was standing crop on the land as otherwise there is no meaning in the Appellant saying therein that it is desirable that entire proceedigs with regard to acquisition of land and determining compensation for standing crops for the total area of 39.58 acres are finalised on the 13th February.

There is also <:redible evidence that possession of. the acquired land was not handed over to the contractor till late ill March '63 though it was handed over to and taken over by the Appellant on 13-2-63 .. The Khasra Girdawari. Ex. P.3 would show that there was a crop of Sarson (Mustard), Gram and Lusan, at any rate on

85&

SUPREME COURT REPORTS [1971] SUPP. s.c.R.

20th March '63 at a time when the land has been shown therein to have been in possession of the Military authorities.

Ex.

P. 2 is a certified copy by the Tehsildar dated 18-9-63 which shows that as per the Girdawari on 20-3-63 crops were standing on the lands in the village Ahmedpur acquired by the Military authorities for Sirsa Airfield construction, the details of which were that the total land acquired for Airfield 49 acres, the land on which crops were standing in good condition 23 acres and the land on which crops were standing in damaged condition 7 acres and uncultivated land 19 acres.

Mani Ram Patwari had stated that by the 20th March 1963 some ground had been cleared. Sukhchain Lal Jain P.W. 11 who had also come to obtain possession on behalf of the Military Estate Officer had said that he had seen some part of the crops had been cut by 13-2-1963, but was not aware who had cut them.

This evidence, however, does not assist the accused. At the most it shows that a small portion of the crops were cut but it is apparent that that has not been taken into account by the Collector in assessing the value of the crop because it iS on that day that crops were inspected for that purpose and subsequently the Agricultural Officer also had in his letter dated 18-2-63, which has been cited in the award Ex. P. 26 intimated that on inspection the crops were found to be very good. He had also given the approximate yield and the rate at which the crop can be valued with which the Collector agreed and awarded compensation. It is therefore clear that in estimating the crop, the small portion of the land where crops were stated to have been cut by the 13-2-63 even if true could not have been taken Into account. It may also be stated that the Contractor had written to the Garrison Engineer on 28-2-63 requesting him to hand over immediately the possession of the remaining portion of the land so that excavation work is not held up. He also informs in that letter that the excavation in all available portions of the taxi track and runway has been completed. This again does not specifically refer to the land which is being acquired. At any rate on the 23rd March, 1963 P.W. 8 has again written to the Garrison Engineer namely the Appellant that the excavation of the taxi track could not be proceeded with for want of alignment to be given whkh was pending for want (because) of standing crops, in the land, the possession of which has not been given so far.

Thereafter the following pertinent statement appears namely-

"Now, today I find that the crops have been completely cut and as such it is requested that further necessary action in the matter of giving the alignment and possession of land may please be taken at your end." •

SOM NATH v. UNION (Jaganmohan Reddy. J.) 861

On the 6th April, 1963 he has again written to the Garrison A > Engineer saying as follows :-

"You have verbally asked me now to take the site after the crop is cut and the necessary marking of the alignment has been taken in hand but this handing over has not been shown on the site order book by the A.G.E.

(BIR) despite my request.

He may please be asked to complete this formality without any loss of time."

In reply the Appellant states in hls letter Ex. P. 12 dated the

10th April "The matter has already been discussed with you and finalised. No further action Is required to be taken".

It can be seen from the above that the appellant is reluctant to reply in writing as to what he is asking the contractor to do under verbal orders while the contractor for safeguarding his position is insisting on having it in writing.

The Trial Court as well as the High Court are in our view, justified in holding that crops of Sarson, gram and lusan were standing on the land acquired by the Military for extension of the Aerodrome. It will also justify the conclusion that they were there at any rate till the 20th March 1963 and according to the letter of the contractor (J'. W. 8) on 23-3-63 they were completely cut. In so far as handing over of the possession of the land to the Contractor (P.W. 8) is concerned, the Trial Court and the High Court are equally justified in coming to the conclusion that the accused had not delivered the possession of the land to the contractor till quite late as would appear from the letter of P.W. 8 dated the 5th April, 1963.

We are aware of the argument addressed before us that some of the witnesses had said that the water channels had been closed in Febiiiary 1963 and therefore no crop could thereafter have been standing on the land and must have been destroyed.

There is also the further argument that some of the statements recorded by the Military authorities were not taken into account, as the High Court had thought that since the deponents denied the contents the officers who recorded the statement might have been called to show that they were properly recorded.

The learned advocate for the respondent also tried to support the stand taken by the High Court. It is true that when a witness has admitted having signed his previous statements that is enough to prove that some statement of his was recorded and he had appen ded his signature thereto. The only question is, what use can be made of such statements even where the witness admits having signed the statements made before the Military Authorities. They

$62

SUPREME COURT REPORTS [1971] SUPP. s.c.R.

can at best be used to contradict in tbe cross-examination of such a witness when be gives evidence at the Trial Court of tbe accuied in the manner provided under Section 145 of the Evidence Act.

If it is intended to contradict the witness by tbe writing, the atten tion of the witness should be called before the writing can be proved to those parts of it which are to be used for the purpose of contradicting him. If this is not done, the evidence of the witnesses cannot be assailed in respect of those statements by merely proving that the witness had signed the document. When the witnesses are contradicted by their previous statements in the manner aforesaid, then that part of the statements which has been put to the witness will be considered along with the evidence to assess the worth of the witness in determining his veracity.

The whole of the previous statement however cannot be treated as substantive evidence.

We do not find that tbe assessment of the evidence by the Trial Court and the High Court even in the light of such of those previous statements that have been put to the witnesses in the manner stated above is in any way unjustified.

It is said that some of the documents i.e. Ex. 8, IO and 11 have not been put to the witnesses even though the Court relied upon them. Ex. P.8 as already noticed is the letter of Telu Ram Jain to the Assistant Garrison Engineer and P. IO is the letter of Telu Ram Jain to to the Garrison Engineer.

Both these related to possession of the acquired land not being given to him. In the examination of the accused under Section 342 the Special Judge in our view did put all the circumstances against the accused which formed the basis of the conviction. He was asked about the symbolic deli very of possession, the handing over of the actual possession of the land on 13-2-63 and the existence of crops on the date when posses sion was delivered on 16-2-63. He was asked about Telu Ram's evidence and also that he had given possession of the land RD 1200 to RD 00 to the contractor after the crop had been cut. The letter Ex. P. 13 was also put to him and he was asked about the existence of the crops. It cannot, therefore be said that circum

stances appearing against the accused which have formed the basis of the conviction had not been put to him. The appellant has denied that there was any standing crop on the land acquired on any date after 13-2-63. On tbe other hand, he emphatically asser ted that at the time when the possession was delivered to him on 13-2-63 there was also no crops standing on the acqnired land.

This statement is clearly false as it Is against credible documen tary evidence at a time when there was no possibility of any charge being levied against the appellant. It is also incorrect because the contractor did not work on the acquired land since 1-2-63 that position is reflected in the review report initiated by the A.G.E. on 9-2-63 (vide Ex. DQ). The appellant's statement is therefore

IOM NATH .. UNION(Jaganmohan Reddy, J.)

belied by the documentary evidence which shows unmistakably that there was on 13·2 63 bumper crops of different varieties standing on the land which was valued thereafter and compensation assessed. We do not, therefore, think that there is any justi fication in the criticism .that the circumstances appearing in the several documents have not been put to him.

It is lastly contended that certain witnesses who would be necessary to unfold the prosecution story have not been called and in spite of the Court directing the production of the usufruct register it was not produced. These omissions it is submitted by the learned advocate has prejudiced the accused. As the learned advocate for the respondent rightly pointed out with reference to each one of the persons who, it was claimed, should have been called, that there was already evidence relating to the particular matter about which the person specified was sought to be called.

For instance, it is said that Gamkhar, Military Estate officer was not produced to prove the receipt Ex. P. 24. But this was not necessary because Gamkhar was not present nor did he sign the receipt.

The person who had signed tbe receipt is Sukhchain Lal. Jain and he was examined as P.W. 11. Similarly, it is said that the Tehsildar N. L. Handa has not been produced. But when the prosecution relies upon the proof of Ex. P. 24 as also to establish that there was standing crops on the land when the possession was delivered on 13·2·63 on certain witnesses who were present on the respective occasions, the non-examination of other witnesses without anything more cannot be treated as defect in the prosecution. Before the High Court also this grievance was aired but that Court also likewise found no justification in it. We are therefore not impressed with this argument. On a careful considerathn of the evidence both oral and documentary it is established that the Appellant who was in charge of the expansion work on the air-strip was given possession of the land acquired for that purpose on 13-2-63, that there was standing thereon, a bumper crop of Sarson, gram and Lusan on that day, that he was therefore entrusted with this crop, that he postponed giving delivery of the land to the contractor till, at any rate after the 23rd March, 1963 and before the 6th April, 1963 and that he allowed the crop to be cut and taken away without in any way accounting for it which shows that it was done dishonestly and

SUPREHB COUllT Rl!PORTS [1971] SUPP.1.c.:1..

fraudulently. The fact that notwithstanding overwMlming evid ence particularly of his own ll<h¢ssion at the time he denies that there were ever any crops when delivecy of possession of the land acquired was taken: by him, further reinforces the conclusion that he allowed the crops to be cut away with disbonest oc fraudulent motive. We do not think in these circumstances there is any

jusllficalion whatever for interfering with the concurrent findinp of the Trial Court and the High Court that the Appellant is guilty of an offence under Section S(l){c) read with Section 5(2) of the Prevention of Corruption Act and consequently the appeal ia dismissed

Y:P.S.

NAm

UNION OF INDIA & ANR

REDDY

s. 5(1)

s. 5

Prevention of Corruption Act, 1947

s. 5(1)

s. 5(1)(c)

Section 5(l)(c)

Prevention of Corruption Act 1947

Section 4

Land Acquisition Act 1884

Section 6

Section 17

Section 5(1)(d)

Section 5(2)

Prevention of Corruption Act 1947

Prevention of Corruption Act

Section 5(2)

Section 5(1)(c)

Prevention of Corruption Act

Section 5(2)

Section 342

Section 5(l)(c)

Section 5(1)

Section 5(!)(c)

Prevention of Corruption Act

Section 5(2)

Prevention of Corruption Act

Section 5(1)

I.P.C

Section 197

Code of Criminal Procedure

Section 6(!)(a)

Prevention of Corruption Act, 1947

Section 5(2)

Section 5(1)(c) and 5(1)(d)

Section 5(2)

Section 5(1)(c)

Section 5(l)(c)

Section 5(1)(c)

Section 5(1)

Section 409

I.P.C

Section 409

I.P.C

Section 5(l)(c)

cl. 23

Section 6

Prevention of Corruption Act

Section 5

Section 5(1)(d)

Section 5(1)(d)

Section 6(1)

S. 5(1)

Section 145

Section 342

Section 5(2)

Prevention of Corruption Act


MfS. VOLTAS LTD.

J. M. DEMELLO & ANR.

July 21, 1971

[J. M. SHELAT AND A N. RAY, JJ.] B

Industrial Disputes Act, 1947, ss. 33C(2)-Labour Court as executing court whether can go into history of dispute in order to construe scop~ of award.

Constitution of ITtdia; Art. 226-High Courts cannot interfere when order of labour court under s. 33C(2) of Industrial Disputes Act, 1947 is

within its jurisdiction and does not suffer from any apperent error.

Respondent No. I joined the service of M/s. Volkhart Bros. on March 3, 1930.

On the merger of that concern with the appellantcompany in Septemloer 1954, he became the employee of the latter. In September 1954, the appellant-company took over the staff of MI s. Volkhart Bros. on the same terms and conditions as were applicable to them when they were the employees of Yolkhart Bros. During the period when respondent I was in D the employment of M /s. Volkbart Bros. he was governed by a scheme of dearness allowance framed with the consent of the parties and incorporated in the Bakhale Award dated May 26, 1951. The scheme provided bvth

maximum and minimum dearness allowance viz. Rs. 165 and Rs. 60 respectively, and subject to them the dearness allowance payable was 75% for the first hundred, 37!% for the second hundred and 18% for the oalance of the wages. By a circular dated November 16, 19S3 the maximum dearness allowance Jlayable was increased to Rs. 300, On August 18, 1956 a E charter of demands was served on the company on 'behalf of the workmen. Demand No. S was for revision of the scheme of dearness allowance_ The parties arrived at a settlement dated August 30, !9S7 under which the company agrd to pay dearness allowance at increased rates, theminimum being raised to Rs. 75. There was no reference as to the maxi· mum either in demand No. S or in the settlement. According to the com .. pany the maximum was raised from Rs, 300 to Rs. 3SO by a circular dated

Marcltl2, 19S9. On January 16, 1961, !he union served the c:Ompany wit!

F a fresh charter of demands, demand No. 9 whereof related to dearnes• allowance. Higher rates were demanded but there was no reference to a maximum, The charter of deml\nds was referred to the tribunal presided over by Mr. Meher whose award dated February 18, 1963 made certain changes in the scheme without referring to a maximum. On December 17, 1964 respond~! No. I filed an application to the Labour Court under s. 33C(2) for computing the benefit due to him in respect of dearness allow- G anco payable to him. His claim for dearness allowance of more than RL

3SO was resisted by the company on the ground that that was the maximum fixed under the earlier scheme which continued to subsist since the Moher Award had not made any change in this respect. The Labour Court after &oing into the full history of the matter, since tho llakhalo Award, decided !hat the company was right in limiting the dearness allowance to Rs.' 3SO. The High Court in a writ petition filed by respondent No. I held that Labour Court fell into a grosa error in examining the pre- H vious history as to th• dearness allowance which was irrelevant. It directed the Labour Court to compute the dearness allowance without any reference to tho maximum. In the company's appeal by special leave,

55-1 S.O.India/71

SUPREME COURT REPORTS [ 1971] SUPP. s.c.R

HELD: Proceedings under s. 33C(2) are analogous to execution proceedings and a Labour Coun called upon to compute benefits claimed by a worman is in the position of an executing court and as sach competent to mterpret an award where there is a dispute as to the rights there. under or as. t? its correct interpretation. Although it cannot go behind the award, 1t ts nevertheless competent to construe the award where it is _ambiguous and to ascertain its precise meaning, for unless that is done, 1t cannot enforce the award when it is called upon to do so by an application under s. 33C. [874A-C]

Chief Mining Engineer, East India Coal Co. Ltd. v. Raffteshwar, [1968] I S.C.R. 140, Central Bank of India v. Rajagopalan, [1%4) 3 S.C.R. 140, 152 and Bombay Gas Co. Ltd. v. Gopal Bhiva, (1964) 3 S.C.R. 709, 715- 716, referred to.

In th• present case the Labour Court had and was competent to decide the question whether there was a ceiling in the existing scheme_

and if so, whether it was deleted by the Tribunal, in other words, whether the demand was for doing away with the existing scheme and substituting it by a fresh scheme which bad no ceiling. For that purpose, the Labour Court had necessarily to examine demand No. 9, the reference, the pleadings of the parties, and lastly, the Moher Award, and incidental to such an inquiry it had to examine the question whether there was a ceiling io the scheme existing at the time of that demand and reference.

In doing so the Labour Coun had to examine the various stages the dearness allowance scheme bad from time to time gone through. [876H]

Ramakrishna Ramnath v. Presiding Officer, Labo11r Court, Nagpur, [1970) 2 L.L.J. 306, referred to.

[The Court examined the facts and found the Labour Court's conclusions justified on merits. It then went on to bold : ] If from the evidence before it the Labour Court came to tile conclusion that a ceiling existed in the scheme of dearness allowance prevail .. ing in the company at all the various stages and that deletion of such a ceiling was not the subject matter of either demand No. 9 or of the refernce before the Meher Tribunal, and that its award was confined to the revision only of the existing scheme in respect of certain matters, it was not possible to say that the decision of the Labour Court suffered from any error apparent on the face of its decision in respect of which a certiorari could Justifiably be issued under Art. 226.

There was no question of any estoppel also against the company against its raising the question of the ceiling in view of the finding of the Labour Court that the question of the ceiling was not the subject-matter of the reference before the Meber Tribunal. Such a conclusion of the Labour Coun could not be interfered with by the High Coun on any one of the well known grounds on which only such interference is permissible. [878A]

Syed Yakoob v. K. S. Radhakrishnan, [1964] 5 S.C.R. 64, referred to.

The appeal must accordingly be allowed.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 478 of 1970.

Appeal by special leave from the judgment and order dated June 30, 1969 of the Bombay High Court in Special Civil Application No. 889 of 1966.

VOLTAS v. J.M. DEMELLO (Sht/at, J.) 867

S. V. Gupte, A. K. Verma and J.B. Dadachanji, for the appel- A !ant.

V. M. Tarkunde, D. V. Patel, K. L. Hathi and P. C. Kapoor, for respondent No. I.

The Judgment of the Court was delivered by

Shelat J.-This appeal, by special leave, is against the judgment of the High Court of Bombay allowing the writ petition

filed by respondent 1 against the dismissal by the Labour Court of his application for dearness allowance made against the appellant-company under s. 33C(2) of the Industrial Disputes Act, 1947.

The facts leading to the said application are as follows :-

Respondent 1 first joined the service of MI s. Volkart Bros. on March 3, 1930. On merger of that concern with the appellantcompany in September 1954, he became the employee of the latter. In September 1954, the appellant-company took over the staff of MI s. Volkart Bros. on the same terms and conditions as were applicable to them when they were the employees of Volkart Bros. During the period when respondent 1 was in the employment of Mis. Volkart Bros., he was governed by a scheme of .Dearness Allowance framed with the consent of the parties and incorporated in an award (hereinafter referred to as the Bakhale Award) dated May 26, 1951 in l.T. No. 76 of 1950. The scheme provided both maximum and minimum dearness allowance, viz., Rs. 165 and Rs. 60 respectively, and subject to them the dearness allowance payable was 75% for the first hundred, 37!-% for the

secnd hundred and 18 % for the balance of the wages.

The said scheme was altered by a circular, dated November 16, 1953. The two principal changes in the altered scheme were:

(!) an increase in the minimum and maximum from Rs. 60

and Rs. 165 to Rs. 70 and Rs. 300 per month respec- tively, and

(2) linking the dearness allowance to the cost of living index in the bracket 371-380 and providing for adjustment of dearness allowance by certain percentages whenever the index moved by ten points.

011 August 18, 1956, a charter of demands was served on the company on behalf of the workmen. Demand No. 5 related to dearness allowance and was as follows:

"The scheme of dearness allowance at present in force should be revised on the folloWing lines with effect from !st January, 1956."

SUPREME COUl.T REPORTS [1971] SUPP. s.c.R.

Then followed the lines on which the scheme was sought to be revised, namely, the percentages at which the dearness allowance should be paid. The parties arrived at a settlement dated August

30. 1957, under whi.ch the company agreed to pay dearness allowance at 100% on the first hundred with 4% on every ten points' movement in the index, 50 % on the second hundred V'lith 2 % on every ten points' movement in the index and 25 % for the balance with I% on every ten points' movement in the index of cost of living. The minimum dearness allowance was raised to Rs. 75.

It may be noted that there was no reference as to the maximum either in demand No. 5 or in the settlement. The case of respondent I was that the scheme of dearness allowance as prevalent till then was abandoned, a fresh scheme was devised in which there was no provision for any maximum and it was, therefore, that no reference to any such maximum was made in the settlement.

The company's case, on the other hand, was that the scheme of dearness allowance was not given up, that the demand was only for revision of the existing scheme, viz., to the extent of revising the percentages only on the three slabs of wages, and therefore, the settlement mentioned the alterations made in the scheme, but not the maximum as there was neither a demand for its deletion, and consequently, no settlement regarding it. .

According to the company, the maximum was raised from Rs. 300 to Rs. 350 by a circular, dated March 12, 1959. That circular was as follows :

"It has been decided to raise the present maximum Dearness Allowance payable to Rs. 350 per month which will apply uniformly to all Offices in India with effect from !st April 1959.

Dearness Allowance will continue to be paid on the usual basis at the rates applicable at each place subject to the maximum stated above.

• • • • . ..

The case, however, of respondent I was that the Increase in the maximum amount of dearness allowance applied only to tile officers of the company and not to the workmen, that no notice of such a change was ever served upon the union, and that there was in fact no change made in 1959 in the scheme of dearness allowance, which remained without any provision as to the maJiimwn.

VOLTAS v. ], M. DEMELLO (She/at, J.)

On January 16, 1961, the union served the company with a fresh charter of demands, demand No. <f Whereof related to dearness allowance. That demand was in the following wo¢s :

"The scheme of Dearness Allowance at present in force should be revised on the following lines with effect from 1st October 1960 :-

When the index is in the bracket

351-360,

for the 1st Rs. 100 of the basic pay/wages ................................. 100%; variation 5 %

for the 2nd Rs. 100 of the basic pay /wages .. .. .. .. .. .. .... .. .. .. .. .... .... .. .. 50% ; variation 2! %

for the balance .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 25 % ; variation 1!%

Minimum Rs. 90; variation Rs. 3." D

The charter of demands was , referred to the tribunal presided over by Mr. Meher who gave his award (hereinafter referred to as the Meher Award), dated February 18, 1963. Paras 33 to 35 of the award dealt w'ith dearness allowance. Para 33 first set out the union's complaint that "the existing dearness allowance E scheme" did not adequately neutralise the rise in the cost of living. It then set out the existing scheme as follows :

Bac; ic wage

For the first JOO .

For the second I 00.

For the balance

"For the index number 371-380

Dearness allowance

100%

50% 25%

Variation for IO points

4% 2% 1%

Minimum dearness allowance Rs. 75~ variation for 10 points Rs. 2." .

Para 34 set out the company's defence. Para 35 set out the changes made by the award in the following terms :

"I revise l!he existing scheme of dearness allowance

as follows :- H

The variation for the first slab should be 5 per cent, for the second 2! per cent, and the third Ii per cent, and

I I

SUPREME COURT REPORTS [1971] SUPP. s.c.R.

on the minimum dearness allowance Rs. 3. The mini mum dearness allowance at cost of living index 371-380 should be increased from Rs. 75 to Rs. 77. The dearness allowance should be revised at this rate from !st June 1962 ...... "

On December 17, 1964, respondent I filed an application to the Labour Court under s. 33 C(2) for computing the benefit due to him in respect of dearness allowance payable to him under the Meher Award and claimed that the dearness allowance due to him was Rs. 360 for June-July, 1964, Rs. 382.50P. for August 1964, Rs. 393.75P. for September-October, 1964 and Rs. 405 for November 1964 in accordance with the index of cost of living declared by the Maharashtra Government on the recommenda lions made by the Lakdawala Committee. His plea was that the company was not entitled to limit the dearness allowance due to him at Rs. 365 per month on the plea that the existing dearness scheme as revised by the Meher Award provided for the maximum at Rs. 365 per month and that he was, therefore, entitled to that amount only.

The claim of respondent I was denied by the company. The company's case was that under the scheme of dearness allowance prevailing in the company there had always been a maximum ever since the Bakhale Award, that that' maximum was raised from time to time and since April I. 1959 it had been Rs. 350 per month. Its case further was that the maximum was not in any way affected by the Meher Award, that the charter of demands which occasioned that Reference claimed revision of the existing dearness allowance scheme on certain points only. namely, a revision in the percentage variations and an increase in the mini mum from Rs. 7 5 to Rs. 90, and that therefore, the rest of the scheme including its provision for the maximum of Rs. 350 per month remained intact. The company's case was that since the demand and the reference were limited to the percentage variations only, the Meher Tribunal could not have made any other changes, such as the deletion of the maximum, for. such a change would have been beyond its jurisdiction.

The question, thus, before the Labour Court was : what exactly' did the Meher Award decide in relation to the question of dear ness allowance? There can be no doubt that there was an acute controversy between the parties :

(I) as to whether there was or not any provision for the maximum in the scheme prevailing before the Meher Award,

(2) if there was, whether that Award only revised it in terms of para 35 thereof or whether it introduced

VOLTAS '"J.M. DEllELLO (She/at, J.)

altogether a fresh scheme which had a provision for the minimum but not for the maXimum.

In dealing with these questions, the Labour Court, in an elaborate judgment, went, into the history of the dearness allowance scheme prevailing in the company ever since the Bakhale Award on the basis of the evidence led by both the parties and ultimately held that a maximum was always provided for in the said scheme, that the scheme which was prevailing immediately before the Meher Award contained a provision for such maximum, viz., Rs. 350, that the Meher Award was concerned only with the percentage variations and the increase In the minimum existing till then and as neither the demand nor the reference was concerned with the maximum, the award did not and indeed could not deal with it and therefore left it untouched. In the result, the Labour Court dismissed the application holding that the company was right in paying dearness allowance at Rs. 350 per month to respondent I.

Respondent I, thereupon, filed a writ petition in the High Court contending :

(!) that the Labour Court, as an executing court, had merely to implement the Meher Award which had fixed no maximum; that it exceeded its jurisdiction when it considered the previous stages of the scheme of dearness allowance and the background for holding that the award had not dealt with or 'interfered with the existing maximum; ·

(2) that as regards the workmen, no maximum dearness allowance had been prevalent at the time of the charter of demands datd January 16.1961, that demand No. 9 therein was for the entire revision of the scheme which was then prevalent in the company and that the Meher Tribunal made its award providing therein an altogether new scheme.

The company, on the other hand, contended that the Labour Court had jur.isdication, when called upon to compute the benefits under the award, to interpret that award in order to ascertain what it had done and the benefits it had conferred. In doing so, if It came to findings of fact, those findings could not be interfered with by the High Court under its writ jurisdiction. It also submit ted that in any event on a true construction of the award read with demand No. 9, the reference and the pleadings of the parties, the conclusion of the Labour Court that the Meher award did not deal or Interfere with the existing maximum was correct.

SUPREME COURT .REPORTS [1971] SUPP. s.c.R.

In considering these rival contentions the High Court first set out the five stages of development which had occurred in the history of the company in the matt1:r of dearness allowance and which had been considered by the Labour Court, viz.,

(!) the Bakhale Award, d'ated May 26, 1951, the features whereof were :

(i) a provision for the maximum and the minium,

(iiD percentages of neutralisation on three slab& in the wages ;

(2) the circular of November 16, 1953 by which dearness allowance was linked with the index of cost of living, the basic bracket of which was 371-380, the adjustment of the dearness allowance on the movement of the index by IO points, and the maximum raised to Rs. 300 per month;

(3) the charter of demandi: dated 18-8-1956 and the agreement, dated August 13, 1957 by which the existing scheme was revised and the minimum and the percentages of variations were revised ;

(4) the circular, dated March 12, 1959, by which the maximum was again raised from Rs. 300 to Rs. 350 and which inter alia stated:

(i) that the increase would apply unWormly "to all offices in India", and

(ii) that dearness allowance "will continue to be paid on usual basis at the rates applicable at each place subject to the maximum stated above." and

(5) the charter of demands and in particular demand No. 9 and the Meher Award.

The High Court then observed that the charter of demands, the Reference to the Tribunal of Demand No. 9 and the pleadings before the Tribunal did not refer to any existing maximum and that according to the award the existing scheme of dearness allowance was that which the Tribunal set out in para 33 of its award, i.e., without any maximum being there mentioned and that it was such a scheme which the award revised. Relying on the absence of any reference to any maximum, the High Court negatived the company's contention that th1! demand was for alteration of the existing scheme only. That being so, the company, accord ing to the High Court, ought to have brought forward as its defence case that there was an existing maximum, which should be retained in the scheme, and not having done so, the company "must

l '

VOLTAS v. J.M. DEMELLO (Shelat, J.)

be held to be estopped now from contending that this matter had not arisen before the Tribunal and had accordingly not been decided." The High Court also rejected the company's plea that a demand for revision of the scheme meant not its total abolition and substitution of another scheme in its place and held that such a demand would ordinarily mean that the scheme in its entirety was to be replaced by another scheme and that what the .award in fact had done was to frame "a complete and entire

scheme". The High Court thought that to accept the company's plea that the existing maximum was not touched upon by the award meant reading a proviso in the award that the maximum dearness allowance payable to a workman was Rs. 350 per month, a con strucfion not permissible in the absence of reference to such a maximum in tlie award. The High Court also held that the award had "to be construed without 'reference to the previous history and facts on which the Labour Court relied", that it was not permissible for the Labour Court to rely on such facts, and that even if it was so permissible it would have come to the same -conclusion, viz., that the scheme was not qualified by any maxi

mum. On this reasoning the High Court set aside the Labour Court's order basing its interference with that order on the ground that the Labour Court fell into a gross error in examining the previous history as to the dearness allowance, which was irrele vant, thereby deeiding the .matter in a manner "which was altogether erroneous and unjustified'', and directed the Labour Court to compute the 'dearness allowance without any reference to the maximum.

These conclusions were seriously challenged before us. The contention was that the Labour Court in dismissing the application acted within 'its jurisdiction, and that there was no error apparent in its decision justifying the issuance of certiorari. On the other hand, Mr. Tarkunde supported the High Court's order arguing, firstly, that the Labour Court as an executing court under sec. 33C(2) cou1d not consider facts anterior to the reference to the Meher Tribunal for the purpose of interpreting that award, .secondly, that on the construction of that award, as well as the pleadings of the parties before that Tribunal and demand No. 9, the Labour court was in error in holding that a ceiling of Rs. 350 i>ubsisted, and thirqly, that even If the Labour Court could enter into such anterior facts, its construction of the Meher award was patently wrong.

' The question as the scope of jurisdiction of a Labour Cour:t under sec. 33C(2) has been a subject-matter of several decisions d this Court. It is not necessary to go into those deciSions once :again as fo the Chief Mining Enginer, East India Coal Co. Ltd.,

SUPREME COURT REWRTS [1971] SUPP. S.C.Itv. Rameshwar(1) all those decisions were examined and the propositions dedueible from them were formulated.

As stated in propositions (5) and (8), proceedings under sec. 33C(2) are analogous to execution proceedings and a Labour Court called upon to compute benefits claimed by a workmen is in the position of an executing court and as such competent to interpret an award where there is a dispute as to the rights thereunder or as to its correct interpretation. Obviously, if the award is unambiguous, the Labour Court is bound to enforce it, and under the guise of interpreting it, it cannot make a new award by adding to or substractlng anything therefrom. Although it cannot go behind the award, it is nevertheless competent to construe the award where it is ambiguous and to ascertain its precise meaning, for, unless that is done, it cannot enforce the award when it is called upon to do so by an application under Sec. 33C.

As held in The Central Bank of India v. Rajagopalan('), a claim under Sec. 33C (2> postulates that the determination of the question about computing in terms of money may in some c:ases have to be preceded by an inquiry into the existence of the right. Such an inquiry is incidental to the main determination aiisigned to the Labour Court by that sub-section. While inquiring into the question as to the existence of such a right, and construing the award, the Labour Court can look into the demand by the workmen in order to ascertain whether the award under which the right Is claimed was or was not beyond the scope of the dc•marid ; in other words, whether the award was within jurisdiction. (cf. also Bombay Gas Co.

Ltd. v. Gopa/-Bhiva(').) This position was conceded by Mr. Tarkunde.

Demand No. 9, which related to dearness allowance, was that "the scheme of dearness allowanc:e at present in force should be revised on the follow'ing lines ...... ". The lines for revision were, firstly, as to the basic bracket in the index of cost of living.. i.e., 351-360 instead of 371-380, secondly, as to the percentages of variation, and thirdly, as to the raising of the minimum dearness allowance from Rs. 75 to Rs. 90. An argument was raised, both before the High Court and rep-..ated before us, which emphasised !he word 'revise' in the demand for dearness allowance .as against the word 'abolish' in demand No. 2 which was concerned with grades and wage scales. We may not give any undue importance to the use of such a different phraseology in the two demands, for, such demands cannot be expected to have been drafted with meticulous care as to the precise meaning of each of the words therein.

But there is no gain-saying. that demand

(!) [1968] I S. C.R. 140,

<2) [1964] 3 S. C.R. 140, U2.

(3) [1964] 3 S. C.R. 709, 71S-716.

VOLTAS v. J, ),(, DBME'.LO (She/at. J.)

No. 9 did postulate that there was a dearness allowance scheme existing in the company when those demands were served on the company and the workmen felt that it did not adequately neutralise the rise in the cost of living, and therefore, the scheme should be revised as regards the basic bracket, the percentages of variation and the minimum dearness allowance payable under that scheme. This is evident from the contentions of the parties before the Meher Tribunal which noted them by stating that whereas the workmen contended that "the existing dearness allowance scheme" did not adequately neutralise the rise in the cost of living, the company's conten1ion was that "the existing scale is fair", but that the company showed its willingness to "revise" the scheme by accepting the percentagi:s of variation suggested by the workmen provided they did not press their demand for revision of wage scales. It is clear from the award also that that tribunal, in the light of these rival contentions, held that "some revision in the dearness allowance scheme is necessary", and revised it by directing that the percentages in the variation should be 5 % for the first slab, 21% for the second and 11% for the balance and 3 % on the minimum dearness allowance. It raised the minimum from Rs. 75 to Rs. 77, but declined to revise the basic _Qrai; ket in the index of cost of living from the existing 371-380

to'-351-360 demanded by the workmen.

There can, therefore, be no doubt whatsoever that there was an existing scheme of dearness allowance, that workmen felt that it was not satisfactory and wanted its revision in certain particulars, viz.. in the percentages of variation, the basic bracket and the amount of the minimum. In paras 145 to 14 7 of its statement of claim before the Meher Tribunal, the union set out "the existing scheme for dearness allowance", the demand for a revision, viz., in the basic bracket, in the percentages of variation and the minimum, and claimed that "the existing dearness allowance scheme" 'failed to meet its object of neutralising the rise in the cost of living, and also claimed, by citing dearness allowance paid by other companies, that the dearness allowance paid by the company was the lowest. In para 125 of its written statement, the company, on the other hand, pleaded that the existing scheme was fair, having regard to the scales of pay, allowances and other terms and conditions, and said that it was agreeable to have a revised scheme set out therein if the workmen did not press for revising the wage scales. In the revised scheme suggested by it, It adopted the variation percentages demanded by the worKmen, but insisted that the minimum should remain the same, viz., Rs. 75.

No doubt, neither the statement of claim by the union. nor the written statement of the company referred to the maximum and clearly for that reason tlie Tribunal also in its award did not refer to it and concerned itself with the contentions of the parties, (l) as

SUPRE.MJ! COURT Rf'1'0RTS [1971] SUPP. s.c.I!..

to the basic bracket, (2) the percentages of variation and (3) increase in the minimum.

The principal controversy between the parties, as is clear from the opening paragraphs of th•! judgment of the Labour Court, was whether the scheme of dearness allowance, as revised by the Tribunal, contained the ceiling. As already stated, the case of respondent I was that he was entitled to the dearness allowance as set out in his application, that under the award there was no ceiling and that by paying Rs. 350 per month., the company withheld from him the benefit accruing to him under the award. The company, on the other hand, alleged that though the award revised the scheme of dearness allowance as prevailing in the company, it did not affect th.e existing ceiling of Rs. 350, and therefore, there was no question of respondent 1 being deprived of any benefit due to him under the award. Thus, the controversy between the parties before the Labour Court was whether there was a ceiling in the existing scheme, and if so, whether the Meher award did away with that ceiling.

The award, of-course, could not do away with such a ceiling, if it was there, unless demand No. 9 and the Reference to the Meher Tribunal based on that dema.nd contained anything whkh required its deletion, or the demand was for a new scheme of dearness allowance altogether and nqt merely for a revision of the existing scheme. It is true that neither demand No. 9 nor the Reference, nor the company's written statement before the Tribunal expressly mentioned the ceiling of Rs. 350 per month. But the company's case before the Labour Court clearly was that there did exist in the prevailing scheme such a ceiling, that it was not mentioned in its reply before the Tribunal because demand No. 9 raised no controversy about it, nor did it call upon the Tribunal to delete it and that the controversy between the parties in that Reference related only to the question as to the basic bracket, percentages of variation and the increase in the minimum.

Upon such a case being before the Labour Court, that court had to and was competent to decide the question whether there was a ceiling in the existing scheme, and if so, whether it was deleted by the Tribunal, in other words, whether the demand was for doing away with the existing scheme and substituting it by a fresh scheme which had no ceiling. For that purpose, the Labour Court had necessarily to examine demand No. 9, the Reference, the pleadings of the parties, and lastly, the Meher Award, and incidental to such an inquiry it had to examine the question whether there was a ceiling in the scheme existing at the time of that demand and referenc, e. (See in this connection Ramkrlshna Ramanath v. The Presiding Of/leer. Labour Court,

VOLTA$ v. J. M. P~MILLO (She/at, J.) 877

Nagpur (').) In doing so, the Labo~ Court had to examine the various stages the dearness allowance scheme had from time to time gone through.

Admittedly, the Bakhale award did contain the maximum.

That scheme was revised by the circular, dated November 16, 1953, by which the dearness allowance was linked, with the cost of living and the maximum was raised from Rs. 165 to Rs. 300. That award was terminated and a fresh demand in respect of dearness allowance was made on August 18, 1956. The demand was that the scheme of dearness allowance "at present in force should be revised on the following lines ...... " The demand resulted in the

settlement, dated August 30, 1957. Neither the demand nor the settlement contained any reference to the maximum of Rs. 300 although it did exist in the existing scheme. The case of respon dent 1 was that the said settlement did away with such a maximum and that from 1957 onwards there was no ceiling at all. This case was seriously controverted by the company which produced before the Labour Court the circular, dated March 12, 1959, by which it said that the maximum was raised from Rs. 300 to Rs.

350 with effect from April l, 1959. The case of respondent 1 with regard to this contention of the company was (1) that no such circular was issued, at least to the knowledge of the union, and

(2) that even if it was issued, it was confined to the officers of the company and did .not apply to workmen. The Labour Court held that the circular was issued and that its interpretation by respon dent I that it applied to officers alone was not correct. The circu lar was issued to "all officers" of the company. It applied to all the employees of the company as is evident from its para 2 which stated as follows :

"Dearness allowance will continue to be paid on usual basis at the rates applicable at each place subject to the maximum stated above."

It also stated that it superseded all other previous circulars. If this circular was issued, as the Labour Court held it was, there can be no doubt that (1) there was a ceiling in the scheme prevalent at that time, (2) that it was raised to Rs. 350 and (3) that it applied to all the employees and not merely to the officers. The G Labour Court also accepted the company's case that the circular was notified on the notice board of the company and that that amounted to a notice of a change under sec. 9A of the Industrial Disputes Act. In any event, the change did not adversely affect the workmen. Nor was the question as to its validity before the Labour Court, which used the circular as evidence of a ceiling H existing in the scheme right from the time of the Bakhale award.

(I) {1970] 2 L. L. J. 306.

SUPRBKB COURT IU!PORTS [1971] SUPP. s.c.a.

If from all this evidence before it the Labour Court came to the conclusion that a ceiling existed in the scheme of dearness allowance prevailing in the company at all the various stages and that deletion of such a ceiling was not the subject-matter of either demand No. 9 or of the reference bo:fore the Meher Tribunal, and that its award was confined to thi: revision only of the existing scheme in the three matters earlier referred to, it is not possible to say that the decision of the Labour Court suffered from an error apparent on the face of its decision iin respect of which a certiorari can justifiably be issued under Art. 226. The confines of jurisdiction under Art. 226 have been settled by a series of decisions of this Court, from among which we need mention only the case of Syed Yako0b v. K. S. Radhakrishnan('). There was no question of any estoppel also against the company against its raising the question of the ceiling in view of the finding by the Labour Court that the question of the ceiling wru: not the subject-matter of the reference before the Meher Tribunal. Such a conclusion of the Labour Court could not be interfered with by the High Court on any one of the well-known grounds on which only such interference is permissible.

The High Court, therefore, was not justified in interfering with the Labour Court's order under its writ jurisdiction. The appeal has, therefore, to be allowed, and lhe writ petition of respondent

I dismissed. In the circumstances Of the case, however. we think it just toot there should be no order as to costs.

G.C.

Appeal allowed.

(I) [1964] S S. C. R. 64.

MfS. VOLTAS LTD

J. M. DEMELLO & ANR

M. SHELAT

A N. RAY, JJ.

Industrial Disputes Act, 1947

ss. 33C(2)

Art. 226

s. 33C(2)

Industrial Disputes Act, 1947

s. 33C(2)

s. 33C(2)

s. 33C

(1964) 3 S.C.R. 709

Art. 226

[1964] 5 S.C.R. 64

s. 33C(2)

Industrial Disputes Act, 1947

s. 33

sec. 33C(2)

sec. 33C(2)

sec. 33C(2)

Sec. 33C

Sec. 33C

[1964] 3 S. C.R. 140

[1964] 3 S. C.R. 709

sec. 9A

Industrial Disputes Act

Art. 226

Art. 226