,. 162

A. YOUNUS KUNJU

R.S. UNNI & OTHERS B March 8, 1984

[S. MURTAZA FAZAL ALI AND RANGANATH MISRA, JJ.]

Election Law-Representation of People Act, 1951 Section 123(4)-Al!egation c of Corrupt Practice and irregularities in the matter ofcounting of ballot papecs- Standard of proof of the charge of corrupt practiCe is the' sarlle in efectioh case, as_in a criminal case.

In tbe election held on 19.5.1982 for the election of a member of the Kerala Legi$lative Assembly "from constit.uency No .. 125 lEravipuram in the Quilon District of that State, there were eight candidates in all but the main contest was between the appellant and the respondent. No. 1.

The appellant polled 37,073 while the respondent polled 37,862. There was therefore an ecess of 789 votes.

As per the result. declared .on 20.5.1982, the respondent wa• declared elected.

The appellanftherefore, filed an election petition in the Kerala. High Court alleging commission of corrupt practices wi_thin the meaning of J; Ub-sectiOns 2, 4, and- 7 of Section 123 of th~ Act and Several irregularities in . the course of counting leading to wrong conclusion regarding the result. In paragraphs 4 to 8 of the election petition it had been alleged that e1ecti0n agent Azeez published a statement dated 13.5.1982 in thdorm of a hand-bill kiag faI1e but serious allegations gainst the appellant touching his personal character and conduct.

It was alleged that the appellant h3.d caused the murder of one Omana, a _18.dy worker supporting Respondent -No. 1 because she refused to work for the

appellant. The oral evidence to this Cffect byPWs 7, 8, 11 and 12 who-wefe the workers of tbe appellants aiid the plea for nonsummoning the.printer with the documents printed by him were not believe~ by the Election Judge. The. election petitiotvhaving been dismissed, .. the petitioner has come in appeal.

Dismissin& the appeal_. the Court

HELD : 1 : 1. The High Court rightly negatived the challenge to the G election of respondent No. 1 o~ gronds of corrupt pratice. [168E]

• 1 : 2. There is a -total consensus of judicial opinion that a chl:trge of currupt practice under the RepresentatiOJJ of People Act, 195f has to be proved beYond reason8.b1e doubt and the standard of prOof is the same as in a criminal case .. When the High Court applied the right standard in the. matter Of . . .,#Jr, "f, .....

• H

apprecition of the material pla:ced before it and has come to hold that the . allegatiorls of corrupt practice within the meaning of ection 123(4) of the Act bas not been proved, tbe Supreme Court would not re-appreciate the evidence. ' .

(167FH, 168AJ

• J

A. Y. KUNJU v. R.s. UNNi (Ranganath Misra, J. ) 163

Mahant Shreenath v. Chaudhry Ranbir Singh [1970] 3 S.C.C. 647; Bqddepal/i A Rajtl{{opa/a Raa t. N.G. Ranga, A.I.R. 1971 SC 267; applied .

• I : 3. Want of proper steps at the right time and negligence or. wilful default at 1he trial to Cause the summons and prodllctiOn of a document must only lead the Court todraw an acfvcrse inferance regarding non production of the relevaot material. [165G-H]

1 : 4. Any report of a police officer which indicates that the information was gathered from the gossips in the locality jg not admissible and it is hearsay of a type to which no. credence could attach. [166A-B] ·

l : 5. When an election was fought on party basis and there was sharp division of the electorate on the basis of political parties, workers at the election C with party alignment would Ilecesarily be political supporter of the tespective

canOidates and when called as witnesses thy would support their stand.

Instances are not uncommon where such witnesses support_ their respective can-. didates and their cas~ even though the same may be far from truth. In such circun1stanceson the oral. testimony of PWs 7, 8, 11 and 12 who are admittedly workers of the appellant the change of publication of objectionable materials can not be said to have been established. [t61iB-D] D

CNIL APPELLATE JURISDICTION: Civil Appeal No. 5992 of 1983

Appeal from the J11dgment and order dated the 7th December, 1982 of the Kerala High Cowt in Election Petition No. 8 of 1982

E ·

M.M. Abdul Khader and E.M.S. Anam for the Appellant.

f. Govinden Nair and N. Sudhakaran for the Respondents.

The Judgment of the Court was delivered by

RANGANATH MISRA, J. This appeal under Section ll6A of the Representation of People Act, 1951 (hereinafter referred to as 'the Act') is directed against the decision of the Kerala High Court dismissing the election petition of the appellant whereby he challenged the election of respondent No .. 1 as a member of the Kerala Legislative Assembly from Constituel)cy No. 125 Eravipuram in the ..

Quilon district of that State. Election was held on 19.5.l\2 and the result was declared on the following day. There were eight candidates in all but the main contest was between the appellant and the respondent No. 1. The appellant polled 37, 073 while respondent No. 1polled37, 862.

Therewas, therefore, an excess of 789 votes.

All the remaining candidates together polled abo11t 2,000 votes.

$UPREME COURT REPORTS [1984] 3 s.c.R:

Challenge to the election was laid on two g!'.ounds:- namely, commission of corrupt prctices within .the eaning of sub-sections 2, 4 and 7 of Section 123 of the Act and several irregularities in th~ course of counting leading to wrong conclusion regarding the result.

The returned candidate .joined issue and denied these allegations.

The learned Election Judge in the High Court came to hold that the appellant had failed to bring home the charges of corrupt practices ..

He also did .not accept the plea of irregularities in counting ofbal!otpapers. A request made to him for recount was rejected and on these conclusions he held that the election petition was liable to be dismissed.

Appellant's counsel conceded tha't the allegations of corrupt practices covered by sub-section 2 of Section l 23 of the Act would not be pressed.

He also fairly accepted the position that the evidence relating. to obtaining or procuring of assistance for the furtherance of the prospects of respondent No. l's election from government ' . ervants was inadequate as found by the High Court. Two grounds were, therefore, pressed in support. of the appeal, na'mely, the allegations of corrupt practice within the Section 123(4) of the Act and the allegations of irregularities in the matter of counting of_ ballot-papers.

Section 123(4) provides:

"123. The following shall}be deemed to: be corrupt o practices for the purposes of this Act:-

(4) The publication by a candidate. or his agent or by any 0th.er pers.on (with the consent of a candidate or his election. agen.t), of any statement of fact which is false, and . ' which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate; or in relation to the candidature, or witbdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidates e.lection."

• Admittedly Azeez was the election agent of respondent No: I.

In paragraphs 4 to 8 of the election petition, it bad been allged that election agent Azeez published a statement dated 13.5.82 in tlie form of a hand-bill making false but serious allegations against the appellant touching his personal character and conduct. It was alleged that the appellant had ca11se<J t4e murder of one OII\ana1 a

). .. "· KUNJlJv. iu. UNNI (Ranganath Misra, J.) 165

lady worker supporting the respondent No.I because she refused to sllpport his campaign. A meeting was held on 14.5.82 at a place known Tatamala Junction to condemn and Condole the said death.

If'was respresented that the death was "Caused on the ground that the said helpless lady was not prepared to work for him. Azeez along'wit)l other election workers carried wide scale propaganda with loud-speakers. At the said meeting there were many speakers including Azeez and the respondent No. I who spoke in the same strain as the contetl'ts of the hand-bill. This was done ·with a view to affecting the prospects of tile appellant's election. Similar

propaganda was said to have been made by them urnil canvassing stopped. The respondent No.I denied these allegations in the written statement. According to the appellant the corrupt ptactices within the meaning of Section 123(4) of the Act related to distribution of the hand-.bill in question, naely, at two places being Mayyanana and Thrikkovil Battom areas and the speeches were made at the public meeting held at Tatamala Junctiqn.

Exhibit P-1 is a copy of the hand-bill. No steps were taken to summon the original documynts"from the press where the hand-bill is said to have been got printed by Azeez, though the name of the press was borne on the hand-bill. Soon after the hand-bill came to be circulated a denial was published by the press to the effect that no such bill was printed and/or publishd by the press. Admittedly the relevant materials if called from. the press would have been the best evidence to provide the link. between the publicafion of tl; ie objectio' nable material and the 'election agent of the respondent No.I.-

When. we made a qury from !counsel for the appellant as to why such steps were not tken and the primary evidence was kept away from the Court, learned counsel.indicated to us that. the press bad come out with a denial'closely following the circulation and it was not likely that the press would have caused production of the doca ment. Since the name of the press was given in the document and appellant proceeded on the footing that the document was printed in the said press, if the press did not comply with the summons, . production could have been enforced by law. Want of proper steps at the right time and negligence or wilful default at the trial cannot be answered in the manner appellant's counsel has contended before us .and w.e must draw adverse inference against the appellant for non-production of the re.levant material. Reliance was also placed on a report by P.W.4, a police officer where there was mention of such propganda being carried on with reference t0 the death of the

• C.

166 SUPJlEMB, co\JRt REPORTS [l 984) 3 s.c.iv

~ lady. The report did not indicate the source but only statel:l tht ; the police officer collected the information from the gossips in. the ! locality. Such a report as righly held by the High Court was not I

ll admissible , and it was hearsay of a type to which no credence could attach. Though counsel was very vehement to press this document , into service he was not in a position to cite any legal basis for doing / so. Apart from these two documents' which we hold had ben

•' rightly ruled out, the other evidence is oral in character and P.Ws. '. 1, 8, II and J2 are the witnesses who have. been spoken about it.·

Admittedly all these witnesses were the workers of the appellant.

There is over-whelming m.aterial n the record, and even counsel fairly admitte.d, that .the election was fought on party basis and there was sharp division of the electorate on the basis of political parties.

That being the position, 'workers at the election with party alignment would necessarily be political supporters of the respective candidates and when •called as Witnesses they would '.support their stand.

Instances are not uncommon where such witnesses support their respective candid.ates and their cases even though the same be far from truth. In such circumstances we do not think on the oral. testimony of. these fo'ur witnesses the, charge of publication of ' objectionable materials can be said to have been established.

~ . . .

Admittedly the meeting at Tatamala Junction was held on the 14.5 .. 82 towards the evening. It is the case of the appellant that at this meeting the respondent No. 1, his election agent Azeez and several other supporters spoke.

Each one of them referred tothe. appellant as the person respohsible for the murder of tpe lady.

There is no dispute before us that the picture drawn up as the appellant as the murder• of the lady' would very .much tarnish hjs image, personality and ccter and woul.d have ad'1ersely affected the. prospects of his winning the election is, widely circulated in the constituency before pollin.s. Three witnessas have been examined being P.Ws.2, 6 and 9 in respect of the Tatamala meeting. P.W. 2 was the Circle Inspector of Police of the area and stated that he had attended the meeting. Though the 'meeting started at 7 p.m. he went to the meeting place at about 9 p.m. and remained there for about an hour.

Thus at about 10 p.m. he left the place but the. meeting was still continuing. 'He referred to the speech by Azeez but did nol indicate as to what exactly he spoke. In cross-examination he admitted that though he maifllined a diary, the details Of the meeting were not . . available and he did not report about the meeting to his superior officers, This evidence does not lend any support to the case sought to be made out by the appellant. P.W. 6 was aprinter and publisher of

A. Y .• kUNJlJ v. R.s. UNNI (Ranganath Misra, /.) 167

the newspaper by name Pauramitram. His evidence is that he was also working as reporter of the paper and.had gone to the meeting in such capacity. pn the basis of his jottings he gave a news item which was published in the paper marked Exhibit P-3. He claims to have left the meeting place at.9.30 p.m. but th~ meeting was still continuing. The news item as. rep.orted.does indicate what Azeez spoke. The -, vitness also deposed on oath about the speech of Azeez. The High court refused to .place any reliance on this witness mainly on account of the fact that this paper was not an established newspaper of the area and did not have regular pubJi; • . cation. On the basis of the evidence of R. W. 1 the information officer at the state headquarter.s, the High Court came to doubt the .. bona-fide of f.W.6 as also his paper. We have also perused tI:ie evidence of P.W.6 and R.W.l and the observations of the High Court in regard to this aspect.

We are inclined to agree with the High Court that the evidence of the witness is not impressive and we hold the same was rightly rejecte<l by the High Court which had occasion to see him. The only other witness who has been examined in regard to the meeting.is P.W.9. a person who claims to be independent and\unc.onnected with the lis. P.W.9 on his.own showing had gone to . see his father suffering from a heart, attack. 'He came from a place' about 20 kilometres away. According to him he left father's place by around 10.30 p.m. If that be so and he was covering a distance of about 20 kilometres, he would not have .reached the meeting place before 11.p.m. when the meeting is said to have concluded. His evidence that he stayed at the meeting place to listen to the speeches for quite sometime has therefore, to'be ruled out as inconsistent with the .other evidence. His evidence too has been rightly rejected by te High Court.

There is total consensus of judicial opinion that ·. a charge of corrupt practice under the Act has to be proved beyond reasonable doubt and standard of proof is the same as in a criminal case. See

Mahant Sliree Nath v. Chaudhry 'Ranbir Singh.1 This proposition has even not been disputed by counsel for the .appellant. We, th.erefore, do not propose to refer to the catena of de.cisions affirming the aforesaid view. The High Court applied the right standard in the matter of appreciation of the material placed before it and has come to hold that the allegations of corrupt practice within the meaning of Section 123(4) of the Act has not been proved. In suh a situa-

(l) [1970] 3 s.c.c. 647

16S SUI'll.EMll COuilT 11.EPollTS [!~84] 3 s.c.k '

 A fion as pointe~] out by thislCourt1 in Jthe case of Boddepalli

D . .

. J?.ajagopa/a RM v. N.G. Ranga,1 this Court would not reappreciate . the evidence. Shah, J. as he then was observed tus:. . ·

"The finding of the learned Trial Judge is based upon appreciation of evidence of the witneses in the light of'probabilities. A charge of corrupt practice under the Representation of the People Act must be established by clear _and

cogenevidence. When the Court of First Instance on a consideration of . the evidence of the witnesses has refused to place any reliance upon their testimony the burden lying upon tha party setting up a plea of corrupt practice becoes no lighter in appeal. T)le charge cannot be held, established merely upon suspicion, or preponderance of probabilities.

Unless the appellant establishes that the appreciatfon of evidence was vitiated by gross misreading or misconception of the evidence or because of failure toconsider important pieces of evidence which had a bearing on the charge or because of seriousirregularities in procedure which amount to a denial. of a. fair trial the appellate court. will not proceed to reappreciate the evidence on which the findings are recorded by the Court of First Instance on the credibility of witnesses." ·

We are in complete.agreement with these observations. Our conclusion, therefore,· is that the High Court rihtly negatived the challenge to the election of responent No. l on grounds of corrupt practices. /If,• . . .

The only other c-0ntention canvassed at the h<aring is about the irreguJarities in the counting. The total rejected. ballot-papers were within the range of SQO while the difference between the appellant and the . respondent No. l was .about 800. The details necessary for obtaining a recouI>t Weijj, not pleaded in the election petition nor was any cogent material placed before the Court which could bring the matter within the rule indicated by this Court t.o justify :a direction for recount .. That !plea, in our opinion, has

rightly been negatived by the High Court. The appeal fails and is dismissed. Parties shall beat their own costs in this Court.

~ Appeal dismissed.

(I) AIR [1971) S.C. 267

162

A. YOUNUS KUNJU

R.S. UNNI & OTHERS

March 8, 1984

S. MURTAZA FAZAL ALI

RANGANATH MISRA, JJ.

Section 123(4)

Kerala. High Court

Section 123

Azeez

Omana

Supreme Court

Ranganath Misra

M.M. Abdul Khader

E.M.S. Anam

Govinden Nair

N. Sudhakaran

Representation of People Act, 1951

$UPREME COURT REPORTS [1984]

sections 2, 4 and 7

Section 123

section 2

Section 123(4)

Section 123(4)

Azeez

Section 123(4)

Pauramitram

Section 123(4)

Boddepalli

Shah

Representation of the People Act


VED PRAKASH GUPTA

D.ELTON CABLE INDIA (P) LTD. l.t

March 8, 1984.

}).A. DESAI 0. CHJNNAPPA REDDY & A. VARADARAJAN JJ.)

 Industrial Disputes .Act. 1947 S. 2(s)-Definition of Workman-Scope of- Covers.an employee whose substanriQl duty is of a securit)I inspector _at the gate of

factO'.Y premises.

Industrial Disputes Act, 1947-S. 2(ra)"-Dejinition of unfair labour practice- Scope of-Dimissal on flimsy gr/Jund-Wh; ther amounts to vict!mjzation or unfair labour pr:actlce by management.

Natural Justice-Principle ... of-Enquiry officer nat summoning necessary D witnesses-Whether findings of enquiry ojfiCer pen>erse.

The appellant, an.e1nployee_ of the respondent, was charg-:d for abusins,, some feHOw worker oi officer of the management within the premises of the_

factory of the respondent. In dome,.stic enquiry the Enquiry Officer found the appellant guilty of the charge. The .mt\nag"ement dismissed the appellant. On a reference being made under s. tO(i)(c) of the Industrial Disputes Act. 1947 the Labour Cout held on preliminary issue that the reference was bad in law bccauSC>the appellant was not a workman under s. 2(s) of the Act. The Labour Court's findirigs w.:re challengCd by the appellant in a writ petition which was dismissed by the High. Court in limine On a special leave petition being fi.Jed by the appellarit from which this appeal arises, this Court dfrected the Labour Court to try the other issues before it on the basis that the appellant was a

workman. The Labour Court held that the finding of the Inquiry Officer was ... perverse; the punishment of dismissal was dispr0porti6nate to the gravity of the charge and the appllanl was entitled to reinstatement with full back wages and continuity of service. The management filed a writ petition in the High Co'urt challenging the findings of the Labour Court. This writ petition was transferred to this Court.

Allowing the appeal and dismissing the.writ petition,

HELD : A perusal of the evidenee shows that the substantial part of the work of the appellant consisted of looking after the security oflhe factory and its property by deputing t.he watchmen working under him to \\'Ork at the factory

gte or sending them to watch-towers or around the factory or to accoin.pany v.lSitors tb the factory and making entries in the visitors' register as regards the visitors and in the concerned registers as' Te&ards materjaJ entering or, going out of the premises oftlte factory. The apellant could never appoint or dismiss any workman or orer any enqu~? against any workm; in. In these circumstance'

,-.

. .,

it is hetd that the substantial duty of the' appellant was only thatof a Security Inspector at the &ate of the factory premises and that it was nelther-managerial nor supervisory in nature in the sense in. which those terms are understood in industriaJ law. Theref.ore he clearly falls within the definition of workman Under s. 2(s) of the Act and the reference of the dispute under s. IO(i)(c) of the Ac.tis valid in, aw. [17'IBC, E-G]

It is seen from the judgment of the Labour Court that though \be appellant had produced before the Enquiry Officer 5 sheetS of.papers with the signatures of about 100 workmen of the factory in support 'of the statement that the appellant had not abused anyone in the factory dufing the course 'of his servjce and the manage'ment had produced Exts. M-6, a list of 90 peisons before the Enquiry Officer, he h'!d not called any of those persons .to ascertain thetruth regarding the allegCd abuse by the appellant. It is also seen from the judgment of the Labour Court that.the appe'llant was hot giVen a list of the management's witnesses before the commen9ement of the domestic enquiry. In these cir<:um stances, the conclusion of the Labour Court that the Enquiry Officer had not acte4 properly in the proceedings and that he had not given full Opportunity to the appellant as required by law does not call for any interference: [178CE]

The punishment ..awarded to the appellant is shockingly disproportionate "regard b, eing l; ad to the charge framed against him. No resporisible eployer

would ever impose in like circumstances the .punishn1ent of dismissal to the employee, and victimizatio~ or unfair labour practice.could well be inferred irom •the conduct of 'the management in aWarding the extreme punishn1ent of dis- . missal for.a flimsy charge of abuse of some worker or officer of the management by the appellant within the premises of thefactory. [l78G-H, 179A]

Therefore termination of the apiJellant's sf;:rvice is invalid and unsustainable 'in law. [179A]

L/yods Bank Ltd. v. Panna lat Gupta & Others(l961) LLJ.18 and Construction and Engineering Company Ltd. v. Their Wor.kmen (1965) LLJ. 462, .

refrred to~

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1673 ~~. . ..

ApJ?eal by Special leave from the Ju<lgment and Order dated the !Ith hnuary, 1982 of the Punjab and Haryana High Court in Civil Writ Petition No. 26 of 1982).

G o. P. Malhotra, and N, S. Das Bahl and Pawan K. Bahl for

the Appellant.

Shanti Bhushan and V.P. Chaudhary for.the Respondent.

The Judgment of the Coutt was delivered by

V ARADARAJAN, J. This civil appeal by special leave is direced itgainst the judgment delivered by the Division Bench of the Punjab

V.'f>. GUPTA v .. DELTON CABLE (Vardarajan, J.) j 7J

& Haryana High Curt on 11.1.1982 dismissing in limine Writ

Petition No. 26of1982 which had been filed by the appellant Ved Prakash Gupta. The appellant was an employee of the first respondent M/s; Delton Cable India (Pl Ltd. Faridabad, Haryana. He was given a charge-sheet by the management on 5.8.1979 and dismissed from service on 13.9.1979 after having been found guilty of the charge in the domestic enqiry conducted by the Enquiry Officer who has been examined as one of the witnesses on the side of the mana-· ' gement before the Labour Court at a later stage. There was reference of tHe dispute arising out of the dismissal of _the appellant to the Labour .Court, Faridabad in Reference No. 143 of 1980 under

s.10 (i) (c) of the Irldustrial Disputes Act, hereinafter referred to as the 'Act.' The Labour Court framed the following issues. ·

(i), Whether the claimant Shrl Ved Prakash Guljta was in the position of a workman under the Industrial Disputes Act?

If so, to what effect?

(ii) Whether tlie reference is bad in law in view of the objections raised in the written statement? If. so, to what effect?

(iii) Whether proper and 'valid . domes-tic enquiry has been E , conducted? If so, to what effect?

(iv) Whether the termination of the service of the workman is proper, justified and in order? If not, to what relief is he entitled? • Issues l and 2 were tried as preliminary issues by the Labour Court. The Labour Court held on issue no. l that the appellant Is not a workman within the 'maning of the definition of workman contained in s. 2(s) of the Act. Consequently, it was held that the reference is bad in law in the light of the bjections raised by the ll'.!anagement in the written statement. The Labour Court held that there was no need to consider. the other two issues and passed an award against the appellant. It was against that a, ward that the appel)ant filed the writ petition which was dismissed by the Division Bench of the High Court in limine on 11.1.1982. This Court granted special leave 'to appeal against the judgment of the High Court and later directed the Labour Court to try the other issues on the basis that the appellant is a workman as per the f\ct. The Labour Court accordingly tried the other two issues and held that though the domestic enquiry

stlP_l_\BME Collilt REPORTS [1984] 3 s.c.it

was fair and proper the finding of the euquity officer was perverse.

The Labur Court has observed: •

"The Enquh;.y Officer should have given findings according to the evidence before him intbe enquiry proceeding. J; Ie bas neglected M4 and M-6 while giving the findings in the enquiry. -He also failed to summon the necessray witnesses

an,4 tejected the request of the workman for challenging those witnesses.''

The Labour Court found that the punishment of dismissal awarded to the appellant was disproportionate to the gravity of the charge framed against him and that be is entitled to reinstatement with full baci\: wges and continuity of service.

I t- ,

The management filed Writ P.tition No .. 4567 of 1982 in the' High Court against the order of the Labour Court holding that the finding of the Enquiry Officer was perverse and that the appellant

. Y is entitled t0 reiastatement With full back wages and continuity of service. The writ petition has been itbdrawri to this Court by order dated 9.7.1983 to be beard along with the civil appeal. This .. is how the. civil appeal and writ petition have come up before us . .

E .

Arguments were advanced before us by Mr. 0. P. Malhotra

r -

appearing for the appellant and Mr. V. P. Choudhary appearing for management on two points viz:(!) whether tbe appellant wa~ • .:/ a workmen at the relevant time and (2) whether his dismissal is valid in law

The charge framed against the appellht was a~ follows:

"You were on duty on 31.7. 1979 and 1.8..1979 from 8 a.m .. to 4 p.m. It was reported against you as under:

On 31. 7 .1979 a person from M/s. Gurnmukh Dass (building material supplier) came to lMI department with two copies of challan No. )05 dated 15.7.1979 f9r obtaining the signature of the person mncerned in ·;1oke1i of having received 2000 bricks. The copies ofthe chanan were having the gate entry. Shri Durg Singh on instructions of Mr. S.K.

Bagga, junior Engineer, went to the gate for confirming whether the bricks have been received in the factory premises. us per the challan. It was found that the gate entry for the . . ., .

.L.

. -" ' t

V.P. GUPTA v. DELTON CABLE (Varadarajan, J.) 173

supply of 2000 bricks as per the challan aforesaid had been A cancelled in the gate register. You, however, tookthe challan (both copies) from Shri Durg Singh and cancelled the gate

entry from the challan and returned goth the copies to the perso°' of M/s; Gnrumukh Dass.

That on 1.8.1979 as pe. the instructions of IM! department one Mr. Hira Laf, the worker ofIMI department was sent to the gate office in connection with a challan of a water pump. As the worker i.e. said Mr. Hirn Lal did not come back to IMI department for quite some time Mr. S.K. Bagga, •Junior Engineer of IM! department persona!Ly went to the . gate office. He (S.K. Bagga) apprised Mr. Deep Chand

Senior Security Officer of the irresponsibl~ manner in which yon delivered the chalian to the persop of M/s. Gurumukh Dass instead of to IM! department. When Mr. Deep Chand further verified this fact from you you showed ignorance and

- demanded t0 know the name of the person who had said so.

When informed that it was Durg Singh you without any rhyme and reason or provocation abused Shri Durg Singh in a filthy manner saying (translated in English as I fuck the mother of Dnrg Singh ; bring him). You were advised that being a responsible employee and that too belonging' to the security departmnt you should not abuse any employee but you continued in hot temper and demanded Mr. Durg Singh to be called in the gate office.

When Shri Durg Singh was brought and in your presence he once again confirmed and . reiterated.that yon had given the chal!an to the person of M/s.

Gurumukh Das yon lost all your senses and started abusing Shri S.K. Bagga left and right in a filthy, derogatory and abusive manner. You said (translated in English as-you should try liard to. your gandh; y, ou cannot do anything worng to me. Yon may go to Ram Kumar or yon may go to Vijay Ku; mar): The above conduct of yours is gross misconduct as you have lost the basic. courtesy which yon were supposed to extend to the employees as a responsible member of the security staff. The charges if proved will result in total loss of confidence in you."

Jhe two questions arising for our consideration in the civil appeal and writ petition are :

(i) whether the appellant was a workman within the meanin$

<;>f s. 2. (s)'Of the Act ?; an~

' G

174 SUPREME co.URT REPORTS

(1984] 3 S.C.R.

(ii) whether. the termination of the appellant's service is

proper?

 On the first question there is evidence of only the appellant .examined as WW-I on his side and of the Personnel Manager examined as MW-! 0n the side of the management. The evidence WW-I shows that he was originally recruited as a clerk on a .salary of Rs. 160/- per mense.m. It was admitted by MW-I t!iat at the time of the termiqation of his service WW-I was dtawing total emoluments of Rs. 581/- per mensem as Chargeman security equivll- . lent to a security Inspector as stated in the appellant's claim statement. He was working under the Security Officer and varions other heads of departments of the management.

He has deposed thtt he used to perform the duty of a Chowkidar whenever one left.the place temporarily for taking tea etc.

He has also deposed that he used to accompany accounts branch people as a gaurd ', Vhenever they carried money. He. has statd. that he was ordered to fill up leave application forms of other workmen and counter-sign them before they were approved by the Security Officer. It has ben elicited from him that he has filled up duty registers of workmen and thai some small store items like torch-cells were issued from the

store~ under his signatures. It is seen from his evidence that such store items could be got from the stores under tohe signatures of . . ' even watchmen. On the other hand, MW-I has stated in his evidence that Exts .. M-1 to M-7 are copies of leave applications of workmen containing the apellant's signatures and .that Exts. M-50

anct' M-Sl bearing the appellant's signatures are identity cards .issued by the management to workmen. He has. stated that the Security Inspector is provided with a. chair and a table and three telephones- . one of them an intercom, one connected with the fact.ory and the ·

third connected with the exchange of the telephone department and that the appellant was an officer of the first rank in the respondent's factory. There is no doubt whatsoever that MW<-1 is exaggerating the position which the appellant was holding in, t!ie respondent's factory.

He has admitted that the telephone is piovided in.the Security Inspector's rooni at the gate of the factory premises only to pass on immediate information to other places from the gate of the factory: The telephon, s provided in the Securify Inspector's room at the gate of the factory premises are not intended for the Security• Inspector to carry on any managerial function. MW-I has admitted , jn his evidence that the, Security Inspector ould not appointor dismiss or even take any disCiplinary action against any workman of the

etj:ilishmen\. He has stated that the Security Inspector has control

' >

V.P. GUPTA v. DELTON CABLE (Varadarajan, J.) 175

over 5 watchmerl, drivers, Rickhaw-pullars and sweepers-16 persons. in all and is ip. overall charge of the factory during the first and third shifts which cover the period from 12 mid-night to 8 a.m. while. the important second shift is from 8 a.m. to 5 p.m. According to the evidence of MW-1 the security Inspector allots duties to persons working under him by way of retaining them at the factory's gate r sending them to watch-towers or for moving around the factory or . accompanying visitors to the factory.

He could order his subordinates to come for overtime duty, sanction , leave for them and recommend for advances and for their promotion. He could issue identity cards like Exts. M-50 and M-51 to workmen and draw small items of stores and issue them to the security staff. He has admitted that the Security Inspector has writing work for only 10 to 30 minutes in the second shift and almost no writing work at all in the first and third shifts and that the writing work consists of entering the names of visitors in the .visitors' register and making entries in respect of in-coming and out-goi!'g materiais in the concerned registers.

S. 2(s) of the'.Act describes a workman and reads :

"workman' means any person (including apprentice) employed in any industry to do any manual, unskilled, skilled, . technical, operational, clerical or supervisory work for hire or reward, whether the terms of employiner\( be express or implied and for the purpose of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connec- _ tion with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment ha;" led to that dispute, but does not include any such .person-

(i) who is subject to the Air Force Act, 1950 (45 of. 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957) ; or

(ii) who is employed in the police service or as an officer or other employee of a prison I or

(iii) who is employed mainly in a managerial or administrative capacity ; or

_(iv) who, being employed in a supervisory capacity, . draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of dutis atta"ched to the office .or by reason of the powers:vested in him, func tions mainly 'of a managerial nature." '

The respondent-management can at best contend that the appellant would fall under s. 2(s) (iii). That has been its attempt before the Labour Court and also in this Court. The management's endeavour is to show that the appellant who admittedtly was drawing total emoluments of.only Rs. ~81/· per mensem at the relevant time was employed in a managerial or administrative capacity and was therefore not a workman who could raise a dispute under the Act.

This Court has stated in Llyods Bank Ltd. v. Panna .Lal Gupta & Others 1 that though it would be legitimate to say that the work done in the audit department is 'important for the proper and efficient functioning of the bank it would be idle to elevate that work to the status o\ offiers who supervise the work of everybody concerned with the bank's establishment. It would be useful to remember in this connection what this Court had stated in Hind Construction and

Elfgineering Company Ltd. v .. T}leir work'!'en.• It is this :

 "The tribunal's Power has been stated in this Court in a large number of cases and it has been ruled that the tribunal can only interfere if the conduct of the employer shows lack of bona !ides or victimization of employee or employees or unfair labour practice. The tribunal may in a strong case interfere with a basic error on a point of fact or a perverse finding but it cannot substitute its own appraisal of the evidence for that of the officer conducting .the domestic enquiry though it may interfere where the principles of natural justice or fair play have not been followed or where the enquiry is so perverted in its procedure as to amount to no enquiry at all......... The tribunal is not required to consider the propriety or adequacy of the punishment or ' whether it is excessive or too severe .. Bnt 'where the punish

ment is shockingly disproportionate regard being had to the

(!) [1961] L.L.J. 18

\2) [1965] L.L.J. 46?

. ' ?

v.P. GUPTA v. DELTON CABLE (T'.aradarajan, J.)

particular conduct and the past record or is such as no reasonable employer would ever impose in like circumstances, the tribunal may treat the imposition qf uch punishment as hself showing victimization or unfair labour practice."

A perusal of.the evidence of WW-1 and MW-1 •regarding the nature of the duties performed by the. appellant shows that the substantial part of the work of the appellant consisted of looking after the sec1Jrity of the factory and its property by deputing the watchmen working upder him to work at the factory gate or sending them to watch-towers or around the factory or to accompany . visitors to the factory and mal[ing .entries in the visitors' .register as regards the visitors and in the concerned registers as regards . ' . . materials entering or going out of the premises of the factory. It must be noted that MW-1 has admitted in his evidence that there is nothing in writting to show what duties are to be carried out by the appellant. Placed in such a situation the appellant might have been doing other items of work such as signing identity cards of workmen, issuing some small items of stores like torch-cells etc. to bis subordinate watchmen, which can be got from the stQieS even under . the signatures of watchman and filling up applicatio1;1 forms of other

workmen and counier-signing them or recommending advances and loans or for promotion of his subordinates. It must also be remembered that the evidence of both WW-I and MW-I shows that the appellant could never appoint or dismiss any workman or order . . any enquiry against any workman. In these circnmstances weold

that-the sulistantial duty of the appellant was only that of a Security Inspector at the gate of the factory premises and that it was neither. managerial nor supervisory in nature in the sense in which those terms are understood in industrial law. In the light of the evidence and the legal position referred to above we are of the opinion that. the finding of the Labour Courfthat the appellant is not a workman within the meaning ofs. 2(s) of the Act is perverse and could not be supported.

On the evidence available on record we bold that the appellant clearly falls within the definition of a workman ins. 2(s) of . the Act and that the reference of the dispute under s.10 (i) (c) of the Act is valid in law.

 The finding of the Labour Court that the enquiry was fair and prqper in the light 'Of its own finding that the enquiry :"fficer failed to summon the necessary witnesses and rejected the request of the _.appellant for challenging the witnesses could not be stated to be correct.

On the merits some witnesses were examined on the side pf the management before the Labour Court and they are S.K.

•• c

•• c

Bagga, MW-2, Hira Lal, MW-3, Deep Chand, MW-4 and Laxmi *-;.-

Chand, MW-5 an Accountant ofM/s. Gurumukh Dass, MW-2 has '--.. deposed about the appell; mt abusing Durg Singh who according tq the appellant was the Secretary of a Labour Uniou while the appellant and others were trying to canvass membership for a rival trade union.

MWs-3 and 4 are stated to have corroliorated the evidence.of MW-2.

MW-5 is the only independent witness examined on the side of the management. It is seen from the judgment of the Labour Court relating to the merits of the case that MW-5 who has deposed aout . the challans Exts. M-7 and M-8 having been returned to the persori who accompanied him from the maintenance,. department had not supported. the management that. the appellant abused Durg Singh or any other person within the premises of the factory. It is aiso seen from the judgment of the Labour Court that though the appellant had produced before the Enquiry Of11cer 5 sheets of papers with the signatures of about 100 workmen of the factory in support of the statement that the appellant had not abused anyone in the factory during the course of his service and th.e management had produced Exts. M-6, a list of90 persons before the Enquiry Officer, he had not called any of '.. - . those persons to ascertain the truth regarding the alleged abuse of Durg Singh and S.K. Bagga by the appellant. I.tis also seen from the judgment of the Labour Court that the appellant was not given a list of the management's witnesses before the commencement of the domestic enquiry. In these circumstances, we are of the op; nion that thl!! conclusion of the Labour Court that the Enquiry Officer had not" acted properly in ihe proceedh1gs arid that he had not given full . ' . opportunity to the appellant as required by law does not call for any interference. The charge levelled against the appellant is not a serious one and it is not known how the charge even if proved would result in any much less total loss of confidence of the management in the appellant as the management would have it in the charge. It was argued In the Labour Court that there was no previous adverse remark against the appellant. There is nothing record to show that any previous adverse remark against the appellant had b.een taken into consideration by the management for a warding the extreme penalty of dism.issal from service to the appellant even if he had In fact abused in filthy language Durg Singh and s.K. Bagga.

We are therefore of the opinion that the punishmerit]awarded to the appellant. is shockingly disproportionate regard being had to the charge framed against him.· We are also of the opinion that no responsible employer would ever"impose in'like circumstances the punishment of dismis~.1 to the. employee and that victimization or unfair labour practice could well be .inferred from the conduct of the 111a11asement in,

-~'

• V.P. GUPTA v. DELTON CABLE (Varadarajan, /.) 1 :9

awarding the extreme punishmeni of dimissal for a flimsy charge of abuse of some worker or officer of the management by the-appellant wtthin the, premises of the factory. We therefore hold that the termination of the appellant's ervice is invaliili and unsustainable in law, and that he is entitled to reinstatement with full back wages and other benefits including continuity of service. The appeal is allowed accordingly with costs qu; mtified at Rs. 1,000. The writ petition is dismissed without costs.

H.S.K.

Appeal allowed.

. ' •

VED PRAKASH GUPTA

D.ELTON CABLE INDIA (P) LTD

A. DESAI 0. CHJNNAPPA REDDY

A. VARADARAJAN JJ.

S. 2(s)

Industrial Disputes Act, 1947

S. 2(ra)

Industrial Disputes Act

s. 2(s)

s. 2(s)

S. Das Bahl

Pawan K. Bahl

Shanti Bhushan

V.P. Chaudhary

V ARADARAJAN

Vardarajan

Ved Prakash Gupta

Industrial Disputes Act

s. 2(s)

0. P. Malhotra

V. P. Choudhary

31. 7 .1979

Gurnmukh Dass

Durg Singh

S.K.

Bagga

Varadarajan

Gnrumukh Dass

Hira Laf

Hirn Lal

S.K. Bagga

Deep Chand

Gurumukh Dass

Dnrg Singh

Gurumukh Das

Ram Kumar

s. 2

S. 2(s)

Air Force Act, 1950

Army Act, 1950

Navy Act, 1957

s. 2(s)

T'.aradarajan

Bagga

Hira Lal

Deep Chand

Laxmi

Gurumukh Dass

K. Bagga

H.S.K.


I .

• 180

SHRI VALLABH GLASS_ WORKS LTD. & OTHERS

• . , v • • •

UNION OF INDIA & OTHERS B

March 14, 1984

[B.S. VBNKATARAMIAH AND.R.B. MISRA J1.) r,

Constitution of India 1950, Article 2261ndian Contract Act 1872, Sectio~ 7.}: C Limitation Act 19o3, Section J7(J)(c) & Article 113_.

ntral Ecise & Salt Act 1944, FirSt Schedule, Item 23A(I) and Item 68.

Excise duty-Claim for refund of excess duty paid-Jurisdiction of the High Court to order refund in a petition under Article 226. y

Appellant No. 1 was a compaQ.y engaged in the business of manufacturing different types of glass, viz., figured glass, wired glass, coloured figuft:d glass, rolled glas; and coolex wired glass. 1he Central Excise Department had levied and collected excise duty on the said go'Ods on the basis that they ., belonged to the category of 'sheet glass' and were therefore subject to pa:Ytnent of excise duty under Item 23A(I) of the First Schedule to the Central Excise and Salt

- Act, -)944. On February 20, 1976, tjle appellauts. applied for the refund of excess duty paid by them from.October I, !%3 upto the date of the application .

On the ground that the items of glass in cjuestion could not be described as 'sheet glass' mentioned in Item 23A and that since they did not faJl undei any ()f the Items I to 67 in the First Schedule of the Act they could only be ubjected

to levy of e:xcise dutY uDder the resid.uary provision, Iten:i 68. The Assitant Collector of dntral Excise rejected the claim_ for rfund and the appellants there-upon filed a Wrii petition in the High Court on September 28, 1976, but "the same was withdrawn as a Departmental Appeal filed by the appellants was pending with the Collector. The said Departmental Appeal was however later dismissed and this order was confirmed in the appeUants' revision petition to the -Government.

The appellants thereupon filed a Writ Petition in the High Court and assailed ihe order. The High cOurt revered the decision of the departinental authorities and held that the items of glass manufactured by the appeUants did not fall within IDe scope of tariff Item 23A(I) of the First Schedule but that they, "ame within tariff Item 68 thereof, liable to duty accordingly, and directed refund of excess duty paid after February 20, 1976, on which date the dispute was raised. The claim. for fefund of excess duty paid durin8 th~ period prior to February 20, 1976 was, however, rejeCted.

In the appeal to this Court on the question : (I) whether the appellauts

re etitled to Claim refund of excess excise duty paid prior to Febrwary201 '

V ALLABH GLASS WORKS v. UNION 181

1976 and whether they are entitled to claim refund of such duty paid between October l; 1%3 and February 20, 1976 or during any shorter period, and (2) whether the appellants are entitled to claim such refund ii; i respect of all the

good~

Allowing the appeal in part .

• HELD : 1, (i) The excess amount paid by the appellants would have become refundable b~ virtue of.section 72 of t'he Indian Contract Act if the appellants had filed a suit within the period. of limitation. Section 17(1)(c) df

the Limitation Act, 1963 provides that where in the case of any suit or appli~ cation for-which a per\od of limitation is prescri)Jed under that Act~ the suit or application is for relief fro.m the consequences of a mistake, the period Of /

limitation shalt not begin to run until the plaintiff or appliCant had discovered it.or could ha¥e with reasonable diligence discovered it. [186F-G]

(ii) Under Article 113 of \]:le Limitation Act, 1963 a &uit for recovery of excess duty had to be filed within three years from the date of payment to the Department. [187B]

(iii) The J-Iigh Courts have p6wer, for the purpose of enforcement of fundamental Tights and statutory rights-to make consequential Orders. for 'repayment of money realised by .Government without the authority of law under Article 226 of the Constitution. This. is an alternative remedy provided by the Constitution in additiOn to, but not in supersession Of the ordinary remfdy by way cir suit in the absence of any provision which would bar such a suit expressly or by necessary 'Implication. While there are different periods of limitation prescribedfor the institution of different kinds .Qf suits by the Limitation Act, 1-963, there is no such period prescribed by law in respect of petitions filed lJnder Article 226 of the Constitution. Whether relief should be_ granted to a petitioner under Artide 226 where the cauSe of action had arisen in the remote past is a matter of sound judicial discretion .governed by the doctrine of !aches. Where . a petitioner wko could have availed of the alternative remedy by way of suit approaches the High .Court under Article 226. it is appropriate ordinarily to construe that any unexplained delay .in fiing of the wri't petition after the expiry of the period of limitation pres<;:ribed for filing a suit as unieasonable. This rule, however, cannot be a rigid formula. I;:ach case has to be judged on its own facts and circumstances touching the conduct of the parties, the change in , situation, the prejudice which is likely to be caused to the opposite party or to the general public. [187D-H]

In the instant case, the appellant had made excess payment on being assessed by the Department and such payment cannot be treated as voluntary payment preclµding them from rcoVering the amounts. The appellants should in the facts and Circumstances of this case be deemed to have discovered the mistake on the date of making eh payment of excise duty in excess of the proper duty payable" under law. All sQch excess payments made on or after .September 28, 1973 which would fall within the period of.three years prior to the date on whic• the first writ petition was filed should.have been orred to be refunded under Article 226. But the High Court declined to do so. Though

182 SUl'RJ!ME COUR't REPORTS [19841 3 s.c.I\

the appellant should not be granted apy relief in respect of pay1nent made t ween October I; 1963 and September 27, 1973 which would fall beyond the three years from the date of the first writ petition, it .iSnot proper and just tO negative the claim in respect of excess payments made after Septer; nber 28, 1973.

[}87H-188D]

_Sales Tax Officer, Banaras & Ors. v. Kanhaiya Lal Mukundlal Saraf, [-1959] S.C.R. 1350, referred to.

2. In respect of wired glass; a dispute h:s arisen between the Department and the appel1ants earlier anc}. in that ce while the Department claimed that wired lass was subject to payment of duty under tariff Item . 23A(4) the appel- ' !ants.pleaded that wired glasJ was liable to duty under tariff Item 23A(I). The

Govement of. India ultimately aCcepted the cse of the appellants, and .duty was paid on that basis till February 20, 1976. While the eaflier order may not be a legal bar to the .Contention raised by the appellants. on February 20, 1976 'that wired glass was not taxable under tariff Item 23A(l) but under tariff Item 68 after that date, it is certainly a circllmstance which disentitles' the. appellants 'to daim refund, of excess duiy pald by them in a petition under Article 226. 'The claim for refU; nd of excess dutY paid on wired glass during the period prior to February 20, 1976 is therefore liable to rejected.

[1850-186C]

CIVIL APPELATE JURISDICTION: Civil Appeal No. 3338 of 1979

From the Judgment and 'Order dated 22 and 23-11'78 .of E Gujarat High Court in Sp!. Civil Application No. 577 of 1978.

Anil B. Divan, Ravinder Narain and Ms. Rainu Walia for the.appellants.

M. M. Abdul Khader, G. S. Narayan and A. Subhashini for f the respondents.

The Judgment of the Court was delivered by

VENKATARAMIAH, J. This appeal by spee.ial leave is filed against the judgment and order dated November' 22/23, 1978 of the High Court of Gujarat in Special Civil Application No. 577 of 1978 filed under Article 226 of the Constitution.- •.

Appellant No. I° is a company which is ei1gaged in the business of manufacturing diffrent type& of glass viz. figured glass wired glass, coloured figured glass, rolled glass and coolex wired . glass at Vallabh Vidyanagar in the State of Gujarat j-om the year

1963. Appellant No.2 is the Managing Director of appellant No. L The Central Excise Dep:rrtmen t had levied .and collected excise duty

,.. .

' . on the said goods on the basis that they belongedto the.cataegory of sheet glass and wer.e therefore subject to payment of excise duty . ' under Item 23A (I) of the First Schedule to the Central Excises i"td Salt Act, 1944 (hereinafter referred to as 'the Act'). On February 20, 1976, the appellants applied for. the refund of excess duty paid by them from October 1, 1963 pto the date of the applicatioti on the ground that the item of glass in question were distinct .com mercial goo'ds known in the market as figured glass, wired glass, coloured figured glass, rolled glass,!coolex figured glass and coolex

.- wired glass and could not' be desc'ibed in common parlance as 'sheet . glass' mentioned in Item 23A and that since they did not fall under . any of the Items l to 67 in the First Schedule to the Act' they could . only be subjected to levy of excise duty under the residuary provi sion Item 68 in that Schedule after it was inserted in it. •

...,,, Item 23A of the First Schedule to the Act at all material times

... !

read as.~

"23A. Glass and glassware-

(1) Sheet.glass and plate glass "'

(2) Laboratory glassware

(3) Glass shells, glass globes and chimneys ,. for lamps and hinterns

. (4) Other glassware including tableware

Thirty per cent ad valorem . '

Ten per cent ad valorem

Fifteen per cnt ad valorem

Thirty per cent ad valo

rem."

The relevant part of tariff.Item 68 which was introducedjfrom March .1. J975 read as:

a "68.All other goods not ·

elsewhere spceified, manufactured jn a factory but excluding

(a)· alcohol, all sorts, includin& a!cYcholic liquors for human consumption.

One per cent ad valorem

I 84

SUPREME COURT REPORTS

(b) opium, Indian hemp

 and other narcotic drugs and narcotics; and

.. (c) dutiable goods as defined in sections 2(c) of the Medicinal and Toilet Preparations (Ex- 1 cise Duties) Act, 1955."

(19$4) 3 S.C.ll.

, ' J

After holding an enquiry and hearing th'\: appellants, the Assitimt Collector of Central Excise, Anand rejected the claim for refund by his order dated September 20, 1976 because he was of the view that the Items of goods in respect of which dispute had been . raised fell within the purview of tariff Item 23A (1). Against the said order of the Assistant Collector the appellants' filed a writ petition in Special Civil Application No. 1365 of 1976. on the file of the

Hih Court on September 28, 1976, The said petition was admitted but. when it was taken up for final hearing it l'l'1S contended on behalf of the :bepartment that since . the. appellants had also filed

n appeal against the very same order before the Collector of Centra 1 Excise they could not pursue the remedy under Article' 226 of the Constitution as it stood then. In view of the above contention the writ petition was withdrawn without prejudice to the remedy by way of appeal. The appeal was thereafter disposed of by the Collector on July 27, 1977 affirming the .order of the Assistant. Collector.

A revision petition filed by the appellants against the . order of the Collector was dismissed by the Government of India by its order dated February 2, 1978. The said order in revision was challenged before the High Court by the appellants under Article 226 cif the Constitution. The High Court by its judgment under appeal 'reversed the decision of the departmantal authorities which had; been affirmed by the Central Government and held that the items of glass ma•- factured by the appellants namely, figured glass, wired glass, coloured figured glass, rolled glass and coolex wired glass did not fall within the scope of tariff Item 23A(l) of the First Sr:hedule to the Act as it stood at the material time but' they came within _tariff Item 68 and were liable to bear duty ttcr:ordingly. The High Court was, however, of the view that the appellants were only entitled to refund of excess duty _paid by them after February 20,

> . j

1976 on which date they raised the dispute. Accoi:dingly the High Court issued a writ quashing the decision of the Department in so far as the classification of the goods was concerned and declaring that they were subject to payment of duty under tariff Item 68 of the First Schedule. to the Act aud not under tariff Item 23A(l) thereof. The Department was further directed to review the rlevant assessments accordingly for the period subsequent to February 20,

1976 and to refund any excess duty that might after such review be found to be refundable to the appellants. The claim of the appellants for refund of excess duty . paid during the period prior to February 20, 1976 was, however, rejected. The appellants have filed this appeal by special leave only as regards the rejetion by the' High Court pf their prayer for refund of excess duty paid by them prior to February 20, 1976.

The Departn1ent has not filed any appeal against the judgment of the High Court. Hence the decision that the goods were taxable

under tariff Item 68 and not under tariff Item 23A(l) of the First D Schedule to the Act has become final. Item 23A(l) is also stated to have been since amended suitably so as to bring the items of glass in dispute within its scope.

The question which arise for consideration in this appeal are therefore (1) whether the appellants are entitled toclaim refund of • excess excise duty which bad been paid by them prior of February 20, 1979 and if so, whether they are entitled to claim refund of .snch duty paid betweeji <;>ctober 1, 1963 and February 20,1976 or during any shorter period and (2) whether the appellants are entitied to claim such refund in respect of all the goods in question.

Since it is convenient to dispose of the second qu<stion at this . stage,· we shall. take it . up first: A few more fr cts which are relevant to this issue have to be stated here. As mentioned earlier the goods in respect of which dispute had been raised by the appellants in their applitation dated February 20, 1976 were figured glass, wired glass, cqloured figured glass, roiled glass and coolex 'wired glass. But it is seen that in respect of wired glass, a dispute ha.d arisen between the Department and the appellants earlier and in that case while the Department claimed that wired glass was subject to payment of duty under tariff Item 23A(4) the appellants pleaded that wired glass was liable to duty under tariff Item 23A(l).

The Gove111ment of India ultimately by its order' dated August 24, 1971 lin Order No. 26J of 1971 of the Government of India oil

SUPREME CO Ult t REPORts (19s4i 3 s.c.ll..

Central Excise Revsion Application) accepted the case of the appellants that wired glass was subject to duty under tariff Item 23A (I) and the appellants paid duty on that basis till Febuary 20, 1976.

These facts distinguish the case in respect of wired glass. from the case in respect of the other gooqs. While the said earlier order may not be. a legal bar tq tpe contention raised by the appellants on February 20, 1976 that wired glass was not taxable under tariff Item 23A(l) but under tariff Item 6S after that date, i't is certainly 'll circumstan.ce which disentitles the appellants to claim• refund of excess duty paid by them in a petition under Article 226 of the Constitution on a ground contrary to their earlier stand. The claim for refund of xcess duty paid on wired glass during the period prior.to February 20, 1976 i~ liable to be rejected. The appeal of the appellants to that extent should, therefore, fail. . .

In regard to the relief of refund of excess duty paid in respect of the other. goods, the case stands on an entirely different footing.

This is a ca.se where t.he Department had ass.essed the duty payable by the. appellants under a wrong. provision. The appellants were obliged to pay the duty so assessed. They did not, no doubt, qlies tion the assessments by taking a specific stand as t\ley had done earlier in the case of wired glass. The appellants, however, question ed the validity ofthe levy only on February 20, 1976 on the ground that tariff Item 23A (1) of the First Schedule to the Act under which the duty had been levied was not applicable to the goods.

While • the Departmnt refused to accept the said plea, the High Court has upheld h. In view of the decision of the High Covrt, the fact that the appellant had paid duty in excess of what they were bound in law to pay should be now taken as having been established. It is not disputed that if the appellants had file, d a suit within the period of limitation the excess amount would have become refundable by virtue of section 72 of the Indian Contract Act. Section 17(1JtcJ of the Limitation Act, !9'63 provides that where in the case of any suit or application for which a period of limitation. is prescribed under that Act, the suit or application is for relieff.rom the consequence of a mistake, the period of limitation shall.not begin to run until the plaintiff or applioont had discovered it or could have with reason able diligence discovered it.

In the instant case the date on which

-~ the mistake was discovered by the appellants or the date on .which the appellants could with reasonabe diligence have discovered it is not clear from the record before us. No efforts also was made in the course of the arguments urged on behalf of the appellants to establish it. We have, therefore, tci assume that on the date

. .

• • j

. \iAI; LABH GLASS WORKS v. UNION (Venkataramiah, J.) 181

each payment of excise duty made by the appellants in excess .of the proper dut:y payable by them, the appellants could have discovered with due diligence that the duty claimed from them was excessive.

Under Article 113 of the Limitation .:\, ct, 19p3. which is applicable to this case, a suit for recovery of such excess duty had to be filed within three years from the date of payment to the Department. But the appellants instead of filing a s\lit, first filed •a writ petition in Special Civil Application No. 1365 of 1976 on September 28; 1976

and that petition had to. be withdrawn in view of clause (3) of . Article 226 of the Constitution as it stood then. because the alter- . native remedy by way of an appeal was available. The appellants couid, therefore, file the writ petition out of which the appeal arises only after the disposal of the revision petition by the Government of India as mentioned earlier. It is not disputed that the High Courts have power, for the purpose of enforcement of fundamental rights and statutory rights~ to make consequential orders for repayment of money realised by the Government without the authority of law under Article 226 of the Constitution. This is an alteniative r.emedy provided by •.he Constitution in addition to but not in supersession of the otdinary remedy by way of suit in the absence of any provision which would bar such a suit. either expressly or by necessary implication. While there are different periods of limitation P.rescribed for the institution of different kinds of suits by the Limitation Act, 1963, there is no such period .Prescribed by law in respect of petitions .filed

un<Jer Article 226 of the Constitution.

Wl'!.ether relief should be granted to a . petitioner. under Article 226 of the Constitution where the cause' of action had arisen in the remote past is a matter of sound judicial, di.scretion governed by the dpctrine of !aches.

Where a petitioner who could have availed pf the alternative remedy by way of suit approaches the High Court under Article 226 of the Constitution, it is appropriate ordinarily to construe that any nnexplained delay in the filing of the writ petition after the expiryof the period of limitatipn prescribed for filing a suit as unreasonable.

This rule, however, cannot be a rigid formula. There may be cases where even a delay of a shorter period may be considerd to be sufficient to refuse relief in a petition under Article 226 of the Constitution. There may also be cases where there may be circumstances which may persuade the court to grant reliet even though the petition may have been filed beyondthe period of limitation prescribed for a suit. Each case has to judged on its own facts and circumstance touhing the conduct or the parties, the change in situation, (he prejudice which is likely to be caused to the opposite party or to the general public etc. In the instant case, the appellants

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G'

E .

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188 SuPRBME COURT REPORTS tl984] 3 s.c.i;

had iit facf approached .the High f:ourt on September 28, 1976 itself by filing Special Civil Application No. 1365 of 1976 for directing repayment of the excess duty paid by them. But no relief could be granted in that petition in view of the provisions of Article 226 of . the Constitution as.it stood then and the petition had to be withdrawn.

Hence qren granting that on the date of making each payment 6f excise duty in excess of the proper duty payable under law, the appellants should be deeihed to have discovered the mistake, all such excess payments made on and after September 28, 1973 whih. would fall within the period of three years prior to the date on which Special Civil Application No. 1365 of 1.976 was*filed should have been ordered to be refunded under Article 226 of the°Constiiu tion.

But the High Court declined to do so on grounds of estoppel and acquiesence. While we do agree that the appellants should not be granted any relief in respect of payment made between October 1, 1963 and Septembr 27, 1973 which would fall beyond three years from the date of the first writ petition filed in this case we do not find it proper and just to negative the claim of the appellants in respeccof excess paymen!S 1llade after September 28, 1973. In the instant case the appellants had ma"de excess payments on being assessed by the Department and such payments cannoJ be treated as voluntary payments precluding them from recovering them. (See Sales Tax. Officer, Banaras & Ors. v. Kanhaiya Lal Mukudlal Saraf).1 We do not also find that the conduct of t!fe appellants is of such a nature as wuld disentitle them to claim refund of excess payments made in respect of goods other than wfred glass.

We, therefore, modify the judgment and order passed by the High Court by quashing -tit~ assessments of excise duty made in respect of the goods in question other than wired glass viz. figured glitss, coloured figured glass, rolled glass and coolex wired glass for •the period between September 28, 1973 and February 20, 1976 also and directing the assessing anthority to make a fresh assessment in accordance with law in the light of the decision of the High Court.

The respond.ents are further directed to refund after such fresh determination any excess duty that may .be found to have been paid by the appellants. The fresh assessments shall be completed

(!) (1959] S. C. R. 1350. •

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within four monhts fro II\ today. The appeal is, however, dismissed in so far it relates ro the claim for refund of excess duty paid in respect of wired glass during that period.

The appeal is accordingly allowed in part. No costs .

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N.V.K.

Appeal_partly allowed.

VALLABH GLASS_ WORKS LTD. & OTHERS

UNION OF INDIA & OTHERS

R.B. MISRA J

Constitution of India

Article 2261

Contract Act 1872

Limitation Act

Article 113

Salt Act 1944

Article 226

Central Excise Department

First Schedule

February 20, 1976

First Schedule

September 28, 1976

First Schedule

section 72

Indian Contract Act

Section 17(1)(c)

Limitation Act, 1963

Article 113

Limitation Act, 1963

Article 226

Qf suits by the Limitation Act

Article 226

Article 226

Article 226

Article 226

CIVIL APPELATE JURISDICTION

Anil B. Divan

Ravinder Narain

Rainu Walia

M. M. Abdul Khader

G. S. Narayan

A. Subhashini

VENKATARAMIAH

High Court of Gujarat

Article 226

Vallabh Vidyanagar

Gujarat

First Schedule

Salt Act, 1944

First Schedule

First Schedule

sections 2(c)

July 27, 1977

Government of India

February 2, 1978

Article 226

First Schedule

February 20, 1979

Gove111ment of India

Febuary 20, 1976

Article 226

First Schedule

section 72

Indian Contract Act

Limitation Act

Article 113

September 28; 1976

Article 226

Article 226

Limitation Act, 1963

Article 226

Article 226

Article 226

Article 226

Article 226

September 28, 1973

Article 226

October 1, 1963

Septembr 27, 1973

S 1

September 28, 1973 and