. '

! 't

S.C~R ..

SUPREllIE COURT REPORTS 1427

and of the Calcutta High Court in. 11Iathurapore 19;5 Zamindary Co. Ltd. v. Bhasaram lllandal(') and lk"-h- 5 ·

/ Prabashinee Debi v. Rasiklal Banerji(') are correct. Juga '' v":'. ara As at present advised, I would like to express no RawC-Otton opinion as to whether the expression "by operation Co. Ud. of law" can be given the interpretation suggested by my learned brother Das, J., as it is uiinecessary to do so in the present appeal. . · · · · · ·. Appeal di;"inissed.

SHIVNANDAN SHARl\IA

. v.

THE PUNJAB NATIONAL BANK LTD.· ·

- -- . [ViviA:N Bos~, JAG~NNADHADAS and SINIIA JJ.]. -. ' . - Master and servant-Banker-Agreement .. between Bank and -

TreasUrers~Treasurers, wheth'e:Y sirvantS or independent - contractors -Cashier appointed by Treasitrer-Whether servant of the Bank.

. ..

I . • ' • • l _ . . , {. • l . The appellant was appoiµted head. cashier in one of the branches of the .respondent Ballk by,'tbe Tfeasurers who .wer_e ~D. charge Qfh6 Cash Department of the Bank by virtue of an agreeffient between them .. The question arose as to whetner the appellant' was' an•: em p!oyee of the Bank. •. ' · . 1 Held, (i) that the tes oi the greeent ciearly showecl that the Treasurers were servants ofthe Bank and not fodependent con~ tractors; and tha~ 1 • 1 t :-" ... ,

(ii) as the direction and control of the appellant ancl of the ministerial staff in charge of tlie Cash Departl!lent of the Bank was ·entirely vested.in:the Bank, the appellanwas an.employee of the Bank. ... . , , . .... . t · , .

If a ma."sier employ"s a srvant and autho.rizes hiin-to eploya number of persons to do a. particular job and -to guarantee_the_ii fide~ lity and efficiency for a cash consideration, the employe8s thUS appointed by the servant would be, equally with the employer, servants

of the master. ... i . ! · ;

Th.e question a3 to whose employe0 a parlicUlar : person'; hi h~~ to be determined with reference to tb6 facts and( circUmstarices 'of each individual case, and among the many sts by which to asr tain who is the employer, the most satisfactory one is to ask who fa entitled to tell the employee the way in which ha is to .do the work upon which he is enga:; ed. · . :

. (1) [192!] I.L.R. 51 Cal. 703.

(2) [1931] I.L.R. 59 Cal. 297.

ImamJ.

March 15

195L

Shicnandan

Sharma v.

The .P-unjab National Barik Ltd.

1428 SUPREME :coURT:REPORTS ,. [1955] ·

' Don6van -V. lAing, Wharton'&·· Down,.COnitruction Syndicate ([1893] 1 Q.B.D. 629) and Mersey.Pocks & Harbour }3oard v . . r; ogginr & Griffit~ (Liverpool) Ltd. (l1947] A.C.I.), referred to. ·

 C1v1L

APPELLATE JuR1so1cnoN : Civil .. Appeal No. 207 of 1954.

Appeal by special leave from the Judgment ' and Order dated the 31st day of August 1953 of the La' bour Appellate Tribunal of India; Lucknow, rn Appeal No. III-57 ot 1953.

A. S. R. Chari (Ba";;; a-Shzv Charan Singh and M. R. Krishna Pillai, with him), for the appellant.

Achhru Ram (Naunit Lal, with him), for the re'- ~~= . . 1955.

March 15.

The Judgment . of the Court was delivered by

S1NHA.

J.'-This is an appeal. by special leave against the orders of · the Lucknow Bench of the Labour Appellate Tribunal of India (hereinafter ·.to be referred to as "The Appellate Tribunal") dated the . 31st August 1953, setting aside the award dated the 13th October 1952 made by . the Chairman, Central Government Industrial Tribunal, Calcutta (herein after to be referred to as "The Tribunal") reinstating 'ihe appellant as the head cashier. with , back salarv under the Punjab National Bank (hereinafter called ... The Bank"). .. .

The facts leading up to this appeal may shortly be stated. The appellant started his service as the head cashier in the Una Branch of the Bank on the 18th June 1949. The Cash Department of the Bank is in charge of Treasurers. The relation between the Bank and the Treasurers . is evidenced by ail agreement d3ted

the 1st May 1944 (Ex. 1) which will be noticed in detail hereinafter~ That was an agreertrent between the Bank ·'and "Messrs Rai Bahadur Karam ' Chand Puri & Bros". That firm was appointed the Tr.casurers at the head office .of the Bank -and other places iri and outside the Punjah. On the 28th Septemhcr-1951 the District Manager of the Northern Circle of the Bank wrote a letter (Ex. 4) to the Treasurers bforming

.• v'

- '

...

them that it had been decided to close the Una office of the B, mk with effect from the dose ot business on the 3rd November 1951.

In pursuance of that letter the Treasurers intimated by a letter . dated 2nd October 1951 enclosing a copy of Ex. 4 to the . appellant that the l.Tna Branch of the Bank will .ceae to function .from the close of business on the 3rd November 1951 and that . his services will not be required after that date.

The Punjab National Bank Employees' Union (P_unjab) took .. up .the cause of the appellant . as .also that of .other employees . and made representations to the Government of India. . The Government of India by a notification No. SR0-432

dated the 8th March 1952 published in the Gazette of India, Part II-Sec .. 3, in exercise of !ts .powers _under section 10 of the Industrial Disputes Act XIV of 1947 (hereinafter called the Act) referred . the . industrial dispute between . the Bank and its workmen named in . schedule : 2. (concerning . workers dismissed) and schedule 3 (relating to workers transferred) for adjudication to the Industrial Tribunal at Calcutta con_. stituted under section 7 of the Act. Schedule 1 in so far as it is necessary for purposes of this .case contains the following points of disp1Jte between the employer and the workmen :.....::. . . . . "L . Wrongful dismissal of the .workmen mentioned iii. schedule II and their reinstatement.

"2.

In .the event of any order for reinstatement payment of wages and other allowances from the date of dismissal to the date of reinstatement" .. l The appellant is No. 5 in schedule 2 aforesaid. The Tribunal gave its award on the 13th October 1952 in respect of a number of employees whose . cases were actually .in controversy before it. It is only necessary to refer to the award in so far as it concerned the appellant. After overruling the preliminary objec• tion of the Bank .that the Union had no locus standi to represent the appellant the Tribunal' formulated the following point for its decision :- .

"On merits themain point . involved . is . as . to whether the services of an cmployey of ... the Cash

Shirml ur!rm

Shmmn

'\(· The Punjab

ational B. nk Ltd ..

Sinhr .:I

1430 : SUPREl\IE.COUR'f REPORTS [1955]

f9ss Departnien t can be terinliia ted on a change made in .the services oftheContractor Cashier".

Shi'flnandais ' - Sharma 'It answered this point in these words:-

v. •: .: "This point has been agitated in more than one The Punjab - case and I have also held in Reference No. 3 of 1951 Nati<mazBankI.td •. Ch . . f I d t . 1 T "b I (P N B . k d" _ _ as _ airman o n us na n una . . . an is-

Sinha J; pute) relating to 5 cashiers that the employees of the .--- Cash Department are the employees of the Bank and not the. nominees of the Contractor Cashiers so far service conditions are concerned, and I think it will serve no useful purpose to discuss all the legal prece- dents cited, more especially when the point has been .set at rest by their Lordships of. the Supreme Court

in Civil Appeal No. 66 of 1952 in tlie matter of United .Commercial Bank Ltd. v. Secretary, U. P. Bank Employees' Union and Others. I am of the opinion that the dismissal of Shi-i Sharma was wrongful and liable to be set aside.·· Now the normal remedy is reinstatement and I have no hesitation in allowing the same: He will also be paid his back salary and allO\".ance from the date of dismissal to the date of reinstate- 'ment". •-. \Vhatever may be the merits of the answer given • to the question propounded by the Tribunal, there is no doubt that the question posed had been wrongly framed. The discharge' or dismissal of the appellant had nothing to do with the change in the personnel ofthe Treasurers. The appellant's services were dispensed with on the ground that the Una Branch where he was employed as head cashier being an un- .ecc; momic unit had to be closed and that therefore the

, appellant's services_were no more required.. TJ.ic rcs- .pondent's case appears to have been. that the firm known as l\Iessrs R. B. Karam Chand Puri & Bros . . have been contractors for the Cash Department of the _Bank at the head office and some of the other offices in the Punjab and beyond; that from time to tim.e agreements were executed between the Bank and the aforesaid firm; that the last agreement was executed on the 1st l\Iay 1954 (Ex. I); that . the appellant .according to the respondent-Bank was the nominee of the said firm, and that his services had been dispensed

1955

s ivnandan

Sharma

v. 1"he Punjab

~Y tional Ba_nk Ltdi

s_inha J.

SUP-REME CQUR'F REPORTS [1.955]

award: hy the .Tribunal was,. in the. result, set:::aside , and the .Bank?s appeal ._allowed.,• , . , , ; The appellant in "this: Courtthrough his • counsel Shri 'Chari,- argued that' the Appellate Tribunal had

misinter-preted the provisions of the. Industtial Disputes -Act in coming, to the conclusion that the Tribunal had nojurisdiction to entertain the-dispute simply, on the . ground that one of the parties to the: dispute had successfully denied .. the relationship; of : employer and employee; "that the Appellate Tribunal misconceived its functions- -by basing its ; findings: .on the interpretation of the: :written agreement . between the Bank and its Treasurers ; when - it :should. have gone inro all the relevant .facts to -determine the substance oi. the matter; -and finally; :rhat: the Appellate Tribunal mlsdiretted. itself on<the question of the interpretation of the agreement for coming : to the conclusion that the appellant was not :an employee of the Bank but was a nom'inee' of' the "Treasurers"; It' was further argued on behalf· of -the 'appellant tliat •the :Tribunal having based • its dicisicin on its ' previous award dated the 16th September . 1952 in Reference No ... 3 of 1951 between' •persons 'IIlOre or less -in the same .. position as the•• appellant•· and the respondent-Bank, . 'in the background of the decision• of the previous Tribunals,· e.g., the award' ' of the Conciliation Board preside-cl over by Mr. Justice ' Bind Basni Prasad of the Allahabad High Court,· the awardby the Tribunal presided over by Mr. K, C. Sen. and the award of the All India Ii:tdustrial Tribunal . (Bank Disputes);• presided over by Sri

S. Panchapagesa Sastri and the award dated the 24th March 1951 in Reference No: 20, the award of the Tribuna} was really final: The -argument was that the award of the Tribunal was . based: on considerations :of facts ' and · c'ircurnstarices disclosed in those earlier awards· to: which the Bank and': its cashiers and other employees : employed in the Cash Department were parties:· It was thus a •final finding of fact which was not open 'to appeal.:before the Appellate Tribunal.

It. was therefore contended' that the Appellate Tribunal had no jurisdiction to etitertain the appeal . and . to reverse the award of the Tribunal. "'

I ;

On behalf of the respondent-Bank it was contended that no specific grounds had been taken either before the Appellate Tribunal or in the memorandum of appeal to this Court that the Appellate Tribunal had no jurisdiction on the ground now taken by the appellant in this Court, nor was that ground taken in the statement of case. On merits it was .contended by the respondent's counsel that the Tribunal is as much bound by the rules of evidence and procedure as any other Tribunal and as the Tribunal had not addressed itself to the question whether the cashier-appellant was an employee of the Bank, the question was open before the Appellate Tribunal which was competent to pronounce -on that basic question. Finally it was argued that on a true construction of the provisions of the agreement (Ex. I) this Court should accept the finding of the Appellate Tribunal that the appellant was not an employee of the Bank and that on that account the Tribunal had no jurisdiction to grant ahy relief to the . appellant. . ·

On behalf of the respondent the case was practically rested on the construction of the agreement (Ex. 1).

With reference to the terms of the agreement . the learned counsel for the respondent argued that the Treasurers . were not servants or employees of the Bank but were "independent contractors" and that the appellant and other employees in the Cash Department having been nominees . of the "independent contractors", there could not be any relation of employer and employee between the Bank and the appellant.

It is therefore necessary to examine in some detail the terms of the agreement aforesaid. We set out below, underlining important words, the terms of the agreement in so far as they are relevant for the determination of the true relation between the Bank and the Treasurers. Though this agreement is dated the 1st May 1944, cl. (1) provides that it will be deemed to have commenced and come into force from the 15th March 1942, the date of the death of R. B. Karam Chand Puri and will take the place of the previous agreement dated the 26th July 1941, thus maintain. ing the .continuity of the relationship between the

Shivnandarr

Sharma

The Punjab National Bank [, t,/

Sinha J.

1434 SUPREl\IE.COURT REPORTS [1955)

' - t9ss Bank and the Tr!lasurers'. Theagreement provides that the Tceasurers.sbal.l diligently and 'aith'ully serve Shivnandan J' "J Sharma the Bank at the Head Office and its various offices

T. mentioned in schedule A attached to and forming part The Punjab of the agreement and at 9ther offices where they may NationalBankUa. hereafter be appointed treasurers and shall in all res-

Si,.haJ. _ pects diligently and faithfully obey and observe all lawful orders and instructions of_tbe Bank or the person placed by the Bank in authority over them in rela~ tion to the due discharge of their duties as Treasurers.

The Treasurers in addition to the duties, liabilities and responsibilities devolving upon them by virtue of the provisions oftbe agreement shall also be liable to perform such duties and discharge such responsibili~ ties as by custom usually devolve on treasurers in the employ of a bank._ The Treasurers shall be -paid_ for their services a remuneration as µientioned in schedule A aforesaid or such remuneration as the General Board of Directors of the Bank may de'termine from time to time. Out of the remuneration paid to tbeni by the Bank the Treasurers shall pay salaries to their nominees employed by them for performing the duties of. a cashier in the Bank on their behalf or other functionaries of a similar nature. The salaries of such nominees employed by them will be fixed by the Treasurers themselves but the same will be subjeet to the approval of the Bank. The remuneration of the Treasurers will-.. be tbenet amount which will-be left to them after paying salaries to their nominees employed by them for working as cashiers, etc. The Treasurers themselves will not be entitled to any kind of allowances besides the net remuneration as aforesaid but their nominees or working cashiers will be entitled to allowances which the authorities of the Bank may sanction for members of . the staff from (ime to time. The Treasurers -shall employ the number of men at each office as mentioned iri schedule A.aforesaid. The Board of Directors shall have the power to increase or decrease the number of their nominees for any particular office and the amount of rem unera ti on fixed for that office. The Trea- . surers.' shall be responsible for the due safety, both within and outside the premises of the B:mk at any

s:c.R. :SUPREME •COURTiREP, OR'fS . 1435

:Office pfacoo 1:t!llde; r their charge, of' all mOfley, , •specie,

ornaments, .. bullion, •cash, etc. :and "; cif other aluable documents received by them for :arid . on behalf. of the Bank .or from the 'Bank and shall be answerable to the Bank for all fosses occurring either inadvertently or :by or through the .negligence .or misconduct of the Treasurers . or :any of their nominees .. The Treasurers shall be entitled to resign the services of the Bank by •giving three calendar months' notice to the Bank.

The Bank shall also be entitled to dispense with the Treasurers' .services on giving three . months' notice.

In case of gross :negligence or misconduct or of any fraud, .misappropriation or embezzlement by the Treasurers or any of the nominees in the discharge of .their duties as such Treasurers, no notice shall be

necessary and the Bank shall have the right to dispense with their services forthwith. The Bank shall have the right to take the Treasurers into the servioe of the Bank after settlement of remuneration with :the Treasurers at any other office or offices of the Bank. The Treasurers and their nominees shall obey all the orders, rules and .regulations prescribed by the Ban•k with regard to the discharge of their duties by the cashiers :as well as with regard to the amount of balance they are allowed to keep with .them. It shall be the duty .of the cashiers to inform the manager of the Bank as soon as .the balance in hand exceeds the prescribed limit .and to ask for orders on the point. 'The Treasurers shall not engage any person as their assistant or peon about whose character, conduct or reliability the manager of the Board of Directors of the Bank may . have any objection. The Treasurers shall also arrange that no person under employment absents himself from duty withol.lt the written permission of .the manager . for the time being. If any such employee is absent without leave, or , he is turned out on the objection of. the , Board or the . Managr, the Treasurers shall. forth'Yith . app9int a substitute in his place.

The Treasurers shall be responsible for.:. the .1 acts and defaµlts .of all . their . n0mi1,1ees.

The .. Treasurers and , thefr nominees .. shall be.·:entitled to travelling allotJ!ancf] .according to . .rates. s~<; tioned ., py the , Board

~9li5

.. Shivnandan

.ShlJTfllfl

V.

T:he Pu, Yab .Jlofltional Bank J. td,

Sinha J.

Shivnandan

Sharma

"· The Pury'iih National Bank Ltd.

Sinha ].

of Directors of' the Bank. The Treasurers_ have de- . posited security of the value of Rs. 15,000/- on which they shall be entitled to receive interest at the rate of 3! per cent. per annum. As a further security for the due performance of the terms and .conditions of the agreement as -a cover for loss that may be caused to the Bank by. any act or omission of themselves or any one of their nominees, the Treasurers hypothecated properties as per . schedule C attached . to and forming part of the agreement. Schedule A aforesaid contains the names of the offices, the monthly remuneration of the Treasurers in respect of each one of those offices separately, net savings of the Treasurers after paying the salaries of the total number of men . including cashiers, etc., as stated against each one of the offices.

Apart from the terms set out above bearing on the relation between the Bank and the Treasurers, some of which apply equally to their nominees, the following terms of the agreement bear directly on the relation between the nominees of the Treasurers, like the appellant, and the Bank. In this connection the agreement provides that the Board of Directors shall have the power to increase or decrease the number of the Treasurers' nominees for any particular office and the amount of remuneration fixed for that office.

Such nominees shall be entitled as servants of the Bank to any bonus which may from time to time be declared for the members of the staff. The bonus of the Treasurers shall be limited to the amount of their own net remuneration and no further. They shall not be entitled to any bonus to which their cashiers are not eligible under the rules of the Bank. The nominees of the Treasurers shall be entitled to participate as ordinary members of the staff in the provident fund constituted by the Bank. Such nominees shall also be entitled to travelling allowance according to rates sanctioned by the Board of Directors of the Bank whenever they are required to go to out-stations on bank business.

From the terms of the agreement. aforesaid set out above almost verbatim omitting such clauses and words as 'are not relevant to this case, it will appear

\ ·•

-1,

that the Treasurers are under the employment of the Bank on a monthly basis for an indefinite term, that is to say, until such time as either party to the agreement terminated it in accordance with the terms quoted above. They are under the complete control and direction of the Bank through its manager or other functionaries. The Treasurers have to take their orders from day to day as regards the cash balance or other cognate matters relating to the safe custody of cash, valuable documents, etc. belonging to the Bank or its constituents. The Treasurers receive in respect of each office under their charge a certain named sum out of which they have to pay the salary of a stated number of their assistants who may be head cashiers or cashiers or assistant cashiers and other such functionaries. They are entitled to receive bonus on the net amount secured to them as their remuneration, being the lump sum fixed in respect of each office, minus the salary of the assistants. It is true that these Treasurrs are not and cannot be expected to be personally present to discharge their onerous duties at each one of the large number of offices spread over the Punjab and outside. Naturally they had to be authorized to engage head cashiers, cashiers, or assistant cashiers in respect of each of the offices placed in their charge. They had to guarantee the fidelity of the persons so employed as their assistants. Those assistants had to be persons in whose reliability, honesty and efficiency both the Bank and the Treasurers had confidence. The Treasurers have the right to nominate those assistants but the Bank had the final words in the choice. The Bank Manager has complete control over such nominees in the matter of leave of absence, discipline and conduct in the discharge of their duties as assistants managing the cash and other valuables in the custody of the Bank. From the very nature of things it had to be a dual control in the sense that the Treasurers had to nominate the assistants who are to discharge those responsible functions in connection with cash and other valuables of the Bank and the Bank could not abdicate its powers of full control over the day to day working ot

17-90 S. C. India/59

195.S

Shivnandan

Sharma v.

The Punjab National Bank Ltd.

Sinha J.

Shiunandatt

Sharma

The Punjab Jfational Bank Ltd.

I Sinh~ ].

the Cash Department. The nominees of the Treasurers are treated on the same footing as the other servants of the Bank in the matter of bonus, travelling allowanc.e and provident fund, etc. It is true those nominees are. to be paid by the Treasurers but it is out of the. money provided by the Bank.

It is not always. easy to determine.whether the relation between two parties, in the present case of the Treasurers vis-a-vis the Bank, is that ' of servants to a master or of independent contractors who have undertaken to do a particular job for their employer.

The question has generally arisen in connection with the determination of vicarious liability of an employer in respect of .acts done by his agent (using a neutral word which includes an independent contractor as also a servant). The distinction between a servant and an independent contractor has been the subject matter of a large volume of case-law from which the text-book writers on torts have attempted to lay down some general tests. For example, in Pollock's Law. of Torts,*. the distinction has thus been brought out:

"A master is one who not only prescribes to the workman the end of his work, but directs or at any

moip.ent may direct the means also, or, as it has been put, 'retains the power of controlling the work', a servant is a person subject to the command of his master as to the manner in which he shall do his work .... An independent contractor is one who undertakes to produce a given result but so that in the actual execution of the work he :is not under the order or control of the person for whom he does it, and may use his own discretion in things not specified beforehand ................ ".

Clerk & Lindsell on Torts (11th Edn.) at p. 135 have adopted the description of an independent contractor given by Pollock as quoted above.

In the 11th Edn. of Salmond's Treatise on the Law of Torts, the same distinction has been clearly indicated in the following passage a~ p. 98:-

- *Pages 62 & 63 of Pollock on Torts, 15th Edn.

.._,

"What then, . is the test of . this distinction between a . servant and an independent . contractor? The test IS the existence of a right of control .over the agent m respect of the manner in which his work is to be .done. A . servant is an agent who works under the supervision and direction of his employer; an independent contractor IS one who IS his own master.

A servant IS a person engaged to obey his employer's 9rders from time to time; an independent contractor is a person engaged to do certain work, but to exercise his own discretion as to the mode and

time of doing it-he IS bound by his contract, but not by his employer's orders".

Those learned authors have discussed m great detail cases illustrative of those distinctions, indicating the circumstances in which the general rule has been applied to individual cases with such modifications as the facts and circumstances of a particular case required. We are here not concerned with those mce distinctions which have been drawn m connection with the rule of vicanous liability in torts. We are here concerned only with the question how far the test laid down by the standard authors as' quoted above can be applied to determine the present controversy whether the Treasurers of the Bank were its servants as contended on behalf of the appellant or independent contractors as claimed on behalf of the respondent-Bank. The agreement between the parties, as summarised above, IS a composite transaction constituting the Treasurers agents of the Bank, the former agreemg to indemnify the latter against any los occasioned to the Bank due to the lack of fidelity and efficiency of the ministerial staff entrusted with the charge of the Bank's cash and valuable documents.

The Treasurers have been charged with the duty of nominating their assistants who are to be responsible m their day to day work to the Bank which all the time has full control over them in the matter of their leave of absence, as to how they shall keep the cash and other valuables and as to how they shall be under the general direcion of the Bank's manager or some

Shivnandan

Sharma v.

The Punjab National Bank Ltd.

Sinha ].

Shiv1Uf1J.{/O.n

Sha,.ma

The Punjab.

National Bank Ltd.

Sinha J.

other functionary who may be nominated by the Bank to supervise the work of the Cash Department.

The Bank makes itself answerable to the employees thus appointed by the Treasurers with the concurnonce of the Bank for their bonus, provident fund and travelling allowance. For those purposes these assistants are to be on the same footing as the other employees of the Bank.

It was contended on behalf of the respondent Bank that its agreement with the Treasurers shows that the latter had the fullest responsibility for the appointment and dismissal and payment of salary of the employees in charge of the Cash Department of the Bank and that therefore the Treasurers could not but be independent contractors.

It has already been noticed that the appointment of such assistants as are entrusted with the work of the Cash Department is not under the absolute power of the Treasurers.

The appointment has to be approved by the Bank and the Treasurers cannot continue to employ those workmen in whose fidelity and efficiency the Bank has no confidence.

Hence both in the matter of appointment and dismissal of the employees the Bank reserves to itself the power to give direction to the Treasurers. Similarly in the matter of the payment of salary the money comes out o.f the coffers of the Bank, though it may be paid by the hand of the Treasurers. In this connection it was contended on behal£ of the appellant that payment of salary of the employees in the Cash Department is made through the Bank itself but we have no tangible evidence in this case beyond the bare assl!rtiOn at the Bar. But, in our opinion, the situation in respect of the appointment, dismissal and payment of salary of the employees of the Cash Department is analogous to that of the employees of a particular department of Government, in which appointment and dismissal of ministerial staff may rest with an authority so empowered by the head of the department. Payment of salary may also be made by the appointing authority but the money comes out of the Government treasury. In those Circumstances, can it be rightly asserted that

' ·-

those employees are not the servants of Government?

The analogy may not be perfect, because, in the present case, the appointment and dismissal of the employees of the Cash Department IS the joint responsibility of the Bank and its Treasurers. It has got to be so because the Treasurers are the guarantors of the fidelity and efficiency of the employees and the Bank has to exercise complete control over the day to day discharge of their functions because it Is the Bank which is vitally and immediately concerned with the efficient and honest discharge of the duties of the assistants in the Cash Department, the efficient running of which is the most important of a bank's functions.

It will further be noticed with reference to the terms of the agreement set out above that whereas the Treasurers and their nominees have to take their orders from the Bank Manager or other such functionary, there Is no specific provision that those nommees shall discharge their day to day functions under the direct control of the Treasurers or that they will be subject to the immediate control of the Treasurers m the discharge of their daily duties and in the matter of the grant of leave of absence. There

rnuld not be such a provision, as a dual control of that kind in the daily work of the employees would lead to a great deal of confusion and lack of discipline amongst the ministerial staff.

The employees of the Cash Departmen~ have of necessity to be under the direct control of the Bank Manager or of some ::>ther functionary appointed by the Bank. It is the Bank which has undertaken the responsibility m the matter of their pay and prospects m the service and naturally therefore, such employees, even as other employees of the Bank, have -to take their orders from the Bank. It must therefore be held that the Treasurers are the servants of the Bank and that their nominees must equally be so.

The Appellate Tribunal held that on a reading as

~ whole of the clauses of the agreement aforesaid the appellant was an employee of the Treasurers and not of the Bank. It did not address itself pointedly

Shivnandan

Sharma

The !'u, Yab National Bank Ltd.

Sinha J.

Shivnandtu1

Sharma v.

The Punjab National Bank Ltd.

Sinha -J.

i:o the question as to what was the exact relation between the Bank and the •Treasurers.

It did not also consider the question as tO what would be the position of ' the employees of the Cash· Department

vis-a-vis the Bank if it were held that the Treasurers themselves were the servants : of the Bank and . not independent contractors.

Before the Appellate Tribunal 'both parties appear to have. concentrated their attention on the question as to whether the employees of the Cash· 'Department were . servants . of" the Bank or of the Treasurers. In our opinion,. that was not a correct approach to. the determination of the controversy between the parties. ·. If the Treasurers' relation to the Bank was that of servants to a master, simply because the servants were authorized to appoint and dismiss the ministerial staff of the Cash Department would not make the employees in the Cash Department independent of the Bank. In that sittiation the ultimate employer would be the Bank through the agency of 'the Treasurers. jt was argued on' behalf of 'the respondent that even if it were held that ·the Treasurers were the servants of: the. Bank and . not independent contractcirs; the. legal position of the employees of the Cash Department vis-a-vis the Bank would be the same;· namely, that they will be in· law the :servants of the Treasurers. In our opinion, there is no substance 'in that contention. .If . a master employs' a servant and authorizes him to employa number of persons to do a particular job and to guarantee their fidelity and efficiency for a Tash consideration, the employees thus appointed by .the .. servant 'Wou!O'beequal!y•with the employer;: servants of the master. 'It is not -always correct to say that persons appointed and liable to be dismissed: by : an in dependent contractor can -in no circumstances •be . the employees of the third party. This would be ·· clear from the following observations of Lord Esher, M.R., in the case of Donovan v. Laing,' Wharton & -Down Construction Syndicate(1) :~ , . . . . . ,. "It -is . true that .the defendants,. selected the man and paidhis.wages; and these are .circumstances which, if .nothing •else intervened;• wouldbe.strong'to. show (1) [18~3] t n. B. D629 at 632.

that he. was the servant of the defendants. So; indeed, he was as to a great many things; but as to the working of the crane he was no longer their servant, but bound to work under the orders of Jones & Co., and, if they saw the man misconducting. himself in working the crane or disobeying thei.r orders, they would . have a right to discharge him from that employment?'.

Those observations have 'been approved in the latest decision of the House of Lords in the case of Mersey Docks & Harbour Board v. Goggins & Griffith (Liverpool) Ltd.(1).

The House of Lords distingllished that ruling on facts but did not depart from the general rule laid down in the earlier decision that the determinative factor is as to which party had control . over the workers· as to how they would do their job from day to day. Lord Macmillan in his speech at p. 14 has observed as follows :- "Many reported cases were cited to your Lordships but where, as all agree, the question in each case turns on its own circumstances, decisions in other cases are rather illustrative than determinative.

So far as attempts have been made to formulate a criterio:1 of general application, it cannot be said that these attempts have been very successful".

It would thus appear that the question 4s to whose employee a particular person was has to be determined with reference to the facts and circumstances of each individual case. . Lord Porter in the course of his speech in the reported case (supra) at p. 17 has observed as follows :-

"Many factors have a bearing on the result. . Who is paymaster, who can dismiss, how long the alternative service lasts, what machinery is employed, have all to be kepf in mind. The expressions used in any individual case must always be considered in regard to the subject matter under discussion but amongst the many· tests suggested I . -think that . the most satisfactory,· by which to ascertain who is the employer at any particular time, is to ask who is entitled to tell the _employee th.e way in which he is to do the work upon which he is engaged" ..

(1) [1947] A.C. I,

Shivnatrdan

Sharma

The Punjab National Bank Ltd.

Sinha :J.

1955 Shivnandan

S!iafrrid

Ti,, Punjqb National Bahk l.Jd.

Sinha J.

March 15

As indicated above, in the present case the direction and control of the appellant and of the ministerial staif in charge of the Cash Department of the Bank was entirely vested in the Bank through its manager or other superior officer. We have therefore no hesitation in differing from the conclusion arrived at by the Appellate Tribunal and in holding that the appellant was an employee of the Bank. That being so, the Tribunal had the jurisdiction to make the directions it did in respect of the appellant. The respondent did not at any stage of the proceedings challenge the orders of the Tribunal on its merits.

That conclusion being reached, there is no difficulty in upholding the orders of the Tribunal in respect of the appellant, It is therefore not necessary to pronounce upon the other points raised by the parties.

The appeal 1s accordingly allowed with costs throughout.

BHIM SEN

ti.

Appeal allowed.

THE STATE OF U.P.

[VIVIAN BosE, JAGANNADHADAs and SINHA JJ. J

U. P. Panchayat Raj Act, 1947 (U. P. Act XXVI of 1947), ss. 49 (1)(2)(4), 52, 55-Rule 84 framed by Stat< Government-Thef' of the value of Rs. J..().0_ committed by three accused-One of the accused belonging to Madhya Pradesh State-Panchayat Ada/at constituted under the provisions of s. 49 of the Act and Rule 84 framed there

under to try the present case-Whether could be properly constituted -Rule 84-W hether Intra vires-/urisdiction of ordinary courts-

JJ/hether excluded-Bar under s. 55---Scope of.

Three accused were c.onvicted by a Magistrate under s. 379 of the Indian Penal Code of the offence of theft of the value of Rs. 3 and sentenced to a fine 0£ . Rs. 25 /- each. The question for determination was whether te case should have been tried by a Panchayat Ada:lat cortstituted under the U. P. PanchaYat Raj Act,

1947 and the Magistrate had no jurisdiction to try it. Two of the accused belonged to U.P. State and the third belonged to Madhya Pradesh State.

Section 52( I) of the Act provides that certain specified offences (including the offence of theft when the value of stolen property does

Calcutta High Court

SHIVNANDAN SHARl\IA

THE PUNJAB NATIONAL BANK LTD

.P-unjab National Barik Ltd.

A. S. R. Chari

Shzv Charan Singh

M. R. Krishna Pillai

Achhru Ram

Naunit Lal

Punjab National Bank

1st May 1944

Rai Bahadur Karam ' Chand Puri & Bros

Punjah

28th Septemhcr-1951 the

Punjab National Bank Employees' Union

Government of India

section 10

Disputes Act XIV of 1947

Industrial Tribunal at Calcutta

workers dismissed) and schedule 3 (relating to workers transferred) for adjudication to the Industrial Tribunal at Calcutta con.

section 7

Schedule 1

13th October 1952

Sinha

Supreme Court

Shi-i Sharma

Punjab

have been contractors for the Cash Department of the Bank at the head office and some of the other offices in the Punjab and beyond; that from time to tim.e agreements were executed between the Bank and the aforesaid firm; that the last agreement was executed on the 1st l\Iay 1954 (Ex.

Sharma

Punjab

Bind Basni Prasad

Allahabad High Court

K, C. Sen.

S. Panchapagesa Sastri

R. B. Karam Chand Puri

Punjab National Bank

Pu, Yab .Jlofltional Bank

Sinha J.

Shivnandan

Sharma

Shivnandan

Punjab National Bank Ltd.

Sinha J.

Shiunandatt

Sharma

Punjab Jfational Bank Ltd.

Pollock

Clerk

Lindsell

Salmond

of Salmond's Treatise on the Law of Torts, the same distinction has been clearly indicated in the following passage a~ p. 98:-
*Pages 62 & 63 of Pollock on Torts, 15th Edn.

s 9

Punjab.

National Bank Ltd.

Esher

Macmillan

Porter

S!iafrrid

BHIM SEN

STATE OF U.P.

VIVIAN BosE

JAGANNADHADAs

SINHA

Panchayat Raj Act, 1947

ss. 49

s. 49

s. 55

s. 379

Indian Penal Code

PanchaYat Raj Act

U.P. State

Madhya Pradesh State

Section 52( I)


1955 Shivnandan

S!iafrrid

Ti,, Punjqb National Bahk l.Jd.

Sinha J.

March 15

SUPREME COURT REPORTS (1955f

As indicated above, in the present case the direction and control of the appellant and of the ministerial staif in charge of the Cash Department of the Bank was entirely vested in the Bank through its manager or other superior officer. We have therefore no hesitation in differing from the conclusion arrived at by the Appellate Tribunal and in holding that the appellant was an employee of the Bank. That being so, the Tribunal had the jurisdiction to make the directions it did in respect of the appellant. The respondent did not at any stage of the proceedings challenge the orders of the Tribunal on its merits.

That conclusion being reached, there is no difficulty in upholding the orders of the Tribunal in respect of the appellant, It is therefore not necessary to pronounce upon the other points raised by the parties.

The appeal 1s accordingly allowed with costs throughout.

BHIM SEN

ti.

Appeal allowed.

THE STATE OF U.P.

[VIVIAN BosE, JAGANNADHADAs and SINHA JJ. J

U. P. Panchayat Raj Act, 1947 (U. P. Act XXVI of 1947), ss. 49 (1)(2)(4), 52, 55-Rule 84 framed by Stat< Government-Thef' of the value of Rs. J..().0_ committed by three accused-One of the accused belonging to Madhya Pradesh State-Panchayat Ada/at constituted under the provisions of s. 49 of the Act and Rule 84 framed there

under to try the present case-Whether could be properly constituted -Rule 84-W hether Intra vires-/urisdiction of ordinary courts-

JJ/hether excluded-Bar under s. 55---Scope of.

Three accused were c.onvicted by a Magistrate under s. 379 of the Indian Penal Code of the offence of theft of the value of Rs. 3 and sentenced to a fine 0£ . Rs. 25 /- each. The question for determination was whether te case should have been tried by a Panchayat Ada:lat cortstituted under the U. P. PanchaYat Raj Act,

1947 and the Magistrate had no jurisdiction to try it. Two of the accused belonged to U.P. State and the third belonged to Madhya Pradesh State.

Section 52( I) of the Act provides that certain specified offences (including the offence of theft when the value of stolen property does

.~·

not exceed Rs. 50 /') shall be cognizable by a Panchayat Adalat.

Section 55 provides that no court shall take cognizance of any case which is cognizable under the Act by the Panchayat Adalat.

Section 49 provides: "49(1) The Sarpanch shall, for the trial of every case, form a bench of five Panches from the panel referred to in s. 43.

(2) Every such bench shall include one Panch who resides in the area of the Gaon Sabha in which the complainant of a case resides and likewise one Panch in the area in which the accused resides and three Panches residing in the area of the Gaon Sabha in which neither party resides, provided that in police cases one Panch shall be such as may be residing in the Gaon Sabha in which the offence was committed, one Panch residing in the area of Gaon Sabha in which the accused resides and three Panches residing in the areas other than those mentioned above".

Rule 84 framed by the State Government under s. 49(4) of the Act reads as follows :-

"For the purposes of trial or decision of any case or proceeding parties of which are residents of different circles or different districts or any one of the parties iJ a resident of a place not governed by the Act, the prescribed authority having jurisdiction over the Panchayati Adalat in which a case or proceeding is instituted or transferred for disposal shall constitute a special bench consisting of Panches of the said Panchayati Adalat and if convenient and possible may include a Panch of the other circle and shall appoint one of them as Chairman of the bench unless the Sarpanch is a member of it".

Held that inasmuch as in the present case one out of the accused belonged to Madhya Pradesh it was not possible to constitute a bench in strict compliance with s. 49(2) of the Act to try his case. Section 84 in so far as it relates to the constitution of a special bench where one of the parties belongs to a place outside the State Qf U. P. is ultra vires.

Hence no competent bench could be constituted under s. 49. of the Act for the trial of the presnt case in which there were three accused one of whom was a person belonging to a different State.

Under the circumstances the jurisdiction of the ordinary courts was not excluded.

Exclusion of jurisdiction of a court of general jurisdiction, can be brought about by the setting up of a court of limited jurisdiction, in respect of the limited field, only if the vesting and the exercise of that limited jurisdiction is clear and operative.

The bar under s. 55 of the Act relates to the case as a whole arid has reference to the entire proceeding in respect of all the accused together.

CruMtNAL

APPELLATE JuRISDIGTION: Criminal Appeal No. 22 of 1954.

Bhim Sen . v.

The State of U. P.

"955

Bhim.Sen

"· The State of U. P;

Appeal under Article 134(1) (c) of the Constiruc tion from the Judgment and - Order -dated the. .-27th October 1953 of the Allahabad High Court in Criminal Reference No. 121 of 1953. - _ _

K. P. Gupta.and A.D. Mathur,' for the appellant.

-K. B. Astliana ai).d c . .P. Lal, for the resp0ndertt. 1 . ' . . . . . . , ' . ' . ' ' ~

1955. 'March' 15. The - Judgment -of the -Court wasdelived by ·

jAGANNADHADAS' J.'-'This is an appeal ' by -leave granted . by the -High Court 'of Allahabad presumably under artide 134( 1) ( c) of the Constitution. The facts are simple.

Three persons including, the appellant were, at the -material time, pared porters af the railway station Manikpur in the district Bartda of Uttar Pradesh. Qn the night 'of the 18th June, 1952, they we; e fotinCl by two waichi'nen of the Watch 'and Ward staff -attached to the railw_ay stati@, .cominitti1).g' theft of certain packets of biscuits. by breaking open a rail- W?Y parcel containing those packets, which as parcel porters, - they had occasion to handle. First information of the same w:is lodged,_ before the u!J-Ispector, Railway Police, by one Ra!Il Prasad, Head Watchman_, The Raiiway Police. _filed the charge~; heet . under section- 379 of the . Indian Penal Code on the 20th June, 1952, - The case was taken -cognizance of by the Railway Magistrate, Manikpur. All the three accused

plead~.d guilty: They _ were convieted by the Magistrate on the; 15th' July, 1952, .and' sentencea to

7 a fine_ of Rs. 25 each. Against this convicti0n the .. present appellant, filed a revision_. to the Sessions . , Judge of Banda.

It is necessary at this stage to meRtion . .that . under the . U. P .. P.anchayat Raj . Act, .1947, . the . Panchayati Adalats in" U.P.. have, criminal- .jurisdiction " in certain matters'; The point taken •before the Ses- - sions T udge was that' by virtue of the said Act, the

presnt '. case should _ have - been tried -•by -the' 'Panchayati Adil.lat' and that the Railway Magistrate had - no jurisdiction. This contention was _ accepted by the learned Sessions JuClgc: 'He accorqirigly made a reference to the High Court for quashing - the conviction

and sentence. It came before a Single Judge of the High Court who did not feel quite satisfied that the Railway Magistrate had jurisdiction.· But without deciding the question ' ohe way or the other, he declined to accept the reference on the ground that the revisional jurisdiction of the High Court was discretionary.

Somewhat curiously however, the learned Judge granted a certificate against his - own judgment that the case is a fit one forappeal to .the Supreme Court. If the learned 'Judge thought fit to grani: leave to appeal, he might well have himself decided the question involved so that we should have had the benefit of his consideration of the same.·

-To dcide the question of jurisdiction ths raised it is necessary to, , notice the scheme of the U.P. Panchayat, Raj At, 1917 (U.]J. A, ct XXVI of 1947) (hereinafter referred to_ as the. Act) and a few relevant sections. 9f the. sall1e. "It. -may be mentiOned' that the Act appears. to have , undergone some _ amendments in the ypr 1952 and . recently .in

1955. _ These .amendments have .no _application to the present case. Under the Act, . as it stood at the time of i:he commission of the o#ence _ and . the conviction therefor, the scheme thereunder is as follows : Under 'section 3, the ·. State Government shall; . by : . notification . in the official Gazette, establish . a Gaon Sabha for . every village or group of _villages. Under section 42, the State Government . or . the . prescribed aµthority shall divide a disti; ict . in_to 'circles, each circle comprising as . many

area~ sµbject to. the . jµrisdiction of _ Gaon Sabha as -t mav .. be e; icpedient .. Th~ .State Goverrµnent shall . also establish ... Panchayati . Adalats for each such . circle, provided-that the areas. of Gaon Sabhas within each

circk , shall,. as. fai: .a~- posible~. be (ontigous.' \Jndr section, 43,, eyery . paon Sabha. in . a ci_rcle . shall elect five ... aqults of. prescribed qualificatipn permanently residing within its jurisdiction to act as. Pariches in the Pan.chayati Adalat of that circle. The Panches so elected.· by all _the Gaori Sabhas fil a circle shall form a pariel. Under section 44 all the Panches ·· elected unde{ sestion: 43 .. shall dei: 'fom ·ong themselves • a person who is able to record proceedings and to act,

-1955

Bhim Sen

The State of U. P.

Jagannadhadas .7-

•955

Bhim Srn

v. .

Thi State of U. P.

Jagaaaadhaaas j.

1448 StJJIREME COURT REPORTS [1955]

as Sarpanch of the Partehayati Adalat. As will be seen from the subsequent sections the Panchayati Adalat has jurisdiction to deal with all disputes and cases, both civil and criminal, arising within its area but it is enough for the present case to notice only those portions which relate to criminal jurisdiction.

Sectfon 52(1) provides that certain specified offences, if committed within the jurisdiction of a Panchayati Adalat (which in this context must be taken to tefer to local jurisdiction) shall be cognizable by such Panchayati Adalat. The clauses of sub-section ( 1) of section 52 specify the various classes of offences under the Indian Penal Code and under some other special and local Acts which are within the cognizance of the Panchayati Adalat.

Section 379, Indian Penal Code, is one of the sections so enumerated and it is specifically provided that the jurisdiction of the Adalat in respect of this offence is only where the theft of the stolen property does not exceed Rs. 50.

Section 51(1) provides that notwithstanding anything contained in the Code of Criminal Procedure, 1898, every case instituted under the Act shall be instituted before the Sarpanch of the Panchayati Adalat of the circle in which the offence is committed.

It is also provided under section 55 that no court shall take cognizance of any case which is cognizable under the Act by the Panchayati Adalat unless an order has been passed by a Sub-Divisional Magistrate under section 85.

Section 85 authorises a Sub-Divisional Magistrate, on an application of a party or on his own moti9n, to cancel the jurisdiction of the Panchayati Adalat with regard to any pending case if there is an apprehension of miscarriage of justice. Section 49 provides the machinery for the trial of cases by the formation of benches to dea.J with the same. It is necessary to set out the whole of that section in so far as it relates to criminal cases and it is as follows :

"49.

(1) The Sarpanch shall, for the trial of every case, form a bench of five Panches from the panel (the panel referred to in section 43 above noticed) , provided that at least one of the Panches in the bench

...

shall be a person who . is able to record evidence and proceedings.

(2) Every such bench shall include one Panch who resides in the area of the Gaon Sabha in which the complainant of a case resides and likewise one Panch in the area m which the. accused resides and three Panches residing in the area of the Gaon Sabha in which neither party resides, provided that in police cases one Panch shall be such as may be residing in the Gaon Sabha in which the offence was committed, one Panch residing in the area of Gaon Sabha in which the accused resides and three Panches residing in the areas other than those mentioned above.

(3) ............................................... . ( 4) Notwithstanding anything contained in this ection, the State Government may, by rules, prescribe the constitution of special benches for determin.ing any dispute arising between any parties or Gaon Sabhas or different circles or for any other purpose''.

One of the rules framed with reference to this subsection which 1s relevant for the present purpose 1s rule 84 and is as follows :

"For the purposes of trial or decision of any case or proceeding parties of which are residents of different circles or different districts or any one of the parties is a resident of a place not governed by the Act, the

preribed authority having jurisdiction over the Panchayati Adalat in which a case or proceeding is instituted or transferred for disoosal shall constitute a special bench consisting of Panches of the said Panchayati Adalat and if convenient and possible may include a Panch of the other circle and shall appoint one of them as Chairman of the bench unless the Sarpanch is a member of it".

The question of jurisdiction arises with reference to the above provisions of the Act. The charge-sheet filed by the police shows that the theft of the property involved in the case is Rs. 3. There can also be no doubt that the offence has been. committed within the limits of Manikpur. It would appear, therefore, prima

Bhim Sen

The State of U. F.

Jagannadhadas J.

Bhim'Stn

v. 717' "State of U. P.

Jagannadhadas J.

SUPREME COURT E.EPORTS [ 1;955]

facie that .by virtue of sections 51 arid 52, the }?anchayati Adalat of Manikpur had jurisdicticm .o try the case... If so, the jurisdiction . of the regular Magistrate would . appear .to qe barred urider section _55 .of the Act, since it is not . suggested that there \:tali been any ord.er. under section 85.

But there is. a sc\rious difficulty in the way of the e'fercie , of this . jurisdi, ction by the Adalat.. . . , , , , ,.' The jurisdiction of the Adalat to try any criminal case has to be exercised by a bench of the Panches to be formed by the Sarpanch under section 49 of the Act. The 'bench has to consist of five Panches of whom one is to be of the Gaon Sabha of Manikpur (since the offence was committed in that place and this is . a police case) and another belonging to the Gaon Sabha of the accused and the other three from Gaon Sabhas . outside the above two. Where there is only one accused and that accused belongs to an .. area within Uttar Pradesh for which a Gaon Sabha has been formed under the Act or where there are more

than one accused all belonging to the area of the same Gaon Sabha, the constitution of a bench of the Panchayati Adalat for the trial of such a case presents no difficulty. But in the present case it is oh the record that one out of the three accused by name Tulsi belongs to Jubbalpore in Madhya Pradesh. It was, therefore, not possible to constitute a bench in strict compliance with section 49(2) of the Act to try his case.

Recourse had, therefore, to be had to section 49(4) and the rules framed thereunder. The relevant rule 84 (which has been quoted above) no doubt provides for the constitution of special benches to try cases where there are more than one accused who are residents of different areas. Now this rule in so far as it provides for cases wherein all the parties concerned are residents of Uttar Pradesh may be unexceptionable. But whether it is valid in so far as it provides for the exercise of jurisdiction in respect of a resident outside the State , may be open to argument on more grounds than one. In the present case, it is sufficient to consider whether this portion of the rule is valid, withreference to section 49(4) under which it is

framed. Section 49( 4) authorises the . Government to frame rules for , the constitution of special benches "for determining disputes between parties of different circles or Gaon Sabhas or for any other purpose". "Circles or Gaon Sabhas" mentioned herein has reference only to circles and Gaon . Sabhas constituted under the Act. This does not .authorie the framing of a rule in so far as it relates to a person belonging to a place outside the State. Nor tan the phrase "for any other purpose" in sub-section ( 4) of section 49 whatever that may mean-be construed so widely as to authorise a rule affecting such. an. outsider, assuming without deciding, that a statutory provision by a State Legislature can, directly or by delegation and in terms, validly provide for the exercise of .such jurisdiction by a Panchayati Adalat. We are clearly of the opinion that rule 84 in so far as it relates to the constitution of a special bench where one of the .parties belongs to a place outside . the State is ultra vires.

Hence no competent bench could be constituted under section 49 of the. Act for the trial of the present case in which there are three accused of whom one is a person belonging to a different State.

Now, in these circumstances, it has to be considered whether the trial of this case by the ordinary criminal Court is barred. The bar of the jurisdiction of the ordinary criminal Court is brought about by section 55 of the Act.

But it requires to be noticed that the bar which is brought about by the section, is a bar which relates to the case as a whole. Because, in terms, what it says is "no court shall take cognizance of any case which is cognizable under the Act by a Panchayati Adalat".

Under section 2(a) of the Act a "case" is defined as meaning "criminal proceeding in respect of an offence triable by a Panchayati Adalat" and "Panchayati Adalat" is defined as "including a bench thereof". It is clear, therefore, that this bar has reference to the entire proceeding, i.e., as involving all the accused together. Such a bar in respect of the entire case can be operative only where there is a valid machinery for the trial thereof. In the present case in which at least one of the accused

Bhim Sm

TM State of U. P.

Jagannadhadas ].

__ ,

BhiT!I Sen

Thi Stale of u. P.

Jagannadhadas J.

Sl)PREME COURT REPORTS [1955]

(though nor this very appellwt) is a person coming from an area outside the local extent of the Act, any bench of the Ada1at that can be valid! y formed thereunder 'Cannot try the three accused together a11d hence can have no jurisdiction over the whole case. The jurisdiction of the regular criminal court in respect of such a case cannot be taken away by the operation of section 55 of the Act. It is to be remembered that the jurisdiction of the criminal courts under section 5 of the Code of Criminal Procedure is comprehensive.

That section enjoins that all offences under the Indian Penal Code shall be investigated, enquired into, tried and otherwise dealt with "according to the provisions hereinafter contained". To the extent that no valid machinery is set up under the U.P. Panchayat Raj Act for the trial of any particular case, the jurisdiction of the ordinary criminal court under section 5, Code of Criminal Procedure cannot be held to have been excluded. Exclusion of jurisdiction of a court of general jurisdiction, can be brought about by the setting up of a court of limited jurisdiction, in respect of the limited field, only if the vesting and the exercise of that limited jurisdiction is clear and operative.

Where, as in this case, there is no adequate machinery for the exercise of this jurisdiction in a specific case, we cannot hold that the exercise of jurisdiction in respect of such a case by the Court of general jurisdic tion is illegal.

We are, therefore, of the opinion that the Railway Magistrate had the jurisdiction to try the case.

The appeal is accordingly dismissed.

Appeal dismissed.

Sinha J.

BHIM SEN

allowed.

THE STATE OF U

VIVIAN BosE

JAGANNADHADAs

Panchayat Raj Act, 1947

ss. 49

s. 49

s. 55

s. 379

Indian Penal Code

PanchaYat Raj Act

U.P. State

Madhya Pradesh State

Section 52( I)

Section 55

Section 49

s. 43

s. 49(4)

Madhya Pradesh

s. 49(2)

Section 84

s. 49

s. 55

Bhim Sen

State of U. P.

Bhim.Sen

State of U. P

Article 134(1)

K. P. Gupta.and

A.D. Mathur

K. B. Astliana

jAGANNADHADAS

Bartda

Uttar Pradesh

Ra!Il Prasad

First information of the same w:is lodged, before the u!J-Ispector, Railway Police, by one Ra!Il Prasad, Head Watchman, The Raiiway Police.

Raiiway Police

Indian Penal Code

Supreme Court

U.P. Panchayat, Raj At, 1917

To dcide the question of jurisdiction ths raised it is necessary to, , notice the scheme of the U.P. Panchayat, Raj At, 1917 (U.]J. A, ct XXVI of 1947) (hereinafter referred to as the.

section 3

section 42

section 44

Bhim

Under section 44 all the Panches ·· elected unde{ sestion: 43 .. shall dei: 'fom ·ong themselves • a person who is able to record proceedings and to act,
1955

Bhim Sen

The State of U. P.

Jagannadhadas .7-

•955

Bhim Srn

v. .

State of U. P.

Jagaaaadhaaas

section 52

Indian Penal Code

Section 379

Indian Penal Code

Section 51(1)

Code of Criminal Procedure, 1898

section 55

section 85

Section 85

Section 49

section 43

Manikpur

State of U. F.

Jagannadhadas

State of U. P.

Jagannadhadas J.

sections 51

section 85

section 49

Tulsi

Jubbalpore

section 49(2)

section 49(4)

section 49(4)

Section 49( 4)

section 49

section 49

section 55

section 2(a)

Bhim Sm

TM State

BhiT!I Sen

section 55

section 5

Code of Criminal Procedure

Indian Penal Code

Panchayat Raj Act

section 5

Code of Criminal Procedure


CorPcration of

Calcutta

Mule hand Agarwal/a

Venkatarama

Ayyar J.

November 23.

SUPREME COURT REPORTS [1955]

were it not that the appellant desired that the decision of this Court should be obtained on certain questions of importance, and that purpose has been achieved. On a consideration of all the circumstances, we do not think that this is a fit case in which we should pass an order for demolition. We should, however, add that we find no justification for the strictures passed on the appellant by the court below.

In the result, the appeal is dismissed.

IN THE MATTER OF

D AN ADVOCATE OF THE SUPREME COURT. •

[B. K. MuKHERJEA, C. J., S. R. DAs and

VENKATARAMA AYYAR JJ.)

Bar Councils Act-Misconduct in capacity other than professional -Jurisdiction of Court-Bar Councils Act (XXXVIII of 1926), s. JO-Supreme Court Rules, Order IV, Rule 30.

Section 10 of the Bar Councils Act confers on the Court juris~ diction to take disciplinary_ action against an Advocate not merely for professional misconduct but any other misconduct committed in any other capacity as well and leaves it to the Court's discretion to t2ke such action as it thinks fit in any suitable case.

< The Advocate-General of Bombay v. Three Advocates ([1934] I.LR. 59 Born. 57), In the matter of an Advocate ([1936] I.L.R. 63 Cal. 867) and In re a Pleader (I.L.R. [1943] Mad. 595), referred to.

In re Thomas fames Wallace ([1866] L.R. I P.C. 283), and In re an Advocate of Benares (A.LR. [1932] All. 492), held inapplicable.

Consequently, in a case where an Advocate figuring as an accused in a case under the Bombay Prohibiti9n Act was persistently rud!! to and contemptuous of the trial Magistrate and did all in his po\ver to hold up the trial and bring the administration of justice into contempt, he ~'<ls guilty of misconduct and as such was liable to be suspended from practice.

D in person

C. Setalvad, Attorney-General for India, as amicus curiae.

1955.

November 23.

The Judgment of the Court was delivered by

DAs J.-This Rule was issued by this Court under Order IV, rule 30 of the Rules of this Court after receipt of a report from the Bombay High Court that that High Court had, by its order made on the 13th October 1955 in Civil Application No. 1506 of 1955, suspended the respondent from practice as an Advocate of that High Court for a period of one year from

th~ date of the said order. By the rule the respondent has been required to show cause why, in view of the matter specified in the judgment and order of the Bombay High Court referred to above, appropriate action, disciplinary or otherwise, should not be taken against him by this Court.

The respondent is an Advocate of some standing in the Bombay High Court and as such was also enrolled as an Advocate of this Court. It appears that in the earlier part of the year 1953 the Advocate was prosecuted before Mr. Sonavane, one of the Presidency Magistrates at Bombay, on a charge of having committed an offence under the Bombay Prohibition Act. The trial lasted from July 1953 to November

1953. On the 18th November 1953 the Magistrate convicted the Advocate of the offence with which he was charged and sentenced him to rigorous imprisonment for one month and to a fine of Rs. 201 and to rigorous imprisonment of four weeks in default of payment of the fine. The Advocate went up on appeal to the High Court. The High Court on the 24th February 1954 upheld the conviction but altered the sentence to one of fine of Rs. 1,000 only.

In the meantime, on the 25th November 1953, the trial Magistt:ate, Mr. Sonavane, made a report to the Registrar (Appellate Side) of the Bombay High Court as to the conduct of the Advocate who appeared in person as the accused before him. On a perusal of that report the Hon'ble the Chief Justice of the Bombay High Court constituted a Tribunal consisting of three members of the Bar Council to enquire into the conduct of . the Advocate. The Tribunal issued a summons

In the mslur of D an Atlvocau of

the Supreme Courl

In th~ mattl of D an Advocate of tM Suprem1 Court

Das].

against the Advocate intimating that it would enquire into his conduct as disclosed in :-

(a) the report dated the 25th November 1953 of Shri T.

Sonavane,

B.A.,

LL.B., Presidency Magistrate, 18th Court, Girgaum, Bombay, to the Registrar, High Court, Appellate Side, Bombay, 'egarding Case No. 593/P of 1953 tried by him, and

(b) the judgment recorded by the High Court of Judicature at Bombay in Criminal Appeal No. 1532 of 1953 (with Criminal Appeal No. 1564 of 1953) upholding the judgment and order of conviction passed against him by the aforesaid learned Magistrate in the aforesaid case.

The proceedings appear to have been somewhat protracted by reason of frequent objections made and petitions filed by the respondent but eventually on or about the 16th March 1955 the respondent forwarded to the Secretary to the Bar Council Tribunal a copy of a letter addressed by him to the Registrar, High Court, Bombay, and requested the Tribunal to send a report to the High Court in terms of his pleading guilty to the charges levelled against him. He concluded the letter by expressing regret for having wasted the time of the Tribunal. In his letter to the Registrar, the respondent enclosed a separate written apology unconditionally withdrawing his contention that the proceedings bfore the Tribunal were misconceived in law and admitting that the High Court had full authority in law to refer the matter to the Bar Council Tribunal and further that the statements made by Mr.

Sona vane in his report were true except in two respects therein specified. On the 28th March 1955 the respondent submitted an additional statemnt clarifying and supplementing his previous. apology. Thereupon the Tribunal made a report to the High Court. By this report the Tribunal held, on the respondent's own admission, the alfegations in the report of Mr. Sonavane to be proved and recommended that a very serious notice should be taken of the respondent's conduct. As regards the .second item in the summons the Tribunal held that the mere conviction of the resvondent under the Prohibition Act did not amount

to professional or other misconduct under section 10 of the Indian Bar Councils Act and, therefore, found him not guilty of that charge.

0'1 a perusal of that report the High Court issued notice to the respondent for final hearing of the matter. The matter came up for final disposal before a Bench consisting of the Chief Justice and Tendolkar, J. on the 13th October 1955. Learned counsel appearing for the respondent offered an unconditional and unqualified apology on behalf of the respondent' and pleaded that the ends of justice would be met if the Court only administered a warning to the respondent.

After considering the report of the Tribunal the High Comt took the view that the misconduct of the respondent was so serious and so grave that a deterrent punishment must be imposed on him.

Accordingly, taking everything into consideration, the High Court suspenaed the respondent from practice for a period of one year from the date of that order. The respondent's application for a certificate of fitness for appeal to this Court having been refused, the respondent filed a petition for special leave to appeal before u';. That petition has, however, been dismissed by us. The rule for disciplinary action now remains to he dealt with.

In answer to the rule the respondent has filed a petition by way of showing cause.

Paragraph 7 of that petition runs as follows :-

"7. That the report of the learned Presidency Magistrate, 18th Court, is a highly exaggerated, garbled and manifestly incorrect version of the incidents that occurred during the trial of the case. And looking to the circumstances under which the petitioner was more or less compelled to tender a humiliating apology, this Hon'ble Court be pleased to direct that a proper inquiry be held in the matter by or under the directions of this Hon'ble Court".

Appearing in person before us the respondent has contended with a certain amount of vehemence that he had not had any fair deal before the Tribunal, that the Tribunal had no jurisdiction to enter upon the enquiry inasmuch as the misconduct complained of

111 lht matl1r of D an Advocate of th1 Suprem1 Court

Das].

In the mr.tte, ~, r D an Advocate of lht Suprvnt r:ourl

Das].

\;; as not committed by him in his .capacity as an Advocate, for he appeared in person as the accused in the Prohibition case, that the Tribunal had at one stage held that it had no jurisdiction but had without giY; ng him a hearing gone back on that decision and <kclineJ to decide that question in his presence, that the Tribunal failed to formulate any formal charge, that he made an application to the High Court under article 227 for quashing the proceedings for want of jurisdiction but the High Court had rejected that application and dccllned to give him a certificate of fitness for appeal to this Court and pointed nut various other matters which he characterised a' . :wwing prejudice and bias on the part of the Tribun ::.

It was pointed out to the respondent that iiis application for special leave to appeal from the judgment and order of the High Court having been dismissed we were not, in this Rule, concerned with the proceed•ngs iJi the Bombay High Court or before the Tribunal of the Bar Council as observed by this Court in In the matter of Mr. G, a Senior Advocate Qf the Supr.:me Court( 1 ). The respondent then fell back upon parograph 7 of his petition quoted above and asked this Court to hold a fresh enquiry into the matter. From the judgment of the Bombay High Court which is referred to in the Rule issued herein it appears that the respondent had admitted the truth of everything contained in Mr. Sonavane's report except two matters only.

In his present petition showing cause he does not, apart from a vague allegation that the report is an exaggerated, garbled and manifestly incorrect version of the incidents that occurred during the trial of the case, refer to any particular statement therein which is exaggerated, garbled or incorect.

In view of his unconditional admission of the truth of the statements in the report of Mr. Sonavane we are not prepared to permit him to go back on the same on such vague allegations as are to be found in paragraph 7 of his petition. It is needless for us to emphasise that a person holding the responsible position of an Advocate of a High Court

(1) [1955] l $.C.R. 490, 495.

and of this Court cannot be permitted to play with the Court in the way this Advocate has done. He admitted the correctness of the report, confessed his guilt and tendered an unconditional apology evidently in the hope that he would get away with it by merely tendering an apology.

Finding that the tactics did not work with the High Court as he expected the same to do, he now wants to change his tactics by asking for an enquiry which he had himself avoided by means of his admission and apology. This we are not prepared to permit him to do. We have carefully gone through the report of Mr. Sonavane and we find ourselves in entire agreement with the High Court when it says that that report makes an extremely sad reading. The conduct of the respondent in the criminal trial was, as pointed out by the High Court, entirely indefensible by any standard.

It discloses a continuous and . persistent attempt on the part of the respondent to be rude to and contemptuous of the Magistrate, to hold up the trial and to do everything in his power to bring the administration of justice into contempt. Such a conduct, in our opinion, merits severe condemnation.

The respondent has drawn our attention to the case of In re Thomas fames Wallace(1 ) which was followed in In re An Advocate of Benares( 2). We do not conceive that the Privy Council intended to lay down any fixed and rigid rule of law or did anything more than indicate the course which, in the circumstances of that case, it considered to be reasonable, satisfactory and convenient a1id the Allahabad case simply followed the same. As has been held by a Full Bench of the Bombay High Court in The Advocate-General of Bombay v. Three Advocates(3), the Indian Legislature by using the words "professional or other misconduct" in section 10 of the Indian Bar Councils Act intended to confer on the Court disciplinary jurisdiction to take action in all cases of misconduct whether in a professional or other capacity .leaving it to the discretion of Court to take action only in suitable

(l) [1866] L.R. l.P.C. 283.

(2) A.I.R. 1932 All. 492.

(3) [1934] I.L.R. 59 Bom. 57.

19~5

In 1111 ina111r •f D an Adoocal1 of .1h1 Supreme Court

Das].

In the matter nf D an Advoeate of

the Supreme Court

Das].

cases. To the like effect is the decision of a Special Bench of the Calcutta High Court in In the matter of an Advocate('). The pleader concerned in the case of In re a Pleader( 2) was certainly not, by shouting slogans in Court, functioning as an Advocate, nevertheless he was dealt with under section 13(f) of the Legal Practitioners Act.

W a/lace's case (supra) was not a decision on any statutory provision such as we have in the Legal Practitioners Act or the Bar Councils Act.

For the reasons stated above and in view of the conduct of the Advocate seen in the light of the surrounding circumstances we are clearly of opinion that the Advocate should, by reason of his having indulged in conduct unworthy of a member of the honourable profession to which he belongs, be suspended from practice for some time. He is an Advocate of this Court and according to a majority decision of this Court he is entitled, under the Supreme Court Advocates (Practice in High Courts) Act, to exercise his profession in all Courts throughout the Union of India.

Any suspension for a period less than the period fixed by the Bombay High Court will obviously lead to serious anomaly and inconvenience.

We accordingly direct that the Advocate concerned be suspended from practice for a period co-terminous with the period of s.uspension fixed by the Bombay High Court, namely, up to the 13th October, 1956.

(l) [1936] I.L.R. 63 Cal. 867.

(2) I.L.R. [1943] Mad. 459.

IN THE MATTER OF AN ADVOCATE OF THE SUPREME COURT. •

B. K. MuKHERJEA

S. R. DAs

JO-Supreme Court Rules

Section 10

Benares

C. Setalvad

Bombay High Court

Sonavane

18th November 1953

24th February 1954

25th November 1953

T.

Sonavane

High Court of Judicature at Bombay

16th March 1955

High Court, Bombay

Sona vane

28th March 1955

section 10

Indian Bar Councils Act

Tendolkar

13th October 1955

article 227

Thomas fames Wallace(1

Allahabad

section 10

Indian Bar Councils Act

Supreme Court

Calcutta High Court

section 13(f)

Legal Practitioners Act

Legal Practitioners Act

Union of India

13th October, 1956


2S.C.R.

SUPREME COURT REPORTS 1013

SHRI VIRINDAR KUMAR SATYAWADI v.

THE STATE OF PUNJAB. f B. K. MnT<:HERJEA, C.J., VENKATARAMA AYYAR and

JAFER IMAM JJ.]

Representation of the People Act, (XLlll of 1951), ss. 33, 36- Ciiminai Procedu1e Code (V of 1898), ss. 195(1)(b), 476, 476B- Retuming Officer--Deciding on the validity or otherwise of nomination paper tmde1 ss. 33, 36 of the Act-Whether a court within the

meaning of ss. 195(1)(b), 476 and 476-B of the Code of Criminal Procedure.

Held that a Returning Officer acting under ss. 33 and 36 of the Representation of the People Act, 1951 and deciding on the validity or otherwise of a nomination paper is not a court within the meaning of ss. 195(1)(b), 476 and 476-B of the Code of Criminal Procedure.

Shell Co. of Australia v. Federal Commissioner of Taxation ((1931] A.C. 275 at 296), R. v. London County Council ([1931] 2 K.B. 215), Cooper v. Wilson (rl937J 2 K.B. 309), Huddart Parker and Co.

v. Moorehead ((1908] 8 C.L.R. 330), Rola Co. v. The Commonwealth ((19Hj 69 C.L.R. 185), Bliarat Bank Ltd. v. Employees of Bharat Bank Ltd. ( [1950] S.C.R. 459), Mehar Singh v. Emperor, (A.I.R. 1933 Lah. 884), Empernr v. Nanak Chand (A.I.R. 1943 Lah. 208), Har Prasad v. Empero1, (A.I.R. 1947 All. 139) and Channu Lal v.

Rex ([1950] 51 Cr. l f. JQ9), reforred to.

CRIMINAL

APPELLATE

JURISDICTION ; Criminal Appeal No. 62 of 1954.

Appeal by special leave from thr. Judgment and Order dated the 10th June 1953 of the Punjab High Court at Simla in Criminal Revision No. 86 of 1953 ari, ing out of the Judgment and Order dated the 7th January 1953 of the Court of Sessions Judge, Kamal in Criminal Appeal No. 355 of 1952.

N. C. Chatterjee, (Vir Sen Sawhney and Rajinder Narain, with him) for the appellant.

Copa! Singh and P. G. Gokhale, for the respondent.

N•v mher 24

195~ .

Shri Virindar Kt4mar Salyawadi

The Staid of

Puniab

1955.

November 24.

The Judgment of the Court was delivered by

VENKATARAMA

AYYAR J.-Thc appellant was a candidate for election to the House of the People from the Kamal Reserved Constituency during the Ja, t General Electio; is.

The proviso to section 33(3) of the Representation of the People Act (XL!II of 1951), omitting what is not material, enacts "that in a constituencv where anv seat is reserved for the Scheduled Cstes, no cndiate shall be deemed to be qualified to be chosen to fill that seat unless his nomination paper is accompanied by a declaration verified in the prescribed manner that the candidate is a member of the Scheduled Castes for which the seat has been so reserved and the declaration specifies the particular caste of which the candidate is a member and aiso the area in relation to which such caste is one of the Schedule Castes"_ Rule 6 of the Election Rules provides that t:1e declaration referred to in the above proviso shall be verified by the candidate on oath or solemn affirmation before a Magistrate. Schedule II co; itains t11c frmn of nomination paper to he usd, with the terms in which the declaration is to he made by the candidate and verified by the Magistrate: On 5-11-1951 the appelhnt signed two nomination papers, each containing the following declaration:

"I hereby declare that I am a member of tbc Balmiki Caste which has been declared to be a Scheduled Caste in the State of Punjab".

The Balmiki Caste is one of the castes declared to he

.1 Scheduled Caste under the "Constitution (Scheduled Castes) Order, 1950". The above declaration was made on solemn affirmation before the First Class

Magistrate, Kamal, and the nomination papers with the above declaration were filed before the District Magistrate, Kamal, who was the returning officer. One Jai Ram Sarup, a member of the Chamar caste, which is one of the Scheduled Castes, was also a candid•tc for the seat, and he raised the objection that the appellant was not a Balmiki by caste, and that he was therefore not oualified to stand for election to the resened Constitu, ency.

Acting on the declaration aforesaid, the returning officer overruled the objection, and accepted the nomination paper of the appellant as valid. At the polling, the appellant got the majority of votes, and on 6-3-1952 he was declared duly elected.

On 27-8-1952 Jai Ram Sarup filed the application out of which the present appeal arises, under sections 476 and 195 of the Code of Criminal Procedure before the District Magistrate, who functioned as the returning officer. He therein alleged that the declaration made by the appellant that he belonged to the Balmiki caste was false, that, in fact, he was born a Muslim and had been converted to Hinduism, and that therefore "in the interests of justice" and "for c;1feguarding the interests of the Scheduled Castes'', proceedings hould be taken for his prosecution. In his counter-affidavit the appellant stated :

"l am not a Muhammadan by birth.

On the other hand, I was born in Balmiki Hindu familv.

I am a Hindu".

The District Magistrate held an enquiry in which one Prith Singh Azad, President of the Depressed Classes, Delhi, gave evidence that the appellant was a Muslim of the 1ame of Khaliq. Sadiq, that in 1938 he applied to the Suddhi Sabha to be converted to Hinduism. that he was so converted, and that thereafter he came to be known as Virindar Kumar.

In cross-examination, he stated that the appellant had admitted before him that he was a Muslim by birth. He added that he had two Muslim wives living at the time of the conversion.

The applicant, Jai Ram Sarup, also produced ten letters stated to be in the handwriting of the appellant in proof of the above facts. On 17-9-1952 the Magistrate passed an order that there wa> a prima f acie case for taking action, and on 29-9-1952 he filed a complaint before the First Class Magistrate, Kamal, charging the appelbnt with offences under sections 181, 182 and 193 of the Indian Penal Code.

Against this order, the appellant preferred an appeal to the Court of the Sessions Judge, Kamal, who dismissed the same on the ground th:it the returning officer was not a Court, that the proceedings before

Shri Virilldar Kumar Saty awadi

Tiu Stat• of

Punjab

V1nkalarama

AyyarJ.

Shri Vfrindar Kumar S(Jlyawadi

Thi State of

Punjab

V1nkalarama

,(ryar ].

him did not fall under section 476, and that therefore no appeal lay under section 476-B.

The appellant took the matter in revision before the High Court, Punjab, and that was heard by Harnam Singh, J., who held, differing from the Sessions Judge, that the returning officer was a Court, and that his order was therefore appcalable. He, however, held that on the merits there was no case for interference, and accordingly dismissed the revJSJon.

It is against this order that the present appeal by special leave is directed.

On behalf of the appella:it Mr. N. C. Chatterjee argues that having held that the order of the returnmg officer was appealable, the learned Judge ought to have remanded the case for hearing by the Sessions

Judge on the merits, and that his own disposal of the matter was summary and perfunctory. The contention of Mr. Gopal Singh for the respondent is that the view of the Sessions Judge th!lt the returning officer was not a court and that his order was not, therefore, appealable was correct, and that further the order of the High Court in revision declining to interfere on the merits was not liable to be questioned in special appeal in this Court.

The first question that arises for our decision is whether the order of the District Magistrate passed on 17-9-1952 as returning officer is open to appeal.

The statutory provisions bearing on this point a1" sections 195, 476 and 476-B of the Code of Criminal Procedure. Section 195 ( 1) (a) provides that no court shall take cognizance of any offence punishable under sections 172 to 188 of the Indian Penal Code except on the complaint in writing of the public officer concerned or of his superior. Section 195(1) (b) enacts that no Court shall take cognizance of the offences mentioned therein, where such offence is committed in, or in relation to, any proceeding in any Court. except on the complaint in writing of such Court or a Court to which it is subordinate. The offence under section 193 is one of those mentioned in section 195(1) (b). Section 476 prescribes the procedure to be followed where a Court is moved to lay . a complaint, and that applies

only to offences mentioned in sections 195 ( 1) (b) and 195(1) (c) and not to those mentioned in section 195(1) (a). Section 476-B provides for an appeal from an order passed under section 476 to the appropriate Court.

The result then is that if the complaint relates to offences mentioned in sections 195 ( 1) (b) and 195 ( 1) ( c), an appeal would be competent, but not if it relates to offences mentioned in section 195(1)(a).

Now, the order of the Magistrate dated 17-9-1952 directs that the appellant should be prosecuted for offences under sections 181, 182 and 193. There is no dispute that the order in so far as it relates to offences under sections 181 and 182 is not appealable, as they fall directly under section 195(1) (a). The controversy is only as regards the charge under section 193.

Section 193 makes it an offence to give false evidence whether it be in a judicial proceeding or not, and it likewise makes it an offence to fabricate false evidence for use in a judicial proceeding or elsewhere.

If the offence is not committed in a judicial proceeding, then it will fall outside section 195 (1) (b) ,- which applies only when it is committed in or in relation to a proceeding in Court, and there is in consequence no bar to a complaint l:ieing made in respect thereof unaffected by the restrictions contained in section 195(1)(b ). But if the offence under section 193 is committed in or in relation to a proceeding in Court, then it will fall under section 195 ( 1 )(b), and the order directing prosecution under section 476 will be appealable under section

476-B.

The point for decision therefore is whether the returning officer in deciding on the validity of a nomination paper under ection 36 of the Act can be held to act as a Court. The question thus raised does not appear to be covered by authority, and ln:; to be decided on the true character of the functions of the returning officer and the nature and the extent of his powers.

"There has been much difference of opinion as to the precise character of the office of a returning officer, viz., as to whether he is a judicial or ministerial officer", says Parker on Election Agent and Returning Officer, Fifth Edition, page 30.

The true

Shri Virint!ar Kumm Sat; Jawadi

Thi Stale of Punjab

V enkatarama

Ayyar ].

Shri Virindar Kumar Satyawadi

The Slat1 of

Punjab

V1nkatarama

Ayyar J.

view, according to him, is that he partakes of both characters, and that 'in determining objections to nomination papers, he is a judicial officer. That is also the view taken in Indian decisions.

But before we can hold that the proceedings before a returning office! resulting in the acceptance or rejection of a nomination paper fall wiJhin section J95(l)(b) of the Code of Crirn:nal Procedure, it must be shown not merely that they are judicial in character but that fur the! he is acting as a Court in respect thereof. It is a familiar feature of modern legislation to set up bodies and tribunals, and entrust to them work of a judicial character, but they are not Courts in the accepted sense of that term, though they may possess, as observed by Lord Sankey, L.C. in Shell Company of Austral/a v. Federal Conl1n/ssio11er of Taxation( 1 ), some of the trappings of a Court. The distinction between Courts and Tribunals exercising quasi-judicial functions is well established, though whether an authority constituted by a particular enactment falls within one category o;· tl1e other may, on the provisions of that emctment, be open to argument.

There has been considerable discussion in the Courts in England and Australia as to what are the essential characteristics of a Court as distinguished from a tribuna! e;.rcrmmg quasi-judicial functions.

Vide Shell Company of Australia v. Federal Commissioner of Taxation('), R. v.

London County Council('), Cooper v.

Wilson(.'), Hurl dart Parker and Co. v.

Moorehead('), and Rola Co. v. The Cmmonwealth (').

In this Court, the question was considered in some fuln(:" in Tiharat Bank Ltd. v.

Employees of Bharat Bani: Ltd.( ).

It is unnecessary to traverse the same ground once again. It may be stated broadlv that what distinguishes a Court fro1n a quasi-judicial tribu. rrai is thot it is charged with a duty to decide disputes in a judicial manner and decbre the .rights of parties in a definitive judgment. To decide in a judicial manner involves that the parties are entitled as

(IH19.1!1 A.C:. 275. 296.

(3) [: 937] 2 I<..D. 309.

(5) [19H] 69 C.L.R. 185.

(2., [ 911] 2 K.B. 2\5.

(11 [ 908] 3 C.LR. '.130.

(6) [ 950] S.C.R. 459.

a matter of right to be heard in support of their claim and to adduce evidence in proof of it. And it also imports an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law. When a question therefore arises as to whether an authority created by an Act is a Court as distinguished from a quasi-judicial tribunal, what has to be decided is whether having regard to the provisions of the Act it possesses all the attributes of a Court.

We have now to decide whether in view of the principles above stated and the functions and powers entrusted to the returning officer under the Act, he is a court. The statutory provision bearing on this matter is section 36. Under section 36(2), the returning officer has to examine the nomination paper and decide all obiections which mav be made thereto.

This power is undoubtedly judicial in character. But in exercising this power, he is authorised to come to a decision "after such summary enquiry, if any, as he thinks necessary". That means that the parties have no right to insist on producing evidence which they mav desire to .adduce in support of their case. There is no machinery provided for summoning of witnesses, or of compelling production of documents in an enqmry under section 36.

The returning officer is entitled to act suo motu in the matter. When one compares this procedure with that prescribed for trial of election petitions by the Election Tribunal under sections 90 and 92 of the Act, the difference between the two becomes marked. While the proceedings before the Election Tribunal approximate in all essential matters to proceedings in civil courts, the proceedings under section 36 present a different picture. There is no !is, in which persons with opposing claims are entitled to have their rights adjuoicated in a judicial manner, but an enquiry such as is usually conducted by an ad hoc tribunal entrusted with a quasi-judicial power. In other words, the function of the returning officer acting under section 36 is judicial in character, but he is not to act judicially in discharging it. We are of opinion that the returning officer deciding on

M-85 S. C. India/59

Shri V rindar K •mar Satyawadi

The State of

Ponjab

V enkatarama Ayyar J.

19;5

Sltri Viriru/ar K11ntar S1dyarotJtli

T/r4 Stale of

PW!ia6

V1nkatarbma

Ayyar].

the validity of a nomination paper is not a Court foe the purpose of section 195(1)(b) of the Code of Criminal Procedure, and the result is that even as regards the charge under section 193, the order of the Magistrate was not appealable, as the offence was not committed in or in relation to any proceeding in a Court. In this view, the learned Sessions Judge was right in dismissing the appeal as incompetent, and the question argued by Mr. N. C. Chatterjee that the learned Judge of the High Court ought to have remanded the case for hearing by the Sessions Judge on the merits does not arise.

It was next argued for the appellant that as the application for initiating prosecution under section 193 was made under section 476 on the assumption that the returning officer was a court, the order passed thereon must, in the view that he was not a Court, be quashed as without jurisdiction. But then, it should be noted that the application was presented under section 195 also, and it was necessary to move the returning officer under section 195 ( 1 )(a) with reference . to the offences under sections 181 and 182, and there could be no question of quashing the order as without jurisdiction. Even as regards section 193, the position is this : It has no doubt been held that section 476 must be taken to be exhaustive of all the powers of a' Court as such to lay a complaint, and that a complaint filed by it otherwise than under that section should not be entertained.

But there is abundant authority that section 476 does not preclude the officer presiding over a Court from himself preferring a complaint, and that the jurisdiction of the Magistrate before whom the complaint is laid to try it like any other complaint is not taken away by that section. Vide Meher Singh v. Emperor( ), Emperor

v. Nanak Chand('), Har Prasad v. Emperor(') and Channu Lal v. Rex('). There is thus no legal impediment to a returning officer filing a . complaint under sections 181 and 182 as provided in section 195(1)(a) and charging the accused therein with also an offence

(I) A.LR. 1933 Lah. 884.

(2) A.l.R. 1943 Lah.208.

(3) A.l.R!947 A. 11. 139.

(4) [1950] 51 Cr. LJ. 199.

under section 193, In this connection, it should be mentioned that the appellant himself took the objection before the Magistrate that qua returning officer he was not a Court and that the proceedings under section 476 were incompetent, and that that was overruled on the ground that it was an enabling section. There is, therefore, no ground for holding that the order dated 17-9-1952 was without jurisdiction.

It was finally contended that the Magistrate was under a misapprehension in stating that the appellant had declared that he was born a Balmiki, whereas, in fact, he only declared that he was a Balmiki by caste.

But it was the appellant himself who pleaded in his counter-affidavit that he was not a Muslim by birth, and was born in a Balmiki Hindu family, and the observation of the Magistrate has obvious reference to what was pleaded and argued by the appellant. And it should also be noted that no objection was taken either in the grounds of appeal to the Sessions Court or in revision to the High Court with reference to the above remark. Moreover, the charge as laid in the complaint is that the declaration of the appellant in the nomination paper that he "was a member of the Balmiki caste" was false. There is accordingly no substance in this contention.

It must be emphasised that in the view that the order of the Magistrate dated 17-9-1952 was final, this appeal being really directed against that order there must be exceptional grounds before we can interfere with it in special appeal, and none such has been established.

On the other hand, whether action should be taken under section 195 is a matter primarily for the Court which hears the application, and its discretion is not to be lightly interfered with in appeal, even when that is competent.

But where, as here, the legislature does not provide for an appeal, it is preposterous on the part of the appellant to invite this Court to interfere in special appeal.

This appeal is accordingly dismissed.

S/lri 'VirilfliM JC' umar SalJawadi

Tl11Stal1of

Punjab

V 1nkalarar114

Ayyar J.

VIRINDAR KUMAR SATYAWADI

THE STATE OF PUNJAB

JAFER IMAM JJ.

Representation of the People Act

ss. 33, 36

ss. 195(1)(b), 476, 476B

ss. 33, 36

ss. 195(1)(b), 476 and 476

Code of Criminal Procedure

ss. 33 and 36

Representation of the People Act, 1951

ss. 195(1)(b), 476 and 476

Code of Criminal Procedure

N. C. Chatterjee

Vir Sen Sawhney

Rajinder Narain

Copa! Singh

P. G. Gokhale

Virindar Kt4mar Salyawadi

VENKATARAMA

AYYAR

section 33(3)

Representation of the People Act

Schedule C

Schedule II

Punjab

Balmiki Caste

Jai Ram Sarup

sections 476 and 195

Code of Criminal Procedure

Prith Singh Azad

Delhi

Khaliq. Sadiq

Virindar Kumar

First Class Magistrate, Kamal

sections 181, 182 and 193

Indian Penal Code

Court of the Sessions Judge, Kamal

Virilldar Kumar Saty

Vfrindar Kumar S(Jlyawadi

State of

Punjab

section 476

section 476

High Court, Punjab

Harnam Singh

N. C. Chatterjee

Gopal Singh

sections 195, 476 and 476

Code of Criminal Procedure

Section 195

sections 172 to 188

Indian Penal Code

Section 195(1)

section 193

section 195(1)

Section 476

sections 195

section 195(1)

Section 476

section 476

sections 195

section 195(1)(a)

sections 181, 182 and 193

sections 181 and 182

section 195(1)

section 193

Section 193

section 195

section 195(1)(b )

section 193

section 195

section 476

section

476

Parker

Virint!ar Kumm Sat

Virindar Kumar Satyawadi

Sankey

England

Australia

section 36

section 36(2)

section 36

sections 90 and 92

section 36

section 36

V rindar K •mar Satyawadi

State of

Ponjab

V enkatarama Ayyar

Viriru

section 195(1)(b)

Code of Criminal Procedure

section 193

section 193

section 476

section 195

section 195

sections 181 and 182

section 193

section 476

section 476

sections 181 and 182

section 195(1)(a)

section 193

section 476

section 195

Ayyar