Raja Bahadu,.

Motilal Poona

Mills v.

Tukaram Piraji

Ma sale

Govinda Menon J,

November 1.

SUPREME COURT REPORTS [1956]

counsel for the appellant himself has drawn our attention to the agreement. In view of that it is n9t necessary for us to decide in this case whether it was open to the Bombay High Court to pass any order about costs in this Court while granting a certificate of fitness under Art. 133(l)(c) of the Constitution, and we direct that the appellant should pay to the respondents the costs of this appeal in one set and bear its owncosts thereof.

Appeal allowed.

DW ARKA DASS BHATIA v.

THE STATE OF JAMMU AND KASHMIR.

[JAGANNADHADAS, B.P. SINHA and J&FER IMAM JJ]

Preventive Detention-Grounds based on alleged illicit smtigglina of three categories of essential goods to Pakistnn-Two categories found not to be essential goods-Whether order of detrntion bad- Jammu and Kashmir Preventive Detention Act, Wll, ss. 8(2)

and 12(1).

The petitioner was detained by virtue of an order of detention passed by the District Magistrate, Jammu, under s. 3(2) of the Ja.mmu and Kashmir Preventive Detention Act, 2011 and tbat order was'confirmed and continued by an order passed by the Government of the State of Jammu and K"shmir under s. 12(1) of the Act after taking the opinion of the Advisory Board.

The order recited tl!at it was necessary to detain the petitioner vdth a view to preventing him from acting in a manner prejudicial to the maintenance of supplies and services essential to the community and was based on the ground of alleged illicit smuggling by the petitioner of essential goods such as shaffon cloth, zari and mercury to Pakistan. It was '- found that shaffon cloth and znri were not essential goods.

It was not established that the smuggling attributed to the petitioner was substantially only of mercury or that the smuggling as regards shaffon cloth and zari was of an inconsequential nature.

Held, that the order was bad and must be quashed. The sub jective satif:; faction of the detaining authority must be properly based on all the reasons on which it purports to be based.

If some out of those reasons are found to be non-existent or irrelevant, the Court cannot predicate what tbe subjective satisfaction of the authority would have been on the exclusion of those rea&ons.

- ~

...

uphold the order on the remaining reasons would be to substi tute the objective standards of the Court for the ilubjective satisfaction of the authority. The Court must, however, be satisfied that the vague or irrelevant grounds are such as, if excluded, might reasonably have affected the subjective satisfac1ion of the authority.

Keshav 'l.'alpade v. The King Emperor ([1943] F.C.R. 88), Atma Ram Sridhar Vaidya's case ([1951] S.C.R. 167), Dr. Ram Krishan Bhardwaj v. The State of Delhi ((1953] S.C.R. 708) and Shibban Lal Saksena v. The State of U.P. ([1954) S.C.R. 418), relied on.

ORIGINAL JURISDICTION: Petition No. 172 of 1956.

Under Article 32 of the Constitution for a writ in the nature of Habeas Corpus.

S. N. Andely, amicus curiae, for the petitioner.

Porus A. Mehta, T. M. Sen and R.H. Dhebar, for the respondent.

1956. November 1.

The Judgment of the Court was delivered by

JAG.ANNADHADAS J.-This is an application under article 32 of the Constitution for the issue of a writ in the nature of habeas corpus against the State of Jammu and Kashmir by the petitioner who was under detention by virtue of an order dated the 5th September, 1956, isRued by the Government of the State of Jammu and Kashmir under sub-section (2) of section 3 taken with sub-section (1) of section.12 of Jammu and Kashmir Preventive Detention Act, 2011

(hereinafter referred to as the Act). The petitioner was first placed under detention by virtue of an order passed by the District Magistrate, J ammu, under subsection (2) of section 3 of the Act on the 1st May, 1956', and that order was confirmedand continued on the 5th September, 1956, under sub-section (1) of section 12 of the Act by the Government after taking the opinion of the Advisory Board. The two orders of detention, one of the District Magistrate dated the 1st May, 1956, and the other of the Government dated the 5th September, 1956, recited that the petitioner is directed to be detained because it was necessary to make such an order "with a view to preventing him

19SIS

Dwarka Dass Bhatia v.

The State of Jammu and Kashmir

Dwarka Dass Bhatia v.

The State of

Jamniu and Kashmir

Jagannadhadasj.

from acting in a manner prejudicial to the maintenance of supplies and services essential to the community". The grounds of detention as communicated to the petitioner' on the 31st May, 1956, by the District Magistrate, Jammu, are as follows:

"l. That you carried on smuggling of essential goods to Pakistan through the Ferozpur and Amritsar border, but since the tightening of said borders you have recently shifted your smuggling activities to Ranbirsinghpura Pakistan borders in the State of Jammu and Kashmir and are carrying on illicit smuggling of essential goods such as cloth, zari and mercury to Pakistan through this border (thus affecting the economic condition of the public in Kashmir State adversely). 2.

That for the said purpose of smuggling of goods to Pakistan you went to village Darsoopura on 7th April, 1956, and contacted Ghulam Ahmed son of Suraj Din resident of Darsoopura Tehsil Ran birsinghpura and one Ram Lal son of Frangi resident of Miran Sahib Tehsil Ranbirsinghpura and others who similarly are addicted to carrying on such a smuggling business and with their aid made arrangements for export ofShaffon cloth worth Rs. 2,500 t< Pakistan through Ranbirsinghpura Pakistan border. 3.

That on 11-4-1956, you booked 3 bales of silk cloth through Messrs Jaigopal Rajkumar Shegal of Amritsar to Jammu Tawi and got thege bales on address of yourself, and on the same day you got one package of Tila booked through S. Kanti Lal Zarianwalla of Amritsar and got this package also addressed "To self" for Jammu Tawi.

That after booking these packages as aforesaid you came over to Jammu and waited for their arrival and contacted Ghulam Ahmed and Ram Lal the above mentioned persons.

That on the 15th April, 1956, you tried to get the transport receipt from the Punjab National Bank but did not succeed in doing so as it was a public holiday.

Meanwhile your activities leaked out and the goods

. -

were seized by the Central Customs and Excise Depart- 1956 ment of India.

Pwarka Dass 2.

There are other facts also but those cannot Bhatia be given as I consider their disclosure would be against v. the public interest.

The State of That by resorting to the above activities you J~::~~,:id have been and are acting in a manner prejudicial to the maintenance of the supplies and services essential JagminadhadasJ. to the community".

It will be seen from the above grounds that the reason for the detention is the alleged "illicit smuggling of essential goods such as Cloth, zari and mercury to Pakistan through the border, thereby affecting the economic condition of the public in Kashmir State adversely". From the particulars set out in paragraph 2 of the grounds, it appears that the cloth referred to in paragraph 1 is Shaff on cloth. The High Court of Jammu and Kashmir, to whom a similar application was filed by this petitioner along with a number of others similarly detained for illicit smuggling of goods, has in its. judgment dated the 21st June, 1956, held that Shaffon cloth is not within the category of an essential commodity as defined in the Essential Supplies (Temporary Powers) Ordinance of Jammu and Kashmir. There is no indication in the High Court judgment whether zari is or is not an essential commodity in the same sense. But in answer to a qury from this Court, Shri Porus Mehta who appeared before us on behalf of the State of Jammu and Kashmir has stated, on instructions, that zari which is obviously a luxury article is not one of the commodities declared essential under the above Ordinance. The High Court, when it dealt with the batch of applications, of which the application of the petitioner before us was one, set aside the detention of number of others on the ground that the smuggling attributed to the individuals concerned in those cases was not of essential goods. So far as this petitioner is concerned the High Court held as follows:

"The case of Dwarika Das Bhatia stands on &

Dwarka Dass Bhatia v.

The State of Jqmm1t and /{ashmir

different footing altogether.

The allegation against him is that he smuggled into Pakistan some goods such as cloth and zari along with a certain quantity of mercury.

Mercury is a non-ferrous metal and according to the definition of an essential commodity given in the Essential Supplies (Temporary Powers) Ordinance, mercury is an essential commodity. This being so, Dwarika Das Bhatia's detention cannot be J agannadhadas J, challenged".

The point raised before us is that since the detention is based on the assumption that Shaf!on cloth and zari as well as mercury; are all essential goods and since two out of the three categories of the goods with reference to the smuggling of which the detention has been directed, are found not to be essential goods, the entire order is illegal, although one of the items, viz., mercury is an essential commodity. In support of this contention, the cases of this Court in Dr. Ram Krishan Bhardwaj v. The State of Delhi('), and Shibban Lal Saksena v. The State of U. P.(') are relied upon. Learned counsel for the State of Jammu and Kashmir contends that the principle of these decisions has no application to the present case, and attempts to distinguish the same. In order to understand the principle underlying these two cases, it is necessary to examine them in some detail.

In Dr. Ram Krishan f3hardwaj's case (supra) the two points that were raised were (1) whether an order of detention is invalid if the grounds supplied in support thereof are vague, and (2) whether the vagueness of one or some of the various grounds vitiates the entire order. The argument advanced in that case was based on the view adopted by this Court in the decision in Atma Ram Sridhar Vaidya's case('), viz., that the obligation cast on the detaining authority to supply grounds is for the purpose of enabling a detenue to make a fair representation to the authority concerned and to the Advisory Board, against the order uf detention.

The argument was that in a

(1 ! [1953] S.C.R. 708.

(21 [1954] S C.R. 418.

13) [1951] S C.R. 167.

- ·-

case where one or more of the grounds a.re vague, the 1956 petitioner is handicapped in making an adequate Du, arka Dass representation as regards that ground and his repre- Bhatia sentation even if effective in respect of the other v. grounds, may fail to carry conviction as regards the The State of ground which is vague and that this might result in Jammtt and the detention being confirmed. The Court stated that Kashmir that argument was not without force and held as J g -dh d sJ f 11 a anna a a • 0 ows:

"The question however is not whether the petitioner will in fact be prejudicially affected in the matter of securing his release by his representation, but whether his constitutional safeguard has been infringed. Preventive detention is a serious invasion of personal liberty and such meagre safeguards as the Constitution has provided against the improper exercise of the power must be jealously watched and enforced by the Court. . ....... We are of opinion that this constitutional requirement must be satisfied with respect to each of the grounds communicated to the person detained, subject of course to a claim of the privilege under clause (6) of article 22.

That not. having been done in regard to the ground mentioned, ........ the petitioner's detention cannot be held to be in accordance with the procedure established by law within the meaning of article 21".

Shibban Lal Saksena v. The State of U. P. (supra) is a case where the question arose in a different form.

The grounds of detention communicated to the detenue were of two-fold character, i.e., fell under two different categories, viz., (1) prejudicial to maintenance of supplies essential to community, and (2) injurious to maintenance of public order. When the matter was referred to the Advisory Board, it held that the first of the above grounds was not made out as a fact but upheld the order on the second ground.

The question before the court was whether this confirmation of the original order of detention, when one of the two grounds was found to be non-existent by the Advisory Board, could be maintained. Their Lordships dealt with the matter as follows:

1Ps6 "It has been repeatedly held by this court that the power to issue a detention order under section 3 Dwarka Dass Bhatia of the Preventve Detention Act depends entirely v. upon the satisfaction of the appropriate authority Th, state of specified in that section. The sufficiency of the Jarnmuand grounds upon which such satisfaction purports to be Kashmir based, provided they have a rational probative value

JagannadhadasJ and are not extraneous to the scope or purpose of the

 legislative provision cannot be challenged in a court of Jaw, except on the ground of mala fides.

A Court of law is not even competent to enquire into the truth or otherwise of the facts which are mentioned as grounds of detention in the communication to the detenue under section 7 of the Act." Posing the situation which arises in such cases where one of the grounds is found to be irrelevant or unsubstantiated, the Court stated as follows:

"The question is, whether in such circumstances the original order made under section 3(1)

(a) of the Act can be allowed to stand. The answer, in our opinion, can only be in the negative. The detaining authority gave here two grounds for detaining the petitioner. We can neither decide whether these grounds are good or bad nor can we attempt to assess in what manner and to what extent each of these grounds operated on the mind of the appropriate authority and contributed to the creation of the satisfaction on the basis of which the detention order was made. To say that the other ground, which still remains, is quite sufficient to sustain the order, would be to substitute an objective judicial test for the subjective decision of the executive authority which is against the legislative policy underlying the statute.

In such cases, we think, the position would be the same as if one of these two grounds was irrelevant for the purpose of the Act or was wholly illusory and this would vitiate the detention order as a whole.

This principle, which was recognised by the Federal Court in the case of Keshav Talpade v. The King- Emperor('), seems to us to be quite sound and applicable to the facts of this case".

(1) [19'13] F.C.R. SS.

In Keshav Talpade's case(1) the learned Judges stated as follows:

Dwarka Dass "If a detaining authority gives four reasons for Bhatia detaining a man," without distinguishing between v. them, and any two or three of the reasons are held The State 0! to be bad, it can never be certain to what extent the 1;<::;,·~:; d bad reasons operated on the mind of the authority or whether the detention order would have been JagannadhpdasJ. made at all if only one or two good reasons had been before them".

The principle underlying all these decisions is this.

Where power is vested in a statutory authority to deprive the liberty of a subject on its subjective satisfaction with reference to specified matters, if that satisfaction is stated to be based on a number of grounds or for a variety of reasons, all taken together, and if some out of them are found to be non-existent or irrelevant, the very exercise of that power 'is bad.

That is so because the matter being one for subjective satisfaction, it must be properly based on all the reasons on which it purports to be based. If some out of them are found to be non-existent or irrelevant, the Court cannot predicate what the subjective satisfaction of the said authority would have been on the exclusion of those grounds or reasons. To uphold the validity of such an order in spite of the invalidity of some of the reasons or grounds would be to substitute the objective standards of the Court for the subjective satisfaction of the statutory authority. In applying these principles, however, the Court must be satisfied that the vague or irrelevant grounds are such as, if excluded, might reasonably have affected the subjective satisfaction of the appropriate authority. It is not merely because some ground or reason of a comparatively unessential nature is defective that such an order based on subjective satisfaction can be held to be invalid. The Court while anxious to safeguard the personal liberty of the individual will not lightly interfere with such orders. It is in the light of these principles that the validity of the impugned order has to be judged.

(1) [194JJJ F.C.R. 88.

Dwarka Dass Bhatia v.

The State of Jamm11and

Kashmir

Jagannadhadas J,

NOf.lembet' 6.

In this case, the order of detention is based on the ground that the petitioner was engaged in unlawful smuggling activities relating to three commodities, cloth, zari and mercury of which two are found not to be essential articles. No material is placed before us enabling us to say that the smuggling attributed to the petitioner was substantially only of mercury ~- .~ and that the smuggling as regards the other two commodities was of an inconsequential nature. On the other hand the fact that the particulars furnished to the detenue on the 31st May, 1956, relate only to cloth and zari (we understand that tila referred to in paragraph 3 is zari) indicates.that probably the smuggling of these two items was not of an inconsequential nature.

We are, therefore, clearly of the opinion that the order of detention in this case is bad and must be quashed. We have accordingly quashed the order and directed the release forthwith of the detenue on the conclusion of the hearing on the 29th October, 1956.

Petition allowed.

CENTRAL PROVINCES TRANSPORT

SERVICES LTD. . v.

RAGHUNATH GOPAL PATWARDHAN.

[BHAGWATI, VENKATARAMA AYYAR, s. K. DAS and GovINDA MENON JJ.]

Ind, istrial Dispute-Dismissal of Employee/or misconduct- Oriminal prosecutir)n-Acquittal-Applicaticn for reinstatlm.ent and • .- compensation-Maintainability-Dismissed Emp/(Jyee, Meaninq of- Dispute between employer and an individ1tal employee-Whether an industrial dispute-Central Provinces and_ Berar Industrial Disp'ldes Settlement Act, 1947 (0. P. and Berar XXIII of 1947), ss. 2(10),

(12) and 16-Industrial Disputes Act (XIV of 1947), s. 2(k).

In June, 1950, goods blonging to the appellant company were stolen and as the result of an enquiry the respondent was dismissed on the ground of gross negligence and misconduct.

He was prosecuted on a charge of theft but was acquitted in March, 1952, and thereupon he made an application before the Labour Commissioner

Raja Bahadu

Art. 133(l)(c)

DW ARKA DASS BHATIA

THE STATE OF JAMMU AND KASHMIR

JAGANNADHADAS

B.P. SINHA

FER IMAM JJ

ss. 8(2)

and 12(1)

s. 3(2)

Kashmir Preventive Detention Act, 2011

s. 12(1)

Pakistan

[1943] F.C.R. 88

Article 32

S. N. Andely

Porus A. Mehta

T. M. Sen

R.H. Dhebar

JAG.ANNADHADAS

article 32

State of Jammu and Kashmir

section 3

District Magistrate, J ammu

section 3

1st May, 1956

5th September, 1956

section 12

Ranbirsinghpura Pakistan

Jammu and Kashmir

Darsoopura

7th April, 1956

Ghulam Ahmed

Ram Lal

Amritsar

Jammu Tawi

Jammu

15th April, 1956

Punjab National Bank

State of That

JagminadhadasJ.

High Court of Jammu and Kashmir

21st June, 1956

Porus Mehta

Dwarika Das

Dwarika Das Bhatia

State of Jammu and Kashmir

Ram Krishan f3hardwaj's

Atma Ram Sridhar Vaidya

article 22

article 21

section 3

section 7

section 3(1)

Keshav Talpade

Dwarka Dass

31st May, 1956

29th October, 1956

RAGHUNATH GOPAL PATWARDHAN

BHAGWATI

VENKATARAMA AYYAR

s. K. DAS

GovINDA MENON

Settlement Act, 1947

ss. 2(10)

Industrial Disputes Act

s. 2(k)


Dwarka Dass Bhatia v.

The State of Jamm11and

Kashmir

Jagannadhadas J,

NOf.lembet' 6.

SUPREME COURT REPORTS [1956]

In this case, the order of detention is based on the ground that the petitioner was engaged in unlawful smuggling activities relating to three commodities, cloth, zari and mercury of which two are found not to be essential articles. No material is placed before us enabling us to say that the smuggling attributed to the petitioner was substantially only of mercury ~- .~ and that the smuggling as regards the other two commodities was of an inconsequential nature. On the other hand the fact that the particulars furnished to the detenue on the 31st May, 1956, relate only to cloth and zari (we understand that tila referred to in paragraph 3 is zari) indicates.that probably the smuggling of these two items was not of an inconsequential nature.

We are, therefore, clearly of the opinion that the order of detention in this case is bad and must be quashed. We have accordingly quashed the order and directed the release forthwith of the detenue on the conclusion of the hearing on the 29th October, 1956.

Petition allowed.

CENTRAL PROVINCES TRANSPORT

SERVICES LTD. . v.

RAGHUNATH GOPAL PATWARDHAN.

[BHAGWATI, VENKATARAMA AYYAR, s. K. DAS and GovINDA MENON JJ.]

Ind, istrial Dispute-Dismissal of Employee/or misconduct- Oriminal prosecutir)n-Acquittal-Applicaticn for reinstatlm.ent and • .- compensation-Maintainability-Dismissed Emp/(Jyee, Meaninq of- Dispute between employer and an individ1tal employee-Whether an industrial dispute-Central Provinces and_ Berar Industrial Disp'ldes Settlement Act, 1947 (0. P. and Berar XXIII of 1947), ss. 2(10),

(12) and 16-Industrial Disputes Act (XIV of 1947), s. 2(k).

In June, 1950, goods blonging to the appellant company were stolen and as the result of an enquiry the respondent was dismissed on the ground of gross negligence and misconduct.

He was prosecuted on a charge of theft but was acquitted in March, 1952, and thereupon he made an application before the Labour Commissioner

for reinstatement and compensation under s. 16(2) of the Central 7956 Provinces and Berar Industrial Disputes Settlement Act, 194 7.

It was contended for the appellant that the application was not main Ce1ttral Prnvifices tainable because (1) the respondent was not an employee on the Tra1tsj; ort Senices

date of the application, having been dismissed Jong prior thereto Ud. and (2) his dispute was an individual and not an industrial dispute. v. , Raghtmath 6opal .Held, (1) that the definition of "employee' in s. 2(10) of the Pattt'ardhcm Act includes one who has been dismissed alld has ceased to be in service, and that the inclusive clause therein was inserted ex abun danti cautela to repel a possible contention that employees discharged under ss. 31 and 32 of the Act would not fall withins. 2(10), and cannot be read as importing an intention generally to exclude dismissed employees from that definition.

Western India Aittomobile Association v. Industrial Trib11nal, Bombay ([1949] F.C.R. 321), relied on.

(2) that a dispute between an employer and an employee who bas been dismissed and who makes a claim for ieinstatement and compensation, would be an industrial dispute within the meaning of s. 2(12) of the Act, and s. 16 enables the employee-to enforce his individual rights against an order of dismissal, discharge, removal or suspension.

Qiiaere, whether a dispute simpliciter between an employer and a workman would be an industrial dispute within s. 2(k) of the Industrial Disputes Act, 194 7 (XIV of 194 7).

C1v1L APPELLATE JuRISDIOTION: Civil Appeal No; 320 of 1955.

Appeal by special leave from the judgment and order dated October 19, 1954 of the Labour Appellate Tribunal of India at Bombay in Appeal No. 76 of 1954.

H.J. Umrigar, E. J. Muharir and Rameshwar Nath, for the appellant.

S. W. Dhabe and R. A. Govind, for the respondent.

1956.

November 6. The Judgment of the Court was delivered by

VENKATARAMA AYYAR J.-The Central Provinces Transport Services Ltd., Nagpur, was, at the material dates, a public limited company, and the respondent was employed as a mechanic therein. In June

1950, goods belonging to the Company were stolen,

1956 and suspicion fell on the respondent.

There was an

C l P . enqui:ry into the matter, and that resulted in his dis entra rovince s • J Transport Services missal on une 28, 1950, on the ground of gross ua. negligence and misconduet. He was then prosecuted v. on a charge of theft, but that ended in his acquittal Raghunath Gopal on March 3. 1952. Thereafter, he applied to the Com-

Patwardhan pany to be reinstated, and failing to get redress, filed

Venkatarama on October 1, 1952, an application before the Labour Ayyar J.

Commissioner under section 16(2) of the Central Provinces and Berar Industrial Disputes Settlement Act XXIII of 1947, hereinafter referred to as the Act., for reinstatement and compensation. The Company resisted the claim on the ground, inter alia, that as the applicant had been dismissed on June 28, 1950, he was not an employee on the date of the application, that accordingly there was no "industrial dispute touching the dismissal of an employee" as required by s. 16, sub-ss. (1) and (2) of the Act, and that, in consequence, the proceedings under that sec tion were incompetent. The Assistant Labour Com missioner, before whom the matter came up for hear ing, agreed with this contention, and dismissed the application. The respondent preferred a revision against this order to the Provincial Industrial Court under s. 16(5) of the Act, and by its order dated February 5, 1954, that Court held that a dismissed employee was an employee as defined in s. 2(10) of the Act, that a dispute by such an employee was an industrial dispute within s. 2(12) oflhe Act, and that the application under s. 16(2) of the Act was therefore maintainable. In the result, the order of dis missal was set aside and the matter remanded for enquiry on the merits. Against that order, the Company appealed to the Labour Appellate Tribunal, which by its order dated October 19, 1954, affirmed the decision of the Provincial Industrial Court, and dismissed the appeal. The Company has preferred the present appeal against this order under Art. 136.

Pending the appeal to this Court, the Company went into liquidation and has been taken over by the State of Madhya Pradesh, and is now being run under the name of Central Provinces Transport Services (under

Government ownership), Nagpur. On the application of the respondent, the record has been suitably amended.

The point for decision in this appeal is whether an application for reinstatement and compensation by a dismissed employee is maintainable under s. 16 of the Act. That section, so far as is material to the present question, runs as follows:

"(I) Where the State Government by notification so directs, the Labour Commissioner shall have power to decide an industrial dispute touching the dismissal, discharge, removal or suspension of an employee working in any industry in general or in any local area as may be specified in the notification.

"(2) Any employee, working in an industry to which the notification under sub-section (I) applied, may within six months from the date of such dismissal, discharge, removal or suspension, apply to the Labour Commissioner for reinstatement and payment of compensation for loss of wages".

The argument of Mr. Umrigar for the appellant is that it is a condition prerequisite to the entertainment of an application for reintatement under this section that there should be an industrial dispute touching the dismissal of an employee, that there was none such in this case, because the respondent was not an employee on the date of the application, having been dismissed long prior thereto and further because his dispute was an individual and not an indust.rial dispute.

It will be convenient at this stage to refer to the relevant provisions of the Act, as they stood on the material dates.

Section 2(10) defines an employee as follows:

"employee" means any person employed by an employer to do any skilled or unskilled manual or clerical work for contract or hire or reward in any industry and includes an employee discharged on account of any dispute relating to a change in respect of which a notice is given under section 31 or 32 whether before or after the discharge".

Section 2(12) defines "industrial dispute" as meaning

Central Provinces Transport Serviced

Ltd. v.

Raghunath Gopal

Patwardlian

V•11katarama

Ayyar J.

Central Provinces Tt'ansport Services

Ltd. v.

Raghutiath Gopal Patwardhan

Venkatarania

AyyarJ.

"any dispute or difference connected with an industrial matter arising between employer and employee or between employers or employees". Under s. 2(13), "industrial matter" means "any matter relating to work, pay, wages, reward, hours, privileges, rights or duties of employers or employees, or the mode, terms and conditions of employment or refusal to employ and includes questions pertaining to (a) the relationship between employer and employee, or to the dismissal or non-employment of any person .... "

It is not disputed that a question of reinstatement is an industrial matter as defined ins. 2(13) of the Act.

The controversy relates to the question whether it is an industrial dispute as defined ins. 2(12) of the Act.

The contention of the appellant is that it does not fall within that definition, because the further condition prescribed by s. 2(12) that it must be between an employer and employee is not satisfied. It was argued by Mr. Umrigar that when the respondent was dismissed on June 28, 1950, his employment came to an end, and that he could not thereafter be termed an employee, as that word is ordinarily understood, that it could not have been the intention of the legislature to include in the definition of an employee even those who had ceased to be in service, as otherwise there was no need for the further provision ins. 2(10) that discharged employees would in certain cases be employees; and that, in any event, the inclusive portion of the definition would, on the principle Expressio unius est exclusio alterius, operate to exclude all exemployees, other than those mentioned therein.

The question whether a dismissed employee is an employee as defined in s. 2(10) of the Act must be held to be practically concluded by the decision of the Federal Court in Western India Automobile Association v. Industrial Tribunal, Bombay('). There, the point for determination was whether a claim for reinstatement by a dismissed workman was an industrial dispute as defined in s. 2{k) of the Industrial Disputes Act XIV of 1947.

It was held that the definition ins. 2(k) including as it did, all disputes or

(1) [1010) F.C.R. 321.

differences in connection with employment or non- 1956 employment of a person was sufficiently wide to Central Provmces include a claim for reinstatement by a dismissed work- Transport Sertices man. Counsel for the appellant sought to distinguish Lttl. that decision on the ground firstly, that it was given v. on a statute different from what we are concerned Raghunath <Sopaz with in this appeal, and secondly, that the reference Patwardhan there, included other items of dispute, which un- Venkataramti doubtedly fell within the Act, and the question of Ayyar J. reinstatement took its complexion from those items.

We do not see any force in either of these contentions. Section 2(12) ands. 2(13) of the Act are substantially in pari materia with s. 2(k) of Act XIV of 1947, and the ratio of the decision in Westetn India Automobile Association v. Industrial Tribunal, Bombay (supra) will be as much applicable to the one enactment as to the other. Nor does it make any difference that there were comprised in the reference other items which fell within the definition under s. 2(k), because if the Government had no jurisdiction under the Act to refer the question of reinstatement of dismissed employee for adjudication, then the reference must, to that extent, be treated as a nullity, and it would be immaterial that it was intra viru as regards the other items of dispute.

We are alsounable to accede to the contention of the appellant that the inclusive clause in s. 2(10) of the Act is an indication that the legislature did not intend tu include within that definition those who bad ceased to be in service. In our opinion, that clause was inserted ex abundanti cautela to repel a possible contention that employees discharged under ss. 31and32 of the Act would not fall withins. 2(10), and cannot be read as importing an intention generally to exclude dismissed employees from that definition. On the other hand, s. 16 of the Act expressly provides for relief being granted to dismissed employees by way of reinstatement and compensation, and that provision must become useless and inoperative, if we are to adopt the construction which the appellant seeks to put on the definition of employee ins. 2(10).

We must accordingly hold agreeing with- 196

Central Provinces Transport Services

Ud,

J?c1ghunat1i Gopal

Patward1, an

Venkatarama

Ana• J.

the decision in Western India Automobile Association v.

Industrial Tribunal, Bombay (supra) that the definition of "employee" in the Act would include one who has been dismissed and the respondent cannot be denied relief only by reason of the fact that he was not in employment on the date of the application.

It was next contended that even assuming that • - the respondent was an "employee" as defined in s. 2

(10) of the Act, his dimissal could not be held to be an industrial dispute as defined ins. 2(12), because that term properly meant that the dispute was one between employer on the one hand and the industry represented by its workmen as a class on the other, and that a dispute between the employer and a single employee would be an individual dispute and would therefore be outside the purview of s. 2(12). It was argued in support of this contention that the object of all labour legislation was not so much to deal with individual rights of wokmen, for the enforcement of which there was an appropriate forum in the ordinary courts of the land, as to regulate the relation between capital and la\Jour, treating them as distinct entities, so that public peace and order might not be disturbed and production might not suffer, and for that end, to recognise the right of labour to speak and act as a body for the protection of its common interests and to provide a machinery for speedy settlement of disputes which that body might raise; and that it could not have been the intention of the legislature, where the above considerations did not operate, to interfere with the normal relations between empioyer and employee under the law and to provide an additional

forum to the employee to vindicate his rights. Re- Y _ Hance was placed in support of this contention on decisions of the Madras, Calcutta and Patna High Courts and of Industrial Tribunals.

The question whether a dispute by an individual workman would be an industrial dispute as defined in s. 2(k) of the Act XIV of 1947, has evoked considerable conflict of opinion both in the High Courts and in Industrial Tribunals, and three different views have been expressed thereon: (I) A dispute which concerns

•• ,_

Ceutral Provinces Transport Se• vices

Ud.

only the rights of individual workers, cannot be field to be an industrial dispute. That was the opinion expressed in Kandan Textiles v. Jndustrial Tribunal(1).

There, Rajamannar 0. J. observed that though the language of the definition in s. 2(k) was wide enough v. to include such a dispute, the provisions of s. 18 Raghunath Gopal suggested that something more than an individual Patwardhan dispute bP.tween a_ worker and the employer was meant by an industrial dispute. The other learned Judge, Mack J., was more emphatic in his opinion, and observed that the Act was "never intended to provide a machinery for redress by a dismissed workman".

It became, however, unnecessary to decide the point, as the court came to the conclusion that the reference itself was bad for the reason that there was no material on which the Government could be satisfied that there was a dispute. The views expressed in Kandan Textiles v. Industrial Tribunal (supra) were approved in Manager, United Commercial Bank Ltd.

v. Commissioner of Labour(i); but hPre again, the observations were obiter, as the point for decision was whether a right of appeal conferred by s. 41 of the Madras Shops and Establishments Act XXXVI of 1947 was taken away by implication by Act XIV of 19!7. The question, however, arose directly for decision in J. Chowdhury v. M. 0. Banerjee(3), in which the order of the Government referring the dispute of a dismissed employee to the adjudication of a Tribunal was attacked as incompetent, and it was held by Mitter J., following the observations in Kandan Textiles v. Industrial Tribunal (supra) that the dispute in question was not an industrial dispute, and that the reference was, in consequence, bad.

(If). A dispute between an employer and a single employee can be an industrial dispute as defined in s. 2(k). That was the dPcision in Newspapers 'Ltd., Allahabad v. State Industrial Tribunal, U.P.( 4). In that case, a reference of a dispute by a dismissed employee and the award of the Tribunal passed on that refer-

111 (1949) 2 M.L.J. 789: A.IR. 1961 Mad 611.

(2) A.I.R. 1961 Mad. 141.

18) [1961) 66 0. W.N. ~66. (4J 4.I.B. 1904 All. 61(1.

Venkatarama

Ayyarj.

1956 ence were attacked as bad on the ground that the c P . dispute in question was not an industrial dispute

2.;;:;;!,;;.;;,,::: withins. 2(k) of Act XIV of 1947, and it was held

Ud. by Bhargava J., that an industrial dispute could come v. into existence even if the parties thereto were only Raghunath GoJ>al the employer and a single employee and that the re-

Patwardhan ference and the award were, in consequence, valid. 1• ""

Venkatarama A similar decision was given by a Full BPnch of t.he AyyarJ.

Labour Appellate T, ribunal in Swadeshi Cotton Mills Company Ltd. v. Their Workmen('). (Ill) A dispute between an employer and a single employee cannot per se be an industrial dispute, but it may become one if it is taken up by the Union or a number of workmen. That was held by Bose J., in Bilash Chandra Mitra v. Balmer Lawrie & Co.("), by Ramaswami and Sarjoo Prasad JJ., in New India Assurance Co. v. C-.ntral Government Industrial Tribunal(') and by Balakrishna Ayyar J.,. in Lakshmi Talkies, Madras v. Munuswami and others(') and by the Industrial Tribunals in Gordon Woodroffe & Co. (Madras) Ltd. v. Appa Rao(') and Lynus & Co. v.

Hemanta Kumar Samanta(').

The preponderance of judicial opinion is clearly in favour of the last of the three views stated above, and there is considerable reason behind. it. Notwithstanding that the language of s. 2(k) is wide enough to cover a dispute between an employer and a single employee, the scheme of the Industrial Disput.es Act does appear to contemplate that the machinery provided therein should be set in motion, to settle only disputes which involve the rights of workmen as a class and that a dispute touching the individual rights of a workman was not intended to be the subject of ' an adjudication under the Act, when the same bad not been taken up by the Union or a number of workmen. If that were the correct position, the respondent was not entitled to apply under s. 16(2) of the Act as the workmen in the industry had not adopted his dispute as their own and chosen to treat it as

(1\ [1915-~] l L.L.J. 757. \8) A.I.R. 1958 Patn• S~!.

(51 [1965] 2 L.L J. 541.

I~) A.I.R. 1953 Cal. 613 Ii• [19M] 2 L.L.J. !177.

(6) [1956) 2 L.L.J. 89.

their casus belli with the Company. But then, we are 1956 directly concerned in this appeal not with the Indusc t

1 P • . ctz ra rot"tnces trial Disputes Act XIV of 1947 but with the Central Trnnsport Services Provinces and Berar Industrial Disputes Settlement Ltd.

Act XXIII of 1947, and in the view which we take of v. the rights of the respondent under that statute, there Ragl111nath Gopal ' d fi 1 · th t' Putuardhan is no nee to express a na op1mon on e ques 10n whether a dispute simpliciter between an employer Venkatarama and a workman would be an industrial dispute within Ayyar J. s. 2(k) of Act XIV of 1947.

Now, the Central Provinces and Berar Industrial Disputes Settlement Act XXIII of 1947 with which we are concerned, is not in pari materiawith Act XIV

of 1947. It no doubt covers the ground occupied by that Act, and contains provisions relating to arbitration, adjudication, awards, strikes and lock-outs. But it contains more. It enacts in Ch. IV provisions which are intended to regulate the contract of employment between employer and workmen, a subject whic:h is covered by a distinct piece of Central legislation, Industrial Employment (Standing Orders) Act XX of

1946. The object of that Act was, as appears from the preamble thereto, "to require employers in industrial establishments formally to define conditions of employment under them'', whereas the object of the Industrial Disputes Act XIV of 1947 is, as set out in its preamble, "to make provision for the investigation and settlement of industrial disputes and for certain ot.her purposes". Thus, even though the two ena(}tmehts are pieces of what is termed labour legislation, their objects and their vision are different.

While Act XIV of 1947 may be said to be primarily concerned with disputes of labour as a class, Act XX of 1946 is directed to getting the rights of an employee under a contract defined.

Now, as the Central Provinces and Berar Industrial Disputes Settlement Act

XXIII of 1947 covers the ground occupied by both Act XX of 1946 and Act XIV of 1947, it would be proper to interpret the expression "industrial dispute"

therein in a. sense wider than what it bears in Act XIV of 1947, so as to cover not only disputes of workmen as a class but also their individual disputes.

r955 And this view receives considerable support from other

C I l-P 1 provisions of the Act. Section 41 enacts that an ap <nra rovnccs 1. . d h . . b d , Transport Services p 1cat10n un er t at section can e ma e either by an

ua. employer or employee concernPd or by a rrpresentav. tive of the employees concerned. Section 2(24) defines R,, giu.,.ath Gopal "representative of employees" as•meaning a union or

JJat;:c•ardhatt h h • • l -- W ere t ere 1s no un10n, persons e ected by the em- ;.

Vrnkatarama ployees not exceeding five.

Thus, there is a clear re- AyyarJ. cognition of the rights of an individual employee as distinguished from a class of employees, to move for redress. It is argued by Mr. Umrigar that this re- /. cognition is only for the purpose of s. 41 and that no inference can be drawn therefrom that the employee ._ has a similar right to appl, Y under s. 16(2). But the importance of s. 41 consists in this that it indicates that the Act has in contemplation the enforcement of individual rights of workmen also.

Then we have s. 53, which runs as follows:

"Save with the permission of the authority holding any proceeding under this Act, no employee shall be allowed to appear in such proceeding except through the representative of employees: Provided that w.here only a single employee is concerned he may appear personally".

This section again recognises the rights of employees : to agitate their individual rights under tbe provisions of the Act. Section 16 is intended, in our opinion, to enable an employee to enforce his individual rights - when there is an order of dismissal, discharge, removal or suspension, and in the context, "industrial dispute" must be interpreted as including the claim of an employee who has been dismissed, for reinstatement and compensation.

J' The view taken by the Industrial Court and the Labour Appellate Tribunal as to the meaning of "industrial dispute" in the Central Provinces and Berar Industrial Disputes Settlement Ant XXIII of 1947" is therefore correct, and this appeal must be dismissed with costs.

Appeal dismissed.

31st May, 1956

29th October, 1956

RAGHUNATH GOPAL PATWARDHAN

BHAGWATI

s. K. DAS

GovINDA MENON JJ.

Settlement Act, 1947

ss. 2(10)

Industrial Disputes Act

s. 2(k)

s. 16(2)

s. 2(10)

ss. 31 and 32

[1949] F.C.R. 321

s. 2(12)

s. 16

s. 2(k)

Industrial Disputes Act

H.J. Umrigar

E. J. Muharir

Rameshwar Nath

S. W. Dhabe

R. A. Govind

Raghunath Gopal

March 3. 1952

October 1, 1952

section 16(2)

Settlement Act XXIII of 1947

June 28, 1950

s. 16

s. 16(5)

February 5, 1954

s. 2(10)

s. 2(12)

s. 16(2)

October 19, 1954

Art. 136

State of Madhya Pradesh

Central Provinces Transport Services

Nagpur

s. 16

Umrigar

Section 2(10)

section 31

Section 2(12)

Ayyar

s. 2(13)

s. 2(12)

s. 2(10)

s. 2

Disputes Act XIV of 1947

Raghunath <Sopaz

Venkataramti

Section 2(12)

s. 2(k)

s. 2(k)

s. 2(10)

ss. 31

s. 16

s. 2

s. 2(12)

Madras

Calcutta

s. 2(k)

Rajamannar

s. 2(k)

s. 18

Raghunath Gopal

Mack

s. 41

Establishments Act XXXVI of 1947

Mitter

s. 2(k)

Venkatarama

Bhargava

Raghunath GoJ

Venkatarama

Bose

Ramaswami

Sarjoo Prasad

Balakrishna Ayyar

s. 2(k)

s. 16(2)

Disputes Act XIV of 1947

Ragl111nath Gopal

s. 2(k)

Settlement Act XXIII of 1947

Disputes Act XIV of 1947

While Act XIV of 1947

Settlement Act

Section 41

Section 2(24)

s. 41

s. 16(2)

s. 41

s. 53

Section 16


19S6

February 14

SUPREME COURT REPORTS

MUKTI LAL AGARWALA v.

[1956]

TRUSTEES OF THE PROVIDENT FUND OF

THE TIN PLATE CO. OF INDIA LTD.

AND OTHERS. '

[VIVIAN BosE, JAFER IMAM and CHANDRASEKHARA

AIYAR JJ.)

Provincial Insolvency Act, 1920 (V of 1920), s. 4-Insolvencv of employees of a company-Having certain amounts standing to their credit in the Provident Fund of the said company-Whether the •aid amounts were the properties of the insolvents over which they had di•- posing power and were thus available for distribution amongst the creditors-Pr<>vident Fund-R<1les-Oonstr1wtion-W ord "property" in the Insolvency Act-Meaning of.

The six employees in the Tin Plate Co. of India Ltd. were adjudged insolvents.

They were members in a Provident Fund of the said company, having certain amounts standing to their credit in the Fund.

The appellant-a creditor of the said employees-filed applies tions under s. 4 of the Insolvency Act against the company and Trustees of the Fund for orders that amounts standing to the ci:edit of the insolvents in the Provident Fun.d account were their proper- .ties and had vested in the court and were afailable for distribution amongst.the creditors and therefore should be brought into conrt.

The respondent pleaded in answer that the amount standing to the credit of ••oh insolvent in the Provident Fund represented the contributions of the company and of the employees and that the corpus was a trust fund in the hands of the trustees of the fund; so they were not properties of the insolvents over which they bad a disposing power and thaHhey were not debts due to the insolvents. It was said that according to the rules governing the Provident Fund the monies become payable to the employee or any other member of his fa.mily only on the happening of certain contingencies snch a.S retirement, discharge. dismidsal or death and that till then na right accrued to the in•olvent. It was further urged that the trustees could not be removed from the custody and control of the fund by the Official Receiver.

On a. construction of the Rules of the Provident Fond, -the Insolvency Court held in favour of the creditor. On appeal, the High Court held that under the rules of the Fund, the insolvents had no preaent disposing power over the monies standing to their credit and that the Fund had vested in the Trustee. On appeal to the Supreme

Court:

Held that it is reasonably clear from these rules that a snbscriber

~.C.R: SUPREME COURT REPOJtTS 101

htJos a present interest in the Fund though the moneys may become payable to him, or his nominee or heirs only in the future. Even where there is a declaration about the nominee who is to receive payment after the subscriber's death, the fund would still be the property of the subscriber in the hands of the nominee for the satisfaction of his debts, as there is no present gift to take effect immediately.

It could not be maintained that the subscribers had no right, title or interest in the fund or that such interest as they may possess was dependent upon a possible contingency which may or may not occur. The amount standing to the credit of a subscriber even if payable in future would be a debt due by the company to him within the meaning of s. 60 of the Code and hence liable to attachment and sale.

A person cannot enter into any arrangement or agreement by which his own title will cease in the event of bankruptcy for it would then be a fraud perpetrated on the Insolvency Law.

The liability of the estate to be attached by creditors on a bankruptcy or judgment is an incident of the estate, and no attempt to deprive it of that incident by direct prohibition would be valid.

Notwithstanding the rules of the Fund in the present case, the subscribers have an interest in the moneys which can vest in the Official Receiver on their adjudication.

The word "property" in the Insolvency Act is used in the widest possible sense which includes even property which may belong to or-is vested in another but over which the insolvent has a disposing power which he may exercise for his own benefit; and this part of the definition has reference obviously to powers of ap pointment and the power of a Hindu father who is the managing member of a joint family.

The fact that on the. date of the adjudication the insolvent could not transfer the property does not militate against the view that he has a vested interest in the same.

Banchharam Majumdar v. Adyanath Bhattacharjee, ([1909) I.L.R. 36 Cal. 936), . Dugdale v. Dugdale ([1888) 38 Ch. D. 176), Ex parte Dever. In re. Suse and Sibeth ([1887) 18 Q.B.

D. 660), Hudson v. Gribble ([1903) 1 K.B. 517), D. Palai1/a v.

T. P; Sen and another (A.I.R. 1935 Pat. 211), Secretary, Burma Oil Subsidiary Provident F?, tnd (IndiaJLtd. v. Dadibhar Singh (A.I.R. 1941 Rang. 256), Gajraj Sheokarandas v. Sir liukamchand Sarupchand and another (A.LR. 1939 Bom. 90), Anandrao alias Adkoba s/o Risaram-ji v. Vishwanath Watuji Kalar and others, (A.I.R. 1944 Nag. 144), Ismail J akaria if Co. v. Burmah Shell Provident Trust Ltd. (A.I.R. 1942 Sind 4 7), Bishwa Nath Sao v. The Official Receiver ([1936) I.L.R. 16 Pat. 60), and Sat Narain v. Behari Lal and Others ([1924] 52 I.A. 22), referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 123 to 127 and 135 of 1953.

Mukti Lal Agarwal a v.

Trustees of the Provide11t Ftmd of the Tin Plate Co. of India Ltd. and others

1956 On appeal from the judgment and decree dated the 12th May 1950 of the Patna High Court in Appeal MuktiLal f 0 Od N d Agarwala rom riginal r ers os. 266, 267, 268, 271, 274 an v. 280 of 1948 arising out of the Order dated the 26th Tn.steesof th• June 1948 of the Court of the District Judge, Purulia

p,.,,.; entFund of in Insolvency Cases Nos. 1/44, 13/46, 12/46, 10/46 and

th• Tin ".'late Co. 44/41 respectively. of India Ud. ' and others S. C. Isaacs (P. K. Chatterjee, with him) for the appellant.

Bhabananda Mukherji, S. N. Mukherji and B. N.

Ghose, for the respondents.

1956. February 14.

The Judgment of the Court was delivered by

CHANDRASEKHARA AIYAR J.-These appeals are by a creditor of six employees in the Tin Plate Co. of India Ltd. who had been adjudged insolvent@. The employees are members in a Provident Fund of the Tin Plate Co. and there were amounts standing to their credit in the said Fund.

The creditor, Mukti Lal Agarwala, filed applications under section 4 of the Insolvency Act for orders that the amounts standing to the credit of the insolvents in the Provident Fund account were their properties and had vested in the court and were available for distribution amongst the creditors. He sought a direction that the monies may be brought into Court.

The petitions were directed primarily against the Tin Plate Co. Ltd. and the Trustees of the Provident Fund. They pleaded in answer that the amount standing to the credit of each insolvent in the Provident Fund represented the contributions of the Company and of the employees and that the corpus was a trust fund in the hands of the trustees of the fund;

o they were not properties of the insolvents over which they had a disposing power and that they were not debts due to the insolvents. It was said that according to the rules governing the Provident Fund the monies become payable to the employee or any other member of his family only on the happening of certain contingencies such as retirement, discharge,

dismissal or death and that till then no right accrued 1956 to the insolvent.

It was further urged that the Muktt Lal trustees could not be removed from the custody and Agarwa!a control of the fund by the Official Receiver. v.

The Insolvency Court, which was the court of the Trustees of the.

District Judge at Purulia, heard the petitions and Pro1Jient Fund 0f found on a construction of the rules of the Provident the[; n/'":; d Co.

Fund that the monies standing to the credit of A & C

0:~ :hers. accounts in the name of each insolvent was his property over which he had a disposing power and hence Clrandrasekhara

they were ava.ilable for distribution among the credi- AiyarJ. tors under the Insolvency Act.

The trustees of the Fund and the Tin Plate Co. carried the matter on appeal to the High Court at Patna and they were successful. The learned Judges

(V. Ramaswami and Sarjoo Prasad, JJ.) held that under the rules governing the Fund the insolvents had no present disposing power over the monies standing to their credit and that the Fund was really vested in the trustees.

As the amount involved in the several petitions taken together was over Rs. 20,000, the High Court granted leave to the creditors to appeal to this court.

Tho main contentions urged by Mr. Isaacs on behalf of the appellants were three in number:- ( a) The monies standing to the credit of each insolvent in the Provident Fund are his property, though payable at a future date and the question of present disposing power arises only for bringing within the scope of the definition what may not otherwise be regarded as "property".

(b) Though the .Provident Fund rules speak of a trust Fund and trustees, in reality, there was no transfer of ownership by the employees in favour of the trustees and that there is no trust as such.

(c) In any event, even on the footing that a trust was created over the Fund, the beneficial interest continues in the employees and this interest would vest in the Official Receiver for the benefit of the creditors in insolvency.

We have to examine the soundness of these contentions.

1956 The Provident Fund was started on the lst January, 1929. The rules and regulations of this Fund Mukti Lal

Agaro; ala are found in the deed of trust dated the 15th July, v. 1930, marked as Exhibit I. These rules, as amended Trustees of the from time to time in certain respects by supple-

Pro•idntFund.0/ mentary deeds, are given in the appendix to this

the T"' Plat• Co. judgment.

oflnd1aLtd. 0 th k" f d f d" d" . h andoJhers n e ma mg o an .or er o a JU icat1on, t e whole of the property of the insolvent shall vest in Chandrasekhara the court or in a Receiver and shall become divisible

Aiyar J. among the creditors. (Section 28(2) of the Provincial Insolvency Act). The property of the insolvent for the purposes of vesting shall not include any property which is exempted by the Code of Civil Procedure, or by any other enactment for the time being in force from liability to attachment and sale in execution of a decree (section 28(5)). Section 2(d) of the Act states:" 'Property' includes any property over which or the profits of which any person has a disposing power which he may exercise for his own benefit". A person has a disposing power over property which he may exercise for his own benefit, such as a power of appointment conferred on him under a will or a settlement, or the power of a Hindu father who is the manager of a joint Hindu family to sell the shares of his sons in the family property in discharge of their pious obligation to pay off his debts.

In clause (b) of sub-section (2) of section 38 of the English Bankruptcy Act, 1914, this power is specified in these words:-

"The capacity to exercise and to take proceedings for exercising all such powers in or over or in respect of property as might have b"een exercised by the bankrupt for his own benefit at the commencement of his bankruptcy or before his discharge, except the right of nomination to a vacant ecclesiastical benefice;".

All that we have to find out is whether the amounts standing to the credit of the several subscribers in the fund who have been adjudged insolvents are divisible among their creditors. If so, they would vest

in the court or the Official Receiver and would become 1956 available for distribution. Whether they have any Mukt; Lal present interest in the monies is the primary ques- Agarwala ti on that falls to be considered. v.

Section 60 of the Civil Procedure Code sets out Trustees of the what property is liable to attachment and sale and PrO<Jident Fund of h · t Th fi t t f t" 60 the Tin Plate Co. at items are no . e rs par o sec 10n runs of India Ud. in these terms: and others "The following property is liable to attachment and sale in execution of a decree, namely, lands, Chandrasekhara houses, or other buildings, goods, money, bank-notes, Aiyar J. cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgmentdebtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf".

The exempted items do not apply. Clause (k) deals with funds governed by the Provident Fund Act.

Reference has, however, been made to clause (m) which speaks of "an expectancy of succession by survivorship or other merely contingent or possible right or interest".

Let us now advert to the relevant rules of the Fund. The object of the Fund as set o, ut in rule 2 is to accumulate for the benefit of the Company's employees who have joined the Fund certain sums as a future provision for them and for their families.

Under rule 3, any employee, who has completed one year's service with the Company, shall be eligible for membership. Rule 4 provides for a declaration as regards the disposition of the Fund in the event of death. This declaration can be cancelled and changed.

Rule 5 provides that if the declaration becomes obsolete, the trustees could decide who were to be recognized as the next-of-kin and that payment by them to such person will be an absolute discharge.

Every member shall be allowed to contribute any

Mukti Lal Agarwola

Trustees of the Provident Fund of the Tin Plate Co. of India Ud. and others

Chandrasekhara AiyarJ.

sum not exceeding-one-twelfth of his or her earnings and such amounts would be credited in the name of each member in an account called 'A' Account. (Rule 6). At the end of each year, an amount equal to the contribution by the member shall be paid by the Company and credited to another account to be opened in the name of the member and to be denominated his or her 'B' Account. An increased contribution by the Company in certain events at particular specified rates is contemplated by rule 7(B). This further sum will go into a 'C' account to be opened in the name of each member.

Rule 8 provides that the moneys of the Fund shall be invested by the Trustees in accordance with the provisions from time to time in force under the Indian Income-tax (Provident Funds Relief) Act, 1929. Every year the A, B and C Accounts are to be made up including the income from the investments according to certain calculations.

Then come the important rules 10, 11, 12, 13, 15, 16, 17 & 18. Though the Fund is intended as a future provision for the employees and their families, the membership is purely voluntary and arises on an application to the Company, the trustees having nothing to do with the admission.

It is only the management of the Fund and the control of its funds which vests in the trustees under rule 1.

There is no transfer of the ownership of the Fund.

The contributions made by the members are not compulsory in their nature. The monies of the Fund may, no doubt, be invested by the trustees, but the subscriber does not divest himself or herself of control over the Fund in certain respects. He or she can declare to whom the monies are to be paid in the event of his or her death. This declaration can be changed at any time.

If the service terminates after fifteen years, the subscriber can get the full amount in the A, B & C Accounts. If he or she retires with the Company's consent before completion of fifteen years' service, he or she can get the amounts standing in A & C Accounts together with a portion in B account. Dismissal, or misconduct, or resignation without the

Company's consent before completion of the 15 1956 years would still entitle the subscriber to the pay- Mukti Lal ment of the moneys in A & C Accounts. The provi- Agancala sion in rule 16 that on the death of any member, the v. amount will be paid to the next-of-kin, of course pro- Tmstces of the ceeds on the same footing that the property belongs Prot'ident Fund 0f t h b 'b Wh h h · th t tire Tin Plate Co. o t e su sen er. et er t e provisions a m 11 a Lt/ the event of the declaration becoming obsolete, or a

0 a.::i ;:,, er~· member becoming insane or demented, the moneys can be paid at the absolute discretion of the trustees Chandrascklrara to whomsoever they determine to be the next-of-kin, Aiyar J. or hold to be a proper and suitable person to receive payment, are valid is not a question that arises in these appeals.

Retirement or death is not a met'e possibility. It is a contingency that is sure to happen, sooner or later.

Dismissal for misconduct or resignation without consent before 15 years' service will secure earlier payment. (Rule 11).

It is reasonably clear from these rules that a subscriber has a present interest in the Fund though the moneys may become payable to him, or his nominee or heirs only in the future. Even where there is a declaration about the nominee who is to receive payment after the subscriber's death, the fund would still be the property of the subscriber in the hands of the nominee for the satisfaction of his debts, as there is no present gift to take effect immediately.

It is not easy to see how it could be maintained that the subscribers have no right, title or interest in the fund, or that such interest as they may possess is dependent upon a possible contingency which may or may not occur. The amount standing to the credit of a subscriber even if payable in future would be a debt due by the Company to him within the meaning of section 60 of the Code and hence liable to attachment and sale. See Banchharam Majumdar v. Adyanath Bhattacharjee(1).

Rule 17, which provides that on the adjudication of the debtor as an insolvent the amounts sta.nding to his credit in the Fund shall be liable to be forfeited

(1) [1909) I.L.R. 36 Cal. 936.

1956 to the Fund, was strongly relied upon by the respon-

Mukti Lal dents. But such a condition or agreement is invalid.

Agarwata A man may give (in India only by will) property or v. its income to a donee with a condition that the donee's Trustees of the interest will cease on bankruptcy and the property Provident Fund of will in that event go to anotherif insolvency superthe Tin Plate Co h

"JI ' t ' h Offi 1 if 1 d' Ltd venes, t e property w1 not ves m t e C1a 0 an~;':i.er~· Receiver. If there is no gift over on the cesser of the donee's interest, the property will reve"rt to the donee Cliandrasekhara and will vest in the Official Receiver on the donee's

Aiyar J. insolvency. But a person cannot enter into any arrangement or agreement by which his own title will cease in the event of bankruptcy, for it would then be a fraud perpetrated on the Insolvency Law. This principle has been enunciated in an early English case Wilson v. Greenwood(') in the following words and adopted in later cases too:

"The general distinction seems to be, that the owner of property may, on alienation, qualify the interest of his alienee, by a condition to take effect on bankruptcy; but cannot, by contract or otherwise, qualify his own interest by a like con di ti on, determining or controlling it in the event of his own bankruptcy, to the disappointment or delay of his creditors".

In Re Dugdale(') we find the following observations of Kay, J.-

"The liability of the estate to be attached by creditors on a bankruptcy or judgment is an incident of the estate, and no attempt to deprive it of that incident by direct prohibition would be valid.

If a testator, after giving an estate in fee simple to A, were to declare that such estate should not be subject to the bankruptcy laws, that would clearly be inoperative. I apprehend that this is the test.

An incident of the estate given which cannot be directly taken away or prevented by the donor cannot be taken away indirectly by a condition which would cause the estate to revert to the donor, or by a conditional limitation or executory devise which would

(ll (1818) 36 E.R. 469, 476; I Swans. 471, 486. (2! (1888] 88 Ch. D. 176, 182.

cause it to shift to another person".

T956 The proposition is thus stated in Williams on Bank- Mukti Lal ruptcy(') at page 293: "But the owner of property Agaru•ala

cannot~ by contract or otherwise, qualify his own v. interest by a condition determining or controlling it Tmstees of the in the event of his own bankruptcy to the prejudice Prcwid.etit Fund of f h' creditors" the Tm Plate Co. 0 lS of India Ltd.

It appears to us to be unnecessary to refer to all and others the decisions cited and relied upon in the course of the arguments on either side. A few cases may, how- Chandrasekhara ever, be dealt with. The English decisions relied upon ; liyar J. by the learned counsel for the appellant do not furnish much guidance. Ex part Dever. In re Suse and

Sibeth(2) was a case of what is obviously a contingent interest dependent upon a mere possibility. The decision in Hudson v. Gribble(8) dealt with a different question altogether. Under a scheme framed by the Municipal Corporation, persons in its service were to contribute to a Fund for the encouragement of thrift among their officers and servants a certain percentage of their salaries to be deducted from time to time from those salaries.

Were they exempt from payment of income-tax under the first rule of section 146 of the Income-Tax Act, 1842, was answered in the negative. The point was whether they were exempt because they were "sums payable or chargeab)e on the salaries by virtue of any Act of Parliament where the same have been really and bona fide paid and borne by the party to be charged".

It is true that Lord Justice Vaughan Williams says at page 525 that the sums contributed never ceased to be the property of the persons from whose salaries or wages they were deducted; and Lord Justice Stirling observes at page 528 "It is obvious that, though the amounts so deducted are not immediately paid to the person employed, they remain his property to a great extent".

Both of them refer to the fact that the subscribers were entitled to get back their contributions upon retiring from the service. But they were dealing with particular words employed in an Act of Parliament

(1) 16th Edition.

( 2) [1887] 18 Q.B.D. GGO.

(3) [1903] 1 K.B. 617.

7956 and the rules made under a Corporation Act. General observations of the kind should not be extracted from Mukli Lal h h h Agarwala t e context in w ich t ey were used and applied to

T, other facts and different language. ' Trt1stcesofthe Coming to the Indian decisions, D. Palaiya v. T. P.

Provident Fund of Sen and another(') is a case where the rules of a prothe Tin Plate Co. vident fund created by the Tata Steel Company were oflnddotia, Ltd. similar to the rules we have before us but the foran 1ef's , • fe1ture clause was construed as applymg only to the Chandrasekhara portion of the amount at the credit of members'

AiyarJ. account contributed by the company and it was read to mean that it was inapplicable to the subscribers' own contributions. Secretary, Burma Oil Subsidiary Provident Fund (India) Ltd. v. Dadibhar Singh(') which held against the vesting proceeded upon the footing that there was a trnst created in favour of the trustees. Even if so, what was to happen to the beneficial interest was not dealt with. The relevant observations are:

"The forfeiture does not vest the money in the trustees, the money having already vested in them.

The money cannot be attached as a 'debt' due to the judgment-debtor, because the word 'debt' as used in S. 60 and in 0. 21, R. 46, Civil Procedure Code means an actually existing debt that is a perfected and absolute debt, not merely a sum of money which may or may not become payable at some future time or the payment of which depends upon contingencies which may or may not happen''.

The decision of Beaumont, C. J. and Rangnekar, J. in Gajraj Sheokarandas v. Sir Hukamchand Sarupchand and another(') does not apply because in that case there was a clause in the articles providing that all moneys received by the East India Cotton Association from its members would be under the absolute control of the Association and could be used by it as if the moneys belonged to it absolutely. Further the deposit was also subject to certain liens. Subject to the liability to forfeiture and to the satisfaction of the liens, the deposit with interest was repayable to

(!) A.I.R. 1936 Pat. 211.

(2) A.LR. 1941 Rang. 266, 259.

(3) A.LR. 1999 Bom. 9Q. ·

the member on his ceasing from any cause to be a 1956 member. The facts were, therefore, very different.

M11kti Lal Anandrao alias Adkoba s/o Risaramji v. Vishwanath Agarwala Watuji Kalar and others(1) is again a case where the v. money ceased to belong to the employee and the title Tl'Usteesofthc was in the trustees. Referring to a Karachi case Provietit F1md of reported in Ismail J akaria & Co. v. Burmah-Shell the Tin late Co.

P 'd t T t Ltd (2) B J d' t' h d of India Ltd. rovi en rtts . , ose, .

IS 1ngu1s e It on and others the ground that there the money was not vested in the trustees but was only handed over to them for Cliandrasekhara the purposes of management, which was not the case Aiyar J. before him.

The learned counsel for the respondents strongly relied on Bishwa Nath Sao v. The Official Receiver(8) and argued that there can be no property within the meaning of the Insolvency Act unless the insolvent had a present absolute power of disposal over the same but the decision which is that of a Full Bench and which interpreted the decision of the Privy Council in Sat Narain v. Behmi Lal(') does not support any such position; all that was held was that on the insolvency of a father, his power to sell the shares of his sons in the joint family property to discharge the pious obligation vests in the Official Receiver, though the shares themselves do not so vest.

Sufficient has been stated 'above to show that notwithstanding the rules of the Fund in the present case, the subscribers have an interest in the moneys which can vest in the Official Receiver on their adjudication.

Even if we regard the deed creating the fund as a trust deed, notwithstanding that, no ownership has been transferred to the trustees and all that they have got is the right of the management and control, the subscribers, who joined the fund have undoubtedly got a beneficial interest which will vest in the Official Receiver as property liable to attachment and sale under section 60 which uses the language "whether the same be held in the name of the judgment-debtor or by another person in interest for him or in his behalf".

(1) A.LR. 1944 Nag. 144. \81 (1937] I.L.R. lG. Pat1rn GO.

(2) A.LR. 1942 Sind 47.

(4) [1924] L.R. 52 I.A. 22.

The learned Judges of the High Court held 'that the 'property' mentioned in the Insolvency Act must be such that the insolvent has an absolute and uncon- Agarwala v. ditional present disposing power over the same. With

Mukti Lal

Trustees of the great respect, this, however, does not seem to be a Providmt Fund of' correct interpretation. The wocd 'property' is used the r ... Plate Co. in the widest possible sense which includes even proofa~d~:h1:,~· perty wich ma; Y belong to or is .vestd in another ut over which the msolvent has a d1sposmg power which Chandrasekhara he may exercise for his own benefit; and as pointed

Aiyar J. out already, this part of the definition has reference obviously to powers of appointment and the power of a Hindu father who is the managing member of a joint family.

The fact that on the date of the adjudication the insolvent could not transfer the property does not militate against the view that he has a vested interest in the same. Reference was made to section 56(3) of the Provinoial Insolvency Act which provides that "Where the Court appoints a receiver, it may remove the person in whose possession or custody any such property as aforesaid i1 from the possession or custody thereof: Provided that nothing in this section shall be deemed to authorise the court to remove from the possession or custody of property any person whom the insolvent has not a present right so to remove".

This has no relevanoy to the point at issue.

Whenever possession and custody could be taken by the Receiver, the person in whose possession and custody the property is can be evicted. If possession or custody could not be taken, still the right of the insolvent will vest in the Official Receiver.

Mention has been made of three accounts in the Fund called A, B and C; the first represents monies contributed by the subscriber, the second consists of monies paid by the Company and the third represents what may be roughly described as bonus which represents deferred wages.

The learned counsel for the appellant confined the relief he wanted to the amounts standing to the credit of each subscriber in his A and C Accounts and conceded that the B Account monies would stand on_ a different footing. In

fact, even in the Insolvency Court the creditor con- 1956 cerned himself only with the A & C Accounts.

Mr. Isaacs contended at first that he was entitled Mukti Lal Agarwala to an order that the monies in the A & C Accounts v. should be brought to the Insolvency Court but Trusteesofthe later he abandoned this contention. For the respon- Proi; ident Fund of dents, it was urged that under section IO of the Emthe Tin Plate Co.

Ployees' Provident Funds Act, 1952, which came into of India Ltd. and ethers force after these proceedings were instituted, there could be no attachment.

This again is a question Chandrasekhara which is outside the scope of the present proceedings.

Aiyar J.

Once it is held that the right, title and interest of the insolvents in the A & C Accounts with the Fund vest in the Official Receiver, it is for him under the directions of the Insolvency Court to take steps to realize the same, in whatever manner the law allows him to do.

The learned counsel for the respondents handed to us a paper showing which of the respondents was still in service and which have been discharged, their dates of appointments and of joining the posts. Mohibulla, Anjab Alli and Hasimulla, respondents insolvents in Civil Appeal No. 124, Civil Appeal No. 127 and Civil Appeal No. 126, have been shown as discharged from service.

A.M. Joseph, Rasid Alli alias Tasim Alli, and Baldev Singh, respondents in Civil Appeals 135, 125 and 123, joined the Fund in 1933, 1932 and 1936 respectively and are still in service.

In the result, the appeals are partly allowed and there will be a declaration that the right, title and interest of the above mentioned insolvents in the moneys standing to their credi~ in A & C Accounts respectively will vest in the Official Receiver. In other respects the appeals will stand dismissed. The Tin Plate Co. which is the respondent No. 2, will pay to the appellant his costs here and in the High Court.

But the costs in this Court will be limited only to one set.

APPENDIX.

This Indenture made the fifteenth day of July, on~ thousand nine hundred and thirty BETWEEN THE

Mukti Lal Agarwala

Trustees of. the Pr0t1ident Fund of

the Tin Plate Co. of India Ud.

and others

Chandrasekhar a Aiyar ].

TINPLATE COMP ANY OF INDIA LIMITED a Joint Stock Company with Limited Liability duly incorporated under the Indian Companies Act andhavingits Registered Office at No. 4, Bankshall Street in the City of Calcutta (hereinafter called "the Company" of the first part HARRY DOtJGHLAS TOWNEND

CHARLES ROLAND HATFIELD AND JAMES PERCY AINSCOUGH all of No. 4, Bankshall Street aforesaid Merchants (hereinafter called the "the Trustees" which expression shall mean and include the said Harry Douglas Townend Charles Roland Hatfield and James Percy Anscough or other the -"-Trustees of the fund herein mentioned for the time being appointed as hereinafter mentioned) of the Second Part and the PERSONS whose names appear in the Schedule hereto or who may by separate writings agree to become parties hereto and bound hereby of the third part WHEREA~ the Company has decided to start as from the first day of January one thousand nine hundred and twenty-nine a Provident Fund for the benefit of the employees of the Company (hereinafter called "the said fund") and has accepted contributions from the employees from the first January, one thousand nine hundred and twenty-nine and for the management and regulations o.f such fund has framed rules and regulations NOW THIS INDENTURE WITNESSETH and it is hereby agreed between the parties hereto that the said Fund shall be governed by the following rules and regulations:

Rules and Regulations

1. The Fund shall be called "THE PROVIDENT

FUND OF.THE TIN PLATE COMPANY OF INDIA

.:J LIMITED". The management of the Fund and the control of its funds shall be vested in the Trustees who will undertake such management without remuneration.

2. The object of the Fund is to accumulate for the benefit of the Company's Employees who have joined

the Fund certain sums as a future provision for them and for their families.

Mukti Lal 3.

All employees of the Company (excepting only Agarwala such covenanted employees on the higher grades of Truste;; of tire pay as may be excluded by the Trustees at their Provident Fu11d of discretion) upon completion of one year's services the Tin Plate Co. with the Company shall be eligible for membership of of India Ltd. the Fund. Applications to join the Fund shall be in and others writing to the Company in a specified form and Chandrasekhara written notification shall be given by the Company Aiyar J. to applicants of their inclusion as members.

4. Every application for membership shall be accompanied by a declaration in a specified form signed by the applicant in the presence of two witnesses who shall not be in any way related to the applicant. Such declaration shall set forth the disposition in the event of his or her <lea th while a mem her of the Fund of the money which shall be standing to the applicant's credit in the Fund. Should a member at any time desire to cancel his or her form of declaration he or she may do so by submitting to the Company a revised or substituted form in writing duly signed and witnessed in the same manner as in the case of the original form which should specifically cancel and annul all previous forms of declaration deposited by the member with the Fund. ·

5. In the event of the declaration as made under rule 4 having become obsolete full discretion shall rest with the Trustees as to the disposition of any sums standing to the credit of a member on his or her decease and no person or persons shall be recognised as having any claims thereto save and except such as shall be ascertained by the Trustees or their delegate duly appointed to make enquiry in that behalf upon satisfactory evidence adduced as to which the Trustees or their delegate appointed to conduct the enquiry shall be sole judge to be the next-of-kin of the deceased member and payment by the Trustees the moneys representing his or her share in the fund

Mukti Lal Agaru•ala

Trustees of the Provident Fund of the Titi Plate Co. of India Ud.

and others

Chandrasekhara

Aiyal' J.

to the persons or person so ascertained shall operate as an absolute discharge to the Trustees from all liability therefor to all persons whomsoever.

Each member shall be allowed to contribute a definite proportion not exceeding one-twelfth of his or her earnings during auy one year which shall be deducted from his or her earnings in monthly or weekly instalments. Conthbutions as above shall be credited to an account to be opened in the name of each member to be denominated his or her 'A' Account.

For the purpose of this fund, earnings shall be deemed to mean solely the monthly or weekly sum paid to the Employee for wages excluding from the purview of such term all accretions thereto and perquisites in the way of acting allowance commissions bonus payments overtime messing housing allowance lodging money travelling expenses and all such similar payments.

(a) On or as at the thirty first December in each year a sum equal to the amount contributed by each member to his or her 'A' account during that year shall be credited by the company to another account to be opened in the name of each member and to be denominated his or her 'B' Account. The Company reserves to itself liberty to make such further contributions as may be requisite for the purposes of Rule 14 below.

(b) If the net dividend paid by the Company on its ordinary share capital in respect of any financial year shall be at a rate of not less th-an seven and a half per cent on such ordinary share capital a further sum calculated as hereinafter set out shall be paid by the Company.

Unless the Company shall decide that such further sum shall be paid into a separate Fund or otherwise than into this Fund such further sum shall be paid into this Fund to another account to be opened in the name of each person who shall have been a member on the thirty-first day of December in the said financial vear and to be denominated his or her 'C' account. The amount of such further sum

shall depend upon the rate of such net dividend and shall be ascertained according to the following scale:- Rate of net dividend paid as.aforesaid.

Not less than 7t% and not exceeding 8i% Exceeding 8i% but not exceeding 11 !°/c, Exceeding 11!% but not exceeding 13i% Exceeding 13!% but not exceeding 16!% Exceeding 16!% but not exceeding 18!% Exceeding 18!% but not exceeding 21!% For each additional 2t%

Amount of the further sum payble.

One week's wages.

Two weeks' wages.

Three weeks' wages.

Four weeks' wages.

Five weeks' wages.

Six weeks' wages.

An additional week's wages.

For the purpose of this clause one week's wages "shall mean in the case of a worker in receipt of daily wages six times his daily rate of pay at the thirty first day of December in such financial year as aforesaid and in the case of a worker in receipt of monthly pay one fifty-second part of twelv~ times bis monthly rate of pay at the thirty-first day of December in such financial year".

"Provided always that if at any time the Company's Ordinary share capital shall be 1ncreased by capitalisation of any of its undistributed profits (not including profits arising from a revaluation of assets, from the sale of assets or from the sale of shares at a premium) or reduced, then the rate of net dividend paid by the Company in respect of any financial year after the coming into force of any such increase or reduction shall for the purposes of this lause be deemed to be the rate of net dividend actualJy so paid by the company altered in the ratio which the nominal value of the Company's paid up capital at the end of such fin!lncial year (excluding therefrom all

MuktJ Lat Agarwala

Tt'ustees of lhe Provident Fl#fd o}

the Tin Plau Co.·

of lndia Ltd,

and othBr•

Chandt'asekhar•

Aiyar J,

7956 portions of such capital which represent capitalised profits derived from revaluation of assets sale of .U.ukti Lal

Agarwala assets or issue of shares at a premium) shall hear to v. the value which it would have had if such increase Trustees of the or increases or reduction or reductions of capital as Prov; •• 1."'t F1111d.of shall come into effect after the first day of January

the 11" Plate Co. one thousand nine hundred and thirty eight had never of India lid. k l ,, aud others ta en p ace .

"The payment into each member's '0' Account Cha11drasekha.-a in accordance with the above provisions shall be

MyarJ. made as soon as conveniently may be after the holding of the annual Ordinary General Meeting of the Company at which such net dividend as aforesaid is finally declared and ascertained".

The moneys of the Fund shall be invested by the Trustees in accordance with the provisions from time to time in force-under the Indian Income-tax (Provident Funds Relief) Act, 1929.

(1) (a) On or as soon as may be after the thirty first day of December in each year the Trustees shall determine the amount standing to the credit of each member in his 'A', B and C accounts on that date and for that purpose a general account shall be taken of the assets of the fund and of the receipts payments dealings and transactions in connection therewith during the calendar year terminating on such thirty first day of December (hereinafter referred to as the period of account).

(b) Each such general account shall comprise three revenue Accounts to be known as the 'A' Revenue Account, the 'B' Revenue Account and the "0" Revenue Account respectively. The "A" Revenue Account shall be credited with all income accrued or profits realised during the period of account in respect of the investments representing moneys lying to the credit of the "A" accounts and the appreciation (if any) of such investments during the period of account. The "A" Revenue Account shall be debited with all losses (if any) in respect of

depreciation of such investments and all sums paid during the period of account in respect of interest on contributions to retiring members or the representatives of deceased members as hereinbefore provided.

The 'B' Revenue Account shall be credited with all forfeits and all income accrued or profit realised during the period of account in respect of the investments representing moneys lying to the credit of the 'B' Accounts and the appreciation (if any) of such investments during the period of account. The 'B' Revenue account shall be debited with all losses (if any) in respect of depreciation of such investments and all expenses of the Fund. The "C" Revenue Account shall be credited with all income accrued or profit realised during the period of account in respect of the investments representing moneys lying to the credit of the 'C' Accounts of the members, the appreciation (if any) of such investments during the said period and all interest received by the Trustees on withdrawals made under Rule 18 hereof.

The "0" Revenue Account shall be debited with all losses (if any) in respect of depreciation of such investments as last aforesaid.

(c) The balance of the "A", "B" and "C" Revenue Accounts respectively shall be appropriated to the "A", "B" and "C" accounts of the members in each case in proportion to the amounts standing to the credit of their respective "A", "B" and "C" accounts at the close of the period of accounts provided always that for the purpose of such appropriation the Trustees may if they think fit disregard any sum standing to the credit of any member in his "A",

"B" or the "C" Revenue Account not exceeding one rupee and may carry forward to the next period of account any part of the balance of the. "A" revenue account, the "B" revenue account or the "0" Revenue account which will not suffice to pay a complete onehalf percent on the total amount standing to the credit of the "A" "B" or "0" accounts as the case ' may be of all the members. Provided also that in ascertaining the amount at credit of a member's "0"

~956

Mukti Lal Agarwala

Trustees of the Pf't11Jident Fund of the Tin Plate Co; of lndiaUd.

and others

Chattdrasekhara

Aiyar J.

 accoup.t for the purpose of calculating the proportions herein mentioned there shall be deducted from such Mukti Lal

Agarwala "C" Account only those sums withdrawn under the

v. provisions of Rule 18 hereof on which interest is not Trustees of the payable by him to the Fund.

Provident Fund 01

(d) For the purpose of such Revenue Account the Tin Plate Co. the Trustees shall value the investments and securio/ India Ltd,

and others ties of the Fund, and if the same shall in their opinion,

Chandrasekhara

AiyarJ.

which shall be final and conclusive, have appreciated or depreciated since the date of purchase, or if a general account shall have been taken subsequent to the date of purchase then since the date of the last preceding general account the amount of such appreciation or depreciation shall be credited or debited to such revenue account as though the same were a realised profit or loss as the case may be.

(2) Notwithstanding the terms of Rule 9(1) the Trustees shall have the right should they in their uncontrolled discretion deem it necessary in the interests of the members as a whole to take out a general account of the assets of the fund as at any date in any year other than or in addition to the thirty first day of December and Members "A'', "B" and "C" accounts shall be adjusted accordingly.

(3) In the case of the taking of a general account under rule 9(2) the words "the period of account" used throughout these rules shall mean and refer to (where the context shall admit) the period whereof such general account of the assets of the fund was taken under rule 9(2).

10. On retirement of any member with the consent of the General Manager of the Company before completion of more than fifteen years service with the company he or she shall be paid the entirety of the amount then standing to the credit of his or her "A" and "C" account together with one-fifteenth of the moneys standing to the credit of his or her "B" account for such completed years service.

11. If any member before completion of fifteen

yea-rs service with the company shall be dismissed for misconduct or shall resign therefrom without the consent of the General Manager he or she shall be paid only the amount then standing to his or her credit in "A" account and "0" Account.

12. The residue of any moneys standing to the credit of a member's "B" account after payment of the moneys payable to him or her thereout under Rule 10 and the entirety thereof if he or she shall be dismissed or resign in the circumstances as mentioned in rule 11 shall be forfeited to the Fund and carried to the "B" Revenue Account to be dealt with under Rule 9(1).

13. Upon termination by any means of a member's service if more than fifteen years thereof shall then have been completed he or she shall be paid the entirety of the amount then standing to the credit of his or her "A", "B" and "0" account.

For the computation of length of service under the foregoing rules continuous service only shall be reckoned as from the date or last date on which the employee entered or re-entered service.

14. If in consequence of depreciation of securities the amount as received by a member or his or her representatives in respect of his or her "A" account under the last preceding rules shall fall short of the total of the contributions as made thereto the company may make an additional and contingent contribution to the fund to the amount of the deficiency for payment thereof to the member.

15. If it shall be proved to the satisfaction of any of the trustees that any member has become insane or otherwise incapacitated from exercising proper control over his affairs they make payment out of the moneys standing to his or her credit in the Fund and at such time or times to such person or persons on his or her account as they may in their absolute discretion think expedient.

The above provisions for

1956

Mukti Lal

Agarua/a

Trustees of the Provident Fund of the Tin Plate Co, of India Ltd. and others

Chandraseldiara

Aiyar J.

Mukti Lal

Agarwala

Trustees of the Provident Fund of

the Tin Plate Co, of IndiaUd.

and others

Chandrasekhara Aiyar J.

payment shall not apply to moneys forfeited under Rule 17 which shall be dealt with by the Trustees at their absolute discretion thereunder.

16. On the death of any member while still in the service pf the Company the sum standing to his or her credit in "A'', "B" and "C" accounts shall be paid to the person or persons named in the declaration form signed under Rule 4 or failing such declaration to the person or persons who shall be ascertained to be next-of-kin under the provisions of Rule 5.

17. No member of the Fund shall have any claim on the moneys standing to his or her credit therein otherwise than in accordance with the provisions of these rules and no person or persons other than a member save and except such as shall be nominated in the declaration under the provisions of Rule 4 or shall be ascertained to be the member's next-of-kin under Rule 5 shall have any claim thereto in any right whatsoever. Any assignment by a member of the moneys which would otherwise be payable to him or her under these rules whether absolute or by way of charge shall be wholly void and in the event of any member executing any such assignment or being adjudicated insolvent or if any order shall be served upon the Trustees of the Company Ior payment of the moneys standing to his or her credit to any person under any attachment or other process of any Court the said moneys shall at the time when they would have otherwise become payable to the member but for such assignment insolvency or attachment be liable to be forfeited to the FUND PROVIDED AL- WAYS that the Trustees shall at their absolute discretion and without any legal obligation so to do pay and apply the same for the benefit of the member or his or her dependants and relatives.

18. Withdrawals by members of the money standing to their credit with the Fund shall not be allowed by the Trustees except that withdrawals from the

p, mount standing to the credit of a member's '0'

account may be allowed on the special grounds to the r956 extent and subject to the conditions laid down by the Indian Incom.e-Tax Act and the Rules made :;:!~;;;"~ thereunder in that behalf as in force from time to v. time.

Tf'ustees of the Pr<Yf)ident Fund of

19. There shall be not less than three Trustees of the Tin Plate Co. the said Fund. of India Ltd.

20. If and whenever any TrAJstees shall die resign or become incapable of acting or shall permanently leave India one or more persons in his place shall be appointed by the Company as such Trustees.

21. Nu copy shall be furnished to any member of his or her account but member may have inspection thereof in the Books of the Fund at all reasonable times.

22.

These Rules may from time to time be altered and amended and other Rules and Regulations may be added or substituted for the management and working of the Fund in every case by the Company and the Trustees and without reference to the parties hereto of the third part, provided always that should such addition or alteration curtail the rights or increase the obligations of the members of the Fund any member shall be entitled to withdraw from and at his or her own request in writing to the Fund, cease to be a member of the Fund in which case he or she shall be paid the money standing to bis or her credit in the Fund (provided that th, e same shall not have become forfeited under Rule 17) or such portion thereof as be or she would have been entitled to if he or she had then retired from the service of the Company with the consent of the General Manager of the Company.

Any such alteration or amendmet shall be notified in writing to the parties responsible for according recognition to the Fund under the provisions of the Indian Income-Tax (Provident Fund Relief) Act, 1929. .

and others

Chandrasekhara

Jliyar J.

23. The Company may at any time in its discretion

Mw.ti Lal dissolve or terminate the Fund and shall in such case Agarwala carry out the winding up of the Fund and the memv. hers of the Fund shall receive all the moneys stand- Trustees of the ing to their credit provided they shall not then have PrOfJidem F""d 01 become forfeited under Rule 17 'A', 'B' and 'C'. the Tin Plate Co. of lndiaUd.

and others

Chandrasekhara

AiyarJ.

24. Any payment made in accordance with the Rules of the Fund to the member, his nominee or next of kin as ascertained or to any person or persons other than the foregoing shall operate as a. full and efficient discharge of all liability of the Fund in respect thereof.

25.

These Rules and Regulations shall come into force with effect from the 1st day of January, 1929.

MUKTI LAL AGARWALA

VIVIAN BosE

JAFER IMAM

AIYAR JJ.

Provincial Insolvency Act, 1920

s. 4

Tin Plate Co. of India Ltd.

s. 4

Supreme

Court

SUPREME COURT REPOJtTS 101

s. 60

Anandrao alias Adkoba

Mukti Lal Agarwal

S. C. Isaacs

P. K. Chatterjee

Bhabananda Mukherji

S. N. Mukherji

B. N.

Ghose

CHANDRASEKHARA AIYAR

Mukti Lal Agarwala

section 4

Tin Plate Co. Ltd.

Muktt Lal

Insolvency Court

Purulia

High Court at Patna

V. Ramaswami

Sarjoo Prasad

Isaacs

Chandrasekhara

Aiyar

Section 28(2)

the Code of Civil Procedure

section 28(5)

Section 2(d)

section 38

English Bankruptcy Act, 1914

Section 60

sec 10

Mukti Lal Agarwola

Chandrasekhara AiyarJ.

Chandrascklrara

section 60

Mukti Lal

India

Kay

Chandrasekhara

liyar

Suse

section 146

Income-Tax Act, 1842

Parliament

Vaughan Williams

Stirling

Mukli Lal

S. 60

Civil Procedure Code

Beaumont

Rangnekar

East India Cotton Association

M11kti Lal Anandrao alias Adkoba

Cliandrasekhara

section 60

L.R. 52 I.A. 22

section 56(3)

Provident Funds Act, 1952

India Ltd.

Mohibulla

Anjab Alli

Hasimulla

A.M. Joseph

Rasid Alli alias Tasim Alli

Baldev Singh

Tin Plate Co.

Chandrasekhar

Companies Act

Calcutta

CHARLES ROLAND HATFIELD

JAMES PERCY AINSCOUGH

Douglas Townend Charles Roland Hatfield

James Percy Anscough

Agarwala

Tin Plate Co.

Chandrasekhara

Mukti Lal Agaru•ala

Chandrasekhara

Aiyal

Mukti Lal Agarwala

Chandrasekhara Aiyar

Jliyar

and others

Chandrasekhara

Jliyar J.

23.

Agarwala

1st day of January, 1929