S.C.R.

SUPREME COURT REPORTS 335

necessary to re-examine the witnesses who have already been examined m court unless the court thinks it necessary.

Appeal allowed. Case remanded for retrial.

NIEMLA TEXTILE FINISHING MILLS LTD. v.

THE 2No PUNJAB INDUSTRIAL TRIBUNAL

(with connected appeals and petitions) rs. R. DAS C.J., BHAGWATI,

VENKATARAMA

AYYAR, B. P. SINHA and S. K. DAs JJ.]

Industrial Disputes Act, 1947 (XIV of 1947)-Constitutional 1'alidity-Legislative competency-Powers of Industrial Tribunals- Whether Legislative-The Government of India Act, 1935 (25 & 26 Geo. 5, Ch. 42), Sch. VII, List III, Entties 27, 29-Constitution of India, Arts. 14, 19 (1) (f) and (g).

The disputes between the appellants and their workmen were referred to the Industrial Tribunal for adjudication by the appropriate Government, under the provisions of the Industrial

Disputes Act, 1947.

It was contended for the appellants that the reference to the Tribunal was bad because ( l) the Act was ultm vires. the Constitution inasmuch as its provisions are Yiobtive of the fundamental rights enshrined in Art. 14 and Art. 19 (I) ( f) and ( g) of the Constitution, (2) the Industrial Tribunals are legislating in the guise of adjudication, and this amounts to delegation of the powers of legislation which it was not competent to the Central Legislature to do so, and ( 3) the definition of the term "industry" comprises industrial as well as non-industrial concerns and, therefore, the Act was not within the legislative competence of the Central Legislature under Entry 29 of List Ill of the Seventh Schedule to the Government of India Act, 1935.

Held: (1) The Industrial Disputes Act, 1947, 1s not unconstitutional and the provisions of the Act do not contravene Arts. 14 and 19 (l) (£) and (g) of the Constitution.

The basic idea underlying all the provisions of the Act is the 'settlement of industrial disputes and the promotion of industrial peace so that production may not, be interrupted and the <:ommunity in general may be benefited, and the appropriate Government has, therefore, a discretion in the matter of making the reference to one or other of the authorities under the Act and also in the matter of carrying out the various provisions of the Act, including _ the curtailment or extension of the period ot

Dharmanand Pant

State of Uttar

Pradesh

Govinda Almon J.

January 10

op.eratin of the . awrd of the Tribunal, having regard to the Niemla Textile ex1genc1es of the s1tuat1on and the objects to be achieved.

Finishing Mills Ltd. v.

The 2nd Punja6 Industrial Tribunal

(2) Industrial Tribunals while settling particular industrial disputes refered to them, lay down certain general principles to be observed in regard to the determination of bonus, reinstate~ ment of dis1nissed or discharged en1ployees and other allied topics 1nainly with the object of promoting industrial peace, but these principles or rules of conduct, though they are applied as precedents by the Industrial Tribunals while adjudic.iting upon other similar industrial disputes referred to them, are not rules of la\V and do not amount to legislation.

(3) The Act is not ultra vires the legislature, as the matters included within the definition of the term "industry" are vvithin the legislative competence of the Central Legislature under Entries 27 and 29 of List lII of the Seventh Schedule to the Government of India Act, 1935.

CIVIL APPELLATE JuR!smcTION : Civil Appeals Nos. 333-335 of 1955 and Petitions Nos. 65, 182 and 203 of 1956.

Appeals by special leave from the judgment and order dated April 15, 1955, of the Punjab High Court at Chandigarh in Civil Writs Nos. 131-133 of 1955 and Petitions under Article 32 of the Constitution of India. for the enforcement of fundamental rights.

Veda Vyasa, Bhagirath Das and M. L. Kapur, for the appellants.

Veda Vyasa, S. K. Kapur and N. H. Hingorani, for the petitioners in Petitions Nos. 65 and 182 of 1955.

Veda Vyasa, Bhagirath Das and B. P. Maheshwari, for the petitioner in Petition No. 203 of 1956.

S. M. Sikri, Advocate-General of Punjab, Jindra Lal and T. M. Sen, for respondent No. 2 in the Appeals and respondents Nos. 1 and 2 in the Petitions.

Sadhan •Chandra Gupta, Bawa Shiv Charan Singh and /anardhan Sharma, for respondent No. 3 in the appeals and in Petitions Nos. 182 and 203 of 1956.

Porus A. Mehta and T. M. Sen, for the Intervener in Appeal No. 333 of 1955 (Attorney-General of India on behalf of the Union of India).

Veda Vyasa, S. K. Kapur, and N. H. Hingorani, for the lnterveners in the appeals (petitioners in Petitions Nos. 65 and 182 of 1956).

1957. January 10. The Judgment of the Court was delivered by

BttAGWATI J.-These three appeals with special leave from the orders of the High Court of Punjab and three petitions under Art. 32 of the Constitution challenge the vires of the Industrial Disputes Act, 1947 (XIV of 1947), hereinafter referred to as the Act.

The appellants in the three appeals are engaged in the manufacture and production of textiles. There were disputes between them and their workmen, and, by two notifications each dated March 4, 1955, in

regard to the first two of them and by a notification dated February 25, 1955, in respect of the third, the State of Punjab, respondent No. 2, referred the said disputes for adjudication to the 2nd Punjab Industrial Tribunal, Amritsar, respondent No. 1, who entered upon the said references and issued notices to the appellants to file their written statements. The appellants in Civil Appeal No. 335 of 1955 filed their written statement on March 31, 1955, without prejudice to their contentions that respondent No. 2 was not competent to refer the disputes for adjudication by respondent No. 1 and that respondent No. 1 had no jurisdiction to entertain the reference. The appellants in Civil Appeals Nos. 333 and 334 of 1955 were called' upon to file their written statements on or before- April 23, 1955, which they did raising the same objections as to the competency of respondent No. 2 and the jurisdiction of respondent No. 1.

On April 14, 1955, however, the appellants in all the three appeals filed writ petitions in the High Court under Art. 226 of the Constitution against, inter alia, respondents Nos. 1 and 2 asking for writs in the nature of prohibition restraining respondent No. 1 from proceeding with the references, writs in the nature of certiorari directing respondent No. 1 to transmit the records of the proceedings for being quashed and writs in the nature of mandamus directing respondent No. 2'

Nie:nla Textile Finishing Mills Ltd. v.

The 2nd Punjab lnduJ trial T ribuna~

Niemla Textile

Finishing Mills Ltd. v.

The 2nd Punjab ..ifndustrial Tribunal

BhagwatiJ.

to cancel the notifications under which the said references had been made. The grounds which were urged in support of these applications were that their mills were controlled industries within the definition of the term contained in cl. ( ee) of s. 2 of the Act as amended by s. 32 of Act LXV of 1951, that they were engaged in the production and manufacture of textile goods and were a textile industry within the meaning of the word "textiles" as mentioned in the First Schedule to Industry (Development and Regulation) Act, 1951, and had been declared an industry of which the Union Government had taken control within the meaning of the said Act, that the disputes purporting to be referred by respondent No. 2 to respondent No. 1 were industrial disputes concerning a controlled industry specified in this behalf by the Central Government and that, therefore, the appropriate Government for the purposes .of the Act so far as their mills were concerned was. the Union Government and not respondent No. 2 and that respondent No. 2 had no jurisdiction or authority to refer the existing or apprehended disputes between them and their workmen to respondent No. 1 and the references being invalid there was no jurisdiction in respondent No. l to entertain the said references.

These petitions came up for hearing before a Division Bench of the High Court consisting of the learned Chief Justice and Mr. Justice Kapur who dismissed the same in limine observing that they were premature, obviously meaning that respondent No. 1 could deter- . mine the objection in regard to its jurisdiction to entertain the references and unless and until it did so the appellants had no cause of action to file the said petitions.

It appears that on or about April 12, 1955, a Division Bench of the said High Court consisting of the learned Chief Justice and Mr. Justice Falshaw had admitted a writ pet1t10n based on the very same grounds and bad granted a stay of proceedings before respondent No. 1 therein. It further appears that on April 18, 1955, the very same Bench which dismissed the petitions of the appellants in limine on April 15, 1955, admitted a writ petition filed by the Saraswati

Sugar Syndicate Ltd., inter alia, against respondent No. 2 wherein, besides the grounds urged in their writ petitions, an additional ground questioning the constitutionality of s. JO of the Act had also been urged and ordered the stay of proceedings before the Industrial Tribunal.

The appellants filed on April 18, 1955, applications before the High Court for leave to appeal to this Court and for stay of further proceedings before respondent No. 1. Notices were issued by the High Court to the respondents in those applications but stay of further proceedings was refused.

The appellants having come to know of the order pJssed by the Division Bench of the High Court on April 18, 1955, on the writ petition of the Saraswati Sugar Syndicate Ltd., filed petitions on April 19, 1955, for review of the orders dated April 15, 1955, dismissing their writ petitions in limi1te.

In these petitions for review the . appellants, with a view to bring their applications within the ratio of the writ petition of the Saraswati Sugar Syndicate Ltd., alleged that their counsel had inadvertently failed to raise the contention that s. 10 of the Act was ultra vires the Constitution.

The High Court was prepared to issue notices to the respondents but was not prepared to grant the stay of further proceedings with the result that on the request of the counsel for the appellants the said petitions for review were dismissed on April 20, 1955.

On April 25, 1955, the appellants filed petitions in this Court for special leave to appeal under Art. 136 of the Constitution.

In these petitions for special leave, they contended that s. 10 of the Act was void and infringed the fundamental right guaranteed under Art. 14 of the Constitution "being discriminatory in its ambit".

Special leave was granted to all the three appellants by this . Court on May 2, 1955, and an order for consolidation of these appeals was made on June 1, 1955.

This plea as to the unconstitutionality of s. 10 of the Act was elaborated by the appellants in para 12 of their statement of the case filed before us :-

"That section 10 of the Industrial Disputes Act is also ultra vires of the Constitution of India, as it conflicts with the provisions of Art. 14 of the

Niemla Textile

Finishin.I!

Mills Ltd.

The '2nrl Punjab Industrial Tribunal

Bhawati J.

, Viemla Textile Finishing Mills Ltd. v.

The 2nd Punjab Industrial Tribunal

Constitution. The section is discriminatory in ambir and scope. It confers on the appropriate Government unregulated and arbitrary powers inasmuch as no rules have been made to justify differentiation between parties similarly situated and circumstanced in every respect. There is no rational basis of classification providing different procedures for dealing with the same or similar matters. The reference to a Board under section IO (1) (c) of the Act is certainly more beneficial, speedy, inexpensive and less cumbersome."

Not content with merely challenging the constitutionality of s. IO of the Act, the appellants in Civil Appeal No. 333 . of 1955 filed in this Court on October 3, 1956, a petition under Art. 32 of the Constitution, being

- Petition No. 203 of 1956, challenging the vires of the whole Act on various grounds which had not been urged in the proceedings taken by the appellants till then. We shall not enumerate all these grounds but refer at the appropriate place only to those contentions which were urged before us by the learned counsel at the hearing.

A similar petition under Art. 32 of the Constitution had been filed by the Atlas Cycle Industries Ltd., on September 15, 1956, being Petition No. 182 of 1956, containing iqentical grounds of attack against the constitutionality of rhe Act. A notification had been issued on April 27, 1956, by the State of Punjab referring the industrial disputes between them and their workmen for adjudication by the 2nd Industrial Tribunal and they asked for a writ of certiorari quashing the said reference and writs of mandamus and/or prohibition directing the State of Punjab to withdraw the said reference from the Industrial Tribunal and prohibiting the Industrial Tribunal from proceeding with the same.

Petition No. 65 of 1956 had been filed on March 21, 1956, by five workmen of the Indian Sugar and General Engineering Corporation Ltd., carrying on an undertaking in the name and style of the Saraswati Engineering Works. A notification had been issued by the State of Punjab referring th~ disputes which had

.arisen between them and their workmen to the 2nd Industrial Tribunal and one of the matters thus referred for adjudication was whether the workmen dismissed or discharged after July 15, 1955, should be reinstated.

The petitioners were temporary hands employed by the Saraswati Engineering Works in place of the permanent workmen who had been dismissed or discharged after July 15, 1955, and they, in the interests of themselves and 200 other employees who were in the same category, apprehended that if the Industrial Tribunal ordered the reinstatement of the permanent workmen who had been dismissed or discharged, they would be out of employment. They had apparently the support of the Saraswati Engineering Works who were keen to retain them in their employ and filed the petition challenging the constitutionality of the Act on identical grounds.

Besides thus challenging the vires of the Act, they also urged 1n their petition that the undertaking was a controlled industry and the appropriate Government which was .competent to make the reference was the Union Government and not the State of Punjab. They also .asked for the same reliefs as in Petition No. 182 of 1956.

The Attorney General of India asked for and obtained leave to intervene on behalf of the Union of India at the hearing of the Civil Appeals Nos. 333 to 335 of 1955 and so did the petitioners in both the Petitions Nos. 182 of 1956 and 65 of 1956. These petitions along with Petition No. 203 of 1956 were set down for hearing and final disposal after the Civil Appeals Nos. 333 to 335 of 1955 and all of them were heard together. This common judgment will govern the decision in all.

It may be noted at the outset that the question as to the various undertakings being controlled industries and the appropriate Government for making the references of the industrial disputes arising between them and their workmen being the Union Government and not the State of Punjab which was the very basis of the writ petitions filed in the High Court and was .also one of the grounds on which special leave to

Niemla Textile

Finishing Mills Ltd. ,._ The 2nd Pu11jab Industrial Trib1111al

Bhagwati J.

~Viemla Textile

Finishing AJills Ltd.

The 2nd Punjab l11d11strial Tribunal

Bhagwati J.

appeal had been obtained from this Court was ultimately abandoned in the course of the hearing before us and nothing more need be said about it. The only contention which has been urged before us in these three special leave appeals and the three Art. 32 petitions is in regard to the vires of the Act.

In order to appreciate the grounds of attack against the constitutionality of the Act it is necessary to briefly survey the provisions of the Act as it stood before the amendments made by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956 (XXXVI of 1956). The Act was passed, as the preamble shows, with the express purpose of making provision for the investigation and settlement of industrial disputes and for certain other purposes therein appearing.

Section 2(j) defines "industry" to mean any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employme11t, handicraft or industrial occupation or avocation of workmen. Section 2(k) defines a11 "industrial dispute" to mean any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or nonemployment or the terms of employment or with the conditions of labour, of any person. Chapter II of the Act sets out the authorities under the Act and they are (l) The Works Committee, (2) Conciliation Officers,

(3) Boards of Conciliation, (4) Courts of Enquiry, and

(5) Industrial Tribunals. These are different authorities with different poc ers and the purposes for which they are set up and their functions are prescribed i'> the Act. The Works Committee consists of reprcsentati ves of employers and workmen engaged in a particular establishmrnt and is constituted in the prescribed manner in order to promote measures for securing and preserving amity and good relations between the employers and workmen and to that end to comment upon matters of their common interest or concern and en<leavour to compose any material difference of opinion in respect of such matters. The Conciliation Officers are appointed by notification by

the appropriate Government charged with the duty of mediating , in and promoting the settlement of industrial disputes. Boards of Conciliation are constituted by notification by the appropriate Government as occasion arises for promoting the settlement of industrial disputes. Courts of Enquiry are constituted by notificajon by the appropriate Government as occasion arises for enquiring into any matter appearing to be connected with or relevant to an industrial dispute. Industrial Tribunals are constituted by the appropriate Government for the adjudication of industrial disputes in accordance . with the provisions of the Act. Chapter III provides for reference of disputes to Boards, Courts or Tribunals and the relevant portion of s. 10 provides as under :

"10. (1) Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing- ( a) refer the dispute to a Board for promoting a settlement thereof ; or

(b) refer any matter appearing to be connected with or relevant to the dispute to a Court for enqmry; or ( c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, to a Tribunal for adjudication : Provided that where the dispute relates to a public utility service and a notice under section 22 has been given, the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub-section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced."

Chapter IV prescribes the procedure, powers and duties of the several authorities.

The Conciliation Officers are enjoined for the purpose of bringing about a settlement of a dispute, without delay to investigate the dispute and all .matters affecting the merits and the right settlement thereof and are also empowered to do al.I such things as they think fit for the purpose of inducing the parties to come to an amicable settlement

8-100 S. C. India/59.

Niemla T <xlil1

Finish fog Mill' ltd. v.

T lu 2nd Punjab Industrial Tribunal

Bhagwali ].

Nitmla Textile

Finishing ,\tills Ltd.

The 2nd Punjab Industrial Tribunal

Bhagwati J.

of the dispute. If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of conciliation • proceedings, they are to send a report thereof to the appropriate Government together with a memorandum of the settlement signed by the parties to the dispute. If no such settlement is arrived at, the Conciliation Officers have, as soon as practicable and after the close of the investigation, to send to the appropriate Government a full report setting forth the proceedings and steps taken by them for ascertain- . ing the facts and circumstances relating to the dispute and for bringing about a settlement thereof together with a full statement of such facts and circumstances, their findings thereon, the reasons on account of which .. in their opinion, a settlement could not be arrived at and their recommendations for the determination of the dispute. If, on a consideration of such report the appropriate Government is satisfied that there is a case for reference to a Board or Tribunal, it may make such reference. The Boards of Conciliation to whom a dispute may be referred under the Act are enjoined to endeavour to bring about a settlement of the same and for this purpose they are, in such manner as they think fit and without delay, to investigate the dispute and all matters affecting the merits and the right settlement thereof and are also empowered to do all such things as they think fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. If a settlement of the dispute or of any of the matters is arrived at in the course of the conciliation proceedings they are to send a report thereof to the appropriate Government together with a memorandum of the settlement signed by the parties to the dispute. If no such 'settlement is arrived at they are, as soon as practicable after the close of the investigation, to send to the appropriate Government a full report setting forth the proceedings and steps taken by them for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof together with a full statement of such facts and circumstances, their findings thereon, the reasons on account of which, in their opinion, a

settlement could not be arrived at and their recommendations for the determination of the dispute. The Courts of Enquiry are enjoined to enquire into the matters referred to them and report thereon to the appropriate Government. The Industrial Tribunals to whom an industrial dispute may be referred for adjudication are to hold their proceedings expediti- <msly and, as soon as practicable on the conclusion thereof, submit their award to the appropriate Government. Section 19, sub-ss. (3), ( 4) and ( 6) prescribe the period of operation of awards :

"19. (3) An award shall, subject to the prov1S1ons of this section, remain in operation for a period of one year:

Provided that the appropriate Government may reduce the said period and fix such period as it thinks fit : Provided further that the appropriate Government may, before the expiry of the said period, extend the period of operation by any period not exceeding one year at a time as it thinks fit so, however, that the total period of operation of any award does not exceed three years from the date on which it came into operation.

(4) Where the appropriate Government, whether of its own motion or on the application of any party bound by the award, considers that since the award was made there has been a material change in the circumstances on which it was based, the appropriate Government may refer the award or part of it to a Tribunal for decision whether the period of operation should not, by reason of such change, be shortened and the decision of the Tribunal on such reference shall subject to the provision for appeal, be final. ( 6) Notwithstanding the expiry of the period of operation under sub-section (3), the award shall continue to be binding on the parties until a period of two months has elapsed from the date on which notice is given by any party or oarties intimating its intention to terminate the award."

Chapter V contains provisions in regard to me prohibition of strikes and lock-outs and declares what are illegal strikes and lock-outs for the purpose of the Act,

Niemla Texlil•

FiniJhing /\:1illJ Ud.

The 2nd Punjab Industrial Tribunal

Bhagwati ].

~Viemla Textile

Fini; hing Mills Ltd.

The 2nd Punjab ln Justrial Tribunal

Bhagwati ].

Chapter V-A was introduced by Act XLIII of 1953, and contains provisions in regard to the lay-off and retrenchment of workmen. The other provisions of the Act are not relevant for the purpose of this enquiry and need not be referred to.

It follows from this survey of the relevant provisions of the Act that the different authorities which an constituted under the Act are set up with different ends in view and are invested with powers and duties necessary for the achievement of the purposes for which they are set up.

The appropriate Government is invested with a discretion to choose one or the other of the authorities for the purpose of investigation and settlement of industrial disputes and whether it sets up one authority or the other for the achievement of the desired ends depends upon its appraisement of the situation as it obtains in a particular indnstry or establishment. The Works Committees are set up with the object of avoiding such a clash of interest or material differences of opinion as would otherwise lead to industrial disputes. If the measures adopted by the Works Committees do not achieve the end in view and industrial disputes arise or are apprehended to arise betwem the employers and the workmen, Conciliation Officers may be appointed by the appropriate Government charged with the duty of mediating in and promoting settlement of industrial disputes. If the Conciliation Officers succeed in bringing about a settlement between the employers and the workmen, such settlements are to be signed by the parties to the disputes ; but if in spite of the endeavours of the Conciliation Officers properly directed in that behalf no settlement is arrived at between the parties, the Conciliation Officers are to send a full report in the manner indicated above so that the appropriate Government may have before it complete materials in order to enable it to come to a conclusion whether there is a case for reference to a Board or Tribunal as the case may be. If the appropriate Government is satisfied that there is a case for reference to a Board of Conciliation, it may constitute such Board for promoting the settlement of the industrial diS> pute consisting of a Chairman and 2 or 4 other. members

as it thinks fit, charged with the duty of doing all

such things as it thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. If the Board succeeds in arriving at a settlement, a report thereof together with a memorandum of the settlement will be sent by it to the appropriate Government but if no such settlement is arrived at the Board will send to the appropriate Government a full report in the manner indicated above including its recommendations for the determination of the dispute. It may be noted that a reference to the Board of Conciliation is but a preliminary step for the settlement of the industrial dispute and the -report made by it in the event of a failure to bring about such settlement will furnish materials to the appropriate Government to make up its mind whether it will refer the dispute for adjudication to an Industrial Tribunal. Before, however, any such reference is made by the appropriate Government it may set up a Court of Enquiry for the purpose of enquiring into any

matter appearing to be connected with or relevant to an industrial dispute. The Court of Enquiry will enquire into those matters and report thereon to the appropriate Government within six months from the .commencement of the enquiry. That report will furnish materials to the appropriate Government for finally .determining whether the industrial dispute shall be referred by it for adjudication to the Industrial Tribunal. It may be that the report of the Court of Enquiry discloses circumstances under which the appropriate Government considers that it is not necessary to refer the industrial dispute for adjudication to the Industrial Tribunal. In that event the matter will end there and the appropriate Government may await further developments before referring the industrial dispute for adjudication to the Industrial Tribunal. If, -0n the other hand, the materials embodied in the

report of the Court of Enquiry disclose circumstances which make it necessary for the appropriate Government to refer the industrial dispute for adjudication to the Industrial Tribuna~ the appropriate Government will constitute an Industrial Tribunal for adjudication

Niemla Textilt

FiniJhing Mills Ltd. v.

The 2n11 Punjai lnduJtrial T ribunsl

Bhagwati].

Niemla Textile

Finishing Mill< Ltd. v.

The 2nd Purefab Industrial Tribunal

Bhagwati J.

of the industrial dispute in accordance with the provisions of the Act. The Industrial Tribunal would then adjudicate upon such dispute and submit its award to the appropriate Government.

These are the steps which are contemplated in the manner indicated in s. 10 of the Act for reference of disputes to Boards, Courts or Tribunals. It is not necessary that all these steps should be taken seriatim one after tqe other.

Whether one or the otht; r of the steps should be taken by the appropriate Government must depend upon the exigencies of the situation, the i1Pminence of industrial strife resulting in cessation or interruption of industrial production and breach of industrial peace endangering public tranquillity and law and order. If the matter brooks delay the appropriate Government may start conciliation proceedings culminating in a reference to a Board of Conciliation and also Court of Enquiry, if need be, before a fullfledged reference is made to an Industrial Tribunal. If, on the other hand, the matter brooks no delay the appropriate. - Government may possibly refer the dispute to a Board of Conciliation before referring it for adjudication to an Industrial Tribunal or may straightaway refer it for adjudication by the Industrial Tribunal.

What step would be taken by the appropriate Government in the matter of the industrial dispute must, therefore, be determined by the surrounding circumstances, and the discretion vested in the appropriate Government for setting up one or the other of the authorities for the purpose of investigation and settlement of industrial disputes must be exercised by it having regard to the exigencies of the situation and the objects to be achieved. No hard and fast rule can be laid down as to the setting up of one or the other of the authorities for the purpose of bringing about the desired end which is the settlement of industrial disputes and promotion of industrial peace and it is hardly legitimate to say that such discretion as is vested in the appropriate Government will be exercised "with an evil eye and an unequal hand."

It is contended in the first instance that the provisions of the Act are violative of the fundamental

rights enshrined in Art. 14 and Art. 19( 1) (f) and (g) of the Constitution ; that it is open to the appropriate Government to differentiate between the parties similarly placed and circumstanced in every respect and in the absence of any rules made in this behalf th<: appropriate Government has unregulated and arbitrary powers to discriminate between the parties ;

th; it there is no rational basis of classification providing, different treatment for different parties and it is optn to the appropriate Government, in one case to refer the industrial dispute to a Court of Enquiry, ; and in another case to refer it to an Industrial Tri- /

bunai ; and that the procedures before the Courts of Enquiry and bfore the Industrial Tribunals are different, the one before the Courts of Enquiry being less onerous and less prejudicial to the parties than that before the Industrial Tribunals. It is submitted that the reports of the Courts of Enquiry are quite innocuous whereas the awards of the Industrial Tribunals are binding on the parties and are backed up by sanctions behind them, and in regard to the periods of operation also, it is open to the appropriate Governmnlt, in one case to reduce the same to an extent which will make them negligible in point of time whereas -in another case/it is open to it to extend the periods even upto three years from the dates on which the awards came into operation and the appropriate Government may, in the exercise of its unfettered and uncontrolled discretion, adopt different measures in the case of different parties so as to discriminate between them and work to the prejudice of those less fortunately situated. It is also contended that these discriminatory provisions being inextricably interwoven with the rest of the provisions. of the Act or being such that the Central Legislature would not have enacted the rest of the provisions of the Act without including the same therein, the whole of the Act is ultra vires the Constitution./ We are unable to accept these contentions. Having regard to the provisions of the Act heteinbefore set out it is clear that s. 10 is not discriminatory in its ambit and the appropriate Government is at liberty

Kiemla Texti/1

Finishin.~ Mills Ltd.

The 2nd Punjab Industrial Tribunal

Bhagwati J.

Nunda T 1xlilt

Finishitig Mills Ltd.

'" Tht 2nd Punjab Industrial Tribunal

Bhagwnti].

as and when the occasion arises to refer the industrial disputes arising or threatening to arise between the employers and the workmen to one or the other of the authorities according to the exigencies of the situation.

No two cases are alike in nature and the industrial disputes which arise or are apprehended to arise m particular establishments or undertakings require to be treated having regard to the situation prevailing in the same.; There cannot be any classification and the reference to one or the other of the authorities has necessarily got to be determined in the exercise of its best discretion by the appropriate Government. Such

discretion is not an unfettered or an uncontrolled discretion nor an unguided one because the criteria for the exercise of such discretion are to be found within the terms of the Act itself.

The various authorities are to be set up with particular ends in view and it is the achievement of the particular ends that guides the discretion of the appropriate Government in the matter of setting up one or the other of them. The purpose sought to be achieved by the Act has been well defined in the preamble to the Act.

The scope of industrial disputes/ is defined in s. 2(k) of the Act and there are also provisions contained in the other sections of the Act which relate to strikes and lock-ours, lay-off and retrenchment as also the conditions of service, - etc., remaining unchanged during the pendency of proceedings. These and analogous provisions sufficiently indicate the purpose and scope of the Act as also the various industrial disputes which may arise between the employers and their workmen which may have to be referred for settlement to the various authorities under the Act. The achievement of one or the other of the objects in view by such references to the Boards of Conciliation or Courts of Enquiry or • Industrial/ Tribunals must guide and control the exercise of the discretion in that behalf by the appropriate Government and there is no scope, therefore, for the argument that the appropriate Government would be in a position to discriminate between one patty and the other.

Apart from the references to be thus made to the Boards of Conciliation, Courts of Enquiry or Industrial Tribunals, the appropriate Government is also given the powers to prescribe the period of duration of the award made by the Industrial Tribunal. Normally the award is to be in operation for one year from the date of its commencement. The circumstances, however, may have changed between the date of the reference and the date of the award and power is thus given to the appropriate / Government to reduce the said period and fix such period as it thinks fit.,.- Power is also given to the appropriate Government, if the circumstances warrant that decision, to extend the period of operation by any period not exceeding one year at' a time as it thinks fit before the expiry of the normal period of one year, provided however that the total period of operation of any award does not exceed three years from the date on which the same came 'into operation. This power is to be exercised, if, in the opinion of the appropriate Government, the circumstances have not so changed as to warrant the parties to the industrial dispute to ask for a change in the terms of the award and in that event the award may continue to be in operation for the maximum period of three years from the date of its commencement. The case in which there has been a material change in the circumstances on which the award has been based is mentioned in s. 19( 4) of the Act and there the appropriate Government, whether of its own motion or on an application of any of the parties bound by the award is empowered to refer the award or a part thereof to a Tribunal if it is satisfied about such material change in the circumstances for a decision. whether the period of operation should not by reason of such change be shortened and the decision of the Tribunal on such reference, subject to the provision for appeal, is declared to be final. It appears therefore, that all the various possibilities are thought of by

those who framed this legislation and wide discretion has been given to the appropriate Government to either reduce the period of operation or to extend the same having regard to the circumstances of the case or

Niemla Textile

Finisljing Mills ltd. v.

The 2nd Punjab Industrial Tribunal

Bhagwali ].

.Niemla T e:xtil!

Finishing }JillJ Ltd. v.

The 2nd Purifab Industrial Tribunal

Bhagwati J.

to refer the question of the reduction of the period of operation to an Industrial. Tribunal in case there has been a material change in the circumstances on which the award was based. Here also it cannot be urged that there is an unguided and unfettered discretion in the matter of changing the period of operation of the award. The appropriate Government cannot merely by its own volition change the period without having reg:>rd to the circumstances of a particular case. There is no warrant for the suggestion that such discretion will be exercised by the appropriate Government arbitrarily or capriciously or so as to prejudice the interest of any of the parties , concerned. The basic idea underlying all the provisions of the Act is th~ settlement of industrial disputes and the promotion of industrial peace so that production may not he interrupted and the community in general may be benefited. This is the end which has gqt to be kept in view by the appropriate Government when exercising the discretion which is vested in it in the matter of making the reference to one or the other of the authorities under the Act and also in the matter of carrying out the various provisions contained in the other sections of_ the Act including the curtailment or extension of the period of operation of the award of the Industrial Tribunal. We are, of opinion that there is no substance jn the contention urged before us that the relevant provisions of the Act and in particular s. 10 thereof are unconstitutional and void as infringing the fundamental rights guaranteed under Art. 14 and Art. 19 (1) (f) and (g) of the Constitution. If these provisions are thus intra vire! there is no need to consider the further argument advanced before us that 'hese provisions are so inextricably interwoven with the other provisions of the Act or are such that the Legislature would not have enacted the other provisions of the Act without incorporating the same therein.

It is next contended that the Industrial Tribunals to whom industrial disputes are referred for adjudication by the appropriate Government are legislating in the guise of adjudication and this amounts to delegation

of the powers of legislation which it was not competent to the Central Legislature to do. The argument is that the Industrial Courts are not bound to follow the provisions of the ordinary law of the land as enacted in the Indian Contract Act, the Payment of Wages Act, the Workmen's Compensation Act, the Indian Limitation. Act and the like, but are authorised by the terms of the Act to lay down their own code of conduct in regard to industrial relations and their own policy in regard to the promotion of industrial peace. This, it is submitted is legislation and the Legislature has in effect abdicated its powers in favour of the Industrial Courts. The provisions in regard to reinstatement of dismissed or discharged employees, the provisions in regard to lay-off and retrenchment and the provisions in regard to strikes and lock-outs, amongst others, are pointed out as introducing provisions contrary to the positive law of the lapd and as laying down a code of conduct or policy, and reference is made in this behalf to a decision of the Federal Court in Western India Automobile Association v. Industrial Tribunal, Bombay, and Others (1 ) and two decisions of the Madras High Court, viz., The Electro Mechanical Industries Ltd., Madras v.

The Industrial Tribunal No. 2 for Engineering Firms and Type Foundries, Fort St. George, Madras, and Another(2 ) and Shree Meenakshi Mills Ltd. v. State of Madras( 3 ). It has to be remembered, however, that the functions of the Industrial Tribunals, while adjudicating upon the industrial disputes referred to them for adjudication, are quite different from those of arbitration tribunals in commercial matters. As has been observed by Ludwig Teller in 'Labour Disputes and Collective Bargaining',

Vol. 1, p. 536 :

"Then too, industrial arbitration may involve the extension ot an existing agreement, or the making of a new one, or in general the creation of new obligations or modifications of old ones, while commercial arbitration generally concerns itself with interpretation of

(2) [1950) II M.L.J. 479

Niem/a Textile Finishing Mills Ltd. v.

The 2nd Punjab Indus trial Tribunal

BhagwatiJ.

.Niemla TexJile

FiniJhing Mills Lid.

The 2nd Punjab Industrial Tribunal

BhagwatiJ,

existing obligations and disputes relating to existing agreements."

It was also observed by the Privy Council in Labour Relations Board of Saskatchewan v. John East Iron Works, Ltd(), while referring to a claim for reinstatement by a dismissed employee as one of the typical matters in dispute between employers and employees:

"The jurisdiction of the Board (Labour Relations Board) .......... is not invoked by the employee for the enforcement of his contractual rights : those, whatever they may be, he can assert elsewhere.

But his reinstatement, which the terms of his contract of employment might not by themselves justify, is the means by which labour practices regarded as unfair are frustrated and the policy of collective bargaining as a road to industrial peace is secured. It is in the light of this new conception of industrial relations that the question to be determined by the. Board must be viewed."

After quoting these observations of the Privy Council, Rajamannar,

C. J., pointed out in Shru Meenakshi Mills Ltd. v. State of Madras(') at p. 388:

"The essential object of all recent labour legislation has been not so much to lay down categorically the mutual rights and liabilities of employer and employees as to 'provide recourse to a given form of procedure for the settlement of disputes in the interests of the maintenance of peaceful relations between parties, without apparent conflicts such as are likely to interrupt production and entail other dangers. It is with this object that in the United States there has been legislation arranging for the adjustment of .conflicting interests by collective bargaining. In Great Britain there have been Acts like the Industrial Courts Act, 1919, which provides for Industrial Courts to enquire i11to and decide trade disputes. There is also provision for Conciliation Boards under the Conciliation Act,

1896. In fact, our Industrial Disputes Act is modelled on these two British Acts."

I•) (1949] A.C. 134.

This being the object of the enactment of the Act by the Central Legislature, the powers vested in the Industrial Tribunals in the matter of the settlement of industrial disputes referred to them for adjudication, wide though they may be but guided as they are by considerations of policy as indicated above, can . hardly be characterised as legislative powers. No doubt they lay down certain general principles to be observed in regard to the determination of bonus, reinstatement of dismissed or discharged employees and other allied topics but they are enunciated mainly with the object of promoting industrial peace while settling particular industrial disputes referred to them.

These principles or rules of conduct, though they are applied as precedents by the Industrial Tribunals while adjudicating upon other similar industrial disputes referred to them, are not rules of law strictly so-called and do not amount to legislation by the Industrial Tribunals.

Even i: the analogy of the Courts of Law be applied to the Industrial Tribunals, the Industrial Tribunals at best lay down or declare what the principles or the rules of conduct governing the relations between employers and the employees should be. A declaration of the principles or rules of conduct governing the relationi between the parties appearing before the Industrial Tribunals is quite different from legislation which would be binding on all parties and indeed there is no provision in the Act which confers on the Indus.- trial Tribunals either the power to make rules which would have statutory effect or the power to legislate in regard to certain matters which crop up between employers and employees. In the absence of any such provision, the mere fact that the Industrial Tribunals, while pronouncing awards in the several industrial dispute1; referred for their adjudication by the appropriate Government, lay down certain principles or rules of conduct for the guidance of employers and employees,

does not amount to exercise of any legislative power and no question of their being invested with any legislative powers can arise.

So far as delegated legislation is concerned, abstract definitions of the difference between the judicial and

Niemla Ttxlilr

Finishin.~ Mills /.Id.

The 2nd P1111iab Industrial Tribunal

Bhagwati ].

.Nitmla Textile

Finishing Mills Ltd. v.

The 2nd Punjab l1zdustrial Tribunal

BhagwatiJ.

the legislative functions have been offered (Sec the distinction drawn by Mr. Justice Field in the Sinking- .

Fund cases(') ), but they are of little use when applied to a situation of complicated facts. The function of a Court is to decide cases and leading jurists recognize that in the decision of many cases a Court must fill interstices in legislation. A legislator cannot anticipate every possible legal problem ; neither can he do justice in cases after they had arisen. This inherent limitation in the legislative process makes it essential that there must be some elasticity in the judicial process. Even the ordinary courts of law apply the principles of justice, equity and good conscience in many cases ; e.g., cases in tort and other cases where the law is not codified or does not in terms cover the problem under consideration.

The Industrial Courts are to adjudicate on the disputes between employers and their workmen etc., and in the course of such adjudication they must determine the "rights" and "wrongs" of the claims made, and in so doing they are undoubtedly free to apply the principles of justice, equity and good conscience, keeping in view the further principle that their jurisdiction is invoked not for the enforcement of mere contractual rights . but for preventing labour practices regarded as unfair and for restoring industrial peace on the basis of collective barganing. The process does not cease to be judicial by reason of that elasticity or by reason of the application of the principles of justice, equity and good conscience.

• It is not necessary to discuss the various authorities to which we have been referred on the nature and scope of the legislative process. Suffice it to say that there is neither legislation nor delegated legislation in the awards which are pronounced by the Industrial Tribunals while adjudicating upon the industrial disputes referred to them for adjudication and this contention is devoid of any force.

It is lastly contended that the Act was not within the legislative competence of the Central Legislature inasmuch as the definition of the term "industry" in

(t) (1879) 99 U.S. 700, 761; 25 L. Ed. 496, 516.

s. 2(j) of the Act comprises industrial as well as nonindustrial concerns and the Act which was expressly enacted with the object of investigation and settlement of industrial disputes is not covered by Entry 29 of List III of the Seventh Schedule to the Government of India Act, 1935.

That Entry relates to "Trade unions; industrial and labour disputes" and it is urged that industrial disputes being the subject of legislation, there was no warrant for defining the term "industry" so as to include therein labour disputes and those too in non-industrial concerns.

The definition of industry contained in s. 2(j) of the Act being comprehensive enough to include labour disputes in non-industrial concerns, it is not possible to separate the ultra vires part of that definition from the intra vires part of it with the result that th.:: whole of the definition must be held to be ultra vlres and in so far as it permeated the whole of the Act, the Act as a whole should be declared void. This argument is sought to be supported by drawing our attention to certain decisions of the Industrial Tribunals which have included hospitals, educational institutions and even the business of Chartered Accountants within the definition of "industry" contained in the Act and it is urged that if such non-industrial concerns are also included in the definition of the term "industry'', the Act is certainly ultra vires Entry 29.

We need not pause to consider whether the decisiom of the Industrial Tribunals above referred to are correct.

Tha~ will have to be done when the question is raised directly before us for adjudication. The fact that the Industrial Tribunals have put an extended construction on the term "industry" is no reason for holding that the definition itself is bad or ultra vires.

What we have got to see is whether the definition of the term "industry" is within the legislative competence of the Central Legislature and on a prim a f acie reading of the same we are not prepared to say that the same is unwarranted or not covered by Entry 2~.

A wrong application of the definition to cases which are not strictly covered by it cannot vitiate th~ definition if otherwise it is not open to challenge. lt

1~57

Niemla Ttxlile

Finishing Mills Ltd.

The 2nd Punjab Industrial Tribunal

Bhagwati , J.

., Viemla Teh.lt:

Finishing , itills Ltd. v.

The 'l.nd Punjab Industrial Tribunal

Bha!.Jwati].

should be n(l(ed that, according to the preamble, the Act was enacted not only for settlement of industrial disputes but for other. purposes also. It is open to the respondents also to justify the definition of the term "industry" as contained in s. 2(j) of the Act by having resort to Entry 27 of the same List which refers to "Welfare of labour ; conditions of labour ; provident funds ; employers' liability and workmen's compensation ; health insurance, including invalidity pensions ; old age pensions". The definition of the term "industry" including as it does any calling, service, employment, handicraft, or industrial occupation or avocation of workmen, would, therfore, be justified under this Entry even if the same is not covered by Entry 29 above referred to. The Entries in the Legislative Lists should not be given a narrow construction, they include within their scope and ambit all ancillary matters which legitimately come within the topics mentioned therein. In the matters before us, moreover, the concerns or undertakings 3re all industrial concerns and fall squarely within the definition of the term "industry" strictly so-called and it is not open to the pursuers, situated as they are, to challenge the same. This contention also has no substance and must be rejected.

It, therfore, follows that the Act is intra vires the Constitution and Civil Appeals Nos. 333, 334 and 335 of 1955 as also Petitions Nos. 203, 182 and 65 of 1956 must be dismissed. There will, however, be one set of costs payable by the appellants in Civil Appeals Nos. 333 to 335 of 1955 to the respondents therein.

So far as Petitions Nos. 203 of 1956, 182 of 1956 and 65 of 1956 are concerned, each party will bear and pay its respective costs thereoL

Appeals and petitions dismissed.

GIPN-87-100 S. C. lndia/59-24-5-60-1,000.

NIEMLA TEXTILE FINISHING MILLS LTD

THE 2No PUNJAB INDUSTRIAL TRIBUNAL

petitions) rs. R. DAS C.J.

BHAGWATI

B. P. SINHA

Industrial Disputes Act, 1947

Constitution of India

Arts. 14, 19

Disputes Act, 1947

Art. 14

Art. 19

Industrial Disputes Act, 1947

Arts. 14 and 19

Govinda Almon

Finishing Mills Ltd.

Article 32

Constitution of India

Veda Vyasa

Bhagirath Das

M. L. Kapur

S. K. Kapur

N. H. Hingorani

B. P. Maheshwari

S. M. Sikri

Jindra Lal

T. M. Sen

Sadhan •Chandra Gupta

Bawa Shiv Charan Singh

/anardhan Sharma

Porus A. Mehta

Veda Vyasa

S. K. Kapur

N. H. Hingorani

BttAGWATI

High Court of Punjab

Art. 32

State of Punjab

2nd Punjab Industrial Tribunal, Amritsar

March 31, 1955

April 23, 1955

April 14, 1955

Art. 226

s. 2

s. 32

First Schedule

Central Government

Kapur

April 12, 1955

Falshaw

April 18, 1955

April 15, 1955

Saraswati

Sugar Syndicate Ltd.

Saraswati Sugar Syndicate Ltd.

April 19, 1955

s. 10

April 20, 1955

April 25, 1955

Art. 136

s. 10

Art. 14

May 2, 1955

1, 1955

s. 10

section 10

Industrial Disputes Act

Constitution of India

Art. 14

Niemla Textile

Finishin.I!

Mills Ltd.

2nrl Punjab Industrial Tribunal

Bhawati J.

October 3, 1956

Art. 32

Art. 32

Atlas Cycle Industries Ltd.

September 15, 1956

April 27, 1956

State of Punjab

March 21, 1956

Saraswati Engineering Works

July 15, 1955

Attorney General of India

Union of India

Niemla Textile

Finishing Mills Ltd.

Bhagwati

Art. 32

Section 2(j)

Section 2(k)

s. 10

section 22

Niemla T

Finish fog Mill' ltd.

2nd Punjab Industrial Tribunal

Bhagwati

Section 19

Chapter V-A was introduced by Act

Purefab Industrial Tribunal

Bhagwati

s. 10

Art. 14

Art. 19( 1)

s. 10

s. 2(k)

s. 19( 4)

2nd Punjab Industrial Tribunal

Bhagwali

s. 10

Art. 14

Art. 19

Indian Contract Act

Payment of Wages Act

Madras High Court

Ludwig Teller

2nd Punjab Indus trial Tribunal

BhagwatiJ.

2nd Punjab Industrial Tribunal

BhagwatiJ

Rajamannar

United States

Niemla Ttxlilr

Finishin.~ Mills

2nd P1111iab Industrial Tribunal

Bhagwati

.Nitmla Textile

Finishing Mills Ltd.

2nd Punjab l1zdustrial Tribunal

BhagwatiJ.

Field

S. 700, 761

s. 2(j)

s. 2(j)

Niemla Ttxlile

Finishing Mills Ltd.

l.nd Punjab Industrial Tribunal

Bha!.Jwati]

s. 2(j)


S.C.R.

SUPREME COURT REPORTS 423

It was lastly contended for the appellant tliat even .if the High Court could hold a preliminary enquiry into the conduct of a judicial officer, it had no jurisdiction to decide the matter finally, that the findings given by Balakrishna Ayyar J. should not be held to conclude the question against the appellant, and that the Government was bound to hold a fresh enquiry and decide for itself whether the charges were wellfounded. No such question was raised in the petition or in the High Court, and we must, therefore, decline to entertain it.

In the result, the appeal is dismissed with costs.

Appeal dismissed.

OM PRAKASH GUPTA

STATE of U. P. (with connected appeals)

(S. R.

DAS c. J.,

BHAGWATI,

VENKATARAMA

AYYAR, S. K. DAs and GovINDA MENON JJ.)

Implied repeal-Whether s. 409 of the Indian Penal Code is impliedly repealed by s. 5(J)(c) of the Prevention of Corruption Act, 1947 (II of 1947)-Whether the application of s. 409 of the Indian Penal Code to a public servant infringes Art. 14 of the Constitution- Sanction-Whethei sanction under s. 6 of the Prevention of Corruption Act necessary for prnsecution under s. 409 of the Indian Penal Code.

The offences under s. 409 of the Indian Penal Code ands. 5(1)(c) of the Prevention of Corruption Act, 1947 are distinct and separate, and there is no question of s. 5(1)(c) of the Prevention of Corruption Act, 1947 repealing s. 409 of the Indian Penal Code.

Amarendra Nath Roy v. The State, A.LR. [1955] Cal. 236, :; ipproved.

The legislature would not have intended in the normal course of things, that a temporary statute like the Prevention of Corruption Act, 1947, should supersede an enactment of antiquity like the Indian Penal Code.

In the view that the two offences under s. 409 of the Indian Penal Code and s. S(l)(c) of the Prevention of Corruption Act are distinct and separate there is no infringement of Art. 14 of the

Mohammad Ghow1

Stat• of A11dhra

V tnkatarama

Ayyar J.

January, 11.

Om Prakash Gupta v.

State of U. P.

SUPREME COURT REPORTS (1957] • Constitution in the application of s. 409 of the Indian Penal Code to a public servant.

Sanction under s. 6 of the Prevention of Corruption o\ct, 1947 is not necessary for a prosecution under s. 409 of the Indian Penal Code.

State v. Pandurang Baburao A.R.I.

(1955) Born. 451, Bhup Narain Saxena v. State, A. I. R. (1952) All. 35 and State v. Guiab Singh, A.LR. (1954) Raj. 211, approved.

State v. Gurcharan Singh, (1952) Punj. 89, overruled.

CRIMINAL

APPELLATE JuRISDICTION: Criminal Appeals No. 42 of 1954 and Nos. 3 and 97 of 1955.

Appeal by special leave from the judgment and order dated July 7, 1953, of the Allahabad High Court in Criminal Revision No. 1113 of 1953 arising out of the judgmem and order dated June 24, 1953, of the Court of Sessions Judge, Kumaun, in Criminal Appeal No. 42 of 1953 (N). Appeal under Article 134(1) (c) of the Constitution from the judgment and order dated December 23, 1954, of the Allahabad High Court (Lucknow Bench) in Criminal Revision No. 141 of 1951 and Criminal Miscellaneous Applications Nos. 454 of 1952 and 159 of 1953 arising out of the judgment and order dated June 4, 1951, of the Civil and Sessions Judge, Sitapur in Criminal Revision No. 5 of 1951.

Appeal by special leave from the judgment and order dated January 16, 1952, of the Judicial Commissioner's Court, Vindhya Pradesh, Rewa, in Criminal Revision No. 216 of 1951 arising out of the judgment and order dated September 29, 1951, of the Court of Sessions Judge at Rewa in Criminal Appeal No. 14 of 1951.

S. C. Isaacs and P. C. Agtt1'wala, for the appellant in Criminal Appeal No. 42 of 1954.

S. C. Isaacs and 0. N. Srivastava, for the appellant in Criminal Appeal No. 3 of 1953.

S. C. Isaacs, f. B. Dadachanii, S. N. Andley and Rameshwar Nath, for the appellant in Criminal Appeal No. 97 of 1955.

G. C. Mathur and C. P. Lal, for the respondent in Criminal Appeals Nos. 42 of 1954 and 3 of 1955.

Porus A. Mehta an<l R. H. Dhebar, for the respondent in Criminal Appeal No. 97 of 1955.

1957. January 11.

The Judgment of the Court was delivered by GovrNDA MENON J.- Though these three appeals have been filed against the decisions of different courts and arc not connected either as regards community of purpose or the identity of the accused they have been heanl together, because the points of law raised in them are identical and the arguments of counsel have proceeded on common lines. Hence a common judgment dealing with the legal aspect would be apt in the circumstances.

Criminal Appeal No. 42 of 1954 has been preferred by Om Prakash Gupta against the dismissal of his Revision Petition by the High Court of Aliahabad, thereby affirming the appellate decision of the Sessions Judge of Kumaun who in his turn maintained the sentence of rigorous imprisonment for one year and a fine of Rs. 500 passed on the appellant by the Special

1st Class Magistrate of Nainital on April 30, 1953, under s. 409 of the Indian Penal Code.

This appellant was a clerk in the Electric Department of Haldwani Municipal Board and the charge against him was that he received three sums of money : Rs. 24215/9 (Ex. P. 14) on July 28, 1951, Rs. 70/- (Ex. P. 17) on October 19, 1951, Rs. 135/- (Ex. P. 13) on October 23, 1951. aggregating to Rs. 447 /5/9 and misappropriated the whole amount, though his defence was that having received the money, he gave it to his official superior, Electrical Engineer Pandy ; and did not have anything more to do with the money.

The Police charge sheet was under ss. 409 and 467 of the Indian Penal Code, but the conviction was only under the former section. The conviction and sentence imposed upon him by the trial court having been confirmed in appeal by the learned Sessions Judge and further having been affirmed by dismissal of his revision by the High Court of Allahabad, have now become the subject of

Om Prakash Gupta v.

State of U. P,.

Om Prakash Gupta

Stat1 of U. P.

Govinda Menon J.

appeal, as special leave has been granted on the question of law raised.

Om Prakash, the appellant in Criminal Appeal No. 3 of 1955, had obtained leave to appeal from the High Court of Allahabad against the opinion of a Full Bench of that court in Criminal Revision No. 141 of 1951, by which it affirmed the order of the Civil and Sessions Judge of Sitapur in Criminal Revision No. 5 of 1951, holding that Om Prakash was improperly discharged by the learned Magistrate of an offence under s. 409, Indian Penal Code, and directing the Magistrate to make a further inquiry into the matter of that offence. It may be mentioned that the learned 1st Class Magistrate held that sanction was essential for the prosecution of Om Prakash and as the same had not been granted, the prosecution was not maintainable. This view did not find acceptance at the hands of the learned Sessions Judge, whose decision was affirmed by the High Court of Allahabad. The charge against him was that as a canal accountant in a Divisional Engineer's office he committed criminal breach of trust of a certain sum of money.

Lal Ramagovind Singh, the appellant in Criminal Appeal No. 97 of 1955, was the Director of Agriculture in the Indian State of Rewa and for the offence of having committed criminal breach of trust of an amount of Rs. 586/10/- on December 4, 1948, he was prosecuted under s. 409 of the Indian Penal Code, on August 13, 1949, and after inquiry, charges were framed against him on February 24, 1950, resulting in a judgment of conviction by the trial court on September 29, 1950, and a sentence of one year's rigorous imprisonment and a fine of Rs. 500.

His appeal to the Sessions Judge was dismissed on September 29, 1951, and the revision to the Judicial Commissioner shared the same fate on January 16, 1952.

Special leave haviFlg been granted to him, Criminal Appeal No. 97 of 1955 was the outcome.

The first question for consideration is whether s. 409 of the Indian Penal Code, in so far as it applies to a public servant (in this case the three appellants were admittedly public servants), has been impliedly

repealed by the enactment of ss. 5(1) (c) and 5(2) of the Prevention of Corruption Act II of 1947, and if that is so, whether a prosecution of the appellants for an offence of criminal breach of trust without the requisite sanction and without conforming to the provisions of the Prevention of Corruption Act, can be legally sustained.

Two other questions have also been urged before us and they are: Assuming that there was no such implied repeal, would the application of s. 409 of the Indian Penal Code to a public servant infringe Art. 14 of the Constitution, now that the provisions of the Prevention of Corruption Act and the procedure laid down thereunder are available to deal with a breach of trust by a public servant ; and next, if the appellants do not succeed on the first two points, whether the provision for sanction required by the Prevention of Corruption Act would also similarly apply to a prosecution under s. 409 of the Indian Penal Code.

What is first to be determined is whether s. 409 of the Indian Penal Code, deals with the same offence as that contemplated under ss. 5(1) (c) and 5(2) of the Prevention of Corruption Act, and if so, has there been an overlapping of legislation over the same field ; and has the latter one impliedly repealed the earlier.

For that purpose the provisions of the two statutes have to be succinctly analysed to understand the full scope and the impon of the two.

The fasciculus of sections contained in Chapter XVII of the Indian Penal Code beginning with s. 405 of the Indian Penal Code and ending with section 409 of the Indian Penal Code deals with criminal breach of trust.

Section 405 of the Indian Penal Code defines criminal breach of trust and s. 409 of the Indian Penal Code is an aggravated form of criminal breach of trust when the same is committed by a public servant, banker, merchant, etc.

Analysing s. 405 of the Indian Penal Code, into its component ingredients, it is seen that the following essential ingredients are absolutely necessary to attract the operation of the section :

(i) The accused must be entrusted with property or do'1tinion over property ;

Om Prakash Gulf• ...

Slate of U. P.

Gooinrfa Menon J.

Om Prakash Gupta v. , Statt of U. P.

Govinda Menon J.

. (ii) Te person so entrusted must (a) dishonestly misappropnate or convert to his own use that property, or . (b) dishonestly use or dispose of that property or wilfully suffer any other person to do so in violation (I) of any direction of law prescribing the mode in which such trust is to be discharged, or (II) of any legal contract made touching the discharge of such trust.

In the above cases he is said to commit a criminal breach of trust.

Section 409 of the Indian Penal Code lays down the punishment when such criminal breach of trust is committed by a public-servant, banker, merchant, etc.

Now we have to ascertain the provisions of the Prevention of Corruption Act dealing with criminal misconduct.

The preamble of the Act makes it clear that the intention was to make more effective prov1s1ons for the prevention of bribery and corruption.

From this itself, it is clear that the legislature was alive to the fact that something more stringent and drastic than s. 409 of the Indian Penal Code was necessary in the case of bribery and corruption by public servants and it was to effectuate that intention that the Act was put on the statute book. The duration of his piece of legislation in the first instance was only for a period of live years which later on was extended by Act II of 1952 for ten years which would mean that automatically the Act would expire by about the middle of 1957.

Section 3 lays down that offences under ss. 161, 165 and 165-A of the Indian Penal Code which under the provisions of the Criminal Procedure Code were not cognizable are made cognizable.

Section 5 enacts that where a public servant accepts, agrees to or obtains gratification other than legal remuneration, then it shall be presumed unless the contrary is proved .. that he accepted, obtained or agreed to accept or attempted to obtain that gratification or valuable thing as a motive or reward such as is mentioned in section 161, etc., etc. Sub-section 2 of s. 4 also deals

with this presumption.

We are concerned in these appeals with s. 5. Sub-sections 1 (a) and 1 (b) of s. 5, which is designated as criminal misconduct in discharge of official duty by a public servant, deal with persons who habitually accept or obtain or agree to obtain gratification other than legal remuneration as a motive or reward as mentioned in s. 161 of the Indian Penal Code. It is not necessary to deal with these two subclauses in detail because there is no question of any acceptance of illegal gratification in the present cases but one thing that has to be remembered is that these sub-sections deal with habitual acceptance or obtaining, etc., whereas ss. 161 and 165 deal with even a single acceptance or obtaining. The result is that under ss. 161 and 165 of the Indian Penal Code a prosecution can be laid even in the case of a single act by which a public servant has accepted an illegal gratification, but in order to attract els. 5 ( 1) (a) and 5(1)(b), there must be habitual commission of the crime.

Any stray or a single instance would not suffice to bring within the ambit of the section the offence as contemplated in ss.' 5(1) (a) and 5 (1) (b).

The result is that the offences under ss. 5 ( 1) (a) and 5 ( 1) (b) are an aggravated form of the offence under ss. 161 and 165 of the Indian Penal Code.

As we are concerned with s. 5 ( 1) ( c), the sami;_ may be quoted in extenso :

"If he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do."

Section 5 ( 1) ( d) lays down that if a public servant by corrupt or illegal means or by otherwise abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage, he commits the offence.

Section 5(2) makes the offence of criminal misconduct punishable with imprisonment which may extend to seven years or with fine or with both.

Sub-section

(3) is an important piece of legislation to the effect that where a person is charged under s. 5 ( 1) and it is found that the accused person cannot satisfactorily

Om Prakash Gupta v.

State of U.P.

Go•inda Menon ].

Om Pr""ash Gupta ..

S1a1, of U. P.

Govind11 Merwn J.

account for the pecuniary resources or property disproportionate to his knowr, sources of income, then the fact that he has such extensive pecuniary resources or property is sufficient to presume, until the contrary is proved, that the accused person was guilty of criminal misconduct in the discharge of his official duty and a conviction for that offence shall not be invalid by reason only that it is based solely on such presumption.

It is clear, therefore, that where a person is charge with criminal misconduct and it is seen that he is in possession of property or income which could not have been amassed or earned by the official remuneration which he had obtained, then the court is entitled to come to the conclusion that the amassing of such wealth was due to bribery or corruption and the person is guilty of an offence of criminal misconduct.

Such a presumption cannot be drawn in the case of a prosecution under ss. 161, 165 and 409 of the Indian Penal Code.

Section 6 provides that for the prosecution of an offence of criminal misconduct under s. 5(2) or for an offence under s. 161 or 165 of the Indian Penal Code, previous sanction is necessary of either the Central Government or the State Government or the autho rity competent to remove the Government servant ..

The .. fast section of the statute is a departure or deviation from the procedure till then obtaining in a criminal case and thereby an accused person is held competent to be a witness on his behalf. Whereas under s. 342, Indian Penal Code, as it stood before the recent amendment, no accused person was entitled to be administered on oath and thereby competent to testify in a court of law in a case in which he is accused ; under s. 7 any person charged with an offence punishable under s. 161 or s. 165 or 165-A of the Indian Penal Code, or under sub-s. (2) of s. 5 of the Prevention of Corruption Act, is a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial ; and there are also certain safeguards provided in the matter of giving such testimony.

We have now referred to the relevant provision of Act II of 1947 in which the most important one for our present consideration is s. 5 ( 1) ( c). It will be useful to institute a comparison between s. 405 of the Indian Penal Code and s. 5(1)(c) of Act II of 1947.

The question of entrustment is common under s. 405 of the Indian Penal Code and under s. 5 ( 1) ( c) of the Prevention of Corruption Act.

Whereas under section 405 of the Indian Penal, Code dishonest misappropriation or conversion to his own use of that property would be the necessary criterion, with regard to s. 5 ( 1 )( c) the misappropriation or conversion may be either dishonestly or fraudulently or otherwise.

Then again there is a further fact under s. 5(1) (d) that if the public servant by corrupt or illegal means or otherwise abuses his position as a public servant and obtains for himself or for any other person any valuable thing or pecuniary advantage, then he will be guilty of the offence. We may, therefore, give below the ingredients of the two sections :-

Section 405 of the Indian Penal Code.

1. Entrusting any person with property or with any dominion over property.

2. The person entrusted

(a) dishonestly misappropriating or converting to his own use that property.

(b) dishonestly using or disposing of that property or wilfully suffering any other per.son to do so in violation- ( i) of any direction of law prescribing the mode in which such trust is to be discharged, or

(ii) of any legal contract made touching the discharge of such trust.

Prevention of Corruption Act II of 1947 : Section 5(1) : ( c) dishonestly or fraudulently misappropriating or otherwise converting for his own use any property entrusted to him, or under his control as a public servant or allowing any other person to do so. ( d) If he by corrupt or illegal means or by otherwise abusin~ his position as a public servant,

Om Prakash Gu"a

, Slle of U. P.

Govinda Menon J.

Om Prakash c; upta

State of U. P.

.Govinda }Jenon J.

obtains for himself or for any other person any valuable thing or pecuniary advantage.

Now 'dishonestly' as defined in s. 24 of the Indian Penal Code connotes the doing of anything with the intention of causing wrongful gain to one person or wrongful loss to another person and s. 25 defines 'fraudulently' as doing a thing with intent to defraud but not otherwise. It is, therefore, clear that s. 5( 1) ( c) is wider in ambit than section 405 of the Indian Penal Code.

The argument of the learned counsel for the appellants is that though the offences under the two provisions are indetical, there are some advantages where the trial is under s. 5(1) (c) and certain disadvantages as well. The advantages are :- ( 1) The punishment for criminal mis-conduct is less than the punishment for breach of trust by a public servant ;

(2) It is necessary to obtain previous sanction for a prosecution under s. 5 (l)(c), whereas in the case of breach of trust by a public servant, such sanction may or may not be necessary ; .

(3) The investigation of an offence under s. 5(l)(c) should be by an officer of a higher grade though that does not obtain so far as the present appeals are concerned; and ( 4) The accused person has the right of giving evidence on his behalf.

The disadvantages are that in such a trial the presumption referred to in s. 4(3) can be drawn against the accused if it is found that he has pecuniary resources or property disproportionate to his known sources of income and also the two presumptions regarding the acceptance of a valuable thing from any person by a public servant as contemplated in sub-ss. (1) and (2) of s. 4.

These differences, according to the learned counsel for the appellant, do not in any way make the offence under s. 5 ( 1) ( c) different from the offence under s. 409 of the Indian Penal Code, but that only another method of procedure is prescribed and a different mode of approach is laid down when an offence under s. 5(l)(c) is enquired into or tried.

Mr. Isaacs strenuously urges that if there are two different statutes, one enacted later than the other, and if the later statute deals with the same subject matter, the two cannot stand together and the earlier one being redundant or repugnant must be deemed to have been repealed.

The result is that whereas in this case there are penal statutes dealing with the same subject matter and the penalties and procedure prescribed by the

statute~ ' are different from each other, then the later one must be taken to repeal or supersede the earlier.

Reliance is placed on certain observations contained in Za11erbhai Amaidas v. The State of Bombay( ) containing some quotations from the judgment of Goddard J. in Smith v. Benabo(2) to the following

effect :-"That if a later statute again describes an offence created by a previous one, and imposes a different punishment, or varies the procedure, the earlier statute is repealed by the later statute : see Michell v. Brown (3), per Lord Campbell and also Attorney-General for Ontario v. Attorney-General for

the Dominion(').

On the footing that s. 5 ( 1) ( c) of Act II of 1947 deals with the same subject with regard to public servants as that portion of s. 409 of the Indian Penal Code, Mr.

Isaacs. drew our attention to The State v.

Gurcharan Singh(5).

In that case Falshaw J. in delivering the judgment of a Bench consisting of himself and Khosla J. held that so long as s. 5 of Act II of 1947 remained in force, the provisions of s. 409 of the Indian Penal Code, so far as it related to offences by public servants, stood repealed.

The learned Judge after referring to the various provisions of the Prevention of Corruption Act came to the above conclusion.

After adverting to s. 26 of the General Clauses Act and its counterpart, s. 33 of the Interpretation Act and also

pssages from Maxwoll on Interpretation of Statutes, the learned Judge was of opinion that it is not possible to infer that there was no implied repeal.

Before we advert to the Indian cases, the first thing that has to be remembered in this connection is that

(1) (1955] 1 S.C.R. 799 at pp. 807-809.

(4) (1896] A.C. 348.

(2) [1937] I K.B. 518.

(5) 1952 Punj. 89.

(3) [1858] 1 E. & E. 267,274,117 R.R. 206.

0111 Prakash Gupta

State of U. P.

Govinda Menon ].

Om Prakash Gupta v.

Stat, of U. P.

Govjnda Menon J.

the Prevention of Corruption Act being a temporary one, the legislature would not have intended in the normal course of things that a temporary statute like the one in question should supersede an enactment of antiquity, even if the matter covered the same field.

Under s. 6(a) of the General Clauses Act if by efBux of time the period of a temporary statute which had repealed an earlier statute expires, there would not be a revival of the earlier one by the expiry of the temporary statute.

A Full Bench of the Bombay High Court in T ht: State v. Pand11rang Baburao(') held that the language used by the legislature in s. 5 ( 4) of the Prevention of Corruption Act clearly negatived any suggestion that the legislature intended to repeal the provisions of s. 409 of the Indian Penal Code. It cannot also be held that s. 409 of the Indian Penal Code is impliedly repealed by the Prevention of Corruption Act because it is impossible to say that the provisions of the two are wholly incompatible or that the two statutes together would lead to wholly absurd consequences.

Therefore, it was open to the prosecution to proceed with a trial under s. 409 of the Indian Penal Code or under s. 5(2) of the Prevention of Corruption Act even before the amendment of the latter Act by Act LIX of 1952 and if the prosecution was launched under s. 409 and if the status of the accused was such that no sanction was required under the provisions of the Criminal Procedure Code, then the prosecution is good and the conviction is proper notwithstanding the fact that if the prosecution had .been lauched under s. 5(2), a sanction would have been necessary.

The learned Judges dissented from the opinion expressed by Falshaw J. in The State v. Gurclzaran Singh (supra) and also overruled certain earlier Bombay cases. This court is in agreement with the expression of opinion by the learned Chief Justice of the Bombay High Court in the above Full Bench decision.

Ramaswami J. of the Madras High Court in Rt:.

V. V. Satyanarayanamurthy( ') came rn the conclusion that s. 5(1) ( c) of the Prevention of O>rruption Act

(1) A.l.R. [1955] BoCD. ~51.

(2) A.L.R. [1953) Mad.

does not repeal s. 409 of the Indian Penal Code, and he accordingly dissented from the view taken in the case The State v. Gurcharan Singh (supra).

The Calcutta High Court in Amarendra Nath Roy

v. The State( 1 ) has taken a similar view dissenting from The State v. Gurcharan Singh (supra).

There is a large body of case law in this direction and it is unnecessary to mention all except the following :

(a) Mahammad Ali v. The State(2),

(b) Bhup Narain Saxena v. State(3),

(c) Gopal Das v. State(4).

As against all these cases the long voice of the Punjab High Court in State v.

Gurcharan Singh

(supra) is the only dissentient one and after considering the matter carefully, it seems to us that the view taken by the Punjab High Court is not sound.

We now proceed to consider whether the two sections are identical in essence, import and content and in our opinion the argument on behalf of the State carries much force when it is suggested that by enacting the Amending Act of 1952 and creating sub-s. 4 to s. 5 the legislature specifically stated that the offence under s. 5 ( 1) ( c) is different from any previous existing offences under any penal statute and there can, therefore, be no scope for speculation about repeal.

The words used in sub-s. 4 "any other law" made the position quite clear and explicit.

Other law does not mean identical law in which case the word 'other' will have no meaning. At an earlier stage of this judgment we have already tabulated the different elements constituting the two offences and a clear comparison and contract of these elements would show that an offence under s. 405 of the Indian Penal Code is separate and distinct from the one under s. 5 ( 1) ( c). There are three points of difference between s. 405 of the Indian Penal Code al}d s. 5 ( 1) ( c). The dishonest misappropriation contemplated in s. 405 of the Indian Penal Code is different; whereas that under section 5 ( 1 )( c) is either dishonest misappropriation or fraudulent misappropriation. The latter section is much wider in amplitude

(1) A.I.R. [1955] Cal. 236.

(3) A.LR. [1952] All. 35.

(2) A.I.R. [1953] Cal. 681.

(4) A.I.R. [19541 All. 80.

Om Prakash Gupta

State of U. P.

Govinda Menon ].

Om Prakash Guptd

State of U. P.

Govinda Men•n J.

thon the former.

In s. 405 of the Indian Penal Code the words used are "In violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied." There are no such expressions ins. 5(1)(c).

It is clear, therefore, that whereas under s. 405 of the Indian Penal Code there are three essential ingredients to constitute the offence, each one of them being separate and distinct, in s. 5 ( 1) ( c) there are only two.

Now considering s. 5(1)(c) there are certain matters in it which are absent in s. 405 of the Indian Penal Code.

The words 'dominion' and 'entrustment' connote two different things. The word 'dominion' is not in s. 5(1)(c). We have already stated that the word 'fraudulently' is not present in s. 405 and ins. S(l)(c) the gist of the offence can also be made out if the offender allows any person so to do, i.e., allows any person to derogate from the law as contemplated in the earlier portion of the section.

The meaning put on the word 'allows' would certainly be different from 'dishonest misappropriation' by the offender himself. It may be that the word can mean allowing by negligence or without any volition on the part of the offender.

It may also mean that there is some kind of pos1t1ve and tacit acquiescence necessary to bring home the offence. In any event, allowing other persons so to do does not find a place in s. 405 of the Indian Penal Code though this section also contemplates "wilfully suffering any other person so to do." There is an essential difference between "allowing" a person and "wilfully suffering" a person to do a certain thing.

There can, therefore, be no doubt whatever that s. 5(1)(c) of the Prevention of Corruption Act creates a new offence called "criminal misconduct" and cannot by implication displace the offence under s. 'I05 of the Indian Penal Code.

In this connection it is useful to compare ss. S(l)(a) and 5(1)(b) with ss. 161 and 162 of the Indian Penal Code.

As has already been referred to, these two sections are aggravated forms of ss. 161 and 162 of the Indian Penal Code and the intention cannot be to abrogate the earlier

offence by the creation of the new offence. These tw6 offences can co-exist and the one will not be considered as overlapping the other. A course . of conduct can be proved when a person is arraigned under ss. 5(l)(a) and 5(1)(b), but such a course is impossible to be let in evidence when an offence under ss. 161 and 162 is being enquired into or tried.

Similarly there are a number of elements which can be proved in an inquiry or trial under s. 5 ( 1) ( c) that cannot be le.t in by the prosecution when a person is charged for an offence under s. 405 of the Indian Penal Code.

In s. 405 of the Indian Penal Code the offender must wilfully suffer another person to misappropriate the property entrusted, but in s. 5(1)(c) if he allows another person to dishonestly or fraudulently misappropriate or otherwise convert for his own use any property so entrusted, then it is an offence. There is a vast difference between wilfully suffering another and allowing a person to do a particular thing and in our view the word "allows" is much wider in its import.

Wilfully pre-supposes a i:onscious action, while even by negligence one can allow another to do a thing .

It seems to us, therefore, that the two offences are distinct and separate. This is the view taken in Amarendra Nath Roy v. The State (supra) and we endorse the opinion of the learned Ju<lges, expressed therein.

Our conclusion, therefore, is that the offence created under s. 5 ( 1 )( c) of the Prevention of Corruption Act is distinct and separate from the one under s. 405 of the Indian Penal Code and, therefore, there can be no question of s. 5(1)(c) repealing s. 405 of the Indian Penal Code.

If that is so, then, article 14 of the Constitution can be no bar.

The Jast argument of Mr. Isaacs is that despite the fact that the prosecution is under s. 409 of the Indian Penal Code, still sanction . to prosecute is necessary.

Quite a large body of case law in all the High Courts has held that a public servant committing criminal breach of trust does not normally act in his capacity as a public servant, see 6-77 S. C. India/59

Om Prakash Gupta

State of U. P.

G vinda Menon J.

Om Prakash Gup1a ...

State of U, P.

Gooinia Menon :J.

January, 22.

(a) The State v. Pandurang Baburao (supra),

(b) Bhup Narain Saxena v. State (supra), and

(c) State v. Guiab Singh(').

We are in agreement with the view expressed by Hari Shankar and Randhir ingh JJ. that no sanction is necessary and the view expressed by Mul!a J. to the contrary is not correct.

Criminal Appeal No. 3 of 1955 will accordingly be dismissed.

Criminal Appeals -Nos. 42 of 1954 and 97 of 1955 will be heard on merits.

L. J. LEACH AND COMPANY LTD.

tJ.

JARDINE SKINNER AND CO.

(BHAGWATI,

VENKATARAMA

AYYAR,

B. P.

SINHA and S. K. DAs JJ.)

Amendment of plaint-Addition of alternative ground for claim -Necessary allegations present in plaint-Fresh suit on amended clat'm barred by limitation-Whether amendment should he allowed- Action in trover-W hen maintainable.

The appellants filed a suit for damages for conversion against the respondents on the allegations that the respondents were the agents of the appellants, that the appellants had placed orders for certain goods with the respondents, and that the respondents had actually imported ...t:he goods but refused to deliver them to the appellants.

The suit was dismissed on the findings that the parties stood in the relationship of seller and purchaser, and not agent and principal arid that the title in the goods could only pass to the appellants when the respondents appropriated them to the appellants' contracts.

In appeal before the Supreipe Court, the appellants applied for amendment of the plaint by raising, in the alternative, a claim for damages for breach of contract for nonw <lelivery of the goods.

All the allegations necessary for sustaining a claim for damages for breach of contract were already present in the plaint and the only allegation lacking was that the appellants were, in the alternative, entitled to claim damages for breach of contract by the non-delivery of the goods.

But a fresh suit on the amended claim was barred by limitation oh the date of the application.

Held, that this was a fit case in which the amendment should be allowed. The fact that a fresh suit on the amended claim was

(1) A.l.R. ['954] Raj. 2H.

OM PRAKASH GUPTA

STATE of U. P

DAS

BHAGWATI

GovINDA MENON JJ.

s. 409

Indian Penal Code

s. 5(J)(c)

Prevention of Corruption Act, 1947

s. 409

Indian Penal Code

Art. 14

s. 6

Prevention of Corruption Act

s. 409

Indian Penal Code

s. 409

Indian Penal Code

Prevention of Corruption Act, 1947

s. 5(1)(c)

Prevention of Corruption Act, 1947

s. 409

Indian Penal Code

Prevention of Corruption Act, 1947

Indian Penal Code

s. 409

Indian Penal Code

Prevention of Corruption Act

Art. 14

s. 409

Indian Penal Code

s. 6

s. 409

Indian Penal Code

Article 134(1)

S. C. Isaacs

P. C. Agtt1'wala

0. N. Srivastava

B. Dadachanii

S. N. Andley

Rameshwar Nath

G. C. Mathur

C. P. Lal

Porus A. Mehta

R. H. Dhebar

GovrNDA MENON

Om Prakash Gupta

High Court of Aliahabad

Sessions Judge of Kumaun

April 30, 1953

s. 409

Indian Penal Code

Haldwani Municipal Board

July 28, 1951

October 19, 1951

October 23, 1951

Pandy

ss. 409 and 467

Indian Penal Code

High Court of Allahabad

Govinda Menon

Om Prakash

Civil and Sessions Judge of Sitapur

Om Prakash

s. 409

Indian Penal Code

Lal Ramagovind Singh

December 4, 1948

s. 409

Indian Penal Code

August 13, 1949

February 24, 1950

September 29, 1950

September 29, 1951

January 16, 1952

s. 409

Indian Penal Code

ss. 5(1)

Corruption Act II of 1947

Prevention of Corruption Act

s. 409

Indian Penal Code

Art. 14

Prevention of Corruption Act

Prevention of Corruption Act

s. 409

Indian Penal Code

s. 409

Indian Penal Code

ss. 5(1)

Prevention of Corruption Act

Indian Penal Code

s. 405

Indian Penal Code

section 409

Indian Penal Code

Section 405

Indian Penal Code

s. 409

Indian Penal Code

s. 405

Indian Penal Code

Gooinrfa Menon

Section 409

Indian Penal Code

s. 409

Indian Penal Code

Section 3

ss. 161, 165 and 165

Indian Penal Code

Section 5

section 161

section 2

s. 4

s. 5

sections 1

s. 5

s. 161

Indian Penal Code

ss. 161 and 165

ss. 161 and 165

Indian Penal Code

ss. 5

ss. 161 and 165

Indian Penal Code

s. 5

Section 5

Section 5(2)

s. 5

Merwn

ss. 161, 165 and 409

Indian Penal Code

Section 6

s. 5(2)

s. 161

Indian Penal Code

Central Government

s. 342

Indian Penal Code

s. 7

s. 161

s. 165

Indian Penal Code

s. 5

Prevention of Corruption Act

s. 5

s. 405

Indian Penal Code

s. 5(1)(c)

s. 405

Indian Penal Code

s. 5

Prevention of Corruption Act

section 405

s. 5

s. 5(1)

Section 405

Indian Penal Code

Prevention of Corruption Act

Section 5(1)

State of U. P.

.Govinda }Jenon

s. 24

Indian Penal Code

s. 25

s. 5( 1)

section 405

Indian Penal Code

s. 5(1)

s. 5

s. 5(l)(c)

s. 4(3)

s. 4

s. 5

s. 409

Indian Penal Code

s. 5(l)(c)

Isaacs

Goddard

Campbell

s. 5

s. 409

Indian Penal Code

Isaacs

Falshaw

Khosla

s. 5

s. 409

Indian Penal Code

Prevention of Corruption Act

s. 26

General Clauses Act

s. 33

Maxwoll

(1955] 1 S.C.R. 799

0111 Prakash Gupta

State of U. P.

Govinda Menon

Govjnda Menon

Prevention of Corruption Act

s. 6(a)

General Clauses Act

Bombay High Court

s. 5

Prevention of Corruption Act

s. 409

Indian Penal Code

s. 409

Indian Penal Code

Prevention of Corruption Act

s. 409

Indian Penal Code

s. 5(2)

Prevention of Corruption Act

s. 409

s. 5(2)

Bombay

Ramaswami

Madras High Court

V. V. Satyanarayanamurthy

s. 5(1)

s. 409

Indian Penal Code

Calcutta High Court

Punjab High Court

s. 4

s. 5

s. 5

s. 4

s. 405

Indian Penal Code

s. 5

s. 405

Indian Penal Code

s. 5

s. 405

Indian Penal Code

section 5

Om Prakash Gupta

Govinda Men•n

s. 405

Indian Penal Code

s. 405

Indian Penal Code

s. 5

s. 5(1)(c)

s. 405

Indian Penal Code

s. 5(1)(c)

s. 405

s. 405

Indian Penal Code

s. 5(1)(c)

Prevention of Corruption Act

Indian Penal Code

ss. 161 and 162

Indian Penal Code

ss. 161 and 162

Indian Penal Code

ss. 5(l)(a) and 5(1)(b)

ss. 161 and 162

s. 5

s. 405

Indian Penal Code

s. 405

Indian Penal Code

s. 5(1)(c)

s. 5

Prevention of Corruption Act

s. 405

Indian Penal Code

s. 5(1)(c)

s. 405

Indian Penal Code

article 14

s. 409

Indian Penal Code

Hari Shankar

Randhir ingh

Mul!a

L. J. LEACH

B. P.

SINHA

Supreipe Court