s.c.R.

SUPREME COURT REPORTS 1495

explai11 when it is deemed to have taken place outside 1958 any State whatsoever that State ma)'.· be. I am there- M. P. v. Sundarafore unable to see that the Explanation has any facet ramier & co. showing what would be a sale inside Andhra. v.

The conclusion that T reach is that the Sales Tax The State oJ Act with which these cases are concerned does not Andhra Pradesh authorise the taxing of a sale under which goods are Sarkar J. delivered in Andhra but the property in them passes in Madras. In this view of the matter I do not think it necessary to discuss the various other grounds on which the respondent's right to tax these sales was also challenged. In the result I would allow these petitions.

BY COURT : In view of the opinion of the majority, the petitions are dismissed. The parties are to bear their own costs.

Petitions dismissed.

VIRSA SINGH v.

THE STATE OF PUNJAB (JAFER IMAM, GAIENDRAGADKAR and VIVIAN

BOSE JJ.)

Criminal Trial-Culpable homicide amounting to murder- Prosecution to prove-Presence and Nature of Injury-Intention to cause that Particular Injury, which was 118<1 accidental or unintentional and was sufficient to cause death in the ordinary course of nature-Indian Penal Code (Act XLV of 1860), s. 300, 3rdly.

The accused thrust a spear into the abdomen of the deceased.

This injury caused his death.

In the opinion of the doctor the injury was sufficient to cause death in the ordinary course of nature. It was found by the Sessions Judge that the accused intended tc cause grievous hurt only.

In his opinion however the third clause of s. 300 Indian Penal Code applied.

He accordingly convicted and sentenced the accused under s. 302 Indian Penal Code.

The High Court upheld the conviction. It was argued that the third clause of s. 300 Indian Penal Code did not apply as it was not proved that the accused intended to inflict a

March II.

1958 bodily injury that was sufficient to cause death in the ordinary course of nature as s. 300 lndim Penal Code third clause states, Virsa Singh "If it is done with the intention of causing bodily injury to any v. person and the bodily injury intended to be inflicted is sufficient Tlie State of Punjab in the ordinary course of nature to cause death" : Held, that the prosecution must prove the following before it can bring a case under s. 300 Indian Penal Code third clause.

(1) It must establish, quite objectively, that a bodily injury is present.

(2) The nature of the injury must be proved; these are purely objective investigations. ( 3) It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. ( 4) It must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature.

This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

The third clause of s. 300 Indian Penal Code consists of two parts.

Under the firsi part it must be proved that there was an intention to inflict the injury that is found to be present and under the second part it must be proved that the injury was sufficient in the ordinary course of nature to cause death.

The words "and the bodily injury intended to be inflicted" are merely descriptive.

All this means is, that it is not enough to prove that the injury found to be present is sufficient to cause death in the ordinary course of nature; it must in addition be shown that the injury found to be present was the injury intended to be inflicted. Whether it was sufficient to cause death in the ordinary course of nature is a matter of inference or deduction from the proved facts about the nature of the injury and has nothing to do with the question of intention.

CRIMINAL

APPELLATE JURISDICTION : Criminal Appeal No. 90...of 1957.

Appeal by special leave from the judgment and order dated November 21, 1956, of the Punjab High Court in Criminal Appeal No. 326 of 1956 arising out of the judgment and order dated June 26, 1956, of the Court of the Sessions Judge at Ferozepore in Sessions Case No. 8 of 1956. Jai Gopal Sethi and R. L. Kohli, for the appellant.

N. S. Bindra and T. M. Sen, for the respondent.

1958. March 11. The Judgment of the Court was delivered by

' ,.

BOSE J.-The appellant Virsa Singh has been 1958 sentenced to imprisonment for life under s. 302 of the Indian Penal Code for the murder of one Khem Singh.

Vlrsa Singh He was grantd pcial leave to appeal by this Court The 8101;01 Punjab but the leave is limited to

"the question that on the finding accepted by the Bose J.

Punjab High Court what offence is made out as having been committed by the petitioner."

The appellant was tried with five others under ss. 302/149, 324/149 and 323/149 Indian Penal Code.

He was also charged individually under s. 302.

The others were acquitted of the murder charge by the first Court but were convicted under ss. 3i6, 324 and 323 read with s. 149, .Indian Penal Code: On appeal to the High Court they were all acquitted.

The appellant was convicted by the first Court under s. 302 and his conviction and sentence . were upheld by the High Court.

There was only one injury on Khem Singh and both Courts are agreed that the appellant caused . it. It was caused as the result of a spear thrust and the doctor who examined Khem Singh, while he was still alive, said that it was

"a punctured wound 2" x r transverse in direction on the left side of the abdominal wail in the lower part of the iliac region just above the inguinal canal.

He also said that "Three coils of intestines were coming out of the wound."

The incident occurred about 8 p. m. on July 13,

1955. Khem Singh died about 5 p. m. the following day.

The doctor who conducted the post-mortem described the injury as-

"an oblique incised stitched wound 2f on the lower part of left side of belly, 1!" abov~ the left inguinal ligament. The injury was through the hole thickness of the abdominal wall. Peritonitis was present and there was digested food in that cavity.

Flakes of pus were sticking round the small intestines M2SC (Part X)/61-10

19ss and there were six cuts ........... at various places, and digested food was flowing out from three cuts." Ylrsa Singh The doctor said that the injury was sufficient to cause The Stat;~! Punjab death in the ordinary course of nature.

The learned Sessions Judge found that the appel- Bose J. !ant was 21 or 22 years old and said-

"When the common object of the assembly seems to have been to cause grievous hurts only, I do not suppose Virsa Singh actually had the intention to cause the death of Khem Singh, but by a rash and silly act he gave a rather forceful blow, which ultimately caused his death. Peritonitis also supervened and that hastened the death of Khem Singh. But for that Khem Singh may perhaps not have died or may have lived a little longer." Basing on those facts, he said that the case fell under s. 300, 3rdly and so he convicted under s. 302, Indian Penal Code.

The learned High Court Judges considered that "the whole affair was sudden and occurred on a chance meeting." But they accepted the finding that the appellant inflicted the injury on Khem Singh an<l accepted the medical testimony that the blow was a fatal one.

It was argued with much circumlocution that the facts set out above do not disclose an offence of murder because the prosecution has not proved that there was an intention to inflict a bodily injury that was sufficient to cause death in the ordinary course of nature. Section 300, 3rdly was quoted :

"If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death . " It was said that the intention that the section requires must be related, not only to the bodily injury inflicted, but also to the clause, "and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death." This is a favourite argument in this kind of case but is fallacious. If there is an intention to inflict an injury that is sufficient to cause death in the ordinary

S.C.R.

SBPREME COURT REPORTS 1499

course of nature, then the intention is to kill and in 19ss that event, the "thirdly" would be unnecessary because the act would fall under the first part of the Vlrsa Singh section, namely- TlieStat; f Pun}ob "If the act by which the death is caused is done with the intention of causing death." Bose 1.

Jn our opinion, the two clauses are disjunctive and separate. The first is subjective to the offender :

"If it is done with the intention of causing bodily injury to any person."

It must, of course, first be found that bodily injury was caused and the nature of the injury must be established, that is to say, whether the injury is on the leg or the arm or the stomach, how deep it penetrated, whether any vital organs were cut and so forth. These are purely objective facts and leave no room for inference or deduction : to that extent the enquiry is objective; but when it comes to the question of intention, that is subjective to the offender and it must be proved that he had an intention to cause the bodily injury that is found to be present.

Once that is found, the enquiry shifts to the next clause-

" and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death." The first part of this is descriptive of the earlier part of the section, namely, the infliction of bodily injury with the intention to inflict it, that is to say, if the circumstances justify an inference that a man's intention was only to inflict a blow on the lower part of the

leg, or some lesser blow, and it can be shown that the blow landed in the region of the heart by accident, then, though an injury to the heart is shown to be present, the intention to inflict an injury in that region, or of that nature, is not proved. In that case, the first part of the clause does not come into play. But once it is proved that there was an intention to inflict the injury that is found to be present, then the earlier part of the clause we are now examining - M2SC (Part X)/61-11

19ss "and the bodily injury intended to be inflicted" is merely descriptive. All it means is that it is not Vlr1a Singh enough to prove that the injury found to be present

77ie s1.,;~, Punjab is sufficient to cause death in the ordinary course of

_ na, ture; it must in addition be shown that the injury Bose J. is of the kind that falls within the earlier clause, namely, that the injury found to be present was the injury that was intended to be inflicted. Whether it was sufficient to cause death in the ordinary course of nature is a matter of inference or deduction from the proved facts about the nature of the injury and has nothing to do with the question of intention.

In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted.

It is, of course, not necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart. Otherwise, a man who has no knowledge of anatomy could never be convicted, for, if he does not know that there is a heart or kidney or bowels, he cannot be said to have intended to injure them. Of course, that is not the kind of enquiry. It is broadbased and simple and based on commonsense : the kind of enquiry that "twelve good men and true" could readily appreciate and understand.

To put it shortly, the prosecution must prove the following facts before it can bring a case under s. 300, "3rdly";

First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved; These are purely objective investigations.

Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.

--•,

Once these three elements are proved to be present, 19ss the enquiry proceeds further and, Fourthly, it must be proved that the injury of the Virsa Singh type just dscribed. made up of the thee elemens set The Stat:~! Punjab -0ut above is sufficient to . cause death m the ordinary _ -course of nature. This part of the enquiry is purely Bose J. objective and inferential and has nothing to do with the intention of the offender.

Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout ) the offence is murder under s. 300, 3rdly. It does not matter that there was no intention to cause death. It does not matter that there )Vas no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry .is purely objective and the -only question is whether, as a matter of purely objective inference,. the injury is sufficient in the -ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder.

If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the 'injury was accidental or otherwise unintentional.

We were referred to a decision of Lord Goddard in R. v. Steane (') where the learned Chief Justice says that where a particular intent must be laid and charged, that particular intent must be proved. Of course it must, and of course it must be proved by the prosecution. The only question here is, what is the extent and nature of the intent that s. 300 3rdly requires, and how is it to be proved ?

The learned counsel for the appellant next relied on a passage where the learned Chief Justice says that :

(1) [1947] 1 All K R, 813, 816.

Virsa Singh

Vo Tiie Stale of

Punjab

Bose J.

"if, on the totality of the evidence, there is room for more than one view as to the intent of the prisoner, the jury shoul~ be directed that it is for the. prosecution to prove the intent to the jury's satisfaction, and if, on a review of the whole evidence, they either think that the intent did not exist or they are left in doubt as to the intent, the prisoner is entitled to be acquitted." We agree that that is also the law in India. But so is this. We qoute a few sentences earlier from the same learned judgment :

"No doubt, if the prosecution prove an act the natural consequences of which would be a certain result and no evidence or explanation is given, then a jury may, on a proper -direction, find that the prisoner is guilty of doing the act with the intent alleged." That is exactly the position here. No evidence or explanation. is given about why the appellant thrust a spear, into the abdomen of the deceased with such force that it penetrated the bowels and three coils of the intestines came out of tl; le wound and that digested food oozed out from cuts in three places. In the absence of evidence, or reasonable explanation, that the prisoner did not intend to stab in the stomach with a degree of force sufficient to penetrate that far into the body, or to indicate that his act was a regrettable accident and that he intended otherwise, it would be perverse to conclude that he did not intend to inflict the injury that he did. Once that intent is established (and no other conclusion is reasonably possible in this case and in any case it is a question of fact), the rest is a matter for objective determination from the medical and other evidence about the nature and seriousness of the injury.

The learned counsel for the appellant referred us to Emperor v. Sardarkhan Jaridkhan (')where Beaman J. says that-

"Where death is caused by a single blow, it is always much more difficult to be absolutely certain what degree of bodily injury the offender intended."

With due respect to the learned Judge he has linked

{<) (1917) LL.R. 41 Born. 23, 29.

-->

up the intent required with the seriousness of the injury, and that, as we have shown, is not what the section requires. The two matters are quite separate and distinct, though the evidence about them may sometimes overlap. The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, .so far as the intention is concerned, is not whether he intended to

kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the idence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question.

It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is not one of law but

Virsa Singh

Tile State of Punjab

Bose J.

Virsa Singh

The Stale of Punjab

Bose J.

March 19.

one' of .fact; and whether the conclusion should be one way or .the the~ is a matter of prof, where necessary, by ca, lling Ih aid all reasonable mferences of fact in the absence of direct testimony. It is not one for guess-work and fanciful conjecture.

The appeal is dismissed.

Appeal dismissed.

BALA SUBRAHMANYA RAJARAM v.

B.C.

PATIL AND OTHERS (JAFER IMAM, SUBBA RAo and VIVIAN BOSE JJ.)

Wages-If include bonus awarded by Industrial Court-Payment of Wages Act (/J1of1936), s. 2(vi), JJ.

The Industrial Court, Bombay, awarded bonus equal to 4! months' wages to the operatives of the Tata Mills Ltd. and directed that those operatives who were no longer in the service of the Mills should be paid the bonus in one lump sum by a fixed date and in such cases claims in writing should be made to the Manager of the Mills. The operatives who made a claim before the date fixed were duly paid but payment was r.efused to operatives who applied after that date. The operatives who had been refused payment made applications to the Authority under the Payment of Wages Act. The Mills contended that the Authority had no jurisdiction to entertain the application, but the contention was rejected. The Mills filed a writ petition before the Bombay High Court which was dismissed by a Single Judge and an appeal against that decision was also dismissed by a Division Bench: Held, that the bonus awarded by the Industrial Court was not wages within the meaning of s. 2 (vi) of the Payment of Wages Act and as such the Authority had no jurisdiction to entertain the application made to it under s. 15 of the Act. Though such bonus was remuneration it was not remuneration payable on the fulfilment of the terms of the contract of employment, express or implied, as required by s. 2 (vi).

F. W. Heilgers cl Co. v. N. C. ChalSJavarthi, [1949] F.C.R 356, followed.

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 35 & 36 of 1954.

.... '

Andhra

Andhra Pradesh

Madras

VIRSA SINGH

THE STATE OF PUNJAB (JAFER IMAM

BOSE JJ.

Indian Penal Code

s. 300, 3

s. 300

Indian Penal Code

s. 302

Indian Penal Code

s. 300

Indian Penal Code

s. 300

Penal Code

Virsa Singh

State of Punjab

s. 300

Indian Penal Code

s. 300

Indian Penal Code

Jai Gopal Sethi

R. L. Kohli

N. S. Bindra

T. M. Sen

BOSE

Virsa Singh

s. 302

Indian Penal Code

Khem Singh

Vlrsa Singh

Bose

ss. 302

Indian Penal Code

s. 302

ss. 3

s. 149

Indian Penal Code

s. 302

July 13,

Ylrsa Singh

s. 300, 3

s. 302

Indian Penal Code

Section 300, 3

s. 300

s. 300, 3

Goddard

s. 300

India

Beaman

Virsa Singh

SUBBA RAo

VIVIAN BOSE

s. 2(vi)

Payment of Wages Act

Bombay High Court

s. 2

Payment of Wages Act

s. 15

s. 2

[1949] F.C.R 356

CIVIL APPELLATE JURISDICTION


Virsa Singh

The Stale of Punjab

Bose J.

March 19.

SUPREME COURT REPORTS [1958]

one' of .fact; and whether the conclusion should be one way or .the the~ is a matter of prof, where necessary, by ca, lling Ih aid all reasonable mferences of fact in the absence of direct testimony. It is not one for guess-work and fanciful conjecture.

The appeal is dismissed.

Appeal dismissed.

BALA SUBRAHMANYA RAJARAM v.

B.C.

PATIL AND OTHERS (JAFER IMAM, SUBBA RAo and VIVIAN BOSE JJ.)

Wages-If include bonus awarded by Industrial Court-Payment of Wages Act (/J1of1936), s. 2(vi), JJ.

The Industrial Court, Bombay, awarded bonus equal to 4! months' wages to the operatives of the Tata Mills Ltd. and directed that those operatives who were no longer in the service of the Mills should be paid the bonus in one lump sum by a fixed date and in such cases claims in writing should be made to the Manager of the Mills. The operatives who made a claim before the date fixed were duly paid but payment was r.efused to operatives who applied after that date. The operatives who had been refused payment made applications to the Authority under the Payment of Wages Act. The Mills contended that the Authority had no jurisdiction to entertain the application, but the contention was rejected. The Mills filed a writ petition before the Bombay High Court which was dismissed by a Single Judge and an appeal against that decision was also dismissed by a Division Bench: Held, that the bonus awarded by the Industrial Court was not wages within the meaning of s. 2 (vi) of the Payment of Wages Act and as such the Authority had no jurisdiction to entertain the application made to it under s. 15 of the Act. Though such bonus was remuneration it was not remuneration payable on the fulfilment of the terms of the contract of employment, express or implied, as required by s. 2 (vi).

F. W. Heilgers cl Co. v. N. C. ChalSJavarthi, [1949] F.C.R 356, followed.

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 35 & 36 of 1954.

.... '

Appeals from the judgments and order dated August . 28, 1952, of the Bombay High Court in Appeals Nos. 34 and 35 of 1952,. arising out of the orders dated January 24, 1952, of the said High Court exercising its Civil Original Jurisdiction in. Misc.

Applications Nos. 302 of 1951 and 303, 304 and 305 of 1951 respectively.

R. J. Kolah, B. Narayanaswami, J. B. Dadachanji, S. N. Andley and Rameshwar Nath, for the appellant.

H. N. Sanyal, Addi. Solicitor-General of India, N. P. Nathwani and R. H. Dhebar, for respondent No. 3 in C. A 35 & No. 5 in C. A. 36.

D. H. Buch and Naunit Lal, for respondent No. 2 in C. A. 35 & Nos. 2-4 in C. A. 36.

1958. March 19.

The Judgment of the Court was delivered by

BOSE J.-These appeals arise out of petitions made ta the Bombay High Court under Art. 226 for writs of certiorari.

The. appellant is the Mana$er of the Tata Mills Limited, which carries on busmess in the manufacture and sale of textile. goods in Bombay and as such is responsible for the payment of wages under the Payment of Wages Act, 1936.

The first respondent was the Authority under the Payment of Wages Act at the times material to these appeals. The sixth respondent' is the present Authority. The Authority is entrusted with the duty of deciding cases falling within the purview of the Act.

The second, third, fourth and fifth respondents are employees in the Mills.

A dispute arose about a claim made by the operatives of the Mills for a bonus for the year 1948. This was referred to the Industrial Court at Bombay which made an award on April 23, 1949, and awarded a bonus equivalent to four and a half months' wages subject to certain conditions of which only the sixth is material here. It runs as follows :

"Persons who are eligible for bonus but who are

Bala Subrahmanya Ra}arom ,,, B. C. Patil and Others

Bose J.

19S8

Bala Subrah~ manya Rajaram

"· B. C. Patil andOtherJ

BoseJ.

not in the service of the Mill on the date of the payment shall be paid in one lump sum by the 30th November, 1949. In such cases, claims in writing should be made to the Manager of the Mill concerned."

Those operatives who made a claim before the date fixed above were duly paid but payment was refused to the third respondent, who applied much later, on the ground that the condition subject to which the award was made was not fulfilled.

The third respondent thereupon made an application before the first respondent, the Authority under the Payment of Wages Act.

Similar claims were made by the second, fourth and fifth respondents for a bonus for the year 1949. The Industrial Court awarded a bonus equal to two months' wages and in the sixth condition put the date as December 31, 1950.

By this time Labour Appellate Tribunals came into existence, so both sides filed appeals against the award to the Labour Appellate Tribunal of Bombay. The appeals failed and the award was upheld.

After that, the matter followed the same pattern.

Respondents 2, 4 and 5 applied for their bonus after December 31, 1950. The Mills refused to pay and these respondents applied to the first respondent, the Authority under the Payment of Wages Act.

The two sets of claims, that is to say, the claim of the third respondent for a bonus for the year 1948 and the claims of the second, fourth and filth respondents for bonuses for the year 1949, were heard together.

The appellant contested these applications on two grounds. He questioned the jurisdiction of the Authority to entertain the petitions made to it. He also contended that, in any event, as the condition subject to which the award was made, namely, an application on or before November 30, 1949, was not fulfilled, the claim for a bonus did not lie.

The first respondent held that it had jurisdiction and, after hearing the parties on the merits, decreed the various claims.

\-.

The appellant thereupon filed writ petitions in the High Court. They were heard and dismissed by Coyajee J.

An appeal was then filed in the same High Court and heard t!y the Chief Justice and Bhagwati J. They held that the questions raised were covered by an earlier decision of theirs in .another , case dated March l l, 1952, and, following that decision, dismissed the appeals without hearing further arguments, as counsel on both sides agreed that the matter was covered by the earlier decision. The appellant then applied for a certificate for leave to appeal here. This was granted by Chagla C. J. and Dixit J. on February 2, 1953.

The first question that we have to decide is. whether the first respondent bad jurisdiction to entertain the petitions made to him as the Authority under the Payment of Wages Act. This depends on whether these bonuses are "wages" within the meaning of the definition in s. 2(vi) of the Act

The scope of the Authority's jurisdiction is set out in s. 15 of the Act. It is to hear and decide.

(1) all claims arising out of deduction from wages, and

(2) all claims regarding delay in the payment of wages.

Therefore, unless these bonuses are "wages" within the meaning of the Act, the Authority will have no jurisdiction.

The definition of "wages" in s. 2(vi) of the Act is long and complicated but leaving aside the clauses in it that are not material for our present purpose, it run~-

" 'Wages' means all remuneration ........ which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable, whether conditionally upon regular attendance, good work or conduct or other behaviour of the person employed, or otherwise, to a person employed in respect of this employment or of work done in such employment, and includes any bonus or other additional remuneration

Bala Subrah manya Rafaram v.

B. C. Patil and Others

Bose J.

B•la Subrahmanya Rajaram v.

B. C. Patil and Others

BoseJ.

of the nature aforesaid which would be so payable and any sum payable to such person by reason of the termination of his employment, but does not include ................ " . and then five matters that are not included are set out.

Now consider this clause by clause. " 'Wages' means all remuneration." Is bonus a remuneration ?

We think it is. Remuneration is only a more formal version of "payment" and payment is a recompense for service rendered.

Now it is true that bonus in the abstract need not be for services rendered and in that sense need not be a remuneration ; for example, there is a shan:holder's bonus in certain companies, and there is a life insurance bonus and so forth.

But that is not the kind of bonus contemplated here because the kind of remuneration that the definition contemplates is one that is payable.

"in respect of his employment or of work done in such employment." Therefore, the kind of bonus that this definition contemplates is one that is remuneration for services rendered or work done. Accordingly, it is a "remuneration" and as the definition includes all remuneration of a specified kind, we are of opinion that bonus of the kind contemplated here falls within the clause that says it must be "remuneration."

Next comes a clause that limits the kind of remuneration, for, though the opening words . are "all remuneration" the words that follow limit it to all remuneration of the kind specified in the next clause, that is, to remuneration

"which would be payable if the terms of the contract of employment, express or implied, were fulfilled."

Now the question is whether the kind of bonus con- 4...,... templated by this definition must be a bonus that is payable as a clause of the contract of employment. We think it is, and for this reason.

If we equate "bonus" with "remuneration", the

..,

, ..

definition says clearly enough that the bonus must be such that it is payable "if the terms of the contract are fulfilled", that is to say , it will not be payable if the terms are not fulfilled.

Now, we can understand a position where a statute declares that whenever the terms of the contract of employment are fulfilled the bonus shall be payable; equally, we can envisage a situation in which an employer engages to pay a bonus should the terms

of the contract of employment be fulfilled, by a separate and independent agreement that is not part of the contract of employment. In either case, the matter could be said to fall within this part of the definition. But we can see no way in which a bonus can be said to be payable if and when the terms of the contract of employment are fulfilled outside these two cases (namely, legislation, or a separate contract that is not part of the contract of employment), except when it is payable by reason of a term, express or implied, in the contract of employment itself. In any event, if there are such cases, the present is nocone of them, for the bonus here is payable under an award of an Industrial Court and has nothing to do with the fulfilment or otherwise of the terms of the contract of employment, except indirectly.

It was argued that as an Industrial Court can direct payment of bonus should an industrial dispute arise in that behalf, the matter falls within the definition. But does it ? 0™=. of the matters that an Industrial Court might take into consideration before awarding a bonus is whether all the terms of the contract of employment have been duly fulfilled and it is possible that such a Court might refuse to award a bonus in cases where the terms were not fulfilled, but it would not be bound by such a consideration and its right to make an award of bonus is not conditional on the fulfilment of the terms of the contract of employment, whereas, under the definition, that is an essential irgredient. Therefore, even if due fulfilment of the terms of the contract of employment was to be one of the reasons for the award, the bonus so awarded would not be payable because the terms of the contract

Bala Subrahmanya Rajaram v.

B. C. Patil and Others

BoseJ.

Bala Subrahmanya Rojaram v.

B. C. Patil and Others

BostJ.

had been fulfilled but because of an industrial dispute and because in order to settle it, the Court awarded the bonus.

It is not necessary to analyse the definition any further (except for one clause) because, even if all the other ingredients are present, the clause we have just considered would exclude a bonus of the kind we have here, that is to say, a bonus awarded by an Industrial Court.

The clause we have yet to examine is this :

"and includes any bonus or other additional remuneration of the nature aforesaid which would be so payable." It was contended that the words "and includes any bonus" stand by themselves and that the words that follow must be disregarded when bonus is under consideration because they relate only to "additional remuneration" and not to "bonus".

Now, it may be possible to say that the words "of the nature aforesaid" only govern the words "additional remuneration" and that they do not apply to "bonus", with the result that the inclusion clause "and includes any bonus etc." would refer to two separate things, namely,

(1) bonus and .

(2) other additional remuneration of the nature aforesaid. ' In our opinion, the clause means-

(1) "bonus ................ which would be so payable", and

(2) "other additional remuneration of the nature aforesaid which would be so payable." If that is correct, then the words "which would be so payable" throw us back to the earlier part of the definition and we reach the position that the kind of bonus that is included by the inclusion clause is the kind that would be payable "if the terms of the contract of employment, express or implied, are fulfilled."

There is another reason for reaching this conclusion. The opening words of the definition make it clear that "wages" means remuneration that is payable when the terms of the contract of employment are fulfilled. Therefore, that is something certain.

... •.

- .

One knows ahead of time that if the terms of the contract are fulfilled, then the bonus is payable. It may be that the exact amount has yet to be determined but the fact that bonus is payable and car1 be claimed as soon as the terms of the contract are fulfilled is a matter that can be predicated beforehand, that is to say, even before the terms of the contract are fulfilled, or indeed, even btfore the work has started if the contract is made that far ahead. But that is not the case when bonus is awarded by an Industrial Court, for there it is impossible to say ahead of time whether bonus will be awarded or. not; indeed, at the time the contract is entered into, it would be impossible to say whether such a claim could be laid at all because a difference of opinion between one worker and his employer about the right to bonus would not necessarily lead to an industrial dispute. When an Industrial Court awards a bonus, independent of any contract, it does so only if there is an available surplus for a distribution of bonus and the amount of the award would depend on the extent of the surplus available for that purpose. Therefore, the fulfilment or otherwise of the terms of the contract of employment is not an essential ingredient of an award of an Industrial Court.

In F. W. Heilgers & Co. v. N. C. Chakravarthi (1), the learned Judges of the Federal Court held that a bonus not payable under a contract of employment does not fall within the definition of ''wages" ins. 2(vi) of the Payment of Wages Act, as it stood before the amendment in 1957. We are concerned with the old definition here and not the amended one, so the present case is, in our opinion, covered by that authority.

It is true that no bonus had been awarded in Heilgers' case (1) and that therefore there was no ascertained sum, whereas there is one in the present case, or rather a sum that is ascertainable, but that was only one of the grounds on which the learned Judges proceeded. They held that in order to bring a particular

(1) (1949) F.C.R. 356, 360.

Bala Subrahma11ya Rajaram v.

B. C- Patil and Others

Bose J.

Bala Subrah manya Ra}aram v.

B. C. Patil and Olhefs

Bost I.

payment under the definition of "wages", two things are necessary-

"(l) a definite sum, and .

(2) a contract indicating when the sum becomes payable"; and they said-

"It is obvious that unless there is an express provision for paying a stipulated sum, the definition will not cover such a payment."

The bonus in the present case is not , payable because of a contract but because of the a.ward of an Industrial Court. Therefore, according to the Federal Court, it is not "wages" within the meaning of the Payment of Wages Act. .

In 1957 the definition was amended and the following was added: "' ' d' Id wages means ........ an me u es

(c) any additional remuneration payable under the terms of employment (whether called a bonus or by any other name);

but does not include-

(l) any bonus (whether under a scheme of profit sharing or otherwise) which does not form part of remuneration payable under the terms of employment. ........... " The change would have been unnecessary had the law been otherwise under the old definition; nor is it possible to say that the clause was added by way of abundant caution because the Federal Court decided otherwise in 1949. In view of this amendment, and in view of the Federal Court's decision, we do not feel justified in taking a different view, especially as we think the decision was right.

The learned Judges of the Bombay High Court tried to distinguish the Federal Court's judgment on the ground that no bonus had been declared there and so there was no ascertained sum, but, as we have pointed out, the ratio of the decision covers the present case and, in any case, that is our view quite apart from their conclusion.

On this view, it is not necessary to consider the other points that were argued because, if the definition of "wages", as it stood before the amendment, is not wide enough to include a bonus of the kind we have here, namely, one payable under u.n award of an

Industrial Court, then, the Authority under the , Payment of Wages Act had no jurisdiction to entertain the petitions made to it under s. 15 of the Act.

The appeals are allowed with costs. The decisions of the learned High Court Judges are set aside and also the decrees of the Authority under the Payment of Wages Act. There will be only one set of costs.

Appeals allowed .

Bala Subrahmanya Rajaran v.

B. C. Patil and Others

BoseJ.

Virsa Singh

Bose J.

BALA SUBRAHMANYA RAJARAM

B.C.

PATIL AND OTHERS

SUBBA RAo

s. 2(vi)

Industrial Court, Bombay

Tata Mills Ltd.

Payment of Wages Act

Bombay High Court

s. 2

Payment of Wages Act

s. 15

s. 2

[1949] F.C.R 356

CIVIL APPELLATE JURISDICTION

R. J. Kolah

B. Narayanaswami

J. B. Dadachanji

S. N. Andley

Rameshwar Nath

N. Sanyal

N. P. Nathwani

R. H. Dhebar

D. H. Buch

Naunit Lal

BOSE

Art. 226

Tata Mills Limited

Payment of Wages Act

Industrial Court at Bombay

April 23, 1949

Bala Subrahmanya Ra}arom

B. C. Patil

Bose

Bala Subrah~ manya Rajaram

Payment of Wages Act

Labour Appellate Tribunal of Bombay

Payment of Wages Act

November 30, 1949

Coyajee

Bhagwati

March l l, 1952

Chagla

Dixit

February 2, 1953

Payment of Wages Act

s. 2(vi)

s. 15

s. 2(vi)

Payment of Wages Act

Heilgers

(1949) F.C.R. 356

Payment of Wages Act

Payment of Wages Act

s. 15

Payment of Wages Act


Bombay Dyri!SQ <b

MtJ/nujar.Mdinq .co.1W.

\".

The State o/ Bum.bay umd Ol/u:r8

VnkaWama

Aiytn' J.

JanVGry 22.

SUPREME COURT REPORTS [1958]

stated above. The appeal succeeds in part, but as it is stated that "unpaid accumulations" form by far the most substantial portion of the claim, we direct the respondents to pay half the costs of the appellant here and in the Court below.

Appeal allowed in part.

RAJA GANGA PRATAP SINGH

THE ALLAHABAD BANK LTD., LUCKNOW

\S. R. DAS C. J., VENKATARAMA AIYAll, B. P. SINHA,

J. L. KAPUR and A. K. SARXAll JI.)

Statute, Constitutional validity of-Whether a question of inteTPretation of the Conltitution-Severabilitl/, if 1hottld be considered before deciding question of validitv-Dutii of Court

-Code of Civil Procedure (V of 1908), s. 113 proviso-Con1Utution of India, An. 228.

The respondent, a scheduled bank, sued the appellant for recovery of money under a mortgage. The appellant claimed reduction of the debt under the Uttar Pradesh Zamlndari Debt Reduction Act, 1953. An advance or debt due to a scheduled bank was excluded from the definition of "debt" lliven In the Act. The appellant contended that the definition In so far as It excluded certain debts offended Art. 14 of the Constitution as it made an arbitrary distinction between several cluses of debton.

The appellant applied to the court under the proviso to 1. 113 of the Code of Civil Procedure prayinc that a case be stated for the opinion of the High Court as to the validity of the impugned portion of the definition. The Court rejected the application. The appellant made an application in revision to the High Court and also an application under Art. 22.8 of the Constitution for withdrawing the case for a decision of the question of the validity of the definition. The Higb Court dismiased the aPplications. The Courts below held that in eitber view of the question as to the validity of the impu&ned portion of the definition, the appellant would be left without the remedy which he sought, because that portion of the definition was not severable from the rest and the whole definition would have to be excluded and therefore it was not necessary to decide that question to dispose of the case :

S.C.R.

SUPREME coun:r REPORTS 1151

Held, that the question raised by the appellant came both 1968 within the proviso to s. 113 of the Code and Art. 228 of the Con- . - stitution. The question whether the impugned part of the defini-8".111 8 . alt:lp tion contravened Art. 14 was a question as to the interpretation """ of the Constitution and that question must be decided first. The PT.e.Ji.kabad question of severability could arise only after that question had Bank Lt<l been decided and the impugned part field invalid, Luolma111 .,

CIVJL APPELLATE JuRJSDJCTTON: Civil Appeal No. 357 of 1957.

Appeal by special leave from the judgment and order dated February 28, 1956, of the Allahabad High Court (Lucknow Bench) in Misc. Case No. 4 of 1955 and Civil Revision No. 189 of 1955, arising out of the order dated August 6, 1955 of the Civil Judge, Sitapur in Suit No. 16 of 1953.

Vidya Sagar. for the appellant.

Iqbal Ahmad, S. N. Andley and Rameshwar Nath, for the respondent.

1958, January 22. The following Judgment of the Court was delivered by

SARKAR J.-The respondent, a scheduled bank, sued the SarkGr J. appellant in the court of the Civil Judge, Sitapur m Uttar Pradesh, for the recovery of money due under an instrument of mortgage. The appellant contested the suit on several grounds one of which was that he was entitled to relief under the Uttar Pradesh Zamindar's Debt Reduction Act (U.P.

XV of 1953) which reduced the amount recoverable on a debt as defined in it. Now a debt was defined in the Act in these terms:

2(f) : "debt" means an advance in cash or in kind and includes any transaction which is in substance a debt but does not include an advance as aforesaid made on or after the first day of July, 1952 or a debt due to-

'U) the Central Government or Government of any

State;

(ii) a local authority;

(iii) a scheduled bank;

(iv) a co-operative society; and

Raj" f)anga Pralap

Singh

The .1lllahabwl &•nk Ltd.,

Lucknow

SUPHEME COURT REPORTS [1958]

(v) a waqf, trust or endowment for a charitable or religious purpose only.

(vi) a person, where the debt was advanced on his behalf by the Court of Wards to a ward.

As the respondent was a scheduled bank the debt due to it from the appellant was not a debt within this definition and consequently, no relief would appear to be available to . the appellant under the Act in respect of that debt. The appellant, however, contended that the definition in so far as it excluded certain debts offended Art. 14 of the Constitution in as much as it made an arbitrary distinction between several classes of debtors and denied the excluded debtors, the equal protection of the law and that hence that portion of the definition which excluded certain debts was invalid and should be struck out and the rest of the definition should be left as operative. If the appellant\ contention was justified, the definition would have to run as follows:

"debt" means an advance in cash CJr in coin and includes any transaction which is in substance a debt, and would then include the debt due by the appellant to tte respondent. If this was the correct position, then the appellant would be entitled to all the reliefs granted by the Act.

This defence, therefore, raised a question as to the vali-· <lity of a provision in the Act. So the appellant made an applicatibn to the Civil Judge, Sitapur, under the proviso to s. 113 of the Code of Civil Procedure asking him to state a case for the opinion of the High Court at Allahabad to which he was subordinate as to the invalidity of the impugned portion of the definition. That proviso is in these terms:

Provided that where the Court is satisfied that a case pending before it involyes a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which .is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to

S.C.R.

SUPRFJl\IE COUR'f REPORTS 1153

Ganga Prnla7 Sing!,

which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons Baja therefor, and refer the same for the opinion of the High Court.

The learned Civil Judge took the view that the impugned ponion of the definition infringed art. 14 of the Constitution

The .t1.Zlal1"bw

Bank L~I ..

JA,,; k/,,.·.;·

a~ it made an <irbitrary distinction between several classes of debtors and was therefore invalid, but he held that it was not ne&ssary for the disposal of the case to decide such question

t~ invalidity because even if it was decided in favour of the appellant, the result would be to exclude the entire definition from the Act as the offending portion was not severable from the rest and the appellant would, therefore, be in any event left without the protection of the Act. In this view of the matter he held that the proviso to s. 113 of the Code did no't apply and dismissed the application under it.

The appellant then made an application to the High Court at Allahabad for a revision of the order of the learned CiviLJudge. He at the same time made another application to the High Court under Art. 228 of the Constitution. That Mticle is in these terms:

If the High Court is satisfied that a case pending in a court subordinak to it' involves a substantial question of law as to the interpretation of this Constitution the determination nf which is necessary for the disposal of the case. it shall withdraw the case and may-

(a) either dispose of the case itself, or

(b) determine the said question of law and return the case to the court from which the case has been so withdrawn together with <i copy of its judgment on such question, and the

.~<iid court shall on receipt thereof proceed to dispose of the case in conformity with such judgment.

The appeilant in the latter application prayed that the High Court might be pleased to withdraw the case and either dispose it of itself, or determine the question of the validity of the definition of debt in the Act and return the case to the court

Sa'rl:nr .1.

1968 of the Civil Judge, Sitapur, for final disposal in accordance &; a c;,,.,.. P""°I' with such determination .

• 'liftflh Th< ; ilnM•~ The High Court disposed of both the applications by one f::.!'4" judgment. It held that there was no dispute as to the constitutional principle which was clear, namely, that every citizen was entitled to the equal protection of the laws and that any enactment which infringed that principle, is to that extent void, and that the only dispute was whether the impugned portion of the definition of a "debt" in the Act was severable from the rest and that was not a question of the interpretation of any provision of the Constitution but one of the construction of the Act itself. The High Court also held that even if any question of the interpretation of the Cons.titution arose, a determination of that question was not necessary for the disposal of the case. In this view of the matter the High Court dismissed the application in revision and also that under Art.

228. From this judgment the present appeal has been filed.

Sar/car J.

It seems clear to us that the question raised by the appellant in this case comes within the proviso to s. 113 of the Code . as also art. 228 of the Constitution. The question contemplated by the proviso to s. 113 of the Code is as to the validity of an Act or of a provision in it while Art. 228 of the Constitution has in view a question as to the interpretation of the Constitution. Now the question raised in the present case is as to the validity of a provision in the Zamindar's Debt Reduction Act This question is, however, also a question as to the interpretation of the Constitution, for the validity of the provision is challenged on the ground that it contravenes an article of the Constitution.

The point that really arises in this appeal is whether it is necessary for the disposal of the case to decide the question of the validity of a portion of the definition of a debt in the Act. All other conditions necessary for an order being made under the proviso to s. 113 of the Code or Art. 228 of the Constitution exist and as to this there is no serious dispute. It is l9S8 not necessary for us therefore to discuss these conditions.

Raja Ganga Pratap

Singh The courts below held that in either view of the question v.

The .AUaliabad of the validity of the impugned portion of the difinition of a Bank Ltd., debt, the appellant would be without the remedy which he Lucknoto sought, because that portion of the definition was not sever Sarkar J. able from the rest, and therefore it was not necessary to decide that question to dispose of the case. We are unable to agree with this view. The question of the validity of the defini

tion in so far as it excluded certain debts having been raised .and pressed by the appellant, it had . to be decided by the court. Without a decision of that question the case could not be disposed of. The fact that in the view of the court the impugned part of the definition was not severable from the rest and therefore in any view of the questioo as to the validity of the impugned part, the appellant would not get any relief, did not alter the position. The question a.s to the severability of the impuped part of the definition from the rest would arise only after it had been decided that the impugned part was invalid and so to be able to say that the impugne'd part of the definition was not severable from the rest, it had first to be held that that part was invalid. It could not be said that as the impugned part wa~ not severable from the rest it was not necessary for the disposal of the case to decide the question of the validity of the impugned part. We, therefore, bold that it is necessary to decide the question of the validity of the impugned part of the definition to dispose of the case.

This appeal is hence allowed. The High Court will withdraw the case and either dispose it of itself or determine 'the question o~ the validity of the definition of a debt in the Zamindar's Debt Reduction Act and return the case to the Civil Judge, Sitapur, for disposal in accordance with its deter- . mination of the question. The appellant wilf get the costs of

this appeal.

Appeal allowed.

RAJA GANGA PRATAP SINGH

THE ALLAHABAD BANK LTD., LUCKNOW

S. R. DAS

B. P. SINHA,

J.

L. KAPUR

Code of Civil Procedure

s. 113

Art. 14

the Code of Civil Procedure

Art. 22

s. 113

Art. 228

Art. 14

Allahabad High Court (Lucknow Bench)

Vidya Sagar

Iqbal Ahmad

S. N. Andley

Rameshwar Nath

SARKAR

SarkGr

Debt Reduction Act

.1lllahabwl &•nk Ltd.

Art. 14

Civil Judge, Sitapur

s. 113

the Code of Civil Procedure

High Court at Allahabad

Ganga Prnla7 Sing

Supreme Court

art. 14

s. 113

Art. 228

Art.

228

s. 113

art. 228

s. 113

Art. 228

Debt Reduction Act

s. 113

Art. 228

Raja Ganga Pratap

Sarkar

Debt Reduction Act