-~ .

.,.; .

,.. .

3 S.C.R.

SUPREME COURT REPORTS 207

surplus the Tribunal omitted to take into account the important fact that a sum of no less than £1,10,000/- has been capitalised out of the reserves at the beginning of the year. The second error was that the Tribunal in saying thal after paying 8 months' bonus there is a balance of £34,397 with the employer, omitted to take into consideration the fact that the company would also have the benefit of a large amount as income-tax rebate in respect of the bonus paid to its clerical staff .

Taking all these facts into oonsideration we a!'e of opinion that a fair order would be to award to the staff bonus equivalent to 3 months' basic wages in addition to the amount already paid voluntarily .

We therefore allow the appeal in part and in modification of the award made by the Industrial Tribunal award to the staff of M/s. Peirce Leslie Co., Ltd., bonus equivalent to 3 months' basic wages in addition to the amount already voluntarily paid by the company. There will be no order as to costs.

Appeal partly allowed.

TEA DISTRICTS LABOUR ASSOCIATION,

CALCUTTA ;;

EX-EMPLOYEES OF T~A DISTRICTS LABOUR

ASSOCIATION AND ANOTHER

(P. B. GAJENDRAGADKAR AND K. N. WANCHOO, .JJ.)

Industrial Dispute-Closure of business centres held mala fide- If no closure in the eye of law in spite of actual closure-Industrial.

Disputes (Appellate Tribunal) Act, r950 (XLVII ofr950),ss.22,

23, 25F(C).

As there was appreciable decline in the activities and business of the appellant it decided, by means of a resolution, to close down two local agencies at Koraput and Berhampur

{Ganjam) by May 31, 1957. About the same time the appellant also thought of retrenching its employees and decided to retrench ten of its employees with effect from December r, 1956. An industrial dispute having arisen as a result of the said closure and

M/s. Peirce Leslie Q>. Co. Ltd.

Kozhikode

Their Work1nen

Das Gupta .f.

Marh 9.

'960 retrenchment it was referred to the industrial tribunal for adjudication.

Before the Industrial Tribunal it was conceded on behalf Tea Distrts. of the appellant that the retrenchn1ent of ten employees was in- La]!ou' Association valid as the statutory notice required by s. 25F(c) of the Indusv.. trial Disputes (Appellate Tribunal) Act had not been served. It Thm was also stated afterwards that the statutory compensation had Ex-Employees been paid to the retrenched workmen. As regard"s the question of closure the tribunal came to the conclusion that the closure was not bona fide, and it held that the legal consequence was that there was not a real closure. Accordingly it directed the appellant to reinstate the ten retrenched workmen and to pay all its workmen employed at the two centres as though the centres had not been closed and were actually working. On appeal by special leave: Held, that when the two agencies had in fact been closed the finding about malafides could not justify the conclusion that the said two agencies should be deemed to continue and the tribunal was not entitled to make an award on that basis.

Banaras Ice Factory Ltd. v. Its Workmen, [r957] S.C.R.

143, explained and distinguished.

CIVIL

APPELLATE

JURISDICTION: Civil Appeal No. 169 of 1959.

Appeal by special leave from the Award dated June 26, 1958, of the Industrial Tribunal, Orissa, at Cuttack in Reference No. 2 of 1957.

M. 0. Setalvad, Attorney.General for India, Vidya Sagar and B. N. Ghosh, for the appellants.

M. S. K. Sastri and R. Patnaik, for respondent No. 1.

R. Patnaik, for respondent No. 2.

1960. March 9. The Judgment of the Court was delivered by

Gajendragadkar ].

GAJENDRAGADKAR, J.-This appeal by special leave arises from an industrial dispute between the appellant, the Tea Districts Labour Association, and the respondents the ex-employees of the appellant and another.

The dispute which was referred to the industrial tribunal for its adjudication consisted of two items:-

" (a) Whether the retrenchment of ten workers of Kora put and Ganjam Agencies of Tea Districts Labour Association effected on the 30th November, 1956, was justified, if not, to what relief those workers are entitled?

(b) Whether the closure of the Koraput and Ga.njam Agencies contemplated by Messrs. Jardine Henderson Ltd., Secretaries, Tea Districts Labour

. ~.

Association with effect from the 31st May, 1957, is

I96° bona fide: If so, whether the affected workers are T . . t'tl d t th It t' I t . ea D1st11cts en 1 e o some o er a erna ive emp oymen m Labour Association any other establishment under the same managev. ment. If not bona fide, to what relief those workers Their are entitled ? " Ex-Employees On this reference the award which was passed by the - Tribunal directs the appellant to pay to the ten retren- Gajendragadkar f. ched workmen all the pay and allowances to which they were entitled from November 30, 1956, to May 31, 1957, and it further orders the appellant to pay all its employees of the Berhampur and Kora put agencies, including the said ten retrenched workmen, all their pay and allowances from May 31, 1957, till one month after the publication of the award within which time the Management, if it so chooses, may close down the agencies, and in that event there would be no necessity for further notice of retrenchment to those ten retrenched workmen. The award has further added that if no bona fide closure is effected the ten retrenched workmen would be entitled to statutory notice if the Management still wants to retrench them. In regard to the other employees the award provides that they shall be entitled to all their pay and allowances as before and the agencies will in the eye of law be continuing agencies. The validity of the latter portion of the award in particular is challenged before us by the appellant in the present appeal by special leave.

The appellant is a Company Limited by .Guarantee of performance of service only for its members and was formed in 1917. The appellant's members are the owners of several tea gardens in West Bengal and Assam and its chief object is to recruit labour from different parts of India and to supply it to the said tea gardens according to their requirements. Jardine Henderson Ltd. have since 1953 been and still are the Secretaries of the appellant. The appellant had a number of establishments in different parts of India which were known as Local Agencies, Local Forwarding Agencies and Forwarding Agencies. The function of Local Agencies and Local Forwarding Agencies was mainly to recruit labour and the function of

r960 Forwarding Agencies was mainly to accommodate and feed labour while in transit to and from tea gardens.

Tea Districts

T d h d f h 11 ' fi 1 L b A . ,. owar st e en o t e appe ants na11c1a year a our ssocia ion • . v. 1955-56, the appellant's Secretary received estimates Their from the constituent members regarding their esti- Ex-Employees mated requirements of labour for the seasons from --

- 1956 to 1959, and it appeared that these estimates Gajendragadharf. were between 6,000 to 10,000 adults per annum, whereas in the past the appellant'R organisation catered for the recruitment of about 30,000 labourers per annum. . This appreciable decline in the activities and business of the appellant raised the problem of closing some of its agencies. In or about the beginning of March, 1957, it became apparent to the appellant that the requirement of labour was rapidly falling and that it would. be necessary to close some of its agencies. Thereupon, the question was considered by the appellant's general committee held on March 7, 1957, and it was decided inter alia that the two local agencies at Koraput and Berhampur (Ganjam) should be closed, if possible by April 1, 1957. It was in pursuance of this resolution that the appellant ultimately decided to close down the said two agencies by May 31,

1957. One of the points referred to the Industrial Tribunal is in regard to this closure.

About the same time the appellant also thought of retrenching its employees and in pursuance of its decision in that behalf ten employees were retrenched with effect from December 1, 1956. This retrenchment is the other issue referred to the Industrial Tribunal for adjudication.

Before the Industrial Tribunal it was conceded on behalf of the appellant that the impugned retrenchment of ten employees was invalid in view of the fact that the statutory notice required bys. 25F(c) had not been served, and the appellant agreed that the said ten persons would therefore be entitled to the same pay and privileges that they were getting on the date of retrenchment until May 31, 1957, which was the date of the closure. Thus the position with regard to the impugned retrenchment was not in doubt.

In regard to the question of closure the tribunal has observed that what it had to consider was wheth13r

...

...

.. .

the clOsure was real and bona fide. It considered the x960 evidence and it was inclined to hold that the apprehen- . . sions entertained by the appellant in regard to the fall Tea Distr'.c15. . . . . . d k . t"fi d d th t Labour A; sociation m its act1v1t1es an wor were not JUS i e an a v. the appellant could have carried on with the two Their agencies in question. The tribunal also considered Ex-Employees the fact that soon after the closure of Kora put and - Berhampur agencies the appellant opened another Gajendragadkar J. agency at Vizianagaram, which is a place in Andhra Pradesh but is at some distance from Koraput in Orissa. The tribunal was not satisfied that the explanation given by the appellant for reopening of the Vizianagaram agency, which had been closed on the 6th September, 1956, was satisfactory. In the result the tribunal came to the conclusion that the closure was not bona fide, and it held that th.e legal consequence was that it was not a real closure. It is on the basis of this conclusion that it issued a direction to the appellant to reinstate the ten retrenched workmen and to pay all its workmen employed at the two centres as though the centres had not been closed and were actually working. In reaching this conclusion the tribunal has relied on the observations made by this Court in Banaras Ice Factory Ltd. v. Its Workmen {1). . .

It is common ground that the compensation, due to the employees on the footing that the closure was not justified, has been duly paid to all the employees. concerned, and the learned Attorney General has stated to us that so far as the ten retrenched workmen are concerned they have also been paid the statutory compensation. On behalf of the appellant the learned Attorney General had made it perfectly clear that even if the appeal were to succeed the appellant would not claim any amount back from any of its employees concerned though it would be entitled in law to do so.

The main grievance made before us by the appellant is about the direction of the tribunal that the closure must be treated as non est and that the agencies must be held to be continuing and must continue to function despite their factual closure. The argument is

\1) (1957J S.C.R. 143

I960 that even if the closure may not be bona fide it does

T . . not follow that the closure in fact has not taken place.

L b ea AD" 1"~ 1 '. It is not a case where closure is a pretence or the plea a our ssociation f . l . . v. o closure is unrea m the sense that havmg purported

Thefr to close the agencies, the same agencies have been Ex-Employees functioning all the time, under a different garb. In . - fact the agencies have been closed even according to Ga1end, agadka, l the finding of the tribunal. It is contended that the finding about the rnala fides of the closure is open to serious doubt because the said finding is not supported by any legal evidence, and in a sense is opposed to the weight of the evidence on the record.

We are inclined to think that there is considerable force in this contention. But assuming that the closure is not shown to be bona fide, does it necessarily follow that the closure is a fiction and it is unreal in the sense that the agencies can be treated to be in existence in the eye of the law? That is the very narrow point which arises for our decision in the present appeal.

As we have already indicated the conclusion of the tribunal on this point is based on the observations of this Court in the case of Banaras Ice Factory Ltd.

v. I ts W orkrnen (1 ). It will, therefore, be necessary to examine those observations and decide whether they really justify the conslusion of the tribunal. In that case this Court was dealing with the decision of the Labour Appellate Tribunal on a complaint filed before it under s. 22 of the Industrial Disputes (Appellate Tribunal) Act (Act No. XL VIII of 1950), hereafter called the Act. It appears that during the pendency of an appeal before the Labour Appellate Tribunal the appellant Company decided to close down its business and gave notice to all the workmen that their services would be terminated upon the expiry of 30 days from July 16, 1952. That led to the complaint under s. 23 of the Act on the allegation that s. 22 of the said Act had been contravened. The Labour Appellate Tribunal had found that the closure was bona fide. It conceded that the appellant had the right to close its business for bona fide reasons ; but nevertheless it took the view that permission should have been obtained before the said closure. That is why acco.rding to it the appellant was guilty of contra- (tJ [1957] S.C.R. t43.

. ~

...

vening s. 22(b) of the Act. This decision was reversed ry6o by this Court. In doing so, the true scope and effect . . of ss. 22 and 23 of the Act were considered and it was Tea Distri.cts. h d h 'f h d 1 b fid h Labour Association el t at I t e unpugne c osure was ona e t en v. neither of the two sections came into operation. Thus Their the position was that the closure was bona fide and Ex-Employees that the appellant had committed no breach ofs. 22(b) - of the Act. In dealing with the scope and eftect of G11jendragadkar J. s. 23 this Court observed : " There is hardly any occasion for praying for permission to lift tbe ban imposed bys. 22, when the employer has the right to close his business and bona fide does so, with the result that the industry itself ceases to exist". Then i~ was added : " If there is no real closure but a mere pretence of a closure or it is mala fide, there is no closure in the eye of the law and the workmen can raise an industrial dispute and may even claim under s. 23 of the Act". It is on this latter observation that the Tribunal has founded its decision. With respect we do not read the observations as laying down an unqualified and categorical proposition of law that wherever a closure is mala fide it must be deemed to be unreal and non-existent. What this Court has said is that in cases of pretence of closure no closure in fact has taken place and for the purpose of s. 23 of the Act with which the Court was dealing a mala fide closure may conceivably be treated as falling in the same class as a pretence of closure. But in the present case the facts are not in dispute. There has been a closure and the agencies have been closed and their business has been wound up. If it is found that the closure was not bona fide the consequences would be the liability of the employer to pay the higher compensation under s. 25-FFF of the Industrial Dis- . putes Act, 1947. But it is difficult to see how when the two agencis have in fact been closed the finding about mala fides can justify the conclusion that the said two agencies should be deemed to continue and how the award can make an order on that basis.

Besides, as we have already indicated even the finding about the mala fides of the closure is itself open to serious doubt. In our opinion the said finding is

z960 based on mere surmises and is entirely opposed to the . . . weight of evidence adduced in this case.

Tea D"'''.'1'.

The result is that that portion of the award which Labou1' Association . d. . . v. issues irect10ns to the appellant on the basis that Their the closure, in the eyes of law, had not taken place is Ex-Employees set aside. The appeal succeeds to that extent and must be allowed. There will be no order as to costs in . ,.

Gojendragadkar J. the circumstances.

z960

March 9.

Appeal allowed.

MANAGEMENT OF VISHNU SUGAR MILLS

LIMITED, HARKHUA, DISTRICT

SARAN, BIHAR v.

THEIR WORKMEN° REPRESENTED BY CHINI

MILL MAZDOOR UNION, HARKHUA, DIST.

SARAN, BIHAR

(P. B. GAJENDRAGADKAR ANDK. N. WANCHOO, JJ.)

Industrial Dispute-Reference by State Governmcnt-Competence-C ontrolled industry - "Appropriate Government," meaning of-Industries (Development and Regulation) Act, r95r (65 of r95r). -Industrial Disputes Act, I947 (r4 of r947), s. z (a) (i).

A dispute relating to a workman in the appellant sugar mill, situate in Bihar, was raised by the Workers Union and a reference was made by the State Government. Under s. 2 (a) (i) of the Industrial Disputes Act, 1947, "'Appropriate Government' means in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government.: .... or concerning any such controlled industry as may be . specified in this behalf by the Central Government.. .... the Central Government". The question was whether the State Government was competent to make the reference, as sugar was a controlled industry under the Industries (Development and Regulation) Act, 195I.

Held, that in order that the appropriate government under s. 2 (a) (i) of the Industrial Disputes Act, 1947, may be the

Central Government for a controlled industry it is necessary that such controlled industry should be specified by the Central Government, and that in the absence of a notification for the

.....

Peirce Leslie Co., Ltd.

EX-EMPLOYEES OF TEA DISTRICTS LABOUR ASSOCIATION AND ANOTHER

P. B. GAJENDRAGADKAR

K. N. WANCHOO

ss.22,

23, 25F(C)

Koraput

Berhampur

Peirce Leslie Q>. Co. Ltd.

s. 25F(c)

M. 0. Setalvad

Vidya Sagar

B. N. Ghosh

M. S. K. Sastri

R. Patnaik

Gajendragadkar

GAJENDRAGADKAR

November 30, 1956

May 31, 1957

Berhampur and Kora

West Bengal

Assam

India

Jardine Henderson Ltd.

Gajendragadharf

v. 1955-56, the appellant's Secretary received estimates Their from the constituent members regarding their esti- Ex-Employees mated requirements of labour for the seasons from --
1956 to 1959, and it appeared that these estimates Gajendragadharf.

March 7, 1957

Ganjam

April 1, 1957

December 1, 1956

Kora

Vizianagaram

Andhra Pradesh

Orissa

6th September, 1956

s. 22

July 16, 1952

s. 23

s. 22

s. 22(b)

ss. 22 and 23

s. 23

s. 23

s. 23

s. 25

Gojendragadkar

MANAGEMENT OF VISHNU SUGAR MILLS

. N. WANCHOO

Industrial Disputes Act

Bihar

s. 2

Industrial Disputes Act, 1947

Central Government

s. 2

Industrial Disputes Act, 1947


SUPREME COURT REPORTS [1960]

z960 based on mere surmises and is entirely opposed to the . . . weight of evidence adduced in this case.

Tea D"'''.'1'.

The result is that that portion of the award which Labou1' Association . d. . . v. issues irect10ns to the appellant on the basis that Their the closure, in the eyes of law, had not taken place is Ex-Employees set aside. The appeal succeeds to that extent and must be allowed. There will be no order as to costs in . ,.

Gojendragadkar J. the circumstances.

z960

March 9.

Appeal allowed.

MANAGEMENT OF VISHNU SUGAR MILLS

LIMITED, HARKHUA, DISTRICT

SARAN, BIHAR v.

THEIR WORKMEN° REPRESENTED BY CHINI

MILL MAZDOOR UNION, HARKHUA, DIST.

SARAN, BIHAR

(P. B. GAJENDRAGADKAR ANDK. N. WANCHOO, JJ.)

Industrial Dispute-Reference by State Governmcnt-Competence-C ontrolled industry - "Appropriate Government," meaning of-Industries (Development and Regulation) Act, r95r (65 of r95r). -Industrial Disputes Act, I947 (r4 of r947), s. z (a) (i).

A dispute relating to a workman in the appellant sugar mill, situate in Bihar, was raised by the Workers Union and a reference was made by the State Government. Under s. 2 (a) (i) of the Industrial Disputes Act, 1947, "'Appropriate Government' means in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government.: .... or concerning any such controlled industry as may be . specified in this behalf by the Central Government.. .... the Central Government". The question was whether the State Government was competent to make the reference, as sugar was a controlled industry under the Industries (Development and Regulation) Act, 195I.

Held, that in order that the appropriate government under s. 2 (a) (i) of the Industrial Disputes Act, 1947, may be the

Central Government for a controlled industry it is necessary that such controlled industry should be specified by the Central Government, and that in the absence of a notification for the

.....

purposes of s. 2 (a) (i) of the Act, the State Government was. competent to make the reference. .

The Bijoy Cotton Mills Ltd. v. Their Workmen and Another [1960] 2 S.C.R. 982, followed.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 402 of 1958.

Appeal by special leave from the Award dated January 29, 1957, of the Industrial Tribunal, Bihar, at Patna in Reference No. 7 of 1956.

Sukumar Ghose, for the appellant.

M. K. Ramamurthi, R. K. Garg, A. N. Nag and Buresh Aggarwal, for the respondents.

S. P. Varma, for the intervener (State of Bihar).

1960. March 9. The Judgment of the Court was delivered by

WANCHOO, J.-This is an appeal by special leave against the award of the Industrial Tribunal, Patna.

The appellant is a Sugar Mill in District 8aran in the State of Bihar. One Ramkrishna Prasad was appointed as clerk in this mill in 1933. Gradually, he work" ed his way up an:d was drawing Rs. 140 per month in October 1952. The mill created a new post of store in-charge about that time as the work in the Stores Department of the Mill had increased. On October 4, 1952, Babulal Parekh was appointed to this new post on a consolidated salary of Rs. 180 per mensem. A letter of appointment was issued to him on that. date and he was told that he would be on probation for one year. He was also asked by another letter to. take charge immediately. He took charge on October 7,

1952. On November 28, 195,2, an order was passed by the mill distributing the duties between the various clerks employed in the Stores Department and it was stated therein that all the staff of the Stores Department would work as subordinate to Babula! Parekh.

On December 2, 1952, another order was passed by which Ramkrishna Prasad was ordered to hand over the keys of the stores to Babula! Parekh. Thereafter Ramkrishna Prasad made a representation against his being made subordinate to the stores in-charge . . This representation was rejected. A dispute was then raised by the union and a reference was made by th~.

Government of Bihar on May 9, .1956, in which the

Vishnu Sugar

Mills Ltd. v.

Their W orkinen

Wanshoo ].

Vishnu Sugar

Mills Ltd. v.

Their Workmen

Wanchoo ].

following three matters were referred to the tribu- nal:- 1.. Whether the status of workman, Sri Ramkrishna Prasad, Store-keeper, and the nature of the job performed by him has been changed to his prejudice with the appointment of a separate store incharge;

2. Whether in view of the satisfactory performance of duties of store-keeper for the last 20 years by the above-named workman, it was at all necessary to appoint a separate store in-charge over him with higher emoluments and whether Shri Ramkrishna Prasad is entitled to be appointed to the post of store in-charge; and

3. Whether the claim of the above-named workman for promotion to higher grades has been overlooked by the management, and 'if so, what relief the workman is entitled to.

When the matter came up before the tribunal, the main contention on behalf of the mill was that it was exclusively the management function to decide its labour strength, both qualitatively and quantitatively, and that so far as Ramkrishna Prasad was concerned his position had not been prejudicially affected by the creation of the new post of a store in-charge. The workmen on the other hand contended that Babula!

Parekh was first appointed as a mere clerk under Ramkrishna Prasad to begin with and it was only on November 28, 1952, that he was promoted over the head of Ramkrishna Prasad as a store in-charge, thus superseding Ramkrishna Prasad. This stand of the workmen was controverted by the mill and its case was that Babula! Parekh was from the very beginning appointed as store in-charge.

The tribunal came to the conclusion after a consideration of the evidence produced that Babula! was first appointed as an ordinary clerk in the Stores Department and was subsequently made a store incharge. It held that this caused reasonable heart burning to Ramkrishna Prasad. The tribunal was conscious of the principle that promotion to a higher post was the exclusive fnnction of the management and should not ordinarily be interfered with.

But

. ,•

.. ..

J ' ,

' t /

in spite of that it was of the view that. this was a fit case for interference ; but on other considerations which were not specified in the order by the tribunal it held that it would not interfere with the arrangement made by the mill; it instead granted an increment of Rs. 30 per month from the date of its order to Ramkrishna Prasad to meet the ends of justice. It is this order which is being challenged before us.

Two points have be.en urged before us on behalf of the appellant. In the first place it is urged that the reference was incompetent as sugar was a controlled industry and only the Central Government could have made the reference and not the State Government.

Secondly, it is urged that the order of the tribunal granting an increment of Rs. 30 per month to Ramkrishna Prasad was patently perverse and that there was no change in the status or emoluments of Ramkrishna Prasad by the creation of the new post and the employment of Babula! Parekh on it.

So far as the question of the. competence of the reference is concerned, we are of opinion that there is no force in it. A similar question was raised before this Court in The Bijoy Cotton Mills Ltd. v. Their Workmen and Another (1) and it was held there on the language of s. 2(a)(i) of the .Industrial Disputes Act, 1947, that before tl; i.at provision could apply to a controlled industry there must be a notification by the Central Government for the purposes of s. 2(a)(i) of the Industrial Disputes Act. Section 2(a)(i) is in these terms- "' Appropriate Government' means in relatipn to any industrial dispute concerning any industry carried o:ri by or under the authority of the Central Government or by a railway company or concerning any such controlled industry as may be specified in this behalf by the Central Government, or in relation to an industrial dispute concerning a banking or an insurance company, a mine, an oil-field or a major port, the Central Government. " The argument is that as sugar is a controlled industry under the Schedule to the Industries (Development and Regulation} Act, No. 65 of 1951, the appropriate

(1) [196o] 2 S.C.R. 982.

rg6o

Vishnu Suga,

Mills Ltd. v.

Thefr Workmen

Wanchoo ].

r960

Vishnu Sugar

Mills Ltd.

v. - Their Workmen

Wanchoo ].

Government fw the purposes ofs. 2(a)(i) with reference to the sugar Industry is the Central Government.

Reliance is placed on the words "concerning any such controlled industry as may be specified in this behalf by the Central Government" appearing in s. 2 (a)(i).

It is true that sugar is a controlled industry under the Industries (Development and Regulation) Act, 1951, but that in our opinion does not conclude the matter. In order that the appropriate government under s. 2(a)(i) may be the Central Government for a controlled industry, it is necessary that such controlled industry should be specified by the Central Government for the purposes of s. 2(a)(i).

This in our opinion is obvious from the words "controlled industry as may be specified in this behalf by the Central Government" appearing in s. 2(a)(i). It is not enough that an industry should be a controlled industry to attract this provision of s. 2(a)(i); it is further necessary that it should be specified in this behalf, namely for the purposes of s. 2(a)(i), as a controlled industry by the Central Government, before the Central Government can become the appropriate government within the meaning of s. 2(a)(i). We may in this connection refer to Firebricks and Potteries Ltd., etc. v.

Firebricks and Potteries Ltd. Workers Union Ltd. (1) where the same view has been taken. We are of opinion that that is the correct meaning of these words appearing in s. 2(a)(i), as already held in The Bijoy Cotton Mills Ltd. ('). The objection that the reference was not competent therefore fails.

We next come to the contention raised on behalf of the mill that there was in fact no prejudice w hatsoever so far as the status and emoluments of Ramkrishna Prasad were concerned by the creation of the new post and the appointment of Babula] Parekh on it, and that the tribunal was not justified in any case in granting an increment of Rs. 30 per mensem to Ramkrishna Prasad. The main consideration which influenced the tribunal in passing the order which it did was that in the view of the tribunal Ramkrishna Prasad was superseded by Babula! Parekh who was first appointed as a clerk under him. This view of

(1) I.L.R. [1955] Mys. 546.

. ~

...

the tribunal in our opinion is patently erroneous. The appointment order dated October 4, 1952, clearly

shows that Babula! Parekh was appointed as store incharge from the very beginning at Rs. 180 per month.

The tribunal referred to certain entries in the attendance register to hold that Babula! Parekh w0rked as clerk to begin with. It appears from the attendance register for the months of October, November and December that Babula! Parekh was marked present from October 7 to November 9. Thereafter from November II to the end of December he signed the attendance register. The statement of Chaudhari, Labour Welfare Officer, of the mill was that the practice in the mill was that officers used to be marked present in the attendance register while clerks used to sign it themselves.

The tribunal has concluded from the fact that Babulal

Parekh signed the register in November that. he must have been a clerk to begin with. The tribunal, however, completely overlooked that from October 7 to November 9, Babulal Parekh was marked present which would show that he was not a clerk. The tribunal also overlooked that even from November 28 to the end of December when Babulal Parekh admittedly was not a clerk but store in--charge he still signed the register, though he should have been marked present. Chaudhari was unable to explain how this happened, but he was hardly the person to explain thif'!. It is, however, clear from this confusion that no importance can be attached to whether Babula! Parekh was marked present in the register or signed it. The real thing which determined the status of Babula! Parekh was the appointment order dated October 4, 1952, which the tribunal has accepted as correct. A question was certainly put to Chaudhari at the end of his cross-examination that he had manufactured the statements put in by him only the night before but he denied it. We cannot accept the suggestion on behalf of the respondents that the appointment order was ante-dated, for no suchsuggestion was made to Chaudhari and the tribunal itself does not find so. It is clear therefore that the finding of the tribunal that Babula! Parekh was appointed as

z960

Vishnu Sugar

Mills Ltd. v.

Their Workmen

Wanchoo ].

Vishnu Suga1'

Mills Ltd. v.

Their Workmen

Wanchoo J.

clerk uuder Ramkrishna Prasad to begin with is patently perverse and it must be held that Babulal Parekh was from the very beginning working as store in-charge. Now in so far as Ramkrishna Prasad was concerned his work and emoluments remained the same after the appointment of Babulal Parekh. If a higher post was created in the Stores Department because of the increase in work, Ramkrishna Prasad could not claim promotion to it merely because he was working as a store-keeper before. There is of course no question of supersession in this case and therefore there is no reasonable cause for any heart burning. As the learned tribunal itself points out, "promotion to higher post was the exclusive function of the management" and if a new post is created and a new man appointed, as in this case, it cannot be said that Ramkrishna Prasad's status was in any way prejudicll-lly affected.' It is also remarkable that after saying all that it could in favour of Ramkrishna Prasad the tribunal did not interfere with the arrangement made by the mill for reasons which were not specified by it in the order.

As such there was no reason for granting an increment of Rs. 30 per mensem to Ramkrishna Prasad, for even the workmen did not' claim that he was entitled to any compensation in the shape of an increment in his pay because of the appointment of Babula! Parekh. The order of the tribunal therefore is patently unsupportable and must be set aside. We therefore allow the appeal and set aside the order of the tribunal and hold that no relief is due to Ramkrishna Prasad. In the circumstances we pass no order as to costs.

Appeal allowed.

. ~

THEIR WORKMEN REPRESENTED BY CHINI MILL MAZDOOR UNION, HARKHUA, DIST. SARAN, BIHAR

Industrial Disputes Act

Bihar

s. 2

Industrial Disputes Act, 1947

Central Government

s. 2

Industrial Disputes Act, 1947

s. 2

[1960] 2 S.C.R. 982

CIVIL APPELLATE JURISDICTION

M. K. Ramamurthi

R. K. Garg

A. N. Nag

Buresh Aggarwal

S. P. Varma

WANCHOO

Ramkrishna Prasad

October 4, 1952

Babulal Parekh

October 7,

1952

November 28, 195,2

Babula! Parekh

December 2, 1952

Government of Bihar

May 9, .1956

Ramkrishna Prasad

Babula

Parekh

November 28, 1952

s. 2(a)(i)

Industrial Disputes Act, 1947

s. 2(a)(i)

Industrial Disputes Act

Section 2(a)(i)

Vishnu Suga,

Mills Ltd.

Thefr Workmen

Wanchoo ].

r960

Vishnu Sugar

Mills Ltd.

s. 2

s. 2(a)(i)

s. 2(a)(i)

s. 2(a)(i)

s. 2(a)(i)

s. 2(a)(i)

s. 2(a)(i)

s. 2(a)(i)

Bijoy Cotton Mills Ltd.

Babula] Parekh

Chaudhari

Babulal

Parekh

October 7 to November 9


3 S.C.R. SUPREME COURT REPORTS

YELLAPPAGOUDA SHANKARGOUDA PATIL v.

BASANGOUDA SHIDDANGOUDA PATIL

(P. B. GAJENDRAGADKAR and K. N. W ANCHOO, JJ.)

Hereditary Office-Decree for partition of Watan land upheld by Privy Council in appeal-Abolition of Privy Council's jurisdiction-Issue of certificate by Collector-Application for cancellation of decree, if can be entertained by the Supreme Court-Bombay Hereditary Offices Act, r874 (Bom. III of r874), s. IO-Abolition of Privy Council jurisdiction Act, r949 (V of I949), ss. 5, 8-Constition of India, Arts. 374(2), r35.

T.he respondent brought a suit for partition against the petitioner in respect of certain Watan lands. The trial court decreed

- the suit but the High Court of Bombay reversed that decree in appeal. The Privy Council restored the decree of the trial court and an Order-in-Council was drawn ('hp accordingly. Execution of the said decree was resisted by the petitioner on the ground that the lands in suit being admittedly remuneration attached to the office of the Patil and as such governed by the Bombay Hereditary Offices Act, r874 (Born. III of r874) were not liable to partition. A certificate under s. IO of the Act was issued by the Collector at the instance of the petitioner and the executing Court cancelled the execution case. The respondent appealed to the High Court and that court following its own Full Bench decision in Rachapa v. Amingouda, (I88r) V Born. 283, held the certificate to .be invalid since it was not addressed to the Privy Council which had passed the. decree and set aside the order of the executing court. Thereafter a fresh certificate under s. IO of the Act was issued by the Collector and addressed to this Court and the petitioner applied to this Court under that section for the cancellation of the said decree granted by the Order-in-Council, the Privy Council having ceased to have any jurisdiction in the meantime. The question for decision was whether as a result of • the constitutional changes this court could be said to have passed the decree and could entertain the petition.

Held, that the petition must be allowed. The combined effect of ss. 5 and 8 of the Abolition of the Privy Council Jurisdiction Act, r949, and Arts. 374(2) and I35 of the Constitution was that this petition which lay to the Privy Council before it ceased to exercise its jurisdiction, could be presented to the Federal Court before the commencement of the Constitution and thereafter to this Court.

The certificate issued by the Collector and addressed to this t:ourt was, therefore, valid and must be given effect to.

CIVIL

APPELLATE JURISDICTION : Civil Misc.

Petition No. 530 of 1959. •

Match 9.

r960 Petition for cancellation of the decree dated

Yella;;, ouda N oveber 25, 1_9~9, gr:'1nted to te Respondent by the Shankargouda PalilOrder-m-Counml m Privy Counml Appeal No. XI of v. 1948 . . Basangouda .

G. K. Daphtary, Solicitor-General for India and Shiddangoudu Patil B. R. L. Iyengar, for the petitioner.

K. R. Bengeri and A. G. Ratnaparkhi, for the respondent.

1960. March 9. delivered by The Judgment of the Court was

Gajendragadkar ].

GAJENDRAGADKAR, J.-This petition has been made under s. 10 of the Bombay Hereditary Offices Act, 1874 (hereinafter called the Act), for cancellation of the decree granted to the respondent by the Order-in- Council dated November 25, 1949, in so far as the said decree purports tp operate on or include any right to the office of the Patilki and 11 Watan lands attached thereto. These lands are situated at Kirtgeri in the Taluk of Gadag. They form part of a Watan and, according to the revenue records, they have been assigned as remuneration to the. officiator for the time being under s. 23 of the Act. The petitioner has obtained a certificate prescribed under s. 10, and he contends that as a result of the said certificate this Court should cancel the decree as claimed by him in the petition.

It appears that the respondent had filed a suit against the petitioner in the Court of the First Class Sub Judge at Dharwar (Civq Suit No. 18 of 1934) and in the said suit he had claimed partition and possession of the properties as an adopted son of Shiddangouda. These properties were and are in the possession of the petitioner. The trial court passed a decree in favour of the respondent. The petitioner then preferred an appeal, No. 182 of 1935, in the High Court of Bombay. His appeal was allowed and the decree passed by the trial court was reversed. The respondent then challenged the High Court decree and went up to the Privy Council in Appeal No. 11 of 1948. His appeal was allowed, and the PriVl;.

Council held that the decree passed by the trial court should be restored.

Accordingly an Order-in-Council was drawn up on November 25, 1949; underthis order

.. ' -

the respondent was entitled to recover by partition a I96o half share in the properties in. suit. He was also . fi d f 'll h Yellappagouda entitled to mesne pro ts, past an uture, ti t e Shankargouda Patil recovery of possession or three years and an enquiry v. was directed in that behalf. Amongst the properties Basangouda . in which the respondent had thus become entitled to Shiddangouda Patil claim a share are the 11 lands in question .

In due course the respondent filed an execution Gajendragadkar l application Darkhast No. 41 of 1950, in the Court of the Subordinate Judge at Dharwar. The petitioner then contended that the 11 lands in question 'were governed by the provisions of the Act, they were assigned as remuneration to the office of the Patil., and as such they could not be partitioned. rt was also urged on his behalf that in the original suit the respondent had not claimed any. declaration that he was entitled to the office of Patil and that without such a claim the 11 lands in question could not be claimed by the respondent. In support of these pleas the petitioner relied upon the provisions of the Act contained in ss. 7, 10, 11, 13, 24, 25 and 36.

Pending the m;:ecution proceedings the petitioner applied for the grant of the prescribed certificate under s. 10 of the Act, and a certificate was accordingly issued by the Collector addressed to the Civil Judge, Senior Division, Dharwar. Thereupon the said court acted upon the certificate and cancelled the execution process which had been issued against the Patilki-a.ssigned property of Kirtgeri. The respondent challenged the said order before the Bombay High Court and his challenge was upheld by the said High Court. The High Court fo1lowed its own earlier Full Bench decision in Rachapa v. Amingouda(1) and held that the certificate issued by the Collector under s. 10 was invalid in that it was addressed not to the Privy Council which was the court which passed the decree but to the Civil Judge at Dharwar. In the result the order cancelling the execution process which had been • passed by the executing court was set aside and a direction was issued that the execution proceedings should proceed according to law.

Thereafter the petitioner applied for a reissue of a certificate under s. 10 and prayed that the certificate

(1) (1881) V Bom. 283,

z96o should be addressed to this Court as in the meanwhile the Privy Council had ceased to have any jurisdiction

ShYekllappagdouPda 1.1and this Court had become its successor. A certificate on argou a ai , 8 v. has accordingly been ISsued on January 13, 195 , Basangouda addressed to this Court. The certificate says that the Shiddangouda Patil property in question has been assigned as remunera- - tion to the office of Patil and as such it is inalienable Gajendragadkar ]. d t ) " bl t f 1 t d th an no la e o process o c1 v1 cour an so e process of attachment levied against the said property should be removed and the decree in so far as it relates to the said property should be cancelled. It appears that after this certificate was issued by the Assistant Commissioner, Gadag Division, the respondent filed an appeal to the Deputy Commissioner, Dharwar. His appeal, however, failed and the certificate issued by the Assistant Commissioner has been confirmed. It is with this certificate that the petitioner has moved this Court for the cancellation of the decree in question in regard to the 11 properties at Kirtgeri.

On behalf of the respondent it has been urged before us that the decision of the Bombay High Conrt operates as res jud, icata and so, in view of the said decision, the present certificate also should be held to be invalid. The argument is that the effect of the decision of the Bombay High Conrt is that the certificate should have been addressed to the Privy Council, and since it is addressed to this Court it is in valid.

We are not impressed by this argument. What the Bombay High Court has, held is that the certificate must be issued to the court which passed the decree, and if in law this Court can be said to be in effect and in substance the Court that passed the decree, then the certificate must be hel<l to be perfectly valid.

Therefore, there is no substance in the argument of res judicata. The main question which falls to be considered is whether this Conrt can, in view of the constitutional changes which have taken place in the meantime, be said to be the Court that has passed the _ present decree. In our opinion, the answer to this -~ question must be in favour of the petitioner. Let us, therefore, proceed to consider the relevant statutory provisions.

••••. ,,..<

3 S.C.R. SUPREME COURT RE£0RTS 225

Section 2 of the Abolition of the Privy Council z960 Jurisdiction Act, 1949, has provided, inter alia, that Y 11 as from the appointed day which was October 10, 1949, shak;;:::;:atil

the jurisdiction of His Majesty in Council to entertain v. appeals and petitions from or in respect of any judg- Basangouda ment, decree or order of any court or tribunal within ShiddangoudaPatil the territory of India shall cease save hereinafter G . d-dk 1 provided. Section 4(b) provides that nothing containaJen raga ar • ed in s. 2 shall affect the jurisdiction of His Majesty in Council to dispose of any Indian appeal or petition on which the Judicial Committee has, after hearing the parties, reserved judgment or order. This provision applied to Appeal No. 11 of 1948 between the parties then pending before the Privy Council.

Section 5 confers on the Federal Court corresponding jurisdiction to entertain and dispose of Indian appeals and petitions which His Majesty in Council has, whether by virtue of His Majesty's prerogative or otherwise, immediately before the appointed day. In other words, after the appointed day the Federal Court was given jurisdiction to entertain and dispose of not only Indian appeals but also petitions, and that would naturally include a petition like the present with which we are dealing. Section 8 dealt with the effect of the orders of His Majesty in Council; it provided that any order made by His Majesty in Council on an Indian appeal or petition, whether before or after the appointed day shall, for all purposes, have the effect not only as an order of His Majesty in Council but also as if it were an order or decree made by the Federal Court in exercise of the jurisdiction conferred by this Act. This then was the position with regard to the jurisdiction and powers of the Federal Court vis-a-vis the appeals and petitions pending before the Privy Council and orders niade on them.

The next relevant provisions are contained in.

Art. 374 and Art. 135 of the Constitution. Art. 374(2) provides that all suits, appeals and proceedings, Civil or Criminal, pending in the Federal Court at the commencement of the Constitution, shall stand removed to the Supreme Court, and the Supreme Court shall have jurisdiction to hear and determine the same and the judgments and orders of the Federal'

r96o Court delivered or made before the commencement of the Constitution shall have the same force and effect Yellappagouda "f h h d b d l" d d b h S Shankargouda Patil as I t ey a een e ivere or ma e y t e upreme v.

Court. It is with the latter part of Art. 374(2) that Basangouda we are concerned in the present petition. \Ve have Shiddangouda Patil already seen that the. Order in Council issued in -- accordance with the judgment of the Privy Council Gajendragadkar J. in Appeal No. 11of1948 had to be treated as if it was an order and decision of the Federal Court under the relevant provisions of the Act of 1949. Now another fiction has been introduced by Art. 374(2) and the said order and decree has now to be treated as if the decree had been passed and the order had been made by the Supreme Court. That takes us to Art. 135.

This article provides that until Parliament by law otherwise provides the Supreme Court shall also have jurisdiction and powers with respect to any matter to which the provisions of Art. 133 or Art. 134 do not apply, if jurisdiction and powers in relation to that matter were exercisable by the E'ederal Court immedlll.tely before the commencement of this Constitution under any existing law. We have already noticed that the Federal Court had jurisdiction to deal with a petition like the present before the commencement of the Constitution ; that jurisdiction can now be exercised by this Court as a result of Art. 135. The position, therefore, is that the petition which could have been presented to the Privy Council if the jurisdiction of the Privy Council had not been abolished could have been presented before the Federal Court before the commencement of the Constitution and can be presented to this Court after the commencement of the Constitution. We, therefore, feel no doubt that as a result of the relevant statutory provisions to which we have referred the certificate issued in the present case to this Court is valid and must be given effect to.

It is not disputed that the properties in respect of which the certificate has been issued are properties assigned as remuneration to Patilki office and are governed by the provisions of the Act. It is also conceded that if the certificate is duly issued under s. 10 of the Act it makes it obligatory on the court to

...

...

cancel. the decree in regard to the properties covered x960 by the certificate. Section 10 provides, inter alia, " 11 d h h . h 11 h

C JI h b , e appagou a t at w en it s a appear to t e o ector t at y ShankargoudaPatil virtue of, or in execution of, a decree or order of any v. court any watan or any part thereof, or any of the Basangouda profits thereof, recorded as such in the revenue records Shiddangouda Patil or registered under this Act, and assigned under s. 23 G . - as remuneration of an officiator has or have, after the aJendragadkar f . . date of this Act coming into force, passed or may pass without the sanction of the State Government into the ownership or beneficial possession of any person other than the officiator for the time being, the court shall, on receipt of a certificate under the hand and seal of the Collector, stating the particulars mentioned in the section, cancel the decree or order complained of so far as it concerns the said watan or any part thereof. The only objection against the validity of the certificate is that it has been addressed to a wrong court. Since we have overruled that objection it follows that that portion of the decree which concerns the watan properties must be cancelled.

In the result the petition is allowed and the decree in question in so far as it purports to operate on or include any right to the office of Patilki and watan lands attached thereto at Kirtgeri as enumerated in the certificate is cancelled. Under the circumstances of this case there will be no order as to costs.

Petition allowed.

THE DELHI CLOTH AND GENERAL

MILLS LTD. v.

KUSHAL BHAN (P. B. GAJENDRAGADKAR and K. N. WANCHOO, JJ.)

Industrial, Dispute-Dismissal of employees by enquiry committee pending trial in Criminal Court-Subsequent acquittal of the employee-Jurisdiction of Tribunal, to refuse approval of dismissal- Industrial Disputes Act, r947 (XIV of r947), s. 33(2), proviso.

The appellant company served a charge-sheet on the respondent who was one of its employees alleging that he had stolen the cycle of the company's Head Clerk, A criminal case relating

March xo.

YELLAPPAGOUDA SHANKARGOUDA PATIL

BASANGOUDA SHIDDANGOUDA PATIL

P. B. GAJENDRAGADKAR

ss. 5, 8

Arts. 374(2)

High Court of Bombay

The trial court decreed
the suit but the High Court of Bombay reversed that decree in appeal.

ss. 5 and 8

Arts. 374(2)

G. K. Daphtary

Shiddangoudu Patil B. R. L. Iyengar

K. R. Bengeri

A. G. Ratnaparkhi

Gajendragadkar

GAJENDRAGADKAR

s. 10

Bombay Hereditary Offices Act, 1874

Kirtgeri

Gadag

s. 23

s. 10

Shiddangouda

November 25, 1949

ss. 7, 10, 11, 13, 24, 25 and 36

s. 10

Civil Judge, Senior Division, Dharwar

Kirtgeri

Bombay High Court

s. 10

Dharwar

s. 10

January 13, 195

Gadag Division

Bombay High Conrt

S.C.R. SUPREME COURT RE£0RTS 225

Section 2

Jurisdiction Act, 1949

October 10, 1949

ShiddangoudaPatil

India

Section 4(b)

s. 2

Section 5

Section 8

Art. 374

Art. 135

Art. 374(2)

Supreme Court

Yellappagouda

S Shankargouda Patil

Art. 374(2)

Basangouda

Shiddangouda Patil

Art. 374(2)

Art. 135

Parliament

Art. 133

Art. 134

Art. 135

s. 10

Section 10

s. 23

K. N. WANCHOO

Industrial Disputes Act

s. 33(2)


...

3 S.C.R. SUPREME COURT REPORTS 227

cancel. the decree in regard to the properties covered x960 by the certificate. Section 10 provides, inter alia, " 11 d h h . h 11 h

C JI h b , e appagou a t at w en it s a appear to t e o ector t at y ShankargoudaPatil virtue of, or in execution of, a decree or order of any v. court any watan or any part thereof, or any of the Basangouda profits thereof, recorded as such in the revenue records Shiddangouda Patil or registered under this Act, and assigned under s. 23 G . - as remuneration of an officiator has or have, after the aJendragadkar f . . date of this Act coming into force, passed or may pass without the sanction of the State Government into the ownership or beneficial possession of any person other than the officiator for the time being, the court shall, on receipt of a certificate under the hand and seal of the Collector, stating the particulars mentioned in the section, cancel the decree or order complained of so far as it concerns the said watan or any part thereof. The only objection against the validity of the certificate is that it has been addressed to a wrong court. Since we have overruled that objection it follows that that portion of the decree which concerns the watan properties must be cancelled.

In the result the petition is allowed and the decree in question in so far as it purports to operate on or include any right to the office of Patilki and watan lands attached thereto at Kirtgeri as enumerated in the certificate is cancelled. Under the circumstances of this case there will be no order as to costs.

Petition allowed.

THE DELHI CLOTH AND GENERAL

MILLS LTD. v.

KUSHAL BHAN (P. B. GAJENDRAGADKAR and K. N. WANCHOO, JJ.)

Industrial, Dispute-Dismissal of employees by enquiry committee pending trial in Criminal Court-Subsequent acquittal of the employee-Jurisdiction of Tribunal, to refuse approval of dismissal- Industrial Disputes Act, r947 (XIV of r947), s. 33(2), proviso.

The appellant company served a charge-sheet on the respondent who was one of its employees alleging that he had stolen the cycle of the company's Head Clerk, A criminal case relating

March xo.

r960 to the theft was pending against him then. He was asked to sho\v cause \vhy he should not be dismissed for misconduct, and Delhi Cloth & as his explanation was unsatisfactory a certain date \Vas fixed for General Mills Led. enquiry. The respondent appeared before the enquiry committee v. but refused to participate in the enquiry by answering questions Kushal Bhan put to him as he did not want to produce any defence till the matter was decided by the Court. The company, however, after completing the enquiry directed the dismissal of the respondent on the ground that misconduct had been proved against him.

The company thereafter made an application under s. 33(2) of the Industrial Disputes Act to the Industrial Tribunal for approval of the disciplinary action taken against the respondent.

In the meantime the respondent was acquitted by the Criminal Court.

The judgment of the Criminal Court was produced before the tribunal which refused to approve the order of dismissal of the respondent. On appeal by the company by special leave : Held, that the principles of natural justice do not require that an employer must wait for the decision of the Criminal Trial Court before taking disciplinary action against an employee.

Shri Bi1nal Kanta Mukherjee v. Messrs. N ewsrrian' s Printing Works, (r956) L.A.C. r88, approved.

If a case is of a grave nature involving questions of fact and law which are not simple it would be advisable for the employer to await the decision of the Criminal Trial Court but in a simple case like the present the tribunal erred in not granting approval under s. 33(2) of the Industrial Disputes Act.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 88 of 1959.

Appeal by special leave from the judgment and order dated May 6, 1958, of the Industrial Tribunal, Delhi, in 0. P. No. 54 of 1958.

M. C. Setalvad, Attorney-General for India, S. N.

Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the appellant.

Janardan Sharma, for the respondent.

1960. March 10. The Judgment of the Court was delivered by

Wanchoo J.

W ANCHOO, J.-This is an appeal by special leave in an industrial matter. The appellant is a company carrying on the manufacture of textiles. The respondent Kushal Bhan was in the employ of the company as a peon. It appears tha.t the cycle of Ram Chandra, Head Clerk of the Folding Department was stolen on August 24, 1957. The matter was reported to the police. Sometime later, the cycle was recovered from the railway station cycle stand at the instance of the respondent who took the police there and picked out

-I

the stolen cycle from among 50/60 cycles standing z960 there. This matter was apparently brought to the D lh' cz h notice of the company in October 1957 and thereupon Gene:a/.u;~; s 'i.'ta. a charge-sheet was served on the respondent to the v. effect that he had stolen the cycle of Ram Chandra, Kushal Bhan Head Clerk, that it had been recovered at his instance and that a criminal case was pending against him with Wanchoo J. the police.

He was asked to show cause why he should not be dismissed for misconduct. The respondent submitted his explanation on October 13, 1957.

As his explanation was unsatisfactory, November 14, 1957, was fixed for enquiry. The respondent appeared before the enquiry committee but stated that as the case was pending against him, he did not want to produce any defence till the matter was decided by the court. He further stated that he did not want to take part in the enquiry and was not prepared to give any answers to questions put to him. When questions were put to him at the enquiry he refused to answer them and eventually he left the place. The company, however, completed the enquiry and directed the dismissal of the respondent on the ground that the misconduct had been proved against him. Thereafter an application was made under s. 33(2) of the Industrial Disputes Act, No. 14 of 1947, by the company to t.he tribunal for approval of the action taken against the respondent. The matter came before the tribunal on May 6, 1958. In the meantime, the respondent had been acquitted by the criminal court on April 8, 1958, on the ground that the case against him was not free from doubt. The copy of the judgme_nt of the criminal court was produced before the tribunal and it refused to approve the order of dismissal. The company thereupon applied for special leave to this Court resulting in the present appeal.

The main contention on behalf of the appellantcompany is that the company was not bound to wait for the result of the trial in the criminal court and that it could, and did, hold a fair enquiry against the respondent, and if the respondent refused to partici pate in it and left the place where the enquiry was being held, the company could do no more thn to complete it and come to such conclusion as was

z960 possible on the evidence before it. Learned counsel -. - for the respondent, on the other hand, urges that Dell" Cfo; h 'f: d principles of natural justice require that an employer General Mil' ' • should wait at least for the decision of the criminal v.

Ku, hal Bhan trial court before taking disciplinary action, and that inasmuch as the employer did not do so in this case Wanchoo J. the employee was justified in not taking part in the disciplinary proceedings which dealt with the very same matter which was the subject-matter of trial in the criminal court.

It is true that very often employers stay enquiries pending the decision of the criminal trial courts and that is fair; but we cannot say that principles of natural justice require that an employer must wait for the decision at least of the criminal trial court before taking action against an employee. In Shri Bimal Kanta Mukherjee v. Messrs. Newsman's Printing Works('), this was the view taken by the Labour Appellate Tribunal. We may, however, add that if the case is of a grave nature or involves questions of fact or law, which are not simple, it would be advisable for the employer to await the decision of the trial court, so that the defence of the employee in the criminal case may not be prejudiced.

The present, however, is a case of a very simple nature and so the employer cannot be blamed for the course adopted by him. In the circumstances, there was in our opinion no failure of natural justice. in this case and if the respondent did not choose to take part in the enquiry no fault can be found with that enquiry. We are of opinion that this was a case in which the tribunal patently erred in not granting approval under s. 33(2) of the Industrial Disputes Act. Besides it is apparent that in making the order under appeal, the tribunal has completely lost sight of the limits of its jurisdiction under s. 33(2).

We therefore allow the appeal and setting aside the order of the tribunal grant approval to the order of the appellant dismissing the respondent. In the circumstances we pass no order as to costs.

Appeal allowed.

\1) \1956) L.A.C. 188.

Section 10

s. 23

Kirtgeri

KUSHAL BHAN

K. N. WANCHOO

Industrial Disputes Act

s. 33(2)

Kushal Bhan

s. 33(2)

Industrial Disputes Act

s. 33(2)

Industrial Disputes Act

CIVIL APPELLATE JURISDICTION

Industrial Tribunal, Delhi

M. C. Setalvad

S. N.

Andley

J. B. Dadachanji

Rameshwar Nath

P. L. Vohra

Janardan Sharma

Wanchoo

W ANCHOO

Kushal Bhan

Ram Chandra

August 24, 1957

October 13, 1957

November 14, 1957

s. 33(2)

Industrial Disputes Act

May 6, 1958

April 8, 1958

s. 33(2)

Industrial Disputes Act

s. 33(2)


3 S.C.R. SUPREME COURT REPORTS 24:5

beside the point. It was wholly immaterial whether profits were made or losses were incurred in the year, if the employers continued to retain the labour force so as to be available for the days on which the Mills worked.

In our opinion, the Appellate Tribunal after giving a finding that a claim for compensation equal to half the wages and dearness allowances was just and proper, erred in holding that it was not admissible because of the decision of this Court in the Muir Mills case (1).

That case had no application to the facts here.

The Appellate Tribunal also erred in declining to grant compensation on the ground that since bonus was granted the claim for compensation could not be entertained. The case of badli workers does not appear. to have been separately raised, and we see no reason not to award them compensation; but payment of such compensation will be subject to the same condition, as was impose(! by the Industrial Court.

In the result, the appeal will be allowed, the order of the Appellate Tribunal set aside and the order of the Industrial Court restored. The respondents shall bear the costs here and in the Tribunals below.

Appeal allowed.

PRAMATHA NATH MUKHERJEE v . .

THE STATE OF WEST BENGAL (K. c. DAS GUPTAandJ. c. SHAH, JJ.)

Criminal Trial-Accu.sed discharged of offence triable as warrant case-If can be tried for any other triable as summons case on facts

aisdosed in the Police Report-Cognizance by Magistrate-Code of Criminal Procedure (V of I898), ss. 25IA(2), I90(I)(b).

A Criminal case was instituted in the c, ourt of a Magistrate at Calcutta against the appellant under s. 332 of the Indian Penal Code for voluntarily causing hurt to the Bailiff.of Calcutta Corporation and another. After hearing both sides the Magistrate was of the opinion that the charge under s. 332 could not be sustained but as there was evidence to establish a prima f acie case under s. 323 of the Indian Penal Code, he charged the appellant under that section. The appellant pleaded not guilty and (I) [I955) I S, C.R. 99r. 32

Rashtriya Mill Mazdoor Sangh

A po/lo Mills Ltd.

Hidayatullah ].

Mtirth II.

z960

Pf'amat ha Nath

Mukherjf!e

State of JV est Bengal

Das Gupta. ].

claimed to be tried and submitted that in view of the prov1s10ns of s. 25rA(2) of the Criminal Procedure Code, he should have been acquitted and the trial for the offence under s. 323, Indian Penal Code, could not be proceeded with. The Magistrate rejected the contention and convicted the appellant.

On the question \Vhether a magistrate after making an order of discharge under s. 25rA(2) of the Criminal Procedure Code in respect of a charge of an offence triable as a \varrant case can. still proceed to try the accused for another offence, which would be made out from the police report: Held, that an order of discharge made by the Magistrate in exercise of the powers under sub-s. (2) of s. 25rA, does not mean the discharge of the accused in respect of all the offences, which the facts mentioned in the police report would make out. The order of discharge being only in respect of the offences triable under Chapter XXI does not affect in any way the position that charges of offences triable under Chapter XX also are contained in the police report. In the instant case even after the order of discharge was made in respect of the offence under s. 332 of the Indian Penal Code, the minor offence under s. 323 of which the Magistrate had also taken cognizance remained for trial as there was no indication to the contrary. That being an offence triable under Chapter XX of the Code of Criminal procedure the Magistrate rightly followed the procedure under Chapter XX.

When a Magistrate takes cognizance under s. r9o(r)(b) of the Criminal Procedure Code, he takes cognizance of all offences, constituted by the facts reported by the Police Officer and not of some only out of those offences.

CRIMINAL

APPELLATE JURISDICTION: Criminal Appeal No. 116 of 1958.

Appeal from the judgment and order dated February 28, 1957, of the Calcutta High Court in Criminal Revision No. 1158of1956, arising out of the judgment and order dated June 26, 1956, of the Additional Chief Presidency Magistrate, Calcutta, in G. R. Case No. 284 of 1956.

K. R. Chaudhury, for the appellant.

B. Sen, P. K. Ghose for P. K. Bose, for the respondent.

1960. March 11. The Judgment of the Court was delivered by

DAS GUPTA, J.-The question raised in this appeal is whetller a Magistrate after making an order of discharge under s. 251A(2), Cr. P. C., in respect of a charge for an offence triable as a warrant case can still procc0d to try the accused for another offence disclosed by the police report and triable as a summons case.

...

The case against the appellant was instituted on a police report which charged him with an offence under s. 332 of the I.P.C. for "voluntarily causing hurt by means of a piece of wood to the complainant, Sisir Kumar Bose, Bailiff of Calcutta Corporation and Chandra Sekhar Bhattacharjee, an employee of Calcutta Corporation with the intent to prevent or deter those persons from discharging their duties as public servants." The Magistrate after satif'\fying himself that the documents referred to ins. 173 Or. P. C. had been furnished to the accused examined the documents and was of opinion after hearing counsel of both parties that the charge under s. 332 I.P.C. could not be sustained. He_ was however of opinion that there was evidence to establish a prima facie case under s. 323 I.P.C. He accordingly charged the accused under s. 323 I.P.C. examined h.im and when he pleaded not guilty and claimed to be tried posted the case for the examination of prosecution witnesses. On the next hearing date a submission was made on behalf of the accused that in view of the provisions of s. 251(2) Cr. P. 0. the accused should have . been acquitted altogether and no trial for the offence under s. 323 I.P.C. could be proceeded with.

The Magistrate rejected this contention and directed that the trial of the accused for an offence under s. 323 I.P.C. would proceed under Chapter XX. That procedure was followed and ultimately the accused was convicted under ~· 323 I.P.C. and sentenced to pay a fine of rupees fifty only and in default to undergo rigorous imprisonment for one month. The appellant's application under s. 439 Cr. P.O. for revision of this order was rejected by the High Court. The lear11ed Judge was of opinion that "if the Magistrate finds on the materials before him that a summons case offence has been committed by the accused, he has, the right and duty to proceed in accordance with the provisions of Chapter XX of the Cr. P.O. The word "discharge" used in sub-s. (2) of s. 251A Cr. P.'O. must be read as having reference to a discharge in relation to the specific offence upon which the accused has. been charge-sheeted. It does not necessarily mean that the accused cannot be proceeded agai:rist for some other

Pramatha Nath Mukherjee v.

State of West Bengal

Das Gupta ].

z960

Pramatha Nath

Mukherje•

State of West Bengal

Das Gupta j.

offence, say a summons case offence, under Chapter XX Cr. P.C." in spite of the discharge under s. 251A(2). The present appeal is filed on the strength of a certificate granted by the High Court under A1t.

134(l)(c) of the Constitution.

The relevant provisions of ss. 251 and 251A of the Code of Criminal Procedure are in these words :-

" S. 251 :-In the trial of warrant-cases by Magistrates, the. Magistrates shall:- .

(a) in any case instituted on a police-report, follow the procedure specified in s. 251A; and

(b) in any other case, follow the procedure specified in the other provisions of this Chapter.

S. 251A. (1) .................................................. .

(2) If, upon consideration of all the documents referred to in s. 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge him.

(3) If, upon such documents being considered, such examination, if any, being made and the prosecution and the accused being given an opportunity of being heard, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try, and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused." It is quite clear that in deciding w hetber action shall be taken by him under sub-s. (2) or sub-s. (3) of s. 251A the Magistrate has to form an opinion whether there is any ground for presuming that an accused has committed an offence triable under Chapter XXI or there is no such ground. When his opinion is that there is ground for a presumption that the accused has committed an offence punishable under Chapter XXI which the Magistrate is competent to try and which could be adequately punished by him he shall proceed with the trial. But when he forms the opinion that there is no ground for presuming that an offeuce

punishable under Chapter XXI has been committed by the accused his duty is to discharge the accused.

The real question is, when an order of discharge is made by the Magistrate in exercise of the powers under sub-s. (2) of s. 251A is the discharge in respect of all the offences which the facts mentioned in the

- police report would make out ? The answer must be in the negative. When the Magistrate makes an order under s. 251A(2) he does so as, after ha;.ing considered whether the charge made in the police report of the offences triable under Chapter XXI is groundless he is of opinion that the charge in respect of such offence is groundless ; but the order of discharge has reference only -to such offences mentioned in the charge-sheet as are triable under Chapter XXL It very often happens that the facts mentioned in the charge-sheet constitute one or more offences triable under <'.Jhapter XXI as warrant cases and also one or more other offences triable under Chapter XX. The order of discharge being only in respect of the offences triable under .Chapter XXI does not affect in any way the position that charges of offences triable under Chapter XX also are contained in the police report .

. But, says the learned counsel for the appellant, the - Magistrate cannot proceed with the trial of these other offences triable under Chapter XX because no cognizance has been taken of such other offences.

He contends that only after a fresh complaint has been made in respect of these offences triable under Chapter XX that the Magistrate can take cognizance and then proceed to try them after following the procedure prescribed by law. This argument ignores the fact that when a Magistrate takes cognizance of offences under s. 190(l)(b) Cr. P.C., he takes cognizance of all offences constituted by the facts reported by the police officer and not only-of some of such offences.

For example, if the facts mentioned_ in the police report constitute an offence under s. 379 I.P.C. as also one under s. 426 I.P.C. the Magistrate can take cognizance not only of the offence under s. 379 but also of the offence under s. 426. In the present case the police report stated facts which constituted an offence under s. 332 I.P.C. but these facts necessarily consti-

Pramatha Nath

Mukherjee

Sta/8 of Wsst

Bengal

Das Gupta].

Pramatha Nath

Mul1herjee

State of West Bengal

Dos Gupta ].

Marth z4.

tute also a minor offence under s. 323 I.P.C. The Magistrate when he took cognizance under s. 190(l)(b)

Cr. P.O. of the offence under s. 332 I.P.C. cannot but have taken cognizance alHo ofthe minor offence under s. 323 I.P.C. Consequently, even after the order of discharge was made in respect of the offence under s. 332 I.P.C. the minor offence under s. 323 of which he had also taken cognizance remained for trial as there was no itfdication to the contrary. That being an offence triable under Chapter XX Cr. C.P. the Magistrate rightly followed the procedure under Chapter XX.

The appeal is accordingly dismissed.

Appeal dismissed.

IN RE: THE BERUBARI UNION AND

EXCHANGE OF ENOLA VES

REFERENCE UNDER ARTICLE 143(1) OF

THE CONSTITUTION OF INDIA

(B. P. SINHA, 0. J., s. K. DAS, P. B. GAJENDRA-

GADKAR, A. K. SARKAR, K. SuBBA RAo,

'l\L HIDAYATULLAH, K. 0. DAS

GUPTA and J. C. SHAH, JJ.)

President's Reference-Inda-Pakistan Agreement, r958-Division of Berubari Union and exchange of Cooch-Behar Enclaves-If involve cession of territory-Implementation-Amendment of Constitution-Constitution of India, Arts. I, 3, 368.

As a result of the Radcliffe Award dated August 12, 1947, Berubari Union No. 12 fell within West.Bengal and was treated as such by the Constitution which came into force on January 26,

1950, and has since been governed on that basis. Certain disputes arose between India and Pakistan subsequent to the Rad- .cJiffe Award but Berubari was not in issue before the Bagge

Commission set up by agreement between the parties to decide those disputes.

That commission made its award on January 26,

1950. Pakistan raised the question of Berubari for the first time in 1952 alleging that under the Radcliffe Award it should form part of East Bengal and was wrongly included in West Bengal.

On August 28, 1949, the Ruler of the State of Cooch-Behar

Muir Mills

PRAMATHA NATH MUKHERJEE

Code of Criminal Procedure

ss. 25I

Calcutta

s. 332

Indian Penal Code

s. 332

s. 323

Indian Penal Code

Rashtriya

State of JV est Bengal

Das Gupta

s. 25

s. 323

Indian Penal Code

s. 25

s. 25

s. 332

Indian Penal Code

s. 323

Code of Criminal procedure

K. R. Chaudhury

B. Sen

P. K. Ghose

P. K. Bose

DAS GUPTA

s. 251A(2)

s. 332

I.P.C

Sisir Kumar Bose

Calcutta Corporation

Chandra Sekhar Bhattacharjee

s. 332

I.P.C

s. 323

I.P.C

s. 323

I.P.C

s. 251(2)

s. 323

I.P.C

s. 323

I.P.C

I.P.C

s. 439

s. 251A

Pramatha Nath

State of West Bengal

Das Gupta

s. 251A(2)

ss. 251 and 251A

Code of Criminal Procedure

S. 251

s. 251A

S. 251A

s. 173

s. 251A

s. 251A

s. 251A(2)

s. 190(l)(b)

s. 379

I.P.C

s. 426

I.P.C

s. 379

s. 426

s. 332

I.P.C

Pramatha Nath

Mukherjee

Pramatha Nath

s. 323

I.P.C

s. 190(l)(b)

s. 332

I.P.C

s. 323

I.P.C

s. 332

I.P.C

s. 323

BERUBARI UNION

B. P. SINHA

K. DAS

P. B. GAJENDRA-

A. K. SARKAR

K. SuBBA RAo

. DAS

GUPTA

J. C. SHAH

Constitution of India

August 12, 1947

January 26,

1950

India

Pakistan

Berubari

East Bengal

West Bengal

August 28, 1949

State of Cooch-Behar