....

3 S.C.R. SUPREME COURT REPORTS 423

were all decisions of the same Court, and arose in different circumstances. In two of them, the question was wide enough to take in a fine of reasoning not. adopted by the Tribunal, and in the third, the question was widened by deleting a reference to a section, when another section was also material. They were not cases where the issues of law as decided by the Tribunal and the High Court were entirely different, which is the case here. The Punjab High Court has taken a contrary view in Mash Trading Co. v. Commissioner of Income-tax (1 ).

For the reasons given above, we are of opinion that theHigh Court exceeded its jurisdiction in going outside the point of law decided by the Tribunal and deciding a different point of law. The order of the High Court will, therefore, be set aside, and the case -will be remitted to the High Court to decide the question framed by the Tribunal. In view of the fact that both the assessee and the Commissioner pointed out the anomaly to the : High Court and the question was reframed in spite of this, the costs of this appeal shall be costs in the reference to be heard by the High Court, and will abide the result.

Appeal allowed.

Case remitted.

M/S. BURN & CO. LTD. & OTHERS v.

THEIR EMPLOYEES. (P. B. GAJENDRAGADKAR, K. N. W ANCHOO and K. c. DAS GUPTA, JJ.) Industrial Dispute-Incentive bonus-Scheme-Eclusion of clerical and subordinate staff-Propriety-Power of Industrial Tribunal.

There can be no doubt from the point of view of Economics that the clerical and subordinate staff of an industry like its' manual workers contribute to its production and there can, therefore, be no reason for exciuding them wholly from the benefits of a scheme of incentive bonus.

The fact that the clerical staff are paid dearness allowance at a higher scale can be no reason for their exclusion. '

(1) [1956] 30 I.T.R. 388.

Kusumben. .D. Mahadevia v.

Commissioner of

Income-tax,

Bombay

H idayatullah J.

r960

March30.

r960 Where, as in the instant case, the company had already introduced a scheme of incentive bonus for the inajority of its Burn & Co. Ltd. workmen, there could be no reason why the Industrial Tribunal

"· should not be able to extend that scheme to the clerical and Their Employees subordinate staff.

M/s. Titaghur Paper Mills Co. Ltd. v. Their Workmen, [1959] Supp. z S.C.R. rorz, considered.

CIVIL APPELLATE JumsmoTION: Civil Appeals Nos. 195 and 196 of 1959.

Appeals by special leave from the Award dated April 15, 1957, of the Third Industrial Tribunal, West Bengal, in Case No. VIII-7 of 1956.

B. Sen, P. K. Ghakravarty and B. N. Ghosh, for the appellants (in C. A. No. 195 of 59) and respondents (in C. A. No. 196 of 59).

N. G. Chatterjee, D. L. Sen Gupta and B. P. Maheshwari, for the respondents (in C. A. No. 195 of 59) and appellants (in C. A. No. 196 of 59). •

1960. March 30. Tho Judgment of the Court was delivered by Wanchoo ].

WANCHOO, J.-These are two appeals by special leave against the same award of the Third Industrial Tribunal, West Bengal and shall be disposed of by this judgment.

Appeal No. 195 is by Messrs. Burn and Co. Limited (hereinafter called the company) and Appeal No. 196 is by t.he workmen of Messrs. Burn and Co. Limited (hereinafter called the workmen).

There were disputes between the company and the workmen on various matters, which were referred to the tribunal for adjudication. Of these disputes, only two now survive in the two appeals. The company's appeal is with respect to that part of the award which deals with incentive bonus to the clerical and subordinate staff while the workmen's appeal is with respect to that part of the award which deals with the ca8h benefit of Annas eight per head per working day for the period the canteen was not in operation.

We shall first take up the company's appeal. The company has introduced incentive bonus for manual workers including Sarkars and Checkers but there is no provision for inceJ!tive bonus to the clerical and subordinate staff.

The workmen therefore claimed that these two categories should also be given incel)- tive bonus like the manual workers and pointed out

' A

that in other concerns this was done. The company z96o resisted the claim on two grounds: (i) that the clerical Burn & Co. Ltd. staff got what is known as the Bengal Chamber of v.

Commerce dearness allowance, which is higher than Their Employees the dearness allowance paid to the manual workers and (ii) that the clerical staff and the subordinate Wanchoo J. staff do not actually produce anything and if they are given incentive bonus it will mean that they would be paid on the production of others, namely, the manual workers.

The tribunal was of the view that the fact that the clerks got the Bengal Chamber of Commerce dearness allowance was no reason for their .total exclusion from the benefit of the incentive bonus scheme. It also pointed out that the subordinate staff did not get the Bengal Chamber of Commerce dearness allowance and there was no difference between their dearness allowance and the dearness allowance of the manual workers. Further the tribunal was conscious of the fact that the clerical staff and the subordinate staff do not directly produce goods but that in its opinion was no }ustification for their total exclusion, particularly when other comparable concerns like the Indian Iron 1 and Steel Co. Ltd. at Burnpur, Bridge and Roof Co. (India) Limited, Howrah, and Tatas were paying incentive bonus to the clerical and subordinate staff also. It therefore ordered that the company should extend the scheme of incentive bonus to the clerical and subordinate staff also and lay down the rates and conditions for the same.

The main contention of the company before us is that as the clerical staff and the subordinate staff have no part in actual production they should not be given any incentive bonus, particularly as their work does not increase at all because of the increased production. It is, however, difficult to accept that there will be no increase in the work of the clerical staff in particular and also of the subordinate staff because of higher production, though it may be accepted that the increase 'may not be in proportion to the increase of production. It is also true that the clerical staff and the subordinate staff do not directly produce goods like manual workers arid thatmy be a reason

Bwrn b Co. Ltd. v.

Their Employees

TVanchoo ].

for treating them somewhat differently in the matter of incentive bonus and that is what the tribunal seems to have done, for it has directed the company to extend the scheme of incentive bonus to the clerical and subordinate staff and to lay down the rates and conditions of the same and has not said that exactly the same rates and conditions should apply to the clerical and subordinate staff as apply to the manual workers.

But there can be nu doubt that economically speaking the clerical staff and. the subordinate staff also take part in the production and there is no reason therefore for excluding them altogether from the scheme of incentive bonus. Besides, as the tribunal has pointed out, in other comparable concerns incentive bonus is being paid to the clerical and subordinate staff.

The fact that dearness allowance was paid to the clerical staff at a higher scale is also, in our opinion, no reason for depriving them altogether of the benefits of the incentive bonus scheme.

It is also urged on behalf of the company that the introduction of incentive bonus is a management function and the tribunal should not impose it on the management and reference in this connection has been made to Messrs. Titaghur Paper Mills Go. Ltd. v. Their Workmen (1). In the present case, however, the incentive bonus scheme has already been introduced by the company for the major part of its workmen and all that is now asked for is that the benefit of the scheme should be extended to the remainder of the workmen.

This prayer is, in our opinion, very different from asking a tribunal to impose an incentive bonus scheme for the first time in a concern.

We can see no reason why where an incentive bonus is in force in a concern for the majority of its workmen, the tribunal should not be able to extend the same to the remainder of the workmen.

We therefore see no reason to interfere with the order of the tribunal in this behalf.

Turning now to the appeal of the workmen with respect to eight a.nnas tiffin allowance during the period the canteen was not working, it is enough to say that this matter was examined at length by the

\I} [1959] Supp, 2 S.C.R. 101._

...

tribunal. It has dealt with the history relating to this tiffin allowance and exhaustively considered all the points raised on behalf of the.workmen. Nothing has been brought to our notice which would induce us to interfere with the considered order of the tribunal in this behalf.

All the points that Srl Chatterjee has raised on behalf of the workmen have been dealt with by the tribunal and the conclusion it has reached is that having regard to the circumstances, the workmen were not eligible to the tiffin allowance of annas eight per head per working day. All that we need say is that the correspondence between the workmen and the company shows that though the workmen were keen on the provision of a canteen before the tiffin allowance was granted by the award dated July 24, 1953, their keenness disappeared after the award. The company seems to have taken steps even before the award to start a canteen and pursued the matter vigorously after the award; but the workmen started objecting to the arrangements made and some of the objections were fantastic. It seems that having been given the tiffin allowance they preferred to have it rather than go to the canteen. In the circumstances we are of opinion that the conclusionof the tribunal is correct and there is no reason for interference.

The appeals are hereby dismissed, but in the circumstances we pass no ord_er as to costs. ·

Appeals dismissed.

THE STATE OF UTTAR PRADESH • v.

KHUSHI RAM ( JAFER IMAM and A. K. SARKAR, JJ.) Criminal Trial-Magistrate empowered to impose sentence provided-Commitment under impression of not being so empowered- Trial by Court of Session on such commitment-Validity-Prevention of Food Adulteration Act, I954 (37 of r954), ss. 7, I6 and 2I.-Code of Criminal Procedure, r898 (V of r898), ss. 32, 207 and 347.

The respondent was prosecuted for offences under s. 7 of the Prevention of Food Adulteration Act, 1954. The Magistrate found the offences proved and he further found that the respondeut had

Burn 0- Co. Ltd.

Their Employees

Wanchoo ].

April I.

Punjab High Court

M/S. BURN & CO. LTD. & OTHERS

THEIR EMPLOYEES. (P. B. GAJENDRAGADKAR

K. c. DAS GUPTA, JJ.

B. Sen

P. K. Ghakravarty

B. N. Ghosh

N. G. Chatterjee

D. L. Sen Gupta

B. P. Maheshwari

Wanchoo

WANCHOO

Third Industrial Tribunal, West Bengal

Burn and Co. Limited

clerical Burn & Co. Ltd.

Indian Iron 1 and Steel Co. Ltd.

Burnpur

Bridge and Roof Co. (India) Limited

Howrah

Tatas

Srl Chatterjee

July 24, 1953

STATE OF UTTAR PRADESH

KHUSHI RAM

JAFER IMAM

A. K. SARKAR

ss. 7

Code of Criminal Procedure

ss. 32, 207 and 347

s. 7


...

3 S.C.R. SUPREME COURT REPORTS 427

tribunal. It has dealt with the history relating to this tiffin allowance and exhaustively considered all the points raised on behalf of the.workmen. Nothing has been brought to our notice which would induce us to interfere with the considered order of the tribunal in this behalf.

All the points that Srl Chatterjee has raised on behalf of the workmen have been dealt with by the tribunal and the conclusion it has reached is that having regard to the circumstances, the workmen were not eligible to the tiffin allowance of annas eight per head per working day. All that we need say is that the correspondence between the workmen and the company shows that though the workmen were keen on the provision of a canteen before the tiffin allowance was granted by the award dated July 24, 1953, their keenness disappeared after the award. The company seems to have taken steps even before the award to start a canteen and pursued the matter vigorously after the award; but the workmen started objecting to the arrangements made and some of the objections were fantastic. It seems that having been given the tiffin allowance they preferred to have it rather than go to the canteen. In the circumstances we are of opinion that the conclusionof the tribunal is correct and there is no reason for interference.

The appeals are hereby dismissed, but in the circumstances we pass no ord_er as to costs. ·

Appeals dismissed.

THE STATE OF UTTAR PRADESH • v.

KHUSHI RAM ( JAFER IMAM and A. K. SARKAR, JJ.) Criminal Trial-Magistrate empowered to impose sentence provided-Commitment under impression of not being so empowered- Trial by Court of Session on such commitment-Validity-Prevention of Food Adulteration Act, I954 (37 of r954), ss. 7, I6 and 2I.-Code of Criminal Procedure, r898 (V of r898), ss. 32, 207 and 347.

The respondent was prosecuted for offences under s. 7 of the Prevention of Food Adulteration Act, 1954. The Magistrate found the offences proved and he further found that the respondeut had

Burn 0- Co. Ltd.

Their Employees

Wanchoo ].

April I.

State of Uttar Pradesh v. /( hushi Rani

Sarkar].

428 SUPREME COUltT REPORTS [1960]

committed the offence for the third time for which he was liable to be awarded a sentence of imprisonment for not less than two years and to a fine of not less than Rs. 3,000. Section zr of the Act specifically empowered the Magistrate to impose this sentence, but as he was under the impression that s. 32 of the Code of Criminal Procedure limited his power to impose sentences he committed the respondent to stand his trial before the Court of Session.

The Court of Session found the respondent guilty and convicted him. On appeal the High Court held that the Magistrate had no power to commit and that the Sessions Judge had no jurisdiction to try the case, set aside the conviction and sentence and remanded the case for re-trial to the Magistrate : Held, that the commitment was not illegal and that the Sessions Judge had jurisdiction to try the case. Section zr of the Act vvas not a disabling provision and it did not make commitment by a Magistrate competent to award the full sentence prescribed by the Act, a nullity; it did not take away the power of the Magistrate to commit. The Magistrate had both the power and the territorial jurisdiction to commit, and the comn1itment was good.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 160 of 1959.

Appeal by special leave from the judgment and order dated October 30, 1958, of the Allahabad High Court (Lucknow Bench) at Lucknow in Criminal Appeal No. 105of1957, arising out of the judgment and order dated February 12, 1957, of the Second Temporary Civil and Sessions Judge at Barabanki in Criminal Sessions Trial No. 102 of 1956.

G. 0. Mathur and 0. P. Lal, for the appellant.

The respondent did not appear.

1960. April 1.

The Judgment of the Court was delivered by SARKAR, J.-The respondent was prosecuted before the Judicial Magistrate, Barabanki, for offences under els. (i) and (iii) of s. 7 of the Prevention of Food Adulteration Act, 1954, for selling adulterated milk and for selling milk without a licence.

The learned Magistrate found that the offences had been proved and further that, the respondent had committed the offences for the third time.

Under cl. (a) (iii) of subsec. (i) of s. 16 of the Act, in the absence of special and adequate reasons to the contrary, for a third offence the imprisonment to be awarded cannot be for less than two years and the fine to be imposed not less than three thoueand rupees.

Section 32 of the

Criminal Procedure Code however provides that a Magistrate of the first class shall not have power to impose sentence of fine exceeding rupees two thou- .sand. Under the impression that bis power as a Magistrate of the first class to impose sentence was limited by s. 32 of the Code the learned Judicial Magistrate committed the respondent to stand his trial before the Court of Session, presumably acting under s. 34 7 of the Code of Criminal Procedure.

The respondent was thereupon tried by a learned Sessions Judge of Barabanki who found him guilty of the offences with which he had been charged. The learned Sessions Judge however came to the conclusion that the offences had been commited by the respondent for the second time and not the third. He observed that the learned Judicial Magistrate was competent to award the minimum punishment prescribed by the Act for a second offence and should not have committed the case to the Court of Session at all. He however convicted the respondent and awarded the minimum sentence prescribed by the Act for a second offence, namely, rigorous imprisonment for one year and a fine of rupees two thousand and, in default, rigorous imprisonment for a further period of six months for each of the offences and directed the sentences of imprisonment to run concurrently.

The respondent then ap_pealed to the High Court at Allahabad. Mulla, J., who heard the appeal pointed out that the learned Judicial Magistrate had overlooked the provisions ofs. 21 of the Act which provides that notwithstanding anything contained in s. 32 of the Code it shall be lawful for a Magistrate of the first class to pass any . sentence authorised by the Act in excess of his powers under s. 32 of the Code. The learned Judge observed that the learned Magistrate was therefore quite competent to award all punishments that the law required and had no reason to commit the respondent to a Court of Session. 'He took the viewthat a Court of Session could try only those cases which were legally and properly committed to it by a, MB.gistra, te a, nd tha, t s. 21 of the Act was not only an enabling provision but also a disabling one., He held that s. 21 of the Act prevented a commitment to

State of Uttar

Pradesh v.

Khushi Ram

Sarkar].

r960

State of Uttar

Pradesh

I< hushi Ra1n

Sarkar].

the Court of Session by a Magistrate of the first class.

He observed, "Where a special Act has made a special provision for punishment to be awarded by a Magistrate irrespective of the limitations placed upon .hi5! powers under the Criminal Procedure Code, it amounts to an abrogation of the general law and the provisions of s. 347 of the Criminal Procedure Code cannot be applied to such a case." In this view of the matter he held that the learned Judicial Magistrate had no power to commit the respondent to the Court of Session for trial and the learned Sessions Judge had no jurisdiction to try t!he case.

He thereupon set aside the order of conviction and the sentence passed against the respondent and remanded the case to the District Magistrate of Barabanki to be transferred by him to the Court of a competent Magistrate for trial and disposal. The State has appealed to this Court against the judgment of Mulla, J.

We are unable to agree with the view of Mulla, J., that the learned Sessions Judge had-no jurisdiction to try the case.

We do not think that s. 21 of the Act is a disabling provision. All that it does is to authorise a Magistrate of the first clas~ to award a sentence beyond the limits prescribed for him under s. 32 of the Code. It does not affect the provisions of ss. 207 and 347 of the Code, nor has it anything to do with the jurisdiction of a Court of Session. The section does not make commitment by a Magistrate competent to award the full sentence prescribed by the Act, a nullity; nor does the section interfere with the jurisdiction of a Court of Session to deal with a matter committed to it in spite of its provisions.

The jurisdiction of a Court of Session depends upon the Code. It has jurisdiction to try .any case which is committed to it. The case against the respondent had been committed to a Court of Session by a Magi-· strate having power to cominit. Further, the Magi- 3trate did not laC<k territorial jurisdiction to commit.

It may be that the Magistrate was competent to try the case and award all punishments prescribed by law.

It is also true that the Magistrate was not compelled to commit the case to a Court of Session.

We are unable to subscribe to the view that a commitment in

...

such circumstances is itself void. Neither do we understand Mulla, J., to take the view that apart from s. 2 L of the Act, the commitment was void because the learned Magistrate could himself have awarded the maximum sentence provided. We have said that s. 21 does not take away the power of the Magistrate if he has such power, to commit, nor affect the jurisdiction of a Court of Session to try a case committed to it by a Magistrate empowered to do so.

Therefore it seems to us that the learned Sessions Judge had full jurisdiction to try the case against the respondent.

In the result we allow the appeal and set aside the order of the High Court. The case will now go back to the High Court to be heard on merits.

Appeal allowed.

N AND LAL MISRA v.

K. L. MISRA

(K. SuBBA RAo and J.C. SHAH, JJ.)

Maintenance-Provisions of s. 488 of the Code of Criminal Procedure-Mandatory-Preliminary enquiry not contemplated- Proceedings under Chapter XXXV I, Code of Criminal Procedure-of civil nature-Question of paternity to be decided by the Magistrate.

The appellant who was a minor filed an application by his mother as his guardian' under s. 488 of the Code of Criminal

Procedure in the Court of the City Magistrate, Allahabad, praying for an order against the respondent, for maintenance alleging that he was his putative father. The Magistrate summarily dismissed the appellant's application without issuing notice to the respondent as required by s. 488, Criminal Procedure Code.

The Court of Session in revision against the Magistrate's order came to the conclusion that it was a fit case in which the Magistrate ought to have issued summons to the respondent and submitted the record to the High Court recommen<ling that the order passed by the Magistrate be set aside and that the Magistrate be ordered to proceed with the application in accordance with law.

The High Court rejected the Sessions Court's reference and refused to certify that the case was a fit one for appeal to the Supreme Court. On appeal by special leave : Held, that the appellant was not given full opportunity to

1istljlish his case in the manner prescribed by law.

State of Uttar

Pradesh

J{hushi Ram

Sarkar].

• April I.

July 24, 1953

THE STATE OF UTTAR PRADESH

KHUSHI R

JAFER IMAM

A. K. SARKAR

ss. 7

Code of Criminal Procedure

ss. 32, 207 and 347

s. 7

s. 32

Code of Criminal Procedure

0. P. Lal

SARKAR

Judicial Magistrate, Barabanki

s. 7

s. 16

Section 32

s. 32

s. 34

Code of Criminal Procedure

Barabanki

High Court at Allahabad

Mulla

s. 32

s. 32

s. 21

s. 21

State of Uttar

Pradesh

s. 347

District Magistrate of Barabanki

s. 21

s. 32

ss. 207 and 347

s. 2

s. 21

N AND LAL MISRA

K. L. MISRA

K. SuBBA RAo

J.C. SHAH

s. 488

Code of Criminal Procedure

Code of Criminal Procedure

s. 488

s. 488

Criminal Procedure Code

Supreme Court

State of Uttar

Pradesh

J{hushi Ram


...

3 S.C.R. SUPREME COURT REPORTS 431

such circumstances is itself void. Neither do we understand Mulla, J., to take the view that apart from s. 2 L of the Act, the commitment was void because the learned Magistrate could himself have awarded the maximum sentence provided. We have said that s. 21 does not take away the power of the Magistrate if he has such power, to commit, nor affect the jurisdiction of a Court of Session to try a case committed to it by a Magistrate empowered to do so.

Therefore it seems to us that the learned Sessions Judge had full jurisdiction to try the case against the respondent.

In the result we allow the appeal and set aside the order of the High Court. The case will now go back to the High Court to be heard on merits.

Appeal allowed.

N AND LAL MISRA v.

K. L. MISRA

(K. SuBBA RAo and J.C. SHAH, JJ.)

Maintenance-Provisions of s. 488 of the Code of Criminal Procedure-Mandatory-Preliminary enquiry not contemplated- Proceedings under Chapter XXXV I, Code of Criminal Procedure-of civil nature-Question of paternity to be decided by the Magistrate.

The appellant who was a minor filed an application by his mother as his guardian' under s. 488 of the Code of Criminal

Procedure in the Court of the City Magistrate, Allahabad, praying for an order against the respondent, for maintenance alleging that he was his putative father. The Magistrate summarily dismissed the appellant's application without issuing notice to the respondent as required by s. 488, Criminal Procedure Code.

The Court of Session in revision against the Magistrate's order came to the conclusion that it was a fit case in which the Magistrate ought to have issued summons to the respondent and submitted the record to the High Court recommen<ling that the order passed by the Magistrate be set aside and that the Magistrate be ordered to proceed with the application in accordance with law.

The High Court rejected the Sessions Court's reference and refused to certify that the case was a fit one for appeal to the Supreme Court. On appeal by special leave : Held, that the appellant was not given full opportunity to

1istljlish his case in the manner prescribed by law.

State of Uttar

Pradesh

J{hushi Ram

Sarkar].

• April I.

Nandlal Misra v. 11, L. 11-1 is,, a

Subba Rao J.

Section 488 of the Code of Criminal Procedure does not contemplate a preliminary enquiry before issuing a notice but lays down that all evidence under that section should be taken in the presence of the respondent or his pleader indicating thereby that one enquiry only should be held after notice.

Sub-section (6) of s. 488 is mandatory in form and in clear terms it prescribes the procedure to be followed by the Magistrate. It is the duty of the Court, before making the order, to find definitely, though in a summary manner, the paternity of child.

Chapter XXXVI of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. It prescribes a summary procedure for cotnP, elling a man to maintain his \vife or children.

The findings of a Magistrate under this chapter are not final and the parties can legitimately agitate their rights in a civil court.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 64 of 1958.

Appeal by special leave from the judgment and order dated December 3, Hl56, of the Allahabad High Court in Criminal Reference No, 159 of 1956.

N. 0. Sen, for the appellant.

0. K. Daphtary, Solicitor-General of India, Purshottam Tricumdas, G. 0. Mathur and 0. P. Lal, for the respondent.

1960. April 1.

The J'udgment of the Court was delivered by SuBBA RAo, J.-This appeal by special leave is directed against the judgment of the High Court of Judicature at Allahabad rejecting the reference made by the learned Sessions Judge under s. 488 of the Code of Criminal Procedure.

The appellant is a minor and Ii ves under the guardianship of his mother, Smt. Gita Basu. -On September 14, 1955, the appellant, through his mother, filed an application under s. 488 of the Code of Criminal Procedure (hereinafter referred to as the Code) in the Court of the City Magistrate, Allahabad, praying for an order against the respondent, Advocate-General, Uttar Pradesh, Allahabad, for maintenance alleging that he is his putative father.

Without gving notice to the respondent, the Magistrate posted the petition for evidence on September 20, 1955.

On that date, the appellant's guardian was examined and she was also cross-examined by the Magistrate at some length.

, -

---1

After she was examined, the Magistrate directed her to produce any further evidence she might like to lead under s. 202 of the Code and, for that purpose, he adjourned the petition for hearing to September 26, 1955, on which date one police constable was examined and the learned Magistrate made the endorsement that the applicant said that she would examine no other witness. On September 27, 1955, the appellant filed a petition before the Magistrate stating that s. 200 of the Code had no application and that no enquiry need be made before_ issuing notice to the respondent.

If, however, the Court treated the application as a complaint, the rapplicant asked for time to .adduce further eviaence in support of the application for maintenance'. On that petition the learned Magistrate made the endorsement " lead the further evidence, please, if you like". On October 6, 1955, the guardian of the appellant examined one more witness. On that date, the learned Magistrate made in the proceeding sheet the endorsement " no further evidence to be led at this stage ". _ On October 10, 1955, the learned Magistrate made an order dismissing the application. He agreed with the petitioner's contention that ss. 200 to 203 of the Code did not apply to the application for maintenance; but he expressed the view that he should be satisfied that the petitioner had a prima f acie case before he issued notice to the respondent. He then proceeded to consider the evidence and came to the conclusion that he was not satisfied that the respondent was the father of Nand Lal, and on that finding he refused to issue notice of the application to the respondent, and dismissed the application. The appellant filed a revision against that order of the learned. Magistrate to the Sessions Judge, Allahabad. The learned Sessions Judge, after considering the materials placed before the Magistrate, came to the conclusion that it was a fit case in which the Magistrate ought to have issued summons to the respondent under sub-s. (6) of s. 488 of the Code.

He submitted the record to the High CDurt Df Judicature at Allahabad recommending that the order passed by the Magistrate be set aside and that the Magistrate be ordered to., proceed with the

Nan dial Misra

v I{. L. Misra

Subba Rao].

I96o application in accordance with law. The reference

Nandlal Misra came up for hearing before Chowdhry, J., who, on the v. analogy of other sections of the Code held that the

I<. L. Mism Magistrate in holding a preliminary enquiry acted in consonance with the general scheme of the Code and Subba Rao J. that, therefore, the order dismissing the application was not vitiated by any illegality or irregularity. He observed that it was conceded by. the appellant before the Magistrate that the Magistrate could hold a preliminary enquiry and that, therefore, it was not open to the appellant to question its propriety. He also found that every opportunity was given to the guardian of the appellant to lead such evidence as he desired to produce and that, therefore, the appellant was not prejudiced by the alleged irregularity. On the maintainability of the reference, he held that the finding arrived at by the learned Magistrate was one of fact on the materials placed on the record and, as the Magistrate did not act perversely or in contravention of some well-established principles of law or procedure, the learned Sessions Judge should not have made the r.eference. The learned Judge finally pointed out that the proceedings were only summary in nature and that they did not deprive the appellant of his right to seek remedy, if any, in a civil court. In the result,· the reference was rejected. The appellant by this appeal questions the correctness of that order.

Learned counsel for the appellant contends that the learned Magistrate followed a procedure not contemplated by the Code of Criminal Procedure and that in any event he conducted the enquiry in a manner

- which, to say the least, was unjust to tb.B appellant.

The learned Solicitor General, appearing for the respondent, supported the procedure adopted by the Magistrate and also the finding arrived at by him.

He further contended that the appella, nt in the High Court as well as before the Magistrate conceded that the Magistrate had power to make a preliminary enquiry and that, therefore, he should not be allowed to question the validity of the enquiry for the first time before this Court.

Ordinarily, in a case like this we should have been disinclined to interfere with the order of the High

• -

...

Court in an appeal filed under Art. 136 of the Constitution. But, this appeal discloses exceptional circumstances which compel us to depart from the ordinary practice.

It is not correct to tate that the appellant had conceded throughout that a Magistrate can make a preliminary enquiry under s. 488 of the Code before issuing notice to the respondent. Indeed the judgment of the Magistrate discloses that on behalf of the appellant certain decisions were cited in support of the contention that an application under s. 488 of the Code does not come under the purview of ss. 200 to 203 of the Code.

Section 200 of the Code provides for the examination of the complainant and the witnesses present in court. Section 202 enables him to make a further enquiry before issuing notice. Section ' 203 empowers him to dismiss a petition, if in his judgment no sufficient ground for proceeding with the case has been made out. The contention raised by the appellant, therefore, can only mean that the Magistrate cannot make a preliminary enquiry in the manner contemplated by the said provisions.

Indeed, the Magistrate accepted this contention; but he obimrved: ".But, as the learned counsel submit, I have to be satisfied that a notice under s. 488 Cr. P.C. should issue to the opposite party before I issue it and that, therefore, all that has come on record as yet is admissible for consideration of the question whether the notice should be issued or not". This observation did not record any concession on the part of the appellant that the Magistrate could make a preliminary enquiry.

In the context of the first submission, the second submission could only mean that the Magistrate could satisfy himself before issuing notice, whether the application was ex facie not maintainable or frivolous.

In the revision petition filed before the Sessions Judge, the appellant raised the following ground :

" Because the court below while correctly holding that application made by the applicant under s. 488 Cr. P. C. did not attract the operation of the provisions made in ss. 200 to 203 of the said Code and further that in pursuance of the mandatory provision in s. 488(6) all evidence under

Nandlal Misra v. f{. L. Misra

Subba Rao J.

N andlal Misra v.

K. L. Misra

S1tfJba Rao].

Chapter XXXVI of the said Code shall be taken in the presence of the opposite party, has erred in law in directing evidence to be led under s. 200 Cr .P. C. and in considering the said evidence has usurped a jurisdiction not vested in it by law." The judgment of the learned Sessions Judge also disclosed that this point was , raised before him.

Though the learned Sessions Judge accepted the contention that ss. 200 to 203 of the Code had no application, he remarked that "in this case the learned Magistrate thought it fit to satisfy himself if this was a case fit enough in which he should issue a notice." Before the learned Judge of the High Court, it does not appear that any concession, even in a limited form, was made.

Chowdhry, J., observes in his judgment" .. .it appears that it was conceded by the learned counsel appearing for the applicant that the Magistrate had to satisfy himself ir\ limine that a notice of the application in question should issue to the opposite party." This observation is only a reproduction of what the Magistrate stated in his judgment.

Learned counsel, who appeared for the appellant in the High Court, does not appear to have made any fresh concession before the High Court and we do not think that the lea, rned Judge was justified in drawing from the' observations of the Magistrate that it was conceded on behalf of the applicant that it would be a proper procedure for the court to make such a preliminary enquiry in order to' satisfy itself that notice should issue to the opposite party.

As we have pointed out, the main contention of the petitioner throughout was that the Magistrate had no p0wer to make a preliminary enquiry and the concession, even if it had been made, can only mean, in the context,

tha.t the Magistrate could satisfy himself whether, on the allegations in the petition, it was a frivolous petition.

The first question is whether s. 488 of the Code contemplates any preliminary enquiry on the part of a Magistrate before he could issue notice to the opposite party. The answer to this question turns upon the construction of the pr9visions of s. 488 of the Qode.

Chapter XXXVI of the Cod(' 9on, tlllin~ three

I I 1

. /"

provisions. The heading of the Chapter is "Of The Maintenance of Wives and Children". The relevant provisions read : Section 488.

(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency, Magistrate, a Sub-divisional Magistrate or a Magistrate of the first class may, upon proof of such neglect or refusal, order. such person to make a monthly allowance for the maintenance of his wife or such child, at such monthly rate, not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the J}fagistrate from time to time directs. x x x

(6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader, and sh:; i,11 be recorded in the manner prescribed in the case of summons-cases : x x x Section 489 provides for the alteration in the allowance under s. 488, and s. 490 prescribes the procedure for the enforcement of the order of maintenance. The relief given un_der this Chapter is essentially of civil nature. It prescribes a summary procedure for compelling a man to maintain his wife or children. The findings of a magistrate under this Chapter are not final and the parties can legitimately agitate their rights in a civil court. This Chapter is a self-contained one. It recognizes the right of a child or wife to claim maintenance. It prescribes the procedure to be followed and provides for the enforcement of the decision of the magistrate. Under s. 488, so far as it is relevant to the present enquiry, an illegitimate child unable to maintain itself is entitled to a monthly allowance for its maintenance, if the putative father having sufficient eans neglects or refuses to maintain it. It 'is suggested thi:tt unless the child is admitted by the putative father to be his illegitimate child1 the

z960

Nandlal Misra

K. L. Misra

Subba Rao J.

N and/al Misra v.

J(. L. Misra

Subba Rao ].

magistrate has no power to make an order for payment of maintenance. This argument, if accepted, would make the entire section nugatory. The basis of an application for maintenance of a child is the paternity of the child irrespective of its legitimacy or illegitimacy. The section by conferring jurisdiction on the magistrate to make an allowance for the maintenance of the child, by necessary implication,. confers power on him to decide the jurisdictional fact whether the child is the illegitimate child of the respondent.

It is the duty of the court, before making the order, to find definitely, though in a summary manner, the paternity of the child. Sub-s. (6) of s. 488 is mandatory in form and in clear terms it prescribes the procedure to be followed by the Magistrate. Under that sub.section, all evidence under that Chapter shall be taken in the presence of the husband or the father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed in the case of summons-cases. The word " all " with which the sub-section opens emphasizes the fact that no evidence shall be taken in the absence of the father or his pleader. It is conceded that ss. 200 to 203 of the Code do not apply to an application under s. 488 of the Code.

As the proceedings are of a civil nature, the Code does not contemplate any preliminary enquiry.

When the terms are clear, there is no scope for drawing inspiration from other sections of the Code, or for deviating from the procedure prescribed to fill up an alleged lacuna. It is said that if no preliminary enquiry be held, even in a blackmailing action notice will have to go to the respondent. There is nothing incongruous in this posit.ion; for, if a suit is filed in a civil court for a decree for maintenance by a child against the alleged putative father, summons will go to him without any preliminary enquiry. We are not impressed by the argument that the sub-section itself is intended only for the benefit of the respondent. It appears to us that notice to the respondent is in the interest of both the applicant as well as the respondent while it enables the respondent to be present when evidence is takenagairist him, it lightens the burden

• -

' -

of the petitioner, for an honest respondent may admit his paternity of the child, if that was a fact and may contest only the quantum of maintenance. We, therefore, hold thats. 488 of the Code does not contemplate a preliminary enquiry before issuing a notice, but lays down that all evidence under that Chapter should be taken in the presence of the respondent or his pleader, indicating thereby that one enquiry only should be held after notice.

The more objectionable feature in this cse is that the Magistrate followed a procedure, which is, to say the least, unjust to the appellant. The appellant's guardian was examined by the Magistrate, and she related the circumstances that led to her illicit intimacy with the respondent; she has stated in what circumstance the intimacy commenced. She filed copies of the notices sent by her, through an advocate, by registered post to the respondent demanding maintenance and stated that she received the acknowledgments but the respondent did not think it fit to reply.

She filed a photograph wherein she and the respondent were seated on chairs with the appellant standing between them. A servant was also examined, who deposed that she had seen the respondent visiting the appellant's mother at odd hours. This evidence, ordinarily, would be sufficient, even if the procedure fol. lowed by the Magistrate was permissible, to give notice to t1ie respondent.

But the learned Magistrate cross-examined the mother of the appellant at great length. The cross-examination discloses that the Magistrate had either uncommon powers of intuition or extraneous sources of information, for he elicited so many minute details of her life that only an advocate well instructed in his brief cou, ld possibly do.

The singularity of the. method adopted by the Magistrate does not end there. The leai.:ned Magistrate, though he subsequently held that he could not make a preliminary enquiry as contemplated by ss. 2QO to 203 of the Code, examined the mother of the appellant at

great length and then gave her opportunity under s. 202 of the Code to produce other evidence.

After examining two more witnesses, the learned Magistrate ordered tha, t " no further evidence to be led at thilj

r960

Nandiat Misra v.

K. L. Misra

Subba Rao ].

z960

N andlal Misra v.

K. L. Misra

Subba Rao ],

stage ''. This order indicates that the learned Magistrate prevented the appellant at that stage to examine other witnesses. Even if a liberal meaning was given to the terms of the order, it would mean that at that time the Magistrate was inclined to give notice to the respondent but changed his mind subsequently.

Thereafter, the Magistrate considered the evidence and delivered a judgment holding that the paternity of the appellant had not been established. While there was uncontradicted evidence sufficient for the Magistrate to give notice to the espondent, he recorded a finding against the appellant before the entire evidence was placed before him.

While accepting the contention of the appellant that the procedure under ss. 200 to 203 of the Code did not apply, in fact he followed that. procedure and converted the preliminary enquiry into a trial for the determination of the question raised.

Indeed, he took upon himself the role of a cross-examining counsel engaged by the respondent. The record discloses that presumably the Magistrate was oppressed by the high status of the respondent, and instead of making a sincere attempt to ascertain the truth proceeded to adopt a procedure which is not warranted by the Code of Criminal Procedure, and to make an unjudicial approach to the case of the appellant. In the courts of law, there cannot be a double-standard-one for the highly placed and another for the rest: the M!j>gistrate has no concern with personalities who are parties to the case b'efore him but only with its merits.

After carefully going through the entire record, we are satisfied that the appellant was not given full opportunity to establish his case in the manner prescribed by law. We should not be understood to have expressed any opinion on the merits of the case ; they fall to be considered on the entire evidence which may be produced by the appellant in the presence of the respondent or his pleader, as the case may be.

In the result, the iJrder of the High Court is set aside and the reference made by the Sessions Judge is accepted and the application is remanded to the Court

of the Magistrate, First Class, Allahabad, for disposal according to law.

Appeal allowed.

s. 2

s. 21

N AND LAL MISRA

K. L. MISRA

K. SuBBA RAo

C. SHAH, JJ.

s. 488

Code of Criminal Procedure

Code of Criminal Procedure

s. 488

s. 488

Criminal Procedure Code

Supreme Court

J{hushi Ram

Subba Rao

Section 488

Code of Criminal Procedure

s. 488

Chapter XXXVI of the Code

Allahabad High Court

N. 0. Sen

K. Daphtary

G. 0. Mathur

P. Lal

SuBBA RAo

High Court of Judicature at Allahabad

s. 488

Code of Criminal Procedure

Gita Basu

s. 488

Code of Criminal Procedure

September 20, 1955

s. 202

September 26, 1955

, -
1

After she was examined, the Magistrate directed her to produce any further evidence she might like to lead under s. 202 of the Code and, for that purpose, he adjourned the petition for hearing to September 26, 1955, on which date one police constable was examined and the learned Magistrate made the endorsement that the applicant said that she would examine no other witness.

September 27, 1955

s. 200

6, 1955

October 10, 1955

ss. 200 to 203

Nand Lal

Sessions Judge, Allahabad

s. 488

High CDurt Df Judicature at Allahabad

Nandlal Misra

Chowdhry

Code of Criminal Procedure

Art. 136

s. 488

s. 488

ss. 200 to 203

Section 200

Section 202

s. 488

s. 488

ss. 200 to 203

s. 488(6)

Chapter XXXVI of the said Code

s. 200

ss. 200 to 203

s. 488

s. 488

Section 488

Section 489

s. 488

s. 490

s. 488

K. L. Misra

s. 488

ss. 200 to 203

s. 488

ss. 2Q

s. 202

ss. 200 to 203

Code of Criminal Procedure


3 S.C.R. SUPREME COURT REPORTS

THE CHARTERED BANK, BOMBAY v.

THE CHARTERED BANK EMPLOYEES' UNION.

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

Industrial Dispute -Chief Cashier of Bank withdrawing guarantee in respect of Assistant Cashier-Termination of service of Assistant Cashier by Bank without holding enquiry-Validity of-All India Industrial Tribunal (Bank Disputes) Award, I95J, paras. 52I,

522(I).

The system of working in the cash department of the appellant Bank was that there was a Chief Cashier and there were about thirty Assistant Cashiers under him.

The Chief Cashier had to give security for the work of the cash department; the Assistant Cashiers were employed upon being introduced by the Chief Cashier who guaranteed each such employee. There was long standing practice in the Bank that at the end of the day when the cash was locked up under the supervision of the Chief Cashier, all the assistant cashiers had to be present so that the cash could be checked before being locked up. In spite of reminders C, an Assistant Cashier, had been leaving the Bank without the permission of the Chief Cashier for some time before the cash was checked and locked up. The Chief Cashier reported the matter to the management, withdrew his guarantee in respect of C and stated that unless the services of C were dispensed with his conduct would affect the security of the cash department. The Bank terminated the services of C in accordance with the provisions of para. 522(1) of the All India Industrial Tribunal (Bank Disputes) Award, 1953, without holding any enquiry against C.

The Industrial Tribunal to which the dispute was referred held that this was in fact and in reality a case of termination of services for misconduct and the Bank ought to have followed the procedure laid down in para. 521 of the Bank Award for taking disciplinary action, that the termination of service was. illegal and improper and that C was entitled to reinstatement with full back wages and other benefits: Held, that the services of the Assistant Cashier were properly terminated by the Bank. There was no doubt that an employer could not dispense with the services of a permanent employee by mere notice and claim that the industrial tribunal had no jurisdiction to inquire into the circumstances of SJ!ch termination. Even in a case of this kind the requirement of bonafides was essential and if the termination of service was a colourable exercise of the power or as a result of victimisation or unfair h.bour practice the tribunal had jurisdiction to interfere. Where the termination of service was capricious, arbitrary or unnecessarily harsh that may be cogent evidence of victimisation or unfair labour practice. In the present case the security of the

April 4.

r960 Bank was involved and if the Bank decided that it would not go into the squabble between the Chief Cashier and C and would use Chartered Bank, para. 522(1) of the Bank Award to terminate the, services of Cit

Boinbay could not be said the Bank was exercising its power under para. v. 522(1) in a colourable manner. It was not necessary that in Chartered Bank every case where there was an allegation of misconduct the Eniptoyees' Union procedure under para. 52r for taking disciplinary action should be followed.

Buckingham and Carnatic Company Ltd. v. Workers' of the O!mpany, 1952 L.A.C. 490, approved.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 14 of 1959.

Appeal by special leave from the Award dated February 21, 1958, of the Central Government Industrial Tribunal, Nagpur at Bombay, in Reference CGIT No. 12of1957.

Sachin Ghaudhury, S. N. Andley, J. B. Dadachanji and Rameshwar Nath, for the appellant.

A. S. R.Chariand Y. Kumar, fortherespondents.

1960. April 4. The Judgment of the Court was delivered by

wanc/100 J.

WANCHOo,_J.-This is an appeal by special leave in an industrial matter. , The appellant is The Chartered Bank, Bombay (hereinafter called the Bank). There was a dispute between the Bank and its workmen regarding the termination of the service of one Colsavala (hereinafter called the respondent) who was working as an assistant cashier in the Bank. The system of working in the cash. department of the Bank is that there is a chief cashier and under him are about thirty assistant cashiers. The Chief Cashier has to give security for the work of the cash department.

Consequently all assistant cashiers are employed upon the introduction of the Chief Cashier who guarantees each such employee.

By virtue of this guarantee the Chief Cashier alone is unconditionally responsible to the Bank for any shortage which might occur in the cash department and no security is taken from the assistant cashiers working therein. In view of this guarantee by the Chief Cashier there has been a longstanding practice in the Bank that at the end of the day when the cash is locked up under the supervision of the Chief Cashier, all the assistant cashiers have to be present so that the cash may be checked before

• -

being locked up. Assistant Cashiers therefore can only r960 leave the Bank before the locking up of the cash after Chartered Bank, obtaining permission of the Chief Cashier.

Bombay On January 4, 1957, the Chief Cashier reported to v • the management that the respondent had been leaving Chartered Bank the Bank without his permission for some time past Employees' Union before the cash was checked and locked up in spite of the issue of a departmental circular in that behalf on Wanchoo J.

December 24, 1956, by which all assistant cashiers (including the respondent) were reminded of the long~

standing practice that no assistant cashier should leave the Bank without the permission of the Chief

Cashier before the cash was checked and locked up.

The Chief Cashier therefore stated that he was unable to continue to guarantee the respondent and that unless the respondent's service was dispensed with his conduct will affect the security of the cash department.

As the Bank was not prepared to change the system in force in the cash department, the management decided to dispense with the service of the respondent in accordance with the mode of termination prescribed by paragraph 522(1) of the All India Industrial ribunal (Bank Disputes) Award of March, 1953 (hereinafter referred to as the Bank Award). The Bank was also unable to employ the respondent in any other department. It therefore informed the respondent on March 29, 1957, that as the guarantee covering his employment had been withdrawn by the Chief Cashier the Bank was unable to con:tinue to employ him. The notice required under paragraph 522(1) was given and the amount due to the respondent including retrenchment compensation was paid to him and his service was terminated. Thereupon a dispute was raised by the workmen of the Bank and a reference was made by the Cel1tral Government to the Industrial Tribunal with respect to the "alleged wrongful termination of the services of Shri N. D. Colsavala by the Chartered Bank, Bombay, and the relief, if any, to which he is entitled."

The case on behalf of the -respondent was that he. had been working in the Bank since September I, 1937, honestly and efficiently as an assistant cashier in the cash department. The previous Chief Cashier who

r960 was the father of the preent Chief Cashier however became hostile to him since 1943, because he claimed Cha, tered Bank, his legitimate dues for over-time work and leave

Bo"':_ay which the then Chief Cashier was not prepared to Cha, tmd Bank allow. Further the respondent's letter of appointment Employees' Union did not oblige him to give any security or to procure any guarantee and if the Chief Cashier had given any Wanchoo J. guarantee to the Bank, the respondent was not concerned with it and had even no knowledge of it. He

W!).S given no opportunity to contest the reasons for the withdrawal of the guarantee by the Chief Cashier; nor was he asked to furnish security or give a fidelity bond, even if the Chief Cashier had withdrawn the guarantee. In consequence the discharge of the respondent from service on the ground given by the Bank was entirely illegal, wrongful and unjustified and he was entitled to reinstatement or in the alternative to full compensation for loss of employment.

The case of the Bank was that it was entitled to terminate the service of the respondent under paragraph 522(1) of the Bank Award and it was not incumbent on it to state the reasons for such termination and the reasons could not be inquired into or examined by the tribunal. In the alternative it was submitted that if the tribunal was of the opinion that it was open to it to inquire into the reasons, the Bank's case was that the respondent was not dismissed or discharged by way of punishment for any misconduct and that the Bank merely terminated his service under paragraph 522(1) of the Bank Award, as his guarantee had been withdrawn by the Chief Cashier and it was impossible to continue to employ him in the circumstances, the Bank being unprepared to change its system of working which has already been mentioned above. It was also said that the Bank was not bound to transfer the respondent to another department and in any case the respondent's training, experience, ability or record did not fit him for work in any other department of the Bank.

The tribunal held that even though the Bank had chosen to follow the procedure laid down in paragraph 522(1) of the Bank Award which provides for termination of employment "in cases not involving

...

disciplinary action for misconduct, by three months' x96o notice or on payment of three months' pay and allow- Chartered Bank, ances in lieu of notice", this did not preclude it from Bombay inquiring into the reasons for the termination of v .. service and into the legality and/or propriety of the Chartere~ Ball action taken by the bank and that paragraph 522(1) Employees Union did not give a free hand to the Bank to dispense with wa:; hoo 1. the service of a permanent employee at will. It also held that it was always open to the tribunal to inquire info the bona fides as well as justifiability of the action taken. It then went into the circumstances in which' the termination of service took place andwas of opinion that this was in fact and in reality a case of termination of service for misconduct, and that it was the duty of the Bank to follow the procedure for taking disciplinary action for the alleged insubordination and persistent disobedience of the orders of the

Chief Cashier by the respondent with respect to leaving the Bank without his prior permission before the cash. was checked and locked up and -inasmuch as the Bank failed to follow the requisite procedure as was laid down in paragraph 521 of the Bank Award, the termination of the service of the respondent was illegal and imprope~ and he was entitled to reinstatement with full back wages and other benefits.

It is this order which is being challenged before us by the Bank.

The main contention on behalf the Bank is that theview taken by the tribunal that in every case where there may be some misconduct the Bank is bound to take disciplinary action under paragraph 521 of the Bank Award makes.paragraph 522( l) completely otiose and is erroneous. Further it is contended that in the peculiar position obtaining in the cash department of the Bank whereby the Chief Cashier guarantees all the assistant cashiers working under him, the Bank did not want to go into the squabble between the Chief Cashier and the respondent_ and as the Chief Cashier had withdrawn the guarantee of the respondent, the Bank decided without apportioning any blame between the Chief Cashier and the respondent to act under paragraph 522(1) of the Bank Award.

It is urged that paragraph 522(1) of the Bank Award is

r960 particularly meant to meet situations like this which

may arise in a banking concern.

Chartered Bank, h fi h f ' h T e rst question that arises t ere ore is t e scope Bombay v. of the power of the Bank to act under paragraph Chartered Bank 522(1) of the Bank Award, particularly in the peculiar fanployees' Union situation prevailing in the cash department of the Bank. The position in the cash department of the Wanchoo J. banks was considered by the Bank Award in Chapter XXI with respect to giving of security.

In paragraphs 417 and 418, the existing practice in various banks is summarised and it takes one of three forms, na.mely-(i) every member of the sta.ff is to give security, (ii) the head cashier gives a guarantee on behalf of all the cashiers working under him, and (iii) where the treasurer system prevails, the treasurer enters into a contract with the bank and recommends the employees for emplC?yment in the cash department and guarantees their fidelity and they are thereupon appointed by the bank. The tribunaL was not right in saying that the system which was prevailing in the Bank was peculiar to it and was not mentioned in the Bank Award. It will be seen that the system in the Bank is of the second kind noticed in the Bank A ward where the Chief Cashier guarantees all those working under him. It is also mentioned in the Bank Award that the Chief Cashier generally takes security deposits from persons working under him but that did not appear to be the invariable rule, and in the Bank the Chief Cashier does not take any security from his subordinates. In such a system the Bank has to depend upon the security given by the Chief Cashier and his guarantee of the employees working under him. It is impossible to accept that this way of working was not known to the respondent. The Bank has produced the respondent's application for employment and it is significaht that it is addressed to the Chief Cashier and not to the management of the Bank and this bears out the contention of the Bank that the subordinates in the cash department are employed on the recommendation of the Chief Cashier who gives guarantee for them. Nor does the Bank's contention that no one employed in the cash department leaves without permission till the cash is checked and locked up appears

improbable, for the practice seems necessary for the r960 security of the cash department. Therefore when the Chartered Bank, Bank was faced with the report of the Chief Cashier Bombay dated 4-1-1957, it had to decide in the special circumv. stances of this case what action should be taken on that Chartered Bank report. Two courses were open to it: it could have Employees' Union taken disciplinary action under paragraph 521 of the Wanchoo].

Bank Award or it could have acted under paragraph 522(1). The submission on behalf of the Bank is that it did not want to go into the squabble between the

Chief Cashier and the respondent and as the Chief Cashier had withdrawn his guarantee with respect to the respondent it acted bona fide in proceeding under paragraph 522(1) and thus no question arose of its taking disciplinary action against the respondent.

There is no doubt that an employer cannot dispense with the services of a permanent employee by mere notice and claim that the industrial tribunal has no jurisdiction to inquire into the circumstances in which such termination of service simpliciter took place.

Many standing orders have provisions similar to paragraph 522(1) of the Bank Award, and the scope of the power of the employer to act under such provisions has come up for consideration before labour tribunals many a time. In Buckingham and CarnatiC

Company Ltd., Etc., v. Workers of the Company, etc. {1), the Labour Appellate Tribunal had occasion to consider this matter relating to discharge by notice or in lieu thereof by payment of wages for a certain period without assigning any reason. It was of opinion that even in a case of this kind the requirement of bona fides is essential and if the termination of service is a colourable exercise of the power or as a result of victimisation or unfair labour practice the industrial tribunal would have the jurisdiction to intervene and set aside such termination. Further it held that where the termination of services is capricious, arbitrary or unnecessarily harsh on the part of the employer judged by normal standards of a reasonable man that may be cogent evidence of victimisation or unfait la.bour practice. We are of opinion that this correctly lays down the scope of the powei of the tribunal to (I) [195a] LA.C. 490,

r960 interfere where service is terminated simpliciter under the provisions of a contract or of standing orders or Chartered Bank, Bombay of some award like the Bank Award.

In order to v. judge this, the tribunal will have to go into all the Chartered Bank circumstances which led to the termination simpliciter Employees' Union and an employer cannot say that it is not bound to - disclose the circumstances before the tribunal.

The Wanchoo ]. form of the order of termination is not conclusive of the true nature of the order, for it is possible that the form may be merely a camouflage for an order of dismissal for misconduct. It is therefore always open to the tribunal to go behind the form and look at the substance; and if it comes to the conclusion, for example, that though in form the order amounts to termination simpliciter it in reality cloaks a dismissal for misconduct it will be open to it to set it aside as a colourable exercise of the power.

It is on these principles therefore that we have to judge the action taken by the Bank in this case.

In tho statement of claim put in by the workmen there was no allegation of victimisation or unfair labour practice. An affidavit•was filed by the respondent later before the tribunal in which it was said that the Bank had acted mala fide in removing him from service. But in this affidavit nothing was said as to how the management of the Bank as distinct from the Chief Cashier had any reason to act mala fide against the respondent.

The tribunal also has not recorded any finding that the action of the Bank in terminating the service of the respondent was mala fide or amounted to unfair labour practice or was a case of victimisation. It ordered reinstatement on the ground that this was a case where disciplinary action must and should have been taken and that was not done. In one part of the award the tribunal has remarked that if it is found that the Bank has merely in colourable exercise of the power made the order under paragraph 522(1) of the Bank Award, the order would not be sustainable.

But there is no finding that the action taken in this case was a colourable exercise of the power under paragraph 522(1). It is, however, urged on behalf of the respondent that even though there is no such find. ing by the tribunal a perusal of the entire award seems

to show th11t this was what the tribunal thought inas~ r960 much as it has said that this was a case in which • d h ld h b k Chartered Bank, disciplinary act10n must an s ou ave een ta en.

Bombay However, as we read the award of the tribunal, the v. impression that we get is that its view was that where Chartered Bank there is an allegation which may amount to misconduct Employees' Unio" against an employee of a bank, the procedure under paragraph 521 must always be followed and that the Wanchoo J. procedure under paragraph 522(1) can never be followed; and that is why the tribunal did not give any finding that the action of the Bank was a colourable exercise of the power under 1paragraph 522(1).

But as learned counsel for the respondents has urged before us that the action in this case is in any case a colourable exercise of the power under paragraph 522(1) we propose to look into this aspect of the matter ourselves.

It is true that there was some kind of allegation by the Chief Cashier which may amount to misconduct in this case and if we were satisfied that the termination of service of the respondent was due to that misconduct and that the form of the order was merely a cloak to avoid holding a proper enquiry under paragraph 521, no doubt there would have l:ieen no case for interference with the order of the tribunal. But this is a peculiar case depending upon a peculiar system prevalent in the cash department of the Bank. That system is that the Chief Cashier gives security for the entire working of the cash department and is unconditionally responsible for any loss that might be occasioned to the Bank in that department. The appointments . in that department are made on the recommendation of the Chief Cashier and he gives a guarantee about each employee and is unconditionally responsible to the Bank for any shortage which might occur. It is in these circumstances that the Bank was faced with the report of the Chief Cashier by which for the reason given by him he withdrew the guarantee so far as the respondent was concerned. The security of the cash department was thus involved and ifthe 'Bank decided as it seems to have done in this case that it would not go into the squabble betweenhe Chief Cashier and the respondent and would use paragraph 522(1) of the

r96o Bank Award to terminate the servjce of the respondent it cannot be said that the Bank was exercising Chartered Bank,

Bombay its power under paragraph 522(1) in a colourable manv. ner. It may have honestly come to the conclusion Chartered Bank that in this situation, as it was not possible for it to Employ"s' Union change its system in the cash department, there was no option for it but to dispense with the service of the Wanahoo ]. k A d respondent under paragraph 522(1) of the Ban war without going into the rights and wrongs of the dispute between the Chief Cashier and the respondent.

In the peculiar circumstances therefore obtaining in the cash department of the Bank it cannot in our opinion be said that the use of the power under paragraph 522(1) by the Bank in the present case was a colourable exercise of that power. Nor do we think . that the failure of the Bank to provide alternative employment for the respondent would lead to any such inference, for the Bank may very well be right when it says that it is a specialised institution and considering th:at the respondent has been working in one department for the last twenty years he was not fit to be absorbed in another department. In the circumstances of this case therefore we are not prepared to hold that the termination of the service of the respondent was a colourable exercise of the power under pamgraph 522(1) of the Bank Award. The mention of the fact that the service was being terminated because the Chief Cashier had withdrawn the guarantee of the respondent in the notice of discharge will not change the nature of the termination, for the reason was given obviously to avoid the charge that the termination was entirely capricious or arbitrary, and therefore n..ot bona fide.

We therefore allow the appeal and set aside the order of the tribunal by which the respondent was ordered to be reinstated with full back wages and other benefits. In the circumstances we pass no order as to costs.

Appeal allowed.

THE CHARTERED BANK, BOMBAY

THE CHARTERED BANK EMPLOYEES' UNION

P. B. GAJENDRAGADKAR

K. c. DAS GUPTA, JJ.

Chartered Bank

Boinbay

CIVIL APPELLATE JURISDICTION

Sachin Ghaudhury

S. N. Andley

B. Dadachanji

Rameshwar Nath

A. S. R.Chariand

Chartered Bank, Bombay

Colsavala

January 4, 1957

Wanchoo

December 24, 1956

March 29, 1957

Cel1tral Government

N. D. Colsavala

Chartered Bank, Bombay

Bombay

Wanchoo J. banks


3 S.C.R. SUPREME COURT REPORTS 451

THE MANAGEMENT OF CHANDRAMALAI

ESTATE, ERNAKULAM

ITS WORKMEN AND ANOTHER. ( P. B. GAJENDRAGADKAR,, K. N. W ANCHOO and K. c. DAS GUPTA, JJ. )

Industrial Dispute-Failure of conciliation-Union to take prroper and. reasonable course before calling a strike.

The management having refused to comply. with some of the demands raised by workmen, the matter was referred for conciliation. Efforts at conciliation failed on November 30, 1955 On the very next day the unionfgave:a strike.notice and actually went on strike with effect from December 9, 1958. On January 3, 1956, the Government referred the dispute to the Industrial Tribunal and the strike was called off on January 5, 1956. The question as to whether the workmen were entitled to get wages for the period of the strike was along with some ofher grounds referred to the Tribunal. The Tribunal took the view that both the parties were to blame for the strike and that the workmen

ere entitled to get 50% of the emoluments for the period of strike: Held, that on the facts of the case the strike was unjustified and that the workmen were not entitled to any wages for the period.

When conciliation attempts failed it was reasonable for the union to take the normal and reasonable course provided by law to settle the dispute by asking :the Government to make a reference to the Industrial Tribunal before it decided to strike.

A strike which is a legitimate weapon in the hands of the workmen would not be ordinarily justified if hastily resorted to without exhausting reasonable avenues for peaceful achievement of the object.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 347/1959.

Appeal by special leave from the Award dated October 17, 1957, of the Industrial Tribunal No. II, Ernakulam, in Industrial Disputt:i No. 63 of 1956.

S. Govind Swaminadhan and P. Ram Reddy, for the appellant. .

Jacob A. Chakramakal and K. Sundararajan, for respondent No. 1.

K. R. Ghoudhry, for respondent No. 2.

1960. April 4.

The Judgment of. the Court . wa; s delivered by

April 4.

Jtf anagement of

Chandranialai

Estate, Ernakulam

Its Workmen

Das Gupta ].

SUPREME COURT R~JPORTS (1960)

DAS GUPTA, J.-On August 9, 1955, the Union of the workmen of the Chandramalai Estate submitted to the Manager of the Estate a memorandum containing fifteen demands. Though the management agreed to fulfil some of the demands the principal demands remained unsatisfied. On August 29, 1955, the Labour Officer, Trichur, who had in the meantime been "'P prised of the position by both the management of the Estate as well as the Labour Union advised mutual negotiations between the representatives of the management and workers. Ultimately the matter was recommended by the Labour Officer to the Conciliation Officer, Trichur, for conciliation. The Conciliation Officer's efforts proved in vain. The last meeting for Conciliation appears to have been held on November 30, 1955. On the following day the Union gave a strike notil:le and the workmen went on a strike with effect from December 9, 1955. The strike ended on January 5, 1956. Prior to this, on January 5, the Government had referred the dispute as regards five of the demands for adjudication to the Industrial Tribunal, Trivandrum. Thereafter by an order dated June 11, 1956, the dispute was withdrawn from the Trivandrum Tribunal and referred to the Industrial Tribunal, Ernakulam. By its award dated October 17, 1957, the Tribunal granted the workmen's demands on all these issues. The present appeal has been preferred by the management of the Chandramalai Estate against the Tribunal's award on three of these issues. These three issues are stated in the reference thus:

" 1.

W .as the price realised by the management for the rice 8uld to Lhe workers after decontrol excessive; and if so, are the workers entitled to get refund of the excessive value so collected? • 2.

Are the workers entitled to get cumbly allowance with retrospective effect from the date it was stopped and what should be the rate of such allowance? 3.

Are the workers entitled to get wages for the period of the strike ? "

On the first issue the workmen's case was that after the control on rice was lifted by the Travancore- Cochin Government in April, 1954, the iuanagement

which continued to sell rice to the workmen, charged at the excessive rate of 12 annas per measure for -rice bought in excess of a quota for l t measure per head. This according to the workmen was improper and unjustified and they claimed refund of the excess which they have been made to pay. The manage. ment's case was that the workmen were not bound to buy rice from the Estate's management and secondly, that only the actual cost price and not any excess had been charged. The tribunal held on a consideration of oral and documentary evidence that the management b, ad charged more than the cost price and held that they were b<flind to refund the same. ·

The second issue was in respect of a claim for cumbly allowance. Charidramalai Tea Estate is situated at a high altitude. It is not disputed that it had been customary for the Estates in this region to pay blanket allowance to workmen to enable them to furnish themselves with blankets to meet the rigours of the weather and that it had really , become a part of the terms and conditions of service. But in spite of it the management of this Estate stopped payment of the allowance from 1949 onwards and resumed payment only in 1954. The management's defence was that any dispute not having been raised about this till August 9, 1955, there was no reason for raising it at this late stage. The Tribunal rejected this contention and awarded cumbly allowance of Rs. 39 per workman-made up of Rs. 7 per year for the years 1949, 1950 and 1951 and Rs. 9 per year for the years 1952 and 1953.

On the third issue while the workmen pleaded that the strike was justified the management contended that it was illegal and unjustified. The Tribunal held that

bot~ parties were to blame for the strike and ordered the management to pay workers 50% of their total emoluments for the strike period.

On the question of excess price of rice having been collected the appellant's conten.tion before us is limited to the question of fact, whether the Tribunal was right in its conclusion that more than cost price was realised.

The Tribunal has based its conclusion as regards the price realised by the management on entries made in

Jfana gement of

Ch•ndramalai

Estate, Etnakulam v Its Workmen

Das Gupta j.

Management oj

Chandramalaf

Estate, Ef'nakulam v.

Its Wormen

Das Gupta].

[1960]

the management's own documents. As regards what such rice cost the management it held that for the months of April, July and August and September the price was shown by the management's documents while for May and June these documents did not disclose the price. For these two months the Tribunal held the market price of 'rice as proved by the workers' witness No. 6 to have been the price at which the Estate's management procured their rice.

We are unable to see anything that would justify us in interfering with these conclusions of facts.

Indeed the documents on which the Tribunal has based its conclusions were not even ma'1e part of the Paper-Book so that even if we had wanted to consider this question ourselves it would be impossible for us to do so.

We are satisfied that the Tribunal was right in its conclusions as regards the cost price of rice to the management and the price actually realised by the management from workmen. The management's case that the workmen were. charged only the cost price of rice has rightly been rejected by the Tribunal. The fact that workmen were not compelled to purchase rice from the management is hardly material; the management had opened the shop to help the workmen and if it is found that it charged excess rates, in fairness, the workmen must be reimbursed. The award in so far as it directed refund of the excess amount collected on the basis of the figures found by the Tribunal cannot therefore be successfully challenged.

On the question of the cumbly allowance it is important to note that the only defence raised was that the demand had been made too late. The admitted fact that it had been regularly paid year after year for many years till it was stopped in 1949 is sufficient to establish the workmen's case that payment pf a proper cumbly allowance had become a part of their conditions of service. We do notthinkthat the mere fact that the workmen did not raise any dispute on the management's refusal to implement this condition of service till August 9, 1955, would be a sufficient reason to refuse them such payment. The management had acted arbitrarily and illegally in stopping payment of these allowances from 1949 to 1954. They

cannot now be heard to say that they should not be , asked to pay it merely because the years have already gone by. It is reasonable to think that even thoug~ the managemept did not pay the allowance the workmen had to provide blankets for themselves at their own expense. The Tribunal has acted justly in direct-· ing .payment of the allowances to the workmen for the years 1949 to 1953. The correctness of the rates awarded by the Tribunal is not challenged before us.

The Tribunal's award on this issue also is therefore maintained.

This brings us to the question whether the tribunal was right in awarding 50% of emoluments to the workmen for the strike period. It is clear that on November 30, 1955, the Union knew that conciliation attempts had failed. The next step would be a report by the Conciliation Officer, of such failure to the Government aud it would have been proper and reasonable for the Union to address the Government at the same time and request that a reference should be made to the Industrial Tribunal. The Union however did not choose to wait and afoer giving notice on December 1, 1955, to the management that it had decided to strike from December 9, 1955, actually started the strike from that day. It has been urged on behalf of the appellant that there was nl}thing in the nature of. the demands to justify such hasty action and in fairness tho Union should have taken the normal and reasonable course provided by law by asking the Government to make a reference under the Industrial Disputes Act before it decided to strike. The main demands of the Union were about the cumbly allowance and the price of rice.

As regards the cumbly allowance they had said nothing since 1949 when it was first stopped till the Union raised it on August 9, 1955.

The grievance for collection of excess price of rice was niore recent but even so it was not of such an. urgent nature that the interests of labour would .have suffered irreparably if

th~ procedure prescribed by law for settlement of such disputes through industrial tribunals was resorted to.

After all it is not the employer only who suffers if production is stopped by strikes. While on the one

M anagemem <1/

Chandramala.i

Estate, Ernakulaf1!

Management of Chandramalai Estate, Ernakulam v.

Its TVorkmen

Das Gupt.a f.

hand it has to be remembered that strike is a legitimate and sometimes unavoidable weapon in the hands of labour it is equally important to remember that indiscriminate and hasty use of this weapon should not be encouraged. It will not be right for labour to think that for any kind of demand a strike can be commenced with impunity without exhausting reasonable avenues for peaceful achievement of their objects.

There may be cases where the demand is of such an urgent and serious nature that it would not be reasonable to expect labour to wait till after asking tl).e Government to make a reference. In such cases, strike even before such a request has been made may well be justified. The present is not however one of such cases. In our opinion the workmen might well have waited for some time after conciliation efforts failed before starting a strike and in the meantime to have asked the Government to make the reference. They did not wait at all. The conciliation efforts failed on November 30, 1955, and on the very next day the Union made its decision on strike and sent the notice of the intended strike from the 9th December, 1955, and on the 9th December, 1955, the workmen actually struck work.

The Government appear to have acted quickly and referred the dispute on January 3, 1956.

It was after this that the strike was, called off.

W' e are unable to see how the strike in such circumstances could be held to be justified.

The Tribunal itself appears to have been in two minds on the question. Its conclusion appears to be that the strike though not fully justified, was half justified and half unjustified ; we fiud it difficult to appreciate this curious concept of half justification.

In any case, the circumstances of the present case do not support the conclusion that the strike was justified at all.

We are bound to hold in view of the circumstances mentioned above that the Tribunal erred in holding that the strike was at least partially justified.

The error is so serious that we are bound in the interests of justice to set aside the decision. There is, in our view, no escape from the conclusion that the strike was unjustified and so the workmen are not entitled to any wages for the strike period.

We therefore allow the appeal in part and set aside the award in so far as it directed the payment of 50%

of the total emoluments for the strike period but maintain the rest of the award. There will be no order as to costs.

Appeal allowed.

ASSAM. OIL COMP ANY ·

ITS WORKMEN (P. B. GAJENDRJ.GADKAR and K. C. DAs

GUPTA, JJ.)

Industrial Dispu, te-Termination of service in accordance with contract-If can be qu.estioned before industrial tribunal-Termination on basis of misconduct of workman-If amounts to dismissal- No enquiry-,-Reinstatement if appropriate relief.

One S was employed by the appellant as a secretary and one_ of.the terms of employment was that the appointment may be terminated on one month's notice on either side. The appellant was thoroughly dissatisfied with the work of S and disapproved of her conduct in joining the union. Purporting to act under the contract, the appellant terminated the services of S and gave her one month's pay in lieu of notice.

No enquiry was held by the appellant before terminating the services of S.

The industrial tribunal held that the termination of services amounted to a dismissal for misconduct and since no enquiry was held it was illegal and unjustified and it passed an order for the reinstatement of S.

The appellant contended that as the termination was strictly in accurdance with the terms of the contract it could not be challenged before an \ndustrial tribunal, that even if no enquiry was held the order of discharge was justified as the evidence led before the tribunal established the misconduct of S and that at the highest it was a case for awarding compensation and not for reinstatement: Held, that the discharge amounted to punishment for alleged misconduct and was unjustified in the absence of a proper enquiry. Even where the discharge was in exercise of the power under the contract it was competent for. the tribunal to enquire whether the discharge had been effected in the bona fide exercise of that power. If the tribunal found that the purported exercise of the power was in fact the result of the misconduct alleged then it would be justified in dealing with the dispute m the basis that the order of discharge was in effect an order of dismissal.

Western India Automobile Association v. Industrial Tribunal, 8omba)I, [1949] F.C.R. 321, followed ..

Management of Ckandramalai Estate, Ernakulam,

Its Workmen

Das G1<pta ] •

April 'f.·

ANOTHER. ( P. B. GAJENDRAGADKAR

K. c. DAS GUPTA, JJ.

December 9, 1958

January 3, 1956

January 5, 1956

S. Govind Swaminadhan

P. Ram Reddy

Jacob A. Chakramakal

K. Sundararajan

K. R. Ghoudhry

DAS GUPTA

Trichur

November 30, 1955

December 9, 1955

Industrial Tribunal, Trivandrum

June 11, 1956

Trivandrum Tribunal

Industrial Tribunal, Ernakulam

October 17, 1957

Chandramalai Estate

Travancore- Cochin Government

Charidramalai Tea Estate

August 9, 1955

December 1, 1955

Industrial Disputes Act

9th December, 1955

ASSAM. OIL COMP

P. B. GAJENDRJ.GADKAR

K. C. DAs

[1949] F.C.R. 321