February 12

• •

SUPREME COURT REPORTS [1960 (2)]

THE BIJAY COTTON MILLS LTD. v.

THEIR WORKMEN & ANOTHER (P. B. GAJENDRAGADKAR AND K. c. DAS GUPTA, JJ.)

Industrial Dispu.te-Minimu.m basic wage fixed by Tribunal- M odiflcation by Labou.r Appellate Tribunal according to stati/.fory 1 notification isst<cd two years after the award-If valid-Appropriate Govcmmcnt-Industrial Disputes Act, I947• (I4 of I947), Indus- trial (Development and Regulations) Act. I95I (65 of I9JI). s. 2(a)(i).

On the refusal of the appellant-employer to fix the minirnnn1 wages and rates for contract work of the \Vorkmen-respondents who alleged that they were paid below the level of bare subsistance v..1age, the dispute was referred to the Industrial Tribunal for adjudication. The first Tribunal could not fix any minimu1n basic wage and the a\vard of the second Tribunal which fixed a scale \Vas set aside on the ground that the appointment of the Tribunal was not published according to law.

The third Tribunal ultimately fixed the basic minimun1 \vage on the industry-cum-region basis after considering the rates prevalent in various parts of the country and a place nearest to the appellant company. The minimum awarded by the Tribunal was slightly increased by the Labour Appellate Tribunal in accordance \vi th a statutory notification issued under the Minimum Wages Act, 1948 (XI of 1948), which had come into force after two years of the award of the Tribunal and by which a scale of minimum wage and dearness allo\vancc was fixed.

On appeal by the appellant company by special leave.

Held, that the Labonr Appellate Tribunal committed no error of la\v in awarding the same minimum basic wage which '\Vas statutorily fixed and which came into force only two years after •. the award of the Tribunal. , In determining the minimum basic wage the fact that a large amount of dearness allo\vance \Vas paid to the employees in other

J A comparable occupations in the same region should not be ignored.

In order that the Central Government might itself become the appropriate Government within the meaning of s. 2(a)(i) of the Industrial (Development and Regulation) Act, 1951, (65 of

1951) it must specify in that behalf that the industry in question was a controlled industry.

If the services of one Tribunal were not available to the appropriate ,.Government it vvas perfectly competent to that Government to appoint another Tribunal to take up the work of acljudication.

CIVIL APPELLATE , JURISDICTION: Civil Appeal No. 355 ofl958.

Appeal by special leave from the decision dated Ill December 12, 1956 of the Labour Appellate Tribunal 11111

't'

of India, Bombay in Appeal (Born.) Nos. 77 and 103

B. C. Mills Ltd.

A. V. Viswa, natha Sastri, S. N. Andley, J. B. of 1956.

Dadachanji and Rcv; neshwar Nath for the appellant.

Their Work"?Pn B. D. Sharma, for respondent No. I.

1960. February, 12. The Judgment of the Court was delivered by

GAJENDR~GADKAR, J.~The industrial dispute bet- Gajendragadkar f. ween the Bijay Co, tton Mills Ltd., (hereinafter called the appellant) and their workmen (hereinafter called the respondents)' which has given rise to this appeal by special leave has gone through a protracted and tortuous course. The respondents claimed that the scale of minimum wages and rates for contract works should be fixed for them because it was alleged that the payments made by the appellant were below the level of the bare subsistance wage. The appellant did not accede to the demand thus made by the respondents, and so on December 1, 1950, the present dispute was referred for adjudication to the Industrial Tribu! nal consisting of Mr. D. N. Roy, under s. 10(1) read withs. 12(5) of the Industrial Disputes Act, 1947 (Act XIV of 1947) (hereinafter called the Act). Amongst the items thus referred for adjudication, the first two were (1) that the mill employees be paid minimum wages and rates. for contract works as shown in the two statements enclosed, and (2) that dearness allowance be paid to all workers at the rate of Rs. 35 per mensem each and it may be increased or decreased according to rise or fall in prices. in the present appeal we are concerned with the minimum wages.

It appears that Mr. Roy found himself unable to fix any basic minimum wage, and to support his view, that it would be inexpedient to fix any minimum basic wage in the proceedings pending before him, he referred to the fact that the question of fixatiOn of the basic wage had been rendered enormously difficult by the state of industrial development in the State of Ajmer and by the unsteady and frequent fluctuations in prices. Even so he considered several items of dispute referred to him and announced his award on October 5, 1951.

I • I •

z96o This award was challenged by the respondents before the Labour Appellate Tribunal.. The appellate tribiinal B. C. Mills Ltd, h d d th l\'- R 'h v. t ereupon reman e e matter to ill. oy wit a Their workmen direction that the issues as to the0 basic wage and as . to dearness allowance should be specifically dekr- Gajendragadkar J. mined and appropriate directions :issued on thorn

two items. This remand order was passed on October 20, 1952.

By the time the proceedings were taken up before the tribunal on remand, Mr. Roy was not available because he had ceased to be a District Judge in Ajmer.

In his place Mr. Sharma was appointed. Mr. Sharma then made his award on September 8, 1953. He fixed Rs. 25 as basic wage {tnd Rs. 10 as minimum dearness allowance. It appears that the award thus made by Mr. Sharma was subsequently quashed on the ground that his appointment had not been duly published as required by the Act.

This order was passed on May 25, 1955.

Mr. C. Jacob was then appointed Industrial Tribunal. " He made his award on January 25, 1956. By this award Mr. Jacob in substance agreed with the view taken by Mr. Sharma and fixed the basic wage at Rs. 25 per merisem and the minimum dearness allowance at Rs. IO per mensem. This award was directed to . come into operation as from December 1, 1950.

This award was again challenged before the Labour Appellate Tribunal and the appellate tribunal has partly allowed the appeal preferred by the respondents and increased the basic wage from Rs. 25 per mensem ? to Rs. 30 per mensem. The amount of the minimum dearness allowance has been affirmed at Rs. 10 per mensem. This decision was announced by the appellate tribunal on December 12, 1956. It is this decision that has given rise to the present appeal by special leave.

It is common ground that a; Statutory Committee was appointed under Minimum Wages Act, 1948 (Act XI of 1948) in respect of Ajmer on January 17,

1952. Its report was submitted on October 4, 1952, and a notification was issued in pursuance of the said repmt on Octob(Jr 7, 1952. This notification has come into force as from January 8, 1953, and in )

consequence the basic minimum wage is now statur960 torily fixed at Rs. 30 per mensem and dearness allowance at Rs. 26 per mensem. Thus it would be B. c. Mills Ltd. clear that there is no dispute between t):ie parties as Their orkmen

to what would be the basic wage and the minimum dearness allowance subsequent to January 8, 1953.

Gajendragadkar J.

It appears that Mr. Jacob who fixed the basic minimum wage at Rs. 25 per mensem relied upon the fact that the said rate represented the basic minimum wage on the industry-cum-region basis. He has observed that the basic minimum wage of an unskilled worker in the textile mills in Bombay was R.s. 30 per mensem, while at other places it varies from Rs. 22 to Rs. 30 pel' mem1em. Then he has also referred to the two charts, Exhibits 4-A and 4-B, produced by the respondents where the minimum basic wages were shown to range between Rs. 21 to Rs. 30 in Rajasthan. According to him, in Rajasthan minimum basic wages were Rs. 26 per mensem and in Beawar which is the nearest centre from Bijaynagar the minimum wages for an unskilled textile worker in 1950 were Rs. 25 per niensem. That is one fact on which the tribunal relied.

The other fact on which reliance was placed ws that there was an agreement between the parties in December 1949, under which the respondents were willing to work on the minimum wage of Rs. 27. In fact it appears that both the appellant and the iespondents had moved this Court for striking down the notification issued by the Ajmer Government by which the basic wage had been fixed at Rs. 30 from January 8, 1953. In Bijay Cotton Mills Ltd. v. The State of Ajmer (1) it was urged on their behalf jointly that the relevant provisions ofthe Minimum Wages Act were ultra vires and that it would be in the interests of the employer and the employees as well to strike down the impugned notification. This Court rejected the said contention and upheld the validity of the Act as well as of the notification. That, however, is another matter. The agreement on which the respondents were prepared to work for the appellant was pressed into service by the appellant before the tribunal. The tribunal was

(r) (1955] x S.C.R, 75l,

• •

196o influenced by that fact in finally determining the amount of basic wage. Two other facts may also have B. c. ~:us Ltd. weighed. The appellant started its textile business in

Their Workmen 1940 and had to face a serious calamity in 1943, as a result of which it suffered great loss and incurred Gajendragadkar J. liability to the tune of nearly rupees thirty lakhs.

Besides, it was urged before the tribunal that a large section of the respondents belonged to the agricultural class and they can supplement their income from agricultural sources. It is presumably on these grounds that Mr. Jacob fixed the basic wage at Rs. 25 per mensem.

The Labour Appellate Tribunal, on the other hand, has held that, in the absence of satisfactory evidence on the record, the statutory notification issued under the Minimum Wages Act affords " the best and safest guide in the matter of fixation of minimum wage" ..

It has observed that even though the notification can have no application prior to January 8, 1953, still " they were of opinion that the scales of wages fixed thereunder should not be departed from even for the period now in question. That was all the more so because not much useful material was available on the record to fix the said wage ".. It is on this ground that the appellate tribunal has increased the basic wage from Hs. 25 to Rs. 30 as prescribed by the notification. It is this modification that is challenged before us by Mr. A. V. Viswanatha Sastri on behalf of the appellant. ...

Mr. Sastri contends that the method adopted by the -' tribunal was a scientific method ; it took into account a )Jasic wage deducible on the industry-cum-region basis and this should not have been reversed by the appellate tribunal. It, however, appears that in ascertaining the wages which labour in comparable trades was getting in the relevant region, the tribunal has completely lost sight of the fact that in addition to the basic wages of Rs. 26/- Rs. 43/- was the average minimum dearness allowance paid to the workers and that made a very large difference in the total earnings of the workmen. In determining the minimum basic wa.ge the fact that a large amount of dearness allowance was being paid to employees in

other comparable occupations in the same region rc,60 should not have been ignored by the tribunal, and that is one infirmity on which the appellate tribunal was B. c. ~lls Ltd. entitled to comment.

Their Workmen Besides, if the appellate tribunal thought that more useful assistance can be derived from the statutory Gajendragadkar ]< fixation of the minimum wage in Ajmer under the Minimum Wages Act, we do not see how we Q.an interfere with the said view in the present appeal. It would not be wrong to assume, as the appellate tribunal did, that in fixing the minimum wage in the area, the Statutory Committee took into consideration all the relevant factors and came to the conclusion that that would be a fair minimum to prescribe. On the other hand, before the tribunal much relevant or useful' evidence was. not adduced, and so the appellatljl tribunal could not be said to have committed any error. of law in preferring to rely on the statutory notification rather than on the other unsatisfactory evidence produced in the case. After all, from January 8, 1953, the minimum basic wage was statutorily fixed, and so, if for a couple of years before that date the same basic wage was awarded by the appellate tribunal it cannot be said that any error of law has been committed, which should be corrected by us in our jurisdiction under Art. 136 of the Constitution. Therefore, we are not satisfied that any case for interference has been made out by the appellant on this point.

The next contention raised by Mr. Sastri is that the appointment of Mr. Jacob who made his award on January 25, 1956, was invalid, and Mr. Sastri suggests that the said award as well as the decision of the appellate tribunal should be set aside and the matter should be sent back to Mr. Sharma for disposal in accordance with law. The argument is that Mr.

Sharma's appointment as Industrial Tribunal made on December 31, 1954, was subsisting at the time when Mr. Jacob was appointed on June 17, 1955, and it is urged that when the same industrial dispute had already been referred to Mr. Sharma, it was not competent to the appropriate authority to refer the same dispute to Mr. Jacob. In support of this argument reliance is placed on the decision of this Court in The

. ,-

• •

' 988

SUPREME COURT HEPORTS [1960(2)]

i96o State of Bihar v. D. N. Ganguly & Ors (1).

In our opinion there is no substance in this argument. The B. C. }1fills Ltd. "fi . h" h h h ] f v. not1 catwn on w IC t e w o e o the argument is Thei,_ Workm.., based was issued on December 31, 1954, for the sole purpose of correcting the error which had crept into Gajendragadkar J. the appointment of Mr. Sharma by reason of the fact that his earlier appointment made on May 4, 1953, had not been duly published and notified as required by the Act. Indeed, it was because of this infirmity that the award made by Mr. Sharma on September 8, 1953, had been quashed on May 25, 1955. In reading the later notification this fact must be borne in mind.

No doubt the notification purports to refer to Mr.

Sharma for his adjudication the matter referred to him by the Labour Appellate Tribunal on remand; it, however, appears as poiuted out by the appellate

' ' .... i • I

. tribunal that at the time when the proceedings after the remand commenced Mr. Sharma's services were not available, as he was apparently not in the service of the State, and it was impossible to refer the matter to him for his adjudication. That is the finding made by the appellate tribunal and this finding is fully justified. Therefore, since Mr. Sharma's services were not available to the appropriate Government it was perfectly competent to the said Government to fill in the vacancy and appoint Mr. Jacob in his place to take up the work of adjudication. Therefore, tl'l.ere is no substance in the contention that the deeision of Mr. Jacob is invalid in law.

The last contention urged is thail the reference is invalid inasmuch as the Chief Commissioner of Ajmer was not competent to refer the present dispute for adjudication under s. 10(1) read with s. 12(5) of the Act.

The argument is that the Textile Industry has been included at serial No. 23 in the First Schedule to the Industrial (Development and Regulation) Act, 1951 (Act 65 of 1951) and as such the Chief Commissioner of Ajmer was not the appropriate Government under s. 2(a)(i) of the Act. It is urged, that the present dispute could have been validly refet\red for adjudication to the industrial tribunal only by the Central Government. Section 2(a)(i) inter alia defines the

(t) [19,9] S.C.R. n9x.

- ""\--

appropriate Government as meaning, in relation to x96v any industrial dispute concerning any industry carried on by or under the authority of the Central Govern- B. c. Milts Ltd. b

~ mentor y a railway company or concerning any Their Workmen such controlled industry as may be specified in this b_ehalf by the Central Government, the Central Gajendragadkar ].

Government. The question which arises is: has the textile industry been specified as controlled industry in this behalf by the Central Government ? It is true that the textile industry is controlled by the provisions of Act 65 of 1951 and in that sense it is controlled industry ; but that would not be enough to attract the application of s. 2(a)(i) of the Act. What this latter provision requires is that the Central Government must specify "in this behalf" that the industry in question is a controlled industry; in other words the specification must be made by the Central Government by reference to, and for the purpose of, the provisions of the Act in order that the Central Government may itself become the appropriate Government qua such industry under s. 2(a)(i) of the Act. It.is conceded by Mr. Sastri that no such specification has been made by the Central Government. Indeed, we ought to add in fairness to Mr. Sastri that he did not very seriously press this. point.

The result is the appeal fails and is dismissed with costs.

Appeal dismissed.

M/S. ROHTAS SUGAR LTD., & OTHERS

THEIR WORKMEN (P. B. GAJENDRAGADKAR, K. SuBBA RAO AND K. c. DAS GUPTA, JJ.)

Seasonal Industries-Unskilled workmen-Retaining allowance for off season-If wage structure to be raised in lieu of reta-ining

allowances.

The unskilled seasonal workmen of the.Bihar Sugar Industry, bulk of whom belonged to the landless labou.rer class, who ceased to have any contractual relation with the employers once the

February, xa

• • •

THE BIJAY COTTON MILLS LTD

ANOTHER (P. B. GAJENDRAGADKAR

K. c. DAS GUPTA, JJ.

Industrial Disputes Act

s. 2(a)(i)

Minimum Wages Act, 1948

Central Government

s. 2(a)(i)

B. C. Mills Ltd.

A. V. Viswa

natha Sastri

S. N. Andley

Dadachanji

neshwar Nath

B. D. Sharma

GAJENDR~GADKAR

December 1, 1950

Industrial Tribu! nal

D. N. Roy

s. 10(1)

Industrial Disputes Act, 1947

Roy

Ajmer

October 5, 1951

B. C. Mills Ltd

Gajendragadkar

October 20, 1952

Sharma

September 8, 1953

May 25, 1955

C. Jacob

January 25, 1956

Jacob

December 12, 1956

January 17,

1952

October 4, 1952

Octob(Jr 7, 1952

8, 1953

B. c. Mills Ltd.

Bombay

s. 30

Rajasthan

Beawar

Bijaynagar

Ajmer Government

January 8, 1953

Minimum Wages Act

Minimum Wages Act

A. V. Viswanatha Sastri

Sastri

B. c. ~lls Ltd.

Ajmer under the Minimum Wages Act

Art. 136

December 31, 1954

June 17, 1955

B. C. }1fills Ltd.

May 4, 1953

Sharma

s. 10(1)

s. 12(5)

First Schedule

s. 2(a)(i)

Section 2(a)(i)

s. 2(a)(i)

s. 2(a)(i)

ROHTAS SUGAR LTD

B. GAJENDRAGADKAR

K. SuBBA RAO

Bihar Sugar Industry


- ""\--

S.C.R.

SUPREME COURT REPORTS 989

appropriate Government as meaning, in relation to x96v any industrial dispute concerning any industry carried on by or under the authority of the Central Govern- B. c. Milts Ltd. b

~ mentor y a railway company or concerning any Their Workmen such controlled industry as may be specified in this b_ehalf by the Central Government, the Central Gajendragadkar ].

Government. The question which arises is: has the textile industry been specified as controlled industry in this behalf by the Central Government ? It is true that the textile industry is controlled by the provisions of Act 65 of 1951 and in that sense it is controlled industry ; but that would not be enough to attract the application of s. 2(a)(i) of the Act. What this latter provision requires is that the Central Government must specify "in this behalf" that the industry in question is a controlled industry; in other words the specification must be made by the Central Government by reference to, and for the purpose of, the provisions of the Act in order that the Central Government may itself become the appropriate Government qua such industry under s. 2(a)(i) of the Act. It.is conceded by Mr. Sastri that no such specification has been made by the Central Government. Indeed, we ought to add in fairness to Mr. Sastri that he did not very seriously press this. point.

The result is the appeal fails and is dismissed with costs.

Appeal dismissed.

M/S. ROHTAS SUGAR LTD., & OTHERS

THEIR WORKMEN (P. B. GAJENDRAGADKAR, K. SuBBA RAO AND K. c. DAS GUPTA, JJ.)

Seasonal Industries-Unskilled workmen-Retaining allowance for off season-If wage structure to be raised in lieu of reta-ining

allowances.

The unskilled seasonal workmen of the.Bihar Sugar Industry, bulk of whom belonged to the landless labou.rer class, who ceased to have any contractual relation with the employers once the

February, xa

• • •

z960 season \Vas over and on the commencement of the next season might or might not rejoin their employment, raised disputes over Rohtas Sugar Ltd. the question whether retaining allowances should be paid to them v. during the off season.

Their Wotkmen The Labour Appellate Tribunal inter alia awarded a retain-

• \

ing allowance to unskilled workmen, at a rate of 5% of the basic wage for the period of the off season to be paid every year at the beginning of the season, when they reported for duty.

The main contentions on behalf of the employer were that agriculture \Vas the primary occupation of these persons and the employment in the Sugar Factory was merely a subsidiary occupation, that claim for retaining allowance was really in the nature of unemployment relief which it was the duty of the State and not the industry to give, that the relationship of employer and employee did not exist in the off season and so no payment of anything in the character of wages could possibly be claimed by the labour.

Held, that the relief of unemployment by arranging suitable alternative employment or an alleviation of the distress of employment insurance benefits or by other modes though is primarily the function of the Government of the country, yet the industry where these workmen are. seasonally employed cannot look unconcerned and play no part in alleviating the distress of the people who have contributed to the prosperity of the industry by their labour though only for a part of the year.

In deciding whether the principle of social justice which it is the aim of industrial adjudication to apply to justify the payment of retaining allowance to unskilled workmen in these sugar industries it is necessary to take into account.

(a) opportunities of alternative employment in the off season that will be available to such workmen;

(b) the degree in which such workmen can be said to have become attached to the particular factory where they work;

(c) the likely benefit to the industry if such workmen are induced to return to the factory by the incentive of retaining a.llovo'ance to be paid when the season commences;

(d) the capacity of the il)dustry to bear 'the burden of retaining allo\vance.

Held, further, that for alleviating the distress of unskilled workmen in these Sugar Factories, a much better course \Vill be to raise the wage structure with an eye to this fact that for a part of the off season at least when they remain unemployed than to pay retaining allowance for the entire off season.

In the instant case the interests of both the employers and Jabour will be best served if the question of raising their wages in vie'v of the seasonal nature of their employment be raised before the wage board which has been entrusted with the task of fixing the wages of the workmen concerned in the present dispute, which will be considered sympathetically, specially as the employers have recognised the reasonableness of the claim .

CIVIL APPELLATE JURISDICTION: Civil Appeals r960 Nos. 717 to 742 of 1_957. . .

Rohtas Sugar Ltd.

Appeals by spemal leave from the dec1s10n dated v.

August 31, 1956, of the Labour Appellate Tribunal of Their Workmen India, Calcutta in Appeals Nos. (Cal.) 45 to 52, 59, 61-63, 65-78 and 98 of 1955.

A. B. N. Sinha and B. P. Maheshwari, for the appellants (in all the appeals). .

L. K. Jha and D. P. Singh, for respondents Nos. 1, 4, 5, 7, 8, 10, 14, 15, 21, 24, 26 to 30, 36, 37 and 39.

P.K. Chatterjee, for respondents Nos. 6, 9, 12, 17, 20, 22, 23, 25, 31 and 32.

L. K. Jha and R. 0. Prasad, for the Intervener. 1960, February, 12. The Judgment of the Court was delivered by

; DAS GUPTA, J.-These appeals are against the Das Gupta J. order of the Labour Appellate Tribunal of India at Dhanbad by which the Labour Appellate Tribunal coufirmed the order of the Industrial Tribunal awarding a retaining allowance to unskilled workmen at a rate of 5% of the bllsic wages for the period of the off season of numerous sugar industries in Bihar. The appellants-companies, the employers, in these sugar industries also challenge the correctness of the .order made by the Industrial Tribunal and confirmed by the Labour Appellate Tribunal awarding the workmen attending the proceedings before the Industrial Tribunal, wages, travelling allowance and halting allowance and further directing that the workmen attending these proceedings would be treated on special leave with pay for the period of such attendance.

As regards these orders the appellants contend that they run counter to the pronouncements of this Court

in Punjab National Bank Ltd. v. Sri Ram Kanwar, Industrial Tribunal, Delhi (1).

This contention, we are bound to say, is correct. Whatever might have been said in support of the view taken by the Tribunals in ordering payment of these allowances and of granting special leave to workmen attending proceedings of necessity, if the question was res integra we ar~ bound by th~ authority of Punjab National Bank's Gase (1) to

(1) [1957] S.C.R. 220.

• •

I960

Rohtas Sugar Ltd, v.

Their Workmen

Das Gupta].

hold that no such allowanoes are payable and no such order granting leave may be made. The order of the Tribunals below allowing travelling allowance and halting allowance and special leave to workmen attending proceedings of necessity, must therefore be set aside. Mr. Sinha, learned counsel for the appellants, however, has undertaken on their behalf that no restitution will be claimed of allowances which have already been paid.

This brings us to the main question in controversy in these appeals. That question is whether retaining allowance should be paid to unskilled workers in these industries during the off season. Disputes over this question have been going on for many years and committee after committee has wrestled with the problem for arriving at a formula acceptable to both employers and labourers but in vain. In 1950 a reference was ultimately made to Mr. Justice B. P.

Sinha (as he then was) as regards these disputes about retaining allowance.

The award made by him provided for retaining allowance to skilled and semiskilled workmen but none to unskilled workmen.

Before the Appellate Tribunal who heard the appeal against that award the labourers and employers came to an agreement that no retaining allowance would be payable to the unskilled workmen. . This award was in operation for a period of two years but was thereafter determined by notice given by; workmen followed up by similar notice by employers. The reference out of which the present appeals arise included several other matters-besides retaining allowance to seasonal employees, but with those we are no longer concerned in these appeals. Nor are we concerned with the question of retaining allowance to skilled and semiskilled workmen as that part of the award was not disputed by the present appellants.

On the question of retaining allowance the main contentions on behalf of the employers were that agriculture was the primary occupation of these persons and the employment in the sugar factory was merely a subsil.liary occupation, that the claim for retaining allowance was really in the nature of unemployment relief which it was the duty of the State and not the

., .

industry to give, that the relationship between the z96o employers and these employees does not exist in theR kt 5- Ltd ff d f h. . h o as ugar . o season an so no payment o anyt mg m t e v. character of wages could possibly be claimed by the Their workmen labour. The Tribunal overruled all these objections.

It was of opinion that the working season in the Das Gupta J. factory completely covers the paddy harvesting season in North Bihar, where most of the factories are situated so that the workmen the bulk of whom belong to the landless labourers' class in the rural areas do not obtain employment in the off season. It also pointed out that the seasonal employees are entitled to provident fund, gratuity and also bonus and that their connection with the employers is not broken during the off season. Accordingly it awarded retaining

ftllowance of 5% to all unskilled employees-to be paid every year at the beginning of the season when they report themselves to duty.

In agreeing with the Tribunal's conclusion the Appellate Tribunal pointed out further that the grant of seasonal allowance to unskilled labour in the industry would promote stability, good relations and efficiency. : The question whether the retaining allownce should be paid to seasonal workers during the off season :is one of great complexity. A measure of the complexity is provided by the conflict iri the view expressed by many committeeilwho examined the matter. While it will serve no useful purpose to set out these different views and the reasons given in. support thereof, it is proper to mention that with the exception of the Labour Enquiry Committee no committee ever recommended payment of retaining allowance to unskilled workmen, though several of these recommended payment of such allowance to skilled and semiskilled workmen. When the matter comes before the Tribunals for adjudication they have to decide the matter on the materials before them and it is not possible to derive much assistance from these reports of the committees. The real difficulty in coming to a conclusion lies in the fact that while there is no doubt on the one hand of the plight of the seasonal workmen during the off sason, if they during such period remain

• •

r960 prai:tically unemployed, there is some force also in - the argument that it is neither just nor fair to treat Rohtas Sugar Ltd. these unfortunate people as the special responsibility

Their ;; orkmen of the particular industry or the factory where they are seasonally employed. It is difficult not to agree Das Gupta]. with the opinion that the relief of unemployment by arranging suitable alternative employment or an alleviation of the distress of such seasonally unemployed persons by providing unemployment insurance benefits or by other modes is primarily the function of the government of the country. To say that, is, however, not to say that the industry where they are seasonally employed should look on unconcerned and play no part in alleviating the distress of the people who have contributed to the prosperity of the industry by their labour, even _though for only a part of th@ year. While these considerations on either side are common to claims for. retaining allowance for all seasonal workmen in all industries, the special facts and circumtances of the categories of workmen and different local circumstances in different industries play an important part in deciding the question.

Thus skilled and semi-skilled workers have often been able to put forward a strong case by pointing out that the specialized skill acquired by them makes it difficult for them to obtain suitable alternative employment in the off season.

Employers also often find it to their own interest to pay such categories of workmen, some retaining allowance as an inducement to them to return to their factories when the season commences. In the present appeals we are concerned with the case of unskilled workmen only. It is obvious as has been noticed by both the Tribunals below, that the employers feel that there is such a glut in the supply of unskilled labour in Bihar that retaining allowance or no retaining allowance a sufficient supply will be available for the industries.

That is why the employers contend that they ought not to be asked in an industrial adjudication to pay retaining allowance to unskilled labour. We do not think it will be fair to say that merely because the employers have agreed to pay retaining allowance to skilled labour their opposition to such payment of

t '

11'1119'

--~.

SOme SUCh allowance tO Unskilled labour is Unjustified.

I96o In deciding whefil:ter the pr.incipls f s?cial justice llohtas -;::; ar Ltd. which it is the aim of industrial adJud10at10n to apply v. justify the payment of retaining allowance to unskilled Their Workmen workmen in these sugar industries, it is necessary to take into account (a) the opportunities of alternative Das Gupta]. employment in the off season that will be available to such workmen; (b) the degree in which such workmen can be said to have become attached to the particular factory where they work; (c) the likely benefit to the industry if such workmen are induced to return to the factory by the incentive of retaining allowance to be paid when the season commences; (d) the capacity of the industry-to bear the burden of retaining allowance. The capacity of the appellant-employers to bear the additional burden resultant from the 5% retaining allowance ordered by the Tribunals below has not been disputed before us. The position is however far from clear as regards the existence of alternative opportunities available to unskilled labour in the off season. It was found, and we must proceed on the basis, rightly founa, that the orking season of the sugar industry in North Bihar, where most of the factories concerned in the present appeals are situated, completely covers the paddy harvesting season. That however is slender material for any conclusion as regards the existence of opportunities of alternative employment for these unskilled workmen: The appellate Tribunal has said that the grant of seasonal allowance to unskilled labour in the industry will promote stability, good relations and efficiency.

Except in so far as this conclusion is based on the general probabilit; y that newly recruited labour at the commencement of the season is likely to be less efficient and less disciplined than men who have worked in previous seasons, thi::i does not appear to have been based on any concrete evidence on the point.

Nor is it clear -from the materials on the record that unskilled workmen employed in a particular factory consider themselves attached to that factory. lt appears to be clear that once the season is over the unskilled workmen cease to have any contractual relations with the employers and may rejoin on the co.i; n-

• •

r960

Rohtas Sugar Ltd. v.

Their Workmen

Das Gupta].

• •

meneement of the season or may not rejoin at their sweet will.

As regards the observations of the Tribunal that "seasonal employees are entitled to the benefit of provident fund, gratuity and also bonus which shows that in faet their connection with the employers is not broken " the materials on the record are too scanty for arriving at any definite conolusion.

In consideration of the nature and extent of the materials on the record we are of opinion that for alleviating the distress of unskilled workmen in these sugar factories, with whom we are concerned in the present appeals a much better course will ba to raise the w:i, ge structure with an eye to this fact that for • a part of the off &eason at least when they remain unemployed than to pay i. retaining allowance for the entire off season.

The appallant's counsel readily agrees that the fact that these unskilled workmen find employment in the sugM factories only for a few m0nths and are in comparative difficnlty in the matter of finding employment during the remaining months, should be taken into consideration in fixing their wages.· We are informed that a Wage Board entrusted with the task: of fixing the wages of the workmen concerned in these disputes is sitting at the present time. The interests of both the employers and labour will, we think, be best served if instead of confirming the order made by the Appellate Tribunal M regards the retaining allowance the workmen will raise this question of raising their wages in view of the seasonal nature of their employment before this Wage Board. Wehaveno doub1lthat such a claim will be sympathetically considered by the Wage Board, especially as the employers have through their counsel, recognized before us the reasonableness of their claim. The appellants have through their counsel also undertaken that they will not claim restitution of the amounts already paid as retaining allowance and further that they will continue to pay the retaining allowance for the next season-half at the commencement of the season and the other half mid-way during the season-till the wages have been fixed by tha Wage Board. Accordingly we allow the appeals and set aside the order passed by the Labour

Appellate Tribunal of India, Dhanbad, as regards I96o retaining allowance to unskilled workmen and also -- its order as regards payment of halting allowance and Rohtas Sugar Ltd. travelling allowance and wages to workmen attending Their ;; orkmen proceedings of necessity of the Industrial Tribunal.

But as has been mentioned earlier the appellants have Das Gupta J. undertaken not to seek restitution as regards the halting or retaining allowance already paid and further that they will continue to pay r@taining allowance for the next season-half at the commencement of the s<Jason and the other half mid-way during the \ season-till the wages are fixed by the Wage Board.

There will be no order as to costs. \.

\ Appeal allowed.

• •

Central Govern- B. c. Milts Ltd.

""\--

appropriate Government as meaning, in relation to x96v any industrial dispute concerning any industry carried on by or under the authority of the Central Govern- B. c. Milts Ltd. b

~ mentor y a railway company or concerning any Their Workmen such controlled industry as may be specified in this b_ehalf by the Central Government, the Central Gajendragadkar ].

any Their Workmen

Central Government

the Central Gajendragadkar

s. 2(a)(i)

s. 2(a)(i)

Sastri

S. ROHTAS SUGAR LTD., & OTHERS

P. B. GAJENDRAGADKAR

K. SuBBA RAO

K. c. DAS GUPTA

Bihar Sugar Industry

Rohtas Sugar Ltd.

Jabour

Rohtas Sugar Ltd.

A. B. N. Sinha

B. P. Maheshwari

L. K. Jha

D. P. Singh

P.K. Chatterjee

L. K. Jha

. Prasad

DAS GUPTA

Das Gupta

Bihar

Punjab

Punjab National Bank

Rohtas Sugar Ltd

Sinha

B. P.

Sinha

North Bihar

Das Gupta

Das Gupta


SUPREME COURT REPORTS

[1960J

z960 The only other point that was argued at the bar . - . was a question of fact, namely, whether the corrupt Shri Bal wan Singh practice alleged had been proved. On that point

;;.,; I am in perfect agreement with the view expressed Lakshmi Narain by my learned brothers and have nothing to add.

Sarkar ].

z960

February, 24

Appeal dismissed.

THE STATE OF VINDHYA PRADESH

(NOW MADHYA PRADESH)

MORADHWAJ SINGH AND OTHERS

(B. P. SINHA, c. J., JAFER IMAM, A. K. SARKAR, K. N. WANCHOO AND J. c. SHAH, JJ.)

] agirs, Abolition of-Constitutional validity of enactment- V indhya Pradesh Abolition of J agirs and Land Reforms Act, I952

(XI of I952), ss. 22(r), 37, Schedule cl. (4)(e)-Code of Civil Procedure (Act V of I908), s. 9-Constitution of India, Art. JI A. ;.

These appeals raised the question of constitutional validity of the Vindhya Pradesh Abolition of Jagirs and Land Reforms Act, 1952 (XI of 1952). Applications were made before the Judicial Commissioner under Art. 226 of the Constitution on the ground that various provisions of the Act placed unreasonable restrictions on the exercise of the fundamental rights guaranteed by the Constitution. The Judicial Commissioner held that the Act, excepting s. 22(1), s. 37 and cl. (4)(e) of the Schedule to the Act, was constitutionally valid. The State appealed against that part of the order which declared the three provisions unconstitutional and one of the petitioners appealed against the order declaring the rest of the Act constitutional.

Held, that the appeal OD the State must be allowed and that of the petitioner dismissed.

It was not correct to say that s. 22 of the Act, which lays down the scheme for giving effect to s. 7(a) of the Act which permits the Jagirdars to remain in possession of certain lands even after the abolition of their jagirs, is a piece of colourable legislation and, therefore, ultra vires the Legislature. That section cannot be said to discriminate as between jagirdars on the one hand and other occupants of land, to whom s. 28(1) applies, on the other, since they belong to distinct and different classes.

,....,

Even assuming that they belong to the same class and s. 22 r960 is discriminatory, that section is protected by Art. 31A of the Constitution.

State of V. P.

The question as to colourable legislation is really one v.1 relating to legislative competency and there can be no doubt that Moradhwaj Singh the Vindhya Pradesh Legislature was perfectly competent to enact the impugned provisions under Entry 18, List II of the Seventh Schedule to the Constitution.

K. C. Gajapati Narayan Deo v. The State of Orissa. [1954] S.C.R. l and Raghubir Singh v. The State of Ajmer (Now Rajasthan). [1959] Suppl. (1) S.C.R. 478, relied on.

There was no substance in the contention that s. 37 of the Act is repugnant to s. 9 of the Code of Civil Procedure and consequently ultra vires the State Legislature. The Vindaya Pradesh Legislature had undoubtedly the power under Entry 3, List II of the Seventh Schedule to make a provision likes. 37 of the Act and, once it did so, the last part of s. 9 of the Code would apply and the jurisdiction of the Civil Courts would be barred by s. 9 of the Code read with s. 37 of the Act.

Nor was it correct to say that cl. (4)(e) of the Schedule deprives the J agirdar of his proprietary interest without compensation. Although he may have to pay rent for the land remaining with him, no revenue for such land was any longer payable by him and the revenue is taken into account in assessing compensation.

The entire Act, therefore, falls within the protection of Art. 31A of the Constitution and, in view of the decisions of this Court, its constitutional validity is beyond question . . Case-law referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 40 to 110of1955.

Appeals from the judgment and order dated November 12, 1953, of the former Judicial Commissioner's Court, Vindhya Pradesh, Rewa, in Misc.

Applications (Writ} Nos. 51 to 119 and 121 of 1953.

0. K. Daphtary, Solicitor-General of India, M. Adhikari, Advocate-General for the State of 11I adhya Pradesh and I. N. Shroff, for the appellant (in C.As. Nos. 40 to 109 of 55) and respondent (in C.A. No. 110/55).

K. B. Asthana, S. N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the respondents (in C.As. Nos. 40, 51, 52, 54, 65 and 100/55) and appellant (in C.A. No. 110/55).

1960. February, 24. The Judgment of the Court was delivered by

r960 W ANCHOO, J.-These sevety-one appeals on certificates granted by the Judicial Commissioner ofVindhya State of v. P.

Pradesh arise out of seventy petitions under art. 226

Moradh; j Singh of the Constitutio_n filed befor~ that Court challengin~

the constitutionality of the V mdhya Pradesh Aboh- Wan, hoo J. tion of Jagirs and Land Reforms Act, No. XI ofl952, (hereinafter called the Act). They were disposed of by a common judgment by the Judicial Commissioner.

We shall also dispose of these appeals, by a common judgment. Seventy (Nos. 40 to 109), out of these appeals, are by the State of Vindhya Pradesh (now Madhya Pradesh) while one (Ko. llO) is by the Brijindar Singh, a jagirdar.

The case of the petitioners in the Court of the Judicial Commissioner was that the Act was unconstitutional as various provisions in it placed an unreasonable restriction on the exercise of the fundamental rights guaranteed to the petitioners under Part III of the Constitution. The Judicial Commissioner held that the Act was constitutional, except for three provisions thereof, namely, s. 22(1), s. 37 and cl. (4) (e) of the Schedule to the Act. The seventy appeals by the State are with respect to this part of the order declaring these three provisions unconstitutional. The appeal of Brijindar Singh is against that part of the order by which the rest of the Act was held constitutional.

We shall first deal with the appe11.l of Brijindar Singh. Learned counsel . for Brijindar Singh was unable-and in our opinion rightly-to challenge the constitutionality of the Act as a whole in view of art. 31-A of the Constitution and the decisions of this Court in The State of Bihar v. Maharajadhiraja Sir Kameshwar Singh (1), Visweshwar Rao v. The State of Madhya Pradesh (2), Raja Suriya Pal Singh v. The State of U.P. (3), K. G. Gajapati Narayan Dea v. The State of Orissa ('), Thakur Amar Singhji v. The State of Rajasthan ('), Raja Bhairebendra Narayan Bhup v.

The State of Assam (6), Sri Ram Ram Narain v. The State of Bombay ('), Raghubir Singh v. The State of Ajmer (now Rajasthan) (8) and Atma Ram v. The State of Punjab ('), relating to similar legislation in the (I) [r952) S.C R. 889.

(2) [r952] S.C R. ro20.

(3) [1952) S.C.R. 1056.

(4) [r954] S.C.R. I.

(5) [1955J 2 S.C.R. 303.

(6) [r956] S.C.R. 303,

(7) [r959] Suppl. (I) S.C R. 489

(8) [r9;9] Suppl. (I) S.C.R. 47• \9) [r959] Suppl. (r) S.C.R. 74~.

' -

-; -

States of Bihar, Madhya Pradesh, Uttar Pradesh r96o Orissa, Rajasthan, Assam, Bombay, Ajmer and Punjab.

State of V, P.

It is not necessary therefore to examine the provisions v. of the Act in detail. In the circumstances, Appeal Moradhwaj Singh No. 110 is dismissed; but as it was not pressed we think it right that the parties should bear their own Wanchoo J. costs of this appeal.

Now we turn to the appeals by the State. The object of the Act is to resume jagir-lands. Sec. 5 provides for the appointment of a date for the resumption of any class of jagir-land by notification and power is given to the State Government to fix different dates for different classes of jagir-lands. Sec. 6 provides for the consequences of such resumption. Sec. 7, however lays down that notwithstanding anything contained in s. 6, certain lands will remain in possession of jagirdars and cl. (a) thereof is material and may be quoted here-

" The jagirdar shall continue to remain in possession of his sir and khudkasht to the extent and subject to the conditions and restrictions specified in

Ch. IV." Seo. 10 and the subsequent sections appearing in Ch. III of the Act provide for compensation and the Schedule provides the manner in which the compensation shall be computed. Then comes Ch. IV, which deals with sir and khudkasht lands. Sec. 20 provides for an application by the jagirdar for allotment of land for personal cultivation. Sec. 21 provides for an enquiry by the Tahsildar on such application in the prescribed manner, and the allotment of!land and the issue of a patta thereof to the jagir<lar having regard to the remaining provisions of the Chapter. Then comes s. 22, which may be quoted in full-·

" ( l) A jagirdar shall be allotted all sir and khudkasht lands which he was cultivating personally for a continuous period of three years immediately preceding the date of resumption.

"(2) A jagirdar whose jagir-lands have been resumed under this Act- ( a) who is not allotted any sir or khudkasht land under sub-section (1), or

State of V. P. v.

M orad!iwaj Singh

Wanchoo ].

(b} who had been allotted any such land which is less than the minimum area, may ifhc applies in1this behalf, be allotted any other sir or khudkasht land in his personal cultivation at the date of resumption or where there is no such land or sufficient area o~ such land any unoccupied cultivable waste land in the jagir-land subject to availability of such land, so that-

(i) in a case falling under cl. (a), the total area allotted to him under this sub-section is equal to the minimum area, and

(ii) in a case falling under cl. (b ), the area allotted to him under this sub-section together with the area allotted under sub-section (1) is equal to the minimum area.

Explanation-In this sub-section, the expression 'minimum ' means ten per cent. of the total cultivated land in the jagir-land at the date of resumption or 30 acres whichever is greater: Provided that in no case the minimum area shall exceed 250 acres."

Chapter V deals with rights of tenants, grove holders and occupants in jagir-land and confers certoiin benefits on them. Chapter VI provides for the machinery and the procedure for carrying out the purposes of the Act.

The last section (42) gives power to the State Government to make rules to carry out the purposes of the Act.

The learned Judicial Commissioner has held that s. 22(1) is a colourable piece of legislation. The scheme of s. 22 is to give effect to s. 7(a) by which certain lands were allowed to remain in the possession of the jagirdar. Section 22(1) lays down that all sir and khudlcasht lands which a jagirdar was cultivating personally for a continuous period of three years immediately preceding the date of resumption shall be allotted to him by the Tahsildar:. Sub-section (2) provides for. those cases where there is no land which can be allotted to a 'jagirdar under sub-s. (1) or where the land, which can be allotted to him under sub-section ( 1) is less than the minimum area as defined in the section. In such a case the jagirdar can be allotted any other sir or khudkasht land in his personal culti.

vation at the date of resumption upto the minimum

- x960 area. Where, however, the minimum is not reached even after such allotment, the jagirdar can be allotted State of v. P. under sub-s. (2) any unoccupied cultivable waste land Moradh~j Singh in the jagir subject to availability of such land upto that area. The minimum area means ten per cent. of Wanchoo J. the total cultivated area in the jagir at the date of resumption or 30 acres whichever is greater subject to the proviso that in no case the minimum area shall exceed 250 acres. In other words, s. 22 (1) provides that in the first instance 'the jagirdar will get all his sir and khudkasht land which he had been cultivating for three years continuously before the date of resumption. If, however, there is no such land or if the land of this kind allotted to a jagirdar is less than the minimum area he will be entitled to further allotment out of the sir or khudkasht land in his possession for less than three years to make up the minimum area.

Lastly if the minimum area is not made tip even by allotment of such land which has been in the jagirdar's possession for less than three years he will be entitled to allotment of unoccupied cultivable waste land subject to availability of such land to make up the minimum area ; but the provisions of sub-s. (2) are subject to a minimum of 250 acres.

We have not been able to understand how these provisions can be called a piece of colourable legislation. The learned Judicial Commissioner seems to be of the view that as a period of three years' continuous cultivation is made a condition of allotment under s. 22(1), there is ' discrimination between jagirdars and other occupants of land in whose case s, 28(1) provides that every person who is entered in the revenue record as an occupant of any jagir-land at the date of resumption,

shall be deemed to be pattadar tenant in respect of such land which shall be assessed at the village rate.

The learned Judicial Commissio:ier was not unconscious of the provisions of art. 31-A which lays down that no such legislation would be struck down on the ground of discrimination under art. 14. He however thought that this was an extra condition which had been imposed so that the jagirdar might be deprived of as much sir and khudkasht land as possible subject

'96° to the minimum and that this was done to create inst 1 1 v P convenience to the jagirdars whom the legislature did a'

• • not like. He therefore thought that such legislation

Moradh:j Singh was altogether outside the power of the legislature and was invalid as a colourable piece of legislation.

Wanchoo J.

In the first place we cannot see how any discrimination can arise in circumstances like this, for the jagirdars are obviously one class while the occupants of lands other than jagirdars belong to another class.

Secondly, even if it could be held that jagirdars and other occupants of land stood in the same class and there was discrimination under s. 22(1) as compared to s. 28(1), such discrimination could not be a ground" for striking down s. 22(1) in view of the specific constitutional provision in art. 31-A. It was because of this difficulty that the learned Judicial Commissioner did not strike down s. 22(1) on the ground of discrimination but held that it was a colourable piece of legislation. What is a colourable piece of legislation has been laid down by this Court in K. 0. Gajapati Narayan Deo v. The State of Orissa (1). It was pointed there that :-

"The question whether a law was a colourable legislation and as such void did not depend on the motive or bona jides of the legislature in passing the law but upon the competency of the legislature to pass that particularlaw, and what the courts have to determine in such cases is whether though the legislature has purported to act within the limits of its powers, it has in substance and reality transgressed those powers, the transgression being veiled by what appears, on proper examination, to be a mere pretence or disguise.

The whole doctrine of colourable legislation is based upon the maxim that you cannot do indirectly what you cannot do directly." Applying this principle it is obvious that the Vindhya Pradesh legislature in this case had full competence to make this provision under Entry 18, List II of the Seventh Schedule. There is no question here of transgressing those powers and veiling the transgression under a pretence or disguise.

We do not think it was proper for the Judicial Commissioner to

(1) [1954] s.c.R. (1)

ascribe motives to the legislature as he seems to have

I960 done by sayii; ig that the provision was mae for crea.t- State of v. P. ing inconvemence to a class whom the legislature did

not like. Nor do we think that there is any force in Moradh:j Sint:h the argument that art. 31-A has no application to provisions dealing with allotment of land, for ss. 7 and Wanchoo J. 22 of the Act work out the scheme of acquisition of estates and are incidental provisions which are equally protected under that Article along with the main provisions contained in ss. 5 and 6 of the Act; (see Raghubir Singh v. The State of Ajmer (now Rajasthan) (1).

The provisions of s. 22 as a whole provide a scheme for carrying out the intention of the legislature expressed in s. 7(a) of the Act and are in our opinion perfectly constitutional.

We now turn to s. 37 of the Act. That section appears in the procedural part of the Act and is as follows:- "(1) No civil court shall have jurisdiction to settle, decide or deal with any question which is, by or under this Act, required to be settled, decided or dealt with by the Tahsildar, the Deputy Commissioner, the Land, Reform Commissioner, or the Board of Revenue.

(2) Except as otherwise provided in this Act no order of a Tahsildar, a Deputy Commissioner, the Land Reform Commissioner, or the Board of Revenue under this Act shall be called in question in any court." Sub-s. (1) thus takes away the jurisdiction of the civil court to decide any matter which under the Act is to be decided by the Tahsildar, the Deputy Commissioner, the Land Reform Commissioner or the Board of Revenue. Sub-s. (2) provides that no order passed by any of these authorities shall be called in question in any court. The learned Judicial Commissioner has held this section in valid on the ground that it is repugnant to s. 9 of the Code of Civil Procedure, inasmuch as it takes away the jurisdiction of the civil court which it has under that section. Sec. 9 lays down that the civil courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

(1) (1959] Suppl. (t) S C.R. 478

z960 sec. 9 therefore gives jurisdiction to civil courts to try all suits of a civil nature excepting . those which are StateofV. P. expressly or impliedly barred by any other law. The

M dh v .. 5 . h provision of 8. 37 is an express bar to the matters dealt ora w•J ing with in the Act being agitated in civil courtH.

The

wanchoo J; learned Judicial Commissioner seems to think that s. 9 takes away the power of the legislature ofa Part C State like Vindhya Pradesh to legislate with respect to the jurisdiction of courts. The power to the legislature is given by Entry 3, List II and cannot be affected by s. 9 of the Code of Civil Procedure. As a matter of fact s. 9 recognises that if a competent legislature passes a law barring the jurisdiction of a civil court, the jurisdiction of the civil court to take cognizance of such suit, even though of a civil nature, is ousted. It was in our opinion unnecessary to go into s. 22 of the Government of Part C States Act, No. XLIX of 1951 and compare it with art. 254 of the Constitution in this connection. Sec. 37 does not in any way affect s. 9.

All that it provides is that civil courts shall ha.ve no jurisdiction to hear certain matters of a civil nature ; and s. 9 expressly recognizes that if such a provision is made by any Jaw, the jurisdiction of the civil courts will disappear. There is thus no question of any repugnancy between s. 9 of the Code of Civil Procedure and s. 37 of the Act. The legislature in this case h1td power to make a provision like s. 37 and once it did so, the last part of s. 9 will apply and the jurisdiction of the civil courts will become barred by virtue of s. 9 read with s. 37 of the Act. The decision of the Judicial Commissioner therefore that s. 37 is ultra vires the powers of the Vindhya Pradesh legislature is not correct.

Lastly we come to cl. (4) (e) of the Schedule. The Schedule provides for the method of computing compensation. Clause (3) lays down the manner in which the gross income "of a jagirdar shall be arrived at.

Clause (4) lays down how net income will be arrived at after making certain deductions. One of these deductions is in sub-cl. (e) of this Clause, which is as follows:-

" Where the jagirdar is allotted any sir or khudlcasht or other land or any grove under this Act an

f

amount equal to the valuation of rent for such land z960 or grove for the basic year at the current settlement 5 1 v P rates (less the land revenue paid by him in respect tate

• • of such land and grove in the basic year to be Mo dh:~. s gh ascertained in such manner as may be prescribed)." ra 1 •n This sub-clause is in fact a contra entry to sub-cl. (b) (i) wanchoo J. of cl. (3).

The inethod of calculation provided by these two clauses is that the gross income is first arrived at without taking into account the land which remains with the jagirdar under s .. 7 (a).

Thereafter in order to arrive at th!3 net income for the purpose of compensation the rent for sir and khudkasht land which remains with the jagirdar is taken into account and its value determined under cl. (3) (b) (i) minus the revenue payable in respect thereof. This is then deducted from the gross income, for the reason that this land remains with the jagirdar. The learned Judicial Commissioner thinks that the arithmetical result of this provision is that so far as these ]ands are concerned the landlord has lost his proprietary interest and has to pay rent to the government, but at the same time gets no compensation.

It should however be noted that though the landlord may have to pay rent in future for the land remaining with him, he does not pay any revenue which was payable by him so far with respect to such land. In the circumstances, it c; annot be said that he has been deprived of the proprietary interest without any compensation, for he is relieved of the charge of paying land revenue which has also been taken into account in arriving at the net assets for that purpose, and that is all that he can expect considering that the land remains in his possession for all other purposes.

We are therefore of opinion that there is nothing uncont1titutional in cl. (4) (e) of the Schedule.

We therefore dismiss Appeal No. 110 but order parties to bear their own costs. _We allow Appeals Nos. 40 to 109 and hold that s. 22 {l), s. 37 and

cl. (4) (e) of the Schedule are valid and constitutional.

As the respondents in these appeals have not seriously contested them we or!fer parties to bear their own costs.

Appeal No. 110 dismissed.

Appeals ljos. 40 to 109 allowedi.

Bal wan Singh

Lakshmi Narain

Sarkar

MORADHWAJ SINGH AND OTHERS

B. P. SINHA

JAFER IMAM

K. N. WANCHOO

c. SHAH, JJ.

ss. 22(r), 37

Code of Civil Procedure

s. 9

Constitution of India

Art. 226

s. 22(1)

s. 37

s. 22

s. 7(a)

s. 28(1)

s. 22

Art. 31A

State of V. P.

Moradhwaj Singh

Vindhya Pradesh Legislature

Seventh Schedule

s. 37

s. 9

the Code of Civil Procedure

Vindaya Pradesh Legislature

Seventh Schedule

s. 9

s. 9

s. 37

Art. 31A

K. Daphtary

M. Adhikari

I. N. Shroff

K. B. Asthana

S. N. Andley

J. B. Dadachanji

Rameshwar Nath

P. L. Vohra

r960 W ANCHOO

art. 226

Jagirs and Land Reforms Act

State of Vindhya Pradesh

Madhya Pradesh

Brijindar Singh

s. 22(1)

s. 37

art. 31

Sec. 5

Sec. 6

Sec. 7

s. 6

Sec. 20

Sec. 21

s. 22

s. 22(1)

s. 22

s. 7(a)

Section 22(1)

Moradh~j Singh

Wanchoo

s. 22

s. 22(1)

art. 31

art. 14

s. 22(1)

s. 28(1)

s. 22(1)

art. 31

s. 22(1)

Vindhya Pradesh legislature

Seventh Schedule

Moradh

art. 31

ss. 7

ss. 5 and 6

s. 22

s. 7(a)

s. 37

s. 9

the Code of Civil Procedure

Sec. 9

sec. 9

wanchoo

s. 9

Vindhya Pradesh

s. 9

the Code of Civil Procedure

s. 9

s. 22

art. 254

Sec. 37

s. 9

s. 9

s. 9

the Code of Civil Procedure

s. 37

s. 37

s. 9

s. 9

s. 37

s. 37

s. 22

s. 37


F ebru, ary 26

SUPREME COURT R, EPORTS [1960)

MOHAMED DASTAGIR v.

THE STATE OF MADRAS (B. P. SINHA. c. J., JAFER IMAM, A. K. SAHKAR,

K. N. W ANCHOO AND J. C. SHAH. JJ)

Fundamental Right-Protection against conviction-Police Officer refusing offer of bribe, but nshing accused to produce notes-Such production, if under compulsion-Conviction based on such notcs-

V alidity-Constitution of India, Art. 20 (J). Apj>eal against acqu.ittal-Appearancc by Counsel for accused in appeal-Non-service of notice on accused, ifkvitiates conviction-Code of Criminal Procedure, I898 (Act v of I898,) s. 422.

The appellant was tried by the Special Judge Tiruchirappalli under s. r65A of Indian Penal Code for attempting to bribe K, a Deputy Superintendent of Police.

The prosecution case was that in connection with the investigation by the Inspector of Police of a case involving the appellant, the latter went to K's bungalow and presented to him a closed envelope, that when °K found that it contained currency notes he threw it away which the appellant picked up, that thereupon K asked the appellant to produce the currency notes and the appellant complied with the demand that K then gave information to a Magistrate about the attempt made by the appellant to offer him a bribe. The Special Judge acquitted the appellant. On appeal, the High Court accepted the prosecution case and convicted the accused. In the High Court Counsel for the appellant entered appearance before notice of appeal under s. 422 of the Code of Criminal Procedure was issued to the appellant and when the appeal was ready for hearing intimation was given under therulestotheSpecial judge to communicate to the appellant about the appeal filed against him. The questions for determination-were (1) \vhether the protection under Art. 20(3) of the Constitution of India had been violated by asking the accused to produce the currency notes, and (2) whether the provisions of s. 422 of the Code of Criminal Procedure, had not been complied \Vi th because notice of the appeal had not been served on the appellant.

Held, (r) that there was no contravention of Art. 20(3) as the appellant v.1as not in the position of a person accused of an offence \vhen he v.'as asked to produce the currency notes and that, in any case, on the facts proved the appellant was not compelled to be a witness against him.

M. P. Sharma v. SatishChandra and others,[r954]S.C.R. ro77. considered.

(2) that in an appeal under s. 417 of the Code of Criminal Procedure under s. 422 notice of the appeal has to be given to the accused, but where, as in the present case, the High Court

found on the facts that the appellant was fully apprised of the time and place at which the appeal would be heard, and counsel

appeared on his behalf and argued the appeal the fact that a forr960 mal notice of the appeal was not served on him would not vitiate - the conviction.

Mohamed Dastagir CRIMINAL APPELLATE JURISDICTION: Criminal v.

Appeal No. 137 of 1957.

State of Madras Appeal from the judgment and order dated October 31, 1956, of the Madras High Court in Criminal Appeal No. 20/1956. C. B. Aggarwala, S. N. Andley, J.: B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the appellant.

R. Ganapathy Iyer and T. M. Sen, for the respondent.

C. K. Daphtary, Solicitor-General of India, H.J.

Umrigar_ and T. M. Sen, for the Intervener (Union of India). 1960, February, 26.

The Judgment of the Court was delivered by IMAM, J.--This is an appeal on a certificate granted by the High Court of Madras.

The appellant was tried by the Special Judge of Tiruchirappalli under s. 165A of the Indian Penal Code for attempting to bribe Mr. Kaliyappan, Deputy Superintendent of Police of Ramanathapuram. The Special Judge came to the conclusion that the charge framed against the accused had not been established.

He, accordingly, acquitted the appellant. Against the order of acquittal the State of Madras appealed to the High Court of Madras under s. 417 of the Code of Criminal Procedure. The High Court came to the conclusion that the evidence established that the appellant had attempted to bribe the aforesaid Deputy Superintendent of Police. It accordingly convicted the appellant under s. 165A, Indian Penal Code and sentenced him to 6 month's rigorous imprisonment and a fine of Rs. l ,000, in default, to undergo further rigorom1 imprisonment for 6 months.

According to the prosecution case, the appellant attempted to bribe Mr. Kaliyappan, the Deputy superintendent of Police, by offering him a sum of money contained in an envelope at his bungalow in the morning of June 14, 1954. In order to appreciate the circumstances in which the bribe was offered, reference to certain events which led to the incident

Imam].

118 SUPREME COURT Rl~PORTS [1960]

r96o on June 14 at the bungalow of the Deputy Superin-

M h d D . tendent of Police becomes necessary. In village o ame aslagir I d" h . v rwa I t ere are two fact10ns one headed by the State of Madras appellant and his brother and the other headed by the village munsif. On June 3, 1954, two complaints Imam J. reached the Keelakarai Police Station, one by the appellant against the village munsif and the other by the village munsif against the appellant. According to the appellant on June 3, 1954 after prayers in the mosque the village munsif had abused him and had attemphid to murder him with a knife. Some persons intervened but he managed to escape but was chased by the village munsif to his house. 'The version of the village munif was that he was busy that day preparing the receipt for the release of the appellant's impounded cattle when the latter abused him, beat him with his shoe and kicked him in the stomach causing minor injuries. On June 5, 1954, the appellant met Mr. Kaliyappan at the Central Bus-stand at Madurai and handed over to him a petition, Ext. P-1 in which he complained against the village munsif.

Mr. Kaliyappan made an endorsement on this petition directing the Inspector of Ramanathapuram Circle to send for both the parties and warn them against doing acts which would create a breach of the peace in the village and that this petition was not to be sent to the Sub-Inspector (P. W. 8) as .it was alleged that he was siding against the appellant. On June 12, 1954, Mr. Kaliyappan sent a memo (Ext. P-2) to the Inspector of Ramanathapuram Circle directing him to take steps to see that peace was preserved in the village. This Police Officer was also asked to take action against the offenders with respect to whom there was evidence in connection with the occurrence of June 3, 1954. Mr. Kaliyappan also, in view of the situation, had directed this Police Officer to see whether steps should not be taken to seize the revolver of the appellant's brother Rashid for which he had a licence. The Inspector of Ramanathapuram Circle thereafter prepared a detailed report (Ext. P-7) of the result of his enquiry and handed it over to Mr. Kaliyappan on June 13, 1954. On the night of June 13, 1954, at about 10 p.m. the appellant went to the

bungalow of Mr. Kaliyappan, the Deputy Superinz960 tendent of Police, at Ramanathapuram and com- M h - .. l • d . t th I . t f p l" fR th o amedDastagzrp ame agams e nspec or o o rne o _ amana av. puram circle and the Sub-Inspector requesting the State of Madras Deputy Superintendent of Police to look into the matter personally and not to leave the investigation Imam .I. exclusively in the hands of the Inspector. Mr. Kaliyappan told the appellant that he knew nothing about the case and could not say or do anything off hand and that the appellant should see him about a week later by which time he would have perused the record and would be in a position to look into his grievances. According to the appellant, however, the Deputy Superintendent of Police had asked him to come to him next morning.

On June 14, 1954, according to the prosecution, the appellant went to Mr. K!tliyappan's bungalow at about 7-15 a.m. who was at that time looking ip.to certain papers. He was informed that a visitor had come to see him. The appellant accordingly entered his office room when he again complained to the Deputy Superintendent of Police against the village_ - munsif. At the same time he presented to this Police Officer a closed envelope. Mr. Kaliyappan thought that the envelope contained a petition but on opening it he found that it contained currency notes. He was annoyed at the conduct of the appellant. He threw the envelope at the appellant's face, but the envelope fell down on the floor and the appellant picked it up. The Deputy Superintendent of Police called his office orderly but as there was no response he went out of the office room and told his milk-maid to get the camp clerk. By that time the orderly turned up. The appellant had in the meantime remained in the office room and on the appearance of the orderly Mr. Kaliyappan asked the appellant to produce the envelope which he had thrown down and which the appellant had picked up. The appellant_ after taking out of his pocket some currency notes placed them on the table without the envelope.

Subsequently,. during the police investigation, torn bits of paper were collected from near the office winqow and it is alleged that those torn bits of paper

120 SUPREME COURT l~EPORTS [1960)

z960 were the pieces of the envelope in which the currency

~ h -;;-;; . notes were presented to Mr. Kaliyappan. Thereafter, .fo ame v. astag" Mr .. Kaliyappan asked his orderly to put office rubber

State of Madras stamp date seal on the notes and the same was done.

By .that time the camp clerk, P.W. 2 had arrived.

Imam J.

Mr. Kaliyappan asked the camp clerk to note down the numbers of the currency notes which he did. The list so. prepared is Ext. P-4. Mr. Kaliappan then dictated the memo. Ext. P-5 to the local Sub-Magistrate informing the latter that the appellant had offered him Rs. 500 in currency notes requesting him to "drop action" registered against the appellant at Keelakarai Police Station. Mr. Kaliyappan informed the Magistrate in this connection that he had seized the currency notes and his office rubber stamp seal had been placed on them and that he would be grateful to the Magistrate if he would come to his office and record the statement of the appellant whom he had detained in his office.

The case of the appellant, as would appear from his statement to the Special Judge, was that he had been to Mr. Kaliyappan, the Deputy Superintendent of Police, in the night of June 13, 1954, and in the morning at 7-15 a.m. on June 14, 1954. He had gone to Mr. Kaliyappan's bungalow in the morning of June 14 as he had been requested to do so.

He had told the Deputy Superintendent of Police that he had been humiliated by his Police Officers who had arrested him and had searched his house and that Mr. Kaliyappan should redress his grievances.

Mr. Kaliyappan showed him scant courtesy and insulted him upon which the appellant told Mr. Kaliyappan not to insult him and that he should tell the appellant whether he would redress the grievances of the appellant or not and that if he was not prepared to redress the grievances, the appellant would take the matter to the higher authorities. On this Mr. Kaliyappan got up from his chair and enquired of the appellant what could he do by going to the higher authorities and threatened to beat the appellant. The appellant also got up and said something to him upon which Mr. Kaliyappan called out for his orderly.

The orderly came and was told by Mr. Kaliyappau

...

3 S, Q.R. SUPREME COURT RRPO-RTS 121

that he was going to be beaten by the appellant and z96o . therefore he should catch hold of the appellant whichM , -d. -D- 1 . . • . 011ame as agir the orderly did. Then Mr. Kahyappan told the orderly v. that there was money in the appellant's pocket and State of.Madras

that he should remove it. The orderly accordingy removed the money from the appellant's pocket and Imam f. gave it to Mr. Kaliyappan. The money in his pocket was Rs. 500.

Mr. Kaliyappan then directed his orderly to put his seal on the notes.

The Special Judge gave various teasons for not accepting the uncorroborated testimony of Mr. Kaliyappan and held that the presumption of the innocence of the accused had not been displaced by his solitary testimony. The High Court did not coneider

the grounds given by the Special Judge for discarding the testimony of Mr. Ka.liyappan as at all justified and was of the opinion that the Special Judge had taken a perverse view of his evidence and of the other evidence in the case.

In the main three points were urged in support of the plea that the conviction of the appellant should he set aside. The first . point urged was that the provisions of s. 422 of the Code of Criminal Procedure had not been complied with. Accordingly the High Court judgment setting aside the acquittal of the appellant was vitiated. The second point urged )Vas that there had been violation of the provisi6ns of Art. 20(3) of the Constitution which vitiated the conviction. The third point urged was that the appellant having been acquitted by .the Special Judge the High Court should not have set aside the acquittal unless there were compelling reasons. The several grounds .stated by the Special Judge in distrusting the evidence of Mr. Kaliyappan had not been specifically considered by the High Court and without those grounds being displaced the High Court erred in setting aside the order of acquittal passed by the Special Judge. Lastly, it was urged that in the circumstances of the present case the sentence passed by the High Court was severe. The circumstances relied upon in this connection will be stated in due course.

Regarding the first point a few facts have to be stated, The State's appeal agsiiinst the acquittal of

t<i

•960 the appellant was admitted by the High Court on - . February 22, 1956. Appearance on behalf of the MohamedDastagir appellant was filed on February 24, 1956. The advo-

State 0; adras cates for the appellant were M/s. V. L. Ethiraj and

S. M. Cassim. One Mr. R. Santanam, an advocate Imam J. who worked . in the office of the partnership of M/s. V. L .. Ethiraj & V. T. Rangaswami Ayyangar, wrote to the High Court office on February 27, 1956, requesting that summons need not be issued and compliance with rule 240A, Criminal Rules of Practice, might be dispensed with, in view of the appearance for the appellant having been filed on February 24,

1956. As appearance had been entered on behalf of the appellant even before the issue of notice to him, notice under s. 422 of the Code of Criminal Procedure was issued by the Court on March 5, 1956,. to M/s Ethiraj and Cassim, advocates for the appellant on the records of the High Court. After the appeal was ready for hearing the usual intimation under rule 240A was also sent on September 4, 1956, to the Special Judge, Tiruchirappalli for being communicated to the appellant as it was the practice of the High Court not to dispense with altogether the issue of such intimation under any circumstance. Mr. Ethiraj appeared for the appellant at the hearing of the appeal and made submissions on questions of fact as well as on questions of law before the learned Judge of the High Court who heard the appeal. It was contended for the appellant that the latter part of s. 422 of the Code had not been complied with inasmuch as the High Court did not cause a notice of the appeal to be given to the appellant. Reliance was placed on certain decisions of this Court and some of the High Courts in support of the argument that the pr.ovisions of s. 422 of the Code were mandatory and non-compliance thereof vitiated the judgment of the High Court. In Criminal Appeal No. 86 of 1952, Hanumat v. The State of Madhya Pradesh (unreported) decided on the 13th of November, 1952, this Court set aside the order of the High Court converting the acquittal of the accused into one of conviction without serving a notice on him as provided by s. 422 of the Code of Criminal Procedure. This Court held that

although a notice had been issued it was not served Ig6o on the accused. The accused must be accorded an - . - l c d b h Mohamed DastagiY opportumty to contest an appea preierre y t e State Government in the High Court. The procedure state o; Madras adopted in the High Court was bad. The case was accordingly remanded to the High Court for rehearing Imam J. of the appeal in accordance with law. This decision is of little assistance because the accused had not been given in that case any opportunity to contest the appeal filed by the State Government in the High Court. Reliance was also placed on the decision of this Cpurt in Dwarka Prasad v. The State (Criminal Appeal No. l of 1950) (:unreported) decided on the 6th of October, 1950. In that case with reference to s. 422 of the Code of Criminal Procedure this Court observed that:

" The provision of the section as its language shows, is mandatory and a compliance with it an essential preliminary to the hearing of the appeal.

The arrest of the accused under a non-bailable warrant cannot be the substitute of a notice of appeal as is required under law." In that case, however, the lawyer who appeared before the High Court had made it clear that his appearance was on the instruction of the father of the accused and not on ; the instruction of the 'accused himself.

There are certain observations in the judgment of this

Court which indicate that if the lawyer concerned had told the High Court that he was appearing on the instruction of the accused _perhaps this Court would not have interfered with the judgment of the High . , Court on this ground alone. It would be useful to quote what this Court had said in that case. It said:

"There is, however, no power or authority given by the accused Dwarkaprasad to the learned Advocate and the Advocate himself does not say in his affidavit that he received any instructions from the accused. He was instructed, he says, to appear in the case by Ram Lal, the father of the accused, and on the materials before us we are not in a position to say that it was the accused who really instructed the Advocate through his fatpei'; it may be that the father havfog got information of the appeal

Mohamed Dastagir v.

State of Madras

'Imam].

124 SUPREl\IE COURT REPORTS (1960)

from some other source thought it proptir to engage an Advocate for the defence of his son.

As the position is extremely obscure, we cannot but feel that there has been a material defect in the procedure relating to the hearing of the appe[l, l by reason of non-compliance with a mandatory provision of the Code and this has led to a, miscarriage of justice.

His a case where the appeal was against an order of acquittal and the appellate court having set aside the judgment of acquittal has convicted the appellant of murder and sentenced him to death. Jn such circumsta, nces we must be satisfied that there was not even the possibility of the accused being deprived of his legal right of presenting bis caoo properly before the Appellate Tribunal." In the case before us it is perfectly clear that the High Court wns intimated in the clearest terms that appearance had been entered on behalf of the appellant and two advoctttes of the High Court were representing him, one of them an eminent advocato of the Court. Indeed, the High Court was requested not to issue nny summons to the appellant because appearance had already heen entered on his behalf.

In spite of that the High Court issued notice nnder s. 422 to Mr. Ethiraj and Mr. Cassim.

Even thereafter, the High Court took the preemution to intimaw the Special Judge of Tiruchirappalli to inform the

accused about the appeal filed against him. In theBe circumstances it can hardly be said that notice of the appeal had not been given to the appellant. l:'iection 422 does not speak of the notice being served on the appellant. It states that notice is to be given to the accused. If, as in the "ircumstance8 of the present case, the High Court is intimated that the :wcuged has entered appen, rance nnd ha~-.notice of the appeal filed against him a.ud the Court is requested not to issue any summons to him, it can hn, rdly be said that notice of the appeal had r.ot been given to the accused. The High Court found ou the facs thnt the appellant was fully apprised of the time and place at which the appeal wo11ld be heard .. It was, howeveP, urged that Mr. Ethiraj and Mr. Cassim had been engaged by the brother in-law of the appellant n, nd

) -

- ...

riot on his instructions and that that brother-in.law r960 had kept the appellant in the dark. It is impossible M ha - • to believe this. The appellant had been acquitted.

me~.Dadagir and an appeal had been filed against his acquittal. . State of Madras It is impossible to accept the suggestion that the brother-in-law of the appellant kept the appellant in .. Imam J. the dark. However much the appellant's brothe:r-inlaw may have been looking after the affairs of the appellant in India, he could not _have failed to inform the appellant of the appeal filed by the State agaijlst his acquittal because if the acquittal was set aST'de , and the appellant was sentence<l serious consequences would arise.

As to the second submission, Art. 20 {3) of the Constitution states: "No person accused of any offence shall be compelled to be a witness againt himself". Before this provision of the Constitution comes into play two facts have to be established (1) that the individual concerned was a person accused of an ofl:ence and (2) that he was compelled to be a witness against himself. If only one of these facts and not the other is established, the requirements of Art. 20(3) will not be fulfilled. It was, however, urged that on the facts the appellant must be regarded as a person who wa, s accused of an offence at the time that Mr. Kaliyappan asked him to produce the money.

The circumstances also showed that the appellant did so. on compulsion. He was at the time within the power of the Deputy Superintendent of Police and was compelled to comply with his direction. Mr. Kaliyappan being of the rank of a Deputy Superintendent of Police could himself make the investigation. The offence had been committed in his presence and the appellant was in the situation of an arrested person, Reliance was placed upon the decision of this Court in M. P. Sha!rma v. Satish Chandra and Others (1) in support of the proposition that a compelled production of incrimiaating document by a person during police investigation is testimonial compulsion within the meaning of Art. 20 (3) of the Constitution. In that case, this Court had observed at p. 1088 ;

"Indeed, every positive volitional act which fumishes evidencre is teistimony, and testimonial

<I) (1954] S.C.R. 1077,

M oliamed Dastagir v.

State of Madras

Imam].

compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the court-room. The phrase used in Art. 20 (3) is "to be a witness" and not to "appear as a witness ". It follows that the protection afforded to an accused in so far as it is related to the phrase ••to be a witness " is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him. lt is available therefore to a person against whom a formal accusation relating to the commission of an offence has been levelled which in tle normal course may result in prosecution.

Whether it is available. to other persons in other situations does not call for decision in this case.

Considered in this light, the guarantee under Art. 20(3) would be available in the present cases these petitioners against whom a-First Information Report has been recorded as accused therein. It would Elxtend to any compulsory process for production of evidentiary documents which are reasonably likely to support a prosecution against them." These observations were unnecessary in Sharma's case, having regard to the fact that this Court held that the seizure of documents on a search warrant was not unconstitutional as that would not amount to a compulsory production of incriminating evidence.

In the present case, even on what was stated in Sharma's case there was no formal accusation against the appellant relating to the commission of an offence.

Mr. Kaliyappan had clearly stated that he was not doing any investigation. It does not appear from his evidence that he had even accused the appellant of having committed <J, ny offence.

Even if it were to be assumed that the appellant was a person accused of an offence the circumstances do not establish that he was compelled to produce the money which he had on his person. No doubt he was asked to do so. It

was, however, within his power to refuse to comply r96o with Mr. Kaliyappan's request. In our opinion, the M h d D . . . h h o ame a.stagir facts established m t e present case s ow that the v. appellant was not compelled to produce the currency State of Madras notes and therefore do not attract the provisions of Art. 20(3) of the Constitution.

Imam J.

As to the 3rd point, we have read the evidence in the case, the judgments of the Special J11dge and of the High Court and have no hesitation in saying that the High Court's view that th~ judgment of the Special Judge was erverse is correct. This is an appeal on a certificate and the findings on questions of fact are not concurrent. Accordingly, we can form our own conclusions irrespective of the grounds given by the High Court for believing that the grounds given by the. Special Judge for distrusting Kaliyappan's. evidence were perverse.

Those grounds have, however, been placedbefore us and after a careful examination of them we have come to the conclusion that the grounds given by the Special Judge for distrusting Mr.· Kaliyappan's evidence are perverse.

It was suggested that the documentary evidence and the manner in which Mr. Kaliyappan gave his evidence indicated that in the quarrel between the village munsif and the appellant he was siding with the village munsif. Assuming that to be so, though we make it quite clear that we do not hold it to be so, it is impossible to believe that Mr. Kaliyappan would have concocted a false case of aiiattempt made by the appellant to bribe him if he had not done so.

He could have quite easily told the appellant to leave his bungalow without concocting a false case against him. If he was siding with the village munsif he could have as easily got his subordinate Police Officers to report that the village munsif's story was true and that the appellant should be prosecuted. There seems to be no occasion for him to have made an elaborate story of an attempt on the part of the appellant to bribe him when, in fact, the appellant had done nothing of the kind. A great deal of emphasis was laid on the fact that in the informa.tion which Mr. Kaliyappan !>mt to the Magistrate he had made no mention of money being offered tohim in an

i96o envelope and tl:\.at the torn bits of paper found out-

M , d 0 1 . side the window of Mr. Kaliyappan's office were not • Mame as agir d b f h 1 . h" I h b . b v. prove to e part o t e enve ope m w IC 1 t e r1 e State of Madras had been offered and that it was also not at all clear that the Rs. 500 found on the person. of the appellant Imam 1: were actually the currency notes offered to Mr. Kaliyappan as bribe. It seems to us, however, that too much emphasis has been laid on all this. Mr. Kaliyappan had certainly alleged in his information to the Magistrate that the appellant had offered him a bribe of Rs. 500.

Whether that. was the sum in the envelope or whether it had been offered in an envelope was beside the l)oint. The important question for consderation was whether Mr. Kaliyappan had been offered a bribe by tho appellant. For that purpose it was a relevant circumstance that in fact on his person the appellant had a sum of Rs. 500 and that if Mr.

Kaliyappan's story was true that; it was offered in an envelope, no envelope was produced with the currency notes of Rs. 500 which were placed on the table. On the other hand, torn bits of paper which could form an envelope were found outside the window of the room where the bribe had been offered. It seems to us on a careful reading of Mr. Kaliyappan's evidence that he had substantially told the truth and that there was no real reason for him to eonoct a false case against the appellant. Having regard to the circumstances in which the hribe was offered, corroboration of his evidence in that respect could hardly be expected. His conduct, however, throttghout showed that he had acted in a bona ft& manner. After a careful consideration of his evidence and of the circumstances established in the case we entirely agree with the High Court that there was no ma! grol'lnd upon which his evidence could he disbelieved. In the drcumstances, the High Court was entirely justified iu acting upon it and setting aside the order of acquittal m[tde by the Special Judge.

Lastly, on the question of sentence, it may be mentioned at once that on the second day of the hearing of this appeal, learned Advocate for the appellant stated that his client threw himself at the mercy of Court l!>nd apologized for what had happened. Tho

,..

. ""

learned Advocate further urged that the appellant, rg6o though an Indian citizen, .was carrying on business in M A d D • Burma and had a visa from the Burmese Govern-

0 iame astagir ment for permanent residence and that unless he State olMadras returned to Burma by the 2nd of March he would lose the benefit of the visa and would no longer be allowed Imam J. to reside in Burma. as a perma.nent resident. Consequently, he would lose his entire business and property in that country which would be a severe penalty ifhis sentence of imprisonment was upheld.

It is also pointed out that on two occasions this Court on this very ground1 on the appellant furnishing security and giving an undertaking to return to this country, had allowed him to go to Burma in order that he might not contravene the conditions of his visa. It was further pointed out that the incident took place in June, 1954, some 5 years and eight months ago. Even a substantial fine in Iieu of the sentence of imprisonment would be sufficient punishment and a deterrent to the appellant. We have given the matter of sentence our anxious consideration. It seems, prima facie, that a sentence of 6 months' imprisonment and fine of Rs. 1,000 could nGt be sajd to be severe for an offence of the kind established against the appellant. The circumstanctis mentioned above, if correct, in plea of mitigation of sentence may attract attention but so far as a court of law is concerned, judioially, it is impossible to say that the sentence imposed by the High Court is severe in a case where there had been an

attept to corrupt a responsible pqblic servan~,

The appeal is accordingly dismissed.

Appeal dismissed .

MOHAMED DASTAGIR

THE STATE OF MADRAS (B. P. SINHA

JAFER IMAM

C. SHAH

Constitution of India

Art. 20

Code of Criminal Procedure

s. 422

Tiruchirappalli

Indian Penal Code

s. 422

Code of Criminal Procedure

Art. 20(3)

Constitution of India

s. 422

Code of Criminal Procedure

Art. 20(3)

s. 417

Code of Criminal Procedure

s. 422

Mohamed Dastagir

State of Madras

C. B. Aggarwala

S. N. Andley

B. Dadachanji

Rameshwar Nath

P. L. Vohra

R. Ganapathy Iyer

T. M. Sen

C. K. Daphtary

H.J.

Umrigar

IMAM

High Court of Madras

Special Judge of Tiruchirappalli

s. 165A

Indian Penal Code

Kaliyappan

Ramanathapuram

State of Madras

s. 417

Code of Criminal Procedure

s. 165A

Indian Penal Code

June 3, 1954

Keelakarai Police Station

June 5, 1954

Madurai

June 12, 1954

Rashid

Ramanathapuram Circle

June 13, 1954

June 14, 1954

K!tliyappan

State of Madras

Imam

Kaliappan

Kaliyappau

Kahyappan

Ka.liyappan

s. 422

Code of Criminal Procedure

Art. 20(3)

V. L. Ethiraj

S. M. Cassim

R. Santanam

V. L .. Ethiraj

V. T. Rangaswami Ayyangar

s. 422

Code of Criminal Procedure

March 5, 1956

Ethiraj

Cassim

September 4, 1956

Special Judge, Tiruchirappalli

s. 422

s. 422

13th of November, 1952

s. 422

Code of Criminal Procedure

Mohamed DastagiY

6th of October, 1950

s. 422

Code of Criminal Procedure

Dwarkaprasad

Ram Lal

s. 422

Imam J.

India

Art. 20

Art. 20(3)

Art. 20

Art. 20

Art. 20(3)

Sharma

Art. 20(3)

Burma

Imam J.