3 S.C.R.

SUPREME COURT REPORTS

HOSHIAR SINGH

GURBACHAN SINGH

(S. K. DAS, K. SUBBA RAO and RAGHUBAR

DAYAL, JJ.)

Contempt of Court-Issue of prohibitory order-Knowledge aliunde-Disobedience-Absence of official communication, if a proper defence-Senttnce.

The appellants,· one a Sub-Divisional Officer and the other a Naib Tehsildar, were entrusted with the duty of allotting land to displaced persons. The first respondent forcibly occupied the land allotted to B. On May 9, 1958, the first appellant ordered that B and other allottees similarly situated would be given possession of lands allotted to them on May 20, 1958. On May 16, 1958, the first respondent and others threatened with dispossession filed petitions in the High Court under Art. 226 of the constitution and obtained interim tay of delivery of possession till May 19, 1958, when the petitions would come up before the Division Benc; h for admission. On May 19, 1958, the Division Bench extended the operation of the stay order until May 23, 1958. The notice of the first stay order reached the appellants on May 19, 1958, but no notice of the second order was officially communicated to them till May 21, 1958.

It was alleged that on May 20, 1958, the appellants, although informed of the second stay order by certain interested persons and the Advocate for orie of the parties, form:illy dispossessed_ the respondent in disobdience of the Court's order and handed over possession of the land to B.

On the complaint of the respondent the High C0urt held that the appellants were guilty of contempt of court and,· instead of committing them for contempt, administrated a warning as the appellants honestly believed that they were not bound to stay delivery of possession in absence of an official communi~ cation. The appellants appealed by special leave.

Held, (per Das and Subba Rao, .JJ.)that in a case.pf con tempt for disobedience of a prohibitive order, as distinguished from an order of affirmative nature, it was not necessary to show that notice of the prohibitory order was served upon the party against whom it was granted. It would be sufficient if it was proved that the party had notice of it aliunde.

N. Baksi v. C. K. Ghosh, A. T. R. (1957) Patn. 528, referred to.

Februa'} 8.

H()shiar Singh

Gurbacha1, Si11:h

128 SUPREME COURT REPORTS [1962) SUPP.

There may Le circumstances where officials entrusted \\'ith the carryinR" out of a Jcgal order mighr have valid reasons

o dru ht 1 lic aut.hf'nticity of. the order con\'cycd to them hy 1nl<>rested part1e~.

But 1n the present cast' there could hardly he any such rtason!'.. The appellants had really no justification for doubting the authenticitv of an ordr.r cornmunica ted to them hyan A<lvocatc. ' .

H"Ti/, furthr-r. t}1at in a m; i; tter reJating to contempt of co11rt, thrre cannot he hoth j11stification and apology.

M. Y. S/.ni., f v. 'J'he Tfon'lil, .TurlgPS of the Tligh Court of l\'ngr.ur. [lg'"l I~- C'. R. 757, referred to.

A lthm1h thr appellants miht hav• hnn.,.tly believed tl-<lt 1hr\0 \\rrl" not l-ounrl to hoJ<l thf'ir hand in absence of an offcial rrimm11nirati0n. that wo111(1 be no defence to the

rl1tlr_!"'r nf r0nt<'mpt of ~011rt, hut only a relevant consideration in a\\ardingthe 5Pntenrr.

p,,, r Da\'al. J.-Contr.mpt proct-erlin.vs are c:riminal or Olltlsi <'riminal in naturt" and it i" essential that he.fore any artinn ran he tal.:fn thr accusation must htspecified in rhar::ictcr. Tn thf inc:tant rasc, the rc,.pondent rlirl not state that he ,.•,:as fnrmally Oispossfsc:rd. Thi'.". would he for some reason if actu<ll pnc:-.ssion had hf'<'n delivered. He could not

l--tsaicl to ht\\'{' c:omr to rourt with cl"an hands. Further, the

fiPrlinl! nf tle Jlie'h C011rt that the appellants delivered no<::session lonrstl,· hrlic\'in(! that tht-y \\'ere not hound not to do -.o in the ahc:rnc:r oi 11,~ nffir-ial r-omm11nic:ation meant that

there: ,.,•as no rlrfiancr of thr l-fit"h f'.nurt's order. There conlrl he no \\'ilful cHsohedienc~ sinc:t:> th,.re \vac; no helicf in the cxic; ff'nc:e of the ordrr.

It mav nnt he ncc:es<:.arv that the party against l\hom a p'"ohihitorv order ,., a<:. m:v1f" must he sr.r\'c<l "ith the order, but it sloulO Pa''(' noticr nf the nrdt"r tr.for,. it could be cxpt'Ctf"rl to nlt"Y .. Such noticr mnt h,- from sourct-o; connected v.:ith

the court p; i~<; inrr thr ordr:r. The allege.cl knn\vJeclge of thr: party cannot he ,,.., anf' lo (1rprncl on the , eracily of the v•itnessr:s rx:iminrt hv tht" party praying fnr ac.tion.

In re Bruant L.R. ( l 8i6) 4 Ch.D. 98. In Ex Parle La.11glcy, E.;:parlf' Smith. In re !Jilwp LR. ( 1879) 13 Ch. D. 110 and The Seraylio. L. R. (1885) IO P. D. 120, discuss<'<L

C1tD!l:S-Ar. APPELLATE Jr:HJSDICTJON: Criminal Appeal Xo. 18i of 19:39.

Appeal by special leave from the judgment and order dated August 18, 1958, . of the Punjab High Court in Criminal Original No. 20 of 1958.

Gopal Singh and P. D. Men(ff!, for the appellants. R. S. Gheba, for respondent No. 1.

1962. February 8. The Judgment of Das and Subba Rao, JJ., was delivered by Das, J., Dayal, J. delivered a sepa.rate judgment.

S. K DAS, J.-'This is an appeal by special leave from the judgment and order of the Punjab High Court dated August 18, 1958 by which the said Court found the two appellants guilty of contempt of court and instead of committing them for such contempt, administered a warning to them and directed them to pay Rs. 50/- each as costs of the respondent.

Gurbachan Singh.

The two appellants before us bear the same name. One of them was the Sub Divisional Officer, Sirsa, District Hisear and the\other Naib Tehsildarcum:Managing Officer, Sirs<i, same district at the relevant time. In this judgment we shall call the Sub Divisional Officer as the first appellant and the Naib Tehsildar as the second appellant. The facts alleged against the appellants were these.. One Budh Singh, a displaced person, was allotted some land in village Jagmalera, Tehsil Sirsa, District Hissar. The land allotted• to Budh Singh was, it was stated by the appellants, forcibly occupied by the respondent Gurbachan Singh. The respondent :was not a legitimate allottee and the appellants, who were concerned in their official capaoity with the allotment and management of land for displaced persons, were naturally anxious to oust the respondent and deliver possession to Budh Singh of the land allott.ed to him. On May 9, 1958 appellant No. l made an order that Budh Singh and other allottees like him would be given possession of the land, allotted to them. The date fixed for such

196!

Hoshiar Singh

Gurbachan Singh

Hoa/iiar Singh

"· Gurbac.an Singh

Das J

130 SUPREME COURT REPORT5 [1962) SUPP.

delivery of possession was l\fay 20, I !J58.

On l\fay 16, 1958 Gurhaehan Singh and a. number of other persons who were similarlv threatened with <lisposHeesion filPd petitions to the High Court under Art. 226 of the Constitution challenging the l<'gality of the aDtion threatened against them.

These petitions were put up befor0 the learned Chief Justice on that very day, namely, !\fay Hi, l 9i:S, when he issued an order staying delivery ofpclHsession

till May l!l, I 9;)8, when the petitions were to come up for admission before a Division Bench, On May 19, 1958, the Division Rench extended the

operation of the stay order until May 2:{, 1958.

In tho- High Court the appellants did not dispute that the first order staying dclivNy of possession up to llfay l!J, I !JfiS was communicated to them on May

l!J, 1958 on which date the notice from the High Court reached Sirsa._ It appears that a notice of the second order extending the st11y of delivery

posscsion till llfay 23, 1958, was not officially communicated to the appellants till llfay 21, l!l:'iS.

The allegation on bohalf of the respondent was that on May 20, I!Jii8, which was the rdevant date, the two appellants wi>re informed by certain interested personR, t-o whom we shall prt•scnt.]y rofor, that a.n extenion of the stay ordn up to :\lay 2:J,

I!J; i8, had been granted by the Higli Court.

In spite of thiR information, however, the second appellant, in consultation with am] undN instruction, of the first. nppcllant, formally dispossess<'d the respondentand handed ovn possession of the land t.o Rudh Singh.

In these circumstances the allegation on lwhalf of tb" respondent wa• that the two appellants hnd committed cont<>mpt of court hv di"ob<'ying the orckr

of tho High Court stnying delicry of possession i II Ma:v 23, 19:'58. The respondent made an applica~1on to the High Cnurt for taking Rnitahle action ag, rn1st

the two appellants. Thi" application was mad" on llfay 27, 1958.

On this application the High Court

issued notice and after hearing the parties, Falshaw, J. (as he then was) who dealt with the application came to the conclusion that the two appellants were aware of the order of the High Court extend- . ing the operation of the stay order and yet they disobeyed the said order by dispossessing the respondent and handing over possession to Budh Singh. He held them guilty of contempt of court, but at the same time expressed the opinion that the appellants honestly believed that they were not bound to hold their hands in the absence of an official communication of the High Court's order extending the operation of the stay order. In this view of the matter, the learned .Judge instead of committing the two appellants for contempt of court merely administered a warning to them and directed them to pay the costs of the respondent.

On behalf of the appellants several points have been urged in support of their contention that they were not guilty of contempt of court. Firstly, it has be1m contended that on the materials on the record, the High Court was wrong in proceeding on the footing that the two appellants were informed by the interested parties that an extension of the stay order up to May 23, 1958, had been granted in the case of the respondent. It has been argued before us th'1t on May 20, 1958, the appellants did not know that the stav order had been extended till May 23, 1958, iri the writ petition filed on behalf of the respondent Gurbachan Singh, though in another case of Didar Sin1th relating to allotted land in the same village, the appellants were informed by an ad vacate that the stay order had been extended till May 23, 1958.

It has been contended before us that in the a, bsence of positive evidence fixing the two appellants with knowledge of the extension of the stay order in the particular case of the respondent, the High Court was wrong in finding that the two appellants had wilfully disobeyed the order of the High Court.

Horhiar S in:h

•• Gubrachan Sing~

DasJ.

196t

Hoshiar Singh

Gurbochan Singh

IJa1.J.

132 SUPREME COURT REPORTS [l!J62] SUPP.

In order to appreciate this argument urged on behalf of the appellants it is necefisary to state some more facts. In para. 17 of the applir.'1tion which the respondent made to the High Court for taking

neceliSary action against the appellants for alleged contempt of court, it was stated that at f).30 a.m. on May 20, 19:;,;, two persons named Bir Singh and A vtar Singh WPnt personally to the house of appellant No. 2 and told him that the stay order had been extcn<le<l by the High Court and that they had b<lcn informed by the advocate on telephone.

This allegation was supported by an affidavit made on behalf of the respondent.

Appella.nt l'\o. 2, however, denied this allegation in hiR counteraffidavit..

In paraH. 18, 19 an<l 20 of his petition the respondent Htakd that at about 7-40 a.m. on Ma.v ~O. I O.i8 a written application was filed bcforo appellant No. :! in which it was stated that the High Court harl. stayed delivny of possession till }fay 2:l, l!J58; this application was drafted by an advocate named Ganga Bishan, who acted on behalf of Didar Singh.

The applieation was presented to appellant !\o. 2 in preserrno of two other pcraons named ~Ia.stan Singh and Teja Singh. Thereafter, an aflida.vit wa.R also made on behalf of Didar Sinl?h.

This affidavit was presented to appellant Xo. 2 at about 8-1 ii a.m. Thereafter, appellant No. 2 went in a. 'joep' to appellant No. l in order

to consult the latter. Appelhtnt No. 2 Raw appellant o. I in the latter's court room.

Ho e1tme out within a. few minutes, and told Gangit BiRhan that the affidavit Rhould he presenled to appellant No. I. Thereupon, another application was written 011 behalf of Didar

ingh and this was presented to appellant No. l supported by the affidavit already made on behalf of Didar Singh.

Appellant o. I did not, howtver, pass nccssary orders on tho application till

about 10 a.m., when he mado an endorsement to the effect that the Tchsil<lar, Sirsa, should take

necessary action. When the application was taken to the Tehsildar, he noted on it that the Naib Tehsildar, namely, appellant No. 2 had already left for the village to deliver possession. Thereupon Avtar Singh, Bir Singh, Didar Singh and Mastan Singh went to village Jagmalera where the lands lay and again met appellant No. 2.

The application made to appellant No. 1 with his orders thereon was shown to appellant No. 2. It was alleged that appellant No. 2 was also shown the wording of the stay order as received by the party through a special messenger.

Appellant No. 2, however, replied that he had been ordered to dispossess the respondent and insisted on his proceeding with the dispossession.

In his counter-affidavit appellant No. 2 admit- . ted .that on May 20, 1958 an application was presented to him by Didar Singh at about 7-40 a.m.

He further admitted that an affidavit in support of the application was also presented to him.

Appellant No. 2 then made the following significant statements.

"On receipt of these documents I told Shri Didar Singh that I could not act on the application and suspend the proceedings for dispossession unless I was shown the order of stay alleged to have been made by the High Court." Appellant No. 2 explained his conduct by referring to the background of quarrel and enmity between the parties which had led to several criminal cases between them. Appellant No. 2 said in his counteraffidavit that with this background of enmity he felt that though Didar Singh was an intereste Ii party, it would not be safe to accept the statements of facts contained in the application or affidavit made on behalf of Didar Singh at their face value.

Appellant No. 2 also admitted that he consulted appellant No. 1, who also advised that it would not

Hoshiar Singh.

. v.

Gwbachan Singh

Das J.

lloshiar Singh

V, ·, urbach;11 Sinth

DasJ.

134 SUPREME COUltT REPORTS [1962) SUPP.

be safe to aet on the statements made in the application or affidnvit.

Appellant o. 2 also admitted that Ganga Bishan Advocate, presented the applications to him. He al8o admitted that the appli cation which was filed by Ganga Bishan to appellant Xo. I was received back with the orders of appellant No. I thereon at a.bout 6 p.m. on :\Ia.y 20,

l\158, while appellant No. 2 was returning from the village.

Appellant No. denied that he was shown the wording of the stay order of the High Court. He admitted, however, that he was asked uot to proceed with delivery of possession on account of the High Court. Appellant No. I. also made similar statements in his counter-affidavit. He admitted that at about 9 a. m. on llfav 20, 1958 an a.pplillation oupported by iiffidavit wus ma.do to him on behalf of Didar Singh imd he then endorsed the application to the Tehsilda.r for necessary action.

Unfortunately, the applications which were made to appell!Lnts I and 2 have not been filed and we do not know tho precise eontents of the two applications.

We have, howt:>ver, afTidavits made on behalf of Dida.r Singh. Teja Singh, Ganga Bishan and Avta.r Singh.

The learned Advocate for the parties have taken.us through those affidavits. The a.Jgument presented on behalf of the appellants is that though thoy knew of thc extension of the stay order in Didar Singh's case by reason of the application and affidavit filed on his behalf before thom, they did not know that a similar extensiou of the stay order had been granted by the High Court in the other ca; ies as well.

This argument has been pressed before us with some vehemence and we proceed now to consider it. It is worthy of note that such an argument which goes to the very root of tho matter was not presented to the High Court. It is not disputed that "disobedience of a. judgmcn t or order requiring a porson to do a.ny a.ct other than tho payment of money, or to

3 S.C.R. SUPREME COUH,'f REPORTS 135

abstain from doing anything i~ a cont.empt of court punishable by attachment or committ, al" ; but disobedience, it is argued, if it is to be punishable as a contempt, must be wilful ; in other words, the party against whom a proceeding by way of contempt is taken must know t:ii.e order before it can be said that he has disobeyed it. It is somewhat surprising that if the stand of the appellants was that they did not know of the order made by the High Court on May 19, 1958, in the respondent's case, such a point was not urged in the High Court. Falshaw, J., (as he then was) said in his judgement that it was not in dispute before him that 011 the morning of May 20, 1958, both the appellants were informed that an extension of the stay order upto May, 23, 1958, had been granted by the High Court.

This statement of the learned Judge must have reference to

tho case of the respondent which he was considering.

Apart, however, from the point that such an argument on behalf of the two appellants was not presented in the High Court, it appears to us that on the affidavits made available to the Court, the only reasonable infernce is that though the application and the affidavit were made on behalf of Didar Singh, both the appellants were informed that the High Court had granted an extension of the stay order in all the cases. It is admitted on both 8ides that there were three cases in which deli very of possession had to be given of lands in village Jagmalera. It is also not seriously in dispute that on May 9, 1958, appellant No. 1 made an order directing that delivery of possession should be given to the allottees of their respective areas and persons in unauthorised occupation would be dispossessed.

On May 16, 1958 three writ petitions were made

which were placed before the Chief Justice who made an interim order of stay lasting for three days.

On May 19, 1958 the writ petitions were placed before a Division Bench for admission and that Bench

t962

Hoshiar Singh

Gurbachan Singh

Dat J,

HoJhiar Singh

•• Ourbachan Singh

j),,, J.

136 SUPREME COURT REPOI~TS (1962J SUPP.

extended the stay order till May !!3, 1958.

These are the admitted facts. It is also admitted that the respondent Gurbachan Singh did not appear before the appellants on May 20, 19ii8, a fact which has been emphasised by the learned Advocate for the appellants. Let us, however, seo what the affidavits filed in the case show. Teja Singh said in his affiJavit that Harbans Singh Gujral, who was the advocate acting on behalf of the petitioners in all the cases, told him on the telephone on May 19, 1958 that the High Court had extended the stay order in all the cases upto May 23, 1958.

Teja ingh iiccompa.nied Didar Singh, Ganga Biahan, Mastan Singh and others to the village on .illay 20, HJ68, and he said that au application was

mado to appelle.nt No. 2 in which it was stated that the stay order had been extonded by the High Court.

The affidavit of Ganga llishan is very eignificant in this connection. He said that on May ~O, 1958, ho drafted the application which was later ma.de to appellant No. 2.

Ganga Bishan said that it was stated to appellant No. 2 th:it the stay ordor made by the High Court related to all tho cases of village Ja.gmalera. He further said that appellant o. 2

was informed that stay of delivery of possession had been extended by the High Court upto May 23, 1958 ; appellant No. 2, ho, vever, wanted to be shown the order of the lI igh Court ; thereupon an affidavit of Didar Singh to the effect that tho stay order had been extended by the High Court upto :May 23, 1958, was filed.

Ganga Bishan also said that appellant No. I was also informed that the High Court had i.xtended the stay order upto May 23, 1958. The affidavits made on behalf of Didar Singh and A vtar Singh were also to the same effect. In view of theso affidavits we find • it very difficult to hold that the appellants knew of the stay order only in Didar Singh's case but did not know of the stay order in the other cases.

It is worthy of note here that

in the counter-affidavits filed on behalf of the appellants the Doint that was made on their behalf was that they. considered it unsafe to rely on the applications and affidavits made, in view ot the background of enmity between the parties. The two appellants did not say in their counter-affidavits that they came to know of the stay order only in one case and not in the others . .:Such a point does not appear to have been specifiqally made on behalf of the appellants at any stage of the proceedings in the High Court.

Therefore, we have come to the conclusion that the appellants knew of the order of the High Court

in all the cases and it is not correct to say that the appellants knew of the order of the High Court

only in one case and not in the others. We find it difficult to believe that Ganga Bishan would not tell the appellants that the High Court had extended the stay order in all the three cases of the village Ganga Bishan says in his affidavit that he did tell the appellants of the extension of the stay order in all the three cases and there was no counter-affidavits on behalf of the appellants traversing the statements made by Ganga Bishan. We must, therefore, overrule the first point urged on behalf of the appellants.

The second point which has been urged on behalf of the appellants is that in the absence of an official communication of the order, they were justified in not acting on what they came to know from interested parties and their advocate.

The learned Advocate for the appellants has submitted that in a case of this nature, before wilful disobedience of the order of the High Court could . be imputed against the appellants, it was legally essential that the order should be officially communicated or served on the appellants and in the absence of such communioation or service, the proceeding for contempt must fail.

We are unable to accept this contention as correct.

lioshiar Sinqh

•• Gurbacf1an Singh

Das J.

H oshiar Sfr1vh

Owbachan Singh

Das J,

138 SUPREl\IE COURT HEPORTS [1962] SUPP.

Tho legal position ha.~ been very succinctly put by Oswald: .

"The judgment or order should be served on the party personally, except in the following cases: (I) prohibitive orders, the drawing up of which ii! not completed; (2) orders embodying an undertaking to do an act by a named day; (3) orders to answer interrogatories or for discovery or inspection of documents: (4) where an order for substituted service has been ma.de; (ii) where the res

pondent has evaded service of the order ......

In order to justify committal for breach of a prohibitive order it is not. necessary that the order should havo been served upon the party against whom it has been granted, if it bo proved that he had notice of the order aliunde, as hy telegram, or rtewspaper report, or otherwise, and knew that it was intended to be enforced, or if ho consented to the order, or if he was present iii Court when the order was pronounced, or when the motion was made, although he loft before tho order was pronounced." (Oswald's Contempt of Court, 3rd Edn. pp. 199 and :!03).

The order in the present case was a prohibitory order and if thn appellants knew that the High Court had prohibited delivery of possession till May 23, 1958, it was undoubtedly the duty of the appellants to carry out that order. Wo <lo not think that the appellants can take up the plea that as the order had not been officially communicated to them, they were a.t liberty to ignore it. The appellants were officers whoso duty it was to uphold the law and if they 'knew that a valid order had been ma.de by the High Court staying delivery of possession, they disobeyed that order at their peril. There may be circumstances where officials

entrusted with the duty of carrying out a legal order may have valid reasons to doubt the authenticity of the order conveyed to them by interested parties and in those circumstances it may be said that there was no wilful disobedience of the order made. We do not, however, think that the appel !ants in the present case had any real justification for doubting the authenticity of the order made by the High Court, even though the order had not been officially communicated to them. The appellants knew that an interim order of stay had been made by the High Court on May 16, 1958; that order was in force till May 19, 1958. Thereafter the appellants were informed not merely by interested parties but by an Advocate, who was an officer of the Court, that the High Court had extended the stay order npto May 23, 1958.

A formal application supported by an affidavit was made to that effect. Despite the reason alleged by the appellants that there was a background of enmity between the parties, we do not think that the appellants have given any good reasons on which they were entitled to doubt the authenticity of the order communicated to them by Ganga Bishan, an Advocate acting on behalf of Didar Singh. It is worthy of note that the appellants did not deliver possession in Didar Singh's case.

They were content with delivering possession in the case of the respondent only. Taking into considerations all these circumstances we are satisfied that there was in this case in the eye of the law, a wilful disobedience of the order of the High

Court staying delivery of possession, even though the appellants might have wrongly but honestly believed that it was not safe to act on the information given to them by Ganga Bishan.

The learned Advocate for the appellants has referred us to a num her of decisions, English and Indian, relating to mandatory orders, or

Ho$hiar Singh

G-urbachan Singh

Das ; T.

191iZ

Hoshia• 8in:h .. 111rhf'fcha11 Si11:h

DaJ J.

140 SUPREi\IE COGH.T REPORTS [1962] SUPP.

orders for the payment of money, 'or orders which require under the rules of the Court tu be served in particular manner. In re: Holt ' (wi lnfm11)(1); Ex-parte Linvley ('); In re: Tuck ilfurch v. £oosemore ("); Dwijendra Krishan Datta v.

Surendra Nath :\'ay Choudhury ('): and Gordon v.

Gordon('). In those docisions it was held that it was necessary to havo the order properly served before charging a person with disobcrlioncc of it.

We do nut think th&t those decisions are in point, because we are dealing with a prohibitory order and in tho matter of a prohibitory order it is well-settled that it is not neces.-iary that the order should have been served upon the piuty against whom it has been granted in order to justify committal for breach of such an order, provided it is proYed that the person complained against had notice of the order aliunde.

The distinction between prohibitory orders and orders of an atlirma.tive nature wus adverted to in N. Baksi v. 0. /(_ Ghosh(') and a largo number of decisions were referred to in support of the rule that in respect of a prohibitory order, service of the order was not essential for founding an action in contempt.

We do not think that any useful purpose will be served by examining thoRe decisions over a.gain.

We are content to adopt for tho purposes of this

case the rule as succinctly put by Oswald and quoted earlier -in this judgment.

Lastly, our attention has been drawn to tho statements made by the respondent in para. 22 of his petition to tho effect that though appellant No. 2 ma.de a report about delivery of possession in respect of the land of the respondent, no actual dispossession could be made because cotton crop was standing on the land a.nd a. large number of pJJrsons had gathered there. The argument before us is that if, according to the respondent

(1) (1879) 11 Ch. D. 168.

(3) (1906! 1 Ch. b92.

(5) (1946) 1 All B.R. Zo\6.

(21 (1879) 13 Cb. D. 110.

(4) A.1.R. 1927 Calculta 548.

(6) A.1.R. 1957 Patna 528.

himself, no actual dispossession took place then this is not a fit case in which action for contempt should be taken against the appellants. It bas been submitted on behalf of the appellants that contempt proceedings are of an extraordinary nature and the Court should be reluctant to exercise its extraordinary power if the action complained of is of a slight or trifling nat11re and does not cause any substantial loss or prejudice to the complainant. It has been argued that if the respondent himself said that he ha.cl not been actually dispossessed, then there was no reason for proceeding against the appellants for contempt of court. Secondly, it is pointed out that the appellants offered an apology in case the High Court held that they should have taken action on the information given to them by Ganga Bishan. As to the second submission, it is enough to point out that in a matter relatin~ to contempt of court, there cannot be both justification and apology. (See M. Y. Shareef v.

The Hon'ble Judges of the High Court of Nagpu.r (1). As to the first submission we may draw attention. to the statements of appellant No. 2 in para. 21 of his affidavit in which he said that so far as the respondent's land was concerned, possession was delivered to B11dh Singh. This statement of appellant N"o. 2 clearly shows that the two appellants took the very action which was prohibited by the High Court

by its order dated May 19, I !158.

We are, therefore, unable to accept the submission that there was no foundation for taking action against the appellants for contPmpt of court. This disposes of all the points urged -0n behalf of the appellants.

As to the punishment imposed, the l(larned Judge took into consideration that the appellants wrongly but honestly might have believed that thev were not bound 1 o hold their hands in the absence of an official communitlon of the order

(ll [1955] l S.C.R. 757.

Hoshiar Singlp

•• Gurbachan 8 ing

Dai J,

Hoshiar S1'ngh

V, Gurbachan Singh

DasJ.

Rathuhar Dayal,],

142 SUPREME COURT REPORTS [1962) SUPP.

of the High Court. That belief a1forded no defence to the chl\rge of contempt of court, bnt. was a consideration relevant to the sentf>nce.

Jn our opinion, there are no ground~ for interference with the order of the High Court. 'l'he appC'al accordingly fails and is dismissed.

RAOHQ!AR DAYA!., J.-I have had the previlcge of perusing thP , Judgment of my learned brother S. K. Das, J., bnt regret. my inability to hold that tho appellants committed contempt of Court.

I need not repeat the fact.I' set out in the majority judgment.

No conviction for committing contempt of Court r.an be based on the finding of the High Court that the appellants delivered poesesion believing that they were not bound to hold their bands in the absenr.e of the official communication of the High Court's orckr. The finding mrans that they dPlivered po~SPesion not in defiance of the High Court's ordN, but bPcause they honestly thought. that in the absence of the official communication of the order, they could uot act on the supposition that the original stay ordn. whieh was to be effective up to !\fay rn, 1958, continued to he effective.

If in their honest opinion no stay order existed at the time, their conduct cannot be said t<i amount to

\\ ilful disobedience of the High Court's 01 der extending the st.ay order up to :\fay 23, 1958.

No question of wilful disobedience can arise when the very existeneo of the <'rdcr is not believed. The question of obedience or disobediPnce arises only after the party knows of the order and if tho party docs not know the order, 110 such question can arise.

The allegations in the petition by the first responcknr, filed in t.he High Court, did not make out that the appellants delivered posession, tho

delivery of which had been stayed upto May 23, 1958, by the High Court by its order dated May l!J, 1958.

TbiA is clear fro'll the statements in paragraphs 21 and 22 of the petition. They are:

"21. However, when actually he attempted to start the work of dispossession, he found that a large number of people were collected at the spot and apprehending that the police force already taken to the spot might not be sufficient to cope up with the situation if some trouble arose, he withdrew from the spot.

22. That although in the land possessed by the petitioner in Jag Malera, cotton crop was standing in some of the fields and no proceedings for dispossession of the petitioner could be taken by respondent .No. 2 on account of the presence of a large number of persons at the spot, respondent No. 2, however, made som<' report later on that the petitioner had been actualy dispossessed of his lands and the same was given over to Budh Singh at the spot.

In the other cases, however, he made a report that he could not deliver possession on account of the presence of a mob at the spot and that the police force with him being too small, was not sure to cope up with the situation."

These paragraphs can only mean that appellant No. 2 attempted to start the work of dispossession, but did not proceed further, and withdrew from the spot iu view of an apprehension of breach ' of peace and that be made some report of a fictitious kind to the effect that the petitioner had been actmclly dispossessed of his land and possession had been given over to Budh Singh at the spot.

It was om phasized that actual possession could not have been delivered on account of the standing cotton crop. It follows that even on the statements

Hoshit1r Sinrh

Gurbachan Singh

R.i:hubar Dayal J,

Hoshiaf' Singh

v, (; urba, han S£r.gh

Rag}_ubar Da; al J.

144 SUPREME OOURT REPORTS [1962] SUPP.

of the first respondent in his petition for action against the appellant~ for contempt of Court, there

waR no assertion that they had disobeyed tho stay order by <.lelivering possession to Budh Singh. In the absence of such an assertion, no itction could have been taken or ought to have been taken against the appelbnta.1

Contempt procei>dings are criminal or quasicriminal procPedin11s. It is essential that the nccusation made against the opposite part.v by the peti- tionPr for taking action against him should be

preeiRe and Rhould dearly make ont that the oppositr partv had, by some specific act, committod contempt of Court. The conviction of the opposite party must rest on the facts nlhged and proved by. tho petitioner. A conviction mny also rest on the sole admisgion of the allPged contemner if that eRtnblishcR his commit.ting contempt of Court, but, in that <ase, his admission should be taken aR a whole and not thnt its incriminating part be taken out of the contP:i:t. and mado the baRis for conviction.

It is immaterial that appellant o. 2 st:tted in his reply that actual nosRPssion oft.ho land in the unnuthr; rised possession of thP first reRpondent was

delivered to Budh Singh and that at the time no cotton crop waA Rtandin!!'. and that the respondent

was adopting a contradictory position.

The High Court did not give any finding on this question.

Tt. simply aid in its judgment, d1w t-0 the misr<', ailing of the allegations in the petition.

"fn spite of thiR fact it is n llegcd that in the village the aib Tehsildar formally disposseRscd the present petitiouer and handed

ovpr hiR Janel to one Bndh Singh .. .'' The respondent made no stritP.mcnt about the Naib Tehsil<lar formall.v disposcssing him and handing over thl' land to Bndh Singh.

A clear.cut finding on the disputed fact whether actual p'.lsiession h'!.d been delivered or not is not to be given in s11mm,1ry proceedings for contempt of Court.

If actual possession had been delivered to Budh Singh, there must have been some good reason for the respondent not to admit it in his petition and that can only be that in any future dispute where the question of possession of the respondent or of the Budh Singh be in question, the respondent be not confronted with his own admission in his petition . and affidavit accompanying it. 'It may be mention-· ed that identical statements where made in paragaraphs 21 and 22 of the affidavit. There might be some other reason for the respondent not to admit the delivery of possession, but it is clear thnt the respondent did not come to Court with clean hands and, in the circumstances, proceedings for contempt of Court on his application was wrong exercise of discretion. However, the mlj.in fact remains that no allegation was made in the petition that the respondents had delivered possession.

The appellant~ were not served, by the time the delivery of possesion may be upposed to have taken place, with the order of the High Court extending the stay order up to May 23, 1958. The telegram sent by the counsel of Gurbachan Singh from Chandigarh, recached the first appellant, the Sub Divisional Offieer, at 1-30 p.m., on .May 10, 1958, and any order of his on it did not reach appellant No. 2 till 6 p.m., by which time, according . to him,, possession had been delivered. The formal stay order from the High Court reached much later.

It may not be necessary to serve prohibitive

~ order on the party against whom it is granted, but that party must have notice of the order before it can be expected to obey it can be committed for ,. contempt of Court for disobeying it. This is what

Hoshiar Singh

Gurbaehan Sim1h

Raghuhar DaJal J.

lfoshiar Singh

Gut6cchan Sinyh

Rathubar Do; al J.

146 SuPREME COURT REPORTS [1962) SUPP.

owald states at pago 203 of his book on 'Contempt

of Court', III Edition.

He says: "In order to justify committal for brrad1 of a pohibitivc order it lli not ncccsary that tho order should have been 8Cl'P'cl upon the party against whom it has been

granted, if it be proved that ho had notice of the order aliunde, kl! by tcfogram, or nnw8paper report, or otherwiso, .... " It would appear from the later part of the observation that it was 8ufficient that the party coneenHu gets notice of the prohibitive order by any mcns, specially by tdegram or 11ews1nper report. This

is however not what was held in tho cases referred to by Oswald in support of his statement.

Xotic<> to the party concern.,<l, of the prohibitive order. in those cases was communieat.Cd by the Court

through it.s regular procedure or by a Solicitor of the Court.

In In re Bryant (1) the parties conc<rned wern informed by the solicitor of the judgn1ent-debtor that the debtor h:id filed a liquidation petition in the London Bankrnptc:y Court and that applicat.ion would he made at the next 8itting of the Court to restrain further p1occcdings under the execution.

The auctione:er cunccrncd received a telcirram fr<,111 Bryant's solicitors referring to the parties to t lw

case and stating that injunction staying sale nlld further pro<~'cdings had been granted that morning and that the order would be served as soon as possi.

ble. The auctioneer, however, proceeded with th•.' sale. It was in tlwse circumstances th:i.t tbo part i<s concerned wtrc held to have disobeyed t lw order of the Court and to have committed its contempt. The olicitor was an officer of the Court.

This case i~ no authority for the propositiu 11 that information conveyed to the party concnrnc d

(I) 1..R. (137G) 4 Ch. D. 93.

by telegram from a person who is not an officer of the Court would amount to the requisite notice . of the prohibitive order by the party concerned; ·

In Ex parte Langley, Ex parte Smith, In re Bishop (1) the facts were as follows.

Bishop filed a liquidation petition in the London Bankruptcy Court on August 6, 1879.

The same day the Court passed an order restraining until the 8th of September, further proceedings in several actions w hieh had been commenced against the debtor and, iriter alia, restraining the sheriff of Kent, his officers and servants, from taking any further proceedings in an action which had been brought against the debtor by Messrs.

Wade and Thurston. The sheriff had fixed the sale of the attached furniture of the debtor on the 6th of August, having adjourned it from the 5th in order to afford an opportunity to the debtor to pay the debt. Smith was the sheriff's officer who was in charge of the sale.

His assistant, Emmerson and Langley, an rmctioneer, were to carry out the sale. Emmerson had directions to, start the sale at 11 o'clock and not a moment later.

Langley, however, postponed the same to 12 o'clock, on his own responsibility, clue to paucity of persons present.

Langley received a telegram from one Matthews, the manager of the hotel in which the debtor was carrying on business as a licensed victualler, saying:

. "Smith gone to Canterbury. You had better stop sale on your own account, as I know it is all right."

The auctioneer was also informerl by the debtor's son and another person between 11 and 12 o'clock that the debtor would come down by the mid-day train from London with the money to pay the execution debt. The sale was again put off to 1 o'clock when it did start. After a few lots had been sold, Emmerson received a telegram purporting to bl)

{I) L.R. (1979J 13; ca. D. l!O

Hosloiar Sirigh

Gur6ocllon Sinth

Rag/IU6ar Doyal J,

HQl/iiar Sirith

v, Gur6acl, lln Sin(1h

~ ' ,, _, -~

R•ghubor Da)'dl J,

148 SUPREME COUHT HEPORTS (1Vli2] SUPP.

Irom Learyod & Co., Solicitors, London, to the sheriff's officer in possession stating:

"Take notiee, the London Court. of Bankruptcy has marle an order rcstrl\ining you from selling or taking any further proccedin.gs in the action against Bishop". ,

The telegram was shown to Langley who thought it to ho a ruqe on the part of the debt0r but was

propared to stop the sale temporarily till instructions from Smith.

Emmerson sent a telegram to Smith saying: -

"Langley just received telegram to stop sale. Shall we proceed?

People are waiting

I " your rep y.

Smith's reply was:

"If telegrnm to Langley drws not state Defenrlant filrd petition or morn'y paid, sell at. on en." The sale then•aftnr proceeded.

L'.tngle_v and Smith were CCJmmitted fur contempt. hy B<Leon CJ.

But on appeal they were <Lcquitted. , James, L .• T., said at pago 116:

"With regard to the sheriff's officer, he does not e.eni to have hecn a pa.rty to the alleged contempt :it all, bcc<l.U'e I do not think the mere fact CJf tlw t.clcgram is sufficient to bring home to him any parti<, ipatio11 in the

l l t " suppose< con l'Dl}l .

He further aid at p:Lge 117, in C'llH<irlcring the C<l.~" of tho auctioneer.

"It appears to me that he might have t; Lkcn some st<'ps (though I do not kno\\' what steps I should IHwe taken if I had been i11 his position) to ascertain whether an 01dtir harl really been made by the Court. Perhaps some auctione.ern would ha.rn dont• so.

But he has tak•m upon himself to swear positively (and he

3 S.C.R.

SUPREllffi COURT REPORTS 149

has not been cross-examined) that which Lord Eldon, in Kimpton v. Eve (1813 2 V. & B. 349= 35 E.R. 352), held to be sufficient. He swears that he did not believe that there had been any proceedings whatever in the Bankruptcy Court, or that.any such order had been made.

A person in such a position, and a sheriff's officer is placed in great difficulty upon receiving a telegram of this kind, knowing nothing at all of the person who may have gone to the post office and sent it, a telegram which might just as well have been sent by the debtor or by Matthews, or any one else .on behalf of the debtor, in the name of Messrs.

Learoyd. I am very far from saying that notice of an order cannot be given by telegram. But it is very difficult to commit for contempt where a man says that which the auctioneer does here, under circumstances which certainly give colour to his assertion, and there is some amount of probability that he may, having regard to what had already taken place that day, not have belived that any order had been made by the Court, and have had no suspicion whatever that he was disobeying any order of the Court when he continued the sale." Thesinger, L. J., said at p. ll9:

" ... I in no way dissent from the proposi- . tion laid down by hirn(Bacon, C.J.) in this case and also in In re Bryant (supra), that, under certain circumstances, a telegram may constitute such a notice of an order of a Court as to make a person who disregards the notice and acts in contravention of the order, liable for the consequences of a contempt of Court ...... .

But the question in each case, and depending upon the particular circumstances of the case must be, was there or was there not such a notice given to the person who is charged with

Hoihiar Singh ·

v. ,·, Gurbachan Sinih- ,

RajhUb•rlDay".l 3:,,.,,·,:

Hosliiar Sint•

v. 0UT6odr411 Sin1A

R., lu.Hr D•_;.i J,

150 SUPREME COURT REPOHTS [1962] SUPP.

contempt of Court that you can infer from tho facts that he had notico in fact of tl1c order which had be;; n made• Aud, in a matter of this kind, bcarirg in miml that the liberty of the subject is to be afTcctcd, I think that those who assert that there was such a uotice ought to prove it beyond reasonalilc doubt..'' He further stated at page 121:

"But, on the other hand, he has positively sworn that, coupling what had happened before with tho telegram, hl' bmw. fide believed that he was not hound to act upon the telegram which he had received, and that (.here had been no proceedings which would justify him in stopping tho sale. He has not been cro11-examined, and nothing has bcc11 proved to show that his affidavit. is 11ot true. Under such circumstances the obscrrntions of Loni Eldon, in K implmi v. li:e (supra) seem to me pertinent and material, and I may add that in a case like tho perscnt the hcnPfit of any doubt ought to be given to the person charged with contempt." 'fhe further remarks of .James L. J., at page I ~2 point out the proper way of communicating a notiC'c about injunction orders to tlw parties concerned by the solicitor of the party obtaining tho order from the Court. He says:

"I wish to add this, that when parties who obtain an injunction wish to cornmunicato it by telegram, there is a very obvious mo<lc by which thoy can prevent difficulties like this.

If tho solicitor, instead of tc]('gmphing to the sheriff's officer, were to telegraph to some solicitor a.s his agent at the place, and tell him to go and give notice of the order, then the person affoctod would have tho responsibility

3 S.C.R. 151

of an officer of the Court for what he was doing." This case well illustrates the difficulties of the parties against whom a prohibitive order is made when they are informeJ by a telegram ab:mt these orders having been made by the Uourt even when the telegram was from a solicitor of the Court. The diffioulties would be still greater if the telegram was one from a person who is not a solicitor and therefore _an officer of the Court.

In The Seraglio(') notice of the issue of warrant which was subsequently disobeyed was sent by telegram by the marshal to the custom-house officer at .Plymouth who went on board the ::leraglio to inform those in charge of the ship. The master of the Seraglio, however by the owner's order, left Plymouth with the custom-house officer on. board.

The warrant was served on him subsequently. Sir Jamea Hannen said at page 121:

"It must be understood that a litigar. t cannot be disregard a notice sent to him by telegraph by an officer of the Court." In none of the cases referred to, a pMty is said to have received information of the Court's injuuction order through any source having no connection with the Court passing the order. I would not like an extension of this practice of holding a person guilty of contempt even though he is not served with the order, to cases in which his alleged know ledge of the order is dependent 011 the veracity of the witnesses examined by a party praying for action against the other.

Conviction for contempt of Court must depend on unimpeachable evidence of the knowledge of the alleged contemner about the order said to have been disobeyed.

In support of the note th11t it could be proved that the party proceeded again~ had notfre of the

(I) L.R. (1885) 10 P.D. 120.

Ho1hiar Single

Gurbachan Sin1h

Raghuhar Doyal J.

JJ62

IJ1shi<r Sin:h v.

Qurbacha11 Sinth

l!qhobar D•ylll ./.

152 SUPREME COURT REPORT.::; [Hiuc] SUPP.

order by newspaper report or otherwise, Oswald

has rcforred to Daniell's Chancery Practice, Vol. I.

Edition 7, page 1368.

That edition is not available, but in the 8th edition of that book, Vol. II, at page 1413, is noted the practice in urgent cases thus:

'"In such (urgent) caaes, the practice is to serve the party enjoined personally with notice in writing that the injunction has been granwd, and that the order will be drawn up and served as soon as it can bo paased through tho offices ; or else to procure 11. transcript of the minutes of the order signed by the Registrar, and to serve the same porsonally by delivering a oopy of it, showing at the same time the original transcript su signed ; and either the notice or the copy of tho minutes will be sufficient to render the defendant ur other person enjoined guilty of a con tern pt, if he acta in opposition to the injunction." I do not find any reference that knowledge of the party proceeded against through a newspaper report or otherwise, and not through Court, has bet1n considered sufficient for contempt proceedings.

Again, at page 14HI, have been mentioned certain other means through which tho party pro ceedod against could have been informed of the injunction order. They are practically those summarized in Oswald's noto.

In the appeal before us, I am not satisfied that tho appellants had been informed that the High Court had passed an order staying the delivery of possession in proceedings on the writ petition filed by respondent Gurbachan Singh. The communication made to tb'3 appellants about the stay order of the High Court is said to be through the applications and affid:1vit presented by Didar Singh to tho appellants on May 20, 1958, and through a

3 S.C.R.

SUPREME COURT l~EPOBTS 153

chit said to have come from the advocate of the High Court regarding the injunction order.

Didar Singh had put in another writ petition against his threatened dispossession by appellant No. 1 through appellant No. 2.

There is said to have been a third writ petition by another person praying for similar relief.

All these petitions were separately dealt with by the High Court.

Separate stay orders were passed on them.

These five affidavits, in view of their contents, are not sufficient to prove that the appellants had been informed through these documents that the High Court had extended the stay orders in all the three cases, viz., the cases on the writ applications of Gurbachan Singh, Didar Singh aRd another third person. No statement is made in any of the affidavits that the applications and .affidavits presented to the appellants mentioned that the High Court had stayed the delivery of possession in all the three cases.

It is not stated by Didar Singh and Mastan Singh what was written on the chit sent by the advocate of the High Court and whether that chit related to the order in the case of Didar Singh alone or referred to the orders in all the cases.

As Didar Singh claimed a receipt for the presentation of the application and affidavit to appellant No. 2, the latter, after consulting the prosecuting inspector, went to appellant No. l for consultation and was advised to return the application to Didar Singh if he insisted Qn getting a receipt.

The application and the affidavit were therefore then returned to one Ganga Bishan.

The chit alleged to have been sent by the High Court advocate has not been produced. The application presented to appellant No. 2 in the village and returned by him in the Sub-Divisional Officer's Court, though presumably in possession of Didar Singh, has not been filed.

They would have indicated wl\_at their contents were.

That

Hoshiar Sinzh. v. ,,, Gurhtuhan 'Sin:h

Raghubat. Dayal J.

Hoahiar ingh

•• 01r1botlun Singh

ll•gl.uhar Dayal J,

i54 Sl.JPREME COUHT REPORTS (llH>iJ SUPP.

woulcl have Leen the best evidence of what was conveyed lo appellants Noa. I and 2.

Ganga Bishan's statement that he hacl drafted the uppJi . cation addressed L.1 appellant No. 2 to the off< ct that the st:1y order i;; suerl by the High Court in Jag 1\lalera N amdhari cases had bcim extended, is not the best evidence of what the application (a fair copy presumably). aetm1lly contained, an application which is in the possession of Didar Singh.

Of courso, the application and aflidavit presented to the Sub-Di\"isional Officer, are in the possession of the State. No att{)mpt was made by thn respondent to summon them or to file c!'rt-iJied copies of

those documentll in these proct'cdings.

In the aboence of the best evidence, the documents, I am not prepared to hold that the application and aflidavit filed by Didar Singh must have referred to all tho cases. !'\ ormally, he had no business to refer to the Rtav urders in the other cases and to make praycr fpr thu stay of ddivory of possession in all th<' caoes.

H" had to restrict his application am! affidavit to his own case.

Further, what.rver was st<tlNl in the •1pplication and the affidavit-, in the natme of things, was not on thl' bais of ptrsonal Jrnowlerlg<' o(Didar Singh .. Didar ingh himself <lid not even have the telephonic comrn11nic1.tion with hi8 cu1111sel at Chandigarh. The telephonic communication was between Teja Singh and that counsel.

Appellant No. 2 states-and I see no reason to. doubt that statement-that in the background of the faets about the possession over the Janel hC' clid not consider it n.dvisable n.ncl safe to ac<'ept the statement

of facts containccl in tlw n.pplication or affidavit on its face value.

Lastly, the presence of Ganga. Bisl.1an, A<lv~ cate, on the occasions of the prescntmg of the apph. cation and afiidavit to appellants Nos. l and 2, is

I I \ I

I i !

stated in a!J the affidavits. But it is only in paragraph 5 of Didar Singh's affidavit that it is stated that Balm Ganga Bishan, Advocate, prrsrnted the application and the affidavit to 1he Sub-Divisional Officer.

Ganga Bishan himself does not state so.

It is not stated anywhere that Ganga BiHhan had been engaged as counsel by Didar Singh. It would appear a bit unusual that in the presence of a duly appointed advocate, applications and affidavits be presented by Didar Singh personally and not through his counsel. On the basis of the state mrnts and the affidavits, I am not prepared to hold that Gangr• 13ishan was the duly appointed counsel for Didar Singh. He may be accompanying Didar Singh like other persons on account of his in lerest in the matter.

Fmther, any request by him to the Sub-Divisional Officer for pasing the necessary ordcis.on the application of Didar Singh, as stated by him in paragraph 3 of his affidavit, cannot lead to the conclusion that he profrssi0nally represented Didar Singh, as similar requests were made, according to his own affidavit, by the other persons also, who had accompanied Didar Singh to the Sub-Divisional

Officer's Court. The Sub-Divisional Officer, therefore, could not have treated his request to be a statement of fact about the High Court's extending the stay order up to May 23, 1958.

Ganga Bishan does not state that he told the Court that the High Court had extended the duration of the stay order or that he requested the Sub-Divioional Officer, who is also the Sub-Divisional Magistrate, to stay the delivery of possession in view of the application filed by Didar Singh. He

Bimply states:

"Several requests were made to the Sub-Divisional Magistrate by us that necessary orders on the application presented . to

Hoshiar S1ngh

•• Gurhachan Singh

Raghubar Dayal J,

1!16~

Ho•hiar Si 11:11

•• Gurbochon S-i11gh

Ratf1ubar Doyal J.

156 SCPHE!IJ}:; couHT REl'ORTii (l!J62] SUPP.

him he made and the Munaging Officer be called back."

Evn if Ganga Bishan had st1itcd that the High Court had extended the order, his st1itcment too, had no better value when he could not speak about that order on tho basis of person~] knowledge or on the basis of any communication to him by the Advocate of the High Court. Ho has not sta ted in his affidavit that he was present whe11 the order wa; i passed or that he had received 1rny communication from the High Court Advocate.

I am therefore of opinion that his merely accompanying Didar Singh and others did not invest any greater weight to the correctness of the statements made in the application aud the afiidavit.

The public officers are not to blame if they do not take at face value what is contained iu deliberatley prepared applications and affidavits.

I have already mentioned of tho way in which the crucial basic fact to be mentioned in tho petition for contempt proceedings against the appellants had not been mentioned and statements were made in a way which at. first sight could lead to the impression that the delivery of possession had been made in defiance of the order of the High Court.

I am therefore of opinion that it is not established the respondents did not rely on the statements in tho application and the a.flidavit ma/, a firk because they were bent upon delivering possession in defiance of the orrlors of the High Court.

I find in this ease that on May 16, orders of the High Court were obtained for serving the stay order upon the appellants through the petitionerreapoudent, but no such <Jrdcr was obtained for serving the order dated May 19.

In view of the urgency of the matter, the respondent and others who had obtained extension of the stay orders on

\ }

the 19th could have and should have obtained similar orders of the High Court for serving them.

If that precaution had been taken again on May 19, 1958, probably what happened snbsequently ou the spot and th'3r'3after, would not have taken place.

I am therefore of opinion that the appellants committed no contempt of Court, and would allow their appeal.

BY COURT : In accordance with the opinion of the majority, the appeal fails and is dismissed.

Appe, al dismissed.

THE NATIONAL UNION OF COMMERCIAL

EMPLOYEES AND ANOTHER

M. R. MERER, INDUSTRIAL TRIBUNAL,

BOMBAY AND OTHERS

(P. B. GAJENDRAGADKAR, A. K. SARKAR and

K. N. WANCHOO, JJ.)

.Industrial Dispute-Solicitor's profession-Work of solicitor, if an industry-Dispute with employee-Reference to Tribunal-Oompetence-IndustrialDisputes Act, 1947 (14 of 1947), •. 2 (j).

The respondents were a firm carrying on the work of solicitors in Bombay.

For the years 1956 and 1957 a claim for bonus was made against them by their employees.

Before the Industrial Tribunal to .which the dispute was referred by the State Government for adjudication under the provisions of the Industrial Disputes Act, 1947, the respondents contended that the profession followed by them was not an industry within the meaning of s. 2(j) of the Act, that the dispute raised against them was not an industrial dispute under the Act, and that, therefore, the reference made by the Government was incompetent.

Held, that the work of solicitors is not an industry within the meaning of s. 2(j) of the Industrial Disputes Act, T947 and that, therefore, any dispute raised by the employees of

Hoshiar Singh

Gurbachan Singh

Raghr, bar Daya/_ J,

:l'ebruary 13.

HOSHIAR SINGH

GURBACHAN SINGH

S. K. DAS

K. SUBBA RAO

DAYAL, JJ.

Art. 226

Art. 226

s 01

s. 2(j)

s. 2(j)

Industrial Disputes Act


\ }

3 S.C.R.

SUPREME COURT REPORTS . 157

the 19th could have and should have obtained similar orders of the High Court for serving them.

If that precaution had been taken again on May 19, 1958, probably what happened snbsequently ou the spot and th'3r'3after, would not have taken place.

I am therefore of opinion that the appellants committed no contempt of Court, and would allow their appeal.

BY COURT : In accordance with the opinion of the majority, the appeal fails and is dismissed.

Appe, al dismissed.

THE NATIONAL UNION OF COMMERCIAL

EMPLOYEES AND ANOTHER

M. R. MERER, INDUSTRIAL TRIBUNAL,

BOMBAY AND OTHERS

(P. B. GAJENDRAGADKAR, A. K. SARKAR and

K. N. WANCHOO, JJ.)

.Industrial Dispute-Solicitor's profession-Work of solicitor, if an industry-Dispute with employee-Reference to Tribunal-Oompetence-IndustrialDisputes Act, 1947 (14 of 1947), •. 2 (j).

The respondents were a firm carrying on the work of solicitors in Bombay.

For the years 1956 and 1957 a claim for bonus was made against them by their employees.

Before the Industrial Tribunal to .which the dispute was referred by the State Government for adjudication under the provisions of the Industrial Disputes Act, 1947, the respondents contended that the profession followed by them was not an industry within the meaning of s. 2(j) of the Act, that the dispute raised against them was not an industrial dispute under the Act, and that, therefore, the reference made by the Government was incompetent.

Held, that the work of solicitors is not an industry within the meaning of s. 2(j) of the Industrial Disputes Act, T947 and that, therefore, any dispute raised by the employees of

Hoshiar Singh

Gurbachan Singh

Raghr, bar Daya/_ J,

:l'ebruary 13.

.ht ve; onal Union

of Commncial

Employr1•

v. .111.R. Mtiotr, lntfusttial Tribunal

Bombay

158 suPRE:\[E COURT REPORTS (1962] SUPP.

tllc solicitors against the1n cannot be n1adc the subject of r.ferfn•e to the Industrial Tribunal.

'I'he cliting-uihing fl':ature of an in<lustr~· is that for the produrtion of goods or for the rr.ndcring of sc:r\icr, rooperation bel\\'Ct-ll capital and labciur or between the ctnploycr and his t>mplo)CC rnut lie <lirrct.

A prrson f.Jl!ovi11~·:· a liberal profcs-;!on doe; not carry on his

profesion in any intclli!jihle sense \\'ith thraci ivr co-operation of his emplc1y!rs, and the princip; d, if not 1hc sole, capital \\hirh he hriI!s into his pr0fcsi1.n is his rrrial or peculiar intr.ll<Ttttal ar, d educational rquip111cnt. (; onsqucntly, a liberal profts:-:on like that of a o!icitor is outs!clc th1: definition of "indusrr~" unUcr s. 2(j) of the i\ct.

State f Bombay v. Tl.e liospit;1! Jfaz, J,1or Sab/1a, ( l 960) 2 S.C.R. 8~)G, rxplaincd and clistinguhhcd.

Brij Jfol.an Bagarirt v .• '\'/./. G'hrttterju:., 1\.l.H .. l9j8 Cal. 4GO and/). l'. /)un<lfrrltfP \'. G. J>. tlfu/, lt~.rjt>.r., t\ l.R. l95a c:al. 465, approvrd.

• Ohscrvations in 'f'r, U:ratr:d Jfuniriprzl nnrl ,'-,'/, irr. Council En1p!oyees' (} 1tion (If .l U.'i{ralia v . .\1 e /!Jou r11e Cor_JYJrat ion, { 19 J 0 J 2n C.L.R. 'il!I<, relied on.

Crn1. ArrELL.ll'E Ji:msnrCT!ON: Civil Appeal

o. 24 of 1!)61.

Ap1,.al fn>n1 the judgrn011t and ord"r datl :'{ovcmber 20, ltl:JS, of the 1.l:irnlny I fo:h Court in

C• • I c. . , \ 1 t.

N ')~ '') f I'}~ . • 1pec1a. l\'I .- pp 1r, a 1011 .. 0. -'~· o ,,)'.

A. S II. Cluiri and /(. R. Clwwlknri, for the appellant,,.

S. '/'. !Jcwi, and V.J. Jlerclumt, for responcJ., nts -.

Nos. 2 and 1 and the lntcn<mcr (l'hl' Bombay Incorporat,.d Law Socidy).

J 9fi:.'. February I :i, Th" .J 11rlgm1in t of tho Court was r.leli, ered by

GA.JE~JJIUGAllKAlt, , J.-Thi8 appal arises out of a di:; put" between the app1dliinh, the l\ationul Union of Ctm11nrrcial Employc<'s & Anr., and tho rcsponcle1.ts P<'reira, Fazalbhoy tmd lle, ai who constitult• an At t.orncys' firm by name Jl/o. l'erPirn

Fazalbhoy & Co. It 1ippear~ that iu August, 1\)57

the appellant wrote to the respondl"nt firm setting forth certain demands on behalf of its employees.

These demands related to bonus for the years 1955- 56 a!ld 1956-57 and to certain other mattel'f~ As the parties could not agree, the dispute was taken before tho Conciliation Officer.

Th'J Conciliation Officer also failed to bring about a settlement and so he su bmittod his failure report to the Gov, rnment of Bombay. Thereafter, the :State Government referred the dispute in regard to the bonus for the two years 1956 and 1937 for adjudication before an Industrial Tribunal under section 12(5) of the Industrial Di:; putcs Act (No. 14 of 1!1±7) (hereinafter called the Actl.

Before the Tribunal, the respondents raised a preliminary objection. They urged tlrnt thJ profession followed by them was not an indu,; try within the meaning of the Act, and so .tho dispute raised against them by the appellants was not an industrial dispute within the meaning of the Act; the contention was that the dispute not being an industrial di; pute under tho Act, the reference made by the Government was incompetent and so, the Tribunal had no jurisdiction to adjudicate upon this dispute.

The Tribunal upheld the preliminary objection and recorded its conclusion thn, t it httd no jurisdiction to n.djudicate upon the dispute :is it was not an industrial dispute.

The order thus passed by the Tribunal was challenged liy th0 n, ppellants before the High Court at Bombay by specin.I Civil Application No. 2789 of 1958 filed under Articles 226 and 227 of the Constitution.

Tho High Court considered the rival contentions misecl before it by the appelln.nts and the respondents and came to the conclusion that the respondents' firm did not constitute an industry and so tho dispute between the said firm and its employees was not an industrial dispute which could validly form the subject-matter of a reference under the Act. In that vkw of the matter, . the High Court held thn, t tqe Industrial Tribunal Wl\S

The .Natiollfll Union of Comme, cial

ErnpJoyets

Vo M.R. M, lier, fnd9strial T, ibunal,

Bombay

Gajenoragadkar J.

160 SUPREME COURT REPORTS (1962] SUPP.

Tht , Vatio11af Union

of CommtrciJl

Emp/o.,•tta ·

right in refusing to mako an order on the reference and so the appellants' writ petition wa.s dismiBBed.

The appellants then applied for and obtained a certificate from the High Court and it is with the said certificate that the present appeal has come to this c, mrt; and the short question which it

v. .M.R . .\lt1'er, Tndustrial- Tribunal,

Bombny raises for our decision is whether the respondents' firm which carries on th<' work of Solicitors in Born 'iay can be @aid to constitute an industry under s. 2(j) of the Act..

G•fendra1odkar J.

In dealing with this question, it would be necessarv to refer to the decision of this Court in the Staie of Bombay

v. The Hospital Mazdoor Srtbl11l ( 1 ).

Both parties a.greed that the present dispute would have to be determined in the light of the decision of this Court in that case. Let us, therefore, indicate the effect of tho said deciion.

In the Ho, pital Ca8e (1), this Court had occasion to consider whether the services of workmen cng1tged as ward A<•rvants in the .J.J. Group of Hospitals, Bombay, under State control were wol'kmcn a.nd whether the Hospital Group itself constituted an industry under the Act or not.

Both the questions were answ<rcd in the aflirmati\e and in rendering thoRe answern, the scope •Incl effect of the definition of the word 'industry' used in s. !!(j) of the Act wa.s conHidered. This Court held that the words

used hv s. '.? (j) in rh-fining 'industry' in a.n inclu- . sive manner WNO Of wide import and had to be

!<'ad in their wide dtnot.ation.

Ev<'n so, this Court state<! "that though s. 2(j) useH W(irus of very wide rlcnotation, n, line would havl' to be drawn in a fair and just manner so as to exclude some callings, servic<'s or undertakings from its purview. If all the words used are given t.beir widest meaning all son ice~ and 'lll callings wou Id come within the purviow of the rlefiniti<Jn; even s"rvice renden:cl by a servant purely in a personal or domeet.ic matter

S.C.R.

SUPREME COURT HEPORTS 161

or even in a casual way would fall within the definition. It is not and cannot be suggested that in its wide sweep the word 'service' is intended to include service h Jwsoever rendered in whatsower

capacity and for whatsoever reason." (p. 876).

Th<tt is why this Comt proceeded to consider where the line should be drawn and what limitations can and should be reasonably implied in interpreting the wide words nsed in s. 2(j).

In dealing with the somewhat difficult question of drawing a line, this Court observed: "as a working principle, it may be stated that an activity systematically or habitu11lly undertaken for the production or distribution of goods or for the rendering of material services to the community at. large or a part of such community with the help of employees is an undertaking, Such an activity generally involves the co-operation of the Pmployer and the employees; and its object is the satisfaction of material human needs. It must be organised or arranged in a manner in which trade or business is generally organised or arranged. It must not be casual nor must it be for oneself nor for pleasure.

Thus, the manner in which the activity fo question is organisel or arranged, the condition of the co-operation between employer aml the employee necessary for its success and its object to render material service to the community can be regarded as some of the features which are dis tine ti ve of activities to which s. 2 (j) applies." (p. 879).

It was in the light of this working princi pie that this Court came to the conclusion that the State was carrving on an undertaking in running the Group of Hospitals in question. In dealing with the question of hospitals, this Court also r0ferred to a material circumstance which supported the conclusion that running of hopitals is an inrlnetry under the Act. Secthn 2 (n} of the Act' defin<'s "public utility service" and under it fiv11 separate catogories

196t

The }lation1l Union of Commercial

Employees

M.R. Meher, Industrial Tribun•l,

 Bomb av

Gajendragadkar J.

TM NaliJnal Unio'I

a/ Comme1cial

Employ!t•

M.11. Meiiu, I nd11 rfrial T1ibu11., J,

Bombay

01Jjtn:l1a.~1JJkar J,

162 SUPREME COVRT REPORTS [1962) SUPP.

of public utility servic<> are rnum<'ratecl. Clause (vi) of s. 2 (n) provides that .an, v industry spccifit•cl in the chcdule us thnrein indic:; tccl woulrl alsri be a puhlic utility service. In 1956, Entry :N"o. !) among>t

others, was a<lclccl in the First 8..Jwclnlc Apecifying another public utility SPrvicc. This Entry refer~ to service in hospitals and disp.0nsaries.

Thl'rnfore, it was clear that since the validity of this entry was not clisputecl, aftor sPr'l'ice in hospitals and disfl<'nsarics ws included in the First chedule. it was inarguable that the hoHpital would not be an industry under the Act; unless a ho"pital was an industry under the Act, service in the hospitals could not. bl' regarded as p11 hlic utility sen ice.

That is how this Court h"1d thnt in rnnning the J .• T. Hospital Group in Bomhny, the Statl' Gov1rnment wa.s c:nrying on an undertaking whic:h was an

indust1y undPr H. 2(j).

Th" qnct inn which calls for our decisi011 in the prest'nt appe:d is : wbnt would be the result uf the application of th•• working . test Jait.l down hy this Court. in the llospita.l cos~ (1 ) in relation to the controvPrsy bct.we!'n thP part i('s in the pnsent appeal ?

i\Ir .. Chari for t.he appellants contends that in dl'aling with tl' question as to wluthrr the respond1nts carried on an i11d11Rtry m1drr s. !2(j), it is necessary to distinguish between profession'.tl aervire nnderrd by an indiYidirnl acting by hims..Jf and similar senice irnclererl by a firm consisting of several partners, because h" >uirrsts that proft'H sional servire inrlivicluallv rci1derecl st>Lnds on a cliffonnt footi11g from profes, iona I sen ice which is rendered in an organioetl an<l instit11ti., nali;;1, d manner. Th" organisation of profossiunal H<'l'\'irp which kads to it.s institutionali"ation att.raets the provisions of s. 2(j) inasmuch as in such organised srrvic:e thf're is bound to he co-orwration b"twef•n the l'lllploycrs and the cmployrfS c11gagecl by the firm for doing diffcrP11t cat<'guries 1.1f work, Accor<ling to l\Ir. Chari, the employml'nt of

(l I [1960] 2 S.C.R. 866.

.. -

different categorit:s of staff facilitates the work of the solicitors and it enables them to dispose of more work more quickly and more efficiently and he suggests that the presence of . such co-operation between the employees and their employers in the organisation of the solicitors' firm satisfies the working test laid down by this Court in the Hospital case(1 ).

In our opinion, the distinction sought to be drawn bv Mr. Chari between professional service rendered by an individual actini:r bv himself and that rendered bv a firm is not logical for the purpose of the application of the test in question.

What is true about a firm of solicitors would be equally true about an individual solicitor working bv himself. As the firm engages different categories of employees. a single solicitor also eng•.ges different categories of emnloyees to carry out different tvpes of work and so the presence of co-oper•tion .between the employees working in a solicitor's office and their emplover, the solicitor, could be attributR-d to -the work of a single solicitor as much as to the work of the firm; _and, therefore, if Mr. Chari is right and if the firm of solicitors is held t.o be an industry under the Act, the office of au individual solicitor cannot escape the appliration of the definition of s. 2(j), That is why we think it would not be reasonable to deal with the matter on the narrow grounrl suggester! by Mr. Chari by confining our attention to the organisational or . imtitutionalise<l aspect of a solicitor's firm.

When in the Hospital case (1) this Court referred to the organisation of the undert1tking involving the co-operntion of ca pit1tl and Jabour or the employer and his employees. it obviously meant the co-operation essential and necessary for the purpose of rendering nrnterial Rervice or for the purpose of produ, ition. It would be realised th1tt

the concept of industry postulaes pMtnership

(!) [1960) 2 S.C.R. R66 •

Tk National Union

. oj lommercial

Emp/o)'ees v.

M.R.Meher, lndustrifll Tribunal,

Bombay

Gajendragadkar J.

19G2

711t Jlah'onnl L'nfott

of Commrrial .

/;"mp/o)'ttS

J.f.ll. !ifth1r, /nt'ttslrlal 11ilun:d,

Bwnbo;·

164 SUPREl\IE COURT REPORTS [19t>2] SCPP.

bctwcPn capital anrl labour or hetwecn the employer ancl his employee~.

It is unde1 this partncr:; hip thn.fthc employer contributes hiA capit:l nnrl the emplo; veP8 their labour a11rl the jnint •.l••ntrihution

of capital anrl Jabour leads dirlldly to tho produe tion which the industry h<IA in view. fn other

word~. th" co.operatinn betw<'An c.ipitill an•! hhour

or h< tween the emplo~•cr ancl hi< employc<'s w}iich is treated :is a working t•, st in determinin'..( whcth•lr any activity amounts to an industry,

0 iS tho C<l operation which is directly involved in th" prorluc. tion of goods or in the rendering of sen-ice.

It. cannot be suggested that every form or ll.Bfl•!Ct of human activity in which capital and lahnur cooperate or l\mploycr and <'mplnyees assit !'a1.h other i~ an ind•istry.

The <listi11ir11iHhing feature of an industry iH that for the prnduction of goods or for the renrlering nf RCrYice, C(1opPration bdwc"n 1.apital ancl labour or between the i:mploycr and his em1iloyc<'A must be direct anrl must be ssential.

Tak<', for instance, a textile mill.

The cm ployP1' cont.ributPR capital and insla lls thf' rna<'hilllry r"gui"it,. for the millsanrl tho cm, plo~1.'<'S cnntribntl' th!'ir lahflur and by their co-opemtion ns;; ist the <'mplPyer in produ1.ing the tt'xt.ilc goods.

Whcn \\"(' refor to tPxtilc labour in r<'latjon to industrial

disputes under t.he Ad, we refer to workmen who

<U'tl engagl)d in the wo1k of producing textile l!Onds.

Tt is obvious that in l'Pf!anl to textile mills, a largr' majority of workmen concernerl in carrying out the acti\•iti"' of most of the departm<'nts nf tlw l•.'Xtilc mill• contribute clircetlv in 01w Lmn or another to the procl11cti"11 nf t .. x.tifo goccls.

It me, v he that '"en in a t<'xtile mill a very rniall minoril y of wnrknwn may not be clircf't.]y C<>IH'<'rned wit Ii the production of tPxtilP goorlR; !mt. <-Yll sn, their 1nrk iA so int.cirrall~· conncct<'d with tlw \\'Ork carriNI <>I\ by the majoritv of wnrkmPn "mplo~·"d thn.t they are tnal<'d as forming pall. (lf th~ same la hour forC'~.

Thu~, there cmi hll no clou lit t I.at

when a textile mill is regarded as an industry, it is because capital and labour jointly contribute to the production of goods which is the object of thA

mill.

Let us consider the case of the hospitals.

In the hospitals, the service to the patients begins with proper diagnosis followed by treatment, either medical or surgical, according to the requirements of the case. In the case of medical treatment, the patients receive medical treatment according to the prescription and are kept in the hospital for further treatment. In surgical cases, the patients receive surgical treatment by way of operation and then are kept in the hospital for further treatment until they are discharged.

During the period of such treatment, all their needs have to be attended to, food has to be supplied to them, nursing assistance has to be given to them, medical help from time to time has to be rendered and all incidental services required for their recovery have also to be rendered.

Now, in the c<>se of the activities of an organised hospital, the co operation of the employees is thus directly involved in rendering one kind of service or another which it is the duty of the hospital to render. It is true that the patients are drawn to the hospitals primarily because of. the doctors or surgeons associated with them. But there can be no doubt that the work of the hospital and its purpose are not achieved merely when a surgical operation is performed or medical prescription provided. After medical treatment is determined or a surgical operation is performed, the patient coming to a hospital as an indoor patient needs all kinds of medical assistance until he is discharged and the services rendered to him both initially and thereafter until his discharge are all services which the hospital has been ecltablished to render and it is in the rendering of the said services that the employees of the hospital co-operate and play their part. That is how the test of co-operation between

The National [Tnion

of Commercial

Employeer

M.R. Me!ier, lnduJtrial 1Tibunal,

Bomhay

Gajendragadkar J.

Tl.t N a•'ional Union

of Commt1cial

Empto)'tt"'

Jf.R. Jlfehtr, ln.i1utrial Tritwiol,

BcmWay

Gqjt11dragadku J.

166 SUPREME COCRT REPORT.S [19b2] SCPP.

tho employer a11d his employees is satisfied in rcg'.lrd to hospitafa which are properly organibed aml maintained. It is, of course, trne that the quality, the importance and the nature ot the service rendered by different categories of !'mployecs ill a hos pi ta! would not be the same, but nc\erthclesH, all the categories of service rendered by re,; per:tive classes of employees in a hospital are eHsential for tho purpose of giving service to the pati!'nls which is the objective of the hospital. That is how tho hospitals satisfy the test of co-operation between the employer and his employees.

Does a solicitorn' firm satisfy that test ?

Superficially onnsidercd, the solicitors' firm is 110 doubt organiHcd as an industrial concern would be organisNI. There are different catgo1 i!•s of sen-a11ts employed by a firm, each category being assigned separatB duties and functions.

But it must bo remembered that the service rendered by :\ Rolicitor functioning either individually or working together with partners is service which is essentially individual ; it depends upon tho professional equipment, knowledge 'lnd efficiency of the soliritor concerned.

ubsidiary \vork which is purely of an i11cidcntal type and which is intended to assist the solicitor in .doing his job has no direct relation to the professional service ultimately rendered by the solicitor.

For his own convenience, a solicitor may employ a clerk because a clerk would typB his opinion ; for his conve11ienc<', a solicitor may employ menial servant to keep his chamber clean and in order ; and it is likely that the number of clerks may ho large if the concern is prosperous and so would be tho number of menial servants.

But the work done either by the typist or the stenographer or by the menial servant or other employees in a solicitor's firm is not directly concerned with the sorvico which the solicitor rend ors to his client and cannot, therefore, be said to

satisfy the test of co-operation between the employer and the employees which is relevant to the purpose. There can be no doubt that for carrying on the work of a solicitor efficiently, accounts have to be kept and correspondence carried on and this work would need the employment of clerks and accountants. But has the work of the clerk who types correspondence or that of the accountant who keeps accounts any direct or essential nexus or connection with the advice which it is the duty of the solicitor to give to his client?

The answer to this question must, in our opinion, be in the negative. There is, no doubt, a kind of co-operation between the solicitor and his .employees, but that co-operation has no direct or immediate relation to the professional service which the solicitor renders to his client. Therefore, in our opinion, it is difficult to accept the plea that .a solicitor's firm carrying on the work of au Attorney is an industry within the moaning of s. 2(j).

There is no doubt that the words used in s. 2(j) are very wide, but as has been held by this Court in the case of Hospitals,(') it is necessary to draw a line in a fair and just manner putting some limitation upon the width of the said words and a working test has been enunciated in that behalf. The application of the said test to the facts in the preRent appeal leads to the conclusion that the work of solicitors which the respondents are carrying on as a firm is not au industry under s. 2(j} of the Act. That is the view taken by the Bombay High Court and we think, that view is right- It may be added that the same view has been taken by the Calcutta. High Court in the case of Brij Mohan Bagaria v. N. 0. Ohaterjee(') and D. P. Dund, erdele v. G. P. Mukherjee(').

Looking at this question in a broad and general way, it is not easy to conceive that a liberal profession like that of an attorney could have been (!) [1960] 2 s.c.R. 668. (2) A.LR. 1958 Cal. 460.

(3) A.LR. 1958, Cal. 465.

The National Union

of Commercial Employees

~.

M.R.'Meher, Industrial Tribunal,

Bombay

Gajendragadkar J.

17i1 , Vtltirmal .'Jnini

of Commerciol

Empl<J'Jtti

v, &l.R. ,\1ehtr, In-.liutriul r, ibun11/,

lJoonbay ·

GojttulragadJ;4T J.

SGPREME COURT REPORTS (19621 SUPP.

intendecl. by tho Legislature to fall within the defi nition of "industry" under s. 2(j).

The very conce pt of the liberal professions has its own spechl and di8tinctive features which do not readily permit tho inclusion of tho liberal professions into the four corners of industri<l l:w. The essential basis

of an industrial dispute is thH.t it is a dispute arising

between capital and labour in enterprises whortJ capital and labour combino to produco commodities

or to render sorvice.

This essential basis would be absent in the case of liberal professions.

A person following a liberal profe::1sion does uot carry on his professio11 i11 any intelligiblo tionRo with the activo co-operation of his employees and tho principal, if not thti solti, capital which he brings into his profession is his special or peculiar intollcctual and educational equipment. That is why on broad and general con;; ideratiollB which cannot be ignored, a liberal profession like that of an attorney must, wo think, be deemed to be outside the definition of "industry'' undor section 2(j).

In this connection, it would be useful to refer to the observation made by Isaccs and Rich JJ., in tho Ferleruted Jlunicipal and Shire Cauncil Employees' Union of Au.stralia v . .Melbourne Corporatimi (1).

"Tho concept of an industrial dispt; te", said the learned Judges, may thus be formulated: Indu8trial disputes occur when, in relation to operations in which capital and labour are contributed in cooperation for the tiatisfaction of human wants or desire8, those t>ngaged in co-operation dispute as to tho basis to bB observed, by the parties engaged, respecting either a sharo of the product or any other terms and conditions of their co-operation.

This formula exclurlos the two extreme contontione of the claimant and the respondents respectively. It excludes, for instance, the legal and tho medical profeSBions, because they are not carried on in any intelligible sense by tho cooperation of

(I) (1919) 26 C.L.R. 508, S54.

.. '

3S.C.R .

SUPREME COURr REPORTS 169

capital and labour and do not come within the sphere of indaatrialism. It includes, where the necessary co-operation exists, disputes between employers and employees, employees and employees, and employers and employurs. It implies that "industry" to lead to an industrial dispute, is not, as the claimant contends, merely industry in the abstract sense, as if it alone effected the result, but it must

be acting and be considered in association with its co-operator "capital" in some form so that the result is, in a sense, the outcome of their combined efforts". Those obaervations support the view which we h we taken about the character of co-operation between the employer and employees which affords a relevant test in determining whether the enterprise in question is an indubtry or not. Co-operation to which the test refers must be co-operation between the employer and his employees which is essential for carrying out the purpose of the enterprise and the service to bo rendered by the enterprfae should be the direct outcome of the combined efforts of the employer and the employees.

There is one more minor point which still remains to be considered.

Mr. Chari argued that it would be idle for the respondents to contend that the work of their firm is not an industry under s. (2j) because they have themselves described their work as the work of carrying on business of solicitors. It appears that the document of partnership executed between the different partners of the firm provided, inter alia, that all expenses o! the business of the partnership or losses incurred in carrying on the business of the partnership shall be borne out of the profits or capital of the partnership. It is on the use of the word "bu8iness" in this clause that Mr. Chri relies. In support of his argument, he referred us to a decision of .Farwell, J., in Dickson

v. J <Y11R, S ( l ). In that case, the Court was , concerned to examine the validity of an agreement between the plaintiff, solicitor, and his junior clerk, who

(1) [1939) 3 All. E.R. 182.

The tVationJl Uniori

of 0 ommercial Employees

v, 111.R. Meher, lr11115lr1at Trih•111al,

Bombay

, Gajndragadkar J.

1"h1 Nat1'.unol Union

ofCammtrcial

Employtts

v. ., l.ll. Mther, lndu11trial Trib1m2l,

llomhll}

Gaje11dragadlar J.

liO SUPBE)IE corRT REPORTS [Jf.(i2: SUl'P.

was sub8cqucntly u1ticlcd to him.

This agrermcnt provided that the latter would 11ot "at any time hercaft.er practise as a solicitor within a radious of

15 miles from the Town Hall, Hanley, aforesaid, or solicit unv client of the solicitor".

Farwell J., held that "the com binat.ion of a rcHtrictinn over an area so great as a.. ra<liot1s 15 mile~ an<l one extending to the whole life of the defendant, articled clerk, was, in the circumsta11ccs, wider than mi.s necessary for the protec; tion of the plaintiff and was, therefnre, unenforceable as being iu undue restraint of trade".

The argument is that the validity of an agreemtnt between a solicitor and his articled derk was tested on the ground that it was an agre0~11e11t in rci; traint of trade and so tho solicitor's work must be hrld to be a "trade" under s. :!(j). There is obviously 110 force in this argument. If in tlwir deed of partnership the respondents described th1, work of partner"

ship as the bu8iness of solicitorn, that can hardly assist the apprllants in contending that the work carried on by the firm is industry under s. 2(j). The work of a solicitor i;, in a loose sense, of course, of business, a11d so if tho solicitors f!nterrd into an agreement in restraint of trade, it.s validity would have to be judged on tho basis that their work in the nature of business.

Thut, however, is hurdly relevant in determining the quc8tion as to whether the said work is an industry under section 2(j); as

we have already made it clear, the definition of thn word "industry" is couched in words of very wide denotation. llut that precisely is the reason why a line has to bo drawn in a just and fair manner to domarcate the limitations of their scope and that necessarily leads to the adoption of somo working test.

Therefore, in our opinion, the argument that the respondeuts themselves have eallcd their work as "business" is of no assistance.

The result is, the appeal fails; there would be no order as to costs.

Appeal dismissed.

M. M. R. MEHER, INDUSTRIAL TRIBUNAL, BOMBAY AND OTHERS

P. B. GAJENDRAGADKAR

A. K. SARKAR

K. N. WANCHOO, JJ.

s. 2(j)

s. 2(j)

Industrial Disputes Act

s. 2(j)

section 12(5)

Articles 226 and 227

s. 2(j)

s. 2(j)

s. 2(j)

s. 2

s. 2

s. 2(j)

[1960] 2 S.C.R. 866

s. 2(j)

s. 2(j)

s. 2(j)

s. 2(j)

section 2(j)

s. 2(j)

section 2(j)