410 SUPREl\'IE COURT REPORTS

KANUMUKKALA KRISHNA MURTHY

STATE OF ANDHRA PRADESH

[1964}

[K. SOBBA RAO, K. C. DAS GUPTA AND RAGHUBAR DAYAL, JJ.J ~

Indian Penal Code, 1860 (Act 45 of 1860), ss. 415, 419-Cheating -Public Service Commission, false representations to-If deception of Government.

The appellant applied for a post advertised by the Madras Public Service Commission, making certain representations in his application which were found to be false. He was convicted under s. 419 Indian Penal Code for having cheated the commission. This conviction was confirmed by the Sessions Judge and the revision was dismissed by the High Court. ' Held: (i) Cheating can be committed in either of the two ways described in s. 415 Indian Penal Code. 'Deceiving a person' is. common in both the ways of cheating.

(ii) The appellant's misrepresentation to the Service Commission continued and persisted till the final stage of the Government itself was deceived by the misrepresentation made in the application presented to the Service commission.

 The Service Commission is a statutory adviser to the Government in the matter of appointment to the Service. DecePtion of such an adviser is deception of the Government which is expected to pay heed to its advice and act accordingly.

State of U.P. v. Manbodhan Lal Srivasta'IJa [1958J S.C.R. 533, The Crown v. Gunput, 1868 Pun, i. Rec. Cr!. Case No. 6, P. E.

Billinghurst v. H. P. Blackburn, 27 C.W.N. 821; Legal Remembrancer v. Manmatha Bhusan Chatterjee, & Legal Remembrancer v. Hridoy Narian I.L.R. 51 Cal. 250, Emperor v. Faza!

Din (1906) 4 Cr. L.J. 355, Queen Empress v. Appasami, I.L.R. lZ

~/lad. 151. As/:iwani Kumar Gupta v. Emperor. I.L.R. 1937 (1) Cal. ?l and In re: Hampshire Land Company, [1896] (2) Ch. 743. referred to.

CRIMINAL

APPELLATE JURISDICTION: Criminal Appeal No. 1,34 of 1962. Appeal by special leave from the judgment and order dated July 17, 1962 of the Andhra Pradesh High Court in Criminal Revision Case No. 298 of 1961.

A. S. R. Chari, G.D. Gupta, S. Balakrishnan, R. K. Garg, S. C. Agarwa/a, D. P. Singh and M. K. Ramamurthi, for the appellant.

S. G. Patwardhan and B. R. G. K. Achar, for the respondent.

March 23, 1964. The Judgment of the Court was delivered by

Raghubar Dayal, J.

RAGHUBAR DAYAL, J.-The facts leading to this appeal. by special leave, are these: The Madras Public Service Commission, hereinafter referred to as the Service Commission, by its notification published

in the Fort St. George Gazette dated August 3, 1948, invited applications for appointment of Assistant Surgeons in the Madras Medical Service (Men's Section), from persons who had rendered temporary service as Assistant Surgeons in that Ser- vice at any time between September 3, 1939 and December 31, 1947 and from persons who had rendered War Service and possessed the qualifications mentioned in paragraph 3 of the notification. Paragraph 3 of the notification, inter alia, reads:

"Applicants must satisfy the Commission-

(a) that they are registered practitioners within the meaning of the Madras Medical Registration Act, 1914;

(b) that they possess the L.M.S. degree or the M.B., . B.S., degree of a University in the Province or an equivalent qualification."

The appellant, who was at the time serving as a Civil Assistant Surgeon in the Madras Medical Service on a temporary basis, applied for the permanent appointment to the posts notified by the Public Service Commission. In this application he made the following representations, which have been found to be false, by the Courts below :

(i) that his name was Kaza Krishnamurthy;

(ii) that his place of birth was Bezwada, Krishna district;

(iii) that his father was K. R. Rao of Bezwada; and

(iv) that he held the degree of M.B., B.S., TI Class, from the Andhra Medical College, Vizagapatam, Andhra University.

On these facts, the appellant was convicted of the offence under s. 419 I.P.C. for having cheated the Madras Public Service Commission by personating as Kaza Krishnamurthy and misrepresenting that he had the necessary qualifications for the post advertised inasmuch as he held the degree of M.B., B.S.,

and that this deception of the Service Commission was likely to have caused damage to its reputation.

It may now be mentioned that the appellant was also tr, ied for offences under s. 420 and s. 465 I.P.C. in connection with certain acts committed by him in June and October, 1944. The trial Court acquitted him of the offence under s. 465, but convicted him of the other offence. He was, however; acquitted on appeal, by the Sessions Judge, of the offence under s. 420 I.P.C.

The appellant's conviction under s. 419 I.P.C. was confirmed by the Sessions Judge and the revision against that

Kanu.m11kkala Krishna Murthy

State of Andhra

Pradtsh

Rayhubar Dayal, J,

KanumUJ:ala Kriahna Murlhy

SUPRE1\1E COURT REPORTS [1964]

order was dismissed by the High Court. It is against this order of the High Court that the appellant has preferred this appeal, after obtaining special leave. v.

Siok of A71dlwa It has been contended for the appellant that on the facts Praduh estabtished in the case, no offence under s. 419 l.P.C. is made llagkobar Dayal, J. out against him, as the appellant's efficiency as a surgeon is not in dispute, he having secured good reports from his superiors during the period of his service and as therefore there could be no question of the Service Commission suffering damage in its reputation.

On the contrary, it is urged for the State that the offence of cheating is made out against the appellant as he deceived the Service Commission and that such deception was likely to damage its reputation as he deceived the Service Commission and obtained from it 'property' viz., the admission card entitling him to sit at the Competitive Examination for the appointment of candidates for these posts, and as the appellant also deceived the Government of the State by his false representations. and dishonestly induced it to appoint him in service and pay him salary during the period of his service.

Section 415 I.P.C., defines 'cheating' and reads:

"Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'cheat'.

Explanation-A dishonest concealment of facts is a deception within the meaning of this section".

Cheating can be committed in either of the two ways described in s. 415 l.P.C. 'Deceiving a person' is common in both the ways of cheating. A person deceived may be fraudulently or dishonestly induced to deliver any property or to consent to the retention of any property by any person. The person deceived may also be intentionally induced to do or to omit to do. anything which he would not have done if not deceived and which act of his caused or was likely to cause damage or harm in body, mind, reputation or property.

The Courts below, as already stated, found that the appellant cheated the Service Commission by deceiving that he held the degree of M.B., B.S. and by intentionally inducing the

7 S.C.R.

SUPREIIIE COURT REPORTS 413

Commission to recommend his appointment to the post of Civil 1964 Assistant Surgeon, 11 Class, and that this act of the Service Kanumukkala Commission was likely to damage its reputation as the appel- Kri•h•• Mu..U.y !ant did not really possess the degree of M.B., B.S. Assuming, s ,; A_ dMG without deciding, that such a deception of the Service Comtat~%.U:h mission and its recommendation could, in certain circum- - stances, cause damage to its reputation, we are of opinion that Raghubar Dayal, 1• in the circumstances of this case there was no likelihood of the causing of such damage to its reputation. There is nothing on the record to show that the Service Commission could have ordinarily detected the deception or that the appointment of the applicant to the post in the Medical Service was the appointment of a person who proved to be inefficient. On the contrary, the evidence on the record shows that for about

10 years between his appointment and the institution of this case, he served efficiently and obtained good reports from the Departmental Superiors. His incompetency for the post was due (O his having not obtained the minimum academic qualifications prescribed for the candidates for these posts. We are therefore of opinion that the appellant has not committed the offence of 'cheating' as defined in the latter part of s. 415 I.P.C., even though he had deceived the Service Commission by re- • presenting himself to be a duly qualified candidate, and thus induced it to select him for the post.

It was argued for the State that the Public Service Commission held a competitive examination and must have therefore issued an admission card to the appellant entitling him to sit at that ccmpetitive examination and that therefore the appellant having induced by deception the Service Commission to deliver to him the admission card which is 'property', committed the offence of 'cheating' as defined in the first part of s. 415 I.P.C. There is no force in this contention for the simple reason that there is nothing on the record to indicate that an admission card was issued entitling the appellant to sit at the competitive examination. In fact, no examination as such took place, and the contention for the respondent appears to have been made under a mis1pprehension arising out of the letter of the Secretary of the Service Commission to the Surgeon- General with the Government of Madras stating thQt he was enclosing the list containing the names and other particulars of 45 candidates who were successful at the competitive examinatien held by the Commission for the direct recruitment of Civil Assistant Surgeons. Class JI (Men) in the Madras Medical Service. It is however clear from the record that the candidates were simply interviewed by the Commission. There is nothing on the record to show that any written examination to wh'ch admission was by admission cards. took place. The judgment of the Magistrate states:

19"

Kan11muHalG KrnAna .Murthy

Sum of Andhra

Praduh

Boghbar Dago I, J.

"The accused was interviewed by the Service Commission as seen from Exhibit P-70, extract of Service Commission particulars".

The same statement is made in the judgment of the Sessions Judge who said:

"The accused sent an application Ex. P-72 ...... showing that he passed M.B., B.S. degree examination, and on receiving it and interviewing him, the Public Service Commission selected him as Civil Assistant Surgeon, Class I".

The High Court states the same" in its judgment. It said:

"In 1948 he sent an application to the Madras Public Service Commission for selection as class JI Civil Assistant Surgeon and was selected ac such 'following an interview by the said body''.

In these circumstances, we cannot hold merely on the basis of suggestions, that any competitive written examination was held and that any admission card was issued to the appel lant entitling him to sit at the examination and, consequently. cannot hold that the 9ffence of cheating by dishonestly inducing the Service Commission to deliver him property was committed by the appellant. •

The only other question to determine now is whether the appellant deceived the Government of Madl'"ds and dishone;; tly induced it to deliver something in the form of salary to the appellapt. It is urged that the appointment to the post Jay with the Government and not with the Service Commission and that the Government would not have appointed him to the post in the Medical Service if it had not believed that the appellant possessed the necessary qualifications which. in his case, would be a degree of M.B., B.S., and that such a belief was entertained by the Government on account of the deception practised by the appellant in misrepresenting in his applicatinon that he held such a degree. On the other hand, it is contended for the appellant that the delivery of 'property' is to be by the person deceived, in view of the language. of s. 415 l.P.C., and that the person deceived, if any, was the Service Commission and not the Government, the application containing the misreprcsentatio:1 having been made to the Service Commission and not to the

Government.

We accept the contention for the respondent. The appointments to the Medical Services are made by Government.

The Service Commission simply selected the candidates and recommends their names to Government for appointment.

This is clear from letter Exhibit P. 47 from the Secretary to the Service Commission to the Surgeon-General with the Govern111ent of Madras. The letter refers to the enclosing

Kan1unukkafa J(ri8hna Murthy

Sia/I' of And'hrtJ

Pradesh

of a list containing the names arid other particulars of the candidates who were successful at the examination, their names being arranged in order of merit. It refers to the relaxing of a certain rule in view of the paucity of candidates and states that they may be appointed, if necessary, pending receipt of the certificate of physical fitness and a further communication from the commission.

Ragliubar Da.'Juf, J.

This is also clear from the provisions of the Government of India Act, 1935. Section 241 provided that appointments in connection with the affairs of a Province will be made by the Governor of the Province. Sub-s. ii) of s. 266 makes it a duty of the Provincial Public Service Commission to conduct examinations for appointments to the services of a Province.

Clause (a) of sub-s. (3) provides that the Provincial Public ~r vice Commission shall be consulted on all matters relating to methods of recruitment to civil services and for civil posts and

cl. (bl provides that it shall be consulted on the principles to be followed in making appointments to civil services and posts and on the suitability of candidates for such appointments. The Public Service Commission is constituted in pursuance of the provisions of s. 264. It is thus a statutory body and indpen dent of the Government. This aspect of a Public Service Commission was emphasized in State of U.P. v. Manbodhan Lal Srimstava(') when considering the corresponding provisions of

art. 320 of the Constitution. This Court said:

"Once. relevant regulations have been made, they are meant to be followed in letter and in spirit and it goes without saying that consultation with the Commission on all disciplinary matters affecting a public servant has been specifically provided tor. in order, first, to give an assurance to the Services that a wholly independent body, not directly concerned with the making of orders adversely affecting public servants, has considered the action proposed to be taken against a particular public servant, with an open mind; and. secondly, to afford the Government unbiassed advice and opinion on matters vitally affecting the morale o[ public services".

It is in view of these provisions that the Public Service Commission invites applications for appointment to the various posts under the Government and subsequently makes a selection out of the candidates for appointment to those posts. The selection may be after holding a written examination or after interviewing candidates or after doing both. Names of the cnndidates selected are arranged in order of merit and forwarded to the Government. The Government is expected, as a rule.

I') [1958] S.C.R. 533, 543.

Kanumttkkala Kriskoo Murthy

Blale of Andkm

P, aiJ.,..h

to make appointments to the posts from out of the list, in the same order. It has, however, diocretion not to appoint any part of the persons so selected and securing a place in the order of merit which would have ordinarily led to his appointment.

Any representation made in an application for appointllagh,, bar Dayal, J. ment is really a representation made to the Government. !he appointing authority, and not only to the Public Service Commission to which the application is presented and which has to deal with that application in the first instance, up to the >tage of selection. The object of the applicant was to secure an appointment and not merely to deceive the Public Service Commission and sit at the examination or to appear at the inter•:iew.

The deception was practised for that purpose and therefore there seems to be no good reason for holding that the deception came to an end once the Service Commission was deceived and had taken action on it as a result of the deception. A false representation in an application to the Service Commission continues and persists to be so till the application is considered by the final authority responsible for making the appointments and must therefore be deemed to be made to that final , rnthority as well. In the instant case, when the recommendation of the Service Commission was sent to the Government, the qualifications of the recommended candidates, including the fact that the appellant had passed the M.B., B.S. examination were mentioned. The Government therefore believed that the appellant possessed the degree of M.B., B.S., that as the Service Commission had scrutinized the application in that regard and had satisfied itself that the appellant possessed that degree. The consequence of that is that the Government were led to believe that fact, which thus became a false representation.

We are therefore of opinion that the appellant's misrepresentation to the Service Commission continued and persisted till the final stage of the Government passing an order of ap pointment and that therefore the Government itself was deceived by the misrepresentation he had made in his applicacation presented to the Service Commission.

The fact that the Service Commission is an independent statutory authority has no relevant bearing on this question. lt is a statutory body as it is constituted under he provisions of a statutes. It is independent of the Government in the sense that in its selection of candidates or in its tendering advice to the Government it does not take any hint or instructions or duu from the Government. lt brings to bear its own independent mind to judge the comparative merit~ of the candidates and their suitability to the posts they apply for. Its function is to advise the Government on the suitability of the candidates. It is therefore a statutory adviser to Government in the matter of appointment to the Services. Deception of such an adviser is

deception of the Government which is expected to pay heed to its advice and act accordingly.

There have been cases in which servants or agents of an authority have been deceived while the loss has been surtered by the authority concerned. In such cases, the person deceil(ing the servants or agents has been held to have deceived th~ authority concerned, though no direct question was raised about the deception being made not to the authority but to i; s servant. The principle of the cases, to our mind, fully applies to the case of candidates deceiving the Public Service Commission and thereby deceiving the Government in believing llmt they satisfied the various conditions prescribed for candidates for those appointments. We may refer to some such cases.

In the Crow" v. Gunput(') the accused who had produced a railway pass with an altered number before lhc ticket co\kctor when travelling by a train, was held to have thereby t11shoncstly induced the railway company to do or omit to do what they otherwise would not have done or omitted by the production of the altered pass. The deception of the t1claet coilector was considered to be deception of the railway wrapany.

In P. E. Billinghurst v. fl. P. Blackburn(') certain bills were presented by a company for payment. They were cheked by Government officials who were deceived by certain representations made by subordinate officials through whom the

1 bills had passed, and consequently payments were _made in

satisfaction of the demands under the bills. The persons concerned in causing the deception were convicted of cheating ihe Government.

In Legal Remembrancer v. Manmatha Bhusan Clw!ter; te and Legal Remembrancer v. Hridoy Narain(-') it was held that if the evidence showed that responsible officers of the East Indian Railway Company and its Asansol Office were dcce; ved and induced either to allot wagons to a certain colliery which would not otherwise have been allotted or to make out wagon chalans for the colliery which would not otherwise have been made, it was sufficient lo support the allegations in the charges that the railway company was, by reason of deceipt, induced to act in a certain way. The deception of the responsible officers was thus taken to be the deception of the railway company, the possible damage to whose reputation was remote.

In Emperor v. Fazal Din(') it was held that the deception practised was likely to cause damage or harm to the person on

!') 1868 Punj. Rec. Col. Case No. 6.

(') 27 C.W.N. 82:. (') I.L.R. 51 Cal. 250 (') 1906 4 Cr!. L.J. 355.

0P(D)ISCI-l4

Kanumukkala Krisluia Murthy

State of Andhra

Pradeek

Raghubar Dayal,, J.

1964 whom it was practised or to the railway authorities whose Kanumukka'a agent he was in the matter of appointments.

Kriahna Murthy

y, In Queen-Empress v. Appasami(') the act of the accused Stale of Andkra . b . . b Pradesh m o tammg, y personation, a hall ticket from the Supcrinten-

- 1 J dent at a University Examination and in signing the name.of Raghubar Daya, • th h · h Id d' ano er person on t e exammat10n papers was e to m 1cate an intention on his part to lead the University authorities to believe that the examination papers were answered by the other person. This again is on the principle that the deception of the Superintendent who was working for the University was a deception of the University itself.

Similarly, in Ashwini Kumar Gupta v. Emperor(') the accused personated another person at a University examination cheating the Registrar. It was held that this not only damaged the reputation of the Registrar, but also that of the University. Reference may also be made to the case reported as In re: Hampshire Land Company(') in which a Society had lent money to a company on the borrowing of the directors of thift company who were not competent to borrow, the resolution conferring on them the power of borrowing being invalid for certain reasons. It was held that the Society had a right to assume, in a case like that, that all the essentials of imernal management had been carried out by the borrowing compariy.

On the same principle it can be said that the Government of the State' had a right to assume that the Service Commission had verified that the candidates selected by it for appoi!1tment by the Government possessed the necessary qualifications and in that view the scrutiny by the Service Commission can be said to be on behalf of the Government.

The Government appointed the appellant to a post in its Medical Service on being induced by deception that he was fully qualified for the appointment. Jn consequence of the appoihtment, Government had to pay him the salaries which fell due.

It is clear therefore that the appellant, by deceiving the Government, dishonestly induced it to deliver property to him and thus committed the offence of cheating under s. 415 I.P.C. as he pretended to be Kaza Krishnamurthy which he was not. The offence really committed by him was 'cheating' by personation, punishable under s. 419 l.P.C. The conviction of the appellant for this offence is therefore correct. We accordingly dismiss his appeal and order that he will surrender to his bail and serve out the sentence.

Appeal dismissed.

(') I.L.R. 12 Mad. 151. '') I.L.R. 1937 (]) Cal. 71. (') 1896 (2) Ch. 74~ ..

• 11

KANUMUKKALA KRISHNA MURTHY

STATE OF ANDHRA PRADESH

K. SOBBA RAO

K. C. DAS GUPTA

RAGHUBAR DAYAL, JJ

Indian Penal Code, 1860

ss. 415, 419

Madras Public Service Commission

s. 419

Indian Penal Code

s. 415

Indian Penal Code

A. S. R. Chari

G.D. Gupta

S. Balakrishnan

R. K. Garg

S. C. Agarwa

D. P. Singh

M. K. Ramamurthi

S. G. Patwardhan

B. R. G. K. Achar

Raghubar Dayal

December 31, 1947

Madras Medical Registration Act, 1914

Public Service Commission

Kaza Krishnamurthy

Krishna district

K. R. Rao

Bezwada

Andhra Medical College, Vizagapatam

Andhra University

s. 419

I.P.C

s. 420

s. 465

I.P.C

s. 465

s. 420

I.P.C

s. 419

I.P.C

State of Andhra

Rayhubar Dayal

ala Kriahna Murlhy

s. 419

llagkobar Dayal

Section 415

I.P.C

s. 415

Raghubar Dayal

s. 415

I.P.C

s. 415

I.P.C

Government of Madras

Madras Medical Service

Kan11muHalG KrnAna .Murthy

Andhra

Boghbar Dago I

s. 415

Madras

Ragliubar Da.

Section 241

s. 266

Provincial Public Service Commission

s. 264

art. 320

Kanumttkkala Kriskoo Murthy

Dayal

East Indian Railway Company

Kanumukkala Krisluia Murthy

State of Andhra

Kriahna Murthy

Raghubar Daya

b Pradesh m o tammg, y personation, a hall ticket from the Supcrinten-
1 J dent at a University Examination and in signing the name.of Raghubar Daya, • th h · h Id d' ano er person on t e exammat10n papers was e to m 1cate an intention on his part to lead the University authorities to believe that the examination papers were answered by the other person.

Hampshire Land Company

s. 415

I.P.C

s. 419


7S.C.R.

SUPREME COURT REPORTS 419

MD. QASIM LARRY, FACTORY MANAGER, SASA-

MUSA SUGAR WORKS

MUHAMMAD SAMSUDDIN AND ANOTHER

[P. B. GAJENDRAGADKAR, C.J., K.N. WANCHOO AND K.C. DAS

GUPTA, JJ].

Wages-Industrial Dispute-Wages fixed by the Award-If wages as defined by the Act-Payment of Wages Act, 1936 (IV

Of 1936), SS. 2(vi), 15.

In pursuance of an award made by an Industrial Tribunal fixing the pay of the employees at Rs. 2/2/- per day, the management of the appellant had entered into an agreement with its workmen, that the effect would be given to the wage structure prescribed by the said award. In spite of the award and the agreement, the appellant paid its employees only As. -/10/- per day and that led to the present claim made by the respondents under s. 15 of the Payment of Wages Act. They asked for an order from the payment of wages authority directing the appellant to pay the said prescribed wages. Against the respondent's claim it was urged by the appellant that s. 15 of the Act was inapplicable, because the rates of wages fixed by the award did not fall within the definition of wages prescribed by s. 2(vi) of the Act. The authority rejected the appellant's contention. The appellant then challenged the correctness of the conclusion of the authority before the High Court under Art. 226 of the Constitution. The High Court dismissed the writ petition and affirmed the finding of the authority. It held that s. 15 was applicable to the case, because the wages prescribed by the award did amount to wages as defined by s. 2(vi) of the Act. On appeal by Special Leave the appellant contended that before it is held that the wages prescribed by the award fall under s. 2(vi), it must be shown that they constitute part of the terms of the contract of employment, either express of implied.

Held: The argument is not well-founded. When an award is made and it prescribes a new wage structure, in law the old contractual wage structure becomes inoperative and its place is taken by the wage structure prescribed by the award.

In a sense, the latter wage structure must be deemed to be the contract between the parties, because that, in substance, is the effect of industrial adjudication. The true legal position is that when industrial disputes are decided by industrial adjudication and awards are made. the said awards supplant contractual terms in respect of matters covered by them and are substituted by them. That being so, it is difficuit to hold that the wages prescribed by the award cannot be treated as wages under s. 2(vi) of the Act before it was amended. The amendment has merely clarified what was included in the unamended definition itself.

South Indian Bank Ltd. v. A. R. Chacko, A.LR. 1964 S.C. 1522, referred to.

Jogindra Nath Chatter.iee and Sons, v. Chandreswar Singh, A.LR., 1951 Cal. 29, inapplicable.

Modern Mlls Ltd. v. V. R. M:anga!vedhikar, A.LR., 1950 Born. 342 and V. B. Godse, Manager, Prabha Mills Ltd. v. R. M.

N airk [1953] 1 L.L.J. 577, approved.

L/P{D)JSCI-14(a)

March 24

Md. Qa.oim La"y,

Fadmy Manager,

Saaamuaa Sugar Work<

Muhammad Samauddin and

An<>IMr

.w~;:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 251 of

1963. Appeal by special leave from the judgment and order dated March 20, 1957, of the Patna High Court in Civil Revision No. 40 of 1956.

M. C. Setalvad, and R. C. Prasad, for the appellants.

The respondent did not appear.

March 24, 1964. The Judgment of the Court was delivered by

GAJENDRAGADKAR, C. J.-The short question which arises Gaj<nlragadm, c.J.ifi this appeal is whether the term "wages" as defined by section 2(vi) of the Paymf'nt of Wages Act, 1936 (No. 4 of 1936) (hereinafter called 'the Act') includes wages fixed by an award in an industrial dispute between the employer and his employees. This question has to be answered in the light of the definition prescribed bys. 2(vi) before it was amended in 1958.

The subsequent amendment expressly provides by s. 2(vi) (a) that any remuneration payable under any award or settlement between the parties or order of a Court, would be included in the main definition under s. 2(vi). The point which we have to decide in the present appeal is whether the remuneration payable under an award was not already included in the definition of wages before the said definition was amended.

It is common ground that between the appellant, Sasamusa Sugar Works Ltd., and its workmen, the respondents, an award had been made by an Industrial Tribunal

fixing the pay of the employees at Rs. 2/2/- per day, and in pursuance of the said award, the management of the appellant had entered into an agreement with the respondents that effect would be given to the wage structure, prescribed by the said award. This agreement was subsequently published in the Bihar Gazette as a part of the award. In spite of the award and the agreement. the appellant paid its employees cmly As. -/ I 0 /- per day and that led to the present claim made by the respndents under s. 15 of the Act. The respondents contended before the payment of wages authority that the refusal of the appellant to pay to them wages at the rate awarded. in substance, amounted to an illegal deduction from their wages and on that basis, they asked for an order from the authority directing the appellant to pay to the respondents the said prescribed wages.

The appellant raised two pleas against the respondents' claim. It urged thats. 15 of the Act was inapplicable, because the rates of wages fixed by the award did not fall within the definition of wages prescribed by s. 2(vi) and it also argued that the claim of the respondents was barred by limitation.

The authority has found that s. 2(vi) includes wages prescribed 1964 by the Industrial Tribunal, and so, it has rejected the appel- Md. Qcuim LMry !ants' contention that the applications made by the respon- Fad-Ory MMlafl.;, dents were incompetent under s. 15 of the Act. In regard to /aaam;-a lea the question of limitation, the authority did not decide the ugar v.

0 ' said question as a preliminary question, because it held, and, Muhammad · · ht! th · d t" f f t Sa11111uddin and m our op1mon, ng y, at 11 was a m1xe ques ion o ac Another and law, and so, it had to be tried after recording evidence.

Gajemlraga<lkar, The appellant challenged the correctness of the conclu-

O.J. sion of the authority that the applications made by the respondents were competent under s. 15 of the Act before the Patna High Court by filing a petition under Art. 226 of the Constitution. The High Court has affirmed the finding of the authority and held that s. 15 was applicable to the case, because the wages prescribed by the award did amount to wages as defined by s. 2(vi) of the Act. On that view, the writ petition filed by the appellant was dismissed. It is this order which the appellant seeks to challenge before us by its present appeal by special leave.

Section 2(vi) as it stood at the relevant time, provides. inter alia, that wages means all remuneration. capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled. be payable. Mr. Setalvad for the appellant contends that before it is held that the wages prescribed by the award fall under s. 2(vi), it must be .shown that they constitute part of the terms of the contract of employment, either express or implied. The terms in question need not be express and can be implied; but they must be terms which arise out of the contract of employment, and since an award made by an Industrial Tribum:I cannot be said to amount to a contract of employment. the wage structure prescribed by the award cannot fall within the definition prescribed by s. 2<vi). That, in brief. is the ; ubstance of the argument raised by the appellant.

We are not inclined to hold that even under the unamended definition of wages, rates of remuneration prescribed

y an award cold not be included. Jn dealing with the ques t1on of construmg the unamended definition of the term "wages", it is essential to bear in mind the scope and character of he powers. conferred on Tndu; trial Tribunals when they deal with mdustnal disputes under the provisions of the Industrial Disputes Act. It is now well-settled that unlike ordinary civil courts which are bound by the terms of contract between

he parties when the)'. deal with disputes arising between them m respect of the said terms, Industrial adjudication is not bound to uphold the ~1'1!1s of contract between the employer

ad the_ em.ployees. If 1t 1s shown to the satisfaction of Industrial ad1ud1cation that the terms of contract of employment,

1964 for instance, need to be revised in the interests of social justice, MtJ Qaaim J; any it is at liberty to consider the matter, take into account all

F~ Manage;., relevant factors and if a change or revision of the terms aps....,..... pears to be justified, it can, and often enough it does, radically Sugar orl:a change the terms of the contract of employment. The develop- Mu/atJmniad ment of industrial law during the last decade bears testimony Snd to the fact that on references made under s. lO(i) of the Industrial Disputes Act, terms of employment have constantly GajendragadhM, been examined by industrial adjudication and wherever it

O.J. appeared appropriate to make changes in them, they have been made in accordance with the well-recognised principles of fair play and justice to both the parties. Therefore the basic assumption made by Mr. Setalvad in contending that s. 2(vi) cannot take in the wages prescribed by the award, is not wellfounded. When an award is made and it prescribes a new wage structure, in law the old contractual wage structure becomes inoperative and its place is taken by the wage structure prescribed by the award. In a sense, the latter wage structure must be deemed to be a contract between the parties. because that, in substance, is the effect of industrial adjudication. The true legal position is that when industrial disputes are decided by industrial adjudication and awards are made, the said awards supplant contractual terms in respect of matters covered by them and are substituted for them. That being so, it is difficult to accede to the argument that the •vages prescribed by the award cannot be treated as wages under s. 2(vi) of the Act before it was amended. The amendment has merely clarified what, in our opinion, was included in the unamended definition itself.

In this connection, we may incidentally refer to the decision of this Court in the South Indian Bank Ltd. v. A. R.

Chacko('), where it has been observed by this Court that the very purpose for which industrial adjudication has been given the peculiar authority and right of making new contracts between employers and workmen makes it reasonable to think that even though the period of operation of the award and the period for which it remains binding on the parties may elapse -in respect of both of which special provisions have been made under sections 23 and 29 respectively-the 1:ew contract would continue to govern the relations between the parties till it is replaced by another contract This observation clearly and emphatically bring out that the terms prescribed by an award, in law, and in substance, constitute a fresh contract between the parties.

This question appears to have been considered by the Bombay and the Calcutta High Courts. In Jogerulra Nath

(') A.LR. 1964 S.C. 1522.

{:hatierjee and Sons v. Chandreswar Singh('), the Calcutta 1964 High Court appears to have taken the view which supports Md. Qaaim Lartr.

Mr. Setalvad's argument, whereas in the Modern Mills Ltd. v. 1'""""1/ M•ll<IO'•.

V. R. Manga/vedhkar('), and in V. B. Godse, Manager, Prabha 8~;:,"if.':, t, Mills Ltd., v. R. M. Naick, Inspector, under the Payment of •· Wages Act('), the Bombay High Court has interpreted s. 2(vi) s!':!::l:ii:."!.i to include wages directed to be paid by industrial adjudication.

Another In our opiriion, the Bombay view correctly represents the true legal position iri the matter.

Gajendragadhr,

0.J.

The result is, the appeal fails and is dismissed. The matter will now go back to the authority under the Act for disposal in accordance with law. There would be no order as to costs.

(') A.I.R. 1951 Cal. 29.

Appeal dismissed

(') Al.R. 1930 Born. 342.

(') (1953] I L.L.J. 577.

MD. QASIM LARRY, FACTORY MANAGER, SASA MUSA SUGAR WORKS

MUHAMMAD SAMSUDDIN AND ANOTHER

P. B. GAJENDRAGADKAR, C.J.

K.N. WANCHOO

GUPTA, JJ

Payment of Wages Act, 1936

SS. 2(vi), 15

s. 15

Payment of Wages Act

s. 15

s. 2(vi)

Art. 226

s. 15

s. 2(vi)

s. 2(vi)

s. 2(vi)

Qa.oim La"y

M. C. Setalvad

R. C. Prasad

GAJENDRAGADKAR

Gaj

nlragadm

section 2(vi)

Wages Act, 1936

s. 2(vi)

s. 2(vi)

Sasamusa Sugar Works Ltd.

s. 15

s. 2(vi)

s. 2(vi)

s. 15

Gajemlraga

s. 15

Patna High Court

Art. 226

s. 15

s. 2(vi)

Section 2(vi)

Setalvad

s. 2(vi)

s. 2

Industrial Disputes Act

s. 2(vi)

s. 2(vi)

sections 23 and 29

Bombay and the Calcutta High Courts

Md. Qaaim Lartr

Bombay High Court

s. 2(vi)

Gajendragadhr


March.24

SUPREME COURT REPORTS

G. M. TALANG AND OTHERS

SHAW WALLACE AND CO. AND ANR

[1964]

[P. B. GAJENDRAGADKAR, C. J., K. N. WANCHOO AND K. C. DAS

GUPTA, JJ.]

Industrial Dispute-Age of Retirement_.:.Trend in Bombay Region-Conclusion in earlier decision recorded by Supreme

Court-Enquiry as to accuracy thereaf-lndustri.al Tribunal- Propriety.

Shortly after the extension of the age of retirement from 55 to 58 subject to the employee passing a medical examination at 55 in the respondent-company's Head Office at Calcutta, their workmen at Bombay branch raised an industrial dispute claiming the extension of their age of retirement from 55 to 60. The dispute was referred to the Industrial Tribunal. The company resisted the claim but was agreeable to introduce similar provisions as introduced at Calcutta. The difficulty in accepting the company's case was the conclusion recorded by the Supreme

Court in its earlier decisions that the trend in Bombay region was to fix the age at 60. So the Tribunal considered it to be its duty to enquire whether the conclusion recorded by the Supreme Court was accurate and ultimately persuaded itself to hold that no such trend was established in fact, and directed that the age of retirement should be 58.

Held: (i) After careful consideration of all the materials placed on this record. there was nothing to justify any doubt about the correctness of what was said on the earlier occasion by this Court. The approach adopted by the Tribunal in dealing with this aspect of the problem is not very commendable and its present conclusion that what was said by itself on an earlier occasion and was confirmed by this Court in appeal, was in fact inaccurate, is on the whole unsound.

What. the Tribunal has failed to notice is that instances which , may justify a revision of the judicial opinion expressed on an earlier occasion about a particular trend must be strong and unambiguous and they must speak for the period both before and more particularly after the previous finding had been recorded in the mat1:€r.

(ii) The information furnished by the several documents on this record clearly show a consistent trend in the Bombay region to fix the retirement age of clerical and subordinate staff at 60.

Imperial Chemical Industries (India) Private Ltd. v. Their Workmen, [1961] 2 S.C.R. 349 and Dunlop Rubber Co. Ltd. v.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 513 of 1963. Appeal by special leave frornthe Award dated December 1961 of the Maharashtra Industrial Tribunal in Reference (l.T.) No. 48 of 1961.

S. V. Gupte, Additional Solicitor-Genera/, c: L. Dudhia, K. T. Sule, Atiqur Rahman and K. L. Hathi, for the appel~ I ants.

M. C. Setalvad, N. V. Phadke, J. B. Dadachanji, 0. C. 1964 Mathur and Ravinder Narain, for the respondent No. 1.

G.M. Talang and

Ora.

March 24, 1964. The Judgment of the Court was deli-shaw wal'k...and vered by Co. and .dnr.

DAS GUPTA, J.-This appeal arises out of an industrial -dispute as regards the age of retirement. The first respondent, Shaw Wallace & Co., was incorporated in January, 1946 as a Private Limited Company to take over the business of the partnership firm of the Shaw Wallace & Co., which had been doing business in India for about 60 years. In July, 1947 the Private Limited Company was converted into a Public Limited

Company. The Head Office of the Company is at Calcutta.

It has Branches in Bombay, Delhi and _\1adras. The general practice of the Company both at the Head Office and the Branch Offices appears to have been to retire its employees at the age of 55 though in certain cases the Company in its discretion permitted an employee to continue beyond that age.

In September, 1959 an agreement was entered into between the Company and its employees at Calcutta under which the age of retirement was extended to 58 years subject to the employees passing a medical examination on reaching the age of 55. Shortly after this the Company's employees at Bombay raised a dispute regarding their retirement age. They claimed , that no workman should be retired from se1vicc before he bad completed 60 years of age. This dispute was ultimately referred to the Industrial Tribunal, Maharashtra. Before the Tribunal the Company resisted the workmen's claim but submitted that it was agreeable to introduce for its Bombay employees provisions similar to those which had been introduced by agreement for the Calcutta employees-retirement at the age of 58 sub ject to the employee passing a medical aamination on reac\1ing the age of 55.

The Tribunal has directed that the age of retirement should be 58 but the Company may in its discretion and with the express or implied consent of the employee concerned continue an employee after he attains !hat age. It is aaainst this decision that the present appeal has been filed by the workmen.

As has already been noticed there is no dispute that the age of compulsory retirement should not remain at 55. The dispute is whether it should be fixed at 58 or at 60. It is interesting to refer in this connection to the information that has been collected by the Pay Commission 0957-59) as regards the pensionable ages prescribed under the Pension Insurance Schemes for employees generally or for industrial

Das Gupta, J.

O.M. Talang and

Ors.

v. 8"""' W aUau and

Oo.and.Anr.

Das Gupta, J.

employees and under social assistance or universal schemes in forty-eight countries in 1954. According to this the pensionable age is 70 in two countries; 67 in another two; 65 in twenty-four, 60 in seventeen, 55 in two and 50 in one. Thus. out of 48 countries for which information was available it was found that in 45 countries the pensionable age was fixed at 60 or more. As the Pay Commission Report pointed out:--

"This is particularly remarkable, considering that the countries differ widely in demographic constitution, levels of economic development, and climatic and social condition; and it indicates a virtual unanimity of competent opinion that balancing the various factors-physiological, economic and social -that are relevant, the normal working life should continue up to the age of 60. and may well go on up to 65 years.

It is undoubtedly more useful, however, and indeed essential for our present purpose to examine the trends in this matter in our own country and specially in the region in which the present dispute has arisen. In the delicate task of adjusting needs of the employees to the interests of the employers and what is even more important to the general interests of the country at large, industrial adjudication has to pay special attention to the prevailing practice in the indu:; trial region concerned. If in any particular region employee:> have been successful in their claim for fixing the age of retirement at 60 this very success is bound to raise in others in the region similar expectations. Refusal of similar relief to them is likely to create discontent. It is. the endeavour of industrial adjudication to prevent this. That is why on questions of age of retirement and hours of work and other similar matters industrial tribunals attach much weight to what has been done in other industrial concerns in the neighbourhood in recent timeswhether by agreement or by adjudication.

In support of their demand for fixing the age of retirement at 60 the workmen tried to show that in recent yea" at least the tendency in comparable concerns in Bombay region has been to fix the retirement age at 60. The Chart which is marked Ex. U-5 mentions 50 concerns in which the age of retirement is 60. In several of these this age had been fixed as far back as 1950 while in the rest the age was fixed in later years, that is, between 1952 and 1961. The workmen claim that these showed clearly a tendency in the Bombay region to fix the age of retirement in comparable concerns at

60. Special emphasis was naturally placed on some decisions of this Court which contained pronouncements as regards the existence of such a trend. In Imperial Chemical Industries

(India) Private Ltd., v. The Workmen(') where the Tribunal had raised the age of retirement from 55 to 58 and both parties G. M. TaUi"'l ""4

appealed, this Court pointed out that one of the documents Or•. on the record "would conclusively show that in Bombay the Shaw w.u;... tllfll age of retirement is almost invariably fixed at 60 and not at Oo. awl Aw. 55". In an earlier decision of this Court in Du11/op Rubber Co.

Ltd., v. Workmen(') it had been urged that the employer was na. GwflG, J. an All India concern and that changing the terms and conditions of service in regard to the age of retirement in one place might unsettle the uniformity and might have serious repercussions in other branches. The Court pointed out that though this was a relevant consideration its effect had to be judged in the light of other material and relevant circumstances, and that one of the important material considerations in this connection would be that the age of retirement can be and often is determined on industry-cum-region basis. The Court then took into account the fact that the Tribunal had found that in all the awards in recent times in various concerns in Bombay region the trend had been to fix the age of retirement at 60 years. It was mainly in view of this finding of the Tribunal that this Court refused to disturb the award fixing the age of ff tirement at 60 years. It is important to notice that the correctness of the Tribunal's finding that in all the awards in recent times in the Bombay region the trend had been to fix the retirement age at 60 years, was not challenged before this Court .

In the present case an attempt appears to have been made on behalf of the respondent Company to show that it was not correct to say that the trend in Bombay region had been to fix the age of retirement at 60. Reliance was placed for this purpose on the Chart Ex. Cl. It appears that the respondent company wrote to the Bombay Chamber of Commerce to ascertain from its memberncerns as regards the age of retirement observed by them and the information received from some of them was incorporated in this Chart. The workmen objected to this being received in evidence on the ground that the original letters had riot been brought on the record.

It is not however seriously disputed that the Chart correctly reproduces the information as regards the age of retirement given by the various concerns named there. We think therefore that the objection was rightly rejected by the Tribunal. This Chart shows the age of retirement for 75 concerns.· In most of the' cases the age of retirement is shown as 55 and in:. a few at 58. At fiPSt sight therefore:. it appears to afford impressive

(') [1961) 2 S.C.R. 349.

(') [1960) 2 S.C.R. 51.

1964 testimony against the workmen's case that the recent trend _, in Bombay has been to fix the age of retirement at 60. But on G. M. Tala1'(J"""

Ora. a closer examination it is clear that this document is of little Slia wiJi and assistance for finding out the recent trend. There is no indica-

Oo~ and A°:.;. ti on at all as to how long ago the age of retirement in these concerns was fixed at 55 or at 58. The Statement filed by the Da. G•pl•, J. workmen to explain this Chart shows tliat in two of these cases, viz., Ingerzoll Band and Northern Assurance Co., the demand for fixing the age of retirement at 60 years is under negotiation. Exhibit U-6 also shows that in 25 of these concerns the clerical and subordinate staff were nl't organised into trade unions. There is thus good ground for thinking that the reason why these concerns have kept the age of retirement at 55 or 58 are special to them and do not show any recent trend in the matter. In spite of these infirmities this document, Ex.

Cl, appears to have impressed the Tribunal. The main difficulty in accepting the Company's case on Lhis point, viz., the pronouncements of this Court, however, remained. So, the Tribunal considered it to be its duty to enquire whether the conclusion recorded by this Court in some of its earlier decisions as to the relevant trend in the Bombay region was accurate. Having embatked on this enquiry, the Tribunal appears to have taken considerable pains to perform this duty and it has ultimately persuaded itself to hold that no such trend is established in fact. We ought to add in this connection, that the approach adopted by the Tribunal in dealing with this aspect of the problem is not very commendable, and that its present conclusion that what was said by itself on an earlier occasion and was confirmed by this Court in appeal, was in fact inaccurate, is on the whole unsound.

If this Court had erred in making those pronouncements we would be the first to admit such mistakes and to correct the error. After careful consideration of all the materials placed on this record, we have, however, found nothing to justify any doubt about the correctness Jf what was said on the earlier occasion. On the contrary, the awards and agreements on the question of age of retirement about which information is furnished by the several documents on this record clearly show a consistent trend in the Bombay region to fix the retirement age of clerical and subordinate staff at 60. The very few departures from this practice which the Tribunal has mentioned are, in our opinion, wholly insufficient to indicate any slowing down of this trend. What the Tribunal has failed to notice is that instances which may justify a revision of the judicial opinion expressed on an earlier occasion about a particular trend must be strong and unambiguous and they must speak for the period both before and more particularly after the previous finding had been recorded in the matter.

Notice has also to be taken in this connection of the 1964 Report of the Norms Committee in which the following a. M. Tata.g owl opinion was expressed : - Ors. "After taking into consideration the views of the earlier /Jllaw w.Ti;... awl

Committees and Commissions including those of Oo. and Anr. the Second Pay Commission the report of which D G pl q has been released recently, we feel that the retire- "' u •, meat age for workmen in all industries should be fixed at 60. Accordingly, the norm for retirement age is fixed at 60".

This considered opinion of a Committee on which bo!h employers and employees were represented emphasised the fact that in the Bombay region at least there is a general agreement that the age of retirement should be fixed at 60. The Tribunal has referred to these observations, but has brushed them aside in a way for which we find no justification.

On a consideration of all the facts and circumstances disclosed by the oral and documentary evidence on this record. we have come to the conclusion that the age of retirement of the appellant-workmen should be fixed at 60.

Accordingly, we allow the appeal with costs, and in modification of the award made by the Tribunal direct that the age of retirement for the workmen of the respondent be fixed at 60.

Appeal allowed.

M. TALANG AND OTHERS

SHAW WALLACE AND CO. AND ANR

P. B. GAJENDRAGADKAR

K. N. WANCHOO

GUPTA, JJ.

Supreme

Court-Enquiry

Calcutta

Supreme

Court

Bombay

Supreme Court

[1961] 2 S.C.R. 349

S. V. Gupte

L. Dudhia

K. T. Sule

Atiqur Rahman

K. L. Hathi

M. C. Setalvad

N. V. Phadke

B. Dadachanji

Ravinder Narain

G.M. Talang

DAS GUPTA

Shaw Wallace & Co.

India

Delhi

Industrial Tribunal, Maharashtra

Das Gupta

O.M. Talang

[1961) 2 S.C.R. 349

[1960) 2 S.C.R. 51

M. Tala1'(J

Northern Assurance Co.


Jlll"AU

SUPREME COURT REPORTS [1964)

MARA AND OTHERS

NIKKO AND OTHERS

(M. HIDAYATULLAH AND N. RAJAGOPALA AYYANGAR, JJ.]

Inheritance-Jhalli Jats of Tahsil Ludhiana-Properties Ancestral or non-Ancestral-Whether Sister excludes collaterals.

Claiming inheritance to the properties of one P-a Jhalli J at of Ludhiana TehsiL the respondents, who were P's sister and sister's son filed a suit against the appellants-P's collaterals.

The Subordinate Judge decreed the suit and an appeal to the I1istrict Judge was dismissed. They held that the lands in suit were not ancestral and that there was no evidence to show that among the Jhalli Jats of Ludhiana collaterals excluded sisters and sister's son in respect of non-ancestral property. An appeal to the High Court was also dismissed.

Held: (i) Where lands are so mixed up that the ar.cestral and non-ancestral portions cannot be separated they must be regarded as non-ancestral unless it is shown which are ancestral and which are not.

Avtar Singh v. Thakar Singh, 35 I.A 206, applied.

Land ceases to be ancestral if it comes into the hands of any owner otherwise than by descent.

Inder Singh v. Gulzara Singh, AI.R. 1951 Punj. 345, Saif-ul- Rahman v. Mohammad Ali Khan, I.L.R. 9 Lah. 95 and Jagtar Singh v. Raghbir Singh, I.L.R. 13 Lah. 165, referred to.

(ii) The application of the personal law to "the family by the courts below was correct and paragraph 24 of Rattingan's Digest which excludes sisters from inheritar.ce from non-ancestral property is too widely stated.

Ujagar Singh v. Mst. Jeo, [1959) Supp. 2 S.C.R. 781 and Waryam Singh v. Smt. Sukhi, CA No. 452/61 decided on 23-4-1963

(non-reportable) referred to.

CML APPELLATE JURISDICTION: Civil Appeal No. 490 of 1962. Appeal by special leave from the judgment and order dated October 20, 1959 of the Punjab High Court in Regular Second Appeal No. 1591 of 1959.

Kartar Singh Chawla and Harbans Singh, for the appellants.

I. M. Lal and M. R. K. Pillai, for the respondents.

March 24, 1964. The Judgment of the Court was delivered by

Ritlayatvllah, J.

HIDAYATULLAH, J.-This is a defendants' appeal by special leave against the order of the High Court of Punjab dated October 20, 1959 dismissing summarily second appeal filed by the appellants. The suit was filed by the respondents for possession of a plot, a house and a Taur and half share in certain lands as preferential heirs of one Pohla after the death

1964 of Pohla's widow Punjab Kaur on February 7, 1952. The plaintiffs are Mst. Nikko, sister of Pohla and Jarnail Singh, son of Mst. Har Kaur who was another sister of Pohla. The first appellant Mara is a collateral of 4th degree of Pohla and the other two appellants are Mara's sons. The following genealogy gives the relationship of the parties: -

Mara and Other•

Niikl:o OlMi Or1.

I Sohela

I PirBux

I Mara defendant No. 1

:MohindL Singh

defendant No2

I Major Singh

defendant No. 3

Sultani

Pohla

(son)

I Shrimati Punjab Kaur

widow

I Baghaila

I Jaimal

I Mat. Har Kaur (daughter)

I Jarna.il son of Arjan Singh

Plaintiff No.2

I Sunder died sonle88 and

wifeless

I Mat.Nikko alia.s Punjab Kaur

(daughter) wife of S&nta Singh J &t, resident of Ayali Kalan, Plaintiff No. I.

The parties are Jhalli lats of village Chomon, Tehsil and District Ludhiana. The plaintiffs claimed that the property was non-ancestral and according to the Riwaj applicable to the family, sisters excluded collaterals in respect of both ancestral and non-ancestral properties. It appears that after the death of Panjab Kaur, Mara got one of the fields mutated in his own name and thereafter took possession of the whole pro. perty. He made gifts to his sons of some of the properties a.nd that is why they were joined in the suit. Mara and his elder son Mohinder Singh filed a joint written statement in which. they raised many pleas the details whereof need not be given here. They claimed that according to the custom applicable to the family, sister and sister's sons were excluded from inheritance in respect of properties whether ancestral or nonancestral. They , however claimed that the property was ancestral and denied the genealogy. -• The Subordinate Judge, Second Class, Ludhiana framed six issues of which issues No. 2, 3 and 4 alone are important in this appeal. Those issues are: -

"2. Whether the property is ancestral qua Pohla and

Mara?" "3. Whether the question of the nature of the pro.

perty is material for the decision of this case?"

Hidayalollali. J,

.Mara and Olher1 ...

Nil:lro ond Ora.

HUlaya!u!lah, J.

"4. Whether the plaintiffs are preferential heirs to the estate of Mst Panjabo widow of Pohla?"

The parties led voluminous oral evidence in the case but the Subordinate Judge did not rely upon it We have not been referred to any portion of this evidence in tJiis appeal. The learned Subordinate Judge held that the suit lands were not ancestral and further that no evidence was produced to prove that the other properties were ancestral. On the third issue he referred to question No. 52 from the Riwaj-i-am relating to the settlements of 1882 and 1909-1910 (Exts. D-1 and D-2) in which it is stated that among the lhalli lats of Tehsil Ludhiana sisters or sisters' sons never succeed. He, however, held on the authority of Ahmad v. Mohammad and others(') that since question refers only to ancestral property and that the nature of the property was thus material. On the fourth issue he held on the strength of the answer to question No. 52 that sisters and their sons were excluded from ancestral property but as the answer was not applicable to 1:on-ancestral property the personal law would apply unless special custom was proved. He therefore placed the burden on the defendants relying .upon Harnam Singh v. Mst. Gurdev Kaur, (') Mst.

Sukhwant Kaur v. S. Balwant Singh and others(') and Mst. Jeo

v. Ujagar Singh.(') As he had alre:ldy rejected the oral evidence and there was no other proof that the property was ancestral, he decreed the suit.

On appeal the District Judge, Ludhiana remitted three issues to the trial Judge and they were as follows : -

"Issue No. 4: -

Whether there is any custom by which the parties are governed according to which the plaintiffs are entitled to succeed to the ancestral as well as non-ancestral left by the Pohla in preference to Mara defendant? "

"Issue No. 4A: -

Whether under the custom by which parties are governed the defendant Mara is a preferential heir to the plaintiffs in respect of the ancestral as well as non-ancestral property of Pohla deceased?"

(') A.I.R. 1936 Lah. 809.

(') A.I.R. 1951 Simla 242.

(') 1957 P:L.R. 609.

(') 1953 P.L.R. 1

"Issue No. 4B: - 1964

If the custom set out by the parties is not proved, whether the plaintiffs are preferential heirs to Mara .i.lefendant under personal law applicable to the parties?"

Mara and Others

On these issues the report of the Subordinate Judge, First Class, Ludhiana was against the contention of the defendants.

The learned District Judge held, in Jgreement with the Subordinate Judge, that the lands in suit were not ancestral and he held also that there was no evidence to show that among the Jhalli Jats of Ludhiana collatrals excluded sisters and sisters' sons in respect of non-ancestral property. He referred to Exts. 9, IO, 12 and 13 which were judgments in other cases a> evidencing the contrary. He accordingly dismissed the appeal. The Second appeal filed thereafter was dismissed summarily by the High Court. .

The first question to decide is whether these 13nds are ancestral or non-ancestral. The concurrent finding of the two courts below is that none of the properties in dispute is ancestral. The High Court prima facie saw no reason to differ from any of the conclusions of the courts below. It is contended on the strength of a Kafiat of Thu/la Malla prepared at the settlement of 1882 that this land came into possession of one Sekhu who was admittedly a common ancesto1 in the famil'y and the property, which is now in dispute, mut be regarded as ancestral. It is contended that the finding is vitiated because the two courts below did not read this Kafiat along with the extracts from the Records of rights of the years 1882 and 1909- . 1910 in which the names of Jaiinal and Sunder, sons of Baghela, and of Pir Bux son of Sohila are shown ~.s persons in enjoyment of half shares in these lands. It is argued that the lands in suit are thus proved to be ancestral as they belonged to Sekhu the common ancestor and the Riwaj-i-am as disclosed in question No. 52 applies to the case. It appears, however, from the Kafiat as well as the Record of Rights that these lands were once abandoned and when people came back Sekhu got possession of some lands but in addition to these Sekhu's descendants had acquired the share of one Dalpat in the Thu/la and subsequently the entire estate of another holder, namely, Maidas was purchased by Jaiinal, Sunder and Sohila. This shows that the lands in dispute are not entirely ancestral but are made up of lands which may be described as ancestral and non-ancestral.

Now, it has been ruled in the Punjab consistently that where lands are so mixed up that the ancestral and nonancestral, portions cannot he separated they must be regarded

il ikko and Ors.

IJidayatulla.k, J.

J[ara and OtMrs

Nikko and Ors.

Hidayatullah, J.

as non-ancestral, unless it is shown which are ancestral and which are not. This was laid down by the Privy Council in Avtar Singh v, Thakar Singh('). It was held by Mr. Justice Kapur (as he then was) in Indar Singh v. Gulzara Singh and others(') basing himself upon Saif-ul-Rahman v. Mohammand Ali Khan(') and Jagtar Singh v. Raghbir Singh(') that land ceases to be ancestral if it comes into the hands of an owner otherwise than by descent. Once these conclusions are reached, it is quite obvious that the decision of the District Judge not to apply the answer to question No. 52 to non-ancestral land was right. It may be mentioned that the answers to questions refer to ancestral property only and this is now firmly established. In fact, it was not denied at the hearing.

It is, however, contended that there are decisions to show that the right of the collaterals was recognised in respect of even non-ancestral land to the exclusion of sisters and their sons. No ruling from the Law Reports has been brought to our notice. Some cases from the Ambala and Amritsar Districts are cited but those obviously cannot be any authority, because, as is well-known, custom in the Punjab changes from district to district, tehsil to tehsil and pargana to pargana. It has been ruled in this Court that paragraph 24 of Rattingan's Digest which excludes sisters from inheritance from non-ancestral property is too widely stated. (See Ujagar Singh v. Mst.

Jeo(') and (Waryam Singh and Others v. Smt. Sykhi and another) (Civil Appeal No. 452 of 1961 decided on April 23, 1963).

The learned District Judge cited some instances in which the sisters and sisters' sons were allowed to succeed in preference to collaterals. One of the documents filed by the defendants in the suit (Ext. D-6) also supports the contention of the respondents. In this view of the matter it cannot be said that the Jw application of the personal law to the family by the courts below was erroneous. It is contended lastly that the rulings only show that collaterals of 5th degree are excluded and there is no case showing that a collateral of 4th degree was excluded. If personal Jaw applies, as it does, a collateral of the 4th degree is also excluded.

In our judgment this appeal must fail and is accordingly dismissed with costs.

Appeal dismissed.

(') 35 I.A. 206. (') AI.R. 1951 Pb. 345. (') I.L.R 9 Lah. 95. (') I.L.R. 13 Lah. 165. (') (1959 Supp. 2 S.C.R. 781.

MARA AND OTHERS

NIKKO AND OTHERS

M. HIDAYATULLAH

N. RAJAGOPALA AYYANGAR, JJ.

Rattingan

Punjab High Court

Kartar Singh Chawla

Harbans Singh

I. M. Lal

M. R. K. Pillai

Ritlayatvllah

HIDAYATULLAH

Pohla

Punjab Kaur

Nikko

Jarnail Singh

Har Kaur

Mara

MohindL Singh

Major Singh

Sultani

Pohla

Sunder

Chomon

Ludhiana

Panjab Kaur

Mohinder Singh

Hidayalollali

.Mara

HUlaya!u!lah,

Panjabo

District Judge, Ludhiana

Sekhu

Jaiinal

Sunder

Baghela

Pir Bux

Sohila

Dalpat

Punjab

il

ikko

IJidayatulla.k,

J[ara

Nikko

Hidayatullah

Kapur

Ambala

Amritsar

April 23, 1963


7S.C.R.

SUPREME COURT REPORTS 435

STATE OF UTIAR PRADESH v.

SABIR ALI AND ANR.

[M. HIDAYATULLAH AND N. RAJAGOPALA AYYANGAR, JJ.]

Criminal Trial- Offence under Uttar Pradesh Private Forests Act (VI of 1949}-Provision for trial of offences only by

Magistrate of the Second or Third C!ass-Tria! by First Class Magistrate-Validity of-Genera! and Special provision-Code

of Criminal Procedure, 1898 (Act 5 of 1898), ss. 28 and 29(1).

On a complaint by the District Magistrate the respondents were put on trial for an offence under s. 15(1) of the Uttar

Pr•.desh Private Forests Act, 1949. Tile charge against the first respondent was that he sold one tamarind tree to respondent No. 2 for the purpose of felling and removing it without obtaining permission from the competent authority_ and that against respondent No_ 2 was that he felled the tree and removed it.

The complaint was transferred from one Magistrate to another till it came on the file of Mr. Upadhya, a Magistrate of Second Class. After he had recorded all the evidence and examined the two , respondents, the powers of Magistrate, First Class were conferred on him. Thereafter, by his judgment the respondents were found guiJty and sentenced to pay a fine of Rs- 50/- each or to undergo simple imprisonment for one month. On appeal, which was later converted into a revision the Additional Sessions Judge made a reference to the High Court recommending that the trial before the Magistrate, First Class be quashed as he had no jurisdiction to try the offence. The reference was . heard by Mulla, J., who was of the opinion that the trial was proper but as the rulings of the same Court stood in his way, he referred the case to a larger Bench. The case was heard by a Division Bench and the learned -Judges ditfered amongst themselves. Mr. Justice Nigam was of the view that the trial was valid but Mr. Justice Singh did not agree with him. The case was then placed before Mr. Justice Verma who agreed with Mr.

Justice Singh and the conviction and sentenc~ passed on the respondents were set aside. - Acoording to the opinion of Mr. Justice Nigam which found support from the order of reference made by Mulla, J., there was nothing to prevent the -Firs1j Class Magistrate from trying an offence under s. 15(1) of the Act, because under Schedule m of the Code of Criminal Procedure the ordinary powers_ of a Magistrate, First Class include the ordinary powers of a Magistrate of the Second Class. According to the olher view, the Forests Act confers jurisdiction on Magistrates of the Seoond

and Third Class and this excludes jurisdiction of any superior Magistrate. On appeal by certificate: Held: (i) The words_ of the second sub.section of s. 15of the Act or not rendered ineffective by the prescription of the ordinary powers of the Magistrates. To call in aid Schedule m would render the provisions of s. 29 of the Code of Criminal

Procedure redundant and useless at least in thosecases where the second part of the second schedule applies. What s. 15(2) does is to prescribe a particular court and in view of. the words of s. 29(1) no other. court oan try offences under s. 15(1) even though the powers of those courts may be superior to those of

MM<lo!4

Pradesh

Sabir Al~ c{; Anr.

Hidayatulla11, J.

Magistrates of the Second and Third Class. In the Second Schedule itself, which prescribes the courts for the trial of offences under law other than the Penal Co<!e, is exciuded, the Third Schedule cannot bring about the same result indirectly. The provisions of the Third Schedule must therefore be taken to define general powers and not to create jurisdiction to try offences which the second schedule does.

(ii) The scheme of the Code read with the provisions of s. 15 of the Act clearly shows that offences under s. 15 are not triable by any Magistrate as it would be if the Second Schedule were applicable. They are therefore triable by such Magistrates as have been named in the second sub-section. There is good reason for holding thtis, because a conviction by a Magistrate of the second or the third class, as the case may be is open to an appeal whereas a conviction by a Magistrate of tne First Class and a sentence of fine of Rs. 50/- or under a fine of Rs. 200/- after a summary trial is not appealable. It is a circumstance which must be taken into account. It is forcefully illustrated in this case. An appeal would have laid against the same decision if the Magistrate had not been given the ]:)owers of a First Class Magistrate during the trial. The respondents were robbed of a right of appeal. In any event. in vi"w of the clear words of s. 29(1r, the trial of these cases onght to have been before a court designated in s. 15(2) and as the trial was before a Magistrate who was not empowered to try the offence the proceedings were rightly declared void under s. 53G(p) and of the Code of Criminal Procedure.

J addu v. State, A.LR, 1952 All.872 and Ilarbans Singh v.

State, A.LR 1953 All.179, referred to.

CRIMINAL APPELLATE JURISDICTION: CRIMINAL APPEAL No. 193 of 1962. Appeal from the judgment and order dated March 12, 1962 of the Allahabad High Court (Lucknow Bench) at Lucknow in Criminal Reference No. 21 of 1961.

0. P. Rana, Atiqur-Rehman and C. P. Lal, for the appellant.

The respondent did not appear.

March 24, 1964. The Judgment of the Court was delivered by. ·

HIDAYATULLAH, J.-This is an appeal by certificate granted by the High Court of Allahabad (Lucknow Bench) against its order dated March 12, 1962 quashing the trial of the respondents for an offence under s. 15(1) of the Uttar Pradesh Private Forests Act (VI of 1949). This trial commenced on February II, 1959 on a complaint by the District Magistrate Bahraich. The charge against the first respondent was that he sold one tamarind tree to respondent No. 2 for the purpose of felling and removin_g it without obaining permission from the competent authority and that agamst -respondent No. 2 was that he felled the tree and removed it. The complaint was transferred from one Magistrate to another

till it came on the file of Mr. T. B. Upadhaya who was a Magistrate of the Second Class. After Mr. Upadhaya had re corded all the evidence and examined the two respondents the powers of Magistrate, First Class .were conferred o~ him.

Thereafter he pronounced judgment m the case and tindmg respondents guilty he sentenced them to pay a fine of Rs. 50 /. each or to undergo simple imprisonment for one month. The respondents filed an appeal before the Addi tional Sessions Judge, Bahraich which was later converted into a revision. Th.e learned Additional Sessions Judge made a reference to the High Court recommending that the trial before the Magistrate, First Class be quashed as he had no jurisdiction to try the offence. This reference was heard by Mulla, J. who did not agree with the opinion of Beg, J. in Jaddu and others v. State,(') on which the Additional Sessions Judge had relied. Beg, J. had taken the same view in a subsequent case also-Harbans Singh and others v. State.(') Mulla, J. was of the opinion that the trial was proper, but as these rulings stood in his way, he made a reference of the case to a larger Bench.

The case was heard by a Division Bench consisting of B. N.

Nigam and S. D. Singh, JJ. The learned Judges differed amongst themselves: Mr. Justice Nigam was of the view that the trial was valid but Mr. Justice Singh did not agree with him. The case was then placed before Mr. Justice Verma who agreed with Mr. Justice Singh. As a result, the conviction and sentence passed on the respondents were set aside. The case was, however, certified by the High Court as fit for appeal and the present appeal has been filed.

. :-Vhic.h of the lwo views is the right one is the short question m this appeal. Section 15(2) of the Uttar Pradesh Private Forests Act confers jurisdiction to try offences under the first sub-section on Magistrates of the Second and the Third Class.

The trial i~ the present case was by a Magistrate of the First Class, and 1f there was no jurisdiction in him to try the offence then the proceedings er_e rightly declared void under s. 530(p) of. te Code of Cnmmal Procedure. According to the op1mon of Mr. Justice Nigam which finds support from the order of reference made y Mulla, J., there is nothing to prevent the First Class Magistrate from trying an offence under s. 15( _!) .of the Act, because under Schedule III of the Code of Cnmmal Procedure the ordinary powers of a Magistrate First Class include the. ordinary powers of a Magistrate of th~· Second lss .. ccordmg to the other view, the Forests Act

cofers 1unsd1cllon .on Magistrates of the Second and the

Thir~ Class and this excludes jurisdiction of any superior Magistrate.

(') A.LR. 1952 All.873. (') A.I.R. 1953 All.179.

Pradesh

Sabir Ali di Anr.

1964 fl":::JJ.""'

v. flabir .Ali do .AM

Bidayotullah, J

Section 15 of the Forests Act reads as follows:-

"15 Offences under this Chapter and trial of such offences and penalties thereof: -

(l) Any person who contravenes any of the provisions of this Chapter or deviates from the prescriptions of a sanctioned working plan without the previous sanction of the For est Officer shall be punishable with fine not exceeding one hundred rupees for the first offence and with fine not exceeding one thousand rupees or simple imprisonment not exceeding .. three months or both for the second or any subsequent offence.

(2) Offences under this section shall be triable by a Magistrate of the Second or Third Class, and proceedings under this section may be instituted on a complaint made by the landlord of the notified area or forest in respect of which the offence is alleged to have been committed or by any right-holder of such a notified area or forest or by the Forest Officer or by any officer specially empowered by the Provincial Government in this behalf .

(3)

(4)

• • • • • • • *"

The question is one of interpretation of the first part of sub-s. (2) which says that offences under s. 15 shall be triable by a Magistrate of the Second or Third Class. It does not use the phrase "any Magistrate" nor does it specify "a Magistrate of the First Class". The question is whether the words of the subsection exclude a First Class Magistrate. The answer to this, in our opinion, is furnished by ss. 28 and 29 of the Code -0f Criminal Procedure. They provide as follows:~

"28. Offences under Penal Code-Subject to the other provisions of this Code any offence under the Indian Penal Code may be tried-

(a) by the High Court, or

(b) by the Court of Session, or

(c) by any other Court by which such offence is shown in the eighth column of the second schedule to be triable''.

"29. Offences under other laws-(l) Subject to the other provisions of this Code, any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such court.

7 S.C.R.

SUPREME COURT REPOR'IS 439

(2) When no Court is mentioned, it may be tried by the High Court or subject as aforesaid by any Court constituted under this Code by which such offence is shown in the eighth column of Second Schedule to be triable".

The scheme of the Criminal Procedure Code is that it provides separately for trial of offences under the Penal Code and for offences under any other law. The court which is to try them is indicated in the Code in the eighth column of the Second Schedule. The first part deals with offences under the Penal Code and the second part with offences under any other law.

The last entry in the Second Schedule provides for the trial for offences under any other law which are punishable with imprisonment for less than one year or with fine only and they are made triable by "any Magistrate". If the matter were governed by the Second Schedule, the last entry would undoubtedly have comprehended a Magistrate, First Class. But s. 29 says that offences under any other law shall be tried by that court which that law mentions and it is only when no court is mentioned that the eighth column of the Second Schedule is applicable. Here sub-s. (2) of s. 15 mentions the courts by which offences under s. 15(1) are triable and s. 29(1) excludes the application of the seco'nd part of the Second Schedule. The words of sub-s. (I) of s. 29 are peremptory. There is no escape from them. They say that 'subject to the other provisions of the Code' any offence under any other law shall be tried by the court when such court is mentioned in that law. A case under s. 15(1) therefore, is triable only by the two courts named therein, namely, Magistrates of the Second and the Third classes and not by any other Magistrate.

The appellant relies upon the words 'subject to the other provisions of the Code' and refers to the Third Schedule. But that Schedule deals with the ordinary powers of the, Magistrates under the Criminal Procedure Code. The words of the second sub-section of s. 15 are not rendered ineffective by the prescription of the ordinary powers of the Magistrates. To call in aid Schedule III would render the provisions of s. 29 redundant and useless at least in those cases where the second part of the Second Schedule applies. What s. 15(2) does is to prescribe a particular court and in view of the words of s. 29 (I) no other court can try offences under s. 15 (!) even though the powers of those courts may be superior to those of Magistrates of the Second and the Third Class. If the Second Schedule itself, which prescribes the courts for the trial of offences under laws other than the Penal Code, is excluded, the Third Schedule cannot bring about the same result indirectly. The provisions of the Third Schedule must

Stale of Utla•

Pradesh

Sabir .Ali Anr ..

Hidayatullah, .J •.

Sla'.e of U ttar

Pradesh

v. .

Sabir~Ali & .Anr.

Hidayatullah, J.

therefore be taken to define general powers and not to create jurisdictions to try offences which the Second Schedule does.

It was argued before us that there is no point in prescribing that the Magistrates of the Second and the Third Class can try subsequent offences because their powers under s. 32 do not extend as far as the punishment prescribed bys. 15(1).

This question does not arise directly but it may be said that two views are possible: one is that by implication the powers of these Magistrates are extended beyond what is prescribed under s. 32. The other is that in a case where the Magistrate feels that a heavier punishment should be imposed he can take recourse to the provisions of s. 349 of the Code and make a recommendation to a Magistrate who can impose adequate punishment in the case. The words "subject to the other provisions of the Code" would enable this to be done.

fo our opinion. therefore, the scheme of of the Code read with the provisions of s. 15 of the Forests Act clearly show that offences under s. 15 are not triable by any Magistrate as it would be if the Second Schedule were applicabl~.

They are therefore triable by such Magistrates as have been named in the second sub-section. There is good reason for holding this, because a conviction by a Magistrate of the Second or the Third Class, as the case may be, is open to an appeal whereas a conviction by a Magistrate of the First Class and a sentence of fine of Rs. 50/- or under or a fine uf Rs. 200/- after a summary trial is not appealable. It is possible that it was intended that a right of appeal should be conferred and therefore the trial of these offences was restricted to Magistrates of the Second and the Third Class.

This was pointed out by Mr. Justice Beg in Harbans Singh and others

v. State(') and was also referred to by Mr. Justice Verma in the opinion in the present case. In our opinion, it is a circumstance which may be taken into account. It is forcefully illustrated in this case. An appeal would have lain against the same decision if the Magistrate had not been given the powers of a First Class Magistrate during the trial. The respondents were robbed of a right of appeal. Jn any event, in view of the clear words of s. 29(1), the trial of these cases ought to have been before a court designated in s. 15(2) and as the trial was before a Magistrate who was not empowered - to try the offence the proceedings were rightly declared void under s. 530(p) of the Code of Criminal Procedure. We accordingly hold that the decision under appeal was correct. The appeal fails and is dismissed.

Appeal dismissed.

('l A.LR. 1953 All. 179.

435

STATE OF UTIAR PRADESH

SABIR ALI AND ANR

M. HIDAYATULLAH

N. RAJAGOPALA AYYANGAR, JJ.

Code

ss. 28 and 29(1)

s. 15(1)

Private Forests Act, 1949

Mulla

Nigam

Singh

Verma

s. 15(1)

Code of Criminal Procedure

s. 15

s. 29

s. 15(2)

s. 29(1)

s. 15(1)

Sabir Al~

Second Schedule

Third Schedule

Third Schedule

s. 15

s. 15

Second Schedule

s. 53G(p)

Code of Criminal Procedure

P. Rana

Atiqur-Rehman

C. P. Lal

HIDAYATULLAH

High Court of Allahabad (Lucknow Bench)

s. 15(1)

Bahraich

T. B. Upadhaya

Upadhaya

Addi tional Sessions Judge, Bahraich

Beg

B. N.

Nigam

S. D. Singh

Section 15(2)

s. 530(p)

s. 15( _!)

Schedule III of the Code

Sabir Ali di Anr.

1964

Bidayotullah

Section 15

s. 15

ss. 28 and 29

Penal Code

Indian Penal Code

Second Schedule

Penal Code

Second Schedule

Penal Code

Second Schedule

Second Schedule

s. 29

Second Schedule

s. 15

s. 15(1)

s. 29(1)

Second Schedule

s. 29

s. 15(1)

Third Schedule

s. 15

Schedule III

s. 29

Second Schedule

s. 15(2)

s. 29

s. 15

Second Schedule

Penal Code

Third Schedule

Third Schedule

Sabir .Ali Anr

Hidayatullah

Sabir~Ali

Second Schedule

s. 32

s. 32

s. 349

s. 15

s. 15

Second Schedule

s. 29(1)

s. 15(2)

s. 530(p)

Code of Criminal Procedure