KAMANI METALS & ALLOYS LTD. v.

THEIR WORKMEN

January 24, 1967

(M. HIDAYATULLAH, S. M. SIKRI AND C. A. VAIDIALINGAM, JJ.]

Industrial Dispute-Criteria for revision of wages and dearnes.• a//owance-W hat ar~ comparable cone.ems-Departure from point to point odjrutment when permissible-Award-Interference by Suprem• Court in ap1>6al-RAtrospective opera1ion of award-L•galll)I of-Refertnct !D the Tribunal, with resptct to sptcial categories of empioye•s-Wl1en Trib111llll can fix new scales for all employees.

1be award of the Industrial Tribunal in an industrial dispute between Ille appellanto(lOmpany (manufacturing products of non-ferrous metals and .alloys) and its workmen, was challenged in appeal to this Court on the following grounds:- ( 1) There was no change of circumotances justifying a revision of the wages, pay scales and deameso allowance, (2) while making auch revision by it. award, many of the matters stated in the judgment of this Court in Novex Dry Cleaners v. Its Workmen, [1962] I LLJ. 271

(S.C.) were not considered by the Tribunal; (3) the Tribunal had compared dissimilar concerns and not compared similar ones; ( 4) the Tribunal took into account an irrelevant factor, namely, the yield from incentive bonus; ( 5) no case was made out for adjustment of the workmen in the new time'8cale after grantin!f them one additional Increment after every 3 years service and two add11ional increments, after 5 years' service (6) the Tribunal was in error in making the award retrospective from !st October 1962, when the reference was made to it only on 14th December 1962; (7) the Tribunal had gone beyond the reference inasmuch as the reference was in respect of special categories of monthly-rated employees by designation, whereas the Tribunal had fixed the new scales of pay aot only for those workmen but for all clerical and other workmen who were classified as Grades A, B, C, and D; and ( 8) the linking of dearness allowance, after the consumer price index 321, to wages, has made a departure froin the fixation of dearness allowance fixed in another concern, where the percentage was that of the dearness allowance and not of the basic salary.

HELD : Io. an ar, peal brought by special leave against the award, before a party can c aim redress, it must lie shown that the award was defective by reason of an exoess of jurisdiction, or of a substantial error iil applying the law or some settled principle, or of some groso and palp able error occasioning •ubstantial in1ustice. [471 A.CJ

( 1) Therewas no revision of wages or dearness allowance in the appeDant-<:0mpany during the last 20 years even though commodity prices had soared high, the general level of wages had gone up, and there had been two or three revisions already in some industries, while in some othm, Wage Boatds have been appointed IX> revise or fix wages. Therefore, the demand of the workmen for a revision was justified. [466 FH]

(2) In order to make the fair wage meet the increase in the cost of living dearness allowance is paid to make up the disparity to a certain ex.tent. When, In course of time, it is found that it is not sufficient, because of a further increase in the cost of living, a revision of wages and dearness owance becomes necessary.

This Court in its decisions has merely laid down the priru:ipal 0 guide-lines to be followed in industrial adjudica-

464 SUPllBME COUIT llBPOllTS

(1967) 2 S.C.R.

tion. rhc v;1r1ou~ ub~Cr't':lliun.i are not intended to operate wilh the A rigidity of a statutory enactment. Each case must be considered on its own tacts and only relevant circumstancec; should enter into the determi

nalion or the wage tructurc. The fu.1damen1al principles to be considered are: (•) how the wages of the worker.. concerned compare with .those pai<l. to work\!r.i of similar grade and skill hy other employers. in similar or olhcr industries in rhe region, and (b) what wages rhe establishment or industry can atfrrd to pay.

Jn the present case, taking into account the B increase in its net profits and the fact that the burden of the increosed wage bill would not be more than 1/ 10th of the net profits, the Tribunal was rigltt. in holding that the appellant had the capacity to pay the incrca<Cd wage bill. [467 B-C, H; 468 A-B, G-H; 469 A-DJ ,

( 3) The Tribunal :om pared the appellant<ompany with four enitineenng concerns. One of them belonged to the same group of industriea as the appellant. There were common awards in respect of both of them.

Further, there was an award given at the same time by the same Tribunal C in the connected concern also, the charter of demands being the same as in tile appellant-<:ompany and based on several common exhibits. SiDCe the number of industries in the region wa, small. it was open to the Tri

bunal to take into consideration the conditions existing in the engineering concerm in the region, particularly those in a concern where there is .affinity, even though the appellant-<:ompany could not be described as a :general engineering industry.

Smaller concerns. where the scale of pay is considerably lower, do not furnish a just hasis for compar:son. (470 D

A. B, D. F-OJ

Greaves Collon & Co. v. The Workmen, [ i 964J 5 S.C.R. 362, followed. ( 4) The Tribun;1) fbtcd lower waes in the rcrerence relating to lhe

onnected concern. because, a substantial sum was earned in that establishment by way of incentive bonus.

But in the case of the appellcint<om pany. finding the yielJ from incentive bonus, low, the Tribunal fixed the wages at the proper level without considering the yield from incentive bonus, that is, without being influenced by it in any way. [471 E, GH;

472 A.BJ

(5) In the present case the fixation of scales of pay has been very -..:autious, the starting wage and the annual increment were not high ... and therefore. it cannot he said that the Tribunal was in error in departing from point-to-point adjustment in granting increments bacd on the length F of service. [472 G-HJ

Observation:< in Hindus/an Times v. Their Workmen, (1964] I S.C.R. 234 at p. 249, followed.

(6) In view of the facts that the workmen demanded retrospective revision from !st July 1961, and that the matter was referred to the Conciliation Board in September 1962, the choice of !st October 1962 by the Tribu"31 cannot be characterised as either illegal or unfair. [473 Cl G

(7) The monthly-paid employees mentioned by name in the order of reference belong to one category or another in the Grades A to O. The intention was lo have a general revisio:i of the scale of p_ayment to all workers paid month!)'; otherwise, it would have been invidious far some persons in the same Grade to receive more pay than others. The Tribunal was therefore right in treating the reference as referring to all the four Grades and not reading it as restricted only to a fe"' classes. [473 F-H]

(8) There have been a number of awards in which dearness allow- H ance was fixed in the same manner as by the present award. The. award in the connected concern coJ1d not be used a.~ a precedent .. because of the special facts obtaining in that concern. [475 C, E]

KAMAN! METALS v. WORKMEN (Hidayatul/a/1, J.) 465

A Clv1L APPELLATE JuRISDICTION: Civil Appeal No. 634 of 1965.

Appeal by special leave from the Award (Part II) dated April .

23. 196-l of the Industrial Tribunal, Maharashtra, Bombay in Reference (IT) No. 271 of 1962.

B El. R. Gokhale and /. N. Shroff, for the appellant.

K. K .. Singhvi, R. S. Kulkarni, S. C. Aganmla and

D. P.

Singh, for the respondents.

The Judgment of the Court was delivered by

Hidayatullait, J. This is an appeal against the Award. Aprii 23, 1964, of the Maharashtra Industrial Tribunal, Bombay (Mr.

Meher) in reference (IT) 271 of 1962. The Award was given in a dispute between the Kamani Employees Union, Bombay and the Kamani Metals & Alloys Ltd. The Company is the appellant before us. The reference was occasioned by a demand raised by the Union on February 25, 1960 in relation to wage scales and classifications, dearness allowance, production bonus, permanency for daily-rated workmen and grades and scales of pay, dearness allowance and abolition of marriage-clause for monthly paid employees. At first a reference was made to a Conciliation Board by the Government on September 8, 1962. The conciliation was frustrated for some reasons and on December.14, 1962, the Bombay Government acting under s. IO(I)(d) of the Industrial Disputes Act, 1947 referred the dispute to the Tribunal for adjudication.

By the Award now under appeal, some points were decided in favour of the Company and some others in favour of the workmen. The workmen have not appealed and the Company. has also confined this appeal to some of the points decided against it.

We are concerned with a Company which is carrying on the business of melting and manufacturing all kinds of rolled products of non-ferrous metals and alloys, copper and copper-based alloys, such as sheets, strips, coils etc. According to the Company the process of manufacture, unlike the general engineering industry, involves only the melting of the non-ferrous metals and casting them into suitable slabs for the subsequent processes of hot and cold rolling to alter their shape, size and metallurgical properties. The product so wrought serves as a base raw material for making products such as automobiles, telephones, radios and other electrical gadgets, etc. The Company claims that it cannot be described as a general engineering industry.

The main contentions in this appeal concern the revision of wages and monthly pays and the fixing of wage scales and time scales in respect therf. respectively, and the increase in dearness allowance by adopting a new system of calculation. The Company

466 SUPIUUR OOUl.T UP<>aTI

(1967) 2 S.C.R.

also complains that the Award has been given retrospective operation entailing heavy burden upon it.

In support of the above contentions the Company states that its financial capacity does not bear the revision either of the wages and pays on the one hand or the dearness allowance on the other. It submits that the Tribunal in revising the wages, pays and the dearness allowance has followed wrong principles and ignored those laid down by this Court.

Much of the argument in respect of wages to daily rated workmen and pays to monthly-rated workmen is common and it will not be necessary to refer to the argument twice over in the course of this judgment.

This is the first revision of wages and the dearness allowance in this Company during the last 20 years. The wage scales and the dearness allowance were fixed unilaterally to start with. The minimum basic wage was fixed at Rs. 30 per month or Rs. 1 16 per day which was the minimum settled by the Bombay Teittile Standardization Award and the First Central Pay Commission for Government servants in or about 1950. The Tribunal has raised the minimum wage to Rs. l 35 per day, which is equivalent to a wage of Rs. 35 per month. The maxima have also been raised proportionately. Similarly, in the case of monthly rated workmen the minimW'I monthly salary, which was Rs. 60 for the lowest grade clerk, has been raised to Rs. 85/- and the maxi.mum has been increased in almost the same proportion. The Company contends that this increase is based upc !! wrong principles inasmuch as the wages and pays in this company have been compared not only with the companies operating non-ferrous metals in the same way but with general engineering concerns and has taken an irrelevant factor, namely, the yield from incentive bonus into consideration, has made wrong grades and unnecessary adjustment in making fitments without taking into account the financial burden thus involved and the capacity of the Company to bear it.

We shall consider these submissions.

In dealing with these contentions we shall begin by considering one contention which, if accepted, will cut at the very root of the case for revision of wages. It has, however, no merit. The submission is that there is no change of circumstances justifying a rc'fision of wages and pay scales or dearness allowance. It can hardly be maintained that wages fixed so far back do not need revision, when, as every one knows, commodity prices have soared high, the general level of wages has gone up and in some industries there have been two or three revisions already and in some others Wage Boards have been appointed to revise or fix wages. We can take judicial notice of these facts.

In this Company no revision has taken place and the demand is, therefore, not unjustified.

Before we deal with the other contentipns it is necessary to make a few preliminary observations about the principles which

D -

G -

KAMANI MBTALS v. WORKMEN (Hidayatullah, /,) 467

are to be followed. Jn questions of this type it is first desirable to consider what amount is necessary to maintain and even improve the workers' standard of living, how wages of the workers con cerned compare with those paid to workers of similar grade and skill by other employers in similar or other industries in the region and what wages the establishment or industry can afford to pay.

These are the fundamental principles which have to be borne in mind. The first, however, is a general inquiry into the structure of wages which it may not be necessary to examine elaborately each time because that inquiry is generally made independently of individual cases. The data is usually compiled by labour conferences and experts. The other two matters, of course, r, equire attention.

Fixation of a wage-structure is always a delicate task because a balance has to be struck between the demands of social justice which requires that the workmen should receive their proper share of the national income which they help to produce with a view to improving their standard of living, and the depletion which every increase in wages makes in the profits as this tends to divert capital from industry into other channels thought to be more profitable.

The task is not rendered any the easier because conditions vary from region to region, industry to industry and establishment toestablishment. To cope with these differences certain principles on which wages are fixed have been stated from time to time by this Court. Broadly speaking the first principle is that there is a minimum wage which, in any event, must be paid, irrespective . of the extent of profits, the financial condition of the establishment or the availability of workmen on lower wages. This minimum wage is independent of the kind of industry and applies to all alike big or small. It sets the lowest limit below which wages cannot be allowed to sink in all humanity. The second principle is that wages must be fair, that is to say, sufficiently high to provide a standard family with food, shelter, clothing, medical care and education of 'Children appropriate to the workman but not at a rate exceeding his wage earning capacity in the class of establishment to which he belongs. A fair wage is thus related to the earning capacity and the workload. It must, however, be realised that 'fair wage' is not 'living wage' by which is meant a wage which is sufficient to provide not only the essentials above-mentioned but a fair measure of frugal comfort with an ability to provide for old age and evil days. Fair wage lies between the minimumwage, which must be paid in any event, and the living wage, which is the goal. As time passes and prices rise, even the fair wage fixed for the time being tends to sag downwards and then a revision is necessary. To a certain extent ihe disparity is made up by the additional payment of dearness allowance. This allowance is given to compensate for the rise in the cost of living. But as it is

466 SUPalM! couar alPORTS

[1967] 2 S.C.R.

not advisable to have a 100% neutralisation lest it lead to inflation. the dearness allowance is often a little less than 100% neutralisation. In course of time even the addition of the dearness allowance doe; not sufficiently make up the gap between wages and cost of living and a revision of wages and/or dearness allowance then becomes necessary. This revision is done on certain principles.

ThL-se principles have been stated in more than one case of this Court. The Company, however, relies upon Norex Dry Cleaners v. Its Workmen('). The principle; laid down in that case have been accurately summarized in the head-note thus :

" .... But in fixing a fair wage. the capacity of the industry to bear the burden of the said wage scale is a very relevant and very important factor.

Before comparing the establishment in question with other establishments engaged in the same trade in the region, it would be obviously necessary for the industrial tribunal to compare the establishments in respect of their standing, the extent of the labour force employed by them. the extent of their respective customers and what is more important. a comparative study should be made of the profits and losses incurred by them for some years before the date of the award. It is well known that ih fixing the wage structure on a fair basis ; an attempt is generally made in assessing the additional liability imposed on the employer by the new wage structure and tn"ing to anticipate whether the employer would be able to meet it for a reasonably long period in future.

Where the award simply fixed the wage scales on the assumption that the establishment in question was comparable to the other two establishments in the same region without considering the aspects mentioned above, it must be set aside.

In the consequence, the industrial tribunal was directed to reconsider the question, of fixation of wage scales in the light of the principles mentioned supra. ..

The Company contends that many of the matters here stated have not been considered and the Award being defective for that reason deserves to be set aside. This is not a proper approach. The observations no doubt lay down the principal guide-lines but they are not intended to operate with the rigidity of a statutory enactment. The Court has indicated what lines of inquiry are likely to lead to the discovery of correct data for the fixation of fair wages in the sense explained above. In this task all the relevant considerations must enter but fruitless inquiries into matters of no parti-

<ll (1962) I L.L.J. 271.

XAMANl METALS v. WORKMEN (Hidayatu//a/1, J.) 469

cular importance to a case are hardly to be insisted upon because rather than prove of assistance, they might well frustrate the very object in view. Each case requires to be considered on its own facts.

In the case before us, all relevant circumstances have. in our opinion, entered the determination. and it has not been shown to us that any other circumstance could or should have been considered. In fact the argument was that the tribunal considered some irrelevant things and this has vitiated the finding. We shall now consider the specific objections.

The Company has a capital of Rs. 40,00,000. Its sales in 1957-58to1961-62 increased from Rs. 1,81,18,873 to Rs. 2,31,50.485 and its profits in 1962-63 were of the order of Rs. 28 lakhs, excluding Rs. St lakhs for depreciation and Rs. 2 lakhs for managing agency commission. The burden of the increased wage bill will not be more than l / l 0th of its net profits, to say nothing of some other savings by way of reduction of income-tax. The tribunal held that the burden could be borne and we agree. One part of the inquiry, namely, the capacity to pay the increased wage bill was satisfied.

The next part of the inquiry involved the application of the principle of industry-cum-region. This principle is that fixation or revision of scales of wages, pays or dearness allowance must not be out of tune with the wages etc. prevalent in the industry or the region. This is always desirable so that unfair competition may not result between an establishment and another and diversity in wages in the region may not lead to industrial unrest.

In attempting to compare one unit with another care must be taken that units differently placed or circumstanced are not considered as guides, without making adequate. allowance for the differences.

The same is true when the regional level of wages are considered and compared. In general words, comparable units may be compared but not units which are dissimilar. While disparity in wages in industrial concerns similarly placed leads to discontent, attempting to level up wages without making sufficient allowances for differences, leads to hardships.

It is complained that the Tribunal, has done exactly the opposite. namely, that it bas compared dissimilar concerns and not compared similar ones. What the Tribunal has done is to compare the Kamani Metals & Alloys (appellant Company) with the Indian Smelting and Refining Co. Ltd. and the Kamani Engineering Corporation Ltd. The appellant Company does not object to the first but to the second as it deals with non-ferrous metals and alloys and does not require engineering process in its manufacture.

For the same reason a comparison with Alcock Ashdown and Co. and Richardson and Cruddas & Co. is objected to. On the other hand, it is submitted that another company Devidayal Metals Industries Ltd., Bombay was a comparable concern.

470 SUPUMI OOtllT UPOaTI ( 1967] 2 S.C.Jl.

Both sides agree that a comparison with the Indian Smelting and Refining Co. Ltd. was proper. As regards Devidayal it is clear from the records that it is a much smaller concern and does not furnish a just basis for comparison. The scales of pay existing in it are considerably lower than the existing scales in many instances. As regards Kamani Engineering Corporation it is necessary to consider a few facts. In 1951 a common award was given in respect of Kamani Engineering Corporation and the Kamaru Metals and Alloys. In 1958 the demand for revision of dearness allowance was rejected by a common award. This time too the charter of demands in respect of the Kamani Engineering and Kamani Metals & Alloys was the same and given within a few days of each other. These references were first pending befor~

Mr. T. Bilgrani but as he had 551 references pending before him five references in respect of the Kamani group of industries were withdrawn from him and made over to Mr. Meher. The references were heard together. The award in the Kamani Engineering was rendered on 27th February, 1964 and that in Kamaru Metals & Alloys on 23rd April, 1964. Many of the exhibits were common and the two awards refer to these common exhibits. In these circumstances, the comparison was not inadmissible. The principle of fixation of wages and dearness allowance was stated by this Court in these words :

" .... The principle therefore which emerges from these t.wo decisions is that in applying the industry-cwn region formula for fixing wage-scales the tribunal should lay stress on the industry part of the formula if there are a large number of concerns in the same region carrying on the same industry ; in such a case in order that production cost may not be unequal and there may be equal competition wages should generally be fixed on the basis of the comparable industries, namely, industries of the same kind. But where the number of industries of the same kind in a particular region is small, it is the regioll part of the industry-cum-region formula which assumes . "(') unportance. . . . . . . . .

In dealing, therefore, with only one comparable concern it \'{as open to take into consideration the conditions existing in engineering concerns, particularly those in Kamani Engineering Corporation, which belongs to the same group and there is thus affinity between them.

We were taken through the comparative charts i; howing the scales of wages in these cbncerns and pointed out the differences particularly those operating to the disadvantage of the appellant Company. That some differences are bound to be there because

(I) Greaves Collon It Co. v. Their Workmcu (1964) S S.C, R. 362: [1964j I LL).

344, 346.

KAMANI METALS v. WOR, KMEN (Hidaystul/ah, J.) 471

of many imponderables that go into the fixation of wages, goes without saying. We are, of course, not expected to go into the matter over again in the appeal. An appeal against an award brought by special leave is not an appeal as of right.

It is not intended to be an appeal on every ground of fact and of law unless this Court considers it fit to examine the matter from any special angle. Before a party can claim redress, it must show that the award is defective by reason of an excess of jurisdiction or of a substantial error in applying the Jaw .or some settled principle or of some gross and palpable error occasioning substantial injustice.

An industrial adjudication by reason that it is an award cannot be assailed because some other person would have given a different award or that elaborate reasons have not been given.

We have considered the comparative charts carefully and on the whole, we are satisfied . that the scales of wages as fixed by this Award when compared with those existing in Indian Smelting, when they are high, are not so high as to merit special comment or interference.

Sometimes they are lower. It remains, however, to consider the case from the angle of the scales of wages existing in Kamani Engineering Corporation.

In dealing with the scales of pay in comparison with those existing in Kamani Engineering Corporation the Tribunal observed that higher wages were being fixed in the Kamani Metals & Alloys because the yield from incentive bonus in the Kamani Engineering Corpor.ation was between 20 to 30 % of the wages and the dearness allowance whereas in this Company it was abnormally low.

Mr. Gokhale contended that the yield from incentive bonus is an irrelevant factor to take into account and observed that if persons could get higher wages by not earning incentive bonus, the result might be a disincentive to work at all. Speaking generally, his objection is right to a certain extent. But it is not right in the circumstances of this case. The Company has since 1949 introduced a scheme of wage incentive. There is no straight piecerate system under which the worker is paid a fixed amount for each unit of out-put. There is .a fixation of average production for a whole group and not for the individual worker. The target in the melting section is fixed at 5000 cwt. and J 5 % on every G .additional 300 cwt. is fixed as bonus. Other sections have different targets and different percentages. A similar scheme also exists in the Kamani Engineering Corporation. What has happened is that the Tribunal in fixing scales of wages in the reference from Kamani Engineering fixed lower rates because it was of the opinion that quite a substantial sum was earned in that establishment by

H way of incentive bonus. When the Tribunal came to decide the present reference it recalled that lower wages were fixed in the Kamani Engineering Corporation case because of the yield frem

ncentive bonus. It, therefore, ascertained the yield in the Kaman i

472 SUPJ.BMI! COU.T llBPOllTS

[1967) 2 S.C.R.

Metals & Alloys and finding it low fixed the wages at the proper level unaffected by consideration of incentive bonus. This really means that proper wages were fixed in the Kamani Metals & Alloys without being infiuenced in any way by the yield from incentive bonus although in the case of Kamani Engineering Corporation lower wages were fixed because the yield from incentive bonus was very high. In these circumstances, we are of the opinion that the wages in the present case have not really been infiuenced by considerations of yield from incentive bonus whatever may be said of Kamani Engineering Corporation.

It was next contended that there is no c•1se made out for ad justment of the workmen in the new.time scale after grnnting them one additional increment after every three years' service and two additional increments after five years' service. The principle on which a point-to-point adjustment is sometimes departed from and increments are granted was stated in some cases of this Court.

It is sufficient to refer to only one of them. In Hindus.an Times, Lid. r. Their Workme11( '), the question of adjustment of existing employees into new scales was considered.

It was observed as

follow~ : ·

•· .... It may well be true that in the absence of any special circumstances an adjustment of the nature as allowed in this case by allowing special increment in the new scale on the basis of service already rendered may not be appropriate. Clearly, however, in the present case the tribunal took into consideration in deciding this question of adjustment the fact that it had been extremely cautious as regards increasing the old wagescales. Apparently, it thought that it would be fair to give some relief to the existing employees by means of such increase by way of adjustment while at the same time not burdening the employer with higher rates of wages for new incumbents.

In these circumstances, we do not see any justification for interfering with the directions given by the tribunal in the matter of adjustments."

In this case also the fixation of scales has been very cautious. The increase from Rs. 1·16 to Rs. 1·35 in th~ lowest category is not very high considering that these wages had existed for 12 years before they were so adjusted. Similarly, the starting wage in all the other three categories cannot be considered to be very high.

The same is the case with monthly-rated workmen. The annual increment is not unduly high and in these circumstances it cannot be said that the Tribunal was in error in departing from a point-topoint adjustment to grant one or two increments based on the

(I) [1964] I S.C.R. 2;4, 249: (1963] I L.L.J. 108 I IS.

KAMAN! METALS v. WORKMEN (Hidayatu//ah, J.) 473

length of service. The discretion was exercised on sound judicial Jines.

It was finally contended that the Tribunal was in error in making the Award retrospective from October I, 1962, when the reference was made on December 14, 1962 This objection has no force. In the charter of demands the workmen had claimed retrospective revision from July I, 1961. The matter was referred to the Board of Conciliation on September 8, 1962. When conciliation was frustrated because of the arrest of some of the workers of the Union under the Defence of India Rules, the present reference was made to the Tribunal. The Tribunal could have easily chosen September 8, 1962 but chose an intermediate date to be fair to both sides. In our judgment, the choice of October I, 1962 by the Tribunal cannot be characterised as either illegal or unfair.

The question of incentive bonus revision was not mooted before us and the direction that incentive bonus should be calculated on the new scale from Isl January, 1964 is more in favour of the employers than the workmen and no grievance can be made about it.

This brings us to the question of the monthly-rated workers.

Most of the points which we have discussed in relation to the dailyrated workmen are common. We have seen the scales which have been fixed and compared them with the rates obtaining in Indian Smelting and the Kamani Engineeting and other concerns and are satisfied that they have not been put so high as to merit interference at our hands. It is, however, contended that the Tribunal has gone beyond the Reference inasmuch as the Reference was in respect of special categories of monthly-rated employees by designation but the Tribunal has fixed the new scales not only for those workmen but for all clerical and other workmen which were classified as Grades A, B, C and D in 1950.

It is true that the Tribunal has not only fixed the new scales for those categories of monthly-paid employees who were named in the order of reference but has also provided that those scales shall apply to clerks in the A, B, C and D Grades. It is, however, clear that even the monthly-paid employees mentioned by name belong to one category or another in the Grades A to D. It would have been highly invidious if some persons in the Grades were to receive more pay than the others in the same Grade. The A ward, therefore, treats the Reference as referring to the 4 Grades although only some of the class who go by special designations in each Grade have been mentioned. The intention, however, was to have a general revision of the scales of payment to all workers paid monthly and the Tribunal was, therefore, right in not reading the Reference as restricted to only a few classes. By doing so the Tribunal has avoided further industrial unrest and disputes and has really given effect to the underlying object of the reference.

474 SUPUMB COU.T J.BPOJ.n

(1967) 2 S.C.R.

This brings us to the last question which is related to the dearness allowance payable to the monthly-rated workmen. Previous to the present Award the dearness allowance was payable in this company in the following manner ;

"On the !st Rs. 100-(upto Rs. 100) 60 per cent with a

On the 2nd Rs. 100-(upto Rs. 200)

On the 3rd Rs. 100-(upto Rs. 300)

On the 4th Rs. 100-(upto Rs. 400)

On the 5th Rs. 100-(upto Rs. 500)

On every hundred above Rs. 500-of

basic

minimum of the D.A. paid to the Textile Operatives by the Bombay Millowners' Association. 20 per cent of the 2nd hundred rupees.

15 per cent of the 3rd hundred rupees.

10 per cent of the 4th hurrdred rupees.

I 0 per cent of the 5th hundred rupees. 5 per cent of every hundred rupees.

The above percentage of dearness allowance is applicable when the Bombay Cost of Living Index rests between 311 to

320. Variation in the above percentage to be allowed per 10 p.oint movement in the index. First slab-3 per cent of dearness allowance ; 2nd slab I j per cent of dearness allowance; 3rd slab 1 per cent of dearness allowance ; 4th slab : per cent of dearness allowance and the last slab ! per cent of the dearness allowance."

In the Award this has been altered to a scheme which is as follows ; On the first Rs. 100 basic pay (upto Rs. 100) 60% On the second Rs. 100 basic pay (upto 35 % of the 2nd 100

Rs. 200) rupees.

On the third Rs. 100 basic pay ( upto 15 % of the 3rd I()() Rs. 300) rupees.

On the Rs. 301 basic and above 10 % of the balance.

NOTE : The minimum dearness allowance will be the revised teAtile scale.

The above percentage of dearness allowance is applicable when the Bombay Consumer Prit-e Index is hetween 311 and 320.

Variation per 10 point movement in the index should be as follows ;

KAMAN! METALS v. WORKMEN (Hidayatullah, l.) 475

First slab of Rs. 100 basic pay

Second slab of 100 basic pay Subsequent slabs

5 % (e.g . . dearness allowance will be 65 % of basic pay when index is between 321 and 330).

li% 1 %".

It is contended that linking the dearness allowance, after the consumer price index 321 to wages has made a departure from the fixation of dearness allowance fixed in the Kamani Engineering Corporation in which, under the same circumstances, the percentage after the consumer price inc; lex of 321 is that of the dear• ness allowance and not of the basic salary. On the other side, we were shown a number of awards in which dearness allowance has been fixed in the same manner as by this Award.

It appears that the case of Kamani Engineering was treated as a special case because the incentive bonus there was yielding a third of the total earnings of the workmen and it was considered that if the dearness allowance was also raised then a very great burden would be thrown upon the employer by reason of the incentive bonus. We cannot, therefore, use the precedent of the award in the Karnani Engineering Corporation because of these special facts. We are satisfied that in many other companies dearness allowance has been ordered to be calculated in the same manner as has been done by this Award and we see no reason, therefore, to interfere.

For these reasons we find no force in this appeal. It fails and will be dismissed with costs.

V.P.S.

Appeal dismisd.

KAMANI METALS & ALLOYS LTD

THEIR WORKMEN

M. HIDAYATULLAH

S. M. SIKRI

14th December 1962

R. Gokhale

N. Shroff

K. K .. Singhvi

R. S. Kulkarni

S. C. Aganmla

D. P.

Singh

Hidayatullait

Meher

Kamani Metals & Alloys Ltd.

September 8, 1962

December.14, 1962

Bombay Government

Industrial Disputes Act, 1947

Bombay Teittile Standardization Award

First Central Pay Commission

Kamani Metals & Alloys

Indian Smelting and Refining Co. Ltd.

Kamani Engineering Corporation Ltd.

Alcock Ashdown and Co.

Richardson and Cruddas & Co.

Devidayal

Kamani Engineering Corporation

Kamaru Metals and Alloys

Kamani Engineering

Kamani Metals & Alloys

T. Bilgrani

Meher

27th February, 1964

Kamaru Metals & Alloys

23rd April, 1964

Kamani Engineering Corpor.ation

Gokhale

October I, 1962

Karnani Engineering Corporation


MANAGEMENT OF NORTHERN RAILWAY

CO-OPERATIVE SOCIETY LTD.

INDUSTRIAL TRIBUNAL, RAJASTHAN, JAIPUR

A:'\D ANR.

Ja1111ary 27, 1967

[V. Bl!ARGAVA AND G. K. MITTER. JJ.)

l1ulus1ria/ Disp111e-Don1estic enq11iry-Na111r(I/ justice, requiren1ents of.

Res Judicala:-Petition filed 1111der Art. 226 of Consti1t11iv11 of lndia- Competency of reference nf di.rpute to lrulutrial Tribunal challeng!d- High Cqurt dis111issing petition-No appeal filed aga;,1s1 Higl1 Court's C order-Question of ca111pete11cy 0/ rrj.:>rencc whetlu.r can be raised in appeal against Tribunal's award.

Supreme Cou, t-Appea/ agai1u1 Industrial Tribunal's award-Respon- Je111 whether can cl1alle11ge Tribunal's order on grounds no/ accepted by Tribunal.

Respondent No. 2 was employed as Head Clerk in the Appellant Sociely

wich was a cperal!vc society of railwaymen. The Society Jevelled certain charges against him and so~ other employees, and a commi:tee was appointed to enquire inlo the said charges. The request made by Respondent No. 2 that a railway worker or an official of the railY.ray workers' Union be allowed 10 accompany him ai lhe enquiry was turned down. On this accounl he refused to appear al the enquiry which proceeded in his absence. On receipt of the enquiry commillee's report the Vice-President of the Sociely gave a second notice to Respondent No. 2 asking him to show cause why he should not be dismissed.

He asked for copies of the proceedings at the enquiry bu1 this request was not complied wilh and despite his submissions he was. dismissed. Adverse qrders were also passed aga1mt other employees. The raiJway workers' Union thereupon ra; sc<l an industrial dispule which was reforred by the State Government to the Industrial Tribunal. The Sociely filed a wri1 pelilion under Ari. 226 of the Conslitution on the ground that the dispule having been raised by the railway workers' Union and not by the Society's own employees, the reference to the Tribunal was not competent. The High Court dismissed the petition.

Thereafter lhe Tribunal heard lhe matter and held, so far as Respondent No. 2 was concerned, that (i) the charges agoinst him were vague, (ii) tha1 he was not entilled lo be accompanied at lhe enquiry by a stranger. and (iii) that the enquiry against him was vitiated owing to a denial of natural justice. The Society, by special leave. appealed to lhis Court.

HELD : (i) The appellant's plea relating to the compe'ency of the reference was barred bv re_-; j11dicata as the same plea had been raised by the appellant before ihe High Court and had been rejecled. The order of the High Court was no1 an interlocutory order but a final order in regard 10 the proceedings under Ari. 226.

The appropriate remedy for the appellant aainst the High Court's order wa< to come up in appeal to this Court d1her bv a cerlificate under Art. 133 or hy special leave under Art. 136 of the Constilution. [483 F; 484 DJ

Satyadhyan Gho.<YJ/ & Ors. v. Sm. Deurajin Debi & Anr. [1960] 3 S.C.R 590, di<linguished.

• II

N. U.Y. CO-OP. SOCY. v. JN])USTRIAL TRIBUNAL (Bhargava, I.) 471!

Ramesh and Anr. v. Genda/a/ Moti/a/ Patni & Ors., [1966) 3 S.C.R.

198. relied on.

(ii) The respondents were entitled to support tbe decision of the Tribu. nal ll\-en. on grounds which were not accepted by the Tribunal vr on other grounds which may not have been taken notice of by the Tribunal while Ibey were patent on the faoe of the record. (486 D] B Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji & Ors., A.I.R. 1965 S.C. 669 and Powarl Tea Estate '' Barkataki (M.K.) and Ors.,. [1965] ll L.L.J. 102, relied on.

(iii) The Tribunal rightly held that the second responclcnt was .not entitled to be represented by a stranger to the Society at the enquiry pro pooed to be held against him. [487 D-E]

(iv) The charges against the second respondent were vague and the material which was available in supp'ort of them was never disclosed to him. In these circumstances the mere refusal of the second respondent to appear at the enquiry would not satisfy the requirements of natural justille and make the enquiry valid. [487 FG]

The second notice issued by the Society to the second respondent was not required by any rule or law analogous. to Art. 311 or the Constitution, but in the instant case this subsequent opportunity was the only opportunity Which could have satisfied the f"..quirements of natural justice.

But this opportunity also was not adequate because copies of the proceedings against

hii:n were not supplied to the second respondent. (487 H-488 A]

The Tribunal was therefore fully justified in setting aside the order of removal based on the report of the committee of enquiry. [488 AB)

CIVIL APPELLATE JURISDICTION : CIVIL Appeal No. 496 of 1965.

Appeal by special leave from the award dated October T 1963 of the Industrial Tribunal, Rajasthan Jaipur in Case No. 2 of 1959.

K. L. Gosain, S. C. Malik, S. K. Mehta and K. L. Mehta, for the appellant.

R. K. Garg, S. C. Agarwala, Marudhar Mridul and Mohan Lal Calla, for respondent No. 2.

The Judsment of the Court was delivered by

Bbargava, J. The appellant in this appeal, brought up by special leave, is the Northern Railway Co-operative Credit Society Ud., Jodhpur (hereinafter referred to as "the Society") which is an Association of the employees of the Northern Railway at Jodhpur registered in 1920 under the Co-operative Societies Act. The Society had in its employment I 0 or 11 persons including Kanraj Mehta, the Head Clerk, Madho Lal, the Accountant, and three other Clerks, A. C. Sharma, V. D. Sharma and G. s.

Sa)lena.

At.a meeting of the Committee of Management held on 6th April, 1956, it was decided to hold the 36th and 37th Annual

478 SUPREME COURT llEPOllTS

[1967) 2 S.C.R.

General Meeting of the Shareholders for the years 1953-54 and 1954-55 on 28th April, 1956, i.e., afler a period of about 22 days.

Thereafter, Kanraj Mehta, the Head Clerk, on 8th April, 1956, applied for leave on medical grounds, having submitted a certificate from a registered Vaid. Initially, the application for leave was for four days, but, by subsequent applications, he continued to extend his leave up to 2nd May, 1956. The other four Clerks, mentioned above, also put in applications between 12th and 15th April, 1956 on similar Medical Certificates and continued their leave up to dates falling between 30th April and 4th May, 1956.

The industrial dispute decided by the award, against which the present appeal is directed, related to four of these Clerks- Kanraj Mehta, A. C. Sharma, V. D. Sharma and G. S. Saxena. against whom the Society decided to take disciplinary action. The case of the Society was that these persons had conspired to paralyse the working of the Society at the time of the impending Annual General Meeting on 28th April, 1956, by collectively submitting sickness certificates. In the case of Kanraj Mehta, the Society issued a letter in response to his application for leave directing him to attend the Railway Dispensary at 7 45 hrs. on 20th April, 1956, and asking him to report to Dr. B. P. Mathur for medical examination.

Kanraj did not comply with this direction and continued to send further applications for leave accompanied by the certificates of the Vaid.

His leave applications were never actually sanctioned, but he was allowed to resume duty afler the expiry of the leave asked for by him in his last application, i.e., on 3rd May, 1956. Then on the 19th May, 1956, the Society issued a charge-sheet against Kanraj Mehta containing five charges which are reproduced below :-

"(i) To instigate and conspire to paralyse the '>vr!jng

of the Society at the time of the impending Annual General Meeting on 28-4-1956 by collectiveiy submitting sick certificates.

(ii)

(iii)

Disobedience of orders in not attending for Medical Examination ride Hony.

Secretary's Jetter No.

CCS/Est. of 19-4-1956 which goes to show that you were not prepared to face the medical examination as you had pretended to be sick.

Taking active part in the issue and distribution of certain leaflets issued against the Management of the Society.

(fr) Carrying vilifying propaganda in connection with the elections of the Society at the Annual General Meeting on 28-4-1956.

E '

' H l

j -, .,, -·

N. lLY. CO-OP. SOCY, v. INDUSTRIAL TllIBtJNAL (Bhargava, J.) 479

(v) Instigating the depositors to withdraw their deposits

from the Society and thus undermining the very existence of the Institution."

In the charge-sheet, Kanraj was asked to show cause within seven days why he should not be dismissed from service or punished with any lesser penalty.

Charge-sheets were also served on the other employees mentioned above. Since in this appeal we are only concerned with the case of Kanraj, we need give details of the facts relating to his case only.

On 25th May, 1956, Kanraj sent his reply to the charge-sheet.

In that reply, he took the plea that there were no disciplinary rules framed and issued for the employees of the Society, and added that, if the rules were being enforced on the analogy of the Railway Rules, he would request the Secretary of the Society to let him know what offence he had committed and how that offence had been constituted. He further pleaded that the charges levelled against him were vague and were not specific. He then proceeded to deal with all the five charges, and in the case of four of them viz., (i), (iii), (iv) and (v) the plea put forward was that in the absence of details he could not answer the charges properly, though he denied those charges. At the end, he made a request that if an enquiry is held, he should be allowed to bring either a Railway or a trade Union official, specially shareholders who had interest in the Society's affairs and constituted the very structure of the Society in order to represent him. A Committee of Enquiry was appointed, consisting of Shri Deodutta Gaur as Chairman, and Bhailal and Vishwadeo Purohit as members to enquire into the charges against Kanraj. The information of the constitution of this Committee was conveyed to Kanraj by the letter dated 28th June 1956, and he was also told that he would be allowed to be accompanied by any employee of the Society at the enquiry if he so desired, but not by any other person as requested by him.

Kanraj, however continued to insist that he must be permitted to be accompanied by a Railway employee or a Union official, particularly because he was the senior most employee of the Society and he could not expect to get any assistance from any other junior employee.

This correspondence went on, and his request was not acceded to. Ultimately, on the date fixed for enquiry, Kanraj refused to appear on the ground that he had not been allowed to be represented as desired by him.

The Committee then submitted its report on 4th August,

1956. In the report, the Committee first considered the question whether it should proceed to record evidence of persons who had lodged complain ts regarding the charges levelled against Kanraj, or whether it should submit its report and findings on the basis of the record available before the Committee. The report of the

480 SUPllEMB OOUJ.T RB~TS {1961] 2.S.C.ll

Committee mentions that it decided to submit its report and findings on the basis of the record before the Enquiry Committee and that, thereafter, the evidence already available on record' which had been earlier considered by the Vice-Chairman befo~ issue of the charge-sheet, was duly examined, The Committee further considered it inadvisable to comment on this material as it held it to be as good as before and recorded its view that the charges still stood proved. On receipt of this report, the Vice.Chairman of the Society asked the Committee to give its independent opinion in the case as to whether Kanraj was guilty of the charges levelled or not. In reply to this, the Committee mentioned that the charges stood proved. In this subsequent report, the Committee added that, before arriving at the decision, it' had examined all evidence on record independently, and had also examined three to four witnesses verbally and had found that they corroborated the evidence already on record. It was stated that the witnesses examined verbally related to charges (i), (iii), (iv) and ( v) [in the report (ii) is an error for (iii)].

Thereafter, on 5th September. 1956, the Vice-Chairman issued a fresh notice to Kanraj, stating that he had come to the provisional decision that Kanraj should be dismissed from service for offences detailed in the charge-sheet, and calling upon him to show cause in writing not later than the end of seven days from the date of receipt of the notice why the proposed penalty should not be imposed upon him. Thereupon, Kanraj, on 13th September, I 956, sent a letter requesting the Vice-Chairman to supply to him a full copy of the proceedings and findings of the Enquiry Committee enumerated in its report, which had been considered by the Vice- Chairman resulting in the provisional decision to remove him from service. He added that on receipt of this material, he would reply to the above show cause notice. The Honorary Secretary of the Society, on the same day, sent a reply to this letter, stating that the application of Kanraj had been considered by the Vice-Chairman who had asked the Secretary to inform him that it was only as a matter of grace that he was being given another three days to reply to the show cause notice, and that there was no enquiry report envisaged in the Railway Board's order as the enquiry could not be held. It was further added that the report was only that the employee did not participate, and Kanraj was told that any dilatory replies would not be taken as proper replies and action would be taken under the Rules. Kanraj, on 16th September, 1956, sent a further letter in reply to this letter sent by the Hony. Secretary.

In this letter, he made a grievance of the fact that he had not been permitted to be represented as desired by him in the enquiry, and took notice of the fact that the provisional decision of the Vice- Chairman had been arrived at on the basis of the report of the Enquiry Committee which only reported that he did not parti-

N. RLY. CO-OP, SOCY. v. INDUSTRIAL TRIBUNAL (Bh<11gava, I.} 481

cipate.

Then he proceeded to plead ROt guilty to the charges and agam gave an explanation on each individual charge. Once again the grievance made included the plea that the charges were

vagu~.

On 17th Septemher, 1956, a letter was then issued under the signature of the Honorary Secretary informing Kanraj that he had been removed from service with effect from the 17th Sep

tember, 1956, and he was asked to hand over charge to the Accoun tant, Megh Raj. Minor punishments were also awarded to three other employees, A. C. Sharma, V. D. Sharma and G. S.

Saxena.

Thereupon, the dispute relating to the removal of Kanraj and the award of punishment to the other three employees was taken up by the Uttariya Railway Mazdoor Union, Jodhpur, and at the request sent through the Secretary of that Union, a reference was made by the Government of Rajasthan to the In dustrial Tribunal, Rajasthan, Jaipur, under s. JO{I)(d) of the Industrial Disputes Act No. 14 of 1947. In the reference, two issues were raised which were as follows :

"(!) Whether the removal of Shri Kanraj by the Management of the Northern Railway Co-operative Credit

Society, Jodhpur on the 17-9-1956 and the stopping of the grade increments of Sarvashri Acheleshwar, V. D. Sharma and G. S. Saxena w1s illegal or unjustified ;

(2) If so, what relief these workers are entitled to ?"

The Tribunal discussed in detail the case of Kanraj and held that the demand of Kanraj to be allowed to take assistance from a stranger to, the Society was unjustified and Kanraj could not succeed in assailing the validity of the proceedings of the Board of Enquiry on this ground. The Tribunal, however, held that Kanraj was justified in demanding from the Vice-Chairman of the Society copies of the documents which he mentioned when the second notice was issued to him, as he was entitled to receive copies of both the reports of the Committee before he could be called upon to give an adequate reply to the show cause notice. The Tribunal also accepted the plea of Kanraj that the charges which had been framd against Kanraj were rather vague and Kanraj was not wrong m his a verment before the Board of Enquiry that the charges were vague and that he couW not defend himself on that account. On this view, the Tribunal set aside the order of removal of Kanraj from service passed by the Society, but left it open to

H the Society, if they so desired, to re-institute the enquiry and to proceed against him in accordance with law.

It was further ?rdere? that, meanwhile, Kanraj stood restored to the position in which he was on 13th September, 1956. The Tribunal also made suitable orders in the cases of the other three employees,

SUPREME COURT REPORTS

[1967] 2 S.C.R.

A. C. Shanna, V. D. Sharma and G. S. Saxena, but the orders in their cases need not be reproduced, as the appeal before us does not relate to their cases. The appeal by the Society is directed against the order of the Tribunal insofar as it governs the case of Kanraj Mehta.

In this appeal, learned counsel appearing for the Society urged three points before us and we proceed to take them one by one.

The first point urged was that, in this case, the reference to the Industrial Tribunal was incompetent, because the dispute referred to the Tribunal was an individual dispute of four employees and was not an industrial dispute as it was not taken up by the workmen of the Society. It was urged that the Union which had sponsored the dispute was a Union of Railway employees only and not of the workmen of the Society which was separate and distinct from the Railway Administration. When this point was raised on behalf of the appellant, a preliminary objection was taken hy learned counsel appearing for the respondents that this plea sought to be raised on behalf of the appellant was barred by the principle of res judicata. It was urged that, while the reference was pending before the Industrial Tribunal, the Society filed a petition under Art. 226 of the Constitution in the High Court of Judicature for Rajasthan at Jodhpur, praying that a writ of prohibition be issued directing the Industrial Tribunal to refrain from taking any proceedings in this reference on the ground that the reference did not relate to an industrial dispute. The plea that the reference did not relate to an industrial dispute was on the same ground which was sought to be urged before us, viz., that the dispute had not been taken up by the workmen of the Society and the sponsoring of the dispute by the Railway Employees' Union did not make it an industrial dispute. A Division Bench of the High Court, by its judgment dated 7th February, 1962, dismissed the petition holding that the reference was competent on the ground that it was at least sponsored by 4 out of 11 workmen of the Society.

Against that judgment of the High Court, the appellant could have come up to this Court in appeal, but failed to do so and submitted to that judgment. The plea of learned counsel for the respondents was that that judgment having become final it was no longer open to the appellant to raise this plea in the present appeal against the subsequent award given by the Tribunal after exercising jurisdiction which the Tribunal was permitted to exercise by that judgment of the High Court.

On behalf of the appellant, learned counsel, however, urged that the order made by the High Court was in the nature of an interlocutory order and it was open to the appellant to challenge the correctness of that decision of the High Court in this appeal.

In support of his proposition that it is not necessary that an interlocutory order must be challenged immediately by an appeal and

N. RLY. CO-OP. SOCY. v. INDUSTRIAL TRIBUNAL (Bhargava, ].) 483

can be challenged when an appeal is filed again.st the final order in a civil proceeding, learned counsel relied on a decision of this Court in Satyadhyan Ghosal and Others v. Sm. Deorajin Debi and Anather.(') In that case, a question had arisen about the applicability of s. 28 of the Calcutta Thika Tenancy Act, 1949. The plea relating to it was rejected by the Munsif trying the suit. Against that order of the Munsif, a revision was filed in the High Court under s. 115 of the Code of Civil Procedure. The High Court held that the operation of s. 28 of the Act was not affected by the subsequent Amendment Act and remanded the case to the Munsif for disposal according to law. Thereafter, the Mnnsif passed the final decree in the suit, and against that decree, an appeal was brought to this Court after going through the usual procedure of moving the other Courts having jurisdiction. It was in these circumstances that this Court held that the order of the High Court, holding that s. 28 of the Act was applicable, could not operate as res judicata in the appeal before this Court, because the High Court's order of remand was merely an interlocutory order which did not terminate the proceedings pending in the Munsif's Court and w.Jtlch had not been appealed from at that stage. Consequently, in the appeal from the final decree or order it was open to the party concerned to challenge the correctness of the High Court's decision. It is to be noted that there were two special features in that case. One was that the order of the High Court, which was held not to bring in the principle of res judicata, was an interlocutory order, and the other was that it was made in a pending suit which, as a result of that order, did not finally terminate. In fact, the order of the High Court did not finally terminate any proceeding at all. On the other hand, in the case before us, the order relied upon by learned counsel for the respondents was not an interlocutory order and was not made in the proceedings pending before the Tribunal.

The order of the High Court was made in a completely independent proceeding instituted by a petition under Art. 226 of the Constitution for issue of a writ of prohibition. It was held by this Court in Ramesh and Another v. Gendalal Motilal Patni and Others(') that "when exercising jurisdiction under Art. 226 of the Constitution, the High Court does not hear an appeal or revision.

The High Court is moved to intervene and to bring before itself the record of a case decided by or pending before a Court or Tribunal or any authority within the High Court's jurisdiction. A petition to the High Court invoking this jurisdiction is a proceeding quite independent of the original controversy. The controversy in the High Court, in proceedings arising under Art. 226, ordinarily is whether a decision of, or a proceeding before, a Court or Tribunal or authority, should be allowed to stand or should be quashed

L2Sup.CI/67-2

484 SUPllMI! COURT llPOllTS

[1967) 2 S.C.R.

for want of jurisdiction or on account of errors of Jaw apparent on the face of the record. A decision in the exercise of this jurisdiction, whether interfering with the proceeding impugned or declining to do so, is a final decision in so far as the High Court is concerned because it terminates finally the special proceeding before it." This view was expressed when dealing with the question of applicability of Art. I 33 of the Constitution in respect of the order of the High Court. In that connection, the Court further pointed out that an appeal or a revision is a continuation of the original suit or proceeding and the finality must, therefore, attach to the whole of the matter and the matter should not he a live one after the decision of the High Court if it is to be regarded as final for the purpose of appeal under Art. I 33.

Notice was taken of the fact that the whole of the controversy had not been decided by the High Court when there is an appeal or revision against an interlocutory order.

In these circumstances, it is clear that if the appellant wanted to challenge the correctness of the decision of the High Court holding that this dispute was an industrial dispute, the appropriate remedy was to come up in appeal against the judgment of the High Court either by a certificate under Art. I 33 or by special leave under Art. 136 of the Constitution. The appellant having failed to do so, the judgment of the High Court became final, and, consequently, binding between the parties. The parties to that petition were the parties now before us in this appeal.

In this appeal brought up against the award of the Tribunal, consequently, it is no longer open to the appellant to raise the pica which was rejected by the High Court by its judgment dated 7th February, 1962. The first point raised on behalf of the appellant, therefore, fails.

The second point urged by learned counsel was that, in this case, the Tribunal in its award held that, when the enquiry was held by the Committee appointed by the Society, Kanraj was not entitled to claim that he must get assistance from a stranger to the

Society and that the rejection of his request was justified, so that the validity of the proceedings before the Committee of Enquiry was not open to challenge byKanraj. ltwas urged that in this appeal also, since there is no appeal on behalf of Kanraj or the Union representing him, this Court could not go into tho question whether the enquiry by the Committee was valid or invalid. The Court should confine itself to the proceedings subsequent to 13th September, 1956, which is the date to which Kanraj has been relegated by the Tribunal by directing that he will stand in the position in which he stood on that date. It was further urged that after 13th Septembe(, 1956, it was not at all incumbent on the Vice-Chairman to issue a second show cause notice or to give a fresh opportunity to Kanraj to show cause, and that if the Vice-Chairman did so, it was as a matter of indulgence. The provisions of Art. 311 of the

N. RLY. CO-OP. SOCY. v. INDUSTRIAL TRIBUNAL (Bhargava, 1.) 485

Constitution did not apply, because Kanraj was not a public servant, and the principles of natural justice did not require that a second show cause notice must be given by every employer after the employer forms his provisional opinion that the punishment or dismissal ot removal should be awarded. It was urged that, consequently, the Tribunal was wrong in setting aside the order of removal of Kanraj on the mere ground that the Vice-Chairman refused to supply to him the reports of the Enquiry Committee.

On behalf of the respondents, this plea was challenged and it was urged that it was open to the respondents to support the order of the Tribunal even on grounds decided against the respondents or grounds not urged before the Tribunal which might be apparent on the face of the record, even though the respondents have filed no appeal.

Reliance for this proposition was placed on a decision of this Court in Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji and Others.(I) In that case, an appeal was brought to this Court against the judgment of an Election Tribunal, and one of the respondents wanted to stipport the order of the Tribunal on grounds which had been negat)ved by the Tribunal. On behalf of the respondent, reliance was placed on the principle laid down in 0. XLI r. 22 of the Code of Civil Procedure.

This Court took notice of the fact that in the Rules of this Court there was no Rule analogous tor. 22 of 0. XLI, C. P. C., but held that the provision nearest to. it was the one contained in 0. XVIII, r. 3 of the Rules of this Court which required parties to file statements of cases. Sub-rule (I) of that rule provides that Part I of the statement of the case shall also set out the contentions of the parties and the points of law and fact arising in the appeal.

It further provides that in Part II a party shall set out the proposition of law to be urged in support of the contentions of the party lodging the case and the authorities in support thereof. The Court held that there is no reason to limit the provisions of this rule only to those contentions which dealt with the points found in favour of that party in the judgment appealed from.

The. Court further proceeded to hold that "apart from that, we think that, while dealing with the appeal before it, this Court has the power to decide all the points arising from the judgment appealed against and even in the absence of an express provision like 0. XLI, r. 22 of the Code of Civil Procedure, it can devise the appropriate procedure to be adopted at the hearing. There could be no better way of supplying the deficiency than by drawing upon the provisions of a general law like the Code of Civil Procedure and adopting such of those provisions as aTe suitable.

We cannot lose sight of the fact that normally a party in whose favour the judgment appealed from has been given will not be granted special leave to appeal from it. Considerations of justice

(l) A.I.R. 1965 S.C. 669.

-J 486 SUPREME COUllT REPORTS (1967] 2 s.c.R.

therefore, require that this Court should, in appropriate cases, permit a party placed in such a position to support the judgment in his favour even upon grounds which were negatived in that judgment."

In an appeal brought up against a judgment of the Labour Court in Powari Tea Estate v. Barkataki (M. K.) a11d Others(1), this Court was examining the correctness of the decision reached by the Labour Court and, while doing so, it appeared that the decision of Labour Court ould be justified on a ground to which the Labour Court had not made any reference. The Court held: "But it appears from the record that the decision reached by the Labour Court can be justified on another ground to which the Labour Court has not referred, but which is patent on the record." After expressing this view, the Court proceeded to examine this ground which was patent on the record and upheld the order of the Labour Court on that ground. In these circumstances, we consider that learned counsel for the respondents is justified in urging before us that the respondents arc entitled to support the decision of the Tribunal setting aside the order of Kanraj even on grounds which were not accepted by the Tribunal or on other grounds which may not have been taken notice of by the Tribunal' while they were patent on the face of the record.

The facts of this case, as enumerated by us above, show that the charge-sheet which .was served on Kanraj was in fact very vague and did not contain any such details as could enable him to give any explanation.

Charge No. 2 was the only charge in respect of which full details were mentioned. That charge was of disobedience of orders in not attending for medical examination in accordance with Honorary Secretary's letter of 19th April, 1956, from which an inference was drawn that Kanraj was not prepared to face the medical examination because he had pretended to be sick.

So far as this charge is concerned, there is nothing to indicate that there were any rules of the Society under which Kanraj was required to obey the orders given by the Honorary Secretary to appear for medical examination by the particular doctor nominated by him. In the absence of any rules, Kanraj could very well feel justified in relying on certificates obtained by him from a registered medical practitioner even though he might only be a Vaid practising Ayurvedic medicine. The charge of disobedience of orders, which were not enforceable under any rule, could neither be the basis of any order of dismissal or removal, nor could it lead to any inference that Kanraj had merely been pretending to be sick.

As regards the remaining four charges, they were clearly very vague. The first charge, in general terms, stated that Kanraj

(1) {1965) lI L.LJ. 102.

/t.

N. RLY. CO-OP. SOCY. v. INDUSTRIAL TllIBUNAL (Bhargava, I.) 48 7

had instigated and conspired to paralyse the working of the Society by collectively submitting sickness certificates. The charge did not mention whom he had instigated or with whom he had conspired, no.r id it indicate how this conspiracy was being inferred.

S1m1larly, the third charge of taking active part in the issue and distribution of certain leaflets against the management of the Society did not at all indicate what those leaflets were and what part Kanraj had taken in the issue and distribution of those leaflets. The fourth charge of carrying vilifying propaganda in connection with the elections of the Society at the Annual General Meeting on 28-4-1956 was again similarly vague as there was no specification as to the persons with whom this propaganda was carried on by Kanraj and where and when it was done. In the same way, the last and the fifth charge of instigating the depositors to withdraw their deposits from the Society was again very vague as there was no mention as to which depositors had been instigated and when they were instigated. In these circumstances Kanraj was fully justified in pleading that the charges were vagu~ and he was unable L) show cause against the charges served on him.

lt is true that the Tribunal correctly held that Kanraj was not entitled to be represented by a stranger to the Society at the enquiry proposed to be held against him. In fact, the correspondence which passed between Kanraj and the Society shows that Kanraj was taking a very unreasonable and undersirable atdtude in this matter and his conduct in persistently demanding representation by a stranger and on that account refusing to participate in the enquiry deserves to be condemned. That circumstance however, will not make the enquiry valid, unless it be held that an adequate opportunity was given to Kanraj to meet the charges framed against him. The charges, as we have indicated above, which were served on. Kanraj were very vague and he had no opportunity to give a reply to them. The material which was available in support of these charges was also never disclosed to him. The mere fact that Kanraj did not appear on the date fixed for the enquiry will not, in these 'circumstances, satisfy the requirement of the principles of natural justice that he should have been told of the details of the charges and the material available in support of these charges sh01ild have been disclosed to him. It seems to us that it was in view of this omission that the subsequent notice was given by the Vice-Chairman to Kanraj to show cause when the Vice-Chairman had formed his provisional opinion on the basis of the report of the Committee of Enquiry that the charges were proved and Kanraj should be removed from service. This subsequent show cause notice by the Vice-Chairman was, no doubt, not required by any rule or law analogous to Art. 311 of the Constitution, but in the instant case this subsequent opportunity which was offered by the Vice-Chairman was the only oppor-

SUPllEMB C:OUllT lll!PORTS (1967] 2 s.c.R.

tunity which could have satisfied the requirement of principles of natural justice, because in the earlier enquiry Kanraj had already been prejudiced by the vagueness of the charges and by the omission to disclose to him the material in support of those charges.

In the enquiry, no adequate opportunity having been given to Kanraj, the Tribunal was perfectly justified in setting aside the order of removal based on the report of the Committee of Enquiry, and it appears that it was in view of the 'aspect explained by us above that the Tribunal proceeded to lay down that it wa~ open to the Society to institute a fresh enquiry and give an opportunity to Kanraj to show cause after supplying copies of necessary documents to him as claimed by him when the notice dated 13th September, 1956 was issued to him. Consequently, we consider that the order passed by the Tribunal was fully justified .

The third and the last point urged by learned counsel for the appellant was that, even if the Tribunal held that the order of removal of Kanraj was unjustified, the Tribunal should not have directed his reinstatement, because the Society had taken a specific plea before the Tribunal that the Society had lost confidence in Kanraj. In support of this proposition, learned counsel relied on the decision of this Court in As.!Om Oil Co. Ltd., New f)e/hi v.

Its Workmen.(') It appears to us that there might have been some force in this submission if the position had still remained as it was whc:i the Tribunal made its direction for reinstatement. We were, however, informed by learned counsel for the appellant that, subsequent to the order of the Tribunal, Kanraj was actually reinstated and fresh proceedings for his dismissal were taken by the Society against him. The information given was that, in fact, a fresh order of removal of Kanraj from service has already been passed and that order is the subject matter of another industrial dispute before an Industrial Tribunal. In that industrial dispute, the question of the compensation payable to Kanraj is also under consideration. We think, that in view of these subsequent proceedings, it would not now be at all appropriate for this Court to set aside the order of the Tribunal directing reinstatement of Kanraj and thus create complications in respect of these subsequent proceedings. The position might have been different if we had come to the view that the Tribunal was altogether wrong in setting aside the order of removal from service of Kanraj.

While we are of the view that that order was justified, we do not think that any interference with the rest of the order of the Tribunal is called

ro~ • The appeal fails and is dismissed with costs.

G.C.

Appeal dismissed.

(ol A.l.R. 1960 S.C. 1264,

INDUSTRIAL TRIBUNAL, RAJASTHAN, JAIPUR

G. K. MITTER

Art. 226

raiJway workers' Union

Art. 133

Art. 136

[1960] 3 S.C.R 590

[1966) 3 S.C.R.

198

Art. 311

CIVIL APPELLATE JURISDICTION

K. L. Gosain

S. C. Malik

S. K. Mehta

K. L. Mehta

R. K. Garg

S. C. Agarwala

Marudhar Mridul

Mohan Lal Calla

Bbargava

Jodhpur

Kanraj Mehta

Madho Lal

A. C. Sharma

V. D. Sharma

G. s.

Sa)lena

6th April, 1956

2nd May, 1956

12th and 15th April, 1956

30th April and 4th May, 1956

G. S. Saxena

20th April, 1956

B. P. Mathur

Kanraj

3rd May, 1956

19th May, 1956

25th May, 1956

Deodutta Gaur

Bhailal

Vishwadeo Purohit

28th June 1956

4th August,

1956

5th September. 1956

13th September, I 956

16th September, 1956

17th Septemher, 1956

17th Sep

tember, 1956

Megh Raj

G. S.

Saxena

Uttariya Railway Mazdoor Union

Government of Rajasthan

dustrial Tribunal, Rajasthan, Jaipur

Industrial Disputes Act

Sarvashri Acheleshwar

S. Saxena

13th September, 1956

A. C. Shanna

Art. 226

Railway Employees' Union

7th February, 1962

s. 28

Calcutta Thika Tenancy Act, 1949

s. 115

the Code of Civil Procedure

s. 28

s. 28

Art. 226

Art. 226

Art. 226

Art. 136

byKanraj

13th Septembe(, 1956

Art. 311

the Code of Civil Procedure

the Code of Civil Procedure

the Code of Civil Procedure

19th April, 1956

Art. 311


D. SANJEEVAYYA v.

ELECTION TRIBUNAL, ANDHRA PRADESH & ORS.

January 27, 1967

[K. N. WANCHOO AND V: RAMASWAMI, JJ, j

R•resentation of the l'eop/e ct (43 of 195.1), s. 150-Election petillOn with a prayer for a declaration that the petitioner was duly elected- Resignation by returned candidate-If Election Commission bound to hold

bye-d/ectkm forthwith.

The second respondent filed an election petition for the declarations : (I) that the election of the appellant to the State Legislative Assembly was void, and (2) that be himself was duly elected. While the petition was pending, the appellant was appointed as a Minister in the Central Cabinet and was elected as a member of the Rajya Sabha. He, thereupon resigned bis oeat in the State Legislative Assembly and filed a writ petition in the High Court for the issue of a writ of mandamus to the Election Commission of India on the ground that it was incumbent upon the Election Commission under s. 150 of the Representation of the People Act, 1951, to take steps forthwith to bold a bywlection for filling up the vacancy so caused.

The petition was dismissed.

IB appeal to this Cour•.,

HELD : No case was made out by the appellant for the issue of a writ of mandamus to the Election Commission as the Election Commission is not bound under s. 150 to take steps to hold a bye-election immediately after a vacancy arises. When the second respondent's election petition was referred to the Tribunal It bad to decide whether be should be declared to have been duly elected and, the appellant could not get rid of the petition by resigning his seat for whatever reason. In a case of this description it is open to the Election Commission to await the result of the election petition, for, if the second respondent eventually got a declaration that he himself had been duly elected, there .would be two candidates representing the same constituency at the same time, one declared by the Tribunal to be duly elected at the General Election and the other declared to have been duly elected at the bye-election. Further, it is also conceivable that there may be situations in which the Election Commission may not bold a bye-election at all or may bold it after a delay of 2 or 3 months after the vacancy arises. [493 B, F-H; 494 A-B, E; 495 F]

CIVIL APPELLATE JURISDICTION : Civil Appeal'No. I of 1967.

Appeal by special leave from the judgment and order dated September 19, 1966 of the Andhra Pradesh High Court in Writ Petition No. 1253of1965.

B. Sen, T. Lakshmaiah, M. M. Kshatriya, K. Venkatramaiah, and G. S. Chatterjee, for the appellant.

H M. K. Ramamurthi, Shyamala Pappu and Vi11eet Kumar, for respondent No. 2.

R. H. Dhebar and S. S. Javali, for respondent No. 3.

490 Sl!PllEME COUllT llEPOllTS ( 1967] 2 S.C.ll.

The Judgment of the Court was delivered by

Ramaswami, J. This appeal is brought, by spocial leave, from the judgment of the High Court of Andhra Pradesh dated September 19, 1966 in Writ Petition No. 1253 of 1965.

At the last General Election to the Andhra Pradesh Legislative Assembly held in February 1962, the appellant and the 2nd respondent-P.

Rajaratna Rao--were the contesting candidates for election from the Kodumuru constituency in Kurnool District. The result of the election was announced on February 25, 1962 and the appellant was declared to have been elected by a majority of about 7 , OCYJ votes. The second respondent thereafter filed an election petition (Election Petition No. 180 of 1962) under s. 81 of the Representation of the People Act, 1951 (Act 43 of 1951), hereinafter called the 'Act' calling in question the election of the appellant on the ground that various corrupt practices had been committed at the election and claiming a two-fold relief namely, that the election of the appellant should be declared to be void and that respondent No. 2 himself should be declared to have been duly elected. After the appellant had filed a written statement, the Election Tribunal, Hyderabad framed twenty-two issues, but the trial of the election petition could not be proceeded with as the appellant filed seeral inter-locutory applications raising various objections and after they were over-ruled by the Election Tribunal, the appellant filed severalwrit petitions in the Andhra Pradesh High Court. During the pendency of the election petition the appellant was appointed by the President C1f India as Minister for Labour & Employment in the Central Cabinet. Subsequent to that appointment the appellant was elected as a Member of the Rajya Sabha on March 26, 1964.

Thereupon the appellant resigned his seat in the Legislative Assembly on April S, 1964 and intimated the same to the Speaker of the Assembly. On September 2, 1965 the appellant filed the present Writ Petition (Writ Petition No. 1253 of 1965) before the Andhra Pradesh High Court praying for a writ in the nature of mandamus commanding the Election Commission of India to act under s. 150 of the Act and call upon the Kodumuru constituency to elect a person for the purpose of filling up the vacancy caused by the resignation of the appellant. The appellant also prayed for a writ 'directing the Election Commission to withdraw election petition No. 180 of 1962 from the file of the Election Tribunal, Hyderabad and to stay all further proceedings in the trial of that election petition pending the disposal of the writ petition'. 1 n the course of argument before the High Court the appellant did not press the second prayer for 'directing the Election Commission to withdraw the election petition from the file of the Eiection Tribunal, Hyderabad'.

With regard to the first prayer, the High Court held that no case

was made out for the issue of a writ of ma11damus to the Election Commission and accordingly dismissed the writ petition.

On behalf of the appellant the argument was put forward that as soon as the appellant resigned his seat in the Legislative Assembly under Art. 190(3)(b) of the Constitution of India there was a duty cast on the Election Commission to take steps to hold a bye-election for filling the vacancy so caused under s. 150 of the Act. It was contended that it was incumbent upon the Election Commission to discharge this duty immediately without waiting for the result of the election petition filed by respondent No. 2 on April 11, 1962.

Article 190(3) of the Constitution states :

"190(3) If a member of a House of the Legislature of a State-

(a) becomes subject to any of .the disqualifications mentioned in clause (I) of article 191; '?r

(b) resigns his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be,

his seat shall thereupon become vacant."

Article 324 (1) of the Constitution provides:

"The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and t0 the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution, including the appointment of election tribunals for the decision of doubts and disputes arising out of or in connection with elections to Parliament and to the Legislatures of States shall be vested in a Commission (referred to in this Constitution as the Election Commission)."

Section 150(1) of the Act states as follows :

"150. (!) When the seat of a member elected to the Legislative Assembly of a State becomes vacant or is declared vacant or his election to the Legislative Assembly is declared void, the Election Commission shall, subject to the provisions of sub-section (2), by a notification in the Official Gazette, call upon the Assem:ily constituency concerned to elect a person for the purpose of filling the vacancy so caused before such date as may be specified in the notification, and the provisions of this Act and of the rules and

492 SUPREME COUllT REPOllTS

[1967] 2 S.C.R.

orders made thereunder shall apply, as far as may be, in A relation to the election of a member to fill such vacancy."

Sections 84 of the Act provides :

"A petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a further declaration that he him- B self or any other candidate has been duly elected."

Section 98 reads as follows :

"At the conclusion of the trial of an election petition the Tribunal shall make an order-

(a) dismissing the election petition; or

(b) declaring the election of all or any of the returned candidates to be void; or

(c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected;"

It was argued for the appellant that s. I 50 of the Act contemplates three contingencies on the happening of any one of which th~ Election Commission may call for a bye-election.

The first contingency namely, the seat of a member becoming vacant arises, when a member rsigns his scat ; the second contingency namely, the seat of a member being declared vacant, is brought about when a member absents himself from meetings of the House of the Legislature for a period of sixty days w; thout the permission of the House; while the third contingency arises when the election of a member :o the Legislative Assembly is declared void by an Election Tribunal under s. 98 (b) of the Act at the conclusion of the trial of an election petition.

It was argued for the appellant that the three contingencies contemplated by the section are mutually exclusive anJ upon the happening of any one of t!1em an obligation is cast upon the Election Commission to take steps to hold a bye-election forthwith.

In the present case, it was pointed out that the first contingency has arisen namely. the seat of a member became vacant upon his resignation and it was manifestly the d'uty of the Election Commission to take steps forthwith to hold a bye-election to fill the vacancy irrespective of the fact that an election petition was pending in which foe second re;- pondent had asked for a declaration that the election of the appellant was void and also for the relief that he :1imself should be declared to he duly elected.

We arc unable to accept the argument of the appellant as correct.

In our opinion, the provisions of s. 150 of the Act must be interpreted in the context of ss. 84 and 98(c) and other relevant

provisions of Part III of the same Act. If the interpretation contended for by the appellant is accepted as correct the vacancy must be filled by a bye-election as soon as a member resigns his seat notwithstanding the pendency of an election j)etitiou challenging his election. If the candidate who filed the election petition eventually gets a declaration that the election of the member is void and that he himself had been duly elected there will be two candidates representing the same constituency at the same time, one of them declared to be duly elected at the General Election and the other declared to have been elected at the bye-election and an impossible situation would arise. It cannot be supposed that Parliament contemplated such a situation while enacting s. 150 of the Act. Parliament could not have intended that the provisions of Part VI of the Act pertaining t0 election petitions, should stand abrogated as soon as a member resigns his seat in the Legislature. It is a well-settled rule of construction that the provisions of a statute should be so read as to harmonise with one another and the provisions of one section cannot be used to defeat those of another unless it is impossible to effect reconciliation between them. The principle stated in Crawford's Statutory Construction at page 260 is as follows :

"Hence the court should, when it seeks the legislative intent, construe all of the constituents parts of the statute together, and seek to ascertain the legislative intention from the whole act, considering every provision thereof in the light of the general purpose and object of the act itself, and endeavouring to make every part effective, harmonious, and sensible. This means, of course, that the court should attewpt to avoid absurd consequences in any part of the statute and refuse to regard any word, phrase, clause or sentence superfluous, unless such a result is clearly unavoidable." It is therefore not permissible, in the present case,' to interpret s. 150 of the Act in isolation without reference to Part III of the Act which prescribes the machinery for calling in question the election of a returned candidate. When an election petition has been referred to a Tribunal by the Election Commission and the former is seized of the matter, the petition has to be disposed of according to law. The Tribunal has to adjudge at the conclusion of the pro ceeding whether the returned candid::·~ has or has not committed any corrupt practice at the election and secondly. it has to decide whether the second respondent should or should not be declared to have been duly elected. A returned candidate cannot get rid of an election petition filed against him by resigning his seat in the Legislature, whatever the reason for his resignation may be.

In the present case, the election petition filed by respondent No. 2 has prayed for a composite relief namely, that the election of the

SUPREME COURT REPORTS fl 967] 2 S.C.R.

appellant should be declared to be void and that res11ondent No. 2 should be declared to be duly elected.

In 'a case of this description the Election Commission is not bound immediately to call upon the Assembly constituency to elect a person for the purpose of filling the vacancy caused by the resignation of the appellant.

It is open to the Election Commission to await the result of the election petition and thereafter decide whether a bye-election should be held or not. If the election petition is ultimately dismissed or if the election is set aside but no further relief is given, a bye-election would follow.

If, however, respondent No. 2 who filed the election petition or any other candidate is declared elected the provisions of s. ISO of the Act cannot operate at all because there is no vacancy to be filled. In the present case, therefore, we hold that the Election Commission is not bound under s. ISO of the Act to hold a bye-election forthwith but may suspend !akin& action under that section till the result of the election petition filed by respondent No. 2 is known.

This view is also supported by the circumstance that no time- .limit is fited in the section for the Election Commission to call upon the Assembly constituency concerned to elect a person for filling the vacancy. Nor docs the section say that the Election Commission shall hold a bye-election "forthwith" or "immediately".

Jt is also conceivable that there may be a situation in which the Election Commission may not hold a bye-election at all or may hold the bye-election after a delay of 2 or 3 months. Take for instance, a case where a member resigns his seat in the Legislative Assembly of a State 3 months before a General Election is due to be held. It cannot be suggested that the Election Comrnission is bound under s. 150( I) of the Act to hold a bye-eiection forthwith ir that vacancy. Take also another instance where a member of an Assembly of Himachal Pradesh resigns his seat during winter. It cannot be argued that the Election Commission is bound to issue a notification for a bye-election forthwith though the climatic conditions are unsuitable for holding such a byeelec ion.

The view that we have expressed as to the scope and effect Of s. 150 of the Act is borne out by the following passage from May's Parliamentary Practice, 17th Edn., pp. 176-177:

"Where a vacancy has occurred prior to, or immediately after, the first meeting of a new Parliament, the writ will not be issued until the time for presenting election petitions has expired. Nor will a writ be issued, if the seat which has been vacated be claimed on behalf of another candidate.

In December, 1852, several Members, against whose return election petitions were pending, accepted office under

the Crown. After much consideration, it was agreed that where a void election only was alleged, a new writ should be issued (Southampton and Carlow writs, 29 Dec. 1852); and again, in 1859 and in 1880, the same rule was adopted.

Where the seat is claimed, it has been ruled that the writ should be withheld until after the trial of that claim (Athlone Election, 1859), or until the petition has been withdrawn [Louth Election (Mr. Chichester Fortescue),

1866J.

In 1859, Viscount Bury accepted office under the Crown, while a petition against his return for Norwich, on the ground of bribery, was pending; and, as his scat was not claimed, a new writ was issued. Being again returned, a petition was presented against his second election, claiming the seat for another candidate. The petition against the first election came on for trial, and the committee reported that the sitting Members, Lord Bury and Mr. Schneider, had been guilty, by their agents, of bribery at that election. By virtue of that report, Lord Bury, under the Corrupt Practices Prevention Act, became incapable of sitting or voting in Parliament, or, in other words, ceased to be a Member of the House; but as a petition against his second return, claiming the sel).t, was then pending, a new writ was not issued [Par!. Deb. (1859) 155,

c. 865]."

For these reasons we hold that the High Court was right in holding that no case was made out for the issue of a writ of mandamus to the Election Commission and this appeal must be accordingly dismissed with costs.

V.P.S.

Appeal dismissed.

"-' .·

D. SANJEEVAYYA

ELECTION TRIBUNAL, ANDHRA PRADESH & ORS

January 27, 1967

K. N. WANCHOO

V: RAMASWAMI, JJ

s. 150

Central Cabinet

Election Commission of India

Election Commission

s. 150

Representation of the People Act, 1951

s. 150

CIVIL APPELLATE JURISDICTION

T. Lakshmaiah

M. M. Kshatriya

K. Venkatramaiah

G. S. Chatterjee

H M. K. Ramamurthi

Shyamala Pappu

Vi11eet Kumar

R. H. Dhebar

S. S. Javali

Ramaswami

September 19, 1966

Rajaratna Rao

Kurnool District

February 25, 1962

s. 81

Representation of the People Act, 1951

Election Tribunal, Hyderabad

Andhra Pradesh High Court

March 26, 1964

September 2, 1965

s. 150

Kodumuru constituency

Art. 190(3)(b)

Constitution of India

s. 150

April 11, 1962

Article 190(3)

article 191

Article 324

Parliament

Section 150(1)

Sections 84

Section 98

s. 98

s. 150

ss. 84 and 98(c)

Part III of the same Act

s. 150

Crawford

s. 150

s. 150( I)

Himachal Pradesh

s. 150

Southampton

Carlow

Chichester Fortescue

Viscount Bury

Norwich

Bury

Schneider