GOPAJ, KRISHNAJI KETKAR v.

MAHOMED HAJI LAl'lt-' & ORS,

April 19, 1968

[J. C. SHAH, V .. RAMASWAMI AND G. K. MITTER, JJ.]

E'11icle11c.e-Jn1porlt111t docun1enlary e\•frh•nce wi1hheld-Tcch'1icC1l plea of onus of proof ca11no1 prevent adverse inference.

The appellant claimed before th~ authorities under the Bombay Public Trusts Act, 1950, i11ter alia, that a certain plot of land belonged to him and not to the Trust of which he was Manager. The High 'court when the matter went before it held that the plot hclonged to the Trust.

Jn appeal by certificate to this Court,

HELD: On the evidence the plot in question must be held lo be the properly of the Trust. The failure of the appellmt to produce the account books admitted to he in his possession froht which it coul<l he .seen how the income from the plot was dealt with woul<l justify an atlverse inference against him. [865 E, 366 E, 867 El

Even if the burden of proof <locs not lie on a party the court may D <lraw an adverse inference i'C he withholds important documents in his possessio11 which can throw light on the facts in issue.

It is not a sound practice ior those desiring to rely upon a certain state of affairs to with hold front the court the best evidence which is in their possession which could throw light upon the issµcs in controver1Ey and to rely upon the abstract doctrine of onus of proof. [866 F]

Murugesani Pillai v. Manickcn•asaka Pandara, 44 I.A. 98, Biltu Rant &.

E Or.r. v. Jofnandan Prasdd & Or.r. C.A. No. 941 of 1965 dt. 154-68 and

Bila.\' Kunwar v. Dusraj Ranjit Singh & Ors. 42 I.A. 202, rehed on.

CIVIL APPELLATE J UR!SDICTION : Civil Appeal No. 954 of 1965.

Appeal from the judgment and decree dated March 8, 1963 of the Bombay High Court in First Appeal Nos. 338 and 422 of

1960.

H. R. Gokhale, W. I'. Oka, S. W. Oka and Ganpat Rai, for the appellant.

Danial Latifi and Hardev Sin!Jh, for respondents Nos, 3 ~~ G

M. S. K. Sastri and R. II. /Jhe/1ar, !or rcspot1<kn1 No. 5.

The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought, by certificate, from the judgment of the Bombay High Court dated March 8, 1963 in First Appeals Nos. 338 of 1960 and 422 of 1960.

H On or about April 15, 1952 the appellant made an application to the Deputy Charity Commissioner, Greater Bombay Region

I \ \

A under s. 18 of the Bombay Public Trusts Act (Bombay Act XXIX of 1950), hereinafter referred to as the 'Act' for registration of the Peer Haji Malang Dargah near Kalyan in the Thana District (h"e- Dafter referred to as the 'Dargah') without prejudice to his contel!tion that the Dargah was not a public trust to which the Act was applicable. n August 3, 1953 the Deputy Charity Com- B missioner made an order declaring that the Dargah was a public trust and directed its registration as such.

TheDeputy Charity Commissioner further held that among the properties of the Dargah was the land bearing Survey No. 134 of village Wadi on a portion of which the Dargah is located.

The Deputy Charity

Commissioner also directed that the appropriate court might be moved for framing a scheme and appointing Trustees. The appellant preferred an appeal to the Charity Commissioner, Bombay under s. 70 of the Act against the order of the Deputy Charity Commissioner. The appeal was registered as Appeal No. 66 of

1953. Under orders of the Government the appeal was heard by the Deputy Charity Commissioner, Ahmedabad invested for that purpose with the powers of the Charity Commissioner. By his order dated September 11, 1954, the said Deputy Commissioner with appellate powers dismissed the appeal. Feeling aggrieved, the appellant filed an application under s. 72 of the Act in the Court of the District Judge, Thana to set aside the order of the Deputy Charity Commisioner with appellate powers, contending tliat the Dargah was not a public trust, that Survey No. 134 was not the property of the Trust and that the appellant was a hereditary Trustee. The application was opposed by respondents Nos. 1 to 4 who had intervened during the proceedings before the Deputy Charity Commissioner and by the Charity Commissioner, respondent No. 5 who was also impleaded by the appellant in that application. The respondent contended that the Dargah was a public trust and the land bearing Survey No. 134 belonged to the !rust and the appellant was not a Trustee of the Dargah. By his Judgment dated April 26, 1955 the District Judge, Thana held that the Dargah was a public trust but he left the questions as to whether Survey plot No. 134 belonged to the Dargah or not and whether the appellant was a trustee or only a de facto Manager of the Dargah, open for decision in the suit which had been le~ by the Charity Commissioner.

Against the order of

th~ Dtstnct Jude the Charity Commissioner filed an appeal in the High <; ourt, bem~ Appeal No. 501 of 1955. The appellant also filed hH> cross ob1ecttons. The .said appeal and cross objections were heard together and the High Court by its judgment dated November 19, 1958 confirmed the finding of the District Judcre

aou~ the public nature of the trust and further held that the District Judge should have decided whether Snrv•v plot No 134 was the property of the Dargah or not and wh; ther the apllant

was a trustee or a Manager of the trust. The case was therefore remanded back to the District Judge for deciding these questions.

Accordingly the District Judge reheard the matter and by his judgment dated February 29,. 1960 held, in the first place, that Survey plot No. 134 of village Wadi was not the property of the Public Trust Peer Haji Malang Saheb Dargah and that the appellant was the hereditary trustee of the Trust, his family being its hereditary trustee. . Against the judgment of the District Judge two appeals were filed in the High Court. First Appeal No. 338 of 1960 was filed by respondents Nos. 3 and 4 and First Appeal No. 422 of 1960 was filed by the Charity Commissioner, respondent No. 5. Both the appeals were heard together by the Higl:! Court.

By its judgment dated March 8, 1968, the High Court allowed both the appeals.

The High Court confirmed, in the first place, the finding of the District Jildge that the management of the Dargah has been in the family of the appellant. With regard to ownership of Survey plot No. 134 on which the Dargah is situated, the Higk Court held that the appellant was not the owner of that plot but that it was the property of the Dargah.

The main question presented for determination in this appeal is whether the land comprised in Survey plot No. 134 was the property of the Dargah or whether it belonged to the appellant.

It is necessary at this stage to set out the origin and history of the Dargah. The Dargah has been in existence for over about 700 years. Its origin is lost in antiquity but the Gazetteer of the Bombay Presidency tells us that the tomb is that of a Muslim saint who came to India as an Arab missionary in the thirteenth century.

According to tradition, there are two tombs in the Dargah in one of which is the dead-body of a Hindu princess and :in the other tomb the dead-body of the Muslim saint. The fame of the saint was at height when the English made their appearance at Kalyan in 1780. As they only stayed for two years, their departure in the year 1782 was ascribed to the power of the dead saint. The Peshwas were then in power in that region and after the departure of the English they sent a thanks offering under the charge of one Kashinath Pant Ketkar, a Kalyan Brahmin. It is said tl:!at the offering sent by the Peshwas was a pall of cloth of gold trimmed with pearls and supported on silver posr.. The tomb was in disrepair and Kashinath started to repair it and according to tradition was miraculously assisted by'the dead saint who, without human aid, quarried and dressed the large 111ocks of stone which now cover the tomb. It appears that Kashinath was not content to repair the tomb. He also wanted to manage it and this led to a dispute with Kalyan Muslims who resented Brahmin management of a Muslim shrine. Matters came to a head in 1817 and the dispute came before the Collector who declared that the

' '

A dead sint should settle the affair and that the only way of ascertaining the saint's wishes was by casting lots. This was done and three times the lot fell on the representative of Kashinath and so the matter ended and Kashinath's representative was proclaimed guardian of the tomb.

On behalf of the appellant reference was made to the Area Book, Ex. 66 of the year 1890. The entry shows the name of Laxmibai widow of Govind Gopal Ketkar under the heading

"if '!i<r'' (name of the person). Exhibit 67 is the entry from the Phalani Book for the year 1897 and shows the land as "Kilyacha Dongar" and under the column "li:<fll'Rf

'!'IT" is shown the name of LaXffiibai widow of Govind Gopal. Exl1ibit 68 is of the same vear from the revision Phalani containing similar entry with the inap attached. In Exhibit 70 the name of Laxmibai is shown as "Khatedar" for the year 1906. In the remarks column there is an entry "one built well, one pakka built masjid, one Dargah, one tomb". Exhibit 71 is an entry for the year 1915 from Akar Phod Patrak and in the column of "Kabjedar" the naine of Rukminibai Hari appears with regard to plot

134. Thereafter, in the record of rights for the year 1913, Ex. 76, the name of the predecessor of the appellant is shown. On the basis of these entries it was submitted by Mr. Gokhale that the ownership of the plot was with the appellant and not with the Dargah. But there are important circumstances in this case which indicate that the appellant is not the owner of Survey plot No. 134. Exhibits 64 and 65 are significant in this connection.

Exhibit 64 is an entry from the "Sud" in Marathi for the year 1858 in connection with Survey plot No. 134 (Revisional Survey Number). The original Survey number of this plot was 24 and it was known as "Kilyacha Dongar". The total area is shown to be 249 acres , and 24 Gunthas. It is shown as 'Khalsa' land. Klzaraba is shown as 89 acres 24 Gunthas and the balance of the area is shown as 160 acres. In the last column the name of the cultivator js not mentioned but it is shown as "Khapachi". It is significant that the name of the Ketkar family is absent fwm this record. No convincing reason was furnished on behalf of the appellant to show why h.is name was not entered in the "Sud". It is also important to notice that the appellant has furnished no documentary evidence to show how his family acquired tHle to the land from the earliest time; there is no sanad or grant produced by the appellant to show that he had acquired title to the land. It further appears that the appellant's family di? not assert any title to the land at the time of the survey made m 1858; otherwise there is no reason why its name was not entered in the "Sud" of the vear 1858. It is true that th.ere ar.e a number of entris subsequeni to the year 1890 and 1897 m which the Ketkar family is shown as the "Khatedar" or

the occupant but these entries are not of much significance since the Ketkar. family was in the fiduciary position of a Manager of the Dargah and was lawfully in possession of Survey plot 134 in that capacity. There is also another important circumstance that the appellant has no lands of his own near plot No. 134 and the nearest lands he owns are in Bandhanwadi which are admittedly 3i to 4 miles away from the top of the hill. There is also the important admission made by the appellant in the course of his evidence that there are 2 or 3 tombs behind the Musaferkhana. He stated further that "there is no cemetery or burial ground in Survey No. 134". But this evidence is in direct conflict with the statement of the appellant in the previous case that "Round about the Dargah many people die every year ..... Anyone that died there, whether Hindu, Muslim or Parsee if he has no heirs is buried there". He also conceded that there is one public tank known as "Chasmyachi Vihir" near the Dargah and there are 5 wells near the Dargah and five boundary 'Aranas' about one mile from the Dargah. Lastly, reference should be made to the important circumstance that the appellant has not produced the account of the Dargah income. In the course of his evidence the appellant admitted that he was enjoying the income of plot No. 134 but he did not produce any accounts to substantiate his contention. He also admitted that "he had got record of the Dargah income and that account was kept. separately." But the appellant has not produced either his own accounts or the account of the Dargah to show as to how the income from plot No. 134 was dealt with.

Mr. Gokhale, however, argued that it was no part of the appellant's duty to produce the accounts unless he was called upon to do so and the onus was upon the respondents to prove the case and to show that the Dargah was the owner of plot No. 134. We are unable to accept this argument as correct. Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which couldo throw light. upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. In Murugesam Pillai v. Manichavasaka Pandora(') Lord Shaw observed as follows: ·

"A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to the Courts the best material for its decision. With regard to

(I) 44 I. A. 9q, at p • 103.

j, ..

third parties, this may be right enough-they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is, in their Lordships' opinion an inversion of sound practice for those desiring to rely upon a certain state of facts . to withhold from the Court the written evidence in their possession which would throw light upon the proposition." This passage was cited with approval by this Court in a rcent decision-Bi/tu Ram & Ors. v. Jainandan Pras<id & Ors.('). In that case, reliance was placed on behalf of the defendants upon the following passage from the decision of the Judicial Committee in Bi/as Kunwar v. Desraj Ranjit Singh & Ors. (2) :

"But it is open to a litigant to refrain from producing any documents that he considers irrelevant; if the other litigant is dissatisfied it is for him to apply for an affidavit of documents and he can obtain inspection and production of all that appears to him in such affidavit to he .relv?.nt end prcp:r. If h~ fail~ iiG to do, neither he nor the Court at his suggestion is entitled to draw any inference as to the contents of any such documents."

But Shah, J., speaking for the Court, stated:

"The observations of the Judicial Committee do not support the proposition that unless a party is caJled upon expressly to make an affidavit of documents and inspection and production of documents is demanded, the Court cannot raise an adverse inference against a party withholding evidence in his possession. Such a rule is inconsistentwith illustration (g) of s. 114 of the Evidence Act, and also an impressive body of authority."

For these reasons we are of the opinion that the High Court was right in reaching the conclusion that Survey plot No. 134

elonged to the Dargah and must be shown as the property belonging to the Public Trust. This appeal is accordingly dismissed with costs. One hearing fee

G.C.

(I) Civil Appeal 941 of 1965 decided on April IS, 1968.

(2) 42 I. A. 202, at p. 206.

GOPAJ, KRISHNAJI KETKAR

MAHOMED HAJI LAl'lt-' & ORS

C. SHAH

V .. RAMASWAMI

G. K. MITTER, JJ.

Bombay Public Trusts Act, 1950

CIVIL APPELLATE J UR!SDICTION

H. R. Gokhale

W. I'. Oka

S. W. Oka

Ganpat Rai

Danial Latifi

Hardev Sin!Jh

M. S. K. Sastri

Ramaswami

s. 18

Bombay Act XXIX of 1950

August 3, 1953

Wadi

Charity Commissioner, Bombay

s. 70

Ahmedabad

September 11, 1954

s. 72

Court of the District Judge, Thana

April 26, 1955

District Judge, Thana

February 29,. 1960

Haji Malang Saheb Dargah

March 8, 1968

Bombay

India

Kalyan

Kashinath Pant Ketkar

Kashinath

Laxmibai

Govind Gopal Ketkar

LaXffiibai

Govind Gopal

Rukminibai Hari

Gokhale

Dargah

Ketkar family

Ketkar

Bandhanwadi

Shah

s. 114

April IS, 1968


BULCHAND CHANDmAM OF BOMBAY A

BANK OF INDIA LTD., FORT, BOMBAY

April 19, 1968

[J. C, SHAH, V. RAMASWAMI and G. K. MITTER, JJ.J S

The Displaced Persons (Debt Adjustment) Act 70 of 1951, ss, 2(6), 17, 22, 29-'Renewal' of debt meaning of-lnSurance policies whether governed by s. 11-Apportionment of liabilities between joint debtors under s. 22-Award of interest under s. 29.

The appellant was a citizen of Pakistan and had come u; India on June 6, 1950 on a temporary permit. During his absence the Pakistan Government declared him to be an evacuee. In December 1950 he was granted a Domicile Certificate and since then he continued to reside in Bombay. On May 4, 1945 the appellant had opened an account with tho Bank of India (Hyderabad, Sind Branch) called the Cash Credit Account. Tho amount was secured by an assignment of life insurance policies on tho appellant's life and mortgage of certain immovable properties. In July 1949 the appellant took another loan of Rs. 1,25,()()() from tho Hyderabad Bank on the security of certain properties and the personal security of himself and his wife. On .July 22, 1952 the appellant made an application under s. 5 of the Displaced Persons (Debt Adjust-· ment) Act, 1951 for adjustment elf his debts against several creditors, but pressed it only against tho Bank. Against the trial court's judgment. both parties appealed to the High Court. The High Court's judgment was challenged by the appellant iri this Court. It was contended on behalf of the appellant, inter alia : (i) That no interest should have been allowed to the Bank from August 15, 1947 in view of the provisions of s. 29 of .the Act; (ii) That the liability on the Cash Credit Account and on the Loan Account was not the sole responsibility of the appellant but was a joint liability and the High Court should have apportioned the joint debt under s. 22, without construing that section with the aid of s. 43 rlf the Indian Contract Ac~ (iii) That the insurance policies did not fall under s. 17 of the Act and the appellant was entitled to a refund of the amount recovered from them; and (iv) That the High .Court erred in interpreting the word 'renewal' occurring in the definition of s. 2(6).

HELD: (i) Proviso (b) to s. 29(1) of the Act confers a. dracretioo oo !00 Tribunal to allow interest not exceeding 4 per cent pe!r annum for the period from August IS, 1947 up to December 10, 1951, the date on which the Act came into force in Bombay after taking into account the paying capacity of the debtor as defined in s. 32. In the present case the High Court had on the statement of the appellant himself found his pay.. ing capacity to be far in excess of the debts due •from him, and it was tlterefore a fit case in which interest at 4 per cent should be allowed to the Bank from August 15, 1947 to December 10, 1951. [876 A-DJ

(ii) Even assuming that s. 43 of the contract is not relev'ant for tne construction of s. 22 of the Act the plea of the appellant •for apportionment of the debt must be rejected because from his own pleadings it was apparent that the liability both on the Loan Acoount and on the Cash Credit Account was undertaken solely by the appellant.

There was no justification for interfering with the finding of the High Court in !Iris respect. [876 E-Hl

I A

(iii) The insurance policies were 'movable property' as defined in s. 3 of the General Clauses Act. In the present case there was an absolllle assignment of the policies in favour of the Bank and the policies were also in its possession. Section 17 of the Act therefore applied and unle""

realisation under the policies was in ex= of the debt due the appellant was not entitled to refund. [877 F-0]

(iv) The confirmation or acknowledgement of indebtedness which includes both loan and interest and further advances l/ any, would not fall within the ambit of the expression 'renewal' in the proviso to s. 2(6) of 1he Act. The liability referred to in the proviso is the liabili!}'. solely by Way of renewal and the proviso to the section states that the onginal loan and not the one for which the renewal is made is the debt within the

meaning of the section. But the proviso does not apply if the confirmation or acknowledgement is not solely by way of re11; ewal on accou~ f

loan or interest but includes further advance.

The High Court was JUStlfied in determining the appellant's debts on this view. [877 H; 878 AB]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 690 of 1967.

Appeal from the judgment and decree dated November 16, 1962 of the Bombay High Court in Cross Appeals Nos. 756 and 791 of 1957.

M. C. Chagla and B. R. Agarwala, for the appellant.

S. T. Desai, Bhuvnesh Kumari, J. B. Dadachan; i. 0. C.

M11thur and Ravinder Narain, for the respondent.

The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought, by certificate, from the judgment of the Bombay High Court dated November 16, 1962 in Cross Appeals Nos. 756 and 791 of 1957.

The appellant, Bulchand Chandiram was a citizen of Pakistan and had come to India on June 6, 1950 on a temporary permit.

During his absence the Pakistan Government declared him to be an evacuee. In December, 1950 he was granted a Domicile Certificate and since then he has been residing in Bombay. On May 4, 1945 the appellant had opened an account with the Bank ef India. (Hyderabad Sind Branch) called the Cash Credit Account.

The account was secured by an assignment of life insurance policies on the appellant's life of about Rs. 79,000 and mortgage of immoveable properties l to 5 in Sch. 'F'. Between March and April 194 7 properties 4 and 5 were sold and the appellant paid Rs. 35,000 to the Bank. In this account on December 31, 1949 the amount due to the Bank was Rs. 1,06,281-12-11 (Item No. 36) and on April 22, 1950 the amount due was Rs. 1,07,969/ 15/ ll (Item No. 44). In July 1949 , tl!~ appellant took a loan of Rs. 1,25,000 from the Hyderabad Branch on the security of properties mentioned in Sch. 'G' and the personal security of himself and his wife.

In early 1948 this Branch was closed and so the account was transferred to the Karachi Branch. In this account on December 31, 1949 the amount due was Rs. 1,33,655/11/- and

870 SUPREME COUllT JUIPOllTS

(1968) 3 S.C.R.

as on April 22, 1950 the amount due was Rs. 1,35,735713/-

(ltem No. 45). On July 22, 1952 the appellant made an application under s. 5 of the Displaced Persons (Debts Adjustment) Act, 1951 (Act No. LXX of 1951), hereinafter referred to as the "said Act" for adjustment of his debts against several creditors.

During the hearing of the app1ication the appellant only pressed the application against the Bank and not against his other creditots.

The appellant alleged that the Bank had realised two of the iasurance policies and had recovered some other amounts. It was also said that the Bank had received the rent of the properties from Pakistan after they were declared evacuee properties. The appellant claimed that the Bank was also not entitled to claim interest after August 15, 194 7. He further alleged that the additional security on property No. 6 in the Schedule was obtained by the Billk by undue influence and coercion and hence the security to that extent was illegal and inoperative. The Bank contested die application on several grounds. According to the Bank the preperties of the appellant left in Pakistan were worth only Rs. 4,00,000. The Bank also alleged that the value of the assets of the appellant was not correctly shown. It admitted the realisation of Rs. 24, 700 on the maturity of the policies and stated that it had credited the appellant_ with the converted value in Pakistan rupees since the amount was transferred to Karachi when the Bank received the assent of the Controller of Foreign Exchange. The Bank contended that on June 30, 1952 the amount due in rspect of the Cash Credit Account was Rs. 1,22,160/2/11 and in the loan account Rs. 1,52,622/12/- with interest at on~r cent O\'er the Bank rate. It was contended for the Bank that if the appellant was held entitled to the protection of the said Act the Bank chose to act under s. 16 of the said Act to retain the security and will also be entitled to full amount of the insurance policies. Upon these rival contentions of the parties the trial court he!<! that the appellant was a displaced person, that he was entltled to dispubl the amount due even though acknowledgements were signed, that the debts were liable to be adjusted a& joint debts and apportioned between the debtors, that the insurance policies were moveable J>POPerties for the purpose of s. 22 of the said Act but not for the purpose of s. 17 and that the aepellant was entitled to a credit ol Rs. 17,126/9/4 in respect of tlie amount realised on the maturity of the insural\CC policies. The trial Judge accordingly held as below in respect of the Cash Credit Account :

.. Amount due as principal up to 10th Deoember 1951 Interest up to 10th December 1951 Expenses

Less rent realised and amount of reversed entrie.s

Rs. a. p . 89.Wl-11-11 ::?0,496- 4- 0

240-13- 0

l, IO, lJ2-12-ll

860-1()- 0

1,0'J,472-- 2 11"'

A I

A On apportionment the trial Judge held that a sum of Rs. 13,684/ 2/ 11 was recoverable out of life policies and Rs. 95;7~8/- from immoveable properties. The liability Of the appellant being 1/3rd, the trial Judge held him liable for Rs. 36,490/11/11. In respect Of the loan account the trial Judge held as follows :

"The amount due in that account up to 10th December 1951 Interest up to 10th December 1951 BKpenses

Less rent received .

Rs. a. p. 1.20,704-11--0

20,89~0

38~6---0

1,41,639-3--0

1,621-15--0

1,40,017--4--0"

The trial Judge held that the appellant was liable for Rs. 70,008-10-0 there being two joint debtors. Against the decision of the trial Judge the Bank preferred Appeal No. 756 of 1957 and the appellant Bulchand Chandiram preferred Appeal No. 791 of 1957 in the Bombay High Court. The High Court held that D on June 30, 1948 there was due to the Bank in the Cash Credit Account a sum of Rs. 1,02,902/7/ll and after .the said date there were renewals only or confirmations of liabilitx and there was a Promissory Note in respect of the said liability dated November l 8, 1947 to the extent of Rs. 1,09,000/- and the High Court was not entitled to go behind that date. The High Court E further held that in respect of the lci:in account a loan to the extent

of Rs. 1,25,000 was taken on July 12, 1947 and there was a Promissory Note in respect thereof dated June 19, 1947. The High Court held that the trial court was justified in awarding interest at 4 per cent from August 15, 1947 to December 10, 1951 which was the date of the commencement of the said Act, under F the proions of s. 29 '?f the said Act. Regarding the questfon of apportionment the High Court came to the conclusion, after atamining the evidence, that the appellant was alone liable fer the debts and no question therefore arose of apportionment of liability .. The High Court also examined the provisions of s. 17 of the satd Act and held that the insurance policies were moveable properties within the meaning of that section and there was a G valid. pledge in respect thereof. The High Court ultimately held that m respect of the Cash .Credit Account the Bank was entitled to a sum of Rs. 1,09,273.65 and in respect of the loan account the Bank was entitled to Rs. 1,47,068.49.

H It is necessary at this stage to set out the material provisions of the said Act. Section 2(6) defines a "debt'' as follows :

" 'debt' means any pecuniary liability, whether payable presently or in future, or under a decree or order of

I t

a civil or revenue court or otherwise, or whether ascer- A tained or to be ascertained, which- .......... ·.· ......................... .

and includes

any pecuniary liability incurred before the commencement of this Act by any such person as is referred to in

this clause which is based on, and is solely by way of renewal of, any such liability as is referred to fn subclause (a) or sub-clause (b) or sub-clause (c) :

Provided that in the case of a foan, whether in cash or in kind, the amount originally advanced and not the amount for which !he liability has been renewed Shall be deemed to be the extent of the liability;

Section 3 states :

"Over-riding effect of Act, rules and orders.- Save as otherwise expressly provided in this Act, the provisions of this Act and of the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other Jaw for the time being in force, or in any decree or order of a court, or in any contract between the panies."

Section 5 enables a displaced person to make an application for adjustment of debts to the proper Tribunal. Section 15 presc!1Des the consequences of an application by the displaced debtor and states that no proceedings can thereafter be taken against him for realisation of the debt. Section 16 gives an option to the creditor to elect as to whether he would retain the security in West Pakistan, and if he does so the section prescribes the consequences of such election on the part of the creditor.

Th~ section gives a first charge to the secured creditor on the amount of the compensation to which the debtor would be entitled to be paid for .his properties left in Pakistan. But the amount in respect of which charge is given is in the same proportion of the debt as the actual compensation bears to the verified claim in respect of the properties. If property is given in exchange then charge is given in respect of the debt in the same proportion as the property given bears to .the verified claim. Section 17 relates to the debt secured by the pledge of moveable property and provides as follows :

"17. Debts secured on moveable property.-(1) Where in respect.of a debt incurred by a displaced debtor and secured by .the pledge of movable property belonging

to him, the creditor had been placed in possession of such property at any time before the debtor became a displaced person, the following rules shall regulate the rights and liabilities of the creditor and the debtor, namely :·-

(a) the creditor may, if he is still in possession of'

the pledged property, realise the sum due to him by the sale of such property after giving to the debtor reasonable notice of the sale;

(b) the creditor shall not be entitled, in any case where the pledged property is no longer in his possession or is not available for redemption by the debtor, to recover from the debtor the debt or any part thereof for which the pledged property was security;

(c) the debtor shall not be liable, in the case of a sale by the creditor of any pledged property, whether under clause (a) or otherwise, to pay the balance where the proceeds of such sale-are less than the amount of the debt due;

(d) the creditor shall, in any case where the proceeds of the sale of the pledged property are greater than the amount of the debt due, pay over the surplus to the debtor. ·

(2) Notwithstanding anything contained in this section, the creditor shall be entitled to receive, and to give a valid discharge in respect of, any sum due under this Act or under any other law for the time being in force from an insurance company in respect of any claim arising out of the loss or destruction of the pledged property, but the creditor shall, in any case where the sum received from the insurance company iS greater than the amount of the debt due to him, pay o\ter the surplus to the debtor."

Section 22 relates to apportionment of joint debts and reads as follows : i

"Where a debt is due from a displaced person jointly with another person, the Tribunal shall, for the purposes of this Act, apportion the liability between them according to the following rules, namely :-

(a) if the liability of each debtor is defined, then according to the defined share of each;

( b) if the debt. was taken for any trade or business of the joint debtors, then according to the shares held by each of the joint debtors in the trade or business;

( c) if the debt was not taken in any defined shares or for any trade or business in which the partners have any defined share, the debt shall be apportioned into as. many parts as there are joint debtors, and each joint debtor shall be liable only for the part apportioned to him;

( d) if one joint debtor is a displaced person and another is not, the sum apportioned to the nondisplaced person shall not be deemed to be a debt within the mefoing of this Act and the -creditor may in respect of such debt seek any reinedy open to him in a civil court or otherwise; ............................... • . '• .....

(f) if the liability is secured by a mortgage of movable and immovable properties, the debt shall be apportioned between the two properties in the same proportion as the value of each property bears to the total value of the properties;

(g) where the relationship between the joint debtors is that of principal and surety, nothing contained in this Act shall prevent the institution of a suit for the recovery of the debt against the surety but no decree shall be passed in such suit for an amount in excess of the amount decreed or which can be decreed against the principal debtor in accordance with the provisions of this Act :

Provided that the total amount which may be recovered from the principal debtor and .the surety shall not exceed the amount decreed or which can be decreed by the Tribunal against the principal debtor in accordance with the provisions of this Act."

Section 29 makes provision for cesser of accrual of interest. It states :

"(1). On and from the 15th day of August, 1947, no interest shall accrue or be deemed to have accrued in respect of any debt owed by a displaced person, and no Tribunal shall allow any future interest in respect of any decree or order passed by it :

A Provided that-

(a) where the debt is secured by the pledge of shares, stocks, Government securities or secunties of a local authority, the Tribunal shall allow, for the period commencing from the 15th day of j\ugust,

B 194 7, and ending with the date of COil)Illence ment of this Act, interest to the creditor at the

rate mutually agreed upon or at a ate at which any dividend or interest has been paid or is payable in respect thereof, whichever is less;

(b) in any other case the Tribunal may, if it thinks it c just and proper to do so after taking into account the paying capacity of the debtor as defined in section 32, allow, for the period ment tioned in clause (a), interest at a rate not exceeding four per cent. per annum simple.

(2) Nothing in this section shall apply to the interest D payable in respect of any monies advanced by a creditor, .. including an insurance company, on the security of a policy of life insurance of a displaced debtor in order to keep it alive."

Section 49 reads as follows :

E "Past transactions not to be affected.-(!) If before

~ the commencement of this Act a displaced debtor has satisfied or discharged any of his liabilities in any manner whatsoever, such transactions shall not be affected by anything contained in this Act.

(2) Where the Tribunal has determined the amount due in respect of any debt in accordance with the provisions of this Act, any payments (including payments by way of interest) made by the . displaced debtor towards the debt prior to such determination shall be adjusted towards .the amount so determined :

G Provided that no creditor shall be called upon to refund any amount paid to him if it is found that it is in excess of the amount determined as being due to him under this Act." In support of this appeal Mr. Chagla contended, in the first place, that no interest should have been allowed to the Bank from

H August 15, 1947 in view of the provisions of s. 29 of the said

~ Act. We are unable to accept this argument as correct. Proviso

(b) to s. 29(1) of the said Act confers a discretion on the Tri~ bunal to allow interest not exceeding 4 per cent. per annum for

the period from August 15, 1947 up to December 10, 1951, the date on which the said Act came into force in Bombay after taking into account the paying capacity of the debtor as defined in s. 32 of the Act. The expression "paying capacity of the debtor" is defined in s. 32 of the said Act as follows :

"the aggregate of the mark.et value of all the attachable assets in India of the displaced debtor plus the income which is likely to accrue to him for the next three years succeeding, excluding from the computation of such income a sum calculated at the rate of two hundred and fifty rupees a month."

The High Court has observed, on the statement of the appellant himself, that his paying capacity far exceeded the aggregate debt due from him and it was therefore a fit case in which interest at 4 per cent, should be allowed to .the Bank from August 15, 1947 to December 10, 1951. In our opinion, the finding of the High Court on this point is supported by proper evidence. We accordingly reject the argument of the appellant on this aspect of the case.

We shall then proceed to consider the rtext co_ntention put forward on behalf of the appellant, namely, than the liability on the Cash Credit Account and on the Loan Account was not the sole liability of the appellant alone but was a joint liability and the High Court ought to have apportioned the joint debt under s. 22 of the said Act between the appellant and the joint debtors.

It was argued on behalf of the appellant that the High Court fell into an error in construing the provisions of s, 22 in the context of s. 43 of the Indian Contract Act which states that "when two or more persons make a joint promise, the promisee may, in the absence of express agreement to the contrary; compe~ any one or more of' such joint promisers to perform the whole of the promise". Mr. Chagla contended that this section has no application in view of the over-riding effect of s. 3 of the said Act. It is not necessary, in our opinion, to decide this point in the present case.

We shall assume in favour of the appellant that s. 43 of the Indian Contract Act has no application.

Even upon that assumption the plea of the appellant for apportionment of the debt must be rejected because tbe High Court has found, upon examination of the evidence, that the liability both on the Loan Account and on the Cash Credit Account was undertaken solely by the appellant. The finding of the High Court on this point is supported by paragraphs 12 and 15 of the petition of the appellant. In these two paragraphs the appellant admitted that he had opened the Cash Credit Account with the Bank and that he had taken the loan against mortgaged securities mentioned in Sch. G to the petition. We see no reason for differing from the finding

BULCBAND v. BANK OF INDIA (Ramaswami, J.) 877

of the. High Court. The liability on the Loan Account and on the Cash Credit Account was solely that of the appellant and therefore the question of apportionment of the debt under s. 22 of the said Act does not arise, The next question arising in this appeal is whether the appellant .is entitled to a refund of the amount recovered from the insurance policies.

It appears that there were 12 life policies menc tloned in Sch. 'E' of the application out of which two policjes matured in 1950 and 1951 and the rest matured during the pendency of the application of the appellant.

The Bank received Rs. 1,000 and Rs. 23,700 on January 22, 1951 and July 9, 1952.

In 1948 the appellant had executed absolute assignment in respect of all the policies in favour of the Bank. Since the amounts were due to the Karachi Branch, these were converted into Pakistan rupees and repatriated. In respect of the other policies the Bank recovered the additional amount of Rs. 25,684.56 P and Rs. 15,560.99 P.

The trial court held that as regards the first two policies, the appellant is not entitled to refund of excess amount over the apportioned debt of Rs. 13,684/2/ 11 but in respect of other policies the trial court held that the Bank was bound to refund the excess amount. In appeal the High Court has, however, taken the view that s. 17 of tl!e said Act applied and the appellant had no right to refund in respect of any of the in, surance policies unless it was shown that the realisation was in excess of the debt due. It was argued by Mr. Chagla that the insurance policies do not fall within s. 17 of the said Act. It is not possible to accept this contention as correct.

Clause 36 of s. 3 of the General Clauses Act (Act X of 1897) defines "movable property" to mean "property of every description, except immovable property". Clause 26 of s. 3 of the General Clauses Act defines "immovable property" to "include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth". In the present case there is the additional fact that the policies were assigned by the appellant and his wife to the Bank and thereafter the insurance policies remained in possession of the Bank. In the present case therefore there is an absolute assignment of the policies in favour of the Bank and the policies were also in its possession. In our opinion, s. 17 of the Act applies and unless realisation was in excess of the

dbt due the appellant was not entitled to refund. We accordingly re1ect the argument of the appellant on this aspect of the case.

It was also contended on behalf of the appellant that the High Court had erred in interpreting the word "renewal" occurring in the definition of the word "debt" in the said Act. In our opinion there is no substance in this argument.

It is manifest that th~ confinnation or acknowledgement of indebtedness which includes both loan and interest and further advances, if any would not fall

within the ambit of the expression "renewal" in the proviso to A s. 2 ( 6) of the said Act. The liability referred to in the proviso is the liability solely by way of renewal and the proviso to the sec1ioa states that the original loan and not the 0ne for which the renew.al is made is the debt within the meaning of the section. But the proviso does not apply if the confirmation or acknowledgement jg not solely by way of renewal on account of loan or interest but B includes further adv~. In our opinion, the High Court was justified in coming to the conclusion that the debts ascertained by it were the debts of the appellant within tile meaning of the said Act. The High Court found that . the promissory note dated November 18, 1947 for a sum of Rs. 1,09,000 represented the debt of Rs. 1,09,000 in the Cash Credit Account and that the Pl1> missory note dated June 19, 1947 fcir a sum of Rs. 1,25,000 C represented the debt of Rs. 1,25,000 in the Loan Account which was actually taken on July 12, 1947. As regards the Cash Credit Account, the High Court awarded simple interest up to December 10, 1951at4 per cent. which worked out to Rs. 17,702.79 P and held that an aggregate amount of Rs. 1,26,702.79 P as due by the appellant in the said Cash Credit Account. As regards the D Loan Account, the High Court awarded simple interest at 4 per cent. from July 12, 1947 up to December 10, 1951 and held that an aggregate amount of Rs. 1,47,068.49 P was due by the appellant.

The debt in the Cash Credit Account was rciluced by a deduction of Rs. 17,429.14 P (which represented the proportion of the verified claim to the surrender value of the pOJicies) to E Rs. 1,09,273.65 P.

Lastly, Mr. Chagla submittett that the appellant should have been given credit of the amount of Rs. 10,000 paid to the Bank as income of the mortgage properties in Pakistan. It wu pointed out that the amount was received as income of the mortgaged properties by the Custodian of Evacuee Properties in Pa\.-is- F tan and the amount was paid by the Pakistan Government to the Bank. It was argued that there was no justification for not allowing credit to. the appellant in respect of this amount. It is not necessary for us to go into the merits of this question because Mr. S. T. Desai on behalf of the resPondent-Bank said that be had no objection if the amount of Rs. 10,000 was credited towards G the debt of the appellant as determined by the High Court. We accordingly direct tht the amount of Rs. 10,000 should be credited towards the amount, of debt ascertained according to the High Court judgment.

Subject to this modification we affinn the judgment and decree of the Bombay High Court and dismiss this aopeal. There will H be no order as to costs of this appeal in this Court.

R.K.P.S.

Appeal dismissed.

L8S1JP.C.l./68-2,500-22-2-59-GTPF.

BULCHAND CHANDmAM OF BOMBAY

A

BANK OF INDIA LTD., FORT, BOMBAY

April 19, 1968

SHAH

V. RAMASWAMI

G. K. MITTER, JJ

s. 11

s. 22

s. 29

Bombay

May 4, 1945

Bank of India (Hyderabad

Hyderabad Bank

.July 22, 1952

s. 5

August 15, 1947

s. 29

s. 22

s. 43

s. 17

s. 2(6)

s. 29(1)

December 10, 1951

s. 32

s. 43

s. 22

s. 3

General Clauses Act

Section 17

s. 2(6)

CIVIL APPELLATE JURISDICTION

B. R. Agarwala

S. T. Desai

Bhuvnesh Kumari

B. Dadachan

Ravinder Narain

Ramaswami

Bombay High Court

Bulchand Chandiram

Pakistan Government

December 31, 1949

April 22, 1950

Hyderabad

Karachi

July 22, 1952

s. 5

Pakistan

August 15, 194 7

June 30, 1952

s. 16

s. 22

s. 17

July 12, 1947

June 19, 1947

s. 29

s. 17

Section 2(6)

Section 3

Section 5

Section 15

Section 16

West Pakistan

Section 17

Section 22

Section 29

15th day of August, 1947

section 32

Section 49

Chagla

s. 29

s. 29(1)

s. 32

s. 32

India

s. 22

s. 43

Indian Contract Act

s. 3

s. 43

Indian Contract Act

s. 22

January 22, 1951

July 9, 1952

s. 17

s. 17

Clause 36

s. 3

General Clauses Act

Clause 26

s. 3

General Clauses Act

s. 17

s. 2

November 18, 1947

December 10, 1951at4

S. T. Desai


MANAGEMENT, CHITAVALSAH JUTE MILLS LTD.

A v.

WORKMEN OF CHITAVALSAH JUTE MILLS

February 2, 1968

(G. K. MITTER AND K. S. HJ!GDE, JJ.)

Industrial Dispute-Gratuity scheme framed by Ti-ibunal-Comiderations in framing scheme.

The appellant was a jute mill. The Industrial Tribunal framed a gra tuity scheme for its workers. It was challenged by tbe appellant before this Cou'rt in an appeal under Art. 136 of the Constitution. Two contentions were urged, namely: (i) tbat the wage board was unable to recommend a gratuity scheme for the jute industry and hence tbere 'was no justi fication to frame the impugned scheme; (ii) in view of the losses incurred by tbe appellant during the years 1960-65, no additional burden should have been cast on it by introducing a gratuity scheme.

HELD : (i) The Wage Board's recommendation pertained to the jute industry as a whole and not to anv individual industrial unit. It cannot be understood as recommending tbat there should be no gratuity scheme for the employees in any particular unit in that industry. What was re levant to find out was whetber tbe appellant could bear tb-, additional burden. [10 BJ

(ii) The Tribunal recommended the gratuity scheme after taking into consideration the financial position of the appellant as well as the fact that in a sister concern such a scheme was in existence. The losses suffered by tbe appellant were considered by the Tribunal to he a passing phase.

What is of essence is tbe profit makin~ capacity of the concern. In determining that question one has to take into consideration the paid up capital of the company, its reserves, its earnings in the past and its futlll'e prospects. .f>. practical view of the question has to he taken. [10 D, G]

In the light of these principles and on the ma!erial placed before the Tribunal it was not possible to hold that the Tribunal's conclusion was without any just basis. [12 A] ·

National Iron & Steel Co. Ltd. & Ors. v. State of West Bengal & Anr.

F (1967] 2 S.C.R. 391 and Calcutta Insurance Co. Ltd. v. Their Workmen, (1967] 2 S.C.R. 596, relied on.

CML APPELLATE JURISDICTION: Civil Appeal No. 1627 of 1967.

Appeal by special leave from the Award dated March 31, 1967 of the Industrial Tribunal, Andhra Pradesh in Industrial Dispute No. 55 of 1965.

H. R. Gokhale and D. N. Gupta, for the appellant.

M. K. Ramamurthi, Shyamala Pappu and Vineet Kumar, for the respondents.

The Judgment of the Court was delivered by Hegde, J. This appeal has been brought to this Court by special leave. It arises from the decision of the Industrial Tribunal,

H •

CIIlTAVALSAH MILLS v. WORKMEN (Hegde, J.) 9

Andhra Pradesh, Hyderabad. The only question that arises for decision is whether on the basis of the material on the record there was any justification for framing a gratuity scheme for appellant's staff.

The admitted facts are these : The appellant concern is having about 500 looms.

It has a subscribed capital of a little over 35 lakhs. Its built up reserve is over thirty lakhs. In three out of the six years during the period 1960-65 it has suffered substantial losses. Out of the "remaining three years, in ooo year It made a profit of about Rs. 45,000 in another year about Rs. 13,000

and in 1962 over rupees twelve lakhs. The annual expenses of the appellant's ncern under the head 'salaries, wages and bonus' are nearly 4 7 lakhs.

It was found by the tribunal that the appellant concern and the Nellimarla Jute Mills are sister concerns. Both of them are under a single management, viz.. M/ s. Mcleod and Company, Calcutta. They are located in the same region, the distance between the two being about 25 miles. In Nellimarla Jute Mills a gratuity scheme for the staff is in existence and that in addition to provident fund benefits. Our attention wa& not invited, to any material on record to show that these findings are not correct. In the appellant concern also there is a provident fund scheme for the staff.

The appellant iri its counter-affidavit filed before the tribunal admitted that it had always been the policy of the management to introduce identical terms of employment for the workmen at Nellimarla and Chitavalsah. From the material before us it is not possible to find out the financial position of the Nellimarla mills. We ascertained from the learned counsel for the appellant that the appellant concern had made a profit of over a lakh F of rupees in 1966. The tribunal has found and that finding was not challenged before us that the additional burden to be borne by the appellant as a result of the gratuity scheme framed by it is about Rs. 3,000 per year.

On behalf of the appellant , two contentions were advanced in opposition to the pfOJXl"ed gratuity scheme. They are ( 1 ) the wage board was unable to recommend a gratuity scheme for the jute industry and hence there was no justification to frame the impugned scheme, and (2) in view of the losses incurred by the appellant during the years 1960-65, no additional burden should have been cast on it by introducing a gratuity scheme.

So far as the Wage Board recommendations is concerned, it pertains to the jute indnstry as a whole. After taking into consideration the importance of the jute industry for the national IASup. CI/68-2.

10 SUPllEMB COU'P.T lll!PO&TS

[1968] 3 S.C.R.

eoonomy and the difficulties currently experienced by that industry, the Wage Board thought that it would be inappropriate to oompel the industry to introduce a gratuity scheme for its employees. This recommendation relates to the industry as a wholo and not to any individual industrial unit. That recommendation

cannot be understood as recommending that there should be no gratuity scheme for the employees in any particular unit in that industry. What is true of an industry as a whole need not necessarily be so in respect of a unit therein. That position in law was not disputed by Mr. Gokhale, learned counsel for the appellant.

Therefore in considering the appropriateness or otherwise of the impugned scheme, we have to primarily consider its repercussion on the appellant. What is relevant to find out is whether the appellant can bear the additional burden and whether in the circumstances of the case there is justification for throwing that burden on it.

The tribunal has recontmended a gratuity scheme for the staff of the appellant after -taking into consideration its financial position as well as the fact that in the sister concern, i.e., the Nellimarla Mills such a scheme is in existence. It is n0 more in controversy that in determining the conditions of service of the industrial workers in any unit, it' is necessary to bear in mind the conditions prevailing in similar units in that region.

Generally speaking the basis for such a determination is industry-cum-region .

The appellant concern is an economic unit. Jute mills having 300 or more looms are considered as economic units. The appellant has 500 looms. Similarly the Nellimarla Mills have also got

500 looms. As seen earlier, the appellant is a big concern. Its paid up capital is over Rs. 35 lakhs. Its reserve is nearly as much as its paid up capital. This shows that in the past the appellant was a prosperous concern. It is true that it did suffer losses in some years in the recent past. But the question is whe.ther it is a temporary phase or not, The tribunal has come to the conclusion

that it is a passing phase. It is well settled that in drawing up enduring schemes like gratuity schemes temporary losses or gains should not be taken into consideration. What is of the essence is the profit making capacity of the concern. In determining that G question one has to take into consideration the paid up capital of the company, its reserves, its earnings in the past alld its future prospects.

A practical vew of the question has to be taken.

In National Iron and Steel Co. Ltd. and others v1 State of West Bengal and another(1 ), this Court speaking through one of H us (Mitter, J.) quoted with approval the following passage in

CIUTAVALSAH MILLS V. WORKMEN (Hegde, ].) 11

Burhanpur Tapti Mills Ltd. v. B. T. Mills Mazdoor Sangh [(1965)

1LU453]: ·

". . . there are two general methods of fixing . the terms of a gratuity scheme. It may be fixed on the basis of industry-cum-region or on the basis of units.

Both systems are admissible but regard must be had to the> surrounding circumstances to select the right basis Emphasis must always be laid upon the financial position of the employer and his profit-making capacity whichever method is selected", and it must be further seen ''whether the industrial court was right in appraising the financial condition and the profitmaking capacity of the company. A scheme for gratuity no doubt imposes a burden on the finances of the concern but the pressure is ex facie distributed over the years for ii is limited to .the number of retirements each year. Tue employer is not required to provide the whole amount at once. He may create a fund, if he likes and pay from the interest which accrues on a capitalised sum determined actuari

ally. This is one of providing the money. Ordinaril~ the payment is made eachyear to those who retire. T• judge whether the financial position would bear th strain the average number of retirements per year mu be found out. This is one part of the inquiry. 'T' next part of the inquiry is to see whether the emploi

can be expected to bear the burden from year to yei.

The present condition of his finances, the past history and the future prospects all enter into the appraisal of his ability."

In Calcutta Insurance Co. Ltd. v. Their Workmen('), this Court observed :

"On the financial aspect of a gratuity scheme, we were referred to the case of Wenger & Co. v. Their workment [ (1963) II LU 403]. There it was observed by this Court that the problem of the burden imposed by the gratuity scheme could be looked at in two ways.

One was to capitalise the burden on actuarial basis which would show theoretically that the burden would be very heavy; and the other was to look at the scheme in its practical aspect and find out how many employ~

retire every year on average.

Accrdmg to this Court, it was this. practical approach which ought to be taken into account."

(I) (1967] 2 S.C.R. 596.

12 SUPREME COURT llBPOllTS [1968j 3 S.C.R..1

In the light of the principles noted above and on the material A. placed before the tribunal it is not possible to hold that the tribunal's conclusion was without any just basis.

For the reasons mentioned above this appeal fails and the same is dismissed with costs.

G.C. 8 Appeal dismissed.

MANAGEMENT, CHITAVALSAH JUTE MILLS LTD

WORKMEN OF CHITAVALSAH JUTE MILLS

February 2, 1968

G. K. MITTER

Art. 136

(1967] 2 S.C.R. 391

(1967] 2 S.C.R. 596

H. R. Gokhale

D. N. Gupta

M. K. Ramamurthi

Shyamala Pappu

Vineet Kumar

Hegde

Nellimarla Jute Mills

Mcleod and Company, Calcutta

Nellimarla

Chitavalsah

Nellimarla mills

Gokhale

Nellimarla Mills

Mitter

(1967] 2 S.C.R. 596


P. D. SHARMA

STATE BANK OF •.NDlt\

February 1, 1968

(G. K. MITTER AND K. S. HEGDE, JI.]

Industrial Disputes Ac1 1947 (14 of 1947) s. 33(3)-Application to disc.harge protected workman-Pending reference ov.er-Cmnpetence to entertain the ap.,,, lication.

Constitution of India, Art. 136--Higli Court summarily dismissed writ petition against Jnduitrial Tribunal's order-Applicqtion for certificate under Arts. 132 and 133 pending--Special leave granted against Tribunal's order, whether to be revoked.

During the pendency of an industrial dispute, before the Tribunal between the respondent-employer and its workmen, the respondent decided to dismiss the appellant a 'protected workman'.

So the respondent applied under • .33(3) of the Industrial Disputes Act lo the Tribunal for permis sion to -discharge him.

The Tribunal made the award in the reference.

The Labour Court to which the application under s. 33(2) was transferred. held that the award in Reference having been made, it had no com petence to deal with the application under " 33 (3). The appellant filed a writ petition in the High Court challenging this order of the Labour Court. The writ petition was summarily dismissed. Thereafter , the appellant applied to the High Court for certificate under Articles 132(1) and 133(1)(c) of the Constitution.

During pendency of the applica'ion for certificatle, the appellant moV'ed this Court for Special Leave under Art. 136 of the Constitution against the order of the Labour Court, which was granted. In the petition for a special leave the fact of the filing of

lhe writ petition_ and its dismissal was mentioned.

Later the High Court re}:cted the application for certificate. The appellant contended that once an application under s. 33(3) is validly made, the Tribunal must decide whether permisson sought for should be granted of refused even though the industrial dispute had been cl::cided during the pendency of the application. The respOndent urged the revocation of the special leave as he had not appealed against the High Court's order made in the writ petition.

HELD : No case was made out to revoke the special leave granted. The High Court summarily dismissed the writ petition.

The order dismissing the \\Tit petition was not a speaking order. Hence no question of resjudicata arose.

The 'respondent's contention is not correct, _that the order of the High Court not having been appealed against, it has become final and if the present appeal is allowed there will be two conflicting final orders. The scope of an appeal vnder Art. 136 is much wider than a petition under Art 226. In an appeal under Art. 136, this Court can go into ques1ions on facts as well as law whereas the High Court in the Writ petition could have only considered questions which would have been strictly relevant in an application for a writ of certiorari. [93 G-94 B]

Dar, vao and others v. State of U.P. and Ors. [1962] I

S.C.R. 574, Management of Hindustan Co1nmercial Bank Ltd. Kanpur v. Bhagivan Das, A.I.R. 1965 S.C. 1142 and Charldi Prasad Clwkhani v. State of Bilwr,

[1962] 2 S.C.R. 276, referred to.

The Labour Court \\.'as right. in. holding that it was incompetent to deal A with an application under. s. 33(3) after the industrial dispute was decided.

An 3.pplication under s. 33(3) fOr prior permission is different from an application for appnwal under s. 33(2) (b) in respect of matters not connected with the dispute.

The latter is an independent proceeding and the order for the approval of which the application has been made would remain incohate until the competent authority accords its approval.

Ihe sole reason for an application under s. 33(3) is the pendency of the indu.s- B trial dispute and once the dispute is decided the ban placed on the common law, statutory or contractual rights of the employer stands removed and it ls free to exercise those rights. [JOO D-E; 101 BJ

Strawboard Manufacturing Co. v. Gobind, [1962] Supp. 3 S.C.R. 618 c referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 785 of 1966.

Appeal by special leave from the order dated February 10 1965 of the Labour Court, Lucknow (Central) in Misc. Case No. 22 of 1963.

A. K. Sen and Anand Prakash, for the appelJant.

Niren De, Solicitor-General, S. V. Gupte, and K. Baldev Mehta, for the respondent.

The Judgment of th~ Court was delivered by

Hegde, J. In the aforementioned appeal by special leave, the point for consideration is whether the Labour Court, Lucknow was right in its conclusion that it was not competent to deal with Misc. Case No. 22/63 on its jile, an application under s. 33(3) of the Industrial Disputes Act, 1947.

In 1961, the appellant was a clerk working in the Dehradun branch of the State Bank of India, the respondent herein.

Jn connection with certain alleged misconduct the respondent held a departmental enquiry against him; came to the conclusion that he was guilty of the charge leve!Jed against him and for the said offence it proposed to dismiss him from its service. But as at that time an industrial dispute between the respondent and its workmen was pending before the National Industrial Tribunal in Ref. No. 1 of 1960 (which will hereinafter be referred to as the industrial dispute), and the appellant being one of the office bearers of a recognized trade union connected with the respondent and consequently a 'protected workman', it applied on April 27, 1962 under s. 33 (3) to the National Industrial Tribunal for pennission to discharge him from service. On the authority of an order made by the Central Government on 23rd December, 1960 under sub-s. 2 of s. 33 B, the National Industrial Tribunal, Bombay transferred

the said application to the Labour Court, Delhi.

The National Industrial Tribunal Bombay, made its award in the aforementioned Reference on June 7, 1962. The same was published in the official gazette on June 13, 1962 and it came into force on July 31,

1962. Thereafter on February 23, 1963 the Government of India transferred the respondent's application under s. 33(3) pending before the Labour Court, Delhi, to the Labour Court, Lucknow.

That court dropped the said proceedings as per its order dated 10th February, 1965 holding that in view of the award in the Reference in question it had no competence to deal with that application.

This order of the Labour Court was challenged by the appellant in Civil Misc. Writ Petition No. 619 of 1965 on the fire of the Allahabad High Court. That petition was summarily dismissed. There after he applied to that court for a certificate under Articles 132( 1) and 133 (1) ( C) of the Constitution.

During the pendency of that application, he moved this Court on July 17, 1965 for special leave under Art. 136 of the Constitution to appeal against the order of the Tribunal.

Special leave was granted by this Court on September 8, 1965. The application for certificate made before :he Allahabad High Court was rejected by that court by its order dated September 13, 1965. No application for special leave under Art. 136 was :filed against that order.

When this appeal came up for hearing on a previous occasion, learned counsel for the respondent urged that the special leave granted should be revoked as the appellant had not appealed

gains! the order made by the Allahabad High Court in his writ petition.

Thereafter, the appellant moved this Court for special leave against the order of the Allahabad High Court rejecting his writ petition.

He also filed an application for condonation of the delay in submitting that special leave application.

We are not satisfied that there is any force in the preliminary objection taken by the learned Solicitor General on behalf of the respondent. This case does not fall within the rule laid down by this Court in Daryao and others v. State of U.P. and Others(').

As seen earlier, the High Court summarily dismissed the writ petition filed by the appellant.

The order dismissing the writ petition was not a speaking order.

Hence no question of res judicata arises.

The learned Solicitor General did not try to bring the pre" sent case within the rule laid down in Daryao's case( 1 ). His contention was that the order of the High Court not having been appealed against the sam" has become final and therefore it would be inappropriate for this Court to grant the relief prayed for by the appellant. According to him, if the present appeal is allowed there will be two conflicting final orders. We are unable to accept this contention as correct. The scope of an appeal under Art. 136 is

(!) [1962] I S.C.R., 574.

much wider than a petition under Art. 226. In an appeal under Art. 136, this Court can go into questions of facts as well as law whereas the High Court in the writ petition could have only considered questions which would have been strictly relevant in an application for a writ of certiorari. From the order of the High Court it is not possible to find out the reason or reasons that persuaded it to reject the appellant's petition. An appeal under Art. I 36 against an order can succeed even if no case is made out to issue a writ of certiorari.

The decision of this Court in Management of Hindustan Commercial Bank Ltd., Kanpur v. Bhagwan Dass(') to which reference was made by the learned Solicitor General does not bear on the question under consideration. There the appellant had applied to the High Court for the issue of a certificate under Art. 132 against its order but without pursuing that application h!l applied for and obtained from this Court special leave to appeal against the very same order and that :without obtaining exemption from compliance with r. 2 of 0.13 of the rules of this Court. It was under those circumstances this Court held that special leave granted should be revoked. ·

The learned Solicitor General in support of his preliminary objection placed a great deal of reliance on the decision of this Court in Chandi Prasad C, hokhani v. State df Bihar( 2 ). That was a case under the Bihar Sales Tax Act. The appellant's claim of certain deductions had been disallowed by the department He went up in revision to the Board of Revenue.

The Board of.

Revenue dismissed his revision petition. TherC!lfter under s. 25 ( 1) of the Bihar Sales Tax. Act, he applied to the Board of Revenue by means. of three different applications to state a case to the High Court of Patna in each of those petitions on questions of law formulated by him in his applications.

But those applications were rejected. The appellant then moved the High Court to call upon the Board to submit to it for its opinions the questions of law set out by him in his applications.

The High Court dismissed his applications in respect of the first two periods of assessment but by its order dated November 17, 1954 it directed the Board to state a case in regard to the third period on one of tl1e questions of law mentioned in the petition which alone in its opinion arose for consideration. By its judgment dated January 21 .• 1957 the High Court answered that question against the appellant. On Februarv 17, 1955 the appellant made applications to this Court for special leave to appeal against the order of the Board of Revenue referred to earlier. The leave prayed for was granted. When the appeals came up for hearing. objection was raised as to their maintainability. This Court held that though the words of Art. 136 are

(I) A.T.R. 1965 S.C.1142.

(2) [19621 2 S.C.R. 276.

p. D. SHARMA v. STATE BANK (Hedxe. I.) 95

wide this Court has uniformly held as a rule of practice that there

111ust be exceptional and special circwnstances to justify the exercise oif the discretion under that article. In the circumstances of ttlat dase the Court opined that the appellant was not entitled to

obtaiil special leave against the orders of the Board of Revenue and thus bypass the orders of the High Court. In the course of the judgment this Coun observed :

"The question before us is not wheliler we have the power; undoubtedly, we have the power, but the question is whether in the circumstances under present consideration, it is a proper exercise 'of discretion to allow the appellant to have resort to the power of this Court under A1t. 136. That question must be decided on the facts of each case, having regard to the practice of this Court and the limitations wliich this Court itself has laid down with regard to the exercise of i~, discretion under Art. 136."

The reasons that persuaded this Coun to revoke the special leave granted in those appeals are not available in this case.

This takes up to the question whether a case is made out to revoke the special leave granted. We shall presently see that an important question of law arises for decision in this case.

The High Coun sumniarily rejected the appellant's application under Art. 226.

At the time the appellant approached this Court for special leave, his application under Articles 132 and 133 ( 1 )(C) was pending in the High Court. Though in his special leave application the appellant mentioned the fact that his application under Art. 226 had been dismissed by the High Court, he failed to mention the fact that his application for a certificate under Articles 132 and 133 was pending before the High Court.

We were assured by Mr. A. K. Sen learned counsel for the appellant that. this omission was due to an erroneous impression of the law on the part of the Advocate on record and there was no intention to keep back that fact from this Court. As seen earlier the fact that the appellant's application under Art. 226 had been dismissed was mentioned in the special leave application. Hence the omission in question cannot be considered as a deliberate suppression of a fact. Under these circumstances, we do not think that a case is made out to revoke the special leave granted.

We now come to the merits of the appeal. As seen earlier the tribunal had concluded that it had no competence to pass orders on the application made by the respondent under s. 3 3 ( 3) as the industrial dispute had come to an end because of the award made by the National Tribunal.

According to Mr. Sen the tribunal erred in taking that view. He urged that once an application

under s. 33(3) is validly. made, the tribunal must decide whether the permission sought for should be granted or refused even though the industrial dispute had been decided during the pendency of that application.

His contention was that if an application under sub-ss. 1, 2 or 3 of s. 33 is made during the pendency of an industrial dispute, the tribunal which considers that application has to make an order one way or the_ other. ltl support of this contention he placed strong reliance on the decision of this .. Court in Tata Iron and Steel Co. Ltd. v. S. N. Modak(' ). That was a case nrising under s. 33(2)(b). The question that arose for decision therein was whether a proceeding validly commenced under that provision would automatically come to an end merely because the industrial dispute had in the meanwhile been finally detennined.

This Court upheld the view taken by the tribunal that s'uch an application wouid not automatieally come to an end. It was held therein that an application under s. 33(2)(b) is an independent proceeding and not an interlocutory proceeding; it' is a proceeding between an employer and -his eJilployee who was 11.0 do'ubt concerned with the industrial dispute along with the other employees: but it is nevertheless a proceeding between two parties in respect of a matter not covered by that dispute. It was further laid down therein that the order for the approval of which the application had been made would remain inchoate until thetribunal accords its approval; the said order cannot effectively terminate the relationship of the employer and the employetl until an approval for that order is obtained from the tribunal. If the approval is n.ot accorded, the employer would be bound to treat the workman as his employee and pay him"ful! wages for the period eve!) though the employer may subsequently proceed to terminate tli'e employee's service. In tliat case this Court confined its attention to the scope of s. 33(2)(b). It did not address itself to s. 33(3). Hence.

Mr. Sen is not right in his contention thatthe rule laid.down in that decision governs the controversy before us ..

Alternatively, Mr. Seµ contended .that tl).e ratio of that .decision at any rate would support his contention. 1'.o find out whether the. ratio of tl; iat decisiop. has any bearing on the. questiQn .that is before us, we have to examine sub-ss. (2) and (3). of s. 33, They

re~: G "(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute, or, where there are no such standing orders, in accordance with the terms of. the contract, whether express or imtllied, between H him and the workman-(a) alter, in regard to any

(I) (1965] 3 S.C.R. 4ll.

P. D. SHARMA v. STAT!! BANK (Hedge, J.)

matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or (b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or othwise, that work- 1nan; Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.

(3) Notwithstanding anything contained in subsection (2), no employer shall, during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute-(a) by altering to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceedings; or (b) by discharging or ounishing, whether by dismissal or otherwise, such protected workman, save with the express perniission in writing of the authority before which the proceeding is pending.

Exp/anation.-For the purposes of this sub-section, a 'protected workman' in relation to an establishment, means a workman who, being an officer of a registered trade union connected with the establishment is recog- nised as such in accordance with rules made in this behalf."

One common condition precedent for an application to be made under both those p:ovisions is lhe pendency of any conciliation proceedings before a conciliation officer or a board or any proceeding before an arbitrator or a Jabour court or a tnbunal or National Tribunal in respect of an industrial dispute. That apart die two provisions deal with different situations. Sub,.s. 2 of s. 33 concerns itself with actions that may be taken by an employer against his employees in respect of matters not connected with the moustriaJ dispute.

In those cases though the employer can take any of the actions mentioned in that provision in acco1dance with the standing orders or where there are no such standing orers, in accon; lance with the terms of the contract, whether express or implied, between him and the workmen, on his own authority, he must . .in the case. of discharging or punishing whether by di; missal or otherwise •. a workman, 'pay him wages for one month and must al, o make an application to the authority before which the industrial dispute is pending for approval of the action taken by him ..

SUPJ.U!MB COUllT IBPOllTS

[ 1968] 3 S.C.R.

Sub-s. 3 of s. 33 deals with 'protected workman' which expression

in relation to an establishment means a workman who being an olllcer of a registered trade union connected with the establish ment,. is recognized as such in accordance with the rules made in that behalf. If the employer wan~ to take any action prejudicial to a protected workman concerned in an industrial dispute pending before one of the authorities mentioned earlier he can do so only witi1 the "express permission in writing of the aulhority-befcr~ which the proceeding is pending". On a comparison of sub-ss. (2) .& (3) of s. 33 it will be seen that the scope of the two provisions

are wholly different. Taking the case of a worker's discharge or JlUnisbment by dismissal or otherwise. In the former the previous

permission of the authority before which the industrial dispute is .Pending is necessary but under the latter only a subsequent approfa! from a competent authority is needed. Though the applica 1ion under that provision should be made to the authority before which the industrial dispute is pending the approval to be obtained need not be fi; om that authority. Once approval is given it goes back to the date on which the order in question was made. If 1he approval asked for is not accorded then the action taken by the employer becomes ab . initio void and the employee will continue in service and his conditions of service will also continue without any break as if the order in question had not been made at all.

Hence we are unable to accept the contention of Mr. Sen that the decision of this Court in Tata Iron and Stel Company's case (1) has any bearing on the. question to be decided in this case.

The purpose of those two sub-sections are wholly different.

This will be further clear if we refer to the history of s. 33. That section, since its incorpo•ation in the Act in 1947, has undergone several legislative changes. As it stood originally it read : "No employer shall during the pendency of any conciliation proceeding or proceedings before a tribunal in respect of any industrial dispute, alter to the prejudice of the workmen concerned in such dispute the conditions of service applicable to them immediately before the commencement of such proceeding, nor save with the express permission in writing of the conciliation officer, board or tribunal, as the case may be shall he during the pendency of such proceedings, discharge, dismiss, or otherwise punish any such workmen, except for m.isconduct not connected with the dispute." The section was amended by Act 48 of 1950.

The amended section read : "During the pendency of any conciliation proceedings Cir proceedings before a tribunal in respect of any

industrial dispute, no employer shall

(a) alier to the prejudice of the workmen concerned in such dispute the conditions of service applicable to them immediately before the commencement of such proceedings; (b) discharge or punish, whether by disJnissal .or otbl'l!Wise, any workmen concerned in such dispute;

save with the express permission in writing of the conciliation officer, board or tnbunal, as the case may be."

lfhe amended section dropped the exception made in respect of misconduct not connected with the dispute.

Thi~ change in the law prevented the employers from discharging or punishing their employees even , in respect of a misconduct .not connected wiih the industrial dispute. That was a serious inroad into the disciplinary jurisdiction of the employer. It-is possibly with a view to avoid unnecessary interference with the rights of the employers the section was amended by Act 36 of 1956.

In Strawboard Manufacturing Co. v. Gov ind(') this Court observed:

"The plain .object of the section was to 1I1aintain the status quo as far as possible during the pendency of any industrial dispute before a tribunal.

But it seems to have been felt that s. 33, as it stood before the amendment of 1956, was too stringent for it completely took away the right of the employer to make any .alteration in the conditions of service or to make any order of discharge or dismissal without making any distinction as to whether such alteration or such an order of discharge or dismissal was in any manner connected with the dispute pending before an industrialauthority. It seems to have been felt therefore that the stringency of the provision should be softened and the employer should be permitted to make changes in conditions of service etc. which were not connected with the dispute pending before an industrial tribunal. For the same reason it was felt that the authority of the employer to dismis"' or discharge a work - man should not be completely taken away where the dismissal or discharge was dependent on the matters unconnected with the dispute pending before any tribunal.

At the same time it seems to have been felt that some safeguards should be provided for a workman who may be discharged or dismissed during the pendency of a dispute on account of some matter unconnected with the dispute. Consequently s. 33 was re-drafted in 1956 and considerably, expanded."

(ll [1962] Supp. 3 s.c.R. 61~. 623.

100 SUPREME COURT llEPORTS

By enacting s. 33 the Parliament wanted to ensure a fair and satisfact?ry enquiry of an ind.ustrial dispute undisturbed by any action on the part of the employer which could create fresh cause for disharmony between him . and his employ~. The object of s. 33 is that durmg the pendency of an industrial dispute status quo should be maintained and no fui:ther element of discord should be introduced. But then distinction was made between matters connected with the industrial dispute and those unconnected with it.

While construing the scope of sub-s. 3 of s. 33 we have to bear in mind the fact that under the common law the employer has a right to punish his employee for misconduct. Therefore all that we have to see is, to what extent that right is taken away by sub-s. 3 of s. 33. There is no doubt that at the time the application in question was made, an industrial dispute was pending between the respondent and its employees. It is admitted that the appellant is a 'protected workman'. He had not been discharged or punished before the industrial dispute was decided, though no doubt the respondent had proposed to dismiss him after obtaining the necessary permission from the tribunal.

The application for permission to dismiss him was made during the pendency of the principal dispute. No such permission would have been necessary if no industrial dis\>ute between the respondent and its employees was pending.

Hence, the sole reason for that application was the pendency of the industrial dispute. Once the industrial dispute was decided, the ban placed on the common law, statutory or contractual rights of the resµondent stood removed and it was free to exercise those rights. Thereafter there was no need to take anybody's permission to exercise its rights. In other words, the limitation placed on the .rspondent's rights by sub-s. 3 of s. 33 disappeared the moment tlie industrial dispute was decided. We are in agreement with the tribunal that it had no competence to consider the application made by the respondent after the indus- trial dispute was decided.

The learned Solicitor General tried to support the conclusion of the tribunal on yet another ground. His contention was that the permission sought for could have been granted only by the authortiy before which the industrial dispute was pending. In the instant case that dispute was pending before the National Tribunal at Bombay.

Therefore according to him, the Permission asked for could not have been given either by the Labour Court at Delhi or by the Labour Court at Lucknow. The language of sub-s. 3 of s. 3 3 prima facie lends support to this contention. But in resisting that contention Mr. Sen relied on s. 33B which confers power on the government and under certain conditions on the Tribunal or National Tribunal as the case may be to transfer any

proceeding pending before them to a Labour Court. The language of this provision is not in harmony with that in sub-ss. ( 1) and

(3) of s. 33.

The learned Solicitor General urged that to harmoniously construe these provisions we must confine the operation of s. 33B only to cases falling under sub-s. 2 of s. 33. It is not necessary to decide this controversy in this case in view of our conclusion that the Labour Court at Lucknow was right in its

conclusion that it had no competence to grant the permission prayed for as the industrial dispute had come to an el)d ..

For the reasons mentioned above, the appeal is dhmissed but there will be no order as to costs: The special leave application as well as the ciyil miscellaneous petition have now become superfluous.

They are accordingly dismissed without costs.

Y. P.

Appeal dismissed.

P. D. SHARMA

G. K. MITTER

K. S. HEGDE

s. 33(3)

Constitution of India

Art. 136

Arts. 132 and 133

Industrial Disputes Act

s. 33(2)

Articles 132(1) and 133(1)(c)

Art. 136

s. 33(3)

Art. 136

Art 226

Art. 136

[1962] 2 S.C.R. 276

s. 33(3)

s. 33(3)

s. 33(2)

s. 33(3)

A. K. Sen

Anand Prakash

Niren De

S. V. Gupte

K. Baldev Mehta

Hegde

Labour Court, Lucknow

s. 33(3)

Industrial Disputes Act, 1947

Dehradun

State Bank of India

National Industrial Tribunal

April 27, 1962

s. 33

Central Government

23rd December, 1960

s. 2

s. 33

National Industrial Tribunal, Bombay

Labour Court, Delhi

National Industrial Tribunal Bombay

June 7, 1962

June 13, 1962

31,

1962

February 23, 1963

Government of India

s. 33(3)

10th February, 1965

Allahabad High Court

Articles 132( 1) and 133

July 17, 1965

Art. 136

September 8, 1965

September 13, 1965

Art. 136

Daryao

Art. 136

Art. 226

Art. 136

Art. 132

s. 25

High Court of Patna

November 17, 1954

January 21 .• 1957

Februarv 17, 1955

Art. 136

Art. 136

Art. 226

Articles 132 and 133

Art. 226

Articles 132 and 133

A. K. Sen

Art. 226

s. 3

Sen

s. 33(3)

ss. 1, 2

s. 33

s. 33(2)(b)

s. 33(2)(b)

s. 33(2)(b)

s. 33(3)

s. 33

(1965] 3 S.C.R. 4

s. 2

s. 33

s. 3

s. 33

s. 33

Tata Iron and Stel Company

s. 33

s. 33

s. 33

s. 33

Parliament

s. 33

s. 3

s. 33

s. 3

s. 33

s. 3

s. 33

Labour Court at Delhi

Labour Court at Lucknow

s. 3

s. 3

s. 33B

s. 33

s. 33B

s. 2

s. 33