MASOOD ALAM ETC.

UNION OF INDIA & ORS.

January I I, 1973

[A. ALAG!RISWAMI, I. D. DUA AND C. A. VAIDIALINGAM, JJ;]

Mr.inll!nance of Internal Security Act, 1971 Section 3(1), Section 14(2)- -"Fresh facts"-Whether fre!;/z detention can be orde.red without fresh facts after revocation of expiry of the earlier order-Mala (ides--

Whether detention order under Maintenance of /ntlvnal Security Act mc..lafides, if ohjectionable activities attract preventive provisions (Chapter Vil/) of the Cr. P. C. also-Whether second detention Order rendered mala fide by the fact that the order was serl'ed when the detenu was already in jail.

The detenu was arrested on June 15. 1972 under section 3(l)(a)(i) a; nd (ii) of the Maintenance of Internal Security Act, 1971. The order was issued on the same' date on which he was arrested under sections

107/117/151 of the Cr. P. C.

The order was to expire on the 26th June, 1972 as the same was not approved under s. 3(3) by the Gove'rn ment.

On 25-6-1972, a fresh order of detention was passed which was served on the detenu on 26·6·1972 \.Vh'ile in jail.

The secqnd order did not mention any fresh grounds of detentions. Both the detention order were challenged on the grounds (i) that no fresh facts were disclosed for the fresh detention as required by s. 14(2) of act and

(iii) that the orders were nuJa fide. Granting the wTit of habeas corpus and directing the release of the petitioner.

HELD : The second detention order was made without alleging any fresh f-acts after the expiry of the first Ord.er.

The power of preventive detention is an extraordinary power intended to be exercised

n extraordinary emergent circumstances. The legislative scheme of ss. 13 and 14 of the Act suggest that the detaining authority is expected to know n.nd to take into account all the exising grounds and make one order of detention which must not go beyond the periOd fixed and fix the maximum period of detention upto 12 months from the date of detention.

It is to effectuate this restriction on. the maximum period and to ensure that it is not rendered nugatory or ineffective by resorting to camouflage Of making a fresh order operative soon after the expiry of the period of detention, and also to mi:11imise t~ resort to detention orders, that s. i4 restricts the detention of a. person on given set of facts to the original order and does 1101 pe"rmit a fresh order to be made on the same grounds which were in existence whe.n the original order \Vas made. [276H~277D]

Manubhusan Roy Prodhan v. State of West Bengal, W.P. No. 252 of 1972 dated 31·10-1972, relied on.

Sampat Prakash v. State of J, & K .. [1969] 3 S. C. R. 574, distinguished.

If the grounds are relevant and germane to the object of the Mainten<i; Tl'Ce of Internal Security Act, then merely because the obj, ection able activities covered thereby also attract the provisions <>f Chapter VIII H of the Cr. P.C., the preventive detntion cannot for that reason alone be considered to be ma/a fide provided the authority conce.med iJ satisfied of the necessity of the detention as contemplated by the Act. [273C]

Sahib Singh Dugga' v. Union of lndfo, [1966]

1 S.C. R.

MohGmmed Salem Khan v. C. C. Bose, A.LR.

1972 S.C.

Boriahan Gorey v. State of West Bengal, A.LR. 1972

S.C. relied on.

313, 2256, 2256,

Merely because a person concerned has been served with a fresh deten~ tion order while in custody, that service can.not invalidate the order of dete; ntion.

Although the past conduct, activities and antecedent history should be pfoximate in point of time and should have rational conc tion with the necessity for detention, what period of past activity should be considered is withi~ the discretion of the detaint:rrg authority.

[275C-H] Ujagar Singh v. State of Punjab, [1952] S.C.R. 757, Makhan Singh Tarsikka v. State of Pwijab, A.LR. 1964 S.C. 1120 and Rameshwar S/; aw v. District Magistrate Burdwan, (1964] 4 S.C.R. 921, referred to.

Hadibandhu Das v. The District Magistrate, Cuttack, [1969] I S.C.R. 227 and Kshetra Gogoi v. State of Assam, [1970] 2 S.C.R. 517, held inapplicable.

ORIGINAL JURISDICTION : Writ Petitions Nos. 469 and 470 of 1972.

Petitions under Article 32 of the Constitution of India for the enforcement of fundamental rights.

Bashir Ahmadi, K. L. Hathi, Manzar VI-Islam and P. C. Kapur, for the petitioners.

B. D. Sharma and R. N. Sachthey, for respondent No. I.

D. P. Uniya/ and 0. P. Rana, for respondents Nos. 2 to 6 (in W.P. No. 469) and for respondent Nos. 223 (in W.P.

No. 470).

The Judgment of the Court was delivered by DuA, J. These two petitions under Art. 32 of the Constitution for writs in the nature of habeas corpus (Masood Alam v. Union of India & ors. W.P. no. 469 of 1972 and Abdul Bari Kairanvi

v. Union of India W.P. No. 470 of 1972), have been heard together and are being disposed of by a common judgment.

Writ Petition No. 469 of 1972 : In writ petition no. 469 of 1972 we made a short order on December 20, 1972 directing the release of Masood Alam unless he was required in some other case, reserving our reasons for his release to be given later. We now proceed to deal with the arguments advanced on his behalf and give our reasons for our decision.

Masood Alam, detenu-petitioner, was arrested on June 15, 1972 pursuant to an order of detention dated June 14, 1972.

No copy of that order is produced on the record. It is, however, not disputed that the said order was made by the District Magis- :trate under s. 3(1)(a)(i) and (ii) of the Maintenance oflntemal

Security Act, 1971 (Act no. 26 of 1971) (hereinafter called the Act). The grounds of detention signed by the District Magistrate, Aligarh were served on the petitioner on June 17, 1972, pursuant to s. 8 of the Act. Those grounds read :-

"( 1) That you have been exciting communal feelings amongst Muslims and feeling of disaffection towards the Government of India and of hatred to other communities.

You have also been advocating use of force by Muslims in India to secure withdrawal of the

,1,.M.U. (Amendment) Bill, 1971-now an Act. rhc>e actions, which are a threat to security of the State ii!icl the maintenance of public order, find support from the following instances :-

(i) that you are organiser at Aligarh of Youth

Majlis a para-military organisation which imparts training to Muslims in the use of lathi, 5WOrds and knives, etc. You are member of Al Jehad, an international Islami~ movement. You are Naib Ami.r Ala Youth Majlis, U.P.

(ii) You went to participate in Youth Majlis training camp at Varanasi. You were trained in the use of knife and demonstrated the same at a function of the Youth Majlis held in Mohalla

Tantanpara, Aligarh.

(iii) You participated in a meeting addressed by

Shri Afaq Ahmed, Organiser, Youth Majlis,

U.P.

(iv) On 12-7-1971 you stressed upon members of

Youth Majlis to organise branches of Youth F Majlis in each Mohalla. You went to Allahabad to participate in the Youth Majlis Camp organisd there from 23 to 26-6-71 and were made :!'\· 1b Ala, U.P.

( v) You attended the meeting held at your residence on 29-10-71 wherein training programme G of Youth Majlis in use of knife and aiming by air gun was discussed.

(vi) You attended a private meeting of Muslim Majlis on 11-1-1971 at the residence of Dr.

Hanif in Mohalla Rasalganj, Aligarh. You disclosed there that the Youth Majlis was fully prepared to meet any situation on communal basis and pleaded for funds for Youth Majlis.

2. That you have extra territorial loyalties and are, therefore, a threat to security of. India which is evidenced from the following instances :-

(a) You visited Pakistan and returned from there on 29-4-1971 and participated in a meeting addressed by Shri Afaq Ahmad, Organiser Youth Majlis, U.P. In this meeting you disclosed that you had developed many contacts in Pakistan and that people there had given you enough money for the help of Muslims in Aligarh.

(b) You on 16-7-1971 along with Abdul Bari Qairanvi and Mohammad Obed were noticed criticising Government of India's policy towards Bangla Desh and accused Government of India and Indian Press of carrying on a false propaganda.

(c) You attended a meeting on 20-10-1971 held at your residence wherein Abdul Bari Qairanvi asked the volunteers to remain vigilant and preparC$1 in view of lndo-Pak armies facing each other to meet the situation which might result therefrom. . ... "

The Government, it appears, did not accord its approval of the petitioner's detention as reqliired by s. 3 ( 3) of the Act. According &o para 22 of the Writ Petition, the contents of which are not <:ontroverted, as expressly stated in para 12 of the counter affidavit, on June 26, 1972 at about 12 noon the following order was .served on the petitioner :-

"Sub : Release under Maintenance . of internal Security Act on 25-6-1972 at 23.50 hrs. under D.M.

Aligarh Order dated 25-6-1972.

You are hereby informed that you are released on 25-6-1972 at 23.50 hrs. vide D.M.

Aligarh Order dated 25-6-1972 on account of non-receipt of approval from State Government but you were detained in Jail as under trial under Rules 107/117, Cr. P.C. You may inform your relations or lawyer if you want to arrange your bail.

Sd/- Superintendent, Distt. Jail, Aligarh."

A fresh order of detention was. a!So passed on June 25, 1972.

This order was made by the Governor of U.P. under s. 3(1) of

the Act and was served on the petitioner on June 26, 1972 at about 3.30 p.m. It reads :

"Whereas the Governor of U ttar Pradesh is satisfied with respect to Sri Masood Alam son of late Sri Baboo Ayoob resident of Mohalla Bani Israilan, Aligarh City, that with a view to preventing him from acting in any manner prejudicial to the security of the State and the maintenance of public order, it is necessarv so to order:- NOW THEREFORE, in exercise of the powers conferred by sub-section ( l) of section 3 of the Maintenance of .Internal Security Act,. 1971 (no. 26 of 1971), the Governor is hereby pleased to direct that the said Sri Masood Alam shall be detained under subclause (ii) of clause (a) of sl!b-section ( l) of subsection ( 3) of the said Act in the District Jail, Aligarht in the custody of the Superintendent of the said Jail.

By order of the Governor.

Sd/-

R. K. KAUL Special Secretary".

On behalf of the petitioner both the aforsaid orders of detention are assailed before us.

The first contention pressed by Mr.

Bashir Ahmad, appearing for the. petitjpner relates to the earlier order of detention. He has tried to assail that order with the object of showing ma/a fides of the detaining authority in making the second order. In this connection it is noteworthy that according to the return of the '"state of Uttar Pradesh as averred in para 27(r) of the counter-affidavit of Shri R. K. Kaul, Special Secretary, "the petitioner was arrested on 15th June 1972 u~ section 107/117/151, Cr. P.C. and the order of detention was a:lsO' served on him by the District Magistrate on the same date. Orders for his release were issued by the District Magistrate under the Maintenance of Internal Security Act but he continned to be in

Jail under the above sections of the Cr. P.C." The order of release mentioned in this para has reference to the order dated

fone 25, 1972 when the petitioner was supposed to have been

releaed from his detention because of non-approval of his defeil" lion by the State Government.

Mr. Bashir AJ!mad the counsel for the detenu has contended that the grounds of detention dated•.

June 17, 1972 served on the petitioner under s. 8 of the Act only suggest a threat to the security of the State and the mainienance of public order and that this does not mean that the petitioner was likely to act in the near future in a marmer prejudicial to the security of State and maintenance of public order. This conten~

t.ion ignores para 3 of the grounds. in which it is clearly stated that the District Magistrate was satisfied that the petitioner was likely to act in a manner prejudicial to the secunty of India, security of the State and maintenance of public order and that with a view to preventing him from so acting, it was necessary to detain him.

The submission that the use of the word 'likely' in this para only brings the petitioner's case within the purview of the provisions of Chapter VIII (Security Proceedings) of the Criminal Procedure Code thereby justifying only proceedings under s. 107 of the Code and that an order of detention in such circumstances is an abuse and misuse of the provisions of the Act has only to be stated to be rejected. If. the grounds are relevant and germane to the object of the Act then merely because the objectionable activities covered thereby also attract the provisions of Ch. VIII, Cr. P.C. the preventive detention cann.ot for that reason alone be considered to be mala fide provided the authority concerned is satisfied of the necessity of the detention as contemplated l)y the Act : see Sahib Singh Duggal v. Union of lndia(1), Mo!tammad Salem Khan v.

C. C. Bose(') and Borjahan Gorey v.

The State of West Bengal(').

The jurisdiction of preventive detention sometimes described as jurisdiction of suspicion depends on subjective satisfaction of the detaining authority. It is designed to prevent the mischief from being committed by depriving its suspected author of the necessary facility for carrying out his nefarious purpose.

This jurisdiction is thus essentially different from that of judicial trials fer the commission of offences and also from preventive security proceedings in criminal courts. both of which proceed on obiective consideration of the necessary facts for judicial determination by courts of law and justice functioning according to the prescribed procedure. Merely because such jurisdiction of courts can also be validly invoked does not by itself exclude the jurisdiction of preventive detention under the Act. The earlier order. therefore, cannot be described to be either illegal or mala fide on this ground. Although the petitioner's present detention is founded on the order dated June 25. 1972 the earlier order was challenged with the sole object Of showing that the oresent detention is also mala fide because the authorifies are determined to keep the petitioner in custody irrespective of the existence or non-existence of valid grounds. We are not impressed by this submission and are unable to hold that the circumstances in which the earlier order was made in any way suggest ma/a [ides on the part ef the detaining authority in making the second order.

Regarding the second order also it has been suggested that there is no imminent likelihood of the petitioner acting in a prejudicial manner and that his detention is thus an abuse or misuse

(I) !1966] I S.C.R. 313.

(2) A.T, R. 1972 S.C. 1760.

(3) A.I.R. 1972 S.C. 2256.

of the power of detention conferred by the Act. The scheme of our Constitution with respect to the fundamental right of personal liberty and the protecnon guaranteed against arrest and detention of the individual is intended to be real and effective, says the counsel, and adds that preventive detention of a person for any reason short of imminent likelihood of his acting in a prejudicial manner must be considered to be an invasion of this right. Our constitution undoubtedly guarantees various freedoms and personal liberty to all persons in our Republic. But the constitutional guarantee of such freedoms and liberty is not meant to be abused and misused so as to endanger and threaten the very foundation of the pattern of our free society in which the guaranteed democratic freedoms and personal liberty are designed to grow and flourish.

The larger interests of our multireligious nation as a whole and the cause of preserving and securing to every person the guaranteed freedoms peremptorily demand reasonable restrictions on the prejudicial activities of individuals which undoubtedly jeopardise

the rightful freedoms of the rest of the society. These restrictions within the constitutional limits have to be truly effective. If the detaining authority is of opinion on grounds which are germane D and relevant, that it is necessary to detain a person from acting prejudicially as contemplated by s. 3 of the Act then it is not for this Court to consider objectively how imminent is the likelihood of the detenu indulging in these activities.

This submission is thus unaceeptable.

The next point urged is that the petitioner had been served with the order of detention dated June 25, 1972 when he was in jail and that such service is invalid rendering the petitioner's detention void. This submission is generally unacceptable. There is no legal bar in serving an order of detention on a person who is in jail custody if he is likely to be released soon thereafter and there is relevant material on which the deiruning authority is satisfied that if free, the person concerned is likely to indulge in activities prejudicial to the security of the State or maintenance of public order. The decision in Makhan Singh Tarsikka v. State of

Punjab(') does not lay down the broad proposition canvsed.

In that case which dealt with the Defence of India Rules it was observed that r. 30(1)(b) of these Rules postulates an order only where it is shown that but for the imposition of the detention, the person concerned would be able to carry out prejudicial activity of the character specified in r. 30(1). On plain construction of that sub-rule it was held that an order permitted by it could be served on a person who would be free otherwise to carry out his

prejudicial activities and such a freedom could not be predicated of Makhan Singh Tarsikka, petitioner in that case.

It is noteworthy that the Court after referring with approval to its earlier

(I) A.l.R. 1964 S.C. 1120.

decision in Rameshwar Shaw v. District Magistrate, Burdwan(') observed:

"'Besides when a person is in jail custody and criminal proceedings are pending against him, the appropriate authority may in a given case take the view that the criminal proceedings may end very soon and may terminate in his acquittal. In such a case it would be open to the appropriate authority to make an order of detention if the requisite conditions of the rule or the section are specified and served on the person concerned if and after he is acquitted in the said criminal proceedings".

No doubt, this decision does suggest that the order of detention can be served on the person concerned if and after he is acquitted in the said criminal proceedings but in our view merely because the person concerned has been served while in custody when it is expected that he would soon be released that service cannot invalidate the order of detention.

The real hurdle in making an order of detention against a person already in custody is based on the view that is futile to keep a person in dual custody under two different orders but this objection cannot hold good if the earlier custody is without doubt likely to cease very soon and the detention order is made merely with the object of rendering it operative when the previous custody is about to cease.

It has also been pointed out that the grounds relate to a period more than a year prior to the order of detention. This according to the submission also renders the order ma/a fide.

In our opinion, this contention is without merit. It has to be borne in mind that it is always the past conduct, activities or the antecedent history of a person which the detaining authority takes into account in malcing a detention order. No doubt the past conduct, activities or antecedent history should ordinarily be proximate in point of time and should have a rational connection with the conclusion that the detention of the person is necessary but it is for the detaining authority who has to arrive at a subjective satisfaction in considering the past activities and coming to his conclusion if on the the basis of those activities he is satisfied that the activities of the person concerned are such that he is likely to indulge in prejudicial activities necessitating his detention. As observed in Ujjagar

Singh v. State of Punjab (2) it is largely from prior events or past conduct and antecedent history of a person showing tendencies or inclinations of a person concerned that an inference can be drawn whether he is likely even in the future to act in a manner !lrejudicial to the public order. If the authority is satisfied that in view of the past conduct of the person there is need for deten-

(J) [1964) 4 S.C.R. 921.

(2) [1952] S.C.R. 7s;.

tion then it could not be said that the order of detention is not justified.

The next point raised on behalf of the petitioner is that the earlier order of detention was either revoked or had expired with the result that unless the present detention pursuant to the order dated June 25, 1972 is passed on fresh facts arising after the expiry or revocation of the earlier order it nrnst be held to be invalid.

Jn support of this submission reliance has been placed on s. 14 0f the Act which reads :

.. 1.\(1) Without prejudice to the provisions of section 21 of the General Clauses Act, 1897 a detention order may, at any time, be revoked or modified- ( a) notwithstanding that the order has been made by an officer mentioned in sub-section (2) of section 3 by the State Government to which that officer is subordinate or by the Central Government.

( b) notwithstanding that the order has been made by a State Government, by the Central Government.

(2) The revocation or expiry of a detention order shall not bar the making of a fresh detention order under section 3 against the same person in any case where fresh f1,1cts have arisen after the date of revocation or expiry on which the Central Government or a State Government or an officer, as the case may be, is satisfied that such an Qrder should be made".

Support has also been sought from Hadibandh11 Das v. The District _Magistrate, Cuttack(') which was a case under the Preven- F tive Detention Act (IV of 1950).

The language of s. 13(2) of that Act is identical with hat of s. 14(2) reproduced above.

This decision was followed in Kshetra Gogoi v. State of Assam(2 ) also a case under Act 4 of 1950. In our opinion, this submission does possess merit and deserves to be accepted. Section 14 speaks of revocation or expiry of a detention order.

The principle underlying this section has its roots in the vital importance attached to the fundamental right of personal liberty guaranteed by our Constitution. The Act fixes the maximum period of detention to be 12 months from the date of the detention with the proviso that. the appropriate Government can revoke or modify the detention order at any earlier time : s. 13. It is to effectuate this reS:- triction on the maximum period and to ensure that it is not rendered nugatory or ineffective by resorting to the camouflage of

(I) [1%9] I S.C.R. 227.

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making a fresh order operative soon after the expiry of the periodc . of detention, as also to minimise resort to detention orders that s. 14 restricts the detention of a person on given set of facts to the original order and does not permit a fresl:l order to be made on. the same grounds which were in existence when the original order was made.

The power of preventive detention being an extra-· ordinary power intended to be exercised only in extraordinary . emergent circumstances the legislative scheme of ss. 13 and 14 of the Act suggests that the detaining authority is expected to know and to take into account all the existing grounds and make one order of detention which must not go beyond the maximull!l period fixed. In the present case it is not urged and indeed it isnot possible to urge that after the actual expiry of the original order of detention made by the District Magistrate which could only last for 12 days in the absence of its approval by the State- Government, any fresh facts could arise for sustaining the fresh order of detention. The submission on behalf of the State that the petitioner's activities are so highly communal and prone to encourage violent communal activities that it was considered. abso!lltely necessary to detain him in the interest of security of the.

State and maintenance of public order cannot prevail in face of the statutory restrictions and the guaranteed constitutional .right which is available to all persons. The rule of law reigns supremein this' Republic and no person on the soil of free India can be deprived of his personal liberty without the authority of law. As observed by this Court in Manu Bhusha11 Roy Prodha11 v. State of West Bengal(~) :

/ " .... The Act encroaches on the highly cherished right of personal liberty by conferring on the executive extraordinary power to detain persons without trial by ' ' coming to subjective decisions. The detaining authority in exercising this power must act strictly within the limitations this Act places on its power so that the guarantet: of personal liberty is not imperilled beyond what the Constitution and the law strictly provide. The limited right of redress conferred on the detenu under the law deserves to be construed with permissible liberality with the provisions of the Act and the constitutional guarantee."

On behalf of the respondent reference was also made to Sampaf Prakash v. State of Jammu & Kashmir (2 ) dealing with detention tinder J. & K. Preventive Detention Act (J. & K. Act 13 of 1964). Though in that Act there is a similar provision [s. 14-

(2) of that Act] in the judgment there is no reference to that section and it appears that no question similar to the one raised

(!) W.I. No. 252of1972 decided on October 31, 1972.

:278 'SUPREME COURT ll.EPOll.TS [1973] 3 s.c.a..

before us was urged and adjudicated upon there. We have, there A fore, no option but to order the petitioner's release which we did on December 20, 1972. As the detention order is being quashed on this ground we do not consider it necessary to express any opinion on the point that the detention order is vitiated because some of the grounds on which it is based, though not of unessen .tial nature, are vague.

Writ Petition No. 470 of 1972 :

Abdul Bari Kairanvi, petitioner in this writ petition, an associate of Masood Alam (Petitioner in W.P. No. 469 of 1972) both in the Youth Majlis and Muslim Majlis, was arrested on June 3, 1972 when he had organised in the City of Aligarh a procession in defiance of the order issued under s. 144, Cr. P.C. The general atmosphere of communal tension prevailing in that city ultimately culminated in the unfortunate communal riots on June 5, 1972.

The arrest was made unlier s. 188, l.P.C. and he was actually produced before the Additional District Magistrate on the very day of his arrest. On June 14, 1972 an order was made by the District Magistrate for the petitioner's detention under s. 3 ( f) (a)·

( i) and (ii) of the Act as amended by the Defence of India Act 42 of 1971. The grounds of his detention which were duly serv ed on him under s. 8 of the Act read as under :-

"!. That you are a member of the Executive of the Muslim Majlis. You are also an active member of Youth Majlis.

The Youth Majlis is being trained in the use of lathis, swords and knives as a fully militant organisation. You contribute and raise funds to illegally' arm the organisation. You visited Pakistan in November, 1971 for arranging the transfer of funds collected by Shri Masood Alam in Pakistan to A!igarh for use by Youth Majlis for training volunteers in the use of arms and knives etc.

You collected Rs. 700 for Youth Majlis from Varanasi, Pratapgarh and other places.

2. That you have extra territorial loyalties and are therefore a threat to security of India which is evident from the following instances:-

(a) That you on 1-4-1971 listened to Pakistan Radio and propagated Pak policy towards Bangla Desh among the Muslims.

You also propagated that India engineered the trouble.

(b) On 19-10-71 you participated in private meeting of commanders of Youth Majlis wherein you delivered a shon speech that India and Pakistan army were facing each other on the border and

' ,

there was a great panic on the Indian side of the border. You also advised the commanders of the Youth Majlis to remain vigilant and prepared for any situation that might develop as a result of clash between India and Pakistan forces. You criticised India for allegedly meddling into the private affairs of Pakistan. You

pointed out to them that Bengalees had been taught a lesson and the Hindus in India would also share a similar fate if Pakistan forces invaded.

You accused police and army of favouring Hindus and stressed upon the commanders of Youth Majlis to remam prepared.

( c) That you visited Pakistan in November, 1971 and returned from there on 30-11-1971 and' propagated that concentration of Pak army in Lahore sector was quite heavy and that real war would be fought in the sector.

(d) That you on 10-12-1971 briefed volunteers of'

Y9uth Majlis that local Jan Sangh workers weretrying to tease the Muslims by making unbecoming remarks against Pakistan.

3. That you have been exciting communal feelings among the Muslims in India and contributing to the communal disturbances in the Aligarh City which ill' evident from the following instances :-

(a) That you on 15-10-71 attended the Executive Committee meeting of Youth Majlis at Jama Masjid Upor Kot, Aligarh where you demanded that A.M.U. (Amendment) Bill should guarantee minority character of the University.

(b) That you on 10-3-1972 in your speech in a gathering of about one thousand Muslims at Jama Masjid in Upor Kot Aligarh City alleged that the enemies of Islam had a tradition to make efforts to wipe out Islamic religion and culture and at the present time also these enemies of Islam were trying to become aggressive.

You warned that in case the Muslims culture was Wiped out the Muslims will also be exterminated. You alleged that there was systematic attempt to abolish Urdu.

You exhorted the Muslims to be united and firm.

(c) That on 19-5-1972 after a meting at Jama Masjid Upor Kot, Aligarh you distributed a

'280

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pamphlet captioned "Muslim University ki mot ka Akhiri marhela. Ek Jan aur ek Awazbankar usko bachyiye" issued in your name and the names of Dr. Ahsan Ahmad and others. In the meeting in your short speech you pointed out that action, if delayed, would fail to achieve any result even by any amount of sacrifice of bloodshed.

You also remarked "Hamari kom hamesha se talwar key saye me pali hai" and as such no sacrifice was too grave for this occasion. ( d) That on 25-5-72 along with Dr. Ahsan Ahmad

attended a meeting of about 25 persons at the residence of Abdul Jalil where Dr.· Ahsan Ahmad briefed the participants on the agitation, formation of action Committee and collec- tion of funds in connection with the agitation against A.M.U. (Amendment) Bill, 1972. 4. In view of . the above-mentioned grounds I am satisfied that you are likely to act in a manner prejudicial to the security of India, security of State and maintenance of public order and with a view to preventing you from acting in a manner prejudicial to the security - of India, security of State and maintenance of public order it is necessary to detain you." His detention was duly reported to the State Government on June 18, 1972 and the State Government gave its approval on June 25, 1972 which was duly reported to the Government of India on June 29, 1972. His case was sent to the Advisory Board on July 13, 1972 and the Board conveyed its decision on August 18/21,

1972. His detention was confirmed on August 30, 1972. The petitioner had made his representation on July 15/24, 1972 -through the District Magistrate who forwarded it to the Govern: ment on July 29, 1972. The Government considered the repre- .

sentation on August 2; 1972 and the decision of the Government was duly conveyed to rum on August 5, 1972.

According to the petitioner's counsel Mr. Bashir Ahmed, the grounds on which the petitioner's detention has been ordered are 'irrelevant and, therefore, the detention is void. Emphasis is laid on the submission that the Youth Majlis and the Muslim Majlis are both organisations which do not advocate communal conflict or disharmony and the object of both of them is social service of the society. It is added that the Youth Majlis is a purely social organisation which is dedicated to the cause of the oppressed and the depressed and its membership is open to all persons irrespective of their community or religious cree<l.

In support of this

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A contention the counsel sought to refer to the printed constiluton of the organisation in Urdu which was not permfi1lted, not bemg on the record and not being relevant to the limited scope of enquiry in the present proceedings.

In our opinion none of the grounds on which the petitioner's .detention has been ordered can be said to be irrelevant. The facts stated in the grounds have to n be accepted as correct and it is not open to this Court to enquire • into' their truth like a court of appeal. Writ proceedings cannot be treated as an appeal in disguise. And then it has to be borne in mind that it was in November, 1971 that the petitioner is said to have gone to Pakistan (it is asserted in the grounds that he visited Pakistan in November, 1971, and collected funds in that C country for the purpose of carrying on the activities of the Youth Majlis in India), and he returned on November 30, 1971, just three , days before the actual war between India and Pakistan began.

Judicial notice under s. 57 of the Indian Evidence Act can be taken of the fact that the war between India and Pakistan actually began on December 3, 1971 lasting for about a fortnight.

The petitioner has admitted his visit to Pakistan in November, D 1971, the reason given by him being that he had gone there to see his ailing relations without mentioning either their names and\ addresses or the relationship.

According to the grounds, the petitioner has extra-territorial loyalties manifested by his anti- Indian and pro-Pakistan activities and also by inciting communal feelings amongst the Muslims during the period of tension E and conflict between India and Pakistan on the question of Bangla Desh.

The grounds further disclose, inter alia, (i) that the Youth .Majlis engages in training Muslims in India in the use of Jathis, swords and knives, and (ii) that the petitioner advised the commanders of the Youth Majlis in October, 1971 to be vigilant and remain prepared for any situation that might develop as a result 'F of clash between India and Pakistan forces, at the same time . suggesting invasion of India by Pakistan forces. An atteinp( has undoubtedly been made on behalf of the petitioner to show that the grounds on which the District Magistrate felt satisfied are non- existent but as observed earlier it is not open to this Court to review and over-ride the subjective opinion of the District Magistrate by going into the truth or otherwise of the facts acceoted by G him .. The facts contained in the grounds reproduced earlier seem to us to be clearly relevant for the pur_pose of forming an opinion that thev endanger both maintenance of oublic order and security of the State. It is undeniable that hostility amongst the citizens , founded on differences in re!igious .faiths is a deadly poison for healthy existence and progress of a secular, egalitarian society like JI ours. And when violence is advocated ind iniected in such hostility, it is idle to suggest that such activities cannot fall within the i_nischief designed to be prevented by the Act. In our country patriotism is not communal or religious and the Constitution

guarantees equal freedom to all religious faiths without recognis ing the superior status of any particular religion. There is absolutely no discrimination on the basis of religion and indeed in this Repubtlic every citizen irrespective of his religious faith can aspire to the highest office, if otherwise qualified. Here people professing numerous different religious faiths and ideologies live in perfect harmony with equal rights guaranteed by the Constitution. Articles 25 to 281 and Art. 30 in Part III accord to the Right to Freedom of Religion and the Right of Minorities to Establish and Administer Educational Institutions, the status of fundamental rights which can be enforced in the highest courts in this country by appropriate means. Whenever, therefore, an attempt is made to disturb the peaceful, tolerant and harmonious life of the society by appealing to or inciting and in.flaming religious passions and prejudices and bly fanning morbid fanaticism it must necessarily tend to disturb the even tempo of the life of the society as a whole thereby prejudicially threateninJ!. the maintenance of public order. When such a climate in communal disharmony is engendered for stimulating anti-Indian and pro-Pakistan feelings during the period of extreme tension between the two countries then it must also tend to seriously prejudice the maintenance of security of the State.

Our attention has 11, een drawn to the pamphlet Annexure A to the writ petition for the purpose of fortifying the argument thl!t the agitation with respect to othe Muslim University a!t Aligarh in which the petitioner had undeniably taken part was a non-violent movement. We do not think it is possible on 'the basis of this document to decline to accept the opinion of the District Magistrate who had sufficient material about the activities of the petitioner and of the organisations to which he himself professes to belong. This pamphlet which merely announced a meeting to be held on May 22, 1972 is, therefore, of little consequence.

The contention that the petitioner is a Muslim theologist highly qualified in Muslim theology, assuming it to be true, is also unhelpfol to the petitioner as the impugned order is J!lade on the basis of his activities which are considered clearly prejudicial to the maintenance of pub[ic order and security of State, His learning as a 'theologist is wholly immaterial. It neither places him above the law nor does it displace or detract from the opinion of the District Magistrate with respect to his activities and their effect.

On the contrary it has to be borne in mind that when a person professing to be learned in religious theology encourages defiance of law in the name of religion then ignorant and credulous people are more likely 'lO be misled and swayed by religious passions and sentiments.

Such activities naturally have greater potentiality for prejµdicially threatening the maintenance of puJ:>lic order.

According to the writ petition the petitioner is an active member of the Muslim Majlis and also a member of the Youth. Majlis.

He was arrested while defying the order promulgated under s. 144, Cr. P.C. This had been preceded by the various prejudicial activities in the month of May, 1972 as stated in the gr2unds of detention and was followed two days later Ly communal clashes. This agitation was earr~ on in connection with a bill relating to the Aligarh Muslim University ignoring thllt the legal position in respect of ithis University had authoritatively settled by this Court as far back as October, 1967 in S. Azeez Basha v. Union of lndia(1').

These activities clearly bring the petitioner's case within s. 3 of rhe Act, being calculated to incite communal violence.

It has then been contended ithat some of the grounds of deten- 1ion conveyed to the petitioner are vague and, therefore, the order of detention is liable to be struck down as invalid. Reference has in this connection been made to 1he last two Jines of ground no. 1 relating to the collection of Rs. 700/- for Youth Majlis and to grounds nos. 2 and 3. The argument is wholly misconceived. If 1he last two lines are read, as they should be, along with the remaining contell'ls of ground no. 1 it cannot be said that the petitioner was unable to tender his explanation with respect to the allegation contained therein. Quite clearly, the exact poin~ of time and the people from whom small amounts were collected could not possibly be stated with precision. Grounds nos. 2 and 3, as is clear, contain precise details in the various clauses enumerated therein.

According to ground no. 2 the petitioner has extra-territorial loyalties and, therefore, he is a threat to security of India and this conclusion is arrived at on the basis of the intances stated in els. (a) to ( d) which are precise and definite.

Similarly, ground no. 3 says that the petitioner has been exciting communal feelings among the Muslims in India and contributing to communal disturbancer in Aligarh city and this conclusicin is based on instances stated in els. (a) to (d) which are precise and definite. The instances under both these grounds are relevant and germaneJo the object which is sought to be achieved by s. 3 of the Act for the purpose of detaining persons who. are likely to aClt in a mannr prejudicial to the security of the State or maintenance of public order. The

(I) [1068) 1 S.C.R. 833.

~-L796Sup.C.I./73

decisions relied upon on behalf of the petitioner reported in

Dwarlca Dass Bhatia v. The State of Jammu & Kashmir(') and Pushkar Mukherjee & Ors. v. The State of West Bengal(') are, on the facts and circumstances of this case, of no assistance to him.

This writ petition accordingly fails and is dismissed.

S.B.W.

Petition dismissed.

(I) [1956] S.C.R. 948. (2l f1969J 2 s.c.R. 635.

MASOOD ALAM ETC

UNION OF INDIA & ORS

January I I, 1973

I. D. DUA

Internal Security Act, 1971

Section 3(1)

Section 14(2)

June 15. 1972

section 3(l)(a)(i)

sections

107

s. 3(3)

s. 14(2)

ss. 13 and 14

[1969] 3 S. C. R. 574

Ce of Internal Security Act

Rameshwar

(1964] 4 S.C.R. 921

[1970] 2 S.C.R. 517

Article 32

Constitution of India

Bashir Ahmadi

K. L. Hathi

Manzar VI-Islam

P. C. Kapur

B. D. Sharma

R. N. Sachthey

D. P. Uniya/

P. Rana

DuA

Art. 32

Masood Alam

Masood Alam

June 15, 1972

June 14, 1972

s. 3(1)(a)(i)

Security Act, 1971

June 17, 1972

s. 8

Government of India

India

Aligarh

Varanasi

Afaq Ahmed

Allahabad

Hanif

Pakistan

Afaq Ahmad

U.P.

Abdul Bari Qairanvi

Mohammad Obed

Bangla Desh

s. 3

s. 3(1)

U ttar Pradesh

Baboo Ayoob

Aligarh City

section 3

Internal Security Act

R. K. KAUL

Bashir Ahmad

state of Uttar Pradesh

R. K. Kaul

section 107

Bashir AJ!mad

s. 8

s. 107

June 25. 1972

s. 3

June 25, 1972

Makhan Singh Tarsikka

[1964) 4 S.C.R. 921

s. 14

section 21

General Clauses Act, 1897

section 3

Central Government

section 3

s. 13(2)

s. 14(2)

Section 14

s. 13

s. 14

ss. 13 and 14

Preventive Detention Act

s. 14

October 31, 1972

December 20, 1972

Abdul Bari Kairanvi

s. 144

June 5, 1972

s. 188

s. 3

s. 8

A!igarh

Pratapgarh

Indian

Bengalees

Lahore

Ahsan Ahmad

Abdul Jalil

June 18, 1972

June 29, 1972

July 13, 1972

August 18/21,

1972

August 30, 1972

July 15/24, 1972

July 29, 1972

August 2; 1972

August 5, 1972

Bashir Ahmed

November 30, 1971

s. 57

Indian Evidence Act

December 3, 1971

Articles 25 to 281

Art. 30

May 22, 1972

s. 144

Aligarh Muslim University

s. 3

Aligarh city

s. 3


MUNICIPAL CORPORATION OF GREATER BOMBAY

THE B.E.S.T. WORKERS' UNION

January 12, 1973 {A. ALAGIRISWAMI, I. D. DuA AND C. A. VAIDIALINGAM, JJ.]

Bombay Industrial Relations Act, 1946, s. 78(l)(d) (i)-Scope of.

The appellant, the Mu:nicipal Corporation of Greater Bombay, csta blisbed the Jlombay Electric Supply and Transport Undertaking for the purpose of providing and operating motor transport and supplying elec tricity to the consumers in the city of Bombay.

Workman Shri Naik, empk>yed as Assistant Fitter in the Transporta tio.n Engineering Department at the Appellant's Workshop and another employee employed under the Appellant as a mechanic were found by the S. I. of Police with gunny bags in their hands and each bag contained 22 brass bearings. On investigation it was found that Naik was an employee u:nder the Appellant and that the brass beatings had been removed from the Appellant's Workshops with the help and C-O operation of the mechanic.

A complaint of theft against the two workmen was launched.

An inquiry was held by an officer of the appellant and after evidence by the police officers and others, the Enquiry Officer found Shri Naik guilty and an order of dismissal was passed on February 11, 1970.

ApPeals to the Executive Engineer and Assistant General Manager of the appellant were all dismissed.

Naik and the mcchan.ic thereafter, filed applications before the 5th Labour Court at Bombay challenging the order of dismissal on various grounds. The Labour Court, after CCl!Sidering all the facts and evidence held that as the orders of dismissal were not passed within x months of the misconduct coming to the notice of the employer, they were illegal and have to be set aside under s. 78(1)(d)(i) of the Act. The Labour Court further ordered the appellant to pay each of the workmen his back wages from the date of dismissal till the date of order and also in addition to pay compensation of Rs. 1500/-.

The main point that arose for ca.nsideration was the interpretation of the provisions of s. 78(1)(d) of the Act etc.

Allowing the appeal, Held: (i) The word "shall" in s. 78(1) should not be stricUy construed and when the relevant provisions are read 'in the context in which they appear, it cannot be doubted that the Labour Court will have to consider the circumstances of a particular case and the nature of the misconduct and also the nature of con1ravcntion of any provi sions of law or standing order. The fact that s. 78(1) of the Act has conferred certain powers on the LabQur Court does not mean that the Labour Court must necessarily and under all circumstances grant the reliefs which it has the power to grant; It is well established proposition that the power to grant certain reliefs includes the power bf refilling the telief. If an employer in a palticular case has passed an order of punishment beyond the period of six montha and it it . is found that he has no satisfactory exp!Ol!Qtion for the delay, the Labour Court may be justified in straightaway settinv; aside the orders

on the ground that thev have been passed beyond the period of six months.

If, on the other hand, as in the present ca~, an employer has been vigilant in initiating disciplinary proceed!"gs an.d the Labour Court is satisfied about the reasons for the delay in passmg the ordeill

of punishment, the Labour Court is not justifu:d in setting aside the orders solely on the ground that.the period of six months had expired. [296B-H; 297A-C, E-Hl \ii) Provisions contained in s. 78(1)(d)(i) are not mandatory. but only directory. Therefore, the interpretation based by the Labour Court on s. 78(1)(d)(i) is erroneous. Accordingly, the two orders granting reliefs to the workmen are set aside. [298D-E; 302B]

Raipur Co-operative Centrt.J Bcu1k Ltd. am! Anr. v. StaJe Industrial Court, llldore & Ors., [1963] I L.L.J. 790, M/is. Chotabhai Jethabhai Patel & Co. v. The Industrial Cow~. Nagpur & Ors.,

A., J.R. 1972 S.C. 1268, Jbrah; nz Abbobaker &: Anr. v. Custodian-General of Evacuee Property, [1962) S.C.R. 696, State of U.P. & Drs. v.

Baburam Upc.dhya, [1961] 2 S.C.R. 679, Rmrington Rand of India Ltd. v. The Workmen, [196&] I S.C.R. 164 and Driscoll v. Church Commissioner for England, [1957!] I Q.B. 330, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1774 & 1775 of 1971.

F. S. Nadman, Addi. Solicitor-General of India, Y. S. Chitale, D D. C. Shroff. 0. C. Mathur, Bhuvanesh Kumari and Ravinder Narain, for the appellant.

S. V. Gupte, S. B. Naik and K. Rajendra Choudhury, for the respondent.

The Judgment of the Court was delivered by

VAID!ALINGAM, J.-In these two appeals, by special leave the common question that arises for coosideration is the proper interpretation to be placed on section 78 (1 )(D) of the Bombay Industrial Relations Act 1946 (Bombay Act No. XI of 1947) hereinafter referred to as the Act.

The appellant in both the appeals, the Municipal Corporation of Greater Bombay, is a bOOy corporate coostituted under the Bombay Municipal Corporation Act 1888. For the purposes of providing and operating motor transport and for supplying electricity to the consumers in the city d Bombay, the appellant has established under the provisioos of the Bombay Municipal Corporation Act, an undertaking called the Bombay Electric Supply atid Transport Undertaking. The affairs of the said Undertaking 1!fe managed by a committee called the Bombay Electric Supply and Transport Committee, as per the provisioos of the Bombay Municipal Corporation Act. The workman, Shri U. R. Naik, was employed as Assistant Fitter in the Transportation Engineering Department at Dadar workshop of the appellant. - Similarly, Shri E. Menezes was employed under the appellant -as Line Mechanic.

It is comm.on ground that on July 18, 1969, when the sub-inspector

MUNIC. CORP. v. B.E.S.T. WORKERS (Vaidialingam, J.) 287

of police attached to the V.P. Road Police Station, was on petrol duty with his other staff, at about 9.30 P.M., he crune across Shri U.R Naik along with another person, Kundaikar, and found each of them carrying a gunny bag in their hands. As the bags appeared to be rather very heavy, the movement of the said persons arose the suspicion of the police officials, who stopped the said persons and searched the bags. On a search of the bags, it was found that each bag contained 22 brass bearings. As Shri U. R. Naik and his companion, Kundaikar, were not able to offer any satisfactory explanation as to how they crune to be in possession of the articles found in the bags,_ they were taken into custody .. On further investigation and from the statement given by Shri Naik, it was found that the latter was an employee under the appellant as Assistant Fitter and thafthe birass bearings found in h~ possession had been removed from the appellant's workshop with the active help and cooperation of another employee, E. Menezes, who was at the material time employed under the appellant asa Line Mechanic.

In consequence, Shri E. Menezes was also arrested shortly thereafter. After further enquiries, the brass bearings were identified by the concerned officers as properties belonging to the appellant. Ultimately on July 20, 1969, the appellant lodged a complained o{ theft against the two workmen, U. R. Naik and E. Menezes.

The appellant also charge-sheeted the two workmen on 18 / 19th August, 1969. Shri U. R. Naik was charge-sheeted under Standing Order 20(C) for 'fraud or dishonesty in connection with the business of the Undertaking'. Shri E. Menezes was chargesheeted under Standing Order 20(C) and Standing Order 20(1) for having committed an act 'subversive of discipline'.

An enquiry was conducted by Shri Talpade, Assistant Labour Officer (Transportation) of the appellant. At first it was a common enquiry against both the workmen in which the evidence of the police officers and certain officers of the appellant were examined. Later on, the enquiry was separated against each employee and further witnesses, both on behalf of the appellant as well as the workmen concerned, were examined. The Enquiry Officer found Shri Naik guilty of the offence with whiCh he was charged; and it was found that the offence proved against this workman was of a very grave and serious nature ailld as such the workman was not a fit person to be retained in service.

On this finding, n order dismissing Shri Naik, Assistant Fitter, from the servi~ of the appellaJ!t was passed on February 11, 1970.

An appeal by Shri Naik to the Executive Engineer and a further appeal to the Assistnt General Manager were all dismissed. Similarly, Shri E. Menezes was also found gt1ilty of tlie offences with which he was charged. It was further found that as the offences proved against the workman were of a grave and serious nature, he was not a fit person to be retained

in the services of the appellant. Accordingly, an order dismissing

Shri E. Menezes from service was passed on March 18, 1970. The appeals filed by this workman to the Exe<; utive Engineer and the A>sistant General Manager proved of no avail.

Shri Naik sent to the appellant an approach notice, as required by the Act, on June 6, 1970, but without any avail.

Similarly,.

Shri Menezes also sent an approach notice on July 31, 1970, but without any avail. Shri Naik filed application No. 553 of 1970 before the Fifth Labour Court at Bombay challenging the order of the aope!lant dismissing him from service on various grounds.

He attacked also the Domestic Enquiry that was held, as illegal and improper and the finding recorded therein as perverse.

He prayed for setting aside the order dated February 11, 1970, and for being reinstated in service with full back wages.

Shri E.

Menezes filed application No. 554 of 1970 tefore the same court praying for similar reliefs in respect of the order of dismissal passed ugainst him on March 18, 1970. He also attacked the order and the enquiry proceedings on the grounds relied on by Shri Naik.

The two applications were filed under section 78 and 79 of the Act.

Both the applications were heard together by the Labour Court.

Evidence also was adduced by the appellant justifying the action taken against the two workmen.

One of the grounds cf. attack against the orders of dismissal was that they were illegal and void, as they have been passed for fault or mis-conduct committed l)y the employees, which came to the notice of rthe employer more than six months prior to the date of the orders. To meet this contention, the appellant adduced evidence before the Labour Court explaining the circumstances that lead to the orders of dismissal being passed beyond the period of six months. The evidence was to the effect that though the enquiry proceedings had commenced within a short time, nevertheless they had to be postponed from time to time because the Union representing the workmen was not ready on certain days and also because of the postpone ment of the enquiry due to the sickness of the employees concern ed. Another reason given by the appellant was that the enquiry had to be postponed from time to time as the sub.inspector of police, who investigated the complailllt of theft, was not available for giving evidence.

The Labour Court rejected almost all the contentions on facts raised by the workmen regarding the legality and propriety of the enquiry proceedings. The findings of the Labour Court in this regard are ::-

That the enquiry has been conducted by a compepetent authority and thi!t the workmen were given full

MUNIC. CORP. v. B.B.S.T. WORKERS (Vaidialingam, J.) 28&

and adequate opportunity to .place their evidence and to examine witnesses on their behalf. The Enquiry Officer was justified from the evidence on record in coming to the conclusion that the workmen are guilty of mis-conduct under Standing Order No. 20( c). The findings recorded by the domestic tribunal are based on the evidence on record and that the conclusions arrived at are just, legal and proper. The criticism of the Union that the finding arrived at by the Domestic Tribunal was ]2erverse has to be rejected. The two workmen haye failed to establish any case under section 78(1 )(A) (a)(i) of the .A.cJ. ·

Regarding the contention raised by tlie Union on behalf of the workmen that the orders of dismissal are illegal, as having been passed after six months from the date of , the notice of the misconduct, the Labour Court held that the provisions of section 78(l)(D) are mandatory and that the time limi.t of six months D specified in section 78(l)(D)(i) of .the Act cannot be enl.arged by the Labour Court .. The Labour Coui:, t found support for this view in the Division Bench judgment of the Madhya Pradesh High Court in Raipur Cooperative Central Bank, Ltd.; and another

v. State Industrial Court, Indore and others('). It was pressed by the appellant before the Labour Court that the delay in passing

E the orders of dismissal was caused due to the adjournments b, eing granted to the Union because of the illness of the workmen concerned or due to the inability, for other reasons, of the workmen to be present. Another reason given by the appellant .was that the sub-inspector of police, who investigated the offence of theft, was not available for some time to give evidence before the Enquiry Officer. In view of these circumstances, the plea of the F appellant was that the relevant provisions will have IQ be construed not as mandatory but as only enabling and discretionary powers of the Labo.ur Court which have to be exercised having due regard to all the attendant circumstances. The Labour Court in coni dering this plea of the appi; llant held that the delay in passing the

G orders was caused in view of the circumstances relied on the management; and as the delay had been caused due to circµmstances beyond the control of the appellant, this was a fit case for condoning the delay if in Jaw the court had the rower to do so.

The Labour Court, however, held that the relevant provisions are mandatory and it hence has no power to condone the delay, e.ven though the circumstances warranted such condonation in this case.

H In this view, the Labour Court held that as the orders. of dismissal have not been passed within six months of the mis-conduct coming

(I) [1963] (t) L.L.J. 790.

to the notice of the employer, they are illegal and have to be set aside under section 78(l)(O)(i) of the Act.

The Labour Court then considered the relief to be granted to the two workmen. It held that as the offence for which tb, e two workmen were dismissed, was Qi a very serious nature entailing loss of confidence of the employer in. the employee, reinstatement should not be ordered.

The Labour Court, therefore, directed the appellant to pay each of the workmen his back wages from die date of dismissal till the date of the order and also, in addition. to pay compensation in the sum of Rs. 1,500/ -. In the result, the two applications jiled by the workmen were ordered grau\ing them relief of back wages and compensaltion. Civil Appeal No. 1774 of 1971 is ag_ainst the order passed in application No. 553 of 1.970 and Civil A:gpeal No. 1775 of 1971 is against the order passd in application No. 5.54 of 1970.

The learned Additional Solicitor General very strenuously attacked the reasoning of the Lab'our Court when rt held that the provisions of section 78(1)(0) are mandatory. His contentions in this regard are as follows :-

The subject matter and t)le extent of jurisdiction of the Labour Court are provided for under section 7 8 ( 1 )(A) of the Act. Section 78 ( 1 )(O) of the Act merely makes provisions regarding the powers which a Labour Court may exercise in determining the propriety or legality of orders under section 7 8 ( 1 )(A) of the Act.

The provisions of section 78(1)(0) are only enabling or discretionary; in that the Labour Court is not bound to exercise the powers contained in that section. They do 11101 compel a Labour Court to pass an order in terms of section 78(1) (0) (a) or (b), even though the _Labour Court is convinced that the reasons for the delay in passing the orr:Ier of dismissal are entirely beyond the control of a;11 employer. lnasm)lch as in this case the Labour Court has accepted the reasons given for the delay, the decision of the Labour Court setting aside the order of dismissal is illegal and not justified. The object of section 78 ( 1 )(O)(i) is only to emphasise that an employer should act diligently and with all possilile speed and without !aches in the matter of taking action for misconduct against an employee and passing suitable orders.

Mr. S. V. Gupte, learned counsel for the Union fil!Pported the view of the Labour Court and urged that the word, s of segtion 78(1)(0)(i) are clear and specific. The said sub-clause leaves no room for doubt. The sub-clause is quite clear that once it is found that the orders are passed by a management inore than six months from the .date when the fault or misconduct committed by an employee came to its notice, the action of the employer is illegal. Without anything more, the counsel urged when once it

MUNIC. CORP. v. B.E.S, T, WORKERS (Vaidialingam, !.) 291

is found, as in this case, !hat tl).e orders of dismissal were passed after six months, as provided in 'the said sub-clause, there is no other alternative for the Labour Court but to set aside the orders of dismissal. He further pointed out that the legislature has left no discretion in the Labour Court to embark upon an enquiry whether the management in a particular case had sufficient reasons for not complying with 'the mandatory period of six months, as provided in the said sub-clause; The only discretion left to the Latl:lur Court is regarding the nature of the relief to be granted either un'ler (a) or (b) of section 78(1)(0},

In order to appreciate the contentions of counsel on both sides, it is necessary to refer to the material provisions of the Act. The Act, as its preamble shows, has been enacted to provide for the regulation of the relations of employers and e!llployees in certain matters, to consolidate and amen4 the law relatini. to the settlement of industrial disputes and to provide for certain other purposes.

Chapter XII, in which the group of sections 77 to 86 occur, deals with Labour Courts, their territorial jurisdicti9n, their powers, commencement of proceedings before the said Courts, etc. Though we are concerned with the interpretation of section 78(1)(0), in order to appreciate the context in which it occurs, it is necessary to refer to the entire section. Section 7 8 runs as follows :- 78 (1) A. Labour Court shall have power to decide-

(a) disputes regarding-

(i) the propriety or legality of an order passed by an employer acting or purpoting to act under the standing . orders;

(ii) the application and interpretation of standing orders;

(iii) any change made by an employer or desired by an employee in respect cf an industrial matter specified in Schedule Ill (except item ( 5) thereof and matters arising out of such change;

(b) industrial disputes-

(i) referred to it under section 71 or 72;

(ii) in respect of which it is appointed as the arbitrator by a submission; ( c) whether a strike, lock-out, closure, stoppage or any change is illegal under this Act;

B. try offences punishable under this Act and where the payment of compensation on conviction for an offence is provided for, determine the compensation and order its payment;

C. require any employer to-

(a) withdraw any change which is held by it to be illegal, or withdraw temporarily any change the legality of -which is a matter of issue in y proceeding pending final decision, or .

(b) carry out any change provided st1ch change is a matter in issue in any proceeding before jt under this A.ct.

D. require an employer, where it finds that the ordeuif

dismissal, discharge, removal, retrenchment, termination of service 9r suspension of an employee made by the employer,- C ( i) was for fault or misconduct committed by the employee which came to the notice of. the employer more than six months prior to the date of such order_; or ·

(ii) was in contravention of any of the provisions oi.

I> any law, or of any standing order in force applicable to such employee, or

(iii) was otherwiSe improper or illegal,

(a) to reinstate the employee forthwith or by a date specified by it .in this behalf and pay him wages for the period of beginning on the date of such order of dismissal, discharge, reJllOVal, retrenchment, termination of service or suspension, as the case ay be, and ending on the date on which the Labour Court order& his reinstatement or on the date of .the reinstatement, whichevei: is later, or

(b) to pay to the employee in addition to wages being wages for the period commencing on the date of his dislnis.W, dischar~. removal,

retrenchment or termination of service and ending on the date on which the Laj>our Court orders such payment, such sum not exceeding four ihousand rupees by way of COQlilOllSlltion,. regard W to loss of ellt l!lld ilify fl..~ suitable emplo:yment thereafter.

(2) Every affeDQe pllll, isha\lle Mr tbis AJ; t, $hlill be triod. by -the <Aurt "oWll; li!l the lOl; ll. 1, irita of whose jurisdiction it was committed,

MUNIC. CORP. v. B.E.S.T. WORKERS (Vaidiali111am, J.) 293-

Explanation:-A dispute falling under clause (a) of paragraph A of sub-section ( 1 ) shall be deemed to have arisen if within the period prescribed under the proviso to sub-section ( 4) of section 42, no agreement is arrived at in respect of an order, matter or change referred to in the said proviso.

Clause (D) of section 78(1) was introdu11ed in the Act of' Maharashtra by Act 22 of 1965. The said amending Act introduced not only clause (D) btit also made changes in paragraphs.

(A) and (C) of section 78. The statement of objects and reasons to the amending Act shows that the additional provisions, which were sought to be incorporated . in the. Act, were made to enlarge the powers of the Labour Courts under section 78. It is further seen from the statement of objects and reasons that \he Labour Court was being empowered 'to require an employer to reinstate an employee with full back .wages and compensat!on not exceeding Rs. 2,500/-.... if the employee was dismissed, discharged, etc.'. It may be noted that in th\' amendment, as now finally made, under clause (b:) the maximum compensation has been fixed at Rs. 4,000/-. The statement of objects and reasons amply demonstrates that and by introducing paragraph (D) in section 78'(1}, the legislature was only seeking to arm the Laboµr Court with further and more effective powers to grant suitable relief.

A reading of section 78 as a whole leaves the impression in our minds that the legislature wanted the provisions to be a com• prehensive one. It .contains all the powers of the Labour Court in the matter of all disputes mentioned therein and it also gives jurisdiction to punish certain offences under the Act. The scheme of section 78 ( 1) appears to be that a Labour Court has power to decide all the disputes covered by paragraph (A). Paragraph ( B) gives the Labour Court power to try offences punishable under the Act and cognizance Of such offences can only be taken under section 82. Paragraph (C) and (D) set out what reliefs the Labour Courts are empowered to give including directions as may be found necessary in that behalf. Another provision, which G has to be taken note of, i$ section 73 of the Employees' State Insurance Act, 1948, whic4 is as follows :-

E, mployer not to dismiss or punish emol<>yee during . period of sickness, etc.-( l) No employer" sliaii dismiss, discharge, or reduce or otherwise punish an employee during the period the employee is in receipt of sickness bed or maternity benefit, nor shall he, except $8 provided undtr the regulations, dismiss, dg~ or reduce or otherwise punish aa employee during the period he is in receipt of disablement benefit for temporary disablement or is under medical treatment for sicknes.s or is absent from work as a result of illness duly certified in accordance with the regulations to arise out_ of the pregnancy or confinement rendering the employee unfit for work.

(2) No notice of dismissal or discharge or reduction given to an employee during the period specified in subsection ( 1 ) shall be valid or operative.

This provision clearly places an embargo upon the powers of an employer to dismiss, discharge or otherwise punish an employee in the circumstances mentioned therein. For example, if an employee is under medical treatment for sickness or is in receipt of sickness benefit or maternity benefit, no order of dismissal or punishment can be passed agains.t suc.!i an employee. That" means even if an employer intends to take disciplinary action for any misconduct, he cannot pass ay orders of punishm~_nt during the periods mentioned in the sectlon.

For instance, if an enquiry regarding the misconduct of an employee had been conducted and he had been found guilty even within the period of six months, as contemplated under section 78(1)(D)(i), and if the employee comes under the proteotion of section 73 of Employees' State Insurance Act, 1948, the employer can pass no orders of punishment. That means the employer will be placed in a dilemma. If he passes an order of dismissal in the circumstances mentioned under section 73 of the Employees' State Insurance Act, that order is invalid and inoperative. But if he postpones as hy is bound to do under section 73, and passes the order, after the employee ceases to be under any of the disabilities mentioned in the said section, six months from the date of the misconduct coming to the natice of the employer would have elapsed.

Jin such a case, the order will be struck down under section 78 ( 1) (D)(i) if the interpretation contended for by the Union is accepted. Therefore. it is necessary that these provisions will have to be read harmoniously so as to avoid a conflict between the two enactments.

1here can be no controversy that an employee i~ ntitled to a fair and reasonable op_portunity of pleading to the charge for \\:'.hich he may be tried by the Domestic Tribiunaj. He must have a right to ~-ross-examine the witnesses produced for the management and also to adduce evidence on his behalf.

It may be that on certain occasions, the employee himself may seek an adjournment or postponement of the enquiry, either on the ground of his personal incony:enience due to sickness or otherwise or due to jhe inabiJiity of his witnesses to be presont. .. Ii the employer without

any justification refuses such a reasonable request an_d proceeds with the enquiry, those proceedings will have to be set aside by

MUNIC. CORP. v. B.E.S.T. WORKERS (Vaidialingam, !.) 295

the Labour Court or the Industrial Tribunal concerned on the ground that there has been a violation of the priniples of tural justice; in that the workman )).ad no reasqnable opportunity to defend the charge against him. H the employer, 1!S he is ~Jund to do, grants a reasonable adjournment to enal?le the workm3111 o be present or to produce witnesses, it !llay be that in certain cases, at least by the time the enquiry is complete.and ordes passed, the period of six months would have elapsed. Does it mean tliat when orders of punis!unent for rniscQDduct 3!e passed by an employer after holding a proper and fair enqwry, those orders will have to be set aside, only on the ground that on the day when they were passed, the period of six month§ had already_ expired ? If the yiew of the Labour Court is correct, the position will be that even though very serious miscQllduct is held to be proved against an employee andJ.1e .q.ot deserve to be retained in service, nevertheless the order of dismissal will be §traightaway set aside on the sole ground that the period of six months. has. expired.

The employee will thim straightaway bet black into

D service, howsver undesirable he may be. Again an employee, knowing well that once orders are passed after the expiry of six. months, they will be straightawav set aside by the J., abour Court,

will attempt to protract the proceedings before the Enquiry Officer on some ground or other. Do all these things cond_uce to the maintaining of a proper relationship between an emp)oyer and an employee, as is envisaged under the Act ?' We have indicated broadly several aspects which have .to be borne in mind in considering the question. None of these matters have been either adverted to or taken into consideration by the La!Wur Court in . the present case.

The scheme of the Act has been considered by this Court in another context in M/s. Chhotabhai lethabhai Patel and Co., v.

F The Industrial Court Maharashtra, Nagpur Bench, Nagpur and I others (') and we do not propose to cover the ground over again, But it is to be emphasised that, as mentioned by us earlier, the scheme of section 78 (!) is that a Labour Court is to have power to decide all the disputes covered by paragraph (A). Paragraph (B), as pointed out, gives the Labour Court the power to try G offences punishable under the Act. Paraiµ-aphs (C) and (D) set

1 out the nature of reliefs which the Labour Courts are em~·

to grant including directions, as may be fo11111d necessary in that

alf. The material part of section 78(1)(D) is to be read as follows :-

"A Labour Court shali have power to require an employer, there it finds that the orders of dismissal. discharge, removal, retrenchment, termination of service or suspension of an employee made by the emp@yer, was

(I) A.I.R. 1972 S.C. 1268.

for fault or misconduct committed by .the employee which came to the notice of the employer more than six months prior to the date of such order; ....... .

(a) to reinstate the employee forthwith or by a date specified by it in this behalf and Qay him wages for the period beginning on the date of such order of dismissal, discharge, removal, retrenchment, termination of service or SUSJ?ension, as the case may be, and ending on the date on which the Labour Court, orders his re-instatement or on the date of his reinstatement, whichever is later, or

(b) to pay to the employee in.addition to wages being wages for the period commencing on. the date of his dismissal, discharge, removal, retrenchment or termination of service and ending on the date on which the Labour Court orders such payment, such sum not exceeding four thousand rupees by way of compensation, regard . being had to loss of employment and possibility of getting suitable employment thereafter".

Much emphasis has been laid by Mr. Gupte that the expression used iJn the opening words of section 78 (1) is 'shall' and that there is no indication in suli-clause (i) of clause (D) enabling a Labour Court to take into account any other extraneous matters.

According to the learned counsel the use of the expression •sblin'

coupled with the clear wording of sub-clause (i) of Clause (D), clearly shows that the provisions are mandatory and not directory.

It must be stated that a very superficial reading of sub-clause (i) of clause (D) may support the contention of Mr. Gupte .. But, in our opinion, that is not the way to interpret a provision in the statute. On the other hand, the relevant provisions will have to be construed in the context in which they appear and having due regard to the objects which are sought to served by the Act in question. It cannot be doubted that for the purpose oi. deciding whether reinstatement with back wages has to be ordered or whether payment of compensation, in addition to back wages, without reinstatement has to be ordered, the Labour Court will have to consider the circumstances of a particular case and the nature of the misconduct alleged on the part of the employee as also the nature of contravention of any provision of law or standing order, If the Labour Coutt was bound to take into account all these circumstances to consider what type of relief has to be granted, we fail to see why the Labour Court is not

MUNJC. CORP. v. B.E.S.T, WORKERS (Vaidialingam, ].) 297

entitled to consider the circwmtances which Jed t.he management to the passing of the orders more than six months prior to the misconduct coming to the notice of an employer. In our opinion,

it cmmot be the object of the Act that notwithstanding the fact that the wottman, woo has been found guilty in a proper domestic C>.t1quiry and panished for such misconduct, has to be given relief

either by way of reinstatement with back wages or compensation and back wages without reinstatement, when once he has shown that the order of punishment was passed beyond the period ol six months referred to in section 78(1) (D)(i). , Such a positian is not warranted by the statute. Nor will it be conducive to indusc trial peace and the cordial relationship that should exist between an employer and an employee.

It should not be missed 1that ¢be opening words of sectian 78 ( l ) are 'A Labour Court shall have power'. We have already pointed out that the effect of section 78 (1) is that the Labour Court shall have the power to decide the types of disputes mentioned therein and it has also the power to grant the reliefs referred to in paragraphs (C) and (D). That does not mean that when once the Labour Court finds that an order of punishment has been p8$Cd beyond the period of six months, it has to straightaway set aside that order irrespective of the reasons which caused the dei; ly in passing thase orders, The fact that the section has conferred certain powers, does not mean that the Labour Coyrt must of necessity and Under all circumstan~ grant the reliefs which it has the power to grant It is a well established proposition that

the power to grant a certain relief includes obviously the power of refusing that relief. Authority for this proposition is to be found in Ebrahim Abbobakar and Another v. Custodian General of Propertye). It may be that if an employer has passed an order of punishment beyond the period of six months and if it is found that he has no satisfactory explanation for the delay or if he has not n vigilant and active in initiating disciplinary action and passing suitable orders, the Labour Court may be justified in straightaway quashing the orders on the ground that they have been passed beyond the period of six months. - H, on the other hand, as in the case before us, an employer has been vigilant in G initiating disciplinary proceedings and has satjsfied the Labour Court about the reasons for the dlay jn passing the orders of

punishment, the Labour Court is not justified in setting aside the orders solely on the ground that the period of six months has expitcd. ·

H There is a very elaborate discussion by this Court in Tlze Stale of Uttar Pradesh and Others v. Babu Ram. U padhya(') regard ing the various princ1ple5 that have to borne In mind in dlcid-

(1) [1952) S.C.R. 696.

(2) [1961) 2 S.C.R. 679.

ing whether the use of the word 'shall' in a statute makes the provision mandatory or directory.

It has_ been emphasised that for

u~-certaining the real intention of the legislature the court, among other things, may consider the nature and the design of the statute, the consequences which would follow from con11truing it one way or other and whether the object of the legislation will be defeated or furthered by a particular construction. The question :whether

an award of an Industrail Tribunal ceases to be effective due to the .non-publication of the same by the appropriate Government within a period of thirty days from the date of its receipt under section 17 (I) of the Industrial Disputes Act, 194 7, has been considered by this Court in The Remington Rand of India Ltd v.

The workmen (') . Section 17 (! ) , omitting the unnecessary parts, reads as follows :-

" ..... _every a.rbitration award and every award of a Labour Comt, Tribunal or National Tribunal shall. within a period of thiny days from the date of its receipt by the appropriate Government, published. in such manner as the appropriate Government thinks fit". l t may be noted that the expression used is 'shall'. The question that arose for consideration before this Coun was whether the above provision was mandatory or directory.

This Court held that the provision as 'to time in the above section is merely directory and not mandatory, and that the limit of time has been fixed only as showing that the publication of the award ought not to be held up. It was further held that the publication of the award beyond the time mentioned in the section does not render the award invalid. The learned Solicitor invited our attention to the decision of the Coun of Appeal in .Driscoll v. Church Commissioners for England('). In that decision the Court had to construe section 84 of Law of Property Act 1925, which provided for the au!hority concerned on being satisfied about the circumstances mentioned in the said section, wholly or partially discharge or modify any restriction. The conferment of power on the authority was. in these terms :- ''The au tbority . - . . . . shall. . . . have power from time to time on the application of any person interested . . .... by order wholly or particularly to discharge. or modify any such restriction on ing satisfied .... ".

Though it was contended that if the necessary circwnstances envisaged by the section are established the authority has no alternative but to order modification, the Conn of Apoeal rejected that contention and held that the section does give a discretion to the Tribunal whether to modify the restritltion at all. This decision, in our opinion, is quite apposite to lhe matter on hand.

(I) [1968! I S.C.R. 164.

(2) [19S7Ji RB.330

MANAGEMENT HINDUSTAN STEEL v. WORKMEN (Dua, /.) 299

A Having due regard to the various aspects discussed above, we are of the opinion that the provisions contained in section 78 ( 1) (D) (i) are not mandatory but only directory.

The Labour Court will certainly have power to give relief to an.employee if an order of dismissal, etc. is passed by the employer after the expiry of six months from the date when the misconduct came to the notice of B the employer provided the employer has not been diligent in initiating disciplinary proceedings and if he is not able to offer satisfactory and adequate reasons for the delay in passing the! orders imposing punishment. Tue provision only emphasises that an employer should illl vigilant in taking disciplinary action against an employee for misconduct, once the said misconduct has come c to his notice and that, as far as possible, the proceedings including the final orders imposing punishment must all be completed within' a period of six months. This will be the normal rule. Such an interpretation does not impinge upon either the rights of 1111 em! ployer to initiate disciplinary action or the rights of an employee to have a proper and fair enquiry -conducted against him. If the!

D employer is able to satisfy a Tribunal about the reasons for not being able to pass the order imposing punishment within the period of six months, the Tribunal has no power to set aside the order merely on the ground that the period of six months has elapsed.

The Labour Court, in the case before us, has proceeded on the basis that the provision in section 78(t)(D)(i) is a period E of limitation prescribed the statute which cannot be extended or enlarged by the Court. This approach, in our opinion, is erroneous. There is no question of any period of limitation provided by the said provision; :nor does the question of extending or enlarging the period arises in this case. The whole question is whether the Labour Court on whom certain powers are conferred, F should exercise those powers or not. The power conferred on the Labour Court will have to be exercised having due regard to the various other circumstances; such as whether the employer has shown sufficient cause for not passing the orders within the period of six months. It is significant to note that there is no such provision in the Industrial Disputes Act. We are also informed that

 G the Act applies only to certain industries and all the other industries are governed by the Industrial Disputes Act. It will be anomalous to hold that an order passed under the Act beyond the period of six months is illegal and a similar order passed. after a proper and fair enquiry, though beyond six months, will be legal and valid u:nder the Industrial Disputes Act.

We have already referred to H section 73 of the Employees' State Insurance Act and the prohibition against an employer to pass orders of punishment under the circumstances mentioned therein. The interpretation placed by us on the releva:nt provision will steer clear of all anomalies and -L 796Sup.C. 1./73

will also be in accordance with the object and purpose of the Act which is to regulate the relationship of the employer and the employee. Before we close the discussion on this aspect, it is necessary to refer to the decision of the Madhya Pradesh High Court in Raipur Cooperative Central Bank, Ltd., and another v. State Industrial Court, Indore, and others('). We have already referred to the fact that the Labour Court has relied on this decision as supporting its view. The said High Court had to consider the provisions of sub-section (3) of section 16 of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, hereinafter referred to as the Berar Act.

The said Berar Act was enacted to make provision for the promotion of peaceful and amicable settlement of industrial disputes by conciliation and arbitration and for certain other purposes. Section 16 dealt with Reference of disputes to Labour Commissioner.

Sub-section (I) provided that powers can be conferred on a Labour Commissioner by the State Government by notification to decide an Industrial dispute etc. A right was conferred by sub-section (2) on an employee working in an industry, to which the notific:rtion applied, to invoke the jurisdiction of the Labour Commissioner for granting reinstate ment and payment of compensation. The said sub-section further provided that such an application for this purpose had to be made by an employee within six months from the date of dismissal, etc.

The material part of sub-section ( 3) was as follows ·:-

"On receipt of such application, if the Labour Commissioner after such enquiry as may be prescribed, finds that the dismissal, discharge, removal or suspension was in contravention of any of the provisions of this Act or in contravention of a standing order made or sanctioned under this Act or was for a fault or misconduct committed by the employee more than six months prior to the date of such dismissal, discharge, removal or suspension, he may direct. ..... ".

The reliefs that could be granted were substantially in the same terms as in paragraph (D) of the Aot, but in sub-section (3) of section 16 of the Berar Act there is no provision regarding the fault or misconduct comin~ to the notice of the employer, as in G clause (i) of paragraph (D) of the Act. From the judgment of the Madhya Pradesh High Court, we find that a workman was dismissed for misconduct on August 23, 1956. The allegations of misconduct related to emb\ezzlement of three sums of money.

The last item of embezzlement was on June 28, 1955,, Jhe Lbour

Commissioner, whose jurisdiction was invoked by the workman, ff took the view that the employer came to know of the misconduct only on April 9, 1956 when the auditor's report was received and hence the order of dismissal had been properly passed within six r

MUNIC. CORP, v. B.E.S.T. WORKERS (Vaidialingam, J.)30 I

months from the date of knowiedge. On a revision being filed by the workman the State Industrial Court reversed the decision of the Labour Commissioner and set aside the order of dismissal holding that the question of knowledge does . not come into the picture in view of the clear terms o' sub-section ( 3). The employer challenged this decision before the High Court under Articles 226 and 227 of the Constitution. The only contention that was raised before the High Court, as is seen from the judgment, was that section 16 ( 3) should be liberally construed by allowing the management to estabilish that they obtained knowledge of the embezzlement only within a period of six months prior to passing the order of dismissal.

The High Court rejected this contention on the ground that the statute is clear a.nd that an employer cannot be permitted to put forward their own inaction, in defence.

Another reason given by the High Court for rejecting this contention was that ithe statute has prescribed a period of limitation for determining the services of a delinquent employee as a measure of punishment and that such a period of limitation cannot be enlarged or extended biy a court. The contention that has been placed

before us on behalf of the appellant regarding the interpretation to be placed on clause (i) of paragraph (D) of the Act, was not pleaded before the High Court. In the Act, there is a clear provision regarding the misconduct coming to the notice of the employer. A similar provision was not in the Berar Act. The High Court has interpreted section 16 ( 3) in isolation without having due regard to the scheme of the Act and the context in which the said section occurs. The same principles laid down by us for interpreting section 78(1)(0) (i) of the Act should have been bbrne in mind in interpreting section 16 ( 3) of the Berar Act also.

For instance, in a particular case, an employer may be able to satisfy the Tribunal that he had been kept out of knowledge of the misconduct due to the fraud of the opposite party and, therefore, he came to know of the said misconduct only within a period of six months prior to tlte date of passing the order. S\milarly, an employer may also be able to satisfy the Tribunal about the reasons for the delay caused in passing the orders. These and similar ci.rcumstances ave not been considered by the High Court. The view of the High Court that the provision in section 16(3) is a period ?~ limitation is erroneous. As .we are of the opinion that the dec1s10n of the Madhya Pradesh High Court is erroneous, the support sought by the Labour Court on this decision is of no avail.

As pointed out by us earlier, the Latlur Court has upheld all the contetions oJ' the appellant on facts. In fact, as pointed out already, 11 has also held that if i'I had power to condone the delay for passing the orders of dismissal, it would have unhesitatingly ordered the same.

The appellant has properly explained the

delay as having been caused beyond its control. The only ground on which the two orders of dismissal were set aside was because of the fact that they have been passed beyond the period of six months. From what is stated above, it follows that the interpre tation placed by the Labour Court on section 78 ( 1 )(D) (i) is erroneous.

Accordingly, w_e set aside the two orders granting relief to the workmen concerned. The appeals are in consequence allowed. There will be no order as to costs.

S.N.C.

Appeals allowed.

MUNICIPAL CORPORATION OF GREATER BOMBAY

THE B.E.S.T. WORKERS' UNION

1973 {A. ALAGIRISWAMI

I. D. DuA

Bombay Industrial Relations Act, 1946

s. 78(l)(d)

Naik

February 11, 1970

5th Labour Court at Bombay

s. 78(1)(d)(i)

s. 78(1)(d)

s. 78(1)

s. 78(1)

s. 78(1)(d)(i)

s. 78(1)(d)(i)

[1961] 2 S.C.R. 679

F. S. Nadman

Y. S. Chitale

D. C. Shroff

. C. Mathur

Bhuvanesh Kumari

Ravinder Narain

S. V. Gupte

S. B. Naik

K. Rajendra Choudhury

VAID!ALINGAM

section 78

Bombay Industrial Relations Act 1946

Municipal Corporation of Greater Bombay

Bombay

U. R. Naik

Dadar

E. Menezes

U.R Naik

Kundaikar

July 20, 1969

18 / 19th August, 1969

Talpade

March 18, 1970

June 6, 1970

Menezes

July 31, 1970

Fifth Labour Court at Bombay

E.

Menezes

section 78 and 79

Vaidialingam

section 78(1 )(A)

section 78(l)(D)

section 78(l)(D)(i)

Madhya Pradesh High Court

section 78(l)(O)(i)

section 78(1)(0)

section 7

Section 78

section 7

section 78(1)(0)

section 78(1)

section 78

S. V. Gupte

Section 7

Schedule I

section 71

section 42

section 78(1)

section 78

section 78

section 78

section 78

section 78

section 82

section 73

State Insurance Act, 1948

section 78(1)(D)(i)

section 73

State Insurance Act, 1948

section 73

State Insurance Act

section 73

section 78

section 78

section 78(1)(D)

Gupte

section 78

section 78(1)

section 78

[1961) 2 S.C.R. 679

section 17

Industrial Disputes Act

Section 17

section 84

Law of Property Act 1925

section 78

section 78(t)(D)(i)

Industrial Disputes Act

Industrial Disputes Act

Industrial Disputes Act

section 73

State Insurance Act

section 16

Section 16

section 16

August 23, 1956

June 28, 1955

Jhe Lbour

April 9, 1956

Articles 226 and 227

section 16

section 16

section 78(1)(0)

section 16

section 16(3)

section 78