STATE OF U.P. AND ANR. v.

ANNAPURNA BISCUIT MFG. CO.

April 16, 1973

[K. S. HEODE AND H. R. KHANNA, JJ.]

U.P, Sat .. Tax Act 1947 s. 29-A-Yalldity-U.P. Salta Tax (Amtnd• mint&: Ya/ldatlon)Act 1971 Ss. IS and 17-Stction IS lns1rtlng s. 29A Into parent Act-Stctlon 17 making constqutntlal provlslon,,_Yalidlty of Ss. IS and 17-State Legislature whtthtr has compttene< lo enact law enforcing dtposlt of monty wrongv reallstd by dtaler as sales.tax-Such law whtthtr covtrtd by Constitution of India, Sevenrh Schedule, entry 54 List 11 or entries 7 and 10' List Ill.

By s. 29-A of the U.P. Sales Tax Act 1948 inserted by s. 15 of th.e U.P. Sales Tax (Amending and Validation) Act 1971 sales-tax wrongly realised by a dealer from any person had to be deposited in IM Govern ment Treasury. It would be held in trust by the Government on behalf of such person and refunded to him if application for that purpose was made within a period laid down in the section. Section 17 of the Amend ing Act contained consequential and validating provisions.

The High Court of Allahabad in petitions filed by the respondents held that the State Legislature had no competence to enact a provision like s. 29-A and therefore its enactment was unconstitutional.

Consequently s. 17 of the Amending Act was also unconstitutional.

Dismissing the appeal filed by the State,

HELD : (i) The argument that provision like section 29-A is ancillary or incidental to the collection of tax legitimately due under a law made under entry 54 has no force in view of this Court's decision in Abdul Quader's case and in Ashoka Marketing Ltd., wherein provisions similar to s. 29-A were held not to fall under entry 54 of List II. [991 DJ

 (ii) The impugned law could not also be held to fall under. entry 7 List III which relates to contracts. A similar argument was rejected by this Court in Ashoka Marketing Ltd. (992 G]

(iii) The impugned law could not be said to relate to trusts so as to fall under entry I 0 of List Ill. A law compelling deposit of money m-ongly realised as salestax cannot in pith and substance be considered to be a law relating to trusts. [993 BJ

(iv) S. 17 was linked with s. 15 and could not exist independently of that section. The High Court rightly held it to be unconstitutional.

Abdul Quarder and Co. v. Sales Tax Officer, Hyderabad, (1970] 25 S.T.C. 155 and Ashoka Marketing Ltd. v. State of Bihar and Another, [1970] 26 I.T.R. 254, applied.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1716 of \972.

Appeal by certificate from the judgment and order dated November 11, 1971 of the Allahabad High Court in Civil Misc.

Writ Nos. 3716 of 1970.

S. N. Kachar, N. D. Karkhanis, K. C. Agarwala and O. P.

A Rana, for the appellants.

Yogeshwar Prasad, S. K. Bagga and S. Bagga, pondents.

The Judgment of the Coun was delivered by

for tlle res '

KHANNA, J. This appeal by certificate is directed against the judgment of Allahabad High Court whereby that court held the provisions of section 29-A of the U.P. Sales Tax (Act 15 of 1948) (hereinafter referred to as the principal Act) inserted by section 15 of the U.P. Sales Tax (Amendment and Validation) Act, 1971 (Amendment Act of 1971) hereinafter referred to as the Amending Act) as well as section 17 of the Amending Act to be unconstitutional.

This Court in the case of Commissioner of Sales Tax v. Ganga Sugar Corporation Ltd.(') held that section 8-A ( 4) of the principal Act was ultra vires the State Legislature : SeCtion 8-A

( 4) read as under :

"8-A(4). Without prejudice. to the provisions of clause (g) of sub-section (2) of section 14, the amount realised by any person as tax on sale of any goods shall, not withstanding anything contained in any other provision of this Act, be deposited by him in a Government treasury within such period as may be pres.cribed, if the amount so realised exceeds the amount payable as tax in respect of that sale or if no tax is payable in res. pect thereof."

The Court in that context relied upon the decision in Abdul

Quader and Co. v. Sales Tax Officer, Hyderabad. (2 ) it was held in Abdul Quader's case that the State Legislature in making a similar provision, viz., section 11(2) in the Hyderabad General Sales Tax Act, could not be regarded as having directly legislated for the imposition of sales and purchase tax under entry 54 List II in the Seventh Schedule to the Constitution because the amount thougl} collected by way of tax was not exigible as tax under the law. It was observed :

"We do not think that the ambit of ancillary or incidental power goes to the extent of permitting Legislature to provide that though the amount collected-may be • wrongly-by way of tax is not exigible under the law as made under the relevant taxing entry, it shall still be paid over to Government, as if it were a tax."

(1) [1970] 2S S. T. C.

ISS.

(2) [19641 IS S. T. C. 403.

In 1969 the Uttar Pradesh Taxation Amendment Act, 1969 (U .P. Aot 11 of 1969) was passed. Section 17 of that Act inserted section 29-A which read as under:

"29-A.-Refund in special cases.

Notwithstanding anything contained in this Act or in any other law for the time being in force or in any judgment, decree or order of any court, where any amount is either deposited or paid biY any dealer or other person under sub-section (4) or sub-section (5) of section 8-A, such amount or any part thereof shall on a claim being made in that behalf in such form and within such period as may be prescribed, be refunded to the person from whom such dealer or the person had actually realised such amount or part, and to no other person."

On August 22, 1971 the Amending Act was published. A number of amendmell'ls were made by the Amending Act in the principal Act. By section 10 of the Amending Act, sub-section ( 4) and ( 5) of section 8-A were omitted.

Section 15 of the Amending Act was as under:

"15. For section 29-A of the principal Act, the following section shal) be substituted, llJlmely :-

"29-A. ( 1) Where any amount is realised from any person by any dealer purporting to do so by way of realisation of tax on 1he sale of any goods to such person, such dealer shall deposit the entire amount so

realised into the Government Treasury, wit; hin such period as may be prescribed notwithstanding that the dealer is not liable to pay such amount as tax or that only a part of it is due from him as tax under this Act,

(2) Any amount deposited by any dealer under subsection ( 1) shall, to the extent it is not due as tax, be held by the State Government in trust for the person from whom it was realised by the dealer, or for his legal representatives, and the deposit shall discharge such dealer of the liablity in respect thereof the extent of the deposit.

( 3) Where any amount is deposited by any dealer under sub-section ( 1 ) , such amount or any :Qart thereof shall, on a claim being made in that behalf in such form as may be prescribed, be refunded, in the manner pr~ cribed, to the person from whom such dealer had ac_tua!ly realised such amount or part, or to his legal representatives, and to no other person.

Provided that no such claim shall be entertained after the expiry of three years from the date of the order of assement or one year from the date of the final order on appeal, revision or reference, if any, in respect thereof, whichever is later.

Explanation-The expression 'final order on appeal, 'revision or reference' includes an order passed by the Supreme Court under Article 32, Article 132, Article 133, Article 136 or Article 137, or by the High Court under Article 226 or Article 227 of the Constitution."

Section 17 contains transitional provisions for deeming and validation consequent upon the deletion of sub-sections ( 4) and ( 5) of Section 8-A and the substitution of section 29-A in the principal Act. ·

The dispute relates to the amount which a dealer wron~Jy realises as sales tax from the customer and the question whtch arises for consideration is whether a State Legislature has the legislative competence to pass a law for the deposit of that amount in the Government Treasury. In other words, is there any entry in List 11 or List III of the Seventh Schedule to the Constitution under which the State Legislature could make such a Jaw? So far as section 17 of the Amending Act is concerned, the High Court observed that 1his section was dependent upon and interrelated with section 15 of the Amending Act. Sectton 17 provides that the amount already deposited under section 8-A ( 4) of the principal Act shall be deemed to be under section 29-A as substituted bv section 15 of the Amending Act.

Section 15 is the principal provision, while section 17 is an ancillary provision. If section 15 was unconstitutional, section 17 would also share the same fate and would have to be struck down as unconstitutional because it is linked with section 15 and cannot exist independently of that section.

Learned Advocate General appearing for the appellant State has not, and in our opinion, rightly challenged the correctness of the view taken by the High Court in this respect.

We may now deal with the provisions of secdon 15 of the Amending Act as a result of which section 29-A was substituted in lieu of the old section 29-A in the principal Act. Section 29-A deals with the amount wrongly realised 1fy a dealer on sale of goods to any person.

Sub-section (I) of section 29-A of th~ Principal Act makes it obligatory on the part ol' the dealer to deposit such amount into the Government Treasury "notwithstanding: 1hat the dealer is not liable to pay much amount as tax or that only a part of it is due from him as tax under this Act." Subsection ( 2) provides that the amount so deposited by a dealer shall to the extent it is not due as tax from him be held by the State

Government in trust for the person from whom it was realised by the dealer or for his legal representatives. It further provides that when a dealer has deposited the amount into .the Treasury, he shall no longer be liable to the person from whom he has realised the amount.

According to sub-section (3) of the section, the amount deposited into the Government Treasury by the dealer or any part thereof shall, on a claim being made in that behalf in such manner and form as may be prescribed, be refunded to the person from whom the dealer had actually realised the amount or part, or to his legal representatives.

Section 29-A thus seeks to ensure the deposit into the Government Treasury of the amount by a dealer as has been wrongly realised by him as sales tax. AJ the said amount does not constitute sales tax, it is not covered by entry 54 in List II of the Seventh Schedule to the Constitution which rel!l'les to taxes on sale or purchase of goods other than newspapers subject to the provision of entry 92-A of List I.

The arugment that provision like section 29A is ancillary or incidental to the collection of tax legitimately due under '' law made under entry 54 has no force. Such an argument was rejected by this Court in Abdul Quader's case (supra) in the following words:

"The provision however is attempted to be justified on the ground that though it may not be open to a State Legislature to make provision for the recovery of an amount which is not a tax under entry 54 of List II in a law made for that purpose, it would still be open to the Legislature to provide for paying over all the amounts collected by way of tax by persons, even though they really are not exigible as tax, as part of the incidental and encillary power to make provision for the levy and collection of such tax-But where the legislation under the relevant entry proceeds on the basis that the amount concerned is not a tax exigible under the law made under that entry, but even so lays down that though it is not exigible under the law, it shall be paid over to Government, merely because some dealers by mistake or otherwise have collected it as tax, it is difficult to see how such a provision can be a.ncillary or incidental to the collection of tax legitimately due under a law made under the relevant taxing entry."

The above observations were quoted with approval by a six Judge Bench of this Court in the case of Ashokq Marketing Ltd.

v. State of Bihar and Another('). In that case the provisions of section 20 A of the Bihar Sales Tax Act which were substantially

(!) (19701 26 I. T. R. 254.

similar to those of section 2 9-A now inpugned before us, were assailed. Shah J. (as he then was) speaking for the Court observed:

"A provision which enables the dealer to pass on the liability for payment of tax is incidental to legislation for sales tax.

But we are unable to hold that a provision under which a dealer is called upon to pay to the State an amount which has been collected by him on a representation-express or implied-that an equal amount is payable by him under the Bihar Sales Tax Act, is a provision incidental to the power to levy 'tax on sale or purchase of goods' within the meaning of entry 54 List II of the Seventh Schedule.

Entry 54, List II, of the Seventh Schedule comprehends the power to impose tax, to prescribe machinery for collecting the tax, to designate officers by whom the liability may be imposed and to prescribe the authority, obligation and indemnity o.f the officers. The State Legislature may under entry 54, List II, be competent to enact a law in respect of matters necessarily incide!llal to 'l\ax on the sale and purchase of goods'. But a provision compelling a dealer who has deliberately or erroneously recovered an amount from the purchaser on a representation that he is entitled to recover it to recoup himself for payment of tax, to pay over that amount to the State cannot, in our .iudgment, be regarded as necessarily incidental to lavying an amount as tax which the State is incompetent to levy. A mere device cannot be permitted to defeat the provision of the Constitution by clothing the claim in the form of a demand for depositing the money with the State which the dealer has collected, but which he was not entitled to collect."

In view of the above decision, the contention that the impugned Act would be covered by entry 54 in List II can plainly be not accepted.

Argument has been advanced before us on behalf of the appellant that the impugned law would be covered by entry 7 in List III which relates, inter alia, to contracts.

A similar argument was advanced in the case of Ashoka Marketing Ltd. (supra) and was rejected in the follawing words :

"We fail to appreciate how power to legislate in respect of entries 6, 7 and 13 would authorise the State Legislature to legislate in respect of recovery from the dealer of an amount wl!.ich the dealer was in law not

U.P. STATE v. ANNAPUllNA BISCUIT CO', (Khanna, 1.) 993

entitled to collect, but which he has collected.

The power to legislate in respect of sub-section ( 3), ( 4) and ( 5) of section 20A does not fall under entries 6, 7 and 13 of List III expressly, nor can it lie said that the power to legislate ls necessarily incidental to the power contained in entries 6, 7 and 13 of List III."

Lastly, it has been argued that the law in question relates to trust and can be justified under entry 10 in List III. We, however, fail to see as to how such a law can be said to relate lo trusts. A trust is an obligation annexed to the ownership of property and arises .out of confidence reposed in and accepted by the owner or declared and accepted by him for the benefit of another or of C another and the owner(see section 3 of tbe Indian Trusts Act, 1882). It is plain that a law compelling deposit of money wrongly realised as sales tax cannot in pith and substance be considered to 1* a law relating to trusts. The mere use of the word "11'.Ust" in sub-section (2) of section 29-A would not make the impugned law to be one relating to trusts. f) The appeal consequently fails and is dismissed with costs.

o.c.

Appeal dismissed.

STATE OF U.P. AND ANR

ANNAPURNA BISCUIT MFG. CO

April 16, 1973

H. R. KHANNA, JJ.

Tax Act 1947

s. 29

s. 29A

Constitution of India

s. 29

Sales Tax Act 1948

s. 15

Section 17

High Court of Allahabad

s. 29

s. 17

section 29

Abdul Quader

Ashoka Marketing Ltd.

s. 29

S. 17

s. 15

CIVIL APPELLATE JURISDICTION

Allahabad High Court

S. N. Kachar

N. D. Karkhanis

K. C. Agarwala

O. P.

A Rana

Yogeshwar Prasad

S. K. Bagga

S. Bagga

KHANNA

section 29

section 15

section 17

section 8

section 14

section 11(2)

Seventh Schedule

Section 17

section 29

section 8

August 22, 1971

section 10

section 8

Section 15

section 29

Supreme Court

Article 32

Article 132

Article 133

Article 136

Article 137

Article 226

Article 227

Section 17

Section 8

section 29

Seventh Schedule

section 17

section 15

section 8

section 29

section 15

Section 15

section 17

section 15

section 17

section 15

section 29

section 29

Section 29

section 29

Section 29

Seventh Schedule

section 29A

section 20

section 2

Shah

Seventh Schedule

Seventh Schedule

section 20A

section 3

Indian Trusts Act, 1882

section 29


DAMODAR VALLEY CORPORATION

WORKMEN April 18, 1973

(A. N. GROVER AND C. A. VAIDIALINGAM, JJ.]

Industrial dispute-Right of employees to construction allowance.

One of the disputes between the appellant and the respondents, referred to the Industrial Tribunal, was whether construction allowance should be payable to any categories of regular employees for extension of existing projects after the operation stage had commenced, and if so, to what extent and to which categories of regular employees. The Tribunal held that the allowance should be payable to all categories of regular employees including school teachers and welfare centre workers at any station where there is both construction work and operational work.

Dismissing the appeal to this Court,

HELD : The Tribunal was justified in holding that the employees, who were posted at the same station, some doing construction work and others operational work, will both be entitled to construction allowance, as the two sets of employees have to be treated and paid uniformly.

According to the circulars issued by the appellant the essential qualification for getting construction allowance was that the employee must be stationed at the construction camp site, the reason 'for such payment being the arduous and exacting nature of construction duties and the lack of civic amenities at the camp site. The evidence in the case, however, disclosed that the appellant had modified these principles, because, construction allowance was paid even to employees who were posted at headquarters but who had to visit the construction site during the process. of such construction. If such employees are posted or stationed at headquarters they will be enjoying the civic amenities in the same manner as the other employees who are doing operational work at the same headquarters. There would be no distinction between them in the matter of enjoying civic amenities, but the former are paid construction allowance while the latter are not.

Also there is no justUication for denying construction allowance to the employees coming under the cate_gory of school staff especially when employees coming under the head of hospital staff are paid construction allowance.

The appellant has neither pleaded nor established any factors distinguishing the two categories of employees. r998 A; 1001 G-H; 1003 E-H; 1004 ~GJ

CIVIL APPELLATE JURisorc'iroN :· Civil Appeal No. 1666 of 1968.

Appeal by special leave from the Award dated January 27, 1968 of the National Industrial Tribunal at Calcutta in Reference No. NIT-2 of 1967.

Niren De, Attorney-General for India, and D. N. Mukherjee, H f<Ythe appellant.

D. L. Sen Gupta and S. K. Nandy, for respondent No.2.

D.V.C.V. WORKMEN (Vaidialingam, J.)

The Judgment of the Court was delivered by

VAIDIALINGAM, J. In this appeal, by specialleve, the question: that arises for consideration is the correctness of the award of construction allowance to the operational staff. ·

By its order dated June 1, 1967, the Central Government referred for adjudication to !the National Industrial Tribunal, Calcutta, various disputes. We are concerned in this appeal only with dispute No. 5(a} namely:-

"Should construction allowance be payaple to any categories oi regular employees for extension of exjsting projects after the operation stage has commenced? If so, to what extent and to which categories of regular employees?"

'The unions clrumed payment of construction allowance. to the operational staff also while the management contested their claim.

The Tribunal by its award dated January 27, 1968, in Reference No. NIT-2 of 1967 has held that construction allowance should be payable to all categories of regular employees at any station where work of extension of the existing project, after the operation stage has commenced, is going on i.e. at any station where there is both construction work and operational work.

The Trib!l!!nal has further directed such payment to be made uniformly to all categories of regular employees posted at 'the station, including school teachers and welfare centre workers.

According to the directions given by the Tribunal, construction allowance is payable to all categories of regular employees who are posted at any station where both construction work and operational work are being carried on. ·

The learned Attorney General, on behalf of the appellant, urged that construction allowance is paid only to those employees, who are actually on the site where the construction works are going on.

Such payment, it is pointed out, was made to compensate those employees tor lack of civic amenities at the site, where construction work has been started and is going on.

According to him, the operational staff, who are posted in town

ships enjoy all the am.enities provided therein and hence are not eligible for payment of this construction allowance. In support of this contention, the learned Attorney General referred us to the circulars issued by the management as well as the answers given by the witnesses.

According to him, the directions given by the Tribunal, apart: from putting the appellant to considerable expense, are contrary to the evidence adduced in the case and even the claim made by the workmn.

SUPREME COURT REPORTS

[1973] 3 S.C.R.

Mr. Sen Gupta, learned counsel for the workmen, pointed 'OUt that the unions had placed materials before the Tribunal to show that even certain employees domg operational work and who had nothing to do with construction work, were being paid construction allowance.

Therefore, the plea of the appellant that it is only the employees, who are actually posted and work at the const:I1Uotion site that are eligible for much payment, is contrary even to the evidence adduced on behalf of the appellant.

The learned counsel also drew our attention to the relevant averments in the unions' written statenrents as well as the answers _given by the appellant's witnesses themselves and urged that the very limited relief granted by the Tribunal is justified.

At this stage we may mention that the learned Attorney stated 'that even employees posted at headquarters are paid construction allowance provided they have to go to the construction site during the process of construction.

It is now necessary to refer to the circulars issued by the management as well as the material part of the pleadings.

Annexure I to the Special Leave Petition regarding construction .allowance is as follows :-

"DAMODAR VALLEY CORPORATION

REVISION OF PAY SCALES Construction allowance granted in view of the arduous and exacting nature of construction duties shall continue to be paid at places which are declared to be construction camps and it shall be withdrawn from the date the places are declared to have been ceased to be construction camps.

To avoid undue hardship, such withdrawal will be made in stages as shown below except in the cases of DIPS and BTPS 4th Unit employees :-

(i) For the fin:t 6 months from the date of withdrawal of the construction allowance.

(ii) For the next 6 months

Allowance admissible

15 % ofpaysubjectto a muimuro

of Rs. 75/-.

10% of pay subject to a maximum of Rs. 50/-.

(iii) For the next 6 months 5% of pay subject to a maxi- G mum of Rs. 25/-.

(iv) Thereafter Nil ----------·------------- The above reduible allowance shall. admissible to such of the employ~ only as are in receipt of the

construCtion allowance and continue to be stationed at these places." There is no controversy that the payment of construction allowance began somewhere about 19S2. In fact both the unions Tepresenting the workmen admitted this fact in their written

D.V.C.V. WORKMEN (Vaidia/ingam, 1.) 997

statements. From the extract given bove, it will be noted that the allowance is paid. in view of the arduous and exacting nature of construction duties at places which are declared to be construction camps. In order to soften the rigour of its withdrawal,. the said payment is slowly stopped in the circumstances arid at the rates mentioned therein, when once the concerned places. have ceased to be construction camps.

On February 14, 1953, another circular was issued regarding the construction allowance by the appellant. The relevant part of the circular procee.ds to state:

"It has been decided by the Corporation to continue the grant of Construction Allowance at the rate of 20% oe pay (rounded to the nearest (rupee) up to maximum of Rs. 100/- p.m. The admissibility of te allowance wjll be subject to the following conditions:- ( 1 ) Construction Allowance, which will be i-n the nature of a Compensatory Allowance, will be admissible to:- ( a) all employees in the regular establishment stationed at Construction Camps;

NOTE : "Construction Camps" means all camps which have been specifically set up by the DVC for construction

work and where such work is either due to start or is in progress. They will cease to be considered as "Construction Camps" as soon as the construction work has been completed. The following are the Construction camps now in existence: Tilaiy, Konar, Bokaro, Maithon, Panchet, Durgapur and all other Irrigation Camps;

(b) Em ployess stationed at townships not set up by the DVC, such as Asansol, Gopalpur, Burdwan and Hazaribagh, only if and when their activities are connected with construction and lie ouside a radius of 5 miles from the respective township,

(c) The staff employed on the construction substation at Loyabad, Sindri and other elaces as well as the. staff stationed at Kodanna, Hazaribagh Road Station, Gomia, Tasra and Muri.''

• * • • •

From the circular ol 1953 it is clear that the eligibility for

recivng construction allowance is that the employee should be stat10ned at a construction camp, unless he comes under clause

(b) of paragraph l. Prima-facie these two circulan give impor·

'998

SUPREME COURT 1\:EPOR.TS [1973] 3 s.c.R..

tance to the employee being at a particular place where he is discharging an arduous and exacting nature of construction work.

We will now refer to the pleadings. The workmen were rep- :resented by two unions, D.V.C. Staff Association (hereinafter to

be referred to as the Association) and D.V.C. Karamchari Sangh

resented by two unions, D.V.C. Staff Association (hereinafter to its written statement dated September 19, 1967, the Association states:-

"That the construction allowance was introduced by the Corporation in the year 19S2 and the same was .being given to the worers who work in the construcion

divisions only. The rate of C.A. was 20% of pay subject 'to a maximum of Rs. 100/·".

The Sangh in its written statement date October 7, 1967, has stated that the construction allowance was introduced in the year 1952 and that the same is given to those workers who work in construction divisions. In paragraph 16 ot the v.:ritten statement it has stated:

"That me chart marked annexure 'B' will show at a glance which categories of workmen and at what stage rof work and under what circwnstances become entitled to the construction allowance and at what rate." In Annexure 'B' to the written statement, the Sangh had given the particulars regarding the categories of workers who were peing

given construction allowance, as well as the rates at which such workers were getting. It had 'also given particulars regarding the category of workers who were not getting the construction allowance. It is only necessary to refer, in this Annexure 'B', to the workers coming under items (a), (c) and (d) as well as the note.

'b, c.

od.

oe,

ANNEXURE 'B'

CONSTRUCTION ALLOWANCE

Category of Rate • Stage and Workers circumstances

All W::>rkers borne on 20% of pay Workers get construction allow. regular Establishment ance from the very beginning till th! operation stage,

X X X Workers of common ser- 20% of pay These workers continue to eoy vices, such as security the benefit of construe on staff, Hospital Staff, staff allowance at all the staaes. of Inspection Bangalow and others.

Schools staff, Welfare Nil They cease to get construction Centre staff etc. allowance after the commencement of ths secondary stage.

X X X

n.v.c.v. woRKMEN (Vaidialingam, 1.) 999

NOTE: Construction camp (for the purpose ol construction allowance) means all camps which have been _specifi cally set up by the D.V.C. for construction work and where such work is either due to start or is in progress.

They will cease to be considered as .. Construction Camps" as soon as the construction work has been com

pleted." B

It is to be noted that in Annexure •a•, the Sangh had catesorl cally stated that the workers of common services, such as s.ecurity

staff, hospital staff, staff of inspection bunsalows and others were gettins the construction allowance at all stages, whereas the school staff, welfare centre staff, etc. ceased to get the construction allowance after the commencement of the secondacy stage,

The appellant filed its written statement on December 3, 1967.

In pragraph 46, it has met the allegations contained in paragraphs 51 to 53 of the Association's written statement. It

has averred that the construction allowance is intended to com pcnsate the employees, at construction camps, when construction of a project has commenced in rural or hilly areas without any of the amenities of a townsliip for the deprivation of such amenities.

The appellant has further stated that the employees engaged in the operation of a project, after it has reached the operational stage, arc not justified in claiming a construction allowance, It has further pleaded that the allowance is withdrawn in the course of two years to avoid hardship to the employees, who cease to be in the construction camps. Here again it will be seen that the case of the appellant is that the construction allowance is paid only to those employees who are in the construction camp, that is the site where the construction work is goin, g on. It is only then that those employees will not be having the amenities of a township iF because the construction site will be in a rural or hilly area.

There is a reference to Annexure 'B' in paragraph 50 of the appellant's written statement. A major part of thall: paragraph deals with some of the averments mde by the Association. Wtth

re&ard to Annexure 'B', it is stated;

" . . . . . . It is denied that the claims made by the employees in Annexure 'B' to the said statement should be granted in full or at all or with retrospective effect or at an or that any part of them should be granted as

claims or at all."

The learned Attorney General was prepared to accept the position that the denial regarding Annexure 'B' in this paragraph relates to the same Annexure 'B' filed by the Sangh along with dts written statement and referred to in paragraph 16 of their

SUPREME COURT REPORTS (19731 3 s.c.R.

written statment. It must be stated that if paragraph 50 has not met with the averments in Annexure 'B', there is no other paragraph in the written statement of the appellant dealing wilth Atmexure 'B'. Therefore, it is reasonable to proceed on the basis that 'the only paragraph dealing with Annexure 'B' is this paraaph 50.

The point to be noted is that while the Sangh has categoncly stated in annexure 'B' (which was part of the written s_tatement filed as early as October 7, 1967) the workers coming under category (c), who get construction allowance at all stages, and the workers coming under category (d), who cease to get construction allowance after the commencement of the secondary stage, the appellant, though it iiled its written statement only as late as December 2, 1967, has not explained nor given any information as to the circumstances under which these two categories either get or do not get construction allowance, and if so, under what circumstances. The appellant was content with merely denying -the--claim made in annexure 'B'. It must be emphasised that while the appellant has specifically taken the plea in paragraph 46 of its written statement that construction allowance is paid only \\'hen

the employees are actually, so to say, stationed at the construction site, there was a duty on its part to properly explain and given particulars how the workers, suh as security staff, hospital staff, staff of inspection bungalows and others got construction allowance and the employees of the schools~ welfare centres and other staff did not get that allowance.

One would have epected the

app~Jlant to clearly refer to the nature of the duties performed by these various employees coming under categories (c) and (d) as well as the places where they are located, namely, whether at the

comtruction site or at places where a township has grown and amenities are available.

At this stage we can also mention that even during 1he trial of the proceedings, the appellant has not adduced any evidence in respect of the matters that we have just mentioned, though it has produced evidence, oral and documentary.

We will now refer to the oral evidence adduced in the case.

PW-1. the Joint Secretary of the Association, has stated in chief

eamination that the manaement does not pay construction allowance to all categories of workmen at the same place.

He has further deposed that at the same station some are paid such. allowance and other workmen of the same category do not get the same. In cross-examination, he has stated that construction allowance was given to workers connected with the construction work whether they stayed in the construction camps or not. He has further deposed that construction aUowance was given to remove hardship arising from the site of work and to compensate for absence of amenities, like schools, hospitals, bazars and other benefits of civilised life. When the construction has progressed, townships and colonies have grown with all amenities at some

D.v.c. v. WOI.DriBN (Yaidialingam, 1.) 1001

A stations. PW-2, tho Joint Secretary of the Sangb, has stated that all the sites of wo.rk under the management have not been provided with schools, bazars, hospitals and other amenities.

Tho material part of tho evidence of MW-1, Director of Personnel, who gave evidence on boha1f of tho management, is as follows :-

When work on any project has started at any site, where no civic amenities• are. available, the site is termed as 'CQnsttuction camp' and personS employed therein are given construction allowance to compensate for lack of civic amenities.

Till the work there is completed and the camp is declared a nonconstruction camp, every employee working therein gets cone struction allowance. It may happen that a r>rtion of a project has completed and has gone into .operation the. remaining portion of the project is at the construction stage. In such cues,

the establishment is divided into a construction establishment, attending to construction which is still going on, and an operational establishment. All employees of construction establishment Jet D construction allowance, which is withdrawn ip. a phased manner from the employees of the operational establishment. When construction work at one construction camp is complete, such of the regular employees, as are required for operational work at the camp are retained there and the remaining regular employees are transferred. If they are transferred to another construction camp, E they get construction allowance; here8.s if they are transferred to a non-construction camp, they will not get construction allowance.

The regular employees, who are at the construction site or who are posted at their headquarters,. but have to visit the construction site during the process of construction, are paid cnstruction allowance.

We have generally set out the nature of the materials on record.

F From the above materials, the following conclusions broadly emerge:- Construction allowance is paid to employees of the regular establishment, who are stationed at the construction camps, in view of the arduous and exacting nature of construction duties they perform. Construction allowance is given. to compensate for the G lack of civic amenities. Even the regular employees, who are at their headquarters, but have to visit the construction site during the process of construction, are, according to PW-1, paiQ. the construotion allowance. There is no controversy the employeeS, who are stationed at H the construction site and are employed therein are eligible for being paid the construction allowance.

There is also no controversy that the employees, who are doing the operational work, which must be in a place where amenities are available, are not eligible

16~ 797SupCI/73

SUPREME COU~T.REPORTS .

for construction allowance. The controvery arises regarding the regular employees, who are in the same statJon, but soe of whon are doing operational work and others do construction work m an extension project. The claim of the workmen is that no distinction should t)e made in the matter of payment of con!>uuction allowance to the regular employees, who are posted at the same station, merely on the ground 'that some of them are employed in operational work and the others are in construction work in connection with the extension of a project. According to them, the employees doing work. in the construction project are not stationed at the construction site.

On the other hand, they arc also stationed in a township where amenities are available. lf under such circwnstances, they are paid construction allowance, which is really to compensate for lck of such amenities, there is no reason why the said allowance should not be paid to the operational staff working at the same station merely becaus.:! civic amenities are already provided.

The sum and substance of the claim of the workmen is that under such circumstances both types of workmen, posted at the same station should be paid t:onstruction allowance.

Very strong. reliance has naturally been placed on behalf of the respondents on Annexure 'B' filed along with the written statement of the Sangh on October 7, 1967. We have already referred to the averments in paragraph 16 of the said written statement as well as the contents ol Annexure 'B'. 1he workers under category (c) in this Annexure are getting the construction :lllowance. There is no evidence placed before the Tribunal by

the appellant regarding the places of work of the employees coming under category (c); nor explaining the reasons qualifying ucb workmen to get the construction allowance.

According to the union.~, school staff and welfare centre staff coming under category (d) are also similarly situated . as 1he employees under

cateory (c) and that there is no justification for denying cons trucuon allowance to those workmen. .

. The learned Attorney General no Joubt urged that except fihng Annexure '13' ruong with the written statement neither PW-l nor PW-2, who gave evidence on behalf of\he unios. ha~ explain. cd th.c content., of Annexure 'B' and given any infonnatron as tL) the crrcumsaces under which the .workers comin~ under c::tcgory

(d) <rc eligible to get construction allowance.

The larn.:d Attornt'y General is right in his criticism that these two wit111.sse'i

have. nat !laid. anything in their evidence about Annexure 'B'. flut, 10 .our optnio~, that docs not absolve the appellant, who i-. in

J'{N,~:_,·, rnn oC :Jll .mformation regarding the matters mentionl!d 1h:rt:rn. from oiJcrng the necessary materials before the Tribunal to -..huw tht: di\tingui., hing and differentiating features of the two --···

' • ...,,.....

D.V.C. V, WORKMEN (Vaidialingam, J.) 1003

categorie.; of wvrkmen coming u.nder items (c) and (d).

We have already referred to the fact that Anneure 'B' was before the l'ribunal as early as Octobjer 7, 1967. The appellant filed Its written statement only on December 2, 1967. Except a bald denial regarding Annexure 'B', the appellant has not assisted the Tribunal by placing before it details or particulars such as the nature of work, the place where .he work is being done and other.

relevant factors regarding the eligibility of the particulat group of

workroell under category (c) to get construction allowance.

Nor has the appellant placed any such material regarding the noneligibility for construction allJwance of the workmen corning under category (d). The appellant, who is in possession of all facts, has furnished no information regarding the distinction between the workmen coming under the two categories. The material . part of the evidence of MW-1 has already been referred to by us.

He has stated that the regular employees, who are at Lhe construction site or who are posted at their headquarters, but have to visit the construction site during the process of construction, arc paid construction allowance.

That witness could have very well referred to the different types of work, if any, done by the employees coming under categories (c) and (d) of Annexure 'B'.

No such evidence has been furnished by that or any other witness.

He has also admitted that at the same station a time will come when there are two sets of employees, some connected with the operational work and the others coll!nected with the construction work of an extension project. The point to be noted from this evidence is that when the above two types or employees are posted at 'the same station, both of them will be having the benefit of the civic amenities provided at that station, because, even according to the appellant, by the time the operational stage is reached, full

civic amenities are already provided.

According to the circulars already referred to, the essential qualification for getting construction allowance is that the employees must be stationed at the construction camp site.

This is emphasised by the circular dated 14-2:1973. The reason for such payment is the arduous and acting nature of construction duties and the lack of civic amenities at the camp site. Obviously, the appellant has modified the above principle. The evidence of MW -1 shows that construction allowance is paid to employees who are posted at headquarters but have to visit the construction site during the process of construction.

The e; sential qualification for receipt of construction allowance viz. of being stationed at construction camp site, has been modified by the appellant. If such employees are posted or stationed at headquarters, they will be enjoying the civic amenities in t:!e same manner as the other employees who are doing operational work at the same headquarters. Thus there

SUPRBMB COUI.T R.BPOR.TS [1973] 3 s.c.R.

is no distinction between them in the matter of enjoying of civic amenities. 1be former as paid construction allowance while the

latter do not get the same.

For instance, according to' the respondents, the entire hospital staff coming under item (c) in annexure 'B' get construction allowance. This has not been controverted by the appellant. Nor is it the case of the appellant that the Hospital staff, relerred to earij.er, is stationed at the construction site. It is not even the case of the appellant that the Hospital staff is covered by clause (b) of paragraph 1 of the circular of 1953. In fact the appellant, except making a general denial, has. not cared to place any material before the Tribunal regarding the location of the Hospital and its staff. It was faintly suggested by the Attorney during the arguments that a Doctor now and then visits the construction site to attend on employees who may require medical assistance.

We will assume that it is so. Even then, according to the circular, the said Doctor cannot get construction allowance, as he is not stationed at the construction site. Leaving out the Doctor for the momentt there is not justification for the entire staff of the Hospital

being paid the said allowance. Even the plea made regarding the Doctor. has not been advanced fore us regarding the remaining staff of the hospital.

Though we are not concerned with the question whether the staff of the hospital should . or should not get construction allowance, we have referred to the above circumstances only to show that there is no justification for denying construction allowance to the employees coming under item (d) or Annexure. 'B'. The appellant has neither pleaded nor established any factors distinguishing the school staff coming under item (d) from the hospital staff referred to in item (c) of Annexure 'B'. If so, it follows that when the employees under item (c) are paid construction allowance, it stands to reason that the employees under item (d) should also get1the said allowance, when bh of them me posted at the same place.

fu .view of the materials on record, in our opinion, the Tribunal was i\lStified in holding that the employees, who are posted at the same station, some doing construction work and other operational work, wm both be entitled to construction allowance. as the two sets of employees have to be treated and paid uniformly. The appeal in the result fails and is dismissed with costs of the respondents one set.

V.P.S.

Appeal dismissed

DAMODAR VALLEY CORPORATION

WORKMEN

April 18, 1973

A. N. GROVER

Niren De

D. N. Mukherjee

D. L. Sen Gupta

S. K. Nandy

D.V.C.V. WORKMEN

Vaidialingam

VAIDIALINGAM

Central Government

National Industrial Tribunal, Calcutta

January 27, 1968

Sen Gupta

February 14, 1953

DVC

Tilaiy

Konar

Bokaro

Maithon

Panchet

Durgapur

Asansol

Gopalpur

Burdwan

Hazaribagh

Loyabad

Sindri

Gomia

Tasra

Muri

D.V.C. Staff Association

D.V.C. Karamchari Sangh

October 7, 1967

December 3, 1967

SUPREME COURT REPORTS (19731 3 s.c.R.

December 2, 1967

D.V.C. V, WORKMEN (Vaidialingam