THE WORKMEN OF H.M.T. & ANR.

THE PRESIDING OFFICER, NATIONAL

TRIBUNAL, CALCUTTA & OTHERS

April 3, 1973

(A. ALAGIRISWAMI, I. D. DUA AND C. A. VAIDIALINGAM, JJ.]

Paynient of Bonus Act, 1964-Payment of minimum bonus under s, 10 whether subject to provisions of .r. 16--Where s. 16(1) applies minimun1 bonus under s. 10 not payable-Different establishments of H.M.T. treated separately each having a separate balance.sheet and profit and Loss account-Exe111ption under ~· 16(1) must be allowed.

Unit No. IV of the Hindustan Machine Tools, a public sector undertaking, was started at Kalamassery, in Kerala in 1963.

Production and sale at this Unit started in 1965-66.

In an industrial dispute referred to the National Tribunal at Calcutta the.workmen.of Unit No. IV claimed bo"us for the years 1963-64 to 1966-67 at the same rate as was paid in Units Nos. I and II aod the Watch Factory of the H.M.T. at Bangalore.

It was contended by the workmen of Unit No. IV that bonus was payable on the ba•is of the consolidated accounts o'f all the Units of the H.M.T.

The National Tribunal held that bonus for the year 1963-64 was payable tc the workQ1en of Unit No. IV at the same rate as in Units No5. I and Il and the Watch Factory at Bangalore, but no bonus were payable to them for the years 1964-65 1966-67. In appeal to this Court by special leave it was contended on behalf of the workmen of Unit No .. IV

(appelbnts) (i) that minimum bonus was payable to the appellants for the years 1964"65 to 1966.-67, under s. 10 of the Payment of Bonus Act, 1964 anJ in applying s. 10 the provisions of s. 16 could not be taken into consideration; (ii) that the H.M.T. ·had in fact maintained a consolidated account for all its Units and the claim of the management that separate profit and loss accounts \Vere maintained was falsely made to defeat the rights o'f the workmen.

The management, by leave of the Court challenged the finding of the Tribunal that bonus was payable to the appellants for the year 1963-64.

HELD : (i) The Tribunal was right in holding that the appellants werec not entitled to any bonus for the year 1964-65 to 1966-67.

(a) Though section IO has not been made subject to section 16 the two provisions will have to be read hafmonious1y so as to give effect tothe purpose of the Act.

Section I 0 will apply to all those unlts, which are otherv.ise bound to pay boius, irrespective of the fact whether the units make profit or Jog<-;.

Section 16 has to be read as an exception to section 10.

Section 16( 1) gives a total exemption to the estabHshments in the circumstances n1enHo.rred therein from payment of bonus which includes the minin1um bonus also.

When the section says that an employee of the establishment referred to in section 16 shall be entitled "to be paid bonus tinder this Act" only if the conditions mentioned therein are satisfied, it is idle to contend thr.t, notwithstanding the exemption granted under section 16. the establishment referred to therein is sill bound to pay minimum bonus.

If section 16(1) opplies, section 10 will not entitlo an employee to get even the minimum bonus under section 10.

Therefore the contention of

A the appellants that in any event, the minimum bonus under section 10

ought to have been awarded, could not be accepted.

1861 E-HJ

Alloy Steel Project v. -The Workmen, 1971 3 S.C.R. 629, referred to.

(b) In this case Units I and II alone have always been treated together 'for the computation of bonus.

All the other three Units and the Watch Factory at Bangalore hav0 each been treated separately and each of them has been having a separate balancesheet and profit and Joss account.

Thi• is the evidence on record which has been accepted by the Tribunal.

There was no reason to differ from this finding.

As Unit No. IV is a different establishment coming under the proviso and not falling under the exception to the proviso to section 3, the main part of section 3 will not assist the appellants. Therefore the exemption claimed under section 16(1) by the management for 1964-65 to 1966-67 in respect of Unit No.

IV, has been correctly acceptedly the Tribunal, [863E-G]

Delhi Cloth & General Mills Co. Ltd. v. Workmen, [1972] 1 S.C.R. 594, referred to.

(ii) The Triburial missed certain items of evidence and proceeded on the wrong assumption that profit bonus for the year 1963-64 was paid to the workmen of the Units on the basis of the Full Bench Formula.

Hence the direction of the Tribunal that profit bonus was to be paid to Unit No. IV as was paid to the Units at Bangalore was clearly erroneous.

Even otherwise the finding of the Tribunal that all the Units were treated as part of one establishment for purposes of bonus for the year 1963·64. was also erroneous.

For the above reason, the direction of the Tribunal for payment of bonus for the year 1963-64 to Unit No. IV must be set. aside.

[865EJ

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 389 of 1970.

Appeal by special leave from the award dated April, 16, 1969 of the National Tribunal, Calcutta in Ref. No. NIT-6 of 1967' published in !he Gazette of India dated May 1 Q, 1969.

F N. Sreekantan Nair, appellant No. 1 in person.

Urmila Kapoor and K. Bansal for appellant No. 2.

G. B. Pai, P. P. Bopanna, K. N. Bhatt and M. M. Ksh11triya,. for respondents Nos. 2 to 7.

Ambrish Kumar and M. V. Goswami, for respontlent No. 1.

The Judgment of the Court was delivered by

VAIDIALINGAM, J. This appeal by special leave by the workmen of the Hindustan Machine Tools, Unit, IV, Kalamassery, is directed against the award dated April 16, 1969, of the National Tribunal at Calcutta in Reference No. NIT 6 of 1967, holding that the appellants are not entitled to any bonus for the years 1964-65 to 1966-67. ·

By order dated October 17, 1967, the Central Government made a reference for adjudication of the disputes to the National Tribunal in the following manner :

"Whereas the Central Government is of opinion that an industrial dispute exists between the employers in respect of the establishments specified in Schedule I and their workmen in respect of the matters specified in Schedule II hereto annexed and that the said dispute is of such a nature that industrial establishments situated in more than one State are likely to be interested in, or affected by, such dispute; And, whereas the Central Government is of opinion that the dispute should be. adjudicated by a National Tribunal;

And, whereas the Central Government is of opinion that the said dispute is of such a nature that the Hindu~

stan Machine Tools it Pinjore and the Hindustan Machine Tools at Hyderabad are likely to be interested in, or affected by, such disputes.

Now, therefore, in exercise of the powers conferred by section 7B, and sub-section (IA) and 5 of section 10, of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby constitutes a National Tribunal of Calcutta, of which Shri S. K. Sen shall be the Presiding Officer, and refers the said disputes to the said National Tribunal for adjudication and includes in that reference, the Hindustan Machine Tools at Pin'jore and the Hindustan Machine Tools at Hyderabad.

SCHEDULE l (I} Hindustan Machine Tools, I, Bangalore. , (2) Hindustan Machine Tools II, Bangalore.

(3) Hindustan Machine Tools IV, Kalamassery, Kerala.

SCHEDULE II

( 1 ) Whether the demand of the workmen in the Hindustan Machine Tools I and II at Bangalore for payment of bonus at the rate of 20 per cent of their salary for the year 1966-67 is justified?

If not, to what quantum of bonus are they enti~?

(2) Whether the workmen of the Hindustan Machine Tools at Kalamassery, Pinjode and

Hyderabad are entitled to any bonus and if so, what should be the quantum of such bonus ? ( 3) Whether the demand of the workmen of the Hindustan Machine Tools I and II of Bangalore and of the Hindustan Machine Tools 1V

at Kalamassery that the bonus should be cal culated on the basis of a consolidated Profit and Loss Account for all the units and all activities and not on the basis of Profit and Loss Account of the separate units and separate activities is justified ?" Although in Schedule I of the order of reerence only the Units at Bangalore and Kalarnassery were referred to, nevertheless, copies of the reference were sent by the Central Gov· ernment to the labour unions of the Hindustan Machine Tools Limited, Unit No. III at Pinjore (Haryana State) and Unit No. V at Hyderabpd as also to the H.M.T. Watch Factory at Bangalore.

The unions representing the workmen of the five Units as well as the Watch Factory had filed statements before the National Tribunal. The managements of these different Units had also filed. statements opposing the claims of the unions.

Before the proceedings commenced, the National Triburtal appears to have felt certain difficulties regarding the scope of the reference. In respect of item 1 of Schedule II, the Tribunal felt

a doubt whether it should also consider the question of bonus=for any other year in respect of Units I and II at Bangalore.. Similarly the Tribunal fei't a doubt as to what was the particular year for which the claim. for bonus is to be considered under item 2 of Schedule II. This doubt arose because no year had been mentioned in the reference under this item. For the pur· pose of getting clarification, the Tribunal invited the views of all the unions as well as the management. All parties agreed that when the reference was ambiguous or doubtful, the scope of the reference can be gathered from the pleadings of the parties. Accepting the agreement of the parties, the Tribunal found from the pleadings that the workmen of the Hindustan Machine Tools, Units l and II at Bangalore, had been paid bonus at the rate of 20 per cent for the years 1964-65 and 1965-66. Therefore, it held that the claim of these two Units under item 1 of Schedule

II has to be considered only for the year 1966-67. Similarly in respect of item 2 of Schedule II of the reference, the Tribunal found that the workmen of Unit No. III at Pinjore claimed bonus for the years 1963-64 and 1964-65 according to the Full Bench Fcrmula and for the years 1965-66 and 1966-67 under the provisions of the Payment of Bonus Act, 1965 (hereinafter to be referred to as the Act). Similarly the workmen of Unit No. IV

at Kalamassery claimed bonus from tbe year 1963-64 onwards A on the basis of bonus paid and payable to the Bangalore workmen.

The workmen of Unit No. Vat Hyderabad claimed bonus at 20 per cent for each of the years, 1965-66 and 1966-67. The workmen of the Watch Factory, who were getting bonus at the maximum rate of 20 per cent, did not require any further bonus to be paid. But that Unit took up the position that the conten- B tion of the various unions who were claiming annual bonus on the basis of the consolidated balance sheets and profit and loss accounts, should be rejected.

Having crystallised the actual scope of the reference in the manner indicated above, the Tribunal proceeded to consider tbe questions tbat arose for consideration. At this stage it may be stated that the workmen of Unit No. IV at Kalamassery, the appellant before us, claimed bonus for the year 1963-64 and onwards on the basis of bonus paid and payable to the Bangalore workmen. It must also be stated that the claim of the appellants,

as well as that of the workmen of Units Nos. I and II at Bangalore was for payment of bonus on the consolidated profit and D loss account of all the units of the Hindustan Machine Tools Limited situated in Bangalore, Pinjore, Kalamassery and Hyderabad as well as of the Watch Factory.

In respect of item 1 of Schedule II, the Tribunal held that the workmen of Units Nos. 1 and II at Bangalore are entitled E only to the minimum bonus at 4 per cent under the Act and that their claim for payment at 20 per cent of their salary for the year 1966-67 has to be rejected. The Tribunal answered items Nos. 2 and 3 of Schedule II as follows :-

My answer to item No. (2) is: The workmen of the Hindustan Machine Tools at F Klilamassery and Pinjore are entitled to the same rate of bonus as is paid to the Watch Factory and. HMT I & II workmen during the year .1963-64. The factory at Hyderabad not having been started by March 31, 1964, becomes disentitled to the provisions of pre- Bonus Act.

Since during the Bonus Act period by G virtue of the maintenance of separate accounts no branch or undertaking.becomes entitled to tbe prosperity of the company, the Hyderabad is not entitled to any bonus at all under the provisions of the Payment of Bonus Act.

My answer to item No. (3) is : H The demand of the workmen of the Hindustan 1'/achine Tools Ltd. I & II at Bangalore and of the

WORK..>dEN H.M.T. v. PRESIDING OFF!CFR (Vaidia/ingani, J.) 855

Hindustan Machine Tools Ltd. No. IV at Kalamassery that bonus should be calculated on the basis of consolidated profit and loss accounts for all the units and for all the activities and not 'on the basis of the profit and loss accounts of the separate units and separate activities is justified, for the year 1963-64 only and not for the years 1964-65, 1965-66 and 1966-67."

It may be stated that none of the workmen aggrieved by one or other or all the findings of the Tribunal on items 1, 2 and 3, excepting the workmen of Unit No. IV at Kalamassery, have come up in appeal. The net result of the above finding so far as Unit No. IV at Kalamassery, which is the appellant, is that its workmen are eligible for bonus for the year 1963-64 at the same. rate of bonus that has been paid to the workmen of the Watch Factory ·

and Units Nos. I and II at Bangalore for the said year. The workmen of Unit No. IV are not entitled to claim bonus for the years 1964-65 to 1966-67 on the basis of the consolidated profit and loss accounts of all the Units of the Hindpstan Machine Tools but only on the basis of the separate profit and loss account maintained for Unit No. IV. After a consideration of the evidence, oral and documentary, the Tribunal held that the said Unit was not entitled to any bonus at all for these three years.

The workmen of Unit No. IV challenged the disallowance of bonus for the year 1964-65 to 1966-67. At the time of granting special leave, the counsel for the management, respondents 2 to 7 hereill, appears, to have represented that there are certain findings recorded ill the award which are challenged by the management. In view of this representation, this Court passed an order on February 24, 1970, permitting the management to bring to the notice of the learned Judges hearing the appeal the various findings which the management proposes to challenge provided notice has been given to the workmen concerned by puttillg them in the statement of case. Accordingly the management has raised in its statement of case. by. way of cross-objections, its grounds of attack on certain findings. Mainly two matters have been referred, namely-

(! ) the finding of the Tribunal that there was functional intcgrality of all the units for the period 1963-64 and the award in consequence of bonus to all the units at the rate that has been paid to Units Nos. I and II, .and

(2) the statement made by the Tribunal in paragraph 25 of the award abOut payment of bonus to the Watch Factory employees.

These points have been pressed before us by the learned counsel for the management.

We will first take up the point regarding the disallowance of bonus for the years 1964-65 to 1966-67 arising in the union's appeal. Mr. N. Sreekantan Nair, the President of the Employees Federation, Appellant No. l, has argued the case in person on behalf of the appellants. It must be stated to his credit that he has .placed the case before us as .lucidly and candidly as possible.

According to Mr. Nair the finding of the Tribunal that the various units of the Hindustan Machine Tools Limited located in the different regions, are different 'establishments and that the management has been having separate profit and loss accounts for each of these Units and that it is only on that basis that bonus will have to be calculated, is erroneous.

According to Mr. Nair the management, with a view to defeat the legitimate rights of the workmen, have made it appear that there are separate profit and loss accounts maintained for each of the Units, while in reality it is not so.

According to him it is only a camoufiage adopted by the management to circumvent the provisions of tbe Act.

Even assuming that separate balance sheets and profit and loss accounts are maintained for each of the Units, he contended that in law the workmen of Unit No. IV at Kalamassery are entitled to the minimum bonus for these years under section 10 of the Act.

The reliance placed on section 16 by the Tribunal for disallowing such a claim is erroneous.

Mr. G. B. Pai, learned counsel for the management, on the other hand, has referred to the material provisions of the Act and also to the evidence on record in support of his contention "lbat the five Units in the different regions and the Watch Factory are all different entities having their own profit and loss accounts and balance sheets. The management, according to the counsel, has not done any thing to defeat the provisions of the Act. The counsel urged that the view of the Tribunal that Unit No. IV is exempt from payment of bonus for the years 1964-65 to 1966-67 based upon section 16, is correct. Section 10 also, the counsel pointed out, will not help the appellants.

The history of the Hindustan Machine Tools Limited and the establishment of the five Units at Bangalore, Pinjore, Kalamassery and Hyderabad as well as of the Watch Factory has been very elaborately dealt with by the Tribunal in the award. Nobody has raised any dispute regarding the various matters referred to by the Tribunal. Therefore, we do not propose to cover the grqund over again. From the evidence, the following facts are also clear:- The H.M.T. was incorporated in 1953.

Th~ Unit I in Bangalore was started in 1953, but production and

-, A

sale began in 1956-57. No. II Unit of Bangalore was started in April, 1960. Production and sale from that Unit started in May, 1961. The third Unit at .Pinjore in Haryana was started in May, 1962. Production and sale at that Unit started in the year 1964-65. The 4th Unit at Kalamassery was started in July 1963.

Production and sale started at that Unit from 1965-66.

The 5th Unit of the H.M.T. at Hyderabad was started in May, 1964 and production and sale at that Unit started in 1966-67. The Watch Factory at Bangalore was started in September, 1961 and indigenous production of watches started in 1963.

From what is stated above, it will be seen that Unit No. 4 at Kalamassery, with which we are concerned, was started in July,

1963. But that Unit commenced production and sale of its articles only from 1965-66. This aspect will have considerable bearing when we consider the impact of section 16. It is now necessary to refer to the material provisions of the Act. The Act by virtue of section 1 ( 4) applies to a factory or department in respect of the accounting year commencing on any day in the year 1964 and in respect of every subsequent accounting year.

Therefore, there can be no controversy that the periods with which we are concerned, namely, 1964-65 to 1966-67, are gov .. erned by the Act.

The terms 'employees', 'employer', 'establishment in private sector' and 'establishment in public sector' arc defined in clauses 13, 14, 15 and 16 respectively of section 2.

Section 3 dealing with establishments, so as to include departments, undertakings and branches, is as foUows :-

Establishments to include departments, undertakings and branches

3. "Where an establishment consists of different departments or undertakings or has branches, whether situated in the same place or in different places, aU such departments or undertakings or branches shaU be treated as parts of the same establishment for the purpose of computation of bonus under this Act : Provided that where for any accounting year a separate balance-sheet and profit and loss account are pre· pared and maintained in respect of any such department or undertaking or branch,. then, such department or undertaking or branch shaU be treated as a separate establishment for the purpose of computation cf bonus under this Act for that year, unless such department or undertaking or branch was, immediately before the commencement of that accounting year treated as part 7-L797 S., p. Cl/73

of the establishmnt for the purpose of computation of bonus."

Section 8 dealing with the eligibility for bonus is as follows

Eligibility for bonus

8. "Every employee shall be entitled to be paid by his employer in. an accounting year, bonus, in accordance with the provisions of this Act, provided he has worked in the establishment for not less than thirty working days in that year."

Section 13 relating to proportionate reduction in bonus in certain cases is as follows :-

Proportionate reduction in bonus in certain cases

13. "Where an employee has not worked for all the working days in any accgunting year, the minimum bonus of forty rupees or, as the case may be, of twenty five rupees, if such bonus is higher than four per cent, of his salary or wage for the days he has worked r. in that accounting year, shall be proportionately reduced."

Section I 0 dealing with payment of minimum bonus runs as follows :-

Payment of minimum bonus

JO. "Subject to the provisions of sections 8 and 13. every employer shall be bound to pay to every employee in an accounting year a minimum bonus which shall be four per cent of the salary or wage earned by the employee during the accounting year or forty rupees, whichever is higher, whether there are profits in the accounting year or pot;

Provided that where such employee has not completed fifteen years of age at the beginning of the accounting year, the provisions of this section shall have effect in relation to such employee as if for the words "forty rupees", the words "twenty-five rupees" were substituted."

We have earlier referred to sections 3 and 13 as section I 0 is subject to those two sections.

Section 11 provides for payment of the maximum bonus of 20 per cent of the salary or wages in the circumstances mentioned therein.

Section 16, which contains

~--

WORKMEN H.M; T, v. PRESIDING OFFICER (Vaidiali.gam, J.) 859

special provisions with respect to certain establishments, is as follows :- ·

Special provisions with respect to certain establishments 16 ( 1) "Where an establishment is newly set up, whether before or after the commencement of this Act, the employees of such establishment shall be entitled to be paid bonus under this Act only- ( a) from the accounting year in which the employer derives profit from such establishment; or

(b) from the sixth accounting year following the accounting year in which the employer sells the goods produced or manufactured by him or renders services, as the case may be, from such establishment,

whichever is earlier : Provided that in the case of any such establishment the employees thereof shall not, save as otherwise provided in section 33, be entitled to be paid bonus under this Act in respect of any accounting year prior to the accounting year commencing on any day in the year 1964.

Explanation 1 :-For the purpose of this section. an establishment shall not be deemed t'b be newly set up merely by reason of a change in its location, management, name or ownership.

Explanation II-For the purpose of clause (a:), an employer shall not be deemed to have derived profit in any accounting year unless-

(a) he has made provision for that year's depreciation to which he is entitled under the Income-tax Act, or as the case may be, under the agricultural income-tax law; and ( b) the arrears of such depreciation and losses incurred by him in respect of the establishment for the previous accounting years have been fully set off against his profits.

Explanation 111.-For the purpose of clause (b), sale of the goods produced or manufactured during the course of the trial run of any factory or of the prospecting stage of any mine or an oil-field shall not be taken into consideration and where any question arises

with regard to such production or manufacture, the decision of the appropriate Government, made after giving the parties a reasonable opportunity of representing the case, shall be final and shall not be called in question by any court or oer authority.

( 2) The provisions of sub-section (I) shall, so far as may be, apply to new departments or undertakings 01 branches set up by existing es.tablishments :

Provided that if an employer in relation to an existing establishment consisting of different departments or undertakings or branches (whether or not in the same industry) set up at different periods has, before the 29th May, 1965, been paying bonus to the employees of all such departments or undertakings or branches irrespective of the date on which such departments or undertakings or branches were set up, on the basis of the consolidated profits computed in respect of all such departments or undertakings or branches, then, such employer shall be liable to pay bonus in accordance with the provisions of this Act to the employees of all such departments or undertakings or branches (whether . set up before or after that date) on the basis of the consolidated profits computed as aforesaid."

The only other section, which requires to be noted, is section 20, which makes the Act applicable to establishments in public sector in certain cases. The Hindustan Machine Tools Ltd. is an establishment in public sector and there is no controversy that by virtue of section 20, the Act applies and it will be liable to pay bonus, if circumstances justify the same.

We•will now consider the contention of Mr. Nair that under section 10 the Unit No. IV is bound to pay the minimum bonus of 4 per cent for the years in question without reference to any other circumstance.

According to him the only provisions, which have to be considered for applying section 10, are, as mentioned therein, the two provisions, namely, sections 8 and 13.

The contention of Mr. Nair is that the workmen of Unit No. IV satisfy the requirements of sections 8 and 13 and, therefore, they are, as of right, entitled to get the minimum bonus.

Mr. Nair further urged that a reference to section 16 is absolutely immaterial for the purpose of considering the applicability of section 10. Section 16, according to him, will come into play only when the workmen claim bonus at .a rate higher than the minimum of 4 per cent provided under section Ht. This. aspect, according to him, has not been at all considered by this Court, when dealing with section 16 of the Act.

A reading of section 10, isolated from the other provisions of the Act, may appear to lend support to the contention of Mr.

Nair that an employee, if he satisfies the requirements of sections 8 and 13; will be entitled to get the minjmum bonus. No doubt, Mr. G. B. Pai, learned counsel, has pointed out that the employees of Unit No. IV do not even satisfy the requirements of sections 8 and 13. That apart, though section 10 has not been made subject to section 16, in our opinion, the two provisions will have to be read harmoniously so as to give effect to the purpose of the Act. Section 10 will apply to all those units, which are otherwise bound to pay bonus, irrespective of the fact whether the units make profit or incur loss.

Section 16, in our opinion, has to be read as an; exception to section 10. In particular, it will be noted that section 16 (1), after referring to an establishment newly set up, whether before or after the commencement of the Act, states that ">the employees of s_uch establishment shall be entitled to be paid _bonus under this Act only .... " It cannot be controverted that payment of even the minimum bonus under section 10 or bonus upto the maximum of 20 per cent, as per section 11, will both be "payment of bonus under this Act", as contemplated by section 16.

Similarly, eligibility for bonus under section 8 "in accordance with the provisions of this Act", can be related only to tl_tose cases where the bonus is payable either under section 10 or under section 11.

Section 16 ( 1) gives a total exemption to the establishments in the circumstances mentioned therein from payment of bonus which include the minimum bonus also. When the section says that an employee of the establishment referred to in section 16 shall be entitfed "to be paid bonus under this Act" only if the conditions mentioned therein are satisfied, it is idle to contend that, notwithstanding the. exemption granted under section 16, the establishment referred to therein is still bound to pay a minimu, m bonus.

No doubt that liability to pay the minimum bonus, at any rate, will certainly attach itself to the particular establishment, if one or other of the conditions mentioned in sub-clauses (a) or (b) of section 16(1) come into play. Under such circumstances, it will be open to an employee to claim not only the minimum bonus but also bonus at a higher rate upto the maximum of 20 per cent, if circumstances permit. Mr. Nair is no doubt right in his contention that section 10 has not been referred to by this Court, when dealing with section 16.

The reason for such nonconsideration is because no such argument, as is now placed before us, appears to have been raised before this Court. Now that S!lch a contention has been raised, we have dealt with it. According to us, if section 16 (1) applies, however, hard the result may be, section 10 will not entitle an employee to get even the minimum bonus under section 10. Therefore, the contention of

Mr. Nair that in any event the minimum bonus under section 10 should have been awarded, cannot be accepted.

In this connection we may also refer to the decision of this Court in Alloy Steel Project v. The Workmen(').

The question was whether the Alloy 'Steel Project, which was started in 1961 and went into production in 1964-65 and did not earn profits uptc 1967-68, was liable to pay bonus at the minimum rate under the Act for the year 1965-66. On behalf of the Alloy Steel Project, exemption from payment of bonus was claimed under section 16 (I) of the Act on the ground that it was a new establishment and had not made profits.

This Court held that the said Unit was not liable to pay even the minimum bonus, as claimed by the workmen, in view of the provisions of section 16 ( 1) of the Act. It is no doubt true that there is no reference in this decision to section 10. That is why we have stated earlier that a contention, similar to that advanced by Mr. Nair, was not raised before this Court.

The next question that arises for consideration is whether the Tribunal was justified in rejecting the claim for bonus for the years 1964-65 to 1966-67. We have already referred to the fact that Unit No. IV was started in July 1963, but production and

sale started only from 1965-66.

Therefore, the question is whether it is liable to be treated as part of the establishment of H.M.T. under section 3 or whether it is entitled to exemption from payment of bonus under section 16. We have already extracted section 3.

It is to be noted that the principal part of E section 3 lays down that different departments or undertakings or branches of an establishment are to be treated as parts of the same establishment for the purpose of computation of bonus under the Act.

From the main provision an exception is carved out by the proviso and there is a further exception to the proviso itself.

The sum and substance of section 3 is that an establishment initially takes in all establishments, undertakings and branches for the purpose of computation of bonus. But if, in respect of any department, undertaking or branch separate balance sheet and profit and loss account are prepared and maintained fOr any accounting year, then for that particular year; computation of bonus shqll be by treating it as a separate establishment. But this will be subject to a further exception that immediately before the commencement of that accounting year, namely, the accounting year in which a separate balance sheet and profit and loss account is prepared and maintained, such a department or undertaking or branch has not been treated as part of the establishmeii.t for the purpose of computation of bonus.

In this case Units I and II alone have been always treated together for the purpose of computation of bonus. All the other three Units and

. (!) [1971] 35. C. R. 629

WORKMEN H.M.T. v. PRESIDING OFFICER (Vaidia/ingam, !.) 863

the Watch Factory at Bangalore have each been treated separately and each of them has been having a separate balance sheet and profit and loss account.

This is the evidence on record, which has been accepted by the Tribunal. We see no reason to differ from this finding.

The Controller of Finance of the management, MW 1, has given in detail the various dates when these several units were started and production and sales began.

He has deposed that H.M.T. Units Nos. I and II at Bangalore were alone treated as one for the purpose of maintenance of accounts and that H.M.T.

Units Nos. III, IV and V and the Watch Factory were all having separate and independent profit and loss accounts and balance sheets. This practice has been followed from the inception of the different Units. A consolidated balance sheet and profit and loss account was only being prepared for the purpose of the Companies Act. There is no evide, nce 1hat any of the units or undertakings fell within the exception to the proviso in section 3 and that in such branches, immediately before the commencement of the accounting year 1964-65, separate balance sheets and profit and loss accounts for purposes of computation of bonus were prepared and maintained.

If that was the case, it may well be stated that the appellant-unit was treated as part of the establishment, in this case the H.M.T., for purposes of computation of bonus. In fact the evidence of MW 1 is that no pront bonus was ever paid to any of the employees of even H.M.T. Units Nos. I and II prior to 1964:65. What was paid was only production bonus on the basis of individual performance. Section 3 is the key to the Act, as it fixes the property whkh is to provide the allocable surplus for the distribution of bonus in terms of the Act.

As the different Units in this case had been treated separately kt the purpose of computation of bonus and separate balance sheets and profit and loss accounts had been prepared in respect thereof, the Units will not lose their separate identity as establishments because of the main provision of section 3 (see Delhi Cloth & General Mills Co. Ltd. v. Workmen('). As Unit No. IV is a different establishment coming under the proviso and not falling under the exception to the proviso to section 3, the main part of section 3 will not assist the appellants.

Then the question is regarding the applicability of section 16.

The evidence of MW 1, which has been accepted by the Tribunal, is to the effect that Unit No. IV was started in July 1963 and production and sale commenced only from 1965-66.

Section 16 ( 1 ) grants exemption from payment of bonus to establishments newly set up for a period of six years following the accounting

(!) [1972] (1) S. C. R. 594.

year in which the goods produced or manufactured are sold for the first time and, in th~ alternative, upto the year when the new establishment results in profit, whichever is earlier. Unit No. IV is to be treated as an establishment newly set up, as contemplated under section 16 (I). If so,, the exemption claimed would be fully justified because the contingency contemplated under subclause (a) or ( b) of section 16 (I ) has not happened during the relevant years, 1964-65 to 1966-67. Even if Unit No. IV is considered to be a new department, undertaking or branch set up by the existing establishment, namely, the Hindustan Machine Tools Ltd., section 16 (2) makes the provisions of sub-section ( 1) apply to such units. The proviso to sub-section (2) of section 16 does not stand in the way of the management's claim for exemption because there is no evidence that for any year, after Unit No. IV was set up, bonus was paid to the employees of all the Units on the basis of consolidated profits of all such Units. In fact the evidence, as we have already stated, is contra.

No doubt it is in evidence that the employees of the Head Office have been treated at par with the employees of Units I and II at Bangalore.

In the case of the Head Office, calculation of bonus on the basis of consolidated accounts is justified; but that ooes not affect the principle to be applied to the separate units for which separate accounts, separate balance sheets and separate profit and loss accounts are maintained. The proviso to sub-section (2).of section

16 will come in tire way of the management only if bonus is paid" in any year to the employees of all the Units on the basis of the . E consolidated accounts.

That is not the evidence in this case.

We may also state that the evidence in this regard has been very elaborately considered by the Tribunal and we agree with the conclusions arrived at by it. Therefore, the exemption claimed under section 16 (I) by the management for the years 1964-65 to 1966- 67 in respect of Unit No. IV, the appellant, has been correctly accepted by the Tribunal. This disposes of the points raised by the appellant in the appeal.

We have already referred to the permission granted by this Court by its order dated February 24, 1970, to the respondents

to. attack certain findings.

Accordingly the respondents have G attacked two of the findings recorded by the Tribunal which we have set out earlier. For the accounting year 1963-64. which is the pre-Bonus Act period, the direction of the Tribunal is that Unit No. IV, the appellant, is to get bonus on the basis 0f 1he

consolidated profit and loss accounts of all the Units in the same manner as was paid to the Watch Factory and H.M.T.

Units H Nos. I and II for the said year.

The Tribunal has recorded a finding that during this period there was unity of ownership, management and control and also functional integrality and.

therefore, all the Units as well as the Watch Factory have to be termed as one establishment and bonus will have to be calculated according to the Full Bench Formula on the consolidated p.tofit and loss accounts of all the Units. This finding is attacked by Mr. G. B. Pai, learned counsel for the respondents. But it is not necessary for us to consider the correctness or otherwise of this finding in view of the fact that we are accepting another contention of his relating to this year. According to the learned counsel the evidence that has been accepted by the • Tribunal itself, clearly shows that there was no profit bonus paid prior to 1964 65 to either H.M.T. Units I and II or the Watch Factory in Bangalore. It was only from and after 1964-65 that bonus was paid to those Units in accordance with the Act. Mr. Pai's COll tention is supported by the evidence of MW 1.

From the evidence of this witness it is clear that no profit bonus was paid to the above Units prior to 1964-65 and what was paid was only production bonus based on individual performance. Apart from the evidence of this witness, there is also an agreement Exl. 3 dated August 10, 1962, between the management and the workmen of Units Nos. I and II at Bangalore. That agreement provides for payment of deferred annual bonus.

The quantum of such bonus as well as the circumstances under which it is to be paid to each worker, has also been detailed in the said agreement.

The Tribunal, unfortunately, missed these items of evidence and has proceeded on the assu_mption tbat profit bonus for the year 1963-64 was paid to the workmen of these Units on the basis of the Full Bench F'ormula.

This reasoning is erroneous.

Hence the direction of the Tribunal that profit bonus is to be paid to Unit No. IV, as was paid to the Units at Bangalo1e, is clearly erroneous, as it is totally unworkable. Even otherwise the find-_ ing of the Tribunal that all the Units were treated as part of one F establishment for purposes of bonus for the year 1963-64, is also •erroneous. For the above reasons, the direction of the Tribunal for payment of bonus for the year 1963-64 to Unit No. IV has to be set aside.

The second finding that has been attacked by Mr. Pai is the statement, contained in paragraph 25 of the award that, it appears from Ext. A ( 2) , the balance sheet and the profit and loss account for the year 1963-64, an amount of Rs. 18,80,902/- was paid as bonus to the employees of the Watch Factory and Units Nos. I and II at Bangalore. A persuai' of the entry in' Ext. A(2) shows that the particular entry regarding this amount relates to payments made to Units Nos. I and II and not to the Watch FaC.. tory. It will be seen that no claim whatsoever was put forward before the Tribunal by the workmen of the Watch Factory. We have already referred to the stand taken by the workmen of ~

Watch Factory, who were getting bonus at the maximum rate, A that they wanted the claim of the other unions for bonus on consolidated balance sheets and profits and loss accounts to be rejected,.

In the result the appeal is dismissed. The finding recorded against the management on the points referred to above are also set aside. The position will be that the claim of the appellant, 8 Unit No. IV, for payment of bonus for the years 1963-64 to 1966-67 will stand rejected. There will be no order as to cJsts.

G.C.

Appeal dismissed. c

THE WORKMEN OF H.M.T. & ANR

A. ALAGIRISWAMI

I. D. DUA

Paynient of Bonus Act, 1964

s. 16(1)

s. 10

Kerala

Bangalore

s. 10

Payment of Bonus Act, 1964

s. 10

s. 16

section 16

Section 16

section 10

Section 16( 1)

section 16

section 16

section 16(1)

section 10

section 10

section 10

1971 3 S.C.R. 629

section 3

section 3

section 16(1)

[1972] 1 S.C.R. 594

CIVIL APPELLATE JURISDICTION

F N. Sreekantan Nair

Urmila Kapoor

K. Bansal

G. B. Pai

P. P. Bopanna

K. N. Bhatt

M. M. Ksh11triya

Ambrish Kumar

M. V. Goswami

VAIDIALINGAM

Central Government

Schedule I

Schedule II

Hyderabad

section 7B

section 10

Industrial Disputes Act, 1947

National Tribunal of Calcutta

S. K. Sen

Hindustan Machine Tools II, Bangalore

Schedule I

Kalarnassery

Hindustan Machine Tools Limited

Pinjore

Haryana State

Hyderabpd

Schedule II

Schedule II

Schedule

II

Schedule II

Payment of Bonus Act, 1965

Kalamassery

Schedule II

Schedule II

Since during the Bonus Act

Payment of Bonus Act

Hindustan Machine Tools Ltd.

Hindpstan Machine Tools

February 24, 1970

N. Sreekantan Nair

Nair

section 10

section 16

G. B. Pai

section 16

Section 10

.Pinjore

Haryana

section 16

section 1

section 2

Section 3

Section 8

Section 13

sections 8 and 13

sections 3 and 13

Section 11

Section 16

section 33

Income-tax Act

29th May, 1965

section 20

section 20

section 10

section 10

sections 8 and 13

sections 8 and 13

section 16

section 10

Section 16

section 16

section 10

sections 8 and 13

sections 8 and 13

section 10

section 16

Section 10

Section 16

section 10

section 16

section 10

section 11

section 16

section 8

section 10

section 11

Section 16

section 16

section 16

section 16(1)

section 10

section 16

section 16

section 10

section 10

section 10

section 16

section 16

section 10

section 3

section 16

section 3

section 3

section 3

Companies Act

section 3

Section 3

section 3

section 3

section 3

section 16

Section 16

section 16

section 16

section 16

section 16

section

16

section 16

Pai

August 10, 1962

Pai


CHAGANTI KOTAIAH & ORS.

GOGINENI VENKATESHWARA RAO & ANR.

April 3, 1973

[A. ALAGIRISWAMI, I. D. DUA AND C. A. VAID!ALINGAM, JJ.]

Code of Criminc.:l. procedure (Act S o1 1898) s. 439-Revision against acquittal by private party-Powers of High Court.

In connection with the murder of two persons and injuries sustained by some prt>secution witnesses, 30 persons were tried by the Sessions Court for offences under ss. 148, 302 read with s. 149 or altematively,. under s. 302 read with s. 34 and ss. 323, 324 and 326 I. P. C. The trial court C\, nvicted 8 of them Of some of the offences but acquitted them Of th_e other offences, and alo acquitted the remaining 22 accused of all the charges. The co, nvicted 8 accwed filed appeals before the High Court. The State had not filed any appeal but, one of the prosecution witnesses, as a private party, filed a criminal revision challenging thecon1plete acluittal of the 22 accused as well as the acquitt'3.l of the 8 convicted persons of the other charge5.

The High Court set aside the judgment of the trial court and remanded the entire case for retrial.

Allowing the appeals to this Court, HELD : The order of the High Court in the revision case should: be set aside nnd the appeals filed by the 8 accused should be remanded to the High Court for disposal according to law.

[8770-H] The entire approach of the High Court in dealing with the criminal: revision was contrary to the principles laid down by this . Court and" the interference in revision by the High Court was unjustified. [S76C-D]

(a) On the evidence on record, it could ,, ot be said that the acquittal of the 22 .1ccused or of the 8 accused on some of the charges was not justified.

[877D-E] lb) Notwithstanding the fact that s. 439(4), Cr. P.C., does not authorise the High Court to convert a finding of acquittal into one of conviction, it has in the present case, in fact contravened this provisiorr by recording a finding of guilt against the accused and directing thetrial court to convict them aft.er retrial. The High Court missed the important hmitations on its power and set aside the finding of acquittal,. in revision, which could be done only in very exceptional circumstances. [876C-D, Hf ( c!) The detailed consideration of the evidence by the High Court and expression of opin-ion about the guilt of the accued has really loaded the dice against the accused when the case would go back for retrial.

[877A-BJ ( d) The High Court had admittedly not considered the grievance of the 8 convicted accused in their criminal appeals. [8750) ( e) There is no question of lac'I< of jurisdiction ill the trial coui:t to try the case.

Nor was any attack made that any evidence had been.

H shut out at the trial. [876D-E, F-0]

(f) There was no shutting out at the trial of any evidence whiclr !he prosecLotion wanted to adduce or the defence wanted to lead. All

ava able evidence had been let in by both. The mere fact that theirial court held that a dyi:ng declaration was not relevant while rons'idering the att"ack on another person did not amount to shutting out evidence at the trial. [876E-F]

(g) It could not be said that there has been any glaring defect in the procedure or a manifest error on a point of law leading to a ftagrat'\t miscarriage of justice.

[876G]

(h) It could l><Jt also be said that the trial court did not consider B the alternative charges under s. 34 and s. 149. The trial court had held that in view of the definite case of the prosecution and the nature of the evidence, none of the accused could be held constructiveh liable . . [S77B-Cj

K. C'1in11aswamy Reddy v. State of Andhra Pradesh, [1963] 3 S.C.R. 412, Maliendra Pratap Singh v. Sarju Singh & Anr. [1968] 2 S.C.R. 287, Khetrabc.si Sama! etc. v. State of Orissa etc., [1970] 1 S.C.R. 880 and C Amar Char.d Agar.Valla v. Shanti Bose and Another etc., Criminal Appeals Nos. 101-103 decided on 22-12-1972, fellowed.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 173 & 174 of 1970.'

Appeals by special leave from the judgment and order dated August 25, 1970 of the Andhra Pradesh High Court at Hyderab1d in Criminal Revn. No. 727 of 1969 and Cr. A. Nos. 201 and 202 of 1969.

P. Basi Reddy, K. R. Chaudhuri, Gopalakrishna Munhy and K. Rajendra Chaudhuri, for the appellant (in both the appeals).

T. V. S. Narasimhachari and K. Jayaram, for respoudent No.

E 1 (in Cr. A. No. 173).

P. Ram Reddy, P. Parameshwara Rao, for respondent Ne). 2 (in Cr. A. No. 173) & for respondent (in Cr. A. No. 174).

The Judgment of the Court was delivered by

VAIDIALINGAM, J.

These two appeals, by special kave, are directed against the judgment and order dated August 25, 1970, of the High Court of Andhra Pradesh in Criminal Revision Case No. 727 of 1969 and Criminal Appeals Nos. 201 and 202 of 1969, setting aside the judgment of the Second Additio1d Sessions Judge, Guntur, in Sessions Case No. 121 of 1968 nd remanding the entire case for retrial.

In connection with the murder of two persons, Gogineni Koteswara Rao and Venigand!a Ratnababu, and the injuries sus- tained by the prosecution witnesses, PWs 5 to 7 and 13, on August 16, 1968. thirty persons were tried by the learned Sessiom Judge of Guntur for offences under section 148 and section 302 ; ead with s. 149 or alternatively under section 302 read with se:-

tion 34 and sections 323, 324 and 326 of the Indian Penal Code.

The learned Sessions Judge found that accused No<. 5 to 7, 14, 18, 19, 24 and 25 had participated in part of the o;; currence that took place on that c4Y and convicted the under section 148. The 5th accused was convicted under section 302 for causing the death of Ratnababu and was sentenced to undergo imprisonment for life. Accused Nos. 6 and 7, who were found guilty of causing simple injuries to Ratnababu, were convicted under section 324 .. Accused Nos. 14, 19, 24 and 25 were found guilty of causing injuries to PW 7. Accused No. 25 was conviCted under section 323 while the three others were convicted under setcion 324. Accused No. 1$ was found guilty of causing. injuries to PW 13 and convicted under section 324. Sentences of imprisonment of varying terms were imposed on the accused found guilty under sections 323 and 324. A sentence of rigorous imprisonment was also imposed on all these eight accused for the offence under section 148. The sentences of imprisonment were directed to run concurrently.· The learned Sessions Judge found that none of the accused can be held guilty of the offence of causing the death of Koteswara Rao nor for the injuries sustained by PWs 5 and 6. Accordingly he acquitted the eight convicted accused of all the other charges. Similarly he also Jound that. the other twenty-two accused were not guilty of any of the offences with which they were charged and accordingly acquitted them.

Accused No; 5 challenged his conviction before the High Court in Criminal Appeal No. 201 of 1969. The other seven E . convicted accused, namely, accused Nos. 6, 7; 14, 18, 19, 24 and .

25, filed Criminal Appeal No. 202 of 1969.

One Gogineni Venkateswara Rao, who gave evidence.as PW 7 and who was a brother of the deceased, Koteswara Rao, filed Criminal Revision Case No. 727 of 1969 under sections 435 and 439 of the Code

of Criminal Procedure before the High Court against all the thirty accused challenging the several acquittals recorded against them by the learned Sessions Judge.

The High Court allowed . the two Criminal Appeals as well as the Criminal Revision and after setting aside the judgment of the Sessions Court, remanded "the entire case for retrial.

Criminal Appeal No. 173 of 1970 is by all the thirty accused against the order in Criminal Revision Case No. 727 of 1969; while Criminal Appeal No. 174 of 1970 is by the eight accused, who had been convicted for different offences under sections 302, 148, 323 ; ind 324.

Mr. Basi Reddy, learned counsel for the appellants in both . the appeals, has attacked the judgment of the High Court on the ground that the High Court has exceeded its jurisdiction in order- H ing a rtrial at the instance of a pri'.'ate party, namely, PW 7.

Accordmg to the learned counsel, the Judgment of the Trial Court . does not suffer from any of the infirinities the existence of which alone gives jurisdiction to a High Court under exceptional cir-

,970.

SUPREME COURT REPOJ.TS

(1973] 3 S.C, R.

cumstances to interfere under its revisional jurisdiction at the instance of a private party. It was further urged that there has been no consideration of the appeals filed by the eight accused, who had been convicted of certain offences.

The reasons given by the Trial Court for acquitting completely the twenty-two acocused and for acquitting the eight convicted accused of certain other offences were fully supported before us. It was finally .ilrged that no case had been made out for interference by the High Court in. its revisional jurisdiction and the proper approach should have been to dispose of on merits the two Criminal Appeals filed by the eight convicted accused.

On the other hand, Mr. Narasimhachari, learned counsel .appearing for PW 7, who filed the Criminal Revision, no doubt attempted to support in full the order of retrial passed by the High Court.

We should frankly say that he found considerable difficulty in supporting the wholesale retrial ordered by the High Court. But the learned counsel presse; i before us for acceptance 'the infirmities pointed out by the High Court in the reasoning of the learned Sessions Judge which, according to him, iustified at least a reconsideration of the whole matter by the Trial Court In particular it was stressed that >there has been no consideration by the Trial Court of the constructive liability of the accused of the various offences with which they were charged read with section 34 or in the alternative, section 149. The reasons given by the Trial Court for holding that the dying declaration, Ext.

P 15, made by Ratnababu cannot be treated as eviCience regarding the attack on Koteswara Rao, are erroneous in law. By this reasoni11g the Trial Court has really shut out that piece of vital evidence 'from consideration. These are some of the aspects that have been stressed for sustaining the order of the High Court. As the State is a. party in the appeals before us, we have heard its counsel, Mr. Ram Reddy, merely to assist us. Mr. Ram Reddy ha> also supported the above reasons and has urged that these circumstances clearly show that there has beeri no proper trial before the learned Trial Judge. In view of the very serious infirmities in the reasoning of the Trial Court, the only proper course to be adopted-and which, according to him, has been rightly adopted by the High

Cout1-'is to have a retrial.

In the view we 1ake that the order of the High Court ordering a retrial cannot be sustained and the two Criminal A pp ea ls filed bv the eight convicted accused will have to be sent b'ack to the High Court for being heard and disposed of on merits.

We do not think it necessary to very elaborately deal. with the various items of evidence on record as also the reasons given by the learned Sessions Judge. In order not to prejudice the hearing of the apperl.s by the High Court, we retrain also from making any com-

CHAGANTI KOTAIAH v. G. v. RAO (Vaidia/ingam, J.) 871

ments or remarks about the nature of the evidcmce adduced by the prosecution as well as the criticism of the same by the -accused.

It is now necessary to broadly state the. case of the prosecution as well as the findil)gs recorded by 'the learned Sessions Judge.

In the village of Visadala there were two factions, one led by the 3rd accused and the other by PW 23, a brother of Koteswara Rao, one of'the deceased. All the thirty accused belong to the party of the 3rd accused.

The 2nd accused was the Sarpanch of the village and the 1st accused was the acting Village Munsif at the time of the occurrence i.e. August 16,'1968. PW 23 was the President of the village Panchayat from 1956 to 1964 after which period the 2nd accused came to power. There was a mu!tj-purpose Cooperative Society established in 1963 in the village a.nd the mernbrs o.f l:joth 1he factions claimed to be the President or Secretary of this society. This rival claim was the

subject of Writ Petitians in the High Court. The 1st accused the acting Village Munsif at the time of the occurrence and his appointment was bitterly resented by the oppo5ite group. All

0 this clearly show that was acute bitterness and rivalry between the members of the two groups.

The proseculion case is as follows : On the morning of August 16, 1968, PWs 5 and 6 who are brothers and who had taken• a land on lease for cultivation, raisad a cross-bund in the canal for the purpose of diyerting water to their field.

Some time later, accused Nos. 2, 6 and 21 came and asked PWs 5 and 6 to remove the cross-bund but they refused.

The third accused loft the place abusing the two witnesses. About 12 Noon on the same day, PWs 5 and 6 noticed that there was diminuHon of water in the canal. At that time Ratnababu, who was coming along-side the canal, was asked by these witnesses to plug amy leakage near the cross-bund. Ratnab)lbu accordingly was trying to Close the leakage when all the thirty accused, who belonged to one faction, came to that place armed w'.th different weapons. The !st accused stabbed PW 5 with a spear both on his chest and on his temple. The 6th accused stabbed PW 5 on the right palm and the right wrist. The 3rd accused beat PW5 with a spear on his hand.

When PW 6 interfered, he was stabbed with a spear on the left chest by A-27 and was also beaten on the head back and leg by A-21. All the accused then.ran towards Ratnababu, who was plugging the hole in the siphon. Ratnababu. on seeing the accused coming towards his direction, ran to the field of PW 23 where Koteswara Rao with his brother, PW 7, was working.

Accused Nos. 1 to 4 stabbed Koteswara Rao QD, the various parts of his body with spears and after he fell down. they along with A 12, A 13, A 22 and A 23 inllicted further injuries. When PW- 7 attempted to interfere to save his brother, he was attacked by A 14, A 19, A 24 and A 25. He was also kicked by A 20. Some

of the accused turned their attention on Ratnababu. A 5, A 6, A 7, A 8 and A 10 inflicted spear injuries on Ratnababu. When PW 13 came to help Ratnababu, he was speared by A 18.

All the accused !hen ran away from the place.

PW; ! to 4 had witnessed the entire occurrence.

Koteswara Rao was removed to his house in the village and he died within a very _short lime.

Ratnababu was taken to the Government General Hospital, Guntur and, as his condition was very serious, a dying declaration, Ext. PIS, recorded by the Magistrate, PW

16, at about 8.40 P. M., the same day. Ratnababu died at 1. 29 A.M. on .August 17, 1968. The Magistrate had also recorded a statement, Ext. P 1, from PW 5 and a statement, Ext. P 16, from A 30. At this stage it may be mentioned that the witnesses, who C

received injuries, namely, PWs 5, 6, 7 and 13 as well as some of the accused, who had received injuries, namely, A 5, A 14, A 29 am! A 30, had all arrived at the Government General Hospital, Guntur, at about the same time and were treated by the same doctor.

There is on record the wound certificates issued in respect of these persons. Apart from the wound certificate issued to Ratnababu, at the time of his admission to the Hospital there is also the description of the injuries sustained by him, as mentioned in the postmortem certificate.

There is also on record the postmortem certificate issued to the other deceased, Koteswara Rao, which also shows that he had sustained a number of injuries.

Most of the accused. when they were examined under section 312, pleadeJ complete ignorance about the occurrence. The 5th accused, however pleaded that on the date of the occurrence he, along with Al4 and A30, had gone to water the field of A30.

Near the cross-bund they .found PWs 5 to 7, 13 and 23, the deceased Ratnababu and certain others. A 30 requested PW 23 to remove the cross-bund to enable him to take water to his field.

On their refusal A30 attempted to remove the cross-bund when at the instigation of PW 23 he was stabbed by one Appa Rao and als"

attacked by PW 23.

PW 23 also beat him and ran away. A 14 stated that he was beatn at the cross-bund by PW 23. A 29 also pleaded that he smtained injuries at the cross-bund when he was with AS. A 14 and A30.

A30 also gave a somewhat similar statement.

Thus it will be seen that while according to the prosecution the occurrence took place Ln two stages, one at the place where the cross-bund was erected and the other in the field of PW23, on the other hand, accordin~ to the defence, the occurrence had taken place at the place where the cross-bund was raised by PWs S and 6 and that there was no incident whatsoever near the field of PW 23. The learned Sessions Judge made a local inspection of the s; ene of occurrence and has also noted his observations. It

will be seen that according to the learned Sessions Judge the field of PW 23 was at a distance of 290 yards, as the crow flies, from the place of the cross-bunding. He has further noted that there

was a donka which was about five feet lower in level compared to tl\e neighbouring fields and that it would not have been possible for the accused, who were at the crosi:-bund, to see wnd identify anybody who may have been near the donka.

The learned Sessions Judge, after a consideration of the dying declaration of Ratnababu, Ext. P 15, and other evidence, is of the view that the prosecution case of Ratnababu running from the siphon to the field of PW 23 and that he was chased by the accused, .is improbable. It is the view of the learned Judge that •the prosecution has not come forward with the truth as to how the accused, after the occurrence at the cross-bund, happened to be near the field of PW 23. Regarding the occurrence at the crossbund, the court's view is that there is the evidence of only PWs 5 and 6.

Though PWs 5 and 6 had received injuries, they have not said anything as to how accused Nos. 5, 14, 29 and 30 sustained injuries. These accused also have sustained injuries at the same time as PWs 5 and 6 and at the same place, namely, the crossbund. The prosecution has stressed as to how these accused received injuries. In view of these and other circumstances, the finding of the learned Sessions Judge is that these four accused had acted in self defence at the incident that took place at the cross-bunding by PWs S and 6. The injuries sustained by PWs 5 and 6 being of a very minor nature sustained by them wnen the said accused acted in self defence, none of those accused are guilty of any offence regarding this particular incident.

Regarding the second stage of the occurrence at the field uf PW 23, the Trial Court's view is that the witnesses, who spoke to the same, are PWs 1 to 4, 7 and 13. PWs 7 and 13 had (eceived injuries. After a consideration of the evidence of PWs 1 to 4, the learned Judge expresses the view that they are tutored witnesses and that they have been selected because they belong to the party of PW 23.

The learned Judge disbelieved their evidence and eschewed the same from consideration.

Left with the two other Witnesses, namely, PWs 7 and 13, the Trial Court is of the view that they being interested witnesses, their evidence will have to be treated with great caution and that it would be safe to accept their evidence only if it is corroborated biy other independent evidence.

Ultimately the learned Judge held that their evidence cannot be accepted regarding the atltack on Kuteswara Rao.

Having regard to the evidence adduced in the case, the'learned Judge has recorded. a finding that nOille of the accused can be held liable for the offence of causing the death of Kuteswara Rao.

S~L 797Sup.C. I. /73

But so far as the attack on Ratnababu was concerned, the learned Judge took into account the evidence of PWs 7 a.nd 8, the medical evidence as also the dying declaration, Ext. P 15 and convicted accused Nos. 5 to 7, 14, 18, 19, 24 and 25 in the inanner mentioned by us earlier.

The learned Judge has also given reasons as to why some of these accused are not guilty of the CYlher offences with which they were charged and also for B acquitting the rest of the tweritytwo accused.

The learned Judge has also given the reasons for convicti1ng some cf the accused only under sections 323 and 324.

The learned Judge's further view is that though certain charges had been framed read with section 34 or alternatively with 149, in the manner in which the incident has ul'tima1ely been found to have happened, there is no c scope for making any of the accused constructively liable under these provisions.

We have already mentioned that it is only the convicted eight accused, who had filed two different appeals before the High Court challenging their conviction. The State had not filed an appeal under section 417 .of the Criminal Procedure Code, either challeng- 0 ing the acquittal of these eight accused of fue other offences or against the acquittal of the remaining twentytwo acused of all the charges. We are particularly mentionin11 this aspect because if the State had filed such an appeal, the nature of jurisdiction exercised by the High Court will be entirely different.

On the other hand, it was the brother of one of the deceased, namely, PW 7, who had filed, as a private party, a Criminal Revision E challenging the complete acquittal of the twentytwo accused as well as the acquittal of lhe eight convicted persons of the other charges.

After a review of \he earlier decisions, the extent of the jurisdiction of the High Court in the .matter of interfering in revision F against an order of acquittal has been laid down by this Court in K. Chi1111aswamy Reddy v. State of Andhra Pradesh(') as follows :

"It is true that it is open to a High Court in revision to set aside an order of acquittal even at tlle instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases when there is some glaring defect in the procedure' or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice.

Sub-section ( 4) of s. 439 forbids a High Court from converting a finding o( acquittal into one of conviction and that makes it all the more incumbent on

(I) (1%3] (3) S. C.R. 412.

the High Court to see that it does not convert the finding of acquittal into one of c0nviction the indirect method

of ordering retrial, when it cannot itself directly . convert a finding of acquittal into a finding of conviction.

This places limitations on the power of the High Court to get aside a finding of acquittal in revision and it is only in exceptional cases :hat this' power should be exercised. It is not possible to lay down the crileria

for determining such exceptiOlllal cases which would cover all contingencies. We may however indicate some cases oi this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision.

These cases may be : where the trial court has no jurisdiction to try the case but has still acquitted the accused, or where the trial court has wrongly shut out evidence which the proseculion wished 10 produce, or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cas~ of exceptional nature, where tfhe High Court can justifiably

interfere with an order of acquittal; and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of s. 439 ( 4) ." The above principles have also been reiterated in Ma/Jendra Pratap Singh v; Sarju Singh & Anr.(1), Khetrabasi Sama! etc. v.

State of Orissa etc. (2 ) and Amar Chand Agerwalla v. Shanti Bpse and Another etc. ( 3) .

We have, therefore, to see whether the order of the High Court setting aside the order of acquittal of the eight convicted accused of certain charges as well as the acquittal of the remaining twentytwo accused of all the charges can be upheld on the above principles.

The High Court has admittedly not considered the grievance of the eight convicted 11-ccused in their Criminal Appeals Nos. 201 and 202 of 1969. A perusal of the Judgment of the High Court shows that it has mainly dealt with the Criminal Revision filed by the private party. In that context, it as considered the .ma!eial evidence in some detail and has practically .expressed an opmmn against the accused in some respects.

It has practically . given a finding that all the thirty accused will have.to be convicted under

(I) [196i] (2) S. C. R. 287.

(2) [1970] (!} S. C. R. 880. ·

(3) Criminal Appeals Nos. 101-103 decided on 12-12,1972.

section 302 read with either section 149 or at any i;.tte section 34.

It has held that the dying declaration of Ratnababu, Ext. P 15, is admissible even regard.mg the attack on the other deceased, Koteswara Rao. The High Court has also expressed its opinion that Ext. P 15 establishes, on the facts of the present case, that accused Nos. 1 to 4 attacked Koteswara Rao and caused his death. The

Hiah Court's view also appears to be that the search or corroboratio;;, made by the Trial Court regarding the evidenci:i of some of ·

the prosecution witnesses was unnecessao/. Even some of. the convicted accused should have been convicted for more senous offences. More or less on this reasoning, the High Court remanded the entire case for retrial.·

. We are of tlte opinion that the entire approach made by the High Court in dealing with the Criminal Revision filed against acquittal by the private party is contrary to the principles laid down jn the decisions referred to above.

Notwithstanding the fact that sub-section ( 4) of section 459 does not authorise the High Court to convert a finding of acquittal into one of conviction, it has in fact contravened this provision by recording a finding of guilt against the accused and directing the Trial Cou.1:t to convict them after a retrial.

There is no question of lack of jurisdiction in the Trial Court to try the case; nor was any attack made that any evidence has been shut out at the trial. Whether the dying declaration, Ext. P 15, by Ratnababu can be taken into account regarding the attack on Koteswara Rao, is a matter which the Trial Court was entitled to decide one way or the. other. If its view was wrong, the High Court could have gone into that aspect and differed from this opinion of the Sessions Coui:t if the State had filed an appeal against acquittal. Further the mere fact that the learned Trial Judge he_ld that this piece of evidence is not relevant, while considering the attack on Koteswara Rao, does not amount to shutting out of evidence at the trial. In fact that evidence has already come on record .. Therefore, in this case there has been no shutting out at the trial of any evidence which the prosecution wanted to adduce or the defence wanted to lead. All available evidence has been let in by both the prosecution and the accused.

Nor can it be stated that there has been any glaring defect in G the proceure or a manifest eiror on a point of law and consequent!'!' leadmg to a flagrant miscarriage of justice. As mentioned earlier, sub-section ( 4) of section 439 forbids a High Court from converting a finding of acquittal into one of conviction by an indirect. mcthod of ordering retrial when the High Court itself cannot drrectly convert a finding of acquittal into a finding of conyiction. TJz.e .Hi!111 Court: in our opinion, has missed tllese very 1mpo!1ant. lmut:;.ons o~ its power to set aside. ithe finding of

acquittal m revISion which could be done only 10 very exception-

CHAGkNTl KOTAIAH v. G. v. RAO (Vaidialingam, !.) 877

al circumstances. In the case on hand, the High Court was not justified in considering the evidence in sµch detail if it was really going ¢0 order a retrial. Such a detailed consideation of evidence and an expression of opinion aboµt the guilt of the accused, in our opinion, has really loaded the dice agaimt the acclised when the case goes back for retrial. Much stress has been laid by the High Court that though substantive charges had been framed against the accused read with section 34 or alternatively with section 149 IPC, the Trial Court has not recorded any finding in this regard.

Here again, the High Court's view is erroneous.

We have already referred to the finding recorded by the Trial Couit that in view of the definite case of the prosecution and the nature of the evidence, none of the accused can be held constructively liable. It is on that ground that the Trial Court has not found rthe accused constructively guilty.

We have indicated the reasons, which prompted the High Court to order a retrial.

The consequence of this will be to put considerable strain on the accused who have already gone through a trial at considerable stress and expense.

After going through the .iudgment of the learned Sessions Judge, we cannot certainly say, particularly in view of rthe evidence on record, that either the acquittal of the twentytwo accued or the acquittal of the eight convicted accused of rthe rest oJ' the charges was not justified. At any rate, it may be safely stated that the learned Sessions Judge has taken into account all the relevant circumstances.

It may be that there are slight mistakes in some of the reasons given by him but the judgment as a whole shows that he has really applied his mind to the various pieces of evidence before passing the order of acquittal in the manner he has done. In the particular circumstances of this case, the interference in revision by the High Court at the instance of the private party was not justified.

The two appeals filed by the convicted accused, namely, Criminal Anoeals Nos. 201 and 202 of 1969 have not been dealt with by the High Court on merits.

The appellllJtlts therein .have a right to have those appeals heard and dispossed oJ' by rthe High Court according to Jaw.

In the result, Criminal Appeal No. 173 of 1970 is allowed . and the judgment and order of the High Court in Criminal Revision Case No. 727 of 1969 a.re set aside and the said Criminal Revision will stand dismissed. Criminal Appeal No. 174 of 1970

is also allowed and in consequence Criminal Appeals Nos. 201 and 202 of 1969 filed by the eight accused are remanded to the High Court for hearing and disposal according to law.

V.P.S.

Appeal partl.v allowed.

CHAGANTI KOTAIAH & ORS

GOGINENI VENKATESHWARA RAO & ANR

April 3, 1973

A. ALAGIRISWAMI

I. D. DUA

s. 439

ss. 148, 302

s. 149

s. 302

s. 34

ss. 323, 324 and 326

s. 439(4)

s. 34

s. 149

[1963] 3 S.C.R. 412

[1968] 2 S.C.R. 287

[1970] 1 S.C.R. 880

Andhra Pradesh High Court at Hyderab1d

P. Basi Reddy

K. R. Chaudhuri

Gopalakrishna Munhy

K. Rajendra Chaudhuri

T. V. S. Narasimhachari

K. Jayaram

P. Ram Reddy

P. Parameshwara Rao

VAIDIALINGAM

High Court of Andhra Pradesh

Gogineni Koteswara Rao

Venigand!a Ratnababu

August 16, 1968

section 148

section 302

s. 149

section 302

sections 323, 324 and 326

Indian Penal Code

section 148

section 302

Ratnababu

section 324

section 323

section 324

sections 323 and 324

section 148

Koteswara Rao

Gogineni Venkateswara Rao

sections 435 and 439

sections 302, 148, 323

Basi Reddy

SUPREME COURT REPOJ.TS

(1973] 3 S.C, R.

Narasimhachari

section 34

section 149

Ram Reddy

Visadala

Munsif

Ratnababu

Ratnab)lbu

Koteswara Rao

Government General Hospital, Guntur

.August 17, 1968

section 312

Appa Rao

Kuteswara Rao

sections 323 and 324

section 34

section 417

s. 439

s. 439

section 302

section 149

section 34

section 459

section 439

section 34

section 149

IPC


REGISTRAR OF HIGH COURT OF

MADHYA PRADESH AND ANOTHER

JI.

B. A. NIGAM AND OTHERS April 3, 1973

[0, G. PALEKAR AND A. ALAGIRISWAMI, JJ,]

Madhya Pradesh Civil Courts Act, 1958-Service Rules-Experience a.r Civil Judge, Class.J, necessary qualification for promotion to the poM of Addi. District f.'nd Sessions Judge, and not the seniority.

The Respondent No. I, who was a Civil Judge in former Madhya Bharat, was, on absorption into Madhya Pradesh Judicial Service, treated a' Civ; l Judge, Class-II. The relevant Service Rules applicable to the Civil Judges recognised Civil Judges as only one Class but the M. P.

Civil Courts Act, 1958, mentioned two classes of Civil Judges namely, Civil Judges Class I and Civil Judges Class

II.

From the t; me when the Madhya Pradesh Civil Courts Act, 1958 C8llle into fOrce it was always considered by the High Court that for promotion to the post of Addi. District and Sessions Judge, it was a necessary qualification that the Civil Judge must have sonie experM:nce of working as Civil Judge, Chlss-1. Under the Act, the pecuniary jurisdiction of the Civil Judge, Class I was Rs. 10,000/- while that of Civil Judge.

Class II was Rs. 5,000/-.

In May 1968, the High Court passed as Reso1utio, o laying down that the seledtion of a Civil Judge, Class-II, as a Civil Judge Class I shall be deemed '" promotion and that being so,. only the cases of Civil Judges, Class-I, shall be considered for promotion :ls Addl. Drntrict and Sessions Judges in order of their seniority. The respondent was not found fit for promotion to the post of Civil Judge, Class-I in the successive selections.

He was finally 'found fit in 1968.

In a writ petition before the M. P. High Court, the Respondent No. 1 contended that the date of the seniority should count from the date of appointment to the post of Civil Judge Cfass-IJ and not from the date of promotion to the post of Civil Judge, Class-I. He also contended that the High Court Resolutio:t> of May 3, 1968, was illegal as there was no proviion in the Service Rules for classifying Civil Judges as Class I or Ciass II and the power to create various classes of services

\V'&S vested ir.. the Government, and not in the High Court. The 11. P.

High Court allowed the Writ Petition.

Allowing the State's appeal by certificate,

HELD : ( 1) On perusal of the High Court file regarding the selection of Class JI Civil Judges as Class I Civil Judges, it is clear that the decisions \Vere bona fide a;'nd on merits.

The Respondent No. 1 had no claim to Class I post before 1968, when for the first time he was found fit.

Once it is found that experience as Civil Judge Class I is a necessary qualification, the seniority in Class II service is of no consequence.

( 2) While it is true that the Service Rules do not provide for any distinction within Civil Judges, the difference in the pecuniary jurisdici; _, n cannot be ignored. The Resolution of the High Court of May 1968 should not be interpreted literally.

The resolution does not create a new class of Ci, il Judges called Class I Civil Judges but merely lays down the c:ualification or standard of fitness for higher promotion.

There is

REGISTRAR M.P. !UGH COURT v. B. A. N!GAM 879 (Alagiriswami, J.) no justification for re-opening cases closed for more than ten years at the instance of an officer whose record of service was not a shining one: compared to those who were selected earlier. [880A, 881G]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 624 of 1972.

Appeal by certifica'le from the Judgment and order dated August 8, 1971 of the Madhya Pradesh :ltigh Court at Jabalpur in Misc. Petition No. 537 of 1969.

I. N. Shroff, for the Appellants.

M. N. Phadke, Anthoney G. Menezes, P. G. Bhartari, I. B.

Dadachanji, 0. C. Mathur & Ravinder Narain, for respondent No. 1

The Judgment of the Court was delivered by

ALAGIRISWAMI, J.-In the Judicial Service of Madhya Pradesh there are three classes of officers, Civil Judges, Additional District

and Sessions Judges and District Judges but under the Madhya Pradesh Civil Courts Act, 1958 there are four classes of Civil Courts, the Coutt of the District Judge, the Court of the Addi.

District Judge, the Court of the Civil Judge (Class I) and the Court of the Civil Judge (Class II). The respondent No. I, Shri B. A. Nigam, entered service as a Civil Judge on 20-lG-1956 in Madhya Bharat. After Madhya Bharat became part of. Madhya Pradesh he was absorbed as a Civil Judge and placed for purposes of seniority at No. 189. From the time when the Madhya ?radesh Civil Court Act, 1958 came into force some period of service of a Civil Judge during which he exercised powers of Civil Judge, Class I, however, small, was considered a necessary qualification for promotion to the post of Additional District and Sessions Judge.

On or about May 3, 1968, by a resolution of the High Court it was laid down that selection of a Civil Judge, Class II, as a Civil Judge, Class I, shall be deemed as promotion and that being so, only the cases ol Civil Judges, Class I, shall be considered for promotion as Additional District and Sessions Judges in order of their seniority. It must be made clear at the outset that according to the Service Rules there is only one class of Civil Judges and not t\vo classes of Civil Judges (Class I) and Civil Judges (Class

II).

The fitness of the respQndent ( 1) for promotion as Civil Judge, Class I, seems to have been considered on a number of occasions i.e. on May 3, 1966, August 12, 1966, April 17, 1967, November 6, 1967 and April 18, 1968 and on each of these occasions he was not found fit to exercise powers of a Civil Judge, Class I. Mr. I. N. Shroff appearing for the appellants has also shown us the file containing the proceedings of the Judges' meetings of the High Court of Madhya P'radesh on the various dates abo_ve referred to in which the names of various officers for being

SUPREME COURT REPORTS

[1973] 3 S.C, R.

poS'led as Class I Civil Judges have been considered.

We have

crutinised them carefully and can see no reason to doubt the bona fide nature of the decisions therein made. The High Court has also taken the view that though the junior members in the cadre of Civil Judges had often been allowed to exercise the powers of Civil Judge, Class I, without considering at that time the respondent's claim and then those junior members had been preferred for promotion on the ground that they had exercised such powers, and such preference was open to attack as being violative ol the fundamental rights of the respondent, they could not assist him on that ground because even if his .claims for exercising the powers of Civil Judge, Class I had been considered at the appropriate time, he would not have been found fit for the purpose for the reason earlier mentioned.

While it is not impossible that if the respondell'l's case had been compared with that of others before the 3rd May, 1966 he might have been found fit for being posted as a Civil Judge, Class I, it is very improbable and we, therefore, agree with this conclusion or the High Court. Finally, on 30-11-1968 the respondent was found fit to be posted as a Civil Judge, Class I and he filed the petitioo, out of which this appeal arises, for consideration of his name for being promoted as an Additional District and Sessions Judge over the heads of all the people who had been earlier found to have better qualifications for being posted as Civil Judges, Class I in preference to him.

That petition having been allowed by the High Court his appeal has been filed by certificate by the Registrar of the High Court of Madhya Pradesh and the State against the judgment of that High Court.

In addition to the point which we have earlier mentioned and agreed with the High Court, his only other contention was that in the list of Civil Judges he was senior to all of them and as there was no provision in the service rules for classifying Civil Judges as Class I or Class Il and the power to create various classes of services was one which vested with the Government and not with the Hih Court therefore the resolution of the High Court of May 3, 1968 cannot affect him adversely. The High Court took the view that as for some years past, a principle for selection had been introduced that before a Civil Judge was promoted to the post of an Additional Districit and Sessions Judge, it was essential that he should have exercised the powers of Civil Judge, Class I, tor a period, however short and that principle had a rational relation to the suitability of Civil Judges for promotion to posts of Additional District and Sessions Judges and the respondent No. I could not legitimately complain, as he did not have that qualification, and he could not be selected for promotion only on the basis of seniority. They also took the view that sinee the respondent No. I had not acquired the qualification required for promotion,

REGISTRAR M.P. HIGH COURT v. B. A. N!GAM 881 (Alagiriswami, I.) !tis claim for such promotion should be regarded as having been considered and rejected by implication till November 30, 1968 when he was allowed to exercise the powers of Civil Judge, Class I.

Having held rightly, according to us, that till November 30, 1968 the respondent No. I was not qualified to be considered for promotion as an Additional District and Sessions Judge, the High Court curiously enough issued a writ of mandamus directing that the respondent's claim for promotion should be considered in relation to the claims of !tis juniors and if he was found fit he should be allowed the consequential benefits including fixing of seniority in the cadre of Additional District and Sessions Judges.

In mentioning about the juniors o.f the respondent No. I the learned Judges were referring to the original seniority in the cadre of Civil Judges,

Once it is found.that experience as Civil Judge, Class I, at least for a short period, is a necessary qualification for promotion as Additional District and Sessions Judge and that such a require ment has a rational relation to the que!ltion at issue, it would b surprising to hold that a man, who again and again had beei found unfit to be posted as Civil Judge, Class I, in comparison with others, who , were his juniors in service, his claim for promotion as Additional District and Sessions Judge should be decided not on the basis of the date on whlch he was found fit to exercise the powers of Civil Judge, Class I, but on the basis of the date of his entry into service. Out of the 41 people whom the respon dent No. I had made respondents to his petition, 10 people were found fit in 1962 and one in 1963. Then we have 3 others whose claims were considered on 3-5-66 alongwith that of the respondent No. I and found superior to his. There are 8 others whose claims were compared to the respondent's on 12-8-66 and found to be superior to his. Seventeen others, whose claims were compared to the respondent's on 17-4-67 were found to be superior to the respondent's and two were found superior to the respondent on 7-11-67. It would, therefore, be most surprising that a man who in comparison to all these people was not found fit to be promoted as Civil Judge, Class I, should as soon as he was found fit on 30-11-68 go over the heads of all the other who were found superior to him on a number of earlier occasions. While it is true that the Service Rules do not provide for Civil Judges being classed as Class I Civil Judges and Class II Civil Judges, we cannot ignore the fact that the jurisdiction of the Class II Civil Judges is onlv upto Rs. 5,000 and that of. Class I Civil Judges upto Rs. 10,000. The resolution of the High Court of May 1963 should not be interoreted literally.

If it is done in its proper background it would be aooreciated that what was done was not to create a new class of Civil Judges called Class I Civil Judges but to have a list of persons who were qualified to be posted as

SIJPREME COIJRT REPORTS

[1973] 3 S.C.R.

Class I Civil Judges and to provide that fitness for being posted as Class I Civil Judges and acting as such for some lime should considred as a qualification for promotion as Additional Distr~ and Sessions Judges. We have already Pointed out that the High Court has rigbtly held that such a provision cannot be said to be irrelevant to the question of promotion from among the Civil Judges to Additional District and Sessions Judges.

We 2re firmly of opinion that in the face of these circumS'lances to allow the respondent No. I to be considered for promotion as Additional District and Sessions Judge in preference to others who had been found. better qualified to be posted as Civil Judges Class I much earlier merely on the basis of the date of his entry into service would. be a mockery of all canons of fair play and justice. Indeed, we cannot help feeling that his being found fit for promotion to Class I Civil Judge on 30-11-68 seems to have been done more as a matter of grace and he should be more than happy to have got what he got. The fact that before 3-5-66 there might have been cases of Civil Judges being posted as Presiding Judges of Civil Courts Class I due to various exigencies of service cannot in any case affect the merits of this case. As we have already indicated, while it is not impossible it is improbable that compared to those people who had been posted as Class I Civil Judges before 3-5-66 the respondent No. I would have been found better qualified.

At any rate we can see no justification for reopening cases that had been closed more than 10 years ago at the instance of an officer whose record of service to say the least, is not shining one. We see no merits in his claim. We, therefore, allow the appeal and set aside the judgment of the Madhya Pradesh High Court. There will, however, be no order as to costs.

S.B.W.

Appeal aNowed.

B. A. NIGAM AND OTHERS

April 3, 1973

G. PALEKAR

A. ALAGIRISWAMI, JJ

Madhya Pradesh Civil Courts Act, 1958

Civil Courts Act, 1958

Madhya Pradesh Civil Courts Act, 1958

M. P. High Court

High Court Resolutio:t> of May 3, 1968

While it is true that the Service Rules

High Court of May 1968

I. N. Shroff

M. N. Phadke

Anthoney G. Menezes

P. G. Bhartari

I. B.

Dadachanji

C. Mathur

Ravinder Narain

ALAGIRISWAMI

B. A. Nigam

20-lG-1956 in

Madhya Bharat

Civil Court Act, 1958

May 3, 1968

May 3, 1966

August 12, 1966

April 17, 1967, November 6, 1967

April 18, 1968

High Court of Madhya P'radesh

3rd May, 1966

High Court of Madhya Pradesh

High Court of May 3, 1968

While it is true that the Service Rules

High Court of May 1963

Madhya Pradesh High Court