.STATE OF MADHYA PRADESH

LAXMISHANKAR MISHRA AND ORS. ETC.

March 29, 1979

[D. A. DESAI AND A. P. SEN, JJ.)

Madhya Pradesh Local Authorities School Teachers (Absorption in Government Service) Rules, 1963, Rule 3(b)-lnterpretation of the words "should have worked on the post for a minin1um period of 7 years''.

The Madhya Pradesh Local Authorities School Teachers (Absorption in Government Service) Act provided for absorbing teachers serving in Middle ·

Schools and Primary Schools managed by local authorities in Government service.

The relevant rule for absorption enacted under the Act in rule 3 and rule 3 (b) reod "" follows :

"3(b) For absorption on the post of Head Master/Principal of a High/

Higher Secondary School, the person concerned should possess the poet graduate degree and should have worked on the post for a minimum period of 7 years in the same institution and should have

10 years' teaching experience in any recognised institution of Madhya Pradesh".

On the question of interpretation of the words "should have worked on the post for a minimum period of seven years" the High Court was of the view that the period during which a Head Master fPrincipal worked as inobarge Principal ought to be taken into account for computing the period of 7 years.

Dismissing the special leave petitions by the State the Court,

HELD : 1, While computing the period of 7 years for the purpose of rule 3 (b) what is determinative is performing duties and discharging functions of the post of Head Master /Principal irrespective of the c..apacity in whick the

p~.at was hold. [635. CJ

2. The absorption of a person as Principal under rnle 3 (b) does not depend on rank but on the nature of functions and duties that is incumbent disch&rges for a particular number of years (i.e.) the duties of a Principal for a period of seven years. The language, in the instant case, indicates emphasis 011 work

being done while on the post irrespective of capacity. [635 B~CJ

Ramrattan v. State of M.P. and Ors., I.L.R. 1964 M.P. 242; State of Madhya Pradesh v. Ookul Prasad, [1971] M.P.LJ. 609; Giria Shanker v. S.D.0. Barda and Or.•., A.I.R. 1973 M.P. 104; distinguished.

3. On a pure grammatical construction of the expression. "should have worked on the post for a minimum period of seven years in the same institution",

it is clear that the person claiming to be absorbed must have worked on the post of Head Master/Principal Of a HighjHigher Secondary School i0r a minim11m period of 7 years, the emphasis being on the experience gained by working on the said post. A person in charge of the post also worb and

~·.

di,.licharges the duties and functions of the post of which he has taken charge.

A Even an officiating incumbent of the post does discharge the functions and duties of the post. If the rule expressly did not make any differentiation between the persons working as a confirmed holder of substantive post and an incharge or officiating holder of the post, there is nothing in the expression itself which by necessary implication excludes service in any other capacity except as a confirmed Hea<i Master/Principal in a substantive post.

(633 D-E, G-HJ B

Qonfirmation in a post being one of the glorious uncertainties of service as observed by this Court in S. B. Patwardhan's case, it is rational to believe that the framers of the rule did not want to attach any importance to the capacity

in which the post is held but the emphasis was on working on the post meaning 'thereby discharging 'the duties and performing the functions assigned to the ' post. [634 C-D] C

S. B. Patwardhan and Ors. etc. v. State of Maharashtra and Ors., (1977] 3 SCR 775; applied .

CML APPELLATE JURISDICTION : Special Leave Petition (Civil) Nos. 4062-4066 of 1978.

From the Orders dated 11-1-1978 of the Madhya Pradesh High Court in M.P. Nos. 390, 391, 393, 395 and 397 /75.

AND

SPECIAL LEAVE PETITION (CIVIL) NO. 4069 of 1978.

From the Order dated 5-1-78 of the Madhya Pradesh High Court E in M.P. No. 580/75.

S. K. Gambhir for the Petitioners in all the S. L. Ps.

The Order of the Court was delivered b_y

DESAI, J. Mr. Gambhir, learned counsel for the petitioner infonr_ed us that a number of petitions are pending in the High Court of Madhya Pradesh in which the question raised in the present group of petitions is involved and as we are not inclined to grant leave, we would rather indicate our reasons by a speaking ordr.

At the commencement of the British Raj both in the Raj ruled area of India and the princely States institutions of higher education were set up and manned under Government aegis. As the demand for institutions of higher education increased with the proliferation of State activity and need of white collar employees., these institutions speedily mu\t1plied and they were generally set up and manned by educational societies or local authorities.

The turmoil since independence and especially in the last one and H a ha'f decade in the world of academicians led to the reversal of the policy of Gc.ernment directly setting up educational institutions and

in fact whatever they had set up, being slowly handed over to educational sociellc5 and/or local authorities, and it has turned a full circle.

The grievar.ce of the teachers in such school manifested in the demand . for taking over of such institutions by the State and all over the country the transition has begun.

In MaJhya Pradesh the State regulated the functioning and standards of academic instruction in 'Higher Secondary Schools under Madhya Praaesh Madhyamik Shiksha Adhiniyem, 1965. This supervisory role of the State hardly improved the situation with the Tesnlt that tensions increased and the demand became louder that these institutions should be taken over by the Government for its direct management and the teachers should be accorded the status of Government servants.

The State Government responded to this demand by enactin~ the Madhya Pradesh Local Authorities School Teachers (Abso'iption in Government Service) Act, 1963 ('the Act' for short). The Act provided for absorbing teachers serving in Middle Schools and Primary Schools managed by local authorities in Government service.

The rckvant rule for absorption is rule 3 of the Rules enacted under the Act. In these petitions we are concerned with rule 3(b) which reads as under :

"3 (b). For absorption on the pog of Head Master/ Principal of a High/Higher Secondary School, the person concerned should possess the post graduate degree and should have worked on the pest for a minimum period of 7 years in the same institution and should have 10 years teaching experience in any recognised institution of Madhya Pradesh''.

While implementing the aforementioned rule there arose a cleavage on the interpretation of the rule, the concerned teacher. contending that what is relevant is that working on the post for . a .minimum period of 7 years would for the purpose of computation of 7 years include service even as incharge Head Master/Principal or officiating service in the post whereas 'the State contended that the (eacber claiming to be absorbed as Head Master/Principal should have worktd as a confirmed Head Master /Principal in a substantive pest for the full period of 7 years. The State in accordance with its interpretation declined absorption to a number of Head Masters/ Principals \\h1ch led to the filing of a number of writ petitions in the Madhya Pradesh High Court.

It appears that this question was first examined by the Madhya Pradesh High Court in Satyendra Prasanna Singh Yadav v.

State of

)ii

I • •••

' , •

,•.

I •

Madhya Pradesh & 3 Ors.('), in whlch the ijigh Court took the view that the period during which a Head Master/Principal worked as incharge Principal ought to be taken into account for computing the period of 7 years. Following this decision the present group of petitions were allowed by a Division Bench of the Madhya Pradesh High Court and an application for leave to appeal to this Court under Article 133 of the Constitution was rejected. Hence the State of Madhya Pradesh has filed this group of petitions for special leave to appeal. It may be mentioned that the earlier decision which the High Court seeks to follow appears to have been accepted by the State of Madhya Pradesh.

Mr. Gambhir, learned counsel for the petitioner urged that the expression : "should have worked on the post for a minimum period of 7 years in the same institution" would, in the context of the rule and the consequences flowing from it, mean only a substantive post on which the Head Master/Principal was confirmed and the confirmed holder of t!1e substantive post for a period of 7 years would be entitled to absorption as envisaged by rule 3 (b). On a pure grammatical construction of the expression it would indisputably appear that the person claiming to be absorbed must have worked on the post of Head Master/ Principal of a High/Higher Secondary School for a minimum period of 7 years. Emphasis is on the experience gained by working on the post of Head Master/Principal. A person incharge of the post also works and discharges the duties and functions of the post of which he has taken cl1arge. Even an officiating incumbent of the post does discharge the functions and duties of the post.

While examining the relative positions of confirmed Deputy Engineers and Officiating Deputy Engineers in .S. B. Patwardhan & Ors. etc. v. State of Maharashtra & Ors., (2) this Court observed that the officiating Deputy Engineers discharge identical functions, bear similar responsibilities and acquire an equal amount of experience in the respective assignments. Viewed from this angie, the confirmed holder of a substantive post would be discharging the functions attached to the post and when some one is placed in ilmt very post in an officiating capacity or directed to hold charge of tbe post, he would be required to perform the duties and discharge the functions of the post rendering identical service. If the rule expressly did not make any differentiation between the persons working as a confirmed holder of substantive post and an incharge or officiating holder of the post, is there anything in the expression itself which by nettssary inlplication excludes service in any other capacity except as a confirmed H_ead Master/Principal in a substantive post? A

(!) Misc. Petition No. 368 of 1973, decided on 144-1976

(2) [1977] 3 S.C.R. 775.

2-330SCI/79

confirmed holder of a substantive post may look tautologous because one can only be confirmed in the substantive post.

Now, every High School or Higher Secondary School must of necessity have the post of Head Master/Principal and it was nowhere suggested that there would not be a post of Head Master/Principal.

B If that would mean that there was always a substantive post of Head Master/Principal it may be that the confirmed holder of the post may be away and not in a position to discharge the duties and some one may be appomted in an officiating capacity or may be directed to hold charge but none-the-less such holder of the post will have to paform duties and discharge functions attached to the post. c Further, the emphasis in the expression is on working on the post meaning thereby performing the duties and discharging the functions assigned to the post and not the capacity in which the post is held.

Confirmation in a post being one of the glorious uncertainties of "ervice as observed by this Court in S. B. Patwardhan's case, (supra) it is D rational to believe that the framers of the rule did not want to attach any importance to the capacity in which the post is held but the emphasis was on working on the post meaning thereby discharging the duties and performing the functions assigned to the post.

Our attention was drawn to State of Assam & Ors. v. Shri Kanak Chandra Dutta('). We fail to see bow this decision can assist in deciding the question one way or the other. The question that came for consideration of this Court was : whether the holder of a post designated as Moujadar in the Assam valley was holding a civil post in the context of Article 311 of the Constitution ? After examining the duties and functions attached to the post of Moujadar, this Court held that a post can exist apart from the b9lder of the post and that Moujadar is the holder of a civil post under the State and that it makes no difference that he is remunerated by way of a commission on the collection of Government dues and does not draw a salary. In fact, if at all this decision helps, it would fortify the view which we are taking that the post is independent of the holder thereof and the requirement of the rule is that the person claiming to be absorbed must have worked in the post of Head Master/Principal.

Perhaps there would have been some merit in the submission on behalf of the petitioner if in rule 3 (b) the words used were "who held the post" but the language in rule 3 (b) is so materially different and it speaks that a person should have worked on the post. The State was apparently wrong in introducing the element of rank for the purpose

(I) [1967] l S.C.R. 679.

.,.

<lf rule 3 (b). The controversy that surfaced in Ramrattan v. Siate of

Madhya Prad<sh & Ors.,( 1) and the subsequent decision in State of Madhya Prc1desh v. Gokul Prasad, (2) which led to a reference to a Full Bench in Girja Shankar v. S.D.O., Harda & Ors.,(8) on account <lf the use of the expressions such as "person appointed to be incharge of the current duties of the office" which indicated that such person did not hold the rank and, therefore, could not discharge statutory functions assigned to the post should not detain us.

The language here indicates emphasis on work being done while on the post irrespective of •he capacity. The absorption of a person as Principal under rule 3 (b) does not depend on rank but on the nature of functions and duties that an incumbent discharges for a particular number of years, i.e. the duties of a Principal for a period of 7 years .

It thus dearly transpires that while computing the period of 7 years for the purpose of rule 3 (b) what is determinative is performing duties and discharging functions of the post of Head Master/Prmcipal irrespective of the capacity in which the post was held. The High Court was, therefore, right in holding that the period during which the petitioners (respondents in these petitions) worked as in charge Head Masters/Principals ought to be taken into account by the State Government for computing the period of 7 years.

These petitions are accordingly dismissed.

V.D.K.

{1) J.L.R. 1964 MP 242

(2) 1971 MPLJ 609

(3) AIR 1973 MP 104.

Petitions disrniscd.

---~

STATE OF MADHYA PRADESH

LAXMISHANKAR MISHRA AND ORS. ETC

March 29, 1979

D. A. DESAI

A. P. SEN, JJ.

Madhya Pradesh

S. B. Patwardhan

(1977] 3 SCR 775

S. K. Gambhir

DESAI

Gambhir

High Court of Madhya Pradesh

India

MaJhya Pradesh

Madhya Pradesh High Court

Article 133

State of Madhya Pradesh

Gambhir

[1977] 3 S.C.R. 775

Article 311

Moujadar

AIR 1973 MP 104


PUSHPABEN & ANR.

NARANDAS V. BADIANI & ANR.

March 29, 1979

(S. MURTAZA FAZAL ALI AND A. D. KOSHAL, JJ.]

Contempt of Courts Act-Section 12(3)-Scope of-Sentence of inipri.ronment-When should be awarded in civil contempt.

Respondent No. 1 filed a complaint under s. 420 IPC against the appellants alleging that a loan taken by them from him had not been repaid. \Vhile the complaint was pending before a Magistrate the parties entered into a compromise under which the appellants undertook to repay the loan before a stipulated date. The Magistrate accordingly allowed the parties to compound the case.

When the appellants failed to repay the loan in accordance with the undertaking given before the Magistrate the respondent moved the High Court for taking action against the appell&nts for contempt of court. On the view that the appellants had committed a wilful disobedience Of the undertaking the High Court held that they were guilty of civil contempt and sentenced them to one month's simple imprisonment.

Allowing the appeal in part,

HELD : I. The appellants had committed wilful disobedience of the court

E of the Magistrate by committing serious breach of the undertaking given to it on the basis of which alone they had been acquitted. The High Court was, therefore, right in holding that the appellants were guilty of civil contempt under s. 2(b) of the Contempt of Courts Act. [638 Al

2. Having regard to the circumstances of the case the present case falls .J within the first part of s. 12(3) of the Act and a sentence of fine alone should have been awarded by the High Court. By enacting the section the legislature intended that a sentence of fine alone should be imposed in normal circumstances.

Special power is, however, conferred on the court to pass a sentence ')':~ of imprisonment if it thought that ends of justice so required. Therefore,

fore a court passed a sentence of imprisonment it must give special reasorui

for passing such a sentence. [638 G]

In the present case there are no special reasons why the appe11ants should be sent to jail.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 43 of 1975.

From the Judgment and Order dated 9-1-1973 of the Bombay High

H Court in Criminal Application No. 681/72.

V. S. DeJaz, P. H. Parekh, C. B. Singh, M. Mudgol, B. L. Ve111ia and J. C. Rajani, for the Appellants.

PUSHPABEN v. NARANDAS (Fazal Ali, J.) 637

M. N. Shroff for the Respondents.

The Judgment of the Court was delivered by F AZAL Au, J .-This is an appeal under s. 19 of the Contempt of Courts Act (hereinafter called the Act) against an order of the High Court of Bombay convicting the appellants for a Civil Contempt and sentencing th(m to one month's simple imprisonment. The facts of the case have been fully detailed by the High Court and it is not necessary for us to reprnt the same all over again. It appears that Respondent No. 1 had gicn a loan of Rs. 50,000/- to the appellants on certain conditions. Somehow or other, the loan could not be paid by the appellants as a result of which Respondent No. 1 filed a complaint under S. 420 I.P.C. against the appellants. While the complaint was pending before the Court of the Magistrate, the parties entered into a compromise on 22-7-1971 under which the appellants undertook to pay the loan of Rs. 50,000/- with simple interest@ 12% per annum on or hefore 21-7-1972. An application was filed before the Court for allowing the parties to compound the case and acquit the accused. The Court after hearing the parties, passed the following order :-

"The accused given an undertaking to the court that he shall repay the sum of Rs. 50,000/- to the complainant

.1 on or before 21-7-1972 with interest as mentioned on the reverse. In view of the undertaking, I permit the compromise and acquit the accused".

It is obvious, therefore, that the Court permitted the parties to compound the case only because of the undertaking given by the appellants.

Thereal'tcr, it apears, that the undertaking was violated and the amount of loan was not paid to the Respondent No. 1 at all. The res- • ,~ pendent, therefore, moved the High Court for taking action for con- _., tempt of Court against the appellants as a result of which the present proceedings were taken against them.

The High Court came to the conclusion that the appellants had co=itted a wilful disobedience of the undertaking given to the Court and were, therefore, guilty of civil contempt as defined in S. 2(b) of the Act. Hence, this appeal before

us.

Mr. V. S. Desai appearing in support of the appeal has raised two short points before us. He has submitted that there is no doubt that the

appellants had violated the undertaking but in the circumstances it cannot be said that the appellants had committed a wilful disobedience

of the orders of the Court. So far as this point is concerned, we fully H agree with the High Court. In the circumstances, the appellants undoubtedly committed wilful disobedience of the order of the court

SUPREME COURT REPORTS

[1979] 3 S.C.R.

by committing a serious breach of the undertaking given to the Court on the basis of which alone, the appellants had been acquitted. For these reasons, the first contention put forward by Mr. Desai, is overruled.

It is, then, contended that under S. 12(3), normally the sentence that shonld be, given to an offender who is found guilty of ci; il contempt, is fine and not imprisonment, which should be given only where the Court is satisfied that ends of justice require the imposition of such a sentence. In our opinion, this contention of learned counsel for the appellants is well-founded and must prevail. Sub-section 3 of S. 12 reads thus :--

"Notwithstanding anything contained 111 this section, where a person is found guilty of a civil contempt, the Court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit".

A close and careful interpretation of the extracted section leaves no room for doubt that the Legislature intended that a sentence of fine alone should be imposed in normal circumstances. The statute, however, confers special power on the Court to pass a sentence of imprisonment if it think that ends of justice so require. Thus before a Court passes the extreme sentence of imprisonment, it must give special reasons after a proper application of its mind that a sentence of imprisonment alone is called for in a particular situation Thus, the sentence of imprisonment is an exception while sentence of fine is the rule.

Having regard to the peculiar facts and circumstances of this case, we do not find any special reason why the appellants should be sent to jail by sentrncing them to imprisonment.

Furthermore, respondent No. 1 before us despite service, has not appeared to support the sentence given by the High Court. Having regard to these circumstances, therefore, we are satisfied that the present case, squarely falls in the first part of S. 12(3) and a sentence of fine alone should have been given by the High Court. We, therefore, allow this appeal to this extent that the sentence of imprisonment passed by the High Court is set aside and instead the appellants are sentenced to pay a fine of Rs. 1000/- each.

In case of default, 15 days simple imprisonment.

Four weeks time to pay the fine.

P.B.R.

Appeal allowed m part.

PUSHPABEN & ANR

NARANDAS V. BADIANI & ANR

March 29, 1979

S. MURTAZA FAZAL ALI

A. D. KOSHAL, JJ.

Contempt of Courts Act

Section 12(3)

s. 420

IPC

s. 2(b)

Contempt of Courts Act

s. 12(3)

V. S. DeJaz

P. H. Parekh

C. B. Singh

M. Mudgol

B. L. Ve111ia

J. C. Rajani

Fazal Ali

M. N. Shroff

F AZAL Au

s. 19

Contempt of Courts Act

High Court of Bombay

S. 420

I.P.C

S. 2(b)

V. S. Desai

Desai

S. 12(3)

section 3

S. 12

S. 12(3)


SHAKUNTALA SAWHNEY

KAUSHAL YA SAWHNEY

,4pril 4, 1979

[V. R. KRISHNA lYER AND V. D. TULZAPURKAR, JJ.]

Proc1?dt1re-Dury of Subordinate Court:1 in dealing with farnily dispute3.

The purpose of la\V and justice (Dharma) is promotion of cohesion and

no~ production of fission.

A judgment often possesses a sublime essence and a humdrum component. The sublime e1ement consists in the optimitic endea vour to bring parties together so that the litigation may not cut them a-s under, especiaJJy when they are blood relations like sisters. The -present appeal in its happy conclusion, holds out the higher lesson that hate and fight are dis.solved by basic human fellnwsbip, even after bitter litigative struggle, if the Bench and the Bair pursue consensual justice and bring into play conciliatory processes and successfully persuade the parties to see reason and right beyond bare law. If the effort succeeds, the court and counsel derive spiritual fulfilment and get satisfactiori. The finest hour of justice arrives propitiously v.'hen parties, despite falling apart, bury the hatchet and weave a sense of fellowship or union. !640 Dl

The present case is not merely a just adjustment of a bitter litigation but

._ J. a path-finder for the subordinate courts in dealing with family or like disputes. [643 Bl

The text and tlie context and the app]ication of traditional rules of statutory E inttrpretation, in a given case, might leave the position in an un~, atisfactory dilemma of dual import. Even an equitable approach n1ay not necessu-rily help reach a just solution because equity shifts as the situation varies. Contradictory positions taken by different High Courts add to the difficulty and result in the deleterious uncertainty of the law. The Supreme Court may resolve the conflict by exercising its preference guided by the language and the milieu and follo\ving the customary canons of statutory interpretation. While its decision \vill be F binding on account of Art. 141 of the Constitution it may still be fallib1e becanse the intendment of Parliament is best brought out by legislative clarification in some cases. [640 H]

The appe1lant and the respondent were step-sisters-daughters of a common father but of different mothers. The father who owned _vast propertie~ had diea before the coming into force of the Hindu Succession Act 1956. The G respondent's mother who inherited her husband's estate died after the comiiig into force of the 1956 Act. The High Court dismissed the appellant'~ claim for a. half share in the propertie~ under~. 15(1)(a) of the Act. The pecific

point of claim, whether a son and daughter in the setting of s. 15(1)(a) of the Act, includes stepMson and step-daughter or embraces only the son and daughter of the deceased female propositus, has escaped thei Parliament's attention while passing the legislation.

{A.t the Court's suggestion the parties came to a compromise assisted by counsel on both sides.]

640 S"iJPREME COURT REPORTS [1979] 3 s.c.R.

A Tulzapurkar, J.

Parliament should clarify its intention regarding s. B(l)(a) of the Act.

CML APPELLATE JURISDICTION: Civil Appeal No. 348 of 1977.

Appeal by special leave from the Judgment and Order dated 21-9-1976 oi the Punjab & Haryana High Court in Letters Patent Appeal No. 89/76.

W. C. Chopra for the appellant.

M. L. Varma for respondent No. 1.

The Judgment of the Court was delivered by

KRISHNA IYER, J.-A judgment often possesses a sublim~ essence and a humdrum component. The appeal before us, in its happy conclusion, bolds out the higher lesson that bate and fight are dissolved by basic human fellowship, even after bitter litigative struggle, if the Bench and 1he Bar pursue consensual justice, and bring into play conciliatory processes, and successfully persuade the parties to see reason

and right beyond bare law. If the effort succeeds, as it has in this case, court and counsel derive spiritual fulfilment and get satisfaction.

Two sisters, apparently of the affluent bracket, with a common father but different mothers, became estranged when one (the appellant) claimed a half share in the estate of the father, on whose death before 1956, the respondent's mother inherited her husband's estate but died after 1956, possessed of her husband's assets and her own.

When intestate succession to her opened the plaintiff-appellant claimed a half share therein, founded on s. lS(l)(a) of the Hindu Succesoion Act (the Act, for hort). The High Court negatived the right to a share as an heir, and, in doing so, preferred the interpretation of the provision adopted by the then Mysore High Court (AIR 1962 Mysore

160) as against the meaning attached to the provision by the Allahabad High Court ( 1968 Allahabad Law Journal 488). In fact, a plurality of decisions has been brought to our notice indicating a plain conflict.

Interpretation is sometimes a projection of judicial inclination to do justice.

The question of law canvassed before us turns on the meaning of "son" and "daughter" in the setting of s. lS(l)(a) of the Act. Do the expressmns include step-son and step-daughter or embrace only the son and daughter of the deceased female propositus ? The text and the context and the application of traditional rules of statutory interpretation leave the position in an unsatisfactory dilemma of dual

import.

Even an equitable approach may not necessarily help reach a just solution, because equity shifts as the situation varies, as illustra-

• I

SHAKUNTALA v. KAUSHALYA (Krishna lyer, J.) 641

tions presentd to us convinced us. Thus, the problem is a little tricky and may wdl arise frequently. Contradictory positions already taken by different High Courts add to the difficulty and result in the deleterious uncenainty of the law which may well incite, as it has done here, close relations to quarrel over property. Blood may be thicker than water, but wealth breaks all relations on a word of material value sets.

The Supreme Court may, when the High Courts disagree, resolve the logomachic conflict by exercising its preference guided by the language and the milieu and following the customary canons of statutory interpretation. While its decision will be binding on accounf of Article 141 of the Comtitution, it may still be fallible because the intendment of Parliament is best brought out by legislative clarification. In the present instance, we have a hunch that the specific point of claim by stepsons and step-daughters to inherit to the estate of a deceased female has escaped Parliament's attention while fashioning the legislation. This is not surprising when we appreciate the push and pressure, hurry and worry of Jaw-making modalities. In such a situation, when a sharp conflict has shown up in the rulings of courts, the matter should not be left in doubt or to forensic-linguistic exercises but must be settled by legislative action on the part of Parliament, making explicit its policy on this branch of the Hindu Succession Act. Inaction leads to more litigation, speculation and compulsion for judicial legislation by the Supreme Court. Drafting lapses are understandable but when differencei of interpretation come into the open, delay in correctional parliamentary performance is fraught with negative litigative potential .. We are hopeful that the Indian draftsmen will disprove the old English jingle :

l'am the parliamentary draftsman I compose the country's laws

And of half the litigation I'am undoubtedly the cause.

Tue sublime element which we adverted to in the bgil:lning consists

in the optimistic endeavour to bring parties together so that the litiga- G tion may not cut them asunder, especially whn they are sisters. The purpose of law and justice ( dharma) is promotion of cohesion and not

production of fission.

From this angle, as the arguments proceeded and the legal tempers ftared up, we suggested that instead of escalating estrangement the parties may as well compose themselves and their quarrels and re-establish their sisterly relations making a some\\ hat H amicable adjustment of the !is before us. Viewing the case from this perspective of tranquillity verms turbulence, but making it perfectly

SUPREME COURT REPORTS [1979] 3 s.c.1t.

plain that suggestions from the court towards this end will uot affect its unbiased adjudicatory duty iu case it became necessary, we ventured tentative solutions. Counsel took up the suggestion in the proper spirit and we mut record our admiration for the strenuous effort made by the young lawyer Shri M. L. Varma who did his best and successfully persuaded his client who had won in the High Court to come down to a compromise. We need hardly say that such a seasoned and senior counsel like Shri Lal Narain Sinha could be counted upon to aid in the process, and he did. The finest hour of justice arrives propitiously when parties, despite falling apart, bury the hatchet and weave ~

sense of fellowship or reunion. In the present case, counsel today put in a joint statement(') signed by the parties setting down the terms on which they have agreed. We consider it a snccess of the finer human spirit over its baser tendency for conflict.

Now we come to the hundrum part of the case. According to the compromise some landed properties are to be made over to the appellant. Some cash is also to be paid to the appellant by the respondent.

The discretion to fix the sum has been left by the parties to us.

We direct that the respondent shall pay a sum of Rs. 75,000/- to the appellant within two weeks of the attachment of the moneys by the trial court being withdrawn.

The plaintiff/appellant undertakes that she will get the attachment withdrawn and we direct her to do so. We make it further clear that this withdrawal of the attachment is to facilitate the making of the payment of Rs. 75,000/- from out of the sum now lying in bank deposit.

We also direct that landed property worth Rs. 25 ,000 /- will in addition be made over to the appellant from out of the suit prnperty. The further direction must justly follow-and we make-that all the rents due from the properties allotted to the appellant under the joint statement prior to this date and subsequent to tbi& date shall be collectible by the appellant. If they have already been deposited in court, they will be withdrawn by the appellant. The actual allocation of the lands under the joint statement will be made by Mr.

Prem Nath Randa within two months from today. Both sides agree on Shri Handa being impartial and competent to make the said allotment. His allotment once made will not be challengeable. Shri Randa pursuant to this direction will make the allocation and put in a statement to that effect in the trial court and that statement will be deemed to be part of this decree.

(1) On 2-4-79 an incohate compromise purporting to be a full-fledged compromise had been put into court by counsel signed by both sides, but the joint

st,.._tement of settlement put in today is in complete sllpersession of the

 earlier one.

SHAKUNTALA v. KAUSHALYA (Krishna Iyer, !.) 643

We need hardly mention-it is so obvions-that the land that remains will belong entirely to the respondent and there will be no more

clajms from the appellant on the respondent in regard to the estate of her step-mother, or in respect of its income or otherwise.

Before we part with the case we should like to emphasise that having regard to the merits of the claim, this is not merely a just adjustment of a bitter litigation but a path-finder for the subordinate courts in dealing with family or like disputes. Indeed, we have had to take the lead in giving shape to the settlement as it has finally emerged.

Counsel on both sides have also, statesman-like, assisted in producing the settlement. We command this exampb to the judiciary and to the Bar and reinforce it with what Gandhiji has recorded in his autobiography:

"I have learnt the true practice of law. I had learnt to find out the better side of human nature and to enter men's hearts. I realised that the true function of a lawyer was to unite parties driven asunder.

The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases.

I lost nothing, thereby-not even money, certainly not my soul."

We allow the appeal in part but entirely in terms of the compromise which we consider clearly reasonable and just. There will be no order as to costs.

TULZAPURKAR, J.-Dccree in terms of compromise without costs.

~ Parliament should clarify its intention regarding s. 15(1)(a).

P.B.R.

Appeal allowed in part .

SHAKUNTALA SAWHNEY

KAUSHAL YA SAWHNEY

4pril 4, 1979

V. D. TULZAPURKAR, JJ.

Supreme Court

Art. 141

Parliament

Hindu Succession Act 1956

s. 15(1)(a)

A Tulzapurkar

W. C. Chopra

M. L. Varma

KRISHNA IYER

Mysore High Court

Allahabad High Court

Article 141

Hindu Succession Act

M. L. Varma

Lal Narain Sinha

Prem Nath Randa

Handa

Randa

Gandhiji

TULZAPURKAR

s. 15(1)(a)


HUKUM CHAND JUTE MILLS LTD.

SECOND INDUSTRIAL TRIBUNAL, WEST BENGAL & ORS.

April 11, 1979

[V. R. KRISHNA IYER, V. D. TuLZAPURKAR AND R. S. PATHAK, JJ.]

Payment of BonuJ A.ct, 1965-Customary and contractual bonus-If excluded by the Act>-A.mending A.ct 23 of 1976-Efject of.

The appellant mills had been paying customary bonus to its employees for a number of years.

Consequent to the amendment of the Bonus Act, 1965 in 1976 by Act 23 of 1976 the moo.agement denied the customary bonus claimed by the workmen, whereupon the dispute regarding "customary bonus for the year 1976" was referred by the State Government to the Industrial Tribunal.

The Management's plea that customary bonus was no longer payable, in view of tho provisions of the 1976 Amendment, WM negatived by the Tribunal.

In the appeal to this Court it was contended on behalf of the appellant D that the Bonus Act as amended by Act 23 of 1976, annihilate! all epecies of bonu! including customary and contractual bonu?i.

Dismissing. the appeal,

HEID: 1. The Bonus Act (1965) though a complete code was confined to profit-oriented bonw only.

The other kinds of bonu! that have flourished in Indian industrial law have been left uncovered by the Bonus Act.

The legislative universe spanned by the said statute cannot therefore, affect the rights

and obligations belonging to a different world or claims and conditions. [647-E]

2. The amending Act, 23 of 1976 amended the long title of the Bonuo Act to provide for the payment of bonus

11on the bMi! of profits Ol" on tbs basis of production or productivity, and for maA.te~ connected therewith." The inference that flows therefrom i! that customary or contractual bonus goes F beyond the pale of the amending Act which modifi°' the previous one by bringing within its range bonu?i on the basis of production or produttivity also.

!648G-649B].

3. Section 17 of the Bonus Act in express terw rerfers to puja bonus nd other customary bonus as available for deduction from thC: bonus payable under the Act, thus making a clear distinction between the bonus payable under the Act

and "puja bonus or other customary bonus". This section has been left intact.

So long as this section remains without amendment the inference is clear that the categories covered by the Act, as amended, do not deal with cuaton1ary

bonm. (649-C]

-4. Section 31A relates to bonus linked with production or productivity in lieu of bonus based on profits. It speaks nothing of the other kindlil of bonus.

[649-GJ

5. The Bonus Act (1965) doe. not deal with cu•tomary bonus and i1 confiaed to profit-based or productivitybased bonm. The provi?iion! of the Act have no say, on customary bonus and cannot, therefore, be inconsistent therewith.

• )!'. ..

HUKAM CHAND JUTE MILLS V. INDUSTRIAL TRIBUNAL 6 4 5 (Krishna Iyer, I.) Conceptually, statutory bonus and customary bonus operate in two fields arid do not cash with each other. [649H-650AJ

In the instant case, both parties have agreed that throughout they have been dealing with customary bonus only and whenever there has been a settlement or agreement it has been not the source of the right but the quantification thereof. The claim was rooted in custom but quantified by contract.

It did not originate in any agreement, but was organised by it.

The customary bonus as claimed is neither impaired nor eliminated by the 1976 Amendment Act.

[650 C, Bl

Mumbai Kamgar Sabha, Bombay v. M/S. Abdulbhai Faizullabhai & Or.. [1976] 3 SCR 591 at 608-609 & 612; Sanghi Jeevarai Gh'e'war Chand & Ors. v.

Secrtary Madras Chillies, Grains Kirana Merchants Workers' Union and Anr. [1969] I SCR 366; referred to.

CIYIL APPELLATE JURISDICTION : Civil Appeal No. 1118 of 1978.

Appeal by Special Leave from the Order dated 12-5-1978 of the Second Industrial Tribunal, West Bengal in Case No. VIII-169 /77 G.O. No. 3000 IR dated 26-7-77.

G. B. Pai, R. C. Shah, S. R. Agarwal, 0. P. Khaitan and Praveen D Kumar for the appellant.

M. K. Ramamurthi, D. T. Sen Gupta, S. R. Gupta and P. K.

Chakravorti for Respondent No. 3.

M. K. Ramamurthi, and Ramesh C. Pathak for the Intervener (The Bank of Tokyo Staff Association).

The Judgment of the Court was delivered by

KRISHNA IYER, J.-Industrial jurisprudence, based on the values of social justice which is integral to our Constitution, bas been built around se¥ral legislations enacted by Parliament, one of which is the Payment of Bonus Act, 1965, (the Bonus Act, for short). The bonus branch of labour law, however, is not exhausted by this enactment and has been replenished by judge-made law, drawing sustenance frem practice and precedent, custom and contract. Against this back

drop, we have to state and assess the single issue strenuously canvassed before us by the appellant-management challenging the award of the Industrial Tribunal and urging that the Bonus Act, as amended by Act 23 of 1976, annihilates all species of bonus including customary and contractual bonus.

The claim of the Union of Workmen is for customary bonus, the reference to industrial adjudication relates to custorr.ary bonus, and the special leave to appeal granted by this Court is confined to customary bonus as the common basis and focuses on the sole legal issue of negation of that kind of bonus by virtue of the provisions of the amel)ding Act 23 of 1976.

The matrix of minimal facts necessary to highlight the limited controversy may lay bare the crucial issue we have to decide.

The appellant is a jute mill in Bengal employing several thousand workers but we are directly concerned here with a dispute between the Managemnt and the employees in its head office.

Certain indisputable facts, fundamental to the case, make a useful beginning.

Customary bonus has been claimed, conceded and settled between the parties for long years since the early sixties at least.

From time to time, this demand has been the subject of dispute and, fortunately, of agreed solution right down to 1975.

But in 1976--the year in which Art. 43A making participation of workers in Management of industries was made a Directive Principle in our Constitution-the Bonus Act was, paradoxically, amended restricting workers claim to Bonus by Act 23 of 1976 although much of the curtailment has been cancelled by the next Amending Act, 1977.

Anyway, the changes wrought by the 1976 amendment emboldened the Management to deny the legality of Customary bonus claimed by the workmen. This conflict led to a reference by the State Government to the Industrial Tribunal of the following dispute :

"CUSTOMARY BONUS FOR THE YEAR, 1976"

What is material to notice is that the demand and the denial, the reference and the adjudication and, finally, the special leave itself revolved round customary bonus.

The specific case of the Management was that customary bonus could no longer be payable, in view of the provisions of the 1976 amendment.

A statutory fatality was sought to be spelt out of its provisions before the Tribunal and before us.

We emphasize this to exclude a hazy, though half-hearted plea mentioned by Shri G. B. Pai for the appellant that here the bonus was based on agreement and no agreement as such could avail in view of s. 34, read with s. 31A, (as amended by the 1976 Act).

Apart from the Jaw relied on, it is somewhat startling that bonus paid by settlement between the parties qua customary bonus at least since 1962-63 (see page 4 of the Paper Book) should be anathematized as untenable. in 1976, suggesting that labour law, viewed from the social justice angle, is making headway steadily backwards.

Even so, we will examine the law as the statute speaks.

The payments over the years have been of customary bonus. The demand for 1976, which alone directly concerns us, is also for customary bonus.

The dispute referred is of customary bonus.

The legal objection urged is to customary bonus.

The award has upheld the tenability of customary bonus.

The special leave. petition complained about the legality of customary bonus and

'".

ill .-

HUKAM CHAND JUTE MILLS V. INDUSTRIAL TRIBUNAL 647 (Krishna Iyer, !.) the order granting leave clinched the issue by treating the dispute as one for customary bonus.

Likewise, throughout, the only defence of the management was the lethal impact on customary or other bonus, save profit or productivity-based bonus of Act 23 of 1976.

So the sole question is the soundness of the legicidal impact of the l 976 amendment on the customary bonus claim which otherwise was valid and, indeed, was honoured by the appellant by progressively escalating rates by agreement.

This part of the narration may be concluded by excerpting the order granting leave :

"Mr. Pai states on behalf of the petitioner-Management that if they fail on the legal issue, namely, because of the amendment in the Bonus Act customary bonus is not payable, then they will not ask for the trial of that issue on merits and straightway they will pay the customary bonus they have been paying as per the agreement dated 20-3-1975.

In view of this undertaking we grant special leave to app::al and even if the appellants succeed in this appeal, they will not ask for costs against the workmen concerned.''

The Bonus Act (1965) was a complete code but was confined to profit-oriented bonus only.

Other kinds of bonus have flourished in Indian Industrial law and have been left uncovered by the Bonus Act.

The legislative universe spanned by the said statute cannot therefore affect the rights and obligations belonging to a different world or claims and conditions.

This has, in the Mumbai Kamgar's case(') exhaustively dealt with the anatomy of the Bonus Act, its functional scope its modalities and its operational frontiers to reach the following conclusion :

"It is clear further from the long title of the. Bonus Act of 1965 that it seeks to provide for bonns to p::rsons employed 'in certain establishments' -not in all establishments .

Moreover, customary bonus does not require calculation of profits, allocable surplus, because it is a payment founded on long usage and justified often by spending Qn festivals and the Act gives no guidance to fix the quantum of festival bonus; nor does it expressly wish away such a usage.

The conclusion seems to be fairly clear, unless we strain judicial sympathy countrarywise, that the Bonus Act dealt with only profit bonus and matters connected therewith and did not govern customary, traditional or contractual bonus.

(I) [1976] 3 S.C.R. 591, 608-609.

The end product of our study of the anatomy and other related factors is that the Bonus Act spreads the canvas wide to exhaust profit-based bonus but beyond its frontiers is not void other cousin claims bearing the caste name 'bonus' flourish-miniatures of other colours ! The Act is neither proscriptive nor predicative of other existences."

After dealing with Ghewar Chand's case('), the Court arrived at the final view that

"A discrning and concrete analysis of the scheme of the Act and the reasoning of the Court leaves us in no doubt that it leaves untouched customary bonus."(')

This ruling has our concurrence and, indeed, the principal plea of Shri Pai, counsel for the appellant, is that the effect of the 1976 amending Act has been left open in that decision a'nd that is precisely the justification for his submission that the new provisions nullify all kinds of claims of bonus except pmfit-or-productivity-based bonuses, having regard to ss. 31 A and 34A brought into the statute Act.

Counsel made his goal-oriented submissions by taking us through the new provisions.

As we have stated earlier many of the statutory modifications brought about in 1976 in the then wisdom of Parliament have been repealed and the original position restored in 1977 by the later wisdom of the new Parliament.

However, we are concerned only with the import and effect of the few provisions incorporated by Act 23 of 1976. . The fundamental fact which we must reiterate is that the Bonus Act before the 197 6 amendment bad nothing to say on bonu~ not oriented on profit.

What then was the departure made ?

Did it travel beyond the broad territory of the original statute and invade other forms of bonus ? Apart from the clauses which we will presently deal with, a key to the understanding of the changes is the long title. The long title of the Bonus Act was also amended in 1976 and the substituted one runs thus :

"An Act to provide for the payment of bonus to persons employed in certain establishments on the basis of profits or on the basis of production or productivity and for matters connected therewith."

The clear light that we glean from the new long title is contrary to the intent of Shri Pai's argument.

Specifically, the new

(I) [1969] I S.C.R. 366.

(2) [1976] > S.C.R. 591, 612.

I •

~· .

• ' I

HUKAM CHAND JUTE MILLS V. INDUSTRIAL TRIBUNAL 6 4 9 (Krishna Iyer, !.) long title purports to provide for the payment of bonus "on the basis of profits or on the basis of production or productivity and for matters connected therewith". The emphatic inference flows therefrom that customary or contractual bonus goes beyond the pale of the amending Act which modifies the previous one by bringing within its range bonus on the basis of production or productivity also.

Nothing more-unless the text expressly states to the contrary. It Is important to remember that s. 17 of the Bonus Act has been left intact.

That Section in express terms refers to puja bonus and other customary bonus as available for deduction from the bonus payable under the. Act, thus making a clear distinction between the bonus payable under the Act and "pujd' bonus or other customary bonus. So long as this Section remains without amendment the inference is clear that the categories covered by the Act, as amended, did not deal with customary bonus

Strong reliance was placed by counsel for the appellant on new s. 31A read with substituted s. 34. It is proper to reads. 34 at this stage :

"34. Subject to the provisions of section 31A, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in the terms of any award, agreement, settlement or contract of service."

The only changes that we notice as between this Section and its predecessor are (i) that agreements, settlements and contracts of service inconsistent with the provisions of the Act regardless of whether they

were made before 29th May, 1965 or after would now stand superseded; and (ii) s. 24 shall be subject to the provisions of s. 3 lA newly inserted.

F We may straightway dispose of the argument based on s. 3 JA.

That relates to bonus linked with production or productivity in lieu of bonus based on profits. We are not concerned with such a situation and we agree that in regard to productivity bonus s. 31 A sha1! have operation but it speaks nothing about the other kinds of bonus G and cannot, therefore, be said to hve the sp, in-off benefits claimed by the appellant.

Similarly, the submission that an agreements inconsistent with the Bonus Act shall become inoperative also has no substance vis-a-vis customary bonus.

The fallacy is simple.

Once we agree-and this is incontestible now-that the Bonus Act ( 1965) does not deal with customary bonus and is confined to profit-based H or productivity-based bonus, the provisions of the Act have no say

3-330SCI/79

A on customary bonns and cannot, therefore, be inconsistent therewith.

Conceptually, statutory bonus and customary bonus operate in two fields and do not clash with each other.

We have reached the end of journey because the focal point of the debate is as to whether customary bonus, as claimed in this case, is impaired or eliminated by the 1976 amendment Act. Moreover, both parties have agreed that throughout they have been daling with customary bonus only and whenever there has been a settlement or agreement it has been not the source of the right but the quantification thereof.

The claim was rooted in custom but quantified by contract.

It did not originate in any agreerp.ent, but was organised by it. We are, therefore, satisfied that the appeal must fail.

We should have unhesitatingly directed costs to be paid by the management-appellant to the respondent-workmen; but during the course of the hearing we were far from impressed with the attitude taken up by the respondent.

While the merits df the matter have D to be decided indifferent to such factors, costs are discretionary and we are constrained to dismiss the appeal, directing both the parties to bear their respective costs.

N.V.K.

Appeal dismissed.

HUKUM CHAND JUTE MILLS LTD

V. R. KRISHNA IYER

V. D. TuLZAPURKAR

R. S. PATHAK, JJ.

Section 17

Section 31A

[1976] 3 SCR 591

CIYIL APPELLATE JURISDICTION

G. B. Pai

R. C. Shah

S. R. Agarwal

. P. Khaitan

Praveen D Kumar

M. K. Ramamurthi

D. T. Sen Gupta

S. R. Gupta

P. K.

Chakravorti

Ramesh C. Pathak

KRISHNA IYER

Payment of Bonus Act, 1965

Union of Workmen

Bengal

Managemnt

Art. 43A

Amending Act, 1977

s. 34

s. 31A

Krishna Iyer

Pai

Mumbai Kamgar

[1976] 3 S.C.R. 591

Ghewar Chand

ss. 31

s. 17

s. 31A

s. 34

section 31A

29th May, 1965

s. 24

s. 3

s. 3

s. 31

N.V.K.