Input:
Appeal No. 402 of 1958.
Appeal by special leave from the Award dated January 29, 1957, of the Industrial Tribunal, Bihar, at Patna in Reference No. 7 of 1956.
Sukumar Ghose, for the appellant.
M. K. Ramamurthi, R. K. Garg, A. N. Nag and Suresh Aggarwal, for the respondents.
section P. Varma, for the intervener (State of Bihar).
March 9.
The Judgment of the Court was delivered by WANCHOO, J.
This is an appeal by special leave against the award of the Industrial Tribunal, Patna.
The appellant is a Sugar Mill in District Saran in the State of Bihar.
One Ramkrishna Prasad was appointed as clerk in this mill in 1933.
Gradually, he worked his way up and was drawing Rs. 140 per month in October 1952.
The mill created a new post of store in charge about that time as the work in the Stores Department of the Mill had increased.
On October 4, 1952, Babulal Parekh was appointed to this new post on a consolidated salary of Rs. 180 per menses.
A letter of appointment was issued to him on that date and he was told that he would be on probation for one year.
He was also asked by another letter to take charge immediately.
He took charge on October 7, 1952.
On November 28, 1952, an order was passed by the mill distributing the duties between the various clerks employed in the Stores Department and it was stated therein that all the staff of the Stores Department would work as subordinate to Babulal Parekh.
On December 2, 1952, another order was passed by which Ramkrishna Prasad was ordered to hand over the keys of the stores to Babulal Parekh.
Thereafter Ramkrishna Prasad made a representation against his being made subordinate to the stores in charge.
This representation was rejected.
A dispute was then raised by the union and a reference was made by the Government of Bihar on May 9, 1956, in which the 216 following three matters were referred to the tribunal: 1.Whether the status of workman, Sri Ramkrishna Prasad, Store keeper, and the nature of the job performed by him has been changed to his prejudice with the appointment of a separate store in charge; 2.Whether in view of the satisfactory performance of duties of store keeper for the last 20 years by the above named workman, it was at all necessary to appoint a separate store in charge over him with higher emoluments and whether Shri Ramkrishna Prasad is entitled to be appointed to the post of store in charge; and 3.Whether the claim of the above named workman for promotion to higher grades has been overlooked by the management, and if so, what relief the workman is entitled to.
When the matter came up before the tribunal, the main contention on behalf of the mill was that it was exclusively the management function to decide its labour strength, both qualitatively and quantitatively, and that so far as Ramkrishna Prasad was concerned his position had not been prejudicially affected by the creation of the new post of a store in charge.
The workmen on the other hand contended that Babulal Parekh was first appointed as a mere clerk under Ramkrishna Prasad to begin with and it was only on November 28, 1952, that he was promoted over the head of Ramkrishna Prasad as a store in charge, thus superseding Ramkrishna Prasad.
This stand of the workmen was controverted by the mill and its case was that Babulal Parekh was from the very beginning appointed as store in charge.
The tribunal came to the conclusion after a consideration of the evidence produced that Babulal was first appointed as an ordinary clerk in the Stores Department and was subsequently made a store incharge.
It held that this caused reasonable heart burning to Ramkrishna Prasad.
The tribunal was conscious of the principle that promotion to a higher post was the exclusive function of the management and should not ordinarily be interfered with.
But 217 in spite of that it was of the view that this was a fit case for interference; but on other considerations which were not specified in the order by the tribunal it held that it would not interfere with the arrangement made by the mill; it instead granted an increment of Rs. 30 per month from the date of its order to Ramkrishna Prasad to meet the ends of justice.
It is this order which is being challenged before us.
Two points have been urged before us on behalf of the appellant.
In the first place it is urged that the reference was incompetent as sugar was a controlled industry and only the Central Government could have made the reference and not the State Government.
Secondly, it is urged that the order of the tribunal granting an increment of Rs. 30 per month to Ramkrishna Prasad was patently perverse and that there was no change in the status or emoluments of Ramkrishna Prasad by the creation of the new post and the employment of Babulal Parekh on it.
So far as the question of the competence of the reference is concerned, we are of opinion that there is no force in it, A similar question was raised before this Court in The Bijoy Cotton Mills Ltd. vs Their Workmen and Another (1) and it was held there on the language of section 2(a)(1) of the , that before that provision could apply to a controlled industry there must be a notification by the Central Government for the purposes of section 2(a)(1) of the .
Section 2(a)(1) is in these terms " I Appropriate Government ' means in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government or by a railway company or concerning any such controlled industry as maybe specified in this behalf by the Central Government, or in relation to an industrial dispute concerning a banking or an insurance company, a mine, an oil field or a, major port, the Central Government.
" The argument is that as sugar is a controlled industry under the Schedule to the Industries (Development and Regulation) Act, No. 65 of 1951, the appropriate (1) [1960] 2 S.C.R 982, 28 218 Government for the purposes of section 2(a)(1) with reference to the sugar Industry is the Central Government.
Reliance is placed on the words " concerning any such controlled industry as may be specified in this behalf by the Central Government " appearing in section 2 (a)(1).
It is true that sugar is a controlled industry under the Industries (Development and Regulation) Act, 1951, but that in our opinion does not conclude the matter.
In order that the appropriate government under section 2(a)(1) may be the Central Government for a controlled industry, it is necessary that such controlled industry should be specified by the Central Government for the purposes of section 2(a)(1).
This in our opinion is obvious from the words " controlled industry as may be specified in this behalf by the Central Government " appearing in section 2(a)(1).
It is not enough that an industry should be a controlled industry to attract this provision of section 2(a)(1) ; it is further necessary that it should be specified in this behalf, namely for the purposes of section 2(a)(1), as a controlled industry by the Central Government, before the Central Government can become the appropriate government within the meaning of section 2(a)(1).
We may in this connection refer to Firebricks and Potteries Ltd., etc.
vs Firebricks and Potteries Ltd. Workers Union Ltd. (1) where the same view has been taken.
We are of opinion that is the correct meaning of these words appearing in section 2(a)(1), as already held in The Bijoy Cotton Mills Ltd. (2) .
The objection that the reference was not competent therefore fails.
We next come to the contention raised on behalf of the mill that there was in fact no prejudice whatsoever so far as the status and emoluments of Ramkrishna Prasad were concerned by the creation of the new post and the appointment of Babulal Parekh on it, and that the tribunal was not justified in any case in granting an increment of Rs. 30 per menses to Ramkrishna Prasad.
The main consideration which influenced the tribunal in passing the order which it did was that in the view of the tribunal Ramkrishna Prasad was superseded by Babulal Parekh who was first appointed as a clerk under him.
This view of (1) I.L.R. [1955] MYS.
(2) ; 219 the tribunal in our opinion is patently erroneous.
The appointment order dated October 4, 1952, clearly shows that Babulal Parekh was appointed as store inches from the very beginning at Rs. 180 per month.
The tribunal referred to certain entries in the attendance register to hold that Babulal Parekh worked as clerk to begin with.
It appears from the attendance register for the months of October, November and December that Babulal Parekh was marked present from October 7 to November 9.
Thereafter from November 11 to the end of December he signed the attendance register.
The statement of Cbaudhari, Labour Welfare Officer of the mill was that the practice in the mill was that officers used to be marked present in the attendance register while clerks used to sign it themselves.
The tribunal has concluded from the fact that Babulal.
Parekh signed the register in November that he must have been a clerk to begin with.
The tribunal, however, completely overlooked that from October 7 to November 9, Babulal Parekh was marked present which would show that he was not a clerk.
The tribunal also overlooked that even from November 28 to the end of December when Babulal Parekh admittedly was not a clerk but store in charge he still signed the register, though he should have been marked present.
Chaudhari was unable to explain how this happened, but he was hardly the person to explain this.
It is, however, clear from this confusion that no importance can be attached to whether Babulal Parekh was marked present in the register or signed it.
The real thing which determined the status of Babulal Parekh was the appointment order dated October 4, 1952, which the tribunal has accepted as correct.
A question was certainly put to Chaudhari at the end of his cross examination that he had manufactured the statements put in by him only the night before but he denied it.
We cannot accept the suggestion on behalf of the respondents that the appointment order was ante dated, for no such suggestion was made to Chaudhari and the tribunal itself does not find so.
It is clear therefore that the finding of the tribunal that Babulal Parekh was appointed as 220 clerk under Ramkrishna Prasad to begin with is patently perverse and it must be held that Babulal Parekh was from the very beginning working as store in charge.
Now in so far as Ramkrishna Prasad was concerned his work and emoluments remained the same after the appointment of Babulal Parekh.
If a higher post was created in the Stores Department because of the increase in work, Ramkrishna Prasad could not claim promotion to it merely because he was working as a store keeper before.
There is of course no question of supersession in this case and therefore there is no reasonable cause for any heart burning.
As the learned tribunal itself points out, " promotion to higher post was the exclusive function of the management " and if a new post is created and a new man appointed, as in this case, it cannot be said that Ramkrishna Prasad 's status was in any way prejudicially affected.
It is also remarkable that after saying all that it could in favour of Ramkrishna Prasad the tribunal did not interfere with the arrangement made by the mill for reasons which were not specified by it in the order.
As such there was no reason for granting an increment of Rs. 30 per mensem to Ramkrishna Prasad, for even the workmen did not claim that he was entitled to any compensation in the shape of an increment in his pay because of the appointment of Babulal Parekh.
The order of the tribunal therefore is patently unsupportable and must be set aside.
We therefore allow the appeal and set aside the order of the tribunal and hold that no relief is due to Ramkrishna Prasad.
In the circumstances we pass no order as to costs.
Appeal allowed.

Output:
A dispute relating to a workman in the appellant sugar mill, situate in Bihar, was raised by the Workers Union and a reference was made by the State Government.
Under section 2 (a) (1) of the , " 'Appropriate Government ' means in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government. or concerning any such controlled industry as may be specified in this behalf by the Central Government. the Central Government ".
The question was whether the State Government was competent to make the reference, as sugar was a controlled industry under the Industries (Development and Regulation) Act, 1951.
Held, that in order that the appropriate government under section 2 (a) (1) of the , may be the Central Government for a controlled industry it is necessary that such controlled industry should be specified by the Central Government, and that in the absence of a notification for the 215 purposes of section 2 (a) (1) of the Act, the State Government was competent to make the reference.
The Bijoy Colton Mills Ltd. vs Their Workmen and Another ; , followed.


Input:
Appeal No. 287 of 1967.
Appeal from the judgment and order dated May 29, 1964 of the Punjab High Court in Civil Writ No. 1609 of 1961.
Harbans Singh and R. N. Sachthey, for the appellants.
The Judgment of the Court was delivered by Shah, J.
The respondents Joint Stock Company has its principal place of business in Bombay, and a branch office in New Delhi.
The Assessing Authority, Karnal, exercising power under the Punjab Professions, Trades, Callings and Employments Taxation Act 7 of 1956, assessed the respondent to, profession tax 537 for the years 1960 61 and 1961 62 and issued a notice of demand for the amount so assessed.
The High Court of Punjab quashed the notices of demand and the assessment orders holding that the respondent did not carry on trade within the State of Punjab and was not liable to be assessed to tax under the Act.
The State of Punjab has appealed to this Court against the order of the High Court.
Section 3 of Act 7 of 1956 provides "Every person who carries on trade, either by himself or by an agent or representative, or who follows a profession or calling or who is in employment, either wholly or in part, within the State of Punjab, shall be liable to pay for each financial year or a part thereof a tax in respect of such profession, trade, calling or employment.
Provided . . .
The respondent, it is common ground, has no branch office or any other place of business in the State of Punjab.
It has also not appointed any agent or representative to carry on business on its behalf within the State.
The respondent supplies goods to the Government of Punjab and certain "semi Government bodies" in the State in execution of orders received at its branch office at Delhi.
The goods are despatched from Delhi by rail or by public motor transport.
Pursuant to the terms and conditions of the "Rate Contract" between the respondent and the Controller of Stores for the State of Punjab, the respondent consigns the goods sold by it to the appropriate Government Department F.O.R. des tination.
Inspection of the goods is made within the State of Punjab.
The price for the goods sold is collected by presenting bills or railway receipts through Banks to the consignees.
The Assessing Authority held that the respondent "may rea sonably be regarded as selling goods within" the State of Punjab because it was supplying goods F.O.R. destination.
The High Court held that the respondent could not in law be regarded as carrying, on trade at the place at which the goods were supplied, merely because the railway or other receipts were taken out in the name of the respondent and presented to the purchasers duly endorsed in their favour to secure realization of the price of the goods.
Liability to pay tax under Act 7 of 1956 arises if a person carries on trade by himself, or through his agent, or follows a profession or is in employment within the State, and not otherwise.
The expression "trade" is not defined in the Act.
"Trade" in its primary meaning is the exchanging of goods for goods or goods for money; in its secondary meaning it is repeated activity in the 538 nature of business carried on with a profit motive, the activity being manual or mercantile, as distinguished from the liberal arts or learned professions or agriculture.
The question whether trade is carried on by a person at a given place must be determined on a consideration of all the circumstances.
No test or set of tests which is or are decisive for all cases can be evolved for determining whether a person carries on trade at a particular, place.
The question, though one of mixed law and fact, must in each case be determined on a consideration of the nature of the trade, the various steps taken for carrying on the trade and other relevant facts.
In the present case, the respondent has no shop or office within the State of Punjab.
The respondent supplies goods within the State pursuant to orders received and accepted at New Delhi, and also receives price for the goods within the State.
But these are ancillary activities and do not in our judgment amount to carrying on trade within the State of Punjab.
We need not refer in detail to cases such as Grainger and Son vs Gough (Surveyor of Taxes) (1); F. L. Smith & Co. vs F. Greenwood (Surveyor of Taxes)(2); and Firestone Tyre Co. Ltd vs Lewellin, (3) which interpret the expression "trade exercised within the United Kingdom" in the English Income Tax Acts, for they merely lay down that for the purpose of the Income Tax Acts, there is no single, decisive or "crucial" test to determine whether the tax payer exercises trade at a given place.
The appeal fails and is dismissed.
The respondent has not appeared at the hearing.
There will, therefore, be no order as to ,costs.

Output:
The respondent a Joint Stock Company, having no shop or office or agent within the State of Punjab, used to supply goods within the State pursuant to orders received and accepted at New Delhi, and also used to receive the price for the goods within the State.
The Assessing Authority, Kamal, assessed the respondent to profession tax under the Punjab Professions, Trades, Callings and Employments Taxation Act, 1956.
The order was quashed by the High Court.
In appeal to this Court, HELD : The activities of the respondent in the State were mere ancillary activities and did not amount to carrying on trade within the State.
[538 C D] The expression "trade" is not defined in the Act.
"Trade" in its primary meaning is the exchanging of goods for goods or goods for money; in its secondary meaning it is repeated activity in the nature of business carried oh with a profit motive, the activity being manual or mercantile, as distinguished from the liberal arts or learned professions or agriculture.
The question whether trade is carried on by a person at a given place, though one of mixed law and fact, must in each case be determined on a consideration of the nature of the trade, the various steps taken for carrying on the trade and other relevant facts.
[537 H 538 E] Grainger and Son vs Gough (Surveyor of Taxes) , F.L. Smith & Co. vs F. Greenwood (Survevor of Taxes), 8 T.C. 193 and Firestone Tyre Co. Ltd. vs Lewellin, distinguished.


Input:
ivil Appeal No. 158 of 1954.
Veda Vyas, (section K. Kapur and Ganpat Rai, with him), for the appellants.
M. C. Setalvad, Attorney General for India (.ill.
N. Phadke and Naunit Lal, with him), for respondent No. 1. 1955.
May 2.
The Judgment of the Court was delivered by JAGANNADHADAS J.
This is an appeal by special leave against the Judgment and order of the Election Tribunal, Akola, Madhya Pradesh, dated the 1st May, 1953, dismissing the election petition filed by the appellants.
It relates to the election for the Akola Constituency of the State Assembly of Madhya Pradesh which was held on the 13th December, 1951, and the result of which was notified in the Gazette on the 4th April, 1952.
The two appellants are the electors of the said constituency.
The first respondent was the successful candidate at the election.
Respondents, Nos. 2, 3 and 4 were the other three candidates who, having been validly nominated went to the polls but were defeated.
The appellants filed the election Petition under section 80 of the Representation of the People Act, 1951 (Act XLIII of 1951) (hereinafter referred to as the Act ' for setting aside the election on various allegations.
The Election Commission admitted the petition after condoning the delay under the proviso to section 85 of the Act and thereupon constituted a Tribunal for the trial of the petition at Akola by notifications dated the 30th July, 1952, and 22nd September 1952.
In due course respondent No. I appeared and filed his written statement on the 6th October, 1952, and the petitioners filed their reply thereto on the 16th October, 1952.
With reference to these pleadings, the Tribunal was of the opinion that it was advisable to frame certain preliminary issues and to dispose of the same before entering on the 431 trial of the case on its merits.
Accordingly, nine pre liminary issues were framed.
(2) Whether there was sufficient cause for presentation of the petition one day out of time.
(3) Whether the petition was defective for non joinder of certain parties as respondents.
(4) Whether the petition is defective for want of proper verification.
(5) Whether the petition was defective for vagueness of the particulars relating to the corrupt practices set out in Schedule A thereto.
The Tribunal found only the first of the above points in favour of the petitioners by a majority.
But in respect of the other four points, it held against the petitioners unanimously.
It is against this dismissal that the appellants have now come up to this Court on obtaining special leave.
Before dealing with the merits of the appeal, it may be mentioned that at an early stage of these proceedings before the Tribunal, an objection was taken to the composition of the Tribunal on the allegation that one of the Members, Shri A. section Athalye was not competent to be a Member thereof on account of his alleged bias in favour of the first respondent.
The bias was sought to be made out by showing that shortly before the election, Shri Athalye had written a letter to the 1st respondent offering to assist him in his election campaign.
On objection being taken, the Tribunal stayed its hands for a preliminary decision of that question.
Meanwhile, the petitioners took proceedings in the High Court for the quashing of the constitution of the Tribunal on the above ground by means of an application under article 226 of the Constitution.
That application was dismissed after hearing both sides.
Thereupon the petitioners moved this Court for special leave against the order of the High Court.
But this Court declined to grant leave.
But this having been already determined against the petitioners in the previous proceedings, we declined to allow the matter to be reopened.
On the other side, the learned Attorney General for the 1st respondent attempted to reopen before us the question as to whether the petition was presented to the Election Commission by an authorised person, which as stated above, was found against him by a majority of the Tribunal.
The ground on which he attempted to reopen this question was that the finding was based on a wrong view as to the burden of proof.
We were not prepared, however, to permit this finding of fact to be reopened in this appeal on special leave, irrespective of the question whether the burden of proof was rightly laid on the petitioners.
The only points, therefore, that have been argued before us are whether the view taken by the Tribunal with reference to the following questions, viz. (1) limitation, (2) joinder of parties, (3) verification, and (4) specification of particulars of corrupt practices in Schedule A attached to the petition, is correct, and if so, whether the same entailed dismissal of the petition.
The questions may be taken up one after the other.
LIMITATION:As stated above, the petition was filed on the 19th April, 1952, admittedly one day beyond time.
On the 28th April, 1952, the petitioners filed also an application for condonation of delay setting out the reasons for the same.
In paragraphs 3, 4 and 5 thereof the circumstances under which the delay is said to have occurred were set out as follows: "3.
The applicants were under the belief that Notice under Rule 113 of the Rules framed under the above Act was published on 5th April, 1952, in the official Gazette of the State of Madhya Pradesh.
They felt therefore that their petition was duly presented within 14 days as prescribed by Rule 119.
Applicants, however, learn that actually the Notice under Rule 113 was published in the Official Gazette of 4th April, 1952.
It therefore appears that there was a delay of 433 one day in the representation of the election petition.
This delay occurred under the following circumstances: 4.
The applicants prepared their election petition on the 17th April, 1952.
They sent the said petition with Shri P. B. Gole, Senior Advocate, Akola, with a written authority to present the petition through any person of his choice at Nagpur on the 18th April.
They also sent with Shri Gole Rs. 1,000 for being deposited in the Government Treasury at Nagpur as required by section 117 of the Act and to obtain Treasury receipt for security of costs to be filed with the petition.
The applicants were under the belief that an officer must have been appointed by the Election Commission under section 81 of the Act to whom election petitions could be represented for the State of Madhya Pradesh at Nagpur.
Accordingly Shri Gole left Akola for Nagpur by the 1 Down Nagpur Mail, reaching Nagpur at about 9 30 A.M. on 18th April, 1952.
Mr. Gole caused the deposit of Rs. 1,000 security for costs to be made in the Government Treasury at Nagpur through Mr. Sidhaye, Advocate, Nagpur, and obtained the necessary Government Treasury receipt on the 18th April, 1952.
He then made enquiries about the officer who may have been appointed to receive the election petitions.
He con sulted R. section Rangole, who was attached to the Election Office at Nagpur.
On enquiries Shri Gole learnt that there was none at Nagpur, who was authorised to receive election petition under the Act.
Under these circumstances Shri Gole booked a seat in the Night Plane for Delhi and flew to Delhi on the 18th and reached there on the morning on 19th April, 1952.
On 19th April Shri Gole caused the petition to be presented to the Secretary to the Election Commission".
The explanation thus furnished was accepted by the Election Commission as appears from the intimation to the petitioners by letter dated the 30th July, 1952.
The Tribunal was of the opinion that notwithstanding the order of the Election Commission condoning the delay and admitting the petition, it was free to 434 reconsider the question by virtue of the powers vested in it under section 90(4) of the Act.
In this view it went into the merits of the explanation furnished and came to the conclusion that the petitioners were negligent and that the delay, even of one day, could not be condoned.
It accordingly held that the petition was liable to be dismissed as barred by time.
Now, apart from the merits of the sufficiency of the cause for delay, the question as to whether, notwithstanding the condonation of the delay by the Election Commission., it was open to a Tribunal to reconsider the matter by virtue of section 90(4) of the Act, is now covered by the decision of this Court reported in Dinabandhu vs Jadumoni(1).
It was therein held that it was not open to the Tribunal to reconsider the matter in such a case.
The conclusion of the Tribunal, therefore, on this point cannot be maintained.
The learned Attorney General attempted to argue that the decision of this Court referred to above was obiter as regards the legal point and required further consideration.
But we were not prepared to permit that question to be reopened.
We were also not satisfied that there was any adequate reason for the Tribunal to interfere with the view taken by the Election Commission condoning the delay of one day on the explanation furnished to it.
This explanation has not been found, even by the Tribunal, to be
JOINDER OF PARTIES: The objection as to joinder of parties arises as follows.
Three persons by name Shri Sohoni, Shri Kulkarni, and Shri Kothkar were nominated as candidates at the election.
Their nominations were found to be in order on scrutiny by the Returning Officer.
But within the time allowed, these three withdrew from the elections under section 37 of the Act.
The petitioners, while they impleaded as respondents the three unsuccessful candidates who went to the polls, did not implead these three persons.
It has been argued before us that this view is erroneous and that persons who filed their nominations and who withdrew from the contest within the prescribed time in spite of their nominations having been found to be in order on scrutiny by the Returning Officer, cannot be said to fall within the category of "candidates duly nominated at the election".
In support of this contention two decisions Sitaram vs Yograjsing(1) and Sheo Kumar vs V. G. Oak(2) have been cited.
These three decisions have treated the decision of the question as depending on a construction of the phrase "at the election" in section 82 of the Act.
The Bombay and Allahabad cases hold that this phrase confines the necessary parties under this section to those who were candidates for the actual poll, while the Patna High Court takes the view that the phrase "at the election" has no such limiting significance.
It appears to us to be unnecessary and academic to go into this judicial controversy having regard to the decision of this Court in Jagan Nath vs Jaswant Singh(4).
If we were called upon to settle this controversy, we would prefer to base the decision not on any meticulous construction of the phrase "at the election" but on a comprehensive consideration of the relevant provisions of the Act and of the rules framed thereunder and of the purpose, if any, of the requirement under section 82 as to the joinder of parties other than the returned candidate.
We are, however, relieved from this, since it has been decided in Jagan Nath vs Jaswant Singh(4) that even if any of the necessary parties other than the returned candidate has not been (1) A.I.R. 1953 Bombay 293.
(3) A.I.R. 1954 Patna 225.
(2) A.I.R. 1953 All. 633.
(4) ; 436 impleaded, the petition is not liable to be dismissed in limine on that sole ground but that it is a matter to be taken into consideration at the appropriate stage with reference to the final result of the case.
In view of this ruling the decision of the Tribunal on this point also cannot be maintained.
The relevant provision in the Civil Procedure Code referred to herein is Order VI, rule 15, clauses (2) and (3), which are as follows: "(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.
(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed".
In the present case the verification of the petition as well as the schedule of particulars of corrupt practices are each signed by both the petitioners and there is now no dispute about it.
The verification clause in the petition is as follows: "The above named applicants hereby affirm that the contents of the above petition are true to information received from the press reports and several other electors and believed by them to be true.
Signed and verified at Akola on The verification clause relating to the particulars of corrupt practices in Schedule A is as follows: "The above named applicants affirm that the contents in this schedule are true to information received and believed by us to be true.
Signed and verified at Akolo, on 437 In the view of the Tribunal there were two defects in these verifications.
They do not refer to any numbered paragraphs nor do they bear the dates on which they were signed.
In the view of the Tribunal the petition was liable to dismissal for non compliance with the specific provision in the Act in this behalf.
That the verification neither in the petition nor in the schedule of particulars bears any date is not disputed.
But it is contended that the view taken by the Tribunal in so far as it was of the opinion that the verifications do not refer to any numbered para graphs is unsustainable.
It is pointed out that the statements in the verification were clearly meant to convey that the various allegations in the petition and schedule were, in their entirety, based on information and belief.
We agree with this contention.
It is to be noticed that a verified pleading is different from an affidavit which., by virtue of Order XIX, rule 3, is specifically required to be confined to such facts as the deponent is able of his own knowledge to prove (except on interlocutory applications, on which statements of his belief may be admitted, provided that the grounds thereof are stated).
But there is notand in the nature of things there cannot be any such limitation for pleadings.
Hence it became necessary in the verification of a pleading to demarcate clearly between the two.
The allegations in the petition in this case purport to be based only on informa tion.
Since the verification clauses refer to the entirety of the petition and the attached schedule, absence of enumeration of the various paragraphs therein as having been based on information cannot be considered to be a defect.
The verifications are accordingly defective only as regards the requirement of the dates thereof.
The question is whether the petition is liable to dismissal on this ground.
Though there may be cases where the date of the pleading and the verification may be relevant and important, it would be a wrong exercise of discretionary power to dismiss 438 an application on the sole ground of absence of date of verification.
In such a case the applicants should normally be called upon to remove the lacuna by adding a supplementary verification indicating the date of the original verification and the reason for the earlier omission.
PARTICULARS OF CORRUPT PRACTICES: The objection is based on section 83(2) of the Act which is as follows: "The petition shall be accompanied by a list signed and verified in like manner setting forth full particulars of any corrupt or illegal practice which the petitioner alleges, including as full a statement as possible as to the names of the parties alleged to have committed such corrupt or illegal practice and the date and place of the commission of each such practice".
The objection is that the particulars of the instances furnished in Schedule A to the petition are all of them vague and not in compliance with the above provision.
The list of particulars is as follows: " SCHEDULE "A".
List of particulars of instances referred in the accompanying petition.
That in the month of December, 1951, respondent No. 1 has been to the premises of Akola Shree Gurudwara, where the Local Sikh Community had assembled to listen to the recitation of the holy book 'Granth Saheb ' on the 7th day of the death of daughter of one Sardar.
Suratsingb.
At this meeting respondent No. 1 canvassed for votes for himself and paid Rs. 201/ , apparently as donation to the Gurudwara, but really as gift for inducing the Sikh Community in the Akola Constituency in general and the Sikhs assembled in particular to induce them to vote for himself at the ensuing election.
Respondent No. 1 was guilty of bribery within the meaning of that term in section 123 of the Representation of the People Act. ' Similar instances of giving illegal gratifications for securing votes of respective groups are (a) Donation to Hkariharpeth Akhada; 439 (b) Payment to Panch bungalow Committee of Bhangis of Old City.
(c) Donation to Bhaji Bazar Association.
(d) Distribution of blankets and Saries and money to voters.
At the instance of respondent No. I a meeting of workers in Berar Oil Industries a concern of Birla, was called by its manager on the eve of the election and they were threatened to vote for respondent No. 1 on pain of losing their service or suffer pecuniary loss, in case they did not vote for respondent No. 1.
Respondent No. 1 caused groups and sections of castes and communities, such as Bohara, Lohars, Marwaries, Muslims, Rajasthanies, Bhangies, to issue appeals stating that resolutions were passed for voting for respondent No. 1, coercing the voters by threats, etc., to vote for respondent No. 1 and openly canvassing on communal and caste lines and using undue influence.
Issuing pamphlets and handbills without names of printer or publisher.
At the time of counting votes in Polling Station No. 53, several folded bundles amounting to about 20 in number, of ballot papers were found in the ballot box of respondent No. 1, when it was opened for counting votes.
This was noted by the Returning Officer.
Each bundle consisted three or more than three ballot papers, folded together.
Obviously each of the bundle of these ballot papers were put in the ballot box by one person, as the ballot papers put in the ballot box by different voters could not automatically fold themselves into a compact bundle in the ballot box.
The ballot papers issued to voters were not put in the box by the voters themselves, but were illegally brought back by the voters and handed over to persons working for and on behalf of respondent No. I on payment of illegal gratification.
These ballot papers thus collected were bundled together 56 440 and put in the ballot box by persons working for and on behalf of respondent No. 1 by taking illegal gratifications.
This was done on 31st December, 1951, at Chandur by persons with the connivance of respondent No. 1. 6.
False personation of several dead voters and voters absent in Pakistan has taken place in Ward No. 12 and 15. 7.
The respondent No. 1 resorted to false propaganda.
His man announced on loud speakers from place to place that rival candidate Dr. Joglekar was of the caste and party of Godse, the murderer of M. Gandhi and a vote for him was a vote for Gandhi 's Murderer.
Another false propaganda was that Dr. Joglekar was Mishra 's man, supported by Mishra 's money.
Lectures for respondent No. 1 in public meetings, including respondent No. I have freely made these false defamatory and malicious statements against Dr. Joglekar, the rival candidate and thus prejudiced the prospects of Dr. Joglekar 's election.
Personal character and conduct of Dr. Joglekar was also falsely attached, thus prejudicing his prospects of election.
Voters were carried in hired carts at many polling stations, particularly at Kapshi Polling Station.
This was arranged by persons working for and on behalf of respondent No. I at his expense and connivance.
A written objection for police enquiry was given at Kapshi and one in Rifle Range area.
Respondent No. 1 spent lacs of rupees over his election transgressing the prescribed limit of Rs. 6,000.
He has given a totally untrue return of election expenses.
This is in contravention of law.
Mohota Mills released workers and paid them for canvassing work for respondent No. 1 on polling day.
Substitutes for these workers were engaged by the mills and they were also paid.
This was done at the instance of respondent No. I".
There can be no doubt that almost all the instances herein above set out are extremely vague and lack sufficient particulars.
Learned counsel for the appel 441 lants invited our attention to the fact that the Tribunal, while considering the question of vagueness dealt only with the instances of corrupt practices specified in paragraphs I (a),I (b), I (c), I (d), 2, 4, 5, 6, 7 and 8 and not others.
He accordingly contended that, by implication, the Tribunal was not prepared to hold that items mentioned in paragraphs 1, 3, 9 and 10 were vague.
He urged that at least these four items ' must be taken not to be vague and that there is no reason why the petitioners should not have been called upon to amend the schedule by furnishing better particulars as to the rest.
He further urged that, at any rate, they were entitled to a trial in respect of those four items of corrupt practices.
We cannot agree with learned counsel for the appellants that the items set out in paragraphs 3, 9 and 10 are not vague.
There is no specification therein of the requisite details which the Act in terms requires.
Section 83(2) requires not only what may reasonably be considered "full particulars" having regard to the nature of each allegation, but enjoins in terms that the following particulars should also be given.
(2) The date of the commission of each such corrupt or illegal practice.
(3) The place of commission of each such corrupt or illegal practice.
There can be no reasonable doubt that the requirement of "full particulars" is one that has got to be complied with, with sufficient fullness and clarification so as to enable the opposite party fairly to meet them and that they must be such as not to turn the enquiry before the Tribunal into a rambling and roving inquisition.
On a careful scrutiny of the list, in Schedule A we are satisfied that none of the items except that which is set out in paragraph I of item No. I can be said to comply with the requirements of section 83(2).
In this view of the contents of Schedule A, the contention of the learned counsel for the appellants is that even so the Tribunal should have called upon the petitioners to furnish better particulars as regards all the other items, by virtue of the ,powers conferred on it under section 83(3), and in the 442 alternative, it should have at least called upon them to substantiate the allegation in paragraph 1 in item No. 1, which was sufficiently specific and which, if made out, might have resulted in the election being set aside.
On the question whether or not the Tribunal should have called upon the petitioners to amend the schedule by furnishing better particulars, the learned Attorney General for the 1st respondent has invited our attention to the objection taken in the written statement as regards the vagueness of the particulars and to the various orders made by the Tribunal as appears from the order sheet of the case.
In the written statement of the 1st respondent paragraph 9 is as follows: "9.
(a) It is, further, submitted that the petition ought to be dismissed as it does not contain concise statement of material facts on which the petitioners rely.
Similarly the list of particulars given in the schedule or in the petition are not in compliance with section 83(2).
(b) Without prejudice to the generality of this objection, it is further submitted that para V of petition read with para VI(e) will show that the particulars given in Schedule relate to corrupt and illegal practices alleged to have been committed by respondent No. 1 and by his agents and persons working on.
behalf of respondent No. I with his connivance.
Such particulars are bad in law.
The applicants are bound to state the names of the persons who are alleged to have actually committed the corrupt or illegal practice.
(c) Paras 1 and 2 of the petition allege that there was no free election by reason of general bribery and undue influence exercised by and on behalf of respondent No. 1.
Similarly the allegation in para 2 is that the coercion was the result of manipulation by ,or at the instance of respondent No. 1.
Thus these allegations must be supported by giving the necessary particulars regarding the names, date and place of commission of corrupt or illegal practice alleged.
The allegations in paras 1 and 2 of the petition are allegations of corrupt and illegal practice within the mean 443 ing of sections 123, 124 and 125 of the Act, and are not allegations of a general character which do not implicate the candidate personally.
(d) Further by way of example, para I of the schedule, no names, date of the alleged practices are given.
Same is the case with the allegations in paras 2, 3, 4, 5, 6, 7, 8, 9 & 10.
This has not been done and the petition, therefore, ought to be dismissed on this ground".
Now the order sheet of the proceedings before the Tribunal discloses the following.
By order dated the 16th October, 1952, the Tribunal decided that the case was in the first instance to be taken up for decision on the preliminary issues.
In the interests of justice the time is granted. .
The application for amendment and for particulars to be filed five days before the date of hearing and copies thereof be given to the petitioners.
The petitioners shall be ready with their replies on the date of hearing".
The 444 latter has amended his application, to which there was no objection".
In view of the specific objection taken in the written statement and the opportunities which the petitioners had for amending the petition which the above orders disclose, there is considerable force in the contention of the learned Attorney General that the petitioners, for some reasons best known to themselves, have come forward with a somewhat irresponsible petition and that while the Court has undoubtedly the power to permit amendment of the schedule of corrupt practices by permitting the furnishing of better particulars as regards the items therein specified, there was no duty cast upon the Tribunal to direct suo motu the furnishing of better particulars.
It is true that the petitioners in the reply that they filed to the written statement of the 1st respondent and in answer to the objection that the particulars as to the alleged corrupt practices were vague, said as follows: "The petitioners are prepared to give further particulars if the Tribunal is pleased to permit under section 83(3) of the Representation of the People Act,.
This reply was filed on the 16th October, 1952, which is the very date on which the first of the above orders extracted from the order sheet was passed.
It is also, true that the order dated the 17th January, 1953, shows that the respondent No. 1 at one stage, indicated an intention himself to ask for particulars.
But in a matter of this kind the primary responsibility for furnishing full particulars of the alleged corrupt practices and to file a petition in full compliance with section 83(2) of the Act was on the petitioners.
While undoubtedly the Tribunal has, in our opinion, taken all too narrow a view of their function in dealing with the various alleged defects in the petition and in treating them as sufficient for dismissal, the petitioners are not absolved from their duty to 445 comply, of their own accord, with the requirements of section 83(2) of the Act and to remove the defects when opportunity was available.
They cannot take shelter behind the fact that neither the Tribunal nor the respondent No. 1 has, in terms, called upon them to furnish better particulars.
But all the rest were not only extremely vague but no amendment was applied for nor was an opportunity for amendment of pleadings in general, open on two occasions, availed of.
Learned counsel for the appellants urges that however this may be, there was no justification for the Tribunal dismissing the petition in toto and that it was bound to have called upon the petitioners to substantiate the first allegation by evidence after striking out, if need be, the rest of the particulars, under the powers vested in it under Order VI, rule 16, Civil Procedure Code.
On the other hand the learned Attorney General for the respondent No. 1 urges that in such a situation it was open to the Tribunal to consider whether, taking the petition as a whole and in its total effect, there was substantial compliance with the requirements of section 83.
He contends that if, in exercise of its judgment, it thought that there was substantial non compliance, notwithstanding that one out of the various items may have been specific, it was not bound to exercise its discretion in favour of the petitioners by ordering a striking out of the various items and to direct the trial of the petition to be confined to one single item which may be in order.
The learned Attorney General argues that this would be really making out for the petitioners a different petition from what they brought up before the Election Com mission and that in this class of cases the Tribunal had the right and the duty to exercise great strictness 446 in order that the machinery for setting aside elections might not be abused for the purpose of maligning the successful candidate by levelling vague and iriesponsible charges against him.
While there is considerable force in this argument, we think that in a case of this kind the Tribunal when dealing with the matter in the early stages should not have dismissed the application.
It should have exercised its powers and called for better particulars.
On non compliance therewith, it should have ordered a striking out of such of the charges which remained vague and called upon the petitioners to substantiate the allegations in respect of those which were reasonably specific.
We are, therefore, of the opinion that the order of the tribunal in dismissing the petition outright was clearly erroneous.
Notwithstanding this opinion we would, in the normal course, not have felt called upon to interfere in this case under article 136 after this lapse of time and at the instance of persons like the appellants before us who are mere voters having no direct personal interest in the result of the election.
But there is one other circumstance in this case which we have noticed and which we feel we ought not to overlook, though in the course of the arguments the same was not brought to our notice.
Paragraphs 6(a), (b) and (c) of the application for setting aside the election sets out certain grounds of alleged disqualification of the returned candidate to stand for the election.
It is also stated therein that objections in this behalf were taken at the time of scrutiny of the nomination papers but that they were summarily overruled by the Returning Officer without any enquiry and that accordingly the objections to the disqualification have been raised in the application.
The objections are as follows: "6.
The material facts in support of the grounds are as follows: (a) The election of candidate for the Madhya Pradesh State Assembly in the single member Akola Constituency was announced to be held on 31 12 1951.
Nominations were to be filed on or before 15 11 1951, 447 and scrutiny of nomination was due on 17 11 1951.
At this time of scrutiny objection was taken to the nomination paper of respondent No. 1 on several grounds but the material grounds were that respondent No. 1 was disqualified for being chosen as and for being a Member of Madhya Pradesh State Assembly under Chapter III, section 7 (d) of the Representation of the People Act, 1951 (Act XLIII of 1951).
That the respondent No. 1 is disqualified to fill the seat under the Act., because he is the Managing Agent or Managing Director of Rajasthan Printing and Litho Works private limited company under the Indian Companies Act.
He has, as a share holder and director, interest, in contracts for supply of goods, viz. stationery, paper and printing materials, etc., to the State Government of Madhya Pradesh.
He has also interest in contracts for the execution of works or performance of services, such as printing, etc., under taken by the State Government of Madhya Pradesh.
The respondent No. 1 gets a share by way of commission on sales effected by the Limited Company.
He has, therefore, by himself interest in the contracts of the company with the State Government of Madhya Pradesh.
(b)The respondent No. 1 is a partner in the firm Berar 'General Agency.
The said firm has entered into a contract for the performance of cloth distribution on behalf of the State Government to retailers and holds a licence for the same.
The respondent No. 1, therefore, has interest by himself in the said contract for the performance of services undertaken by the Government.
(c)The respondent No. 1 is the proprietor of the monthly Journal "Prawaha" and a by weekly paper "Matru bhumi".
These publications print Government advertisements on contract basis.
The respondent No. 1 has, therefore, interest in the said contract for the performance of services undertaken by the State Government Madhya Pradesh.
The sales and other details of the "Matru bhumi" concern are noted in the private accounts of the respondent No. 1.
The 1st respondent in answer to these allegations states as follows: "It is denied that there was any improper acceptance of the nomination paper of respondent No. 1 and in particular it is denied that any of the allegations made in paragraph 6(a), (b) & (c) of the petition constitute in law a disqualifications of section 7 of the Representation of the People Act.
Without prejudice to this it is submitted that the respondent No. 1 was not suffering from any of these disqualifications in fact on the date of the submission of the nomination paper".
Having regard to the nature of the alleged disqualifi cation, which is substantially to the effect that the returned candidate had interest in contracts with the Government at the relevant dates, it was very necessary that the matters should have been cleared up in the enquiry before the Election Tribunal.
It is not in the interest of purity of elections that such allegations of disqualification should be completely ignored without enquiry and it appears rather surprising that the Tribunal should have ignored them and exercised its power to dismiss the petition.
However reluctant we might be to interfere in a matter like this after the lapse of three years and four months and with only an year and eight months before the general elections, we feel constrained to send this matter back for due enquiry.
But before doing so and in view of the delay and other circumstances that have already happened, 449 we, in exercise of the powers which the Tribunal in the normal course might itself have exercised, direct the striking out of all the items of alleged corrupt practices set out in Schedule A excepting the one covered by paragraph I of item 1, i.e., as follows: "That in the month of December, 1951, respondent No. I had been to the premises of Akola Shree Gurdwara, where the Local Sikh Community had assembled to listen to the recitation of the holy book 'Granth Saheb ' on the 7th day of the death of daughter of one Sardar Suratsingh.
At this meeting respondent No. 1 canvassed for votes for himself and paid Rs. 201, apparently as donation to the Gurudwara, but really as gift for inducing the Sikh Community in the Akola constituency in general and the Sikhs assembled in particular to induce them to vote for himself at the ensuing election.
Respondent No. I was guilty of bribery within the meaning of that term in section 123 of the Representation of the People Act".
The case will, therefore, go back for enquiry and trial with reference only to (1) the allegations in paragraphs 6(a), (b) and (c) of the application for setting aside the election, and (2) the allegations in paragraph 1 of item 1, in Schedule A attached to the application as set out above.
The Election Commissioner will now reconstitute an appropriate Tribunal for the purpose.
The Tribunal when constituted and before proceeding to trial will call upon the petitioners to rectify the lacuna as to dates in the verification clauses in the petition and the schedule.
It is to be hoped that the fresh proceedings before the Tribunal will be disposed of at a very early date.

Output:
The appellants, two of the electors of the Akola Constituency of the Madhya Pradesh State Assembly, filed an Election Petition against Respondent No. 1, the successful candidate in the election held on December 13, 1951, and the three other respondents who having been validly nominated went to the polls but were defeated.
The Election Petition, under Section 80 of the Representation of the People Act of 1951, was admittedly time barred by one day.
The Election Commission condoned the delay under the proviso to Section 85 of the Act and constituted a Tribunal for the trial of the petition.
On pleadings of the parties, nine issues were framed by the Tribunal which are covered by the following questions: (1) Whether the election petition was presented by a properly authorised person.
(2) Whether there was sufficient cause for presentation of the petition one day out of time.
(3) Whether the petition was defective for non joinder of certain parties as respondents.
(4) Whether the petition was defective for want of proper verification.
(5) Whether,the petition was defective for vagueness of the particulars relating to the corrupt practices set out in Schedule A thereto.
The Tribunal found only the first of the above points in favour of the petitioners by a majority.
But in respect of the other four points, it held against the petitioners unanimously.
As a result of the adverse findings on these four points, the petition was dismissed without any trial on the merits.
It is against this dismissal that the appellants have now come up to this Court on obtaining special leave.
When the delay in submitting an election petition is condoned 429 by the Election Commission in exercise of its power under the proviso to Section 85 of the Representation of the People Act (Act XLIII of 1951), it is not open to the Election Tribunal, under Section 90(4) of the Act, to reconsider the question of limitation.
Even if, according to the requirement of Section 82 of the Representation of the People Act, any of the necessary parties other than the returned candidate has not been impleaded, the petition is not liable to be dismissed in limin on that sole ground; but it is a matter to be taken into consideration at the appropriate stage with reference to the final result of the case.
Section 83(1) of the Act provides that an election petition has to be verified in the manner provided for verification of pleadings under the Code of Civil Procedure.
Clauses (2) and (3) of rule 15 in Order VI of the Code lay down the procedure for verification of pleadings.
Apart from those cases where the date of the pleading and the verification may be relevant and important, it would be a wrong exercise of discretionary power to dismiss an application on the sole ground of the absence of the date of verification.
In such a case the applicant should normally be called upon to remove the lacuna by adding a supplementary verification indicating the date of the original verification and the reason for the earlier omission.
The requirement of "full particulars" of corrupt practices in Section 83(2) of the Act, is one that has got to be complied with, with sufficient fullness and clarification, so as to enable the opposite party to meet the allegations against him fairly, and so as to prevent the enquiry from being turned into a rambling and roving inquisition.
The primary responsibility for furnishing full particulars of alleged currupt practices and for filing a petition in full compliance with Section 83 (2) of the Act is that of the petitioners.
If they fail to do so initially it is their duty and responsibility to remove the defects when opportunity is available.
Tribunals, however, should not take an all too narrow view of their function in dealing with the various alleged defects in the petition and dismiss it on the ground of want of particulars.
They should call for better particulars and if that order was not complied with strike out such of the charges as are vague.
The petitioners also alleged that the returned candidate was disqualified to stand because he had interest in contracts with the Government.
But the Tribunal ignored these allegations and without enquiring into their truth dismissed the petition on the ground that the allegations relating to the charge of corrupt practices were vague, Held that it was not in the interest of purity of elections that such allegations of disqualification should be ignored and that it was a matter which called for enquiry.
Case remitted for enquiry with reference to the allegations that the returned candidate was disqualified and the charge of corrupt practice, which was held to be not vague.
Dinabandhu vs Jadumoni ( ; and Jagan Nath vs Joswant ([1954] S.C.R. 892), followed, 430


Input:
iminal Appeal No. 58 of 1959.
Appeal by special leave from the judgment and order dated November 7, 1958, of the orissa High Court in Original Criminal Misc.
Case No. 8 of 1958.
A.V. Viswanatha Sastri, H. B. Khanna and T. M. Sea, for the appellant.
H. N. Sanual, Additional Solicitor General of India, B. M. Patnaik, ;section N. Andley, J. B. Dadachanji and Ramewar Nath, for respondent No. 1. 1961.
March 14.
The Judgment of the Court was delivered by MUDHOLKAR, J.
In this appeal by special leave, the appellant who has been found guilty of contempt of court by the High Court of Orissa is challenging his conviction.
To this appeal, as well as to criminal appeal 2 of 1960 in which another person is challenging his conviction for contempt of court by the same High Court, the Chief Justice and the Judges of the High Court have been made parties.
The learned Additional Solicitor General who has put in an appearance for a limited purpose has raised a point that in such matters it is not at all necessary to make the Chief Justice and the Judges of the High Court parties.
He points out that in England in all contempt matters the usual title of the proceeding is "in re. . . . (so and so)", that is the person who is proceeded against for contempt.
The same practice, according to him, is followed in appeals.
We must, however, point out that in appeals preferred to 321 the Privy Council from convictions for contempt by the High Courts in India as well as in appeals before this Court, the Chief Justice and the Judges of the High Court concerned have been made respondents.
In Ambard vs Attorney General for Trinidad& Tobago (1) we find that the Attorney General was made a party to the appeal.
The question raised by the learned Additional Solicitor General is of some importance and we think it desirable to decide it.
In every suit or appeal persons who claim relief or against whom relief has been given or persons who have or who claim the right to be heard must undoubtedly be made parties.
That is because they have an interest in the decision or the result of that case.
But where Judges of a High Court try a person for contempt and convict him they merely decide a matter and cannot be said to be interested in any way in the ultimate result in the sense in which a litigant is interested.
The decision of Judges given in a contempt matter is like any other decision of those Judges, that is, in matters which come up before them by way of suit, petition, appeal or reference.
Since this is the real position we think that there is no warrant for the practice which is in vogue in India today, and which has been in vogue for over a century, of, making the Chief Justice and Judges parties to an appeal against the decision of a High Court in a contempt matter.
We may point out that it is neither necessary nor appropriate to make the Chief Justice and the Judges of a High Court parties to a legal proceeding unless some relief is claimed against them.
In a contempt matter there is no Question of a relief being claimed against the Chief Justice and the Judges of the High Court.
The present practice should, therefore, be discontinued and instead, as in England, the title of such proceedings should be "in re. . (the alleged contemner)".
Now we address ourselves to the merits of this case.
The appellant was a Sub Divisional Magistrate at Dhenkanal in the year 1957.
In a criminal matter (1)(1936) A.C. 322.
41 322 before him a Magistrate III class, Dhenkanal passed an order under section 522, Criminal Procedure Code putting the complainant, one Golam Mohammed in possession of some property.
The order was actually executed Pion October 14, 1955.
It was also confirmed by the Additional District Magistrate in appeal.
It was, however, set aside by the High Court in revision on August 27, 1957.
The opposite party, one Sarif Beg, thereupon made an application on November 20,1957 before the appellant for redelivery of possession.
This application was opposed by Golam Mohammed.
It was heard by the appellant on November 21, 1957, and order was reserved till November 23, 1957.
Apparently the order was not ready and so the matter was adjourned to November 27, 1957.
That day the application was allowed and compliance was directed by December 2, 1957.
While these proceedings were going on, an application was made by the complainant to the High Court apparently for a review of its previous order.
By order dated November 25, 1957 this application was admitted by P. V. Balakrishna Rao J. He also granted an interim stay of the proceedings in the case before the Sub Divisional Magistrate, Dhenkanal but did not direct that the said order should be communicated to the Sub Divisional Magistrate by telegram.
On November 26, 1957 an application bearing an illegible signature was made to the Magistrate in which, amongst other things, it was stated "that the petition being not maintainable the opposite party has once more moved the Hon 'ble High Court in the matter and it has been ordered that further proceedings should be stayed until the disposal of the opposite party 's revision".
Evidently, by "opposite party" the applicant meant himself and by "revision" he meant the review application made by him.
Along with this application the complainant filed a telegram addressed to Mr. Neelakanth Misra, Pleader, Dhenkanal saying "Golam Mohammad 's case further proceedings stayed, Ram".
It does not appear from the order sheet of the Magistrate that in the proceedings before him Mr. Neelakanth Misra represented the complainant.
However, we will assume that he did so.
Even then, there 323 is nothing to indicate as to who "Ram" is.
There is no suggestion that he was the Advocate who represented the complainant before the High Court in the proceeding before it.
It would appear that on November 7 25, 1957 the Sub Divisional Magistrate was out of,, headquarters and, therefore, the second officer directed that the application be placed before the Sub Divisional Magistrate on his return.
The Sub Divisional Magistrate refused to act on this telegram but made the following endorsement on November 27, 1957 on what is said to be the complainant 's application: "No action can be taken on telegram, File." He then proceeded to deliver his/ order on the opposite party 's application for restitution.
A copy of the order of the High Court was received at Dhenkanal on November 28, 1957.
On that day the Sub Divisional Magistrate was absent and the second officer made the following entry in the order sheet: "Seen.
A.D.M 's D.S. No. 326 dated 28 11 57.
In Cr.
Case No. 90/57 Hon 'ble High Court has stayed further proceedings.
Stay further proceedings.
Put up before S.D.M. Inform parties.
" Consequent oil this endorsement no writ for re delivery of possesion was issued and thus the status quo was maintained.
Upon perusal of the records on August 18, 1957 in connection with the application for review made by the complainant the High Court ordered the issue of a notice to the appellant on August 25, 1958 to show cause why he should not be committed for contempt.
The appellant in a lengthily statement explained all the facts and also stated that he had not the slightest intention to disobey or go beyond the orders and directions of the High Court and that he passed the order dated November 27, 1957 because the complainant 's application for stay was not accompanied by an affidavit; nor was it signed by the complainant or his lawyer.
He further stated that he should not be held liable for contempt because he had "no intention to prejudice or affect the course of justice in the disposal of the matter pending before the High 324 Court" and added that he acted in good faith in discharge of his official duties.
Finally he stated that if after considering his explanation the Court found him guilty of disobeying its order he expressed his regret and tendered his apology for what he had done.
This apology was regarded as merely a conditional apology and was not accepted.
After an elaborate consideration of the case law on the question of disobedience of orders by subordinate courts, the High Court found the Sub bivisional Magistrate guilty of contempt and sentenced him to pay a fine of Rs. 100.
By the same order the High Court dismissed the review application preferred before it by the complainant.
Before a subordinate court can be found guilty of disobeying the order of the superior court and thus to have committed contempt of court, it is necessary to show that the disobedience was intentional.
There is no room for inferring an intention to disobey an order unless the person charged had knowledge of the order.
If what a subordinate court has done is in utter ignorance of an order of a superior court, it would clearly not amount to intentional disobedience of that court 's order and would, therefore, not amount to a contempt of court at all.
There may perhaps be a case where an order disobeyed could be reasonably construed in two ways and the subordinate court construed it in one of those ways but in a way different from that intended by the superior court.
Surely, it cannot be said that disobedience of the order by the subordinate court was contempt of the superior court.
There may possibly be a case where disobedience is accidental.
If that is so, there would be no contempt.
What is, therefore, necessary to establish in a case of this kind is that the subordinate court knew of the order of the High Court and that knowing the order it disobeyed it.
The knowledge must, however, be obtained from a source which is either authorised or otherwise authentic.
In the case before us it is not clear as to who the person who signed the application dated November 27, 1957 was because the signature is illegible.
It was not countersigned by a pleader nor is there anything to show that it was presented 325 in court by a pleader authorised to appear on behalf of the complainant.
Furthermore, it was not accompanied by an affidavit.
Therefore, there could be no guarantee for the truth of the facts stated there The in.
No doubt, it was accompanied by a telegram and even though it was addressed to a pleader there is nothing to indicate that he was authorised to appear for the complainant.
Further it is not possible to say as to the capacity of the sender.
Had the telegram been received from the court or from an advocate appearing on behalf of the complainant before the High Court and addressed either to the court or pleader for the complainant different considerations would have arisen and it may have been possible to take the view that the information contained therein had the stamp of authenticity.
Of course, we do not want to lay it down here as law that every telegram purporting to be signed by an advocate or a pleader is per se guarantee of the truth of the facts stated therein and also of the fact that it was actually sent by the person whose name it bears.
In order to assure the Court about these matters an affidavit from the party would be necessary.
Upon the materials before us we are satisfied that the Sub Divisional Magistrate was entitled to ignore the telegram as well as the application.
We, therefore, hold that his refusal to act on the telegram did not amount to contempt of court.
We may add that the fact that on receiving a copy of the High Court 's order through the Additional District Magistrate not only were further proceedings stayed but a writ to redeliver possession was not permitted to issue.
This would show clearly that there was no intention on the part either of the Sub Divisional Magistrate or the second officer to disobey the order of the High Court.
The conviction as also the fine of the appellant is erroneous and accordingly set aside.
Appeal allowed.

Output:
Under an order passed by the appellant, a Magistrate, one G was put in possession of some property on October 14, 1955.
in revision the order was set aside by the High Court on August 27, 1957, and the opposite party S applied, on November.
20, 1957, to the appellant for redelivery of possession.
G applied to the High Court for a review of its previous order and on November 25, 1957, the application was admitted and an interim stay was granted of the proceedings before the appellant.
On November 26, 1957, an application bearing an illegible signature and not Supported by an affidavit was filed before the appellant indicating that the High Court had stayed the proceedings.
A telegram addressed to a pleader, not the Counsel for G, was filed along with the application.
The appellant refused to act on this application and telegram and on November 27, 1957, he passed an order allowing the application of S for restitution.
On November 28, 1957, a copy of the order of the High Court was received and thereupon the writ for redelivery of possession was not issued.
The High Court convicted the appellant for contempt of court for passing the order for restitution on November 27, when the High Court had stayed the proceedings.
The appellant appealed to the Supreme Court and impleaded the Chief justice and judges of the High Court as respondents.
320 Held, that the appellant was not guilty of cortempt of court.
Before a subordinate court can be held to be guilt, of contempt of court it must be stablished that it had knowledge of the order of the High Court and intentionally disobeyed it.
The knowledge must be obtained from a source which was either authorised or otherwise authentic.
In the present case the appellant was entitled to ignore the application as well as the telegram.
In a contempt matter the Chief justice and judges of the High Court should not be made parties and the title of such a proceeding should be "In re. . the alleged contemnor".


Input:
Appeal No. 306 of 1961.
198 Appeal by special leave from the Judgment and order dated May 16.
, 1959, of the Industrial Court Bombay, in Appeal (I.C.) No. 90 of 1959.
J.P. Mehta and I.N. Shroff, for the appellant.
N.M. Barot, Secretary, Labour Association, for the respondent No. 3. 1962.
February 15.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
The appellant, the Fine Knitting Co. Ltd., was incorporated in 1908 and its principal activity then Was to Manufacture hosiery.
In 1924, when the appellant shifted its factory from.
Barejadi to Ahmedabad, it installed spinning machinery with 9000 spindles with a view to ensure suitable and even supply of yarn for its hosiery manufacture.
On May 30, 1939, the Government of Bombay issued a notification under the Bombay Industrial Disputes Act, 1938 (No. XXV of 1938), whereby hosiery concerns were included in the definition of 'Cotton Textile Industry '.
Subsequently on July 17, 1945, another notification was issued as a result of which the hosiery manufacture was excluded from the Cotton Textile Industry and it was covered by a separate notification issued under the said Act.
This latter notification which was made applicable to the Hosiery Industry specified that the said notification inter alia, to all concerns using power and employing twenty or more persons which are engaged in the manufacture of hosiery or other knitted articles made of cotton and all processes incidental or supplementary thereto.
After this notification was issued, the appellant ceased to be covered by the extended and inclusive definition of the 'Cotton Textile Industry ' and was recognised as a Hosiery concern being engaged in the Manu facture of hosiery.
Later, in 1946, the Bombay Industrial Relations Act, 1946 (No. XI of 1947) (hereinafter called the Act.), was applied to the 199 industries to which the Bombay Industrial Disputes Act bad been applied, as a result of s.2(3) of the former Act.
In consequence, for the purposes of the Act, the appellant concern was recognised as an undertaking of the Hosiery Industry under section 11 This was the result of notification No. 10 of 1948, issued by the Registrar under the Act.
This position was recognised by the Industrial Tribunal in indus trial adjudications concerning disputes between the appellant and its workmen.
Even so, respondent No. 3, the Textile Labour Association, Ahmedabad, sought to reopen the issue by applying by to the Registrar on October 16 1953, that the appellant 's factory should be recognised as an undertaking both in the Cotton Textile Industry and the Hosiery Industry.
The Registrar who is the second respondent in the present appeal hold an enquiry and ultimately came to the conclusion that there was no justification for splitting up the concern into two units and recognising them as suggested by the third respondent.
The third respondent did not prefer an appeal against the said decision of the second respondent; but respondent No. 4 who are the five elected representatives of the employees of the appellant sought to challenge the said decision of the second respondent by preferring an appeal to the Industrial Court, respondent No. 1.
The appellant contended that respondent No. 4 were not entitled to prefer an appeal because they were not parties to the proceedings in the original application before the second respondent.
This preliminary objection was upheld and the appeal preferred by respondent No. 4 was dismissed.
The result was that the order passed by the Registrar rejecting the application made by respondent No. 3 concluded the dispute.
Even while the said appeal was pending before the first respondent, respondents Nos. 3 and 4 200 initiated the present proceedings by means of two applications made before the second respondent in which the same relief was claimed that the appellant concern should be recognised as an undertaking both in the Cotton Textile Industry and in the Hosiery Industry.
The second respondent, however, rejected these applications on the ground that since he gave his earlier decision, there had been no change of circumstances and so there was no justi fication for reconsidering the matter over again.
The third and the fourth respondents then went in appeal before the first respondent and their appeals were allowed by the first respondent and a direction was issued that the appellant company should be recognised as two undertakings one in the Cotton Textile Industry and the other in the Hosiery Industry.
The appellant then moved the High Court of Bombay under Articles 226 and 227 of the Constitution and challenged the validity of the order passed by the first respondent.
, In the High Court the parties took an order by consent on August 20, 1958.
As a result of this consent order, the direction issued by the first respondent was set aside and the matter was remanded to the second respondent to enable him to hold a fresh enquiry and to dispose of the dispute between the parties in accordance with law.
On February 14, 1959, the second respondent pronounced his decision.
He came to the conclusion that in the circumstances disclosed on evidence, the best courts would be to recognise the spinning and hosiery sections of the appellant company as two separate undertaking and treat them as two separate enterprises.
That is why under section 11(1) he decided to recognise the Fine Knitting Co. Ltd. (Hosiery Section) and the Fine Knitting Co. Ltd. (excluding Hosiery Section) as undertakings in the Hosiery Industry and the Cotton Textile Industry respectively The appellant was aggrieved by this order and so is preferred appeals before the first 201 respondent.
The respondents Nos. 3 and 4 also challenged the decision of the second respondent and contended that the entire concern of the appellant should be treated as Cotton Textile Undertaking.
All the three appeals failed and the first respondent confirmed the order passed by the ,second respondent.
The result is that the appellant concern is recognised as consisting of two undertakings, the Hosiery Section and the rest excluding the Hosiery Section.
It is against this order of the first respondent that the appellant has come to this Court by special leave.
The first point which Mr. Mehta has strenuously urged before us on behalf of the appellant is that on a proper application of the tests laid down by this Court, it should be held that the spinning and the Hosiery Sections in the appellant 's establishment are one concern and in support of this argument he has referred us to the decisions in the Associated Cement Companies Ltd. vs Their Workmen(1), Pratap Press vs Their Workmen (2) and Pakshiraja Studios V.
Its Workmen (3).
This question has been recently considered by this Court in the case of the Honorary Secretary, The South India Millowners ' Association vs ' The Secretary,Coimbatore District Textile Workers ' Union, Coimbatore (1).
in which judgment has been pronounced on February 1, 1962.
In the last mentioned case, this Court has examined the relevant earlier decisions and has come to the conclusion that though the question about the unity of two industrial establishments has to be considered in the light of the relevant tests laid down from time to time, it would be unreasonable to treat any one of the said tests as decisive.
As has been observed in that case, in dealing with the problem, several factors are relevant, but it must be remem bered that the significance of the several factors (1) [1960) I S.C.R. 703.
(3) [19611 (2) [1960] I. L.L,J. 497.
(4) [1962] Supp. 2 S.C R. 925 202 would not be the same in each case nor their importance.
It is in the light of these decisions that the point raised by Mr. Mehta has to be considered .
Mr. Mehta contends that in the present case there is unity of ownership and as a necessary corollary, there is unity of management , supervision and control; there is unity of purpose and design and he argues that there is complete functional integration.
According to him , as no hosiery could be maufactured without yarn, there is such a functional unter dependence between the cannot exist without the former.
There is also unity of finance and in consequence, there is one capital and depreciation fund account, of expenditure and income, one balance sheet and one profit and loss account .
There is also unity of employment and the two concerns functions under the same roof; so there is unity of habitiation .
It is on these grounds that Mr.
Mehta contends that the first and the second respondents were in error in splitting up the appellant 's establishment into two sections and recoginsing them separately as such.
In dealing with the significance and the effect of the factors on which Mr.
Mehta has righlty relied it is necessary to bear in mind certain other relevant factors on which the decision under appeal is substantially based.
It is true that in 1924, the spinning section of the establishment may have begun as a subsidiary to the hosiery section and in order to serve as its feeder.
But the evidence on the record clearly shows that the position is now reversed and that the spinning section has now assumed major importance and hosiery takes a minor place in the industrial activities of the app minor place in the industrial activities of the appellant.
The inspection notes made by the second respondent show that it was admitted by the 203 management that the spinning, section has now developed to such an extent that it is like aspinning mill by itself; it can no longer be regarded as a minor, section attached to the hosiery works.
It was conceded before the second respondent that only about 20% of the yarn manufactured in the spinning section is consumed for hosiery purposes while the rest is available to be sold in the market.
The production.
figures in the spinning section and the consumption of the yarn produced in that section unmistakably point to the fact that the spinning section is no longer a minor department run by the appellant solely for the purpose of its hosiery section.
ID 1955 in the months of November and December, the production in the Spinning department was worth Rs. 1,17,742 whereas whatever was consumed in the knitting department was only Rs. 23,817 leaving a balance which was sold for Rs. 93,925.
The corresponding figures for the year, 1956 are Rs. 6,70,854, Rs. 1,40,105 and Rs.5 30,749.
Similar figures for 1957 are Rs.8, 17, 153, Rs. 1,31,725 and Rs. 7,04,018 and for 1958 are Rs. 6,68,095, Rs. 1,26,252 and Rs. 5,40,873.
The balance sheet for the year 1954 shows that the total hosiery sale was worth Rs. 2,37,232 6 0 whereas the total yarn sale was worth Rs. 14,82,705 5 0.
Similarly, for the year.
1955, the, hosiery sale was kW. 2 56,986 and the yarn :sale was Rs. 14,44,929.
strength of the employees engaged in the two respective sectors tells the same story.
The table prepared by the second respondent from the information supplied by the management shows that for the year 1955, spinning employees were 174, hosiery employees 56 and the common workmen 35.
For the year 1956, the figures were 217, 54 and 38; for 1957, the figures were 194, 65 and 38; and for 1958 the figures were 178, 60 and 32.
Mr. Mehta quarrels with some of these figure but does not dispute the broad conclusion which is drawn from the figures that the number of employees engaged in the spinning section is far more 204 than that employed in the hosiery section.
Thus, there can be no doubt that the spinning activity of the, appellant which may have begun as subsidiary to the hosiery activity has now grown in importance and has taken a place of pride in the industrial activity of the appellant considered as a whole; it can no longer be regarded as subsidiary to hosiery.
It is common ground that by the notification issued under the Cotton Textile (Control) Order, 1948, the appellant is called upon to supply to the Government the prescribed quantity of yarn produced by the spinning department.
It is unnecessary to refer to the details of the order or to the extent of the yarn required to be supplied by the appellant under it.
What is significant is the fact that by the application of the order issued in that behalf, the Government has treated the appellant as a producer who has a spinning plant and in that sense, the existence of the spinning activity of the appellant has been treated as an independent activity liable to be controlled by the notification issued under the Cotton Textile (Control) Order, 1948.
Then as to the argument that the spinning and the hosiery are functionally integrated, it is clear that hosiery can exist without spinning, provided the industry engaged in hosiery purchases yarn required for the purpose of hosiery.
That is one aspect of the matter.
But the more important aspect on which reliance has been placed against the appellant is that the appellant 's spinning department produces yarn of all counts some of which would admittedly not be useful for hosiery work.
When the appellant was asked whether the allegation made by respondents Nos. 3 and 4 in that behalf was true or not, the management of the app ellant hesitatingly denied the said allegation.
But an advertisement published in the local daily "Sandesh" was produced by respondents Nos.
3 205 and 4 and it clearly showed that yarn of all counts was offered by the appellant for sale in the general market.
Therefore, it would be idle to contend that the spinning work carried on in the spinning department is meant exclusively or solely for the hosiery department.
If the spinning department produces yarn which is not useful or necessary for, and which cannot be used by, the hosiery sections the only inference is that the spinning department is working on its own and is producing yarn to be sold in the market.
That being so, the argument of functional inter dependence or integrality cannot be treated as valid.
Besides, it is not disputed that when the knitting department was closed in 1948, the spinning department was not.
If the two departments are functionally inter dependent, the closure of the one without the closure of the other may need an explanation.
The explanation which has appealed to the first and the second respondents apparently is that though the spinning work carried on by the appellant may, to some extent, be useful for the hosiery work, the major part of its work is carried on independently with an eye on the market and so the closure of the hosiery cannot and did not affect the continuance of the spinning department.
There is yet another circumstance on which considerable reliance has been placed by the first and second respondents in rejecting the appellant 's contention that the two departments constitute one unit.
This circumstance refers to the conduct of the appellant itself in dealing with the employees engaged in spinning and in knitting departments.
It is admitted that the minimum wages paid to the employees in knitting differed from the minimum wages paid to the employees in spinning and so does the amount of dearness allowance paid to the respective employees differ.
It is difficult to understand how an employer can make a distinction ui 206 the payment of minimum wages between one class of employees and another if both the classes of employees are engaged in different departments Of the same establishment or concern.
If there is unity of employment and unity of purpose and design as suggested by Mr. Mehta, it is inconceivable that the employees engaged in two departments integrally connected with each other and constituting one unit would be paid different minimum wages.
What is true about the minimum wages and the dearness allowance is also true about the bonus.
It appears that even in years in which the appellant made profits and actually paid bonus to the work men employed in the spinning department, no bonus was paid to the employees engaged in the knitting department.
That again can be explained and justified only on the basis that the appellant treated the two departments as distinct and separate and so the employees in the one got bonus and not the employees in the other.
It was suggested by Mr. Metha that the genesis of the present dispute lies in the anxiety of the third respondent to take within its jurisdiction the employees engaged by the appellant in its spinning depart ment.
On the other hand, Mr. Barot for respondents Nos. 3 and 4 contends that the present trouble arose because the appellant began to deny to its employees in the spinning department the benefits of all relevant conditions of service which were applicable to the employees in the Textile Industry in Ahmedabad.
Whatever may be the background of the dispute and its genesis, it is clear beyond doubt that the way in which the appellant has treated its employees in spinning is distinguished from its employees in knitting leads very strongly to the inference that the, appellant treated the two departments not as one unit but as separate units each one functioning on its own and independently of the other.
It is in the light of these circumstances that 207 the first and the second respondents were not impressed by the relevant factors on which the appellant relied in support of its plea of the unity of the two activities and came to the conclusion that the two activities were separate and as such, as must be separately recognised under, section 11.
We do not see how the appellant can successfully challenge the correctness of this conclusion.
There is one more point which yet remains to be considered.
Mr. Metha argues that the impugned order recognising two different undertakings under section 11(1) is not justified by the provisions of the statute.
Section II provides that the Registrar may, after making such inquiry as he deems fit, recognise for the purposes of the Act (1) any concern in an industry to be an undertaking ; (2) any section of an undertaking to be an occupation.
The argument is that section II (1) does not authorise the splitting up of a concern into two undertakings.
A concern, says Mr. Metha, is the whole of the concern or establishment run by the appellant and as such it has to be recognised as one undertaking in so far as the order under appeal treats the appellant 's concern as two undertakings, it is contrary to section 11(1).
We are not impress,, (I by this argument.
The appellant is undoubtedly engaged in the hosiery industry and that part of its business cannot be recognised as Cotton Textile Industry because it is a concern engaged in spinning only which can be recognised under that category.
If that is so, industrial activity of the appellant in relation to hosiery industry must be recognised separately from the textile undertaking.
If one concern or company carries on several businesses or undertakes different types of industrial works, these businesses or works would amount to separate enterprises or undertakings and would have to be 208 recognised as such.
In fact, if the appellant itself has been treating the two kinds of work separately and has thus split up its whole business into two independent sections, it is not easy to understand why the Registrar cannot recognise the existence of two undertakings carried on by the appellant and treat the said undertakings as such.
We see no justification for the assumption made by Mr. Metha that section II (1) does not permit the recognition, of several undertakings carried on by the same company separately.
It all depends on whether the undertakings are separate, distinct and independent of each other or are functionally integral or inter dependent.
In the former case, the Registrar would be, justified in treating the several undertakings separately while in the latter case, he may recognise all of them as one undertaking.
There is one minor point to which reference may incidentally be made.
It appears that before the first respondent, it was urged by the appellant that the present applications made by respondents Nos. 3 and 4 were barred by res judicata.
The argument was that since the second respondent had on an earlier occassion considered the merits of the case and refused to grant the request made by the third respondent for recognising the two undertakings separately, the same question could not be re agitated again before the same authority.
In our opinion, there is no substance in this argument.
As we have already pointed out, when the second respondent passed his earlier order, an appeal was preferred against the said order by the fourth respondent before the first respondent.
That appeal was, however, dismissed on the ground that the fourth respondent was not party to the proceedings before the second respondent and, therefore, he could not prefer an appeal.
If the fourth respondent had no right to make an appeal because he was not a party.
to the said.
proceedings, it is difficult to see, how he can 209 be precluded from making the present application on the ground of res judicata.
At the highest, a plea of res judicata pay perhaps be raised against the third respondent but that would not be effective in view of the fact that in the present case, an application has been made by the fourth respondent as well.
That is why Mr. Mehta did not seriously press the point of res judicata before us.
In the result, fails the appeal and is dismissed with costs.
Appeal dismissed.

Output:
The appellant Company was incorporated in 1908 and its principal activity then was to manufacture hosiery.
In 1924 when the appellant shifted its factor to Ahmedabad it installed spinning machinery with a view to ensure suitable and even supply of yarn for its hosiery manufacture.
Originally, a notification had been issued on May 30, 1939, under the Bombay Industrial Dispute Act, 1938, whereby hosiery concerns were included in the definition of "Cotton Textile Industry",, but subsequently on,July 17, 1945, another notification was issued as a result of which the Hosiery manufacture was excluded from the Cotton Textile Industry and it was covered by a separate notification.
For the purposes of the Bombay Industrial Relations Act, 1946, the appellant concern was recognised as an undertaking of the hosiery industry by the Registrar under section II of that Act.
Subsequently as a result of certain proceedings taken by the Textile Lobour Association of Ahmedabad, the Registrar decided 197 to recognise the appellant concern as consisting of two undertakings, the hosiery section and the rest excluding the hosiery section and this decision was confirmed by the Industrial Court.
The appellant challenged the order of the Industrial Court on the grounds (1) that the spinning and the hosiery sections in its establishment were one concern because (a) there was unity of ownership, management, supervision, con trol and employment, (b) there was complete functional integration, and (c) the two sections were functioning under the same roof, and (2) that, in any case, section 11 of the Act did not authorise the splitting up of a concern into two undertakings.
The evidence showed that though in 1924 the spinning section had begun as a subsidiary to the hosiery section in order to serve as its feeder, later on the spinning section developed to such an extent that it became a spinning mill by itself and could no longer be regarded as a minor section attached to the hosiery works, that only 20% of the yarn manufactured by the spinning section was con sumed for hosiery purposes while the rest was sold in the market, that the spinning department produced yarn of all counts, some of which could not be used for hosiery work, that when the knitting department was closed in '1948, the spinning department was not.
It was also found that the amount paid to the employees in each of the two departments by way of minimum wages and dearness allowance was different.
Held, that the decision of the Registrar recognising the hosiery and spinning departments of the appellant concern as separate undertakings under s.11 of the Bombay Industrial Relations Act, 1946, was correct, Held, further, that the question whether the several undertakings carried on by the same company are separate or not depends on whether they arc distinct and independent of each other or are functionally integral or inter department and that the Registrar was within his powers under section II of the Act to come to a decision on this question on the basis of the circumstances disclosed on evidence.
Associated Cement Companies Ltd. vs Their Workmen, (1960) 1 S.C.R.703, Pratap Press vs Their Workmen, (1960) 1 L. L. J. 497 Pakshiraja Studios vs Its Workmen.
and Honorary Secretary, The Soath India Millowrers 'Asso ciation vs The Secretary Coimbatore District Textile Workers ' Union, Coimbotore (1962) Supp. 2, S.C.R. 926 relied on.