Input:
N: Criminal Appeal No. 234 of 1971.
From the Judgment and order dated the 26 3 71 of the Bombay High Court at Bombay in Criminal Appeal No. 1434 of 1970.
K. R. Chaudhury and K. Rajendra Chaudhury for the Appellant.
H. R. Khanna and M. N. Shroff for Respondent.
The Judgment of the Court was delivered by SARKARIA, J.
Veera Ibrahim, appellant was accused No. 2 in the complaint filed by Assistant Collector of Customs, Preventive Department, Bombay before the Chief Presidency Magistrate for his prosecution along with one Abdul Umrao Rauf, accused No. 1, in respect of offences under sections 135(a) and 135(b) of the and section S of the Imports and Exports (Control) Act 1947.
The trial Magistrate convicted both the accused on all the three charges and sentenced them to two years rigorous imprisonment on each count with a direction that the sentences would run concurrently.
Against that judgment, two separate appeals were filed by the convicts in the Bombay High Court which acquitted both the accused of the offences under section 5 of the Imports and Exports (Control) Act, 1947 and under section 135(b) of the , but maintained their conviction on the charge under section 135(a) of that Act reducing the sentence to one years rigorous imprisonment, The High Court, however, granted a certificate under Article 134(1) (c) of the Constitution, on the basis of which, this appeal has been filed.
The main question with reference to which the certificate was granted by the High Court, was: whether section 108 of the is ultra vires the provisions of cl.
(3) of Article 20 of the Constitution ? But Mr. Chaudhry, appearing for the appellant, does not press this question now before us.
The first contention canvassed by the Counsel is that on the facts and circumstances of the case, the appellant 's statement recorded under section 108 of the , on the foot of which the appellant has been convicted, was hit by clause (3) of Article 20 because at the time of making that statement, the appellant was "accused of any offence" under section 124 of the Bombay Police Act, and the statement was obtained under compulsion of law.
Stress has been placed on the fact that the appellant was, in fact, arrested by the police on a charge under section 124 of the Bombay Police Act and the goods were seized under a Panchnama, prepared by them in the course of investigation.
In this connection, reference has been made to 674 M. P. Sharma and Ors.
vs Satish Chandra, District Magistrate, Delhi and Ors.(1) On the other hand, Mr. H. R. Khanna, appearing for the respondent submits that the words "accused of any offence" occurring in article 20(3) take in only that person against whom a formal accusation of an offence has been levelled.
Two other conditions for the applicability of this Clause, according to the Counsel, are: (a) that the testimony in question had been obtained under compulsion, and (b) it relates to the offence of which he stands formally accused.
These conditions, it is maintained, were not fulfilled in the present case.
Clause (3) of Article 20 provides: "No person accused of any offence shall be compelled to be a witness against himself".
From an analysis of this clause, it is apparent that in order to claim the benefit of the guarantee against testimonial compulsion embodied in this clause, it must be shown, firstly, that the person who made the statement was "accused of any offence" secondly, that he made this statement under compulsion.
The phrase "accused of any offence" has been the subject of several decisions of this Court so that by now it is well settled that only a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in his prosecution, would fall within its ambit.
In R. C. Mehta vs State of West Bengal, this point came up for consideration in the context of a statement recorded by an officer of Customs in an enquiry under section 171 A of the Sea .
One of the contentions raised was, that a person against whom such an enquiry is made is a `person accused of an offence ', and on that account, he cannot be compelled to be a witness against himself and the statement obtained or evidence collected under the aforesaid provision by the officer of Customs is inadmissible.
This contention was repelled.
Shah J., speaking for the Court, made these apposite observations: "Under section 171 A of the Sea , a Customs officer has power in an enquiry in connection with the smuggling of goods to summon any person whose attendance he considers necessary, to give evidence or to produce a document or any other thing, and by cl.
(3) the person so summoned is bound to state the truth upon any subject respecting which he is examined or makes statements and to produce such documents and other things as may be required.
The expression "any person" includes a person who is suspected or believed to be concerned in the smuggling of goods.
But a person arrested by a Customs officer because he is found in possession of smuggled goods or on suspicion that he is concerned in smuggling is not when called upon by the Customs officer to make a statement or to produce a document or thing, a person accused of an 675 offence within the meaning of article 20(3) of the Constitution.
The steps taken by the Customs officer are for the purpose of holding an enquiry under the Sea and for adjudging confiscation of goods dutiable or prohibited and imposing penalties.
The Customs officer does not at that stage accuse the person suspected of infringing the provisions of the Sea with the commission of any offence.
His primary duty is to prevent smuggling and to recover duties of customs when collecting evidence in respect of smuggling against a person suspected of infringing the provisions of the Sea he is not accusing the person of any offence punishable at a trial before a magistrate".
After a survey of case law, the Court pointed out the circumstances, the existence of which is ordinarily necessary to clothe a person with the character of a "person accused of an offence": "Normally a person stands in the character of an accused when a First Information Report is lodged.
against him in respect of an offence before an officer competent to investigate it, or when a complaint is made relating to the commission of an offence before a Magistrate competent to try or send to another Magistrate for trial the offence.
Where a Customs officer arrests a person and informs that person of the grounds of his arrest (which he is bound to do under article 221) of the Constitution for the purpose of holding an enquiry into the infringement of the provisions of the Sea which he has reason to believe has taken place, there is no formal accusation of an offence.
In the case of an offence by infringement of the Sea and punishable at the trial before a Magistrate, there is an accusation when a complaint is lodged by an officer competent in that behalf before the Magistrate".
The above quoted observations are a complete answer to the contention of the appellant.
In the light of these principles, it is clear that when the statement of the appellant was recorded by the Customs officer under section 108, the appellant was not a person "accused of any offence" under the .
An accusation which would stamp him with the character of such a person was, levelled only when the complaint was filed against him, by the Assistant Collector of Customs complaining of the commission of offences under section 135(a) and section 135(b) of the .
True, that the appellant was arrested by the police on December 12, 1967 on suspicion of having committed an offence under section 124, of the Bombay Police Act and a Panchnama of the packages in the truck was also prepared.
But the factual ingredients of that offence are materially different from those of an offence under the .
This will be apparent from a bare reading of section 124 of the Bombay Police Act, which provides : "Whoever has in his possession or conveys in any manner, or offers for sale or pawn, anything which there is 676 reason to believe is stolen property or property fraudulently obtained shall, if he fails to account for such possession or to act to the satisfaction of the Magistrate, on conviction, be punished with imprisonment for a term (which may extend to one year but shall not, except for reasons to be recorded in writing, be less taken one month and shall also be liable to the fine which may extend to five hundred rupees).
Even in respect of that offence, the police did not register any case or enter any F.I.R. which normally furnishes a foundation for commencing a police investigation.
The police did not open the packages or prepare inventories of the goods packed therein.
Indeed, the police appear to have dropped further proceedings.
They did not take any steps for prosecuting the appellant even for an offence under the Bombay Police Act, 1951.
They informed the customs authorities, who opened the packages, inspected the goods and on finding them contraband goods, seized them under a Panchnama.
The Customs authorities called the appellant and his companion to the Customs House, took them into custody, and after due compliance with the requirements of law, the Inspector of Customs questioned the appellant and recorded his statement under section 108 of the .
Under the circumstances it was manifest that at the time when the Custom officer recorded the statement of the appellant, the latter was not formally "accused of any offence.
" The High Court was therefore right in holding that the statement recorded by the Inspector of Customs was not hit by Article 20(3) of the Constitution.
The next question to be considered is, whether this statement was hit by section 24 of the Evidence Act.
The contention is that this statement was obtained under compulsion of law inasmuch as he was required to state the truth under threat of prosecution for perjury.
For reasons that follow, we are unable to sustain this contention.
To attract the prohibition enacted in section 24, Evidence Act, these facts must be established: (i) that the statement in question is a confession; (ii) that such confession has been made by an accused person; (iii)that it has been made to a person in authority; (iv) that the confession has been obtained by reason of any inducement, threat or promise proceeding from a person in authority; (v) such inducement, threat or promise, must have reference to the charge against the accused person; (vi) the inducement, threat or promise must in the opinion of the Court be sufficient to give the accused person grounds, which would appear to him reasonable, for 677 supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
In the present case, facts (i), (iv) and (vi) have not been established.
Firstly, the statement in question is not a "confession ' within the contemplation of section 24.
It is now well settled that a statement in order to amount to a "confession" must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence.
An admission of an incriminating fact, howsoever grave, is not by itself a confession.
A statement which contains an exculpatory assertion of some fact, which if true, would negative the offence alleged, cannot amount to a confession (see Pakala Narayana vs R.; Plavinder Kaur vs State of Punjab; Om Prakash vs State.
A perusal of the statement exhibit I made by the appellant before the Inspector of Customs would show that it contained exculpatory matter.
Therein, the deponent claimed that he was not aware that the packages which were loaded in the truck were contraband goods, and alleged that the goods were not loaded under his instructions.
The deponent claimed to be an innocent traveller in the truck when he said: "I did not ask Mullaji (driver) what goods were being loaded in his lorry.
Mullaji was only my friend and I was not aware of any of his mala fide activities".
Moreover, the incriminating facts admitted in this statement, do not, even if taken cumulatively amount to admission of all the facts which constitute any offence.
To bring home an offence under section 135 of the , in addition to the facts admitted in exhibit I, it had to be established further that these goods were contraband goods.
For these reasons, it could be said beyond doubt, that the statement exhibit 1 was not a "confession" within the meaning of section 24, Evidence Act.
Secondly, it has not been shown that the Customs officer though a person in authority had offered any inducement or held out any threat or promise to the appellant.
Christopher Soares, the Inspector of (Customs (P. W. 4) testified that no threats, coercion or inducements were used and that the statement exhibit 1 was made by the appellant, voluntarily.
While it may be conceded that a person summoned by an officer of Customs to make a statement under section 108 of the , is under compulsion of law to state the truth, the compulsion there under, assuming it amounts to a threat, does not proceed "from a person in authority" within the contemplation of section 24, but emanates from law.
Thirdly, the mere fact that the Inspector of Customs had, before recording the statement, warned the deponent of the possibility of his 678 prosecution for perjury in case he did not make the statement truthfully, cannot be construed as a threat held out by the officer which could have reasonably caused the person making the statement to suppose that he would by making that statement, gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him for smuggling.
In view of what has been said above, we have no hesitation in holding that the statement exhibit 1, was not barred under section 24, Evidence Act.
The statement exhibit P 1 was clearly admissible under section 21, Evidence Act as an admission of incriminating facts.
Lastly, Mr. Chaudhry tried to contend that the incriminating facts admitted in exhibit 1 taken along with the other facts appearing in the evidence of prosecution witnesses, were insufficient to establish an offence under section 135, against the appellant because no notification under sub section
(2) of section 123, of the had been issued in respect of the import of the goods of the kind seized, and the aid of the statutory presumption under that section was not available to the prosecution.
We are unable to accept this contention.
While it is true that in the absence of the requisite notification, the statutory presumption under section 123 could not be invoked by the prosecution, the circumstances established unerringly raise an inference with regard to all the factual ingredients of an offence under section 135(b) read with section 135(ii) of the .
In exhibit 1 which was proved by P.W. 4, it is admitted that these packages which were later found to contain contraband goods by the Customs authorities, were surreptitiously loaded in the truck under cover of darkness at Reti Bunder (sea shore) from the side of sea side wall, in the presence of the appellant, and thereafter the first accused took the wheel, while the appellant sat by his side in the truck, and drove towards Sandhurst Station.
It is further admitted that some Bania paid Rs. 2,000/ to the appellant which was meant to be given to the driver of the truck.
Unfortunately, the truck skidded near the Dongri Police Station and came to a stop.
On hearing the impact of the accident, the police came out, took both the accused into the Police Station and seized the truck and the goods.
In short, the.
appellant had clearly admitted that these packages containing the contraband goods were imported surreptitiously from Reti Bunder under cover of darkness.
It was further established de hors the statement of the appellant, that these packages, on opening by the Customs officer, were found to contain contraband goods of foreign make.
They were brand new articles packed.
The circumstances of the arrest of the appellant while escaping 679 from the truck, the seizure of the truck and the goods, the contraband nature of the goods, the fact that at the time of the seizure, the goods, were in the charge of the appellant, the fact that no duty on these goods had been paid, the seizure of Rs. 2,000/ as cash from the appellant etc. were proved by evidence aliunde rendered by P. Ws. 1 and 2.
To some extent, the hostile witness, P.W. 5, also, supported the prosecution.
The circumstances established unmistakably and irresistibly pointed to the conclusion that the appellant was knowingly concerned in a fraudulent attempt at evasion, if not, fraudulent evasion, of duty chargeable on those contraband goods.
In the result, the appeal fails and is dismissed.
M.R. Appeal dismissed.

Output:
A truck was seized with its content of contraband goods for foreign make, on which no duty had been paid.
The appellant who was in charge of the goods, was arrested while escaping from the truck and Rs. 2000/ were seized from him.
His statement was recorded under section 108, .
The appellant and the driver of the truck.
were convicted by the Trial Court under Ss. 135 (a) and 135 (b) of the , and section 5 of the Imports & Exports (Control) Act, 1947.
The High Court upheld their conviction under section 135 (a) of the , and acquitted them of the other charges.
In appeal by leave granted under article 134(1) (c) of the Constitution, the appellant contended before this Court that his statement taken under section 108, , could not be used against him; firstly, as it was hit by article 20(3) of the Constitution on account of its having been taken while he was already an `accused ' under section 124, Bombay Police Act, and secondly.
it was barred under section 24, Evidence Act, the same being a confession obtained under compulsion of law.
It was also contended that in the absence of the requisite notification under section 123(2), , the statutory presumption under section 123 could not be invoked by the prosecution, and without the same, the facts of the case were insufficient to establish an offence against the appellant under section 135, .
Dismissing the appeal, the Court, ^ HELD: (1) To claim the benefit of the guarantee against testimonial compulsion embodied in clause (3) of article 20, it must be shown, firstly, that the person who made the statement was `accused of any offence ', secondly, that he made this statement under compulsion.
Only a person against whom a formal accusation relating to the commission of an offence has been levelled would fall within its ambit.
[674C D] R.C. Mehta vs State of West Bengal, [1969] 2 S.C.R. 461, applied.
(2) To attract the prohibition enacted in section 24 Evidence Act, these facts must be established.
(i) that the statement in question is a confession; (ii) that such confession has been made by an accused person; (iii)that it has been made to a person in authority; (iv) that the confession has been obtained by reason of any inducement threat or promise proceeding from a person in authority.
(v) Such inducement, threat or promise, must have reference to the charge against the accused person; (vi) The inducement, threat or promise must in the opinion of the Court be sufficient to give the accused person ground, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of temporal nature in reference to the proceedings against him.
[676F H, 677A] 673 (3) A statement in order to amount to a `confession ' must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence.
An admission of an incriminating fact, however grave, is not by itself a confession.
A statement which contains an exculpatory assertion of some fact, which if true, would negative the offence alleged, cannot amount to a `confession '.
[677A C] Pakala Narayana vs R. 66 I. A. 66 Palvinder kaur vs State of Punjab , Om Prakash vs State, A.I.R. 1960 S.C. 409, referred to.


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tion (Civil) No. 1695 of 1987 Etc.
(Under Article , ' 23 of the Consitution of India).
Govind Mukhotey, J.D. Jain and B.B. Sinha for the Petition ers.
Dr. Y.S. Chitale, Mahabir Singh, K.B. Rohtagi and Sha shank Shekhar for the Respondents.
The Judgment of the Court was delivered by OJHA, J.
The petitioners in these writ petitions are licenced dealers having factories and manufacturing units at Panipat in the State of Haryana and consume sheep hair for manufacturing woollen fabrics and blankets.
In order to carry on their trade they purchase sheep hair to get yarn manufactured out of it for being used in its turn for manu facturing woollen fabrics and blankets.
The only question urged in these writ petitions is as to whether sheep hair was an agricultural produce within the meaning of the said 295 term as defined under Section 2(a) of the Punjab Agricultur al Produce Markets Act, 1961 (hereinafter referred to as the Act) so as to attract the provisions of the said Act to it.
The term "agricultural produce" according to its definition contained under Section 2(a) of the Act means all produce, whether processed or not, of agriculture, horticulture, animal husbandry or forest as specified in the Schedule to the Act.
On its plain meaning, therefore, only such produce as is specified in the Schedule to the Act shall fall within the term "agricultural produce".
Section 38 of the Act confers power on the State Government, by notification, to add to the Schedule any other item of agricultural produce or amend or omit any item of such produce specified therein.
The relevant items in the Schedule on which reliance has been placed by learned counsel for the petitioners in sup port of the contention that sheep hair was not an agricul tural produce are items 41.
Wool (Oon), 75.
Goat hair and 76.
Camel hair.
It has been urged by learned counsel for the petitioners that even though Goat hair and Camel hair have been included in the Schedule, Sheep hair had not been so included and consequently sheep hair was not an agricultural produce within the meaning of the Act and the insistence of the authorities that the petitioners should obtain a licence and pay market fee with regard to their transaction in respect of sheephair was unjustified.
With regard to item No. 4 l namely Wool (Oon), it was urged firstly that wool is the manufactured item of sheep hair and not sheep hair itself and secondly the word 'wool ' according to its dictionary meaning is the soft undercoat of various animals including sheep.
Reference in this behalf has been made to the Dic tionary of Scientific and Technical Terms M.C. Graw Hill.
According to it wool is a textile fibre made from raw wool characterised by absorbency, resiliency and insulation.
It further states that wool is the soft undercoat of various animals such as sheep, angora, goat, camel, alpaca, llamma and vicuna.
Having heard learned counsel for the parties, we are not inclined to agree with the submission made by learned coun sel for the petitioners.
Before dealing with the matter further it would be useful to notice at this place that item No. 41 of the Schedule after the word 'wool ' uses the word '0on ' also within brackets which indicates as to what was really intended by the use of the word 'Wool '.
Indeed, in the Hindi version of the Act, item No. 41 of the Schedule uses the word '0on ' only and does not at all use the word 'wool '.
Now to the submissions made by learned counsel for the petitioners, the first submission made by him that the word 'wool ' contemplated manufactured item of 296 sheep hair and not sheep hair itself, it believed even by the dictionary meaning of the said word relied on by him.
Firstly, the raw material out of which a textile fibre is made is also described as raw wool.
Secondly, not only the textile fibre but also the soft undercoat of various animals including sheep has itself been described as wool.
It is, therefore, apparent that not only the textile fibre made out of raw wool but even the soft undercoat of the various animals including sheep, according to the dictionary afore said, would be wool.
Encyclopaedia Britannica, under the heading wool in vol.
23, states: "Animal fibres are usually spoken of as hair, with the exception of the coat of the sheep which is usually termed wool".
A perusal of what has been stated under the heading wool therein would indicate that wool has almost invariably been used in the context of sheep hair.
In Indian Aluminium Cables Ltd. vs Union of India, [1985] 3 SCC page 284 after referring to several earlier decisions of this Court it was held that in determining the meaning or connotation of words and expressions describing an article in a tariff schedule those words and expressions should be construed in the sense in which they are under stood in the trade by the dealer and the customer when goods are marketable.
The same rule of interpretation was reiter ated in Collector of Central Excise, Kanpur vs Krishna Carbon Paper Co., [1989] 1 SCC page 150.
It was held: "It is well settled, as mentioned before, that where no definition is provided in the statute itself, as in this case for ascertaining the correct meaning of a fiscal entry reference to a dictionary is not always safe.
The correct guide, it appears in such a case, is the context and the trade meaning XXXXX The trade meaning is one which is prevalent in that particular trade where the goods is known or traded.
If special type of goods is subject matter of a fiscal entry then that entry must be understood in the context of that particu lar trade, bearing in mind that particular word xxxxx It is a well settled principle of construc tion, as mentioned before, that where the word has a scientific or technical meaning and also an ordinary meaning according to common par lance, it is in the latter sense that in a taxing statute the word must be held to have been used, unless contrary intention is clear ly expressed by the legislature.
This princi 297 ple is well settled by a long line of deci sions of Canadian, American, Australian and Indian cases.
Pollock, J. pointed out in Grenfell vs I.R.C., 248 that if a statute contains language which is capable of being construed in a popular sense, such a statute is not to be construed accord ing to the strict or technical meaning of the language contained in it, but is to be con strud in its popular sense, meaning of course, by the words "popular sense" that which people conversant with the subject matter with which the statute is dealing would attribute to it.
The ordinary words in every day use are, therefore, to be construed according to their popular sense.
The same view was reiterated by Story, J. in 200 Chests of Tea (1824) 9 Whea ton US 435,438 where he observed that the legislature does not suppose our merchants to be naturalists, or geologists, or botanists.
" In our opinion, the aforesaid rule of interpretation would apply even to the interpretation of the items of the Schedule to the Act keeping in view the nature and purpose of the enactment.
Interpreting item No. 41 Wool(Oon) of the Schedule in this light there seems to be no mannner of doubt that the word 'wool ' has been used therein only in the sense in which the word '0on ' is understood in the trade by the dealer and the consumer in the popular sense namely that which people conversant with the word '0on ' would attribute to it.
If anyone goes to the market to purchase wool (0on) he would be offered only sheep hair and not goat hair or camel hair or for the matter of that the hair of any other animal.
Indeed, there is intrinsic evidence in the Schedule itself of the fact that in the English version the word 'Wool (0on) ' and in the Hindi version '0on ' only at item No. 41 has been used in the same popular sense namely that of sheep hair.
This intention is apparent from the circum stances that care has been taken to specifically include goat hair and camel hair at items 75 and 76 of the Schedule.
Had Wool (0on) been used at item No. 41 in the comprehensive sense as canvassed by the learned counsel for the petition ers it would have automatically included Goat hair and Camel hair also and the specific inclusion of Goat hair and Camel hair at items 75 and 76 would have been wholly unnec essary.
Consequently, their specific inclusion at items 75 and 76 is a clear indication of the awareness of the fact that the trade meaning of the word 'Wool (0on) ' which is prevalent in the popular sense would be sheep hair alone and as such unless goat hair and camel hair are included as specific items in the Schedule they will not be treated as agricultural produce.
The word 298 'Woo1 (0on) ' has obviously been used at item No. 41 of the Schedule in the aforesaid popular sense and not in the sense used in scientific and technical terminology which the traders and the consumers are not normally supposed to know.
In view of the foregoing discussion, we are clearly of the opinion that sheep hair falls under the item No. 41 of the Schedule namely "Wool (0on)" as contained in the English version and "0on" only as contained in the Hindi version of the Act.
Sheep hair is consequently an agricultural produce within the meaning of the Act so that the various provisions therein with regard to agricultural produce are applicable to sheep hair also.
In the result, we find no merit in these writ petitions.
They are accordingly dismissed but in the circumstances of the case there shall be no order as to costs.
G.N. Petitions dis missed.

Output:
These writ petitions were filed by licencesed dealers who manufacture woollen fabrics and blankets.
They purchase sheep hair and make them yarn for use in manufacturing the above items.
The challenge is against the insistence of the State Govt.
to treat sheep hair as agricultural produce under the Punjab Agricultural Produce Markets Act, 1961 and requiring the petitioners to obtain licence and pay market fee for transactions in sheep hair.
It has been contended by the petitioners that even though goat hair and camel hair are included in the sched ule, sheep hair is not included and hence sheep hair is not agricultural produce within the meaning of the Act.
As regards item No. 41, Wool (0on) appearing in the schedule, it was contended that wool is a manufactured item of sheep hair and not sheep hair itself and the word "wool" according to its dictionary meaning is the soft undercoat of various animals including sheep.
Dismissing the writ petitions, this Court, HELD: 1.1 Item No. 41 of the schedule after the word "wool" uses the word "0on" also within brackets which indi cates as to what was really intended by the us of the word "wool".
Indeed, in the Hindi version of the Act item No. 41 of the schedule uses the word ' '0on" only and does not at all use the word "wool".
The raw material out of which a textile fibre is made is also described as raw wool.
Not only the textile fibre but also the soft under coat of various animals including sheep has itself been described as wool.
Wool has almost invariably been used in the context of sheep hair.
[295G; 296A] 294 1.2 Interpreting item No. 41 Wool (0on) of the schedule in the light of the above, there seems to be no manner of doubt that the word "wool" has been used therein only in the sense in which the word "0on" is understood in the trade by the dealer and the consumer in the popular sense namely that which people conversant with the word '0on ' would attribute to it.
This intention is apparent from the circumstance that care has been taken to specifically include goat hair and camel hair at items 75 and 76 of the schedule.
Had wool (0on) been used at item No. 41 in the comprehensive sense, it would have automatically included goat hair and camel hair and the specific inclusion of Goat hair and Camel hair at item No. 75 and 76 would have been wholly unnecessary.
Thus the word 'Wool (0on) ' has obviously been used in the popular sense and not in the sense used in scientific and technical terminology which the traders and the consumers are not normally supposed to know.
[297D H; 298A] Indian Aluminium Cables Ltd. vs Union of India, ; and Collector of Central Excise, Kanpur vs Krishna Carbon Paper Co., ; , relied on.
Encyclopaedia Britannica Vol. 23, relied on.


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o. 305 of 1964.
Appeal by Special Leave from the order dated the 9th April, 1963 of the Labour Court, Coimbatore, in C.S.O. Appeal No. 1 of 1962.
M. C. Setalvad, and Naunit Lai, for the appellant.
M. K. Ramamurthi, R. K. Garg, D. P. Singh and section C. Agar wala, for the respondents.
The Judgment of the Court was delivered by Gajendragadkar, C.J.
The appellant, Salem Erode Electricity Distribution Co., Ltd., is a licensee under the , and its business consists in buying electrical energy in bulk from the State Electricity Board of Madras and selling it to consumers in Salem and Erode and certain rural districts in the State of Madras.
For the purpose of carrying on this business, the appellant has an industrial establishment at Salem.
In or about 1940, when the number of the appellant 's con sumers was about 3,000, and that of its workmen 'about 45, the appellant framed certain terms and conditions of its workmen 's employment.
Amongst these were included terms about leave and holidays.
Later, when the (No. 20 of 1946) (hereinafter called 'the Act ') came into force, the provisions as to leave and holidays which had been introduced by the appellant in the terms and conditions of the employment of its workmen, were embodied in the appellant 's Standing Orders which were certified under the relevant provisions of the Act in or about 1947.
The said terms read thus : "Standing Order 5(b) The number of holidays to be granted to the workmen and the days which shall be observed as holidays by the Establishment shall be regulated in accordance with the or other relevant law for time being in force and the custom or usage of the Establishment, viz., holidays under the and festival holidays peculiar to this locality which are being given.
5 0 0 Standing Order 10(a) : Leave will be given in accordance with the law and existing practice provided the leave facilities now available to the workers are not curtailed in any manner".
The proceedings which have, given rise to the present appeal by special leave between the appellant and the respondents, its employees, began with the application made by the appellant on the 6th October, 1960, before the Certifying Officer, Madras, for the amendment of the certified Standing Orders to which we have just referred.
By its application, the management of the appellant wanted the said Orders to read thus "Standing Order 5(b) : For all workmen who have joined service prior to . holidays under the , and festival holidays of one day per year which day may be chosen by the workmen shall be given.
For all workmen who have joined on and after holidays under the Madras Industrial Establishments (National and Festival holidays) Act, 1958 shall be given." "Standing Order 10(a) Leave will be given to all employees who are appointed on and after . iii accordance with the provisions of the Madras Shops and Establishment Act, 1947 or any statutory modification thereof (irrespective of whether this Act applies or not to any category of employee or employees).
Provided, however, that for all employees who have been confirmed prior to the above said date, viz the leave facilities now available are not curtailed in any manner".
It is relevant to mention the background of the present application.
The appellant believed that the urgent need for increased production and for increased supply of electrical energy could be met if the existing rules embodied in Standing Orders 5(b) and 10(a) were suitably modified; and so, the appellant wanted to make the change in the said two Standing Orders on the lines indicated by it in its application to the Certifying Officer.
It appears that these Rules were introduced by the appellant on the 1st October, 1960, and were embodied in the contracts of service of new entrants who joined the appellant 's employment as from that date.
In fact, they were agreed to by such new entrants.
501 In order to regularise the steps taken by the appellant by revising the relevant Rules in respect of the new entrants to its employment, the appellant made the present application.
The change proposed to be made by the appellant in the two Standing Orders in question was resisted by the respondents ' Union.
It was urged by the respondents that the proposed change was unfair and unreasonable, and it was also argued that it would introduce discrimination between one set of employees and another working under the same employer, and that would naturally cause industrial unrest and disharmony.
The Certifying Officer upheld the pleas raised by the respondents and he accordingly directed that the proposed amendments should be negatived.
The appellant then preferred an appeal against the said order before the appellate authority.
Both the parties urged similar contentions before the appellate authority and the said authority agreed with the view taken by the Certifying Officer and dismissed the appeal preferred by the appellant.
It is against this order that the appellant has come to this Court by special leave.
On behalf of the appellant, Mr. Setalvad has urged that the change which the appellant wants to make in the two relevant orders is, on the merits, fair and reasonable; and he adds that the appellant wanted to prove its bona fides by making the changed Standing Orders applicable to the future entrants and not extending them to its employees who were already in its employment and who are governed by the existing Standing Orders.
According to Mr. Setalvad, the Certifying Officer and the appellate authority have erred in law in not certifying the changed Standing Orders as proposed by the appellant.
In dealing with this point, it is necessary to examine the broad features of the Act and consider its main purpose and object.
The Act was passed in 1946 and its main object was to require the employers in industrial establishments to which the Act applied, to define formally the terms and conditions of employment in their respective establishments.
In imposing this obligation on the employers, the Act intended that the terms and conditions of industrial employment should be well defined and should be known to the employees before they accepted the employment.
As we will presently point out, one of the objects of the Act was to introduce uniformity of terms and conditions of employment in respect of workmen belonging to the same category and discharging the same or similar work under an industrial establishment.
Before the Act was passed, employees in many industrial establishments were governed by oral terms and conditions of service which CI/66 2 502 were not uniform and which had been entered into on an ad hoc basis.
The Act now requires that terms and conditions of employment in relation to matters specified in the Schedule must be included in the Standing Orders and they must be certified.
It would at once be clear that by the operation of the Act, all industrial establishments will have to frame terms and conditions of service in regard to all the matters specified in the Schedule, and that naturally would introduce an element of uniformity inasmuch as industrial employment in all establishments to which the Act applied would, after the Act was passed, be governed by terms and conditions of service in respect of matters which are common to all of them.
That, in brief, is the object which the Act intends to achieve.
Let us now see the scheme of the Act. "Standing Orders" are defined by section 2(g) as meaning rules relating to matters set out in the Schedule; these matters are 11 in number, and the last one of them refers to any other matter which may be prescribed "Prescribed" according to section 2(f) means prescribed by rules made by the appropriate Government under this Act; and so, Standing Orders mean rules made in relation to the matters enumerated in clauses 1 to 10 in the Schedule as well as any other matter which may in future be added by means of rules to be made by the appropriate Government.
This gives a general idea about the matters which are intended to be covered by the Standing Orders.
Section 3 of the Act requires the submission of draft Stand ing Orders by the employer within six months from the date on which the Act becomes applicable to an industrial establishment.
A statutory obligation has been imposed upon the employer to take necessary action as required by section 3(1).
Section 4 requires that the Standing Orders must deal with every matter set out in the Schedule which is applicable to the industrial establishment, and must be in conformity with the provisions of the Act.
Section 5 deals with the proceedings for certification of the standing orders by the Certifying Officer.
Section 6 provides for appeals against the orders passed by the Certifying Officer Section 7 prescribes the date on which the certified standing orders will come into operation.
Section 10(2) provides for the modification of the standing orders.
Section 13A provides for the machinery to deal with questions in relation to the application or interpretation of the standing orders certified under the Act; and section 15 confers powers on the appropriate Government to make rules to carry out the purposes of the Act.
5 0 3 When the Act was originally passed, the powers of the Certi fying Officer as well as those of the appellate authority were limited to consider the question as to whether the standing orders submitted for certification were in accordance with the Act or not.
By an amendment made in 1956, jurisdiction has been conferred on the Certifying Officer as well as the appellate authority to adjudicate upon the fairness or reasonableness of the provisions of the Standing Orders submitted for certification.
That means the jurisdiction of the appropriate authorities functioning under the Act has now been widened and they are required to consider whether the Standing Orders submitted to them for their approval are fair or reasonable.
Parties can make their contentions in respect of the fairness or reasonableness of the proposed Standing Orders, and the appropriate authorities will adjudicate upon the said contentions.
That is one change made in 1956.
The other change made in the original provisions of the Act which is relevant for our purpose is in regard to the provisions contained in section 10(2).
Under the original provision of section 10(2), it was only the employer who was authorised to make an application to the Certifying Officer to have the Standing Orders modified.
By the amendment made in 1956, even workmen are now entitled to apply for the modification of the Standing Orders.
The result of this amendment is that if workmen are dissatisfied with the operation of the existing Standing Orders, they can move for their modification by applying to the Certifying Officer in that behalf.
Before this amendment was made, the only course open to the workmen to adopt for securing any modification in the existing Standing Orders was to raise an industrial dispute and move the appropriate government to refer the said dispute to the adjudication of the appropriate Industrial Tribunal.
Both these amendments have been introduced by Act No. 36 of 1956.
Now, the question which we have to decide is : is it permis ible for an industrial establishment to have two sets of Standing Orders to govern the relevant terms and conditions of its employees ? Mr. Setalvad argues that if the change is intended to be made in the existing Standing Orders, it should be permissible and indeed legitimate for an employer to seek for the change on .he ground that the said change would be reasonable and fair,, provided the existing rights of employees already employed are ,lot affected by such change.
Prima facie, this argument appears to be attractive; but if we examine the scheme of the relevant Provisions of the Act in the light of the matters specified in the schedule in respect of which Standing Orders are required to be 504 made, it appears that two sets of Standing Orders cannot be made under the Act.
Let us first examine the matters specified in the Schedule.
They are specified under cls.
( 1 ) to ( 11 ).
The first is in regard to classification of workmen.
The second is in relation to the manner of intimating to workmen periods and hours of work, holidays, pay days and wage rates.
The third has reference to shift working; the fourth to attendance and late coming.
Clause (5) relates to conditions of, procedure in applying for, and the authority which may grant, leave and holidays.
Clause (6) deals with the requirement to enter premises by certain gates, and liability to search.
Clause (7) is concerned with the closing and reopening of sections of the industrial establishment, and temporary stoppages of work and the rights and liabilities of the employer and workmen arising therefrom.
Clause (8) deals with the termination of employment, and the notice thereof to be given by employer and workmen.
Clause (9) covers the subject of suspension or dismissal for misconduct, and acts or omissions which constitute misconduct.
Clause (10) relates to means of redress for workmen against unfair treatment or wrongful exactions by the employer or his agents or servants.
Clause (11) is the residuary clause which refers to any other matter which may be prescribed.
One has merely to examine these clauses one by one to be satisfied that there is no scope for having two separate Standing Orders in respect to any one of them.
Take the case of classification of workmen.
It is inconceivable that there can be two separate Standing Orders in respect of this matter.
What we have said about classification is equally true about each one of the other said clauses; and so, the conclusion appears to be irresistible that the object of the Act is to certify Standing Orders in respect of the matters covered by the Schedule; and having regard to these matters, Standing Orders so certified would be uniform and would apply to all workmen alike who are employed in any industrial establishment.
Prior to the enactment of the Act, industrial establishments used to employ workmen on different terms and conditions of service and they used to enter into separate agreements with employees on an ad hoc basis.
It was precisely with the object of avoiding this anomalous position that the Act has been passed, and an obligation has been imposed upon the industrial establishments to have their Standing Orders certified by the appropriate authorities.
Therefore, we do not think Mr. Setalvad is right in 505 contending that it is open to an industrial establishment to have two sets of Standing Orders certified in relation to leave and holidays provided that the modified Standing Orders apply to future entrants and the existing Standing Orders apply to entrants who are already in the employment of the establishment.
On principle, it seems expedient and desirable that matters specified in the Schedule to the Act should be covered by uniform Standing Orders applicable to all workmen employed in an industrial establishment.
It is not difficult to imagine how the application of two sets of Standing Orders in respect of the said matters is bound to lead to confusion in the working of the establishment and cause dissatisfaction amongst the employees.
If Mr. Setalvad is right in contending that the Standing Orders in relation to these matters can be changed from time to time, it may lead to the anomalous result that in course of 10 or 15 years there may come into existence 3 or 4 different sets of Standing Orders applicable to the employees in the same industrial establishment, the application of the Standing Orders depending upon the date of employment of the respective employees.
That, we think, is not intended by the provisions of the Act.
Once the Standing Orders are made, it is not unlikely that disputes may arise between the employer and the employees in regard to their application or their interpretation, and the Act has specifically made a provision for dealing with problems of this kind.
As we have already indicated, section 13A provides that if any question arises as to the application or interpretation of a Standing Order certified under the Act, an employer or a workman may refer the question to any one of the Labour Courts indicated by the section, and the said Labour Court shall, after giving the parties an opportunity of being heard, decide the question and such decision be final and binding on the parties.
The result, therefore, appears to be that in regard to the certification of the Standing Orders, the Act provides for a self contained Code.
The Certifying Officer is given the power to consider questions of fairness and reasonableness as well as the other questions indicated by section 4(a) and (b).
An appeal is provided against the decision of the Certifying Officer and in case a dispute arises as to the interpretation or the application of the Standing Order, a remedy is provided by section 13A.
Besides, as we have already pointed out, a right is given both to the employer and the workmen to move the appropriate authorities for modification of the existing Standing Orders.
That is why we do not think that Mr. Setalvad is right in contending that the Certifying 506 Officer as well as the appellate authority erred in law in refusing to certify the modified Standing Orders submitted by the appellant for certification.
It may be that even in regard to matters covered by certified Standing Orders, industrial disputes may arise between the.
employer and his employees, and a question may then fall to be considered whether such disputes can be referred to the Industrial Tribunal for its adjudication under section 10(1) of the Industrial Disputes Act.
In other words, where an industrial dispute arises in respect of such matters, it may become necessary to consider whether, notwithstanding the self contained provisions of the Act, it would not still be open to the appropriate Government to refer such a dispute for adjudication.
We wish to make it clear that our decision in the present appeal has no relation to that question.
In the present appeal, the only point which we are deciding is whether under the scheme of the Act, it is permissible to the em ployer to require the appropriate authorities under the Act to certify two different sets of Standing Orders in regard to any of the matters covered by the Schedule.
It now remains to consider the three decisions to which Mr. Setalvad has invited our attention.
In Rai Bahadur Diwan Badri Das vs The Industrial Tribunal, Punjab(1), this Court had to consider the question as to whether the Tribunal against whose award an appeal had been brought to this Court by the appellant Rai Bahadur Diwan Badri Das was in error in refusing to allow the appellant 's prayer that he should be permitted to introduce a new rule in respect of leave with wages applicable to the entrants in his employment after the 1st of July, 1956.
It appears that on the said date, the appellant made a rule that every workman employed on or before that date would be entitled to 30 days leave with wages after working for 11 months and workmen employed after that date would be entitled to earned leave in accordance with the provisions of section 79 of the Indian .
This rule led to an industrial dispute which was referred to the Industrial Tribunal, and the Tribunal held that all the workmen were entitled to 30 days earned leave as under the existing rule and that the rule made by the appellant on the 1st of July, 1956 cannot be enforced.
It was this award which was challenged by the appellant before this Court, and the challenge was based on the broad and general ground that the employer had full freedom of contract to make a rule for the employment of his employees and that the Industrial Tribunal is not entitled to (1) 507 interfere with his freedom of contract.
It appears that the change which the employer sought to make by the new rule did not involve any appreciable financial burden, and it was not the case of the appellant that the existing rule caused any hardship to him.
The appellant, however, wanted to urge before this Court the theoretical ground that in a matter of employment, an industrial employer is entitled to make his own conditions with his employees and that industrial adjudication should not interfere with his freedom of contract in that behalf.
Indeed, as the majority judgment shows, the appellant was a good employer and was treating his employees in a very liberal manner.
He, however, brought the dispute before this Court in order to assert the general principle which was raised for the decision of this Court.
That is the background of the majority decision in Rai Bahadur Diwan Badri Das 's(1).
Dealing with the broad point raised by the learned Solicitor General on behalf of the appellant in that case, this Court held that several decisions pronounced by industrial adjudication had now established the principle that the doctrine of absolute freedom of contract had to yield to the higher claims for social justice.
Even so, this Court took the precaution of making it clear that the general question about the employer 's right to manage his own affairs in the best way he chooses, cannot be answered in the abstract without reference to the facts and circumstances in regard to which the question is raised, and it was pointed out that in industrial matters of this kind, there are no absolutes and no formula can be evolved which would invariably give an answer to different problems which may be posed in different cases on different facts.
Having thus dealt with the general point raised by the learned Solicitor General in Rai Bahadur Diwan Badri Das 's(1) case, the majority decision considered the facts in that particular case and held that the Tribunal was not shown to have been in error when it held that in the matter of earned leave there should be uniformity of conditions of service governing all the employees in the service of the appellant.
It was in that connection that reference was made to the fact that in regard to all the other terms and conditions of service, there was uniformity in the appellant 's establishment itself; and so, it was thought that the Tribunal might have been justified in discouraging a departure from the said uniformity in respect of one item, viz., earned leave.
It would thus be clear that this decision does not lay down any general (1) 508 principle at all.
In fact, this decision emphatically brings out the point that in dealing with industrial disputes, industrial adjudication should always resist the temptation of laying down any broad, general or unqualified propositions.
Therefore, we do not think that the decision of this Court in the case of R. B. Diwan Badri Das(1) is of much assistance.
In that case, the Court was dealing with an award pronounced by an Industrial Tribunal in an industrial dispute; and the narrow question which the Court decided was that the Industrial Tribunal was not in error in not upholding the rule made by the employer on the 1st July, 1956.
In the present case, we are dealing with proceedings arising under the Act and that means that considerations which govern the present proceedings are not necessarily the same as those which would govern the decision of an industrial dispute brought before the Industrial Tribunal for its adjudication under the Industrial Disputes Act.
The next decision to which Mr. Setalvad has referred was pronounced by this Court in the case of Associated Cement Staff Union and Another vs Associated Cement Company and Others(1).
During the course of the hearing of this appeal, some arguments were urged before us on the question about the relation between terms and conditions of service governing working hours, leave, and the like, and the wages paid to the employees.
Mr. Ramamurti who appeared for the respondents conceded that the terms and conditions in regard to leave or working hours can be changed; but he contended that the increase in the working hours or the reduction of earned leave should not be permitted to be introduced without taking into account the question about the consequent increase in the wage structure itself; and it was with a view to combat this contention that Mr. Setalvad referred us to the decision in the Associated Cement Co.(1).
In that case, the question of holidays, working hours and wages were all referred to the Industrial Tribunal for its decision.
The matter which arose for the decision of this Court in the appeals which were brought to this Court in that case, was, inter alia, in regard to holidays.
The Tribunal had allowed 21 holidays, whereas this Court reduced the number to 16.
Dealing with the question about the normal working hours, this Court observed that "once a conclusion about the normal working hours is reached after considering the optimum working hours on a consideration of all the relevant factors, industrial adjudication cannot hesitate to give effect to its conclusion merely because the workmen would have been entitled (1) (2) 509 to more wages at overtime rates if the hours of work had been fixed at less".
Mr. Setalvad relies upon this observation.
But we think it would be unreasonable to read this observation in isolation, because in the very next sentence, this Court has added that it is true that in fixing the proper wage scale, the question of workload and the matter of working hours cannot be left wholly out of consideration, though it further observed that many other factors including the need of the workmen, the financial resources of the employer, the rates of wages prevailing in other industries in the region, have all to be considered in deciding the wage scale.
It appears that in that case, the Tribunal itself had held that 21 holidays erred on the side of excessive liberality, and yet it did not reduce that number.
That is why this Court reduced the number of holidays from 21 to 16.
This decision, in our opinion, does show that where industrial adjudication has to deal with an industrial dispute in relation to wage structure, working hours, and holidays, it must consider the problem comprehen sively and in prescribing the working hours, and making provision for holidays and leave with or without pay, amongst other relevant factors, the wages paid to the 'employees have no doubt to be taken into account.
But these considerations do not arise in the present proceedings, because what the appropriate authorities under the Act had to consider was whether two sets of Standing Orders should be permitted under the same establishment or not.
The last case to which reference must be made is Guest, Keen, William Private Ltd. vs P. J. Sterling and Others(1).
In that case, the Standing Order had been certified under the Act prior to its amendment.
The relevant Standing Order had relation to the age of retirement of the employees under the establishment in question.
When the Standing Order was certified, its fairness and reasonableness could not have been examined by the Certifying Authority.
After it was certified, the employer sought to give effect to the age of retirement in regard to employees who were already in its employment; and that gave rise to an industrial dispute.
The employees who were already in the employment of the employer, contended that prior to the certification of the Standing Order, there was no, age of retirement in the concern and they urged that the certified Standing Order could not affect their right to continue in the employment so long as they were fit to discharge their duties.
It was in the contending this dispute that the question arose as to whether the certified Standing Order applied to the previously existing employees.
The Labour Appel (1) ; 510 late Tribunal against whose decision the appeal was brought to this Court by the appellant Guest, Keen, Williams Private Ltd., had held that the certified Standing Order could not apply to the ,employees who were already in the employment of the appellant.
This Court affirmed the view expressed by the Labour Appellate Tribunal that the certified Standing Order could not affect the rights of the previous employees; nevertheless, it was held that the question of prescribing an age of retirement for them could be considered in the proceedings before the Court and under the special circumstances to which reference has been made in the judgment, it was thought that the age of superannuation for prior employees could be reasonably and fairly fixed at 60 years.
This decision again is not of any assistance, because the matter came to this Court from an industrial dispute which was the subject,matter of industrial adjudication before the Industrial Tribunal and the Labour Appellate Tribunal; and all that this Court did was to fix an age of superannuation or workmen who had been employed prior to the date of the certification of the relevant Standing Order, at 60, and that course was adopted under the special and unusual circumstances expressly stated in the course of the judgment.
As we have already pointed out, the question as to whether two sets of Standing Orders can be certified under the provisions of the Act, did not fall to be considered in that case.
Therefore, we are satisfied that the Certifying Officer as well as the appellate authority committed no error of law in refusing to certify the modified Standing Orders submitted by the appellant in the present proceedings.
The result is, the appeal fails and is dismissed with costs.
Appeal dismissed.

Output:
The appellant company, which carried on the business of buying bulk electrical energy and distributing it to consumers, made an application under the , to the Certifying Officer, Madras, for an amendment of two of its certified Standing Orders relating to holidays and leave.
It was claimed by the appellant that the urgent need for increased production and for increased supply of electrical energy could be met if the existing rules embodied in the two standing orders were suitably amended; the amendments pro posed sought to introduce different rules relating to holidays and leave for employees who were appointed before a specified date and those who joined service after that date.
The proposed amendments were resisted by the respondents ' union on the ground, inter alia, that they would introduce discrimination between one se of employees and another resulting in industrial unrest and disharmony.
The Certifying Officer upheld the respondents I plea and nega tived the amendments.
An appeal to the appellate authority against this decision was dismissed.
it was contended on behalf of the appellant that the proposed amendments were fair and reasonable and that the Certifying Officer and, the appellate authority had erred in law in not certifying the Standing Orders as proposed to be amended.
HELD : (i) The Certifying Officer and the appellate authority committed no error of law in refusing to certify the modified Standing Orders.
[510 E] The Act provides a self contained code and the Certifying Officer is given the power to consider questions of fairness and reasonableness as well as other questions indicated by section 4(a) and (b).
An appeal is provided against the decision of the Certifying Officer and in case a dispute arises as to the interpretation or the application of the Standing Order, a remedy is provided In section 13A.
A Tight is given both to the employer and the workman to move the appropriate authorities for modification of the existing Standing Orders.
[505 G H] (ii) It is clear from the provisions of the Act requiring industrial establishments to have their Standing Orders certified that matters specified in the Schedule to the Act should be covered by uniform Standing Orders applicable to all workmen employed in an industrial establishment.
[505 B] 499 Rai Bahadur Diwan Badri Das V. The Industrial Tribunal, Punjab;[1963] 3 S.C.R. 930; Associated Cement Staff Union vs Associated Cement Co.,& Ors. ; Guest Keen Williams Private Ltd. vs F. I. Sterling and others: ; ; referred to.


Input:
Civil Appeal Nos.
973 74 of 1985.
From the Judgment and order dated 15.7.1983 of the Allahabad High Court in Writ Petition Nos.
3532 of 1979 & 357 of 1981.
Dr. L.M. Singhvi, K.R. Nagaraja, R.S. Hegde and C. Mukhopadhyay for the Appellants.
A.D. Singh, Mrs. section Dikshit, A.K. Gupta, Raju Ramachandaran and B.S. Chauhan for the Respondents.
Subhash Chandra, Respondent No. 34 in person.
The Judgment of the Court was delivered by DUTT, J.
These two appeals by special leave involve the interpretation of the Uttar Pradesh Non Technical (Class II) Services (Reservation of Vacancies for Demobilised officers) Rules, 1973, hereinafter referred to as 'the 1973 Rules ', and the Uttar Pradesh Non Technical (Class II/Group 'B ') Services (Appointment of Demobilised officers) Rules, 1980, hereinafter referred to as 'the 1980 Rules ', relating to the seniority of the appellants vis a vis the private respondents.
577 The appellants have all been appointed in the Provincial Civil Service of the State of Uttar Pradesh as direct recruits on the basis of competitive examinations held by the Uttar Pradesh Public Service Commission.
The appointments of the appellants were made under the U.P. Civil Service (Executive Branch) Rules, 1941 framed under section 241(1)(b) of the Government of India Act, 1935, hereinafter referred to as 'the Service Rules '.
The respondents were recruited under the 1973 Rules and/or the 1980 Rules.
The respondents were either Emergency Commissioned officers or the Short Service Commissioned officers of the armed forces of the Union of India and were commissioned on or before November 1, 1962 during the Indo Chinese war.
They were demobilised from armed forces in or about 1968.
These respondents, therefore, rendered services to the country during the operation of the emergency when the nation 's security was in peril due to external aggression.
In order to rehabilitate such persons and to ensure them that in civil life, after the cessation of emergency, they were not to suffer for rendering services to the nation and with a view to putting the respondents at par with other persons, the 1973 Rules were framed by the Governor of U.P. in exercise of his powers under the proviso to Article 309 of the Constitution of India.
Rule 1(3) of the 1973 Rules provide that they shall remain in force for a period of five years from the date of their commencement.
Rule 3, inter alia, provides for the reservation of ten per cent of the permanent vacancies in all Non Technical (Class II) Services to be filled substantively by direct recruitment through competitive examination in any year.
Rule 6 relating to seniority and pay, which is important for the purpose of these appeals, is extracted below: "R.6.
Seniority and pay (1) Seniority and pay of candidates appointed against the vacancies reserved under sub rule (1) of rule 3, shall be determined on the assumption that they entered the service concerned at their second opportunity, of competing for recruitment, and they shall be assigned the same year of allotment as successful candidates of the relevant competitive examination: Provided that any such candidate who had two opportunities before the date of his joining the training 578 prior to his commission whether he actually availed any A such opportunity or not, shall be assigned the same year of allotment as successful candidates of the first competitive examination held after the said date.
Explanation The year of a candidate 's second opportunity will be determined by the date of his birth in relation to the prescribed minimum age for competing for recruitment to the service.
(2) Seniority inter se of candidates who are appointed against vacancies reserved under sub rule (1) of rule 3 and allotted to a particular year shall be determined according to the merit list prepared by the Ayog on the basis of the results of their performance at the examination.
(3) All candidates appointed against vacancies reserved under sub rule (1) of rule 3 and allotted to any particular year shall rank below the candidates who were successful at the competitive examination held for recruitment to the service in that year.
(4) The pay of candidates appointed against vacancies referred to in sub rule (3) of rule 3 shall also be determined in the same manner as indicated in sub rule (1) of this rule but their seniority shall be determined in accordance with the foregoing sub rules only if and at the point of time when they are appointed substantively against permanent vacancies.
" For the purpose of seniority and pay, rule 6 takes into account the period of war service rendered by a candidate who, after his demobilisation from such service, successfully competes in the relevant examination which is in the present case, the Provincial Civil Service Examination.
Under Rule 6, when such a candidate is recruited after his successfully competing in the relevant examination, it will be assumed that he had entered service with retrospective effect from the year in which he had the second opportunity of taking the relevant examination for his recruitment, which he could not take on account of his having joined the service of the armed forces of the Union of India.
So far as the actual period rendered by the respondents in the 579 armed forces during the emergency is concerned, there is no dispute that such period shall be taken into consideration for the purpose of computing the seniority and pay.
The grievance of the appellants is that although there were long gaps between the dates of demobilisation and the dates of recruitment of the respondents, the State of Uttar Pradesh had, in computing the seniority of the respondents, taken into consideration not only the period during which the respondents were in the services of the armed forces, but also such long gaps.
It is pointed out by the appellants that in the cases of one or two respondents, the gaps were even of about 11 years and these long gaps had been taken into account in computing their seniority.
As a result of such computation, the respondents after their appointments were placed above the appellants, although the appellants were recruited to the Provincial Civil Service under the Service Rules long before the respondents were recruited.
If such gaps are excluded from consideration, the appellants will be seniors to the respondents.
It is also alleged by the appellants that several of the respondents, after coming back from the army, joined various services, both Government and private services, and had spent 3 to 10 years or more in those services before they were recruited under the 1973 Rules or 1980 Rules.
In 1976, a seniority list was prepared showing the respondents seniors to the appellants on the basis of the period of their service in the armed forces and the gaps between their discharge and recruitment.
In 1980 also, a seniority list was prepared in like manner showing the appellants as juniors to the respondents.
Being aggrieved by the 1976 seniority list, the appellants moved two writ petitions under Article 226 of the Constitution before the Allahabad High Court, inter alia, challenging the validity of the 1973 Rules and also 1980 Rules.
The High Court overruled the contention of the appellants that the 1973 Rules and 1980 Rules were invalid being violative of Article 14 of the Constitution of India and held that both these Rules were legal and valid.
It, however, took the view that under rule 6 of the 1973 Rules or rule 5 of 1980 Rules, which are verbatim the same, the period during which the respondents had no employment or were employed elsewhere till recruitment in the Provincial Civil Service after competing in the relevant examination, will be taken into account along with the period during which they were in the services of the armed forces for the purpose of computing their seniority in the Provincial Civil Service.
Accordingly, the High Court upheld the vali 580 dity of the impugned seniority list.
Hence this appeal.
It is urged by Dr. Singhvi, learned Counsel appearing on behalf of the appellants, that the interpretation given by the High Court of rule 6 of the 1973 Rules relating to seniority and pay is in excess of the relief intended to be granted by that rule.
It is submitted that rule 6 was framed for the purpose of taking into consideration the period of service in the armed forces in computing the seniority of a candidate appointed in the Provincial Civil Service after competing in the relevant examination, so that he does not suffer because of joining the armed forces.
Rule 6 does not provide for taking into consideration the gap between the date of demobilisation of a candidate and the date on which he is appointed in the Provincial Civil Service after competing in the relevant examination.
If such gaps are also taken into consideration, it would be doing injustice to the appellants who have been appointed long before the respondents.
Accordingly, Dr. Singhvi submits that when a candidate who was in the armed forces of the Union joined the Provincial Civil Service after his discharge from the armed forces, it would be assumed that he had entered the Provincial Civil Service at the second opportunity of competing for the recruitment, but no other period including that between the discharge and recruitment will be taken into account for the purpose of computing the seniority of such a candidate.
on the other hand, it is submitted by Mr. Anil Dev Singh and Mr. Gupta, learned Counsel for the respondents, and Mr. Subhash Chandra, respondent No. 34, appearing in person, that rule 6 does not prohibit, either expressly or by necessary implication, the taking into account of the period between demobilisation and recruitment in the Provincial Civil Service.
It is submitted that not only the length of the war service but also such gaps should be considered for the purpose of computation of seniority.
They submit that as only ten per cent of the vacancies were reserved for war service candidates, it was difficult for such candidates to get a chance within a reasonable time after their discharge from war service and it would be quite consistent with rules of natural justice to take into account the interregnum between the date of discharge and the date of recruitment.
Rule 6 only provides that after the discharge of a candidate from the armed forces and his subsequent appointment in civil service on the basis of competitive examination, it will be assumed that he had joined the service at the second opportunity of competing for the recruitment.
The second opportunity has been explained in the Expla 581 nation to rule 6.
It provides that the year of a candidate 's second opportunity will be determined by the date of his birth in relation to the prescribed minimum age for competing for recruitment to the service.
For example, if the minimum age for taking the competitive examination for recruitment is 21 years, the first opportunity of a candidate will be in the year he attains that age and the second opportunity will be in the next year, that is, at the age of 22 years.
Under rule 6, the recruitment of a war service candidate will be assumed to have been made in the year in which he had the second opportunity of competing for such recruitment.
In other words, the seniority of such a candidate will be computed on the basis that he had joined the civil service in the year of his second opportunity of competing for the recruitment.
It is true that rule 6 does not provide for the period between demobilisation and recruitment of a war service candidate in the civil service.
Nor does it forbid consideration of such period.
It cannot, however, be deemed that after the discharge from war service, there will be some lapse of time for the recruitment of a candidate in the Provincial Civil Service.
Immediately after discharge, one cannot get himself recruited in the Provincial Civil Service.
There is a question of competing in the examination.
Rule 6 does not provide for any gap to be taken into consideration, yet it is apparent that some reasonable period has to be allowed to a candidate so as to enable him to avail himself of the opportunity of appearing at the competitive examination for his recruitment in the Provincial Civil Service.
It cannot be gainsaid that to compete in the examination, a candidate has to make preparation for that.
Competitive examinations are generally difficult and, in our opinion, at least two years ' time should be allowed to a candidate, after his discharge, for his preparation for the competitive examination and that will be his first opportunity.
The second opportunity will arise in the next year, that is, in the third year of his discharge from the armed forces.
In other words, he should be allowed three years for competing in the relevant examination for recruitment in the civil service.
Even after he becomes successful, he is not recruited immediately.
There is the question of availability of vacancies and posting.
It is common knowledge that some time is taken for posting.
On a proper construction of rule 6, the period spent by a candidate for competing in the examination which, in our opinion, will not be more than three years, and the period of time taken for his recruitment or posting will also be taken into consideration for the purpose of computing the 582 seniority of a war service candidate.
Thus, if a candidate is discharged in the year 1968, he should be given three years ' time to avail himself of the opportunity of competing in the examination.
Suppose, he is successful in the examination held in 1971 and posted in 1973.
In view of rule 6, he would be deemed to have entered service at the second opportunity of competing for recruitment and the entire period from the date of assumed entry in the service up to his recruitment in 1973 shall be taken into account for the purpose of computing seniority and pay.
If, however, a candidate does not avail himself of the opportunity within three years of his discharge from war service or takes the examination but becomes unsuccessful, the period between his discharge and subsequent recruitment will not be taken into account for the purpose of computing the seniority.
Rule 6 should be given a reasonable interpretation.
We do not find any reason to interpret rule 6 in a way which will be doing injustice to the appellants who have been recruited under the Service rules after competing successfully in the examination.
We agree with the High Court that the 1973 Rules as also the 1980 Rules are quite legal and valid.
We are, however, of the view that under rule 6 of the 1973 Rules or rule 5 of the 1980 Rules only a reasonable period, namely, the period of three years, required for taking the examination and the time taken for recruitment or posting, as discussed above, along with the period of war service, but no other period, will be taken into consideration for the purpose of computing the seniority and pay.
The impugned seniority list prepared in 1976 and also that prepared subsequently in the year 1980 cannot be sustained, as they have been prepared by taking into consideration the entire period between the discharge and the recruitment without any reservation for computing the seniority.
For the reasons aforesaid, we set aside the judgment of the High Court relating to the interpretation of rule 6 of the 1973 Rules.
The impugned seniority lists of 1976 and 1980 are also quashed.
The State of Uttar Pradesh is directed to prepare the seniority list in the light of the observations made hereinabove within a period of six months from date.
The appeals are allowed to the extent indicated above.
There will, however, be no order as to costs in either of these appeals.
G.N. Appeals allowed.

Output:
The appellants have been appointed in the U.P. Civil Service as direct recruits on the basis of competitive examination held by the U.P. Service Commission.
They are governed by the U.P. Civil Service (Executive Branch) Rules, 1941.
The respondents were recruited under the U.P. Non Technical (Class II) Services (Reservation of Vacancies for Demobilised officers) Rules, 1973 and/or U.P.
Non Technical (Class II/Group 'B ') Services (Appointment of Demobilised officers) Rules, 1980.
They were either Emergency Commissioned officers or Short Service Commissioned Officers of the armed forces.
They were demobilised from the armed forces in or about 1968.
In order to rehabilitate such persons who rendered services to the country during the operation of the emergency when the nation 's security was in peril due to aggression, the 1973 Rules were framed under the proviso to article 309 of the Constitution of India.
In 1976, a seniority list was prepared showing the respondents as seniors to the appellants on the basis of their service in the armed forces and the gaps between their discharge and recruitment in civil service.
Similar list was prepared in 1980 as well.
Aggrieved by this, the appellants moved two writ petitions before the High Court challenging the validity of the 1973 Rules as also the 1980 Rules.
The High Court held that these Rules were legal and valid and upheld the validity of the impugned seniority list.
These two appeals by special leave are against the High Court judgment.
On behalf of the appellants, it was contended that the High 575 Court 's interpretation of Rule 6 of the 1973 Rules relating to seniority and pay was in excess of the relief intended to be granted by the rule.
It was also urged that when a candidate who was in the armed forces joined civil service, the assumption should be that he had entered the civil service at the second opportunity of competing for the recruitment, but no other period including that between the discharge and recruitment would be taken into account for the purpose of computing his seniority.
The contention of the Respondents was that since only ten per cent of the vacancies were reserved for war service candidates, it was difficult for them to get a chance within a reasonable time after their discharge from war service and it would be quite consistent with rules of natural justice to take into account the interregnum between the date of discharge and the date of recruitment in civil service.
Allowing the appeals, this Court, ^ HELD: 1.1.
The High Court was right in holding that the 1973 Rules as also the 1980 Rules are quite legal and valid.
However, under Rule 6 of the 1973 Rules or Rule 5 of the 1980 Rules, only a reasonable period of three years for taking the examination and the time taken for recruitment or posting would be taken into consideration for the purpose of computing seniority and pay.
[582D E] 1.2.
Under Rule 6 of the 1973 Rules, the recruitment of a war service candidate will be assumed to have been made in the year in which he had the second opportunity of competing for such recruitment, the first being on attaining the minimum age to compete.
It does not provide for the period between demobilisation and recruitment of a war service candidate in the civil service.
Nor does it forbid consideration of such period.
It cannot, however, he denied that after the discharge from war service, there will be some lapse of time for the recruitment of a candidate in the Provincial Civil Service.
There is a question of competing in the examination.
Though Rule 6 does not provide for any gap to be taken into consideration, it is apparent that some reasonable period has to be allowed to a candidate to enable him to avail himself of the opportunity of appearing at the competitive examination for recruitment in the Provincial Civil Service.
Competitive examinations are generally difficult and at least two years ' time should be allowed to a candidate, after his discharge, for his preparation for the competitive examination and that will be his first opportunity.
The second opportunity will arise in the next year, that is, in the third year 576 of his discharge from the armed forces.
In other words, he should be allowed three years for competing in the relevant examination for recruitment in the civil service.
Apart from the three years, the period of time taken for recruitment or posting will also be taken into consideration for the purpose of computing the seniority of a war service candidate.
[580H; 581C H] 1.3.
If, however, a candidate does not avail himself of the opportunity within three years of his discharge from war service or takes the examination but becomes unsuccessful, the period between his discharge and subsequent recruitment will not be taken into account for the purpose of computing the seniority.
[582C] [This Court set aside the judgment of the High Court relating to the interpretation of Rule 6 of the 1973 Rules, quashed the seniority lists of 1976 and 1980, and directed the State of U.P. to prepare the seniority list within six months in the light of this judgment.] [582F G]