Input:
Appeals Nos. 292 and 312 of 1950.
Appeals from the Judgment and Order of the High Court of Judicature at Hyderabad (Ansari, Qamar Hasan and Manohar Pershad JJ.) in Cases Nos. 180 181 of 1954 F. Ved Vyas, (section K. Kapur and Ganpat Rai, with him) for the appellant.
M. C. Setalvad, Attorney General for India (Porus A. Mehta, with him) for the respondent.
April 1.
The Judgment of the Court was delivered by BHAGWATI J.
These are two appeals from the judgment and decision of the High Court of Judicature at Hyderabad answering certain questions referred at the instance of the appellants by the Commissioner of Excess Profits Tax, Hyderabad, and adjudging the liability of the appellants for excess profits tax in regard to the amounts recieved by them as remuneration from the Dewan Bahadur Ramgopal Mills Com pany Ltd. as its Agents.
The Mills Company was registered on the 14th February, 1920, at Hyderabad in the then territories of His Exalted Highness the Nizam.
The appellants were registered as a private limited company at Bombay on 395 agreement was entered into between the Mills Company.
and the appellants appointing the appellants its Agents for a period of 30 years on certain terms and conditions therein recorded.
The appellants throughout worked only as the Agents of the Mills Company and for the Fasli years 1351 and 1352 they received their remuneration under the terms of the Agency agreement.
A notice was issued under section 13 of the Hyderabad Excess Profits Tax Regulation by the Excess Profits Tax Officer calling upon the appellants to pay the, amount of tax appertaining to these chargeable account , ing periods.
The appellants submitted their accounts and contended that the remuneration received by them from the Mills Company was not taxable on the ground that it is was not income, profits or gains from business and was outside the pale of the Excess Profits Tax Regulation.
This contention of the appellants was negatived and on the 24th April, 1944, the Excess Profits Tax Officer made an order assessing the income of the appellants for the accounting periods 1351 and 1352 Fasli at Rs. 8,957 and Rs. 83,768 respectively and assessed the tax accordingly.
An appeal was taken by the appellants to the Deputy Commissioner of Excess Profits Tax who disallowed the same.
An application made by the appellants under section 48(2) for statement of the case to the High Court was rejected by the Commissioner and the appellants filed a petition to the High Court under section 48(3) to compel the Commissioner to state the case to the High Court.
An order was made by the High,Court on this petition directing the Commissioner to state the case and the statement of the case was submitted by the Commis sioner on the 26th February, 1946.
Four questions were referred by the Commissioner to the High Courts as under: (1) Whether the Petitioner Company is a partnership firm or a registered firm ? (2) Whether under the terms of the agreement the petitioner is an employee of the Mills Company or is carrying on business ? 396 (3)Whether the remuneration received from the MILLs is on account of service or is the remuneration for business ? (4)Whether the principle of personal qualification referred to in section 2, clause (4), of the Excess Profits Regulation is applicable to the Petitioner Company ? These questions were of considerable importance and were referred for decision to the Full Bench of the High Court.
The Full Bench of the High Court delivered their judgment the majority deciding the questions (2) and (3) which were the only questions considered determinative of the reference against the appellants.
The appellants appealed to the Judicial Committee.
But before the Judicial Committee heard the appeals there was a merger of the territories of Hyderabad with India.
The appeals finally came for hearing before the Supreme Court Bench at Hyderabad on the 12th December, 1950, when an order was passed transferring the appeals to this Court at Delhi.
These appeals have now come for hearing and final disposal before us.
The questions (1) and (4) which were referred by the Commissioner to the High Court at Hyderabad have not been seriously pressed before us.
Whether the appellants are a partnership firm or a registered company the principle of exclusion of the income from the category of business income by reason of its depending wholly or mainly on the personal qualifications of the assessee would not apply because the income could not be said to be income from profession and neither a partnership firm nor a registered company as such could be said to be possessed of any personal qualifications in the matter of the acquisition of that income.
The principal questions which were therefore argued before the High Court at Hyderabad and before us were the questions (2) and (3) which involved the determination of the position of the appellants whether they were servants or agents of the Mills Company and the determination of the character of their remuneration whether it was wages or salary or income, profits or gains from business.
397 The appellants were registered as a private limited company having their registered office in Bombay and the objects for which they were incorporated were the following: (1)To act as agents for Governments or Authorities or for any bankers, manufacturers, merchants, shippers, Joint Stock Companies and others and carry on all kinds of agency business.
(2)To carry on in India and elsewhere the trade or business of merchants, importers exporters in all ', their branches etc.
etc. .
Under Article 115 of the Articles of Association of the Mills Company the appellants and their assigns were ' appointed the agents of the Company upon the terms, provisions and conditions set out in the Agreement referred to in clause 6 of the Company 's Memorandum of Association.
Article 116 provided that the general management of the business of the Company subject to the control and supervision of the Directors, was to be in the hands of the Agents of the Company, who were to have the power and authority on behalf of the Company, subject to such control and supervision, to enter into all contracts and to do all other things usual, necessary and desirable in the management of the, affairs of the Company or in carrying out its objects and were to have power to appoint and employ in, or.
for the purposes of the transaction and managment of the affairs and business of the Company, or otherwise for the purposes thereof, and from time to time to remove or suspend such managers, agents, clerks and other employees as they thought proper with such powers and duties and upon such terms as to duration of employment, remuneration or otherwise as they thought fit and were also to have powers to exercise all rights and liberties reserved and granted to them by the said agreement referred to in clause 6 of the Company 's Memorandum of Association including the rights and liberties contained in clause 4 of the agreement.
Article 1 18 authorised the agents to sub delegate all or any of the powers, authorities and discretions for the time being vested in them, and in particular 398 from time to time to provide by the appointment of an attorney or attorneys, for the management and transaction of the affairs of the Company in any specified locality, in such manner as they thought fit.
The Agency agreement which was executed in pursuance of the appointment under Article 115, provided that the appellants and their assigns were to be the Agents of the Company for a period of 30 years from the date of registration of the Company and they were to continue to act as such agents until they of their own will resigned.
The remuneration of the appellants as such Agents was to be a commission of per cent on the amount of sale proceeds of all yarn cloth and other produce of the Company (including cotton grown) which commission was to be exclusive of any remuneration or wages payable to the bankers, Solicitors engineers, etc., who may be employed by the appellants for or on behalf of the Company or for carrying on and conducting the business of the Company.
The appellants were to be paid in addition all expenses and charges actually incurred by them in Connection with the.
business of the Company and supervision and management thereof and the appelants were entitled to appoint any person or persons in Bombay to act as their Agents in Bombay and any other places in connection with the business if the Company.
Clauses 3 and 4 of the agency agreement are important and may be set out in extenso : 3.
Subject to the control and supervision of the Directors, the said Lachminaravan Ramgopal and Son Limited shall have the general conduct and management of the business and affairs of the company and shall have on behalf of the company to acquire by purchase lease or otherwise lands tenements and other Buildings and to erect maintain alter and extend factores ware houses, engine house and other buildings in Hyderabad and ' elsewhere in the territories of His Exalted Highness the Nizam and in India and to purchase, pay for, sell, resell, and repurchase machinery, engines, plant, raw cotton, waste, jute, wool and 399 other fibres and produce, stores and other materials and to manufacture yarn cloth and other fabrics and to sell the same either in the said territories as well as elsewhere in India and either on credit or for cash, or for present or future delivery, and to execute become parties to and where necessary to cause to be registered all deeds, agreements, contracts, receipts and other documents and to insure the property of the Company for such purposes and to such extent and in such manner as they may think proper; and to institute, conduct, defend, compromise, refer to arbitration and abandon legal and other proceedings, claims and disputes in which the Company is concerned and to appoint and employ discharge, re employ or replace engineers.
managers, retain commission dealers, muccadums, brokers, clerks, mechanics, workmen and other officers and servants with such powers and duties and upon such terms as to duration of office remuneration or otherwise as they may think fit ; and to draw, accept endorse, negotiate and sell Bills of Exchange and Hundies with or without security and to receive and give receipts for all moneys payable to or to be received by the company and to draw cheques against the moneys of the company and generally to make all such arrangements and do all such acts and things on behalf of the Company, its successors and assignsas may be necessary or expedient and as are not specifically reserved to be done by the Directors.
4.The said Lachminarayan Ramgopal & Son Ltd., shall be at liberty to deal with the Company by way of sale to the Company of cotton all raw materials and articles required for the purpose of the Company and the purchase from the Company of yarn cloth and all other articles manufactured by the Company and otherwise, and to deal with any firm in which any of the shareholders of the said Lachminarayan Ramgopal & Son Ltd., may be directly or indirectly concerned provided always such dealings are sanctioned passed or ratified by the Board of Directors either before or after such dealings.
Clause 8 provided that two of the members for the time being of the appellants were at the option of the 400 appellants to be the ex officio Directors of the Company and clause 9 empowered the appellants to assign the agreement and the rights of the appellants thereunder subject to the approval and sanction of the Board to any person, firm or Company having authority by its constitution to become bound by the obligations undertaken by the appeallants.
No materials other than these 'were placed by the appellants either before the Income tax Authorities or the High Court and the questions that arise before us have to be determined only on these materials.
If on the construction of these documents we arrive at the conclusion that the position of the appellants was not that of servants but the agents of the Company the further question would have to be determined whether the activities of the appellants amounted to the carrying on of business.
If they were not the servants of the Company, the remuneration which they received would certainly not be wages or salary but if they were agents of the Company the question would still survive whether their activities amounted to the carrying on of business in which case only the remuneration which they received from the Company would be income, profits or gains from business.
The distinction between a servant and an agent is thus indicated in Powell 's Law of Agency, at page 16 : (a)Generally a master can tell his servant what to do and how to do it.
(b) Generally a principal cannot tell his agent how to carryout his instructions.
(c) A servant is under more complete control than an agent, and also at page 20: (a)Generally, a servant is a person who not only receives instructions from his master but is subject to his master 's right to control the manner in which he carries out those infructions.
An agent receives his principal 's instructions but is generally free to carry out those instructions according to his own discretion 401 (B) Generally, a servant, qua servant, has no authority to make contracts on behalf of his master ' Generally, the purpose of employing an agent is to authorise him to make contracts on behalf of his principal.
(c) Generally, an agent is paid by commission upon effecting the result which he has been instructed by his principal to achieve.
Generally, a servant is paid by wages or salary.
The statement of the law contained in Halsbury 's Laws of England Hailsham Edition Volume 22, page 113, paragraph 192 may be referred to in this connection : "The difference between the relations of master and servant and of principal and agent may be said to be this: a principal has the right to direct what work the agent has to do: but a master has the further right to direct how the work is to be done.
" The position is further clarified in Halsbury 's Laws of England Hailsham Edition ,Volume 1, at page.
193, article 345 where the positions of an agent, a a servant and independent contractor are thus distinguished : " An agent is to be distinguished on the, one hand from a servant, and on the other from an independent contractor.
A servant acts under the direct control and supervision of his master, and is bound to conform to all reasonable orders given him in the course of his work; an independent contractor, on the other hand, is entirely independent of any control or interference, and merely undertakes to produce a specified resulted employing his own means to produce that result.
An ament, though bound to exercise his authority in accordance with all lawful instructiOns which may be given to him from time to time by his principal, is not subject in its exercise to the direct control or supervision of the principal.
An agent, as such is not a servant, but a servant is generally for some purposes his master 's implied agent, the extent of the agency depending upon the duties or position of the servant ' "Considering the position of the appellants in the light of the above principles it is no doubt true that the 52 402 appellants were to act as the agents of the Company and carry on the general management of the business of the Company subject to the control and supervision of the Directors.
That does not however mean that they acted under the direct control and supervision of the Directors in regard to the manner or method of their work.
The Directors were entitled to lay down the general policy and also to give such directions in regard to the management as may be considered necessary.
But the day to day management of the business of the Company as detailed in Article I 1 6 of the Articles of Association and clause 3 of the Agency Agreement above set out was within the discretion of the appellants and apart from directing what work the appellants had to do as the agents of the Company the Directors had not conferred upon them the further right to direct how that work of the general management was to be done.
The control and supervision of the directors was a general control and supervision and within the limits of their authority the appellants as the agents of the Company had perfect discretion as to how that work of general management was to be done both in regard to the method and the manner of such work.
The appellants for instance had perfect latitude to enter into agreements and contracts for such purpose and to such extent and in such manner as they thought proper.
They had the power to appoint, employ, discharge, reemploy or replace the officers and servants of the Company with such powers and duties and upon such terms as to duration of office remuneration or otherwise as they thought fit.
They had also the power generally to make all such arrangements and to do all such things and acts on behalf of the Company, as might be necessary or expedient and as were not specifically reserved to be done by the Directors.
These powers did not spell a direct control and supervision of the Directors as of a master over his servant but constituted the appellants the agents of the Company who were to exercise their authority subject to the control and supervision of the Directors but were not subject in such exercise to the direct control or supervision of the principals.
The liberty given to the appellants under clause 4 of the Agency 403 Agreement to deal with the Company by way of sale and purchase of commodities therein mentioned also did not spell a relation as between master and servant but empowered the appellants to deal with the Company as Principals in spite of the fact that under clause 8 of the Agreement two of their members for the time being were to be the ex officio Directors of the Company.
The power to assign the Agreement and the rights of the appellants thereunder reserved to them under clause 9 of the Agency Agreement though subject to the approval and sanction of the Board was hardly a power which could be vested in a servant.
There was further the right to continue in employment.
as the agents, of the Company for a period of 30 years from the date of the registration thereof and thereafter until the appellants of their own will resigned, which also would be hardly consistent with the employment of the appellants as mere servants of the Company.
The remuneration by way of commission of 2 1/2 per cent.
of the amount of sale proceeds of the produce of the Company savoured more of the remuneration given by a principal to his agent in the carrying out of the general management of the business of the principal@ than of wages or salary which would not normally.
be on such a basis.
All these circumstances together with the power of sub delegation reserved under Article 118 in our opinion go to establish that the appellants were the agents of the Company and not merely the servants of the Company remunerated by wages or salary.
Even though the position of the appellants qua the Company was that of agents and not servants as stated above it remains to be determined whether the work which they did under the Agency Agreement amounted to carrying on business so as to constitute the remuneration which they received thereunder income, profits or gains from business.
The contention which was urged before us that the appellants only worked as the agents of the Mills Company and no others and therefore what they did did not constitute a business does not avail the appellants.
The activities in order to constitute a business need not necessarily be concerned with several.
individuals or concerns.
They would constitute 404 business in spite of their being restricted to only one individual or concern.
What is relevant to consider is what is the nature and scope of these activities though either by chance or design these might be restricted to only one individual or concern.
It is the nature and scope of these activities and not the extent of the operations which are relevant for this purpose.
The activities of the appellants certainly did not come within the inclusive definition of business which is given in section 2 clause 4 of the Excess Profits Tax Regulation, Hyderabad.
Business is there defined to include any trade, commerce or manufacture or any adventure in the 'nature of a trade, commerce or manufacture or any profession or vocation but not to include a profession carried on by an individual or by individuals in partnership if the profits of the profession depend wholly or mainly on his or their personal qualifications unless such profession consists wholly or mainly in the making of contracts on behalf of other persons or giving to other persons of advice of a commercial nature in connection with the making of contracts.
The work which the appellants did under the terms of the Agency Agreement constituted neither trade, commerce or manufacture or any adventure: in the nature of trade, commerce or manufacture nor was it a profession or vocation.
, The activities which constitute carrying on business need not necessarily consist of activities by way of trade, commerce or manufacture or activities in the exercise of a profession or vocation.
They may even consist of rendering services to others which services may be of a variegated character.
The considerations which apply in the case of individuals in the matter of determining whether the activities constitute a business within the meaning of the, inclusive definition thereof set out above may not apply in the case of incorporated companies.
Even though the activities if carried on by individuals might constitute business in that sense they might not constitute such business when carried on by incorporated companies and resort must be had to the general position in law in order to determine whether the incorporated company was carrying on business ad 405 as to constitute the income earned by it income ' profits or gains from business.
Reference may be made in this context to William Esplen, Son and Swainston, Limited vs Commissioners of Inland Revenue (1).
In that case a private limited company was incorporated for carrying on business as naval architects and consulting engineers.
: Before the formation of the company, a partnership had existed for many year between three persons who, on incorporation, became the sole shareholders and directors of the company.
The partnership had carried on the profession.
of naval architects and consulting engineers and the work done by the company was identical in character with that formerly done by the partnership which it succeeded.
The work done by the company was identical in all respects with the work of a professional naval architect and consulting engineer, and was performed by the said three shareholders and directors of the company personally.
A question arose whether the company was carrying on a profession within the meaning of section 39 paragraph C of the Finance (No. It was contended that it carried on a profession of naval architects and consulting engineers because the members composing it were three naval architects.
That contention was however negatived and it was held that even though what was to be looked at was the character of the work done by the company, it was not carrying on the profession of the naval architects within the meaning of the section, because for that purpose it was of the essence of a profession that the profits should be dependent mainly upon the personal qualifications of the person by whom it was carried on and that could only bean individual.
A company such as that could only do a naval architect 's work by sending a naval architect to its customers to do what they wanted to be done and it was held that the company was not carrying on a profession but was carrying on a trade or business in the ordinary sense of the term.
When a partnership firm comes into existence it can be predicated of it that it carries on a business, because partnership according to section 4 of the Indian Partner.ship Act is the relation between persons who have (1) (1919] 2 K.B. 731.
406 agreed to share the profits of a business carried on by all or any of then acting for all.
(See Inderchand Hari Ram V. COMMissioner of Income tax, U.P & C.P.(1)).
But when a company is incorporated it may not necessarily come into existence for the purpose of carrying on a business.
According to section 5 of the Indian Companies Act any seven or more persons (or, where the company to be formed will be a private company, any two or more persons) associated for any lawful purpose may by subscribing their names to a memorandum of association. . . . . form an incorporated company, and the lawful purpose for which the persons become associated might not necessarily be the carrying on of business.
When a company is incorporated for carrying out certain activities it would be relevant to enquire what are the objects for which it has been incorporated.
As was observed by Lord Sterndale, M.R., in Commissioners of Inland Revenuev.
The Korean Syndicate Limited(2) : " If you once get the individual and the company spending exactly on the same basis, then there would be no difference between them at all.
But the fact that the limited company comes into existence in a different way is a matter to be considered.
An individual comes into existence for many purposes, or per.
haps sometimes for none, whereas a limited company comes into existence for some particular purpose, and if it comes into existence for the particular purpose of concessions and turning them to account, then that is a matter to be considered when you come to decide whether doing that is carrying on a business or not." Justice Rowlatt followed the above view of Lord Sterndale, M.R., in Commissioners of Inland Revenue vs Birmingham Theatre Royal Estate Co., Limited(1), and held that " when you are considering whether a certain form of enterprise is carrying on business or not, it is material to look and see whether it is a company that it; doing it.
" The objects of an incorporated company as laid down in the Memorandum of Association are (1) (2) at P. 202.
(3) (1923) I2 Tax Cas.
580 at P. 584.
407 certainly not conclusive of the question whether the activities of the company amount to carrying on of business.
(See Indian Law Reports 55 Calcutta 1059 and (1951] But they are relevant for the purpose of determining the nature and scope of such activities.
The objects of the appellants in this case inter alia were to act as agents for Governments or Authorities or for any bankers, manufacturers, merchants, shippers, Joint Stock Companies and others and carry on all kinds of agency business.
This object standing by itself would comprise within its ambit the activities of the appellants as the agents of the Company and constitute the work which they did by way of general management of the business of the company an agency business.
The words " carry on all kinds of agency business " occurring at the end of the object as therein set out were capable of including within their general description the work which the appellants would do as agents for Governments or Authorities or for any bankers, manufacturers, merchants, shippers and others when they acted as agents of the Company which were manufacturers inter alia of cotton piece goods they would be carrying on agency business within the meaning of this object.
Apart however from this there is the further fact that there was a continuity of operations which constituted the activities of the appellants in the general management of the Company a business.
The whole work of management which the appellants did for the Company within the powers conferred upon them under Article 116 of the Articles of Association and clause 3 of the Agency Agreement consisted of numerous and continuous operations and comprised of various services which were rendered by the appellants as the agents of the Company.
The appellants were also entitled though with the sanction or ratification by the Board of Directors either before or after the dealings to enter into dealings with the Company by way of sales and purchases of various commodities.
There was nothing in the Agency Agreement to prevent the appellants from acting as the agents of other manufacturers, Joint Stock Companies etc., and the appel lants could have as well acted as the agents of other 408 concerns besides the Company.
All these factors taken, into consideration alongwith the fixity of tenure, the nature of remuneration and the assignability of their rights, are sufficient to enable us to 'come to the conclusion that the activities of the appellants as the agents of the Company constituted a business and the remuneration which the appellants received from the Company under the terms of the Agency Agreement was income, profits or gain from business.
The appellants were therefore rightly assessed for excess profits tax and these appeals must stand dismissed with costs.
Appeal dismissed.

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The difference between the relations of master and servant and of principal and agent may be said to be this: a principal has the right to direct what work the agent has to do: but a master has the further right to direct how the work is to be done.
The positions of an agent, a servant and independent contractor are distinguished as under: An agent is to be distinguished on the one hand from a servant, and on the other from an independent contractor.
A servant acts under the direct control and supervision of his master, and is bound to conform to all reasonable orders given to him in the course of his work; an independent contractor, on the other hand, is entirely independent of any control or interference and merely undertakes to produce a specified result, employing his own means to produce that result.
An agent, though bound to exercise his authority in accordance with all lawful instructions which may be given to him from time to time by his principal, is not subject in its exercise to the direct control or supervision of the principal.
An agent, as such is not 9, servant, but a servant is generally for some purposes his master 's implied agent, the extent of the agency depending upon the duties or position of the servant.
Held, that the position of the appellants in the light of the principles stated above and the terms of the Agency Agreement was that of the agents of the Dewan Bahadur Ram Gopal Mills Ltd., and they carried on the general management of the business of the company subject to the control and supervision of the Directors.
394 The control and supervision of the Directors was, however, a general control and supervision and within the limits of their authority the appellants as the agents of the company had perfect discretion as to how that work of general management was to be clone both in regard to the method and the manner of such work and therefore the circumstances of the case together with the of power of sub delegation reserved under the Articles of Association established beyond doubt that the appellants were the agents of the company and not merely the servants of the company remu nerated by wages or salary.
Held further, that various factors along with the fixity of tenure, the nature of remuneration and the assignability of their rights were sufficient to prove that the activities of the appellants as the agents of the company constituted a business and the remuneration which the appellants received from the company under the terms of the Agency Agreement was income, profits or gains from business and the appellants were rightly assessed under the provisions of Hyderabad Excess Profits Tax Regulation.


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N: Criminal Appeal Nos.
844 845 of 1985.
From the Judgment and Order dated 1.12.1982 of the Delhi High Court in Crl.
(Main) No. 551 of 1982.
Anil Deo Singh, R.N. Poddar and P.K. Mukharjee for the Appellants.
Anil Kumar Gupta, Amicus Curiae for the Respondents.
The Judgment of the Court was delivered by 814 B.C.RAY, J.
The only question involved in these two appeals is whether the criminal proceedings initiated against the appellants, i.e. Balbir Singh Sub Inspector and Ram Shanker, Constable of Delhi Police Force is maintainable in the absence of any prior sanction obtained from the Lt. Governor as required under s.197 (3) of the Code of Criminal Procedure.
Section 197(1) of the Code of Criminal Procedure envisages that no court can take cognizance of any offence alleged to have been committed by a Judge or Magistrate or a public servant while acting or purporting to act in the discharge of his official duty without previous sanction of the Government.
Sub section (2) of that Section further provides that no court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in discharge of his official duty, without obtaining the prior sanction of the Central Government.
Sub section (3) of the said Section further provides that the State Government may by notification direct that the provisions of Sub section (2) shall apply, to such class or category of members of the Forces charged with the maintenance of public order as may be specified in the said order, and upon such notification being made, the provisions of Sub section (2) will apply as if for the expression "Central Government" occurring therein, the expression "State Government were substituted.
The appellants are undoubtedly the members of Delhi Police Force.
It is also not in dispute that these appellants do not fall within the category of officers mentioned in Sub Section (1) of Sec.
197 of Criminal Procedure Code and as such no prior sanction of the Government is necessary in order to launch a prosecution against these officers.
The only question remains to be considered is whether the appellants being members of the Delhi Police Force are entitled to get the benefit of Sub Section (3) of Section 197 of Criminal Procedure Code by virtue of the notification No. S.O. 183(E) dated 20th March, 1974 issued by the Under Secretary of India read with the notification dated 7th April, 1980 issued by the Lt. Governor, Delhi under No.
F.10/77/78 HP II.
Delhi is a Union Territory within the meaning of Article 1 read with the First Schedule to the Constitution as amended by the Constitution (7th amendment) Act 1956.
The power to administer the Union Territory is vested in the President under Article 239 of the Constitution and Clause 1 of the said Article empowers the President to administer the Union Territory through 815 and Administrator to be appointed by him.
The Administrator appointed by the President under article 239(1) of the Constitution with the designation of Lt. Governor of Delhi derives only such powers, functions and duties as are entrusted to him by the President under article 239(1).
In accordance with the provisions of this Art 239(1) the aforesaid notification dated 20th March, 1974 has been made whereby the President had directed that the Administrators of all the Union Territories other than Arunachal Pradesh and Mizoram exercise, subject to the control of the President, the powers and discharge the functions under the Code of Criminal Procedure 1973 as mentioned in Schedule annexed thereto, subject to the condition mentioned therein.
The said notification was enforced on 1st April, 1974.
In this Schedule all powers and functions of the State Government except those conferred by Sections 8 and 477 of the Code were conferred on the Administrator.
Therefore, by virtue of this notification, the President empowered the Administrator of Union Territories, i.e. Lt. Governor of Delhi to exercise the powers and functions of the State Government as provided in the Code of Criminal Procedure except the powers and functions provided in Sections 8 and 477 of the said Act.
It also appears from the notification dated 7th April, 1980 that the Lt. Governor directed that the provisions of Sub Section (2) of Sec.197 "shall apply to serving police officials of all ranks of Delhi Police Force" charged with the maintenance of public order.
This notification was made in exercise of powers conferred upon the administrator under Sub Section (3) of Sec.
197 of the Code of Criminal Procedure read with the Government of India Notification Dated March 20, 1974 mentioned before Reading these two notifications together, it is crystal clear that to start a proceeding against the members of all ranks of Deli Police Officials in a Criminal Court, previous sanction of the Lt. Governor is imperative, provided the offence alleged to have been committed by such members of the Delhi Police Force has been committed while acting or purporting to act in discharge of their official duty.
In the instant case the act of tampering of the Search Memos by the two appellants i.e. Balbir Singh and Ram Shankar cannot be said to have been done in discharge of their official duties inasmuch as the said Search Memos were in the custody of the Court.
The complaint was filed by the Special Railway Magistrate alleging that Search Memos which were signed by the Sub Inspector Balbir Singh did not bear any signature of the witness Ram Shankar at the time when the said Search Memos were in the custody of the Court.
Subsequently, it has been interpolated by getting the same signed by the accused Ram Shankar.
This 816 act of tampering and interfering with the records of the Court by the two petitioners by any stretch of imagination cannot be said to have been done or purported to have been done by the petitioners in discharge of their official duty.
It is pertinent to refer in this connection to the decision of this Court in Matajog Dobey vs HC.
Bhari, [1955] 2 S.C.R. 925, where this Court laid down the scope of the protection afforded by Sec.
197 of the Code of Criminal Procedure in the following terms : "There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.
" These observations have been followed by this Court in Pukhraj vs State of Rajasthan & Anr., ; In that case the Post Master General of Rajasthan abused and kicked a Clerk of the Head Post Office when a clerk of the Head Post Office of Jodhpur went to make some oral representations to the Post Master General.
The clerk filed a complaint against the Post Master General under Sec. 323 and 504 I.P.C. before the Additional Munsif Magistrate of Jodhpur city.
An application was filed praying that no cognizance of the offence would be taken without the sanction of the Government under Sec.
197 of Criminal Procedure Code.
It was held that the acts alleged were not done in due discharge of his official duty and so no prior sanction of the Government was necessary under Section 197 of the Code.
In Bhagwan Prasad Srivastava vs N.P. Misra, [1971] 1 S.C.R. 317, the respondent filed a complaint alleging that the appellant, a Civil Surgeon used defamatory and abusive words and got him pushed out by the cook of the hospital.
It was found that the case was not covered by Sec.
197 of the said Act as those acts were not done in discharge of his official duty.
In the case of Darshan Kumar vs Sushil Kumar Malhotra & Ors., , it was found that the acts complained of against Respondents Nos.
1,3 and 4 were purported to have been done by them in discharge of their official duties and it was reasonably connected with their official duties.
As such it was held that prior sanction of the State Government was necessary in prosecuting them in respect of the offence, if any, made out from the commission of such acts.
817 As regards scope and ambit of Sec.
197(3) of the Code of Criminal Procedure it has been rightly observed by the Division Bench of the Gujarat High Court in Bhikhaji Vaghji vs L.K Barot and Ors. , that after the issuance of the notification by the Government under Sec.
197(3) of the Criminal Procedure Code directing that the provisions of Sub Sec.(2) of Sec. 197 shall apply to the Police Officers charged with the maintenance of public order, the same could not be questioned on the ground of non application of mind as it is within the scope and ambit of Sub Sec.
(3) of Sec. 197 of the Code.
It was also observed that : "Before the protection of sub sec.(2) of Section 197 of the Code could be had and the proceedings are dropped on that count, the learned Magistrate is under an obligation to decide that the alleged acts attributed to the members of the police force are acts done in the discharge of their official duties, or at any rate, they purport to be, or bear the colour or semblance of, the acts that could be done in the discharge of their official duties.
" We have already said that the alleged acts of tampering the Search Memo while the same was in custody of the Court cannot be deemed to be an act purported to have been done by these two appellants in discharge of their official duties.
Therefore, the previous sanction of the Lt. Governor as provided in Section 197(3) Criminal Procedure Code was, in our considered opinion, not at all necessary for initiating the proceedings against these two appellants, who are members of the Delhi Police Force.
For the reasons stated hereinbefore the Appeal filed by the Delhi Administration succeeds and is allowed and the Appeal filed by the accused is dismissed.
The Judgment and Order of the High Court declaring the impugned notification dated 7th April, 1980 issued by the Lt. Governor of Delhi to be ultra vires is set aside and the learned Magistrate is directed to proceed with the case in accordance with law.
We are thankful to Sri Anil Kumar Gupta for the assistance he has rendered as Amicus Curiae.
M.L.A. Criminal Appeal 844/85 dismissed.
Criminal Appeal 845/85 partly allowed.

Output:
A Complaint was filed by the Special Railway Magistrate against the appellants, Balbir Singh and Ram Shankar, members of Delhi Police Force, alleging that the Search Memos which were signed by the sub Inspector Balbir Singh did not bear any signature of the witness Ram Shankar at the time when the said Search memos were in the custody of the Court and that they were interpolated subsequently by getting the same signed by the accused, Ram Shankar.
The appellants contended before the Trial Court that the aforesaid complaint was not maintainable since prior sanction as required by section 197(3) Cr.
P.C. was not obtained by the complainant to prosecute them.
The trial court rejected the contention and the High Court confirmed the same in appeal by the appellants.
The High Court, however, held that the Notification No. F.10/77/78 HP II dated 7th April 1980 issued by the Lt. Governor directing that the provisions of sub s.(2) of section 197 "shall apply to serving police officials of all ranks of Delhi Police Force" charged with the maintenance of public order, was bad in law as the Lt. Governor had no authority to issue the said Notification under sub s.(3) of section 197 Cr.
Allowing Criminal Appeal No. 845/85 partly and dismissing the other appeal, ^ HELD: 1(i) The Judgment and order of the High Court declaring the impugned notification dated 7th April 1980 issued by the Lt. Governor of Delhi to be ultra vires is set aside and the learned Magistrate is directed to proceed with the case in accordance with law.
[817 F] (ii) By virtue of the Notification No. S.O.183(E) dated 20th March 1974, the President empowered the Administrator of Union Territories, i.e. Lt. Governor of Delhi to exercise the 813 powers and functions of the State Government as provided in the Code of Criminal Procedure except the powers and functions provided in sections 8 and 477 of the said Act.
The Notification dated 7th April 1980 issued by the Lt. Governor was made in exercise of powers conferred upon him under sub section (3) of Sec. 197 of the Code of Criminal Procedure read with the Government of India Notification dated March 20, 1974 mentioned before.
Therefore, the Notification is not ultra vires the Constitution.
[815 D E] 2.
Reading the two notifications together, it is crystal clear that to start a proceeding against the member of all ranks of Delhi Police Officials in a Criminal Court, previous sanction of the Lt. Governor is imperative, provided the offence alleged to have been committed by such members of the Delhi Police Force has been committed while acting or purporting to act in discharge of their official duty.
[815 F] In the instant case, the previous sanction of the Lt. Governor as provided in Section 197 (3) Criminal Procedure Code was, not at all necessary for initiating the proceedings against the two appellants, since the act of tampering of the Search Memos by them cannot be said to have been done in discharge of their official duties inasmuch as the said Search Memos were in the custody of the Court.
[817 E F] Matajog Dobey vs H.C. Bhari, ; ; Pukhraj vs State of Rajasthan & Anr., ; ; Bhagwan prasad Srivastava vs N.P.Misra, [1971] 1 S.C.R. 317 and Darshan Kumar vs Sushil Malhotra & Ors. 1980 Crl.
L.J. 154 relied upon.
Bhikhaji Vaghaji vs L.K. Barot and Ors., 1982 Cr.
L.J. 2014 approved.


Input:
minal Appeal No. 62 of 1953.
Appeal under.
Article 134(1)(c) of the Constitution from the Judgment and Order dated the 27th March 1953 of the High Court of Judicature at Patna in Criminal Revision No. 1290 of 1951 arising out of 79 the Judgment and Order dated the 12th November 1951 of the Court of Sessions Judge, Singhbhum in Criminal Revision No. 16 of 1951.
Mahabir Prasad, Advocate General for the State of Bihar (Shyam Nandan Prasad and M. V. Sinha, with him), for the appellant.
section N. Mukherji, for the respondent.
March 24.
The Judgment of the Court was delivered by SINHA J.
In this appeal we did not think it necessary to hear the counsel for the respondents on the merits of the decision appealed from in the view we have taken, as will presently appear, of the terms of the surety bond which was being sought to be enforced against the sureties, the respondents in this Court.
The surety bond in question was taken in circumstances which clearly appear from the follow ing resolution of the Government of Bihar dated the 17th October 1946: "Whereas one Maulavi A. Ali Khan, who was convicted under section 120 B read with section 420, Indian Penal Code by the First Special Tribunal, Calcutta and sentenced to four years ' rigorous imprisonment and a fine of rupees one lac which conviction and sentence have been subsequently upheld by the Patna High Court, has submitted to the Provincial Government a petition praying for suspension of his sentence in order to enable him to prefer an appeal against the said conviction and sentence to the judicial Committee of the Privy Council And Whereas the Provincial Government have granted the prayer of the petitioner subject to the conditions hereinafter specified which the petitioner has accepted: Now, therefore, the Governor of Bihar hereby orders that the execution of the aforesaid sentence of Maulavi A. Ali Khan be suspended pending the hearing of the proposed appeal to the Judicial Committee of the Privy Council on his furnishing security worth Rs. 50,000 with two sureties of Rs. 25,000 each to the 80 satisfaction of either the Sub Divisional Officer, Jamshedpur or the Deputy Commissioner of Singhbhum and undertaking (1) to furnish proof by the 1st December, 1946 of his having taken all necessary steps for the filing of the appeal and also (2) to surrender to the Deputy Commissioner of Singhbhum within three days of the receipt of the notice of the order or judgment of the Judicial Committee if by the said order or judgment the sentence is upheld either partly or wholly.
The petitioner, if in custody, may be released if he complies with the above conditions.
By order of the Governor of Bihar, (sd.) T.G.N. Ayyar, Secretary to Government".
In pursuance of that resolution the surety bond in question was taken from the respondents.
The material portion of the bond (exhibit 2) is in these terms: "We, section T. Karim, son of Abdul Wahab, by caste Mohammedan, by occupation Contractor and Proprietor Jamshedpur and Star Talkies, Jamshedpur, residing at Sakchi, police station Sakchi in Town Jamshedpur, district Singhbhum, (2) Manik Homi, son of late Homi Engineer, by caste Parsee, by occupation zamindar of Mango, residing at Mango, police station Sakchi, district Singhbhum, Stand surety for the amount of Rs. 25,000 only each and bind ourselves to the Government of Bihar of which we bind ourselves, our heirs, executors and successors firmly for payment of Rs. 50,000 only in case Mr. Ali Khan fails to furnish proof by the 1st December 1946 of his having taken all necessary steps for the filing of the appeal and to surrender to the Deputy Commissioner of Singhbhum within three days of the receipt of the notice of the order or judgment of the Judicial Committee if by the said order or judgment the sentence is upheld either partly or wholly".
It is dated the 19th October, 1946.
As a result of the constitutional changes the jurisdiction of the Privy Council came to be transferred to the Federal Court by virtue of the Abolition of the Privy Council Juris 81 diction Act (Constituent Assembly Act V of 1949) which came into force on the 10th October, 1949.
As, from that date ("the appointed day") all appeals ' pending before the Judicial Committee of the Privy Council by virtue of section 6 stood transferred to the Federal Court.
Ali Khan 's appeal to the Privy Council thus got transferred to the Federal Court and in due course was heard by this Court.
This Court dismissed the appeal in November 1950.
In the meantime Ali Khan, the convicted person, who had gone to London to look after his appeal there, migrated to Pakistan and thus placed himself beyond the jurisdiction of the courts in India.
In December 1950 the Deputy Commissioner of Singhbhum issued notice to the sureties, the respondents, to produce Ali Khan within three days.
On their failure to do so, the Deputy Commissioner called upon the sureties to show cause why their bond should not be forfeited.
The sureties raised certain legal objections to the proceedings taken by the Deputy Commissioner.
They contended that he had no jurisdiction to initiate the proceedings.
The Deputy Commissioner postponed the decision of the preliminary objections and directed that all the points in controversy shall be heard and determined at the final hearing.
Against that order the respondents moved the Sessions Judge of Singhbhum who by his orders dated the 12th November, 1951 overruled their objections and held that the Deputy Commissioner had jurisdiction to initiate the proceedings.
It is not necessary to set out his reasons.
The respondents moved the High Court in revision against the orders aforesaid of the Sessions Judge.
A Division Bench of the High Court allowed the application holding that the Deputy Commissioner had no such jurisdiction as he purported to exercise in the matter of enforcing the terms of the surety bond against them.
Accordingly, the High Court quashed the proceedings before the Deputy Commissioner.
Hence this appeal by the State of Bihar.
From the terms of the surety bond quoted above it would appear that the sureties bound themselves for 11 82 payment of Rs. 50,000 "only in case Mr. Ali Khan fails. . . . . to surrender to the Deputy Commissioner of Singhbhum within three days of the receipt of the notice of the order or judgment of the Judicial Committee if by the said order or judgment the sentence is upheld either partly or wholly".
In view of this clear provision in the bond the terms of which being penal in nature must be very strictly construed, it cannot be said that the contingencies contemplated by the parties has occurred.
There was no judgment or order of the Judicial Committee upholding either in part or in whole the sentence against Ali Khan.
As the terms of the bond so construed cannot be said to have been fulfilled, the penalty stipulated has not been incurred.
It must therefore be held that the proceedings taken against the respondents were entirely misconceived.
It was in these circumstances that we did not think it necessary to hear the appeal on its merits, that is to say, on the point of jurisdiction on which the case had been decided by the High Court.
It was contended by the Advocate General of Bihar who appeared in support of the appeal that in the events which had happened there could be no judgment or order of the Judicial Committee and that therefore the judgment of this Court, which by virtue of the constitutional changes had come by the jurisdiction vested in the Privy Council, should be deemed to be the judgment or order contemplated by the parties to the surety bond.
In our opinion, there is no substance in this contention, firstly, because there is no term in the bond to the effect that the surety would be bound by any judgment or order given by such other court as may succeed to the jurisdiction then vested in the Judicial Committee of the Privy Council to hear the appeal preferred by Ali Khan against his conviction by the courts in India: and secondly, because there is no room, while construing the penal clause of a surety bond, for the application of a legal fiction as suggested on behalf of the appellant.
The Government through their legal advisers were not 83 circumspect enough to insert any such alternative clause as would have given the judgment or order of, this Court the same effect as is contemplated by the terms of the surety bond quoted above.
The appeal must therefore be dismissed in limine.
Appeal dismissed.

Output:
In a surety bond the sureties bound themselves for payment of Rs. 50,000 "only in case Mr. Ali Khan fails. . to surrender to the Deputy Commissioner of Singhbhum within three, days of the receipt of the notice of the order or judgment of the Judicial Committee if by the said order or judgment the sentence is upheld either partly or wholly".
As a result of the constitutional changes the jurisdiction of the Privy Council came to be transferred to the Federal Court, and eventually Ali Khan 's appeal to the Privy Council was heard and dismissed by the Federal Court.
Thereupon the Deputy Commissioner issued notice to the sureties to produce Ali Khan within three days.
Held, that the proceedings taken against the sureties were entirely misconceived as the penalty stipulated had not been incurred, in view of the terms of the bond set out above.
Provisions in a surety bond which are penal in nature must be very strictly construed and there is no room for the application of a legal fiction that the judgment of the Federal Court must be deemed to be the judgment or order contemplated by the parties to the surety bond.


Input:
ivil Appeal No. 177 (NL) of 1984.
From the Judgment and order dated 5.9.1983 of the High Court of Bombay in Special Civil Application No. 59 of 1983 Dr. Y.S. Chitale and V.N. Ganpule for the Appellant.
G.B. Pai, Parveen Kumar and Vivek Ghambir for the Respondents.
606 The Judgment of the Court was delivered by VENKATARAMIAH, J.
The short question which arises for consideration in this case is whether a teacher employed in a school falls within the definition of the expression 'workman ' as defined in section 2(s) of the (hereinafter referred to as 'the Act ').
The appellant, Miss A. Sundarambal, was appointed as a teacher in a school conducted by the Society of Franciscan Sisters of Mary at Caranzalem, Goa.
Her services were terminated by the Management by a letter dated 25th April, 1975.
After she failed in her several efforts in getting the order of termination cancelled she raised an industrial dispute before the Conciliation officer under the Act.
The conciliation proceedings failed and the Conciliation officer reported accordingly to the Government of Goa, Daman and Diu by his letter dated 2nd May, 1982.
On receipt of the report the Government considered the question whether it could refer the matter for adjudication under section 10(1)(c) of the Act but on reaching the conclusion that the appellant was not a 'workman ' as defined in the Act which alone would have converted a dispute into an industrial dispute as defined in section 2(k) of the Act, it declined to make a reference.
Thereupon, the appellant filed a writ petition before the High Court of Bombay, Panaji Bench, Goa for issue of a writ in the nature of mandamus requiring the Government to make a reference under section 10(1)(c) of the Act to a Labour Court to determine the validity of the termination of her services.
The said writ petition was registered as Special Leave Application No. 59 of 1983.
That petition was opposed by the respondents.
After hearing the parties concerned, the High Court dismissed the writ petition holding that the appellant was not a workman by its judgment dated 5th September, 1983.
Aggrieved by the judgment of the High Court, the appellant has filed this appeal by special leave.
Two questions arise for consideration in this case; (1) whether the school, in which the appellant was working, was an industry, and (2) whether the appellant was a 'workman ' employed in that industry.
It is, however, not disputed that if the appellant was not a 'workman ' no reference under section 10(1)(c) of the Act could be sought.
The first question need not detain us long.
In University of Delhi & Anr.
vs Ram Nath, ; a bench consisting of three learned judges of this Court held that the University of Delhi, which 607 was an educational institution and Miranda House, a college affiliated to the said University, also being an educational institution would not come within the definition of the expression 'industry ' as defined in section 2(j) of the Act.
Section 2(j) of the Act states that 'industry ' means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen.
Gajendragadkar, J., (as he then was) who decided the said case, held that the educational institutions which were predominantly engaged in teaching could not be considered as industries within the meaning of the said expression in section 2(j) of the Act and, therefore, a driver who was employed by the Miranda House could not be considered as a workman employed in an industry.
The above decision came up for consideration in Bangalore Water Supply & Sewerage Board, etc.
vs R. Rajappa & others; , before a larger bench of this Court.
In that case the decision in University of Delhi & Anr.
vs Ram Nath, (supra) was overruled.
Krishna Iyer, J. who delivered the majority judgement observed at Page 283 of the Report thus: "(a) Where a complex of activities, some of which qualify for exemption, others not, involves, employees on the total undertaking, some of whom are not 'workmen ' as in the University of Delhi case or some departments are not productive of goods and services if isolated, even then, the predominant nature of the services and the integrated nature of the departments as explained in the Corporation of Nagpur, will be true test.
The whole undertaking will be 'industry ' although those who are not 'workmen ' by definition may not benefit by the status.
" The learned Judge, however, observed that while an educational institution was an industry it was possible that some of the employees in that industry might not be workmen.
At page 261 of the Report with reference to the case of University of Delhi & Anr.
vs Ram Nath, (supra) the learned Judge observed thus: "The first ground relied on by the Court is based upon the preliminary conclusion that teachers are not 'workmen ' by definition.
Perhaps, they are not, because teachers do not do manual work or technical work.
We are not too sure whether it is proper to disregard, with contempt, manual work and separate it from education, nor are we too sure whether in our technological universe, edu 608 cation has to be excluded.
However, that may be a battle to be waged on a later occasion by litigation and we do not propose to pronounce on it at present.
The Court, in the University of Delhi, proceeded on that assumption viz. that teachers are not workmen, which we will adopt to test the validity of the argument.
" Thus it is seen that even though an educational institution has to be treated as an industry in view of the decision in the Bangalore Water Supply & Sewerage Board, etc.
vs R. Rajappa & others, (supra) the question whether teachers in an educational institution can be considered as workmen still remains to be decided.
Section 2(s) of the Act defines 'workman ' thus: "2(s). 'workman ' means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be expressed or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person (i) who is subject to the (46 of 1940), or the (45 of 1950), or the Navy (Discipline) Act, 1934 (34 of 1934); or (ii) who is employed in the police service or as an officer or other employee of a prison; or (iii) who is employed mainly in managerial or administrative capacity; or (iv) who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
" 609 In order to be a workman, a person should be one who satisfies the following conditions: (i) he should be a person employed in an industry for hire or reward; (ii) he should be engaged in skilled or unskilled manual, supervisory, technical or clerical work; and (iii) he should not be a person falling under any of the four clauses, i.e., (i) to (iv) mentioned in the definition of 'workman ' in section 2(s) of the Act.
The definition also provides that a workman employed in an industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, an industrial dispute, or whose dismissal, discharge or retrenchment has led to that dispute.
We are concerned in this case primarily with the meaning of the words 'skilled or unskilled manual, supervisory, technical or clerical work '.
If an employee in an industry is not a person engaged in doing work falling in any of these categories, he would not be a workman at all even though he is employed in an industry.
The question for consideration before us is whether a teacher in a school falls under any of the four categories, namely, a person doing any skilled or unskilled manual work, supervisory work, technical work or clerical work.
If he does not satisfy any one of the above descriptions he would not be workman even though he is an employee of an industry as settled by this Court in May and Baker (India) Ltd. vs Their Workmen., [1961] (II) L.L.J. 94.
In that case this Court had to consider the question whether a person employed by a pharmaceutical firm as a representative (for canvassing orders) whose duties consisted mainly of canvassing orders and any clerical or manual work that he had to do was only incidental to his main work of canvassing could be considered as a workman as defined in the Act.
Dealing with the said question Wanchoo, J. (as he then was) observed thus: "As 'workman ' was then defined as any person employed in any industry to do any skilled or unskilled manual or clerical work for hire or reward.
Therefore, doing manual or clerical work was necessary before a person could be called a workman.
This definition came for consideration before industrial tribunals and it was consistently held that the designation of the employee was not of great moment and what was of importance was the nature of his duties.
If the nature of the duties is manual or clerical, then the person must be held to be a workman.
On the other hand if manual or clerical work is only a small part of the duties of 610 the person concerned and incidental to his main work which is not manual or clerical, then such a person would not be a workman.
It has, therefore, to be seen in each case from the nature of the duties whether a person employed is a workman or not, under the definition of that work as it existed before the amendment of 1956.
The nature of the duties of Mukerjee is not in dispute in this case and the only question therefore is whether looking to the nature of the duties it can be said that Mukerjee was a workman within the meaning of section 2(s) as it stood at the relevant time.
We find from the nature of the duties assigned to Mukerjee that his main work was that of canvassing and any clerical or manual work that he had to do was incidental to his main work of canvassing and could not take more than a small fraction of the time for which he had to work.
In the circumstances the tribunal 's conclusion that Mukerjee was a workman is incorrect.
The tribunal seems to have been led away by the fact that Mukerjee had no supervisory duties and had to work under the directions of his superior officers.
That, however, would not necessarily mean that Mukerjee 's duties were mainly manual or clerical.
From what the tribunal itself has found it is clear that Mukerjee 's duties were mainly neither clerical nor manual.
Therefore, as Mukerjee was not a workman, his case would not be covered by the and the tribunal would have no jurisdiction to order his reinstatement.
We, therefore, set aside the order of the tribunal directing reinstatement of Mukerjee along with other reliefs." The Court held that the employee Mukerjee involved in that case was not a workman under section 2(s) of the Act because he was not mainly employed to do any skilled or unskilled manual or clerical work for hire or reward, which were the only two classes of employees who qualified for being treated as 'workman ' under the definition of the expression 'workman ' in the Act, as it stood then.
As a result of the above decision, in order to give protection regarding security of employment and other benefits to sales representatives, parliament passed separate law entitled the .
It is no doubt true that after the events leading to the above decision took place section 2(s) of the Act was amended by including persons doing technical work as well as supervisory work.
The question for consideration is whether even after the inclusion of the above two classes of employees in the definition of the expression 611 'workman ' in the Act a teacher in a school can be called a workman We are of the view that the teachers employed by educational institutions whether the said institutions are imparting primary, secondary, graduate or post graduate education cannot be called as 'workmen ' within the meaning of section 2(s) of the Act.
Imparting of education which is the main function of teachers cannot be considered as skilled or unskilled manual work or supervisory work or technical work or clerical work.
Imparting of education is in the nature of a mission or a noble vocation.
A teacher educates children, he moulds their character, builds up their personality and makes them fit to become responsible citizens.
Children grow under the care of teachers.
The clerical work, if any they may do, is only incidental to their principal work of teaching.
We agree with the reasons given by the High Court for taking the view that teachers cannot be treated as 'workmen ' as defined under the Act.
It is not possible to accept the suggestion that having regard to the object of the Act, all employees in an industry except those falling under the four exceptions (i) to (iv) in section 2(s) of the Act should be treated as workmen.
The acceptance of this argument will render the words 'to do any skilled or unskilled manual, supervisory, technical or clerical work ' meaningless.
A liberal construction as suggested would have been possible only in the absence of these words.
The decision in May and Baker (India) Ltd. vs Their Workmen, (supra) precludes us from taking such a view.
We, therefore, hold that the High Court was right in holding that the appellant was not a 'workman ' though the school was an industry in view of the definition of 'workman ' as it now stands.
We may at this stage observe that teachers as a class cannot be denied the benefits of social justice.
We are aware of the several methods adopted by unscrupulous managements to exploit them by imposing on them unjust conditions of service.
In order to do justice to them it is necessary to provide for an appropriate machinery so that teachers may secure what is rightly due to them.
In a number of States in India laws have been passed for enquiring into the validity of illegal and unjust terminations of services of teachers by providing for appointment of judicial tribunals to decide such cases.
We are told that in the State of Goa there is no such Act in force.
If it is so, it is time that the State of Goa takes necessary steps to bring into force an appropriate legislation providing for adjudication of disputes between teachers and the Managements of the educational institutions.
We hope that this lacuna in the legislative area will be filled up soon.
This appeal, however, fails and it is dismissed.
Before we con 612 clude we record the statement made on our suggestion by the learned counsel for the Management, Shri G.P. Pai that the Management would give a sum of Rs 40,000 to the appellant in full and final settlement of all her claims.
The learned counsel for the appellant has agreed to received Rs 40,000 accordingly.
We direct the Management to pay the above sum of Rs 40,000 to the appellant in six instalment.
They shall pay Rs 6,000 on 1.9.1988, Rs 6,000 on 1.10.1988, Rs 6,000 on 1.11.1988, Rs 6,000 on 1.12.1988, Rs 6,000 on 1.1.1989 and Rs 10,000 on 1.2.1989.
There is no order as to costs.
G.N. Appeal dismissed.

Output:
The appellant was a school teacher and her services were terminated by the Management.
She made several efforts in getting the order of termination cancelled but without success.
Ultimately she raised an industrial dispute before the Conciliation officer under the Act.
The conciliation proceedings failed and the conciliation officer reported accordingly to the Government.
The Government considered the question of referring the matter for adjudication under section 10 of the Act But on reaching the conclusion that the appellant was not a 'workman ' as defined in the Act.
it declined to make a reference.
The appellant filed a writ petition before the High Court for issue of.
a Writ of Mandamus requiring the Government to make a reference under section 10(1)(c) of the Act to a Labour Court to determine the validity of the termination of her services.
The High Court dismissed the petition holding that the appellant was not a workman.
This appeal by special leave is against the Judgment of the High Court.
Dismissing the appeal, this Court, ^ HELD: 1.1 Even though an educational institution has to be treated as an industry the teachers employed by educational institutions whether the said institutions are imparting primary, secondary, graduate or post graduate education cannot be called as 'workmen ' within the meaning of section 2(s) of the Act.
Imparting of education which is the main function of teachers cannot be considered as skilled or unskilled manual work or supervisory work or technical work or clerical work.
Imparting of education is in the nature of a mission or a noble vocation.
A teacher educates children, he moulds their character, builds up their personality and makes them fit to become responsible citizens.
Children grow under the care of teachers.
The clerical work, if any they may do, is only incidental to their principal work of teaching.
[608B C; 610A C] 605 1.2 If an employee in an industry is not a person engaged in doing work falling in any of the categories as mentioned in Section 2(s) of the Act, he would not be a workman at all even though he is employed in an industry.
It is not possible to accept the suggestion that having regard to the object of the Act, all employees in an industry except those falling under the four exceptions (i) to (iv) in section 2(s) of the Act should be treated as workmen.
The acceptance of this argument will render the words 'to do any skilled or unskilled manual, supervisory, technical or clerical work ' meaningless.
A liberal construction as suggested would have been possible only in the absence of these words.
[609C D; 611C E] Bangalore Water Supply & Sewerage Board, etc.
vs R. Rajappa & others; , , relied on.
(2) University of Delhi & Anr.
vs Ram Nath, ; and May and Baker (India) Ltd. vs Their Workmen, referred to.
Teachers as a class cannot be denied the benefits of social justice.
It is necessary to provide for an appropriate machine y so that teachers may secure what is rightly due to them.
In a number of States in India laws have been passed for enquiring into the validity of illegal and unjust terminations of service of teachers by providing for appointment of judicial tribunals to decide such cases.
It is time that State of Goa takes necessary steps to bring into force legislation providing for adjudication of disputes between teachers and the Managements of educational institutions.
[611F G] [At the instance of this Court, the Management of the School agreed to pay the appellant Rs.40,000 which this Court directed to be paid in 6 monthly instalments commencing from September, 1988.] [612B]