Input:
Appeal No. 874 of 1962.
Appeal from the judgment and order dated January 15, 1962, of the Madras High Court in Writ Appeal No. 82 of 1959.
A. V. Viswanatha Sastri, G. B. Pai and B. N. Ghosh, for the appellant.
267 B. R. Dolia, M. Rajagopalan and K. R. Chaudhuri, for the respondents.
August 2, 1963.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
The principal question which arises in this appeal relates to the true scope and effect of the provisions contained in section 73 of the (hereinafter called the Act).
The appellant, the Buckingham & Carnatic Co. Ltd., is a company registered under the Indian Companies Act and its registered office is at Madras.
It has a Textile Mill in Madras City which employs 14,000 workmen.
On January 10, 1957, the respondent Venkatiah whose case is sponsored by the respondent Union, the Madras Labour Union, had gone on leave for six days.
Taking into account the intervening holidays, the said leave expired on January18, 1957.
He, however did not join duty on the 19th January as he should have, but remained absent without leave without sending to the appellant any communication for extending his leave.
On the 11th March 1957 he sent a letter to the appellant stating that sometime after reaching his village near Kanigiri he suffered from fever and dysentery and was treated by the Civil Assistant Surgeon, Kanigiri.
This letter was accompanied by a certificate issued by the said Civil Assistant Surgeon.
In this certificate it was stated that Venkatiah suffered from chronic malaria and dysentery from January 15 to, March 7, 1957.
When he appeared before the Manager of the Company, he was asked to go to the Senior Medical Officer of the appellant for examination.
The said Officer examined him and was unable to confirm that he had been ailing for a period of nearly two months.
Acting on that opinion ' the appellant refused to take back Venkatiah and when Venkatiah pressed to be taken back, the appellant informed him on March 23, 1957 that he could not be reinstated as his explanation for his absence was un satisfactory.
The case of Venkatiah was treated by the appellant under Standing Order No. 8(ii) of the Standing Orders of the appellant.
Meanwhile, Venkatiah had applied to the Employees State Insurance Corporation and on or about the 15th June 1957 he obtained cash sickness benefit for the period covered by the medical certificate issued.
by the Civil Assis 268 tant Surgeon, Kanigiri.
The Regional Director to whom Venkatiah had applied for the said assistance accepted the said certificate as alternative evidence and directed that payment may be made to him to the extent permissible under the Act.
Accordingly, Rs. 82 14 00 were paid to him.
When the appellant refused to take back Venkatiah in its employment, the respondent Union took up his case and it was referred for adjudication to the Labour Court at Madras as an industrial dispute (S.P.O. No. A 5411 of 1958).
Before the Labour Court the appellant urged that the reference made was invalid and it also contended that the termination of Venkatiah 's services was 'Justified.
The Labour Court rejected the appellants preliminary object ion about the invalidity of the reference.
It held that if the matter had to be considered solely by reference to the Standing Orders, the appellant was entitled to succeed, because it was justified in acting upon the opinion given by its Medical Officer in regard to the alleged illness of Venkatiah.
When the said opinion was attacked before the Labour Court, it observed that it was easy to make, such an attack and it held that "he was not inclined to accept the correctness of the criticism in the a absence of any strong evidence to show that the Medical Officer was prejudiced against the worker and was motivated with the idea of victimisation".
The respondent, however, succeeded before the Labour Court primarily on the ground that the decision of the appellant not to take back Venkatiah was inconsistent with the provisions of section 73 of the Act.
That is why the Labour Court directed the management of the appellant to reinstate Venkatiah within two weeks after its award came into force without liability to pay back wages, but with continuity of service.
After this award was pronounced by, the Labour Court, the appellant moved the Madras High Court by 2 writ petition and prayed that the said award be quashed (W.P. No. 716 of 1958).
This writ petition was allowed by Mr. Justice Balkrishna Ayyar.
The learned Judge held that section 73 of the Act was inapplicable to the present case and found that, in substance, the labour court had made its award on grounds of sympathy for Venkatiah rather than on the merits of the case.
In the result, the said 269 award was set aside by the learned judge.
The respondent challenged the correctness of this decision by a Letters Patent Appeal before a Division Bench of the Madras High Court (No. LPA 82 of 1959).
The respondent 's appeal was allowed by the Division Bench and in consequence, the award passed by the Labour Court has been restored.
The Division Bench has held that section 73 applied to the present case and that made the refusal of the appellant to take back Venkatiah in its employment illegal.
It has also observed that in refusing to take back Venkatiah the appellant had not properly discharged its obligation of examining Venkatiah 's explanation reasonably and that introduced an infirmity in its decision not to take him back.
In ,other words, according to the Division Bench, the action of the management amounted to contravention of the provisions of section 73 of the Act and was otherwise not fair.
It is against this decision that the appellant has come to this Court with a certificate issued by the Madras High Court under article 133(1)(c) of the Constitution.
Mr. Sastri for the appellant contends that the case of Venkatiah falls squarely within the provisions of Standing Order 8(ii) and the High Court was in error in holding that the decision of the appellant in refusing to condone the absence of Venkatiah was either unfair or improper, or that it contravened the provisions of section 73 of the Act.
Let us first examine Standing Order No. 8(ii) before proceeding any further.
The said Standing Order reads thus: "Absent without Leave: Any employee who absents himself for eight consecutive working days without Leave shall be deemed to have left the Company 's service without notice thereby terminating his contract of service.
If he gives an explanation to the satisfaction of the management, the absence shall be converted into leave without pay or dearness allowance.
Any employee leaving the Company 's service in this manner shall have no claim for re employment in the Mills.
But if the absence is proved to the satisfaction of the Management to be one due to sickness, then such absence shall be converted into medical leave for such period as the employee is eligible with the permissible allowances.
" 270 This Standing Order is a part of the certified Standing Orders which had been revised by an arbitration award between the parties in 1957.
The relevant clause clearly means that if an employee falls within the mischief of its first part, it follows that the defaulting employee has ter minated his contract of service.
The first provision in clause (ii) proceeds on the basis that absence for eight consecutive days without leave will lead to the inference that the absentee workman intended to terminate his contract of service.
The certified Standing Orders represent the relevant terms and conditions of service in a statutory form and they are binding on the parties at least as much, if not more, as private contracts embodying similar terms and conditions of service.
It is true that under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service.
Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf.
But where parties agree upon the terms & conditions of service and they are included in certified Standing Orders, the doctrines of common law or considerations of equity would not be relevant.
It is then a matter of construing the relevant term itself.
Therefore, the, first part of Standing Order 8(ii) inevitably leads to the conclusion that if an employee is absent for eight consecutive days without leave, he is deemed to have terminated his contract of service and thus relinquished or abandoned his employment.
The latter part of this clause, however, provides that the employee can offer an explanation as to his absence and if Ms explanation is found to be satisfactory by the management, his absence will be converted into leave without pay or dearness allowance.
Now this clause is in substance a proviso to its first part.
Before effect is given to the inference of relinquishment of service which arises from the first part of the clause, an opportunity is given to the employee to offer an explanation and if the said explanation is treated as satisfactory by the management, 271 the inference of termination of contract of service is rebutted and the leave in question is treated as leave without pay or dearness allowance.
This latter clause obviously postulates that if the explanation offered by the employee is not found to be satisfactory by the management, the inference arising from the first part prevails and the employee shall be deemed to have terminated his contract of service with the result that the relationship of master and servant between the parties would be held to have come to an end.
With the remaining part of the said Standing Order we are not concerned in this appeal.
It is true that absence without leave for eight consecutive days is also treated as misconduct under cl.
13(f) of the Standing Orders.
The said clause refers to the said absence and habitual absence without leave.
In other words, the position under the Standing Orders appears to be that absence without leave for more than eight consecutive days can give rise to the termination of the contract of service either under Standing Order 8(ii) or may lead to the penalties awardable for misconduct after due enquiry is held as required by the relevant Standing Order.
The fact that the same conduct is dealt with in two different Standing Orders cannot affect the applicability of S.O. 8(ii) to the present case.
It is not as if the appellant is bound to treat Venkatiah 's absence as constituting misconduct under S.O. 13(f) and proceed to hold an enquiry against him before terminating his services.
Dismissal for misconduct as defined under S.O. 13 may perhaps have different and more serious consequences from the termination of service resulting from S.O. 8(ii).
However that may be, if S.O. 8(ii) is applicable, it would be no answer to the appellant 's case under S.O. 8(ii) to say that S.O. 13(f) is attracted.
This position is not seriously in dispute.
The High Court appears to have taken the view that the appellant did not act fairly in rejecting Venkatiah 's case that he was ill and in refusing to act upon the certificate produced by him in support of his case.
It is necessary, in the first instance, to examine the correctness of this con clusion.
As we have already indicated, the Civil Assistant Surgeon no doubt certified on March 7, 1957 that Venkatiah had suffered from chronic dysentery from janu 272 ary 15 to March 7, 1957, and he added that he was then completely free from the ailments and was in a fit state of health to join duty on the 9th March 1957.
Incidentally, the certificate has been granted at the end of the treatment and specifically avers that he was fit enough to join on March 9, 1957.
When Venkatiah was examined by the Medical Officer of the appellant on the 22nd March 1957, thr Medical Officer was unable to confirm that he was ill for a period of nearly two months.
The High Court has criticised this certificate as being vague.
In our opinion, by this certificate the Medical Officer politely suggests that having regard to the opinion which he formed on examining Venkatiah on March 22, he was unable to confirm the certificate issued by the Civil Assistant Surgeon.
What struck the High Court as vague in the certificate is obviously the result of the desire of the appellant 's Medi cal Officer to observe professional courtesy in dealing with the certificate on which Venkatiah relied.
Apart from I this aspect, however, we do not see how it was open to the High Court to consider the propriety of the conclusion reached by the Labour Court on this point.
We have already noticed that the Labour Court has specifically repelled the criticism made by the respondent against the conduct of the appellant 's Medical Officer and has held that if the matter had fallen to be considered only in the light of Standing Order 8(ii), the appellant would have succeeded.
That being so, it is not easy to see how the respondent 's grievance against the said finding of the Labour Court could have been properly upheld by the High Court in exercising its writ jurisdiction under article 226 of the Constitution.
Whether or not the appellant should have accepted the certificate of the Civil Assistant Surgeon was primarily for the appellant to consider.
It is significant that there is no allegation about mala fides in this case, and so, we do not think that the High Court was justified in making a finding against the appellant on the ground that the appellant had not discharged its obligation under the Standing Orders of properly considering the explanation of Venkatiah in regard to his absence.
The High Court was apparently aware of this position and so, it has stated in the course of its judgment that it would rest its decision on what it regarded to be the effect of 273 section 73 "even assuming that the discharge of the worker in the instant case was automatic by virtue of the operation of Standing Order 8(ii), and so, it is to this part of the case that we must now turn.
Before doing so, however, we may refer to the argument urged before us by Mr. Dolia for the respondent that it would be anomalous if it is open to the appellant to reject Venkatiah 's case that he was ill during the relevant period when the said case had been accepted by the Corporation when it gave him relief under section 73 and the regulations framed under the Act.
Mr. Dolia relies on the fact that Venkatiah satisfied the relevant authorities administering the provisions of the Act that he was ill during the relevant period, and had, in fact, been given assistance on that basis, so that for the purposes of the Act he is held to be ill during that period, and yet the appellant for the purpose of Standing Order 8(ii) holds that Venkatiah was not ill.
during the same period.
It could not be the intention of the legislature to allow such a glaring anomaly to prevail, says Mr. Dolia, and so, he suggested that the appellant was bound to hold that Venkatiah was ill during the relevant period, having regard to the fact that his illness had been accepted by the relevant authorities under the Act.
This argument is no doubt, prima facie, attractive, but before accepting it, it would be necessary to find out whether there is any specific provision in the Act which compels the appellant to accept the view taken by the relevant authority under the Act when it decided to give assistance to Venkatiah.
Section 73 of the Act reads asunder : "Employer not to dismiss or punish employee during period of sickness, etc. (1)No employer shall dismiss, discharge, or reduce or otherwise punish an employee during the period the employee is in receipt of sickness benefit or maternity benefit, nor shall he, except as provided under the regulations, dismiss, discharge or reduce or otherwise punish an employee during the period he is in receipt of disablement benefit for temporary disablement or is under medical treatment for sickness or is absent from work as a result of illness duly certified in accordance with the regulations to arise out 274 of the pregnancy or confinement rendering the employee unfit for work.
(2)No notice of dismissal or discharge or reduction given to an employee during the period specified in sub section (1) shall be valid or operative." Mr. Dolia contends that since this Act has been passed for conferring certain benefits on employees in case of sickness, maternity and employment injury, it is necessary that the operative provisions of the Act should receive a liberal and beneficent construction from the court.
It is a piece of social legislation intended to confer specified benefits on workmen to whom it applies, and so, it would be inappropriate to attempt to construe the relevant provisions in a technical or a narrow sense.
This position cannot be disputed.
But in dealing with the plea raised by Mr. Dolia that the section should be liberally construed, we cannot overlook the fact that the liberal construction must ultimately flow from the words used in the section.
If the words used in the section are capable of two constructions one of which is shown patently to assist the achievement of the object of the Act, courts would be justified in preferring that construction to the other which may not be able to further the object of the Act.
But, on the other hand, if the words used in the section are reasonably capable of only one construction and are clearly intractable in regard to the construction for which Mr. Dolia contends, the doctrine of liberal construction can be of no assistance.
Mr. Dolia 's suggestion is that the general policy of section 73 is to prevent dismissal, discharge, reduction or other punishment being imposed or,.
an employee who is ill if it is shown that he has received sickness benefit.
There are other cases mentioned in this section to which it is not necessary to refer for the purpose of dealing with Mr. Dolia 's argument.
According to Mr. Dolia, the operation of section 73 is confined to cases of illness for instance, and it prohibits the imposition of any penalty wherever it is shown that in respect of the illness in question, the employee has received sickness benefit.
In the present case, the employee has received sickness benefit, and so, for the said sickness, no penalty can be imposed on him.
That, in brief, is the contention which Mr. Dolia has pressed 275 before us.
On the other hand, Mr. Sastri argues that the words used in the section are capable of only one construction.
The section merely prohibits any punitive action being taken against the employee during the period of his illness, and he urges that the prohibition is not confined to punitive action in respect of illness alone but extends to punitive action in respect of all kinds of misconduct whatever.
What the section says is, during the period that the employee is ill, no action can be taken against him whatever may be the cause for the said action.
Mr. Sastri also contended that the clause "during the period the employee is in receipt of sickness benefit" can cover the period during which the sickness benefit is actually received by him, and so, he suggests that since during the period of Venkatiah 's illness itself no sickness benefit had been received by him, section 73(i) is wholly inapplicable.
We are not impressed by this argument.
In our opinion, the clause "during the period the employee is in receipt of sickness benefit" refers to the period of his actual illness and requires that for the said period of illness, sickness benefit should have been received by him.
It is quite clear that in a large majority of cases, sickness benefit would be applied for and received by the employee after his sickness is over, and so, to hold that the period there referred to is the period during which the employee must be ill and must also receive sickness benefit, would make the section wholly unworkable.
That is why we do not think that the limitation which Mr. Sastri seeks to introduce by suggesting that sickness benefit must be paid during the course of illness itself, can be read into the section.
Even so, what is the effect of section 73(1) ? In considering this question, it would be useful to take into account the provisions of sub section
This sub section provides that no notice given to an employee during the period specified in sub section
(i) shall be valid or operative.
Thus, it is clear that the giving of the notice during the specified period makes it invalid, and it is remarkable that the notice is not in regard to dismissal, discharge or reduction in respect of sickness alone, but it includes all such notices issued, whatever may be the misconduct justifying them.
Thus, 276 there can be no doubt that the punitive action which is prohibited by section 73(1) is not confirmed to punitive action proceeding on the basis of absence owing to sickness; it is punitive action proceeding on the basis of all kinds of misconduct which justifies the imposition of the penalty in question.
What section 73(1) prohibits is such punitive action and it limits the extent of the said prohibition to the period during which the employee is ill.
We are free to confess that the clause is not very happily worded, but it seems to us that the plain object of the clause is to put a sort of a moratorium against 211 punitive actions during the pendency of the employee 's illness.
If the employee is ill and if it appears that he has received sickness benefit for such illness, during that period of illness no punitive action can be taken against him.
That appears to us to be the effect of that part of section 73(1) with which we arc concerned in the present appeal.
If that be so, it is difficult to invoke section 73 against the appellant, because the termination of Venkatiah 's services has not taken place during the period of his illness for which he received sickness benefit.
There is another aspect of this question to which it is necessary to refer.
Section 73(1) prohibits the employer from dismissing, discharging, reducing or otherwise puni shing an employee.
This seems to suggest that what is prohibited is some positive act on the part of the employer, such as an order passed by him either dismissing, discharg ing or reducing or punishing the employee.
Where ter mination of the employee 's services follows automatically either from a contract or from a Standing Order by virtue of the employee 's absence without leave for the specified period, such termination is not the result of any positive act or order on the part of the employer, and so to such a termination the prohibition contained in section 73(1) would be inapplicable.
Mr. Dolia no doubt contended that the word 'discharge ' occurring in section 73(1) should be liberally construed and he argued that termination of service even under Standing Order 8(ii) should be held to be a discharge under section 73(1).
We are not prepared to accept this argument.
In considering the question about the true denotation of the word "discharge" in section 73(1), it is relevant to bear in mind the provisions of section 85(d) of the Act.
277 Section 85(d) provides that if any person in contravention of section 73 or any regulation, dismisses, discharges, reduces or otherwise punishes an employee, he shall be punishable with imprisonment which may extend to three months or with fine which may extend to five hundred rupees, or with both.
In other words, the contravention of section 73(1) is made penal bys.
85(d), and so, it Would not be reasonable to put the widest possible denotation on the word "discharge" ins.
73(1).
The word "discharge" in section 73(1) must,therefore, in the context, be taken to be a discharge which is the result of a decision of the employer embodied in an order passed by him.
It may conceivably also include the case of a discharge where discharge is provided for by a Standing.
Order.
In such a case, it may be said that the discharge flowing from the Standing Order is, in substance, discharge brought about by the employer with the assistance of the Standing Order.
Even so, it cannot cover the case of abandonment of service by the employee which is inferred under Standing, Order 8(ii).
Therefore, we do not think the High Court was justified in taking the view that the termination of Venkatiah 's services under S.O. 8(ii) to which the appellant has given effect by refusing to take him back, contravenes the provisions of section 73(1).
Mr. Dolia argued that on the appellant 's construction 73(1) would afford very unsatisfactory and poor protection to the employees.
If all that section 73(1) does is to prevent any punitive action being taken against the employee during the period that he is ill, there is not much of protection given to him at all, says Mr. Dolia.
There is no doubt some force in this argument: but as we have already observed, the words used in section 73(1) read with subs.
(2) cannot reasonably lead to the construction for which, Mr. Dolia contends.
It would, we think, be unreasonable, if not illegitimate, to construe the relevant section merely on the hypothesis that the legislature intended to provide a larger protection to the employees when the said hypothesis cannot be worked out in the light of the words used by the statute.
By virtue of the power conferred on the State Government by section 96 to make rules, certain regulations had been framed under the Act in 1950.
Chapter III of these 278 Regulations deals with the benefit claims.
Regulations 53 to 86 in this Chapter are concerned with the certification and claims for sickness and temporary disablement.
Regu lation 54 provides for the persons competent to issue medi cal certificate and Regulation 55 required that the Medical Certificate should be filled in the prescribed form.
Regu lation 57 deals with the Medical Certificate on first exa mination and Regulation 58 refers to the final Medical Certificate.
Regulation 63 prescribes the form of claim for sickness or temporary disablement.
An insured person intending to claim sickness benefit has to submit the said form to the appropriate Local Office by post or otherwise.
Regulation 64 lays down that if such a claimant fails to submit to the appropriate Local Office by post or otherwise the first medical certificate or any subsequent medical certificate within the period therein prescribed, he shall not be eligible for that benefit in respect of the period indicated thereunder.
It is in the light of these regulations that Regulation 53 has to be considered.
This regulation provides that every insured person claiming sickness benefit shall furnish evidence of sickness in respect of the days of his sickness by means of a medical certificate given by an Insurance Medical Officer in accordance with the Regulations in the appropriate form.
There is, however, a proviso to Regulation 53 which says that the Corporation may accept any other evidence of sickness or temporary disablement if in its opinion the circumstances of any particular case so justify.
In the present case, the Regional Director has accepted the Civil Assistant Surge 'on 's certificate under the proviso to regulation 53 when he directed that cash benefit may be paid to Venkatiah under section 73(1).
Having regard to these Regulations, it is difficult to see how the view taken by the Regional Directors about the effect of the certificate issued by the Civil Assistant Surgeon can be said to be binding on the appellant.
There is no provision in the Act or the Regulations, to which section 73(1) refers by which it could be contended that once the illness of an insured employee is accepted by the appropriate authority under the Act, it must automatically be accepted by the employer in dealing with the said employee 's case under the Standing Orders.
Therefore, the argument that inconsistent results may follow if two views 279 are allowed to be taken about the illness of a given em ployee, does not help the appellant.
Besides, as we have already indicated, this argument has hardly any relevance in view of the construction which we are inclined to put on section 73(1) of the Act.
In view of our construction of the said section, Mr. Dolia 's argument that there is inconsistency between the said section and Standing Order 8(ii) also has no validity.
Before parting with this case, we ought to add that at the very outset, Mr. Sastri for the appellant made it clear to us that the appellant was fighting this appeal not so much to resist the order of reinstatement passed in favour of Venkatiah as to get a decision from this Court about the true scope and effect of section 73(1) of the Act.
In other words, he argued that this case was fought as a test case on the question of the construction of the said section.
Therefore, when we suggested to Mr. Sastri that the appel lant who is a very big prosperous employer should not resist the reinstatement of a single employee whose case has been brought to this Court, he assured us that he would recommend to the employer to take Venkatiah back on the terms prescribed by the Labour Court in the first instance in this case.
In the result, the appeal is allowed, the order passed by the Division Bench of the Madras, High Court is set aside and that of the Single Judge restored.
There would be no order as to costs.
Appeal allowed.

Output:
The respondent Venkatiah went on leave for six days and did not join duty on the expiry of the leave period but remained absent without sending to the appellant any communication for extending his leave.
Later, he sent 2 letter to the appellant accompanied by a medical certificate issued by a Civil Assistant Surgeon in respect of his illness for a period of nearly two months.
The Medical Officer of the appellant was unable to confirm that he was ailing for a period of two months.
Finding the explanation for his absence unsatisfactory the appellant refused to take him back in its employment.
Meanwhile he had applied to the Regional Director of the Employees ' State Insurance Corporation and obtained cash sickness benefit for the period covered by the Medical Certificate issued by the Civil Assistant Surgeon.
On the appellant 's refusal to take him back in its employment, the respondent union, referred his case for adjudication 18 2 section C. India/64 266 to the Labour Court and the management of the appellant was directed to reinstate him.
The appellant then moved a writ petition in the High Court and it was allowed by the learned single Judge.
The respondent then preferred a Letters Patent Appeal before a Division Bench of the High ' Court.
The appeal was allowed by the Division Bench and the award passed by the Labour Court was restored.
In his appeal against the said decision the appellant 's main contention in this Court was that the case of Venkatiah fell squarely within the provisions of Standing Order 8(ii) and the High Court was wrong in holding that the decision of the appellant in refusing to condone the absence of Venkatiah was either unfair or improper, or that it contravened the provisions of section 73 of the .
The respondent mainly contended that in the present case the employee received sickness benefit, and so, for the said sickness, no penalty could be imposed on him.
Held : (i) Standing Order 8(ii) was applicable to the present case and the fact that the same conduct was dealt with in two different standing orders, could not affect the applicability of Standing Order 8(ii) to the present case.
(ii) Whether or not the appellant should have accepted the certificate of the Civil Assistant Surgeon was primarily for the appellant to consider; as there was no allegation about mala fides in this case, it was not open to the High Court, in exercise of its writ jurisdiction, to consider the propriety of the conclusion reached by the Labour Court on this point.
(iii) On a proper construction of section 73(1) read with sub section
(2), it was impossible to invoke section 73 against the appellant, because the termination of Venkatiah 's services had not taken place during the period of his illness for which he received sickness benefit; the High Court was not justified in taking the view that the termination of Venkatiah 's services under S.O. 8(ii) contravened the pro visions of section 73(1).
(iv) The view taken by the Regional Director about the effect of the Civil Assistant Surgeon 's certificate under the proviso to regulation 53 could not be said to be binding on the appellant and in view of the construction put on section 73(1), there was no inconsistency between the said section and Standing Order 8(ii).


Input:
minal Appeal No. 191 of 1967.
Appeal by special leave from the judgment and order dated March 14, 1967 of the Rajasthan High Court in Criminal Appeal No. 720 of 1965.
B. D. Sharma, for the appellant.
The respondent did not appear.
The Judgment of the Court was delivered by Sikri, J.
Hari Ram, respondent, filed a complaint against Lala Ram, appellant, alleging that Lala Ram had attacked him 899 with a Kassi on June 10, 1964, at about 6 p.m.
Poonaram, who was standing there prevented the blow from falling on Hari Ram by receiving it on his hand.
The respondent, however, made a second attack and inflicted an injury on the left shoulder of Hari Ram.
Hari Ram and Poonaram got themselves examined by the Civil Assistant Surgeon of the city and the injury report was submitted alongwith the complaint.
The learned Magistrate acquitted the accused.
Hari Ram filed an application under section 417(3) of the Criminal Procedure Code for leave to appeal against the order of the Magistrate.
Leave was granted by the High Court, and thereupon Hari Ram filed the appeal.
The High Court accepted the appeal and convicted the appellant, Lala Ram, under section 324, I.P.C., and sentenced him to four months ' rigorous imprisonment.
The attention of the High Court was not drawn to the Proba tion of Offenders Act, 1958, during the hearing of the a peal but subsequent to the delivery of the judgment an application was filed under section 561 A, Cr.
P.C., read with sections 3, 4 and 6 of the Probation of Offenders Act.
It was alleged in the application that the appellant was 20 years old and the High Court should have given him the benefit of the Probation of the Offenders Act.
The High Court did not accede to this application.
The appellant having obtained special leave from this Court, the appeal is now before us.
The main contention of law which arises before us is whether the appeal to the High Court was filed within limitation.
The application for leave to appeal to the High Court under section 417 (3) against the order of acquittal of the Magistrate, dated August 31, 1965, was filed on November 1, 1965.
It was claimed by the applicant that two days were necessary for obtaining the certified copy of the order of the Magistrate and the applicant was entitled to deduct these two days taken for obtaining the certified copy of the order of the Magistrate.
There is no doubt that the application would be in time, if these two days are deducted.
But the learned counsel for the appellant contends that section 12(2) of the Indian Limitation Act is not attracted to applications under section 417(3), Cr.
P.C. Section 417(3) and (4) read as follows "417.
(1) Subject to the provisions of sub section (5), the, State Government may, in any ease, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a, High Court.
(3) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on L5SupCI/70 12 900 an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
(4) No application under sub section (3) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal.
It is contended that the period of 60 days mentioned in s.417(4) is not a period of limitation within the meaning of s.12(2) of the Limitation Act.
Section 12(2) of the Limitation Act reads as follows : "12(2) In computing the period of limitation for an ,appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the, time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded.
" The learned counsel says that what s.417(4) provides is a prohibition and it bars the jurisdiction of the High Court to deal with the application if a period of 60 days has expired from the date of the order of acquittal.
In our opinion there is no force in these contentions.
In Kaushalya Rani vs Gopal Singh(1) this Court, while dealing with the question whether s.5 of the Limitation Act applies to applications under s.417(3) described this period of 60 days ment ioned in s.417(3) as follows: "In that sense, this rule of 60 days bar is a special law, that is to say, a rule of limitation which is specially provided for in the Code itself, which does not ordinarily provide for a period of limitation for appeals or applications.
" This Court further observed "Once it is held that the special rule of limitation laid down in sub section
(4) of section 417 of the Co de is a especial law ' of limitation, governing appeals by private prosecutors, there is no difficulty in coming to the con clusion that s.5 of the Limitation Act is wholly out of the way, in view of s.29 (2) (b) of the Limitation Act." (1) ; 987.
901 This Court approved the judgment of the Full Bench of the Bombay High Court in Anjanabai vs Yashwantrao Dauletrao Dudhe(l).
The Full Bench of the Bombay High Court had observed in Anjanabai 's case "Sub section (4) prescribes a period of limitation for such an application.
It states that no such application shall be entertained by the High Court after the expiry of sixty days from the date of the order of acquittal.
This period of limitation is prescribed not for all appeals under the Criminal Procedure Code, or even for all appeals from the orders of acquittal.
It is prescribed only for applications for special leave to appeal from orders of acquittal.
It is therefore a special provision for a special subject and is consequently a special law within the meaning of s.29(2) of the Limitation Act.
" It is quite clear that the Full Bench of the Bombay High Court and this Court proceeded on the assumption that s.417(4) of the Criminal Procedure Code prescribes a period of limitation.
The learned counsel, however, contends that there was no discussion of this aspect.
Be that as it may, it seems to us that s.417 (4) itself prescribes a period of limitation for an application to be made under s.417(3).
It was not necessary for the legislature to have amended the Limitation Act and to have inserted an article dealing with applications under s.417(3), Cr.
P.C.; it was open to it to prescribe a period of limitation in the Code itself.
The learned counsel also suggests that the word "entertain" which occurs in s.417 (4) means "to deal with or hear" and in this connection he relies on the judgment of this Court in Lakshmi Rattan Engineering Works vs Asstt.
Commissioner Sales Tax (2).
It seems to us that in this context "entertain" means "file or received by the Court" and it has no reference to the actual hearing of the application for leave to appeal; otherwise the result would be that in many cases applications for leave to appeal would be barred because the applications have not been put up for hearing before the High Court within 60 days of the order of acquittal.
In the result we hold that the application under s.417(3) to the High Court was within time.
The learned counsel then contends that the High Court should not have interfered with the order of acquittal passed by the Magistrate.
He has taken us through the evidence of Poonaram who was injured and the statement of P.W. 3, Ananda, who was present and who seems to be an independent witness.
We agree (1) I.L.R. [1961]Bom.135, '137.
(2) ; 902 with the High Court that the Magistrate was not entitled to reject the evidence of the eye witnessess.
No reason has been shown to us why we should interfere with the finding of fact arrived at by the High Court.
The learned counsel further contends that no offence was committed because the accused had a right of private defence of property.
Assuming that he had a right of private defence of property he had ample opportunity of having recourse to the authorities and there was no need for the appellant to have taken the law into his own hands.
The only question that remains now is the question whether the benefit of s.6 of the Probation of Offenders Act should be extended to the appellant.
In spite of opportunity being given no good proof has been furnished to establish that the appellant was at the relevant time under the age of 21 years.
For the aforesaid reasons the appeal fails and is dismissed.
R.K.P.S. Appeal dismissed.

Output:
An application for leave to appeal to the High Court under section 417(3) Code of Criminal Procedure against an order of acquittal by a Magistrate dated August 31, 1965 was filed on November 1, 1965.
It was claimed that two days were necessary for obtaining the certified copy of the order of the Magistrate.
The application would be in time if these two days were deducted.
The High Court accepted the appeal and convicted the appellant.
In appeal to this Court against his conviction the appellant contended that the period of 60 days mentioned in section 417(4) was not a period of limitation within the meaning of section 12 of the Limitation Act and that the sub section barred the jurisdiction of the High Court to deal with the application if a period of 60 days had expired from the date of the order of acquittal.
HELD : The application under section 417(3) to the High Court was within time.
Section 417(4) itself prescribes a period of limitation; it was open to the legislature to prescribe a period of limitation in the code itself.
In the context of section 417(4) the word "entertain" means "file or receive by the court" and it has no reference to the actual hearing of the application for leave to appeal; otherwise the result would be that in many cases applications for leave to appeal would be barred because the applications have not been put up for hearing before the High Court within sixty days of the order of acquittal.
[901 D F] Kaushalya Rani vs Gopal Singh, , 987, Anjanabai vs Yeshwantrao Daplatrao Dudhe, I.L.R. (1961) Bom.
135, 137 and Lakshmi Rattan Engineering Works vs Asstt.
Commissioner Sales Tax; , , referred to.


Input:
iminal Appeal No.112 of 1965.
Appeal by special leave from the jurisdiction and order dated April 29, 1965 of the Allahabad High Court in Criminal Misc. 'Contempt Case No. 43 of 1965.
A. section R. Chari, M. K. Ramamurthi, Vineet Kumar and Shyamala Pappu, for the appellants.
O. P. Rana, for respondent No. 1.
J. P. Goyal, V. C. Prasar and section P. Singh for respondent No. 2.
The Judgment of the Court was delivered by Sikri, J.
This appeal by special leave is directed against the judgment of the Allahabad High Court adjudging the five appellants guilty of contempt of court and sentencing each of them to pay a fine of Rs. 1,000/ and further ordering that in case of default they shall undergo simple imprisonment for two weeks.
The High Court held that the five appellants had disobeyed an order of stay passed by it staying proceedings pending before the Nyaya Panchayat, Jokha Khas, District Deoria.
The relevant facts are these.
On September 2, 1963, Yashoda, son of Raj Kumar, filed a complaint before the Nyaya Panchayat, Jokha Khas, against Jagdeo, Mahabir and Laxmi alleging that he had been abused and be laboured and his property worth Rs. 40/ damaged.
On September 10, 1963, the Nyaya Panchayat assembled and evidence was led before it.
The case was adjourned to December 25, 1963.
On October 11, 1963, Mahabir, accused, made an application under section 85 of the U.P. Panchayat Raj Act, 1947, to S.D.M., Deoria, to transfer the proceedings on the ground that the complainant Yashoda was father of Bunna Prasad, Sarpanch of Nyaya Panchayat, Jokha Khas.
On November 28, 1963, the S.D.M. rejected this application.
On December 13, 1963, a notice was issued to the five members of the Panchayat to assemble on December 25, 1963, and hear the case.
On December 20, 1963, Mahabir moved an application under article 227 of the Constitution challenging the order of the S.D.M., dated November 28, 1963, and on the same day the High Court admitted the application and stayed further proceedings before the Nyaya Panchayat.
An urgent copy of the order was applied for and obtained on that very day and the counsel sent a telegram in the following words "Allahabad He 20 Baldeopd cashier Trust Sdr GR Mahabir application admitted stay granted Banwarilal.
" 117 It is alleged on the side of the applicant, Mahabir, that immediately after the receipt of the telegram an application accompanied by an affidavit and the telegram of his counsel in the High Court was presented before the Nyaya Panchayat with the prayer to stay further proceedings but the Sarpanch refused to take it.
This fact was denied and the High Court seems not to have relied on this fact in its judgment.
It seems to us that it is not proved on the evidence here that any such application was made before the Nyaya Panchayat.
No application dated December 21, 1963, which was not accepted by the Nyaya Panchayat, has been produced.
On December 23, 1963, Mahabir submitted an application in the Court of Shri R. Singh, S.D.M., Deoria, alleging that "writ petition has been admitted and a stay order has been issued.
But notwithstanding my informing the Panchayat Adalat of that, I am not getting any hearing there, and when an application is made there, it is not entertained." He prayed that the Panchayat Adalat be directed to postpone proceedings pending the receipt of the stay order.
He produced the telegram received from the Advocate before the S.D.M.
In the affidavit accompanying the application, however, no mention was made about Mahabir having informed the Panchayat Adalat of the stay order or the fact that the order and the application was not being entertained by the Adalat.
It happened that the S.D.M. was absent on December 23, 1963, and papers were put up before Shri section K. Srivas tava, Additional Sub Divisional Magistrate, who issued the order "Put up with records".
Apparently he did not take any further action till December 26, 1963.
But as the notice against Shri Srivastava has been discharged by the High Court, we need not give any further details about his various orders, On December 25, 1963, the Nyaya Panchayat met and proceeded to hear the case.
The order sheet reads thus : "Put up today the 25th December, 1963.
The complainant and the accused are present.
The statements of the complainant and his witnesses, Bhabhuti and Damri, are recorded.
The accused refused to make statements and put down their signatures.
Today, the 25th December, 1963, Mahabir has made an applica tion to the Court and signed it before it.
Hence judgment shall be given on 25 12 63.
" This order was signed by three Panchas, Phagu Parsad, Jagat Dubey and Badri Yadav.
On the same day a final order was made holding the accused guilty and imposing a fine of Rs. 3/ each on accused Nos. 1 and 3, and Rs. 9/ on accused No. 2.
The application of Mahabir, referred to in the order, reads thus: 118 .lm15
Sir, It is submitted that I have filed a writ petition in the above case, in the High Court.
It has been admitted by the High Court which has stayed proceedings also in this case.
It is, therefore, prayed that the proceedings in this case may be stayed." A document purporting to be an affidavit was also attached, in which it was stated "I make oath and say that in the above case I have filed a writ petition in the High Court, that it has been admitted, and that proceedings in the case have been stayed by the High Court.
" We looked at this so called affidavit and found.
that it has not been sworn to before any person authorised to administer oaths.
On May 21, 1964, Mahabir filed an application under sections 4 and 5 of the , against the five appellants and section K. Srivastava, A.S.D.M.
The main allegation, apart from reciting the facts which we have already detailed above, was that "in spite of the knowledge of the interim stay dated 20 12 63 passed by the Hon 'ble High Court the Sarpanch, the Opposite Party No. 1 and the members of the Bench, Opposite Parties Nos. 2 to 5 disobeyed the order of the Hon 'ble High Court and disposed of the case on 25 12 63 and thus they committed contempt of the Hon 'ble High Court.
" Affidavits were filed in the High Court by Baldeo Prasad, pairokar of Mahabir, Burma Prasad, the Sarpanch, and Mahabir, and statements of Phagu Prasad and Bunna Prasad were recorded on oath.
Bunna Prasad, in his affidavit, stated that as the Nyaya Panchayat was not satisfied for want of evidence by way of proper affidavit etc.
, the Nyaya Panchayats proceeded with the case.
Phagu Prasad.
in his statement, stated "As the paper of Mahabir 's application and affidavit was not good, we had asked him to get them written on a proper paper obtained from the Tehsil.
We had also told him to get the affidavit verified before some Tehsil authority.
We had told Mahabir as above before we had read the application and affidavit presented before the Nyaya Panchayat.
Mahabir told us that he is not prepared to go to Tehsil, but is presenting before the Panchayat whatever he has got in his possession." Phagu Prasad further stated that "no other affidavit had ever been filed before us, but we knew that in the law courts the 119 affidavits,which are filed, are verified by some authority."He further added that "the reason why we did not believe theaffidavit of Mahabir was that it did not contain any date of theHigh Court 's stay order." Bunna Prasad, in his statement, stated that he had told Mahabir to bring the affidavit on a good quality paper of full size, and Mahabir thereupon told him that he would present whatever he had.
According to him, the Panchas did not tell Mahabir that his affidavit was not proper; they, however, told him to get it verified in Tehsil and that it should be duly sealed.
The High Court, on examination of the evidence, came to the conclusion that it was the Sarpanch who bad initially declared that the affidavit of the applicant was not proper and that the matter should file a proper affidavit in support of his allegations, though the Sarpanch had admitted in his deposition that he had to authority to tell Mahabir that his affidavit was not proper.
It appeared to the High Court that "the Sarpanch first wanted to avoid the petitioner 's affidavit being brought on the record by declaring that it was not proper because it did not fully evidence the fact that the High Court had passed an order staying proceedings before the Nyaya Panchayat." The High Court further held that "the Nyaya Panchas faithfully accepted the objections raised by the Sarpanch and dittoed him about the impropriety of the petitioner 's affidavit and inadequacy of the evidence contained therein regarding the stay order alleged to have been.
passed by the High Court.
" The High Court disbelieved the explanation of the Panchas given before it because no mention of these was made in the order sheet dated December 25, 1963.
The High Court held : "There was no reasonable ground for the Panchas to have doubted the averments made in the application and affidavit of Mahabir that the High Court had stayed further proceedings before the Panchayat, nor is there any thing in the order sheet to show that the Panchas did not believe the contents of the application, and affidavit of Mahabir.
However, if they wanted to ascertain the matter, they should have at best stayed the proceedings for a short while and should have asked the applicant to produce a certified copy of the stay order.
In the alternative, they should have verified from the Sub Divi sional Magistrate whether Mahabir had really filed an application and affidavit before him along with the original telegram received from his counsel at Allahabad saying that the High Court had already stayed the proceedings before the Nyaya Panchayat.
But the Panchas did nothing of the kind.
The action of the Nyaya Panchas in not doing so was obviously not bona fide and 120 amounts to wilful disobedience of the High Court 's order.
The learned counsel for the appellants, Mr. Chari, says that no contempt of court has been established because a Court is entitled not to act on an application which is not accompanied by an affidavit properly sworn to or a certified copy of the order He urges that the Nyaya Panchayats exercised judicial powers and, even if the Panchas erred in not staying proceedings, before finding them guilty of contempt of court it should be definitely proved that the order was passed deliberately to by pass the order of the High Court.
This Court quoted with approval the following passage from Oswald 's Contempt of Court, in Hoshiar Singh vs Gurbachan.
Singh(1): "The judgment or order should be served on the party personally, except in the following cases : (1) prohibitive orders, the drawing up of which is not completed;. .
In order to justify committal for breach of a prohibitive order it is not necessary that the order should have been served upon the party against whom it has been granted, if it be proved that he had notice of the order aliunde, as by telegram, or newspaper report, or otherwise, and knew that it was intended to be enforced, or if he consented to the order, or if he was present in Court when the order Was pronounced, or *hen the motion was made, although he left before the order was pronounced.
" We need not consider whether it makes any differnce in law if the order has been drawn up.
We will for the purpose of this case assume that it does not make any difference.
It is also clear that in such matters those who assert that a person had knowledge of the order must prove this fact beyond all reasonable doubt.
If there is any doubt, the benefit ought to be given to the person charged with contempt of court.
If a person bona fide comes to the conclusion on the material placed before him that the source of information is not authentic he cannot be held guilty of contempt of court for disobeying the order.
The question then arises whether the Sarpanch and the Pan chas had knowledge of the existence of the order of the High Court dated December 20, 1963.
The only material before them was the application dated December 25, 1963, which was not supported by any affidavit sworn to before a person authorised to (1) [1962] Supp. 3 S.C.R. 127,138.
121 administer oaths.
Further, the application did not contain the .date of the order; even a copy of the telegram was not attached to the application; and the application seems to have been made after the proceedings on that date had commenced and evidence taken.
We are unable to appreciate how on this material the bona fides of the Panchas can be doubted if they refused to accept the mere statement of the party that the High Court had stayed proceedings before them.
It seems to us that the High Court did not appreciate that the so called affidavit which was filed before the Panchas was in fact not an affidavit at all.
it had not been sworn to before any person authorised to administer oaths.
It was no part of the duty of the Panchas to enquire from the S.D.M. about the filing of the application before him.
At any rate, he has apparently no jurisdiction to stay proceedings before the Nyaya Panchayats when no Proceeding is pending before him.
It is true that in certain cases proceedings can be adjourned to enable the parties to file better proof, but a judicial officer is not bound to do so and, if he bona fide does not in his discretion adjourn proceedings, it cannot be said that he has committed contempt of court.
It must also be borne in mind that Panchas are not well versed in law and procedure and the records maintained by them should not be judged in the same manner as that of ordinary courts.
With respect, the High Court should not have drawn an adverse inference from the fact that the reasons for not accepting the prayer for stay were not recorded.
Contempt of court is a serious matter and a High Court should be chary of finding a judicial officer guilty of contempt of court for disobeying its orders unless there is unimpeachable evidence that the judicial officer had knowledge of the order of the High Court.
In our opinion, there is no such evidence in this case.
The learned counsel for the State contends that we should not reappreciate the facts, but, with respects, it seems to us that the High Court, while dealing with the evidence, has not kept in mind the principles which we have mentioned above.
In the result we allow the appeal and set aside the judgment and order of the High Court.
R.K.P.S. Appeal allowed.

Output:
M, an accused person in certain proceedings pending before the Nyaya Panchayat filed a petition under article 227 in the High Court and obtained a stay of the proceedings on December 20, 1963 .
Thereafter when the Panchayat met to proceed with the matter, he made an application supported by a document purporting to be an affidavit stating that the High Court had admitted his writ petition and had stayed further proceedings before the Panchayat; and that therefore nothing further should be done in the matter.
However, the, Panchayat did not allow his application and proceeded (to hold M and others guilty and imposing fines on them.
M, thereafter filed an application under sections 4 and 5 of the , alleging contempt of the High Court by the Panchayat.
An affidavit filed before the High Court by the Sarpanch stated that the document filed by M, by way of an affidavit in support of his application had not been verified by any proper authority and for this and other reasons the Panchayat did not believe that the High Court had stayed the proceedings.
The High Court held the members of the Panchayat guilty of contempt and observed that if they wanted to ascertain the matter, they should have at best stayed the proceedings for a short while and asked the applicant to produce a certified copy of the stay order; in not doing so, the Panchas had obviously not acted bona fide and their action amounted to, wilful disobedience of the High Court 's order.
On appeal to this Court, HELD : The appeal must be allowed and the judgment and order of the High Court set aside.
The only material before the Panchayat was the application dated December 25.
1963, which was not supported by 'any affidavit sworn to before a person authorised to administer oaths.
Further, the application did not contain the date of the order; even a copy of the telegram stated to have been sent by M 's advocate in the High Court was not attached to the application.
On this material the bona fides of the Panchas could not be doubted if they refused to accept the mere statement of the party that the High Court had stayed the proceedings before them.
In such matters those who assert that a person had knowledge of the order must prove this fact beyond all reasonable doubt.
If there is any doubt.
the benefit, ought to be given to the person charged with contempt of court.[120 F H; 121 A B] It is true that in certain cases proceedings can be adjourned to enable the parties to file better proof, but a judicial officer is not bound (to do so and, if the bona fide does not in his discretion adjourn proceedings, it cannot be said that he has committed contempt of court.
[121 C D]


Input:
Civil Appeal No. 806 of 1982.
From the Judgment and order dated 27 7 1981 of the Industrial Tribunal (III) U.P. in Adjudication Case No. 15 of 1977.
114 M. K. Ramamurthy, Jitendra Sharma and P. Gaur for the Appellants G.B. Pai, H. K. Puri and J. K. Mehra for the Respondent.
The Judgment of the Court was delivered by DESAI, J.
In exercise of the power conferred by Sec. 4 (K) of the U.P (`Act ' for short) the Government of Uttar Pradesh by its order dated May 23, 1975 referred the following dispute to the Industrial Tribunal for adjudication.
The reference is in Hindi.
Agreed translation of the industrial dispute referred for adjudication reads as under: "Whether the variable dearness allowance payable by the employers to their workmen should be revised and it should be linked with the consumer price index for industrial workers at Kanpur computed by Labour Bureau Simla ? If yes, then from what rate (sic) and with what other details.
" There are two rival unions of the workmen employed by the Indian Oxygen Ltd. (`Company ' for short) in its Industrial under taking at Kanpur.
They are the Indian Oxygen Karamchari Union (Karamchari Union ' for short) and the Indian Oxygen Sharamik Sangh (`Sharamik Sangh ' for short).
There is a federation of trade unions formed at various centres where the Company has its industrial undertaking.
Sharamik Sangh is affiliated to the federation.
Karamachari Union claims to represent the workmen employed by the Company at Kanpur.
The demand and the consequent industrial dispute which led to the reference was espoused by Karamchari Union.
The Karamchari Union in its statement of claim stated that the Company is a unit of the multi national British Oxygen Company.
The Indian Unit of the multi national corporation operates under the name and style of M/s Indian Oxygen Ltd. The industrial activities of the Company comprises manufacture and sale of industrial and medical gases etc.
It was stated that while the wage structure is uniform in respect of workmen employed by the Company all over the country the dearness allowance formula varies from centre to centre.
Briefly it was stated that the workmen of the Company employed at Bombay, Madras, Hyderabad, Bangalore and 115 Delhi are in receipt of higher dearness allowance compared to the workmen employed in Kanpur Unit.
The immediate provocation for raising the demand was an award by the Industrial Tribunal Delhi by which the dearness allowance of the workmen employed in Delhi unit was linked to consumer price index for Delhi prepared by the Labour Bureau Simla which resulted in a substantial increase in the dearness allowance available to the workmen posted at Delhi.
Soon after the award was published, the Karamahcari Union submitted a demand on January 7, 1975 for revising the rate of dearness allowance for workmen employed in Kanpur unit and as there was no adequate response from the employer, the matter was taken into conciliation.
The Company in its attempt to thwart the demand being pursued entered into a settlement with the Sharamik Sangh in respect of the dearness allowance and then approached the Labour Commissioner Kanpur for registering the settlement.
Failing to obtain the registration, the Company unilaterally enforced the new scheme of dearness allowance linked to the all India average consumer price index prepared by Labour Bureau Simla.
The Karamchari Union did not accept the revised formula, and pressed its demand that the dearness allowance should be linked to all India consumer price index number prepared by Labour Bureau, Simla for Kanpur centre, after adopting the linking factor as has been done in the award by the Industrial Tribunal at Delhi.
The conversion ratio was suggested at 4.83 linked to January 1970 index number.
The Company consistent with the employer culture put forth number of preliminary objections so as to delay the adjudication of the demand.
All the preliminary objections failed as per the decision of this Court in Indian Oxygen Ltd. vs The Workmen as represented by Indian Oxygen Karamachari Union.(1) After the matter went back for adjudication on merits it was contended on behalf of the Company that the settlement arrived at between the Sharamik Sangh and the Company would be binding on the members of the Karamachari Union and the Tribunal should not adjudicate the dispute on merits.
This settlement has been stigmatized by this Court to be a collusive one.
(See page 920).
It was further contended that the Company is desirous of linking dearness allowance to all India average consumer price index for working class with base 1960=100 and that the Tribunal should avoid accepting a demand of a few workmen where a majority of the workmen have accepted and are satisfied with the revised formula introduced by the Company.
116 The Company employs 5,400 workmen in all its establishments all over the country.
Out of total strength of 5,400 workmen, 3030 are employed in gas manufacturing unit.
The employment strength in Kanpur unit is roughly about 200.
It is not in dispute that the basic wages of all workmen employed all over the country by this Company are occupation wise uniform but the dearness allowance paid to workmen differs or varies from place to place.
This ought to be so as will be presently pointed out.
Prior to 1975 dearness allowance to the workmen employed in the units of the Company in North Eastern Zone i.e. in the States of West Bengal, Bihar, Orissa, U.P., Delhi and Punjab was linked to the consumer price index number (middle class) prepared by the Bengal Chamber of Commerce for Calcutta.
It may be mentioned that the Bengal index has been discontinued since 1975.
It is important to note that by the two awards of the Industrial Tribunal, the office staff and the workmen employed the Company at Delhi are being paid dearness allowance linked to consumer price index compiled by Labour Bureau Simla for Delhi.
Subsequently by a decision of this Court in Govardhan Prasad and others vs The Management of M/s Indian Oxygen Ltd.(1) 10 workmen employed by the Company stationed at Ghaziabad were required to be paid dearness allowance to the same extent and in the same manner as was being paid under the awards of the Industrial Tribunal to the workmen of the Company at Delhi.
Before we delve into the narrow contentions raised in this behalf we would remove the gloss over the submission that the attempt of the company, having all India operation, is to introduce uniformity in the matter of dearness allowance payable to its workmen all over the country.
Uniformity, to an uninformed mind, appears to be very attractive.
But let it not be forgotten that sometimes this uniformity amongst dissimilar persons becomes counter productive.
Uniformity and equality have to be amongst equals measured by a common denominator.
One can appreciate the implementation of the constitutional aspiration of `equal pay for equal work. ' In the matter of basic wages it is a consummation devotedly to be wished.
But when it comes to dearness allowance any attempt at uniformity between workmen in such metropolitan areas like Delhi, Bombay, Madras, Calcutta and in smaller centres 117 would be destructive of the concept of dearness allowance.
Dearness allowance is directly related to the erosion of real wages by constant upward spiraling of the prices of basic necessities and as a sequel to the inflationary input, the fall in purchasing power of the rupee.
It is a notorious phenomenon hitherto unquestioned that price rise varies from centre to centre.
Dearness allowance is inextricably intertwined with price rise, it being an attempt to compensate loss in real wages on account of price rise considered as a passing phenomenon by compensation.
That is why it is called variable dearness allowance.
Any uniformity in the matter of dearness allowance may confer a boon on persons employed in smaller centres and those in big metropolitan areas would be hard hit.
Dearness allowance by its very form and name has an intimate relation to the prevailing price structure of basic necessities at the centre in which the workman is employed.
Therefore, the claim in the written statement on behalf of the company that imbued with the equitable principle of introducing uniformity in the matter of dearness allowance, the Company with the easy availability of consent of its protege union Sharamik Sangh introduced a new scheme of dearness allowance linked to the all India average consumer price index prepared by Labour Bureau, Simla is misleading.
The Tribunal rightly observed that it is by now well settled that dearness allowance to workmen at a particular place should depend upon the place where the workman is working irrespective of the fact that the industrial undertaking in which the workman is employed is a unit of an industrial enterprise having an all India or inter State operations.
In Dunlop Rubber Co. (India) Ltd vs Workmen & Ors.,(1) a contention on behalf of the employer that in the case of an all India concern, it would be advisable to have uniform conditions of service throughout India was repelled observing that `however desirable uniformity may be in the case of all India concerns, the tribunal cannot abstain from seeing that fair conditions of service prevail in the industry with which it is concerned. ' This view to some extent was affirmed in the Remington Rand of India Ltd vs The Workmen(2).
Leaving aside basic wages in the matter of dearness allowance specially the Court should lean in favour of adjudication of dispute on the principle of industry cum region because dearness allowance is linked to cost of living index of a particular centre which has a local flavour.
If the concept of uniformity on an all India basis is introduced in the matter of dearness allowance, it would work havoc, because the price structure 118 in a market economy at places like Bombay, Madras, Calcutta, Delhi, Ahmedabad has little or no relation to smaller centres like Kanpur, Varanasi etc.
If workmen working in such disparate centres are put on par in the matter of dearness allowance in the name of proclaimed all India uniformity, not only unequals will be treated as equals but the former would suffer irreparable harm.
Such an approach would deal a fatal blow to the well recognised principle of industrial adjudication based on region cum industry developed by courts by a catena of decisions.
Realising this situation courts have learned in favour of determination of dearness allowance linked to cost of living index, if available for the centre where the workman employed and in the matter of neutralisation on the industry cum region principle.
The Tribunal having rejected this approach committed an error apparent on the record.
At this stage, it is necessary to have some idea of what is consumer price index number, how it is being complied and what is its relevance in the matter of dearness allowance ? Pursuant to the recommendations of the Planning Commission for the Second Five Year Plan the Labour Bureau, Simla and the Industrial Statistical Organisation of the Government of India took steps to conduct fresh family living surveys among working class and middle class population respectively with a view to constructing the new series of consumer price index numbers.
The working class surveys were conducted at 50 selected centres and the middle class surveys at 45 centres, 18 centres being common to both.
The work of this survey was commenced in the second half of 1958 and was concluded by September, 1959.
One of the centres selected for survey was Kanpur (See Ahmedabad Mill Owners ' Association etc.
vs The Textile Labour Association(1) What materials and statistical information enter into the compilation of consumer price index number may be briefly noticed.
The consumer price index number for industrial workers (base 1960=100) are being compiled and published by the Labour Bureau, Simla every month in respect of 50 industrial centres scattered all over the country.
Amongst them is Kanpur.
The material collected is through the family surveys of working class families.
There are six main groups for which indices for each centre are being compiled besides the general index.
They are: 119 (i) Food (ii) Pan, Supari, Tobacco and intoxicants (iii) Fuel and light (iv) Housing (v) Clothing, bedding and footwear, and (vi) Miscellaneous Consumer price index numbers are intended to measure relative temporal (overtime) changes in the price of a fixed basket of goods and services consumed by the index population in a current period in relation to the base period.
The index numbers are compiled by using Laspeyers ' Formula.
The Broadly stated this formula takes note of base and current prices for a particular item, quantity consumed of that item during the base period.
It would appear that for the compilation of an index, there are three essential requirements namely: (1) weighting diagram which is the relative percentage share of the total consumption expenditure as revealed by the basic family budget enquiry in respect of different items, (2) Base prices of the different items which go into the index basket and (3) current prices in respect of each one of the items featuring in the index basket.
The weighting diagram for a centre is derived on the basis of the data collected through family budget enquiries which were conducted in the 1958 59 at each one of the 50 centres.
The survey was conducted by taking all samples of working class families in each of the 50 centres and the data was collected by interviewing these families.
Based on the results of the family budget enquiries, the average expenditure of a family per month on different items of consumption was arrived at.
All India average consumer price index number is a weighted average of the 50 centres ' indices.
This is compiled and published alongwith the index number for each centre (Source: Consumer Price Index: An anatomy published by Labour Bureau, Simla).
It would appear at a glance that there would be a noticeable difference between the consumer price index number for a centre and its weighted average for 50 centres which would be the all India average consumer price index number, the latter would generally be lower than the former in some cases.
120 Reverting to the demand in this case, the Karamchari Union raised a demand that the variable dearness allowance payable to the workmen should not only be revised but it should be linked with the consumer price index for industrial workers at Kanpur.
The Tribunal by its award directed the employer to pay dearness allowance linked to the all India consumer price index (1960= 100) for the Kanpur Centre compiled by Labour Bureau, Simla.
On the question of neuturalisation, the Tribunal directed that the calculation in the rate of dearness allowance will remain the same as presently operative and no change is required therein.
In reaching this conclusion, the Tribunal committed two manifest errors apparent on the record.
The company introduced as stated in its written statement, a new scheme of dearness allowance linked to the all India consumer price index prepared by Labour Bureau, Simla.
That was a very recent innovation introduced by way of a counter blast to the demand raised by the Karamchari Union.
Prior thereto, it is an admitted position that the workmen at Kanpur were being paid dearness allowance linked to Bengal Chamber of Commerce Index Number.
That was unilaterally given up by the Company.
There appeared to be at least two valid reasons for scrapping that scheme: one is that since 1975 Bengal Chamber of Commerce Index which was compiled for middle class families and was being artificially applied to industrial workers has been scrapped.
In other words, the index is no more being compiled.
Secondly, the constituent members of the Bengal Chamber of Commerce had started their business in India long before the present century and most of them were incorporated in England or other Western countries while the Company in the present case has been started a few decades back and therefore, re induction of the Bengal Chamber Index Number would not be relevant.
On behalf of the Karamchari Union, it was contended that in devising a dearness allowance formula, the region cum industry principle should ordinarily be accepted.
As pointed out earlier, dearness allowance generally has a local flavour.
A man is exposed to the vagaries of the market where he resides and works, even though he may be an employee of a national, multinational or trans national industrial empire.
The workman is concerned with the vagaries of price fluctuation in the area in which he resides and works for gain and to which he is exposed.
Therefore, the region 121 cum industry principle must inform industrial adjudication in the matter of dearness allowance.
In Woolcombers of India Ltd. vs Woolcombers Workers Union & Anr.
(1) this Court following its earlier decision in Greaves Cotton & Co. and Ors vs Their Workmen (2) held that in devising basic wages and dearness allowance structure, industrial adjudication sometimes leans on the industry part of the industry cum region formula and at other times, on the region part of the formula as the situation demands.
This well recognised principle of industrial adjudication cannot be given a go by on the specious plea that the workmen are employed by an industrial undertaking which has an all India operation.
In this case, the Tribunal has overlooked this important principle of industrial adjudication.
Before we examine the second manifest error committed by the Tribunal in narrowly construing the terms of reference, it would be advantageous to briefly recapitulate what relevant considerations have to be kept in view in devising dearness allowance formula.
This aspect is no more res integra.
In Bengal Chemical and Pharmaceutical Works Ltd. vs Its workmen (3), after reviewing all the earlier decisions, the court restated the principles on which a fair and just dearness allowance formula must be devised.
They are: "1.
Full neutralisation is not normally given, except to the very lowest class of employees.
The purpose of dearness allowance being to neutralise a portion of the increase in the cost of living, it should ordinarily be on a sliding scale and provide for an increase on the rise in the cost of living and a decrease on a fall in the cost of living.
The basis of fixation of wages and dearness allowance is industry cum region.
Employees getting the same wages should get the same dearness allowance, irrespective of whether they are working as clerks or members of subordinate staff or factory workmen.
122 5.
The additional financial burden which a revision of the wage structure or dearness allowance would impose upon an employer, and his ability to bear such burden, are very material and relevant factors to be taken into account.
" We need not examine whether the dearness allowance formula as at present existing is valid according to the principles herein extracted because we are not devising a dearness formula for the workmen working in the industrial undertaking of the company at Kanpur for the first time.
The demand is for upward revision of the dearness allowance formula and its linkage.
The terms of reference extracted hereinbefore unmistakable show that the workmen sought upward revision of the variable dearness allowance by linking it to the consumer price index number for industrial workers at Kanpur computed by Labour Bureau, Simla.
If the demand is to be granted, the Tribunal was requested to specify the rate and other details.
Interpreting this reference the Tribunal observed that the new dearness allowance formula which was in vogue at the time of the reference as being related to all India average consumer price index number for industrial workers in accordance with the settlement with the Shramik Sangh which settlement was found to be collusive by this Court yet the Tribunal must proceed on the basis that dearness allowance was being paid to the workmen at Kanpur as per the settlement and that cannot be wished away.
This approach overlooks a vital fact that the introduction of the new formula under a collusive settlement led to the demand for revision.
The Tribunal rejected the submission that it must examine and devise a new formula in relation to the Bengal Chamber of Commerce Index Scheme which was in vogue before the formula as per the collusive settlement was introduced.
If the settlement between the company which is found to be collusive by this Court is to be the starting point of revision of the dearness allowance formula as has been done by the Tribunal, the conclusion is inescapable that the Tribunal started from a wrong premise and landed itself into an utterly unsustainable conclusion.
This is the second apparent error in the face of the record which would impoll us to interfere.
Mere so because the genesis of the demand for a revision of the dearness allowance was the collusive settlement.
The Tribunal committed a grave error in accepting the settlement as the starting point of the revision.
123 The demand of the Karamchari Union was that the Tribunal should first take into account, relevant to a certain date, the all India consumer price index number for Kanpur centre (1960=100) and then the index figure should be multiplied by the conversion factor of 4.83 and then dearness allowance should be linked to the figure so worked out.
The Tribunal rejected this demand on the ground that in the statement of claim, the Karamchari Union demanded payment of dearness allowance according to Simla Index Number for Kanpur.
The Tribunal took note of the fact of the linking factor but observed that as the same has been discontinued by the Labour Commissioner, U.P., the demand has been essentially for dearness allowance according to the Simla Index for Kanpur.
This reasoning manifests an error in approaching, appreciating and evaluating the demand for revision of dearness allowance.
Before we examine the error, let it be made clear that where for a certain industrial centre, a dearness allowance formula is in vogue and it is linked to some consumer price index number, whenever the base year for consumer price index number is changed, a fresh linkage requires a conversion ratio.
In the absence of a conversion ratio, the whole scheme falls out of gear and becomes unworkable.
To illustrate, in the textile industry, the consumer price index number was compiled on the basis of base year 1939=100.
The year 1939 was chosen as the year in which the second world was engulfed the world which completely overhauled the consumer pattern and the prices of essential articles.
Over years the price spiral relentlessly moved upward and that too so rapidly that in most of the industries where even though 100% neutralisation was not given by devising a dearness allowance yet the dearness allowance for a given month was occasionally double or triable of the basis wage.
This was unjust, unfair and from an economist 's point of view, imprudent.
Therefore, as pointed out earlier, a fresh survey was undertaken in 1958 with the base year 1960=100.
A fresh index was compiled and continues to be compiled with 1960=100 as base year.
In fact the 1960=100 base year is being replaced.
We will however, confine ourselves in this appeal to the base year of 1960=100.
Now if those industrial undertakings in which dearness allowance formula was linked to the base year 1939=100 are to be delinked and relinked to the index number compiled on the base year 1960=100, before the fresh number is adopted, a linking or a conversion ratio between 1939 100 and 1960=100 will have to be computed.
Only then a fresh linkage 124 can be devised.
This very obvious fact has been wholly overlooked by the Tribunal when it merely awarded that the workmen of the company at Kanpur should be paid dearness allowance linked to the all India consumer price index number (1960=100) for Kanpur Centre compiled by Labour Bureau, Simla.
This approach overlooks the linking factor.
The rejection of the linking or conversion factor makes the scheme devised by the award unworkable, ineffective and in fact unjust.
In this connection, we may refer to the Ahmedabad Mill Owner 's Association case in which this Court after noting the fact that the base year having changed, pointed out that the question of linking factor loomed large and assumed importance.
The court had before it the admitted position that there was only one index existing in Ahmedabad which was based on the new series (1960=100) and the old series (1939=100) has rightly gone out of existence since it had become antiquated.
Two alternatives were submitted to the court for its consideration.
It was submitted that an entirely new scheme of basic wages based not on the pre war level of 1939, but based on the cost of living of 1960 as the base year be devised and then award dearness allowance in relation thereto.
In the alternative, it was submitted that an arithmetical method of linking the old and the new series be devised.
The Tribunal had accepted the conversion ratio at 3.17.
This was attacked on diverse grounds.
After examining the whole gamut of arguments, this Court held that the linking factor of 3.17 was valid and correct Approaching the matter from the same angle, and avoiding the arguments which have been rejected by this Court in the aforementioned judgment, we are of the opinion that the conversion ratio of 4.83 is valid and correct and the Tribunal ought to have accepted the same.
It is usual in the matter of dearness allowance to examine the paying capacity of the employer.
Rightly Mr. Pai did not at all contend that this employer can not bear the additional burden.
We therefore, need not stray into this aspect at all.
On behalf of the Karamchari Union, it was seriously contended that the award of the Industrial Tribunal at Delhi between this very Company and its Workmen at Delhi be accepted.
We need not examine the same as the comparison between Delhi and Kanpur is ill conceived and untenable.
Delhi is the capital of the sub continent and it is fast growing.
Kanpur is at best a district town though 125 undoubtedly an important industrial centre in U.P.
But the comparison would be invidious.
Accordingly, this appeal partly succeeds and is allowed.
The award of the Industrial Tribunal that the workmen of the Kanpur unit of the Indian Oxygen Ltd. should be paid dearness allowance linked to all India consumer price index (1960=100) for Kanpur centre compiled by the Labour Bureau, Simla is modified to read that 'the dearness allowance should be paid according to all India consumer price index number for Kanpur (1960=100) compiled by Labour Bureau, Simla after applying conversion factor also called linking factor of 4.83. ' In all other respects i.e. the date of enforceability etc.
the award remains unaltered except for the modification herein granted.
The appeal is allowed to this extent with costs quantified at Rs. 3,000.
A.P.J. Appeal partly allowed.

Output:
In the respondent Company there were two rival Unions of workmen, namely, Karamchari Union and Sharmik Sangh.
The Karamchari Union espoused the demand of the workmen employed by the Company in its Kanpur unit for upward revision of dearness allowance following an award of the Industrial Tribunal Delhi by which the dearness allowance of the workmen employed in the Delhi unit was linked to the consumer price index for Delhi prepared by Labour Bureau, Simla, which substantially increased the dearness allowance of workmen posted at Delhi.
The Company in its attempt to thwart the demand being pursued by the Karamchari Union, entered into a settlement with the Shramik Sangh in respect of dearness allowance and then approached the Labour Commissioner for registering the settlement Failing to obtain the registration, the Company utilaterally enforced the new scheme of dearness allowance linked to all India average consumer price index prepared by Labour Bureau, Simla.
The Karamchari Union did not accept the revised formula and pressed its demand.
The dispute was referred for adjudication.
Before the Tribunal the Company contended: (1) that the settlement would be binding on the members of the Karamchari Union and the dispute does not require adjudication on merits, and (2) that the Company is desirous of linking dearness allowance to all India average consumer price index for 112 working class with base 1960 100 and the Tribunal should avoid accepting the demand of a few workmen.
The tribunal directed that the workmen of the Kanpur unit of the Company should be paid dearness allowance linked to the all India consumer price index (1960 100) for Kanpur Centre compiled by the Labour Bureau, Simla.
On the question of neutralisation, no change was allowed.
Partly allowing the appeal of the workmen, ^ HELD: 1.
The workmen of the Kanpur unit of the Company should be paid the dearness allowance according to all India consumer price index number for Kanpur (1960 100) compiled by Labour Bureau Simla after applying conversion factor also called the linking factor of 4.83.
Their dearness allowance cannot be linked to all India average consumer price index.
[125 B C] 2.
The Tribunal Committed a grave error in accepting collusive settlement as the starting point of the revision.
[122 H] 3, Uniformity, to an uninformed mind, appears to be attractive.
But, sometimes uniformity amongst dissimilar persons becomes counter productive.
Uniformity and equality have to be amongst equals measured by a common denominator.
The implementation of the Constitutional aspiration of `equal pay for equal work ' can be appreciated.
In the matter of basic wages it is a consummation devotedly to be wished.
But when it comes to dearness allowance any attempt at uniformity between workmen in metropolitan areas and in smaller centres would be destructive of the concept of dearness allowance.
[116 G H] Dearness allowance is directly related to the erosion of real wages by constant upward spiraling of the prices of basic necessities and as a sequal to the inflationary input, the fall in the purchasing power of the rupee.
It is a notorious phenomenon hitherto unquestioned that price rise variee from centre to centre, [117 A] Dearness allowance is inextricably intertwined with price rise, it being an attempt to compensate loss in real wages on account of price rise considered as a passing phenomenon by compensation.
That is why it is called variable dearness allowance.
Any uniformity in the matter of dearness allowance may confer a boon on persons employed in smaller centres and those in bigger metropolitan areas would be hard hit.
Dearness allowance by its very form and name has an intimate relation to the prevailing price structure of basic necessities at the centre in which the workman is employed.
[117 B C] Dearness allowance to workmen at a particular place should therefore depend upon the place where the workman is working irrespective of the fact that the industrial undertaking in which the workman is employed is a unit of an industrial enterprises having an all India or inter State operations.
[117 E] 113 4.
In the matter of dearness allowance the Court should lean in favour of adjudication of dispute on the principle of industry cum region because dearness allowance is linked to cost of living index of a particular centre which has a local flavour.
A workman is exposed to the vagaries of the market where he resides and works, even though he may be an employee of a national, multi national or transnational industrial empire.
Therefore.
the region cum industry principle must inform industrial adjudication in the matter of dearness allowance.
In the instant case the Tribunal has overlooked this important principle of industrial adjudication.
[117 G; 120 H; 121 A; 121 C] Dunlop Rubber Co. (India) Ltd. vs Workmen & Ors., ; , referred to.
Remington Rand of India Ltd. vs The Workmen , woolcombers of India Ltd. vs Woolcombers Workers Union & Anr. ; and Greaves Cotton & Co. and Ors.
vs Their Workmen ; and Bengal Chemical and Pharmaceutical Works Ltd. vs Its Workmen ; , followed.
Any attempt of a company introducing uniformity in the matter of dearness allowance linked to the all India average consumer price index prepared by Labour Bureau, Simla would be destructive of the concept of dearness allowance.
Not only unequals will be treated as equals but the former would suffer irreparable harm.
Such an approach would deal a fatal blow to the well recognised principle of industrial adjudication based on region cum industry because there cannot be any uniformity in the dearness allowance of the workmen working in metropolitan areas and the workmen working in smaller areas.
[118 A C] 6.
Where for a certain industrial centre a dearness allowance formula is in vogue and it is linked to some consumer price index number, whenever the base year for consumer price index number is changed, a fresh linkage requires a conversion ratio.
In the absence of a conversion ratio, the whole scheme falls out of gear and becomes unworkable, ineffective and in fact unjust.
In the instant case the conversion ratio of 4.83 in valid and correct and the Tribunal ought to have accepted the same.
[123 D; 124 F] Ahmedabad Mill Owners ' Association etc.
vs The Textile Labour Association, [1966) 1 S.C.R. 382, followed.
In the matter of dearness allowance usually the paying capacity of the employer is examined.
In the instant case, it has not at all been contended that the respondent company cannot bear the additional burden.
[124 G]