judgement:
Civil Appeal No. 2630 of 1987.
516 From the Judgment and order dated 3.?.1986 of the Patna High Court in C.W.J.C. No. 2823 of 1986.
R.N. Sinha, M.M. Prasad Sinha and P.C. Kapur for the Appellant.
B. Datta, Additional Solicitor General, M.S. Rao, C. Ramesh and C.V.S. Rao for the Respondents.
The Judgment of the Court was delivered by VENKATACHALIAH, J.
This appeal, by special leave, preferred against the order dated July 3, 1986, of the Division Bench of the Patna High Court in C.W.J.C. No. 2823 of 1986 raises a substantial question as to the scope and content of the procedural safe guards in Section 130 of the Indian ( 'Act ') in the conduct of the Courts Martial.
The High Court dismissed, in limine, the appellant 's writ petition, under Article 226, challenging the proceedings dated March 30, 1985, of the Summary Court Martial imposing the punishment of dismissal from service and a sentence of an year 's rigorous imprisonment on the appellant.
Appellant, Ranjit Thakur, joined the Armed Services on September 7, 1972, and was, at the relevant time, a Signal Man in "4, Corps operating Signal Regiment." Apparently, appellant had not commended himself well to respondent No. 4, who was the commanding officer of the regiment.
On March 29, 1985, appellant was already serving out a sentence of 28 days ' rigorous imprisonment imposed on him for violating the norms for presenting representations to higher officers.
Appellant is stated to have sent representation complaining of ill treatment at the hands of Respondent 4 directly to the higher officers.
Appellant was punished for that by Respondent 4.
Appellant was held in the Quarter guard Cell in handcuffs to serve that sentence of rigorous imprisonment.
While so serving the sentence appellant is stated to have committed another offence on March 29, 1985, for which the punishment now impugned was handed down by Respondent 4.
The nature of this offence had better be excerpted from the charge sheet itself: "The accused No. 1429055 M Signalman Ranjit Thakur of 517 4 Corps operating Signal Regiment is charged with Section 41(2) Disobeying a lawful command given by his superior officer Section 41(2) In that he at 15.30 hrs.
On 29.5.1985 when ordered by JC 10625 lP Sub Ram Singh, the orderly officer of the same Regiment to eat his food, did not do so.
" To try this offence a Summary Court Martial was assembled the very next day i.e. March 30, 1985.
Respondent 4 and 2 others were on the Court Martial.
Some witnesses were examined.
Appellant is stated to have pleaded guilty.
A sentence of rigorous imprisonment for one year was imposed, in pursuance of which appellant was removed immediately to the civil prison at Tejpur to serve out the sentence.
Appellant has served out the sentence.
He was also dismissed from service, with the added disqualification of being declared unfit for any future civil employment.
The representation of the appellant to the confirming authority under Section 164 of the was rejected by General of ficer Commanding on 24.5.1985.
The High Court, however, persuaded itself to dismiss, in limine, appellant 's writ petition challenging the proceedings of the Summary Court Martial.
We have heard learned counsel on both sides.
The matter was adjourned on two earlier occasions on the submission of the learned Additional Solicitor General, that the question whether a lesser punishment was warranted was engaging the attention of the appropriate authorities.
Apparently, nothing came out of it.
F The submissions of Shri Sinha, in support of the appeal, admit of being formulated thus: (a) (i) The proceedings of the Court Martial are vitiated by non compliance with the mandate of Section 130(1) of the in that the Summary Court Martial did not afford to the appellant an opportunity to challenge its constitution as required by that section; (ii) The proceedings of the Court Martial were vitiated by bias on the part of Respondent 4 who participated in and dominated the proceedings; H 518 (b) In as much as the appellant was then serving a sentence of rigorous imprisonment, he was not in "active service" and that no question of disobeying any lawful command could at all arise; (c) Appellant 's refusal, while serving a sentence to accept food did not amount to disobedience, under Section 41, of any lawful command of a superior officer in such manner as to show a wilful defiance of authority; (d) At all events, the punishment handed down is so disproportionate to the offence as to amount, in itself to conclusive evidence of bias and vindictiveness.
Re: contention (a): The records of the proceedings of the Special Summary Court Martial do not indicate that the procedural safeguard against bias contained in Section 130 of the was complied with.
Section 130 provides: "130(1) At all trials by general district or summary general court martial, as soon as the court is assembled, the names of the presiding officer and members shall be read over to the accused, who shall thereupon be asked whether he objects to being tried by any officer sitting on the court.
(2)If the accused objects to any such officer, his objection, and also the reply thereto of the officer objected to, shall be heard and recorded, and the remaining officers of the Court shall, in the absence of the challenged officer decide on the objection.
" The proceedings do not indicate this was not disputed at the hearing that appellant was asked whether he objects to be tried by any officer, sitting at the Court Martial.
This, in our opinion, imparts a basic infirmity to the proceedings and militates against and detracts from the concept of a fair trial.
The "" constitutes a special law in force conferring a special jurisdiction on the Court Martial prescribing a special procedure for the trial of the offences under the ' '.
Chapter VI of the ' ' comprising of sections 34 to 68 specify and define the various offences under the ' '.
Sections 7] to 89 of Chapter VII specify the various 519 punishments.
Rules 106 to 133 of the Army Rules 1954 prescribe the procedure of, and before, the Summary Court Martial.
The and A the Rules constitute a self contained Code, specifying offences and the procedure for detention, custody and trial of the offenders by the Courts Martial.
The procedural safe guards contemplated in the must be considered in the context of and corresponding to the plenitude of the Summary jurisdiction of the Court Martial and the severity of the consequences that visit the person subject to that jurisdiction.
The procedural safe guards should be commensurate with the sweep of the powers.
The wider the power, the greater the need for the restraint in its exercise and correspondingly, more liberal the construction of the procedural safeguards envisaged by the Statute.
The oft quoted words of Frankfurter, J. in Vitarelli vs Seaton, 359 U.S.535 are again worth re calling; ". if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed . . . . . . . .
This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so.
He that takes the procedural sword shall perish with that sword.
E "The history of liberty" said the same learned Judge "has largely been the history of observance of procedural safeguards.
" ; We are afraid, the non compliance of the mandate of section 130 is an infirmity which goes to the root of the jurisdiction and without more, vitiates the proceedings.
lndeed it has been so held by this Court in Prithvi Pal Singh vs Union of India, AIR 1982 SC 1413 where Desai, J referring to the purpose of section 130 observed: ". .Whenever an objection is taken it has to be recorded.
In order to ensure that anyone objected to does not participate in disposing of the objection . . . .
This is a mandatory requirement because the officer objected to cannot participate in the decision disposing of the objection.
H 520 . .
The provision conferring a right on the accused to object to a member of the Court Martial sitting as a member and participating in the trial ensures that a charge of bias can be made and investigated against individual members composing the Court Martial.
This is pre eminently a rational provision which goes a long way to ensure a fair trial.
" What emerges, therefore, is that in the present case there is a non compliance with the mandate of section 130 with the attendant consequence that the proceedings of the Summary Court Martial are rendered infirm in law.
This disposes of the first limb of the contention (a).
The second limb of the contention is as to the effect of the alleged bias on the part of respondent 4.
The test of real likelihood of bias is whether a reasonable person, in possession of relevant information, would have thought that bias was likely and is whether respondent 4 was likely to be disposed to decide the matter only in a particular way.
It is the essence of a judgment that it is made after due observance of the judicial process; that the Court or Tribunal passing it observes, at least the minimal requirements of natural justice, is composed of impartial persons acting fairly and without bias and in good faith.
A judgment which is the result of bias or want of impartiality is a nullity and the trial "coram non judice".
(See Vassiliadas vs Vassiliades AIR 7.
As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party.
The proper approach for the judge is not to look at his own mind and ask himself, however, honestly.
"Am I biased? "but to look at the mind of the party before him.
Lord Esher in Allinson vs General Council of Medical Education and Registration, l at 758 said: "The question is not, whether in fact he was or was not biased.
The Court cannot inquire into that . . . . .
In the administration of justice, whether by a recognised legal court or by persons who, although not a legal public court, are acting in a similar capacity, public 521 policy requires that, in order that there should be no doubt about the purity of the administration any person who is to A take part in it should not be in such a position that he might be suspected of being biased.
" In Metropolitan Properties Co. (F.G.C.) Ltd. vs Lannon, ; , at 599, Lord Denning M.R. Observed: B ". in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity.
It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other.
The court looks at the impression which would be given to other people.
Even if he was as impartial as could be never theless if right minded persons would think that in the circumstances there was a real likelihood of bias on his part, then he should not sit . . ".
D Frankfurter J in Public Utilities Commission of the District of Columbia vs Pollack ; at 466) said: "The judicial process demands that a judge move within the frame work of relevant legal rules and the court covenanted modes of thought for ascertaining them.
He must think dispassionately and submerge private feeling on every aspect of a case.
There is a good deal of shallow talk that the judicial robe does not change the man within it.
It does.
The fact is that on the whole judges do lay aside private views in discharging their judicial functions.
This is achieved through training, professional habits, self discipline and that fortunate alchemy by which men are loyal to the obligation with which they are interested.
But it is also true that reason cannot control the subconscious influence of feelings of which it is unaware.
When there is ground for believing that such unconscious feelings may operate in the ultimate judgment or may not unfairly lead others to believe they are operating, judges refuse themselves.
They do not sit in judgment . ".
Referring to the proper test, Ackner LJ in Regina vs Liverpool City Justices, Ex parte Topping [1983] I WLR 119 said: H 522 "Assuming therefore, that the justices had applied the test advised by Mr. Pearson Do I feel prejudiced? then they would have applied the wrong test, exercised their discretion on the wrong principle and the same result, namely, the quashing of the conviction would follow." Thus tested the conclusion becomes inescapable that, having regard to the antecedent events, the participation of Respondent 4 in the Courts Martial rendered the proceedings coram non judice.
Re: contention (b): The mere circumstance that the appellant was, at the relevant point of time, serving a sentence of imprisonment and could not therefore, be said to be in 'active service ' does not detract from the fact that he was still "a person subject to this .
" This is clear from the second clause of Section 41(2) which refers to offences committed when not in 'active service '.
The difference is in the lesser punishment contemplated.
We are, therefore, unable to appreciate the appositeness of this contention of Shri Sinha.
Re: contention (c): The submission that a disregard of an order to eat food does not by itself amount to a disobedience to a lawful command for purposes of section 41 has to be examined in the context of the imperatives of the high and rigorous discipline to be maintained in the Armed Forces.
Every aspect of life of a soldier is regulated by discipline.
Rejection of food might, under circumstances, amount to an indirect expression of remonstrance and resentment against the higher authority.
To say that, a mere refusal to eat food is an innocent, neutral act might be an over simplification of the matter.
Mere in action need not always necessarily be neutral.
Serious acts of calumny could be done in silence.
A disregard of a direction to accept food might assume the complexion of disrespect to, and even defiance of authority.
But an unduly harsh and cruel reaction to the expression of the injured feelings may be counter productive and even by itself be subversive of discipline.
Appellant was perhaps expressing his anguish at, what he considered, an unjust and disproportionate punishment for airing his grievances before his superior officers.
However, it is not necessary in this case to decide contention (c) in view of our finding on the other contentions.
Re: contention (d): Judicial review generally speaking, is not directed against a decision, but is directed against the "decision making process".
The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court Martial.
But the 523 sentence has to suit the offence and the offender.
It should not be A vindictive or unduly harsh.
It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias.
The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court Martial, if the decision of the Court even as to sentence is an outrageous defiance of B logic, then the sentence would not be immune from correction.
Irrationality and perversity are recognised grounds of judicial review.
In Council of Civil Service Unions vs Minister for the Civil Service, [1984] 3 Weekly Law Reports 1174 (HL) Lord Deplock said: ".
Judicial Review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review.
The first ground l would call 'illegality '.
the second irrationality ' and the third 'procedural impropriety '.
That is not to say that further development on a case by case basis may not in course of time add further grounds.
I have in mind particularly the possible adoption in the future of the principle of 'proportionality ' which is recognised in the administrative law of several of our fellow members of the European Economic Community . . . . .
E In BhagatRam vs State of Himachal Pradesh, A.I.R. 1983 SC 454 this Court held: "It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution.
The point to note, and emphasise is that all powers have legal limits.
In the present case the punishment is so strikingly disproportionate as to call for and justify interference.
It cannot be allowed to remain uncorrected in judicial review.
In the result, for the foregoing reasons, the appeal is allowed, the order of the High Court set aside, the writ petition preferred in the High Court allowed and the impugned proceedings of the 524 Summary Court Martial dated March 30, 1985, and the consequent order and sentence are quashed.
The appellant is entitled to and shall be reinstated with all monetary and service benefits.
There will, however, be no order as to costs.
N.P.V. Appeal allowed.

summary:
% The appellant, a Signal Man in a Signal Regiment of the Armed Services, while serving out a sentence of 28 days ' rigorous imprisonment imposed on him by the Commanding officer of the Regiment respondent No. 4, for violating norms for presenting representations to higher officers, was alleged to have committed another offence by refusing to eat his food on March 29, 1985 when ordered to do so.
He was charged under section 41(2) of the for disobeying a lawful command given by his superior officer.
A sentence of rigorous imprisonment for one year was imposed by a Summary Court Martial consisting of respondent No. 4 and others.
He was removed to the civil prison and he served out the sentence.
The appellant 's representation to the confirming authority under section 164 of the Act was rejected by the General officer Commanding on May 24,1985.
The appellant 's writ petition challenging proceedings of the Summary Court Martial was dismissed in limine by the High Court.
513 In the appeal by special leave, it was contended on behalf of the appellant that the proceedings of the Court Martial were vitiated (i) by a non affording of an opportunity to challenge the constitution of the Summary Court Martial under section 130(1); (ii) by bias on the part of the respondent No. 4 who participated in and dominated the proceedings; (iii) by awarding a punishment so disproportionate to the offence as to amount in itself to conclusive evidence of bias and vindictiveness; and (iv) by ignoring that as the appellant was then serving out an earlier sentence he could not be need to be in active service so as to be amenable to disciplinary jurisdiction and that the appellant 's refusal, while already serving a sentence, to accept food did not amount to disobedience under section 41, of any lawful command of a Superior officer.
Allowing the appeal, ^ HELD: 1.1 The Indian constitutes a special law in force conferring a special jurisdiction on.
the Court Martial prescribing a special procedure for the trial of the offences under the Act.
The Act and Rules constitute a self contained Code specifying offences and the procedure for detention, custody and trial of the offenders by the Court Martial.
[518G H; 519A] 1.2 The procedural safeguards contemplated in the Act must be considered in the context of and corresponding to the plenitude of the Summary jurisdiction of the Court Martial and the severity of the consequences that visit the person subject to that jurisdiction.
The procedural safeguards should be commensurate with the sweep of the powers.
The wider the power, the greater the need for the restraint in its exercise ad correspondingly, more liberal the construction of the procedural safeguards envisaged by the Statute.
[519B C I 1.3 Non compliance with the mandate of section 130 is an infirmity which goes to the root of jurisdiction and without more, vitiates the proceedings.
[519F] Prithvi Pal Singh vs Union of India, AIR 1982 SC 1413 relied on.
Vitarelli vs Seaton, ; referred to.
514 2.1 It is the essence of a judgment that it is made after due observance of the judicial process; that the Court or Tribunal passing it observes, at least the minimal requirements of natural justice, is composed of impartial persons.
acting fairly and without bias and in good faith.
A judgment which is the result of bias or want of impartiality is a nullity and the trial 'coram non judice '.
[520D E] Vassiliades vs Vassiliades, AIR 1945 PC 38 referred to.
2.2 As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party.
The proper approach for the Judge is not to look at his own mind and ask himself, however, honestly, "Am I biased"? but to look at the mind of the party before him.
[520F] Allinson vs General Council of Medical Education and Registration, at 758; Metropolitan Properties Co. (F.G.C.) Ltd. vs Lannon, ; d 599; Public Utilities Commission of the District of Columbia vs Pollack, ; at 466 and Regina vs Liverpool City Justices, Ex parte Topping, referred to.
Having regard to the antecedent events, the participation of respondent No. 4 in the Courts Martial rendered the proceedings Coram non judice.
[522B] 3.
The mere circumstance 'that the appellant was at the relevant point of time, serving a sentence of imprisonment and could not, therefore, be said to be in 'active service ' does not detract from the fact that he was still a person subject to the Act, as is clear from the second clause of section 41(2) which refers to offences committed when not in 'active service ', the difference being in the lesser punishment contemplated.
[522C D] 4.
Every aspect of life of a soldier is regulated by discipline.
Rejection of food might, under circumstances, amount to an indirect expression of remonstrance and resentment against the higher authority.
To say that a mere refusal to eat food is an innocent, neutral act might be an over simplification of the matter.
Mere in action need not always necessarily be neutral.
Serious acts of calumny could be done in silence.
A disregard of a direction to accept food might assume the 515 complexion of disrespect to, and even defiance of authority.
But an unduly harsh and cruel reaction to the expression of the injured feelings may he counter productive and even by itself be subversive of discipline.
[522E F] In the instant case, appellant was perhaps expressing his anguish at, what he considered, an unjust and disproportionate punishment for airing his grievances before his superior officers.
[522G] 5.
Judicial review generally speaking, is not directed against a decision, but is directed against the "decision making process".
The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court Martial.
But the sentence has to suit the offence and the offender.
It should not be vindictive or unduly harsh.
It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias.
The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction.
Irrationality and perversity are recognised grounds of judicial review.
All powers have legal limits.
[522G H; 523A C] Council of Civil Service Unions vs Minister for the Civil Service, [1984] 3 Weekly Law Reports 1174 HL and Bhagat Ram vs State of Himachal Pradesh, A.I.R. 1983 SC 454 referred to.
In the instant case, the punishment is so strikingly disproportionate as to call for and justify interference.
[523G] The Court order set aside.
The writ petition in the High Court allowed, and the impugned proceedings of Summary Court Martial and the consequent order and sentence quashed.
Appellant entitled to be reinstated with all monetary and service benefits.
[523H, 524A] (Note: on point 1.3 the finding is to be read with and subject to the subsequent order dated 10.8.88).


judgement:
Civil Appeal No. 668(N) of 1971, From the Judgment and order dated 14.1.1970 of the Bombay High Court in S.C.A. No. 789 of 1969.
E.C. Agarwala, Vijay Pandita and Atul Sharma for the Appellant.
The Judgment of the Court was delivered by KANIA, J.
This is an appeal by Special Leave against the judgment of a learned Single Judge of the Bombay High Court.
The facts necessary for the disposal of the Appeal can be shortly stated.
The Respondent before us, who was the petitioner before the Bombay High Court, is the owner of three agricultural lands described in the judgment appealed against, situated at Talkhed, Taluk Malkapur, District Buldana in the Vidarbha area of Maharashtra.
Originally, these fields belonged to one Hiralal who died in 1916.
Hiralal started the construction of a dharamshala and a temple in 1912 in the said lands which construction was completed by the Respondent 's mother during the minority of the Respondent.
The Respondent 's mother also constructed another dharamshala on a separate piece of land.
The facts on record show that Umaji, the father of the Appellant, was appointed a Pujari by the then landlord to worship the idols in the aforesaid temple and to look after the management of the dharamshalas on behalf of the landlord.
Under an agreement with the landlord, the aforesaid three agricultural lands were cultivated by Umaji but instead of being paid in cash for the services rendered by him to the landlord in the form of looking after the management of the property and worshipping in the temple, Umaji was allowed to cultivate the said fields and to take the crops.
The Appellant is the son of Umaji and records show that, after the death of Umaji, he was given the same work as Umaji on the same terms and conditions.
On 674 February 12, 1963, the Appellant was served with a notice calling upon him to hand over the belongings of the temple as well as the immovable property to the Respondent.
The Respondent then filed a suit for possession of the aforesaid lands in which the Appellant took a defence that he was a tenant of these lands and protected under the relevant legislation against eviction.
The issue whether the Appellant was the tenant of the said lands was framed and referred to the Tahsildar for decision.
The aforesaid issue was decided in the first instance by the Naib Tahsildar.
Before him the Appellant contended that he was a deemed tenant as understood under Section 6 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (hereinafter referred to as 'the Vidarbha Tenancy Act ').
It was contended by the Appellant that he was in lawful cultivation of the said agricultural lands and should be declared to be a tenant.
The Respondent, on the other hand, reiterated his claim that the Appellant was not a tenant.
The Naib Tahsildar passed an order on November 30, 1965 holding that the Appellant was the tenant in respect of the said lands because he was lawfully cultivating the said lands which belonged to the Respondent.
Against this order the Respondent herein filed an appeal.
The Sub Divisional officer, who decided the appeal, set aside the order of Naib Tahsildar and remanded the matter for fresh inquiry on several issues including the issue as to how the Appellant herein came to be in possession of the said lands.
The Appellant then filed a revision application before the Maharashtra Revenue Tribunal against this decision.
The Revenue Tribunal set aside the order of the Sub Divisional officer and restored the order of the Naib Tahsildar.
The Tribunal took notice.
Of the admission of the Respondent that the Appellant herein was cultivating the said lands lawfully and on this basis came to the conclusion that the Appellant herein was the tenant of the said lands.
This conclusion of the Tribunal was challenged by the Respondent herein before the Bombay High Court.
The learned Judge, who disposed of the Special Civil Application or writ petition noted that it was not in dispute that the Appellant was cultivating the said lands but he was doing so and appropriating the crop in lieu of payment of services which he rendered to the landlord as the Pujari worshipping the Gods in the said temple and looking after the management of the dharamshalas.
Instead of being paid in cash for these services, the Appellant was allowed to cultivate the fields and take the crops thereof.
The learned Judge came to the conclusion that, on these facts, the lawful cultivation of the fields by 675 the Appellant was referable to a particular contract which alone must govern the relationship between the parties.
That contract constituted or created a relationship of employer and employee.
It was held that the Appellant herein was an employee of the Respondent in his capacity as a Pujari and person looking after the management of the dharamshalas.
On these facts, the learned Judge came to the conclusion that the Appellant herein was not entitled to claim the rights of a deemed tenant, and held that the decision to the contrary arrived at by the Tribunal was erroneous and liable to be set aside.
The learned Judge allowed the writ petition and quashed the order made by the Tribunal and the Revenue Authorities and held that the Appellant had failed to prove that he was a tenant of the said agricultural lands.
It is this conclusion of the learned Judge which is challenged in this appeal.
The contention of Mr. Aggarwala, learned counsel for the Appellant, is that his client was admittedly in lawful possession of the lands in question and was cultivating the same at the relevant time.
In view of this, it must he held that he was a deemed tenant of the said lands under the provisions of Section 6 of the Vidarbha Tenancy Act and the Respondent was not entitled to evict him.
It was submitted by him that the learned Judge of the High Court who disposed of the Special Leave Application was in error when he proceeded on the footing that the Appellant was not the tenant of the said lands as the right to cultivate the lands and appropriate the produce was given to him and his father earlier as the Pujari of the aforesaid temple and for looking after the management of the dharamshalas and the said lands.
It was urged by him that even if the Appellant could be said to be a servant of the Respondent, he was admittedly in lawful personal cultivation of the said lands and was not paid in cash or kind but by way of a crop share, the crop share being equivalent to the entire crop.
The Respondent has not chosen to appear before us.
In order to examine the correctness of the aforesaid contentions of Mr. Aggarwala, we may, at this stage, take note of the relevant provisions of the Vidarbha Tenancy Act.
The term 'tenant ' is defined in sub section (32) of Section 2 of that Act as follows: "(32)`tenant ' means a person who holds land on lease and includes (a) person who is deemed to be a tenant under Sections 6, 7 or 8, 676 (b) a person who is a protected lessee or occupancy tenant and the word 'landlord ' shall be cons trued accordingly".
Under sub section ( 17) of Section 2, land, inter alia, means, land which is used or capable of being used for agricultural purposes and 13 includes the sites of farm building appurtenant to such land.
Subsection (1) of Section 6 which is the material provision before us runs as follows: "6.
Persons deemed to be tenants.
(1) A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not (a) a member of the owner 's family, or (b) a servant on wages payable in cash or kind but not in crop share or a hired labourer cultivating the land under the personal supervision of the owner or any member of the owner 's family, or (c) a mortgage in possession.
" Section 41 of the Vidarbha Tenancy Act deals with the right of a tenant to purchase land held by him as a tenant.
Under the provisions of that Act, a tenant other than an occupancy tenant shall be entitled to purchase from the landlord the land held by him as a tenant and cultivated by him personally except whether the landlord belongs to any category specified in sub section (2).
Section 46 of the Vidarbha Tenancy Act, inter alia, provides that with effect on and from the first day of April, 1961, the ownership of all lands held by tenants which they are entitled to purchase from their landlords under the provisions of Chapter III of the Vidarbha Tenancy Act shall stand transferred to ( i and vested in such tenants.
As far as the case before us is concerned as we have already pointed out that the Appellant was admittedly cultivating the lands in question and was not a member of the landlord 's family nor was he a hired labourer.
The landlord did not belong to any of the classes specified in sub section (2) of Section 41.
The aforesaid cultivation was 677 clearly lawful because the Respondent to whom the lands belonged had permitted him to do so.
It is true that the record shows that this right to cultivate the land and appropriate the produce was given to the Appellant because of the services he was performing as a Pujari of the aforesaid temple of the Respondent and as he was looking after the dharamshalas.
By reason of these facts, it might be said that he was cultivating the said lands as a servant of the Respondent, but he was not being paid any wages in cash or kind but by way of a crop share, the share being the entire crop.
In these circumstances, he must be held to be a deemed tenant of the said lands under the provisions of Section 6 of the Vidarbha Tenancy Act.
The fact of his cultivating the land as a servant of the Respondent would make no difference because he was being paid for his services by way of a crop share and hence was not covered by the provisions of clause (b) of sub section (1) of Section 6.
The learned Judge of the High Court was in error in coming to the conclusion that, merely because the Appellant was a servant of the Respondent, he could not be held to be a tenant in respect of the said lands.
The learned Judge altogether failed to notice that although the appellant was a servant, he was not given wages payable either in cash or kind but by way of a crop share and hence not covered by the exception carved out by clause (b) of sub section (1) of Section 6.
From the observations made by the learned Judge, it appears that he proceeded on the wrong footing that in order to be a deemed tenant, a person must show that his lawful cultivation owes its origin to some sort of tenancy.
In fact, the whole aim of Section 6 is to confer deemed tenancy upon persons who are not already tenants of the land in question.
We may point out that this conclusion finds some support from the decision of this Court in Dahya Lal and others vs Rasul Mohammed Abdul Rahim, [ 1963] 3 S.C.R. l at pp 6 7 decided by a Bench of five learned Judges of this Court.
In that case the provision which came up for consideration was Section 4 of the Bombay Tenancy and Agricultural Land Act, 1948, the material portion of which runs as follows .
"A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not .
It was held that this Act encompassed with its beneficent provisions not only tenants who held land for purpose of cultivation under contracts from the land owners but persons who are deemed to be the tenants.
678 In the result, the Appeal is allowed.
The impugned judgment and order of the High Court are set aside and the order of Naib Tahsildar, confirmed by Revenue Tribunal, is restored.
There will be no order as to the costs of the Appeal.
S.L. Appeal allowed.

dataset_name: IN-Abs

summary:
% Under an agreement with the respondent landlord, the appellant had been appointed to do worshipping in a temple as pujari to look after the management of two dharamshalas and to cultivate three agricultural, lands, and for all these services, he had been allowed to take crop share the whole crop from the lands cultivated by him, instead of his being paid any wages in cash.
The respondent filed a suit for possession of the agricultural lands.
The appellant 's defence was that he was a deemed tenant as understood under section 6 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, and was in lawful cultivation of the lands.
The Naib Tahsildar, who decided the suit, passed an order, holding the appellant to be a tenant.
The Sub Divisional officer, in appeal by the respondent, set aside the order of the Naib Tahsildar and remanded the matter.
Against the order of the Sub Divisional officer, the appellant appealed in revision to the Maharashtra Revenue Tribunal.
The Revenue Tribunal set aside the order of the Sub Divisional officer and restored that of the Naib Tahsildar.
The respondent moved the High Court.
The High Court decided that the appellant was not entitled to claim the rights of a deemed tenant, and quashed the orders of the authorities below holding the contrary view.
The appellant appealed to this Court by Special Leave against the order of the High Court.
Allowing the appeal, the Court, ^ HELD: The appellant was lawfully cultivating the lands, having been permitted to do so by the landlord.
He was not a member of the landlord 's family, nor was he his hired labourer.
The landlord did not belong to any of the classes specified in Sub Section (2) of section 41.
The appellant was rendering service as pujari and the service of looking after the dharamshalas, and for these services, he had been given the right to cultivate the lands and appropriate the crop share the entire 673 crop instead of being paid any wages in cash.
The appellant was not hit by the provisions of clause (b) of Sub section (1) of section 6 of the Act, and he must be held to be a deemed tenant under the provisions of section 6.
[676G H;677B C] Dahya Lal and others vs Rasul Mohammad Abdul Rahim, ; at 6, 7, referred to.


judgement:
ition No. 373 of 1986.
(Under Article 32 of the Constitution of India).
A.K. Goel, E.X. Joseph and N.S. Das Bahl for the petitioners.
V.C. Mahajan, Girish Chandra, Mrs. Sushma Suri and Miss A. Subhashini for the Respondents.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
These petitions are filed on behalf of persons who are working as 'Daily Rated Casual Labour ' in the Posts and Telegraphs Department.
The 'Daily Rated Casual Labour ' includes three broad categories of workers, namely, unskilled, semiskilled and skilled.
The unskilled labour consists of safai workers, helpers, peons etc.
and are mostly engaged in digging, carrying loads and other similar types of work.
The semi skilled labour consists of carpenters, wiremen, draftsmen, A.C. mechanics etc.
who have technical experience but do not hold any degree or diploma.
The skilled labour consists of labour doing technical work, who hold requisite degrees/diplomas.
The principal complaint of the petitioners is that even though 602 many of them have been working for the last ten years as casual A labourers, the wages paid to them are very low and far less than the salary and allowances paid to the regular employees of the Posts and Telegraphs Department belonging to each of the categories referred to above and secondly no scheme has been prepared by the Union of India to absorb them regularly in its service and consequently they have been denied the benefits, such as increments, pension, leave facilities etc.
which are enjoyed by those who have been recruited regularly.
They allege that they are being exploited by the Union of India.
They have produced the order of the Director General, Posts and Telegraphs Department bearing No. 28 II/77 SR/STN dated 15.5.1980 which prescribes the rate or rates of wages payable to the casual labour in the Telecommunication Wing of the Department.
The relevant part of the order reads thus: "No. 28 II/77 SR/STN Office of the Director General Posts and Telegraphs, New Delhi 1, 15.5.1980 To . . . . .
Subject: Increase in rate of daily wages for the casual labour employed in the Telecom.
Wing of P & T. The employment of casual labour in the Telecom.
Wing, who are working for a reasonably long period, on continuous basis was one of the items under discussion in the P & T Department council (JCM).
The potential of absorption of the large force of casual mazdoor in regular grade was limited on the Telecommunication side.
As an alternative to regular absorption it was proposed that a wage related to the minimum of the pay scale of Time Scale Group D cadre with the benefit of neutralisation for the rise in cost Index as applicable to regular employees may be effected.
603 2.
The President is now pleased to decide that the A rates of daily wages for the casual labour employed in the Telecom.
Wing of P & T will be as follows: (i) Casual labour who has not completed 720 days of service in a period of three years at the rate of 240 days per annum with the Department as on 1.4.80.
_________________________________________________ No change.
They will continue to be paid at the approved local rates.
(ii) Casual labour who having been working with the Department from 1.4.77 or earlier and have completed 720 days of service as on 1.4.80.
__________________________________________________ Daily wages equal to 75% of 1/30th of the minimum of Group time Scale plus admissible D.A. _________________________________________________ (iii) Casual labour who has been working in the Department from 1.4.1975 or earlier and has completed 1200 days of service as on 1.4.1980.
_________________________________________________ Daily wages equal to 1/30th of the minimum of the Group Time Scale plus 1/30th of the admissible D.A. (iv) All the casual labourers will, however, continue to be employed on daily wages only.
(v) These orders for enhanced rates for category (ii) & (iii) above will take effect from 1.5.80.
(vi) A review will be carried out every year as on the Ist of April for making officials eligible for wages indicated in paras (ii) and (iii) above.
(vii) The above arrangement of enhanced rates of daily wages will be without prejudice to absorption of causal mazdoors against regular vacancies as and they occur . . . . . . . . . 604 sd/ (M.S. Yegneshwaran) Asst.
Director General (Stn.)" The above order is followed by the another order bearing No. 10 4/83 R dated 26.7.1984 which reads as under: To All General Managers Telecom.
Subject: Increase in rates of daily wages for the casual/ semi skilled/skilled labour.
Sir, The employment of the casual semi skilled/skilled labour in the Telecom.
Wing who are working for a reasonably long period, on continuous basis has been engaging the attention of this Directorate for quite sometime past.
The potential of absorption of labour of the type in regular grade was limited on the Telecommunication side.
As an alternative to regular absorption the need was being felt that wage related to the minimum of the pay scale of semi skilled skilled casual labour with the benefit of neutralisation for the rise in cost index as applicable to regular employees may be effected as is at present available to casual un skilled labour working under the P & T Department.
The President is now pleased to decide that the rates of daily wages for the semi skilled/skilled casual labour employed in the Telecom.
Wing of the P & T Department will be as under: (i) Casual semi skilled/skilled labour who has not completed 720 days of service over a period of three years or more with the department.
_________________________________________________ No change.
They will continue to be paid at the approved local rates.
(ii) Casual semi skilled/skilled labour who has completed 605 720 days of service over a period of three years or more.
_________________________________________________ Daily wage equal to 75% of 1/30th of the minimum of the scale of semi skilled (Rs. 210 270) or skilled (Rs.260 350) as the case may be, plus admissible DA/ADA thereon.
(iii) Casual Labour who has completed 1200 days of service over a period of 5 years or more.
__________________________________________________ Daily wage equal to 1/30th of the minimum of the pay scale of semi skilled (Rs.210 270) skilled (Rs.260 350) as the case may be, plus DA/ADA admissible thereon.
(iv) All the casual semi skilled/skilled labour will, however continue to be employed on daily wages only.
(v) These orders for enhanced rates for category (ii) and (iii) above will take effect from 1.4.1984.
(vi) A review for making further officials eligible for wages vide (ii) and (iii) above will take effect as on Ist of April every year.
(vii) If the rates calculated vide (ii) and (iii) above happen to be less than the approved local rates, payment shall be made as per approved local rates for above categories of labour.
(viii) The above arrangements of enhanced rates of daily wages will be without prejudice to absorption of casual semi skilled/skilled labour against regular vacancies as and when they occur.
(ix) The benefit of increased rates of daily wages will not be admissible to the casual semi skilled/skilled labour in whose case the continuous spells of duty are intervened by a period of more than six months.
The absence of more than six months may, however, be condoned by the Divisional Engineer on one of the two grounds namely, prolonged illness on production of medical certificates or nonemployment due to non availability of work.
In the case of 606 absence beyond six months at a time on account of illness for the past years, the production of medical certificate may not be insisted upon and the period of break may be condoned if the Divisional Engineer is satisfied about the genuineness of the absence 4.
These enhanced rates of daily wages are applicable to the semi skilled/skilled casual labour who strictly conform to the job content of corresponding regular posts in scales of Rs.210 270 and Rs.260 350 as the case may be and that there should not be any variation in the respective job con tent.
In case of slight variation/doubt cases may be referred to the .
P. & T for review .
Yours faithfully, (V. Ramaswamy) Assistant Director General (Stn. )" Aggrieved by the discrimination made against them by these orders which very heavily weighed against them, the petitioners submitted a statement of demands through the Secretary General, BPTEF, New Delhi, of which they were members, claiming regularisation of casual labourers, payment of interim relief, payment of bonus, supply of dresses, leave and medical facilities etc.
They received a reply from the Department on January 10, 1986 which read as under : "Sub: Demands of casual labour daily rated workers.
Ref: Your letter No. PF/Casual Labour/86 dated 13.
12. 1985.
Please refer to your above cited letter.
The position regarding the various demands in your above cited letter is as below: (i) Regularisation of Casual Labour.
This is being done as per existing instructions of department of Personnel & Training as against the vacancies as and when they arise.
607 (ii) Payment of interim relief.
Revision of wages is done once in a year for casual labourers of category 1 (those who have not completed 720/120O days in 3/5 years) in the month of April taking into account the prevailing local rates in consultation with the local authorities.
However, in respect of categories (ii) and (iii) i.e. for those who have completed 720/1200 days in 3/5 years, the revision is done as and when DA/ADA.
Interim Reliefs are being granted to regular staff at the rate of 3/4th full of the minimum of the scale of regular class IV employees . . . (vii) Regularisation of skilled/semi/skilled/ unskilled labour in similar grade: Provision has been made in the recruitment rules whereever possible to give preference in recruitment for corresponding semi skilled/skilled workers.
Regarding unskilled labour, they will be taken as Group staff as and when vacancies arise, on their becoming eligible for absorption as per instruction of DGP & T. (section KRISHAN) DIRECTOR (ST) 10.1.1986.
" The petitioners were not satisfied with the above reply received by them.
They, therefore, filed the above petitions and the first of them bearing Writ Petition No. 302 of 1986 was filed on 5.2.1986 for the issue of a writ in the nature of mandamus to the Union of India to direct it to pay to the petitioners same salary and allowances and other benefits as are being paid to the regular and permanent employees of the Union of India in the corresponding cadres and to direct the Union of India to regularise the service of the casual labour who had been in continuous service for more than six months.
The allegation made in the petitions to the effect that the petitioners are being paid wages far less than the minimum pay payable under the pay scales applicable to the regular employees belonging to corresponding cadres is more or less admitted by the respondents.
The respondents, however, contend that since the petitioners belong to the category of casual labour and are not being regularly employed, they 608 are not entitled to the same privileges which the regular employees are enjoying.
It may be true that the petitioners have not been regularly recruited but many of them have been working continuously for more than a year in the Department and some of them have been engaged as casual labourers for nearly ten years.
They are rendering the same kind of service which is being rendered by the regular employees doing the same type of work.
Clause (2) of Article 38 of the Constitution of India which contains one of the Directive Principles of State Policy provides that "the State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vacations." Even though the above Directive Principle may not be enforceable as such by virtue of Article 37 of the Constitution of India, it may be relied upon by the petitioners to show that in the instant case they have been subjected to hostile discrimination.
It is urged that the State cannot deny at least the minimum pay in the pay scales of regularly employed workmen even though the Government may not be compelled to extend all the benefits enjoyed by regularly recruited employees.
We are of the view that such denial amounts to exploitation of labour.
The Government cannot take advantage of its dominant position, and compel any worker to work even as a casual labourer on starving wages.
It may be that the casual labourer has agreed to work on such low wages.
That he has done because he has no other choice.
It is poverty that has driven him to that State.
The Government should be a model employer.
We are of the view that on the facts and in the circumstances of this case the classification of employees into regularly recruited employees and casual employees for the purpose of paying less than the minimum pay payable to employees in the corresponding regular cadres particularly in the lowest rungs of the department where the pay scales are the lowest is not tenable.
The further classification of casual labourers into three categories namely (i) those who have not completed 720 days of service; (ii) those who have completed 720 days of service and not completed 1200 days of service and (iii) those who have completed more than 1200 days of service for purpose of payment of different rates of wages is equally untenable.
There is clearly no justification for doing so.
Such a classification is violative of Articles 14 and 16 of the Constitution.
It is also opposed to the spirit of Article 7 of the International Covenant on Economic, Social and Cultural Rights, 1966 which exhorts all States parties to ensure fair wages and equal wages for equal work.
We feel that there is substance in the contention of the petitioners 609 In Dhirendra Chamoli and Another vs State of U.P., this Court has taken almost a similar view with regard to the employees working in the Nehru Yuvak Kendras who were considered to be performing the same duties as Class IV employees.
We accordingly direct the Union of India and the other respondents to pay wages to the workmen who are employed as casual labourers belonging to the several categories of employees referred to above in the Postal and Telegraphs Department at the rates equivalent to the minimum pay in the pay scales of the regularly employed workers in the corresponding cadres but without any increments with effect from 5th of February, 1986 on which date the first of the above two petitions, namely, Writ Petition No. 302 of 1986 was filed.
The petitioners are entitled to corresponding Dearness Allowance and Addl.
Dearness Allowance, if any, payable thereon.
Whatever other benefits which are now being enjoyed by the casual labourers shall continue to be extended to them.
India is a socialist republic.
It implies the existence of certain important obligations which the State has to discharge.
The right to work, the right to free choice of employment, the right to just and favourable conditions of work, the right to protection against unemployment, the right of every one who works to just and favourable remuneration ensuring a decent living for himself and for family, the right of every one without discrimination of any kind to equal pay for equal work, the right to rest, leisure, reasonable limitation on working hours and periodic holidays with pay, the right to form trade unions.
and the right to join trade unions of one 's choice and the right to security of work are some of the rights which have to be ensured by appropriate legislative and executive measures.
It is true that all these rights cannot be extended simultaneously.
But they do indicate the socialist goal.
The degree of achievement in this direction depends upon the economic resources, willingness of the people to produce and more than all the existence of industrial peace throughout the country.
Of those rights the question of security of work is of utmost importance.
If a person does not have the feeling that he belongs to an organization engaged in production he will not put forward his best effort to produce more.
That sense of belonging arises only when he feels that he will not be turned out of employment the next day at the whim of the management.
It is for this reason it is being repeatedly observed by those who are in charge of economic affairs of the countries in different parts of the world that as far as possible security of work should be assured to the employees so that they may contribute to the maximisation of production.
It is again for this reason that managements and the Government agencies in particular should not allow 610 workers to remain as casual labourers or temporary employees for an unreasonably long period of time, where is any justification to keep persons as casual labourers for years as is being done in the Postal and Telegraphs Department? Is it for paying them lower wages? Then it amounts to exploitation of labour.
Is it because you do not know that there is enough work for the workers? It cannot be so because there is so much of development to be carried out in the communications department that you need more workers.
The employees belonging to skilled, semi skilled and unskilled classes can be shifted from one department to another even if there is no work to be done in a given place.
Administrators should realise that if any worker remains idle on any day, the country loses the wealth that he would have produced during that day.
Our wage structure is such that a worker is always paid less than what he produces.
So why allow people to remain idle? Anyway they have got to be fed and clothed.
Therefore, why don 't we provide them with work? There are several types of work such as road making, railway construction, house building, irrigation projects, communications etc.
which have to be undertaken on a large scale.
Development in these types of activities (even though they do not involve much foreign exchange) is not keeping pace with the needs of society.
We are saying all this only to make the people understand the need for better management of man power (which is a decaying asset) the non utilisation of which leads to the inevitable loss of valuable human resources.
Let us remember the slogan: "Produce or Perish".
It is not an empty slogan.
We fail to produce more at our own peril.
It is against this background that we say that non regularisation of temporary employees or casual labour for a long period is not a wise policy.
We, therefore, direct the respondents to prepare a scheme on a rational basis for absorbing as far as possible the casual labourers who have been continuously working for more than one year in the Posts and Telegraphs Department.
The arrears of wages payable to the casual labourers in accordance with this order shall be paid within four months from today.
The respondents shall prepare a scheme for absorbing the casual labourers, as directed above, within eight months from today.
These petitioners are accordingly disposed of.
N.P.V. Petitions disposed of.

summary:
% International Covenant on Economic, Social and Cultural Rights, 1966: Article 7 Casual labour Justifiable classification for payment of wages Necessity of Non regularisation of service Not wise policy Necessity for absorption as permanent workers.
The petitioners who were working as 'Daily Rated Casual Labour ' in the Posts and Telegraphs Department, were categorised as unskilled, semi skilled and skilled workers.
By the orders of the D.G., Post and Telegraphs Department No. 28 II/77 SR/STM dated 15.5.80 and 10 4/83 R dated 26.7.84 they were further classified into (i) those who had not completed 720 days of service; (ii) those who had comp leted 720 days and not completed 1200 days of service, and (iii) those who had completed more than 1200 days of service, and were granted different rates of wages as laid down therein.
Aggrieved by these orders, the petitioners submitted a statement of demands through their federation to the authorities, claiming regularisation, payment of interim relief and bonus, supply of dresses, leave and medical facilities etc.
Not satisfied with the reply received by them, the petitioners filed writ petitions, for the issue of a writ in the nature of mandamus to the Union of India and to direct it to pay them same salary, allowances, and other benefits as were being paid to regular and permanent employees of the Union of India in corresponding cadres and to regularise the 599 service of the casual labour who had been in continuous service for more than 6 months.
Their principal complaint was that even though many of them had been working for the last ten years as casual labourers, the wages paid to them were very low and far less than the salary and allowances paid to regular employees of the Posts and Telegraphs Department belonging to the equivalent categories and, secondly that no scheme had been prepared by the Union of India to absorb them regularly in its service and they had been denied the benefits of increments, pension, leave facilities etc.
which were enjoyed by those who had been recruited regularly.
The petitioners were opposed by the respondents contending that since the petitioners belonged to the category of casual labour and were not being regularly employed, they were not entitled to the same privileges which regular employees were enjoying.
Disposing of the writ petitions, ^ HELD: 1.1 The classification of employees in the present case into casual employees and regularly recruited employees for the purpose of paying less than the minimum pay payable to employees in the corresponding regular cadres particularly in the lowest rungs of the department, where the pay scales are the lowest is not tenable.
The further classification of casual labourers into three categories, namely, (i) those who have not completed 720 days of service; (ii) those who have completed 720 days of service and not completed 1200 days of service, and (iii) those who have completed more than 1200 days of service for the purpose of payment of different rates of wages is equally untenable.
There is clearly no justification for doing so.
Such a classification is violative of Articles 14 and 16 of the Constitution.
It is also opposed to the spirit of Article 7 of the International Covenant on Economic, Social and Cultural Rights, 1966 which exhorts all States, parties to the Covenant to ensure fair wages and equal wages for equal work.
[608E H] 1.2 The State cannot deny at least the minimum pay in the pay scales of regularly employed workmen even though the Government may not be compelled to extend all benefits enjoyed by regularly recruited employees.
Such denial amounts to exploitation of labour.
[608Dl 1.3 The Government should be a model employer.
It cannot take advantage of its dominant position, and compel any worker to work 600 even as a casual labourer on starving wages.
It may be that the casual labourer has agreed to work on such low wages.
That he has done, because he has no other choice.
It is poverty that has driven him to that state.
[608E Fl 1.4 It may be that the petitioners have not been regularly recruited, but many of them have been working continuously for more than a year in the Department, and some of them have been engaged as casual labourers for nearly ten years.
They are rendering the same kind of service which is being rendered by the regular employees doing the same type of work.
[608A B] 1.5 Even though the Directive Principle contained in Article 38(2) may not be enforceable as such by virtue of Article 37 of the Constitution of India, it may be relied upon to show that they have been subjected to hostile discrimination.
[608C ] Dhirendra Chamoli and Another vs State of U.P., [1986] 1 SCC V 637, relied on.
2.1 Non regularisation of temporary employees or casual labour for a long period is not a wise policy.
610E F] 2.2 India is a socialist republic.
It implies the existence of cer tain important obligations which the State has to discharge.
Many rights like right to work, equal pay for equal work, security of work, etc.
have to be ensured by appropriate legislation and executive measured.
[609D E] 2.3 If a person does not have the feeling that he belongs to an organisation engaged in production, he will not put forward his best effort to produce more.
That sense of belonging arises only when he feels that he will not be turned out of employment the next day at the whim of management.
Security of work should as far as possible be assured to the employees so that they may contribute to the maximisation of production.
Managements and the Governmental agencies in particular should not allow workers to remain as casual labourers or temporary employees for an unreasonably long period of time.
[609G H; 610A] 2.4 The employees belonging to skilled, semi skilled and unskilled classes can be shifted from one department to another even if there is no work to be done in a given place.
Administrators should realise even as a casual labourer on starving wages.
It may be that the casual labourer has agreed to work on such low wages.
That he has done, because he has no other choice.
It is poverty that has driven him to that state.
[608E F] 601 that if any worker remains idle on any day, the country loses the wealth that he would have produced during that day.
Our wage structure is such that a worker is always paid less than what he produces.
[610B C] 3.
The Union of India and the other respondents are directed to pay wages to the workmen who are employed as casual labourers at the rate equivalent to the minimum pay in the pay scales of the regularly employed workers in the corresponding cadres but without any increments with effect from 5th of February, 1986 and corresponding Dearness Allowance and Addl.
Dearness Allowances, if any, payable thereon.
Other benefits which are now being enjoyed by the casual labourers shall continue to be extended to them.
The arrears of wages payable shall be paid within four months.
[609B C; 610G] The respondents are directed to prepare a scheme for absorbing as far as possible the casual labourers who have been continuously working for more than one year in the Posts and Telegraphs Departments 610 Fl


judgement:
ivil Appeal Nos.
2255 56 of 1979.
From the Judgment and order dated 20.12.1978 of the Rajasthan High Court in Special Appeal Nos. 40 and 39 of 196.
V.M. Tarkunde, Tapas C. Ray, Chandmal Lodha, S.K. Jain, Dalveer Bhandari and Badridas Sharma for the appearing parties.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
These are appeals by special leave.
Two of them being Civil Appeals 2255 and 2256 of 1979 are by the Municipal Board of Abu Road.
The rest of the appeals are by assessees living within the municipal area of Sujangarh.
The common ques 586 tion involved in these appeals is as to whether the levy of octroi by different municipalities within the State of Rajasthan on varying basis some on weight of the material and others on the ad valorem basis of the price thereof at varying rates is valid in law.
l he High Court decided against the Abu Road municipality while a different bench of that Court in the cases of Sujangarh municipality decided in its favour on the same question.
Entry 52 of List II of Schedule VII read with Article 246(3) of the Constitution authorises the State Legislature to raise a tax on the entry of goods into a local area for consumption, use or sale.
The Rajasthan Municipalities Act, 1959 (hereinafter referred to as the Act) in Chapter VII makes provisions for imposition of taxes.
Section 104 deals with obligatory taxes while section 105 authorises imposition of other taxes.
As far as relevant, section 104 provides: "(1) Every Board shall levy, at such rate and from such date as the State Government may in each case direct by notification in the official gazette and in such manner as is laid down in this Act and as may be provided in the rules made by the State Government in this behalf, the following taxes, namely (i) . . . . . . (ii) an octroi on goods and animals brought within the limits of the municipality for consumption, use or sale therein; and (iii). . . . . . . . . . . (2) A direction under sub section (1) may provide for the levy of taxes at different rates in different municipalities having regard to their varying local conditions and needs, and on the same considerations and by a like direction, the State Government may, from time to time (i) vary uniformally or differently in relation to different municipalities, the rates of taxes levied, or ( (ii). . . . . . 587 Abu Road municipality prior to 1956 was a part of the State of Bombay and with effect from Ist November 1956, as a result of the States Reorganisation Act of 1956, became a part of the State of Rajasthan.
While within the State of Bombay the Abu Road municipality had prescribed octroi duty on cloth at the rate of 1.9 annas per cent ad valorem and the rate continued till it was varied after promulgation of the Rajasthan Municipalities Act of 1959.
The rates in cities like Jaipur were on the basis of weight.
Judicial notice can be taken of the fact that the areas which now constitute the State of Rajasthan prior to independence of India were independent States of different dimensions and the local conditions and needs of the people inhabiting those areas considerably varied.
There were 13 different Acts then in vogue governing the municipalities within that State.
The Rajasthan Municipalities Act was, therefore, introduced to consolidate and amend the law relating to municipalities in that State.
In February, 1962, the State Government by notification dated 13th February, 1962 issued under section 104 of the Act fixed the rate of octroi at 0.50 paise in place of 1.9 annas with effect from 15th February, 1962.
By notification dated 10th of April, 1964, published in the Gazette on 20th of August, 1964, the State Government in exercise of powers under section 104 of the Act revised the rates of octroi and so far as the municipal board of Abu Road was concerned, Item 62 of the Schedule provided the rate of 1 per cent ad valorem on cloth.
This led to the challenge before the High Court.
The leamed Single Judge who dealt with the writ petitions relied upon the provisions of section 104 of the Act as it then stood and came to hold that the provisions of section 104(1) of the Act were valid but the notification in respect of the municipal board of Abu Road relating to cloth was bad.
During the pendency of the appeals before the Division Bench of the High Court, sub section (2) of section 104 was added by section 12 of the Rajasthan Municipalities (Amendment) Act of 1978.
The Division Bench overlooked this amendment and reiterated the reasons of the learned Single Judge and dismissed the appeals by judgment dated 20th of December, 1978.
The state Government authorised levy of octroi on all types of cloth at the rate of one and a half per cent ad valorem in respect of Sujangarh Municipal Board by notification dated 3rd January,1976.
34 writ petitions were filed before the High court challenging the levy.
It was contended inter alia that there was unreasonable discrimination between the citizens and traders of cloth within Sujangarh Municipal area on the one hand and those of Jodhpur, Jaipur and other named towns on the other, as by authorising levy of octroi at different rates 588 and on different basis discrimination resulted.
Reliance was placed on the decision in the Abu Board municipal cases but the Single Judge as also the Division Bench did not entertain the challenge by relying upon the amended provision of section 104 of the Act.
That is how that group of appeals too has come before this Court by special leave.
There is no dispute as to exigibility of octroi.
Every municipality under the Act is a body corporate.
Section 7 of the Act provides for it.
People residing within each municipal area can be classified as one group different from those residing in any other municipality since octroi is to be levied by the municipality as provided in section 104(1) of the Act subject to the control regarding the rates of levy by the State Government.
The plea of discrimination on the basis of the rates prevalent in another municipality cannot be entertained.
The scheme in section 104 of the Act takes note of the position that local conditions and needs varied and accordingly both in the proviso to sub section ( I) as also in sub section (2) itself, emphasis on that feature has been put.
It is thus open to the State Government on the basis of local conditions and needs to prescribe different rates in relation to different municipalities in the matter of rates of taxes to be levied.
Varying duty of octroi is, therefore, not open to challenge.
The Division Bench while dealing with the appeals of Abu Road municipality should have taken note of the amendment of sub section (2) with retrospective effect.
In some of the municipalities the levy is on the value of the goods while in others it is on the basis of the weight.
Here again, the State Government seems to have applied its mind and has authorised charge of octroi on weight basis taking into consideration the special circumstances.
In bigger municipalities where there are wholesale markets particularly of cloth, a reduced rate of octroi has been prescribed to encourage larger import.
In smaller municipalities where the import is for direct consumption the levy is on ad valorem basis at a higher rate.
The State Government seems to have also taken into consideration that in smaller municipalities there is not much of demand for costly and fine clothes which have higher price while the position is otherwise in bigger municipal areas.
This appears to be the justification for adopting the weight basis in respect of larger municipalities and ad valorem basis for the smaller municipalities.
This again seems to be a legitimate basis and we do not think any valid objection is available against this differential treatment.
Law is well settled that if unequals are treated unequally there is no discrimination and Article 14 of the Constitution is not available to be invoked.
589 In view of what we have said above, the appeals preferred by A Municipal Board of Abu Road will have to succeed.
They are allowed.
Other group of appeals relating to Sujangarh Municipality have to be dismissed.
Parties are directed to bear their own costs throughout.
Before we part with the cases we would like to suggest that in the backdrop of a consolidating and uniform municipal legislation now operating in the field, the State Government may rationalise the rate structure prevalent in different municipal areas so that assessment of octroi would be convenient, a common method would be adopted and the challenge which is raised now and again though we have made it clear that it would be competent for the State Government to allow varying rates in different municipalities keeping the provisions in section l04 of the Act in view may be avoided.
H.L.C. Appeals allowed.

summary:
% By a notification issued in 1964 under section l04 of the Rajasthan Municipalities Act, 1959, the State Government revised the rate of octroi levied on cloth by the municipal board of Abu Road which was challenged by a batch of writ petitions.
A Single Judge of the High Court held that the provisions of section l04(1) of the Act were valid but the notification in respect of the municipal board of Abu Road relating to cloth was bad.
During the pendency of the appeals before the Division Bench sub section
(2) of section l04 was added by section 12 of the Rajasthan Municipalities (Amendment) Act of 1978.
The Division Bench overlooked this amendment and reiterated the reasons of the Single Judge and dismissed the appeals.
By another notification issued in 1976, the State Government revised the levy of octroi on all types of cloth in respect of Sujangarh Municipal Board which was challenged by another batch of writ petitions relying on the decision in the Abu municipal board cases; but the Single Judge, as also a different Division Bench which dealt with the matter did not entertain the challenge in view of the amended provision of section l04 of the Act.
These two groups of appeals arose from the two batches of writ petitions aforesaid.
Allowing the appeals preferred by the Municipal Board of Abu Road and dismissing the appeals relating to Sujangarh Municipality.
^ HELD: There is no dispute as to exigibility of octroi.
Every municipality under section 7 of the Rajasthan Municipalities Act, 1959 is a body corporate.
People residing within each municipal area can be classified as one group different from residing in any other municipality since octroi is to be levied by the municipality as provided in section l04(1) subject to the control regarding the rates of levy by the State Government.
The plea of discrimination on the basis of the rates prevalent in another municipality cannot be entertained.
The scheme in section 104 takes note of the position that local conditions and needs varied and accord 585 ingly both in the proviso to sub section
(1) as also in sub section
(2) itself, emphasis on that feature has been put.
It is thus open to the State Government on the basis of local conditions and needs to prescribe different rates in relation to different municipalities in the matter of taxes to be levied, varying duty of octroi is, therefore, not open to challenge.
The Division Bench while dealing with the appeals of Abu Road municipality should have taken note of the amendment of sub section
(2) with retrospective effect.
[588B E] 2.
In some municipalities the levy is on the value of goods while in others it is on the basis of weight.
Here again, the State Government seems to have applied its mind and has authorised charge of octroi on weight basis taking into consideration the special circumstances.
In bigger municipalities where there are wholesale markets particularly of cloth.
a reduced rate of octroi has been prescribed to encourage larger import.
In smaller municipalities where the import is for direct consumption the levy is on ad valorem basis at a higher rate.
The State Government seems to have also taken into consideration that in smaller municipalities there is not much demand for costly and fine cloth which have higher prices while the position is otherwise in bigger municipal areas.
This appears to be the justification for adopting the weight basis in respect of larger municipalities and ad valorem basis for the smaller municipalities.
This seems to be a legitimate basis and we do not think any valid objection is available against this differential treatment.
Law is well settled that if unequals are treated unequally there is no discrimination and article 14 of the Constitution is not available to be invoked.
[588E H]