judgement:
ivil Appeal No. 2377 of 1987.
From the Judgment and Order dated 29.10.1986 of the Allahabad High Court in F.A. No. 493 of 1984.
J.P. Goyal, Rajesh and V.K. Verma for the Appellant.
Mrs. Rani Chhabra for the Respondent.
The Judgment of the Court was delivered by VENKATACHALIAH, J.
This appeal, in a matrimonial cause, is by the husband, and is directed against the Judgment and Decree, dated 29.10.1986, of High Court of Allahabad in First Appeal No. 493 of 1984, allowing the Respondent wife 's appeal and reversing the decree of dissolution of marriage dated 31.7.1984 granted by the Second Additional District Judge, Jhansi, in Original Suit No. 34 of 1983 of his file.
Appellant 's suit for a decree of dissolution of his marriage with the respondent on the ground envisaged in Section 13(1)(iii) of the (Act) that respondent suffered from a mental disorder of such a kind that rendered Respondent unfit for married life and that petitioner could not reasonably be expected to live with her had been decreed by the Court of first instance but dismissed by the High Court in appeal.
Appellant husband has come up by Special Leave.
The marriage between appellant, Ram Narain Gupta, and respondent, Rameshwari Gupta, was solemnised on 17.6.1979 at Jhansi.
The suit for the dissolution of the marriage was filed on 14.7.1983 on the allegation that the wife was a schizophrenic.
The High Court, while holding it probable that the wife did suffer from some such mental disorder, however, was persuaded to the view that appellant had not established the requisite extent and degree of the mental disorder recognised by law as constituting a legal justification for the dissolution of the marriage.
In the suit appellant had also alleged that the respondent was of PG NO 916 unsound mind even before the marriage and that this fact had been concealed from him at the time of the marriage.
This alternative case that the marriage was itself induced by the suppression of the material facts pertaining to the mental state of the bride and that, accordingly, the marriage required to be annuled was, however, not pressed before the High Court.
In his suit appellant pleaded that the respondent suffered from a mental disorder, psychiatrically recognised as `schizophrenia ', which was of such severeity as to render Respondent unsociable and given to violent propensities, that the wife had been treated by the doctors at the Department of Psychiatry at the Medical College, Jhansi, and that despite competent professional treatment the mental condition of respondent continued to deteriorate to the point of making manifest in her suicidal tendencies and aggressive violent behaviour towards others.
Appellant, therefore, averred that the mental disorder of the respondent was of such a kind and to such extent that appellant could not reasonably be expected to live with respondent as man and wife.
Respondent in her written statement denied the imputation of insanity and commission of several overt acts indicative of mental disorder alleged against her and contended that appellant 's determination to get rid of her was attributable to the domestic discord between her on the one side and the mother and sisters of the appellant on the other.
Indeed, she also entered the witness box to testify to and substantiate her defence.
She was subjected to searching cross examination .
The Trial Court framed the necessary and material issues stemming from the pleadings.
On his side, appellant called a certain Dr. Ganesh Datt Shukla, (PW.
l) Head of the Diptt.
of Psychiatry.
Maharani Laxmi Bai Medical College to support his version.
Appellant himself tendered evidence as PW 2.
He also examined a certain Gyasi Ram (PW 3) said to be an artisan who claimed that during one of his visits to appellant 's house for some odd job.
he had seen respondent beating up small children and conducting herself in a disorderly manner.
Appellant also called a certain Janki Prasad (PW 4) said to be the private home teacher of appellant 's nephews.
PW 4 spoke to what, according to him, were oddities in the behaviour of the respondent and of her violent propensities.
Appellant in order to show that Respondent was a violent lunatic relied upon the medical certificates at Exhibits P3, P4 and A2, the first two issued by PW 1 and the third by a certain Dr.
S.A. Khan.
PG NO 917 Appellant also relied upon certain incidents which occurred on 1.7.1983 in which the respondent is alleged to have exhibited unprovoked violence towards appellant 's sisters and inflicted injuries on their person.
The respondent wife, as stated earlier, tendered evidence as D W 1.
She also produced a copy of the order passed by the Magistrate in proceedings under the Lunacy Act initiated by the appellant for her committal to a mental asylum.
In those proceedings, it would appear, the Magistrate, after examining the respondent, is stated have found no abnormality in her, requiring institutionalised treatment.
The trial court on an appreciation of the evidence accepted appellant 's case and recorded a finding that respondent was afflicted with schizophrenia which was dangerous for her as well as for those who lived with her and granted a decree for the dissolution of the marriage.
This decree, as stated earlier, has been reversed by the High Court.
The point that commended itself to the High Court was that though the evidence indicated the possibility of some mental disorder, however, the requirement of the law as to the existence of the requisite degree and the nature of the disorder that could alone justify a reasonable apprehension in the mind of the appellant that he could not live with the respondent wife had not been established.
This implied that the High Court partly accepted the appellant s case that respondent did suffer from a mental disorder which in this case was described as schizophrenia.
The High Court stated: "The case of the plaintiff is that the defendant remained under the treatment of the psychiatrist Dr. G.D Shukla, in Maharani Laxmi Bai Medical College, Jhansi.
1 and 2 are the prescription and discharge certificates issued by Dr. G.D. Shukla, Ext.
4. is the medical certificate dated 18.5.1983, which was issued by Dr. Shukla, in which he certified that the defendant suffered from schizophrenia since 26th March, 1983.
There is no counter certificate of any expert from the side of the defendant.
I, therefore, do not see any cogent reason to brush aside this certificate of Dr. G.D. Shukla, who examined himself as P.W.1.
" The High Court proceeded to refer to certain medical literature on 'schizophrenia ' and felt pursuaded to the view PG NO 918 that having regard to the various kinds of schizophrenia or rather the various ways in which that mental illness is known to manifest itself, it would be necessary for the appellant to go further and establish the degree and severity of the mental illness which would alone satisfy the requirement of the ground for dissolution of marriage envisaged in Section 13(1)(iii) of the Act.
In substance, the High Court held that appellant had not shown that the mental illness of the wife was of such a kind and intensity as to justify a reasonable apprehension that it would not be possible or safe for appellant to live with the respondent.
The High Court posited the proposition which required its consideration thus: "So it is only when the schizophrenia is of the third variety i.e. catatonia, that the patient is in a state of wild excitement destructive violent and abusive.
Let us see whether the defendant suffers from schizophrenia and whether there is any unassailable and cogent evidence to establish that the schizophrenia is of third variety, namely, catatonia, when the patient becomes destructive, wild and abusive.
" Dealing with this, High Court noticed what according to it were certain shifts in emphasis in the two certificates Exhibit 4 dated noticed 18.5.1983 and Exhibit 3 dated 2.7.1983 issued by P.W. 1.
High Court that while the earlier certificate dated 18.5.1983 did not contain any specific reference to the severity of the disease or to the violent propensities attributed to respondent which tended to endanger safety of others, the later certificate dated 2.7.1983, how ever, sought to supply this element.
The High Court allow noticed certain events of 1.7.1983, in the wake of which the certificate Exhibit 3 dated 2.7.1983 came into existence.
High Court referred to the evidence on record which disclosed that at 11.45 AM on 1.7.
1983, respondent wife had lodged the first information, as per Exhibit 11, with the jurisdictional police complaining that she had been assaulted, first, by her husband 's nephew and then by the members of the family of the appellant.
She also had occasion to complain that appellant 's mother, sisters etc.
had threatened to extinguish respondent 's life by setting her ablaze.
The attempt on the part of the appellant, the High Court noticed, to commit her to an asylum was made on the PG NO 919 very next day viz., 2.7.83.
The medical certificate ex.
3 is also of that date.
The Magistrate who was moved by the appellant under the provisions of the Lunacy Act rejected the application observing that respondent whom he had occasion to examine talked "in a sensible manner and is not at all hostile.
" Referring to the setting in which Dr. Shukla 's (PW. 1) certificate dated 2.7.1983 was required to be appreciated the High Court observed: ". .The second certificate (Ext. 3) by Dr. G.D. Shukla dated 2nd July, 1983, has to be seen in the sequence of the above events.
There is nothing on record to show that the defendant lodged false report with the police in the morning of 1st July, 1983, against the plaintiff inter alia.
It is after the said report was lodged the plaintiff made efforts to collect all the evidence with the aim of sending the defendant to the mental asylum and filed the suit for dissolution of marriage by the decree of divorce.
The above evidence were collected in quick succession.
Keeping in view the above events, the reliability of the second medical certificate (ext. 3) dated 2.7.1983 has to be tested . " ". .
Neither in the first certificate (Ext. 4) nor in the second certificate (Ext. 3) Dr. G.D. Shukla stated that the schizophrenia, the defendant is suffering from, was of the third variety, namely, Catatona, when the patient becomes wild, destructive and violent.
In this statement also, Dr. G .
Shukla (PW. 1) does not state that the schizophrenia was of Catatonia variety.
He does not say even a word about the danger, arising from the mental disorder of the defendant.
The certificate Ext.
3 does not bear the thumb impression or signature of the defendant and, therefore, it cannot be said with certainty that the said certificate was issued by Dr. G.D. Shukla after having examined the defendant.
The High Court also evaluated the evidence of PW 3 & 4 and pointed out the intrinsic improbabilities of the evidence and the consequent unacceptability of their versions.
The High Court, in particular, noticed that PW 4 in his cross examination "expressed total inability to give description of the defendant 's Physique i.e. her complexion, height etc.
" The High Court observed: PG NO 920 " .
The inability of this witness in giving the physical description of the defendant shows that his entire statement is tutored one.
This is the state of affairs of the evidence of the plaintiff.
The High Court also referred to the respondent 's grievance that the environment of hostility and harassment to which she was subjected by appellant 's parent and sisters etc.
had taken its toll and rendered her apprehensive and irritable.
High Court observed: ". .
Cruelty inflicted by the in laws culminated in the first information report which the defendant lodged in the morning of 1st July, 1983, for which no convincing evidence has been given by the plaintiff that the said report was false and that was filed by the defendant without any grave provocation.
The case of the defendant is that the ill treatment extended to her by her in laws throughout right from the time of marriage told upon her mental state and she became very irritable and apprehensive.
The case of the defendant has to be seen in this background.
" Concluding the High Court said: . . . .
I accept the contention of learned counsel for the defendant appellant that the decree of the divorce cannot be sustained, as the plaintiff failed to adduce any evidence that could prove beyond reasonable doubt that the mental disorder of the defendant was of such a kind and to such an extent that the plaintiff cannot live safely with the defendant." 8.
Shri Goel, learned senior counsel appearing in support of the appeal, assailed the correctness of the approach of and the conclusions reached by the High Court.
Learned counsel submitted that the High Court having, on the basis of overwhelming medical evidence, rightly accepted that part of the appellant 's case that the respondent did suffer from 'schizophrenia ', however, fell into an error in weighing the possible manifestation of that insidious disease in golden scales and in its conclusion that appellant could yet live with her.
Learned counsel submitted that if the evidence of the conduct of the respondent is assessed in the background of the fact that she was a confirmed 'schizophrenic ', there would be no room for any PG NO 921 speculative allowance to be made for any possibility of any alternative hypothesis for that behaviour.
Learned counsel submitted that in assessing the reasonableness of the apprehension of the husband that he could not be expected to spend the rest of his life with a 'schizophrenic ', due acknowledgment had to be made to the subjective susceptibilities of the husband also.
Rani Chhabra for the respondent, however, soughtto support the judgment under appeal.
The point, however, to note is that Section 13(1)(iii) does not make the mere existence of a mental disorder of any degree sufficient in law to justify the dissolution of a marriage.
Section 13(1)(iii) provides: "Sec. 13.
Divorce: (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party (i) ] (ii) ] Omitted as unnecessary (iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
Explanation: In this clause, (a) the expression mental disorder means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;" (b) Omitted as unnecessary.
(Emphasis Supplied) 10.
The context in which the ideas of unsoundness of 'mind ' and 'mental disorder ' occur in the section as grounds for dissolution of a marriage, require the assessment of the degree of the 'mental dis order.
Its degree must be such as PG NO 922 that the spouse seeking relief cannot reasonably be expected to live with the other.
All mental abnormalities are not recognised as grounds for grant of Decree.
If the mere existence of any degree of mental abnormality could justify dissolution of a marriage few marriages would, indeed, survive in law.
The answer to the apparently simple and perhaps misleading question as to "who is normal?" runs inevitably into philosophical thickets of the concept of mental normalcy and as involved therein, of the 'mind ' itself.
These concepts of 'mind ', 'mental phenomena ' etc., are more known than understood and the theories of "mind" and "ment~on" do not indicate any internal consistency, let alone validity, of their basic ideas.
Theories of 'mind ' with cognate ideas of 'perception ' and 'consciousness ' encompass a wide range of thoughts, more ontological than epistemological.
Theories of mental phenomena are diverse and include the dualist concept shared by Descartes and Sigmund Freud of the separateness of the existence of the physical or the material world as distinguished from the non material mental world with its existence only spatially and not temporally.
There is, again, the theory which stresses the neurological basis of the 'mental phenomenon ' by asserting the functional correlation of the neuronal arrangements of the brain with mental phenomena.
The 'behaviourist ' tradition, on the other hand, interprets all reference to mind as 'constructs ' out of behaviour.
"Functionalism", however, seems to assert that mind is the logical or functional state of physical systems.
But all theories seem to recognise, in varying degrees, that the psychometric control over the mind operates at a level not yet fully taught to science.
When a person is oppressed by intense and seemingly insoluble moral dilemmas, or when grief of loss of dear ones etch away all the bright colours of life, or where a broken marriage brings with it the loss of emotional security what standards of normalcy of behaviour could be formulated and applied? The arcane infallibility of science has not fully pervaded the study of the non material dimensions of 'being '.
Speaking of the indisposition of science towards this study, a learned author says: ".
We have inherited cultural resistence to treating the conscious mind as a biological phenomenon like any other.
This goes back to Descartes in the seventeenth century.
Descartes divided th,e world into two kinds of sub stances; mental substances and physical substances.
Physical PG NO 923 substances were the proper domain of science and mental substances were the property of religion.
Something of an acceptance of this division exists even to the present day.
So, for example, consciousness and subjectivity are often regarded as unsuitable topics for science.
And this reluctance to deal with consciousness and subjectivity is part of a persistent objectifying tendency.
People think science must be about objectively observable phenomena.
On occasions when I have lectured to audiences of biologists and neurophysiologists, I have found many of them very reluctant to treat the mind in general and consciousness in particular as a proper domain of scientific investigation. " . the use of the noun mind ' is dangerously inhabited by the ghosts of old philosophical theories.
It is very difficult to resist the idea that the mind is a kind of a thing, or at least an arena, or at least some kind of black box in which all of these mental processes occur." (See: John Searle Minds, Brains And Science 1984 Reith Lectures, p. 10 & l l) Lord Wilberforce, referring to the psychological basis of physical illness said that the area of ignorance of the body mind relation seems to expand with that of knowledge.
In McLoughlin vs O 'Brian, [ 1983] 1 Law Reports 410 at 418 the learned Lord said, though in a different context: ". .
Whatever is unknown about the mind body relationship (and the area of ignorance seems to expand with that of knowledge), it is now accepted by medical science that recognisable and severe physical damage to the human body and system may be caused by the impact, through the senses, of external events on the mind.
There may thus be produced what is as identifiable an illness as any that may be caused by direct physical impact.
It is safe to say that this, in general terms, is understood by the ordinary man or woman who is hypothesised by the courts But the illnesses that are called mental ' are kept distinguished from those that ail the 'body ' in a fundamental way.
In Philosophy and Medicine", Vol. 5 at PG NO 924 page X the learned Editor refers to what distinguishes the two qualitatively: ".
Undoubtedly, mental illness is so disvalued because it strikes at the very roots of our personhood.
It visits us with uncontrollable fears, obsessions, compulsions, and anxieties . " " .
This is captured in part by the language we use in describing the mentally ill.
One is an hysteric, is a neurotic, is an obsessive, is a schizophrenic, is a manic depressive.
On the other hand, one has heart disease, has cancer, has the flu, has malaria, has smallpox . " (emphasis supplied) 12. 'Schizophrenia ', it is true, is said to be difficult mental affliction.
It is said to be insidious in its onset and has hereditary pre disposing factor.
It is characterized by the shallowness of emotions and is marked by a detachment from reality.
In paranoid states, the victim responds even to fleeting expressions of disapproval from others by disproportionate reactions generated by hallucinations of persecution.
Even well meant acts of kindness and of expression of sympathy appear to the victim as insidious traps.
In its worst manifes tation, this illness produces a crude wrench from reality and brings about a lowering of the higher mental functions.
"Schizophrenia" is described thus: "A severe mental disorder (or group of disorders) charac terized by a disintegration of the process of thinking, of contact with reality, and of emotional responsiveness.
Delusions and hallucinations (especially of voices) are usual features, and the patient usually feels that his thoughts, sensations, and actions are controlled by, or shared with, others.
He becomes socially withdrawn and loses energy and initiative.
The main types of schizophrenia are simple, in which increasing social withdrawal and personal ineffectiveness are the major changes; hebephrenic, which starts in adolescence or young adulthood (see hebephrenia); paranoid; characterized by prominent delusion; and catatonic, with marked motor disturbances (See catatonia).
PG NO 925 Schizophrenia commonly but not inevitably runs a progressive course.
The prognosis has been improved in recent years with drugs such as phenothiazines and by vigorous psychological and social management and rehabilitation.
There are strong genetic factors in the causation, and environmental stress can precipitate illness." (See Concise Medical Dictionary at page 566: Oxford Medical Publications, 1980) But the point to note and emphasise is that the personality disintegration that characterises this illness may be of varying degrees.
Not all schzophrenics are characterised by the same intensity of the disease.
F.C. Redlich & Daniel X. Freedman in "The Theory and Practice of Psychiatry" ( 1966 Edn.) say: ". . .
Some schizophrenic reactions, which we call psychoses, may be relatively mild and transient; others may not interfere too seriously with many aspects of everyday living . ." (p. 252) "Are the characteristic remissions and relapses expressions of endogenous processes, or are they responses to psychosocial variables, or both? Some patients recover, apparently completely, when such recovery occurs without treatment we speak of spontaneous remission.
The term need not imply an indpendent endogenous process; it is just as likely that the spontaneous remission is a response to nondeliberate but none the less favourable psychosocial stimuli other than specific therapeutic activity . ." (p. 465) (Emphasis Supplied) 13.
The reasoning of the High Court is that the requisite degree of the mental disorder which alone would justify dissolution of the marriage has not been established.
This, it seems to us, to be not an unreasonable assessment of the situation strong arguments of the Sri Goel to the contrary notwithstanding.
The High Court referred to and relied upon the decision of the Calcutta High Court in Smt.
Rita Roy vs Sitesh Chandra, AIR 1982 (Cal.) 138.
In; that case the Division Bench of the Calcutta High Court observed: PG NO 926 " . each case of schizophrenia has to be considered on its own merits . " ". .
According to the aforesaid clause (iii), two elements are necessary to get a decree.
The party concerned must be of unsound mind or intermittently suffering from schizophrenia or mental disorder.
At the same time that disease must be of such a kind and of such an extent that the other party cannot reasonably be expected to live with her.
So only one element of that clause is insufficient to grant a decree .
" Considering the evidence in that case, the High Court reached the conclusion: " .
We are clearly of the opinion that she only has slight mental disorder and she has been suffering intermittently from the same.
But after considering the totality of the evidence and the impact on the husband, we must hold that such mental disorder is not of such a kind and to such an extent that the husband cannot reasonably be expected to live with her, within the meaning of the second portion of clause (iii) of Sec.
13(1) of the Act . " We approve this approach of the High Court of Calcutta.
Indeed, the following observations of Ormrod J. in Bennett vs Bennett, with reference to 'mental disorder ' in Section 4 of the Mental Health Act, 1959, are opposite in the context of Sec.
13(1)(iii) of the` Act ': " . .
Now, the definition of `mental disorder ' in sec.
4 of the Mental Health Act, 1959, is in very wide language indeed.
It includes mental illness, arrested or incomplete development of mind, psychopathic disorder, and any other disorder or disability of mind and so, for the moment to turn to medical language it clearly includes, or one would suppose it clearly includes, not only psychotic illness but neurotic illnesses as well and thus begins by enormously enlarging the field.
The way in which this very large field is cut down in the Act of 1965, section 9(1)(b), is by the use of this phrase "of such a kind or to such an extent as to be unfitted for marriage and the procreation of children.
" PG NO 927 The burden of proof of the existence of the requisite degree of mental disorder is on the spouse basing the claim on that state of facts.
Indeed the caution of a learned author against too readily giving a name to a thing is worth recalling: "Giving something a name seems to have a deadening influence upon all our relations to it.
It brings matter to a finality.
Nothing further seems to need to be done.
The disease has been identified.
The necessity for further understanding of it has ceased to exist.
" (See "The Auto biography of a purpose": William Alanson White New York: Double day & Co., 1938, p. 53) It is precisely for this reason that a learned authority on mental health saw wisdom in eschewing the mere choice of words and the hollowness they would bring with them.
He said: "I do not use the word 'schizophrenia ' because I do not think any such disease exists .
I know it means widely different things to different people.
With a number of other psychiatrists, I hold that the words 'neurosis ', 'psychoneurosis ', 'psychopathic personality ', and the like, are similarly valueless.
I do not use them, and I try to prevent my students from using them, although the latter effort is almost futile once the psychiatrist discovers how conveniently ambiguous these terms really are . " "In general, we hold that mental illness should be thought and spoken of less in terms of disease entities than in terms of personality disorganization.
We can precisely define organization and disorganization; we cannot precisely define disease . ." "Of course, one can describe a 'manic ' or a 'depressed ' or a 'schizophrenic ' constellation of symptoms, but what is most important about this constellation in each case? Not, we think, its curious external form, but rather what it indicates in regard to the process of disorganization and reorganization of a personality which is in a fluctuant state of attempted adjustment to environmental reality.
Is the imbalance increasing or decreasing? To what is the stress related? What psychological factors are accessible to external modification? What latent capacities for PG NO 928 satisfaction in work, play, love, creativity, are discoverable for therapeutic planning? And this is language that can be understood.
It is practical language and not language of incantation and exorcism. " (Emphasis Supplied) (See Karl Menninger, "Communication and Mental Health", "The Menninger Quarterly (1962) p. 1 Readings in Law and Psychiatry: Richard C. Allen, Elyce Zenott Ferster, Jessee C. Rubin: Revised & Expanded Edn. 1975: page 38).
This medical concern against too readily reducing a human being into a functional non entity and as a negative unit in family or society is law 's concern also and is reflected, at least partially, in the requirements of Section 13(1)(iii).
In the last analysis, the mere branding of a person as schizophrenic will not suffice.
For purposes of Section 13(1)(iii) 'schizophrenia ' is what Schizophrenia does.
The appeal is dismissed.
There will be no order as to costs.
G.N. Appeal dismissed.

summary:
The appellant and respondent married in 1977.
In 1983, the appellant filed a suit for dissolution of the marriage, alleging that his wife was suffering from severe mental disorder, psychiatrically recognised as `Schizophrenia ' which rendered her unsociable and despite competent professional treatment, her condition deteriorated to the point of making manifest in her suicidal tendencies and aggressive violent behaviour towards others.
The appellant could not therefore reasonably be expected to live with the respondent as man and wife.
The Respondent denied the imputation of insanity and contended that the appellant was determined to get rid of her, as a result of the domestic discord between her and the appellant 's mother and sister.
Both the husband and the wife gave evidence, to prove their respective cases.
Other witnesses were also examined.
The respondent wife produced a copy of the order passed by the Magistrate in proceedings initiated by the appellant under the Lunacy Act.
for the committal of his wife to a mental asylum.
The order stated that there was no abnormality in her, requiring institutional treatment.
On appreciation of the evidence, the trial court accepted the case of the appellant and granted a decree for dissolution of the marriage.
The Respondent wife appealed to the High Court.
Allowing the appeal, the High Court reversed the decree of dissolution of marriage, granted by the trial court.
It held that the appellant had not shown that his wife 's mental illness was so intense as to justify a reasonable apprehension that it would be impossible or unsafe for the appellant to live with her.
PG NO 913 PG NO 914 In the present appeal before this Court, it was contended on behalf of the appellant that in assessing the reasonableness of the husband 's apprehension that he could not be expected to spend the rest of his life with a `Schizophrenic ', due acknowledgement required to be made to his subjective susceptibilities also.
Dismissing the appeal, HELD: 1.1 Section 13(1)(iii) does not make the mere existence of a mental disorder of any degree sufficient to justify the dissolution of a marriage.
The burden of proof of the existence of the requisite degree of mental disorder is on the spouse basing the claim on that state of facts.
The context in which the ideas of unsoundness of `mind ' and `mental disorder ' occur in the section as grounds for dissolution of a marriage, require the assessment of the degree of the `mental disorder '.
Its degree must be such as that the spouse seeking relief cannot reasonably be expected to live with the other.
All mental abnormalities are not recognised as grounds for grant of decree.
[921 C H; 922A] 1.2 scnizophrenia is said to be a difficult mental affliction.
It is insidious in its onset and has hereditary pre disposing factor.
Each case of Schizophrenia has to be considered on its own merits.
Mere branding of a person as Schizophrenic will not suffice.
For purpose of Sec.
13(1)(iii) Schizophrenia is what Schizophrenia does.
Not all Schzophrenics are characterised by the same intensity of the disease.[924D;928D] 2.
In the instant case, taking into account the facts and circumstances the High Court, on a reasonable assessment of the situation, rightly came to the conclusion that the requisite degree of the mental disorder which alone would justify dissolution of marriage has not been established and that the decree for the dissolution of the marriage.
granted by the trial court was not justified.
[917C D] Rita Roy vs Sitesh Chandra, AIR 1982 Cal 138, approved.
McLoughin vs O 'Brian, ; ; Bennett vs Bennett. , relied on.
John Searle `Minds, Brains and Science ' [l984] Reith Lectures, PP.
10 & 11, Concise Medical Dictionary, p. 566, Oxford Medical Publications, 1980, Philosophy and Medicine, Vol.
5, p.x.
F.C. Redlich and Daniel X. Freedman.
`The Theory and Practice of Psychiatry ' [1966] Edn.
William Alanson White, New York, The Autobiography of a Purpose ' PG NO 915 Doubleday & Co. 1938 p. 53, Karl Menninger `Communication and Mental Health ', The Menninger Quarterly, [1962], p. 1., Richard C. Allen, Elyce Zennott Ferster, Jassee C. Rubin `Readings in Law and Psychiatry ', Revised & Expanded edn.
(1975), p. 38 relied on.


judgement:
vil Appeal Nos.
3564 65 of 1979.
From the Judgment and Order dated 6.3.1979 of the Calcutta High Court in F.M. Appeal Nos. 446 & 447 of 1978.
S.K. Nany for the Appellant.
G.L. Sanghi, D.P. Mukharjee, Praveen Kumar and G.S. Chatterjee for the Respondents.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
It is unfortunate that nearly 15,000 bargemen, i.e., Majhis the Dandees working at the Calcutta Port have been denied their right to receive reasonable wages and allowances for nearly 12 years on account of a very narrow view taken by the Calcutta High Court in the decision under appeal.
PG NO 1037 The Government of India set up a Wage Board for the port and dock workers at major ports on November 13, 1964 and made a reference to the said Board of the following terms, namely (a) to determine the categories of employees (manual, clerical, supervisor, etc.) who should be brought within the scope of proposed wage fixation (excluding, however, the Class I and Class II Officers); and (b) to work out a wage structure based on the principle of fair wages as set forth in the report of the Committee of Fair Wages.
In making the reference the Central Government laid down guidelines as to how the fair wages were to be determined and further directed the Board to submit its recommendations in respect of interim relief pending submission of the final report.
The Wage Board submitted its recommendations regarding the interim relief on April 9, 1965 and in the course of the said recommendations it observed that they would be applicable to certain categories of employees and port and dock workers at major ports.
The Wage Board submitted its final report on November 29,1969.
Since the Wage Board had been authorised under the terms of reference to determine the specific categories of dock workers and employees who in the opinion of the Board should be brought under the scope of the principles of wage fixation, the Wage Board had specified the categories of workers who were entitled to relief at its hands even at the stage of making of the interim recommendations, referred to above.
At this stage it is necessary to refer to the definition of the expression 'dock worker ' in the (hereinafter referred to as 'the Act ').
Clause (b) of section 2 of the Act defines the expression 'dock worker ' thus: "2(b).
'dock worker ' means a person employed or to be employed in, or in the vicinity of, any port on work in connection with the loading, unloading, movement or storage of cargoes, or work in connection with the preparation of ships or other vessels for the receipt or discharge of cargoes or leaving port.
" The above definition of 'dock worker ' is of wide import and it includes all categories of workers working in a port or in the vicinity, if they are handling cargoes.
But the Wage Board, however, did not choose to make any PG NO 1038 recommendation in respect of bargemen, i.e., Dandees and Majhis at the Port of Calcutta, who were more than 15,000 in number.
As a matter of fact there was an earlier reference by the State Government of a dispute regarding the wages payable to bargemen, i.e., Dandees and Majhis at the Port of Calcutta and the Industrial Tribunal had by an award dated March 9, 1966 fixed their basic wages at Rs.110 and Rs.130 per month respectively.
There were also certain ad hoc increments of such wages by different interim agreements.
When these categories of workmen found that the Wage Board had not made any recommendation regarding the wages payable to them, they raised an industrial dispute claiming the benefit of the Wage Board recommendations.
Accordingly, the Central Government on August 22, 1970 constituted a National Tribunal at Calcutta and referred to it under section 7 B and section 10( 1A) of the the following issue for adjudication, namely, "Whether recommendations of the Central Wage Board for the Port and Dock workers as accepted by the Central Government in their resolution No. WB 21(7)/69 dated the 26th March, 1970 are applicable to the bargemen in the matter of wages and allowances? If not to what other relief with regard to wages and allowances are they entitled? ' ' In the statement of claims filed by the trade union representing bargemen it was contended that barges, lighters and boats performed the combined functions of transit sheds, warehouses, jetties, quays, wharfs on a miniature scale and enabled loading and unloading of cargoes into and from ships, and that they carried almost all the cargoes from mills, factories and establishments located at the back of the river as it was found to be advantageous and economical to use barges, lighters and boats for loading and unloading of cargoes into and from ships because of all round lower costs.
Accordingly, the trade union claimed that barges, lighters and boats were engaged in dock works and the workmen concerned fully conformed to the definition of 'dock workers ' as given in the Act.
It, therefore, claimed that the bargemen were also entitled to the scale fixed by the Wage Board in Paragraph 7.2.108 of its final report.
Alternatively, the union claimed that if their wages were to be assessed independently then they were entitled to d minimum wage of Rs.206.40 paise on the very same considerations which led the Wage Board in its recommendations to fix the minimum wage figure as incorporated in Paragraphs 7.1.19 to 7.1.70.
The employers on the other hand and mainly the two Yassociations PG NO 1039 representing the employers in their counter statement made out a case that bargemen did not come within the definition of 'dock workers ' and were not covered by the Wage Board recommendations since they were employed mainly in the transportation of goods.
According to them the bargemen were employed in carrying jute and jute goods from jute mills to ships berthed in and around the docks from mills to mills, jetties and ghats and also cargoes from ships to various places in the State of West Bengal.
The managements claimed that the bargemen were neither wholly engaged in docks and streams nor were they involved in the process of unloading and loading.
In support of this claim the managements depended upon the findings of an Expert Committee appointed by the Central Government to the effect that bargemen were engaged more in the transport of cargo rather than its handling and they therefore did not fit in with the definition of 'dock worker., '.
In that view the employers contended that the first part of the reference was totally misconceived inasmuch as on the recommendations of the Wage Board itself the bargemen did not come within its purview.
Secondly, the employers disputed the correctness of the wage fixation as made by the Wage Board with reference to certain alleged infirmities pointed out by them including the infirmity of the Board not considering the capacity of the industry to pay as laid down by the Courts.
So far as the second part of the reference was concerned, the employers urged that the wages of the bargemen had been fixed by the Industrial tribunal on a reference by the Government of West Bengal made on 4.
l.1965 and that the wages so fixed had been revised from time to time by agreement between the parties and there being no change in the circumstances justifying any further revision thereof, there should be no upward revision of the existing wage structure.
They also pleaded that the financial capacity of the employers did not permit any further enhancement in the wages.
The National Tribunal after overcoming certain preliminary obstacles placed before it by the institution of a writ petition in the High Court of Calcutta by the management questioning the validity of the reference itself, was able to pass an award on 20.7.1976.
The National Tribunal held that since the bargemen, i.e., Dandees and Majhis were dock workers they were entitled to get wages and allowances in accordance with the Wage Board recommendations.
After taking into consideration the relevant circumstances, the National Tribunal also held that the Dandees and Majhis working under the members of the Calcutta River Transport Association, and of the Bengal River Transport Association and under the Port Shipping Co. Ltd. were entitled to payment of higher wages and allowances PG NO 1040 w.e.f.
1.1.1976 even independently of the recommendations of the Wage Board but at the same rates which had been recommended by the Wage Board, which were considered by the National Tribunal reasonable in the circumstances of the case.
This part of the award was made pursuant to the second part of the reference made to the National Tribunal.
Aggrieved by the award of the National Tribunal, the managements filed two writ petitions before the High Court of Calcutta questioning the validity of the award.
The learned Single Judge, who heard the writ petitions, was of the view that the award was liable to be set aside as it was beyond the scope of the reference.
The learned Single Judge observed in the course of his order dated 4.4.1978 thus: "The reference has two parts.
One part relates to the applicability of the recommendation of the Central Wage Board for Port and dock workers to the Bargemen in the matter of wages and allowances, the other part relates to the wages and allowances the Bargemen are entitled to if the recommendations of the Central Wage Board are not applicable to the said Bargemen As regards the first part, the scope of reference is, to find out from the report of the Central Wage Board itself whether the recommendations are applicable to the Bargemen or not The tribunal in exercising its jurisdiction is only bound by the terms of reference.
The Jurisdiction is confined to the actual points of disputes referred to.
In the instant case, the reference was whether the recommendation of the Central Wage Board was applicable to the Bargemen or not.
It is not for the tribunal to criticise the report of the Central Wage Board and to establish upon oral and documentary evidence that the Bargemen are dock workers within the meaning of the Act, and as such they are entitled to the wage recommended by the Central Wage Board lo the Bargemen of the Calcutta Port.
Rightly or wrongly the Central Wage Board arrived at a particular conclusion.
The National Tribunal.
it seems, acted as a Court of Appeal.
found fault with the recommendations arrived at by the Central Wage Board and criticised its recommendation in saying that the word PG NO 1041 "wholly engaged" did not find place in the definition of dock workers in Sec.
2(b) of the Act of 1948 and the Wage Board came to a wrong conclusion which was inconsistent with the definition of the dock workers in the Act.
In a round about way, the National Tribunal made the recommendations of the Central Wage Board applicable to the Bargemen although apparently the recommendations are not applicable to them.
In my view, in doing so and in making such an award the Tribunal has exceeded its jurisdiction.
In making the reference, the Central Government was conscious that the recommendation of the Central Wage Board might not be applicable to the Bargemen although the Bargemen made demand for implementation of the said recommendation and raised a dispute.
That is why, the second part of the reference was there.
The National Tribunal could have come to an independent conclusion that the Bargemen are dock workers and they should be paid similar wages as recommended by the Central Wage Board with respect to the Bargemen of Calcutta port.
The Tribunal answered the first part of the reference and held that the recommendation of the Central Wage Board would be applicable to the Bargemen, as such there was no scope for deciding the second part of the reference although the Tribunal dealt within its Award the pay Structure of Dandees and Majhis, which should not have been done.
On the basis of the above findings the learned Single Judge quashed the award passed by the National Tribunal.
Aggrieved by the decision of the learned Single Judge, the trade union filed an appeal before the Division Bench of the High Court.
The Division Bench by its judgment dated 6.3.1979 affirmed the judgment of the learned Single Judge.
The Division Bench was of the view that there was a serious doubt as to whether all dock workers answering the definition of 'dock workers ' in the Act were entitled to be brought within the scope of the proposed wage fixation by the Wage Board.
So far as the second issue was concerned, the Division Bench held that the National Tribunal had failed to fix the wages in accordance with the settled principles.
It also agreed with the finding of the learned Single Judge that the decision of the National Tribunal was beyond its jurisdiction.
which was controlled by the questions referred to it for adjudication.
Aggrieved by the PG NO 1042 decision of the Division Bench, the trade union has filed these appeals by special leave under Article 136 of the Constitution of India.
The object of enacting the and of making provision therein to refer disputes to tribunals for settlement is to being about industrial peace.
Whenever a reference is made by a Government to an industrial tribunal it has to be presumed ordinarily that there is a genuine industrial dispute between the parties which requires to be resolved by adjudication.
In all such cases an attempt should be made by Courts exercising powers of judicial re,view to sustain as far as possible the awards made by industrial tribunals instead of picking holes here and there in the awards on trivial points and ultimately frustrating the entire adjudication process before the tribunals by striking down awards on hyper technical grounds.
Unfortunately the orders of the Single Judge and of the Division Bench have resulted in such frustration and have made the award fruitless on an untenable basis.
In the present case the National Tribunal has held in Paragraph 27 of its award that the reference related to the determination of the wage structure in respect of bargemen, i.e., Dandees and Majhis working in or about the Calcutta Port and to none other.
There is no dispute on this question before us.
We shall proceed on that basis.
The reference on made on 22.8.1970, The validity of the reference itself was questioned by some of the managements in a writ petition filed in the High Court.
That writ petition was dismissed on 24.1.1972.
Against the dismissal of the writ petition a writ appeal was filed before the Division Bench of the High Court which was unconditionally withdrawn on 11.7.1974.
During this interval there were atleast two strikes and some attempts at settlement between the parties.
The settlements did not conclusively put an end to the dispute.
In the aforementioned settlements which were only of interim character it was made certain that the demands of the workmen concerned for the enhancement of wages and allowances to be paid to the barge men, both on the basis of the recommendation of the Wage Board as well as on the basis of their alleged legitimate claim for enhancement in spite of the Wage Board award, were to be decided by the National Tribunal.
During the period of four years between the date of the reference and the date on which the writ appeal was withdrawn from the High Court there were changes in the Presiding Officers of the National Tribunal Shri B.N. Banerjee was the Presiding Officer of PG NO 1043 the National Tribunal at the time when the reference was made.
On his retirement on 24.6.1971 Shri S.N. Bagchi was appointed as Presiding Officer.
On the retirement of Shri S.N. Bagchi on 31.1.1974 Justice E.K. Moidu was appointed as the Presiding Officer on 18.7.1974.
The reference was finally heard and decided by Justice E.K. Moidu.
When the hearing of the reference was resumed by the National Tribunal after the disposal of the Writ Appeal before the High Court some of the managements raised several preliminary objections before the National Tribunal.
They were all rejected by the National Tribunal for the reasons given in the course of its award (vide Paragraphs 10 to 15 of the award).
The National Tribunal rightly observed that the reference in question consisted of two distinct parts viz. one part relating to wages and allowances to be paid to the bargemen on the basis of the recommendations of the Wage Board and the other part relating to the wages and allowances to be fixed in favour of the bargemen on the basis of the demands made by the bargemen independently of the recommendations of the Wage Board.
The National Tribunal rejected the contention of the managements that the second part of the reference could not be considered by it as under the settlement dated 25.7.1970 what was sought to be referred to it was only the dispute relating to the implementation of the recommendation of the Wage Board and not the general claim made by the bargemen for enhancement of their wages and allowances by fixing a wage structure.
The National Tribunal pointed out that both parties had agreed in Exhibit M 5(a), which was a settlement, that the Government should refer the dispute to an appropriate tribunal and that right was left to be decided by the Central Government.
The Central Government thereafter had referred the matter to the National Tribunal for its decision and hence, it could not be held that the second part of the reference was without any basis.
The National Tribunal then proceeded to consider the two points referred to it independently.
The first part of the reference, as already stated, related to the application of the Wage Board award to the bargemen, i.e., Dandees and Majhis.
In order to decide the said question the National Tribunal had to take into consideration the recommendations made by the Wage Board.
While the Wage Board had accepted that the definition of the expression 'dock worker ' found in the Act was relevant for purposes of determining the scope of the reference made to it, it however declined to make any recommendation in respect of the bargemen working in the Port of Calcutta.
even though it felt that the conditions of service and emoluments of the bargemen at Calcutta were unsatisfactory.
The Wage Board observed in the course of its recommendation thus: PG NO 1044 "Bargemen are engaged more in the transport of Cargo rather than in its handling and they therefore do not fit in with definition of dock workers.
They are also workers who have to be attached to or employed at particular barges (sic).
We recommend that the Government should make an early investigation into their conditions of services, emoluments, etc.
which are stated to be highly unsatisfactory (unanimous).
" After the recommendations of the Wage Board were received by the Government of India, the Government of India by its order dated 26.5.1970 requested the Calcutta Dock Labour Board and the Commissioners for the Port of the Calcutta and concerned employers to implement expeditiously the recommendations of the Tripartite Expert Committee in the light of the observation made by the Government.
The Government of India by a letter written by the Joint Secretary, Ministry of Labour, Employment and Rehabilitation (Department of Labour and Employment) dated 15.6.1970 to the Secretary, Government of West Bengal drew the attention of the Government of West Bengal to the terms of reference under the Tripartite Expert Committee for Calcutta Dock and the recommendations of the Committee pertaining to bargemen and pointed out inter alia that the barge crew did not come under the term 'dock worker ' as alleged by both the Central Wage Board as well as by the Tripartite Expert Committee.
It, however, requested the State Government to consider the question of setting up a committee for bargemen of Calcutta Port and to keep the Central Government informed of the developments.
No action was taken on the basis of the above letter.
It was the case of the bargemen that they were dock workers as defined in the Act and the denial of the benefits under the recommendations of the Wage Board was wrong.
It appears that at some stage even the Central Government was not quite sure of the position whether bargemen, i.e., the Majhis and Dandees could be classified as dock workers.
The bargemen, therefore, thought that it was proper to approach the Central Government to refer the dispute in question to a tribunal.
The National Tribunal after taking into account the above events and the evidence recorded by it and the submissions made by the parties held that the definition of 'dock worker ' did include within its scope bargemen too but the Wage Board had erroneously failed to make any recommendation with regard to the wages and allowances payable to the bargemen.
The National Tribunal held that "they (bargemen) live in the barges, cook food and sleep PG NO 1045 there and stay in the barges for 24 hours of the day.
So, they form part and parcel of the dock workers." In paragraphs 24 and 25 of the award the National Tribunal observed thus: "The above evidence both on the union 's side as well as on the management 's side establishes that Majhis and Dandees have been doing similar work of other Dock Workers employed by the Calcutta Dock Labour Board in the matter of loading and unloading of Cargo in and out of the barges.
The Wage Board, however, restricted the scope of the word "Dock Worker" with a view to exclude the bargemen out of the definition of dock worker as defined in Act 9 of 1948.
In paragraph 4 of the Wage Board report the Board stated that the definition of dock workers in Act 9 of the 1948 was very wide and may be construed to mean all categories of workers working in a port or in the vicinity, if they are handling cargo.
But once the bargemen come into the purview of the definition of dock workers as defined in Act 9 of 1948, there was no ground for excluding bargemen from the definition.
They had to admit that bargemen are also working in the Ports.
The most prominent activity in a port is cargo handling and it is in this work that a lot of labour is employed.
In most of the ports a fairly large quantity of cargo is handled overside in the docks or in the stream by lightermen.
This aspect of the case had been understood by the members of the Board.
They had given a restricted meaning to the definition of dock worker .
The definition of the dock workers has to be under stood in the light of not only their work in the port but also consistent with the definitions of cargo, vessel, employer and the port in the Acts referred to above.
The terms, loading, unloading and movement of persons employed in any port in connection with the preparation of Ships or Vessels for the receipt or discharge of cargo would indicate that the work of the bargemen came rightly within the definition of dock workers as defined in Act 9 of 1948.
There is plenty of evidence in the case that their main work and activity is within the Port.
The fact that one of the companies had made use of them to go beyond the port by itself does not in any manner bring down their description to make them less as dock workers.
The Shipping Company has caused to be produced PG NO 1046 Ext.
They are printed copies of bills.
Most of these bills came into existence after the controversy had set in.
It is true that there are some bills of the years, 1964 and 1965.
But it is not possible from those bills to make out whether the Shipping Company used barges or other crafts for the purpose of carrying goods to distant places.
The inner foils of these printed slips had also not been produced.
There is nothing to show that they are genuine slips maintained by the persons who issued the same.
In the absence of correct material it is difficult to hold that the Shipping Company had taken its barges outside the Port limits.
Any way, even assuming that they had taken the barges outside the Port limits that circumstance alone will not make the bargemen less Dock Workers in the facts and circumstances of this case.
l have gone through the evidence in its entirety and I am satisfied from the available evidence and records that the Wage Board as well as Chatterjee Committee deviated from the definition of the Dock Workers as defined in Act 9 of 1948 and came to a wrong conclusion which is inconsistent with the definition of the dock worker in that Act with the result that the bargemen were deprived of their due share of wages to be paid to them on the basis of the recommendation they made in the report of the Wage Board.
I am satisfied that the evidence in the case leads to the only conclusion that the bargemen are dock workers within the meaning ot dock workers as defined in Act 9 of 1948.
It follows therefore that the bargemen would be entitled to all the benefits by way of wages and allowances which the Wage Board recommended in their report. ' ' Having held that the bargemen, i.e., Majhis and Dandees were also dock workers, the National Tribunal observed that the recommendations made by the Wage Board were applicable to the bargemen also and they were entitled to be paid the wages and allowances in accordance with the said recommendation.
Alternatively the National Tribunal took up for consideration the second question referred to it, namely.
that if for any reason the bargemen were not entitled to the benefits under the recommendations made by the Wage Board to what other relief with regard to the wages and allowances they were entitled? In that connection the National Tribunal observed at paragraph 37 of its award thus: PG NO 1047 "37.
The next question for consideration is the second part of the reference.
i.e., whether the Dandees and Majhis would be entitled to enhanced wages, and allowances and if so what would be the rate of their monthly wages and allowances.
This has to be decided independently of the recommendations of the Wage Board on the materials available on record.
The rates of wages and allowances under the 2nd part of the Award has to be determined as if the rate under the Wage Board is fair wage and not minimum wage.
Taking into consideration the evidence and all other facts and circumstances borne out from the records of this case there is justification for fix ing the rate recommended by the Wage Board as the fair wage due to be paid to the Dandees and Majhis with effect from 1 1 1976. " In deciding the second question the National Tribunal placed before itself the principles laid down by this Court in Express Newspapers (Private) Ltd. and Anr.
vs The Union of India and Ors., which had laid down the relevant criteria for the fixation of rates of wages for workmen and considered the evidence placed before it in the light of the said principles.
It took into consideration the financial capacity of the various managements who were involved in the case, the prevailing conditions of service in Calcutta and other questions governing the determination of the fair wages.
It also took into consideration the observations made by the Wage Board which for purposes of fixing wage rates had taken into consideration the relevant matters while making its recommendations with regard to certain categories of workmen working in the Calcutta Port.
It found that almost all the managements who had given evidence before it were capable of bearing the financial burden which would have to be borne by them on account of the payment of fair wages to be fixed by it.
It found that having regard to all the circumstances of the case that the fair wages and allowances payable to the bargemen with effect from 1 1 1976 should be the same as the fair wages payable pursuant to the recommendations made by the Wage Board.
After giving our anxious consideration to the entire Award and to the judgments of the learned Single Judge and the Division Bench of the Calcutta High Court we feel that both the learned Single Judge and the Division Bench of the High Court erred on the facts and in the circumstances of the case in setting aside the Award passed by the National Tribunal.
As observed by the learned Single Judge himself ' PG NO 1048 that the first question, namely, whether the recommendations of the Central Wage Board for the Port and Dock workers as accepted by the Central Government were applicable to the bargemen in the matter of wages and allowances was referred to the National Tribunal by the Central Government as there were doubts regarding the question whether the bargeman came with in the meaning of the definition of 'dock worker ' in the Act or not.
Naturally in order of decide the said question the National Tribunal had to examine incidentally the correctness of the decision of the Wage Board on the question whether the bargemen were dock workers or not and after taking into consideration all the material before it the National Tribunal had come to the conclusion that the bargemen were also dock workers and there was no justification for denying them the benefit of the recommendations of the Wage Board.
This part of the Award cannot, therefore.
be considered to be outside the scope of the reference made to the National Tribunal.
The learned Single Judge and the Division Bench of the High Court were therefore in error in finding that the National Tribunal had exceeded its jurisdiction while recording its findings on the above question.
The finding on the said question recorded by the National Tribunal may be right or wrong but it cannot be considered as one recorded without jurisdiction.
We are of the view that the said question clearly fell within the first part of the reference made to the National Tribunal.
Having held that the finding that the bargemen were also dock workers had been recorded by the National Tribunal without jurisdiction the learned Single Judge proceeded to quash the finding recorded by the National Tribunal on the second question also by which the National Tribunal had held that even independently of the recommendations of the Wage Board, the bargemen were entitled to the same wages and allowances which had been recommended by the Wage Board having regard to the financial capacity of the managements and all other relevant factors governing the question of wages payable to them.
The Division Bench also erred in observing that the National Tribunal had not applied the relevant principles governing the determination of fair wages.
It erred in observing that the National Tribunal had taken into consideration the financial capacity of the port authorities to pay wages and allowances and not of the private employers like those who had challenged the Award in the High Court.
The Division Bench, however, has observed in the course of its order that no doubt in the Award some reference was made to the financial capacity of some of the employers but that had been done only to support the conclusion that the minimum wage as fixed by the Wage Board should be admissible to these workmen and that it would not be beyond the capacity of the employers to pay the same.
On going through the Award PG NO 1049 we feel that the above criticism of the Award made by the National Tribunal is wholly unjustified.
It has dealt with the second part of the reference in paragraphs 37 to 44 of the Award which are found in pages 146 to 157 of the Paper Book placed before us.
The National Tribunal has given reasons as to why it has adopted, while answering the second part of the reference to it, the recommendations of the Wage Board.
The learned Single Judge and the Division Bench of the High Court should have seen that the National Tribunal was of the opinion that the bargemen were entitled to be paid wages and allowances at the rates of wages recommended by the Wage Board on the ground that the Bargemen came within the meaning of definition dock workers under the Act and thus the recommendations of the Wage Board were applicable to them and alternatively on the ground that they were entitled to the same rates of wages and allowances even independently of the recommendations of the wage Board as according to the National Tribunal they were entitled to be paid at those rates having regard to the financial capacity of the managements and all other relevant considerations governing the determination of the wages.
In these circumstances we feel that the reasons given by the learned Single Judge and by Division Bench of the High Court to set aside the Award passed by the National Tribunal are wholly unsustainable.
The wages and allowances fixed by the National Tribunal were just and not at all excessive.
We, therefore, set aside the judgment of the Division Bench of the High Court and also the judgment of the learned Single Judge of the High Court and restore the award passed by the National Tribunal.
The award passed by the National Tribunal should now be enforced by the authorities concerned in accordance with law.
These appeals are accordingly allowed.
The appellant is entitled to costs which we quantify at Rs. 5,000.
R.S.S .
Appeals allowed .

dataset_name: IN-Abs

summary:
The Government of India set up a Wage Board for the port and dock workers at major ports on November 13, 1964(1) to determine the categories of employees who should be brought within the scope of proposed wage fixation, and (2) to work out a wage structure for those employees on the basis of the guidelines laid down by the Government.
The Wage Board submitted its final report on November 29, 1969.
The Wage Board did not choose to make any recommendation in respect of bargemen, i.e., Dandees and Majhis at the Port of Calcutta.
According to the Wage Board, the bargemen were engaged more in the transport of cargo rather than its handling and they therefore did not fit in with the definition of 'dock worker '.
Thereupon, the bargemen raised an industrial dispute claiming the benefit of the Wage Board recommendations.
Accordingly, the Central Government on August 22, 197o constituted a National Tribunal at Calcutta for adjudication whether the recommendations of the Wage Board were applicable.
to the bargemen, and if not, to what relief with regard to wages and allowances were they entitled.
The National Tribunal held that the bargemen were entitled to be paid wages and allowance at the rates of wages recommended by the Wage Board on the ground that the bargemen came within the meaning of the definition of 'dock worker ' and thus the recommendations of the Wage Board were applicable to them, and alternatively, on the ground that PG NO 1034 PG NO 1035 they were entitled to the same rates of wages and allowances even independently~ having regard to the financial capacity of the management and all other relevant considerations governing the determination of the wages.
Aggrieved by the award of the National Tribunal, the managements filed two writ petitions before the High Court at Calcutta questioning its validity on the ground that it was beyond the scope of the reference.
The learned Single Judge observed: (1) that the scope of the reference was to find out from the report of the Central Wage Board itself whether the recommendations were applicable to the bargemen or not, and it was not for the National Tribunal to criticise the report of the Central Wage Board and to establish that the bargemen were dock workers within the meaning of the Act; (2) the National Tribunal, in a round about way, made the recommendations of the Central Wage Board applicable to the bargemen although apparently the recommendations were not applicable to them, and (3) the National Tribunal having held that the recommendations of the Central Wage Board were applicable to the bargemen, there was no scope for it to decide independently the pay structure of the bargemen.
The learned Single Judge accordingly quashed the award as beyond the jurisdiction of the National Tribunal.
The Division Bench, on appeal, agreed with the Single Judge and further held that the National Tribunal had failed to fix the wages in accordance with the settled principles.
Allowing the appeal, it was, HELD: (l) The object of enacting the and of making provision therein to refer disputes to tribunals for settlement is to bring about industrial peace.
Whenever a reference is made by a Government to an industrial tribunal it has to be presumed ordinarily that there is a genuine industrial dispute between the parties which requires to be resolved by adjudication In all such cases an attempt should be made by Courts exercising power of judicial review to sustain as far as possible the awards made by industrial tribunals instead of picking holes here and there in the awards on trivial points and ultimately frustrating the entire adjudication process before the tribunals by striking down awards on hyper technical grounds.[1042B C] PG NO 1036 (2) In order to decide the question whether the bargemen were dock workers or not the National Tribunal had to examine incidentally the correctness of the decision of the Wage Board on the question, and after taking into consideration all the material before it the National Tribunal had come to the conclusion that the bargemen were also dock workers and there was no justification for denying them the benefit of the recommendations of the Wage Board.
This part of the Award could, therefore, be considered to be outside the scope of the reference made to the National Tribunal.
The finding recorded by the National Tribunal may be right or wrong but it could not be considered as one recorded without jurisdiction.
[1048B D] (3) The National Tribunal while holding that even independently of the recommendations of the Wage Board, the bargemen were entitled to the same wages and allowances which had been recommended by the Wage Board had observed that it would not be beyond the capacity of the employers to pay.
The criticism of the award in this regard by the High Court was wholly unjustified.
[1048E F; 1049A] (4) The wages and allowances fixed by the National Tribunal were just and not at all excessive.
[1049E] Express Newspapers (Private) Ltd. and Anr.
vs The Union of India and Others, referred to.


judgement:
ivil Appeal Nos.
259 to 261 (NT)/77 etc.
From the Judgment and Order dated 21.10.76 and 24.12.76 of the Andhra Pradesh High Court in W.P. Nos. 439 and 287 of 1975 and 4144 of 1976 and W. P. No.8905 of 1987 A.S. Nambiar, B. Parthasarthi and B. Kanta Rao for the Appellants.
P.A. Choudhary, T.V.S.N. Chari, Badridas and Ms. V. Grover for the Respondents.
PG NO 1090 The Judgment of the Court was delivered by RANGANATHAN, J.
A common question is involved in all these matters which are, therefore, being disposed of by this common judgment.
The question is whether tobacco seed oil and tobacco seed cake are entitled to exemption under the Andhra Pradesh General Sales Tax Act, 1957 (hereinafter referred to as the `Act ').
The question arises in the following circumstances.
Section 8 of the Act confers an exemption from sales tax in respect of certain goods.
It provides that: `Subject to such restrictions and conditions as may be prescribed including conditions as to licence fees, a dealer who deals in the goods specified in the fourth schedule shall be exempt from tax under this Act in respect of such goods. ' Entry 7 in the Fourth Schedule was `tobacco and all its products. ' 3.
The Andhra Pradesh High Court in Amara Purushotham Mamidi Obaiah & Co. vs State of A.P., [1962] 29 STC 654, was called upon to consider whether tobacco seed, tobacco seed oil and tobacco seed cake were exempt from sales tax under the above provision.
The Bench held that tobacco seeds could be said to be tobacco only so long as they remain attached to the plant.
They, however, ceased to be tobacco the moment they are removed from the plant.
Thereafter, they may be considered to be a product of tobacco.
But they constitute a separate and a distinct class of goods with independent properties and potentialities not the same as those of the parent plant.
Products manufactured out of tobacco seed could not be said to be products of tobacco.
The Court, in this context, referred to the analogy of cotton seeds, which have been considered to be distinct from cotton.
The above Bench decision was rendered in spite of the wide words of the exemption, which covered not only tobacco in its comprehensive sense but also all products of tobacco.
The Act was amended by Amendment Act 9 of 1970.
There was a slight amendment, which is not material for our present purpose, in section 8 which substituted the words "licences and licence fees" in place of words "licence fees" alone which had been mentioned in the section previously.
Tobacco continued to be the item in entry 7 of the Fourth Schedule but this entry now referred only to "tobacco".
The words "and all its products", which had been used earlier, were omitted.
An explanation was added to the PG NO 1091 Fourth Schedule to the following effect: "Explanation Expressions in items 5, 6 and 7 have the same meanings assigned to them in Additional Duties of Excise (Goods of Special Importance) Act of 1957 (Central Act 58 of 1957.)" 5.
The new explanation to Schedule IV makes it necessary for us to consider the provisions of Central Act 58 of 1957.
This is an Act which provides for the levy and collection of additional duties of excise in respect of certain goods, over and above the duties of excise levied and collected in respect of such goods under the Central Excise and Salt Act, 1944 (hereinafter referred to as the `1944 Act ').
The statement of objects and reasons of Act 58 of 1957 has been referred to before us and its short contents may be extracted here: "The object of the bill is to impose additional duties of excise in replacement of the sales taxes levied by the Union and States on sugar, tobacco and millmade textiles and to distribute the net proceeds of these taxes, except the proceeds attributable to Union Territories, to the States.
The distribution of proceeds of the additional duties broadly follows the pattern recommended by the Second Finance Commission.
Provision has been made that the States which levy a tax on the sale or purchase of these commodities after the 1st April, 1958 do not participate in the distribution of the net proceeds.
Provision is also being made in the Bill for including these three goods in the category of goods declared to be of special importance in inter State trade or commerce so that, following the imposition of uniform duties of excise on them, the rates of sales tax, if levied by any State are subject from 1st April, 1958 to the restrictions in section 15 of the .
" In short, the object of the Act was to substitute additional duties of excise in place of sales tax so far as these goods were concerned.
Since the State Legislature were at liberty, if they wished, to levy taxes on the sale or purchase of these commodities, the Act provided that the additional excise duties will be distributed only among such States as did not levy a tax on the sale or purchase of these commodities.
Also, by including these goods in the category of goods declared to be of special importance in inter State PG NO 1092 trade or commerce, the legislation ensured that, if any State levied sales tax in respect of these commodities, such levy was subject to the restrictions contained in the . 6.
Apparently, the intention of the Andhra State Legislature when the Amendment Act of 1970 was introduced was to exempt certain goods from the purview of sales tax because they also came within the purview of the levy of additional duties of excise under Act 58 of 1957.
This is the reason why the Explanation to the entries in the Fourth Schedule to the Act incorporated the definition of these goods as contained in Act 58 of 1957.
Turning then to Act 58 of 1957, section 2(c) of that Act provided that the words and expressions "sugar", "tobacco", "cotton fabrics" and "woollen fabrics" to mention only four of the items referred to in the definition section shall have the same meanings respectively as have been assigned to them in Item Nos. 1, 4, 19 and 21 of the First Schedule to the 1944 Act.
The above definition takes us to the 1944 Act.
There the definition of the word `tobacco ' is contained in item No. 4 of the First Schedule.
The definition reads: "Tobacco means any form of tobacco, whether cured or uncured and whether manufactured or not and includes the leaf, stalks and stems of the tobacco plant, but does not include any part of a tobacco plant while still attached to the earth." The Schedule thereafter proceeds to set out two broad categories, namely, unmanufactured tobacco and manufactured tobacco.
The former is divided into eight sub categories in respect of each of which a separate duty of excise is prescribed.
Three of the entries mentioned are: (3) if flue cured and not otherwise specified.
(6) if other than flue cured and not otherwise specified.
(8) Stalks The second category of manufactured tobacco is classified into various items like cigars and cheroots, cigarettes, PG NO 1093 biris, smoking mixtures for pipes and cigarettes and chewing tobacco of various kinds, snuff and hookah tobacco.
The question whether tobacco seed oil and tobacco cake fall within entry 7 of Schedule IV to the Act, as amended, came up for consideration before a Division Bench of the same High Court (1977 40 S.T.C. 572).
This Bench agreed with the conclusion of the earlier Division Bench, though not with its line of reasoning.
It was of the view that the definition clause, properly interpreted in the light of the decision of the House of Lords in Dilworth vs Commissioners of Stamps, [1899] A.C. 99 and C.I. T. vs Taj Mahal Hotel, , justified the inference that "tobacco seed" was not "tobacco" and that only leaf, stalks and stems of the tobacco plant could be said to be "tobacco" within the meaning of the definition in item 4 of the Schedule to the 1944 Act.
The Bench concluded: "Under these circumstances, it is obvious that the definition of the word "tobacco" according to item 4 of Schedule I to the Central Excises and Salt Act of 1944 does not bring "tobacco seed" within its purview, and therefore, tobacco seed is not exempted from the levy of sales tax under the A.P. General Sales Tax Act, since tobacco seed does not fall within the meaning of the word "tobacco" as defined in the Fourth Schedule to the A.P. General Sales Tax Act.
It is clear in view of this conclusion of ours that since tobacco seed is not "tobacco" for purposes of exemption under section 8 of the Act, much less can tobacco seed oil or tobacco seed oil cake or tobacco seed cake can be said to be tobacco for the purposes of this exemption.
" The Bench, therefore, denied the exemption to the appellants/petitioners before us and hence these petitions/appeals.
Before us, it is urged on behalf of the asessees that the word "tobacco", in its ordinary connotation, takes in the tobacco plant and every part of it, including the seed.
The definition also make it clear that it takes in every form of tobacco, manufactured or unmanufactured.
Thus tobacco seeds, not only when they are in their raw unmanufactured state but also when, on manufacture, they manifest themselves in the form of tobacco seed oil or tobacco seed cake will fall within the definition.
On the other hand.
on behalf of the State it is submitted that the PG NO 1094 definition, which covers both what the expression means as well as what it includes, is exhaustive.
Tobacco seed does not come within the first part of the definition, for the expression "tobacco, cured or uncured, manufactured or unmanufactured" has to be read as a whole and will not take in tobacco seed.
It will not come under the second part because it specifically mentions leaves, stalks and stems but leaves out seeds.
Since tobacco seeds do not fall within the definition, the oil and cake produced by the crushing of the seeds will not also be covered by the definition or eligible for the consequent exemption.
We are inclined to accept the contention urged on behalf of the State that the definition under consideration which consists of two separate parts which specify what the expression means and also what it includes is obviously meant to be exhaustive.
As Lord Watson observed in Dilworth vs Commissioner of Stamps, [1899] AC 99 the joint use of the words "mean and include" can have this effect.
He said, in a passage quoted with approval in earlier decisions of this Court: Sect.
2 is, beyond all question, an interpretation clauses, and must have been intended by the Legislature to be taken into account in construing the expression "charitable device or bequest," as it occurs in section 3.
It is not said in terms that "charitable bequest" shall mean one or other of the things which are enumerated, but that it shall "include" them.
The word "include" is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include.
But the word "include" is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined.
It may be equivalent to "mean and include" and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions." (Underlining ours) PG NO 1095 13.
Looking, therefore, at the terms of the definition more closely, it is quite clear that tobacco seeds do not fall within the second or inclusive part of the definition.
This part of the definition is important.
It specifically excludes from the definition any part of the tobacco plant so long as it is still attached to the earth.
It makes mention only of parts of the plant after it is severed from the earth.
It is common knowledge that when a plant is severed from the earth, its parts will comprise of not only the leaves, stalks and stems but also the seeds.
Yet the inclusive part of the definition enumerates only the leaves, stalks and stems and, deliberately one should think, avoids mention of seeds.
Can then the words `tobacco ' and `any form of tobacco ' in the first part of the definition be given a wider meaning and read as including the seeds also, particularly as it talks of tobacco in any form, cured or uncured, manufactured or unmanufactured? We do not think they can be for several reasons.
In the first place, tobacco seeds hardly answer to the description of either the expression `manufactured tobacco ' or the expression `unmanufactured tobacco ' in their ordinary connotation; and the expression `cured or uncured ' cannot also be associated with tobacco seeds.
The expression used in the first part of the definition, though very wide, is, therefore, singularly inappropriate to take within its purview tobacco seeds as well.
Secondly, the definition occurs in a statute levying excise duty which is concerned not with the parts of a plant grown on the field but with the use to which those parts are put or can be put after severance.
The legislature could not but have been aware that if the leaves, stalk and stem of the tobacco plant are used for manufacturing cured tobacco, biris, cigarettes and so on, the seed is also used to produce oil and cake.
It takes care to mention the first three items which are used in the manufacture of some forms of tobacco consumption which are also enumerated but refrains from referring to seeds which it would have done had it been intended to include the oil and cake also for purposes of the levy.
The categories of unmanufactured tobacco enumerated in the entry in the Schedule include `stalks ' but not `seeds '.
This also indicates that seeds are not intended to be included.
In other words, the omission of the word `seeds ' from the second part of the definition casts its shadow on the first part as well.
Indeed it rather looks as if the second part of the definition is intended to restrict rather than expand the scope of the first part.
Thirdly, it is to be noticed that the first part of definition is somewhat restrictively worded.
It could have said, for instance, that `tobacco ' means any part of the tobacco plant and includes its leaves, and stems after the plant is severed from the earth.
What it does say is, PG NO 1096 however, different.
The present definition, when it says that tobacco means any form of tobacco lays emphasis that the item under consideration should be tobacco inform.
The leaves, stalks and stems, even after drying, curing and other processes and even `manufacture ' retain the form of tobacco, as understood in common parlance.
But it is otherwise with the seeds.
They are not tobacco in form.
They do not have the properties of tobacco.
They are not used to exploit the narcotic qualities of tobacco.
Apart from their use for seeding purposes, the seeds are only used for the manufacture of oil and cake.
We are told that the oil is used as an ingredient in the manufacture of scents and the cake as manure.
Having regard to all this, we agree with the High Court that tobacco seed once it is separated from the plant, is an item entirely different from tobacco and does not fall within the expression `tobacco or any form of tobacco '.
We would like to add that, even if by stretching the language somewhat, tobacco seeds can be brought within the first part of the definition, the oil and cake we are concerned with here cannot.
This again, we say, for two reasons.
In the first place, as discussed earlier, tobacco seed oil or cake can hardly be said to be a form of the tobacco seed.
It is true that one can say that it is the contents of the seed that have manifested themselves, on being crushed, into two forms the oil and the cake.
But this is not enough.
The definition requires that the item in question should be a form of the tobacco seeds that is manufactured.
While, as already pointed out, the leaves, stalks and stems even after manufacture retain the form of tobacco, the complete metamorphosis of the seed on its manufacture renders it impossible to describe the oil and cake as a form of the tobacco seed.
Secondly, in our view, we should take note of the circumstance that earlier the item in Schedule IV covered not only tobacco but all its products.
Never theless.
it was held not to include the oil and cake.
The legislature has subsequently amended the provision by deleting the reference to "all products of tobacco".
In this context of an abridgement of the definition, it will not be correct, in our view, to construe the item so as to bring tobacco seed oil and cake within the scope of the exemption.
Sri Choudhary points out that, if the contention of the assessees were accepted, they would be only jumping, as it were, from the frying pan into the fire.
Since the item of exemption under the Act is worded identically with the item of the levy under the 1944 and 1957 Acts, the effect of accepting the assessees ' claim for exemption would be to automatically catapult them into the levy of excise and additional excise duties as well as into the rigours of the restrictions and regulations prescribed under those PG NO 1097 enactments.
True, the consideration that if the oil and cake fall under item 7, such consequences as have been mentioned will follow cannot really guide or deter us in construing the definition.
However the fact that the oil and cake have not been considered to be excisable commodities for the past several years is an indication as to how the legislature and the administration have understood and applied these provisions all along.
Certain other judicial decisions were cited by both parties but we are not discussing them.
They neither directly deal with the point before us nor do they deal with definitions or situations which furnish a useful analogy for comparison.
For the reasons discussed above, we affirm the view taken by the High Court and dismiss these appeals and petitions.
We, however, make no orders as to costs.
R. section section Appeals dismissed.

summary:
The appellant assessee had claimed before the Andhra Pradesh High Court that tobacco seed oil and tobacco seed cake, being forms of tobacco, were entitled to exemption under section 8, read with entry 7 of the Fourth Schedule, of the Andhra Pradesh General Sales Tax Act, 1957, which confers exemption from sales tax in respect of certain goods including `tobacco '.
The petitioners in the writ petitions have claimed the same relief directly in this Court.
The High Court held that "tobacco seed" was not tobacco and that only leaf, stalks and stems of the tobacco plant could he said to be "tobacco" within the meaning of its definition.
Before this Court it is urged on behalf of the Assessees that: (i) the word `tobacco ', in its ordinary connotation.
takes in the tobacco plant and every part of it, including the seed (ii) the definition of `tobacco ' makes it clear that it takes in every form of tobacco, manufactured or unmanufactured; and (iii) tobacco seeds, not only when they are in their raw unmanufactured state but also when.
on manufacture, they manifest themselves in the form of tobacco seed oil or tobacco seed cake will fall within the definition.
On the other hand, on behalf of the state it is submitted that the definition, which covers both what the expression means as well as what it includes, is exhaustive, and tobacco seed does not come within either the first part or the second part of the definition.
Dismissing the appeals and the petitions, it was, HELD: (1) The definition consists of two separate parts which specify what the expression means and also what it includes.
The joint use of the words "mean and include" makes the definition exhaustive.
[lO94C] PG NO 1089 Dilworth vs Commissioner of Stamps, [1899] AC 99 referred to.
(2) Tobacco seed does not come within the first part of the definition, for the expression "tobacco cured or uncured, manufactured or unmanfactured" has to be read as a whole and will not take in tobacco seed.
It will not come under the second part because it specifically mentions leaves, stalks and stems but leaves out seeds.
[1094A B] (3) The definition, when it says that tobacco means any form of tobacco, lays emphasis that the item under consideration should be tobacco in form.
[1096A] (4) Tobacco seed, once it is separated from the plant, is an item entirely different from tobacco and does not fall within the expression `tobacco or any form of tobacco '.
[1096C] (5) Since tobacco seed does not fall within the definition, the oil and cake produced by the crushing of the seeds will not also be covered by the definition or eligible for the consequent exemption.
[1094B] (6) The effect of accepting the assessee 's claim for exemption would be to automatically catapult them into the levy of excise and additional excise duties, but the fact that tobacco oil and cake have not been considered to be excisable commodities for the past several years is as indication as to how the legislature and administration understood and applied these provisions all along.
[1096H; 1097B] C.I.T. vs Taj Mahal Hotel, S.C. Amara Purushotham Mamidi Obaiah vs State of A.P., [1962] 29 S.T.C. 654; and 1977 40 S.T.C. referred to.