judgement:
Appeal No.1865 of 1975.
From the Judgment and Decree dated 7/10.2.1975 of the Gujarat High Court in First Appeal No. 291 of 1967.
566 A.S. Qureshi, N.K. Sahoo, P.H. Parekh, and Ms. Chetna Anand for he Appellant.
Dushyant Dave, Mrs. Nandini Gore for Mrs. M. Karanjawa la, R. Karanjawala (N.P), Anip Sachthey and Rajesh for the Respondents.
The plaintiffs Nos. 2 to 4 were Dumaldars of village Nalej of erstwhile State of Chhota Udepur (hereinafter referred to as the jagirdars).
The jagirdars vide exhibit 58 dated 9.1.1954 sold all the teak trees in favour of plaintiff no.1 (hereinafter referred to as the contractor) for a sum of Rs.6,001/ and received a sum of Rs. 101/ as earnest money.
By another agreement exhibit 59 dated 29th July, 1954, the jagirdars sold all the Mahuda trees in favour of the con tractor for a sum of Rs. 5001/and received sum of Rs. 600/ as earnest money.
On 1st August, 1954 Bombay Merged Territo ries and Areas (Jagirs Abolition) Act, 1953 (hereinafter referred to as the 'Jagir Abolition Act ') was applied to village Nalej.
The compensation in lieu of trees was not awarded to the Jagirdars as the same had already been sold by the Jagirdars in favour of the contractor.
The contractor made an application to the Collector of Baroda under sou rashtra Felling of Trees Act for permission to cut the trees in question.
The Collector forwarded the application to the Mamlatdar of Chhota Udepur who granted the permission vide order dated 25th September, 1961.
The contractor then start ed cutting the trees in question.
However, the Prant Offi cer, Chhota Udepur prevented the contractor from cutting the trees.
The contractor then made representations to the Divisional Forest Officer and the Government.
In reply the contractor was told that the Jagirdar had no right to the trees standing in the reserved forest area and in the waste land.
Thereupon the contractor 's authorisation to cut the trees and his transit passes to transport the goods were withheld.
The Government invited tenders for the sale of the trees already cut and sold the same on 30th July, 1962 for a sum of Rs.15786/ .
The Government also sold other trees to other persons and realised from them some amounts.
The Jagirdars and the contractor filed a suit against the Gov ernment of Gujarat and the Divisional Forest Officer, Chhota Udepur, District Baroda for rendition of account, for a declaration of the plaintiffs title of the trees in question and for a declaration of the right of the contractor to cut the trees in question and to remove the cut materials.
567 A declaration was also sought that the impugned action of the Government was illegal, ultra rites and unlawful and to give a direction to the Government to issue the necessary authorisation and transit passes for cutting and removing the trees in question in favour of the contractor.
It was also prayed that out of the sale proceeds of the cut materi als on 30th July, 1962 for Rs.15786/ an amount of Rs.1267.82 having paid by the Divisional Forest Officer, a decree for the balance of Rs.14518.18 may be passed against the Government.
The Trial Court by judgment dated 31st March, 1967 partly decreed the suit.
It was declared that the jagirdars were the full owners of the trees and as such the contractor had also become the full owner of the trees.
It was also declared that the contractor was entitled to cut and remove these trees and the State of Gujarat, its officers, servants and agents were ordered to issue necessary permit, authori sation and transit passes to plaintiff no.1 (contractor) for removal of the trees.
The state was also ordered to pay Rs.14518.18 together with proportionate costs and interest at 4% per annum on this amount from the date of decree till realisation.
The State of Gujarat, its officers, servants and agents were also restrained by perpetual injunction not to interfere with the rights of ownership of the plaintiffs except in due course of law.
Prayer for rendition of ac counts was dismissed.
The State of Gujarat, aggrieved by the Judgment and decree of the Trial Court filed an appeal in the High Court.
The Division Bench of the High Court allowed the appeal, set aside the decree passed by the Trial Court and dismissed the suit.
The cross objections filed by the plaintiffs were also dismissed.
It would be necessary to state some events which have a material bearing with the case.
The Jagir Abolition Act came into force on 1.8.54 as already mentioned above.
The Govern ment issued a notification dated 15th February, 1955 under Sec. 4 of the and constituted cer tain survey numbers of the village Nalej into a reserve forest.
Thereafter another notification was issued under section 20 of the constituting survey No.102 alone into a reserve forest.
It may be noted that in the present case we are concerned with the Teak and Mahuda trees standing on survey No.102 of village Nalej.
Learned counsel appearing on behalf of the State of Gujarat had raised the following contentions before the High Court: 1.
Under the Forest Rules of Chhota Udepur State, Chhota Udepur State had exercised rights over three kinds of forest 568 reserved, protected and open.
These rights devolved upon the State of Gujarat.
Therefore, the State of Gujarat can exercise those rights and issue under section 4 of the the impugned notification.
Under the Forest Rules of Chhota Udepur State 21 kinds of trees including teak and mahuda trees were reserved trees and they were prohibited from being cut.
The interest which Chhota Udepur State had in those trees de volved upon the State of Gujarat and, there fore, under Section 4 of the it was within the power and authori ty of the State of Gujarat to issue the im pugned notification.
Under section 5 of the Jagir Abolition Act the soil vested in the Jagirdars and not the trees.
Therefore, the jagirdars could not have sold away to the contractor the trees in question.
Since the trees in question had vested in the State it was within the power and authority of the State to issue the im pugned notification.
The agreement executed by the Jagirdars in favour of the contractor were not valid and, therefore, not enforceable at law.
They did not confer any title upon the contractor.
Alternatively, if the contractor had acquired any rights under the said agreements, his remedy lay in claiming compensation in respect of his rights which were hit by the impugned notification.
The High Court dealt with the above four contentions in seriatim.
While dealing with the first contention the High Court considered that the decision of the appeal largely turned upon the forest Rules of Chhota Udepur State.
The High Court after considering the matter in detail held that survey No.102 of village Nalej was a reserved forest during the days of Chhota Udepur State.
The High Court referred to the forest Rules of Chhota Udepur State in order to find out the position in relation to survey no.102 of Nalej.
Schedule 'A ' of the Rules contained the detailed discription of areas which was declared as reserved forest.
At serial No.11 Village Nalej has been mentioned amongst other villages.
Columns 7 and 8 showed that an area of 250 acres and 14 gunthas of village Nalej was declared as reserved forest.
No survey number of that area had been mentioned therein.
According to the High Court this Entry in Schedule 'A ' lends support to the fact that there was one reserved forest admeasur 569 ing 290 acres and 14 gunthas in village Nalej of Chhota Udepur State.
Survey No.102 of Village Nalej as a reserved forest was not mentioned but this was on account of the reason that Chhota Udepur State made its forest Rules in 1934 which were published in 1938 when the reserved forest area of village Nalejj did not bear any survey number.
However, it was mentioned in the Rules that there was one reserved forest in village Nalej to the extent of 290 acres and 1.4 Gunthas.
The plaintiffs themselves admitted in agreement exhibit 59 that survey No.102 was a reserved forest.
It was then held that in respect of a reserved forest Jagirdars did not have the right to cultivate any land nor to cut any trees.
The only right he had was a right to graze cattle and to remove some forest produce in accord ance with Regulations made by Chhota Udepur State in that behalf.
The Jagirdar did not have any right to any trees situated in reserved forest.
With the merger of Chhota Udepur State with the then State of Bombay the property belonging to Chhota Udepur State in the reserved forest devolved upon the State of Bombay and subsequently upon the State of Gujarat.
The High Court thus accepted the first contention raised on behalf of the State of Gujarat.
The High Court then considered the second contention and in this regard observed that Rule 4 of the Forest Rules of Chhota Udepur State contained the list of reserved trees.
21 kinds of trees had been listed as reserved trees which included the teak and Mahuda trees which formed the subject matter of the two transactions between the Jagirdars and the contractor.
The High Court then held that the right to forest produce which Chhota Udepur State had in respect of such trees in the "open forest" devolved upon the State of Bombay, on merger of Chhota Udepur State with it and there after upon the State of Gujarat.
It was thus held that the second contention raised on behalf of the State was right and the same was upheld.
The High Court found no substance in the third conten tion and rejected the same.
However, the High Court observed that in the light of the finding recorded on the second contention it was quite clear that the trees which vested in the Jagirdars vested in them subject to such right or inter est in them which the State had under the Forest Rules of Chhota Udepur State.
In the 4th and last contention challenging the validi ty of the two agreements exhibits 58 and 59, the High Court observed that there are two aspects of this contention.
The first aspect is that agreements exhibits 58 and 59 were compulsorily registerable and that since they were not registered, they did not convey any title to the contractor in respect of the 570 subject matter of the agreements.
The High Court in this regard held that what was transferred was the standing timber and not any interest in soil.
Therefore, the two agreements were not compulsorily registerable.
The High Court then considered the second aspect of the 4th conten tion.
It was argued on behalf of the State that all the survey numbers to which agreements exhibits 58 and 59 relat ed were waste lands and as such under section 8 of the Jagir Abolition Act they vested in the State.
The High Court in this regard held that forest lands are not waste lands.
Therefore, if they have not vested by virtue of the provi sions of section 8 of the Jagir Abolition Act in the State of Gujarat.
The High Court in view of the findings recorded above on the first and second contentions in favour of the state, allowed the appeal and dismissed the suit filed by the plaintiffs.
Learned counsel for the plaintiffs appellants raised altogether new line of argument before us.
It was submitted that the appellants did not challenge the existence or the legality of the Chhota Udepur Forest Rules but their submis sion was that the said Rules did not apply to the facts and circumstances of this case.
It has been contended that the aforesaid forest Rules, together with all other laws of Chhota Udepur State, stood repealed on 28.7.48 when the Indian States (Application of Laws) Order 1948 came into force.
On and from 28.7.1948 the , and the Rules made thereunder became applicable.
The two agreements were made on 9.1.1954 and 29.7.1954 long after the Chhota Udepur Forest Rules were repealed and before the issuance of the notification by the Government dated 12.5.55 declaring its intention to make a part of survey No. 102 of Nalej as reserved forest under Sec.4 of the .
It has thus been submitted that so far as the impugned contracts are concerned the same are not adversely affected either by the Forest Rules of Chhota Udepur State or by the Notifica tion issued under section 4 of the .
It has been contented that the High Court was wrong in holding that the impugued contracts dated 9.1.1954 and 29.7.1954 could not pass any right on the contractor as the same were hit by the provisions of Chhota Udepur State Forest Rules, when in fact those forests Rules had already been repealed.
It was also argued that the High Court 's decision about reserved forests is based on surmises and so called admis sion in the contract exhibit 59.
The words used in the plaint are "alleged jungle bhag" which does not amount to an admission that it is a reserved forest.
In the agreement exhibit 59 the words used are "So called reserved forest" and subsequently in the same agreement the words used are "reserved Padtar (vacant)".
It has thus been submitted that the earlier use of words 'so called ' is not repeated subse quently and as such it means that the plaintiffs had denied 571 the same to be reserved forest.
As regards Entry No.11 in the Schedule to the Forest Rules of Chhota Udepur State, the High Court itself has observed that no survey number is mentioned.
This itself goes to prove that survey No.102 was not intended to be covered by the said Entry No.11.
Thus it was not proved that survey No.102 was a reserved forest.
It was further argued that assuming that survey No.102 in village Nalej was a reserved forest under the Forest Rules of Chhota Udepur State, it ceased to be so from 28.7.48.
It is an admitted position that the Notification under Section 4 of the was published on 12.5.55 and in case survey No.102 of village Nalej was already continuing as reserved forest under the Forest Rules of Chhota Udepur State, then there was no necessity at all of issuing a fresh Notification under Section 4 of the .
The fact that such Notification was issued on 12th May, 1955 clearly goes to show that survey No.102 did not constitute reserved forest in between the period 28.7.48 to 12.5.55.
We do not find any force in the above submission made on behalf of the appellants.
So far as the legality of the Chhota Udepur State 's Forest Rules is concerned, it was nowhere challenged by the plaintiffs.
In the written submis sions filed before us on behalf of the appellants the point made at 1.1 itself reads as under: "The appellants do not challenge the existence or the legality of the Chhota Udepur Forest Rules (hereinafter the Forest Rules).
The appellants merely submit that those Rules do not apply to the facts and circumstances of this case".
Apart from the above stand taken by the appellants themselves, Judgment of the High Court of Gujarat in Special Civil Application No. 404/61 State of Gujarat vs Kumar Shri Ranjit Singhji Bhavani Singhji, Shn C.M. 7halair Jagir Abolition Officer, Baroda and others decided on 22nd April, 1965 has been placed on record by the Learned counsel for the appellants.
In the aforesaid judgment Shelat, C.J., and Bhagwati, J. (as he then was) have observed that in 1934, the State of Chhota Udepur promulgated amended Forest Rules under Notification of August 1, 1934.
The Notification was issued under the signature of the Ruler himself.
These Rules, therefore,.
became and constituted the law of the State.
The High Court in the impugned order before us has also placed reliance on such Rules.
The High Court has rightly held that at serial No.11 an area of 290 acres and 14 gun thas of village Nalej was declared as reserved forest.
No survey number on that area could have been mentioned because the reserved forest area of village Nalej did not bear any survey number at that time.
However, it cannot disputed be that there 572 was one reserved forest in village Nalej admeasuring 290 acres and 14 gunthas and the plaintiffs themselves have admitted in the plaint that the trees in question were in the alleged jungle bhag.
In the agreement exhibit 59 also the words used are "so called reserved forest".
Thus apart from the above admissions, the entire case has been contest ed in the trial court as well as in the High Court on the assumption that the trees in question were standing on the area of reserved forest declared by the Chhota Udepur State.
In case the plaintiffs wanted to show that the trees in question were not inside the reserved forest area they should have taken such stand in a clear manner and it .would have been very easy for them to succeed in the suit without going through all the various legal submissions made by the parties.
Thus we see no reason to take a different view from the High Court and we affirm the finding of the High Court in this regard that the trees in question stood on the area which was declared as reserved forest under the Forest Rules framed by the Chhota Udepur State.
In order to appreciate the other submission made by the learned counsel for the appellants we would refer to the Indian States (Application of Laws) order, 1948 (hereinafter referred to as 'Application of Laws order ' 1948).It would be necessary to reproduce Section 5 which repeals the enact ments in force in Indian States.
Section 5: Repeal of enactments in force in Indian States: All enactments in force in the Province of Bombay and extended to any such State under paragraph 3 shall stand repealed: Provided that the appeal by this Order of any such enactments shall not affect the validity, invalidity, effect or consequence of any 'thing already done or suffered or any right, title, obligation or liability already acquired, accrued or incurred, or any remedy or proceed ing in respect thereof, of any release or discharge of or from any debt, penalty, obli gation, liability, claim or demand or any indemnity already granted, or the proof of any past act or thing; Nor shall the repeal by this order of any enactment affect any principle or rule of law, or established jurisdiction, form or course of pleading, practice or procedure, or existing usage, custom, privilege, restriction, exemp tion, office or appointment, in so far as the same respectively is not in any way inconsist ent with any of the enactments extended under paragraph 3 of this order, notwithstanding that the same respectively may have been in any manner affirmed, recognised or derived by, in or from any enactment hereby repealed; 573 Nor shall the repeal by this order of any enactment revive or restore any jurisdiction, office, custom, liability, right, title, privilege, restriction, exemption, usage, practice, procedure or other matter or thing not now existing or in force immediately before the date on which this order comes into force.
There is no doubt that Chhota Udepur State, has been mentioned in Schedule 1 of the Application of Laws order and all enactments in force in Chhota Udepur stood repealed and the mentioned in Schedule 11 became applicable, but the proviso to section 5 clearly provides that the repeal by this order shall not affect any right, title, obligation or liability acquired, accrued or in curred.
Thus the Jagirdars had already acquired accrued or incurred a liability in respect of the trees in question which were part of the reserved forest as declared under the Forest Rules of Chhota Udepur State.
There is nothing on the record to show that the Jagirdars were cutting trees from the part of village Nalei which was declared reserved forest during the time of erstwhile Chhota Udepur State.
Jagirdars could not have given a better title to the contractot in respect of the trees, which the jagirdars themselves did not possess.
The repealing of the Forest Rules of Chhota Udepur State on 28th July, 1948 did not furnish any additional or increased rights to the Jagirdars which they did not have before the merger of Chhota Udepur State.
It has been vehemently contended on behalf of the appel lants that it was a case of full proprietorship right in the Jagir and the Jagirdars had full and complete rights of ownership in the soil, as well as the trees.
Reliance is placed on the definition of proprietary jagir under Clause XVIII as conternplated in section 2 of the Jagir Abolition Act which reads as under: "Proprietary Jagir" means a Jagir in respect of which the Jagirdar under the terms of a grant or agreement or by custom or usage is entitled to any rights or interest in the soil".
It has been contended that the Jagirdars in the present case had not only a right over the trees but also interest in the soil and as such they had full right to sell the trees to the contractor.
It was submitted that even if there were any restrictions on cutting of trees so long as forest rules of Chhota Udepur State remained in force that restric tion was removed on 28.7.48 when such rules were repealed by the Application of Laws order.
After the forest rules of Chhota Udepur State were repealed, the Jagirdars got full right to alienate the trees as such right was inherent in the right of proprietary Jagir.
It was also submitted that the Government of Bombay had itself taken policy decision that all contracts made by the Jagirdars prior to the aboli tion of jagits on 1.8.54 shall be honoured.
It cannot be considered the intention of the Government to take away such vested rights 574 in the jagirdar having come into force on 28.7.48, after a lapse of seven years by issuing a Notification on 12.5.55 under Section 4 of the .
It has also been contended that the Government has recognized that right of full ownership in the trees in favour of other jagirdars similarly situated and there was no justification for taking such arbitrary and discriminatory action against the plain tiffs alone.
The above submissions are based on a total misconcep tion.
As already mentioned above, there is no question of taking away any rights.
It is no doubt correct that it is a case of proprietary jagir, but it does not confer any right in respect of trees standing in a reserved forest.
Once it is established that during the time of existence of erst while State of Chhota Udepur an area admcasuring 290 acres and 14 gunthas in village Nalej was declared as reserved forest and Jagirdars had no right at all in the trees stand ing in such area of reserved forest, the Jagirdars cannot be considered to have acquired a greater right on 28.7.48 when the Forest Rules of Chhota Udepur State were repealed by the Application of Laws order.
There is another insurmountable difficulty for the plaintiffs in as much as the trees had not been cut and removed prior to 12.5.55 when admittedly a notification has been issued under Sec. 4 of the also.
That being so no relief can be sought for cutting and removing the trees in question after 12.5.55 as the survey No.102 has been constituted as reserved forest under the provisions of The tree in question are teak and Mahuda trees which were out of 21 kinds of trees declared as reserved trees which were prohibited from being cut under the extent of forest rules of Chhota Udepur State.
Such trees even if standing in forest were not allowed to be cut.
Thus examining the matter from any angle, we are already of the opinion that the plaintiffs are not entitled to any relief as claimed in the suit.
So far as the ground of discrimination is concerned, it is well settled that in order to establish the same it is necessary to make out such case in the pleadings.
In the present case no such ground was taken in the plaint nor any facts or material were placed on record during the trial of the suit or before the High Court and the same cannot be considered for the first time before this Court, specially when the defendants were not given any opportunity to meet the same.
In our view the High Courts was right in dismissing the suit.
In the result we find no force in this appeal and the same is dismissed.
In the facts and circumstances of the case we direct no order as to costs.
Y.L. Appeal dismissed.

summary:
This appeal by the plaintiffs is against an order of rever sal dtd.7/10th February, 1975 passed by the Gujarat High Court.
Plaintiff No.1 first appellant is the contractor and Plaintiffs Nos.
2 to 4, the other appellants.
are the jagir dars of the farmer State of chhota Udepur.
The Jagirdars sold some teak trees to plaintiff No.1, contractor.
With effect from 1.8.1954, the Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953 was made applicable to village Nalej,and no compensation was awarded to the Jagir dars in lieu of the trees, as they had sold them to appel lant No.1 (since dead) and now represented by his legal representatives.
The contractor made an application to the Collector of Baroda under Sourashtra Felling of Trees Act for permission to cut the trees in question, which was forwarded to Mamlatdar of Chhota Udepur who granted the same on 25.9.1961 as a consequence whereof the contractor started cutting the trees.
The Prant Officer, Chhota Udepur however, prevented the contractor from cutting the trees whereupon the contractor represented the matter before the Divisional Forest Officer and the State Government but was told that the Jagirdars had no right to the trees standing in the reserved forest area and in the waste land.
The Government sold the trees already cut for Rs. 15786 and also sold the other trees to some other persons.
The Jagirdars and the contractor filed a suit against the State of Gujarat and the Divisional Forest Officer.
Chhota Udepur, District, Baroda for rendition of accounts, for declaratio of the plaintiffs ' title to the trees, for a declaration of the right of the contractor to cut the trees and to remove the same, and for direction to the State to issue the necessary authorisation and transit passes for cutting and removing the trees in question in favour of the contractor.
Decree for the balance of the amount of Rs. 14518.18 after adjusting Rs. 1267.82 already received was also sought.
The trial court partly decreed the suit holding that the jagir dars were the full owners of the trees and as such the 564 565 contractor had also become the full owner thereof.
The State was also ordered to pay Rs. 14518.18 with proportionate costs and interest at 4 per centum per annum on this amount from the date of decree till realisation.
The State of Gujarat appealed against that order to the High Court of Gujarat contending (i) that under Forest Rules of Chhota Udepur State, Chotta Udepur State had exercised rights over three kinds of forest reserved, protected and open, the State of Gujarat was thus competent to issue notification under sec.
4 of the Indian Forest Act, 1947.
(ii) under the rules, Mahuda and teak trees were reserved trees and they are prohibited from being cut; (iii) under the Jagir Abolition Act, Section 5, the solid vested in the jagirdar and not the trees; hence Jagirdars could not have sold the trees and (iv) the agreement executed between the contractor and the Jagirdars was not enforceable at law; the contractor could not claim any right/interest under the same.
The High Court negatived all the contentions and the rights accruable to the contractor under the agreement and allowed the appeal of the State and dismissed the suit filed by the appellants.
Hence this appeal by the appellants.
Dismissing the appeal, this Court HELD: The trees in question stood on the area which was declared as reserved forest under the forest rules framed by the Chhota Udepur State.
[512 B] Once it is established that during the time of existence of erstwhile State of Chhota Udepur an area admeasuring 290 acres and 14 gunthas in village Nalej was declared as re serve forest and jagirdars had no right at all in the trees standing in such area of reserved forest, the Jagirdars cannot be considered to have acquired a greater right on 28.7.48 when the Forest Rules of Chhota Udepur State were repealed by the Application of Laws Order.
[514 C D]


judgement:
Appeal No. 4488 of 1991.
From the Judgment and Order dated 8.4.91 of the Delhi High Court in C.W.P. No. 749 of 1990.
R. Mohan for the Appellant.
F.S.Nanman, Kailash Vasudev, Ms. Alpana Kitpal and M.J.Paul for the Respondents.
The following order of the Court was delivered: K. JAGANNATHA SHETTY, J. Leave granted.
When we are moving forward to achieve the constitutional guarantee of equal rights for women the life Insurance Corporation of India seems to be not moving beyond the status quo.
The case on hand illustrates this typical atti tude of the Corporation.
The petitioner applied for the post of Assistant in the Life Insurance Corporation of India ("the Corporation").
She was called for written test and also for interview.
She was successful in both the tests.
She was asked to fill a decla ration form which she did and submitted to the Corporation on 25 May 1989.
On the same day, she was also examined by a lady doctor and found medically fit for the job.
The Doctor who examined the petitioner was in the approved panel of the Corporation.
The petitioner was directed to undergo a short term training programme.
After successful completion of the training she was given an appointment letter dated 25, Sep tember 1989.
She was appointed as Assistant in the Corpora tion.
She was put on probation for a period of 6 months.
She was entitled to be confirmed in the service subject to satisfactory work report.
The petitioner took leave from 9 December 1989 till 8 March 1990.
In fact, she applied for maternity leave on 27 December 1989 followed by medical certificate dated 6 Janu ary.
She was admitted to the Nursing Home of Dr. Hira Lal on 10 January 1990.
She delivered a full term baby on 11 January 1990.
She was discharged from Nursing Home on 19 January 1990.
On 13 February 1990, the petitioner was discharged from the serv 149 ice.
It was during the period of her probation.
It would appear from the order of discharge that no ground was as signed in it and it seems to be a discharge simplicitor.
The petitioner moved the High Court under Article 226 of the Constitution challenging that order on the ground that it was not a discharge simplicitor but based on some discrepan cy in the declaration made by her before joining the serv ice.
The Corporation in the counter resisted the case stat ing that the petitioner 's work was not satisfactory and as such under the terms of the appointment she was discharged without notice and without assigning any reason.
The High Court refused to interfere with the termination.
The High Court observed that the Petitioner 's work during the period of probation was found to be not satisfactory.
The petitioner has now appealed to this Court.
When the appeal was listed for preliminary hearing this Court issued notice for final disposal and made an order as follows: "The facts of the case compel us to issue an interim mandamus directing the respondents to put the petitioner back to service and we accordingly issue a direction to the respond ent to reinstate the petitioner within 15 days from the date of receipt of this order.
" The Corporation upon service has filed the counter seeking to justify the termination of the petitioner 's services.
It has been stated that the Corporation discharged the service of the petitioner while she was still a proba tioner.
At the time of discontinuing her services as a probationer, no reasons were given and it was an order of discharge simplicitor.
No stigma was imputed to the peti tioner.
The petitioner was on leave from 9 December 1989 till 8 March 1990.
The petitioner had deliberately withheld to mention the fact of being in the family way at the time of filling up the declaration form before medical examina tion for fitness.
The petitioner concealed the fact of her being in the family way.
this was revealed later when she informed the Corporation that she had given birth to a daughter.
The Corporation also made reference to the terms of the declaration as filled in by the petitioner on 25 May 1989: "6.
To be filled in by female candidates only in the presence of the Medical examiner: a) Are you married Yes.
b) If so, please state: 150 i) Your Husband 's Name in full & occupation Mr. PRADEEP MATHUR, Law Officer, Central Pollution Control Board, Nehru Place, New Delhi.
ii) State the number of children, if any, and their present ages: One daughter: 1 year and 6 months.
iii) Have the menstrual periods always been regular and painless, and are they so now? . Yes.
iv) How many conceptions have taken place? How many have gone full term? One.
v) State the date of last menstruation: . 29th April, 1989.
vi) Are you pregnant now? .
No. vii) State the date of last delivery: 14th November, 1987.
viii) Have you had any abortion or miscarriage? .
No." It was further alleged in the counter affidavit that the declaration given by the petitioner was false to the knowl edge of the petitioner inasmuch as, as per her own averment she had delivered a full term baby on 11 January 1990.
The petitioner to her own knowledge, could not have had a men struation cycle on 29 April 1989 as stated by her in the declaration on 25 May 1989.
Dr. S.K. Gupta, MD, of Dr. Hira Lal Child & Maternity Home, where the petitioner was admit ted for delivery has certified that the petitioner had LMP on 3 April 1989.
A copy of the certificate of Dr. Hira Lal has also been produced as Annexure to the Counter Affidavit.
It was asserted that the petitioner had deliberately given in her declaration to the Corporation wrong date of menstru ation as 29 April 1989 and she had given her correct date of LMP as 3 April 1989 to Dr. S.K. Gupta.
If she had mentioned the correct date of her menstruation in her declaration her appointment would have been deferred as per rules.
It was also contended that the decision to discharge the petitioner from the service of the Corporation was on 2 grounds: (1) because of a false declaration given by her at the very initial stage of her service; and (2) her work during the period of probation was not satisfactory.
Reference was also made to the Instruction 16 issued by the Corporation as to the Medical examination for recruit ment of Class 1II and Class IV staff.
Clause 16 of the Instructions reads as trader: "16.
MEDICAL EXAMINATION. ' No person shall be appointed to the services of the Corporation unless he/she has been certified to be of sound constitu 151 tion and medically fit for discharging his/her duties.
The certificates in the form given in Annexure IX should be from a doctor, duly authorized for the purpose by the Appointing Authority.
If at the time of medical examina tion, any lady applicant is found to be preg nant, her appointment to the Corporation shall be considered three months after the delivery.
This would be subject to a further medical examination at the candidate 's cost and sub ject to the ranking list continuing to be valid.
" We have examined the matter carefully.
We have nothing on record to indicate that the petitioner 's work during the period of probation was not satisfactory.
Indeed, the reason for termination seems to be different.
It was the declara tion given by her at the stage of entering the service.
It is said that she gave a false declaration regarding the last menstruation period with a view to suppress her pregnancy.
It seems to us that the petitioner cannot be blamed in this case.
She was medically examined by the Doctor who was in the panel approved by the Corporation.
She was found medically fit to join the post.
The real mischief though, unintended is about the nature of the declaration required from a lady candidate.
The particulars to be furnished under columns (iii) to (viii) in the declaration are indeed embar rassing if not humilating.
The modesty and self respect may perhaps preclude the disclosure of such personal problems like whether her menstrual period is regular or painless, the number of conceptions taken place; how many have gone full term etc.
The Corporation would do well to delete such columns in the declaration.
If the purpose of the declara tion is to deny the maternity leave and benefits to a lady candidate who is pregnant at the time of entering the serv ice (the legality of which we express no opinion since not challenged), the Corporation could subject her to medical examination including the pregnancy test.
In the circumstances the interim order already issued is made absolute.
We however, direct that the appellant is not entitled to the salary from the date of discharge till her reinstatement.
With this direction the appeal stands dis posed of but no order as to costs.
S.B. Appeal allowed.

dataset_name: IN-Abs

summary:
The petitioner applied for the post of assistant in the Life Insurance Corporation of India.
She was called for written test and also for interview and was successful in both the tests.
She had to file a declaration form which she submitted to the corporation on May 25, 1989.
On the same day she was also examined by a lady doctor who was on the panel of the corporation and found medically fit for the job.
Thereafter she underwent a short term training programme and given a letter of appointment dated September 25, 1989.
She was put on probation for a period of six months and was entitled to be confirmed in the service, subject to satis factory work report.
The petitioner took leave from December 9, 1989 till March 8, 1990.
She applied for maternity leave on December 27, 1989 followed by medical certificate dated January 6, 1990.
She delivered a full term baby on January 11, 1990 in Dr. Hira Lal 's Nursing Home and was discharged from there on January 19, 1990.
On February 13, 1990 the petitioner was discharged from the service during her period of probation.
No ground was assigned and the order seemed to be a discharge simplicitor.
The petitioner moved the High Court, and the High Court, refused to interfere with the termination since the peti tioner 's work during the period of probation.
was found to be not satisfactory.
Thereafter the petitioner appealed to this Court.
After preliminary hearing the court issued an interim mandamus directing 147 the respondent to put the petitioner back to service within 15 days from the date of receipt of the court order and also issued notice for final hearing.
The corporation upon service of notice, filed the coun ter seeking to justify the termination of petitioner 's services on two grounds: (1) that the petitioner had delib erately withheld to mention the fact of being in the family way at the time of filling up the declaration form before medical examination for fitness.
The same was revealed only when she informed the corporation that she had given birth to a daughter.
(2) Her work during the probation was not satisfactory.
So it was an order of discharge simplicitor.
The Corporation further made reference to Instruction No.16 as to the medical examination for recruitment of class 1II and IV staff, wherein for the purpose of appointment, if at the time of medical examination any lady applicant is preg nant, her appointment shall be considered three months after the delivery.
Granting the appeal, the Court, HELD: While we arc moving forward to achieve the consti tutional guarantee of equal rights for women, the Life Insurance Corporation of India seems to be not moving beyond the status quo.
In the instant case there is nothing on record to indicate that the petitioner 's work during the probation was not satisfactory.
The reason for termination was only the declaration given by her at the stage of enter ing the service, though the petitioner was medically exam ined by the lady doctor and found her medically fit to join the post.
[148 D, E, 151 C] The real mischief though unintended is the nature of the declaration required from a lady candidate specially the particulars required to be furnished under columns (iii) to (viii) which are indeed embarrassing if not humilating.
The modesty and self respect may perhaps preclude the disclosure of such personal problems.
The corporation would do well to delete such columns in the declaration.
If the purpose of the declaration is to deny the maternity leave and benefits to a lady candidate who is pregnant at the time of entering the service, the Corporation could subject her to medical examination including the pregnancy test.
[151 D F] The interim order already given is made absolute though the appellant is not entitled to the salary from the date of discharge till her reinstatement.
[151 G] 148


judgement:
vil Appeal No. 4336 (NL) of 1991, From the Judgment and Order dated 14.9.1989 of the Madras High Court in Writ Appeal No. 697 of 1989.
M.K. Ramamurthy, Mrs. Chandan Ramamurthy and M.A.Krish namurthy for the Appellants.
F.S.Nariman, R.F.Nariman, T.S.Gopalan, Raian Karanjiwa la, Mrs. Manik Karanjiwala, Mrs. V.S.Rekha and Sajai Singh for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH, J.
Special leave granted.
The Reptakos Brett & Co. Ltd. (hereinafter called the 'Company ') is engaged in the manufacture of pharmaceutical and dietetic speciality products and is having three units, two at Bombay and one at Madras.
The Madras factory.
with which we are concerned, was set up in the year 1959.
The Company on its own provided slab system of Dearness Allow ance (DA) which means the DA paid to the workmen was linked to cost of living index as well as the basic wage.
The said double linked DA Scheme was included in various settlements between the Company and the workmen and remained operative for about thirty years.
The question for our consideration is whether the Company is entitled to re structure the DA scheme by abolishing the slab system and substituting the same by the Scheme prejudicial to the workmen on the ground that the slab system 134 has resulted in over neutralisation thereby landing the workmen in the high wage island.
The first settlement between the Company and the workmen was entered into on August 11, 1964.
While accepting the double linked DA it further provided variable DA limited to the cost of living index up to 5.41 5.50.
Further relief was given to the workmen in the settlement dated July 18, 1969 when the limit on the variable DA was removed.
The Company revised the rates of DA on August 7, 1971.
Thereafter, two more settlements were entered into on July 4, 1974, and January 4, 1979, respectively.
Slab system with variable DA continued to be the basic constituent of the wage structure in the company from its inception.
The position which emerges is that in the year 1959 the Company on its own introduced slab system of DA.
In 1964 in addition, variable DA to the limited extent was introduced but the said limit was removed in the 1969 settlement.
The said DA scheme was reiterated in the 1979 settlement.
It is thus obvious that the slab system of DA introduced by the Company in the year 1959 and its progressive modifications by various settlements over a period of almost thirty years, has been consciously accepted by the parties and it has become a basic feature of the wage structure in the Company.
The workmen raised several demands in the year 1983 which were referred for adjudication to the Industrial Tribunal, Madras.
The Company in turn made counter demands which were also referred to the said Tribunal.
One of the issues before the Tribunal was as under: "Whether the demand of the Management for re structuring of the dearness allowance scheme is justified, if so, to frame a scheme?" The Tribunal decided the above issue in favour of the Company and by its award dated October 14, 1987 abolished the existing slab system of DA and directed that in future dearness allowance in the Company, be linked only to the cost of living index at 33 paise per point over 100 points of the Madras City Cost of living Index 1936 base.
The Tribunal disposed of the two References by a common award.
The Company as well as the workmen filed separate writ petitions before the Madras High Court challenging the award of the Tribunal.
While the two writ petitions were pending the parties filed a joint memorandum dated June 13, 1988, before the High Court in the following terms: 135 "In view of the settlement dated 13.5.1988 entered into between the parties, a copy of which is enclosed, both the parties are not pressing theft respective writ petitions except with regard to the issue relating to re structuring of dearness allow The learned Single Judge of High Court upheld the find ings of the Tribunal on the sole surviving issue and dis missed the writ petition of the workmen.
The writ appeal filed by the workmen was also dismissed by the High Court by its judgment dated September 14, 1989.
The present appeal by special leave is against the award of the Tribunal as upheld by the High Court.
Mr. M.K. Ramamurthy, learned counsel for the appel lants has raised following points for our cosideration: (i) The Tribunal and the High Court grossly erred in taking Rs. 26 as a per war wage of a worker in Madras region and, on that arith metic, reaching a conclusion that the rate of neutralisation on the basis of cost of living index in December 1984 was 192 per cent.
(ii) Even if it is assumed that there was over neutralisation unless the pay structure of the workmen is within the concept of a 'living wage ' and in addition it is proved that financially the Company is unable to bear the burden the existing pay structure/DA scheme cannot be revised to the prejudice of the work men.
(iii) In any case the DA scheme which was voluntarily introduced by the Company and reiterated in various settlements cannot be altered to the determent of the workmen.
" Before the points are dealt with, we may have a fresh look into various concepts of wage structure in the industry.
Broadly, the wage structure can be divided into three categories the basic "minimum wage" which provides bare subsistence and is at poverty line level, a little above is the "fair wage" and finally the "living wage" which comes at a comfort level.
It is not possible to demarcate these levels of wage structure with any preci sion.
There are, however, well accepted norms which broadly distinguish one category of pay structure from another.
The Fair Wages Commit tee, in its report published by the Government of India, Ministry of Labour, in 1949, defined the "living wage" as under: "the living wage should enable the male earner to provide for himself and his family not merely the bare essentials of food, 136 clothing and shelter but a measure of frugal comfort including education for the the chil dren, protection against illhealth, require ments of essential social needs, and a measure of insurance against the more important mis fortunes including old age." "The Committee 's view regarding "minimum wage was as under: "the minimum wage must provide not merely for the bare sustenance of life but for the preservation of the efficien cy of the worker.
For this purpose the minimum wage must also provide for some measure of education.
medical require ments and amenities.
" The Fair Wages Committee 's Report has been broadly approved by this Court in Express Newspapers (P) Ltd. vs Union of India, and Standard Vacuum Refining Co. of India vs Its Workmen and Anr., ; The Tripartite Committee of the Indian Labour Conference held in New Delhi in 1957 declared the wage policy which was to be followed during the Second Five Year Plan.
The Committee accepted the following five norms for the fixation of 'minimum wage ': "(i) In calculating the minimum wage, the standard working class family should be taken to consist of 3 consumption units for one earner; the earnings of women, children and adolescents should be disregarded.
(ii) Minimum food requirement should be calculated on the basis of a net intake of calories, as recommended by Dr. Aykroyd for an average Indian adult of moderate activity.
(iii) Clothing requirements should be esti mated at per capita consumption of 18 yards per annum which would give for the average workers ' family of four, a total of 72 yards.
(iv) In respect of housing, the rent corre sponding to the minimum area provided for under Government 's Industrial Housing Scheme should be taken into consideration in fixing the minimum wage.
(v) Fuel, lighting and other 'miscellaneous ' items of expenditure should constitute 20% of the total minimum wage.
" This Court in Standard Vacuum Refining Compa ny 's case (supra) has referred to the above norms with approval.
The concept of 'minimum wage ' is no longer the same as it was in 137 1936.
Even 1957 is way behind.
A worker 's wage is no longer a contract between an employer and an employee.
It has the force of collective bargaining under the labour laws.
Each category of the wage structure has to be tested at the anvil of social justice which is the live fibre of our society today.
Keeping in view the socio economic aspect of the wage structure, we are of the view that it is necessary to add the following additional component as a guide for fixing the minimum wage in the industry: "(vi) children education, medical require ment, minimum recreation including festivals/ceremonies and provision for old age, marriages etc.
should further constitute 25% of the total minimum wage.
The wage structure which approximately answers the above six components is nothing more than a minimum wage at subsist ence level.
The employees are entitled to the minimum wage at all times and under all circumstances.
An employer who cannot pay the minimum wage has no right to engage labour and no justification to run the industry.
A living wage has been promised to the workers under the constitution.
A 'socialist ' framework to enable the working people a decent standard of life, has further been promised by the 42nd Amendment.
The workers are hopefully looking forward to achieve the said ideal.
The promises are pilling up but the day of fulfilment is nowhere in sight.
Industrial wage looking as a whole has not yet risen higher than the level of minimum wage.
Adverting to the first point raised by Mr. Ramamurthy it would be convenient to quote from the award the conten tions of the Company and the findings reached by the Tribu nal.
The Company 's case as noticed by the tribunal is as under: "It is stated that the pre war wage of a worker in the Madras Region was Rs.26.
It is evidenced by the decision of the Labour Appel late Tribunal reported in 1951 1I L.L.J. page 314 (Buckingham and Carnatic Mills vs Their workers) and 1951 II L.L.J. page 718 (Good Pastor Press vs Their workers).
It is contend ed that taking the pre war minimum wage of worker at Madr,ks being R:,. 26 per month equivalent to 100 per cent neutralization the rate of Dearness Allowance at 26 paisa for every point above 100 points of cost of living index would work out to 100 per cent neutrali sation.
On the above basis at 138 2780 points of cost of living index in Decem ber 1984, the 100 per cent neutralised wage should be Rs. 722.80 (basic wage of Rs. 26 plus dearness allowance of Rs. 696.80).
As against the above wage a workman of lower grade in the Petitioner 'Company in December 1984 was getting a total wage of Rs. 1,`394/comprising of basic plus dearness allowance plus house rent allowance and the rate of neutralisation of dearness allowance correspondingly works out to 192 per cent.
" The Tribunal accepted the above contentions of the Company.
The evidence produced by the Company, regarding prevailing DA schemes in the comparable industries in the region, was also taken into consideration.
The Tribunal finally decided as under: "Taking an overall view of the rate of dear ness allowance paid by these comparable con cerns in the region and the higher total emoluments received by the workmen in this establishment, the slab system of dearness allowance now in existence shall stand abol ished and in future, dearness allowance in the Petitioner Management would be linked only to the cost of living index at 33 paise per point over 100 points of the Madras City Cost of Living Index 1936 base and it shall be effec tive from the month in which the award is published in the Tamil Nadu Gazette.
" The learned Single Judge of the High Court upheld the above findings of the Tribunal.
The Division Bench of the High Court, in writ appeal, approved the award and the judgment of the learned Single Judge in the following words "The learned judge has observed that the counsel for the Management had taken him through all the relevant materials which were filed in the form of Exhibits before the Tribunal in order to show that the matter of over neutralisation cannot be in dispute.
Thus the learned Judge proceeded on the basis that there is over neutralisation which called for devising a scheme for restructuring the wage scale.
This finding cannot be interfered with as no materials have been placed before us by the learned counsel for the appellant to show that the exhibits which were perused by the learned Judge do not support his conclusion.
Hence, we hold that the contention that there are no compelling circumstances in this case to revise the pattern of dearness allowance is unsustainable.
" 139 According to the Company the only purpose of DA is to enable a worker in the event of a rise in cost of living to purchase the same amount of goods of basic necessity as before.
In other words the DA is to neutralise the rise in prices.
the said purpose can be achieved by providing maxi mum of 100 per cent neutralisation.
Accepting the calcula tions of the Company based on Rs. 26 being the pre war (1936) minimum wage in Madras region the Tribunal came to the finding that there was 192 per cent neutralisation.
The Tribunal accepted Rs. 26 as the pre war minimum wage in Madras region on the basis of the decisions of Labour Appellate Tribunal of India in Buckingham and Carnatic Mills Ltd. vs Their workers, and Good Pastor Press vs Their workers, In Buckingham case the appellate tribunal came to the conclusion that the basic wage of the lowest category of operatives on the living cost of index of the year 1936 was Rs. 28.
The said wage included Rs.16 1/2 as expenses on diet.
The workers relied upon the Textile Enquiry Commit tee 's report to claim 25% addition to the diet expenses.
The Appellate Tribunal rejected the report on the ground that the recommendations in the said report were for the purpose of attaining the standard of "living wage" and not of 'min imum wage '.
The Appellate Tribunal stated as under: "The Union however, contends that Dr. Akroyd revised his opinion when submitting a specially prepared note to assist the Textile Enquiry Committee, Bombay of which Mr. Justice Divatia was the Chairman, where he is said to have stated that 25 per cent more will have to be added for obtaining a balanced diet for a minimum wage earner.
The report of that Enquiry Committee, which was published in 1940, however, shows that Dr. Akroyd added 25 per cent as the costs of the extra items to his standard menu such as sugar etc., for the purpose of attaining the standard menu of 'living wages ' (final report of the Textile Labour Enquiry Committee 1940, Vol.
II, pages 70 to 71).
Therefore, for the purpose of fixing 'minimum wages ' that 25 per cent is not to be added.
" The question as to whether the recommendations of Textile Enquiry Committee were in relation to 'living wage ' or 'minimum wage ' came for consideration before this Court in Standard Vacuum case (supra).
This Court held as under: "It is obvious that the Committee was really thinking of what 140 is today described as the minimum need based wage, and it found that judged by the said standard the current wages were deficient.
In its report the Committee has used the word 'minimum ' in regard to some of the constitu ents of the concept of living wage, and its calculations show that it did not proceed beyond the minimum level in respect of any of the said constituents.
Therefore, though the expression 'living wage standard ' has been used by the Committee in its report we are satisfied that Rs. 50 to Rs. 55 cannot be regarded as anything higher than the need based minimum wage at that time.
If that be the true position the whole basis adopted by the appellant in making its calculations turns out to be illusory." This Court, therefore, in Standard Vacuum case came to the conclusion that the Textile Labour Committee Report in the year 1940 in its calculations did not proceed beyond the minimum level of the wage structure.
It was further held that Rs. 50 to Rs. 55 was the need based minimum wage in the year 1940.
The Appellate Tribunal in Buckingham case, therefore misread the Textile Committee Report and was not justified in rejecting the same on the ground that it related to the category of 'living wage ' We are of the view that it would not be safe to accept the findings of the Appellate Tribunal in Buckingham case as the basis for fixing the wage structure to the prejudice of the workmen.
This court in Standard Vacuum case (supra) has further held that in Bombay the minimum wage in the year 1940 was Rs.50 to Rs.55.
On that finding it is not possible to accept that the minimum wage in the year 1936 in Madras region was Rs.26/28.
So far as the Good Pastor Press case is concerned the question of determining the minimum wage in per war 1936 was not before the Appellate Tribunal.
It only mentioned the fact that Rs.26 was held to be so by some of the subordinate tribunals.
There was no discussion at all on this point.
The Tribunal 's reliance on this case was wholly misplaced.
In any cause we are of the opinion that purchasing power of today 's wage cannot be judged by making calculations which are solely based on 30/40 years old wage structure.
The only reasonable way to determine the category of wage structure is to evaluate each component of the category concerned in the light of the prevailing prices.
There has been sky rocking rise in the prices and the inflation chart is going up so fast that the only way to do justice to the labour is to determine the money value of various components of the minimum wage in the context of today.
141 We may now move on to the second and third point raised by Mr. Ramamurthy.
We take up these points together.
Mr. F.S. Nariman, learned counsel appearing for the Company, contended that the existing DA scheme can be revised even to the prejudice of the workmen and for that proposition he relied upon the judgment of this Court in M/s. Crown Alumin ium works vs Their Workmen; , Mr. Rama murthy has, however, argued that even if the contention of Mr. Nariman is accepted in principle, the Company has not been able to make out a case for such a revision.
In M/s. Crown Aluminium Works case this Court speaking through Gajendragadkar, J.(as he then was) held as under: "The question posed before us by Mr. Sen is: Can the wage structure fixed in a given indus try be never revised to the prejudice of its workmen? Considered as a general question in the abstract it must be answered in favour of Mr. Sen.
We do not think it would be correct to say that in no conceivable circumstances can the wage structure be revised to the prejudice of workmen.
When we make this obser vation, we must add that even theoretically no wage structure can or should be revised to the prejudice of workmen if the structure in question falls in the category of the bare subsistence or the minimum wage.
If the wage structure in question falls in a higher cate gory, then it would be open to the employer to claim its revision even to the prejudice of the workmen provided a case for such revision is made out on the merits to the satisfaction of the tribunal.
In dealing with a claim for such revision, the tribunal may have to con sider, as in the present case whether the employer 's financial difficulties could not be adequately met by retrechment in personnel already effected by the employer and sanc tioned by the tribunal.
The tribunal may also enquire whether the financial difficulties facing the employer are likely to be of a short duration or are going to face the em ployer for a fairly long time.
It is not necessary, and would indeed be very difficult, to state exhaustively all considerations which may be relevant in a given case.
It would, however, be enough to observe that, after considering all the relevant facts, if the tribunal is satisfied that a case for reduc tion in the wage structure has been estab lished then it would be open to the tribunal to accede to the request of the employer to make appropriate reduction in the wage struc ture, subject to such conditions as to time or otherwise that the tribunal may deem fit or expedient to impose.
" 142 The above dicta was reiterated by this Court in Ahmeda bad Mills Owners, Association etc.
vs The Textiles Labour Association, wherein this Court through Gajendragadkar, CJ, laid down as under: "The other aspect of the matter which cannot be ignored is that if a fair wage structure is constructed by industrial adjudication and in course of time, experience shows that the employer cannot bear the burden of such wage structure, industrial adjudication can, and in a proper case should revise the wage struc ture, though such revision may result in the reduction of the wages paid to the employees. . . . if it appears that the employer cannot really bear the burden of the increasing wages bill industrial adjudication, on principle, cannot refuse to examine the employer 's case and should not hesitate to give him relief if it is satisfied that if such relief is not given, the employer may have to close down his business. . .
This principle, however, does not apply to cases where the wages paid to the employees are no better than the basic minimum wage.
If, what the employer pays to his employees is just the basic sub sistence wage, then it would not be open to the employer to contend that even such a wage is beyond his paying capacity.
" The ratio which emerges from the judgments of this Court is that the management can revise the wage structure to the prejudice of the workmen in a case where due to financial stringency it is unable to bear the burden of the existing wage.
But in an industry or employment where the wage struc ture is at the level of minimum wage, no such revision at all, is permissible not even on the ground of financial stringency.
It is, therefore, for the management, which is seeking restructuring of DA scheme to the disadvantage of the workmen to prove to the satisfaction of the tribunal that the wage structure in the industry concerned is well above minimum level and the management is financially not in a position to bear the burden of the existing wage struc ture.
Mr. Ramamurthy further relied upon this Court 's judgment in MonthlyRated workmen at the Wadala factory of the Indian Hume Pipe Co. Ltd. vs Indian Hume Pipe Co. Ltd., Bombay, ; and contended that an employer cannot be permitted to abolish the DA scheme which has worked smoothly for almost thirty years on the plea that the said scheme is more beneficial than the DA schemes adopted by other indus tries in the region.
In the Indian Hume Pipe Co. Ltd case the management pleaded that the dearness allowance enjoyed by the workmen was so high in certain cases that neutralisation was at rates much higher than 100%.
It was further contended that the manage ment did not have the capacity to pay the slab system of DA and in the event of a claim for similar DA by other workmen the management might have to close down the factories.
Khalid, J. spoke for the court as under: "We thought it necessary to refer to the various awards read by Mr.Pai only for the completeness of the judgment.
It has to be borne in mind that in most of these cases, awards were passed at the instance of the employees when demands were made for raising the dearness allowance paid to them.
Here, we have the case of the employer trying to get over a system of dearness allowance which had worked smoothly for 18 years, on the specious plea that at the time the slab system was introduced, it was not in the expectation of anyone that the cost of price index would spiral up so much as to make it impossible for the company to pay according to this scheme.
From the materials available we do not find that this plea can be accepted.
The records produced show that despite this system of dearness allowance the Company has been making profits and has been improving its position year by year. . . we do not think it necessary to deal at length about the evolu tion of the concept of dearness allowance.
Suffice it to say that this Court has, often times, emphasised the need for a living wage to workmen instead of a subsisting wage.
It is indeed a matter of concern and mortification that even today the aspirations of a living wage for workmen remain a mirage and a distant dream.
Nothing short of a living wage can be a fair wage.
It should be the combined effort of all concerned including the Courts to extend to workmen a helping hand so that they get a living wage which would keep them to some extent at least free from want.
It is against this background that a claim by em ployers to change the conditions of service of workmen to their detriment has to be consid ered and it is against this background that we have considered the award review.
We are not satisfied that a case has been made out on the facts available for a change. . . .
The question is often asked as to whether it would be advisa ble for Tribunals and Courts to revise the wage structure of workmen to their prejudice when a dispute arises.
Normally the answer would be in the negative.
Tribunals and Courts can take judicial notice of one fact; and that is that the wages of workmen, except inexcep tionally rare cases, 144 fail within the category of mere "sub sisting wages".
That being so, it would be inadvisable to tinker with the wage structure of workmen except under compelling circum stances.
" We agree with Mr. Ramamurthy that the DA scheme which had stood the test of time for almost thirty years and had been approved by various settlements between the parties has been unjustificably abolished by the Courts below and as such the award of the Tribunal and the High Court Judgments are unsustainable.
Mr. Nariman has also relied on the judgment of this Court in Killick Nixon Ltd. vs Killick & Allied Companies Employees ' Union, to support the findings of the Tribunal and the High Court.
The said case does not lay down that in all cases the slab system of DA should be abolished to the prejudice of the workers.
In the said case this Court on the facts of the case came to the conclusion that the employer had made out a case for putting a ceiling on the dearness allowance.
The ratio of that case cannot be extended to interfere with the existing DA schemes in every case where such schemes are beneficial to the workmen.
Mr. Nariman has invited our attention to para 20 of the Award wherein the tribunal has held as under: "These figures as detailed in exhibit
M 13 would establish that the company is not in a finan cial position to bear the additional burden on account of increased wages.
" From the above finding it was sought to be shown that the Company has proved to the satisfaction of the Tribunal that financially it was not in a position to bear the burden of the existing DA scheme.
We do not agree with the learned counsel.
The Tribunal gave the above finding in the refer ence made on behalf of the workmen asking for bonus increase and various other monetary benefits.
While rejecting the demands of the workmen the Tribunal gave the above finding which related to the additional burden accruing in the event of acceptance of the workers ' demands.
The Tribunal nowhere considered the financial position of the company vis avis the existing DA scheme.
The Company neither pleaded nor argued before the Tribunal that its financial position had so much deteriorated that it was not possible for it to bear the burden of the slab system of DA.
The Tribunal has not dealt with this aspect of the matter while considering the demand of the Company for re structuring the DA scheme.
It has been pleaded by the company that its workmen are in a high wage island and as such the revision of DA scheme was justified.
The 145 Company also produced evidence before the Tribunal to show that comparable concerns in the region were paying lesser DA to its workmen.
On the basis of the material produced before the Tribunal all that the Company has been able to show is that the DA paid by the Company is somewhat higher than what is being paid by the other similar industries in the region.
There is, however, no material on the record to show that what is being paid by the company is higher than what would be required by the concept of need based minimum wage.
In any case there is a very long way between the need based wage and the living wage.
Mr. Nariman reminded us of the limits on our jurisdic tion under Article 136 of the Constitution of India and relying upon Shaw Wallace & Co. Ltd. vs Workmen, and The Statesman Ltd. vs Workmen, ; contended that so long as there is "some basis, some materi al to validate the award" the "jurisdiction under Article 136 stands repelled".
The Tribunal and the High Court, in this case, has acted in total oblivion of the legal position as propounded by this court in various judgments referred to by us.
Manifest injustice has been caused to the workmen by the award under appeal.
We see no force in the contention of the learned counsel.
In view of the above discussion we are of the view that the Tribunal was not justified m abolishing the slab system of DA which was operating in the Company for almost thirty years.
We allow the appeal and set aside the award of the Tribunal and the judgment of the learned Single Judge in the writ petition and of the Division Bench in the Writ Appeal.
The reference of the Company on the issue of re structuring of the dearness allowance is declined and rejected.
The Appellant workmen shall be entitled to their costs through out which we assess at Rs. 25,000.

summary:
The respondent company, in its factory set up at Madras 1959, introduced slab system of dearness allowance (DA) i.e. the DA paid to the workmen was linked to the cost of living index as well as the basic pay.
The double linked DA scheme, being consciously accepted as basic constituent by the company and its workmen in various settlements between them, became basic feature of the wagestructure and remained operative in the company for about 30 years, In the year 1983, a dispute arose between the company and its workmen.
The matter was referred to the industrial Tribunal.
One of the issues before the Tribunal was based on the demand of the Management for restructuring of the dear ness allowance scheme and to frame a new scheme.
The Tribu nal abolished the existing slab system of DA and directed the dearness allowance to be linked only to the cost of living index at 33 paise per point over 100 points at the Madras city cost of living index 1936 base.
Before the High Court, both the parties agreed not to press their respective writ petitions except on the issue of restructuring of 130 DA.
Upholding the findings of the Tribunal on the sole surviving issue, the Single Judge dismissed the workmen 's writ petition.
The intra Court appeal filed by the workmen was also dismissed.
grieved, the workmen filed the appeal by special leave to this Court.
It was contended on behalf of the workmen that the Tribunal and High Court grossly erred in taking Rs. 26 as a pre war wage of a worker in Madras region and holding that the rate of neutralization on the basis of cost of living index in December, 1984 was 192%; that even assuming that there was over neutralization, the existing pay structure/DA scheme could not be revised to the prejudice of the workmen unless their pay structure was within the concept of 'living wage ' and, in addition, it was proved that financially the company was unable to bear the burden; and that the company could not be permitted to abolish the DA scheme to the detriment of the workmen much less on the plea that the said scheme was more beneficial than the DA schemes adopted by other industries in the region.
The respondent, contended that the company had proved to the satisfaction of the Tribunal that financially it was not in a position to bear the burden of existing DA scheme; that its workmen were in a high wage island and as such the revision of DA scheme was justified.
It was also contended that so long as there was some basis and material to vali date the award, the jurisdiction under Article 136 of the Constitution stood repelled.
On the question; whether the Management is entitled to restructure the DA scheme to the prejudice of the workmen on the ground that the existing system had resulted in over neutralization thereby landing the workmen in the high wage island Allowing the appeal of the workmen, this Court, HELD: 1.1.
The management can revise the wage structure to the prejudice of the workmen in a case where due to financial stringency it is unable to bear the burden of the existing wage.
But in an industry or the employment where the wage structure is at the level of minimum wage, no such revision at all, is permissible not even on the ground of financial stringency.
[p. 142 E] Monthly Rated workmen at the Wadala factory of the Indian Hume 131 Pipe Co. Ltd. vs Indian Hume Pipe Co. Ltd., Bombay, ; , relied on.
M/s Crown Aluminium Works vs Their Workmen, ; & Ahmedabad Mills Owners ' Association etc.
vs The Textiles Labour Assosication; , , referred to.
Killick Nixon Ltd. vs Killick & Allied Companies Employ ees Union, , distinguished.
1.2 The employees are entitled to the minimum wage at all times and under all circumstances.
An employer who cannot pay the minimum wage has no right to engage labour and no justification to run the industry.
[p. 137 C] 1.3 It is for the management, seeking to restructure the DA scheme to the disadvantage of the workmen, to prove to the satisfaction of the tribunal that the wage structure in the industry concerned is well above minimum level and the management is financially not in a position to bear the burden of the existing wagestructure.
[p. 142 F] 2.1 'The concept of 'minimum wage ' is no longer the same as it was in 1936.
Even 1957 is way behind.
A worker 's wage is no longer a contract between an employer and an employee.
It has the force of collective bargaining under the labour laws.
Each category of the wage structure has to be tested at the anvil of social justice which is the live fibre of our society today.
[pp. 136 H, 137 A] 2.2 The Tripartite Committee of the Indian Labour Con ference ' 1957 has formulated five norms for the fixation of 'minimum wage ' (i) three consumption units for one earner disregarding earnings of women, children and adolescents; (ii) minimum food requirement based on net intake calories; (iii) clothing requirement at 72 yards per annum for an average working family of four; (iv) house rent correspond ing to minimum area provided for under the Government 's Industrial Housing Scheme; (v) 20% of total minimum wage for fuel, lighting and other miscellaneous items.
[p. 136 D G] Express Newspapers (P) Ltd. vs Union of India, , followed.
Standard Vacuum Refining Co. of India vs Its Workmen & Anr., ; , relied on.
132 Keeping in view the socio economic aspect of the wage structure the following additional component has also to be taken into account: "(vi) children education, medical require ment, minimum recreation including festivals/ceremonies and provision for old age, marriages etc.
should further constitute 25% of the total minimum wage," The wage structure which approximately answers these six components is nothing more than a minimum wage at subsist ence level.
[p. 137 A C] 2.3 In spite of the promise by the Constitution of a living wage and a 'socialist ' framework to enable the work ing people a decent standard of life, industrial wage, looking as a whole, has not yet risen higher than the level of minimum wage.
[p. 137 D E] 3.1 Purchasing power of today 's wage cannot be judged by making calculations which are solely based on 30/40 years old wagestructure.
The only reasonable way to determine the category of wage structure is to evaluate each component of the category concerned in the light of the prevailing prices.
There has been skyrocking rise in the prices and the inflation chart is going up so fast that the only way to do justice to the labour is to determine the money value of various components of the minimum wage in the context of today.
[p. 140 F H] 3.2 In the instant case, the Company neither pleaded nor argued before the Tribunal that its financial position had so much deteriorated that it was not possible for it to bear the burden of the slab system of DA; nor did the Tribunal deal with this aspect of the matter while considering the demand of the Company for re structuring the DA scheme.
[p. 144 F G] 3.3 Although the DA paid by the Company was somewhat higher than what was being paid by the other similar indus tries in the region, yet it could not be shown that what was being paid by the Company was higher than what would be required by the concept of need based minimum wage.
In any case there is a very long way between the need based wage and the living wage.
[p. 145 AB] 4.
The Tribunal and the High Court acted in total oblivion of the legal position.
Consequently, manifest injustice has been caused 133 to the workmen by the award.
It can, therefore, not be said that jurisdiction under article 136 stands repelled.
[p. 145 CD] Shaw Wallace & Co. Ltd. vs Workmen, & The Statesman Ltd. vs Workmen, ; , referred to.
The Tribunal was not justified in abolishing the slab system of DA which had stood the test of time for almost 30 years and had been approved by various settlements between the parties and as such the award of the Tribunal and the High Court judgments were unsustainable.
[pp. 144 AB; 145 DE] Buckingham and Carnatic Mills Ltd. vs Their Workers, [1951] 2 L.L,.
J. 314 & Good Pastor Press vs Their Workers, , referred to.


judgement:
Appeal No. 728 of 1980.
From the Judgment and Order dated 29.11.1978 of the Allahabad High Court in Civil Misc.
Writ No. 2955 of 1977.
Satish Chandra, Ms. Abha jain, Gaurav Jain and Ghayyute Alam for the Appellants Ashok Kumar Srivastava for the Respot, dent.
The Judgment of the Court was delivered by G.N RAY, J.
In this appeal by grant of special leave the appellants, four in number.
being sons of late Shri Wadood Ali Khan, have challenged the legality, validity and propri ety of redetermination of ceiling on lands of the said Wadood All Khan under the Uttar Pradesh Imposition of Ceil ing on Land Holdings Act, 1960 (hereinafter referred to as the Ceiling Act).
The relevant facts of the case of the appellants in appeal are as follows : (a) The appellants are four sons and legal representatives of late Shri Wadood All Khan who had died on 20.8.1974.
It is contended 162 mat in addition to the appellants the said Wadood Ali Khan had left the other heirs and legal representatives, namely, three sons Maskhur Ashud Khan, Mohdud Ali Khan and Mashkoor Ali Khan, widow Smt.
Firdaus Begum and daughters Shabana Begum, Farzana Begum and Qaiser Jahan Begum.
(b) That after the death of Wadood Ali Khan, the Prescribed Authority under the Ceiling Act served a notice under Section 10 of the Ceil ing Act proposing to declare lands to the extent of 178 15 19 bighas of irrigated land as surplus.
Such notice under Section 10 was served on appellant No. 1 although the notice was addressed to the deceased Wadood Ali Khan.
(c) Appellant No. 1 filed objections before the Prescribed Authority and also participated in the proceedings for determination of ceiling.
Such proceeding was decided by the Prescribed Authority by its Judgment dated 29th April, 1975, inter alia partly upholding objections of the appellant and declaring 87 1 19 19 bighas of irrigated lands as sur plus and treating the late Wadood Ali Khan as the tenure holder.
(d) The appellants filed an appeal before the learned Civil Judge against the aforesaid decision of the Prescribed Authority and it is stated in the appeal petition that such appeal was pending.
(e) The Ceiling Act was amended from time to time and in 1976 the Ceiling Act was further amended by the U.P. Act No. 20 of 1976.
Such Amending Act received the assent of the Presi dent on 30th April, 1976 and was published in the U.P. Gazette extraordinary dated 3rd May, 1976.
Various changes in different Sections of the Ceiling Act were introduced by the said U.P. Act 1976.
Section 31 (3) of the said U.P. Act 20 of 1976 provides as follows: 31.(3) Where an order determining surplus land in relation to a tenure holder has been made under the principal Act before the tenth day of October, 1975, the Prescribed Authority (as defined in the principal Act) may, at any time within a period of two years from the said date, re determine the surplus land in accord ance with the principal act as amended by this Act, whether or not any appeal was filed against such order and notwithstanding any appeal (whether pending or decided) against the original order of determination of surplus land.
(f) The Prescribed Authority issued a notice to/he appellant No. 1 on 8th July, 1976 under Section 10(2) of the Act inter alia holding that 199 1 1 bighas of irrigated lands were proposed to be 163 declared surplus.
The appellants filed objec tions to the proposed action of redetermina tion of ceiling by raising various objections.
The Prescribed Authority thereafter disposed of the proceeding of redetermination of ceil ing by order dated 22nd December, 1976 to the effect that 125 3 8 16 bighas of irrigated lands belonging to the said Wadood Ali Khan were surplus which were owned by Wadood Ali Khan as tenure holder on the appointed day.
(g) The appellants preferred an appeal in the Court of District Judge, Saharanpur, against such order dated 22nd December, 1976, but such appeal was dismissed by the learned Additional District Judge by Judgment and Order dated 16th May, 1977.
The appellants thereafter moved a Writ Petition in the Allahabad High Court being Civil Misc.
Writ No. 2955/77 which was disposed of by Order dated 29th November, 1976.
(h) The Writ Petition moved by the appellants were disposed of by the Allahabad High Court inter alia to the effect that previous deter mination of surplus land by the Prescribed Authority did not operate as res judicata and the appellate authority was justified in ignoring the Sale Deed dated October 27,1971.
The High Court of Allahabad, however, held inter alia that the determination about some plots of lands had not been properly made.
Accordingly, the case was remanded to the appellate authority with the direction to the appellate authority to issue notice to the other brothers of the appellants Mr. Satish Chandra, learned senior counsel appearing for the appelants, has strongly contended at the hearing of this appeal that such redetermination could only be made under the provisions of the Act as amended by U.P. Act No. 20 of 1976 in view of the fact that the initiation of the proceed ings for redetermination was made after the said Act 20 of 1976 was enforced.
He has also contended that the notice under Section 10(2) was deliberately issued to the appel lants by ignoring the other heirs of late Wadood Ali Khan although the concerned Prescribed Authority was aware that the said Wadood All Khan had died in 1974.
He had also contended that the notice under Section 10(2) was purported to have been issued under the Amending Act of 1975 although the Amending Act of 1976 had come into force.
Mr. Satish Chandra has also contended that if the Prescribed Authority had prima facie come to the finding that the lands indicated in the notice under Section 10(2) were surplus lands, it was his bounden duty to serve notices on all the heirs of Wadood All Khan and initiation of any proceeding without such notices to all the heirs was void.
In support of this con tention, he has relied upon a Full Bench 164 decision of the Allahabad High Court made in the case of Shantnu Kumar vs State of Uttar Pradesh and Others, 1977 Allahabad Law Report p. 564.
Mr. Satish Chandra has also contended that service of proper notice under Section 9(2) of the Ceiling Act on all the heirs of late Wadood Ali Khan was essential for assuming jurisdiction to redetermine the ceiling lands.
Admittedly, when such notice had not been issued to all the co sharers, no proceeding for redetermina tion could have been lawfully initiated.
Therefore, the adjudication made by the Prescribed Authority and consequen tial adjudication by the appellate authority and the Allaha bad High Court must be held to be illegal, void and without jurisdiction.
He has contended that since two years has elapsed from the enforcement of the said Act 20 of 1976, no fresh redetermination is permissible in law at present.
He has also contended that the purported initiation of the proceedings for redetermination of ceiling on lands and order passed by the Prescribed Authority and the consequen tial orders passed by the appellate authority and by the High Court of Allahabad on the Writ Petitions mentioned hereinbefore must be quashed.
We are, however, not inclined to accept the contention of Mr. Satish Chandra that the proceeding for redetermina tion of ceiling land could not have been initiated by the Prescribed Authority until Notice under Section 9(2) was issued by him to all the heirs and he could only assume jurisdiction for initiation of a proceeding for redetermina tion of ceiling land after serving such notices to all the heirs of late Wadood Ali Khan.
Section 31 (3) of U.P. Act 20 of 1976, in our view, authorises the Prescribed Authority to redetermine the surplus land in relation to the tenure holder if initiated with in two years from October 10, 1975.
Admittedly, the previous determination of ceiling was made before tenth of October, 1975.
Accordingly, under sub Section (3) of Section 31 of the said U.P. Act 20 of 1976, the Prescribed Authority had jurisdiction to initiate the said proceeding and such jurisdiction did not depend on issuance of notice under Section 9(2) of the Ceiling Act to the tenure holder and/or the successors in interest of the tenure holder.
It, however, appears to us that although the Prescribed Authority had jurisdiction to initiate the pro ceeding for redetermination of surplus land and he had in fact initiated such proceeding within two years as referred to in sub section (3) of Section 31 of U.P. Act 20 of 1976, such determination could not have been made without afford ing to the heirs and legal representatives of Wadood Ali Khan an opportunity of being heard and showing cause before the Prescribed Authority.
Admittedly, Wadood Ali Khan had died in 1974 and he said fact was made known to the Pre scribed Authority when the initial determination of surplus lands was made.
It is unfortunate that in spite of said fact, the Prescribed Authority failed and neglected to ascertain the 165 names of all the legal heirs and representatives of Wadood Ali Khan, and did not issue notices to such heirs for rede termination of surplus land.
The High Court of Allahabad has directed to issue notice to other brothers of Wadood Ali Khan.
The High Court has also remanded the case to the appellate authority so that other brothers get opportunity to appear and make submissions.
The High Court has, however, not directed to issue notices to other heirs and legal representatives.
Moreover, in our view, without giving other heirs and legal representatives an opportunity of being heard, adjudication of the case on merits by the concerned authorities or by the High Court was not warranted.
In the aforesaid facts, we dispose of this appeal by setting aside the order passed by the Prescribed Authority on 22nd Decem ber, 1976 and the impugned appellate orders passed by the learned Additional District Judge on 26th May, 1976 and also the impugned decision of Allahabad High Court in Writ Peti tion No. 2955/77.
Mr. Satish Chandra has contended that in view of subsequent changes of the Ceiling Act by the Amend ing Act 20 of 1976, there is no surplus land liable to be vested in the State of Uttar Pradesh.
It is not necessary to express any opinion on such contention of Mr. Satish Chandra in view of the fact that the Prescribed Authority will have to redetermine the case of surplus land on the basis of existing provisions of the Ceiling Act applicable on the relevant date and the parties will get opportunity to make appropriate submissions on fact and law.
The Prescribed Authority is directed to issue notices to all the heirs and legal representatives of late Wadood Ali Khan including the appellants herein and the other heirs and legal representa tives referred to in this judgment.
The Prescribed Authority will decide the question of surplus land in accordance with the provisions of the Ceiling Act after issuing such notices to the heirs and legal representatives of late Wadood Ali Khan and giving such heirs and legal representatives a reasonable opportunity of being heard.
In order to avoid any difficulty and any attempt to delay the disposal of redeter mination of surplus land by the appellants or the other heirs of Wadood Ali Khan, it is directed that if there has been any change in the survivorship of legal representatives of late Wadood Ali Khan or devolution of interest of such heirs by lapse of time, the appellants should inform the Prescribed Authority within a month from today the names and other particulars including the addresses of all such heirs and legal representatives of late Wadood Ali Khan so that appropriate notices may be issued by the Prescribed Authori ty.
If the names and particulars of the legal representa tives are not furnished within a month from today by the appellants to the Prescribed Authority in terms of this direction, liberty is given to the Prescribed Authority to serve the notices to the appellants and to the other heirs mentioned in this judgment by sending such notices under the care of the appellant No. 1, Mansoor Ali Khan, village Kailashpur, Pargana Haraura, 166 Tehsil and P.O. Saharanpur, UP., and it will be deemed that he is representing the interest of other heirs and legal representatives.
The Prescribed Authority is directed to dispose of the proceeding for redetermination of surplus land as early as possible in view of the fact that the matter is pending determination for long.
In the facts of the case, there will be no order as to costs.
R.P. Appeal disposed of.

summary:
The tenure holder of the land in dispute father of the appellants died on 20.8.1974, leaving behind, besides the four appellants, three other sons, three daughters and a widow as his legal heirs and representatives.
After his death a notice under section 10 of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960, proposing to declare certain lands as surplus, addressed to him, was served on his son appellant No. 1 who filed objections.
The Prescribed Authority partly upheld the objections and by its judgment dated 29.4.1975 determined some land as surplus.
The appel lants filed an appeal before the Civil Judge.
Meanwhile the Ceiling Act was amended by the Uttar Pradesh Act 20 of 1976, section 31 (3) whereof provided for redetermination of surplus lands within two years from 10.10.1975 in cases where orders declaring lands as surplus had been made prior to that date, notwithstanding any appeal against the original order of determination of surplus land.
A fresh notice under section 10 (2) of the Act issued to appellant No. 1 proposing to declare certain lands as surplus.
After considering the appellant 's objection the Prescribed Authority by its order dated 22.12.1976 deter mined some land as surplus, holding that the said lands were surplus which were owned by the deceased as tenure holder on the appointed day.
The appeal against the said order was dismissed by the District Judge.
In the writ petition preferred by the appellants, the High Court held that previous determination of surplus lands by the Prescribed Authority did not operate as res judicata, and that the appellate 160 authority was justified in ignoring the sale deed dated 27.10.1971.
It, however, held that the determination about some plots of lands had not been properly made, and remanded the case to the appellate authority with the direction to it to issue notice to the other brothers of the appellants.
Aggrieved, the appellants filed the appeal by special leave to this Court.
It was contended on behalf of the appellants that the proceeding for re determination of ceiling land could not have been initiated by the Prescribed Authority until notice under section 9 (2) of the Act was issued to all the heirs of the deceased tenure holder; that since the redetermination proceedings were initiated after Act 20 of 1976 was en forced, the redetermination could only be made under the provisions of the Act as amended by Act 20 of 1976 and in view of the changes in the Ceiling Act there was no surplus land liable to be vested in the State; that as two years had elapsed from the enforcement of Act 20 of 1976, no redeter mination was permissible thereafter.
Disposing of the appeal and remanding the case to the Prescribed Authority, this Court, HELD: 1.
Section 31(3) of the Uttar Pradesh Imposition of Ceiling on Land (Amendment) Act, 1976 (Act 20 of 1976) authorised the Prescribed Authority to redetermine the surplus land in relation to the tenure holder if initiated within two years from October 10, 1975.
[p. 164 D E] In the instant case, the previous determination of ceiling was made before 10.10.1975.
Accordingly, under section 31(3) of U.P. Act 20 of 1976, the Prescribed Authority had jurisdiction to initiate the said proceedings and such jurisdiction did not depend on issuance of notice under section 9 (2) of the Act to the tenure holder and/or his successors in interest.
[p. 164 EF] Shantnu Kumar vs State of Uttar Pradesh & Ors, 1977 Allahabad Law Reports p. 564, referred to.
Although the Prescribed Authority had jurisdiction to initiate the proceeding for re determination of surplus land and he had in fact initiated such proceeding within two years as referred to in 31(3) of U.P. Act 20 of 1976, yet, such determination could not have been made without affording to the heirs and legal representatives of the tenure holder an opportunity of being heard and showing cause before the Prescribed Authori ty.
[p. 164 FG] The tenure holder had died in 1974 and the said fact was made known to the Prescribed Authority when the initial determination of surplus lands was made.
It was unfortunate that in spite of the said fact, the Prescribed Authority failed and neglected to ascertain the names of all the legal heirs and representatives of the deceased tenure holder and did not issue notice to them for redetermination of surplus land.
[pp. 164 GH; 165 A] 3.
While the High Court directed to issue notice to other brothers and remanded the case to the appellate au thority, it did not direct to issue notices to other heirs and legal representatives.
Morever, without giving other heirs and legal representatives an opportunity of being heard, adjudication of the case on merits by the concerned authorities or by the High Court was not warranted.
[p. 165 AB] 4.
The Prescribed Authority will decide the question of plus land in accordance with the existing provisions of the Ceiling Act applicable on the relevant date, after issuing notices to the heirs and legal representatives of the tenure holder and giving them a reasonable opportunity of being heard.
[P 165 DE]