judgement:
Appeals Nos. 2 and 4 of 1955.
Appeal by Special Leave from the Order dated the 18th day of November 1954 of the Labour Appel 1243 late Tribunal of India, Bombay in Application (Misc.) Bombay No. 773 of 1954.
H. M. Seervai, J. B. Dadachanji and Rajinder Narain, for the appellant in Civil Appeal No. 2 of 1955 and respondent in Civil Appeal No. 4 of 1955.
D. H. Buch and I. N. Shroff, for the respondents in Civil Appeal No. 2 of 1955 and appellants in Civil Appeal No. 4 of 1955.
M. C. Setalvad, Attorney General for India (G. N. Joshi and P. C. Gokhale with him), for the Intervener (Union of India).
February 3.
The Judgment of the Court was delivered by DAS J.
This is an appeal by special leave from the order of the Labour Appellate Tribunal, Bombay Bench, dated the 18th November 1954 which was made on an application made by the appellant company on the 6th September 1954 under section 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950 (Act XLVIII of 1950) which is hereinafter referred to as the 1950 Act.
The appellant company carries on business as assemblers of motor vehicles from "completely knocked down" assemblies imported into India.
There was some appeal pending before the Labour Appellate Tribunal arising out of disputes between the appellant company and its workmen.
It is alleged that the name of the appellant company had been removed by the Government of India from the list of approved manufacturers maintained by them and that, in the result, it had been unable to secure further import licenses for the import of completely knocked down assemblies of motor vehicles and that consequently on and from the 1st November 1953 the company had to lay off a number of its workmen, for it had to operate the various departments of its factory at greatly reduced strength.
As the appellant company saw no prospect of any increase in the scope of its present operation which would provide employment for the workmen who had been laid off, it had become necess 1244 sary to retrench the workmen named in Annexure A to the application.
As those workmen were concerned with the appeal pending before the Labour Appellate Tribunal the company applied to the Appellate Tribunal under section 22 of the 1950 Act for permission to retrench them.
The respondents through their Union, the Automobile Manufacturers ' Employees ' Association, Bombay, filed a written statement on the 1st November 1954 making diverse allegations against the company and contending that the company bad itself to blame for having brought about the lay off.
It was contended that there was no immediate cause for making the application, that the company was motivated by ulterior motives to deprive the workmen of their dues which even according to the company would become due and payable to the workmen on the expiry of the one year of the said lay off period.
It was further alleged that in or about April 1954 the company recalled some of the workmen out of those who had been laid off since November 1953 violating all principles on which a recall should have been made and that by such arbitrary and unscientific recall the company had imposed disproportionate work loads on the recalled workmen, thereby altering their conditions of service to their prejudice.
The respondents maintained that the application was not maintainable in law, was mala fide and should be dismissed.
In the penultimate paragraph of the written statement it was submitted that in the event of the Labour Appellate Tribunal granting the permission in whole or in part such permission should be granted subject to the following conditions: (1) Payment of full wages with dearness allowance for the entire period of lay off; (2) Payment of one month 's notice pay and retrenchment compensation at the rate of one month 's wages including dearness allowance for every completed year of service and part thereof in addition to the gratuity as per the scheme in force in the company; (3) Alternatively to (2) above and in cage the Labour Appellate Tribunal took the view that the 1245 lay off was governed by section 25 C of the , payment of compensation at 50 per cent.
of their wages plus dearness allowance for the entire period of lay off to the date of discharge in addition to the notice pay and gratuity as claimed in (2) above; and (4)Payment of leave wages as per existing rules, taking the entire period of lay off as service.
A number of documents were filed in support of the respective contentions.
The Labour Appellate Tribunal at the very outset of its judgment under appeal states its finding on the merits of the action proposed to be taken by the company as follows: "There can be little doubt that the retrenchment has been occasioned by the failure of the concern to secure sufficient work owing to absence of licenses from Government and, therefore, retrenchment must be regarded as inevitable and the application before us bona fide.
Permission to retrench cannot be refused but for the reasons that we shall state hereafter we make that permission conditional upon the fulfilment of certain terms by the concern".
The company contended before the Labour Appellate Tribunal that its function, while dealing with an application under section 22 of the 1950 Act, was only to give or withhold permission.
This contention was rejected by the Appellate Tribunal with the following observation: "That view is quite untenable as has been repeatedly held by this Tribunal.
We are the authority to whom an application has to be made for permission to retrench, and when such an application is made we must of necessity exercise our judgment and discretion and satisfy ourselves that when the company retrenches it does justice by its employees".
The Labour Appellate Tribunal was clearly influenced by the consideration which, stated in its own words, was as follows: "We do not think that we will be advancing the interest of the employees or of the concern by refusing 1246 retrenchment because the case for retrenchment has been established, and the sooner the workmen are allowed to leave and find for themselves other employment the better for them.
But in order to assure ourselves that on retrenchment the employees receive what in justice they should have, we have decided to give permission to retrench subject to cer tain conditions which in our view are inherent under the Act.
, and which apart from the Act we consider to be just and equitable in the particular circumstances of this case".
In this view of the matter the Labour Appellate Tribunal definitely declined "to leave over the question of compensation for lay off as a legacy of the present troubles; the employees to be retrenched have enough to worry them without having to make claims and have them decided after contest before a Tribunal".
In the result, the Labour Appellate Tribunal gave the appellant company permission to retrench "subject to the terms and conditions of Act XLIII of 1953, provided that each workman is paid at the rate of half basic wages and dearness allowance for the whole period from the date of lay off up to the date of retrenchment (less sums already received as lay off compensation)".
Liberty was given to the company to set off the lay off compensation protanto against the retrenchment relief given by the Act.
Aggrieved by this decision the appellant company applied for and obtained from this Court special leave to appeal against this order.
The respondents subsequently filed an application for special leave to appeal against this decision in so far as the Labour Appellate Tribunal had not allowed their full claim as surmmarised above and in so far as the names of 17 persons had been struck off on the allegation of the company that they were not workmen.
This application of the respondents was also acceded to and the two appeals have been heard together.
The Union of India asked for leave to intervene as important questions of construction of the provisions of the (hereinafter referred to as the 1947 Act) and the 1950 Act were involved.
Such 1247 leave was granted.
and we have heard learned counsel for the Union of India along with learned counsel for the parties.
The question as to the propriety of permitting the names of 17 workmen to be struck off from the application has not been seriously pressed before us.
Only two questions have been canvassed at some length before us, namely . (1)Whether under section 22 of the 1950 Act the Tribunal has jurisdiction to impose conditions when granting the permission asked for; and (2)Whether the conditions imposed in this case are in conformity with law.
It is plain, however, that in case the first question is answered in the negative, the second question will not call for any decision on the present occasion.
In order to correctly answer the questions it will be necessary to bear in mind the general scheme of the two Acts.
The purpose of the 1947 Act is, inter alia, to make provision for the investigation and settlement of industrial disputes.
In order to achieve this avowed object different authorities have been constituted under this Act.
Thus section 3 provides for the constitution of Works Committee whose duty is to promote measures for securing and preserving amity and good relations between the employers and workmen.
The appropriate Government is authorised by section 4 to appoint conciliation officers charged with the duty of mediating in and promoting the settlement of industrial disputes and by section 5 to constitute a Board of Conciliation for promoting the settlement of industrial disputes.
Section 6 empowers the appropriate Government to constitute a Court of Inquiry for enquiring into any matter appearing to be connected with or relevant to an industrial dispute.
Finally, section 7 provides for the constitution of Industrial Tribunals for the adjudication of industrial disputes in accordance with the provisions of the Act.
Section 10 of this Act provides for reference of disputes to a Board, Court or Tribunal.
It will be noticed that under this section it is the appropriate 160 1248 Government which alone can make the reference and set the authority in motion.
The procedure, powers and duties of conciliation officers, Boards, Courts and Tribunals are elaborately prescribed and defined in sections I 1 to 15.
It is to be noted that the conciliation officer, Board, and Court are required to make a report to the appropriate Government while the Tribunal is enjoined to submit its award to the appropriate Government.
The report of a Board or Court and the award of a Tribunal are under section 17 to be published by the appropriate Government within a month from the date of their receipt.
Section 17 A provides that the award of a Tribunal shall become enforceable on the expiry of 30 days from the date of its publication and, subject to the provisions of sub section (1) shall come into operation from such date as may be specified therein and if no date is so specified from the date when the award becomes enforceable as aforesaid.
Section 19 prescribes the period of operation of settlements and awards.
Chapter deals with strikes and lock outs.
Sections 26 to 31 which are grouped together under the heading "Penalties" prescribe punishments.
Section 31 (I) provides that any employer who contravenes the provisions of section 33 shall be punishable with imprisonment for a term which may extend to 6 months or with fine which may extend to Rs. 1,000 or with both.
Section 33, a contravention of which is made punishable by section 31, as it stood before 1950, forbade an employer, during the pendency of any conciliation proceedings or proceedings before a Tribunal, to alter, to the prejudice of the workmen concerned in the dispute, the conditions of service applicable to them immediately before such proceedings, nor, save with the express permission of the conciliation officer, Board or Tribunal, as the case may be, to discharge, dismiss or otherwise punish during the pendency of the proceedings any workman, except for misconduct not connected with the dispute.
It may be noted that under this section the ban on the alteration of the conditions of service was absolute and that permission was necessary only in case of discharge or dismissal or 1249 punishment and even in such case no permission was necessary when the workman was guilty of misconduct not concerned with the pending dispute.
The Only deterrent against a contravention by an employer of the provisions of section 33 was the prosecution of the employer under section 31.
This was hardly any consolation for the workmen, for if an employer took the risk of a prosecution and acted in contra vention of section 33 the workmen could only raise an industrial dispute and ask the appropriate Government to refer the same to a Tribunal but if the Government declined to accede to their prayer the workmen were without any remedy.
This was the position under the 1947 Act before it was amended in 1950.
The 1950 Act was enacted for establishing an Appellate Tribunal in relation to industrial disputes.
Chapter II of the Act deals with the constitution, composition and functions of the appellate tribunal.
Section 7 formulates the jurisdiction of the appellate tribunal.
Section 9 confers on the appellate tribunal all the powers which are vested in a Civil Court when hearing an appeal under the Code of Civil Procedure, 1908.
Section 10 prescribes the period of limitation within which appeals are to be brought before the appellate tribunal.
Under section 15 the decision of the appellate tribunal becomes enforceable on the expiry of 30 days from the date of its pronouncement, provided that where the appropriate Government is of opinion that it would be inexpedient, on public grounds, to give effect to the whole or any part of the decision the appropriate Government may, before the expiry of the said period of 30 days, by order in the Official Gazette either reject the decision or modify it.
Section 22 of this Act provides: "22.
During the period of thirty days allowed for the filing of an appeal under section 10 or during the pendency of any appeal under this Act, no employer sball (a) alter, to the prejudice of the workmen concerned in such appeal, the conditions of service applicable to them immediately before the filing of such appeal, or 1250 (b)discharge or punish, whether by dismissal or otherwise, any workmen concerned in such appeal, save with the express permission in writing of the Appellate Tribunal".
Section 23 on which reliance is placed by learned counsel for the respondents and for the intervener, reads as follows: "23.
Where an employer contravenes the provisions of section 22 during the pendency of proceedings before the Appellate Tribunal, any employee aggrieved by such contravention, may make a complaint in writing, in the prescribed manner to such Appellate Tribunal and on receipt of such complaint, the Appellate Tribunal shall decide the complaint as if it were an appeal pending before it, in accordance with the provisions of this Act and shall pronounce its decision thereon and the provisions of this Act shall apply accordingly". ' Section 29 of this Act provides for penalty for con travention of the provisions of section 22, namely, imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
From what has been stated so far four things are to be noted, namely, (i) that the ordinary and primary jurisdiction of the appellate tribunal is appellate, (ii) that section 22 of this Act confers on the appellate tribunal a special jurisdiction which is in the nature of original jurisdiction, (iii) that section 23 also vests in the tribunal an additional jurisdiction to decide the complaint as if it were an appeal pending before it; and (iv) that section 23 confers on the workmen an additional remedy which they did not have under the 1947 Act.
To fill up the lacuna in the 1947 Act section 34 of the 1950 Act provided for certain amendments of the 1947 Act.
Amongst other things, it substituted a new section for the old section 33 of the 1947 Act.
The new section 33 runs as follows "33.
During the pendency of any conciliation proceedings or proceedings before a Tribunal in respect of any industrial dispute, no employer shall 1251 (a)alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings; or (b)discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute, save with the express permission in writing of the conciliation officer, Board or Tribunal, as the case may be".
It will be noticed that this section has made several changes.
Thus under this section provision is made for obtaining permission as a condition precedent both for altering the conditions of service and for discharging or punishing the workmen and no exception is made for a case of misconduct unconnected with the pending dispute.
Besides this, the following new section was added to the 1947 Act as section 33 A: "33 A. Where an employer contravenes the provisions of section 33 during the pendency of proceedings before a Tribunal, any employee aggrieved by such contravention, may make a complaint in writing, in the prescribed manner to such Tribunal and on receipt of such complaint that Tribunal shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit its award to the appropriate Government and the provisions of this Act shall apply accordingly".
It may be pointed out that the new sections 33 and 33 A thus inserted into the 1947 Act confer distinct benefits on the workmen and give some additional jurisdiction and power to the authorities mentioned therein.
Section 33 A enjoins the Tribunal to decide the complaint "as if it were a dispute referred to or pending before it" and to submit its award to the appropriate Government and provides that the provisions of the Act shall apply to the award.
It is quite clear that the provisions of these two new sections 33 and 33 A of the 1947 Act correspond to and are in pari materia with the provisions of sections 22 and 23 of the 1950 Act and are more or less in similar terms.
The question for our conside 1252 ration is: What are the meaning, scope and effect of these sections.
A cursory perusal of section 33 A of the 1947 Act as well as section 23 of the 1950 Act will at once show that it is the contravention by the employer of the provisions of section 33 in the first case and of section 22 in the second case that gives rise to a cause of action in favour of the workmen to approach and move the respective authority named in the section and this contravention is the condition precedent to the exercise by the authority concerned of the additional jurisdiction and powers conferred on it by the sections.
The authority referred to in the sections is, as we have seen, a Court of limited jurisdiction and must accordingly be strictly confined to the exercise of the functions and powers actually conferred on it by the Act which constituted it.
What, then, are the scope and ambit of the functions and powers with which it has been vested by these sections? When an employer contravenes the provisions of section 33 of the 1947 Act or of section 22 of the 1950 Act the workmen affected thereby obviously have a grievance.
That grievance is two fold.
In the first place it is that the employer has taken a prejudicial action against them without the express permission in writing of the authority concerned and thereby deprived them of the salutary safeguard which the legislature has provided for their protection against victimisation.
In the second place, and apart from the first grievance which may be called the statutory grievance, the workmen may also have a grievance on merits which may be of much more seriousness and gravity for them, namely, that in point of fact they have been unfairly dealt with in that their interest has actually been prejudicially affected by the highhanded act of the employer.
These sections give the workmen the right to move the authority by lodging a complaint before it.
This is a distinct benefit given to them, for, as we have seen, apart from these sections, the workmen have no right to refer any dispute for adjudication.
This complaint is required to be made in the prescribed manner.
Form DD prescribed by rule 51 A of the Industrial 1253 Disputes (Central) Rules, 1947, framed under section 38 of the 1947 Act, like Form E prescribed under section 35 of the 1950 Act, requires the complaining workmen to show in their petition of complaint not only the manner in which the alleged contravention has taken place but also the grounds on which the order or the act of the management is challenged.
This clearly indicates that the authority to whom the complaint is made is to decide both the issues, namely (1) the fact of contravention and (2) the merits of the act or order of the employer.
It is also clear that under section 33 A of the 1947 Act the authority is to adjudicate upon the complaint "as if it were a dispute referred to or pending before it" and under section 23 of the 1950 Act the authority is to decide the complaint "as if it were an appeal pending before it".
These provisions quite clearly indicate that the jurisdiction of the authority is not only to decide whether there has been a failure on the part of the employer to obtain the permission of the authority before taking action but also to go into the merits of the complaint and grant appropriate reliefs.
The extreme contention that under section 33 A of the 1947 Act, on a finding that there has been a contravention of the provisions of section 33, the Tribunal 's duty is only to make a declaration to that effect, leaving the workmen to take such steps under the Act as they may be advised to do, has been negatived by the Labour Appellate Tribunal in Serampore Belting Mazdoor Union vs Serampore Belting Co., Ltd.(1) and by the Bombay High Court in Batuk K. Vyas vs Surat Borough Municipality(1).
The same principle has been accepted and applied by a Full Bench of the Labour Appellate Tribunal to a case under section 23 of the 1950 Act in Raj Narain vs Employers ' Association of Northern India(1).
We find ourselves in agreement with the construction placed upon section 33 A of the 1947 Act and section 23 of the 1950 Act by these decisions.
In our view the scope and ambit of the jurisdiction conferred on the authority named in those (1) (2) (3) , 1254 sections is wider than that conferred on the Criminal Court by section 31 of the 1947 Act and section 29 of the 1950 Act.
The Criminal Court under the two last mentioned sections is only concerned with the first issue herein before mentioned, namely, yea or nay whether there has been a contravention of the respective provisions of the sections mentioned therein, but the authority exercising jurisdiction under section 33 A of the 1947 Act and section 23 of the 1950 Act is to adjudicate upon or decide the complaint "as if it were a dispute referred to or pending before it" in the first case or "as if it were an appeal pending before it" in the second case.
The authority is, therefore, enjoined to go into the merits of the act complained of under section 33 A of the 1947 Act and section 23 of the 1950 Act.
In this sense the jurisdiction of the authority named in these two sections is certainly wider than that of the Criminal Court exercising jurisdiction under the penal sections referred to above.
Having regard to the scope of the enquiry under section 33 A of the 1947 Act and section 23 of the 1950 Act it must follow that the power of the authority to grant relief must be co extensive with its power to grant relief on a reference made to it or on an appeal brought before it, as the case may be.
The provision that the authority concerned must submit its award to the appropriate Government and that the provisions of the respective Acts would be applicable thereto also support the view that the decision of the authority is to partake of the nature of a decision on the merits of an industrial dispute which when published by the appropriate Government will become enforceable under the respective Acts.
It follows, therefore, that the authority referred to in these sections must have jurisdiction to do complete justice between the parties relating to the matters in dispute and must have power to give such relief as the nature of the case may require and as is also indicated by the prayer clause mentioned in the two Forms DD and E referred to above.
In short, these two sections give to the workmen a direct right to approach the Tribunal or Appellate Tribunal for the 1255 redress of their grievance without the intervention of the appropriate Government which they did not possess before 1950 and they provide for speedy determination of disputes and avoid multiplicity of proceedings by giving complete relief to the workmen in relation to their grievances arising out of the action taken by the employer in contravention of the provisions of the relevant sections.
It is significant that this jurisdiction or power has been vested in the Tribunal or Appellate Tribunal whose normal duty is to decide or adjudicate upon industrial disputes and not on any conciliation officer or Board who are normally charged with the duty of bringing about settlement of dis putes.
it is submitted by learned counsel for the Respondents and of the intervener that the scope of section 33 of the 1947 Act and of section 22 of the 1950 Act is precisely the same as that of section 33 A of the 1947 Act and section 23 of the 1950 Act.
The argument is that the two last mentioned sections were enacted only in order to afford an opportunity to the workmen to do what they had been prevented from doing at the earlier stage by reason of the employer taking the law into his own hands and taking action against them without previously obtaining the sanction of the appropriate authority to do so.
If the law permits the workmen to ventilate their grievances at a later stage under section 33 A of the 1947 Act and section 23 of the 1950 Act there can be no logical reason why the law should not permit them to do so at the earlier stage under section 33 of the 1947 Act and section 22 of the 1950 Act.
It is submitted that the purpose of labour legislation being to maintain industrial peace and restore amity and goodwill between the employer and his workmen, it should be the attempt of the Tribunal or the Appellate Tribunal at every stage to try to resolve all disputes which are connected with the matter which is brought before it.
Finally, it is urged that whenever an authority is vested with the power to do or not to do an act it must be regarded as having a discretion and 161 1256 that in exercise of such discretion the authority must be presumed to be vested with power to impose suitable conditions.
Reliance is placed on the decision in The Queen vs County Council of West Riding of Yorkshire(1).
The argument is that the authority concerned may under section 33 of the 1947 Act and section 22 of the 1950 Act grant by way of imposing conditions the same relief which it can grant to the workmen under section 33 A of the 1947 Act and section 23 of the 1950 Act.
We are unable to accept this contention as correct for reasons which we now proceed to state.
The object of section 22 of the 1950 Act like that of section 33 of the 1947 Act as amended is to protect the workmen concerned in disputes which form the subject matter of pending proceedings against victimisation by the employer on account of their having raised industrial disputes or their continuing the pending proceedings.
It is further the object of the two sections to ensure that proceedings in connection with industrial disputes already pending should be brought to a termination in a peaceful atmosphere and that no employer should during the pendency of those pro ceedings take any action of the kind mentioned in the sections which may give rise to fresh disputes likely to further exacerbate the already strained relation between the employer and the workmen.
To achieve this object a ban has been imposed upon the ordinary right which the employer has under the ordinary law governing a contract of employment.
Section 22 of the 1950 Act and section 33 of the 1947 Act which impose the ban also provide for the removal of that ban by the granting of express permission in writing in appropriate cases by the authority mentioned therein.
The purpose of these two sections being to determine whether the ban should be removed or not, all that is required of the authority exercising jurisdiction under these sections is to accord or withhold permission.
And so it has been held we think rightly by the Labour Appellate Tribunal in Carlsbad Mineral Works Co. Ltd. vs Their (1) [1S96] 2, Q.B. 386. 1257 Workmen(1) which was a case under section 33 of the 1947 Act.
Even a cursory persual of section 33 of the 1947 Act will make it clear that the purpose of that section was not to confer any general power of adjudication of disputes.
It will be noticed that under section 33 of the 1947 Act the authority invested with the power of granting or withholding permission is the conciliation officer, Board or Tribunal.
The conciliation officer or the Board normally has no power, under the 1947 Act, to decide any industrial dispute but is only charged with the duty of bringing about a settlement of dispute.
It is only the Tribunal which can by its award decide a dispute referred to it. 'Section 33 by the same language confers jurisdiction and power on all the three authorities.
Power being thus conferred by one and the same section, it cannot mean one thing in relation to the conciliation officer or the Board and a different and larger thing in relation to the Tribunal.
There is no reason to think that the legislature, by a side wind as it were, vested in the conciliation officer and the Board the jurisdiction and power of adjudicating upon disputes which they normally do not possess and which they may not be competent or qualified to exercise.
Further, if the purpose of the section was to invest all the authorities named therein with power to decide industrial disputes one would have expected some provision enabling them to make and submit an award to which the provisions of the Act would apply such as is provided in section 33 A of the 1947 Act or section 23 of the 1950 Act.
There is no machinery provided in section 33 of the 1947 Act or section 23 of the 1950 Act for enforcing the decision of the authority named in those sections.
This also indicates that those sections only impose a ban on the right of the employer and the only thing that the authority is called upon to do is to grant or withhold the permission, i.e. to lift or maintain the ban.
And so it has been held by this Court in Atherton West & Co., Ltd. vs Suti Mill Mazdoor Union(1) which was a case under clause 23 of the U. P. Government Notification quoted on p. 785.
(1) (2) ; , 786 7, 1258 Section 22 of the 1950 Act is in pari materia with section 33 of the 1947 Act and the above clause 23 of the U. P. Government Notification and most of the considerations noted above in connection with these provisions apply mutatis mutandis to section 22 of the 1950 Act.
Imposition of conditions is wholly collateral to this purpose and the authority cannot impose any condition.
And it has been so held we think correctly in G. C. Bhattacharji vs Parry & Co., Ltd., Calcutta(1).
In view of the scheme of these Act summarised above and the language of these sections the general principle laid down in the case of The Queen vs
The County Council of West Riding supra can have no application to a case governed by these sections.
In our judgment the Labour Appellate Tribunal was in error in holding that it had jurisdiction to impose conditions as a prerequisite for granting permission to the company to retrench its workmen and the first question must be answered in the negative.
In the view we have taken on the first question we do not consider it necessary on this occasion to express any opinion on the other question canvassed before us.
The result, therefore, is that this appeal is allowed and the decision of the Labour Appellate Tribunal is set aside and the matter is remanded to the Labour Appellate Tribunal to deal with the application of the company and make the appropriate order according to law.
In the circumstances of this case we make no order as to costs.
Appeal No. 4 of 1955 is dismissed also without costs.

summary:
Held, (i) that the ordinary and primary jurisdiction of the Labour Appellate Tribunal constituted under the Industrial Disputes (Appellate Tribunal) Act, 1950 is appellate; (ii) that section 22 of the Act confers on the appellate tribunal a special jurisdiction which is in the nature of original jurisdiction; (iii) that section 23 also vests in the tribunal an additional jurisdiction to decide the complaint as if it were an appeal pending before it; and (iv) that section 23 confers on the 1242 workmen an additional remedy which they did not have under the .
The two now sections 33 and 33 A inserted in the Industrial Di putes Act 1947 (XIV of 1947) by Act XLVIII of 1950 confer distinct benefits on the workmen and give some additional jurisdiction and power to the authorities mentioned therein.
Section 33 A enjoins the Tribunal to decide the complaint "as if it were a dispute referred to or pending before it" and to submit its award to the appropriate Government and provides that the provisions of the Act shall apply to the award.
The provisions of these two new sections 33 and 33 A of the 1947 Act correspond to and are in pari materia with the provisions of sections 22 and 23 of the 1950 Act and are more or less in similar terms.
A ban has been put by section 22 of 1950 Act and section 33 of the 1947 Act upon the ordinary right, which the employer has under the ordinary law governing a contract of employment with a view to protect the workmen against victimisation by the employer and to ensure the termination.of the proceedings in connection with industrial disputes in a peaceful atmosphere and the only thing that the authority is called upon to do is to grant or withhold the permission i.e. to lift or maintain the ban.
These sections do not confer any power on the authorities to adjudicate upon any other dispute.
Under section 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950 (XLVIII of 1950) the Labour Appellate Tribunal has no jurisdiction to impose conditions as a pre requisite for granting permission to the employer to retrench its workmen.
Under section 33 A of the and section 23 of the 1950 Act the jurisdiction of the authority is not only to decide whether there has been a failure on the part of the employer to obtain the permission of the authority before taking action but also to give a decision on the merits of an industrial dispute and grant appropriate relief which when published by the appropriate Government will become enforceable under the respective Acts.
Serampore Belting Mazdoor Union vs Serampore Belting Co., Ltd. ([1951] , Batuk K. Vyas vs Surat Borough Municipality ([1952] , Raj Narain vs Employer s ' Association of Northern India ([1952] 1 Lab.
L.J. 381), The Queen vs County Council of West Riding of Yorkshire ([1896] 1 Q.B. 386), Carlsbad Mineral Works Co., Ltd. vs Their Workmen ([1953] , Atherton West & Co., Ltd. vs Suti Mill Mazdoor Union ([1953] S.C.R. 780) and Bhattacharji vs Parry & Co., Ltd., Calcutta ([1954] , referred to.


judgement:
o. 15 of 1972.
Appeal by Special Leave from the, _judgment and order dated December 16, 1971 of the Assam and Nagaland High Court in Civil Rule No. 431 of 1970.
C. K. Daphtary and D. N. Mukherjee, for the appellant.
section N. Chowdhury, for respondent Nos. 1 to 4.
M. C. Setalvad and K. P. Gupta, for respondent No. 5.
The Judgment of the Court was delivered by Hegde, J.
In this appeal by special leave the appellant challenges the decision of the High Court of Assam and Nagaland in refusing to set aside the order of the Assam Government dated June 16, 1970 granting a contract to Respondent No. 5 for wholesale supply of country spirit to Tinsukia and North Lakhimpur warehouses for three years from July 1, 1970 to June 30, 1973.
The appellant is a Public Limited Company.
Under a contract entered into between it and the Government of Assam, it had the exclusive privilege of supplying country spirit to the two warehouses in the District of Lakhimpur for the period from July 1, 1967 to March 3, 1970.
Sometime before that contract came to an end, the Commissioner of Excise, Assam invited tenders in sealed covers for the privilege of supplying the, country spirit to, retail vendors in the Upper Assam area comprising of the District of Lakhimpur and Sibsagar including Mikir Sub Division of the United Mikir and North Cachar Hills for the period of three years commencing from April 1, 1970.
In the notification issued by the Commissioner, it was stated that preference will be given to the manufacturers, of the spirit.
In pursuance of the tender notice, )the appellant, the 5th respondent and several others submitted tenders for the grant of the contract in question followed up by necessary licences.
The appellant offered to supply the spirit at 74 P. per London proof litre.
Respondent No. 5 quoted the 203 price at 95 P. per London proof litre.
Another tenderer namely Rampur Distillery and Chemicals Company Ltd. offered the lowest rate of 60 P. per London proof litre.
The tender of Rampur Distillery and Chemicals Co. Ltd., was found to be defective and therefore it was rejected.
The Government was not satisfied with any of the tenders.
Thereafter by a _letter dated February 28, 1970, it called upon all the tenderers to intimate to the Government whether they were willing to reduce their rate and if so, to what extent.
They were required to send their replies by March 10, 1970.
None of the tenderers excepting the 5th respondent was willing to reduce the rate quoted by them.
The Managing Director of Respondent No. 5, by his letter dated March 4, 1970 informed the Government that his concern was willing to reduce the rate and he left it to the Government to fix any rate which it considered reasonable.
He agreed to accept the rate fixed by the Government.
The Government reduced the rate fixed by Respondent No. 5 to 74 P. per London proof litre and accepted its tender.
Aggrieved by this decision, the appellant moved the High Court of Assam and Nagaland under article 226 of the Constitution to quash the Government Order granting the contract to the 5th respondent and for issuing a direction to the concerned respondents not to give effect to the impugned order.
The High Court rejected that application.
Hence this appeal.
At the very outset, it is necessary to mention that no allegation of mala fides is made against the Government.
The only question that we have to consider in this appeal is whether the impugned order was made in violation of any statutory provisions.
It was urged on behalf of the appellant that the impugned order violates Rule 93 of the Rules framed under the Eastern Bengal and Assam Act No. 1 of 1910 (Eastern Bengal and Assam Excise Act, 1910) (to be hereinafter referred to as the Act).
Before reading Rule 93, it is necessary first to refer to the relevant provisions in the Act i.e. section 19.
That section reads : "The Provincial Government may grant to any person, on such conditions and for such period as it may think fit, the exclusive privilege of manufacturing or of supplying to licensed vendors or of manufacturing and supply to licensed vendors any country liquor or intoxi cating drug within any specified local area.
No grantee of any exclusive privilege under this section shall exercise the same until he has received a license in that behalf from the Excise Commissioner.
" The validity of this provision was not challenged before us.
This provision undoubtedly confers on the Government very wide powers in the matter of granting exclusive privilege of manufacturing or of supplying to licensed vendors or of manufacturing 204 and supplying to licensed vendors any country liquor or intoxicating drug within any specified local area.
In the absence of any rule, the Government could have exercised that power in the manner most advantageous to the State so long as it did not infringe any of the constitutional guarantees.
In understanding the nature of the power under Rule 93, we have to bear in mind the fact that rules were framed by the Government itself in the exercise of the powers conferred on it under section 36 of the Act.
Having said that much we may now proceed to consider the rules relating to contract for supplying the country spirit to warehouses.
The rules relevant for our present purpose are Rules 91 to 93.
We may now read those rules.
Tenders for a contract for the exclusive privilege of supplying country spirit from a distillery to licensed vendors within a specified area for a specified period will be called for by the Excise Commissioner 1 8 months before the date from which the contract will take effect.
Provided that the Provincial Government may, if circumstances so require, direct that tenders be called for by the Excise Commissioner within a lesser period than 18 months specified above.
Any person tendering for a license specified in rule 91 shall apply in writing to the Excise Commissioner furnishing the following particulars: (1) The name or names of the person or persons applying, if a firm, the name of every partner of the firm, and, if a company, the registered name thereof (2) The applicant (if he is other than the existing contractor) shall also state in his tender that he is willing to take over under the provisions of rule 102 of these rules the existing vats and other permanent apparatuses in the warehouses within the area to be supplied and shall furnish a list of these in his application.
The Excise Commissioner shall forward the tenders with his recommendations to the Provincial Government which reserves to itself the right to accept any tender.
If none of the tenders are accepted by the Provincial Government on the ground that none of them, on due consideration, appear to be satisfactory, they reserve also the right to grant the licence to any person who has not tendered and is considered suitable in all respects; Provided that when a license is cancelled or suspended during the currency of the license the Provincial Government further reserves the right to grant the license to any one without calling for tenders.
" 205 It was urged on behalf of the appellant that the impugned order cannot be sustained firstly because the Government has nowhere stated that the tenders made were not acceptable to it "on the ground that none of them on due consideration, appear to be satisfactory".
Secondly under Rule 93, they could not have entered into negotiations with any of the tenderers.
Neither of these contentions are sound.
From the facts stated earlier, it is clear that the Government considered the tenders to be unsatisfactory and hence unacceptable.
That is clear from its letter to the tenderers asking them to reduce the price quoted.
It is true that ultimately it granted the contract to the 5th respondent at the very rate quoted by the appellant.
In the very notification calling for tenders, it had been mentioned that preference will be given to the manufacturers.
Prima facie there is nothing wrong in giving preference to the manufacturers.
It must be borne in mind that the Government is the purchaser.
On good grounds, it can prefer one seller to another.
It is true that being a Government, it cannot show any undue favour to any party; but for good reasons it may prefer one party to another.
There was justification in preferring a manufacturer to others.
Evidently the idea was that there should be reasonable guarantee in the matter of supply of country liquor.
It was not said that this preference was given for any collateral reason.
The Govern ment does not require any special power for preferring one class of sellers to others so long as the classification made by it is based on rational grounds.
It is true that no rule confers on the Government power to prefer one set of suppliers to others.
But what is important is that no rule prohibits it.
In the absence of any such rule, section 19 of the Act confers on the Government such a power.
It was next said that Rule 93 prohibits the Government to negotiate with any of the tenderers.
We are unable to read that rule in that way.
That rule does not prohibit any negotiations with the tenderers.
But on the other hand, it authorises the Government to negotiate with persons who have not tendered.
Here again in the absence of any rule prohibiting the Government to negotiate with the tenderers, the Government can fall back on its powers under section 19.
We are unable to find out any rational basis for prohibiting the Government from negotiating with the tenderers.
All that the Government is interested is to get country spirit at the cheapest possible rates and to have regular supplies.
For achieving those purposes, it can negotiate either with the tenderers or with others.
It was faintly argued that before concluding its contract with the 5th respondent, the Government should have given opportunity to the other tenderers to reduce the rates quoted by them.
This contention is clearly a misunderstanding of the principles of natural 206 justice.
No one has a fundamental right to get a Government contract.
The appellant was not deprived of any of its rights.
It was given an adequate opportunity to submit its tender.
Its offer was considered.
The same was not rejected on irrational grounds.
In matters like the one before us, no question of hearing the interested parties arises.
All that is required is fair play.
In the result we are unable to accept any of the contentions advanced on behalf of the appellant.
Hence this appeal fails and the same is dismissed.
But in the circumstances of the case we make no order as to costs.
V.P.S. Appeal dismissed.

dataset_name: IN-Abs

summary:
The respondent invited tenders for supplying country spirit to retail vendors.
In the notification issued by the Commissioner, it was stated that preference will be given to manufacturers of spirit.
Several persons submitted tenders including the appellant and the 5th respondent who was a manufacturer of spirit.
The appellant offered to supply the spirit at 74 P and the 5th respondent at 95 P.
The Government was not satisfied with any of the tenders and the tenderers were called upon to intimate to the Government whether they were willing to reduce their rate.
None of the tenderers was willing to reduce the rate, except the 5th respondent who agreed to accept the rate fixed by tin Government, and the Government, reduced his rate to 74 P and accepted his tender.
The appellant challenged the order granting the contract to the 5th respondent, but the High Court dismissed the petition.
In appeal to this Court, it was contended that : (1) the impugned order could not be sustained because the Government nowhere stated that the tenders were not acceptable, on the ground that none of them, on due considerations, appeared to be satisfactory, as provided in r. 93 of the Rules framed under the Eastern Bengal and Assam Excise Act, 1910; ,and (2) under the rule, Government could not have entered into negotiations with :any of the tenderers.
Dismissing the appeal, HELD : (1) It is clear from the letter to the tenderers asking them to reduce the price quoted that the respondent Government considered the tenders to be unsatisfactory and hence unacceptable.
[205B C] (2) Rule 93 does not prohibit any negotiations with the tenderers.
On the other hand, it authorises Government to negotiate even with persons who have not tendered.
In the absence of any rule prohibiting Government from negotiating with the tenderers, Government can fall back on its powers under section 19.
In order to get country spirit at the cheapest possible rates and to have regular supplies, Government can negotiate with the tenderers or others.
[205F] (3) (a) No one has a fundamental right to get a Government contract.
In matters like this no question of hearing parties arises.
All that is required is fair play.
The appellant bad an opportunity to submit its tender which was considered and rejected on grounds which ate not irrational.
[306A] (b) Section 19 of the Act undoubtedly confers on the Government very wide powers in the matter of granting the exclusive privilege of manufacturing or of supplying to licensed vendors any country liquor or intoxicating drug within any specified local art a.
in the absence of a rule prohibiting Government from preferring one set of sellers to others, LI208 Sup.
CI/72 202 Government could rely on the section for such a power so long as the classification made by it is based on rational grounds.
Therefore, the Government could exercise that power in the manner most advantageous to it provided it did not infringe any Constitutional guarantee.
[205G] (c) It is true that the Government granted the contract to the 5th respondent at the rate quoted by the appellant and thus preferred the 5th respondent.
But the Government, as the purchaser, can prefer 'One seller to another for good reasons, though, it cannot show any undue favour to any one.
(d) In the notification calling for tenders it was mentioned that preference will be given to manufacturers; and there was justification for preferring a manufacturer to others, because, there would be a reasonable guarantee in the matter of supply of country liquor.
[205C]


judgement:
No. 7 of 1972.
Under Article 32 of the Constitution of India for a writ In the, nature of habeas corpus.
H. K. Puri, for the petitioner.
D. N. Mukherjee and G. section Chatterjee, for the respondent.
The Judgment of the Court was delivered by Khanna, J.
This is a petition through _jail for the issuance of ' a writ of habeas corpus by Nishi Kanta Mondal who has been ordered by the District Magistrate, 24 Parganas to be detained under section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970 (President 's Act No. 19 of 1970), hereinafter referred to as the Act.
The order of detention reads as under "GOVERNMENT OF WEST BENGAL OFFICE OF THE DISTRICT MAGISTRATE 24 PARGANAS ORDER No. 352/71 Dated, the 6 7 71 Whereas I am satisfied with respect to the person known as Shri Nishi Kanta Mondal, son of Shri Radhanath Mondal of Daccapara, P. section Bongaon, Dt.
24 Parganas that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, I therefore in exercise of the powers conferred by sub section (1) read with sub section (3) of section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970 (President 's Act No. 19 of 1970), make this order directing that the said Nishi Kanta Mondal be detained.
Given under my hand and seal of office.
Sd/ DISTRICT MAGISTRATE 24 PARGANAS 6 7 71" In pursuance of the above order, the petitioner was arrested on July 8, 1971 and was served with the order as well as the 226 grounds of detention on the same day.
On July 10, 1971 the District Magistrate sent report to the State Government about his having passed the order for 'the detention of the petitioner.
The grounds of detention and other necessary particulars were also sent along with the report.
The State Government, after considering the report and other particulars, approved the detention order on July 17, 1971.
Representation made by the petitioner against his detention was received by the State Government on July 30, 1971.
The representation was considered by the State Government and rejected on August 5, 1971.
The case of the petitioner was placed before the Advisory Board on August 6, 1971.
The petitioner 's representation was also sent to the Advisory Board.
The Advisory Board, after considering the material placed before it as well as the representation sent by the petitioner and after giving him a hearing in person, submitted its report to the State Government on September 14, 1971.
Opinion was expressed by the Advisory Board that there was sufficient cause for the detention of the petitioner.
The State Government passed an order on October 5, 1971 confirming the order for the ,detention of the petitioner.
The confirmation order was there,after communicated to the petitioner.
The petition has, been resisted by the State of West Bengal and the affidavit of Shri Chandi Charan Bose, Deputy Secretary, Home (Special) Department, Government of West Bengal has been filed in opposition to the petition.
Mr. Puri has addressed arguments amicus curiae on behalf of the petitioner, while the respondent State has been represented by Mr. D. N. Mukherjee.
The first contention which has been advanced by Mr. Puri is that the Act was enacted by the President in exercise of the powers conferred by, section 3 of the West Bengal State Legislature (Delegation of Powers) Act, 1970.
According to section 3 of the last mentioned Act, the power of the Legislature of the State of West Bengal to make laws, which 'had been declared by the Proclamation to be exercisable by or under the authority of Parliament, was conferred on the President.
In the exercise of the said power, the President could, from time to time whether Parliament was or was not in session, enact.
as a President 's Act, a Bill containing such provisions as he considered necessary.
Some other formalities, detailed in section 3, were also required to be complied with by the President, but it is not necessary for the purpose of this case to 'refer to, the.
Section 2 of the aforesaid Act defined "Proclamation" to mean the Proclamation issued on the 19th day of March, 1970, under article 356 of the Constitution by the President, and published with the notification of the Government of India it) the Ministry of Home Affairs No. G.S.R. 490 of the said date, It is urged 227 by Mr. Puri that the above mentioned Proclamation was revoked by the President by another Proclamation in the beginning of this month.
On account of the revocation of the Proclamation, the President 's Act No. 19 of 1970, according to the learned counsel, ceased to have effect.
As such, the petitioner could not be kept in detention in pursuance of the order made under that Act.
There is, in our opinion, no force in the above contention because it is based upon the assumption that the law made by the President ceases to operate immediately upon the revocation of the Proclamation.
This assumption is not correct and runs contrary to clause (2) of article 357 of the Constitution.
According to that clause, "any law made in exercise of the power of the Legislature of the State by Parliament or the President or other authority referred to in sub clause (a) of clause (1) which Parliament or the President or such other authority would not, but for the issue of a Proclamation under article 356, have been com petent to make shall, to the extent of the incompetency, cease to have effect on the expiration of a period of one year after the Proclamation has ceased to operate except as respects thing done or omitted to be done before the expiration of the said period, unless the provisions which shall so cease to have effect are sooner repealed or reenacted with or without modification by Act of the appropriate Legislature".
The above provision makes it plain that the period for which a law made under article 3 5 6 (I remains in force is not co terminous with the duration of the Proclamation.
It has not been disputed that the President was competent under clause (1) of article 356 of the Constitution to enact Act No. 19 of 1970.
The said Act, in view of the provisions of clause (2) of article 357, shall continue to remain in force in spite of the revocation of the Proclamation dated Mach 19, 1970 and would cease to have effect only on the expiry of on, , year after the Proclamation has ceased to operate except as respects things done or omitted to be done before the expiration of the said period, unless the provisions of the Act are sooner repealed or reenacted with or without modification by Act of the appropriate Legislature.
As the aforesaid period of one year has not expired and as the provisions of the Act have not been repealed or re enacted with or without modification by Act of the appropriate Legislature, the impugned Act should be held to be still in force.
In view of our finding that the Act (Act No. 19 of 1970) is still in force, it is not necessary to consider the question as to what would be the legal position in respect of subsisting detentions after the Act ceases to have effect in accordance with article 357(2) of the Constitution.
228 Argument has then been advanced by Mr. Puri that the im pugned detention order was not in conformity with section 10 of the Act as it did not specify the date of detention.
Section 10 reads as under : "10.
In every case where a detention order has been made under this Act, the State Government shall, within thirty days from the date of detention under the order, place before the Advisory Board, constituted by it under section 9, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in case where the order has been made by an officer specified in sub section (3) of section 3, also the report made by such officer, under sub section (4) of section 3.
" According to the learned counsel, the words "within thirty days from the date of detention under the order" in the section indicate that it is imperative on the part of the detaining authority to specify the date of detention in the order.
We find ourselves unable to accede 'to this submission.
All that section 10 contemplates is that the State Government should within 30 days from the commencement of the detention place before the Advisory Board the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in case where an order has been made by an officer specified in sub section (3) of section 3, also the report made by such officer under sub section (4) of section 3.
There is nothing, however, in the section which makes it obligatory on the part of the detaining authority to specify the date of the commencement of detention.
Detention starts from the time a detenu is taken into custody in pursuance of the detention order.
In most of the cases it may be difficult to state in the detention order as to when the detention WOuld commence because the detaining authority cannot be certain at the time of the making of the detention order about the date on which the person ordered to be detained would be taken into custody.
The possibility of the person ordered to be detained avoiding or delaying his apprehension by absconding or concealing himself cannot be ruled out.
In case the contention advanced on behalf of the petitioner were to be accept , the detention order would cease to be enforceable in case the person.
ordered to be detained cannot somehow be apprehended on the date mentioned in the order.
We find it difficult to draw such an inference from the language of section 10 of the Act.
The words "from the date of detention under the order", in our opinion, have reference to the date of the commencement of the detention in pursuance of the detention order.
229 Lastly, it has been argued by Mr. Puri that the grounds of detention are not germane to the objects for which a person can be ordered to be detained under the Act.
In this connection, we find that, according to the grounds of detention which were furnished to the petitioner, he was being detained as he was acting in a manner prejudicial to the maintenance of public order as evidenced by particulars given below : "On 12 2 71 at about 02.00 hrs.
, you and some of your associates being armed with bombs and other lethal weapons attacked Shri K. K. Naskar, I.A.S., S.D.O., Bongaon and his guard by hurling bombs and thereby causing injuries to the guard constable when they came out on hearing sounds of explosion of bombs near the quarters of Shri section C. Sarkar, Magistrate 1st Class, Bongaon, at Amlapara near Bongaon Court.
You, thereby, created a panic in the locality and disturbed the public order.
(2) On 23 2 71 between 10.45 hrs.
and 02.15 hrs Bongaon Police on receipt of a secret information searched a house at Subhaspalli, Bongaon and recovered 3 high explosive bombs and some explosive materials from you and your associates possession." According to section 3 of the Act, the State Government may.
if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order it is necessary so to do, make an order directing that such person be detained.
District Magistrates and some other officers under subsection (3) of section 3 of the Act have been empowered, if satisfied as provided in sub section (1), to exercise the powers conferred by the said sub section.
According to clause (d) of sub section (2) of section 3 of the Act, for the purposes of sub section (1) the expression "acting in any manner prejudicial to the security of the State or the maintenance of public order" inter alia means : "committing, or instigating any person to commit, any offence punishable with death or imprisonment for life or imprisonment for a term extending to seven years or more or any offence under the or the , where the com mission of such offence disturbs, or is likely to disturb, public order.
" It is manifest from the above definition that the expression "acting in any manner prejudicial to the maintenance of public order" would include the commission of an offence under the when the commission of such offence disturbs or is likely to disturb public order.
Particulars 230 supplied to the petitioner regarding the incident of February 12, 1971 show that the petitioner and his associates hurled bombs near the quarter of the S.D.O., Bongaon and caused injuries to his guard, as a result of which panic was created in the locality and public order was disturbed.
The particulars regarding the incident of February 12, 1971 clearly bring the case within ambit of clause (d) of sub section (2) of section 3 of the Act.
As regards the second incident of February 23, 1971 we find that the particulars show that three high explosive bombs and explosive materials were recovered from the possession of the petitioner and his associates on search of a house.
The particulars thus show that the petitioner was guilty of an offence under the .
It is also obvious that the use of high explosive bombs was likely to disturb public order.
The fact that the high explosive bombs were, recovered from the petitioner and his associates and taken into possession before they could be used would not take the case out of the purview of clause (d) The earlier incident of February 12, 1971 gives a clear indication of the propensity of the petitioner to use and explode such bombs.
The recovery of the high explosive bombs from the possession of the petitioner prevented him from using and exploding the bombs and disturbing public order.
As the object of detention is to prevent the detenu from acting in any manner prejudicial to the security of the State or the maintenance of public order, the grounds of detention supplied to the petitioner, in our opinion, should be held to be germane to the purpose for which detention order can legally be made under the Act.
In order to detain 1 person with a view to pit vent him from acting in any manner prejudicial to the security of the State or the maintenance of public order, as contemplated by section 3 (2) (d) of the Act, it is sufficient that the detaining authority considers it necessary to detain him in order to preve nt him from doing any of the acts mentioned in clause (d).
If the past conduct and antecedents of the person concerned reveal a tendency to do the acts referred to in clause (d), the order of detention would be upheld, even though because of some supervening cause like prompt action by the police, the public order is not actually disturbed.
We, therefore, find no infirmity in the impugned detention order.
It also cannot be said that the detention of the petitioner is not in accordance with law.
The petition consequently fails and is dismissed.
K.B.N. Petition dismissed.

summary:
The petitioner was detained under section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970 (President 's Act 19 of 1970) as he was acting in a manner prejudicial to the maintenance of public order.
The particulars supplied to the, petitioner showed that he and his associates hurled bombs as a result of which panic was created in the locality and that high explosive bombs were recovered from the possession of the petitioner and his associates.
In the petition for the issue of a writ of habeas corpus it was contended on behalf of the petitioner that (1) on the revo cation of the Proclamation under article 356 of the Constitution, President 's Act No. 19 of 1970 ceased to have effect and, as such, the petitioner could not be kept in detention in pursuance of the order made under the Act , (ii) the impugned detention order was not in conformity with section 10 of the Act as it did not specify the date of detention and (iii) the ground , of detention were not germane to the objects for which a person can be ordered to be detained under the Act.
Dismissing the petition, HELD : (i) The period for which a law made under article 356 (1) remains in force is not co terminous with the duration of the proclamation.
In view of the provisions of clause (2) article 357, President 's Act 19 of 1970 shall remain in force in spite of the revocation of the proclamation and would cease to have effect only on the expiry of one year after the proclamation has ceased to operate unless the provisions of the Act are sooner repealed or reenacted by Act of the appropriate State Legislature.
[227E] (ii) There is nothing in section 10 which makes it obligatory on the part of the detaining authority to specify the date of the commencement of the detention : The words "from the date of detention tinder the order" have reference to the date of the commencement of the detention in pursuance of the detention order.
[228E F] (iii) According to cl.
(d) of sub section (2) of section 3 the expression "acting in any manner prejudicial to the maintenance of public order" would include commission of an offence under the , or the .
The particulars supplied to the petitioner clearly bring the case within the ambit of clause (d) of subsection (2) of section 3 of the Act.
[229H] In order to detain a person with a view to preventing him from acting in any manner prejudicial to the security of the state or the maintenance of public order, as contemplated by section 3 (2) (d) of the Act, it is sufficient.
225 that the detaining authority considers it necessary to detain him in order to prevent him from doing any of the acts mentioned in clause (d).
If the past conduct and antecedents of the person concerned reveal a tendency to do the acts referred to in clause (d), the order of detention would be upheld, even though because of some supervening cause like prompt action by the police, the public order is not actually disturbed.
[230E G]


judgement:
Appeal No. 684 of 1968.
Y. section Dharmadhikari, Advocate General for the State of Madhya Pradesh and 1.
N. Shroff, for the appellants.
M. C. Setalvad, Rameshwar Nath and section K. Dholakia, for respondent No. 1.
The Judgment of the Court was delivered by Mitter, J.
This is an appeal from a judgment of the Madhya Pradesh High Court quashing the proceedings initiated on the complaint filed by the Divisional Forest Officer, Saugor in the Court of the Magistrate of the First Class Saugor for imposition of a penalty on the respondents.
The matter arises thus.
Chhotahhai Jethabhai Patel, a partnership firm of which the second respondent, Jhaverbhai Bhulabhai Patel is a partner, carried on business on a fairly large scale as manufacturers of bidis at various places in the State of Madhya Pradesh including Saugor.
Being unable to secure sufficient quantities of tendu leaves grown in the forest units in the State, the firm took leases for the collection of such leaves in the States of Bihar Maharashtra.
They actually imported tendu leaves under two railway consignments from Bihar to Saugor.
They informed the Divisional Forest Officer about the same and asked for permission for transport of the leaves and to utilise the said leaves for manufacture of bidis in their factories.
By letter dated July 27, 1965 the said Forest Officer intimated the firm that the imported leaves were not to be moved for bidi manufacture until permission was accorded for so doing.
The respondents ' grievance was that notwithstanding the above communication and in spite of the fact that they had not moved the imported leaves from their godowns, the Sub Divisional Forest Officer Saugor seized two quantities of such leaves of 9007 bags imported from Garwah Road, Bihar and 256 bags of tendu leaves imported from Bindoumaganj, Bihar and followed the same up by filing a complaint alleging contravention of section 5 of the Madhya Pradesh Tendu Patta Wyapar Viniyaman) 84 0 Adhiniyam, 1964, hereinafter referred to as the Act.
The respondents filed a petition under article 226 of the Constitution before the High Court for the issue of a writ of certiorari quashing the complaint.
The contention of the respondents (importers of the leaves) before the High Court was that the Act did not prohibit the import of tendu leaves from places outside the State nor was there any restriction on a manufacturer importing such leaves with the express object of consumption of the same, in his factory for the manufacture of bidis and in any event the Act or the Rules made thereunder did not purport to regulate the transport of tendu leaves imported from places outside the State.
On behalf of the State it was contended that transport of tendu leaves whether grown in the State or outside the State was completely prohibited by section 5(2) of the Act and regulation and control of transport of such imported leaves was necessary for the successful working of the State monopoly in the trade of tendu leaves envisaged by the Act.
Further the Act did not prohibit the import of tendu leaves and was not therefore violative of articles 31, 301 and 304 of the Constitution and the control of movement of tendu leaves after their import from another State was in no way repug nant to articles 301 and 304.
The High Court rejected the contentions of the State.
Hence the appeal.
In order to find out whether the action of the Forest Officer was justified, we have to look into the relevant provisions of the Act and the rules framed thereunder.
The Act as its preamble shows is one to make provision for regulating in the public interest the trade of tendu leaves by creation of State monopoly in such trade.
By section 1(2) it was to extend to the whole of the State and under sub section
(3) of section 1 it was to come into force in such area or areas and on such date or dates as the State Government may, by notification, specify.
The broad scheme of the Act appears to be as follows.
Under section 3 the State Government was empowered to divide every specified area defined in cl.
(h) of section 2 into such number of units as it may deem fit.
section 4 empowered the State Government to appoint agents in respect of different units for the purpose of purchase of and trade in tendu leaves on its behalf.
Under section 5(1); "On the issue of a notification under sub section (3) of section 1 in any area no perso n other than (a) the State Government; (b) an officer of State Government authorised in writing in that behalf; or 841 (c) an agent in respect of the unit in which the leaves have grown; shall purchase or transport tendu leaves.
" The two Explanations to this subsection show that purchase of tendu leaves from the State Government or its officers or agents was not to be deemed to be a purchase in contravention of the Act and a person having no interest in a holding but acquiring the right to collect tendu leaves grown on such holding was to be deemed to have purchased such leaves in contravention of the Act.
Sub section
(2) of the section allowed a grower of tendu leaves to transport them from any place within the unit wherein such leaves had grown to any other place in that unit and tendu leaves purchased from the State Government or any officer or agent of the Government by any person for manufacture of bidis within the State or by any person for sale outside the State could be transported by such person in accordance with the terms and conditions of a permit to be issued in that behalf.
section 7 empowered the State Government to fix prices at which tendu leaves were to be, purchased by it or its agent and under section 9 the State Government or their authorised officer or agent was to be, bound to purchase at the price fixed under section 7 leaves offered for sale at the depot, subject to the right of rejection of such leaves as were not fit for the manufacture of bidis.
Under section 1 1 all manufacturers of bidis and all exporters of tendu leaves had to get themselves registered in such manner as might be prescribed.
section 12 enabled the State Government to sell or dispose of tendu leaves purchased by it or its agent as therein prescribed.
Under section 1 5 any person contravening any of the provisions of the Act or the rules thereunder was liable to punishment, both with imprisonment and fine and tendu leaves in respect of which such contravention took place were liable to forfeiture by Government.
section 19 gave the Government power to make rules to carry out the provisions of the Act.
Rule 4 framed under the Act lays down the kinds of transport permits which may be issued.
They are to be, of four types (i) for transport from collection depot to storage godown; (ii) for transport from one storage godown to another or to distribution centre; (iii) for transport from a distribution centre to Sattedars or Mazdoors ' and (iv) for transport outside the State.
The application for a transport permit is to be under rule 9 in form 'M ' and the permit to be issued is to be in form 'M. Form 'M ' gives the quantity of tendu leaves purchased, the place or places where they were stored, the destination to which they were to be transported and the place or places where transported leaves were to be stored.
Similar particulars are to be contained in a permit in form 'N '.
842 It was contended on behalf of the State that the High Court had gone wrong in taking the view that the object of the Act was confined to trading in tendu leaves grown in the State as disclosed by the above provisions.
It was urged that the embargo on purchase and transport of tendu leaves by section 5 was necessary for creation and preservation of the State monopoly in tendu leaves.
It was submitted that there was nothing in the Act, which on the face of it showed that tendu leaves mentioned in the different provisions were to be confined to leaves grown in the State.
It was further submitted that unless the State had the power to check the purchase of tendu leaves from outside the State and in any event to restrict the transport thereof within the State, the monopoly would not be effective.
It was urged further that transport of goods within the State was so essentially integrated with the trade in the goods that the restriction on transport should be upheld in the interest of the State monopoly.
We find ourselves unable to accept the contentions put forward by counsel on behalf of the State.
All the relevant provisions of the Act and the rules referred to above show that the legislature intended that everybody growing leaves within the State should offer the same to it or its agents in different units for sale and the State was bound to purchase every single lot of tendu leaves unless the same could be said to be unfit for the manufacture of bidis.
Prima facie trade in tendu leaves as was held by this Court in Vrajlal Manilal vs M. P. State(1) would consist of dealing in those leaves i.e. their purchase and sale but "transport of the leaves once purchased or sold would not prima facie be an organic or integral part of dealing in those leaves.
" It was further held in that case: :. a permit system which regulates the movement of leaves purchased by a manufacturer of bidis from the unit where they are purchased to his warehouse, then to the branches and to the sattedars cannot up to that stage be regarded as unreasonable in the light of the object of the Act, the economic conditions prevailing in the State, and the mischief which it seeks to cure.
At the same time to expect the manufacturer to get permits issued to his sattedars for distribution by them to the innumerable mazdoors of comparatively small quantities of these leaves would not only be unreasonable but frustrating.
" In that case there was no question of import of any tendu leaves from outside the State or the issue of any permits in that regard.
What was objected to was the insistence upon transport permits for the leaves to be distributed by the manufacturers to his innumerable sattedars and mazdoors under section 5 of the Act.
It was held that though the section "is couched in apparently wide language, (1) ; at 408.
843 the very object of the Act, as disclosed by its long title, contains inherent limitations against an absolute or as strictly regulated a ban as it would at first reading of the section appear.
" Though the Court there upheld the provisions relating to the creation of the monopoly in the public interest in the matter of sale and purchase of tendu leaves, it was not disposed to uphold the restrictions on movement to the extent it was sought to be enforced by the State in that case.
In coming to the above conclusion the Court relied on the dictum in Akadasi Padhan vs State of Orissa(1) "A law relating to a State monopoly cannot, in the context, include all the provisions contained in the said law whether they have direct relation with the creation of the monopoly or no the said expression should be construed to mean the law relating to the monopoly in its absolutely essential features.
If a law is passed creating a State monopoly, the Court should enquire what are the provisions of the said law which are basically and essentially necessary for creating the State monopoly.
It is only those essential and basic provisions which are protected by the latter part of article 19(6).
If there are other provisions made by the Act which are subsidiary, incidental or helpful to the operation of the monopoly, they do not fall under the said part and their validity must be judged under the first part of article 19(6).
In other words, the effect of the amendment made in article 19(6) is to protect the law relating to the creation of monopoly and that means that it is only the provisions of the law which are integrally and essentially connected with the creation of the monopoly that are protected.
The rest of the provisions which may be incidental do not fall under the, latter part of article 19(6) and would inevitably have to satisfy the test of the first part of article 19(6).
" It is settled law that where two constructions of a legislative provision are possible one consistent with the constitutionality of the measure impugned and the other offending the same, the Court will lean towards the first if it be compatible with the object and purpose of the impugned Act, the mischief which it sought to prevent ascertaining from relevant factors its true scope and meaning.
It was in the light of this principle that the High Court observed : "If section 5 of the Act or any of its provisions were to be construed as prohibiting the import of tendu leaves into (1) [1963] Supp.
2 S.C.R. 691.
844 the State or restricted within the State of imported leaves, then the provision would clearly be invalid as violative of articles 301 and 304 of the Constitution.
" Without expressing our views on the subject we hold that the entire provisions of the Act and the rules are consistent with and aim at the State monopoly in the trade of tendu leaves in case of leaves grown or _produced in the State and the legislature never intended that the monopoly should be operative even to the extent of banning import of tendu leaves from outside or stalling the tendu leaves once they found their way into the State from outside.
The transport of tendu leaves purchased outside but consigned to places within the, State to be used for the manufacture of bidis is not integrally connected with the State monopoly as envisaged in the Act.
It stands to reason that manufacturers of bidis in the State of Madhya Pradesh would not think of importing tendu leaves from distant places like, Bihar and Maharashtra if they could help it and it must be the exigencies of the situation which drives a manufacturer of bidis to such course of action.
In any event, the Act ought not to be construed so as to ban import of tendu leaves from outside the State or restrict their movement once they were within the State unless clear language was used in that behalf.
If and when such express embargo is imposed, a question may arise as to whether it offends the different provisions of Part XIII of the Constitution.
In the result the appeal fails and is dismissed with costs.
S.C. Appeal dismissed.

summary:
The respondent, a partnership firm of which the second respondent was a partner, carried on business as manufacturers of bidis at various places in the State of Madhya Pradesh.
Being unable to secure sufficient tendu leaves locally, the firm took leases for the collection of such leaves in Bihar & Maharashtra.
They actually imported tendu leaves under two railway consignments from Bihar.
They informed the Divisional Forest Officer about the same and asked permission for transport of the leaves and to utilise them in their factories.
By letter, the D.F.O. informed the respondents that the leaves must not be moved for bidi manufacture until permission is given.
Respondents obeyed the order; but in spite of that, the Sub divisional Forest Officer seized two quantities of such leaves and filed a complaint alleging contravention of section 5 of Madhya Pradesh Tendu Patta (Vyapar Viniyaman) Adhiniyam, 1964.
The respondent filed a petition under article 226 of the Constitution for a writ of certiorari quashing the complaint.
The contention of the respondents was that the Act did not prohibit import of tendu leaves from outside nor was there any restriction on a manufacturer to consume the same for the manufacture of bidis or the Rules made under the Act did not regulate the transport of the tendu leaves imported from outside.
The State however, contended that transport of tendu leaves whether grown locally or imported from outside was completely prohibited under section 5 of the Act, except by a license holder in terms of a permit issued.
S.5(1) provides that no person other than the State Government or an Officer of the State Government etc.
shall purchase or transport tendu leaves.
Further, the Act did not prohibit import of tendu leaves and so the Act is not violative of articles 31, 301 and 304 of the Constitution and the control of movement of tendu leaves after their import was in no way repugnant to articles 301 and 304 of the Constitution.
The State contended that unless the State had the power to check the purchase of tendu leaves from outside the State and to restrict the transport thereof within the State, the monopoly of State trading in tendu leaves would not be effective.
The High Court rejected these contentions of the State and hence the appeal.
Dismissing the appeal, HELD : (1) All the relevant provisions of the Act and the rules made thereunder show that the legislature intended that everybody growing leaves within the State should offer the same to it to its agents in different units for sale and the State was bound to purchase every single lot of usable tendu leaves.
Prima facie trade in tendu leaves could consist of dealing in those leaves, i.e., their purchase and sale but transport 'of the leaves once purchased or sold would not prima facie be an organic or integral part of dealing in those leaves.
[842 D] 839 Vrajlal Manilal vs M.P. State ; , followed.
(ii) In the present case, the transport of tendu leaves purchased outside but consigned to places within the State to be used for the manufacture of bidis is not integrally connected with the State monopoly as envisaged in the Act.
The Act ought not to be construed so as to ban import of tendu leaves from outside the State or restrict their movement once they are within the State unless clear language was used in that behalf.
[844 C] Akadasi Padhan vs State of Orissa, [1963] Supp. 2 S.C.R. 691, referred to.