judgement:
Civil Appeal No. 720 of 1978.
Appeal under section 116 A of the Representation of People Act 1951 from the Judgment and Order dated 7 2 1978 of the Punjab and Haryana High Court in E.P. No. 15/77.
Hardev Singh for the Appellant.
P. P. Rao, O. P. Sharma, R. Venkataramiah and R. C. Bhatia for the Respondents.
The Judgment of the Court was delivered by SHINGHAL J.
This appeal by election petitioner Harjit Singh Mann is directed against the judgment of the Punjab and Haryana High Court dated February 7, 1978, dismissing the petition by which he had challenged the election of Umrao Singh, respondent No. 1, hereinafter referred to as the respondent, from the Nakodar constituency of the Punjab Legislative Assembly.
The result of the election was declared on June 14, 1977, according to which the respondent was declared elected as he secured the highest votes at the poll.
503 Appellant Harjit Singh Mann could not contest the election as his nomination papers were rejected by the Returning Officer on May 19, 1977, which was the date fixed for the scrutiny of the nominations.
That was taken as one of the grounds for filing the election petition, the other ground being the commission of some corrupt practices by the respondent.
The respondent traversed the allegations.
The trial court examined some of the preliminary objections and framed eight issues.
The first two issues were decided in favour of the appellant.
As regards issue No. 3, the trial court held that a part of the allegation of corrupt practice which was sought to be incorporated in the amended petition, could not be taken into consideration as the amendment was applied for after the expiry of the period of limitation; and it was therefore ordered to be deleted.
The correctness of the above findings has not been challenged before us.
In fact we are required to consider the trial court 's findings only on issues Nos. 4, 5 and 6, which have all gone against the appellant.
Issues Nos. 7 and 8 have not been pressed for our consideration.
We shall therefore concern ourselves with three issues (Nos. 4, 5 and 6) and deal with them one by one.
Issue No. 4 was to the following effect, "Whether Jit Ram proposer of the petitioner reached the office of the Returning Officer at 2.50 p.m. and filed the nomination papers of the petitioner before 3.00 p.m. on 18 5 1977 and whether the endorsement made on the nomination papers that the nomination papers were received at 3.10 p.m. was wrongly made and thereby illegally rejected the nomination papers of the petitioner on 19 5 1977 ? If so, to what effect.
" The appellant 's allegation in this respect was that although Jit Ram (P.W. 7), who had proposed his candidature, reached the office of the Returning Officer after depositing the necessary security in the bank at 2.50 p.m. on May 18, 1977, and the Returning Officer placed the nomination papers on his table, he wrongly asked Jit Ram to take back the nomination papers saying that the time for filing them had expired.
It was further alleged that the Returning Officer got annoyed when Jit Ram protested that he had filed the nomination papers in time, and that he wrongly noted down the time of presentation of the nomination papers as 15.10 hours.
As has been stated, the trial court has disbelieved the averment of the petitioner in this respect and found the issue against him.
We have gone through the statement of Jit Ram P.W. 7 who, according to the appellant 's case, presented the nomination papers to 504 the Returning Officer.
The witness has however admitted in cross examination that when he was trying to deliver the nomination papers, the Returning Officer "said that he objected to the delivery of the nomination papers as the time was over".
The witness no doubt claimed that he reached the office of the Returning Officer, after depositing the security at about 2.45 p.m. and that when the Returning Officer told him that the time for the filing of the nomination papers had expired, some four other "persons" standing in the office of the Returning Officer said that "still two minutes remained for it becoming 3 O 'clock and some said that one minute still remained".
The trial court disbelieved that version of Jit Ram.
He really could not even read the time in the clock of the trial court, for when he deposed that it was 3.19 p.m., the time accordingly to that clock was 3.6 p.m.
Jit Ram did not therefore have the capacity of reading or stating the time correctly, and it may in fact be said that what he deposed about the presentation of the nomination papers a couple of minutes or a minute before 3 p.m. was nothing but hearsay.
The trial court has examined the other evidence of the parties, including the statement of Returning Officer Manohar Singh R.W.1, and we have no doubt that its finding that the nomination papers were filed 10 minutes after 3 p.m. is fully borne out by the evidence on the record and is correct.
It has to be appreciated that it is the requirement of the law that the Returning Officer should mention the time of the presentation of the nomination papers, and that endorsement exhibit P.W.1/19 has been proved by the Returning Officer.
It shows that the nomination papers were presented on May 18, 1977 at 15.10 hours by the proposer, and the endorsement to that effect was duly signed by the Returning Officer.
There is no reason to disbelieve that evidence.
The fact of late presentation of the nomination papers was reiterated by the Returning Officer in his order of scrutiny exhibit P.W. 1/20 on May 19, 1977.
In that order he clearly stated that as the nomination papers was delivered to him on May 18, 1977 after 3 p.m. i.e. at 15.10 hours by the proposer Shri Jit Ram, he rejected it for that reason and also for the reason that the required oath or affirmation was not made by the candidate.
It may be mentioned that the form of the nomination paper prescribed by the Conduct of Election Rules, 1961, provides for the issue of a receipt for the nomination paper and the notice of scrutiny, which has to be handed over to the person presenting the nomination paper.
The serial number of the nomination paper, the name of the candidate, the name of the constituency, the date and time of presentation of the nomination paper and the date and time fixed for its scrutiny had therefore to be mentioned in that receipt, and we find from the judgment of the trial court that the 505 non production of that receipt by the appellant has rightly been taken as a circumstance against him.
On the evidence before it the trial court was justified in finding issue No. 4 against the appellant and in holding that the nomination papers were filed after the expiry of the time prescribed for them i.e. at 3.10 p.m.
An attempt was made to argue that the delay in the presentation of the nomination papers in question could not justify its rejection as it was not a defect of a substantial character within the meaning of sub section
(4) of section 36 of the Representation of the People Act, 1951, hereinafter referred to as the Act.
In order to appreciate the argument it is necessary to make a cross reference to sub s.(1) of section 33 of the Act which provides as follows, "33(1) On or before the date appointed under clause (a) of section 30 each candidate shall, either in person or by his proposer, between the hours of eleven O 'clock in the forenoon and three o 'clock in the afternoon deliver to the returning officer at the place specified in this behalf in the notice issued under section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer".
It is therefore the requirement of that sub section that, inter alia, the nomination paper shall be delivered to the Returning Officer between the hours of eleven O 'clock in the forenoon and three O 'clock in the afternoon, so that a nomination paper delivered after three O 'clock in the afternoon cannot be said to comply with that provision of section 33.
Sub section (2) of section 36 of the Act, which provides for the examination of the nomination papers for the purpose of deciding all objections made to any nomination, requires that the Returning Officer shall reject any nomination paper on the grounds mentioned in the sub section.
We are concerned with ground No. (b) which provides as follows: "(b) that there has been a failure to comply with any of the provisions of section 33 or section 34".
So as there was failure to comply with that provision of section 33 which required the delivery of the nomination paper between the hours of eleven O 'clock in the forenoon and three O 'clock in the afternoon, the Returning Officer had really no option but to reject the nomination paper.
We have considered the argument that such a defect was not of a substantial character within the meaning of sub section
(4) of section 36 of the 506 Act, but we are unable to uphold it in the face of the clear requirement of ground (b) of sub section
(2) of section 36, referred to above.
It has to be appreciated that any other view would make the requirement for the presentation of the nomination paper before the last date for making nominations, and within the specified period of time, unworkable for it will not then be possible to draw a line upto which the delay in the delivery of the nomination papers could be condoned.
In fact if the requirement of the law in that respect is not observed, and its breach is considered to be a defect which was not of a substantial character, it may be permissible to go to the extent of arguing that the nomination paper may be filed even upto the date and time fixed for the scrutiny of the nominations.
That would not only cause administrative inconvenience but put the other candidates to a serious disadvantage for they would not be able to prepare themselves for any objection they may like to raise to the validity of the nomination at the time of the scrutiny of the nominations.
We have no hesitation therefore in taking the view that the failure to comply with the requirement that the nomination papers shall be delivered between the hours of eleven O 'clock in the forenoon and three O 'clock in the afternoon is mandatory and the Returning Officer was justified in rejecting the nomination paper in question because of its breach.
A similar provision in an election rule has been stated to be mandatory in Rogers on Elections, Volume III, twentyfirst edition, at page 74, and it has been observed that the rule must be "literally complied with".
Reference in this connection may be made to Cutting vs Windsor.
There Avory J., referred to the requirement of r. 7 in Part II of the third Schedule to the Municipal Corporations Act, 1882.
according to which the nomination paper had to be delivered before five O 'clock in the afternoon of the last day for the delivery of nomination papers, and rejected the argument that what had occurred there was a pure technicality.
He held as follows, "So far as rule 7 provided for the time within which nomination papers must be delivered at the town clerk 's office it was mandatory.
It was not within the discretion of the town clerk to receive nomination papers after the hour specified in the rule, nor was it competent to that Court to say that the delivery of a nomination paper after the prescribed time constituted a good nomination.
Mr. Windsor had never been duly nominated and his election must be declared void.
Mr. Cutting was the only other candidate and he must be declared to have been duly elected".
507 Horridge J., agreed with him saying that if Windsor had never been nominated it was impossible for the Court to say that his election was in accordance with the principles laid down in the body of the Act.
The same view has been expressed in Parker 's Conduct of Parliamentary Elections, 1970, on page 137, "The returning officer has no power to extend the time for delivery (see Howes vs Turner, , Cutting vs Windsor, 40 Times L.R. 395)".
The matter has been dealt with in Parliamentary Elections by A. Norman Schofield, second edition, on pages 149 150 under the rubic "Delivery at wrong time" and it has been held that the requirement in that respect is mandatory.
So as the provision of section 36 regarding the delivery of the nomination papers between the hours of eleven O 'clock in the forenoon and three O 'clock in the afternoon was not complied with, the Returning Officer had no option but to reject the nomination paper in question as required by section 36(2) (b) of the Act and the finding of the trial court in that respect is quite correct.
Issue No. 5 raises the question whether the appellant reached the office of the Returning Officer at 3.45 p.m. on May 18, 1977, and took oath in the presence of the Returning Officer who, however, failed to make the necessary endorsement on the nomination paper.
It is not in controversy that it was obligatory under cl.
(a) of article 173 of the Constitution for the appellant to make and subscribe, before a person authorised in that behalf by the Election Commission, an oath or affirmation according to the form set out for the purpose in the Third Schedule, and that he could not be qualified to be chosen to fill a seat in the Legislature of a State without doing so.
The importance of that requirement of the Constitution has been reiterated in sub section
(2) of section 36 of the Act for ground No. (a) thereof provides that the Returning Officer shall reject a nomination paper on the ground that on the date fixed for the scrutiny of nomination the candidate was, inter alia, not qualified to be chosen to fill the seat in the Legislative Assembly under article 173 of the Constitution.
The requirement for the making and subscribing the oath or affirmation was therefore clearly mandatory.
The appellant tried to establish the plea that he reached the office of the Returning Officer at 3.45 p.m. on May 18, 1977, and took 508 oath in the presence of the Returning Officer who, however, failed to make the necessary endorsement to that effect.
That averment was denied on behalf of the respondent, and we find that the trial court has adequately dealt with the evidence on the record in that respect.
It will be sufficient for us to mention that the Election Commission took care to point out the importance of the requirement for the making and subscribing the oath or affirmation in their "Handbook for Returning Officers", and directed that the "authorised person" before whom that was done would "forthwith give a certificate to the candidate" that he had made and subscribed the oath before him on the date and hour mentioned in the certificate.
It has been emphasised that the certificate would be given to the candidate without his applying for it, for that would avoid all controversy later on as to whether he had taken the oath or not.
Annexure VI provides for the issue of that certificate in the portion which appears just below the perforated portion of the form of oath or affirmation prescribed by the Constitution.
It may be pointed out in this connection that the appellant admitted in his statement that he was given a slip by his proposer Jit Ram P.W. 7, in which it was mentioned that he should take oath or make the affirmation before the Returning Officer on May 19, 1977.
It is therefore quite clear that the oath or affirmation had not been made or subscribed at the time of the presentation of the nomination papers, and as the appellant was not able to produce the certificate of his making or subscribing the oath or affirmation before the Returning Officer thereafter, in the manner alleged by him, there is nothing wrong with the view taken by the trial court that he did not really do so, and we do not think it necessary to reappraise the evidence in that connection.
Issue No. 6 dealt with the question whether the respondent was guilty of the corrupt practice of bribery alleged in paragraph 11 of the petition.
The allegations were amended by the appellant, but a part of them were ordered to be deleted and there is no grievance in that respect.
The remaining allegation was to the following effect, "11.
That after the last Parliament Elections and installation of Janta Party Government at the Centre, it became evident that the State Government would be toppled and the Ministers of the Previous Congress Government and specially respondent No. 1 with a view to bribe the voters or the Constituency, he started giving large sum of dis 509 cretionary grants in the Constituency.
To name a few Bara Pind, Littran, Dalla etc.
He used his influence in the Department that the funds were released during the Elections.
This was done with the object of influencing the electors of those villages to vote in favour of respondent No. 1.
Respondent No. 1 went to village Bara Pind on 25 5 1977 at 5.00 p.m. and in the presence of Master Jasmel Singh handed over a cheque No. K 314781 dated 29 4 1977 for a sum of Rs. 20,000/ out of the accounts of Punjab State Sports Council to the lady Sarpanch Smt.
Banti and Biant Kaur and gave a lecture requesting the co villagers to vote for him, since he had given the money.
On 27 5 1977 respondent No. 1 went to village Littran at 4 p.m. and gave a cheque of Rs. 5,000/ in the presence of about 50 villagers including Chanan Singh Mistri to section Balwant Singh Bali a cheque No. K 314782 and called upon those present to vote for him.
The cheque was issued out the funds of Punjab State Sports Council".
It is hardly necessary to say that the allegations were traversed by the respondent and the trial court found that they had not been established.
The corrupt practice which was thus alleged against the respondent was one under section 123(1) (a) (b), according to which any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing an elector to vote or refrain from voting at an election is a corrupt practice.
In view of the allegations mentioned above, it appears that it was not the allegation of the appellant that the gift, offer or promise was made as a reward to an elector for having voted or refrained from voting within the meaning of sub cl.
(ii), and it could only be said to fall under sub clause (b) of section 1(A) as the allegation was that the bribery was meant to induce the electors to vote for the respondent.
It is nonetheless an essential ingredient of the definition of the corrupt practice of "bribery" that the gift, offer or promise should be by the candidate or his agent or by any other person with the consent of the candidate or his election agent.
Part VI of the Act deals with disputes regarding elections and Part VII deals with Corrupt Practices and Electoral Offences.
Section 79 of the Act provides that both in Parts VI and VII, unless the context otherwise requires, the definitions mentioned in it would govern the interpretation of those parts.
Clause 510 (b) of the section defines the expression ' candidate ' as follows, " 'Candidate ' means a person who has been or claims to have been duly nominated as a candidate at any election".
It has therefore to be seen whether the respondent had been duly nominated as a candidate at the election in question, or whether he claimed to be duly nominated at that election at the time when the corrupt practice was alleged to have been committed by him.
It is nobody 's case that the respondent laid any such claim at any point of time until his nomination paper was scrutinised; and he was held to be a validly nominated candidate only after the nomination was scrutinised by the Returning Officer on May 19, 1977.
He could not therefore be said to be a 'candidate ' within the meaning of section 123 read with section 79 of the Act until that date.
The allegation in paragraph 11 of the election petition was to the effect that the cheque of Rs. 20,000/ was delivered at village Bara Pind on May 25, 1977 and the votes were solicited on that date.
As regards village Littran, the allegation was that a cheque of Rs. 5,000/ was delivered on May 27, 1977 and votes were solicited.
It is not disputed however that the precise evidence against the respondent was that he made an order for the delivery of Rs. 20,000/ on April 17, 1977 in respect of village Bara Pind and on April 29, 1977 in respect of village Littran, in his capacity as the Minister for Revenue.
Both these orders were therefore made before the respondent was a candidate at the election in question and it is not disputed before us that he ceased to be a minister on April 30, 1977, when Punjab was brought under the President 's rule.
So even if it were assumed that the respondent sanctioned the two payments for the purpose of gaining popularity in Bara Pind and Littran villages, with an eye to his ultimate candidature from Nakodar Assembly constituency, it cannot be said that his action amounted to a gift, offer or promise by him as a "candidate" at the election in question so as to amount to the corrupt practice of bribery under cl.
(1) of section 123 of the Act.
As regards the alleged distribution of cheques on May 25 and May 27, 1977, it will be enough to say that even if it were presumed that the respondent was allowed to do so after he ceased to be a Minister, the mere delivery of cheques could not possibly amount to bribery when, as has been stated, there was no element of bargain in regard to it.
It may be mentioned that the trial court rightly took the view that it was necessary for the purpose of proving the corrupt practice 511 of bribery to establish that there was an element of "bargaining" in what the respondent was alleged to have done for Bara Pind and Littran.
Reference in this connection may be made to the decision of this Court in Ghasi Ram vs Dal Singh and others where it was held with reference to the decision in Amirchand vs Surendra Lal Jha and others that if a Minister redress the grievances of a class of the public or people of a locality or renders them any help, on the eve of an election, it is not a corrup practice unless he obtains promises from the voters in return, as a condition for his help.
It was also held that the "evidence must show clearly that the promise or gift directly or indirectly was made to an elector to vote or refrain from voting at an election", and that "if there was good evidence that the Minister bargained directly or indirectly for votes, the result might have been different".
The decision in Ghasi Ram 's case (supra) was followed in Om Prabha Jain vs Abnash Chand and another, Bhanu Kumar Shastri vs Mohan Lal Sukhandia and others and Chaitanya Kumar Adatiya vs Smt.
Sushila Dixit and others.
It was therefore necessary for the appellant to plead and prove that there was bargaining between the respondent and the voters and he did what he is alleged to have done in Bara Pind and Littran for that reason but, as the trial court has pointed out, there was no such allegation in the election petition.
So when the element of bargain was completely absent from the allegation against the respondent, the trial court was justified in holding that the alleged corrupt practice had not been established.
The trial court has considered the evidence on the record in this respect and its finding on issue No. 6 is quite correct and nothing worthwhile has been urged before us to require its reconsideration.
As there is no merit in this appeal, it is dismissed with costs.
N.K.A. Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellant was a voter in the Constituency from which the Respondent was elected as a member of the State Legislative Assembly.
His nomination paper was rejected by the Returning Officer on the ground that it was filed beyond the time prescribed for filing nomination paper and that he had not made and subscribed an oath on it, as required by law.
In his petition before the High Court the appellant contended that (1) the filing of nomination paper late by 10 minutes could not be a ground for rejecting the nomination paper and it was not a defect of substantial character within the meaning of section 36(4) of the Act, (2) the allegation that he had filed to make and subscribe the oath before the Returning officer as required by article 173 of the Constitution was not true and (3) the respondent was guilty of corrupt practice of bribery.
The High Court rejecting all the contentions, dismissed the petition.
Dismissing the appeal, this court ^ HELD : 1(a) It is the requirement of law that the Returning officer should mention the time of presentation of the nomination papers.
The endorsement by the Returning officer shows that the nomination paper was presented on May 18, 1977 at 15.10 by the proposer, and that the endorsement to that effect was duly signed by the Returning officer.
[504 E F] (b) It is not correct to say that the delay in presentation of the nomination paper was not a ground for its rejection as it was not a defect of substantial character within the meaning of Section 36(4) of the Representation of the People Act.
In the face of the clear requirement of section 36(2)(b) of the Act, any other view would make the requirement for the presentation of the nomination paper before the last date and within the specified period of time, unworkable for it will not then be possible to draw a line upto which the delay in the delivery of the nomination papers could be condoned.
If the requirement of the law in that respect is not observed, and its breach is considered to be a defect which was not of a substantial character it may be permissible to go to the extent of arguing that the nomination paper may be filed even upto the date and time fixed for the scrutiny of the nominations.
That would not only cause administrative inconvenience but put the other candidate to a serious disadvantage for they would not be able to prepare themselves for any objection they may like to raise to the validity of the nomination, at the time of scrutiny of the nominations.
[505 H, 506 A C] 502 (c) The requirement that the nomination papers shall be delivered between the hours of eleven O 'clock in the forenoon and three O 'clock in the afternoon is mandatory and the Returning officer has no option but to reject the nomination paper as required by Section 36(2) of thee Act.
[505 G H] (2) The trial court held that the oath ar affirmation which was required to be made or subscribed by the candidate had not been made and subscribed at the time of the presentation of the nomination papers.
As the appellant was not able to produce the certificate of his making and subscribing the oath or affirmation before the Returning officer thereafter, in the manner alleged by him, there is nothing wrong with the view taken by the trial court that he did not really do so [508 A B, D E] (3) It is an essential ingredient of the definition of corrupt practice of "bribery" that the gift, offer or promise should be by the candidate or his agent or by any other person with the consent of the candidate or his Election Agent.
The trial court rightly took the view that it was necessary for the purpose of proving the corrupt practice of bribery to establish that there was an element of "bargaining" in what the respondent was alleged to have done for two villages.
When the element of bargain was completely absent from the allegation against the respondent, the trial court was justified in holding that the alleged corrup practice had not been established.
[809G, 510H, 511A, D E] Ghasi Ram vs Dal Singh and others ; , Amir Chand vs Surendra Lal Jha and others , Om Prabha Jain vs Abnash Chand and another ; ; Bhanu Kumar Shastri vs Mohan Lal Sukhadia and others ; ; Chaitanya Kumar Adatiya vs Smt.
Sushila Dixit and others , referred to.


judgement:
N: Criminal Appeal No. 349 of 1974.
From the Judgment and order dated 24 4 1974 of the Patna High Court in original Crl.
No. 7/73.
Lal Narayan Sinha, Attorney General, U. P. Singh, B. P. Singh and section N. Jha for the Appellant.
Sukumar Ghosh for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
The Advocate General of Bihar is the appellant in this appeal under Section 19 of the Contempts of Courts Act, 1971.
Respondent No. 1, M/s. Madhya Pradesh Khair Industries, represented by respondent No. 2, Om Prakash Agrawal, were the highest bides at an auction held by the Divisional Forest officer, Garhwa South, of four forest coupes in the State of Bihar.
Under the terms of the agreements the respondents were required to deposit 25% of each of the four bids as security.
The respondents were, however, able to make the deposit in respect of one coupe only and not in respect of the other three coupes.
The respondents requested for time.
Thereafter, there was a long course of correspondence with which we are not now concerned.
Finally, on January 28, 1970, the Conservator of Forests determined the agreements.
On February 28, 1970, respondent No. 1 served a notice on the Divisional Forest officer 1175 Garhwa South, intimating him that they had filed an application under Article 226 of the Constitution in the Calcutta High Court and that section C. Deb, J., had been pleased to issue a rule nisi and also an injunction restraining the Govt.
of Bihar and the officials of the Forest Department of the Govt.
of Bihar from giving effect to the proceedings by which the leases were determined and further directing them to allow M/s. Madhya Pradesh Khair Industries to carry on the work of cutting and felling of trees and removing the material in the said forest coupes.
Alleging that the officers of the Forest Department of the Govt.
of Bihar had violated the order of injunction granted against them, the respondents filed an application to commit the Officers for Contempt of Court and in that application they prayed for and obtained an interim order directing the Officers not to interfere in any way with the activities of the respondents in removing the produce of the Khair trees.
The State of Bihar preferred an appeal to a Division Bench of the Calcutta High Court and on September 29,1970, the Division Bench passed an order allowing the appeal and directing the respondents to furnish security in a sum of Rs. 1,55,000 if they desired to remove the forest produce.
Otherwise, they were restrained from selling the trees and extracting the produce.
The respondents offered certain property as security but that was rejected by the Registrar of the Calcutta High Court as the title was found to be defective.
At this stage on January 8, 1971, the State of Bihar filed money suit No. 3 of 1971 in the Court of the Subordinate Judge of Palamau to recover a sum of Rs. 1,93,225 as damages.
The State of Bihar also filed an application under order 38, Rule 5, Code of Civil Procedure and obtained an order of attachment of the 'Kath ' manufactured by the respondents alongwith utensils, equipment, etc.
The respondents were directed to furnish security in a sum of Rs. 2 lakhs and asked to show cause why the interim attachment should not be made absolute.
The attachment was effected on January 10, 1971.
The respondents appeared before the learned Subordinate Judge and requested that the reduced the amount of security from Rs. 2 lakhs to Rs. 75,000.
The learned Subordinate Judge allowed the prayer of the respondents and reduced the amount of security from Rs. 2 lakhs to Rs. 75,000.
The State of Bihar preferred an appeal to the Patna High Court and an interim order was made by the High Court, staying the operation of the order of the learned Subordinate Judge but continuing the attachment.
On March 29, 1971, after hearing both the parties, the Patna High Court made an order directing the respondents to furnish security of immovable property in a sum of Rs. 75,000 and to deposit cash or furnish bank guarantee in a sum of Rs. 50,000.
It was directed that 1176 on such security being furnished the interim attachment would cease and the respondents would be allowed to remove the stock, utensils and equipment.
Without complying with the order of the Patna High Court, Respondent No.1 then moved the learned Single Judge of the Calcutta High Court on April 21, 1971, and obtained an order restraining the State of Bihar from continuing the money suit in the Court of the Subordinate Judge, Palamau and further directing the State to take steps to get the attachment vacated if security was furnished by the respondents as directed by the Division Bench of the Calcutta High Court.
The State of Bihar filed an appeal against the order of the learned Single Judge and the operation of the order was stayed by an order of January 10, 1972 of the Division Bench.
It was directed that the proceedings in the money suit in the Court of the learned Subordinate Judge of Palamau should proceed.
In the meanwhile on July 30, 1971, Respondent No. 1 moved another application before the learned Single Judge of the Calcutta High Court offering to deposit Rs. 60,000 in cash and requesting that on such deposit being made, they might be allowed to remove the stock.
This application was allowed on July 30, 1971, by the learned Single Judge and the amount was directed to be deposited with the counsel for the State of Bihar.
The order was later on modified on December 16, 1972, and the amount was directed to be deposited with the Registrar of the High Court.
On November 20, 1972, the State of Bihar filed an application in the Court of the Subordinate Judge, Palamau complaining that the respondents had not furnished security as directed by the Patna High Court and as the attached stock was deteriorating it might be sold by auction.
Before anything further could be done Respondent No. 1 filed a petition on 14th December, 1972, and obtained an order from the learned Single Judge of the Calcutta High Court on December 18, 1972, staying the proceedings in the money suit in the Court of the Subordinate Judge, Palamau until the attached goods were released in compliance with the orders dated July 30, 1971 and February 16, 1972.
The State of Bihar preferred an appeal against the order of the learned Single Judge and on January 22, 1973, a Division Bench of the Calcutta High Court set aside the order of the learned Single Judge and directed the proceedings in the Court of Subordinate Judge, Palamau, to go on.
Vexed by the manner in which the 1st Respondent was filing repeated applications and procuring orders from a learned Single Judge 1177 of the High Court, necessitating the filing of as many appeals to the Division Bench, the State of Bihar filed an application for committing the Respondents for Contempt of Court alleging that, by their conduct the respondents were obstructing the administration of justice and interfering with the due course of judicial proceedings.
The Patna High Court held that the respondents ' conduct was most unscrupulous one that there was gross abuse of the process of the Court, which could in certain circumstances amount to contempt of Court.
The High Court, however, dismissed the application on the ground that it was barred by limitation as it was filed beyond the period of one year prescribed by section 20 of the .
The High Court held, on a reading of the Contempt application, that the material allegation in regard to the contempt committed by the respondents was that relating to the filing of the application dated April 7, 1971, before the Single Judge of the Calcutta High Court to circumvent and nullify the order dated March 29, 1971 of the Division Bench of the Patna High Court.
As the contempt application was filed more than a year later it was time barred.
In regard to the allegation relating to the filing of the petition dated December 14, 1972, the High Court observed that there was no specific allegation that any Contempt of Court was committed by the filing of this application.
We may also mention that the respondents tendered an unconditional apology to the High Court of Bihar.
The question of accepting the apology was not considered as the application was found to be beyond time.
The Advocate General of Bihar has filed this appeal against the judgment of the Patna High Court.
Before we consider the merits of the appeal we may mention here that the learned Single Judge who made the several orders in favour of the respondents was himself compelled in a later order dated August 13, 1973 to state that the respondents had suppressed material facts and misled him on various occasions and obtained orders from him.
Section 2(c) of the defines Criminal contempt as follows: "(c) 'Criminal Contempt ' means the publication (whether by words, spoken or written, or any signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which (i) scandalises or tends to scandalise, or lowers or tends to lower the authority of any court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or 1178 (iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner".
While we are conscious that every abuse of the process of the Court may not necessarily amount to Contempt of Court, abuse of the process of the Court calculated to hamper the due course of a judicial proceeding or the orderly administration of justice, we must say, is a contempt of Court.
It may be that certain minor abuses of the process of the Court may be suitably dealt with as between the parties, by striking out pleadings under the provisions of order 6, Rule 16 or in some other manner.
But, on the other hand, it may be necessary to punish as a contempt, a course of conduct which abuses and makes a mockery of the judicial process and which thus extends its pernicious influence beyond the parties to the action and affects the interest of the public in the administration of justice.
The publice have an interest, an abiding and a real interest, and a vital stake in the effective and orderly administration of justice, because, unless justice is so administered, there is the peril of all rights and liberties perishing.
The Court has the duty of protecting the interest of the public in the due administration of justice and, so, it is entrusted with the power to commit for Contempt of Court, not in order to protect the dignity of the Court against insult or injury as the expression "Contempt of Court" may seem to suggest, but, to protect and to vindicate the right of the public that the administration of justice shall not be prevented, prejudiced, obstructed or interfered with.
"It is a mode of vindicating the majesty of law, in its active manifestation against obstruction and outrage".(1) "The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope".(2) In Halsbury 's Laws of England (4th Edn Vol. 9, paragraph 38), there is a brief discussion of when abuse of the process of the Court may be a punishable contempt.
It is said: "38.
Abuse of process in general.
The Court has power to punish as contempt any misuse of the court 's process.
Thus the forging or altering off court documents and other deceits of like kind are punishable as serious contempts.
Similarly, deceiving the court or the court 's officers by deliberately suppressing a fact, or giving false facts, may be a punishable contempt.
1179 Certain acts of a lesser nature may also constitute an abuse of process as, for instance, initiating or carrying on proceedings which are wanting in bona fides or which are frivolous, vexatious, or oppressive.
In such cases the court has extensive alternative powers to prevent an abuse of its process by striking out or staying proceedings or by prohibiting the taking of further proceedings without leave.
Where the court, by exercising its statutory powers, its powers under rules of court, or its inherent jurisdiction, can give an adequate remedy, it will not in general punish the abuse as a contempt of court.
On the other hand, where an irregularity or misuse of process amounts to an offence against justice, extending its influence beyond the parties to the action, it may be punished as a contempt".
In the present case, the respondents began 'the game ' by filing an application under article 226 of the Constitution in the Calcutta High Court, whereas in the normal course one would expect such as application to be filed in the Patna High Court within whose jurisdiction the subject matter of the dispute was situate.
For some mysterious reasons which nobody has been able to explain to us, the writ application was filed in the Calcutta High Court.
A justifiable prima facie inference from this circumstance may be that the application was not bona fide but intended to harass and oppress the opposite parties.
We do not want to say anything more about this aspect of the case as we are told that this is a failing of the respondents which they shared with several others.
Perhaps, as we had occasion to remark during the course of the hearing, some parties are unable to reconcile themselves to the fact that the Calcutta High Court has long since ceased to have jurisdiction over the area comprising the State of Bihar which it had several decades ago.
The 'game ' proceeded further.
Application after application was filed before the learned Single Judge, everyone of them designed to circumvent, defeat or nullify the effect of the orders of the Division Benches of the Calcutta High Court and the Patna High Court.
The order of the Division Bench of the Calcutta High Court directing the respondents to furnish security in a sum of Rs. 1,55,000 was never complied with.
The order of the Division Bench of the Patna High Court directing the respondents to furnish security of immovable property in a sum of Rs. 75,000 and to deposit cash or furnish bank guarantee in a sum of Rs. 50,000 was also never complied with.
1180 Instead, an order was obtained from the Single Judge of the Calcutta High Court restraining the State of Bihar from continuing the money suit in the Court of the Subordinate Judge, Palamau.
When this order was set aside by the Division Bench, an attempt was made to circumvent all earlier orders by obtaining an order from the Single Judge that they may be allowed to deposit Rs. 60,000 in cash and permitted to remove the stock from the forest coupes.
When the State of Bihar moved the learned Subordinate Judge, Palamau for a direction to auction the attached stock, the respondents moved an application on December 14, 1972, and obtained an order from the Single Judge of the Calcutta High Court staying the proceedings in the money suit in the Court of the Subordinate Judge, Palamau.
In considering the question whether the filing of the application dated December 14, 1972, amount to a Contempt of Court, the Court must take into account the whole course of the continuing contumacious conduct of the respondents from the beginning of the "game".
Clearly, not a single application made to the Single Judge was bona fide.
Every application was a daring 'raid ' on the Court and each was an abuse of the process of the Court.
The application dated December 14, 1972 praying that the proceedings in the money suit in the Court of the Subordinate Judge should be stayed was made despite the fact that earlier, on January 10, 1972, the Division Bench of the Calcutta High Court had expressly permitted the proceedings in the money suit to go on.
The application of the respondents clearly showed that they were intent upon obstructing the due course of the proceedings in the money suit in the Court of the Subordinate Judge, Palamau and to obstruct the administration of justice by abusing the process of the Court.
The High Court expressed the view that there was no specific allegation that any contempt of Court had been committed by the filing of the application dated December 14, 1972.
We are unable to agree with the view of the High Court.
Paragraph 29 of the application to commit the respondents for Contempt expressly refers to the application dated December 14, 1972 and paragraph 31 states that all the facts and circumstances enumerated in the petition established that the respondents were obstructing and interfering with the due course and administration of justice.
It was not necessary that every allegation made should be followed then and there by the statement that the allegation established a Contempt of Court.
We are satisfied that the filing of the application dated December 14, 1972, was an abuse of the process of the Court, calculated to obstruct 1181 the due course of a judicial proceeding and the administration of justice and was, therefore, a Criminal Contempt of Court.
The respondents had expressed an unconditional apology to the Patna High Court, but we are convinced that the conduct of the respondents is so reprehensible as to warrant condemnation by the imposition of a sentence.
We accordingly allow the appeal and sentence each of the respondents to pay a fine of Rs. 500/ , in default to undergo simple imprisonment for a period of two weeks.
V.D.K. Appeal allowed.

summary:
The respondents were the successful bidders at an auction of forest coupes in the State of Bihar.
As they defaulted in making the security deposit in respect of three coupes, the agreements with them were determined by the Conservator of Forests.
The respondents thereupon filed a writ petition in the Calcutta High Court instead of in the Patna High Court and followed it up with several applications one after another both in the Calcutta and Patna High Courts towards the forest department from preventing unauthorised removal of forest produce by the respondents.
Vexed by the manner in which the respondent was filing repeated applications and procuring orders of a learned single judge of the High Court necessitating the filing of as many appeals to the Division Bench, the State of Bihar moved an application for committing the respondents for contempt of court, alleging that, by their conduct the respondents were obstructing the administration of justice and interfering with the due course of judicial proceedings.
The Patna High Court held that the respondent 's conduct was most unscrupulous and that there was gross abuse of the process of the Court, which could in certain circumstances amount to contempt of Court.
However, the High Court dismissed the application on the ground that it was barred by limitation as it was filed beyond the period of one year prescribed by section 20 of the Contempt of Courts Act.
The High Court held, on a reading of the contempt application that the material allegation in regard to the contempt committed by the respondents was that relating to the filing of the application dated April 7, 1971 before the single judge of the Calcutta High Court to circumvent and nullify the order dated March 29, 1971 of the Division Bench of the Patna High Court.
As the contempt application dated 18 7 73 in OCM 7/73 was filed more than a year later, it was timeshared.
In regard to the allegation relating to the filing of the petition dated December 14, 1972, the High Court observed that there was no specific allegation that any contempt of court was committed by the filing of this application.
Though the respondents tendered an unconditional apology, its acceptance was not considered as the application was found to be beyond time.
Hence the appeal under section 19 of the .
Allowing the State appeal, the Court ^ HELD: 1.
Every abuse of process of the court may not necessarily amount to contempt of Court.
Abuse of process of the Court calculated to hamper the due course of a judicial proceeding or the orderly administration of justice is a contempt of Court.
[1178A B] 2.
It may be that certain minor abuses of the process of the court may be suitably dealt with as between the parties by striking out pleadings under the 1173 provisions of order 6, Rule 16 C.P.C. or in some other manner.
But on the other hand, it may be necessary to punish as a contempt, a course of conduct which abuses and makes a mockery of the judicial process and which thus extends its pernicious influence beyond the parties to the action and affects the interest of the public in the administration of Justice.
[1178B C] 3.
The public have an interest, an abiding and a real interest and a vital stake, in the effective and orderly administration of justice, because, unless justice is so administered, there is the peril of all rights and liberties perishing.
The Court has the duty of protecting the interest of the public in the administration of justice and, so, it is entrusted with the power to commit for contempt of Court, not in order to protect the dignity of the Court against insult or injury as the expression "Contempt of Court" may seem to suggest, but to protect and to vindicate the right of the public that administration of justice shall not be prevented, prejudiced, obstructed or interfered with.
[1178C E] Offutt vs U.S.p.11, quoted with approval.
It is not necessary that every allegation made should be followed then and there by the statement that the allegation established a contempt of Court Paragraph 29 of the application to commit the respondents for Contempt expressly referred to the application dated December 14, 1972 and paragraph 31 state that all the facts and circumstances enumerated in the petition established that the respondents were obstructing and interfering with the due course of administration of justice.
[1180F H] In the instant case: (a) the respondents began the "game" by filing an application under article 226 of the Constitution of India in the Calcutta High Court, whereas in the normal course one would expect such an application to be filed in the Patna High Court within whose jurisdiction the subject matter of dispute was situate.
A justifiable prima facie inference from this circumstance may be that the application was not bonafide but intended to harass and oppress the opposite party.
[1179C E] (b) Thereafter application after application was filed before the learned single Judge, everyone of them designed to circumvent, defect or nullify the effect of the orders of the Division Benches of the Calcutta High Court and Patna High Court.
The order of the Division Bench of the Calcutta High Court directing the respondents to furnish security in a sum of Rs. 1,55,000/ was never complied with.
The order of the Division Bench of the Patna High Court directing the respondents to furnish security of immovable property in a sum of Rs. 75,000/ and to deposit in cash or furnish bank guarantee in a sum of Rs. 50,000/ was also never complied with.
Instead, an order was obtained from the single Judge of the Calcutta High Court restraining the State of Bihar from continuing the money suit in the Court of the Subordinate Judge, Palamau.
When this order was set aside by the Division Bench, an attempt was made to circumvent all earlier orders by obtaining an order of the single Judge that they may be allowed to deposit a sum of Rs. 60,000/ in cash and permitted to remove the stock from the forest Coupes.
When the State of Bihar moved the learned Subordinate Judge, Palamau for a direction to auction the attached stock, the respondents moved an application on December 14, 1972, and obtained an order from the Single Judge of the Calcutta High Court staying the proceedings in the 1174 money suit in the Court of the Subordinate Judge, Palamau.
In considering the question whether the filing of the application dated December 14, 1972, amounts to a Contempt of Court, the Court must take into account the whole course of the continuing contumacious conduct of the respondents from the beginning of the 'game '.
Clearly, not a single application made to the Single Judge was bonafide.
Every application was a daring 'raid ' on the Court and each was an abuse of the process of the Court.
The application dated December 14, 1972 praying that the proceedings in the money suit in the Court of the Subordinate Judge should be stayed was made despite the fact that earlier, on January 10, 1972 the Division Bench of the Calcutta High Court had expressly permitted the proceedings in the money suit to go on.
The application of the respondents clearly showed that they were intent upon obstructing the due course of the proceedings in the money suit in the Court of the Subordinate Judge, Palamau and to obstruct the administration of justice by abusing the process of the Court.
[1179GH, 1180A E] (c) The application dated December 14, 1972 was an abuse of process of the Court, calculated to obstruct the due course of a judicial proceeding and the administration of justice and was therefore, a criminal contempt of Court; [1180H, 1181A] (d) though the respondents had expressed an unconditional apology to the Patna High Court, the conduct of the respondents is so reprehensible as to warrant condemnation by the imposition of a sentence.
[1181A]


judgement:
Civil Appeal No. 2355 of 1979.
Appeal by Special Leave from the Judgment and Order dated 25 7 1979 of the Calcutta High Court in Appeal No. 3/1978.
G.B. Pai, Mrs. Rashmi Dhariwal, Miss Bina Gupta, Mr. Praveen Kumar and J.R. Das for the Appellant.
Amlan Ghosh for Respondents 3 4.
The Judgment of the Court was delivered by SEN, J.
This is an appeal by special leave from a judgment of the Calcutta High Court, by which it refrained from interfering with an order of the Central Government Industrial Tribunal, Calcutta, constituted under section 7A of the , setting aside an ex parte award made by it.
The facts giving rise to the appeal are these: The Government of India, Ministry of Labour by an order dated July 26, 1975 referred an industrial dispute existing between the employers in relation to the Grindlays Bank Ltd., Calcutta and their workmen, to the Central Government Industrial Tribunal in exercise of its powers under section 10 of the for adjudication.
By a notice 343 dated March 6, 1976 the Tribunal fixed peremptory hearing of the reference for May 28, 1976, but the hearing was adjourned from time to time on one ground or other.
Eventually, the hearing of the reference was fixed for December 9, 1976.
On December 9, 1976 counsel appearing on behalf of respondent No. 3, the Commercial establishments Employees Association, representing respondents Nos.
5 to 17, sought an adjournment on the ground that the General Secretary of the Association had suffered a bereavement as his father had died on November 25, 1976, and, therefore, he had to leave to perform the shradhha ceremony falling on December 9, 1976.
In support of his prayer for adjournment, the counsel produced a telegram, but the Tribunal refused to grant any further adjournment and proceeded to make an ex parte award.
On the basis of the statement recorded by the manager of the appellant, the Tribunal held that the respondents Nos. 5 to 17 were employed as drivers by the officers of the appellant and were not the employees of the appellant and, therefore, they were not entitled to the benefits enjoyed by the drivers employed by the appellant.
On January 19, 1977, respondent No. 3, acting for respondents Nos. 5 to 17 applied for setting aside the ex parte award on the ground that they were prevented by sufficient cause from appearing when the reference was called on for hearing on December 9, 1976.
The Tribunal by its order dated April 12, 1977 set aside the ex parte award on being satisfied that there was sufficient cause within the meaning of O. IX, r. 13 of the Code of Civil procedure, 1908.
The appellant challenged the order passed by the Tribunal setting aside the ex parte award but the High Court declined to interfere.
Two questions arise in the appeal, namely (1) whether the Tribunal had any jurisdiction to set aside the ex parte award, particularly when it was based on evidence, and (2) whether the Tribunal became functus officio on the expiry of the 30 days from the date of publication of the ex parte award under section 17, by reason of sub section
(3) of section 20 and, therefore, had no jurisdiction to set aside the award and the Central Government alone had the power under sub section
(1) of section 17 A to set it aside.
It is contended that neither the Act nor the rules framed there under confer any powers upon the Tribunal to set aside an ex parte award.
It is urged that the award although ex parte, was an adjudication on merits as it was based on the evidence led by the appellant, and, therefore, the application made by respondent No. 3 was in reality an application for review and not a mere application for setting aside an ex parte award.
A distinction is sought to be drawn between 344 an application for review and an application for setting aside an ex parte award based on evidence.
The contention is that if there is no evidence led before the Tribunal, there may be power to set aside an ex parte award, but if the award is based on evidence, the setting aside of the award cannot but virtually amount to a review.
In dealing with these contentions, it must be borne in mind that the is a piece of legislation calculated to ensure social justice to both employers and the employees and advance progress of industry by bringing harmony and cordial relations between the parties.
In other words, the purpose of the Act is to settle disputes between workmen and employers which if not settled, would result in strikes or lockouts and entail dislocation of work, essential to the life of the community.
The scheme of the Act shows that it aims at settlement of all industrial disputes arising between the capital and labour by peaceful methods and through the machinery of conciliation, arbitration and if necessary, by approaching the Tribunal constituted under the Act.
It, therefore, endeavours to resolve the competing claims of employers and employees by finding a solution which is just and fair to both the parties.
We are of the opinion that the Tribunal had the power to pass the impugned order if it thought fit in the interest of justice.
It is true that there is no express provision in the Act or the rules framed thereunder giving the Tribunal jurisdiction to do so.
But it is a well known rule of statutory construction that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties.
In a case of this nature, we are of the view that the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary.
We do not find any such statutory prohibition.
On the other hand, there are indications to the contrary.
Sub section (1) of section 11 of the Act, as substituted by section 9 of the Industrial Disputes (Amendment & Miscellaneous Provisions) Act, 1956 is in these terms: "11.
(1) Subject to any rules that may be made in this behalf, an arbitrator, a Board, Court, Labour Court, Tribunal or National Tribunal shall follow such procedure as the arbitrator or other authority concerned may think fit.
" The words 'shall follow such procedure as the arbitrator or other authority may think fit ' are of the widest amplitude and confer ample power upon the Tribunal and other authorities to devise such proce 345 dure as the justice of the case demands.
Under cls.
(a) to (c) of sub section
(3) of section 11, the Tribunal and other authorities have the same powers as are vested in civil courts under the Code of Civil Procedure, 1908, of (a) enforcing the attendance of any person and examining him on oath, (b) compelling the production of documents and material objects, and (c) issuing commissions for the examination of witnesses.
Under cl.
(d) thereof, the Tribunal or such other authorities have also the same powers as are vested in civil courts under the Code of Civil Procedure, 1908 in respect of such other matters as may be prescribed.
Although the Tribunal or other authorities specified in section 11 are not courts but they have the trappings of a court and they exercise quasi judicial functions.
The object of giving such wide powers is to mitigate the rigour of the technicalities of the law, for achieving the object of effective investigation and settlement of industrial disputes, and thus assuring industrial peace and harmony.
The discretion thus conferred on these authorities to determine the procedure as they may think fit, however, is subject to the rules made by the 'appropriate Government ' in this behalf.
Part III of the Industrial Disputes (Central) Rules, 1957 makes rules in this behalf.
Rules 9 to 30 are the relevant rules regulating procedure.
State Governments too have made their own corresponding rules.
Except to the extent specified in sub s.(3) of section 11 of the Act and the rules framed thereunder, the provisions of the Code of Civil Procedure, 1908 are not applicable to proceedings before the authorities mentioned in sub s.(1).
The provisions of the Evidence Act, in their strict sense, likewise do not apply to proceedings before the authorities.
Nevertheless, all these authorities being quasi judicial in nature objectively determining matters referred to them, have to exercise their discretion in a judicial manner, without caprice, and according to the general principles of law and rules of natural justice.
Rule 22 of the Industrial Disputes (Central Rules), 1957 framed by the Central Government in exercise of its powers under section 38 of the Act, provides: "22.
If without sufficient cause being shown, any party to proceedings before a Board, Court, Labour Court, Tribunal, National Tribunal or arbitrator fails to attend or to be represented, the Board, Court, Labour Court, Tribunal, National Tribunal or arbitrator may proceed, as if the party had duly attended or had been represented." 346 Rule 24(b) provides that the Tribunal or other body shall have the power of a civil court under the Code of Civil Procedure, 1908 in the matter of grant of adjournments.
It runs thus: "24.
In addition to the powers conferred by the Act, Boards, Courts, Labour Courts, Tribunals and National Tribunals shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, when trying a suit, in respect of the following matters, namely; (a) . . . . (b) granting adjournment;" When sub section
(1) of section 11 expressly and in clear terms confers power upon the Tribunal to regulate its own procedure, it must necessarily be endowed with all powers which bring about an adjudication of an existing industrial dispute, after affording all the parties an opportunity of a hearing.
We are inclined to the view that where a party is prevented from appearing at the hearing due to a sufficient cause, and is faced with an ex parte award, it is as if the party is visited with an award without a notice of the proceedings.
It is needless to stress that where the Tribunal proceeds to make an award without notice to a party, the award is nothing but a nullity.
In such circumstances, the Tribunal has not only the power but also the duty to set aside the ex parte award and to direct the matter to be heard afresh.
The language of r. 22 unequivocally makes the jurisdiction of the Tribunal to render an ex parte award conditional upon the fulfilment of its requirements.
If there is no sufficient cause for the absence of a party, the Tribunal undoubtedly has jurisdiction to proceed ex parte.
But if there was sufficient cause shown which prevented a party from appearing, then under the terms of r. 22, the Tribunal will have had no jurisdiction to proceed and consequently, it must necessarily have power to set aside the ex parte award.
In other words, there is power to proceed ex parte, but this power is subject to the fulfilment of the condition laid down in r. 22.
The power to proceed ex parte under r. 22 carries with it the power to enquire whether or not there was sufficient cause for the absence of a party at the hearing.
Under r. 24(b) a Tribunal or other body has the powers of a civil court under O. XVII of the Code of Civil Procedure, relating to the grant of adjournments.
Under O. XVII, r. 1, a civil court has the discretion to grant or refuse an adjournment.
Where it refuses to adjourn the hearing of a suit, it may proceed either under O. XVII, 347 r. 2 or r. 3.
When it decides to proceed under O. XVII, r. 2, it may proceed to dispose of the suit in one of the modes directed in that behalf by O. IX, or to make such other order as it thinks fit.
As a necessary corollary, when the Tribunal or other body refuses to adjourn the hearing, it may proceed ex parte.
In a case in which the Tribunal or other body makes an ex parte award, the provisions of O. IX, r. 13 of the Code are clearly attracted.
It logically follows that the Tribunal was competent to entertain an application to set aside an ex parte award.
We are unable to appreciate the contention that merely because the ex parte award was based on the statement of the manager of the appellant, the order setting aside the ex parte award, in fact, amounts to review.
The decision in Narshi Thakershi vs Pradyumansinghji is distinguishable.
It is an authority for the proposition that the power of review is not an inherent power, it must be conferred either specifically or by necessary implication.
Sub sections (1) and (3) of section 11 of the Act themselves make a distinction between procedure and powers of the Tribunal under the Act.
While the procedure is left to be devised by the Tribunal to suit carrying out its functions under the Act, the powers of civil court conferred upon it are clearly defined.
The question whether a party must be heard before it is proceeded against is one of procedure and not of power in the sense in which the words are used in section 11.
The answer to the question is, therefore, to be found in sub section
(1) of section 11 and not in sub section
(3) of section 11.
Furthermore, different considerations arise on review.
The expression 'review ' is used in two distinct senses, namely (1) a procedural review which is either inherent or implied in a court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record.
It is in the latter sense that the Court in Narshi Thakershi 's case held that no review lies on merits unless a status specifically provides for it.
Obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every court or Tribunal.
The contention that the Tribunal had become functus officio and therefore, had no jurisdiction to set aside the ex parte award and that the Central Government alone could set it aside, does not commend to us.
Sub section (3) of section 20 of the Act provides that the proceedings before the Tribunal would be deemed to continue till the date on 348 which the award becomes enforceable under section 17A.
Under section 17A of the Act, an award becomes enforceable on the expiry of 30 days from the date of its publication under section 17.
The proceedings with regard to a reference under section 10 of the Act are, therefore, not deemed to be concluded until the expiry of 30 days from the publication of the award.
Till then the Tribunal retains jurisdiction over the dispute referred to it for adjudication and upto that date it has the power to entertain an application in connection with such dispute.
That stage is not reached till the award becomes enforceable under section 17A.
In the instant case, the Tribunal made the ex parte award on December 9, 1976.
That award was published by the Central Government in the Gazette of India dated December 25, 1976.
The application for setting aside the ex parte award was filed by respondent No. 3, acting on behalf of respondents Nos.
5 to 17 on January 19, 1977 i.e., before the expiry of 30 days of its publication and was, therefore, rightly entertained by the Tribunal.
It had jurisdiction to entertain it and decide it on merits.
It was, however, urged that on April 12, 1977 the date on which the impugned order was passed the Tribunal had in any event become functus officio.
We cannot accede to this argument.
The jurisdiction of the Tribunal had to be seen on the date of the application made to it and not the date on which it passed the impugned order.
There is no finality attached to an ex parte award because it is always subject to its being set aside on sufficient cause being shown.
The Tribunal had the power to deal with an application properly made before it for setting aside the ex parte award and pass suitable orders.
The result, therefore, is that the appeal must fail and is dismissed with costs throughout.
V.D.K. Appeal dismissed.

summary:
Dismissing the appeal, the Court ^ HELD: (1) It is a well known rule of statutory construction that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties.
In a case of this nature, the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary.
The words "shall follow such procedure as the arbitrator or other authority may think fit" in sub section (1) of section 11 of the Industrial Disputes Act are of the widest amplitude and confer ample power upon the Tribunal and other authorities to devise such procedure as the justice of the case demands.
The discretion thus conferred on these authorities to determine the procedure as they may think fit, however, is subject to the rules made by the 'appropriate Government ' in this behalf.
Nevertheless, all these authorities being quasi judicial in nature objectively determining matters referred to them, have to exercise their discretion in a judicial manner, without caprice, and according to the general principles of law and rules of natural justice.
[344 E F, H, 345A, C, F] (2) Where a party is prevented from appearing at the hearing due to a sufficient cause and is faced with an ex parte award, it is as if the party is visited with an award without a notice of the proceedings.
Where the Tribunal proceeds to make an award without notice to a party, the award is nothing but a nullity.
In such circumstances, the Tribunal has not only the power but also the duty to set aside the ex parte award and to direct the matter to be heard afresh.
Further, Rules 22 and 24(b) of the Industrial Disputes (Central) Rules, 1957 make it clear that the Tribunal was competent to entertain an application to set aside an ex parte award.
[346 C E] (3) Merely because the ex parte award was based on the statement of the manager of the appellant, the order setting aside the ex parte award, in fact, does not amount to review.
The expression "review" is used in two distinct senses, namely, (i) a procedural review which is either inherent or implied in a court or Tribunal to set aside a palpably erroneous order passed under a 342 misapprehension by it, and (ii) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record.
When a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every court or Tribunal.
[347 B C, E G] Narshi Thakershi vs Pradvumansinghji, A.I.R. , distinguished.
(4) The Tribunal had not become functus officio and, therefore, had the jurisdiction to set aside the ex parte award.
To contend that the Central Government alone could set aside the ex parte award is not correct.
Under section 17 A an award becomes enforceable on the expiry of 30 days from the date of its publication under section 17.
The proceedings with regard to a reference under section 10 of the Act are, therefore, not deemed to be concluded until the expiry of 30 days from the publication of the award.
Till then the Tribunal retains jurisdiction over the dispute referred to it for adjudication and upto that date it has the power to entertain an application in connection with such dispute.
That stage is not reached till the award becomes enforceable under section 17 A. [347 G, 348 A B] (5) The jurisdiction of the Tribunal had to be seen on the date of the application made to it and not the date on which it passed the impugned order.
There is no finality attached to an ex parte award because it is always subject to its being set aside on sufficient cause being shown.
The Tribunal had the power to deal with an application properly made before it for setting aside the ex parte award and pass suitable orders.
[348 D E]


judgement:
ivil Appeal Nos.
707 708 of 1980.
Appeals by Special Leave from the Judgment and Order dated 12 9 1978 of the Punjab and Haryana High Court in C.W. 2391 and 2392/78.
V.M. Tarkunde, section Bagga and Mrs. section Bagga for the Appellants.
M.S. Dhillon for the Respondents.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
To what extent may the citizen 's right to be let alone be invaded by the duty of the Police to prevent crime 313 is the problem posed in these two appeals by special leave under article 136 of the Constitution.
The two appeals are directed against the judgment of the High Court of Punjab & Haryana dismissing the Writ Petitions filed by the appellants seeking the removal of their names from the surveillance register maintained at Police Station 'A ' Division, Amritsar City and for a direction that the respondent Police Officers should be restrained from harassing the appellants by calling them to the Police Station frequently without any justification.
The appellants Malak Singh and Jaswant Singh are brothers and they claim to be engaged in a business known as 'Continental Electricals ' besides owning a hotel named Park Restaurant on Grand Trunk Road Amritsar.
They state that they are Income tax assessees and assert that they are law abiding citizens.
They claim that on account of their active political affiliation to the Akali party, one Prithipal Singh a Congress M.L.A. is enimically disposed towards them and has been instrumental in having the appellants falsely implicated in some criminal cases.
All the criminal cases ended either in acquittal or discharge.
The appellants were also detained under the MISA for sometime but they were released from detention as the Advisory Board refused to confirm their detention.
The appellants claim that they took active part in exposing the corrupt activities of the Deputy Superintendent of Police, Amritsar and had even published wall posters with the result that the Deputy Superintendent of Police had instituted a prosecution for defamation against the appellants.
As a measure of humiliation and harassment, the names of the appellants were entered in the surveillance register maintained at the Police Station 'A ' Division, Amritsar.
The appellants allege that their photographs have been displayed amongst those of notorious criminals and bad characters at the Police Station.
Whenever a Senior Police Officer visits the Police Station the appellants are required to attend the Police Station alongwith other persons whose names are entered in the surveillance register.
They are also needlessly asked to associate themselves with various investigations though they have nothing whatever to do with those investigations.
As, according to the appellants, there is no material whatsoever on the basis of which the names of the appellants could be entered in the surveillance register, they filed Writ Petitions in the High Court questioning the inclusion of their names in the surveillance register and also praying that the police should be restrained from harassing them by calling them to the Police Station without any justification.
In the High Court, counter affidavits on behalf of the respondents were filed by the Senior Superintendent of Police, Amritsar, who 314 claimed that the appellants were opium smugglers and habitual offenders and receivers of stolen property and therefore, their names were entered in the surveillance register.
It was, however, denied that their photographs had been displayed at the Police Station.
It was pleaded that the reasons for entering their names in the surveillance register were to be found in the history sheets which were confidential documents and which, therefore, could not be disclosed.
It was also pleaded that one of the appellants had been convicted in a criminal case but it transpires from the rejoinder filed by the appellants that the conviction was set aside on appeal.
As the Writ Petitions were dismissed by the High Court, the appellants have preferred these two appeals after obtaining special leave from this Court.
Shri V.M. Tarkunde, learned counsel, who appeared as Amicus curiae for the appellants urged that there were no grounds on the basis of which the respondents could entertain a reasonable belief that the appellants were habitual offenders or receivers of stolen property and therefore, there was no justification for including the names of the appellants in the surveillance register.
He further submitted that an order for surveillance was a serious encroachment on the liberty of the citizen and therefore, it was necessary that a person should be given an opportunity to show cause before his name was included in the surveillance register.
As this was not done, the inclusion of the names of the appellants in the register was bad.
We may add that the vires of the Punjab Police rules which provide for the maintenance of a surveillance register was not questioned before us.
Chapter 23 of the Punjab Police rules deals with prevention of offences.
Rule 23.4 which provides for the maintenance of a surveillance register in every Police Station is in the following terms: "23.4 (1) In every police station, other than those of the railway police, a Surveillance Register shall be maintained in Form 23.4(1).
(2) In part I of such register shall be entered the names of persons commonly resident within or commonly frequenting the local jurisdiction of the police station concerned, who belong to one or more of the following classes: (a) All persons who have been proclaimed under section 87, Code of Criminal Procedure (s.82 of the Criminal Procedure Code of 1973).
315 (b) All released convicts in regard to whom an order under section 565, Criminal Procedure Code, has been made (section 356 of the Criminal Procedure Code of 1973).
(c) All convicts the execution of whose sentence is suspended in the whole, or any part of whose punishment has been remitted conditionally under section 401, Criminal Procedure Code (section 432 of the Criminal Procedure Code of 1973) (d) All persons restricted under Rules of Government made under section 16 of the Restriction of Habitual Offenders (Punjab) Act, 1918.
(3) In Part II of such register may be entered at the discretion of the Superintendent (a) persons who have been convicted twice, or more than twice, of offences mentioned in rule 27.29; (b) persons who are reasonably believed to be habitual offenders or receivers of stolen property whether they have been convicted or not; (c) persons under security under sections 109 or 110, Code of Criminal Procedure; (d) convicts, released before the expiration of their sentences under the Prisons Act and Remission Rules without the imposition of any conditions.
This rule must be strictly construed, and entries must be confined to the names of persons falling in the four classes named therein".
Rule 23.5 provides that the surveillance register shall be written up by the officer incharge of the Police Station personally or by an Assistant Sub Inspector.
No entry in Part II is to be made except by the order of the Superintendent of Police and no entry in Part I is to be made except by the order of a Gazetted Officer.
It is also provided that ordinarily a history sheet shall be opened for a person before his name is entered in Part II of the Surveillance Register.
If from the entries in the history sheet the Superintendent is of opinion that such person should be subjected to surveillance he shall enter his name in Part II of the register.
In the case of persons who have never been convicted or placed on security for good behaviour their names shall not be entered until the Superintendent has recorded definite reasons for doing so.
The recording of reasons is to be treated as confidential.
316 Rule 23.7 prescribes that Police surveillance shall comprise such close watch over the movements of the person under surveillance, by Police Officers, Village headmen and village watchmen as may be applicable without any illegal interference.
Rule 23.8 provides that the initial preparation of a history sheet is to be done with great care and invariably, by the officer incharge of the Police Station or by a thoroughly experienced Sub Inspector.
Detailed provision is made in the Rules with regard to the preparation, maintenance and custody of history sheets.
Rule 23.31 provides that all records connected with Police surveillance are confidential and nothing contained in them may be communicated to any person and that inspection may not be allowed or copies given.
The District Magistrate and the Ilaqa Magistrate are, however, entitled to examine the records in accordance with Rules 1.15 and 1.21.
As mentioned by us, earlier, the vires of the Punjab Police Rules which provide for the maintenance of the surveillance register was not questioned before us, perhaps, because of Kharak Singh vs State of U.P. & Ors.
and Gobind vs State of Madhya Pradesh & Anr.
The two principal questions which were raised for our consideration were whether a person was entitled to be given an opportunity to show cause before his name was included in the surveillance register and whether, in the instant case, their names were included in the register without any grounds for reasonably believing them to be habitual offenders or receivers of stolen property, as required by Rule 23.4 (3) (b).
The second submission was based on the circumstance that the appellants have not been previously convicted or placed on security for good behaviour under Sec.
109 or 110 Code of Criminal Procedure or proclaimed as offenders.
So, their names could be entered in the surveillance register only if they fitted into the category of persons who are reasonably believed to be habitual offenders or receivers of stolen property, whether they have been convicted of not".
Prevention of crime is one of the prime purposes of the constitution of a police force.
The preamble to the says : "Whereas it is expedient to reorganise the police and to make it a more efficient instrument for the prevention and detection of crime".
23 of the prescribes it as the duty of police officers "to collect and communicate intelligence affecting the public peace, to pre 317 vent the commission of offences and public nuisances".
In connection with these duties it will be necessary to keep discreet surveillance over reputed bad characters, habitual offenders and other potential offenders.
Organised crime cannot be successfully fought without close watch of suspects.
But, surveillance may be intrusive and it may so seriously encroach on the privacy of a citizen as to infringe his fundamental right to personal liberty guaranteed by article 21 of the Constitution and the freedom of movement guaranteed by article 19(1) (d).
That cannot be permitted.
This is recognised by the Punjab Police Rules themselves.
Rule 23.7, which prescribes the mode of surveillance, permits that the close watch over the movements of the person under surveillance but without any illegal interference.
Permissible surveillance is only to the extent of a close watch over the movements of the person under surveillance and no more.
So long as surveillance is for the purpose of preventing crime and is confined to the limits prescribed by Rule 23.7 we do not think a person whose name is included in the surveillance register can have a genuine cause for complaint.
We may notice here that interference in accordance with law and for the prevention of disorder and crime is an exception recognised even by European Convention of Human Rights to the right to respect for a person 's private and family life.
article 8 of the Convention reads as follows : "(1) Everyone 's right to respect for his private and family life, his home and his correspondence shall be recognised.
(2) There shall be no interference by a public authority with the exercise of this right, except such as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety, for the prevention of disorder and crime or for the protection of health or morals".
As we said, discreet surveillance of suspects, habitual and potential offenders, may be necessary and so the maintenance of history sheet and surveillance register may be necessary too, for the purpose of prevention of crime.
History sheets and surveillance registers have to be and are confidential documents.
Neither the person whose name is entered in the register nor any other member of the public can have access to the surveillance register.
The nature and character of the function involved in the making of an entry in the surveillance register is so utterly administrative and non judicial, that it is difficult to con 318 ceive of the application of the rule of audi altrem partem.
Such enquiry as may be made has necessarily to be confidential and it appears to us to necessarily exclude the application of that principle.
In fact observance of the principles of natural justice may defeat the very object of the rule providing for surveillance.
There is every possibility of the ends of justice being defeated instead of being served.
It was well observed in Re : K(Infants) : "But a principle of judicial inquiry, whether fundamental or not, is only a means to an end.
If it can be shown in any particular class of case that the observance of a principle of this sort does not serve the ends of justice, it must be dismissed; otherwise it would become the master instead of the servant of justice".
The entry in the surveillance register is to be made on the basis of the material provided by the history sheet whose contents, by their very nature have to be confidential.
It would be contrary to the public interest to reveal the information in the history sheet, particularly the source of information.
Revelation of the source of information may put the informant in jeopardy.
The observance of the principle of natural justice, apart from not serving the ends of justice may thus lead to undesirable results.
We accordingly held that the rule audi altrem partem is not attracted.
But all this does not mean that the police have a licence to enter the names of whoever they like (dislike?) in the surveillance register; nor can the surveillance be such as to squeeze the fundamental freedoms guaranteed to all citizens or to obstruct the free exercise and enjoyment of those freedoms; nor can the surveillance so intrude as to offend the dignity of the individual.
Surveillance of persons who do not fall within the categories mentioned in Rule 23.4 or for reasons unconnected with the prevention of crime, or excessive surveillance falling beyond the limits prescribed by the rules, will entitle a citizen to the Court 's protection which the court will not hesitate to give.
The very rules which prescribe the conditions for making entries in the surveillance register and the mode of surveillance appear to recognise the caution and care with which the police officers are required to proceed.
The note following R. 23.4 is instructive.
It enjoins a duty upon the police officer to construe the rule strictly and confine the entries in the surveillance register to the class of persons mentioned in the rule.
Similarly R.23.7 demands that there should be no illegal 319 interference in the guise of surveillance.
Surveillance, therefore, has to be unobstrusive and within bounds.
Ordinarily the names of persons with previous criminal record alone are entered in the surveillance register.
They must be proclaimed offenders, previous convicts, or persons who have already been placed on security for good behaviour.
In addition, names of persons who are reasonably believed to be habitual offenders or receivers of stolen property whether they have been convicted or not may be entered.
It is only in the case of this category of persons that there may be occasion for abuse of the power of the police officer to make entries in the surveillance register.
But, here, the entry can only be made by the order of the Superintendent of Police who is prohibited from delegating his authority under Rule 23.5.
Further it is necessary that the Superintendent of Police must entertain a reasonable belief that persons whose names are to be entered in Part II are habitual offenders or receivers of stolen property.
While it may not be necessary to supply the grounds of belief to the persons whose names are entered in the surveillance register it may become necessary in some cases to satisfy the Court when an entry is challenged that there are grounds to entertain such reasonable belief.
In fact in the present case we sent for the relevant records and we have satisfied ourselves that there were sufficient grounds for the Superintendent of Police to entertain a reasonable belief.
In the result we reject both the appeals subject to our observations regarding the mode of surveillance.
There is no order as to costs.
S.R. Appeal dismissed.

summary:
Dismissing the appeals, the Court ^ HELD : (1) Prevention of crime is one of the prime purposes of the constitution of a police force.
In connection with the duties spoken of in section 23 of the , it will be necessary to keep discreet Surveillance over reputed bad characters, habitual offenders and other potential offenders.
Organised crime cannot be successfully fought without close watch of suspects.
But surveillance may be intrusive and it may so seriously encroach on the privacy of a citizen as to infringe his fundamental right to personal liberty guaranteed by Article 21 of the Constitution and the freedom of movement guaranteed by article 19(1)(d).
That such a thing cannot be permitted is recognised by the Punjab Police Rules themselves.
[316G, 317A B] Rule 23.7 which prescribes the mode of surveillance permits close watch over the movements of the person under surveillance but without any illegal interference.
Permissible surveillance is only to the extent of a close watch over the movements of the persons under surveillance and no more.
So long as surveillance is for the purpose of preventing crime and is confined to the limits prescribed by Rule 23.7 a person whose name is included in the surveillance registered cannot have a genuine cause for complaint.
Interference in accordance with law and for the prevention of disorder and crime is an exception recognised even by the European Convention of Human Rights to the right to respect for a person 's private and family life (Article 8).
[317B D] 2.
Discreet surveillance of suspects, habitual and potential offenders, may be necessary and so the maintenance of history sheet and surveillance a register may be necessary too, for the purpose of prevention of crime.
History sheets and surveillance registers have to be and are confidential documents.
Neither the persons whose name is entered in the register nor any other member of the public can have access to the surveillance register, the exception being that the District Magistrate and the Ilaqa Magistrate are entitled to examine the records in accordance with Rules 1.15 and 1.21.
The nature and character of the function involved in the making of an entry in the surveillance register 312 being utterly administrative and non judicial the rule of audi altrem partem is not applicable.
In fact observance of the principles of natural justice may defeat the very object of the rule providing for surveillance.
There is every possibility of the ends of justice being defeated instead of being served.
[317G H, 318A B] Further the entry in the surveillance register is to be made on the basis of the material provided by the history sheet whose contents, by their very nature have to be confidential.
It would be contrary to the public interest to reveal the information in the history sheet, particularly the source of information.
Revelation of the source of information may put the informant in jeopardy.
The observance of the principle of natural justice, apart from not serving the ends of justice may thus lend to undesirable results.
The rule audi altrem partem is, therefore, not attracted.
[318C E] Re vs K (Infants), & 238, quoted with approval.
The intention behind Rule 23 is not to give the police a licence to enter the names of whoever they like (dislike ?) in the surveillance register; nor can the surveillance be such as to squeeze the fundamental freedom guaranteed to all citizens or to obstruct the free exercise and enjoyment of those freedoms; nor can the surveillance so intrude as to offend the dignity of the individual.
Surveillance of persons who do not fall within the categories mentioned in Rule 23.4 or for reasons unconnected with the prevention of crime, or excessive surveillance falling beyond the limits prescribed by the rules, will entitle a citizen to the Court protection which the court will not hesitate to give.
The very rules which prescribe the conditions for making entries in the surveillance register recognises the caution and care with which the police officers are required to proceed.
The note following Rule 23.4 enjoins a duty upon the police officer to construe the rule strictly and confine the entries in the surveillance register to the class of persons mentioned in the rule.
Similarly Rule 23.7 demands that there should be no illegal interference in the guise of surveillance.
Surveillance, therefore, has to be unobtrusive and within bounds.
[318E H, 319A] While it may not be necessary to supply the grounds of belief to the persons whose names are entered in the surveillance register it may become necessary in some cases to satisfy the Court when an entry is challenged on the ground that there are grounds to entertain such reasonable belief.
[319C D]