judgement:
Appeal No. 2111 of 1966.
Appeal by special leave from the judgment and decree dated July 9, 1965 of the Madhya Pradesh High Court, Indore Bench in Second Appeal No. 254 of 1962.
Rameshwar Nath and Mahinder Narain, for the appellant.
M. C. Bhandare, K. Rajendra Chaudhuri and K. R. Chaudhuri, for the respondents.
The Judgment of the Court was delivered by Shah., J.
Of Khasra Nos. 33 & 34 of Maheshwar, District Khargone, Madhya Pradesh, Nathu Prasad hereinafter called the plaintiff is the recorded pattedar tenant.
On May 20, 644 1955 he granted a sub lease of the land, for a period of five years, to Ranchhod Prasad and Onkar Prasad hereinafter collectively called 'the defendants '.
On June 30, 1960 the plaintiff commenced an action in the Court of the Civil Judge, Maheshwar against the defendants claiming that the sub lease being in contravention of section 73 of the Madhya Bharat Land Revenue and Tenancy Act 77 of 1950 the 'defendants were trespassers in the land.
The defendants contended that the lease was valid, and since the plaintiff had received consideration, he was estopped from setting up the plea of invalidity of the lease.
The Trial Court decreed the action, holding that the defendants were tres passers and could not acquire Bhumiswami rights claimed by them.
The District Court agreed with the Trial Court.
In second appeal the High Court of Madhya Pradesh allowed the appeal and dismissed the plaintiff 's action.
In the view of the High Court the defendants had acquired rights as occupancy ,tenants under section 185(1)(ii)(b) of the Madhya Pradesh Land Revenue Code.
In so holding the High Court relied upon the judgment of the Madhya Pradesh High Court Rao Nihalkaran vs Ramchandra(1).
With special leave, the plaintiff has appealed to this Court.
Section 73 of the Revenue Administration and Ryotwari Land Revenue and Tenancy Act, Samvat 2007 (Act No. 66 of 1950) provides : "No Pakka tenant shall sub let for any period whatsoever any land comprised in his holdings except in the cases provided for in section 74.
Explanation Section 74 deals with sub letting by disabled persons.
Since the plaintiff is not a disabled person, the section need not be read.
Section 75 provides : "A sub lease of the whole or any part of the holding of a Pakka tenant effected properly and legally prior to the commencement of this Act shall terminate after the expiry of the period of sub lease or 4 years after the commencement of this Act, whichever period is less." Section 76 provides. "(1) If the sub lessee does not hand over possession of the land sub let to him after the sub lease ceases to be in force under sections 74 and 75 to the lessor or (1) 645 his legal heir " he shall be deemed to be a trespasser and shall be liable to ejectment in accordance with the provisions of this Act.
(2) . .
" Section 78 provides "(1) Any possession who in contravention of the provisions of this Act, obtains possession of any land by virtue of a bequest, gift, sale, mortgage or sub lease, or of any agreement purporting to be a bequest, gift, sale, mortgage or sub lease shall be deemed to be a trespasser and shall be liable to ejectment in accordance with the provisions of section 58. .
" The Madhya Bharat Legislature enacted the Madhya Bharat Ryotwari Sub lessee Protection Act, 1955 (Act 29 of 1955).
The Act came into force on October 19, 1955.
The Act was en acted to provide for stay of proceedings under section 76(1) for the ejectment of sub leases of ryotwari land after the termination of sub leases according to section 75 of the Madhya Bharat Land Revenue and Tenancy Act Samvat 2007.
"Ryotwari sub lessee" was defined in cl.
(b) of section 2 as meaning "a person to whom a pakka tenant of any Ryotwari land has sub let on sub lease any part of his Ryotwari land".
Section 3 of Act 29 of 1955 provides: "Nothwithstanding anything contained in section 76 of the Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007, during the continuance of this Act but subject to the provisions contained in section 4 below, no Ryotwari sub lessee other than a sub lessee under section 74 of the Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007, and a sub lessee deemed to be a trespasser under section 78 of the said Land Revenue and Tenancy Act, shall be ejected from his land.
" Section 3 clearly grants protection during the continuance of the Act to sub lessees.
But sub lessees under section 74 of the Madhya Bharat Land Revenue and Tenancy Act and a sub lessee deemed to be a trespasser under section 78 of that Act are outside that protection.
The Madhya Pradesh Land Revenue Code (Act 20 of 1959) was enacted by the State Legislature and was brought into force in the whole of the State of Madhya Pradesh.
By that Code.
Act 29 of 1955 was repealed.
The expression "tenant" was defined in section 2 (y) as meaning "a person holding land from a Bhumiswami as an occupancy tenant under Chapter XIV.
" Section 185, insofar as it is relevant, provides; 646 " (i) Every person who at the coming into force of this Code holds (ii) In the Madhya Bharat region (a) any Inam land as a tenant, or as a sub tenant or as an ordinary tenant ; or Explanation (b) any land as ryotwari sub lessee as defined in the Madhya Bharat Ryotwari Sub lessee Protection Act, 1955 (29 of 1955); or shall be called an occupancy tenant and shall have all the rights and be subject to all the liabilities conferred or imposed upon an occupancy tenant by or under this Code.
" By section 185 of the Madhya Pradesh Land Revenue Code a person who is holding land ,is a ryotwari sub lessee under Act 29 of 1955 is deemed to be an occupancy tenant and is entitled to all the rights and is subject to all the liabilities conferred or imposed upon an occupancy tenant by or under the Madhya Pradesh Land Revenue Code.
A person inducted as a sub lessee, but who by express pro vision contained in section 73 read with section 78 of Act 66 of 1950 is declared a trespasser, does not acquire the status of an occupancy tenant under section 185 (1) (ii) (b) of the Madhya Pradesh Land Revenue Code.
Act 29 of 1955 conferred protection only upon a ryotwari sub lessee, and a ryotwari sub lessee was defined in that Act as meaning a person in whose favour the land was settled.
A person, the lease, in whose favour was declared void by virtue of Act 66 of 1950, could not claim the status of a sub lessee.
That is so enacted in section 3 which excludes from the protection granted by Act 29 of 1955, amongst others, a sub lessee deemed to be a trespasser under section 78 of Act 66 of 1950.
A person inducted as a sub lessee contrary to the provisions of section 73 of Act 66 of 1950 did not therefore acquire any right under a contract of sub letting and his possession was not protected under Act 29 of 1955.
Such a person is not a ryotwari sub lessee as defined in the Madhya Pradesh Ryotwari Sub lessee Protection Act 29 of 1955, and it is only on "Ryotwari sub lessee" as defined in that Act that the right of occupancy tenant is conferred by section 185 (1) (ii) (b) of the Madhya Pradesh Land Revenue Code.
Krishnan, J., regarded himself bound by the following observation made by a Division Bench of the Madhya Pradesh High Court in Rao Nihalkaran 's case(1) (1) 647 "By section 3 of this Act (Act 29 of 1955) a bar was created to the ejectment of these sub lessees whose continuance had become precarious under the existing law.
The bar was to operate during the continuance of that Act which was for a definite duration notwithstanding anything contained in section 76 and 78 of the Madhya Bharat Land Revenue and Tenancy Act barring exceptions contained in section 74 of that Act.
" The observation that protection was given to sub lessees, notwithstanding anything contained in section 78 was apparently made through oversight; it is contrary to the express provisions of the Act.
The High Court was, in our judgment, in error in holding that the defendants had acquired the status of occupancy tenants by virtue of section 185(1)(ii)(b) of the Madhya Pradesh Land Revenue Code (Act 20 of 1959).
The appeal is allowed.
The order passed by the High Court is set aside and the decree passed by the District Court is restored.
There will be no order as to costs in this Court and in the High Court.
R.K.P.S. Appeal allowed.

summary:
The respondents were inducted as sub lessees in contravention of 'section 73 of the Revenue Administration and Ryotwari Land Revenue and Tenancy Act, 1950.
On the question whether they acquired rights as occupancy tenants under section 185 (1) (ii) (b) of the Madhya Pradesh Land Revenue Code.
HELD : A person inducted as a sub lessee, but who by express provision contained in section 73 read with section 78 of Act 66 of 1950 is declared a trespasser, does not acquire the States of an occupancy tenant under section 185(1)(ii)(b) of the Madhya Pradesh Land Revenue Code.
Act 29 of 1955 conferred protection only upon a ryatwari sub lessee, and a ryotwari sub lessee was defined in that Act as meaning a person in whose favour the land was settled.
A Person, the lease in whose favour was declared void by virtue of Act 66 of 1950, could not claim the status of a. sub lessee.
That is so enacted in section 3 which excludes from the protection granted by Act 29 of 1955, amongst others, a sub lessee deemed to be a trespasser under section 78 of Act 66 of 1950.
A person inducted as a sub lessee contrary to the provisions of section 73 of Act 66 of 1950 did not, therefore, acquire any right under a contract of sub letting, and his possession was not protected under Act 29 of 1955.
Such a person is not a ryotwari sub lessee defined in the Madhya Bharat Ryotwari Sub lesse protection Act 29 of 1955, and it is only on 'Ryotwari sub lessee ' as defined in that Act that the right of occupancy tenants conferred by section 185(1)(ii)(b) of the Madhya Pradesh Land Revenue Code.
[646 E] The observation contra in Rao Nihalkaran vs Ramchandra , disapproved.


judgement:
Appeal No. 2203 of 1966.
Appeal by special leave from the judgment and order dated November 8, 1965 of the Judicial Commissioner 's Court, Tripura in Writ Petition No. 27 of 1961.
M. K. Ramamurthi and Shyamala Pappu, for the appellant.
V. A Seyid Muhammad, section P. Nayar and B. D. Sharma, for the,respondents.
640 The Judgment of the Court was delivered by Shah, J.
The appellant joined the Tripura Civil Service on October 30, 1949, and was posted as a probationer Divisional Purchasing Officer, Dharmnagar.
In 1953 the Tripura Civil Service was split into two cadres senior officers being absorbed as Sub Divisional Officers and junior officers as Sub Treasury Officers.
The appellant was absorbed as Sub Treasury Officer with effect from April 1, 1950.
On May 10, 1954, the appellant was appointed officiating Sub Divisional Officer with effect from September 10, 1953.
By order dated May 12, 1954, the appellant was reverted to the post of Sub Treasury Officer with effect from May 6, 1954.
The appellant made several representations to the Chief Commissioner but without success.
The appellant was suspended by order dated May 6, 1957, for failure to obey the orders of the Additional District Magistrate and he was dismissed with effect from July 3, 1958, by the order of the Chief Commissioner.
The appellant moved a petition in the Court of the Judicial Commissioner at Tripura challenging the orders of suspension and dismissal.
On February 19, 1960 the Court set aside the impugned orders.
By order dated November 7, 1960 the Chief Commissioner reinstated the appellant to the post of Superintendent of Surveys and by the same order reverted him to his substantive post of Sub Treasury Officer with retrospective effect, from June 7, 1957.
The appeal of the appellant to the President having been rejected, he moved a petition in the Court of the Judicial Commissioner for a writ quashing the orders dated May 12, 1954 and November 7, 1960.
The appellant contended that in order of reversion cannot be made to have retrospective operation.
The petition insofar as it relates to the first order was belated.
Again there is no ground for holding that retrospective operation was in fact given to that order of reversion.
By the order dated May 12, 1954 the appellant was reverted to the post of SubTreasury Officer, but the order did not state the date from which the order was to be effective.
In summarising the averments made in the petition, the Judicial Commissioner stated that the petitioner had alleged that the order dated May 12, 1954, was to have effect from May 6, 1954.
A copy of that petition is not filed in this Court and we are unable to accept, especially having regard to the terms of the order, that any retrospective operation was sought to be given.
In any event the Judicial Commissioner was justified in refusing to entertain any contention as to the validity of the order of reversion made nearly seven years before the date on which the petition was filed, 641 The second order dated November 7, 1960, passed by the Chief Commissioner consists of two parts (i) that the appellant be reinstated in the post of the Superintendent of Surveys with effect from the afternoon of May 7, 1957; and (ii) that the appellant be reverted to the substantive post of Sub Treasury Officer with retrospective effect from June 7, 1957.
The appellant, as already stated, was suspended on May 6, 1957.
The order of suspension and the order of dismissal which followed it were set aside by the Judicial Commissioner, and the Chief Commissioner therefore reinstated the appellant with effect from the afternoon of May 7, 1957 to the post occupied by the appellant on the date on which he was suspended.
But the appellant was not holding the post of Superintendent of Surveys substantively : he was merely officiating in that post.
He was therefore reverted with effect from June 7, 1957 to his substantive post.
The order was passed because the post was filled by another officer approved by the U.P.S.C. Counsel for the appellant relied upon the observations made by section R. Das, C.J., in Parshotam Lal Dhingra vs Union of India(1) : "But the mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a punishment.
The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences.
Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponment of his future chances of promotion.
then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty." These observations.
in our judgment, do not assist the appellant.
The order reverting the appellant from June 7, 1957, to his substantive post does not entail forfeiture of his pay or allowances or loss of seniority in his substantive rank or stoppage or postponement of his future chances of promotion, (1) , 863.
642 Counsel for the appellant urged that whenever a person is reinstated as from the date on which his services were terminated he must be restored to the same office which he was holding at the date of the termination of employment or suspension and must receive salary upto the date of reinstatement which that office carried.
We find no warrant for the submission.
If the appellant had not been suspended, it was open to the Chief Commissioner still to revert him to his substantive post.
We see no reason for holding that the Chief Commissioner could not do so when he reinstated the appellant.
There is no ground for thinking that the order was made maliciously.
The reason for reversion was that since June 7, 1957 another officer was occupying the post of the Superintendent of Surveys.
The post having been already filled, the appellant cannot claim that when he was reinstated lie should have been paid emoluments attached to the office of Sub Divisional Officer on the footing that he continued to occupy that office which he was holding in an officiating capacity.
The appeal therefore fails and is dismissed.
Having regard to the circumstances of the case there will be no order as to costs.
V.P.s.
Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellant, who was a junior officer in the State service, was appointed as an officiating senior officer on May 10, 1954.
On May 12, 1954, an order was passed reverting him to the, post of junior officer.
On the ground that he refused to obey the order of reversion, on May 6, 1957 he was suspended, and ultimately dismissed.
The orders of the suspension and dismissal were set aside by the Court of Judicial Commissioner.
By order dated November 7.
1960, he was reinstated in the post of the senior officer which he was holding on the date of his suspension.
with effect from the afternoon of May 7, 1957.
By the same order, he was reverted to his substantive post of junior officer with retrospective effect from June, 7, 1957, as another officer was already occupying the post.
The appellant, thereupon, challenged both the orders dated May 12, 1954, and November 7, 1960, but the Judicial Commissioner dismissed the petition.
In appeal to this Court, HELD : (1) The order dated November 7, 1960 reverting the appellant to his substantive post did not entail forfeiture of the appellant 's pay or allowances, or loss of seniority in his substantive rank, or stoppage or postponement of his future chances of promotion.
The appellant could not claim the salary of the senior post from the date of suspension or dismissal till date of reinstatement, because, the appropriate authority, when reinstating the appellant could revert him, as from an earlier date, to his substantive post from the officiating post, provided the order was not passed mala fide.
[641 H; 642 B C] Parshotam Lal Dhingra vs Union of India, ; , referred to.
(2) There is nothing to show that any retrospective operation was given to the order dated May 12, 1954 In any event, the Judicial Commissioner was justified in refusing to entertain any contention as to its validity seven years after the order was passed.
[640 H]


judgement:
iminal Appeal No. 80 of 1968.
Appeal from the judgment and order dated November 6, 1967 of the Delhi High Court in Criminal Revision No. 189 of 1967.
Hardev Singh, for the appellant.
Bishan Narain and B. P. Maheshwari, for respondent No. 1.
L. M. Singhvi and R. N. Sachthey, for respondent No. 2.
683 The Judgement of the Court was delivered by Jaganmohan Reddy, J.
This appeal by certificate granted by the Delhi High Court under article 134(1)(c) of the Constitution is against its judgment which confirmed the conviction of the accused of an offence under section 9 of the (hereinafter referred to as the Act) and against the enhancement of the sentence of imprisonment from the one till the rising of the court to six months R.I. which is the minimum prescribed under the Act together with a fine of Rs. 1,000/ , in default to undergo six months R.I.
The appellant is a sweetmeat seller.
It is alleged that on September 1, 1965, Shri B. section Sethi, Food Inspector appointed by the Central Government under section 9 of the Act visited his shop and found that the appellant was selling coloured laddus.
The Food Inspector purchased 1,500 grams of these laddus by way of a sample by paying him Rs. 9/ as the price thereof.
This sample was subdivided into three parts and was put into three separate bottles as required under section II of the Act.
One bottle was given to the accused, another was sent to the Public Analyst and the third was retained by the Food Inspector.
The sample sent to the Public Analyst was analysed and a report was received from him on September 10, 1965 to the effect that the laddus were adulterated with unpermitted colour.
Thereupon a complaint was filed against the accused and he was convicted by the magistrate on October 17,1966 and sentenced to imprisonment till the rising of the court and to pay a fine of Rs. 1,000/ , in default to undergo six months ' R.I.
It would appear that the Municipal Corporation filed before the Sessions Judge a revision for the enhancement of the sentence because the accused having been found guilty under the provisions of section 7 read with section 16 of the Act should have been awarded the minimum sentence of six months and a fine of Rs. 1,000 but instead he was sentenced to imprisonment till the rising of the court and a fine of Rs. 1,000/ which was not in accordance with the mandatory provisions of section 16 of the Act.
The Sessions Judge, after hearing the parties accepted the contention of the Municipality and referred the case to the High Court recommending that the accused having been found guilty under the provisions of section 16 of the Act should have been awarded a minimum sentence of six months and a fine of Rs. 1,000/ , Before the High Court several contentions were raised on behalf of the accused one of which was that as his request for summoning the Public Analyst for crossexamination had not been acceded to, he had been prejudiced, as such the entire proceedings against him were vitiated.
The High Court however rejected this contention on the ground that section 510 of the Code of Criminal Procedure had no application in that it only dealt with Chemical Examiner or an Assistant Chemical L3Sup, CI/70 13 684 Examiner and other experts mentioned therein.
It was also observed that where the accused desired to challenge the report of the Public Analyst under the Act, he had to follow the procedure provided in section 13(2) for sending the sample to the Director of Central Food Laboratory for his examination, because any report given by him will supersede the report of the Public Analyst and would be final and conclusive as to the facts stated therein.
Before us also a similar contention was urged by the learned Advocate for the accused Shri Hardev Singh who had produced before us the application made on behalf of the accused under section 510(2) for calling the Public Analyst which was summarily rejected on 28th August 1966.
This contention urged before us has to be determined in the light of the relevant provisions of the Act.
It cannot be disputed that any person selling food with im permissible colouring matter contravenes the provisions of section 7 which prohibits the selling of any adulterated food and would be punishable under section 16 of the Act.
What is adulterated article of food has been defined in section 2 (i) and so far as it is related to colouring sub cl.
(i) of cl.
(i) of section 2 provides that an article of food shall be deemed to be adulterated "if any colouring matter other than that prescribed in respect thereof and in amounts not within the prescribed in respect thereof and in amounts not within the prescribed limits of variability is present in the article".
Rules 23 and 27 of the Prevention of Food Adulteration Rules, 1955 prohibit the addition of any colouring matter except permitted by the Rules, and of inorganic colouring matters and pigments to any article of food.
What is permitted and to what extent has been stated in rr.
24 to 26 and 28 to 3 1, but in so far as this case is concerned we may merely refer to rr.
26 and 28 the former of which gives a list of natural colouring matters that can be, used and the latter with coal tar dyes.
We are told that the laddus which were being sold by the accused had yellow colour.
If so, item 2 of r. 28 prescribes that the only permitted colours are Tartrazine with colour index 640 belonging to Chemical class of Xanthene and Sunset Yellow FCF belonging to the chemical class Azo, and these alone can be used.
It will therefore be incumbent on the Public Analysts to say whether the colour used is that which is permissible under any of the rules and if as in the report he has stated that the sample of the laddus purchased by the Food Inspector was coloured with unpermitted colour, it would mean that the accused has not used any of the colours permitted under the rules.
The report of the Public Analyst is as follows: "Butyro Refractometer reading at 40 C of the fact extracted from sweets 50 0 Baudouin test of the extracted fact Positive Reichert value of the extracted fact 7.59 Colour unpermitted.
1 1 1 the same is adulterated due to 7.0 excess in Butyro Refractometer reading at 40 0 C of the fact ex 685 tracted from sweets, 20.41 deficiency in Reichert value of the extracted fact, Baudouin test of extracted fact being positive, and also coloured with unpermitted colour." The learned Advocate for the accused submits that the refusal of the court to grant the application of the accused to call the Public Analyst Shri Sudhama Rao for cross examination has greatly prejudiced him, as such the conviction ought to be quashed.
It is contended that the accused has a valuable right of cross examination to test the contents of the report given by the Public Analyst and the court has to summon him if so desired.
On the other hand it is contended both by Shri Bishan Narain for the Delhi Municipality as well as Dr. Singhvi for the Union of India that no such right has been conferred under the Act when the provisions of section 13(5) have not only made the document signed by the Public Analyst to be used in evidence of the facts stated therein in any proceedings under the Act or under section 272 to 276 of the Indian Penal Code but has given a right to the accused to have the, sample sent to the Director of the Central Food Laboratories under section 13(2) whose report supersedes that of the, Public Analyst and is final and conclusive.
In view of these provisions it is said that the legislature inferentially took away the right of the accused to summon the Public Analyst either for examination or cross examination, as such the analogy of section 510(2) of the Criminal Procedure Code which specifically gives a right to summon and examine the chemical examiner and other experts therein stated, as to the subject matter of their respective reports has no relevance.
Dr. Singhvi further contends that there are a class of cases which permit of trials by certificates where the general rule of evidence that every document in order to be admissible has to be proved by the person signing it has no application as the statute permits it to be proved without calling the author of it.
While it cannot be disputed that there are certain classes of cases where certificates have been treated as conclusive evidence, there were yet others though admissible without calling the functionaries that gave them were none the less only prima facie evidence.
In cases where the certificates are not to be treated as conclusive evidence and they are only prima facie evidence, the party against whom they are produced has a right to challenge the subject matter of the certificate.
The statutes have also in some cases recognised this right, such as for instance in sub section
(2) of section 510 Criminal Procedure Code in respect of reports given under the hand of several experts named in sub section
(1) notwithstanding the fact that they may be used in evidence in enquiry, trial or other proceedings under the Code.
Sub section
(2) provides : "The court may if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such person as to the subject matter of the report".
Similarly sub section
686 1) of section 110 of the English Food and Drugs Act, 1955 while providing that the production by one of the parties of the certificate of a Public Analyst in the form prescribed in section 92(5) or of a document supplied to him by the other party as being a copy of such certificate shall be sufficient evidence of the facts stated therein unless in the first mentioned case the other party requires that the analyst shall be called as a witness.
Sub section (2) of section 110 also gives a like opportunity in the case of a certificate of an officer who took a sample of the milk.
It appears to us that where certificates are not made final and conclusive evidence of the facts stated therein, it will be open to the party against whom certificates which are declared to be sufficient evidence either to rebut the facts stated therein by his own or other evidence or to require the expert to be produced for cross examination which prayer the court is bound to consider on merits in granting or rejecting it.
There is no presumption that the contents are true or correct though such a certificate is evidence without formal proof.
In any case where there is evidence to the contra the court is bound to consider that evidence along with such a certificate with or without the evidence of the expert who gave it being called and come to its own conclusion.
It is true that sub section
(2) of section 13 of the Act has given a right both to the accused as well as the complainant on payment of the prescribed fee to apply to the court after the prosecution has been instituted to send part of the sample preserved as required under sub cl.
(1) or sub cl.
(iii) of cl.
(c) of sub section
( 1) of section 11 to the Director of the Central Laboratory for a certificate, and the court is bound to send it under its seal to the said Director who has to submit a report within one month from the date of the re ceipt.
This certificate under sub section
(3) supersedes the Public Analyst 's certificate and is conclusive and final under sub sec.
But nothing contained in these sub sections relating to certificate of the Director of the Central Food Laboratory in any way limits the right of the accused under section 257 of the Code of Criminal Procedure to require the Public Analyst to be produced.
The court may, as we said earlier, reject the prayer for good and sufficient reasons such as for instance where it is made for the purpose of vexation or delay or for defeating the ends of justice.
In Mangaldas Raghavji vs State(1) this Court held that where the accused had not done anything to call the Public Analyst the court could legally act on the report of the Public Analyst.
Mudholkar, J. speaking for the Court observed at p. 900 : "It is true that the certificate of the Public Analyst is not made conclusive but this only means that the court of fact is free to act on the certificate or not as it thinks fit.
(1) ; 687 Again at p. 902 it was said, "As regards the failure to examine the Public Analyst as a witness in the case no blame can be laid on the prosecution.
The report of the Public Analyst was there and if either the court or the appellant wanted him to be examined as a witness appropriate steps would have been taken.
The prosecution cannot fail solely on the ground that the Public Analyst had not been called in the case.
" In Sukhmal Gupta vs The Corporation of Calcutta (unreported, Criminal Appeal No. 161 of 1966 decided on 3rd May 1968) the Assistant Public Analyst who had analysed the sample was examined and was cross examined by the defence.
It was contended that the Public Analyst was not called.
There does not appear to have been any attempt to have him called, nor was any prejudice shown.
On the other hand, the accused could have availed of the valuable right given to him under section 13(2) but he did not do so, nor did lie put any question in cross examination that the tea was liable to deterioration and could not be analysed by the Director of Central Food Laboratory.
In these circumstances the evidence of the Assistant Public Analyst and the report of the Public Analyst was accepted in maintaining the conviction.
In this case we would have remanded it to give the accused an opportunity to examine the Public Analyst, but it appears to us that even before us no attempt was made as to why the evidence was required and what is the specific point which needs to be elucidated.
The accused knows what colour he added, he could have easily said that that colour was one of the permitted colours, but he did not say so in his examination under section 342, nor did he produce any evidence of those whom he employed as to the colour which was added.
In our view, the application was made more to delay the disposal of the case; otherwise he could have easily made an application under section 13(a) as soon as a complaint was lodged against him on 19th Jan. 1966 which was within 3 1/2 months from the purchase of the sample and the receipt of the report.
There is nothing to show that either the Laddus or the colour would have deteriorated even if he had made his application under section 13(2) when he made the application under section 510(2) on 29th August 1966.
In these circumstances, we do not consider this to be a fit case for interference.
The appeal is accordingly dismissed.
R.K.P.S. Appeal dismissed.

summary:
The appellant was convicted for selling food with impermissible colouring matter.
He contended that as his request for summoning the Public Analyst for cross examination had not been acceded to he had been prejudiced and as such the entire proceeding against him were vitiated The High Court rejected the contention on the ground that section 510 of the Code of Criminal Procedure bad no application in that it only dealt with the experts mentioned therein.
The Court also observed that when the accused desired to challenge the report of the Public Analyst under the Act, he had to follow the procedure provided in section 13(2) for sending the sample to the Director of Central Food Laboratory whose report would be final and conclusive.
Dismissing the appeal, HELD: Where certificates are not made final and conclusive evidence of the facts stated therein, 'It will be open to the party against whom certificates are given either to rebut the facts stated therein by his own or other evidence or to require the expert to be produced for cross examination which prayer the court is bound to consider on merits in granting or rejecting it.
The court may reject the prayer for good and sufficient reasons such as for instance where it is made for the purpose of vexation or delay or for defeating the ends of justice.
[685 B C; F G] The present case is not a fit case for interference.
No attempt was made to establish why the evidence was required and as to the specific point which needed to be elucidated.
The accused knew what colouring matter he added; he could have easily said that that colour was one of the permitted colours; but he did not say so in his examination under section 34 nor did he produce any evidence of those whom he employed as to the colouring matter which was added.
The application was made more to delay the disposal of the case.
[687 E] Mangaldas Raghavji vs State, ; and Sukhmal Gupta vs The Corporation of Cakutta, Cr. A. No. 161/66 dated 3 5 68, referred to.


judgement:
Appeal No. 2227 of 1966.
689 Appeal from the judgment and decree dated December 10, 1963 of the Kerala High Court in Appeal Suit No. 1094 of 1959.
section V. Gupta and Lily Thomas, for the appellants.
Rameshwar Nath, for respondent No. 2.
Sardar Bahadur, Vishnu Bahadur Saharya and Yougindra Khushalani, for respondent No. 3.
The Judgment of the Court was delivered by Hegde, J.
The question for decision in this appeal by certificate is short but important and that question is what are the principles governing the assessment of damages under sections 1A and 2 of the (Act XIII of 1855) (to be hereinafter referred to as the Act) ? One Krishnamoorthy son of plaintiffs 1 and 2 aged about 8 years was hit by a bus owned by the 1st defendant (who died during the pendency of this suit) and driven by the second defendant on February 26, 1956.
As a result of that accident Krishnamoorthy sustained very severe injuries.
He became unconscious almost immediately after the accident and died in the hospital on the early morning of February 28, 1956.
Krishnamoorthy was the eldest son of plaintiffs 1 and 2.
Both the courts have come to the conclusion that he was a bright boy and was at the top of his class in his school.
At the time of his death he was in Standard III.
His parents are affluent.
They could have afforded to give him good education.
Hence there was a bright future for him.
The plaintiffs claimed a sum of Rs. '30,000 as damages under sections IA and 2 of the Act.
The District Judge computed the damages under sections IA and 2 at Rs. 5,000.
In appeal the High Court determined the damages under section 1A at Rs. 5,000 and under section 2 at Rs. 1,000.
Aggrieved by that decision, the plaintiffs have brought this appeal.
We shall first read section 1A and 2 for the purpose of ascertaining the principles governing the assessment of the damages under those sections.
Section IA reads : "Whenever the death of a person shall be caused by wrongful act, neglect or default and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable it death had not ensued shall be liable to an action or suit for damages notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime.
Every such action or suit shall be for benefit of the wife, husband, parent and child, if any, of the person 690 whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased;" Section 2 reads thus : "Provided always that not more than one action or suit shall be brought for, and in respect of the same subject matter of complaint.
Provided that, in any such action or suit, the executor, administrator or representative of the deceased may insert a claim for and recover any pecuniary loss to the estate of the deceased occasioned by such wrongful act, neglect or default, which sum, when recovered, shall be deemed part of the assets of the estate of the deceased.
" The rights under the two provisions are quite distinct and independent.
Under the former section the damages are made payable to one or the other relations enumerated therein whereas the latter section provides for the recoupment of any pecuniary loss to the estate of the deceased occasioned by the wrongful act complained of.
Sometimes, the beneficiaries under the two provisions may be the same.
Section IA is in substance a reproduction of the English Fatal Accidents Acts 9 and 10 Vict.
93 known as the Lord Campbell 's Acts.
Section 2 corresponds to one of the provisions in the English Law Reform (Miscellaneous Provisions) Act, 1934.
The scope of section 1 of the Campbell 's Acts was considered by the House of Lords in Davies and Anr.
vs Powell Dufferyn Associated Collieries Ltd.(1), Dealing with the mode of asse ssment of damages under that section Lord Russel of Killowen observed "The general rule which has always prevailed in regard to the assessment of damages under the is well settled, namely, that any benefit accruing to a dependant by reason of the relevant death must be taken into account.
Under those Acts the balance of loss and gain to a dependant by the death must be ascertained, the position of each dependant being considered separately.
" Lord Wright stated the law on the point thus "The general nature of the remedy under the Fatal Accidents general Acts has often been explained.
These Acts provided a new "cause of action and did not merely regulate or enlarge an old one", as Lord Summer observed in Admiralty Commissioners vs section section (1) 691 America(1).
The claim is, in the words of Bowen L.J., in The Vera Cruz (No. 2)(2) for injuriously affecting the family of the deceased.
It is not a claim which the deceased could have pursued in his own life time, because it is for damages suffered not by himself, but by his family after his death.
The Act of 1846, section 2 provides that the action is to be for the benefit of the wife or other member of the family, and the jury (or judge) are to give such damages as may be thought proportioned to the injury resulting to such parties from the death.
The damages are to be based on the reasonable expectation of pecuniary benefit or benefit reducible, to money value.
In assessing the damages all circumstances which may be legitimately pleaded in diminution of the damages must be considered : Grand Trunk Ry.
Co. of Canada vs Jennings(4).
The actual pecuniary loss of each individual entitled to sue can only be ascertained by balancing, on the one hand, the loss to him of the future pecuniary benefit, and, on the other, any pecuniary advantage which from whatever source comes to him by reason of the death.
" In ascertaining pecuniary loss caused to the relations mentioned in section IA, it must be borne in mind that these damages are not to be given as solatium but are to be given with reference to a pecuniary loss.
The damages should be calculated with reference to a r easonable expectation of pecuniary benefit from the continuance of the life of the deceased see Franklin vs The South East Railway Company (4 In that case Pollock, C.B. observed : "We do not say that it was necessary that actual benefit should have been derived, a reasonable expectation is enough and such reasonable expectation might well exist, though from the father, not being in need, the son had never done anything for him.
On the other hand a jury certainly ought not to make a guess in the matter, but ought to be satisfied that there has been a loss of sensible and appreciable pecuniary benefit, which might have been reasonably expected from the continuance of the life." In Taff Vale Railway Company vs Jenkins(5), the Judicial Committee observed that it is not a condition precedent to the maintenance of an action under the Fatal Accidents Act, 1846, (1) ,52 (3) 13 Appeal Cases.800, 804.
(4) 157, English Reports 3 H & N.T. 448.
(5) (2) , 101: 692 that the deceased should have been actually earning money or money 's worth or contributing to the support of the plaintiff at or before the date of the death provided that the plaintiff had a reasonable expectation of pecuniary benefit from the continuance of the life.
Therein Lord Atkinson stated the law thus : "I think it has been well established by authority that all that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person who sues.
It is quite true that the existence of this expectation is an inference of fact there must be a basis of fact from which the inference can reasonably be drawn; but I wish to express my emphatic dissent from the proposition that it is necessary that two of the facts without which the inference cannot be drawn are, first, that the deceased earned money in the past, and second, that he or she contributed to the support of the plaintiff.
These are, no doubt, pregnant pieces of evidence, but they are only pieces of evidence; and the necessary inference can I think be dr awn from circumstances other than and different from them." in an action under the Act, it is not sufficient for the plaintiff to prove that he lost by the death of the deceased a mere speculative possibility of pecuniary benefit.
In order to succeed, it is necessary for him to show that he has lost a reasonable proba bility of pecuniary advantage.
In Barnett vs Cohen and ors.(1), McCardie J. speaking for the Court quoted with approval the following observations of Lord Haldane in his judgment in Taff Vale Ry.
Co. vs Jenkins(2) : " "The basis is not what has been called solatium, that is to say, damages given for injured feelings or on the ground of sentiment, but damages based on compensation for a pecuniary loss.
But then loss may be prospective, and it is quite clear that prospective loss may be taken into account.
It has been said that this is qualified by the proposition that the child must be shown to have been earning something before any damages can be assessed.
I know of no foundation in principle for that proposition either in the statute or in any doctrine of law which is applicable; nor do I think it is really established by the authorities when you examine them. . .
I have already indicated that in my view the real question is that which Willes, J. defines in one of the cases quoted to us, Dalton vs South (1) (2) 693 Eastern Rv. Co.(1) 'Aye or No, was there a reasonable expectation of pecuniary advantage ?" Proceeding further the learned judge referred to the observations of Pollock, C. B. in Taff Vale Ry.
Co. vs Jenkins(2) : " "It appears to me that it was intended by the Act to give compensation for damage sustained, and not to enable persons to sue in respect of some imaginary damage, and so punish those who are guilty of negligence by making them pay costs." " Dealing with the facts of the case before him McCardie, J. observed : "In the present action the plaintiff has not satisfied me that he had a reasonable expectation of pecuniary benefit.
Ms child was under four years old.
The boy was subject to all risks.
of illness, disease, accident and death.
His education and upkeep would have been a substantial burden to the plaintiff for many years if he had lived.
He might or might not have turned out a useful young man.
He would have earned nothing till about sixteen years of age.
He might never have aided his father at all.
He might have proved a mere expense.
I cannot adequately speculate one way or the other.
In any event he would scarcely have been expected to contribute to the father 's income, for the plaintiff even now possesses 1,0001, a year by his business and may increase it further, nor could the son have been expected to aid in domestic service.
The whole matter is beset with doubts, contingencies and uncertainties.
Equally uncertain, too, is the life of the plaintiff himself in view of his poor health.
He might or might not have survived his son.
That is a point for consideration, for, as was pointed out by Bray J., when sitting in the Court of Appeal in Price vs Glynea and Castle Coal Co.(3): "Where a claim is made under Lord Campbell 's Acts, as it is here, it is not only a question of the expectation of the life of the claimant".
Upon the facts of this case the plaintiff has not proved damage either actual or prospective.
His claim is pressed to extinction by the weight or ht or multiplied contingencies.
The action therefore fails.
" The mode of assessment of damages is not free from doubt.
It is beset with certain difficulties.
It depends on many impon derables.
The English courts have formulated certain basis for (1) ; (2) (3) , 198.
694 calculating damages under Lord Campbell 's Acts.
The rules ascertained by the English courts are set out in Winfield on Torts 7th Edn.
at pp.
135 and 136 as follows : "The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some ex tent may depend on the regularity of his employment.
Then there is an estimate of how much was required or expended for his own personal and living expenses.
The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a number of years ' purchase.
That sum, however, has to be taxed down by having regard to the uncertainties, for instance, that the widow might have again married and thus ceased to be dependent, and other like matters of speculation and doubt".
The number of years ' purchase is left flud, from twelve to fifteen has been quite a common multiple in the case of a healthy man, and the number should not be materially reduced by reason of the hazardous nature of the occupation of the deceased man.
These principles are, however, only appropriate where the deceased was the bread winner of the family.
Obviously they cannot be applied, for example, where the claim is in respect of a mere expectation of pecuniary benefit from the deceased or where the decased 's contribution to the family was in kind and not in cash.
In truth, each case must depend upon its own facts.
In Dolbey vs Godwin(1), the plaintiff was the widowed mother of the deceased, an unmarried man 29 years of age, and he had contributed substantially to her upkeep.
The Court of Appeal held that it would be wrong to assess the damages on the same basis as if the plaintiff were the widow of the deceased, principally on the ground that it was likely that he would have married in due course and that then his contributions to his mother would have been reduced.
" The mode and manner of ascertainment of damages in fatal accidents cases came up for consideration in Nance vs British Columbia Electric Rly.
Co. Ltd.(2).
In that case Viscount Simon, formulated the following tests for ascertaining the damages : (1) First estimate what was the deceased man 's expectation of life if he had not been killed when he was; and (2) What sums during those years, he would have probably applied to the support of the dependant.
In fixing the expectation of life of the deceased regard must be had not only to his age and bodily (1) , 1103.
(2) 695 health but premature termination of his life by a later accident.
In estimating future provision for his dependant the amounts he usually applied in this way before his death are obviously relevant, and often the best evidence available though not conclusive, since if he had survived, his means might have expanded or shrunk, and his liberality might have grown or wilted.
After making the calculations on the basis of the two tests, his Lordship observed that deduction must further be made for the benefit accruing to the dependant from the acceleration of his interest in his estate and further allowance must be made for the possibility that the dependant himself might have died before he died.
In Gobald Motor Service Ltd. and anr.
vs R. M. K. Veluswami and ors.(1), this Court held that the actual extent of the pecuniary loss to the aggrieved party may depend on a data which cannot be ascertained accurately but must necessarily be an estimate, or even partly a conjecture.
Shortly stated, the general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever sources come to them by reason of the death, that is, +the balance of loss and gain to a dependant by the death must be ascertained.
Therein it was further observed that where the courts below have on relevant material placed before them ascertained the amount of damages under the head of pecuniary loss to the dependants of the deceased, such findings cannot be disturbed, in second appeal except for compelling reasons.
The law on the point arising for decision may be summed up thus : Compulsory damages under section IA of the Act for worngful death must be limited strictly to the pecuniary loss to the beneficiaries and that under section 2, the measure of damages is the economic loss sustained by the estate.
There can be no exact uniform rule for measuring the value of the human life and the measure of damages cannot be arrived at by precise mathematical calculations but the amount recoverable depends on the particular facts and circumstances of each case.
The life expectancy of the deceased or of the beneficiaries whichever is shorter is an important factor.
Since the elements which go to make up the value of the life of the deceased to the designated beneficiaries are necessarily personal to each case, in the very nature of things, there can be no exact or uniform rule for measuring the value of human life.
In assessing damages, the court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is inevitable.
As a general rule parents are entitled to recover the present cash value of the prospective service of the deceased minor child.
In addition they may receive (1) ; 696 compensation for loss of pecuniary benefits reasonably to be expected after the child attains majority.
In the matter of ascertainment of damages, the appellate court should be slow in disturbing the findings reached by the courts below, if they have taken all the relevant facts into consideration.
Now applying the above rules to the facts of the present case, it is seen that the deceased child was only 8 years old at the time of his death.
How he would have turned out in life later is at best a guess.
But there was a reasonable probability of his becoming a successful man in life as he was a bright boy in the school and his parents could have afforded him a good education.
It is not likely that he would have given any financial assistance to his parents till he was at least 20 years old.
As seen from the evidence on record, his father was a substantial person.
He was in business and his business was a prosperous one.
As things stood he needed no assistance from his son.
There is no material on record to find out as to how old were the parents of the deceased at the time of his death.
Nor is there any evidence about their state of health.
On the basis of the evidence on record, we are unable to come to the conclusion that the damages ordered by the High Court are inadequate.
In the result this appeal fails and the same is dismissed.
But in the circumstances of the case we make no order as to costs.
G.C. Appeal dismissed.

summary:
The appellants filed a suit claiming a sum of Rs. 30,000 as damages under sections 1A and 2 of the for the death of their son aged 8 years.
The boy had stood first in Standard III and his future was claimed to be bright.
The trial court computed the damages under sections 1A and 2 at Rs. 5,000.
In appeal the High Court determined the damages under section 1A at Rs. 5,000 and under section 2 at Rs. 1,000.
In appeal by certificate before this Court.
HELD : Compulsory damages under section IA of the Act for wrongful death must be limited strictly to the pecuniary loss to the beneficiaries and under section 2 the measure of damages is the economic loss sustained by the estate.
There can be no exact uniform rule for measuring the value of human life and the measure of damages cannot be arrived at by precise mathematical calculations but the amount recoverable depends on the particular facts and circumstances of each case.
The life expectancy of the deceased or of the beneficiaries whichever is shorter is an important factor, Since the elements which go to make up the value of the life of the deceased to ' the designated beneficiaries are necessarily personal to each case in the very nature of things, there can be no exact or uniform rule for measuring the value of human life.
In assessing the damages the court must exclude all considerations of matter which rest in speculations or fancy though conjecture to some extent is inevitable.
As a general rule parents are entitled to recover the present cash value of the prospec tive service of the deceased minor child.
In addition they may receive compensation for loss of pecuniary benefits reasonably to be expected after the child attains majority.
In the matter of ascertainment of damages, the appellate court should be slow in disturbing the findings reached by the courts below, if they have taken all the relevant facts into consideration.
[695 F 696 A] Davies and Anr.
vs Powell Dufleryn Associated Collieries Ltd. , Franklin vs South East Railway Company, ; H. & N. 448, Taff Vale Railway Company vs Jenkins, , Bartlett V. Cohen & Ors. , Nance vs British Columbia Electric Rly.
Co. Ltd. and Gobald Motor Service Ltd. & Anr.
vs R.M.K. Veluswami & Ors.
; , applied.
(ii) In the present case although the deceased was a bright child, it was uncertain how much assistance he would have given after growing up to his parents.
The father was a prosperous business man and hardly needed assistance.
There was no material on record as to the age of the parents and their state of health.
On the basis of the evidence on record it could not be said that the damages ordered by the High Court were inadequate.
[696 C]


judgement:
Appeal.
1644 of 1966.
Appeal by special leave from the judgment and order dated January 18, 1966 of the Allahabad High Court in Civil Revision Application 24 of 1966.
V. A. Sevid Muhammad and section P. Nayar, for the appellant.
section C. Agarwal, R. K. Garg, D. P. Singh and section Chakravarty.
for respondents Nos. 1 to 28 and 30 to 57.
727 The Judgment of the Court was delivered by Dua, J.
This appeal by special leave is directed against the order of a learned Single Judge of the Allahabad High Court affirming on revision under section 115 Civil P.C. the order of the learned Additional District Judge, Jhansi, who had allowed the respondent 's appeal from the order of the learned City Magistrate, Jhansi, made on an application presented by the respondents under section 15 of the IV of 1936.
The City Magistrate was the " 'authority" appointed under section 15 and the district court was the court of appeal under section 17 of the said Act.
The respondents through the Assistant Secretary of the National Railway Mazdoor Union Work shop Branch, Jhansi had asserted in their application under section 15 that they were workers within the meaning of section 2(1) of the (63 of 1948) and complained that they were denied wages for overtime work done by them on the erroneous ground that they were not workers within the aforesaid provision.
The learned Magistrate held that the respondents had been entrusted with purely clerical duties and they were not connected in any manner with the manufacturing process.
On this conclusion their application was dismissed.
On appeal the learned Additional District Judge disagreed with this view and came to the conclusion that the work done by the respondents was incidental to or connected with the manufacturing process.
It was observed in the order that some of the respondents were entrusted with the duty of checking the time work of each worker in the workshop, a few others were timekeepers and the remaining respondents prepared account sheets on the basis of the time sheets and did other work incidental to the running of the work shop including payment of wages to the staff of the workshop and the office.
The High Court on revision as already observed, affirmed the order of the learned Additional District Judge.
On appeal in this Court the short question we are called upon to decide is whether the respondents, who are time keepers fall within the purview of the definition of "worker" as contained in section 2 (1) of the .
The respondents have raised a preliminary objection that the appeal is incompetent on the ground that respondent No, 29 (T. A. Kolalkar) had died after the order of the High Court but his name continued to appear in the array of respondents.
As his legal representatives had not been brought on the record, the appeal against him is incompetent and since there was a joint application on behalf of all the respondents which was dealt with and decided by a common order by the learned Magistrate, the appeal against the other respondents must also be held to be incompetent.
The impugned order having become final as the 728 deceased T. A. Kolalkar, the present appeal against other respondents should, according to the argument, be held to be incompetent because the reversal of the impugned order as against them would give rise to conflicting decisions on the point.
Recently this Court disallowed.a similar objection in Indian Oxygen Ltd. vs Shri Rani Adhar Singhand others(1) and when the attention of the respondent 's learned counsel was drawn to that decision, the objection was not seriously pressed.
We now turn to the merits of the appeal.
The word "worker" is defined in section 2(1) of the to mean "a person employed directly or through any agency, whether for wages or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process.
" This definition seems to us to be fairly wide because it takes within its sweep not only persons employed in any manu facturing process but also in cleaning any part of the machinery or premises used for a manufacturing process and goes far beyond the direct connection with the manufacturing process by extending it to other kinds of work which may either be incidental to or connected with not only the manufacturing process itself but also the subject of the manufacturing process.
The word " manufacturing process" is defined in section 2(k) of the in fairly wide language.
It means any process for : "(i) making, altering, repairing, ornamenting, finishing, packing. oiling, washing, cleaning breaking up, demolishing, or otherwise treating or adapting any article or substance with a view to its use, sale, transport, delivery or disposal, or (ii) pumping oil, water or sewage, or (iii) generating, transforming or transmitting power; or (iv) composing types for printing by letter press, lithography, photogravure or other similar process or book binding; (v) constructing, reconstructing, repairing, refitting, finishing or breaking up ships or vessels;" Now the conclusion of the learned Additional District Judge on the nature of work of the respondents, which, in our opinion, (1) Civil Appeal No. 1444 of 1966 decided on 24th Sept. 1968.
729 being one of fact, must be held to be binding on the High Court on revision and also not open to reassessment on the merits in this Court on special leave appeal from the order of the High Court on revision, is that, the time keepers prepare the pay sheets of the workshop staff, maintain leave account, dispose of settlement cases and maintain records for statistical purposes.
Fourteen of the respondents, according to this conclusion, are timekeepers who maintain attendance of the staff, job card particulars of the various jobs under operation and time sheets of the staff working on various shops dealing with the production of Railway spare parts and repairs etc.
Four of the respondents are head time keepers entrusted with the task of supervising the work of other respondents.
The question arises if on this conclusion it can be held that as a matter of law the respondents fall outside the definition of "worker" as contemplated by section 2( 1) of the and that the High Court erred in dismissing the revision.
The appellant 's learned counsel has submitted that the expression "incidental to" or "connected with" connotes a direct connection with the manufacturing process and therefore if the duties assigned to the respondents have no such direct connection with the manufacturing process then they cannot fall within the purview of the word "worker".
In support of his submission lie has referred to some law dictionaries.
In Law Lexicon in British India by Ramanathan Iyer "incidental power" is stated to be, power that is directly and immediately appropriate to the existence of the specific power granted and not one that has a slight or remote relation to it.
The word "incidental" in the expression "incidental labour" as used in Mechanic 's Lien Statutes allowing liens for work and labour performed in the construction, repairs etc.
of a building etc.
is stated in this Law Lexicon to mean labour directly done for and connected with or actually incorporated in the building or improvement : service indirectly or remotely associated with the construction work is not covered by this expression.
Reference has next been made by the counsel to the Law Dictionary by Ballentine where also the expression "incidental power" is stated in the same terms.
In Stroud 's Judicial Dictionary the meaning of the words "incident" and "incidental" as used in various English statutes have been noticed.
We do not think they can be of much assistance to us.
The decision in Haydon vs Taylor(1) noticed in this book at first sight appeared to us to be of some) relevance, but on going through it, we do not find it to be of much help in construing the statutory provisions with which we are concerned.
Similarly the decision in Frederick Hayes Whymper vs John Jones Harney(2) seems to be of little guidance.
(1) ; (2) 730 On behalf of the respondents our attention has been drawn to a decision of this Court.
in Nagpur Electric Light and Power Co. Ltd. V. Regional Director Employees State Insurance Corporation Etc.(1).
This decision deals with the Employees State Insurance Act and on a comparison of the definition of the word "employee" as contained in section 2(9) of that Act with the definition of the word "worker" in section 2 (1) of the , it is observed That the former definition is wider than the latter.
It is further added that the benefit of the does not extend to field workers working outside the factory whereas the benefit of the Employees State Insurance Act extends inter alia to the em ployees mentioned in section 2 (9) (i) whether working inside the factory or establishment or elsewhere.
Reliance has, however, been Placed on behalf of the respondents on the observations at page 99 of the report where reference is made to the clerks entrusted with the duty of time keeping and it is observed that all these employees are employed in connection with the work of the factory.
A person doing non manual work has been held in this case to be included in the word "employee" within the meaning of section 2 (9) (i) if employed in connection with the work of the factory.
The ratio of this decision which is concerned with the construc tion of different statutory language intended to serve a different object and purpose is of no direct assistance in construing the definition of the word "worker" as used in the .
The respondents ' counsel has then submitted that the previous history of the Act throws helpful light on the legislative intendment and in this connection he has referred to the definition of the word "worker" in the XXV of 1934.
The word "Worker in section 2 (h) of that Act was defined to mean : "a person employed, whether for wages or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work whatsoever incidental to or connected with the manufacturing process or connected with the subject of the manufacturing ,process, but does not include any person solely employed in a clerical capacity in any room or place where no manufacturing process is being carried on.
" It is argued that the deletion of the words conveying exclu sion of persons solely employed in a clerical capacity in a place where no manufacturing process is carried on suggests that the present definition of "worker" is wide enough to take within its fold even those persons who are employed solely in clerical capacity if otherwise they fall within the definition.
The appellant counsel has, on his part, by reference to tile definition in the Act (1) 731 of 1934, argued that the deletion of the word "whatsoever" after " any other kind of work" is indicative of the legislative intention to restrict the scope of "any other kind of work" in the current Act.
The was enacted to consolidate and amend the, law regulating labour in factories.
It is probably true that all legislation in a welfare state is enacted with the object of promoting general welfare; but certain types of enactments are more responsive to some urgent social demands and also have more immediate and visible impact on social vices by operating more directly to achieve social reforms.
The enactments with which we are concerned, in our view, belong to this category and, there .
fore, demand an interpretation liberal enough to achieve the legislative purpose, without doing violence to the language.
The definition of "worker" in the , therefore, does not seem to us to exclude those employees who are entrusted solely with clerical duties, if they otherwise fall within the definition of the word "worker".
Keeping in view the duties and functions of the respondents as found by the learned Additional District Judge, we are unable to find anything legally wrong with the view taken by the High Court that they fall within the definition of the, word "worker".
Deletion of the word "whatsoever" on which the appellant 's counsel has placed reliance does not seem to make much difference because that word was, in our view, redundant.
We have not been persuaded to hold that the High Court was in error in affirming the decision of the learned Additional District Judge.
In the result this appeal fails and is dismissed with costs.
R.K.P.S. Appeal dismissed.

summary:
In an application under section 15 of the the respondents claimed that they were workers within the meaning of section 2(1) of the .
The Additional District Judge found that some of the respondents were time keepers who maintained attendance of the staff.
job card particulars of the various jobs under operation and the time sheets of the staff working on various shops dealing with the production of Railway spare parts and repairs etc.
and that other respondents were head time keepers entrusted with the task of supervising the work of other respondents.
He, therefore, came to the conclusion that the work done by the respondents was "incidental to" or "connected with" the manufacturing process.
The High Court in revision affirmed this order.
On the question whether the respondents fell within the purview of the definition of "worker" in section 2(1) of the .
HELD : (ii) The conclusion of the Additional District Judge on the nature of the work of the respondents being one of fact must be held to be binding on the High Court on revision and also not open to reassessment on the merits in this Court on special leave appeal from the order of the High Court.
(ii) The definition in section 2(1) is fairly wide because it takes within its sweep not only persons employed in manufacturing process but also in cleaning any part of the machinery or premises used for a manufacturing process and goes far beyond the direct connection with the manufacturing process by extending it to other kinds of work which may either be incidental to or connected with not only the manufacturing process itself but also the subject of the manufacturing process.
The definition therefore does not exclude those employees who were entrusted solely with clerical duties, if they otherwise fell within the definition of the word " worker".
All legislation in a welfare state is enacted with the object of promoting general welfare, but certain types of enactments are more responsive to some urgent social demands and also have more immediate and visible impact on social vices by operating more directly to achieve social reforms.
The belongs to this category and, therefore.
demands an interpretation liberal enough to achieve the legislative purpose, without doing violence to the language.
[728 C D; 731 B D]


judgement:
l Appeals Nos. 1302 to 1906 of 1968.
752 Appeals by special leave from the judgment and orders dated September 26, 27 and 29, 1967 of the Mysore High Court in Writ Petitions Nos.
907, 1004, 1005, 1175 and 1245 of 1967.
Jagadish Swarup, Solicitor General, C. R. Somasekharan 'and R. B. Datar for the appellants (in all the appeals).
M. Veerappa and G. Narayana Rao, for respondent No. 1 (in all the appeals).
section section Javali and section P. Nayar, for respondent No. 2 (in all the appeals).
The Judgment of the Court was delivered by Vaidialingam, J.
These five appeals, by special leave, by the City Municipal Council, Mangalore and the Commissioner of the City Municipal Council, are directed against the orders passed by the Mysore High Court in Writ Petitions Nos.
907, 1004, 1005, 1175 and 1245 of 1967, quashing the demand notices issued by the appellants against the first respondent in each of these appeals for payment of property tax for the half year ending September 30, 1966.
As the grounds of attack levelled against the demand notices by the said respondents are common, we will only refer to the averments contained in Writ Petition No. 907 of 1967 out of which Civil Appeal No. 1302 of 1968 arises.
buildings situated in Ward 11 and Ward XX, within Mangalore Municipality in the South Canara District, which originally formed part of the Madras State and which, on reorganisation of the States, became part of the State of Mysore.
The Mysore Municipalities Act, 1964 (Act XXII of 1964) (hereinafter referred to as the Mysore Act) came into force from April 1, 1965 as per the notification, dated September 23, 1965 issued by the State Government.
Certain sections had already come into force.
Till the Mysore Act came into force, the Mangalore Municipality was governed by the Madras District Municipalities Act, 1920 (Act V of 1920) (hereinafter called the Madras Act).
The Madras Act had provided for levy of property tax the procedure to be adopted for the same and as to how the annual value of a building was to be arrived at as well as the percentage at which the property tax was to be levied.
Similarly the Mysore Act had also provided for levy of property tax, prescribing the ascertainment of annual ratable value and also the rate at which the tax was to be levied.
Although the Mysore Act came into force from April 1, 1965 the appellants issued demand notices for property tax under the said Act for the assessment year 1965 66.
In those demand notices, the Municipal Council determined the ratable annual 753 value under section 101 (2) of the Mysore Act and assessed the tax on the basis of that annual ratable value, but at rates under the Madras Act.
The tax was paid as per the demand notices.
But on March 16, 1967 the appellant issued the impugned notices of demand under the Madras Act for payment of property tax for the year 1966 67.
The tax demanded on the basis of the Madras Act was considerably higher than that originally demanded and paid under the Mysore Act for the assessment year 1965 66.
Notwithstanding the protest made by the first respondent, the appellants threatened to collect the tax as per the demand notices and hence the first respondent filed Writ Petition No. 1907 of 1967 challenging the demand notices.
The main grounds of attack against the.
demand notices, as raised in the said Writ Petition were that after the passing of the Mysore Act the appellants had no power to levy property tax under the Madras Act and therefore the demands were illegal.
The demand notices were further attacked on the ground that section 382 of the Mysore Act, which related to the repeal of many Acts including the Madras Act and the saving provisions contained therein did not justify the issue of the demand notices.
The first respondent accordingly prayed for quashing the demand notices issued under the Madras Act.
He had also raised certain contentions regarding the levy of health cess included in the notices; but it is unnecessary to refer to those averments as the High Court has held against the first respondent and that question does not arise in these appeals.
The appellants pleaded that under the Mysore Act property tax, among other things, has been imposed after following the procedure prescribed in sections 95 to 97 therein and the imposition of tax has come into force from April 1, 1967, but for the period in question viz., the year 1966 67 the demands were legal and valid in view of the provisions contained in section 382 of the Mysore Act.
Notwithstanding the repeal of the Madras Act, the provisions contained in section 382 of the Mysore Act clearly saved the right of the appellants to levy property tax under the Madras Act to adopt both the annual value as well as the rate of tax as per the assess ment registers maintained under the said Act.
In particular, the appellants relied upon the second proviso in section 382(1) of the Mysore Act and the third proviso inserted in the said section with retrospective effect, by the Mysore Municipalities (Amendment) Act ', 1966 (Mysore Act XXXIV of 1966).
According to the appellants, as necessarily the imposition of property tax under the Mysore Act, after following the procedure contained therein will take time, the Legislature had made consequential provisions in section 382 with a view to enable the imposition of property tax under the repealed enactments during the interim period.
The High Court has, by and large, accepted the contentions of the first respondent.
According to the High Court, although 754 the higher rate of tax under the Madras Act is preserved by proviso 3 to section 382(1) of the Mysore Act, the provision for the determination of the annual value under section 82(2) of the Madras Act is not saved.
The High Court is further of the view that the second proviso to section 382(1) of the Mysore Act only continues the old impost and the third proviso preserves the old rates and that they do not continue the old annual value.
The net result of the decision of the High Court is that the Municipal Council has to determine the annual ratable value of the building as provided by section 10 1 (2) of the Mysore Act and to assess the property tax at the rate at which it is assessed under the Madras Act.
Finally the High Court quashed the demand notices issued by the appellants.
The learned Solicitor General, appearing for the appellants, urged that the High Court was in error in interpreting the second and third provisos to section 382(1) of the Mysore Act.
it was urged that as the levy of property tax after adopting the procedure indicated in the Mysore Act will take time, the Legislature had, by incorporating the necessary provisions in section 382, particularly the second and third provisos to sub section
(1), preserved the right of the, Municipal Council concerned to adopt not only the annual value but also the rate of property tax payable according to the assessment registers maintained under the Madras Act, till they are superseded by anything done under ' the Mysore Act.
The learned Solicitor General, further urged that the view of the High Court that the annual ratable value has to be determined under the Mysore Act and the computation of the rate 'of tax has to be under the Madras Act, was anomalous and was not warranted by the provisions of the Mysore Act.
On the other hand, Mr. Veerappa, learned counsel appearing for the first respondent in all the appeals, has supported the view taken by the High Court and urged that a proper interpretation had been placed on section 382 of the Mysore Act.
According to the learned counsel, normally, after the coming into force of the Mysore, Act, no assessments could be made under ' the Madras Act, but section 382 of the Mysore Act, repealing the Madras Act, had made certain special provisions the existence of which alone would attract certain actions taken under the Madras Act.
In order to appreciate the contentions, noted above, it is necessary to refer broadly to the scheme of the two Acts relating to the levy of property tax.
We shall first advert to the, Madras Act.
Under section 78(1) power given to the Municipal Council to levy, among other taxes, a property tax.
Under sub section
(3), a resolution of a municipal council determining to levy a tax has to 755 specify the rate at which such tax is to be levied and the date from which it shall be lived.
Section 81(1) provides that it a Council by resolution determines that a property tax shall be levied, such tax shall be levied on all buildings and lands within the municipal limits save those exempted by the statute or by any other law.
Sub section (2) states that the tax shall be levied at such percentages of the annual value or the buildings or lands as may be fixed by the Municipal Council, Subject to section 78.
under this section, we are informed that 25 % has been fixed as the maximum rate.
Sub section
(2) of section 82 provides that the annual value of the lands and buildings shall be deemed to be the gross annual rent at which they may reasonably be, expected to be let from month to month or from year to year less a deduction in the case or buildings, or ten per cent of that portion of such annual rent which is attributable to buildings alone.
it further provides that the sale deduction shall be in lieu or all allowance for repairs or on any other account.
Section 86 provides that the property tax shall be levied every halt year and shall, excepting as otherwise provided in schedule IV, be paid lay the owner within thirty days of the commencement of the half year.
Section 124 provides that the rules and tables embodied in Schedule IV shall be read as part of Chapter VI, dealing with Taxation and Finance.
Schedule IV deals with Taxation and Finance Rules.
Rule 2 provides for the preparation and maintenance of assessment books showing the persons and property liable to taxation under the Act and the assessment books being made available for inspection by the tax payers.
Rule 6 provides for the value of any land or building for purposes of property tax being determined by the executive authority.
Under rule 7, the executive authority has to enter in the assessment books the annual or capital value of all lands and building and the tax payable thereon.
Rule 8(1) states that the assessment books shall be completely revised by the executive authority once in every five years.
Sub rule (2) thereof provides for amending the assessment books at any time between one general revision and another in the manner indicated therein.
A. perusal of the provisions referred to above, shows that under the Madras Act the property tax is levied on the annual value of buildings which is deemed to be the gross annual rental value less a deduction of ten per cent of that portion of annual rent is attributable to the buildings alone.
The Municipal Council has to pass a resolution determining to levy the property tax and that resolution should also specify the rate at which such tax is to be levied as also the date from which it shall be levied and the tax is levied every half year.
The executive authority has to maintain the assessment books containing entries regarding the annual value as well as the tax payable thereon.
The executive authority is under an obligation to completely revise the assessment once in very five years.
L5SupCI 3 756 There is no controversy that the Madras Act was applicable to the City of Mangalore, even after it formed part of the Mysore State on me reorganization of the States.
The Madras Act, as we have mentioned earlier, was repealed by the Mysore Act, which came into force with effect from April 1, 1965.
Coming to the Mysore Act, Chapter VI deals with Municipal Taxation.
section 94 enables a municipal council to levy a tax on buildings or lands or both situated within the municipality, after complying with tile procedure indicated therein and subject to any general or special orders of Government and at rates not exceeding those specified in Schedules I to VII.
The maximum rate has been fixed at 24 % of the annual ratable value.
Section 2(1) defines annual retable value ' as the gross annual rent for which any building or land exclusive of furniture or machinery might reasonable be expected to be let from month to month or year to year.
Section 95 deals with the procedure to be adopted preliminary to imposing a tax.
Section 10 1 (2) provides that the annual ratable value of a building shall be the gross annual rent as defined in cl. (1) of section 2, less a deduction of sixteen and two thirds per cent of such annual rent.
It further states that the said deduction shall be in lieu of all allowances for repairs or on any other account whatsoever.
Section 103 deals with the preparation of an assessment list.
Section 382(1) repeals the various enactments referred to therein, including the Madras Act.
The first proviso, which saves certain matters, does not come into the picture in this case.
The second proviso as well as the third proviso, introduced by the Mysore Municipalities (Amendment) Act, 1966 are relevant for our purpose and they ire as follows "(2) Provided further that subject to the preceding proviso anything done or any action taken (including any appointment or delegation made, tax, fee or cess imposed, notification, order, instrument, or direction issued, rule, regulation, form, bye law or scheme framed, certificate obtained, permit or licence granted or registration effected) under the said laws shall be deemed to have been done or taken under the corresponding provisions of this Act and shall continue to be in force accordingly unless and until superseded by anything done or any action taken under this Act : (3) Provided further that notwithstanding anything contained in the preceding proviso where any tax, duty, fee or cess other than a duty on transfers of immovable properties has been imposed under the said laws at a rate higher than the maximum rate permissible under this Act.
such tax,.
fee or cess may continue to be 757 imposed and collected at such higher rate unless and Until superseded by anything done or any action taken under this Act.
" The third proviso has been introduced with retrospective effect by the Amending Act.
It is not really necessary for us to consider more elaborately the scheme of the Mysore Act because.
even according to the appellants, the procedure indicated therein whatever may be the procedure, about which we express no opinion has not been taken before the issue of the demand notices which were under challenge before the High Court.
On the other hand, the appellants have exclusively relied on the second and third provisos to section 382 (1) of the Act.
The learned Solicitor General has urged that the assesment books under the Madras Act were prepared on April 1, 1964 and, if so, under the second and third provisos to section 382(1) the property tax can be levied and collected as per the provisions of the Madras Act.
In particular, the learned Solicitor General placed reliance upon the provisions of the Madras Act relating to the maintenance of assessment books and the assessment books having to be revised only once in every five years and pointed out that in this case the assessment books having been prepared on April 1, 1964 they will have currency for a period of five years till March 31, 1969.
The second proviso to section 382(1) no doubt saves any tax which had been imposed under the Madras Act.
Similarly, under the third proviso, the Municipal Council will have authority to collect tax even at a rate higher than the maximum rate permissible under the Mysore Act; but the essential requisite for attracting the two provisos is that the tax should have been imposed under the Madras Act, as per the second proviso and tax at a higher rate should have been imposed again under the Madras Act as per the third proviso.
We are not inclined to accept the contention of the learned Solicitor General that by merely preparing the assessment registers under the Madras Act on April 1, 1964 it can be stated that a tax has been imposed under the second proviso or a tax at a higher rate has been imposed under.the third proviso.
We have already referred to the material provisions of the Madras Act relating to the ' levy of property tax.
Those provisions show that the municipal tax is an annual tax leviable for a particular official year and the assessment list on the basis of which the tax is assessed is for such official year.
This was the view expressed by this Court in Municipal Corporation vs Hiralal(1), while interpreting certain provisions of the Madhya Bharat Municipalities Act, 1954.
No doubt the wording in the Madhya Bharat Act in section 76, dealing with assessment list was slightly different but in our opinion the (1) ; 758 principle enunciated in that decision regarding the municipal tax being an annual tax leviable for a particular official year and the assessment list, on the basis or which the tax is assessed having currency for each such official year, is applicable also to the interpretation of the Madras Act.
No resolution passed by the Municipal Council regarding the levy of the property tax and the rate at which it is to be levied, having currency for the year 1966 67, has been brought to our notice.
The learned Solicitor General has drawn our attention to the minutes, dated September 15, 1966 as well as the Council 's resolution No. 1280 dated December 20, 1966 relating to the levy of property tax in the City of Mangalore for the period in question, under the Mysore Act.
Those proceedings will not assist the appellant as the necessary procedure, under the Mysore Act, has not been followed and therefore that resolution cannot have any legal validity, so as to justify the imposition of tax.
Normally, the municipal council will have to prepare a fresh assessment list, every year.
By virtue of section 124 of the Madras Act, the rules and tables embodied in Schedule IV have to be read as part of Chapter VI dealing with Taxation and Finance.
Though, ordinarily, the Municipality would have to prepare a fresh assessment list every year, rule 8 of Schedule IV permits the Municipal Council to continue the same assessment list for the next four succeeding years and to revise it once every five years.
But, in order to enable the Municipal Council to levy and collect a tax, it has to pass a resolution determining to levy a tax, the rate at which such tax has to be levied as also the date from which it shall be levied.
That the tax is an annual tax is also borne out by sub section
(2) of section 82.
If the contention of the learned Solicitor that the assessment list, once prepared, has to be adopted for five years, is accepted, it will result in the annual value on a particular building or house being static for five years, during which a municipal council can go on adopting the assessment list prepared in an earlier year and the owner or occupier of the building being deprived of the.
right to object to the valuation regarding the annual value or the tax assessed thereon.
This will be the result even though the annual value may have decreased for one reason or the other.
It follows that the contention that the preparation of the assessment books amounts to imposing of a tax so as to justify the issue of the demand notice, cannot be accepted.
Having due regard to the second and third provisos to section 382(1) and the other material provisions of the Mysore Act, the position is that a property tax must have been imposed by the Madras Act and even though the rates of such tax were higher than under the Mysore Act, the said higher tax could be collected.
But no such tax having been imposed under the Madras Act, the 759 second and third provisos to section 382(1) do not apply and hence the demands for payment of property tax for the period are not justified.
Though we are not in agreement with some of the reasons given by the High Court for issuing the writ, the conclusion arrived at by the High Court that the second and third provisos to section 382(1) of the Mysore Act do not justify the issue of the demand notices for the period in question, is correct.
The result is that the appeals fail and are dismissed with costs.
There will be only one hearing fee.

summary:
The first respondent was the owner of some buildings within the appellant Municipality.
The appellant was governed by the Madras District Municipalities Act,, 1920, till April 1, 1965, when the Mysore Municipalities Act, 1964 came into force and thereafter by the Mysore Act.
For the year 1966 67 the appellant issued notices of demand for payment of property tax under the Madras Act.
The tax was higher than under the Mysore Act.
The first respondent challenged the levy by a writ petition, and the appellant justified the levy under section 382(1) of the Mysore Act and its provisos.
The High Court quashed the demand notices.
In appeal to this Court, HELD : Under the second and third provisos to section 382(1) of the Mysore Act if a property tax has been imposed by the Madras Act, even though the rate of such tax is higher than that under the Mysore Act, the higher tax could be collected.
The provisions of Madras Act namely sections 78, 81, 82, 124 and r. 8 of 'Schedule IV of the Act, show that the municipal tax is an annual tax leviable for a particular official year and the assessment list on the basis of which the tax is assessed is for such official year.
Though, ordinarily, the Municipality would have to prepare a fresh assessment list every year, r. 8 of Schedule IV of the Madras Act which, by virtue of section 124 has to be read as part of Chapter VI of the Act dealing with Taxation and Finance permits the Municipal Council to continue the same assessment list for the next 4 succeeding years and to revise it once every 5 years.
But, in order to enable the Municipal Council to levy and collect a tax, under section 78 it has to pass a resolution determining to levy a tax, the rate at which such tax has to be levied as also the date from which it shall be levied.
In the present case, no such resolution was passed by the Municipal Council.
Therefore, by merely preparing the assessment registers under the Madras Act on April 1, 1964, which will have currency for a period of 5 years till March 31, 1969, it cannot be said that a tax or that a tax at a higher rate had been imposed.
No such tax having been imposed under the Madras Act, the provisos to section 382(1) of the Mysore Act do not apply and the demands for payment of the property tax were not justified.
[757 E H; 758 D H; 759 A] Municipal Corporation vs Hiralal, ; , followed.