judgement:
ivil Appeal No. 41 of 1979.
(From the Judgment and Order dated 23rd August, 1978 of Allahabad High Court in Writ Petition No, 1483 of 78) WITH Civil Appeal No. 379 of 1980.
From the Judgment and order dated 28th March, 1979 of the Allahabad High Court in civil Misc Writ No. 1287 of 1977 G.L. Saghi, V.A. Bobde & H.K. Puri for the appellant in C.A. No. 41/79.
R.K. Jain for the appellant in C.A. No. 379/80.
K.P. Gupta for the respondents in C.A. No. 41/79.
Shanti Bhushan and R.B. Mehrotra for the respondent in C.A. No. 379/80.
The Judgment of the Court was delivered by FAZAL ALI J.
We would first take up Civil appeal No. 379 of 1980 which is directed against an Order dated March 28, 1979 passed by the Allahabad High Court dismissing the writ petition of the appellant and arises in the following circumstances.
The appellant owns a house bearing No. 113, Amroha Gate, Fruit Market, Moradabad, in a portion of which he had inducted respondent No.3 (Vishwa Nath Kapoor) as a tenant while retaining some portion for himself, when he (appellant) was serving as a Judicial Officer in the State of Uttar Pradesh.
In the year 1968, the appellant retired as a District Judge as a result of which he had to vacate his official residence, which necessitated the present eviction proceedings against respondent No.3.
The application for eviction was filed on 2.1.1973 under s.21(1) (b) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the '1972 Act ') in which the appellant prayed that the portion occupied by respondent No.3 may be released on the ground of personal requirement as after retirement he wanted to occupy the entire house.
The appellant further claimed that due to shortage of accommodation he had to stay with his son elsewhere.
The eviction proceedings were contested by the respondent on the following grounds: (a) that since the appellant was already living with his son there was no particular urgency or personal necessity for him to occupy the rented portion also, 318 (b) that the appellant had in his occupation a part of the house which was retained by him even after inducting him (respondent) as a tenant and which was sufficient for his needs, and (c) that the appellant after keeping his household effects in the portion retained by him had locked up the same and was, therefore, not in actual occupation of the house as required by Explanation (iv) to section 21 (1) (b).
In the same token, it was submitted as a point of law that the essential ingredient of Explanation (iv) to s.21(1) (b) was that the building must have been in occupation of the landlord for residential purposes which alone would be a conclusive proof of personal necessity.
It was also contended as a question of fact that as the appellant landlord was not in actual occupation of the premises, Explanation (iv) would not be attracted in the instant case.
To buttress this argument it was submitted that the landlord never occupied or possessed the premises but had locked up the same and was residing elsewhere.
This plea of the respondent tenant did not find favour with the Prescribed Authority or the High Court.
The dominant question, therefore, turns upon the import and interpretation of Explanation (iv) to s.21(1) (b), particularly the nature and meaning of the word 'occupation ' as used in Explanation (iv).
The crux of the matter, therefore, was as to whether or not the case of the appellant squarely fell within the four corners of Explanation (iv) and whether the word 'occupation ' included actual residence of the landlord even though he may not have been residing there.
We might mention that while the eviction proceedings were pending before the Prescribed Authority the 1972 Act was amended by U.P. Act No.28 of 1976 (for short to be referred to as the '1976 Act ') which came into force with effect from 5th July 1976 and which deleted Explanation (iv).
The Prescribed Authority, relying on Explanation (iv), held that the need of the landlord was fully made out and accordingly passed an order of eviction against the tenant, partly releasing some portion in appellant 's favour.
The appellant then filed an appeal before the District Judge which was heard by an Additional District Judge who accepted the offer of the tenant and modified the Order of the Prescribed Authority by further releasing some other portion in his favour.
The appellant then filed a writ 319 petition before the High Court which upheld the decision of the District Judge and dismissed the writ petition.
Before we approach the question of law raised before us it may be necessary to give a detailed picture of the position of the premises retained by the landlord and that rented out to the tenant.
The house in question is a double storeyed one containing some rooms on the first floor and some on the ground floor which were retained by the landlord at the time of the lease and the rest of the portion was let out to the tenant.
The learned counsel for the appellant contended that in view of the requirements of the landlord he had a real and bona fide need for occupying the entire house and therefore, the entire portion occupied by the tenant should have been released in favour of the appellant.
This argument was countered by Mr. Shanti Bhushan, counsel for the respondent, who put forward the following legal submission: In the first place, he contended that Explanation.
(iv) would not in terms apply to the facts of the present case because on the findings of fact arrived at by the courts below it was not shown that the appellant was in actual occupation of the portion retained by him, which is a prerequisite for the application of Explanation (iv) to s.21 (1) (b).
In this connection, it was submitted that the admitted position being that the application was previously employed as a District Judge and was living elsewhere, he could not be deemed to be in occupation of the portion retained by him.
In order to appreciate this argument, it may be necessary to examine closely the language of Explanation (iv) which may be extracted thus: "(iv) the fact that the building under tenancy is a part of a building, the remaining part thereof is in the occupation of the landlord for residential purposes, shall be conclusive to prove that the building is bona fide required by the landlord.
" The pivotal argument of the counsel for the respondent turns upon the interpretation of the word 'occupation '.
This, however, does not present any difficulty because in a recent decision in the case of Babu Singh Chauhan vs Rajkumari Jain & Ors.(1) this Court while 320 construing a similar term in the same Act observed as follows: "We have gone through the judgment of the High Court in the light of the arguments of the parties and we are inclined to agree with the view taken by the High Court that the mere fact that the lady did not actually reside in the premises which were locked and contained her household effects, it cannot be said that she was not in possession of the premises so as to make section 17 (2) inapplicable.
Possession by a landlord of his property may assume various forms.
A landlord may be serving outside while retaining his possession over a property or a part of the property by either leaving it in charge of a servant or by putting his household effects or things locked up in the premises.
Such an occupation also would be full and complete possession in the eye of law.
" It is true that the court used the word 'possession ' but in Explanation (iv) to s.21(1) (b) the word used is 'occupation ' and not 'possession ' but this Court treated the word 'possession ' as being a synonym of 'occupation '.
In Webster 's Third New International Dictionary the word 'occupation ' has been defined at page 1560 thus: "Occupation to take possession of, occupy, employ" The Black 's Law Dictionary (5th Edn.) defines 'occupation ' at page 82 thus: "occupation possession; control; tenure; use." In Corpus Juris Secundum (vol.67) at page 74 'occupation ' has been mentioned thus: "The word may be employed as referring to the act or process of occupying, the state of being occupied, occupancy, or tenure." This Court in the observations, extracted above, has clearly pointed out that 'possession ' or 'occupation ' may take various forms and it was expressly held that even keeping the household effects by the owner is an act of occupation.
It is, therefore, manifestly clear that even if a landlord is serving outside or living with his near relations but makes casual 321 visits to his house and thus retains control over the entire or a portion of the property, he would in law be deemed to be in occupation of the same.
Therefore, we are unable to accept the argument of Mr. Shanti Bhushan that the essential ingredient of Explanation (iv) has not been made out, there being no actual physical occupation by the landlord of the portion retained by him.
Indeed, if the broad argument put forward by the counsel is to be accepted then that would destroy the very concept of constructive or actual possession or occupation.
For, instance, even if a house is not let out to anybody but is locked up, can it be said that the owner who is not living there but has kept his household effects, would not be deemed to be in occupation of the same? The answer must necessarily be in the negative.
It seems to us that the policy of the law was to give a facility to the landlord so as to secure the entire building where he is in occupation of a part of the same and wants to occupy the whole house.
Mr. Shanti Bhushan then argued that Explanation (iv) does not confer any substantive right but merely raises a presumption that if a landlord is in occupation of a part of the premises, his need would be deemed to be bona fide.
We are, however unable to agree with this argument.
We must remember that all the Rent Control Acts try to deprive and curtail the legal right of an owner to his property and have put constraints and restraints on his right by giving substantial protection to the tenants in public interest, otherwise if the Rent Acts were to be abolished or were not there, the landlord could get a tenant evicted only by a notice after expiry of the tenancy in accordance with the provisions of the Transfer of Property Act.
The words "shall be conclusive to prove" in Explanation (iv) clearly indicate that it is a substantive right which belongs to the landlord and which has been affirmed and recognised if a part of an accommodation is retained by the landlord.
We are unable to agree with Mr. Shanti Bhushan that the words "conclusive to prove that the building is bona fide required by the landlord" constitute a rule of evidence.
In fact, this argument was put forward before us because the learned counsel wanted to submit that in view of the 1976 Amendment Act, deleting Explanation (iv) to s.21(1) (b) of the 1972 Act, it would be deemed to be retrospective and therefore the relief given by Explanation (iv) would disappear.
We cannot agree with this somewhat far fetched submis 322 sion because Explanation (iv) deals not merely with a particular procedure but with the substantive rights of the parties.
The said Explanation has asserted and affirmed the substantive right of a landlord to get a portion of a building vacated where he is in occupation of a part of it.
Such a substantive right cannot be taken away merely by a procedural amendment nor does the language of the amendment introduced by the 1976 Act envisage or contemplate such a position.
Section 14 of the 1976 Act merely recites that Explanations (ii) and (iv) of s.21(1) (b) shall be omitted.
There is nothing to show that the legislature intended to give any retrospective effect to the deletion of Explanation (iv).
In these circumstances, therefore, the right to ejectment having accrued to the appellant under Explanation (iv) was a vested right as an owner and could not be affected by the 1976 amendment unless it was couched in a language which was either expressly or by necessary intendment meant to be operative retrospectively.
Lastly, it was argued by Mr. Shanti Bhushan that the fact remains that the appellant, even after retirement, was not in actual possession of the portion retained by him and was living with his son or other relations most of the time exception casual visits to the premises in dispute.
A further argument was raised in an additional Note supplied by the counsel for the respondent that as the bathroom and the latrine were in occupation of the tenant, the landlord could not possibly have occupied the premises retained by him and could not have lived there in the absence of these facilities.
The High Court rightly rejected these arguments by observing thus: "The last argument was that the view of the Prescribed Authority that since the petitioner did not occupy the portion retained by him and lived with his son and, therefore, his need was not bona fide has no merits in as much as the petitioner did not have either a latrine or a bathroom and that he could not possibly occupy the house in the position in which it had been retained.
There may be some truth in the submission made by the learned counsel for the petitioner.
But, as neither the Prescribed Authority nor the Appellate Authority based their judgment on this feature of the case and they examined the merits of the claim of the respective parties, it is not possible to interfere with the judgments of the courts below." 323 An attempt was made by the parties to come to a settlement but, unfortunately, the efforts failed.
The argument of Mr. Shanti Bhushan that merely because the landlord was living with his son or his relation after retirement and, therefore, was not in occupation of the house cannot be accepted because it was not for the tenant to dictate to the landlord as to how he should use his own premises.
A tenant has got no right nor any business to interfere with the mode or manner in which a landlord may choose to use his property or live therein.
In these circumstances, therefore, we are satisfied that the case of the appellant is clearly covered by the provisions of Explanation (iv) to s.21(1) (b) and a decree for release of the entire premises should have been passed by the District Judge against the respondent.
We, therefore, allow this appeal, set aside the judgments of all the courts below and order release of the entire premises in possession of the respondent to the appellant.
Time is granted to the respondent to vacate the premises on or before 31st December 1984, subject to the usual undertaking to be given and filed by him in the Court within four weeks from today, failing which the grant of time shall stand revoked without further reference to the Bench and the appellant would be entitled to be put in possession forthwith.
Civil Appeal No. 41 of 1979 This appeal was heard alongwith civil appeal No. 379 of 1980 which we have decided by our judgment.
The main point involved in this appeal was as to whether the portion of the premises sought to be vacated by the landlady was one single unit or two separate units.
This Court remanded the matter to the trial court for examining this point and the trial court has returned a finding, basing its decision on the report of the Commissioner appointed for the Purpose, that the entire building constituted one single unit.
It is, therefore, manifest that if the entire building was one unit and the appellant being in occupation of a portion of the same, she is entitled to get release of the other portion also.
In view of our decision in civil appeal No. 379 of 1980, the appeal is allowed and we order release of the entire portion in favour of the appellant.
Time is granted to the respondent to vacate the premises on or before 31st October 1984, subject to the usual undertaking being given and filed within four weeks from today, failing which the grant of time 324 shall stand revoked without further reference to the Bench.
There will be no order as to costs.
Let a certified copy of this judgment be placed on the file of civil appeal No.41 of 1979.
S.R. Appeals allowed.

summary:
In both Civil Appeal No.41 of 1979 and Civil Appeal No. 379 of 1980, the appellants are the unsuccessful house owners to get an eviction order against their tenants from the portions of their respective houses from the court 's below.
In the first case, the questions arose whether the portion of the premises sought to be vacated by the landlady was one single unit or two separate units.
In the second case, the point involved was whether the word " occupation" included actual residence of the landlord even though the may not have been residing there.
Allowing the appeals, by special leave, the Court, ^ HELD: (C.A. No. 41/1979) In view of the Trial Court 's finding basing its decision on the report of the Commissioner appointed for the purpose, that the entire building constituted one single unit, the appellant being in occupation of a portion of the same, she is entitled to get release of the other portion occupied by the tenant.
[323F G] In C.A. No. 379/1980.
The case of the appellant is clearly covered by the provisions of Explanation (iv) to section 21(1)(b) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction), Act 1972.
[323C] 1:2.
The policy of the law was to give a facility to the landlord so to secure the entire building where he is in occupation of a part of the same and wants to occupy the whole house.
[321D] 316 1:3.
In Babu Singh Chauhan vs Rajkumari Jain & Ors.
; , the Supreme Court, while construing the word "occupation" occurring in section 21(1)(b) of the 1972 Act, used the word "possession", treating the word "possession" as synonym of "occupation" and since the word "possession" or "occupation" may take various forms held that even keeping the house hold effects by the owner is an act of occupation.
[319H, 320D G] Therefore, even if a landlord is serving outside or living with his near relations but makes casual visits to his house and thus retains control of over the entire area or a portion of the property, he would in law be deemed to be in occupation of the same.
To accept the contention that Explanation IV required actual physical occupation by the landlord of the portion retained by him would destory the very concept of constructive or actual possession or occupation.
[320H; 321A B] 2:1.
All the Rent Control Acts try to deprive and curtail the right of an owner of his property and have put constraints and restraints on his right by giving substantial protection to the tenants in public interest, otherwise if Rent Acts were to be abolished or were not there, the landlord could get a tenant evicted only by a notice after expiry of the tenancy in accordance with the provisions of the Transfer of Property Act.[321E F] 2:2.
The words "shall be conclusive to prove" in Explanation (iv) clearly indicate that it is a substantive right which belongs to the landlord and which has been affirmed and recognised if a part of an accommodation is retained by the landlord.
The words "conclusive to prove that the building is bona fide required by the landlord" does not constitute a rule of evidence.
[321F G] 2:3.
The right to ejectment having accrued to the appellant under Explanation (iv) was a vested right as an owner and could not be affected by the 1976 amendment unless it was couched in a language which was either expressly or by necessary intendment meant to be operative retrospectively.
Explanation (iv) deals not merely with a particular procedure but with the substantive rights of the parties.
The said Explanation has asserted and affirmed the substantive right of a landlord to get portion of a building vacated where he is in occupation of a part of it.
Such a substantive right cannot be taken away merely by a procedural amendment nor does the language of the amendment introduced the 1976.
Act envisage or contemplate such a position.
Section 14 of the 1976 Act merely recites that Explanation (ii) and (iv) of s.21(1)(b) shall be omitted.
There is nothing to show that the legislature intended to give any retrospective effect to the deletion of Explanation (iv).
[321H, 322A D] 3.
The argument that merely because the landlord was living with his son or his relation after retirement and, therefore, was not in occupation of the house cannot be accepted because it was not for the tenant to dictate to the landlord as to how he should use his own premises.
A tenant to has got no right nor any business to interfere with the mode or manner in which a landlord may choose to use his property or live therein.
[323 A B] 317


judgement:
Civil Appeal Nos.
1685 1686 1971 Appeals by Special leave from the Judgment and Order dated 8.1.1971 & 14.11.1969 of the Punjab and Haryana High Court 374 in S.C. Appeal No. 96 of 1970 & First Appeal No. 59 of 1964.
M.N. Phadke and Harbans Singh for the Appellant.
Harbans Lal, Urmila Kapoor, Kamini Jaiswal, Nishi Puri, Shahsi Kiran and Tehal Singh Mangal for the Respondents.
The Judgment of the Court was delivered by DESAI, J.
Whether a religious and/or charitable institution situated in village Mahal Khurd, Tehsil Barnala of Sangrur District is a Sikh Gurdwara within the meaning of the expression in the Sikh Gurdwaras Act, 1925 ( 'Act ' for short) is the subject matter of controversy between the parties in this appeal by special leave.
About 56 persons residing in village Mahal Khurd and professing Sikh religion made an application to the Government of Punjab on December 23, 1960 requesting the Government to declare the institution more particularly described in the application as a Sikh Gurdwara.
This application was published in the Official Gazette whereupon Mahant Kirpa Ram respondent No. 1 ( 'respondent ' for short) filed objections under Sec. 8 of the Act contending that the institution was not a Sikh Gurdwara and that he was entitled to raise that contention because he was the holder of hereditary office of mahant of the institution.
The application was forwarded under Sec.
14 to the Sikh Gurdwara Tribunal set up under the Act.
Upon rival contentions the Tribunal framed two issues as under: "1.
Is the petitioner a hereditary office holder of the Gurdwara? 2.
Is the Gurdwara in dispute a Sikh Gurdwara?" The Tribunal by its judgment dated January 21,1964 answered Issue No. 1 in favour of the respondent holding that he was a hereditary holder of the office of mahant of the institution.
On Issue No. 2, the Tribunal held that the institution is a Sikh Gurdwara and is governed by the Act.
The respondent preferred F.A.O. No. 59 of 1964 in the High Court of Punjab and Haryana at Chandigrah.
A Division Bench of the High Court held that the institution upset was by Gulabdas for commemorating the memory of his Guru named Jad Guru.
The 375 High Court further held that the land on which the institution was set up with the grant of Muafi had been donated by a Muslim ruler named Rai Kala of Rai Kot in favour of Mahant Gulabdas.
It was also held that the succession to the office of mahant is from Guru to Chela.
After referring to various entries in the land records, it was held that way back in 1861 the institution was not only serving as a Gurdwara for the worship of Ganth Saheb but was also used as a Dera or lodging house for Sadhus or Faqirs of the Udasi Sect and that there was a duality of faiths in the institution.
After taking all the aspects into consideration the High Court concluded that the institution in question was catering to the religious views and beliefs of both the sects amongst the local population and that therefore, the Tribunal was in error in declaring that it was a Sikh Gurdwara which would permit one of the communities to appropriate the institution to its exclusive use and to deprive the other community or sect from the dual use to which the institution has been put ever since it was founded or established.
Accordingly, the High Court allowed the appeal and set aside the declaration made by the Tribunal.
Original applicants moved the High Court for a certificate under article 133(1) (a) and (c) of the Constitution which was numbered ss S.C.A. No. 96 of 1970.
The High Court on receipt of a report as a result of enquiry directed by it, by its order dated January 8, 1971 rejected the application for certificate both under article 133 (1) (a) and (c).
Thereupon the original applicants filed these two appeals by special leave; one against the decision of the High Court reversing the decision of the Tribunal and another against the order of the High Court rejecting the application for certificate.
Mr. M.N. Phadke, learned counsel who appeared for the appellant urged that if on evidence the appellants (original petitioners) are in a position to show that the institution was established for use by Sikhs for the purpose of public worship and was used for such worship by Sikhs, before and at the time of the presentation of the petition under sub section (1) of Sec, 7.
the institution would be a Sikh Gurdwara as contemplated in Sec.
16(2) (iii) of the Act.
Proceeding along it was urged that there is evidence to show and even the High Court has not found to the contrary that the institution was established for use by Sikhs for the purpose of public worship and was used for such worship by Sikhs before and at the time of the presentation of the petition under sub section (1) of Sec.
7 376 and therefore notwithstanding the fact that some other members belonging to some other faith or sect also venerate the institution it would not detract from the character of the institution nor would it be destructive of the character of the institution as Sikh Gurdwara.
16(2) (iii) of the Act provides that 'if the tribunal finds that the gurdwara was established for use by Sikhs for the purpose of public worship and was used for such worship by Sikhs, before and at the time of the presentation of the petition under sub sec.
(1) of Sec. 7, the tribunal shall decide that it should be declared to be a Sikh Gurdwara, and record an order accordingly. ' 'Sikh ' is defined in Sec.
2(9) of the Act to mean 'a person who professes the Sikh religion, or was known to be a Sikh during his lifetime. ' If a dispute arises as to whether any particular person is or is not a Sikh the outcome will depend upon his willingness to subscribe to a declaration as prescribed in the Act.
Amongst Sikhs, there can be Amritdhari Sikhs and Sahjdhari Sikhs.
One can be said to be a Patit if he being a Keshdhari Sikh trims or shaves his beard or keshas or who after taking amrit commits any one or more of the four kurahits.
The first question is: whether it has been satisfactorily established that the institution was set up by Sikhs for the purpose of public worship and was used for such worship by Sikhs.
The Tribunal found that the institution is an old one and no direct oral or documentary evidence regarding the purpose for which it was founded is available.
Reliance was placed on the copies of the revenue records, to show how the institution was described in Government land records.
On appraisal of the entries, it has been concurrently found that the institution was set up by Mahant Gulabdas upon a grant of land made to him.
It appears a Sanad was issued but it was lost when the Mahrattas over ran this part of the country.
The High Court then traced the origin of village Mahal Khurd and recorded a finding that the first settlers came to that area in the beginning of the 18th Century and amongst them were Bir Pal, Garib Dass and Bhoja.
They cleared the forest land and started cultivating the land.
The High Court then examined what area of land can be cultivated with the help of one pair of bullocks.
After asserting the probative value of Kafiat Dehi or Wajah Tasmias, Ext.
P 21, and P 22 the High Court concluded that the muafi i.e. exemption from payment of land revenue had been granted to the institution from the time village had first been founded about 200 years before the records were prepared, but these records.
377 do not help in asserting the purpose for which muafi was granted or the purpose for which the institution was established.
This conclusion was not commented upon and deserves to be accepted as reasonable inference from the evidence.
Mr. Phadke however invited as to examine jamabandi entries and on the strength of them attempted to urge that since remote past the entries describe the institution as gurdwara.
exhibit P 1 is a will dated May 10, 1958 executed by Mahant Rashi Ram by which the respondent was appointed as his chela with a right to succeed to the office of mahant of this institution.
This is a document of recent origin and is not of much assistance.
We may next turn to Ext.
P 2 dated the 25th Baisakh, 1927 corresponding to 1871 A.D.
It is a decision recorded in a muafi enquiry proceeding in respect of land admeasuring 206 Bighas and 16 Biswas then found to be in possession of the institution.
It recites that the land was given to Gulab Dass Faqir by Rai Kalha of Rai Kot real donee being his Guru known as Jad Guru who is the muafidar.
It was also found that entries in Inam register show that the land admeasuring 120 Bighas has been entered in the name of muafidar and that area of land remained muafi to the muafidar with the approval of Rai Nizam Sahib and the remaining land measuring 86 Bighas and 16 Biswas which was in excess of grant should be resumed to the Government after obtaining the approval of the Diwan Saheb.
Two things emerge from Ext.
P 2, that the original muafi grant was made by a Muslim ruler in favour of Mahant Gulab Dass Faquir of Udasi sect who appears to have set up the institution to commemorate the memory of his Guru, Jad Guru.
These earlier entries do not support the claim advanced on behalf of the appellants that the institution was set up by Sikhs for the purpose of public worship.
On the contrary, the institution appears to have been set up by Gulab Dass, a follower of Udasi sect and succession to the office of Mahant is by Guru to Chela.
Reference was next made to Exts.
P 7 and P 8 which appear to be statements of Lambardars and Patwaris in question answer form which show that they heard from their ancestors that the muafi had been granted by Rai Kalha to Baba Gulab Dass by way of Punarth for meeting the expenses of the Dera and Bal Bhog Parshad Granth Sahib.
Relying on these statements it was urged that at the time of recording the statements on April 19, 1872 Granth Sahib was being 378 venerated in the institution and the grant was for Bal Bhog Parsad of Granth Sahib.
There statements suffer from the vice of hearsay evidence in as much as the reference to the Granth Sahib for the first time appears in these statements not based on any personal knowledge but of what they had heard from their ancestors.
P 8 purports to be a statement of the then Mahant Ram Dass Muafidar Faqir Udasi of the year 1873.
It shows that the muafi land was granted by Rai Kalha of Rai Kot to Bawa Gulab Dass his great grand Guru for Bhog of Granth Sahib and for the expenses of the Dera and Faqirs.
Mr. Phadke urged that the Mahant himself has admitted that the grant was for Bal Bhog of Granth Sahib and that this admission concludes the point.
The High Court declined to treat this admission as conclusive on the ground that the admission was made more than a century after the original grant and establishment of the institution and three or four generations had intervened and the Mahant was talking about facts which had happened long before his birth.
These in our opinion, are relevant considerations for not treating the admission as conclusive more so because the earlier entries do not either refer to the institution as Gurdwara or make any mention of the worship of Granth Sahib therein.
Mr. Phadke then invited our attention to exhibit P 18 being on order of Ijlas I Khas Committee of the State of Patiala at the relevant time, according approval to the succession to the office of Mahant of the institution.
In this order dated June 10, 1937 the institution was described as: "Prem Das Mahant of Dera of Udasi Bhekh (Gurdwara Sahib) situate at Mahal Khurd Tehsil Barnala having died on 18.10.1982, the Administrative Committee recommends appointment of Rikhi Ram Chela of Narain Dass as Mahant on the condition set out in the order.
" This order was signed by Her Highness Maharani of Patiala, the then Prime Minister and Revenue Minister amongst others.
Mr. Phadke emphasised that the institution apart from being described as Dera of Udasi Bhekh is also described as Gurdwara Sahib and therefore, it would show that was back in 1937 the State authorities had accepted the institution to be a Gurdwara.
We are not impressed by the submission for the obvious reason that the expression 'Gurdwara ' is in the bracket and primarily the institution is described as Dera of Udasi Bhekh.
Conceding that the use of the expression 379 'Dera ' does not militate against the institution being a Sikh Gurdwara as held by this Court in the decision in Civil Appeal No. 446 of 1962 rendered on November 9, 1984 wherein Sarkar, J. speaking for the Court observed that 'Dera ' in many cases was synonymous with a 'Gurdwara ', a description of the institution as Dera of Udasi Bhekh would certainly have a distinct connotation showing that it was an Udasi institution as recognised by the highest State authorities.
The expression 'Gurdwara Sahib ' in the bracket may at best indicate that the Granth Sahib was also venerated in the institution.
Mr. Phadke never drew our attention to Ext.
P 23 being an extract from the register of mutations relating to Mauza Mahal Khurd dated September, 27 1984.
The entry under the column name of owner ' with description reads: "Shri Guru Granth Sahib situate in the Gurdwara of the village under the management of Rikhi Ram chela Partap Dass Faqir Udasi '.
In fact, these entries appear to have been made in implementation of the order of the Ijlas I Khas and has no independent probative value.
P 24 is a similar extract dated October 1,1959 and does not advance the case of the appellants any further.
Not much reliance was placed on the oral evidence led by the parties and therefore we refrain from referring to it.
On the evidence as herein discussed, the question is: whether the view taken by the High Court that the institution catered to worship by people belonging to two different faiths namely, Udasis and Sikhs is reasonable and proper or calls, for interference? In our opinion, the view of the High Court is reasonable, proper and just on the evidence placed on record.
There is evidence to show that Gulab Dass who founded the institution was an Udasi Faqir.
It is satisfactorily established that the succession to the office of Mahant is from Guru to Chela.
It appears that the expression 'Gurdwara ' qualifying the Dera of Udasis Bhekh in the Government records at a much later date.
It is established that the original grant was by a Muslim ruler in favour of a Faqir and Sadhu of Udasi sect.
On this evidence atleast a negative conclusion would satisfactorily emerge that the appellants have failed to prove that it was an institution set up for use by Sikhs for the purpose of public worship.
It must be conceded that nearly a century after the setting up of the institution, Granth Sahib was venerated and read in this 380 institution.
Does it provide conclusive evidence that the institution was set up and used for public worship by Sikhs? In order to bring the case under Sec.
16(2) (iii) it must not only be established that the institution was established for use by Sikhs for the purpose of public worship but was used for such worship by the Sikhs before and at the time of the presentation of the petition.
The use of the conjunctive `and ' clearly imports that in order to attract Sec.
16(2) (iii), both the conditions must be cumulatively satisfied.
Not was only that it must satisfactorily established that the institution was established for `use ' by Sikhs for the purpose of public worship but was used for such worship by the Sikhs before and at the time of the presentation of the petition.
It was so held in Gurmukh Singh vs
Risaldar Deva Singh & Ors.(1) and it our opinion that represents the correct interpretation of Sec.
16(2) (iii).
In this case there is no evidence to show that the institution was established for use by Sikhs for the purpose of public worship.
It must be conceded that the institution may be established by anyone, may be a Sikh or follower of any other faith, but it must be established for use by Sikhs for the purpose of worship.
One can therefore, ignore the fact that the original grantor was a Muslim ruler Rai Kalha but there is nothing to show that when Gulab Dass Faquir of Udasi sect established the institution, he did it for use by Sikhs for the purpose of public worship.
Later on as the majority of the population of the village was follower of Shikh religion and as Udasis also Venerate Granth Sahib, reading of Granth Sahib may have commenced and therefore, generally speaking people may describe and revenue record may show it to be Gurdwara but that would neither be decisive of the character of the institution nor sufficient to bring the institution within Sec.
16(2)(iii) of the Act.
It is at this stage necessary to point out the distinction between Sikhs and Udasis.
In the past it was attempted to be urged that Udasis are a mere order of Shikh preachers and that there is no difference between two faiths.
In fact it was urged that they are not two separate faiths but two separate interpretations of the same faith.
Repelling this contention way back in Hem Singh & Ors.
vs Basant Das and Anr.(2) It was observed as under : 381 "Indeed the Udasis do not appear to their Lordships to have been a mere order of mendicant preachers among the Sikhs.
Nor can it be held proved that they were merely Sikhs who had lapsed into Hindu practices.
On the contrary, they appear to have a long and independent history as a separate sect or persuasion occupying a position somewhere between the Sikhs and the orthodox Hindus.
The differences in belief as well as in practice between Sikhs and Udasis deserve to be described as serious, extensive and inveterate and some were outwardly striking.
" At another stage it was observed that since the time of Siri Chand, the founder of Udasi sect there came into existence a sect of Udasis who while using the same sacred writings as the Sikhs, kept up much more of the old Hindu practices, followed asceticism, were given to the veneration of Samadhs and tombs and continued the Hindu, rites concerning birth, marriage and Shradh.
It was also observed that the Udasis so far as the matter can be decided by beliefs and practices, are, from the point of view of Sikhs, schismatics who separated in the earliest days of the movement and never merged thereafter.
It would thus appear that Udasis form an independent sect.
They do venerate Sikh scriptures.
There fore, in an institution of Udasis sect, one can visualise reading of Granth Sahib or veneration of Sikh scriptures.
That itself is not decisive of the character of the institution.
On the contrary, if the succession was from Guru to Chela and those Gurus were followers of Udasis faith and the institution was known as Dera of Udasi Bhekh and they followed some of the practices of Hindu traditional religion that would be completely destructive of the character of the institution as Sikh Gurdwara.
In a very recent decision of this Court in Pritam Dass Mahant vs Shiromani Gurdwara Prabhandhak Committee(1) it has been held that mere reading of Granth Sahib or veneration of Sikh scriptures is not decisive of the character of the institution because Udasis are midway between Sikhs on the one hand and Hindus on the other and that the Udasis also venerate Granth Sahib.
Earlier also this view has been consistently taken by this Court as will appear from the decision of this Court in Mahant Dharam Dass etc.
vs The State of Punjab and Ors:(2) 382 "They do not subscribe to idol worship and polytheism, nor do they have any Samadhi in their shrines.
The teaching of Sikhs was against asceticism.
They believe in Guru Granth Sahib, which is a Rosary of sacred poems, exhortations etc.
During the time of the Sikh Gurus, the Gurdwaras were under their direct supervision and control or under their Masends or missionary agents.
After the death of Guru Gobind Singh the Panth is recognised as the corporate representative of the Guru on earth and thereafter they were managed by the Panth through their Granthis and other sewadars who were under direct supervision of the local Sangat or congregation.
During Mahraja Ranjit Singh 's time Sikhism became the religion of the State and large estates and Jagirs were granted to the Gurdwaras apart from the Jagirs which had been earlier granted during the Mughal period.
The position of the Gurdwaras changed during British regime.
The Mahants who were in charge of the Sikh Gurdwaras could either be a Sikh Mahant or Udasi Mahant.
" It thus clearly appears that the appraisal of the evidence by the High Court is correct and unexceptional and weight of the evidence discloses that the institution in question was not shown to have been established for use by Sikhs for the purpose of public worship and therefore one of the material conditions for attracting Sec.
16(2)(iii) of the Act is not established.
It is immaterial that at the time of presentation of the petition it was, along with the follower of Udasi sect used for worship of Granth Sahib by the Sikhs.
We broadly agree with the view taken by the High Court Therefore these appeals fail and are dismissed with costs.
Hearing fee in one set.
N.V.K. Appeals dismissed.

dataset_name: IN-Abs

summary:
A group of persons residing in a village and professing the Sikh religion made an application to the State Government to declare the religious and charitable institution described in the application as a Sikh Gurdwara.
This application was published in the Officer Gazette and respondent No. 1 filed objections under section 8 of the Sikh Gurdwaras Act, 1925 contending that the institution was not a Sikh Gurdwara and that he was entitled to raise the said contention because he was the holder of the hereditary office of mahant of the institution.
The application was forwarded by the State Government under section 14 to the Sikh Gurdwara Tribunal which held that the respondent was the hereditary holder of the office of mahant of the institution and that the institution was a Sikh Gurdwara and was governed by the Act.
The respondent thereupon filed an appeal in the High Court which held that the institution was set up by a mahant for commemorating the memory of his Guru and that the land on which the institution was set up with the grant of Muafi had been donated by a Muslim ruler.
After considering of the entries in the land records, the High Court further held that institution was not only serving as a Gurdwara for the worship of Granth Saheb but was also used as a Dera or lodging house or Sadhus or Faqirs of the Udasi Sect and that there was a duality of faiths in the institution.
The High Court concluded that the institution was catering to the religious views and beliefs of both the sects amongst the local population and that the Tribunal was in error in declaring that the institution was a Sikh Gudrwara which would permit one of the communities to appropriate the institution to its exclusive use and to deprive the other community or sect from the dual use to which the institution has been put ever since it was founded or established.
The High Court, consequently allowed the appeal and set aside the declaration made by the Tribunal.
Dismissing the further appeals to this Court 373 ^ HELD: 1.
The appraisal of the evidence by the High Court is correct and unexceptional.
The evidence discloses that the institution in question was not shown to have been established for use by Sikhs for the purpose of public worship and therefore one of the material conditions for attracting section 16(2)(iii) of the Sikh Gurdwara Act, 1925 was not established.
It is immaterial that at the time of presentation of the petition it was along with the followers of Udasi Sect used for worship of Granth Sahib by the Sikhs.
[382E F] 2.
In order to bring a case under section 16(2)(iii) of the Act it must not only be established that the institution was established by Sikhs for the purpose of public worship but was used for such worship by Sikhs before and at the time of the presentation of the petition.
The use of the conjunctive 'and ' clearly imports that in order to attract Section 16(2)(iii) both the conditions must be cumulatively satisfied.
[380A B] Gurmukh Singh vs Risaldar Deva Singh & Ors., AIR 1937 Lahore 577, allowed.
Udasis form an independent sect : They do venerate Sikh Scriptures.
Therefore, in an institution of Udasis sect, one can visualise reading of Granth Sahib or veneration of Sikh scriptures.
That itself is not decisive of the character of the institution.
If the succession was from Guru to Chela and those Gurus were followers of Udasi faith and the institution was known as Dera of Udasi Bhekh and they followed some of the practices of Hindu traditional religion that would be completely destructive of the character of the institution as Sikh Gurdwara.
[381E F] Mahant Daram Dass etc.
vs The State of Punjab & Ors. ; Hem Singh & Ors.
vs Basant Das and Anr.
, AIR 1936 PC 93 at 100 and Pritam Dass Mahant vs Shiromani Gurdwara Prabhandak Committee, C.A. No. 1983 of 1970 dated 16.2.84 referred to.
In the instant case, there is no evidence to show that the institution was established for use by Sikhs for the purpose of public worship.
Though the institution may be established by anyone may be a Sikh or follower of any other faith, but it must be established for use by Sikhs for the purpose of public worship.
The original grantor was a Muslim ruler but there is nothing to show that when Gulab Das Faqir of Udasi Sect established the institution, he did it for use by Sikhs for the purpose of public worship.
Later on as the majority of the population of the village were followers of Sikh religion and as Udasis also venerate Granth Sahib, reading of Granth Sahib may have commenced and therefore, generally speaking people may describe, and revenue record may show it to be Gurdwara, but that would neither be decisive of the character of the institution nor sufficient to bring the institution within Section 16(2)(iii) of the Act.
[380D F]


judgement:
Civil Appeal No. 1048 of 1979.
From the Judgment and order dated 15.12.
1978 of Patna High Court in Second Appeal No. 215 of 1978 L.N. Sinha, B.P. Singh, Ranjit Kumar and Ravi Prakash for the appellants.
D. Goburdhan for the respondents.
The Judgment of the Court was delivered by BALAKRISHNA ERADI J.
The short question that arises for consideration in this appeal by special leave concerns the true scope and application of Section 80 of the Civil Procedure Code.
The appellants herein are the plaintiffs in a suit instituted in the Munsiff 's Court, Bihar Sharif, seeking the reliefs of declaration of title and delivery of possession with mesne profits in respect of the properties described in the plaint.
The State of Bihar the 1st respondent herein is the main defendant in the suit.
Prior to the institution of the suit, the plaintiffs had issued a notice to the 1st 311 respondent State under section 80 C.P.C. on 18.2.1969 and Exhibit 2 is a copy of the said notice.
However, without waiting for the statutory period of two months, the plaintiffs instituted the suit on 2.4.1969.
In the written statement filed on behalf of the State of Bihar, it was contended, inter alia, that the suit was not maintainable for want of proper notice under Section 80 C.P.C.
This contention was upheld by the trial court which also recorded findings against the plaintiffs on the remaining issues concerning the title to the property and their entitlement to reliefs of declaration and delivery of possession.
The first appellate court which the matter was carried in appeal by the plaintiffs dismissed the appeal on the ground that the plaintiffs ' suit was not maintainable inasmuch as due notice under Section 80 C.P.C. had not been given.
A second appeal preferred by the appellants to the High Court at Patna did not meet with any success and it was dismissed in limine.
Hence this appeal by the plaintiffs.
We are concerned in this case with Section 80 C.P.C. as it stood prior to its amendment, by Act 104 of 1976 (Even under the amended provision, the position remains unaltered insofar as a suit of this nature is concerned).
We shall extract the Section as it stood at the material time: "80.
No suit shall be instituted against the Government (including the Government of the State of Jammu and Kashmir) or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of (a) in the case of a suit against the Central Government, except where it relates to a railway, a Secretary to that Government; (b) in the case of a suit against the Central Government where it relates to a railway, the General Manager of that railway; (c) in the case of a suit against the Government of the State of Jammu and Kashmir, the Secretary to that Government or any other officer authorised by that Government in this behalf; 312 (d) in the case of a suit against any other Government, a Secretary to that Government or the Collector of the district; * * * * * and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and relief which he claims; and plaint shall contain a statement that such notice has been so delivered or left.
" The effect of the Section is clearly to impose a bar against the institution of a suit against the Government or a public officer in respect of any act purported to be done by him in his official capacity until the expiration of two months after notice in writing has been delivered to or left at the office of the Secretary to Government or Collector of the concerned district and in the case of a public officer delivered to him or left at his office, stating the particulars enumerated in the last part of sub section (1) of the Section.
When we examine the scheme of the Section it becomes obvious that the Section has been enacted as a measure of public policy with the object of ensuring that before a suit is instituted against the Government or a public officer, the Government or the officer concerned is afforded an opportunity to scrutinise the claim in respect of which the suit is proposed to be filed and if it be found to be a just claim, to take immediate action and thereby avoid unnecessary litigation and save public time and money by settling the claim without driving the person, who has issued the notice, to institute the suit involving considerable expenditure and delay.
The Government, unlike private parties, is expected to consider the matter covered by the notice in a most objective manner, after obtaining such legal advice as they may think fit, and take a decision in public interest within the period of two months allowed by the Section as to whether the claim is just and reasonable and the contemplated suit should, therefore, be avoided by speedy negotiations and settlement or whether the claim should be resisted by fighting out the suit if and when it is instituted.
There is clearly a public purpose underlying the mandatory provision contained in the Section insisting on the issuance of a notice setting out the particulars of the proposed suit and giving two months time to Government or a public officer before a suit can be insti 313 tuted against them.
The object of the Section is the advancement of justice and the securing of public good by avoidance of unnecessary litigation.
When the language used in the Statute is clear and unambiguous, it is the plain duty of the Court to give effect to it and considerations of hardship will not be a legitimate ground for not faithfully implementing the mandate of the legislature.
The Judicial Committee of the Privy Council had occasion to consider the scope and effect of Section 80 C.P.C. in an almost similar situation in Bhagchand Dagadusa and ors.
vs Secretary of State for India in Council & Ors.(1) In that case, though a notice had been issued by the plaintiffs under Section 80 C.P.C. on 26th June 1922, the suit was instituted before the expiry of the period of two months from the said date.
It was contended before the Privy Council, relying on some early decisions of before the Privy Council, relying on some early decisions of High Court of Bombay, that because one of the reliefs claimed in the suit was the grant of a perpetual injunction and the claim for the said relief would have become infructuous if the plaintiffs were to wait for the statutory period of two months prescribed in Section 80 C.P.C. before they filed the suit, the rigour of the Section should be relaxed by implication of a suitable exception or a qualification in respect of a suit for emergent relief, such as one for injunction.
That contention did not find favour with the Privy Council and it was held that Section 80 is express, explicit and mandatory and it admits no implications or exceptions.
The Judicial Committee observed: "To argue as appellants did, that the plaintiffs had a right urgently calling for a remedy, while section 80 is mere procedure, is fallacious, for section 80 imposes a statutory and unqualified obligation upon the Court." This decision was subsequently followed by the Judicial Committee in Vellayan vs Madras Proince.(7) The dictum laid down by the Judicial Committee in Bhagchand Dagadusa vs Secretary of State for India.(3) was cited with approval and followed by a Bench 314 of five Judges of this Court in Sawai Singhai Nirmal Chand vs Union of India.(1) It must now be regarded as settled law that a suit against the Government or a public officer, to which the requirement of a prior notice under Section 80 C.P.C. is attracted, can not be validly instituted until the expiration of the period of two months next after the notice in writing has been delivered to the authorities concerned in the manner prescribed for in the Section and if filed before the expiry of the said period, the suit has to be dismissed as not maintainable.
On behalf of the appellants, strong reliance was placed on the decision of a learned Single Judge of the High Court of Kerala in Nani Amma Nannini Amma vs State of Kerala.(2) Therein the learned Judge has expressed the view that Sec. 80 is not a provision of public policy and there is nothing in the Section expressly affecting the jurisdiction of the Court to try a suit instituted before the expiry of the period prescribed therein.
The reasons stated by the learned Judge in justification of his taking the said view despite the clear pronouncement of the Judicial Committee of the Privy Council in Bhagchand 's case do not appeal to us as correct or sound.
In the light of the conclusion expressed by us in the foregoing paragraphs about the true scope and effect of Section 80 C.P.C., the aforecited decision of the learned Single Judge of the Kerala High Court cannot be accepted as laying down good law.
In the result, we confirm the judgment and decree of the High Court and dismiss this appeal.
The parties will bear the respective costs in this appeal.

summary:
The appellants plaintiffs instituted a suit for declaration of title and delivery of possession of immovable properties.
The first respondent was the State Government.
Prior to the institution of the suit the plaintiffs, had issued notice to the 1st respondent under section 80 CPC, but without waiting for the statutory period of two months to expire, the plaintiffs instituted the suit.
In the written statement filed on behalf of the State it was contended that the suit was not maintainable for want of proper notice under section 80 CPC.
The Trial court upheld the contention and dismissed the suit.
The order was confirmed by the first appellate court and the second appeal preferred by the appellants to the High Court was dismissed in limine.
Dismissing the appeal to this Court, ^ HELD: 1.
A suit against the Government or a public officer, to which the requirement of a prior notice under section 80 CPC is attracted, cannot be validly instituted until the expiration of the period of two months next after the notice in the writing has been delivered to the authorities concerned in the manner prescribed in the said section and if filed before the expiry of the said period, the suit has to be dismissed as not maintainable.
[314 A B] 2.
The effect of section 80 CPC prior to its amendment by Act 104 of 1976 is clearly to impose a bar against the institution of a suit against the Government or a public officer in respect of any act purported to be done by him in his official capacity until the expiration of two months after notice has been delivered.
There is clearly a public purpose underlying this mandatory provision.
310 3.
The examination of the scheme of the Section reveals that the section has been enacted as a measure of public policy with the object of ensuring that before a suit is instituted against the Government or a public officer, the Government or the officer concerned is afforded an opportunity to scrutinise the claim in respect of which the suit is proposed to be filed and if it be found to be a just claim, to take immediate action and thereby avoid unnecessary litigation and save public time and money by settling the claim without driving the person who issued the notice, to institute the suit involving considerable expenditure and delay.
[312 E] 4.
When the language used in the Statute is clear and unambiguous it is the plain duty of the Court to give effect to it and considerations of hardship will not be a legitimate ground for not faithfully implementing the mandate of the legislature.
[313 B] Bhagchand Dagadusa vs Secretary of State for India, 54 IA 338; Vellayan vs Madras Province; 74 Indian Appeals 223; and Sawai Singhai Nirmal Chand vs Union of India referred to.
Nani Amma Nannini Amma vs State of Kerala AIR 1963 Kerala 114, overruled.


judgement:
Civil Appeal No. 1673 of 1982.
Appeal by Special leave from the Judgment and order dated the 11th January, 1982 of the Punjab and Haryana High Court in Civil Writ Petition No. 26 of 1982.
O.P. Malhotra, and N.S. Das Bahl and Pawan K. Bahl for the Appellant.
Shanti Bhushan and V.P. Chaudhary for the Respondent.
The Judgment of the Court was delivered by VARADARAJAN, J.
This civil appeal by special leave is directed against the judgment delivered by the Division Bench of the Punjab 171 & Haryana High Court on 11.1.1982 dismissing in limine Writ Petition No. 26 of 1982 which had been filed by the appellant Ved Prakash Gupta.
The appellant was an employee of the first respondent M/s. Delton Cable India (P) Ltd. Faridabad, Haryana.
He was given a charge sheet by the management on 5.8.1979 and dismissed from service on 13.9.1979 after having been found guilty of the charge in the domestic enquiry conducted by the Enquiry officer who has been examined as one of the witnesses on the side of the management before the Labour Court at a later stage.
There was a reference of the dispute arising out of the dismissal of the appellant to the Labour Court, Faridabad in Reference No. 143 of 1980 under section 10 (i) (c) of the , hereinafter referred to as the 'Act. ' The Labour Court framed the following issues.
(i) Whether the claimant Shri Ved Prakash Gupta was in the position of a workman under the ? If so, to what effect? (ii) Whether the reference is bad in law in view of the objections raised in the written statement? If so, to what effect? (iii) Whether proper and valid domestic enquiry has been . conducted? If so, to what effect? (iv) Whether the termination of the service of the workman is proper, justified and in order? If not, to what relief is he entitled? Issues 1 and 2 were tried as preliminary issues by the Labour Court.
The Labour Court held on issue No. 1 that the appellant is not a workman within the meaning of the definition of workman contained in section 2(s) of the Act.
Consequently, it was held that the reference is bad in law i n the light of the objections raised by the management in the written statement.
The Labour Court held that there was no need to consider the other two issues and passed an award against the appellant.
It was against that award that the appellant filed the writ petition which was dismissed by the Division Bench of the High Court in limine on 11.1.]982.
This Court granted special leave to appeal against the judgment of the High Court and later directed the Labour Court to try the other issues on the basis that the appellant is a workman as per the Act.
The Labour Court accordingly tried the other two issues and held that though the domestic enquiry 172 was fair and proper the finding of the enquiry officer was perverse.
The Labour Court has observed: "The Enquiry officer should have given findings according to the evidence before him in the enquiry proceeding.
He has neglected M 4 and M 6 while giving the findings in the enquiry.
He also failed to summon the necessary witnesses and rejected the request of the workman for challenging those witnesses.
" The Labour Court found that the punishment of dismissal awarded to the appellant was disproportionate to the gravity of the charge framed against him and that he is entitled to reinstatement with full back wages and continuity of service.
The management filed Writ Position No. 4567 of 1982 in the High Court against the order of the Labour Court holding that the finding of the Enquiry officer was perverse and that the appellant is entitled to reinstatement with full back wages and continuity of service.
The writ petition has been withdrawn to this Court by order dated 9.7.1983 to be heard along with the civil appeal.
This is how the civil appeal and Writ petition have come up before us.
Arguments were advanced before us by Mr. O. P. Malhotra appearing for the appellant and Mr. V. P. Choudhary appearing for management on two points viz. (1) whether the appellant was a workmen at the relevant time and (2) whether his dismissal is valid in law The charge framed against the appellant was as follows: "You were on duty on 31.7.
1979 and 1.8.1979 from 8 a.m. to 4 p.m.
It was reported against you as under: On 31.7.1979 a person from M/s. Gurumukh Dass (building material supplier) came to IMI department with two copies of challan No. 105 dated 15.7.1979 for obtaining the signature of the person concerned in token of having received 2000 bricks.
The copies of the challan were having the gate entry.
Shri Durg Singh on instructions of Mr. S.K. Bagga, junior Engineer, went to the gate for confirming whether the bricks have been received in the factory premises as per the challan.
It was found that the gate entry for the 173 supply of 2000 bricks as per the challan aforesaid had been A cancelled ill the gate register.
You, however, took the challan (both copies) from Shri Durg Singh and cancelled the gate entry from the challan and returned both the copies to the person of M/s. Gurumukh Dass.
That on 1.8.1979 as per the instructions of IMI department one Mr. Hira Lal, the worker of IMI department was sent to the gate office in connection with a challan of a water pump.
As the worker i.e. said Mr. Hira Lal did not come back to IMI department for quite some time Mr. S.K. Bagga, Junior Engineer of IMI department personally went to the gate office.
He (S.K. Bagga) apprised Mr. Deep Chand Senior Security officer of the irresponsible manner in which you delivered the challan to the person of M/s. Gurumukh Dass instead of to IMI department.
When Mr. Deep Chand further verified this fact from you showed ignorance and demanded to know the name of the person who had said so.
When informed that it was Durg Singh you without any .
rhyme and reason or provocation abused Shri Durg Singh in a filthy manner saying (translated in English as I fuck the mother of Durg Singh; bring him).
You were advised that being a responsible employee and that too belonging to the security department you should not abuse any employee but you continued in hot temper and demanded Mr. Durg Singh to be called in the gate office.
When Shri Durg Singh was brought in your presence he once again confirmed and reiterated that you had given the challan to the person of M/s, Gurumukh Dass you lost all your senses and started abusing Shri S.K. Bagga left and right in a filthy, derogatory and abusive manner.
You said (translated in English as you should try hard to your gandh; you cannot do anything wrong to me.
You may go to Ram Kumar or you may go to Vijay Kumar).
The above conduct of yours is gross mis conduct as you have lost the basic courtesy which you were supposed to extend to the employees as a responsible member of the security staff.
The charges if proved will result in total loss of confidence in you.
" The two questions arising for our consideration in the civil appeal and writ petition are: (i) whether the appellant was a workman within the meaning of section 2 (s) of the Act ?; and 174 (ii) whether the termination of the appellant 's service is proper ? On the first question there is evidence of only the appellant examined as WW 1 on his side and of the Personnel Manager examined as MW 1 on the side of the management.
The evidence WW l shows that he was originally recruited as a clerk on a salary of Rs. 160/ per mensem.
It was admitted by MW 1 that at the time of the termination of his service WW 1 was drawing total emoluments of Rs. 581/ per mensem as Charge man security equivalent to a security Inspector as stated in the appellant 's claim statement.
He was working under the Security officer and various other heads of departments of the management.
He has deposed that he used to perform the duty of a Chowkidar whenever one left the place temporarily for taking tea etc.
He has also deposed that he used to accompany accounts branch people as a guard whenever they carried money.
He has stated that he was ordered to fill up leave application forms of other workmen and counter sign them before they were approved by the Security officer.
It has been elicited from him that he has filled up duty registers of workmen and that some small store items like torch cells were issued from the stores under his signatures.
It is seen from his evidence that such store items could be got from the stores under the signatures of even watchmen.
On the other hand, MW 1 has stated in his evidence that Exts.
M l to M 7 are copies of leave applications of workmen containing the appellants signatures and that Exts.
M 50 and M 51 bearing the appellant 's signatures are identity cards issued by the management to workmen.
He has stated that the Security Inspector is provided with a chair and a table and three telephones one of them an intercom, one connected with the factory and the third connected with the exchange of the telephone department and that the appellant was an officer of the first rank in the respondent 's factory.
There is no doubt whatsoever that MW 1 is exaggerating the position which the appellant was holding in the respondent 's factory.
He has admitted that the telephone is provided in the Security Inspector 's room at the gate of the factory premises only to pass on immediate information to other places from the gate of the factory.
The telephones provided in the Security Inspector 's room at the gate of the factory premises are not intended for the Security Inspector to carry on any managerial function.
MW 1 has admitted in his evidence that the Security Inspector could not appoint or dismiss or even take any disciplinary action against any workman of the establishment.
He has stated that the Security Inspector has control 175 Over 5 watchmen, drivers, Rickhaw pullars and sweepers 16 persons in all and is in overall charge of the factory during the first and third shifts which cover the period from 12 mid night to 8 a.m. while the important second shift is from 8 a.m. to 5 p.m.
According to the evidence of MW 1 the Security Inspector allots duties to persons working under him by way of retaining them at the factory 's gate or sending them to watch towers or for moving around the factory or accompanying visitors to the factory.
He could order his subordinates to come for overtime duty, sanction leave for them and recommend for advances and for their promotion.
He could issue identity cards like Exts.
M 50 and M 51 to workmen and draw small items of stores and issue them to the security staff.
He has admitted that the Security Inspector has writing work for only 10 to 30 minutes in the second shift and almost no writing work at all in the first and third shifts and that the writing work consists of entering the names of visitors in the visitors ' register and making entries in respect of in coming and out going materials in the concerned registers.
D section 2(s) of the Act describes a workman and reads: "workman ' means any person (including apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied and for the purpose of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has, led to that dispute, but does not include any such person (i) who is subject to the (45 of 1950), or the Army Act, 1950(46 of 1950), or the (62 of 1957); or (ii) who is employed in the police service or as an officer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity; or 176 (iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
" The respondent management can at best contend that the appellant would fall under section 2(s) (iii).
That has been its attempt before the Labour Court and also in this Court.
The management 's endeavour is to show that the appellant who admittedly was drawing total emoluments of only Rs. 581/ per mensem at the relevant time was employed in a managerial or administrative capacity and was therefore not a workman who could raise a dispute under the Act.
This Court has stated in Llyods Bank Ltd. vs Panna Lal Gupta and others that though it would be legitimate to say that the work done in the audit department is important for the proper and efficient functioning of the bank it would be idle to elevate that work to the status of officers who supervise the work of everybody concerned with the bank 's establishment.
It would be useful to remember in this connection what this Court had stated in Hind Construction and Engineering Company Ltd. vs Their workmen.
It is this: "The tribunal 's Power has been stated in this Court in a large number of cases and it has been ruled that the tribunal can only interfere if the conduct of the employer shows lack of bona fides or victimization of employee or employees or unfair labour practice.
The tribunal may in a strong case interfere with a basic error on a point of fact or a perverse finding but it cannot substitute its own appraisal of the evidence for that of the officer conducting the domestic enquiry though it may interfere where the principles of natural justice or fair play have not been followed or where the enquiry is so perverted in its procedure as to amount to no enquiry at all.
The tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe.
But where the punishment is shockingly disproportionate regard being had to the 177 particular conduct and the past record or is such as no reasonable employer would ever impose in like circumstances, the tribunal may treat the imposition of such punishment as itself showing victimization or unfair labour practice.
" A perusal of the evidence of WW l and MW 1 regarding the nature of the duties performed by the appellant shows that the substantial part of the work of the appellant consisted of looking after the security of the factory and its property by deputing the watchmen working under him to work at the factory gate or sending them to watch towers or around the factory or to accompany visitors to the factory and making entries in the visitors ' register as regards the visitors and in the concerned registers as regards materials entering or going out of the premises of the factory.
It must be noted that MW 1 has admitted in his evidence that there is nothing in writing to show what duties are to be carried out by the appellant.
Placed in such a situation the appellant might have been doing other items of work such as signing identity cards of workmen, issuing some small items of stores like torch cells etc.
to his subordinate watchmen, which can be got from the stores even under the signatures of watchman and filling up application forms of other workmen and counter signing them or recommending advances and loans or for promotion of his subordinates.
It must also be remembered that the evidence of both WW 1 and MW 1 shows that the appellant could never appoint or dismiss any workman or order any enquiry against any workman.
In these circumstances we hold that the substantial duty of the appellant was only that of a Security Inspector at the gate of the factory premises and that it was neither.
managerial nor supervisory in nature in the sense in which those terms are understood in industrial law.
In the light of the evidence p and the legal position referred to above we are of the opinion that the finding of the Labour Court that the appellant is not a workman within the meaning of section 2(s) of the Act is perverse and could not be supported.
On the evidence available on record we hold that the appellant clearly falls within the definition of a workman in section 2(s) of the Act and that the reference of the dispute under s.10 (i) (c) of the Act is valid in law.
The finding of the Labour Court that the enquiry was fair and proper in the light of its own finding that the enquiry officer failed to summon the necessary witnesses and rejected the request of the appellant for challenging the witnesses could not be stated to be correct.
On the merits some witnesses were examined on the side of the management before the Labour Court and they are S.K. 178 Bagga, MW 2, Hira Lal, MW 3, Deep Chand, MW 4 and Laxmi Chand, MW 5 an Accountant of M/s. Gurumukh Dass, MW 2 has deposed about the appellant abusing Durg Singh who according to the appellant was the Secretary of a Labour Union while the appellant and others were trying to canvass membership for a rival trade union.
MW 3 and 4 are stated to have corroborated the evidence of MW 2.
MW 5 is the only independent witness examined on the side of the management.
It is seen from the judgment of the Labour Court relating to the merits of the case that MW 5 who has deposed about the challans Exts.
M 7 and M 8 having been returned to the person who accompanied him from the maintenance department had not supported the management that the appellant abused Durg Singh or any other person within the premises of the factory.
It is also seen from the judgment of the Labour Court that though the appellant had produced before the Enquiry officer 5 sheets of papers with the signatures of about 100 workmen of the factory in support of the statement that the appellant had not abused anyone in the factory during the course of his service and the management had produced Exts.
M 6, a list of 90 persons before the Enquiry officer, he had not called any of those persons to ascertain the truth regarding the alleged abuse of Durg Singh and S.K. Bagga by the appellant.
It is also seen from the judgment of the Labour Court that the appellant has not given a list of the management 's witnesses before the commencement of the domestic enquiry.
In these circumstances, we are of the opinion that the conclusion of the Labour Court that the Enquiry officer had not acted properly in the proceedings and that he had not given full opportunity to the appellant as required by law does not call for any interference.
The charge levelled against the appellant is not a serious one and it is not known how the charge even if proved would result in any much less total loss of confidence of the management in the appellant as the management would have it in the charge.
It was argued in the Labour Court that there was no previous adverse remark against the appellant.
There is nothing record to show that any previous adverse remark against the appellant had been taken into consideration by the management for awarding the extreme penalty of dismissal from service to the appellant even if he had in fact abused in filthy language Durg Singh and S.K. Bagga.
We are therefore of the opinion that the punishment awarded to the appellant is shockingly disproportionate regard being had to the charge framed against him.
We are also of the opinion that no responsible employer would ever impose in like circumstances the punishment of dismissal to the employee and that victimization or unfair labour practice could well be inferred from the conduct of the management in 179 awarding the extreme punishment of dismissal for a flimsy charge of A abuse of some worker or officer of the management by the appellant within the premises of the factory.
We therefore hold that the termination of the appellant 's service is invalid and unsustainable in law, and that he is entitled to reinstatement with full back wages and other benefits including continuity of service.
The appeal is allowed accordingly with costs quantified at Rs. 1,000.
The writ petition is dismissed without costs.
H.S.K. Appeal allowed.

summary:
The appellant, an employee of the respondent, was charged for abusing some fellow worker or officer of the management within the premises of the factory of the respondent.
In domestic enquiry the Enquiry officer found the appellant guilty of the charge.
The management dismissed the appellant.
On a reference being made under section 10(i)(c) of the the Labour Court held on preliminary issue that the reference was bad in law because the appellant was not a workman under section 2(s) of the Act.
The Labour Court 's findings were challenged by the appellant in a writ petition which was dismissed by the High Court in limine On a special leave petition being filed by the appellant from which this appeal arises, this Court directed the Labour Court to try the other issues before it on the basis that the appellant was a workman.
The Labour Court held that the finding of the Inquiry officer was perverse; the punishment of dismissal was disproportionate to the gravity of the charge and the appellant was entitled to reinstatement with full back wages and continuity of service.
The management filed a writ petition in the High Court challenging the findings of the Labour Court.
This writ petition was transferred to this Court.
Allowing the appeal and dismissing the writ petition, ^ HELD: A perusal of the evidence shows that the substantial part of the work of the appellant consisted of looking after the security of the factory and its property by deputing the watchmen working under him to work at the factory gate or sending them to watch towers or around the factory or to accompany visitors to the factory and making entries in the visitors ' register as regards the visitors and in the concerned registers as regards material entering or, going out of the premises of the factory.
The appellant could never appoint or dismiss any workman or order any enquiry against any workman.
In these circumstances 170 it is held that the substantial duty of the appellant was only that of a Security Inspector at the gate of the factory premises and that it was neither managerial nor supervisory in nature in the sense in which those terms are understood in industrial law.
Therefore he clearly falls within the definition of workman under s.2(s) of the Act and the reference of the dispute under section 10(i)(c) of the Act is valid in law.
[177B C, E G] It is seen from the judgment of the Labour Court that though the appellant had produced before the Enquiry officer 5 sheets of papers with the signatures of about 100 workmen of the factory in support of the statement that the appellant had not abused anyone in the factory during the course of his service and the management had produced Exts.
M 6, a list of 90 persons before the Enquiry officer, he had not called any of those persons to ascertain the truth regarding the alleged abuse by the appellant.
It is also seen from the judgment of the Labour Court that the appellant was not given a list of the management 's witnesses before the commencement of the domestic enquiry.
In these circumstances, the conclusion of the Labour Court that the Enquiry officer had not acted properly in the proceedings and that he had not given full opportunity to the appellant as required by law does not call for any interference.
[178C E] The punishment awarded to the appellant is shockingly disproportionate regard being had to the charge framed against him.
No responsible employer would ever impose in like circumstances the punishment of dismissal to the employee, and victimization or unfair labour practice could well be inferred from the conduct of the management in awarding the extreme punishment of dismissal for a flimsy charge of abuse of some worker or officer of the management by the appellant within the premises of the factory.[178G H, 179A] Therefore termination of the appellant 's service is invalid and unsustainable in law.
[179A] Llyods Bank Ltd. vs Panna Lal Gupta & others and Construction and Engineering Company Ltd. vs Their Workmen , referred to.


judgement:
minal Appeal No. 130 of 1955.
I Appeal under Article 134 (1) (C) of the Constitution of India from the judgment and order dated March 11, 1955, of the Allahabad High Court (Lucknow Bench) at Lucknow in Criminal Revision No. 60 of 1954 arising out of the judgment and order dated February 21, 1954, of the Sessions Judge at Gonda in Criminal Appeal No. 292 of 1953.
G.C. Mathur and C. P. Lal, for the appellant.
March 26.
The Judgment of the Court was delivered by IMAM J.
This is an appeal by the State of Uttar Pradesh against the decision of the Allahabad High Court on a certificate granted by that Court that the case was a fit one for appeal to this Court, 771 The undisputed facts are that one Mohammad Yasin was prosecuted under section 379, Indian Penal Code.
He was released on bail.
The respondent along with one Ram Narain stood surety for him, having executed surety bonds under section 499 of the Code of Criminal Procedure, undertaking to produce the accused Yasin before the Court to answer the charge and to forfeit Rs. 500 each to King Emperor Qaisar e Hind as a, penalty if they failed to do so.
Yasin absconded; All attempts to secure his presence before the Court were of no avail.
Consequently notices were issued under section 514 of the Code of Criminal Procedure to the sureties to show cause why their bonds should not be forfeited.
The Magistrate ' after giving the matter his consideration, ordered their bonds to be forfeited to the extent of Rs. 300 each.
The respondent appealed to the Sessions Judge of Gonda who dismissed his appeal.
Dissatisfied with the orders of the Magistrate and the Sessions Judge, the respondent filed a criminal revision in the High I Court and Mulla J. allowed his application and set aside the order of the Magistrate forfeiting the bond executed by him.
At the request of the Government Advocate the learned Judge granted the requisite certificate by virtue of which the present appeal is before us.
The only question for consideration is whether the bond executed by the respondent was one under the Code of Criminal Procedure and therefore capable of being forfeited in accordance with the provisions of section 514, Criminal Procedure Code.
Section 499 of the Code, requires that before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so: to attend until otherwise directed by the police officer or Court, as the case may be.
In Schedule V of the Code of Criminal Procedure various forms are set out and a. 555 of the Code provides that ,subject to the power conferred by section 554 and by 772 article 227 of the Constitution, the forms set forth in that Schedule, with such variation as the circumstances of each case require, may be used for the respective purposes therein mentioned, and if used shall be sufficient.
Form XLII of that Schedule sets forth the contents of a bond to be executed by an accused and his surety.
The bond is in two parts one part to be signed by the accused and the other part to be signed by his surety or sureties.
Both the accused and the sureties in executing such a bond guarantee the attendance of the accused in Court whenever called upon to answer the charge against him and in case of default also bind themselves to forfeit to Government the specified sum of money mentioned therein.
This is what the bond should state since the Adaptation of Laws Order, 1950, dated January 26, 1950. 'Previous to that Order the word Government did not appear in the bond.
By virtue of cl. 4 of the said Order, whenever an expression mentioned in column 1 of the Table thereunder occurred (otherwise than in a title or preamble or in a citation or description of an enactment) in an existing Central or Provincial Law whether an Act, Ordinance or Regulation mentioned in the Schedules to the Order, then unless that expression was by the Order expressly directed to be otherwise adapted or modified, or to stand unmodified, or to be omitted, there shall be substituted therefor the expression set opposite to it in column, 2 of the said Table.
In column 1 of the Table the words " Crown " " Her Majesty " and " His Majesty " appear and against them in column 2 the word 'Government" appears.
The plain reading of this clause is that wherever the words " Crown ", "Her Majesty " or " His Majesty " appear, for them, the word " Government " shall be substituted in the existing Central or Provincial Laws mentioned in the First Schedule to the Order.
The Code of Criminal Procedure is one of the Central Laws mentioned in the said Schedule wherein Schedule V of the Code of Criminal Procedure is mentioned and the Order directs that throughout Schedule V of the Criminal Procedure Code, except where otherwise provided, for the words " Her Majesty The Queen 773 and "His Majesty The King" the word "Government" shall be substituted.
Previous to the Adaptation of Laws Order, 1950, there was the Adaptation of Laws Order, 1948 and the words "Empress of India" appearing in the bond were repealed and in place thereof the, words " Her Majesty the Queen " were substituted.
India attained Dominion status in 1947 and became a Republic in 1950.
The Adaptation of Laws Order, 1948 and that of 1950 were consequential upon the change of status of India into a Dominion and then into a Sovereign Republic.
Since January 26, 1950, therefore, no bond executed in favour of the Empress of India could be said to be a bond executed under the Code of Criminal Procedure.
The bond which the respondent had executed was to forfeit to the King Emperor a certain sum of money if he made default in procuring the attendance of the accused before the court.
He did not execute a bond by which he bound himself to forfeit the said sum either to the Government of the Union of India or that of the State of Uttar Pradesh.
The bond executed: by him in 1953 was a bond unknown to the law of the Republic of India under the Code of Criminal Procedure at the time of its execution.
Section 514 of the Criminal Procedure Code empowers a court to forfeit a bond which has been executed under the provisions of that Code and since the bond executed by the respondent is not one under the Code of Criminal Procedure, resort could not be had to the provisions of section 514 of the Code to forfeit the same.
It was, however, urged on behalf of the State that under cl. 4 of the Adaptation of Laws Order, 1950, the form of the bond stood amended by the substitution of the word "Government" therein in place and stead of the words "Her Majesty The Queen" and the bond should be read accordingly.
The words King Emperor Qaisar e Hind must be deemed as no longer existing in the forfeited bond.
Clause 4 of the Order, however, directs that the word "Government" shall be substituted for the words " Crown ", " Her Majesty " and " His Majesty ".
There is no mention therein of the words King Emperor or Emperor of India, Queen Empress or Empress of India or Qaisar e Hind as being so 774 substituted.
The words King Emperor Qaisar e Hind in the bond executed by the respondent cannot therefore be read, by virtue of cl. 4 of the Order, to mean Government.
There has undoubtedly been some error, carelessness or negligence on the part of those on whom a duty lay to make the necessary changes in the phraseology of the bond set out in Schedule V of the Code of Criminal Procedure to be executed under section 499.
The fact, however, remains that the respondent had not bound himself either to the Government of the Union of India or that of the State of Uttar Pradesh to have his bond forfeited on his failure to produce the accused before the court and he is entitled to say that no order of forfeiture could be passed against him with respect to a bond which was not one under the Code and which was one unknown to the law, as contained in the Code, at the, time of its execution.
The objection raised by the respondent to the order forfeiting the bond executed by him is a substantial one and the said order was made under a, misapprehension that it could be made under section 514 of the Code of Criminal Procedure.
The appeal is accordingly dismissed.
Appeal dismissed.

summary:
In 1953 the respondent executed a surety bond undertaking to produce, the accused before the Magistrate and to forfeit Rs. 500 to King Emperor, Qaisar e Hind as penalty if he failed to do so.
Upon his failure to produce the accused, the Magistrate forfeited the bond to the extent of Rs. 300.
The contention of the respondent was that the bond not being in favour of the Government, could not be forfeited.
Held, that the bond was a bond unknown to the law of the Republic of India under the Code of Criminal Procedure at the time of its execution and could not be forfeited.
The respondent did not execute a bond by which he bound himself to forfeit the said sum either to the Government of the Union of India or that of the State of Uttar Pradesh.
To ' be a valid bond, the undertaking should have been to forfeit to the Government and not to the King Emperor.
The words King Emperor Qaisar e Hind in the bond executed by the respondent could not be read, by virtue Of cl. 4 of the Adaptation of Laws Order, 1950, to mean Government.