judgement:
Civil Appeal No. 911 of 1978.
Appeal by Special Leave from the Judgment and order dated 12 12 1977 of the Allahabad High Court (Lucknow Bench) in Writ Petition No. 1283 of 1976 R.K.Garg, V. J. Francis, Madan Mohan and D.K Garg for the Appellant.
G. N. Dikshit and O.P. Rana for Respondents Nos. 1 and 2.
84 section N Andley, B. P. Maheshwari and Sures Sethi for Respondents 3 and 5.
Yogeshwar Prasad, Mrs. Rani Chhabra and Miss Meera Bali, for Respondent No. 4.
P. C. Bhartari and R. P. Kathuria for the Intervener (B. section Yadav and Ors.) The Judgment of the Court was delivered by SARKARIA,J.
This appeal by special leave is directed against a judgment dated December 12, 1977 of the High Court of Allahabad.
The appellant herein, Shri B. L. Goel, is a District and Sessions Judge and as such a Member of U.P. Higher Judicial Service.
The sanctioned permanent strength of the Higher Judicial Service was 82.
It comprised (i) 37 posts of District and Sessions Judges and (ii) 45 Civil and Sessions Judges, including five posts of leave reserve.
The service includes substantive posts as well as temporary posts.
The appointments to the posts of Civil and Sessions Judges are made from two sources: (a) By promotion from the members of the U.P. Civil Service (Judicial Branch); and (b) By direct recruitment after consultation with the Court (vide Rule 5).
Under Rules 13 and 17 of the U.P. Higher.
Judicial Service 1953 (hereinafter referred to as the 1953 Rules) waiting lists were to be prepared of the persons found fit for promotion or appointment to the higher service.
Rule 19 provided that the Governor shall, on receipt from the Court of the waiting lists prepared under Rules 13 and 17, make appointment to the service on the occurrence of substantive vacancies.
Para 2 of Rule 19 provide d that the Governor could make appointments in temporary or officiating vacancies of the persons who were eligible for appointment by promotion and whose names were borne on the waiting list on force prepared under Rule 13.
Rule 21 fixed the period of probation for direct recruits at two years.
Rule 22 provided that the probation could be extended for a specific period.
On satisfactory completion of his period of probation, a direct recruit was entitled to be confirmed.
No period of probation was fixed in the case of promotees.
Rule 20, which is being impugned, originally, ran as follows: "20. Seniority.
Subject to the provisions of rule 31, seniority in each of the two classes of posts in the Services shall be determined by the date of confirmation in that class of post; 85 Provided that if in any class of the post, two or more persons are confirmed on the same date, their seniority will be determined according to the order in which their confirmation has been notified; Provided further that in the case of direct recruits, their inter se seniority will be fixed in the same order in which their names appear in the list prepared by the Selection Committee under rule 17.
" Rule 23 dealt with confirmation.
It provided: "23.
Confirmation. (1) A probationer shall be confirm ed in his appointment at the end of his period of probation or at the end of the extended period of probation, if the Governor, after consultation with the Court, is satisfied that he is fit for confirmation.
(2) All confirmations under this rule shall be notified in the the official Gazette.
" D The appellant was appointed to the U.P. Civil Service (Judicial Branch) on September 13, 1948 on the basis of a competitive examination held by the U.P. Public Service Commission.
He was posted as Civil Judge in the same service in January 1955.
He was appointed by promotion as an officiating Civil and Sessions Judge in U.P. Higher Judicial Service in July 1 960.
Respondents 3, 4 and 5 are direct recruits.
They were appointed on probation on Civil and Sessions Judges and joined the service on May 31, 1966, May 27, 1966 and June 1, 1966, respectively.
The constitutional validity of the 1953 Rules providing for appointment to U.P. Higher Judicial Service first came up for consideration before this Court in 1966, in Chandra Mohan v state of U.P.(1) wherein it was held that the 1953 Rules providing for recruitment of District Judges particularly rules 5, 8, 13, 17 and 19 of the U.P. Higher Judicial Service Rules 1953, were invalid as they contravened the mandate of Article 233(1), and that consequently, the appointments of persons appointed under those Rules including the appellant and respondents 3, 4 and S to the U.P Higher Judicial Service were unconstitutional and invalid.
The appointments of persons appointed under the 1953 Rules, including the appellant and respondents 3, 4 and S were, however.
validated by the Constitution (Twentieth Amendment) Act, 1964, which inserted Article 233A in the Constitution.
(l) A.T.R. 86 By a notification dated March 31, 1969 the Governor confirmed respondents 3, 4 and 5 as Civil and Sessions Judges with effect from May 31, 1966.
May 27, 1966 and June 1, 1966, respectively.
Again by a Notification dated May 31, 1969 they were confirmed with effect form the same dates.
These Notifications were superseded by Notification dated July 19, 1974.
The dates of confirmation of the respondents, however, remained unchanged.
This notification was cancelled by Government notification dated August 26, 1974.
The Government by its order (G.O. No. 870/7 AI 503) dated June 19, 1971, created by conversion of the existing temporary posts,22 permanent posts of Civil & Sessions Judges with effect from June 1,1969, for absorbing the promoted officers, who had been continuously officiating as Civil & Sessions Judges for more than three years.
Subsequently, by its G.O. 2693/VII A Niaya/503/70.
the Government in partial modification of its G.O., dated June 19, 1971, directed that the creation of 22 permanent posts of Civil & Sessions Judges shall have effect from April 1, 1966.
This Notification shows that all these posts/courts continuously existed on temporary basis from different dates ranging between July 22, 1949 to August 8.1962.
Consequent upon the creation of 22 permanent posts with effect from April 1. 1966, the Governor on March 19, ]975 issued a Notification in supersession of the earlier ones.
Although all the 22 permanent posts created with effect from April 1,1966 according to the Government Notification were meant for absorption of promotees only three of those posts were given to the three direct recruits, respondents 3, 4 and S (S/Shri R. C. Bajpai, Rikheshwari Prasad and Behari Ji Das) who were shown as confirmed with effect from May 31, 1968, May 27, 1968 and June 1, 1968, respectively, the dates on which they completed their two years ' probation.
Against 12 of those posts, 12 promotees were confirmed as District and Sessions Judges with effect from April 1, 1966.
The appellant was not one of those 12 promotees who were so confirmed although he had been continuously officiating as Civil and Sessions Judge since July 1960 and the direct recruits/Respondents 3, 4 and 5 were appointed to that cadre about six years later.
The appellant was however shown, along with others as confirmed with effect from January 1, 1969.
The appellant was appointed as officiating District and Sessions Judge under Government Notification dated January 9, 1974 with the rider that the seniority would be determined later on.
This Notification was cancelled by Notification dated July 17, 1974 whereby the 87 appellant was confirmed on the post of District and Sessions Judge with effect from February 1, 1973.
Respondent 3, 4 and 5 were appointed as District and Sessions Judges, and confirmed as such by a Government Notification dated January 9, 1974.
These Notifications were cancelled and replaced by fresh Notifications from time to time.
The last Notification Issued by the State Government confirming the appellant and respondents 3, 4 and 5 as District and Sessions Judges is of March 19, 1975.
Under this Notification, the appellant was confirmed with effect from February 1,1973 while respondents 3, 4 and 5 were confirmed with effect from July 16, 1972, August 8, 1972 and August 25, 1975, respectively.
On July 22, 1977, the High Court in exercise of its powers under Article 235 of the Constitution, issued a Notification confirming certain officers as District and Sessions Judges in order of seniority from the dates and in the vacancies shown against their names.
the appellant was shown at Serial No. 38 and respondents 3, 4 and 5 at Serial] Nos. 30, 31 and 32, respectively.
While the appellant 's date of confirmation was mentioned as May 18, 1973, respondents 3, 4 and 5 were shown as confirmed with effect from August 25.
The appellant challenged the validity of all the Notifications issued by the State Government relating to his confirmation as also of respondents 3, 4 and 5 on the post of Civil and Sessions Judge as well as on the post of District and Sessions Judge by a writ petition under Article 226 on these grounds: (1) That these orders were discriminatory and therefore, violative of Articles 14 and 16 of the Constitution; and (2) that the Governor had no power to confirm Civil and Session Judges and District Judges, as the same power being a part of 'control ' vested exclusively in the High Court under Article 235, (3) The appellant, also, (by amending his writ petition) impugned the validity of Notification No. 670 dated July 22, 1977 issued by the High Court during the pendency of the writ petition, (4) It was also contended on the authority of this Court in section B. Patwardhan vs State of Maharashtra(1) that the rule requiring determination of the seniority to be governed by the date of confirmation is Unconstitutional as it made seniority dependent upon the fortuitous circumstances of confirmation, and where a cadre consists of both permanent and temporary employees, the date of confirmation cannot be an intelligible criterion for determining seniority as between direct recruits and promotees.
The High Court has however, taken the view that Patwardhan 's (supra) is not attracted to the facts of the instant case because in the case of U.P. Higher Judicial Service, the matter stands concluded (1) ; , 88 by the decision of this Court in Chandra Mohan 's case(l), wherein it was held that it is open to the competent authority to determine the seniority in accordance with rule 20 sans the second proviso, supplemented by any other valid principles or rules.
After an elaborate discussion, the High Court concluded: "The Notification dated 17th July 1974 and Notification dated 19th March, 1975 issued by the Governor confirming the petitioner and the opposite parties 3, 4 and 5, are invalid and ultra vires inasmuch as the power to confirm on the post of District Judge vests in the High Court and not in the Governor.
The Notification of the High Court, dated 22nd July 1977, however, meets the situation and fills up the lacuna to a certain extent.
This Notification has been issued by the High Court in exercise of its powers under Article 235 of the Constitution.
The said Notification of the High Court also mentions the respective dates from which they stood confirmed.
These dates are not founded on proper criteria and it appears that they were not properly fixed.
Hence, that part of the said Notification of the High Court cannot be sustained.
Their dates of confirmation shall have to be redetermined by the High Court.
" In the result, the High Court partly allowed the writ petition and quashed the aforesaid Notifications dated July 17, 1974 and July 22, 1977 so far as they relate to the dates of confirmation of the petitioner and the opposite parties 3, 4 and 5.
A direction was given to the High Court in its administrative side, to redetermine the dates of their confirmation as District & Sessions Judges and their inter se seniority "in accordance with rule 20 sans the second proviso of the U.P. Higher Judicial Service Rules, 1953, supplemented by any other valid principles or rules".
The main contentions raised by Shri R. K. Garg, appearing on be half of the appellant, are (1) Rules 20 and 23 of the 1953 Rules, which make determination of seniority wholly dependent upon the fortuitous circumstance of confirmation offend Articles 14 and 15 of the Constitution.
(It is submitted that earlier in Civil Appeal 1703 of 1969 decided on April 19, 1976, he was obliged to give up the plea because fundamental rights were then under suspension and the broader protection of Article 14 was not available to him).
Reliance has been placed on Patwardhan 's case (ibid).
(2) (a) In the impugned Notifications, dates of confirmations have been fixed arbitrarily in a manner which unduly favours the direct recruits (respondents 3, 4 and 5) and singles out the appellant pro (I) A.I.R. 1976 S.C. 1482.
89 motee for unfavourable treatment, notwithstanding the fact that he was Promoted as Civil and Sessions Judge about 6 years prior to the recruitment of Respondents 3, 4 and 5 to the same cadre, and had also been promoted to the senior grade of the Service as District and Sessions Judge, one year prior to the promotion of these respondents to that grade.
The High Court has not properly construed the observation in this Court 's decision dated April 19, 1976 in C.A. 1703 of 1969, to the effect, that the seniority was to be determined "in accordance with rule 20 sans the second proviso of the U.P. Higher Judicial Service Rules, 1953, supplemented by any other valid principles or rules,".
In that observation the indication was clear that the confirmations were not to be arbitrarily made but in accordance with valid and fair criteria which would ensure that its consequences did not offend Articles 14 and 16.
One of these criteria would be the length of continuous service in the cadre of the Higher Judicial Service.
Indeed, new Rules of 1975 adopt this as the governing criteria for fixation of inter se seniority in the service.
According to Mr. Garg, this criterion, based as it was on a principle of fairplay, could be validly imported into the truncated Rule 20 of 1953 Rules, in accordance with the broad observation of this Court in its decision in C.A. 1703 of 1969.
(b) In any case, the Government had while creating 22 permanent posts with effect from April, 1966, (by conversion of the existing temporary posts held by promotees into permanent ones) as per Notifications (G.O. No. 870/7 AI 503 and G.C).
No. 2093/VII A Niaya/ 503/70) declared it as a matter of policy that all these posts are being created for permanent absorption of promotes who have been continuously working against temporary posts in an officiating capacity for more than three years.
Respondents 3, 4 and S had not even been appointed (on probation) to the service on April 1, 1966.
They entered the service on May 31, 1966, May 21, 1966 and June 1, 1966; while on April 1. 1966, or even on the date of respondents ' entry into service, the appellant had put in about six years ' continuous service as officiating Civil and Sessions Judge.
Thus, both as a matter of declared policy and fair principle, the appellant could not be denied confirmation with effect from April 1, 1966, against one of those 22 posts, and none of the respondents could be confirmed against any of those 22 posts which had been made permanent for the purpose of absorbing promotes who had put in officiating service for a period of more than three years.
Stress has been laid on the fact that apart ll from greater length of service, the appellant has an excellent, unblemished record of service.
In the circumstances, therefore, the confir 7 817 SCI/78 90 mation of the appellant with effect from a date later than those assigned to Respondents 3, 4 and 5 is unfair, arbitrary, and discriminatory.
As against this, Shri Andley, Learned Counsel for Respondents 3, 4 and 5 submits that the Respondents should be deemed to have been appointed to the service in 1964, when they were selected for appointment to the service. by the Select Committee of the High Court and were recommended for appointment to the Government.
The Respondents, it is submitted, would have been appointed to the Service and joined it in 1964, but for the fact that Chander Mohan etc.
in the writ proceeding obtained an interim order from the Court, restraining the Government from giving effect to their appointments, and it was only on the vacation of that "stay" order in 1966, the respondents could join duty, which they did in May and June 1966.
The delay in joining the service being not due to any fault on the part of the Respondents, for the purpose of confirmation and determination of seniority, it would be but fair to take the date of their appointment as the date on which they were selected by the Selection Committee in 1964 for recruitment to the Service.
If no stay order issued by the Court had intervened, the Respondents would have been entitled to be confirmed on completion of their two years ' probation in 1966, Long before a substantive vacancy could become available to the appellant.
It is pointed out while these direct recruits were, as usual, appointed against substantive vacancies, on probation, the appellant and other promotes like him were appointed against temporary posts on officiating basis only, and they (promotees) could claim confirmation only when substantive vacancies/posts became available to them.
It is further argued that the intendment of Rule 8 of the 1953 Rules was that 25 per cent of the vacancies in U.P. Higher Judicial Service should be filled by direct recruitment, and this, according to the learned Counsel implies that confirmation of direct recruits and promotes at any given time should also be made in the ratio of 1: 3 by rotation.
It is urged that when the matter is considered from this angle, the en bloc confirmation of 12 promotes with effect from April l, 1966 followed by the confirmation of the three direct recruits (respondents 3, 4 and 5) with effect from May 30, 1968, May 27, 1968 and June 1968, was neither improper, nor arbitrary.
Learned Counsel further maintains that equities are wholly on the side of respondents 3, 4 and S who are not younger than the appellant, and this should also be taken into account as a factor in their favour.
The last but luke warm contention of Shri Andley is that it is not clearly borne out by the record that the 22 temporary posts, converted 91 into permanent ones with effect from April 1, 1966, were created for the purpose of absorbing the promotees only.
We do not think it necessary to decide the question with regard to the constitutional validity of Rules 20 and 23, because this appeal can be disposed of on the second ground urged by Shri Garg.
Before dealing with that contention, it is necessary to have a clear picture of its factual premises.
There is no dispute that the appellant was promoted as officiating Civil and Sessions Judge in July 1960, while Respondents 3, 4 and 5 joined the service as Civil and Sessions Judges on probation, about six years later in May/June, 1966.
We are unable to accept Shri Andley 's argument that the date of the Respondents ' C entry into service should be assumed as the date in 1964, when the Selection Committee selected them for appointment.
There is no warrant for importing such a fiction.
The stark fact remains that respondents 3, 4 and S joined the service in May/June 1966.
It is further an uncontroverted fact that the appellant was promoted to the senior grade as officiating District and Sessions Judge about one year prior to the respondents ' promotion to that grade.
It is further clear from the record (vide Paragraph 6 (g) of the affidavit of Shri Radhika Raman, Under Secretary to the Government of Uttar Pradesh: Annexure IV A to the Rejoinder Affidavit of Respondents 3 and 5 filed in the High Court as also the copies of the Notifications filed by the appellant in this Court) that the State Government created (by conversion of the existing temporary posts/courts) 22 permanent posts/ courts of Civil and Sessions Judges, under G.O. Nos.
870/7 1 503, dated 19 6 1971 with effect from 1 1 69.
Later on, by another Government order No. 2693/VII/A Nyay 503/70, dated 3 3 1973, in modification of the earlier notification, the creation of the aforesaid 22 permanent posts was given effect from 1 4 1966.
By the impugned Government Notification of March 19, 1975, against 12 of those 22 posts, twelve promoted officers shown at Serial Nos.
24 to 35 were confirmed with effect from 1 4 1966.
Against the next 3 of those 22 posts, respondents 3, 4 and 5 were confirmed with effect from 31 5 68, 27 5 68 and 1 6 68.
Against the remaining seven promoted officers including the appellant, were confirmed with effect from January 1, 1969.
The first proviso to Rule 8 of 1953 Rules which provided for a quota of 25% for direct recruitment and 75% for promotion, was specifically declared void by this Court in Chandra Mohan 's case decided in 1966.
That void Rule, being non existent, was not available for the purposes of confirmation etc.
92 After considering the entire material on record and hearing the Counsel for the parties, including Shri Dikshit appearing for the State, we are unable to appreciate, why the appellant like 12 other promoted officers, was not confirmed with effect from April 1, 1966, when he was continuously working as officiating Civil and Sessions Judge from July, 1960.
In the case of promoted officers, the main criteria to be considered for their confirmation are: (i) Availability of a substantive vacancy/post.
(ii) Suitability for the post.
Here, in the case of the appellant, a substantive post was available to him with effect from April 1, 1966, when respondents 3, 4 and S had not even been appointed, on probation or otherwise, to the service.
By that date, April 1, 1966, he had put in service as officiating Civil and Sessions Judge for a period of 5 years and 9 months approximately.
There is nothing on record to suggest that by or on April 1, 1966, he was not found suitable for confirmation.
Why was he, then, not accorded the same treatment in the matter of fixing the date of his confirmation as had been meted out to twelve promoted officers who were confirmed with effect from April 1, 1966 Shri Dikshit has not been able to satisfy us that in not allocating 1 4 66 to the appellant as the date of his confirmation, the Government were acting according to any intelligible differentia or reasonable principle.
Nor is any a principle justifying a differential treatment to the appellant in the matter of fixing the date of his confirmation, discernible from the impugned Notification dated March 19, 1975, itself.
We are therefore, of opinion that this Government Notification dated March 19, 1975 cannot, as it stands, be sustained and needs reconsideration .
The same comments apply mutatis mutandis to the impugned Notification, dated July 22, 1977, issued by the High Court.
Moreover, once it is found that the Notification dated March 19, 1975 cannot be sustained, the foundation for fixing dates of confirmation and determining relative seniority of District and Sessions Judges will also crumble.
Accordingly we allow this appeal, set aside the impugned Notifications dated March 19, 1975 and July 22, 1977 in so far as they fix the dates of confirmation of the appellant vis a vis Respondents 3, 4 93 and 5, both in the junior and senior grade of the U.P. Higher Judicial Service.
The High Court shall consider the matter afresh and refix and readjust, in the exercise of its powers under Article 235 of the Constitution, the dates of the confirmation of the appellant and the said respondents, at first, in the grade of Civil and Sessions Judges, and then in the grade of District and Sessions Judges, in accordance with law.
There will be no order as to costs in this Court.
P.B.R. Appeal allowed.

summary:
Under the U.P. Higher Judicial Service Rules, 1953 appointments to the posts of Civil and Sessions Judges were made by promotion from the members of the U.P. Civil Service (Judicial Branch) and by direct rccruitment.
Rule 20 of the Rules dealing with seniority provided that seniority in each of the two classes of posts shall be determined by the date of confirmation in that class of post.
Rule 23 provided that a probationer shall be confirmed in his appointment at the end of his period of probation if the Governor was satisfied that he was fit for confirmation.
The appellant who was appointed as a Civil Judge in 1955, was promoted as officiating Civil and Sessions Judge in July, 1960.
Respondents 3 to 5 who were direct recruits to the post of Civil and Sessions Judges joined service In May/June, 1966.
For the purpose of absorbing the promoted officers the Government converted 22 temporary posts into permanent posts of Civil and Sessions Judges with effect from April 1, 1966.
Three out of those posts were given to the three respondents, who were direct recruits, and they were confirmed in the posts with effect from May/June, 1968.
In twelve other posts, twelve promotees were confirmed with effect from April 1, 1966, but the appellant was not so confirmed though he had been continuously officiating as a Civil and Sessions Judge since July, 1960.
He was confirmed as Civil and Sessions Judge with effect from January 1, 1969.
He was eventually confirmed in the post of District and Sessions Judge with effect from February 1, 1973.
The three respondents were later appointed as District and Sessions Judges.
By a Notification dated March 19, 1975, they were confirmed in those posts with effect from July/August, 1972.
The Notification dated July 22, 1977 issued by the High Court, showed the three respondents at serial Nos. 31 and 32 of the list and the appellant at No.38 and the dates of confirmation were shown as August 25, 1972 in respect of three respondents and March 18, 1973 in respect of the appellant.
The High Court allowed the appellant 's writ petition and quashed the Notifications dated March 19, 1975 and July 22, 1971 insofar as they related to the dates of confirmation of the appellant and the respondents.
The High Court on the administrative side was directed to redetermine the dates of their confirmation as District and Sessions Judges and their inter se seniority in accordance with Rule 20. 83 In appeal it was, inter alia, contended on behalf of the appellant that the 22 permanent posts having been created with effect from 1 4 1966 for permanent absorption of promotees who had been officiating prior to that date four a period of more than three years, (Respondents 3 to S who were not even in service on that date, could not be absorbed against any of those vacancies, and the appellant who had put in nearly six years of service in the Cadre on the date when the three respondents were appointed, could not be denied confirmation with effect from April 1, 1966; that apart from greater length of service, the appellant has an excellant, unblemished record of service; and in the circumstances, the confirmation of the appellant with effect from date later than those assigned to Respondents 3, 4 and S is unfair, arbitrary and discriminatory.
Allowing the appeal, ^ HELD: The main criteria to be considered for confirmation of officers officiating in the Higher Judicial Service of the State are: (i) Availability of a substantive vacancy/post.
(ii) Suitability for the post.
[92C] Here, a substantive post of Civil and Sessions Judge was available to the appellant from April 1, 1966, when Respondents 3, 4 and 5 had not even been appointed to the service in any capacity.
By April 1, 1966, the appellant had put in service as officiating Civil and Sessions Judge for a period exceeding 5 years and 9 months.
There is nothing on record to suggest that by or on April 1, 1966, he was not suitable for confirmation as Civil and Sessions Judge, or later, as District and Sessions Judge when a post in that grade became available to him.
In the circumstances, the impugned Notification dated March 19, 1975 issued by the Government, inasmuch as it did not accord to the appellant the same treatment which had been meted out to twelve other promoted officers who were confirmed with effect from April 1, 1966, is not based on any intelligible.
differentia or reasonable principle, and as such, cannot be sustained.
The same comments apply mutatis mutandis to the impugned Notification, dated July 22, 1977, issued by the High Court.
Once it is found that the Notification dated March 19, 1975 cannot be sustained, The foundation for fixing the dates of confirmation and determining relative seniority of District and Sessions Judges will also crumble.
[92D G] The entire matter therefore, requires reconsideration by the High Court in the exercise of its powers under Article 235 of the Constitution.


judgement:
ivil Appeal Nos.
293 295 of 1971.
From the Judgment and Order dated 30 4 1970 of the Madhya Pradesh High Court in M.P. No. 333/68 and 48 and 27 of 1969.
Gulab Gupta and Vineet Kumar for the Appellant.
V. M. Tarkunde, D. N. Misra and O.C.Mathur for the Respondent.
The Judgmnent of the Court was delivered by CHANDRACHUD, C. J.
The respondent, M/s. Perfect Pottery Co. Ltd., was engaged in the manufacture of stoneware pipes and other refractory material at its factory known as Perfect Pottery Works, where it employed about 900 workmen.
For the purposes of its factory, respondent had taken a lease of Poly Pather Clay Mines, wherein about 81 workmen were employed.
On April 24, 1967 respondent issued a notice of closure of the factory and the Mines stating, that the management.
had decided to close down the business on account of financial difficulties and other reasons.
Consequent upon the notice of closure, the appellant herein, the Pottery Mazdoor Panchayat, applied for initiation of conciliation pro 128 ceedings to the Deputy Labour Commissioner, Madhya Pradesh and to the Regional Labour Commissioner (C), Jabalpur.
The reason for initiation of two different conciliation proceedings was that Perfect Pottery Works was an industry to which the Madhya Pradesh Industrial Relations Act, 1960, applied, whereas Poly Pather Clay Mines was an industry governed by the .
We will refer to these two Acts as 'the State Act ' and 'me Central Act ' respectively Conciliation proceedings having failed, the Madhya Pradesh State Government, on June 26, 1967, referred an industrial dispute to the arbitration of the Industrial Court under section 51 of the State Act.
The main questions referred to the Industrial Court were: Whether the proposed closure by the management of the Perfect Pottery Co. Ltd., Jabalpur, of their pottery factory at Jabalpur, with effect from July 1, 1967, is proper and justified, and To what retrenchment compensation are the employees entitled, if it is decided that 'the proposed closure is proper and justified ? The reference was evidently made in order, in the first instance, to avert the closure of the factory.
The Industrial Court was there fore also asked to consider whether any interim relief should be granted by restraining the management from closing down the factory until the reference was finally adjudicated upon.
The Industrial Court by an interim Award dated June 30, 1967, having declined to issue a prohibitory injunction, the appellant filed Writ Petition No. 337 of 67 in the Madhya Pradesh High Court.
That Petition became infructuous after the closure of the factory and was not pressed.
On July 1, 1967 the respondent purported to close down the business.
We say "purported", because whether the business was, truly and in fact, closed or not is a matter on which the parties have joined issue.
The case of the appellant is that respondent had closed the place of business and not the business itself.
After the closure, or shall we say the 'alleged closure ', the Central Government on September 16, 1967, made a reference under section 10(1)(d) of the Central Act to the Central Government Industrial Tribunal cum Labour Court, Jabalpur, on the following question: Whether the employers in relation to the Poly Pather Clay Mines of Perfect Pottery Co. Ltd., Jabalpur, were justified in closing down the said mine and retrenching the 129 (Chandrachud, C. J.) following 81 workers with effect from July 1, 1967.
If not, to what relief are the workmen entitled ? In the two references, one before the Industrial Court and the other before the Central Government Industrial Tribunal cum Labour Court, 'the respondent contended that the respective Tribunals had no jurisdiction to consider the question as regards the propriety or justification of the management 's decision to close down the business on the other question, the respondent did not dispute its liability to pay retrenchment compensation to the workmen but it contended that neither of the two Tribunals had jurisdiction to go into that question.
The appellant 's case before the Tribunals was that the so called closure of the business was merely a camouflage and was in substance and essence, a lock out.
In support of this contention the appellant pleaded that the respondent was making large profits in its business, that no economic or financial reasons could have impelled it to close down its business and the true reason of the supposed closure was to victimize the workers for their Trade Union activities and to defeat the rights which flowed out of the Award given by the Industrial Court, Madhya Pradesh, on March 16, 1966, under which the workers were entitled to receive enhanced dearness allowance The two Tribunals came to contrary conclusion on the principal question as to whether they had jurisdiction to inquire into the propriety of or justification for the closure.
The Central Government Industrial Tribunal cum Labour Court held by its award dated July 3, 1968 that it had no jurisdiction to inquire whether the decision of the management to close down the business was proper and justified but that it was entitled to consider whether, in fact, the business was closed.
On the other hand, the Industrial Court, by its award dated p November 15, 1968 held that it had no jurisdiction either to inquire into the propriety of the closure or, because of the terms of reference, to consider whether there was or was not a real closure.
As against these decisions, three Writ Petitions were filed in the High Court of Madhya Pradesh, one by the appellant and two by the respondent which were disposed of by the High Court by a common judgment dated April 30, 1970.
Dismissing the Writ Petition filed by the appellant and allowing the Writ Petitions filed by the respondent, it has granted to the appellant a certificate to file an appeal to this Court under Article 133(1) (a) of the Constitution.
Two questions were argued before the High Court: Firstly, whether the tribunals had jurisdiction to question the propriety or justification of the closure and secondly, whether they had jurisdiction 130 to go into the question of retrenchment compensation.
The High Court has held on the first question that the jurisdiction of the Tribunal in industrial disputes is limited to the points specifically referred for its adjudication and to matters incidental thereto and that the Tribunal cannot go beyond the terms of the reference made to it.
on the second question the High Court has accepted the respondent 's contention that the question of retrenchment compensation has to be decided under section 33C(2) of the Central Act.
Having heard a closely thought out argument made by Mr. Gupta on behalf of the appellant, we are of the opinion that the High Court is right in its view on the first question.
The very terms of the references show that the point of dispute between the parties was not the fact of the closure of its business by the respondent but the propriety and justification of the respondent 's decision to close down the business.
That is why the references were expressed to say whether the proposed closure of the business was proper and justified.
In other words, by the references, the Tribunals were not called upon by the Government to adjudicate upon the question as to whether there was in fact a closure of business or whether under the pretence of closing the business the workers were locked out by the management.
The references being limited to the narrow question as to whether the closure was proper and justified, the Tribunals by the very terms of the references, had no jurisdiction to go behind the fact of closure and inquire into the question whether the business was in fact closed down by the management.
It is not necessary to rely exclusively on the terms of references for coming to this conclusion.
The history of the dispute and the various documents on record of the references themselves indicate that the dispute between the parties related not to the question as to whether the business, in fact, was closed by the management but whether there was any justification or propriety on the part of the management in deciding to close down the business.
On June 22,1967, the General Secretary of the appellant Union addressed a letter to the Regional Labour Commissioner, Jabalpur, by which the present dispute was raised.
The first paragraph of that letter says: "that the Company had notified is decision to close down the mine with effect from July 1, 1967, that some of the workers were served with notices of retrenchment individually but that retrenchment compensation was not paid by the management which was illegal and violative of the provisions of the ".
This grievance assumes the validity of the decision to close down the business and proceeds to make a claim arising out of a valid closure namely, a claim for retrenchment compensation.
The second paragraph of the 131 (Chandrachud, C. J.) the aforesaid letter begins by saying that "the closure of the mine and the factory is malafide".
The reasons for the closure are then set out in that paragraph which winds up by saying that the Union was of the opinion that the closure was not for business reasons but was a malafide decision taken in order to drive the Union out of existence and to cheat the workers of their lawful dues.
On June 28, 1967, the Managing Director of the respondent sent a reply to the Regional Labour Commissioner dealing with the contentions made by the Union in its letter of June 22,, 1967.
The Managing Director contended that no industrial dispute existed or was apprehended and that the Conciliation officer had, therefore, no jurisdiction under the Act to hold any proceedings.
In the order dated April 30, 1970, of the Industrial Tribunal cum Labour Court, Jabalpur, reference has been made to an affidavit which was filed on behalf of the workers for the purpose of securing an interim award.
We have, looked at the affidavit for ourselves and are in agreement with the view expressed by the Tribunal that there is a clear and unequivocal admission on the part of the workers in that affidavit to the effect that the business was in fact closed by the respondent.
The High Court has also referred to a statement dated June 16, 1967, in which it was stated on behalf of the workmen that since the establishment had already closed down, there was no necessity for making submissions on the point relating to the reduction in the number of employees and revision of the workload.
Learned counsel for the appellant relies upon a judgment of this Court in The Management of Express Newspapers Ltd. vs Workers and Staff Employed under it and others,(1) in which it was observed that if, in fact and in substance, the closure of the business is a lock out and the business has been apparently closed for the purpose of disguising a lock out and a dispute is raised in respect of such a closure it would be an industrial dispute which an Industrial Tribunal is competent to deal with.
There, can, with respect, be no quarrel with this proposition but the true question which arises for consideration is whether in the instant case there was any dispute at all, whether there was in fact a closure or whether the management purported to close the business as a cloak or disguise for what in fact and substance was a lock out.
As we have shown earlier no such dispute was ever raised, the limited dispute which was raised by the appellant being whether the closure of the business was effected for a proper and a justifiable reason.
The appellant 's counsel also drew our attention to the definition of 'closure ' in section 2(8) of the State Act according to which 'closure ' (1) ; , 548 132 to the extent material, means the closing of any place or part of a place of employment or the total or partial suspension of work by an employer or the total or partial refusal by an employer to continue to employ persons employed by him whether such closing, suspension or refusal is or is not in consequence of an industrial dispute.
It may perhaps be that the concept of 'closure ' in the State Act is wider than what is commonly understood by that expression but we do not appreciate how the circumstance that even a partial closure of a business is closure within the meaning of the State Act can assist the appellant in its contention that under the terms of the present references, the Tribunals were entitled to enter into the question as to the fact of the closure.
In this connection the provisions of section 82 of the state Act, to which Mr. Tarkunde appearing on behalf of the respondent drew our attention, are very significant.
That section provides that the State Government may make a reference to a Labour Court or the Industrial Court for a declaration whether any proposed strike, lock out, closure or stoppage will be illegal.
If ever it was the case of the appellant that there was in fact no closure and there was really an illegal lock out, the reference would have been asked for and made not under section 51 under which it was made, but under section 82.
We are, therefore, of the view that the High Court was right in coming to the conclusion that the two Tribunals had no jurisdiction to go behind the references and inquire into the question whether the closure of business, which was in fact effected" was decided upon for reasons which were proper and justifiable.
The propriety of or justification for the closure of a business, in fact and truly effected, cannot raise an industrial dispute as contemplated by the State and Central Acts.
It is unnecessary to consider the second question as regards the payment of retrenchment compensation and we will, therefore, express no opinion as to whether the Tribunals had jurisdiction to go into that question.
Happily, the parties have arrived at a settlement on that question under which, the respondent agrees to fix within a period of six months from today the retrenchment compensation payable to the retrenched workers in accordance with the provisions of section 25FFF of the Central Act, namely, the , without the aid of the proviso to that section.
After the retrenchment compensation is so fixed, a copy of the decision fixing the compensation payable to each of the workers will be sent by the respondent to the appellant Union.
The workers or their legal representatives, as the case may be, will then be entitled to receive the retrenchment compensation from the respondent, which agrees to pay the same to them.
The respondent will be entitled to set off of the amounts of retrenchment compen 133 (Chandrachud, C.J.) sation already paid to the workers against the amounts found due to them under this settlement.
On receiving the retrenchment compensation the workers concerned shall withdraw the applications, if any, filed by them for relief in that behalf.
We would only like to add that the compensation which will be paid to the workers will be without prejudice to their right, if any, to get employment from the respondent in the new business as and when occasion arises.
The appeals are accordingly dismissed but there will be no order as to costs.
N.V.K. Appeals dismissed.

dataset_name: IN-Abs

summary:
The respondent was engaged in the manufacture of stoneware pipes and other refractory material at its factory.
It had taken lease of reference.
The respondent issued a notice of closure of the factory and mines, on account of financial difficulties.
The factory was governed by the Madhya Pradesh Industrial Relations Act, 1960 and the Mines were governed by the .
A dispute having been raised by the workmen, the case relating to the factory was referred under section 51 of the State Act to an Industrial Court, while the dispute relating to the Mines was referred under section 10(1) (d) of the Central Act to the Central Government Industrial Tribunal cum Labour Court.
The main question referred under the State Act was whether the proposed closure was proper and justified, while the reference under the Central Act was whether the employers were justified in closing down the mines.
The Industrial Court held that it had no jurisdiction either to inquire into the propriety of the closure or to consider whether there was or was not a real closure, while the Central Government Industrial Tribunal held that though it had no jurisdiction to inquire whether the management 's decision to close down the business was proper and justified, it was entitled to consider whether, in fact, the business was closed.
In writ petitions filed by both sides, the High Court came to the conclusion that the jurisdiction of the Tribunal in industrial disputes is limited to the points specifically referred for its adjudication and to matters incidental thereto and that the Tribunal cannot go beyond the terms of reference made of.
Dismissing the appeals, ^ HELD: 1.
The references being limited to the narrow question whether the closure was proper and justified, the Tribiunals by the very terms of the references, had no jurisdiction to go behind the fact of closure and inquire into the question whether the business was in fact closed down by the management.
[130 E] 2.
The terms of the references show that the point of dispute between there parties was not the fact of the closure of business but the propriety and justification of the respondents decision to close down the business.
The Tribunals. 127 (Chandrachud, C. J.) were not called upon to adjudicate upon the question as to whether under the pretence of closing the business the workers were locked out by the management.
[130 C D] 3.
The history of the dispute indicated that the dispute between the parties related not to the question as to whether the business, in fact, was closed by the management but whether there was any justification or propriety on the part of the management in deciding to close down the business.
There is a clear and unequivocal admission on the part of the workers before the Tribunals that the business was in fact closed by the respondent.
[130F, 131D] 4.
The concept of 'closure ' as envisaged in section 2(8) of the State Act is perhaps wider than what is commonly understood by that expression but that cannot assist the appellant to contend that under the terms of the references, the Tribunals were entitled to enter into the question as to the fact OF the closure.
If ever it was the case of the appellant that there was in fact no closure and there was really an illegal lock out, the reference would have been asked for and made not under section Sl under which it was made, but under section 82.
1132B. D] 5.
The propriety of or justification for the closure of a business in fact and truly effected, cannot raise an industrial dispute as contemplated by the State and Central Acts.
[132 F] The Management of Express Newspapers Ltd. vs Workers and Staff Employed under it and Others ; , 548 referred to.


judgement:
Civil Appeal No. 364 of 1969.
From the Judgment and order dated 7 8 1968 of the Punjab and Haryana High Court in Civil Writ No. 2199/68.
section N. Anand and R. N. Sachthey for the Appellant.
Arvind Minocha for the Respondent.
The Judgment of the Court was delivered by UNTWALIA, J.
The Chief Commissioner, Union Territory, Chandigarh, has preferred this appeal by certificate from the decision of the High Court of Punjab & Haryana allowing the Writ Petition of the respondent and declaring the amendment of item 30 in Schedule to the Punjab General Sales Tax Act, 1948, hereinafter referred to as the Act, invalid.
The composite and the then existing State of Punjab was re organised by the , Central Act 31 of 1966.
The Union Territory of Chandigarh was carved out as one of the States on and from November 1, 1966.
Under section 6 of the Act no tax was payable on the sale of goods specified in Schedule B.
The State Government could amend this Schedule and at the relevant time the power so conferred on the State Government was in the following terms: "The State Government after giving by notification not less than three months ' notice of its intention so to do may, by like notification add or delete from Schedule and there upon Schedule shall be deemed to be amended accordingly.
" Item 30 of Schedule exempted from sales tax: "All varieties of cotton, woollen or silken textiles, including rayon, artificial silk or nylon, whether manufactured by handloom or powerloom or otherwise, but not including car pets, druggets, woollen durees and cotton floor durees." On August 24, 1966 the State Government of the composite State of Punjab issued a notification giving three months ' notice of its intention to amend Schedule to exclude pure silken fabrics from the list of tax; free goods.
But before the expiry of three months and before 136 any further notification could be issued by the State Government as required by section 6 of the Act, the Union Territory of Chandigarh came into existence on November 1, 1966.
The Government of the Union Territory issued a notification dated January 4, 1968 amending item 30 as intended to be amended by the notification dated August 24,1966 issued by the State Government of the composite State of Punjab.
The respondent filed a writ petition in the High Court challenging this notification as being invalid on the ground that the earlier notification could not be availed of by the new Government for amending Schedule B.
The stand taken on behalf of the appellant was that the earlier notification was a "law in force" within the meaning of section 88 of Central Act 31 of 1966.
The High Court repelled this argument, and in our opinion, rightly.
It is plain on the wordings of section 6 of the Act, extracted above, that a notification merely notifying the intention of the State Government to add or delete from Schedule any article, by itself, had no force of law until and unless on the expiry of the period of three months a like notification was issued amending the Schedule.
The erstwhile State Government of Punjab could not issue a second notification in respect of the Union Territory after it ceased to be a part of the State of Punjab.
Sales tax could not be charged on pure silken fabrics by the said State Government on October 31, 1966 merely by virtue of the notification dated August 24, 1966.
It was, therefore, not a law in force when the composite State was re organised.
Section 88 of the runs as follows: "The provisions of shall not be deemed to have f effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to the State of Punjab shall, until otherwise provided by a competent .
Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day.
" It is clear that there was no law in force on November 1, 1966, which could enable the Union Territory to levy any sales tax on pure silken fabrics.
Mr. section N. Anand endeavoured to attack the judgment of the High Court by taking a new stand in this Court that the notification dated August 24, 1966 could enure to the benefit of and be availed by the Union Territory Government.
But he failed to point out any provision L in Act 31 of 1966 or any other law to substantiate this argument.
No 137 "deeming" provision could be brought to our notice, as there is none, to show that the notification issued by the erstwhile State Government of Punjab could be deemed to be one issued by the new Government of the Union Territory.
For many other purposes there are "deeming" provisions in Central Act 31 of 1966 e.g. sections 59(1), 74(1) and 92.
But no provision is to be found to show that by a legal fiction the first notification of intention issued by the erstwhile State Government could be deemed to be a notification issued by the new Government. 'The argument thus presented by Mr. Anand must be rejected.
Learned counsel for the appellant placed reliance upon the principle of law enunciated in paragraph 12 at page 1749 in the decision of this Court in M/s. Ratan Lal and Co. and another etc., vs The Assessing Authority, Patiala and another, etc.(1).
The principle stated therein is that the new legislature of the new State after the re organisation of the composite State could amend the existing law retrospectively from a date anterior to the date of reorganisation.
Obviously the view expressed in the decision aforesaid is so very different that it cannot be of any help to the appellant in this case.
For the reasons stated above, we dismiss the appeal with costs.
P.B.R. Appeal dismissed.

summary:
Section 6 of the Punjab General Sales Tax Act, 1948 provides that the State Government, after giving by notification, not less than three months ' notice of its intention so to do, may, by like notification add or delete from Schedule and thereupon Schedule shall be deemed to be amended accordingly.
The State Government of the composite State of Punjab issued a notification under section 6 giving its intention to delete from Schedule pure silken fabrics from the list of tax free goods.
Before the issue of any further notification, however, the composite State was reorganised and the Union Territory of Chandigarh was formed.
The Government of the Union Territory of Chandigarh issued a notification amending item 30 of Schedule as intended to be amended by the notification issued by the former government.
In a writ petition filed before the High Court the respondent challenged the notification as invalid on the ground that the earlier notification could not be availed of by the new Government for amending Schedule B.
The appellant claimed that the earlier notification was "law in force".
But the High Court repelled this argumenet It allowed the respondent 's writ Dismissing the appeal, ^ HELD: 1.
There was no "law in force" enabling the newly formed Union 'Territory of Chandigarh to levy any sales tax on pure silken fabrics.
The notification merely notifying the intention of the State Government to add or delete from Schedule any article by itself had no force of law until and unless, on the expiry of the period of three months, a like notification was issued amending the Schedule.
The erstwhile State Government of Punjab could not issue the second notification in respect of the Union Territory after it ceased to be a part of the State of Punjab.
Sales Tax could not be charged on pure silken fabrics by the said State Government merely by virtue of the notification.
It was therefore not a law in force when the composite State was reorganised.
[136D E] 135 3.
No provision is to be found in the Act to show that by a legal fiction the A first notification of intention issued by the erstwhile State Government could be deemed to be a notification issued by the new Government.
[137 B] M/s. Rattan Lal and Co. and another etc.
vs The Assessing Authority, Patiala and another, etc.
AIR 1970 S.C 1742 held inapplicable.


judgement:
N: Criminal Appeals Nos.
86 93 of 1974.
From the Judgment and Order dated 25 7 73 of the Orissa High Court in Criminal Misc.
Case Nos.
131 138 of 1972.
D. Mukerjee and B. Parthasarthy for the Appellant.
D. V. Patel and Vinoo Bhagat for the Respondent in (all the appeals).
The Judgment of the Court was delivered by KAILASAM, J.
These appeals are by State of Orissa by certificate granted by the Orissa High Court against the judgment in Criminal Miscellaneous Cases Nos. 131 to 138 of 1973.
The eight respondents before this Court filed a batch of eight criminal miscellaneous petitions under Section 561 A/ and 562 of the Code of Criminal Procedure for a review of the orders passed by the High Court in Criminal Reference Nos. 13 and 15 to 21 of 1972 on 7 5 73, enhancing their sentence of fine of Rs. 2,000/ to one of rigorous imprisonment for six months.
The facts of the case are briefly as follows: On 1 2 1967, the Vigilance police filed nine criminal cases against certain firms and their partners or proprietors under Section 20(e) of the Forward Contracts (Regulation) Act, 1952 (Act 74 of 1952).
The cases were tried by the Additional District Magistrate (Judicial), Cuttack.
The District Magistrate found the firms and persons, in management of the business, guilty of the offences with which they were charged and inflicted a consolidated fine of Rs. 2,000/ with the direction that, they would suffer simple imprisonment for three months in default of payment of fine.
Against their conviction and sentence, the accused preferred an appeal to the Sessions Judge.
The Sessions Judge, while dismissing the appeals, found that the law required imposition of a minimum sentence of fine of Rs. 1,000/ for each offence and as the sentence passed by the trial court was not in accordance with the law, he referred the matter to the High Court for passing of appropriate sentence.
The accused preferred Revision Petitions against the order of the Sessions Judge.
The Reference made by the Sessions Judge as well as the revision Petitions by the High Court.
The High Court, while dismissing the Revision Petitions preferred by the accused, accepted the Reference by the Sessions Judge and enhanced the sentence so far as the firms are concerned, to a sum of Rs. 3,900/ at the rate of rupees one thousand and three hundred for each offence.
As regards the Managers or the managing partners, the High Court 1117 sentenced them to six months rigorous imprisonment, i.e., two months for each deal The firms paid up their fines but the persons, who were awarded substantive sentence of imprisonment, filed criminal miscellaneous petitions before the High Court for a review of its order.
The High Court accepted the petitions for review and recalled its previous judgment imposing substantive sentence of six months rigorous imprisonment on the petitioners but imposed a fine of Rs. 3,900/ at the rate of Rs. 1,300/ for each of the offence on each of the petitioners who are the respondents in this Court.
Against the decision of the High Court, the State of Orissa applied for a certificate for preferring an appeal to this Court which was granted.
Before the High Court it was urged that the petitioners were not given notice of enhancement in the Reference cases in respect of fines imposed.
It was submitted that the notice was based on the recommendation of the learned Sessions Judge to pass appropriate sentence, but there was no indication in the notice, that the sentence would be enhanced to a substantive term of imprisonment.
The order of Reference by the Sessions Judge provided that, the sentence imposed by the trial court was illegal and therefore while maintaining the convictions, he set aside the consolidated sentence of fine and referred the matter to the High Court for passing appropriate sentences.
The learned Judge who dealt with the References made by the Sessions Judge passed an order in the following terms : "Admit.
Issue notice fixing 20.3.72 for appearance.
The acceptance of the reference may have the effect of enhancement of the sentence.
Let clear notice be given to show cause against enhancement of sentence.
" In pursuance of the order, the High Court sent a notice, directing the respondents to appear and show cause as to why the sentences, inflicted on them, should not be enhanced.
The submission, that was made on behalf of the respondents, was that, neither the parties nor the lawyers ever took it, that the notices were comprehensive notices, which would include enhancement of sentence by way of converting the fine into imprisonment.
The High Court accepted the plea on behalf of the respondent that the Criminal References read with the revisions would establish that the petitioners merely were given notice to show cause why the sentence of fine should not be regularised by way of enhancement of fine and that the notices ruled out enhancement by way of imprisonment since in this setting the notices were specifically in respect of fine and therefore imposition of sentence of imprisonment.
1118 was without jurisdiction.
We do not find any basis for the conclusion arrived at by the High Court.
The notice, under Section 439 (2) of the Criminal Procedure Code requires that no order, under Section 439, shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence, and sub section (6) states that "notwithstanding anything contained in this section, any convicted person, to whom an opportunity has been given under sub section (2) of showing cause why his sentence should not be enhanced, shall, in showing cause, be entitled also to show cause against his conviction.
The order of the learned Judge by whom the reference was received and the notice issued by the High Court clearly show that, the respondents were asked to show cause why their sentence should not be enhanced.
The view, taken by the High Court, that notice was only to show cause why the sentence should not be regularised by enhancement of the fine and not to a term of imprisonment is not borne out by the record.
Mr. Mukherjee, learned counsel appearing for the State of Orissa submitted that, apart from the merits, the High Court had no jurisdiction to review its own judgment, and as such, the order of the High Court passed in review will have to be set aside as being without jurisdiction.
On behalf of the respondent, Mr. D. J. Patel, submitted that, so far as the High Court is concerned, it has ample jurisdiction under Section 561 (A) and other provisions of the Code to review its own judgment.
Mr. Patel further submitted that Section 369 of the Criminal Procedure Code is not applicable to judgments on appeal passed by the High Court, much less to judgments of the High Court passed in exercise of its criminal jurisdiction under Section 439.
To support this contention, the learned counsel submitted that Chapter XXVI refers only to judgments of the trial court and cannot be made applicable to appellate judgments.
We referred to Section 424 which provides that, the rules, contained in Chapter XXVI as to the judgement of criminal court of original jurisdiction, shall apply, so far as may be applicable to the judgment to any appellate court other than the High Court.
The plea is that if Section 369 could be understood as being applicable to appellate judgments of the High Court also, there is no need for providing separately for the applicability of Chapter XXVI to the judgments of appellate courts other than the High Courts.
Reliance was placed on Section 430 for the submission that the finality provided for judgments, orders passed by the appellate court would also indicate that, Section 369 is not intended to apply to judgments of the appellate courts and to the High Court in appeals and in revisions.
In order to appreciate the contention of the parties the relevant sections may be set out.
1119 Section 369 as enacted in 1898, provided that "No Court other than a High Court, when it has signed its judgment, shall alter or review the same, except as provided in Section 395 and 484 or to correct a clerical error.
Despite the express exclusion of the High Courts from the operation of this provision, it was held that the High Court had no implied power to alter or review their own judgments whether under Section 369 or under Section 439 or otherwise.
It was accordingly proposed in 1921 that the words "other than a High Court" should be omitted to make it clear that Section 369 conferred no such power on the High Courts, as it was noticed that one or two other sections of the Code besides 395 and 484 and clause 26 of the Letters Patent of the High Courts empowered the High Courts to revise their judgments.
Hence the Section was redrafted.
Section 369 of the Code of Criminal Procedure 1898 reads as follows : "Save as otherwise provided by this Code or by any other law for the time being in force or, in the case of a High Court, by the Letters Patent or other instrument constitute such High Court, no court, when it has signed its judgment shall alter or review the same, except to correct a clerical error".
Under the Code of Criminal Procedure (Act 2 of 1974) the new Section 362 provides "Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error".
The words "or in the case of a High Court, by the Letters Patent or other instrument constituting such High Court" which were found in the corresponding Section 369 of the old Code have been omitted in the present section.
Hence an alteration or review by a High Court would be permissible as in the case of other Courts, where provision therefore is made in this Code or by any other law for the time being in force.
A reading of Section 369 discloses that the section prohibits all courts when it has signed its judgment to alter review the same except to correct a clerical error.
While, regarding other courts, the prohibitions subject to any provision in the Code of. . or any provision of any other law in force, in the case of the High Court it is provided that the prohibition will be subject to the Letters Patent or other instrument constituting such High Court.
Thus so far as the High Court is concerned, the prohibition against alteration and the 1120 review of the judgment will be subject to the Letters Patent or other instrument constituting such High Court.
The Letters Patent of the High Courts of Bombay, Calcutta and Madras provide that the High Courts will have original criminal jurisdiction as well as the appellate criminal jurisdiction as provided by clauses 22 to 24.
Clause 26 provides that such point or points of law reserved under clause 25 or on its being certified by the Advocate General that there is an error and that the points should be further considered, the High Court shall have full power to review the case.
No other provision is found in the Letters Patent enabling the High Court to review its own judgment.
No other instrument, relating to the power to review, in the constitution of the High Court, was brought to our notice.
Giving the plain meaning to Section 369, it is clear that no court, subject to exceptions made in the section, shall alter or review its judgment.
Two other sections were relied on by the defence as providing an exception to the rule laid down in Section 369.
They are Sections 424 and 430 of Code of Criminal Procedure.
Section 424 runs as follows: "424.
The rules contained in Chapter XXVI as to the judgment of a Criminal Court of original jurisdiction shall apply, so far as may be practicable, to the judgment of any appellate Court other than a High Court: Provided that unless the Appellate Court otherwise directs, the accused shall not be brought up, or required to attend, to hear judgment delivered".
The first part of Section 424 provides that the rules, contained in Chapter XXVI as to the judgment of a Criminal Court of original jurisdiction, shall apply, so far as may be practicable, to the judgment of any Appellate Court other than a High Court.
Chapter XXVI relates to the judgment.
Section 366 is the first section in the Chapter.
It prescribes the mode of delivering judgment, i.e. it shall be delivered in the open court and in the language of the court.
Sub Section (2) provides that the accused shall be required to attend, to hear judgment delivered.
Section 367 prescribes the language and contents of the judgment and provides that the judgment may be in the alternative.
When read with Section 424, it is seen that Sections 366, 367 and 368, which relate to the judgment of a criminal court of original jurisdiction, are made applicable, as far as may be to the judgment of the appellate court other than the High Court.
The effect of Section 424 Crl.
P.C. would be that the judgment of the appellate court should, as far as applicable, be in accordance with the requirements of Sections 366, 367 and 368 of the Code.
This rule is not made applicable 1121 to a High Court hearing an appeal.
The proviso to Section 424 is significant, in that, it states that unless the appellate court otherwise directs, the accused, shall not be brought up or required to attend to hear the judgment delivered.
This proviso makes an exception to the requirement, that is found in Section 366(2), which requires that the accused should attend when the judgment is delivered.
Section 367 prescribes the language of the judgment and requires the points for determination, the decision thereon, the reasons for the decision that it shall be dated and signed in open court.
While Section 369 prohibits altering or reviewing the judgment after a court has signed its judgment, section 424 requires that the judgment of the appellate court shall, as far as applicable, be in accordance with Sections 366, 367 and 368 of the Criminal Procedure Code, which deals with the trial court.
Sections 369 and 424 do not restrict the prohibition under Section 369 to the trial court alone.
The purpose of Section 424 is to prescribe mode of delivering of judgment, the language and the contents of the judgment while Section 369 is general in its application and prohibits all courts from altering or reviewing its judgment when once it has signed it.
The second section, that is relied on, is Section 430.
Section 430 provides, "When the judgment passed by an appellate court upon appeal shall be final except in the cases provided for in Section 417 and Chapter XXXII".
The section deals with the finality of orders on appeal.
An exception is made in the case of a judgment under Section 417 that is, in an appeal by a public prosecutor against an order of acquittal, whether made by the trial court or the appellate court.
So also, the provisions of Chapter XXXII is excepted in that the judgment of an appellate court will not be final when provision is made for reference and revision.
Neither Section 424 nor Section 430 deal with the prohibition imposed under Section 369 prohibiting the court from altering or reviewing its judgment when once it has signed it.
It was next submitted that in any event Section 561 A is wide enough to include a power of review by the High Court.
Section 561 A of Criminal Procedure Code runs as follows : "561A.
Nothing in this Code shall be deemed to limit or effect the inherent power of the High Court to make such orders, as may be necessary, to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice".
The inherent power of the High Court is restricted to making such orders, as may be necessary, to give effect to any order, under the Code or to prevent abuse of the process of any court or otherwise to 1122 secure the ends of justice.
The scope of the section has been explained.
In the two decisions of the Privy Council, which have been uniformly followed by this Court.
In Emperor vs Khwaja Nazir Ahmad the Privy Council, repelling the view that Section 561A of Criminal Procedure Code gave increased powers to the court which it did not possess before that section was enacted, observed, that "it was not so" and proceeded to state "The section gives no new powers, it only provides that those powers which the Court already inherently possess shall be preserved, and is inserted as.
Their Lordships think lest it should be considered, that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code and that no inherent power had survived the passing of that Act.
Reiterating the same view the Privy Council in Lala Jairam Das and Others vs Emperor observed: that Section 561A of the Code confers no new powers.
It merely safeguards all existing inherent powers possessed by a High Court necessary (among other purposes) to secure the ends of justice.
This Court in State of Uttar Pradesh vs Mohammad Naim cited with approval the two decisions of the Privy Council referred to above.
Section 561A was added to the Code in 1923.
It purports to save the inherent powers of the High Court to make such orders as may be necessary to give effect to any order passed under the Code, to prevent abuse of the process of the Court and otherwise to secure the ends of justice.
The introduction of the section was because doubts were expressed about the existence of such inherent powers in the High Courts after the passing of the Criminal Procedure Code.
By the introduction of the section it was made clear that, the inherent powers of the High Court, for the purposes mentioned in the section, shall not be deemed to be limited or affected by the provisions of the Criminal Procedure Code.
Thus, inherent power cannot relate to any of the matters specifically dealt with by the Code.
It would follow that inherent powers cannot be invoked to exercise powers which would be inconsistent with any of the specific provisions of the Code.
The saving of inherent power is only for giving effect to orders passed under the Code, to prevent abuse of the process of any court or otherwise to secure the ends of justice.
Section 369 of the Criminal Procedure Code is understood as applying to judgments on appeal by the High Court, Section 561A cannot be invoked for enabling the Court to review its own order which 1123 is specifically prohibited by Section 369 by providing that, no court when it has signed its judgment, shall alter or review the same except to correct a clerical error.
Section 424 read along with Sections 366 and 367 would show that the requirements of the two sections in a judgment by a criminal court of original jurisdiction, shall also apply, as far as applicable to the judgment of the appellate court other than the High Court.
The proviso is significant.
It states that the appellate court, when delivering the judgment the accused shall not be brought up or required to attend unless otherwise directed to hear the judgment delivered.
The provisions of Section 366(2) require the court to secure the personal attendance of the accused at the time of delivery of the judgment, except where his personal attendance during the trial has been dispensed with.
The effect of Section 424 is generally that, the appellate court should comply with the requirements prescribed under Sections 366 and 367.
Section 430 deals with finality of orders on appeal, that is, the judgment passed by an appellate court shall be final unless otherwise provided for, but the finality of the appeal is subject to the provisions of section 417 of the Criminal Procedure Code which enable the State to prefer an appeal against an order of the trial court or by an appellate court.
Similarly a judgment by an appellate court is final subject to the Chapter which provides for reference and revision.
Section 424 deals with the general requirements of judgments and Section 430 with the finality of judgment on appeal unless otherwise provided for.
These two sections, it may be noted, do not deal with restriction against altering or reviewing the judgment except for correcting a clerical error.
A reading of Section 369 of Criminal Procedure Code would reveal that this Section is intended to apply to all courts, the provision being "no court when it has signed its judgment shall alter or review the same". 'no court ' would include 'all courts '.
The operation of the section is saved if it is provided by the Code or by any other law for the time being in force.
So far as the High Court is concerned, the Section provides that the prohibition will not apply if the Letters Patent or other instrument constituting such High Courts confers such a power.
We see no justification for restricting the application of the Section to judgments delivered by the High Court in criminal trials alone.
The reference to the High Court in the section would indicate that the High Court is also covered by the provisions of the section subject to the exception provided for.
The criminal jurisdiction as conferred by the Letters Patent on the High Court covers not only the original criminal jurisdiction but also appellate powers.
Though Section 369 appears in Chapter XXVI, we 1124 are not inclined to accept the contention put forward on behalf of the defence that it is applicable only to trial courts and in any event not to appellate judgments of the High Court.
Section 362 of the new Act has done away with the special provisions regarding the High Court and has made the section applicable to all courts.
On a careful reading of Sections 369 and 424 and 430, we are satisfied that Section 369 is general in its application.
The word 'no court ' would include all courts and apply in respect of all judgments.
Section 424 in confined, in its application, only to the mode of delivery of judgment, the language of the judgment, the contents of judgment etc.
and section 430 of Criminal Procedure Code to the finality of judgments on appeal, except as provided for.
Whether the judgment is by the trial court or the appellate court, Section 369 is universal in its application and when once a judgment is signed, it shall not be altered or reviewed except for correcting a clerical error.
Mr. Patel, the learned counsel for the respondents, submitted that this Court has laid down that Section 369 is applicable only to judgments of the trial court and therefore Section 369 cannot be construed as being applicable to appellate court, especially to High Court.
He relied on the decision in U.J.S. Chopra vs State of Bombay.
The question that arose for decision in the case was whether a revision preferred by the State of Bombay to the High Court praying for enhancement of sentence, passed on the accused, is maintainable after the appeal preferred by the accused to the High Court of Bombay, was summarily dismissed.
This court held that the summary dismissal of the appeal, preferred by the appellant, did not preclude him, from taking advantage of the provision of Section 439(6) of the Code of Criminal Procedure, and showing cause against his conviction when he was subsequently called upon to show cause why the sentence imposed on him should not be enhanced.
Two separate judgments were delivered by the three Judge Bench.
Justice Bhagwati along with Imam, J. spoke for the court while S.R. Das, J. delivered a separate judgment.
Justice Das, while repelling the contention that the power under Section 439(6) is conditioned or controlled by the provisions relating to finality of judgment embodied under Section 369 and 430 at page 108, observed: "There is indication in the Code itself that the purpose of Section 369 is not to prescribe a general rule of finality of all judgments of all criminal courts but is only to prescribe the finality of the judgment so far as the trial court is concerned.
That this Section does not, by itself, apply to the judgment of an appellate court is quite obvious, because if it did, there 1125 would have been no necessity for enacting Section 424 specifically making the rules contained in Chapter XXVI which includes Section 369 applicable to the judgment of any appellate Court other than High Court, nor for again prescribing by Section 430 a rule of finality for judgments and orders passed by an appellate Court".
The learned Judge concluded that the finality of section 369 attaches to the judgments pronounced by all trial courts including the High Court in the exercise of its original criminal jurisdiction, it certainly has no bearing on the question of finality of appellate judgments which is specifically provided by section 430 of the Code.
Bhagwati J. who spoke for the Court has not held that the provisions of section 369 are applicable only to judgments of the trial courts.
On the other hand, a reading of the judgment of Bhagwati J. would indicate that the learned Judge was inclined to hold that the finality provided for in section 369 of the Criminal Procedure Code is also applicable to the judgments rendered by the High Court in the exercise of its appellate or criminal jurisdiction.
At p. 144 of the Reports the learned Judge observed that once a judgment of the lower court is replaced by the judgment of the High Court, the High Court has no further powers to review or revise its own judgment and enhance the sentence which is thus passed by it upon the accused.
The principle as to the finality of judgments applied by the Court by virtue of the provisions of section 369 and section 430 of the Criminal Procedure Code should not have been confined merely to the question of con firming the conviction but also should have been extended to the con firming of the sentence insofar as the High Court did not see any reason to reduce the sentence already passed by the lower Court upon the accused.
Again dealing with the principle of finality the learned Judge observed that the principle of finality of judgments should therefore be extended not only to the question of the confirming of the conviction but also to the question as to the adequacy of the sentence, whether the sentence which is passed upon the accused by the lower Court should be reduced, confirmed or enhanced.
Once therefore the judgment of the High Court replaces that of the lower Court there is no question which can ever arise of the exercise by the High Court of its revisional powers under section 469 ( 1 ) of the Criminal Procedure Code.
Again at p. 162 the learned Judge reiterated the principle and observed "As we have observed that principle comes into operation when once a judgment of the High Court has replaced that of the lower Court and in those cases the High Court would not be competent to review or revise its own judgment." In referring to the import of section 369 on the powers of the High Court under section 439(6), Bhagwati J. held that section 369 in terms provides, 1126 "save as otherwise provided in this Code" and section 439(6) would be an otherwise provision which is saved by this non obstante clause appearing in section 369.
It is significant to note that both these amendments the one is section 369 and the other is section 439, were enacted by section 119 of Act XVIII of 1923 and the very purpose of these simultaneous amendment would appear to be to effectuate the right given to the accused to show cause against his conviction as enacted in section 439(6) of the Criminal Procedure Code".
As the majority judgment does not share the view expressed by Das J. quoted above reliance cannot be placed on the view of Das J.
The view expressed by Privy Council in Jai Ram Das 's(1) case that alteration by the High Court of its judgment is prohibited by section 369 of the Code was not brought to the notice of Das J. Later decision Of this Court particularly the decision in Superintendent and Remembrance of Legal Affairs, W.B. vs Mohan Singh and Others (2) held that when once the judgment has been pronounced by the High Court either in exercise of its appellate or its revisional jurisdiction, no review or revision can be entertained.
In the Full Bench decision of the Allahabad High Court in Raj Narain and other vs The State (2), Moothem J. observed: "It has commonly been assumed, even it would appear by the Privy Council in Jairam Das 's case, that this section applies also to the judgment of the appellate Court but it is clear that this is not so: U.J.S. Chopra vs State of Bombay ; In a latter decision in Nirbhay Singh vs State of Madhya Pradesh, (4) this Court, dealing with section 369, after referring to Chopra 's case observed that section 369 occurs in Chapter XXVI and prima facie applies to judgments of the court of first instance.
The Court did not proceed on the basis that it was settled law that section 369 is applicable only to judgments of trial courts.
Before concluding we will very briefly refer to cases of this Court cited by counsel on both sides.
1958 S.C.R.1226 relates to the power of the High Court to cancel bail.
The High Court took the view that under section 561A of the Code, it had inherent power to cancel the bail, and finding that on the material produced before the Court it would not be safe to permit the appellant to be at large cancelled the bail distinguishing the decision in 1945 Law Reports and 72 Indian Appeals (supra) and stated that the Privy Council was not called upon to consider the question about the inherent power of the High Court 1127 to cancel bail under section 561A.
In Sankata Singh vs State of U.P.,(1) this Court held that section 360 read with section 424 of the Code of Criminal Procedure specifically prohibits the altering or reviewing of its order by a court.
The accused applied before a succeeding Sessions Judge for re hearing of all appeal.
The learned Judge was of the view that the appellate court had no power to review or restore an appeal which has been disposed of.
The Supreme Court agreed with the view that the appellate court had no power to review or restore an appeal.
This court, expressing its opinion that the Sessions Court had no power to review or restore an appeal observed that a judgment.
which does not comply with the requirements of section 369 of the Code, may be liable to be set aside by a superior court but will not give the appellate court any power to.
set it aside himself and rehear the appeal observing that "section 369 read with section 424 of the Code makes it clear that the appellate court is not to alter or review the judgment once signed, except for the purpose of correcting a clerical error.
Reliance was placed on a decision of this Court in Superintendent and Remembrance of Legal Affairs W.B. vs Mohan Singh and others(2) by Mr. Patel, learned counsel for the respondent wherein it was held that rejection of a prior application for quashing is no bar for the High Court entertaining a subsequent application as quashing does not amount to review or revision.
This decision instead of supporting the respondent clearly lays down, following Chopra 's case (supra) that once a judgment has been pronounced by a High Court either in exercise of its appellate or its revisional jurisdiction, no review or revision can be entertained against that judgment as there are no provisions in the Criminal Procedure Code which would enable the High Court to review the same or to exercise revisional jurisdiction.
This Court entertained the application for quashing the proceedings on the ground that a subsequent application to quash would not amount to review or revise an order made by the Court.
The decision clearly lays down that a judgment of the High Court on appeal or revision cannot be reviewed or revised except in accordance with the provisions of the Criminal Procedure Code.
The provisions of section 561A of the Code cannot be revoked for exercise of a power which is specifically prohibited by the Code.
In the result we accept the contention put forward by Mr. Mukerjee for the State and hold that High Court has no power to revise its own order.
The appeal is allowed.
P.H.P. Appeal allowed.

summary:
The respondents were convicted under Section 20 of the Forward Contracts.
(Regulation) Act, 1952.
The District Magistrate found the firms and persons in management of business guilty of the offences with which they were charged and inflicted a consolidated fine of Rs. 2000/ with the direction that they would suffer simple imprisonment for three months in default of payment of fine.
Against their conviction and sentence the accused preferred an appeal to the Sessions Judge.
The Sessions Judge while dismissing the appeals found that the law required imposition of a minimum sentence of fine of Rs. 1000/ for each offence and as the sentence passed by the Trial Court was not in accordance with the law, he referred the matter to the High Court for passing an appropriate, sentence.
The accused also preferred revision petition against the order of the Sessions Judge.
Both the proceedings were heard together The High Court dismissed the revision petition preferred by the accused and accepted the reference by the Sessions Judge and enhanced the sentence so far as the firms are concerned, to a sum of Rs. 3,900/ .
As regards the Managers or the Managing partners the High Court sentenced them to six months rigorous imprisonment.
The Managers or Managing Partners filed miscellaneous petitions before the High Court for review of its order.
The High Court accepted the petition for review and recalled its previous judgment imposing sentence of six months rigorous imprisonment on the petitioners and instead imposed a fine of Rs. 3900/ .
The High Court came to the conclusion that no comprehensive notice was given to the accused to show cause why sentence of film should not have been enhanced to true sentence of substantive imprisonment and that the notice was only to show cause why the fine should not be increased.
The State of Orissa filed an appeal by certificate in this Court The appellants contended.
(1) The High Court had no jurisdiction to review its own judgment.
(2) The High Court erred in holding that proper notice was not issued.
(3) The notice issued to the accused was clear and wide enough to include the imposition of substantive sentence of imprisonment.
The respondent contended: 1.
The High Court has ample jurisdiction under section 561(A) and other provisions of the Criminal Procedure Code to review its own judgment.
Section 369 of the Criminal Procedure Code is not applicable to judgments on appeal passed by the High Court much less to the judgment of the High Court passed in exercise of its criminal jurisdiction, under section 439 1115 Allowing the appeal the Court, ^ HELD: (1) Section 369 as enacted in 1898 provided that no Court other than High Court, when it has signed its judgment shall alter or review the same except as provided in Section 395 and 484 or to correct a clerical error.
The section was redrafted in 1921 which gave power to the High Court to review its judgment only if it is provided by the code or by any other law for the time being in force.
Section 362 of the Criminal Procedure Code 1974 also provides: "that save as otherwise provided by the Code or by any other law no court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error." [1119 A E] (2) The Letters Patent of the High Court at Bombay, Calcutta and Madras provide that the High Court shall have full power to review a case if such points or points of law are reserved under clause 25 or on it being certified by the Advocate General that there is an error and the points should be further considered.
No other provisions relating to the power of review of the consideration of the High Court was brought to the notice of the Court.[1120 A C] (3) The provisions of Sec. 424 which make the procedure of the Court of original Jurisdiction applicable to the Appellate Court cannot confer the power of review.
[1127 C] (i) The inherent power of the High Court conferred by Sec.
561(A) are restricted to making orders to give effect to any order under the Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice.
Section 561 (A) does not confer increased powers to the Court which it did not possess before that section was enacted.
It only provides that those powers which the Court inherently possessed shall be preserved.
[1121 ,H, 1122 A C] Emperor vs Khweja Nazir Ahmad, AIR 1945 Privy Council 18; Lala Jairam Das & Ors.
vs Emperor, 1945 Law Reports 72 I.A. 120 State of U.P. vs Mohammad Naim, ; at 370 relied on.
(2) Sec.
561(A) was added to the Code in 1923 because doubts were expressed about the existence of such inherent powers in the High Court after the passing of the criminal procedure code.
The inherent powers cannot relate to any of the matters specifically dealt with by the Code.
Inherent powers cannot be invoked to exercise powers which would be inconsistent with any of the specific provisions of the Code.
The inherent power is only for giving effect to orders passed under the code, to prevent abuse of process of any court or otherwise to secure the ends of justice.
[1122 D G] R. J. section Chopra vs State of Bombay, ; distinguished.
Raj Narain & Ors.
vs The State, AIR 1959 All. 315, U. J. section Chopra vs State of Bombay, ; ; Nirbhay Singh vs State of M.P., ; Sankatha Singh vs State of U.P.; , ; Superintendent and Remembrance of Legal Affairs W.B. vs Mohan Singh & Ors., referred to. 1116