judgement:
Appeal No. 2113 of 1968.
Appeal by special leave from the Award dated May 24, 1968 of the Industrial Tribunal, Andhra Pradesh in I.D. No. 10 of 1967.
Niren De,.
Attorney General, S.K. Dholakia, R.H. Dhebar and S.P. Nayar, for the .appellant.
K. Srinivasamurthy and Naunit Lal, for respondents Nos. 1 to 12.
B.P. Maheshwari, for respondent No. 13.
The Judgment of the Court was delivered by Vaidialingam, J.
This appeal, by special leave, by the Vizagapatam Dock Labour Board (hereinafter referred to as the Board), is directed against the award, dated May 24, 1968 of the Industrial Tribunal, Andhra Pradesh, Hyderabad in I.D. No. 10 of 1967 holding that the appellant should pay the .Dock workers employed at Vizagapatam Port bonus for the accounting years 1964 65, 1965 66 and 1966 67.
The Central Government, by its order dated April 13, 1967 referred for adjudication, to the said Tribunal, the question whether the demand for payment of bonus to Dock Labour Board Workers employed at Visakhapatnam Port for the acconting years 305 1964 65, 1965 66 and 1966 67 was justified and, if so, at what rate should such bonus be paid.
The parties to the Reference included the Board, the Visakhapatnam Stevedores Association, certain individual Stevedores and two Unions representing workers.
The two Unions were the Port Khalasis Union and the Dock Workers Union.
Both the Unions filed statements of claim on behalf of their workmen.
They referred to the demands made by them for payment.
of bonus and the rejection thereof by the Board and the Stevedores Association.
They referred to certain agreements having been reached in respect of bonus between the workmen and the respective Stevedores Associations, in Calcutta, Cochin, Madras and Bombay.
They claimed that the work done by the workmen at Visakhapatnam Port was exactly similar to the type of work done by the Stevedores workmen at Bombay, Calcutta, Cochin and Madras and that therefore their claim for bonus was justified.
They further referred to the fact that the Board and the Stevedores Association were all governed by the (Act IX of 1948) (hereinafter referred to as the Act) and the Vizagapatam Dock Workers (Regulation of Employment) Scheme, 1959 (hereinafter referred to as the Scheme), framed thereunder.
The said Scheme is similar to the Scheme obtaining in the areas where a settlement had been entered into regarding bonus and the relationship between the Stevedores and the Dock Labour Board was also the same in all ports.
The Unions claimed bonus at 14 paise per ton for 196465, 15 paise per ton for 1965 66 and 16 paise per ton for 1966 67.
The Visakhapatnam Stevedores Association and its member Stevedores filed statements contesting the claim of the workmen.
After referring to some of the provisions of the Act and the Scheme, the Association urged that the Dock Workers were the workmen of the Board as all the ingredients of master and servant existed as between the Board and the Dock Workers.
The Association further urged that the Dock Labour workers were not the employees of the Stevedores and, as such no claim for bonus could be made as against the Stevedores Association or its members.
the Association further pleaded that it.
was an unnecessary party of the Reference and the workmen had no claim as against it in view of the fact that the Association or its members were not the employers of the dock workers.
They also contested the claim of the workmen on merits.
The Board, represented by its Chairman, filed a written statement contesting the claim of the Stevedores that they were not the employers of the dock workers.
The Board claimed that it was a statutory body constituted under the Act and governed by the 306 statutory Scheme in the discharge of its statutory functions.
According to it none of t,he functions discharged by it under the Act or the Scheme could be characterised as 'carrying on of an industry ' so as to attract the provisions of the Industrial Disputes Act.
On the other hand, the Board urged that it was the Stevedores and their Association that carried on the stevedoring industry during the years for which a claim for bonus was made by the workmen and therefore, if at all, the liability for payment of bonus should be that of the Stevedores and their Association.
It further urged that the claim, having been made by the workmen against the Stevedores, the latter should not be allowed to convert.
the said claim into one against the Board.
The Board also further pleaded that it was not a necessary or proper party to the dispute.
It filed an additional written statement pointing out that the Visakhapatnam Stevedores Association had been appointed by the Central Government as the Administrative Body for the purpose of carrying on the day to day administration of the Scheme and that the said Administrative Body is deemed to act as an agent for the employers, as would be evident from the Scheme.
After referring to the functions of the Administrative Body under the Scheme, the Board claimed that it had no further part to play in the proceedings before the Tribunal.
The Industrial Tribunal, after referring to the nature of the duties performed by the Board as well as the Setvedores Association and its members and their relationship with the Dock Labour Boards, held that it is the Board that is the employer of the dock workers and that the Board is liable for meeting the claim for bonus.
The Tribunal has proceeded on the basis that the bonus claim by the workmen is 'tonnage bonus ' because while loading or unloading cargo any particular gang or gangs of workmen may not be working continuously for a given period for a particular Stevedore and therefore the bonus that has to be paid to the dock workers must be on the basis of the tonnage handled by them.
The Tribunal then considered the rate at which bonus it to be awarded for the three years.
Ultimately it has held that the demand for bonus by the workmen for the three years in question is justified and it has to be paid by the Board at the rate of 13 paise per ton for the year 1964 65, at 14 paise per ton for the year 1965 66 and at 15 paise per ton for the year 1966 67.
The learned Attorney General, on behalf of the appellant, raised two contentions: (i) That the Tribunal has acted illegally and without jurisdiction in making the Board liable for payment of bonus when the claim of the workmen for such payment was against the Stevedores Association and its members and; (ii) having due regard to the provisions of the Act and the Scheme and the 307 functions discharged by the Board, the Tribunal should have held that there is no employer employee relationship between the Board and the Dock Labour workmen and, as such the Board could not be made liable for the claim.
Regarding the first contention, the learned Attorney General invited our attention to the nature of the claim made by the two Unions as well as the discussion contained in respect of such claim in the award.
The Attorney General also referred us to the plea taken by the Board in its written statement that a claim exclusively made by the dock workers as against the Stevedores should not be allowed by the Stevedores to be converted into a claim made as against the Board and that no award could be passed against the Board contrary to the claim of the workmen themselves.
Mr. K. Srinivasamurthy, learned counsel appearing for the Stevedores Association, urged that the claim by the Unions was for payment of bonus against the Board and therefore the Board has been properly made liable.
Alternatively, the counsel urged that the claim by the Unions was for payment of bonus and the Tribunal was perfectly justified in considering which party was liable to meet this claim.
It was in considering such a claim that the Tribunal had held the Board to be liable.
Having due regard to the nature of the claim and the basis on which the Tribunal itself has proceeded, we are satisfied that the claim for bonus has been made by the Unions specifically against the Stevedores Association and its members and, as such, the Tribunal was not justified in making the Board liable.
In the statement of claim filed by the Port Khalasis Union, m paragraph 2 it is stated that since the Stevedores are the registered employers of the Dock Labour Board, the bonus should be settled by the Stevedores Association only.
In paragraph 14 the Union has stated that the plea of the Stevedores at Visakhapatnam that they are not concerned with the demand for bonus since the workers are registered with the Dock Labour Board is wrong, baseless and aimed at confusing the issue.
After referring to the agreements arrived at between the Stevedores workmen and the Stevedores at Bombay, Calcutta, Cochin and Madras, the Union has stated in paragraph 15 that the Stevedores at Visakhapatnam Port are in no way different and they cannot disclaim their responsibilities for payment of bonus to the workmen.
Similarly, the Dock Workers Union in its statement, has referred to the fact that it has been agitating for many years for the introduction of payment of bonus as obtaining in Madras, Bombay, Calcutta and Cochin.
The Union has further stated that the Ste 308 vedores of Visakhapatnam are the employers registered in the Dock Labour Board as the real employers.
It has further stated that the Stevedore companies are private employers who work for a consideration and derive large profits out of the employment and the operations of the Stevedore workers.
The Stevedores have been resisting the claim of the workmen for payment of bonus and have been postponing consideration of the claim.
The Union has further stated that payment of bonus can be made by the Board on behalf of the Stevedores and the Stevedoring business is very lucrative and profitable.
The Union further prayed the Tribunal to summon the accounts of the Stevedores as the claim of the workmen regarding the financial position of the Stevedores will be fully found established.
The Stevedores Association no doubt has stated that the Dock workers are the workmen of the Board as all the ingredients of master and servant exist as between the Board and the dock workers.
The Board has categorically stated in its written statement that the dock workers ' claim against the Stevedores should not be allowed to be converted by the Stevedores into a claim against the Board.
The Board has further specifically pleaded that no award could be passed against it contrary to the claim made by the dock workers themselves.
The various averments contained in the statements referred to above will clearly show that the claim for payment of bonus by the dock workers was essentially and in the main directed against the Stevedores Association and its members.
Otherwise a reference by the Union to the prosperity and lucrative business conducted by the Stevedores and the large profits mad.e by them wilt have no relevancy at all.
No doubt here and there are certain averments regarding the Board, but so far as we could see, no specific claim for payment of bonus as against the Board has been made.
On the other hand the claim is that the Board 'on behalf of the Stevedores in Visakhapatnam ' can pay the bonus claimed by the Unions.
The statement filed by the Stevedores Association also makes it clear that they understood the claim by the workmen as directed against them because it makes various averments to establish that the workmen have no claim as against them as the Stevedores Association or its members are not the employers of the workmen.
The Board has specifically stated that a claim made against the Stevedores should not be converted into a claim made against the Board and no award can be passed contrary to the claim ' of the workmen themselves.
That the Tribunal also understood that the claim of the workmen was against the Stevedores Association and its members is also evident from the state 309 ment in para 4 of the award wherein ' the Tribunal observes as follows: "The claimants claim bonus for the three years mentioned in the issue, and they claim that it should be paid by the Stevedores.
They claim that it should be paid on the same basis as adopted at the other ports viz., Calcutta, Bombay, Madras and Cochin.
" That the claim for bonus in the four areas referred to above was being met by the respective Stevedores Associations though on the basis of ,agreement is not in dispute.
The observation extracted earlier shows that the Tribunal has also proceeded on the basis that the claim by the workmen has to be adjudicated upon on the basis that.
it is the liability of the Stevedores.
But, unfortunately, in the latter part of the award the Tribunal has mixed up the discussion regarding the liability of the Board or the Stevedores Association and has ultimately held that the Board is liable for payment of bonus.
No doubt the basis for this conclusion is that the Board is the employer of the dock workers.
The correctness of the view about the Board being the employer of the dock workers will be considered by us when we deal with the second contention of the learned Attorney General.
To conclude on the first aspect the learned Attorney General is well rounded in his contention that in view of the pleadings and the nature of the claim made by the workmen the award making the Board liable for payment of 6onus is not correct.
Normally, our decision accepting the first contention of the learned Attorney General is enough to dispose of the appeal.
But, as the Tribunal has adjudicated upon the contention of the Board that.
it is not the employer of the dock workers and held against it, we shall proceed to consider the second contention of the learned Attorney General.
In order to appreciate the relationship between the Board, the dock workers and the Stevedores Association, it is necessary to refer to certain provisions of the Act and the Scheme.
But before we do so, we can broadly set out how the work of loading and unloading of ships in the port of Visakhapatnam is being done.
The Board maintains a Dock Labour pool.
The shipping companies have their agents at Visakhapamam.
The Stevedores enter into contracts with the ship owners for the loading and unloading of cargo.
The contracts contain clauses regarding the rate per ton of cargo payable to the Stevedores who handle the loading or the unloading of cargo.
The shipping agents inform the Stevedores about the ship that is due to arrive as also the nature and ' quantity of the cargo to be loaded or unloaded.
The Stevedores inform the Board about the quantity of cargo to be loaded or L2SupCI/70 8 310 unloaded and place an indent stating the approximate labour force that may be required for the said purpose.
The Board supplies the labour force as asked for.
Along with the labour force the Board deputes two supervisors who are called the loading mazdoors and the tindal.
The Stevedores employ one Foreman for the entire operation of either loading or unloading.
The duty of the Foreman appears to be to see that the cargo is not damaged and that it is properly handled by the labour force supplied by the Board.
The Stevedores have to carry on the work with the labour force supplied by the Board and they cannot engage outside labour for the work.
The Stevedores pay to the Board for the services of the workers supplied by it.
Over and above the wages due to the labourers and paid to the Board the Stevedores have also to pay 105% of the actual wages to the Board known as 'General & Welfare Levy '.
The Board utilises this additional amount for making certain payments to the workers.
The Stevedores cannot take any disciplinary action against the workmen but, on the other hand, they have to complain to the Board.
The Board takes the necessary disciplinary action against the workers concerned.
It fixes the rates of wages to be paid by the Stevedores and collects the sam.e from them and pays to the workers.
A particular ,gang of workmen may work for one Stevedore on a particular day and on the next day they may work for another Stevedore.
In fact it may even happen that one gang of workmen work for different Stevedores in the course of the same day.
We shall now refer to the salient features of the Act and the Scheme.
The object of the Act is to provide for regulating the employment of dock workers.
Section 2 defines inter alia the expressions 'Board ', 'Dock worker ', 'employer ' and 'scheme.
The expression 'Dock worker ' in brief means a person employed or to be employed in, or in the vicinity of, any port on work in connect.ion with the various matters referred to in the definition. 'Employer ' in relation to a dock worker, means the person by whom he is employed or to be employed as aforesaid. 'Scheme ' has been defined to mean a scheme made under the Act.
Section ' 3 provides for the scheme being made for the registration of dock workers and employers with a view to ensuring greater regularity of employment and for regulating the employment of dock workers, whether registered or not, in a port.
A perusal of clauses (a) to (k) of sub section
(2) of section 3 shows that the scheme may take provision for various matters which include regulating the recruitment and entry into the scheme of dock workers, the registration of dock workers and employers, the employment of dock workers as well as the terms and conditions of employment, including rates of remuneration etc.
The scheme may also provide for the manner in which, and the persons by whom, the cost of operating the scheme is to be derrayed as well as for constituting the autho 311 rity to be responsible for the administration of the scheme.
Section 5 provides for the Central Government or the State Government, as the case may be, when making a scheme, constituting an Advisory Committee to advise upon such matters arising out of the administration of the Act or any scheme made under it as well as regarding its composition.
The Advisory Committee shall include an equal number of members representing the Government, the dock workers and the employers of dock workers and shipping companies.
Section 5A provides for the establishment of a Dock Labour Board by the Government for a port or group of ports, as well as its composition.
Under section 5B the Board is made responsible for administering the scheme for the port or group of ports for which it has been established and also the Board is to exercise such powers and perform such functions as may be conferred on it by the scheme.
The Central Government has flamed a scheme under sub section
(1) of section 4 of the Act for the Port of Vizagapatnam.
Clause 2 states that the objects of the Scheme are to ensure greater regularity of employment for dock workers and to secure that an adequate number of dock workers is available for the efficient performance of dock work.
The Scheme applies to the registered dock workers and registered employers.
Clause 3 definies the various expressions. 'Daily worker ' means a registered dock worker who is not a monthly worker.
Monthly worker ' means a registered dock worker who is engaged by a registered employer or a group of such employers on a monthly basis under a contract which requirs for its termination at least 1 month 's not.ice on either side. 'Dock employer ' means a person by whom a dock worker is employed or is to be employed and also includes a group of dock employers formed under cl. 14(1)(d). 'Registered dock worker 's means a dock worker whose name is for the time being entered in the employers ' register. 'Reserve pool ' means a pool of registered dock workers who are available for work and who are not for the time being in the employment of a registered employer or a group of dock employers as monthly workers.
Clause 5 provides for the Central Government appointing an Administrative Body for the purpose of carrying on the day to day administration of the Scheme.
There is no controversy that.
the Vizagapatam Stevedores ' Association, in this case, has been appointed as the Administrative Body.
Under cl. 7 dealing with the various functions of the Board, the latter is authorised to take various measures for furthering the objects of the Scheme.
The measures contemplated under subcls.
(a) to.
(i) of cl.
7(1) include ensuring the adequate supply and the full and proper utilisation of the dock labour, regulating the recruitmeant and entry into and the discharge from the Scheme, 312 of dock workers, the allocation of registered dock workers in the reserve pool to.
registered employers, maintaining the employers ' registers and dock register of dock workers, the levying and recovering from registered employers, contributions in respect of the expenses of the Scheme, administering the Dock Workers Welfare Fund and recovering from registered employers contribution for such fund, administering a Provident Fund 'and a Gratuity Fund for registered dock workers in the reserve pool.
The various functions enumerated show that the Board 's primary responsibility is the administration of the Scheme and to, see that the work in the dock is properly done and the labour employed ,for such purpose is not exploited.
Among the responsibilities and duties enumerated in el. 8 are the fixing of the number of dock workers to.
be registered under various categories, considering registration of new employers, determination of the wages, allowance and other conditions of service and fixing the rate of contribution to be made by registered employers to the Dock Workers Welfare Fund.
Under el. 9 (1 )(k), the Chairman of the Board is given power to take disciplinary action against registered dock workers and employers in accordance with the provisions of the Scheme.
Under cl. 11, the Administrative Body has been made responsible for the administration of the Scheme and in particular of the various matters mentioned in sub cls.
(a) to (k).
Sub cl.
(e) thereof provides for the Administrative Body allocating registered dock workers in the reserve pool who are available for work to registered employers and for this purpose, under cl.
(i) thereof the Administrative Body is deemed to act as an agent for the employer.
Sub cls.
(i) and (ii) of cl.
(f) cast the duty on the Administrative Body of collecting the levy, contribution to the Dock Workers Welfare Fund or any other contribution from the employers as may be prescribed under the Scheme, 'as well as the collection of the registered dock workers ' contribution to the Provident Fund, Insurance Fund or any other fund which may be constituted under the Scheme.
Sub cl.
(iii) makes the Administrative Body responsible for payment as agent of the registered employer to each daily worker of all earnings properly due to the dock worker from the employer and the payment to such workers of all monies payable by the Board to those workers in accordance with the Scheme.
Two points emerge from cl. 11 (viz.) when allocating registered dock workers in the reserve pool for work to registered employers, the Administrative Body is deemed to act as agent for the employer; and the payment to each daily worker of all earnings properly due to him from the employer is made by the Administrative Body as ,agent of the registered employer.
Clause 14 deals with the maintenance of Employers. ' Register and the Workers ' Registers.
Clause 18 deals with promotion and 313 transfer of workers.
Sub cl.
(3) thereof deals with the transfer of a monthly worker to the reserve pool at the request of the employer or the worker, 'but such transfer is made subject to the fulfilment of any contract subsisting between the monthly worker and his employer.
Sub cl.
(4)provides for considering the request for transfer to a reserve pool by a monthly worker whose services have been terminated by his employer for an act of indiscipline or misconduct.
Clauses 30, 31 'and 33 deal with the payment of guaranteed minimum wages.
to a worker in the reserve pool register, payment of attendatnce allowance and disappointment money to such worker, respectively.
Clause 36 deals with the obligations of registered dock workers and cl.
(2) thereof states that a registered worker in the reserve pool who is available for work shall be deemed to be in the employment of the Board.
We have already seen that under el. 11 (e), when allocating registered dock workers in the reserve pool for work to registered employers, the Administrative Body shall be deemed to act as 'an agent for the employer.
Under sub el.
(5) of el.
36 a registered dock worker when allocated for employment under a registered employer is bound to carry out his duties in accordance with the directions of such registered employer or his authorised representative or supervisor 'and the rules of the port or place where he is.
working.
Clause 37 enumerates the obligations of registered employers.
They are prohibited from employing a worker other than a dock worker who has been allocated to him by the Administrative Body under el.
Il(e).
The registered employers are also bound to pay the Administrative Body the levy under cl.
51(1) as well as the gross wages due to a daily worker.
They are also bound to make contributions to the Dock Workers Welfare Fund under el.
Clause 38 deals with restriction on employment.
Registered employers are prohibited from engaging workers on dock work unless they are registered dock workers.
It also prohibits persons other than registered employers employing any worker on dock work.
Under cl. 40 it is provided that it shall be an implied condition of contract between a registered worker (whether in the reserve pool or on the monthly register) and ' 'a registered employer that the rates o,f wages, 'allowances and overtime, hours of work shall be such as may be prescribed by the Board for each category of workers and the fixation of wage periods etc.
, shall be in 'accordance with the provisions of the .
Clause 44 deals with disciplinary procedure to be followed in taking action against a registered employer and a registered dock worker.
Clause 46 deals with termination of employment.
Clause 51 provides for the cos.t of operating the Scheme being defrayed by payments made by registered employers to the Board.
314 It provides ,for the registered employer paying to the BOard such amount by way of levy in respect of the Reserve Pool Workers when paying the gross amount of wages due from them under cl. 37(5)(i).
Clauses 52 and 53 provide for Provident Fund and Gratuity and Dock Workers Welfare Fund respectively.
We have rather elaborately gone into the various matters dealt with under the Act and the Scheme as that will give a true picture of the nature of the functions and duties that the Board discharges in respect of the work carried on in the port.
From the various provisions of the Act 'and the Scheme referred to above, it is evident that the Board is a statutory body charged with the duty of administering the Scheme, the object of which is to ensure greater regularity of employment for dock workers and to secure that an adequate number of dock workers are available for the efficient performance of dock work.
The Board is an 'autonomous body, competent to determine and prescribe the wages, allowances and other conditions of service of the Dock workers.
The purport of the Scheme is that the entire body of workers should be under the control and supervision of the BOard.
The registered employers are allocated monthly workers by the Administrative Body and the Administrative Body supplies whenever necessary, the labour force to the Stevedores from the Reserve Pool.
The workmen who are allotted to the registered employers 'are to do the work under the control and supervision of the registered employers and to act under their directions.
The registered employers pay the wages due to the workers to the Administrative Body and the latter, in turn, as agent of the registered employers, pay them over to the concerned workmen.
All these circumstances, in our opinion, prima facie establish that the Board cannot be considered to be the employer of the Dock Labour workmen.
In fact the various provisions referred to in the.
Scheme, clearly show that the registered employer to whom the labour force is allotted by the Board is the employer whose work of loading or unloading of ships is done by the dock workers allotted to them.
Mr. Srinivasamurthy, learned counsel for the respondents, referred us to certain circumstances to support his contention that the relationship.
of employer employee exists between the Board and the dock workers.
Some of those circumstances are recruitment and registration of the dock labour force, fixation of wages and dearness allowance, payment of workmen 's compensation, taking of disciplinary action and prohibition against employment of workmen who are not registered with the Board.
These circumstances, in our opinion, do not establish a relationship of employer and employee between the Board and the dock labour. 315 The functions referred to above are discharged by the Board under the Scheme, the object of which, as mentioned earlier, is to ensure greater regularity of employment for dock workers and to secure that an adequate number of dock workers is available for the efficient performance of dock work.
It is with this purpose in view that the Scheme has provided for various matters and considerable duties and responsibilities are cast on the Board in this regard.
But we have also 'already pointed out that under sub cl.
(5) of cl. 36 a registered dock worker when allotted for employment under a registered employer, shall carry out his duties in accordance with the directions of such registered employer and cl. 11 (e) also makes it clear that in the matter of allocation of registered dock workers in the Reserve Pool to registered employers, the Administrative Body shall be deemed to act as agent for the employer.
Though the contributions for the Dock Workers ' Welfare Fund as well as the wages and other earnings due to a worker are paid by the registered employer to the Board at the rates fixed by it, the latter p.asses on the same to the dock worker concerned, as agent of the registered employer, under cl. 1 l(f)(iii).
Further, the definition of the expression 'dock worker ' and 'employer ' under section 2(b) and (c) respectively of the Act and the definition of 'dock employer ' and 'monthly worker ' in cls.
3(g) and (k) respectively of the Scheme and the obligation cast under section 36(5) of the Scheme on a registered dock worker when allocated for employment under a registered employer to carry out his duties in accordance with the directions of the latter and the provisions contained in cl.
37(5) of the Scheme regarding payment by 'a registered employer to the Administrative Body of the gross wages due to the dock worker and the implied condition of contract between the registered dock worker and the registered employer under cl. 40, read along with the provisions regarding the functions of the Board, in our view, clearly lead to the conclusion that the Board cannot be considered to be the employer of the dock workmen and there is no relationship of master and servant between the two.
Mr. Srinivasamurthy, learned counsel, referred us to the decision of this Court in Kirloskar Oil Engines vs Hanmant Laxman Bibawe(1) in which, according to him, an inference of relationship of master 'and servant was not drawn, though for all practical purposes a person was working under the directions of another.
The question that arose for consideration in that case was whether a watchman deputed to work by the Police Department under a private individual on the basis of a Scheme could be considered to be the employee of the latter, after considering the salient features of the scheme framed by the Police Department and after (1) [1963] 3. S.C.R.514.
316 observing that a decision on the question as to the relationship of employer employee has to be determined in the light of relevant facts 'and circumstances and that it would not be expedient to lay down any particular test as decisive in the matter, this Court held that a relationship.
of master and servant, between the watchman and the private employer, did not exist, notwithstanding the fact that the private employer was enitled to issue orders to the watchman deputed to work under him.
The scheme dealt with in this decision was entirely different from the Scheme before us.
The learned counsel then referred us to a decision of a Single Judge of the Kerala High Court in C.V.A. Hydross & Son vs Joseph Sanjon(1).
That decision had to consider the question regarding payment of retrenchment compensation to certain workmen who had registered 'themselves as workmen under the Dock Labour Board.
They had filed a claim against the permanent Stevedores under whom they were working originally.
The learned Judge, after a consideration of the Scheme framed for the Cochin Port, which is substantially similar to the one before us, held that the Board was the employer of the workmen.
We are not inclined to agree with this decision.
We may also refer to the decision of the Calcutta High Court in A.C. Roy & Co. Ltd. vs Taslim(2).
There No. doubt the question arose in respect of a claim under the .
The learned Chief Justice, after a brief analysis of the Act and the Scheme framed for the Calcutta Port, held that when the Administrative Body of the Board allocated a worker in the Reserve Pool to the registered employer, then for the time being and for the purpose of the work concerned, that worker becomes an employee under the registered employer; and in that decision the Court came to the conclusion that the particular worker concerned was at the material time under the employ of the Stevedore.
When that is the position with regard to a workman in the Reserve Pool, it stands to.
reason that the monthly worker who is engaged by a registered employer under a contract on a monthly basis is an employee of such registered employer, The matter can also be considered from another point of view, viz., can it be stated that the Board is carrying on an industry,, so as to attract the provisions of the Industrial Disputes Act ? We have already referred to the various.
circumstances which will show that there is no employment as such of the dock worker by the Board.
As observed by this Court in G. vmkhana Club Union vs Management ( 3 ).
(1) (2) (31 317 "What matters is not the nexus between the employee and the product of the employer 's efforts but the nature of the employer 's occupation.
If his work can not be described as an industry his workmen are not industrial workmen and the disputes arising between them are not industrial disputes.
The cardinal test is thus to find out whether there is an industry according to the denotation of the word in the first part.
The second part will then show what will be included from the angle of employees.
" Dealing with the definition of 'industry ', this Court further observed: "The definition of 'industry ' is in two parts.
its first part it means any business, trade, undertaking, manufacture or calling of employers.
This part of the definition determines an industry by reference to occupation of employers in respect of certain activities.
These activities are specified by five words and they determine what an industry is and what the cognate expression 'industrial ' is intended to convey.
This is the denotation of the term or what the word denotes.
We shall presently discuss what the words 'business, trade, undertaking, manufacture or calling ' comprehend.
The second part views the matter from the angle of employees and is designed to include something more in what the term primarily denotes.
By the second part of the definition any calling, service, employment, handicraft or industrial occupation or avocation of workmen is included in the concept of industry.
This part gives the extended connotation.
If the activity can be described as an industry with reference to the occupation of the employers, the ambit of the industry, under the force of the second part, takes in the different kinds of activity of the employees mentioned in the second part.
But the second part standing alone cannot define 'industry '.
An industry is not to be found in every case of employment or service.
" Dealing with the expression industri 'al dispute ' in the Industrial Disputes Act, this Court further proceeds to state, in the above decision, at p. 757: ". the words are 'industrial dispute ' and not 'trade dispute '.
Trade is only one aspect of industrial activity; business and manufacture are two others.
The word also is not industry in the 'abstract which means diligence or assiduity in any task or effort but a branch 318 of productive labour.
This requires cooperation in some form between employers and workmen and the result is directly the product of this association but not necessarily commercial." and wound up the discussion, at p. 758, thus: "Industry is the nexus between employers 'and employees and it is this nexus which brings two distinct bodies together to produce a result.
" Applying the above principles to the case on hand, in our opinion it is clear that it cannot be stated that the Board, ,functioning under the Act and the Scheme, carries on any industry so as 10 attract the provisions of the Industrial Disputes Act.
As a claim for any type of bonus can be met only from the actual employer in respect of any industry and as we have held that the Board is neither the employer nor carries on any industry, it follows that the Industrial Tribunal was wrong in directing the Board to pay bonus for the years in question.
In this view the order of the Industrial Tribunal, dated May 24, 1968 has to be set aside.
But, as the claim of the workmen against the Stevedores Association and its members who 'are parties to the Reference has to be considered and adjudicated by the Industrial Tribunal, I.D. No. 10 of 1967 has to be remanded to the Industrial Tribunal concerned for disposal according to law.
The Tribunal will be at liberty to call upon the parties concerned to file supplementary statements and permit them to adduce further evidence, oral and documentary, which may be considered necessary; but it is made clear that the Dock Labour Board, the appellant, will be completely out of the picture in the rein 'and proceedings.
In the result, the order of the Industrial Tribunal, Andhra Pradesh, Hyderabad, dated May 24, 1968 is set aside, and this appeal allowed.
I.D. No. 10 is remanded to the said Tribunal to be dealt with 'and disposed of, according to law and the directions contained in this judgment.
Parties will bear their own costs of this appeal.
Y.P. Appeal allowed.

summary:
The claim for bonus of the Dock Board Workers employed at Vizakhapatnam was referred to the Industrial Tribunal.
The parties to the reference included the Vizagapatnam Dock Labour Board (the appellant), the Stevedores Association, and two Unions representing the workers.
The Industrial Tribunal after referring to the nature of the duties performed by the Board as well as the Stevedores Association and its members and their relationships with the Dock Labour Board held that it was the Board that was the employer of the dock workers and that the Board was liable for meeting the claim for bonus.
The Board in appeal to this Court, contended, that (i) it was not liable for the payment of bonus when the claim of the workers was against the Stevedores Association and its members; and (ii) having regard 10 the provisions of the Dock Workers (Regulation of Employment) Act (9 of 1948), and the Vizagapatnam Dock Workers (Regulation of Employment) Scheme, 1959 and the functions discharged by the Board there was no employer employee relationship between the Board and the workmen, and as such the Board could be made liable for the claim.
Accepting the contentions, this Court, HELD: (i) Having regard to the nature.
of the claim and the basis on which the tribunal itself proceeded, the claim for bonus was made by the unions specifically against the Stevedores Association and its members and.
as such, the tribunal was not justified in making the Board liable.
(ii) The Board cannot be considered to be the.
employer of the Dock Labour Workmen.
From the provisions of Dock Workers (Regulation of Employment) Act and the Vizagapatnam Dock Workers (Regulation of Employment) Scheme, it is evident that the Board is a statutory body charged with the duty of administering the scheme, the object of which is to ensure that greater regularity of employment for dock workers arc available for the efficient performance of dock work.
The Board is an autonomous body, competent 10 determine and prescribe the wages, allowances and other conditions of service of the dock workers.
The purport of the Scheme is that the entire body of workers should be under the Control and supervision of the Board.
The registered employers are allocated monthly workers by the Administrative Body and the Administrative Body supplies whenever necessary, the labour force to the Stevedores from the Reserve Pool.
The workmen who are allotted to the registered employers are to do the work under the control and supervision of the registered employers and to act under their directions.
The registered employers pay the wages due to the workers to the Administrative Body and the latter.
in turn, as agent of the registered employers, pay them 304 over to the concerned workmen.
The registered employer to whom the labour force is allotted by the Board is the employer whose work to them.
The functions of the Board such as recruitment and registration of the dock labour force, fixation of wages and dearness allowance, payment of workmen 's compensation, taking of disciplinary action and prohibition against employment of workers who were not registered with the.
Board do not establish a relationship of employer and employee between the Board and the dock labour.
Further, the Board functioning under the Act and the Scheme cannot be.
said to carry on any industry so as to attract the provisions of the Industrial Disputes Act.
As a claim for any type of bonus can be met only from the actual employer in respect of any industry and as the Board is neither the employer nor carries on any industry the Tribunal was wrong in directing the Board to pay Bonus for the years in question.
[316 B E; G H; 320 C] Gymkhana Club Union vs Management, [1968] 1 S.C.R. 742. 752, applied.
A. C. Roy & Co. Ltd. vs Taslim, , referred to.
Kirlosker Oil Engines vs Hanmant Laxman Bihawej, , distinguished.
C.V.A.Hydross & Son vs Joseph Senjon, 11967] 1 L.L.J. 509 disapproved.


judgement:
Appeal No. 1851 of 1968.
Appeal from the judgment and decree dated June 19, 1963 of the Mysore High Court in Regular Appeal No. 231 of 1960.
Shyamala Pappu and Vineet Kumar, for the appellant.
K. R. Chaudhuri and K. Rajendra Chaudhuri, for respondent No. 1.
section V. Gupte, G, R. Ethirajulu Naidu, B. N. Sen, 0.
P. Khaitan, A. N. Parikh, K. R. Chaudhuri and K. Rajendra Chaudhuri, for respondent to. 2 The Judgment of the Court was delivered by Bachawat J.
The plaintiffs instituted a suit (O.s. No. 515 of 1957 against the defendant alleging that by a contract dated September 2, 1957 the defendant had agreed to assign to the plaintiffs his leasehold interest under a, mining lease in respect of 184 acres of land in Kudrekanave Kaval, Hosadurga Taluk, and claiming specific performance of the contract.
The Trial Court decreed the suit.
The defendant filed an appeal against the decree.
The High Court allowed the appeal and dismissed the suit.
The present appeal has been filed by the plaintiffs after obtaining a certificate under article 133 of the Constitution.
The main question arising in this appeal is whether there.
was a contract as alleged in the plaint.
Under a contract dated August 3, 1957, the defendant agreed to sell to the plaintiffs 40000 tons of float iron lying in the aforesaid mining area and gave them the right to win and remove the iron ore.
We are not directly concerned with this contract in this appeal.
On September 2, 1957 the defendant wrote the following letter to the plaintiffs: 583 "Further to our agreement dated 3rd August 1957 I hereby agree, to assign the sad lone area of 184 acres for iron and manngase ores, in your favour, subject to your paving me one lakh and eighty thousand rupees at your option to be decided by you within three months from this date.
" This document though worded as an agreement was in point of law an offer only.
As a matter of fact,.
on September 2, 1957 the plaintiffs had not agreed to purchase the mining lease.
Until both parties were bound there could be no con cluded contract.
The promise to keep the offer open for three months was not supported by any consideration.
The defendant was at liberty to revoke the offer at any tune before,its acceptance by the plaintiffs.
on October 31, 1957, the defendant posted a letter to the 'Plaintiffs revoking the offer.
This letter reached the plaintiffs on November 6, '1957.
Before that date the,plaintiffs did not accept the offer either orally or by any letter sent to the defendant.
On November 1, 1957, the plaintiffs filed suit (O.S. No. 46 of 1957) against the defendant claiming a declaration that they were entitled to remain in possession of the mining area.
The primary object of the suit was to enforce the plaintiffs ' right under the contract dated August 3, 1957.
The defendant filed his written statement in that suit on November 5, 1957.
The High Court held that the plaintiffs accepted the offer of September 2, 1957 by their plaint in O.S. No. 46 of 1957 and that this acceptance was communicated to, the defendant before November6, 1957.
We are unable to agree with this finding.
The pleadings and issues raised the question whether a con tract was made on September 2, 1957.
If the plaintiffs desired to set up a new case that the contract was concluded in November 1957 they should have amended their pleadings accordingly.
We need not say anything more on this point because we find that the plaintiffs have failed to establish the new case.
In paragraphs 14 and 19 of the plaint in O.S. No. 46 of 1957 the plaintiffs alleged that by the letter dated September 2, 1957 the defendant agreed to assign the mining lease, that they ,were ready and willing to perform the contract and that they reserved their right to file a suit for specific performance.
The suggestion was that the contract was concluded on September 2, 1957 and that in breach of the contract the defendant failed to apply for and obtain the necessary consent of the central government to the assignment of the mining lease.
Paragraph 17 and the prayer portion of the plaint suggested that by virtue of this contract and the earlier contract dated August 3, 1957 they were entitled to remain in possession of the mining area.
584 The Suggestion was an atempt to add to the terms of the offer of September 2 1957.
On acceptance of the offer according to its terms the plaintiffs could not get a possessory right before execution of a conveyance of the mining lease.
In point of law, the Plaint was not an acceptance of the offer, not was it intended to be an acceptance.
It is not usual to accept a business offer by a plaint; nor is it usual to communicate an acceptance by serving a copy of the plaint through the medium of the Court.
We shall be straining the language of sections 2(6), 3 & 7 the Contract Act if we were to hold that the Plaint was an acceptance and that the service of a copy of the plaint along with the writ of summons was a communication of the acceptance.
Under the old chancery practice the mere filing of a bill in a suit to enforce specific performance was regarded as sufficient acceptance of the defendant 's offer unless the offer had been withdrawn before, the filing of the suit, see Boys vs Ayerst(1), Agar vs Biden(2), Fry on Specific Performance, 8th ed., article 306, page 142, Pomeroy on Specific Performance, 3rd ed., article It may well be doubted whether this rule can apply under our present practice and procedure.
A plaint in a suit for specific performance should allege a concluded contract, see the Code of Civil Procedure 1st Schedule Appendix A, Form No. 48.
The offer as well as the acceptance should Pr=& the institution of the suit.
However, the precise point does not arise in this case.
O.S. No. 46 of 1957 was not a suit for specific performance of the contract.
Before the present suit for specific performance of the contract was instituted, the offer had been withdrawn.
Counsel for the appellant relying on Bloxam 's Case(3) sub mitted that the communication of an acceptance was not necessary.
The argument is misconceived.
We have held that the plaint in O.S. No. 46 of 1957 was not an acceptance.
There was no other acceptance either oral or in writing.
Mere mental assent of the plaintiffs to the defendants proposal is not sufficient.
In the peculiar facts of Bloxam 's case a contract to take shares was concluded by an oral application for shares followed by allotment though no notice of allotment was given to the applicant.
, Ordinarily ' there is no contract unless there is an acceptance of the application for shares and the acceptance is communicated to the applicant, see In re: Pellatt 's Case(4) .
In the last case Lord Cairns, L.J. pointed out that Bloxam 's case turned on its own special facts.
Bloxam was orally in formed that if he did not receive an answer within a certain time he was to consider his application granted.
In the peculiar cir (1) 1822 .6 Madd. 316, 326= 1 2, 1115.
(3) ; (2) (4) 5 85 cumstances, Bloxam could be regarded as having dispensed with the necessity of the communication of the acceptance.
In the present case we are not concerned with a contract to take shares.
The defendant made an offer to assign a mining lease.
No acceptance was made or communicated to the defendant before hi withdrew the offer.
There was no concluded, contract and the appeal must fail on this ground.
The High Court held that the assignment of the mining lease could not be lawfully made without the sanction of the State Government and the approval of the Central Government and that as the governments concerned could not be compelled to accord the necessary sanction and approval, the contract to assign the mining lease could not be specifically performed and on this ground the High Court dismissed the suit.
We do not think it necessary to express any opinion on this question. 'Me appeal is liable to be dismissed in view of our conclusion.
that there was no concluded contract between the parties.
In the result, the appeal is dismissed.
The appellant will pay one set of costs to the respondents.
G.C. Appeal dismissed.

dataset_name: IN-Abs

summary:
Under a contract dated August 3, 1957 the defendant agreed to sell to the plaintiffs 40,000 tons of float iron lying in a mining area in the Hosadurgo Taluka in Mysore State, and gave, them a right to win and remove iron ore.
On September 2, 1957, the defendant wrote to the plaintiffs that further to the agreement dated August 3, 1957, he agreed to assign the said lease area of 184 acres for iron and manganese ores to the plaintiffs subject to their paying one lakh and eighty thousand rupees within three months.
The three months expired on November 6, 1957 without the offer being accepted by the plaintiffs orally or by letter.
On October 31, 1957 the defendant posted a letter to the plaintiffs revoking the offer, which reached them on November 6, 1957.
The plaintiffs instituted a suit (O.S. No. 55 of 1957) against the defendant alleging that by contract dated September 2, 1957 the defendant had agreed to assign to the plaintiffs his leasehold interest in the aforesaid 184 acres of land and claiming specific performance of the contract.
The trial court decreed the suit.
The defendant appealed to the High Court.
On the question whether the offer made in the defendant 's letter of September 2, 1957 had been accepted by the plaintiffs the High Court held that the plaintiffs had accepted the said offer in their plaint in another suit relating to the possession of the same land (O.S. No. 46 of 1957) a copy of which was served on the defendant on November 5, 1957 a day earlier than the defendant ' s letter revoking the offer reached the plaintiffs.
Despite this finding, on another ground, the High Court allowed the defendant appeal and dismissed the suit, namely, O.S. No. 55 of 1957.
The plaintiff appealed with certificate to this Court.
HELD : The appeal must be dismissed on the ground that there was no concluded contract between the parties.
[585 C D] The letter dated September 2, 1957 sent by the defendant to the plaintiffs, though worded as an agreement was in point of law an offer only.
The defendant was at liberty to revoke the offer at any time before its acceptance by the plaintiffs.
The defendant 's letter revoking the offer reached the plaintiffs on November 6. 1957.
Before that date the plaintiffs did not accept the offer either orally or by letter.
The High Court was wrong in holding that the plaintiffs accepted the offer by their plaint in O.S. No. 46 of 1957 and that this acceptance was communicated to the defendant before November 6, 1957.
[583 B B] Considering the contents of its relevant paragraphs the plaint in question was not in point of law an acceptance of the offer, nor was it intended to be an acceptance.
It is not usual to accept a business offer by a plaint; nor is it usual to communicate an acceptance by serving a copy 592 of the plaint through the medium of the Court.
To hold thus would be straining the language of s section 2(6), 3 and 7 of the Contract Act.
[585 A B] The old chancery practice under which the mere filing of a bill in a suit to enforce specific performance was regarded as sufficient acceptance of the defendant 's offer unless the offer had been withdrawn before the filing of the suit, cannot be applicable under the present Indian practice and procedure.
[585 C E] The argument based on Bloxam 's case that the communication of an assent was not necessary and mere mental assent of the plaintiffs to the defendant 's proposal was sufficient.
was misconceived.
[585 F] Boys vs Ayerst, ; , 326=56 E.R. 11 12, 1115, Agar vs Biden, and Bloxam 's case; , , distinguished.
In re : Pellatt 's case, , applied.


judgement:
Appeal No. 1378 of 1966.
Appeal from the judgment and order dated April 22, 1966 of the Assam and Nagaland High Court in Civil Rule No. 35 of 1963.
B. Sen and P.K. Ghosh, for the appellant.
Niren De, Attorney General, Naunit Lal and S.N. Chaudhury, for the respondents.
The Judgment of the Court was delivered by Ramaswami, J.
This appeal is brought by certificate from the judgment of the High Court of Assam and Nagaland, dated 198 April 22,: 1966 in Civil Rule No. 35 of 1963.
whereby the High Court by a majority judgment dismissed the writ petition filed by the appellant.
The land in dispute was originally located in the State of Mylliem in the Khasi and Jaintia Hills.
This land was leased out in perpetuity to the British Government by Khasi Land owners Thholyomawrie and U. Mongormawrie by a deed of lease executed on November 4, 1874.
On April 1, 1907 the Secretary of State for India on behalf of the British Crown made a settlement of the land with Capt.
E.M. Manley for 99 years on a premium of Rs. 716 8 9 and annual revenue of Rs. 35 13 3.
The ' document of lease was executed by the Deputy Commissioner, Khasi and Jaintia Hills.
On March 18, 1909 Capt.
Manley sold his right and title in the land to Messrs Jamatullah & Sons.
Subsequent to.
the sale Messrs Jamatullah & Sons constructed three houses on the land, known as 'Cedar Lodge ', 'Cryptomaria ' and 'Eldorado '.
The appellant is the successor of Messrs Jamatullah & Sons.
Out of the three buildings, the appellant has been living in 'Eldorado ' and the other two buildings have been given on rent to the Government of Assam.
'Cryptomaria ' is occupied by one of the Ministers of the Government of Assam and 'Cedar Lodge ' has been occupied by the offices of the Electricity Board.
Clause V of the lease in favour of Capt.
Manley reads as follows: "If the site, or any part of it, is required for public purposes (including the maintenance or alteration of public aqueducts), it may be resumed by Government.
In this case the lessee will be entitled to receive such compensation, calculated according to the spirit of the Land Acquisition Act, as fairly represents the actual value of the land and the buildings upon it.
The amount of the compensation shall be ,determined by the Deputy Commissioner subject to an appeal to the Commissioner.
" On September 18, 1959 the Deputy Commissioner of Khasi and Jaintia Hills served a notice of resumption on the appellant purporting to exercise the right of the Government under Clause V of the lease.
The appellant thereafter moved the High Court of Assam in Civil Rule No. 119 of 1959 challenging the validity of the order of resumption.
By a majority the High Court dismissed the writ petition flied by the appellant holding that rights and obligations springing from the contract of lease should be decided by the ordinary civil courts and it is not proper for the High Court to exercise its power under article 226 of the Constitution.
Soon after the decision of the High Court there was a proposal for a compromise between the parties and the Government agreed to 199 drop the resumption proceedings on certain terms and conditions.
But it was alleged that the appellant did not comply with the terms and conditions of the compromise proposal and a fresh order of resumption was, therefore, made by the Government on March 15, 1963 and a sum of Rs. 59,965/ was determined as compensation payable to the appellant.
The notice of resumption dated March 15, 1963 is the following effect: "ORDERS OF THE GOVERNMENT OF ASSAM REVENUE (SETTLEMENT) DEPARTMENT SETTLEMENT BRANCH Dated Shillong the 15th March WHEREAS a plot of land in Shillong measuring more or less 4.77 acres within the boundaries specified in the Schedule below was originally leased by the Secretary of State for India to Captain E.M. Manley by a deed of lease dated 9 12 1907 and mutated in the name of Sri Md. Haniff of Police Bazar, Shillong subject to the terms and conditions specified in the said deed of lease: AND WHEREAS the Governor of Assam is satisfied that it is necessary to resume the aforesaid plot of land with houses standing thereon for providing suitable accommodation to the Government Offices and the Minister of Government, which are hereby declared to be a public purpose.
Now, therefore, in exercise of powers conferred by by Clause V of the afore mentioned deed of lease, the Governor of Assam is pleased to resume the said plot of land and to direct the Deputy Commissioner United K.J. Hills to summarily re enter and take possession of the said plot of land on giving 7 days ' notice in writing to the lessee and thereafter pay such compensation, as may be payable in accordance with the provisions of clause V of the deed of lease or any other clause or clauses, as may be found applicable.
SCHEDULE North: The public aqueduct running alongside the Jowai Road and nulla running from the aqueduct into the Umshyrpi River near the Lachaumiere Estate South, East and West: The Umashyrpi River".
200 The forwarding note of the Deputy Commissioner reads as follows: L 14/7/2/62/24 Shri Md. Haniff, Police Bazar, Shillong Sub: Resumption of properties known as Cryptomaria, Eldorado.
and Cedar Lodge in Shillong.
I am to forward herewith a copy of order by the Government of Assam for resumption of Cryptomaria, Eldorado and Cedar Lodge properties for public purpose and to state that as ordered therein, possession of the land along with buildings and improvements made thereon, if any, will be taken over by me on the expiry of the period of 7 (seven) days from the date of receipt of this notice.
Illegible Deputy Commissioner You are offered an amount of Rs. 5,09,965.00 (Rupees five lakhs, nine thousand, nine hundred and sixty five) only being the total cost of resumption in respect of the above mentioned properties and the said amount will be paid to you within 31 3 63.
" The appellant thereafter filed another writ petition No. 35 of 1963 in the Assam High Court challenging the validity of the order of resumption on the ground that the land did not vest in the State of Assam and the Deputy Commissioner had no right to issue a notice under CL.
V of the lease.
It was also said that the public purpose had not been mentioned in the notice itself and, therefore, the notice was invalid.
In the counter affidavit the respondent contended that the petition was barred by the principle of res judicata in view of the previous judgment of the High Court dated February 26, 1960.
It was urged that in any event a petition under article 226 of the Constitution was not competent.
It was said that the property had been resumed lawfully in terms of CL.
V of the lease and the Government of Assam was competent to resume the land and the Deputy Commissioner was competent to issue a notice of resumption and the compensation offered was the proper compensation under the terms of the lease.
On April 22, 1966 the High Court dismissed the writ petition of the appellant holding that the case involved disputed questions of title, that the remedy of the appellant was to file a suit 201 in a civil court and a petition under article 226 of the Constitution was not maintainable.
On behalf of the appellant Mr. B. Sen stressed the argument that there was no disputed question of title involved in this case.
The title of the appellant as a grantee was not questioned on behalf of the respondent.
The only question at issue is whether the respondent was entitled to.
resume the land by virtue of C1.
V of the lease dated April 1, 1907 by the Secretary of State for India in favour of Capt.
Manley.
In our opinion there is justification for the argument put forward on behalf of the appellant.
On behalf of the respondent, however, the Attorney General referred to the decision of this Court in State of Orissa vs Ramchandra(1).
The material facts of that case are not parallel to those of the present case.
The question at issue in that case was whether the Maliahs having been granted by the ex Zamindars by virtue of the office they held under sanads and whether the grant was intended to serve as remuneration for services rendered by them by virtue of the said office.
The case of the State of Orissa was that the land was held by the ex Zamindars on service tenures which were resumable at the will of the grantor.
The contention of the ex Zamindars was that they had proprietary rights in the Maliahs and the State of Orissa had no right to resume the lands granted to them and were not entitled to recover possession from them.
It would thus be seen that the main dispute of the parties w*as in regard to the nature of the grant.
The distinction between grants of land burdened with service and grants of land made by way of remuneration attaching to the office created by them is well known.
In the first category of cases, the grant may not be resumable while in the second category of cases, with the abolition of the office the land can be resumed.
The parties in that case were at issue on the question about the character of the grants under which the predecessors of the ex Zamindars were originally granted the areas in question.
The material facts in the present case are quite different.
The title of the appellant as lessee under the lease executed by the Secretary of State for India on December 19, 1907 is not disputed and the High Court had, therefore, no justification in dismissing the writ petition of the appellant in limine on the ground that a disputed question of title was involved.
It is also not right to contend that the appellant was trying to enforce a mere contractual right by way of a writ petition under article 226 of the Constitution.
Several important issues of.
public law have been raised on behalf of the appellant.
In the first place it was argued that the State of Assam had no right to resume the property in dispute under C1.
V of the lease dated December 19, 1907 because the right of the British Government in respect of the lease has not devolved on or vested in the State, of (1) A.I.R. 1964 S.C. 685.
202 Assam under the relevant constitutional provision.
It was contended that even on the assumption that the right of the British Government under the lease of 1907 had devolved on the State of Assam the latter could only enforce its rights under the contract of lease and had no power to forcibly turn out the appellant from the property by mere executive action.
It was stressed on behalf of the appellant that the Executive authorities can only act in pursuance of the power given to them by law and cannot interfere with the liberty or property of the subject except on condition that they can support the legality of their action before a court of law.
It cannot be urged, therefore, that the appellant was merely attempting to enforce a contractual right by taking recourse to the machinery provided by article 226 of the Constitution.
It is true that the jurisdiction of the High Court under article 226 is an extraordinary jurisdiction vested in the High Court not for the purpose of declaring the private rights of the parties but for the purpose of ensuring that the law of the land is implicitly obeyed and that the various tribunals and public authorities are kept within the limits of their jurisdiction.
In other words, the jurisdiction of the High Court under article 226 is a supervisory jurisdiction, a jurisdiction meant to.
supervise the work of the tribunals and public authorities and to see that they act within the limits of their respective jurisdiction.
In a proceeding under article 226 the High Court is not concerned merely with the determination of the private rights of the parties; the only object of such a proceeding under article 226 is to ensure that the law of the land is implicitly obeyed and that various authorities and tribunals act within the limits of their respective jurisdiction.
Article 226 states that the High Court shall have power to issue to any person or authority, including in appropriate cases any Government, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari.
All these writs are known in English law as prerogative writs, the reason being that they are specially associated with the King 's name.
These writs were always granted for the protection of public interest and primarily by the Court of the King 's Bench.
As a matter of history the Court of the King 's Bench was held to be coram rege ipso and was required to perform quasi governmental functions.
The theory of the English law is that the King himself superintends the due course of justice through his own Court preventing cases of usurpation of Jurisdiction and insisting on vindication of public rights and protecting the liberty of the subjects by speedy and summary interposition.
That is the theory of the English law and as pointed out by this Court in Basappa vs Nagappa(1) our Constitution makers have borrowed the concep (1) 203 tion of prerogative writs from the English law and the essential principles relating to such prerogative writs are applicable in Indian law.
It is obvious that the remedy provided under article 226 is a remedy against the violation of the rights of a citizen by the State or statutory authority.
In other words, it is a remedy in public law.
But as already pointed out the appellant in the present case is not merely attempting to enforce his contractual right but important constitutional issues have been raised on behalf of he appellant.
For these reasons we hold that this appeal should be allowed and the judgment of the High Court dated April 22, 1966 in Civil Rule No. 30 of 1966 should be set aside and the case should be remanded to the High Court to be dealt with and disposed of in accordance with law.
It is desirable that the High Court should implead the Union of India as respondent to the writ petition.
It is also.
desirable that the High Court should give an opportunity to the parties to file further affidavits before finally disposing of the writ petition.
The parties will bear their own costs upto this stage.
Y.P. Appeal allowed.

summary:
The British Crown had leased a land for 99 ' years and the lease provided for resumption by the Government for public purpose.
The appellant had purchased the leasehold rights.
When the Deputy Commissioner on behalf of the respondent State served a notice of resumption on the appellant, he filed a petition under article 226 of the Constitution challenging the validity of the order of resumption on the grounds that the land did not vest in the State, the Deputy Commissioner had no right to issue the notice under the lease, and that the public purpose had not been mentioned in the notice, and so the notice was invalid.
The High Court dismissed the petition holding that the case involved disputed questions of title, that the remedy of the appellant was to file a suit and a petition under article 226 of the Constitution was not maintainable.
In appeal to this Court, the appellant contended that no disputed questions of title were involved as the title of the appellant as a grantee was not questioned by the State and the question at issue was whether the State was entitled to resume the land by virtue of the lease granted by the British Crown.
HELD: The judgment of the High Court had to be set aside.
The jurisdiction of the High Court under article 226 is an extraordinary jurisdiction vested not for the purpose of declaring private rights of the, parties but for the purpose of ensuring that the law of the land is implicitly obeyed and that the various tribunals and public authorities are kept within the limits of their jurisdiction.
The remedy provided under article 226 is a remedy 'against the violation of the rights of a citizen by the State or statutory authority.
In other words, it is a remedy in public law.
[202 C E] In the present case, the appellant was not merely attempting to enforce his contractual right but important constitutional issues were raised his behalf.
[203 B] State of Orissa vs Ramchandra, A.I.R. 1964 S.C. 865, distinguished.
Basappa vs Nagappa, , referred to. ,


judgement:
Appeal No. 944 of 1966.
Appeal by special leave from the judgment and order, dated March 30, 1 '965 of the Bombay High Court in Special Civil Application No. 5 of 1964.
M.C. Chagla and 1.
N. Shrog, for the appellant.
Ganpat Rai and R. Mahalingier, for respondent No. 1.
The judgment of the Court was delivered by Dua, J.
Pundalikrao Laxmanrao Suryawanshi plaintiff (respondent No. 1 in this Court) instituted arbitration proceedings in the Court of the Registrar 's Nominee against the Jalgaon District Central Co operative Bank Ltd., Jalgaon (appellant in this Court) for the recovery of a sum of Rs. 7,605/ as the balance of gratuity with interest at 6 per cent due from 18 8 1962.
The claim having been resisted, the same was disallowed on May 16, 1963.
An appeal presented to the Maharashtra State Co operative Tribunal under section 97 of the Maharashtra Co operative Societies Act against the award of the Registrar 's Nominee was dismissed and the said award was confirmed.
The Bombay High Court was thereupon approached by respondent No. 1 under Article 227 of the Constitution and the High Court allowing the application on July 17, 1965 set aside the orders made by the Co operative Tribunal and by the Registrars Nominee and directed the appellant Bank to pay to respondent No, 1 Rs. 7,605/ together with interest at 4 per cent per annum from June 19, 1963 up to date, The present appeal by special leave is directed against the order of the Bombay High Court.
Shri M.C. Chagla, the learned counsel for the appellant, concentrated his challenge to the impugned order on the ground that on July 19, 1962, when respondent No. 1 retired from service of the appellant Bank, there were no valid rules in force entitling him to the amount of gratuity claimed by him.
It was not disputed before us that respondent No. 1 had retired on July ' 19, 1962 after 32 years of service.
On retirement, he was paid a sum of Rs. 5,070/ by way of gratuity, but his claim in the present proceedings is for a further sum of Rs. 7,605/ .
194 Gratuity Fund Rules were sanctioned by the Board of Directors of the appellant Bank on August 17, 1957.
They were framed under the Bank 's bye laws.
These rules (thereafter called old rules) were forwarded to the Registrar of Co operative Societies for approval and they were approved with some modifications except Rules 6, 10 and 15 which were kept under consideration.
The principal argument pressed before us by Shri Chagla was that Rules 6 and to having not been approved by the Registrar, all the old rules must be deemed to have remained inoperative because these two rules form the real substratum of the scheme embodied in those rules Without these two rules, the remaining rules, according to the argument, cannot effectively operate.
We are unable to accept this submission.
It would be useful at this stage to reproduce old Rules 6,7, 9,10,15 and 16 which alone are suggested on behalf of the appellant to be relevant.
These Rules shall be deemed to have come into force (i.e. in respect of an employee retiring, resigning and/or having terminated his services) from the 1st July, 1953.
Every employee who has completed at least five years service shall be granted gratuity at the rate specified herein.
In case of retirement, resignation or termination of services gratuity shall be granted: (a) After five years but before completion of 10 years services : half month 's salary for each completed year of service.
(b) After 10 years but before completion of 16 years service : 'three fourth of a month 's salary for each completed year of service.
(c) After 15 years service three fourth of a month 's salary for each completed year of service, subject to the minimum of fifteen salaries.
Payment of the claims on account of the Gratuity payable under these Rules, shall be made within one month from the retirement, resignation, death or the termination of service.
The Bank shall contribute on 30th June, very year, or as soon as possible thereafter, but not later 195 than 30th September of the year, an amount not less than the amount contributed by the Bank as contribution to the Provident Fund.
11 to 14.
The provisions under sec.
41 of the Bombay Co operative Societies Act (Bombay Act V11 of 1925) as amended upto date shall be applicable to the administration of the 'Gratuity Fund ' created under these Rules.
The Board of Directors shall have.
powers, subject to the approval of the Registrar Co operative Societies Bombay State, Poona, to alter, add to, or repeal these rules from time to time, provided however that no such alteration, addition or repeal shall have any retrospective effect against the interest of the employee, in the employment of the Bank on that date.
" According to the appellant 's learned counsel, the Registrar having withheld approval of Rule 6, the last sentence of which provides that every employee who has completed at least 5 years ' service, shall be granted gratuity at the rate specified in the rules, there is no rule which imposes an obligation on the appellant Bank to pay gratuity.
This argument, in our opinion, ignores the express language of Rule 7 which, in unequivocal terms, requires gratuity to be granted in case of retirement, resignation or termination of service according to the rate specified therein.
Clause (a) of this rule contains a provision similar in effect to what the last sentence of Rule 6 directs.
Rule 9 also imposes an imperative obligation for the payment of gratuity under these rules within one month from the retirement, resignation, death or termination of service of the employee concerned.
Rule 10, which provides for contribution of the Bank towards the Gratuity Fund, was no doubt also kept under consideration and not approved by the Joint Registrar, but this too, in our view, does not render the remaining rules ineffective; nor does this fact by itself absolve the Bank of the obligation imposed on it by Rules 7, 8 and 9.
The contention that without there being a Gratuity Fund, the Bank cannot lawfully pay gratuity assumes that the Bank hag no other resources out of which its liabilities under the Rules in question can be discharged an assumption which is not easy to upheld.
Once the Gratuity Fund Rules imposing an obligation on the Bank to pay gratuity to its employees are approved by the Registrar, then this obligation, in our opinion, cannot be rendered nugatory merely because there is no separate Gratuity Fund.
Rule 15 which provides for the applicability of section 41 of the Bombay Co operative Societies Act VII of 1925 to the "administration of 196 the Gratuity Fund" created under the rules in question, does not touch the question of the enforcement of these rules, and indeed even on behalf of the appellant, no attempt has been made to rely on Rule 15 for this purpose.
The appellant 's counsel next relied on the new rules which were approved by the Joint Registrar of Co operative Societies and were made retrospective in their operation so.
as to be enforceable with effect from July 1, 1953.
It was, however, conceded by Shri Chagla and, in our opinion, rightly, that the new rules could not detract from or prejudicially affect the vested rights created under the old rules.
Indeed old Rule 16, it may be recalled, prohibits the retrospective operation of the new rules with the object of protecting the interests of the employees.
The submission that the old rules have neither been repealed, nor altered, as contemplated by Rule 16, and that the Registrar has merely withdrawn his approval to the old rules and enforced the new ones, does not advance the appellant 's case.
The effect of old rule 16, in our opinion, cannot be negatived by describing the process as mere withdrawal of the approval of the old rules and enforcement of the new ones, for in real substance the process seems to us to be covered by Rule 16.
The appeal accordingly fails with no order as to costs.
G.C. Appeal dismissed.

summary:
Respondent No. 1 retired from the service of the appellant bank on July 19, 19 '62 after 32 years of service.
Under the Bank 's bye laws Gratuity Fund Rules were sanctioned by the Board of Directors on August 17, 1957.
These rules were forwarded to the Registrar of Cooperative Societies for approval and they were 'approved with some modification except Rules 6, 10 and 15.
On his retirement Respondent No. 1 was paid a sum of Rs. 5,070/ as gratuity.
He instituted arbitration proceedings in the Court of the Registrar 's Nominee for a further sum of Rs. 7,605/as balance of gratuity payable to him with interest at 6 per cent.
The claim was disallowed and an appeal before the Maharashtra State Cooperative Tribunal 'also failed.
The High Court however in a petition under article 227 of the Constitution allowed the respondent 's claim.
The Bank appealed to this Court.
It was urged on behalf of the appellant (i) that Rule 6, the last sentence of which provides for the grant of gratuity and RuIe 10 which provides for contributions by the Bank to the Gratuity Fund not having been approved by the Registrar, there remained no basis for the claim of gratuity by respondent No. 1; (ii) that the old rules had neither been repealed nor altered and the effect of retrospective operation of the new rules was that the Registrar had withdrawn his approval to the old rules and enforced the new ones.
HELD: (i) The argument that r. 6 not having been approved there was no rule under Which the obligation to pay gratuity arose ignored the express language of r. 7 which, in unequivocal terms requires gratuity to be granted in case of retirement.
resignation or termination of services according to the rate specified therein.
Clause (a) of this rule contains a provision similar in effect to what the last sentence of r. 6 directs.
Rule 9 also imposes an imperative obligation for the payment of gratuity under these rules within one month from the retirement.
resignation, death or termination of service of the employee concerned.
[195 D F] (ii) The non approval of r. 10 by the Registrar also could not make the other rules ineffective and could not absolve the Bank of the obligation imposed on it by rr. 7, 8 and 9.
Once the Gratuity Fund Rules imposing an obligation on the Bank to pay gratuity to its employees are approved by the Registrar, then this obligation cannot be rendered nugatory merely because there is no separate Gratuity Fund.
[195] 193 It was conceded that the new rules could not detract from or prejudicially affect the vested rights created under the old ' rules.
Old Rule 16 expressly prohibits the retrospective operation of the new rules with the object of protecting the interests of the employees.
The effect of old r. 16 cannot be negatived by describing the process as mere withdrawal of the approval of the old rules and enforcement of the new ones.
[196 B D]