judgement:
l Appeal No. 1972 of 1983 From the Judgment and Order dated 22.11.83 of the Calcutta High Court in Civil Rule No. 10933 W of 1983 and order issuing contempt notice dated 3.2.84 being Civil Rule No. 571 W of 1984.
Milon K. Banerjee, Additional Solicitor General, A.K. Ganguli and R.N. Poddar for the appellants.
Soli J. Sorabjee, Mrs. Manik Karanjawala, Ratan Karanjawala, Kuldeep Pablay, Sumit Kachawha and Dr. Roxana Swamy for the respondents.
A.Subba Rao for STC.
The Order of the Court was delivered by CHINNAPPA REDDY J.
We grant special leave and proceed to dispose of the appeal.
M/S. Oswal Woollen Mills Limited having its registered office at Ludhiana in the State of Punjab and a branch office at Calcutta, and Narayan Das Jain, Secretary of the Company have filed a writ petition in the Calcutta High Court seeking various reliefs against the Union of India (through the Secretary, Ministry of Commerce, New Delhi), the Chief Controller of Imports and Exports, New Delhi, the Deputy Chief Controller of Imports and Exports, Amritsar, the Collector of Customs, Calcutta and the State Trading Corporation of India, New Delhi.
The primary prayer in the writ petition is to prevent or to quash an apprehended or purported action under clause 8 B of the Import Control Order.
All the other reliefs sought in the writ petition revolve round the principal relief regarding clause 8 B of the Import Control Order.
The other prayers are either ancillary or incidental to the principal prayer or are of an interlocutory character.
Having regard to the fact that the registered office of the company is at Ludhiana and the principal respondents against whom the primary relief is sought are at New Delhi, one would have expected the writ petition to be filed either in the High Court of Punjab and Haryana or in the Delhi High Court.
The writ petitioners however have chosen the Calcutta High Court as the forum perhaps because one of the interlocutory reliefs which is sought is in respect of a consignment of beef tallow which has arrived at the 345 Calcutta Port.
An inevitable result of the filing of writ petitions elsewhere than at the place where the concerned offices and the relevant records are located is to delay prompt return and contests We do not desire to probe further into the question whether the writ petition was filed by design or accident in the Calcutta High Court when the office of the Company is in the State of Punjab and all the principal respondents are in Delhi.
But we do feel disturbed that such writ petitions are often deliberately filed in distant High Courts, as part of a manoeuvre in a legal battle, so as to render it difficult for the officials at Delhi to move applications to vacate stay where it becomes necessary to file such applications.
More about this later.
It appears that an order under clause 8 B of the Import Control Order had been made against the company on November 9, 1983, but the writ petition was filed as if the order was in the offing and might be made at any time.
The writ petition was apparently filed in professed or real ignorance of the order made under clause 8 B of the Import Control Order.
On November 22, 1983, a learned single judge of the Calcutta High Court issued a rule Nisi and granted an interim order in the following terms.
"There will be an interim order of stay/injunction in terms of prayers (j), (k), (I) and (n) of the writ petition till the disposal of the rule.
Liberty is given to the respondents to apply for vacation or variation".
The rule was made returnable on January 31, 1984.
Prayers (j),(k)(I) and (n) of the petition were for the grant of: "(J) Injuction restraining the respondents their servants and/or agents from filing any criminal complaint against the petitioners or any of its director or employees from initiating any departmental proceedings under the Import and Export (Control) Act, 1947 and Import (Control) Order, 1955 against the petitioners or any of its Directors of Employees till the disposal of the Rule; (k) Injuction restraining the respondents from issuing an order of abeyance under clause 8 B of the Import Control 346 Order, 1955 and/or from taking any action under such order of abeyance till the disposal of the rule; (1) Mandatory order directing the respondent No.5 Collector of Customs to permit the petitioners to re export the consignment of inedible Beef Tallow in terms of I.T.G. Public Notice No.37 of 1983 dated 1.9.83 with respect to the consignment weighing 456.316 MT which is lying at Calcutta under section 49 of the Customs Act; (n) An order that pending the hearing and final disposal of this writ petition the petitioners be permitted to re ship and/or re export the consignment of 456.216 MT of inedible Beef Tallow which arrived at Calcutta as more particularly mentioned in Annexure `I." It is obvious that the interim order is of a drastic character with a great potential for mischief.
The Principal prayer in the writ petition is the challenge to the order made or proposed to be made under clause 8 B of the Import Control order.
The interim order in terms of prayers (j) and (k) has the effect of practically allowing the writ petition at the stage of admission without hearing the opposite parties.
While we do not wish to say that a drastic interim order may never be passed without hearing the opposite parties even if the circumstances justify it, we are very firmly of the opinion that a statutory order such as the one made in the present case under clause 8 B of the Import Control order ought not to have been stayed without at least hearing those that made the order.
Such a stay may lead to devastating consequences leaving no way of undoing, the mischief Where a plenitude of power is given under a statute, designed to meet a dire situation, it is no answer to say that the very nature of the power and the consequences which may ensure is itself a sufficient justification for the grant of a stay of that order, unless, of course, there are sufficient circumstances to justify a strong prima facie inference that the order was made in abuse of the power conferred by the statute.
A statutory order such as the one under clause 8 B purports to be made in the public interest and unless there are even stronger grounds of public interest an exparte interim order will not be justified.
The only appropriate order to make in such cases is to issue notice of the respondents and make it returnable within a short period.
This should particularly be so where the offices of the principal respondents and relevant records lie outside 347 the ordinary jurisdiction of the court.
To grant interim relief straight away and leave it to the respondents to move the court to vacate the interim order may jeopardise the public interest.
It is notorious how if an interim order is once made by a court, parties employ every device and tactic to ward off the final hearing of the application.
It is, therefore, necessary for the courts to be circumspect in the matter of granting interim relief, more particularly so where the interim relief is directed against orders or actions of public officials acting, in discharge of their public duty and in exercise of statutory powers.
On the facts and circumstances of the present case, we are satisfied that no interim relief should have been granted by the High Court in the terms in which it was done.
Orders under clause 8 B of the Import Control order, similar to the one made against Oswal Woollen Mills Limited, were made against various import export houses and others.
Some of these orders have been questioned by the affected parties in different High Courts and, in some cases, interim orders have also been obtained.
One such writ petition filed by Liberty Oil Mills Pvt.
Limited has been transferred to this court from the Bombay High Court at the instance of the Union of India.
The case is now pending in this Court and has in fact been heard in part by this vary Bench.
Apparently, under the impression that the questions at issue will be finally determined by this court in the case of the Liberty oil Mills, the Union of India and the other authorities do not seem to have moved expeditiously to contest the writ petitions filed in the High Courts and to have the interim orders vacated.
In the present case, an application to vacate the interim order was filed in the Calcutta High Court on February 1, 1984.
In the meanwhile, oswal Woollen Mills Limited went on writing letters and sending telegrams complaining that the interim orders of the High Court had not been obeyed and threatening action for contempt of Court.
On January 6, 1984, an application to commit the Chief Controller of Imports and Exports and others for contempt of court was filed by the company.
Notice to the respondents was ordered on the same day and on February 3, 1984, overruling the request made on behalf of the respondents that the petition to vacate the interim order may be heard first, the High Court issued a rule in the application for contempt of court against the Chief Controller of Imports & Exports and the Deputy Chief Controller of Imports and Exports and directed them to appear in person on March 6, 1984, Thereupon the Union of India, the Chief Controller of Imports & Exports, etc.
348 have filed the present special leave petition against the interim order dated November 22, 1983 of the Calcutta High Court in Civil Rule No.10933 W of 1983 and the rule for contempt of court issued on February 3, 1984 in Civil Rule No. 571 W of 1984.
We have heard Shri Milon Banerjee, learned Additional Solicitor General for the petitioners and Shri Soli Sorabjee, learned senior Advocate for the respondents.
We have already mentioned that the High Court was not right in granting interim relief in the terms in which it had done so.
We, therefore, vacate the interim order dated November 22, 1983 made by the Calcutta High Court.
It has been pointed out to us that the Chief Controller of Imports & Exports has himself issued a Public Notice dated 1st September, 1983 permitting re shipment/re export of import consignment which could not be cleared consequent upon the Ministry of Commerce Import Trade Control order No 27/83 dated the 24th August, 1983.
The Public Notice empowers the customs authority to allow re shipment/re export having regard to the extent to which foreign exchange spent on import will be earned back and subject to such other conditions relating thereto as the Customs authority may impose.
We wish to make it clear that the vacating of the interim order will not disentitle the writ petitioners from seeking and taking advantage of the public notice dated September 1, 1983.
In regard to the rule for contempt of court, we find it difficult to sustain the same.
Though ordinarily we would have left the matter to be decided by the High Court, we think it unnecessary to do so in the present case having regard to the elaborate arguments addressed to us by both parties.
The complaint of the writ petitioners in seeking the rule for contempt of court was that the authorities had not dealt with their applications for licences, etc.
despite the `abeyance ' order having been stayed.
It is obvious that the stay of the operation of the `abeyance ' order merely meant that the writ petitioners were entitled to have their applications disposed of by the concerned authorities.
The High Court not having set any limit of time for the disposal of the applications, it was not for the writ petitioners to impose a time limit and demand that their applications should be disposed, of forthwith.
If the writ petitioners were aggrieved by the failure of their authorities to dispose of their applications expeditiously, it was open to them to seek a further direction from the court to fixing a limit of time within which the 349 applications were to be disposed of.
We fail to see how the Chief Controller of Imports & Exports or the Deputy Chief Controller of Imports & Exports could be said to have committed any contempt of court, even prima facie, by their mere failure to take action in the matter of the disposal of the applications of the writ petitions.
In the circumstances, we perceive the application to commit the authorities for contempt of court to be a device to exact licences from them.
We accordingly allow the appeal, vacate the interim order dated November 22, 1983 of the Calcutta High Court in Civil Rule No. 10933 W of 1983 and quash the rule for contempt of court issued on February 3, 1984 in Civil Rule No. 571 W of 1984.
Before we part with the case, we may refer to a statement made by Shri J.P. Sharma, Deputy Chief Controller of Imports and Exports, New Delhi in the affidavit filed by him before us to the effect that `in the larger public interest Government was unable to obey the interim order and had taken the question to this Hon 'ble Court which is pending decision shortly '.
Torn out of the context in which it was made, the unhappy language in which it has been expressed is suggestive of contumaciousness on the part of J.P. Sharma.
However, he has filed further affidavits before us explaining the context in which the statement was made and expressing his unqualified regret.
We accept his explanation and expression of regret.
We are satisfied that Shri J.P. Sharma did not mean what the language employed by him suggested.
However, we do wish to express our disapproval of the language employed which is certainly suggestive of contumaciousness.
N.V.K. Appeal allowed.

dataset_name: IN-Abs

summary:
The respondents filed a writ petition in the High Court of Calcutta against an order made under Clause 8 B of the Import Control order 1955, in respect of a consignment of beef tallow which arrived at the Calcutta Port.
A Single Judge issued a rule and granted an interim order restraining the Union of India and the Chief Controller of Imports and Exports from filing any criminal complaint against the respondent firm or its Directors and also a direction to permit the respondents to re export the consignment of tallow.
An application was made by the Union of India to vacate the interim order.
In the meanwhile the respondents sent letters and telegrams to the department intimating that the interim order of the High Court had not been obeyed, and threatening action for contempt of Court.
An application to commit the Chief Controller of Imports and Exports, and others for contempt of court was filed by the company.
Over ruling the request made on behalf of the Department to vacate the interim order, the court issued a rule in the application for contempt and directed the Department officials to appear in person.
Being aggrieved by the order, the Department filed a Special Leave Petition against the interim order and the rule for contempt.
Allowing the appeal, vacating the interim order and quashing the rule for contempt of Court; ^ HELD: 1.
Writ petitions are often deliberately filed in distant High Courts, as part of a manoeuvre in a legal battle, so as to render it difficult for 343 the officials at Delhi to move applications to vacate stay where it becomes necessary to file such applications.
An inevitable result of the filing of writ petitions elsewhere than at the place where the concerned offices and the relevant records are located is to delay prompt return and contest.
[345B C, A] In the instant case the writ petition was filed in the Calcutta High Court when the office of the company is in the State of Punjab and all the principal respondents are in Delhi.
A statutory order such as the one under Clause 8 B of the Import Control Order purports to be made in the public interest and unless there are even stronger grounds of public interest an ex parte interim order will not be justified.
The only appropriate order to make in such cases is to issue notice to the respondents and make it returnable within a short period.
This should particularly be so where the offices of the principal respondents and relevant records lie outside the ordinary jurisdiction of the Court.
To grant interim relief straight away and leave it to the respondents to have the interim order vacated may jeopardise the public interest.
[346G 347A] 3.
If an interim order is once made by a court, parties employ every device and tactic to ward off the final hearing of the application.
It is therefore, necessary for the courts to be circumspect in the matter of granting interim relief, more particularly so where the interim relief is directed against.
orders or actions of public officials acting in discharge of their public duty and in exercise of statutory powers.
[347B] In the instant case, no interim relief should have been granted by the High Court.
The interim order is of a drastic character with a great potential for mischief and has the effect of practically allowing the writ petition at the stage of admission without hearing the opposite parties.
[347C, 346D] 4.
The application to commit the authorities for contempt of court appears to be a device to exact licences from them.
[349B] In the instant case, the stay of the operation of the 'abeyance ' order merely meant that the writ petitioners were entitled to have their applications disposed of by the concerned authorities.
The High Court not having set any limit of time for the disposal of the applications, it was not for the writ petitioners to impose a time limit and demand that their applications should be disposed of forthwith.
If the writ petitioners were aggrieved by the failure of the authorities to dispose of their applications expeditiously, it was open to them to seek a further direction from the court fixing a limit of time within which the applications were to be disposed of.
[348G 349A] 344


judgement:
Civil Appeal No. 2736 of 1972.
From the Award dated the 31st December, 1971 of the Central Govt Labour Court Bombay in application No. L.C.B. 326 of 1969.
Harbans Lal, N. section Das Bahl and R. N. Poddar for the appellants.
V. M. Tarkunde, K. Shivraj Choudhary and K. R. Choudhary for the respondents.
The Judgment of the Court was delivered by 294 TULZAPURKAR, J.
The only point raised by counsel for the Appellants in this appeal is whether the respondents who are employees working in the Factory of India Security Press, Nasik are entitled to over time wages at twice the normal rate of their wages under section 59 of the read with section 70 of the Bombay Shops and Establishments Act, 1948 and the question depends upon the true construction of section 70 of the latter Act.
Since in our view the question of proper construction of the said section 70 is concluded by a decision of this Court in Shri B.P. Hira, Works Manager, Central Railway, Parel, Bombay, etc.
vs Shri C.M. Pradhan etc.(1) it is unnecessary to indulge in any elaborate statement of facts or discussion of all the rival contentions that were urged before the Central Government Labour Court Bombay, whose decision rendered on December 31, 1971 is challenged in this appeal.
Briefly stated the admitted facts are: The India Security Press, Nasik is a very big establishment of the Central Government headed by the General Manager, who is also known as Master, India Security Press.
Apart from administrative offices it has a factory.
The Press has four wings, namely, (a) the stamp press, (b) currency note press, (c) new currency note press and (d) central stamp stores.
There are various categories of workers who have been classified into two groups such as (1) employees working in the administrative offices and (2) those working in the factory.
The 78 respondents, belonging to all the four wings, have been employees working in the factory (of these, R 1 to R 3 are Chief Inspectors (Control); R 4 to R 36 are Inspectors (Control); R 37 & R 38 are Senior Supervisors; R 39 to R 52 are Supervisors; R 53 to R 77 are Junior Supervisors and R 78 is a Store Keeper).
These 78 Respondents filed an application against the Appellants before the Central Government Labour Court, Bombay under section 33C (2) of the claiming over time wages under section 59 of the .
read with section 70 of the Bombay Shops and Establishments Act.
Their case was that though the normal working period for all those who were working under the roof of the factory was 44 hrs.
per week, they were, along with the regular factory workers, required to work for more than 44 hrs.
a week but the management had been causing loss to them by paying them, unlike the factory workers, over time wages at the basic rates even for work done beyond 44 hrs.
whereas they were entitled to over time wages 295 at double the rate of their normal wages (inclusive of dearness allowance, etc.), and as such they were entitled to get the amount of difference ascertained, computed and paid to them; and they claimed this relief in respect of overtime work done during the past 12 years i.e. from 1 1 1956 to 30 8 1968.
Along with the application they gave a detailed schedule and the particulars of their claim totalling to an amount of Rs. 7,00,000 and odd.
This claim was resisted by the Appellants on several grounds but we need mention only those grounds which have a bearing on the only point that was raised and argued before us by counsel for the appellants.
Inter alia it was contended that none of the Respondents was a 'worker ' under section 2 (i) of the and as such they were not entitled to the benefit of section 59 of that Act read with section 70 of the Bombay Shops and Establishments Act, 1948.
It was further contended that even assuming that the respondents were entitled to claim the benefit of the section 59 read with the section 70 notwithstanding that none of them was a worker, by reason of Rule 100 made by the State Government in exercise of its powers under section 64 of the , section 59 became inapplicable to the Respondents and therefore could not be availed of by them inasmuch as quite a substantial number of them fell within the category of person who had been "defined or declared to be holding positions of supervision or management or being employed in a confidential position in the factory." In other words.
quite a large number of the Respondents fell within the exempted category under section 64 read with Rule 100 framed by the State Government and, therefore, the benefit of section 59 was not available to them.
It was further urged that none of the Respondents was an industrial employee, i.e. 'a workman ' within the meaning of section 2 (s) of the and as such their application under section 33C (2) of that Act was not maintainable.
The Central Government Labour Court, Bombay negatived the first two contentions in view of the decision of this Court in the case of B.P. Hira vs C.M. Pradhan (supra) and as regards the third contention on an appreciation of the oral and documentary evidence led by the parties, it came to the conclusion that all respondents holding the posts of Chief Inspectors (Control) (R 1 to R 3), Inspectors (Control) (R 4 to R 36), Junior Supervisors (R 53 to R 57) and Store Keeper (R 78) having regard to the nature of duties and functions performed by them were industrial employees i e. workmen under the and as such were entitled to the relief claimed by them but as 296 regards the respondents who were holding the posts of Senior Supervisors (R 37 and R 38) and Supervisors (R 39 to R 5) not being workmen under the were not entitled to the relief claimed, of course, they were denied the relief only for the period during which they were holding those posts.
This decision is challenged in the appeal.
As stated earlier, the validity or otherwise of the first two contentions that were urged before the Labour Court and reiterated before us by Counsel for the appellants depends upon the proper construction of s.70 of the Bombay Shops and Establishments Act, 1948 and in order to appreciate both the contentions it will be necessary to set out section 59, section 64 together with Rule 100 of the and section 70 of the Bombay Shops and Establishments Act, 1918 Sections 59 and 64 occur in Chapter VI of the and the material portions thereof run thus: "59.
Extra Wages for overtime. (1) Where a worker works in a factory for more than nine hours in any day or for more than forty eight hours in any week, he shall, in respect of overtime work be entitled to wages at the rate of twice his ordinary rate of wages.
" "64.
Power to make exempting rules, (1) The State Government may make rules defining the persons who hold positions of supervisions or management or are employed in a confidential position in a factory, or empowering the Chief Inspector to declare any person, other than a person defined by such rules, as a person holding position of supervision or management or employed in a confidential position in a factory if, in the opinion of the Chief Inspector, such person holds such position or is so employed and the provisions of this Chapter, other than provisions of clause (b) of sub section (1) of section 66 and of the proviso to that sub section, shall not apply to any person so defined or declared: Provided that any person so defined or declared shall, where the ordinary rate of wages of such person does not exceed rupees seven hundred and fifty per month, be entitled to extra wages in respect of overtime work under section 59.
" Rule 100 framed under section 64 runs thus: 297 "Persons defined to hold positions of supervision or management or confidential position.
The following persons shall be deemed to hold position of supervision or management or to be employed in a confidential position in a factory (a) All persons specified in the Schedule annexed hereto.
(b) Any other person who, in the opinion of the Chief Inspector, holds a position of supervision or management or is employed in a confidential position.
Schedule List of persons defined to hold positions of supervision or management in factories: Manager Assistant Manager . . .
Departmental Heads and Assistants . .
Head Store Keepers and Assistants Technical Experts.
" Section 70 of the Bombay Shops and Establishments Act, 1948 runs thus: "70.
Persons employed in factory to be governed by and not by this Act.
Nothing in this Act shall be deemed to apply to a factory and the provisions of the shall, notwithstanding anything contained in that Act, apply to all persons employed in and in connection with a factory: Provided that, where any shop or commercial establish 298 ment situate within the precincts of a factory is not connected with the manufacturing process of the factory the provisions of this Act shall apply to it: Provided further that, the State Government may, by notification in the official Gazette, apply all or any of the provisions of the to any shop or commercial establishment situate within the precincts of a factory and on the application of that Act to such shop or commercial establishment, the provisions of this Act shall cease to apply to it.
" Counsel for the appellants urged that the respondents, though employed in the factory of the Press, were not 'workers ' within the meaning of section 2 (1) of the and therefore were not entitled to the benefit of section 59 of that Act read with section 70 of the Bombay Shops and Establishments Act, 1948.
On the plain language of sec.
70 of the Bombay Shops and Establishments Act this contention has to fail.
We are concerned not with either of the provisos but with the main provision of section 70 which consists of two parts; the first part states that if there be a factory the Shops and Establishments Act will not apply and the second part states that to such a factory "the provisions of the shall, notwithstanding anything contained in that Act, apply to all persons employed in or in connection with a factory.
" Clearly, the portion underlined (the non obstante clause and the phrase 'all persons employed ') has the effect of enlarging the scope of by making it applicable to all persons employed in such factory irrespective of whether employed as workers or otherwise.
Therefore although the respondents have not been 'workers ' within the meaning of sec.
2 (1) they will get the benefit of sec.
This identical question arose for consideration before this Court in the case of B.P. Hira vs C.M. Pradhan (supra).
In that case Shri C.M. Pradhan and other respondents were employed as time keepers in the time office of the Central Railway Workshop and Factory, Parel, Bombay and they had claimed over time wages under s.59 of the first on the basis that they were 'workers ' within the meaning of s 2(1) of that Act and alternatively on the basis that assuming they were not 'workers ' within the meaning of section 2(1) of that Act, they were entitled to claim overtime wages under s.59 of the read with s.70 of the Bombay Shops and Establishments Act, 1948.
The validity of the 299 claim on both the grounds was disputed by the appellant (Works Manager).
The Authority under the Payment of Wages Act found that only four of the respondents, who were required to do the work of progress time keeper, could claim the status of 'workers ' within the meaning of section 2(1) of the and the rest were merely employees of the workshop, but accepted the alternative case 'made by the respondents and held that each of the respondents was entitled to get the over time wages under sec.
59 read with sec.
70 and this Court upheld the view of the Authority and confirmed its decision.
The Court 's view on the proper construction of section 70 of the Bombay Shops and Establishments Act 1948 has been succinctly summarized in the second head note, which appears at page 137 of the report, which runs thus: "On a proper construction of section 70 of the Act it is clear that the first part of the section excludes a factory and its employees from the operation of the Act; but the second part makes the relevant provisions of the applicable to them.
The non obstante clause in the section shows that the employees in a factory, although they might not be workers within the meaning of section 2(1) of the , are entitled to claim overtime wages as provided for by that Act." Apart from the fact that the decision is binding on us, we are in respectful agreement with the construction placed by it on section 70 of the Act.
The first contention has, therefore, to be rejected.
Counsel for the appellants next urged that the effect of section 70 as indicated by the aforesaid decision is that it makes the provisions of the applicable to all persons (irrespective of their capacity) employed in a factory but the provisions of the Act include section 64 (occurring in the same Chapter VI) which gives power to the State Government to make exemptions and it is under section 64 that Rule 100 has been framed by the State Govt.
under which the employees specified in the Schedule to the Rule have been excluded from the purview of section 59 of that Act and since in the instant case a substantial number of the respondents fall within the exempted category (Departmental Heads and Assistants) and Head Storekeepers and Assistant they would not be able to claim overtime wages under section 59 of that Act read with section 70 of the Bombay Shops and Establishments Act.
In other words, counsel contended that section 59 must, be read with section 64 of the and because of Rule 100 framed under section 64, section 59 becomes inapplicable to the respondents 300 falling within the exempted categories On the other hand, counsel for the respondents urged that the non obstante clause has the effect of keeping out of the way the exemption provisions, namely, section 64 read with Rule 100 and according to him such effect must follow from the ratio of this Court 's decision in case of B.P. Hira vs C.M. Pradhan (supra) and the Labour Court had rightly taken the view that because of the non obstante clause the respondents ' right to claim benefit of overtime wages under s 59 read with section 70 was not affected by the framing of rule 100 by the State Government in exercise of the power conferred on it under section 64.
Section 70, so far as is relevant, says "the provisions of the shall, notwithstanding anything contained in that Act, apply to all persons employed in and in connection with a factory".
It is well known that a non obstnte clause is a legislative device which is usually employed to give over riding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions.
Thus the non obstante clause in section 70, namely, "notwithstanding anything in that Act" must mean notwithstanding anything to the contrary contained in that Act and as such it must refer to the exempting provisions which would be contrary to the general applicability of the Act.
In other words, as all the relevant provisions of the Act are made applicable to a factory notwithstanding anything to the contrary contained in it, it must have the effect of excluding the operation of the exemption provisions.
Just as because of the non obstante clause the Act is applicable even to employees in the factory who might not be 'workers ' under sec.
2(1), the same non obstante clause will keep away the applicability of exemption provisions qua all those working in the factory.
The Labour Court, in our view, was, therefore, right in taking the view that because of the non obstante clause section 64 read with Rule 100 itself would not apply to the respondents and they would be entitled to claim overtime wages under section 59 of that Act read with section 70 of the Bombay Shops and Establishments Act, 1948.
Counsel for the appellants pointed out that if such construction was placed on section 70 it will lead to an anomalous situation that even employees of a factory occupying positions of a Manager or a General Manager would become entitled to overtime wages which could not have been the intention of the State Legislature, but that, in our view, is a matter of the State Legislature and not for the Court but it must be pointed out that since 301 the rendering of the aforesaid decision by this Court in 1960 the State Legislature has not intervened, which perhaps suggests that the State Legislature is not keen to limit the operation of the non obstante clause in any manner.
The second contention must also fail.
Counsel for the appellants made a feeble attempt to contend that not merely such of the respondents who were holding the posts of Senior Supervisors and Supervisors were not industrial employees but all the other respondents were also not industrial employees i.e. were not workmen under the .
In the first place, the contention depends upon the appreciation of evidence led by the parties on the nature of duties and functions performed by the concerned respondents and it was on an appreciation the entire material that the Labour Court recorded a finding that having regard to the nature of their duties and functions all respondents, other than those who were holding the post of Senior Supervisors and Supervisors, were industrial employees, i.e. workmen under the and it is not possible for this Court to interfere with such a finding of fact recorded by the Labour Court.
Even otherwise after considering some of the important material on record through which we were taken by counsel for the appellants, we are satisfied that the Labour Court 's finding is correct.
In the result the appeal fails and is dismissed but there will be no order as to costs.
H.S.K. Appeal dismissed.

summary:
The respondents who were working in different capacities in the factory of India Security Press at Nasik, an establishment of the appellant, filed an application before the Central Government Labour Court, Bombay under section 33 C(2) of the claiming overtime wages at double the ordinary rate of wages under section 59 of the Factories Act read with section 70 of the Bombay Shops and Establishments Act, 1948.
The Labour Court dismissed the contentions of the appellant and granted relief.
Hence this appeal.
Dismissing the Appeal ^ HELD: The contention that the respondents were not workers within the meaning of section 2(1) of the Factories Act and therefore not entitled to the benefit of section 59 of that Act read with section 70 of the Bombay Shops and Establishments Act 1948 must fail on the plain language of section 70.
The main provision of section 70 which is relevant consists of two parts; the first part states that if there be a factory the Shops and Establishment Act will not apply and the second part states that to such a factory 'the provisions of the Factories Act shall, notwithstanding anything contained in that Act, apply to all persons employed in or in connection with the factory".
Clearly, the underlined portion (the non obstante clause and the phrase 'all persons employed ') has the effect of enlarging the scope of Factories Act by making it applicable to all persons employed in such factory irrespective of whether employed as workers or otherwise.
Therefore although the respondents have not been 'workers ' within the meaning of section 2(1) they will get the benefit of section 59.
[298 C F] B.P. Hira, Works Manager, Central Railway, Parel, Bombay, etc.
vs C.M. Pradhan etc ; referred to.
The contention that by reason of rule 100 made by the State Govern 293 ment under section 64 of the Factories Act the benefit under section 59 was not available to the respondents falling within the exempted category by reason of their holding posts of supervision, has no force.
[300F and 295E] It is well known that a non obstante clause is a legislative device which is usually employed to give over riding effect to certain provision over some contrary provision that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions.
Thus the non obstante clause in section 70, namely, "notwithstanding anything to the contrary contained in that Act and as such it must refer to the exempting provisions which would be contrary to the general applicability of the Act.
Just as because of the non obstante clause the Act is applicable even to employees in the factory who might not be workers ' under section 2(1), the same non obstante clause will keep away the applicability of exemption provisions quarrel those working in the factory The Labour Court was therefore right in taking the view that because of the non obstante clause s 64 read with Rule 100 itself would not apply to the respondents and they would be entitled to claim overtime wages under section 59 of that Act read with section 70 of the Bombay Shops and Establishments Act, 1948.
[300 C G] The contention that the respondents were not workmen under the and as such their application was not maintainable, must be rejected.
The contention depends upon the appreciation of evidence led by the parties on the nature of duties and functions performed by the concerned respondents and it was on an appreciation of the entire material that the Labour Court recorded a finding that having regard to the nature of their duties and functions all respondents, other than those who were holding the posts of Senior Supervisors and supervisors, were industrial employees, i. e. workman under the and it is not possible for this Court to interfere with such a finding of fact recorded by the Labour Court.
Even otherwise after considering some of the important material on record the court is satisfied that the Labour.
Court 's finding is correct.
[301 C F]


judgement:
l Appeal No. 1803 of 1070 From the Judgment and order dated 6.8.1968 of Patna High Court in first appeal No. 444 of 1967.
D.N. Mukherjee, Ranjan Mukherjee, A.K. Ganguli & S.C. Ghosh for the appellant.
R.B. Datar and Ms. Vina Tamta for the respondents.
The Judgment of the Court was delivered by DEASI J.
Appellant, an employee of Tata Iron and Steel Company Limited (`Company ' for short) has been chasing a mirage.
to wit to recover a paltry sum of Rs 14040 being the amount of gratuity to which he was entitled for the continuous service rendered by him from December 31, 1929 till August 31, 1959 under what are styled as Retiring Gratuity Rules, 1937 (`Gratuity Rules ' for short) from the Company and in this wholly unequal fight he laid down his life before enjoying the pittance to which he was entitled after three decades of loyal service.
What a dreadful return for abject loyalty? When the appellant retired by resignation from service he was paid his provident fund dues but gratuity which he was entitled to be paid under the relevant rules was not paid to him.
When the appellant claimed payment of gratuity, the respondent turned deal 329 ears to it.
Appellant sevred a notice dated September 6, 1981 calling upon the respondent to pay the amount of gratuity being Rs. 14040 .
The Company did not respond to the notice.
Thereupon the appellant filed M.S. No. 452 of 1962 in the court of Subordinate Judge at Jamshedpur.
The respondent appeared and contested the suit inter alia contending that `in terms of the contract of service and particularly having regard to the relevant rules under which gratuity can be claimed, the same is payable on certification of satisfactory service by the head of the department, and it is payable at the absolute discretion of the Company irrespective of whether the employee has or has not performed all or any of the conditions stated in the rules and no employee howsoever otherwise eligible is entitled as of right to any payment under the rules. ' The learned trial Judge framed the issues on which parties were at variance.
The learned Judge held that the plaint does disclose a cause of action and the plaintiff was entitled to claim and recover the amount of gratuity with interest thereon.
Accordingly, the suit was decreed against the.
Company directing it to pay the amount claimed in the plaint with future interest at 6% per annum with costs.
The respondent Company preferred First Appeal No. 444 of 1963 in the High Court of Judicature at Patna.
A Division Bench of the High Court held: i) that the service conditions of the plaintiff were governed by the Works Standing orders and that it was an implied condition of service that the plaintiff could get gratuity in accordance with the Gratuity Rules; (ii) that in view of Rule 6, an employee governed by the Gratuity Rules is not entitled to claim the same as a matter of right but he merely attains the benefit of eligibility or suitability for the retiring gratuity and not the right; iii) that until and unless the Company has decided to pay the gratuity in accordance with Rule 7 or otherwise, the mere fact of the employee becoming eligible to get it under the relevant rules which can be enforced in a civil court because the matter of payment of gratuity is at the absolute discretion of the Company as provided in Rule 10, and the employee, howsoever unfortunate the position may be under the modern stage of the society is not entitled to claim it as a matter of right because even though payment of gratuity under the Gratuity Rules is an implied condition of service, 330 yet the condition is further conditioned by the provisions made in the Rules and is subject to them; iv) that such a claim may enforced before the Industrial Tribunal under the but it is not possible to hold that the law of contract or the law of master and servant which is the only law to be enforced in a civil court can justify on interpretation of the Gratuity Rules in question that the plaintiff can be granted decree for payment of gratuity on the footing that it was the unconditional or unconditioned contractual obligation of the employer to pay such a money; v) the payment of gratuity money is not a gift pure and simple, but under the relevant rules it is in the nature of an inchoate claim or interest and not a right enforceable by a suit in court, because under the contract of service, the grant of gratuity has been left to the sole discretion of the employer as the relevant rules provided that no employee howsoever otherwise eligible shall be deemed to be entitled as of right to any payment under the rules.
Accordingly the appeal was allowed and the judgment and decree of the trial court were set aside and the plaintiff 's suit was dismissed, directing the parties to bear their costs.
Hence this appeal by the plaintiff by special leave.
At the outset it is necessary to notice the relevant rules relied upon by the respondent in support of its submission that the gratuity cannot be claimed as a matter of right and the claim to gratuity cannot be enforced in the civil court.
The Retiring Gratuity Rules came into force with effect from April 1, 1937 and at the relevant time, the rules as amended in 1948 were in operation.
Rule 5 provides for retirement of every uncovenanted employee of the Company on attaining the age of 60 years subject to the right of the company to grant extension.
This rule is a mere incorporation of S.O. 54 which provides for retirement on attaining the age of 60.
Rules 6, 7 and 10 may be extracted: "6.
(a) Subject to the conditions referred to in these rules, every permanent uncovenanted employee of the Company, whether paid on monthly, weekly or on daily basis, including those borne on the pay rolls of the Company of the Collieries and at ore Mines and Quarries, will be eligible for a retiring gratuity which shall be equal to half a month 's salary or wages for every completed year of continuous service, 331 subject to a maximum of twenty months salary or wages in all, (b) Provided that when an employee dies, retires or is discharged under Rule 11(2)(ii) and (iii) hereof, before he has served the Company for a continuous period of 15 years, a gratuity ordinarily limited to half a month 's salary or wages for each qualifying year may be paid subject, however, to a maximum of 6 months ' salary or wages in all.
(Amended vide Board Resolution No. VII dated 2nd July, 1953.) (c) The retiring gratuity will be based on the rate of the salary or wages applicable to the employee in the last month of active service or if the employee has retired while on leave, in the last month prior to the employee going on leave.
(d) In the case of an uncovenanted employee who has been transferred to another Tata concern, the retiring gratuity payable to him under Rule (4) 8 (a) hereunder will be based on the rate of the salary or wages applicable to the employee in the last month of service with the Company, (In force from 1.4.1946 as per Board Resolution dated 8.4.1948.) 7.
Notwithstanding anything contained in these Rules a gratuity shall become due and be payable and shall always have been deemed to have become due and payable only in such instalments and over such period or periods as may be fixed by the Board of Directors of the Company or subject to the direction of the Board by the Managing Agents.
Until any such instalment shall become or have become due and payable, the employee or any dependent who qualifies for payment under the Gratuity Rules shall not be eligible to receive or be paid any such instalment of the gratuity.
All retiring gratuities granted under these Rules other than special gratuity to be paid under the provisions of Rule 22 hereof shall be at the absolute discretion of the Com 332 pany irrespective of whether an employee has or has not performed all or any of the conditions herein after stated and no employee howsoever otherwise eligible shall be deemed to be entitled as of right to any payment under these Rule.
(Amended vide Board Resolution No. v dated 25.8.1955).
" The contention of the respondent is that the plaintiff did not retire from service but he left the service of the Company by resigning his post.
This aspect to some extent agitated the mind of the High Court.
It may be dealt with first.
It is not only not in dispute, but is in fact conceded that the plaintiff did render continuous service from December 31, 1929 till August 31, 1959.
On exact computation, the plaintiff rendered service for 29 years and 8 months.
Rule 6(a) which prescribed the eligibility criterion for payment of gratuity provides that every permanent uncovenanted employee of the Company whether paid on monthly, weekly or daily basis will be eligible for retiring gratuity which shall be equal to half a month salary or wages for every completed year of continuous service subject to a maximum of 20 months salary or wages in all provided that when an employee dies, retires or is discharged under Rule 11(2)(ii) and (iii) before he has served the Company for a continuous period of 15 years he shall be paid a gratuity at the rate therein mentioned.
The expression 'retirement ' has been defined in Rule 1 (g) to mean 'the termination of service by reason of any cause other than removal by discharge due to misconduct '.
It is admitted that the plaintiff was a permanent uncovenanted employee of the Company paid on monthly basis and he rendered service for over 29 years and his service came to an end by reason of his tendering resignation which was unconditionally accepted.
It is not suggested that he was removed by discharge due to misconduct.
Unquestionably, therefore, the plaintiff retired from service because by the letter Annexure 'B ' dated August 26, 1959, the resignation tendered by the plaintiff as per his letter dated July, 27, 1959 was accepted and he was released from his service with effect from September 1,1959.
The termination of service was thus on account of resignation of the plaintiff being accepted by the respondent.
The plaintiff has, within the meaning of the expression, thus retired from service of the respondent an he is qualified for payment of gratuity in terms of Rule 6. 333 Rule 7, in our opinion, has hardly any relevance because it enables the Company to pay gratuity by instalments.
It is Rule 10 which is material for the purpose.
It provides that payment of retiring gratuity under the Gratuity Rules, other than special gratuity to be paid under the provisions of Rule 22 which is not the case herein, shall be at the absolute discretion of the Company irrespective of whether an employee has or has not performed all or any of the conditions hereinafter stated, and no employee howsoever otherwise eligible shall be deemed to be entitled as of right to any payment under the rules.
The stand taken by the respondent to deny gratuity to the plaintiff is that gratuity payable under the rules is a matter of employer 's largesse to be distribute at the absolute discretion of the Company and cannot be claimed as a matter of right even if the concerned employees has fulfilled the eligibility criteria.
It is the interpretation of this Rule which would govern the outcome of this appeal.
It may be mentioned that the High Court which ultimately upheld the contention of the respondent has specifically held that gratuity was an implied condition of service of the plaintiff in accordance with the relevant rules.
The High Court reached this conclusion by first referring to Works Standing Orders framed by the Company which govern the conditions of service of the plaintiff.
In other words according to the High Court, the service conditions of the plaintiff were governed by the Works Standing Orders.
It is therefore necessary to determine the character of the Works Standing Orders Exh.
C framed by the Company.
This aspect was overlooked by the High Court with the consequence that the High Court found it difficult to enforce the claim of gratuity against the respondent by a decree of the court.
What then is the character of the Works Standing Orders framed by the Company ? Are they mere unenforceable rules or are they statutory in character or have a statutory flavour ? If they are statutory in character and they form part of the contract of service of every employee governed by the same, then the question would be whether its breach can be repaired or enforced by a civil suit ? The Parliament enacted the ( '1946 Act ' for short).
The long title of the Act provides that it was an act to require employers in industrial establishments formally to define conditions of employment under them.
334 The preamble of the Act provides that it is expedient to require employers in industrial establishments to define with sufficient precision the conditions of employment under them and to make the said conditions known to workmen employed by them.
By Section 3, a duty was cast on the employer governed by the Act to submit to the Certifying Officer draft standing orders proposed by him for adoption in his industrial establishment.
After going through the procedure prescribed in the Act, the Certifying Officer has to certify the draft standing orders.
Section 8 requires the Certifying Officer to keep a copy of standing orders as finally certified under the Act in a register to be maintained for the purpose.
Sub sec.
2 of Section 13 imposes penalty on employer who does any act in contravention of the standing orders finally certified under the Act.
The act was a legislative response to the laissez fairs rule of hire and fire at sweet will.
It was an attempt at imposing a statutory contract of service between two parties unequal to negotiate, on the footing of equality.
This was vividly noticed by this Court in Western India Mntch Company Ltd. vs Workmen as under : "In the sunny days of the market economy theory people sincerely believed that the economic law of demand and supply in the labour market would settle a mutually beneficial bargain between the employer and the workmen.
Such a bargain they took it for granted, would, secure fair terms and conditions of employment to the workman.
This law they venerated as natural law.
They had an abiding faith in the verity of this law.
But the experience of the working of this law over a long period has belied their faith.
" The intendment underlying the Act and the provisions of the Act enacted to give effect to the intendment and the scheme of the Act leave no room for doubt that the Standing Orders certified under the 1946 Act become part of the statutory terms and conditions of service between the employer and his employee and they govern the relationship between the parties.
Workmen of Messrs Firestone Tyre & Rubber Co. of India (P) Ltd. vs Management and Ors.
Workmen in Buckinghan and Carnatic Mills Madras vs Buckingham and Carnatic Mills and M/s Glaxo Laboratories (l) 335 Ltd. vs The Presiding Officer, Labour Court, Meerut & Ors.
The High Court recorded the finding that service conditions of the plaintiff were governed by the Works Standing Orders.
No exception has been taken to this finding.
It may at once be noted that the Works Standing Orders of the Company are Certified Standing Orders, under the 1946 Act evidenced by Certificate No. 45 dated March 18, provides that every uncovenanted employee of the Company shall retire from service on attaining the age of 60 years.
This S.O. 54 is bodily incorporated in Rule 5 of the Gratuity Rules.
Relying on S.O. 54 and the evidence recorded in the case, the High Court reached the conclusion that payment of gratuity was an implied condition of service of the plaintiff.
Rule 6(a) provides that 'subject to the conditions prescribed in the rules, every permanent uncovenanted employee of the Company will be eligible for a retiring gratuity in the manner and to the extent for a retiring gratuity in the manner and to the extent mentioned therein.
Retiring gratuity becomes payable on retirement, which means termination of service by reason of any cause other than removal by discharge due to misconduct.
On a combined reading of S.O. 54 and the Rule 5 of the Gratuity Rules the High Court rightly concluded that payment of gratuity was a condition of service but somehow the High Court qualified it by saying that it was an implied condition of service.
It is well settled by a catena of decisions, that Certified Standing Orders bind all those in employment at the time of service as well as those who are appointed thereafter. ' Agra Electricity Supply Co. Ltd. vs Sri Alladin & Ors.
Now upon a combined reading of S.O. 54 along with Rule 5 and 6(a) of the Gratuity Rules, it becomes distinctly clear that payment of gratuity was an express or statutory condition of service and to this limited extent the finding of the High Court has to be modified.
If payment of gratuity is thus shown to be a statutory or express condition of governing the relationship between the plaintiff and the company, it would be obligatory upon the company to pay the gratuity on retirement of the plaintiff.
If the company declines or refuses to pay or discharge its statutory obligation, could the claim be enforced by a civil suit ? The High Court was of the opinion 336 that even though payment of gratuity was a condition of service in view of the provision contained in Rule 10, the same cannot be claimed as a matter of right or its recovery cannot be enforced by a civil suit.
The High Court was constrained to observe that Rule 10 which confers absolute discretion on the Company to pay the gratuity at its sweet will is unconscionable and incompatible with the modern notions or conditions which ought to govern the relations between employer and that upon an industrial dispute being raised, the Industrial Tribunal may be in a position to award the gratuity as a matter or right even under the existing rules, but according to High Court, it cannot be enforced by a civil suit.
In reaching this conclusion the High Court overlooked the effect of certified Standing Orders and the inter relation between the Retiring Gratuity Rules and S.O. 54.
At this stage it would be appropriate to examine the effect of a breach of condition of service which is either statutory in character or has the statutory flavour.
When under 1946 Act, an obligation is cast on the employer to specifically and precisely lay down the conditions of service, Sec.
13(2) subjects the employer to a penalty if any act is done in contravention of the Standing Orders certified under the Act.
It would appear that such conditions of service prescribed in Standing Orders get incorporated in the contract of service of each employee with his employer.
A facet of collective bargaining is that any settlement arrived at between the parties would be treated as incorporated in the contract of service of each employee governed by the settlement.
Similarly certified Standing Orders which statutorily prescribe the conditions of service shall be deemed to be incorporated in the contract of employment of each employee with his employer.
As far as the incorporation of the results of collective bargaining into the individual contract of employment is concerned, the courts have in effect created a presumption of more or less systematic translation of the results of collective bargaining into individual contracts where these results are in practice operative and effective in controlling the terms on which employment takes place: (Labour Law Text and Materials by Paul Davies and Mark Freedland p. 233) O Kahn Freund describes collective bargaining as crystalised custom to be imported into contracts of employment on the same basis as trade custom (System of Industrial Relations in Great Britain p. 58 59).
This would be all the more true of certified Standing Orders governing conditions of service between workman and his employer.
If the employer commits a breach of the contract of employment, the same can be en 337 forced or remedied depending upon the relief sought by a civil suit.
If contract for personal service is sought to be specifically enforced by a decree of civil court, the court will have to keep in view the provisions of Sec.
14 of the which provides that contract for personal service cannot be specifically enforced.
We are not concerned with the exceptions to this rule such as the power of Industrial Tribunal to grant relief of reinstatement.
We are concerned with the jurisdiction of civil court.
The jurisdiction of civil court amongst others is determined by the nature of relief claimed.
Now if the relief claimed is a money decree by enforcing statutory conditions of service, the civil court would certainly have jurisdiction to grant the relief.
Plaintiff filed the suit alleging that he was entitled to payment of gratuity on completion of service for the period prescribed.
He alleged it and the High Court accepted it as a condition of service.
Its breach would give rise to a civil dispute and civil suit would be the only remedy.
In the case of workman governed by the may provide an additional forum to recover monetary benefit.
It is not suggested that plaintiff was a workman governed by the .
The High Court was, therefore, in error in holding that the remedy was only by way of an industrial dispute and not by a civil suit.
In reaching this conclusion, the Court High closed the door of justice to every employee though entitled to gratuity but would not be a workman within the meaning of the to recover the same, except where a prosecution can be successfully launched for an offence under Sec.
13(2) against the employer.
One more difficulty the High Court experienced in the way of the plaintiff maintaining the suit and recovering the amount of gratuity was that under Rule 10 gratuity was payable at the absolute discretion of Company and cannot be claimed as a matter of right.
Undoubtedly, Rule 10 confers discretion on the company to pay the gratuity even if the same is earned by satisfying the conditions subject to which gratuity becomes payable.
Rule 10 provides that jail retiring gratuities granted under the rules shall be at the absolute discretion of the Company irrespective of whether an employee has or has not performed all or any of the conditions set out in the rules and no employee howsoever otherwise eligible shall be deemed to be entitled as of right to any payment under the rules. ' Such absolute discretion is wholly destructive of the character of gratuity as a retiral benefit.
It is satisfactorily established and the High 338 Court has so ruled that payment of gratuity was a condition of service albeit implied condition of service which part does not stand scrutiny.
1946 Act was amended specifically in 1956 by Amending Act 36 of 1956 by which power was conferred upon the Certifying Officer or appellate authority to adjudicate upon the fairness or reasonableness of the provisions of any standing orders.
It is not clear whether the Rule 10 which appears to have been framed in the heyday of laissez faire has been recast, modified or amended to bring the same in conformity with the modern notions of social justice and Part IV of the Constitution.
Assuming it is not done, the court while interpreting and enforcing the relevant rules will have to bear in mind the concept of gratuity.
The fundamental principle underlying gratuity is that it is a retirement benefit for long service as provision for old age.
Demands of social security and social justice made it necessary to provide for payment of gratuity.
On the enactment of a statutory liability was cast on the employer to pay gratuity.
Pension and gratuity coupled with contributory Provident Fund are well recognised retiral benefits.
These retiral benefits are now governed by various statutes such as the Employees Provident Fund and Miscellaneous Provisions Act, 1952, the .
These statutes were legislative responses to the developing notions of fair and humane conditions of work, being the promise of of the Constitution.
article 37 provides that the provisions contained in Part IV Directive Principles of State Policy, shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.
" article 41 provides that 'the State shall within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. ' article 43 obligates the State to secure, by suitable legislation to all workers, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure. . ' The State discharged its obligation by enacting these laws.
But much before the State enacted relevant legislation, the trade unions either by collective bargaining or by statutory adjudication acquired certain benefits, gratuity being one of them.
Pension and gratuity are both retiral benefits ensuring that the workman who has spent his useful span 339 of life in rendering service and who never got a living wage, which would have enabled him to save for a rainy day, should not be reduced to destitution and penury in his old age.
As a return of long service he should be assured social security to some extent in the form of either pension, gratuity or provident fund whichever retiral benefit is operative in the industrial establishment.
It must not be forgotten that it is not a gratuitous payment, it has to be earned by long and continuous service.
Can such social security measures be denuded of its efficacy and enforcement by so interpreting the relevant rules that the workman could be denied the same at the absolute discretion of the employer notwithstanding the fact that he or she has earned the same by long continuous service ? If Rule 10 is interpreted as has been done by the High Court, such would be the stark albeit unpalatable outcome.
It is therefore necessary to take a leaf out of history bearing on the question of retiral benefits like pension to which gratuity is equated.
In Burhanpur Tapti Mills Ltd. vs Burhanpur Tapti Mills Mazdoor Sangh wherein this Court observed that :" a Scheme of gratuity and a scheme of pension have much in common.
Gratuity is a lump sum payment while pension is a period payment of a stated sum.
" Undoubtedly both have to be earned by long and continuous service.
For centuries the courts swung in favour of the view that pension is either a bounty or a gratuitous payment for local service rendered depending upon the sweet will or grace of the employer not claimable as a right and therefore, no right to pension can be enforced through court.
This view held the field and a suit to recover pension was held not maintainable.
With the modern notions of social justice and social security, concept of pension underwent a radical change and it is now well settled that pension is a right and payment of it does not depend upon the discretion of the employer, nor can it be denied at the sweet will or fancy of the employer.
Deokinandan Prasad vs State of Bihar & Ors., State of Punjab & Anr.
vs Iqbal Singh and D.S. Nakara & Ors.
vs Union of India.
If pension which is the retiral benefit as a measure of social security can be recovered 340 through civil suit, we see no justification in treating gratuity on a different footing.
Pension and gratuity in the matter of retiral benefits and for recovering the same must be put on par.
The question then is: Can the court ignore Rule 10 ? If gratuity is a retiral benefit and can be earned as a matter of right on fulfilling the conditions subject to which it is earned, any rule conferring absolute discretion not testable on reason, justice or fair play must be treated as utterly arbitrary and unreasonable and discarded.
If rules for payment of gratuity became incorporated in the Standing Orders and thereby acquired the status of statutory condition of service, an arbitrary denial referable to whim, fancy or sweet will of the employer must be rejected as arbitrary.
Sec. 4 of the 1946 Act which confers power on the Certifying Officer or appellate authority to adjudicate upon the fairness or reasonableness of the provisions would enable this Court to reject that part of Rule 10 conferring absolute discretion on the employer to pay or not to pay the gratuity even if it is earned as utterly unreasonable and unfair.
It must be treated as ineffective and unenforceable.
It is well settled that if the Certifying Officer and the appellate authority under the 1946 Act while certifying the Standing Orders has power to adjudicate upon the fairness or reasonableness of the provisions of any standing orders, this Court in appeal under article 136 shall have the power to do the same thing when especially it is called upon to enforce the unreasonable and unfair part of the Standing Order.
It therefore follows that part of Rule 10 which confers absolute discretion on the employer to pay gratuity even if it is earned, at its absolute discretion is ineffective and unenforceable.
This approach does not acquire any precedent but if one is needed the decision of this Court in Western India Match Company Ltd. case clearly rules to that effect.
In that case, the company relied on a special agreement which was to some extent in derogation of the provisions of the certified Standing Order.
The Court observed that to uphold such special agreement would mean giving a go by to the principle of three party participation, in the settlement of the terms of employment, as represented by the certified Standing Orders and therefore, the inconsistent part of special agreement is ineffective and unenforceable.
The claim to absolute discretion not to pay gratuity even when it is earned is a hangover of the laissez faire days and utterly inconsistent with the modern notions of fair industrial relations and therefore, it must be rejected as ineffective and hence unenforceable.
341 Viewed from a slightly different angle, our Constitution envisages a society governed by rule of law.
Absolute discretion uncontrolled by guidelines which may permit denial of equality before law is the anti thesis of rule of law.
Absolute discretion not judicially reviewable inheres the pernicious tendency to be arbitrary and is therefore violative of article 14.
Equality before law and absolute discretion to grant or deny benefit of the law are diametrically opposed to each other and cannot co exist.
Therefore, also the conferment of absolute discretion by Rule 10 of the Gratuity Rules to give or deny the benefit of the rules cannot be upheld and must be rejected as unenforceable.
The High Court reversed the decree of the trial court on the sole ground that Rule 10 confers an absolute discretion on the respondent company to pay or not to pay gratuity at its sweet will.
Once Rule 10 is out of the way, the judgment of the High Court has to be reserved.
Accordingly, this appeal succeeds and will have to be allowed.
The trial court decreed the plaintiff 's suit with costs and with interest at 6% per annum.
Interest at 6% per annum has become utterly irrelevant in these days with devaluation of the rupee.
Further in our opinion, the company declined to meet its obligation on an utterly unreasonable stand and denied to the plaintiff or a period of a quarter of a century what the plaintiff was legitimately entitled without the slightest shadow of doubt.
Therefore, while allowing the appeal in order to compensate the loss suffered by the plaintiff who died before enjoying the fruits of his decree, we direct that the interest shall be paid at 15% per annum and full costs throughout.
Accordingly, this appeal is allowed and the judgment and decree of the High Court are set aside and the decree of the trial court is restored with this modification that the interest shall be paid on the principal amount of Rs. 14,040 at 15% from 1.7.1959 till payment and full costs throughout be paid to the plaintiff.
The costs plaintiff in this Court is quantified at Rs. 5,000.
The payment shall be made within a period of two months from today.
H.S.K. Appeal allowed.

summary:
The appellant who resigned from service of the respondent company after serving for over 29 years was not paid retiring gratuity by the respondent, even when the appellant had become eligible for it under the relevant gratuity rules styled as the Retiring Gratuity Rules, 1937 (Gratuity Rules for short).
The appellant filed a suit in the Court of Subordinate Judge for recovering the amount of gratuity.
The Subordinate Judge decreed the suit.
The High Court allowed the appeal filed by the respondent.
Hence this appeal.
The respondents submitted; (1) that since the appellant did not retire from the service but left the service by resigning the post, he was not eligible for gratuity under Rule 6 of the Retiring Gratuity Rules, 1937; (2) that under Rule 10 the retiring gratuity was payable at the absolute discretion of the respondent and could not be claimed as a matter of right by the appellant even if he had become eligible for it; and (3) that claim to gratuity could not be enforced in the civil court.
Allowing the appeal ^ HELD: Rule 6(a) which prescribed the eligibility criterion for payment of retiring gratuity provides, inter alia, that every permanent uncovenanted employee of the Company, will be eligible for retiring gratuity.
The expression `retirement ' has been defined in Rule 1(g) to mean `the termination of service by reason of any cause other then removal by discharge due to misconduct '.
It is admitted that the appellant was a permanent uncovenanted employee of 326 the Company paid on monthly basis and he rendered service for over 29 years and his service came to an end by reason of his tendering resignation which was unconditionally accepted.
It is not suggested that he was removed by discharge due to misconduct.
Unquestionably.
therefore, the appellant has within the meaning of the expression, thus retired from service of the respondent and he is qualified for payment of gratuity in terms of Rule 6.
[ 332D F] According to the High Court, the service conditions of the appellant were.
governed by the Works Standing orders of the respondent.
No exception has been taken to this finding.
These Works Standing orders were framed and certified under the Industrial Employment (Standing orders) Act, 1946.
The Act was a legislative response to the laissez faire rule of hire and fire at sweet will.
It was an attempt at imposing statutory contract of service between two parties unequal to negotiate, On the footing of equality.
The intendment underlying the Act and the provisions of the Act enacted to give effect to the intendment and the scheme of the Act leave no room for doubt that Standing orders certified under the Act become part of the statutory terms and conditions of service between the employer and his employee and they govern the relationship between the parties.[333E 334G] Western India Match Company Ltd. vs Workman; [1974] I SCR 434.
Work man of Messrs Firestone Tyre & Rubber Co of India (P) Ltd. vs Management and ors; ; at 612.
Workman in Buckingham and carnatic Mills Madras vs the presiding Officer, labour Court, Meerut & Ors; [1984] 1 SCC 1.
Agra Electricity Supply co. Ltd. vs Sri Alladin & Ors;[1970] 1 SCR 806, referred to Upon a combined reading of Standing order (S.O) 54 along with Rule 5 and 6(a) of the Gratuity Rules, it becomes distinctly clear that payment of gratuity was an express or statutory conditions of service governing the relationship between the appellant and the respondent.
Therefore, it would be obligation upon the respondent to pay gratuity on retirement to the appellant.
If the respondent refuses to pay or discharge its statutory obligation, the claim can be enforce by a civil suit.
The High Court was of the opinion that in view of Rule 1 of the Gratuity Rules, recovery of gratuity cannot be enforced by a civil suit.
But upon an Industrial dispute being raised, the Industrial Tribunal may be in a position to award the gratuity as a matter or right even under the existing rules.
In reaching this conclusion the High Court overlooked the effect of the certified Standing orders and the inter relation between the Gratuity Rules and S.O 54, When under 1946 Act, an obligation is cast on the employer to specifically and precisely lay down the conditions of service, Sec.
13(2) subjects the employer to a penalty if any act is done in contravention of the Standing orders certified under the.
A face of collective bargaining is that any settlement.
arrived at between the parties would be treated as incorporated in the contract of service of each employee governed by the settlement.
Similarly, certified standing Orders which statutorily prescribe the conditions of service shall be deemed to be incorporated in the contract of employment of each employee with his employer.
If the employer commits a breach of the contract of employment the same can be enforced or remedied depending upon the 327 relief sought by a civil suit.
The jurisdiction of civil court amongst others is determined by the nature of relief claimed.
If the relief claimed is a money decree by enforcing statutory conditions of service, the civil court would certainly have jurisdiction to grant the relief.
[335F 337B] Labour Law Text and Materials by Paul Davies and Mark Freedland p 233 and system of Industrial Relations in Great B itain p. 58 59, referred to.
In the instant case, the appellant filed the suit alleging that he was entitled to payment of gratuity on completion of service for the period prescribed.
He alleged it and the High Court accepted it as a condition of service.
Its breach would give rise to a civil dispute and civil suit would be the only remedy.
In the case of workmen governed by the may provide an additional forum to recover monetary benefit.
It is not suggested that appellant was a workman governed by the .
The High Court was, therefore, in error in holding that the remedy was only by way of an industrial dispute and not by a civil suit.
[337C D] The Court while interpreting and enforcing the relevant gratuity rules will have to bear in mind the concept of gratuity.
The fundamental principle under lying gratuity is that it is a retirement benefit for long service as a provision for old age.
Demands of social security and social justice made it necessary to provide for payment of gratuity.
On the enactment of the a statutory liability was cast on the employer to pay gratuity.
Pension and gratuity which have much in common are well recognised retiral benefits as measures of social security.
It is now well settled that pension is a right and payment of it does not depend upon the discretion of the employer, nor it can be denied at the sweet will or fancy of the employer.
If pension can be recovered through civil suit, there is no justification in treating gratuity on a different footing.
Pension and gratuity in the matter of retiral benefits and for recovering the same must be put on par [339G H; 340A] Burhanpur Tapti Mills Ltd. vs Burhanpur Tapti Mills Mazdoor Sangh; , Deokinandan Prasad vs State of Bihar & Ors.
,[1971] Supp SCR 634, State of Punjab & Anr. vs Iqbal Singh, ; , D.S. Nakara & Ors vs Union of India; , ; referred to.
If the rules for payment of gratuity become incorporated in the Standing orders and thereby acquired the status of the statutory condition of service, an arbitrary denial referable to whim, fancy or sweet will of the employer must be, rejected as arbitrary.
Sec. 4 of the 1946 Act which confers power on the certifying officer or the appellate authority to adjudicate upon the fairness or reasonableness of the provisions would enable this Court to reject that part of Rule 10 which confers absolute discretion on the employer to pay gratuity even if it is earned, at its absolute discretion, as utterly unreasonable, ineffective and unenforceable.
That part of Rule 10 must, therefore, be treated as ineffective and un enforceable.
[340C D] 328 The claim to absolute discretion not to pay gratuity even when it is earned is a hang over of the laissez faire days and utterly inconsistent with the modern notion of fair industrial relations and, therefore, it must be rejected as ineffective and hence unenforceable.
[340H] Western India Match Company Ltd. vs Workmen, ; referred to.
Our Constitution envisages a society governed by rule of law.
Absolute discretion uncontrolled by guidelines which may permit denial of equality before law is the anti thesis of rule of law.
Absolute discretion not judicially reviewable inheres the pernicious tendency to be arbitrary and is, therefore, violative of article 14.
Equality before law and absolute discretion to grant or deny benefit of the law are diametrically opposed to each other and cannot co exist.
Therefore also the conferment of absolute discretion by Rule 10 of the Gratuity Rules to give or deny the benefit of the rules cannot be upheld and must be rejected as unenforceable.
[341A C]


judgement:
Civil Appeal No. 2613 of 1983.
From the Judgment and order dated 19 11 82 of Allahabad High Court in Civil Misc.
Writ No. 8287 of 1982.
R.K Garg, S.N. Singh and D.K. Garg, for the appellant.
P.R. Mridul, Miss A. Subhashini, R.N. Poddar, C.V. Subba Rao and A.K. Ganguli for the respondents.
The judgment of the Court was delivered by CHANDRACHUD, C.J.
The appellant was working as a senior clerk in the office of the Chief Commercial Superintendent, Northern Railway, Varanasi.
On May 22, 1982 the Senior Commercial officer wrote a letter to him, calling upon him to offer his explanation in regard to 12 charges of gross indiscipline.
The appellant submitted his explanation to the charges by his reply dated June 9, 1982.
On the very next day, the Deputy Chief Commercial Superintendent served a second notice upon the appellant, saying that the explanation offered by him was not convincing but that another chance was being given to him to offer his explanation regarding the specific charges which were conveyed to him by the letter of May 22, 1982.
By this letter, the appellant was also called upon to submit his explanation within three days as to why deterrent disciplinary action should not be taken against him.
The appellant submitted his further explanation on June 14, 1982, but on the very next day, the Deputy Chief Commercial Superintendent passed an order dismissing him from service on the ground that he was not fit to be retained in service.
The appellant filed a writ petition in the High Court of Allahabad challenging the order of dismissal on various grounds.
The Union of India, the Senior Commercial officer and the Deputy Chief Commercial Superintendent were impleaded to that petition 305 as Respondents 1 to 3.
That writ petition having been dismissed by the High Court, the appellant has filed this appeal by special leave.
The order dismissing the appellant from service was passed by Respondent 3 under Rule 14(ii) of the Railway Servants (Discipline and Appeal) Rules, 1968 read with Proviso (b) to Article 311(2) of the Constitution.
Respondent 3 recorded his reasons in writing for coming to the conclusion that it was not reasonably practicable to hold an inquiry into the conduct of the appellant in the manner provided by the relevant rules, and thereafter, he proceeded to pass the order of dismissal without holding any inquiry.
Quite some time was taken by the appellant 's counsel in arguing upon the true meaning and intendment of the Discipline and Appeal Rules, 1968 and in urging that the appellant should have been afforded an opportunity of being heard on the question as to whether, it was or was not reasonably practicable to hold an inquiry into the charges levelled against him.
It was also urged by the learned counsel that the fact that it was not reasonably practicable to hold a full fledged inquiry as contemplated by the Rules, did not justify the non holding of any inquiry at all.
We do not propose to enter into the merits of these contentions since, the appellant is entitled to succeed on another ground.
The letter dated May 22, 1982 which contains accusations of gross misconduct against the appellant enumerates 12 charges, out of which Charges Nos.
2 to 7 and 11 refer to the appellant 's misconduct in relation to Respondent 3.
For example, the second charge alleges that the appellant entered the office of Respondent 3 and challenged him in an offensive and derogatory language.
Charge No. 3 says that the appellant was in the habit of forcing himself on Respondent 3 two or three times every day with petty complaints.
Charge No. 4 alleges that the appellant stormed into the office of Respondent 3 and shouted at him, using foul words.
Charges 5, 6 and 7 contain similar allegations.
The allegation contained in Charge No. 11 is to the effect that behaving as a leader of goondas, the appellant hired the services of other goondas and created security problems for Respondent 3 and the members of his family.
It is obvious that if an inquiry were to be held into the charges framed against the appellant, the principal witness for the Department would have been Respondent 3 himself as the main accuser and the target of appellant 's misconduct.
It is surprising in this context that the 306 explanation dated June 9, 1982 which was furnished by the appellant to the letter of accusation dated May 22, 1982 was considered on its merits by Respondent 3 himself.
Thereby, the accuser became the judge.
The letter written to the appellant by Respondent 3 on June 10, 1982 says: "I have carefully gone through your defence explanation dated 9.6.82.
to the charges given in this office letter of even No. dated 22.5.82 and the same is not convincing at all.
Before taking any action under D. & A.R., I would like to offer you another chance for giving your explanation to the specific charges conveyed to you vide this office letter dated 22.5.82.
Please submit your defence explanation within three days as to why a deterrent disciplinary action should not be taken against you".
The appellant submitted his further explanation, which also was considered by Respondent 3 himself.
The order of dismissal dated June 15, 1982 which was issued by Respondent 3 recites that he was fully satisfied that it was not reasonably practicable to hold an inquiry into the appellant 's conduct as provided by the Rules and that he had come to the conclusion that the appellant was not fit to be retained in service and had, therefore, to be dismissed.
Evidently, Respondent 3 assessed the weight of his own accusations against the appellant and passed a judgment which is one of the easiest to pass, namely, that he himself was a truthful person and the appellant a liar.
In doing this, Respondent 3 violated a fundamental principle of natural justice.
The main thrust of the charges against the appellant related to his conduct qua Respondent 3.
Therefore, it was not open to the latter to sit in judgment over the explanation offered by the appellant and decide that the explanation was untrue.
No person can be a judge in his own cause and no witness can certify that his own testimony is true.
Any one who has a personal stake in an inquiry must keep himself aloof from the conduct of the inquiry.
The order of dismissal passed against the appellant stands vitiated for the simple reason that the issue as to who, between th 307 appellant and Respondent 3, was speaking the truth was decided by Respondent 3 himself.
In The State of Uttar Pradesh vs Mohammad Nooh, 1 S.R. Das, C.J., observed, while speaking for the majority, that the roles of a judge and a witness cannot be played by one and the same person and that it is futile to expect, when those roles are combined that the judge can hold the scales of justice even.
We may borrow the language of Das, C.J., and record a finding on the facts of the case before us that the illegality touching the proceedings which ended in the dismissal of the appellant is "so patent and loudly obtrusive that it leaves an indelible stamp of infirmity" on the decision of Respondent 3.
Mr. Mridul, appearing on behalf of the respondent, contended ' that though this may be the true legal position, the appellant does not deserve the assistance of the Court since, he was habitually guilty of acts subversive of discipline.
This argument does not impress us.
In the first place, to hold the appellant guilty of habitual acts of indiscipline is to assume something which remains unproved.
Secondly, the illegality from which the order of dismissal passed by Respondent 3 suffers is of a character so grave and fundamental that the alleged habitual misbehaviour on the part of the appellant cannot cure or condone it.
In the result, we allow the appeal and set aside the judgment of the High Court.
The order dated June 15, 1982 whereby the appellant was dismissed from service is set aside.
In order, however, to avoid needless complications in working out the mutual rights and obligations of the parties, we direct that the appellant, who is due to retire within about six months, shall be treated as having retired from service with effect from April 1, 1984.
He shall be paid the arrears of his salary due until March 31, 1984 on the basis of the salary last drawn by him on June 15, 1982, without taking into account the increments which he might have earned subsequent to that date.
The provident fund and gratuity shall also be paid to the appellant as calculated in accordance with the rules, as if no order of dismissal was passed against him.
The appellant may 308 not and shall not rejoin his duties.
He will be treated as on leave between now and March 31, 1984.
The arrears of salary until March 31, 1984 shall be paid to the appellant on the basis indicated above, on or before that date and, in any event, not later than May 1, 1984.
The provident fund and gratuity shall be paid to him within a period of two months from today.
Mr. Garg made a statement before us on behalf of his client, the appellant, that the appellant is neither in occupation of any official residential accommodation, nor is he in possession of the garage which is referred to in Charge No. 6 in the letter of May 22, 1982.
The appeal will stand disposed of in terms of the above order.
Respondent 1, the Union of India, shall pay to the appellant a sum of Rs. 1,000/ (Rupees one thousand) as his costs.
S.R. Appeal allowed.

summary:
The appellant was working as a senior clerk in the office of the chief Commercial Superintendent.
Northern Railway, Varanasi on May 22, 1982, the senior Commercial officer wrote a letter to him calling upon him to offer his explanation in regard to twelve charges of gross indiscipline, mostly relating to the Deputy Chief Commercial Superintendent.
The appellant submitted his explanation to the charges by his reply dated June 9, 1982.
On the very next day, the Deputy Chief Commercial Superintendent served a second notice upon the appellant saying that the explanation offered by him was not convincing but that another chance was being given to him to offer his explanation regarding the specific charges which were conveyed to him earlier.
By this letter, the appellant was also called upon to submit his explanation within three days ' as to why deterrent disciplinary action should not be taken against him.
The appellant submitted his further explanation on June 14, 1982, but on the very next day, the Deputy Chief Commercial Superintendent passed an order dismissing him from service on the ground that he was not fit to be retained in service.
The appellant filed a writ petition in the High Court of Allahabad challenging the order of dismissal on various grounds.
The writ petition was dismissed and hence the appeal special leave of the Court.
Allowing the appeal, the Court.
^ HELD: 1: 1.
The order of dismissal passed against the appellant stands vitiated for the simple reason that the issue as to who, between the appellant and Respondent No. 3 (the dismissing authority) was speaking the truth was decided by Respondent No. 3.
The main thrust of the charges against the appellant related to his conduct qua Respondent 3.
Therefore, it was not open to the latter to sit in Judgment over the explanation offered by the appellant and decided that the explanation was untrue.
No person can be a judge in his own 303 cause and no witness can certify that his own testimony is true.
Any one who has a personal stake in an enquiry must keep himself aloof from the conduct of the inquiry.
[306 F H] 1: 2.
On the facts of the case, the illegality touching the proceedings which ended in the dismissal of the appellant is "so patent and loudly obtrusive that it leaves an indelible stamp of infirmity" on the decision of Respondent No. 3.
[307 B C] 2.
From the charges 2 to 7 and 11, it is obvious that if an enquiry were to be held into the charges framed against the appellant, the principal witness for the Department would have been Respondent No. 3 (the dismissing authority) himself as the main accuser and the target of appellant 's misconduct.
Surprisingly, the explanation dated June 9, 1982 of the appellant to the letter of accusation dated May 22,1982 was considered on its merits by Respondent himself.
Thereby, the accuser became the Judge.
[305 G H, 306 A] Not only that, the further explanation submitted by the appellant was considered by Respondent No. 3 himself.
The order of dismissal dated June 15, 1962 which was issued by Respondent No. 3 recites that he was fully satisfied that it was not reasonably practicable to hold an inquiry into the appellant 's conduct as provided by the Rules and that he had come to the conclusion that the appellant was not fit to be retained in service and had, therefore, to be dismissed, Evidently, Respondent 3 assessed the weight of his own accusations against the appellant and passed a judgment which is one of the easiest to pass, namely, that he himself was truthful person and the appellant a liar.
In doing this Respondent No. 3 violated a fundamental principle of natural justice.
[305 B C, 306 F] The State of U.P. vs Mohammad Nooh ; , referred to.
The contention that inspite of the above legal position, the appellant does not deserve the assistance of the court, since he was habitually guilty of acts subversive of discipline cannot be accepted.
In the first place, to hold the appellant guilty of habitual acts of indiscipline is to assume something which remains unproved, Secondly, the illegality from which the order of dismissal passed by Respondent No. 3 suffers is of a character so grave and fundamental that the alleged habitual misbehaviour on the part of the appellant cannot cure or condone it.
[307 C E] 4.
The aviod needless complications in working out the mutual rights and obligations of the parties, the court directed: (i) The appellant who is due to retire from service shall be treated as having retired from service with effect from April 1, 1984: (ii) He shall be paid arrears of salary due until March 31, 1984 on the basis of salary last drawn by him on June 15, 1982 without taking into account the increments which he might have earned subsequent to that date: 304 (iii) The Provident Fund and gratuity shall also be paid to the appellant as calculated in accordance with the rules, as if no order of dismissal was passed against him; and (iv) he may not and shall not rejoin his duties and he will be treated as on leave between 23rd March, 1984 and 31st March, 1984.
[307 F H, 308 A B]