judgement:
Appeal No. 366 of 1959.
38 Appeal from the judgment and order dated September 18, 1958, of the Calcutta High Court in Income Tax Reference No. 9 of 1955.
section Mitra and section N. Mukherjee, for the appellant.
K. N. Rajagopal Sastri and D. Gupta, for the respondent.
December 8.
section K. DAS, J. This is an appeal on a certificate of fitness granted by the High Court of Calcutta under section 66A(2) of the Indian Income tax Act, 1922.
The assessee, Provat Kumar Mitter, is the appellant before us.
He was a registered holder of 500 Ordinary shares.
of the Calcutta Agency Ltd. By a written instrument, dated January 19, 1953, he assigned to his wife, Ena Mitter, the right, title and interest to all dividends and sums of money which might be declared or might become due on account or in respect of those shares for the term of her natural life.
We may read here the material portion of the instrument: "This Deed Witnesseth that for effecting the said desire and in consideration of the natural love and affection of the Settlor for the Beneficiary the Settlor as the beneficial owner assigns unto the Beneficiary the right, title and interest to every dividend and sum of money which may be declared or become due and payable on account of or in respect of the said shares (not being the price or value thereof) and further hereby covenants with the Beneficiary to hand over and/or endorse over to the Beneficiary any dividend Warrant or any other document of title to such dividend or sum of money as aforesaid and to instruct the said Company to pay any such dividend or such sum of money to the Beneficiary To Hold the same unto the Beneficiary absolutely during the term of her natural life.
And It Is Hereby Agreed And Declared that the Beneficiary shall remain entitled to and shall receive and stand possessed absolutely of every dividend and sum of money which she may receive on 39 account of the said shares during the term of her natural life and that the Settlor shall have no right, title or interest therein or derive any benefit therefrom during the said period.
" It is to be noticed that under the terms quoted above the shares themselves remained the property of the assessee, and it was only the income arising therefrom which was sought to be settled or assigned to his wife.
During the accounting year which ended on March 31, 1953, the dividend declared on the shares amounted to Rs. 12,000.
In assessing the as sessee for the assessment year 1953 54 the Income tax Officer included the said sum of Rs. 12,000 in his income under the provisions of section 16(1)(c) and section 16(3) of the Act, as he said in his assessment order.
The contention of the assessee was that since the settlement was for the lifetime of his wife, the third proviso to section 16(1)(c) applied and the dividend which his wife received could not be deemed to be his income under section 16(1)(c); as to section 16(3) of the Act the assessee contended that it did not apply, because there was no transfer of the shares to his wife.
The assessee, accordingly, appealed to the Appellate Assistant Com missioner.
Before that authority a somewhat unusual contention was put forward on behalf of the Department, viz., that the third proviso to section 16(1)(c) should be ignored inasmuch as it was repugnant to the main provisions contained in section 16(1)(c) and the general scheme of the Act.
A further contention urged on behalf of the Department was that since the shares continued to stand in the name of the assessee and the dividends had been declared in his name, the transfer of the dividend to the beneficiary was only an application of the dividend income and, therefore,, the assessee could not claim exemption from being taxed on it as a part of his own income.
The Appellate Assistant Commissioner accepted both the aforesaid contentions and dismissed the appeal.
In a further appeal to the Income tax Appellate Tribunal, the assessee again relied on the third proviso to section 16(1)(c) of the Act and the Departmental Representative urged the same two contentions plus 40 a new one to the effect that the deed by which the dividend had been transferred was altogether invalid inasmuch as it was an unregistered instrument and, therefore, no valid transfer of the dividend income had been effected by it.
The Tribunal rejected the Department 's contention that the third proviso was in conflict with the main provisions of section 16(1)(c) or the scheme of the Act.
As to the second contention that the transfer of the dividend income was a mere application of it by the assessee after it had accrued to him, the Tribunal apparently expressed no opinion.
It gave effect, however, to the third contention of the Department, namely, that the deed being an unregistered instrument did not operate as a valid transfer of the dividend income in favour of the assessee 's wife.
Both the assessee and the Commissioner then moved the Tribunal to refer to the High Court the questions which had respectively been decided adversely to them.
The Tribunal acceded to the request and referred three questions to the High Court, two at the instance of the Commissioner and one at the instance of the assessee.
The questions referred were as follows : "(1) Whether the deed dated January 19, 1953, assigning the dividends to accrue, merely on account of natural love and affection, is void as it is not registered? (2) Whether the third proviso to section 16(1)(c) is repugnant to the main clause 16(1)(c) and the general scheme of the Act, and should not be given effect to? (3) Whether, on the facts and in the circum stances of the case, the payment of dividend income to the assessee 's wife, Ena Mitter, under the covenant in the deed of assignment dated January 19, 1953, was merely a case of application of the assessee 's income?" The High Court answered the first two questions in favour of the assessee.
It answered the third question, however, against the assessee and in favour of the Department.
The High Court expressed its conclusion on the third question in the following words: 41 ". . . the conclusion must be that there being only a voluntary covenant entere d into by the settlor to pay over the dividends received by him to the wife or to instruct the company to pay them to her and the income not having been made the wife 's income from the beginning, what the settlement provides for is only an application of the income and therefore the income is assessable in the hands of the settlor, irrespective of whether the wife is also assessable on her receipts.
The case is outside the main clause of section 16(1)(c) and, therefore, the third proviso to the section is also not relevant.
" The appeal before us is limited to the question of the correctness or otherwise of the answer given by the High Court to the third question.
The first two questions having been answered in favour of the assessee and the Department not having filed any appeal with regard to them, we are not concerned with the correctness or otherwise of the answers given by the High Court to those questions and we express no opinion as respects those answers.
On behalf of the appellant it has been argued that the High Court should not have answered the third question, because it did not arise out of the order of the Tribunal.
The argument is that under section 66 of the Income tax Act, the Tribunal could refer to the High Court any question of law which arose out of its order, but it was not open to the Tribunal to refer a question which did not so arise.
We are unable to accept the contention that the question did not arise out of the Tribunal 's order.
Indeed, it is true as we have stated earlier, that the Tribunal did not state its specific finding on this question; but in the statement of the case drawn up by the Tribunal under section 66 it has stated that though no specific finding was given the question was raised by the Department and by implication was decided against the respondent.
In its application to the Tribunal for a reference, the present respondent specifically mentioned the question as one decided adversely to it and though the appellant 42 submitted that the question did not arise, the Tribunal held that the question did arise out of its order.
No objection appears to have been taken in the High Court to the reference made by the Tribunal on the three questions including the one now under consideration before us.
In these circumstances it is not open to the appellant to contend now that the question did not arise out of the Tribunal 's order.
We must, therefore, overrule this contention.
Now, as to the correctness of the answer given by the High Court.
Learned counsel for the appellant has contended that the High Court did not correctly construe the instrument of January 19, 1953, and on a proper construction, the High Court should have held that a right of property in present was assigned in favour of the wife.
Learned counsel has submitted that the assessee as a registered holder of 500 Ordinary shares of the Calcutta Agency Ltd., had a bundle of rights in the Company: (1) a right to vote; (2) a right to participate in the distribution of assets on dissolution or liquidation of the Company; and (3) a right to participate in the profits, e.g., dividends which might be declared.
It is contended that the aforesaid third right was assigned to the wife by the assessee, and that the High Court ignored the said assignment while it emphasised the other covenants for endorsing or handing over the dividend warrants, etc.
In support of his contention learned counsel has relied on certain observations made by this Court in Bacha F. Guzdar vs Commissioner of Income tax, Bombay (1) at p. 883.
, That was a case in which the question that arose for decision was whether dividend declared by a, company growing and manufacturing tea was agricultural income within the meaning of section 2(1) of the Income tax Act and hence exempt from income tax under section 4(3)(viii) of the said Act.
It was held that the dividend of a shareholder was the outcome of his right to participate in the profits of the company arising out of the contractual relation between the company and the shareholder, and the observations on which learned counsel has relied were to the effect (1) ; 43 that "the right to participate in the profits exists independently of any declaration by the company with the only difference that the enjoyment of profits is postponed until dividends are declared.
" We do not think that those observations are of any assistance to the appellant in the solution of the question before us, which is really one of construction of the instrument of January 19, 1953.
A transfer of property may take place not only in the present, but also in future; but the property must be in existence.
It is clear to us that the instrument of January 19, 1953, was not a transfer of any existing property of the assessee.
It was in its true nature a contract to transfer or make over in future every dividend and sum of money which may be declared or become due and payable on account or in respect of the shares held by the assessee, to his wife during her lifetime; the other covenants are ancillary in nature and subserve this main object of the contract.
The assessee did not assign the shares and, therefore, retained the right to participate in the profits of the company; he did not part with that right.
What the contract provided for was merely this: the beneficiary was given the right to receive from the assessee every dividend and other sum of money which may be declared or become due and payable in respect of the shares.
If this is the true construction of the document, then it is clear to us that the answer given by the High Court to the question referred to it is correct.
The High Court rightly pointed out that the Company paying the dividend can pay.
it only to the registered shareholder or under his orders (see Howrah Trading Co. Ltd. vs Commissioner of Income tax, Central, Calcutta) (1); therefore, section 16(1)(c) of the Income tax Act was not attracted nor the third proviso thereto, and the income continued to accrue to the assessee but was thereafter paid over to his wife under the terms of the contract.
The income was, therefore, assessable in the hands of the assessee, because it was part of his income though applied subsequently towards payment to the wife under the terms of the contract.
(1) [1959] Supp. 2 S.C.R. 448.
44 In this view of the matter, it is not necessary to decide the further question if a contract of this nature operates only as a contract to be performed in future which may be specifically enforced as soon as the property comes into existence or is a contract which fastens upon the property as soon as the settlor acquires it.
In either view, the income from the shares will first accrue to the settlor before the beneficiary can get it.
Such income will undoubtedly be assessable in the hands of the settlor despite the contract.
We think that the true position is that if a person has alienated or assigned the source of his income so that it is no longer his, he may not be taxed upon the income arising after the assignment of the source, apart from special statutory provisions like section 16(1)(c) or section 16(3) which artificially deem it to be the assignor 's income.
But if the assessee merely applies the income so that it passes through him and goes on to an ultimate purpose, even though he may have entered into a legal obligation to apply it in that way, it remains his income.
This is exactly what has happened in the present case.
We need only add that the principle laid down by the Privy Council in Bejoy Singh Dudhuria vs Commissioner of Income tax (3), does not apply to this case; because this is not a case of an allocation of a sum out of revenue before it becomes income in the hands of the assessee.
In other words, this is not a case of diversion of income before it accrues but of application of income after it accrues.
We have, therefore, come to the conclusion that the High Court correctly answered the question referred to it.
The appeal fails and is dismissed with costs.
Appeal dismissed.

summary:
The appellant who was the registered holder of 500 shares of a company executed a deed dated January 19, 1953, by which he assigned to his wife the right, title and interest to all dividends and sums of money which might be declared or might become due on account or in respect of those shares for the term of her natural life.
During the accounting year which ended on March 31, 1953, the dividend declared on the shares amounted to Rs. 12,000, and in assessing the appellant for the assessment year 1953 54 the Income tax Officer included the said sum in his income under section 16(i)(c) and section 16(3) of the Indian Income tax Act, 1922.
The appellant claimed that since the settlement was for the lifetime of his wife, the third proviso to section 16(i)(c) applied and the dividend which his wife received could not be deemed to be his income under section 16(i)(c), and that section 16(3) was not applicable because there was no transfer of the shares to his wife.
Held, that on its true construction the deed dated January 19, 1953, was not a transfer of any existing property of the appellant namely, the shares held by him, but only a contract to transfer or make over in future every dividend and sum of money which may be declared or become due and payable on account or in respect of the shares, to his wife during her lifetime.
Since the company could pay the dividend only to the registered shareholder or under his orders, the income continued to accrue to the appellant though applied subsequently towards payment to the wife under the terms of the contract.
The income, therefore, was assessable in the hands of the appellant.
Howrah Trading Co. Ltd. vs Commissioner of Income tax, Cal cutta, [1959] SUPP.
2 S.C.R. 448, relied on.
Bacha F. Guzday vs Commissioner of Income tax, Bombay, ; , held not applicable.
Bejoy Singh Dhudhuria vs Commissioner of Income tax, (1933) L.R. 60 I.A. 196, distinguished.


judgement:
l Appeals Nos. 153 and 154 of 1960.
Appeals by special leave from the Award dated February 5,1959, of the Industrial Tribunal, Bombay, in Reference (I.T.) No. 212 of 1958.
S.D. Vimadalal, section N. Andley and J. B. Dadachanji, for the appellant in C. A. No. 153/60 and Respondent in C.A. No. 154/60.
M.C. Setalvad, Attorney General for India and Janardan Sharma, for the respondents in C.A. No. 153/ 60 and Appellants in C.A. No. 154/60.
December 9.
The Judgment of the Court was delivered by WANCHOO, J.
The only question raised in these two appeals by special leave is about the quantum of bonus to be paid to the workmen (hereinafter called the respondents) by Voltas Limited (hereinafter called the appellant) for the financial year 1956 57.
The dispute between the parties was referred to the adjudication of the industrial tribunal Bombay.
The appellant, it appears, had already paid 4 1/2 months ' basic wages as bonus for the relevant year but the respondents claimed it at the rate of six months ' basic wages subject to the minimum of Rs. 250 per employee.
169 The tribunal went into the figures and after making the relevant calculations came to the conclusion that the available surplus worked out according to the Full Bench formula justified the grant of bonus equal to five months ' basic salary; it therefore ordered payment of this amount excluding the amount already paid.
The appellant in its appeal claims that the tribunal should have allowed nothing more than what the appellant had already paid; the respondents in their appeal on the other hand claim that they should have been allowed six months ' bonus.
The principles on which bonus has to be calculated have already been decided by this Court in the Associated Cement Companies Ltd. vs Their Workmen (1) and the only question that arises for our consideration is whether the tribunal in making its calculations has acted in accordance with those principles.
This leads us to the consideration of various points raised on behalf of the parties to show that the tribunal had not acted in all particulars in accordance with the decision in the Associated Cement Companies ' case (1).
We shall first take the points raised on behalf of the appellant.
The first point raised is that the tribunal was wrong in not allowing a sum of rupees one lac paid as contribution to political fund as an item of expense.
It is urged that this is a permissible item of expense and therefore the tribunal should not have added it back in arriving at the gross profits.
We are of opinion that the tribunal was right in not allowing this amount as expenditure.
In effect this payment is no different from any amount given in charity by an employer, and though such payment may be justified in the sense that it may not be against the Articles of Association of a company it is nonetheless an expense which need not be incurred for the business of the company.
Besides, though in this particular case the donation considering the circumstances of the case was not much, it is possible that permissible donations may be out of all proportion and may thus result in reducing the available (1) [1059] 2 S.C.R. 925.
22 170 surplus from which low paid workmen are entitled to bonus.
We are therefore of opinion that though the law or the rules of the company may permit the appellant to pay such amounts as donations to political funds, this is not a proper expense to be deducted when working out the available surplus in the light of the Full Bench formula.
The tribunal 's decision therefore on this point must be upheld.
The second contention of the appellant relates to deduction of what it calls extraneous income.
This matter has been considered by this Court in The Tata Oil Mills Co. Ltd. vs Ite Workmen and Others (1) and what we have to see is whether in accordance with the decision in that case, the appellant 's claim for deducting certain amounts as extraneous income is correct.
Learned counsel for the appellant has pressed four items in this connection.
The first item relates to a sum of Rs. 3.47 lacs.
It is said that this was not the income of the year and therefore should not have been taken into account in arriving at the gross profits.
The exact position with respect to this item is not clear and in any case learned counsel for the appellant appearing before the tribunal conceded that the amount could not be deducted from the profits.
In view of that concession we are not prepared to allow the deduction of this amount as extraneous income.
The second item is a sum of Rs. 1.76 lacs in respect of the rebate earned on insurance by the appellant with other companies by virtue of its holding principal agency.
Obviously this is part of the insurance business of the appellant and the work in this connection is entirely handled by the insurance department of the appellant; as such the tribunal was right in not allowing this amount as extraneous income.
The third item is a sum of Rs. 3 33 lacs being gain on foreign exchange transactions.
These transactions are carried on in the normal course of business of the appellant.
As the tribunal has rightly pointed out, if there had been loss on these transactions it would have certainly gone to reduce the gross profit,%; if there is a profit it has to be taken into account as (1)[1960] 1 S.C.R. 1. 171 it has arisen out of the normal business of the appellant.
The tribunal was therefore right in not allowing this amount as extraneous income.
The last item is a sum of Rs. 9.78 lacs being commission on transactions by government agencies and other organisations with manufacturers abroad direct.
It seems that the appellant is the sole agent in India of certain foreign manufacturers and even when transactions are made direct with the manufacturers the appellant gets com mission on such transactions.
The tribunal has held that though the transactions were made direct with the foreign manufacturers, the respondents were entitled to ask that the commission should be taken into account inasmuch as the respondents serviced the goods and did other work which brought such business to the appellant.
It seems that there is no direct evidence whether these particular goods on which this commission was earned were also serviced free by the appellant like other goods sold by it in India.
We asked learned counsel for the parties as to what the exact position was in the matter of free service to such goods.
The learned counsel however could not agree as to what was the exact position.
It seems to us that if these goods are also serviced free or for charges but in the same way as other goods sold by the appellant in India, the respondents are entitled to ask that the income from commission on these goods should be taken into account.
As however there is no definite evidence on the point we cannot lay down that such commission must always be taken into account.
At the same time, so far as this particular year is concerned we have to take this amount into account as the appellant whose duty it was to satisfy the tribunal that this was extraneous income has failed to place proper evidence as to servicing of these goods.
A claim of this character must always be proved to the satisfaction of the tribunal.
In the circumstances we see no reason to interfere with the order of the tribunal so far as this part of its order is concerned.
Two other points have been urged on behalf of the 172 appellant with respect to the interest allowed on capital and on working capital.
The tribunal has allowed the usual six per cent on capital and four per cent on working capital.
The appellant claimed interest at a higher rate in both cases.
We agree with the tribunal that there is no special reason why any higher rate of return should be allowed to the appellant.
This brings us to the objections raised on behalf of the respondents.
The main objection is to a sum of Rs. 4.4 lacs allowed by the tribunal as income tax, which is said to be with respect to the previous year.
It appears that there is a difference between the accounting year of the appellant and the financial year.
In the particular year in dispute there was an increase in the rate of tax which resulted in extra payment which had to be paid in this year.
In these special circumstances, therefore, the tribunal allowed this amount and we see no reason to disagree.
Next it is urged that the tribunal had allowed a sum of Rs. 4.76 lacs for making provision for gratuity as a prior charge.
This is obviously incorrect, as this Court has pointed out in the Associated Cement Companies ' case (1) that no fresh items of prior charge can be added to the Full Bench formula, though at the time of distribution of available surplus such matters, as provision for gratuity and debenture redemption fund, might be taken into account.
This disposes of the objections relating to the accounts.
Two other points have been urged on behalf of the respondents.
They are with respect to (1) salesmen and (2) apprentices.
The tribunal has excluded these two categories from the award of bonus made by it.
The respondents contend that they should also have been included.
We are of opinion that the decision of the tribunal in this behalf is correct.
So far as salesmen are concerned, the tribunal has examined the relevant decisions of other tribunals and has come to the conclusion that salesmen who are given commission on sales are not treated on par with other workmen in the matter of bonus.
It has also been found that the clerical work done by salesmen is small and incidental to their duty as such; salesmen have (1) 173 therefore been held not to be workmen within the meaning of the Industrial Disputes Act.
The tribunal has pointed out that the commission on an average works out at about Rs. 1,000 per mensem in the case of salesmen and therefore their total emoluments are quite adequate.
Besides, the salesmen being paid commission on sales have already taken a share in the profits of the appellant on a fair basis and therefore there is no justification for granting them further bonus out of the available surplus of profits.
As for the apprentices, the tribunal has held that there is a definite term of contract between them and the appellant by which they are excluded from getting bonus.
Besides, as the appellant has pointed out, the apprentices are merely learning their jobs and the appellant has to incur expenditure on their training and they hardly contribute to the profits of the appellant.
The view of the tribunal therefore with respect to apprentices also is correct.
We now turn to calculation of the available surplus according to the decision in the Associated Cement Companies ' case (1).
The gross profit found by the tribunal will stand in view of what we have said with respect to various items challenged by either party.
The chart of calculation will be as follows: in Lacs Gross profits Rs. 109.97 Less depreciation 3.28 Balance 106.69 Less income tax @ 51.15 per cent.
54.20 Balance 52.49 Less dividend tax, wealth tax etc.
7.50 Balance 44.99 Less return on capital at 6 per cent.
13.20.
Balance 31.79 Less return on working capital at 4 per cent.
1.66 Available surplus 30.13.
(1) 174 Out of this, the tribunal has allowed five months ' basic wages as bonus to the respondents which works out at Rs. 16.80 lacs.
In the circumstances it cannot be said that the award of the tribunal is not justified.
We do not think that we would be justified in giving anything more than what the tribunal has awarded, because the appellant has to provide for a fund for gratuity, for it is a new concern which took over the old employees of another concern when it was started and has thus a greater liability towards gratuity than otherwise would be the case.
We are therefore of opinion that the tribunal 's award of five months ' basic wages as bonus for the year in dispute should stand.
We therefore dismiss both the appeals.
In the circumstances we pass no order as to costs.
Appeals dismissed.

dataset_name: IN-Abs

summary:
The question in this appeal was whether the Tribunal was wrong in not allowing the amount paid to a political fund which was permissible as an item of expense and for disallowing the claim for deduction of certain amounts as extraneous income and whether the salesmen and apprentices were entitled to bonus.
168 Held, that though the law or the rules of the company per mitted the employer to pay amounts as donations to political funds, it was not a proper expense to be deducted when working out the available surplus in the light of the Full Bench formula.
Held, further, that neither the profits from transactions which were carried out in the normal course of business, nor the commission earned on transactions entered directly with foreign manufacturers, where the workmen had serviced the goods and did other work which brought such business to the employer, could be allowed as extraneous income.
Held, also that the salesmen who were given commission on sales had already taken a share in the profits of the company on a fair basis and there was no justification for granting them further bonus out of the available surplus of profits.
That the apprentices hardly contributed to the profits of the company.
Thus they were not entitled to any bonus.
The Associated Cement Companies Ltd. vs Their Workmen, and The Tata Oil Mills Co. Ltd. vs Its Workmen and Ors., ; , applied.


judgement:
Appeal No. 370 of 1959.
Appeal by special leave from the judgment and order dated August 6, 1957, of the Bombay High Court, Nagpur, in Misc.
Petition No. 512 of 1956.
M. N. Phadke and Naunit Lal, for the appellant.
Shankar Anand and A. G. Ratnaparkhi, for the respondents Nos. 2 4.
N.P. Nathvahi, K. L. Hathi and R. H. Dhebar, for the Intervener (State of Bombay).
December 9.
The Judgment of the Court was delivered by WANCHOO, J.
This is an appeal by special leave in an industrial matter.
The appellant is the manager of a biri factory in Nagpur.
Respondents 2 to 4 are working in that factory.
They applied for leave for fifteen days from December 18, 1955, to January 1, 1956, and did not go to work during that period.
The appellant did not pay their wages for these days and in consequence they applied to the Payment of Wages Authority (hereinafter called the Authority) for payment to them of wages which had been withheld.
Their claim was that they were entitled to fifteen days ' leave in the year under sections 79 and 80 of the .
The Authority allowed the claim and granted them a sum of Rs. 90/16/ in all as wages which had been withheld for the period of leave.
Thereupon, the appellant filed an application under article 226 of the Constitution before the High Court at Nagpur.
His main contention was that respondents 2 to 4 were not workers within the meaning of the and could not therefore claim the benefit 163 of a. 79 thereof The respondents contended that they were workers within the meaning of the and were entitled to the sum awarded to them by the Authority.
The High Court on a consideration of the circumstances came to the conclusion that respondents Fir2 to 4 were workers under section 2(1) of the and therefore the order of the Authority was correct and dismissed the petition.
The appellant then applied for a certificate to appeal to this Court which was refused.
He then obtained special leave from this Court and that is how the matter has come up before US.
2(1) defines a worker to mean a person employed, directly or through any agency, whether for wages or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process.
The main contention of the appellant is that respondents 2 to 4 are not employed in the factory within the meaning of that word in section 2(1).
Reliance in this connection is placed on two decisions of this Court, namely, Dharangadhara Chemical Works Ltd. vs State of Saurashtra (1) and Shri Chintaman Rao vs The State of Madhya Pradesh (2).
In Dharangadhara Chemical Works (1), this Court held with reference to section 2 (s) of the Industrial Disputes Act, which defined "workman" that the word "employed" used therein implied a relationship of master and servant or employer and employee and it was not enough that a person was merely working in the premises belonging to another person.
A distinCtion was also drawn between a workman and an independent contractor.
The prima facie test whether the relationship of master and servant or employer and employee existed was laid down as the existence of the right in the employer not merely to direct what work was to be done but also to control the manner in which it was to be done, the nature or extent of such control varying in different industries and being (1) ; (2) ; 164 by its nature incapable of being precisely defined.
The correct approach therefore to the question was held to be whether having regard to the nature of the work, there was due control and supervision of the employer.
The matter came up again for consideration in Chintaman Rao 's case (1) which also happened to relate to biri workers, and section 2(1) of the had to be considered in it.
It was held that the test laid down in Dharangadhara Chemical Works (2) with respect to section 2(s) of the Industrial Disputes Act would also apply to section 2(1) of the .
Finally, it was pointed out that the question whether a particular person working in a factory was an independent contractor or a worker would depend upon the terms of the contract entered into between him and the employer and no general proposition could be laid down, which would apply to all cases.
Thus in order to arrive at the conclusion whether a person working in a factory (like respondents 2 to 4 in this case) is an independent contractor or a worker the matter would depend upon the facts of each case.
Let us then turn to the facts which have been found in this case.
It has been found that the respondents work at the factory and are not at liberty to work at their homes.
Further they work within certain hours which are the factory hours, though it appears that they are not bound to work for the entire period and can go away whenever they like; their attendance is noted in the factory; and they can come and go away at any time they like, but if any worker comes after midday he is not supplied with tobacco and is thus not allowed to work, even though the factory closes at 7 p.m. in accordance with the provisions of the and when it is said that they can return at any time, it is subject to the condition that they cannot remain later than 7 p.m.
There are standing orders in the factory and according to those standing orders a worker who remains absent for eight days (presumably without leave) can be removed.
The payment is made on piece rates according to the amount of work done but the management has the (1) ; (2) ; 165 right to reject such biris as do not come up to the proper standard.
It is on these facts that we have to decide the question whether respondents 2 to 4 were employed by the appellant.
It will be immediately noticed that the facts in this case are substantially different from the facts in Shri Chintaman Rao 's case (1).
In that case the factory entered into contracts with independent contractors, namely, the Sattedars, for the supply of biris.
The Sattedars were supplied tobacco by the factories and in some cases biri leaves also.
The Sattedars were not bound to work in the factory nor were they bound to prepare the biris themselves but could get them prepared by others.
The Sattedars also employed some coolies to work for them and payment to the coolies was made by the Sattedars and not by the factory.
The Sattedars in their turn collected the biris prepared by the coolies and took them to the factory where they were sorted and checked by the workers of the factory and such of them as were rejected were taken back by the Sattedars to be remade.
The payment by the factory was to the Sattedars and not to the coolies.
In these circumstances it was held that the Sattedars were independent contractors and the coolies who worked for them were not the workers of the factory.
The facts of the present case, however, are different.
Respondents 2 to 4 have to work at the factory and that in itself implies a certain amount of supervision by the management.
Their attendance is noted and they cannot get the Work done by others but must do it themselves.
Even though they are not bound to work for the entire period during which the factory is open it is not in dispute that if they come after midday, they are not given any work and thus lose wages for that day, the payment being at piece rates.
Further though they can stay away without asking for leave, the management has the right to remove them if they so stay away for a continuous period of eight days.
Lastly, there is some amount of supervision inasmuch as the management has the right of rejection of the biris prepared if they do not come up to the proper standard.
(1) ; 166 The question therefore that arises is whether in these circumstances it can be said whether the appellant merely directs what work is to be done but cannot control the manner in which it has to be done; of course, the nature or extent of control varies in different industries and cannot by its very nature be precisely defined.
Taking the nature of the work in the present case it can hardly be said that there must be supervision all the time when biris are being prepared and unless there is such supervision there can be no direction as to the manner of work.
In the present case the operation being a simple one, the control of the manner in which the work is done is exercised at the end of the day, when biris are ready, by the method of rejecting those which do not come up to the proper standard.
In such a case it is the right to supervise and not so much the mode in which it is exercised which is important.
In these circumstances, we are of opinion that respondents 2 to 4 who work in this factory cannot be said to be independent con tractors.
The limited freedom which respondents 2 to 4 have of coming and going away whenever they like or of absenting themselves (presumably without leave) is due to the fact that they are piece rate workers; but the mere fact that a worker is a piece rate worker would not necessarily take him out of the category of a worker within the meaning of section 2(1) of the .
Considering the entire circumstances and particularly the facts that if the worker does not reach the factory before midday he is given no work, he is to work at the factory and cannot work else where, he can be removed if lie is absent for eight days continuously and finally his attendance is noted and biris prepared by him are liable to rejection if they do not come up to the standard, there can be no doubt that respondents 2 to 4 are workers within the meaning of section 2(1) of the .
This is also the view taken by the Bombay High Court in State vs Shankar Balaji Waje (1) in similar circumstances and that we think is the right view.
Then it was urged that even if the respondents are (1) A.I.R. 1960 Bom.
167 workers under section 2(1), section 79 should not be applied to them as they can absent themselves whenever they like.
In this very case it is said that the respondents remained absent for a longer period than that provided in the Act and therefore they do not need any leave.
This argument has in our opinion no force.
The leave provided under section 79 arises as a matter of right when a worker has put in a minimum number of working days and he is entitled to it.
The fact that the respondents remained absent for a longer period than that provided in s, 79 has no bearing on their right to leave, for if they so remained absent for such period they lost the wages for that period which they would have otherwise earned.
That however does not mean that they should also lose the leave earned by them under section 79.
In the circumstances they were entitled under section 79 of the to proportionate leave during the subsequent calendar year if they had worked during the previous calendar year for 240 days or more in the factory.
There is nothing on the record to show that this was not so.
In the circumstances the appeal fails and is hereby dismissed with costs.
One set of hearing costs.
Appeal dismissed.

summary:
The appellant employed workmen in his bidi factory who had to work at the factory and were not at liberty to work at their houses; their attendance were noted in the factory and they had to work within the factory hours, though they were not bound to work for the entire period and could come and go away when they liked; but if they came after midday they were not supplied with tobacco and thus not allowed to work even though the factory closed at 7 p.m.; further they could be removed from service if absent for 8 days.
Payment was made on piece rates according to the amount of work done, and the bidis which did not come upto the proper standard could be rejected.
The respondent workmen applied for leave for 15 days and did not go to work, for which period the appellants did not pay their wages; in consequence the concerned workmen applied to the Payment of Wages Authority for payment of wages to them.
The appellant 's contention that the respondent workmen were not his workmen within the meaning of the , was rejected and the claim for payment of wages was allowed.
The question therefore was whether the appellants were workmen within the meaning of the .
Held, that the nature of extent of control varies in different industries and cannot by its very nature be precisely defined.
When the operation was of a simple nature and could not be supervised all the time and the control was at the end of day by the method of rejecting the work done which did not come up to proper standard, then, it was the right to supervise and not so much the mode in which it was exercised which would determine whether a person was a workman or an independent contractor.
The mere fact that a worker was a piece rate worker would not necessarily take him out of the category of a worker within the meaning of section 2(1) Of the .
In the instant case the respondent workmen could not be said to be independent contractors and were workmen within the meaning of section 2(1) of the .
Held, further, that the leave provided for under section 79 of the arose as a matter of right when a worker had put 21 162 in a minimum number of working days and he was entitled to it.
The fact that the workman remained absent for a longer period had no bearing on his right to leave.
State vs Shankar Balaji Waje, A.I.R. 1960 Bom.
296, approved.
Dharangadhara Chemical Works Ltd. vs State of Saurashtra, ; and Shri Chintaman Rao vs The State of Madhya Pradesh, ; , referred to.


judgement:
Appeal No. 506 of 1957.
Appeal from the judgment and order dated July 21, 1955, of the High Court of Andhra, Guntur, in Writ Appeal No. 122 of 1954.
K. N. Rajagopala Sastri and D. Gupta, for the appellant.
T. V. B. Tatachari, for the respondent.
December 8.
, J. This appeal by the State of Andhra is from the judgment of the High Court, Andhra, dated July 21, 1955, on a ' certificate under article 133(1) (c) of the Constitution.
The respondent joined the Madras Police Force as a Constable on September 1, 1939.
He became a permanent Head Constable in 1946 and was promoted to officiate as a Sub Inspector on October 1, 1947, when his probation commenced.
By order dated September 24, 1950, he was declared to have satisfactorily completed his period of probation and was brought to the "A" list with effect from September 10, 1950.
He 47 was still merely officiating as a Sub Inspector, the effect of his being placed in List "A" being that he came into the category of an "approved probationer", i.e., fit for being confirmed as Sub Inspector when substantive vacancies arose.
On August 3, 1952, the District Superintendent of Police, Krishna, issued an order reverting the respondent to the rank of Head Constable with effect from August 14, 1952, i.e., to the post which he substantively held, for the reason that there was not a sufficient number of vacancies in the post of Sub Inspectors for being filled by him.
It may be mentioned that such reversion was not confined to the respondent alone but extended to 'a very large number of officiating Sub Inspectors, who were similarly promoters from the rank of Head Constables.
The reverted officers petitioned to the Inspector General of Police and in reply thereto and in further explanation and clarification of the reasons for the reversions the Inspector General of Police, Madras, issued a memorandum on January 15, 1953, in the following terms: "MEMORANDUM.
Sub: Officiating Sub Inspector Reverting as Head Constables Seniority over direct recruits Petitions.
As direct recruits are recruited against vacancies specially reserved for them and cannot be reverted for want of vacancies, seniority between directly recruited Sub Inspectors and promoted Sub Inspectors should be determined separately.
Their contention that they should not have been reverted in preference to direct recruits is not, therefore, correct.
Their reversion as Head Constables is in order.
" The respondent thereafter submitted a memorial to Government in which the principal challenge was to the view of the Government that the directly recruited Sub Inspectors formed a category distinct from the promotee Sub Inspectors as not being countenanced by the relevant rules relating to the constitution of the Police Establishment.
Not having obtained any redress by reason of his memorial, the respondent 48 filed before the High Court of Madras a petition under article 226 of the Constitution (Writ Petition No. 524 of 1953) and prayed therein that the State of Madras may be directed by the issue of a writ of mandamus to refrain from enforcing the order reverting him as Head Constable but to consider his claim to be confirmed as Sub Inspector on the basis of his seniority in the list of approved probationers.
Balakrishna Iyer, J., who heard the petition allowed it and issued a direction to the State "to forbear from giving effect to the ' order of reversion if the petitioner by virtue of his seniority among promoters can be included in the 30 per cent.
already referred to".
We shall be dealing in detail with the nature and scope of the rule as to the 30 per cent.
referred to here, which formed the basis of the learned Judge 's order in its proper place and will not interrupt the narration of the events which have led to the appeal now before us.
The State preferred an appeal from this judgment which was transferred to the High Court of Andhra after that Court.
was formed.
The learned Judges who heard the appeal differed from the learned Single Judge in his view as to the scope of the rule as to 30 per cent.
but dismissed the appeal holding that the Government in directing the reversion of the promotee probationers had not observed strictly the relevant rule as to juniority prescribed in rule 5 of the Service Rules, to which rule we shall refer in due course.
The State of Andhra thereafter moved the High Court for the grant of a certificate and having obtained it, has filed this appeal.
Though in his petition under article 226 filed before the High Court of Madras, the petitioner had alleged that his reversion from the officiating post of Sub Inspector to his substantive post as Head Constable was a reduction in rank within the meaning of article 311(2) of the Constitution, i.e., a reduction by way of punishment effected without giving him an opportunity to show cause therefor, this contention was abandoned early in the proceedings before the Court and the case has proceeded throughout on both sides on the footing that the reversion was effected solely for administrative 49 reasons and not for any misconduct by way of punishment.
Indeed, it may be mentioned that when the respondent was normally due for promotion to the substantive post of Sub Inspector without reference to the judgment of the High Court he was duly promoted to that post and he now occupies the post of a Sub Inspector drawing the increments and salary fixed therefor.
Article 311(2) being out of the way.
the questions that arise fall under two heads: (1) Was there a violation of the Service Rules when the respondent was reverted as Head Constable? (2) If there was such a violation, do breaches of Service Rules by themselves constitute an infringement of the legal rights of officers to whom they apply, entitling them to seek remedies therefor before Courts.
The rules on the construction of which the answer to the first point depends are those framed, inter alia, under section 243 of the Government of India Act, 1935, entitled "Rules relating to the Madras Police Subordinate Service".
Rule 3 which relates to recruitment and which was held to be violated, by the learned Single Judge ran in these terms: "Rule 3.
Method of appointment and promotions: (a) Appointment to the several classes and categories shall be made as indicated in Annexure 1.
ANNEXURE I Category 2 Method of Limitation Appointing appointment authority (1) (2) (3) (4) Sub Inspec Promotion Up to not In the mofus tors from Head more than sil the D.I.G. Constables 30% of the Police con Cadre cerned Direct recruitment Nil do This is followed by rules 4 and 5 which read: "Rule 4.
Right of probationers and approved probationers to appointment to vacancies: A 7 50 vacancy in any class or category shall not be filled by the appointment of a person who has not yet commenced his probation in such class or category when an approved probationer or a probationer therein is available for such appointment.
" "Rule 5.
Order of discharge of probationers and approved probationers: (a) The order in which probationers and approved probationers.
shall be discharged for want of vacancies shall be first, the probationers in order of juniority; and ,second, the approved probationers in order of juniority.
(b) The order of discharge laid down in sub rule(a) may be departed from in cases where such order would involve excessive expenditure on traveling allowance or exceptional administrative inconvenience.
" The other rules merely carry out the principles underlying those extracted and do not need to be set out.
To appreciate the points urged before us by the learned counsel for the appellant State on the proper interpretation of these rules, it is necessary to set out the contentions respectively urged by the two parties in the Courts below and how they were dealt with.
On behalf of the respondent the points urged were: (1) That on a proper construction of Rule 3, promotee Sub Inspectors referred to in departmental parlance as rank promotees, as distinguished from those directly recruited were entitled to be appointed to a minimum of 30 per cent.
of the cadre strength and that this rule was violated in that at the time of the respondent 's reversion the force consisted only of less than 25 per cent.
of rank promotees and more than 75 per cent.
of those directly recruited.
If the rule as to the proportion of appointments as laid down in Rule 3 had strictly been followed there would have been no necessity for reverting the respondent as Head Constable.
(2) The3O per cent.
and the 70 per cent.
laid 51 down in r. 3 applied only at the stage of the initial recruitment of Sub Inspectors and that when once that recruitment was made and the probation of the officers started, no difference could under the rules be thereafter made between the two classes of appointees but that both of them constituted one unified force the members of which were entitled to be appointed to substantive posts as full members of the Service solely on the basis of their inter se seniority (apart from misconduct or inefficiency, etc.).
The appointment to substantive posts of officers directly recruited in preference to persons like the respondent whose probation had commenced at an earlier date was therefore a violation of r. 4 of the Service Rules.
(3) If at any time the cadre strength was reduced by the abolition of temporary posts there might have, to be reversions, but in reverting officers the rule as to juniority laid down by r. 5(a) had to be strictly followed.
This rule made no distinction between Sub Inspectors appointed directly and rank promotees.
Both formed a single category and among them those who had not completed their probation had to be reverted first and thereafter the approved probationers in the order of their juniority.
In the present case the respondent urged that approved probationers like himself who were senior to several of the officiating Sub Inspectors directly recruited had been reverted out of turn in violation of r. 5(a).
(4) If in the circumstances stated by the Government (which would be mentioned later), the directly recruited Sub Inspectors could not properly be reverted because of the assurances given to them, Government were bound to retain all rank promotee approved probationers as officiating Sub Inspectors until they could be appointed in substantive vacancies as full members thereof.
In answer to these contentions the case which the State put forward was as follows: (1) The rule as to the proportion between the rank promotees and direct recruits laid down by r. 3 read with the Annexure, fixed only the maximum percentage of rank promotees.
The words "up to, not 52 more than" meant and could in the context mean only, that the maximum proportion of rank promotees could be only 30 per cent.
This was made clear by there being no limitation placed on the proportion of direct recruits.
In other words, the 30 per cent.
was the ceiling fixed and not any minimum and the rule in effect guaranteed direct recruits a minimum proportion of 70 per cent.
There was therefore no violation of this rule when the, proportion of rank promotees fell to a little below 25 per cent.
at the relevant date.
(2) Even if r. 3 had been strictly followed the respondent would have derived no benefit from the operation of that rule because he was well below the level of rank promotees who would even then had to be absorbed.
It may be mentioned that it was because of this feature that the order of Balakrishna lyer, J., took the form of directing the Government"to forbear from giving effect to the order of reversion if the petitioner by virtue of his seniority among promotees can be included among 30 per cent.
" (3) On a proper construction of the rules, the proportions laid down in r. 3 applied whether or not at the stage of the initial recruitment, certainly at the stage of appointments to substantive posts, i.e., absorption as full members of the permanent strength of the cadre.
It was their further contention based on the above, that for considering confirmations provided for by r. 4 the category of direct recruits had to be treated as a class different from the category of rank promotees and there was no question of seniority as between members of the two groups but only within each group.
On this basis the State Government urged that at the stage of absorption governed by r. 4 the rule as to proportion had to be worked out and that consequently there had been no violation of that rule.
(4) There had been no violation of r. 5 either, on two grounds (1) based on denying that there was a unified category of Sub Inspectors and in putting forward that the two classes which made up the Service, viz., direct recruits and rank promotees formed 53 different categories, and (ii) that even if they formed a single category of officers after their initial appoint ments, there had been no violation of the rule fixed for reversion by r. 5(a) by reason of the special circumstances of the case which brought their action within the specific provision in r. 5(b).
In connection with this last submission it was pointed out that at the time of the police action in Hyderabad a large number of persons were recruited direct as Sub Inspectors to whom an assurance had been given that they would not be reverted.
A large number of such temporary appointments were made and these directly recruited Sub Inspectors had to be provided with posts when temporary posts were getting abolished.
This introduced an administrative problem which could be solved only by reverting the rank promotees.
We shall now proceed to a consideration of the points thus in controversy between the parties and which were urged on either side before us.
The first point to be dealt with is as to whether there had been an infraction of r. 3 of the Service Rules by reason of the proportion of rank promotees being less than 30 per cent.
of the total number of Sub Inspectors in service at the date of the respondent 's reversion.
As has already been pointed out, the learned Single Judge had rested his decision in favour of the respondent on an infraction of this rule, but the learned Judges of the High Court in appeal had taken a different view.
Learned Counsel for the respondent sought to support the view that the words "up to, not more than 30 per cent" in the rule meant up to a minimum of 30 per cent.
the effect of the addition of the words " not more than" being merely to eliminate fractions and permit the number to be rounded off to the nearest lower integer.
It would be seen that the learned Single Judge had stressed the use of the words "up to" and practically gave no effect to the words " not more than" in arriving at the construction that he adopted.
We consider that this construction is erroneous, particularly in the context of the provision as regards direct recruits, in regard to whom there is no limitation placed on the proportion which they 54 could have in the Service.
Taken in conjunction with this provision it is clear that the words "up to, not more than" merely fix the maximum percentage of rank promotees in the category, leaving it to the appointing authorities to adopt any percentage below this figure.
We consequently endorse the view which the learned Judges of the Andhra High Court took in dissenting from the construction which the learned Single Judge placed on the scope of r. 3.
The reversion of the respondent cannot, therefore, be challenged on the ground that there had been an infraction of r. 3 of the Service Rules.
The next question is as to whether r. 4 of the Service Rules by which confirmations were regulated, had been violated in promoting the more junior direct recruits to substantive posts in preference to rankpromotees like the respondent who were senior to them in service in the sense that the latter 's probation as officiating Sub Inspectors commenced earlier.
The application of these rules in the context of the facts of this case depends largely on whether rank promotees and officers directly recruited form or do not form the same class or category becoming integrated into, one Service on their initial appointment to the Service.
It is common ground that the two classes become integrated as members of a unified Service after appointment as full members of the Service.
The point in controversy is limited to the period between the date of their initial appointment and their absorption as full members.
If up to that date they formed two categories and the seniority in each group ha,,; to be reckoned separately, the order of the Government would be perfectly in order and constitute no breach of the rules.
But if on the other hand officers recruited by either of the two modes promotions from the rank of Head Constables and Sub Inspectors directly recruited form an integrated and unified force from the very commencement of their appointments, then on the application of r. 4 confirmations ought to depend on mere seniority (subject to factors relevant to merit or demerit) as officiating Sub Inspectors without regard to the manner in which they were originally appointed.
Though the 55 learned Single Judge did not directly pronounce on the effect of r. 4, the Andhra High Court held that the rule of seniority.prescribed by the rule had been violated.
After expressing their disagreement with the learned Single Judge in his view that the minimum of 30 per cent.
laid down by r. 3 had been violated, they observed: "Nor does it follow that we can countenance the argument of the learned Government Pleader that irrespective of the percentage of promoters on the cadre at a given time, all vacancies can be filled up, if the Government so chooses, only with direct recruits.
We think that from both the classes of approved probationers, be it direct recruits or be it candidates from the ranks, selection should be made without any distinction, provided of course that so far as promotees are concerned the percentage of 30 is not exceeded.
Now, it is admitted by the Government that the percentage of promotees, was only 24.5 at the time when the petitioner was sent back as Head Constable.
That being so, it cannot be con tended for the State that the ceiling will be exceeded if the petitioner is promoted.
As we read the rules, when once an officer qualifies as an approved probationer, no distinction can be made between him and a direct recrui t approved probationer.
" We are unable to agree with the reasoning or the conclusion here expressed.
It would be seen that the learned Judges have, though tacitly, accepted the case put forward by the Government, and in our view correctly, that the integration of the two groups is only after the stage of absorption as full members of the Service, and that at that stage the rule as to the proportion laid down in the annexure to r. 3 comes into operation.
If the 30% which is the limit set for rank promotees for absorption as full members is merely a ceiling imposed for the benefit of direct recruits, as rightly held by the learned Judges, it is difficult to see how the rule could be Held to be violated because the proportion of rank promotees confirmed fell below the figure of 30.
We, therefore, consider that there was no violation of the rule as to seniority 56 prescribed by r. 4 in the appointment of the direct recruits to substantive posts before the absorption of rank promotees like the respondent.
We shall next proceed to deal with r. 5 which deals with the power of Government to effect reversions and the conditions and limitations prescribed there for.
It would be seen that cl.
(a) of r. 5 substantially reverses for the purpose of discharge or reversion the order in which confirmations are to be made as set out in r. 4.
We have held that the respondent had no right under the rules to insist on his being confirmed, on the terms of r. 4 read in the light of r. 3.
On the same line of reasoning it would follow that as direct recruits and rank promotees belonged to distinct classes the juniority for reversion had to be determined separately for each class and not on the basis of the two classes forming part of a unified force before con firmation.
If ' this test were applied, it cannot be contended that the reversion of the respondent infringed r. 5(a).
But this apart, the impugned order could also be sustained on the basis of the provision contained in cl.
(b) of r. 5 which reads: "The order of discharge laid down in sub rule (a) may be departed from in cases where such order would involve excessive expenditure on travelling allowance or exceptional administrative inconvenience.
" In the present case the Government explained their reason for the order for reversion of rank promotees in the affidavit which they filed to the writ petition in these terms: "His reversion was necessitated by the fact that a large number of Sub Inspectors on other duty in Hyderabad State reverted to this Stat e and that a number of temporary posts created for special purposes during the disturbed period immediately following the police action in Hyderabad had to be abolished and that the direct recruited Sub Inspectors had necessarily to be absorbed as Sub Inspectors as they cannot be asked to work in any lower 57 post being direct recruits to a particular category, viz., that of the Sub Inspector.
This reversion of rank promoted Sub Inspectors was rendered absolutely necessary in the exigencies of service and for administrative purposes and as such, it cannot be deemed to be arbitrary or contrary to rules or in the nature of punishment as alleged by the peti tioner.
" It was this circumstance that was stated before the High Court of Madras in the Writ Petition as that which brought the impugned order of reversion within "exceptional administrative inconvenience" provided for by the last words of the rule.
The learned Single Judge accepted as correct the facts stated by the Government as the reason for the reversion, stating: "Mr. Seshachalapathi explained that Government were in a difficult position as a consequence of the members taken in connection with the police action in Hyderabad.
A large number of persons were directly recruited as Sub Inspectors on the assurance that they would not be ousted.
I do not suggest that Government should go back on any assurance that they may have given to these direct recruits.
Far be it from me to encourage anything that might savour of bad faith on the part of Government.
But I would still say that in order that Government may keep faith with those whom they recruited directly as Sub Inspectors they cannot break faith with or ignore the rights of those who were promoted as Sub Inspectors.
" If the facts were accepted as correct, and we might point out that their accuracy was never challenged at any stage either in the High Court or before us, it appears to us that the order of reversion passed would be justified as being covered by the last words of cl.
(b) even if the order laid down in r. 5(a) were infringed.
In these circumstances it is not clear why the learned Judge should have observed: "The Government do not rest their case on Rule 5(b)" when the facts stated by Government and accepted by 8 58 him brought their action well within the scope of that clause.
In their memorandum of grounds in Writ Appeal No. 122 of 1954 which the State filed to the High Court the appellants urged: "The learned Judge failed to appreciate the special circumstances of the situation which rendered the reversion necessary in the instant case".
When the matter was before the High Court of Andhra the learned Judges observed"The learned Judge stated in his, judgment that the Government do not rest their case on Rule 5(b)".
In their turn they too accepted the case of the Government as regards the circumstances which necessitated the order of reversion and observed: "The Government frankly stated, however, that they were in a difficult position because of certain measures which they were compelled to take in connection with the police action in Hyderabad when a large number of persons were directly recruited as Sub Inspectors with the assurance that they would be entertained per manently.
In order to keep that assurance with such persons they were constrained to revert the rank promotees but there is no rule which enables the Government to do so.
" We must express our dissent from the last sentence extracted above, because r. 5(b) makes specific provision for an order of discharge laid down in cl.
(a) being departed from in cases where such order would entail "exceptional administrative inconvenience" and on the facts accepted both by the learned Single Judge and by the High Court of appeal the words extracted were attracted.
Before leaving r. 5 there is one other matter to which we desire to advert and that relates to the observation of the High Court in the judgment now under appeal which seems to imply that if the Government found itself in difficulty owing to the assurances given to the officers directly recruited, they could under the rules have solved it, not by ordering the reversion of the rank promotees but by continuing them in their officiating posts until they could be absorbed as full members of the Service.
This was one of the contentions urged by the respondent and the learned Judges say: 59 "It seems to us clear that whether they imposed merely a ceiling or whether there is an obligation upon the Government to fill up 30 per cent.
of the vacancies from among promotees, the State cannot say, on the facts, before us, that there are no vacancies for promotees as such.
" It looks to us impossible to support this view on any construction of the rules.
In effect it means either that temporary posts could not be abolished, or that approved probationers could not be reverted.
The first alternative could not obviously have been meant and the other is plainly contrary to the terms of r. 5(a) which makes provision for the reversion of approved probationers.
Of course, as a measure of relief to their subordinates and to avoid hardship to them Government might retain people in their officiating posts, but it is quite a different thing to import a legal and enforceable obligation on their part to do so.
In the view that we have taken that there has been no breach of the Service Rules in ordering the reversion of the respondent as a Head Constable, the question as to whether an infraction of a Service Rule confers a legal right which could be agitated in Court does not arise.
We do not propose, therefore, to consider that question and indeed we did not call upon learned counsel for the appellant to argue that part of his case.
The appeal is accordingly allowed, the judgment of the High Court set aside and Writ Petition No. 524 of 1953 dismissed.
In view of the order of the High Court dated February 3, 1956, by which the appellant was granted a certificate under article 133(1)(c) of the Constitution subject to the condition that the respondent would be entitled to his taxed costs incurred in this Court in any event from the appellant, there will be an order that the appellant will pay the costs of the respondents in the appeal, in this Court.
Appeal allowed.

summary:
The respondent, holding the substantive rank of a Head Constable in the Madras Police Service, was promoted to officiate as a probationary Sub Inspector and, on the completion of the period of probation, placed in the category of approved probationers for confirmation when substantive vacancies arose.
Instead of being confirmed he was, for administrative reasons, reverted to his substantive post as the number of vacancies in the post of Sub Inspectors was not sufficient to include him.
Having failed to obtain redress from the Government, he moved the High Court under article 226 of the Constitution.
Annexure 1 of r. 3 of the service rules provided that the percentage of promotions from the rank of Head Constable to that of Sub Inspector was to be "upto not more than 30% of the cadre", but provided no limitation for direct recruitment, r. 4 provided that no vacancy shall be filled by the appointment of a person who had not yet commenced his probation when an approved probationer or a probationer was available; cl.
(a) of r. 5 provided that, for want of vacancy, the probationers were to be discharged first in order of juniority and thereafter the approved probationers in order of juniority and cl.
(b) provided that this order of discharge might be departed from in cases involving, among others, exceptional administrative inconvenience.
The Single judge, who heard the matter, held that there was a violation of r. 3 of the Service Rules and directed the State not to give effect to the order of reversion if by virtue of his seniority he could be included within the 30% prescribed for rank promotees by that rule.
The Division Bench, on appeal, disagreed with the trial judge as to the scope of r. 3 but dismissed the appeal holding that the rule as to juniority prescribed by r. 5 of the service rules had not been strictly observed.
The State filed an appeal on a certificate granted by the High Court.
Held, that the words "upto and not more than 30% Of the cadre" in the Annexure 1 to r. 3, construed in the context of the provision relating to direct recruits which prescribes no limitation, clearly fix 30 as the maximum percentage of promotions 46 from the rank of Head Constables to the post of Sub Inspectors and leave the appointing authorities free to adopt any other percentage below that figure.
There could, therefore, be no infraction of the rule if the percentage of rank promotees was less than 30% of the total number of the Sub Inspectors on ' the date of the reversion in question.
Rule 4, which regulates the right of probationers and approved probationers to confirmation, applies only to the stage prior to confirmation when the integration of the rank promotees and the direct recruits takes place so as to form a united service and the proportion prescribed by r. 3 has effect.
That rule has to be separately applied to the two classes and, consequently, there was no violation of that rule in appointing direct recruits to substantive posts in preference to the respondent.
Under r. 5(a) the juniority for purposes of reversion has, on the same reasoning, to be determined separately for the direct recruits and the rank promotees who constitute separate classes.
Even otherwise, the impugned order could be sustained under r. 5(b) in view of the case of administrative inconvenience made by the Government and accepted by the Courts below.


judgement:
Criminal Appeal No. 63 of 1957.
Appeal from the judgment and order dated March 2, 1956, of the Bombay High Court in Cr. A. No. 1258 of 1955.
H. R. Khanna and R. H. Dhebar, for the appellant.
N. section Bindra, for the respondents (Amicus curiae).
December 9.
The following Judgment of the Court was delivered by AYYANGAR, J.
This appeal on a certificate under article 134(1) of the Constitution granted by the High Court of Bombay, principally raises for consideration the application and scope of article 20(2) of the Constitution and s.26 of the . 109 The facts necessary for the appreciation of the points involved in this appeal are few and may be briefly stated.
The two respondents section L. Apte and Miss Dwarkabai Bhat were respectively the Managing Director, and the Managing Director of the Women 's department, of an insurance Company by name 'The Long Life Insurance Company ' which had its headquarters at Poona.
A power of attorney had been executed by the company in favour of the first respondent in June, 1942, under which he was vested with the power, control and possession inter alia of the moneys belonging to the company with a view to have them invested in proper securities.
The second respondent as Manaaing Director also acted under another power of attorney executed by the company in her favour in or about June, 1942, and by virtue thereof she was assisting the first respondent in main taining the accounts of the company.
While the respondents were thus functioning, an audit conducted in 1952 disclosed that considerable sums of money amounting to over Rs. 55,000 were shown as cash balances with the first respondent.
Further enquiries made by the Directors showed that moneys aggregating to over Rs. 95,000 had from time to time been withdrawn from the company by the first respondent with the assistance and sanction of the second respondent, professedly for the expenses of the company.
Among the papers of the company was a voucher dated August 9, 1952, evidencing the withdrawal of this amount by the first respondent and signed by him and this also bore the signature of the second respondent in token of her sanction.
The respondents, however, could furnish no proper account of the legitimate expenses of the company for which the amount was purported to be taken.
Both the respondents were thereupon prosecuted for an offence under section 409 of the Indian Penal Code and also for an offence under section 105 of the Indian Insurance Act in Criminal Case 82 of 1953.
The learned Magistrate convicted and sentenced both the respondents for both the offences with which they were charged.
The respondents thereupon filed 110 appeals to the Court of the Sessions Judge, Poona and the learned Sessions Judge, by his order dated May 3, 1954, while confirming the conviction and sentence on the respondents under section 409 of the Indian Penal Code set aside their conviction under section 105 of the Indian Insurance Act.
The reason for the latter order was the finding of the learned Sessions Judge that the sanction required by section 107 of the Indian Insurance Act which was a prerequisite for the initiation of the prosecution under section 105 had not been obtained before the complaint in respect thereof had beed filed.
The conviction and sentence under section 409 of the Indian Penal Code which had been affirmed by the Sessions Judge in both the cases have now become final.
Subsequetly the Insurance Company obtained the sanction of the Advocate General of Bombay under section 107 of the Indian Insurance Act and filed a complaint in the Court of the Judicial Magistrate, Poona, on January 18, 1955, against the two respondents charging each of them with an offence under section 105 of the Indian Insurance Act.
The Magistrate took the case on file and directed the issue of process.
Thereupon the two respondents made an application before the Magistrate on March 22, 1955, praying that the complaint against them may be dismissed as being barred by section 403(1) of the Criminal Procedure Code, by reason of their previous conviction by the Magistrate for the same offence under the Insurance Act and their acquittal in respect thereof by the Sessions Judge, pleading in addition that when the conviction by the Magistrate stood, they had even undergone a portion of the sentence imposed.
The learned Magistrate overruled this plea on the ground that the acquittal of the respondents was not on the merits of the case, but for lack of sanction under section 107 of the Indian Insurance Act which rendered the Magistrate without jurisdiction to entertain the complaint.
The trial was then proceeded with and evidence was led.
But finally the Magistrate acquitted the respondents on the ground that article 20(2) of the Constitution and section 26 of the were a bar to their 111 conviction and punishment.
The State of Bombay thereupon filed an appeal to the High Court under section 417 of the Criminal Procedure Code.
The appeal was dismissed by the learned Judges who however granted a certificate on the strength of which this appeal has been preferred.
As the prosecution against the respondents under section 105 of the Insurance Act has been held to be barred by reason of the provisions contained in article 20(2) of the Constitution and section 26 of the , it would be convenient to set out these provisions before entering on a discussion of their content and scope.
Article 20(2) of the Constitution runs: "No person shall be prosecuted and punished for the same offence more than once.
" Section 26 of the enacts: "Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence." As the application of these two provisions is conditioned by the identity of the two offences which form the subject of the prosecution or prosecutions, we might as well reproduce the relevant provisions constituting the two offences, viz., section 409 of the Indian Penal Code and section 105 of the Indian Insurance Act: "409.
Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
" Criminal breach of trust referred to in the section is defined in section 405 of the Indian Penal Code in these terms: "405.
Whoever, being in any manner entrusted 112 with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged.
or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits 'criminal breach of trust '.
" The offence created by the Indian Insurance Act is as follows: "105.
(1) 'Any director, managing agent, manager or other officer or employee of an insurer who wrongfully obtains possession of any property of the insurer or having any such property in his possession wrongfully withholds it or wilfully applies it to purposes other than those expressed or authorised by this Act shall on the complaint of the Controller made after giving the insurer not less than fifteen days ' notice of his intention, or, on the complaint of the insurer or any member or any policy holder thereof, be punishable with fine which may extend to one thousand rupees and may be ordered by the Court trying the offence to deliver up or refund within a time to be fixed by the Court any such property improperly obtained or wrong fully withheld or wilfully misapplied and in default to Buffer imprisonment for a period not exceeding two years.
(2)This section shall apply in respect of a provident society as defined in Part III as it applied in respect of an insurer." Before addressing ourselves to the arguments urged before as by the Yearned Counsel for the appellant State it is necessary to set out one matter merely to put it aside.
The entire argument on behalf of the State before the High Court proceeded on denying that the order of a Criminal Court passed under section 105 of the Indian Insurance Act directing the accused to "deliver up or refund. any such property improperly withheld or wilfully misapplied" was a "punish ment" within either article 20(2) of the Constitution or 113 section 26 of the .
The learned Judges of the High Court rejected this contention.
Though learned Counsel for the appellant originally submitted that he was contesting this conclusion of the High, Court, he did not address us any argument under that head and we do not therefore find it necessary to dwell on this point any further, but shall proceed on the basis that a direction by the Magistrate to replace the moneys of the insurer with a penalty of imprisonment in default of compliance therewith was a "punishment" within article 20(2) of the Constitution and section 26 of the .
Turning to the main points urged before us, we may premise the discussion by stating that it was not disputed before us by learned Counsel for the State, as it was not disputed before the learned Judges of the High Court, that the allegations to be found in the original complaint in Criminal Case 82 of 1953 on which the conviction under section 409 of the Indian Penal Code was obtained were similar to the allegations to be found in the complaint under section 105 of the Indian Insurance Act.
It should, however, be mentioned that there was not any complete identity in the statement of facts which set out the acts and omissions on the part of the respondents which were alleged to constitute the two offences section 409 of the Indian Penal Code and section 105 of the Insurance Act.
For instance, in the complaint which has given rise to this appeal, the crucial paragraphs detailing the allegations are 12 and 13 of the complaint which run: "12.
The company submits that the accused has thus wrongfully obtained possession of Rs. 95,000 or having that property in his possession wrongfully withheld it or wilfully applied it to purposes other than those expressed or authorised by the , and committed an offence on the 9th August, 1952, under Sectionof the ." "13.
The company through their Solicitorscalled upon the accused to explain his conduct within7 15 114 days from the receipt of the letter.
The accused has failed and neglected to reply to the said letters.
" It is obvious that on these allegations alone the offence of criminal breach of trust could not be established as they lack any reference to any entrustment or to the dishonest intent which are the main ingredients of the offence of criminal breach of trust.
But to this point about the difference in the ingredients of the two offences we shall revert a little later.
Even assuming that the allegations to be found in the two complaints were identical, the question, however, remains whether to attract the ban imposed by either article 20(2) of the Constitution or section 26 of the General ClausesAct on a second punishment, it is sufficient that the allegations in the two complaints are substantiallythe same or whether it is necessary further that theingredients which constitute the two offences should be identical.
We shall first take up for consideration article 20(2) of the Constitution whose terms we shall repeat: "20.
(2) No person shall be prosecuted and punished for the same offence more than once.
" To operate as a bar the second prosecution and the consequential punishment thereunder, must be for "the same offence".
The crucial requirement therefore for attracting the Article is that the offences are the same, i.e., they should be identical.
If, however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked.
It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out.
It would be seen from a comparison of section 105 of the and a. 405 of Indian Penal Code (a. 409 of the Indian Penal Code being only an aggravated form of the same offence) that though some of the necessary ingredients are common they differ in the following: (1)Whereas under a. 405 of the Indian Penal Code the accused must be "entrusted" with property or with "dominion over that property", under section 105 of 115 the the entrustment or dominion over property is unnecessary it is sufficient if the manager, director, etc. "obtains possession" of the property.
(2)The offence of criminal breach of trust (section 405 of the Indian Penal Code) is not committed unless the act of misappropriation or conversion or "the disposition in violation of the law or contract", is done with a dishonest intention, but section 105 of the postulates no intention and punishes as an offence the mere withholding of the property whatever be the intent with which the same is done, and the act of application of the property of an insurer to purposes other than those authorised by the Act is similarly without reference to any intent with which such application or misapplication is made.
In these circumstances it does not seem possible to say that the offence of criminal breach of trust under the Indian Penal Code is the "same offence" for which the respondents were prosecuted on the complaint of the company charging them with an offence under section 105 of the .
This aspect of the matter based on the two offences being distinct in their ingredients, content and scope was not presented to the learned Judges of the High Court, possibly because the decisions of this Court construing and explaining the scope of article 20(2) were rendered later.
In Om Prakash Gupta vs State of U.P. (1) the accused, a clerk of a municipality had been convicted of an offence under section 409 of the Indian Penal Code for having misappropriated sums of money received by him in his capacity as a servant of the local authority and the conviction had been affirmed on appeal, by the Sessions Judge and in revision by the High Court.
The plea raised by the accused before this Court, in which the matter was brought by an appeal with special leave, was that section 409 of the Indian Penal Code had been repealed by implication by the enactment of sub sections
(1) (c) and (2) of section 5 of the Prevention of Corruption Act because the latter dealt with an offence of substantially the same type.
This Court repelled that contention.
It (1) ; 116 analysed the ingredients of the two offences and after pointing out the difference in the crucial elements which constituted the offences under the two provisions, held that there was no repeal of section 409 of the 'Indian Penal Code implied by the constitution of a new offence under the terms of the Prevention of Corruption Act.
It was the application of this decision and the ratio underlying it in the context of article 20(2) ,of the Constitution that is of relevance to the present appeal.
The occasion for this arose in State of Madhya Pradesh vs Veereshwar Rao Agnihotry (1).
The res pondent was a tax collector under a municipality and was prosecuted for offences among others under section 409 of the Indian Penal Code and s 5(2) of the Prevention of Corruption Act for misappropriation of sums 'entrusted to him as such tax collector.
By virtue of the provision contained in section 7 of the Criminal Law Amendment Act, XLVI of 1952, the case was transferred to a Special Judge who was appointed by the State Government after the prosecution was commenced before a Magistrate.
The Special Judge found the accused guilty of the offence under section 409 of the Indian Penal Code and convicted him to three years ' rigorous imprisonment but as regards the charge under section 5(2) of the Prevention of Corruption Act, he acquitted the accused on the ground of certain procedural non compliance with the rules as to investigation prescribed by the latter enactment.
The respondent appealed to the High Court against this conviction and sentence under section 409 of the Indian Penal Code and there urged that by reason of his acquittal in res pect of the offence under section 5(2) of the Prevention of Corruption Act, his conviction under section 409 of the Indian, Penal Code could not also be maintained, the same being barred by article 20(2) of the Constitution.
The High Court of Madhya Bharat accepted this argument and allowed the appeal and the State challenged the correctness of this decision by an appeal to this Court.
Allowing the appeal of the State, Govinda Menon, J., delivering the judgment of the Court observed: (1)[1957] S.C.R. 868: 117 "This Court has recently held in Om Prakash Gupta vs The State of U.P. that the offence of criminal misconduct punishable under section 5(2) of the Prevention of Corruption Act, 11 of 1947, is not identical in essence, import and content with an offence under section 409 of the Indian Penal Code In view of the above pronouncement, the view taken by the learned Judge of the, High Court that the two offences are one and the same, is wrong, and if that is so, there can be no objection to a trial and conviction under section 409 of the Indian Penal Code, even if the respondent has been acquitted of an offence under section 5(2) of the Prevention of Corruption Act, II of 1947 The High Court also relied on article 20 of the Constitution for the order of acquittal but that Article cannot apply because the res pondent was not prosecuted after he had already been tried and acquitted for the same offence in an earlier trial and, therefore, the well known maxim "Nemo debet bis vexari, si constat curiae quod sit pro una et eadem causa" (No man shall be twice punished, if it appears to the court that it is for one and the same cause) embodied in article 20 cannot apply" Before leaving this part of the case we might also point out that a similar view of the scope of the rule as to double jeopardy has always been taken by the Courts in America.
The words of the Vth Amendment where this rule is to be found in the American Constitution are: "Nor shall any person be subject, for the same offence, to be twice put in jeopardy of life or limb." and it will be noticed that there as well, the ban is confined to a second prosecution and punishment for the same offence.
Willoughby after referring to the words quoted in the Fifth Amendment says: "Cases may occur in which the same act ma y render the actor guilty of two distinct offences; In such cases the accused cannot plead the trial and acquittal, or the conviction and punishment for one offence in bar to a conviction for the other"(1).
In Albrecht vs (1)Constitution of the United States, Vol.
II. p. 1158.
, 118 United States (1) Brandeis, J., speaking for a unanimous Court said: "There is a claim of violation of the Vth Amendment by the imposition of double punishment.
This contention rests upon the following facts.
Of the nine, counts in the information four charged illegal possession of liquor, four illegal sale and one maintaining a common nuisance.
The contention is that there was double punishment because the liquor which the defendants were convicted for having sold is the same that they were convicted for having possessed.
But possessing and selling are distinct offences.
One may obviously possess without selling; and one may sell and cause to be delivered a thing of which he has never had possession; or one may have possession and later sell, as appears to have been done in this case.
The fact that the person sells the liquor which he possessed does not render the possession and the sale necessarily a single offence.
There is nothing in the Constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction which it has power to prohibit and punishing also the completed transaction.
" If, therefore, the offences were distinct there is no question of the rule as to double jeopardy as embodied in article 20(2) of the Constitution being applicable.
The next point to be considered is as regards the scope of section 26 of the .
Though section 26 in its opening words refers to "the act or omission constituting an offence under two or more enactments", the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged.
This is made clear by the concluding portion of the section which refers to "shall not be liable to be punished twice for the same offence,".
If the offences are not the same but are distinct, the ban imposed by this provision also cannot be invoked.
It therefore follows that in the present case as the respondents are not being sought to be punished for "the (1) (1927) 273 TT.S. I: ; 119 same offence" twice but for two distinct offences con stituted or made up of different ingredients the bar of the provision is inapplicable.
In passing, it may be pointed out that the construction we have placed on article 20(2) of the Constitution and section 26 of the is precisely in line with the terms of section 403(2) of the Criminal Procedure Code which runs: "403.
(2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under section 235, sub section (1).
" It would be noticed that it is because of this provision that the respondents before us were originally charged before the Magistrate in Criminal Case 82 of 1953 with offences under section 409 of the Indian Penal Code as well as section 105 of the Indian .
The respondents in this case did not appear in this Court and as the appeal had to be heard ex parte Mr. N. section Bindra was requested to appear as amicus curiae to assist the Court at the hearing of the appeal.
We express our thanks to him for the assistance he rendered.
The appeal is accordingly allowed and the judgment and the order of the High Court is set aside and the case will go back to the Judicial Magistrate, Fourth Court, Poona, for being proceeded with according to law.
Appeal allowed.
Case remanded.

summary:
By article 20(2) of the Constitution "No person shall be prose cuted and punished for the same offence more than once.
" Section 26 of the , provides, "Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.
" The respondents were both convicted and sentenced by the Magistrate under section 409 Of the Indian Penal Code and section 105 Of the Insurance Act.
The Sessions judge on appeal upheld the conviction and sentence under section 409 of the Indian Penal Code, but set aside the conviction and sentence under section 105 of the Insurance Act on the ground that no sanction under section 107 of the Insurance Act had been obtained.
Sanction was thereafter obtained and a fresh complaint was filed against the respondents under section 105 of the Insurance Act.
The trial ended in an acquittal by the Magistrate who held that article 20(2) Of the Constitution and also section 26 of the were a bar to conviction.
The State appealed to the High Court against the 108 order of acquittal but the appeal was dismissed.
On further appeal by the State, Held, that the crucial requirement to attract article 202) Of the Constitution is that the two offences should be identical.
it is, therefore, necessary to analyse and compare the ingredients of the two offences, and not the allegations made in the two complaints, to see whether their identity is established.
So judged, there can be no doubt that in spite of the presence of certain common elements between the two, the offences under section 409 of the Indian Penal Code and section, 105 of the Insurance Act are distinct in their ingredients, content and scope and cannot be said to be identical.
Om Prakash Gupta vs State of U. P., ; and State of Madhya Pradesh vs Veereshw ar Rao Agnihotry; , , referred to.
A similar view of the scope of the rule as to double jeopardy has always been taken by the American Courts.
Albrecht vs United States, ; 71 Law Ed. 505, referred to.
In section 26 of the also the emphasis is not on the facts alleged in the two complaints but on the ingredients of the two offences charged.
This construction of article 20(2) of the Constitution and section 26 of the , is precisely in line with section 403(2) of the Code of Criminal Procedure.
Consequently, it could not be said, in the instant case, that the respondents were being sought to be punished for the same offence so as to attract either article 20(2) Of the Constitution or section 26 of the .