judgement:
ivil Appeal No. 325 of 1965.
Appeal by special leave from the Award dated September 20, 1963 of the Central Government Industrial Tribunal, Bombay in Reference CG IT 25 of 1962.
section V. Gupte, Solicitor General, M. Rajagopalan and K. R. Choudhuri, for the appellants.
C. B. Agarwala, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the respondents.
The Judgment of the Court was delivered by Hidayatullah J.
This is an appeal by special leave against an award dated September 20, 1963 made by the Presiding Officer of the Central Government Industrial Tribunal, Bombay in a reference made by the Government of India under section 10(2) of the .
The appellants are the workmen of the Bombay Port Trust, who are and have been represented in this dispute by the Bombay Port Trust Employees ' Union.
The respondents to this appeal are the trustees of the Port of Bombay.
The reference was made on a joint application of the parties.
and the matter in dispute was stated to be : "Whether the existing system of work of the shore crew of the Prince 's and Victoria Docks under which each shift consists of 8 hours ' normal duty, 2 hours ' variable recess and 12 hours ' overtime needs any modification? The Tribunal, by the award impugned here, held that the Union was not able to establish that the existing system of work needed any modification.
The Port Trust had under its control several docks.
Reference in this judgment will be made to the Prince 's and Victoria Docks, the Alexandra Docks, Butcher Island and the Flotilla Crew.
These represent different areas of work where different groups of workmen were employed.
From the facts appearing on the record it appears that the Trustees first introduced a two shift system of work in the Alexandra Docks on June 30, 1953 and the same system was extended to the Prince 's and Victoria Docks on December 15, 1953.
Previously, the shore crew at all these places worked in a single shift and were liable to be called out at 634 any hour of the day or night.
When the two shift system began, each shift of 12 hours was broken up into 8 hours ' duty, 2 hours ' variable recess and 2 hours ' overtime.
The hours of rest were kept variable as they depended on the tides.
In 1956 the workmen, who were then represented by the Port Trust General Workers ' Union, made a demand for a fixed recess of two hours.
The Trustees apprehended that this was a device to get 4 hours ' overtime and rejected the demand.
The General Workers Union was informed that if the demand was pressed a three shift system would be introduced.
The workmen then retraced their steps and accepted a 2 hours ' variable recess but requested that it should be as near the middle of the shift as possible.
The Trustees agreed to accept the hours of rest at fixed hours in the Alexandra Docks but at the Prince 's and Victoria Docks they kept it variable agreeing to fix it as near the middle of the duty hours as possible.
Under this arrangement the shore crew working at the Prince 's and Victoria Docks were informed each day what the period of rest would be on the following day.
In explanation of this difference it may be pointed out that the Alexandra Docks work on a system of lock gates which enables the depth of water at the docks to be artificially regulated but the Prince 's and Victoria Docks, being tidal, work only at high tide.
It was thus possible to fix rest hours at the Alexandra Docks for half the crew different from the rest hours of the other half so that a part of the crew was always available on hand.
As the lock gates control the depth of water in the Alexandra Docks, fixed hours of rest could be maintained from day to day except in the monsoon months when the, storm gates had some time to be closed.
During these months recess time at the Alexandra Docks was also variable and was made to coincide with the closure of the storm gates.
The workmen at the Alexandra Docks seemed to have accepted a variable recess of two hours but the Port Trust gave a notice under section 9A of the on June 25, 1960 announcing the introduction of variable recess although in the months other than the monsoon months recess was actually at fixed hours.
The workmen opposed the change from fixed to variable recess.
Meanwhile studies were being made and it was found that the work hours at the different Docks were not equal: they were heavier at the Alexandra Docks than at the other docks.
The Trustees, therefore, resolved that the shore crew at the Alexandra Docks should work for 8 hours and that there should be a variable recess of one hour and overtime of three hours should be paid.
Thus the 12 hours ' shift at the Alexandra Docks was 8 hours ' of duty, 3 hours ' overtime and one hour variable recess.
This system was, however, 635 not extended to the prince 's and Victoria Docks and Butcher Island.
At these docks 8 hours ' duty, 2 hours ' rest at variable times and 2 hours ' overtime were prescribed.
The claim of the shore crew at the Prince 's and Victoria Docks and Butcher Island for reducing the hours of rest and increasing overtime to three hours was not accepted because the amount of work in the, opinion of the Trustees did not justify the change.
The Union contended that this division of 12 hours ' shift into 8 hours ' work, 2 hours ' rest and 2 hours ' overtime violated the provisions of the and that the so called period of rest was illusory since, being variable, it was some times given right at the commencement of the shift and some times at the end, depending on the tides or the exigencies of the work.
The Union claimed that a 12 hours ' shift should be divided into 8 hours ' work and 4 hours ' overtime as was the case with the Flotilla Crew.
This claim was opposed by the Trustees.
According to them, there was no breach of the provisions of the .
They contended that, regard being had to the number of actual work hours, the case of shore crew at the Prince 's and Victoria Docks and the Butcher Island could not be compared with that of the crew at the Alexandra Docks or the Flotilla Crew.
The Tribunal accepted the entire case put forward on behalf of the Trustees and the Union has appealed to this Court.
On behalf of the Union the learned Solicitor General has argued the case almost entirely from the legal stand point and has attempted to establish that the break up of a 12 hours ' shift into 8 hours ' duty, 2 hours ' rest and 2 hours ' overtime offends the .
He, has in addition submitted that the system of variable recess does not satisfy the requirements of rest which is the basis for fixing statutorily the hours of work in relation to wages.
The was enacted to enable Government to fix minimum rates of wages in certain employments.
Since fixation of minimum wages must take into account the work load also, provision must not only be made for prescribing the minimum wage but to correlate it to a specified amount of work.
Any extra work beyond the specified work load must be paid for at a higher or what is known as "overtime" rate.
Similarly, intervals of rest must punctuate suitably the hours of work and they must also be provided for in a scheme of the work day of a workman.
The makes provision for all these matters either by itself or through Rules.
The Central Government has framed the Minimum Wages (Central) Rules, 1950.
The Act and the 636 Rules between them provide not only for fixation of minimum wages but also for the work load in relation to which the minimum wages are to be prescribed.
They provide on the one hand for minimum wages, lay down the procedure for fixing or revising them and prescribe the rules in accordance with which the wages must be paid.
On the other hand, the Act and the Rules fix the number of hours of work, payment of overtime and for hours of rest in the work day of the workman.
The provisions of the Act and of the Rules are applicable to some employments only and they are shown in a Schedule appended to the Act.
It is admitted that the present workmen come under the Schedule.
The hours of work and the payment of overtime are, therefore, governed by the provisions of the and the Minimum Wages (Central) Rules, 1950 and the controversy in this case must be appreciated and resolved in accordance with them.
We shall now turn to these provisions.
We are concerned with two sections and two rules.
The sections are Nos. 13 and 14 and the rules Nos. 24 and 25.
The whole of the matter in dispute admittedly is governed by these, four provisions.
We shall begin by setting out the relevant parts of these provisions : "13.
Fixing hours for a normal working day, etc.
(1) In regard to any scheduled employment minimum rates of wages in respect of which have been fixed under this Act, the appropriate Government may (a) fix the number of hours of work which shall constitute a normal working day, inclusive of one or more specified intervals; (b) provide for a day of rest in every period Of seven days which shall be allowed to all employees or to any specified class of em ployees and for the payment of remuneration in respect of such days of rest; (c) provide for payment of work on a day of rest at a rate not less than the overtime rate.
(2) The provisions of sub section (1) shall, in relation to the following classes of employees, apply only to such extent and subject to such conditions as may be prescribed: (a). . . . . . 637 (b). . . . . . (c) employees whose employment is essentially intermittent; (d). . . . . . (e). . . . . . (3) For the purposes of clause (c) of sub section (2), employment of an employee is essentially intermittent when it is declared to be so by the appropriate Governmen t on the ground that the daily hours of duty of the employee, or if there be no daily hours of duty as such for the employee, the hours of duty, normally include, periods of inaction during which the employee may be on duty but is not called upon to display either physical activity or sustained attention.
" 14. Overtime.
(1) Where an employee, whose minimum rate of wages is fixed under this Act by the hour, by the day or by such a longer wage period as may be prescribed, works on any day in excess of the number of hours constituting a normal working day, the employer shall pay him for every hour or for part of an hour so worked in excess at the overtime rate fixed under this Act or under any law of the appropriate Government for the time being in force, whichever is higher.
(2) Nothing in this Act shall prejudice the operation of the provisions of section 59 of the in any case where those provisions are applicable.
" Rule 24.
"Number of hours of work which shall constitute a normal working day (1) The number of hours which shall constitute a normal working day shall be: (a) in the case of an adult, 9 hours, (b) in the case of a child, 41 hours.
(2) The working day of an adult worker shall be so arranged that inclusive of the intervals for rest, if any, it shall not spread over more than twelve hours on any day.
638 (3) The number of hours of work in the case of an adolescent shall be the same as that of an adult or a child according as he is certified to work as an adult or a child by a competent medical practitioner approved by the Central Government.
(4). . . . . . (4 A) No Child shall be employed or permitted to work for more than 4 1/2 hours on any day.
(5) Nothing in this rule shall be deemed to affect the provisions of the ".
Rule 25.Extra wages for overtime (1) When a worker works in an employment for more than nine hours on any day or for more than forty eight hours in any week, he shall, in respect of overtime work, be entitled to wages, (a) in the case of employment in Agriculture, at one and a half time the ordinary rate of wages; (b) in the case of any other scheduled employment, at double the ordinary rate of wages.
Explanation The expression "ordinary rate of wages" means the basic wage plus such allowances including the cash equivalent of the advantages accruing through the concessional sale to the person employed of foodgrains and other articles as the person employed is for the time being entitled to but does not include a bonus.
(2) A register showing overtime payment shall be kept in form IV.
(3) Nothing in this rule shall be deemed to affect the provisions of the ." The controversy in the present case is a narrow one.
It is whether the fixing of a two hours ' rest and two hours ' overtime involves a breach of the two sections of the Act and the two rules quoted here ? The workmen claim that under a scheme of 12hour shifts with 8 hours ' work, overtime should be at least 3 hours, if not 4, and by fixing only two hours ' overtime the Trustee are B guilty of the breach of the Act and the Rules.
Unfortunately the provisions of the and the Minimum Wages 639 (Central) Rules, 1950, are not as clear as the corresponding provisions of the and they have led to long arguments before us.
We shall refer to the provisions of the later because for the present we must consider the provisions of the Act and the Rules without drawing any assistance from the .
Section 13 of the Act does not itself fix the hours of work or rest or overtime.
That is done by the Rules.
Section 13 only authorises Government to fix the number of hours which shall constitute a normal working day, inclusive of on, .
or more specified intervals.
The normal working day thus includes (a) hours of actual duty, and (b) one or more specified intervals.
There may be one interval of rest or there may be more intervals but whatever their number, they must be specified.
By interval under section 13 is obviously meant interval of rest and this is clear from Rule 24(2).
There is no definition of interval either in the Act or the Rules but the provisions of section 13 (2) (c) read with section 13 (3) give us an indication of what is meant by an interval of rest.
It means a break in the work during which a workman, though present on duty, is not called upon to display either physical activity or sustained attention.
But it is not a period of more inaction because there is no work for him.
If it is the latter, it is counted as actual work period: if the former, it is counted as a period of rest, provided the period is specified beforehand, and the workman is neither called upon to work nor expected to work.
Having thus distinguished between period of work and interval of rest we may now turn to Rule 24 which prescribes the number of hours of work which is to constitute a normal working day.
Sub rule (1) (a) provides that the number of hours constituting a normal working day for an adult shall be 9.
As the heading of the Rule shows these are the hours of work.
Sub rule (2) then lays down that the working day of an adult shall be so arranged that inclusive of intervals for rest it shall not spread over more than twelve hours on any day.
The distinction between intervals of rest and hours of work is thus made clear.
From this it follows that on any single day the number of hours of work must not exceed 9 and together with the hours of rest the total period of work and rest should not go beyond 12 hours.
It is wrong to contend that the period of 9 hours must always include intervals of rest.
It may or it may not.
There is no provision in the Act and the Rules corresponding to section 55 of the Factories 640 Act to which reference will be made hereafter.
In a 12 hour shift, the nine hours of work on any day can be spread over 12 hours and the extra hours will necessarily be hours of rest.
The contention of the workmen is that section 13 fixes the number of hours in a normal working day and this number is inclusive of one or more specified intervals.
They read Rule 24, which prescribes a normal working day of 9 hours, as including within the 9 hours one or more intervals of rest.
We do not think this is a correct reading either of section 13 or of Rule 24.
There is clear antinomy between hours of work and intervals of rest in sub rules (1) and (2) of Rule 24 and the phrase 'inclusive of one or more specified intervals ' governs the normal working day and not the number of hours of work.
Under sub rule (2) of Rule 24 the working day of an adult can be so arranged that inclusive of intervals of rest it does not exceed 12 hours on any day.
A working day may extend to 12 hours but the number of hours of work cannot exceed 9.
A working day of 12 hours is thus made up of hours of work and hours of rest and the number of hours of work (which cannot exceed 9) is part of the normal working day which may also include one or more specified intervals of rest.
This determines what is a normal working day and what is meant by an interval of rest.
We now come to the question of overtime.
If work on any day is taken which goes beyond 9 hours the provisions of section 14 apply.
That action speaks of overtime.
Overtime is payable for work in excess of the number of hours constituting a normal working day.
From section 13 read with Rule 24 we know that the number of hours constituting a normal working day is 9.
We shall now read into section 14 this number leaving out those provisions which have no bearing upon the matter.
The section so read lays down : "Where an employee. . . works on any day in excess of 9 hours, the employer shall pay him for every hour or for part of an hour so worked in excess at the overtime rate. . . " Under Rule 25 (1) (b) this overtime rate is double the ordinary rate of wages.
Therefore, an employer can take actual work on any day upto 9 hours in a 12 hour shift, but he must pay a double rate for any hour or part of an hour of actual work in excess of 9 hours.
He need not, however, pay for any interval of rest provided it is specified beforehand.
These provisions are subject to 641 one more check which we may now mention.
The check is found in the latter part of Rule 25(1) which says that the maximum number of hours of work in a week shall not exceed 48 and for any work in excess of 48 hours a week overtime shall be payable.
As there is a prescribed day of rest in a week we get a working week of six days with a maximum of 48 hours ' work.
Average duration of actual work payable at ordinary rate of wages per day thus comes to 8 hours.
Thus if an employer takes actual work for 8 hours per day on 6 days in a week he complies with all the provisions and need not pay overtime.
He may go up to 9 hours on any day without paying any overtime provided he does not exceed 48 hours in the week.
He can specify the intervals of rest and spread the 8 hours or 9 hours, as the case may be, together with intervals of rest over 12 hours in a twelvehour shift.
These periods of rest must not be periods during which the workman is on duty and inaction is due to want of work for him, but they must be pre determined periods of inaction during which the workman is neither called upon nor expected to display physical activity or sustained attention.
We have seen that an employer having a 12 hour shift can fix 48 hours of work per week of six days at 8 hours per day.
He is not compelled to give overtime for the remaining four hours unless he takes work during those hours, provided he has specified those hours as intervals of rest.
If he takes work during the extra 4 hours or fails to specify the hours of rest he must pay overtime.
He can spread 8 hours with intervals of rest to 9, 10, 11 or 12 hours as he likes.
For the hours of rest he is not required to pay overtime but he must specify those hours.
Overtime under section 14 is only payable when the workman works in excess of the number of hours constituting a normal working day.
That number is 9 hours for any day and work up to 9 hours on any day can be taken without paying overtime if the total number of hours in the week does not exceed 48.
As in the present case the total number of hours of work in a week is 48 (8 hours per day for 6 days) overtime is payable for that hour or part of an hour beyond the 8 hours in which the workman is either made to work or the interval is not specified.
The Port Trust can say that it will not take more than two hours extra work on any day and specify the remaining two hours as the intervals for rest.
It is, not compelled to fix only one interval or to make the interval of one hour only.
It can fix two or three or even four without in any way going against the provisions of section 13 or Rule 24.
642 At this stage it is instructive to look into the provisions of the dealing with the daily hours of work, intervals for rest and spread over of the working time.
Sections 54, 55 and 56 are the relevant provisions.
Omitting the portions not necessary for the purpose of comparison, these sections read "54.
Daily hours.
"54.Daily hours Subject to the provisions of section 51, no adult worker shall be required or allowed to work in a factory for more than nine hours in any day Provided. . . "55.
Intervals for rest.
(1) The periods of work of adult workers in a factory each day shall be so fixed that no period shall exceed five hours and that no worker shall work for more than five hours before he has had an interval for rest of at least half an hour.
(2). . . . "56.
Spread over.
The periods of work of an adult worker in a factory shall be so arranged that inclusive of his intervals for rest under section 55 they shall not spread over more than ten and a half hours in any day: Provided that the Chief Inspector may, for reasons to be specified in writing, increase the spread over to twelve hours.
" Almost the same provisions are to be found in some other Acts of the State Legislatures controlling shops, establishments etc.
It will be noticed that the arrangement of these sections is almost the same as the cognate provisions of the .
Here too, the hours of work cannot be more than 9 in a day and taken with the intervals for rest these 9 hours may be spread over 10 1/2 hours.
The only difference is that a worker must not be made to work for more than 5 hours at a stretch before he has had an interval for rest of half an hour at the least.
There is no provision in the which breaks up the hours of work by interposing a compulsory period of rest as is done by the latter part of section 55 of the .
The reason, perhaps, is that in some employments time for work depends on some 643 extraneous factors and hours of rest cannot always be fixed to, break up those hours.
It is proverbial that time and tide do not wait for any man.
Workers at a tidal dock must work when the tide is in and take their rest when the tide is out.
It is for this reason that a variable recess is in force at the Prince 's and Victoria Docks and due.
notice of the interval is given by specifying a day in advance the hours of rest.
We do not think that the Trustees are guilty of infraction of the by keeping the recess variable so long as they specify in advance the recess on any particular day.
It will also be noticed that the scheme of the compels the inclusion of an hour of rest in a normal working day.
This is achieved by pres cribing that the hours of work in a six day week shall not exceed 48, although on any particular day the hours of work in a day may go up to 9.
In this indirect way one hour of rest is included in a normal working day because the total number of work hours in a six day week cannot go beyond 48.
What has not been done by the Act or the Rules is to specify that the interval for rest shall break up the hours of work.
The Trustees cannot be compelled to break up the hours of work by interposing intervals for rest, if owing to the nature of the work there is difficulty in giving the intervals for rest in that manner on any particular day.
According to their resolution the recess is fixed as near the middle of the work as possible, depending on the tides.
The workmen compared the case of the Prince 's and Victoria Docks with the cases of the Alexandra Docks and the Flotilla Crew.
They point out that in the former there is 3 hours ' overtime and in the latter there is 4 hours of overtime in the 12 hour shifts, but at the Prince 's and Victoria Docks there is 2 hours ' overtime only.
They claim equal treatment.
This is not possible.
The crew at the Prince 's and Victoria Docks work in a different way and their case cannot be compared with that of the Flotilla Crew or the crew at the Alexandra Docks.
The Flotilla Crew has to remain on duty for full 12 hours and they work as and when they are required.
Although their hours of duty are only 8 they are entitled, if present for work, for overtime up to four hours.
The crew at the Alexandra Docks get a specified interval of one hour for rest and this makes up their 9 hours which is 8 hours ' work and one hour interval for rest.
They are, therefore, entitled to three hours ' overtime if required to work beyond the 9 hours on any day.
There is no parallel in the work of the three different crew and we are satisfied that no conclusion can be based upon the practice existing at the Alexandra Docks or in 644 respect of the Flotilla Crew.
We hold, therefore, that the decision of the Central Government Industrial Tribunal is right in a circumstances of this case.
The appeal must therefore fail.
It will be but in the circumstances of the case we make no order about costs.
Appeal dismissed.

summary/full:
The respondent had under its control several docks.
The trustees Of the respondent introduced a two shift system of work and that resulted in the crew working in some docks getting 4 hours of overtime in some docks 3 hours of overtime and in others 2 hours of overtime only.
In the last category the 12 hours shift wag divided in to 8 hours of work, 2 hours of rest and 2 hours of overtime.
The 2 hours period of rest was variable depending on the tides or the exigencies of the work, though the crew were informed each day what the, period of rest would be on the following day.
The appellants, who belonged to this category, complained that the breakup of the 12 hours shift into 8 hours of duty, 2 hours of rest and 2 hours of overtime offended the , and that the system of variable recess did not satisfy the requirements of rest which is the basis for fixing statutorily the hours of work in relation to wages.
The Industrial Tribunal held that the appellants were not able to establish that the existing system of work needed any modification.
In appeal to this Court, HELD: There was no breach of the provision of the and the case of the appellants could not be compared with that of the crew working at the other docks, because, there wag no parallel in the work of the three different sets of crew.
[643 H] If an employer takes actual work for 8 hours per day on 6 days in a week he complies with the relevant provisions of the Act and the Rules, namely sections 13 and 14 of the Act and rr.
24 and 25 of the Minimum Wages (Central) Rules 1950, and need not pay overtime.
He may go up to 9 hours on any day without paying any overtime provided he does not exceed 48 hours in the week.
He can specify the intervals of rest and spread the 8 or 9 hours, as the case may be, together with intervals of rest over 12 hours in a twelve hour shift.
These periods of rest must not be periods during which the workman is on duty and inaction is due to want of work for him, but they must be predetermined periods of inaction during which the workman is neither called upon nor expected to display physical activity or sustained attention.[641 B D] In the present cage the total number of hours of work in a week was 48 (8 hours per day for 6 days).
Therefore overtime was payable beyond the period of 8 hours, for that hour or part of an hour during which the workman was either made to work or the interval of rest was not specified.
The respondent can say that it will not take more that two hours extra work on any day and specify the remaining two hours as the intervals for rest; and the Trustees would not be guilty of infraction of the Act by keeping the recess variable so long as they specify 633 in advance the recess on any particular day.
The Trustees could not be compelled to break up the hours of work by interposing intervals for rest.
[641 G H; 643 B C, D E]


judgement:
Appeals Nos. 1008 and 1009 of 1965.
Appeals by special leave from the orders dated April 1, 1965 of the Central Government Labour Court, Jullundur, in cases Nos. 409 of 1963 respectively.
C. K. Daphtary, Attorney General, section V. Gupte, Solicitor General, Niren De, Addl.
Solicitor General, K. B. Mehta, V. Sagar, H. L. Anand and B. C. Das Gupta, for the appellants.
M. K. Ramamurthi, for the respondents.
The Judgment of the Court was delivered by Wanchoo, J.
These two appeals by special leave raise a common question as to the interpretation of paragraph 5.356 of the National Industrial Tribunal (Bank Disputes) Award of June 1962 (popularly known as the Desai award) and will be dealt with together.
It is unnecessary to set out the facts of the two appeals at this stage.
It is sufficient to say that the respondents made applications under section 33 C(2) of the Industrial Disputes Act, No. 14 of 1947, praying for determination and computation of the benefit to which they were entitled under the Desai award as they were not satisfied with the fixation of their pay by the appellant bank under para 5.356.
The Desai award dealt with the method of adjustment in the scales of pay fixed by it from para 5.329 onwards.
It divided the employees of the banks with which it was concerned in two groups.
The first group consisted of workmen who were drawing basic pay on January 1, 1962 according to scales of pay provided by the ALL India Industrial Tribunal (Bank Disputes) Award, 1953 (popularly known as the Sastry award) as modified by the Labour Appellate Tribunal Decision (Bank Disputes).
The second group 900 consisted of workmen who on January 1, 1962 were employed in banks which were not governed by the provisions of the Sastry award as modified and were not thus drawing basic pay on the footing of scales of pay provided by that award.
In the first case the Desai award provided that the workmen would be fitted in the new scales of pay from January 1, 1962 on stage to stage adjustment basis, i.e., workmen who were drawing basic pay at a particular stage in the time scale of the Sastry award as modified would draw basic pay at the same stage in the new scale applicable to them under the Desai award.
Examples of how this would be done were given in para.
5.348 of the Desai award.
As to the second group, the Desai award provided that these employees would first be fitted in the appropriate scales provided in the Sastry award as modified as on January 1, 1962 and thereafter they would be fitted in the new scales of pay provided by the Desai award as laid down in para.
5.348.
Paragraph 5.356 then went on to provide how these workmen would be fitted in the Sastry award.
Here again the workmen were divided into two groups, namely, those who entered service before January 1, 1959 and those who entered service on or after January 1, 1959.
In the present appeals we are concerned with workmen who entered service before January 1, 1959, and the fitment of these workmen was dealt with in para.
5.356 of the Desai award, and it is this paragraph which calls for interpretation in the present appeals.
We may at this stage mention that a similar question of fit ment was considered by the Sastry award in para.
292 and certain provisions were made thereunder.
This paragraph was considered by the Labour Appellate Tribunal in appeal from the Sastry award and certain modifications were made thereunder by paras 164 and 166 of the Labour Appellate Tribunal decision in appeal.
Paragraph 292 as modified by the Labour Appellate Tribunal decision came up for interpretation before this Court in State Bank of India vs Prakash Chand Mehra.
(1) As the words of para 292 of the Sastry award as modified by the Labour Appellate Decision are almost the same as the words of para.
5.356 of the Desai award, we may set out the two paragraphs in parallel columns for comparison: Sastry award as modified by the Labour Appellate decision For workmen who enterd service of the bank before 31st January, 1950 1.
The workman 's basic pay as on 31st January 1960 shall not be reduced in any case.
(1) Desai award For workmen who entered service of the bank before 1st January 1959 (i) The workman 's basic pay as on January 1, 1959 shall not be reduced in any case.
Subject to rule (1) the adjusted basic pay in the new scale shall not exceed what point to point adjustment would give him or the maximum in the new scale.
3.In the matter of adjustment all efficiency bars, whether in the previously existing or in the scales fixed by us should be ignored.
4.Subject to rules (1) to (3) a workman 's basic pay in the new scales shall be fixed in the following manner (a) A workman shall first be fitted into the scale of pay fixed by our award (herein called the new scale) by placing him at the stage in the new scale equal to, or next above his basic pay as on 31st January 1950 in the pre Sen scale then in force (herein called the existing scale).
(b) To the basic pay into which he is fitted under cl.
(a) the annual increments in the new scale as from that stage onwards should be added at the rate of one increment for every completed three years of service in the same cadre as on 31st January 1950, up to a limit of 12 years ' service; hereafter one increment for every four years of service up to another 8 years service, and after that one increment for every five years of service.
(c) Such increments shall not however exceed four in number.
[NOTE : Omitted by the Labour Appellate Tribunal in view of change in cl.
(b).] 4 A.
After adjustments are made in accordance with clauses (a), (b) and (c) supra two further increments in the new scale will be added thereto for service for the two years 1951 and 1952.
In addition the workman will be entitled to draw his normal increment for 1953on 1st April 1963.
Thereafter each succeeding year 's annual increment shall take effect as and from 1st April of that year.
901 (ii) Subject to rule (i), the adjusted basic pay in the scale provided in the Sastry award as modified shall not exceed what point to point adjustment would give him or the maximum in the scale provided by the Sastry award as modified.
(iii) In the matter of adjustment, all efficiency bars, whether in the previously existing scales or in the scales provided by the Sastry award as modified should be ignored.
(iv)Subject to rules (i) to (iii) a workman 's basic pay in the scale provided by the Sastry award as modified shall be fixed in the following manner (a)A workman shall first be fitted into the scale of pay of Sastry award as modified by placing him at the stage in the Sastry award scale as modified equal to, or next above his basic pay as on 1st January, 1959 in the scale then in force in the bank concerned (hereinafter called the Bank 's scale).
(b)To the basic pay into which he is fitted under clause (a) annual increment or increment& in scale provided by the Sastry award as modified as from that stage onwards should be added at the rate of one increment for every completed three years of his service in the same cadre as on 1st January 1959.
(c) Such increments shall not however exceed four in number.
(d) After adjustments are made in, accordance with clauses (a),(b) and (c) supra, two further annual increments.
in the scale provided by the Sastry award as modified will be added thereto for service for the two years of 1960 and 1961.
902 We are not concerned with clauses (5) and (6) of para 292 of the Sastry award or with clauses (v) and (vi) of para 5.356 of the Desai award for purposes of the dispute between the parties and have not therefore set them out.
It will be seen from the above comparison of the provisions in the two awards that the substantial provisions of the Desai award are exactly the same as the provisions of the Sastry award as modified except (i) for changes necessitated by the fact that the Desai award was being given in 1962 and (ii) the provision in the Sastry award corresponding to sub cl.
(d) of cl.
(iv) of para 5.356 of the Desai award was separated by the Labour Appellate Tribunal Decision from cl.
(4) and made clause (4 A).
"We have already referred to the fact that para.
292 of the Sastry award as modified came up for consideration before this Court in the case of Prakash Chand Mehra( ') and this Court interpreted clauses (1) to (4 A) of the Sastry Award as modified thus :"We have therefore first to fix the basic pay in accordance with rule 4(a), and then allow annual increments in accordance with rule 4 (b).
But this is subject to rules 1 and 2 above.
We are unable to accept the contention raised on behalf of the respondent that the words "subject to" have not the effect of making what would otherwise follow from the application of rules 4(a) and 4(b) subject to "both the lim its" laid down in rule 2.
Giving as we must natural meaning to the words used in rules 2 and 4, we are of opinion that in no case can the basic pay be fixed at a higher figure than what the point to point adjustment would give to the workman or the maximum in the new scale.
" The dispute between the bank and the workmen in the present ,case was this.
The bank claimed that under cl.
(ii) of the Desai award, the adjusted basic pay in the new scale was not to exceed what point to point adjustment would give an employee on January 1, 1962.
The bank further claimed that this being the maximum permissible under cl.
(ii) and cl.
(iv) being subject to cl.
(ii) the method of fitment provided in cl.
(iv) could not give to an employee more than the maximum arrived at under cl.
Thus the bank 's case was that once the maximum arrived at by point to point adjustment as on January 1, 1962, was reached under cl.
(ii), no further increments even under sub cl.
(1) 903 (d) of cl.
(iv) could be allowed.
The, workmen on the other hand claimed that they were entitled to what was provided by sub cls.
(a), (b) and (c) of cl.
(iv) and the two increments under sub cl.
(d) and that it did not matter whether what was thus arrived at exceeded the maximum provided under cl.
The labour court has partially accepted the workmen 's contention and fixed the pay of the two workmen concerned accordingly.
The bank contests the correctness of this view.
We are of opinion that neither the stand taken by the bank nor the stand taken by the workmen is correct, and that the relevant clauses in para.
5.356 of the Desai award must be interpreted in the same manner as the relevant provisions in the Sastry award as modified were interpreted in Prakash Chand Mehra 's case(1).
In this connection it is brought to our notice that in para.
5.356 of the Desai award it was stated that the award was giving directions similar to those provided under the Sastry award as modified subject to certain changes which were considered necessary having regard to the lapse of time after coming into force of the provisions of the Sastry award as modified.
It is urged on behalf of the appellant that the Desai award made certain changes and therefore need not be interpreted in the same way as was done in Prakash Chand Mehra 's case(1).
We see no force in this submission.
It is true that the Desai award said that certain changes were being made; but these changes were considered necessary having regard to the lapse of time.
However, the main intention of the Desai award was also to give directions similar to those provided in the Sastry award as modified.
It is true that there are some verbal changes in the Desai award; but these verbal changes are only due to lapse of time and do not affect the substance of what was provided by the Sastry award as modified.
We do not agree with the case of the appellant bank that in cl.
(ii) the adjusted basic pay is to be as on January 1, 1962.
We are of opinion that the adjusted basic pay in cl.
(ii) has to be taken as on January 1, 1959.
This follows from the fact that the workman 's basic pay as on January 1, 1959 cannot be reduced and therefore when cl.
(ii) speaks of adjusted basic pay it must refer to the same date as in cl.
Further cl.
(iv) which provides for actual calculations starts with the words "subject to rules (i) to (iii)" and therefore the actual calculations made under cl.
(iv) must be subject to clauses (i) and (ii).
This means in (1) L8Sup.
CI/66 11 904 effect that the actual fixation.
under sub cls.
(a), (b) and (c) of cl.
(iv) will be subject to cl.
(i) and cl.
Under sub cl.
(a) of cl.
(iv) a workman will be placed in the Sastry award as modified by placing him at the stage in the Sastry award scale equal to or next above his basic pay as on January 1, 1959, in the scale then in force in the bank concerned.
But in view of cl.
(i) this cannot be less than the actual basic pay of the workman as on January 1, 1959.
Where under cl.
(i) the actual basic pay as on January 1, 1959, is more than what point to point adjustment will give under cl.
(ii), it cannot be reduced for cl.
(ii) is subject to cl.
After this has been done the workman would be entitled to increments as provided in sub cl.
(b) read with sub cl.
(c) of cl.
(iv), but this will be subject to cls.
(i) and (ii) and the adjusted basic pay arrived at by giving the increments under sub cls.
(b) and (c) cannot exceed the adjusted basic pay as arrived at by point to point adjustment in the Sastry award as modified or the maximum of that scale or the actual basic pay as on 1st January 1959, as the case may be.
Thus sub cl.
(a) is subject to cl.
(i) and the basic pay to be fixed on January 1, 1959, has to be fixed by reading sub cls.
(a) of cl.
(iv) and cl.
(i) together.
Then increments under sub cl.
(b) read with sub cl.
(c) of cl.
(iv) have to be added, but this is again subject to the provisions of cls.
(i) and (ii).
After this has been worked out, then comes sub cl.
(d) of cl.
(iv), and the main dispute in the present case is about this subclause.
The appellant bank 's contention is that two further annual increments allowed under sub cl.
(d) cannot be permitted in view of cl.
(ii) as interpreted by the appellant.
But as we, have held that in cl.
(ii) the adjusted basic pay has to be fixed as on January 1, 1959, sub cl.
(d) of cl.
(iv) will take effect and give two annual increments for 1960 and 1961 which are beyond the date which we have accepted as the right date for purposes of cl.
It is however urged on behalf of the appellant that sub cl.
(d) is also subject to cls.
(i) to (iii) and therefore these increments if they go beyond what cl.
(ii) provides cannot be given.
This argument has arisen because the Desai award did not separate sub cl.
(d) as was done by the Labour Appellate Tribunal in its modification of the Sastry award.
But as stated by the Labour Appellate Tribunal when dealing with the Sastry award, it was inherent in the Sastry award that increments for 1951 and 1952 should be provided after the basic pay was worked out as on January 31, 1950.
The same applies to the Desai award.
Once it is held and that we hold that basic pay under cl.
(ii) has to be worked out as on January 1, 1959, the two increments provided by sub cl.
(d) of cl.
(iv) which are beyond that date must 905 be given over and above what has been worked out under sub cls.
(a), (b) and (c) of el.
(iv) of the Desai award.
The fact that by oversight sub cl.
(d) of el.
(iv) was not made a separate clause would make no difference for sub cl.
(d) provides for a period after the date up to which el.
(ii) works.
Therefore, two increments under sub cl.
(d) have to be given after adjustments have been made under sub cls.
(a), (b) and (c) of el.
(iv) in accordance with what we have interpreted these sub clauses as well as cls.
(i) and (ii) to mean.
In effect the two increments provided in sub el.
(d) must always be given.
But it may happen that increments provided in sub cl.
(b) read with sub cl.
(c) may in some cases be not available where the actual pay as on January 1, 1959 which will not be reduced under el.
(i) happened to coincide with or was more than the adjusted basic pay under el.
This interpretation is in accord with what was decided by this Court in Prakash Chand Mehra 's case(1), and that decision in our opinion would govern the interpretation of para.
5.356 of the Desai award also, which as we have indicated, is in substance the same as para.
292 of the Sastry award as modified by the Labour Appellate decision.
We now turn to the actual fixation of pay in each case.
We shall first take the case of Ram Parkash (i.e. C.A. 1008).
I le joined service on April 11, 1949.
His basic pay as on January 1,1959 was Rs. 106.
His place of posting was Phagwara in area ITT.
Point to point adjustment as on January 1, 1959, would give him Rs. 106 in the Sastry award scale as modified.
This is equal to his actual salary as on January 1, 1959.
Therefore under sub cl.
(a) of el.
(iv) his salary has to be fixed as on January 1, 1959 at Rs. 106.
He would not be entitled to any increments under sub cls.
(b) and (c), because his actual salary coincided with the adjusted basic pay in the Sastry award scale as modified as on January 1, 1959.
He would however be entitled to two increments under sub cl.
(d) for the years 1960 and 1961 and his salary therefore as on January 1, 1962 under the Sastry award would come to Rs. 119.
As Rs. 119 is the eleventh stage in the Sastry scale, Ram Parkash would be entitled to the eleventh stage in the Desai scale, which would be Rs. 170.
The bank actually fixed him at Rs. 176 on its own interpretation of the award.
In the circumstances, Ram Parkash was not entitled to any relief from the labour court.
Tek Chand Sharma respondent in C.A. 1009 was appointed on November 15, 1950.
His salary as on January 1, 1959 was Rs. 100 and his place of posting was Nakodar in area IV of the (1) 906 Sastry award.
His salary according to point to point adjustment would come to Rs. 85.
But under cl.
(i) his salary cannot be fixed below Rs. 100, which he was actually getting.
Under subcl.
(a) of cl.
(iv) his salary will be fixed at Rs. 100.
He would not be entitled to any increments under sub cls.
(b) and (c) of cl.
(iv) because he was getting more than what would be his adjusted basic pay under cl.
Therefore, for purposes of sub cl.
(a) of cl.
(iv) he would be fixed at Rs. 100 as on January 1, 1959, and would be entitled to increments under sub cl.
(d) which will bring his salary to Rs. 112 as on January 1, 1962.
This is the thirteenth stage in the Sastry scale.
Nakodar is now in area III in the Desai award.
The thirteenth stage in the Desai award scale is Rs. 182 for that area.
So his salary as on January 1, 1962 would be fixed at Rs. 182.
In addition he is entitled to two increments on account of being a graduate and one increment on account of his having passed the Indian Institute of Bankers ' examination.
His actual salary in the Desai scale on January 1, 1962 will be Rs. 182 plus Rs. 33, i.e., Rs. 215.
The bank fitted him on Rs. 193.
The award of the labour court therefore in the case of Tek Chand Sharma is correct.
We therefore allow C.A. 1008 and set aside the order of the labour court and dismiss the application of Ram Parkash.
We make no order as to costs in the circumstances.
C.A. 1009 is hereby dismissed.
We make no order as to costs in the circumstances.
C.A. 1008 allowed.
C.A. 1009 dismissed.

dataset_name: IN-Abs

summary/full:
The respondent employees made applications under section 33C(2) of the Industrial Disputes Act for determination and computation of the benefit to which they were entitled under the National Industrial Tribunal (Bank Disputes) Award (Desai Award) as they were not satisfied with the fixation of their pay by the appellant bank under para 5.356 of the Desai Award.
The Bank claimed that under clause (ii) of para 5.356 of the Desai Award, the adjusted basic pay in,the new scale was not to exceed what point to point adjustment would give an employee on January 1, 1962 and that this being the maximum permissible under cl.
(ii), cl.
(iv) could not give an employee more than the maximum arrived at under cl. (ii).
The employees on the other hand claimed that they were entitled to what was provided by sub cls.
(a), (b) and (c) of cl.
(iv) and the two increments under sub cl.
(d) and that it did not matter whether what was thus arrived at exceeded the maximum provided under cl.
The Labour Court partially accepted the employees ' contention and fixed their pay accordingly.
In appeal.
HELD:The decision of this Court in Prakash Chand Mehra 's case would govern the interpretation of para 5.356 of the Desai Award also, which is in substance the same as para 292 of the Sastry Award as modified by the Labour Appellate decision.
The adjusted basic pay in cl.
(ii) has to be taken as on January 1, 1959.
This follows from the fact that the workman basic pay as on January 1, 1959 cannot be reduced and therefore when cl.
(ii) speaks of adjusted basic pay it must refer to the same date as in cl.
Further cl (iv) which provides for actual calculations starts with words "subject to rules (i) to (iii)" and therefore the actual calculations made under cl.
(iv) must be subject to cls.
(i) and (ii).
This means in effect that the actual fixation under sub cls.
(a), (b) and (c) of cl.
(iv) will be subject to cl.
(i) and cl.
Under sub cl.
(a) of cl.
(iv) a workman will be placed in the Sastry Award as modified by placing him at the stage in the Sastry Award scale equal to or next above his basic pay as on January 1, 1959 in the scale then in force in the bank concerned.
But in view of cl.
(i) this cannot be less than the actual basic pay of the workman as on January 1, 1959.
Where under cl.
(i) the actual basic pay as on January 1, 1959 is more than what point to point adjustment will give under cl.
(ii), it cannot be reduced for cl.
(ii) is subject to cl.
After this has been done the workman would be entitled to increments as provided in sub cl.
(b) read with sub cl.
(c) of cl.
(iv), but this will be subject to cl.
(i) and (ii) and the adjusted basic pay arrived at by giving the increments under sub cls.
(b) and (c) cannot exceed the adjusted basic pay as arrived at by point to point adjustment in the Sastry Award as modified or the maximum of that scale or the 899 actual basic pay as on 1st January 1959, as the case may be.
Thus sub cl.
(a) is subject to cl.
(i) and the basic pay to be fixed on January 1, 1959 hag to be fixed by reading sub cl.
(a) of cl.
(iv) and cl.
(i) together.
Then increments under sub cl.
(b) read with sub cl.
(c) of cl.
(iv) have to be added, but this is again subject to the provisions of cls.
(i) and (ii).
[903 E; 903 G 904 E] Once it is held that basic pay under cl.
(ii) has to be worked out as on January 1, 1959 the two increments provided by sub cl.
(d) of cl.
(iv) which are beyond that date must be given over and above what has been worked out under sub cls.
(a), (b) and (c) of cl.
(iv) of the Desai Award.
The fact that by oversight sub cl.
(d) of cl.
(iv) was not made a separate clause would make no difference for sub cl.
(d) provides for a period after the date up to which cl.
(i) works.
[904 H 905 B] State Bank of India Prakash Chand Mehra, [1961] 11 L.L.J. 383, relied on.


judgement:
Appeal No. 801 of 1963.
Appeal by special leave from the judgment and decree dated September 2, 1959 of the Madras High Court in Second Appeal No. 774 of 1957.
T. V. R. Tatachari, for the appellants.
P. Raghaviah and R. Ganapathy Iyer, for the respondents.
The Judgment of the Court was delivered by Gajendragadkar, C.J.
The present appeal has been brought to this Court by special leave and it arises from a suit filed by the appellants against four respondents.
The properties involved in the suit consist of agricultural lands situated in Eragudi village, Musiri taluk, Tiruchirappalli district.
According to the appellants, the said lands had been granted in Inam to the ancestor of one Ambalathadum Pachai Kandai Udayavar by the Carnatic Rulers before the advent of the British power in India.
The original grantdeeds are not available; but at the time of the settlement of the Inams in the sixties of the last century, Inam title deeds were issued in favour of the family of Pachai Kandai Udayavar.
The appellants averred that the properties covered by the grant bad been granted in Inam to the original grantee burdened with the obligation of performing certain services in a Matam.
The said properties were alienated from time to time, and as a result of the last alienation, the appellants became entitled to them.
The appellants in the present litigation claimed a declaration about their title to the properties in suit and a permanent injunction restraining respondents 1 to 3, who claimed to be the trustees of an alleged Pachai Kandai Udayavar Temple at Eragudi, from interfering with their possession of the same.
Respondent No. 4 is the Deputy Commissioner, Hindu Religious and Charitable Endowments, L9Sup.
CI/66 9 122 Tiruchirappalli, and he has been impleaded because he has purported to appoint respondents 1 to 3 as trustees of the said alleged Temple on the 7th March, 1951.
This suit (No. 103 of 1954) was instituted on the 13th September, 1954, under section 87 of the, Madras Hindu Religious and Charitable Endowments Act (No. XIX of 1951) (hereinafter called 'the Act '), in the Court of the District Munsif at Turaiyur.
Respondents 1 to 3 who have been appointed as trustees of the said temple by respondent No. 4, obtained a certificate from him that the properties in question belonged to the Temple; and on the basis of the said certificate, they had filed an application before the Magistrate having jurisdiction in the area under section 87 of the Act for possession.
Notice of this application was served on the appellants and they pleaded their own title to the properties.
The Magistrate, however, over ruled the claim made by the appellants and directed them to deliver possession of the properties to respondents 1 to 3.
Before this order could be executed and possession delivered to respondents 1 to 3, the appellants instituted the present suit.
Respondents 1 to 3 resisted this suit and contended that the properties in suit had not been granted to the predecessor of Pachai Kandai Udayavar as alleged by the appellants.
Their case was that the said properties had been granted to the Pachai Kandai Udayavar Temple and formed part of its properties.
As trustees appointed by respondent No. 4, they claimed that they were entitled to the possession of the properties.
On these pleadings, four substantive issues were framed by the learned trial Judge; they were : whether the grant of the Inam was a personal Inam; whether the grant of the Inam was a religious endowment; whether plaintiffs have title to the suit properties; and whether plaintiffs have acquired title by prescription ? On the first two issues, oral and documentary evidence was adduced by the parties.
The learned trial Judge examined the whole evidence and came to the conclusion that the grant of the Inam was a personal Inam, and that it was not a grant in favour of the religious endowment within the meaning of the Act.
That is how the first two issues were answered in favour of the appellants.
In consequence, the learned trial Judge also held that the appellants had proved their title to the suit properties.
The alternative plea made by the appellants that they had acquired title to the properties by prescription, was also upheld by the trial Judge.
In the result, the appellants ' suit was decreed on the 14th February, 1955.
123 Respondents 1 to 3 preferred an appeal (No. 129 of 1955) in the Court of the Subordinate Judge at Tiruchirappalli, challenging the correctness of the said decree.
The lower appellate Court considered three main points; they were : whether the grant was in favour of Ambalathadum Pachai Kandai Udayavar; whether there is a temple; and whether the plaintiffs had prescribed their title to the suit properties by adverse possession.
The lower appellate Court made a finding against respondents 1 to 3 on point No. 2.
It held that the evidence adduced by the respondents did not prove the existence of any temple in favour of which the original grant had been alleged to have been made according to them.
On that view, it thought it unnecessary to consider the first point.
In regard to the third point based on the appellants ' claim that they had acquired title by adverse possession, the lower appellate Court found that "it was evident that from the very beginning, Pachai Kandai Udayavar and his family had been claiming beneficial interest in the property and they were not holding the same as managers of the trust.
The alienations must, therefore, be regarded only as repudiation of the trust.
" In the result, the lower appellate Court 's finding was that the appellants had established their claim of prescriptive title.
The appeal preferred by respondents 1 to 3, therefore, failed and was dismissed with costs on March 29, 1957.
This decision was challenged by respondents 2 & 3 before the Madras High Court in Second Appeal (No. 774 of 1957).
Subrahmanyam, J., who heard this appeal, held that the original grant had been made in favour of the Temple.
There was evidence to show that the properties originally granted had been resumed by the Collector; but the learned Judge took the view that the said resumption was only of the melwaram or assessment, and that since the lands had been granted in Inam to the deity and its matam, their title to the lands remained unaffected by the resumption proceedings.
In other words, he negatived the appellants ' claim that the original grant was in favour of their predecessors intitle, though burdened with an obligation to render service to the matam.
The learned Judge reversed the finding of the lower appellate Court that the existence of the Temple had not been proved.
Having thus held that the properties belonged to the Temple, the learned Judge proceeded to consider the question of limitation by reference to the several alienations with which the present litigation is concerned.
In dealing with the question of limitation, the learned Judge took the view that the present suit would be governed 124 by Article 134 B of the Indian Limitation Act.
This article has been introduced in the said Act by Amending Act 1 of 1929 and came into force on 1 1 1929.
It was conceded before the lower appellate Court that the new article was not retrospective in operation and that if the title of the alienees in regard to 'dharmadlayam properties had been acquired by adverse possession prior to 1 1 1929, it would not be affected by the provisions of article 134 B. Thus considered, the alienations in regard to items 1, 2, part of item 3, items 7 & 8, and a portion of the well in item 5 sold under Ext.
A 2 in 1914 were held to be outside the mischief of article 134B.
The possession of the vendees in regard to the properties covered by the said sale deed was held to have conferred title on them.
Similarly, item 4 and a part of item 6 which had been sold in auction in execution of a decree in 1927 (vide Exts.
A 7 and A 8), were also held to be outside the scope of article 134 B, because the said article does not cover auction sales.
That left the alienations covered by Exts.
A 3, A 6 and A 12 to be considered.
These three alienations were effected on the 7th October, 1917, 2nd July, 1926, and 2nd July, 1926 respectively.
The High Court held that the properties covered by these sale deeds fell within the purview of article 134 B, and the appellants ' title in respect thereof was open to challenge.
In the result, the appellants ' claim in regard to the properties covered by these three sale deeds was rejected, whereas their claim in regard to the other ,prop erties.
was upheld.
In consequence the appeal preferred by respondents 2 & 3 was partly allowed and the decree passed by the lower appellate court in regard to Exts.
A 3, A 6 and A 12 was set aside.
This judgment was pronounced on the 2nd September, 1959.
It is against this decision that the appellants have come to this Court by special leave.
Mr. Tatachari for the appellants has raised before us an interesting question of law.
He contends that article 134 B would not apply to the present case, because the alienations evidenced by Exts.
A 3, A 6 and A 12 show that the alienors purported to transfer the properties not as Poojaris or managers of a temple, but in their individual character as owners of the said properties.
The documents recite that the properties belonged to the alienors as their separate secular properties, though burdened with an obligation to render service to the Matam; and that shows that the transfer was effected not by the Poojaris of the temple, but by persons who claimed that the properties belonged to them.
Such a case falls outside the purview of article 134 B and must be governed by article 144 of the First Schedule to the Limitation Act.
125 Mr. Tatachari also argues that in applying article 144, we must assume that the possession of the alienees was adverse to the temple from the respective dates of the alienations when they were put in possession of the properties covered by the transactions in question.
In support of this argument, Mr. Tatachari has relied on the statement of the law made by Mr. Justice Mukherjea in his lectures on.
the Hindu Law of Religious and Charitable Trust.(1) Says Mr. Justice Mukherjea, "if the transfer (of debutter property) is not of ' particular items of property, but of the entire endowment with all its properties, the possession of the transferee is unlawful from the very beginning.
The decisions in Gnanasambanda Pandara Sannadhi vs Velu Pandanam & Another(2) and Damodar Das vs A dhikari Lakham Das(3) are illustrations of this type of cases.
" He also added that transfer would similarly be void 'and limitation would run from the date of the transfer, if the manager transfers the property as his own prop" and not as the property of the deity.
The same statement has been made by the learned author in two other places in the course of his lectures.
The argument is that in cases falling under article 134 B, the transfer made by the manager of a Hindu endowment is challenged by his successor on the ground that it was beyond the authority of the manager; and such a challenge necessarily postulates that the transfer was effected by the manager as manager purporting to deal with the property as belonging to the religious endowment.
Where, however, the transfer is made by the manager not as manager, but as an individual, and he deals with the property not on the basis that it belongs to the religious endowment, but on the basis that it belongs to himself, considerations which would govern the application of limitation are substantially different; and in such a case, the transfer being void ab initio, the possession of the transferee is adverse from the date of the transfer.
That is how Mr. Tatachari has attempted to avoid the application of article 134 B in the present case.
There can be no doubt that if the assumption made by Mr. Tatachari is well founded, the appellants title to the three transactions in question would have to be upheld.
It is well known that the law of limitation in regard to suits instituted to set aside unauthorised alienation of endowed property by a Shebait or a Mahant or a manager of a Hindu religious endowment was very uncertain prior to the decision of the Privy Council (1) Mr. Justice B. K. Mukherjea on 'Hindu Law of Religious and Charitable Trust ' II Edn.
(1962) p. 282.
(2) L.R. 27 I.A. 69.
(3) L.R. 37 I.A. 147.
126 in Vidya Varuthi Thirtha vs Balusami Ayyar & Others.(1) That is why subsequent to the said decision, any discussion about the question of limitation relating to such suits necessarily begins with a reference to the principles laid down by the Privy Council in Vidya Varuthi 's case.
In that case, the Privy Council held that the endowments of a Hindu math are not "conveyed in trust", nor is the head of the math a "trustee" with regard to them, save as to specific property proved to have been vested in him for a specific object.
The question which the Privy Council had to consider in that case was whether article 134 applied to a suit in which the validity of a permanent lease of part of the math property granted by the head of a math was challenged.
Article 134 covers suits brought with a view to recover possession of immovable property conveyed or bequeathed in trust or mortgaged and afterwards transferred by the trustee or mortgagee for a valuable consideration.
These words used in column 1 of article 134 necessarily raise the question as to whether the head of a math is a trustee within their meaning; and Mr. Justice Ameer Ali, who spoke for the Privy Council, answered that question in the negative.
In con sequence, the argument that article 134 applied, was repelled, and it was held that article 144 would govern such a case.
In fact, it is substantially because of this decision that Articles 134 A, 134 B and 134 C and Articles 48A and 48B came to be inserted in the First Schedule to the Limitation Act by Amending Act 1 of 1929.
At the same time, section 10 of the Limitation Act was amended by addition of an explanatory clause which provided, inter alia, that for the purposes of section 10, any property comprised in a Hindu religious or charitable endowment shall be deemed to be property vested in trust for a specific purpose, and the manager of any such property shall be deemed to be the trustee thereof.
As we have already noticed, these newly added provisions in the Limitation Act came into force on the 1st January, 1929.
Reverting then to the question as to whether a transfer effected by the manager of a temple in regard to properties belonging to the temple falls outside the purview of article 134 B if it is shown to have been made on the basis that the transferor treated the properties as his own, it does appear that the two earlier Privy Council decisions in Gnanasambanda 's(2) and Damodar Das 's(3) cases lend some support to the contention.
In Gnanasambanda 's case, it was held by the Privy Council that where hereditary trustees of a re ligious endowment sold their hereditary right of management (1) L.R. 48 I.A. 3 2.
(2) L.R. 27 I.A. 69.
(3) L.R. 37 I.A. 147.
127 and transferred the endowed property, the sales were null and void, in the absence of a custom allowing them; and that the possession taken by the purchaser was adverse to the vendors and those claiming under them.
In appreciating the effect of this decision, it is necessary to bear in mind that the plea of limitation with which the Privy Council was concerned in that case was based on article 124 of the Limitation Act.
Article 124 relates to suits filed for possession of a hereditary office, and the limitation prescribed for such suits starts when the defendant takes possession of the office adversely to the plaintiff.
It is clear that in that case, what had been sold was the hereditary office, as well as the properties belonging to the endowment; and so, it was plain that limitation began as soon as the purchaser took possession of the office under article 124.
It is true that immovable properties belonging to the temple had also been sold; but the Privy Council expressly ruled that there was no distinction between the office and the property of the endowment.
The one is attached to the other; but if there is, article 144 of the same Schedule is applicable to the property; and that bars the suit after 12 years ' adverse possession.
It may be permissible to state that this latter observation was made in 1899 long before the Privy Council enunciated the true legal position in regard to the status of the managers of Hindu religious endowments in Vidya Varuthi 's case(1).
Similarly in Damodar Das 's case(2), while dealing with the validity of an 'ikrarnama ' of a debuttar property executed by the manager of the property, the Privy Council observed that from the date of the ikranama, the possession of the transferee was adverse to the right of the idol and that led to the conclusion that the suit instituted against the transferee was barred by limitation.
There is no discussion about the status and character of the Chela who made the transfer nor about the right of the succeeding Chela to challenge the validity of the transfer effected by his predecessor which was subsequently recognised by the Privy Council in Vidya Varuthi 's case(1).
These two judgments have, no doubt been incidentally referred to by the Privy Council in Mahant Ram Charan Das vs Naurangi Lal and Others(3), and in Mahadeo Prasad Singh and Others vs Karia Bharti(4) though the decision in the said two cases proceeded in the light of the legal position enunciated by the Privy Council in Vidya Varuthi 's case(4).
(1) L.R. 48 I.A. 302.
(2) L.R. 37 I.A. 147.
(3) L.R. 60 I.A. 124.
(4) L.R. 62 I.A. 47.
128 It would thus be seen that the observations made by Mr. Justice Mukhejea on which Mr. Tatachari relies, really purport to extend the principle which has apparently been mentioned by the Privy Council in Gnanasambanda 's case(1).
It does appear that Mr. Justice Mukhejea had expressed this view as a Judge of the Calcutta High Court in the case of Hemanta Kumari Basu vs Sree Ishwar Sridhar Jiu, (2) and had relied on the two Privy Council 's decisions in Gnanasambanda 's(1) and Damodar Das 's cases In the case of Hemanta Kumari Basa(2), the attention of Mukherjea J. was drawn to the fact that in an earlier decision of the Calcutta High Court in Ronald Duncan Cromartic and Francis Arthur Shephard Sutherland, vs Sri Iswar Radha Damodar few and Others, (4) D. N. Mitter, J., had made observations which were inconsistent with the view which Mukhejea, J. was disposed to take; but the learned Judge commented on the said observations by saying that they were open to criticism.
Thus, on the question raised by Mr. Tatachari before us, there does appear to be some divergence of opinion in the Calcutta High Court itself No other decision has been cited before us which has accepted the proposition that if any part of the property belonging to a Hindu religious endowment is transferred by its manager, the transfer is void and the possession of the transferee becomes adverse to the endowment from the very beginning.
In fact, as we have already indicated, in the case of Gnanasambanda(1) what had been transferred unauthorisedly, was the religious office itself and all the properties appertaining thereto.
It is open to doubt whether the said decision could lead to the inference that if a part of the property is transferred by the manager of a religious endowment on the basis that it belongs to him and not to the religious endowment, the transfer is void ab initio, with the result that the possession of the transferee is adverse to the religious endowment from the very beginning, and the succeeding manager 's right to challenge the said transfer would be lost if his predecessor who made the transfer lives for more than 12 years after effecting the transfer.
In the words of Sir John Edge, who spoke for the Privy Council in Nainapillai Marakayar and of hers vs Ramanathan Chettiar and Others(5), " in the case of a Shebait a grant by him (1) L.R. 27 I.A. 69.
(2) I.L.R. (3) L.R. 37 I.A. 147.
(4) (5) L.R. 51 I.A. 83 at p. 97.
129 in violation of his duty of an interest in endowed lands which he has no authority as Shebait to make may possibly under some circumstances be good as against himself by way of estoppel, but is not binding upon his successors.
" It is not easy to see why the successor 's right to Challenge an unauthorised alienation made by his predecessor should be affected adversely if the alienation is made by his predecessor on the basis that the property belonged to him and not to the religious endowment.
However, we do not think it necessary to decide this point in the present case, because, in our opinion, the plain words of article 134 B do not permit such a plea to be raised.
Column 1 of article 134 B provides for suits brought, inter alia, by the manager of a Hindu religious or charitable endowment to recover possession of immovable property comprised in the endowment which has been transferred by a previous manager for a valuable consideration.
The period prescribed for such suits is 12 years, and the time from which the period begins to run is the death, resignation or removal of the transferor.
Confining ourselves to the first column of article 134 B at this stage, the question which we have to decide is : does this article permit any distinction to be made between transfers effected by a previous manager on the basis that the property transferred belongs to the religious endowment, and those made by him on the basis that the said property is his own private property ? If the property is transferred by the manager on the basis that it belongs to the endowment, article 134 B clearly applies; but does it make any difference to the application of article 134 B if the transfer is made on the other basis that the property belongs not to the endowment, but to the manager himself ? In either case, the successor who challenges the alienation, will have to prove that the property in fact belongs to the religious endowment.
Once that is proved, is it necessary for him also to show that the transfer was made, on the basis that the property belonged to the religious endowment ? In our opinion, such a limitation cannot be read in the words used by the said article.
Article 134 B applies to all cases where it is shown that the immovable property was comprised in the endowment and that it has been transferred by a previous manager for a valuable consideration.
The successor has to prove three facts : (1) that the property belongs to the religious endowment; (2) that it was transferred by a previous manager; and (3) that the transfer was for a valuable consideration.
The character of the representations made by the previous manager in regard to his relation with the property which is the subject matter of transfer, is irrelevant for the purpose of article 134 B. 130 All transfers made would fall within article 134 B if the three essential facts are proved by the successor of the transferor manager of the Hindu religious endowment.
Therefore, we do not think that Mr. Tatachari is justified in contending that the transfers with which we are concerned in the present appeal fall outside the purview of article 134 B inasmuch as they are effected by the alienors, on the representations that the properties transferred belonged to them as their separate properties.
On the findings recorded by the High Court, it is clear that the properties belonged to the temple; that they have been transferred by persons who must be deemed to be the previous managers of the temple; and that they have been transferred for valuable consideration.
The present suit has been brought against respondents 1 to 3 who are appointed trustees of the temple by respondent No. 4; and so, all the ingredients prescribed by the first column of article 134 B are satisfied.
That is why we must reject the ingenious argument urged before us by Mr. Tatachari that article 134 B does not apply to the present case.
We may, in this connection, refer to the decision of the Privy Council in Mahant Sudarsan Das vs Mahant Ram Kirpal Das, and Others.
(1) In that case, the question which arose for the decision of the Privy Council was whether article 134 B applied to a case where debuttar property had been sold in an execution sale, and the Privy Council held that it did not. "To apply article 134 B to an execution sale", observed Lord Radcliffe, "involves a reading of that article which would construe the words "transferred by a previous manager for a valuable consideration" as covering an execution sale under court process, and the word "transferor" as extending to the judgment debtor whose land is sold.
It is not only that the words themselves do not properly bear that meaning.
Apart from that, what is in all essentials the same question was considered on several occasions by courts in India before article 134A and 134B had been added to article 134.
That Article contains the analogous phrase "transferred by the trustee or mortgagee for a valuable consideration", and there was a uniform current of decision to the effect that these words were incapable of applying to an execution sale.
" What was said by the Privy Council about the impropriety of including an execution sale within the meaning of article 134B can, with equal justification, be said about introducing words of limitation in the said article which alone can exclude transfers made by the previous manager of the Hindu religious endowment on the basis that the property transferred belonged to (1) L.R. 77 I.A. 42 at pp.
49 50.
131 him.
Therefore, we must deal with the present appeal on the basis that article 134 B applies to the facts of the present case.
Mr. Tatachari then contends that even on the application of article 134 B, the decision of the High Court is erroneous, because on the facts proved in this case, the High Court should have drawn the legal inference that the transferor had been removed more than 12 years before the suit was filed.
He contends that the question as to whether on facts proved in the present case, an inference can be drawn that the previous manager or trustee had been removed, is a mixed question of fact and law, and the High Court was in error in reversing the decisions of the courts below by holding that the title of the temple had not been lost by adverse possession before the suit was filed.
For deciding this question, it is necessary to refer to some material facts.
The transferor is Pachaikandaswamiar.
The appellants ' case before the trial Court was that Pachaikandaswamiar had resigned his position about 27 years ago, and that even if article 134 B applied, limitation should be held to have commenced from the date when the alienor either resigned his office or was removed from it.
In dealing with this aspect of the matter, the learned trial Judge has examined the oral evidence led on behalf of the parties.
He assumed that Pachaikandaswamiar and his son were alive at the date of the suit.
Even so, he found that they had left the village and had taken no part whatever in the management of the worship of the temple.
In fact, almost all the properties belonging to the temple had in course of time, been a alienated and the alienors were no longer interested either in the temple or in staying in the village itself.
Raju lyer, who was examined as a witness by the appellants, stated that he and Amirthalinga lyer had been performing the worship of the temple for the past 27 years, and he added that the alienor and his son had left the village more than 25 years ago, and but for very casual visits to the village, they had never taken any interest in the temple or in the management of its affairs.
In fact, Ranga Raju Raddiar, whom the respondents examined, admitted in reply to the questions put by the Court that since 25 years or so neither Pachaikandaswamiar nor Chinnaswami lyer had performed any pooja in the temple.
He substantially corroborated the statement of Raju lyer that Raju lyer and Amirthalinga lyer` had been performing the worship of the temple.
Another witness, Chandrasekara lyer by name, whom the respondents examined, also admitted that Pachaikanda had sold away all his properties and had left the village.
Besides, when respondents 1 to 3 were appointed as trustees of the temple, a notice was issued by the 132 office of Assistant Commissioner for Hindu Religious Endowments, Tiruchirappalli, on the 19th June, 1948, in which it was specifically averred that there were no legally constituted trustees for Sri Pachaikantha Udayavar Temple, Eragudi, and it was mismanaged; and so, it was proposed to appoint legally constituted trustees for the said temple.
This notice was served on witness Raju lyer and Amrithalinga lyer, Chinnasamy Iyer, and Rangaraja Reddiar, who were performing the worship and acting as de facto managers of the temple.
It is remarkable that this notice describes Amirthalinga Iyer and Chinnasamy lyer as de facto trustees of the temple.
It is on these facts that the learned trial Judge held that the alienor must be deemed to have resigned his office or left it.
The lower appellate Court does not appear to have considered or made any specific or clear finding on this aspect of the matter.
It, however, held that the transferor and his family had been claiming beneficial interest in the properties all along and that they were not holding the same as managers of the trust.
That is why he confirmed the finding of the trial Judge on the question of adverse possession, though on a somewhat different ground.
The High Court has relied on the fact that the alienor is still alive, and so, it thought that the plea of adverse possession could not be sustained.
Unfortunately, the question as to whether the facts proved in this case did not show that the alienor had been removed from office by other persons who were in management of the temple de facto, has not been discussed by the High Court.
In our opinion, all the facts which have been brought on the record in relation to this aspect of the matter, clearly show not only that the alienor disposed of all the property and left the village ' but also that for the last 25 years or so, the management has been taken over by other persons who are acting as de facto managers of the temple.
This evidence appears to us to show that the alienors had been removed from management of the temple, and other persons have taken up the position as de facto managers, and this position has lasted for more than 25 years.
If that be so, there is no escape from the conclusion that more than 12 years have elapsed since the date of the removal of the previous manager who transferred the properties in question; and so, if a suit were brought by respondents 1 to 3 on the date when they were appointed trustees by respondent No. 4, it would be barred under article 134 B.
On that view of the matter, we must hold that the trial Judge and 133 the lower appellate Court were right in decreeing the appellants ' suit in its entirety.
We must accordingly set aside the decree passed by the High Court in regard to the transfers covered by Exts.
A 3, A 6 and A 12, and restore that of the lower appellate Court.
In the circumstances of this case, we direct that parties should bear their own costs.
Appeal allowed.

summary/full:
The lands in dispute had been granted in inam to a temple.
By about 1929 the then manager of the temple disposed of all those properties under various sale deeds, resigned his position and left the village.
He was therefore removed from the management of the temple and other persons had taken up the position as de facto managers from 1929.
As a result of successive alienations of the properties, the appellants became entitled to them.
In 1951, the respondents were appointed trustees of The temple and under the Madras Hindu Religious and Charitable Endowments Act, 1951, they applied, to the Magistrate, for possession of the properties and the Magistrate ordered delivery of possession.
Before the order could be executed the appellants filed the suit in 1954, for a declaration of their title to the properties and for an injunction restraining the respondents from interfering with their possession.
The trial Court and the lower appellate Court decreed the suit.
In second appeal, the High Court held that the suit was governed by article 134 B of the Limitation Act,, 1908, which was introduced into the Act on 1st January 1929; and that the appellants ' claim in regard to the properties covered by the sale deeds of 1917 and 1926.
should be rejected, because, the alienees had not acquired title by adverse possession by 1st January, 1929, and is the alienor was still alive, the plea of adverse possession could not be sustained under that article.
In appeal to this Court it was contended that article 134 B would not apply to the present case but that article 144 would apply, because, the transfers were effected by the alienor on the 'representations that the properties belonged to him as his separate property; and that even if the article applied, the decision of the High Court was erroneous, because the transferor had been removed from management more than 12 years before the suit was filed.
HELD : Though article 134 B applied to the facts of the case, since the appellants had acquired title to the properties by prescription, the decree passed by the High Court, in so far as it was against the appellants, should be set aside.
Column 1 of the article provides for suits brought,, inter alia, by the Tanager of a Hindu religion; or charitable endowment to recover possession of immovable property comprised in the endowment, which has been transferred by a previous manager for valuable consideration.
The period Prescribed for such suits is 12 years, and the time from which the period begins to run is the death, resignation or removal of the transferor.
The findings recorded by the High Court in the present case show that all the ingredients prescribed by the first column of the Article namely 121 (i)that the property belonged to the endowment, (ii) that it was transferred by a previous manager; and (iii) that the transfer was for valuable Consideration, were satisfied.
The character of the representations made by the previous manager in regard to his relation with the property which is the subject matter of transfer, is irrelevant for the purpose of the Article.
But if a suit had been brought by the respondents on the date when they were appointed trustees, it would have been barred under the Article, because more than 12 years had elapsed since the date of the removal of the previous manager who had transferred the properties; and therefore, the trial Court and the lower appellate Court were right in decreeing the, appellants ' suit in its entirety.
[129 C D, H; 132 H] Mahant Sudarsan Das vs Mahant Ram Kirpal Das & Ors.
L. R. 77 I.A. 42, applied.