judgement:
Appeal No. 1951 of 1975.
Appeal by Special Leave from the Award of the Industrial Tribunal, Gujarat in Reference (II) No. 30 of 1974, pub lished in the Gujarat Govt.
Gazette dated 23 10 1975 and Civil Appeal No. 631 of 1976 Appeal by Special leave from the Award of the Industrial Tribunal, Gujarat in Ref.
(II) No. 158 of 1974 published in the Gujarat Govt.
Gazette Part I L dated 15 4 76.
V.B. Patel, 1.
N. Shroff and H.S. Parihar for the appel lants (In CA 1951/75).
S.T. Desai, A. P. Hathi, Mrs. section Bhandare, M. section Narasimhan K.C. Sharma, A. K. Sharma and A. K. Mathur for the appellants in C.A. 631/76.
V.M. Tarkunde, K.L. Hathi and P.C. Kapur for the Re spondent in C.A. 1951/75 and Res.
1(1) C.A. 631/76.
S.S. Khanduja, S.K. Jain and Mrs. Laxmi Arvid for Re spondent Nos.
1(2) In C.A. 631/76.
The Judgment of the Court was delivered by SHINGHAL, J.
These two are companion appeals by special leave.
They have been heard together at the in stance.
of the learned counsel for the parties, and will be disposed by a common judgment.
Appeal No. 1951 of 1975 is directed against the award of the Industrial Tribunal Gujarat, dated September 24, 1975, in the dispute between the Alembic Glass Industries Ltd., Baroda, and its workmen, while appeal No. 631 of 1976 arises out of the Tribunal 's award in the dispute between Jyoti Limited, Baroda, and its workmen.
Speaking broadly, the dispute in both cases related to the workmen 's demand for 10 days sick leave, with retrospective effect, and ,its accumulation over a period of three years i.e. upto 30 days.
The workmen particularly felt aggrieved because by virtue of the first proviso to section 49 of the , hereinafter referred to as the Act, they were not entitled to the sickness benefit for the first two days of sickness except in the case of a, spell of sickness following, at an interval of not more than 15 days, the spell of sickness for which sickness benefit was last paid.
It was also a grievance that the benefit under the scheme of the Act was much less than the normal earnings of an employee and was not beneficial to the workmen.
The demand was resisted by the Companies in both cases.
In the case of the Alembic Glass Industries Ltd., it was contended that the Act provided more than adequate sickness benefits, and any additional 82 benefit would place unproductive financial burden on the industry and would have an all round adverse effect on other industries.
It was also urged that section 99 of the Act gave wide powers to the Employees ' State Insurance Corpora tion to enhance the benefit and it was therefore the proper authority to examine the demand.
The Company also contended that there was no practice of giving any such sick leave in the industries in Baroda or in the State of Gujarat.
In the case of Jyoti Ltd. an objection was taken that the reference was incompetent and the Tribunal had no jurisdiction to entertain it.
It was also pointed out that the benefit of sick.leave of 7 days per year was initially given to the workmen under an award dated August 29, 1958 which contained a specific direction that it would be automatically discon tinued when the benefits of the Employees ' State Insurance scheme would become available to the workmen, and also that the reasonableness of the demand could not be examined by the Tribunal.
An objection was also taken that the workmen had benefited a lot under the entire scheme of the Act and it would not be reasonable and proper to confer any addi tional benefit as the demands would place a heavy financial burden on the Company which it Could not bear.
The demand, according to the Company, would create an absurd position inasmuch as a worker would receive more wages by remaining absent than on duty.
The Company also pleaded that the demand for sickness leave could not be granted retrospec tively or allowed to accumulate.
While the reference in the case of Jyoti Ltd., Baroda, was still pending, the Tribunal gave its award dated Septem ber 24, 1975 in the case of the Alembic Glass Industries Ltd. The Tribunal, inter alia, awarded 7 days sick leave with full pay and dearness allowance to the workmen of that Company in a year, with the facility of accumulation upto 21 days.
It was stated before the Tribunal, on behalf of the workmen of Jyoti Ltd., that the arguments advanced and the contentions made in the case of the Alembic Glass industries may be considered as those made in their case also.
The reference in the case of Jyoti Ltd. proceeded accordingly and resulted in the award dated March 9, 1976 to which reference has been made above.
The award was on the lines of the earlier award in the case of the Alembic Glass Indus tries case, except .that the direction regarding 7 days sick leave was given retrospective effect from January 1, 1975.
The Company applied for and obtained special leave to appeal as aforesaid, with the further direction that the appeal may be heard along with the identical matter (in the Alembic Glass Industries case).
This is why these two have become companion appeals and are being disposed of together.
The controversy in these cases is whether the benefits admissible under the Act in the matter of the grant of sick leave are such as to justify the rejection of the workmen 's demand and the setting aside of the Tribunal 's awards in that respect.
It has been argued by the learned counsel for the appel lants that as the benefits of sections 47 and 49 of the Act are already admissible to workmen in Baroda with effect from December 14, 1969, and they are quite adequate, the Tribunal committed an error 83 of law in granting the additional benefits mentioned above.
Reference in this connection has been made to section 61 of the Act which provides that when a person is entitled to any of the benefits provided by the Act, he shall not be enti tled to receive any similar benefit admissible under the provisions of any other enactment.
The argument was raised in the Tribunal, but was rejected.
A similar question arose for consideration in The Hindustan Times Ltd., New Delhi vs Their Workmen(1) and was answered as follows by this Court, "Mr. Pathak has tried to convince us that in view of the provisions of the , no provision need be made about sickness leave at all.
That this Act has been applied, to the Company and that the workmen of the Company get the benefit of this Act is not disputed.
It is difficult to see however how the benefit that the workmen will get under this Act can affect the question of sickness leave being provided for the workmen.
This Act it has to be noticed does not provide for any leave to the workmen on the ground of sickness.
It provides in section 46(1)(a) for periodical treatment of any insured person in case of his sickness if certified by a duly appointed medical practitioner.
It is unnec essary to mention here the several provisions in the Act; viz., Sections 47, 48 and 49 which deal 'with the eligibility of workmen for sickness .benefit and the extent of the benefit that may be granted.
Section 56 of the Act pro vides for medical benefits to the insured workmen or in certain cases to the members of his family.
It appears to us clear however that in providing for periodical payments to an insured worker in case of sickness (sickness benefit) or for medical treatment or attendance to him or the members of his family, the legislature did not intend to substitute any of these benefits for the workmen 's right to get leave on full pay on the ground of sickness.
" The matter came up again for consideration by this Court in Technological Institute of Textiles vs Its Workmen and others(2) and it was held as follows with specific reference to the first proviso to section 49 of the Act according to which a person qualified to claim sickness benefit is not enti tled to it for the initial waiting period of two days except in the case of continuous illness of the nature mentioned therein, "With regard to sick leave, the argument on behalf of the appellant was that benefits were granted by the , but .that is not a bar to the demand of the workmen for sick leave.
The reason is that the first proviso to section 49 of the Employees ' State (1) [1964] 1 S.C.R. 234.
(2) [1965] 2 L L.3,149.
84 Insurance Act states that a person qualified to claim sickness benefit shall not be entitled to the benefit for an initial waiting period of two days except in the case of a spell of sickness following at an interval of not more than fifteen days, the spell of sickness for which benefit was last paid.
It is apparent that the Employees ' State Insurance Scheme does not cover all contingencies of sickness and in any event the first two waiting days are not covered.
In our opinion, the tribunal was, there fore, justified in its view that the workmen are entitled to 7 days ' sick leave with wages on pro duction of a medical certificate.
" It would thus appear that the Scheme of the benefits admissible under the Act cannot be said to cover the work men 's demand for sick leave to the extent allowed by the Tribunal.
Section 61 of the Act cannot thus be said to be applicable for the simple reason that the benefits granted by the Tribunal are not similar to those admissible under the Act.
The Act does not in fact deal with the question of sickness leave.
The other question regarding the adequacy of the sick ness benefit under the provisions of the Act has been exam ined by the Tribunal with reference to the reports of the National Commission of Labour, 1969, the Labour Laws Review Committee and the Norms Committee of Gujarat State, which go to show that the benefit cannot b.e said to be adequate for, it works out to about half the average wage of a workman, and even that amount is not admissible for the first two days of sickness except in the case of a spell of sickness following, at an interval of not more than 15 days, the spell of sickness for which the sickness benefit was last paid.
It has to be appreciated that a workman is prevented from earning the normal daily wages during the period of his illness and there is no justification for the argument that the rate of benefit at about half his wage, under the Act, should be considered sufficient so as to deny him the bene fit of sick leave on full emoluments for a period of 7 days when he is certified by a competent medical officer to be ill for that or a longer period.
Sickness is a serious misfortune to a workman for it not only prevents him from earning his normal wages, but is a drain on his meagre financial resources by way of additional expenditure on food, nursing and visits to the medical centre etc.
It has not been disputed before us that the "region cure industry" basis is suitable in cases like the present for examining any controversy regarding the work man 's demand for additional benefits, but it has been argued by the learned counsel for the appellants that the award of the benefit of sick leave to the workers of the two Compa nies could not be justified on that basis.
We find that the Tribunal has examined this aspect of the controversy also, and we have no reason to disagree with the view which it has taken.
As has been stated, the Act came into force in the region concerned on December 14, 1969, and it has not been disputed before us that till then it was the practice in the glass industries to grant sick leave with wages for periods varying from 6 to 10 days.
In fact in the 85 case of the Alembic Glass Industries Ltd., Baroda, the Tribunal made an award for 7 days sick leave on full pay and dearness allowance in 1958, subject to the condition that the benefit would cease to apply when the benefits of the Act became available to the workmen.
The benefit of sick leave was therefore lost when the Act was made applicable to the region from December 14, 1969.
That was obviously under a mistaken impression of the sickness benefit which the Act allowed for, as has been shown, it does not deal with all aspects of the demand for sickness benefit and does not, at any rate, provide for the grant of leave on full emoluments during the period of the workman 's physical incapacity to earn his normal wages because of his sickness.
It there fore appears that the Tribunal could not be said to have erred in restoring the benefit which the workmen were re ceiving under the award of 1958, for it was taken away under the mistaken impression that it had been adequately replaced by the new provisions on the coming into force of the Act.
The appellants have filed a statement (exhibit 7) containing information regarding the companies which have provided the benefit of sick leave to its workmen in the region.
It shows that even though the Act was applicable to the workers of the Precision Bearings India Ltd., Baroda, Hindustan Brown Bovari Ltd., Baroda, the Associated Cement Companies Ltd., and M.S. University Press, Baroda, the benefit of sick leave has been allowed to the workmen of.
those companies.
It is therefore .futile to contend that the benefit should not be admissible on the ground that it had not been allowed by other companies in the region.
We also find that such a benefit has been allowed in the case of glass industries by Shree Vallabha Glass Works Ltd., Vallabh Vidyanagar, Ogale Glass Works Ltd., Oglewadi and Vijay Glass Works, Bombay.
Even the Alembic Glass Industries Ltd. has allowed 6 days sick leave in a year to its employ ees in Bangalore and it is permissible to accumulate it upto 12 days in addition to the current year 's leave, under a settlement dated July 17, 1969, which is being continued even after the coming into force of the Act.
Learned coun sel for the appellants have invited our attention to the case between the Textile Labour Association and the Ahmeda bad Millowner 's Association where the demand for sick leave was refused but, as the Tribunal has pointed out, the demand there was for a month 's leave every year in addition to 15 days casual leave and pay in lieu of privilege leave.
The Full Bench of the Industrial Court in that case considered the paying capacity of the mills also, and held that the additional leave demanded by the workmen would be very much beyond the paying capacity of the industry.
As against this, the Tribunal has examined the financial capacity of the two companies in question, and has given adequate rea sons for holding that they are in good financial position and can bear the additional burden of sick leave.
Learned counsel for the appellants have in fact not advanced any argument to the contrary.
Mr. S.T. Desai has raised the argument, in the case of Jyoti Ltd., Baroda, that the Tribunal laboured under a misconception that 86 the sickness benefit would be lost for the first two days of sickness under the first proviso to section 49 of the Act, that the Tribunal should not, in any view of the matter, have given the benefit of 7 days sick leave, and that the workmen did not deserve anything more than sickness benefit for the first two days also.
According to him, what has been awarded by the Tribunal is additional privilege leave for 7 days in the garb of sick leave.
The argument is however futile because, as has been stated, the Tribunal has cor rectly examined the controversy and given adequate reasons for allowing the benefit of 7 days sick leave in the manner set out in the award.
Such a leave could not be categorised as privilege leave as, by its very nature, it would be admissible only in the case of actual sickness certified by a registered medical practitioner.
It would thus appear that the appellants have not been able to show that the awards in question are illegal or unjust; or would adversely affect the economy or the indus trial peace, or lead to imbalance in the conditions of service in other industrial establishments.
It appears, however, that it was not necessary, in the circumstances of the case, to award the benefit of the sick leave with retro spective effect from January 1, 1975, in the case of Jyoti Ltd. Baroda.
The appeals therefore fail and are dismissed except that the award in the case of Jyoti Ltd., Baroda, is made effective from the date of its commencement.
The appellant companies shall pay to the workmen ' the costs of these appeals; one set of counsel 's fees.
P.B.R. Appeals dismissed.

summary/full:
The workmen 's demand for grant of sick leave and its accumulation upto a period was rejected by the employers on the ground that the provided more than adequate sickness benefits, and that any additional benefits would place a financial burden on the industry and would adversely affect other industries in the region.
The Tribunal, to which the dispute was referred, partly granted the workmen 's demand.
On appeal to this Court it was contended that section 61 of the debarred a person enti tled to any of the benefits under that Act from receiving similar benefit under the provisions of any other Act and as such the workmen were not entitled to the benefit of sick leave.
Dismissing the appeals, HELD: (1) The , does not deal with the question of sick leave.
The scheme of the benefits admissible under the Act does not cover the work men 's demand for sick leave to the extent allowed by the Tribunal.
Section 61 is not applicable because the benefits granted by the Tribunal are not similar to those admissible under the Act.
[84 C] The Hindustan Times Ltd., New Delhi vs Their Workmen [1964] 1 SCR 234 and Technological Institute of Textiles vs Its Workmen and others applied.
(2) Sickness benefit under the Act cannot be said to be adequate, for, it works out to about half the average wage of a workman which benefit is not admissible for the first two days of sickness except under the conditions provided in the Act.
A workman is prevented from earning the normal daily wages during the period of his illness and there is no justification for the argument that the rate of benefit at about half his wage, under the Act, should be considered sufficient so as to deny him the benefit of sick leave on full emoluments for a period of 7 days when he is certi fied by a competent medical officer to be ill for that or a longer period.
Sickness is a serious misfortune to a work man for it not only prevents him from earning his normal wages, but is a drain on his meagre financial resources by way of additional expenditure on food, nursing and visits to the medical centre etc.
[84 E F] (3) The Tribunal could not be said to have erred in restoring the benefit which the workmen were receiving under an earlier award.
The benefit of sick leave to the employ ees in the region was lost when the Act was made applicable to the region from December 14, 1969.
This was obviously under a mistaken impression.
The Act does not deal with all aspects of sickness benefit and does not provide for the grant of leave on full emoluments during the period of a workman 's physical incapacity to earn his normal wages because of his sickness.
[85 B C] (4) There is no force in the argument that the Tribunal had granted additional privilege leave for 7 days under the garb of sick leave because by its very nature sick leave would be admissible only in the case of actual sickness certified by a registered medical practitioner.
[86 B] (5) There is no evidence to show that the benefit had not been allowed by other companies in the region.
The Tribunal had examined the financial 81 capacity of the companies and had given adequate reasons for holding that they were in good financial position and could bear the additional burden.
[85 H] (6) It has not been shown that the awards are illegal or unjust, or would adversely affect the economy or the indus trial peace, or lead to imbalance in the conditions of service in other industrial establishments.
[86 C]


judgement:
N: Criminal Appeals Nos.
39 40 of 1976.
(From the Judgment and Order dated 1 12 1975 of the Punjab and Haryana High Court in Criminal Original Nos.
13 Crl. of 1975 and 14 Crl. of 1975).
D. Mookherjee and Harbans Singh and V.M. Jain, for the appellants.
Deven Chetan Das, Advocate General, Haryana and R.N. Sachthey, for the respondent.
The Judgment of the Court as delivered by RAY, C.J. These are appeals under section 19(1)(b) of the against the judgment and order dated 1 December, 1975 of the Full Bench of the High Court of Punjab and Haryana.
243 The appellants wrote a letter on 20 February 1975 to the President with copies to the Prime Minister, Chief Justice of India, the Chief Minister of Haryana and the Chief Jus tice of Punjab and Haryana High Court.
The letter was signed by 15 members of the Bar belonging to the District Bar Association, Bhiwani.
In that letter they brought to the notice of the President that Justice D.S. Tewatia of the Punjab and Haryana High Court visited the session division of Bhiwani and inspected the Courts from 14 February 1975 to 19 February 1975.
In that letter they further stated as follows: "The learned Judge met the members of the Bar on 15 February, 1975 in the Bar Room, Bhiwani.
During the course of the meeting, the learned Judge criticised the Government 's policy in regard to its attitude towards the judiciary.
Besides the learned Judge was openly attacking the Govern ment in its political as well as administrative decision.
On the ' whole, he gave an impression that he was not a Judge but a politician who had come to Bar Room.
When the members of the Bar who had gone to meet the learned Judge in the P.W.D. Rest House, Bhiwani he discussed politics with them and criticised the present executive in general and the Congress Party in particular.
He suggested the members of the Bar to revolt against the present Government as it has suppressed the civil liberation (sic) of the individuals and has also failed miserably in all fields.
The Judge further said that the prevailing system of Government is not good in this country and we must adopt the communist form of Govern ment which can save the nation.
Later on he had some pri vate political discussion with the local C.P.M. leaders.
He also accepted the hospitality of the Technological Institute of Textiles (Mills) people who also took him for a sight seeing from Dadri to Pilani.
The members of the District Bar Association highly regret the attitude of Justice D.S. Tewatia and urge the Government to take appropriate action in this regard".
Five members of the Bar Association at Charkhi Dadri sent a letter addressed to the President.
with copies to the Chief Justice of Punjab and Haryana High Court, the Chief Minister of Haryana, the Chief Justice of India and the Prime Minister.
In that letter they said that Justice D.S. Tewatia visited the Bar and inspected the court at Charkhi Dadri on 17 February, 1975.
Thereafter they stated as follows: "While talking with the members of the Bar, he pointed out that the library of this Bar seems to be very poor.
Then Shri Virender Kumar Single, a member of the Bar requested the honourable Judge to help the Bar either by supplying books or by allocating the grant by the High Court so that the needy Bar may be able to purchase necessary books for the library.
Then the Honourable Judge turned down the request and replied that it is never possible in the present system of Government of India.
If you want this kind of help then you should prepare yourself for the commu nist Government in India by creating such atmosphere in the country.
At another stage also during the course of his discussion with the members of the Bar over the matter of Rajasthan Law students demands in which they demanded a grant 244 of Rs. 5000/ from the Government for the library of each fresh law graduate and Rs. 200/ per month for a period of two years the initial stage of their legal practice he strongly emphasised the need for the communist system of Society and Government in India to fulfil these demands.
The learned Judge also met Smt.
Chandrawati separately and discussed with her the political affairs of the State.
He also expressed his desire to see Comrade Dharam Singh a member of the Marxist Communist Party at his residence before Smt.
Chandrawati.
During his stay in the rest house he also discussed the teachers agitation and individual position of various political leaders in the State.
He also enquired all about Shri Sohan Lal a leader of the teacher 's movement in the State".
The letter concluded by saying that the Hon 'ble Judge during his entire stay in his tour deliberately showed the bent of his mind towards commu nism while exchanging view on various matters.
The appellants took a copy of their letter to the Chief Justice of Punjab and Haryana.
The appellants could not see the Chief Justice and left the letter with the Registrar in a closed cover.
The Registrar told them that the closed cover could reach the Hon 'ble Chief Justice, A notice was issued by the High Court on 12 March 1975 as follows: "Letter dated 20th February, 1975 a copy of an application dated 20 February, 1975 signed by 15 members of the District Bar Association, Bhiwani, has been placed for the consideration of this Bench.
On a perusal of the con tents thereof, a prima facie case of criminal contempt is made out.
We therefore direct that the contempt of Court (Punjab 'and Haryana) Rules, 1974 be issued to each of the signatories of the above said application, returnable for the 1st of April, 1975".
The High Court did not take any action against two persons on the letter written by five members of the Bar Association of Charkhi Dadri.
Each of the appellants affirmed an affidavit in this pattern.
"It is an article of faith with the deponent that dignity and respect of all Courts and of all Judges and particularly of the High Court must be maintained for, amongst other reasons, on that depends the orderly function ing of the society as also prestige of the profession to which the deponent has the honour to belong.
The deponent has been taught to believe that a Judge ought always to steer clear of all avoidable controversial matters.
The deponent most respectfully submits that the contents of the letter which he and others addressed to the President of India cannot be construed as scandalising the Hon 'ble Judge or the Court in any manner to weaken people 's faith in the administration of justice.
The letter in question was addressed by the deponent to the President of India with copies to others with the sole object of conveying the opinion that the public expression by the Hon 'ble Judge of his personal views on controversial political matters con cerning the merits and demerits of the present system of the Government was not in keeping with the well accepted role of proverbial aloofness of a Judge.
The letter was addressed ,bona fide, in good faith and without 245 any ill will and no publicity was given to it.
It was intended to be a privileged communication made solely with a view to uphold the dignity of the Court.
In order to prevent unwanted disclosure of its contents, the communica tion in question was brought personally by two members of the Bar Association, Bhiwani to Chandigarh in a closed cover addressed to the Chief Justice for being handed over to him for his personal attention.
The deponent submits that the contents of the letter.
have no relevance or relation to the functioning of the learned Judge of the High Court.
The letter does not interfere much less substantial ly with due course of justice or proper administration of law by the courts.
The deponent submits that there was no intention whatsoever on his part to scandalise the Hon 'ble Judge or this Hon 'ble Court or to lower the authority or undermine the prestige of the learned Judge or of the Hon ' ble Court or to weaken in any way the confidence of the people in the administration of justice.
The deponent respectfully submits that the communication does not bear out any foundation for an action for criminal contempt.
In any case, if in view of this Hon 'ble Court, the action of the deponent in addressing the letter in question constitut ed for any reason contempt of court, one would be more sorry than the deponent himself.
Therefore, the deponent tenders his apology to this Hon 'ble Court, for the same, and prays for its acceptance.
" The Full Bench of the High Court consisting of Justice Surjit Singh Sandhawalia, Justice Prem Chand Jain and Jus tice Bhupinder Singh Dhillon extracted portions from the affidavit of the appellants to which references has been made.
The Full Bench thereafter referred to paragraph 9 of the affidavit where the deponents said that "if in view of this Hon 'ble Court the action of the deponent in addressing the letter in question constituted for any reason contempt of court, no one would be more sorry than the deponent himself.
Therefore, the deponent tender his apology to this Hon 'ble Court for the same and prays for its acceptance".
After the recital of paragraph 9 the judgment of the Full Bench said as follows: "In view of the averments made in the affidavit filed in rely and in particular in paragraph 9 thereof we accept the apology tendered on behalf of the respondents and discharge the rule issued against them".
In our view the judgment is utterly unsound and unsus tainable.
The elementary basis of acceptance of apology is that there is to be a finding of committal of contempt.
The deponents stated that if the Court is of the view that the letter of the deponents constitute for any reason contempt of court, the deponents tender apology.
It is a conditional apology.
The condition is that if there is contempt the deponents tender apology.
In the absence of any finding by the High Court that the appellants committed any contempt of court there was never any occasion for acceptance of apology.
It appears before us that the allegations in the letter were not disputed and challenged.
The High Court proceeded on the basis that the letters written by the appellants were correct.
It is indeed curious 246 that the High Court in the notice referred to the letter of the appellant and said "on a perusal of the contents thereof a prima facie case contempt is made out".
The High Court did not mention which particular portion of the letter constituted contempt of court.
It is necessary to state here that if any Judge address es on political problems or controversies the Judge exposes himself to discussion by public.
The reason is that the Judge travels from his judicial work and descends into the arena of politics and parties.
The Judge cannot in such a case take shelter behind his office if the public discusses and criticises the views expressed by him.
The reason is obvious.
It is no part of the duty of a Judge nor is it a duty in discharge of office of a Judge to go and address a meeting on political matters to redress grievances of the people.
However, if the speech of any Judge is criticised and if it becomes a disputed question of fact as to whether any Judge did speak or not as is alleged by the writer the matter would have to be ascertained by the court on facts whether the Judge concerned did speak on the matters ascribed to him before the court would take any action against the persons who would criticise the Judge 's speech.
We wish to make it clear that if on facts it appears that the Judge did say things or matters about politics such utterances or views or observations will be the personal opinions expressed by the Judge, and, therefore, the protec tive umbrella of the court cannot be used by way of bringing the critics on the charge of contempt of court.
It also appears in the letter that there is an allega tion that the Judge accepted hospitality of some organisa tion.
To say that will not by itself be a contempt.
All we need say is that it will not be correct and proper for any Judge to accept the invitation and hospitality of any busi ness or commercial organisation or of any political party or of any club or organisation run on sectarian, communal or parochial lines.
Invitations by the Bar Associ ation or social invitations naturally Stand on a different footing and no one will find an exception to any Judge attending a social function.
Judges are by reason of their office and nature of work expected not to get involved in controversial matters, or to concern themselves with political issues or policies under taken by political parties as a part of their political programme.
We are of opinion that the Full Bench fell into the error of accepting the apology without finding that the appellants committed any contempt.
In the absence of such a finding no question arises for acceptance of apology.
In view of the fact that the High Court proceeded on the basis that the allegations in the letter were unchallenged we are of opinion that the matters did not constitute any contempt.
The High.
Court should have dropped the proceed ings and not pursued the matter.
247 The judgment is set aside.
The contempt proceedings are dropped.
We should state here that the Advocate General of Haryana quite fairly stated that the letter did not consti tute any contempt.
M.R. Appeals allowed.

dataset_name: IN-Abs

summary/full:
The appellants wrote a letter to the President of India, with copies to some others including the Chief Jus tice of Punjab and Haryana High Court, criticising, the behaviour of a High Court Judge, who, during his visit to the Sessions Division of Bhivani, spoke against the Govern ment 's policies and canvassed for a communist system.
The High Court issued a notice against the appellants; making out a case of criminal contempt of court.
The appellants tendered a conditional apology contingent on the courts finding their action to be contempt of court.
The apology was accepted.
Allowing the appeals and dropping the contempt proceedings, the Court.
HELD: (1) The elementary basis of acceptance of apology is that there is to be a finding of committal of contempt.
The Full Bench fell into the error of accepting the apology without finding that the appellants committed any contempt In the absence of such a finding, no question arises for acceptance of apology.
F G] (2) Judges are, by reason of their office and nature of work, expected not to get involved in controversial matters, or to concern themselves with political issues or policies undertaken by political parties.
If any Judge addresses on political problems or controversies, the Judge exposes himself to discussion by public.
He cannot in such a case take shelter behind his office if the public discusses and criticises the views expressed by him, and the protective umbrella of the court cannot be used by way of bringing the critics on the charge of contempt of Court.
[246 A D, F G]


judgement:
Civil Appeal No. 1744 of 1968.
(Appeal by Special Leave from the Judgment and Order dated 14 6 1967 of the Mysore High Court in Writ Petition No. 440/65).
Mrs. Shyamala Pappu and Girish Chandra, for the Appellant.
Narayana Nettar, for Respondents 4 and 5. 3 1338SCI/76 828 The Judgment of the Court was delivered by BEG, J.
The judgment under appeal after certificate of fitness of the case under Article 133(1)(c) of the Constitu tion of India, is very short as it purports to follow the ratio decidendi of Union of India vs
G.M. Shankariah & Ors.
,(1) where this Court had held upon a concession by the Attorney General, that a list prepared under Section 115 of the , (hereinafter referred to as 'the Act '), was provisional.
Therefore, it was held that the writ petition was premature as the final list of officers on an integrated seniority list was still to be prepared after hearing objections.
The High Court of Mysore seems to have been under the misapprehension that the case now before us is also governed by what was held by this Court in Shankariah 's case (supra) with reference to an entirely different and provisional list of Forest Officers.
The case now before us pertains to Animal Husbandry and Veterinary Services of the Mysore State in which the petitioner, was given, in the final integration list, a position to which he objected.
Apparently, the petitioner, whose date of birth is given as 28th June, 1915, has retired.
He is a respondent who has not appeared before us, and, therefore, could not be heard by us.
We have, however, gone through his petition and the affidavit filed in its support where, in paragraph 16, he states as fol lows: "The Mysore State Civil Service Integra tion Rules 1960 provide for filing objections only against the preliminary provisional Inter State Seniority List and do not provide any provision for filing objections or appeal ing against the final Inter State Seniority List as per Annexure 'B '.
Thus we have no other legal remedies open to us for the re dressal of our grievances and the abridgement of our fundamental rights guaranteed under the Constitution of India, and, therefore, we are forced to approach this Honble Court to invoke the writ jurisdiction for the redressal.
" It is apparent that the petitioner re spondent was claiming relief against the final Inter State seniority list although he was given due opportunity to object to the provi sional list.
Mrs. Shyamala Pappu, who has looked up the departmental records, informs us that the petitioner was given ample opportu nity to file his objections to the preliminary list.
Now, Shankariah 's case (supra) was con fined to an admission on behalf of the Central Government that the list before the Court was provisional so that the petitioners before the Court on that occasion were to get opportuni ties of puting forward their objections before the final list is prepared.
In the case before us, the petitioner admits that the Mysore State Civil Services Integration Rules provided for filing of objections against the preliminary provisional Inter State Seniori ty list.
Presumably, he had that opportunity.
Otherwise, he would, no doubt have objected that the rules had not been complied (1) S.L.R. 1969 p.1 (C. As.
1439 & 1446 of 1967 decided on 16 10 1968).
829 with, which he did not do.
His grievance seemed to be that he was not heard after the final list was prepared.
We are unable to appreciate.
this line of attack upon the final list.
We think that the concession in Shankari ah 's case (supra) was confined to the facts of that particular ease.
There the list was provisional.
The most that could be urged, in the light of decisions of this Court, is that a person whose seniority is to be determined under Section 115 of the Act must be given.
an opportunity to object to the proposed assign ment of a place to him in the seniority list.
As already observed above, the petitioner had ample opportunity to do that.
Hence, the principle recognised in Shankariah 's case (supra) was not applicable to such a case.
The judgment of the Mysore High Court was, in our opinion, based on an apparent misun derstanding of Shankariah 's case (supra) and on a failure to appreciate the facts of the case of the petitioner respondent which is now before us.
There was not reference whatsoever to any facts of the case in the order of a few lines by which the petitioner 's petition was disposed of by the High Court on the errone ous assumption that it was governed by Shan kariah 's case (supra).
As the petitioner in the High Court, who is the, respondent before us, was unrepresented, Mrs. Shymala Pappu, appearing on behalf of Union of India, very Conscientiously, took us through Union of India & Anr.
P.K. Roy & Ors.
( '1) from which, learned Counsel thought, the following observations could perhaps be cited on behalf of the petitioner respondent (at p. 202): "it was argued by Mr. Ashoke Sen that in regard to both these matters the respond ents have a right of representation and the final gradation list should have been pub lished after giving them further oppor tunity to make a representation.
Normally speaking, we should have thought that one opportunity for making a representation against the preliminary list published would have been sufficient to satisfy the require ments of law.
But the extent and applicationof the doctrine of natural justice cannot be imprisoned within the straight jacket of a rigid formula.
The application of the doctrine depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the per sons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case (See the decision of this Court in Shri Bhagwan and Anr.
vs Ram Chand & Ant. ; , 222.
In view of the special circumstances of the present Case we think that the respondents were entitled to an opportunity to make a representation with regard to the two points urged by Mr. Ashoke Sen before the final gradation list was published.
As no such opportunity was furnished to the respondents with regard to these two matters (1) 202.
830 we hold that the combined final gradation list dated April 6, 1962, so far as category 6 is concerned, is ultra vires and illegal and that part of the notification alone must be quashed by grant of a writ in the nature of certiorari".
We think that any claim to have a say against the final fist prepared, on an analogy with the second opportunity which is afforded to a person to be punished after arriving at a decision on the facts of a departmental trial and proposal to inflict a particular punishment upon him, is quite inap propriate.
No element of punishment at all is involved in preparing either a provisional or a final seniority list.
All that is done is that certain principles are applied in the preparation of the list.
These principles are generally found in the rules or executive directions which are known to or are capable of being found out by the persons affect ed.
When a provisional seniority fist is prepared, there is a possibility of some mistakes occurring about the facts of a case or in the application of those rules.
It would, therefore, be quite fair to give a person affected an 'oppo rtunity to be heard against the proposed fist before it is finalised so that any possible mistakes, either on facts relating to his particular case or of law in applying the rules governing seniority to those facts, may be rectified.
But, once he has had that opportunity, it cannot possibly be said that he should have a further opportunity against even a final seniority list.
If he was to have that opportunity the list would not really be final but only provisional or preliminary.
It will be obviously contradictory to hold it to be a final list and yet declare it Subject to modifica tions on further objections.
We are unable to find any rule of natural justice having such a paralysing scope.
In P.K. Roy 's case (supra), the opportunity afforded was to be given before the publication of the final list.
It was an opportunity to be given before the final list was to be declared and published as a final list.
A right to representation was recognised as existing at time when the list was still to be considered as not finalised presumably because some mistakes had crept in due to want of heating on two points.
Evidently what was meant was that the publication gave the list finality.
In that particular case, the fist had been prepared without due regard to the particular important points which had to be considered before finalisation.
What we have observed does not mean that, if a final list is prepared contrary to the rules applicable or is vitiated on some ground showing that a condition precedent to the finalisation of the list is absent, it would still be inviolable ,Dr sacrosanct.
Even a list purporting to be final can be vitiated by non observance of conditions prece dent.
In order to establish the invalidity of the final list on some such grounds of invalidity, those grounds have to be shown to exist.
We find no such grounds in the ease before us.
Learned Counsel for the Central Government had cited before us Union of India vs
G.R. Prabhavalkar & Ors.
(1) where it was held by this Court (at p. 2106): (1) A.I.R. 1973 'S.c. 2102 at 2106.
831 "In our opinion the contentions of the learned Additional Solicitor General are well founded.
The Central Government, under Sec. 115 of the Act, has to determine the princi ples governing equation of posts and prepare a common gradation list by integration of services.
To assist it in the task of inte gration of services and for a proper consid eration of representations, the Central Gov ernment is empowered to establish Advisory Committees.
The Central Government is bound to ensure a fair and equitable treatment to officers in the matter of integration of services and preparation of gradation lists.
It has also to give a full and fair opportuni ty to the parties affected to make their representations; and the Central Government has also to ,give a proper consideration to those representations.
So long as the Central Government has acted properly according to the provisions of the Act, we are of the view that a Court cannot go into the merits or otherwise of equation of posts which is a matter within the province of the Central Government".
It was also held there (at p. 2106): "It is no doubt true that the Central Government must have due regard to the princi ples enunciated by it in consultation with the States for the purpose of equation Of posts.
It must not only give an opportunity to the concerned officers to make representations, but it must also give those representations a proper consideration.
It is not within the province of the Courts to lay down what are in the principles to be adopted for purposes of equation.
That falls within the purview of the statute concerned and the authorities charged with such duty.
The power of the Courts is only to see that an authority has acted properly in accordance with the statute.
If that is established, the decision of the authorities concerned will have to stand.
If a particular decision is mala fide or arrived at on totally irrelevant and extraneous consider ations, such a decision can be interfered with by Courts.
In this case, no mala fides are alleged.
" We find that, as was the case of the petitioner in Prabhavalkar 's case (supra), the petitioner respondent Dr. R.D. Nanjiah, and others similarly placed respondents before us have been unable to make out, in their petitions, any grounds for interference with the final list.
We, therefore, allow this appeal, and set aside the judgment and order of the Mysore High Court.
The parties will bear their own costs.
V.P.S. Appeal allowed.

summary/full:
(1 ) When a provisional inter State seniority list is prepared for integrating services after States re organisa tion, there is a possibility of some mistakes occurring about the facts of a case or in the .application of the relevant statute or rules or executive directions governing seniority.
It would, therefore, be quite fair to give the person affected an opportunity to be heard against the proposed list before it is made final under 8. 115.
State Reorganisation Act, 1956, so that.
any possible mistakes, either in the facts relating to his case or in the law or rule applied with regard to the proposed assignment of a place to him in the seniority list may be rectified.
But, once he had that opportunity.
it cannot be said that he should have a further opportunity against even a final seniority list, for then such a list would not really be final but will only he provisional or preliminary.
[830 C D] (2) But, even a final list, if it is prepared contrary to the rules applicable or is vitiated on some ground show ing that a condition precedent to the finalisation of the list is absent, or a particular decision is malafide or arrived at on totally irrelevant or extraneous considera tions.
such a final list could be declared invalid by the Court.
G] In the present case.
the officer was not satisfied with the position given to him the final seniority list.
But, since he had an opportunity Under the integration rules of the State for filing objections against the preliminary provisional list, he cannot urge that he should he heard again alter the final list was prepared.[829 A] He cannot claim to have a say against the final list on the analogy of a second opportunity to show cause against a proposed punishment in a departmental enquiry, because.
no element of punishment is involved in preparing either a provisional or a final seniority list.
[830 B] He is not entitled to any relief because he had not made out in his petition to the Court any of the grounds on which a final list can be assailed.
[831 G] Union of India vs
G.M. Shankariah & Ors. etc.
(S.L.R. 1969 p. 1 ) (C As.
1439 & 1446 of 1967 decided on 16 10 1968) explained.
Union of India & Anr.
v P.K. Roy & Ors.
[1968] 2 S.C.R. 186 @ 202 and Union of India vs
G.R. Prabhavalkar & Ors. ; at 2106, followed.


judgement:
270 of 1955.
Under Article 32 of the Constitution of India for a Writ in the nature of Habeas Corpus.
Hemendra Shah, J. B. Dadachanji and Rajinder Narain, for the petitioner.
M. C. Setalvad, Attorney General of India, C. K. Daphtary, Solicitor General of India, (B. Sen and R. H. Dhebar, with them) for the respondent No. 1. 890 1955 October 14.
DAS ACTG.
This rule was issued on a petition filed under article 32 of the Constitution by one Purshottam Govindji Halai, a citizen of India, calling upon the respondents to show cause why a writ in the nature of a writ of habeas corpus should not be issued by this Court directing the Superintendent, House of Correction, Byculla, being the second respondent herein., to produce before this Court one Govindji Deoji Halai, the father of the petitioner, who is also a citizen of India., for the purpose of being released forthwith.
The facts which are not in dispute may be shortly stated as follows.
The said Govindji Deoji Halai (hereinafter referred to as the "assessee") is the sole proprietor of a business carried on under the name and style of Indestro Sales and Service Co. at No. 50 52, Lohar Chawl Street in the City of Bombay.
Two private limited companies, namely, Indestro India Ltd., and Indestro Eastern Ltd., also carry on business and have their respective offices in the same premises.
The assessee is said to have some connection with the two companies the nature of which, however, is not quite clear on the record before us.
In respect of his own business of Indestro Sales and Service Co., the assessee was assessed to income tax for the years 1943 44 to 1947 1948 and 1951 1952 by the Third Income tax Officer, C 1 Ward, Bombay, at and for Rs. 40,178 4 0.
The assessee not having paid up the assessed amount of tax the Income tax Officer on the 10th April 1951 issued to the ' Additional Collector of Bombay, the first respondent herein, a recovery certificate ,under section 46(2) of the Income tax Act.
It may here be mentioned that the Indestro Eastern, Ltd., was also assessed to income tax at and for Rs. 1,92,000 and a recovery certificate was also issued by the Income tax Officer to the Additional Collector of Bombay.
On the 1st February, 1954 the Additional Collector issued a notice of demand on the assessee for payment of the assessed amount of tax.
No payment 891 having been made, the Additional Collector attached the goodwill and tenancy rights in the said premises by a warrant of attachment issued on the 24th March 1954.
The sale proclamation was issued on the 15th January 1955.
The sale was held on the 25th February 1955 fetching a price of Rs. 33,000 and it was confirmed on the 30th March 1955.
The sale proceeds not being sufficient to satisfy the assessed tax the Additional Collector on the 7th June 1955 issued a notice under section 13 of the Bombay City Land Revenue Act, 1876, requiring the assessee to appear before him in person on the 16th June 1955 and show cause why he, the assessee, should not be apprehended and confined to civil jail in satisfaction of the said certified demand.
The assessee did not appear in person on the appointed day but on the next day, the 17th June 1955, an Advocate acting on behalf of the assessee wrote a letter to the Additional Collector purporting to show cause why the assessee should not be arrested and sent to the civil jail.
The contentions put forward on behalf of the assessee not being considered satisfactory the Additional Collector on the 30th June 1955 issued a warrant for the arrest of the assessee under section 13 of the Bombay City Land Revenue Act, 1876.
The assessee was actually arrested on the 1st July 1955.
On the 8th July 1955 an application was made by the present petitioner to the Bombay High Court under article 226 complaining of the arrest of his father, the assessee, and praying for a writ in the nature of a writ of habeas corpus for the production and release of the assessee.
A rule was issued by the High Court but eventually on the 24th August 1955 the High Court (Chagla, C.J. and Desai, J.) discharged the rule.
No application was made to the High Court for leave to appeal to this Court from the decision of that High Court but on the 2nd September 1955 the present petition was filed in this Court under article 32 of the Constitution for the relief hereinbefore mentioned.
On the 7th September 1955 a rule was issued by this Court on that petition subject to the question of its maintainability in view of the dismissal by the 113 892 High Court of the petition under article 226 from which no leave to appeal to this Court had been sought or obtained.
The rule has now come up before us for hearing.
In the view we have taken about the merits of the petition it is not necessary for us to consider the question of its maintainability after the dismissal of the petition under article 226 or to make any pronouncement, on this occasion, on the scope and ambit of article 32 of the Constitution in that situation.
The principal contentions urged by the learned Advocate appearing for the petitioner are as follows, namely, (a) that section 46(2) of the Indian Income tax Act under which the Income tax Officer issued the recovery certificate to the Additional Collector of Bombay is void under article 13(1) of the Constitution in that the same offends article 22(1) and (2), article 21 and article 14 of the Constitution; (b) that section 13 of the Bombay City Land Revenue Act, 1876 under which the warrant of arrest was issued by the Additional Collector is void under article 13 (1) of the Constitution as the same is repugnant to article 14 of the Constitution.
We proceed to deal with the objections seriatim.
(a): Section 46(2) of the Indian Income tax Act which is impugned before us runs as follows: "46.
(1). . . . . . . . (2) The Income tax Officer may forward to the Collector a certificate under his signature specifying the amount of arrears due from an assessee, and the Collector, on receipt of such certificate, shall proceed to recover from such assessee the amount specified therein as if it were an arrear of land revenue: Provided that without prejudice to any other powers of the Collector in this behalf, he shall for the purpose of recovering the said amount have the powers which under the Code of Civil Procedure, 1908 (Act V of 1908), a Civil Court has for the purpose of the recovery of an amount due under a decree.
The first objection to the above sub section is that it 893 contravenes the fundamental rights guaranteed by clauses (1) and (2) of article 22.
In view of the decision of this Court in the State of Punjab vs Ajaib Singh & Another(1) this objection has not been pressed before us and we need say no more about it.
The second objection to section 46(2) of the Indian Income tax Act is that it is violative of article 21.
Article 21 guarantees that no person shall be deprived of his personal liberty except in accordance with procedure established by law.
In this case the assessee has been arrested and is being detained in jail in execution of a warrant of arrest issued under section 13 of the Bombay City Land Revenue Act, 1876 for the recovery of the demand certified under section 46(2) of the Indian Income tax Act.
As long as those sec tions stand no complaint can be made of infringement of article 21, for those two sections constitute a procedure established by law.
It is only if those sections are void that the question of violation of the fundamental right under article 21 can arise at all.
We have, therefore, to pass on to the third objection to section 46(2) founded on article 14 of the Constitution which alone has been strenuously insisted on before us by learned counsel for the petitioner.
Article 14 is invoked in two ways.
It is pointed out that the first part of section 46(2) provides that the Collector, on receipt of a certificate from the Income tax Officer, shall proceed to recover from the defaulting assessee the amount specified therein as if it were an arrear of land revenue.
It is next said that the proviso to the sub section invests the Collector with all the powers a Civil Court has under the Code of Civil Procedure for the purpose of the recovery of the amount due under a decree.
It is submitted that section 46(2) provides for two different and alternative methods of recovery of the dues and clothes the Collector with the power to apply either of the two methods, that is to say, he may issue a warrant of arrest under section 13 of the Bombay City Land Revenue Act, 1876 against one defaulter and keep him in detention for a period which may (1) ; 894 work out to be much longer than six months and he may proceed against another defaulter under the Code of Civil Procedure and arrest and detain him for the maximum period of six months.
The powers that are thus conferred on the Collector by section 46(2) are unfettered and unguided and enable the Collector, at his will, to discriminate between two defaulters who are similarly situated and thereby violate the behests of the equal protection clause of the Constitution.
This argument appears to us to be founded on a misapprehension about the true meaning of section 46(2).
On a proper reading, that subsection does not prescribe two alternative modes of procedure at all.
All that the sub section directs the Collector to do is to proceed to recover the certified amount as if it were an arrear of land revenue, that is to say, he is to adopt the procedure prescribed by the appropriate law of his State for the recovery of land revenue and that in thus proceeding he is, under the proviso, to have all the powers a Civil Court has under the Code.
The sub section does not prescribe two separate procedures.
The statement to the contrary in the judgment of the Bombay High Court in Shaik Ali Ahmed vs Collector of Bombay(1) does not appear to us to be correct.
In our opinion the proviso does not indicate a different and alternative mode of recovery of the certified amount of tax but only confers additional powers on the Collector for the better and more effective application of the only mode of recovery authorised by the body of sub section (2) of section 46.
Viewed in this light, there is no question of the possibility of any discrimination at all.
This part of the argument cannot, therefore, be accepted.
The other way in which the protection of article 14 is invoked is founded on a comparison of the provisions of the different laws adopted by the different States for the recovery of land revenue.
Section46(2) of the Indian Income tax Act requires the Collector, on receipt of the requisite certificate from the Incometax Officer, to proceed to recover from the assessee the amount specified in the certificate as if it were an (1) I.L.R. , 155. 895 arrear of land revenue.
This means that the Collector must take such proceedings as he would have done if he were engaged in recovering land revenue.
Thus a Collector in the City of Bombay in recovering the certified amount of income tax must proceed under Ejection 13 of the Bombay City Land Revenue Act, 1876 (Bombay Act II of 1876) and arrest and detain him far the period therein mentioned which, prior to the 8th October 1954, might have worked out to a period much longer than six months.
On the other hand, the defaulting assessee in all other parts of the State of Bombay has to be proceeded against under section 157 of the Bombay Land Revenue Code, 1879 (Bombay Act V of 1879) under which he cannot be detained for more than the period limited by the Code of Civil Procedure for the detention of a judgment debtor in execution of a decree for an equal amount of money.
So, even in one State there were two procedures to which defaulting assessees could be subjected according as they were in or outside the City of Bombay.
A Collector in the State of Madras in recovering the certified amount of income tax has to proceed under section 48 of the Madras Revenue Recovery Act, 1864 (Madras Act II of 1864).
When the Collector finds that the certified amount cannot be liquidated by the sale of the property of the defaulting assessee and the Collector has reason to believe that the defaulter is wilfully withholding payment or has been guilty of fraudulent conduct in order to evade payment, the Collector may, under section 48 of that Act, cause the arrest and imprisonment of the defaulter, not being a female.
But that section goes on to say that no person shall be imprisoned for a longer period than two years or for a longer period than six months if the arrear does not exceed Rs. 500 or for a longer period than three months if the arrear does not exceed Rs. 50.
A Collector in West Bengal proceeding to recover the certified amount under the Bengal Public Demands Recovery Act, 1913 (Bengal Act III of 1913) cannot, under section 31 of that Act, direct the detention of the defaulting assessee in prison for more than six months if the amount is more 896 than Rs. 50 or in other cases for more than six weeks.
The defaulter in the Punjab cannot, under section 69 of the Punjab Land Revenue Act, 1887 (Punjab Act XXVII of 1887), be kept in civil jail for more than one month.
Section 148 of the U. P. Land Revenue Act) 1901 (U.P. Act III of 1901) limits the period of detention to 15 days and also exempts many persons, e.g. Talukdars and women, from any imprisonment.
The Assam Land and Revenue Regulation, 1886 (Reg.
I of 1886) does not insist on imprisonment at all.
A cursory perusal of the provisions of the different Acts referred to above will at once show that in the matter of recovery of arrears of land revenue the different States have prescribed different machinery, some obviously harsher than others.
The argument is that income tax being a subject with respect to which the Union alone may make law and the recovery of it being the Union responsibility, the machinery for the recovery of income tax should be framed on a uniform all India basis, for to the Union all defaulters who may not pay up the Union demand are similarly situated; but the Indian Income tax Act by section 46(2) authorises the Collectors in different States to adopt machinery which differs from State to State, so that defaulters are treated differently in different States.
The contention is that section 46(2) which sanctions such discrimination is clearly violative of the equal protection clause of the Constitution and has, therefore, become void under article 13 (1).
The learned Attorney General appearing for the respondents seeks to meet the aforesaid argument in two ways.
In the first place, he urges that the impugned sub section does not by itself make any discrimination.
All that it says is that the certified amount of income tax is to be recovered as if it were an arrear of land revenue and there its operation ends.
In recovering the certified demand the Collector has to have recourse to the machinery available to him for enforcing a demand for arrears of land revenue but the provisions of the State laws which prescribe that machinery are not incorporated in section 46(2).
897 If the State laws are discriminatory that vice cannot be imputed to section 46(2).
There is good deal to be said on either side.
The State laws prescribe the procedure for the recovery of arrears of land revenue only and they are not, in terms and by themselves, concerned at all with the recovery of income tax demand.
That machinery is made available for the purpose of recovery of income tax by virtue only of section46(2) of the Indian Income tax Act.
In the matter of recovery of income tax the Collectors adopt theprocedure laid down by the State laws, not because the State laws enjoin them to do so but because section 46(2) directs them to do so.
In other words, it is section 46(2) which tells the Collectors of Madras to follow the procedure under section 48 of the Madras Revenue Recovery Act, 1864 as if those provisions are set out in the Indian Income tax Act in extenso and it tells the Collectors of all other States to adopt the procedure prescribed by their own State laws as if the provisions prescribing that procedure were set out in that section.
In such a situation it is a plausible argument to say that all the provisions of all the State laws are, mutatis mutandis, to be read into section 46 (2) and that, therefore, if there be any vice of discrimination in the State laws that vice cannot but be regarded as having crept into section 46(2).
On the other hand, to hold that all the provisions of all the State laws for recovery of arrears of land revenue have been referentially incorporated in section 46(2) of the Indian Income tax Act will lead us into difficulties.
Will the subsequent amendments of the State laws be also incorporated in section 46(2)? Section 46(2) of the Indian Income tax Act having incorporated the State laws as they then stood, how can any State Legislature which has no power to make any law with respect to income tax alter or amend section 46(2)? Are the State laws as incorporated in section 46(2) at the time it was enacted to be treated as crystallised and to be applied by the Collectors, although the State laws for the recovery of arrears of land revenue may be materially altered by sub 898 sequent amendment? These are some of the questions which will have to be answered before we can come to a decision on this point.
In the view we take of the second part of the learned AttorneyGeneral 's argument to which we shall presently refer it is not necessary for us to express any opinion on this part of his argument.
The learned Attorney General then argues that assuming that section 46(2) by incorporating the different State laws which are not uniform has become discriminatory such discrimination is permissible and does not offend the fundamental right guaranteed by article 14.
This argument appears to us to be well ,founded.
The meaning, scope and effect of the article in question have been explained by this Court in a series of decisions beginning with that in Chiranjit Lal Chowdhury vs The Union of India(1) and ending with that in Budhan Chowdhury and others vs The State of Bihar(1).
The following passage in the unanimous judgment of the Full Court in the last mentioned case at p. 1049 briefly summarises the true intendment of the constitutional provision: ". . . . . . .
It is now well established that while article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation.
In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question.
The classification may be founded on different bases; namely, geographical, or according to objects or occupations or the like.
What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration.
It is also well established by the decisions of this Court (1) [1950) S.C.R. 869.
(2) ; 899 that article 14 condemns discrimination not only by a substantive law but also by a law of procedure".
The respective contentions now put forward as to the validity or otherwise of section 46(2) of the Indian Income tax Act have to be judged in the light of the principles so laid down by the Full Court.
The Indian Income tax Act imposes a liability on persons who are amenable to it to pay the tax assessed against them.
The assessed amount is a public demand of the Union and has to be recovered, if not voluntarily paid up.
The assessees are scattered all over the Union and machinery has to be devised for that purpose.
On looking round the Union finds that there is machinery in every State for recovery of land revenues which are State demands.
Each State in its wisdom has devised a machinery which it has considered appropriate and suitable for the recovery of its own public demand.
As was said by the Supreme Court of America in Middleton vs Texas Power and Light Company(1) "There is a strong presumption that a legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds".
It is conceded that each State is well within its rights to devise its own machinery for the recovery of its own public demand and that no person belonging to one State can complain that the law of his State is more rigorous than that of the neighbouring state.
The reason is obvious, for the people of one State are not similarly situated as people of another State.
Their needs, as understood by their own Legislature, are different from those of the people of other States.
If in the matter of recovery of arrears of land revenue defaulters of one State cannot complain of denial of equal protection of the laws on the ground of the difference in the modes of recovery prevailing in other States, can it be said to be unreasonable for the Union to adopt, for the recovery of its public demand from defaulters of each State, the same mode of recovery (1) ; , 157.
114 900 of public demand prevailing in that State? Here the defaulters are classified on a territorial, or geographical basis and this basis of classification has precisely the same correlation to the object of the Indian Income tax Act as it has to the object of the different Public Demands Recovery Acts.
The objects of the two Acts in this behalf are in pari materia and the same considerations must apply to both.
People of each State are familiar with and used to the coercive processes which each State finds it necessary to impose on its own people for the recovery of public demand and there can be no hardship and consequently no objection to their being put to the same processes for the recovery of the public demand of the Union.
The grouping of the income tax defaulters into separate categories or classes Statewise is certainly a territorial classification which is based on an intelligible differentia and the subjection, for the purposes of the recovery of the certified demand, of each of such classes of defaulters to the same coercive process devised by their own State, on a consideration of local needs, for the recovery of their own public demands, cannot be regarded as bereft of a reasonable nexus or correlation between the basis of classification and the object sought to be achieved by the Indian Income tax Act any more than it can be so regarded with respect to the respective State laws.
The fact that the income tax demand is a Union public demand appears to us to make no difference in the legal position.
The Indian Income tax Act classifies people into various groups for the purpose of imposing the tax and taxes them differently, e.g., insurance companies which are taxed differently from an ordinary business concern and in some cases exempts them altogether, e.g., agriculturists and persons with income below a certain level.
There can, on the same principle, be no objection to people of a backward area who may be in need of aid in the shape of tax remission to be exempted from 'taxation either wholly or in part.
If this is right when a question of imposition is concerned, it cannot be wrong when the matter is one of recovery.
The two together make up the full measure of the 901 burden and if it is permissible to vary the burden at one end it must be equally valid to vary it at the other for the same or similar reasons.
It is said that the income tax demand being a Union demand there should be uniformity in the punishment to be, meted out to defaulters and it can be done easily by suitably amending section 46(2) so as to provide for the detention of all defaulters for the same period in all cases in all States.
In the first place, it is a fallacy to regard arrest and detention.
of a defaulter who fails to pay income tax as a punishment or penalty for an offence.
It is a coercive process for recovery of public demand by putting pressure on the defaulter.
The defaulter can get himself released by paying up the dues.
In the next place, the Court is only concerned to interpret the law and, if it is valid, to apply the law as it finds it and not to enter upon a discussion as to what the law should be.
The whole problem before us is whether the apparent discrimination can be supported on the basis of a permissible classification.
The case of Bowman vs Lewis(1) is in point.
We do not, however, find it necessary to express any opinion on the extreme contention urged by the learned Attorney General, on the authority of that decision, that a mere territorial classification, by itself and without anything else, is enough to place the law beyond the operation of the equal protection clause.
Indeed, in that very case it was recognised that it was not impossible that a distinct territorial establishment and jurisdiction might be intended as or might have the effect of discrimination against a particular race or class where such race or class should happen to be the principal occupants of the disfavoured area.
For the purposes of this case it will suffice to say that the discrimination complained of is not unconstitutional for the simple reason that the impugned law is based on a territorial classification having a reasonable nexus or correlation between that basis of classification and the object sought to be achieved by the Act.
Our decision in The State of Rajasthan vs Rao Manohar Singhji(2) which is relied on by learned counsel for the petitioner is easily (1) ; ; (2) ; 902 distinguishable on facts for, the law impugned in that case for the first time imposed certain disabilities on Jagirdars of a certain area of the State and there was no evidence that those Jagirdars were in any way different from the Jagirdars of the other areas of the State.
In the present case the classification has been made Statewise and it is clear that in the matter of payment of public demands of the States the people of different States are not similarly situated and their own States have imposed on them such coercive processes as the circumstances and needs of each State require.
The law impugned before us has only adopted, for its own purpose, the same coercive process which was devised by the States for their own purposes which are closely akin or similar to the purpose of the Union.
The same or similar considerations apply to both cases.
There is the same or similar correlation between the basis of classification and the object sought to be achieved by the Indian Incometax Act.
To deny this power to the Union on constitutional grounds urged before us will lead us to hold that no new offence created by law can be made triable according to the procedure laid down in the Code of Criminal Procedure, for that Code sanctions different modes of trial in different areas, namely, by a Section 30 Magistrate in some areas, by the Sessions Judge with assessors in certain areas and by the Sessions Judge with jurors in other areas.
Adoption of an existing machinery devised for a particular purpose cannot, if there be no vice of unconstitutionality in the machinery render it unconstitutional if it is made to subserve a purpose closely akin or similar to the purpose for which it bad been devised.
The first objection formulated by learned counsel for the petitioner must, therefore, be rejected.
As already stated under section 46 (2), the Collector, on receipt of the certificate from the Income tax Officer, has to proceed to recover the certified demand as if it were an arrear of land revenue.
This means that the Collector of a particular place has to take steps as indicated in the State law relating to the recovery of arrears of land revenue.
As already stated, in the State of Bombay there are two 903 statutes regulating the procedure for the recovery of arrears of land revenue according as the defaulter resides in the City of Bombay or in any other area within the State of Bombay.
Section 13 of the Bombay City Land Revenue Act, 1876 applies to the City of Bombay and section 157 of the Bombay Land Revenue Code, 1879 applies to the rest of the State.
Prior to the 8th October 1954 the portion of section 13 of the Bombay City Land Revenue Act, 1876 which is relevant for our present purpose was as follows: "If the sale of the defaulter 's property shall not produce satisfaction of the demand, it shall be lawful for the Collector to cause him to be apprehended and confined in the civil jail under the rules in force at the Presidency for the confinement of debtors, for which purpose a certificate of demand under the Collector 's signature sent with the defaulter shall be the sheriff 's sufficient warrant, equally with the usual legal process in ordinary cases of arrest in execution of judgment for debt: Provided, however, that such imprisonment shall cease at any time upon payment of the sum due, and that it shall in no case exceed one day for each rupee of the said sum".
Section 157 of the Bombay Land Revenue Code, 1879 which provides for the arrest and detention of the defaulter residing outside the City of Bombay Contains the following proviso: "Provided that no defaulter shall be detained in imprisonment for a longer period than the time limited by law in the case of the execution of a decree of a Civil Court for a debt equal in amount to the arrear of revenue due by such defaulter".
A cursory perusal of the two sections will show at once that the procedure prescribed by section 13 of the Bombay City Land Revenue Act, 1876 for the recovery of arrears of land revenue was harsher and more drastic than the procedure laid down in section 157 of the Bombay Land Revenue Code, 1879 in that a defaulter residing in the City of Bombay could be kept in detention for a day for every rupee of the arrears which might considerably exceed the maximum period of six months which is the period 904 limited by the Code of Civil Procedure for the detention of a judgment debtor in civil jail.
The argument is that on the advent of the Constitution section 13 of the Bombay City Land Revenue Act, 1876 became void under article 13(1) in that it denied to the Bombay defaulter equality before the law in comparison with the defaulter outside the City of Bombay, for he could be detained for a longer period of time.
In the view we have taken, it is not necessary to express any opinion whether the discrimination brought about by the two sections was supportable on the ground of a reasonable classification based on territorial considerations so as not to offend the constitutional inhibition.
Assuming, then, but not deciding, that section 13 of the Bombay City Land Revenue Act, 1876 became inconsistent with the fundamental right guaranteed by article 14 and, therefore, became void to the extent of such inconsistency, it was not, as recently explained by this Court in Bhikaji Narayan Dhakras vs The State of Madhya Pradesh, Nagpur and Another(1), obliterated from the statute book for all times or for all purposes or for all people.
The effect of article 13(1) is that the law could not stand in the way of the enjoyment of fundamental rights.
The law was not dead.
Further, the law was amended on the 8th October, 1954 when the proviso to section 13 quoted above was replaced by the following proviso: "Provided that such imprisonment shall cease at any time upon payment of the sum due and that it shall in no case exceed (i) A period of six months when the sum due is more than Rs. 50; and (ii)A period of six weeks in any other case.
" This amendment is nothing less than an enactment of a new provision.
It lays down a new law which is similar to the law laid down by section 157 of the Bombay Land Revenue Code, 1879.
Therefore, the disparity that prevailed between the original proviso to section 13 of the Bombay City Land Revenue Act, 1876 and the proviso to section 157 of the Bombay Land Revenue Code,, 1879 is now removed, The (1) ; 905 disparity between the two provisions as they originally stood being thus eliminated, the vice of unconstitutionality is also removed and section 13 of the Bombay City Land Revenue Act, 1876, as it now stands, cannot be assailed as repugnant to article 14 of the Constitution.
It was faintly suggested that as the assessment proceedings had been started and the certificate had been issued by the Income tax Officer to the Additional Collector of Bombay and the Additional Collector issued a notice of demand and actually attached the properties prior to the amendment, the assessee must be governed by section 13 as it originally stood and not by it as subsequently amended.
We do not think there is any substance in this contention.
It is true that the warrant of attachment of the property was issued on the 24th March 1954 but the sale proclamation was issued and the sale was actually held after the date of amendment.
The defaulting assessee might have paid up the dues in which case there would have been no occasion for sale.
It is, therefore, his default that occasioned the sale.
Again, the sale proceeds might have been sufficient to cover the certified demand,, in which case there would have been no occasion for the issue of warrant for his arrest.
It is only after the sale proceeds were found to be insufficient to satisfy the assessed amount and the assessee failed to pay up the balance that the question of the arrest of the defaulter arose.
By that time section 13 had been amended and the warrant of arrest was issued on the 7th June 1955, that is to say, long after the amendment of the section.
In our opinion, the second ground urged by the learned counsel must also be negatived.
We may mention that our attention was drawn to the decision of the Madras High Court in Erimmal Ebrahim Hajee, vs The Collector of Malabar(1) but learned counsel could not rely upon it as an authority as it was itself under appeal before this Court.
The result, therefore.
, is that this application must be dismissed.
(1) 906 CHANDRASEKHARA AIYAR J. I agree rather reluctantly.
The reluctance is not because there is anything in the reasoning of the judgment pronounced just now by my Lord which does not appear to be sound but because I am not happy about the result.
We have to face and accept wholly different consequences for non payment of income tax according as the assessee belongs to one State or another.
The nature of the tax is one and the same, and it is levied under a single Central Act, and yet the ultimate coercive processes for recovery differ in nature and extent between State and State.
We have to attribute to the legislature a rational classification based on geographical areas, the susceptibilities of people in those areas, and their reactions to the adoption of methods of recovery.
For arrest and detention, wilful default or fraudulent conduct is required in Madras.
In Assam, there can be no imprisonment at all.
The periods of detention vary between Bengal, U.P. and the Punjab.
Taluqdars in U.P. are completely exempt.
Are we to assume that people in Madras are more amenable and generally ready and willing to pay as compared with those in Bombay who are a tenacious lot and must be subjected to a longer process of detentive coercion? Are the Talaqdars in U.P. exempt from arrest because of possible political repercussions if such influential persons are subjected to such treatment? What is the rationale in providing different periods of detention for Bengal and the Punjab? We must be in a position to postulate some reasonable basis for the differentiation and we cannot get away from this necessity by vague references ' to the wisdom of the legislature or by indulging in pure speculation as to what might have been at the back of its mind.
Speaking broadly, for the enforcement of the levy of a central tax like the Income tax there should be uniformity of procedure and identity of consequences from non payment.
The machinery for recovery might be different between the several States but the defaulting assessees must be put on the same footing as regards the penalties.
But the law as it now stands can be supported on the grounds mentioned by my Lord and I do not propose to differ.

summary/full:
The assesses carrying on business in the City of Bombay was assessed to income tax for the years 1943 44 to 1947 48 and 1951 52 by the Income tax Officer C 1 Ward Bombay.
As the assessee did not pay the income tax due the Income tax Officer issued in April 1951 to the Additional Collector of Bombay a recovery certificate under section 46(2) of the Indian Income tax Act, 1922.
In February 1954 the Additional Collector issued a notice of demand and as no payment was made he attached the good will and tenancy rights of the assessee 's premises by a warrant of attachment dated 24th March 1954, 888 A sale was held in February 1955.
The sale proceeds not being sufficient to satisfy the assessed tax the Additional Collector issued a notice under section 13 of the Bombay City Land Revenue Act, 1876 requiring the assessee to appear before him and show cause why he should not be apprehended and confined to civil prison in satisfaction of the said certified demand.
In default of assessee 's appearance and showing cause a warrant for his arrest was issued under section 13 of the Bombay Act, II of 1876 and he was actually arrested on 1st July 1955.
An application to the Bombay High Court under article 226 of the Constitution for a writ in the nature of a writ of habeas corpus having proved unsuccessful, an application under article 32 was filed in the Supreme Court for the same relief.
Two main points urged on behalf of the assessee were: (a) that section 46(2) of the Indian Income tax Act under which the Income tax Officer issued the recovery certificate to the Additional Collector of Bombay was void, under article 13 (1) of the Constitution in that it offended article 21 and article 14 of the Constitution; (b)that section 13 of the Bombay Land Revenue Act, 1876 (Bombay Act II of 1876) under which the warrant of arrest was issued by the Additional Collector was void under article 13(1) of the Constitution as the same was repugnant to article 14 of the Constitution.
Held (as regards a) (1) that there was no violation of fundamental rights under article 21 of the Constitution inasmuch as section 13 of the Bombay Act II of 1876 under which warrant of arrest was issued for the recovery of the demand certified under section 46(2) of the Indian Income tax Act constituted a procedure established by law.
Both section 13 of Bombay Act II of 1876 and section 46 of the Indian Income tax Act under which action had been taken against the assessee were not void and therefore no question of violation of funda mental rights under article 21 could arise at all) (ii)the contention that section 46(2) of the Indian Income tax Act provides for two different and alternative methods of recovery of the dues and clothes the Collector with the unfettered and unguided power to apply either of the two methods inasmuch as it enables the Collector at his will to discriminate between two defaulters who are similarly situated and thus violates the equal protection clause of the Constitution was without force because sub section (2) of section 46 does not prescribe two different procedures.
The proviso enacted therein does not indicate a different and alternative mode of recovery of the certified amount of tax but only confers additional powers on the Collector for the better and more effective application of the only mode of recovery authorised by the body of sub section (2) of section 46 and therefore there was no question of possibility of dis crimination at all; (iii)the further contention that section 46(2) of the Indian Incometax Act violates the equal protection clause of the Constitution and has thus become void under article 14 of the Constitution as section 46(2) required the Collector,on receipt of the requisite certificate from 889 the Income tax Officer, to recover the amount specified in the certificate as if it were an arrear of the land revenue and there are different laws adopted by different States for the recovery of land revenues and thus there is discrimination on the ground that defaulters are treated differently in different States is also without force be cause discrimination complained of is a permissible classification and does not offend the fundamental right guaranteed by article 14 as the grouping of the income tax defaulters in separate categories on classes State wise is a territorial classification which is based on an intelligible differentia and there is a reasonable nexus or co relation between the basis of classification and the object sought to be achieved by the Income tax Act.
The fact that the income tax demand is a Union public demand makes no difference in the legal position.
Held, (as regards b) that the contention that section 13 of the Bombay Act II of 1876 became unconstitutional under article 13(1) of the Constitution in that the procedure prescribed by section 13 of the Bombay Act II of 1876 in respect of a defaulter residing in the City of Bombay was harsher and more drastic than the procedure laid down in section 157 of the Bombay Act V of 1879 in respect of a defaulter residing outside the City of Bombay was without force because section 13 of the Bombay Act II of 1876 was amended on 8th October 1954 and a new law laid down a law similar to the law laid down by section 157 of the Bombay Act V of 1879 and thus the vice of unconstitutionality 'if any ' was removed.
State of Punjab vs Ajaib Singh & Another ([1953] S.C.R. 254), Shaik Ali Ahmed vs Collector of Bombay (I.L.R. , Chiranjit Lal Chowdhury vs The Union of India ([1950] S.C.R. 869), Budhan Choudhry and others vs The State of Bihar ([1955] 1 S.C.R. 1045), Middleton vs Texas Power and Light Company ; , Bowman vs Lewis (101 U.S. 22; , The State of Rajasthan vs Rao Manohar Singhji ([1954] S.C.R. 996), Bhikaji Narayan Dhakras vs The State of Madhya Pradesh, Nagpur and Another ([1965] 2 S.C.R. 589) and Erimmal Ebrahim Hajee vs The Collector of Malabar ([1954] , referred to.