judgement:
No. 13347 of 1983.
(Under Article 32 of the Constitution of India).
K.K. Venugopal, C.S. Vaidyanathan and K.V. Viswana than for the Petitioner.
P.K. Goswami,Additional Solicitor General, P.S. Poti, K. Parasaran, S.S. Javalai, and F.S. Nariman, B.V. Acharya, Advocate General, P.R. Ramasesh, Ms. A. Subhashini, T.T. Kunhikanan, V. Krishnamurthy, K. Ramkumar and R. Karuppan, in person the Respondents.
86 The Judgment of the Court was delivered by RANGANATH MISRA, J.
This is an application under Article 32 of the Constitution filed by the Tamil Nadu Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala Urimal Padhugappu Sangam which is said to be a society registered under the Tamil Nadu Societies Registration Act asking this Court for direction to the Union of India, respondent No. 1, to refer the dispute relating to the water utilisation of the Cauvery river and equitable distribution thereof in terms of section 4 of the , and for a mandamus to the State of Karnataka not to proceed with the construction of dams, projects and reservoirs across the said river and/or on any of its tributaries within the State and to restore supply of water to the State of Tamil Nadu as envisaged in the agreements dated 18th of February, 1924.
To the petition States of Karnataka, Tamil Nadu and Kerala and the Union Territory of Pondicherry have been added as re spondents 2 to 5 respectively.
In the petition it has been alleged that the petition er 's society is an organisation of agriculturists of Tamil Nadu and they are entitled to the lower reparian rights of Cauvery river for cultivating their lands over the years.
The petitioner alleges that inflow into the Cauvery at the Mettur dam point as also down the stream has considerably diminished due to construction of new dams, projects and reservoirs across river Cauvery and its tributaries by the State of Karnataka within its own boundaries.
In the year 1970 the State of Tamil Nadu had requested the Union of India to set up a tribunal and refer the question of equita ble distribution of Cauvery waters under section 3 of the Act.
A suit filed under Article 131 of the Constitution by the Tamil Nadu State in this Court was withdrawn on politi cal consideration and in anticipation of the evolving of a mutual and negotiated settlement.
Petitions of the present type had also been filed in this Court being writ petitions Nos. 303 and 304 of 1971 but on 24.7.75 they were withdrawn on account of suspension of the Fundamental Rights during the period of Emergency.
Petitioner has further alleged that the sharing of the Cauvery waters between the then Madras State and the then princely State of Mysore was covered by a set of agreements reached in 1892 and 1924.
According to the petitioner several attempts were made through bilateral and multilateral talks for a negotiated settlement for equitable distribution of the Cauvery waters but no solution could be reached and the problem continued.
Since we are not on the merits of the matter relating to distribution of waters it is unnecessary to give any details of the further pleadings.
87 The State of Karnataka by filing several affidavits has opposed the maintainability of the petition as also the tenability of the plea for relief.
The Union of India in the Ministry of Water Resources has also opposed the maintain ability of the application.
Reliance has been placed on section 11 of the Act to which we shall presently made a reference.
At the hearing, Mr. Nariman on behalf of the State of Karnataka along with the Advocate General of the State and the Solicitor General appearing for the Union of India have reiterated the aforesaid stands.
The State of Tamil Nadu filed an affidavit in this Court on 6th of May, 1987, wherein it not only supported the contention of the petitioner but effectively joined the dispute by adopting the stand of the petitioner.
The State of Kerala has left the matter to the good sense of Union of India to bring about an amicable settlement.
At the hearing of the matter the Union Territory of Pondicherry was not represented though we were told that their stand was common with that of the State of Tamil Nadu.
This petition was filed on November 18, 1983; on 12.12.83 this Court directed issue of notice and as already pointed out the State of Tamil Nadu by its affidavit of 6th of May, 1987, came to the support the petitioner in toto.
The adoption by the State of Tamil Nadu of the petitioner 's stand by associating itself with the petitioner is perhaps total.
Before this Court, societies like the petitioner as also the State of Tamil Nadu and earlier applied for the same relief as the petitioner seeks.
In view of the fact that the State of Tamil Nadu has now supported the petitioner entirely and without any reservation and the Court has kept the matter before it for about 7 years, now to throw out the petition at this stage by accepting the objection raised on behalf of the State of Karnataka that a petition of a society like the petitioner for the relief indicated is not maintainable would be ignoring the actual state of affairs, would be too technical an approach and in our view would be wholly unfair and unjust.
Accordingly, we treat this petition as one in which the State of Tamil Nadu is indeed the petitioner though we have not made a formal order of transposition in the absence of a specific request.
The main stream of river Cauvery has its origin in the hills of Coorg.
Some tributaries have their origin in the State of Kerala while some having their origin in Karnataka have joined the river.
The 88 river flows for a distance of about 300 Kms.
within the State of Karnataka and almost an equal span within the State of Tamil Nadu before it ultimately joins the Bay of Bengal.
It has not been disputed that Cauvery is an inter State.
river within the meaning of Article 262 of the Constitution.
Entry 56 of List I of the Seventh Schedule to the Constitu tion runs thus: "56.
Regulation and development of inter State rivers and river valleys to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest.
" Article 262 provides: "Adjudication of disputes relating to waters of inter State rivers or river valleys (1) Parliament may by law provide for the adjudication of any dispute or complaint with re spect to the use, distribution or control of the waters of, or in, any inter State river or, river valley.
(2) Notwithstanding anything in this Constitution, Parlia ment may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause (1).
" It is not disputed before us that the (33 of 1956) is a legislation within the meaning of this Article.
Section 3 of the Act provides: "3.
If it appears to the Government of any State that a water dispute with the Government of another State has arisen or is likely to arise by reason of the fact that the interests of the State, or of any of the inhabitance there of, in the waters of an inter State river or river valley have 1Seen, or are likely to be, affected prejudicially by (a). . . . (b). . . . (c). . . . 89 the State Government may, in such form and manner as may be prescribed, request the Central Government to refer the water dispute to a tribunal for adjudication.
" Section 11 of the Act provides: "11.
Notwithstanding anything contained in any other law, neither the Supreme Court nor any other court shall have or exercise jurisdiction in respect of any water dispute which may be referred to a Tribunal under this Act.
It is thus clear that section 11 of the Act bars the juris diction of all courts including this Court to entertain adjudication of disputes which are referable to a tribunal under section 3 of the Act.
Therefore, this Court has no juris diction to enter upon the factual aspects raised in the writ petition.
No serious dispute, however, has been raised before us challenging our jurisdiction to consider the claim in the writ petition confined to the question of a reference of the dispute to a tribunal within the meaning of section 3 of the Act.
Section 4 of the Act provides: "4.
(1) When any request under section 3 is received from any State Government in respect of any water dispute and the Central Government is of opinion that the water dispute cannot be settled by negotiations, the Central Government shall, by notification in the official Gazette, constitute a Water Disputes Tribunal for the adjudication of the water dispute.
(2). . . . (3). . . .
Undoubtedly section 4 while vesting power in the Central Government for setting up a Tribunal has made it conditional upon the forming of the requisite opinion by the Central Government.
The dispute in question is one over which the people and the State of Tamil Nadu have been clamouring for more than 20 years now.
The matter has been pending in this Court for more than 6 1/2 years.
It is on record that during this period as many as 26 sittings spread over many years have been held in which the Chief Ministers of the Karnataka and Tamil Nadu have unsuccessfully tried to bring about settlement; some of 90 these have been at the instance of the Central Government in which the Union Minister for Water Resources and others have participated.
There was a time, after the dispute arose, when the Governments in the States of Karnataka and Tamil Nadu as also at the Centre were run by one common political party.
Perhaps if the Centre had intervened in an effective way during that period there was considerable chance of settle ment by negotiation.
No serious attempt seems to have been made at that time to have the dispute resolved and it has been shelved and allowed to catch up momentum and give rise to issues of sensitivity.
This case after a number of ad journments freely granted by this Court in view of the nature of the subject matter, was called on 26.2.1990 when the following order was made: "The writ petition is adjourned to 24.4.1990 for final hearing and is to be listed at the top of the board.
No further adjournment shall be granted.
The Advocate Generals of the States of Karnataka and Tamil Nadu are present in Court.
Learned Solicitor General is also present.
Counsel in W.P. No. 13347/83 in sists that the matter should not be further adjourned as several adjournments on the same plea of reconciliation between the two States have not borne any fruit.
Learned Solicitor General has told us that in course of the month of March, the Chief Ministers of the two States shall meet.
He has also told that in the month of February a meeting of Chief Ministers of Kerala, Karnataka, Tamil Nadu and Pondi cherry had been called but that could not be held on account of the air crash at Bangalore.
In these circumstances, leaving the parties to negotiate, we have decided that the matter shall now be heard on merits in the event no settle ment takes place by then.
" A long adjournment of about two months was then granted to provide a further opportunity of negotiation.
We have now been told that the two Chief Ministers met on the 19th of April, 1990, and a further meeting was stipulated to be held on the following day when the Minister of Water Resources of the Central ' Government was also to participate.
The meeting of the two Chief Ministers failed to bring about any result and the meeting stipulated for the following day for some reason or the other did not take place.
When we heard the matter on the 24th of April, 1990, the counsel for the State of Tamil 91 Nadu in clearest terms indicated that the Chief Minister of the State was not further prepared to join the negotiating table.
An affidavit along with the telex message received from Madras supporting its stand has now been made a part of the record.
26 attempts within a period of four to five years and several more adjournments by this Court to accommodate these attempts for negotiation were certainly sufficient opportu nity and time to these two States at the behest of the Centre or otherwise to negotiate the settlement.
Since these attempts have failed, it would be reasonable undoubtedly to hold that the dispute cannot be settled by negotiations.
Yet, since the requisite opinion to be formed is of the Central Government as required by s 4 of the Act when we reserved judgment on the 24th of April, 1990, we allowed two days ' time to the learned Additional Solicitor General for the Central Government to report to the Court the reaction of the Central Government.
Mr. Goswami, learned Additional Solicitor General appearing for the Union of India informed us on the 26th April, 1990, in the presence of the counsel for the other parties that the Central Government did not want to undertake any further negotiation and left the matter for disposal by the Court.
In these circumstances, we have no option but to conclude that a clear picture has emerged that settlement by negotiation cannot be arrived at and taking the developments in the matter as indicated above it must be held that the Central Government is also of that opinion particularly when the Chief Minister of Tamil Nadu has indicated that he is no more prepared to loin the nego tiations.
We are cognizant of the fact that the matter is a very sensitive one.
Judicial notice can be taken of the fact that the Government at the Centre is by one political party while the respective Governments in the two States are run by different political parties.
The dispute involved is, howev er, one which affects the southern States of Kerala, Karna taka and Tamil Nadu and the Union Territory of Pondicherry.
The disputes of this nature have the potentiality of creat ing avoidable feelings of bitterness among _the peoples of the States concerned.
The longer the disputes linger, more the bitterness.
The Central Government as the guardian of the interests of the people in all the States must, there fore, on all such occasions take prompt steps to set the Constitutional machinery in motion.
Fortunately, the Parlia ment has by enacting the law vested the Central Government with the power to resolve such disputes effectively by referring the matter to an impartial Tribunal.
There was no reason, therefore, for the dispute to protract for such a long time.
Any further delay in taking the statutorily 92 mandate action is bound to exasperate the feelings further and lead to more bitterness.
It is, therefore, necessary that the legal machinery provided by the statute is set in motion before the dispute escalates.
A stitch in time saves nine.
What is true for an individual is perhaps more true for the nation.
Section 4 indicates that on the basis of the request referred to in section 3 of the Act, if Central Government is of the opinion that the water dispute cannot be settled by negotiation, it is mandatory for the ' Central Government to constitute a Tribunal for adjudication of the dispute.
We were shown the Bill where in section 4 the word 'may ' was used.
Parliament, however, substituted that word by 'shall ' in the Act.
Once we come to the conclusion that a stage has reached when the Central Government must be held to be of the opin ion that the water dispute can no longer be settled by negotiation, it thus becomes its obligation to constitute a Tribunal and refer the dispute to it as stipulated under section 4 of the Act.
We therefore, direct the Central Government to fulfil its statutory obligation and notify in the official gazette the constitution of an appropriate tribunal for the adjudication of the water dispute referred to in earlier part of this judgment.
We further direct that the same should be done within a period of one month from today.
The writ petition is accordingly allowed.
There shall, however, be no order as to costs.
S.B. Petition allowed.

dataset_name: IN-Abs

summary/full:
The appellant is a registered society of agriculturists of Tamil Nadu, who are entitled to riparian rights of Cauv ery river in cultivating their lands over the years.
It seeks from this Court that directions be given to the Union of India Respondent No. 1 to refer the dispute relating to the water utilization of the Cauvery river and equitable distribution thereof in terms of section 4 of the Inter State Water Disputes Act 1956.
Also to issue a mandamus to the State of Karnataka not to proceed to construct dam projects, reservoirs across the said river or its tribu taries within the state and to restore supply of water to the State of Tamil Nadu as envisaged in the agreements dated 18th February, 1924.
In this petition State of Karnataka, Tamil Nadu, Kerala and Union Territory of Pondicherry have also been added as Respondent No. 2 to 5 respectively.
In the year 1970, the State of Tamil Nadu requested Union of India to set up a Tribunal for settling the ques tion of equitable distribution of waters under sec.
3 of the Act.
A suit was filed under Article 131 of the Constitution in this Court but was withdrawn on political consideration so as to evolve a mutual and negotiated settlement.
According to the petitioners it is submitted that sever al attempts were made through bilateral and multilateral talks for a negotiated settlement but no solution could be reached and the problem continued 84 The State of Karnataka filed several affidavits opposing the maintainability of the petition and the Union of India has also opposed the application on the basis of section 11 of the Act.
The petition was filed on November 18, 1983 and on 12.12.83 the Court directed issue of notice.
The State of Tamil Nadu supported and associated itself with the peti tioner seeking the same relief on 6.5.87 the State also filed an affidavit in this Court supporting the contention of the petitioner and also effectively joined the dispute by adopting the stand of the petitioner.
The mainstream of the river Cauvery has its origin in the hills of Coorg.
Some tributaries of the river have origin in the State of Kerala and others in the State of Karnataka.
The river flows for about 300 Kms.
in the State of Karnataka and almost for an equal span within the State of Tamil Nadu before joining the Bay of Bengal.
It is an inter state river as per Article 262, Entry 56 of List I of 7th Schedule of the Constitution, so the regulation and development of the said river is under the control of the Union of India and is declared by Parliament by law to be expedient in the public interest.
Article 262 of the constitution provides for adjudica tion of disputes (1) with respect to the use, distribution and control of the waters (2) Parliament may by law provide that neither the Supreme Court or any other Court shall exercise jurisdiction in respect of any such dispute as is referred to in clause (1).
As per section 3 of the Act if it appears to the Govern ment of any State that a water dispute with the Government of another State has arisen or likely to arise and the interests of the State or of any of the inhabitance, thereof are likely to be affected prejudicially, the State Govern ment in the prescribed manner request the Central Government to refer the Water dispute to a Tribunal for adjudication.
Allowing the petition, this Court, HELD: This dispute in question is one over which the people and the State of Tamil Nadu have been clamouring for more than 20 years.
The matter has been pending in this Court for the last 6 1/2 years.
It is on 85 record that over these years 26 sittings of the Chief Minis ters of Karnataka, Tamil Nadu have been there and in some of these even the Central Ministers of Water Resources have also participated but have not succeeded in bringing about negotiated settlement.
No serious attempt seems to have been made to have the dispute resolved.
This Court has given several adjournments to accommodate the attempts for negoti ations because of the nature of the subject matter.
Ulti mately on 26.2.90 order by the Court was given that the Writ Petition would be listed for final hearing on 24.4.90 since sufficient opportunity and time to these two states at the behest of the Central Government or otherwise has been given to arrive at negotiated settlement.
On 26th April 1990 the Union of India also informed the Court that Central Govern ment did not want to undertake any further negotiations and left the matter for the disposal by this Court.
[89G H; 90B C; 91D] There was no reason for the dispute to protrect for such a long period.
Any further delay in taking statutority mandated action is bound to exasperate the feelings further and lead to more bitterness.
[91H; 92A] Section 4 of the Act indicates that on the basis of the request referred to in Section 3, if Central Government is of the opinion that water dispute cannot be settled by negotiation, it is mandatory for the Central Government to constitute a Tribunal for adjudication of the dispute.
[92B] The Central Government to fulfil the statutory obliga tion notify in the official Gazette the constitution of an appropriate tribunal for the adjudication of the Water Dispute.
The same should be done within a period of one month.


judgement:
t Petition No. 869 of 1988.
(Under Article 32 of the Constitution of India.) Govind Mukhoty, Naresh Kaushik and Ms. Lalitha Kaushik for the Petitioner.
V.C. Mahajan, Girish Chandra and Ms. A. Subhashini for the Respondents.
The Judgment of the Court was delivered by SINGH, J.
This is a petition under Article 32 of the Constitution of India, filed by the petitioner Union or Behalf of the employees of the Grih Kalyan Kendra for a declaration the Girh Kalayan Kendra wherein the Workers are employed is 'State ' within the meaning of Article 12 of the Constitution and for the issuance of a writ of mandamus directing the Union of India and the respondents to pay regular pay scales in parity with other employees performing similar work under the Union of India like New Delhi Municipal Committee and other Departments of Delhi Administration.
Grih Kalyan Kendra is a Society registered under the .
Its objectives as set out in the memorandum of Association are as follows: "(a) To promote social, economic, cultural and educational activities for the betterment of the Central Government employees and their families; (b) To impart technical and vocational training in home crafts and other house hold arts for useful utilisation of leisure time; and (c) To organise and promote economic activities that may provide opportunities for gainful employment to families Central Government employees for supplementing family incomes.
" 18 For attaining the aforesaid objectives, the Kendra has been conducting various activities including; (i) holding of craft classes for training in cutting, tailoring and embroidering for the house wives and grown up girls during their leisure hours; (ii) imparting nursery education for children in the age group of 3 to 7 years; (iii) running of creches or day care centres for children between the age of 90 days and 7 years; (iv) providing the recreational facilities like T.V. shows, libraries,gymnasia and in door games and sports at the samaj sadans (Community Halls); (v) conducting stitching of liveries for Class III (Group C) and Class IV (Group D) employees of Government Departments and Public Sector Undertakings.
The Kendra runs 29 nursery centres out of which 21 are in Delhi, 3 in Dehradun and one each at Faridabad, Nagpur, Jaipur, Bombay and Madras.
It also runs 43 crafts centres out of which 23 are in Delhi, 5 in Bombay, 8 in madras, 2 in Dehradun and one each at Jaipur, Nagpur, Faridabad, Narela and Bahadurgarh.
The Kendra also runs 19 centres for day care called creches out of which 16 are in Delhi and one each at Faridabad, Madras and Jaipur.
The Kendra conducts two production centres, one located at Delhi and the other at madras.
In these centres stitching of liveries for class III and Class IV employees of Government Departments and Public Sector Undertakings are undertaken with a view to provide gainful employment for dependent ladies members of the Government servants.
The Grih Kalyan Kendra is a welfare organisation working under the aegis of the Department of Personnel and Administrative Reforms, Ministry of Home Affairs.
The purpose and object of establishing the Kendras were to help needy Government servants especially those belonging to the lower income group by providing to their dependents opportunity of gainful work or training during their leisure time.
The scheme stipulated to ensure that the dependents of such Government servants should be able to supplement to meagre income of the family and to acquire skill and experience for obtaining employment elsewhere.
Initially, the employees of Kendra were paid honorarium only and at no time they had any regular scales of pay.
Some of the employees who work at the Centres are paid on piece rate basis.
The control and management of the Kendras vest in a board which consist of officers of the Department of Personnel.
The Union of India supplements the income of the Kendras by providing grants and monetary support.
The employees of the Grih Kalyan Kendra fall in two broad categories; (i) regular staff taken on deputation from other Central Government offices who draw their salaries in regular scale of pay alongwith the deputation and other allowances as admissi 19 ble to the Central Government employees; (ii) employees employed at the various centres of the kendra on ad hoc basis some of whom have been working on fixed salary called honorarium while others are working on the piece rate wages at the production centres without there being any provision for any scale of pay and other benefits like,gratuity, pension, provident fund etc.
The terms and conditions of tenure of service have not been regulated by any Rules framed by the Kendra.
The services of the employees falling in the second category are terminable at any time at the sweet will of the officers of the Kendras.
The petitioner has asserted that the employees of the Kendra are paid low wages and their salaries are far less than what is paid to the employees doing similar nature of work in the organisations like NDMC and other Departments of the Delhi Administration.
It is asserted that the Kendra is a 'State ' within the meaning of Article 12 of the Constitution and therefore the respondents are under constitutional obligation to prescribe similar scales of pay as applicable to the employees of NDMC and Delhi Administration and who are doing the same work as performed by the employees of the Kendra.
The petitioner has claimed relief for declaring the kendra to be an instrumentality of State and for the issue of a direction directing the respondents to pay equal pay as paid to the similar employees doing similar work in NDMC and other Departments of Delhi Administration, along with other benefits like gratuity, pension and provided fund.
The petitioner 's claim for equal pay as paid to the employees of NDMC and Delhi Administration is contested by the respondents.
In the counter affidavit filed on behalf of the respondents,it is asserted that the Grih Kalyan Kendra was started as a welfare society with the aim of helping the needy Government servants especially those belonging to lower income group by providing to their dependents opportunity of gainful work, so that, they might be able to supplement the meagre income of their family and at the same time they may also gain skill and experience in order to improve their career elsewhere.
Grih Kalyan Kendra was expected to be a stepping stone for such dependents of the poor Government servants and there was no intention to provide them with any regular employment.
it is further stated that in the nature of things and in consonance with original aim the employees of the Grih Kalyan Kendra were expected to leave the organisation once they have acquired skill and experience and seek other opportunity of employment for the betterment of their career elsewhere.
The employees of the Kendra were expected to leave the organisation once they lost the status of dependent of low paid 20 Government employees.
However, the employees of the Kendra have not met any of these expectations.
Some of the employees once inducted into the organisation have continued for a number of years.
The employees working in the Kendra are not regular employees and the duties performed by them are not comparable to any of the employees working under NDMC or any Department of Delhi Administration or under the Union of India.
The status of the kendra is a unique one where the work and duties performed by its employees are quite different in nature than those performed by the employees of NDMC and Delhi Administration.
Shri Govind Mukhoty learned counsel for the petitioner contended that though the Grih Kalyan Kendras are managed by the Board as contemplated by the Rules of the Registered Societies, the Union of India have the pervasive control over its functions, it is an instrumentality and agency of the Union Government and therefore it is a State within the meaning of Article 12 of the Constitution.
He placed reliance on decisions of this Court in Ramana Dayaram Shetty vs International Airport Authority of India & Ors., ; ; P. K. Ramachandra Lyer & Ors.
vs Union Of India & Ors.
, ; ; B.S. Minhas vs Indian Statistical Institute & Ors., ; ; Bihar State Harijan Kalyan Parishad vs Union of India & Ors., ; and Surya Narain Yadav & Ors.
vs Bihar State Electricity Board & Ors., ; WE do not think it necessary to consider this question in detail as in our opinion given on an assumption that the Grih Kalyan Kendra is an instrumentality of a State within the meaning of Article 12 of the Constitution and the petitioners are entitled to enforce their fundamental rights against it, it is difficult to uphold this contention that the respondents have violated any of the fundamental rights of the petitioners.
We accordingly proceed on the assumption that the Grih Kalyan kendra is a State for the purposes of Chapter IV of the Constitution and consequently this petition under Article 32 of the Constitution is maintainable and the petitioners are entitled to invoke the jurisdiction of the Court for the enforcement of their fundamental right founded on the principle of equal pay for equal work.
Equal pay for equal work is not expressly declared by the Constitution as a fundamental right but in view of the Directive Principles of State Policy as contained in Article 39(d) of the Constitution "Equal pay for equal work" has assumed the status of fundamental right in service jurisprudence having regard to the constitutional mandate of equality in Articles 14 and 16 of the Constitution.
Equal pay for equal 21 work and providing security for service by regularising causal employment within a reasonable period has been accepted by this Court as a constitutional goal to our socialistic pattern.
It has ceased to be a judge made law as it is the part of the constitutional philosophy which ensures a welfare socialistic pattern of a State providing equal opportunity to all and equal pay for equal work for similarly placed employees of the State.
This Court has zealously enforced the fundamental right to equal pay for equal work in effectuating the constitutional goal of equality and social justice in a number of decisions.
See: Randhir Singh vs Union of Ind, ; ; Daily Rated Casual Labour Employed under P & T Department vs Union of India, ; Dhirendra Chamoli V. State of U.P., ; Surinder Singh vs Engineer in Chief CPWD, ; R.D. Gupta vs Lt.
Governor Delhi Administration, ; Bhagwan Dass vs State of Haryana, [1987] 4 SCC 634; Jaipal vs State of Haryana, [1988] 3 SCC 354 and Dharwad District P.W.D. Literate Daily Wage Employees Association & Ors.
vs State of Karnataka & Ors.
, ; Therefore, the principle of equal pay for equal work even in an establishment which is an instrumentality of a State is applicable to its full vigour.
The question then arises whether the respondents have practised discrimination in denying the employees of the kendra pay which the Union of India has been paying to other similarly placed employees doing the same or similar work.
This question is of primary importance which requires investigation of facts.
Unless, it is demonstrated that the employees of the Grih Kalyan Kendra are discriminated in matters relating to pay and other emoluments with the other similarly placed employees, the principle of equal pay for equal work cannot be applied.
While considering this question, it is not necessary to find out similarity by mathematical formula but there must be a reasonable similarity in the nature of work, performance of duties, the qualification and the quality of work performed by them.
It is permissible to have classification in services based on hierarchy of posts, pay scale, value of work and responsibility and experience.
The classification must, however, have a reasonable relation to the object sought to be achieved.
In Federation of All India Customs and Central Excise Stenographers vs Union of India, ; Sabyasachi Mukharji, J. (as he then was) observed: "There may be qualitative difference as regards reliability and responsibility.
Functions may be the same but the responsibilities make a difference.
One cannot deny that 22 often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service.
So long as such value judgment is made bona fide, reasonable or an intelligible criteria which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination.
It is important to emphasise that equal pay for equal work if a concomitant of Article 14 of the Constitution.
But it follows naturally that equal pay for unequal work will be a negation of that right.
" Elaborating the aforesaid observation the learned Judge further observed thus: "The same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less it varies from nature and culture of employment.
The problem about equal pay cannot always be translated into a mathematical formula.
If it has a rational nexus with the object to be sought for, as reiterated before a certain amount of value judgment of the administrative authorities who are charged with fixing the pay scale has to be left with them and it cannot be interfered with by the court unless it is demonstrated that either it is irrational or based on no basis or arrived mala fide either in law or in fact.
" The petitioners have referred to the scale of pay paid to the similar employees of NDMC and Delhi Development Authority under the Delhi Administration for the various employees to demonstrate that the employees of the Kendra are being discriminated as they are paid lower amount of salary although they perform the same duties and functions as performed by corresponding employees holding corresponding posts under the NDMC and Delhi Administration.
The chart as set out in the petition is as under: _________________________________________________________________ section No. Designation GKK Salaries per month NDMC DDA/C.Govt.
____________________________________________________________________ 1.
Incharge Creche 788 1139 1380 2.
Creche Attendants 758 1139 1139 3.
Creche Ayahs 592 792 792 4.
Craft Teachers 786 1260 1444 5.
Nursery Teachers 712 1260 1260 6.
Nursery Ayahs 430 792 792 7.
Office Incharge of Crech Centre etc. 1140 8.
Office Asstt./Typist 880 1140 9.
i) Cutters (Tailors) 1140 ii) Stitchers (Checker)870 1140 iii) Drivers 565 1140 iv) Peons 1140 v) Chowkidars 750 792 10.
Sweepers 225 In 1984 the employees filed Writ Petition No. 13924 of 1984 in this Court claiming relief for the payment of wages on the principle of equal pay for equal work, seeking parity with the employees of NDMC and other Departments of Delhi Administration and Union of India.
Since, the matter involved investigations of facts, this Court with a view to find out as to which other employees similarly situated were paid more than the employees working in the Kendra and also to ascertain whether the principle of equal pay for equal work was being violated by the kendra, on the suggestion of the parties referred the matter to Former Chief Justice Shri Y.V. Chandrachud, for his report and recommendation.
The Court requested the Former Chief Justice make recommendations taking into account the following matters: "1.
Whether other similarly situated employees (engaged in similar comparable work, putting in comparable hours of work, in a comparable employment) are paid higher pay and if so what should be the entitlement of the complaining employees in order not to violate the equal pay for equal work principle; 2.
If there is no other comparable employment, whether the remuneration of the complaining employees deserves 24 to be revised on the ground that their remuneration is unconscionable or unfair and if so to what extent.
The organisation is not disabled form continuing its benign motivity and even extending it.
" Pursuant to the directions of the Court, the parties including the petitioners appeared before the Former Chief Justice.
After hearing the parties and considering the entire material placed before him, the Former Chief Justice submitted and elaborate report to the Court making comprehensive suggestions.
The respondents to the writ petition agreed to implement the recommendations made by the Former Chief Justice.
Thereupon the writ petition was disposed of by an order dated 6 th May 1988 stating that the employees of the Kendra are entitled to the benefits recommended in the Report of the Former Chief Justice.
In order to appreciate the controversy, we consider it necessary to refer to the concluding part of the Report which contains the recommendations, it is as follows: "Having given a careful thought to these unusual considerations, I am of the opinion that until such time as the Government formulates a new scheme for giving an orderly shape to the Kendra so that, by the application of a rational policy the remuneration of the Kendra employees could be fixed on a fair basis, an ad hoc method of stepping up their meagre honorarium should be adopted, linked to the length of service put in by the employees.
No other test seems feasible since, especially, the Kendra employees are not prohibited from taking any other employment, they are not recruited through an open competition, there is no age bar for their recruitment or retirement and since, being dependents of Government servants, they are eligible in that capacity for receiving other benefits like free medical aid and leave travel concessions.
In view of these circumstances, to place the Kendra employees on par with other employees would be treating unequals as equals which would conceivably draw a constitutional challenge.
For the foregoing reasons, I recommend that the employees of the Kendra belonging to category (b) described earlier in this Report should be paid a fixed monthly honorarium according to the following scale: 25 1.
Employees who have put in a service of 20 years of more should be paid 100% (one hundred per cent ) more of the honorarium which is paid to them at present.
Employees who have put in a service of 15 to 20 years should be paid 90% (ninety per cent) more of the honorarium which is paid to them at present.
Employees who have put in a service of 10 to 15 years should be paid 80% (eighty per cent) more of the honorarium which is paid to them at present.
Employees who have put in a service of 5 to 10 years should be paid 70% (seventy per cent) more of the honorarium which is paid to them at present.
Employees who have put in a service of 1 to 5 years should be paid 60% (sixty per cent) more of the honoratium which is paid to them at present.
These recommendation should operate retrospectively with effect from 1st August 1986, being the date on which the Supreme Court passed its order referring the matter to me.
The delay in making these recommendations is not due to any default on the part of the employees.
The employees of the Kendra of the (b) category should be paid arrears of honorarium upon the revised basis, before 31st October, 1987.
" The Court accepted the Report of the Former Chief Justice and disposed of the petition on a statement made on behalf of the respondents that they would implement the recommendations made in the Report of the Former Chief Justice.
There is no dispute that the recommendations made by the Former Chief Justice have been implemented and the employees of the Kendra are being paid remuneration accordingly.
The Former Chief Justice 's recommendation for ad hoc method of stepping up of honorarium until such time as the Government formulates a new scheme for giving orderly shape of the Kendra has been accepted by the respondents and a Sub Committee has been set up by the Grih Kalyan Kendra Board to review the organisational and operational arrangements in the Kendra at the headquarters and in the cities and to suggest measures for the improvement of its functioning.
The Committee has been directed 26 with reference to the original objectives of Kendra of imparting skills to a steady stream of dependents of Government employees and to make suggestions for making further improvements.
The Committee has not yet submitted its report.
We hope and trust that the Committee will submit its report and the Girh Kalyan Kendra will take steps to improve the functioning of the Kendras including the remuneration of its employees.
In the instant writ petition the petitioners have raised precisely the same question as raised in the earlier Writ Petition 13924 of 1984.
Their grievance of discrimination in matters relating to payment of scale of pay and other emoluments was examined in the earlier writ petition and the Former Chief Justice held that there was no employment comparable to the employment held under the Grih Kalyan Kendra and therefore they could not seek parity with other employees working under NDMC or the Delhi Administration or Union of India.
We consider it necessary to refer to the relevant part of the Report of the Former Chief Justice, which is as under: "The first consideration which I am required by the Supreme Court to take into account is "whether other similarly situated employees (engaged in similar comparable work, putting in comparable hours of work, in a comparable employment) are paid a higher pay and as to what should be the entitlement of the complaining employees in order not to violate the equal pay for equal work principle.
" The facts and the statistical data set out above will show that the employment in the Kendra is unique in character, that is to say, it is not comparable with any other employment.
Its motivation and genesis coupled with the absence of rules governing service conditions elude even a broad comparison between the employees of the Kendra and the employees of other organisations holding somewhat similar post, that is, posts bearing similar duties and designation.
It is difficult to conceive of any other service which one can enter at any age, regardless of educational qualifications, and from which one can retire when one chooses.
It is something like "come if you like, go when you please".
Since there is no other employment which can bear a reasonable comparison with employment in the service of the Kendra, it is difficult to perceive employees similarly situated as those in the service of the Kendra.
27 Therefore, the fact that those other employees may be drawing higher pay will not justify the conclusion that the employees of the Kendra of Category(b), with whom alone we are concerned are denied the benefit of the principle "Equal pay for equal work".
It is trite that the concept of equality implies and requires equal treatment for those who are situated equally.
One cannot draw comparisons between unequals.
If the facts of a given case fail to establish that persons who are aggrieved are not situated equally with others, the benefits available to those others cannot ipso facto be given to the former though, of course, the question as to whether persons are situated equally has to be determined by the application of broad and reasonable tests and not by the application of a mathematical formula of exactitude.
Try howsoever as one may be applying broad and reasonable criteria, the conclusion is inescapable that there are no other employment comparable to the employment in the (b) category of the Kendra, that means that the aggrieved employees are not situated similarly as any others.
This then in my answer to the first question referred by the Supreme Court for my consideration.
Putting it briefly, there being no other Government or semi Government employees who can be regarded, even broadly, as being situated similarly as the employees of the Kendra with whom we are concerned, the principle of equal pay for equal work cannot be said to be violated by the payment of mere honorarium to these employees.
" The above findings recorded by the Former Chief Justice are findings of facts founded on the material placed before him by the parties.
These findings were accepted by this Court and the Writ petition was accordingly disposed of by an order dated 6th May 1988.
Now it is not open to the petitioner to reopen the same question by means of the present writ petition.
In the Supplementary affidavit filed on behalf of the petitioner an attempt was made to dispute the findings recorded by the Former Chief Justice but in fairness, Shri Govind Mukhoty made a candid statement before us during the course of the arguments that the findings of the Former Chief Justice are not disputed.
The findings recorded by the Former Chief Justice clearly show that there has been no discrimination as the petitioners are not being discriminated from those who are situated equally.
The petitioners ' claim 28 for the benefit of equal pay for equal work, therefore must fail.
Since the petitioner 's claim for parity in pay with regard to the employees working in the New Delhi Municipal Committee and other Departments of the Delhi Administration and Union of India has failed, their claim for the issue of direction to the respondents to provide for the pension, gratuity and provident fund for the employees of the Grih Kalyan Kendra must also fail.
In the result the petition fails and is accordingly dismissed.
There will be no order as to costs.
Y.Lal Petition dismissed.

summary/full:
Grih Kalyan Kendra is a Society registered under the Societies Registration Act 1960.
It is a welfare organization working under the aegis of the Department of Personnel and Administrative Reforms, Ministry of Home Affairs.
Its object is to establish Kendras to help needy Government servants especially those belonging to the lower income group by providing to their dependents opportunity of gainful work and training during their leisure time so that the dependents of such Government servants may be able to supplement to the meagre income of the family and to acquire skill and experience for obtaining employment elsewhere.
In furtherance of this object, the kendra has set up nursery centres, craft centres, and creches etc.
In Delhi and other cities where the work of imparting necessary training is carried on.
The management of the Kalayan Kendras vests in the Board which consists of officers of the Department of Personnel and in order to augment its resources the Ministry gives grant to the kendras.
The terms and conditions or tenure of service of its employees have not been regulated by any Rules framed by the kendra.
The staff of the Kendras fall in two categories viz. (i) regular staff taken on deputation from other central government offices who draw their salaries in regular scales of pay with the deputation and other allowances as admissible to the central government employees and (ii) employees employed at the various centres of the kendra on ad hoc basis, some of whom have been working an fixed salary called honorarium while others are working on the piece rate wages, without any gratuity or pension or Provident fund.
The Workers ' Union of the Kendra has filed this writ petition for a declaration that the kendra wherein the workers are employed is a 'State ' within the meaning of Article 12 of the Constitution and such it is prayed by them that a writ of mandamus be issued directing the respondents to pay regular pay scale on par with other employees 16 performing similar work under the Union of India, New Delhi Municipal Committee and other Departments of the Delhi Administration, as according to them wages paid to them are low as compared to the employees performing identical duties in the said Departments.
Their contention is that the Kendra being a 'State ', the respodents are under constitutional obligation to pay them higher scale of pay prescribed for the Government Departments, on the principle "equal pay for equal work".
They have raised claim to pension, gratuity and provident fund etc.
The respondents contest their claim on the plea that the employees working in the kendra are not regular employees and the duties performed by them are not comparable to any of the employees working under NDMC or any other DEPARTMENT OF THE Delhi Administration or Union of India, the Status of the Kendra being unique.
Dismissing the writ petition the Court, HELD: There being no other Government or semi Government employees who can be regarded, even broadly, as being situated similarly as the employees of the Kendra, the principle of equal pay for equal work cannot be said to be violated by the payment of mere honorarium to these employees.
[27E] The findings recorded by the former Chief Justice to whom the matter was referred earlier clearly shows that there has been no discrimination as the petitioners are not being discriminated from those who are situated equally.
The petitioner 's claim for the benefit of equal pay for equal work, therefore must fail.
Their claim for the issue of direction to the respondents to provide for the pension, gratuity and provident fund for the employees of the Grih Kalyan must also fail.
[27H; 28A B] Ramana Dayaram Shetty vs International Airport Authority of India and ors.
; , ; P.K. Ramachandra lyer & Ors.
vs Union of India and Ors.
, ; ; B.S. Minhas vs
Indian Statistical Institute and Ors., ; ; Bihar State Harijan Kalyan Parishad vs Union of india and ors.
; , ; Surya Narain Yadav & Ors.
vs Bihar State Electricity Board and Others, ; ; Randhir Singh vs Union of India, ; ; Daily Rated Casual Labour Employed under P Dhirendra Chamoli vs State of U.P.,[1986] 1 SCC 637, Engineer in Chief, CPWD R.D. Gupta vs Lt. Governor, Delhi Administration, ; ; Bhagwan Dass vs
State of 17 Haryana, [1987] 4 SCC 634; Jaipal vs State of Haryana, [1988] 3 SCC 354; Dharwad District P.W.D. Literate Daily Wage Employees Association and Ors.
vs State of karnataka and Others; , ; Federation Of all India Customs and Central Excise Stenographers vs Union of India, [19890 3 SCC 1, referred to.


judgement:
etition (C) No. 381 of 1998.
8 (Under Article 32 of the Constitution of India).
S.K. Sinha for the Petitioner.
D. Goburdhan, Ms. A. Subhashini, K.K. Lahiri, Ms. Lira Goswami and D.N. Misra for the Respondents.
The Judgement of the Court was delivered by SINGH,J. We heard the arguments in detail on 13.12.
1990 and dismissed the petition with costs amounting to Rs. 5,000 with the direction that the reasons shall be delivered later on.
We are, accordingly, delivering our reasons.
This petition is under Article 32 of the Constitution by Subhash Kumar for the issue of a writ or direction directing the director of Collieries, West Bokaro Collieries at Ghatotand, District Hazaribagh in the State of Bihar and the Tata from & Steel Co. Ltd. to stop forthwith discharge of slurry/sludge from its washeries at Ghatotand in the District of Hazaribagh into Bokaro river.
This petition is by way of public interest litigation for preventing the pollution of the Bokaro river water from the sludge/slurry discharged form the washeries of the Tata Iron & Steel Co. Ltd. The petitioner has alleged that the Parliament has enacted the (hereinafter referred to as `the Act ') providing for the prevention and control of water pollution and the maintaining or restoring of wholesomeness of water, for the establishment of Board for the prevention and control of water pollution.
Under the provisions of the Act the State Pollution Control Board constituted to carry out functions prescribed under Section 17 of the Act which among other things provide that the Board shall inspect sewage or trade effluents and plants for the treatment of sewage and trade effluents and to review plans, specifications or other data set up for the treatment of water and to lay down standards to be complied with by the persons while causing discharge of sewage or sullage.
Section 24 of the Act provides that no person shall knowingly cause or permit any poisonous, noxious or polluting matter to enter into any stream or well, which may lead to a substantial aggravation of pollution.
The petitioner has asserted that Tata Iron and Steel Co respondent No.5 carries on mining operation in coal mines/washeries in the town of Jamshedpur.
These coal mines and collieries are known as West Bokaro Collieries and the Collieries have two coal washeries where the coal after its extraction from the mines is brought and broken into graded pieces and there 9 after it is processed for the purpose of reducing its ash contents.
A chemical process is carried out which is known as `froth floatation process '.
Under this process the graded coal is mixed with diesel oil, pine oil and many other chemical ingredients and thereafter it is washed with the lacs of gallons of water.
The end water is washed coal with reduced quantity of ash content fit for high graded metallurgical process for the purposes of manufacture of steel.
In the process of washing large quantity of water is discharged through pipes which carry the discharged water to storage ponds constructed for the purpose of retaining the slurry.
Along with the discharged water, small particles of coal are carried away to the pond where the coal particles settle down on the surface of the pond, and the same is collected after the pond is de watered.
The coal particles which are carried away by the water is called the slurry which is ash free, it contains fine quality of coal which is used as fuel.
The petitioner has alleged that the surplus waste in the form of sludge/slurry is discharged as an effluent from the washeries into the Bokaro river which gets deposited in the bed of the river and it also gets settled on land including the petitioner 's land bearing Plot No.170.
He was further alleged that the sludge or slurry which gets deposited on the agricultural land, is absorbed by the land leaving on the top a fine carbonaceous product or film on the soil, which adversely affects the fertility of the land.
The petitioner has further alleged that the effluent in the shape of slurry is flown into the Bokaro river which is carried out by the river water to the distant places polluting the river water as a result of which the river water is not fit for drinking purposes nor it is fit for irrigation purposes.
The continuous discharge of slurry in heavy quantity by the Tata Iron & Steel Co. from its washeries posing risks to the health of people living in the surrounding areas and as a result of such discharge the problem of pure drinking water has became acute.
The petitioner has asserted that inspite of several representations, the State of Bihar and State Pollution Control Board have failed to take any action against the Company instead they have permitted the pollution of the river water.
He has further averred that the State of Bihar instead of taking any action against the Company has been granting leases on payment of royalty to various persons for the collection of slurry.
He has, accordingly, claimed relief for issue of direction directing the respondents which include the State of Bihar, the Bihar Pollution Control Board, Union of India and Tata Iron & Steel Co. to take immediate steps prohibiting the pollution of Bokaro river water from the discharge of slurry into the Bokaro river and to take further action under provisions of the Act against the Tata Iron & Steel Co. 10 The respondents have contested the petition and counter affidavits have been filed on behalf of the respondent Nos. 2, 4 and 5 State of Bihar, State Pollution Board, Directors of Collieries and Tata Iron & Steel Co. Ltd. In the counter affidavits filed on behalf of the respondents, the petitioner 's main allegation that the sludge/slurry is being discharged into the river Bokaro causing pollution to the water and the land and that the Bihar State Pollution Board has not taken steps to prevent the same is denied.
In the counter affidavit filed on behalf of the Bihar State Pollution Board it is asserted that the Tata Iron & Steel Co. operates open case and underground mining.
The Company in accordance to Sections 25 and 26 of the Water (Prevention Control of Pollution) Act, 1974 applied for sanction from the Board of discharge their effluent from their outlets.
The Board before granting sanction analysed their effluent which was being watched constantly and monitored to see that the discharges does not affect the water quality of the Bokaro river adversely.
In order to prevent the pollution the Board issued direction to the Director of the Collieries to take effective steps for improving the quality of the effluent going into the Bokaro river.
The State Pollution Board imposed conditions requiring the Company to construct two settling tanks for settlement of solids and rewashing the same.
The Board directed for the regular samples being taken and tested for suspended solids and for the communication of the results of the tests to the Board each month.
The State Board has asserted that the Company has constructed four ponds ensuring more storing capacity of effluent.
The Pollution Board has been monitoring the effluent.
It is further stated that on the receipt of the notice of the instant writ petition the Board carried out an inspection of the settling tanks regarding the treatment of the effluent from the washeries on 20th June, 1988.
On inspection it was found that all the four settling tanks had already been completed and work for further strengthening of the embankment of the tanks was in progress, and there was no discharge of effluent from the washeries into river Bokaro except that there was negligible seepage from the embankment.
It is further stated that the Board considered all the aspects and for further improvement it directed the management of the collieries for removal of the settle slurry from the tanks.
The Board has directed that the washeries shall perform desludging of the settling tanks at regular intervals to achieve the proper required retention time for the separation of solids and to achieve discharge of effluents within the standards prescribed by the Board.
It is further asserted that at present there is no discharge from any of the tanks of the Bokaro river and there is no question of pollution of the river water of affecting the fertility of land.
In their affidavits files on behalf of the respondent 11 Nos. 4 and 5, they have also denied the allegations made in the petition.
They have asserted that the effective steps have been taken to prevent the flow of the water discharge from the washeries into the river Bokaro.
it is stated that infact river Bokaro remains dry during 9 months in a year and the question of pollution of water by discharge of slurry into the river does not arise.
However, the management of the washeries have constructed from different ponds to store the slurry.
The slurry which settles in the pounds is collected for sale.
The slurry contains highly carbonaceous materials and it is considered very valuable for the purpose of fuel as the ash contents are almost nil in the coal particles found in the slurry.
Since, it has high market value, the Company would not like it to go in the river water.
The Company has taken effective steps to ascertain that no slurry escapes from its ponds at the slurry is highly valuable.
The Company has been following the directions issued by the State Pollution Control Board constituted under the 1974 Act.
On the facts as appearing from the pleadings and the specific averments contained in the counter affidavit filed on behalf of the State Pollution Control Board of Bihar, prima facie we do not find any good reason to accept the petitioner 's allegation that the water of the river Bokaro is being polluted by the discharged of sludge or slurry into it from the washeries of the respondent company.
On the other hand we find that the State Pollution Control Board has taken effective steps to check the pollution.
We do not consider it necessary to delve into greater detail as the present petition does not appear to have been filed in public interest instead the petition has been made by the petitioner in his own interest.
On a perusal of the counter affidavit filed on behalf of the respondent Nos. 4 and 5 it appears that the petitioner has been purchasing slurry from the respondent Nos. 4 and 5 for the last several years.
With the passage of time he wanted more and more slurry, but the respondent company refused to accept his request.
The petitioner is an influential businessman, he had obtained a licence for coal trading, he tried to put pressure through various sources on the respondent company for supplying him more quantity of slurry but when the Company refused to succumb to the pressure, he started harassing the Company.
He removed the Company 's slurry in an unauthorised manner for which a Criminal Case No., 173 of 1987 under Sections 379 and 411 of the Indian Penal Code read with Section 7 of the Essential Commodities Act was registered against the petitioner and Pradip Kumar his brother at Police Station Mandu, which is pending before 12 the Sub Judge, Hazaribagh.
One Shri Jugal Kishore Jayaswal also filed a criminal complaint under Section 379 and 411 of the IPC against the petitioner and his brother Pradip Kumar in the Court of Judicial Magistrate, First Class, Hazaribagh, which is also pending before the Court of Judicial Magistrate, 2nd Class Hazaribagh.
The petitioner initiated several proceedings before the High Court of Patna under Article 226 of the constitution for permitting him to collect slurry from the Raiyati land.
These petitions were dismissed on the ground of existence of dispute relating to the title of the land.
The petitioner filed a writ petition C.W.J.C. No. 887 of 199o in the High Court of Patna for taking action against the Deputy Commissioner, Hazaribagh for implementing the Full Bench judgment of the Patna High Court in Kundori Labours Cooperative Society Ltd. & etc.
vs State of Bihar & Ors.
, AIR 1986 Patna 242 wherein it was held that the slurry was neither coal nor mineral instead it was an industrial waste of coal mine, not subject to the provisions of the Mines and Mineral (Regulation and Development) Act, 1957.
Consequently the collection of slurry which escaped from the washeries could be settled by the State Government with any person without obtaining the sanction of the Central Government.
The petitioner has been contending before the High Court that the slurry which was discharged from washeries did not belong to the Company and he was entitled to collect the same.
Since the respondent company prevented the petitioner from collecting slurry from its land and as it further refused to sell any additional quantity of slurry to him, he entertained grudge against the respondent company.
In order to feed fat his personal grudge he has taken several proceedings against the respondent company including the present proceedings.
These facts are quite apparent from the pleadings of the parties and the documents placed before the Court.
Infact,there is intrinsic evidence in the petition itself that the primary purpose of filling this petition is not to serve any public interest instead it is in self interest as would be clear from the prayer made by the petitioner in the interim stay application.
The petitioner claim interim relief from this Court permitting him to arrest/collect sludge/slurry flowing out of the washeries of the respondent Nos. 4 and 5 and with a direction to the State of Bihar, its officers and other authorities for not preventing him from collecting the sludge/slurry and transporting the same.
The prayer for the interim relief made by the petitioner clearly indicates that he is interested in collecting the slurry and transporting the same for the purposes of his business.
As already state a Full Bench of the Patna High Court held that the slurry was not coal and the provisions of the Mines and Mineral (Regulation and Development) Act, 1957 were not applicable, the State Government was tree to settle the same 13 and the Tata Steel & Iron Co. had no right to collect the slurry which escaped from its washeries.
The respondent company filed an appeal before this Court.
During the pendency of the aforesaid appeal, the petitioner filed the present petition.
The appeal preferred by the Tata Iron & Steel Co. Ltd. and Bharat Coking Coal Ltd. was allowed by this Court and judgment of Patna High Court was set aside.
The judgment of this Court is reported in Judgments today Vol. 3 wherein it has been held that the slurry/coal deposited on any and continues to be coal and the State Government has no authority in law to deal with the same and the slurry deposited on the Company 's land belongs to the Company and no other person had authority to collect the same.
Article 32 is designed for the enforcement of Fundamental Rights of a citizen by the Apex Court.
It provides for an extraordinary procedure to safeguard the Fundamental Rights of a citizen.
Right to live is a fundamental right under Art 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life.
If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Art, 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life.
A petition under article 32 for the prevention of pollution is maintainable at the instance of affected persons or even by a group of social workers or journalists.
But recourse to preceeding under article 32 of the Constitution should be taken by a person genuinely interested in the protection of society on behalf of the community.
Public interest litigation cannot be invoked by a person or body or person to satisfy his or its personal grudge and enmity.
if such petitions under Article 32, are entertained it would amount to abuse of process of the Court, preventing speedy remedy to other genuine petitioner from this Court.
Personal interest cannot be enforced through the process of this Court under article 32 of the Constitution in the garb of a public interest litigation.
Public interest litigation contemplates legal proceeding for vindication or enforcement of fundamental rights of a group of persons or community which are not able to enforce their fundamental rights on account of their incapacity, poverty or ignorance of law.
A person invoking the jurisdiction of this Court under article 32 must approach this Court for the vindication of the fundamental rights of affected persons and not for the purpose of vindication of his personal grudge or enmity.
It is duty of this Court to discourage such petitions and to ensure that the course of justice is not obstructed or polluted by unscrupulous litigants by invoking the extraordinary jurisdiction of this Court for personal matters under the garb 14 of the public interest litigation see Bandhua Mukti Morcha vs Union of India, ; ; Pandey vs State of West Bengal, ; at 331; Ramsharan Autyanuprasi & Anr. vs Union of India & Ors., [1989] Suppl.
1 SCC 251 and Chhetriya Pardushan Mukti Sangharsh Samiti vs State of U.P. & Ors., [1990] 4 SCC 449.
In view of the above discussion we are of the opinion that this petition has been filed not in any public interest but for the petitioner 's personal interest and for these reasons we dismissed the same and directed that the petitioner shall pay Rs. 5,000 as costs.
These costs are to be paid to the respondent Nos. 3,4 & 5.

summary/full:
The petitioner filed a writ petition in this court by way of public interest litigation alleging that the respondents, West Bokaro Collieries and Tata Iron and Steel Company (TISCO) were polluting the river Bokaro by discharging surplus waste in the form of sludge/slurry as effluent from their washeries into river making the river water unfit for drinking and irrigation purposes thereby causing risk to the health of the people; the State of Bihar and the State Pollution Control Board have failed to take appropriate steps for prevention of the pollution and instead the State of Bihar has granted leases on payment of royalty to various persons for collection of slurry.
Accordingly the petitioner prayed for directions to the respondents to take immediate steps prohibiting the pollution of the river and to take legal action against TISCO under the .
The petitioner also claimed interim relief from this Court that he should be permitted to collect sludge/slurry flowing out of washeries of the respondents.
6 The respondents contested the petition denying the petitioner 's allegations.
Bihar State Pollution Board asserted that directions have been issued to the Bokaro Collieries to take effective steps for improving the quality of the effluent going into the river Bokaro and that the TISCO Company has been granted permission to discharge their effluents from their outlets in accordance with sections 25 and 26 of the 1974 Act.
On behalf of TISCO and the Bokaro Collieries it was contended that all effective steps have been taken to prevent the pollution and they have complied with the instructions of the State Pollution Board.
By an order dated 13.12.1990, this Court dismissed the writ petition with costs.
Giving reasons for dismissal of the petition, this Court, HELD: 1.
Article 32 is designed for the enforcement of Fundamental Rights of a citizen by the Apex Court.
It provides for an extra ordinary remedy to safeguard the fundamental rights of a citizen.
Right to life is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life.
If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Article 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life.
A petition under Article 32 for the prevention of pollution is maintainable at the instance of affected persons or even by a group of social workers or journalists.
But recourse to proceeding under Article 32 of the Constitution should be taken by person genuinely interested in the protection of society on behalf of the community.
Public interest litigation cannot be invoked by a person or body of persons to satisfy his or its personal grudge and enmity.
If such petitions under Article 32 are entertained it would amount to abuse of process of the Court, preventing speedy remedy to other genuine petitioners from this Court.
Personal interest cannot be enforced through the process of this Court under Article 32 of the Constitution in the garb of a public interest litigation.
Public interest litigation contemplates legal proceeding for vindication or enforcement of fundamental rights of a group of persons or community which are not able to enforce their fundamental rights on account of their incapacity, poverty or ignorance of law.
A person invoking the jurisdiction of this Curt under Article 32 must approach this Court for the vindication of the fundamental rights of affected persons and not for the purpose of vindication of his personal grudge or enmity.
It is duty of this Court to 7 discourage such petitions and to ensure that the course of justice is not obstructed or polluted by unscrupulous litigants by invoking the extra ordinary jurisdiction of this Court for personal matters under the garb of the public interest litigation.
[13C H; 14A] Bandhua Mukti Morcha vs Union of India, ; ; Sachindanand Pandey vs State of West Begal, ; ; Ramsharan Autyanuprasi & Anr.
vs Union of India & Ors.
, [1989] Suppl.
1 SCC 251; Chetriya Pardushan Mukti Sangharsh Samiti vs State of U.P. & Ors., [1990] 4 SCC 449, referred to. 2.
The present petition is not filed in public interest instead the petition has been made by the petitioner in his own interest.
Infact there is intrinsic evidence in the petition itself that the primary purpose of filing this petition is not to serve any public interest instead it is in self interest.
The petitioner has been purchasing slurry from the respondents for the last several years.
With the passage of time he wanted more and more slurry but the Company refused to accept his request.
He removed the Company 's slurry in an unauthorised manner for which criminal cases are pending against him and his brother.
Since the respondent company refused to sell additional slurry he entertained a grudge against the company and in order to feed fat his personal grudge he resorted to several proceedings against the company including the present one.
The prayer for the interim relief made by the petitioner i.e. permitting him to arrest/collect sludge/slurry flowing out of the washeries of the respondents with a direction to the State of Bihar, its officers and other authorities for not preventing him from collecting the sludge/slurry and transporting the same also collecting the sludge/slurry and transporting the same clearly indicates that he is interested in collecting the slurry and transporting the same for the purposes of his business.
Therefore, there is no good reason to accept the petitioner 's allegation that the water of the river Bokaro is being polluted by the discharge of sludge or slurry into it form the washeries of the respondent company.
On the other hand it is evident from records that the State Pollution Control Board has taken effective steps to check the pollution.
[14B;12F G] Kundori Labours Cooperative Society Ltd. & etc.
vs State of Bihar & Ors.
, AIR 1986 Patna 242; Bharat Cokin Coal Ltd. vs State of Bihar & Ors. ; Judgments Today, vol.
3, , referred to.


judgement:
utory Application No. 1 of 1989.
IN W.P. No. 16093 of 1984 etc.
(Under Article 32 of the Constitution of India).
S.M. Jain, S.K. Jain, Ms. Pratibha Jain and Pradeep Agarwal for the petitioner.
Arun Jaitly, Additional Solicitor General, Kailash Vasdev and Ms. A. Subhashini for the Respondent.
The following order of the Court was delivered: Petitioner was a member of the Rajasthan Judicial Service and was elevated as a Judge of the Rajasthan High Court on July 1, 1975.
He was transferred to the Delhi High Court from where he retired on July 21, 1984.
A dispute relating to his pension became the subject matter of a writ petition before this Court and was disposed of on April 9, 1985 This Court fixed his pension at Rs. 21,500 per annum.
In the meantime, certain changes in the High Court Judges (Conditions of Service) Act,1954, were brought about, firstly, by Central Act 38/86 and again by Central Act 20/88.
Petitioner applied to this Court in Civil Miscellaneous Petition No. 18044/88 asking for benefits under the Amending Act.
This Court by its decision on August 18, 1988, refixed petitioner 's pension at Rs. 41,600 per annum with effect from January 1, 1986, and at Rs. 46,100 per annum with effect from November 1,1986, keeping the two amendments referred to above in view ; In paragraph 19 of this Court 's order, it was stated: "We refrain from expressing any opinion as to the effect of lifting of the ceiling on the special additional pension at Rs. 8,000 per annum placed by clause (b) of paragraph 2 of Part III of the First Schedule.
The question really does not arise for our consideration at the moment and is left open.
" 100 The petitioner has now applied to this Court challenging the ceiling on additional pension appearing in clause (b) of paragraph 2 of Part III of the first Schedule to the of 1954.
The First Schedule Deals with pension of Judges.
Judges in High Court are recruited from three sources: (a) from the Bar; (b) Members belonging to the former Indian Civil Service; and (c) Officers of the State Judicial Service.
In this case we are concerned with as petitioner had been elevated as a Judge of High Court from the Rajasthan State Judicial Service.
In respect of such a Judge the pension payable is prescribed to be: "(a) the pension to which he is entitled under the ordinary rules of his service if he had not been appointed a Judge, his service as a Judge being treated as service therein for the purpose of calculating that pension; and (b) a special additional pension or Rs.1,600 per annum in respect of each completed year of service for pension,but in no case such additional pension together with the additional or special pension, if any, to which he is entitled under the ordinary rule of his service exceed Rs.8,000 per annum.
Provided that the pension under clause (a) and additional pension under clause (b) together shall in no case exceed Rs.54,000 per annum in the case of a Chief Justice and Rs. 48,000 per annum in case of any other Judge.
" Since this Court had fixed the pension at Rs. 46,100 and petitioner 's claim for being put at par with other Judges by fixing his pension at Rs. 48,000 per annum had not been accepted, petitioner has approached this Court challenging the ceiling of Rs. 8,000.
According to the petitioner, he had put in nine years of completed service as a Judge and on the basis of the provision for special additional pension of Rs. 1,600 per annum in respect of each completed year of service for pension he was entitled to Rs.14,400 but the limit in the proviso would have the effect of fixing ceiling at Rs. 48,000 per annum.
There was no justification to introduce a further ceiling of Rs. 8,000 per annum irrespective of the years of completed service rendered and allow a discrimination to operate.
Once the proviso has a limit which meets the purpose there is no basis for the further limit of Rs. 8,000 as contained in paragraph (2) above.
The counter affidavit filed on behalf of the Ministry of Law and Justice sought to justify the limit by referring to cases of Central Civil Service Officers retiring as Secretaries to Government where full credit was not being given for the entire period of service rendered and aceiling was fixed.
Such a ceiling actually is fixed in respect of all the three situations covered by the First Schedule.
A Member of the Bar with 14 years of completed service out of which six years are served as a Chief Justice or as a Judge of the Supreme Court gets the maximum pension of Rs. 54,000 and in the event of his retirement without becoming Chief Justice or a Judge of the Supreme Court, his pension entitlement is Rs. 48,000 per annum.
Similar is the provision relating to the members of the Indian Civil Service who were earlier elevated as Judges.
It is the contention of the petitioner that once a ceiling limit was fixed as contained in the proviso of the Third Part, there was no further justification for the Paragraph 2(b) ceiling.
We find full force in the submission.
The reasons which weighed with this Court on the earlier occasion for enhancing the petitioner 's pension fully apply to the present aspect.
The ceiling of Rs. 8,000, therefore, is not necessary to be imposed and if that is applied, a situation giving rise to the application of article 14 of the Constitution does arise.
In fact, the presence of the proviso clearly brings out the intention that no ******** sought to be made between Judges recruited from the different sources for the matter of the ceiling on pension.
We, therefore, modify the order of this Court fixing petitioner 's pension at Rs. 46,100 and require his pension to be fixed at Rs. 48,000 per annum by holding that the ceiling in paragraph 2(b) of Part III of the First Schedule is unsustainable under article 14 of the Constitution and would not be operative.
We direct that petitioner 's pension from November 1, 1986, shall be fixed at Rs. 48,000 a year.
We would make it clear that as we have held that paragraph 2(b) is ultra vires, it will follow that all cases to which the present situation applied should be revised by the Union of India without requiring representations or applications from the retired Judges concerned.
There would be no order as to costs.
V.P.R. Petition allowed.

summary/full:
Petitioner was a member of the state Judicial Service and was elevated as a Judge of the High Court on 1.7.1975, and was later transferred to another High Court where he retire on 21.7.1984.
A dispute relating to pension was disposed of by this Court on 9.4.1985 fixing it at Rs.21,500 per annum.
Meanwhile, the High Court Judges (Conditions of Services) Act,1954 was amended by Central Acts 38/86 and 20/88, and he applied under the said Amending Acts asking for benefits there under, and this Court refixed the petitioner 's pension at Rs.41,600 per annum w.e.f 1.1.1986 and at Rs. 46,100 per annum w.e.f. 1.11.1986.
In an interlocutory petition the petitioner challenged the ceiling on additional pension appearing in clause (h) of paragraph 2 of Part III of the First Schedule to the .
Allowing the petition, this Court, HELD: 1.
There was no justification to introduce a further ceiling of Rs.8,000 per annum irrespective of the years of completed service rendered and allow a discrimination operate.
Once the proviso has a limit which meets the purpose there is no basis for the further limit of Rs 8,000.
[101A} 2.
The ceiling of Rs. 8,000 is not necessary to be imposed and if that is applied, a situation giving rise to the application of Article 14 of the Constitution does arise.
[101E] 3.
Fixing the pension at Rs. 48,000 per annum held that the ceiling in paragraph 2(b) of Part III of the First Schedule is unsustainable under Article 14 of the Constitution and would not be operative.
[101F]


judgement:
: Criminal Appeal No. 37 of 1991.
From the Judgment and Order dated 7.3.
1989 of the Kerala High Court in Crl.
Appeal No. 321 of 1986.
P.S Poti and T.T. Kunhikannan for the Appellants.
T.S Krishnamoorthy lyer and N. Sudhakaran for the Respondents.
The Judgment of the Court was delivered by VERMA, J.
The respondents were found guilty by the trial Court for contravention of para 21 read with para 18 of the Drugs (Prices Control) Order, 1979 (hereinafter referred to as 'the Order") issued under Section 3 of the (hereinafter referred to as 'the Act ') and accordingly convicted under Section 7 of the Act.
Respondent No. 1 firm was sentenced to a fine of Rs.2,000 while respondents 2 and 3 who were the managing partner and pharmacist of the firm were sentenced to three months simple imprisonment.
The High Court of Kerala at Ernakulam (hereinafter referred to as 'the High Court ') allowed their appeal against the con 67 viction and sentence and acquitted all of them.
Hence, this special leave petition against their acquittal.
Leave granted.
The allegation on which the prosecution of the respondents was based is that they collected Rs. 90 in excess of the maximum retail price fixed for the sale of 15 tablets of Largactil of 100 mg each and 60p.
in excess for 100 tablets of Hipnotex of 5 mg each from one Sepastian Joseph, a Nursing Assistant in the Medical College Hospital, Kottayam, on 4.2.1985.
It is alleged that recovery of the amount in excess of the maximum retail price fixed for the sale of these medicines under the drugs (Prices Control) Order, 1979 was a contravention of the provisions contained therein which is punishable under Section 7 of the .
The trial Court rejected the several defences raised by the respondents and found them guilty of contravention of para 18 read with para 21 of the Order which is an offence punishable under Section 7 of the .
The respondents were accordingly convicted and sentenced as aforesaid.
As earlier stated, the respondents ' appeal to the High Court has succeeded and they have all been acquitted.
The High Court has taken th view that on these allegations, contravention of para 18 of the Order is not made out.
The High Court has summarised its conclusion as under: "The upshot of the above discussion is that Largactil and Hipnotex Chlorpromazine and nitrazepam are only bulk drugs and not formulation.
The appellants, none of whom is a manufacturer or distributor, cannot be convicted for contravention of paragraph 18 of the Order.
(The position is seemingly different in the Order of 1987 because paragraph 18 of the Order of 1987 contains inhibition against sale of bulk drugs also).
In the result, I allow this appeal and set aside the conviction and sentence.
The appellants are acquitted and are directed to be set at liberty.
The real question for decision in the present case is the correctness of the construction made by the High Court of the provisions of the 'Order '.
Shri P.S. Poti, learned counsel for the appellants contended that the grievance in this appeal is really to the construction 68 made by the High Court of the provisions of the 'Order ' which is affecting a large number of similar matters are not to the outcome of individual matter before us.
Learned Counsel contended that the appellants are not much interested in assailing the acquittal in the present individual matter, but the correct construction of the provisions of the Order is necessary for future guidance.
In our opinion, it is necessary to examine the provisions of the 'Order. ' and to indicate their correct meaning in view of the general importance thereof.
The Order was made by the Central Government in exercise of the powers conferred by Section 3 of the .
Para 2 of the order contains the definitions, some of which may be referred.
Clause (a) of para 2 defines 'bulk drug ' to mean any substance. . 'which is used as such, or as an ingredient in any formulations '.
'Dealer ' is defined in clause(b) to mean a person carrying on the business of purchase or sale of drugs, whether as a wholesaler or retailer and includes an agent of a dealer. 'Drug ' is defined in clause (d) to include 'bulk drugs and formulations '.
Clause (f) defines 'formulation ' to mean a medicine processed out of, or containing 'one or more bulk drugs or drug '.
Clause (q) defines 'price list ' to mean a price list referred to in this Order.
Clause (r) defines 'retail price ' to mean the retail price of a drug arrived at or fixed in accordance with the provisions of this Order.
The other clauses of Para 2 contain other definitions including the definitions of 'retailer ' and 'wholesaler.
It is not necessary to refer to them in detail.
Para 3 contains the power to fix the maximum sale price of indigenosly manufactured bulk drugs specified in First or Second Schedule of the Order.
Para 19 requires every manufacturer or importer of a formulation to furnish to the dealers, State Drug Controllers and the Government, a price list showing the price at which the formulation is sold to a retailer and every dealer is required to display the price list at a conspicuous part of his business premises.
Part 20 required every manufacturer, importer or distributor of a formulation to display on label of the container the maximum retail price of that formulation.
Paras 18, 21 and 22, the construction of which is in dispute, read as under: "18.
Certain provisions of this Order to apply to formulations not included in Category I, Category II or Category III of Third Schedule.
The provision of this Order, other than those contained in paragraphs 10 to 14 (both inclusive), shall apply, to any formulation not specified in Category I, Category II or Category III of the Third Schedule." 69 :21.
Control of sale prices of formulations specified in Third Schedule.
No retailer shall sell any formulations specified in any of the categories in the Third Schedule to any person at a price exceeding the price specified in the current price list or the price indicated on the label of the container or pack thereof whichever is less plus the local taxes, if any, payable.
Explanation.
For the purposes of this paragraph, "local taxes" include sales tax and octroi actually paid by the retailer under any law in force in a particular area." "22.
Sale of split quantities of formulations.
No dealer shall sell loose quantity of any formulation drawn from a bottle pack of such formulation at a price which exceeds the pro rate price of the formulation plus 5 per cent thereof.
provided that nothing in this behalf shall apply to any formulation compounded at the premises of the dealer.
" The view taken by the High Court is that the two formulations, namely, Largactil and Hipnotex, the sale of which at an excess price is alleged to be the contravention of the Order, not being formulations specified in any of the categories in the Third Schedule to the Order, the prohibition contained in para 21 of the Order has no application.
On this basis, the view taken is that the sale of these two formulations in excess of the retail price fixed for their sale is not a contravention of any provision of the Order to attract the punishment provided under Section 7 of the .
It has also been held by the High Court that none of these two medicines is a formulation as defined in clause (f) of para 2 of the Order but merely a bulk drug, which fact also excludes the application of para 21 of the Order.
It appears that this position was not seriously contested even by the learned public prosecutor in the Courts below.
In our opinion, such a view results from a mis reading of the material provisions of the Order.
The definition of 'bulk drug ' given in clause (a) of para 2 shows that it means any substance 'which is used as such ' or 'as an ingredient in any formulations '.
Thus a bulk drug is one which may be capable of use by itself or as an ingredient in any formulation.
Drug is defined in clause (d) of para 2 to include 'bulk drugs ' and 'formulations '.
Clause 70 (f) then defines `formulation ' to mean any medicine processed out of or containing one or more bulk drugs or drug.
Thus formulation is a medicine which may comprise even of one bulk drug by itself or more than one bulk drug.
The definition of 'formulation ' is thus very wide and includes even one bulk drug where that one bulk drug by itself is treated as a medicine.
It is difficult to uphold the view that the two medicines, namely, Largactil and Hipnotex, do not fall within the definition of 'formulation ' contained in clause (f) of para 2 of the Order.
One of the two difficulties pointed out by the High Court in applying para 21 of the Order to the present case is clearly out of the way.
The only surviving question now is whether para 21 of the Order is rendered inapplicable merely because none of these formulations is specified in any of the categories in the Third Schedule to the Order.
In other words: is the High Court correct in taking the view that notwithstanding the fixation of the maximum retail price of these formulations in accordance with the provisions of the Drugs (Prices Control) Order, 1979, there is no provision made therein to prohibit their sale at an amount in excess of the maximum retail price fixed under the Order to attract the punishment provided in Section 7 of the ? In our opinion, it is not so.
There is no controversy that by an amendment made in 1987 to which we shall refer later, the matter has been placed beyond the scope of any argument.
However, even prior to that amendment, the matter is clear by the express provision contained in para 18 as it existed even then.
Para 18 clearly says that the provisions of this Order 'other than those contained in paragraphs 10 to 14 (both inclusive) ' shall apply to any formulations not specified in Category I, Category II or Category III of the Third Schedule.
It is plain that the provisions of the Order except paragraphs 10 to 14 which have been expressly excluded, are specifically made applicable to formulations which are not specified in the Third Schedule.
It is, therefore, clear that the provisions of para 21 which in terms are meant to control sale prices of formulations specified in the Third Schedule as also the other provisions of the Order which in terms may be of limited application are specifically made applicable to all formulations as defined in the Order except only paragraphs 10 14 which have been expressly excluded.
It is by virtue of para 18 that the prohibition contained in para 21 has been made applicable to formations not specified in the Third Schedule.
This is also the logical view to take.
The contrary view would lead to the conclusion that inspite of the price fixation made for the formula 71 tions not specified in the Third Schedule, there is no prohibition made against its sale for an amount in excess thereof with the result that the price fixation would be an exercise in futility.
The Drugs (Prices Control) Order, 1987, which has replaced the Drugs (Prices Control) Order, 1979, contains paras 18 and 21 differently worded to show clearly that such an argument is now not even available under the 1987 Order.
We are clearly of the opinion that the High Court misconstrued the provisions of the Drugs (Prices Control) Order, 1979, to take the view that none of the aforesaid two medicines, namely, Largactil and Hipnotex are 'formulations ' as defined in Section 2(f) of the Drugs (Prices Control) Order, 1979; and that the sale of these two medicines for an amount in excess of the maximum retail price fixed is not punishable under para 21 read with para 18 of the Order.
The only question now is of the order we should make in this matter.
Shri T.S. Krishnamurthy lyer, learned counsel for the respondents very fairly stated that the construction we have made of the several provisions of the 1979 Order including paras 18 and 21 thereof cannot be seriously disputed.
However, he contended that the respondents had raised several defences none of which has been considered by the High Court since it acquitted the respondents only on the construction it made of these provisions.
He, therefore, argued that setting aside the High Court 's order should not automatically lead to restoration of conviction and sentence made by the trial court since other defences raised by the respondents remain for consideration.
He suggested that in view of the lapse of several years from the date of the alleged offence and the peculiar facts of this case, we may merely set aside the High Court 's order but not restore the conviction and sentence of the respondents.
He pointed out that the customer to whom the medicines are alleged to have been sold at an excess price is himself a member of the nursing staff of a hospital and it is unreasonable to take the view that he would pay Rs. 99 for 15 tablets of Largactil against its retail price of Rs. 9 only, particularly when he had been purchasing these drugs for a long time.
We find merit in the contention of learned counsel for the respondents and we are inclined to adopt the course suggested by him in the light of peculiar facts of this case.
In our opinion, it would be inappropriate after the lapse of several years to send back the case to the High Court for the deciding the remaining defences raised by the respondents which would further prolong conclusion of the trial.
It is also clear that without rejecting the other defences, it is not possible to uphold the conviction and sentence 72 awarded by the trial court.
In such a situation, the course suggested by Shri T.S. Krishnamurthy lyer, particularly in view of the stand taken by Shri P.S. Poti on behalf of the appellants, that the appellants are more keen to know the correct meaning of the provisions of the Order, appears to be the proper course to adopt in the present case.
Consequently, we reject the High Court 's construction of the provisions of the 'Order ' and hold that allegations in the present case, if proved, would amount to a contravention of para 21 read with para 18 of the Drugs (Prices Control) Order, 1979, which is punishable under Section 7 of the .
However, for the reasons already given, we do not interfere with the acquittal of the respondents.
The appeal is disposed of accordingly.
Y.L. Lal Appeal allowed partly.

summary/full:
Respondent No. 1 is a firm dealing in medicines and respondents 2 and 3 are its managing parnter and pharmacist.
In contravention of the provisions of Drugs (Price Control) Order 1979, para 21 read with para 18 they charged from a Nursing Assitant of the Medical College Hospital, Kottayam, Rs. 90 in excess of the maximum retail price fixed for the sale of 15 tablets of Largactil of 100 mg each and 60p in excess for 100 tablets of Hipnotex of 5mg each.
According to the prosecution this act of their 's being in contravention of the provisions of the Order, was punishable under Section 7 of the and accordingly prosecution was initiated against the respondents.
The trial court found the respondents guilty and convicted them and sentenced respondent No. 1 firm to a fine of Rs. 2.000 and respondents 2 and 3 to three months simple imprisonment.
On appeal, the High Court of Kerala acquitted them taking the view that none of the aforesaid two medicines, namely Largactil and Hipnotex were 'formulations ' as defined in Section 2(f) of the Drugs (Price Control) Order 1979 and as such the sale of these drugs at higher rates than the prescribed was not punishable under paras 21 read with para 18 of the order.
The appellants have thus filed this appeal after obtaining special leave.
The question for decision in the present case relates to the correctness of the construction made by the High Court of the provisions of the 'Order '.
Partly allowing the appeal, this Court, HELD: A bulk drug is one which may be capable of use by itself or as an ingredient in any formulation.
[69G] Formulation is a medicine which may comprise even of one bulk 66 drug by itself or more than one bulk drug.
The definition of 'Formulation ' is very wide and includes even one bulk drug where that one bulk drug by itself is treated as a medicine.
[70B] The provisions of para 21 which in terms are meant to control sale prices of formulations specified in the Third Schedule as also the other provisions of the Order which in terms may be of limited application are specifically made applicable to all formulations as defined in the Order except only paragraphs 10 to 14 which have been expressly excluded.
It is by virtue of para 18 that the prohibition contained in para 21 has been made applicable to formulations not specified in the Third Schedule.
[70G H] The High Court misconstrued the provisions of the Drugs (Price Control) Order 1979.
The Court rejected that construction and held that the allegations in the present case, if proved, would amount to a contravention of para 21 read with para 18 of the 'Order ' which is punishable under Section 7 of the .
The Court however did not interfere with the acquittal of the respondents.
[72B C]