judgement:
N: Criminal Appeal No. 234 of 1976.
Appeal by special leave from the judgment and order dated the 5th December, 1975 of the Andhra Pradesh High Court in Criminal Revision Case No. 816 of 1974 (Criminal Revision Petition No. 732 of 1974).
AND Criminal Appeal Nos. 315 and 316 of 1976.
Appeals by special leave from the judgment and order dated the 12th April, 1976 of the Andhra Pradesh High Court in Criminal Appeal Nos.
31 O & 311 of 1975.
P. Govindan Nair and A. Subba Rao for the Appellant in Crl.
A. No. 234/76.
M. N. Phadke, and B. Kanta Rao for the Appellant in Crl.
A. Nos.315 & 316 of 1976.
G. N. Rao for the Respondent in all the appeals.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
What is the effect of the declaration by the Supreme Court that the appointment of an Additional Sessions Judge was invalid on judgments pronounced by the Judge prior to such declaration is the question for consideration in these criminal appeals.
The question may seem to be short and simple but it cannot be answered without enquiry and research.
An answer, on first impression, may be 'a judgment by a judge who is not a judge is no judgment ' ' a simple, sophisticated answer.
But it appears 477 second thoughts are necessary.
What is to happen to titles settled, declarations made, rules issued, injunctions and decrees granted and even executed ? What is to happen to sentences imposed ? Are convicted offenders to be set at liberty and to be tried again '! Are acquitted accused to be arrested and tried again ? Public Policy is clearly involved.
And, in the tangled web of human affairs, law must recognise some consequences as relevant, not on grounds of pure logic but for reasons of practical necessity.
To clear the confusion and settle the chaos, judges have invented the de facto doctrine, which we shall presently examine.
de facto doctrine is thus a doctrine of necessity and public policy.
A. No. 234 of 1976 arises out of a proceeding under S.6A of the Essential Commodities Act, by which the District Revenue officer West Godavari, Andhra Pradesh, ordered the confiscation of Rs. 203.74 kgs.
Of paddy and Rs. 302.25 kgs. of rice.
The appellant, Gokaraju Rangaraju, preferred an appeal under section 6C of the Essential Commodities Act to the Court of Session, West Godavari.
The appeal was heard by Shri G. Anjappa, Additional Sessions Judge and was rejected.
The appellant preferred a Criminal Revision Petition before the High Court of Andhra Pradesh.
Criminal Appeal Nos. 315 and 316 of 1976 arise out of Sessions Case No. 12 of 1975 in the Court of Session, Guntur Division ' The case was heard and the judgment was pronounced by Shri Raman Raj Saxena, II Additional Sessions Judge, Guntur.
The convicted accused preferred appeals to the High Court of Andhra Pradesh.
By the time the Criminal Revision case filed by Gokaraju Rangaraju and the Criminal Appeals filed by the appellants in Crl.
Appeals Nos. 315 and 316 of 1976 came up for hearing before the High Court of Andhra Pradesh, this Court by its judgment dated 2nd September 1975 quashed the appointment of Shri G. Anjappa, Shri Raman Raj Saxena and two others as District Judges Grade II, on the ground that their appointment was in violation of the provisions of article 233 of the Constitution.
Thereupon a point was raised in the Criminal Revision case as well as in the Criminal Appeals that the judgments rendered by Shri Anjappa and Shri Raman Raj Saxena were void and required to be set aside.
The High Court overruled the point raised by the present appellants and held that though the appointment of Shri Anjappa and Shri Raman Raj Saxena as District Judges Gr.
II was invalid, yet they were not mere usurpers but had held office under lawful H authority and therefore, the judgments rendered by them were valid and could not be questioned in collateral proceedings.
The present 478 appeals have been preferred by special leave granted by this Court.
In Criminal Appeals Nos. 315 and 316 of 1976, however, the special leave granted by this Court was limited by the order granting leave to the question whether the judgments rendered by Sessions Judges were void where their appointment as Sessions Judges was subsequently declared illegal.
Shri Govindan Nayar learned counsel for the appellants in Crl.
A. No. 234 of 1976 and Shri Phadke, learned counsel for the appellants in Crl.
Appeals Nos. 315 & 316 of 1976, argued before us that the judgments rendered by Shri Anjappa and Shri Raman Raj Saxena were void as they were never duly appointed as District Judges.
It was urged that there was no need for them to question the appointment of Shri Anjappa or Shri Kaman Raj Saxena as their appointment had already been quashed by the Supreme Court.
It was said that the de facto doctrine was based on public policy and necessity and that in the present case neither public policy or necessity required that the judgments should not be set aside.
No inconvenience would be caused by ordering a rehearing of the appeals or a retrial of the accused.
It was also urged that the attack, if any, on the appointment of Shri Anjappa and Shri Raman Raj was not collateral attack.
It was submitted that a question of jurisdiction could be raised at any stage in a criminal case and a trial by a Sessions Judge who was appointed in violation of article 233 was not a trial by a Sessions Judge duly appointed to exercise jurisdiction in a Court of Session under section 9 of the Code of Criminal Procedure.
It was argued that the de facto doctrine was not an absolute doctrine.
It was subject to certain limitations.
One such limitation was that imposed by article 233 of the Constitution.
A person appointed as a District Judge contrary to the provisions of article 233 was no judge and his judgments were no judgments.
It was submitted that the 20th Amendment of the Constitution would be a surplusage if the de facto doctrine was to be applied to judgments rendered by persons appointed as District Judges contrary to the provisions of article 233 of the Constitution.
It was also suggested that the Fundamental Right of the appellants under article 21 of the Constitution was violated as their liberty was being taken away otherwise than in accordance with the procedure established by law.
We are unable to agree with the submissions of the learned counsel for the appellants.
The doctrine is now well established that "the acts of the officers de facto performed by them within the scope of their assumed official authority, in the interest of the public 479 or third persons and not for their own benefit, are generally as valid and binding, as if they were the acts of officers de jure" (Pulin Behari vs King Emperor).
As one of us had occasion to point out earlier "the doctrine is founded on good sense, sound policy and practical expedience.
It is aimed at the prevention of public and private mischief and the protection of public and private interest.
It avoids endless confusion and needless chaos.
An illegal appointment may be set aside and a proper appointment may be made, but the acts of those who hold office de facto are not so easily undone and may have lasting repercussions and confusing sequels if attempted to be undone.
Hence the de facto doctrine" (vide Immedisetti Ramkriashnaiah Sons vs State of Andhra Pradesh and Anr.
In Pulin Behari vs King Emperor, (Supra) Sir Ashutosh Mukerjee J. noticed that in England the de facto doctrine was recognised from the earliest times.
The first of the reported cases where the doctrine received judicial recognition was the case of Abbe of Fountaine decided in 1431.
Sir Ashutosh Mookerjee noticed that even by 1431 the de facto doctrine appeared to be quite well known and, after 1431, the doctrine was again and again reiterated by English Judges.
In Milward vs Thatcher, Buller J. said: "The question whether the judges below be properly judges or not.
can never be determined, it is sufficient if they be judges de facto.
Suppose a person were even criminally convicted in a Court of Record, and the Recorder of such Court were not duly elected, the conviction would still be good in law, he being the judge de facto".
In Seaddling vs Lorant, the question arose whether a rate for the relief of the poor was rendered invalid by the circumstance that some of the vestry men who made it were vestry men de facto and not de jure.
The Lord Chancellor observed as follows: With regard to the competency of the vestry men, who were vestry men de facto, but not vestry men de jure, to make the rate, your Lordships will see at once the impor 480 tance of that objection, when you consider how many public officers and persons there are who were charged with very important duties, and whose title to the office on the part of the public cannot be ascertained at the time.
You will at once see to what it would lead if the validity of their acts, when in such office, depended upon the propriety of their election.
It might tend, if doubts were cast upon them, to consequences of the most destructive kind.
It would create uncertainty with respect to the obedience to public officers and it might also lead to persons, instead of resorting to ordinary legal remedies to set right anything done by the officers, taking the law into their own hands".
Some interesting observations were made by the Court of Appeal in England in re James (An Insolvent).
Though the learned Judges constituting the Court of Appeal differed on the principal question that arose before them namely whether "the High Court of Rhodesia" was a British Court, there did not appear to be any difference of opinion on the question of the effect of the invalidity of the appointment of a judge on the judgments pronounced by him.
Lord Denning M. R., characteristically, said: "He sits in the seat of a judge.
He wears the robes of a judge.
He holds the office of a judge.
May be he was not validly appointed.
But, still, he holds the office.
It is the office that matters, not the incumbent . . so long as the man holds the office and exercises it duly and in accordance with law, his orders are not a nullity.
If they are erroneous they may be upset on appeal.
But if not erroneous they should be upheld".
Lord Denning then proceeded to refer to the State of Connecticut vs Carroll decided by the Supreme Court of Connecticut, Re Aldridge decided by the Court of Appeal in New Zealand and Norton vs Shelby County decided by the United States Supreme Court.
Observations made in the last case were extracted and they were: "Where an office exists under the law, it matters not how the appointment of the incumbent is made, so far as the validity of his acts are concerned.
It is enough that he is clothed with the insignia of the office, and exercises its powers and functions.
The official acts of such persons are recognised as valid on grounds of public policy, and for the protection of those having official business to transact." 481 Scarman LJ who differed from Lord Denning on the question whether the High Court of Rhodesia was a British Court appeared to approve the view of Lord Denning M. R. in regard to the de facto doctrine.
He said: "He (Lord Denning) invokes the doctrine of recognition of the de facto judge, and the doctrine of implied mandate or necessity.
I agree with much of the thinking that lies behind his judgment.
I do think that in an appropriate case our courts will recognise the validity of judicial acts, even though they be the acts of a judge not lawfully appointed or derive their authority from an unlawful government.
But it is a fallacy to conclude that, because in certain circumstances our Courts would recognise as valid the judicial acts of an unlawful court or a de facto judge, therefore, the Court thus recognised is a British Court".
The de facto doctrine has received judicial recognition in the United States of America also.
In State vs Gardner (Cases on Constitutional Law by Mc.
Gonvey and Howard Third Edition 102) the question arose whether the offer of a bribe to a City Commissioner whose appointment was unconstitutional was an offence.
Broadbury, J. said.
"We think that principle of public policy, declared by the English Courts three centuries ago, which gave validity to the official acts of persons who intruded themselves into an office to which they had not been legally appointed, is as applicable to the conditions now presented as they were to the conditions that then confronted the English Judiciary.
We are not required to find a name by which officers are to be known, who have acted under a statute that has subsequently been declared unconstitutional, though we think such officers might aptly be called de facto officers.
" In Norton vs Shelby Country, Field, J., observed as follows: "The doctrine which gives validity to acts of officers de facto whatever defects there may be in the legality of their appointment or election is founded upon considerations of policy and necessity, for the protection of the pub 482 lic and individuals whose interests may be affected thereby.
Offices are created for the benefit of the public, and private parties are not permitted to inquire into the title of persons clothed with the evidence of such offices and in apparent possession of their powers and functions.
For the good order and peace of society their authority is to be respected and obeyed until in some regular mode prescribed by law their title is investigated and determined.
It is manifest that endless confusion would result, if in every proceeding before such officers their title could be called in question.
" In Cooley 's 'Constitutional Limitations ', Eighth Edition, Volume II p. 1 355, it is said, "An officer de facto is one who by some colour or right is in possession of an office and for the time being performs its duties with public acquiescence, though having no right in fact.
His colour of right may come from an election or appointment made by some officer or body having colourable but no actual right to make it; or made in such disregard of legal requirements as to be ineffectual in law; or made to fill the place of an officer illegally re moved or made in favour of a party not having the legal qualifications; or it may come from public acquiescence in the qualifications; or it may come from public acquiescence in the officer holding without performing the precedent conditions, or holding over under claim of right after his legal right has been terminated; or possibly from public acquiescence alone when accompanied by such circumstances of official reputation as are calculated to induce people, without inquiry, to submit to or invoke official action on the supposition that the person claiming the office is what he assumes to be.
An intruder is one who attempts to perform the duties of an office without authority of law, and without the support of public acquiescence.
No one is under obligation to recognise or respect the acts of an intruder, and for all legal purposes they are absolutely void.
But for the sake of order and regularity, and to prevent confusion in the conduct of public business and in security of private rights, the acts of officers de facto are not suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for 483 the purpose by the State or by some one claiming the office de jure, or except when the person himself attempts to build up some right, or claim some privilege or emolument, by reason of being the officer which he claims to be.
In all other cases the acts of an officer de facto are as valid and effectual, while he is suffered to retain the office, as though he were an officer by right, and the same legal consequences will flow from them for the protection of the public and of third parties.
There is an important principle, which finds concise expression in the legal maxim that the acts of officers de facto cannot be questioned collaterally.
" In Black on judgments it is said: "A person may be entitled to his designation although he is not a true and rightful incumbent of the office, yet he is no mere usurper but holds it under colour of lawful authority.
And there can be no question that judgments rendered and other acts performed by such a person who is ineligible to a judgeship but who has nevertheless been duly appointed, and who exercises the power and duties of the office is a de facto judge, and his acts are valid until he is properly removed.
" The de facto doctrine has been recognised by Indian Courts also.
In Pulin Behari vs King Emperor, Sir Ashutosh Mookerjee, J after tracing the history of the doctrine in England observed as follows: "The substance of the matter is that the de facto doctrine was introduced into the law as a matter of policy and necessity, to protect the interest of the public and the individual where these interests were involved in the official acts of persons exercising the duties of an office without being lawful officers.
The doctrine in fact is necessary to maintain the supremacy of the law and to preserve peace and order in the community at large.
Indeed, if any individual or body of individuals were permitted, at his or their pleasure, to collaterally challenge the authority of and to refuse obedience to the Government of the State and the numerous functionaries through whom it exercised its various 484 powers on the ground of irregular existence or defective title, insubordination and disorder of the worst kind would be encouraged.
For the good order and peace of society, their authority must be upheld until in some regular mode their title is directly investigated and determined.
" In P. section Menon vs State of Kerala and Ors. a Full Bench of the Kerala High Court consisting of P. Govindan Nair, K.K. Mathew and T.S. Krishnamoorthy Iyer, JJ said about the de facto doctrine: "This doctrine was engrafted as a matter of policy and necessity to protect the interest of the public and individual involved in the official acts of persons exercising the duty of an officer without actually being one in strict point of law.
But although these officers are not officers de jure they are by virtue of the particular circumstances, officers, in fact, whose acts, public policy requires should be considered valid".
In the judgment under appeal Kuppuswami and Muktadar, JJ observed: "Logically speaking if a person who has no authority to do so functions as a judge and disposes of a case the judgment rendered by him ought to be considered as void and illegal, but in view of the considerable inconvenience which would be caused to the public in holding as void judgments rendered by judges and other public officers whose title to the office may be found to be defective at a later date.
Courts in a number of countries have, from ancient times evolved a principle of law that under certain conditions, the acts of a judge or officer not legally competent may acquire validity".
A judge, de facto, therefore, is one who is not a mere intruder or usurper but one who holds office, under colour of lawful authority, though his appointment is defective and may later be found to be defective.
Whatever be the defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a Judge de 485 jure.
Such is the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief.
There is yet another rule also based on public policy.
The defective appointment of a de facto judge may be questioned directly in a proceeding to which he be a party but it cannot be permitted to be questioned in a litigation between two private litigants, a litigation which is of no concern or consequence to the judge except as a judge.
Two litigants litigating their private titles cannot be permitted to bring in issue and litigate upon the title of a judge to his office.
Otherwise so soon as a judge pronounces a judgment a litigation may be commenced for a declaration that the judgment is void because the judge is no judge.
A judge 's title to his office cannot be brought into jeopardy in that fashion.
Hence the rule against collateral attack on validity of judicial appointments.
To question a judge 's appointment in an appeal against the judgment is, of course, such a collateral attack.
We do not agree with the submission of the learned counsel that the de facto doctrine is subject to the limitation that the defect in the title of the judge to the office should not be one traceable to the violation of a constitutional provision.
The contravention of a constitutional provision may invalidate an appointment but we are not concerned with that.
We are concerned with the effect of the invalidation upon the acts done by the judge whose appointment has been invalidated.
The de facto doctrine saves such Acts.
The de facto doctrine is not a stranger to the Constitution or to the Parliament and the Legislatures of the States.
article 71(2) of the Constitution provides that acts done by the President or Vice President of India in the exercise and performance of the powers and duties of his office shall not be invalidated by reason of the election of a person as President or Vice President being declared void.
So also Sec.
107(2) of the Representation of the People Act 1951 (Act 43 of 1951) provides that acts and proceedings in which a person has participated as a Member of Parliament or a Member of the Legislature of a State shall not be invalidated by reason of the election of such person being declared to be void.
There are innumerable other Parliamentary and State Legislative enactments which are replete with such provisions.
The Twentieth Amendment of the Constitution is an instance where the de facto doctrine was applied by the Constituent body to remove any suspicion or taint of illegality, or invalidity that may be argued to have attached itself to judgment, decrees sentences or orders passed or made by certain District Judges appointed before 1966, otherwise than in accordance with the provision of article 233 and Art 235 of 486 the Constitution.
The Twentieth Amendment was the consequence of the decision of the Supreme Court in Chandra Mohan vs State of Uttar Pradesh and Ors., that appointments of District Judges made otherwise than in accordance with the provisions of articles 233 and 235 were invalid.
As such appointments had been made in many States, in order to preempt mushroom litigation springing up all over the country, it was apparently thought desirable that the precise position should be stated by the Constituent body by amending the Constitution.
Shri Phadke, learned counsel for the appellants, argued that the constituent body could not be imputed with the intention of making superfluous amendments to the Constitution.
Shri Phadke invited us to say that it was a necessary inference from the Twentieth Amendment of the Constitution that, but for the amendment, the judgments, decrees etc.
of the District Judges appointed otherwise than in accordance with the provisions of article 233 would be void.
We do not think that the inference suggested by Shri Phadke is a necessary inference.
It is true that as a general rule the Parliament may be presumed not to make superfluous legislation.
The presumption is not a strong presumption and statutes are full of provisions introduced because abundans cautela non nocet (there is no harm in being cautious).
When judicial pronouncements have already declared the law on the subject, the statutory reiteration of the law with reference to the particular cases does not lead to the necessary inference that the law declared by the judicial pronouncements was not thought to apply to the particular cases but may also lead to the inference that the statute making body was mindful of the real state of the law but was acting under the influence of excessive caution and so to silence the voices of doubting Thomases by declaring the law declared by judicial pronouncements to be applicable also to the particular cases.
In Chandra Mohan ' case (Supra) this Court held that appointments of District Judges made otherwise than in accordance with article 233 of the Constitution were invalid.
Such appointments had been made in Uttar Pradesh and a few other States.
Doubts had been cast upon the validity of the judgments, decrees etc.
pronounced by those District Judges and large litigation had cropped up.
It was to clear those doubts and not to alter the law that the Twentieth Amendment of the Constitution was made.
This is clear from the statement of objects and reasons appended to the Bill which was passed as Constitution (20th Amendment) Act.
The statement said: 487 "Appointments of District Judges in Uttar Pradesh and a few other States have been rendered invalid and illegal by a recent judgment of the Supreme Court on the ground that such appointments were not made in accordance with the provisions of article 233 of the Constitution.
As a result of these judgments, a serious situation has arisen because doubt has been thrown on the validity of the judgments, decrees, orders and sentences passed or made by these District Judges and a number of Writ Petitions and other cases have already been filed challenging their validity.
The functioning of the District Courts in Uttar Pradesh has practically come to a stand still.
It is, therefore, urgently necessary to validate the judgments, decrees, orders and sentences passed or made heretofore by all such District Judges in those States. " In our view, the de facto doctrine furnishes an answer to the submissions of Shri Phadke based on Sec.
9 Criminal Procedure Code and article 21 of the Constitution.
The judges who rejected the appeal in one case and convicted the accused in the other case were not mere usurpers or intruders but were persons who discharged the functions and duties of judges under colour of lawful authority.
We are concerned with the office that the judges purported to hold.
We are not concerned with the particular incumbents of the office.
So long as the office was validly created, it matters not that the incumbent was not validly appointed.
A person appointed as a Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge, would be exercising jurisdiction in the Court of Session, and his judgments and orders would be those of the Court of Session.
They would continue to be valid as the judgments and orders, of the Court of Session, notwithstanding that his appointment to such Court might be declared invalid.
On that account alone, it can never be said that the procedure prescribed by law has not been followed.
It would be a different matter if the constitution of the Court itself is under challenge.
We are not concerned with such situation in the instant cases.
We, therefore, find no force in any of the submissions of the learned counsel.
Shri Govindan Nair attempted to argue that the confiscation was not justified on the merits.
We find no reason to interfere with 488 the concurrent findings of fact arrived at by the lower Courts.
Shri Phadke requested us to widen the scope of the appeals and to permit him to canvas the correctness of the convictions and sentences also.
We declined to do so.
All the appeals are dismissed.
P.B.R Appeals dismissed.

summary/full:
The appellants in both the appeals were convicted of certain offences by two District Judges. ' By the time the appeals went up for hearing to the High Court, the appointment of the two District Judges was quashed by this Court as being in violation of Article 233 of the Constitution.
The appellants contended before the High Court that having regard to the fact that the Supreme Court had quashed the appointment of District Judges, the judgments rendered by them in these two cases became void.
The High Court, rejecting the contention, held that since the District Judges held office under lawful authority, the judgments rendered by them during the tenure of their office were valid and that in any event the validity of the judgments could not be questioned in collateral proceedings.
In appeal to this Court it was contended that trial by a Sessions Judge appointed in violation of Article 233 was not a trial by a Sessions Judge duly appointed to exercise jurisdiction in a Court of Sessions under section 9, Cr.
P.C. and that the appellants ' liberty was being taken away otherwise than in accordance with the procedure established by law and that the Constitution (Twentieth Amendment) Act, 1966 would be a surpluses if the de facto doctrine was applied to judgments rendered by persons appointed as District Judges contrary to the provisions of Article 233 of the Constitution Dismissing the appeals, ^ HELD: The two Judges who gave the judgments in the two cases were not usurpers or intruders but were persons who discharged the functions and duties of Judges under colour of lawful authority.
So long as an office is validity created it matters not that the incumbent was not validity appointed.
A person appointed to a post of Sessions Judge would be exercising jurisdiction in the 475 Court of Session and his judgments and orders would be those of that court and would continue to be valid notwithstanding that his appointment to such court might be declared invalid.
On that account alone it cannot be said that the procedure prescribed by law had not been followed.
[487 E F] Milward vs Thatsher ; @ 87, Seaddling vs Lorant ; , re.
James (An Insolvent) , Norton vs Shelby Counrty Law Ed. 178; referred to.
The doctrine of de facto envisages that acts permitted de facto by the officers within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally as valid and binding as if they were the acts of officers de jure [478 H] The de facto doctrine is founded on good sense, sound policy and practical expedience.
It is aimed at the prevention of public and private mischief and protection of public and private interest.
It avoids endless confusion and needless chaos.
An illegal appointment may be set aside and a proper appointment may be made but the acts of those who hold office de facto are not so easily undone.
They may have lasting repercussions and confusing sequels if attempted to be undone.
[479 B] Pulin Behari vs King Emperor [1912] 15 Cal Law Journal 517 @ 574, Immedisetti Ramkrishnaiah Sons vs State of Andhra Pradesh and Anr AIR 1976 A.P 193; referred to.
A defective appointment of a de facto judge cannot be permitted to be questioned in a litigation between two private litigants.
If this were not so, so soon as a Judge pronounces a judgment litigation may be commenced for a declaration that the judgment was void because the judge was no judge.
To question a Judge 's appointment in an appeal against his judgment is such a collateral attack.
[485 B C] The de facto doctrine saves acts done by a Judge whose appointment has later been declared void, from being invalidated.
The doctrine is recognised in Article 71(2) (which declares that acts done by the President in the exercise of his powers shall not be invalidated by reason of the election being declared void) and section 107(2) of the Representation of the People Act, 1951 (which provides that acts of a reason participating as member of Parliament or a State Legislature shall not be declared invalid by reason of his election being declared void).
The doctrine, therefore, is no stranger to the Constitution and the laws.
[485 E F] The Constitution (Twentieth Amendment) Act, 1966 is an instance where the de facto doctrine was applied to remove and taint of illegality being attributed to the judgments or orders passed by District Judges appointed before 1966 otherwise than in accordance with the provisions of Articles 233 and 235 of the Constitution and which appointments were declared invalid by this Court in Chandra Mohan vs State of U.P., [485 H] 476 It is not a necessary inference from the Twentieth Amendment That but for that amendment the judgments, decrees etc.
Of those District Judges would have been void.
As a general rule Parliament may be presumed not to make superfluous legislation.
But This presumption is not a strong presumption in that it is not uncommon to find statutes containing provisions introduced because abundas cautela non nocet (there is no harm in being cautious).
[486 C D] The statutory reiteration of the law, a clear judicial pronouncement on a subject notwithstanding, only leads to the inference that The statute making body, though mindful of the real state of the law, was acting under the influence of excessive caution.
The Constitution (Twentieth Amendment) Act, 1966 is one such instance.
[486 E F]


judgement:
riminal Appeals No. 7 of 1950 and No. 25 of 1951.
Criminal Appeal No. 7 of 1950 was an appeal under article 134 (1) (c) from the Judgment and Order of the High Court of Calcutta dated 23rd May, 1950, in Government Appeal No. 2 of 1950 and Criminal Appeal No. 25 of 1951 was an appeal by special leave from the Judgment and Order of the same Court dated 4th May, 1950, in Criminal Revision No. 132 of 1950.
Ajit Kumar Datta and S.N. Mukherjee for the appellant in both the appeals.
B. Sen for the respondent in both appeals.
G.N. Joshi for the Intervener.
129 1951.
October 4.
The Judgment of the Court was delivered by CHANDRASEKHARA AIYAR J.
These two criminal appeals are from convictions of the appellants by the High Court at Calcutta.
In the first case, leave to appeal to this Court was granted by the High Court under article 134(1)(c) of the Constitu tion of India.
In the second case, special leave to appeal was granted by this Court under article 136(1) of the Con stitution.
The appeals were heard together, but as they are by different parties and the facts are different, it is desirable to have two separate judgments.
Criminal Appeal No. 7 of 1950.
The appellant, Joylal Agarwala, who was a salesman in a retail shop in Pulbazar in the district of Darjeeling in the State of West Bengal, was charged with having sold a piece of textile cloth at a price in excess of the controlled price.
For this contravention of the provisions of clause 24 (1) of the Cotton Textiles Control Order, 1948, he was convicted by the Sub Divisional Magistrate of Darjeeling under section 7 of the Essential Supplies (Temporary Powers) Act (Act XXIV) of 1946 (herein after referred to as the Essential Supplies Act), and sentenced to six months ' rigor ous imprisonment.
On appeal to the Sessions Judge, the appellant was acquitted on two grounds, viz., (1) that no sanction was previously obtained for the prosecution as required by clause 36 of the Cotton Textiles Control Order, and (2) that the Essential Supplies Act was not in force in the district of Darjeeling on the date of the occurrence.
On appeal to the High Court by the State of West Bengal, the point about the absence of sanction under clause 36 of the Control Order was given up by the present appellant as its necessity had been abolished by a later Notification of the Central Government.
On the second point, the learned Judges of the High Court held that the Act was validly extended to the district of Darjeeling and was in force in that area on the date of the occurrence, viz., 14 10 1949.
The acquittal of the appellant 130 was set aside, the order of conviction passed by the Magistrate was restored, and the appellant was sentenced to four months ' rigorous imprisonment.
To understand the main legal argument as to whether the Essential Supplies Act of 1946 was in force at the time of the alleged commission of the offence, it is necessary to set out the relevant provisions of a few Acts and Orders and their dates.
The Essential Supplies Act came into force on 19 11 1946.
Section 92(1) of the Government of India Act, 1935, provided as follows : " . no Act of the Federal Legislature or of the Provincial Legislature, shall apply to an excluded area or a partially excluded area, unless the Governor by public notification so directs, and the Governor in giving such a direction with respect to any Act may direct that the Act shall in its application to the area, . . have effect subject to such exceptions or modifications as he thinks fit.
" In exercise of the powers conferred on him by this section, the Governor of Bengal by a notification published on the 14th December, 1946, directed that the Essential Supplies Act shall apply to the district of Darjeeling, which was an excluded area.
Section 1(3) of the Essential Supplies Act provides that it shall cease to have effect on the expiration of the period mentioned in section 4 of the India (Central Govern ment and Legislature) Act, 1946 (9 & 10 Geo.
6, Ch. 39).
Section 4 of the latter Act provides as follows : "The period mentioned. is the period of one year beginning with the date on which the Proclamation of Emer gency in force at the passing of this Act ceases to operate or, if the Governor General by public notification so di rects, the period of two years beginning with that date: Provided that if and so often as a resolution approving the extension of the said period is passed by both Houses of Parliament, the said period shall be extended for a further period of twelve months from 131 the date on which it would otherwise expire so, however, that it does not in any case continue for more than five years from the date on which the Proclamation of Emergency ceases to operate.
" The Proclamation of Emergency referred to in this sec tion ceased to operate on 31 3 1946.
In the absence of a notification by the Governor General under the second part of the section, the Essential Supplies Act remained opera tive only till 31 3 1947, under the first part.
The Gover nor General, however, issued a notification on 3 3 1947 continuing its force for a period of 2 years from the date of cessation of emergency.
By virtue of this notification, therefore, the Essential Supplies Act would remain in force till 31 3 1948.
On 18 7 1947, the Indian Independence Act was passed, and India became a Dominion on 15 8 1947.
Under section 9 read with section 19(4) of the Indian Independence Act, 1947, the GOvernor General passed an Order on 14 8 1947, which substituted the words "Dominion Legislature" for" both Houses of Parliament" in the proviso to section 4 of the India (Central Government and Legislature) Act, 1946, and also introduced a new section 4A by way of adapta tion, providing that the powers of the Dominion Legislature shall be exercised by the Constituent Assembly.
On 25 2 1948, the Constituent Assembly passed its first resolution extending the operation of the Essential Supplies Act by one year up to 31 3 1949.
On 23 3 1949, a second resolution was passed by the Assembly extending the life of the Act by one more year up to 31 3 1950.
In respect of these Acts and notifications three ques tions were urged on behalf of the appellant: firstly, wheth er the Governor 's notification of the 14th December, 1946, continued the operation of the Essential Supplies Act in the district of Darjeeling beyond the then period of life of the Act, namely, the period of one year from the date of cessa tion of emergency; secondly, whether a fresh notification by the Governor under section 92(1) of the Government of India Act was not necessary.
after the life of the Essential 132 Supplies.
Act was extended by the Governor General 's noti fication of 3 3 1947; and thirdly, whether the resolutions passed by the Constituent Assembly could operate to extend the life of the Essential Supplies Act.
Now, it is clear that under section 1 (3) of the Essen tial Supplies Act, it shall cease to have effect on the expiration of the period mentioned in section 4 of the India (Central Government and Legislature) Act, 1946.
The period mentioned in that section is not necessarily one year from the date of cessation of emergency.
It can be 2 years if the Governor General by notification so directs, and it may go up to a maximum period of 5 years in instalments of 1 year each, under the proviso.
The fixation of the period of operation of the Essential Supplies Act is thus not left to any other enactment.
It is provided by the Act itself.
As stated already, the notification of the 14th December, 1946, issued by the Governor applied the Essential Supplies Act to the Darjeeling district, and its life was extended up to 31 3 1948 by the notification of the Governor General.
It is difficult to see why a fresh notification under section 92 (1) of the Government of India Act is required to continue the life of the Act in the district of Darjeeling.
The Governor 's notification extended the Act to Darjeeling without specifying any particular period for its applicabil ity to that district, and it follows therefore that the Act would remain in force in the district so long as it remained in force in the rest of India.
It is only if its effect had ceased earlier than the coming into force of the Indian Independence Act and there was a reenactment by the legisla ture which was sought to be applied to an excluded area, that a notification by the Governor under section 92 (1) of the Government of India Act might be necessary.
Otherwise, the question of a fresh notification does not arise.
Section 19(4) of the Indian Independence Act, 1947, provides as follows: "In this Act, except so far as the context otherwise requires 133 References to the Government of India Act, 1935, include references to any enactments amending or supplementing that Act, and, in particular, references to the India '(Central Government and Legislature) Act, 1946; . " The adaptations made by the Governor General under sections 9 and 19 of the Indian Independence Act substituted the words "ConstitUent Assembly" for "both Houses of Parlia ment" in section 4 of the India (Central Government and Legislature) Act, and the Constituent Assembly by two reso lutions of different dates has extended the life of the Essential Supplies Act till 31 3 1950.
As soon as the adap tations came into force by order of the Governor General, the Constituent Assembly acquired the powers conferred on both Houses of Parliament under section 4 of the India (Central Government and Legislature) Act.
The validity of the adaptations is beyond question.
The case of Jatindra Nath Gupta vs The Province of Bihar and Others(1) has no application here.
In the case now before us, the Legislature has itself applied its mind and has fixed the duration of the Act, but has left the machin ery to reach the maximum period by instalments to be worked out in a particular manner.
There is here no question of delegation at all, much less delegation of any legislative power.
The appeal therefore fails and is dismissed.
Criminal Appeal No. 25 of 1951.
In this case, the appellant Bichan Chand Molla was charged with loading 28 bags of millmade cloth from a truck into a specially chartered aircraft at the Dum Dum airport, on behalf of his employers, Messrs. Amarchand Pannalal, without a permit, as required under clause 4 (2) of the West Bengal Cotton Cloth and Yarn Movement Control Order, 1947.
He was convicted under section 7 (1) read with section 8 of the Essential Supplies Act and sentenced to 9months ' rigor ous imprisonment and a fine Of Rs. 1,000 by the (1) 18 134 1st Class Magistrate of Barrackpore.
The Sessions Judge of 24 Parganas dismissed the appeal preferred by the accused.
A revision application filed by him in the High Court shared the same fate.
The legal argument urged in this appeal was the same as in the earlier appeal, and has to be repelled as untenable for the reasons already stated.
A special point was sought to be argued that the element of mens rea was want ing.
But the question was considered by the High Court, and it was held that there are two facts from which mens tea could be inferred.
When questioned, the accused stated that he was.loading handloom bales and not millmade cloth.
He had no permit with him and was not able to produce any even from his employers.
These facts under the circumstances warrant the inference of a criminal intent.
This appeal also will therefore stand dismissed.
Agent for the intervener: P.A. Mehta.

dataset_name: IN-Abs

summary/full:
The Essential Supplies (Temporary Powers) Act (XXIV Of 1946) came into force on 19th November, 1946.
By a notifica tion 128 of 14th December, 1946, under section 92 (1) of the Government of India Act, 1935, the Governor of Bengal directed that the Act shall apply to the District of Darjeeling which was an "excluded area".
Section 1 (3) of the Essential Supplies Act provided that it shall cease to have effect on the expiration of the period mentioned in section 4 of the India (Central Government and Legislature) Act, 1946.
By a noti fication issued by the Governor General under section 4 the operation of the Essential Supplies Act was extended up to 31st March, 1948.
The Constituent Assembly in which the powers of the Houses of Parliament under section 4 of the above said India Act of 1946 became vested after the passing of the Indian Independence Act, 1947, passed resolutions ex tending the operation of the Essential Supplies Act up to 31st March, 1950.
The appellant, who was convicted under section 7 of the Act in respect of an act committed on the 14th October, 1949, within Darjeeling, contended that the Act was not validly extended to the District of Darjeeling and was not therefore in force there on the date of the alleged offence.
Held, that, as the Governor 's notification extend ed the Act to the District of Darjeeling without specifying any particular period for its applicability, the Act would remain in force in this district as long as it remained in force in the rest of India and a fresh notification of the Governor under section 92 (1) of the Government of India Act, 1935, was not necessary.
Under the adaptations made under sections 9 and 19 of the Indian Independence Act the powers conferred on the Houses of Parliament became vested in the Constituent Assembly and the Act was in force in the dis trict of Darjeeling on the date of the alleged contravention of the Act.
Held further, that there was no question of delegation of legislative power in this case as the Legislature had itself applied its mind and fixed the duration of the Act, leaving only the machinery to reach the maximum period to be worked out in a particular manner.


judgement:
Appeals Nos. 325 of 1955 and 174 of 1956.
Appeal by special leave from the decision and order dated the 29th April 1955 of the Labour Appellate Tribunal of India at Calcutta in Appeal No. Calcutta 110 of 1953 arising out of the award dated 24th June, 1953, of the Industrial Tribunal, Calcutta.
M. C. Setalvad, Attorney General for India, B. Sen, section N. Mukherji and B. N. Ghosh for M/s. Burn & Co. N. C. Chatterji, A. K. Dutt and B. P. Maheshwari for the workmen.
783 1956.
October 11.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
.Disputes having arisen between Messrs Burn and Company, Calcutta, hereinafter called the Company, and a section of their employees in Howrah Iron Works, hereinafter referred to as the Union, the Government of West Bengal issued a notification on 16 12 1952 referring the same to the First Industrial Tribunal for adjudication.
Though there were as many as 13 items comprised in the reference, we are concerned in these appeals only with four of them, viz., (1) revision of pay of clerical and sub staff, (2) grades of sarkars and checkers, (3) bonus and (4) reinstatement of four employees, section N. Chatterjee, Ashimananda Banerjee, Panchanan Rana and Joydeb Banerjee and/or payment of compensation to them.
By his award dated 24 6 1953, Shri Banerji, the Industrial Tribunal, held (1) that there were no grounds for revising the scale of pay of the clerical and sub staff; (2) that the pay of checkers should be increased and that they should be paid according to the scale as set out in his award; (3) that the profits of the Company did not warrant the grant of any bonus in addition to what had been paid by the Company; and (4) that of the four employees, Shambunath Chatterjee should be re employed as a checker on his old pay, that Ashimananda Banerjee and Panchanan Rana should be "re employed in posts equivalent to their own posts as new incumbents" and that Joydeb Banerjee was not entitled either to reinstatement or compensation.
Against this award, the Union preferred an appeal to the Labour Appellate Tribunal.
By its decision dated 29 4 1955 the Appellate Tribunal substantially modified the award of Shri Banerji in favour of the Union it held (1) that the minimum pay of the clerical and sub staff should be raised, and that corresponding changes should be made in the ceiling level, in the increments and in the scales of pay of other grades of the staff; (2) that the scale of pay of the sarkars and checkers should be increased and incre 784 ments given as laid down in the award; (3) that the employees should be paid a month 's bonus in addition to what had been given to them; and (4) that of the employees, Shambunath Chatterjee, Ashimananda Banerjee and Panchanan Rana should not merely be re employed but reinstated with continuity of service, and that further Shambunath Chatterjee was entitled to compensation at the rate of six months ' basic wages with dearness allowance.
As for Joydeb Banerjee, the Appellate Tribunal held that though his reinstatement was not desirable, he was entitled to one year 's basic wages with dearness allowance as compensation.
Against this decision, the Company has preferred Civil Appeal No. 325 of 1955 by special leave, and the Union has likewise preferred Civil Appeal No. 174 of 1956, the leave being limited in the latter to the four points raised by the Company in its appeal.
(1) The first question relates to the increase in the minimum wages of the clerical and sub staff.
For a correct understanding of the true position, it is necessary to refer to the facts which form the background of the present dispute.
In 1946, the Bengal chamber of Commerce took up the question of fixing, suitably to the changed conditions brought about by World War II, wages and other terms of service of the employees in industrial concerns, and framed a scheme classifying them under different categories, and fixing scales of pay and dearness allowance for the several categories, and that was brought into force in the Company on 1 10 1946.
Under this scheme, the scale of pay for the lower categories of employees, with whom we are concerned in these appeals, was as follows: Class of employees Basic monthly pay range Junior clerks Rs. 60 2 90 Tracers 60 2 80 Clerks 60 4 124 (E. B. at 105) Typists 60 4 90 Steno typists Comptometer 80 4 124 (E. B. at 105) Operators 785 Juniors (Drg.
and Estg.)60 4 88 2 100 Junior Draftsmen 92 4 124 2 134 Junior Estimatorsr Disputes then arose between Engineering Firms in the State of West Bengal and their employees as regards fixation of grades, wages and dearness allowance, and by a notification dated 31 10 1947 the Government referred them to the adjudication of the First Engineering Tribunal.
The appellant Company and its workmen were parties to the proceedings but not the present Union, which was composed of the clerical and sub staff.
On 30 6 1948 the Tribunal passed an award, the terms whereof were, in general, less favourable to the employees than those fixed by the Bengal Chamber of Commerce and adopted by the Company on 1 10 1946.
While the proceedings were, pending before the Engineering Tribunal, disputes arose between various Mercantile Firms in Calcutta and their employees as regards wages, dearness allowance and other terms of service, and by notification dated 17 1 1948 the Government of West Bengal referred them to the adjudication of another Tribunal, called the Mercantile Tribunal.
This Tribunal pronounced its award on 26 8 1949, and the scale of pay provided therein for the lower categories of employees was as follows: Grade D Rs. 70 3 130 Grade C Rs. 70 4 134 The Union was party No. 192 in those proceedings, but for technical reasons, the Tribunal declined to adjudicate on their disputes.
The result was that this award was no more binding on the parties than the one passed by the Engineering Tribunal.
But the scale fixed in the award of the Mercantile Tribunal was decidedly more favourable to the employees than either the scale recommended by the Bengal Chamber of Commerce and adopted by the Company on 1 10 1946 or that fixed in the award of the Engineering Tribunal, and it is therefore not surprising that it should have inspired the Union to present a demand 786 for wages and dearness allowance on the scales provided therein.
The Company having declined to accept it, there arose an industrial dispute, and by a notification dated 18 1 1950, the Government of West Bengal referred the same for adjudication to one Shri Palit, District Judge.
Before him, the Company contended that as the members of the Union were employees in an Engineering concern, the scale of pay applicable to ' them was that laid down in the award of the Engineering Tribunal, and that as the scale actually in force was more favourable to them than that scale, there was no ground for revision.
The Union, on the other hand, contended that not having been a party to the proceedings before the Engineering Tribunal, it was not bound by the award therein, and that as its members were clerical staff and not workers, the scales fixed in the award of the Mercantile Tribunal were more appropriate to them.
By his award dated 12 6 1950 shri Palit held that the nature of the work and the qualifications of the clerical staff were not the same in all business establishments, that the clerks in mercantile concerns were better qualified and had to do more onerous work than the members of the Union, that the latter could not be put in the same position as the former, and that the scale of pay fixed in the scheme of the Bengal Chamber of Commerce which was adopted by the Company was fair and required no revision.
He, however, made some slight changes in the incremental scales and the maximum limits of the grades.
The scheme as settled in his award with reference to the categories involved in this appeal was as follows: Grade Class of employees Pay according to the award of Shri Palit "D" Junior Clerks 60 3 96 Tracers 60 3 90 Clerks 60 4 140 (E.B. at 100) Typists 60 4 100 Stenotypists and Comptometer Operators 80 4 124 (E.B. at 120) 787 "C" Junior (Drawing and Estimating) 60 4 120 Junior Draftsmen _ Junior Estimators 92 4 140.
The Union preferred an appeal against this award, but that was dismissed as barred by limitation.
Under section 19(3) of the Industrial Disputes Act XIV of 1947, an award is to be in operation for a period of one year, and under section 19(6), it is to continue to be binding on the parties even thereafter, until terminated by either party by giving two months ' notice.
Acting on this provision, the Union issued a notice to the Company on 12 7 1951 being exactly one year from the date of publication of Shri Palit 's award dated 12 6 1950, declaring its intention not to be bound by it.
This was followed in November by presentation of demands including ' one for raising the scale of pay to the level adopted in the award of the Mercantile Tribunal, and the result was an industrial dispute, which is the subject matter of the present reference.
Shri Banerji, who heard the ,reference, held that the question as to the scale of pay had been directly adjudicated upon by Shri Palit, that, on principle, the decision of a Tribunal on a matter referred to it should not be disturbed, unless there had been a change of circumstances since the date of the award, and as none such existed,, the wage structure as fixed by him should stand.
The Appellate Tribunal disagreed with this conclusion.
It held that the award of Shri Palit, which Shri Banerji accepted, was bad for the reason that it had failed to examine "the question as to whether the minimum salary fixed by the Managing Agents was adequate to cover the cost of a balanced diet and provide frugal comforts which a workman of the clerical staff must have to maintain the efficiency of his work".
It then referred to the opinion of Dr. Akroyd that an intake of 2,600 calories of food was necessary for efficiency of work, quoted some decisions of the Labour Tribunal in which the minimum pay of the clerical staff had been fixed at Rs. 70 and even more, and decided that the minimum pay should be fixed at Rs. 65 per 788 mensem for the clerical and sub staff of the Company.
Having raised the floor level of the wage structure as aforesaid, it correspondingly raised the ceiling level and the scales of increment, and further with a view to maintain the differential scales as between the different categories, it raised the minimum pay in scales where it stood at Rs. 65 and more, with "consequential change in their incremental scales and the maximum grades".
It is argued for the appellant Company that the Appellate Tribunal was in error in brushing aside the award of Shri Palit and in deciding the matter afresh, as if it arose for the first time for determination, that when once a dispute is referred to a Tribunal and that results in an adjudication, that must be taken as binding on the parties thereto, unless there was a change of circumstances, and as none such had been alleged or proved, the award of shri Palit should, have been accepted, as indeed it was by Shri Banerji, and the decisions in The Army & Navy Stores Ltd., Bombay vs Their Workmen(1) and Ford Motor Co. of India, Ltd. vs Their Workmen(1) were cited in support of this contention.
In the instant case, the Labour Appellate Tribunal dismissed this argument with the observation that was "a rule of prudence and not of law".
If the Tribunal meant by this observation that the statute does not enact that an award 'should not be re opened except on the ground of change of circumstances, that would be quite correct.
But that is not decisive of the question ', because there is no provision in the statute prescribing when and under what circumstances an award could be re opened.
Section 19(4) authorises the Government to move the Tribunal for shortening the period during which the award would operate, if "there has been a material change in the circumstances on which it was based".
But this has reference to the period of one year fixed under section 19(3) and if that indicates anything, it is that would be the proper ground on which the award could be reopened under section 19(6), and that is what the learned Attorney General (1) (2) 789 contends.
But we propose to consider the question on the footing that there is nothing in the statute to indicate the grounds on which an award could be reopened.
What then is the position? Are we to hold that an award given on a matter in controversy between the parties after full hearing ceases to have any force if either of them repudiates it under section 19(6), and that the Tribunal has no option, when the matter is again referred to it for adjudication, but to proceed to try it de novo, traverse the entire ground once again, and come to a fresh decision.
That would be contrary to the well recognised principle that a decision once rendered by a competent authority on a matter in issue between the parties after a full enquiry should not be permitted to be re agitated.
It is on this principle that the rule of res judicata enacted in section II of the Civil Procedure Code is based.
That section is, no doubt, in terms inapplicable to the present matter, but the principle underlying it, expressed in the maxim "interest rei publicae ut sit finis litium", is founded on sound public policy and is of universal application.
(Vide Broom 's Legal Maxims, Tenth Edition, page.
"The rule of res judicata is dictated" observed Sir Lawrence Jenkins, C.J. in Sheoparsan Singh vs Ramnandan Prasad Singh(1)."by a wisdom which is for all time".
And there are good reasons why this principle should be applicable to decisions of Industrial Tribunals also.
Legislation regulating the relation between Capital and Labour has two objects in view.
It seeks to ensure to the workmen who have not the capacity to treat with capital on equal terms, fair returns for their labour.
It also seeks to prevent disputes between employer and employees, so that production might not be adversely affected and the larger interests of the society might not suffer.
Now, if we are to hold that an adjudication loses its force when it is repudiated under section 19(6) and that the whole controversy is at large, then the result would be that far from reconciling themselves to the award and settling down to work it, either party will treat it as a (1) [1916] L.R. 43 I.A. 91; Cal.
103 103 790 mere stage in the prosecution of a prolonged struggle, and far from bringing industrial peace, the awards would turn out to be but truces giving the parties breathing time before resuming hostile action with renewed vigour.
On the other hand, if we are to regard them as intended to have long term operation and at the same time hold that they are liable to be modified by change in the circumstances on which they were based, both the purposes of the legislature would be served.
That is the view taken by the Tribunals themselves in The Army & Navy Stores Ltd., Bombay vs Their Workmen(1) and Ford Motor Co. of India Ltd. vs Their Workmen(2), and we are of opinion that they lay down the correct principle, and that there were no grounds for the Appellate Tribunal for not following them.
We should add that the Appellate Tribunal was also in error in thinking that Shri Palit had failed to advert to the principle on which basic wages should be fixed, and that he had not referred to the doctrine of Dr. Akroyd about the need for a balanced diet of 2,600 calories.
It is true that Shri Palit does not in terms refer to these matters in his award.
But they were all discussed in the awards of both the Engineering Tribunal and the Mercantile Tribunal.
The dispute between the parties was whether the one award or the other should be taken as the basis for fixation of the scale of pay, and Shri Palit decided that it was the Engineering Tribunal 's award and not the other that was more appropriate to the class of employees, of which the Union was composed.
In basing his award on the award of the Engineering Tribunal, Shri Palit must be taken to have considered all the factors relied on by the Tribunal for fixing the scales and the criticism that the award does not refer to them once again is one of form rather than of substance.
We must, therefore, hold that the decision of the Appellate Tribunal cannot be maintained even on its own ground.
The position then is this: The question of scales of pay was decided by Shri Palit in his award dated (1) (2) 791 12 6 1950, and the Union was a party to it.
It is not alleged that there has been any change in circumstances between that date and 16 12 1952 when the present reference was made to Shri Banerji.
On the principles stated above, therefore, the award of Shri Palit should not be disturbed.
This conclusion would have entailed the reversal of the order of the Appellate Tribunal and the restoration of the award of Shri Banerji.
We are of opinion, however, that the scale fixed by the Appellate Tribunal In its order dated 29 4 1955 should not be interfered with, in so far as it fixes the minimum pay of the clerical and sub staff at Rs. 65 per mensem.
It is common ground that dearness allowance is payable under the rules of the Company, only when the cost of living index exceeds point 180.
The basic wages should therefore be fixed with 180 point as cost of living index.
When we turn to the award of the Engineering Tribunal, we find that it fixed the basic wages after taking the cost of living index as 160 points.
Before Shri Palit, the Company contended that the scale fixed in the award of the Engineering Tribunal should form the basis of fixation of the pay scale of the Union, and though the Tribunal held that the award was not as such binding on the Union, it agreed with the Company that it was the scale fixed therein and not that fixed in the award of the Mercantile Tribunal that was more appropriate to the clerical staff of an Engineering concern, and adopted the scale fixed by the Company on 31 10 1946 as being "slightly in advance of the terms contained in the Engineering Tribunal 's award".
It is clear from a reading of the award of Shri Palit that he was not conscious that the basic wages had been fixed by the Engineering Tribunal with point 160 as the cost of living index, and his observation that the scale adopted by the Company was an advance on that fixed by the Engineering Tribunal is consistent only with an assumption by him that the basic wages bad been fixed both by the Company and the Engineering Tribunal with point 180 as the cost of living index.
Now, if we are to accept the scale fixed in the award 792 of Shri Palit as did Shri Banerji, the position would.
be that while for purposes of basic wages the cost of living index point would be 160, for purposes of dearness allowance it would be 180, and that would work great injustice on the workers.
It is the realisation of this fact that must have led Mr. Bose, counsel for the Company ' to raise at a late stage of the hearing of the appeal the contention that the 'cost of living index of the Bengal Chamber of Commerce which was adopted by the Company was different from that of the Government.
But this contention went against the admission made by Mr. Sen on behalf of the Company at an earlier stage, and was rightly rejected by the Appellate Tribunal and that was abandoned before us.
There is thus, on the face of the record, an error of a fundamental character.
It is argued for the appellant that this point is not open to consideration at this stage, as it had not been raised by the Union at any time before, and that, in any event, the matter should be remanded for further enquiry.
But the question is whether in view of what appears on the face of the record this is a fit case for our interference in special appeal.
The minimum pay fixed by the Appellate Tribunal would be quite proper if the cost of living index is taken, for the purpose of fixing the basic wages, at point 180 instead of 160, and there is no reason why we should not accept it.
Nor do we think that a remand is called for in the interests of justice, as, in the face of the undisputed facts, it can only result in the proceedings dragging on and the relationship between the parties deteriorating.
Under the circumstances, we do not propose to disturb the minimum pay of Rs. 65 per mensem fixed by the Appellate Tribunal.
But we see no justification for raising either the ceiling levels or the starting pay of other categories of employees whose initial pay was Rs. 65 per mensem or more.
We accordingly set aside the scale of pay as fixed by the Appellate Tribunal and restore that of Shri Banerji subject to the following modifications: Grade D Junior clerks Rs. 65 3 98 Tracers 65 3 92 793 Grade C Clerks 65 4 141 (E.B. 'at 105) Typists 65 4 101 Junior (Drawing and Estimating) 65 4 121 (2) The second question relates to the grading of sarkars and checkers.
The claim put forward on their behalf is that they should be raised to the category of clerks.
This was rejected by Shri Palit in his award dated 12 6 1950 and again by Shri Banerji in those proceedings.
The Appellate Tribunal before whom this claim was repeated, while observing that the work of sarkars and checkers was "not of the same nature as that of the members of the clerical staff", held, nevertheless, that the scales of pay fixed in the award of the Engineering Tribunal for clerks should be applied to them, and that therefore non matriculate sarkars and checkers should be put on Rs. 55 2 1/2 80 scale and matriculate sarkars and checkers on Rs. 60 2 1/2 90 scale.
We are unable to uphold this order.
When once the Appellate Tribunal reached the conclusion that the sarkars and checkers could not be put in the same category as clerks, the question then is simply whether any grounds had been made out for interfering with the fixation of pay scales by Shri Banerji.
So far as the sarkars are concerned, the scale had been fixed by Shri Palit, and Shri Banerji adopted it.
As no change ' in the circumstances was alleged in support of a revision thereof, there was no ground for interfering with it.
As for checkers, they are hourly rated workers, and Shri Banerji had revised their pay scale.
Apart from stating that "the ends of justice" required it, the Appellate Tribunal gave no reason for modifying his award.
We are of opinion that the order of the Appellate Tribunal should be set aside both in respect of sarkars and checkers and the award of Shri Banerji restored.
(3) On the question of bonus, the facts are that the Company had an elaborate scheme for granting bonus and the employees had been paid in accordance therewith.
But the Union claimed that having regard to the profits made by the Company, the employees 794 should be paid three months ' basic wages as bonus for the years 1950 and 1951.
It is not in dispute that the profits of the Company available for distribution for the year 1950 were Rs. 3.81 lakhs and for the year 1951, even less.
The monthly salary of the clerks, sub staff, sarkars and checkers was Rs. 89,500 and the monthly wages of the workers were Rs. 1,75,000, making a total of Rs. 2,64,500.
This is only for one factory, the Howrah Iron Works.
The Company owns nine other units at different places, and there is no evidence as to the monthly salary payable to the employees and workmen in those units.
Now, the surplus of Rs. 3.81 lakhs in the hands of the Company represents the total profits made by it in all its units, and there cannot be much of a doubt that this amount would be wholly insufficient to pay one month 's basic wages as bonus to the employees of the Company in ,all its, ten units.
Shri Banerji accordingly held to at the profits of the, Company did not justify the grant of any bonus beyond what the Company had granted, and simplifying the complicated scheme of bonus which the Company had evolved, he directed that bonus should be paid, including what had been paid by it, at one month 's basic pay.
The Appellate Tribunal when dealing with this question agreed that "if all categories of workmen be paid bonus, there is no scope for the payment of any additional bonus".
But it held that as the other categories of workmen had not made any claim for bonus and as the amount payable to the members of the Union was only Rs. 89,000, the surplus was sufficient to justify the award to them only of another month 's basic wages as bonus.
Whether we consider the question on principles of law or of equity, this conclusion is clearly unsound.
In law, a claim for bonus will be admissible only if the business had resulted during the year in sufficient profits.
And as the reasons for the grant of bonus is that workers should share in the prosperity to which they have contributed, all of them would have the right to participate in it.
Therefore, profits can be said to be sufficient to declare a bonus only if they 795 are sufficient to make a payment to all of them.
If the profits are not sufficient for that purpose, then the very, condition on which bonus could be declared would be absent, and no question of granting any bonus could arise.
As it is common ground that the profits of the Company are not sufficient to justify the award of bonus if it is to be paid to all the workers of the Company in all its units, it follows that there is in law no ground for the grant of bonus.
Nor can such a claim be sustained in equity.
The entire profits of the Company are the result of the labour of all the workmen and employees in all its units.
To grant a bonus to a section of them on the basis of the total profits of the Company will be to give them a share in profits to which they have not contributed.
We are wholly unable to appreciate the observation of the Appellate Tribunal that to refuse additional bonus to the Union employees would be to penalise them " not for their own fault but for the laches of the coworkers, who abandoned their claim".
The Tribunal forgets that, on its own finding, if all the workmen made a claim, no bonus could have been declared.
It is not a question of their abandoning their claim but of their realising that they have none.
If the order of the Appellate Tribunal is to be given effect to, some of the employees of the Company would get a bonus, while others not, and as observed in Karam Chand Thappar & Bros. ' Workmen vs The Company(1), that must lead to disaffection among the workers and to further industrial disputes.
The order of the Appellate Tribunal awarding an additional one months basic wages as bonus is neither legal nor just and must be set aside and the award of Shri Banerji as regards bonus restored.
(4) It remains to deal with the question of the re instatement and/or compensation of four employees, section N. Chatterjee, Ashimananda Banerjee, Panchanan Rana and Joydeb Banerjee.
It has been already stated that the order of Shri Banerji with reference to them was modified by the Appellate Tribunal by awarding compensation at the rate of six months ' basic wages (1) ,160.
796 to section N. Chatterjee and one year 's basic wages with dearness allowance to Joydeb Banerjee and by providing that section N. Chatterjee, Ashimananda Banerjee and Panchanan Rana should not merely be re employed but reinstated with continuity of service.
It is argued for the appellant that under section 7 of the Industrial Disputes (Appellate Tribunal) Act XLVIII of 1950, the order of the Tribunal refusing reinstatement was not open to appeal, as it is not one of the matters set out in section 7(1)(b), and that, in consequence, the order of the Appellate Tribunal in so far as it modified the order of the Tribunal as regards the four employees aforesaid, was without jurisdiction, and the decision in Ranganathan vs Madras Electric Tramways(1) and Sudershan Steel Rolling Mills vs Their Workmen(2) were relied on in support of this contention.
It must be mentioned that retrenchment is one of the matters enumerated in section 7 (1) (b), in respect of which an appeal would lie.
But if the order is one of dismissal, it cannot be said to be one of retrenchment as that word is ordinarily understood, and will not be appealable under section7(1)(b).
In 1953 the legislature enacted the Industrial Disputes (Amendment) Act XLIII of 1953 wherein "retrenchment" was for the first time defined so as to include, subject to certain exceptions, the termination by the employer of the service of workmen for any reason whatsoever.
(Vide section 2(oo)).
Under this definition, an appeal would be competent under section 7 (1) (b) (vii) in the case of termination of service, subject to the exceptions specified therein.
But this Act came into force on the 24th December 1953, and as there is nothing in it giving retrospective operation to this definition, the rights of the parties to the present appeal would remain unaffected by it.
Act XLIII of 1953 replaced Ordinance No. V of 1953, wherein also retrenchment was defined as including, subject to exceptions all termination of service; but that also came into force only on the 24th October 1953, whereas the present appeal was filed on 19 8 1953.
On that date, the order of the Tribunal refusing (1) A.I.R. 1952 Mad. 669.
(2) 797 reinstatement was not open to appeal, and the order of the Appellate Tribunal modifying it would therefore be without jurisdiction and void.
But it is argued for the respondent that an award of the Tribunal refusing reinstatement would be appealable under section 7 (1) (a ') if it involved a substantial question of law, and that as the contention of the employees was that the orders dismissing them were bad as having been passed in contravention of ,the rules of natural justice, that was a question of law on which an appeal was competent.
It was further contended that when a question arises whether a Tribunal has jurisdiction over the subject matter, it must be competent to decide whether the preliminary conditions exist, on which its jurisdiction depends, and its decision on that question is not liable to be attacked in civil courts, and that accordingly the assumption of jurisdiction by the Appellate Tribunal on the footing that there was a substantial question of law was not liable to be questioned by the civil court, and the decisions in Pankaj Kumar Ganguli vs Bank of India(3) and Upper Ganges Electric Employees Union vs Upper Ganges Valley Electricity Supply Co. Ltd. and another(4) were relied on in support of this contention.
We agree that an order refusing reinstatement would be open to appeal under section 7(1)(a) if it involved a substantial question of law.
Whether a decision of the Appellate Tribunal that an appeal to it from an award was competent under section 7 (1) (a) on the ground that it involved a substantial question of law is final and not open to question in a civil court is a point on which we do not desire to express an opinion, as in the present case, the correctness of that ,decision is challenged not collaterally or in independent proceedings, such as an application under article 226 of the Constitution as in the two cases relied on for the respondent, but by way of appeal under article 136, and it is open to us to consider as a Court of Appeal whether, in fact, the order of the Tribunal was vitiated by an error of law, and whether the (1) 104 (2) A.I.R. 1956 All. 491, 104 798 order of the Appellate Tribunal modifying it is sound.
We must now consider the case of the four employees from this standpoint: (1) section N. Chatterjee had an eye defect, and acting on the advice of its medical officer, the Company discharged him on that ground.
The Tribunal has found him to be fit, and directed his re employment.
He now claims compensation on the ground that he had produced a certificate of fitness from a competent medical officer but that the Company discharged him without making any enquiry thereon.
The Appellate Tribunal found that the company bad acted bonafide, but that as the order of dismissal was made without due enquiry it was bad, and accordingly awarded compensation at the rate of six months ' basic wages.
We are unable to hold that on the facts found the Appellate Tribunal had acted without jurisdiction in interfering with the award or that its order is unjust.
No case has been made out for our interference with it under article 136 (2) Ashimananda Banerjee was arrested by the Government under the West Bengal Security Act and detained in jail from 25 1 1949 to 5 4 1951.
The Company terminated his services on 22 4 1949.
The Tribunal made an order that he should be re employed, and that is not now in question.
But he fur ther claims that he is entitled to be reinstated.
The Appellate Tribunal has accepted that claim on the ground that he had been discharged without the Company framing a charge or holding an enquiry, and that the rules of natural justice had been violated.
We are unable to agree with this decision.
The ground of discharge is the continued absence of the employee, and his inability to do work, and it is difficult to see what purpose would be served by a formal charge being delivered to him and what conceivable answer he could give thereto.
The order of the Appellate Tribunal is manifestly erroneous and must be set aside.
(3) The facts relating to Panchanan Rana are similar to those of Ashimananda Banerjee, and for the reasons already given, the order of the Appellate 799 Tribunal in his favour should be set aside.
(4) The question as regards Joydeb Banerjee is whether he is entitled to compensation on the ground that he had been wrongly discharged.
The facts are that on 16 11 1950 a number of employees participated in an assault on the Works Manager, Mr. Davison, and the Company dismissed fourteen of them on that ground, and Joydeb Banerjee was one of them.
The Appellate Tribunal has held that as no charge was, framed against him or an enquiry held, his dismissal was in contravention of the rules of natural justice.
It has accordingly ordered that he should be given one year 's basic wages with dearness allowance as compensation.
It is true that no charge sheet was formally drawn up against him, but that would not vitiate the order of dismissal if he knew what the charge against him was and had an opportunity of giving his explanation.
It appears from the order of the Tribunal that subsequent to the order of dismissal by the Company, there were conciliation proceedings and an enquiry by the Labour Minister, as a result of which he recommended the reinstatement of seven out of the fourteen who had been dismissed, leaving the order in operation as regards the other seven, of whom Joydeb Banerjee was one.
In the face of these facts, it is idle for him to contend that he had been dismissed without hearing or enquiry.
The order of the Appellate Tribunal awarding compensation to him should be set aside.
In the result, Civil Appeal No. 325 of 1955 is allowed, the order of the Appellate Tribunal set aside and that of Shri Banerji restored, except that (1) the minimum pay of the clerical staff will be Rs. 65 per mensem with modifications as to the ceiling level and increments as set out supra and (2) that section N. Chatterjee will be reinstated with compensation as provided in the order of the Appellate Tribunal.
The Union will pay half the costs of the appellant throughout.
Civil Appeal No. 174 of 1956 is dis missed, but there will be no order as to costs.

summary/full:
An award of an Industrial Tribunal is intended to have a long term of operation, and can be reopened under section 19(6) of the Industrial Disputes Act XIV of 1947 only when there has been a material change in the circumstances on which it was based.
To hold otherwise would be to defeat the two basic objects which all industrial legislations have in view, namely, to ensure to the workmen, a fair return for their labour and to prevent disputes between the employers and employees, so that production might not be affected and the interests of the society might not suffer.
That although the rule of res judicata as enacted by section 11 of the Code of Civil Procedure does not in terms apply to such an award, its underlying principle which is founded on sound public policy and is of universal application must apply.
The Army & Navy Stores Ltd., Bombay vs Their Workmen, ([1951] and Ford Motor Co. of India Ltd. vs Their Workmen, ([1951] , approved and applied.
Sheoparson Singh vs Bamnandan Prasad Singh, ([1916] L.R. 43 I.A. 91), referred to.
Consequently, where, as in the instant case, the Union of the employees of a certain section of the appellant Company served a notice on the Company under section 19(6) of the Act terminating a previous award which had applied to its members the scales of pay and dearness allowance fixed by the Bengal Chamber of Commerce with slight modifications, and demanded that the more favourable Scale of pay adopted by the Mercantile Tribunal in its award might be applied to them, and the Tribunal appointed to adjudicate the dispute, held that, there having been no change in the circumstances in which the previous award had been made, the same was binding between the parties and could not be modified, but the Appel 102 782 late Tribunal in appeal held otherwise and brushed aside the previous award, held that the order of the Appellate Tribunal was erroneous in law and as such liable to be set aside.
Hold further, that the reason for the grant of a bonus being that the workers should be allowed to share in the prosperity to which they have contributed, unless the profits for a particular year were adequate for a payment of bonus to all the workers of the Company in all its sections, no claim for it could at all arise either in law or equity.
Karam Chand Thappar & Bros. ' Workmen vs The Company ([1953] L.A.C. 152), referred to.
That an order passed by the Tribunal refusing reinstatement would be appealable under section 7(1)(a) of the Industrial Disputes (Appellate Tribunal) Act of 1960 if it involved a substantial question of law and it was not necessary to decide in the present case whether the decision of the Appellate Tribunal that an appeal lay to it under that section was final and not open to question in a civil court, as the correctness of that decision was challenged not collaterally or in an independent proceeding but in an appeal under article 136 of the Constitution and it was open to the Supreme Court in such an appeal to consider the legality or otherwise of the orders passed either by the Tribunal or by the Appellate Tribunal in appeal.
Pankaj Kumar Ganguli vs The Bank of India, ([1966] 60 C.W.N. 602) and Upper Ganges Valley Electric Employees Union vs Upper Ganges Valley Electricity Supply Co. Ltd. and another, (A.I.R. 1956 All. 491), distinguished.
That the omission to draw up a formal charge sheet against a workman could not vitiate an order of dismissal if he was aware of the charge framed against him and had an opportunity of offering his explanation.