judgement:
minal Appeals No. 76 82 of 1965.
Appeals from the judgment and order dated September 9, 1963 of the Punjab High Court, Circuit Bench at Delhi in Criminal Writs Nos.
3 D, 4 D, 5 D, 6 D, 7 D, 10 D and 12 D of 1962.
B. R. L. Iyengar and R. N, Sachthey, for the appellants (in all the appeals).
G. section Bawa and Harbans Singh, for the respondents (in Cr.
76, 81 of, 1965).
206 The Judgment of the Court was delivered by Hegde, J.
These are companion appeals.
They were brought to this Court on the strength of the certificates issued, by the High Court of Punjab.
The only question that falls for decision in these appeals is whether s.18 of the Suppression of Immoral Traffic in Women and Girls Act, 1956 (hereinafter referred to as the Act) is ultra vires article 14 of the Constitution.
The attack on the validity of that section on the basis of Art 19(d), (e) and (f) was not pressed at the time of the hearing.
Hence there is no need to examine the said plea.
The first appellant in these appeals, Shri A. C. Aggarwal.
Sub Divisional Magistrate, Delhi, issued notices to the respondents in these appeals except that in criminal appeal No. 82 of 1965 to show cause why the premises occupied by them should not be attached under .
(1) of the Act.
Those notices were issued on the basis of police reports that those premises were being used as brothers.
In reply amongst other pleas those respondents challenged the validity of s.18.
They moved the learned magistrate to refer the question as to the validity of section 18 to the High Court under s.432 of the Criminal Procedure Code of 1898.
As the learned magistrate rejected .that prayer, they moved the High Court under article 226 of the Constitution in criminal writs 'Nos. 3D to 7D and 10D of 1962, challenging the vires of s.18. Respondent in criminal appeal No. 82 of 1962 claims to be the tenant in flat No. 54 on the first floor of Japan Building, which premises had been attached in the proceedings against one Mst.
Ambar under section 18(1).
His case was that be 'had permitted the said Mst.
Ambar to use those premise 's temporarily but she lad vacated the same and therefor he was entitled to their possession as according to him he was unaware of the fact that Mst.
Ambar was using the premises in question for an improper purpose.
But the learned magistrate rejected his application holding that(a) there was no satisfactory proof of the 'fact that lie was a tenant in those promises and (b) he was aware of the unlawful use to which the premises in question were being put.
Aggrieved 'by that decision, 'he moved the High 'Court of Punjab in Ur.
Writ No,. 12 0/62 to quash :the order of the learned Magistrate on the around that section 18 was ultra vires of Article 14.
The aforementioned writ petitions were heard by Mahajan and Shamsher Bahadur, JJ.
and by a common order dated September 9, 1963, they Allowed those petition and quashed the notices issued to the respondents in criminal appeals Nos.
76 to 81 of 1965 .
They also quashed the order refusing to raise the attachment in respect of flat No. 154 of which Siri Chand the respondent in Criminal appeal No. 82 / 65 claimed to be the tenant.
The learned Judges held that "whenever action is taken under s.18 independently of s.7, 'it would offend Art.14 of the Constitution and to that extent section 18 would be ultra vires of the Constitution.
" 207 In the course of their order dated 23rd July, 1963, the learned Judges observed: "The requirements for taking action under Section 18 or under Section 7 of the Act are identical.
The Act leaves the choice of the action under one or the other provision to the executive in the case of persons similarly situate and thus can lead to discrimination without there being any rational basis for the same.
The consequences of an action in one case are of an extremely penal nature whereas in the other case, that is, under Section 18, of comparatively inconsequential nature.
The discrimination can come about where in the case of a number of prostitutes, who carry on their profession within two hundred yards of a public place, as defined in Section 7, the authorities may take action against some of ' them under Section 18 and against the others under Section 7.
The fact that this can happen is not controverted by the learned cou nsel for the Delhi State.
We also find.
no rationable behind this type of discrimination.
The, scheme of the Act also does not provide any key for such, sort of discrimination between persons of the same class.
and similarly situate".
The inhibition of article 14 that the State shall not deny to any person equality before the law or the equal protection of the laws.
was resigned to protect all persons against discrimination by the State amongst equals and to prevent any person or class of persons from being singled out as a special subject for discrimination and hostile treatment.
If law deals equally with all of a certain well defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons, for the class for whom the law has been made is different from other persons and, therefore, there is no discrimination against equals.
Every classification is in some degree likely to produce some inequality but mere production of inequality is not all by itself enough.
The inequality pruduced in order to encounter the challenge of the of the Constitution must be the result of some arbitrary step taken by the State.
Reasonable classification is permitted but suchclassification must be based upon some real and substantial distinction bearing a reasonable and just relation to the thing in respect of which such classification is made.
The presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the needs of its own people, and its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds.
The contention advanced on behalf of the respondents and accepted by the High Court, is that section 18 discriminates against the , 208 person who is proceeded against under that section, without first being prosecuted under s.3 or s.7 as the case be, though the information laid against him discloses an offence either under s.3 or s.7.
Section 18 covers two classes of cases, namely, persons who have been prosecuted and found guilty of an offence either under s.3 or s.7 as well, as persons not dealt with under those provisions.
In the case of the former, they have the benefit of regular trial, they can crossexamine the prosecution witnesses, adduce defence evidence and also go up in appeal if convicted.
In those, cases the result of the proceedings under s.18 largely though not entirely depends on the result of the connected prosecution.
But in the case of the latter, i.e., those who are only proceeded against under s.18 they have only a right of 'hearing '.
It is further urged on their behalf that under s.3 or s.7 action is taken before a court, whereas the proceeding under section 1 8 is taken before a magistrate.
In the latter case the Act does not lay down the scope of the hearing provided for.
It was lastly urged that the facts to be proved both in prosecutions under ss.3 and 7 and in proceedings under s.18 are identical; hence, there is no justification for adopting two widely different procedures.
In support of their contention that the difference in the two procedures prescribed amounts to a discrimination under article 14, reliance was placed on the decision of this Court in the State of West Bengal vs Anwar Ali Sarkar(1).
We shall now proceed to examine the correctness of these contentions.
The Act was enacted in pursuance of an international convention signed at New York on the 9th day of May, 1950.
It provides for the suppression of immoral traffic in women and girls.
The sections that are material for our present purpose are 3, 7 and 18.
Section 3 provides for punishment for keeping a brothel or allowing premises to be used as a brothel.
Section 3(1) provides for the conviction and punishment of a person who keeps or manages ,or acts or assists in the keeping or management of, a brothel.
Sub s.(2) of that section provides for the conviction and punishment of a person who being (a) tenant lessee or occupier or person incharge of any premises, uses or knowingly allows any other person to use, such premises or any part thereof as a brothel,(b) the owner lessor or landlord of any premises or the agent of such owner,lessor or landlord, lets the premises or any part thereof with the knowledge that the same or any part thereof is intended to be used as a brothel or is wilfully a party to the use of such premises or any part thereof, as a brothel.
"Brothel" is defined in s.2(a) as including a house, room, or place or any portion of any house, room or place, which is used for the purpose of prostitution for the gain of another person or for the mutual gain of two or more prostitutes.
"Prostitute" is defined in s.2(e) as meaning a female who offers her body for promiscuous sexual intercourse for hire whether in money or in kind.
(1) ; 209 Section 7 provides for the Punishment of prostitution in or in the vicinity of public places.
That section reads: "(1) Any woman or girl who carries on prostitution, and the person with whom such prostitution is carried on, 'in any premises which are within a distance of two hundred yards of any place of public religious worship, educational institution, hostel, hospital, nursing home or such other public place of any kind as may be notified in this behalf by the Commissioner of Police or District Magistrate in the manner prescribed, shall be punishable with imprisonment for a term which may extend to three months.
(2) Any person who (a) being the keeper of any public place knowingly permits prostitutes for purposes of their trade to resort to or remain in such place; or (b) being the tenant, lessee, occupier or person in charge of any premises referred to in sub section (1) knowingly permits the same or any part thereof to be.
used for prostitution; or (c) being the owner, lessor or landlord of any premises referred to in sub section (1), or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof may be used for prostitution, or is wilfully a party to such use, shall be punishable on first conviction with imprisonment for a term which may extend to three months, or with fine which may extend to two hundred rupees, or with both, and in the event of a second or subsequent conviction with imprisonment for a term which may extend to six months and also with fine which may extend to two hundred rupees.".
Public place is defined in section 2(h) as meaning any place intended for use by or accessible to the public and includes and public conveyance.
Now we may refer to section 18.
It reads: " (1) A Magistrate, may, on receipt of information from the police or otherwise, that any house, room, place or any portion thereof within a distance of two hundred yards of any public place referred to in sub section (1) of section 7, is being run or used as a brothel by any person, or is being used by prostitutes for carrying on their trade, issue notice on the owner, lessor 210 or landlord of such house, room, place or por tion or the agent of the owner, lessor or landlord or on the tenant, lessee, occupier of, or any other person in charge of such house, room, place, or portion, to show cause within seven days of the receipt of the notice why the same should not be attached for improper user thereof; and if, after hearing the person concerned, the Magistrate is satisfied that the house, room, place, or portion is being, used as a brothel or for carrying on prostitution, then the Magistrate may pass orders (a) directing eviction of the occupier within seven days of the passing of the order from the house, room, place, or portion; (b) directing that before letting it out during the period of one year immediately after the passing of the order, the owner, lessor or landlord or the agent of the owner, lessor or landlord shall obtain the previous approval of the Magistrate: Provided that, if the Magistrate finds that the owner, lessor or landlord as well as the agent of the owner, lessor or landlord, was innocent of the improper user of the house, room, place or portion, he may cause the same to be restored to the owner, lessor or landlord, or the agent of the owner, lessor or landlord, with a direction that the house, room, place or portion shall not be leased out, or otherwise given possession of, to or for the benefit of the person who was allowing the improper user therein.
(2) A Court convicting a person of any offence under section 3 or section 7 may pass orders under sub section (1), without further notice to such person to show cause as required in that sub section.
(3) Orders passed by the Magistrate or court under sub section (1) or sub section (2) shall not be subject to appeal and shall not be stayed or set aside by the order of any court, civil or criminal, and the said orders shall cease to have validity after the expiry of one year: Provided that where a conviction under section 3 or section 7 is set aside on appeal on the ground that such house, room, place or any portion thereof is not being run or used as a brothel or is not being used by prostitutes for carrying on their trade, any order passed by the trial court under sub section (1) shall also be set aside.
211 (4) Notwithstanding anything contained in any other law for the time being in force, when a Magistrate passes an order under sub section (1), or a court passes an order under sub section (2), any lease or agreement under which the house, room, place or portion is occupied at the time shall become void and inoperative.
(5) When an owner, lessor or landlord, or the agent of such owner, lessor or landlord fails to comply with a direction given under clause (b) of sub section (1) he shall be punishable with fine which may extend to five hundred rupees or when he fails to comply with a direction under the proviso to that sub section, he shall be deemed to have committed an offence under clause (b) of sub section (2) of section 3 or clause (c) of sub section (2) of section 7, as the case may be, and, punished accordingly." Sections 3 and 7 provide for the punishment of persons guilty of the offences mentioned therein.
Any contravention of the provisions mentioned therein amounts to a cognizable offence in view of section 14, whereas a proceeding under s.18 is in no sense a prosecution.
It is a preventive measure.
It is intended to minimise the chance of a brothel being run or prostitution being carried on in premises near about public places.
Naturally, in the case of prosecutions, a regular trial with a right of appeal is provided for.
The enquiry contemplated by s.18 is summary in character.
The attachment contemplated by that section can enure only for a period of one year.
Under these circumstances evidently the Legislature thought that a regular trial and an appeal against the order of the magistrate is not called for.
In these cases it is unnecessary for us to spell out the scope of the expression "hearing" found in s.18.
It is necessary to remember that ss.3 and 7 deal with persons guilty of offences whereas s.18 deals with the premises mentioned therein.
It is not correct to say that the set of facts to be proved in prosecutions under ss.3 or 7 and in proceedings under s.18 are identical.
In the former the prosecution to succeed has to establish either the intention or knowledge referred to therein but in the latter they are not necessary ingredients.
Section 18 provides for two classes of cases namely, (1) those coming either under section 3 or 7 as well as under section 18 and (2) those coming only under section 18.
They are two distinct classes of cases a classification which has reasonable relationship with the object sought to be achieved and therefore falls outside the rule laid down by this Court in Anwar Ali Sarkar 's(1) case.
(1) (N)1SCI 15(a) 212 From the copies of the reports made in these cases to the magistrate by the police made available to us at the hearing of these appeals it is clear that they disclose offences under s.3 against the respondents.
Therefore, the question is whether the magistrate can choose to ignore the cognizable offence complained of and merely have recourse to s.18 and thus deprive the parties proceeded against of the benefit of a regular trial as well as the right of appeal in the event of their conviction.
Bearing in mind the purpose of these provisions as well as the scheme of the Act and on a harmonious construction of the various provisions in the Act, we are of the opinion that in cases like those before us the magistrate who is also a court as provided in s.22 must at the first instance proceed against the persons complained against under the penal provisions in ss.3 or 7 as the case may be, and only after the disposal of those cases take action under s.18 if there is occasion for it.
Under s.190(1)(b) of the Code of Criminal Procedure, the magistrate is bound to take cognizance of any cognizable offence brought to his notice.
The words "may.
take cogni zance" in the context means "must take, cognizance".
He has no discretion in the matter, otherwise that section will be violative of article 14.
But as laid down in Delhi Administration vs Ram Singh(1) only an officer mentioned in s.13 can validly investigate an offence under the Act.
Hence if the cases before us had been investigated by such an officer, there is no difficulty for the magistrate to take cognizance of those cases.
Otherwise it is open to him to direct fresh investigations by competent police officers before deciding whether the facts placed before him disclose any cognizable offence.
In the result, we hold, for the reasons mentioned above, that the proceedings taken by the learned magistrate against the respondents are not in accordance with law as he has proceeded against them under s.18 without first taking action under s.3.
For that reason we uphold the conclusions reached by the learned Judges of the Punjab High Court but on grounds other than those relied on by them.
But this conclusion of ours does not debar the learned magistrate from taking fresh proceedings against the respondents in accordance with law as explained by us earlier.
In the result, these appeals fail and are dismissed.
Appeals dismissed.

summary/full:
Section 18 of the Suppression of Immoral Traffic in Women and Girls Act, 1956, provides for two classes of cases namely, (1) those coming under sections 3 or 7 as well as under section 18, and (2) those coming only under section 18.
Sections 3 and 7 provide for the punishment of persons guilty of the offences mentioned therein after a regular trial, with a right of appeal.
Section 18 is a preventive measure, dealing with premises, and is intended to minimise the chance of a brothel being run near a public place, and provides for a summary enquiry.
[211 D E; G H].
In the present case, on the strength of reports submitted by the police to him, the Sub Divisional Magistrate passed orders under section 18 (1) with respect to certain premises in the occupation of the respondents.
They challenged the validity of the section, and the High Court held that the section violated article 14 of the Constitution.
In appeal to this Court, Held,: Section 18 provides for two distinct classes of cases and the classification being reasonable is not violative of article 14 of the Constitution.
But the proceedings taken by the Magistrate not being in accordance with law should be set aside.
The reports disclosed a cognizable offence under section 3 of the Act and in such a case, the Magistrate cannot ignore the cognizable offence and merely have recourse to section 18, thus depriving parties of the benefit of a trial and appeal.
The, Magistrate should have taken action under section 190 (1) (b) of the Criminal Procedure Code after investigation by such police officer as is mentioned in section 13 of the Act, and it was only after the disposal of the cases against the parties that action could be taken under section 18 if there was occasion for it.
[212 A D].
State of West Bengal vs Anwar AU Sarkar.
; and Delhi Administration vs Ram.
Singh.
[1962] 2 S.C.R. 694, referred to.


judgement:
Appeal Nos. 199 and 200 of 1966.
Appeals by special leave from the judgment and order dated May 20, 1964 of the Assam and Nagaland High Court in Sales Tax Reference No. 1 of 1963.
Naunit Lal, for the appellant (in both the appeals).
B. P. Maheshwari, for the respondent (in both, the appeals).
The Judgment of the Court was delivered by Ramaswami, J.
These appeals are brought, by special, leave, from the judgment of the High Court of Assam and Nagaland dated May 20, 1964 in Sales Tax Reference No. 1 of 1963.
The respondent is a registered dealer under the Assam Sales Tax Act (Act 17 of 1947).
For the two periods ending September 30, 1959 and September 30, 1960, the Sales Tax Officer assessed the 962 respondent to sales tax holding that hydrogenated oil was exempt from sales tax but the value of the containers should be assessed at Re. 1/ for each container of hydrogenated oil and at 2 annas for salt bag and a small mustard oil tin which are other exempted goods for the period ending September 30, 1959.
For the other period ending September 30, 1960, the value of the containers of the exempted goods was estimated at Rs. 21, 5001.
The respondent preferred appeals to the Assistant Commissioner of Taxes, but the appeals were dismissed.
The respondent preferred second appeals before the Assam Board of Revenue which by its order dated June 17, 1963 also dismissed the appeals.
The respondent thereafter filed an application under section 32 of the Assam Sales Tax Act, 1947 for reference of the following two questions of law to the High Court "(1) Whether delivery.
of goods made to the Assam Rifles and NEFA, at Rowriah Air Port for consumption outside the State of Assam, constitutes a sale liable to Sales Tax under the Act ? (2) Whether the value of the containers of hydrogenated oil is assessable to Sales Tax under the Act though the oil itself is not taxable under it ?" By its judgment dated May 20, 1964 the High Court answered the first question against the assessee.
With regard to the second question, the High Court held that the value of the containers was not assessable to sales tax "unless separate price has been charged for the containers".
The High Court took the view that there was no evidence to show that actually separate price was, paid for the containers and hence there was no sale and there could not be any tax on the containers.
The High Court accordingly answered the second question in favour of the assessee.
The question presented for determination in these appeals is whether the value of containers of hydrogenated oil is assessable to sales tax under the Assam Sales Tax Act, 1947.
On behalf of the appellant Mr. Naunit Lal contended that the High Court has erred in holding that unless a separate price has been charged for the containers the value of the containers is not assessable to sales tax.
It was submitted that the parties may have intended in the circumstances to sell the hydrogenated oil apart from the containers; and the mere fact that the price of the containers was not separately fixed would make no difference to the assessment of sales tax.
In our opinion, the argument put forward on behalf of the appellant is well founded and must be accepted as correct.
It is well established that in order to con stitute a sale it is necessary that there should be an agreement between the parties for the purpose of transferring title to goods, the 963 agreement must be supported by money consideration, and that as a result of the transaction the property should actually pass in the goods.
Unless all the ingredients are present in the transaction there could be no sale of goods and sales tax cannot be imposed [State of Madras vs Gannon Dunkerley and Co. [(Madras)](1).
But the contract of sale may be express or implied.
In Hyderabad Deccan Cigarette Factory vs The State of Andhra Pradesh(2).
It was held by this Court that in a case of this description what the Sales tax authorities had to do was to ask and answer the question whether the parties, having regard to the circumstances of the case, intended to sell or buy the packing materials or whether the subjectmatter of the contracts of sale was only an exempted article, and packing materials did not form part of the bargain at all, but were used by the sellers as a convenient and cheap vehicle of transport.
At page 628 of the Report Subba Rao, J., speaking for the Court,, observed as follows: "In the instant case, it is not disputed that there were no express contracts of sale of the packing materials between the assessee and its customers.
On the facts, could such contracts be inferred ? The authority concerned should ask and answer the question whether the parties in the instant case, having regard to the circumstances of the case, inten ded to sell or buy the packing materials, or whether the subject matter of the contracts of sale was only the ciga rettes and that the packing materials did not form part of the bargain at all, but were used by the seller as a con venient and cheap vehicle of transport.
He may also have to consider the question whether, when a trader in cigarettes sold cigarettes priced at a particular figure for a speci fied number and handed them over to a customer in a cheap card board container of insignificant value, he intended to sell the cardboard container and the customer intended to buy the same ? It is not possible to state as a proposition of law that whenever particular goods were sold in a container the parties did not intend to sell and buy the container also.
Many cases may be visualized where the container is comparatively of high value and sometimes even higher than that contained in it.
Scent or whisky may be sold in costly containers.
Even cigarettes ' may be sold in silver or gold caskets.
It may be that in such cases the agreement to pay an extra price for the container may be more readily implied.
" The question as to whether there is an agreement to sell packing material is a pure question of fact depending, upon the circumstances found in each case.
But the High Court answered the (1) ; (2) 17 section T. C. 624.
964 question of law referred to it by the Board of Revenue without addressing itself to the question whether there was an express or implied agreement for the sale of the containers of hydrogenated oil in the present case.
We accordingly set aside the judgment of the High Court and direct that the answer to the second question should be that the value of containers of hydrogenated oil is assessable to salestax under the Act if there is an express OK, implied agreement for the sale of such containers.
These appeals are, accordingly, allowed At the time of grant of special leave this Court made a condition that the appellant will pay the cost of the respondent in any event.
Mr. Naunit Lal on behalf, of the appellant gave an under taking that if these appeals are allowed no further steps will be taken to tax the respondent for the containers for the periods covered in the present case.
G.C. Appeals allowed.

dataset_name: IN-Abs

summary/full:
The respondent was a registered dealer under the Assam Sales Tax Act, 1947.
The Sales tax Officer assessed the respondent to Sales tax in respect of the containers of hydrogenated oil and other exempted goods.
Appeals to the Assistant Commissioner of Taxes failed as also second ap peals to the Assam Board of Revenue.
In reference the High Court held that the value of the containers was not assessable to sales tax "unless separate price has been charged for the containers.
" This finding was based on the view that there was no evidence to show that actually separate price was paid for the containers and hence there was no sale and there could not be any tax on the containers.
In appeal to this Court by the Commissioner of Taxes it was urged that the parties may have intended in the circumstances to sell the hydrogenated oil apart from the containers the mere fact that the price of the containers was not separately fixed would make no difference HELD : The question as to whether there is an agreement to sell packing material is a pure question of fact depending upon the circumstances found in each case.
The High Court was in error when it answered the question of law referred to it without addressing itself to the question whether there was an express or implied agreement for the sale of the containers of hydrogenated oil in the present case.
[963 HI Hyderabad Deccan Cirgrette Factory vs State of Andhra Pradesh, 17 S.T.C. 624, relied on.


judgement:
Appeal No. 2232 of 1966.
Appeal by special leave from the judgment and order dated July,22, 1965 of the Allahabad High Court in Civil Misc.
Writ Petition No. 75 of 1964.
section C. Agarwala, Anil Kumar and Shiva Pujan Singh, for the appellant.
B. D. Sharma, for respondent No. 2.
The Judgment of the Court was delivered by Sikri, J.
This appeal by special leave is directed against the judgment of the Allahabad High Court dismissing the writ petition under article 226 of the Constitution filed by Dhara Singh, appellant before us.
Dhara Singh had prayed, for a writ, order or direction in the nature of certiorari quashing the judgment of the District Judge, Meerut, dismissing the election petition filed by Dhara Singh challenging the election of Pitam Singh to the office of Pramukh, Block Jani, on July 8, 1962.
Two points were raised before us: first, that the District Judge had no jurisdiction to count ballot paper No. 0045 in favour of Pitam Singh and that the returned candidate had no right to claim that ballot papers not already counted in his favour should be so counted , and secondly, that, at any rate, the District Judge erred in law in counting ballot paper No. 0045 in favour of Pitam Singh.
The relevant statutory provisions are as follows: The election is governed by the provisions of the U.P. Kshettra Samitis (Election of Pramukhs and Up Pramukhs and Settlement of Election Disputes) Rules, 1962 hereinafter called the Rules.
Rules 37, 39, 40, 43 and 44 are as follows: "37.
Relief that may be claimed by the petitioner A petitioner may claim either of the following declarations (a) that the election of the returned candidate is void; (b) that the election of the returned candidate is void and that he himself or any other candidate has been duly elected.
245 39.
Recrimination when seat claimed When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election.
Procedure (1) Except so far as provided by the Act or in these Rules, the procedure provided in the Civil Procedure Code.
1908, in regard to suits, shall in so far as it is not inconsistent with the Act or any provisions of these Rules and it can be made applicable, be followed in the hearing of the election petitions: Provided that (a) any two or more election petitions relating to the election of the same person may be heard together; (b) The Judge shall not be required to record or to have recorded the evidence in full but shall make a memorandum of the evidence sufficient in his opinion for the purpose of deciding the case; (c) the Judge may, at any stage of the proceedings, require the petitioner to give further cash security for the payment of the costs incurred or likely to be incurred by any respondent; (d) for the purpose of deciding any issue the Judge shall be required to order production of or to receive only so much evidence, oral or documentary, as he considers necessary; (e) no appeal or revision shall lie on a question of fact or law against any decision of the Judge; (f) the Judge may review his decision on any point on an application being made within fifteen days from the date of the decision, by any person considering himself aggrieved thereby, (g) no witness or other person shall be required to state for whom he has voted at an election.
(2) The provisions of the (Act No.1 of 1872) shall be deemed to apply in all respects to the trial of an election petition.
(3) B fore the hearing of an election petition commences or before the final hearing takes place the petition may be withdrawn by the petitioner or the petitioners, as the case may be, by making an application to the Judge requesting for the withdrawal of the petition 246 and upon the making of such an application the petition shall stand withdrawn and no further action shall be taken for its, trial.
Findings of the Judge (1) If the Judge after making such inquiry as he deems fit finds in respect of any person whose election is called in question by a petition, that his election was valid he shall dismiss the petition as against such person and award costs at his discretion.
(2) If the Judge finds that the election of any person was invalid he shall either (a) declare a casual vacancy to have been created, or (b) declare another candidate to have been duly elected and in either case may award costs at his discretion.
Grounds on which a candidate other thin the returned candidate may be declared to have been elected If any person who has lodged an election petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the Judge is of the opinion that in fact the petitioner or such other candidate received a majority of the valid votes, the Judge shall after declaring the election of the returned candidate to be void, declare the petitioner or such other candidate as the case may be, to have been duly elected: Provided that the petitioner or such other candidate shall not be declared to be duly elected if it is proved that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election.
" Relevant part of Schedule 11 to the Rules is as follows: "Schedule II Instructions for the Determination of Result.
In this Schedule (1) the expression 'continuing candidate ' means any candidate not elected and not excluded from the poll at any given time; (2) the expression first preference ' means the number 1 set opposite the name of any candidate ' the expression 'second preference ' similarly means the number 2, the expression 'third preference ' the number 3 and so on; 247 (3) the expression 'next available preference ' means the second or subsequent preference recorded in consecutive numerical order for a continuing candidate, preferences for candidates already excluded being ignored; (4) the expression 'unexhausted paper ' means a ballot paper on which a further preference is recorded for a continuing candidate; (5) the expression 'exhausted paper ' means a ballot paper on which no further preference is recorded for a continuing candidate; provided that a paper shall be deemed to be exhausted in any case in which (a) the names of two or more candidates whether continuing or not are marked with the same figure.
and are next in order of preference; or (b) the name of the candidate next in order of preference whether continuing or not, is marked by a number not following consecutively after some other number on the ballot paper or by two or more numbers.
" The relevent facts are that election for the office of Pramukh of Block Jani was held on July 8, 1962, under the provisions of Uttar Pradesh Kshettra Samitis and Zila Parishads Adbiniyam, 1961 (U.P. Act No. XXXIII of 1961) hereinafter referred to as the Act.
At the said election following six persons were the candidates: 1.
Shri Dhara Singh 2.
Shri Pitam Singh 3.
Shri Mahabir Singh 4.
Shri Sham Singh 5.
Shri Kalloo Singh 6.
Shri Budh Singh After following the instructions contained in Schedule II, the Returning Officer found that Dhara Singh and Pitam Singh had obtained equal number of votes and chose to draw a lot, and declared Pitam Singh as the elected candid ate.
Dhara Singh thereupon filed an election petition under the Act and the Rules raising a number of points.
The District Judge, who heard the election petition, held that the Returning Officer made a mistake in not crediting Pitam Singh with the third preference in ballot paper No. 0045.
The District Judge held: "The only point that has to be seen is whether this third preference should have been credited to Pitam Singh or not.
The definition of the expression 'next 248 available, preference ' has already been given above,Under Rule ' 6(b) the sub parcels are to be arranged according to the" next available preferences.
The ballot paper does hot become exhausted as long as ther e is a preference recorded in it for a continuing candidate.
Pitam Singh was a continuing candidate when the ballot papers cast in favour of Shiam Singh,were to be arranged in sub parcels containing , the exhausted and unexhausted ballot papers.
The learned counsel for the petitioner has contended before me that the third preference could not have been credited in favour of Pitam Singh inasmuch as the second preference in favour of Mahabira had not been utilised as he was the first to be excluded on the basis of the first preference votes and his contention is that the third preference cannot be taken into consideration.
This contention to my mind has no force.
Under the scheme of the counting as provided in the instructions a voter could have given his preference in the present case upto to six preferences as there were six candidates who were seeking election.
To my mind as long as there is any preference in a ballot paper which has not been exhausted according to the rules that preference has to 'be taken into consideration and to be credited,.
to the continuing candidate in whose favour the ' preference is.
Consequently, to my mind the Presiding Officer was in error when, he did not count the preference in favour of Pitam Singh recorded in the ballot paper No. 0045.
Crediting this preference to Pitam Singh, we find that the total number of votes which he obtained comes to 20 as against the total number of 19 in favour of Dhara Singh on the third counting Thus, in this case to my mind there was no necessity for drawing the lots and Pitam Singh should have been declared as elected as a result of counting itself as there were only two continuing candidates and out of these continuing candidates Pitam Singh had secured the larger number of votes.
" it is not necessary to set Out the findings on other 'points which are no longer in issue before us.
Dhara Singh then filed a writ petition under article 226 of the Constitution challenging the declaration given by the Returning 'Officer and the order of the District Judge referred to above.
The High Court held that the District Judge was correct in allotting ballot paper No. 0045 to Pitam Singh.
The High Court also repelled the contention that the District Judge was not entitled to take into account ballot paper No. 0045, and to award it to Pitam Singh, because Pitam Singh had, not filed any recrimination in the case in order to claim the benefit of the ballot paper.
The 249 High Court was of, the view that this was a case of rebuttal and not recrimination, as held in the Full Bench decision of the Allahabad High Court in Nathu Ram vs R.P. Dikshit(1) According to it the decision of this Court in Jabar Singh vs Genda Lal(2) was not applicable to the facts of the case.
It has been strongly contended before us by the learned Singh vs Genda Lal(2) governs the, interpretation of the Rules.
In that case, this Court was, concerned, with the interpretation of ss.97, 100(1)(d) and 101(a) of the Representation of the People, Act (43 of 1951) and r. 57(1) of, the, Conduct of Election Rules, 1961.
We find that the terms of those sections are different and, in particular, section 100(1)(d) is materially different because it uses the Words "that the result of the election; in so far as it concerns a returned candidate, has been materially affected" which do not occur in rr.
37 and 39.
It was these words which were in part relied on to limit the scope of the enquiry in cases arising under the Representation of, the People Act.
But the language of the rules here is simple and quite different.
It would be noticed that r. 37(a) is wide and no rule prescribes the grounds on which the election of the returned candidate is to be declared void.
In this case we are not concerned with r. 37(b) or r. 39.
But the learned counsel for the appellant contends that reading rr.
37 and 39 together it is clear that the trial of the election petition takes place in two compartments; first, to judge whether the returned candidate 's election is void and, then, to decide whether any other candidate should be declared to be duly elected.
He says that it is only in the latter case that any recrimination can be made under r. 39.
We are unable to agree with this contention.
It seems to us that according to r. 37(a), read with r. 40, which except for certain sections, applies the procedure in the Civil Procedure Code, the returned candidate can take any defence to show that he has been validly elected.
If the petitioner in the election petition can allege and prove that, some votes cast in favour of the returned candidate should be rejected, there is no reason why the returned candidate should not be able to allege and prove that certain votes should have been counted in his favour.
Rule 43 which deals with the findings of the Judge also shows that the suggested limitation on his jurisdiction does not exist.
It is not necessary to decide in this case whether Nathu Ram vs R. P. Dikshit(1) was correctly decided or not.
Accordingly,we hold that the District Judge was entitled to go into the question whether ballot paper No. 0045 should have been counted in favour of Pitam Singh or not.
Coming to the second point, the learned counsel contends that ballot paper No. 0045 was an "exhausted paper" within the definition quoted above.
The contention seems to be contrary (1) A.I.R. 1965 All, 454.
(2) ; , 250 to the definition because the definition expressly says that a ballot paper on which no further preference is recorded for a continuing candidate shall be an exhausted paper.
On the facts, of this case, Pitam Singh was a continuing candidate and there was a preference recorded for him on ballot paper No. 0045.
But the learned counsel says that this was a third preference and the second preference on this paper was for Mahabir Singh who was eliminated at one stage.
Now, the fact that Mahabir Singh was eliminated does not make the ballot paper an exhausted paper within the definition given in the Rules.
We agree with the conclusion of the District Judge on this point.
In the result the appeals fails and is dismissed.
Under the circumstances there will be no order as to costs.
V.P.S. Appeal dismissed.

summary/full:
Election for the office of Pramukh of a block was held under the provision of the Uttar Pradesh Kshettra Samitis and Zilla Parishads Adhinayam, 1961.
On one of the ballot papers, the second respondent had a third preference recorded in his favour and a second preference in favour of another candidate who was eliminated at one stage.
The Returning Officer did not count the third preference in favour of the second respondent and found at the final counting that the appellant and the second respondent had secured an equal number of votes.
He therefore drew a lot as per the Instructions in Schedule II and declared the second respondent duly elected.
The appellant then filed an election petition on various grounds before the District Judge who dismissed it, holding that the Returning Officer erred in not crediting the second respondent with the third preference and that if that was done there was no necessity for drawing lots at all and that the second respondent should have been declared elected as a result of the counting itself.
The appellant 's writ petition challenging the District Judge 's order was dismissed.
In appeal to this Court he contended that: (1) under rr. 37 and 39 the trial of an election petition takes place in two parts; first, to judge whether the returned candidate 's election is void and then to decide whether any other candidate should be declared to be duly elected, that it was only in the latter case the returned candidate had the right to claim that ballot papers not already counted in his favour should be so counted, and that therefore, the District Judge had no jurisdiction to count the ballot paper containing the third preference in favour of the second respondent; and (2) the ballot paper was an 'exhausted paper ' within Instruction 1(5) of Schedule II to the Rules, and that therefore the District Judge erred in law in counting it in favour of the second respondent.
Held: (1) The District Judge was entitled, to go into the question whether the uncounted ' ballot paper should have been counted in favour of the second respondent.
[249G] According to r. 37(a) read with r, 40 which generally applies the procedure in the Civil Procedure Code to the trial of election petitions under the Act, and r. 43 which deals with the findings of the trial Judge, the returned candidate can take any defence to show that he has been validly elected.
He could therefore allege and prove that certain votes should have been counted in his favour.
[249E G] Jabar Singh vs Genda Lal, ; , explained.243 244 (2) The fact that the Candidate with the second preference in the uncounted ballot Paper *as eliminated at one stage, did not make the ballot paper an 'exhausted paper ' within the definition in the Rules.
The second respondent was a continuing candidate, as per the Rules, and,there was a preference recorded for him on the ballot paper arid the District fudge was right in holding that it should have been counted in his favour, by the Returning Officer.
[250A C]


judgement:
Appeal No. 503 of 1966.
Appeal by special leave from the Award dated November 10, 1964 of the Industrial Tribunal, Andhra Pradesh in Misc.
Petition No. 32 of 1964 in Industrial Dispute No. 4 of 1964.
R. H. Gokhale, B. K. Seshu, Parameshwara Rao, Jyotana R. Melkote and R. V. Pillai, for the appellant.
M. K. Ramamurthi, Shyamala Pappu and Vineet Kumar, for the respondent.
The Judgment of the Court was delivered by Vaidialingam, J.
This appeal, by special leave, is directed against the award, dated November 10, 1964, of the Industrial Tribunal, Andhra Pradesh, Hyderabad, accepting a complaint, filed by the respondent, under section 33A, of the (Act XIV of 1947) (hereinafter called the Act).
The respondent was, at the material time, working in the main branch of the appellant, at Belgaum.
By order dated March 8, 1963, the respondent was transferred to Bhatkal branch, as a 'C ' rank Officer, to work there, as an accountant.
He was also informed that he was being relieved, so as to enable him to proceed to duty, at the place of transfer, by March 18, 1963.
He was allowed three days ' joining time.
On March 13, 1963, the Manager of the Branch at Belgaum informed the respondent that he was relieved, with effect from that date, to join duty at the Bhatkal branch, by March 18, 1963.
The respondent, by letter dated March 14, 1963, after setting out the various matters therein, applied for privilege leave, for ninety days, from March 14, 1963 to June 11, 1963, so as to enable him to improve his health and also to attend to certain domestic matters.
But the Bank, the appellant herein, desired him, by their letter dated March 23, 1963, to join duty and then apply for leave, if necessary.
Some further correspondence ensued, between the Bank and the respondent, the respondent again making a request for sanction of his leave and the appellant Bank insisting upon his joining duty, according to the order of transfer, and then applying for leave.
But, as the respondent did not join duty at the Bhatkal branch, though he was relieved from the Belgaum office, the appellant, by their communication, dated July 23, 1963, desired the respondent to offer explanation for not obeying the order of transfer.
The respondent sent a reply, on July 29, 1963, stating what, according to him, were the reasons for his not joining duty at the transferred office.
The appellant Bank, not satisfied with the explanation, given by the respondent, framed two charges against him, and communicated the same, on August 7, 1963.
The charges were to the effect that (a) the respondent, by wilfully disobeying the lawful and reasonable transfer order of 329 the management, has committed gross misconduct, for which the punishment is dismissal from service; and (b) the respondent had absented himself from duty from March .14, 1963, without leave, which again, is a minor misconduct for which also punishment can be imposed.
The respondent was also directed to submit his explanation, if any, to the charges, on or before August 25, 1963.
The respondent offered his explanation to the charges, by his letter, dated August 21, 1963.
The appellant informed the respondent, on October 1, 1963, that an enquiry would be conducted against him, in respect of the charges, on October 5, 1963 and desired him to be present at the enquiry, with the necessary evidence, in support of his defence.
The inquiry was conducted by the Enquiry Officer, in which the respondent participated.
The Enquiry Officer sent a report to the Managing Director of the Bank, dated October 28, 1963, substantially finding the respondent guilty of both the charges.
In respect of the first charge of gross misconduct, for wilfully disobeying the order of transfer, the Enquiry Officer had proposed that the respondent should be dismissed and, in respect of the second charge, of absenting without leave, it was proposed in the report that the increment be stopped, for a period of six months, with effect from April 25, 1963.
Certain consequential proposals were also made, as to how exactly the respondent 's absence, was to be dealt with.
The Managing Director of the Bank, after considering the re port submitted by the Enquiry Officer, as well as the further explanation, offered by the respondent, in respect of the findings recorded in the said report, by his order dated November 12, 1963, agreed with the recommendation of the Enquiry Officer, dismissed the respondent from the service of the Bank with immediate, effect, for the offence of wilful disobedience of the order of transfer.
The respondent was also informed that he might appeal, against the order of dismissal, to the working committee of the Directors of the Bank, within forty five days of receipt of the order.
The respondent filed an appeal, ,on December 17, 1963, be fore the working committee of the Directors, wherein he attacked the various proceedings, culminating in the order of dismissal, passed against him.
Intimation of the hearing of the appeal was given to the respondent.
But, it is seen that on the date when the appeal was taken up for hearing, viz., March 20, 1964, the respondent was not present either in person or through authorised representative of his.
In consequence, the working committee of the Directors dismissed the appeal on March 20, 1964.
In the appellate order, the working committee has elaborately considered the various circumstances necessitating the conduct of the en quiry, the enquiry proceedings and the answers given by the respondent; and it has, ultimately, agreed with the findings recorded 330 in the enquiry proceedings that the respondent had wilfully disobeyed the lawful orders of the management transferring him.
The result was that the order of dismissal, passed by the Managing Director on November 12, 1963, was confirmed.
At this stage it may be mentioned that the Central Govern ment had referred, on January 8, 1964, for adjudication, to the Industrial Tribunal, of which Dr. Mir Siadat Ali Khan was appointed as the presiding officer, with headquarters at Hyderabad, the question as to whether action, by the appellant Bank, in discontinuing pigmy collection and payment thereof to the workmen, was justified.
This was numbered as I. D. No. 4 of 1964, and the award, in this dispute, was given on August 26, 1964, and the Central Government published the same, in the Gazette of India, on September 7, 1964.
The respondent filed a complaint, under section 33A of the Act, on June 4, 1964, before the Central Government Industrial Tribunal, at Hyderabad, attacking the enquiry proceedings, conducted against him, and the order of dismissal, passed by the appellant.
Apart from attacking the inquiry proceedings, on merits, as mala fide, the respondent contended that the order of dismissal had been passed against him, without the appellant Bank complying with the provisions of the proviso to section 33(2)(b), of the Act.
According to him, inasmuch as the order of dismissal had been passed, during the pendency of 1.
D. No. 4 of 1964, the management should have asked the Industrial Tribunal for approval of their action, and they should have paid him one month 's wages.
Therefore, inasmuch as these things were not done, the appellants have contravened the provisions of section 33 of the.
The appellant Bank, in their counter statement, pleaded that the domestic enquiry, conducted by the management, was very fair and that the action of the management, in dismissing the respondent, was perfectly justified.
In this connection, the appellant raised the contention that the respondent was not a 'workman ', and that, in any event, he was not a workman concerned with the dispute covered by I.D. No. 4 of 1964, and therefore he was not entitled to file an application, under section 33A.
They further contended that there was no contravention 'of section 33 of the Act, because, at the time when the order dismissing the respondent was passed, on November 12, 1963, there was no industrial dispute pending, so as to make it obligatory on the part of the appellant, to take action, in accordance with the proviso to section 33(2)(b), of the Act.
The Industrial Tribunal, by its order, under attack, has overruled all the objections, raised by the management.
The Tribunal has held that the respondent was a 'workman ' and that he was also a workman concerned in 1.
D. No. 4 of 1964, and therefore 331 he was competent to file an application, under section 33A.
The Tribunal has also held that the dismissal of the respondent became effective only on March 20, 1964, when the working committee of the Directors of the appellant Bank disposed of the appeal, filed by the respondent.
As this date fell within the period, between January 8, 1964 and October 8, 1964, (during which 1. D. No. 4 of 1964 was pending) the management was bound to comply with the proviso to section 33(2)(b) of the Act.
As this proviso had not been complied with, the Tribunal held that there was a contravention of the provisions of section 33 of the Act, which gives a right to the respondent to invoke the jurisdiction of the Tribunal, under section 33A of the Act.
After having held that there is a contravention, of section 33 of the Act, the Tribunal then considered the attack levelled, as against the domestic enquiry proceedings, by the respondent, and recorded a finding to the effect that it was not fair to consider that the, respondent had wilfully disobeyed the order of transfer, passed by the management.
The tribunal, therefore held, on both the findings, that the respondent should be reinstated, with continuity of service and back wages.
The same contentions, that were raised before the Industrial Tribunal, on behalf of the management, have been urged before us, by the appellants ' learned counsel, Mr. Gokhale.
Counsel urged that the respondent is not a 'workman ' and, in any event, he is not a workman concerned with the dispute in I.D. No. 4 of 1964.
Counsel further pointed out that even assuming that the findings of the Tribunal, recorded against the appellant, were correct, the application, under section 33A, was not maintainable, inasmuch as there was no contravention, by the management, of any of the provisions of s, 33, 'of the Act.
In this connection, counsel pointed out, that the order of dismissal, having been passed by the Managing Director, on November 12, 1963, long before January 8, 1964, the date when I.D. No. 4 of 1964, was referred, there was no obligation, on the part of the management, to ask for approval of the Tribunal, in respect of their action, or of paying one month 's wages to the respondent.
Counsel also urged that even if these questions were answered against the appellant, the award would have to be set aside, because the Industrial Tribunal had really constituted itself as a Court of appeal, when it set aside the order of dismissal, passed by the management, which was based on the findings recorded in a proper domestic enquiry.
Mr. M. K. Ramamurthy, learned counsel, appearing for the respondent, has supported the views, expressed by the Tribunal, on all aspects.
If the contention of the appellant, that there was no Indus trial dispute, pending at the time, when the order of dismissal was passed, is accepted, then, quite naturally, it follows that no question of contravention of section 33, of the Act, arises, in which 332 case, the complaint, under section 33A, is not maintainable, in law.
In an enquiry, under section 33A, the first question that the Tribunal will have to consider, is regarding the contravention, by the employer, of the provisions of section 33 of the Act.
If this issue is answered against the employee, nothing further can be done, under section 33A, of the Act.
This position has been settled, by the decisions of this Court, in Equitable Coal, Ltd. vs Algu Singh (1) and The Punjab National Bank Ltd. vs Its Workmen (2).
After hearing arguments, on this aspect, we are inclined, in the instant case, to accept the contention of the appellant, in this regard, and hence, no other questions arise, in the application filed, by the respondent under s.33A of the Act.
There is no controversy, in this case, that the appellant did not seek the approval of the Industrial Tribunal concerned, nor did they offer or pay one month 's wages to the respondent.
There is also no controversy that I.D. No. 4 of 1964, can in law be considered to be pending only from January 8, 1964, to October 8, 1964.
The order of the Managing Director, dismissing the respondent from service, was made on November 12, 1963, which date, admittedly, falls outside the duration of the pendency of I.D. No. 4 of 1964.
The order of the working committee of Directors, rejecting the respondent 's appeal, which was passed on March 20, 1964, certainly falls within the period when I.D. No. 4 of 1964 was pending.
Therefore, the question that arises for con sideration, in this case, is as to when, it can be stated, that the respondent was dismissed, i.e., by the order of November 12, 1963, of the Managing Director, or by the appellate order of March 20, 1964, passed by the working committee of Directors.
According to the appellant, the order which has to be taken into account, for considering whether there is a contravention of section 33 of the Act, is the original order passed, by the Managing Director, on November 12, 1963, whereas, according to the respondent, the appellate order, passed on March 20, 1964, is the effective order, dismissing him.
The respondent 's contention, in this regard, is briefly as follows.
Under the National Industrial Tribunal (Bank Disputes) Award, 1962 (known as the Desai Award), a workman, in such cases, has got a right of appeal, to the appropriate authority, and he has got a period of 45 days, for filing the appeal.
In this case, the order of the Managing Director, dated November 12, 1963, also states that respondent is entitled to file an appeal, against that order, to the working committee of the Directors, within 45 days of receipt of that order.
The respondent, admittedly, filed an appeal, on December 17, 1963, well within the time.
The appeal was disposed of, on March 20, 1964.
The language of section 33(2), counsel points out, is to the effect that the employer has (1) [1958] I L.L.J. 793.
(2) ; 333 been enabled to take action, 'in accordance with the standing orders applicable to a workman concerned, in such dispute '.
Inasmuch as the standing orders, in this case, give a right to appeal, to the workman, any order that is passed, by the management, in respect of which a right of appeal is given to a workman, cannot be considered to be an effective or operative order, till the appellate decision is made known.
It will be open to the appellant to take action, in accordance with the proviso to section 33(2)(b), at the time when the appellate order was passed, on March 20, 1964, as the appellate order is the effective and binding order.
So far as the par ties are concerned, the order of dismissal, in this case, must be considered to have been passed only on March 20, 1964, which date squarely falls within the period, during which I.D. No. 4 of 1964, was pending.
We are not inclined to accept the contentions of the learned counsel, for the respondent, in this regard.
It has been laid down by this Court, in Strawboard Manufac turing Co. vs Govind(1), in construing the proviso to section 33(2)(b) of the Act, that the three things contemplated, viz., dismissal or discharge, payment of the wages and making of the application, should be part of the same transaction.
Therefore, in our view, there must be a fixed and certain point of time which will be applicable to all managements and workmen, when construing the provisions of section 33 of the Act.
The management must definitely know, as to when they have to take the necessary action, under the proviso to section 33(2)(b), and the workman also should, likewise, know the definite time when the management should have complied with the requirements of the proviso to section 33(2)(b), so that he could approach the Industrial Tribunal, by way of a complaint,, under section 33A, of the Act.
A reading of the material provisions of section 33 shows that the expressions used are 'discharge or punish, whether by dismissal or otherwise ', and they clearly indicate, in.
our opinion, the point of time, when the order of discharge or dismissal is passed, by the authority concerned.
An order of discharge or.
dismissal, in our opinion, can be passed, only once; and, in this case, the order of dismissal is the one passed, by the Managing Director, on November 12, 1963.
No doubt, either by virtue of the Standing Orders, or by virtue of a, contract, of service, a right of appeal may be given to a workman concerned, to challenge an order of dismissal.
But the appellate authority only considers whether the order of dismissal has to be sustained, or whether it requires modification.
Therefore, there is no question of the appellate authority passing, again, an order of dismissal.
We are not concerned, in construing the provisions of section 33, as to the finality of the orders passed, by the authority concerned, in the first instance, in passing orders of dismissal or discharge.
Further, the proviso to section 33(2)(b), when it, refers to payment of wages for one month, also indicates that it relates to an (1) [1962] Supp. 3 S.C.R. 618, 630.
CI S 334 order of discharge or dismissal, which comes into effect immediately, which, in this case, is the order passed, on November 12, 1963.
The payment of one month 's salary or wages, is to soften the rigour of unemployment that will face the workman, against whom an order of discharge or dismissal, has been passed.
If the management has to wait for the minimum period prescribed for filing an appeal, and also await the termination of the appeal when one is filed, considerable time would have lapsed from the date of the original order, during which period the workman would not have received any salary.
It will be anomalous to hold that even after the lapse of such a long time, the payment of one month 's salary would satisfy the requirements of the section.
In this case, if the contention of the respondent is accepted, it will lead to very anomalous results, and the time when a management has to comply with the proviso to section 33(2)(b), will radically differ.
For example, according to the respondent, the management, in this case, will have to wait for the minimum period of 45 days, which is the time given for the respondent, to file an appeal.
If an appeal is filed, according to the respondent, the management will have to wait further, and await the disposal of the appeal.
That means, in such a case, the proviso will come into effect only at the time when the appeal is disposed of.
On the other hand.
if, after the expiry of 45 days, the workman concerned does not file an appeal, the management, according to the respondent, will have to comply with the proviso immediately after the period of limitation is over.
That is, the point of time when the proviso to section 33(2)(b) will have to be complied with, by the management, will depend upon the filing or non filing of an appeal, by the workman concerned.
Further, if at the time, when the original order of dismissal is passed, there is no dispute pending, and when the appeal against the order of dismissal is pending, a dispute is referred for .adjudication, it will be open to the management to prolong its decision, in the appeal.
till after the Industrial dispute 'has come to an end.
It cannot be the intention of the Legislature that such variable and indeterminate periods are contemplated in construing the proviso to section 33(2)(b).
The natural and reasonable in terpretation, to be placed on section 33, is, in our opinion, that the order of discharge or dismissal, is the original or the very first order passed by the management , which in this case is the one passed.
by the Managing Director, on November 12, 1963.
It follows that on that date, I. D. No. 4 of 1964.
had not even been referred,.
for adjudication, which, as we 'have already indicated.
was by an order of Government, dated January 8, 1964.
Hence there is no contravention of section 33, in this case.
Before we close the discussion, it is necessary to state that Mr. Ramamurthy, learned counsel for the respondent, referred us to two decisions of this Court.
in The Management of Hotel Imperial V. Hotel Workers ' Union (1) and Collector of Customs, (1) ; 335 Calcutta vs East India Commercial Co. Ltd.(1).
In the first decision, this Court has recognised that a term should be implied, by Industrial Tribunals, in the contract of, employment, that, if the master has held a proper enquiry and come to the conclusion that the servant should be dismissed, and in consequence, suspends him, pending the permission, required under section 33 of the Act, he has the power to order suspension, thus suspending the.
contract of employment temporarily, so that there is no obligation on him ' to pay wages, and no obligation on the servant, to work.
In the second decision, this Court held that in cases where an authority reverses the order under appeal, or, modifies or merely dismisses the appeal and thus confirms the order appealed against without any modification, the operative order is the order of the appellate authority.
:In our opinion, these decisions do not assist the respondent and the principles laid down.
therein, have no bearing on the point to be determined in the instant case.
The result is that the award of the Industrial Tribunal is set aside and the application, filed by the respondent before it, will stand dismissed.
The appeal is, accordingly, allowed, but without costs.
Y.P. Appeal allowed.

summary/full:
After holding a domestic enquiry the Managing Director of the appellant Bank dismissed the respondent employee with immediate effect.
The employee was informed that he might appeal against this order to the working committee of the Directors within certain days.
The respondent filed the appeal which the working committee dismissed.
Subsequent to the filing of the appeal but prior to its dismissal, the Central Government referred to an Industrial Tribunal the question as to whether action, by the appellant Bank, in discontinuing pigmy collection and payment thereof to the workmen, was justified.
The respondent filed a complaint to the Industrial Tribunal alleging that the appellant contravened section 33 of the Industrial Dispute Act as the order of dismissal had been passed during the pendency of an Industrial Dispute, the management should have asked the Industrial Tribunal for approval of their action, and they should have paid him one month 's wages.
The Industrial Tribunal held that the dismissal of the respondent became effective only after the.
working committee disposed of the appeal, and as during this period an Industrial Dispute was pending the management was bound to comply with the proviso to section 33 (2) (b) of the Act.
In appeal to this Court.
Held:There was no contravention of section 33.
An order of discharge or dismissal, can be passed only once; and, in thus case, the order of dismissal was the original or very first passed by the Managing Director, on which date the Industrial Dispute had not even been referred, for adjudication.
No doubt, either by virtue of the Standing Orders, or by virtue of a contract, of service, a right of appeal may be given to a workman concerned, to challenge an order of dismissal.
But the appellate authority only considers whether the order of dismissal has to be sustained or whether it requires modification.
Further, the proviso to section 33(2) (b) when it refers to payment of wages for one month, also indicates that it relates to an order of discharge or dismissal which comer, into effect immediately.
The payment of one month 's salary or wages, is to soften the rigour of unemployment that will face the workman, against whom an order of discharge or dismissal, has been passed.
If the management has to wait for the minimum period prescribed for filing an appeal, also await the termination of the appeal when one is filed, considerable time would have elapsed from the date of the original order, during which period the workman would not have received any salary.
[333F 334B] Equitable Coal Ltd. vs Tlgu Singh The Punjab National Bank Ltd. vs Its Workmen [1960] 1 S.C.R. 806, and Straw.
board Manufacturing Co. vs Gobind [1962] Supp. 3 S.C.R. 618 relied 328 The Management of Hotel Imperial vs Hotel Workers ' Union ; , and Collector of Customs, Calcutta vs East India Commercial Co. Ltd. held inapplicable.