judgement:
Civil Appeals Nos. 1910 to 1912 and 2112 of 1968, and 1102 to 1105 of 1971.
Appeals by certificate/special leave from the judgments and orders dated July 28, 1967, March 29, 1968, May 24, 1968 of the Calcutta High Court in Income tax References Nos. 170 of 1963.
40 of 1965 and 4 of 1967.
V. section Desai, N. R. Khaitan, B. P. Maheshwari and Krishna Sen. for the appellants (in all the appeals).
I B. Sen, K. section Suri, R. N. Sachthey and B. D. Sharma, for the respondent (in C.As.
1910 to 1912 of 1968, and 1102 to 1104 of 1971).
B. D. Sharma, for the respondent (in C.As.
2112 of 1968 and 1105 of 1971).
The Judgment of the Court was delivered by Grover, J.
These appeals from judgments of the Calcutta High Court in Income tax References involve a common question.
We shall refer to the facts in the batch of appeals of Jaipuria Samla Amalgamated Collieries Ltd. The assessee is a public limited company incorporated under the Indian Companies Act 1913.
It carried on the business of raising coal from coal mines and selling the same to its constituents.
It had taken on lease several coal mines from the owners of the coal bearing lands.
As lessee of the mines the assessee incurred liability for payment of (i) Road and Public Works cess under the Bengal Cess Act of 1880; (ii) Education cess levied under the Bengal (Rural) Primary Education Act, 1930.
, The amounts payable by the assessee on account of the aforesaid, cesses were claimed by it as deduction under section 10 of the Income tax Act, 1922, hereinafter referred to as the "Act", in the computation of ,.its profits.
The income tax authorities disallowed that claim relying on section 10 (4) of the Act.
The assessee went up, in appeal to the 512 Appellate Tribunal which agreed with the orders of the departmental authorities.
The questions which were submitted by the Tribunal with the statement of the case relating to the assessment years 1954 55, 1955 56 were as follows : "(1) Whether, on the facts and in the circumstances of the case, the Road, the Public Works and the Education Cesses were levied either on the profits or gains of the business or were assessed at a proportion of or otherwise on the basis of any such profits within the meaning of section 10(4) of the Income tax Act, 1922 ? (2) Whether, on the facts and in the circumstances of the case, the amounts provided for or paid by the assessee company, as Road and Public Works Cess and the Education Cess was allowable as a deduction under section 10 (2) (ix) or 10 (2) (xv) of the Indian Income tax Act, 1922, read with section 10(4) of the said Act ?" , The High Court answered the questions against the assessee.
The assessee filed appeals to this Court after obtaining a certificate of fitness but the same was found defective owing to want of any reasons or grounds in the order granting the certificate.
Instead of getting the matters remitted to the High Court for giving reasons petitions for special leave were filed before us and leave was granted.
We have heard the appeals by special leave on the printed record of the appeals by certificate.
It may be mentioned that this position obtains in all the appeals by certificate before us.
Section 10(1) of the Act provides that tax shall be payable by an assessee under the head "profits and gains of business, profession or vocation" in respect of the profits and gains of any business profession or vocation carried on by him.
Sub section (2) says that such profits or gains shall be computed after making the allowances set out therein.
Clauses (ix) and (xv) of this subsection are as follows : "(ix) any sums paid on account of land revenue, local rates or municipal taxes in respect of such part of the premises as is used for the purpose of the business, profession or vocation." "(xv) any expenditure not being an allowance of the nature described in any of the clauses (i) to (xiv) inclusive, and not being in the nature of capital expenditure or personal expenses of the assessee laid out or expended wholly and exclusively for the purpose of such business, profession or vocation." Sub section (4) of section 10 to the extent It is material is in the following terms : 513 (4) Nothing in clause (ix) or clause (xv) of subsection (2) shall be deemed to authorise the allowance of any sum paid on account of any cess, rate or tax levied on the profits or gains of any business, profession or vocation or assessed at a proportion of or otherwise on the basis of any such profits or gains The essential question that has to be determined is whether the cesses levied under the aforesaid Bengal Acts fell within the mischief of section 10(4) of the Act.
It is common ground that these cesses are not levied on the profits or gains of any business, profession or vocation but it has been claimed on ' behalf of the Revenue and that contention was accepted throughout that the cesses are assessed on the basis of such profits or gains and therefore they would be covered by the said provision.
According to the preamble to the Bengal Cess Act 1880, the road and works cesses were levied on immovable property interalia to provide for the construction and maintenance of roads and other works of public utility.
Under section 5 all immovable property with certain exceptions was to be liable to the payment of road cess and public works cess.
Section 6 laid down that these cesses were to be assessed on the.
annual value of lands and until provision to the contrary was made by the Parliament on the annual not profits from mines, quarries, tramways, railways and other immovable property on such rates as were to be determined in the manner prescribed.
Under section 72 the Collector of the district had to serve a notice upon the owner etc.
of every mine, quarry and immovable property requiring him to lodge a return of the net annual profits of such property cal culated on the average of the annual net profits thereof for the last three years for which accounts had been made up.
Section 75 provided for a contingency where a return was not furnished within the prescribed period.
The Collector in that case or if he found that the return made, was untrue or incorrect was to proceed to ascertain and determine by such ways or means as seemed expedient the annual net profits of such property calculated as aforesaid.
If the Collector was unable to ascertain the annual net profits he could ascertain and determine the value of the property and thereupon determine 6% of such value to be the annual net profits thereon (section 76).
The scheme of the Bengal (Rural) Primary Education Act 1930 may next be referred to.
The preamble to that Act was as follows: "Whereas it is expedient to make better provision for the progressive expansion and for the management and control of primary education in rural.
areas in Bengal so as to make it available to all children and with a view to make it compulsory within ten years 514 According to section 29 all immovable property on which the road and public works cesses were assessed were to be liable to the payment of primary education cess.
The rates on which the education cess was to be levied varied according as the property ,consisted of mines and quarries or of tramways, railways and other immovable property.
As regards mines and quarries it was to be levied at the rate of three and a half piece on each rupee of annual net profits.
Now it is quite clear that the aforesaid cesses would be allowable deductions either under clause (ix) or clause (xv) of sub section
(2) of section 10 unless they fell within section 10(4).
We have already referred to the provisions of both Acts under which the cesses are levied which show that their assessment is not made at a proportion of the profits of the assessee 's business.
What has to be determined is whether the assessment of the cesses is made on the basis of any such profits.
The words "profits and gains of any business, profession or vocation" which are employed in section 10(4) can 'in the context, have reference only to profits or gains as determined under section 10 and cannot cover the net profits or gains arrived at or determined in a manner other than that provided by s.10 The whole purpose of enacting sub section
(4) of section IO appears to be to exclude from the permissible deductions under clauses (ix) and (xv) of sub section
(2) such cess, rate or tax which is levied on the profits or gains of any business, profession or vocation or is., assessed at a proportion of or on the basis of such profits or gains.
In other words sub section
(4) was meant to exclude a tax or a cess ' or rate the assessment of which would follow the determina tion or assessment of profits or gains of any business, profession or vocation in accordance with the provisions of section 10 of the Act.
The road cess and public works cess are to be assessed on the annual net profits under sections 72 to 76 of the Cess Act 1880.
The net annual profits have to be calculated on the average of the net profits for the last three years of the mine or the quarry and if the annual net profits of the property cannot be ascertained in the aforesaid manner then it is left to the Collector to determine the value of the property first in such manner as he considers expedient and determine 6 per cent on that value which would be deemed to be the annual net profits: The Cess Act of 1930 follows the same pattern so far as the ascertainment of annual net profits is concerned.
These profits arrived at according to the provisions of the two Cess Acts can by no stretch of reasoning be equated to the profits which are determined under section 10 of the Act.
It is not possible to see, therefore, how section 10(4) could be applicable at all in the present case.
Thus on the language of the provisions both of the Act and the two Cess Acts the applicability of section 10(4) cannot be attracted.
But even according to the decided cases 515 such cesses cannot fall within section 10(4).
The Privy Council in Commissioner of Income tax, Bengal vs Gurupada Dutta & Others(1) had to consider whether the rate imposed under the provisions of the Bengal Village Self Government Act 1919 on a person occupying a building and using the same for the purpose of business was an allowable deduction in computing the profits of the business under section 10 of the Act.
Their Lordships laid down the law in the following words : .
"It will be noted that, in the absence of the necessary powers and machinery, which are not provided by the Act, the estimate of the annual income from business can only proceed on a rough guess, which is in no way comparable with the ascertainment of profits and gains under the Income tax Act, an d, in the opinion of their Lordships, the inclusion of this element of business income as part of the "circumstances" of the assessee with a view to the imposition of the union rate does not fall within sub section (4) of Section 10 of the Income tax Act.
It is conceded that the union rate is not "levied on the profits or gains", which clearly implies an ascertainment of such profits and gains, and the words " assessed. . on the basis of any such profits or gains" in the later part of the sub section must also be so limited.
No such ascertainment of the profits and gains of the business can be undertaken for the purposes of the union rate.
,, The main argument for the Crown, therefore fails.
" In our judgment this decision is quite apposite and fully covers the points under consideration.
It has been followed by the Allahabad High Court in Simbholi Sugar Mills Ltd. vs Commi ssioner of Income tax, U.p. & V.p.(2) in which the question related to the deductibility of tax payable under the U.P. District Boards Act 1922 which was imposed on persons assessed according to their circumstances and property.
Similarly in Commissioner of Income tax, Delhi and Rajasthan vs Banarsi Dass & Sons(3), the Punjab High Court held that a tax imposed under the U.P. District Boards Act on circumstances and property could be legitimately claimed as an allowance and the above decision of the Privy Council was followed.
In the Income tax Act 1961, section 28 relates to the income which shall be chargeable to income tax under the head "profits and gains of business or profession '.
Section 30(b) (ii) is equivalent to cl.
(ix) of section 10(2) of the Act, Section 40 (a) (ii) corresponds to section 10 (4) of the Act.
It is significant that in spite of the decision of the Privy Council in (1) (3) (2) 516 Gurupada Dutta 's case(1) the Parliament did not make any change in the language of the provisions corresponding to section 10(4).
It can, therefore, legitimately be said that the view of the Privy Council with regard to the true scope and ambit of section 10(4) of the Act was accepted.
We are unable to concur in the reasoning or the conclusion of the Calcutta High Court in Commissioner of Income tax, West Bengal, vs West Bengal Mining Co.(2) in which it was held that the two cesses being related to profits would attract section 10(4) of the Act.
In the result Civil Appeals Nos. 1102 to 1105 of 1971 which are by special leave are allowed and the answers returned by the High Court are discharged.
The questions referred shall stand answered in favour of the assessees and against the Revenue.
The assessee shall be entitled to their costs in this Court.
Civil Appeals Nos. 1910 to 1912 of 1968 and 2112 of 1968 in which the certificates are defective and have to be revoked shall stand dismissed.
G.C. Ordered accordingly.

summary/full:
The appellant was a public limited company.
It carried on the business of raising coal from coal mines and selling the same.
It had taken on lease several mines from the owners of the coal bearing lands.
As lessee of the mines the appellant incurred liability for payment of (i) Road and Public Works cess under the Bengal Cess Act of 1880; (ii) Education Cess levied under the Bengal (Rural) Primary Education Act, 1930.
The amounts payable by the assessee on account of the aforesaid cesses were claimed by it as a deduction under section 10 of the Income tax Act, 1922.
The Income tax authorities disallowed that claim relying on section 10(4) of the Act.
The Tribunal and the High Court decided against the appellant.
In appeal to this Court by special leave, the question for determination was whether the cesses levied under the aforesaid Bengal Acts fell within the mischief of section 10(4) of the Act.
It was common ground that these cesses were not levied on the profits or gains of any business, profession, or vocation but it was claimed on behalf of the Revenue that the cesses were assessed on the basis of such profits and gains and therefore they would be covered by the said provision.
HELD : (i) The words 'profits and gains of any business, profession, or vocation which are employed in section 10(4) can, in the context, have reference only to profits or gains as determined under section 10 and cannot cover the net profits or gains arrived at or determined in a manner other than that provided by section 10.
The whole purpose of enacting sub section
(4) of section 10 appears to be to exclude from the permissible deduction under cis.
(ix) and (xv) of sub section
(2) such cess, rate or tax which is levied on the profits or gains of any business profession or vocation or is assessed at a proportion of or on the basis of such profits or gains.
In other words sub section
(4) was meant to exclude a tax or a cess or a rate the assessment of which would follow the determination or assessment of profits or gains of any business.
profession or vocation in accordance with section 10 of the Act.
[514 D E] (iii) The road cess and public works cess are to be assessed on the annual net profits under sections 72 and 76 of the Cess Act 1880.
The net annual profits have to be calculated on the average of the net profits for the last three years of the mine or the quarry and if the annual net profits of the property cannot be ascertained in the aforesaid manner then it is left to the Collector to determine the value of the property first in such manner as he considers expedient and determine 6 per cent on that value which would be deemed to be the annual net profits.
The Cess Act of 1930 follows the same pattern so far as the ascertainment of annual net profits is concerned.
These profits arrived at according to the provisions of the two Cess Acts can by no stretch of reasoning be equated to the profits which are determined under section 10 of the Act.
It is not possible to see, therefore, how section 10(4) could be applicable at all in the 511 present case.
Thus on the language of the provisions both of the Act and the two Cess Acts the applicability of section 10(4) cannot be attracted.
[514 F H] Commissioner of Income tax, Bengal vs Gurupada Datta , applied.
Simbholi Sugar Mill Ltd. vs Commissioner of Income tax, U.P. & Rajasthan vs Banarsi Dass & Sons, , approved.
Commissioner of Income tax, West Bengal vs West, Bengal Mining Co. , disapproved.


judgement:
No. 205 of 1971.
Petition under article 32 of the Constitution of India for a writ in the nature of habeas corpus.
518 V. Mayakrishnan, for the petitioner.
section P. Mitra, G. section Chatterjee for Sukumar Basu, for the respondent.
The impugned order states that the District Magistrate was satisfied that it was necessary that the petitioner should be detained with a view to prevent him from acting in any manner prejudicial to the security of the State or the maintenance of public order as provided by section 3(1) of the Act.
According to the affidavit in reply of the District Magistrate, he reported under section 3 (4) of the Act to the State Government On March 3, 1971 regarding the fact of his having passed the order of detention together with the grounds of detention and all other.
particulars having a bearing on the name.
It is further stated that the.
petitioner was arrested on March 5, 1971 and was served on the same day with the order of detention together with the, grounds for passing the order of detention.
The petitioner was also informed that he is entitled to make a representation to the State Government against the order of detention and that such representation is to be addressed to the Assistant Secretary Home (Special) DEpartment, Government of West Bengal and forwarded through the Superintendent of Jail.
He was further informed that his case will be placed under section 10 of the Act before, the Advisory Board within 30 days from the date of the order of detention.
He was also informed that under section 11 of the Act, the; Advisory Board shall, if so desired by him, hear him in person and that the petitioner must intimate the said desire to be heard in the representations that he may make to the State Government.
The State Government considered the report of the District Magistrate together with other materials placed before it and approved, on March 11, 1971 as required by section 3 (4) of the Act, the order of detention passed by the District Magistrate.
On the same day, as required,by section 3(5) the State Government sent the necessary report to the Central Government.
The State Government on April 3, 1971 placed the case of the petitioner before the Advisory Board.
519 The petitioner sent two representations dated March 17, and April 19, 1971 denying the allegations made in the grounds for passing the order of detention and pleaded that he was innocent.
He has admitted in these representations that he was arrested on March 5, 1971.
In neither of these representations did the petitioner make a request that he should be provided an opportunity of being heard in person by the Advisory Board.
The State Government rejected the representations of the petitioner, but forwarded them to the Advisory Board for being considered.
The Advisory Board after considering the, materials placed before it relating to the detention of the petitioner including the represen tations made by him on March 17, 1971 and April 19, 1971, submitted its report on May 11, 1971 to the State Government stating that it is of opinion that there is sufficient cause for the detention of the petitioner.
The State Government passed an order on July 12, 1971 under section 12(1) of the Act confirming the order: of detention dated March 2, 1971 passed by the District Magistrate and directed that the petitioner 's detention shall be continued till the expiration of twelve months from the date of his detention.
The petitioner has challenged the order of detention on the ground that he has never committed any offence nor has he been involved in any illegal activities as alleged in the grounds of detention.
He has further stated that the various allegations mentioned against him are false and that he never participated in any of the incidents referred to in the grounds of detention.
The petitioner has further stated that he is innocent and that he has been illegally detained.
It Will be noted from his averments in the writ petition that except denying that the allegations are false and that he has never participated in any of those incidents referred to in the grounds of detention, he has not alleged any mala fides nor challenged the jurisdiction of the officer who, passed the order of detention or the various proceedings connected therewith.
Under section 3 (1) of the Act, *hat is required is the satisfaction of the State Government or the relevant District Magistrate, as the case may be, of the necessity to detain a person with a view to prevent him from acting in a manner prejudicial to the security of the State or the maintenance of public order.
In the order of detention dated March 2, 1971, the District Magistrate has stated that he was satisfied that with a view to prevent the petitioner from acting in any manner prejudicial to the security of the State or the maintenance of public order, it is necessary to detain the petitioner and that the order was being passed in exercise of the powers conferred on the District Magistrate by sub section (1) read with subsection (3) of section 3 of the Act.
In the grounds of detention 520 .
furnished to the petitioner on March 5, 1971 along with the order dated March 2, 1971 the following particulars have been given: "(1) That, on 26 1 71 between 11.00 and 12.31 hours, you along with your associates being armed with bombs, ballasts, pipe guns, lathis etc., assembled at Piali Railway Station and created terror among the passengers by charging bombs and showering ballasts indiscriminately and also moving from compartment to compartment of train Nos.
SC 193 UP and SC 195 UP in search of your rivals, shouting that "if I get the Rascal, I will kill them" and in doing so you caused injury to some innocent passengers and broke the glass panes of driver 's cab of SC 195 Up.
You created disturbance of the public order thereby.
(2)That, on 2 2 71 at about 17.39 hours, you along with your associates, being armed with bombs, daggers etc., attacked and assaulted the guard of train No. SC 199 Up at Champahati Railway Station and also created terror among the passengers by charging a bomb.
You created disturbance of the public order thereby.
(3) That on 9 2 71 at about 13.15 hours you and your associates charged bombs and ballasts on duty Police party at Jadavpur Railway Station as they seized 10 bags of rice weighing about 3 quintals from SC 195 Up, while you were taking the said stock to Calcutta rationing area illegally by train.
Your attack grew so violent that the Police party had to open fire upon you in self defence.
Your violent activities created serious panic in the Station area and the public order was disturbed thereby.
" In the two representations dated March 17 and April 19, 1971 made to the State Government, the petitioner after referring to the fact that he was arrested on March 5, 1971 has denied that he was involved in any of the types of violent activities referred to in the grounds for detention.
He has further stated that he is leading a very honest life doing the work of mason and that the allegations made against him are false.
As we have already mentioned, the petitioner did not ask for an opportunity of.
being heard,in person by the Advisory Board.
He has not also alleged in these representations and mala fides in passing the order of dention.
The District Magistrate who passed the order of detention has filed a counter affidavit.
The District Magistrate has stated that the petitioner is rice smuggler operating in Subarban Railway 521 trains in Southern Section of Eastern Railway and that he along with his associates armed with bombs and other deadly weapons attacked the passengers and the guard of railway trains and created terror by hurling bombs in Champahati and Piali Railway Stations.
The District Magistrate further proceeds to state that the petitioner was detained for acting in a manner prejudicial to the security of the State or the maintenance of public order in the Jadavpur area of the district of 24 Parganas for his having taken a leading and active part in violent activities.
It is further stated in the counter affidavit that the activities of the petitioner disturbed the public order and were so persistent and violent that he became a terror to the residents of the locality and the railway traveling public and that but for his detention he could not have been prevented from acting in a manner prejudicial to the security of the State ,or maintenance of public order.
It is further stated that the deponent after receiving reliable information relating to the anti social and prejudicial activities of the petitioner and after carefully considering these materials, he was fully satisfied that the petitioner was engaged and was indulging in activities which were prejudicial to the security of the State or the maintenance of public order, and that his detention was essential.
On being thus satisfied, the District Magistrate proceeds to state that he bona fide passed the order of detention on his own satisfaction, judgment and reasoning.
The counter affidavit then proceeds to state about the order of confirmation passed by the State Government and other matters resulting finally in the order passed by the Government on July 12, 1971.
It may be pointed out that in paragraph 6 of the counter affidavit it has been mentioned that the Advisory Board submitted its report on May 11, 1971 "after hearing the petitioner.
" This statement is obviously wrong because the petitioner never asked for being heard in person.
The Advisory Board also does not say that the petitioner was heard in person.
The counsel appearing for the State has expressed his regret regarding this mistaken averment made in the counter affidavit.
But that does not in any manner advance the case of the petitioner, as we will presently show.
We have already referred to the fact that the petitioner has merely denied his being associated with the incidents.
referred to in the grounds of detention.
We are satisfied from the averments made by the District Magistrate in the counter affidavit, which have not been further controverted by the petitioner by filing any rejoinder that the order of detention has been validly and properly passed.
Mr. V. Mayakrishnan, Amicus Curiae, appearing on behalf of the petitioner has urged that every one of the grounds has referred to the activities of the petitioner having resulted in disturbance of 522 public order.
But the order of detention refers to the fact that the District Magistrate was of the view that the petitioner should be detained with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order.
No ground showing as to how any activity of the petitioner is prejudicial to the security of the State justifying the order Of detention has been furnished to the petitioner.
Therefore, according to the learned counsel, the order of detention is illegal inasmuch as the petitioner has not been informed of any grounds as to how his activities are prejudicial to the security of the State.
Inasmuch as both the matters have been mentioned in the order of detention, it must be that the detaining authority has taken into account extrenuous and irrelevant matters in passing the order of detention.
In particular, according to the learned counsel, it is only the matters referred to in sub cl.
(1) of cl.
(a) of section 3 (2) of the Act that will relate to the activities adversely affecting the security of the State.
None of those matters have been mentioned in the grounds furnished to the petitioner.
Therefore, it is not clear whether the detaining authority passed the order to prevent the petitioner from acting in any manner prejudicial to the Security of the State or for maintenance of public order.
For all these, reasons, the counsel urged, the order of detention is illegal.
Mr. section P. Mitra, learned counsel appearing for the State drew our attention to the provisions contained in section 3(2) of the Act and pointed out that the various acts mentioned in the grounds of detention come within the expressions "acting in any manner prejudicial to the security of the State or the maintenance of public order." In particular he relied upon cl.
(d) of section 2 and pointed out that the petitioner has committed an offence under the , (Act No. 6 of 1908) and, therefore, his detention was legal.
We are not inclined to accept the contention of the learned counsel for the petitioner.
As already mentioned, under section 3(1) of the Act, what is required is the satisfaction of the State Government or the relevant District Magistrate, as the case may be, of the necessity to detain a person with a view to prevent him from acting in a manner prejudicial to the security of the State or the maintenance of public order.
As defined by sub section (2) of section 3, the expression "acting in any manner prejudicial to the security of the State or the maintenance of public order means : lm15 "(a)using or instigating any person by words, either spoken or written, or by signs or by visible representations or otherwise, to use, any lethal weapon (i) to promote or propagate any cause or ideology the promotion or propagation of which affects 523 or is likely to affect, adversely the security of the State or the maintenance of public order.
or (ii)to overthrow or to overawe the Government established by law in India.
Explanation In this clause, "lethal weapon" includes fire arms, explosive or corresive substances.
swords, spears, daggers, bows and arrows; or (b)committing mischief, within the meaning of section 425 of the Indian Penal Code, by fire or any explosive substance on any property of Government or any local authority or any corporation owned or controlled by Government or any University or other educational institution or on any public building, where the commission of such mischief disturbs, or is likely to disturb, public order; or (c)causing insult to the Indian National Flag or to any other object of public veneration, whether by mutilating, damaging, burning, defiling, destroying or otherwise, or instigating any person to do so.
Explanation In this clause, "object of public veneration" includes any portrait or statute of an eminent Indian, installed in a public place as a mark of respect to him or to his memory; or (d)committing, or instigating any person to commit, any offence punishable with death or imprisonment for life or imprisonment for a term extending to seven years or more or any offence under the or the , where the commission of such offence disturbs, or is likely to disturb, public order; or (e)in the case of a person referred to in clause (a) to (f) of section 110 of the Code of Criminal Procedure, 1898, committing any offence punishable with imprisonment where the commission of such offence disturbs or is likely to disturb, public order.
It will be seen that the Act itself furnishes a dictionary meaning.
for the two expressions and a perusal of cls.
(a) to (e) clearly shows that any of the matters referred to therein will be both " prejudicial to the security of the State or the maintenance of public order".
We are not inclined to accept the contention on behalf of the petitioner that it is only sub cl.
(1) of cl.
(a) of section 3(2) which 524 deals with the matters, which adversely affect the security of the ,State.
In fact that very sub clause refers to the 'matters mentioned therein as affecting the security of the State or the maintenance of public order.
Therefore, in this case the grounds of detention .cannot be held to be vague nor can the order of detention be held to be invalid on the ground that the petitioner must have been detained only to prevent him from acting in any manner prejudicial to the maintenance of public order and not to the security of the State.
In particular, under cl.
(d) of section 2, a person will be considered to be acting in a manner prejudicial to the security of the State or the maintenance of public order, if he commits any offence under the .
The various incidents mentioned in the grounds of detention may also come under cl.
(b) of sub section (2) of section 3 Section 3 of the , is as follows : "Sec. 3 : Any person who unlawfully and mali ciously causes by any explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property shall, whether any injury to person or property has been actually caused or not, be punished with transportation for life or any shorter term, to which fine may be added, or with imprisonment for a term which may extend to ten years, to which fine may be added." ' The various grounds mentioned in the order of detention clearly bring the activities of the petitioner under section 3 quoted above.
The date and the place as well as the time when the incidents occurred, and also the train numbers which were affected, as well as the association of the petitioner with those incidents, have been fully given in the grounds of detention.
No doubt the names of the persons, who are stated to be his associates have not been given.
For all the above reasons, we are satisfied that the order of detention is valid.
In the result, rule nisi is discharged and this writ petition dismissed.
G.C. Petition dismissed.

dataset_name: IN-Abs

summary/full:
The petitioner was detained under an order dated March 2, 1971 passed by the District Magistrate, 24 Pargana, West Bengal, under sub section
(i) read with sub section
(3) of section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970.
The order stated that the District Magistrate was satisfied that it was necessary that the petitioner should be detained with a view to prevent him from acting in any manner pre judicial to the security of the State or the maintenance of public order as provided in section 3(1).
In the grounds of detention supplied to the petitioner three incidents of violence at railway stations in which the petitioner was alleged to have participated and used explosives were men tioned.
In his representations against being detained the petitioner did not allege any mala fides against the administration but only denied that he took part in the violent activities.
In 'support of the writ petition under article 32 of the Constitution challenging the order of its detention it was urged that while the impugned order mentioned his activities as being prejudicial to public order as well as security of the State, the instances given in the grounds of detention only mentioned activities pre judicial to public order.
The detaining authority had thus taken into account extraneous and irrelevant matters in passing the order of detention. ' According to the appellant it is only matters referred to in sub c. (i) of c1. (a) of section 3(2) of the Act which will relate to the activities adversely affecting the security of the State, and none of these matters had been mentioned in the grounds of detention furnished to the petitioner.
HELD : The contention of the petitioner that it is only sub cl.
(1) of cl.
(a) of section 3(2) which deals with matters adversely affecting the security of the State could not be accepted.
In fact that very sub clause refers to the matters herein as affectingthe security of the State or the maintenance of public order.
Thereforein this case the grounds of detention could not be held to be vague norcould the order of detention be held to be invalid on the ground thatthe petitioner must have been detained only to prevent him from actingin any manner prejudicial to the maintenance of public order and not to the security of the State.
In particular under cl.
(d) of section 2 a person will be considered to be acting in a manner prejudicial to the security of the State or the maintenance of public order, if he commits any offence under the .
The various incidents mentioned in the grounds of detention may also come under cl.
(b) of sub section '(2) of section 3.
Further the said grounds clearly bring the activities of the petitioner under section 3 of the .
[523 H 524 E] Accordingly the detention of the petitioner must be held to be valid and the petition under article 32 must be dismissed.


judgement:
Appeal No. 1071 of 1966.
Appeal by special leave from the Award dated September 10, 1965, of the Labour Court, Jullundur in Reference No. 157 of 1959.
A. B. Sinha, and B. P. Maheshwari, for the appellant.
Hardev Singh, for respondents Nos. 2 to 24.
after the management had suspended six of its workmen on certain charges of misconduct for having refused to ,operate some machines, another worker Shri Darshan Singh, a Helper of a Blowing Machine also refused on 25 1 59 when called upon by the management to work the machine in tile absence ,of Shri Daulat Ram, Machineman and was accordingly suspended the same day.
On hearing this news the workmen went to see one of the partners of the appellant and demanded that the order of suspension passed against Shri Darshan Singh should be cancelled and he be reinstated as a Helper.
As the management was not agreeable to reinstate the Helper workman, the workers went on a lightening strike.
Since the workmen came on strike con ciliation efforts were made but in spite of the persuasion of the Labour Officer, M.W. 2, the Labour Inspector M.W. 4 and by the management, Respondents 2 to 24 along with other did not report for duty although it is stated the Appellant was willing to employ them.
Certain charge sheets were served on the working on towards the end of January to which replies were given.
Thereafter notices were sent to the Respondents 2 to 15 and 17 to 24 asking them to resume work by certain specified dates and when they did not resume work other notices were sent requiring the said Respondents to show why their names should not be struck,off and asked them to submit their reply by a certain date.
In so far as Respondent 16 is concerned a notice was served oil him ,on 4 3 59 in which it was mentioned that he was absent since 13 2 59 without any leave and that he should resume duty by 6 3 59.
He was further asked to explain by 8 3 59 why his name should not be struck off.
None of the Respondents Nos. 2 to 24 either acknowledged these notices nor sent a reply.
The management thereafter by letters dated 23 2 59, 4 3 59 and 17 3 59 informed the aforesaid Respondents that since they were no longer interested in the employment their names were struck off from the muster rolls.
It is alleged that from 25 1 59 till their names were struck off from the muster rolls, the Respondents sat outside the Mill gate and in spite of persuasion by the Labour Officer as well as by the management were genuinely desirous of their resuming work, they did not join duty and as a consequence the management was compelled to employ others in order to keep the mill going.
It is also stated that during this period those workmen who wanted to join duty were permitted to do so and their services were entertained.
It is also the case of the management that the strike fizzled out after the striking workmen failed to get rations and thereafter they had abandoned the service.
On 19 3 59 a demand notice on behalf of the workmen was served on the management as a result of which the conciliation proceedings commenced.
But even then according to the report of the Conciliation Officer while the management was willing to employ the workmen, the Respondents 493 were, not willing to resume work till the suspended workmen were also 'allowed to resume duty.
Ultimately on 26 8 59 the matter was referred to the Labour Court at Jullundur under Sec.
10 of the (hereinafter referred to as 'the Act '), to determine whether the termination of services of 31 workmen whose names were mentioned therein was justified.
It may be mentioned here that out of these 31 workmen 8 workmen had resumed their duties and were no longer interested in the proceedings.
The Labour Court after receiving the statement of claim and recording the evidence on behalf of both the management and the workmen.
passed an Award on 31 10 61 which was published in the Gazette of 8 12 61.
By this Award the claim of the workmen was rejected on the ground inter alia : (a) that they had resorted to illegal strike; (b) that the management did not in fact terminate the services of the workmen concerned in the case and never meant to take action against them for having gone on strike.
On the other hand management was always prepare to take them back and was requesting them through the Labour Inspector and the Labour Officer to end the strike and to resume duty but the workers went on insisting that the suspension orders passed on their co workmen should first be cancelled; (c) that the workmen were adamant and as such there was no alternative for the management except to terminate their services and take fresh hands who are still continuing in its service; and (d) that no evidence was produced by the workmen to prove that any of them ever requested the, management to resume duty or that the management had turned down any such request.
Against this Award of the Labour Court a Writ Petition was filed by the Respondents in the High Court of Punjab.
A Single Bench of that Court by its Judgment dated 6 12 64 held that in law the plea that the workers had abandoned the services of the Appellant could not be sustained, but on the other hand it was the management which had terminated their services.
In this view the case was remanded to the Labour Court for a fresh decision.
A Letters Patent Appeal was filed by the management against this decision but later it was dismissed as withdrawn.
On remand the Labour Court by an Award dated 10 9 65 which was published in the Gazette on 1 10 65 held that the plea of the L 1340 Sup CI/71 494 workmen that there was a lock out by the management was not substantiated, on the other hand it was they who had gone on strike; that the strike was illegal because of the proceedings pending before the Labour Court in Reference No. 150 of 1958; that the question as to whether the management had terminated the services of the concerned workmen or not was not a matter which was res integra in view of ,the judgment of the Punjab High Court in the Writ Petition referred to above; and in the alternative as the termination took place by virtue of letters dated 23 2 59, 4 3 59 and 17 3 59 without holding an enquiry, it was not valid.
In the result the Labour Court directed reinstatement of Respondents 2 to 24.
In so far as Surat Singh Respondent No. 16 was concerned, it was found that there were no standing orders in force applicable to the Appellant, as such it was not justified in dismissing him for absence without leave.
It was also held that the Respondents were not entitled to wages from 25 1 59 to 17 3 59.
They would however only be entitled to half the back wages from 18 3 59 to the date on which the Award would become enforceable and from that date till the date of their reinstatement, Respondents Nos.
2 to 24 would be given full back wages.
Against the said Award this 'A peal has been filed by Special Leave.
The short question for our consideration is whether the ter mination of employment of the Respondents in the circumstances of the case without an enquiry was justified.
There is no doubt that it has been conceded at the very outset that there being no ,standing orders applicable to the Appellant, the termination of the services of Shri Surat Singh, Respondent No. 16 is not valid and the Award pertaining to his reinstatement cannot be assailed.
In so far as the validity of the action of the management in terminating the employment of the other Respondents is concerned a great deal would depend on whether the management was able to justify its action before the Tribunal.
It would be useful to set ,out at the outset certain undisputed facts namely : (1) that the Respondents went on a strike on 25 1 59; (2) that as there was a reference pending before the Labour Court that strike would be illegal, under Chapter V of the ; (3) that both the Labour Officers as well as the management tried to persuade the workers to join duty and after the demand notice dated 19 3 59 conciliation efforts were made but they did not resume work and made it a condition of their joining duty that the suspended workmen also should be taken back; 495 (4) that the management gave workers on strike notices on different dates asking them to join duty by a date specified therein and subsequently by another letter called upon them to justify their absence failing which they were informed that their names would be struck off from the muster roll; (5) that notwithstanding those notices and the willingness of the management to take them back the Respondent gave no reply and continued the strike till they were informed by letters dated 25 2 59, 4 3 59 and 17 3 59 that their names were removed from muster roll; and (6) that no domestic enquiry was held into the misconduct of the Respondents.
On these admitted facts it is sought to be contended on behalf of the Appellant that the Management took every possible step to get the workmen back into their factory but they were adamant in continuing the strike.
In these circumstances they could do nothing else but to terminate their services and take in fresh hands in order to keep the factory going.
It may be mentioned that the management immediately after the strike served charge sheets calling upon them to show cause why proper legal action should not be taken against them.
In those charge sheets they had al leged that the Respondents had indulged in intimidation, unjustified slogan mongering and inciting the workers to remain on strike.
The workmen by their letters denied the allegations against them.
Thereafter the management seem to have dropped these charges and tried to persuade them to join work.
It would be useful to examine the correspondence of a typical case.
On 5 2 59 by exhibit A3 the management served a notice and wrote to Amar Nath son of Brijlal, as follows : "Please take notice that from the afternoon of 25 1 59 you are on strike, which is illegal due to the pendency of proceedings before the Punjab Labour Court, Amritsar in reference No. 150 of 1958.
This Strike of yours is wholly unjustified.
In spite of the various persuasive attempts by the management and the Labour Department, Amritsar, you have failed to resume work.
If you will not come to duty on 8th Feb. 59 the management would employ fresh hand in your stead as the management can ill afford to keep the work at a standstill.
You will have in that event no claim to any reinstatement or compensation.
Management is however prepared to consider you as one of the new entrants, should you be selected for appointment.
This application should reach in writing by 9th Feb. '59".
496 A copy of this letter was given to the Labour Commissioner, Ambala Cantt.
as well as Labour Inspector and Labour Officer, Amritsar.
When this Workman did not join his duty the management by exhibit A4 wrote another letter to him on 21 2 59.It said : "You were served with a registered notice on 5 2 59 that you since the afternoon of 25th Jan. '59 are on illegal and unjustified strike along with other workers You were given an opportunity to report for duty upto 8 2 59.
But uptil today you did not report yourself for duty by which it is clearly patent that you do not want to work in the factory.
Therefore show cause as to why your name be not struck off from the muster roll of the factory.
The factory management also gave you a chance that you can join on new services.
but you did not do even that, which clearly shows that your stand is totally illegal and baseless.
Factory cannot be closed in any event, thus your coming on duty was necessary.
If you will not give any satisfactory reply then your name will be struck off from the muster roll of the factory.
Your repl y should reach upto 25 2 59".
Copies of this letter were also given to the Labour Officer referred to above.
When no reply was received to this letter the management terminated the services by exhibit A7 dated 4 3 59 which is as follows: "For your continued absence since the afternoon of 25 1 59 and in spite of repeated requests to come and join duty you have failed to resume work.
You have also failed to show cause in pursuance to our letter dt.
21 2 59 as already intimated for your abandonment of service and/or illegal strike.
In view of your these illegal activities the management has struck off your name from the muster roll of the Mills w.e.f. 4 3 59".
The Respondent 's advocate while not denying these letters as above contends that the earlier letters had charged them with incitement and stay in strike and intimidation etc.
but the management gave the go by to it and have terminated the service for merely going on a peaceful strike and by subsequent letters it was made clear that the object of the management was to employ the workmen afresh and deprive them of the past benefits which had accrued to them.
He further submits that merely because workmen have gone on a strike which is a weapon for obtaining their redress, the relationship of employer and employee does not come to an end and if the workmen have behaved in a violent manner or incited or intimidated other workmen, even then the management cannot terminate their services without holding an 497 enquiry into the alleged misconduct but as no such enquiry was held the termination is illegal.
The question however would be whether before the services of the workmen, who are on strike, are terminated, is an enquiry into their misconduct obligatory and would an omission to comply with this requirement, make the order of termination illegal? It appears to us that merely because workmen go on strike it does not justify the management, in terminating their services.
In any case if allegations of misconduct have been made against them those allegations have to be enquired into by charging them with specific acts of misconduct and giving them an opportunity to defend themselves at the enquiry.
Even where a strike is illegal it does not justify the management from terminating their services merely on that ground, though if it can be shown on an enquiry that the conduct of the workmen amounted to misconduct it can do so.
While it is an accepted principle of industrial adjudication that workmen can resort to strike in order to press for their demands without snapping the relationship of employer and employee, it is equally a well accepted principle that the work of the factory cannot be paralysed and brought to a standstill by an illegal strike, in spite of legal steps being taken by the management to resolve the conflict.
The management have the right in those circumstances to carry on the work of the factory in furtherance of which it could employ other workmen and justify its action on merits in any adjudication of the dispute arising thereform.
In Express Newspapers (P) Ltd. vs Michael Mark & Anr.,(1) where certain ' employees who had indulged in ill gal strike did not join their duty in spite of notices given by the management and their places were filled up by others, applied for relief under the Payment of Wages Act but the, application was dismissed.
The workers moved the High Court under article 226 and their Writ Petitions were allowed.
This Court in Appeal held that the Standing Orders contemplated termination of employment by the employer and in those cases there could be no doubt that the Appellant had terminated the employment, ,of the Respondents by removing their names from the muster roll without giving them any notice of such removal.
It was also held that if employees absent themselves from work because of strike in enforcement of their demands, there can be no question of abandonment of employment by them and that if the strike was in fact illegal, the Appellant could take disciplinary action against the employees under the Standing Order and dismiss them.
(1) 498 This case merely illustrates what has been stated by us that even where the strike is illegal a domestic enquiry must be held.
In the case before us admittedly there were no Standing Orders applicable to the appellant.
Nonetheless a domestic enquiry should have been held in order to entitle the management to dispense with the services of its workmen on the ground of misconduct.
This view of ours is also supported by another case of this Court in India General Navigation & Railway Co. Ltd. vs Their Workmen(1) where it was held that mere taking part in an illegal strike without anything further would not necessarily justify the dismissal of all the workers taking part in the strike and that if the employer, before dismissing a workman, gives him sufficient opportunity of explaining his conduct and no question of mala fides or vicitimisation arises, it is not for the Tribunal in adjudicating the propriety of such dismissal, to look into the sufficiency or otherwise of the evidence led before the 'enquiring officer or insist on the same degree of proof as is required in a Court of Law, as if it was sitting in appeal over the decision of the employer.
, It may be mentioned that in the case of a domestic enquiry where misconduct is held to be proved the Tribunal can only interfere with that order if there is mala fides or want of good faith, there was victimisation or unfair labour practice or the management has been guilty of basic error or violation of the principles of natural justice or on the materials the finding is completely baseless or perverse.
If however the management does not hold such an enquiry or the enquiry is due to some omission or deficiency not valid it can nonetheless support its order of discharge, termination or dismissal when the matter is referred for Industrial adjudication by producing satisfactory evidence and proving misconduct.
Even in such cases the evidence which is produced to substantiate and justify the action taken against the workmen is not as stringent as that which is required in a Court of Law.
At any rate the evidence should be such as would satisfy the Tribunal that the order of termination is proper.
The Appellant before us on the evidence produced before the Tribunal seeks to justify its order removing the names of the Respondents from the muster roll.
In the Punjab National Bank Ltd. vs Its Workmen,(2) though there was no enquiry held by the management it sought to justify the action of termination of services of its employees before the Industrial Tribunal.
The employees of the Appellant Bank had commenced pen down strikes which were followed by general strike Pending arbitration of an industrial dispute between them.
On the intervention of the Govt.
the Bank reinstated all the employees (1) ; (2) ; 499 except 150 against whom it had positive objection and it is in respect of those workmen that a dispute was referred under Section 10 of the Act for adjudication.
One of the two issues that was referred to the Tribunal was whether 150 employees had been wrongly dismissed.
The Tribunal did not hear any evidence and by its final award held that the strike was illegal, the Bank, was, on that ground alone, justified in dismissing the employees.
On Appeal the Labour Appellate Tribunal held that even though the strikes were illegal under Sec.
23(b) read with 24(1) of the Act, the Bank had by entering into, the agreement with the Govt.
of India, waived its right to take penal action against its employees for joining the illegal strikes and that therefore, an enquiry should be held on additional evidence to decide the disputes on merits.
Against this interlocutory order the Bank appealed to this Court which held that while the strikes were no doubt illegal under Sec.
23 (b) of the Act, the orders of dismissal passed by the Bank were no less so under See.
33 of the Act and it dismissed the Appeal.
The Appellate Tribunal thereafter, heard the cases on merits, directed the reinstatement of 136 of the said employees, but refused to reinstate the rest whom it found guilty of issuing posters and circulars subversive of the credit of the Bank.
Both the Bank and the workers appealed to this Court.
It was held that under Sec.
33A of the Act as construed by this Court the jurisdiction of the Tribunal was not limited to an enquiry as to the contravention of Sec. 33 of the Act.
Even if such contravention was proved, the employer could still justify the impugned dismissal on merits and there was no difference in this regard between a reference under Sec.
10 of the Act and a dispute raised under Sec.
33A of the Act.
In Workmen of Motipur Sugar Factory (P) Ltd., vs Motipur Sugar Factory,(1) the workers of the Respondent started a go slow in its Sugar Factory.
Therefore the Respondent issued a general notice to those workmen and individually to each workman notifying that unless he recorded his willingness to discharge his duties faithfully and diligently so as to give a certain minimum output, he will be no longer employed and the willingness he was required to record was to be done within a certain time failing which he was notified that he would be discharged without further notice.
Respondents held no enquiry as required by the Standing Orders before dispensing with the services of the Appellant.
A general strike followed resulting in a joint application by both the parties to the Govt.
and the Govt.
referred the question to the Tribunal.
In the notice given by the Respondents it was stated that the go slow tactics was likely to injure the (1) ; 500 factory resulting in a major breakdown of the machinery.
The Tribunal came to the conclusion that there was go slow during ,the period and consequently held that the discharge of the workmen was fully justified.
It was contended before this Court that what the Tribunal had to concern itself was whether the discharge of the workmen for not giving an undertaking was justified or not and that it was no part of its duty to decide that there was go slow which would justify the order of discharge and ,that since the Respondents held no enquiry as required by the .Standing Orders it could not justify the discharge before the Tribunal.
It was pointed out in that case that the Court had consistently held that if the domestic enquiry is irregular, invalid or improper the Tribunal may give an opportunity to the employer to prove his case and in doing so the Tribunal tries the merits itself and that no distinction can be made between cases where the domestic enquiry is invalid and those where no enquiry has in fact been held.
It was observed at page 603: "Looking at the matter in this broad way and that is all that we are prepared to do, for we are examining a finding of fact of the tribunal we cannot say that its conclusion that there was go slow between November 27 and December 15 is not justified .
But as we have already indicated, the charge in the notice ,of December 15 was that the workmen had been going slow from November 27 and they were asked to give an undertaking to improve and the respondent was apparently willing to overlook the earlier lapse.
Even assuming that the demand of an undertaking was un justified, it does appear that the attitude of the workmen was that they would do no better; and in those circumstances they were discharged on December 17, 1960, on the basis of misconduct consisting of go slow between November 27 and December 16, 1960.
That misconduct has been held proved by the Tribunal and in our opinion that decision of the Tribunal cannot be said to be wrong.
In the circumstances the Tribunal was justified in coming to the conclusion that the discharge was fully justified.
" In a recent case the Hindustan General Electrical Corporation Ltd. vs Bishwanath Prasad & Anr.,(1) while considering this aspect of the matter we had held that even though no enquiry was held or there was contravention of the provisions of Sec. 33 ,of the Act, in a dispute referred under Sec.
10 the Labour Court had to adjudicate upon the dispute which was referred to it with regard to the Respondent and had to go into the question (1) Civil Appeal No. 2167 of 1966 Judgment delivered on 17 8 71, 501 as to whether he had been properly dismissed.
In other words the management can justify and substantiate its action on evidence duly placed before the Tribunal.
The learned Advocate for the Respondents however urges that even where the strike is illegal in order to justify the dismissal or the order terminating the services of workmen on the ground of misconduct the management must prove that they were guilty of some overt acts such as intimidation, incitement or violence.
We do not think that in every case the proof of such overt acts are necessary prerequisite.
In this case there is a persistent and obdurate refusal by the workmen to join duty notwithstanding the fact that the management has done everything possible to persuade them and give them opportunities to come back to work but they have without any sufficient cause refused, which in our view would constitute misconduct and justify the termination of their services.
The workmen as spoken to by the Labour Officers and also as, is evidenced by the documentary evidence to which we have referred, were unwilling to join duty till the workmen who were suspended were also taken back.
There is nothing to justify the allegation that the management wanted to terminate their services under some pretext with a view to recruit them afresh and deprive them of accrued benefits.
The notices clearly mention that the workmen would be free to join duty by a certain date and only after that date ,the management was prepared to entertain them a, new entrants if they were to apply by the date specified in the notices.
It appears to us therefore that management has proved misconduct and the stand taken by it was reasonable.
There was nothing that it could do further in view of the unjustified attitude taken by the workers by staying away from work particularly after they were given over a month 's time within which to commence work.
In the view we take the order terminating their services was not improper.
The Tribunal was not justified in directing their reinstatement and payment of wages merely on the round that no domestic enquiry was held.
The appeal is accordingly allowed except for the Award in respect of Surat Singh, which is maintained.
Having regard to the circumstances of the case there will be no order as to costs.
V.P.S. Appeal allowed.

summary/full:
While a reference was pending before the Labour Court the respondent workmen went on strike because some workmen were suspended.
The Labour Officer as well as the management tried to persuade the workers to rejoin duty, but the respondents, made it a condition of their joining duty that the suspended workmen should also be taken back.
The management thereafter gave the respondents notices on different dates asking them to join duty by a date specified in the notices and subsequently, by another letter, called upon them to justify their absence, failing which.
the respondents were informed, that their names would be struck off from the muster roll.
Notwithstanding those notices and the willingness of management to take them back the respondents gave no reply but continued the strike and they were informed by letters that their names were removed from the muster roll.
No domestic inquiry however, was held into the misconduct of the respondents.
The Labour Court, to which the dispute was referred directed reinstatement of the respondents.
In appeal to this Court, on the: question whether the termination of the employment of the respondents, in the circumstances of the case, without an inquiry, was justified.
HELD : (1) It is an accepted principle of industrial adjudication that workmen can resort to strike in order to press for their demands without snapping the relationship of employer and employee.
, Equally, the management have the right to carry on work, in furtherance of which, they could employ other workmen and justify their action on merits in any adjudication of the dispute arising therefrom.
[497 C E] (2) Merely because workmen go on strike, even where the strike is illegal, it does not justify the management in terminating their services without a domestic inquiry.
[497 C] (3) In the case of a domestic inquiry where misconduct is held to he proved, the industrial tribunal or labour court can only interfere with that order if there is mala fide, or want of good faith or there was victimisation or unfair labour practice or the management has been guilty of basic errors or violation of principles of natural justice or if on the materials, the finding is completely baseless or perverse.
If, however, the management does not hold an inquiry, or the inquiry is, due to some omission or defi ciency, not valid, the management can nonetheless support the order of discharge, termination or dismissal when the matter is referred for industrial adjudication by producing satisfactory evidence and proving misconduct of the concerned workmen.
The evidence to substantiate and justify the action taken against the workmen is not as stringent as that 491 which is required in a court of law, but should be such as would satisfy the tribunal that the order of termination was proper.
In such a case, there is no difference between a reference under section 10 of the Industrial Disputes Act and a dispute raised under section 33A of the Act, and, no distinction can be made between cases where the domestic inquiry is invalid and those where no inquiry has, in fact, been ,held.
That is, the management can justify and substantiate its action on evidence duty place before the Tribunal.
[498 E G; 499 E F; 500 C D; 501 A B] (4) In the present case, there were no Standing Orders applicable to the appellant company.
A domestic inquiry should have been held in order to entitle the management to dispense with the services of its workmen on the ground of misconduct.
[498 A B] (5) But the management had proved before the Labour Court that there was persistent and obdurate refusal by the workmen to join duty notwithstanding the fact that the management had done everything possible to persuade them and gave them opportunities to come back to work; and that the respondents had, without any sufficient cause refused to do.
The strike was illegal and it was not necessary for the management to prove that the respondents were guilty of overt acts of intimidation, incitement or violence.
There, is nothing to justify the allegation that the management wanted to terminate to their services under some pretext with a view to recruit them afresh and deprive them of accrued benefits.
, The notices clearly mentioned that the workmen would be free to join duty by a certain date, and it was only after that date the management was willing to entertain them only as new entrants.
Therefore, though no domestic, inquiry was held, the management had proved the misconduct of the respondents before the Labour Court and hence the termination of their services was not improper, and there was no justification for directing their reinstatement.
[501 C G] Express Newspapers (P) Ltd. vs Michael Mark & Anr., , India General Navigation & Railway Co. Ltd. vs Their Workmen; , , Punjab National Bank Ltd. vs Its Workmen ; , Workmen of Motipur Sugar Factory (P) .
Ltd. vs Motipur Sugar Factory, ; and Hindustan General Electrical Corporation Ltd. vs Bishwanath Prasad & Anr.
C.A. No. 2167/66 dt.
17 8 71, followed.


judgement:
minal Appeal No. 100 of 1969.
572 Appeal by special leave from the judgment and order dated January 8, 1969 of the Bombay High Court in Criminal Application No. 1341 of 1968.
C. L. Sareen and J. C. Talwar, for the appellant.
P. K. Chatterjee and section P. Nayar, for the respondent.
The Judgment of the Court was delivered by Shelat, J.
The appellant and one Bakshi Singh Sunder Singh were accused No. 2 and accused No. 1 respectively in the committal proceedings before the Presidency Magistrate, 28th Court, Greater Bombay.
This appeal, by special leave, is directed against the judgment of the High Court of Bombay refusing to quash the order of committal passed by the learned Magistrate.
The facts relevant to this appeal are few and may first be stated.
On October 31, 1963, one Jivansingh Uttam Singh obtained a British passport bearing No. 183459 at Nairobi.
On the strength of that passport he was returning to India with his family.
On his way he died on board the ship.
According to the prosecution that passport came into the hands of the appellant.
Bakshi Singh desired to go to the United Kingdom, but had no passport.
The appellant agreed to arrange his journey and also for that purpose to obtain a passport for him.
The allegation was that the appellant prepared an applica tion for a visa in the name of Bakshi Singh.
It was further alleged that with a view to procure the said visa the photograph of the said deceased Jivansingh was removed from the said passport and that of Bakshi Singh substituted.
The visa having in this fashion been obtained, Bakshi Singh journeyed to the United Kingdom having on his way made some intermediate halts.
The British authorities suspected that the, passport was a forged document and repatriated Bakshi Singh to India.
On his arrival he was handed over to the Special Police, Bombay.
The Special Police carried out investigation in the course of which they recorded statements of certain witnesses including that of Tanna Singh, the younger brother of Bakshi Singh.
On completion of the investigation, the police filed a charge sheet before the learned Magistrate.
That charge sheet is not before us.
But counsel for the appellant informed us that Bakshi Singh was therein charged under secs.
419 and 471 read with sec.
468, and the appellant was charged under secs.
419/109, 468 and 471 of the Penal Code.
Counsel also.
informed us that the Magistrate did not examine any witnesses, during the committal 573 proceedings but on a perusal of the charge sheet and the documents filed before him under sec.
173 of the Code of Criminal Procedure he framed the charges and committed, by his order dated September 13, 1968, Bakshi Singh and the appellant for trial before the Sessions Court.
By that order he directed the said Bakshi Singh to stand his trial under secs.
120B, 419, 467 and 471 read with sec.
467, and the appellant under secs.
120B and 467 of the Penal Code.
The offence of criminal conspiracy charged under sec.
120B was that the said Bakshi Singh and the appellant had conspired to forge the said passport for the use of the said Bakshi Singh.
In the High Court various contentions were raised on behalf of the appellant in support of his application under sec.
561A of the Code of Criminal Procedure including that under sec.
196A (2).
That contention was that no consent as required by sec.
196A(2) having been first obtained, the Magistrate had no jurisdiction to take cognizance of the offence of conspiracy, and therefore, the committal order was without jurisdiction and had to be quashed.
In this appeal we are concerned only with that contention as the special leave ranted to the appellant has been limited to that ground alone.
Sub sec.
2 of sec.
196A, which is relevant to the present case, provides that no court shall take cognizance of the offence of criminal conspiracy punishable under sec.
120B of the Penal Code in a case ' inter alia where the object of such conspiracy is to commit any non cognizable offence.
There is no doubt that the charge, as framed by the Magistrate and for which he committed the appellant and Bakshi Singh to stand their trial before the Sessions Court, was for criminal conspiracy, the object of which was to forge the said passport, a non cognizable offence.
In respect of that offence, sec.
196A(2) would undoubtedly apply.
What that section prohibits is taking cognizance of an offence of criminal conspiracy unless consent to the initiation of proceedings against the person charged with it has been first obtained.
As provided by sec.
190 of the Code of Criminal Procedure, a Magistrate may take cognizance of an offence either (a) upon receiving a complaint, or (b) upon a police report, or (c) upon information received from a person other than a police officer or even upon his own information or suspicion that such an offence has been committed.
As has often been held taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence.
Cognizance, therefore, takes place at a point when a magistrate first takes judicial notice of an offence.
This is the position whether the magistrate takes 574 cognizance of an offence on a complaint or on a police report, or upon information of a person other than a police officer.
Therefore, when a magistrate takes cognizance of an offence upon a police report, prima facie he does so of the offence or offences disclosed in such report.
It is not in dispute that the charge sheet submitted by the police officer for the purpose of initiation of proceedings by the magistrate was for offences under sees.
419 and 471 read with sec.
468 against Bakshi Singh and under sees.
419/109, 471 and 468 against the appellant.
The charge sheet admittedly did not refer to or charge either of them with criminal conspiracy under sec.
120B. Prima facie it is not possible to say that at the stage when the police filed the charge sheet the Magistrate took cognizance of the offence, under sec.
120B, for, that was not the offence alleg ed in the charge sheet to have been committed by either of the two accused persons.
True it is that the Magistrate ultimately drew up charges which included the offence under sec.
120B, the object of which was to forge the passport, an offence under sec.
The Magistrate also did not consider it necessary to examine any witnesses and frame the charges on a perusal of the charge sheet submitted to him by the police, the statement of witnesses recorded by the police during their investigation and such other documents as were filed under sec.
173 of the Code of Criminal Procedure &,fore him.
The materials before him, therefore, were the same as were before the police officer who had filed the charge sheet.
But while drawing up the charges and passing his order of committal, the Magistrate considered that though the charge sheet filed before him alleged the commission of offences under secs.
419/109, 471 and 468, the proper charge on the materials before him, although they were the same as before the police officer, warranted a charge of criminal conspiracy for forging a passport.
It is quite clear, however, that the cognizance which he took was of the offences alleged in the charge sheet because it was in respect of those offences that the police had applied to him to initiate proceedings against Bakshi Singh and the appellant and not for the offence under sec.
It was at a later stage, i.e., at the time of passing the committal order that he considered that a charge under sec.
120B was the more appropriate charge and not a charge under sec.
109 of the Penal Code.
That being so, it must be held that the Magistrate took cognizance of the offence of abetment of an offence of forgery and impersonation so far as the appellant was concerned and not of the offence of criminal conspiracy, and therefore, sec.
196A(2) did not apply.
Counsel in this connection relied on certain observations made in a minority judgment of section K. Das, J., in Pramatha Nath 575 Taluqdar vs Saroj Ranjan Sarkar.
(1) The question involved there was, whether a second complaint could be entertained by a magistrate who or whose predecessor had on the same or similar allegations dismissed a previous complaint, and if so, in what circumstances should such a complaint be entertained.
Arising .
out of this question a contention was raised whether on the complaint, as it was framed, the Magistrate had the jurisdiction to, take cognizance of the offences alleged in the complaint in the, absence of a sanction under sec.
The second complaint alleged offences under secs.
467 and 471 read with sec.
109 of the Penal Code.
But in para 5 thereof, there was an allegation as to criminal conspiracy and it was on the basis of that allegation that sec.
196A(2) was sought to be involved.
It was in this connection that the learned Judge at page 315 of the report, observed : "It would not be proper to decide the, question of sanction me rely by taking into consideration the offences mentioned in the heading or the use of the expression " criminal conspiracy" in para, 5.
The proper test should ' be whether the allegations made in the petition of complaint disclosed primarily and essentially an offence or offences for which a consent in writing would be necessary to the initiation of the proceedings within the meaning of section 196A(2) of the Code of Criminal Procedure.
It is from that point of view that the petition of 'complaint must be examined.
" The learned Judge ultimately held that though the offence of criminal conspiracy was alluded to in para 5 of thesaid complaint, the offence "primarily and essentially" chargedwas abetment by conspiracy under sec.
109 of the Penal Code, and therefore.
no consent under sec.
196A(2) was required.
In Biroo Sardar vs Ariff (2) the view also taken was that itis not the, sections referred to which matter but the offence prima facie disclosed.
Following that decision, the High Court of Bombay in Ramchandra vs Emperor(3) observed that the question whether sanction is necessary or not depends not on the sections referred to in a complaint but the offence prima facie disclosed '.
by the facts alleged in it.
It is clear from the charge sheet submitted to the magistratethat the offence of criminal conspiracy was not even referred to.
The offence "primarily and essentially" alleged therein was oneof abetment of forgery under secs.
468 and 471 and of false, (1) [1962] Supp. 2 S.C.R. 297.
(2) A.I.R. 1925 Cal.
(3) A.I.R. 1939 [Bom.] 129.
576 impersonation under sec.
419 read with sec.
Assuming that the Magistrate before taking cognizance had persued the statements of witnesses recorded by the police during investigation, it was conceded by counsel, after he himself had gone through them from the record, that none of the witnesses had alleged therein either directly or indirectly of the appellant having entered into a criminal conspiracy with Bakshi Singh for forging the passport.
It cannot be disputed that the charge sheet also prima facie disclosed the offence of abetment.
That being so, it is ,impossible to sustain the argument that the Magistrate took cognizance of the offence under sec.
120B, and therefore, consent under sec.
196A(2) was required as a condition precedent or that the committal order and the proceedings for committal which be took were vitiated for want of such consent.
The appeal, therefore, fails and is dismissed.
V.P.S. Appeal dismissed.

summary/full:
The police filed a charge sheet against the appellant and another for various offences in connection with the fabrication of a British passport.
The offences mentioned in the charge sheet against the appellant were sections 419/109, 468 and 471, I.P.C., and against the other accused sections 419 and 471 read with section 468.
The Magistrate did not examine any witnesses, but after perusing the charge sheet and other documents filed before him under section 173, Cr.P.C., framed charges against the two accused and committed them for trial before the Sessions Court.
The charges against the accused included the offence under section 120B, I.P.C., the object of the conspiracy being, to commit the non cognizable offence of forging the passport.
The appellant filed an application in the High Court for quashing the committal order on the ground that no consent, as required by section 196A(2), Cr.
P.C., having been obtained, the Magistrate had no jurisdiction to take cognizance of the offence of conspiracy.
The High Court dismissed the application.
Dismissing the appeal to this Court, HELD : (1) Cognizance takes place when the Magistrate takes judicial notice of an offence.
Therefore, when a Magistrate takes cognizance of an offence under section 190, Cr.
P.C. upon a police report, prima facie he does so of the offences alleged in the report.
[573 H; 574 A] In the present case the charge sheet did not refer to or charge either of the accused with criminal conspiracy.
The cognizance which the Magistrate took was therefore, only, of the offences alleged in the chargesheet, and it was only at the later stage of passing the committal order that he considered that a charge under section 120B was more appropriate than that of abetment.
[574 F H] (2) Even on the basis that it is not the sections referred to in the charge sheet that matter, but the offence prima facie disclosed by the allegations, in the present case the offence 'primarily and essentially disclosed in the charge sheet and other documents was one of abetment of forgery and of the false impersonation.
[575 F H] Therefore, the Magistrate did not take cognizance of the offence under section 120B, I.P.C., and hence, consent under section 196A(2) Cr.
P.C., was not a condition precedent.
[576 B C]