judgement:
Civil Appeal Nos.
4904 4908 of 1984.
From the Judgment and Order dated 19.9.83 of the Bombay 376 High Court in Special Civil Application Nos.
97B/80, 98B/80, 100B/80, 99B/80 and 67B/80.
VA Bobde, K.J. John and Ms. N. Srivastava for the appellant.
F.S. Nariman, Miss A. Subhashini M.S. Usgaocar, S.K. Mehta, P.N. Puri and M.K. Dua for the respondents.
The Judgment of the Court was delivered by DESAI, J.
Special leave granted.
Again the rigmarole of an utterly unsustainable preliminary objection, and valuable time of a decade is wasted in this bizarre exercise frustrating the search for socio economic justice, making it a distant dream, if not an optical illusion.
The Central Government as an appropriate Government referred the Industrial dispute between the appellant Goa Sampling Employees ' Association ( 'Association ' for short) and the first respondent ( 'employer ' for short) in each petition under Sec.
10 (1) (d) of the ( 'Act ' for short) to the Central Government Industrial Tribunal No. 2, Bombay by different orders made in the year 1974 and 1975.
Five separate references were made because even though the Association representing employees is common in all references, employer is different but each raising a common question.
When the references came up before the Tribunal for hearing, it appears that the employer in each case raised a preliminary objection but what was the earliest preliminary objection eluded us.
The Tribunal overruled the preliminary objection whereupon the employer filed some appeal to an authority which is not made clear in the record.
It appears the matters were remitted to the Tribunal and thereafter all the five references stood transferred to the Central Government Industrial Tribunal No. 1 ( 'Tribunal ' for short).
When the references again came up before the Tribunal for hearing, the history repeated.
A preliminary objection was raised that the Central Government was not the appropriate Government in relation to the industrial dispute between the Association and the employer and therefore, the Central Government had no power under Sec.
10 (1) (d) of the to make the reference 377 and accordingly the Tribunal will have no jurisdiction to entertain A the same.
The Association attempted to repell this contention by urging that the workmen were dock workers within the meaning of the expression in and as they are working in a major port, the Central Government will be the appropriate Government in relation to the industrial dispute between the Association and the workmen and therefore, the reference is valid and the Tribunal should deal with the same on merits according to law.
As a second string to the bow, it was contended that in relation to a union territory Central Government is the appropriate Government.
It appears that evidence was led before the Tribunal by both the sides.
The Tribunal after exhaustively examining the evidence held that the workmen covered by the reference would be comprehended in the definition of expression 'Dock Workers ' as defined in the and as they were working at Mormugao Port which is a major port, in respect of the industrial dispute raised by them the Central Government would be the appropriate Government.
The Tribunal then proceeded to examine whether the reference would be competent on the assumption that the employees are not covered by the expression 'Dock Workers ' and held that the work performed by the employees is in a major port and the dispute arise out of the duty performed and work rendered in the major port and therefore, the Central Government would be the appropriate Government to make the necessary reference.
The Tribunal then proceeded to consider the alternative submission whether the reference would be competent even if the State Government is the appropriate Government in view of the fact that Goa, Damen and Diu constitute Union Territory as set out in the First Schedule to the Constitution and its administration is carried on by the Administrator appointed by the President under article 239 of the Constitution.
Therefore, also the Central Government is the appropriate Government.
After discussing the rival contentions the Tribunal did not record a finding on this contention.
The Tribunal overruled the preliminary objection and set down the reference for final hearing by its order dated July 14, 1980.
The employer in each reference filed special civil application under article 227 of the Constitution in the High Court of Judica 378 ture at Bombay.
All the five special civil applications came up before the Panaji Bench of the Bombay High Court for final hearing and they were disposed of by a common judgment The High Court held that the iron ore samplers, the workmen represented by the appellant association are not involved in any work connected with or related to a major port.
The High Court further held that the industrial dispute in which iron ore samplers are involved is not an industrial dispute concerning the major port within the meaning of Sec 2 (a) (i) of the nor are the workmen comprehended in the expression 'Dock Workers ' as defined in the and therefore the Central Government is not the appropriate Government for referring the industrial dispute to the Tribunal.
Dealing with the second limb of the submission that the Central Government itself can be said to be the State Government for the Union Territory of Goa, Daman and Diu, the High Court held that the Central Government is not the State Government for the Union Territory of Goa, Daman and Diu under Sec 2 (a) (ii) of the but it is the administrator appointed under Art, 239 of the Constitution of India who is the State Government for the Union Territory of Goa Daman and Diu and he is the appropriate Government within the meaning of Sec. 2 (a) of the .
The High Court felt that if the Central Government is also held to be the State Government for this purpose there would be two State Governments for the Union Territory of Goa, Daman and Diu and this would lead to utter confusion: The High Court accordingly concluded that the Administrator is the appropriate Government for the purpose of Sec 2(a) of the and therefore the Central Government was not the appropriate Government and had no jurisdiction to make the impugned references.
In accordance with this finding, the High Court made the rule absolute quashing the references.
Hence these appeals by special leave.
The question that must engage our attention is whether in relation to the industrial dispute between the employees represented by the Association and the employer which is the appropriate Government which can exercise power under Sec.
10 of the .
10 provides that 'where the appropriate Government is of opinion that any industrial dispute exists or is 379 apprehended, it may at any time by order in writing refer the dispute etc.
to a Tribunal for adjudication. ' There are two A provisos to the section.
which are not material for the present purpose.
Thus the power is conferred on the appropriate Government to make the reference for adjudication of an industrial dispute which either exists or is apprehended. 'Appropriate Government ' is defined in Sec. 2 (a) of the to mean C(i) in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government (omitting the words not relevant for the present purpose), a major port.
The ( central Government, and (ii) in relation to any other industrial dispute, the State Government. ' The employer contended that the employees represented by the Association in each case are iron ore samplers and they are not connected with the work of a major port or their duties are not ancillary or incidental to the working of a major port and therefore, Sec. 2 (a) (i) would not be attracted.
As a corroleory, it was submitted that the case would fall in the residuary clause (ii) and therefore, the State Government would be the appropriate Government.
The employees repelled the contention by saying that they are employees working in a major port and the industrial dispute directly touches the functioning and administration of a major port and therefore, the Central Government is the appropriate Government.
Alternatively it was contended on behalf of the Association/appellant herein that any rate in relation to a Union Territory, there is no State Government and the Central Government, if it at all can be said to be one, is the only Government and in the absence of a State Government the Central Government will also have all the powers of the State Government and therefore, the Central Government would be the appropriate Government for the purpose of making the reference.
It is the second limb which we propose to examine in these appeals because in our opinion it goes to the root of the matter and the appeals can be finally disposed of by answering this contention.
Before we deal with the contention on merits, it is necessary to focus attention on constitutional and statutory provisions relevant to the contention.
380 article 239 (1) provides that 'save as otherwise provided by Parliament by law, every Union Territory shall be administered by the President acting, to such extent as he thinks fit through an Administrator to be appointed by him with such designation as he may specify. ' article 239A which was inserted by the Constitution (Fourteenth Amendment) .
1962 confers power Parliament by law to create local legislatures or Council of Ministers or both for certain Union Territories including Goa, Damen and Diu.
The law by which the local legislature and/or Council of Ministers are created will also specify their constitution, powers and functions in each case.
By sub art.(2) it was ensured that such law when enacted shall not be deemed to be an amendment of the Constitution for the purpose of article 368.
article 240 confers power on the President to make regulations for the peace, progress and good government of the Union Territories specified therein.
article 246 (4) provides that 'Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List. ' The expression 'Central Government ' has been defined in Sec. 3 (8) of the (omitting the words not relevant for the present purpose) as under: "(8) "Central Government" shall (a) . . . ; . . . . . . . (b) in relation to anything done or to be done after the commencement of the Constitution, mean the President, and shall include, (i) (ii) (iii) in relation to the administration of a Union Territory, the administrator thereof acting within the scope of the authority given to him under Article 239 of the Constitution.
" The expression 'State Government ' is defined in Sec. 3 (60) (omitting the words not necessary for the present purpose,) as under: "(60) "State Government", 381 (a) . . . . . . (b) . . . . . . . (c) as respects anything done or to be done after the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean, in a State, the Governor, and in a Union Territory, the Central Government ;" The expression 'Union Territory ' is defined in Sec. 3 (62A) to mean "Union Territory specified in the First Schedule to the Constitution and shall include any other territory comprised within the territory of India but not specified in that Schedule.
" Parliament enacted the ( '1963 Act ' for short).
Its long title reveals the object underlying the enactment, namely to provide for Legislative Assemblies and Council of Ministers for certain Union Territories and for certain other matters.
Union Territory of Goa, Daman and Diu is governed by the 1963 Act (See Sec.
The expression 'Administrator ' has been defined in Sec. 2 (a) of the 1963 Act to mean 'the Administrator of a Union Territory appointed by the President under article 239. ' Sec.
18 specifies the extent of legislative power of the Legislative Assembly of a Union Territory to encompass any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule.
44 provides that there shall be a Council of Ministers in each Union territory with the Chief Minister at the head to aid and advise the Administrator in exercise of his functions in relation to matters with respect to which the Legislative Assembly of the Union Territory has power to make laws except in so far as he is required by or under the Act to act in his discretion or by or under any law to exercise any judicial or quasi judicial functions.
There is a proviso to Sec 44 (1) which sheds light on the position of the Administrator and powers of the Council of Ministers.
According to the proviso in the event of a difference of opinion between the Administrator and the Ministers of any matter, the Administrator shall refer it to the President for decision given therein by the President etc.
Thus the executive power of the Administrator extends to all subjects covered by the legislative power.
But in the event of a difference of opinion the President 382 decides the point.
When President decides the point, it is the Central Government that decides the point.
And that is binding on the Administrator and also the Ministers.
Section 45 provides that 'the Chief Minister of a Union Territory shall be appointed by the President. ' Section 46 confers power on the President to make rules for the conduct of business.
Section 55 provides that 'all contracts in connection with the administration of a Union Territory are contracts made in the exercise of the executive power of the Union and all suits and proceedings in connection with the administration of a Union Territory shall be instituted by or against the Government of India. ' In exercise of the power conferred by Article 240, the President has infer alia enacted the Goa, Daman and Diu (Laws) Regulation, 1962.
By clause (3) of the regulation, the Acts enumerated in the Schedule appended to the Act were extended to the Goa, Daman and Diu subject to the modifications, if any, specified in the Schedule.
The Schedule includes as a whole without any modification.
Section 10 (l) of the Act confers power on the appropriate Government to refer an industrial dispute for adjudication to one or the other of the various authorities enumerated in the section.
Thus the power is the power of the appropriate Government to make the reference.
The cotention which found favour with the High Court is that in relations to the industrial dispute raised by the workmen represented by the Association by broadly described as iron ore samplers.
the appropriate Government is the State Government and not the Central Government and that as the reference in this case is made by the Central Government, the same being without jurisdiction, the Industrial Tribunal did not acquire any jurisdiction to adjudicate upon the same.
Would it be constitutionally correct to describe Administration of a Union Territory as State Government ? Article 1 provides that 'India, that is Bharat, shall be a Union of States '.
Sub article (2) provides that 'the States and the territories thereof shall be as specified in the First Schedule ' Sub article (3) introduced a dichotomy between the State as understood in the Constitution and the Union Territory when it provides that 'the territory of India shall comprise (a) the territories of the States, and (b) the Union Territories specified in the First Schedule.
The provisions of Part 383 VI of the Constitution do not apply to the Union Territories.
Part VI of the Constitution which deals with States clearly indicates that A the Union Territory is not a State.
Therefore, the Union Territory constitutionally speaking is something other than a State.
As far as the States are concerned, there has to be a Governor for each State though it would be permissible to appoint the same person as Governor of two or more States.
Part VIII provides for administration of Union Territories.
Article 239 conferred power on the president for administration of Union Territories unless otherwise provided by an act of Parliament.
Therefore, apart from the definitions of the expressions 'Central Government ', 'State Government ' and 'Union Territory ' as enacted in the , the Constitution itself makes a distinction between State and its Government called the State Government and Union Territory and the Administration of the Union Territory.
Unless otherwise clearly enacted, the expression 'State will not comprehend Union Territory ' and the 'State Government ' would not comprehend Administration of Union Territory.
Now if we recall the definition of three expressions 'Central Government ' (Section 3 (8), 'State Government ' (Section 3 (60)) and Union Territory ' ( Section 3 (62A)) in the , it would unmistakably show that the framers of the Constitution as also the Parliament in enacting these definitions have clearly retained the distinction between State Government and Administration of Union Territory as provided by the Constitution.
It is especially made clear in the definition of expression 'Central Government ' that in relation to the Administration of a Union Territory, the Administrator thereof acting within the scope of the authority given to him under Article 239 of the Constitution, would be comprehended in the expression 'Central Government '.
When this inclusionary part is put in juxta position with exclusionary part in the definition of the expression 'State Government ' which provides that as respects anything done or to be done after the commencement of the Constitution (Seventh Amendment) Act, 1956, it shall mean, in a State, the Governor, and in a Union Territory, the Central Government, the difference conceptually speaking between the expression 'State Government ' and the 'Administration of a Union Territory ' clearly emerges.
Therefore, there is no room for doubt that the expression 'Administration of a Union Territory ', Administrator howsoever having been described, would not be comprehended in the expression state Government ' as used in any enactment.
These definitions have been modified to being them to their present format by 384 adaptation of laws (No. 1) Order 1956.
Section 3 of the provides that in all General Acts and Regulations made after the commencement of the Act unless there is anything repugnant in the subject or context, the words defined therein will have the meaning assigned therein.
lndisputably the lndustrial Disputes Act, 1947 is ' a Central Act enacted after the commencement of the and the relevant definitions having been recast to meet the constitutional and statutory requirements, the expressions 'Central Government, 'Stale Government ' and 'Union Territory ' must receive the meaning assigned to each in the unless there is anything repugnant in the subject or context in which it is used.
No such repugnancy was brought to our notice.
Therefore, these expressions must receive the meaning assigned to them.
The High Court after referring to the definitions of the aforementioned three expressions as set out and discussed herein first observed that on a careful reading of the definition, it appears 'that in relation to the administration of a Union Territory, the administrator thereof acting within the scope of the authority given to him under Article 239 of the Constitution is the Central Government. ' So far there is no dispute.
The High Court then observed that it must follow that the Administrator is the State Government in so far as the Union Territory is concerned, and it is so provided in the definition of the State Government in Section 3(60) of the . ' The High Court fell into an error in interpreting clause (c) of Section 3 (60) which upon its true construction would show that in the Union Territory, there is no concept of State Government but wherever the expression 'State Government ' is used in relation to the Union Territory, the Central Government would be the State Government.
The very concept of State Government in relation to Union Territory is obliterated by the definition.
Our attention was, however, drawn to the two decisions of this Court in Satya Dev Bushahri vs Padam Dev & Ors.
( ') and the decision of this Court in The State of Madhya Pradesh vs Shri Moula Bux & Ors.(2) in which with reference to Part States, some observations have been made that the authority conferred under Article 239, as it then stood, to administer Part States has (1) ; (2) ; 385 not effect of converting those States into the Central Government, and that under Article 239 the President occupies in regard to Part States, a position analogous to that of a Governor in Part A States and of a Rajpramukh in Part in States. ' It was also observed that 'though the Part States are centrally administered under the provisions of Article 239, they do not cease to be States and become merged with the Central Government. ' It was then urged that by the amendment to Articles 239 and 240 by the Constitution (Seventh Amendment) Act, 1956 and introduction of Article 239 A and 239 by the Constitution (Fourteenth Amendment) Act, 1962, only the nomenclature of the Part States has undergone a change, now being described as Union Territory, but the position the Union Territory is the same as it was as Part States and therefore, the view taken in the aforementioned decisions that the administration of Part States could appropriately be described as State Government would mutatis mutandis apply to the administration of Union Territories.
In other words, it was said that they can be appropriately described as State Governments for various purposes.
Both the decisions were rendered prior to the amendment of Part VIII of the Constitution in 1956 and the insertion of the Articles 239 A and 239 in 1962 and more specifically after the enactment of the 1963 Act.
The concept of Union Territory with or without a Legislative Assembly and with or without a Council of Ministers with specified legislative and executive powers have been set out in the 1963 Act.
Coupled with this, modifications were made in the definitions of aforementioned three expressions.
Therefore, the two decisions are of no assistance in resolutation of the present controversy.
It was then pointed out that the definition of the expression 'appropriate Government ' in Section 2(a)(i) of the Act unless it is shown in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government or the enumerated industries or a banking or an insurance company, a mine, an oilfield, a Cantonment Board, or a major port, the appropriate Government will be the Central Government and in any other case a State Government It was therefore, submitted that unless it is shown that in relation to the industrial dispute raised by the Association, the appropriate Government would be the Central Government, the case would fall under the residuary provision, namely, that in relation to any other industrial dispute, the appro 386 priate Government would be the State Government.
The submission does not commend to us because before one can say that the appropriate Government is the State Government in relation to an industrial dispute, there has to be some State Government in which power must be located for making the reference.
If there is no State Government but there is some other Government called the Administration of Union Territory, the question would arise whether in such a situation the Administration of Union Territory should be described as State Government for the purpose of Section 2(a)(i) read with Section 10(1) ? The High Court clearly fell into an error when it observed that the inclusive definition of the expression 'State Government ' does not necessarily enlarge the scope of the expression, but may occasionally point to the contrary.
Let as assume it to be so without deciding it.
But where the High Court fell into the error was when it held that the President representing the Central Government and the Administrator, and appointee of the President and subject to all orders of the President constitute two different governments for a Union Territory.
The position, the power, the duties and functions of the Administrator in relation to the President have been overlooked.
On a conspectus of the relevant provisions of the Constitution and the 1963 Act, it clearly transpires that the concept of State Government is foreign to the Administration of Union Territory and Article 239 provides that every Union Territory is to be administered by the President.
The President may act through an administrator appointed by him.
Administrator is thus the delegate of the President.
His position is wholly different from that of a Governor of a State.
Administrator can differ with his Minister and he must then obtain the orders of the President meaning thereby of the Central Government.
Therefore, at any rate the administrator of Union Territory does not qualify for the description of a State Government, Therefore, the Central Government is the 'appropriate Government '.
If the Central Government as the appropriate Government has made the reference, the High Court was clearly in error in quashing the reference.
Learned counsel for the appellant Association made an alter native submission that the workmen involved in the dispute are workmen working in a major port and are dock workers and there 387 fore, also the Central Government will be the appropriate Government for the purpose of making reference under Sec.
10(1).
This contention found favour with the Tribunal.
The High Court reached a contrary conclusion observing that the iron ore samplers are not involved in any work connected with or related to a major port nor are they dock workers.
We do not propose to examine this alternative submission because if the reference is held to be competent, it is not necessary to undertake elaborate examination of the second contention to sustain the reference.
It is, however, urged that this aspect is likely to figure again before the Tribunal while examining the industrial dispute referred to it for adjudication on merits.
In this situation the proper thing is to keep the contention between the parties open.
The Tribunal will be at liberty to examine this contention whether iron ore samplers are involved in any work connected with or related to a major port or are dock workers.
The Tribunal may come to its own decision uninfluenced by the view taken by the High Court and if the question does require examination the same will have to be examined over again.
Accordingly, all these five appeals are allowed and the judgment of the High Court is quashed and set aside and the award of the Tribunal on the preliminary point especially about the competence of the Central Government to make the reference under Section 10(1) of the , for the reasons hereinmentioned is confirmed.
The respondents shall pay the costs of the appellant in each case quantified at Rs. 1,000 in all Rs. 5,000 shall be paid by the respondents to the appellant as costs.
As the dispute is an old one, hanging resolution for years, the Tribunal is directed to give top priority to it and dispose it of on merits within a period of six months from today, N.V.K. Appeals allowed.

summary/full:
The Central Government as an 'appropriate Government ' referred the Industrial dispute between the Appellant employees ' Association and the first Respondent employer in each of the Appeals under Sec.
10 (1) (d) of the to the Central Government Industrial Tribunal.
A preliminary objection was raised that the CENTRAL Government was not the 'appropriate Government ' in relation to the said industrial disputes and consequently the Central Government had no power under Sec.
10 (l) (d) of the Act to make the five references and that the Tribunal would have no jurisdiction to entertain the same The Appellant Association repelled this objection by contending that the workmen were 'dock workers ' within the meaning of the expression in the and as they were working at Mormugao Port, a major port in the Union Territory of Goa, Daman Diu, the Central Government would be the 'appropriate Government ' in relation to the industrial dispute and consequently the references were valid and competent.
374 The Tribunal held that the workmen covered by the reference who were iron Ore samplers were 'dock workers ' as defined in the and as they were working in a major port, in a Union Territory, the Central Government would be the 'appropriate Government ' for referring the industrial dispute.
The Tribunal over ruled the preliminary objection and set down the references for final hearing.
The first respondent employers filed applications under Article 227 in the High Court which held that the workmen, who were iron ore samplers, were neither comprehended in the expression 'dock workers ' as defined in the .
nor involved in any work connected with or related to a major port.
and were not involved in an industrial dispute concerning a major port and therefore the Central Government was not the appropriate Government ' for referring the industrial dispute.
It further held that the Central Government is not the State Government for the Union Territory of Goa, Daman and Diu under Section 2 (a) (i) of the but it is the Administrator appointed under Article 239 and therefore the Central Government was not the 'appropriate Government ' and had no jurisdiction to make the references.
The rule was made absolute and the references quashed.
Allowing the Appeals to this Court, ^ HELD: 1.
The Central,Government as the 'appropriate Government had made the references The High Court was clearly in error in quashing the references.
The judgment of the High Court is quashed and set aside and the award of the Tribunal on the preliminary point about the competence of the Central Government to make the reference under Section 10(1) of is confirmed.
The tribunal will be at liberty to examine the contention whether iron ore samples are involved in any work connected with or related to a major part or are dock workers and come to its own decision uninfluenced by the view taken by the High Court.
As the dispute is an old one, the Tribunal is to give top priority and dispose of the matter within a period of six months.
[386G; 387D E, C] 2 (i) Indisputable the is a Central Act enacted after the commencement of the and the relevant definitions having been recast to meet the constitutional and statutory requirements the expressions 'Central Government, 'State Government ',and 'Union Territory ' must receive the meaning assigned to each in the unless there is anything repugnant in the subject or context in which it is used.
No. such repugnancy was brought to the notice of the Court.
[384B C] (ii) On a conspectus of the relevant provisions of the Constitution and the Union Territories Act 1963, it clearly transpires that the concept of State Government is foreign to the administration of Union Territory and Article 239 provides that every Union Territory is to be administered by the President.
The President may act through an Administrator appointed by him.
Administrator is thus the delegate of the President.
His position is wholly different from that 375 Of a Governor of a State.
Administrator can differ with his Minister and he must then obtain the orders of the President meaning thereby of the Central A Government.
The Administrator of Union Territory does not therefore qualify for the description of a State Government.
The Central Government is therefore the 'appropriate Government ' [384F G] (iii) The High Court fell into an error in interpreting clause (c) of Section 3 (60) of the which upon its true construction would show that in the Union Territory there is no concept of State Government but wherever the expression 'State Government ' is used in relation to the Union Territory, the Central Government would be the State Government.
The very concept of State Government in relation to Union Territory is obliterated by the definition.
[383D H] Satya Dev Bushahri vs Padam Dev & Ors., ; and the State of Madhya Pradesh v, Shri Moula Bux & Ors. ; , held inapplicable.
(i) The definition of three expression 'Central Government ' (Section 3 (8), 'State Government ' (Section 3 (60)), and Union Territory ' (Section 3 (62A)) in the Would unmistakably show that the framers of the Constitution as also the Parliament in enacting these definitions have clearly retained the distinction between State Government and Administration of Union Territory as provided by the Constitution.
It is especially made clear in the definition of expression 'Central Government ' that in relation to the Administration of a Union Territory the Administrator thereof acting within the scope of the authority given to him under Article 239 of the Constitution.
would be comprehended in the expression 'Central Government.
When this inclusionary part is put in juxtaposition with exclusionary part in the definition of the expression State Government ' which provides that as respects anything done or to be done after the commencement of the Constitution (Seventh Amendment) Act, 1956, it shall mean, in a State, the Governors and in a Union Territory, the Central Government, the difference conceptually speaking between the expression ' State Government ' and the 'Administration of a Union Territory ' clearly emerges There is no room for doubt that the expression Administration of a Union Territory ', Administrator however having been described, would not be comprehended in the expression State Government as used in any enactment These definitions have been modified to bring them to their present form at by the Adaptation of Laws (No.1) Order, 1956.
[386E G] (ii) The High Court clearly fell into an error when it observed that the inclusive definition of the expression 'State Government, does not necessarily enlarge the scope of the expression but may occasionally point to the contrary; [386C]


judgement:
Civil Appeal No.2139 of 1970.
From the Judgment and Decree dated August 25, 1969 of the High Court of Bombay in Appeal No. 406 of ]964 from Original n Decree.
N. H. Hingorani, Mrs. K. Hingorani and Mrs. Rekha Pandey for the Appellant.
O. P. Sharma and Miss. ,4.
Subilashini for the Respondent.
The Judgment of the Court was delivered by VENAKTARAMIAH, J.
This appeal by Special Leave involves the question whether the provisions of the (Act XIX of 1952) (herein after referred to as 'the Act ') were applicable on the date of the suit out of which this appeal arises to the factory which was purchased by the appellant in the year 1955 in certain liquidation proceedings.
Prior to December, 1954 a company called 'Hirji Mills Ltd. ' was carrying on the business of manufacture and sale af textile goods in its factory situated at Fergusson Road, Lower Parel, Bombay.
That company was ordered to be wound up by the High Court of Bombay and its assets were ordered to be sold by the Official Liquidator.
At the sale held by the Official Liquidator, the appellant which was a Public Limited Company, purchased the above said factory.
It is stated that the workmen had been discharged earlier and the goodwill of the company in liquidation had not been 519 acquired by the appellant.
There was discontinuance of the work of A the factory for some time.
The appellant restarted the factory on November 12, 1955.
The appellant claims that it invested some fresh capital in the business, renovated the machinery and also employed workmen on fresh contracts though about 70 per cent of the workmen were formerly working in that factory.
It is also contended that the appellant commenced to produce certain new types of goods at the factory after obtaining a new licence to run it.
When by the end of February, 1956 the Regional Provident Fund Commissioner made certain enquiries about the working of the factory in order to enforce the Act against it, the appellant wrote to him stating that the factory was an infant factory as it had established it on November 12, 1955 and the period of three years had not elapsed from that date.
The appellant claimed exemption from the operation of the Act relying upon section 16 (1) (b) thereof.
When the Regional Provident Fund Commissioner was not convinced about its explanation the appellant filed a writ petition under Article 226 of` the Constitution before the High Court of Bombay in Miscellaneous Application No. 76 of 1957 challenging the applicability of the Act to the factory.
That petition was, however, withdrawn.
Later on the appellant filed a suit before the City Civil Court at Bombay in Short Cause Suit No. 2088 of 1958 for a declaration that the Act and the scheme framed thereunder could not be enforced against the factory until the expiry of three years from November 12, 1955 and that the appellant was not liable to make any contributions under the Act.
The appellant also prayed for an injunction against the Regional Provident Fund Commissioner restraining him from enforcing the Act against the factory.
The suit was resisted by the Regional Provident Fund Commissioner.
He contended that the Act was applicable to the factory when it was in the hands of Hirji Mills Ltd. (the company under liquidation) and hence it did not cease to apply merely because there was discontinuance in the working of the factory for a short period and there was change Of ownership.
It was also pleaded that the factory could not be treated as having been newly established on November ' 2, 1955 and hence the exemption under section 16 (1) (b) of the Act was not available.
The trial court dismissed the suit with costs.
The trial court while negativing the contention of the appellant observed thus: "If a factory was closed down and after it had gone into liquidation the factory is dismantled by the liquidator and the liquidator sold the various assets as scrap it would be a different matter but in the present case having regard to the recitals in the Deed of Conveyance dated 5th December 1955 520 exhibit A it cannot be disputed that the Plaintiffs have in fact purchased all the assets (a) lands, hereditaments and premises, (b) buildings, godowns, structures and sheds and (c) the plant and machinery and other movables from Hirji Mills (in Liquidation) and Official Liquidator and others and what is more after making such purchase they have been utilizing the said same assets particularly same factory premises and same plant and machinery with a few additions to carry on the same business, namely, manufacturing textile goods which was carried on by that factory when it was owned by Hirji Mills Ltd. with 65 to 70 per cent of the old staff and workmen of Hirji Mills Ltd. From these facts it cannot be said that the intention while effecting the transfer of all the several assets from the former owners to the owners was that the old factory should become defunct or non existent and a new factory was intended to be established.
On the contrary these facts affirm the continuity of the established factory, notwithstanding the fact that the plaintiffs did not purchase it as a going concern.
" The trial court held that in view of the several facts established in the case it could not be presumed that a new factory was established by the appellant on November 12, 1955.
It on the other hand held that the continuity of the old factory had not broken and as such the appellant was liable to make contributions under the Act.
The judgment of the trial court was affirmed by the Bombay High Court in Appeal No. 406 of 1964.
This appeal by Special Leave is filed against the judgment of the High Court.
The facts established in this case are that Hirji Mills Ltd. had been carrying on the business of manufacture of textile goods in the factory` from the year 1931 upto the date of the winding up order which was made on December 17, 1954 and there was stoppage of manufacturing activity in`the factory till November 12, 1955 on which date it was recommenced by the appellants.
The points for consideration are whether in the circumstances in which the appellant came to acquire the factory there was the extinction of the old factory and the establishment of a new factory on November 12, 1955 and whether it could be said that the Act had ceased to apply to the factory on the stoppage of the manufacturing process in it owing to the winding up order.
521 At the outset it has to be stated that the Act has been brought A into force in order to provide for the institution of provident funds for the benefit of the employees in factories and establishments.
Article 43 of the Constitution requires the State to endeavour to secure by suitable legislation or economic organisation or in any other way to all workers, agricultural, industrial or otherwise among others conditions of work ensuring a decent standard of life and full enjoyment of leisure.
The provision of the provident fund scheme is intended to encourage the habit of thrift amongst the employees and to make available to them either at the time of their retirement or earlier, if necessary, substantial amounts for their use from out of the provident fund amount standing to their credit which is made up of the contributions made by the employers as well as the employees concerned.
Therefore, the Act should be construed so as to advance the object with which it is passed.
Any construction which would facilitate evasion of the provisions of the Act should as far as possible be avoided.
Section 1 (3) of the Act during the relevant period declared that subject to section 16 thereof, it applied to every establishment which a factory engaged in any industry specified in Schedule I thereof and in which fifty or more persons were employed.
The material part of section 16 of the Act as it stood at the relevant time alongwith the marginal note read as follows: " 16, Act not to apply to factories belonging to Government or Local Authority and also to infant factories F (1) This Act shall not apply to (a) any factory belonging to the Government or a local authority; and (b) any other factory, established whether before or after the commencement of this Act, unless three years have elapsed from its establishment.
Explanation: For the removal of doubts, it is hereby declared that the date of the establishment of a factory shall not be deemed to have been changed merely by reason of a change of the premises of the factory. " 522 The Act being a beneficent statute and section 16 of the Act being a clause granting exemption to the employer from the liability to make contributions, section 16 should receive a strict construction.
If a period of three years has elapsed from the date of the establishment of a factory, the Act would become applicable provided other conditions are satisfied.
The criterion for earning exemption under section 16(1) (b) of the Act is that a period of three years has not yet elapsed from the date of the establishment of the factory in question.
It has no reference to the date on which the employer who is liable to make contributions acquired title to the factory.
The Act also does not state that any kind of stoppage in the working of the factory would give rise to a fresh period of exemption.
The work in a factory which is once established may be interrupted on account of factory holidays, strikes, lock outs, temporary breakdown of machinery, periodic repairs to be effected to the machinery in the factory, non availability of raw materials, paucity, of finance etc.
It may also be interrupted on account of an order of court like the one we are confronted with in this case.
Interruptions in the running of a factory which is governed by the Act brought about by any of the reasons mentioned above without more cannot be construed as resulting in the factory ceasing to be a factory governed by the Act and on its restarting it cannot be said that a new factory is or has been established On the resumption of the manufacturing work in the factory, it would continue to be governed by the Act.
In Chagganlal Textile Mills Pvt. Ltd. vs P.A. Bhaskar(1) on the file of the Bombay High Court which is one of the earliest decisions delivered on the above question (which is unreported), Justice Tendolkar observes thus: "The important point to notice about this provision is that the Act is made applicable to factories and not to P the owners thereof; or, in other words, it applies to factories irrespective of who the owners from time to time may be." The learned Judge proceeds: "The question is whether the order of liquidation and the consequent temporary discontinuance of business until a lease was granted to Kotak and Company has the consequence of making the factory which was established cease (1) Misc.
Appln.
No. 289 of 1956 disposed of on November 5, 1956.
523 to be established.
In my opinion the answer to this question must be in negative.
A temporary cessation of the activities of an established factory cannot lead to the result that the factory ceases to be established for the purposes of the Employees ' Provident Funds Act, for if it did, the class of employers who spare no ingenuity in seeking to deprive the employees of all the benefits conferred upon them by statute would have convenient handle whereby the activities of an established factory have to be discontinued for a few months in order to deprive the employees of the benefits under the Employees ' Provident Funds Act.
I take it that the establishment of a factory involves that the factory has gone into production and no more. but once it goes into production, a temporary cessation of its activities, for whatever reasons that cessation takes place cannot in my opinion, take the factory out of the category of an established factory for the purposes of the Employee 's Provident Fund Act.
" Towards the conclusion of his judgment, the learned Judge says that: ' "Even a complete change in the whole body of employees cannot make a factory which is established, cease to be established.
In any event, the Employees ' Provident Funds Act is a beneficial legislation for the benefit of the employees and every construction of its provisions which would defeat the object of the legislation and lead to an evasion must be rejected, unless the clear language of the Act leaves no option to the Court but to accept such an interpretation.
" The above statement appears to us to lay down the law correctly.
We find that this view has been followed in Messrs Bharat Board Mills Ltd. vs The Regional Provident Fund Commissioner & Ors.,(1) Vegetable Products Ltd. vs Regional Provident Fund Commissioner, W. Bengal & Ors.
,(2) Jamnadas Agarwalla & Anr vs The Regional Provident Fund Commissioner, West Bengal & Ors.,(3) Robindra Textile Mills vs Secretary, Ministry of Labour, Govt.
Of India, New (1) (2) A I.R. (3) 524 Delhi & Anr.(1) and Hindustan Electric Co. vs Regional Provident Fund Commissioner, Punjab & Anr(2), Regional Provident Fund Commissioner Punjab & Anr.
vs Lakshmi Ratten Engineering Works Ltd.(3) (affirmed in item 2 infra).
A similar view has been taken by the Madras High Court in M/s. R.L. Sahni & Co vs Union of India, represented by the Regional Provident Commissioner, Madras & ,Anr (4) in which it was held that it could not be postulated that each time when there was a change of hands, a new establishment came into existence.
In Kunnath Textiles vs Regional Provident fund Commissioner(6) and in The New Ahmedabad Bansidar Mills Pvt.
Ltd. Ahmedabad vs The Union of India &; Ors.(6) also the same view has been taken.
In Lakshmi Ratten Engineering Works vs Regional Provident fund Commissioner, Punjab & Ors (7) which was filed by one of the parties to the appeal before the Punjab High Court in Regional Provident Fund Commissioner, Punjab & Anr.
vs Lakshmi Ratten Engineering Works Ltd (supra) against the judgment rendered therein, this Court has held while affirming the said judgment that the words in section 16 (1) (b) of the Act were quite clear and they left no room for doubt that the period of three years should be counted from the date on which the factory was first established and the fact that there had been a change in the ownership made no difference to the counting of that period This is not a case where the old factory was reduced into scrap and a new factory was erected in its place.
Nor can it be said that there was total discontinuity brought about between the old factory and the factory which was restarted after the appellant purchased it.
The stoppage of production was brought about temporarily as stated earlier by the winding up order and the factory was restarted after it was sold to the appellant by the Official Liquidator.
The finding of fact recorded by the trial court in this case which is affirmed by the High Court clearly establishes that it was the same old factory which recommended production on November 12, 1955.
What is of significance is that a substantial number of workmen (1) A.I.R. 1958 Punjab 55, (2) A.I.R. 1959 Punjab 27.
(3) (4) A.l.
R. (5) (6) A.I.R. 1968 Gujarat 71.
5 7) 1966 I Labour Law Journal 741.
525 and staff who were working under the former management had been A employed by the appellant though it is claimed that they had entered into new contracts of employment.
Mere investment of additional capital or effecting of repairs to the existing machinery before it was restarted, the diversification of the lines of production or change of ownership would not amount to the establishment of a new factory attracting the exemption under section 16 (l) (b) of the Act for a fresh period of three years.
On behalf of the appellant, reliance was placed on the decision of this Court in Provident Fund Inspector, Trivandrum vs Secretary, N.S.S. Co operative Society, Changanacherry.(1) That was a case in which the Secretary of a Co operative Society which owned a press had been acquitted by the Magistrate of the charge of not complying with the provisions of the Act.
The High Court had confirmed the order of acquittal.
On appeal, this Court found that there was no ground to interfere with the acquittal.
The defence of the accused in that case was that the Co operative Society of which he was the Secretary had acquired the press in question in March, 1961 and had established a new press subsequently and hence the Act was not applicable to the press as the period of three years prescribed by section 16 (l) (b) of the Act had not expired The evidence in that case showed that after the purchase, a new owner had come in the place of the former owner, the work of the press was stopped on the date of its sale and was started again after a break of three months, the machinery in the press was also altered and the persons employed previously were not continued in service.
While a fresh recruitment of workmen had taken place, out of those workmen only six happened to be the former employees and compensation had been paid to the workmen at the time of the sale by the former owner.
On these facts it was held that a new establishment had come into existence.
In the case before us, it is seen that about 70 per cent of the former workmen had been employed by the appellant and there was no change of machinery.
Further this is a case where the interruption of work had taken place owing to the order in the winding up proceedings.
It is relevant to state here that this Court in the course of its judgment in the above case did not overrule the decision of the Calcutta High Court in Messrs Bharat Board Mills Ltd. (supra) but only distinguished it.
The facts of that case more or less corresponded to the facts of the case before us.
It is true that this Court in the above decision approved the decision of the (1) ; 526 Madras High Court in Vithaldas Jagannathdas & Anr.
vs The Regional Provident Fund Commissioner, Madras & Anr.(1) but that does not make any difference so far as the case before us is concerned since in the Madras case there was a finding that in reality the old establishment had come to an end and there was a new establishment.
In the case before us, the finding of fact of the trial court is to the contrary.
The learned trial judge has held that the intention in this case was to maintain the continuity of the old factory.
Hence the decision on which reliance is placed being distinguishable on facts is not of much use to the appellant.
In the circumstances, we do not find that there is any infirmity in the judgment under appeal.
The appeal, therefore, fails and is hereby dismissed with costs.
S.R. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
At the sale held by the Official Liquidator under the orders of the Bombay High Court, the appellant a public limited company, purchased the "Hirji Textile Mills" minus its goodwill and its workmen who were discharged earlier.
The appellant invested some fresh capital in the business, renovated the machinery and employed workmen on fresh contracts which included 70% of the workmen formerly working in that factory and commenced to produce certain never types of things at the factory w.e.f. November 12, 1955, after obtaining a new licence to run it.
When by the end of February, 1956 the Regional Provident Fund Commissioner made certain enquiries about the working of the factory in order to enforce the provisions Provident Fund Act against the appellant, the appellant wrote to him stating that The factory was an infant factory having been established on November 12,1955 and the period of three years had not elapsed from that date within the meaning of Section 16(1) (b) of the Act.
When the Regional Provident Fund Commissioner was not convinced about its explanation, the appellant first filed a writ petition under Article 226 of the Constitution before High Court of Bombay in Miscellaneous Application No. 76 of 1957 challenging the applicability of the Act to the factory and after withdrawing it, filed Short Cause Suit No. 2088 of 1958 before the City Civil Court at Bombay for a declaration that the Act and the scheme framed thereunder could not be enforced against the factory until the expiry of three years from November 12, 1955 and that the appellant was not liable to make any contributions under the Act.
The trial Court dismissed the suit holding, that in view of the several facts established in the case it could not be presumed that a new factory was established by the 517 appellant on November 12, 1955, that the continuity of the old factory had A not been broken and as such the appellant was liable to make contributions under the Act.
The judgment of the trial Court was affirmed by the Bombay High Court in Appeal No.406/64.
Hence the appeal by special leave.
Dismissing the appeal, the Court, ^ HELD: 1.1.
Every statute should be construed so as to advance the object with which it is passed and as far as possible, avoiding any construction which would facilitate evasion of the Act.
[521 C] 1.2.
In consonance with the directions enshrined in Article 43 of the Constitution, Employees ' Provident Fund Scheme is intended to encourage the habit of thrift amongst the employees and to make available to them either at the time of their retirement or earlier, if necessary, substantial amounts for their use from out of the provident fund amount standing to their credit which is made up of the contributions made by the employers as well as the employees concerned.
The Act being a beneficent statue and section 16 of the Act being a clause granting exemption to the employer from the liability to make contributions, section 16 should receive a strict construction [521A B, 522A] 2.1.
The criterion for earning exemption under section 16(1)(b) of the Act is that a period of three years has not yet elapsed from the date of establishment of the factory in question.
It has no reference to the date on which the employer who is liable to make contributions acquired title to the factory which once established may be interrupted on account of factory holidays, strikes, lock outs, temporary breakdown of machinery, periodic repairs to be effected to the machinery in the factory, non availability of raw materials, paucity of finance etc., and also on account of an order of court as in the present case.
Interruptions in the running of factory which is governed by the Act brought about by any of these reasons without more cannot be construed as resulting in the factory ceasing to the factory governed by the Act and on its restarting it cannot be said that a new factory is or has been established.
On the resumption of the manufacturing work in the factory it would continue to be governed by the Act which does not state that any kind of stoppage in the working of the factory would give rise to a fresh period of exemption.
In other words the period of three years should be counted from the date on which the factory was first established and the fact that there had been a change in the owners p makes no difference to the counting of period.
[522A D, 524D E] Lakshmi Rattan Engineering Work vs Regional Provident Fund Commissioner, Punjab & Ors.
SC, reiterated.
Chaganlal Textile Mills Pvt.
Ltd. Y.P.A. Bhaskar Misc.
Appln.
No. 289 of 1956 disposed of on November 5, 1956: M/s. Bharat Board Mills Ltd. vs The Regional Provident Fund Commissioner & Ors.
Vegetable Products Ltd. vs Regional Provident Fund Commissioner W. Bengal & Ors. ; Jamnadas Agarwala & Anr.
vs The Regional Provident Fund Commissioner West Bengal & Ors. ; 518 Robindra Textile Mills vs Secretary Ministry of Labour Govt.
of India New Delhi & Anr A.I.R. 1936 Punjab 55.
Hindustan Electric Co. Ltd. vs Regional Provident Fund Commissioner Punjub & Anr.
A I.R 1959 Punjab 27 Regional Provident Fund Commissioner Punjab & Anr.
v Lakshmi Rattan Engineering Works Ltd M/s.
R.L. Sahni & Co vs Union of India represented by the Regional Provident Commissioner Madras & Anr.
A.l.R. ; Kunnath Textile vs Regional Provident Fund Commisioner ; The New Ahmedabad v Bansidar Mills Pvt Ltd. Ahmedabad vs Union of India & Ors.
A I R. 1968 Gujarat 71; approved.
Provident Fund Inspector Trivendrum vs Secretary N.S. section Co operative Society Changanacherry ; Vithaldas Jagnnathdas & Anr.
vs The Regional Provident Fund Commissioner Madras & Anr.
; distinguished.


judgement:
Civil Appeal No. 2137 of 1984.
From the Judgment and Order dated 24.2.83 of the Punjab and Haryana High Court in Civil Writ No.1086/83.
WITH Writ Petition No. 11238 of 1983 Under Article 32 of the Constitution K.G. Bhagat, Additional Solicitor General and Vimal Dave for the appellant in CA.
No. 2137/84.
K.G. Bhagat, Additional Solicitor General and Ms. Asha Rani Jain for the petitioner in WP.
N o. 11238/83.
Prithvi Raj and R.C. Pathak for the respondents.
The Judgment of the Court was delivered by 482 DESAI, J.
Guru Nanak Khalsa High School ( ' School ' for short) an aided school and hence governed by The Punjab Aided Schools (Security of Service) Act, 1969 ( '1969 Act ' for short) in its application to the Union territory of Chandigarh dispensed with the service of the Headmaster of the School, appellant Shri Manmohan Singh Jaitla, and the drawing teacher Amir Singh claiming to exercise power under an agreement executed by each of them with the management of the school.
Admittedly, the school receives 95% of its expenses as grant from the Government and for contribution 5% of the expenses claims thoroughly arbitrary powers to be presently pointed out which appears to be anachronistic.
The action of the Managing Committee of the school in dispensing with the services of both the aforementioned persons is questioned in these two matters on more or less identical grounds and therefore they were heard together and are being disposed of by this judgment.
In Re: C.A. No. 2137/84: Pursuant to an advertisement inviting application for the post of Headmaster of the School, appellant Shri Manmohan Singh Jaitla applied for the same.
He was interviewed on March 28, 1976 and on the same day by the order of the same date, he was offered the post of Headmaster in the school in the prescribed scale with usual allowances sanctioned by the Education Department, Chandi garh Administration for grant in aid Schools.
The order of appointment provided that the appointee will be on probation for a period of one year and that he will be required to enter into an agreement with the school.
The appellant accepted the appointment order and joined service.
As required by the regulations of the Education Department of Chandigarh Administration, his appointment was subject to confirmation by the Director of Public Instruction.
The confirmation was granted as per the order dated August 11, 1976.
By the resolution of the Managing Committee of the School dated June 2, 1977, the appellant was confirmed with effect from May 1, 1977 in post as the Headmaster.
In token of the appreciation of the outstanding performance of the appellant as Headmaster in the field of academic work/co curricular activities and administration during the session 1980 81, he was awarded a certificate of honour by the Finance and Education Secretary, Union Territory of Chandigarh, on August 10, 1981.
It appears that the term of the earlier Managing Committee expired and a new Managing Committee took over with effect from March 24,1982.
On January 31,1983, the Education Managing Committee of ' the school informed the appellant that his 483 services were no longer required with effect from that very day i.e. January 1983 and in terms of Condition No. (iii) of the agreement entered into by him, he would cease to be in the employment of the school and was directed to hand over charge to Mrs. Gurcharan Kaur.
The appellants application for relief to the Deputy Commissioner under sub sec.
(2) of Sec. 3 of the 1969 Act was turned down.
After an unsuccessful appeal to the Commissioner, the appellant approached the High Court of Punjab and Haryana at Chandigarh under article 227 of the Constitution.
The High Court rejected the writ petition in limine but by a speaking order observing that as the school] cannot be said to be 'other authority ' under article 12 of the Constitution, it was not amenable to the writ , jurisdiction of the High Court.
Hence this appeal by special leave.
In Re W. P. No. 11238/83: Petitioner Amir Singh was appointed by the Managing Committee of the School on March 21, 1976 as a Drawing Teacher as per the appointment order No.1265 dated March 21, 1976.
This appointment was made upon an application made by the petitioner and after he was interviewed by the concerned committee of the school.
The appointment order spells out some of the conditions of appointment, one of them may be noticed.
The appointee had to enter into an agreement with the management of the school.
The petitioner was informed by a letter dated February 28, 1983 that as per the resolution adopted by the Managing Committee of the school, it was resolved to terminate the service of the petitioner as no longer required with effect from the fore noon of March 4, 1983 in terms of first part of clause (6) of the agreement entered into between the petitioner and the Management.
The petitioner approached the Deputy Commissioner and the Commissioner without success.
Thereupon he filed present petition under article 32 of the Constitution.
It is not in dispute that the school is governed by the 1969 Act.
It is an aided school receiving aid from the State Government to the tune of 95% of its expenses.
3 of the 1969 Act provides that no employee shall be dismissed or removed or reduced in rank except after an inquiry to be held in the manner prescribed therein.
Sub sec.
(2) provides that no order of dismissal or removal or reduction in rank of an employee shall take effect unless it has been confirmed by the Deputy Commissioner who may refuse to do so, if in his opinion, the provisions of sub sec.
(1) have not been complied with.
Sub sec.
(5) permits an aggrieved person to prefer an appeal 484 against any decision or order of the Deputy Commissioner under the section within a period of thirty days to the Commissioner.
Sub sec.
(6) provides that the order of the Commissioner shall be Final and binding between the parties.
The Deputy Commissioner and the Commissioner in terms held in both the cases that because of the terms of the agreement entered into by each of the teachers with the management of the school, it would not be open to them to go behind the order and to find out the true nature of the order.
It was also submitted on behalf of the respondent that under the relevant regulations of the Education Department of the Chandigarh Administration every employee of an aided school has to enter into an agreement with the management of the school.
Now if the management of the school intends to circumvent the mandatory provisions of Sec. 3 of the 1969 Act, it has merely to terminate the service by giving one month 's notice as provided in the agreement and the provisions controlling the arbitrary powers of the management to hire and fire can be rendered nugatory.
The Deputy Commissioner cannot take an easy recourse becoming oblivious to his duties merely to pay lip sympathy to the order made by the management and decline even to examine the allegation of malafide as also the true nature and character of the impugned order.
In the garb of enforcing a term of the agreement what was sought to be done in this case was to impose the penalty of removal.
And there is sufficient material on record to show that the action was malafide.
Turning to the case of Manmohan Singh Jaitla, the Headmaster, the facts herein above narrated would affirmatively show that he was fully qualified and that he was appointed after interview and selection.
He was confirmed.
He received a certificate of merit from the Chandigarh Administration.
The moment the Managing Committee changed exposing the inter se squabbles amongst persons trying to usurp control of the management of the school, almost wholly financed by the public exchequer, to wreck vengeance against those who were appointed by the outgoing management which may have been defeated at the hustings, the agreement was invoked and the services terminated.
Throwing out persons appointed by out going management is only one side of the coin.
The moment the vacancy occurs, nepotism or corruption will have field day.
Since the new management took, over quietly within a few months, service of the Headmaster was terminated on the ground that his service was no longer required.
We repeatedly asked Mr. Prithvi Raj, 485 learned counsel for the respondent school management as to how it would run a school without a Headmaster.
We naggingly persisted with the question as to why it became necessary, obviously in the middle of the term or session on January 31, 1983, to dispense with the service of a Head Master and a Drawing teacher on the ground that they were no longer required.
We waited for the answer in vain.
Obviously, there could be none and that provides proof, if any was needed, to expose the chink in the cupboard revealing the malafides of the newly elected Managing Committee.
We cannot efface the feeling that ignoring the meritorious service for a period of seven years the service of the appellant was dispensed with for a reason wholly untenable but only because he was appointed by the outgoing Managing Committee ignoring that his appointment was confirmed by the competent authority of the Chandigarh Administration.
Coupled with this is the fact that a charge sheet was served on the appellant on April 9, 1979 and a disciplinary enquiry was commenced by the school management.
But the same was withdrawn and the power to terminate the service under the agreement was invoked and exercised.
This gives a clear indication as to the punitive character of the order namely punishment for a possible misconduct and also colourable exercise of power by resorting to the agreement.
Any agreement, not in consonance with the statutory provisions beneficial to a class in need of protection cannot be given effect to if it stands in derogation of the mandatory provisions of the statute.
3 makes it obligatory to hold a disciplinary enquiry before an employee of an aided school can be either dismissed, removed or reduced in rank.
In order to circumvent this mandatory provision, a resort to the provisions of the agreement in the context of the fact that an enquiry was commenced and given up clearly indicates the true nature of the order as well as colourable exercise of power.
And this was done by the new Managing Committee which appeared to be keen to dispense with the service of persons appointed by the outgoing Managing Committee .
This smacks of malafide.
For all these reasons the order of termination of service of the appellant is bad and ab initio void.
The High Court declined to grant any relief on the ground that an aided school is not 'other authority ' under article 12 of the Constitution and is therefore not amenable to the writ jurisdiction of the High Court.
The High Court clearly overlooked the point that Deputy Commissioner and Commissioner are statutory authorities operating under the 1969 Act.
They are quasi judicial authorities and that was not disputed.
Therefore, they will be comprehen 486 ded in the expression 'Tribunal ' as used in article 227 of the which confers power of superintendance over all courts and tribunals by the High Court throughout the territory in relation to which it exercises jurisdiction.
Obviously, therefore, the decision of the statutory quasi judicial authorities which can be appropriately described as tribunal will be subject to judicial review namely a writ of certiorari by the High Court under article 227 of the Constitution.
The decision questioned before the High Court was of the Deputy Commissioner and the Commissioner exercising powers under Sec.
3 of the 1969 Act.
And these statutory authorities are certainly amenable to the writ jurisdiction of the High Court.
The matter can be viewed from a slightly different angle as well.
After the decision of the Constitution Bench of this Court in Ajay Hasia etc.v.
Khalid Mujib Sehrvardi & Ors.
etc (l) the aided school receiving 95% of expenses by way of grant from the public exchequer and whose employees have received the statutory protection under the 1969 Act and who is subject to the regulations made the Education Department of the Union Territory of Chandigarh as also the appointment of Head Master to be valid must be approved by the Director of public Instructions, would certainly be amenable to the writ jurisdiction of the High Court.
The High Court unfortunately, did not even refer to the decision of the Constitution Bench in Ajay Hasia 's case rendered on November 13, 1980 while disposing of the writ petition in 1983.
In Ajay Hasia 's case, Bhagwati, J. speaking for the Constitution Bench inter alia observed that 'the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character. ' Add to this the existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality Substituting the words 'public trust ' in place of the 'corporation ' and the reasons will mutatis mutandis apply to the school.
Therefore, also the High Court was in error in holding that the third respondent school was not amenable to the writ jurisdiction of the High Court.
It would thus appear that the order of termination of service is unsustainable for more than one reason and therefore, the order of termination of service No. 58/83/20 dated January 31,1983 is quashed and set aside and the appellant Manmohan Singh Jaitla is reinstated in service as the Headmaster of the school with continuity (1)[1981] 2 S.C.R. 79. 487 in service and full backwages.
If under the orders of this Court A dated March 2, 1983, May 2, 1983 and subsequent orders, the appellant Headmaster is paid his monthly salary, credit shall be taken for the same.
Amir Singh, the Drawing Teacher has met with the same fate.
He was appointed pursuant to his application for a vacant post of a Drawing Teacher.
Right from the inception, he was a confirmed hand in the sense that he was not put on probation.
Suddenly, after the new Managing Committee got into saddle, his service was terminated with effect from March 4, 1983 on the ground that it was no longer required.
No attempt was made before us to sustain the order on this untenable ground.
Therefore, the only distinguishable feature of this case with the case of the Headmaster Manmohan singh Jaitla is that no charge sheet was served upon the petitioner teacher.
Save and except this difference, all the reasons which weighed with us in quashing the order of termination of service of Headmaster Mr Jaitla would mutatis mutandis apply to the case of this Drawing Teacher.
To restate these reasons would merely add to the length of this judgment.
As a corollary, the rule will have to be made absolute after quashing and setting aside the order of termination of service dated February 28, 1983 and directing reinstatment of Drawing Teacher Amir Singh in service with continuity in service with full backwages.
Accordingly, C. A. No. 2137/84 is allowed and the order terminating the service of Headmaster Manmohan Singh Jaitla is quashed and set aside as also the decisions of the Deputy Commissioner and the Commissioner and the Judgment of the High Court are quashed and set aside.
The appellant Headmaster Shri Manmohan Singh Jaitla is reinstated in service with continuity in service and full backwages subject to the fact that if backwages have been paid under the orders of this Court, credit may be given for the same.
Rule is made absolute in the writ petition filed by Drawing Teacher Amir Singh and the order terminating his service dated February 28, 1913 is quashed and set aside as also the orders of the Deputy Commissioner and Commissioner and he is reinstated in service with continuity in service with back wages.
The respondent School management shall pay the costs to both the employees separately quantified in each case at Rs 1, 500.
H.S.K. Petition and appeal allowed.

summary/full:
Section 3 of the Punjab Aided Schools (Security of Service) Act, 1969 ( '1969 Act ' for short) provides that no employee shall be dismissed or removed or reduced in rank except after an inquiry to be held in the manner prescribed therein.
Sub sec.
(2) provides that no order of dismissal or removal or reduction in rank of an employee shall take effect unless it has been confirmed by the Deputy Commissioner who may refuse to do so.
if in his opinion, the provisions of sub sec.
(I) have not been complied with.
Sub sec.
(S) permits an aggrieved person to prefer an appeal against any decision or order of the Deputy Commissioner under the section to the Commissioner.
The appellant in the civil appeal was appointed as Headmaster of an aided school which received 95 percent of its expenses as grant from the Government.
As required by the conditions of his appointment, the appellant entered into an agreement with the management of the school.
The appellant 's appointment was confirmed by the concerned authority.
The appellant was confirmed in his post as the Headmaster.
The appellant was 480 awarded a certificate of honour by the Chandigarh administration in token of appreciation of the outstanding performance of the appellant.
After the term of the Managing Committee which appointed the appellant expired and the new Managing Committee took over, the services of the appellant were terminated invoking the conditions of the agreement entered into by the appellant.
The appellant 's appeal to the Deputy Commissioner and the Commissioner were turned down.
The appellant 's writ petition was dismissed by the High Court in limine.
The High Court observed that as the school cannot be said to be 'other authority ' under article 12 of the Constitution, it was not amenable to the writ jurisdiction of the High Court.
Hence this appeal by Special Leave.
The petitioner in the writ petition was appointed as a Drawing Teacher in 1976.
As required by the conditions of his appointment the petitioner entered into an agreement with the management.
In 1983 the petitioner 's services were terminated invoking the conditions of the agreement.
The petitioner approached the Deputy Commissioner and the Commissioner without success.
Thereupon he field the present writ petition under article 32 of the Constitution.
Allowing both the appeal and the writ petition, ^ HELD: Any agreement not in consonance with the statutory provisions beneficial to a class in need of protection cannot be given effect to if it stands in derogation of the mandatory provisions of the statute.
Section 3 of the 1969 Act makes it obligatory to hold a disciplinary inquiry before an employee of an aided school can be either dismissed removed or reduced in rank.
In order to circumvent this mandatory provision, a resort to the provisions of the agreement in the context of the fact that an inquiry was commenced and given up clearly indicates the true nature of the order as well as colourable exercise of power.
And this was done by the new Managing Committee which appeared to be keen to dispense with the service of persons appointed by the outgoing Managing Committee.
This smacks of malafide.
For these reasons the order of termination of service of the appellant is bad and ab initio void.
[485E G] The High Court declined to grant any relief on the ground that an aided school is not 'other authority ' under Act.
12 of the Constitution and is therefore not amenable to the writ jurisdiction of the High Court.
The High Court clearly overlooked the point that Deputy Commissioner and Commissioner are statutory authorities operating under the 969, Act.
They are quasi judicial authorities and that was not disputed.
Therefore, they will be comprehended in the expression 'Tribunal ' as used in article 227 of the Constitution which confers power of superintendence over all courts and tribunals by the High Court throughout the territory in relation to which it exercises jurisdiction.
Obviously, therefore, the decision of the statutory quasi judicial authorities which can be appropriately described as tribunal will be subject to judicial review namely a writ of certiorari by the High Court under article 227 of the Constitution.
The decision questioned before the High Court was of the Deputy Commissioner and the Commissioner exercising power under Sec.
3 of the 1969 Act.
And these statutory 481 authorities are certainly amenable to the writ jurisdiction of the High Court.
[485G H; 486A C] After the decision of the Constitution Bench of this Court in Ajay Hasia etc.
vs Khalid Mujib Sehravardi and Ors. etc.
the aided school receiving 95% of expenses by way of grant from the public exchequer and whose employees have received the statutory protection under the 1969 Act and who are subject to the relations made by the Education Department of the Union Territory of Chandigarh as also the appointment of Headmaster to be valid must be approved by the Director of Public Instructions , would certainly be amenable to the writ jurisdiction of the High Court.
[486C D] Ajay Hasia etc.
vs Khalid Mujib Sehravardi and Ors. etc.
; , , referred to.
The Deputy Commissioner and the Commissioner in terms held in both the cases that because of the terms of the agreement entered into by each of the teachers with the management of the school, it would not be open to them to go behind the order and to find out the true nature of the order.
Now if the management of the school intends to circumvent the mandatory provisions of Sec. 3 of the 1969 Act, it has merely to terminate the service by giving one month 's notice as provided in the agreement and the provisions controlling the arbitrary powers of the management to hire and fire can be rendered nugatory.
The Deputy Commissioner cannot take an easy recourse becoming oblivious to his duties merely to pay lip sympathy to the order made by the management and decline even to examine the allegation of malafide as also the true nature and character of the impugned order.
[484B D]


judgement:
iminal Appeal No. 39 of 1955.
Appeal by special leave from the judgment and order dated January 28, 1954, of the Patna High Court in Criminal Revision No. 69 of 1954 arising out of the judgment and order dated November 23, 1953, of the Sessions Judge, Patna, in Criminal Appeal No. 288 of 1953 against the judgment and order dated August 27, 1953, of the Munsif Magistrate of Patna Sadar.
Murtaza Fazl Ali and R. C. Prasad, for the appellant.
section P. Varma, for respondent No. 1. 1957.
April 25.
The Judgment of the Court was delivered by IMAM J.
The appellant was removed from his position as mutawalli of Gholam Yahia Waqf Estate on September 1, 1951, by an order passed by the Majlis constituted under the Bihar Waqfs Act, 1947 (Bihar Act 8 of 1948) (hereinafter referred to as the Act).
He appealed to the District Judge of Monghyr, as he was entitled to do under the provisions of the Act, and the operation of the order of removal passed by the Majlis was stayed by the District Judge pending the hearing of his appeal.
A complaint against him was filed in the Court of the Sadar Sub Divisional Magistrate, Patna, on July 1, 1952, by Mahommad Sual, Nazir of the Majlis, on the order of its Sadar.
It was alleged in the complaint that it was the duty of the appellant ' to prepare a budget of the waqf estate of which he was a mutawalli, under section 58(1) of the Act, for the year 133 1034 1952 53 and to send a copy of it to the Majlis before January 15, 1952.
The appellant had deliberately failed to comply with the aforesaid provisions and therefore had committed an offence punishable under section 65(1) of the Act.
The office of the Majlis where the budget had to be filed was situated at Patna within the local jurisdiction of the Magistrate in whose Court the complaint was filed.
The appellant was subsequently tried at Patna by a Munsif Magistrate with First Class powers and convicted under section 65(1) of the Act and sentenced to pay a fine of Rs. 100, in default to undergo fifteen days simple imprisonment.
He appealed to the Sessions Judge of Patna who dismissed his appeal.
An application filed by the appellant in the Patna High Court in its criminal revisional jurisdiction was rejected.
The appellant obtained special leave to appeal against the order of the High Court.
It has been found as a fact that the appellant failed to prepare a budget of the estimated income and expenditure of the waqf estate and to send a copy of it to the Majlis before January 15, 1952.
The only question for consideration is whether the appellant 's failure to comply with the provisions of section 58(1) of the Act makes him liable to be punished under section 65(1).
At this stage, it is necessary to set out the provisions of a. 58 of the Act which are as follows: " 58 (1) The mutawalli of every waqf shall, before the fifteenth day of January in each year, prepare a budget of the estimated income and expenditure of such waqf for the next succeeding financial year and shall forthwith send a copy thereof to the Majlis.
(2)The Majlis may, within six weeks from the date on which it receives such copy, alter or modify the budget in such manner and to such extent as it thinks fit.
(3)If the Majlis alters or modifies any budget under sub section (2), it, shall forthwith send a copy of the budget as so altered or modified to the mutawalli of the waqf concerned, and the budget as so altered or modified shall be deemed to be the budget of the waqf.
(4)If within the period mentioned in subsection (2) and for two weeks thereafter the Majlis does 1035 not send to the mutawalli of the waqf concerned a copy of the budget altered or modified as aforesaid, the Majlis shall be deemed to have approved the budget without any alteration or modification.
(5)If the mutawalli fails to prepare and send a copy of the budget as required by sub section (1), the Majlis shall prepare a budget for the waqf concerned and such budget shall be deemed to be the budget of that waqf for the year in question.
(6)Nothing contained in this section shall be deemed to authorise the Majlis to alter or modify any budget in a manner or to an extent inconsistent with the wishes of the waqif, so far as such wishes can be ascertained, or the provisions of this Act.
" Section 65 provides that a mutawalli may be punished if he fails to comply with certain matters mentioned therein including his failure to comply with sub section
(1) of section 58.
Sub section (1) of section 65 reads as follows: " 65 (1) If a mutawalli fails without reasonable cause, the burden of proving which shall be upon him, to comply with any order or direction made or issued under clauses (i), (o) or (q) of sub section (2) of section 27 or under section 56, to comply with the provisions of sub section (1) of section 57, sub section (1) of section 58, section 59 or section 60, or to furnish any statement, annual account, estimate, explanation or other document or information relating to the waqf of which he is mutawalli, which he is required or called upon to furnish under any of the other provisions of this Act, he shall be punishable with fine which may extend, in the case of the first offence, to two hundred rupees and, in the case of second or any subsequent offence, to five hundred rupees.
" It is clear from the provisions of section 58(1) that before January 15, each year, the mutawalli of each waqf shall prepare a budget for the next succeeding financial year and shall forthwith send a copy thereof to the Majlis.
Under section 65 (1), if he fails to comply with the above, he is liable to be punished with fine.
It was contended by the learned Advocate for the appellant that section 58 of the Act was an invalid provision because it gave unrestricted power to the Majlis to alter 1036 or modify the budget prepared by the mutawalli without a right of appeal against the action of the Majlis altering or modifying the budget.
The provisions of section 58 imposed an unreasonable restriction on the mutawalli in carrying on his occupation as such.
Accordingly, the provisions of section 58 offended article 19(1) (g) of the Constitution.
The Act was enacted for the purpose of providing for the better administration of waqfs in the State of Bihar as its preamble states.
Section 5 provides for the establishment of two bodies corporate known as Majlis to discharge respectively the functions assigned to them by the Act with reference to Sunni waqfs and Shia waqfs.
Section 27 provides that the general superintendence of all waqfs in the State shall be vested in the Majlis, which will do all things reasonable and necessary to ensure that waqfs are properly supervised and administered and that the income thereof is duly appropriated and applied to the objects of such waqfs and in accordance with the purposes for which such waqfs were founded or for which they exist so far as such objects and purposes can be ascertained.
Sub section (2) of this section enumerates, inter alia,.
the various powers and duties of the Majlis including the removal of a mutawalli from his office under certain conditions.
The various powers set out in this subsection clearly indicate that the mutawalli is subordinate to and under the control of the Majlis.
The Majlis under section 47 may also make an application to the District Judge for an order, amongst other things, for the removal of the mutawalli.
Chapter X deals with mutawallis and their duties and under section 56 it is specifically enjoined that every mutawalli shall carry out all directions which may from time to time be issued to him by the Majlis under any of the provisions of the Act.
Previous to the passing of the Act, the Mussalman Wakf Act (Central Act XLII of 1923) was enacted to make provisions for the better management of waqf property and for ensuring the keeping and publication of proper accounts in respect of such properties.
It applied to all waqfs, except those to which section 3 of the Mussalman Wakf Validating Act, 1037 1913, applied.
Reference to some of the provisions of the Mussalman Wakf Act may now be made.
Section 3 provides for the furnishing of particulars relating to a waqf to the Court, that is to say, a District Judge or within the limits of ordinary original civil jurisdiction, to such Court subordinate to the High Court as the State Government may by notification in the Official Gazette designate.
Section 5 provides that within three months after the thirty first day of March next following the date on which the statement referred to in section 3 had been furnished, and thereafter within three months of the thirty first day of March in every year, the mutawalli shall prepare and furnish to the Court a full and true statement of accounts of all moneys received or expended by him on behalf of the waqf of which he was the mutawalli during the period of twelve months ending on such thirty first day of March.
Section 10 provides for punishment for failure to comply with the provisions of section 3 or section 4 by a mutawalli, who becomes liable to be fined a sum which may extend to five hundred rupees, or, in the case of a second or subsequent offence which may extend to two thousand rupees.
It is clear that the purpose of the Act and that of the Mussalman Wakf Act was to ensure that the waqfs were properly administered and that the income of the waqf was duly appropriated for the purposes for which the waqf had been founded.
Having regard to the fact that the mutawalli occupied the position of a manager or a custodian and that some kind of control or supervision over him by the Majlis with respect to due administration of the waqf property and due appropriation of funds was certainly necessary, we are of the opinion that the provisions of section 58 of the Act are reasonable restrictions on the exercise of his duties as a mutawalli and it cannot be said that the provisions of section 58 offend any of the provisions of the Constitution.
As was said in the case of The Commissioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt(1) a budget is indispensable in all public institutions and that it is not per se (1) ; , 1037.
1038 unreasonable to provide for the budget of a religious institution being prepared under the supervision of the Commissioner or the Area Committee.
Under section 58 of the Act, the mutawalli has to prepare a budget and send a copy of it to the Majlis within a specified time and the Majlis, which has the powers of supervision over him, is authorized to alter or modify the budget.
This power of alteration or modification is inherent in the power of supervision and such a provision in section 58 cannot be said to be unreasonable.
Reliance, however, was placed on a passage in the judgment of this Court in the case cited above to the effect that if an Area Committee under cl. 3 of section 70 of the Madras Hindu Religious and Charitable Endowments Act, 1951, makes any addition or alteration in the budget, an appeal against it lay to the Deputy Commissioner.
The passage upon which reliance is placed is no authority for the proposition that the provisions of section 58 of the Act become unreasonable because there is no provision for an appeal against the orders of the Majlis.
The powers of the Majlis to alter or modify the budget prepared by the mutawalli are not unrestricted.
Sub section (6) of section 58 expressly provides that nothing contained in the section shall be deemed to authorize the Majlis to alter or modify any budget in a manner or to an extent inconsistent with the wishes of the waqif, so far as such wishes can be ascertained, or the provisions of the Act.
In our opinion, nothing contained in sub sections
(2), (3) and (4) of section 58 amount to unreasonable restrictions on the exercise of the duties of the mutawalli as a person administering a waqf.
Even if it were to be assumed that the said provisions amounted to an unreasonable restriction, sub sections
(2), (3) and (4) are clearly severable from sub sections
(1), (5) and (6) of section 58.
Even if sub sections
(2), (3) and 4 were struck down, the mutawalli would still be under a legal obligation under sub section
(1) to prepare a budget and submit a copy thereof to the Majlis within a specified time and his failure to do so would make him liable to punishment under section 65(1).
It was urged that the Sessions Judge erred in placing the onus on the appellant under section 65(1) to prove that he had submitted the copy of the budget within time.
1039 This objection, however, does not require a detailed consideration because the Sessions Judge clearly stated in his judgment that apart from the onus, he was satisfied that the prosecution had fully established on the evidence that the appellant had failed to send a copy of the budget as required by law.
It was also pointed out that section 65 does not provide for any imprisonment in default of payment of fine, but the appellant was sentenced to 15 days simple imprisonment in default of payment of fine.
Section 33 of the Code of Criminal Procedure read with sections 40 and 67 of the Indian Penal Code appears to us to be a clear answer to this contention.
It was also pointed out that under section 65 of the Act a sentence of fine extending upto five hundred rupees could be imposed for a second or for a subsequent offence.
We need not, however, consider that matter in the present appeal as it was conceded on behalf of the appellant that the sentence of fine imposed upon him in the present case was for a first offence.
The appeal is accordingly dismissed.
Appeal dismissed.

summary/full:
The appellant failed to prepare a budget of the Waqf Estate of which he was the mutawalli, for the year 1952 53 and send a copy of it to the Majlis before January 15, 1952, as he was bound to do under section 58(1) of the Bihar Waqfs Act, 1947, and was convicted by the 'Magistrate under section 65(1) of the Act and sentenced to pay a fine of Rs. 100, in default to undergo fifteen days simple imprisonment.
It was contended for him that the conviction and sentence were not valid because (1) section 58 of the Act contravened article 19(1) (g) of the Constitution of India, as it gave unrestricted power to the Majlis to alter or modify the budget prepared by the mutawalli without a right of appeal against the action of the Majlis and so imposed an unreasonable restriction on the mutawalli in carrying on his occupation as such, and (2) section 65 Of the Act did not provide for any imprisonment in default of payment of fine.
Held, that having regard to the fact that a mutawalli occupies the position of a manager or custodian and the supervision over him by the Majlis with respect to due administration of the waqf property is necessary and that the powers of the Majlis to alter or modify the budget prepared by the mutawalli are controlled by sub section
(6) Of section 58 of the Act, the restrictions imposed by section 58 Of the Act on the exercise of his powers 1033 by a mutawalli are reasonable.
Accordingly, the provisions Of section 58 'of the Act do not offend article 19 (i) (g) of the Constitution.
Commissioner, Hindu Religious Endowments, Madras vs Sri Lakshmindya Thirtha Swamiar of Sri Shirur Mutt, ; , relied on.
The order of the Magistrate providing for imprisonment in default of payment of fine is not invalid in view Of section 33 of the Code of Criminal Procedure read with sections 4o and 67 of the Indian Penal Code.