judgement:
ivil Appeal Nos.
300 301 of 1963.
562 Appeals by special leave from the award dated October 23, 196 of the Industrial Tribunal (111), Allahabad in Adjudication Case No. 33 of 1961.
G.B. Pai, J. B. Dadwhanji, O. C. Mathur and Ravinder Narain, for the appellant in C.A. No. 300 of 1963 and the respondent in C.A. No. 301 of 1963.
C.B. Agarwala, O. P. Lal and G. O. Mathur, for the respondents in C.A. No. 300 of 1963 and the appellants in C.A. No. 301 of 1963.
May 3.
The Western India Match Gompany; the Bareilly Branch of which is the appellant in the first of the two appeals before us, is engaged in the manufacture and sale of matches in India.
The manufacture of matches is carried on by the company at its four factories at Ambernath, Madras, Calcutta and Clutterbuckgan j in Bareilly.
At these four places the company has also four sales offices catering to the needs of the regions assigned to them.
The sales office at Clutterbuckganj with which we are concerned in this appeal carries on its sales activities in the States of U.P., Punjab, Delhi, Himachal Pradesh, a part of Rajasthan and a part of Madhya Pradesh.
According to the appellant each of these sales offices is independent of the factories of their respective regions and so the Bareilly Sales Office is quite independent of the "factory at Bareilly.
As an incentive to larger production of matches the 0company introduced in 1945 a Production Bonus Scheme the details of which will be mentioned later.
The scheme was applied at the beginning not only to the 1500 workmen engaged in the factory in making matches but also to the workmen working in the factory office, who numbered about 100.
In 1947, the production bonus was withdrawn from the office staff of the factory, though it continued to operate as regards 563 the other workmen.
The factory office staff raised a dispute on this question in 1957 and ultimately as a result of a decision of the Adjudicator given on March 13 1958, the factory office staff also became entitled to the benefits of the production bonus scheme on the same terms as the other workmen in the factory.
The workmen of the sales office consisting of the clerical staff as also salesmen and inspectors of salesmen were however denied the benefits of the scheme, though it does appear that for a very short period in 1946 the sales office staff also received payments purporting to be production bonus.
The Adjudicator 's decision extending the production bonus scheme to the factory staff was confirmed by this Court on March 17, 1961.
It appears that during the pendency in this Court of the appeal against the Adjudicator 's order there was some discussion between the Union of which the sales office staff became members in 1957 or thereabout and the sales manager 'at Bareilly, in regard to extending the Production Bonus Scheme to the members of the sales staff, if the appeal in this Court was decided in favour of the factory office staff On March 13, 1961, the Union wrote to the sales manager reiterating the claim to Production bonus and pointing out that "discrimination between the employees of the same company in the matter of admissibility of item of wage was bound to lead to heartburning." The manager replied on May 22, 1961, characterizing this demand of the sales office staff as unreasonable to which the management could not agree.
Ultimately, on August 18, 1961, the dispute which thus arose between the employers and the workmen was referred by the Government of U. P. to the Third Industrial Tribunal at Allahabad for adjudication.
The dispute referred was described in these words: "Should the employers be required to pay production bonus to the workmen employed 564 in their sales office ? If so, with effect from what date and with what other details By a later amendment on December 4, 1961, the word " 'in" was substituted by the word "by".
Though a number of matters were raised in issue, both the parties rightly 'concentrated at the hearing on the question whether the sales office and the Factory were independent units of production or formed integral parts of one and the same unit of industrial production.
Whether or not an incentive scheme for better production should be introduced in any industry is essentially a matter for the management to decide.
This position has been recognized by this Court in Titaghur Paper Mills Company Ltd. v Their Workmen (1).
and again in Burn & Co., vs Their Workmen (2).
While in view of the importance of industrial adjudication not interferng with what is purely management functions, the Court felt that industrial adjudication should not impose an incentive bonus on the management for the first time.
the Court pointed out that the position would be different where an incentive bonus is already in force for themajority of the workmen.
"We can see no reasonwe said in Burn Company 's Case"why where anincentive bonus scheme is in force in a concern for the majority of its workmen, the Tribunal should not be able to extend the same to the remainder of the workmen.
" In view of this the appellant in this case tried to establish the fact that the sales office was entirely 'independent of the factory, while the workmen, on the other band, directed their efforts to showing that these are only two departments of the one and the same unit of production.
Another question on which the parties joined issue was whether Inspectors, Salesmen and Retail Salesmen out of the sales office staff were workmen (1) [1959] Supp. 2 S.C.R. 1012 (2) 565 or not within the meaning of the U. P. Industrial disputes Act.
The management contended that they were not workmen and so were not within the terms of reference; the respondents claimed that they were workmen within the meaning of the Act.
Applying the principles laid down by this Court in several cases where the question whether two or more units of business under the same ownership form one industrial unit or more to the facts and circumstances of this case as disclosed by the oral and documentary evidence, the Tribunal came to the conclusion that the sales office and the factory form one single unit of industry and there being no reason for making any discrimination against the sales office staff on the question of production.
bonus held that the employers should be required to pay production bonus to the workmen employed by their sales office also.
The Tribunal directed that the sales office staff should be paid production bonus at the same rate at which it was given to the workmen of the factory and the factory office.
The question whether inspectors, salesmen and retail salesmen employed by the sales office were workmen was also answered by the Tribunal in the affirmative so that they also became entitled to the benefit of the award.
Being of opinion that the dispute should have been raised earlier by the workmen of the sales office, the Tribunal directed that the payment of production bonus to the sales office staff would start from the date the award became enforceable in law.
Against this decision the employers, the Western India Match Co., Ltd., Bareilly, has appealed by special leave granted by this Court.
The workmen have also appealed against the direction that the payment of production bonus should start from the date the award became enforceable in law.
Three points have been raised before us on behalf of the employers in support of their appeal, 566 which has been numbered Civil Appeal No. 300 of 1963.
The first and the main contention is that the Tribunal has erred in holding that the sales office and the factory formed parts of one and the same unit of industrial production.
In any case, it was next urged, the Tribunal ought not to have extended to the sales office staff the production bonus scheme, for the factory and the factory office without any modification.
Thirdly, it was contended that the Tribunal was wrong in holding that Inspectors, Salesmen and Retail Salesmen are workmen within the meaning of the U.P.
This last contention can be disposed of easily.
"Workman" has been defined in the U. P. Industrial disputes Act to mean any person employed in an industry to do any manual, supervisory, technical or clerical work for hire or reward.
The Tribunal has accepted the evidence of the workmen 's witness Sexena that the writing work takes up 75% of the time of these categories of the sales staff Mr. Pai has characterized this finding as arbitrary.
We do not think this criticism is justified The management did not file any document to show the list of duties of these persons but contented itself with filing an affidavit that no certified duty list of inspectors, .salesmen and retail salesmen has been circulated for travelling letters by the employers.
A statement of duties of the salesmen and retail salesmen was filed on behalf of the workmen and was marked exhibit W. 61.
The correctness of what is stated in this document has not been challenged by the management.
On a consideration of the statement of duties as detailed in this document along with the oral testimony of the workmen 's witnesses, we are of opinion that the Tribunal cannot be said to have acted unreasonably or arbitrarily in believing that 75% of the time of these categories of workmen is devoted to writing work.
It is not out of place to mention in this connection that on some previous occasions the management 567 itself has treated these categories as workmen within the meaning of the U. P.
The management 's contention that the Tribunal has erred in thinking that the inspectors, salesman and retail salesmen are workmen must therefore be rejected, A more difficult question is whether the sales office and the factory form part of one and the same unit of industrial production or are independent of each other.
It will be useful to clear the ground first of the confused notion which is expressed in para.
8 of the Company 's written statement that the employees of the Sales office have nothing to do with "Production".
It does not require an economist to tell us that just as the man who tills the soil, and grows the crop is engaged in producing wealth for the community, so also is the person who reaps the harvest, the person who transports it from the field to a place of storage and the people who are engaged in completing the process by bringing it to the ultimate consumer.
It is equally trite that just as a man who makes an article, be it bricks or steel or boxes or something else by using different materials in such a way as to make them more suitable to satisfy people 's wants is engaged in productive labour, so also is the person or persons who help in the ultimate achievement of satisfaction of those wants by bringing them to the consumer 's reach Therefore, it would be unreasonable to say that though those who make the matches are "producing" but those who sell them are not.
Once, this misapprehension is cleared we are face to face with the centre of the problem.
The principles to be followed in deciding these problems have so often been considered by this Court and the tests that can be applied to assist their solution have so frequently been laid down that further detailed discussion is un neccessary.
It is enough to mention 568 that among the many tests that have been evolved, functional integrality, inter dependence or community of financial control and management; community of man power and of its control, recruitment and discipline, the manner in which the employer has organised the different activities, whether he has treated them as independent of one another or as inter connected and inter dependent, enjoy pride of place.
But this list is by no means exhaustive.
Nor can the tests and the principles that have been laid down be applied mechanically or by way of syllogism.
A mechanical or syllogistic approach may appear to furnish the easiest way of solving a complicated problem, but the allurement of the easy way has to be resisted.
For, while such ways are beset with risks of error in all branches of law, they are even more unsafe and inexpedient in industrial law, where sensitive problems of human relations have to be solved in the midst of all the complexities of modem industrial Organisation.
That is why in applying the well settled tests and principles on these problems we have to bear in mind that while all tests that are possible of application should be applied, the value and importance to be attached to individual tests will vary according to the nature of the industrial activities and according to the nature of the disputes in which the problem has arisen, viz., whether it is in respect of lay off, retrenchment, production bonus, profit bonus or something else.
Again, as in most questions which come before the courts, it is the substance which matters and not the form; and every fact and circumstance relevant to the ascertainment of the substance deserve careful attention.
In the first place, functional integrality is writ large on the activities under consideration.
The sales office cannot exist without the factory While 569 it is true that the sales office does from time to time handle the production of a sister concern of the company, the Assam Company, by far the largest portion of its activities is devoted to the marketing of what is made at the Bareilly factory and to a certain extent of the products of the Western India Match Company.
It is equally clear that the factory itself cannot conveniently function without a sales organization.
The inter dependence of the two activities the manufacture of matches in the factory and their sale by the sales office is further emphasized by the fact that the factory arranges its volume of production in accordance with the programmes made from time to time by the sales manager.
Turning now to the question of finance, we find that the sales office and the factory have the same banking account, though separate cheque books are maintained and operated upon Even more important is the fact that the financial forecasts that are made for this Branch from time to time make no distinction between the disbursements in the sales office and the factory.
This is clear from the fore cast for the period October December This forecast was prepared by the sales manager and bears the heading "Bareilly Sales Office" Under the head "Cash Disbursements" we find first some figures in respect of bonus, woods, splints, ' raw materials and general stores and then one inclusive item for salaries and wages for both factory and sales office.
This document discloses the further interesting fact that excise duty a duty on the production of matches also finds place in the financial forecast, prepared by the sales manager for the sales office.
The manner in which the financial forecast was prepared by the sales manager in respect of functions not only of, the sales office but also of the factory proper is eloquent testimony that the 570 company did consider them as inter dependent parts of the same production unit.
Against all this, Mr. Pai seeks support for his contention that the sales office is independent of the factory, mainly in the rules and practice in connection with the recruitment, control and discipline of man power.
The documents, including letters of appointment and standing orders, which have been produced undoubtedly show that the company has kept these matters distinct and separate between the factory and the sales office.
It is also clear that separate muster rolls are maintained for the factory and the sales office, though it must be pointed out that a few workmen are common.
Our attention has been drawn also to the fact that the sales office pays rent to the factory for the area occupied by it by means of book adjustments.
These and some other details to which our attention has been drawn by Mr. Pai are of little assistance however to establish his proposition that the Tribunal hasacted arbitrarily in deciding that the sales officeand the factory are parts of one and the same industrial unit.
We have to mention here that our purpose in referring to these details of evidence is not to find out whether the Tribunal has come to a wrong conclusion on fact, but only to see if it has made any mistake in applying the correct principles or has come to a conclusion that is unreasonable, arbitrary or perverse On an analysis of the materials on the record we are clearly of opinion that the correct principles have been applied in a fair and reasonable manner and the conclusion reached cannot be challenged before us.
There remains for consideration Mr. Pai 's cotention that the Tribunal was not justified in 571 extending to the sales office staff the production bonus for the factory and the factory office without any modification.
Mr. Pai complains that having come to the conclusion that production bonus should be extended to the sales office staff the Tribunal did not apply its mind to the further question that was referred to it, viz.; with what details the production bonus scheme should be applied to the sales office staff According to Mr. Pai the sales office staff, speaking generally, enjoys much higher rates of pay than the corresponding categories in the factory office and that this was a factor which ought to be taken into consideration in deciding whether the production bonus scheme in force in the factory for the factory staff should be applied to the sales office staff without any modification.
If it were clear that the Tribunal had applied its mind to this aspect of the problem we would not have felt justified in upholding Mr. Pai 's complaint.
As it appears however that this aspect was not considered, we think it will be in the best interests of industrial peace and of social justice that the Tribunal applies its mind to the question and then comes to a decision.
We express no opinion whether Mr. Pai 's contention that the sales office staff enjoys higher pay scales than the factory staff is correct in fact or not nor on the question whether if this assertion be found to be correct any modification in the production bonus scheme would be called for.
We confirm the Tribunal 's decision that the production bonus scheme should be extended to the sales office staff and remand the case to the Tribunal for decision after taking note of all relevant facts whether the production bonus scheme in force in the factory and the factory staff should be extended to the sales office staff with or without modification.
572 This disposes of the management 's appeal viz., Civil Appeal No. 300 of 1963.
The workmen 's appeal Which is numbered Civil Appeal No. 301 of 1963 challenges the correctness of the Tribunal 's direction that the payment of production bonus should start from the date the award became enforceable in law.
According to the workmen the payment of production bonus should have been directed to be made with effect from the date of reference, if not from the date of the demand.
The question as to the date from which the benefit granted by an award should take effect must generally be left to the discretion of the Tribunal making the award and this Court ordinarily refuses to interfere with the exercise of that discretion.
We are unable to find any special circumstances in this case that would justify any departure from our established practice.
The Appeal No. 301 of 1963 is therefore dismissed.
In view of the fact that the case is going back to the Tribunal for a decision of the question as mentioned above we think it proper to direct that the ultimate award by the Tribunal should be given effect from the same date from which the award now under appeal would have come into force.
There will be no order as to costs in either of the appeals.
Appeal No. 300 remanded.
Appeal No. 301 dismissed.

summary/full:
The appellant company was engaged in the manufacture and sale of matches in four places in India, including Bareilly, in which there were factories as well as sales offices.
As an incentive to larger production of matches the company introduced in 1945 a Production Bonus Scheme which was made 561 applicable to workmen engaged in the factory in making matches as also to those working in the factory office.
In 1947, it was withdrawn in its application to the sales office.
The workmen of the sales office consisting of clerical staff as also salesmen and inspectors of salesmen made a claim to Production bonus painting out that there should be no discrimination between the employees in the same company.
The company resisted the claim on the grounds : (1) that the sales office was entirely independent of the factory; and (2) that the salesmen, retail salesmen and inspectors employed by the sales office were not workmen within the meaning of the U.P.
The facts showed : (1) that there was interdependence of the two activities viz., manufacture of matches in the factory and their sale by the sales office, inasmuch as (a) the sales office could not exist without the factory, (b) the factory itself could not conveniently function without a sales organization.
and (c) the factory arranged its volume of production in accordance with the programme made from time to time by the sales manager; (2) that the sales office and the factory had the same banking account, though separate cheque books were maintained and operated upon ; (3) that the financial forecasts that were made for the Bareilly branch from time to time made no distinction between the disbursements in the sales office and the factory ; (4) the rules and practice in connection with the recruitment, control and discipline of man power, as also documents, including letters of appointment and standing orders and the muster rolls were kept distinct and separate between the factory and the sales office; and (5) the sales office paid rent to the factory fir the area occupied by it by means of book adjustments.
The evideuce also showed that 75% of the time of the workmen in the sales office was devoted to writing work.
Held that, on the facts, there was functional integrality and inter dependence or community of financial control and management of the sales office and the factory in the appellant company and that the two must be considered part of one and the same unit of industrial production.
Held further, that the inspectors, salesmen and retail salesmen were workmen as defined in the U.P.


judgement:
ivil Appeal No. 1115 of 1962.
Appeals by special leave from the judgments and orders dated February 16,26, 1960, of the Punjab High Court in Civil Misc.
No. 1212 C of 1959 and Regular First Appeal No. 44 of 1955.
D.R. Prem and P.D. Menon, for the appellant.
469 Veda Vyasa, K. K. Jain, for P.C. Khanna, for respondent.
April 30.
The judgment of the Court was delivered by RAGHUBAR DAYAL J.
The facts leading to this appeal, by special leave, against the orders of the high Court of Punjab are these.
Ram Charan obtained a decree for money against the Unioun of India on January 6, 1955.
The Union of India presented an appeal on April 6, 1955, in the High Court.
Ram Charan, the sole respondent, filed a cross objection on July 31, 1955.
On February 6, 1956 the High Court passed an order in connection with the surety bond.
Ram Charan was represented at the proceedings.
Ram Charan died on July 91, 1957.
On March 18, 1958 an application was presented to the High Court on behalf of the appellant under O. XXII, r. 4, read with section 151, Code of Civil Procedure, stating that Ram Charan died on July 21, 1937, that the Divisional Engineer, Telegraphs, Ambala Cantonment, learnt of his death on February 3, 1958, and that the deceased had left as his legal representatives, an adopted son and a widow.
It was prayed that these legal representatives be brought on record in the place of the deceased respondent.
The affidavit filed in support of this application did not convey any further information and it was solemnly affirmed by the dependent that the averments in the affidavit were true to his belief The deponent was no other than the Divisional Engineer, Telegraphs, Ambala Cantonment.
On May 13, 1958, the widow of Ram Charan applied that she alone was the legal representative of Ram Charan under a will and that the alleged adopted son was not the legal representative.
The appellant 's application for bringing on record the 470 legal representatives of the deceased Ram Charan came up for hearing on May 14, 1958.
The Court ordered the application to be heard at the time of the hearing of the appeal as it was pointed out that there was a difference of opinion in the Court as to whether limitation under 0.
XXII of the Code started from the date of death or from the date of knowledge of death.
Subsequently, on an application on behalf of the legal representatives, it was ordered that the question of abatement be decided first and thereafter the printing of the record be taken on hand.
The application for substitution came up for decision on February 16, 1960.
It was dismissed, the Court holding that the Union of India had failed to show that it was prevented from any sufficient cause from continuing the appeal.
On February 26, 1960, the appeal itself was dismissed as having abated.
On May 14, 1960, an application for leave to appeal to the Supreme Court was presented to the High Court.
The heading of the application was described to be one for leave to the Supreme Court from the judgment dated February 16, 1960, in C.M. No. 1212/C of 1959 in R.F.A. No. 44 of 1955.
This application was rejected on May 17, 1960.
Thereafter, an application for special leave was filed in this Court.
Special leave was prayed for appealing from the judgment of the High Court of Punjab in R.F.A.No.44 of 1955 and C.M. No. 1212 C/59 dated February 16/26 of 1960.
The order granting special leave said: "That special leave be and is hereby granted to the petitioner to appeal to this Court from the judgment and order dated 16th day of February, 1960 and 26th day of February, 1960 of the Punjab High Court in Civil Miscellaneous No. 1212 C of 1959 and Regular First Appeal No. 44 of 1955.
" A preliminary objection was taken to the effect that the appellant having not applied to the 471 High Court for leave to appeal against the order dated February 26, 1960 in Regular First Appeal, that order had become final and special leave could not be asked for from this Court in view of Order XIII, r.2 of the Supreme Court Rules, 1950, the rule being: "Where an appeal lies to the Supreme Court on a certificate issued by the High Court or other tribunal, no application to the Supreme Court for special leave to appeal shall be entertained unless the High Court or tribunal concerned has first been moved and it has refused to grant the certificate.
" We do not see any force in this objection and reject it.
The application for leave to appeal, though described as one against the judgment in the miscellaneous case and not against the order in the regular appeal, stated in paragraph I that the regular first appeal had been ordered to have abated and in paragraph 3 that it was a fit case in which necessary certificate for filing an appeal against the judgment passed by the Court in regular first appeal No. 44 of 1955 be granted.
Both these statements refer to the proceedings in connection with the regular first appeal and not of the order on the miscellaneous application for substitution.
Ground No. 2 referred to those proceedings.
The application, therefore, was really an application for leave to appeal against both the orders.
The High Court does appear to have construed that application in this manner.
Its order dated May 17, 1960 stated : "The appeal was decided as having abated because the appellant failed to show sufficient cause for not bringing the legal 472 representatives of the deceased respondent within time." To appreciate the real contention between the parties before us, we may now give in brief, the reasons for the order of the High Court dated February 16, 1960.
It may be pointed out that in the narration of facts the High Court stated that the application dated March 17, 1958, was filed under O. XXII, rr. 4 and 9 read with section 151 of the Code. ' he application, as printed on the record, did not purport to be under r. 9 of O. XXII, C.P.C. There is not a word in the application that the appeal had abated and that the abatement be set aside The error in this respect seemed to have further led to the error in stating that the reason for the delay given in the application was that the Divisional Engineer, Telegraphs, came to know about Ram Charan 's death on February 3, 1958, there being no reason mentioned in the application.
It was just stated as a matter of fact that the Engineer had come to know of the death on February 3, 1958.
The order states that some application was presented by the Union of India on May 14, and that it was stated therein that the interval between February 3 and March 17.
1,958, was spent in collecting information about the legal representatives of the deceased.
This application, however, is not printed in the paper book.
The High Court relied on the Full Bench case of its Court reported in Firm Dittu Ram Eyedan vs Om Press Co. Ltd., (1), which held that ignorance of the death of the defendant was not a sufficient cause for setting aside the abatement when an application to bring the legal representatives of ' the deceased on the record was made after the expiry of the period of limitation, as the law imposed an obligation on the person applying for bringing the legal representatives of the deceased on the record and he had, therefore, to show absence of want of care.
The (1) (1960) 1 1.
L. R. Punj 935 473 High Court held that the Union of India did not state either in its application dated March 17, 1958, or in the other application dated May 14, 1958, that the Government had not been careless in the matter and had been vigilant in keeping itself informed regarding the whereabouts of Ram Charan and that it would not have been difficult for the Government to have come to know of Ram Charan 's death, who lived in Ambala Cantonment, to which place the appeal related.
The contentions raised for the appellant in this Court are : (1) That mere ignorance of death of the res pondent was sufficient cause for the appel lant 's inability to apply for the impleading of the legal representatives within time, unless it be that the appellant was guilty of some negligence or some act or omission which led to the delay in his making the application.
(2) Once the respondent is served in the first appeal, no duty is cast on the appellant to make regular enquiries about the state of health of the respondent.
(3) The expression 'sufficient cause ' should be liberally construed in order to advance the cause of justice.
(4) The Court itself ' has inherent power to add legal representatives to do full justice to the party.
(5) The High Court misapplied the decision of the Full Bench of its Court to the facts of the present case.
We may say at once that there is no force in the fourth point.
The Court is not to invoke its inherent 474 powers under section 151, C.P.C. for the purposes of impleading the legal representatives of a deceased respondent, if the suit had abated on account of the appellant not taking appropriate steps within time to bring the legal representatives of the deceased party on the record and when its application for setting aside the abatement is not allowed on account of its failure to satisfy the Court that there was sufficient cause for not impleading the legal representatives of the deceased in time and for not applying for the setting aside of the abatement within time.
There is no question of construing the expression 'sufficient cause ' liberally either because the party in default is the Government or because the question arises in connection with the impleading of the legal representatives of the deceased respondent.
The provisions of the Code are with a view to advance the cause of justice.
Of course, the Court, in considering whether the appellant has established sufficient cause for his not continuing the suit in time or for not applying for the setting aside of the abatement within time need not be over strict in expecting such proof of the suggested cause as it would accept for holding certain fact established, both because the question does not relate to the merits of the dispute between the parties and because if the abatement is set aside, the merits of the dispute can be determined while, if the abatement is not set aside, the appellant is deprived of his proving his claim on account of his culpable negligence or lack of vigilance.
This, however, does not mean that the, Court should readily accept whatever the appellant alleges to explain away his default.
It has to scrutinize it and would be fully justified in considering the merits of the evidence led to establish the cause for the appellant 's default in applying within time for the impleading of the legal representatives of the deceased or for setting aside the abatement.
475 It is true, as contended, that it is no duty of the appellant to make regular enquiries from time to time about the health or existence of the opposite party, but it does not mean that the mere fact of the appellant 's coming to know of the respondent 's death belatedly will, by itself, justify his application for setting aside the abatement.
That is not the law Rule 9 of O. XXII of the Code requires the plaintiff to prove that he was prevented by any sufficient cause from continuing the suit.
The mere allegation about his not coming to know of the death of the opposite party is not sufficient.
He had to state reasons which, according to him, led to his not knowing of the death of the defendant within reasonable time and to establish those reasons to the satisfaction of the Court, specially when the correctness of those reasons is challenged by the legal representatives of the deceased who have secured a valuable right on the abatement of the suit.
It is not necessary to consider whether the High Court applied its earlier Full Bench decision correctly or not when we are to decide the main question urged in this appeal and that being the first contention Rules 3 and 4 of O. XXII, C.P.C. lay down respectively the procedure to be followed in case of death of one of several plaintiffs when the right to sue does not survive to the surviving plaintiffs alone or that of the sole plaintiff when the right to sue survives or of the death of one of several defendants or of sole defendant in similar circumstances.
The procedure requires an application for the making of the legal representatives of the deceased plaintiff or defendant a party to the suit.
It does not say who is to present the application.
Ordinarily it would be the plaintiff, as by the abatement of the suit the defendant stands to gain.
However, an application is necessary to be made for the purpose.
If no such application is made within the time allowed by law, the suit abates to far as the deceased 476 Plaintiff is concerned or as against the deceased defendant.
The effect of such an abatement on the suit of the surviving plaintiffs or the suit against the surviving defendants depends on other considerations as held by this Court in State of Punjab vs Nathu Ram (1) and Jhanda Singh vs Gurmukh Singh (2) .
Any way, that question does not arise in this case as the sole respondent had died.
It may be mentioned that in view of r. 11 of O.XXII, the words 'plaintiff ', 'defendant ' and 'suit 'in that Order include 'appellant ', 'respondent ' and`appeal ' respectively.
The consequence of the abatement of the suit against the defendant is that no fresh suit can be brought on the same cause of action.
Sub rule (1) of r. 9 bars a fresh suit.
The only remedy open to the plaintiff or the person claiming to be the legal representative of the deceased plaintiff is to get the abatement of the suit set aside and this he can do by making an application for that purpose within time.
The Court will set aside the abatement if it is proved that the applicant was prevented by any sufficient cause from continuing the suit.
This means that the applicant had to allege and establish facts which, in the view of the Court, be a sufficient reason for his not making the application for bringing on record the legal representatives of the deceased within time.
If no such facts are alleged,.
none can be established and, in that case the Court cannot set aside the abatement of the suit unless the very circumstances of the case make it so obvious that the Court be in a position to hold that there was sufficient cause for the applicants not continuing the suit by taking necessary steps within the period of limitation.
Such would be a very rare case.
This means that the bare statement of the applicant that he came to know of the death of the other party more than three months after the death will not (1) [ ; (2) C. A. No. 344 of 1956 decided on April 10, 1962.
477 ordinarily be sufficient for the Court 's holding that the applicant had sufficient cause for not impleading the legal representatives within time.
If the mere fact that the applicant had known of the death belatedly was sufficient for the Court to set aside the abatement, the legislature would have.
expressed itself differently and would not have required the applicant to prove that he was prevented by any sufficient cause from continuing the suit.
The period of limitation prescribed for making such an application is three months, under article 171 of the First Schedule to the Limitation Act.
This is a sufficiently long period and appears to have been fixed by the legislature on the expectancy that ordinarily the plaintiff would be able to learn of the death of the defendant and of ' the persons who are his legal representatives within that period.
The legislature might have expected that ordinarily the interval between two successive hearings of a suit will be much within three months and the absence of any defendant within that period at a certain hearing may be accounted by his counsel or some relation to be due to his death or may make the plaintiff inquisitive about the reasons for the other party 's absence.
The legislature further seems to have taken into account that there may be cases where the plaintiff may not know of the death of the defendant as ordinarily expected and, therefore, not only provided a further period of two months under article 176 for an application to set aside the abatement of the suit but also made the provisions of section 5 of the Limitation Act applicable to such applications.
Thus the plaintiff is allowed sufficient time to make an application to set aside the abatement which, if exceeding five months, be considered justified by the Court in the proved circumstances of the case.
It would be futile to lay down precisely as to what considerations would constitute 'sufficient cause ' for setting aside the abatement or for the plaintiff 's not applying to bring the legal representatives of the deceased 478 defendant on the record or would be held to be sufficient cause for not making an application to set aside the abatement within the time prescribed.
But it can be said that the delay in the making of such applications should not be for reasons which indicate the plaintiff 's negligence in not taking certain steps which he could have and should have taken.
What would be such necessary steps would again depend on the circumstances of a particular case and each case will have to be decided by the Court on the facts and circumstances of the case.
Any statement of illustrative circumstances or facts can tend to be a curb on the free exercise of its mind by the Court in determining whether the facts and circumstances of a particular case amount to `sufficient cause ' or not Courts have to use their discretion in the matter soundly in the interests of justice.
It will serve no useful purpose to refer to the cases relied on for the appellant in support of its contention that the appellant 's ignorance of the death of the respondent is sufficient cause for allowing its application for the setting aside of the abatement and that in any case it would be sufficient cause if its ignorance had not been due to its culpable negligence or mala fides.
We have shown above that the mere statement that the appellant was ignorant of the death of the respondent, cannot be sufficient and that it is for the appellant, in the first instance, to allege why he did not know of the death of the respondent earlier or why he could not know about it despite his efforts, if he had made any efforts on having some cause to apprehend that the respondent might have died.
The correctness of his reasons can be challenged by the other party.
The Court will then decide how far those reasons have been established and suffice to hold that the appellant had sufficient cause for not making an application to 479 bring the legal representatives of the deceased respondent earlier on the record.
In the present case, the appellant had adopted a very wrong attitude from the very beginning.
In its application dated March 17, it merely said that Ram Charan died on July 21, 1957, and that Shri Bhatia, the Divisional Engineer, Telegraphs, Ambala Cantonment, learnt about it on February 3, 1958.
Shri Bhatia did not say anything more in his affidavit and did not verify it on the basis of his personal knowledge.
Why he did not do so is difficult to imagine if.
he came to know of the death on February 3, 1958.
He was the best person to say that this statement was true to his knowledge, rather than true to his belief.
Further, it appears from the judgment of the High Court that no further information was conveyed in the application dated May 13, 1958 which is not on the record.
The most damaging thing for the appellant is that the application came up for bearing before the learned Single judge and at that time the stand taken by it was that limitation for such an application starts not from the date of death of the respondent but from the date of the appellant 's knowledge of the death of the respondent.
The appellant 's case seems to have been that no abatement had actually taken place as the limitation started from February 3, 1958, when the appellant 's officer knew of the death of the respondent and the application was made within 3 months of that date.
It appears to be due to such an attitude of the appellant that the application dated March 17, 1958 purported to be simply under r. 4 O. XXII and did not purport to be under r. 9 of the said Order as well and that no specific prayer was made for setting aside the abatement.
The limitation for an application to set aside abatement of a suit does start on the death of the deceased respondent.
Article 171, First Schedule to the Limitation Act provides that.
It does not provide 480 the limitation to start from the date of the appellant 's knowledge thereof.
The stand taken by the appellant was absolutely unjustified and betrayed complete lack of knowledge of the simple provision of the Limitation Act.
In these circumstances, the High Court cannot be said to have taken an erroneous view about the appellant 's not establishing sufficient ground for not making an application to bring on record the representatives of the deceased respondent within time or for not making an application to set aside the abatement within time.
We, therefore, see no force in this appeal and dismiss it with costs.
Appeal dismissed.

dataset_name: IN-Abs

summary/full:
Ram Charan obtained a money decree against the Union of India.
An appeal was filed against that decree in the High Court.
Ram Charan respondent died on july 21, 1957.
On March 18, 1958, an application was filed in the High Court under 0.22, R .4 read with section 151 of the Code by Civil Procedure stating that the respondent had died on July 21, 1957 and the Divisional Engineer, Telegraphs, learnt of his death on February 3, 1958 and the deceased had left his widow and an adopted son as his legal representatives.
A prayer was made to bring the legal respresentatives of the deceased on record.
The High Court dismissed the application on the ground that the appellant had failed to show sufficient cause for not bringing the legal representatives of the deceased on record within time.
The appeal was also dismissed.
In the appeal before this Court, it was contended on behalf of the appellant that the mere ignorance of death of the respondent was sufficient cause for the appellant 's inability to apply for the impleading of legal representatives within time unless the appellant was guilty of some negligence or some act or omission which led to delay in his making the application, that once the respondent was served no duty was cast on the appellant to make further enquiries about the state of health of the respondent, that expresssion sufficient cause ' should be liberally construed in order to advance the cause of justice, that the Court itself had inherent power to add legal representatives to do justice to the party and that the High Court misapplied the decision of the Full Bench 468 in Firm Dittu Ram Eyedan vs Om Press Co. Ltd. to the facts of the present case.
Held that limitation for an application to set aside the abatement of an appeal starts on the death of the respondent and not from the date of the appellant 's knowledge thereof.
Held also that the Court is not to invoke its inherent powers under section 151 C.P.C. for the purpose of impleading legal representatives of a deceased respondent, if the suit had abated on account of the appellant not taking appropriate steps within time to bring legal representatives of the deceased on the record and when its application for setting aside abatement was not allowed on account of its failure to satisfy the court that there was sufficient cause for not impleading the legal representatives of the deceased in time and for not applying for setting aside of the abatement within time.
Held also that the expression sufficient cause ' is not to be liberally construed either because the party in default was the Government or because the question arose in connection with the impleading of the legal representatives of the deceased respondent.
The Court should not readily accept whatever is alleged to explain away the default.
The delay in making the application should not be for reasons which indicate the negligence of the party making the application in not taking certain steps which he could have and should have taken The court has to be satisfied that there were certain valid reasons for the applicant not knowing the death within a reasonable time.
The bare statement of the applicant is not enough.
Firm Dittu Ram Eyedan vs Om Press Co. Ltd. (1960) 1 I.L.R Punjab. 935 (F.B.), State of Punjab vs Nathu Ram ; and Jhanda Singh vs Gurmukh Singh C. A. No. 344 of 1936 dated 10.4.62, referred to.


judgement:
67 of 1953.
Petition under article 32 of the Constitution of India for a writ in the nature of habeas corpus.
Veda Vyas (V. N. Sethi and section K. Kapur, with him) for the petitioner.
M. C. Setalvad, Attorney General for India (G. N. Joshi, with him) for the respondents.
709 1953.
April 16.
The Judgment of the Court was delivered by PATANJALI SASTRI C.J.
This is a petition under article 32 of the Constitution for the issue of a writ in the nature of habeas corpus directing the release of the petitioner Dr. Ram Krishan Bhardwaj who is a medical practitioner in Delhi and is now said to be under unlawful detention.
The petitioner was arrested on the 10th March, 1953, under an order of the District Magistrate of Delhi made under section 3 of the Preventive Detention Act as amended.
The grounds of detention were communicated to the petitioner on the 15th March, 1953.
The first paragraph of that communi cation states that " the Jan Sangh, the Hindu Mahasabha and the Ram Rajya Parishad have started an unlawful campaign in sympathy with the Praja Parishad movement of Kashmir for defiance of the law, involving violence and threat to the maintenance of public order " as evidenced by the sub paragraphs which follow.
The incidents referred to in sub paragraphs (a) to (1) are said to have ranged from the 4th to the 10th March, 1953, the date on which the petitioner was arrested, but they do not directly implicate the petitioner.
They merely give particulars of the alleged unlawful activities of the three political organizations referred to above.
Subparagraph (m) is important, as, on it is founded the first contention of Mr. Veda Vyas, the learned counsel for the petitioner.
It runs as follows: "(m) On the evening of 11th March, 1953, there was very heavy brick batting indulged in by or at the instance of Jan Sangh and Mahasabha workers in Sabzimandi when the police dispersed a Jan Sangh and Hindu Mahasabha procession and several persons including policemen, journalists and other non officials were injured.
An assault was made on Miss Mridula Sarabhai and Sri Dan Dayal one of her associates received a stab injury.
" 710 It will be noticed that the incidents related in the sub paragraph are alleged to have taken place on the 11th March, the day after the petitioner was arrested and detained.
Mr. Veda Vyas relies upon it as showing that the District Magistrate did not apply his mind to the alleged necessity for the detention of the petitioner as, if he had done so, he could not possibly have referred to what happened on the 11th March as a ground of justification for what he did on the 10th The so called grounds on which the detention is said to have been based must, it was suggested, have been prepared by some clerk or subordinate in the District Magistrate 's office and mechanically signed by him.
The learned Attorney General explained that the incidents of the 11th March were referred to not as a ground for the arrest and detention of the petitioner, but merely as evidencing the unlawful activities of the movement organized by the Jan Sangh and the other political bodies of which the petitioner was an active member.
The explanation is hardly convincing and we cannot but regard this lapse in chronology as a mark of carelessness.
Notwithstanding repeated admonition by this Court that due care and attention must be bestowed upon matters involving the liberty of the individual, it is distressing to find that such matters are dealt with in a careless and casual manner.
In view, however, of the statements in the affidavit filed by the District Magistrate before us that he carefully perused and considered the reports.
and materials placed before him by responsible Intelligence Officers and that he was fully satisfied that the petitioner was assisting the movement and agitation started by the Jan Sangh, etc.
, we are not prepared to hold that the District Magistrate failed to apply his mind to the relevant considerations before he made the detention order as suggested for the petitioner.
The second contention raised by Mr. Veda Vyas is more formidable.
As already stated, the first paragraph of the statement.
of grounds, while it sets out the unlawful activities of the, three political bodies, 711 does not directly implicate the 'petitioner in any of them.
The second paragraph shows how the petitioner was concerned in those activities.
It begins by stating " The following facts show that you are personally helping and actively participating in the above mentioned movement which has resulted in violence and threat to maintenance of public order".
Then follow four sub paragraphs (a) to (d) which refer to private meetings of the Working Committee of the Jan Sangh in January and February, 1953, where, it is alleged, it was decided to launch and intensify the campaign and the petitioner made inflammatory speeches.
Sub paragraph (e) on which this contention is based runs thus : "(e) You have been organising the movement by enrolling volunteers among the refugees in your capacity as President of the Refugee Association of the Bara Hindu Rao," a local are& in Delhi.
It is argued by Mr. Veda Vyas that this ground is extremely vague and gives no particulars to enable the petitioner to make an adequate representation against the order of detention and thus infringes the constitutional safeguard provided in article 22 (5).
Learned counsel relies on the decision in Atma Ram Vaidya 's case(1) where this Court held by a majority that the person detained is entitled, in addition to the right to have the grounds of his detention communicated to him, to a further right to have particulars " as full and adequate as the circumstances permit " furnished to him so as to enable him to make a representation against the order of detention.
It was further held that the sufficiency of the particulars conveyed in the " second communication " is a justiciable issue, the test being whether it is sufficient to enable the detained person to make a representation " which, on being considered, may give relief to the detained person".
On this interpretation of article 22 (6) two questions arise for consideration : first, whether the ground mentioned in subparagraph (e) is so vague (i) 712 as to render it difficult, if not impossible, for the peti tioner to make an adequate representation to the appropriate authorities, and second, if it is vague, whether on vague ground among others, which are clear and definite, would infringe the constitutional safeguard provided in article 22(5).
On the first question, the Attorney General argued that the grounds must be read as a whole and so read, the ground mentioned in sub paragraph (e) could reasonably be taken to mean, that the petitioner was organizing the movement by enrolling volunteers from the 4th to 10th March in the area known as Bara Hindu Rao.
This interpretation is plausible, but the petitioner, who is a layman not experienced in the interpretation of documents, can hardly be expected without legal aid, which is denied to him, to interpret the ground in the sense explained by the AttorneyGeneral.
Surely, it is up to the detaining authority to make his meaning clear beyond doubt, without leaving the person detained to his own resource for interpreting the grounds.
We must, therefore, hold that the the ground mentioned in sub paragraph (e) of paragraph 2 is vague in the sense explained above.
On the second question, there is no considered pronouncement by this Court, though in some cases it would appear to have been assumed, in the absence of any argument, that one or two vague grounds could not affect the validity of the detention where there are other sufficiently clear and definite grounds to support the detention.
Mr. Veda Vyas now argues that even though the petitioner might succeed in rebutting the other grounds to the satisfaction of the Advisory Board, his representation might fail to carry conviction so far as the ground mentioned in sub paragraph (e) was concerned in the absence of particulars which he could rebut and the Advisory Board might, therefore, recommend the continuance of his detention.
The argument is not without force, as the possibility suggested cannot altogether be ruled out.
The Attorney General drew attention to the recent amendment of section 10 of the Preventive Detention 713 Act as a result of which the petitioner would be entitled to be heard in person before the Advisory Board if he so desires and, it was said that he would thus have the opportunity of getting the necessary particulars through the Board who could call upon the appropriate Government to furnish particulars if the Board thought that the demand for them was in the circumstances just and reasonable.
The petitioner would thus suffer no hardship or prejudice by reason of sufficient particulars not having been already furnished to him.
The question however is not whether the petitioner will in fact be prejudicially affected in the matter of securing his release by his representation, but whether his constitutional safeguard has been infringed.
Preventive detention is a serious invasion of personal liberty and such meagre safeguards as the Constitution has provided against the improper exercise of the power must be jealously watched and enforced by the Court.
In this case, the petitioner has the right, under article 22(5), as interpreted by this Court by a majority, to be furnished with particulars of the grounds of his detention "sufficient to enable him to make a representation which on being considered may give relief to him.
" We are of opinion that this constitutional requirement must be satisfied with respect to each of the grounds communicated to the person detained, subject of course to a claim of privilege under clause (6) of article 22.
That not having been done in regard to the ground mentioned in sub paragraph (e) of paragraph 2 of the statement of grounds, the petitioner 's detention cannot be held to be in accordance with the procedure established by law within the meaning of article 21.
The petitioner is therefore entitled to be released and we accordingly direct him to be set at liberty forthwith.
Petition allowed.
Agent for the petitioner : Ganpat Rai.
Agent for the respondent : G. H. Rajadhyaksha.

summary/full:
Under article 21 (5) as interpreted by an earlier decision of this court a person detained under the Preventive Detention Act is entitled, in addition to the right to have the ground of his detention communicated to him, to a further right to have particulars as full and adequate as the circumstances permit furnished to him as to enable him to make a representation against the order of detention and the sufficiency of particulars conveyed in the second communication is a justiciable issue, the test being whether they are sufficient to enable the detained person to make a representation which on being considered may give him relief.
The constitutional requirement that the grounds must not be vague must be satisfied with respect to each of the grounds communicated to the person detained subject to the claim of privilege under el.
(6) of article 22 of the Constitution.
Where one of the grounds mentioned was "you have been organising the movement (Praja Parishad Movement) by enrolling volunteers among the refugees in your capacity as President of the Refugee Association of Bara Hindu Rao": Held, that this ground was vague and even though the other grounds were not vague the detention was not in accordance with the procedure established by law and was therefore illegal.
Dictum: Preventive detention is a serious invasion of personal liberty and such meagre safeguards as the Constitution has provided against the improper exercise of the power must be jealously watched and enforced by the Court.


judgement:
minal Appeal No. 172 of 1962.
Appeal by special leave from the judgment and order dated March 7, 1962, of the Mysore High Court in Criminal Revision Case No. 100 of 1961.
B. Gopalakrishnan, for the appellant.
B. R. L. Iyengar and P. D. Menon, for the respondent.
May 8.
The judgment of the Court was delivered by RAGHUBAR DAYAL J.
This appeal by special leave is directed against the order of the High Court of Mysore rejecting the reference by the Sessions Judge, Shimoga Division, recommending the quashing of the commitment order of the Magistrate committing the accused to the Sessions for trial of offences under sections 307 and 326, I.P.C., on the ground that the Magistrate could not have taken cognizance of the offences without the sanction of the State Government in view of the provisions of sections 132 and 197 of the Code of Criminal Procedure.
The case against the appellant was started on the complaint of one Kenchappa who alleged that 674 the Sub Inspector and another person had severely beaten one Thimma and that the Sub Inspector, when forcibly taking away Thimma and requested by Kenchappa to excuse Thimma if he had misbehaved, wantonly fired from his revolver at Hanumanthappa and Shivalingappa.
It Is on this complaint that, after preliminary enquiry, the Magistrate committed Nagraj, the appellant, to the Court of Session for trial.
The facts of the incident, according to the The facts of the incident, according to the appellant and the basis of the counter case, are these.
The appellant was a Sub Inspector of Police in the State of Mysore.
He was posted at Yagati, Kadur Taluk, in September 1959.
On September 7, 1959, he arrested one Gidda, manufacturing illicit liquor and sent him with the constable to the police station.
Thereafter, he arrested Thimma who was supposed to be in league with Gida in manufacturing liquor.
When Thimma was being taken to the police station by the Sub Inspector and a constable a crowd of about 20 or 30 persons rushed at them, surrounded them and the police officials attacked them and rescued Thimma.
Nagraj asked those people not to resort to violence, but to remain calm.
The people however, did not pay heed to the advice, caught the constable and asked Nagraj to stay there till one Kenchappa came.
Upon this, the Sub Inspector again told them to go away without creating any trouble and said that there was no reason for him to wait for Kenchappa.
The people threatened him and the constable with dire consequences if they left the place.
just then Kenchappa came and then these persons encircled the Sub Inspector and the constable and the Sub Inspector, apprehending danger to his life and that of the constable, first fired his revolver in the air and when the people pelted stones at him and grappled with him, two shots went off from the revolver and injured two persons, Hanumanthappa and Shivalingappa.
Kenchappa snatched 675 the revolver, leather bag with the ammunition pouch and the two mahazars prepared by the SubInspector regarding the prohibition case.
The people beat the Sub Inspector and carried him to a pond saying that they would throw him into it.
They were, however, released at the remonstrance of one Basappa.
The persons who are said to have attacked Nagraj that day have also been committed to the Court of Session for trial, of offences under ss, 147, 332, 341 and 395 read with s.149, though prosecuted for offences under sections 143, 147, 149, 224, 225, 395 and 34, I.P.C. The Sessions judge made the reference for the quasbing of the commitment of the a appellant as it appeared that the two cases arose out one incident that the Sub Inspector was at the time discharging his duties, that while discharging his duties he had to disperse an unlawful assembly by force as his own life and that of his subordinate were in jeopardy and that therefore previous sanction of the Government under section 197 of the Code was necessary, for the Court 's taking cognizance of the offence against him as the Power of dismissing a Sub Inspector of Police vested in the Government.
He was also of opinion that even if the Sub Inspector had fired without any justification as alleged by the complainant, sanction under section 132 of the Code was necessary.
He observed : "Now, it cannot be gainsaid that at that time he was clearly on duty and was taking Thimma to the Police station in the discharge of his official duty as a Sub Inspector.
A large number of persons then surrounded him and rescued Thimma.
It cannot also hence be denied that there was an unlawful assembly which the SubInspector was entitled to disperse by force.
Now section 132 of the Cr.
P.C. is clearly a bar to 676 the prosecution of police officers purporting to act under Chapter IX of the Cr. P. C. which deals with unlawful assemblies without the sanction of the local Government.
" The High Court rightly observed that the Sessions judge was wrong in practically accepting the version of the appellant that he was surrounded by a number of persons who constituted an unlawful assembly and that they rescued Thimma and that therefore he was entitled to disperse the unlawful assembly by force.
The High Gourtheld that the Sub Inspector of Police could be removed from service by the Deputy Inspector General of Police and that therefore no question of sanction under section 197 arose.
It further held that before a Court could hold that the cognizance of the case had been taken by the Magistrate without sanction of the Government under section 132, it must be established that there was an unlawful assembly and that the police officer purported to disperse the assembly under any of the sections 128 to 131 of the Code.
The High Court stated later : "Section 132 Cr.
P.C. has nothing to do with the ingredients of any offence.
It is a protection against prosecution.
In order to obtain its benefit the accused person need not prove that the acts complained of were done under circumstances mentioned in Section 132 Cr.
In other words, he must place before the judge materials and circumstances justify ing an inference that there was an unlawful assembly and the acts complained of were Durported to have been done while dispersing that assembly.
" The High Court further held that it is for the Sessions judge to decide on facts established in 677 the case whether section 132 Or.
P.C. was applicable and if he came to the conclusion that the facts of the case brought it within the provisions of section 132, Cr.
P.C., the Sessions judge was at liberty to reject the complaint holding that it was barred under section 132, Cr.
P.C. Lastly, the High Court suggested that the Sessions case against the other party be tried first and that if after its trial the Sessions judge was satisfied that the complaint against the accused was barred under section 132 Or.
P.C., it would be appropriate for him to reject that complaint on that ground alone.
Learned Counsel for the appellant has raised four contentions in this Court : (1) The appellant as Sub Inspector of Police could be dismissed by the State Government alone and that, therefore, sanction under section 197 of the Code was necessary for his prosecution of the offences spurported to have been committed in the discharge of his duty.
(2) That a police officer cannot be prosecuted without a sanction from the State Government for an offence which the police officer alleges, took place during the course of performance of duties under Ch.
IX of the Code.
(3) That when both a case and a counter case have been committed for trial to the Sessions Court it could be said that the appellant has prima facie established his version of the incident and that his producing a copy of the committal order in the counter case is sufficient for holding that sanction under section 132, Or.
P.C. was necessary.
(4) That it is not necessary for the police officer to prove conclusively that he was dispersing an unlawful assembly before he can raise the plea of want of sanction as a bar from prosecution.
We are not satisfied that the appellant, the Sub Inspector can be dismissed by the State 678 Government alone.
Section 4 (c) of the Mysore Police Act, 1908 (Act No. V of 1908), hereinafter called the Act, provides that unless there be something repugnant in the subject or context the word "inspector ' in the Act, subject to such rules and orders as the Government may pass, includes 'Sub Inspector. ' Section 8 states that the appointment of Inspectors of such grades as Government may from time to time prescribe shall be made by Government and the dismissal of Inspectors of all grades shall vest in Government.
It is on the basis of these two provisions that it is submitted for the appellant that it is the Government which can dismiss him as he, though a Sub Inspector, is an Inspector for the purposes of section 8 of the Act.
The contention is not sound.
It is the dismissal of Inspectors of all grades which vests in the Government.
It appears there are Inspectors of various grades.
Inspectors of some grades were appointed by the Government but the dismissal of Inspectors of all grades is vested in the Government.
In this context the word 'Inspector ' in section 8 will not include Sub Inspector as he could not possibly be an Inspector of any grade.
Subsection (1) of section 26 of the Act further provides that any officer authorised by sub section
(3) in that behalf may dismiss any police officer below the grade of Assistant Superintendent and sub section
(3) provides that subject to the provisions of section 8, the InspectorGeneral shall have authority to punish any Police Officer below the grade of Assistant Superintendent.
It follows that the Inspector General of Police can dismiss a Sub Inspector who is a police officer below the grade of Assistant Superintendent.
No sanction therefore, of the State Government for the prosecution of the appellant was necessary even if he had committed the offence alleged while acting or purporting to act in the discharge of his official duty.
Before dealing with the other contentions raised we may refer to the provisions of Ch.
IX of 679 the Code of Criminal Procedure which has the heading 'unlawful assemblies. ' Section 127 empowers any Magistrate or officer in charge of a police station to command any unlawful assembly or any assembly of five or more persons likely to cause a disturbance of the public peace, to disperse and further provides that it shall be the duty of the members of such assembly to disperse on command.
If such a command is not obeyed by the members of such an assembly, section 128 authorizes the Magistrate or the officer in charge of the police station to use civil force to disperse the assembly.
Civil force can also be used even without giving such command, if the conduct of the assembly shows a determination not to disperse.
Such officer can call upon any male person to assist in the dispersing of the assembly and can also arrest and confine the persons who form part of the assembly.
Sections 129 and 130 deal with the use of military force in the dispersing of such assembly and of the duty of the officer commanding the armed forces called upon to disperse such assembly.
Section 131 authorises any commissioned officer of the armed forcees, in the absence of any communication with any Magistrate, to disperse such an assembly with the help of armed forces in certain circumstances.
The officers and persons who act under these provisions for the purpose of dispersing, the unlawful assembly are protected from prosecution under the provisions of section 132 on which the appellant relies.
The relevant portion of this section, for the purpose of this appeal, reads : "No prosecution against any person for any act purporting to be done under this Chapter shall be instituted in any.
Criminal Court, except with the sanction of the State Government; and (a) no Magistrate or police officer acting under this Chapter in good faith, x x 680 shall be deemed to have thereby committed an, offence".
It is clear that when a complaint is made to a criminal court against any police officer and makes allegations indicating that the police officer had acted or purported to act under sections 127 and 128 of the Code and in so doing committed some offence complained of, the Court will not entertain the complaint unless it appears that the State Government had sanc tioned the prosecution of that police officer.
If the allegations in the complaint do not indicate such facts, the Court can have no ground for looking to the sanction of the Government and in the absence of such a sanction for refusing to entertain the comp laint.
It must proceed with the complaint in the same manner as it would have done in connection with complaints against any other per son.
The occasion for the Court to consider whether the complaint could be filed without the sanction of the Government would be when at any later stage of the proceedings it appears to the Court that the action of the police officer complained of appears to come within the provisions of Ss. 127 and 128 of the Act.
This can be either when the accused appears before the Court and makes such a suggestion or when evidence or circumstances Prima facie show it.
The mere suggestion of the accused will not, however be sufficient for the Court to hold that sanction was necessary.
The Court can consider the necessity of sanction only when from the evidence recorded in the: proceedings or the circumstances of the case it be possible to ' hold either definitely that the alleged criminal conduct was committed or was probably committed in connection with action under sections 127 and 128 of the Code.
It is contended for the appellant that if the question of sanction is not decided in the very first 681 instance when a complaint is filed or when the accualleges that he could not be prosecuted for the alleged offences without the sanction of Government in view of section 132 of the Code, the protection given by this section will be nugatory as the object of giving this protection is that the police officer be not harassed by any frivolous complaint.
There may be some such harassment of the accused, but the Court has no means to hold in the circumstances alleged that the prosecution of the accused was in connection with such action as the complaint did not disclose the necessary circumstances indicating that fact and the bare word of the accused cannot be accepted to hold otherwise.
just as a complainant is likely to omit mentioning the facts which would necessitate the sanction of Government before he can prosecute the accused, the accused too is likely to make such allegations which may lead to the rejection of the complaint for want of sanction.
It is well settled that the jurisdiction of the Court to proceed with the complaint emanates from the allegations made in the complaint and not from what is alleged by the accused or what is finally established in the case as a result of the evidence recorded.
In this connection reference may be appropria tely made to the observations of this Court in connection with prosecution to which the provisions of section 197 of the Code apply.
In Matajog Dobey vs H. C. Bhari (1), in connection with the question "is the need for sanction to be considered as soon as the complaint is lodged and on the allegations therein contained?", it was said : "The question may arise at any stage of the proceedings.
The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry or even in (1) ; ,935, 682 the course of the prosecution evidence at the trial, may establish the necessity for sanction.
Whether sanction is necessary or not may have to be determined from stage to stage.
The necessity may reveal itself in the course of the progress of the case.
" It follows, therefore, that the contention that a police officer cannot be prosecuted without the sanction from the State Government for an offence which he alleges to have taken place during the course of his performing the duties under ("h.
IX of the Code cannot be accepted.
His mere allegation will not suffice for the purpose and will not force the Court to throw away the complaint of which it had properly taken cognizance on the basis of the allegations in the complaint.
The third contention really is that the Court can hold that sanction wag necessary if the appellant could prima facie show that his action which is complained of was in connection with the performance of his duties under ss.127 and 128 of the Code.
Assuming that this is the position in law, it does not appear from the record which consists of the orders of the Sessions judge and the High Court that the evidence in this case prima facie establishes that the appellant 's contention that his acts complained of were such for which he could not be prosecuted without the sanction of the Government.
In this case the High Court has definitely said that the Sessions judge did not arrive at any such conclusion and had made the reference on a mere acceptance of the accused 's version, for which there was no justification.
It is contended for the appellant that the mere fact that some of the persons alleged to have formed part of the unlawful assembly were prosecuted by the State and have also been committed by the Magistrate to the Sessions Court for trial establishes prima facie that the accused 's contention about the necessity 683 for sanction under section 132 of the Code.
is correct.
The commitment of the other accused is on the basis of evidence in that case and cannot be legally taken into consideration to decide the question raised in this case.
The question is to be decided on the evidence in this case and not on the basis of evidence and inferenccs drawn in the other case.
The third contention, therefore, has no force.
The next question and the real question to decide then is to determine what the accused has to show in order to get the benefit of the provisions of section 132 of the code in the case.
To get such a benefit and to put off a clear decision on the question whether his conduct amounts to an offence or not, the appellant has to show (i) that there was an unlawful assembly or an assembly of five or more persons likely to cause a disturbance of the public peace ; (ii) that such an assembly was commanded to disperse ; (iii) that either the assembly did not disperse on such command or, if no command had been given; its conduct had shown a determination not to disperse ; and (iv) that in the circumstances he had used force against the members of such assembly.
He has to establish these facts just in the same manner as an accused has to establish any other exception he pleads in defence of his conduct in a criminal case.
It is sufficiently well settled that it is for the prosecution to prove the offence in the sense that the offence was committed in the circumstances in which no recourse to an exception could be taken and, therefore, if the accused establishes such circumstances which either conclusively establish to the satisfaction of the Court or make the Court believe them to be probable that the case comes within the exception that would be sufficient compliance on the part of the accused with respect to his proving the exception to prove which the onus was on him.
In the present case therefore the accused has to show to the Court that the alleged offences were committed during the performance of his 684 duties in the circumstances narrated above.
On his so showing, it would be the duty of the Court to hold that the complaint could not have been entertained without the sanction of the Government under section 132 of the Code.
To show this is not equivalent to the accused establishing facts which would be necessary for him to take advantage of the provisions of section 79 of the Indian Penal Code as had been thought in some of the cases cited to us.
Section 79, I.P.C. deals with circumstances which when proved makes acts complained of not an offence.
The circumstances to be established to get the protection of section 132, Or.
P.C. are not circumstances which make the acts complained of no offence, but are circumstances which require the sanction of the Government in the taking of cognizance of a complaint with respect to the offences alleged to have been committed by the accused.
If the circumstances to be established for seeking the protection of section 132 of the Code were to make the alleged conduct no offence, there could be no question of a prosecution with the sanction of the State Government.
This distinction had not been considered in the cases we were referred to.
It is not necessary to refer to those cases which were ultimately decided on the basis that the allegations either in the complaint or taken together with what had appeard from the evidence on record justified the conclusion that the action complained of came under sections 127 and 128 of the Code and that no prosecution in con nection with such an action could be instituted in the Court without the sanction of the State Government.
The last question to consider is that if the Court comes at any stage to the conclusion that the prosecution could not have been instituted without the sanction of the Government, what should be the procedure to be followed by it, i e., whether the Court should discharge the accused or acquit him of the charge if framed against him or just drop the procee dings and pass no formal order of discharge or 685 acquittal as contemplated in the case of a prosecution under the Code.
The High Court has said that when the Sessions judge be satisfied that the facts proved bring the case within the mischief of section 132 of the Code then he is at liberty to reject the complaint holding that it is barred by that section.
We consider this to be the right order to be passed in those circumstances.
It is not essential that the Court must pass a formal order discharging or acquitting the accused.
In fact no such order can be passed.
If section 132 applies, the complaint could not have been instituted without the sanction of the Government and the proceedings on a complaint so instituted would be void,, the Court having no jurisdiction to take those proceedings.
When the proceedings be void, the Court is not competent to pass any order except an order that the proceedings be dropped and the complaint is rthe relating to Bombay and reads thus: "(1) The body known as the Bombay State Road Transport Corporation and the Board thereof, referred to in the notification of the Government of Bombay, No. 1780/5, dated the 16th November, 1949 (hereinafter referred to as the existing Corporation ' and 'Board ' respectively) shall, notwithstanding any defect in, or invalidity of the enactment or order under which they were constituted, be deemed for all purposes to have been validly constituted as if all the provisions of the said notification had been included and enacted in this section and this section had been in force continuously on and from the said date, and accordingly (a) all action by, and all transactions with, the existing Corporation or Board, including any action or transaction by which any property, asset or right was acquired or any liability or obligation whether by contract or otherwise, was incurred, shall be deemed to have been validly and lawfully taken or done; and (b) no suit, prosecution or other legal proceeding shall lie against the Government of Bombay or any member of the 694 Board or any officer or servant of the existing Corporation in respect of any action taken by, or in relation to the setting up of, the existing Corporation or Board merely on the ground of any defect in, or invalidity of, the enactment or order under which the existing Corporation or Board was constituted.
(2) On the establishment of a Corporation under section 3 in the State of Bombay (hereinafter referred to as 'the New Corporation ') (a) the existing Corporation and Board shall be deemed to be dissolved and shall cease to function; (b) all property and assets vesting in the existing Corporation shall vest in the new Corporation; (c) all rights, liabilities and obligations.
of the existing Corporation, whether arising out of any contract or otherwise, shall be the rights, liabilities and obligatorily, respectively, of the new Corporation; and (d) all licences and permits granted to all contracts made with, and all instruments executed on behalf of the existing Corporation or Board shall be deemed to have been granted to, made with, or executed on behalf of, the new Corporation and shall have effect accordingly.
" It will be clear from these provisions that the old Corporation was recognised as having always had valid legal status and deemed to have been properly incorporated.
On the establishment of a Corporation under section 3 of the Act of 1950 the old 695 Corporation was dissolved.
But all action by and transaction with the old Corporation including any action or transaction by which any property or asset etc., was acquired by or for the old Corporation was deemed to have been validly or lawfully taken or done.
It is common ground that in consequence of the passing of the Act of 1950 the Bombay Act of 1950 stood impliedly repealed and was in fact expressly repealed 'by the Bombay Act 29 of 1955.
The provisions which we have set out above clearly show that the State Transport Corporation having been incorporated by an Indian law is a Company.
Since, however, the compensation to be awarded for the acquisition is to be paid only by the Corporation and no portion of it was paid by the Government, could it be said that the terms of the proviso to sub section
(1) of section 6 have been satisfied ? It is contended by the learned Attorney Generalon behalf of the respondent that the funds of the Corporation have themselves come out of public revenue inasmuch as they consist of moneys provided by the State of Bombay.
Even assuming that the funds of the Corporation consist only of the moneys which have been provided by the State of Bombay it is difficult to appreciate how they could be regarded as part of the public revenue.
No doubt, the source of the funds would be public revenue but the funds themselves belong to the Corporation and are held by it as its own property.
They cannot, therefore, be regarded as 'public revenue ' in any sense.
It was then said by reference to several provisions of the Act that the Government is entitled to exercise control over the Corporation, that the profits earned by the Corporation would go to the Government, that if the Corporation was wound up all its assets would also go to the Government and that, therefore, the Corporation could be regarded as noth ing more than a limb of the Government.
Even though that may be so.
the Corporation is certainly not a department of Government but is a separate legal 696 entity and, therefore, moneys coming out of public revenues whether invested, loaned or granted to it would change their original character and become the funds or assets of the Corporation when they are invested in or transferred or loaned to it.
While, therefore, the terms of the proviso could be said to have been satisfied because compensation is to be paid by the Corporation, the acquisition will be bad because the provisions of Part VII of the Land Acquisition Act have not been complied with.
In order to get out of this difficulty the learned Attorney General argued that the State Transport Corporation is a local authority.
The expression "Local authority" is not defined in the Land Acquisition Act but is defined in section 3 (31) of the , as follows : " 'local authority ' shall mean a municipal committee, district board, body of port commissioners or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund:" The definitions given in the , govern all Central Acts and Regulations made after the commencement of the Act.
No doubt, this Act was enacted later in point of time than the Land Acquisition Act ; but this Act was a consolidating and amending Act and a definition given therein of the expression "local authority" is the same as that contained in the earlier Acts of 1868 and 1887.
The definition given in section 3 (3 1) will, therefore, hold good for construing the expression "local authority" occurring in the Land Acquisition Act.
We have already quoted the definition.
It will be clear from the definition that unless it is shown that the State Transport Corporation is an 697 "authority ' and is legally entitle i to or entrusted by the Government with control or management of a local fund it cannot be regarded as a local authority.
No material has been placed before us from which it could be deduced that the funds of the Corporation can be regarded as local funds.
It was no doubt submitted by the learned Attorney General that the Corporation was furnished with funds by the Govern ment for commencing its business ; but even if that were so, it is difficult to appreciate how that would make the funds of the Corporation local funds.
Learned Attorney General then relied upon the provisions of section 29 of the Bombay State Road Transport Act, 1950, which provides that the Corporation shall for all purposes be deemed to be a local authority.
No doubt that is so.
But the definition contained in this Act cannot override the definition contained in the of 1897 which alone must apply for construing the expression occur ring in a Central Act like the Land Acquisition Act unless there is something repugnant in the subject or context.
Though land acquisition is now in the concurrent list and therefore, the State can legislate, the Bombay Act not having received the President 's assent, cannot prevail against the meaning of the expression 'local authority ' in that Act.
No repugnancy is pointed out.
Then again, the Act of 1948 had empowered the Province of Bombay, among other provinces, to appoint Road Transport Corporations and conferred power on the Provincial Governments under sections 5 and 6 to deal with compensation and winding up of Corporations so appointed.
In pursuance of this power and after the commencement of the Constitution, the Bombay Act of 1950 had been enacted by the State Legislature of Bombay.
But by the repeal of the Act of 1948 by the Central Act of 1950 the foundation for the continuance and existence of the Bombay Act 698 of 1950 disappeared.
Moreover, since section 41 of the Central Act provided that a Corporation shall be deemed to be a local authority within the meaning , and not within the meaning of any other law, the provisions of section 29 of the Bombay Act could in no circumstances be said to survive.
In view of all this the learned Attorney General did not press his argument on the point further.
In our view the acquisition impugned in this case having been made ' for the benefit of a Corporation, though for a public purpose, is bad because no part of the compensation is to come out of public revenues and the provisions of Part VII of the Land Acquisition Act have ' not been complied with.
We, therefore, allow the appeals and decree the suits of the appellants with costs in all the courts.
Appeals allowed.

summary/full:
The appellant, a Sub Inspector of Police in Mysore State, was committed to Sessions Court for trial on the complaint of K. K alleged that the appellant and another person had severely beaten T, and that the appellant, when forcibly taking away T, and requested by K to excuse T, wantonly fired on two persons.
The appellant 's case, on which his counter case is based, is that while he and a constable, after arresting, were taking T to the P. )lice Station, 20 or 30 persons attacked them and rescued T. Not heeding to appellant 's advice to desist from violence.
the crowed asked him to wait till K came.
On appellant 's refusal, the crowd threatened.
just then K came.
Apprehending danger to their lives, the appellant first fired in the air, but when the people pelted stones and grappled him, two shots went off injuring two persons.
K snatched his revolver and two mazahars.
prepared by the appellant in T 's case, and the people beat him.
These persons have also been committed to the Sesions Court for trial.
The Sesions Judge made the reference for quashing the commitment of the appellant, holding that the Magistrate could not have taken cognizance of the offences without the sanction of the State Government in view of the provisions of sections 132 and 197 Code of Criminal Procedure.
The High Court rejected the reference of the Sessions Judge for quashing the commitment order.
On appeal by special leave, the appellant contended that (1) the appellant could be dismissed by the State Government alone and, therefore, sanction under section 197 Code of Criminal Procedure was necessary ; (2) a police officer cannot be prosecuted without a sanction for an offence which the police officer alleges took place in course of his duty ; (3) when a case and 672 a counter case are both committed to Sessions Court, it should be inferred that the appellant has prima facie established his version of the incident and that his Producing a copy of the committal order in the counter case is sufficient for holding that sanction under section 132 Code of Criminal Procedure was necessary, and (4) it is not necessary for the police officer to prove conclusively that he was dispersing an unlawfull assembly before he can raise the plea of want of sanction.
Hold that (1) in view of the provisions of sections 4 (C), 8 and sub sections
(1) & (3) of section 26 of the Mysore Police Act, the Inspector General of Police can dismiss Sub Inspector and therefore, no sanction of the State Government for prosecution of the appellant was necessary even if he had committed the offences alleged while acting or purporting to act in discharge of his official duty ; (2) the court can consider the necessity of sanction only when from the evidence recorded in the proceedings or the circumstances of the case it be possible to hold either definitely that the alleged offence was committed or was probably committed in connection with action under sections 127 and 128 of the Code.
If at any stage of the proceedings it 'appears to the court that the action of the police officer complained of comes within the provisions of sections 127 and 128 of the Code, the court should hold that sanction was necessary.
The jurisdiction of the court to proceed with the complaint emanates from the allegations made in the complaint and not from what is alleged by the accused or what is finally established in the case as a result of the evidence recorded.
Majajoj Dobey vs H. C. Bhari, ; , referred to.
(3) in the present case it does not appear from the record that the evidence prima facie establishes the appellant 's contention that be could not be prosecuted without the sanction of the Government.
This question is to be decided on the evidence in this case and not on the basis of evidence and inferences drawn in the other case ; (4) in order that the appellant can get the benefit of the provisions of section 132 of the Code, he has to establish that (i) there was an unlawful assembly likely to cause disturbance of public peace, (ii) the assembly was commanded to disperse,(iii) the assembly did not disperse on the command or, if no command had been given, its conduct had shown a determination not to disperse; and (iv) in the circumstances he had 673 used force against the members of such assembly.
This he has to do in the same manner as an accused has to establish an exception he pleads in his defence.
Therefore, the accused in the present case has to show to the court that the alleged offences were committed during the performance of his duties and on his so doing the court would hold that the complaint could not proceed without the sanction of the Government under section 132 of the Code.
Held further, that if the court decides that section 132 of the Code applies to the case the proceedings on the complaint instituted without the sanction would be void and the proper order for it to pass would be that the proceeding be dropped and the complaint rejected.