judgement:
Appeal No. 154 of 1961.
Appeal by special leave from the judgment and order dated October 31, 1960, of the National Industrial Tribunal (Bank Disputes), Bombay, in Reference No. 1 of 1960.
WITH Petitions Nos.
70 80 and 82 of 1961.
Petitions Under Article 32 of the Constitution of India for enforcement of Fundamental Rights.
A.S. R. Chari, V. G. Raw, D. P. Singh, Al.
K. Ramamurthi.
R. K. Garg and section C. Agarwal, for the appellant and the petition (in Petn.
No. 80 of 61).
M. C. Setalvad, Attorney General of India, N. V. Phadke, K. H. Bhabha, J. B. Dadachanji, section N. Andley, Rameshwar Nath and P. L. Vohra, for respondents Nos.
2 17 and 19 34 (In appeal and Petn.
No. 80 of 61).
J.B. Dadachanji, section N. Andley, Rameshwar Nath and P. L. Vohra, for respondents NOS.
41 49 (In appeal and Petn.
80 of 1961).
Anand Prakash, for Respdts.
35 40 (In Petn.
No. 80 of 61).
A. V. Viswanatha Sastri, D. P. Singh, M. K. Ramamurthi, R. K. Garg and section C. Agarwal, for Intervener No. 2.
D.S. Nargolkar and K. R. Choudhri, for Petitioners Nos. 70 and 82 of 61).
M. C. Setalvad, Attorney General of India, C.K. Daphtary, Solicitor General of India, H.N. Sanyal Additional Solicitor General of India, J.B Dadachanji, 272 section N. Andley, Rameshwar Nath and P. L. Vohra, for Respdt No. 2 (In Petns.
Nos. 70 and 82 of 61).
Naunit Lal .for intervener No. 3.
M. C. Setalvad Attorney General of India and T. sen, for Intervener No. 1. 1961.
August 28.
The Judgment of the Court was delivered by AYYANGAR, J.
Civil Appeal No. 154 of 1961 has been filed on special leave obtained from this Court Against an order of K. T. Desai, J., functioning as the National Industrial Tribunal (Banks Disputes) Bombay dated October 31, 1960.
The point arising for decision in the appeal is as regards the constitutional validity of section 34A of the Banking Companies Act, 1949 which was enacted on August 26, 1960 as an amendment to the parent Act (Act X of 1949).
The appellant before this Court is the All India Bank Employees ' Association which is a trade union organization of Bank Employees of several banks operating in India The Punjab National Bank Employees ' Union, which is a trade union with similar objects has been committed to intervene in this appeal in support of the appellant union The three other Writ Petitions are by other Bank Employees ' Unions whose description would be apparent from the cause title and all these cases have been heard together because in the writ petitions also the point raised is identical, viz., the validity of s.34A of the Banking Companies Act, which will be referred to hereafter as the impugned provision.
Section 34A whose validity is the matter in dispute in these proceedings runs in the following terms "34A. (1)Notwithstanding anything contained in section 11 of the .
or any other law for the time being in force, no banking company 273 shall in any I proceeding under the said Act or in any appeal or other proceeding arising therefrom or connected therewith, be Compelled by any authority before which such proceeding is pending to produce, or give inspection of, any of its books of account or other document or furnish or disclose any statement or information, when the banking company claims, that such document, statement or information is of a confidential nature and.
that: the production or inspection of such document or the furnishing or disclosure of such statement or information would involve disclosure of information relating to : (a)any reserves not shown as such in its published balance sheet ; or (b)any particulars not shown therein in respect of provisions made for bad and doubtful debts and other usual or necessary provisions.
(2)If, in.
any such proceeding in relation to any banking company other than the Reserve Bank of India,, any question arises as to whether any amount out of the reserves or provisions referred to in sub section (1) ,should be taken into account by the authority before which such proceeding is pending, the authority may, if it so thinks fit, refer the question to the Reserve Bank and the Reserve Bank shall after taking into account principles of sound banking and all relevant circumstances concerning the banking company, furnish to the authority a certificate stating that the authority shall not take into account any amount as such reserves and provisions of the banking company or may take them into account only to the extent of the amount specified by it in the certificate, and the certificate of the Reserve Bank on 274 such question shall be final and shall not be called in question in any such proceeding.
(3)For the purposes of, this section, "banking, company" shall have the meaning assigned to it in the , Before commencing the examination of the points in controversy and the grounds on which the legality of the above provision is impugned.
It would be helpful for a better appreciation of the problem if we set out in very brief outline, the history of the steps which led to the enactment in dispute ' There was a long standing practice in England of Banking Companies, as distinguished from companies carrying on other commercial etc.
activities, not to disclose, in their balance sheets and Profit & Loss accounts, bad and doubtful debts and the provision made therefore, as well as, the secret reserves created and held under various items a practice which received judicial recognition by Buckley, L., J. in .Newton vs Birmingham Small Arms Co. Ltd. (1) This practice was followed by several banks in India and questions arose from time to time as to how far the practice was consistent with the statutory provisions as to disclosure contained in the several Companies Acts enacted from time to time.
; We shall, how ever, add that the desirability and; even the legality of this practice has not gone without challenge, though there has been a considerable body of opinion which has held this to be salutary and necessary for the preservation and progress of a credit institution like a bank.
We are not now concerned with the desirability or ethics of the practice which is a matter for the consideration of the legislature but as to the steps by which accord was established between the practice and the law.
The Indian Companies Act of 1866 drew no distinction between the contents of balance sheet,% of banking companies as distinguished from those of (1) 275 other companies and both were required to disclose a list of debts owing to the concern which were considered bad or doubtful Pro visions on the same lines, i. e., without any, distinction between Banking and other companies, were copied and continued by the Indian Companies Act of 1882.
When, however, the Companies Act of 1913 was enacted, Form F ' to the 3rd Schedule to the Act contained a note in respect of the sub heading ' 'book debts ' under the head Property & Assets ' in the balance sheet, reading "distinguishing ill the case of a bank between those considered good and in respect of which the bank is fully: secured and those considered good for which the bank holds no security other than the debtor 's personal security; and distinguishing in all cases between debts considered good, and debts considered doubtful or bad.
Debts due b y directors or other officers of the company or any of the either severally or joint with any other persons to be separately stated in all cases.
" It would be seen that by reason of this note the obligations imposed upon banks as regards the classification of their; assets and the information to: be disclosed became slightly more detailed than in ' the case of other companies.
The practice, 'however, of bankers to which we adverted earlier not to disclose or not to disclose to the full extent bad and doubtful debts but to make, provision for them by setting aside under other heads, sufficient moneys which would operate as secret reserves, so that the credit of the institution would not be affected while its financial stability would remain unimpaired; was continued notwithstanding this, change in the form.
The Central Bank of India Limited in its published, balance sheets of the year 1925 adopted the above practice which however, wasn 't obviously in strict conformity with the requirements of From 'F 'to the third schedule read with note.
The 276 managing director of the bank was prosecuted by one Shamdasani who was a shareholder of the bank ,or "filing and publishing statements which were false in material particulars" an offence punishable under section 282 of the Indian Companies Act.
The Magistrate acquitted the accused on the ground that the balance sheet was in accordance with the usual practice of bankers and that the reserves of the company which were shown under various heads though not as a specific provision for bad and doubtful debts covered the possible losses several times.
Ail application for revision was filed before the High Court of Bombay and Fawcett, J. allowed it holding that a declared provision.
of the form cannot be allowed to be whittled down by general considerations as to the object of a balance sheet.
" This judgment was rendered on February 28, 1927 (vide Shamdasani vs Pochkanwala (1) and very soon thereafter the Government of India intervened by a notification dated March 29, 1927 under section 151 of the companies Act 1913 amending form 'F ' and as amended banks were excluded from the requirement of disclosing the reserve for bad and doubtful debts under the heading, `capital and Liabilities ' in the left hand side of the balance sheet, and in the right hand column "book debts which were bad and doubtful for which provision had been made to the satisfaction of the auditors",, were not required to be shown as part of the property and assets of a Bank.
The provisions of the Companies Act of 1913 underwent numerous changes by the amending Act of 1936 which included inter alia one whereby the change effected by the Notification, dated March 29, 1927, in Form `F ' were omitted and Form `F 'was made to retain the note which accompanied it under the Act of 1913 without the exception in favour of banks effected by the Notification.
This was possibly unintended, because on the day after the amending Act came into operation, the Central Government published a Notification on January 16, 1937 (1) A.I.R. 1927 Bom.
414 : 277 again under s.151 of the Companies Act restoring the alterations in the balance sheet Form 'F ' as had been effected by the prior Notification ,of March 1927.
The validity of this Notification was questioned as being beyond the powers of the Central Government by Shamdasani who filed a complain against the Central Bank of India Limited and its directors charging them with having issued a false balance sheet for the year ending December 31, 1939 a balance sheet which was in conformity with the form as modified by the Notification.
The Magistrate upheld the validity of the Notification and quitted the accused.
Shamdasani preferred a revision to the High Court and a full Bench of the Bombay High Court held that the Notification was beyond ' the powers of the Central Government, though the order of acquittal was affirmed upholding the plea of the accused that their act was bona fide in that they believed the alteration in the form to be valid (Vide Shamdasani vs The Central Bank of India Ltd.(", Immediately after 'this judgment the Central legislature passed Act XXX of 1943 with retrospective effect validating the Notification and amending the relevant sections of the Companies Act.
(sections 132,151, article 107) so as to empower the Government to effect changes in the form of the balance sheet in the manner in which they had done in January ' 1937.
The next event in order of date relevant to the present context is the report of the Company, Law Amendment Committee of the United Kingdom presided over by Mr. Justice Cohen where the entire question of undisclosed reserves was fully discussed.
The pros and cons of the question were elaborately considered by the Committee and it is sufficient therefore in this connection to a short passage in the report.
In paragraph 101 the problem is thus set, out : "The chief matter which has and controversy is the question of undisclosed or, a. (1) I. L. R. 278 the Are, frequently called, secret or inner reserves.
An undisclosed reserve is commonly created by using profits to write down more than is necessary such assets as investments,freehold and leasehold property or plant and machinery by creating excessive provisions for bad debts or other contingencies by charging capital expenditure to revenue ; or by undervaluing stock in trade.
Normally the object of creating an undisclosed reserve is to enable a company to avoid violent fluctuations in its published profits or its dividends.
" The Committee made number of recommendations several of which were adopted in ' the U. K. Companies Act of 1948, and those relevant ' to the point under discussion served to bring the law as to the contents of a balance sheet of a Banking Company unto.
line with the practice of sound and well managed banks.
In India, special legislation in relation to Banking Companies embodying several of these recommendations was enacted in the shape of the Banking Companies Act 1949 (Act of 1949).
Section 29 of the Act laid down the law in regard to requirements of the contents of the balance sheets of banks.
The balance sheet and Profit & Loss account were to be in the form set out in the 3rd schedule to that and sub section
(3) of that section exempted Banking Companies from the, requirements of conforming to the form of balance sheet and Profit & Loss, account of companies registered under the Indian Companies Act; and the Central Government were empowered by sub section
(4) to amend the, form set out in the schedule by Notifications published in the official.
, Gazette.
In Form 'A ' which provided the model of a balance sheet 'and Profit & Loss account in the case of banks, there was not much change as compared to the requirements of the previous law except that in the Profit & Loss account (Form 'B ' )I the third schedule) the provision for bad and doubtful debts was permitted to be excluded from the 279 income so that the amount of bad and doubtful debts did not figure separately on the income side of the profit & loss account.
The income as required to be shown was "income (less provision made during the year for bad and doubtful debts)".
This last item was modified by a Notification issued under the power conferred by s.29(4) of the Act in December 1951, so that after amendment .the beading "Income" in the Profit & Loss Account ran: "Income (less provision made during the year for bad and doubtful debts and other usual and necessary provisions").
Thus so far as shareholders of Banks and the general public including the customers of the bank were concerned, banks were relieved from the obligation of disclosing the entirety of their reserves as such and also of the extent of bad or doubtful debts and the provision made therefore.
While the law was in this state disputes arose between the employees of banks all over India and the respective banks with regard to wages, conditions of work etc.
which were referred by the Central Government in June 1949 to an ad hoc Tribunal with Shri K. C. Sen, a retired Judge of the Bombay High Court as Chairman.
The Tribunal passed an award but its validity was successfully challenged in this Court in April 1951 on the ground that all the members of the Tribunal who passed the award were not those who had all inquired into the dispute.
Thereafter a fresh Tribunal was appointed in January 1952 with Shri section Panchapages Sastri, a retired Judge of the High Court of Madras as Chairman.
The award of this Tribunal was published in April, 1953, but it is not necessary to state its terms.
Appeals against the award were preferred to the Labour Appellate Tribunal both by the banks as well as by workmen.
The Appellate Tribunal which heard the appeal consisted of three members with Shri Jeejeebhoy as president.
The claim of the workers in the appeal before the Appellate Tribunal in great part related to a 280 demand for increased wages and salaries and the main defence of the banks was that they had not the capacity to pay anything beyond what the Sastry Tribunal had granted.
The Jeejeebhoy Tribunal set out their difficulties in assessing the plea of incapacity raised by the banks in the context of the provisions of the Banking Companies Act and the form of balance sheet prescribed thereunder in the following terms : "At the very outset there is an initial difficulty in arriving at a correct estimate of the financial position of banks.
There are two circumstances which militate against our securing a proper insight into the financial state of banks.
We refer in particular to (a) the undisclosed or secret reserves and (b) to the manner in which it is permissible in law for a banking company to exhibit its balance sheet.
It is not in dispute that bank do have undisclosed or secret reserves which they acquire in a number of ways, and such undis closed reserves cannot be ascertained from the balance sheet. . . . . . . x x x The other difficulty with which we are confronted at the outset is the manner in which a bank is permitted to present its profit & lose account.
On the income side the form originally prescribed by the Banking Companies Act required the banks to declare "Income less provision made during the year for bad and doubtful debts)" ; this has now been altered by an amendment made by the Central Government in exercise of the powers conferred under sub section 4 of section 29 of the Banking Companies Act to read "Income (less provision made during the year for bad and doubtful debts and other usual or necessary provisions)".
The effect of this alteration is that the profits as shown for any 281 particular year are first shown not only of bad and doubtful debts but also of 'other usua l or necessary provisions ' before being shown in the balance sheet. . . .
It maybe that these other usual or necessary provisions ' have been passed by the Board of Directors, and by the auditors of the concern and may even have been scrutinized by the Reserve Bank of India ; but it is our duty and function to decide the question of the capacity of a bank to pay, and in the absence of important information of this character our estimate of the capacity of a concern to pay must necessarily be incom plete. . . .
Banks feel that they now have the form of the Banking Companies Act to shield themselves against an enquiry on the subject ; but insofar as we are concerned we consider these undisclosed reserves and these appropriations.
relevant for the purposes of our investigation and in their absence we would have to decide as beat as we could from the other materials before us; and draw such inferences as justified.
" It was the contention of the workmen that an Industrial Tribunal had the right in law to compel banks to sis, lose their secret reserves as well as the amount of "the bad and doubtful debts and other necessary provisions" which bad been excluded under the head "income" in the, Profit & Loss Account of banks.
This matter was agitated by them before this Court in State Bank of India and others vs Their Workmen (1) being an.
appeal against the decision of the Labour Appellate Tribunal.
In view, however, of the conclusion reached by this Court on other parts of the case it refrained from pronouncing upon the correctness or otherwise of this claim by the workmen.
The diputes between the employees of banks (1)(1959), 2 L.T L. J. 205.
282 and the managements, however, continued with the result that on March 21, 1960 the Central Government in exercise of the powers conferred on it by sub section
(1A) of section 10 of the referred the dispute which related to several matters to the National Tribunal constituted by & Notification of Government of the same date, K. T. Desai, J. was the Tribunal so appointed.
Most of the major banks in the country were made parties to the reference including the Reserve Bank and State Bank of India.
After the Tribunal started functioning and after the parties formulated their respective contentions, applications were filed by the Bank Employees Association on June 9, 1960, for directing the respondent banks to produce before the Tribunal for the purposes of adjudication several documents listed in the applications.
Among the items in respect of which production was thus sought were (1) statements showing "the secret reserves in any form" of each bank from 1954 right upto December 31, 1959 ; and (2) statements showing the provision made "for bad and doubtful debts and other usual and necessary provisions" during the years 1954 to 1959 and the total amounts outstanding in such items in each bank in the said years.
The banks filed their reply on July 16, 1960.
The production of the documents and the information called for on several of the matters including the above two was resisted by the Indian Banks Association (being an association of employers) on the ground that they were by law exempted from disclosure in the interest of the industry and the public and claimed absolute privilege from making the disclosure.
It was at this stage that the impugned provision was enacted by Parliament as an amendment to the Banking Companies Act.
As several of the banks relied upon the impugned provisions in support of their plea that they could not be compelled to disclose either the quantum of their secret reserves or their nature, or as regards the provision made in 283 the several years for "bad and doubtful debts and for other reasonable and necessary provision", the bank employees association challenged the constitutional validity of section 34A of the Banking Companies Act, which, if valid, could have afforded a sufficient answer to the demand for production of the documents in relation to these matters.
This objection was argued before the National Tribunal which upheld the validity of the section.
As we have stated earlier, Civil Appeal No. 154 is directed against and challenges the correctness of this decision.
The Writ Petitions have been filed by Bank Employees Associations which were not parties to the application for production before the National Tribunal and are intended to support the plea of the appellant in Civil Appeal No. 154 of 1961.
The foregoing narrative would show that the Banking Companies Act, as it stood before the amendment now challenged, had brought the law as to the disclosure of secret reserves and the provision for bad and doubtful debts etc.
Into accord with the usual practice of Bankers, and had protected these items from being compulsorily disclosed to the shareholders of the respective companies and to the general public.
There had been a controversy as to whether the workmen of these establishments were or were not entitled to be placed on a different position from the shareholders because of the bearing of these undisclosed items on the determination of the quantum of their wage etc.
and on their conditions of work having financial implications.
Parliament had, by the impugned legislation, extended the protection from compulsory disclosure to the workmen as well, but with a safeguard in their cue that the Reserve Bank would determine the amount of reserves etc.
which could be taken into account in the course of industrial adjudication.
The question before us is, is this attempt at some approximation of the position of the workmen to that of shareholders etc.
unconstitutional ? 284 Mr. Chari, learned Counsel for the appellant in Civil Appeal No. 154 addressed to us the main arguments in the case and these were supplemented by learned Counsel appearing for the petitioners in the several writ petitions and also by learned Counsel on behalf of the Interveners both in the appeal as well as in the petitions.
Though the arguments before us ranged over a very wide field, the attack on the validity of the legislation was rested on two main grounds : (1) that the impugned legislation contravened the fundamental right guaranteed to "trade unions" by the provi sion contained in sub cl.
(c) of el.
(1) of article 19; and (2) that it violated the freedom of equality guaranteed by article 14 of the Constitution.
We shall consider these two points in that order : First as to the impugned provision being obnoxious to, or in contravention of sub cl.(c) of cl.
(1) 'of article 19 'of the ' Constitution.
This Article runs, to quote only the relevant words "Article 19.
(1) All citizens shall have the right (a). . . . . . . . (b). . . . . . . . (c) to form associations or unions The right is subject to the qualification contained in cl.(4), reading : "(4).
Nothing in sub clause (c) of the said clause shall affect the operation of any existing law insofar as it imposes, or prevent the State from making any law imposing, in the interests of public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub clause.
" It is not the contention of any of the learned Counsel that the right of workmen to form unions or associations which is the right guaranteed by sub cl.
(c) of cl.
(1) of article 19 on its literal reading has 285 been denied by the impugned legislation.
The argument, however, was that it would not be a proper construction of the content of this guaranteed freedom to read the text literally but that the freedom should be so understood as to cover not merely a right to form an union in the sense of getting their union registered so as to function as an union, i.e., of placing no impediments or restrictions on their formation which could not be justified as dictated by public order or morality but that it extended to confer upon unions so formed a right to effectively function as an instrument for agitating and negotiating and by collective bargaining secure, uphold or enforce the demands of workmen in respect of their wages prospects or conditions of work.
It was further submitted that unless the guaranteed right comprehended these, the right to form an Union would be most illusory.
To understand the implications of learned Counsel 's submission in their proper perspective the several steps in the reasoning might be set out as follows : (1)The Constitution guarantees, by sub cl.(c) of cl.
(1) of article 19, to citizens in general and to workers in particular the right to form unions.
In this context it was pointed out that the expression `union ' in addition to the word ,association ' found in the Article refers to associations formed by workmen for "trade union" purposes ; the word "union, being specially chosen to designate labour or Trade unions.
(2)The right to "form an union" in the sense of forming a body carries with it as a concomitant right a guarantee that such unions shall achieve the object for which they were formed.
If this concomitant right were not conceded, the right guaranteed to form an union would be an idle right, an empty shadow lacking all substance.
(3)The object for which labour unions axe brought into being and exist is to ensure collective 286 bargaining by labour with the. employers.
The necessity for this has arisen from an incapacity stemming from the handicap of poverty and consequent lack of bargaining power in workmen as compared with employers which is the reason d 'etre for the existence of labour organizations.
Collective bargaining in order to be effective must be enforceable labour withdrawing its co operation from the employer and there is consequently a fundamental right to strike a right which is thus a natural deduction from the right to form unions guaranteed by sub cl.
(c) of cl.(1) of article 19.
As strikes, however, produce economic dislocation of varying intensity or magnitude, a system has been devised by which compulsory industrial adjudication is substituted for the right to strike.
This is the ratio underlying the provisions of the under which Government is empowered in the event of an industrial dispute which may ultimately lead to a strike or lock out or when such strikes or lock outs occur, to refer the dispute to an impartial Tribunal for adjudication with a provision banning and making illegal strikes or lock outs during the pendency of the adjudication proceedings.
The provision of an alternative to a strike in the shape of industrial adjudication is a restriction on the fundamental right to strike and it would be reasonable and valid only if it were an effective substitute.
(4)For an adjudication to satisfy the tests of reasonableness and effectiveness two conditions are necessary : (a) that the adjudicator should be enabled to have before him all the materials which are necessary for pronouncing upon the matter in controversy before him ; and (b) that the adjudicator by whom the controversy between the parties should be decided should be an impartial person or body who would render the decision or award after fully hearing the parties, and that no matter in controversy should be the subject of ex parte decision by an interested party or without the disputants having an opportunity to know the, 287 materials on which the decision is reached, as also an opportunity to place their case with reference to such material.
(5)In regard to the right of labour unions to function effectively and to achieve the object of their existence as set out earlier, by negotiated settlement or by compulsory adjudication, the only limitations permitted to be imposed by law are those set out in cl.(4) of article 19 and unless, therefore, either the objects of the association or the marmer of achieving them are contrary to, or transgress public order or morality, for which reason alone reasonable restrictions might be imposed upon the guaranteed right, the.
freedom guaranteed is absolute.
(6)The legislation now impugned withdraws as it were a vital issue in dispute between the parties before the adjudicator, viz:, the capacity of the industry to pay, from his cognisance and vests the power of deciding that issue in the Reserve Bank which is a biased and interested party, the decision itself being rendered ex parte, the trade unions being deprived even of the knowledge of facts which lead to the decision.
It was on this line of reasoning that learned Counsel submitted that the impugned enactment violated the freedom guaranteed by sub cl.
(c) of el.
(1) of article 19.
We shall now proceed to consider the soundness and tenability of the steps in the reasoning.
It is not necessary to discuss in any detail the first step as sub cl.
(c) of el.
(1) of article 19 does guarantee to all citizens the right ',to from associations".
It matters little whether or not learned Counsel is right in his submission that the expression "union ' in the clause has reference particularly to Trade Unions or whether the term is used in a generic sense to designate any association formed for any legitimate purpose and merely as a variant of the expression "Association" for comprehending every body of persons so formed.
It is not controverted 288 that workmen have a right to form "associations or unions" and that any legal impediment in the way of the formation of such unions imposed directly or indirectly which does not satisfy the tests laid down in cl.
(4) would be unconstitutional as contravening a right guaranteed by of the Constitution It is the second step in the argument of the learned Counsel, viz., that the right guaranteed to form "an union" carries with it a concomitant right that the achievement of the object for which the union is formed shall not be restricted by legislation unless such restriction were imposed in the interest of public order or morality, that calls for critical examination.
We shall be referring a little later to the authorities on which learned Counsel rested his arguments under this head, but before doing so we consider it would be proper to discuss the matter on principle and on the construction of the constitutional provision and then examine how far the authorities support or contradict the conclusion reached.
The point for discussion could be formulated thus : When sub cl.
(c) of cl.
(1) of article 19 guarantees the right to form associations, is a guarantee also implied that the fulfilment of every object of an association so formed is also a protected right, with the result that there is a constitutional guarantee that every association shall effectively achieve the purpose for which it was formed without interference by law except on grounds relevant to the preservation of public order or morality set out in cl.
(4) of article 19? Putting aside for the moment the case of Labour Unions to which we shall refer later, if an association were formed, let us say.
for carrying on a lawful business such as a joint stock company or a partnership, does the guarantee by sub cl.(c) of the freedom.
to form the association, carry with it a further guaranteed right to the company or the partnership to pursue its trade and achieve its profit making object and that the only limitations 289 which the law could impose on the activity of the association or in the way of regulating its business activity would be those based on public order and morality under cl.
(4) of article 19? We are clearly of the opinion that this has to be answered in the negative An affirmative answer would be contradictory of the scheme underlying the text and the frame of the several fundamental rights which are guaranteed by Part III and particularly by the scheme of the seven freedoms or groups of freedoms guaranteed by sub cls.
( 'a) to (g) of el.
(1) of article 19.
The acceptance of any such argument would mean that while in the case of an individual citizen to whom a right to carry on a trade or business or pursue an occupation is guaranteed by sub cl.
(g) of cl.
(1) of article 19, the validity of a law which imposes any restriction on this guaranteed right would have to be tested by the, criteria laid down by cl.
(6) of article 19.
if however he associated with another and carried on the same activity say as a partnership, or as a company etc.
, he obtains larger rights of a different content and with different characteristics which include the right to have the validity of legislation restricting his activities tested by different standards, viz., those laid down in el.
(4) of article 19.
This would itself be sufficient to demonstrate that the construction which the learned Counsel for the appellant contends is incorrect, but this position is rendered clearer by the fact that article 19 as contrasted with certain other Articles like articles 26, 29 and 30 grants rights to the citizen as such, and associations can lay claim to the fundamental rights guaranteed by that Article solely on the basis of their being an aggregation of citizens, i.e., in right of the citizens composing the body.
As the stream can rise no higher than the source, associations of citizens cannot lay claim to rights not open to citizens, or claim freedom from restrictions to which the citizens: composing it are subject.
The resulting position way, be illustrated thus If an association were formed ' for ' the purpose of 290 arrying on business, the right to form it would be Guaranteed by sub cl.
(c) of cl.
(1) of article 19 subject to any law restricting that right conforming to cl.
(4) of article 19.
As regards its business activities, however, and the achievement of the objects for which it was brought into existence, its rights would be those guaranteed by sub cl.
(g) of cl.
(1) of article 19 subject to any relevant law on the matter conforming to el.
(6) of article 19 ; while the property which the association acquires or possesses would be protected by sub el.
(f) of cl.
(1) of article 19 subject to legislation within the limits laid down by cl.
(5) of article 19.
We consider it unnecessary to multiply examples to further illustrate the point.
Applying what we have stated earlier to the case of a labour union the position would be this : while the right to form an union is guaranteed by sub el.
(c), the right of the members of the association to meet would be guaranteed by sub el.
(b), their right to move from place to place within India by sub cl.(d), their right to discuss their problems and to propagate their views by sub cl.
(a), their right to hold property would be that guaranteed by sub cl.
(f) and so oneach of these freedoms being subject to such restrictions as might properly be imposed by cls.
(2) to (6) of article 19 as might be appropriate in the context.
It is one thing to interpret each of the freedoms guaranteed by the several Articles in Part III a fair and liberal sense, it is quite another to read which guaranteed right as involving or including 'Concomitant rights necessary to achieve the object which might be supposed to under lie the grant of each of those rights, for that construction would, by a series of ever expanding concentric circles in the shape of rights.
concomitant to concomitant rights and so on, lead to an almost grotesque result.
There is no doubt that in the context of the principles underlying the Constitution and the manner in which its Part III has been framed the 291 guarantees embodied in it are to be interpreted in a liberal way so as to subserve the purpose for which the constitution makers intended them and not in any pedantic or narrow sense, but this however does not imply that the Court is at liberty to give an unnatural and artificial meaning to the expressions used based on ideological considerations.
Besides it may be pointed out that both under the Trade Unions act as well as under the the expressions `union signifies not merely a union of workers but includes also unions of employers.
If the fulfilment of every object for which an union of workmen was formed were held to be a guaranteed right, it would logically follow that a similar content ought to be given to the same freedom when applied to an union of employers which would result in an absurdity.
We are pointing this out not as any conclusive answer, but to indicate that the theory of learned Counsel that a right to, form unions guaranteed by sub cl.
(c) of ol.(1) of article 19 carries with it a fundamental right in the union so formed to achieve every object for which it was formed with the legal consequence that any legislation not falling within el.
(4) of article 19 which might in any way hamper the fulfilment of those objects, should be declared unconstitutional and void under Art, 13 of the Constitution, is not a proposition which could be accepted as correct.
Besides the qualification subject to which the right under sub cl.
(c) is guaranteed, viz., the contents of el.
(4) of article 19 throw considerable light upon the scope of the freedom, for the significance and contents of the grants of the Constitution are beat understood and read in the light of the restrictions imposed.
If the right guaranteed included not merely that which.
would flow on a literal reading of the Article, but every right which is necessary in order that the association brought into existence fulfils every object for which it is formed, the qualifications therefor, would be not merely those in cl.(4) of Art, 19, but would be.
more numerous and 292 very different, restrictions which bore upon and took into account the several fields in which associations or unions of citizens, might legitimately engage themselves.
Merely by way of illustration we might point out that learned Counsel admitted that though the freedom guaranteed to workmen to form labour unions carried with it the concomitant right to collective bargaining together with the right to strike, still the provision in the forbidding strikes in the protected industries as well as in the event of a reference of the dispute to adjudication under section 10 of the was conceded to be a reasonable restriction on the right guaranteed by sub cl.(c) of cl.(1) of article 19.
It would be seen that if the right to strike were by implication a right guaranteed by sub cl.
(c) of cl.
(1) of article 19 then the restriction on that right in the interests of the general public, viz., of national economy while perfectly legitimate if tested by the criteria in el.
(6) of article 19, might not be capable of being sustained as a reasonable restriction imposed for reasons of morality or public order.
On the construction of the Article, therefore, apart from the authorities to which we shall refer presently, we have reached the conclusion that even a very liberal interpretation of sub cl.
(c) of cl.
(1) of article 19 cannot lead to the conclusion that the trade unions have a guaranteed right to an effective collective bargaining or to strike, either as part of collective bargaining or otherwise.
The right to strike or the right to declare a look out may be controlled or restricted by appropriate industrial legislation, And the validity of such legislation would have to be tested not with reference to the criteria laid down in cl.(4) of article 19 but by totally different considerations.
We shall now proceed to consider the authorities, relied ion by the learned Counsel in support of this theory of "Concomitant right" to collective bargaining guaranteed to labour unions.
first as regards the decisions of this Court on which learned 293 Counsel relied Romesh Thappar vs The State of Madras(1)Was the earliest case referred to; and learned counsel placed reliance in particular on the following passage in the judgment of the learned Chief Justice : "Turning now to the ' merits, there can be no doubt that freedom of speech and expression includes freedom of propagation of ideas, and that freedom is ensured by the freedom of circulation. 'Liberty of circulation is as essential to that freedom as the liberty of publication.
Indeed, without circulation the publication would be of little value : Ex parte Jackson, ; Based on this, learned Counsel submitted that if the phrase "freedom of speech and expression ' in sub cl.
(a) of el.
(1) of article 19 were given this liberal construction so as to effectuate the object for which the freedom was conferred, a similar construction ought to be adopted of the content of the freedom guaranteed by sub cl.
(c) of el.
(1) of article 19.
We are, however, unable to discern any analogy between the two cases.
It is obvious that "freedom of speech" means freedom to speak so as to be heard by others, and therefore to convey one 's ideas to others.
Similarly the very idea of freedom of expression necessarily connotes that what one has a right to express may be communicated to others.
Unless therefore the freedom guaranteed by sub cl.(a) of el.
(1) of article 19 were read as confined to the right to speak to oneself or to express his ideas to himself, which obviously they could not mean, the guaranteed freedom would mean freedom to address others, and of conveying to others one 's ideas by printed word, viz., freedom of circulation.
We do not see, therefore, any analogy between the case which was considered by this Court in Romesh Thappar 's (1) case and the one before us.
(1) ; In A. 294 The observations in the judgment of Bhagwati, J. in Express New,,?,papers (Private) Ltd. vs Union of India(1) on which Counsel relied, in regard to the content of the 'freedom of speech and expression that they "include within its scope the freedom of the press", for the press with the printed word is merely the mechanism by which the freedom is exercised do Dot really carry the matter any ` further.
We were next referred to the observations of Das C. J. in the advisory opinion Re the Kerala Education The question, which was being considered in the passage,relied on, related to the scope and content of cl.
(1) of article 30 which guaran tees to all minorities a right to establish and administer educational institutions of their choice.
The question debated before this Court was, whether the provision in the Kerala Education Bill which denied recognition by Government to educational institutions run by minorities contravened this freedom guaranteed to them ? Dealing with this Das C. J. said : "Without recognition, therefore, the edu cational institutions established or to be established by the minority communities cannot fulfil the real objects of their choice and the rights under article 30(1) cannot be effectively exercised.
The right to establish educational institutions of their choice must, therefore, mean the right to establish real institutions which would effectively serve the needs of their community and the scholars who resort to their educational institutions.
There is, no doubt, no such thing as fundamental right to recognition by the State but to deny recognition to ' the educational institutions except upon terms tantamount to the surrender of their constitutional right of administration of the educational institutions of their choice is (1) (2) 1959 S.C.R. 995. 295 in truth and in effect to deprive them of their rights under article 30 (1).19 We do not consider that these observations and this construction of el.
(1) of article 30 assist learned Counsel in his submission as regards the theory of concomitant rights flowing from the freedom guaranteed by sub cl.
(c) of cl.
(1) of article 19.
The observations of the learned Chief Justice and the conclusions drawn are in relation to the construction of article 30 and cannot be divorced from ' the context.
They do not purport to lay down any general rule of construction for the freedoms guaranteed under the several sub heads of cl.
(1) of article 19, and, indeed, what we have pointed out earlier should suffice to indicate the impossibility of upholding any such construction of the freedoms guaranteed by the latter Article.
Learned Counsel also referred us to certain passages in two judgments of the Supreme Court of the United States : National Association for the advancement of colored people vs Alabama,(1)and Bates vs Little Rock(2)in which the Court held that, freedom of speech and assembly which were fundamental rights guaranteed by the Constitution would be abrogated or improperly encroached upon by legislation 'which compelled the disclosure to public authorities of the membership rolls.
In the two decisions the facts were that the associations in question were for the protection of coloured persons and the requirement of disclosure of the names of members was inserted in the law for the purpose of putting a pressure upon these associations so as to dissuade people from joining them.
The argument of learned Counsel before us was based on the dicta in these two decisions that the I right to form an association which followed by reason of the due process ' clause in the 14th amendment carried with it the right to ensure that the associations were able to maintain themselves as associations.
In the two (1) 2 Law.
Second 1488.
(2) 4 Law.
Second 480.
296 decisions referred to, the learned Judges of the Supreme Court of the United States were not construing the content of a provision on the lines of article 19(1)(c), for in America, the right of association is not any specifically guaranteed right, but has been derived by judicial interpretation of the due process clause of the 14th Amendment.
But apart from this the legislation there impugned was one which directly affected the formation of the association and in that sense may be hit by the terms of sub cl.(c) of cl.(1) of article 19 if statutes with similar purpose were enacted in India.
The decisions cited are no authority for the second step in the argument for which they were cited.
Learned Counsel also referred us to two other decisions of the Supreme Court of the United States in which the right of employees to self organization, to form, join and assist labour organisations and to bargain collectively through representatives of their own choice and to engage in concerted Activities for the purpose of collective bargaining or other mutual aid has been referred to as "a fundamental right" (vide National Labor Relations Board vs Jones and Laughlin Steel Corporation and ors.
, (1) and Amalgamated Utility Workers vs Consolidated Edison Company of New York) (2).
We do not consider the inference sought to be drawn well founded.
What the learned Judges of the Supreme Court were referring to as a fundamental right was not with reference to a fundamental right as recognized or guaranteed by the Constitution, but in the sense of a right of the unions which enacted law.
recognized or respected, and as other decisions of the United states ' Supreme Court show, was subject to regulation by the legislature(3).
We have, therefore, reached the conclusion that the right guaranteed.
by sub cl.(c) of cl.(1) of article 19 does not carry with it a concomitant right (1) ; ,909.
(2) ; , 741.
Vide Weaver Constitutional Law and its Administration (1 946) p. 505, referring to Dorchy vs, Kansas ; : "Neither he common law nor the 14th Amendment confers the absolute right to strike.
" 297 that the unions formed for protecting the interests of labour shall achieve the purpose for which they were brought into existence, such that any interference, to such achievement by the law of the land would be unconstitutional unless the same could be justified as in the interests of public order or morality.
In our opinion, the right guaranteed under sub cl.
(c) of el.
(1.) of article 19 extends to the formation of an association and insofar as the activities of the association are concerned or as regards the steps which the union might take to achieve the purpose of its creation, they are subject to such laws as might be framed and that the validity of such laws is not to be tested by reference to the criteria to be found in cl.
(4) of article 19 of the Constitution.
In this view it is not necessary to consider the other steps in.
the argument of learned Counsel all of which proceed upon the correctness of the step which we have just now disposed of.
Nevertheless we consider it proper to deal with the submission that the impugned legislation (a) withdraws an essential part of the dispute between the parties from the jurisdiction of an impartial adjudicator and vests the same in the Reserve Bank of India which is a biased body ; and (b) that the adjudicator is left without proper materials to discharge his duties by withdrawing the, proper materials from his cognizance.
A complaint that the impugned provision withdraws the dispute from the adjudication of an impartial arbitrator and leaves it to the decision of another body is an obvious overstatement of the position.
The dispute between the parties in relation either to wages, bonus or other amenities or perquisites which involve financial obligations on the part of the employer remain even after the impugned provision was enacted, with the adjudicator and he alone determines the rights of the parties subject to the provisions of the Industrial law or other relevant legislation, and the relief which he could award to the employees remains 298 the same.
The adjudicator alone determines ' the capacity of the industry to pay or to bear the enhanced cost.
The only result of section 34 A is that in regard to two itmes, viz., secret reserves and the provision made by banks "for bad and doubtful debts and other necessary provisions", the reasonable quantum which would be available for being taken into account by the adjudicator would be estimated and determined by an expert body which is a governmental authority or practically a department of Government, viz., the Reserve Bank of India which is entrusted by law with duty of maintaining the credit structure of the country.
From what we have 'stated earlier as the genesis of the legislation now impugned, it would be apparent that Government had to effect a reconciliation between two conflicting interests : one was the need to preserve and maintain the delicate fabric of the credit structure of the country by strengthening the real as well as the apparent credit worthiness of banks operating in the country.
It was really this principle which is vital to the economic life of the community that has been responsible for the changes that have been made from 1927 onwards as regards the form of balancesheet and of the Profit & Loss accounts of banking companies as distinguished from other trading and industrial organizations.
There was urgent need to protect from disclosure certain of the items of appropriation by banks in order to preserve them as credit institutions.
On the other hand, there was the need an equally urgent need for enabling the workers in these institutions not to be denied a proper wage and other emoluments and proper conditions of service.
the question was how far information which in the interests of national economy the banks were entitled to withhold from their shareholders and the general public, was to be made available for determining the capacity of the banks to pay their employees.
It was in these Circumstances that the impugned legislation was 299 enacted which while preserving industrial adjudication in respect of disputes between the banks and their employees, entrusted the duty of determining the surplus reserve which could be taken into account as part of the assets for determining capacity to pay, to the Reserve Bank.
Thus understood there does not appear to be anything unreasonable in the solution which the I impugned legislation has effected.
We do not also consider that there is any substance in the complaint that the Reserve Bank of India is a biased body.
If it was not the Reserve Bank of India, the only other authority that could be entrusted with the function would be the Finance Ministry of the Government of India and that department would necessarily be guided by the Reserve Bank having regard to the intimate knowledge which the Reserve Bank has of the banking structure of the country as a whole and of the affairs of each bank in particular.
In the circumstance therefore it matters little from the point of view of the.
present argument whether it is the Finance Ministry that was vested with the power to determine the matters set up in section 34 A or whether it is the Reserve Bank that does so, as under the impugned enactment.
Learned Counsel made a further submission that the impugned enactment was a piece of colourable legislation and that the purported objective of securing secrecy from disclosure was really a device adopted for depressing wages and for denying to workmen employed in banks their legitimate rights.
It was urged that the preamble to the amending Act sought to make out that the real purpose behind the legislation was the ensuring of secrecy from disclosure of the reserves held by the banks and of the bad and doubtful debts which arose in the course of business and the provision made for these losses and proceeded on the ratio that such disclosure would hurt the credit of the 300 banks which would have repercussions not merely on the individual bank but also on the banking structure of the country as a whole.
This, it was submitted, was not the real but only the colourable object and purpose underlying the legislation.
In this connection it was stressed that section 21 of the and r. 30 of the Industrial Disputes Rules had made ample provision for securing secrecy to the affairs of every concern in regard to which disclosure would not be in public interest.
We are satisfied that this submission has no basis in fact and besides even if made out does not affect the validity of the legislation.
As we have pointed out already, the impugned legislation merely carries out to its logical conclusion the effect of the changes in the form of the balance sheet and Profit and Loss accounts of Banks which starting in 1927 culminated in the notification dated December 22, 1951 under section 29 (4) of the Banking Companies Act amending the Forms appended to that Act.
If the construction of the "right to form unions" under sub cl.
(c) of cl.(1) of article 19 put forward by learned Counsel for impugning the validity of the enactment is negatived, then subject to the point about article 14 which we shall examine presently, legislative competence being conceded there could be no legal objection to its validity.
Objections based on colourable legislation have relevance only in situations when the power of the legislature is restricted to particular topics, and an attempt is made to escape legal fetters imposed on its powers by resorting to forms of legislation calculated to mask the real subject matter.
No such problem exists in the present case and it is common ground that once the legislation passes the test of the fundamental rights,guaranteed by Part III, legislative competence not being in dispute, its.
validity is beyond cavil.
The question whether the secrecy assured by section 21 of is or is not sufficient to protect the interests of I the Banks, is a matter of legislative policy and is for Parliament 301 alone and even the fact that the Court could be persuaded that the existing law is sufficient would be no ground for invalidating the 'impugned legislation.
When the end which the legislature reeks to achieve, viz ., secrecy is competent, the enquiry as to ultra vires stops.
Whether less than what was done might have been enough, whether more drastic provision was made than occasion demanded, whether the same purposes could have been achieved by provisions differently framed or by other means, these are wholly irrelevant considerations for testing the validity of the law.
They do not touch or concern the ambit of the power but only the manner of its exercise, and once the provisions of of the Constitution are out of the way, the validity of the legislation is not open to challenge.
The next point urged was that the impugned provision was in violation of article 14; though the several learned Counsel who. appeared in support of the case of the workers were not all agreed as to the precise grounds upon which it could be ' held that the impugned provision violated article 14.
It was first submitted that the provision was rendered invalid because it vested an arbitrary power in.
banks which were parties to a dispute under the , to claim or not to claim the privilege of not producing the documents and that no criterion had been indicated as to the Circumstances in which Banks could decide to make the claim.
But this, however, is answered by the provision itself which runs "When the banking company, claims that such document, statement of information is of a confidential nature and: that the production or inspection of such document. would involve disclosure of '.
information relating to the matters set not the.
matters set out in sub clauses (a) and (b)" 302 It was also submitted that sub cl.
(b) of sub section
(1) was vague, in that a reference was made to "provision made for bad and doubtful debts and other usual or necessary provisions".
We do not see any substance in this point either, because these words are taken from the form under the Banking Companies Act and their meaning is clear in banking circles.
In fact, in the application which the employee associations made before the adjudicator to direct the production of information and documents from the banks this phrase was used and it is apparent that even the Bank Employees ' Associations understood it as having a definite connotation.
It was next submitted on behalf of some of the interveners that section 34A(1) and (2) violated article 14 in that the classification contained in it was impermissible as not being based on rational grounds.
It was said (1) that the protection against a disclosure applied only to adjudications under the industrial Disputes Act and not to other adjudications ; (2) that it applied only to certain banking companies and not to all banking companies; and (3) that by reason of section 34A (2) the provisions of the impugned enactment were applied in a discriminatory manner to all banks other than the Reserve Bank.
The first two points cover the same ground and arise out of the fact that the.
impugned provision by its 3rd sub section defines a "banking company" referred to in it and to which its provisions apply, as meaning a ""Banking Company" under the .
The defines a "Banking Company" in section 2(b) as follows: "Banking Company means a banking company as defined in section 5 of the Banking Companies Act, 1949, having branches or other establishments in more than one State and includes the State Bank of India and the Reserve Bank of India.
" 303 It would thus be seen that though the Banking Companies Act applied to every banking company it is only those banks whose operations extended beyond one State were brought within the scope, of the definitions of a "banking company" under the .
The result of that was that Banking Companies not having branches in more than one State would be an industry so as to be within the but not , 'a banking company" within its definition.
In the circumstances learned Counsel is right in his submission that such banking companies as are not within the definition of "a banking company" under the would not be entitled to claim the protection from disclosure conferred on "banking companies" by the impugned provision.
This, however, is no ground for holding the legislation invalid.
In the first place, the complaint of discrimination is not by the banks who are not on the terms of section 34A entitled to the protection from disclosure of their reserves etc.
Secondly it is common ground that 95 % of the banking business in this country is in the hands of Banks which are, within the definition of "banking companies" under section 2(b) (b) of the .
Besides, these banks, employ over 80,O0O out of the 90,000 bank employees.
In the circumstances and seeing that the injury to the credit structure will only be by the disclosure of the reserves etc., of the banks of this class, there is sufficient rational connection and basis for classification to justify the differentiation.
The fact that the legislation does not cover every banking company is therefore no ground for holding the provision to be discriminatory within article 14.
The last point about the exclusion, of the Reserve Bank of India from the operation of section 34A (2) has also no substance.
in the very nature of things and on the scheme of the provision the Reserve Bank could not but be excluded from sub section
(3) of the impugned provision.
In determining 304 what reserves could properly be taken into account, the Reserve Bank would be discharging not any quasi judicial but only an administrative function, determining this matter with reference to uniform business principles and it therefore appears to us that.
there is no impropriety in its findings being final even in regard to itself.
A submission on similar lines about bias was also made in relation to the impact of the impugned provision insofar as it related to the industrial dispute between the State Bank of India and its employees.
It was pointed out to us that the Reserve Bank of India owned practically the entirety of the sharecapital of the State Bank of India, with the result that the Reserve Bank was pecuniarily and vitally interested in supporting the State Bank as against the latter 's employees in any industrial dispute and that the element of bias which the situation involved would invalidate the impugned provision.
We consider this argument without force.
If, as we have held, the impugned provision is valid and does not violate any of the freedoms guaranteed by of the Constitution in regard to the employees of the Reserve Bank, the challenge to the impugned provision cannot obviously be successful in the case of the employees of the State Bank.
As we have stated earlier, though the arguments before us ranged on a very wide ground, we have not thought it necessary to deal with all of them because in view of our conclusions on the crucial points in the case the others which were subject of debate before us did not arise for consideration.
The appeal fails and is dismissed with costs.
The petitions also fail and are dismissed with costs.
(one hearing fee) Appeal and Petitions dismissed.

summary/full:
Section 34 A of the Banking Companies Act, 1949, introduced in 1960, provides that no banking company shall be compelled to produce or give inspection of its books of account or other document or furnish or disclose any statement or in formation which the company claims to be of a confidential nature and the production etc., of which would involve dis closure of information relating to any reserves not shown as such in its published balance sheet or any 'particulars not shown therein in respect of provisions made for bad and doubtful debts and other usual or necessary provisions.
Sub section (2) of section 34 A provides that any authority, before whom the question as to whether any amount out of such reserves or provisions should be taken into account, may refer the question to the Reserve Bank and the Reserve Bank shall furnish to the authority a certificate stating that the authority shall or shall not take into account the amount specified therein.
Sub section (3) makes section 34 A applicable to only such banking companies whose operations extend beyond one State.
The Appellant contended 270 that section 34 A contravened the fundamental right guaranteed to trade unions by Art 19(1)(c) of the Constitution as it prevented them from effectively exercising the concomitant right of collective bargaining in respect of wages, bonus etc.
before industrial Tribunals by shutting out important and relevant evidence and that the section violated article 14 of the Constitution as it was not made applicable to all the banking companies.
Held, that section 34 A of the.
Banking Companies Act, 1949, was constitutionally valid and did not and either article 19(1)(c) or article 14 of the Constitution.
The right guaranteed by article 19(1)(c) of the Constitution does not carry with it a concomitant right that unions formed for protecting the interests of labour shall achieve their object such that any interference to such achievement by any law would be unconstitutional unless it could be justified,under article 19(4) as being in the ' interests of Public order or morality.
The right under article 19(1)(c) extends only to the formation of an association or union and insofar as the activities of the association or union are concerned or as regards the steps which the union might take to achieve, its object, they are subject to such laws as, may be framed and such laws cannot be, tested under article 19(4).
Section 34 A was, enacted to effect a i.e conciliation between the conflicting interest of labour to obtain proper relief in industrial arbitration and tire need to preserved and maintain the delicate fabric of the credit structure of the country by strengthening the as well as the apparent credit worthiness of banks operating in the country.
It preserved industrial adjudication in respect of disputes between the banks and their employees by entrusting the duty of determining the surplus reserve which could be taken into account as a part of the assets for determining their capacity to pay to the Reserve Bank.
Ramesh Thappar vs State of Madras ; Express Newspapers (P) Ltd. vs Union of India, , Be.
The Kerala Education Bill, (1959) S.C.R. 995, National Association for the advancement of coloured people vs Alabama, 2 Law.
Second 1488, Bates vs Little Rock, 4 Law Ed.
Second 480,.
National Labour Relations Board vs Jones & Lauqhlin Steel Corporation, ; and Amalgamated Utility Workers vs Consolidated Edison Company of New York, ; , referred to.
Though there were certain banks which were not entitled to the protection of section 34 A that was no ground for holding that the section offended article 14.
The complaint was not made by the banks who were not given the protection.
Admittedly, 95% of the banking business in the country was in the hands of 271 banks to whom section 34 A applied and.
they employed 80,000 out of the 90,000 bank employees.
The injury to the credit, structure will only be by the disclosure of the reserve etc. ' of the banks of this class and there is sufficient rational connection and basis for the classification to justify the differentiation.
The exclusion of the Reserve Bank from the operation of section 34 A (2) also does not amount to discrimination; in the very nature of things and on the scheme of the provision the reserve Bank could not but be excluded.


judgement:
Appeal No. 143 of 1956.
Appeal by special leave from the judgment and decree dated September 23, 1952, of the Bombay High Court in First Appeal No. 57 of 1949.
section P. Desai and I. N. Shroff for the appellant.
A. V. Viswanatha Sastri, J. B. Dadachanji, S.N. Andley, Rameshwar Nath and P.L. Vohra, for the respondents.
642 1961.
September 13.
The Judgment of the Court was delivered by DAS GUPTA, J.
The appellant and the Second respondent are both descendants of Vallabhacharyaji, a great Vaishnava teacher who flourished more than 400 years ago.
Vallabhacharyaji left his native place near Champaranya in South India, and coming to Gujarat and other parts of India established shrines for the worship of Vishnu at several places.
His descendants became the priests and Shebaits of such shrines and also of other shrines established thereafter.
These came to be known as Gadis.
While each of these Gadis had a temple for the worship of Vishnu, considerable properties, movable and immovable were acquired for them from time to time by gift or otherwise.
One such shrine was established more than 100 years ago at Nadiad and about the year 1899 A. D. a descendant of Vallabhacharyaji who on adoption took the name of Anniruddhalalji Murlidharji became the head of the Nadiad shrine and was thus possessed of the movable and immovable properties appertaining to the Gadi.
This gentleman also became by, adoption head of another shrine known as the Moti Haveli at Jamnagar in the year 1913 and then took a slightly different name Annirudhalalj 'i Brijeshji.
Both these adoptions were in accordance with the Goda Dattak custom of adoption which prevailed among the members of the Vallabhacharya community.
Aniruddhalalji Murlidharji (alias Aniruddhalalji Brijeshji) died on December 17, 1935 leaving a widow Mahalaksbmi Bahuji Maharaj, who is the first respondent before Us.
The question of adopting an heir to him assumed importance immediately on his death and it appears there was some talk.
of adopting by the Goda Dattak custom one of the sons of the present appellant, who it is necessary to mention.
was the natural brother of Aniruddhalalji.
The talks however proved fruitless and ultimately on June 1, 1946, 643 the second respondent who as already stated was also a descendant of Vallabhacharya was adopted.
The present suit was brought by the appellant in respect of the Haveli and other properties left by Anniruddhalalji at Nadiad.
In this he, challenges the validity of the adoption of the second respondent by the first respondent, Mahalakshmi Bahuji Maharaj.
The main prayer in the suit is for a declaration that respondent No. 2 was not the legally adopted son of Aniruddhalalji and did not acquire any right or shares in his property by the alleged adoption.
The other prayers included one for a declaration that he the appellant was the nearest heir of the deceased, that the first respondent had no other right in the property except as a Hindu widow, for an injunction restraining her from frittering away the property or any part thereof, for an order on her to produce the balance of the sale proceeds of Maharaja 's Bag which she had sold off and for an order on both these respondents , to render accounts of the properties of Goswami Anniruddhalalji which might have come into their hands.
It is no longer in dispute that the plaintiff would be the nearest heir on the death of the widow if there has been no valid adoption of the second respondent to Aniruddhalalji.
The appellant challenged the validity of the adoption on three main grounds.
The first was that under the custom ' of the Vallabharcharya community under which Goda Dattak adoption is made, the adoptee (using that word to denote the boy taken in adoption) must be only from the family of the adoptive father if this be possible and in the present case even though the plaintiff himself as well as his two sons were available for adoption the second respondent was adopted in preference to them.
The second ground was that under the Goda Dattak custom the wife 's sister 's husband cannot be validly adopted.
The third around was that Aniruddhalalji 644 had expressed his desire in this matter of adoption in such a manner that there was an implied prohibition by him from taking in adoption anybody except the present appellant or one of his sons.
The first two grounds were raised in Issue No. 8 of the 19 Issues that were framed by the Trial Court while the third ground was raised in Issue No. 12.
These Issues are in the following words : Issue No 8 Does the.
plaintiff prove the custom that in Goda adoption: (i) a widow cannot adopt her sister 's husband as a son to her husband ? (ii) the adoptee should belong to the family of the adopter ? Issue No. 12: Does the plaintiff prove that the Defendant No. 1 was prohibited by Anniruddhalalji from adopting in the Goda form any one except the plaintiff or one of his sons ? It may be mentioned that an Issue was framed as, regards the factum of adoption in Issue, No. 6, viz., whether Defendant No. 2 's adoption is proved, in view of what was said in paragraph 14 of the plaint that he was not aware whether Defendant No. 1 and Defendant No. 2 had performed any ceremonies or rites according to the Goda Dattak form of adoption or as required by Hindu Law.
This issue was answered in the affirmative and the correctness of that answer has not been challenged before us.
The Trial Court held that the plaintiff had riot been able to establish the alleged custom for Goda Dattak that a widow could not adopt her sister 's husband as a son to her husband nor that the adoptee should belong to the family of the adopter and accordingly answered Issue No. 8 in the negative.
As regards Issue No. 12 the plaintiff relied on a letter which was marked exhibit 115, apart from his own evidence and evidence of some of his witnesses.
The Trial Court accepted Defendant No. 1 's contention that this letter had 645 been inspired by the plaintiff himself and so No. reliance could be placed on ' it.
The oral testimony given by the plaintiff and other witnesses in support of the story that Aniruddhalalji had in his life time given certain directions in the matter of adoption of a son to him was also found not reliable.
Accordingly, Issue ,No. 12 was also answered in the negative.
One other argument addressed to the Trial Court was that Defendant No. 1 had not obtained the consent of her husband 's sapindas for this adoption and so under the Madras School of Mitakshara Law, which it is said governed the parties, the adoption was invalid.
The Trial Court considered this argument even though the, question whether the Madras School of Mitakshara governed the parties and so the adoption was invalid without the consent of the husband 's, sapindas had not been specifically raised in the pleadings nor had any issue been framed on , ,his.
The learned Judge however rejected the argument, being of opinion that "the ordinary law of adoption which puts restrictions on the widow 's right to adopt in Madras cannot be taken to be prevailing in the case of customary adoption in the Goda form by widow in the Goswami families.
" Holding that the Defendant No.2 's adoption could not be held to be invalid the Trial Court dismissed the suit with costs.
The plaintiff 's appeal to the High Court of Bombay met a similar fate.
The learned Judges of High Court agreed with the Trial Court that the plaintiff had not been able to prove either that the wife 's sister 's husband was not eligible for adoption under the Goda Custom or that the son to be adopted must if possible come from the family of their adoptive father.
On the question whether there was an implied prohibition to adopt anybody other than the plaintiff or his sons, .also, they agreed with, the Trial Court even though they were not prepared to 646 say that the letter (exhibit 115) was written by the Defendant No., 1 under undue influence of the plaintiff., The learned Judges of the High Court refused to consider the further question raised on behalf of the appellant that the adoption was invalid in the absence of consent of the Sapindas as the proper.
pleading on which, such a question could have been raised had not been made in the plaint and no issue had been framed.
The High Court refused to frame an issue then, but Rave time to the plaintiff to make an application for amendment of the plaint.
An application for amendment was duly made but was rejected by the learned judges who were of opinion that the application had not been made in good faith.
The appeal was dismissed with costs.
The plaintiff has filed the present appeal against the decision of the High Court after obtaining special leave from this Court.
The appellant contends that the Courts below were wrong in holding, firstly.
that a custom which barred the adopted of the wife 's sister 's husband in the Goda form of adoption had not been proved.
secondly that a custom that if possible the adoptee must be from the family of the adoptive father had not been proved; and lastly that the alleged implied prohibition against adopting anybody excepting the plaintiff and one of his sons had not been established.
It was also urged that the High Court was wrong in refusing to entertain the plea that the adoption was invalid in the absence of the consent of the husband 's sapindas and in any case totally wrong in allowing the application for amendment of the plaint seeking to raise such a plea.
Before coming to the several grounds urged on behalf of the appellant we have to consider a preliminary objection raised on behalf of the respondent.
It is urged that this appeal has become infructuous by reason of, the operation of section 14 of the Hindu Succession Act, It is said that, as 647 admittedly respondent No. 1, Mahalakshmi Bahuji Maharaj, was in possession of the properties in suit at the date of the commencement of the Hindu Succession Act, she became the full owner of the properties in question in case the adoption by her of respondent No. 2 is invalid.
There maybe some force in this argument if the properties in question are the private secular properties of Anniruddhalalji.
The position may well however be different if these properties were the Devattar properties belonging to the Thakur of which Anniruadhalalji was a Shabeit.
It appears that a suit has actually been brought by certain Vaisnavas seeking a declaration that these properties are all Devattar properties of the Thakur.
In view of this position we are of opinion that it would not proper for us to decide in the present case whether under section 14 of the Hindu Succession Act Defendant No. 1 had become the full owner of the properties in suit if the adoption by her was invalid.
We shall therefore decide this appeal on merits leaving it open to the 1st respondent to pursue her claim under section 14 of the Hindu Succession Act if that becomes necessary.
Coming now to the merits of the appeal it is necessary to consider first the question of the alleged limitation on the power to adopt by Goda practice as regards the wife 's sister 's husband or a member from another Vallabhacharya family even though members of the adoptive father 's family be available.
It will be helpful to consider in this con nection first the objects of Goda adoption.
These objects have been mentioned by plaintiff 's own witness Chandras Shankar Laxmishakar Upadhyaya who appears to have a fair amount of knowledge of Goda Dattaka adoptions, to be three fold.
The primary object was mentioned by him to be that 1 & "person going in "Goda" adoption can perform "several (worship) etc., of the Thakorji (idol) and that tradition of "sewa" (worship etc.,) can be ' continued".
The second object mentioned by him is "that, after.
the death of the 648 person taking in adoption, the person going in adoption can perform his "shraddha" ceremonies etc " ' The third object according to him is "to continue the line of the person taking in adoption.
" Other witnesses who have given evidence on this point have said more or less the same thing.
It is obvious that if the above be the objects of Goda adoption it must be implicit In the nature of Goda adoption that anybody who would be incapable of accomplishing any of these objects would be ineligible for adoption.
It is on this basis that it was urged that wife 's sister 's husband 's son was not eligible.
The argument is that the wife 's sister 's husband would be unable to perform the Shradha of the adoptive father because the adoptee would not cease to be the Shadu of the person to whom the adoption is made, it was further said that the adoptee would the incapable of performing the Sradh of the adoptive maternal grand father as the latter would be the adoptee 's father in law.
Unfortunately however for the plaintiff 's case 'his witnesses were unable to quote any authority except their own ipso dixit for this proposition that the adoptee would be incapable of performing the Sradh of his adoptive father or adoptee maternal grand father.
The plaintiff 's witness Anantkrishna Sastri a Mahamahopadhyaya, made a statement that according to Dharmashastras a wife 's sister 's husband cannot be adopted.
As authority for this proposition he relied on a passage in Dattak Mimanea which prohibits the adoption of a daughter 's son, a sister 's son and a mother 's sister 's son and adds thus: "This clearly proves that a daughter 's son and a mother 's sister 's son are (in this respect) equal to a sister 's son.
This is just proper because there is in these three, the same degree of (prohibited) marriageship (Viruddha Sambandha).
" It is true that Dattak Mimansa has in a later passage gone further and said that son of a woman who could not be married because of Virudha Sambsndhar relationship should be excepted from adoption 649 We have however held in Mrs. Abhiraj Kuer vs Debendra Singh(1) in which judgment has been delivered to day that this rule in Dattaka Mimansa against Viruddha Sambandha putra is only recommendatory and not mandatory.
Apart from that it is difficult to see how the wife 's sister 's husband can be considered to be ViruddhaSambandha putra.
It is thus clear that even if the limitations of the orthodox Dattak adoption apply to Goda adoption there is no bar to the adoption of, the wife 's sister 's husband.
On the materials on the record we are also satisfied that there is no custom barring the adoption of the wife, is sister 's husband in Goda Dattak form.
On the question whether in Goda Dattak adoptions the adoptee must if possible be from the family of the adoptive father, it is important to notice that the several objects for which Goda Dattak adoptions are made may well be satisfied even if the adoptee be from some other Vallabhacharya family.
Practically the only evidence given in support of the case that there is a custom as alleged that if possible the adoptee must be from the adoptive father 's family is by the plaintiff himself.
His witness Lakshmi Shankar Upadhaya, who, as al.
ready stated, appears to have considerable ex perience of Goda Dattaka adoptions does not speak of any such custom.
Even his witness Hari Krishna Virji Sastri who appears rather partial to him it may be mentioned that he admits having read even the plaint on being sent for by the plaintiff does not speak of any such custom.
Against the plaintiff 's own evidence that there is such a custom we, find defendant No. 2 giving three instances where boys from other families were adopted in Goda Dattak even though members in the adoptive father 's family were present.
It is true that the evidence does not show whether such adoptions from other family (1) C.A. No. 379 of 1958 decided on 15.9,61, 650 took, place only after members in the adoptive father 's family who might have been available for adoption declined to be adopted.
It will be unreasonable however to expect such evidence as to the exact circumstances under which adoptions were made from other families even in the presence of members in the adoptive father 's family.
But even if it be correct to say that the defendant has not established clearly that members from other families were adopted even though members in the adoptive father 's family were willing to be adopted, the fact remains that the plaintiff has not been able to establish by either any authoritative texts or from the opinion of some person well learned about the Goda Dattaka customs that a custom exists barring the adoption of members from other Vallabhacharya families if it were possible to adopt members from the adoptive father 's family.
This brings us to the contention most vehemently urged before us that the evidence establishes an implied prohibition by Anniruddhalalji of the adoption of any person other than the plaintiff or one of his two sons.
Reliance is placed first on the letter exhibit 115.
We are inclined to agree with the High Court that this letter was written by Mahalakahmi Bahuji Maharaj of her own accord and cannot be brushed aside as having been written under the influence of the plaintiff.
All that the letter shows however is that Anniruddhalalji had expressed a desire that Gokul Nath (who is plaintiff 's son) should be taken in adoption to him.
While a reasonable reading of this letter would show that Anniruddhalalji authorized Mabalakshmi Bahuji Maharaj to make an adoption and that he expressed his preference for the adoption of Gokal Nath, the letter does not show even remotely that Anniruddhalalji indicated any wish that no body except Gokul Nath should be adopted.
It is interesting to remember in this connection that plaintiff 's own in the Plaint is not that Anniruddhalalji had 651 declared any wish that nobody other than Gokul, Nath should be adopted but that his desire was that, "no body other than the 1 plaintiff or any one of hit sons should be adopted.
" The plaintiff in his own testimony has no doubt said that Anniruddhalalji after asking the plaintiff to give his eldest son in Goda adoption told Mahalakshmi Bahuji Maharaj that ,only his brother 's son should be adopted".
if, this was true it is difficult to understand why the plaintiff tried to make a case in the plaint that Anniruddhalalji had declared a wish that nobody except the plaintiff himself or one of his sons should be adopted.
The plaintiff 's witnesses who have spoken as regards the declaration by Anniruddhalalji of his wish in this matter of adoption have not stated that Anniruddhalalji said that only his brother 's son should be adopted.
His witness Nateswarji the brother of Anniruddhalalji 's, first wife says that "during his last illness Anniruddhalalji had spoken in my presence and in the presence of Defendant No. 1 that his desire was to adopt Bhaiya Raja and he had inquired of Defendant No. 1 what her desire was".
Defendant No 1 had replied that her desire was the same as his desire.
Such a talk had taken place only once in my presence.
" Accepting that Nateshwarji has stated the full truth here his evidence does not show anything more than was indicated in the letter exhibit 115 itself and does not show that Defendant No. 1 prohibited even by implication the adoption of anybody else excepting Bhaiya Raja (the plaintiff 's son).
The plaintiff 's witness Gobardhan stated in hip, evidence : Anniruddhalalji was speaking to all persons in touch with him that he wanted to take Bhaiya Raja in "Goda Dattak" and later that "he was spoken to by Maharaj that he wanted to take Bhaiya Raja in adoption".
Even this witness who goes to the length of saying that a date was actually fixed by Anniruddhalalji for the adoption of Bhaiya Raja & story which none of the other witnesses give is not prepared to say that Anniruddhalalji said to Defendant No. 1 or to anybody else that nobody other 652 than Bhaiya Raj should be adopted.
It is not possible in this state of the evidence to accept as true the plaintiffs uncorroborated testimony that Anniruddhalalji said to defendant No. 1, Mahalakshmi Bahuji Maharaj that only the plaintiff 's son should be adopted.
We are therefore of opinion that the High Court is right in its conclusion that no implied prohibition by Anniruddhalalji of adoption of anybody other than the plaintiff or his sons has been proved.
The last argument that the parties being governed by the Madras School of Mitakshara, the adoption is invalid in the absence of consent by the husband 's sapindas must be rejected, for the simple reason that the letter exhibit 115 and the evidence of the plaintiffs own witnesses justify the conclusion that in his life time Anniruddhalalji authorised Mahalakshmi Bahuji Maharaj to make an adoption after his death though at the same time indicating his preference for one particular boy.
The necessity of consent of the husband 's sapindas would arise if the Madras School of Mitakshara law was applicable only where there was no authority from the husband.
In the present case there was authority from the husband to adopt and so even if the rule of Orthodox Dattak adoption was applicable and Anniruddhalalji was governed by the Madras School of Mitakshara the question of any consent of husband 's sapindas does not arise at all.
In the view we have taken of this argument it is unnecessary for us to consider whether the High Court was right in rejecting the application for amendment of the plaint that was made by th plaintiff in order to induce the High Court to consider this very argument.
It is also not necessary for us to enter into the question on which some evidence appears to have been led 1 though no issue was framed, viz. whether Goda Dattak adoption is a mere variant 653 of the orthodox Dattak adoption or an affiliation altogether different from Dattak adoption.
We therefore express no opinion on this question.
The appeal is dismissed with costs.
Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The first respondent on the death of her husband who was a descendant of the famous Vaishnava teacher Vallabhacharyaji and was possessed of certain Devattar properties belong to the Thakur of which be was the Shebait, adopted her sister 's husband as a son under the Goda Dattak Custom of adoption which prevailed amongst the Vallabhacharya community.
The appellant who was the own brother of the deceased adoptive father contended inter alia that under the Goda Dattak custom a widow could not adopt her sister 's husband as a son to her husband, that the adoptee should belong to the family of the adopter and that the widow should obtain the ,consent of her husband 's sapindas for the adoption.
Held, that the rule in Dattaka Mimansa against the adoption of the son of a woman who could not be married because of Viruddha Samandha relationship is recommendatory and even if the limitation of the orthodox Dattak adoption apply to Goda adoption there is no bar to the adoption of the wife 's sister 's husband.
Abhiraj Kuer vs Devendra Singh, C. A. No. 379 of 1961 decided on 15 9 61, referred to.
In the present case it has not been proved that under the Goda Dattak customs a custom existed barring the adoption of members of other Vallabhachari families if it were possible to adopt members from the adoptive father 's family.
As in the present case there was authority from the husband to adopt the question of the consent of the sapindas of the ' husband did not arise even if he was governed by the Madras School of Mitakshara.