judgement:
minal Appeal No. 138 of 1968.
Appeal by special leave from the judgment and order dated the June 10, 1968, of the Bombay High Court in Criminal Appeal No. 667 of 1967.
V. section Desai, P. section Nadkarni and Vineet Kumar, for the appellants.
section K. Dholakia and B. D. Sharma, for the respondent.
The Judgment of the Court was delivered by Ray, J.
This is an appeal by special leave from judgment dated 10 June, 1968 of the High Court at Bombay setting aside the order of acquittal of the appellants and convicting them under section 325 read with section 34 of the Indian Penal Code for having assaulted and injured Choharjasing and sentencing each of the appellants to four years rigorous imprisonment and a fine of Rs. 1000 each and six months rigorous imprisonment in default of payment of fine and further convicting the appellants under section 323 read with section 34 of the Indian Penal Code for having assaulted and injured Ramkeshwarsing and sentencing each of the appellant 's to three months rigorous imprisonment.
The sentences were to run concurrently.
The appellants and another accused were charged under sec tions 143, 147, 307 read with section 149 of the Indian Penal Code.
The four appellants were also charged under section 148 of the Indian Penal Code.
In the alternative the appellants were charged under section 307 read with section 34 of the Indian Penal Code.
The appellants and the other accused were further charged under section 326 read with section 149 of the Indian Penal Code.
In the alternative they were charged under section 324 read with section 34 of the Indian Penal Code.
The appellants and the other accused were further charged under section 324 read with section 149 of the Indian Penal Code.
In the alter native they were charged under section 324 read with section 34 of the Indian Penal Code.
The complainant Choharjasing and Nandlal are brothers.
They resided in room No. 5 of Vidya Bhuvan Kurla along with their cousin Ramkeshwarsing and Gayitrising brother in law of Choharjasing.
Chollarjasing.
Nandlal and Ramkeshwarsing were employed at Premier Automobiles at Kurla.
The, prosecution witness Awadh Narayan who resided at Moturam Chawl was also employed at Premier Automobiles.
Another prosecution witness 624 Dinanath was a shopkeeper residing at Halav Pool, Kurla.
The first appellant dealt in milk and resided at Maulana Chawl, Halav Pool, Kurla.
Appellant No. 2 is the brother of appellant No. 1 and resided at a nearby Chawl at Halav Pool and was employed at Premier Automobiles at Kurla.
Appellant No. 3 also resided at Halav Pool Chawl, Kurla and was employed at Premier Automobiles, Kurla.
Appellant No. 4 resided at another Chawl at Kurla and was also employed at Premier Automobiles, Kurla.
Accused No. 5 worked as a Mehtaji of one Jairaj Pandye and resided at Bhagwat Bhuvan, Halav Pool, Kurla.
The prosecution case was this.
The relation between Cho harjasing and his brother Nandlal on the one hand and appellants No. 1 and 2 on the other were strained for some time.
On the morning of 15 October, 1964 Nandlal brought a truck load of earth and spread the same in front on their room.
On that account there was some altercation between him and appellants No. 1, 2 and 3.
On the morning of 16 October, 1964 Choharjasing left his room and went to Podar Hospital at Worli for undergoing an operation for fistula.
He returned to his room at about 11 or 12 noon.
On his return he was told by his brother Nandlal about the quarrel and that the appellants and another accused had given a threat and enquired as to where Choharjasing was.
Nandlal further told Choharjasing that the appellants and the other accused had threatened that they would break Choharjasing 's hands .and feet.
Choharjasing went to the Police Station and filed a non cognizable complaint.
The police directed Choharjasing to approach the proper criminal court.
Choharjasing went to prosecution witness Dinanath and told him about the threats.
Choharjasing then returned to his room and launched with his brother Nandlal, cousin Ramkeshwarsing and brother in law Gaitrising.
Choharjasing was not feeling comfortable after the ,operation.
He sat on a charpoy (cot) outside his room.
Nandlal was with Choharjasing.
Ramkeshwarsing was inside the room.
At about 5 or 5.30 p.m. the appellants came there.
Appellant No. 1 was armed with a lathi.
Appellants No. 2, 3 and 4 had also lathis or something like iron bars.
Accused No. 5 was standing at some distance.
Accused No. 5 instigated the appellants by shouting the words 'Dekhte kya ho, Mar Dalo ' (what are you looking at, assault them).
Appellant No. 1 also shouted to assault.
The appellants surrounded Choharjasing and Nandlal and started assaulting them with weapons.
Appellants No. 1 and 4 hit Choharjasing.
Appellants No. 2 and 3 hit Nandlal.
Choharjasing fell down.
The assault continued.
Appellant No. 2 thrust his stick in the mouth of Choharjasing and he lost four of his teeth.
Choharjasing and Nandlal both fell unconscious.
Ramkeshwar sing received a blow on left hand.
625 The Sub Inspector of Police, on getting a telephone message came to the spot.
On the way the Sub Inspector met appellants No. 1 and 4 each of whom had injuries on their person.
They were put in the police van.
The van was taken to the place of incident.
Choharjasing and Nandlal were lying unconscious.
Witnesses Awadh Narayan and Dinanath were present there.
Choharjsing.
and Nandlal were put into the van and removed to the hospital.
At the time of admission to the hospital Choharjasing had 12 injuries.
Nandlal had 5 injuries.
Appellant No. 4 had 3 injuries.
Choharjasing and Nandlal were detained in the hospital as indoor patients from 16 October 1964 to 12 November, 1964.
Appellant No. 4 in spite of medical advice left the hospital on 17 October, 1964.
The trial Court acquitted all the 5 accused.
The trial Court gave these reasons.
Choharjasing and Ramkeshwarsing, did not mention accused No. 5.
Witness Award Narayan did not mention accused No. 5.
Ramkeshwarsing did not mention accused No. 2, 3 and 5.
Witness Awadh Narayan did not mention accused No. 3.
Choharjasing and Nandlal were all thin and of weak build.
The accused were hefty in build.
It is difficult to say why so many persons would engage in the assault on two weak persons, particularly when Choharjasing had just returned after operation from the hospital.
The injuries on appellants No. 1 and 4 were not satisfactorily explained.
The possibility of persons from the crowd feeling enraged at the assault on accused No. 1 to 5 who were holding important offices in the local Congress organisation and then rushing forward and inflicting injuries on the assaulters of Choharjasing and Nandlal two well known persons of the locality cannot be ruled out as contended for by the defence.
Iron bars and sticks were not recovered.
Ramkeshwarsing had failed to go to the police station of his own accord.
He and Choharjasing did not implicate accused No. 5 in their earlier statements.
The presence of accused No. 2 and 3 is not free from doubt.
Ramkeshwarsing and Awadh Narayan did not mention accused No. 2 in their earlier statements.
Ramkeshwarsing did ;not mention the name of accused No. in his statement to the police.
Choharjasing and Nandlal could not explain how accused No. 1 and 4 came to receive the injuries.
Though the injuries on Choharjasing and Nandlal are no doubt serious, the evidence does not satisfactorily establish that they were caused by the accused in furtherance of their common intention and that they formed an unlawful assembly and used force or violence and they rioted with deadly weapons in prosecution of their common intention.
The defence that accused No. 1 was assaulted and seeing 626 this accused No. 4 came there and he was assaulted cannot in the circumstances be overlooked.
With these reasons the trial Court acquitted all the five accused.
The High Court set aside the order of acquittal.
The High Court arrived at these conclusions.
The evidence established that the grievous injury inflicted on Choharjasing and Nandlal and the simple injury inflicted on Ramkeshwarsing were inflicted by the appellants.
The trouble arose on account of dispute over the open space adjoining the room of Choharjasing.
The appellants could not be convicted under section 307 of the Indian Penal Code The appellants were guilty of causing grievous hurt.
The High Court, therefore, convicted the appellants for injuries sustained by Choharjasing, Nandlal and Ramkeshwarsing.
Counsel for the appellants made these submissions.
The High Court interfered with the acquittal without giving any reasons The first information report about the cognizance of the offence was wrongly admitted in evidence.
The incident on the morning of 16 October, 1964 could not be believed and therefore the entire prosecution would fail.
As to the incident on the morning of 16 October, 1964 the trial Court said that the time of recording the complaint on 16 October, 1964 was 11.05 am.
where as the complainant 's version in court was that he returned from the hospital at about 11 a.m. or 12 noon, when he received information from Nandlal.
Further in the complaint Choharjasing did not mention about any of the accused and Nandlal also did not mention accused No. 5.
The land on which earth was spread belonged to one Khot and therefore appellant No. 1 could not have interest in that land.
Or these grounds the trial Court did not accept the version that there was any occurrence on the morning of 16 October, 1964.
The High Court, however, accepted the version that there was an incident on the morning of 16 October, 1964 and said that Chohajasing would not have taken the trouble of going to the police and lodging a complaint.
The High Court gave two broad reasons for accepting the prosecution version about the incident on the morning of 16 October, 1964.
First, there was the complaint by Choharjasing.
Secondly, Choharjasing had gone to the hospital on the morning of 16 October, 1964 and on his return from the hospital he went to lodge the complaint.
Choharjasing would not have done so, if there had been no incident in the morning.
The High Court referred to the first information report about the commission of the offence and said that once the statement was admitted in evidence it afforded a very strong corroboration 627 to the testimony of Choharjasing so far as the complicity of accused No. 1 to 4 in the crime was concerned and the first information report was admissible under section 157 of the Evidence Act.
The first information report is not substantive evidence.
It can be used for one of the limited purposes of corroborating or contradicting the makers thereof.
Another purpose for which the first information report can be used is to show the implication of the accused to be not an afterthought or that the information is a piece of evidence res gestao.
In certain cases, the first infor mation report can be used under section 32(1) of the Evidence Act or under section 8 of the Evidence Act as to the cause of the informant 's death or as part of the informer 's conduct.
The High Court was wrong in holding that the first information report would be admissible under section 157 of the Evidence Act.
When the maker of the first information report was examined in court the report was not tendered by the prosecution in accordance with the provisions of the Evidence Act.
The appellants were denied the opportunity of cross examination on the first information report.
The first information report was therefore wrongly relied upon in evidence for the purposes suggested by the High Court.
It is therefore to @ seen as to whether the High Court was justified in convicting the appellants on the evidence and the grounds mentioned in the judgment.
The evidence of the complainant is that in the afternoon of 16 October, 1964 all the appellants came armed with lathis or something like iron bars and all the four appellants assaulted Choharjasing and Nandlal with what the appellants had in their hands.
The further evidence is that appellant No. 2 thrust the lathi into Choharjasing 's mouth and be lost four of his teeth as a result of that.
Nandlal in his evidence stated that appellant No. 2 gave a blow with a stick on his head.
Nandlal and Choharjasing were attempting to run away when appellant No. 3 assaulted Nandlal on his head with what looked like an iron bar and appellant ,No. 4 also assaulted him with what he was holding and which also looked like an iron bar.
Nandlal further said that appellant No. 2 assaulted him before he fell down and after he bad fallen down all the appellants assaulted him.
Witness Ramkeshwarsing said that he saw all the appellants and when Choharjasing and Nandlal had fallen on the ground they were assaulted by all the appellants with sticks and iron bars.
Ramkeshwarsing further said that in the statement to the police he mentioned that he saw appellant No. 1, 2 and two others.
628 Witness Awadh Narayan said that he knew all the appellants and he saw sticks in their hands.
He corroborated Nandlal 's evidence that appellant No. 2 assaulted with a stick Choharjasing on the mouth.
He also said that all the appellants continued assaulting Choharjasing and Nandlal.
He said that in his statement to the police he mentioned the names of appellants No. 1 and 2.
Witness Dinanath said that he knew Choharjasing and Nandlal for a few years and he also know the appellants.
He said that appellant No. 2 had a stick in his hand and appellant No. 2 assaulted Nandlal on his head.
His further evidence was that appellant No. 2 gave a straight and perpendicular blow with a stick on the mouth of Choharjasing.
The Sessions Court was wrong in holding that Ramkeshwarsing did not mention the name of appellant No. 2.
He not only stated in his oral evidence that he had mentioned the name of appellant No. 2 to the police but this was also not challenged in cross examination.
The other witnesses Choharjasing, Nandlal, Awadh Narayan and Dinanath all spoke about the appellants who assaulted Choharjasing and Nandlal.
As to appellant No. 3 Choharjasing said that appellants No. 3 and 4 carried something like iron bars of a black colour.
As far as appellant No. 3 is concerned there is no contradictory police statement on the part of Choharjasing.
The oral evidence of Nandlal in relation to appellant No. 3 was that he assaulted Nandlal.
Nandlal in his statement to the police also mentioned about appellant No. 3.
There is no contradictory police statement on the part of Nandlal as far as appellant No. 3 was concerned.
Nor was any such contradiction put to Nandlal.
The medical evidence about the injuries to Choharjasing was that the injuries could be caused by hard and blunt substance like iron bars and lathis and were likely to cause death if not medically attended to.
The medical evidence about the injuries to Nandlal was that those injuries could be caused by coining in contact with hard and blunt substance such as lathi, bamboo, stones, iron bars etc.
and were serious injuries and were likely to cause death if not medically attended to.
Ramkeshwarsing 'in his oral evidence said that the appellants assaulted Choharjasing and Nandlal, He said that he did not mention appellants No. 3 and 4 in the police statement because he did not know them.
There is no contradictory police statement as far as witness Ramkeshwarsing is concerned in relation to appellant No. 3.
In his police statement he mentioned appellants No., 1 and 2 and he said that two others assaulted Choharjasing and Nandlal.
Ramakeshwarsing thus spoke of four persons 629 assaulting Chohajasing and Nandlal.
That was not challenged in cross examination.
Witness Awadh Narayan spoke of appel lant No. 3.
There is no contradictory police statement of Awadh Narayan in relation to appellant No. 3.
Witness Dinanath spoke about appellant No. 3 assaulting Choharjasing and Nandlal.
There is no cross examination of Dinanath that appellant No. 3 gave a blow with a stick to Nandlal.
On behalf of the appellants it was contended that appellants, No. 2 and 3 did not receive any injuries and therefore it was improbable that they would be involved in the assault.
That contention is unacceptable because of the clear and convincing evidence of several witnesses about appellants No. 2 and 3 assaulting Choharjasing and Nandlal.
The trial Court was wrong in holding that the names of appellants No. 2 and 3 were not mentioned by the witnesses to the police.
The names of appellants No. 2 and 3 were mentioned by the witnesses to the police.
The oral evidence of the witnesses was to that effect.
That evidence was not challenged.
The High Court was therefore justified in coming to the con clusion that the acquittal of appellants No. 2 and 3 by the trial Court was to be set aside.
The evidence of the several witnesses that appellants No. 2 and 3 assaulted Choharjasing and Nandlal cannot be discarded on the statement that the appellants No. 2 and 3 did not receive injuries.
It does not follow that appellants ,No. 2 and 3 were not at the scene of occurrence and did not commit the acts of assault just because there was no injury on them.
As far as appellants No. 1 and 4 are concerned the High Court was correct in holding that they were wrongly acquitted by the trial Court.
12 injuries on Choharjasing and 5 injuries on Nandlal were all serious in nature.
The oral evidence was rightly accepted by the High Court that all the appellants were guilty of assaulting Choharjasing, Nandlal and Ramkeshwarsing.
Counsel for the appellants relied on the decisions of this Court in Harbans Singh and Anr.
vs State of Punjab [1962]Suppl.
(1) S.C.R. 1041 and Khedu Mohton & Ors.
vs State of Bihar ; in support of the proposition that the High Court should not have interfered with the acquittal by the trial Court and if on the ruling of this Court in Khedu Mohton & Ors.
vs State of Bihar (supra) two reasonable conclusions can be reached on the basis of the evidence on record then the acquittal of the accused should be preferred.
The observations in Khedu Mohton 's case mean this: If two conclusions can be reached with a plausible appearance of reason the court should can in favour of that which leads to acquittal and not to that 630 which leads to t conviction.
Two views and conclusions cannot both be right and one must be preferred over the other because our criminal jurisdiction demands that the benefit of doubt must prevail.
As to powers of the appellate court this Court in Sanwat Singh & Ors.
vs State of Rajasthan ; laid down three principles.
First, the appellate court had power to review the evidence upon which the order of acquittal is founded.
Second, the principles laid down by the Judicial Committee in Sheo Swarup vs King Emperor 61 I.A. 398 are a correct guide for the approach by an appellate court.
These principles are that the views of the trial Judge as to the credibility of the witnesses, the presumption of innocence in favour of the accused, the right of the accused to the benefit of doubt and the slowness ,of an appellate court in disturbing the finding of fact arrived at by a Judge who had the advantage, of seeing the witnesses are the 'rules and principles ' in the administration of justice.
Thirdly, the appellate court in coming to its own conclusion should not only consider every matter on record having a hearing on the questions of fact and the reasons given by the trial court in support of the order of acquittal, but should also express reasons to hold that the acquittal was not justified.
in the light of the rulings of this Court to which reference has been made, we are satisfied that the High Court kept in view the rules and principles of appreciation of evidence and the right of the accused to the benefit of doubt and the, High Court gave reasons as to why the occurrence on the morning of 16 October, 1964 was proved and also why the appellants were found on the evidence on record to be guilty of having committed an offence.
Benefit of doubt was not sustainable in the present case inasmuch as the materials on record.
did not exclude the guilt of the appellants.
This Court in Khedu Mohton & Ors.
vs State of Bihar (supra) set aside the judgment of the High Court and restored that of the Sessions Judge by acquitting the appellants because the High ,Court did not deal with finding of the first appellate court that it was unsafe to place reliance on the evidence of four prosecution witnesses who were interested witnesses.
Another feature which vitiated the approach of the High Court in that case was that there was a delay of 8 days in filing the complaint and the first appellate, court said that it threw a great deal of doubt on the prosecution story.
The High Court made reference to some information lead before the Police and did not properly assess the delay in the filing of the complaint.
This Court found there that the information before the police prior to the complaint was 631 an application that there was an apprehension of breach of peace.
It is in this context of facts that this Court said that the High Court was wrong in setting aside the acquittal.
Once the appellate court came to the conclusion that the view of the trial court was unreasonable that itself would provide a reason for interference.
Again if it was found that the High Court applied the correct principles in setting aside the order of acquittal this Court would not ordinarily interfere with the order of conviction passed by the High Court in an appeal against acquittal or review the entire evidence where the High Court was right in its view of evidence.
Therefore, if the High Court has kept in view the rules and principles of appreciation of the entire evidence and has given reasons for setting aside the order of acquittal this Court would not interfere with the order of the High Court [See Harbans Singh vs State of Punjab (supra).
This Court in Nihal Singh & Ors.
vs State of Punjab ; said that there were two ways of dealing with an appeal by this Court from an order of conviction setting aside an acquittal.
One of the modes was to go through the evidence and find out whether the High Court had infringed the principles laid down in Sanwat Singh vs State of Rajasthan (supra) or whether the appeal was an exceptional one within the ruling of this Court in State of Bombay vs Rusy Mistry A.I.R. 1960 S.C. 391 where the finding was such that 'it shocks the conscience of the court or that it disregarded the forms of legal process or substantial and grave injustice had been done.
In dealing with an appeal against an acquittal the High Court can go into the questions of law and fact and reach its own conclusion on evidence provided it pays due regard to the fact that the matter had been before the Court of Sessions and the Sessions Judge had the chance and opportunity of seeing the witnesses depose to the facts See Laxman Kalu Nikalie vs The State of Maharashtra (1968) 3 S.C.R. [685].
The High Court was correct in setting aside the order of acquittal and convicting the appellants.
The appeal therefore fails and is dismissed.
If the appellants are on bail their bail bonds are cancelled.
They will surrender and serve out the sentence.
V.P.S. Appeal dismissed.

summary/full:
The High Court set aside an order of acquittal of the appellants on various charges and convicted them.
One of the items of evidence on which the High Court relied was the first information report.
Though it was not proved through its maker when be gave evidence in the trial court.
the High Court held it to be admissible under section 157 of the Evidence Act.
in appeal to this Court, HELD : (1) The High Court was wrong in holding that the First Information Report would be admissible under section 157 of the Evidence Act.
Under that section.
it could not be used as substantive evidence but only to corroborate its maker.
The appellants were also denied the opportunity of cross examination on the First Information Report.
[627 A D] (2) The High Court, however, was correct in setting aside the order of acquittal and convicting the appellants on the other evidence.
[1639 D G] In dealing with an appeal against acquittal the High Court can go into questions of law and fact and reach its own conclusion on evidence provided it pays due regard to the principles for such review.
These principles are giving due regard to, the views of the trial Judge as to the credibi lity of the witnesses, the presumption of innocence in favour of the accused, the right of the accused to any benefit of doubt and the slowness of an appellate court in disturbing the finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.
The appellate court ill coming to its own conclusion should not only consider every matter oil record having a bearing on questions of fact and the reasons given by the trial court in support of the order of acquittal but should also express reasons for holding that the acquittal was not justified.
If two conclusions can be reached with a plausible appearance of reason the court should lean in favour of that which leads to acquittal and not to that which lead, to conviction.
But once the appellate court comes to the conclusion that the view of the trial court was unreasonable that itself would provide a reason for interference.
[629 H; 630 A E. 631 B D] In the present case, the High Court bid kept in view the rules and principles of appreciation of evidence in setting aside the order of quitting.
In such a case.
this Court would not ordinarily interfere with the order of conviction by the High Court in an appeal against an acquittal, or review the evidence.
[630 E; 631 B D] Harbans Singh and Anr.
vs State of Punjab, [1962] Supp. 1 S.C.R. 104, Senwat Singh & Ors.
vs State of Rajasthan, ; Nihal Singh & Ors.
vs State of Punjab, ; , State of Bombay vs Rusy Mistry, A.T.R. and Laxman Kalu Nikalje State of Maharashtra. , followed.
623 Khedu Mohton & Ors.
vs State of Bihar, ; and Sheo Swarup vs, King Emperor, 61 I.A. 398, referred to.


judgement:
Appeal No. 1709 of 1969.
Appeal by Special Leave from the judgment and Decree dated April 10, 1969 of the Punjab & Haryana High Court in Letters Patent Appeal No. 70 of 1964.
J. C. Talwar and R. C. Kohil, for the appellant.
V. C. Mahajan, for the respondent.
The Judgment of the Court was delivered by Vaidialingam, J.
This appeal, by special leave, is directed against the judgment and order dated April 10, 1969 of the Full Bench of the Punjab & Haryana High Court in Letters Patent Appeal No. 70 of 1964, dismissing Civil Writ Petition No. ' 22 of 1963 filed by the appellant to quash the order of the respondent dated September 1 1, 1962.
94 The circumstances that led to the filing of the Civil Writ Petition No. 22 of 1963 may be briefly stated : In the elections held in October, 1959, the appellant was elected as a Member of the Municipal Committee, Phagwara.
On June 20, 1960, a meeting was held for the election of the President and Vice President of the Committee.
The meeting was presided over by the Sub Divisional Officer (Civil).
According to the Appellant the Presiding Officer conducted the elections of the President and the Vice President in an irregular and illegal manner and was favouring the, party led by another committee member Bhag Ram.
When the appellant and another member Om Prakash Agnihotri protested against this conduct of the Sub Divisional Officer (Civil), the group led by Bhag Ram brought into the Town Hall some unruly elements from outside who created panic and confusion and manhandled Om Prakash Agnihotri, who was also a candidate for the presidential office.
It may be stated at this stage that according to the respondent, Om Prakash Agnihotri created a scene in the meeting and the appellant who was a staunch supporter of Om Prakash Agnihotri brought into the Town Hall, a number of outsiders with a view to cause chaos and confusion in the meeting and that the appellant did not maintain decorum and did_not care to obey the directions of the Chairman.
Ultimately, Bhag Ram was elected as the President.
The appellant and certain other members of the Committee filed Writ Petition No. 1095 of 1960 in the High Court challenging the election of Bhag Ram as the President.
But the said writ petition was dismissed on the ground that the disputed facts involved therein could not be gone into by the High Court in proceedings under article 226 of the Constitution.
While the writ petition No. 1095 of 1960 was pending in the High Court, the respondent State on December 5, 1960 served a notice on the appellant under the proviso to section 16(1) of the Punjab Municipal Act, 1911 (Punjab Act III of 1911) (hereinafter to be referred as the Act) calling upon,him to show cause within 21 days why he should not be removed from the membership of the Committee under section 16 (1 ) (e) of the Act.
The said notice charged the appellant of having brought outsiders into the Town Hall on June 20, 1960 to cause disturbance to the meeting that was being then held and, that he did not maintain decorum nor did he care to obey the rulings of the Chairman.
In consequence the appellant was charged of having flagrantly abused his position as a member of the Committee.
The appellant sent a reply on December 12, 1960 controvert ing the allegations made in the notice.
In turn he averred that the, 95 Sub Divisional Officer (Civil) who presided over the meeting, was actively helping the party led by Bhag Rain and it was the latter who brought in outsiders to create confusion and disorder.
He denied having brought any outsiders into the hall as alleged in the notice.
He further stated that the crowd that was ' brought into the hall by Bhag, Ram manhandled Om Prakash Agnihotri.
He .further denied the allegation that he did not maintain decorum and that he did not obey the Chair.
On the other hand, he stated that he was quite obedient to the Chair and that he was not responsible for the confusion that prevailed at the meeting.
Finally he stated that even if all the allegations made in the show cause notice were true, they will not bring the matter under section 16(1) (e) of the Act justifying action being taken against him by way of removing him from the Committee.
On September 11, 1962 the Governor of Punjab passed an order section 16 ( 1 ) (e) read with proviso to section 1 6 (1 ) of the Act removing the appellant from the membership of the Municipal Committee, Phagwara.
By the same order the appellant was also disqualified for a period of three years under sub section
(2) of section 16 of the Act.
The appellant challenged the above order of the State Government before the High Court in Civil Writ No. 22 of 1963.
The main plea that was taken in the writ petition appears to be that even if all the allegations contained in the show cause notice of December 5, 1960 are true, the appellant cannot be considered to have "flagrantly abused his position as a member of the Committee" so as to attract the penal consequences under section 16 ( 1 ) (e) of the Act.
According to the appellant the allegations made against him regarding his conduct at the meeting of the Committee held on June 20, 1960 have, no relevancy for invoking the powers conferred on the State Government under section 16(1) (e).
In consequence he alleged that the order dated September 11, 1962 removing him from the membership of the Committee and disqualifying him was null and void and was an abuse of the power vested in the Government under section 16 of the Act.
The State contested the writ petition on the ground that when it was found at the Committee meeting that Om Prakash Agnihotri could not secure support for being elected as the President, the appellant who was his ardent supporter went out and deliberately brought some hooligans into the Town Hall and created trouble at the meeting.
Further the appellant behaved in a very disorderly manner and did not obey the rulings given by the Sub Divisional Officer (Civil) who was then presiding over the meeting for the purpose of conducting the election of the President and the Vice President.
As the appellants conduct Was such as to attract the penal provisions of section 16 (1 ) (e) of the Act, the show cause notice 96 was issued under the proviso to the said section for which the appellant sent a very elaborate reply.
As the explanation sent by the appellant was not found to be acceptable the state went passed the order dated September 11, 1962 and it was well within its powers.
The learned Single Judge who dealt with the writ petition was of the view that the allegations made against the appellant in the show cause notice, even if true, will not attract section 16 (1) (e) of the Act.
According to the learned Judge it is only when a member of the Committee has shown favour or indulged in self aggrandisement by virtue of his position as a member that the said provision Will apply.
On this reasoning, the learned Judge held that the grounds which led to the making of the order dated September 11, 1962 were neither germane nor relevant for the purpose of attracting section 16(i) (e).
However, deplorable the conduct of the appellant as alleged may have been at the meeting held on June 20, 1960, that by itself will not enable the State Government to take action under section 16 (1) (e) of the Act.
Ultimately, by his judgment dated September 18, 1963, the learned Judge quashed the order of the Government dated September 11, 1962 as being illegal and void.
The State carried the matter in Letters Patent Appeal No. 70 of 1964.
The said appeal was heard, in the first instance, by a Division Bench.
The Division Bench was not inclined to agree with the views of the learned Single Judge regarding the interpretation placed on section 16 ( 1 ) (e) of the Act.
The view of the Division Bench is that the conduct of the appellant, as alleged in the show cause notice amount to his having "flagrantly abused his position as a member of the Committee ' so as to attract the penal provisions of section 16 (1) (e) of the Act.
Another point appears to have been taken before the Division Bench, namely, that the order dated September 11, 1962 suffers from the vice of not giving reasons for the action taken by the State Government and on that ground it has to be struck down.
The Division Bench felt that this aspect of the matter is a fairly important one and as such it required consideration by a larger bench.
In the end by order dated August 7, 1968 the Division Bench referred the appeal to a Full Bench for consideration of all aspects.
The appeal came up before the Full Bench of three Judges.
The Full Bench agreed with the view of the Division Bench regarding the applicability of section 16 (1) (e) of the Act and held that the conduct of the Appellant amounted to "flagrantly abusing, his position as, a member of the Committee".
Regarding the question whether the order dated September 11, 1962 has to be 97 struck down on the ground that it does not give any reasons, the Full Bench felt that the said question should be considered by a larger bench of five Judges.
Accordingly by its order dated February 20, 1969, the Full Bench directed the appeal to be heard before a Full Bench of five Judges.
The Letters Patent appeal in consequence was heard by a bench of five Judges.
Three questions were posed for consideration: (a) Whether the decision and order of the State removing the appellant herein from his membership of the Committee under section 16(1 ) (e) of the Act are quasi judicial; (b) If they are quasi judicial, whether the State was required by law to state reasons for its decision; and (c) if the State was bound to give reasons, whether as a fact reasons have been, given for its decision by the State in the order dated September 11, 1962.
After a fairly elaborate consideration of the matter the learned Judges held on points Nos.
(a) and (b) that the order of the State removing a Municipal.
Committee member under section 16 (1) (e) of the Act is a quasi judicial order and as such the State was bound to give its reasons for arriving at a decision.
Regarding point No. (c) the learned Judges, after a thorough examination of the note file produced before them by the State, ultimately held that the State had considered the explanation offered by the appellant and after applying its mind to, the materials: before, it was justified in passing the order removing the appellant from his membership of the Committee and also disqualifying him for a period of three years.
In the result, the Full Bench of five Judges by its order dated April 10, 1969 allowed Letters Patent appeal filed by the State and set aside the order of the learned Single Judge.
The result was that the writ petition filed by the appellant herein was dismissed.
Before we advert to the contentions urged before us by the learned counsel, it is necessary to refer to the relevant provisions of the Act as well as the show cause notice issued by the State as also the final order passed by it.
We will of course refer also to the substance of the reply sent by the appellant to the show cause notice.
98 The relevant provision is section 16 (1 ) (e), its proviso and sub section
(2) of section 16.
They are as follows: "16(1) The State Government may, by notifica tion, remove any member of committee.
(e) if, in the opinion of the State Government he has flagrantly abused his position as a member of the committee or has through negligence or misconduct been responsible for the loss, or misapplication of any money or property of the committee.
Provided that before the State Government notifies the removal of a member under this section, the reasons for his proposed removal shall be communicated to the member concerned, and he shall be given an opportunity of tendering an explanation in writing.
(2) A person removed under this section or whose election or appointment has been deemed to be invalid under the provisions of sub section (2) of section 24, or whose election has been declared void for corrupt practices or intimidation under the provisions of section 255, or whose election the State Government or the Deputy Commissioner has under section 24 refused to notify, shall be disqualified for election for a period not exceeding five years Provided that a person whose election or appointment has been deemed to be invalid under the provisions of sub section (2) of section 24, shall not be disqualified for election or appointment for a period exceeding two years from the date of, disqualification." No rules framed under the Act, having any bearing on the manner in which the Government has to deal with the matter have been brought to our notice.
The show cause notice issued by the State on December 5, 1960 was as follows : "It has been brought to the notice of the Government that on the 20th June, 1960 the Sub Divisional Officer (Civil) Phagwara, convened a meeting of the newly elected members of the Municipal 'Committee, Phagwara, after the election of the Committee, held on 17 10 1959 in order to administer oath of allegiance 99 and to conduct the election of the President of the Committee to enable the new Committee to take over the charge, you also attended that meeting at the time of election of the office of the President.
You were sup porter of the group headed by Shri Om Parkash Agnihotri, member of the Committee whose candidature was proposed for this office.
During the course of the meeting when Shri Om Parkash Agnihotri became unruly and began to tear his clothes, beat his chest and create a row you managed to bring some outsiders in the Town Hall to cause disturbance at the meeting.
More over you did not maintain decorum or care to obey the chair.
By your aforesaid action you have flagrantly abused your position as a member of the Committee within the meaning of section 16(1) (e) of the Punjab Municipal Act 1911.
I am directed to call upon you to show cause under proviso to section 16(1) ibid why you should not be removed from the membership of the Committee under section 16(1) (e) ibid.
You should tender your explanation to the Deputy Commissioner Kapurthala with an advance copy to, Government together with copy (copies) of documents, if any, so as to reach there within a period of twenty days from the date of despatch of this letter.
In case no explanation is submitted by you within the stipulated period, it will be considered that you have no explanation to offer and government may proceed ahead to notify your removal.
" The appellant sent a reply on December 16, 1960.
No copy of the reply sent by the appellant has been placed in the record available before us.
But the nature of the reply can be gathered in the summary given by the High Court.
In his reply the appellant had denied the allegations made against him in the show cause notice.
On the other hand, he averred that the Sub Divisional Officer (Civil) who was presiding over the meeting was taking sides with Bhag Ram and it was the latter who brought hooligans in the Town Hall and created chaos and confusion.
He also denied the allegation that he did not obey the rulings given by the Chair and that he behaved in a disorderly manner.
He further averred that the hooligans who were.
brought into the Town Hall by hag Ram manhandled Om Parkash Agnihotri and created confusion at the meeting.
He further averred that even assuming that all the allegations made against him in the show cause notice are true, section 16 (1 ) (e) of the Act was not attracted as he has not "flagrantly abused his position as a member of the Committee".
The order of the State dated September 11, 1962 was a , follows: 100 "Whereas the Governor of Punjab after giving an opportunity to Shri Bhagat Ram Patanga member Municipal Committee Phagwara of tendering an explanation under the proviso to section 16 of the Punjab Municipal Art 1911 is satisfied that the said Shri Bhagat Ram Patanga has flagrantly abused his position as a member of the aforesaid committee, now, therefore, in exercise of the powers vested in him under clause (e) of, sub section 1 of section 16 ibid, the Governor of Punjab is pleased to remove the said Shri Bhagat Ram Patanga from the membership of the Municipal Committee Phagwara from the date of Publication of this notification in the official Gazette and is further pleased.
to disqualify the said Shri Bhagat Ram Patanga for a period of three years from the aforementioned date under Sub section (2) of Section 16 ibid.
" It will be seen that section 16(1) of the Act gives power to the State Government to remove any member of a committee if he is guilty of one or other of the acts mentioned in cls.
(a) to (g).
In particular we are, concerned with cl.
To attract that provision the State Government must form an opinion that the appellant has "flagrantly abused his.
position as a member of the Committee".
We are not concerned with the other grounds mentioned in cl.
(e) for which also the removal of a member can be ,ordered.
But before notifying the removal of a member from the ,Committee, there is an obligation on the State Government by virtue of the proviso to section 16(1) to communicate to the member concerned the reasons for his proposed removal.
There is also a further obligation to give the concerned member an opportunity of tendering an explanation in writing.
Sub section (2) gives power to the authority concerned when removing a member to disqualify him for election for a period not exceeding five years.
In view of the proviso to section 16(1) the show cause notice was issued ' on December 5, 1960.
The grounds for the action proposed to, be taken were also indicated therein as coming within section 16(1) (e) of the Act.
The appellant was given an opportunity of tendering his explanation in writing.
As mentioned earlier, he also availed himself of the said opportunity.
But the point to be noted is that in order to attract section 16 (1) (e) of the Act, the appellant should be found to have flagrantly abused his position as a member of the committee.
In the case before us the State Government has coming to a finding that the conduct attributed to the appellant at, the meeting held on June 20 ' 1960 amounted to having "flagrantly abused his position as a member of the Committee" and it was on this basis that he was removed from the committee This conclusion arrived at by the Government, though ,not approved by the learned Single Judge, has been accepted as 101 correct by the Division Bench in its order dated August 7, 1968 in the Letters Patent appeal.
The view of the Division Bench has been approved by the Full Bench of three Judges as also of five Judges.
On behalf of the appellant Mr. J. C. Talwar, learned counsel, raised two contentions : (1) The allegations made against the appellant in the show cause notice dated December 5, 1960, even if true, are not such as to attract section 16 ( 1 ) (e) on the ground that the appellant has "flagrantly abused his position as a member of the committee"; and (2) The larger bench of five Judges having held that the proceedings, initiated by the State against the appellant are, quasi judicial and that the State was bound to give reasons, erred in holding that the files produced before it disclosed that there has been a consideration of the appellant 's explanation by the State.
This view of the High Court is erroneous.
Mr. V. C. Mahajan, learned counsel for the State, has not challenged the finding of the High Court in the Letters Patent appeal regarding the proceedings initiated against the appellant being of a quasi judicial nature and the State being bound to give reasons for the order.
But the counsel urged that the appellant has no where raised the contention that there has been no consideration by the State Government of the explanation offered by him before the order dated September 11, 1962 was passed.
He also pointed out that there has been district compliance of the provisions of the statute by the State Government before passing the order dated September 11, 1962.
The counsel further urged that the conduct of the appellant as disclosed by the. events 'that took place at the meeting of June 20, 1960 constitute a flagrant abuse by the appellant of his position as a member of the committee so as to, attract section 16 (1) (e) of the Act.
We are not inclined to accept the contention of Mr. Talwar that the allegations made against the appellant regarding his conduct at the meeting of June 20, 1960 do not amount to his having flagrantly abused his position as a member of the committee .Mr.
Talwar 's contention appears to be that it is only when a abuses his position as a member of the committee and shows favour to others or gains undue, advantage to him that he, can be considered to have flagrantly abused his position as a member of the committee.
No doubt, such a contention has found favour at the hands of the learned Single Judge.
But, in our opinion, the Division Bench was right when it differed from this view of the learned Single Judge.
The nature of the allegations made against the appellant is self evident from averments contained in the show cause notice, extracted above.
The allegations clearly show that the appellant had brought in outside elements in order 102 to create confusion and chaos at the meeting.
The expression "flagrantly" means glaringly, notoriously, scandalously.
A position is said to be abused when it is put to a bad use or for wrong purpose.
No doubt it may vary with the circumstances.
When a meeting of the members of the committee was being held, the appellant had no doubt a right to participate in the proceedings as a member of the committee.
But he had no business, as a member participating in the meeting of the committee, to go outside and bring in hooligans for the purpose of creating confusion and chaos.
This behaviour of the appellant was to, say the least scandulous.
If he had not been a member of the committee, he would not be entitled to be present inside the Town Hall.
at the time of the meeting.
The appellant did flagrantly abuse his position as a member of the Committee while participating in the meeting of the committee, when he brought in rowdies for creating disturbance so that the Committee meeting may not be held peacefully and properly.
Therefore, the State Government was perfectly Justified in coming to the conclusion that action has to be taken 'against the appellant under section 16(1) (e) of the Act.
Therefore the first contention of the learned counsel for the appellant will have to be rejected.
Coming to the second contention, it has to be noted that the appellant does not appear to have raised this contention before the learned Single Judge, nor even in his writ petition.
It was only when the State went up in appeal, that the appellant raised the 'Contention that the proceedings initiated against him are quasi judicial and as such the State was bound to give reasons in its order.
To this limited extent the Full Bench has agreed with the appellant.
The appellant raised in consequence the further contention that the order dated September 11, 1962 has to be struck, down inasmuch as it does not give any reasons.
far as this last aspect is concerned, we have already referred to the fact that the Fall Bench of five Judges went through the file produced before it by the State and has come to the conclusion that there is a clear indication that the representations of the appellant were taken into account and considered by the Government before the order dated September 11, 1962 was passed.
At this stage we may say that inasmuch as very severe penal consequences: result by removing a person from the membership of a committee, to which he: has, been duly elected and as no appeal is provided ' under the statute against an order so, removing him, it is not only desirable but also essential that the State Government should indicate its reasons for forming the opinion as required under section 16 (1 ) (e) of the Act.
When such an order is challenged, the State must place before the Court the necessary materials which were avail able before it and which were taken into consideration for forming ,an opinion to remove the person concerned as a member of the 103 committee.
In this case, it is not possible for us to, know whether the State referred in its counter affidavit in the writ petitioN to the various matters contained in the relevant file, as the, appellant has not Placed before us either a copy of his writ petition or the counter affidavit of the State.
Therefore it is not possible for us to know the actual avertments made by the appellant and the answers given by the State in the writ petition.
The facts given by us, in the earlier part of the judgment regarding the plea of the appellant and the defence raised by the State were all gathered by us from the judgments of the learned Single Judge and of the Letters Patent Bench.
When once the Letters Patent Bench has held that the order passed by the State Government is of a quasi judicial nature, it is obligatory on the part of the State Government to make available to the member concerned the materials available before it and on the basis of which the show cause notice is issued.
Even if those materials are not referred to in the show cause notice in any great detail, it is open to the member concerned to request the State Government to furnish him the materials on which the show cause notice has been issued so that he may give an effective answer not only to the averments, contained in the show cause notice but also to the materials, on the basis of which the show cause notice has been issued.
For instance, in the case before us, the High Court has referred to the information contained in the relevant file before it that there was the report of the Sub Divisional Officer, who presided over the meeting held on June 20, 1960, giving his version of the part played by the appellant.
In his answer to the show cause notice the appellant had denied that he ever brought any outsider into the Town Hall and that, on the other hand, it was Bhag Rain, who had brought outsiders in the Town Hall and created the confusion.
This raises a disputed question of fact on which the Government is not entitled to take view rejecting the plea of the appellant without having disclosed to him the actual allegations made in the report.
But it is unnecessary for us t pursue this aspect further because the appellant has not made a grievance either before the High Court or before us that the proceedings initiated against him suffer from the infirmity of not having made available to him the materials that were before the Government when it passed the order removing him from the membership of the committee.
As pointed out earlier, the only other contention in this regard raised by him and that too at the stage of Letters Patent Appeal was that the order of the Government does not show that his representations have been taken into account by the State.
Again there is also the possibility that the term of the office of the appellant, who was elected to the committee, as early as 1959 may have expired long ago.
If disputed questions of fact arise for consideration by the Government, there 104 is, no provision, so far as we could see, in the Act as to how the State is to deal with the matter.
Further no Rules also have been brought to our notice laying down the Procedure to be a by the, state under such circumstances.
These are all matters of considerable importance which should attract the attention of the State Government, so that suitable provisions may be made either in the Act or in the Rules made by virtue of the rule making power.
In the particular circumstances of this case, we are in agreement with the High Court that the, file produced by the, Government does disclose that the State has considered the appellants representations as also the other relevant materials before it when passing the order dated September 11, 1962.
The 'various reports that were before the State Government, notes made by the concerned department on the basis of the said reports and on the explanation furnished by the appellant as well as the jottings made from time to time by the Minister concerned, have all been very elaborately dealt with by the Full Bench of five Judges.
We do not think it necessary to cover the ground over again.
The learned Judges after a consideration of all those materials contained in the file, produced before them, have recorded a finding that the State Government was justified in rejecting the explanation offered by the appellant and passing the order under attack accepting the reports of the officers concerned. 'We are in entire agreement with the views expressed in this regard by the learned Judges in the Letters Patent Appeal.
From what is stated above, it is clear that there has been a proper consideration of the explanation furnished by the appellant and that there has been no violation of the principles of natural Justice.
The second contention of the learned counsel for the appellant also fails.
In the result, the judgment and order of the High Court in the Letters Patent Appeal are confirmed and the appeal dismissed.
However, there wilt be no order as to costs.
V.P.S. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The respondent State served a notice on the appellant, who was a member of the Municipal Committee, under the proviso to section 16(1) of the Punjab Municipal Act, 1911 calling upon him to show cause why he should not be removed from the membership of the committee under section 16(1)(e).
The notice charged the appellant with having brought outsiders into the ball where a meeting was being held for the election of the President and Vice President of the Committee and caused disturbance to the meeting that he did not maintain decorum, and t hat he did not obey the rulings of the Chairman of the meeting.
The appellant denied the allegations and averred that it was the Chairman who was actively helping the opposite party and that it was he who brought in outsiders to create confusion and disorder.
The Governor of Punjab passed an order under section 16(1) (e) read with the proviso, removing the appellant from the membership of the Committee and also disqualifying him for a period of three years under section 16(2).
The appellant challenged the order before the High Court and the trial judge held that the allegations against the appellant in the show cause notice, even if true, would not attract section 16(1)(e) of the Act, and, therefore, quashed the order.
The appellate Court, held, after examining the note file produced by the State that the State had considered the explanation offered by the appellant and the other materials before it, and that the State was justified in passing the order.
Dismissing the appeal to this Court, HELD : (1) Section 16(1) of the Act gives power to the State Government to remove any member of the Committee if he is guilty of one or other of the acts mentioned in clauses(a) to (g).
To attract clause (e), the State Government must form an opinion that the appellant had "flagrantly abused his position as a member of the Committee".
The evression 'flagrantly ' means glaringly, notoriously, scandalously; and a position is said to be abused when it is put to a bad use or for a wrong purpose depending upon the circumstances of the case.
When a meeting of the membership of the Committee was being held the appellant had a right to participate in the proceedings as a member of the Committee.
if he had not been a member of the committee he would not be entitled to be present at the time of the meeting.
But he had no business to go outside and bring in hooligans for the purpose of creating confusion and chaos.
The appellant thus flagrantly abused his position as a member of the Committee while participating in the meeting of the Committee, and therefore the State Government was, justified in passing the order.
[100D H] 93 (2) The High Court was justified in holdingthat the State Government had considered the appellant 's representations as also the other relevant materials before it passed the impugned Order.
since there had been a proper consideration of the explanation furnished by the appellant there was no violation of theprinciples of natural justice.
[1104C F] (3) In as much as very severe penal consequences result by removing a person from the membership of a committee and appeal is provided under the Act it is not only desirable but essential that the State Government should indicate its reasons for forming the opinion as required under section 16(1)(e) of the Act.
It is obligatory on the part of the ' State Government to make available to the member concerned the materials available before it and on the basis of which the show cause notice is issued, and it is open to the member concerned, to request the State Government to furish him the materials, so, that, be may love an effective answer to the averments contained in the show cause notice and to the materials on the basis of which it had, been issued.
When such an order is challenged the State must place before the Court the.
necessary materials which were available before it and which were taken info consideration for forming the opinion to, remove the person concerned from membership of 'the committee.
in the present case, however, the appellant had not made a grievance either before the High Court or before this Court that the proceedings initiated against him suffered from the infirmity of not having been made available to him the materials that were before the Government when it passed, the order removing him from the membership of the Committee.
[102F H; 103A E; 104,B C] The averments of the appellant and the Chairman of the meeting raised a disputed question of fact on which Government was not entitled to take a view rejecting the plea of the appellant without having disclosed to him the alleg ations made in the report.
If disputed questions ' of fact arise for the consideration of the Government there is no provision as to how the State has to deal with the matter.
Therefore, suitable provision may be made either in the Act or in the Rules for dealing with such disputed question of fact.
[1O4A B]


judgement:
No. 1704 and 1937 of 1967.
Appeals by special leave from the judgment and order dated ,August 19, 1966 of the Bombay High Court, Nagpur Bench in Special Civil Applications No. 853 and 941 of 1965 respectively.
H. W. Dhabe and A. G. Ratnaparkhi, for the appellants (in both the appeals).
W. section Barlingay and P. C. Bhartari, for respondent No. 2 (in both the appeals).
The Judgment of the Court was delivered by Dua, J.
These two appeals by special leave (C.
As Nos. 1704 and 1937 of 1967) are directed against the, judgment of a Division Bench of the Bombay High Court dated August 19, 1966 ,dismissing four applications under article 227 of the Constitution arising out of orders made by the Authority under the Minimum Wages Act 11 of 1948 (hereinafter called the Act) in respect of claims made by employees of 'the 'City of Nagpur Corporation ' (hereinafter called the Corporation) working in various Departments of the Corporation.
On July 13, 1964 Sitaram Madhorao, Chaukidar and 9 other employees of the Octroi Department of the Corporation filed an application under section 20 of the Act in the Court of Small Causes at Nagpur, which was the Authority.
appointed under the .Act.
The application was presented through the General Secretary of the Nagpur Corporation Employees ' Association which was a registered trade union.
The application is brief and, therefore, we consider it proper to reproduce its material parts in its own words "The applicants above named beg to submit as under (1) That the applicants are employees working in non applicant No. 1, Nagpur Corporation in Department of School & ors.
The Minimum wages notification has been issued in respect of this industry by Government on 21 2 1951 and the minimum rates of wages are fixed 1 12 per day for eight hours.
(2) That the applicants have not been paid overtime wages, for this period though they are entitled to get double the wages as they are required to work beyond prescribed hours and holidays.
163 (3) That the applicants have been required to work overtime for 30, 65, 8 and 51 hours every week during the period from 1 1 1964 to 30 6 1964 and total claim are shown in the annexure.
The total amount claimed is Rs. 8670.18.
(4) That the applicants estimate the value of the relief sought by them of the sum of Rs. 8670.18.
(5) Applicants pray that a direction may be issued under section 3 of the Section 29 for (a) payment of the difference between the wages due according to mini mum rate of wages fixed by job and wages actually paid amount overtime wages Rs. 8670.18.
(B) Compensation amounts to Rs. 100.00.
(6) That demand has been made for this overseer claim from 1 1 1964 to 30 6 1964.
" Earlier on June 26, 1964 T. R. Khante, Time keeper and 13 other employees of the Water Works Department of the Corporation had similarly applied under section 20 of the Act through B. M. Mahale, General Secretary of the Nagpur Corporation Employees ' Association.
This application reads : "The applicants above named bee., to submit as under (1) That the applicants are employees working in non applicant No. 1, Nagpur Corporation in Department of Water Works.
The minimum wages notification has been issued in respect of this industry by Government on 21 2 1951 and the minimum rates of wages are fixed 1 12 per day for eight hours.
(2) That the applicants have not been paid overtime wages for this period though they are entitled to to get double the wages as they are required to work beyond prescribed hours and holidays.
(3) That the applicants have been required to work overtime for 8 hours every week during the period from 1 8 63 to 31 1 64 and the total claim are shown in the annexure.
The total amount claimed is Rs. 1987.48.
(4) That the applicants estimate the value of the relief sought by them of the sum of Rs. 1047.48.
(5) Applicants pray that direction may be issued under section (3) of the section 29 for (a) payment of 164 the difference between the wages due according to the minimum rate of wages fixed by the job and wages actually paid amount overtime wages Rs. 1047.48.
(6) That compensation amounts to Rs. 140.00.
(7) That demand has been made for this claim from 1 8 63 to 31 8 64.
" On November 10, 1964 some preliminary objections raised by the Corporation were disallowed by the Authority and the applications were directed to be tried on the merits.
On February 17, 1965 the Authority made an order on the following four issues which arose out of the claims made by the employees : "1.
Whether the applicants employed as a time keeper, wireman and lineman belong to the category of unskilled workers ? 2.
Whether the applicants who belong to the category of skilled or semi skilled labour can apply under section 20 of the Minimum Wages Act ? 3.
Whether the applicants have worked on weekly days of rest (Sundays) ? (a) If so, whether they are entitled to wages for work done on the weekly days of rest ? 4.
Whether the Chowkidars and Motor drivers have worked in excess of the number of hours constituting a normal working day ? (a) If so, to what wages for overtime work are they entitled?" Under issue No. 1 the wireman was held to be a skilled worker and the time keeper and lineman, semi skilled, disagreeing with their contentions that they were unskilled workers.
Under issue No. 2 the Authority held that the second notification of 1956 only provided for the minimum rates of wages of unskilled labour including casual labour in.
the employment of the City of Nagpur Corporation.
The applicants mentioned in issue No. 2 who had worked on weekly days of rest i.e., Sundays were accordingly held disentitled to claim wages for work done on those days in the absence of any provision made by the State Government under section 13 (1) (c) of the Act.
Rule 25 of the M.P. Minimum Wages Rules was held not to provide for payment for work on a day of rest envisaged by section 13 (1 ) (c) of the Act.
Though in view of this decision under issue No. 2 issue No. 3 was held not to survive, still a decision on issue No. 3 was also recorded, the details of which, 165 are not necessary to mention.
Under issue No. 3 (a), in the absence of a provision by the State Government under section 1 3 (1) (c) of the .Act for payment for work done on weekly days of rest the applicants were held disentiled to claim payment under the Act.
Issue No. 4 and 4(a) were decided against the chowkidars and the motor driver concerned.
All the four applications were accordingly dismissed with costs.
Feeling aggrieved by the order of the Authority four special civil applications were presented in the Bombay High Court, Nagpur Bench, under article 227 of the Constitution.
The High Court disagreed with the view of the Authority on the interpretation of the second notification and held that the second notification was intended to, apply to all employees and was not confined only to unskilled workmen as was the case with the notification of 1951.
It, however, upheld the view of the Authority that ordinary rate of wages contemplated by r. 25 means ordinary minimum rate of wages, considering this view to be in accordance with the view taken by the Bombay High Court in the Union of India vs B. D. Rathi(1).
On behalf of the appellants the only point.canvassed in these two appeals arises out of the rejection of their claim with regard to overtime work done by them and work done by them on weekly rest days.
On behalf of the respondents, however, it was contended that the High Court was wrong in the construction placed by it, on the notification of 1956.
Minimum Wages were fixed by the Government by means of a notification under section 5 of the Act on February 21, 1951.
According to this notification the Government fixed "minimum rates of wages for unskilled labour including casual labour in respect of scheduled employments" mentioned in the schedule in that notification.
The item which concerns us is item No. 2 which reads as "employment under any Local Authority".
Various rates were fixed for certain categories of employees against this item.
This notification so far as relevant reads : "Nagpur, the 21st February, 1951.
No. 848 1758 XXIII of 1950 In exercise of the powers conferred by sub section (2) of section 5 of the (XI of 1948) the State Government are pleased to fix the following minimum rates of wages for unskilled labour including casual labour in respect of the scheduled employments as mentioned in the schedule below, the same having been previously published as inquired by clause (b) of sub section (1) of (1) A.I.R. 1963 Bom.
166 the said section and further to direct that they shall come, into force at once: Schedule of the Minimum rates of Wages Serial No. and name of Schedule employment : Minimum rates of wages for unskilled labour (including casual labour) 2.
Employment under any local authority Re. 12/ per day for adult female labour at all other centres.
Re. 1 / Per day for adult male at Nagpur town and in Bhandara and Balaghat Districts. Re. /14/ in Wardha, Buildara, Akola, Nimar, Hoshangabad and Nagpur districts (including Nagpur town).
/13/ in Jabalpur, Katni, and Sagar towns and places within 10 miles radius of these towns. ' Re. /12/ in Amravati, Yeotamal, Betul and chanda Districts.
In this notification minimum wages in respect of some other categories of employees.
which do not concern us were also fixed.
On February 23, 1956 the Government issued the following notification fixing, revised minimum rates of wages in supersession of those fixed under the notification of 1951 : "No. 566 451 XXIII.
In exercise of the powers conferred by clause (b) of subsection (1) of section 3 read with sub section (2) of section 10 of the (?(I of 1948) and after consulting the Advisory Committee and the Advisory Board as required by sub section (1) of section 5 thereof, the State Government are pleased to revise the minimum rates of wages in respect of the scheduled employment as mentioned in schedule below in supersession of those fixed under this department notification No. 484 1758 XXIII of 1950 dated the 21st February, 1951 and to further direct that the minimum rates of wages so revised shall come into force at once SCHEDULE Name (if scheduled employment: (Employment under any local authority).
Minimum rates of wages : Re.
1/2/ per day for adult male and Rs. /12/ for adult female labour at Nagpur, Jabalpur and Akola.
/14/ per day for adult male and Re.
/9/ for adult female labour in all other centres.
167 The above rates are inclusive of dearness allowance or compensatory cost of living allowance and are subject to reduction on account of concessions in respect of supplies of essential commodities at concession rates supplied by the employer when so authorised under section II of the said Act.
" As observed earlier, the respondents raised the question that.
second notification did not supersede the earlier notification as to take within its fold all employees as held by the High, Court but it was only confined to unskilled labour including casual labour the minimum rates of whose wages were determined under the earlier notification of 1951.
To this aspect we will revert later.
The point strenuously canvassed on behalf of the appellants.
relates to the construction to be placed on r. 25 of the M. P. Minimum Wages Rules, 1951 made under section 30 of the Act.
That, rule provides for extra wages for overtime and reads : "25.
Extra wages for overtime : When a worker works in an employment for more than nine hours on any day or for more than fifty four hours in an week, he: shall, in respect of overtime work, be entitled to wages (a) in the case of employment in agriculture, at one and a half time the ordinary rate of wages ,, (b) in the case of any other scheduled employment, at double the ordinary rate of wages.
Explanation.
The expression 'ordinary rate of wages ' means the basic wage plus such allowances including the cash equivalent of the advantages accruing through the concessional sale to the person employed of food grains and other articles as the person employed is for the time being entitled to but does not include bonus.
(2) A resister showing overtime payments shall be kept in Form IV.
(3) Nothing in this rule shall be deemed to affect the provisions of the .
" It is common ground between the parties that ' Sunday has been declared to be a day of rest and the normal working hours per day are 9 hours a day or 54 hours a week.
According to Shri Dhabe the appellants ' learned counsel the words "at double the ordinary rate of wages" used in cl.
(b) of r. 25 mean double the rate of wages which are actually being paid to the employees concerned and not double the rate of wages fixed under the Act as minimum wages, whereas according to Dr. Barlingay, learned counsel for the respondent, the Act is only concerned with providing 168 for minimum wages and if an employee is being paid more, than minimum wages so provided, the Act does not operate and the employer cannot be compelled to pay higher wages.
The em ployees of the corporation are already being paid much higher wages than those fixed under the Act as minimum wages and, therefore, so contended Dr. Barlingay, there is no legal obligation on the employer to pay higher wages.
The provision requiring payment at double the ordinary rate of wages contained in r. 25, must, according to the respondent 's argument, be read as "the ordinary rate of minimum wages fixed.
" Let us first deal with this question.
The Act which was enacted, in 1948 has its roots in the recommendation adopted by the International Labour Conference in 1928.
The object of the Act as stated in the preamble is to provide for fixing minimum rates of wages in certain employments and this seems to us to be, clearly directed against exploitation of the ignorant, less organised and less privileged members of the society by the capitalist class.
This anxiety on the part of the society for improving the general economic condition of some of its less favoured members appears to be in supersession of the old principle of absolute freedom of 'contract and the doctrine of laissez faire and in recognition of the new principles of social welfare and common good.
Prior to our Constitution this principle was advocated by the movement for liberal employment in civilised countries and the Act which is a pre Constitution measure was the offspring of that movement.
Under our present Constitution the State is now expressly directed to endeavour to secure to all workers (whether agricultural, industrial or otherwise) not only bare physical subsistence but a living wage and conditions of work ensuring a decent standard of life and full enjoyment of leisure.
This Directive Principle of State Policy being conducive to the general interest of the public and, therefore, to the healthy progress of the nation as a whole, merely lays down the foundation for appropriate, social structure in which the labour will find its place of dignity, legitimately due to it in lieu of its contribution to the progress of national economic prosperity.
The Act has since its enactment been amended on several occasions apparently to make it more and more effective in achieving its object which has since secured more firm support from the Constitution.
The present rules under section 30, it may be pointed out, were made in October, 1950 when the State was under a duty to apply the Directive Principles in making laws.
No doubt the Act, according to its preamble, was enacted to provide for fixing minimum rates of wages, but that does not necessarily mean that the language of r. 25 should not be construed according to its ordinary, plain meaning, provided of course, such construction is not inconsistent with the provisions of the Act and there is no other compelling reason for adopting a different construction.
A preamble though a key to open the mind of the Legislature, cannot be 169 used to control or qualify the precise and unambiguous language of the enactment.
It is only in case of doubt or ambiguity that recourse may be had to the, preamble to, ascertain the reason for the enactment in order to discover the true legislative intendment.
By using the phrase "double the ordinary rate of wages" the rule making authority seems to us to have intended that the worker should be the recipient of double the remuneration which he, in fact, ordinarily receives and not double the rate of minimum wages fixed for him under the Act.
Had it been intended to provide for merely double the minimum rate of wages fixed under the Act the rulemaking authority could have so expressed its intention in clear and explicit words like "double the minimum rate of wages fixed under the Act".
This intendment would certainly have been stated in the explanation added to r. 25 (1 ) in which the expression "ordinary rate of wages" has been explained.
The word "ordinary" used in r. 25 reflects the actuality rather than the worker 's minimum entitlement under the Act.
To accept Dr. Barlingay 's suggestion would virtually amount to recasting this phrase in r. 25 for which we find no justification.
This rule calls for practical construction which should.
ensure to the worker an actual increase in the wages which come into his hands for his use and not increase calculated in terms of the amount assured to him as a minimum wage under the Act.
The interpretation suggested on behalf of the respondents would have the effect of depriving most of the workers who are actually getting more than the minimum wages fixed under the Act of the full benefit of the plain language of r. 25 and in case those workers are actually getting more than or equal to double the minimum wages fixed, this provision would be of no benefit at all.
This construction not only creates a mere illusory benefit but would also deprive the workers of all inducement to willingly undertake overtime work with the result that it would to that extent fail to advance and promote the, cause of increased production.
We are, therefore, clearly of the view that r. 25 contemplates for overtime work double the rate of wages which the worker actually receives, including the casual requisites and other advantages mentioned in the explanation.
This rate, in our opinion, is intended to be the minimum rate for wages for overtime work.
The extra strain on the health of the worker for doing overtime work may well have weighed with the rule making authority to assure to the worker as minimum wages double the ordinary wage received by him so as to enable him to maintain proper standard of health and stamina.
Nothing rational or convincing was said at the bar why fixing the minimum wages for overtime work at double the rate of wages actually, received by the workmen should be considered to be outside the purpose and object of the Act.
Keeping in view the overall purpose and object of the Act and viewing it harmoniously with the general scheme of industrial legislation in the country in the background.
of the Directive Principles contained in our.
1208SupCI/72 170 Constitution the minimum rates of wages for overtime work need not as a matter of law be confined to double the minmium wages fixed but may justly be fixed at double the wages ordinarily received by that workmen as a fact.
The Bombay High Court has no doubt held in Union of India vs B. D. Rathi(1) that "or dinary rate of wages" in r. 25 means the minimum rate for normal work fixed under the Act.
The learned Judges sought support for this view from section 14 of the Act and r. 5 of the Railway Servants (Hours of Employment) Rules, 1951.
The workers there were employees of the Central Railway.
With all respect we are unable to agree with the approach of the Bombay High Court.
Section 14 of the Act merely lays down that when the employee, whose minimum rate of wages is fixed by a prescribed wage period, works in excess of that period the employer shall pay him for the period so worked in excess at the overtime rate fixed under the Act.
This section does not militate against the view taken by us.
Nor does a provision like r. 5 of the Railway Rules which merely provides for 54 hours employment in a week on the average in any month go against our view.
The question is not so much of minimum rate as contrasted with the contract rate of wages as it is of how much actual benefit in the form of receipt of wages has been intended to be assured to the workman for doing overtime work so as to provide adequate inducement to them willingly to do overtime work for increasing production in a peaceful atmosphere in the industry.
The problem demands a liberal and rational approach rather than a doctrinaire or technical legalistic approach.
The contract rate is not being touched by holding that r. 25 contemplates double the rate of wages which actually come into the workman 's hands any more than it is touched by fixing the minimum rate of wages under sections 3, 4 and 5 of the Act.
The decision of the Mysore High Court in Municipal Borough, BiJapur vs Gundawan (M.N.) & ors.(2) and of the Madras High Court in Chairman of the Madras Port Trust vs Claims Authority & ors.
(3) also take the same view as the Bombay High Court does.
We need not, therefore, deal with them separately.
Coming now to the notifications, in our view the notification dated February 23, 1956 has to be read in the background of the notification dated February 21, 1951 with the result that the later notification must also be held to be confined to unskilled labour.
It is no doubt true that the notification of 1951 dealt with several categories of employees.
But that in our opinion does not militate against the construction that the.
second notification has only to be adjusted with and fitted into the first notification in so far as it varies or revises some of the rates fixed in the earlier notification without extending its operational boundaries by deleting the word "unskilled" from the expression "unskilled labour".
The (1) A.I.R. 1963 Bom.
(2) A.I.R. 1965 Mys. 317.
(3) A.I.R. 1957 Mad 69 171 High Court was, therefore, not right in holding the second notification to be applicable to all categories of labour.
The result, therefore, is that both the appeals are allowed and the case is sent back to the Authority under the for a fresh decision in accordance with law and in the light of the observations made above.
Dr. Barlingay undoubtedly desired us to go into various claims of the employees but in our view it would be more in the interest of justice that the matter is remitted back to the Authority, for a fresh decision.
The appellants would get their costs in this Court.
S.N. Appeals allowed.

summary/full:
Nine employees of the octroi department, 13 employees of the water works.
department and a time keeper of Nagpur Corporation applied under section 20 of the Minimum Wages Act to the Small Causes Court of Nagpur for overtime wages at the rate of double the wages for the period they worked beyond prescribed hours and holidays.
The authority raised several issues but they were decided against the applicants and their applications were dismissed.
Being aggrieved the said decision, four applications were presented before the High Court under article 227 of the Constitution and the High Court also upheld the view of the authority.
It was contended by the appellants that under Rule 25 of M.P. Minimum Wages Rules, 1,1951, they were entitled to overtime wages at double the ordinary rate of wages for the period they worked beyond prescribed hours and holidays.
For their claims they relied on 2 minimum wages notification one dated 21 2 51 and the other dated 23 2 56.
On behalf of the appellants the only point canvassed before this Court was the rejection of their claim with regard to overtime work done by them and work done on weekly rest days.
The respondent contended that as the employees of the Corporation were paid higher wages than those fixed under the Act as minimum wages, the Act did not operate, and the employer could not be compelled to pay higher wages.
Secondly, the second notification did not supersede the first notification which only applied to unskilled labour as to, cover all employees skilled or unskilled.
Further, the provision inquiring payment at double the ordinary rate of wages contained in Rule 25 must be read as the ordinary rate of minimum wages fixed.
Allowing the appeal, HELD : (i) Rule 25 contemplates overtime work at double the rate of wages, which the worker actually receives, including the casual requisite and other advantages mentioned in the explanation.
By using the phrase "double the ordinary rate of wages", the rule making authority intended that the worker should be the recipient of double the remuneration which he, in fact, ordinarily receives, and not double the rate of minimum wages fixed for him under the Act.
Had it been intended to provide for merely double the minimum rate of wages fixed under the Act, the rule making authority could have so expressed its intention in clear and explicit words.
The word "Ordinary" used in rule 25 reflects the actuality rather than the workers ' minimum entitlement under the Act.
169A D] (ii) The second notification was not applicable to all categories of labour as wrongly held by the High Court.
The second notification has to be read in the background of the first notification with the result that 162 the later notification must also to, be held to be confined to unskilled labour in so far as it varies revises some of the rates fixed in the earlier notification without extending its operational boundaries by deleting the word "unskilled" from the explanation "unskilled labour".
[170G] Union of India v B. D. Rathi, A,.
I. R .
1963, Bom,. 54, referred to and distinguished.