judgement:
Appeal No. 2123 of 1968.
Appeal by special leave from the Award dated March 23, 1968 of the Labour Court, Bangalore in Reference No. 39 of 1967.
M. K. Ramamurthi, B. R. Dolia, section Pappu and Vineet Kumar, for the appellants.
H. R. Gokhale, C. Doraswamy and D. N. Gupta, for respon dent No. 1.
The dispute related to the dismissal by the management of three workmen, Sandhyavoo, G. Prabhakar and M. V. Vasudevan out of the five workmen against whom the management had held a domestic enquiry at which they were found guilty of acts; of misconduct charged against them.
The facts leading to the said dispute and the reference are as follows : On August 24, 1964 the said association handed over to the management a charter of demands.
Negotiations between the parties having failed, the demands were taken before the conciliation officer when the parties arrived at a settlement dated December 23, 1964.
On April 29, 1966, the management issued a notice suspending for a day, i.e., May 4, 1966, one B. G. Shenoy 307 as and by way of penalty.
In consequence of a protest by the association, the said suspension was postponed and on May 10, 1966, the management served a charge sheet on Shenoy and suspended him pending an enquiry.
On May 11, 1966 the association demanded withdrawal of the said suspension and the said charge sheet.
Discussions took place on that day from 9.45 A.M. to 12.30 P.M. between the association and the management and the parties thereafter adjourned at 1 P.M. for lunch having decided to resume the talks at 2.30 P.M.
At 2 P.M. the first shift ended and the workers of the second shift began to come, in.
The workmen of the first shift, however, stayed on and those of the second shift along with the workmen of the general shift joined them and all of them went on strike.
The discussions which were resumed at 2.30 P.M. ended in an agreement at 5 P.M. and the workmen returned to work.
On May 18, 1966 the assistant establishment officer submitted a complaint to the chief personnel officer alleging certain acts of misconduct by a crowd of workmen mentioning therein the names of five of them including the said three workmen.
On May 25, 1966 charge sheets alleging stoppage of work, abandoning the place of work, inciting clerks and officers of G. 2 department to join the said strike, disorderly behaviour including intimidation and assault on one, A. Lakshman Rao, were served upon those five workmen.
Correspondence thereafter ensued between the association and the management wherein the association protested against the management 's decision to adopt disciplinary action against the said five workmen despite the agreement arrived at on May 11, 1966.
Thereafter, a domestic enquiry was held on June 30, 1966 which was completed on July 27, 1966 when the enquiry officer made his report holding the said three workmen, Sandhyavoo, Prabhakar and Vasudevan, guilty of acts of misconduct under standing order 22(2), (3), (13) and (18).
He exonerated the other two workmen except on the charge of participating in the strike and loitering about under clauses (2) and (18) of the said standing order.
On August 12, 1966, the management, agreeing with the report, passed orders of dismissal against the said three workmen which gave rise to the said reference.
On March 23, 1968 the Labour Court gave its award holding that the said enquiry was validly held and that the management were justified in passing the said orders of dismissal.
Mr. Ramamurthi, appearing for the association, challenged the said award on the following grounds : (1) that the said association not having given a call for the said strike, the said charges were misconceived and the orders of dismissal were consequently not sustainable; (2) that the said strike, which was spontaneously staged by the workmen, was not illegal under section 24 of the , nor was it in contravention of any law as 308 required by standing order 22(2) and (3); (3) that the said disciplinary proceedings were in contravention of the agreement arrived at on May 11, 1966, and therefore, the dismissal following such disciplinary proceedings amounted to unfair labour practice; (4) that the orders of dismissal were passed on charges including that of intimidation though the misconduct of intimidation was not found proved by the enquiry officer and hence the said orders were illegal; (5) that to punish only three workmen when a large number of workmen had taken part in staging the strike and in inciting others to join it constituted victimisation; and (6) that the findings of the enquiry officer were based on no evidence or were perverse in that no reasonable body of persons could have arrived at them on the evidence before him.
The argument on which the first contention was based was that the settlement dated December 23, 1964 was arrived at between three parties, the management, the association and the men, and that the association being the union registered under the Trade Unions Act was an entity distinct from the workmen.
Under cl. 5 of the settlement it was the association which was obliged to give four days ' notice if it decided to resort to strike, go slow tactics or other coercive action.
The said clause did not impose any such obligation on the workmen.
The workmen thus having no such obligation and the said strike being a spontaneous one, without any call for it from the association, it could not be said to be in breach of the said settlement, and therefore, would not fall under the mischief of section 23 of the Act, the first condition of which is that to be illegal under section 24 read with section 23 it must be, in breach of a contract.
Standing order 22 requires that participating in a strike would be misconduct if it is in breach of some provision of law.
But as the strike was not in contravention of section 23, it would not constitute misconduct under that standing order.
Therefore, the charges against the said three workmen were misconceived and the orders of dismissal passed against them on the basis that they stood established were bad.
In our view this argument cannot be sustained.
The construction of cl. 5 of the settlement suggested by Mr. Ramamurthi is contrary to (a) the tenor of that settlement, (b) the provisions of the under which a settlement arrived at between an employer and a union representing the employees during conciliation proceedings is binding not only on such union but also the workmen whom it represents and (c) the principles of collective bargaining recognised by industrial law.
The settlement was a package settlement by which the management and the workmen, through their association, arrived at certain terms in the presence of the conciliation officer.
The settlement, besides settling the demands contained in the said charter of demands, sets out the necessity of harmonious relations and of cooperation between the 309 management and the workmen so as to promote higher and better production.
It was to achieve this object that direct action on the part of either of them such as a strike by the workmen and a lockout by the employer without notice was prohibited.
Evidently the provision for four days ' notice before any direct action was taken by either of them was provided for so that during that period if.
there was any grievance it could be ironed out by negotiations.
5 of the settlement falls in two parts : (I) the substantive part, and (2) the corollary thereof.
The first part inter alia provided that neither the association nor the management would resort to any direct action, such as strike, go slow tactics or lock out or any such coercive action without giving to the other a four days ' notice.
The second part provided an undertaking on the part of the association to cooperate with the management, if there was any strike by workmen without any call therefore from the association, if the management were to take disciplinary action against the workmen.
If the construction of cl. 5 suggested by Mr. Ramamurthi were to be accepted it would lead to a surprising result, namely, that though a strike at the instance of the association required four days notice, a strike by the workmen without any call from the association would not require any such notice and that the settlement left complete liberty to the workmen to launch a sudden strike.
Such a construction appears on the very face of it contrary to the object and purpose of the settlement and particularly cl. 5 which envisages a notice period of four days to enable the parties to resolve a dispute before direct action on its account is resorted to by either them.
The suggested construction is also untenable, for surely the association irrespective of the workmen cannot by itself resort.
to any direct action.
How can, for instance, the association resort to go slow tactics without giving a call for it to the workmen ? It is obvious, therefore, that cl. 5 does not contemplate any dichotomy between the association and the workmen as suggested by, Mr. Ramamurthi, besides being repugnant to the principle that a settlement arrived at by the association must be regarded as one made by it in its representative character, and therefore, binding, on the workmen.
Therefore, although the settlement mentions in, cl. 5 the management, workmen and the association, the expression 'workmen ' therein was unnecessary, for, without that expression also it would have been as efficaciously binding on the workmen as.
on the association.
This conclusion is strengthened by the fact that the settlement mentions the management and the association, on behalf of the workmen only as the parties thereto and the signatories thereto also are only the representatives of the two bodies.
None of the workmen, nor any one separately representing them affixed his signature to it.
If a lighting strike without notice is illegal under any provision of law (a question which we shall presently consider standing order 22 would come into operation and starting or joining such a strike and inciting others to L 13 Sup.
C.I,/69 6. 310 join it would amount to misconduct for which disciplinary action by the management would be possible.
The next question is whether the management could validly take disciplinary action against the workmen concerned in respect ,of the said strike.
The recitals of the said settlement show that as a result of the association presenting the said charter of demands negotiations between the management and the association took place on the said demands as also on certain proposals made by the management, that on their failure conciliation proceedings took place in the course of which the parties arrived at the said settlement which, as aforesaid, was signed by the representatives of the management and the association in the presence of the conciliation officer.
The settlement thus was one under section 12(3) of the and rule 59 of the Rules made thereunder by the Government of Mysore.
It was to come into force as from January 1, 1965 and was to remain in force for three years and was thereafter to continue to be in force until its termination by either side.
It is clear from thereof that the object with which it was made was to promote harmonious relations and cooperation between the company, the association and the workmen so that the company may on the one hand be able to achieve increased production and on the other be in a position to afford maximum opportunity for continued employment.
To accomplish these aims it was agreed that the company on its part should be managed on sound and progressive lines and the association and the workmen on their part should combat any wasteful practices adversely affecting workmanship and production and assist the management in apprehending persons responsible for acts such as theft, sabotage and other subversive activities.
As cl.
5 of the settlement itself states it was "in order to ensure continuation of smooth working" that the company and the association agreed that in no case would either of them resort to direct action such as lock outs, strikes, go slow and other coercive action without four days, notice and that should one or more workmen resort to any such direct action without the approval of the association, the association Would cooperate with the company in any disciplinary action which the company would take against such workmen.
Then follows the agreement on the said demands of the workmen, and the proposals made by the management in the details of which it is not necessary to go, and finally, the agreement that the parties would adhere to the code of discipline and the grievance procedure annexed as annexure IV to the settlement.
The said code also inter alia provided that there should be no strike or lock out without notice, that neither party should resort to coercion intimidation, victimisation or go slow tactics, that they would avoid litigation, sit down and stay in strikes and lock outs and would not permit demonstrations which are: not peaceful or rowdyism.
Read 311 in the context of the other provisions of of the settlement of which it is part, cl. 5 was intended, to prohibit (a) direct action without notice by or at the instance of the association, and (b) strikes by workmen themselves without the approval of the association.
The words "in no case" used in the clause emphasise that direct action by either the party without notice should not be re sorted to for any reason whatsoever.
There can be no doubt that the settlement was one as defined by section 2(p) of the and was binding on the workmen under section 18 (3) of the Act until it was validly terminated and was in force when the said strike took place.
The strike was a lightning one, was resorted to without notice and was not at the call of the association and was, therefore, in breach of cl. 5.
Could the management then take disciplinary action against the concerned workmen in respect of such a strike ? Standing order 22 enumerates various acts constituting misconduct.
2, 3, 13 and 18 provide that striking either singly or in combination with others in contravention of the provisions of any Act, inciting any other workmen to strike in contravention of any law, riotous or disorderly behaviour or any act subversive of discipline and ' loitering within the company 's premises while on duty or absence without permission from the appointed place of work constitute misconduct.
The point is whether participation in and incitement to join the said strike were in respect of a strike which was in contravention of any Act or law.
Section 23 provides that no workman employed in an industrial establishment shall go on strike in breach of contract and during the period in which a settlement is in operation, in respect of any of the matters covered by such a settlement.
The prohibition against a workman going on strike thus envisages two conditions; (a) that it is in breach of a contract and (b) that it is during the period in which a settlement is in operation and is in respect of any of the matters covered by such settlement.
The said settlement was a contract between the company and the association representing the workmen and it was in operation on May 11, 1966.
But was it in respect of a matter covered by the settlement ? Under section 24 a strike is illegal if it is commenced in contravention of section 23.
Section 26 inter alia provides that any workman who commences, continues or otherwise acts in furtherance of a strike which is illegal under the Act shall be punished with imprisonment for a term extending to one month or with fine which may extend to Rs. 50 or with both.
Section 27 provides punishment of a person who instigates or incites others to take part in or otherwise acts in furtherance of an illegal strike, The strike envisaged by these two sections is clearly the one which is illegal under section 24 read with section 23.
A strike in breach of a contract during the operation of a settlement and in respect of a matter covered by that settlement falls under section 23 (c).
But whereas section 26 312 punishes a workman for going on an illegal strike or for any act in furtherance of such a strike,, section 29 lays down the penalty for a person, not necessarily a workman, who commits breach of a term of a settlement which is binding under the Act.
It is, therefore, an offence for any person on whom a settlement is binding under the Act to commit a breach thereof and the legislature has viewed it to be a more serious offence, for, it has a higher punishment of imprisonment extending to six months than the punishment for commencing etc.
an illegal strike under section 26.
Thus, commencing, a strike or acting in furtherance of it in breach of a settlement binding on the person who so commences it or acts in its furtherance is an offence punishable under section 29.
It is clear that there is a distinction between a strike in visaged by section 23 (c) in respect of a matter covered by a settlement and a strike in breach of a settlement envisaged by section 29.
That position was conceded by Mr. Gokhale for the management.
But his argument was that the strike in question was, firstly, in respect of a matter covered by the said settlement, namely, its prohibition without notice while that settlement was in force and secondly that it was in breach of that settlement, and consequently, it was illegal both under section 24 and section 29.
This contention does not seem correct, firstly, because though an agreement not to resort to a strike without notice would be the subject matter of a settlement, a strike in contravention of such an agreement is not in respect of any of the matters covered by such settlement.
Secondly, such a construction would mean as if Parliament intended to provide two different penalties, one under section 26 and the other under section 29, for the very same offence, one higher than the other, an intention difficult to attribute.
The strike was in the matter of the suspension of the said Shenoy pending a domestic enquiry against him, a matter which obviously was not one of the matters covered by the said settlement.
It was, therefore, not a strike illegal under section read with section 23(c).
However, the strike was in contravention of cl. 5 of the said settlement and that settlement being binding on the workmen concerned and in operation at the time was punish able under section 29, and therefore, illegal under that section.
The question whether a strike in contravention of a similar clause in a settlement was illegal arose in The Tata Engineering and Locomotive Co. Ltd. vs C. B. Mitter & Anr.
(1) As in cl. 5 of the settlement before us, the settlement there also provided that "in no case" would the parties thereto resort to direct action such as lockouts, strikes, go slow and other direct action without four days ' notice.
The strike in question was commenced in respect of a demand by a workman for a pair of gum boots, a demand (1) C.A.No. 633 of 1963, dec. on April 2,1964.
313 not covered by the settlement.
It was common ground that the strike would not fall within the ambit of section 24 but the controversy was whether it was otherwise illegal, the workmen 's contention being that it was not, as the said clause against.
a strike without notice applied only to one declared for enforcing one or the other demands which formed the subject matter of the settlement and since the strike arose out of a matter not covered by the settlement, that clause was inapplicable.
This Court negatived the conten tion and held that the words "in no case" in that clause meant a strike for whatever reason and though it was conceded that it was not illegal under section 24, it was, nevertheless, held to be illegal not because it was in respect of a matter covered by the said settlement but because it was in contravention of the settlement which was binding on the concerned workmen, which meant that the Court held the strike to be illegal under section 29.
In our view the decision in the present case must be the same.
The strike was illegal not under section 24 but because it was in contravention of the settlement binding on the workmen concerned.
Consequently, standing order 22 would apply and participating in or inciting others to join such a strike would amount to misconduct for which ,the management were entitled to take disciplinary action.
But against that position, the argument was that the agreement dated May 11, 1966 under which the workmen called off the strike also provided that no disciplinary action would be taken against any workmen in respect of the strike on that day and that therefore the proceedings taken against the three workmen in violation of that agreement amounted to unfair labour practice.
The agreement was oral.
According to Bernard, Secretary of the association, the agreement *as that (a) the charges and the suspension order passed against the said Shenoy should be withdrawn (b) the company should pay the wages for the 31 hours period ,of the strike provided the workmen made good the loss of production during that period, and (c) the management would take no action against any one for going on strike.
The evidence of Martin, the company 's technical director, on the other hand, was that the company agreed only not to punish the said Shenoy and to consider paying wages for the hours of the strike.
The Labour Court on this evidence held that the association failed to prove that the management had agreed not to take action against any of the workmen in connection with the strike though it may be that they might have agreed not to victimise any workman for participating in the strike.
In fact, the management did not impose any penalty against any workman for joining the strike, not even against the three concerned workmen.
This finding being purely one of fact and the Labour Court having given cogent reasons for it we would not interfere with it without the utmost reluctance.
We have been taken through the evidence and the correspondence between the 314 parties but we fail to see any error on the part of the Labour Court in reaching that finding.
The next contention was that the orders of dismissal were bad as they took into account the charge of intimidation of the company 's officers although the enquiry officer had found that that charge was not proved.
The charge sheets, exs.
M/4A, M/5A and M/6A against the three workmen alleged in express terms disorderly behaviour and intimidation.
The report of the enquiry officer against the said Vasudevan clearly stated that the enquiry officer accepted the evidence of the management 's witnesses and that on that evidence all the charges against him stood proved.
While summarising those charges, he, no doubt, did not in so many words use the expression "intimidation".
But the evidence which he, as aforesaid, accepted, was that Vasudevan along with other workmen entered the G. 2 department at about 3 P.M. on that day and thumping his hand on the table of the said Lakshman Rao threatened that officer in the following words : "now I am in the forefront of the crowd].
You cannot do anything.
You ask your people to come out and you also come out.
Otherwise you can see what we can do for you now".
The said Lakshman Rao had also deposed that he was surrounded by the workers who started pushing and pulling him.
The evidence of other officers was that as the crowd which forced its way into this department got unruly they were also forced to leave their places of work.
The evidence against Prabhakar was that he too was in the fore front of that crowd which squeezed Lakshman Rao and some members thereof inflicted kicks on him.
Similarly, there was the evidence of one Raja, the assistant personnel officer, and others that Sandhyavoo was one of those in the forefront of that crowd.
According to Raja.
Sandhyavoo tried to lift him from his seat with a view to force him to leave his table and finding that the crowd had become restive he left his place.
Acceptance of this evidence by the enquiry officer must necessarily mean acceptance of the version of these officers that they were intimidated by the crowd which forced its way into their department led by these three workmen.
Though the enquiry officer has not, in so many words, used the expression 'intimidation ' his finding of disorderly behaviour must be held to include acts of intimidation.
Lastly, were the orders of dismissal against the three workmen acts of victimisation on the part of the management when admittedly a large number of workmen had staged the strike and also incited others to join that strike ? The orders against the three workmen being identical in terms we take the orders passed against Vasudevan as a specimen.
That order sets out four acts of misconduct by him; (1) striking or stopping work, (2) inciting, (3) riotous and disorderly behaviour and (4) loitering about in the 315 company 's premises.
Though each one of these acts, according to the order, was misconduct punishable with dismissal, the order states that so far as acts 1 and 4 were concerned, the management.
did not wish to take a serious view of them as a large number of "misguided" workmen had stopped work and left their places of work without permission.
The management, therefore, took action only in respect of acts failing under cls.
3 and 13 of standing.
order 22 evidently for the reason that they considered incitement, intimidation and riotous and disorderly behaviour as "very grave in nature".
We do not think that in taking this view the, management discriminated against the three workmen concerned as against.
the rest or that they dismissed them with the object of victimising.
The evidence in the enquiry clearly disclosed that when the crowd forced its way into the G. 2 department it was led by these three workmen, all of whom were in the forefront thereof and two of them had defiantly forced the officers to leave their tables.
of them had threatened as to what he and the others who were behind him in that crowd could do to him if he did not comply and the other had tried even to lift another officer from his chair to compel him to leave his place of work.
In these circumstances.
the management cannot be blamed if they took a serious view of these acts of the three workmen concerned, who had taken up their position in the forefront of that crowd, a position indicative of their having led, that crowd into that department and having, acted as its leaders.
An act of discrimination can only occur if amongst those equally situated an unequal treatment is meted out to one or more of them.
Having been found to be the leader& of the crowd, action taken against them cannot on any principle be regarded as discriminatory or unequal.
The decision in Burn & Co. Ltd. vs Workmen(1) relied on by Mr. Ramamurthi has no, bearing on the facts of this case and cannot assist him.
Once a misconduct graver than that of the rest was found proved against these three workmen and for which the punishment is dismissal, victimisation cannot legitimately be attributed to the management.
It is relevant in this connection to remember that so far as their participation in the strike and loitering about were concerned, no,, action was taken against these three workmen on the ground that those acts were common with those of the rest of the workmen.
In view of these facts it is not understandable how the impugned ' orders of dismissal could be characterised as acts of victimisation.
It is also not possible to say that the finding of incitement and disorderly behaviour of these three workmen was perverse or such, as no reasonable body of persons could come to on the evidence on record on the ground only that the others also were guilty of those acts.
For, there would be nothing wrong if those who misled or misguided other workmen were selected for disciplinary action (1) and not the victims of their persuasion, who in following their A precept did similar acts.
In our judgment the orders of dismissal, based on the findings in the domestic enquiry which did not suffer from any infirmity, could not be successfully impeached, and therefore, the Labour Court was right in upholding them.
The appeal fails and is dismissed.
There will be no order as to costs.
Appeal dismissed.

summary/full:
There was settlement entered into on December 23, 1964 between the Motor Industries Company Employees Association and the management of the company.
Under el.
5 of the agreement it was agreed inter alia that the workmen will not go on strike without at least four days ' notice.
How,ever on May 11, 1966 the workmen went on strike without notice as a protest against the suspension of one of the workmen.
Later in the day after discussions the workmen resumed work.
On May 18, 1966 the establishment officer submitted a complaint to the Chief Personnel Officer as a result of which charge sheets alleging stoppage of work, abandoning place of work and inciting clerks and officers to join the strike were served upon five of the workmen.
Against one of them the charge of disorderly conduct and intimidation was also made.
The enquiry officer held three of the charged workmen guilty of acts of misconduct under standing order 22(2), (3), (13) and (18).
The management passed orders of ,dismissal against the three workmen.
The industrial dispute thus arising was referred to, the Labour Court which held that the said enquiry was validly held and that the management were justified in passing the orders of dismissal.
In appeal by special leave the following contentions were raised on behalf of the workmen appellants : (i) that the said association not having given a call for the said strike the said charges were misconceived and the orders of dismissal were consequently not sustainable; (ii) that the said strike, which was spontaneously staged by the workmen, was not illegal under section 24 of the Industrial Disputes Act nor was it in contravention of any law as required by standing order 22(2) and (3); (iii) that the said disciplinary proceedings were in contravention of the agreement arrived at on May 11, 1966, and therefore, the dismissal following such disciplinary proceedings amounted to unfair labour practice; (iv) that the orders of dismissal were passed on charges including that of intimidation though the misconduct of intimidation was not found by the enquiry officer and hence the said orders were illegal; (v) that to punish only three workmen when a large number of workmen had taken part in staging the strike and in inciting others to join it constituted victimisation, (vi) that the finding of the enquiry officer were based on no evidence or were perverse in that no reasonable body of persons could have arrived at them on the evidence before him.
HELD : (i) Clause 5 of the settlement dated December 23, 1964 did not contemplate any dichotomy between the association and the workmen 305 as suggested on behalf of the appellants.
Such an interpretation is repugnant to the principle that a settlement once arrived at by the association must be regarded as one made by it in its representative character, and therefore binding on the workmen.
Therefore, although the settlement mentioned in cl. 5 the management, workmen and the association, the expression 'workmen ' therein was unnecessary, for without that expression also it would have been as efficaciously binding on the workmen as on the association.
This conclusion was strengthened by the fact that the settlement mentioned the management and the association on behalf of the workmen only as the parties thereto and the signatories thereto also were only the representatives of the two bodies.
[309 F H] Further, the appellants ' contention if accepted would lead to a surprising result, namely, that though a strike at the instance of the association required four days ' notice, a notice by the workmen without any call from the association would not require any such notice and that the settlement left complete liberty to the workmen to launch a sudden strike.
The first contention on behalf of the workmen had therefore to be rejected.
[309 D] (ii) Read in the context of the other provisions of Part I of the settlement of which it was part, cl. 5 was intended to prohibit (a) direct action without notice by or at the instance of the association and (b) strikes by workmen themselves without the approval of the association.
The words 'in no case ' used in the clause emphasized that direct action by either party without notice should not be resorted to 'for any reason whatsoever.
There could be no doubt that the settlement was one as defined by section 2(p) of the Industrial Disputes Act and was binding on the workmen under section 18(3) of the Act until it was validly terminated and was in force when the said strike took place.
The strike was a lightning one, was resorted to without notice and though it was not at the call of the association, it was in breach of cl. 5.
[311 A C] The strike was in the matter of suspension of one of the workmen pending a domestic enquiry against him, a matter which obviously was not one of the matters covered by the said settlement.
It was, therefore, not a strike illegal under section 24 read with section 23(c).
However being in con travention of cl. 5 of the said settlement and that settlement being binding on the workmen concerned and in, operation at the time was punishable under section 29 and therefore.
illegal under that section.
[312 F] The strike being illegal, standing order 22 would apply and participating in or inciting others to join such a strike would amount to misconduct for which the management was entitled to take disciplinary action.
The second contention on behalf of the workmen must also, therefore, fail.
[313 D] The Tata Engineering & Locomotive Co. Ltd. vs C. B. Mitter, C.A. No. 633/1963 dt.
2 4 1964, referred to.
(iii) The Labour Court on the evidence held that the association failed to prove that the management had agreed in order to end the strike on May 11, 1966, not to take action against any of the workmen in connection with the strike, though it may be that they might have agreed not to victimise any workmen for participating in the strike.
In fact the management did not impose any penalty against any workman for joining the strike, not even against the three concerned workmen.
This finding being purely one of fact and the Labour Court having given cogent reasons for it this Court would not interfere with it.
The contention alleging unfair labour practice must also therefore fail.
[313 G H] 306 (iv) Although in his report the enquiry officer did not use the expression 'intimidation ' the evidence which he accepted was that the workman in question thumped his hand on the table and used threatening words to .an officer of the company.
The Enquiry officer 's finding of disorderly behaviour must therefore be held to include acts of intimidation.
Accordingly the contention that the orders of dismissal were bad as they took to account the charge of intimidation of the company 's officers although the enquiry officer had found that charge was not proved, must be rejected.
13 14 B G] (V) The evidence showed that the three workmen concerned were in the forefront of the crowd which entered the premises of the company and committed and incited disorderly behaviour.
In taking action against them and not the rest of the workmen there was no discrimination and no victimisation.
[315 C] Burn & Co. Ltd. vs Workmen, , distinguished.
(vi) There was no substance in the contention that the findings of the enquiry officer were based on no evidence or were perverse.


judgement:
Appeal No: 961 of 1966.
Appeal by special leave from the judgment and order dated March 18, 1965 of the Gujarat High Court in Special Civil Application No. 580 of 1961.
252 R. H. Dhebar, section K. Dholakia and section P. Nayar, for the appellant.
G. L. Sanghi and A. G. Ratnaparkhi, for respondent No. 1.
M. section K. Sastri, R. H. Dhebar and R. N. Sachthey, for respondent No. 2.
The Judgment of the Court was delivered by Grover, J.
This is an appeal by special leave against a judgment of the Gujarat High Court.
The sole point for determination is whether omission to supply to the first respondent a copy of the recommendations of the Enquiry Officer in the matter of punishment, although a copy of his report containing his findings on the various charges was supplied, amounted to a failure to provide reasonable opportunity of making a representation against the penalty proposed within the meaning of article 311(2) of the Constitution.
The first respondent joined the Baroda State Service in 1937.
He was absorbed as a Sales Tax Officer, Class III in the former State of Bombay after merger.
In December 1962 he was served with a charge sheet containing allegations of attempt to obtain illegal gratification from certain cloth dealers.
A departmental enquiry was held and on March 15, 1964 he was dismissed from service.
He challenged the order of dismissal by means of a civil suit.
In May 1958 the City Civil Court decreed the suit holding that the order of dismissal was illegal.
He was reinstated with effect from October 10, 1958.
He was, however, suspended with immediate effect as a fresh enquiry was proposed to be held against him under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules.
A fresh charge sheet was served on him containing the same allegations as on the previous occasion.
In December 1959 a notice was served on him by the Government calling upon him to show cause why punishment of removal should not be imposed on him.
Along with the show cause notice the report of the Enquiry Officer containing his findings was sent to him.
The Enquiry Officer had also made certain recommendations regarding the punishment which in his opinion should be inflicted on the first respondent.
No copy of these recommendations, however, was furnished to him.
In March 1960 it was proposed that the first respondent be allocated to the State of Gujarat in view of the bifurcation of the erstwhile State of Bombay.
In September 1960 he was removed from service by an order passed by the State Government.
The first respondent then filed a petition under article 226 of the Constitution challenging the order of removal.
One of the points which was raised before the High Court was that the failure to send a copy of the report of the Enquiry 253 Officer containing his recommendations in the matter of punishment vitiated the proceedings.
The High Court expressed the view that since the recommendations were a part of the appropriate material for the consideration of the Government in the matter of imposition of punishment on the first respondent, he was entitled to a copy of those recommendations at the time when he was called upon to show cause.
It was consequently hold that the proceedings were vitiated from the stage of the show cause notice relating to punishment.
The order of removal was set aside but it was made clear that the Government would be at liberty to issue a fresh show cause notice regarding the proposed punishment and to take appropriate proceedings from that stage onwards, if it chose to do so.
The State has filed the present appeal.
Learned counsel for the State urged that the Enquiry Officer was not required to make any recommendation about the punishment 'which was to be imposed on the first respondent on the charges against him which had been found to have been proved.
It was pointed out that the sole duty of the Enquiry Officer was to give his conclusions or findings on the charges which he was called upon to enquire into and the recommendations which he made in the matter of punishment were wholly redundant and irrelevant.
For that reason it was not at all necessary that the first respondent should have been supplied a copy of the recommendations relating to punishment.
In this connection reference has been made to the Bombay Civil Services Conduct, Discipline and Appeal Rules wherein the procedure has been laid down when an order of dismissal, removal or reduction in rank has to be passed on a member of the service.
According to the Rule the proceedings shall contain sufficient record of the evidence and a statement of the findings and the grounds thereof.
There are similar provisions in Rule 55 of the Civil Services (Classification, Control and Appeal) Rules.
In Union of India vs H. C. Goel(1).
It has been observed that unless the statutory rules or the specific order under which an officer is appointed to hold an inquiry so requires the Enquiry Officer need not make any recommendations as to the punishment which may be imposed on the delinquent officer in case the charges framed against him are held proved at the enquiry; if however, the Enquiry Officer makes any recommendations the said recommendations, like his findings on the merits, are intended merely to supply appropriate material for the consideration of the Government.
Neither the findings, nor the recommendations are binding on the Government.
Now although it is correct that the Enquiry Officer is under no obligation or duty to make any (1) ; 254 recommendations in the matter of punishment to be imposed on the servant against whom the departmental enquiry is held, and his function merely is to conduct the enquiry in accordance with law and to submit the record along with his findings or conclusions on the various charges which have been preferred against the delinquent servant.
But if the Enquiry Officer proceeds to recommend that a particular penalty or punishment should be imposed in the light of his findings 'or conclusions the question is whether the officer concerned should be informed about his recommendations.
In other words since such recommendations form part of the record and constitute appropriate material for consideration of the Government it would be essential that that material should not be withheld from him so that he could, while showing cause against the proposed, punishment, make a proper representation.
The entire object of supplying a copy of the report of the Enquiry Officer is to enable the delinquent officer to satisfy the punishing authority that he is innocent of the charges framed against him and that even if the charges are held to have been proved the punishment proposed to be inflicted is unduly severe.
If the Enquiry Officer has also made recommendations in the matter of punishment that is likely to affect the mind of the punishing authority even with regard to penalty or punishment to be imposed on such officer.
The requirement of a reasonable opportunity, therefore, would not be satisfied unless the entire report of the Enquiry Officer including his views in the matter of punishment are disclosed to the delinquent servant.
We have no manner of doubt that the decision of the High Court must be upheld in the above view of the matter.
The, appeal fails and it is dismissed with costs.

dataset_name: IN-Abs

summary/full:
As there was omission to supply to the first respondent a copy of the recommendations of the Enquiry officer in the matter of punishment (although a copy of his report containing his findings on various charges was supplied) the first respondent filed a writ petition in the High Court challenging the order of the State Government removing him from its service.
The first respondent contended that the omission amounted to failure to provide reasonable opportunity of making representation against the penalty proposed within the meaning of article 311(2) of the Constitu tion.
The High Court held that proceedings were vitiated from the stage of the show cause notice relating to punishment, and set aside the order of removal, but liberty was given to the State Government to issue fresh show cause notice regarding the proposed punishment.
Dismissing the State 's appeal, this Court; HELD : The requirement of a reasonable opportunity could not be satisfied unless the entire report of the Enquiry Officer including his views in the matter of punishment were disclosed to the delinquent servant.
[254 E] The Enquiry Officer is under no obligation or duly to make any recommendations in the matter of punishment to be imposed on the servant against whom the departmental enquiry is held, and his function merely is to conduct the enquiry in accordance with law and to submit the record along with his findings or conclusions on the delinquent servant.
But if the Enquiry Officer has,, also made recommendations in the matter of punishment that is likely to, affect the mind of the punishing authority with regard to penalty or punishment to be imposed on such officer, it must be disclosed to the delinquent officer.
Since such recommendations form part of the record and constitute appropriate material for consideration of the Government it would be essential that that material should not be withheld from him so that he could, while showing cause against the proposed punishment, make, a proper representation.
The entire object of supplying a copy of the report of the Enquiry Officer is to enable the delinquent officer to satisfy the punishing authority that he is innocent of the charges framed against him and that even if the charges 'are held to have been proved the punishment proposed to be inflicted is unduly severe.
[253 H 254 D] Union of India vs H.C. Goel, ; , referred to.


judgement:
Appeal No. 870 of 1966.
Appeal by special leave from the judgment and order dated June 14, 1965 of the Bombay High Court in Special Civil Application No. 371 of 1965.
section section Shukla, for the appellant.
M. C. Bhandare, K. Rajendra Chaudhuri and K. R. Chaudhuri, for the respondent.
The Judgment of the Court was delivered by Grover, J.
This is an appeal by special leave from a judg ment of the division bench of the Bombay High Court.
The only question for decision is whether the High Court could interfere under articles 226 & 227 of the Constitution with the order of the appellate court in proceedings under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, hereinafter called the "Act", when a petition for revision under section 115, Civil procedure Code, against the same order had been previously dismissed by a single Judge of that court.
The appellant is the owner of a house in Poona.
The res pondent, who was a teacher, was the tenant of a block of four rooms on the first floor of the house.
In 1958 he was transferred to another town Wai where he was allotted suitable residential accommodation.
His son, however, stayed on in Poona as he was studying there.
The appellant filed a suit in the court of Judge, Small Causes, under the provisions of the Act for possession of the suit premises, inter alia, on the ground that the respondent had acquired suitable accommodation elsewhere.
The position taken up by the respondent was that his son was required to stay on in Poona and for that reason it could not said that the had acquired suitable residence at Wai.
Moreover he had gone away from Poona only temporarily and on his return the pre mises would be required for his own use.
The trial court held that only a part of the premises which were required by the son should be vacated.
It granted a decree for possession of two out of four rooms and directed proportionate reduction of the rent.
Both sides filed appeals in the court of the District Judge.
The Extra Assistant Judge who disposed them of was of the view that the court was not empowered to bifurcate the premises.
It was either suitable for the whole family or it was not suitable.
But 324 he affirmed the decree on the ground that the order of the trial court was an equitable one.
The respondent preferred a petition for revision under section 1 15 of the Code of Civil Procedure before the High Court.
A learned Single Judge who heard the petition dismissed it as he was not satisfied that the appellate court had acted in exercise of its jurisdiction illegally or with material irregularity.
The respondent moved a petition under articles 226 and 227 of the Constitution challenging the same order of the appellate court.
Following a decision of a full bench in K. B. Sipahi malani vs Fidahussein Vallibhoy(1) the division bench which heard the writ petition held that in spite of the dismissal of the petition by the learned Single Judge there could be interference under articles 226 and 227 of the Constitution on a proper cast being made out.
After going into the merits the bench expressed the view that the respondent had not acquired an alternative suit able residence.
The courts below were therefore,.
wrong, in coming to the contrary conclusion.
As section 13 (I) (1) of the Act had been misconstrued and the error was apparent on the record the orders of the courts below were set aside.
Now as is) well known section II 5 of the Civil Procedure Code empowers the High Court to call for the record of any cast which has been decided by any court subordinate to it and in which no appeal lies to it.
It can interfere if the subordinate court appears to have exercised the jurisdiction not vested in it by law or to have failed to exercise the jurisdiction so vested on to have acted in the exercise of its jurisdiction legally or with material illegality.
The limits of the jurisdiction of the High Court under this section are well defined by a long course of judicial decisions.
If the revisional jurisdiction is invoked and both parties are heard and an order is made the question is whether the orders of the subordinate court has become merged in the order of the High Court.
If it has got merged and the order is only of the High Court, the order of the subordinate court cannot be challenged or attacked by another set of proceedings in the High Court, namely, by means of a petition under article 226 or 227 of the Constitution.
It is only if by dismissal of the revision petition the order of the subordinate court has not become merged in that of the High Court that it may be open to party to invoke the extraordinary writ jurisdiction of that court.
There again the question will arise whether it would be right and proper for the High Court to interfere with an order of a subordinate court in a writ petition when a petition for revision under section 115, C.P.C., against the same order has been dismissed.
Such a consideration will also enter into the exercise of discretion in a petition under Aft.
226 or 227, (1) 58 B.L.R. 344, 325 The Bombay High Court in K. B. Sipahimalani 's (1) case made a distinction between an appellate jurisdiction and a revisional jurisdiction.
A right of appeal is a vested right and an appeal is a continuation or a rehearing of the suit.
A revision, however, is not a continuation or a rehearing of the suit; nor is it obligatory upon the revisional court to interfere with the order even though the order may be improper or illegal.
If the revisional court interferes the order of the lower court does not merge in the order passed by a revisional court but the order of the revisional court simply sets aside or modifies the order of the lower court.
it was this argument which mainly prevailed before the Bombay bench.
It would appear that this Court has taken a view which runs counter to that of the Bombay High Court.
Although the case of Madan Lal Rungta vs Secy.
to the Government of Orissa(2) was not one which had been decided under section 115 of the Civil Procedure Code but the ratio of that decision is apposite.
The State Government of Orissa a rejected the application of the appellant there who had applied for grant of a mineral lease.
He made in application for review to the Central Government under Rule 57 of the Mineral Concession Rules which was rejected.
He moved the High Court under article 226 of the Constitution which was also dismissed.
The appellant came up by special leave to this Court.
His main contention was that the Central Government had merely dismissed the review petition and the effective order rejecting his application for the mining lease was that of the State Government.
The High Court, thus, had jurisdiction to grant a writ under article 226.
This contention was negatived and it was held that the High Court was right in taking the view that it had no jurisdiction to issue a writ as the final order was that of the Central Government which was not within its territorial jurisdiction.
The ratio of this decision is that it was the order of the Central Government dismissing the review peti tion which was the final order into which the order of the State Government had merged.
It would appear that their lordships of the Privy Council regarded the revisional jurisdiction to be a part and parcel of the appellate jurisdiction of the High Court.
This is what was said in Nath Dey vs Suresh Chandra Dey(3).
"There is no definition of appeal in the Code of Civil Procedure, but their Lordship have no doubt that any application by a party to an Appellate Court, asking it to set aside or revise a decision of a subordinate Court, is an appeal within the ordinary acceptation of the term. " (1) 58 B.L.R. 344.
(2) [1962] 3 Supp.
S.C.R. 906.
(3) 591.A.283, 287.
L13Sup.
CI/69 7 326 Similarly in Raja of Ramnad vs Kamid Rowthen & Ors.
(1) a civil revision petition was considered to be an appropriate form of appeal from the judgment in a suit of small causes nature.
A full bench of the Madras High Court in P. P. P. Chidambara Nadar vs C. P. A. Rama Nadar & Ors.
(2) had to decide whether with reference to article 182(2) of the Limitation Act, 1908 the term "appeal" was used in a restrictive sense so as to exclude revision petitions and the expression "appellate court" was to be confined to a court exercising appellate, as opposed to, revisional powers.
After an exhaustive examination of the case law in cluding the decisions of the Privy Council mentioned above the full bench expressed the view that article 182(2) applied to civil revisions as well and not only to appeals in the narrow sense of that term as used in the Civil Procedure Code.
In Secretary of State for India in Council vs British India Steam Navigation Company(3) and order passed by the High Court in exercise of its revisional jurisdiction under section 115, Code of Civil Procedure, was held to be an order made or passed in appeal within the meaning, of section 39 of the Letters Patent, Mookerji, J., who delivered the judgment of the division bench referred to the observations of Lord Westbury in Attorney General vs Sillem(4) and of Subramania Ayyar, J. in Chappan vs Moidin(5) on the true nature of the right of appeal.
Such a right was one of entering a superior Court and invoking its aid and interposition to redress the error of the court below.
Two things which were required to constitute appellate jurisdiction were the existence of the relation of superior and inferior Court and the power on the part of the former to review decisions of the latter.
In the well known work of Story on Constitution (of United States) vol.
2, article 1761, it is stated that the essential criterion of appellate jurisdiction is that it revises and corrects the proceedings in a cause already instituted and does not create that cause.
The appellate jurisdiction may be exercised in a variety of forms and, indeed, in any form in which the legislature may choose to prescribe.
According to article 1762 the most usual modes of exercising appellate jurisdiction, at least those which are most known in the United States, are by a writ of error, or by an appeal, or, by some process of removal of a suit from an inferior tribunal.
An appeal is a process of civil law origin and removes a cause, entirely subjecting the fact as well as the law, to a review and a retrial '.
A writ of error is a process of common law origin, and it removes nothing for re examination but the law.
The former mode is (1)53 I.A. 74.
(2) A.I.R. 1937 Mad.
(3) 13 C.L.J. 90.
(4) ; 327 usually adopted in cases of equity and admiralty jurisdiction; the latter, in suits at common law tried by a jury.
Now when the aid of the High Court is invoked on the revi sional side it is done because it is a superior court and it can interfere for the purpose of rectifying the error of the court below.
Section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior court.
It is only one of the modes of exercising power conferred by the Statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense.
We do not, therefore, consider that the principle of merger of orders of inferior Courts in those of superior Courts would be affected or would become inapplicable by making a distinction between a petition for revision and an appeal.
It may be useful to refer to certain other decisions which by analogy can be of some assistance in deciding the point before us.
In U. J. section Chopra vs State of Bombay(1) the principal of merger was considered with reference to section 439 of the Criminal Procedure Code which confers revisional jurisdiction on the High Court.
In the majority judgment it was held, inter alia, that a judgment pronounced by the High Court in the exercise of its appellate or revisional jurisdiction after issue of a notice and a full hearing, in the presence of both the parties would replace the judgment of the lower court thus constituting the judgment of the High Court the only final judgment to be executed in accordance with law by the court below.
In Chandi Prasad Chokhani vs The State of Bihar, (2) it was said that save in exceptional and special circumstances this Court would not exercise its power under article 136 in such a way As to bypass the High Court and ignore the latter '& decision which had become final and binding by entertaining an appeal directly from orders of a Tribunal.
Such exercise of ' power would be particularly inadvisable in a case where the result might lead to a conflict of decisions of two courts of competent _jurisdiction.
In our opinion the course which was followed by the High Court, in the present case, is certainly one which leads to a conflict of 'decisions of the same court.
Even on the assumption that the order of the appellate court had not merged in the order of the single Judge who had dis posed of the revision petition we are of the view that a writ petition ought not to have been entertained by the High Court when the respondent bad already chosen the remedy under section 115 of (1) ; (2) ; 328 the Code of Civil Procedure.
If there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate court.
The refusal to gray relief in such circumstances would be in consonance with the anxiety of the court to prevent abuse of process as also to respect and accord finality to its own decisions.
In the result the appeal is allowed and the judgment of the division bench of the High Court is hereby set aside.
The appellant shall be entitled to costs in this Court.
Y.P. Appeal allowed.

summary/full:
Against the order of an appellate court, the respondent filed a revision under section 115 of the Code of Civil Procedure.
The Single Judge of the High Court dismissed the revision.
Thereupon the respondent moved a petition under articles 226 and 227 of the Constitution challenging the same order of the appellate court.
The High Court held that in spite of the dismissal of the revision petition, it could interfere under articles 226 and 227 of the Constitution on a proper case being made out; and after going into the merits of the case, it granted relief to the respondent.
In appeal to this Court, the appellant contended that the High Court could ,not interfere under articles 226 and 227.
Allowing the appeal, this Court, HELD : Even on the assumption that the order of the appellate court .had not merged in the order of the Single Judge who had disposed of the revision petition a writ petition ought not to have been entertained by the High Court when the respondent had already chosen the remedy under section 115 of the Code of Civil Procedure.
If there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate court.
The refusal to grant relief in such circumstances would be in consonance with the anxiety of the court to prevent abuse of process as also to respect and accord finality to its own 'decisions.
[327 H] When the aid of the High Court is invoked on the revisional side it is done because it is a superior court and it can interfere for the purpose of rectifying the error of the court below.
Section 115 of the Code of Civil 'Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior court.
It is only one of the modes of exercising power conferred by the Statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense.
The principle of merger of orders of inferior courts in those superior courts would not be affected or would not become inapplicable by making a distinction between a petition for revision and an appeal.
[327 B] Madan Lal Rungta vs Secy.
to the Government of Orissa, [1962] 3 Supp.
S.C.R. 906, Nagendra Nath Dey vs Suresh Chandra Dey.
59 I.A. 283, 287; Raja of Ramnad vs Kamid Rowthen & Ors.
53 I.A. 74, P. P. P. Chidambara Nadar vs C.P.A. Rama Nadar & Ors.
A.I.R. 1937 Mad.
385, Secretary of State for India in Council vs British India Steam Navigation Co. 13 C.L.J. 90, Attorney General vs Sillem, ; , Chappan vs Moidin, , 80, U. J. section Chopra vs State 323 of Bombay; , and Chandi Prasad Chokhani vs state of Bihar; , , referred to.
K. B. Sipahimalani vs Fidahussein Yallibhoy, 58 B.L.R. 344, disapproved.


judgement:
254 of 1954.
Under article 32 of the Constitution for the enforcement of fundamental rights.
The petitioner in Person.
M. C. Setalvad, Attorney General for India, (G. N. Joshi and P.G. Gokhale, with him) for the respondents.
The Judgment of the Court was delivered by BOSE J.
This is a petition under article 32 of Constitution and raises the same question on the merits as in the connected summons case in which we have just delivered judgment.
The facts will be found there.
In the present matter it is enough to say that no question arises about the breach of a fundamental right.
But as a matter touching the jurisdiction of the Bar Council Tribunal and that of the Bombay High Court was argued, we will deal with it shortly.
Mr. G 's first objection is that the proceedings before the Tribunal were ultra vires because there was no proper order.
of appointment.
At a very early stage he applied to the Registrar and also to the Prothonotary for a copy of the order of the Chief Justice constituting 502 the Tribunal.
He was told by the Prothonotary that the order was oral.
Mr. ' G ', put in two written statements before the Tribunal and did not challenge this statement of fact in either.
He contented himself with saying that the 'order was not "judicial" and so was not valid.
He took up the same attitude in the High Court.
The learned Judges said "The record clearly shows that when it came to, the notice of this Court it was decided to refer this case to the Bar Council under section 10(2) and accordingly a Tribunal was appointed under section 11(1) by the learned Chief justice of this Court.
" In his petition to this Court he did not challenge this statement of fact but again confined his attack to the question of the validity of the order.
It is evident from all this that the fact that an oral order was made was not challenged.
We cannot allow Mr. 'G ' to go behind that.
The next question is whether an oral order is enough: Bar Councils Act does not lay down any procedure.
All it says is Section 10(2): ". . . the High Court may of its own motion so refer any case in which it has otherwise reason to believe that any such advocate has been so guilty." and section 11 (2) says "The Tribunal shall consist of not less than three. . members of the Bar Council appointed for the purpose of the inquiry by the Chief Justice.
" We agree it is necessary that there should be some record of the order on the files but, in our opinion, the order itself need not be a written one; it can be an oral order given to a proper officer of the Court.
In the present case, the letter No. G 1003 dated 29th April, 1953, of the Prothonotary to the Registrar and the letter No. E. 41 09/53 dated the 1st May, 1953, of the Registrar to the Bar Council (office copies of which were retained on the files) are a sufficient record of the making of the order.
Mr. 'G ' was supplied with copies 503 of those letters and so was aware of the fact that orders had been issued.
As a matter of fact, we have seen the originals of the High Court 's office files and find that the names of the three members of the Tribunal are in the Chief Justice 's handwriting with his initials underneath.
That is an additional record of the making of the order.
We hold that an order recorded in the, manner set out above is sufficient for the purposes of sections 10(2) and 11(2) of the Bar Councils Act and hold that the Tribunal was validly appointed.
Mr. G 's next point is that there was no "complaint" to the High Court and so it had no jurisdiction to refer the matter to the Tribunal.
This ignores the fact that the High Court can refer a matter of this kind "of its own motion" under section 10(2) of the Bar Councils Act.
We have dealt with the merits in the connected case.
This petition is dismissed but, here again, we make no order about costs.
Petition dismissed.

summary/full:
The order under section 10(2) of the , given to a proper officer of the Court may be an oral order and need not be a written one.
The High Court can under section 10(2) refer a case on its own motion.


judgement:
Appeal No. 409 of 1966.
Appeal by special leave from the judgment and order dated July 5, 1963, of the Gujarat High Court in Special Civil Application No. 827 of 1961.
R. Gopalakrishnan, for the appellant.
G. L. Sanghi, section K. Dholakia and R. N. Sachthey, for the respondent.
This is an appeal by special leave from a judgment of the Gujarat High Court dismissing a petition under L83Sup.
CI/69 2 246 article 226 of the Constitution by which the order, retiring the appellant from service before he had attained the age, of 55 years, had been challenged.
The appellant had joined the service of the erstwhile State of Junagadh on August 1, 1934.
That State merged into the State of Saurashtra on January 20, 1949.
The appellant continued to remain in the service of that State having been confirmed as an Executive Engineer on September 24, 1956.
On the merger of Saurashtra in the new billingual State of Bombay on November 1, 1956, the appellant was absorbed in the service of the said State.
On the bifurcation of the State of Bombay on May 1, 1960, he was assigned to, the State of Gujarat and was absorbed as a permanent Executive Engineer there.
On October 12, 1961 the State of Gujarat made an order retiring the appellant from the service with effect from January 12, 1962.
On that date he had not attained the age of 55 years but he was about 53 years old.
This, order was made 'in exercise of the powers conferred by Rule 161 of the Bombay Civil Service Rules, 1959.
The order of retirement was challenged by the appellant by means of a writ petition which was dismissed.
It is common ground that when the appellant was in the ,service of the erstwhile State of Junagadh his conditions of :service were governed by the Junagadh State Pension and Parwashi Rules which had been made by the ruler of the State who exercised sovereign legislative powers.
According to those rules the age of superannuation was 60 years.
Before the inclusion of the Junagadh State in the State of Saurashtra the Rajpramukh had promulgated an Ordinance called the Saurashtra State Regulation of Government Ordinance 1948.
By section 4 of that Ordinance all the laws in force in the covenanting States prior to their integration were continued in force in the State of Saurashtra until repealed or amended under section 5.
Notwithstanding this the Saurashtra Government adopted and applied the Bombay Civil Service Rules which were then in force in the State of Bombay by an order dated September 23, 1948.
This Court in Bholanath ,J. Thaker vs The State of Saurashtra(1) held that the Rules as regards the age of superannuation which prevailed in the covenanting State which in that case was the State of Wadhwan continued to govern those government servants who had come from that State and had been absorbed in the services of the State of Saurashtra.
In view of that decision the State of Saurashtra made the Saurashtra Covenanting State Servants (Superannuation age).
Rules, 1955, hereainafter called the "Saurashtra Rules", in exercise of the power conferred by article 309 of the Consti tution.
Rule 3(i) provided (1) A.I.R. 1954 S.C. 680.
247 "A Govt.
servant shall, unless for special reasons otherwise directed by Govt.
retire from service on his completing 55 years of age.
" After the integration of the Saurashtra State into the State of Bombay a resolution was passed by the Government on Janu ary 7, 1957 applying the old Bombay Civil Service Rules to Saurashtra area.
On July 1, 1959 the Bombay Civil Service, Rules 1959, hereinafter called the "Bombay Rules" were pro mulgated under article 309 of the Constitution.
Clause (c)(2) (ii) (1) of Rule 161 is as follows "Except as otherwise provided in this Sub clause Government servants in the Bombay Service of Engineers, Class 1, must retire on reaching the age of 55 years, and may be required by the Government to retire on reaching the age of 50 years, if they have attained to the rank of Superintending Engineer.
" It was under this rule that the order retiring the appellant was made.
In the High Court the writ petition filed by the appellant was heard and disposed of with two other similar petitions in which identical questions had been raised.
A number of points were raised in the High Court but it is unnecessary to refer to them because the questions on which the present appeal can be disposed of are only two : (1) Whether the appellant was governed by the Saurashtra Rules or the Bombay Rules and (2) even if the Saurashtra Rules were applicable could the retirement of the appellant be ordered before he, had attained the age of 55 years.
The High Court rightly looked at the provisions of section 115(7) of the .
It is provided thereby that nothing in the section shall be deemed to affect after the appointed.
day the operation of the provisions of Chapter 1 of of the Constitution in relation to 'the determination of the conditions of service of persons serving in connection with the affairs of the Union or any State.
The proviso is important and lays down that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub section (1) or sub section (2) (of section 115) shall not be varied to his disadvantage except with the previous approval in the Central Government.
The case of the appellant fell within the proviso and it had, therefore, to be, determined whether the conditions of service applicable to the appellant immediately before the appointed day which admittedly were contained in the Saurashtra Rules had been varied to his disadvantage, and if so, whether the approval of the Central Government had been obtained.
It was conceded before the High Court by the, learned 248 Advocate General, who appeared for the State, that no previous approval of the Central Government had been obtained to vary the conditions of service of those public servants who were serving in the State of Saurashtra until November 1, 1956.
The High Court in this situation proceeded to decide whether by the application of Rule 161 of the Bombay Rules the conditions of service of the appellant contained in the Saurashtra Rules had been varied to his disadvantage.
It was argued on behalf of the appellant that the expression "unless for special reasons otherwise directed by Government" in Rule 3 (i) of the Saurashtra Rules provided for extension of the age of superannuation beyond 55 years and not for reduction thereof.
The Advocate General had argued that what was meant by the aforesaid words was that Government could, for special reasons, retire a Government servant before he had attained the age of 55 years which was the normal superannuation age.
If that was so Rule 161 (c) (2) (ii) (1) of the Bombay Rules could not be regarded as having varied the conditions of service contained in the Saurashtra Rules to the disadvantage of the Government servants.
The High Court was of the view that while framing the Saurashtra Rules the draftsmen who must have been well aware of the then Bombay Civil Service Rules which were in the same terms as Rule 161 of the Bombay Rules could not have framed the clause in such manner as to introduce an element of discrimination between Executive Engineers who had been absorbed from a Covenanting State and those who had been appointed or recruited directly by the State Government.
In the opinion of the High Court even under the Saurashtra Rules retirement could be ordered before a person had attained the age of 55 years.
It was, therefore, held that the conditions in Rule 161 (c) (2) (ii) of the Bombay Rules had not been shown to be less advantageous or disadvantageous to the appellant than the conditions in Rule 3 (i) of the Saurashtra Rules by which the appellant was governed until November 1, 1956.
In this manner the proviso to section 115(7) of the did not stand in the way of the applicability of the Bombay Rules.
We find it difficult to concur with the view of the High Court.
Rule 3 (i) of the Saurashtra Rules, if construed or interpreted in the manner in which it has been done by the High Court, would bring it into direct conflict with the law laid down by this Court in Moti Ram Deka etc.
vs General Manager, N.E.F. Railways Maligaon, Pandu etc.(1), which is a _judgment of a bench of seven judges of this court.
One of the matters which came up for consideration was the effect of a service rule which permitted compulsory retirement without fixing the minimum period of service after which the rule could be invoked.
According to the (1) ; 249 observations of Venkatarama Ayyar, J., in The State of Bombay vs Saubhagchand M. Doshi(1) the application of such a rule would be tantamount to dismissal or removal under article 311(2) of the Constitution.
There were certain other decisions of this Court which were relevant on this point, viz. P. Balakotaiah vs The Union of India & Ors.(2) and Dalip Singh vs The State of Punjab(3).
All these decisions were considered in Moti Ram Deka 's case(4) and the true legal position was stated in the majority judgment at page 726 thus : "We think that if any Rule permits the appro priate authority to retire compulsorily a civil servant without imposing a limitation in that behalf that such civil servant should have put in a minimum period of service, that Rule would be invalid and the so called retirement ordered under the said Rule would amount to removal of the civil servant within the meaning of article 311(2).
" In Gurdev Singh Sidhu vs State of Punjab & Anr.(5), it was pointed out that the only two exceptions to the, protection afforded by article 311(2) were, (1) where a permanent public servant was asked to retire on the ground that he had reached the age of superannuation which was reasonably fixed; (2) that he was compulsorily retired under the Rules which prescribed the normal age of superannuation and provided a reasonably long period of qualified service after which alone compulsory retirement could be valid.
The basis on which this view has proceeded is that for efficient administration it is necessary that public servants should enjoy a sense of security of tenure and that the termination of service of a public servant under a rule which does ,not lay down a reasonably long period of qualified service is in substance removal under article 311(2).
The principle is that the rule relating to compulsory retirement of a Government servant must not only contain the outside limit of superannuation but there must also be a provision for a reasonably long period of qualified service which must be indicated with sufficient clarity.
To give an example, if 55 years have been specified as the age of superannuation and if it is sought to retire the servant even before that period it should be provided in the rule that he could be retired after he has attained the age of 50 years or he has put in service for a period of 25 years.
Now Rule 3 (i) of the Saurashtra Rules will have to be dec lared invalid if the expression "unless for special reasons other (1) ; (2) [1958] S.C.R. 1052.
(3) (4) ; (5) ; 250 wise directed by Government" is so construed as to give a power to order compulsory retirement even before attaining the age of 55 years.
It is well known that a law or a statutory rule should be so interpreted as to make it valid and not invalid.
If this expression is confined to what was argued before the High Court, namely, that it gives power to the Government to allow a Government servant to remain in service even beyond the age of 55 years for special reasons the rule will not be rendered invalid and its validity will not be put in jeopardy.
So construed it is apparent that the appellant could not have been retired compulsorily under the Saurashtra Rules before he had attained the age of 55 years.
By applying the Bombay rule his conditions of service were varied to his disadvantage because he could then be compulsorily retired as soon as he attained the age of 50 years.
As the previous approval of the Central Government was not obtained in accordance with the proviso to section 115(7) of the , the Bombay rule could not be made applicable to the appellant.
Counsel for the State pressed us to look into certain docu ments for the purpose of finding out whether prior approval of the Central Government was obtained in the matter of varying the conditions of service of the appellant by applying the Bombay rules.
But none of these documents were referred to before the High Court and in the presence of a clear concession by the learned Advocate General we see no justification for acceding to such a request.
In this view of the matter this appeal must succeed and it is hereby allowed with costs in this Court.
It is declared that the appellant was entitled to remain in service until he attained the age of 55 years and that the impugned order directing his retirement was invalid and ineffective.
G.C. Appeal allowed.

summary/full:
The appellant originally joined the service of the State of Junagadh in 1934 and was after the merger of that State in Saurashtra confirmed in September, 1956 as an executive engineer in the service of the latter State.
Rule 3(i) of the Saurashtra Covenanting States Servants (Superannuation age) Rules 1955 provided : "A Govt.
servant shall, unless for special reasons otherwise directed by Govt.
retire from service on his completing 55 years of age.
" After the merger of Saurashtra in the bilingual State of Bombay the old Bombay Civil Service Rules were applied to Saurashtra area with effect from January 7, 1957.
On July 1, 1959 the Bombay Civil Service Rules, 1959 were promulgated.
Accord ing to r. 161 (c) (2) (ii) (1) the age of retirement for class 1 Engineers in the State Service was fixed at 55 years but it was further laid down that they "may be required by the Government to retire on reaching the age of 50 years, if they have attained to the rank of Superintending Engine.
" On the formation of the State of Gujarat the appellant 's 'services were transferred to that State but the Bombay Rules continued to apply.
Under the Bombay Rule aforesaid, namely, r. 161(c)(2)(ii)(1) the Government of the State of Gujarat retired the appellant at the age of about 53 years.
The appellant filed a writ petition in the High Court.
The High Court took into account section 115(7) of the but held that since the Saurashtra Rule 3(i) also empowered the 'State Government to retire the appellant at an age earlier than 55 years there was no variation of conditions of service to his disadvantage under the Bombay Rule and therefore the latter rule was not invalid for want of Presidential assent.
The High Court took the view that the expression "unless for special reasons otherwise directed by Government" in r. 3 (i) of the Saurashtra Rules meant that the Government could for special reasons retire a Government servant before he had attained the normal superannuation age of 55 years.
Against the High Court 's judgment dismissing his writ petition the appellant came by special leave, to this Court.
HELD : Rule 3(i) of the Saurashtra Rules, if construed of interpreted in the manner in which it had been done by the High Court, would bring it into direct conflict with Moti Ram Deka 's case as well as other cases decided by this Court.
In Moti Ram Deka 's case it was laid down that if any rule permitted the appropriate authorities to retire compul sorrily a civil servant without imposing a limitation in that behalf that such 245 civil servant should have put in a minimum period of service.
that rule would be invalid and the so called retirement ordered under the said rule would amount to removal of the civil servant within the meaning of article 311(2) of the Constitution.
The principle is that the rule relating to compulsory retirement of a Government servant must not only contain the outside limit of superannuation but there must also be a provision for a reasonably long period of qualified service which must be indicated with sufficient clarity.
For example if 55 years have been specified as the age of superannuation and if it is sought to retire the servant even before that period it should be provided in the rule that he could be retired after he has attained the age of 50 years or he has put in service for a period of 25 years.
[248 G 249 G] On the above principle rule 3 (i) of the Saurashtra Rules would have to be declared invalid if the expression "unless for special reasons otherwise directed by Government" is so construed as to give a power to order compulsory retirement even before attaining the 'age of 55 years.
A statutory rule, however, should be so interpreted as to make it valid and not invalid.
The correct interpretation of Rule 3(i) is that it gives power to the Government to allow a Government servant to remain in service even beyond the age of 55 years for special reasons; so construed the Rule would not be invalid and the appellant could not under it have been retired before be had attained the age of 55 years.
By applying the Bombay Rule his conditions of service were varied to his disadvantage because he could then be compulsorily retired as soon as he attained the age of 50 years.
As the previous approval of the Central Government was not obtained in accordance with the proviso to section 115(7) of the , the Bombay Rule could not be made applicable to the appellant.
[249 G 250 C] The appellant was thus entitled to remain in service until he attained the age of 55 years and the impugned order directing his retirement was invalid and ineffective.
[250 E F] Bholanath J. Thaker vs State of Saurashtra, A.I.R. (1954) S.C. 680, referred to.
Moti Ram Deka etc.
vs General Manager N.E.F. Railways Maligaon, Pandu etc.
; , State of Bombay vs Saubhag chand M. poshi; , , P. Balakotaiah vs Union of India; , , Dalip Singh vs State of Punjab, and Gurdev Singh Sidhu vs State of Punjab & Anr. ; , applied.


judgement:
Appeal No. 614 of 1966.
Appeal by special leave from the judgment and order dated March 24, 1965 of the Andhra Pradesh High Court in Civil Revision Petition No. 966 of 1962.
A. V. V. Nair, for the appellant.
P. Ram Reddy and B. Parthasarathy, for the respondent.
The Judgment of the Court was delivered by Mitter, J.
This appeal by special leave is from a common judgment and order of the High Court of Madras disposing of three Revision Applications arising out of O.P. No. 95 of 1948 filed under section 4(3) and (4) of the Andhra Pradesh (Andhra Area) Estates Communal Forest and Private Lands (Prohibition of Alienation) Act, 1947 (hereinafter called the 'Act).
The central question in this appeal is, whether certain transfers of lands alleged to be forest lands made by the 6th respondent herein became void and inoperative under section 4 of the Act.
The said respondent who was a big landholder granted a patta to his wife, 7th respondent, for Ac.
100 00 of 'land on November 9, 1944.
Another patta was similarly granted to the appellant in respect of Ac.
90 00 of land on November 25, 1944 On the same day, respondent No. 6 granted a third patta for Ac.
331 200 00 of land to respondents 2 to 5.
The Act came into force on October 25, 1947.
On October 15, 1948 Original Petition No. 95 of 1948 was filed in the District Court of Eluru by two ryots for a declaration that the alienations we 're void and did not confer any rights on the alienees.
Thereafter the said petition was split into two parts, O.P. 95/1943 being directed against respondents 1 to 6 while O.P. No. 95 (a) of 1948 was directed against the 7th respondent.
The petitions were disposed of by an order of the District Judge dated July 18, 1950 holding that lands covered by the pattas were forest lands and all the alienations were void and inoperative.
A civil Revision Petition was filed in the High Court of Madras by respondents 1 to 5 against the order of the District Judge.
This was numbered as C.R.P. No. 22 of 1951.
Respondent No. 7 filed a Miscellaneous Petition No. 9534 of 1950 in the High Court of Madras.
By order dated 6th August 1952 both the petitions were dismissed by a single Judge of the Madras High Court.
This order was how ever set aside in a Letters Patent Appeal filed by respondents 1 to 5 (No. 261 of 1952) wherein it was held that the petitioners as ryots had no right to maintain the petition but reasonable opportunity should be given to the State to get transposed as the petitioner.
The State Government thereafter got itself transposed as the petitioner.
The District Court however held that he petition was not maintainable by reason of the repeal of the Act by reason of the passing of a subsequent Act, XXVI of 1948 styled the Madras Estates (Abolition and Conversion into Ryotwari ) Act, 1948, hereinafter referred to as the Act of 1948.
Against this the State Government filed a Revision Petition in the High Court of Andhra Pradesh numbering 1555 of 1955.
The High Court held that the dismissal of the petition on the ground of repeal of the Act was improper and that the petition should be disposed of on the merits and remitted the matter to the District Judge.
By a judgment dated November 30, 1960 the District Judge allowed the petition negativing the contentions of the respondent but holding that the lands were forest lands and transfers thereof were void.
The appellant and others filed Civil Revision Petitions in the High Court of Andhra Pradesh which were disposed of and dismissed by a common judgment dated August 24, 1965.
Hence this appeal.
The points urged before us by learned counsel for the appel lant were: (1) The Act applied only to lands which were admittedly forest lands and the operation thereof could not be extended to lands in respect of which there was a dispute as to the nature thereof.
It was argued that any such dispute could only be decided by the Settlement Officer and not by the District Judge.
(2) The Act was a temporary Act and all proceedings thereunder came to an end with the repeal of the Act; and (3) A notification 332 by the State Government describing the land as forest land was as essential pre requisite to the application of the Act.
The purpose of the Act was to prohibit the alienation of communal, forest and private lands in estates in the Province of Madras and the preamble to the Act shows that it was enacted to prevent indiscriminate alienation of communal, forest and private lands in estates in the Province of Madras pending the enactment of legislation for acquiring the interests of landholders in such estates and introducing ryotwari settlement therein.
No fixed duration of the Act was specified and it is impossible to hold that merely because of the above preamble the Act became a tempo rary Act.
The definition of 'forest land ' is given in section 2(b) of the Act reading : "forest land" includes any waste lands containing trees and shrubs, pasture land and any other class of land declared by the State Government to be forest land by notification in the Fort St. George Gazette; Sub section
(1) of section 3 prohibited landholders from selling, mortgaging, converting into ryoti land, leasing or otherwise assigning or alienating any communal or forest land in an estate without the previous sanction of the District Collector, on or after the date on which the Ordinance which preceded the Act came into force, namely, the 27th June, 1947.
Section 4(1) provided that : "Any transaction of the nature prohibited by section 3 which took place, in the case of any communal or forest land, on or after the 31st day of October 1939 .
. shall be void and inoperative and shall not confer or take away, or be deemed to have conferred or taken away, any right whatever on or from any party to the transaction : This sub section had a proviso with several clauses.
Our attention was drawn to clauses (iii), (iv) and (v) of the proviso but in our opinion none of these provisos was applicable to the facts of the case so as to exclude the operation of sub section
(1) of section 4.
Under sub section
(3) of section 4.
"If any dispute arises as to the validity of the claim of any person to any land under clauses (i) to (v) of the proviso to sub section (1), it shall be open to such person or to any other person interested in the transaction or to the State Government, to apply to the District Judge of the district in which the land is situated, for a decision as to the validity of such claim.
" 333 Under sub section
(4) the District Judge to whom such application is made was to decide whether the claim to the land was valid or not after giving notice to all persons concerned and where the application was not made by the State Government, to the Government itself, and his decision was to be final.
Madras Act XXVI of 1948 was passed on ' April 19, 1949 being an Act to provide for the repeal of the Permanent Settlement, the acquisition of the rights of landholders in permanently settled and certain other estates in the Province of Madras, and the introduction of ryotwari settlement in such estates.
Apparently because of the preamble to the Act it was contended that with the enactment of the repeal of the Permanent Settlement by the Act of 1948 which also provided for the acquisition of the rights of landholders in permanently settled estates, the Act stood repealed.
We fail to see how because of the preamble to the Act it can be said that it stood repealed by the enactment of the later Act unless there were express words to that effect or unless there was a necessary implication.
It does not stand to reason to hold that the alienation of large blocks of land which were rendered void under the Act became good by reason of the passing of the later Act.
Our attention was drawn to section 63 of the later Act which provided that "If any question arises whether any land in an estate is a forest or is situated in a forest, or as to the limits of a forest, it shall be determined by the Settlement Officer, subject to an appeal to the Director within such time as may be prescribed and also to revision by the Board of Revenue." In terms the section was only prospective and it did not seek to impeach any transaction which was effected before the Act and was not applicable to transactions anterior to the Act.
In our opinion section 56(1) of the later Act to which our attention was drawn by the learned counsel does not fall for consideration in this case and the disputes covered by that section do not embrace the question before us.
Madras General Clauses Act, 1 of 1891 deals with the effect of repeals of statutes.
Section 8 sub section
(f) thereof provides that "Where any Act, to which this Chapter applies, repeals any other enactment, then the repeal shall not a) to (e) (f) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, fine.
penalty, forfeiture or punishment as aforesaid; and any such investigation legal proceeding or 334 remedy may be instituted, continued or enforced, and any such fine, penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed.
This shows that even if there was a repeal any investigation started before the repeal would have to be continued and legal proceedings under the Act could be prosecuted as if the repealing Act had not been passed.
There is also no force in the contention that unless there was a notification under section 2(b) of the Act declaring a particular land to be forest land, the applicability of the Act would be excluded.
The definition of forest land ' in that section is an inclusive one and shows that 'forest land ' would include not only waste land containing trees, shrubs and pasture lands but also any other class of lands declared by Government to be forest land.
This does not mean that before a piece of land could be said to be forest land there would have to be a notification by the Government under the Act.
Lastly, counsel contended that sub section
(1) of section 20 of the later Act as originally enacted applies to forest lands and therefore the later Act became applicable thereto.
The original section was however substituted for another by section 9 of the Madras Estates (Abolition and Conversion into Ryotwari) (Amendment) Act, 1956 which was to be deemed to have come into force on April 19, 1949 being the date on which the Act of 1948 originally ,came into force.
The section as it now stands did not confer any jurisdiction on the Settlement Officer to determine any question as to whether any land was forest land within the meaning of the Act and consequently the adjudication by the District Judge under sub section
(4) of section 4 was quite competent.
Accordingly we dismiss the appeal, but do not think it necessary to make any order for costs relating thereto.
R.K.P.S. Appeal dismissed.

summary/full:
The sixth respondent granted various Pattas of his lands to his wife, to the appellant and others in November, 1944.
After the coming into force of the Andhra Pradesh (Andhra Area) Estates Communal, Forest and Private Lands (Prohibition of Alienation) Act, 1947, section 4(1) of which declared alienation of Communal or Forest Lands after October, 1939, to be void, a petition was filed in the District Court by two ryots for a declaration that the alienations in the present case were void and did not confer any rights on the alienees.
The District Judge allowed the petition holding that the lands in question were forest lands and the alienations were void.
Revision petitions filed before a Single Judge of the High Court were dismissed but in a Letters Patent Appeal it was held that the petitioners as ryots had no right to maintain the petition, and a reasonable opportunity had to be given to the State to get itself transposed as the petitioner.
The State Government was then transposed as the petitioner but thereafter the District Judge held that the petition was not maintainable by reason of the repeal of the Act of 1947 upon the passing of a subsequent Act namely the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948.
However, a revision petition against this order was allowed by the High Court which remitted the matter to the District Judge.
By a judgement in November, 1960 the District Judge allowed the were forest lands and there transfers were void.
Further revision petitions filed by the appellant and others were dismissed by the High Court.
In appeal to this Court it was contended inter alia on behalf of the appellant that (1) the Act of 1947 was a temporary Act and all proceedings thereunder came to an end with the implied repeal of the Act by Act XXVI of 1948; (2) a notification by the State Government describing the land as forest land was an essential pre requisite to the application of the Act; and (3) the Act applied only to lands which were admittedly forest lands and the operation thereof could not be extended to lands in respect of which there was a dispute as to the nature thereof.
It was argued that any such dispute could only be decided by the Settlement Officer and not by the District Judge.
HELD: Dismissing the appeal, (1) The purpose of the Act of 1947 was to prohibit the alienation of communal, forest and private lands in estates in the Province of Madras and the preamble to the Act shows that it was enacted to prevent indiscriminate alienation of such lands pending the enactment of legislation for acquiring the interest of landholders in such estates and introducing ryotwari settlement therein.
No fixed duration of the Act was specified 330 and it was impossible to hold that merely because of the contents of the preamble, the Act became a temporary Act or that it stood repealed by the enactment of the later Act of 1948 unless there were express words to that effect or unless there was a necessary implication.
It is not reason able to hold that the alienation of large blocks of land which were rendered void under the Act of 1947 became good by reason of the passing of the later Act.
[332 B] (2) The definition of "forest lands" in section 2(b) of the Act is an inclusive one and shows that 'forest land ' would include not only waste land containing trees, shrubs and pasture lands but also any other class of lands declared by Government to be forest land.
This does not mean that before a piece of land could be said to be forest land there would have to be a notification by the Government and that otherwise the application of the Act would be excluded.
[334 C] (3) Section 20(1) of the Act of 1948 as originally enacted was substituted for another by section 9 of the Madras Estates (Abolition and Conversion into Ryotwari) (Amendment) Act, 1956, which was to.
be deemed to have come into force on April 19, 1949 being the date on which the Act of 1948 originally came into force.
The section as it now stands did not confer any jurisdiction on the Settlement Officer to determine any question as to whether any land was forest within the meaning of the Act and consequently the adjudication by the District Judge under sub.
section (4) of