judgement:
Civil Appeal No. 156(N) of 1976.
From the Judgment and Order dated 3.12.1974 of the Allahabad High Court in Writ Petition No. 418 of 1974.
Ms. Rachna Gupta and Ms. Rani Chhabra for the Appellant.
729 R. Bana for the Respondents.
The Judgment of the Court was delivered by KASLIWAL, J.
This Civil Appeal by Special Leave is directed against the Judgment of the High Court of Judica ture at Allahabad (Lucknow Bench) dated 3.12.1974.
The High Court by a common order disposed of number of Writ Petitions but we are concerned with Writ Petition No. 418/74 filed by Dr. Bhagwan Din Misra who is respondent No. 1 before us.
Brief facts of the case are that in the month of August, 1973 an advertisement appeared in the daily Newspaper "National Herald" inviting applications for the post of Reader in 'Linguistics ' in the Department of Hindi of the University of Lucknow.
Interview of the candidates was held on 8.4.74 at 3.00 p.m. by a Selection Committee consisting of five members viz. the Vice Chancellor of the University, Dr. K.N. Shukla, Head of the Department of Hindi and Modern Indian Languages Lucknow University, Dr. Bhagirath Misra, Head of the Department of Hindi Saugar University, Saugar, Dr. Harbanslal Sharma, Head of the Department of Hindi, Aligarh Muslim University, Aligarh and Shri Shyam Sunder, Head of the Department of Hindi Bihar University, Muzaffar pur.
It may be noted that the three experts from outside as mentioned above were experts in Hindi Literature and not Linguistic experts.
The Selection Committee after interview ing the various candidates recommended the name of the appellant, Dr. Triloki Nath Singh for being appointed to the post of Reader Linguistics in Hindi Department and the respondent No. 1, Dr. Bhagwan Din Misra was placed in the second position.
Dr. Bhagwan Din Misra, respondent No. 1 filed a writ petition in the High Court inter alia stating that the Selection Committee was not a legally constituted Committee and its recommendation should not be acted upon.
The writ petition was contested on behalf of the University as well as by the appellant.
The High Court held that the prospectus of the University showed that 'Linguistics ' was a separate subject of study.
There were two courses in M.A. Part I and Part II, one in Hindi Language and Literature, and, the other in Linguistics.
The High Court observed that even candidates, having passed the B.A. examination in Sanskrit or English, or M.A. Examination in Sanskrit or English were also eligible for admission in M.A. in Linguistics in the Department of Hindi.
Linguistics was thus a separate subject of study and even graduates, who might not have passed the 730 B.A. Examination with Hindi, were entitled to be admitted and awarded the degree of M.A. in Linguistics.
The Chancel lor under Statute 17 1 of the University was required to nominate experts out of the panel of experts in the subject of 'Linguistics '.
The High Court further held that having regard to the fact that 'Linguistics ' was a separate subject of study in the University of Lucknow and the Chancellor had drawn a panel of experts in 'Linguistics ', the nomination of experts out of the panel drawn for the subject of Hindi suffered from a serious legal infirmity, substantially affecting the constitution of the Selection Committee, which could not have been cured under Section 66(a) of the Uttar Pradesh State Universities Act, 1973 (hereinafter as the Act of 1973) and as such the recommendation of the Selection Committee was liable to be quashed.
The High Court as a result of the above findings allowed writ petition No. 418/74 and quashed the recommendation of the Selection Committee dated 8th April, 1974 for appoint ment to the post of Reader in 'Linguistics ' in the Depart ment of Hindi.
Dr. Triloki Nath Singh has thus filed the present appeal challenging the order of the High Court.
We have heard counsel for both the parties.
It may be mentioned that the Lucknow University neither filed any appeal against the order of the High Court nor any counsel appeared on its behalf before us.
Learned counsel for the appellant contended that under Explanation II to sub section (5) of Section 31 of the Act of 1973 the experts drawn out of the panel of experts in Hindi could make selection of Reader in 'Linguistics ' in the Department of Hindi.
It was further contended that in view of the fact that a Reader in 'Linguistics ' was to be appointed in the Depart ment of Hindi as such experts in Hindi Language and Litera ture were also qualified to act as experts for the selection of Reader in 'Linguistics '.
Learned counsel tried to seek support from the papers taught for M.A. in Linguistics as well as for M.A. in Hindi in order to convince that some papers were common to both the subjects, and as such there was nothing wrong or illegal in case the experts of Hindi Language and Literature were appointed for the selection of Reader in Linguistics.
On the other hand learned counsel for the respondent No.1 supported the Judgment of the High Court.
It was sub mitted by him that Linguistics was a separate subject of study for M.A. Part I and Part II and merely because the post of Reader in Linguistics was in the 731 Department of Hindi, it would not make any difference and the experts of Hindi Language and Literature cannot be appointed as experts in the Selection Committee for the selection of Reader in Linguistics.
We have considered the arguments advanced by learned counsel for both the parties and have perused the record.
There is no controversy between the parties that the pro spectus of Lucknow University Department of Hindi and Modern Indian Languages prescribed the courses of study for M.A. Part I and Part II in the subject of Hindi Language and Literature, and Linguistics separately.
The prospectus of Lucknow University, Department of Hindi and Modern Indian Languages prescribed the following courses of study for M.A. Part I and Part II for Hindi Language and Literature and the other for Linguistics M.A. Parts I and II There shall two courses in M.A. Parts I and II one in Hindi Languages and Literature and the other in Linguistics.
Students may choose either of these two courses.
M.A. part I (Language and Literature) Paper I Prachin Hindi Kavya Paper II Madhyayugeen Kavya Paper III Basic and Modern Indian Language Paper IV History Hindi Literature and Criticism Paper V Adhunik Hindi Gadya M.A. and Part II (Language and Literature) There shall be four papers and a viva voce test.
Paper I Linguistics and Historical Grammar of Hindi Paper II Vishesh Kavi Paper III Adhunik Kavya Paper IV Essay or Thesis or Folk Literature.
M.A. Part I (Linguistics) Paper I Introduction to the principle of General Linguistics 732 Paper II Phonetics and Phonemics Paper III Descriptive Grammar of Hindi Paper IV Applied Linguistics.
M.A. Part 11 (Linguistics) There will be four papers and a viva voce test.
Paper I Morphology and syntex Paper II Comparative and Historical Linquisitics with special reference to Indo Aryan and Hindi Language.
Paper III Dialectology with special reference Hindi Area.
Paper IV Essay or Thesis.
The above courses of study show beyond any manner of doubt that Hindi Language and Literature and, Linguistics are two different and separate subjects.
It is also impor tant to note that even graduates who have not passed the B.A. examination with Hindi could be admitted and awarded the degree of M.A. in Linguistics.
Merely because the Lin guistics is also a subject of study in one paper of Hindi, it cannot be said that Linguistics and Hindi Language and Literature fall under the same subject of study in the University.
It is an admitted position that separate Panel of Experts was drawn for the subjects of Hindi and Linguis tics.
As the Learned counsel for the appellant has strenuously placed reliance on Explanation II to sub section (5) of Section 31 of the Act of 1973 it is necessary to reproduce the same.
Sub Section (5) of Section 31 reads as under: "31.(5)(a) A panel of six or more experts in each subject of study shall be drawn up by the Chancellor after consulting the corresponding Faculty in Indian Universities or such academic bodies or research institutions in or outside Uttar Pradesh as the Chancellor may consider necessary.
Every expert to be nominated by the Chancellor under sub section (4) shall be a person whose name is borne on such panel.
(b) The Board of each Faculty shall maintain a standing panel of sixteen or more experts in each subject of study, and every expert to be nominated by the Vice 733 Chancellor under sub section (4) shall be a person whose name is borne on the panel.
(c) A panel referred to in clause (a) or clause (b) shall be revised after every three years.
" Explanation/ For the purposes of this sub section, a branch of subject in which a separate course of study is prescribed for a post graduate degree or for Part I or Part II thereof shall be deemed to be a separate subject of study.
Explanation 11 Where the post of teacher to be selected is common to more than one subject of study, the expert may belong to either of such subjects of study.
The High Court while considering a similar argument made before it held that Explanation II could be availed of by the Chancellor when he has drawn a fresh panel of experts in each subject of study under sub section (5)(a).
The High Court further held that Explanation II cannot be divorced from the substantive provision contained in sub section (5)(a).
It cannot stand independently of and separate from the sub section.
The Explanation must be read so as to harmonise and clear up any ambiguity in the main sub sec tion.
The High Court thus concluded that Explanation II was wholly inapplicable to the instant case and the question had got to be determined whether the experts who constituted the Selection Committee were the experts drawn out of the panel, under Clauses 168 and 169 of the Statutes.
The High Court then observed that according to the prospectus of the Uni versity Linguistics was a separate subject of study in the University of Lucknow and the Chancellor had a panel of experts on Linguistics drawn under Statutes 168 and 169, the nomination of experts out of the panel drawn for the subject of Hindi suffered from a serious legal infirmity substan tially affecting the constitution of the Selection Committee which could not have been cured by Section 66(a) of the Act.
We are examining the matter in a slightly different manner.
Even if the panel already constituted by the Chan cellor prior to the coming into force of the Uttar Pradesh State Universities Act, 1973, is treated as a panel consti tuted under sub section (5)(a) of Section 31 of the Act of 1973 Explanation II does not render any help to the appel lant.
We are in complete agreement with the High Court that subject of Hindi Language and Literature and the subject of Linguistics are entirely 734 separate subjects of study.
This is clearly borne out from Explanation 1 to sub section (5)(a) of Section 31 of the Act of 1973.
Explanation I lays down in a clear manner that for the purpose of this sub section, a branch of subject in which a separate course of study is prescribed for a post graduate degree or for Part I or Part II thereof shall be deemed to be a separate subject of study.
The prospectus of the University makes it abundantly clear that separate courses of study are prescribed for M.A. Part I or Part II in respect of Hindi on the one hand and Linguistics on the other.
Explanation II lays down that where the post of teacher to be selected is common to more than one subject of study, in that case the expert may belong to either of such subjects of study.
The advertisement issued in the present case was placed before us and which clearly made a mention at Serial No. 24 "One Reader in Linguistics in the Depart ment of Hindi".
At Serial No. 23 there was a separate men tion "There Readers in Hindi".
The qualifications essential for the above posts as mentioned in the advertisement reads as under: "QUAlIFICATIONS: ESSENTIAL: First or high Second Class Master 's Degree and Doctorate in the subject concerned with a good academic record and experience of teaching honours/postgraduate classes for not less than five years and published research work of high standard in the subject concerned.
The essen tial degree qualification for the post of Readers in Faculty of Law will be LL.M. degree.
" The above provision laying down essential qualifications also goes to show that first or high second class degree and doctorate in the subject concerned was an essential qualifi cation.
As already mentioned above posts were mentioned separately for three Readers in Hindi and one Reader in Linguistics in the Department of Hindi.
Explanation II could only apply in a case where the post of teacher to be select ed was common to more than one subject of study.
Advertise ment no where provided that one Reader in Linguistics in the Department of Hindi was to be selected as common to more than one subject of study.
Merely because the post of Reader in Linguistics was required in the Department of Hindi, it cannot be held that such Reader in Linguistics was to teach the subject of Linguistics as well as the subject of Hindi Language and Literature.
It may also be noted that from a perusal of the above advertisement alongwith the prospectus of the University clearly goes to show that for the post of 735 Reader in Linguistics it was necessary to have an essential qualification of first or high second class Master 's degree and Doctorate in the subject of Linguistics.
Explanation II can apply in a case where one common teacher is to be se lected for more than one subject of study and in that con tingency it provides that the expert may belong to either of such subjects of study.
In the case in hand before us the advertisement did not mention that the post of one Reader in Linguistics in the Department of Hindi was common with any other subject of study.
Thus the appointment of all the experts in the present case of subject of Hindi for the selection of one Reader in Linguistics in the Department of Hindi was totally wrong and illegal.
In view of the discussion made above, we do not find any ground in the appeal to interfere with the Order of the High Court.
In the result this appeal fails and is rejected with no order as to costs.
R.S.S. Appeal failed.

dataset_name: IN-Abs

summary/full:
A Selection Committee consisting of five Members was constituted to recommend names for appointment to the post of Reader in 'Linguistics ' in the Department of Hindi of the University of Lucknow.
The Selection Committee after inter viewing the candidates recommended the name of the appellant while respondent No. 1 was placed in the second position.
Respondent No. 1 filed a writ petition in the High Court challenging the recommendations of the Selection Committee on the ground that the Selection Committee was not legally constituted because three experts on the Committee were experts in Hindi Literature and not Linguistic experts.
The High Court allowed the petition and inter alia held that under Statute 171 of the University, the Chancellor was required to nominate experts out of the panel of experts in the subject of 'Linguistics ', which was a separate subject of study in the University; that the nomination of experts out of the panel drawn from the subject of Hindi suffered from a serious legal infirmity; and that Explanation II to sub section (5) of Section 31 of the U.P. State Universities Act, 1973 was wholly inapplicable to the instant case.
Before this Court it was contended on behalf of the appellant that in view of the fact that a Reader in 'Lin guistics ' was to be appointed in the Department of Hindi as such experts in Hindi Language and Literature were also qualified to act as experts for the selection of Reader in 'Linguistics '.
Respondent No. 1, while supporting the judgment Of the High Court, submitted that Linguistics was a separate sub ject of study for M.A. Part I and Part II and merely because the post of Reader in Linguistics was in the Department of Hindi, it would not make any difference and the experts of Hindi Language and Literature could not be 728 appointed as experts in the Selection Committee for the selection of Reader in Linguistics.
Dismissing the appeal, this Court, HELD: (1) The prospectus of the University makes it abundantly clear that separate courses of study are pre scribed for M.A. Part I or Part II in respect of Hindi on the one hand and Linguistics on the other.
[734B] (2) The subject of Hindi Language and Literature and the subject of Linguistics are entirely separate subjects of study.
This is clearly borne out from Explanation I to sub section (5)(a) of section 31 of the Universities Act.
[733H; 734A] (3) Explanation I lays down in a clear manner that for the purpose of this sub section, a branch of subject in which a separate course of study is prescribed for a post graduate degree, or for Part I or Part II thereof, shall be deemed to be a separate subject of study.
[734A] (4) It is an admitted position that separate Panels of Experts were drawn for the subjects of Hindi and Linguis tics.
[732E] (5) In the instant case, the advertisement no where provided that one Reader in Linguistics in the Department of Hindi was to be selected as common to more than one subject of study.
Merely because the post of Reader in Linguistics was required in the Department, it cannot be held that such Reader in Linguistics was to teach the subject of Linguis tics as well as the subject of Hindi Language and Litera ture.
[734G H] (6) Explanation II to sub section (5) of section 31 of the Universities Act can only apply in a case where one common teacher is to be selected for more than one subject of study and in that contingency it provides that the expert may belong to either of such subjects of study.
[735A B]


judgement:
vil Appeals Nos. 578485 of 1983.
From the Judgment and Order dated 2.3.1983 of the Andhra Pradesh High Court in W.A. Nos. 170 and 171 of 1982.
WITH Special Leave Petition (Civil) No. 1679 of 1989 and Transfer case No. 29 of 1989.
From the Judgment and Order dated 13.6.1988 of the Andhra Pradesh High Court in Writ Petition No. 5498 of 1983.
T.S. Krishnamurthy lyer, Dr. V. Gouri Shankar, Meeraj Khayyam, R.N. Keshwani.
M. Qamaruddin, P.N. Mishra and Mrs M. Qamaruddin for the Appellant.
Dr. L.M. Singhvi, S.K. Shashtri, D.N. Mishra and T.V.S.N Chart for the Respondents.
C. Sitaramaiah and G. Prabhakar for the State of Andhra Pradesh.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
The appeals are by special leave 1he transferred writ petition by respondent No. 1 in the Civil Appeals is writ petition before the Andhra Pradesh High Court being 6500 of 1983 in a connected proceedings.
The special leave petition is by the 785 owner of some lands which form the subject matter of acqui sition.
On 5.6.1975 21.10 acres of land located at Bagh Amberpet in Hyderabad said to be belong to Syed Azam and members of his family were notified to be acquired under section 4(1) of the Land Acquisition Act for a housing project undertaken by the Hyderabad Municipal Corporation in collaboration with HUDCO.
Enquiry under section 5A of the Act was dispensed with by a separate notification issued along with the preliminary notification.
On 25.4.1978, notification under section 6 of the Land Acquisition Act was made.
Tulsi Cooperative Housing Society on the plea that it had entered into a contract of purchasing the very property from the owners had applied for exemption under the Urban Land Ceiling Act.
On 17.10.1978, prayer for exemption was refused.
On 11.9.1980 exemption was, however, granted.
Thereupon two writ petitions were filed before the High Court one by Tulsi Cooperative Hous ing Society and the other by the owners of the property for quashing of the acquisition proceedings.
The learned Single Judge upheld the acquisition but the writ appeal of Tulsi Cooperative Housing Society were allowed by a Full Bench of the High Court as a result of which the acquisition proceed ings were held to be inoperative.
Bagh Amberpet Welfare Society had entered into arrange ment with the Hyderabad Municipal Corporation for being assigned land for construction and was, therefore, interest ed in the acquisition.
The civil appeals are by that Society challenging the decision of the Full Bench of the High Court in the two writ appeals filed by Tulsi Cooperative Housing Society.
On 23.6.1983, the exemption which had been granted on 11.9.
1980 was withdrawn by the State Government.
Syed Azam, one of the owners, challenged the withdrawal of the exemption by filing a writ petition before the High Court.
The High Court took note of the position that the dispute was already pending in this Court and, therefore, by its order dated 13.6.1988, dismissed the petition without entering into the merits.
That has led the owner to move this Court by special leave.
Tulsi Cooperative Housing Society also moved the High Court by filing Writ Petition No. 6500/83 against the with drawal or ' the exemption.
That petition was pending adjudi cation before the High Court and at the instance of the parties this Court directed transfer of that case to this Court to be heard along with the pending matters.
This is how Transferred Writ Petition No. 29/89 forms part of this group of litigation.
786 On 7.8.1985, this Court desired that the dispute should be settled amicably and accordingly certain proposals were examined.
As already noticed, the acquisition was of 20.10 acres of land.
18 acres and 3 gunthas belonged to the Azam family and at one stage each of the two Cooperative Socie ties had agreed to take 9 acres and 1 1/2 gunthas thereof.
The Secretary to Andhra Pradesh Government in the Urban Development Department responded to the settlement by say ing: "Since the compromise is arrived at between both the ag grieved parties before the Requisitioning Officer based upon the opportunity given by the Supreme Court, the State Gov ernment need not intervene in regard to land acquisition.
Necessary and just orders under the circumstances of the case may be passed on the basis of the compromise deed filed by both the Societies at the earliest possible to enable them to build houses.
" This Court, however, gave time to the counsel for the State of Andhra Pradesh to take instructions as to the application of the Urban Land Ceiling Act as exemption granted under section 20 had been withdrawn in June, 1983.
The State of Andhra Pradesh thereafter did not accept the compromise by taking the stand that proceedings under the Urban Land Ceiling Act were pending and in view of the fact that there was no exemption, the property was liable to vest in Government under the Act as surplus land.
This Court on August 23, 1988, made an order, the rele vant part of which is extracted: "We are not impressed by the stand taken by the writ peti tioners that there was justification for their not approach ing the court for six years after the section 4(1) notification, when they wanted to challenge the denial of the hearing under section 5A of the Act and the proceedings itself otherwise.
We agree with the learned Single Judge that the explanation not being acceptable, the writ petition has been rightly dismissed.
On this analysis the appellate judgment of the High Court cannot be sustained and the acquisition proceed ings have to be revived.
" This order virtually disposed of the appeals but as the parties were negotiating a settlement the Court did not record a formal disposal of the dispute.
787 If the settlement does not fructify, the effect of our decision that the acquisition proceedings are to revive, would be that the claim to the land by Tulsi Cooperative Housing Society would come to an end.
In that event, at the most that Society would only be entitled to such compensa tion as may be awardable in law.
If the acquisition proceeds the Bagh Amberpet Welfare Society and the Municipal Corpora tion would have to work out their mutual rights.
Apart from these, the two writ petitions challenging the withdrawal of the exemption by order dated 23.6.1983 would also have to be disposed of on the merits.
The owner 's application has been dismissed upon the High Court taking the view that the matter was before this Court and, therefore, the High Court would not entertain the dispute.
The challenge by Tulsi Cooperative Housing Society against the said withdrawal was before the High Court for adjudication.
In view of the fact that the owner 's writ petition was dismissed not on merits but on other considerations, we are of the view that the said dismissal should be vacated and that writ petition should be heard along with Writ Petition No. 6500/83 as a common question arises for determination.
We, therefore, set aside the order of the High Court dated 13th of June, 1986, and direct that the said writ petition shall be disposed of afresh on merits.
We are of the view that the entire litigation should go back to the High Court for appropriate disposal.
The trans ferred writ petition, therefore, shall also go back to the High Court and shall be dealt with as Writ Petition No. 6500 of 1983.
The two petitions challenging the withdrawal of exemption shall be clubbed together and be heard.
The pro posals undertaken relating to a settlement in regard to the 18 acres and 3 gunthas of land may be considered by the High Court in the light of all relevant material and circum stances.
If the High Court is of the opinion that the matter should be settled and the entire land of the owners amount ing to 18 acres and 3 gunthas should be divided between the two Societies, it will be free to do so if Government also agrees thereto.
Since that arrangement would be with the consent of the State Government it would in such an event be open to the High Court to nullify the acquisition.
The observations which we have made at different stages during the pendency of the proceedings in this Court may not be taken to be expression of opinion on the merits and the High Court would be free to deal with the matter in its own discretion and in accordance with law.
In the event of the settlement not coming through the acquisition proceedings would continue under the law and be concluded by the Land Acquisition Officer in accordance with law.
In the event of the 788 acquisition working out, the two write petitions against the withdrawal of exemption would not be sustainable as the land would vest in Government as a result of acquisition.
It would be open to the Government or the acquiring authority to take into account the effect of the laws of urban ceil ing.
The civil appeals are remitted to the High Court limited to the consideration of the proposals for settlement in the light of the observations hereinabove.
Otherwise, they must be taken to have been concluded in this Court on our finding that acquisition proceedings are valid and shall be entitled to continue.
The special leave petition of Azam is disposed of with a direction that the writ petition in the High Court shall be re heard.
The transferred writ petition is remitted to the High Court to be disposed of as Writ Petition No. 6500 of 1983.
The hearing of the writ petitions would depend upon the fate of the settlement as indicated above.
There would be no order for costs in this Court.
Money, if any, in deposit in the Registry of this Court to the credit of the parties shall be transferred to the High Court and shall be subject to such directions as the High Court may issue upon a final decision of the relevant issues arising in the proceedings.
G.N. Appeals and Petitions disposed of.

summary/full:
For the purposes of a housing project, some land was acquired by way of a notification under the Land Acquisition Act.
The Respondent Society claiming that it had entered into a contract with the owners for purchasing the very property, applied for exemption under the Urban Ceiling Act.
The exemption prayed for was refused initially, but was granted later.
Both the Respondent Society and the owners of the said land filed Writ Petitions before the High Court for quashing of the acquisition proceedings.
The acquisition was upheld by Single Judge, but on appeal by Respondent Society, the Full Bench held the acquisition proceedings to be inopera tive.
Against these orders, the appellant Society which had entered into an agreement with the Municipal Corporation, and as such interested in the acquisition, has preferred the appeals.
Meanwhile, the State Government withdrew the exemption granted under the Urban Ceiling Act.
One of the owners filed a Writ Petition before the High Court challenging the with drawal.
The High Court took note of the fact that the mat ters were pending in this Court and dismissed the petition.
Aggrieved against the order of dismissal, a petition for special leave has been filed.
The Respondent Society also moved the High Court by way of a Writ Petition challenging the withdrawal of exemption, which was pending and this Court transferred the same to itself, to be heard with the pending cases.
On 7.8.1985, this Court gave time to Counsel to consider various compromise proposals.
However, the desired compro mise did not come through.
On 23.8.1988 this Court passed an order holding that the 783 acquisition proceedings have to be revived.
However, no formal disposal was recorded since a settlement was being negotiated.
Even after about 2 yrs.
the settlement did not fructify.
Remitting the matters to the High Court, HELD: 1.
If the settlement does not fructify, the effect of the decision that the acquisition proceedings are to revive, would be that the claim to the land by Respondent Society would come to an end.
In that event, at the most that Society would only be entitled to such compensation as may be awardable in law.
If the acquisition proceeds the appellant Society and the Municipal Corporation would have to workout their mutual rights.
Apart from these, the two writ petitions challenging the withdrawal of the exemption by order dated 23.6.1983 would also have to be disposed of on merits.
In view of the fact that the owner 's writ peti tion was dismissed not on merits but on other considera tions, the said dismissal should be vacated and that writ petition should be heard along with Writ Petition No. 6500/83 as a common question arises for determination.
The order of the High Court dated 13th of June, 1988, is set aside and the High Court is directed to dispose of the Writ Petition afresh on merits.
[787B D] 2.
If the High Court is of the opinion that the matter should be settled and the entire land of the owners amount ing to 18 acres and 3 gunthas should be divided between the two Societies, it will be free to do so if Government also agrees thereto.
Since that arrangement would be with the consent of the State Government it would in such an event be open to the High Court to nullify the acquisition.
The observations made at different stages during the pendency of the proceedings in this Court may not be taken to be expres sion of opinion on merits and the High Court would be free to deal with the matter on its own discretion and in accord ance with law.
[787F G] 3.
In the event of the settlement not coming through, the acquisition proceedings would continue under the law and be concluded by the Land Acquisition Officer in accordance with law.
In the event of the acquisition working out, the two writ petitions against the withdrawal of exemption would not be sustainable as the land would vest in Government as a result of acquisition.
It would be open to the Government or the acquiring authority to take into account the effect of the laws of urban ceiling.
[787H; 788A] 4.
The civil appeals are also remitted to the High Court limited to 784 the consideration of the proposals ' for settlement in the light of the observations made in this Judgment.
Otherwise, they must be taken to have been concluded in this Court on the finding that acquisition proceedings are valid and shall be entitled to continue.
The special leave petition is disposed of with a direction that the writ petition in the High Court shall be re heard.
The transferred writ petition remitted to the High Court for disposal, [788B C] 5.
Money, if any, in deposit in the Registry of this Court to the credit of the parties shall be transferred to the High Court and shall be subject to such directions as the High Court may issue upon a final decision of the rele vant issues arising in the proceedings.
[788D]


judgement:
vil Appeal No. 3 169 of 1981.
From the Judgment and Order dated 7.5.1981 of the Alla habad High Court in Second Appeal No. 1018 of 1974.
Jagan Mohan Rao and R. Ramachandran (N.P.) for the Appellant.
Subodh Markandeya, Mrs. Chitra Markandeya, W.A. Nomani and G.S. Giri for the Respondent.
779 The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.
This is a case where an order of dismissal passed in a departmental enquiry was challenged in civil court and ultimately has found its way to this Court after a long litigation for over 16 years.
The re spondent was a bus conductor in U.P. State Road Transport Corporation (Corporation ' for short).
A trap was laid against him and a disciplinary enquiry was initiated and dismissal order was passed on 23rd March, 1965.
He filed a civil suit questioning the same.
One of the main plea taken by the respondent was that certain important documents were not made available to him during the enquiry and this caused serious prejudice to him.
The trial court dismissed the suit and an appeal preferred by him was also dismissed by the appellate court.
Relentless as he was, he carried the matter to the High Court by way of second appeal and his plea was accepted by the High Court and the second appeal was al lowed.
Aggrieved by the said judgment, the Corporation has approached this Court.
On behalf of the Corporation it is contended that the High Court has grossly erred in interfering in a second appeal with the concurrent findings and that the plea of the respondent that relevant documents were not supplied to him during the enquiry has no substance.
One of the main issues framed before the trial court was whether all the way bills, carbon copies of the tickets issued on the said dates and carbon copy of checking report were not shown to the delinquent employee by the investigat ing officer and if so what would be its effect? The charge against the respondent was that he erased the waybills and resold some already sold tickets.
During the enquiry the delinquent employee was permitted to inspect the documents but he intended to inspect the carbon copies and made a request by way of a letter.
However, the carbon copies of the way bills dated 7th, 8th and 10th January, 1963 which are the relevant dates and carbon copies of the checking report were not shown to him.
The plea of the delinquent employee has been that from the carbon copies he would have shown that he could not have carried on such erasure or made false entries and non supply of them had caused great preju dice.
As already mentioned, the trial court as well as the first appellate court did not accept this plea and held that no prejudice was caused inasmuch as he was shown the origi nals and also on the ground that he did not later insisted on those carbon copies being shown to him.
The High Court, however, in an elaborate judgment referred to the various documents 780 and it ultimately reached the conclusion that the important documents have been purposely withheld which resulted in prejudice to the employee.
In this appeal, the learned counsel for the Corporation contended that where failure to produce the carbon copies of some of the documents did not cause any prejudice and that at any rate it is a question of fact, the High Court erred in interfering in the second appeal.
To satisfy ourselves we wanted to peruse the judg ments of the trial court as well as of the first appellate court but the Corporation has not placed a copy of the appellate court judgment before us.
We have perused the trial court judgment and we find at more than one place that the learned District Munsif has observed that the employee could have insisted on production of these documents.
The High Court no doubt has considered this aspect in detail and in doing so has referred to the contents of the various documents.
From this alone it cannot be said that the High Court has not kept in view the scope of second appeal.
Since the employee has been throughout pleading that he did not make the erasures or any other false entry, it naturally became necessary to see whether they were also found in carbon copies.
From this point of view the High Court con sidered the various figures and entries in the originals in which such erasures and entries are alleged to have been made by the employee and eventually observed that the entire enquiry was based on some of these documents and if a carbon copy of the way bills had been shown, the authority may well have been convinced that the charge levelled against him was not correct, and that, therefore the non supply of these documents has caused prejudice.
Having examined the findings arrived at by the High Court, we are unable to say that the High Court has committed any error which warrants interfer ence under Article 136 of the Constitution.
The High Court decreed the suit for pendente lite and future pay and allowances and this was passed on 7th May, 1981.
It can therefore be seen that for the last 25 years this litigation went on i.e. from the date of dismissal till today.
Admittedly the respondent has already reached the age of superannuation some years ago.
During these years the respondent must have sought some employment or the other and the learned counsel also could not seriously dispute the same.
Under these circumstances the question is whether again the parties should be driven to go through the indefi nite execution proceedings.
On the question of granting lump sum amount towards the backwages and allowances till the date of his retirement we have also heard both sides.
Under somewhat similar circumstances this Court in Sohan Singh vs Union of India and Another, granted lump 781 sum amount instead of driving the parties to go to the executing court for further relief.
That was a case where the service of an airman in the Air Force was not extended for a period of six years as per the regulation and the matter ultimately came up before this Court.
Taking into consideration the facts and circumstances this Court held that the employee should be compensated by payment of a lump sum amount in lieu of the benefits to which he would have been otherwise entitled if he had continued in service for the extended period of six years.
Without going into the merits of the actual claim this Court awarded a sum of Rs.35,000 by way of compensation.
In the instant case also we are of the view that ends of justice require that such a relief should be granted.
Taking into consideration all these aspects including that the respondent would have been entitled for some retirement benefit, we award Rs.35,000 and direct the U.P. State Road Transport Corporation, the appellant herein, to pay this amount to the respondent within two months from today.
Since the amount would be received in lump sum by the respondent, it may attract the levy of income tax.
But since the amount represents the salary and allowances over the last so many years the respondent may make an application under Section 89 of the Income Tax Act for spreading over this lump sum amount.
We may also point out that in similar circumstances, this Court, in Sundaram Motors Pvt. Ltd. vs Ameerjan and Another, where the compensation by way of lump sum amount was awarded, observed that the same should be spread over and gave a direction to the concerned Income Tax Officer to give immediate relief under Section 89 with out further enquiry.
Accordingly We direct the Corporation to pay the lump sum amount of Rs.35,000 without deducting income tax.
Since the respondent is entitled for relief under Section 89 of the Income Tax Act, he shall make an application to the concerned Income Tax Officer who shall give the necessary relief without any further enquiry.
The appeal is disposed of accordingly.
In the circumstances of the case there will be no order as to costs.
N.P.V. Appeal disposed of.

summary/full:
The respondent, a bus conductor in the appellant State Road Transport Corporation, was dismissed on the charge that he had erased the way bills and resold some already sold tickets.
He filed a suit challenging the dismissal order on the ground that carbon copies of certain important documents were not made available to him during the enquiry and this had caused serious prejudice to him.
The trial court dis missed the suit and the first appellate court also dismissed his appeal.
However, the High Court allowed his second appeal, and held that the important documents had been purposely withheld, which had resulted prejudice to the employee.
The appellant Corporation filed a Special Leave Petition before this Court, contending that the High Court had gross ly erred in interfering in second appeal with the concurrent findings, and that the failure to produce the carbon copies of some of the documents did not cause any prejudice and.
at any rate, it was a question of fact.
Disposing of the appeal, by special leave, this Court, HELD: 1.
The High Court has not committed any error which warrants interference.
1780E] The respondent 's plea has been that from the carbon copies he would have shown that he could not have carried on the erasures or made false entries and, therefore; non supply of these carbon copies had caused great prejudice to him.
However, the trial court and the first appellate court held that no prejudice was caused since he was 778 shown the originals.
The High Court no doubt has considered this aspect in detail and in doing so referred to the con tents of various documents.
From this alone it cannot be said that the High Court has not kept in view the scope of second appeal.
[779G H; 780A B] Since the employee has been throughout pleading that he did not make the erasures or any other false entry, it naturally became necessary to see whether they were also found in carbon copies.
Therefore, the High Court considered the various figures and entries in the originals in which such erasures were alleged to have been made by the employee and eventually observed that the entire enquiry was based on some of these documents, and if a carbon copy of the docu ments had been shown, the authority may well have been convinced that the charge levelled against him was not correct, and that, therefore, the non supply of these docu ments had caused prejudice.
[780 D E] 2.
The litigation is going on for the last 25 years and the respondent has already reached the age of superannua tion.
Hence the parties need not be driven to go through the indefinite execution proceedings again for backwages and allowances and ends of justice require that a lump sum compensation should be granted.
Accordingly, a lump sum amount of Rs.35,000 is awarded and the amount should be paid to the respondent without deducting the income tax.
The respondent may make an application under Section 89 of the Income Tax Act, 1961 for spreading over this amount, and the concerned Income Tax Officers should also give the necessary relief without any further enquiry.
[780F; 781C E] Sohan Singh vs Union of India & Anr., and Sundaram Motors Pvt. Ltd. vs Ameerjan & Ant., , relied on.


judgement:
Appeal No.793 of 1957.
Appeal by special leave from the judgment and order dated September 20, of the Patna High Court in M.J.C. No. 392 of 1955.
C. K. Daphtary, Solicitor General of India, A. B. N. Sinha and B. P. Maheshwari, for the appellant.
section P. Varma, for respondents Nos.
1,2,6 8 and 10 23. 1958.
November 4.
The Judgment of the Court was delivered by BHAGWATI, J.
This appeal with special leave is directed against the judgment of the High Court of Judicature at Patna dismissing the writ application of the appellant seeking to quash the proceedings in Miscellaneous Cases Nos. 26 and 27 of 1955 before the Industrial Tribunal, Bihar, Patna.
Gaya Sugar Mills Ltd., a Company incorporated in 1934 owned a Sugar Factory at Guraru, District Gaya.
An order for the compulsory winding up of the Company was passed on November 4,1951, and by a subsequent order dated February 1, 1952, one Dhansukh Lal Mehta was appointed liquidator of the Company.
In order to preserve the aforesaid Sugar Mills at Guraru in proper running order and also for the beneficial 256 winding up of the Company the liquidator obtained under section III (b) of the Indian Companies Act sanction of the Court to lease out the said Mills with all the lands, factory and residential buildings and machineries etc.
The Guraru Cane Development and Cane Marketing Union Ltd., were the former lessees of the said mills but on the expiration of their lease, the liquidator obtained from the Court an order on December 3, 1954, sanctioning the lease in favour of Shri Krishna Gyanody sugar Ltd .; the appellant herein, for the period December 5,1954 up to and inclusive of November 14,1955.
The liquidator executed in favour of the appellant lease of the said Mills on December 6, 1954, and handed over possession of the same to the appellant the same day.
The terms and conditions of the lease, in so far as they are material for our purposes provided that the appellant would be put into possession of the leasehold properties in a proper working order and would work and run the factory without any interference or obstruction by or on behalf of the lessor and would appropriate the entire income and profit thereof and the lessor would have no concern with profit or loss made by the lessee in running the said factory and would not be entitled to any sum or amount over and above the rent therein reserved.
The appellant was not to be in any way liable or responsible for any of the liabi lities of the Company or of the liquidator or of the out going lessees incurred whether before or after the appellant entered into possession except those mentioned therein.
The appellant was at its own cost entitled always to install 'any additional or other machinery or machineries and erect god owns or structures for the Purposes of and in connection with the running of the said Mills after intimation to the lessor.
The appellant was not bound to engage any or all of the employees of the lessor or of the" Outgoing lessees or any of the persons who had been working from before except the 18 employees who were mentioned in Cl. 11 of the lease and the appellant also agreed not to retrench any staff already employed at that date in the Factory at Guraru (vide cl.
13(v),of the lease).
The 257 properties demised by the said lease were deemed to be in the control of the Patna High Court and any dispute between the lessor and the appellant in respect of the said lease was to be placed before the said Court for decision and the decision made by the said Court was to be binding on all the parties.
It appears that on December 2, 1954, i.e., 4 (lays before, the execution of the said lease and delivery of possession of the said Mills by the liquidator to the appellant, the; Government of Bihar issued a notification referring certain disputes between the Managements of the, Sugar factories specified in Appendix I thereto and their workmen represented by the Unions specified in Appendix It for adjudication to an Industrial Tribunal of which Shri Ali Hassan, the respondent No. 1 herein, was to be tile sole member.
The terms of the reference stated : " Whereas the State Government is of opinion that ail Industrial dispute exists or is apprehended between the Management of the Sugar factories as specified in Appendix I and their workmen represented by the Unions as specified in Appendix 11 regarding the matters specified in Annexure A ; Now, therefore, in exercise of the powers conferred by section 7 read with sub section (1) of section 10 of the (XIV of 1947) and in supersession of Notification No. III/ DI 14020/54L15146 dated the 1st October, 1954, the Governor of Bihar is pleased to constitute an Industrial Tribunal of which Mr. Ali Hussan shall be the sole member and to refer the said dispute to the said Tribunal for adjudication.
Annexure "A" 1.
Retaining allowance to seasonal employees in Sugar factories in Bihar.
Leave and holidays to the employees including seasonal employees in Sugar factories.
Whether the deduction made in leave and holidays of the employees of the Management of the Sugar factories is unjustified and if so what compensation or relief, the workmen are entitled to 33 258 There were as many as 28 Sugar factories specified in Appendix I and as many as 38 Labour Unions specified in Appendix 11.
The Gaya Sugar Mills Ltd., Guraru was the second item in Appendix I and the Chini Mazdoor Sangh Guraru was mentioned at the third item in Appendix 11.
The respondent No. 1 entered upon the said reference.
Even though Gaya Sugar Mills Ltd., Guraru which was then in liquidation was not specifically described as such in Appendix 1, notice was given to the, liquidator by the respondent No. 1 for January 11, 1955, which was the date fixed for hearing before him.
The said letter however reached the liquidator on January 13, 1955, whereupon by his letter dated January 14, 1955, he informed respondent No.1 about it.
Respondent No. 1 however satisfied himself by merely endorsing on the letter of the liquidator that the hearing had already concluded and nothing further than inquiring of the post office as to the reason of the delay in the delivery of the letter could be done.
Respondent No.1 made his award on February 17, 1955, and it was published in the Official Gazette on February 23, 1955.
The adjudication proceedings which had thus commenced on the date of the reference viz., December 2, 1954, came to a conclusion on the expiry of 30 days of the publication of the award viz., on March 25, 1955, under section 20(3) of the .
It appears that an appeal was taken to the Labour Appellate Tribunal against this award and the appeal was decided on August 31, 1956.
Even though the appellant was in possession of the said Mills under the terms of the lease dated December 6, 1954, no notice was given by respondent No. 1 to the appellant and the appellant therefore could not and did not appear before respondent No. 1.
So far as the appellant was concerned the proceedings before respondent No. 1 were ex parte.
Two applications were, however, made on March 23, 1955, under section 33A of the , one by 15 persons alleging that the appellant had without any reason and without any notice discharged them from employ one by one during the months of January and February 259 1955 and the other by 5 persons alleging that the appellant had changed their conditions of service without any reason, contending that the said discharges and the change in conditions of service had been effected by the appellant during the pendency of the disputes before the Industrial Tribunal aforesaid without the permission of the Industrial Tribunal having been obtained under section 33 of the Act.
These applications were numbered as Miscellaneous Cases Nos. 26 and 27 of 1955 and the appellant received on April 7, 1955, two notices from respondent No. 1, both dated March 25, 1955, informing the appellant about the filing of the two miscellaneous cases and calling upon the appellant to file statements showing cause by April 19, 1955.
The appellant accordingly filed before respondent No. 1 two applications or statements contending inter alia that the application under section 33 A of the , filed by those persons (respondents Nos. 4 to 23 herein) were not maintain.
able and were otherwise fit to be rejected.
It was asserted on behalf of the appellant that the appellant as lessee of the said Mills had strictly complied with the terms and conditions of the lease and there had been no contravention on its part of section 33 of the Act, in regard to any of the workmen concerned in the aforesaid two miscellaneous cases.
It was pointed out that none of the persons who had filed the said applications was comprised in the 18 persons who were specifically mentioned in Cl. 11 of the lease and who were specifically exempted from the operation of the said clause nor were they comprised in the category of members of the staff whom the appellant as lessee, was not entitled to retrench under Cl.
13(v) of the lease, with the result that none of the said clauses of the lease could be said to have been violated by the appellant.
On July 13, 1955, the appellant filed in the High Court of Judicature at Patna a writ application under articles 226 and 227 of the Constitution being Miscellaneous Judicial Case No. 392 of 1955 impleading the Chairman, Industrial Tribunal, Bihar as respondent No. 1, the State of Bihar as respondent No. 2, the liquidator as respondent No. 3 and the applicants in 260 the said miscellaneous cases Nos. 26 and 27 of 1955 pending before the Industrial Tribunal as respondents 'Nos. 4 to 23 for a writ of certiorari quashing the said Miscellaneous Cases Nos. 26 and 27 of 1955, a writ of Mandamus restraining the respondent No. 1 from proceeding with or otherwise dealing with the said miscellaneous cases costs and further and other reliefs.
The main Contentions urged by the appellant in the said petition were: (1) that under each one of the points referred for adjudication, considerable burden was sought to be imposed on the sugar factories concerned ; that all the properties and effects of the Gay Sugar Mills Ltd., were in the custody of the Court as from the date of the order for Winding up viz., November 14,1951 ; that ,the said notification did not purport to include Gaya Sugar Mills Ltd., in that light and did not describe the company as having already gone into liquidation ; that no leave of the Court was obtained before commencing or continuing the proceedings before the Tribunal and in fact the liquidator was neither named as a party nor was any notice given to him of the commencement of the proceedings and that therefore go far as the Gava Stugar Mills Ltd., (In Liquidation) was concerned there was no proceedingly in the eye of the law before respondent No. 1 and as such the Miscellaneous Cases Nos. 26 and 27 of 1955 of which notices had been sent to the appellant were not maintainable; and (2) that no notice of the adjudication proceedings arising out of the aforesaid Notification dated December 2, 1954, " as at any stage given to the appellant who was in possession under the terms of the lease granted by the Court ; that the appellant being lessee under orders and under terms of the lease approved by the Court was liable for breach of the terms of the lease, if any, and that also to the Court alone; that there was no violation of section 33 of the , if the appellant bona fide acted up to the terms of the lease and being itself no party to any adjudication proceedings before any Tribunal or before respondent No. 1 there could be no breach of section 33 of 261 the Act and as such no application under section 33A.of the, Act could be maintained against the appellant.
No affidavit in reply was filed by or on behalf of any of the respondents and the application came up for hearing before Ramaswami, C. J. and Raj Kishore Prasad, J. who delivered the judgment of the Court on September 20, 1956, dismissing the application with costs.
Assuming but without, expressing any opinion that the reference made by the State Government under section 10(1) of the Industrial Disputes Act was a legal proceeding within the meaning of section 171 of the Indian Companies Act the High Court held that section 10(1) of the Industrial , Disputes Act, was not controlled by section 171 of the Indian Companies Act and therefore no leave of the Court was necessary before making a reference of the Industrial Disputes under section 10 (1) of the Industrial Disputes, Act.
It was also of opinion that even though the reference under section 10(1) of the Industrial Dispute Act was made by the State Government on December 2, 1954, and the applicant had taken the lease of the said Mills subsequently i. e., on December 6, 1954, the applicant was an " employer " within the meaning of the term used in sections 33 and 33A of the Act, and that it was not necessary for the application of either of those sections that the employer who discharges or punishes the workmen or who alters the conditions of service of the workmen should be the identical employer concerned in the industrial dispute which is the subject matter of adjudication.
It was sufficient for invoking the provisions of either of those sections that there is the relationship of employer and employee at the time the workman is discharged or punished or at the time his conditions of service are altered to his prejudice.
It was further of opinion that even though the liquidator was not made a party to the reference made by the State Government under section 10(1) of the , the Gaya Sugar Mills Ltd., Guraru was specifically mentioned as one.
of the parties in Appendix I, that the Gaya Sugar Mills Ltd., continued to be a legal personality though an order for winding up had been made and that there 262 fore the Company was properly made a party to the reference under section 10(1) of the Act.
The fact that the notice given to the liquidator on January 11, 1955, might have been received late by the liquidator did not, in the opinion of the Court, make any difference to the position inasmuch as the award of the Industrial Tribunal was made on February 17, 1955, i. e., long after the date of the notice and there was no lack of jurisdiction in the Industrial Tribunal to make the award valid and binding on the Gaya Sugar Mills Ltd., Guraru.
The High Court accordingly rejected the application as stated above.
The applicant applied for leave to appeal to this Court on November 9, 1956, but the High Court refused to grant the certificate on the ground that the proceeding for grant of a writ of certiorari under article 226 is not a civil proceeding within the meaning of article 133 of the Constitution.
The applicant thereupon applied for and obtained from this Court on April 1, 1957, special leave to appeal and the appeal has now come up for hearing and final disposal before us.
The two main contentions which were urged before us by the learned Counsel for the appellant were: (1) that the Gaya Sugar Mills Ltd., Guraru had been taken into liquidation and respondent No. 3 had been appointed the liquidator thereof; that the reference made by the State Government to the Industrial Tribunal on December 2, 1954, involved considerable financial burden on the said Mills and the State Government ought to have obtained the sanction of the Court under section 171 of the Indian Companies Act before making a reference of the industrial disputes to the Industrial Tribunal under section 10(1) of the , qua the said Mills and that not having been done, the reference was bad in law and there was no question of the applicability of either section 33 or section 33A of the Act, and (2) that on a true construction of sections 33 and 33A of the Act, the " employer " therein mentioned could only be the " employer " concerned in the industrial dispute which was the subject matter of reference, that the applicant had taken the lease of the said: 263 sugar Mills on December 6, 1954, 4 days after the date of reference made by the State Government under, section 10(1) of the Act, and that therefore the applicant was not an " employer " within the meaning of the terms as used in section 33 or section 33A of the Act, and even if the allegations made by the applicants in Miscellaneous Cases Nos. 26 and 27 of 1955 before respondent No. 1 were correct, it was not necessary for the applicant to have obtained the permission of the Industrial Tribunal under a. 33 of the Act, and therefore the said applications under section 33A of the Act, filed by res pondents 4 to 23 were not maintainable.
It will be appropriate at this stage to set out the relevant sections of the Indian Companies Act and the (as they then stood) which fall to be considered by us in this appeal.
section 171 (Indian Companies Act): " Suits stayed on winding up order: When a winding up order has been made or a provisional liquidator has been appointed no suit or other legal proceeding shall be proceeded with or commenced against the company except by leave of the Court, and subject to such terms as the Court may impose.
" S.10(1) (Industrial Disputes Act, 1947):Reference of disputes to Boards, Courts or Tribunals: Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing (a) refer the dispute to a Board for promoting a settlement thereof; (b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry or (c) refer the.
dispute or any matter appearing to be connected with or relevant to, the dispute to a Tribunal for adjudication: Provided that where the dispute relates to a public utility service and a notice under section 22 has been given, the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so 264 to do, make a reference under this subsection not withstanding that any other proceedings under this Act in respect of the dispute may have commenced," section 33 (Ibid): Conditions of service etc., to remain unchanged during pendency of proceedings During the pendency of any conciliation proceedings or proceedings before a Tribunal in respect of any industrial dispute, no employer shall (a) alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable, to them immediately before the commencement of such proceedings; or (b) discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute, save with the express permission in writing of the conciliation officer, Board or Tribunal, as the case may be." 33 A (Ibid): Special provisions for adjudication as to whether conditions of service etc., changed during pendency of proceedings: " Where an employer contravenes the provisions of section 33 during the pendency of proceedings before a Tribunal, any employee aggrieved by such contravention, may make a complaint in writing, in the prescribed manner to such Tribunal and on receipt of such complaint that Tribunal shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit its award to the appropriate Government and the provision of this Act shall apply accordingly.
" As to (1): Section 171 of the Indian Companies Act occurs in Part V which relates to the winding up of companies and prescribes that once a winding up order has been made no suit or other legal proceedings shall be proceeded with or commenced against the Company except by leave.of the winding up Court and subject to such terms as the Court may impose.
The Court is in custody of all.
the properties and assets of the Company through the liquidator and is in control of the winding up proceedings with a view to the proper realization of the assets: and, the equitable, 265 distribution thereof amongst the creditors of the Company.
No suit or other legal proceeding can therefore be proceeded with or, commenced against the ' Company except by leave of the Court and such leave is a necessary prerequisite of the prosecution of such legal proceeding.
In order to decide the question of the applicability of section 171 of the Indian Companies Act it has to be ascertained (a) whether the reference in question is a proceeding against the Company, and, if So (b) whether such reference can be said to be a legal proceeding within the meaning of section 171 of the Indian Companies Act.
There has been unfortunately a considerable confusion of thought in the court below and the facts have not been properly appreciated.
The first question to determine was who was the party to the reference.
It appears to have been assumed that the Gay a Sugar Mills Ltd., was a party to the reference and that the only defect in the order of reference was that the liquidator was not made a party to the refer ence.
This difficulty was sought to be got over by holding that the Gaya Sugar Mills Ltd., continued to be a legal personality though an order for winding up had been made, that the Company had not ceased to exist as a legal.
entity, and, therefore, the Company was properly made a party to the reference under section 10(1) of the .
This was, however, not the correct position on a true interpretation of the terms of reference.
The reference was between the managements of the Sugar factories specified in Appendix I and their workmen represented by the Unions specified in Appendix 11.
Gaya Sugar Mills Ltd., Guraru was mentioned as item 2 in Appendix I but it is quite clear that what was intended to be made a party to the reference under this item was the: management of the Sugar factory which belonged to the Company called the Gaya Sugar Mills Ltd., whoever.
that management may be.
The mention of the Company was to indicate and to point out the particular factory whose management for the time being was to be one of the parties to the reference and 34 266 it required to be ascertained who was comprised within the " management " of the Mills.
The State Government could not have been oblivious of the fact that the Company had gone into liquidation and a liquidator of the Company had been appointed by the court and was leasing out the factory to different lessees.
If the Company itself were a party to the reference the liquidator ought to have been mentioned there as such but that apparently was not done for the simple reason that the factory was being worked by the lessees under the terms of the leases duly sanctioned by the court.
The liquidator was therefore not in management of the factory and the only persons who were in management were the then lessees to whom leases were granted by the liquidator with the sanction of the court.
The Industrial Tribunal was obviously in error when it gave notice of the proceedings to the liquidator.
The liquidator was no more in management of the factory and was therefore not entitled to be served with any notice; the then lessees were in management and they were the only parties to whom notice of the proceedings should have been given.
The liquidator no doubt wrote to the Industrial Tribunal that he had received the notice too late for him to attend.
This letter of the liquidator was treated with scant courtesy by the Industrial Tribunal who merely endorsed at the foot of the letter that the hearing had already concluded and nothing further than enquiring of the Post Office as to the reason of the delay in the delivery of the letter could be done.
The Industrial Tribunal proceeded to make its award on February 17, 1955, without having before it the management of the factory, viz., the lessees who had obtained the lease of the said Mills from the liquidator and for all practical purposes the said award was ex parte so far as the lessees who were at the date of the reference in management of the factory and were obviously intended to be a party to the reference were concerned.
The appellant came into management of the factory after the reference and could not at the date of the reference be in contemplation of the State Government as a party and in any 267 event, no notice whatever was given to the appellant ' of the proceedings before the Tribunal.
By no stretch of imagination could it be said that the Company (In Liquidation) was a party to the reference, the said Mills having been given on lease to the lessees who worked the Mills thereafter not for and on behalf of the Company but on their own account, they being responsible for the profit and loss in the working of the Mills.
The Company thus not being a party to the reference the proceedings which were commenced on December 2, 1954, before the Tribunal were not proceedings against the Company (In Liquidation).
This being the position on a true construction of the terms of the notification by which the reference was made the question whether the reference was a legal proceeding within the meaning of section 171 Of the Indian Companies Act does not arise for our decision and we prefer not to express any opinion on that part of the question.
As to (2): The next question to consider is the connotation of the term " employer " as used in sections 33 and 33A of the .
These sections postulate the pendency of a proceeding of an industrial dispute.
It requires two to raise a dispute.
An Industrial Dispute is thus defined in section 2(k) of the Act:,, Industrial dispute " means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non employment or the terms of employment or with conditions of labour, of any person.
If this definition is bodily lifted from section 2 (k) and substituted for the expression " industrial dispute " ,occurring in section 33 and sections 33 and 33A of the Act are then read, it will at once become clear that the employer can be no other than the employer with whom the workers had the industrial dispute and cannot mean merely an employ who discharges or punishes or who alters the conditions of service of the workmen concerned.
If the interpretation adopted by the High Court was correct it would mean that the Industrial 668 dispute which is referred for adjudication to the Industrial Tribunal may have arisen between employer A and his workmen but during the pendency of those proceedings employer B who had nothing to do with employer A would be prevented from discharging or punishing the workmen or altering their conditions of service, provided only that the workmen concerned happened to be interested in the industrial dispute which was pending before the Industrial Tribunal.
If there is no connection at all between the employer A and the employer B in the illustration given above, one fails to see how a mere identity of the establishments or the identity of the workmen could be enough to bring the employer B within the purview of these sections.
The very purpose of the enactment of as.
33 and 33A of the is, as observed by this Court in the Automobile Products of India Ltd. vs Bukmaji Bala (1). " to ensure that proceedings in connection with industrial disputes already pending should be brought to a termination in a peaceful atmosphere and that no employer should during the pendency of those proceedings take any action of the kind mentioned in the sections which may give rise to fresh disputes likely to further exacerbate the already strained relation between the employer and the workmen.
To achieve this object a ban has been imposed upon the ordinary right which the employer has under the ordinary law governing a contract of employment.
Section 22 of the 1950 Act and section 33 of the 1947 Act which impose the ban also provide for the removal of that ban by the granting of express permission in writing in appropriate cases by the authority mentioned therein.
" The scope of the enquiry under section 33 of the has also been the subject matter of adjudication by this Court and it was held in Atherton West & Co., Ltd. vs Suti Mill Mazdoor Union (2) that the authority: " concerned would institute an enquiry and come to the conclusion whether there was a prima facie case (1) [1955] i S.C.R. 1241, 1256.
(2) ; , 787. 269 made out for the discharge or dismissal of the workman and the employer, his agent or manager was not actuated by any improper motives or did not resort to any unfair practice or victimisation in the matter of the proposed discharge or dismissal of the workman.
" A similar ratio would apply where an employer changes the conditions of service of the workmen concerned.
If this be the criterion for determining whether an employer was entitled to discharge or punish the workmen or alter their conditions of service without the permission in writing of the authority concerned that employer cannot be any other than the one who is concerned in the industrial dispute which is the subject matter of adjudication.
If employer B has nothing to do at all with employer A who is really the party concerned in such industrial dispute which is the subject matter of adjudication, there will be no question of attributing any improper motives or unfair practice or victimization to the employer B in regard to the action which he proposed to take against the workmen.
Whether the employer B would be entitled to such action or not would have to be determined in other proceedings which may be taken in the matter of industrial disputes which may subsequently arise between himself and his workmen after such action was taken.
But he would certainly not be bound before taking such action to seek the permission in writing of the Industrial Tribunal before which an industrial dispute was pending as between those workmen and another employer with whom he had no concern.
The latter interpretation is therefore more in consonance with the principle underlying the enactment of section 33 of the and it must be held that the employer contemplated by sections 33 and 33A of the must be the identical employer concerned in the industrial dispute which is the subject matter of adjudication.
In other words, the employer contemplated by sections 33 and 33A of the must be the employer with whom the workmen mentioned as aggrieved under section 33 had a subsisting relationship of employer 270 and employees at the commencement of the proceedings referred to in those sections.
The identity of the employer at the commencement of the reference with the employer who intends to take proceedings within the ban of section 33 of the Act must be established and if the latter has no concern with or relationship with the former sections 33 and 33A of the Act do not dome into operation at all.
Such identity could in the event of change in the employers be established by showing that the latter employer was merely a nominee or Benamidar of the former or that on the analogy of section 18(3)(c) of the he came with in the description of " his heirs, successors or assigns in respect of the establishment to which the dispute relates, in which event the award made by the Indus.
trial Tribunal would be binding on him just as much as on the former employer of the workmen concerned.
These are, however, the only cases in which according to the provisions of the the identity of the employers at the commencement of the proceedings and the intended discharge or punishment or change in the conditions of service of the workmen concerned could be established and unless the employer who intended to discharge or punish or change the conditions of service of the workmen was in this sense identical with the employer who was concerned in the industrial dispute which is the subject matter of adjudication no question could arise of the operation of section 33 or section 33A of the .
What then was the position of the appellant under the reference in question ? It does not appear from the record as to who was the management of the said Mills on December 2, 1954.
The lease in favour of the old lessees, Guraru Cane Development and Cane Marketing Union Ltd., had apparently come to an end by efflux of time, the period of the lease presumably being up to the end of the crushing season which would end some time in the month of November, 1954.
An application had been made by the liquidator to grant a lease in favour of the appellant and this application was granted by the Court on December 3, 1954, so that in any event before December 3, 1954, the appellant could 271 not be said to be in management of 'the said Mills.
As a matter of fact, the lease was executed in favour of the appellant on December 6, 1954, and the possession of the said Mills was also given to the appellant by the liquidator on the same day.
It could not, therefore, be said that the appellant was comprised within the description of the management of the Gaya Sugar Mills Ltd., at the date when the reference was made by the State Government.
If that was so, a reference Of a previous date, without anything more, could not comprise the appellant within its scope and that appears to have been the position as understood even by the Industrial Tribunal which gave no notice to the appellant but gave notice of the proceedings erroneously as we hold to the liquidator of the Company.
The appellant was not in management of the said Mills and it could not be bound by the reference because at no stage was any attempt made either to amend the terms of the reference or even to serve on the appellant a notice of the proceedings which were to take place before the Industrial Tribunal.
Under the Industrial Disputes (Central) Rules, 1947, enacted by the Central Government in exercise of the powers conferred upon it by section 38 of the , intimation of the place and time of hearing had got to be given to the parties to the reference (Rule 10); and the Industrial Tribunal was enjoined to call upon the parties at the first sitting to state their case (Rule 11) the only power given to the Industrial Tribunal to proceed ex parte was when a party to the proceedings failed to attend or to be represented without good cause shown (Rule 19) ; and the representatives of the parties appearing before an Industrial Tribunal were to have the right of examination, cross examination and of addressing the Tribunal when evidence had been called (Rule 24) : The 'whole of this procedure envisaged the parties to the reference being properly notified of the proceedings before the Industrial Tribunal and taking part therein either by themselves or through, their authorised representatives.
The fact that no such notice was given to the appellant by the Industrial Tribunal goes to show that in the circum 272 stances that obtained the appellant was certainly not understood by the Tribunal as having been a party to the reference and it could not be said on the terms of the reference itself which was made on December 2, 1954, that the appellant, which came into existence as the lessees of the said Mills on December 6, 1954, was a party to the said reference.
If the old lessees were in management of the said Mills on December 2 1954, there was no identity of employers as between them and the appellant, the appellant certainly did not claim under the old lessees nor could it be described as their " heirs, successors or assigns " in respect of the establishment to which the dispute related within the meaning of section 18(3) (c) of the , There is no suggestion whatever that the appellant was or is a benamidar of the previous lessees.
In no event could the appellant therefore be held to be, bound either by the reference or the award made by the Industrial Tribunal, the identity of the employers at the date of the reference with the employers at the time when the acts complained of in the applications under section 33 A of the were purported to be done by them not having been established.
If that is the true position, no question of the appellant obtaining written permission of the Industrial Tribunal under section 33 of the Act for discharging or punishing or for effecting a change in the conditions of service of the workmen concerned could arise.
If no such permission were needed, section 33A of the Act also could not come into operation and the applications in Miscellaneous Cases Nos. 26 and 27 of 1955 we 're not maintainable.
The result is no doubt unfortunate ; because the Industrial disputes which were referred to the Industrial Tribunal by the reference in question were general in their nature and would comprise within their scope the workmen who were working in the Gaya Sugar Mills Ltd., at all relevant times.
The appellant came in management of the said Mills from and after December 6, 1954, and it was certainly intended that these, disputes which had either existed or were apprehended between the appellant on the one hand and the workmen 273 working in the said Mills on the other should be adjudicated upon under the terms of that reference.
If the appellant could be comprised within the description of the " management " of the said Mills at the date of the reference, viz., December 2, 1954, the object and the purpose of the reference qua the workmen of the said Mills would be accomplished.
The difficulty, however, is that the several managements which would come into existence on successive leases being granted by the Court in the present case cannot be said to have been comprised within the term "managements of the Sugar factories specified in Appendix I" even though the Gaya Sugar Mills Ltd., Guraru is mentioned as item 2 therein.
Such a construction would make the several successive lessees who came into existence during the whole of the period when the reference was pending before the Industrial Tribunal parties to the reference involving fresh notices to be issued, fresh statements of case to be furnished, fresh hearing to be granted, to each of the successive lessees under the Industrial Disputes (Central) Rules, 1947, a result which certainly could not have been contemplated by the State Government when the reference was made.
It, therefore, follows that the appellant was not by any count a party to the reference dated December 2, 1954, and not being such a party was not an "employer" within the meaning of sections 33 and 33 A of the qua the workmen who filed the applications in Miscellaneous Cases Nos. 26 and 27 of 1955.
If the workmen felt that they have been victimised or that there had been an unfair labour practice, they could perhaps raise fresh industrial disputes and press the State Government to make a fresh reference of their industrial disputes under section 10(1) of the Act, as to which we say nothing, but it is quite clear to us that the workmen cannot in the circumstances of this case raise an industrial dispute indirectly by having recourse to an application under section 33 A of the Act.
In the premises if the appellant was not bound, as we hold it was not, to ask for the written permission of the 35 274 Industrial Tribunal before discharging, punishing or effecting a change in the conditions of service of the workmen concerned no application under section 33 A of the Act could be maintained against it even on the assumption that the allegations made in the said applications were correct.
The result, therefore, is that the proceedings in Mis cellaneous Cases Nos. 26 and 27 of 1955 before the res pondent No. 1, Industrial Tribunal, Bihar, Patna are without jurisdiction and liable to be quashed.
The appeal of the appellant will therefore be allowed, the order made by the High Court on September 20, 1956, will be set aside and a writ of certiorari will issue against respondent No. 1 quashing the proceedings in the said Miscellaneous Cases Nos. 26 and 27 of 1955.
The appellant will be entitled to its costs throughout against the contesting respondents.
Appeal allowed.

summary/full:
Gaya Sugar Mills Ltd. went into liquidation and the sugar factory owned by it was leased out to the appellant by the liquidator with the permission of the Court on December 6, 1954, to be worked in terms of the lease which provided, inter alia, that the lessee would neither be liable for any of the liabilities of the company, or of the liquidator or the outgoing lessees nor bound to engage any of their employees or those working from before except those specifically mentioned in the lease.
On December 2, 1954, i.e. four days before the appellant came into possession of the sugar factory, the Bihar Government issued a notification referring a dispute between the managements of certain specified sugar factories, including Gaya Sugar Mills Ltd., and their workmen represented by their Unions, for adjudication to the Industrial Tribunal constituted by the respondent No. i. No notice was given to the appellant and proceedings against it were all exparte.
Complaints, however, were made before the Industrial Tribunal by two batches of workmen against the appellant under section 33A of the Industrial Disputes Act alleging in one case that they had been discharged and in the other that the conditions of their service had been changed by the appellant without first obtaining the permission of the Tribunal under section 33 Of the Act.
It was asserted on behalf of the appellant that there was no breach of the terms of the lease and no contravention of section 33 Of the Act.
After unsuccessfully moving the High Court under articles 226 and 227 Of the Constitution for a writ of certiorari quashing the said proceedings, the appellant came up to this Court by special leave and it was contended on its behalf that (1) no leave of the Court having been obtained under section 171 Of the Indian Companies Act by the State Government before it made the reference under section 10(1) of the Industrial Disputes Act, the reference was bad in law and that (2) the word 'employer ' in sections 33 and 33A of the Industrial Disputes Act meant only such employer as was actually concerned with the industrial dispute which was the subject matter of the reference and the appellant having come into possession of the Mills after the reference, could not be an employer within the meaning of those sections.
255 Held, that the terms of the notification properly construed clearly showed that what was sought to be made a party to the reference was not the company itself but its management at the date of the reference and, therefore, no question of leave of the court under section 171 Of the Indian Companies Act could arise.
The word 'employer ' occurring in sections 33 and 33A of the Industrial Disputes Act meant the identical employer concerned with the industrial dispute, which was the subject matter of the adjudication, and could not include an employer who merely happened to discharge or punish or alter the conditions of service of workmen unless such employer could be shown to be a mere nominee or bentamiday of the former or fell within the category of his heirs, successors or assigns within the meaning Of section 18(3)(c) of the Act.
Since, in the instant case, the appellant satisfied none of these tests, it was not bound to seek the permission of the Tribunal under section 33 Of the Act and the proceedings under section 33A of the Act against it must be quashed.