judgement:
Civil Appeals No. 2815 & 2816 of 1980.
110 Appeals by special leave from the Award dated the 3rd September, 1980 of the National Industrial Tribunal at Bombay in Complaint No. NTB 2 and NTB 3 of 1980 arising out of Reference No. NTB 1 of 1979.
WITH CIVIL APPEAL NO.
2607 of 1980 Appeal by special leave from the Award dated the 3rd Sept. 1980 passed by the National Industrial Tribunal, Bombay in Complaints Nos.
NTB 2 & 3 of 1980 in Reference No. NTB 1 of 1979.
AND CIVIL APPEAL NO.
3150 of 1980 Appeal by Special leave from the Award dated 3rd September, 1980 passed by the National Industrial Tribunal, Bombay in Complaints Nos.
NTB 2 & 3 of 1980 in Reference No. NTB 1 of 1979.
F.S. Nariman R.A. Shroff, H.S. Parihar and Shradul section Shroff, for the Appellant in CAS 2815 16/80, for Respondent No. 2 in CA.
2607/80 & for Respondent No. 1 in C.A. 3150/80.
C. N. Murthy and P. P. Mittal for Respondent No. 1 in CA.
2815 16/80.
M.K. Ramamurthy, P.S. Khera and S.K. Dawar, for RR 2 70 in CAS.
2815 16/80, for Respondent No. 3 in CA 2607/80 & for Respondent Nos. 3 & 40 67 in CA.
3150/80.
K.K. Venugopal, C.N. Murthy and P.P. Mittal 1980 for the Appellants.
A.K. Sen, A.K. Gupta, Brij Bhushan, N.P. Mahendra and Miss Renu Gupta, for the Appellants in CA.
3150/80.
S.K. Bisaria for RR.
2 4 and 6 39 in CA.
3150/80.
The Judgment of the Court was delivered by GUPTA, J.
These are four appeals by special leave from an Award of the National Industrial Tribunal, Bombay, made on September 3, 1980 disposing of two complaints under section 33 A of the holding that the employer, 111 Reserve Bank of India, Bombay had changed to the prejudice of the complainants their conditions of service by modifying the existing scheme of promotion during the pendency of a reference before the Tribunal and had thereby contravened the provisions of section 33 (1) (a) of the Act.
Civil Appeals 2815 and 2816 of 1980 have been preferred by the Reserve Bank of India, Bombay.
In civil appeal 2607 of 1980 the appellants are some of the stenographers employed in the Bombay office of the Reserve Bank of India.
The four appellants in civil appeal 3150 of 1980 are also employees of the Reserve Bank of India, Bombay, one of whom is a clerk grade I and the other three are officiating as staff officers grade A.
How the appellants in Civil Appeals 2607 and 3150 are affected by the Award will appear from the facts stated below.
The facts leading to the making of the complaints under section 33 A are as follows.
On June 16, 1979 the Government of India, Ministry of Labour, in exercise of powers conferred by section 7B of the constituted a National Industrial Tribunal with headquarters at Bombay and referred to it for adjudication an industrial dispute existing between the Reserve Bank of India and their class III workmen.
The dispute as described in the schedule to the order of reference related to "specific matters pertaining to class III workmen" enumerated in the schedule.
The schedule listed 35 matters in all, item No. 12 of which is described as 'Promotion '.
On May 13, 1972 appellant Reserve Bank of India, Bombay, had issued Administration Circular No. 8 introducing a revised scheme for promotion of employees as Staff Officers Grade A.
This Circular No. 8 prescribed as a condition for promotion passing a test consisting of three papers on the following subjects: noting, drafting, precis & essay writing, (ii) Reserve Bank of India Act, and (iii) functions and working of the Reserve Bank of India.
Candidates with less than 15 years ' service in class III cadre at the time of the test and who had not passed in the subjects 'Practice and Law of Banking ' and 'Book keeping and Accounts ' in Part I of the Institute of Bankers Examination were to appear and pass in an extra paper divided into two parts on the aforesaid two subjects.
Candidates who had passed in either or both these subjects in part I of the Institute of Bankers Examination were exempted from appearing in the corresponding part or both parts of this paper.
The circular further provided that an estimate of the vacancies anticipated to occur in each office during a 'panel year ' i. e. from September 1 to 112 August 31, was to be declared by the Bank in advance and the number of candidates in that office to be called for the test to fill the vacancies in that office was not to exceed twice the number of such vacancies.
A candidate who had been unsuccessful in more than one test was to be treated as a repeater and the number of such repeaters sitting for a test would be in addition to the aforesaid number of candidates.
An employee in the substantive rank of teller, stenographer grade II, stenographer grade I or personal assistant was eligible to appear in the test under this circular provided he had put in a minimum period of 15 years ' service in class III cadre.
A further condition relating to these three types of employees, tellers, stenographers and personal assistants, was that they could be called to appear in the test only if a clerical candidate of the same length of service found a place within twice the number in the combined seniority list.
The said three types of employees were required to pass both parts I and II of the Institute of Bankers examination, or if they were graduates, in part I only.
Those of them who would pass the test were to be posted on the clerical desk for one year for acquiring experience and thereafter they were to be absorbed in the next list to be prepared on the result of the test succeeding the one in which they had passed.
They were to rank in seniority below the juniormost successful candidate in the test in which they qualified.
A further requirement was that the stenographers and personal assistants should have worked for at least 5 years as such; this condition was thought necessary because it was possible that some of them may have been employed as typists for some time.
Feeling that the aforesaid circular No. 8 adversely affected them, the Stenographers filed a writ petition in the Andhra Pradesh High Court challenging the validity of the circular.
The main grievance seems to have been that by the said Circular No. 8 they were placed en bloc below the clerks which made the chances of promotion so far as they were concerned illusory.
The Andhra Pradesh High Court dismissed the writ petition with the following observations: ". .the clerks and the stenographers who have passed at the qualifying written examination do not acquire any right to promotion by merely being put in a panel.
As observed by the Supreme Court in the case cited in Gangaram vs Union of India, A.I.R. 1970 S.C. 2178, the effect of passing at the qualifying examination is only 113 to remove a hurdle in their way for further promotions to the posts of staff officers, grade II.
In the matter of actual promotion there is nothing illegal in the department promoting the clerks as a group in the first instance and postponing the promotions of the stenographers to a later stage. .It is urged on behalf of the petitioners that previous to the new scheme, the stenographers were placed at the top of the clerks en bloc and that they have now been brought to the bottom.
This argument is based upon a misconception that the panel creates any rights.
Hence nothing turns upon the place fixed in the panel".
The High Court however made certain recommendations "to avoid frustration and dissatisfaction among the stenographers".
It was suggested that "the Reserve Bank may frame suitable rules for fixing the seniority among the staff officers, grade II, on some rational and equitable principles, i.e., by length of service or marks obtained at the qualifying examination or by adopting a reasonable ratio between the two classes, so that the chances of further promotions for the stenographers may not be illusory".
This judgment was delivered on March 5,1973.
In the months of March and November, 1973 charters of demand were submitted respectively by the All India Reserve Bank Workers Organisation and the All India Reserve Bank Employees Association.
The latter Association is the one which is recognised by the Bank.
On January 23, 1976 by Administration Circular No. 5 the Bank modified Circular No. 8 to remedy the alleged adverse effect suffered by the stenographers as a result of Circular No. 8.
On June 16, 1979 the order referring to the National Tribunal at Bombay the dispute between the Bank and the class III workmen was made.
The All India Reserve Bank Employees Association filed a writ petition in the Calcutta High Court in July 1979 challenging this order of reference.
The High Court at Calcutta issued an injunction restraining the National Tribunal from adjudicating on the reference until the writ petition was disposed of.
A settlement was thereafter reached between the Bank and the All India Reserve Bank Employees Association and the injunction was vacated.
On November 21, 1979 the Bank and the Association applied to the Tribunal jointly for making an award on the basis of the settlement.
In the meantime on October, 10, 1979 the impugned Circular No. 6 was issued.
The following changes were introduced by Circular 114 No. 6 in the scheme of promotion set out in Circular No. 8 relating to personal assistants, stenographers, tellers and the clerical staff: (1) The eligibility period so far as these three types are concerned was reduced from 15 years to 10 years service.
(2) The condition requiring stenographers and personal assistants to put in 5 years service as such was dispensed with.
(3) Their period of training on clerical desk was reduced from 1 year to six months.
(4) They were to be fitted according to the length of their service in the panel for the year in which they passed the test and not in the next panel as before.
(5) Those who are graduates among these three groups, even if they had not passed in all the subjects in part I of Indian Institute of Bankers examination, would be eligible for exemption from appearing in the additional paper on 'Practice and Law of Banking ' and 'Book keeping and accounts ' if they had passed in these two subjects in the said examination.
(6) This benefit of exemption which was available to the clerical staff of 15 years ' standing previously was extended to those of them who had put in only 10 years service.
The two complaints (complaint Nos. 2 and 3 of 1980) on which the impugned award has been made were filed respectively on July 22, 1980 and August 1, 1980.
The complainants who were clerks grade I had passed the test in the panel year 1978 79 and were empanelled for promotion to the post of staff officer grade A.
The grievance made in the two complaints is that the result of the changes introduced in the promotional scheme by Circular No. 6 relaxing for the stenographers and personal assistants the conditions they were required to satisfy to be able to sit for the test and permitting them to be fitted according to the length of their service in the panel for the year in which they had passed the test, was that many who could not have been considered for promotion in preference to the complainants had circular No. 8 been in force, would 115 now be entitled to a higher preference.
According to the complainants the alterations made during the pendency of the reference before the National Tribunal amounted to changing their conditions of service to their prejudice in violation of section 33 (1) (a) of the .
The complainants in complaint No. 2 of 1980 stated that if the alterations introduced by Circular No. 6 were allowed to continue "the chances of promotion would become bleak for them '; complainants in complaint No. 3 of 1980 also expressed a similar apprehension that as a result of the changes introduced "their chances of promotion would recede further and further".
The appellants in civil appeal 2607 of 1980 who are stenographers acquired eligibility to appear in the qualifying test because of the modifications introduced in the existing scheme by Circular No. 6.
All the four appellants in civil appeal 3150 of 1980 are from clerical cadre, three of whom are officiating as staff officers grade A; they are also beneficiaries of the relaxations made in the existing scheme by circular No. 6.
The appellants in both these appeals are obviously affected by the Award allowing the complaints and declaring circular No. 6 as invalid.
Section 33 (1) (a) prohibits the employer during the pendency of a proceeding in respect of an industrial dispute before a Labour Court or Tribunal or National Tribunal from altering to the prejudice of the workmen concerned in the dispute their existing conditions of service.
Sub section (2) of section 33, however, permits the employer to alter the conditions of service in regard to any matter not connected with the dispute in accordance with the standing orders applicable to the workman concerned or in accordance with the terms of the contract between the employer and the workman.
The right given to the employer under sub section (2) is subject to the condition laid down in sub section (3) of section 33 that the right can be exercised only with the express permission in writing of the authority before which the proceeding is pending.
Section 33 A of the Act provides that where an employer contravenes the provisions of section 33 during the pendency of proceedings before a Labour Court, Tribunal or National Tribunal any employee aggrieved by such contravention may make complaint in writing to such Labour Court, Tribunal or National Tribunal, and on receipt of such complaint the Labour Court, Tribunal or National Tribunal shall adjudicate upon the complaint as if it were a dispute referred to it or pending before it in accordance with the provisions of the Act and submit its award to the appropriate government.
Section 31 (1) of the Act provides for penalty for contravention of the provisions of section 33; an 116 employer found guilty of such contravention is punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees or with both.
In this case circular No. 6 was not introduced with the permission of the National Tribunal, Bombay, before which the reference was pending; to determine whether thereby the provisions of section 33 have been contravened, the question that requires to be answered is whether the alterations introduced by Circular No. 6 are connected with the dispute pending in reference before the National Tribunal.
This again leads to the question, what was the dispute that was referred to the National Tribunal for adjudication? According to the complainants their promotional prospects were adversely affected by the impugned circular.
Item 12 of the schedule annexed to the order of reference is described as 'Promotion '.
Demand No. 19 in the charter of demands presented by the All India Reserve Bank Employees Association mentions 'Promotional avenues ' but, as the National Tribunal itself noticed, the matters specified under the head 'promotional avenues ' relate to the creation of more promotional posts and the upgrading of certain posts.
Demand No. 19 does not thus relate to the promotional scheme in question.
The impugned award also refers to demand No. 27 of the charter of demands submitted by the All India Reserve Bank Workers organisation.
Demand No. 27 is described as 'Promotional Policy ' and all that is said in the charter of demands under this head is that the matter "should be discussed and finalised on the basis of pre requisites of promotional policy submitted in 1969".
It is not therefore clear how demand No. 27 could have a connection with the promotional scheme set out in circular No. 6 issued in 1979.
The award does not refer to the statements of claim filed on behalf of the workmen; it is likely that because of the order of injunction issued by the Calcutta High Court to which we have earlier referred, the unions representing the workmen were not able to file their statements of claim before the National Tribunal disposed of the complaints under section 33A.
The Tribunal however held: " contemplates reference in wider terms than the actual item in dispute.
Section 10 (IA) of the which provides for the appointment of the National Tribunal shows that the Central Government could form its opinion not only on the existing dispute but also on the apprehended dispute and the order of reference can cover not only the dispute but any matter appearing to be connected with or relevant to the dispute.
In view of it, it cannot be said that when the item 'Promotion ' has been referred to 117 the Tribunal, it has the limitation of remaining in the frame work of the demand. the Tribunal has the jurisdiction to decide on the natural meaning of the words used in the item of reference.
The item seems to have been deliberately stated in terms. it looks to be referring to the process involving promotions." Having said so the Tribunal added: "The extent of such process will have to be carefully defined because there is no dispute with the axiomatic principle that promotion is a matter in the discretion of the employer".
It is difficult to follow the steps of reasoning in the extract from the award quoted above; it is also not clear how the view expressed therein helps in ascertaining what was the dispute referred to the Tribunal for adjudication.
No one can deny that under section 10 (IA) the Central Government could refer to the National Tribunal an existing or an apprehended dispute; the order or reference in this case however shows that it was not an apprehended dispute but an industrial dispute that "exists between the employers in relation to the Reserve Bank of India and their class III workmen in respect of the matters specified in the schedule" annexed to the order which was referred to the Tribunal for adjudication.
As section 10 (IA) expressly says, any matter appearing to be connected or relevant to the existing or apprehended dispute can also be referred to the National Tribunal for adjudication, but obviously unless it is determined what the dispute was that has been referred for adjudication, it is not possible to say whether a particular matter is connected with it.
The Tribunal thought it unjust to restrict the meaning of the word 'promotion ' to what was suggested by the charters of demand and decided to give it its "natural meaning" which according to the Tribunal includes "the process involving promotion".
The question however remains how did the Tribunal satisfy itself that when by the order of reference a specific matter, namely, 'promotion ' was referred to it for adjudication, it was implied that the word should be given a "natural meaning" in the sense in which the Tribunal understood it.
We do not think it reasonable to suppose that the order of reference required the Tribunal to adjudicate on all possible matters relating to promotion.
We therefore accept the contention of the appellants that the Tribunal should have defined the area of the dispute referred to it for adjudication before proceeding to consider whether the promotional scheme set out in Circular No. 6 could be said to be connected with that dispute.
118 Having reached this conclusion we should have sent the matter back to the National Tribunal for ascertaining the scope of the dispute referred to it for adjudication, if the assumption were correct that the alterations in the promotional scheme introduced by Circular No. 6 amounted to changing the conditions of service of the complainants; if not, remitting the matter to the Tribunal will be unnecessary.
What Circular No. 6 did was to relax for stenographers and personal assistants the conditions they had to satisfy to be able to sit for the test.
If they passed the test, they would get into the penal along with employees belonging to the clerical cadre who also had passed the test.
Vacancies in the post of staff officer Grade A are filled by recruiting employees from the panel.
The panel, it appears from the award, is a permanent one.
How those who come out successful in the test are to be fitted in the panel has been stated earlier.
The panel is made up of employees belonging to different cadres.
It is difficult to see how alteration of the conditions of eligibility governing employees belonging to a particular cadre can amount to changing the conditions of service of employees who belonged to another cadre, assuming for the present that the said conditions were conditions of service.
The changes introduced in respect of the stenographers and personal assistants may have an impact on the promotional prospects of employees from another cadre who are already in the panel or even of those who were expecting to be included in the panel, but it is not possible to agree that this would amount to changing their conditions of service.
It is difficult to think of the conditions of service of an employee as including an implied right to prevent the employer from altering the conditions of service of other employees.
In a given case such alteration may be inequitable, and a way may be found in the to redress the grievance of the employees affected thereby, but in this case the question is whether if amount to altering the condition of service of the complainants.
In Reserve Bank of India vs N.C. Paliwal this Court upheld the validity of the combined seniority scheme introduced by the Reserve Bank for the clerical staff.
The first paragraph of the head note to the report summarizes the facts on which challenge to the scheme was based: "At every centre of the Reserve Bank of India there were five departments, the General Department and four Specialised Departments.
There was a separate 119 seniority list for the employees in each Department at each centre and confirmation and promotion of employees was only in the vacancies arising within their Department at each centre.
There were two grades of clerks in each Department, namely, Grade I and Grade II.
The pay scales of Grade I and Grade II clerks in all the departments were the same and their conditions of service were also identical.
There was automatic promotion from Grade II to Grade I and when a clerk from Grade II was promoted to officiate in Grade I, he got an additional officiating allowance of Rs. 25/ per month.
There were also several categories of non clerical posts in the General as well as Specialised Departments, and their pay scale was the same as that of Grade II clerks.
In view of expanding activities in the Specialised Departments, there were greater opportunities for confirmation and promotion for employees in the Specialised Departments than in the General Department.
This gave rise to dissatisfaction amongst employees in the General Department and they claimed equal opportunities by having a combined seniority list for all the clerks for confirmation and promotion.
The Reserve Bank, sought to justify the separate seniority lists on the ground that the work in each department was of a special nature and inter transferability was undesirable and hard to achieve.
As a result of the recommendation of the National Tribunal.
however, the Reserve Bank introduced the Optee Scheme of 1965 as a first step towards equalization of opportunities.
Under the scheme, the option to go over to the Specialised Departments was confined to confirmed Grade II clerks and officiating Grade I clerks in the General Department.
If he exercised the option, he was eligible to be selected.
If he was selected.
he would be entitled to be absorbed only as Grade II clerk in one of the Specialised Departments with the result that if he was an officiating Grade I clerk in the General Department at the time of the exercise of the option, he would lose the benefit of officiation in Grade I in the General Department as also the monetary benefit of Rs. 25/ .
His seniority in the cadre of Grade II clerks in the Specialised Department in which he was absorbed would be deter 120 mined on the basis of his length of service calculated from the date of his recruitment if he was a graduate when he joined service, or from the date of his graduation if he became a graduate whilst in service.
It was argued in Paliwal 's case that the combined list was invalid because it discriminated against the petitioners vis a vis other grade II clerks who had opted under the optee Scheme of 1965.
This Court held: "The contention of the petitioners was that some of the Grade II clerks who had opted under the optee Scheme of 1965 were promoted as Grade I Clerks, while the petitioners continued as Grade II Clerks and before their turn for promotion could arrive, the Combined Seniority Scheme was brought into force and that prejudicially affected their promotional opportunities and thus brought about unjust discrimination between persons belonging to the same class.
This contention has no force and must be rejected.
We have already discussed and shown that it was competent to the Reserve Bank to introduce the Combined Seniority Scheme for the purpose of integrating the clerical staff in all the departments and the Reserve Bank was not bound to wait until all the transferee Grade II Clerks under the optee Scheme of 1965 were promoted as Grade I Clerks in their respective Specialised Departments.
There was no such assurance given by the Reserve Bank when it introduced the optee Scheme of 1965.
What it did was merely to equalise the opportunities of Grade II Clerks in the General Departments with those of Grade II Clerks in the Specialised Departments.
The Reserve Bank did not undertake that it will not take any steps for bringing about total integration of the Clerical services until all the transferee Grade II Clerks were promoted.
The Reserve Bank was entitled to introduce the Combined Seniority Scheme at any time it thought fit and the validity of the Combined Seniority Scheme cannot be assailed on the ground that it was introduced at a time when some of the transferee Grade II Clerks still remained to be promoted and was discriminatory 121 against them.
It may be that some transferee Grade II Clerks had already obtained promotion as Grade I Clerks by the time the Combined Seniority Scheme was introduced, while others like the petitioners had not.
But that cannot be helped.
It is all part of the incidence of service and in law, no grievance can be made against it." These observations in Paliwal 's case are equally applicable to the case before us.
It was competent for the Bank to introduce a combined promotional scheme for the clerical staff, stenographers, and personal assistants and the Bank was not bound to wait until all employees belonging to the clerical cadre whose names were already in the panel when circular No. 6 was introduced had been promoted as staff officers Grade A.
There was no such assurance given by the Bank when it introduced circular No. 8 on which the complainants rely.
The Bank did not undertake that it would not take any step to change the conditions the stenographers and the personal assistants were required to satisfy to be able to appear in the test until all the clerks already empanelled were promoted.
Circular No. 6 cannot therefore be assailed on the ground that it was introduced when some employees belonging to the clerical grade whose names were already in the panel remained to be promoted.
That cannot be helped, and, as observed in Paliwal 's case, "it is all part of the incidence of service and in law no grievance can be made against it".
Being in the panel in any particular year does not ensure a fixed place in the panel for an employee until he is promoted.
It may be recalled that in 1964 and again by circular No. 8 in 1972 the stenographers conditions of service were altered to their prejudice.
The right the complainants now claim is based on the change in the conditions of service of the stenographers made to their detriment earlier.
The grievance of the complainants really relates to the changes affecting their chances of promotion.
We have earlier quoted from the charters of demand to show that the complainants themselves looked upon the alterations made by circular No. 6 as affecting their "chances of promotion".
It is well settled that a rule which affects the promotion of a person relates to his condition of service but this is not so if what is affected is a chance of 122 promotion only.
This Court in Mohd. Shujat Ali and others etc.
vs Union of India & Ors. etc.
held: "But when we speak of a right to be considered for promotion, we must not confuse it with mere chance of promotion the latter would certainly not be a condition of service. that though a right to be considered for promotion is a condition of service, mere chances of promotion are not." In Shujat Ali 's case the respondents went down in seniority and it was urged that this affected their chances of promotion.
In Shujat Ali reference was made to earlier decision of this Court, State of Mysore vs G.B. Purohit where also it was held that though a right to be considered for promotion is a condition of service, mere chances of promotion are not and that a rule which merely affects chances of promotion cannot be regarded as varying a condition of service.
The facts of Purohit 's case and what was decided in that case have been summarized in Shujat Ali 's case as follows: "What happened in State of Mysore vs G.B. Purohit was that the districtwise seniority of Sanitary Inspectors was changed to Statewise seniority and as a result of this change, the respondents went down in seniority and became very junior.
This, it was urged, affected their chances of promotion which were protected.
This contention was negatived and Wanchoo J., as he then was, speaking on behalf of this Court observed: It is said on behalf of the respondents that as their chances of promotion have been affected their conditions of service have been changed to their disadvantage.
We see no force in this argument because chances of promotion are not conditions of service.
" The fact that as a result of the changes made by circular No. 6 the complainants lost a few places in the panel affects their chances of promotion but not the right to be considered for promotion.
123 that being so, it cannot be said that the alterations made by circular No. 6 amount to changing the conditions of service of the complainants; the grievance made by the complainants does not therefore appear to have any basis.
The appeals are accordingly allowed and the complaints dismissed, in the circumstances of the case the parties will bear their own costs.
V.D.K. Appeals allowed.

summary/full:
On May 13, 1972 the Reserve Bank of India, Bombay issued Administration Circular No. 8 introducing a revised scheme for promotion of employees as staff officers Grade A. Feeling that the aforesaid Circular adversely affected them, the stenographers filed a writ petition in the Andhra Pradesh High Court challenging its validity, Their grievance was that by the said circular No. 8 they were placed en bloc below the clerks which made their chances of promotion illusory.
On March 5, 1973 the Andhra Pradesh High Court dismissed the writ petition, but made certain recommendations to avoid frustration and dissatisfaction among the stenographers.
In 1973 charters of demands were submitted to the Reserve Bank of India by the employees ' associations.
On January 23, 1976 the Bank issued Administration Circular No. 5 modifying Circular No. 8 to remedy the alleged adverse effect suffered by stenographers as a result of Circular No. 8.
On June 16, 1979, the Central Government in exercise of powers conferred by section 7B of the constituted a National Industrial Tribunal with head quarters at Bombay and referred to it for adjudication an industrial dispute existing between the Reserve Bank of India and their Class III workmen.
The dispute as described in the Schedule to the order of reference related to "specific matters. . pertaining to Class III workmen" enumerated in the Schedule.
The Schedule listed 35 matters in all, item No. 12 of which is described as "promotion".
During the pendency of the reference, on October 10, 1979 the Reserve Bank of India issued Administration Circular No. 6 introducing certain change in the scheme of promotion set out in circular No. 8 by relaxing certain conditions of eligibility for the personal assistants, stenographers, tellers and the clerical staff.
Feeling aggrieved, some clerks (Grade I) who were empanelled for promotion to the post of Staff Officer Grade A after passing the test, filed two complaints before the National Tribunal under section 33A of the Industrial Dispute Act alleging (i) that as a result of Circular No. 6 many who could not have been considered for promotion in preference to the complainants had Circular No. 8 been in force, would now be entitled to a higher preference, 108 and (ii) that the alterations made during the pendency of the reference before the National Tribunal amounted to changing their conditions of service to their prejudice in violation of section 33 (1) (a) of the inasmuch as their chances of promotion would recede.
The National Tribunal by its award dated September 3, 1980 disposed of these two complaints holding that the Reserve Bank of India had changed to the prejudice of the complainants their conditions of service by modifying the existing scheme of promotion during the pendency of a reference before the Tribunal and thereby contravened the provisions of section 33 (1) (a).
Hence the appeals by special leave.
Allowing the appeals and dismissing the complaints, the Court ^ HELD: 1: 1.
The order of reference did not require the Tribunal to adjudicate on all possible matters relating to promotion.
The Tribunal should have defined the area of the dispute referred to it for adjudication before proceeding to consider whether the promotional scheme set out in Circular No. 6 could be said to be connected with that dispute.
[117 G H] 1 : 2.
Item No. 12 of the Schedule annexed to the order of reference is described as "promotion".
Demand No. 19 in the Charter of Demands presented by the All India Reserve Bank Employees Association mentions "promotional avenues", but the matters specified under the head "promotional avenues" relate to the creation of more promotional posts and the upgrading of certain posts.
Demand No. 19 does not thus relate to the promotional scheme in question.
Demand No. 27 of the Charter of Demands submitted by the All India Reserve Bank Workers Organisation is described as "promotional policy" and all that is said in the charter of demands is that the matters "should be discussed and finalised on the basis of prerequisites of promotional policy submitted in 1969".
Demand No. 27 could, therefore, have no connection with the promotional scheme set out in Circular No. 6 issued in 1979.
[116 C E] 1: 3.
Under section 10 (1A) the Central Government could refer to the National Tribunal an existing or an apprehended dispute; the order or reference in this case shows that it was not an apprehended dispute but an industrial dispute that "exists between the employers in relation to the Reserve Bank of India and their class III workmen in respect of the matters specified in the schedule" annexed to the order which was referred to the Tribunal for adjudication.
As section 10 (1A) expressly says, any matter appearing to be connected or relevant to the existing or apprehended dispute can also be referred to the National Tribunal for adjudication, but obviously unless it is determined what the dispute was that has been referred for adjudication, it is not possible to say whether a particular matter is connected with it.
[117 C E] 2: 1.
What circular No. 6 did was to relax for stenographers and personal assistants the conditions they had to satisfy to be able to sit for the test.
It they passed the test, they would get into the panel along with employees belonging to the clerical cadre who also had passed the test.
Vacancies in the posts of staff officer Grade A are filled by recruiting employees from the panel.
The panel is a permanent one.
Alterations of the conditions of the eligibility governing employees belonging to a particular cadre can amount to changing the conditions of service of employees who belonged another cadre, assuming for the present 109 that the said conditions were conditions of service.
The changes introduced in respect of the stenographers and personal assistants may have an impact on the promotional prospects of employees from another cadre who are already in the panel or even of those who were expecting to be included in the panel, but this would not amount to changing their conditions of service.
The conditions of service of an employee cannot include an implied right to prevent the employer from altering the conditions of service of other employees.
In a given case such alteration may be inequitable, and a way may be found in the to redress the grievance of the employees affected thereby.
[118 B F] 2: 2.
It was competent for the Bank to introduce a combined promotional scheme for the clerical staff, stenographers, and personal assistants and the Bank was not bound to wait until all employees belonging to the clerical cadre whose names were already in the panel when Circular No. 6 was introduced had been promoted as staff officers Grade A.
There was no such assurance given by the Bank when it introduced Circular No. 8.
The Bank did not undertake that it would not take any step to change the conditions of the stenographers and the personal assistants were required to satisfy to be able to appear in the test until all the clerks already empanelled were promoted.
Circular No. 6 cannot therefore be assailed on the ground that it was introduced when some employees belonging to the clerical grade whose names were already in the panel remained to be promoted.
[121 B E] Being in the panel in any particular year does not ensure a fixed place in the panel for an employee until he is promoted.
The right the complainants now claim is based on the change in the conditions of service of the stenographers made to their detriment earlier.
[121 E F] Reserve Bank of India vs N.C. Paliwal ; , followed.
It is well settled that a rule which affects the promotion of a person relates to his condition of service but this is not so if what is affected is a chance of promotion only.
Though a right to be considered for promotion is a condition of service, mere chances of promotion are not and that a rule which merely affects chances of promotion cannot be regarded as varying a condition of service.
[121 G H, 122 A, C D] The fact that as a result of the changes made by Circular No. 6 the complainants lost a few places in the panel affects their chances of promotion but not the right to be considered for promotion.
That being so, it cannot be said that the alterations made by Circular No. 6 amount to changing the conditions of service of the complainants; the grievance made by the complainants does not therefore appear to have any basis.
[122 G H, 123 A B] Mohd. Shujat Ali and others etc.
vs Union of India & Ors. etc.
; , ; State of Mysore vs G.B. Purohit, C.A. 2281 of 1965 decided on 25 1 1967 (S.C.) unreported, applied.


judgement:
Appeal No. 323 of 1955.
Appeal from the judgment and order dated July 2, 1953 of the Bombay High Court in Special Civil Application No. 159 of 1953.
R. J. Kolah and A. C. Dave, for the appellant.
H. R. Gokhale, K. R. Chaudhury and M. R. Rangaswamy, for respondent No. 2. 1956.
October 31.
The Judgment of the Court was delivered by GOVINDA MENON J.
On July 20, 1954, the High Court of Judicature at Bombay granted a certificate of fitness under article 133(1) (c) of the Constitution 940 that the judgment of that court dated July 2, 1953, passed in Special Civil Application No. 159 of 1953, was a fit one for appeal to the Supreme Court as it involved a substantial question of law, and it is in pursuance of such certification that the above appeal is now before this court.
A brief resume of the facts and circumstances, which led to the application for a writ of certiorari in the High Court, becomes necessary for a correct appreciation of the question of law involved and may, therefore, be shortly stated.
The appellant which may hereafter, for the purpose of convenience, be called "The Mill", is a limited company owning and possessing a Cotton Textile Spinning and Weaving Mill situated in Poona, employing a large number of workmen who have a union of theirs.
The first respondent is a workman employed by the Mill and the second respondent is the Poona Girni Kamagar Union of which the first respondent is a member.
Respondents 3 to 5 were formally added as parties in the first in stance, but their names were struck off as unnecessary at the time of the hearing.
The appellant was running 580 looms, for working which one weaver had been allotted at the rate of two looms; and when things were in that state on August 29, 1951, the Management issued a notice to the effect that from September 1, 1951, it was desired to carry on an experiment of four looms to a weaver for a period of 2 months, on 16 looms.
If at the end of that period or before the expiry of the same it was found that the working was successful, the Management would introduce the scheme after giving the notice of change required under the Act.
The object of this notice was ostensibly to introduce rationalization or rather efficiency system of work, if and when the suggested experiment proved successful.
As a result of this notice on September 4, 1951, the Secretary of the Union wrote to the Manager of the appellant Mill intimating that under the Bombay Industrial Relations Act the Management could not legally introduce any change in the existing system ,of working without first giving notice of the change 941 in the prescribed form to the representatives of the Union and workers and without going through the other procedure prescribed by the Act; and the Management were further informed that if they insisted in carrying on the change illegally, the workmen would be free to move the proper courts.
The notice also stated that the introduction of the new system would affect the workers ' wages and cause great hardship; and that if anything untoward happened, the blame would be wholly on the management, as it would be impossible for the Union to control the workers in the matter.
Four workers volunteered to work the experiment and started working accordingly on the 16 looms on September 6, 1951, whereupon the other workmen raised an objection and the four loyal workmen were prevented from continuing with the experimental work.
But the Management did not withdraw the notice and none except the 4, was required by the Management to take part in the experiment.
The second shift among the workmen also refused to work with the result that there was a complete strike in the Mills between the 6th and the 26th of September, 1951.
On September 10, 1951 the appellant filed an application under sections 78 and 97 of the Bombay Industrial Relations Act, 1946 (Bom.
XI of 1947), praying that the strike resorted to by the weavers working on both the shifts commencing on September 6, 1951, and continuing till the presentation of the application be declared illegal being in contravention of the provisions of the said Act.
On September 16, 1951 the Vice President of the Mill Mazdoor Sabha filed a written statement in answer to the above com plaint stating that the workers did not strike work in contravention of the Bombay Industrial Relations Act and that the weavers never refused to do their proper and usual work but refused only to do the illegal work insisted on them by the employers; in other words, they were agreeable to have two looms per weaver and not to work the attempted experiment.
Within three days of the filing of the above written 942 statement, two of the workers filed an application under sections 78 and 98 of the Bombay Industrial Relations Act before the same Labour Court against the Management praying for a declaration that the action of the Management had resulted in an illegal lockout in contravention of the Act, and, therefore, the Management should be ordered to withdraw the said illegal change.
The appellant filed a written statement countering the allegations contained in the application for the declaration of an illegal lockout and 'stated that their action was not in contravention of the Bombay Industrial Relations Act, as it did not constitute an illegal change.
The Labour Court at Bombay heard both the applications together and by a combined order dated September 26, 1951, held that since the Management had not compelled any one to accept any work, their action could not be considered an illegal lockout.
At the same time, it held that the workers did not create a situation amounting to an illegal strike.
The result of these findings was the negation of the grant of the prayers contained in the respective applications, but in addition, the court declared that the action of the Management was an illegal change and, therefore, the notice whereby the experiment was attempted to be tried, should be withdrawn.
The workers were content with the outcome of their application but the Management having been aggrieved by the declaration that their action amounted to an 'illegal change ' filed an appeal before the Labour Appellate Tribunal at Bombay (Appeal No. 293 of 1951) upon which the learned Judges of the Labour Appellate Tribunal took the view that the strike by the workmen was illegal.
They also concluded that there was no lockout on the part of the Management.
That being the case, the order of the Labour Court declaring that there was an illegal change was set aside with the declaration that the strike in question was illegal with the necessary consequences.
I In order to get the said order of the Labour Appellate Tribunal quashed, an application for a writ 943 of certiorari under articles 226 and 227 of the Constitution was filed by the two of the workers before the High Court of Bombay where Chagla C.J. and Dixit J., took the view that since the decision of the Appellate Tribunal was erroneous, the same should be quashed, with the result that the decision of the Labour Court was upheld.
It is this judgment that is under appeal before us as a result of the certificate granted by the High Court of Bombay.
A reading of the relevant portions of the statute is necessary to find out whether the order appealed against is justified or not.
The Bombay Industrial Relations Act, 1946 was enacted to regulate the relations of employer and employees, to make provisions for the settlement of industrial disputes and to provide for certain other purposes.
This statute repealed the Bombay Trade 'Disputes Conciliation Act, 1934 and the Bombay Industrial Disputes Act, 1938.
Section 3(8) defines "change" as meaning an alteration in an industrial matter and sub section
(15) contains a definition of 'illegal change ' as meaning an illegal change within the meaning of sub sections
(4) & (5) of section 46 which are in the following terms: "(1) . . . . . . . (2) . . . . . . . . (3) . . . . . . . . (4)Any change made in contravention of the provisions of sub sections (1), (2) and (3) shall be illegal.
(5)Failure to carry out the terms of any settlement, award (registered agreement or effective order or decision of a Wage Board), (a Labour Court or the Industrial Court affecting, industrial matters) shall be deemed to be an illegal change".
Section 42 which speaks of change may also be quoted so far as it is relevant for our purpose: "(I) Any employer intending to effect any change in respect of an industrial matter specified in Schedule II shall give notice of such intention in the prescribed form to the representative of employees.
He shall send a copy of such notice to the Chief Conciliator, the Conciliator for the industry concerned for the 944 local area, the Registrar, the Labour Officer and such other person as may be prescribed: He shall also affix a copy of such notice at a conspicuous place on the premises where the employees affected by the change are employed for work and at such other place as way be directed by the Chief Conciliator in any particular case.
"Industrial matter ' has also been defined in the Act in section 3(18) in the following words: "Industrial matter ' means any matter relating to employment, work, wages, hours of work, privileges, rights or duties of employers or employees, or the mode, terms and conditions of employment, and includes: (a)all matters pertaining to the relationship between employers and employees, or to the dismissal or non employment of any person; ( b) all matters pertaining to the demarcation of functions of any employees or classes of employees; (c) all matters pertaining to any right or claim under or in respect of or concerning a registered agreement or a submission, settlement or award made under this Act; (d)all questions of what is fair and right in relation to any industrial matter having regard to the interest of the person immediately concerned and of the community as a whole;".
Schedule II, para 4 mentions "rationalization or other efficiency system of work" and therefore when any such rationalization is introduced, it is obligatory upon the employer to give notice of such an intention in the prescribed form to the representatives of the employees.
We may also refer to section 3(35 A) defining 'stoppage ' in the following terms: " Stoppage ' means a total or partial cessation of work by the employee in an industry acting in combination or a concerted refusal or a refusal under a common understanding of employees to, continue to work or to accept work, whether such cessation or refusal is or is not in consequence of an industrial dispute;".
945 Sub section (36) defines 'strike ' as follows: " 'Strike ' means a total or partial cessation of work by the employees in an industry acting in combination or a concerted refusal or a refusal under a common understanding of employees to continue to work or to accept work, where such cessation or refusal is in consequence of an industrial dispute".
Chapter XIV of the statute concerns itself with illegal strikes and lockouts of which section 97 deals with illegal strikes, whereas section 98 deals with an illegal lockout.
According to section 97(1)(c), a strike shall be illegal if it is commenced or continued only for the reason that the employer has not carried out the provisions of any standing order or made "an illegal change".
In considering whether the strike in question was illegal.
the learned Judges of the High Court have expressed the opinion that there is a common law right for an employee to stop work and that it is only by statutory prohibition that certain strikes have been made illegal in the interest of labour relations.
In the present case since there had been no 'illegal change" effected by the employer, the High Court took the view that on the very finding of the Appellate Tribunal that the change was a legal change, the strike in question did not come within the ambit of section 97.
Learned counsel for the appellant has pressed two arguments before us with regard to the construction of section 97 (1) (e) of the Bombay Industrial Relations Act., 1946.
His first argument is that the High Court was in error when it held that there was any such right as a common law right of an employee to go on strike and section 97 constituted an inroad on that right.
Learned counsel has submitted that under section 97 (f) (c) a strike shall be illegal if it is commenced or continued only for the reason that the employer has not carried out the provisions of any standing order or has made an illegal change; if a strike is illegal when it is com menced or continued only for the reason that the employer has made an illegal change, a fortiori it must be illegal when it is commenced or continued for a legal change.
The contention of learned counsel is 128 946 that by necessary implication cl.
(c) condemns a strike which is commenced or continued for a change which is not illegal.
The second argument of learned counsel is that the true scope and effect of cl.
(c) is this: the word 'only ' occurring in the clause goes with the word 'reason ' and if the strike is commenced or continued for the only reason that the employer has made an illegal change, it shall be illegal.
The test is not whether there was a legal or illegal change in fact but what was the reason for which the employees went on strike, and if the employees.
commenced or continued a strike only for the reason that the employer had made an illegal change, the strike would be illegal within the express terms of the clause.
In our opinion it is unnecessary to decide in this case whether the first argument of learned counsel for the appellant is correct or not; because we are I clearly of the opinion that the second argument with regard to the construction of section 97 (1) (c) is correct and should prevail.
In this case the workmen themselves came to court with the plea that the action of the employer amounted to an illegal change.
In their application to the Labour Court, they said: "That for the above mentioned reasons it is prayed that this Honourable Court be pleased to declare the said lockout by the opponent Mills as illegal being in con travention of the Bombay Industrial Relations Act, and the opponent be ordered to withdraw the said illegal change".
It is obvious, therefore, that the workmen in this case struck work only for the reason that the change or experiment made by the appellant employer was an illegal change.
The action of the workmen, therefore, came within the express terms of section 97 (1) (c) of the Act.
The learned Chief Justice did not consider this aspect of the case, and reached a conclusion with regard to the legality of the strike on a reasoning which did not give full effect to the words used in s.97(1)(c).
In our view,the true test was to find out the reason for which the strike was commenced or continued, and it was unnecessary to consider or decide whether there was a common law right of the workmen to go on strike or whether the work 947 men had the right to go on strike as a means of collective bargaining against a change which they did not like.
Mr. Gokhale appearing for the workmen has taken us through the different provisions of the Bombay Industrial Relations Act, 1946, and has contended that the workmen have the right to go on strike as a means of collective bargaining against any measure adopted by the employer which the workmen may consider to be detrimental to their interests, provided the strike does not come within the prohibited ambit of section 97.
Even assuming that Mr. Gokhale is right in his contention, it is clear to us that if the workmen commence or continue a strike for the only reason that the employer has made an illegal change, they come within the express terms of section 97 (1) (c).
It is immaterial whether the change is subsequently found by the Labour Court to be a legal change.
It is worthy of note that there is a separate provision for imposing a penalty on an employer who makes an illegal change.
The relevant consideration, however, with regard to section 97 (1) (c) is the reason for which the strike is commenced or continued.
That reason in this particular case is clear enough.
The workmen themselves said that they commenced and continued the strike because the employer had made an illegal change.
That being the position, the strike was illegal within the express terms of section 97(1)(c) of the Act.
We are, therefore, of the opinion that, on a proper interpretation of section 97(1) (c) of the Act, the strike which was commenced and continued from September 6, to September 26, 1951, was clearly illegal.
The appeal is, accordingly, allowed and the order of the High Court dated July 2, 1953, is set aside.
The result, therefore, is that the order of the Labour Appellate Court dated September 4, 1952, stands, with the declaration that the strike in question was illegal with its usual consequences.
In this case, the appellant had agreed, while asking for a certificate from the Bombay High Court for leave to appeal to the Supreme Court, to pay the taxed costs of the respondents in one set.
Learned 948 counsel for the appellant himself has drawn our attention to the agreement.
In view of that it is not necessary for us to decide in this case whether it was open to the Bombay High Court to pass any order about costs in this Court while granting a certificate of fitness under article 133(1) (c) of the Constitution, and we direct that the appellant should pay to the respondents the costs of this appeal in one set and bear its own costs thereof.
Appeal allowed.

dataset_name: IN-Abs

summary/full:
By section 97(1)(c) of the Bombay Industrial Relations Act, 1946: "A strike shall be illegal if it is commenced or continued only for the reason that the employer has not carried out the provisions of any standing order or has made an illegal change".
The management of the appellant Mill desiring to make a change in the existing system of working started making an experiment by asking a few workmen who had volunteered to work at the rate of four looms to a weaver for a period of two months.
The other workers objected that this was an illegal change on the ground that the management could not legally introduce any change without first going through the procedure prescribed by the Act, and went on strike.
The question was whether the strike was illegal.
Held, that as the workmen had gone on strike only for the reason that the change or experiment made by the appellant was an illegal change, their action came within the express terms of B. 97(1)(c) of the Act and the strike was illegal.


judgement:
Civil Appeals Nos. 2014 to 2016 of 1977 Appeals by special leave from the judgment and order dated the 17th November, 1976 of the Allahabad High Court in Civil Misc.
Writ Nos. 107, 108, & 357 of 1976.
S.S. Ray, Depankar Gupta, Raja Ram Agarwal, O.P. Khaitan, N.R. Khaitan, Bharat Ji Agarwal, Mrs. Neelam Thakur and Umesh Khaitan for the Appellants.
131 S.C. Manchanda, R. Ramchandran and O.P. Rana for the Respondent.
The appellant, the Hindustan Aluminium Corporation Limited, carries on the business of manufacturing and dealing in aluminium metal and various aluminium products.
On December 1, 1973 the State of Uttar Pradesh notified under section 3 A (2) of the U.P. Sales Tax Act, 1948 that the turnover in respect of the following goods set forth in item No. 6 of the attached schedule would be liable to tax at all points of sale at 3 1/2% "6.
All kinds of minerals and ores and alloys except copper, tin, zinc, nickel or alloy of these metals only.
" On May 30, 1975 the State of Uttar Pradesh published a notification, under section 3A (2 A) of the Act, in which item No. 1 of the schedule read as follows: "1.
All kinds of minerals, ores, metals and alloys except those included in any other notification issued under the Act." and a rate of 2% was prescribed.
The notification dated December 1, 1973 was amended and item No. 6 was deleted.
On August 14, 1975 the U.P. Legislature enacted the U.P. Sales Tax (Amendment and Validation) Act, 1975 section 31 (7) of which amended the aforesaid notification of May 30, 1975 retrospectively, so that it would be deemed always to have read as follows: "1.
All kinds of minerals, ores, metals, and alloys including sheets and circles used in the manufacture of brass 132 wares and scraps containing only any of the metals, copper, tin, zinc, or nickel except those included in any other notification issued under the Act.
" On July 11, 1975 the appellant wrote to the Sales Tax Officer contending that the aluminium ingots, billets, rolled products, extrusions and other aluminium products manufactured and sold by it upto May 31, 1975 fell within item No. 6 of the notification dated December 1, 1973 and thereafter their sale was covered by item No. 1 of the notification dated May 30, 1975.
However, the Commissioner of Sales Tax, U.P. issued a circular on October 15, 1975 to all Sales Tax Officers advising that aluminium ingots only should be taxed as "metal", and in regard to other items such as rods, bars, rolled products, extrusion sections tax at the rate of 7% would be payable as on unclassified items.
On December 30, 1975, the Sales Tax Officer made provisional assessments under rule 41(3), U.P. Sales Tax Rules, 1948 for the quarters ending June 30, 1975 and September 30, 1975.
The Sales Tax Officer applied a rate of 3 1/2% under the Notification of December 1, 1973 to aluminium ingots only and treated the remaining products as unclassified items attracting sales tax at 7%.
Similarly under the Notification of May 30, 1975 a rate of 2% was applied to the turnover of aluminium ingots while the remaining products were charged to tax at 7% as unclassified items.
The appellant filed a writ petition in the Allahabad High Court against the provisional assessments.
During the pendency of the writ petition the Sales Tax Officer made a final assessment order for the assessment year 1975 76 on August 3, 1976.
The writ petition was amended in the High Court and relief was now sought against the final assessment order.
On November 17, 1976 the High Court passed judgment on the writ petition holding that while aluminium ingots, wire bars and billets would fall in the category "metals and alloys", rolled products prepared by rolling ingots and extrusions manufactured from billets must be regarded as different commercial commodities from the ingots and billets and therefore outside the category of "metals and alloys".
The rolled products included plates, coils, sheets, circles and strips.
The extrusions were manufactured in the shape of bars, rods, structurals, tubes, angles, channels and different types of sections.
In regard to properzi redraw rods, the High Court considered that a further 133 enquiry was necessary and therefore directed the Sales Tax Officer to re examine the matter.
The present appeals are directed against the part of the High Court judgment refusing relief in regard to rolled products and extrusions.
It is vehemently contended that the High Court has erred in holding that the rolled products and extrusions are new commercial commodities distinct from the aluminium ingots and billets from which they are prepared.
It is urged that they represent the marketable form merely of ingots and billets.
We have been referred to a number of documents and publications as well as the Aluminium (Control) Order, 1970, and the submission is that when reference is made to aluminium as a metal it includes rolled products and extrusion products.
We are not satisfied that the appellant is right.
There is no doubt that, as laid down by this Court in Porritts & Spencer (Asia) Ltd. vs State of Haryana, a word describing a commodity in a sales tax statute should be interpreted according to its popular sense, the sense being that in which people conversant with the subject matter with which the statute is dealing would attribute to it.
Words of everyday use must be construed not in their scientific or technical sense but as understood in common parlance.
That principle has been repeatedly reaffirmed in the decisions of this Court.
It holds good where a contest exists between the scientific and technological connotation of the word on the one hand and its understanding in common parlance on the other.
We are here concerned, however, with a very different situation.
We are concerned, with the manner in which these and similar expressions have been employed by those who framed the relevant notifications, and with the inference that can be drawn from the particular arrangement of the entries in the notifications.
We must derive the intent from a contextual scheme.
Section 3A of the U.P. Sales Tax Act empowers the State Government to prescribe, by notification, the rate, and the point at which the tax may be imposed on the sale of a commodity.
A consideration of the notifications issued from time to time will show that the expression "metal" has been generally employed to refer to the metal in its primary sense.
The reference is to the metal in the form in which it is marketable as a primary commodity.
Subsequent 134 forms evolved from the primary form and constituting distinct commodities marketable as such must be regarded as new commercial commodities.
The notification No. ST 2631/X 902 (64) 50 of November 21, 1952, for example, sets forth two clauses: (a) Copper, tin, nickel, or zinc or any alloy, containing any of these metals only, and (b) Scrap, meant for melting, and sheets including circles meant for making brass ware, and containing only any or all of the said metals, viz., copper, tin, nickel and zinc.
It is clear that while clause (a) makes specific reference to certain metals, clause (b) separately sets forth the products which emerge as a result of processing the original metal.
Clause (b) speaks of sheets, including circles meant for making brass ware, and containing only any or all of the metals specified in clause (a).
A sheet of copper only or tin only or nickel only or zinc only is regarded as belonging to a distinct entry in the notification from copper, tin, nickel or zinc in its unfabricated from.
This schematic arrangement has been followed in notification No. ST 3500/X dated May 10, 1956, notification No. 1366/X 990 1956, dated April 1, 1960 and notification No. St 9377/X 906 (AB 4) 1971 dated October 6, 1971.
In all those notifications the framers of the notifications followed the scheme that one clause dealt with the metal in its original saleable form and another separate clause dealt with fabricated forms in which it was saleable as a new commodity.
It is admitted before us on behalf of the appellant that aluminium ingots and billets are saleable commodities as such in the market.
In the circumstances the inference is irresistible that when such a notification refers to a metal, it refers to the metal in the primary or original form in which it is saleable and not to any subsequently fabricated form.
It is true that in the notification dated May 30, 1975, as amended retrospectively on August 14, 1975, the entry reads: "All kinds of minerals, ores, metals and alloys including sheets and circles used in the manufacture of brass wares and scraps containing only any of the metals, copper, tin, zinc, or nickel except those included in any other notification issued under the Act.
" But here, the expression "including" does not enlarge the meaning of the word "metal" and must be understood in a conjunctive sense, 135 as a substitute for "and".
This is the reasonable and proper construction having regard to the scheme followed in the framing of notifications.
It is urged that item No. 6 in the notification of 1973 and Item No. 1 in the notification of 1975 speak of "all kinds of minerals, ores, metals and alloys" and, it is said, the word "all" should be given its fullest amplitude so as to include even subsequently fabricated forms of the metal.
It seems to us that the construction suggested is inconsistent with the scheme to which we have referred.
While broadly a metal in its primary form and a metal in its subsequently fabricated form may be said to belong to the same genus, the distinction made between the two constitutes a dichotomy of direct significance to the controversy before us.
The question whether rolled steel sections are a different commodity from scrap iron ingots was considered by this Court in Devi Das Gopal Krishnan and Others vs The State of Punjab and Others, and this Court had no hesitation in holding that when scrap iron ingots are converted into rolled steel sections they go through a process of manufacture which brings into existence a new marketable commodity.
We are of the opinion that the same conclusion must follow when aluminium ingots and billets are converted into aluminium rolled products and extrusion products.
Learned counsel for the appellant places reliance on Tungabhadra Industries Ltd., Kurnool vs Commercial Tax Officer, Kurnool where this Court took the view that hydrogenated "groundnut oil" commonly called Vanaspati was "ground nut oil" within the meaning of rule 18(2) of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939.
In that case, the Court was of opinion that the process of hydrogenation did not alter the essential identity of the oil, and reference was made to the broad compass of the expression "groundnut oil", besides the circumstance that the use to which the original groundnut oil could be put would also be the use to which the hydrogenated oil could be applied.
It seems to us that the case is distinguishable.
We then turn to State of Madhya Bharat (now the State of Madhya Pradesh) and Others vs Hiralal, the next case placed before us.
This Court held that scrap iron, when put through a process of re rolling to produce attractive and acceptable forms of iron and steel in the shape of 136 bars, flats and plates, must be regarded as continuing to be "iron and steel" for the purpose of the notification issued under the Madhya Bharat Sales Tax Act.
The case, however, has been distinguished by this Court in State of Tamil Nadu vs Pyare Lal Malhotra on the ground that the nature of the raw material from which the goods were made was the decisive criterion for deciding the earlier case.
It observed "The language of the notification involved there made it clear that the exemption was for the metal used.
In the cases before us now, the object of single point taxation is the commercial commodities and not the substance out of which it is made.
Each commercial commodity here becomes a separate object of taxation in a series of sales of that commercial commodity so long as it retains its identity as that commodity.
" And the Court then referred with approval to Devi Dass Gopal Krishnan (supra).
Our attention has been invited to State of Gujarat vs Shah Veljibhai Motichand, Lunawada where the Gujarat High Court held that corrugated iron sheets were merely "iron" in another shape and form and could not be regarded as articles or products manufactured or fabricated out of iron.
We have perused the three judgments delivered in that case but it seems to us that the majority opinion is of doubtful validity, specially having regard to the observations of this Court made in Pyare Lal Malthora (supra).
We are also referred to Maharaja Book Depot vs State of Gujarat.
This Court held that an exercise book is "paper" as defined in section 2(a) (vii) of the and Item 13 in Schedule I to the Gujarat Essential Articles Dealers (Regulation) Order 1971.
The Court accepted that construction on the ground that it would be in consonance with and would carry out effectively the object or purpose of the Act and the Regulation Order.
It is desirable to recall that the was enacted to control the distribution and price of essential commodities.
A sufficiently comprehensive interpretation was called for 137 in order that all products essential to the community which would reasonably fall within the scope of the definition could be covered.
Learned counsel for the appellant relies on the wide definition of the word "aluminium" in the Aluminium (Control) Order, 1970, but we must remember that the word has been given the broad definition set out there only for the purposes of that Control Order.
It cannot be pressed into service for resolving the controversy before us.
Learned counsel for the appellant also relies on the Glossary of Terms for Aluminium and Aluminium Alloys prepared by the Indian Standards Institution(1), the Glossary of Terms prepared by the British Standards Institution(2), Engineering Metallurgy(3), Non Ferrous Metals and their Alloys(4), Metal Industry: Hand Book and Directory, 1962 and allied literature.
In considering the material, it is necessary to caution ourselves that the literature is concerned with conceptions particular to the aluminium industry, while we are here concerned with the application of a sales tax statute.
Finally, it is urged that two interpretations are possible of the relevant entries in the notifications of 1973 and 1975 and therefore the interpretation favourable to the dealer should be adopted.
We are of the definite opinion that the only interpretation possible is that aluminium rolled products and extrusions are regarded as distinct commercial items from aluminium ingots and billets in the notifications issued under the U.P. Sales Tax Act.
In the result, the appeals fail and are dismissed with costs.

summary/full:
Pursuant to a circular issued by the Commissioner of Sales Tax that aluminium ingots only should be taxed at the lower rate and that all other items like rods, bars, rolled products, extrusion sections etc. should be taxed at higher rates as unclassified items, the Sales Tax Officer taxed aluminium ingots manufactured by the appellant at the lower rate; and treating the remaining products manufactured by them as unclassified items taxed them at the higher rate.
The High Court, dismissing the appellant 's writ petition impugning the assessment made by the Sales Tax Officer, held that while aluminium ingots, wire bars and billets would fall in the category of "metals and alloys", rolled products prepared by rolling ingots and extrusions manufactured from billets were different commercial commodities from the ingots and billets and that they fell outside the category of "metals and alloys".
The method of assessment made by the Sales Tax Officer was, therefore, upheld.
In appeal to this Court it was contended that the High Court erred in holding that the rolled products and extrusions were new commercial commodities, distinct from the aluminium ingots and billets from which they were prepared and that they represented the marketable form merely of ingots and billets.
Dismissing the appeal, ^ HELD: The expression 'metal ' has been generally employed in the relevant notifications to refer to the metal in its primary sense i.e. in the form in which it is marketable as a primary commodity.
Subsequent forms evolved from the primary form and constituting distinct commodities marketable as such must be regarded as new commercial commodities.
In all the relevant notifications, therefore, the framers followed the scheme that one clause dealt with metal in its original saleable form and another separate clause dealt with fabricated forms in which it was saleable as a new commodity.
Aluminium ingots and billets are saleable commodities as such in the market.
When such a notification refers to a metal it refers to the metal in the primary or original form in which it is saleable and not to any subsequently fabricated form.
[133 H; The word "all" occuring in "all kinds of minerals, ores, metals and alloys including sheets. " in the notification cannot be interpreted to include even subsequently fabricated forms of the metal, for such an interpretation would be inconsistent with the scheme of the notifications.
While broadly a metal in its primary form and a metal in its subsequently fabricated form may be said to belong to the same genus, the distinction made between the two constitutes a dichotomy of direct significance to the controversy in the instant case.
[135 B C] Having regard to the scheme followed in the framing of the notifications, the expression "including" does not enlarge the meaning of the word "metal".
It must be understood in a conjunctive sense, as a substitute for "and".
[134 H] Devi Dass Gopal Krishnan and Others vs The State of Punjab and Others [1967] 20 S.T.C. 430 followed.
Tungabhadra Industries Ltd., Kurnool vs Commercial Tax Officer, Kurnool [1960] 11 S.T.C. 827 and State of Madhya Bharat (now State of Madhya Pradesh) and Others.
vs Hiralal [1966] 17 S.T.C. 313 distinguished.
State of Tamil Nadu v Pyare Lal Malhotra [1976] 37 S.T.C. 319 and 325, & Maharaja Book Depot vs State of Gujarat ; referred to.
State of Gujarat vs Shah Velijibhai Motichand, Lunawada [1969] 23 S.T.C. 288 not approved.
A word describing a commodity in a sales tax statute should be interpreted according to its popular sense, the sense in which people conversant with the subject matter with which the statue is dealing would attribute to it.
Words of everyday use must be construed not in their scientific or technical sense but as understood in common parlance.
But what is relevant in the circumstances of the present case is the manner in which these and similar expressions have been employed by those who framed the relevant notifications and with the inference that can be drawn from the particular arrangement of the entries in the notifications.
The intent must be derived from a contextual scheme.
[133 D F] Porritts & Spencer (Asia) Ltd. vs State of Haryana [1978] 42 S.T.C. 433 followed.


judgement:
Civil Appeal No. 1006 of 1971 Appeal by special leave from the judgment and order dated the 23rd September, 1970 of the Gujarat High Court in C.R.A. Nos.
1295 of 1966, 49 and 50 of 1967.
S.K. Dholakia and R.C. Bhatia for the Appellant.
M.V. Goswami for the Respondent.
The Judgment of the Court was delivered by SEN, J.
This appeal, by special leave from a judgment of the Gujarat High Court, involves the question of comparative hardship under section 13(2) of the Bombay Rent, Hotel and Lodging House Rates Control Act, 1947 for brevity 'the Act '.
First as to the facts.
The appellant plaintiff is a merchant who settled in Africa and was carrying on business in Kampala in 155 Uganda.
Due to political upheaval in that country, he along with his family migrated to India in 1964 and began living in a rented house at Rajkot, where he owns a building known as 'Trivedi House '.
On September 21, 1964 he brought a suit for eviction of the respondent defendant, Laxmishanker Tribhoyan, from the suit premises, which consists of a shop on the ground floor of the said building, on the ground that he reasonably and bona fide required the suit premises for starting his business.
The defendant denied the claim and pleaded that the plaintiff did not want to settle down at Rajkot and had already gone back to Africa and that, in any event, even if the plaintiff 's alleged need under section 13(1) (g) of the Act were proved, no decree for eviction could be passed because of comparative hardship by reason of section 13(2) of the Act.
It was alleged that the defendant was a man of slender means and had built up a good will by running his business from the suit premises over the years and he would be put to greater hardship as it would disrupt his business if he were evicted therefrom.
The court of first instance as well as the District Judge in appeal upheld the plaintiff 's claim under section 13(1) (g) of the Act and decreed the suit.
In revision, the High Court held that the finding of the courts below as to the plaintiff 's need to be reasonable and bona fide being a finding of fact could not be interfered with under section 29(2) of the Act, but non suited the plaintiff 's on the ground of comparative hardship under section 13(2) of the Act.
As regards comparative hardship, both the courts below held that the defendant was not in actual possession of the suit premises, but had inducted one Labhshanker as his licensee, who was in occupation thereof, and, therefore, question of hardship under section 13(2) of the Act did not arise.
They further held that the licensee, Labhshanker, owned a separate shop of his own from where he was carrying on his business and had taken the suit premises from the defendant for using it as a godown and, therefore, there was no question of any hardship to him as he would be put to the inconvenience of shifting his goods to his own shop.
The High Court, however, differed from the courts below and held that the defendant would be put to greater hardship.
In coming to that conclusion, the High Court observes: "Although the defendant Laxmishankar Tribhoyan was not in actual occupation of the shop, the aforesaid Labhshanker was running the business on his behalf and paying the defendant a fixed amount of maintenance because he was aged and infirm and also because he was his uncle and, therefore, if we were to confirm the decree for eviction of the courts below, the defendant would be deprived 156 of his only source of livelihood for he was dependent on Labhshanker who was running his business from the suit premises.
" As regards the plaintiff, the High Court was pleased to observe: "Now so far as the plaintiff is concerned, he has his one leg in Rajkot and another in Africa.
Therefore, there is still uncertainty of his settling down in Rajkot." In that view of the matter it held that no decree for eviction under section 13(1) (g) of the Act can be passed and accordingly reversed the decree of the courts below: Section 13(2) of the Act reads as follows: 13(2) No decree for eviction shall be passed on the ground specified in clause (g) of sub section (1) if the Court is satisfied that, having regard to all the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenant, great hardship would be caused by passing the decree than by refusing to pass it.
Where the Court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the Court shall pass the decree in respect of such part only.
It is plain upon the language of section 13(2) of the Act that it creates a further fetter on the power of the courts to pass a decree for eviction once it held in favour of the plaintiff on the issue of reasonable and bona fide requirement under section 13(1) (g) of the Act.
The words "No decree for eviction shall be passed" make it incumbent on the court not to pass a decree on the ground specified under section 13(1) (g) of the Act unless it is satisfied as to the comparative hardship caused to the landlord and the tenant by passing a decree than by refusing it.
In dealing with the question, the court is only concerned with the hardship of the landlord and the tenant and not to a complete stranger.
Under section 13(2) of the Act, if there is greater hardship to the tenant, the court should refrain from making an order for eviction under section 13(1) (g) of the Act.
On the other hand, if the making of an order of eviction under section 13(1) (g) of the Act would cause no such hardship, the court has no jurisdiction but to pass such an order.
The Legislature by enacting section 13(2) of the Act seeks to strike a just balance between the landlord and the tenant so that the order of eviction under section 13(1) (g) of the Act does not cause any hardship 157 to either side.
The considerations that weigh in striking a just balance between the landlord and the tenant were indicated in a series of decisions of the Court of Appeal, interpreting an analogous provision of the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933 (c. 32), section 3(1), Sched.
I, para (h): Sims vs Wilson, Fowle vs Bell, Smith vs Penny, Chandler vs Strevett and Kelly vs Goodwin.
One of the most important factors in considering the question of greater hardship is whether other reasonable accommodation is available to the landlord or the tenant.
The court would have to put in the scale other circumstances which would tilt the balance of hardship on either side, including financial means available to them for securing alternative accommodation either by purchase or by hiring one, the nature and extent of the business or other requirement of residential accommodation, as the case may be.
It must, however, be observed that the existence of alternative accommodation on both sides is an important but not a decisive factors.
On the issue of greater hardship the English courts have uniformly laid down that the burden of proof is on the tenant.
We are inclined to the view that on the terms of section 13(2) of the Act, the decision cannot turn on mere burden of proof, but both the parties must lead evidence.
The question whether or not there would be greater hardship caused to the tenant by passing the decree must necessarily depend on facts and circumstances of each case.
Under section 29(2) of the Act as substituted by Gujarat Act 18 of 1965, although the High Court has a wider jurisdiction than the one exercisable under section 115 of the Code of Civil Procedure, 1908, its revisional jurisdiction could only be exercised for a limited purpose with a view to satisfying itself that the decision was according to law.
It cannot be said that the courts below failed to apply their mind to the requirements of section 13(2) of the Act as to comparative hardship or their finding was manifestly perverse or erroneous.
That being so, the High Court could not substitute its own finding for the one reached by the courts below on a reappraisal of the evidence.
It is indeed difficult to appreciate the line of reasoning adopted by the High Court in non suiting the plaintiff.
On the 158 admitted facts, the plaintiff is a displaced person from Africa and was carrying on business in Kampala in Uganda.
Due to political upheaval in that country, in 1964 he, along with his family, migrated to India and began living in a rented house in Rajkot.
He proved that he reasonably and bona fide required the suit premises under section 13(1) (g) of the Act.
Admittedly, he has the requisite experience and wherewithal to carry on business, as it is on record that he has been carrying on business in Kampala for over 30 years.
The mere fact that the plaintiff had gone back to Uganda for winding up his business there, is not a circumstance against him.
On the contrary, it was indicative of his intention to start his business from the suit premises.
As against this, the defendant was not in actual possession of the suit premises but had placed one Labhshanker in occupation thereof who had a separate shop of his own and using the suit premises as a godown.
Merely because the defendant who was aged and infirm and Labhshanker as his licensee and under an arrangement was paying a fixed amount to the defendant by way of maintenance did not imply that the passing of a decree under section 13(1) (g) of the Act would cause greater hardship to the defendant than to the plaintiff.
Further, the High Court failed to appreciate that perhaps old age and infirmity night have been relevant considerations in judging the issue of greater hardship under section 13(2) of the Act if the defendant were himself to carry on business from the suit premises and not where, as here, he had admittedly parted with possession in favour of a stranger.
It was clearly in error in spelling out a new case for the defendant of the so called arrangement between himself and a stranger, Labhshanker, for which there is no foundation in the pleadings and which could not in law be pleaded in answer to the plaintiff 's claim under section 13(1)(g) of the Act.
That apart, during the pendency of the appeal, the defendant Laxmishanker Tribhoyan having died, the question of greater hardship under section 13(2) of the Act does not arise.
For all these reasons, the judgment and order of the Gujarat High Court are set aside and the judgment and decree passed by the courts below decreeing the plaintiff 's suit for eviction under section 13(1) (g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, are restored with costs throughout.
P.B.R Appeal allowed.

summary/full:
In his suit under section 13(1)(g) of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 seeking the eviction of the respondent defendant from the suit premises, the plaintiff appellant claimed that after having been displaced from Uganda on account of political upheaval in that country he intended to settle down in his native town and that therefore, he reasonably and bonafide required the suit premises under the defendant 's occupation for setting up his business.
In replication the defendant claimed that he, a man of slender means, had built up his goodwill by running a business from the premises over the years and his eviction from the premises would put greater hardship on him than on the plaintiff.
In support of his case he pleaded that section 13(2) of the Act makes it incumbent on the Court to refrain from passing an order of eviction under section 13(1)(g) if it is satisfied that it causes greater hardship to the tenant than to the landlord.
The court of first instance, and in appeal the District Judge, negatived the defendant 's claim of comparative hardship to him because the defendant himself was not in actual possession of the premises but had in fact inducted another person who had his own business elsewhere in the town but used the suit premises as a mere godown.
On appeal the High Court declined to pass an order of eviction under section 13(1)(g).
It held that the defendant, who in his old age was receiving some maintenance from the licensee for the use of the premises, would be deprived of his only source of livelihood were he evicted from the premises and that secondly the fact that the plaintiff had gone back to Uganda showed that he was not sure whether to settle down in India or go back to Uganda.
Allowing the appeal.
^ HELD: Section 13(2) seeks to strike a just balance between the landlord and tenant.
In considering the question of greater hardship the Court would have to take into account the circumstances which would tilt the balance of hardship either way.
The existence of alternative accommodation on both sides is an important though not a decisive factor.
On the terms of section 13(2) 154 the question whether or not there would be greater hardship to the tenant by passing the decree cannot turn on mere burden of proof but the parties must lead evidence.
[157 A D] The High Court erred in non suiting the plaintiff.
There is enough evidence to show that he came from Uganda as a result of political upheaval in that country, that he had considerable business experience in that country and that he had the requisite wherewithal to carry on business.
In contrast the defendant was not in actual possession of the suit premises but had given possession of the premises to another person who had a separate shop of his own, who only used the premises as his godown.
The mere circumstance that the defendant was aged and infirm and that the licensee paid him some amount regularly would not imply that a decree under section 13(1)(g) would cause greater hardship to the defendant.
Section 13(2) would have been relevant had the defendant himself been in possession of the premises.
In any event the defendant having died the question of greater hardship to him under section 13(2) would not arise.
[158 A F] Although the jurisdiction exercisable by the High Court under the Act is wider than its jurisdiction under section 115 C.P.C. its revisional jurisdiction under the Act could only be exercised for the limited purpose of satisfying itself that the decision of the Courts below was according to law.
So long as the finding of the Courts below was not perverse or erroneous the High Court cannot, on a reappraisal of the evidence, substitute its own finding for the one reached by the Courts below.
[157 E F] In dealing with the question of comparative hardship the Court is only concerned with the hardship of the landlord and the tenant but not of a complete stranger.
[157 F G]