judgement:
Civil Appeal No. 236 of 1969.
Appeal from the Judgment and Order dated 24/25th August 1967 of the Gujarat High Court in SCA No. 585/63.
section K. Dholakia and R. C. Bhatia for the Appellant.
1026 P. Ram Reddy, Amicus Curiae for Respondent No. 2.
The Judgment of the Court was delivered by SARKARIA, J.
The appellant is the Gujarat State Cooperative Land Development Bank Ltd. (hereafter referred to as the Bank).
It is a Society registered under the Bombay Cooperative Societies Act, 1925, as applicable to the erstwhile State of Saurashtra.
According to the appellant 's writ petition, it is doing banking business.
It has 127 Branches spread all over the State of Gujarat.
One of its Branches is in Dasada, Surendranagar District.
The Head Office of the Bank is at Ahmedabad.
The second respondent, Babu Bhai Negracha, was serving as an Additional Supervisor in the Dasada Branch of the Bank.
His services were terminated by an order, dated February 21, 1962, by giving him one month 's pay in lieu of notice under Staff Regulation No. 15.
The Gujarat Cooperative Societies Act, 1961, came into force from May 1, 1962, and the appellant Bank, being a Society, under the Cooperative Societies Act, came to be governed by the said Act.
By Notification No. BIR 1362 5 H, dated March 2, 1963, published in the Gujarat Gazette in March 1963, the Government of Gujarat directed under Section 2(4) of the Bombay Industrial Relations Act, 1946 (Bombay Act 11 of 1947) that all the provisions of the said Act shall apply with effect from March 15, 1963 to the business of banking by Cooperative Banks in the Saurashtra and Kutch areas of the State, registered and deemed to be registered under the Gujarat Cooperative Societies Act, 1961.
Aggrieved by the termination of his service, the second respondent approached the appellant 's Dasada 's Branch by a letter, dated August 20, 1962, stating that since his services were terminated illegally by way of victimisation, he should be reinstated in the service.
Thereafter, the second respondent filed an application in the Labour Court at Rajkot, alleging that his service had been illegally and maliciously terminated as an act of victimisation on account of his trade union activities.
He prayed for setting aside the order of his termination of service and for reinstatement with full back wages.
The Bank filed a written statement, raising a preliminary objection that the Bombay Industrial Relations Act, 1946, under which the application was made by the respondent, was not applicable to its case, as it was a Cooperative Society governed by the Gujarat Co operative Societies Act, under which only the Registrar or his nominee 1027 had jurisdiction to decide the dispute, and the Labour Court had no jurisdiction to entertain and decide the application of the second respondent.
By its Order, dated June 11, 1963, the Labour Court overruled this objection and held that it had jurisdiction to hear the application.
The Bank then filed a writ petition under Article 226 of the Constitution in the High Court to challenge the Order of the Labour Court.
The High Court by a common judgment dated August 25, 1967 dismissed the writ petition, but in view of the importance of the question of law involved, granted a certificate of fitness for appeal to this Court.
On the strength of that certificate, the Bank has come in appeal before us against the aforesaid judgment of the High Court.
In this Court on January 22, 1969, the Bank made an application for leave to urge as additional ground, namely, that the Bank is not doing banking business, i.e. accepting for the purpose of lending or investment of deposits of money from the public, repayable on demand or otherwise, and withdrawable by cheque, draft, order or otherwise as defined in Section 5, Clauses (b) and (c) of the Banking Companies Act, 1949; and that this being the true position, the Notification No. DIR 1362 IV H dated March 2, 1963, published in the Gujarat Government Gazette dated March 7, 1963, under Section 2(4) of the Bombay Industrial Relations Act, 1946 (Bombay Act XI of 1947) is not applicable to the appellant.
This application was strenuously opposed by Shri Ram Reddy, who is assisting the Court as amicus curiae on behalf of respondent 2, who has not been able to appear and defend himself in this appeal.
We have declined permission to raise this new plea for the first time in this Court, for these reasons: (i) It is much too belated; (ii) It stands in direct contradiction to the position taken by the appellant in its writ petition and the affidavit in support thereof filed in the High Court.
Therein, the appellant had categorically pleaded: "The petitioner is a Society registered under the Bombay Cooperative Societies Act, 1925 (Bombay Act VII of 1925). and is engaged in the business of banking." (iii) It is not a purely legal plea but a mixed plea of law and fact, and cannot be determined on the basis of material already on the record.
We, therefore, take it that the appellant is a Cooperative Society engaged in the business of banking and, as such, the Bombay Industrial 1028 Relations Act, 1946 is applicable to it by virtue of the aforesaid Notification dated March 2, 1963, issued by the State Government under Section 2(4) of that Act.
The arguments of Mr. Dholakia, appearing for the appellant, may be summarised as follows: (i) The case is governed by the Gujarat Cooperative Societies Act, 1961 (hereafter called the Act of 1961) and not by the Bombay Cooperative Societies Act, 1925 (hereafter referred to as the Act of 1925).
(ii) The phrase "any dispute touching. .the business of the Society", particularly the word "touching" therein, is of very wide amplitude.
It would comprehend any matter which relates to, or concerns or affects the business of the Society.
Every society, ex necessitiate employs some servants for the purpose of carrying on its business.
That being so, the payment of wages, appointment and removal of its servants under law is a part of the business or "touches" the business of the Society.
(Reliance for this argument has been placed on Farkhundali Naunhay vs V. B. Potdar (1).
(iii) Even if contention (ii) is not accepted, the dispute raised by the respondent, Babu Bhai Negracha is one "touching the management of the Society".
The expression 'management ' takes in the entire staff or establishment of servants which run the affairs of the Society.
(iv) Once it is held that the dispute between the Society and its past servant, Babu Bhai Negracha, touches the "business" or the "management" of the Society, or both, within the meaning of Section 96, the Registrar or his nominee, alone, shall have jurisdiction to adjudicate such dispute by compulsory arbitration; and the non obstante clause in the Section shall bar the determination of that dispute by the Industrial Tribunal or the Labour Court under the Bombay Industrial Relations Act.
As against the above, Mr. Rama Reddy, amicus curiae, submitted as under: (i) Since the services of the second respondent were terminated on February 21, 1962, before the Act of 1961 came into force, the Act relevant for this discussion is the Act of 1925.
(ii) Irrespective of whether the Act of 1925 or the Act of 1961 governs the appellant Society, the expression "any dispute" commonly occurring in Section 54 of the Act of 1925 and Section 96 of the 1029 Act of 1961, is restricted in its scope to a dispute of a civil nature which is capable of being resolved by the Registrar or his nominee, and does not take in an industrial dispute between the Society and its workmen which under the B.I.R. Act is triable by the Labour Court/Industrial Tribunals, only.
(iii) B.I.R. Act is a special law, dealing with the special subject of industrial disputes, which in their nature are essentially different from ordinary Civil disputes between an employer and his employee governed by the Law of Contract, B.I.R. Act provides for a special machinery for adjudication of industrial disputes.
As against this, the Cooperative Societies Act of 1925/or of 1961 is a general enactment and it must yield to the B.I.R. Act whenever the provisions of the latter by their language are clearly applicable to a dispute.
Reference has been made to Jullundur Transport Cooperative Society Ltd. vs Punjab State(1).
(iv) The scope of the expression "any dispute touching the business of the Society", occurring in Section 54 of the Act of 1925/or Section 96 of the Act of 1961 is limited to disputes directly relating to the actual trading or commercial activities of the Society.
This expression does not take in a dispute between the Society and its employee relating to the conditions of his employment, which will include the termination of his employment.
This point is concluded by the decision of this Court in Cooperative Central Bank Ltd. vs Additional Industrial Tribunal, Hyderabad(2), which follows the ratio of its earlier decision in Deccan Merchants Cooperative Bank Ltd. vs Dalichand Jungraj Jain(3).
In view of these decisions, the ratio of Farkhundali 's case (ibid) decided by the Bombay High Court, is no longer good law.
(v) The expression "management" in Section 96 of the Act of 1961, means "the Board of Directors", or "the Board of Trustees", or the "Managing Committee" or "Executive Body" which has the overall control of the affairs and business of the Society, and it does not include the individual workers or employees, individual workmen or employees of the Society who carry on the day to day administration of the Society; nor will it take in matters touching the service conditions of the servants of the Society such as their appointment to service or their discharge, removal from service and their wages.
A dispute of the kind raised by the second respondent, therefore, 1030 will not fall within the purview of the phrase "any dispute touching the management of the Society" used in Section 96.
Before appreciating the contentions canvassed on both sides, it is necessary to notice the relevant provisions of the Act of 1925 and the Act of 1961.
The relevant part of Section 54 of the Act of 1925, reads thus: "(1) (a) If any dispute touching the constitution or business of Society arises between members or past members of the Society or persons claiming through a member or a past member or between members or past members or persons so claiming and any officer, agent or servant of the Society or its Committee, and any officer, agent, member or servant of the Society past or present, it shall be referred to the Registrar for decision by himself or his nominee. " The corresponding Section 96 of the Act of 1961 lays down: "(1) Notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution, management or business of a Society shall be referred in the prescribed form. .if the parties thereto are from amongst the following: (a) a Society, its Committee, any past Committee, any past or present officer, any past or present agent, any past or present servant or nominee, heir or legal representative of any deceased officer, deceased agent or deceased servant of the Society, or the Liquidator of the Society. " A comparison between the portions of the two Sections, extracted above, brings out two points of difference.
Firstly, in Section 54, there is no non obstante clause, while Section 96(1) begins with the words "Notwithstanding anything contained in any other law for the time being in force".
Secondly, while in Section 54, the word 'management ' does not occur, in the corresponding Section 96(1) of the 1961 Act, the word 'management ' has been inserted in between the words 'constitution ' and 'business '.
It is significant to note that the phrase "any dispute touching the constitution. or business of the Society" is a common feature of both the aforesaid Sections.
We emphasise this fact, because it is this common feature, rather than the points of difference between the two Sections, that holds the key to a correct solution of the problem before us.
1031 From a conspectus of the decisions cited at the Bar, we may devise two broad tests to determine the points in controversy in the instant case.
First, whether the expression "any dispute" spoken of in Section 54 of the Act of 1925, and Section 96 of the Act of 1961, is one which is capable of being resolved by the Registrar or his nominee under the relevant Cooperative Societies Act? Second, whether a dispute raised by a servant against his employer, the Cooperative Society, for setting aside his removal from service on the ground that it was an act of victimisation and for reinstatement in service with back wages, is one "touching the management or business of the Society" within the contemplation of the said provisions? As regards the first test, it is to be noted that the expression "any dispute" has not been defined in the Acts of 1925 and 1961.
The term "dispute" means a controversy having both positive and negative aspects.
It postulates the assertion of a claim by one party and its denial by the other.
The word "any" prefixed to "dispute" may at first glance, appear to give the expression "any dispute" a very wide amplitude covering all classes of disputes, whatever be their nature.
But the context of these provisions, the object and scheme of the Acts of 1925/1961 show that the Legislatures never intended to give such a wide scope to this expression.
The related provisions and the scheme of the Acts unerringly indicate that the expression "any dispute" has been used in a narrower sense limited to contested claims of a civil nature, which could have been decided by civil or revenue courts, but for the provisions with regard to compulsory arbitration by the Registrar or his nominee, found in Section 54 of the Act of 1925/96 of the Act of 1961.
The first indication of this being the right construction, is discernible in sub section (2) of Section 96 which states that when any question arises whether for the purposes of sub section (1) a matter referred to for decision is a dispute or not, the question shall be considered by the Registrar, whose decision shall be final.
This means, it is incumbent on the Registrar to decide as a preliminary issue, whether the dispute is of a kind under sub section (1) of Section 96 falling within his jurisdiction.
If this preliminary issue is found in the negative, he will have no further jurisdiction to deal with the matter.
A further clue to the interpretation of "any dispute" used in Section 96(1) is available in Section 97(1) which prescribes periods of limitation for disputes of the kind specified in its clauses (a) and (b), referred to the Registrar under Section 96.
Sub section (2) of Section 97 which is in the nature of a residuary provision, states that the period of limitation in the case of any dispute other than those mentioned in sub section (1) which are required to be referred to the 1032 Registrar under Section 96, shall be regulated by the provisions of the Indian Limitation Act, "as if the dispute were a suit, and the Registrar as Civil Court".
The last clause of sub section (2) which has been underlined, unmistakably shows that only disputes of a civil nature which could be the subject of civil suits triable by ordinary civil courts, will fall within the scope of the expression "any dispute" used in Section 96(1).
Another definite pointer to the above being the right construction of "any dispute" is available in sub section (3) of Section 98 which provides: "Notwithstanding anything contained in Section 96, the Registrar may, if he thinks fit, suspend proceedings in regard to any dispute, if the question at issue between a society and a claimant or between different claimants, is one involving complicated question of law or fact, until the question has been tried by a regular suit instituted by one of the parties or by the society.
If any such suit is not instituted within two months from the Registrar 's order suspending proceedings, the Registrar shall take action as is provided in sub section (1).
" It is noteworthy that this sub section is substantially in the same terms as the proviso to sub section (1) of Section 54 of the Act of 1925, extracted earlier.
The proviso to sub section (1) of Section 54 of the Act of 1925 corresponding to sub section (3) of Section 98 of the Act of 1961, unmistakably shows that the compulsory arbitration by the Registrar, on a reference under Section 96, only a substitute for adjudication of disputes of a civil nature normally tried by civil courts.
Further indication regarding the nature of disputes which the Registrar may determine, is furnished by Section 166(1) which provides: "166(1).
Bar of jurisdiction of Courts : Save as expressly provided in this Act, no Civil or Revenue Court shall have any jurisdiction in respect of (a) . . (b) any dispute required to be referred to the Registrar, or his nominee, or board of nominees, for decision.
" It will be seen that Section 166, in terms, bars the jurisdiction only of Civil or Revenue Court, and not of the Labour Court or any 1033 Industrial Tribunal constituted under the B.I.R. Act or Industrial Disputes Act to adjudicate industrial disputes.
It is clear that the Legislature never intended to oust the jurisdiction of the Labour Court or the Industrial Tribunal to determine claims and industrial disputes which cannot be adjudicated by the ordinary Civil Courts.
Now, let us turn to the nature of the dispute raised by the second respondent.
Is it a dispute relating to a right which he could establish by filing a suit in a Civil Court? assuming for the moment that nothing in the relevant Cooperative Societies Act is a bar to such a suit.
The answer must be in the negative.
The respondent is not claiming a civil right arising from the contract of employment with the appellant Bank.
What he is claiming is not enforcement of any term of the contract of his employment on the part of his employer.
He is alleging that his services have been terminated unfairly and vindictively because of his legitimate trade union activities, as an act of victimisation.
The relief claimed by him is of reinstatement in service with back wages.
The rights and reliefs which he is claiming could not be determined and granted by a Civil Court in a suit.
As Luding Teller puts it, "a Court of Law proceeds on the footing that no power exists in the Courts to make contracts for people and the parties must make their own contracts.
The Courts reach their limit of power when they enforce contracts which the parties had made." (Quoted with approval in Rohtas Industries Ltd. vs Brijnandan Pandey.(1) The rights claimed by the second respondent are those which are conferred on workmen and employees under the Bombay Industrial Relations Act, to ensure social justice.
Such rights which do not stem from the contract of employment can be enforced only in the Labour Court constituted under the B.I.R. Act.
The Labour Court is competent to grant the relief of reinstatement claimed by the respondent, while in view of Section 21(b) of the Specific Relief Act, then in force, the Civil Court was not competent to grant that relief.
The dispute was raised by the second respondent by writing an approach letter to his employer, the appellant, as required by the Bombay Industrial Relations Act.
In substance, it was an industrial dispute.
It was not restricted to a claim under the contract or agreement of employment.
The Civil Court cannot grant the reliefs claimed by the second respondent.
As rightly submitted by Mr. Rama Reddy, if a Court is incapable of granting the relief claimed, normally, the proper construction would be that it is incompetent to deal with the matter.
1034 The matter can be looked at from another angle, also.
The law of industrial disputes or industrial relations is a special law dealing with rights and obligations specially created by it.
As against this, the provision in Section 54 of the Act of 1925/Section 96 of the Act of 1961 is a general provision.
In accordance with the maxim generalia specialibus non derogant, therefore, nothing in these general provisions can derogate from B.I.R. Act and the Cooperative Society Act must yield to the special provisions in the Bombay Industrial Relations Act, whenever a dispute clearly comes within the language of the latter Act.
In the light of the above discussion, the conclusion is inescapable that the expression "any dispute" referred to in Section 54 of the 1925 Act/Section 96 of the 1961 Act, does not cover a dispute of the kind raised by respondent 2 against the appellant Bank.
Coming now to the second test, it may be observed that to a part of it, the pronouncement of this Court in Cooperative Central Bank Ltd. vs Additional Industrial Tribunal, Hyderabad (ibid), furnishes a complete answer, wherein the interpretation of this very phrase "touching the business of the Society" occurring in Section 61 of Andhra Pradesh Cooperative Societies Act, 1964, which largely corresponds to Section 96 of the Gujarat Act, 1961, came up for interpretation.
The subject matter of the dispute was divided into three issues.
The first issue comprised a number of service conditions including inter alia salary, scales and adjustment or dearness allowance, conveyance charges, provident fund and gratuity, etc.
It was contended on behalf of the Bank that the effect of Section 61 and other provisions of Andhra Pradesh Cooperative Societies Act was to exclude the jurisdiction of the Industrial Tribunal to deal with such disputes under the Industrial Disputes Act.
After noticing a number of decisions and after referring to the previous decision of this Court in Deccan Cooperative Bank, the Court negatived the contention with these observations: "The dispute related to alteration of a number of conditions of service of the workmen which relief could only be granted by an Industrial Tribunal dealing with an industrial dispute.
The Registrar, it is clear from the provisions of the Act, could not possibly have granted the reliefs claimed under this issue because of the limitations placed on his powers in the Act itself.
The word "business" is equated with the actual trading or commercial or other 1035 similar business activity of the society, and since it has been held that it would be difficult to subscribe to the proposition that whatever the society does or is necessarily required to do for the purpose of carrying out its objects, such as laying down the conditions of service of its employee, can be said to be a part of its business, it would appear that a dispute relating to conditions of service of the workmen employed by the society cannot be held to be a dispute touching the business of the society.
Thus it is clear that in respect of the dispute regarding the alteration of various conditions of service, the Registrar or other person dealing with it under Section 62 of the Act is not competent to grant the relief claimed by the workmen at all.
On the principle laid down by this Court in the case of the Deccan Merchants Cooperative Bank Ltd., Civil Appeal No. 358 of 1967 dated 29 8 68, (supra) therefore, it must be held that this dispute is not a dispute covered by the provisions of Section 61 of the Act.
Such a dispute is not contemplated to be dealt with under Section 62 of the Act and must therefore, be held to be outside the scope of Section 61.
" The observations quoted above, negate contention (ii) advanced by Mr. Dholakia.
It however, remains to be considered whether the dispute raised by the second respondent in the present case, comes within the purview of the expression "touching the management of the Society" used in Section 96(c) of the Act of 1961.
In this connection, it may be noticed that just as in Section 96(1), in Section 61 of the Andhra Pradesh Corporation Societies ' Act, 1964, also, which came up for consideration in Cooperative Central Banks ' case before this Court, the term management does occur in the collocation of words "constitution, management or business".
But no specific argument seems to have been then raised that a dispute between the Society and its former servants relating to the conditions of service, comes within the purview of the expression 'touching the management of the Society '.
Perhaps, it was taken for granted that if the dispute was not comprehended by the expression "business of the Society", it would not be covered by the words "management of the Society", either.
Although there is little discussion in the judgment about the ambit and import of the expression "management", yet in conclusion, it was clearly and emphatically held 1036 that the dispute in that case was "outside the scope of Section 61.
" We will now, focus attention on the expression "management of the Society" used in Section 96(1) of the Act of 1961.
Grammatically, one meaning of the term 'management ' is: 'the Board of Directors ' or 'the apex body ' or Executive Committee at the helm which guides, regulates, supervises, directs and controls the affairs of the Society '.
In this sense, it may not include the individuals who under the over all control of that governing body or Committee, run the day to day business of the Society.
(see Words and phrases, by West Publishing Co. Permanent Edition, Vol. 26, page 357, citing, Warner & Swasey Co. vs Rusterholz D. C. Minn.(1).
Another meaning of the term 'management ', may be: 'the act or acts of managing or governing by direction, guidance, superintendence, regulation and control the affairs of a Society. ' A still wider meaning of the term which will encompass the entire staff of servants and workmen of the Society, has been canvassed for by Mr. Dholakia.
The use of the term 'management ' in such a wide sense in Section 96(1) appears to us, to be very doubtful.
Be that as it may, what has been directly bidden "out of bounds" for the Registrar by the very scheme and object of the Act, cannot be indirectly inducted by widening the connotation of 'management '.
A construction free from contexual constraints, having the effect of smuggling into the circumscribed limits of the expression "any dispute", a dispute which from its very nature is incapable of being resolved by the Registrar, has to be eschewed.
Thus considered, a dispute raised against the Society by its discharged servant claiming reliefs, such as reinstatement in service with back wages, which are not enforceable in a Civil Court, is outside the scope of the expression "touching the management of the Society" used in Section 96(1) of the Act of 1961, and the Registrar has no jurisdiction to deal with and determine it.
Such a dispute squarely falls within the jurisdiction of the Labour Court under the B.I.R. Act.
Learned counsel for the appellant tried to argue as a last resort that the relief sought by the second respondent could be granted by the Registrar by relaxing or moulding the Staff Regulations and Bye laws which lay down conditions of service governing the employees of the Society.
It is pointed out that under the Act of 1961, the Registrar has the power to amend or modify such Regulations and Bye laws.
1037 We find no merit in this contention, also.
A similar argument was advanced before this Court in Cooperative Central Bank 's Case, ibid, and was repelled inter alia, with the reasoning that the bye laws of the Bank, containing the conditions of service were in the nature of a contract between the Bank and its employees and a change of such bye laws, embodying the conditions of employment, "could not possibly be directed by the Registrar where, under section 62 (4) of the (ANDHRA) Act, he is specifically required to decide the dispute referred to him in accordance with the provisions of the bye laws".
It was further observed that a dispute referred to the Registrar can even be transferred for disposal to a person who may have been invested with powers in that behalf, or may be referred for disposal to an arbitrator.
But neither the Registrar nor his nominee will be competent to grant the relief requiring a change in the service conditions of the employees, under section 62 of the Andhra Act.
Such a relief could be granted only by the Industrial Tribunal which under the Industrial Disputes Act, has the jurisdiction even to vary contracts of service between an employer and employees.
This reasoning is applicable mutatis mutandis to the instant case.
For all the foregoing reasons, the appeal fails and is dismissed with costs.
In token of our gratitude for the valuable assistance rendered to us by Shri Rama Reddy as amicus curiae, we direct that an honorarium of Rs. 1500/ be paid to him, which shall be taxed as costs awarded against the appellant.
V.D.K. Appeal dismissed.

summary/full:
The appellant Bank was a society registered under the Bombay Co operative Societies Act, 1925 and with the coming into force from May 1, 1962 of the Gujarat Co operative Societies Act, 1961, it came to be governed by the said Act.
By Notification No. BIR 1362 5 H dated March 2, 1963, the Government of Gujarat directed under section 2(4) of the Bombay Industrial Relations Act, 1946 (Bombay Act 11 of 1947) that all the provisions of the said Act shall apply with effect from March 15, 1963 to the business of banking by Co operative Banks in the Saurashtra and Kutch areas of the State, registered and deemed to be registered under the Gujarat Co operative Societies Act, 1961.
The second respondent, Babu Bhai Negracha who was working as an additional supervisor in the Dasada Branch of the appellant Bank and whose services were terminated by an order dated February 21, 1962, by giving him one month 's pay in lieu of notice under Staff Regulation No. 15, filed an application in the Labour Court Rajkot, alleging that his services had been illegally and maliciously terminated as an act of victimisation on account of his trade union activities and praying for setting aside the order of his termination of service and for reinstatement with full back wages.
The Labour Court by its order dated June 11, 1963, over ruled the preliminary objection raised by the appellant Bank, namely, that "the Bombay Industrial Relations Act, 1946 under which the application was made by the respondent was not applicable to its case, as it was a co operative society governed by the Gujarat Co operative Societies Act, under which only the Registrar or his nominee had jurisdiction to decide the dispute, and the Labour Court had no jurisdiction to entertain and decide the application".
The appellant Bank 's writ petition challenging the said order of the Labour Court was dismissed by the Gujarat High Court by its judgment dated August 25, 1967.
Dismissing the appeal by certificate, the Court ^ HELD: 1.
No new plea can be raised for the first time in the Supreme Court, as a matter of right.
In the instant case, the new plea that "the appellant is not doing banking business" was not entertained for the reasons 1024 namely (i) it was much too belated; (ii) it stood in direct contradiction to the position taken by the appellant in its writ petition and the affidavit in support thereof in the High Court wherein it had been clearly admitted that "the society is engaged in the business of banking" and (iii) it was not a purely legal plea but a mixed plea of law and fact and could not be determined on the basis of material already on the record.
[1027 F G] 2.
The expression "any dispute" referred to in Section 54 of the Bombay Cooperative Societies Act, 1925 and in Section 96 of the Gujarat Cooperative Societies Act, does not cover a dispute of the kind raised by respondent 2 against the appellant bank.
[1034 C] (a) It is clear from the object and the scheme of the Acts of 1925 and 1961 that the legislature never intended to give such a wide scope to the expression "any dispute" so as to cover all classes of disputes whatever be their nature as the prefix "any" to "dispute" appears to give.
The term "dispute" means a controversy having both positive and negative aspects.
It postulates the assertion of a claim by one party and its denial by the other.
[1031 C D] (b) The expression "any dispute" has not been defined in the Acts of 1925 and 1961.
This expression has been used in a narrower sense limited to contested claims of a civil nature, which could have been decided by civil or revenue courts, but for the provisions with regard to compulsory arbitration by the Registrar or his nominee found in Section 54 of the Bombay Act of 1925 and in Section 96 of the Gujarat Act, 1961.
The words "as if the dispute were a suit and the Registrar as Civil Court" occurring in sub section (k) of Section 97 of the Gujarat Act, also make this position clear.
[1031 C, D, E, G] (c) The compulsory arbitration by the Registrar on reference under section 96 is only a substitute for adjudication of disputes of a civil nature normally tried by the Civil Court.
It is incumbent, under sub section (2) of section 96 of the 1961 Act, on the Registrar to decide as a preliminary issue, whether the dispute is of a kind under sub section (1) of section 96 falling within his jurisdiction.
If this preliminary issue is found in the negative he will have no further jurisdiction to deal with the matter.
[1031 F, G 1032 F] (d) Thus considered, a dispute raised against the Society by its discharged servant claiming reliefs, such as, reinstatement in service with back wages, which are not enforceable in a civil court, is outside the scope of the expression "touching the management of the Society" used in section 96(1) of the Act of 1961, and the Registrar has not jurisdiction to deal with and determine it.
What has been directly bidden "out of bounds" for the Registrar by the very scheme and object of the Act, cannot be directly inducted by widening the connotation of 'management '.
Such a dispute squarely falls within the jurisdiction of the Labour Court under the Bombay Industrial Relations Act.
[1036 E G] 3.
The law of Industrial disputes or Industrial Relations is a special law dealing with rights and obligations specially created by it.
The provisions in section 54 of the Bombay Act and in section 96 of the Gujarat Act being general provisions in accordance with the maxim generalia specialibus non derogant, nothing in these general provisions can derogate from Bombay Industrial Relations Act, and the Cooperative Societies Act must yield to the special provi 1025 sions in the Bombay Industrial Relations Act, whenever a dispute clearly comes within the language of the latter Act.
Section 166(1) of the Gujarat Act, in terms, bars the jurisdiction only of Civil or Revenue Court, and not of the Labour Court or any Industrial Tribunal constituted under the Bombay Industrial Relations Act or Industrial Disputes Act.
The legislature never intended to oust the jurisdiction of the Labour Court or the Industrial Tribunal to determine claims and industrial disputes which cannot be adjudicated by the ordinary Civil Court.
[1032 H, 1033 A, 1034 A B] In the instant case : (a) The Labour Court is competent to grant the relief of reinstatement while in view of section 21(b) of the Specific Relief Act, then in force, the Civil Court was not competent to grant that relief.
If a Court is incapable of granting the relief claimed, normally the proper construction would be that it is incompetent to deal with the matter.
[1033 F, H] (b) The dispute was raised by the second respondent by writing an approach letter to his employee, the appellant, as required by the Bombay Industrial Relations Act.
In substance, it was an industrial dispute.
It was not restricted to a claim under the contract or agreement of employment.
[1033 F G] (c) The rights and reliefs claimed by the second respondent could not be determined and granted by a Civil Court in a suit.
His allegation was that his services were terminated unfairly and vindictively because of his legitimate trade union activities, as an act of victimisation.
The relief claimed is reinstatement in services with back wages.
The rights claimed are those which are conferred on workmen and employees under the Bombay Industrial Relations Act to ensure social justice.
Such rights which do not stem from the contract of employment can be enforced only in the Labour Court constituted under B.I.R. Act.
[1033 B F] Jullundur Transport Cooperative Societies Ltd. vs Punjab State, AIR 1959 Pun. 34; approved.
Rohtas Industries Ltd. vs Brijnandan Pandey, ; ; referred to.
(d) Neither the Registrar nor his nominee will be competent to grant the relief of requiring change in the service conditions of the employee.
Such a relief could be granted by the Industrial Tribunal which under the Industrial Disputes Act, has the jurisdiction even to vary contracts of service between an employer and employees.
[1037 C D] Co operative Central Bank Ltd. vs Additional Industrial Tribunal, Hyderabad ; applied.
Farkhundali Naunhay vs V. B. Potdar, AIR 1962 Bom.
362 over ruled.


judgement:
N: Criminal Appeal No. 427 of 1978.
From the Judgment and Order dated 17 10 1978 of the Delhi High Court in Criminal Contempt Petition No. 7/78.
Appellant in person.
K.N. Bhat for Respondent No. 1 R.P. Bhatt, R.B. Datar and Girish Chandra for Respondent 2.
P.G. Gokhale, B.R. Aggarwal, Jenendra Lal and M.S. Diwan for Respondent No. 3.
The Judgment of the Court was delivered by FAZAL ALI, J.
This is an appeal against an order passed by the Delhi High Court refusing to initiate contempt proceedings against the respondents.
It appears that a contempt matter was pending before a Single Judge, Delhi High Court which was heard at length and the judgment was reserved on the 9th December, 1977.
The judgment was actually delivered on 28 4 1978 and in between these two dates certain written submissions were made by the respondents to the Court which the appellant describes in his petition as private communications 937 to the Company Judge.
The respondent P.N. Kaushik in para 36 of the counter affidavit has made a specific allegation that at the time of reserving the judgment the Company Judge had directed the parties to submit their written submissions regarding the points at issue before the judgment is delivered.
The submissions in question were submitted on various dates i.e. 12 12 77 by Major Kaushik, 23 1 78 and 15 2 78 by the Director General of Resettlement.
As these submissions were made in pursuance of the order of the Court, they cannot be held to be private communications to the Company Judge in order to decide the case.
As these documents were filed before the Court under the directions of the Court itself, it cannot be said by an stretch of imagination that these documents prejudiced, interfered or tended to interfere with the due course of justice within the meaning of Section 2(c) (ii) and therefore, would not constitute criminal contempt within the meaning of section 2(c) of the Contempt of Court Act.
These submissions form part of the record and, therefore, there is no question of their being regarded as private communications from a litigant to a Judge.
On the contrary, the Director General of Resettlement was appointed as the administrator by the Court itself and being an officer of the court, he was at liberty to make submissions to the court in respect of the case in question.
The High Court therefore was fully justified in declining to issue any notice for contempt against the respondents on the submissions filed by the appellant.
We would refrain from making any comment regarding the merits of the appeal which the appellant has filed before the Division Bench against the order of the Company Judge dated 28th April, 1978, which we understand is pending hearing before the Division Bench.
The appeal filed by the appellant in this Court is totally misconceived and is rejected.
In the circumstances of this case, we make no order as to costs.
P.B.R. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
When one of the parties to a case pursuant to the directions of the court, makes written submissions after the Judgment was reserved, such submissions cannot be called private communication to the Judge.
They cannot be said to have prejudiced, interfered with or tended to interfere with the due course of justice within the meaning of section 2(c)(ii) of the Contempt of Court Act.
These submissions formed part of the record.
[937 B D] In the instant case in his counter affidavit filed after the Judgment was reserved the respondent stated that he was filing the statements pursuant to the directions of the Company Judge.
The High Court was justified in declining to issue a notice for contempt against the respondents.
[937 A E]


judgement:
Civil Appeal No. 1897 of 1976 .
Appeal by Special Leave from the Judgment and order dated 24 10 1975 of the Kerala High Court in T.R.C. No. 86/74.
Dr. V. A. Seyid Muhammed and K. R. Nambiar for the Appellant.
Dr. Y. section Chitale and Mrs. Sunanda Bhandare for the Respondent.
The assessee is a private limited company carrying on business as sole selling agent for a certain brand of welding electrodes.
For the goods supplied to retailers, it charged them the catalogue price less trade discount.
The catalogue price is the price which the retailer is entitled to charge the consumer.
For the assessment year 1971 72, the returns filed under the showed a taxable turnover of inter State sales amounting to Rs. 8,71,624.
This figure was derived by deducting from the catalogue price the amount of Rs. 1,06,708 paid as trade discount by the assessee to retailers.
The 933 Sales Tax Officer refused to allow the deduction and computed the taxable turnover at Rs. 9,78,332.
The Sales Tax Officer was of the view that the amount paid by way of trade discount could not be excluded from the catalogue price.
The assessee appealed, and the Appellate Assistant Commissioner upheld its claim that trade discount did not form part of the turnover, and it could not therefore attract sales tax.
A second appeal filed by the Revenue was dismissed by the Appellate Tribunal.
The Revenue applied in revision to the High Court of Kerala and the revision application has been dismissed.
The Revenue appeals.
It is contended before us by the Revenue that the High Court has erred in affirming that an amount paid by way of trade discount cannot be included in the taxable turnover for the purpose of assessment.
It is pointed out that the definition of "sale price" in section 2(h) of the permits the deduction of sums allowed as cash discount only and makes no reference to sums allowed by way of trade discount.
It is contended that in effect the assessee enters into two distinct contracts with the retailer, the first contract relates to the sale of goods at the catalogue price and the second contract stipulates that notwithstanding the liability of the retailer under the first contract to pay the entire sale price, he may actually pay the sale price less trade discount.
On that submission, it is sought to be urged that since the sale is effected under the first contract, the entire amount treated as consideration for the sale under that contract has to be included in the taxable turnover.
We have considered the matter carefully and in our judgment the appeal must fail.
At the outset, it is appropriate that we set forth the two relevant definitions contained in the .
Section 2(j) defines "turnover" to mean "the aggregate of the sale prices received and receivable by him (the dealer) in respect of sales of any goods in the course of inter State trade or commerce . . . ".
And section 2(h) of the Act defines the expression "sale price" to mean "the amount payable to a dealer as consideration for the sale of any goods, less any sum allowed as cash discount according to the practice normally prevailing in the trade . . . ".
It is true that a deduction on account of cash discount is alone specifically contemplated from the sale consideration in the definition of "sale price" by section 2(h), and there is no doubt that cash discount cannot be confused with trade discount.
The two concepts are wholly distinct and separate.
Cash discount is allowed when the purchaser makes payment 934 promptly or within the period of credit allowed.
It is a discount granted in consideration of expeditious payment.
A trade discount is a deduction from the catalogue price of goods allowed by wholesalers to retailers engaged in the trade.
The allowance enables the retailer to sell the goods at the catalogue price and yet make a reasonable margin of profit after taking into account his business expense.
The outward invoice sent by a wholesale dealer to a retailer shows the catalogue price and against that a deduction of the trade discount is shown.
The net amount is the sale price, and it is that net amount which is entered in the books of the respective parties as the amount realisable.
Orient Paper Mills Ltd. vs State of Orissa.
Under the , the sale price which enters into the computation of the turnover is the consideration for which the goods are sold by the assessee.
In a case where trade discount is allowed on the catalogue price, the sale price is the amount determined after deducting the trade discount.
The trade discount does not enter into the composition of the sale price, but exists apart from and outside it and prior to it.
It is immaterial that the definition of "sale price" in section 2(h) of the Act does not expressly provide for the deduction of trade discount from the sale price.
Indeed, having regard to the circumstance that the sale price is arrived at after deducting the trade discount, no question arises of deducting from the sale price any sum by way of trade discount.
Nor is there any question here of two successive agreements between the parties, one providing for sale of the goods at the catalogue price and the other providing for an allowance by way of trade discount.
Having regard to the nature of a trade discount, there is only one sale price between the dealer and the retailer, and that is the price payable by the retailer calculated as the difference between the catalogue price and the trade discount.
There is only one contract between the parties, the contract being that the goods will be sold by the dealer to the retailer at the aforesaid sale price.
We have been referred to Ambica Mills Ltd. & Ors.
vs The State of Gujarat & Anr.
Where the Gujarat High Court rejected the claim of the manufacturer to a deduction of the remission allowed from the sale price to the purchaser on account of a general fall in prices when delivery of the goods was effected.
In our opinion, the case supports the view we are taking.
The sale price remained the stipulated price in the contract between the parties.
The fail in prices 935 occurred after the contract of sale had been finalised, and with a view to relieving the purchaser to some extent of the loss which could have been occasioned thereby, the manufacturer sought to bear part of the loss by granting a rebate or remission to the purchaser.
The Revenue relies on India Pistons Limited vs State of Tamil Nadu.
In that case, the bonus of which deduction was sought by the assessee from the turnover was paid under a bonus discount scheme, not to all customers but only to distributors whose net purchases from the assessee exceeded the target figure agreed to between the parties.
The amount of rebate allowed was credited to the customer 's account and treated as a reserve from which the distributors could make future purchases.
The rebate of bonus discount was not allowed as a deduction by the Madras High Court and, in our opinion, rightly so.
It was in the nature of an incentive bonus paid to distributors whose net purchases exceeded the target figure.
It did not, and could not, affect the sale value of the goods sold by the assessee.
The sale price remained undisturbed in the contract between the parties.
In our judgment, the sale price which enters into the computation of the assessee 's turnover for the purpose of assessment under the is obtained after deducting the trade discount from the catalogue price.
The trade discount allowed by the assessee cannot be included in the turnover.
In the result, the appeal fails and is dismissed with costs.
N.K.A Appeal dismissed.

summary/full:
The respondent assessee is a private limited company carrying on business as sole selling agents for a certain brand of Welding Electrodes.
It charged the catalogue price less trade discount from retailers for the goods supplied.
The catalogue price is the price which the retailer is entitled to charge the consumer.
The returns field under the , showed a taxable turnover of inter state sales amounting to Rs. 8,71,624/ for the assessment year 1971 72.
This figure was derived by deducting Rs. 1,06,708/ from the catalogue price paid as trade discount by the assessee to the retailers.
The Sales Tax officer, refused to allow the deduction and computed the taxable turnover at Rs. 9,78,332/ .
On appeal, the Appellate Assistant Commissioner upheld the assessee 's claim that trade discount did not form part of the turn over and could not, therefore, attract sales tax.
A second appeal was dismissed by the Appellate Tribunal.
A revision application by the Revenue to the High Court was also dismissed.
It was contended (i) that the High Court erred in affirming that an amount paid by way of trade discount, could not be included in the taxable turnover for the purpose of assessment, (ii) that in effect the assessee entered into two distinct contracts with the retailer, the first contract related to the sale of goods at the catalogue price and the second contract stipulated that the retailer could actually pay the sale price less trade discount and that since the sale was effected under the first contract the entire amount treated as consideration for the sale under that contract had to be included in the taxable turn over.
Dismissing the appeal, ^ HELD: It is true that a deduction on account of cash discount is alone specifically contemplated from the sale consideration in the definition of "Sale price" by section 2(h) and that cash discount cannot be confused with trade discount.
They are two separate and distinct concepts.
Cash discount is allowed when the purchaser makes payment promptly or within the period of credit allowed.
It is a discount granted in consideration of expeditious payment.
A trade discount is a deduction from the catalogue price of goods allowed by wholesalers to retailers engaged in the trade.
The allowance enables the retailer to sell the goods at the catalogue price and yet make a reasonable margin of profit after taking into account his business expense.
The outward invoice sent by a wholesale dealer to a retailer shows the catalogue price and against that a deduction of the trade discount is shown.
The net amount is the sale price, and it is that net amount which is entered in the book 's of the respective parties as the amount realisable.
[933 G H,934A C] 932 Orient Paper Mills Ltd. vs State of Orissa (1975) 35 S.T.C. 34 referred to.
Under the Sales Tax Act.
the sale price which enters into the computation of the turnover is the consideration for which the goods are sold by the assessee Where trade discount if allowed on the catalogue price, the sale price is the amount determined after deducting the trade discount.
It is immaterial that the definition of "Sale Price" in section 2(h) of the Act does not expressly provide for the deduction of trade discount from the sale price.
Having regard to the circumstance that the sale price is arrived at after deducting the trade discount, no question arises of deducting from the sale price any sum by way of trade discount.
Nor is there any question here of two successive agreements between the parties, one providing for sale of the goods at the catalogue price and the other providing for an allowance by way of trade discount.
Having regard to the nature of trade discount, there is only one sale price between the dealer and the retailer and that is the price payable by the retailer calculated at the difference between the catalogue price and the trade Discount.
There is only one contract between the parties, the contract being that the goods will be sold by the dealer to the retailer at the aforesaid sale price.
The sale price which enters into the computation of the assessee 's turnover for the purpose of assessment under the Sales Tax Act, is obtained after deducting the trade discount from the catalogue price.
The trade discount allowed by the assessee cannot be included in the turnover.
[934 C E, F, 935] Orient Paper Mills Ltd. vs State of Orissa (1975) 35 STC 84, Ambica Mills Ltd. vs The State of Gujarat and another (1964) 15 STC 367, affirmed.
India Pistons Ltd. vs State of Tamil Nadu (1974) 33 STC 472, distinguished.


judgement:
Special Leave Petition (Civil) No. 1557 of 1979.
From the Judgment and Order dated 1 2 1978 of the Andhra Pradesh High Court in Case Referred No. 114 of 1976.
Soli J. Sorabji, Solicitor General and Miss A. Subhashini for the petitioner.
S.T. Desai, K. J. John and A. K. Verma for the Respondent.
The order of the Court was delivered by KRISHNA IYER, J. We regard the single point, persuasively presented by the learned Solicitor General on behalf of the petitioner (The Commissioner of Income Tax, Andhra Pradesh), as deserving of a speaking order, although in dissent, since the question may arise again and needs to be silenced.
873 Briefly, the facts.
Four brothers, members of a coparcenery, partitioned their family properties, leaving in common a large house in the occupation of their mother.
The eldest, who is respondent before us, sold his own house at a price sufficient to attract handsome capital gains tax, but he pre empted the demand for tax by acquiring the common house from his three brothers who executed three release ,, deeds for a consideration of Rs. 30,000/ each, adjusted towards the extra share (Jeshtabhaga) agreed to be given to the eldest by the next three.
It is common ground that if these release deeds did . amount to purchase of the house, section 54(1) of the Income Tax Act, 1961, would save the respondent from exigibility to tax.
So the short question, neatly identified by the learned Solicitor General is whether release deeds by sharers in favour of one of them whereby the joint ownership of all became separate ownership of one amount to purchase of house property within the meaning of section 54(1) of the Act.
The High Court has held it is and we concur.
Undoubtedly, each , release, in these circumstances, is a transfer of the releaser 's share for consideration to the release.
In plain English, the transferee purchases the share of each of his brothers.
It is for a price of i Rs. 30,000/ each.
Had this been taken from non fraternal owners of shares or from one stranger owner, plain spoken people would have called it a purchase.
Why, then, should legalist be allowed to play this linguistic distortion.
The reason, supposedly supported by an English decision, is that purchase primarily means acquisition for money paid, not adjusted Upjohn, J. in Habshaw Brothers Ltd. vs Mayer has circumspectly said : There are no doubt to be found authorities and statutes which have extended that meaning.
In Mr. T. Cyprian Williams book, the Contract of Sale of Land, at p. 3 he says: " 'sale ', in the strict and primary sense of the word, 'means ' an agreement for the conveyance of property for a price in money; but the word 'sale ' may be used in law in a wider sense and so applied to the conveyance of land for a price consisting wholly or partly of money 's worth other than the conveyance of some other land." Apparently he considered that a sale for something other than money can in a wider sense be properly described as a sale.
We agree.
The signification of a word of plural semantic shades may, in a given text, depend on the pressure of the context or other indicia.
Absent such compelling mutation of sense, the speech of the lay is also the language of the law.
874 We find no reason to divorce the ordinary meaning of the word 'purchase ' as buying for a price or equivalent of price by payment ill kind or adjustment towards an old debt or for other monetary consideration from the legal meaning of that word in Sec.
54 (1).
If you sell your house and make a profit, pay Caesar what is due to him.
But if you buy or build another subject to the conditions of Sec.
54(1) you are exempt.
The purpose is plain; the symmetry is simple, the language is plain.
Why mutilate the meaning by lexical legalism.
We see no stress in the section on 'cash and carry '.
The point pressed must, therefore, be negatived.
We have declined lo hear Sri section T. Desai 's artillery fire although he was armed cap a pie with Mitakshara lore and law.
A point of suffocating scholarship sometimes arrives in court when one nostaligically remembers the escapist verse: "Where ignorance is bliss, "Tis folly to be wise." Amen ! A passing reference to avoidance and evasion of tax was made at the bar, a dubious refinement of a dated legal culture sanctified, though, by judicial dicta.
The court is not the mint of virtue and one day in our Welfare State geared to Social Justice, this clever concept of 'avoidance ' against 'evasion ' may have to be exposed.
Enough unto the day is the evil thereof.
N.K.A. Petition dismissed.

summary/full:
The respondent sold his house at a price sufficient to attract capital gins but he pre empted the demand of tax by acquiring the common house from his brothers for a consideration of Rs 30,000/ each through separate release deeds.
On behalf of the Petitioner, it was contended that release deeds by sharers in favour of one of them amounts to purchase within the meaning of section 54 (1) of the Act.
The High Court having held it is, the Revenue came by way of Special Leave.
Dismissing the Petition, ^ HELD: Each release is a transfer of the releaser 's share for consideration to the release.
In plain English, the transferee purchases the share of each of his brothers for a price.
Had this been taken from non fraternal owners of shares or from one stranger owner, plain spoken people would have called it a purchase.
The reason is supported by decision in Hobshaw Brothers Ltd. vs Mayer, [1956(3) AER 833 and 835] that purchase primarily means acquisition for money paid, not adjusted.
There is no reason to divorce the ordinary meaning of the word 'purchase ' as buying for price or equivalent of price by payment in kind or adjustment towards an old debt or for other monetary consideration from the legal meaning of that word in section 54(1) of the Act.
[873 B D]


judgement:
Civil Appeal No. 1296 of 1978.
Appeal by Special Leave from the Judgment and order dated 7 5 1976 of the Allahabad High Court in Special Appeal No. 9/76.
924 section section Saksena (In person) G. N. Dikshit and M. V. Goswami for the Respondent.
The appellant was appointed by the Government of Uttar Pradesh in November, 1954 as a temporary judicial officer.
The State Government terminated his services in December, 1962 but, on representation made by him, the termination order was withdrawn on January 16, 1963.
The appellant rejoined service and resumed his duties.
However, by an order dated May 18, 1966, his services were terminated again.
On a writ petition filed by him in the Allahabad High Court, the termination order was quashed by the High Court on August 8, 1969.
The appellant was reinstated with the benefit of continuity of service.
His troubles did not end there.
Although he had served for about fifteen years, several representation made by him to the State Government for his confirmation met with no response, and he continued to remain a temporary Government servant.
Meanwhile, in June, 1973 he was allowed to cross the second Efficiency Bar.
But on August 2, 1974 the State Government made an order compulsorily retiring the appellant from service.
The order purports to have been made in exercise of the powers mentioned in Note I to Article 465 A of the Civil Service Regulations, which provide for compulsory retirement of a temporary Government servant on attaining the age of SO years.
The appellant had reached the age of 54 years.
rt was recited in the order that the Governor on being satisfied that it was not in the public interest to retain the appellant, who was described as a temporary judicial officer, required him to retire from service with immediate effect, with three months ' pay in lieu of notice.
The order was assailed by the appellant by a writ petition, and a learned single judge of the High Court allowed the writ petition on September 17, 1975 and quashing the order he declared that the appellant continued to remain in service.
The learned single judge held that the appellant was not covered by the terms of Article 465 A and as regards Article 465, which was invoked in the alternative in support of the impugned order, he took the view that as the appellant was a temporary Government servant only and not entitled to pension, Article 465 also did not apply.
The State of Uttar Pradesh appealed, and a Division Bench of the High Court has, by its order dated May 7, 1976 allowed the appeal and dismissed the writ petition.
The Divi 925 sion Bench confirmed that as the appellant was a temporary judicial officer, Note 1 to Article 465 A could not be pressed into service by the State Government for retiring him, but it maintained the order with reference to Note 1 to Article 465 holding that the provision entitled the State Government to retire any Government servant attaining the age of SO years on three months ' notice or pay in lieu thereof.
lt observed that the power of the State Government to compulsorily retire a Government servant was not dependent on his eligibility for pension.
It was of the view that the appellant, although a temporary Government servant, could be compulsorily retired under Note 1 to Article 465.
The further contention of the appellant was also rejected that the impugned order was arbitrary inasmuch as he had been allowed to cross the second Efficiency Bar in June, 1973, which could only have been if his work showed distinct ability and his integrity was beyond doubt and, he urged, nothing had taken place since to justify the order of compulsory retirement passed shortly thereafter.
Several contentions have been raised in this appeal by the appellant, who appears in person.
In our judgment, one of theem suffices to dispose of the appeal.
The contention which has found favour with us is that on a perusal of the material on the record and having regard to the entries in the personal file and character roll of the appellant, it is not possible reasonably to come to the conclusion that the compulsory retirement of the appellant was called for.
This conclusion follows inevitably from the particular circumstance, among others, that the appellant was found worthy of being permitted to cross the second Efficiency Bar only a few months before.
Ordinarily, the court does not interfere with the judgment of the relevant authority on the point whether it is in the public interest to compulsorily retire a Government servant.
And we would have been even more reluctant to reach the conclusion we have, when the impugned order of compulsory retirement was made on the recommendation of the High Court itself.
But on the material before us we are unable to reconcile the apparent contradiction that although for the purpose of crossing the second Efficiency Bar the appellant was considered to have worked with distinct ability and with integrity beyond question yet within a few months thereafter he was found so unfit as to deserve compulsory retirement.
The entries in between in the records pertaining to the appellant need to be examined and appraised in that context.
There is no evidence to show that suddenly there was such deterioration in the quality of the appellant 's work or integrity that he deserved to be compulsorily retired.
For all these reasons, we are of opinion that the order of compulsory retirement should be quash 926 ed.
The appellant will be deemed to have continued in service on the date of the impugned order.
The appellant pressed us vehemently to make an order directing his confirmation and pointed out that after he was compulsorily retired as many as 12 temporary judicial officers were considered for confirmation We consider that it would not be right to make the direction prayed for by the appellant.
Whether he should be confirmed or not is a matter for the relevant authority.
That is a matter to which the authority has yet to apply its mind, and in the circumstances it is not proper that we should pre empt its judgment.
The appeal is allowed and the order dated May 7, 1976 of the Division Bench of the High Court is set aside.
The order of the learned single judge quashing the impugned order of the State Government is restored.
The respondent will pay the costs of this appeal to the appellant.
N.V.K .
Appeal allowed.

summary/full:
The services of the appellant who was appointed in November 1954 were terminated in December 1962, but the termination order was withdrawn on January 16, 1963 and he rejoined service and resumed his duties.
Again his services were terminated by an order dated May 18, 1966.
This order having been quashed by the High Court in August 8, 1969, the appellant was reinstated with the benefit of Continuity of service.
In June 1973 he was allowed to cross the second Efficiency Bar, but on August 2, 1974 the State Government made an order compulsorily retiring him from service.
In the appellant 's writ petition, quashing the order of compulsory retirement, a single Judge of the High Court declared that the appellant continued to remain in service.
In allowing the appeal of the State, the Division Bench of the High Court rejected the appellant 's contention that the order of compulsory retirement was arbitrary because nothing to justify the order had taken place after he was allowed to cross the second Efficiency Bar in June 1973.
11 Allowing the appeal this Court, ^ HELD: 1.
The compulsory retirement of the appellant was not called for on the facts of this case.
The appellant will be deemed to have I continued in service on the date of the impugned order [925 H 926A] 2.
The appellant was found worthy of being permitted to cross the second Efficiency Bar only a few months before.
Although this Court does not ordinarily interfere with the decision of the relevant authority in a case of this kind particularly when the order was made on the recommendation of the High Court, it is difficult to reconcile the apparent contradiction that for the purpose of crossing the second Efficiency Bar the appellant was considered to have worked with distinct ability and with integrity beyond question, yet with in a few months thereafter he was found so unfit as to deserve compulsory retirement.
There is no evidence to show that suddenly there was such deterioration in the quality of the appellant 's work or integrity that he deserved to be compulsorily retired.
[925 F H]


judgement:
Civil Appeal No. 2366 of 1972.
From the Judgment and order dated 25 3 1971 of the Calcutta High Court in Income Tax Ref.
No. 120/69.
V. section Deasi, section R. Agarwal, Anil Sachthey, Praveen Kumar and Miss Bina Gupta for the Appellant.
T. A. Ramachandran and Miss A. Subhashini for the Respondent.
The assessee is a company carrying on the business of manufacturing jute goods.
The case relates to the assessment year 1960 61, for which the relevant accounting period is the financial year ending Match 31, 1960.
While making the assessment for the assessment year 1959 60, the Income Tax officer set off the unabsorbed business loss of Rs. 1,58,845 for 1949 50 and Rs. 5,70,952 for 1950 51 against the business income of that year and directed that Rs. 15,50,189 representing the loss remaining unabsorbed should be carried forward.
In the assessment proceeding for the assessment year 1960 61, with which we are concerned, the assessee claimed that the unabsorbed loss should be carried forward and set off against the business income of the current year.
The Income Tax officer rejected the claim on the ground that the unabsorbed loss related to 1950 51 and could not be carried forward for more than eight years.
The assessee pressed the claim in appeal before the Appellate Assistant Commissioner but without success.
A second appeal was dismissed by the Income Tax Appellate Tribunal.
At the instance of the assessee, the Appellate 908 Tribunal referred the following question of law to the High Court at Calcutta: "Whether, on the facts and circumstances of the case, the assessee was entitled in law to set off unabsorbed loss of Rs. 15,50,189 of the assessment year 1950 51 against the business income of the assessment year 1960 61 ?" The High Court answered the question in the negative.
In this appeal by the assessee it is contended that by virtue of section 24(2) (iii) of the Indian Income Tax Act, 1922, as it stood before its amendment with effect from April 1, 1957, the assessee had acquired a vested right to have the unabsorbed loss carried forward from year to year until it was completely set off and the subsequent amendment limiting the period for carrying forward the loss to eight years could not divest the assessee of the vested right which had thus accrued to him.
It is pointed out that the amendment effected in 1957 is not retrospective in operation.
In our judgment, there is no substance in the assesse 's claim.
Section 24(2) has suffered amendment a number of times.
Prior to its amendment by the Finance Act, 1955 it permitted a business loss to be carried forward for not more than six years, except in the case of losses pertaining to certain assessment years ending with the assessment year 1943 44 where the period for carrying forward was shorter.
Section 16 of the Finance Act, 1955 amended section 24(2), and as a result of the amendment section 24(2) (iii) provided that a businesss loss which was not wholly set off could be carried forward from year to year.
Thereafter, Finance (No. 2) Act of 1957 amended s.24(2) (iii) with effect from April 1, 1957 and in consequence an unabsorbed loss could not now be carried forward for more than eight years.
The assessee claims a vested right under section 24(2) (iii), as it, stood before its amendment in 1957, to have the unabsorbed loss of 1950 51 carried forward from year to year until the loss is completely absorbed.
The claim is based on a misconception of the fundamental basis underlying every income tax assessment.
"It is a cardinal principle of the tax law that the law to be applied is that in force in the assessment year unless otherwise provided expressly or by necessary implication." Commissioner of Income Tax West Bengal vs Isthmian Steamship Lines and Karimtharuvi Tea Estate Ltd. vs State of Kerala on that principle, it is abundantly clear that when an 909 assessment for the assessment year 1960 61 is to be made and section 24(2) is invoked, it is s.24(2) as in force in that assessment year which has to be applied. ' That is the provision as amended by the Finance (No. There is no question of the assessee possessing any vested right under the law as it stood before the amendment.
The assessment for one assessment year cannot, in the absence of a contrary provision, be affected by the law in force in another assessment year.
A right claimed by an assessee under the law in force in a particular assessment year is ordinarily available only in relation to a proceeding pertaining to that year.
Therefore, inasmuch as the provisions of section 24(2), as amended in 1957, govern the assessment for the assessment year 1960 61, the High Court is right in affirming that the unabsorbed loss of Rs. 15,50,189 of the assessment year 1950 Sl cannot be carried forward for more than eight years, and consequently cannot be set off against the business income of the assessment year 1960 61.
It is pointed out that the Appellate Assistant Commissioner mentioned in his order for the assessment year 1959 60 that the unabsorbed loss of Rs. 15,50,189 should be carried forward.
That direction has meaning only if the law in force in the assessment year 1960 61 permits the unabsorbed loss to be carried forward into the assessment of that year.
The direction by the Appellate Assistant Commissioner assumes that it the law permits the unabsorbed loss to be carried forward into future years, but as we have seen that is not the law and, therefore, the assessee can derive no advantage from that direction.
The assessee relies on the judgment of this Court in Commissioner of Income Tax Kerala vs Helen Rubber Industries Ltd.(l) That was a case, however, where paragraph 3 of the Taxation Laws (Removal of Difficulties) order, 1950 operated to divide the previous years to which the provision of the Travancore Income Tax Act, 1946 applied from those previous years to which the provisions of the Indian Income Tax Act, 1922, brought into force in the State of Travancore in 1950, would apply.
It was because of the Removal of Difficulties order that the Court held that since under the Travancore Law the loss could be carried forward for two years only and those two years ended be fore the previous years for which the Indian Income Tax Act began to apply, the benefit of the period of six years under the Indian Income Tax Act would not be available.
The case is clearly distinguishable.
In the result, the appeal fails and is dismissed.
P.B.R. Appeal dismissed.

summary/full:
Section 24(2)(iii) of the Indian Income Tax Act, 1922 as it stood in 1955 provided that a business loss which was not wholly set off should be carried forward from year to year.
In consequence of an amendment to the section made in 1957 the carry forward of unabsorbed loss could not be effected for more than eight years.
After setting off unabsorbed losses for the assessment years 1949 50 and 1950 51 the Income Tax officer directed that the loss remaining unabsorbed in the year 1950 51 be carried forward.
The assessee 's plea that the unabsorbed loss of the year 1950 51 should be set off against the business income of the assessment year 1960.61 was rejected by the Income Tax officer on the ground that the unabsorbed loss of the year 1950 51 could not be carried forward for more than eight years.
The assessee was unsuccessful in appeal before the Appellate Assistant Commissioner and the Appellate Tribunal.
The High Court answered the reference against the Assessee.
In appeal to this Court it was contended that by virtue of section 24(2) (iii) of the Act, as it stood before its amendment in 1957, the assessee had acquired a vested right to have the unabsorbed loss carried forward from year to year until it was completely set off and that the subsequent amendment limiting the period to eight years could not divest the assessee of the vested right already accrued to him.
Dismissing the appeal, ^ HELD: The unabsorbed loss of the assessment year 1950 51 could not be carried forward for more than eight years and consequently could not be set off against the business income of the assessment year 1960 61.
[909 C] 1.
(a) It is a cardinal principle of the tax law that the law to be applied is that in force in the assessment year unless otherwise provided expressly or by necessary implication right claimed by an assessee under the law in force In a particular assessment year is ordinarily available only in relation to a proceeding pertaining to that years.
[908 G, 909 B] Commissioner of Income Tax, West Bengal vs Isthmian Steamship Lines, and Karimtharuvi Tea Estate Ltd. vs State of Kerala ; referred to.
907 (b) When an assessment for the assessment year 1960 61 was to be made A and section 24(2) was invoked it was the section in force as ill that assessment year which had to be applied.
There is no question of the assessee possessing any vested right under the law as it stood before the amendment.
[908 H, 909 A B] 2.
The direction of the Appellate Assistant Commissioner that the unabsorbed loss should be carried forward have meaning only if the law in force in the relevant assessment year permits the unabsorbed loss to be carried forward into the assessment of that year the instant case the Appellate Assistant Commissioner assumed that the law permitted the unabsorbed loss to be carried forward into future year.
But that was not the law in the relevant assessment year and therefore the assessee could derive no advantage from that direction.
[909 D E] Commissioner of Income Tax Kerala vs Helen Rubber Industries Ltd. , distinguished.


judgement:
ON: Criminal Appeal No. 11 of 1950.
Appeal under article 134 (1) (c) of the Constitution of India against the Judgment and Order dated the 10th April, 1950, of the High Court of Judicature at Simla in Criminal Revision No. 449 of 1949.
The facts of the case appear in the judgment.
Kundan Lal Arora for the appellant.
S.N. Chopra for the respondent.
May 23.
The Judgment of the Court was delivered by Bose J.
This is a criminal appeal against a convic tion under section 16 of the Punjab Trade Employees Act, 1940, as amended in 1943, read with section 7(1).
The appellant is a shopkeeper who owns and runs a shop in the Cantonment Area of Ferozepore.
He has no "employees" within the meaning of the Act but is assisted by his son in running the shop.
The shop is 673 divided into two sections.
In one, articles of haberdashery are sold; in the other, articles of stationery.
Section 7(1) of the Act as amended requires that "Save as otherwise provided by this Act, every shop . shall remain closed on a close day.
" Sub section (2)(i) states that The choice of a close day shall rest with the owner or occupier of a shop . and shall be intimated to the prescribed authority within etc.
" The appellant made the following choice.
He elected to close the haberdashery section on Mondays and the stationery section on Saturdays and gave the necessary intimation to the prescribed authority to that effect.
On Monday, the 17th of May, 1948, the appellant 's son sold a tin of boot polish to a customer from the haberdash ery, section of the shop.
The appellant was present in person at the time of the sale.
Monday was a close day for the haberdashery section and so the appellant was prosecuted under section 16 read with section 7.
The trying Magistrate held that in selling the article of haberdashery on a close day and in not observing Monday as a close day the appellant had infringed the provisions of section 7(1) of the Act.
He accordingly convicted him and imposed a fine of Rs. 20.
A revision application to the High Court failed.
The High Court held that as the appellant had failed to keep his shop closed one day in the week, his conviction was proper.
A certificate for leave to appeal to this Court, on the ground that a substantial question of law relating to the Govern ment of India Act, 1935, was involved, was granted and that is how we come to be seized of the matter.
The learned counsel for the appellant contended that section 7 of the Act is ultra vires in that it does not fall under any of the items in either the Provincial or the Concurrent Legislative Lists in the Government of India Act, 1935.
In our opinion, the matter can come either under item No. 27 in List II or item No. 27 in List III.
674 Item No. 27 in List II covers "trade and commerce within the Province.
" In our opinion, a Provincial Government could, under that entry, regulate the hours, place, date and manner of sale of any particular commodity or commodities.
It could, for example, state that the sale of explosives or other dangerous substances should only be in selected areas, at specified times or on specified days when extra precau tions for the general safety of the public and those direct ly concerned could be arranged for.
That would appear to be obvious.
In the same way, it could, if it so pleased, say that there shall be no sales on a particular day, say a Sunday or a Friday, or on days of religious festivals and so forth.
Instead of doing that, it has chosen to regulate the internal trade of the Province in this manner which is only one of the various ways in which it could have acted.
The matter can also be brought under item 27 in List III: "welfare of labour; conditions of labour.
" The im pugned section is a general one and applies to all kinds of shops; that is to say, to those in which labour is employed as well as to those which are run by the owners and their families.
The Act in which the section occurs is directed at regulating the hours of employment of persons who are employed in the business of shops or commercial establish ments.
Therefore, in so far as section 7 covers establish ments where labour is employed, it is undoubtedly intra vires.
But it was argued that the section can have no appli cation to shops which an owner runs with or without the assistance of his family.
Reliance for this was placed on section 2 A (i) and (j) which is as follows: "2 A. Nothing in this Act shall apply to (i) persons employed in a managerial capacity . and (j) the members of the family of the employer.
" It was argued that the sale was by the son.
He is not affected by the Act.
Therefore.
he was entitled to sell and he could not sell unless the shop was kept 675 open to enable him to do so.
So also as regards the appel lant, the owner, who was there in a managerial capacity.
In our opinion, this is fallacious because the conviction here is not for the sale but for keeping the shop open on a close day.
Section 2 A (j) does not give the son a right to keep the shop open or, for that matter, a right to sell.
All it says is that he, being a member of the family, shall not be affected by the provisions of the Act.
Section 7(1), on the other hand, is directed against the owner of the shop, not against his family.
It compels the owner to keep his shop closed one day in a week.
It was then contended that if a person employed in a managerial capacity cannot be affected by the Act, then the appellant who was there in that capacity cannot be compelled to close the shop under section 7.
This is also fallacious.
It happens in the present case that the owner and the manag er are the same but the Act obviously makes provision for a class of case in which they are different.
The owner is obliged to close the shop one day in a week, though the manager of the shop can work without, for example, having the twenty four consecutive hours of rest every week which section 7 A enjoins.
The appellant 's capacity as manager will have to be separated from his character as owner for this purpose.
Section 2 A(i) does not control section 7 (1).
Lastly, it was argued that the scheme of the Act makes it plain that it is for ameliorating the conditions of labour employed in shops.
It cannot therefore apply to shops in which no labour is employed, particularly when the family of the "employer" is expressly excluded from the purview of the Act.
For this reason also, it cannot fall under item 27 in List III.
We are of opinion that such a narrow interpre tation cannot be placed upon the entry.
The legislature may have felt it necessary, in order to reduce the possibilities of evasion to a minimum, to encroach upon the liberties of those who would not otherwise have been affected.
That we think it had power to do.
Further, to require a shopkeeper, who employs one or two men, to close and 676 permit his rival, who employs perhaps a dozen members of his family, to remain open, clearly places the former at a grave commercial disadvantage.
To permit such a distinction might well engender discontent and in the end react upon the relations between employer and employed.
All these are matters of policy into which we cannot enter but which serve to justify a wide and liberal interpretation of words and phrases in these entries.
The appeal fails and is dismissed.
Appeal dismissed.

summary/full:
Section 7 sub section
(1) of the Punjab Trade Employees Act, 1940, as amended in 1943, provided that "save as otherwise provided by this Act, every shop shall remain closed on a close day.
" Sub section (2) (i) stated that "The choice of a close day shall rest with the owner or occupier of a shop . and shall be intimated 87 672 to the prescribed authority.
" Clauses (i) and (j) of section 2 A provided that nothing in the Act shall apply to persons employed in a managerial capacity and the members of the family of the employer.
The appellant owned a shop and on a close day the appellant 's son sold an article from the shop, and the appellant was convicted under section 16 of the Act.
It was contended on his behalf that section 7 of the Act was ultra vires as it did not fall under any of the items in either the Provincial or the Concurrent Legislative List of the Government of India Act, 1935, and that, in any event as he did not employ any labour and was also the manager of the shop he cannot be convicted in view of the provisions of clauses (i) and (j) of section 2 A of the Act.
Held, by the Full Court (i) that the provincial Government could under item No. 27 in List 1I regulate the hours, place, date and manner of sale of any commodity and section 7 of the Act was not ultra vires; the matter could also be brought under item 27 in List III "welfare of labour; conditions of labour ;" (ii) clause (j) of section 2 A did not protect the appellant because the conviction was not for the sale by the son but for the appellant having kept the shop open on a close day; (iii) the appellant was not entitled to be exempted under el.
(i) of section 2 A even though he was himself the manager of the shop, because his capacity and liability as an owner must be kept distinct from that of a manager for the purposes of the Act.


judgement:
on No. 569 of 1954.
Under Article 32 of the Constitution for the enforcement of fundamental rights.
Purshotam Trikamdas, section N. Andley and Rameshwar Nath of M/s Rajinder Narain & Co., for the petitioners.
K. L. Misra, Advocate General of Uttar Pradesh, section P. Sinha, K. B. Asthana and C. P. Lal, for the res pondents.
April 16.
The Judgment of the Court was delivered by SINHA J.
This petition under article 32 of the Constitution on behalf of as many as 726 persons, ex 359 patwaris under the first respondent, the State of Uttar Pradesh, seeks the aid of this Court in enforcing the provisions of articles 14 and 16 of the Constitution, on the allegation mainly that they had been denied equality before the law and equal opportunity for employment under the State.
The Revenue Minister of Uttar Pradesh is the second respondent, and the Land Reforms Commissioner of that State is the third respondent.
The Collectors of Meerut, Muza ffarnagar, Aligarh, Badaun and Moradabad are respondents 4 to 8.
It appears that patwaris numbering about 28,000 in the whole of the State of Uttar Pradesh had organised themselves in 1940 into "The U.P. Patwaris Association" with a view to improving their prospects and emoluments.
They were part time servants of the Government in the Revenue Department.
After the Zamindari Abolition Act was brought into operation in that State, their services were very much in demand.
The Association held meetings and passed resolutions demanding increase in pay and allowances and betterment of their service conditions.
These matters were under the consideration of the Government, following upon representations and deputation to the Revenue Minister.
It appears, however, that under bad advice a large number of patwaris in the State went on a "pen down strike" on the 9th January 1953 with the result that the Government withdrew the official recognition of the Association on the 19th February 1953.
In the meantime the new Land Records Manual was published in January 1953 embodying new amended rules regarding recruitment, conditions of service and duties of patwaris.
This brought matters to a head and there was a special session of the Association at Lucknow on the 26th January 1953.
The Association passed resolutions protesting against the revised Land Records Manual.
It was also resolved at the special session that all patwaris should submit their resignations on the 2nd February 1953, requesting that they may be relieved of their work by the 4th March 1953 after which date they will treat themselves as free from all 360 obligations to work under the Government.
In pursuance of that resolution, about 26,000 patwaris in the whole of the State resigned.
There is no doubt that by submitting their resignations en masse the patwaris betrayed a lack of sense of discipline.
By doing so, they apparently intended to paralyse the whole revenue administration in the State and to coerce the Government to accept their demands; but they did not envisage the situation that the Government might accept their resignations and take them at their own words, The Government decided to accept their resignations and the petitioners were relieved of their duties soon after the submission of their resignations, before the 4th March 1953.
On the very next day, the 5th March, Government announced the creation of a new service of "Lekhpals" and proceeded to organise that service by recruiting the new personnel which included most of the old patwaris.
The new cadre also included all those patwaris whose record of service was free from blemishes and who had withdrawn their resignations.
Out of the petitioners also as many as 132 have been absorbed in the new cadre of Lekhpals and many more are likely to be absorbed in the service of Government.
Thus it appears that Government have been giving a locus poenitentiae to those of the ex patwaris who have realized their mistake in joining the agitation aforesaid and thus trying to force the bands of Government.
The petitioners ' grievance is that they have been prevented from re entering the Government service upon the reorganisation of the cadre under the new Dame.
But it is clear that the Government are within their rights to lay down certain qualifications for the new recruits.
They are entitled to exclude those persons who have betrayed a lack of proper sense of discipline.
It cannot therefore be said that the Government have denied an equal opportunity to those who are equal in all respects.
It appears that the Government have not permanently filled all the vacancies in the new cadre.
Those of the petitioners who are prepared to accept the discipline of Government service may approach the proper authorities 361 through the proper channel and we have no doubt that their cases will receive sympathetic consideration at the hands of the Government, consistently with the demands of the exigencies of public service.
Our attention was particularly invited to the new scheme of recruitment as laid down in the Government orders of the 5th March which contained the directions that all patwaris who bad not resigned and who had not reached the age of superannuation would be absorbed, that the patwaris who had resigned but had withdrawn their resignations by the 4th March 1953 would also be absorbed and that of those who had resigned and whose resignations had been accepted, only those will be absorbed who had an excellent record of work and who had not taken an active part in the agitation.
Besides those, fresh recruits also were to be taken in.
With reference to those directions it was contended that the petitioners who came within the category excluded from reap pointment had really been denied equal opportunity of appointment as Lekhpals and that thus article 16 of the Constitution was infringed.
In our opinion, it is open to the appointing authority to lay down the requisite qualifications for recruitment to Government service and it is open to that authority to lay down such prerequisite conditions of appointment as would be conducive to the maintenance of proper discipline amongst Government servants.
If persons already under Government employment on part time basis had shown themselves not to be amenable to proper discipline in Government offices, it was open to Government not to appoint such persons to the permanent cadre of Lekhpals because such persons could not be said to be as efficient as those who bad excellent records of service and had shown greater sense of responsibility to their employers.
Article 16 of the Constitution is an instance of the application of the general rule of equality laid down in article 14, with special reference to the opportunity for appointment and employment under the Government.
Like all other employers, Government are also entitled to pick and choose from amongst a large number of 362 candidates offering themselves for employment under the Government.
As already indicated, the old patwaris held part time jobs under the Government.
The new cadre of Lekhpals is intended to re organise a similar service on a more satisfactory basis both from the point of view of the Government and of the employees themselves.
Under the new scheme, the Lekhpals are intended to be whole time servants of the Government on a considerably higher scale of pay and with better prospects subject, of course, to the Government Ser vants Conduct Rules.
If the Government have decided to exclude all those who had proved themselves as part time servants of the Government to be lacking in a sense of discipline and of responsibility, it cannot be said that they had been denied equal opportunity of appointment and employment under the Government.
Government have not laid down rules excluding any particular group of persons from being candidates for appointment.
They bad only issued de partmental instructions not to employ those who bad not a satisfactory record of service in the past.
Selection for appointment in Government service has got to be on a competitive basis and those whose past service has been free from blemish can certainly be said to be better qualified for Government service than those whose record was not free from any blemish.
The matter thus stands on a basis similar to where the Government may make it a condition precedent to promotion to a higher rank in the same cadre of Government service that only those who had a very satisfactory record in the past would be considered for promotion.
It must therefore be held that the petitioners have failed to substantiate their contention that they had been denied equality of opportunity as contemplated by article 16 of the Constitution.
After moving this Court under article 32 of the Constitution, most of the petitioners and many others, in all 1,352 in number, also made an application for special leave to appeal (being Special Leave Petition No. 426 of 1955) from the judgment and orders of the High Court of Judicature at Allahabad dated the 363 24th August 1954 passed in Civil Miscellaneous Writ No. 45 of 1954, after their application for leave to appeal to this Court had been dismissed by that Court 's order dated the 5th August 1955.
This petition was not filed within the time limited by the rules of this Court and on their own showing there was a delay of 44 days in filing the petition for special leave.
The only ground urged in support of the application for condonation of delay (being Civil Miscellaneous Petition No. 1402 of 1955) is that they bad to collect money from amongst a large number of petitioners who were interested in the case.
In our opinion, that is not a sufficient ground for condoning the delay.
In the result, both the petition under article 32 of the Constitution and the petition for special leave to appeal are dismissed.
There will be no order as to costs.

summary/full:
The petitioners Ex patwaris under the State of Uttar Pradesh brought the present petition under Article 32 of the Constitution in the Supreme Court alleging that the provisions of articles 14 and 16 of the Constitution had been violated because they bad been denied equality before the law and equal opportunity for employment under the State.
Patwaris numbering about 28,000 in the whole State of Uttar Pradesh had organized themselves into "The U.P. Patwaris Associations" with a view to improving their prospects and emoluments.
The association passed resolutions demanding increase in pay and allowances etc.
The Government was considering these matters when a large number of patwaris went on a "pen down strike" with the result that the Government withdrew the recognition of the Association.
The Government further published the new "Land Records Manual" embodying new amended rules regarding recruitment, conditions of service and duties of patwaris.
The Association protested against the revised Land Records Manual and passed a resolution that all patwaris should submit their resignations on the 2nd February, 1953 requesting that they should be relieved of their duties by the 4th March, 1953 after which date they will consider themselves as free from all obligations to work under the Government.
About 26,000 patwaris actually resigned with a view to paralyse the whole revenue administration in the State and to coerce 47 358 the Government into accepting their demands.
The Government however, accepted their resignations and relieved them of their duties before the 4th March, 1953.
On the very next date, the 5th March, 1953, the Government announced the creation of a new service of "Lekhpals" and proceeded to organize that service by recruiting the new personnel which included most of the old patwaris.
It also included all those patwaris whose record of service was free from blemishes and who had withdrawn their resignations.
Some of the petitioners were absorbed in the new cadre of Lekbpals.
The Government was thus giving a locus poenitentiae to those of the ex patwaris who had joined the agitation.
The question for consideration before the Supreme Court was whether the petitioners who came within the category excluded from re appointment had been denied equal opportunity of appointment as Lekhpals and thus article 16 of the Constitution had been infringed.
Held, that the contention of the petitioners that they bad been prevented from re entering Government service upon the re organisation of the cadre under the new name and had been denied equality of opportunity as contemplated by article 16 of the Constitution was without substance as the Government were within their rights to lay down certain qualifications for the new recruits.
They were entitled to exclude those persons who had betrayed a lack of proper sense of discipline.
Article 16 of the Constitution is an instance of the application of the general rule of equality laid down in article 14 with special reference to the opportunity for appointment and employment under the Government.
Like all other employers, Government are also entitled to pick and choose from amongst a large number of candidates offering themselves for employment under the Government.