judgement:
Civil Appeal Nos.
2110 and 21 1 1 of 1978.
Appeals by special leave from the judgment and order dated the 1st February, 1978 of the Delhi High Court in I.T.C. Nos.
14 and 15 of 1974.
311 WITH Civil Appeal Nos.
1184 85 of 1981.
Appeals by special leave from the order dated the 28th September, 1973 of the Income Tax Appellate Tribunal Delhi Bench in I.T.A. No 386 and 387 of 1972 73.
Soli J. Sorabjee, T.A. Ramachandran, Parkash Sarup, Ravinder Narain and Talat Ansari for the Appellant in all the Appeals.
P.A. Francis, S.P. Nayar and Miss A. Subhashini for the Respondent in all the Appeals.
The Judgment of the Court was delivered by C BHAGWATI, J.
These appeals by special leave raise a common question of law relating to the determination of annual value of a building for the purpose of chargeability to tax under the Income tax Act, 1961 where the building is governed by the provisions of the Rent Control legislation but the standard rent has not yet been ID fixed.
The facts giving rise to these appeals are few and may be briefly stated as follows: The assessee constructed a warehouse in Delhi some time in 1961 at a total cost of Rs. 4,13,000/ .
The warehouse consisted of two portions on the ground floor, one on the north and the other on the south and also a mezzanine floor and a first floor.
On 19th March, 1962, the assessee let out the whole of the first floor to the American Embassy at the rent of Rs. 5810/ per month and subsequently on 1st April, 1964 she let out the northern portion of the ground floor together with the mezzanine floor to the same tenant at the rent of Rs. 6907/ per month and on 7th December, 1964 the northern portion of the ground floor was let out to the same tenant at the rent of Rs. 6640/ per month.
Thus the entire warehouse was let out by the assessee to the American Embassy with different portions let out under different tenancies commencing on different dates.
On 17th July, 1967, however, a new lease was entered into between the assessee and the American Embassy for letting out of the entire warehouse at the rent of Rs. 34,797/ per month and this lease came into effect from 1st April, 1968.
The assessee thus started receiving rent at the rate of Rs. 34,797/ per month in respect of the entire warehouse from 1st April, 1968.
The question arose in the course of assessment of the assessee to income tax for the assessment years 1969 70 and 1970 71 as to how the annual value of the warehouse should be determined for the 312 purpose of chargeability to income tax under the head "Income from house property".
Now income from house property chargeable to tax is computable under section 22 which provides that the annual value of property consisting of any buildings or lands appurtenant thereto, of which the assessee is the owner, shall be chargeable to income tax under the head "Income from house property".
Where, therefore, the assessee owns a building, the annual value of such building is chargeable to income tax under the head "income from house property" under section 22.
But the question immediately arises: how is the annual value to be determined ? The answer is provided by section 23 which lays down the mode of determination of annual value.
Sub section (l) of that section as it stood at the material time provided that "for the purposes of section 22, the annual value of any property shall be deemed to be the sum for which the property might reasonably be expected to let from year to year.
The assessee therefore claimed that on a proper construction of sub section (I) of section 23, it was not the actual rent received by the assessee for the warehouse that was material for determining the annual value of the warehouse but the hypothetical amount for which the warehouse might reasonably be expected to let from year to year and since the Delhi Rent Control Act 1958 (hereinafter referred to as the Rent Act) was applicable in the area in which the warehouse was situate, the warehouse could not reasonably be expected to let from year to year at a rent exceeding the standard rent determinable under the provisions of that Act.
The Income Tax officer however, took the view that the actual rent received by the assessee provided the most accurate and satisfactory measure of the amount for which the warehouse might reasonably be expected to let from year to year and the annual value of the warehouse must therefore be taken to be the actual rent received by the assessee and he accordingly assessed the assessee to tax on the basis of the actual rent received by her.
The assessee preferred an appeal to the Appellate Assistant Commissioner for each of the two assessment years challenging the correctness of the view taken by the Income tax officer and contending that the annual value of the warehouse must be taken to be the standard rent determinable under the provisions of the Rent Act, but the appeals were unsuccessful and the determination of the annual value made by the Income tax officer was affirmed.
The Tribunal also took the same view on further appeals by the assessee and by a consolidated order dated 28th September, 1973, confirmed the assessments made on the assessee on the basis of the actual rent received by her.
The Tribunal held relying on the decision of this Court in M.M. Chawala vs J section Sethi, that, in the 313 absence of fixation of standard rent, the agreed rent which is legally A recoverable and not tainted by fraud, relationship or any other consideration must be taken to be the standard rent and hence the actual rent received by the assessee was rightly taken as the annual value of the warehouse.
In the mean time, an application was made for fixation of the standard rent of the warehouse by the new tenant who came to occupy the warehouse after the American Embassy vacated it and on this application, the Rent Controller by an order dated 13th March, 1973 fixed the standard rent at Rs. 34,848.00 per annum under the provisions of the Rent Act.
The assessee aggrieved by the order dated 28th September 1973 made by the Tribunal, preferred two applications one in respect of each assessment year, seeking reference of five questions which, according to the assessee, arose out of the order of the Tribunal, but the Tribunal by a common order dated 26th February, 1974, rejected the applications on the ground that there was only one question of law which arose out of the order of the Tribunal but that was concluded by the decision of this Court in M.M. Chawla 's case (supra) and so far as the other questions were concerned, they were all questions of fact and hence not referable under section 256 (1) of the Income tax Act, 1961.
The assessee thereupon preferred two applications before the High Court of Delhi under section 256 (2) of the Income tax Act, 1961 for directing the Tribunal to make a reference, but these applications also met with the same fate and on the same grounds which found favour with the Tribunal, they were rejected by the High Court by judgment dated 1st February, 1978.
This led to the filing of two petitions for special leave to appeal, one in respect of each assessment year, and these petitions were allowed and special leave granted by this Court, giving rise to civil appeals Nos.
2110 and 2111 of 1978.
Since these two appeals were directed against the judgment of the High Court refusing two call for a reference from the Tribunal, the only question which could have been considered by the Court in these appeals was as to whether any questions of law arose out of the order of the Tribunal requiring to be referred to the High Court and therefore even if the assessee succeeded in the appeals there would not be an end to the litigation but the questions of law formulated by this Court would have to be referred by the Tribunal to the High Court and then the High Court would have to hear the reference and answer the questions referred to it.
This would have delayed considerably the final determination of the questions of law arising out of the order of the Tribunal and it was, therefore.
agreed between the Parties that the following two ques 314 tions of law should be decided by the Court in these appeals, since they admittedly arose out of the order of the Tribunal: (1) "Whether, on the facts and in the circumstances of the case, the actual rent received by the assessee or the standard rent under the Delhi Rent Control Act, should be taken to be the "annual value" of the property within the meaning of section 23 of the Income Tax Act, 1961, (2) Whether, there was any material on record on which the Tribunal could hold that the receipt of Rs. 4,17,674/ from the American Embassy would he reasonable rent for which the property might be let in spite of the fact that properties in the immediate neighbourhood let out to the Bank of Baroda and Indian Oxygen Company Ltd. were let at rents considerably lower.
This Court accordingly made an order directing that these two questions of law should be disposed of by the Court directly, without calling for a reference from the Tribunal.
However, since some doubt was felt whether this Court could directly dispose of the two questions of law arising out of the order of the Tribunal without calling for a reference, the assessee by way of abundant caution preferred two petitions for special leave to appeal directed against the order of the Tribunal dated 28th September, 1973 and on these petitions, special leave was granted by this Court and that is how Civil Appeal Nos.
1184 1185 of 1981 have come up for hearing before us along with C.A. Nos. 2110 and 2111 of 1978.
Though two questions have been formulated by this Court as arising out of the order of the Tribunal dated 28th September, 1973, it is the first which really formed the subject matter of controversy between the parties and since, in our view, that question has to be answered in favour of the assessee, it is not necessary to embark upon a consideration of the second question.
So far as the first question is concerned, it stands concluded by the recent decision of this Court in Dewan Daulat Rai Kapoor etc.
vs New Delhi Municipal Committee.(1) There were three appeals decided by a common judgment in that case and the question which arose for determination in these appeals was as to how the annual value of a 315 building should be determined for levy of house tax where the building is governed by the provisions of the Rent Act, but the standard rent has not yet been fixed.
One of these appeals related to a case where the building was situate within the jurisdiction of the New Delhi Municipal Committee and was liable to be assessed to house tax under the Punjab Municipal Act, 1911 while the other two related to cases where the building was situate within the limit of the Corporation of Delhi and was assessable to house tax under the Delhi Municipal Corporation Act, 1957.
The house tax under both statutes was levied with reference to the 'annual value ' of the building.
The 'annual value ' was defined in both statutes in the same terms, barring a second proviso which occurred in section 116 of the Delhi Municipal Corporation Act, 1957, but was absent in section 3 (1) (b) of the Punjab Municipal Act, 1911.
This proviso was however not material as it dealt with a case where the standard rent was fixed under the provisions of the Rent Act, while in none of the cases before the Court was the standard rent fixed in respect of the building involved in such case.
According to the definition given in both statutes, the 'annual value ' of a building meant the gross annual rent at which the building might reasonably be expected to let from year to year.
The controversy between the parties centered round the question as to what is the true meaning and effect of the expression "the gross annual rent at which such house or building. may reasonably be expected to let from year to year" occurring in the definition in both statutes.
The argument of the Municipal Authorities was that since the standard rent of the building was not fixed by the Controller under section 9 of the Rent Act in any of the cases before the Court and in each of the cases the period of limitation prescribed by section 12 of the Rent Act for making an application for fixation of the standard rent had expired, the landlord in each case was entitled to continue to receive the contractual rent from the tenant without any legal impediment and hence the annual value of the building was not limited to the standard rent determinable in accordance with the principles laid down in the Rent Act, but was liable to be assessed by reference to the contractual rent recoverable by the landlord from the tenant.
The Municipal Authorities urged that if it was not penal for the landlord to receive the contractual rent from the tenant, even if it be higher than the standard rent determinable under the provisions of the Rent Act, it would not be incorrect to say that the landlord could reasonably expect to let the building at the contractual rent and the contractual rent therefore provided a correct measure for determination of the annual value of the building.
This argument 316 was hower rejected by the court and it was held that even if the standard rent of a building has not been fixed by the Controller under section 9 of the Rent Act, the landlord cannot reasonably expect to receive from a hypothetical tenant anything more than the standard rent determinable under the provisions of the Rent Act and this would be so equally whether the building has been let out to a tenant who has lost his right to apply for fixation of the standard rent by reason of expiration of the period of limitation prescribed by section 12 of the Rent Act or the building is self occupied by the owner.
Therefore, in either case, according to the definition of 'annual value ' given in both statutes, the standard rent determinable under the provisions of the Rent Act and not the actual rent received by the landlord from the tenant would constitute the correct measure of the annual value of the building.
The court pointed out that in each case the assessing authority would have to arrive at its own figure of the standard rent by applying the principles laid down in the Rent Act for determination of the standard rent and determine the annual value of the building on the basis of such figure of the standard rent.
The court, on this view, negatived the attempt of the Municipal Authorities in each of the cases to determine the annual value of the the building on the basis of the actual rent received by the landlord and observed that the annual value of the building must be held to be limited by the measure of the standard rent determinable on the principles laid down in the Rent Act and it could not exceed such measure of the standard rent.
Now this was a decision given on the interpretation of the definition of 'annual value ' in the Delhi Municipal Corporation Act, 1957 and the Punjab Municipal Act, .911 for the purpose of levy of house tax, but it would be equally applicable in interpreting, the definition of 'annual value ' in sub sec.
(1) of section 23 of the Income tax Act, 1961, because these definitions are in identical terms and it is impossible to distinguish the definition of 'annual value ' in sub sec.
(I) of section 23 of the Income tax Act, 1961 from the definition of that term in the Municipal Corporation Act, 1957.
and the Punjab Municipal Act, 1911.
We must therefore hold, on an indentical line of reasoning, that even if the standard rent of a building has not been fixed by the Controller under section 9 of the Rent Act and the period of limitation prescribed by section 12 of the Rent Act for making an application for fixation of the standard rent having expired, it is no longer competent to the tenant to have the standard rent of the building fixed, the annual value of the building according to the definition given in sub section (l) of section 23 of the Income tax Act, 1961 must be held to be the standard rent determinable under 317 the provisions of the Rent Act and not the actual rent received by the landlord from the tenant.
This interpretation which we are placing on the language of sub section (1) of sec.
23 of the Income tax Act, 1961, may be regarded as having received legislative approval, for we find that by section 6 of the Taxation Laws (Amendment) Act, 1975, sub section (I) of section 23 has been amended and it has now been made clear by the introduction of clause (b) in that sub section that where the property is let and the annual rent received or receivable by the owner in respect thereof is in excess of the sum for which the property might reasonably be expected to let from year to year, the amount so received or receivable shall be deemed to the annual value of the property.
The newly added clause (b) clearly postulates that the sum for which a building might reasonably be expected to let from year to year may be less than the actual amount received of receivable by the landlord from the tenant.
We are therefore of the view that in the present case the standard rent of the warehouse determinable under the provisions of the Rent Act must be taken to be the annual value within the meaning of sub section (1) of section 23 of the Income tax Act, 1961 D and the actual rent received by the assessee from the American Embassy cannot of itself be taken as representing the correct measure of the annual value.
We must therefore address ourselves to the question as to what would be the standard rent of the warehouse determinable under the provisions of the Rent Act for the assessment year 1969 70 and 1970 71 the relevant accounting years being 1st April 1968 to 31st March 1969 and I st April 1969 to 31 st March 1970.
Now 'standard rent ' is defined in section 2 (k) to mean the standard rent referred to in section 6 or where the standard rent has been increased under section 7, such increased rent.
Section 6 lays down different formulae for determination of standard rent according to different situations.
Clause (A) of sub section (1) enacts provisions for determination of standard rent in case of residential premises.
but we need not refer to those provisions, since we are concerned in the present case not with residential premises but with a warehouse which constitutes non residential premises.
The provisions applicable for determination of standard rent in the case of non residential premises are set out in clause (B) of sub section (I) and there also, we are concerned only with sub clause (2) because the warehouse was admittedly let out for the first time after 2nd June, 1944.
Since the standard rent of the warehouse was not at any time fixed under the Delhi and Ajmer Merwara Rent Control Act, 1947, or the Delhi and Ajmer Rent 318 Control Act, 1952, the standard rent was liable to be determined under paragraph (b) of sub clause (2) which provides that "the rent calculated on the basis of seven and one half per cent per annum of the aggregate amount of the reasonable cost of construction and the market price of the land comprised in the premises on the date of the commencement of the construction" shall be taken to be the standard rent of the premises.
There is a proviso to this paragraph which says that" where the rent so calculated exceeds twelve hundred rupees per annum, this clause shall have effect as if for the words "seven and one half per cent" the words "eight and five eighth per cent" had been substituted.
" But all these provisions for determination of standard rent are subject to the overriding provision enacted in sub section (2) which provides in clause (b), which is the clause applicable in the present case since the warehouse was constructed on or after 19th June, 1955, that in case of such premises. "the annual rent calculated with reference to the rent agreed upon between the landlord and the tenant when such premises were first let out shall be deemed to be the standard rent for a period of five years from the date of such letting out. " Now the first floor of the warehouse was first let out at the rent of Rs. 5810/ per month from 19th March 1962 and therefore under clause (b) of sub section (2) the rent of Rs. 5810/ per month would be the standard rent of the first floor of the warehouse for the period of five years from 19th March 1962 up to 18th March 1967 and thereafter the standard rent would have to be determined under paragraph (b) sub clause (2) of clause (B) of sub section (I) and this latter figure would represent the standard rent of the warehouse determinable under the provisions of the Rent Act for the accounting years 1st April 1968 to 31st March 1969 and 1st April 1969 to 31st March 1970.
The next portion of the warehouse let out to the American Embassy was the northern portion of the ground floor together with the mezzanine floor for the period of five years from 1st April 1964 up to 31st March 1969 under clause (b) of sub section (2) and thereafter it would have to be deter mined under paragraph (b) of sub clause (2) of clause (B) of sub section (1).
Thus for the accounting year 1st April 1968 to 31st March 1969 the standard rent of the northern portion of the ground floor and the mezzanine floor determinable under the provisions of the Rent Act would be Rs. 6907/ per month while for the accounting year 1st April 1969 to 31st March 1970, the standard rent would be that determinable under paragraph (b) of sub clause (2) of clause (B) of sub section (1).
That leaves the southern portion of the ground floor which was first let out to the American Embassy at the rent of Rs. 6640/ per 319 month from 7th December 1964, and according to clause (b) of sub A section (2), the standard rent of this portion would be Rs. 66401 per month for the period of five years from 7th December, 1964 up to 6th December, 1969 and thereafter it would be determinable under paragraph (b) of sub clause 2 of clause (B) of sub section (1).
Thus for the accounting year 1 st April 1968 to 31 st March 1969 and I st April 1969 to 6th December 1969 the standard rent of the southern portion of the ground floor determinable under the provisions of the Rent Act would be Rs. 66401 per month, while for the remaining portion of the accounting year from 7th December 1969 to 31st March 1970, the standard rent would be determinable under paragraph (b) of sub clause (2) of clause (B) of sub section (1).
The annual value of the warehouse for the purpose of chargeability to income tax for the assessment years 1969 70 and 1970 71 would have to be determined on the basis of the standard rent of different portions of the warehouse determinable under clause (b) of sub section (2) and paragraph (b) of sub clause (2) of clause (B) of sub section (1) of section 6 of the Rent Act as discussed above.
D We accordingly answer question No. 1 in favour of the assessee by holding that the standard rent of different portions of the warehouse determinable under the provisions of the Rent Act as indicated above and not the actual rent received by the assessee from the American Embassy should be taken be the annual value of the warehouse within the meaning of sub section (I) of section 23 of the Income tax Act, 1961.
On this view taken by us, the the assessee did not press question No. 2 and hence it is not necessary to answer it.
We allow the appeals of the assessee to this limited extent and direct that the Revenue will pay the costs of the appeals to the assessee.

summary/full:
The appellant assessee constructed a warehouse and let out different portions under different tenancies commencing on different dates.
Later on a new lease was entered into between the assessee and her tenant for letting out of the entire warehouse and the assessee started receiving rent at the rate of Rs. 34,797/ per month in respect of the entire warehouse from 1st April, 1968.
In the course of assessment of the assessee for the assessment years 1969 70 and 1970 71 the question arose as to how the "annual value" of the warehouse should be determined for the purpose of chargeability to income tax under the head "income from house property".
The assessee claimed before the Income.
Tax officer that on a proper construction of sub section (I) of section 23, it was not the actual rent received by her from the warehouse that was material for determining the annual value of the warehouse but the hypothetical amount for which the warehouse might reasonably be expected to be let from year to year, and since the Delhi Rent Control Act 1958 was applicable in the area in which the warehouse was situate, the warehouse could not reasonably be expected to be let from year to year at a rent exceeding the standard rent determinable under the provisions of that Act.
The Income Tax officer rejected this claim and took the view that the actual rent received by the assessee provided the most accurate and satisfactory measure of the amount for which the warehouse might reasonably be expected to let from year to year and the annual value of the warehouse must therefore be taken to be the actual rent received by the assessee and he accordingly assessed the assessee to tax on the basis of the actual rent.
The assessee 's appeals for each of the two assessment years to the Appellate Assistant Commissioner were unsuccessful.
The Income Tax Tribunal took the same view on further appeals by the assessee and held relying on the decision of this Court in M. M. Chawla vs J. section Sethi that in the absence of fixation of standard rent, the agreed rent which is legally recoverable and not tainted by fraud, relationship or any other consideration must be taken to be the standard rent and hence the actual rent received by the assessee was rightly taken as the annual value of the warehouse.
310 The assessee 's applications to the Tribunal as well as to the High Court for the making of a reference under section 256 of the Income Tax Act, 1961 were also dismissed.
Allowing the appeals to this Court, ^ HELD: 1.
The annual value of the building according to the definition given in sub section (l) of section 23 of the Income Tax Act, 1961 is the standard rent determinable under the provisions of the Rent Act and not the actual rent received by the landlord from the tenant.
[316 H 317 A] 2.
In Dewan Daulat Rai Kapoor etc.
vs New Delhi Municipal Committee ; a decision of this Court given on the interpretation of the , definition of 'annual value ' in the Delhi Municipal Corporation Act 1957 and the Punjab Municipal Act 1911 for the purpose of levy of house tax, it was held that even if the standard rent of a building has not been fixed by the Controller under section 9 of the Rent Act, the landlord cannot reasonably expect to receive from a hypothetical tenant anything more than the standard rent determinable under the provisions of the Rent Act and this would be equally so whether the building has been let out to a tenant who has lost his right to apply for fixation of standard rent by reason of expiration of the period of limitation prescribed by section 12 of the Rent Act or the building is self occupied by the owner, and that the standard rent determinable under the provisions of the Rent Act and not the actual rent received by the landlord would constitute the correct measure of the annual value of the building.
[314 H, 316 A C] 3.
This decision though given on the interpretation of the definition of 'annual value ' in the Delhi Municipal Corporation Act 1957 and the Punjab Municipal Act 1911 for the purpose of levy of house tax, would be equally applicable in interpreting the definition of 'annual value ' in sub section (I) of section 23 of the Income Tax Act, 1961 because these definitions are in identical terms and it is impossible to distinguish the definition of 'annual value ' in sub section (1) of section 23 of the Income Tax Act, 1961 from the definition of that term in the Municipal Corporation Act 1957, and the Punjab Municipal Act, 1911.
In the instant case the annual value of the warehouse for the purpose of chargeability to income tax for the assessment years 1969 70 and 1970 71 would have to be determined on the basis of the standard rents of different portions of the warehouse determinable under clause (b) of sub section (2) and paragraph (b) of sub clause (2) of clause (B) of sub section (I) of section 6 of the Rent Act.
[319 C]


judgement:
ition No. 2701 of 1981.
(Under article 32 of the Constitution of India.) section K Mehta, P. N. Puri, E. M. Sardul Anam, M. K Dua and K M. Jain for the Petitioner.
V. M. Tarkunde and section K Jain for Respondents Nos. 7, 8, 15, 25 28, 29, 31, 33, 38, 41.
K Parasaran Sol.
Gen. and Badri Das Sharma for Respondent No. 1.
N.L. Jain and Badri Das Sharma for Respondent No. 2.
Badri Das Sharma for Respondent No. 3.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
What is the ideal mode of selection to a Public Service, by written examination, by oral test (viva voce), or by a combination of both ? If the last, what is the proper, relative weight that should be attached to the written examination and the oral test ? Is the oral test so pernicious in practice, as suggested by some, that it should be abandoned without regrets or the weight to be attached to it be made minimal ? Has any such consensus emerged among the informed and the cognoscenti as to require the Court to scrap a selection as arbitrary on the sole ground that the weight accorded to the oral test appeared to be high ? 323 Pursuant to the Rajasthan Judicial Service rules made by the Governor of Rajasthan in consultation with the Rajasthan Public Service Commission and the High Court of Rajasthan, the Rajasthan Public Service Commission held a competitive examination for recruitment of Munsifs.
The competitive examination consisted of a written examination with two papers in law carrying 100 marks each and two papers, one in Hindi and the other in English, each carrying SO marks and a viva voce examination carrying 100 marks.
The viva voce examination was conducted by a Board consisting of Hon 'ble Mr. Justice P. D. Kudal, Judge, Rajasthan High Court, Shri Hari Datt Gupta, Chairman, Rajasthan Public Service Commission, Adaviappa, Member, Rajasthan Public Service Commission and an expert.
The expert Member was either Dr. I. C. Saxena, or Shri Kagzi or Shri Jallan who sat by rotation.
Schedule III of the Rajasthan Judicial Service rules prescribes the criteria to be considered and the matters to be tested in the viva voce examination.
The relevant paragraph is as follows: "In interviewing the candidates, the suitability for employment to the judicial service shall be decided with reference to his record at the school, College and University and his character, personality, address and physique.
The questions which may be put up to him may be of a general nature and will not necessarily be academic or legal.
The candidates will also be put questions to test the general knowledge including knowledge of current affairs and present day problems.
The marks so awarded shall be added to the marks obtained in the written test by each candidate. '.
The result of the competitive examination was announced by the Rajasthan Public Service Commission on March 12, 1981 and respondent Nos. 3 to 41 were declared selected for appointment.
Out of the 39 candidates who were selected for appointment, one belonged to the scheduled castes and the rest belonged to the general category.
The last of the candidates belonging to the general category who was selected for appointment obtained a total of 190 marks in the examination, 135 in written examination and 55 in the viva voce.
The petitioner who obtained a total of 189 marks, 159 in the written test and 30 in the viva voce was not selected for appointment.
He has filed the present writ petition under article 32 of the Constitution questioning the selection.
324 Shri Mehta learned counsel for the petitioner raised two principal contentions before us.
The first was that the entire selection was vitiated by the allocation of 25 percent of the total marks for the viva voce examination.
The submission was that the allocation of so high a percentage of marks for the interview test introduced an irredeemable element of arbitrariness so as to offend Articles 14 and 16 of the Constitution.
In support of this submission reliance was placed on the decisions of this Court in Ajay Hasia etc.
Khalid Mujib Sehravardi & ors.
etc.(l) Shri Mehta 's second contention was that marks were awarded in the interview test in a single lot instead of sub dividing and awarding marks separately under various heads for the various matters tested in the interview.
Reliance was placed on Periakaruppan vs Stare of ' Tamil Nadu (2).
The object of any process of selection for entry into a public service is to secure the best and the most suitable person for the job, avoiding patronage and favouritism.
Selection based on merit, tested impartially and objectively, is the essential foundation of any useful and efficient public service.
So, open competitive examination has come to be accepted almost universally as the gateway to public services".
"The ideal in recruitment is to do away with unfairness(3)".
"Competitive examinations were the answer to the twin problems represented by democracy and the requirements of good administration.
They were the means by which equality of opportunity was to be united with efficiency.
By this means favouritism was to be excluded and the goal of securing the best man for every job was to be achieved(4)".
"open competitive examinations are a peculiarly democratic institution.
Any qualified person may come forward.
His relative competence for appointment is determined by a neutral, disinterested body on the basis of objective evidence supplied by the candidate himself.
No one has "pull"; everyone stands on his own feet.
The system is not only highly democratic it is fair and equitable to every competitor.
The same rules govern, the same procedures apply, the same yardstick is used to test competence(S).
How should the competitive examination be devised ? The 325 Kothari Committee on Recruitment Policy and Selection methods in their report said: "A system of recruitment almost totally dependent on assessment of a person 's academic knowledge and skills, as distinct from ability to deal with pressing problems of economic and social development, with people, and with novel situations cannot serve the needs of today, much less of tomorrow.
We venture to suggest that our recruitment procedures should be such that we can select candidates who can not only assimilate knowledge and sift material to understand the ramifications of a situation or a problem but have the potential to develop an original or innovative approach to the solution of problems".
It is now well recognised that while a written examination assesses a candidate 's knowledge and intellectual ability, an interview test is valuable to assess a candidate 's overall intellectual and personal qualities.
While a written examination has certain distinct advantage over the interview test there are yet no written tests which can evaluate a candidate 's initiative, alertness, resourcefulness, dependableness, cooperativeness, capacity for clear and logical presentation, effectiveness, in discussion, effectiveness in meeting and dealing with others, adaptability, judgment, ability to make decision, ability to lead, intellectual and moral integrity.
Some of these qualities may be evaluated, perhaps with some degree of error, by an interview test, much depending on the constitution of the interview Board.
O. Glenn Stahl in his Public Personnel Administration points out: "Any form of written test possesses certain administrative advantages over the oral and performance types.
The written form is much easier and cheaper to administer.
It can be given to a large number of individuals at the same time, thus conserving the time of the examiners.
As a general rule it is easier to evaluate objectively, and the technical proficiency demanded in rating is usually, although not always, less.
The oral test has long served as a basic selection tool in private employment but has been more slowly accepted in the public field.
This conservatism arises out of three considerations: (I) the difficulty of developing valid and reliable oral tests; (2) the difficulty of securing a reviewable record of an oral test; and (3) public suspicion of the oral as a channel for the exertion of politi 326 cal influence through the destruction of anonymity.
Despite these acknowledged disadvantages, however, orals have been used increasingly in public personnel testing and have become important instruments wherever tests of personal attributes are considered essential.
As we have noted no satisfactory written tests have yet been devised for measuring such personal characteristics as initiative, ingenuity and ability to elicit cooperation, many of which are of prime importance.
When properly employed, the oral test today deserves a place in the battery used by the technical examiner.
The general principle is that resort should never be had to an oral if the relevant factor to be tested can be measured at some other point in the examining process.
The reason is that the reliability of the oral, even under the best of conditions, tends to be lower than that of the well designed written test.
The oral test should be confined, then, to the evaluation of relevant traits which cannot be measured in any other way" (p. 92) In the United Nations Hand Book on Civil Service Laws and Practice it is said: ". the written papers permit an assessment of culture and intellectual competence.
The interview permits an assessment of qualities of character which written papers ignore; it attempts to assess the man himself and not his intellectual abilities".
Thus, the written examination assesses the man 's intellect and the interview test the man himself and "the twain shall meet" for a proper selection.
If both written examination and interview test are to be essential features of proper selection, the question may arise as to the weight to be attached respectively to them.
In the case of admission to a college, for instance, where the candidate 's personality is yet to develop and it is too early to identify the personal qualities for which greater importance may have to be attached in later life, greater weight has per force to be given to performance in the written examination.
The importance to be attached to the interview test must be minimal.
That was what was decided by this Court in Periakaruppan vs State of Tamil Nadu, Ajay Hasia etc.
vs Khalid Mujib Sehravardi & ors.
, (supra) and other cases.
On the other hand, in the case of services to which recruitment has necessarily to be made from persons of mature 327 personality, interview test may be the only way, subject to basic and essential academic and professional requirements being satisfied.
To subject such persons to a written examination may yield unfruitful and negative results, apart from its being an act or cruelty to those persons.
There are, of course, many services to which recruitment is made from younger candidates whose personalities are on the threshold of development and who show signs of great promise, and the discerning may in an interview test, catch a glimpse of the future personality.
In the case of such services, where sound selection must combine academic ability with personality promise, some weight has to be given, though not much too great weight, to the interview test.
There cannot be any rule of thumb regarding the precise weight to be given.
It must vary from service to service according to the requirements of the service.
the minimum qualifications prescribed, the age group from which the selection is to be made, the body to which the task of holding the interview test is proposed to be entrusted and a host of other factors.
It is a matter for determination by experts.
It is a matter for research.
It is not for Courts to pronounce upon it unless exaggerated weight has been given with proven or obvious oblique motives.
The Kothari Committee also suggested that in view of the obvious importance of the subject, it may be examined in detail by the Research Unit of the Union of Public Service Commission.
In this background, let us now examine the situation presented by the Rajasthan rules.
The Rajasthan Judicial Service rules leave been made by the Governor of Rajasthan in consultation with the High Court of Rajasthan and the Rajasthan Public Service Commission.
The High Court may be expected to know the precise requirements of the judicial service of the State and the calibre of the available source material, while the Public Service Commission is an expert body thoroughly conversant with recruitment policies and selection methods.
Both the High Court and the Public Service Commission are independent bodies, outside executive control, occupying special positions and enjoying special status under the constitution.
Neither is an outside agency.
Both are well acquainted with the particular needs of their State and the people.
If the Governor, in consultation with the High Court and the Public Service Commission of the State makes rules stipulating seventy five percent of the marks for the written examination and twenty five percent for the interview test, on what basis can a Court say that twenty five percent for the interview test is on the high side ? It must not also be forgotten that the interview test is generally conducted 328 and was, in the present case, conducted by a body consisting of a Judge of the High Court, the Chairman and a member of the Public Service Commission an d a special invitee expert.
There can surely be no legitime grievance or hint of arbitrariness against this body.
Yet another factor worthy of consideration is that the candidates expected to offer themselves for selection are not raw Graduates freshly out of college but are persons who have already received a certain amount of professional training.
The source material is such that some weightage must be given to the interview test and can it possibly be said that twenty five per cent of the total marks is an exaggerated weightage.
We may add here that it has been made clear by the Chairman, Rajasthan Public Service Commission on whose behalf a counter affidavit has been filed before us that the marks obtained by the candidates at the written examination were not made available to the members of the interview Board either before or at the time of the interview.
We are unhesitatingly of the view that the selection cannot be struck down on the ground that more than due weightage was given to the interview test.
The second ground of attack must fail for the same reason as the first ground of attack.
The rules themselves do not provide for the allocation of marks under different heads at the interview test.
The criteria for the interview test bas been laid down by the rules.
lt is for the interviewing body to take a general decision whether to allocate marks under different heads or to award marks in a single lot.
The award of marks under different heads may lead to a distorted picture of the candidate on occasions.
On the other hand the totality of the impression created by the candidate on the interviewing body may give a more accurate picture of the candidate 's personality.
It is for the interviewing body to choose the appropriate method of marking at the selection to each service.
There cannot be any magic formulae in these matters and courts cannot sit it judgment over the methods of marking employed by interviewing bodies unless, as we said, it is proven or obvious that the method of marking was chosen with oblique motive.
Both the cases cited before us Periakaruppan 's case and Ajay Hasia 's case were cases of admission to colleges.
We have already pointed out that the provision for marks for interview test need not and cannot be the same for admission to colleges and entry into public services.
In fact in Periakaruppan 's case, even in the case of college admissions the Court observed: 329 "While we do feel that the marks allotted for interview are on the high side and it may be appropriate for the Government to re examine the question, we are unable to uphold the contention that it was not within the power of the Government to provide such high marks for interview or that there was any arbitrary exercise of power".
It is true that in Periakaruppan 's case the Court held that the non allocation of marks under various heads in the interview test was illegal but that was because the instructions to the Selection Committee provided that marks were to be awarded at the interview on the basis of five distinct tests.
It was thought that the failure to allocate marks under each head or distinct test was an illegality.
But, in the case before us, the rule merely and generally indicates the criteria to be considered in the interview test without dividing the interview test into distinct, if we may so call them, sub tests.
We do not think that Periakaruppan 's case, which, as we said, deals with admission to a college, affords any true guidance to us.
Ajay Hasia 's case was also a case of admission to a college.
The Court while upholding the interview test as not irrational or irrelevant though unsatisfactory and capable of abuse, made the following observation: "We would, however, like to point out that in the matter of admission of colleges or even in the matter of public employment, the oral interview test as presently held should not be relied upon as an exclusive test, but it may be resorted to only as an additional or supplementary test and, moreover, great care must be taken to see that persons who are appointed to conduct the oral interview test are men of high integrity, calibre and qualification".
The Court then proceeded to consider the next question raised before them, whether the allocation of 33 113 percent of the total marks for the interview test vitiated the selection procedure as arbitrary and unreasonable.
It was held that it did and reference was made to the fact that even for selection of candidates for the Indian Administrative Service the marks allocated for the interview test were only 12.2 percent of the total.
It was then observed, "under the existing circumstances, allocation of more than 15% of the total marks for the oral interview would be arbitrary and unreasonable and would be liable to be struck down as constitutionally invalid".
The observations of the Court were made, primarily 330 in connection with the problem of admission to colleges, where naturally, academic performance must be given prime importance.
The words "or even in The matter of public employment" occurring in the first extracted passage and the reference to the marks allocated for the interview test in the Indian Administrative Service examination were not intended to lay down any wide, general rule that the same principle that applied in the matter of admission to colleges also applied in the matter of recruitment to public services.
The observation relating to public employment was per incuriam since the matter did not fall for the consideration of the Court in that case.
Nor do we think that the Court intended any wide construction of their observation.
As already observed by us the weight to be given to the interview test should depend on the requirement of the service to which recruitment is made, the source material available for recruitment, the composition of the interview Board and several like factors.
Ordinarily recruitment to public services is regulated by rules made under the proviso to article 309 of the Constitution and we would be usurping a function which is not ours, if we try to redetermine the appropriate method of selection and the relative weight to be attached to the various tests.
If we do that we would be rewriting the rules but we guard ourselves against being understood as saying that we would not interfere even in cases of proven or obvious oblique motive.
There is none in the present case.
The Writ Petition is therefore dismissed but in the circumstances there will be no order regarding costs.
V.D.K. Petition dismissed.

dataset_name: IN-Abs

summary/full:
Pursuant to the Rajasthan Judicial Service Rules made by the Governor of Rajasthan in consultation with the Rajasthan Public Service Commission and the High Court of Rajasthan, the Rajasthan Public Service Commission held a competitive examination for recruitment of Munsifs.
The competitive examination consisted of a written examination with two papers in law carrying 100 marks each and two papers, one in Hindi and the other in English, each carrying SO marks and a viva voce examination carrying 100 marks.
The viva voce examination was conducted by a Board consisting of Hon 'ble Mr Justice P. D. Kudal, Judge, Rajasthan High Court, Shri Hari Dutt Gupta, Chairman, Rajasthan Public Service Commission, Adaviappa, Member, Rajasthan Public Service Commission and an expert.
The expert Member was either Dr. I.C. Saxena, or Shri Kagzi or Shri Jallan who sat by rotation.
Out of the 39 candidates (respondents 3 to 41) who were selected for appointment, one belonged to the scheduled caste and the rest belonged to the general category.
The last of the candidates belonging to the general category who was selected for appointment obtained a total of 190 marks in the examination, 135 in the written examination and 55 in the viva voce.
The petitioner who obtained a total of 189 marks, 159 in the written test and 30 in the viva voce was not selected for appointment.
Hence the writ petition, by the petitioner contending: (a) the allocation of so high percentage of marks for the interview test introduced an irredeemable element of arbitrariness so as to offend Articles 14 and 16 of the Constitution; (b) awarding of marks in the interview test in a single lot instead of sub dividing and awarding marks separately under various heads for the various matters tested in the interview was bad in law.
Dismissing the writ petition, the Court ^ HELD: 1.
The object of any process of selection for entry into a public service is to secure the best and tho most suitable person for the job, avoiding patronage and favouritism.
Selection based on merit, tested impartially and objectively, is the essential foundation of any useful and efficient public service.
[324 C D] 321 1:2.
While a written examination assesses a candidate 's knowledge and intellectual ability, an interview test is valuable to assess a candidate 's overall intellectual and personal qualities.
While a written examination has certain distinct advantages over the interview test there are yet no written test: which can evaluate a candidate 's initiative, alertness resourcefulness, dependableness, co operativeness, capacity for clear and logical presentation, effectiveness in discussion, effectiveness in meeting and dealing with others, adaptability, judgement, ability to make decision, ability to lead, intellectual and moral integrity.
Some of these qualities may be evaluated, perhaps with some degree of error, by an interview test, much depending on the constitution of the interview Board.
Thus the written examination assesses the man 's intellect and the interview test the man himself and "the twain shall meet" for a proper selection.
[325 C E, 326 F] 2.
As regards the weight to be attached respectively to the written test and the oral test, there cannot be any rule of thumb regarding the precise weight to be given.
It must vary from service to service according to the requirements of the service, the minimum qualifications, prescribed, the age group from which the selection is to be made, the body to which the task of holding the interview test is proposed to be entrusted and a host of other factors.
It is a matter for determination by experts and for research.
It is not for courts to pronounce upon it unless exaggerated weight has been given with proven or obvious oblique motives.
[326 F. 327 C D] Periakaruppan vs State Tamil Nadu, [1971] 2 S.C.R. and Ajay Hasia etc.
vs Khalid Mujlb Sehravardi & Ors., A.I.R. 1981 S.C. 487, explained.
Ordinarily recruitment to public services is regulated by rules made under the proviso to Article 309 of the Constitution and courts would be usurping a function which is not theirs, if they try to redetermine the appropriate method of selection and the relative weight to be attached to the various tests.
If the courts do that, they will be rewriting the rules but, however, courts would interfere certainly in cases of proven or obvious oblique motives.
[330 C D] In the instant case, the selection cannot ba struck down on the ground that more than due weightage was given to the interview test: (a) The Rajasthan Judicial Service Rules have been made by the Governor of Rajasthan in consultation with the High Court of Rajasthan and the Rajasthan Public Service Commission.
Both are well acquainted with the particular needs of their State and the people.
If the Governor, in consultation with the High Court and the Public Service Commission of the State makes rules stipulating seventy five per cent of the marks for the written examination and twenty five per cent for the interview test, Courts have no basis on which to say that twenty five per cent for the interview test is on the high side; (b) the interview test is generally conducted and was, in the present case, conducted by a body consisting of a Judge of the High Court, the Chairman and a member of the Public Service Commission and a special invitee expert, and as such no legitimate grievance or hint of arbitrariness could be made against this body; (c) the candidates expected to offer themselves for selection are not raw graduates freshly out of college but are persons who have already received a certain amount of professional training.
The source material is such that some weightage must be given to the interview test 322 and (d) the marks obtained by the candidates at the written examination were not made available to the members of the interviewing Board either before or at the time of the interview.
[327 E H, 328 A C] 4.
Courts cannot sit in judgment over the methods of marking employed by interviewing bodies unless, it is proven or obvious that the method of marking was chosen with oblique motive.
In the instant case, the Rajasthan Judicial Rules generally indicate the criteria to be considered in the interview test without dividing the interview test into distinct sub tests.
It is for the interviewing body to take a general decision whether to allocate marks under different heads or to award marks in a single lot.
The award of marks under different heads may lead to a distorted picture of the candidate on occasions.
On the other hand, the totality of the impression created by the candidate on the interviewing body may give a more accurate picture of the candidate 's personality.
[328 D G] Periakaruppan vs State of Tamil Nadu, [1971] 2 S.C.R. 430 and Ajay Hasia etc.
vs Khalid Mujib Sheravardi and Ors., ; , discussed and distinguished.


judgement:
Civil Appeal No. 2324 of 1980.
Appeal by special leave from the judgment and order dated the 23rd April, 1979 of the Allahabad High Court in Civil Misc.
Writ No. 2228 of 1979.
Dr. L. M. Singhvi, and section K. Verma for the Appellant.
Mrs. Shobha Dikshit for Respondent Nos.
I & 2.
section N. Kacker and B. R. Agarwala & P. G. Gokhale for Respondent No. 4.
The Judgment of the Court was delivered by CHANDRACHUD, C. J.
: The question which arises for consideration in this appeal is whether the appellant, Dr. R. K. 285 Khandelwal, is entitled to be admitted to the M. D. Course in Paediatrics of the Agra University and whether in denying him that opportunity, the State has violated any of his legal rights.
The appellant passed his M.B.B.S. Examination from the section N. Medical College, Agra, in December 1976 and completed his internship in December 1977.
Being desirous of prosecuting post graduate studies in Paediatrics, he took a year s house job in the Paediatrics Department of the section N. Medical College Hospital, which he completed in January 1979.
He then applied for admission to the M. D. Course in Paediatrics for the academic year 1979 80.
He was admitted to the D.C.H. Course but he was refused admission to the M.D. Course on two grounds: First, that amongst the applicants for the M. D. Course in Paediatrics there were four students who had secured higher marks than him in the M.B.B.S. Examination, and second, that on the basis of the 1:1 ratio between teachers and students, there were only four seats available for the post graduate course in Paediatrics.
The appellant filed a writ petition in the High Court of Allahabad challenging the decision of the College by which he was denied admission to M.D. (Paediatrics).
That petition was dismissed summarily by a Division Bench of the High Court on the ground that the relief of mandamus sought by the appellant could not be granted to him since he had failed to establish that any of his legal rights was violated.
This appeal by special leave is directed against the High Court 's order dated April 23, 1979.
The appellant, as stated earlier, was admitted to the D.C.H. Course after he had finished his house job in Paediatrics.
His case is that for many years in the past, candidates who had passed the D.C.H. Examination were preferred for admission to the M. D. Course but that the University suddenly discontinued that practice, as a result of which he had to compete with others who had passed their M.B.B.S. Examination.
There is no substance in this contention and in any case the appellant cannot make a grievance of a change in the practice for admission to the particular course.
Admittedly, there was no rule at any time requiring that an applicant seeking admission to the M.D. Course in Paediatrics had to pass his D.C.H. Examination.
All that is alleged is that such a practice was recognised over many years or at least, that such was the under standing of all concerned.
Both the practice and the understanding have been denied on behalf of the College.
But apart from that, 286 discontinuance of a mere practice cannot sustain a charge of injury to legal rights.
The practice had not ripened into a rule and the University was under no obligation to admit only those who had passed their D.C.H. Examination.
We also feel some difficulty on the facts before us in accepting the contention of the appellant that passing the D.C.H. Examination was a passport for admission to the M.D. Course.
It may, at the highest, be said that it was easier for students to get admitted to the M.D. Course after passing the additional examination of D.C.H. after the M.B.B.S. Examination.
The appellant applied for admission to the M.D. (Paediatrics Course for the academic year 1979 80.
He had passed his M.B.B.S. Examination in December 1976.
There were other students who had applied for admission to the M.D. Course in Paediatrics along with the appellant.
Some of them had passed their M.B.B.S. Examination prior to December 1976 and had secured higher marks than the marks obtained by the appellant in the December 1976 Examination.
The number of seats being limited, admissions were given according to merit and the four students who had secured highest number of marks were given preference to others regardless of the year in which they had passed their M.B.B.S. Examination.
No one was admitted to the 1979 80 academic year for the M.D. Course in Paediatrics, who had secured lesser marks than the appellant.
The four students who secured admission had obtained marks varying between 60.06% to 65.80% while the appellant had secured 58.56% marks only.
He was sixth in order of merit amongst the applicants and there were only four seats available bearing in mind the ratio of 1:1 between the teachers and the students.
Dr. Singhvi, who appears on behalf of the appellant, raised a further contention that the ratio 1:1 was relaxed from time to time by the University and that the appellant was discriminated against by the arbitrary refusal of the authorities to relax the ratio in his favour.
We are prepared to accept that if there is a power to relax the ratio, that power must be exercised reasonably and fairly.
It cannot be exercised arbitrarily to favour some students and to disfavour some others.
But the difficulty in the way of the learned counsel is that this point of discrimination was not taken in the Writ Petition which was filed in the High Court, it was not argued in the High Court and is not even mentioned in the Special Leave Petition before us.
The question as to whether the authorities have the power to relax the ratio and the further question as to whether that power has been exercised arbitrarily in this case raise new points 287 into which it is difficult for us to enquire for the first time.
We are therefore unable to entertain the submission made by the counsel.
The appellant has thus failed to make out a case of injury to any of his legal rights, for which reason the appeal must fail.
The appeal is accordingly dismissed.
But considering that under interim orders passed by this Court from time to time the appellant has appeared for the M.D. Examination on the completion of the Course, we hope that the University and the S.N. Medical College will take a sympathetic view of the appellant 's case and have his result declared.
It may be mentioned that because of the interim orders passed by this Court directing the College and the University to admit the appellant to the M.D. Course in Paediatrics, the College cancelled the appellant 's admission to the D.C.H. Course.
That may have been right because no student can do the D.C.H. Course and the M D. Course simultaneously.
But the point of the matter is that if this Court were not to direct as an interim measure that the appellant should be allowed to prosecute his studies in M.D. Paediatrics (subject to the result of this Appeal), the appellant might have completed his D.C.H. Course and, subject to being admitted to the M.D. Course within a year or so from now he would have taken his M.D. Examination after passing the D.C.H. Examination.
The authorities concerned will bear in mind that the appellant should not be placed in a worse position than he would have been in, had he not filed this appeal.
Therefore, if the appellant has passed the examination, he should be declared to have passed it like any other student.
He should not be subjected to any disadvantage for the reason that he was not entitled initially to be admitted to the M.D. Course in Paediatrics.
If he has failed, he should be permitted to take the examination again (or again and again) in accordance with the rules of the University.
Since the result of the other students, who had appeared for the M.D. Examination along with the appellant, was declared in February 1981, we hope that the appellant 's result would be declared forthwith.
There will be no order as to costs.
N.V.K. Appeal dismissed.

summary/full:
The appellant applied for admission to the M.D. (Paediatrics) Course for the academic year 1979 80.
He had passed his M.B.B.S. Examination in December, 1976.
There were other students who had applied for admission along with the appellant.
Some of them had passed their M.B.B.S. Examination prior to December 1976 and had secured higher marks than the appellant.
The number of seats being limited, admissions were given according to merit and four students who had secured the highest number of marks were given preference to others regardless of the year in which they had passed their M.B.B.S. Examination.
The appellant filed a writ petition in the High Court challenging the E decision of the college by which he was denied admission.
The petition was dismissed summarily by a Division Bench on the ground that the relief of mandamus could not be granted since the appellant had.
failed to establish that any of his legal rights was violated.
In the appeal to this Court it was contended on behalf of the appellant that: (a) For many years in the past candidates who had passed the D.C.H. Examination were preferred for admission to the M.D. Course but that the University suddenly discontinued that practice, as a result of which he had to compete with others who had passed their M.B.B.S. Examination, and (b) the ratio 1:1 between teachers and students was relaxed from time to time by the University and that the appellant was discriminated against by the arbitrary refusal of the authorities to relax the ratio in his favour.
Dismissing the appeal, ^ HELD: The appellant has failed to make out a case of injury to any of his legal rights.
Because of interim orders passed by this Court directing the College and the University to admit the appellant to M.D. Course in Paediatrics, the College cancelled the appellant 's admission to the D.C.H. Course.
If the appellant has passed the M.D. Examination, he should be declared to have passed it like any other student.
He should not be subjected to any disadvantage for the 284 reason that he was not entitled initially to be admitted to the M.D. Course in Paediatrics.
If he has failed he should be permitted to take the examination again (or again and again) in accordance with the rules of the University.
Since the result of the other students, who had appeared for the M.D. Examination along with the appellant, was declared in February, 1981 the appellant 's result to be declared forthwith.
[287 B F] (a) There was no rule at any time requiring that an applicant seeking admission to the M.D. Course in Paediatrics had to pass his D.C.H. Examination.
That such a practice was recognised over many years or that such was the understanding of all concerned has been denied on behalf of the College.
Besides discontinuance of a mere practice cannot sustain a charge of injury to legal rights.
The practice had not ripened into a rule and the University was under no obligation to admit only those who had passed their D.C.H. Examination.
The appellant therefore cannot make a grievance of a change in the practice for admission to the M.D. Course.
[285 G 286 B] In the instant case no one was admitted to the M.D. Course who had secured lesser marks than the appellant.
He was sixth in order of merit and there were only four seats available.
[286 E] (b) If there is a power to relax the ratio, that power must be exercised reasonably and fairly.
It cannot be exercised arbitrarily to favour some students and to disfavour some others.
[286 G] In the instant case this point of discrimination was not taken in the writ petition filed in the High Court, not argued in the High Court, and not even mentioned in the Special Leave Petition.
The question as to whether the authorities have the power to relax the ratio and the further question as to whether that power has been exercised arbitrarily raise new points into which it is difficult to enquire for the first time.
This plea cannot therefore be entertained.
[286 H 287 A]


judgement:
Appeal No 320 of 1955.
Appeal by special leave from the judgment and order dated October 19, 1954 of the Labour Appellate Tribunal of India at Bombay in Appeal No. 76 of 1954.
H. J. Umrigar, E. J. Muharir and Rameshwar Nath, for the appellant.
section W. Dhabe and R. A. Govind, for the respondent.
November 6.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
The Central Provinces Transport Services Ltd., Nagpur, was, at the material dates, a public limited company, and the respondent was employed as a mechanic therein.
In June 1950, goods belonging to the Company were stolen, 958 and suspicion fell on the respondent.
There was an enquiry into the matter, and that resulted in his dismissal on June 28, 1950, on the ground of gross negligence and misconduct.
He was then prosecuted on a charge of theft, but that ended in his acquittal on March 3, 1952.
Thereafter, be applied to the Company to be reinstated, and failing to get redress, filed on October 1, 1952, an application before the Labour Commissioner under section 16(2) of the Central Provinces and Berar Industrial Disputes Settlement Act XXIII of 1947, hereinafter referred to as the Act, for reinstatement and compensation.
The Company resisted the claim on the ground, inter alia, that as the applicant had been dismissed on June 28, 1950, he was not an employee on the date of the applica tion, that accordingly there was no "industrial dispute touching the dismissal of an employee" as required by section 16, sub sections
(1) and (2) of the Act, and that, in consequence, the proceedings under that section were incompetent.
The Assistant Labour Commissioner, before whom the matter came up for hearing, agreed with this contention, and dismissed the application.
The respondent preferred a revision against this order to the Provincial Industrial Court ,under a. 16(5) of the Act, and by its order dated February 5, 1954, that Court held that a dismissed employee was an employee as defined in section 2(10) of the Act, that a dispute by such an employee was an industrial dispute within section 2(12) of the Act,.
and that the application under section 16(2) of the Act was therefore maintainable.
In the result, the order of dismissal was set aside and the matter remanded for enquiry on the merits.
Against that order, the Company appealed to the Labour Appellate Tribunal, which by its order dated October 19, 1954, affirmed the decision of the Provincial Industrial Court, and dismissed the appeal.
The Company has preferred the present appeal against this order under article 136.
Pending the appeal to this Court, the Company went into liquidation and has been taken over by the State of Madhya Pradesh, and is now being run under the name of Central Provinces Transport Services (under 959 Government ownership), Nagpur.
On the application of the respondent, the record has been suitably amended.
The point for decision in this appeal is whether an application for reinstatement and compensation by a dismissed employee is maintainable under section 16 of the Act.
That section, so far as is material to the Present question, runs as follows: "(1) Where the State Government by notification so directs, the Labour Commissioner shall have power to decide an industrial dispute touching the dismissal, discharge, removal or suspension of an employee working in any industry in general or in any local area as may be specified in the notification. "(2) Any employee, working in an industry to which the notification under sub section (1) applied may within six months from the date of such dismissal, discharge, removal or suspension, apply to the Labour Commissioner for reinstatement and payment of compensation for loss of wages".
The argument of Mr. Umrigar for the Appellant is that it is a condition prerequisite to the entertainment of an application for reinstatement under this section that there should be an industrial dispute touching the dismissal of an employee, that there was none such in this case, because the respondent was not an employee on the date of the application, having been dismissed long prior thereto and further because his dispute was an individual and not an industrial dispute.
It will be convenient at this stage to refer to the relevant provisions of the Act, as they stood on the material dates.
Section 2(10) defines an employee as follows: "employee" means any person employed by an employer to do any skilled or unskilled manual or clerical work for contract or hire or reward in any industry and includes an employee discharged on account of any dispute relating to a change in respect of which a notice is given under section 31 or 32 whether before or after the discharge".
Section 2(12) defines "industrial dispute" as meaning 960 "any dispute or difference connected with an industrial matter arising between employer and employee or between employers or employees".
Under section 2(13), "industrial matter" means "any matter relating to work, pay, wages, reward, hours, privileges, rights or duties of employers or employees, or the mode, terms and conditions of employment or refusal to employ and includes questions pertaining to (a) the relationship between employer and employee, or to the dismissal or non employment of any person. ') It is not disputed that a question of reinstatement is an industrial matter as defined in section 2(13) of the Act.
The controversy relates to the question whether it is an industrial dispute as defined in section 2(12) of the Act ' The contention of the appellant is that it does not fall within that definition., because the further condition prescribed by section 2(12) that it must be between an employer and employee is not satisfied.
It was argued by Mr. Umrigar that when the respondent was dismissed on June 28, 1950, his employment came to an end, and that he could not thereafter be termed an employee, as that word is ordinarily understood, that it could not have been the intention of the legislature to include in the definition of an employee even those who had ceased to be in service.
, as otherwise there was no need for the further provision in section 2(10) that discharged employees would in certain cases be employees; and that, in any event, the inclusive portion of the definition would, on the principle Expressio unius est exclusive alterius, operate to exclude all exemployees, other than those mentioned therein.
The question whether a dismissed employee is an employee as defined in section 2(10) of the Act must be held to be practically concluded by the decision of the Federal Court in Western India Automobile Association vs Industrial Tribunal, Bombay(1).
There, the point for determination was whether a claim for reinstatement by a dismissed workman was an industrial dispute as defined in section 2(k) of the XIV of 1947.
It was held that the definition in section 2(k) including as it did, all disputes or (1) 961 differences in connection with employment or non employment of a person was sufficiently wide to include a claim for reinstatement by a dismissed workman.
Counsel for the appellant sought to distinguish that decision on the ground firstly, that it was given on a. statute different from what we are concerned with in this appeal, and secondly, that the reference there, included other items of dispute, which un doubtedly fell within the Act, and the question of reinstatement took its complexion from those items.
We do not see any force in.
either of these contentions.
Section 2(12) and section 2(13) of the Act are substantially in pari materia with section 2(k) of Act XIV of 1947, and the ratio of the decision in Western India Automobile Association vs Industrial Tribunal, Bombay (supra) will be as much applicable to the one enactment as to the other.
, Nor does it make any difference that there were comprised in the reference other items which fell within the definition under section 2(k), because if the Government had no jurisdiction under the Act to refer the question of reinstatement of dismissed employee for adjudication, ' then the to that extent, be treated as a nullity,reference must, and it would be immaterial that it was intravires as regards the other items of dispute.
We are also unable to accede to the contention of the appellant that the inclusive clause in section 2(10) of the Act, is an indication that the legislature did not intend to include within that definition those who had ceased to be in service.
In our opinion, that clause Was inserted ex abuNdanti cautela to repel a possible contention that employees discharged under sections 31 and 32 of the Act would not fall within section 2 (10), and cannot be read as importing an intention generally to exclude dismissed employees from that definition.
On the other hand, section 16 of the Act expressly provides for relief being granted to dismissed em ployees by way of 'reinstatement and compensation, and that provision must become useless and inoperative, if we are to adopt the construction which the appellant seeks to put on the definition of employee in section 2(10).
We must accordingly bold agreeing with 125 962 the decision in Western India Automobile Association V. Industrial Tribunal, Bombay (supra) that the definition of "employee" in the Act would include one who has been dismissed and the respondent cannot be denied relief only by reason of the fact that he was iiot in employment on the date of the application.
It was next contended that even assuming that the respondent was an "employee" as defined in section 2 (10) of the Act, his dimissal could not be held to be an industrial dispute as defined in section 2(12), because that term properly meant that the dispute was one between employer on the one hand and the industry represented by its workmen as a class on the other, and that a dispute between the employer and a single employee would be an individual dispute and would therefore be outside the purview of a. 2(12).
It was argued in support of this contention that the object of all tabour legislation was not so much to deal with individual rights of workmen, for the enforcement of which there was an appropriate forum in the ordinary courts of the land as to regulate the relation between capital and labour, treating them as distinct entities, so that public peace and order might not be disturbed and production might not suffer, and for that end, to recognise the right of labour to speak and act as a body for the protection of its common interests and to provide a machinery for speedy settlement of disputes which that body might raise; and that it could not have been the intention of the legislature, where the above considerations did not operate, to interfere with the normal relations between employer and employee under the law and to provide an additional forum to the employee to vindicate his rights.
Reliance was placed in support of this contention on decisions of the Madras, Calcutta and Patna High Courts and of Industrial Tribunals.
The question whether a dispute by an individual workman would be an industrial dispute as defined i section 2(k) of the Act XIV of 1947, has evoked considerable conflict of opinion both in the High Courts and in Industrial Tribunals, and three different views have been expressed thereon: (I) A dispute which concerns 963 only the rights of individual workers, cannot be held to be an industrial dispute.
That was the opinion expressed in Kandan Textiles vs Industrial Tribunal(1).
There, Rajamannar C. J. observed that though the language of the definition in section 2(k) was wide enough to include such a dispute, the provisions of section 18 suggested that something more than an individual dispute between a worker and the employer was meant by an industrial dispute.
The other learned Judge, Mack J., was more emphatic in his opinion, and observed that the Act was "never intended to provide a machinery for redress by a dismissed workman".
It became, however, unnecessary to decide the point, as the court came to the conclusion that the reference it self was bad for the reason that there was no material on which the Government could be satisfied that there was a dispute.
The views expressed in Kandan Textiles vs Industrial Tribunal (supra) were approved in Manager, United Commercial Bank Ltd. V. Commissioner of Labour(2); but here again, the observations were obiter, as the point for decision was whether a right of appeal conferred by section 41 of the Madras Shops and Establishments Act XXXVI of 1947 was taken away by implication by Act XIV of 1947.
The question, however, arose directly for decision in J. Chowdhury vs M. C. Banerjee(3), in which the order of the Government referring the dispute of a dismissed employee to the adjudication of a Tribunal was attacked as incompetent, and it was held by Mitter J., following the observations in Kandan Textiles V. Industrial Tribunal (supra) that the dispute in question was not an industrial dispute, and that the reference was, in consequence, bad.
(11)A dispute between an employer and a single employee can be an industrial dispute as defined in section 2(k).
That was the decision in Newspapers Ltd., Allahabad vs State Industrial Tribunal, U.P. (i).
In that case a reference of a dispute by a dismissed employee and the award of the Tribunal passed on that refer (1) A.I.R. (2) A.I.R. 1951 Mad. 141.
(8) (4) A.I.R. 1954 All.
516, 964 ence were attacked as bad on the ground that the dispute in question was not an industrial dispute within section 2(k) of Act XIV of 1947, and it was held by Bhargava J., that an industrial dispute could come into existence even if the parties thereto were only the employer and a single employee and that the reference and the award were, in consequence, valid.
A similar decision was given by a Full Bench of the Labour Appellate Tribunal in Swadeshi Cotton Mills Company Ltd. vs Their Workmen(1).
(III) A dispute between an employer and a single employee cannot per se be an industrial dispute, but it may become one if it is taken up by the Union or a number of workmen.
That was held by Bose J., in Bilash Chandra Mitra vs Balmer Lawrie & Co.(2), by Ramaswami and Sarjoo Prosad JJ., in New India Assurance Co. vs Central Government Industrial Tribunal(3) and by Balakrishna Ayyar J., in Lakshmi, Talkies, Madras vs Munuswami and others(4) and by the Industrial Tribunals in Gordon Woodroffe & Co. (Madras).
Ltd. vs Appa Rao(5) and Lynus & Co. vs Hemanta Kumar Samanta(6).
The preponderance of judicial opinion is clearly in favour of the last of the three views stated above, and there is considerable reason behind it.
Notwithstanding that the language of section 2(k) is wide enough to cover a dispute between an employer and a single employee, the scheme of the does appear to contemplate that the machinery provided therein should be set in motion, to settle only disputes which involve the rights of workmen as a class and that a dispute touching the individual rights of a workman was not intended to be the subject of an adjudication under the Act, when the same bad not been taken up by the Union or a number of workmen.
If that were the correct position, the respondent was not entitled to apply under section 16(2) of the Act as the workmen in the industry had not adopted his dispute as their own and chosen to treat it as (1) (3) A.I.R. 1953 Patna 321.
(5) (2) A.I.R. 1953 Cal. 613.
(4) (6) 965 their ' casus belli with the Company.
But then, we are directly concerned in this appeal not with the XIV of 1947 but with the Central Provinces and Berar Industrial Disputes Settlement Act XXIII of 1947, and in the view which we take of the rights of the respondent under that statute, there is no Deed to express a final opinion on the question whether a dispute simpliciter between an employer and a workman would be an industrial dispute within 9. 2(k) of Act XIV of 1947.
Now, the Central Provinces and Berar Industrial Disputes Settlement Act XXIII of 1947 with which we are concerned, is not in pari materia with Act XIV of 1947.
It no doubt covers the ground occupied by that Act, and contains provisions relating to arbitration, adjudication, awards, strikes and lock outs.
But it contains more.
It enacts in Ch.
IV provisions which are intended to regulate the contract of employment between employer and workmen, a subject which is covered by a distinct piece of Central legislation, Industrial Employment (Standing Orders) Act XX of 1946.
The object of that Act was, as appears from the preamble thereto, "to require employers in industrial establishments formally to define conditions of employment under them", whereas the object of the XIV of 1947 is, as set out in its preamble, "to make provision for the investigation and settlement of industrial disputes and for certain other purposes".
Thus, even though the two enactments are pieces of what is termed labour legislation, their objects and their vision are different.
While Act XIV of 1947 may be said to be primarily concerned with disputes of labour as a class Act XX of 1946 is directed to getting the rights of an employee under a contract defined.
Now, as the Central Provinces and Berar Industrial Disputes Settlement Act XXIII of 1947 covers the ground occupied by both Act XX of 1946 and Act XIV of 1947, it would be proper to interpret the expression "industrial dispute" therein in a sense wider than what it bears in Act XIV of 1947, so as to cover not only disputes of workmen as a class but also their individual disputes.
966 And this view receives considerable support from other provisions of the Act.
Section Al enacts that an ap plication under that section can be made either by an employer or employee concerned or by a representative of the employees concerned.
Section 2(24) defines "representative of employees" as meaning a union or where there is no union, persons elected by the employees not exceeding five.
Thus, there is a clear recognition of the rights of an individual employee as distinguished from a class of employees, to move for redress.
It is argued by Mr. Umrigar that this re cognition is only for the purpose of section 41 and that no inference can be drawn therefrom that the employee has a similar right to apply under section 16(2).
But the importance of section 41 consists in this that it indicates that the Act has in contemplation the enforcement of individual rights of workmen also.
Then we have section 53, which runs as follows: "Save with the permission of the authority holding any proceeding under this Act, no employee shall be allowed to appear in such proceeding except through the representative of employees: Provided that where only a single employee is concerned he may appear personally".
, This section again recognises the rights of employees to agitate their individual rights under the provisions of the Act.
Section 16 is intended, in our opinion, to enable an employee to enforce his individual rights when there is an order of dismissal, discharge, removal or suspension, and in the context, "industrial dispute" must be interpreted as including the claim of an employee who has been dismissed, for reinstatement and compensation.
The view taken by the Industrial Court and the Labour Appellate Tribunal as to the meaning of "industrial dispute" in the Central Provinces and Berar Industrial Disputes Settlement Apt XXIII of 1947" is therefore correct, and this appeal must be dismissed with costs.
Appeal dismissed.
APPENDIX Reference to the memory of late Dr. Bijan Kumar Mukherjea, Ex Chief Justice of India, by the Judges and members of the Bar of the Supreme Court of India assembled at a meeting on February 23, 1956.
section R. DAS, C.J. Mr.
Attorney General we have met here today under the shadow of death to mourn the passing away of one who only the other day was our Chief Justice and beloved leader.
He had been ailing for some time but we did not anticipate that his end was so near.
Therefore, when the melancholy news came suddenly over the wires, my colleagues and I felt a severe shook as all of you must also have done.
We have assembled here today to pay our respectful homage to the memory of our departed leader.
Bijan Kumar Mukherjea was born on August 15 ' 1891.
His father late R. D. Mukherjea was a Sanskrit ' scholar.
He was a Vakil of the Calcutta High Court but used to practice at Hooghly.
Mukherjea had his early education at Hooghly and thereafter at Calcutta.
He obtained his Master 's Degree in History.
In B.L. and M.L. examinations he topped the list of successful candidates and secured University gold medals.
He was Ananth Deb Research Prizeman.
Bijan Kumar Mukherjea was enrolled as a Vakil o the Calcutta High Court on the Appellate Side on January 9, 1914.
Shortly thereafter Sir Ashutosh Mookerjee, who had an eye for discovering talents, offered him a lectureship in the University Law College.
This was a great help to the struggling junior and indeed, changed the whole course of his life and career, for the stipend, meager as it was, enabled him to struggle at the Bar of the Calcutta High Court instead of moving to Patna where a new High Court had recently been set up.
His rise at the Bar was not meteoric but was a steady one.
He passed through the hard trial but momentary disappointments or set backs did not dim his enthusiasm or dishearten him.
While practising at the Bar, he 126 968 secured his Doctorate in Law.
His academic distinctions and studious habit stood him in good stead.
His scholarly erudition, good grounding in legal principles and deep insight into human nature soon brought him to the forefront of the profession.
To his legal learning and forensic skill was added a graceful style of advocacy ,Which was entirely his own.
His merit was soon recognised and in or about 1934 he was appointed the junior Government Pleader and within two years the senior Government Pleader.
True to tradition he was elevated to the High Court Bench in 1936 Distinguished as an Advocate he became greater as a Judge.
His sweet temper and amiable disposition endeared him to his colleagues as well as to the members of the Bar and particularly to the junior members.
I am happy to bear testimony to his kindness, courtesy and consideration for his colleagues for I had the privilege of sitting with him on the Bench of the Calcutta High Court.
In 1947 he served on the Boundary Commission.
In 1948 Bijan Kumar Mukherjea along with Shri Mehr Chand Mahajan, who happily is with us, was called upon to serve as a Judge of the Federal Court.
He readily responded to the call of duty and came all the way to New Delhi leaving at Calcutta his only son to whom he had been both a father and a mother.
In the midst of his work on the Bench, he could find time to prepare and deliver his Tagore Law Lectures on the Hindu Law of Endowments.
On the retirement of Shri Mahajan on December 23, 1954, Mukherjen, became the the fourth Chief Justice of this Court.
He brought with him here his profound legal scholarship, a clear thinking and rational mind and a burning sense of justice.
The Law Reports will bear testimony to his sound erudition, and his masterly grasp of the fundamental principles which lie at the root of our legal system.
His judgments had a freshness and a compactness and were not mere collections of precedents.
He delved deep into the foundations of the law and analysed the underlying principles with clarity and precision.
By his judgments he made 969 priceless contributions to our legal literature.
As a Judge he shed lustre on the High Court at Calcutta as well as on this Court.
His energy was not confined to law only.
He was closely associated with the Scout movement in Bengal.
He was a profound Sanskrit scholar and earned the degree of Saraswati.
Perhaps he imbibed his Sanskrit scholarship from his revered father.
He became President of the Bengal Sanskrit Association.
He was also a Fellow of the Calcutta University.
He was also a good student of philosophy.
He had sensitive and fine literary tastes and he could recite from memory long passages from Tagore 's works as well as from the works of Sanskrit and English poets.
He was an essentially religious main with a scrupulously chaste character.
He was pure in thought, word and deed.
Mukherjea was loved and respected because of his deep human sympathy, piety and the nobility of his character.
He drew people towards him and radiated a serenity on all who came into contact with him.
I have heard more than one person say that on returning home after a visit to Mukherjea he felt that he had returned as a better man.
He was ailing and undergoing suffering and pain and death must have brought relief and deliverance to him.
But by his premature retirement and death our Court and country have lost an illustrious Chief Justice, an erudite scholar, a sound jurist and above all, a great gentleman and we, who had the privilege of working with him and sharing our joys and sorrows with him, have lost a brilliant colleague, a respected leader and a lovable friend.
We mourn his death as a personal loss and we pay our respectful homage and sincere tribute of appreciation and affection to the memory of the great departed soul.
May his soul rest in eternal peace.
We also offer our sincere sympathies to his son who is an Advocate of this Court.
M. C. Setalvad, Attorney General of India.
My Lords, The Bar respectfully associates itself with all that has fallen from my Lord the Chief Justice.
970 His ill health followed by his painful illness which led to his premature retirement made us all feel that he would not be with us for long.
Yet when the news of the end came, so endearing was his personality and so great his kindness to everyone who came it contact with him, that all of us were deeply touched.
Rarely has one the privilege of appearing before a Judge with such a deep knowledge of fundamental principles in all branches of the law and an unfailing and quick grasp of legal issues.
Whether it was a question relating to Hindu Religious Endowments, a subject in which he had made extensive research, or a constitutional question or a question of the law of contract his piercing intellect and analytical mind immediately perceived the points that arose, the Counsel had to be prepared to deal with a series of searching questions on all the legal aspects which arose.
His erudition in law is writ large in the numerous judgments delivered by him scattered over the reports of this Court during the last six years.
His masterly exposition of the doctrine of equality before the law in Cheranjitlal 's case and his analysis of the law of frustration of contract with a view to show that in India it had its roots not in the theory of a term implied by the parties but in a positive statutory provision, are landmarks in the development of our law of the Constitution and our law of contract.
Truly did Justice Douglas of the United States speak in his recently delivered Tagore ' Law Lectures of the march of.
legal doctrine from Marshall to Mukherjea.
Nor were his interests confined to the sphere of law.
He was a keen student of philosophy and literature, had a profound knowledge of Sanskrit and was deeply interested in all literary and cultural problems.
He had a prodigious memory and even a few minutes with him gave one glimpses of many an interesting event in the history and politics of Bengal.
Great as a Judge and a learned scholar, he was, I think, even greater as a man.
Simple and unassuming, gentle and kind, frank and outspoken, he won the affection of all who.
came to know him.
A few months 971 ago, a member of the Bar was brought before a Bench over which he presided to answer a charge of misconduct which he admitted.
Considering the question of punishment, the late Chief Justice asked Counsel assisting the Court whether it would be just to punish the Advocate with a year 's suspension when he had a family dependent on his professional earnings.
That was a question truly characteristic of him and showed his kindly heart.
We at the Bar voice our deep grief at the sad demise of a great and distinguished Chief Justice and extend our warm sympathies to his bereaved family.

summary/full:
In June, 1950, goods belonging to the appellant company were stolen and as the result of an enquiry the respondent was dismissed on the ground of gross negligence and misconduct.
He was prosecuted on a charge of theft but was acquitted in March, 1952, and thereupon he made an application before the Labour Commissioner 957 for reinstatement and compensation under section 16(2) of the Central Provinces and Barar Industrial Disputes Settlement Act, 1947.
It was contended for the appellant that the application was not main tainable because (1) the respondent was not an employee on the date of the application, having been dismissed long prior thereto and (2) his dispute was an individual and not an industrial dispute Held, (1) that the definition of "employee" in section 2(10) of the Act includes one who has been dismissed and has ceased to be in service, and that the inclusive clause therein was inserted ex abundanti cautela to repel a possible contention that employees discharged under sections 31 and 32 of the Act would not fall with Ins. 2(10) and cannot be read as importing an intention generally to exclude dismissed employees from that definition.
Western India Automobile Association vs Industrial Tribunal Bombay ([1949] F.C.R. 321), relied on.
(2) that a dispute between an employer and an employee who has been dismissed and who makes a claim for reinstatement and compensation, would be an industrial dispute within the meaning of section 2(12) of the Act, and section 16 enables the employee to enforce his individual rights against an order of dismissal, discharge, removal or suspension.
Quaere, whether a dispute simpliciter between an employer and a workman would be an industrial dispute within section 2(k) of the (XIV of 1947).