Appeal No. 1951 of 1975.

Appeal by Special Leave from the Award of the Industrial Tribunal, Gujarat in Reference (II) No. 30 of 1974, pub lished in the Gujarat Govt.

Gazette dated 23 10 1975 and Civil Appeal No. 631 of 1976 Appeal by Special leave from the Award of the Industrial Tribunal, Gujarat in Ref.

(II) No. 158 of 1974 published in the Gujarat Govt.

Gazette Part I L dated 15 4 76.

V.B. Patel, 1.

N. Shroff and H.S. Parihar for the appel lants (In CA 1951/75).

S.T. Desai, A. P. Hathi, Mrs. section Bhandare, M. section Narasimhan K.C. Sharma, A. K. Sharma and A. K. Mathur for the appellants in C.A. 631/76.

V.M. Tarkunde, K.L. Hathi and P.C. Kapur for the Re spondent in C.A. 1951/75 and Res.

1(1) C.A. 631/76.

S.S. Khanduja, S.K. Jain and Mrs. Laxmi Arvid for Re spondent Nos.

1(2) In C.A. 631/76.

The Judgment of the Court was delivered by SHINGHAL, J.

These two are companion appeals by special leave.

They have been heard together at the in stance.

of the learned counsel for the parties, and will be disposed by a common judgment.

Appeal No. 1951 of 1975 is directed against the award of the Industrial Tribunal Gujarat, dated September 24, 1975, in the dispute between the Alembic Glass Industries Ltd., Baroda, and its workmen, while appeal No. 631 of 1976 arises out of the Tribunal 's award in the dispute between Jyoti Limited, Baroda, and its workmen.

Speaking broadly, the dispute in both cases related to the workmen 's demand for 10 days sick leave, with retrospective effect, and ,its accumulation over a period of three years i.e. upto 30 days.

The workmen particularly felt aggrieved because by virtue of the first proviso to section 49 of the , hereinafter referred to as the Act, they were not entitled to the sickness benefit for the first two days of sickness except in the case of a, spell of sickness following, at an interval of not more than 15 days, the spell of sickness for which sickness benefit was last paid.

It was also a grievance that the benefit under the scheme of the Act was much less than the normal earnings of an employee and was not beneficial to the workmen.

The demand was resisted by the Companies in both cases.

In the case of the Alembic Glass Industries Ltd., it was contended that the Act provided more than adequate sickness benefits, and any additional 82 benefit would place unproductive financial burden on the industry and would have an all round adverse effect on other industries.

It was also urged that section 99 of the Act gave wide powers to the Employees ' State Insurance Corpora tion to enhance the benefit and it was therefore the proper authority to examine the demand.

The Company also contended that there was no practice of giving any such sick leave in the industries in Baroda or in the State of Gujarat.

In the case of Jyoti Ltd. an objection was taken that the reference was incompetent and the Tribunal had no jurisdiction to entertain it.

It was also pointed out that the benefit of sick.leave of 7 days per year was initially given to the workmen under an award dated August 29, 1958 which contained a specific direction that it would be automatically discon tinued when the benefits of the Employees ' State Insurance scheme would become available to the workmen, and also that the reasonableness of the demand could not be examined by the Tribunal.

An objection was also taken that the workmen had benefited a lot under the entire scheme of the Act and it would not be reasonable and proper to confer any addi tional benefit as the demands would place a heavy financial burden on the Company which it Could not bear.

The demand, according to the Company, would create an absurd position inasmuch as a worker would receive more wages by remaining absent than on duty.

The Company also pleaded that the demand for sickness leave could not be granted retrospec tively or allowed to accumulate.

While the reference in the case of Jyoti Ltd., Baroda, was still pending, the Tribunal gave its award dated Septem ber 24, 1975 in the case of the Alembic Glass Industries Ltd. The Tribunal, inter alia, awarded 7 days sick leave with full pay and dearness allowance to the workmen of that Company in a year, with the facility of accumulation upto 21 days.

It was stated before the Tribunal, on behalf of the workmen of Jyoti Ltd., that the arguments advanced and the contentions made in the case of the Alembic Glass industries may be considered as those made in their case also.

The reference in the case of Jyoti Ltd. proceeded accordingly and resulted in the award dated March 9, 1976 to which reference has been made above.

The award was on the lines of the earlier award in the case of the Alembic Glass Indus tries case, except .that the direction regarding 7 days sick leave was given retrospective effect from January 1, 1975.

The Company applied for and obtained special leave to appeal as aforesaid, with the further direction that the appeal may be heard along with the identical matter (in the Alembic Glass Industries case).

This is why these two have become companion appeals and are being disposed of together.

The controversy in these cases is whether the benefits admissible under the Act in the matter of the grant of sick leave are such as to justify the rejection of the workmen 's demand and the setting aside of the Tribunal 's awards in that respect.

It has been argued by the learned counsel for the appel lants that as the benefits of sections 47 and 49 of the Act are already admissible to workmen in Baroda with effect from December 14, 1969, and they are quite adequate, the Tribunal committed an error 83 of law in granting the additional benefits mentioned above.

Reference in this connection has been made to section 61 of the Act which provides that when a person is entitled to any of the benefits provided by the Act, he shall not be enti tled to receive any similar benefit admissible under the provisions of any other enactment.

The argument was raised in the Tribunal, but was rejected.

A similar question arose for consideration in The Hindustan Times Ltd., New Delhi vs Their Workmen(1) and was answered as follows by this Court, "Mr. Pathak has tried to convince us that in view of the provisions of the , no provision need be made about sickness leave at all.

That this Act has been applied, to the Company and that the workmen of the Company get the benefit of this Act is not disputed.

It is difficult to see however how the benefit that the workmen will get under this Act can affect the question of sickness leave being provided for the workmen.

This Act it has to be noticed does not provide for any leave to the workmen on the ground of sickness.

It provides in section 46(1)(a) for periodical treatment of any insured person in case of his sickness if certified by a duly appointed medical practitioner.

It is unnec essary to mention here the several provisions in the Act; viz., Sections 47, 48 and 49 which deal 'with the eligibility of workmen for sickness .benefit and the extent of the benefit that may be granted.

Section 56 of the Act pro vides for medical benefits to the insured workmen or in certain cases to the members of his family.

It appears to us clear however that in providing for periodical payments to an insured worker in case of sickness (sickness benefit) or for medical treatment or attendance to him or the members of his family, the legislature did not intend to substitute any of these benefits for the workmen 's right to get leave on full pay on the ground of sickness.

" The matter came up again for consideration by this Court in Technological Institute of Textiles vs Its Workmen and others(2) and it was held as follows with specific reference to the first proviso to section 49 of the Act according to which a person qualified to claim sickness benefit is not enti tled to it for the initial waiting period of two days except in the case of continuous illness of the nature mentioned therein, "With regard to sick leave, the argument on behalf of the appellant was that benefits were granted by the , but .that is not a bar to the demand of the workmen for sick leave.

The reason is that the first proviso to section 49 of the Employees ' State (1) [1964] 1 S.C.R. 234.

(2) [1965] 2 L L.3,149.

84 Insurance Act states that a person qualified to claim sickness benefit shall not be entitled to the benefit for an initial waiting period of two days except in the case of a spell of sickness following at an interval of not more than fifteen days, the spell of sickness for which benefit was last paid.

It is apparent that the Employees ' State Insurance Scheme does not cover all contingencies of sickness and in any event the first two waiting days are not covered.

In our opinion, the tribunal was, there fore, justified in its view that the workmen are entitled to 7 days ' sick leave with wages on pro duction of a medical certificate.

" It would thus appear that the Scheme of the benefits admissible under the Act cannot be said to cover the work men 's demand for sick leave to the extent allowed by the Tribunal.

Section 61 of the Act cannot thus be said to be applicable for the simple reason that the benefits granted by the Tribunal are not similar to those admissible under the Act.

The Act does not in fact deal with the question of sickness leave.

The other question regarding the adequacy of the sick ness benefit under the provisions of the Act has been exam ined by the Tribunal with reference to the reports of the National Commission of Labour, 1969, the Labour Laws Review Committee and the Norms Committee of Gujarat State, which go to show that the benefit cannot b.e said to be adequate for, it works out to about half the average wage of a workman, and even that amount is not admissible for the first two days of sickness except in the case of a spell of sickness following, at an interval of not more than 15 days, the spell of sickness for which the sickness benefit was last paid.

It has to be appreciated that a workman is prevented from earning the normal daily wages during the period of his illness and there is no justification for the argument that the rate of benefit at about half his wage, under the Act, should be considered sufficient so as to deny him the bene fit of sick leave on full emoluments for a period of 7 days when he is certified by a competent medical officer to be ill for that or a longer period.

Sickness is a serious misfortune to a workman for it not only prevents him from earning his normal wages, but is a drain on his meagre financial resources by way of additional expenditure on food, nursing and visits to the medical centre etc.

It has not been disputed before us that the "region cure industry" basis is suitable in cases like the present for examining any controversy regarding the work man 's demand for additional benefits, but it has been argued by the learned counsel for the appellants that the award of the benefit of sick leave to the workers of the two Compa nies could not be justified on that basis.

We find that the Tribunal has examined this aspect of the controversy also, and we have no reason to disagree with the view which it has taken.

As has been stated, the Act came into force in the region concerned on December 14, 1969, and it has not been disputed before us that till then it was the practice in the glass industries to grant sick leave with wages for periods varying from 6 to 10 days.

In fact in the 85 case of the Alembic Glass Industries Ltd., Baroda, the Tribunal made an award for 7 days sick leave on full pay and dearness allowance in 1958, subject to the condition that the benefit would cease to apply when the benefits of the Act became available to the workmen.

The benefit of sick leave was therefore lost when the Act was made applicable to the region from December 14, 1969.

That was obviously under a mistaken impression of the sickness benefit which the Act allowed for, as has been shown, it does not deal with all aspects of the demand for sickness benefit and does not, at any rate, provide for the grant of leave on full emoluments during the period of the workman 's physical incapacity to earn his normal wages because of his sickness.

It there fore appears that the Tribunal could not be said to have erred in restoring the benefit which the workmen were re ceiving under the award of 1958, for it was taken away under the mistaken impression that it had been adequately replaced by the new provisions on the coming into force of the Act.

The appellants have filed a statement (exhibit 7) containing information regarding the companies which have provided the benefit of sick leave to its workmen in the region.

It shows that even though the Act was applicable to the workers of the Precision Bearings India Ltd., Baroda, Hindustan Brown Bovari Ltd., Baroda, the Associated Cement Companies Ltd., and M.S. University Press, Baroda, the benefit of sick leave has been allowed to the workmen of.

those companies.

It is therefore .futile to contend that the benefit should not be admissible on the ground that it had not been allowed by other companies in the region.

We also find that such a benefit has been allowed in the case of glass industries by Shree Vallabha Glass Works Ltd., Vallabh Vidyanagar, Ogale Glass Works Ltd., Oglewadi and Vijay Glass Works, Bombay.

Even the Alembic Glass Industries Ltd. has allowed 6 days sick leave in a year to its employ ees in Bangalore and it is permissible to accumulate it upto 12 days in addition to the current year 's leave, under a settlement dated July 17, 1969, which is being continued even after the coming into force of the Act.

Learned coun sel for the appellants have invited our attention to the case between the Textile Labour Association and the Ahmeda bad Millowner 's Association where the demand for sick leave was refused but, as the Tribunal has pointed out, the demand there was for a month 's leave every year in addition to 15 days casual leave and pay in lieu of privilege leave.

The Full Bench of the Industrial Court in that case considered the paying capacity of the mills also, and held that the additional leave demanded by the workmen would be very much beyond the paying capacity of the industry.

As against this, the Tribunal has examined the financial capacity of the two companies in question, and has given adequate rea sons for holding that they are in good financial position and can bear the additional burden of sick leave.

Learned counsel for the appellants have in fact not advanced any argument to the contrary.

Mr. S.T. Desai has raised the argument, in the case of Jyoti Ltd., Baroda, that the Tribunal laboured under a misconception that 86 the sickness benefit would be lost for the first two days of sickness under the first proviso to section 49 of the Act, that the Tribunal should not, in any view of the matter, have given the benefit of 7 days sick leave, and that the workmen did not deserve anything more than sickness benefit for the first two days also.

According to him, what has been awarded by the Tribunal is additional privilege leave for 7 days in the garb of sick leave.

The argument is however futile because, as has been stated, the Tribunal has cor rectly examined the controversy and given adequate reasons for allowing the benefit of 7 days sick leave in the manner set out in the award.

Such a leave could not be categorised as privilege leave as, by its very nature, it would be admissible only in the case of actual sickness certified by a registered medical practitioner.

It would thus appear that the appellants have not been able to show that the awards in question are illegal or unjust; or would adversely affect the economy or the indus trial peace, or lead to imbalance in the conditions of service in other industrial establishments.

It appears, however, that it was not necessary, in the circumstances of the case, to award the benefit of the sick leave with retro spective effect from January 1, 1975, in the case of Jyoti Ltd. Baroda.

The appeals therefore fail and are dismissed except that the award in the case of Jyoti Ltd., Baroda, is made effective from the date of its commencement.

The appellant companies shall pay to the workmen ' the costs of these appeals; one set of counsel 's fees.

P.B.R. Appeals dismissed.

Summary: The workmen 's demand for grant of sick leave and its accumulation upto a period was rejected by the employers on the ground that the provided more than adequate sickness benefits, and that any additional benefits would place a financial burden on the industry and would adversely affect other industries in the region.

Summary: The Tribunal, to which the dispute was referred, partly granted the workmen 's demand.

Summary: On appeal to this Court it was contended that section 61 of the debarred a person enti tled to any of the benefits under that Act from receiving similar benefit under the provisions of any other Act and as such the workmen were not entitled to the benefit of sick leave.

Summary: Dismissing the appeals, HELD: (1) The , does not deal with the question of sick leave.

Summary: The scheme of the benefits admissible under the Act does not cover the work men 's demand for sick leave to the extent allowed by the Tribunal.

Summary: Section 61 is not applicable because the benefits granted by the Tribunal are not similar to those admissible under the Act.

Summary: [84 C] The Hindustan Times Ltd., New Delhi vs Their Workmen [1964] 1 SCR 234 and Technological Institute of Textiles vs Its Workmen and others applied.

Summary: (2) Sickness benefit under the Act cannot be said to be adequate, for, it works out to about half the average wage of a workman which benefit is not admissible for the first two days of sickness except under the conditions provided in the Act.

Summary: A workman is prevented from earning the normal daily wages during the period of his illness and there is no justification for the argument that the rate of benefit at about half his wage, under the Act, should be considered sufficient so as to deny him the benefit of sick leave on full emoluments for a period of 7 days when he is certi fied by a competent medical officer to be ill for that or a longer period.

Summary: Sickness is a serious misfortune to a work man for it not only prevents him from earning his normal wages, but is a drain on his meagre financial resources by way of additional expenditure on food, nursing and visits to the medical centre etc.

Summary: [84 E F] (3) The Tribunal could not be said to have erred in restoring the benefit which the workmen were receiving under an earlier award.

Summary: The benefit of sick leave to the employ ees in the region was lost when the Act was made applicable to the region from December 14, 1969.

Summary: This was obviously under a mistaken impression.

Summary: The Act does not deal with all aspects of sickness benefit and does not provide for the grant of leave on full emoluments during the period of a workman 's physical incapacity to earn his normal wages because of his sickness.

Summary: [85 B C] (4) There is no force in the argument that the Tribunal had granted additional privilege leave for 7 days under the garb of sick leave because by its very nature sick leave would be admissible only in the case of actual sickness certified by a registered medical practitioner.

Summary: [86 B] (5) There is no evidence to show that the benefit had not been allowed by other companies in the region.

Summary: The Tribunal had examined the financial 81 capacity of the companies and had given adequate reasons for holding that they were in good financial position and could bear the additional burden.

Summary: [85 H] (6) It has not been shown that the awards are illegal or unjust, or would adversely affect the economy or the indus trial peace, or lead to imbalance in the conditions of service in other industrial establishments.

Summary: [86 C]


ON: Criminal Appeal No. 126 of 1955.

Appeal by special leave from the judgment and order dated the 9th August 1955 of the Bombay High Court in Criminal Application No. 726 of 1955.

M. R. Parpia, J. B. Dadachanji and section N. Andley, for the appellant.

M. C. Setalvad, Attorney General for India, B. Sen and R. H. Dhebar, for the respondent.

April 24.

The Judgment of the Court was delivered by JAGANNADHADAS J.

This is an appeal by special leave against the judgment of the High Court of Bombay dismissing an application made to it under article 226 of the Constitution.

These proceedings relate to the validity of an order of detention passed by the Government of Bombay on the 8th June, 1955, against the appellant before us, who is an Advocate of the High Court of Bombay having a standing of about thirty years.

He was in the Indian Air Force as an emergency Commissioned Officer between 1943 to 1948 and thereafter on extension for another four years until he attained the age of 55.

It appears that he was also interested in journalism and in public affairs.

On his own showing, he was concerned over the political future of Goa and "was opposed to any attempts at intimidation of Indian residents of Goan origin by other political groups and has freely expressed these views in his journalistic articles".

He was arrested on the 9th June, 1955, and is in detention since then under the impugned order, which runs as follows: 384 "No. P. D. A. 1555A. Political and Services Department, Secretariat, Bombay, 8th June, 1955.

O R D E R.

Whereas the Government of Bombay is satisfied with respect to the person known as Shri Lawrence Joachim Joseph DeSouza of Bombay, that with a view to preventing him from acting in any manner prejudicial to the relations of India with the Portuguese Government and to the Security of India, it is necessary to make the following Order: Now, therefore, in exercise of the powers conferred by sub clause (1) of clause (a) of sub section (1) of section 3 of the (Act IV of 1950) the Government of Bombay is pleased to direct that Shri Lawrence Joachim Joseph DeSouza of Bombay, be detained.

By Order and in the name of the Governor of Bombay.

Under Secretary to the Government of Bombay.

Political and Services Department".

In pursuance of section 7 of the (Act IV of 1950) (hereinafter referred to as the Act) the grounds of detention, also dated the 8th June, 1955, was served on him along with the order of detention.

The validity of the order is challenged on the following contentions.

1.The order of detention was mala fide.

It was passed for the ulterior purpose of preventing his freedom of speech and freedom of professional activity in the sphere of Goan affairs by reason of his known views in this behalf.

2.The detaining authority,in exercising its power, failed to apply its mind to the existence or otherwise of the legitimate objects of detention.

The grounds of detention are vague.

385 4.The claim of State that no particulars of the grounds could be furnished in public interest is unsustainable and in any case mala fide.

The last two have been urged before us not only as independent points but as reinforcing the first two.

The challenge to the validity of the order based on the attack of mala fides and non application of the, mind of the detaining authority, have been urged before us with great insistence.

We have been taken elaborately into what is claimed to be the relevant previous background of events.

This part of the argument raises, what ultimately are questions of fact which have been fully considered by the High Court.

It is, therefore, enough to state, in its broad outlines, the background, which is alleged as follows: (1)(a) There was a sudden search by the police on the 24th August, 1954, at the appellant 's place for alleged possession of illicit liquor.which, in fact, was not found.

But under the guise thereof the police seized and carried away a mass of documents, papers and printed material of the appellant as also a typewriter belonging to him.

(b)On the same day, a search was carried out by the police also at his residence at Mahim but nothing was found.

(c)Immediately following the searches, the appellant was taken into illegal police custody and interrogated, and physically assaulted, and threatened.

The above high handed action of the police, by way of search and seizure, was the subject matter of challenge by the appellant by means of a writ application in the High Court in which the police officers concerned filed affidavits virtually admitting the appellant 's allegations relating to seizure of papers, etc.

The State itself could not support the said highhandedness.

As a result, the High Court directed on the 3rd November, 1954, the return forthwith of all the papers and articles seized.

Notwithstanding that order, the materials so illegally seized were returned only on or about the 21st January, 1955.

(2) When one Joaquim Carlos, a Portuguese soldier 386 attached to Goan forces, was arrested on a charge of entering Indian territory without the requisite authority, the appellant rendered professional assistance to him and obtained an order of release on bail from the Chief Presidency Magistrate, Bombay, which was foiled by the police by removing him away to Sawantwadi before the requisite sureties could be obtained at Bombay.

The trial was hurried through and the said Carlos was convicted.

But on appeal, filed by the appellant, before the Sessions Judge, the conviction was set aside and retrial ordered.

These events happened between February to April, 1955.

(3)Between April, 1955 to June, 1955, there occurred certain incidents which were inspired and instigated by the members of the Goan Action Committee who were agitating against Portuguese hold over Goa.

There was a raid on certain pro Portuguese presses by some private persons, in the course of which heavy damage was caused.

There was also an assault on himself (appellant) by a gang of persons of whom some were employees of the Goan Action Committee.

In respect of these two incidents private complaints had been filed by or on behalf of the affected persons.

The attitude and behaviour of the police in respect of these complaints were clearly indicative of their being in league with the Goan Action Committee.

The appellant 's counsel strongly urged that the bona fides of the detaining authority is to be judged with reference to the above background of events and that viewed in that light the vagueness of the grounds and the belated claim of privilege under article 22(6) of the Constitution strengthen his contention.

He also relied on what are urged as being certain discrepancies in the affidavits of the Under Secretary and the Chief Secretary filed in the High Court in these proceedings.

It is strongly urged that the order of detention was made without any real application of mind by the detaining authority, that the authority acted merely at the instance of the police who were in league with the Goan Action Committee, and that the police procured the detention 387 order for the purpose of suppressing the freedom of the appellant, to ventilate his point of view on the Goan politics and to take up professionally the cause of persons in the position of Carlos.

We have been taken through all the material relating to the above allegations and have given our consideration to the same.

It is enough to say that we are unable to see any reason for disagreeing with the conclusion of the High Court to the effect that the material is not enough to make out that the detaining authority was acting otherwise than bona fide.

We also agree with the view of the High Court that, what has got to be made out is not the want of bona fides on the part of the police, but want of bona fides, as well as the non application of mind, on the part of the detaining authority, viz. the Government, which for this purpose must be taken to be different from the police.

It is also clear that the allegation of non application of mind by the detaining authority is without any basis, in view of the affidavit of the Chief Secretary.

The further points that remain for consideration are those which relate to the complaint of vagueness of the grounds furnished and the alleged unsustainable claim for non disclosure under article 22(6) of the Constitution on behalf of the detaining authority, to get over the alleged vagueness.

To appreciate the points thus raised, it is necessary to have an idea of the grounds of detention as furnished.

They are to be found from the relevant communication to the detenue which is as follows: "In pursuance of section 7 of the (Act IV of 1950) you are hereby informed that the grounds on which a detention order has been made against you, by the Government of Bombay under sub clause (1) of clause (a) of subsection (1) of section 3 of the said Act are that: With the financial help given by the Portuguese authorities you are carrying on espionage on behalf of the Portuguese Government with the help of underground workers.

You are also collecting intelligence about the security arrangements on the border area and you make such intelligence available to the Portu 388 guese authorities.

These activities which are being carried on by you with the object of causing further deterioration in the relations between the Portuguese Government and the Indian Government over the question of Goan National Movement, are prejudicial to the security of India and to the relations of India with Portugal.

2.If you wish to make a representation against the order under which you are detained, you should address it to the Government of Bombay and forward it through the Superintendent, Arthur Road Prison, Bombay.

3.You are also informed that you have a right to claim a personal hearing before the Advisory Board and that you should communicate to Government of Bombay as soon as possible your intention of exercising or not exercising that right".

The objection by the appellant relating to this is contained in paragraph 15(g) of his application before the High Court.

It is as follows: "The grounds are not specific and no particulars of the activities alleged to have been carried on by the petitioner are given, viz. the particulars such as the length of period for which the petitioner is alleged to have carried on the so called espionage activities or the details of financial aid alleged to have been received by the petitioner from the Portuguese authorities or the names of any of the so called underground workers alleged to be aiding the petitioner or any details of intelligence alleged to have been collected by the petitioner or made available by him to the Portuguese Government".

The answer thereto of the Under Secretary to the Government of Bombay is in paragraph 12 of his affidavit dated the 25th July, 1955, and is as follows: "With reference to paragraph 15, clause (g), I submit that it is not necessary to mention particulars of the espionage activities carried on by the petitioner or the details of the financial aid received by him or the names of the persons aiding the said petitioner.

It is not in public interest to disclose these details; nor is it necessary to mention these matters to afford 389 the petitioner reasonable opportunity to make a representation" Now the question as to whether the grounds furnished are vague or not, is ultimately a question that has to be determined on a consideration of the circumstances of each case, as was pointed out by this court in the State of Bombay vs Atma Ram Sridhar Vaidya(1) in the following passage: "The contention that the grounds are vague requires some clarification. . . .

If the ground which is supplied is incapable of being understood or defined with sufficient certainty it can be called vague.

It is not possible to state affirmatively more on the question of what is vague.

It must vary according to the circumstances of each case. . . .

If on reading the ground furnished it is capable of being intelligently understood and is sufficiently definite to furnish materials to enable the detained person to make a representation against the order of detention it cannot be called vague".

In the present case, the detenue has been intimated why, in the opinion of the Government the activities of the appellant are considered prejudicial to the security of India and to the relations of India with Portugal.

They are the following: 1.With the financial help given by the Portuguese authorities, he is carrying on espionage on behalf of the Portuguese Government with the help of underground workers.

2.He is collecting intelligence about the security arrangements on the border area and making such intelligence available to the Portuguese authorities.

3.He is carrying on these activities with the object of causing further deterioration in the relations between the Portuguese Government and the Indian Government over the question of the Goan National Movement.

It is true that these allegations are not as precise and specific as might have been desired.

But having regard to the nature of the alleged activities of the appellant, it is not unlikely that no more could be gathered or furnished.

In this context it is relevant (1) ; ,184.

51 390 to notice that the appellant himself does not appear to have felt that the grounds furnished were so vague as to hamper him in his right to make a representation under article 22(5) and section 7 of the Act.

It does not appear that he applied to the Government to be supplied with particulars of the grounds furnished to him.

Such a right to call for particulars has been recognised in the case in the State of Bombay vs Atma Ram Sridhar Vaidya(1) as flowing from his constitutional right to be afforded a reasonable opportunity to make a representation to the Board.

In that case it has been stated that "if the grounds are not sufficient to enable the detenue to make a representation, the detenue. . if he likes, may ask for particulars which would enable him to make the representation".

The fact that be bad made no such application for particulars is, therefore, a circumstance which may well be taken into consideration, in deciding whether the grounds can be considered to be vague.

In the circumstances and having regard to thefact that what is alleged is espionage activity ata time when relations between the two Governments on the affairs of Goa were somewhat delicate, we are inclined to think, with the High Court, that the grounds cannot be considered to be vague.

Assuming however that the grounds furnished in this case are open to the challenge of vagueness, the further question which arises is whether the validity of the order of detention can be sustained by reason of the claim, in public interest, of non disclosure of facts made by the Under Secretary to the Government of Bombay by means of his affidavit filed in the High Court.

Now it has been held in Atma Ram Sridhar Vaidya 's case(1) by the majority of the Court, that the constitutional right of a detenue under article 22(5) comprises two distinct components.

1.The right to be furnished grounds of detention as soon as may be; and 2.The right to be afforded the earliest opportunity of making a representation against his detention (1) ; ,184. 391 which implies, the right to be furnished adequate particulars of the grounds of detention, to enable a proper representation being made.

These rights involve corresponding obligations on the part of the detaining authority.

It follows that the authority is under a constitutional obligation to furnish reasonably definite grounds, as well as adequate particulars then and there, or shortly thereafter.

But the right of the detenue to be furnished particulars, is subject to the limitation under article 22(6) whereby disclosure of facts considered to be against public interest cannot be required.

It is however to be observed that under article 22(6) the facts which cannot be required to be disclosed are those "which such authority considers to be against public interest to disclose".

Hence it follows that both the obligation to furnish particulars and the duty to consider whether the disclosure of any facts involved therein is against public interest, are vested in the detaining authority, not in any other.

It was accordingly attempted to be argued in the High Court that the claim of non disclosure made in the affidavit of the Under Secretary indicated a decision for nondisclosure, by the Under Secretary himself and that too at the time of filing the affidavit.

On this assumption it was contended that the claim for non disclosure was invalid.

The High Court, however, on a consideration of the material, felt satisfied that what was stated in the affidavit related to the decision of the detaining authority itself, taken at the time.

The learned Judges expressed their conclusion as follows: "There is nothing in the affidavit of Mr. Bambawala to suggest that it is now that the detaining authority is claiming privilege or applying its mind to the question of privilege. . . . .

The meaning is clear that at no time it was in public interest to disclose the details referred to in the particular paragraph of the affidavit and there is nothing to suggest that this question was not considered by the detaining authority at the time when the grounds were furnished".

No argument has been addressed to us how this con 392 elusion is incorrect.

But what has been urged before us is that the decision not to disclose the facts as well as the ambit of the non disclosure must be clearly communicated to the detenue at the time when the grounds are furnished.

It is urged that if the detenue is furnished information, at least to that extent, it will enable him to present to the Advisory Board his difficulties in making a proper representation and to convey to it a request for obtaining the requisite particulars from the State under section 10 of the Act for their own information and consideration.

We are unable to imply any such obligation under article 22(5) and (6).

The necessity for such a communication would arise only if the detenue, feeling the grounds to be vague, asks for particulars.

An obligation to communicate the decision not to disclose facts considered prejudicial to public interest may well be implied in such a situation.

But in the absence of any such request by the detenue, the non communication of the decision cannot be held to have hampered his constitutional right of representation and an obligation to communicate cannot be implied in these circumstances.

In the present case there is no merit in this contention.

If the appellant bad exercised his right to ask for particulars, at the time, from the detaining authority, there can be no doubt that he would have been furnished then the very information which has been supplied in paragraph 12 of the Under Secretary 's affidavit in answer to para 15(g) of the appellant 's petition, both of which have been already set out above.

A faint suggestion has been made in the course of the arguments before us that the decision not to disclose particulars is mala fide and that such mala fides has to be imputed in a case where no particulars are at all furnished.

It is suggested that the power not to disclose facts considered against public interest cannot be so exercised as to nullify the constitutional right of the detenue for being afforded a proper opportunity of representation.

Such a contention as to the mala fide exercise of the power is untenable in the present case having regard to the nature of the 393 grounds on which the detention is based and the nature of activities imputed therein to the appellant.

It is unnecessary, therefore, to deal in this case with a theoretical contention as to whether or not article 22(6) of the Constitution overrides the constitutional right to be furnished particulars under article 22(5) to the extent of denying all particulars and leaving the grounds absolutely vague.

All the contentions raised before us fail and this appeal is dismissed.

Summary: Appellant was detained under section 3(1)(a)(i) of the Preventive Detention Act, Act IV of 1950 on the grounds that with the financial help given by the Portuguese authorities he was carrying on espionage on their behalf with the help of underground workers and that he was also collecting intelligence about the security arrangements on the border area and was making such intelligence available to the Portuguese authorities.

Summary: Appellant made no application to the Government for further particulars.

Summary: Held, that in these circumstances and having regard to the fact that what is alleged is espionage activity, the grounds could not be considered to be vague.

Summary: In answer to the objection in the writ application before the High Court that the grounds were not specific and that no particular of the alleged activities of the appellant were given the Under Secretary to the Government in his affidavit claimed privilege under article 22(6) of the Constitution.

Summary: Held, that the right of the detenue to be furnished particulars is subject to the limitation under article 22(6).

Summary: Hence even if the grounds are vague due to the reason that facts cannot be disclosed in the public interest, the order of detention cannot be challenged on the ground of such vagueness.

Summary: The necessity of communicating the decision to claim privilege under article 22(6) would arise only when the detenue asks for parti 383 culars.

Summary: In the absence of any such request by the detenue, the noncommunication of the decision cannot be hold to have hampered his constitutional right to make his representation.

Summary: Mala fides must be made out against the detaining authority and not against the police.

Summary: The contention of mala fides is untenable in the present case having regard to the nature of the grounds and to the nature of the activities imputed to the appellant.


Appeal No. 1653 of 1967.

Appeal from the judgment and order dated February 23, 1967 Of the Delhi High Court in C.W. No. 403 D of 1959.

B. Sen, P. L. Juneja, R. N. Sachthey and section P. Nayer, for the appellant.

Sardar Bahadur and Yougindra Khushalani, for the respondent.

The Judgment of the Court was delivered by Sikri, C.J.

The judgment, reproduced below, was drafted by the late Mr. Justice Roy and we all had subscribed to it.

We beard the matter formally again on November 19, 1971.

We adopt the judgment as our own.

448 This is an appeal by the Union of India by way of special leave.

On April 9, 1959, the Central Government directed removal from service of Capt. section K. Rao under r. 14 of the Army Rules, 1954.

The facts leading to his removal are as follows : Rao was a commissioned officer in the Indian Army and was attached to the Army Ordnance Corps Training Centre, Secundrabad.

It was alleged that on April 4, 1958, he committed acts of .gross misconduct.

The allegations were as follows : "Knowing Kumari Prakash as the daughter of a brother Officer, Rao assisted her in going away from her parents protection and planning to run away with a sepoy. " "Rao, by threatening to cause harm to Kumari Prakash 's parents, intimidated her t o visit his house where he took her in his scooter to the unit lines of 51 1 1 Gurkha Rifles where he arranged her meeting with a sepoy of the unit." "He (i.e. Rao) acquiesced in the girl being met by the sepoy later at a tea shop nearby where she received a present of a sari and blouse from the sepoy in his presence." "Rao thus actively abetted in the attempt of brother officer 's daughter elope with a sepoy." "Rao then took Kumari Prakash to a hotel "Saidya Lodge ' in Hyderabad and got a room to themselves by impersonating and giving a false identity as "Mr. & Mrs. Prakash".

An inquiry into the matter was made by Court of Inquiry.

The Chief of the Army Staff, after going through the proceedings of the Court of Inquiry, considered that the conduct of Capt.

Rao was most unbecoming of an officer.

As he was of opinion that trial of the officer by a General Court Martial was inexpedient, he ordered administrative action to be taken under r. 14 of the Army Rules, 1954.

By memorandum dated September 4, 1958, Rao was called upon to submit his explanation by way of defence regarding the allegations against him.

The explanation of Rao was placed before the Central Government.

The Central Government found it to be unsatisfactory, and on April 9, 1959, an order was passed removing the respondent from service.

Rao thereupon filed a petition under article 226 of the Constitution for quashing the order of removal from service on the 449 ground, inter alia, that r. 14 of the Army Rules, 1954, was ultra vires the , and that the action taken thereunder was without any authority.

In the petition Rao gave a somewhat different version of what had happened.

According to him he did not assist Kumari Prakash to go away from her parents ' house.

At the hearing of the petition the only point which was urged was the validity of r. 14 of the Army Rules, 1954.

If this rule was intra vires the , Rao has no case.

The Army Rules, 1954, including r. 14, were framed in exer cise of the powers conferred by section 191 of the .

Rule 14 of the Army Rules, 1954, is as follows: "(1) When after considering the reports on an officer 's misconduct, the Central Gove rnment is satisfied or the C in C is of the opinion, that the trial of the officer by a court martial is inexpedient or impracticable but considers the further retention of the said officer in the service as undesirable, the C in C shall communicate the view of the Central Government or his views, as the case may be, to the officer together with all reports adverse to him and he shall be called upon to submit his explanation and defence.

(2) In the event of the explanation of the officer being considered unsatisfactory by the "C in C, or when so directed by the Central Government, the case shall be submitted to the Central Government with the officer 's defence and the recommendation of the C in C as to whether the officer should be, (a) dismissed from the service; or (b) removed from the service; or (c) called upon to retire; or (d) called upon to resign.

(3) The Central Government, after due consideration of the reports, the officer 's defence, if any, and the recommendation of the C in C, may dismiss or remove the officer with or without pension or call upon him to retire or resign, and on his refusing to do so, the officer may be retired from or gazetted out of the service on pension or gratuity, if any admissible to him." Under the aforesaid r. 14, action can be taken for misconduct against an officer whose further retention in service is not considered desirable.

without the officer being tried by a court martial.

450 Before removal he must, under the rule, be asked to submit his explanation and defence.

If the explanation is found to be unsatisfactory, the Central Government has been given the power to dismiss or remove the officer.

Rules are framed under section 191 of the .

Sub section (1) of section 191 gives power to the Central Government to make rules for the purpose of carrying into effect the provisions of the Act.

Sub section 2(a) provides : "Without prejudice to the generality of the power conferred by sub section (1), the rules made thereunder may provide for (a) the removal, retirement, release or discharge from the service of persons subject to this Act." Sections 18 & 19 which appear in Ch.

IV of the dealing with "Conditions of Service" provide as follows : S.18 "Every person subject to this Act shall hold office during the pleasure of the President.

" section 19 "Subject to the provisions of this Act and the rules and regulations made thereunder the Central Government may dismiss, or remove from the service, any person subject to this Act.

" Offenses under the have been dealt with in sections 34 to 70 in Ch.

VI, of which section 45 is as follows : section 45 "Any officer, junior commissioned officer or warrant officer who behaves in a manner unbecoming his position and the character expected of him shall, on conviction by court martial, if he is an officer, be liable to be cashiered or to suffer such less punishment as is in this Act mentioned; and, if he is a junior commissioned officer or a warrant officer, be liable to be dismissed or to suffer such less punishment as is in this Act mentioned," It was argued by counsel for the respondent Rao that the contained specific provisions for punishment for unbecoming conduct, viz. section 45.

To give power to the Central Government to remove an officer without being tried and convicted by court martial was in derogation of section 45 of the .

Rule 14, therefore, was ultra vires the .

This argument is not correct.

Section 19 itself suggests that there should be rules, and subject to the provisions of the Act and such rules, the Central Government may dismiss or remove from the service any person 451 subject to the .

Section 191 (2) (a) specifically gives.

It follows that there may be a valid rule where under, subject to the other provisions of the Act, the Central Government may remove a person from the service.

Rule 14 is such a rule : it is, therefore, not ultra vires.

It was argued that the words "subject to the provisions of this Act" occurring in section 19 makes section 19 subject to section 45, and the Central Government has thus no power to remove a person from the service in derogation of the provisions of section 45.

But the power under section 19 is an independent power.

Although section 19 uses the words "subject to the provisions of this Act", it speaks of removal of a person from the service.

Section 45 provides that on conviction by court martial an officer is liable to be cashiered or to suffer such less punishment as is in this Act mentioned.

For removal from service under section 19 of the read with r. 14 of the Army Rules, 1954, a court martial is not necessary.

The two sections 19 and 45 of the Act are, therefore, mutually exclusive.

The result is that r. 14 of the Army Rules, 1954, is not ultra vires the .

The appeal is, therefore, allowed; but in the circumstances of the case without any order as to costs.

The case will now go back to the High Court for disposal on merits on the other questions raised by the respondent herein in the High Court.

V.P.S. Appeal allowed.

Summary: The respondent, a commissioned officer in the Indian Army, was found to have committed acts of gross misconduct by a Court of Inquiry.

Summary: The Chief of the Army Staff was of the opinion that his trial by a General Court Martial was inexpedient, and the respondent was removed from service after following the procedure under r. 14 of the Army Rules, 1954.

Summary: On the question whether r. 14, which gives power to the Central Government to remove an officer without being tried and convicted by Court Martial was in derogation of section 45, , which specifically provides for conviction by court martial and punishment for unbecoming conduct, HELD : The rule is not ultra vires.

Summary: [451 D] (1) Section 19 of the Act provides that subject to the provisions of the Act and the rules made thereunder the Central Government may remove from service, any person subject to the Act.

Summary: Therefore, the section itself suggests that there should be rules regarding removal from service, and section 191 (2) (a) of the Act specifically gives power to make a rule providing for the removal from the service of persons subject to the Act.

Summary: [450 H; 451 A B] (2) Although section 19 uses the words "subject to the provisions of this Act", the section is not subject to section 45.

Summary: The power under section 19 is independent of the power under section 45, because, while section 19 speaks of removal of a person, section 45 provides that on conviction by Court Martial an officer is liable to be cashiered or to suffer such less punishment as is in the Act mentioned.

Summary: [451 B D]


Appeal No. 1375 of 1966.

Appeal from the judgment and order dated October 22, 1965 of the Bombay High Court Nagpur Bench in Special Civil Application No. 355 of 1964.

M. N. Phadke and Naunit Lal, for the appellant.

B. R. Agarwala and section B. Nerkar, for respondent No. 1.

A. K. Sen, A. section Bobde, G. L. Sanghi, and O. C. Mathur, for respondent No. 2.

M. section K. Sastri, R. N. Sachthey, section P. Nayar for R. H. Dhebar, for respondent No. 3.

The appellant had in this petition prayed for the issue of a writ quashing the resolution dated April 6, 1964, passed by the Standing Committee, Zila Parishad, Nagpur, and for a writ of mandamus directing the Standing Committee not to interfere with the right of the appellant to impose and collect the octroi duty pursuant to its resolution dated February 25, 1963.

In order to appreciate the points raised before us it is necessary to give the relevant facts and statutory provisions.

The Village Panchayat of Kanhan Pipri, hereinafter referred to as the Panchayat, was originally constituted under the C.P. & Berar Panchayat Act, 1946 (C.P. & Berar Act No. 1 of 1947).

On June 1, 1959, the Bombay Village Panchayat Act, 1958 (Bombay Act III of 1959) hereinafter referred to as the Act came into effect in Vidharba region, and by virtue of this Act the appellant was deemed to be a Panchayat under the Act.

On July 14, 1961, the Panchayat passed resolution No. 2 with a view to levy octroi duty.

The resolution, after reciting the need 215 for levying octroi duty and the relevant statutory provisions, concludes: ". . it passes the resolution to levy minimum octroi tax on the goods coming within its local limits as per the Schedule No. 1 of the Rules." On November 17, 1962, resolution No. 5 was passed which reads as follows: "5.

The meeting considered the question of imposition of octroi duty.

It has been unanimously resolved that by virtue of Grampanchayat Resolution No. 2, dated 14 7 61, that octroi duty shall be imposed on the goods coming into its local limits, the committee accepts the same.

The matter of levying octroi duty shall be undertaken in accordance with the Panchayat Act and its rules.

There fore matter of Octroi Rules, calling for objections for the tax and taking of decisions thereon after the consideration, number of the octroi posts and place etc.

should be got decided by the appropriate authority.

This matter may be taken into hand very urgently.

It is so decided, by the majority.

" On January 26, 1963, a public notice was issued under r. 3(b) of the Maharashtra Village Panchayats Taxes and Fees Rules, 1960 hereinafter referred to as the Fees Rules.

On February 19, 1963, M/s Brooke Bond of India (Pr.) Ltd. hereinafter referred to as the Company respondent before us, preferred objections against the proposed levy of octroi.

On February 25, 1963, resolution No.3 was passed.

After setting out the previous resolutions and the publication of the notice by beat of drum, and the various objections received, it concludes: "Having considered all these above objections and suggestions and having given a satisfactory explanation for the same, this Committee unanimously resolves that as per the above resolution octroi should be levied on all the goods coming into the limits of the Panchayat,as per schedule I item 1,and levy the minimum octroi as per the rules in Schedule I item 2.

This levy should come into fo rce from 1 4 1963 and its final publication be done on 1 3 1963 as per rules and by public notice and by announcement by beat of drums (through loudspeakers.)" On March 17, 1963, resolution No. 3 was passed fixing octroi limits and number of octroi nakas and their places.

On March 18, 1963, the Panchayat wrote to the Collector, Nagpur, seeking his approval to the octroi limits, number of octroi nakas and their places.

It appears that the Panchayat started collecting octroi from April 1, 1963.

On May 29, 1963, the Company filed an appeal 216 under section 124(5) of the Act before the Panchayat Samiti, Parseoni.

The Panchayat Samiti, however, rejected the appeal by its resolution dated September 4, 1963.

This decision was communicated to the Company by letter dated September 19, 1963, stating that the appeal "has been rejected by the Samiti as per its resolution dated 4th September, 1963, because the same was not filed within limitation as per the provisions of Bombay Village Panchayat Act and Rule 5 of Taxes and Fees Rules of 1960.

" The Company thereupon filed an appeal before the Standing Committee, Zila Parishad, Nagpur hereinafter, referred to as the Standing Committee on October 22, 1963.

While the appeal was pending, the Tehsildar Ramtek on January 14, 1964, approved the octroi limits and the number and location of octroi nakas within the limits of the jurisdiction of the Panchayat under r. 21 of the Fees Rules.

On April 6, 1964, the Standing Committee allowed the appeal of the Company on two grounds; first, that it was necessary for the Panchayat to have the octroi limits fixed with the approval of the Collector before levying octroi under r. 21; and secondly, that the Company was not importing tea within the limits of the Panchayat for consumption, use or sale.

Thereupon, the Panchayat, as already stated, filed an application under article 226 of the Constitution before the High Court.

The High Court held that the Panchayat Samiti could not dismiss the appeal of the Company as being barred by limitation because r. 5 of the Fees Rules was ultra vires the powers of the rule making authority.

The High Court further held that the octroi duty was not validly levied by the Panchayat as it had failed to fix the octroi limits in accordance with law.

The High Court did not deal with the question whether the company 's tea was imported into the limits of the Panchayat for consumption, use or sale because it felt that sufficient facts had not been found by the Standing Committee.

The High Court felt that it would not be proper to determine facts for itself.

The learned counsel for the appellant contends before us (1) that r. 5 of the Fees Rules was intraviress (2) that the Standing Committee had no jurisdiction to decide the appeal on merits as the appeal to the Panchayat Samiti was barred by limitation; (3) that the octroi duty has been levied in accordance with law; (4) that, at any rate, the levy was good after the octroi limits were fixed on January 14, 1964; (5) that the approval of the octroi limits on January 14, 1964, relates back to April 1, 1963; and (6) that the tea was imported into the Panchayat limits for consumption, use or sale.

Before we deal with these points it is necessary to set out the relevant statutory provisions.

Section 3(13) of the Bombay Village Panchayat Act, 1958 (Bombay Act III of 1959) defines "octroi" or "octroi duty" to mean "a tax on the 'entry of goods into a village 217 for consumption, use or sale therein".

Section 124(1) empowers Panchayats to levy all or any of the taxes and fees mentioned therein, and reads as follows: "124(1).

It shall be competent to a panchayat to levy all or any of the following taxes and, fees at such rates as may be decided by it (but subject to the minimum and maximum rates which may be fixed by the State Government) and in such manner and subject to such exemptions as may be prescribed, namely: . . . . . . . . . (ii) octroi. . . " Section 124(5) provides for appeals in these terms: "Any person aggrieved by the assessment, levy or imposition of any tax or fee may appeal to the Panchayat Samiti.

A further appeal against the order of the Panchayat Samiti shall lie to the Standing Committee, whose decision shall be final." Section 176(1) enables the State Government to make rules for carrying into effect the purposes of the Act.

Section 176(2)(xxvi) provides: "176(2) In particular but without prejudice to the generality of the foregoing provision, the State Government may make rules (xxvi)under section 124 laying down the maximum and the minimum rates and the manner in which and the exemption subject to which taxes and fees specified in the section shall be leviable;. . ." In exercise of the powers under s.176 of the Act, the State Government made the rules called the Maharashtra Village Panchayat Taxes and Fees Rules, 1960.

Part I of the Fees Rules is headed "General", and apart from definitions it consists of three rules, which read as follows: "3.

Procedure for levying tax or fee.

Every panchayat before deciding to levy a tax or fee shall observe the following procedure, namely: (a) The Panchayat shall, by resolution passed at its meeting, select a tax or fee which it proposes to levy and in such resolution shall specify the rate at which it is to be levied.

(b) The Panchayat shall then notify to the public the proposal together with that Part of these rules 218 which relates to that tax or fee by beat of drum in the village and by means of a notice affixed in the office of the panchayat and, at the village chavdi or chora, specifying a date, not earlier than one month after the date of such publication, on or after which the panchayat shall take the proposal into consideration.

(c) Any inhabitant of the village objecting to the levy of the tax or fee proposed by the panchayat may send his objection or suggestion in writing on or before the date specified in the notice, published under clause (b).

(d) On or after the date fixed under clause (b), the panchayat shall consider all objections and suggestions made under clause (c) and may finally select a tax or a fee and decide the rate at which it is to be levied.

Final publication of rules relating to tax or fee to be levied.

Where a panchayat finally decides to levy any tax or fee the rules in that Part, of these rules which relate to such tax or fee, together with a notice stating the tax or fee to be levied and the rate thereof, shall be published by the panchayat by affixing a copy thereof in the office of the panchayat.

It shall also announce by beat of drum in the village the fact of such publication.

The tax or fee shall accordingly be levied from.

the date which shall be specified in the notice and which shall not be earlier than one month after the date of publication of the notice.

Appeal against levy of any tax or fee A person desiring to make an appeal under sub section (5) of section 124, shall do so within sixty days from the date of publication of the notice under rule 4.

The scheme of the Fees Rules is first to prescribe general rules and then to deal individually with various taxes.

Part II deals with tax on Buildings and Lands; Part III with Octroi; Part IV with Pilgrim Tax; Part V with tax on Fairs, Festivals and Entertainments; Part VI with taxes on Bicycles and on Vehicles drawn by Animals; and so on.

We are concerned with Part ITT.

This Part consists of rules 21 to 35, and two Schedules.

The important rules are rules 21, 22 and 23, and may be set out in full: "21.

Fixing of octroi limits and nakas.

A Panchayat shall, with the approval of the Collector or of any officer authorised by the Collector not below the rank of Mamlatdar Tehsildar, Naib Tehsildar or Mahalkari, fix octroi limits and the number and location of octroi Nakas within 219 the limits of its jurisdiction.

Rate of octroi Octroi may be levied by a panchayat, after following the procedure prescribed in rules 3 and 4, on all or any of the goods specified in column 1 of Schedule 1, annexed, to this Part, which are imported into the octroi limits for consumption, use or sale therein and at such rates as may be decided by it but not below the minimum and not exceeding the maximum rates specified in columns 2 and 3, respectively, of that Schedule.

Payment of octroi on introduction of goods, etc.

The octroi shall be paid at the octroi Naka at the time when the articles in respect of which it is leviable are imported into the octroi limits of a panchayat.

" Rules 30, 31, 32 and 33 deal with refund of octroi.

We may first deal with the question of the validity of the levy of octroi duty.

It seems to us that the octroi duty has been levied in accordance with law.

It would be noticed that the rule which authorises the levy is r.22, but it enjoins that the procedure prescribed in rr.3 and 4 should be followed before the octroi duty can be levied.

When we turn to rr.3 and 4, it would be noticed that these rules prescribe the procedure for levying tax or fee and are not confined to octroi duty only.

Rule 7 which deals with tax on buildings and lands also prescribes that the panchayat shall follow the procedure prescribed in rr.3 and 4 before levying a tax on buildings and lands.

Similarly, r.37 which deals with tax on pilgrims provides that the procedure prescribed in rr.3 and 4 should be followed.

Again, in r.53, which deals with tax on vehicles, a reference is made to rr.

3 and 4.

Rule 71 which deals with tax on professions also contains a reference to rr. 3 and 4.

Rule 84 which deals with fee on markets and weekly bazars has a reference to rr.3 and 4.

Rule 93 which deals with fee on cartstands and tonga stands makes the procedure in rr.3 and 4 appli cable.

The scheme of the Fees Rules accordingly seems to be that the general procedure for levying taxes or fees is laid down and then this procedure is made applicable to the levy of various taxes mentioned in the other parts of the Rules.

Viewed in this background, it seems to us that r.3(b) does not require the Panchayat to fix the octroi limits in the resolution passed under r.3(a).

It only deals with two items; (1) selection of the tax and the rate at which it is to be levied.

Rule 3(c) has to be similarly read.

The inhabitants of the village would be entitled to object only to these two matters, namely, (1) the tax or fee imposed and the rate at which it is levied.

Under r.3(d) what the panchayat does is to consider objections and suggestions and then finally make the choice as regards two things, i.e., the tax or fee to be imposed and the rate at which it is to be levied.

220 This interpretation is reinforced by a proper reading of r. 4.

Rule 4 requires a notice stating two things; (1) the tax or fee to be levied and (2) the rate.

But the learned counsel for the Company, Mr. Ashok Sen, argues that this interpretation is not correct because para 2 of r.4 says that the tax shall accordingly be levied from the date which shall be specified in the notice, and he says that if the octroi limits had not been approved of by the time the resolution is passed, how could the tax be levied from the date specified in the notice.

But r.4 has to be read alongwith r.21, and if so read, it would mean that before the octroi duty can start being levied, r.21 must be complied with.

In other words, para 2 of r.4.

must be read to mean that the octroi will be levied from that date provided r.21 had been complied with.

We are, however, unable to agree with the learned counsel for the appellant that before the octroi limits are approved octroi can be collected.

We consider that the fixing of the octroi limits with the approval of the Collector is an essential condition precedent to the levy of octroi duty.

The learned counsel for the appellant says that the approval of the Collector on January 14, 1964, relates back and, therefore, the levy of octroi from April 1, 1963, was regularised.

We are unable to agree with this submission.

Apart from the fact that it may in certain circumstances lead to illegal levies, there is nothing in the language of r.21 which indicates that the Collector can regularise an imposition made without the authority of law.

The Collector may in particular cases enlarge the octroi limits or reduce the octroi limits and it would lead to great confusion if either of the things happens after the Panchayat had been collecting octroi duty within the octroi limits submitted by it to collector for approval.

We may here deal with a minor point which was mentioned in the course of arguments.

The High Court held that "r.3(b) must therefore be interpreted as requiring the Panchayat to notify to the public not only the the proposal about the tax selected by it for levy, but also the rules relating to that tax which must mean the action taken under the Act and the rules.

" On the language of r.3(b) we are unable to appreciate how action taken under the Act and the rules is required to be notified to the public.

There is nothing in the language to warrant such a construction.

In conclusion we hold that the octroi duty was validly levied and that it could be imposed and collected with effect from January 14, 1964.

Mr. Sen raised another point not dealt with by the High Court.

He urges that there was no proper publication under r.4.

We are unable to allow him to raise this point at this stage.

He says that this point was raised before the High Court but it has not been 221 A dealt with by it.

He points out a passage in the judgment of the High Court but we are unable to agree with him that the High Court has implied that this point was raised before it.

He further says that this point was taken in the return filed on behalf of the Company.

Para 2 of the return only alleged: "This respondent says that at that time no copy of the Rules required to be published by Rule 4 of the Rules was exhibited along with the said Notice.

This respondent is not aware and, does not admit that the fact of publication of the Notice under Rule 4 was announced by beat of drum in the village.

" This allegation is reiterated in para 9 of the return.

No such specific point was taken in the grounds of appeal to the Panchayat Samiti.

It was broadly stated that the procedure required to be followed for imposing octroi had not been followed in imposing the same.

Similarly, in the grounds of appeal to the Standing Committee, vague allegations were made "that the village Panchayat has erred in law in not following the procedure contemplated by law in the matter of imposing the octroi and has acted contrary to the principles of natural justice on an assumption that the formalities contemplated by law were complied with." He relies on the notice which is on the record to show that as a matter of fact the publication was not in accordance with law.

In the circumstances noted above we are unable to allow him to raise this point at this stage.

Coming to the question of the vires of r.5, it seems to us that the High Court has placed a wrong interpretation on r.5.

The High Court has held that as r. 5 applies to all appeals under s.124(5) of the Panchayat Act, the fixing of the commencement of the period of limitation as the date of publication of the notice under r.4 for all appeals is arbitrary and destructive of the right of appeal.

But this interpretation, with respect is not correct, if r.5 is read in the setting in which it occurs.

Rule 5 follows imme diately rr.3 and 4 and is headed "Appeal against levy of any tax or fee", and the period of sixty days of limitation commences from the date of the publication of the notice under r.4, i.e., the notice following the decision of a Panchayat to levy any tax or fee.

This date shows that r.5 is dealing only with appeals against levy of any tax and not with the assessment or imposition of a tax or any further appeals to the Panchayat Simiti under section 124(5).

It is true that the opening sentence makes a reference to an appeal under sub section

(5) of section 124, and this opening sentence would cover all II appeals under sub section

(5) of section 124, but in the context and setting, the heading of r. 5 brings out the scope of the rule.

Accordingly.

the appeal of the Company to the Samiti was wrongly dismissed as time barred.

It follows from this that the Standing Committee was entitled to deal with the appeal on merits.

222 The only point that remains is whether the Company brought tea into the octroi limits of the Panchayat for consumption, use or sale, therein.

As we have pointed out, the High Court felt difficulty in dealing with the question because neither the Panchayat Samiti nor the Standing Committee had found sufficient facts to enable it to deal with the question.

Mr. Sen says that he is willing to take the facts as stated at the bar by the learned counsel for the appellant.

But we consider that it is an unsatisfactory way of dealing with questions of fact.

Before this question can be dealt with satisfactorily, all the relevant facts must be found by the Standing Committee, It is true that the Standing Committee inspected the premises of the Company but in their order they have given very scanty facts, They do not say whether the tea is crushed, processed or treated chemically to convert it into a marketable commodity.

The learned counsel for the Panchayat contends that these things are done and that the resultant product is completely different from the tea imported into octroi limits.

It is also not quite clear whether the tea which is imported by the Company is known in trade circles as a different commodity from the tea actually sent out in boxes.

In the circumstances we must also decline to deal with this point.

In the result the appeal is allowed, and it is declared that the Panchayat could validly impose octroi duty from January 14, 1964, in accordance with the resolutions dated February 25, 1963, and March 17, 1963.

The case is remanded to the High Court to deal with the question whether the Company imported tea for the purpose of consumption, use or sale within the octroi limits of the Panchayat.

The High Court may either remand the case to the Panchayat Samiti or deal with it as it may consider best in accordance with law.

Under the circumstances there will be no order as to costs in this appeal.

G.C. Appeal allowed.

Summary: The appellant Panchayat levied octroi duty on goods coming within its limits by following the procedure laid down in rr. 3 and 4 of the Maharashtra Village Panchayats Taxes and Fees Rules 1960.

Summary: Although the resolution finally levying octroi was passed on February 25, 1963 and the octroi limits were fixed by resolution dated March 17, 1963 the approval of the Collector to the octroi limits as required by r. 21 was not obtained till January 14, 1964.

Summary: When the Panchayat began collecting octroi on April 1, 1963 the respondent company appealed under section 124(5) of the Bombay Village Panchayat Act, 1958 to the Panchayat Samita.

Summary: The appeal was rejected as it was considered time barred under r. 5 of the Taxes & Fees Rules which required an appeal under section 124(5) of the Act to be filed within 60 days of the publication of the notice under r. 4.

Summary: On further appeal the Standing Committee, Zila Parishad, Nagpur decided in favour of the respondent company on the ground that the Panchayat had not complied with r. 21.

Summary: The Panchayat filed a writ petition under article 226 of the Constitution.

Summary: The High Court upheld the findIng of the Standing Committee as to the effect of non compliance with r. 21.

Summary: It however further held that r. 5 in requiring all appeals under a. 124(5) of the Act to be filed within 60 days of the publication of the notice under section 4 was arbitrary and destructive of the right of appeal and therefore ultra vires.

Summary: The Panchayat appealed to this Court.

Summary: Held: (i) Octroi can be validly levied under r. 22 after following the procedure in rr.

Summary: 3 and 4 Rule 3 deals only with (i) selection of the tax and (ii) the rate at which it is to be levied.

Summary: Rule 4 deals with final publication of the notice levying octroi.

Summary: The levy of octroi under r. 22 read with rr. 3 and 4 does not require prior approval to the octroi limits by the Collector under r. 21.

Summary: [219D H; 220A C].

Summary: (ii) However the octroi cannnot be validly collected before the octroi limits are approved by the Collector under r. 21.

Summary: Collections made earlier cannot be regularised by subsequent approval.

Summary: The plea on behalf of the appellant that the approval of the Collector on January 14, 1964 should relate back to April 1, 1963 could not be accepted.

Summary: [220 D E].

Summary: (iii) Rule 5 is not invalid as it does not apply to all appeals under, section 124(5).

Summary: The rule follows rr. 3 and 4 and is headed "appeal against levy of any tax or fee," and the period of sixty days of limitation commences from the date of the publication of the notice 214 under r. 4 i.e. the notice following the decision of a Panchayat to levy any tax or fee.

Summary: This date shows that r. 5 is dealing only with appeals against levy of any tax and not with the assessment or imposition of a tax or any further appeals to the Panchayat Samiti under section 124(5).

Summary: In its context and setting the heading of r. 5 brings out the scope of the rule, [220 F H].

Summary: Accordingly the appeal of the company to the Samiti was wrongly dismissed as time barred.

Summary: It followed from this that the Standing Committee was entitled to deal with the appeal on merits.

Summary: [220 H].


iminal Appeal No. 46 of 1957.

Appeal by special leave from the judgment and order dated the February 4, 1955, of the Bombay High Court in Criminal Appeal No. 1256 of 1954, arising out of the judgment and order dated June 19, 1954, of the Chief Presidency Magistrate, Bombay, in Case No. 176/S of 1953.

Hardayal Hardy, for the appellants.

H. J. Umrigar and B. H. Dhebar, for the respondent.

April 21.

The Judgment of the Court was delivered by KAPUR, J.

This is an appeal by special leave against the judgment and order of the High Court of Bombay reversing the judgment of the Chief Presidency Magistrate, Bombay, and thus convicting accused Nos. 1 & 5 under section 31(1) read with section 33(1) of the (XIV of 1947) (hereinafter called the Act) and sentencing accused No. 1 to a fine of Rs. 250 and accused No. 5 to a fine of Rs. 50, 736 The appellants are the Andheri Marol Kurla Bus Service who was accused No. 1 (now appellant No. 1) and its Manager H. M. Khan who was accused No. 5 (now appellant No. 2).

Some disputes arose between the appellant No. 1 and its workmen.

On December 13, 1951, the Conciliation Officer wrote to the appellant No. I and enclosed the demands of the Union which were dated August 9, 1951.

On December 31, 1951, the appellant No. I was asked to appear before the Conciliation Officer on January 9, 1952, and after getting one adjournment the appellant No. I appeared before the Conciliation Officer on January 17, 1952, and filed its Written Statement and raised various objections.

The next date of hearing was January 31, 1952, and the proceedings went on till June 2, 1952, when the appellant No. 1 wrote to the Conciliation Officer saying that no useful purpose would be served by holding any further meetings.

On May 9, 1952, the Union had also indicated to the Conciliation Officer that the negotiations had failed.

On March 18, 1952, the appellant dismissed Louis Pereira, a bus conductor and proceedings were taken on a complaint by Assistant Commissioner of Labour under section 33 read with section 31 of the Act against 5 accused persons the two appellants and the partners of appellant No. 1.

The Chief Presidency Magistrate acquitted all the accused including the appellants and held that as the conciliation proceedings had continued for a period of more than 14 days as from January 17, 1952, further proceedings for conciliation were illegal and therefore the accused persons could not be convicted under section 31(1)of the Act.

The State took an appeal to the High Court and the judgment of acquittal was reversed and of the accused persons the two appellants were convicted and the others were acquitted.

The two appellants have appealed by special leave.

The question for decision is whether the conciliation proceedings could be said to be pending when Louis Pereira was dismissed.

If the answer is in the affirmative then the appellants have been properly convicted and if not the conviction must be set aside.

Section 31(1) makes the contravention of the provision 737 of section 33 of the Act an offence punishable with imprisonment for a period which may extend to six months or with fine or with both.

Section 33(1) pro K. vides: section 33(1) " During the pendency of any conciliation proceedings before a conciliation officer or a Board or of any proceeding before a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall: (a) in regard to any matter connected with the dispute, alter to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings; or (b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending ".

Therefore the question reduces itself to the meaning of the words " pendency of any conciliation proceedings before a conciliation officer ".

The argument raised on behalf of the appellant is that the object of conciliation is to get a settlement made with expedition and therefore under section 12 the Conciliation Officer was bound to make his report within 14 days of the commencement of the conciliation proceedings or within such shorter period fixed by the appropriate Government.

From this it was submitted that as 14 days had expired before March 18, 1952, the dismissal could not be said to be one within the words " pendency of conciliation proceedings ".

The Act provides for commencement and conclusion of conciliation proceedings under section 20 but the first sub section of section 20 deals with what are called utility services and sub section 2 of that section provides as to when the conciliation proceedings conclude.

That sub section is as follows: section 20(1). . . . . . . . . (2) A conciliation proceeding shall be deemed to have concluded 93 738 (a) where a settlement is arrived at, when a memorandum of the settlement is signed by the par ties to the dispute; (b) where no settlement is arrived at, when the report of the conciliation officer is received by the appropriate Government or when the report of the Board is published under s, 17, as the case may be; or (c) when a reference is made to a Court, Labour Court, Tribunal or National Tribunal under section 10 during the pendency of conciliation proceedings ".

The provisions of sub section 2 apply to all conciliation proceedings whether in regard to utility services or otherwise.

All conciliation proceedings under this sub section shall be deemed to have concluded in the case where no settlement is reached, when the report of the Conciliation Officer is received by the appropriate Government.

The conciliation proceedings therefore do not end when the report under section 12( 6) is made by the Conciliation Officer but when that report is received by the appropriate Government.

It was contended that the conciliation proceedings should be held to terminate when the Conciliation Officer is required under section 12(6) of the Act to submit his report but the provisions of the Act above quoted do not support this contention as the termination of the conciliation proceedings is deemed to take place when the report is received by the appropriate Government.

This is how section 20(2)(b) was interpreted in Workers of the Industry Colliery, Dhanbad vs Management of the Industry Colliery (1).

It was next contended that on this interpretation the conciliation proceedings could be prolonged much beyond what was contemplated by the Act and the termination would depend upon how soon a report is received by the appropriate Government.

It is true that section 12(6) of the Act contemplates the submission of the report by the Conciliation Officer within 14 days but that does not affect the pendency of the conciliation proceedings and if for some reason the Conciliation Officer delays the submission of his report his action (1) ; 739 may be reprehensible but that will not affect the interpretation to be put on section 20(2)(b) of the Act.

Section 12 lays down the duties of the Conciliation_ officer.

He is required to bring about settlement between the parties and must begin his investigation without delay and if no settlement is arrived at he is to submit his report to the appropriate Government.

No doubt section 12 contemplates that the report should be made and the proceedings closed within a fortnight and if proceedings are not closed but are carried on, as they were in the present case, or if the Conciliation Officer does not make his report within 14 days he may be guilty of a breach of duty but in law the proceedings do not automatically come to an end after 14 days but only terminate as provided in section 20(2)(b) of the Act.

Colliery Mazdoor Congress, Asansol vs New Beerbhoom Coal Co. Ltd (1).

As the conciliation proceedings were pending at the time when Louis Pereira was dismissed the appellants were rightly convicted under section 31(1) read with section 33 of the Act.

The appeal is therefore dismissed.

Appeal dismissed.

Summary: Conciliation proceedings were started in January.

Summary: 1952 with respect to some disputes between appellant 1 and its workmen.

Summary: On May 9, 1952, the Union and on June 2, 1952, the appellant 1 indicated to the Conciliation Officer that the negotiations had failed.

Summary: In the meantime on March ~I8, 1952, the appellant 1 dismissed (1) I.L.R. 1947 All.

Summary: 735 one of its workmen.

Summary: The two appellants and three others were prosecuted under section 31 Of the , for a breach of section 33 for dismissing a workman during the pendency of the conciliation proceedings.

Summary: The appellants contended that since section 12(6) required the report of the conciliation proceedings to be submitted within 14 days of the commencement thereof, the proceedings had terminated on the expiry of the 14 days and the dismissal was, therefore, not during the pendency of the conciliation proceedings.

Summary: Held that, in cases where no settlement was arrived at the conciliation proceedings terminated when the report of the Conciliation Officer was received by the appropriate Government and not on the expiry of 14 days from the commencement of the proceedings.

Summary: The commencement and termination of conciliation proceedings were determined by section 20 and not by section 12(6).

Summary: The dismissal of the workman was during the pendency of the conciliation proceedings and the appellants were guilty under section 31(1) of the Act.

Summary: Workers of the Industry Colliery, Dhanbad vs Management Of the Industry Colliery, ; ; Colliery Mazdoor Congress, Asansol vs New Beerbhoom Coal Co. Ltd., , applied.