civil appellate jurisdiction civil appeals number 1040
to 1072 of 1973.
from the judgment and order dated the 23rd april 1971
of the madras high companyrt in w.ps. number. 585 860 861 864. 3349 4149/1970 and 508 577 578 605-609 629 694-
697.797838884 894-897 902 909 934-936 1015 1049 of
1971. 5 . govind swaminathan a. v. rangam a. subhashini

venkataswami and n.s. sivam for the appellant. ashok sen y. s. chitlay c. natarajan and s.
gopalakrishnan for respondents  in c.as. number.10431046-
10481062-10641068-1070 1049-1050 1054 1057-1058 1061
1067 1055 1065 1059/75 . a. ramachandran for the respondents in c.as. 1060-
1061 1066/73
the judgment of the companyrt was delivered by
sarkaria j.-these appeals by the state of tamil nadu
on a certificate granted by the high companyrt under art. 133 1
 c  of the companystitution raise a question as to the
interpretation and scope of s. 7-a of the madras general
sales-tax act 1959  hereinafter called the madras act . all the respondents are dealers against whom either
pre-assessment proceedings have been initiated or
assessments have been made under s. 7-a of the act on the
purchase turnumberer of certain goods. the assessee-respondents in civil appeals number. 1040
1041 1042 and 1044 of 1973 are said to have purchased
arecanuts from agriculturists and thereafter transported
those goods outside the state for sale on companysignment basis. the twenty assessees in civil appeals number. 1046-48
1054-1057 1059-1060 1061 to 1066 1068 to 1072 of 1973 are
alleged to have purchased gingelly seeds from
agriculturists. gingelly seeds so purchased were crushed
into oil by them. the four respondents in civil appeals number. 1045 1050
1058 and 1067 of 1973 are alleged to have purchased butter
from householders and then companyverted it into ghee. the three assessees in civil appeals number. 1051 1052
and 1053 of 1973 purchased turmeric and grams from
agriculturists and then transported those goods outside the
state for sale on companysignment basis. the assessees in civil appeal number1043 of 1973 are
alleged to have purchased castor seeds from  unregistered
dealers on bought numberes and thereafter crushed them into
oil. it will be companyvenient to take tile last mentioned case
as a model. therein the joint companymercial tax officer leigh
bazar and gugai division salem issued a numberice dated 11-2-
1970 to the assessee in these terms
you are liable to pay purchase tax under s. 7-a
of the tngst act 1959 on the purchase price of the
castor seeds purchased and which was companysumed in the
manufacture of other goods for sales or disposed of
otherwise. the turnumberer of such purchases made from 27-11-
1969 ii lo 31-1-1970 amounts to rs. 3303.323.67 and
the tax due works out to rs. 909969.
you are hereby requested to pay the amount as
stated above within 10 days of the receipt of this
numberice. this was followed by a memorandum dated 5-3-1970 in
which it was inter alia stated
admittedly you have purchased the castor seeds
through your own bought numberes from registered dealers
whose transactions are number verifiable. as per section
10 the burden of proof that any dealer or any of his
transactions is number liable to tax under this act shall
lie on such dealer. therefore the purchases effected
by you have suffered tax already should be proved by
you. all the aforesaid dealers  hereafter referred to as the
assesses filed writ petitions under art. 226 of the
constitution in the high companyrt of madras challenging the
validity of the pre-assessment proceedings assessments and
the demand numberices. the high companyrt accepted the companytention
of the assesses that the circumstances companytemplated by that
provision  s. 7-a  did number include the possibility or
impossibility of verifiability of the transactions with the
dealers from whom the petitioner had purchased and further
observed
 that if the purpose of section 7-a is as
obviously it is to check evasion the phraseology has
fallen short of achieving that purpose. section 7-a
could have detailed the circumstances in which the tax
liability under section 7-a would arise. but instead
the circumstances have been related by the section to
sales or purchases which are liable to tax under the
act but for some reason numbertax is payable in respect
of them. it appears to be a companytradiction in terms and
we are unable to visualise the circumstances except
what we have numbericed above in which section 7-a companyld
be applied. in fact we are unable to visualise the
circumstances in which the two-fold requirement of the
sale being liable to tax but for some reason numbertax is
payable under sections 3 4 or 5 can arise except in
cases of exemption. even there the difficulty arises
whether one can say that the sale which is exempted is
liable to tax and then assume that because of
exemption the tax is number payable. to our minds the
language of sec. 7-a is far from clear as to its
intention and we think that the joint companymercial tax
officer was number justified in invoking section 7-a. with regard to the purchases of butter the learned
judges said
we fail to see how this companyld be done under
section 7-a. butter is taxable to multi-point talc and
is levied on the sales. that being the case we do number
understand how purchase tax can also be levied at the
purchase point of the sales which were also the subject
matter of charge. if the purchases were made from
householders or other persons who
are number dealers even so inasmuch as the transactions
were number liable to tax at all under the act on that
ground section 7-a companyld number be invoked. on the above reasoning the high companyrt by a companymon
judgment dated 28-5-1971 allowed all the writ petitions
and quashed the impugned proceedings and assessments. hence
these appeals by the state. section 7-a was inserted by the tamil nadu amendment
act 2 of 1970 with effect from 27-11-1969. at the relevant
time the material part of s. 7-a read as under

every dealer who in the companyrse of his
business purchases from a registered dealer or from any
other person any goods  the sale or purchase of which
is liable to tax under this act  in circumstances in
which numbertax is payable under section 3 4 or 5 as
the case may be and either-
 a  companysumes such goods in the manufacture of
other goods for sale or otherwise or
 b  disposes of such goods in any manner other
than by way of sale in the state or
 c  despatches them to i place outside the state
except as a direct result of sale or purchase
in the companyrse of inter-state trade or
commerce
shall pay tax on the turnumberer relating to the purchase
aforesaid at the rate mentioned in section 3 4 or 5 as the
case may be whatever be the quantum of such turnumberer in a
year
provided that a dealer  other than a casual trader
or agent of a number-resident dealer  purchasing goods the
sale of which is liable to tax under sub-section  1  of
section 3 shall-number be liable to pay tax under this
sub-section if his total turnumberer for a year is less
than twenty five thousand rupees.  2  . .  3  . . on analysis sub-section  1  breaks up into these
ingredients

the person who purchases the goods is a dealer

the purchase is made by him in the companyrse of his
business

such purchase is either from a registered dealer
or from any other person. -

the goods purchased are goods the sale or
purchase of which is. liable to tax under this
act. such purchase is in circumstances in which numbertax
is payable under section 3 4 or 5 as the case may
be and

the dealer either
 a  companysumes such goods in the manufacture of
other goods for sale or otherwise or
 b  despatches all such goods in any manner other
than by way of sale in the state or
 c  despatches them to a place outside the state
except as a direct result of sale or purchase
in the companyrse of inter-state trade or
commerce. section 7-a 1  can be invoked if the above ingredients
are cumulatively satisfied. the proviso to the sub-section
exempts a dealer  other than a casual trader or agent of a
number-resident dealer  if his turnumberer for a year is less
than rs. 25000/-  which by a subsequent amendment was
raised to rs. 50000/- . the assesses prima facie fall within the definition of
dealer in section 2 g  which includes number only a person
who carries on the business of selling supplying or
distributing goods but also the one who carries on the
business of buying only. difficulty in interpretation has
been experienced only with regard to that part of the sub-
section which relates to ingredients  4  and  5 . the high
court has taken the view that the expression goods the sale
or purchase of which is liable to tax under this act and
the phrase purchase in circumstances in which numbertax is
payable under section 3 4 or 5 are a companytradiction in
terms. we are unable to accept this interpretation which would
render section 7-a  1  wholly nugatory. with due respect it
seems to us that in arriving at this erroneous
interpretation the learned judges mixed up companycept of goods
liable to tax with the transactions liable to tax under the
act. the scheme of the act involves three interrelated but
distinct companycepts which may companyveniently be described as
taxable person taxable goods and taxable event. all
the three must be satisfied before a person can be saddled
with liability under that act nevertheless the
distinction between them is overlooked. may lead to serious
error in the companystruction and application of the act. goods is defined in s. 2 j  as
all kinds of movable property  other than
newspapers actionable claims stocks and shares and
securities  and includes all materials. companymodities
and articles  including those to be used in the fitting
out improvement or repair of movable property  and
all growing crops grass or things attached to or
forming part of the land which are agreed to be severed
before sale or under the companytract of sale. taxable person is a dealer as defined in s. 2 g . taxable event is the sale or purchase of goods effected
during the accounting
period although the tax liability is enforced only after
quantification is effected by assessment proceedings. sale is defined in s. 2 n  as . every transfer of the property in goods by one
person to anumberher in the companyrse of business for cash or
for deferred payment or other valuable companysideration
but does number include a mortgage hypothecation charge
or pledge. section 3 2  which is the main charging provision
enjoins that in the case of goods mentioned in the first
schedule the tax under this act shall be payable by a
dealer at the rate and only at the point specified therein
on the turnumberer in each year relating to such goods whatever
be the quantum of turnumberer in that year
the focal point in the expression goods the sale or
purchase of which is liable to tax under the act is the
character and class of goods in relation to their
exigibility. in a way this expression companytains a definition
of taxable goods that is goods mentioned in the first
schedule of the act the sale or purchase of which is liable
to tax at the rate and at the point specified in the
schedule. the words the sale or purchase of which is
liable to tax under the act qualify the term goods and
exclude by necessary implication goods the sale or purchase
of which is totally exempted from tax at all points under
s. 8 or s 17 1  of the act. the goods so exempted-number being
taxable goods-cannumber be brought to charge under s. 7-a. the words under the act will evidently include a
charge created by s. 7-a also. it is to be numbered that s. 7-
a is number subject to s. 35 it is by itself a charging
provision. section 7-a brings to tax goods the sale of which
would numbermally have been taxed at some point in the state
subsequent to their purchase by the dealer if those goods
are number available for taxation owing to the act of the
dealer in  a  companysuming them in the manufacture of other
goods for sale or other- wise or  b  despatching them in
any manner other than by way of sale in the state or  c
despatching them to a place outside the state except as a
direct result of sale or purchase in the companyrse of inter
state trade or companymerce. ingredients  4  and  5  are number mutually exclusive and
the existence of one does number necessarily negate the other. both can companyexist and in harmony. ingredient  4  would be
satisfied if it is shown that. the particular goods were
taxable goods i.e. the goods the sale or purchase of
which is generally taxable under the act. numberwithstanding
the goods being taxable goods there may be circumstances
in a given case by reason of which the particular sale or
purchase does number attract tax under s. 3 4 or 5. section 7-
a provides for such a situation and makes the purchase of
such goods taxable in the hands of the purchasing dealer on
his purchase turnumberer if any of the companyditions  a   b  and
 c  of sub-section  1  of s. 7-a is satisfied. the meaning and scope of the phrase purchases . circumstances in which numbertax is payable under section 3 4
or s and its companyexistence with ingredient  4  can be best
understood by applying it to the cases in hand. in all the forty appeals under companysideration the goods
in question. namely arecanuts gingelly seeds turmeric
grams castor-seeds and butter are goods the sale or
purchase of which is generally taxable under the act. that
is to say they are taxable goods. the sales of arecanuts
gingelly seeds turmeric and gram were number liable to tax in
the hands of the sellers as they were agriculturists and the
goods were the produce of the crops raised by them. similarly butter was purchased by the assesses companycerned
directly from the house-holders whose sales are number liable
to tax under he act. caster-seeds are said to have been
purchased by the assessee companycerned from unregistered
dealers under bought-numberes. if this is a fact then such
sales may number be liable to tax under the act
thus in all these cases the purchases have been made
by the dealer of goods the sale or purchase of which is
generally liable to tax under the act but because of the
circumstances aforesaid numbertax was suffered in respect of
the sale of these goods by the sellers. if it is a fact that
the gingelly seeds  vide civil appeals number. 1046 to 1048
1054 to 1057 1059 to 1069/1973  and caster-seeds  vide
civil appeal 1043/73  were crushed into oil and the butter
 vide civil appeals number. 1049 1050 1059 1067/73  was
converted into ghee by the purchasers-dealers companycerned the
condition in clause  a  of sub-section  1  of s. 7-a would
be satisfied and s. 7-a would be attracted. if in the case
of arecanuts  vide civil appeals number. 1040 to 1044/73
turmeric and gram  vide civil appeals number. 1051 to 153/73
the purchasing dealers transported these goods outside the
state for sale on companysignment basis their case would also
be companyered by clause  b  or  c  of s. 7-a  1  and such
dealers would be liable to tax on the purchase-turnumberer of
these goods. it may be remembered that s. 7-a is at once a charging
as well as a remedial provision. its main object is to plug
leakage and prevent evasion of tax. in interpreting such a
provision a companystruction which would defeat its purpose
and in effect obliterate it from the statute book should
be eschewed. if more than one companystruction is possible that
which preserves its workability and efficacy is to be
preferred to the one which would render it otiose or
sterile. the view taken by the high companyrt is repugnant to
this cardinal canumber of interpretation. in ganesh prasad dixit v. companymissioner of sales-tax 1
s. 7 of the madhya pradesh general sales tax act 1959  for
short madhya pradesh act  was under challenge. that section
was as follows
every dealer who in the companyrse of his business
purchases any taxable goods in circumstances in which
numbertax under section 6 is payable on the sale price of
such goods and
either companysumes such goods in the manufacture of other
goods for sale or otherwise or disposes of such goods
in any manner other than by way of sale in the state or
despatches them to a place outside the state except as
a direct result of sale or purchase in the companyrse of
inter-state trade or companymerce shall be liable to pay
tax on the purchase price of such goods at the same
rate at which it would have been leviable on the sale
price of such goods under section 6
provided
the assessee therein was a firm of building companytractors
and was registered as a dealer under the madhya pradesh act. the firm were purchasing building materials which were
taxable under the act and were using them in the companyrse of
their business. the sales-tax officer served a numberice upon
them to snumber cause why best-judgment assessment should number
be made against them. the assesses did number offer any
explanation. the sales-tax officer assessed the turnumberer in
respect of the sales as nil and assessed the firm to
purchase tax under s. 7 on the purchase turnumberer one of the
questions that fell for decision was whether in the facts
and circumstances of the case the applicant was a dealer
during the assessment period under the act and the
imposition of purchase tax on him under s. 7 of the act was
in order. answering the question in the affirmative this
court observed
the phraseology used in that section is somewhat
involved but the meaning of the section is fairly
plain. where numbersales tax is payable under s. 6 on the
sale price of the goods purchase tax is payable by the
dealer who buys taxable goods in the companyrse of his
business and  1  either companysumes such goods in the
manufacture of other goods for sale or  2  companysumes
such goods otherwise or  3  disposes of such goods in
any manner other than by way of sale in the state or
 2  despatches them to a place outside the state except
as a direct result of sale or purchase in the companyrse of
inter state trade or companymerce. the assesses are
registered as dealers and they have purchased building
materials in the companyrse of their business. the building
materials are taxable under the act and the appellants
have companysumed the materials otherwise than in the
manufacture of goods for sale and for a profit motive. on the plain words of s. 7 the purchase price is
taxable. the impugned s. 7-a is based on s 7 of the madhya
pradesh act although the language of these two provisions is
number companypletely identical yet their substance and object are
the same. instead of the longish phrase the goods the
sale or purchase of which is liable to tax under this act
employed in s. 7-a of the madras act s. 7 of the madhya
pradesh act companyveys the very companynumberation by using the
convenient terse expression taxable goods. the ratio
decidendi of ganesh prasad  supra  is therefore an apposite
guide for companystruing s. 7-a. unfortunately that decision. it seems. was number brought to the numberice of the learned
judges of the high companyrt. section 5-a of the kerala general sales tax act 1963
 for short the kerala act  which is identical with the
impugned provision runs thus
5a. levy of purchase tax-

every dealer who ill the companyrse of his business
purchases from a registered dealer or from ally
other per son any goods the sale or purchase of
which is liable lo tax under this act in
circumstances in which numbertax is payable under
section s and either-
 a  companysumes such goods in the manufacture of
other goods for sale or otherwise or
 b  disposes of such goods in any manner other
than by way of sale in the state or
 c  despatches them to any place outside the
state except as a direct result of sale or
purchase in the companyrse of inter-state trade
or companymerce. the validity of s. 5-a was challenged by a writ
petition before a learned judge  subramaniam poti j.  of
the kerala high companyrt in malabar fruit products companypany
bharananganam kottayam and or . v the sales tax officer
palai and ors.  1  it was companytended inter alia

the object sought to be achieved by the
introduction of s. 5-a of the act had number
been accomplished because the section is
vague

assuming that the section is clear enumbergh and
can be treated as a charging section the
section imposes tax number on the sale or
purchase of goods but on its use or
consumption

that the sate legislature had numbercompetency
to impose tax on the use and companysumption of
goods and so section is ineffective
holding that s. 5-a was valid and intra vires the state
legislature the learned judge explained the scheme of the
section thus
though numbermally a sale by a registered dealer or
by a dealer attracts tax there may be circumstances
under which the seller may number be liable as for
example when his turn over is below the specified
minimum. in such cases the goods are liable to be
taxed but the sales take place in circumstances in
which numbertax is payable at the point at which tax is
levied under the act. if the goods are number available in
the state for subsequent taxation by reason of one or
other of the circumstances mentioned in. clauses  a
 b  and  c  of section 5a 1  of the act then the
purchaser is sought to be made liable under section
5a. anumberher instance i can companyceive of is a case of a
dealer selling agricultural or horticultural produce
grown by him or grown in any land in which he has
interest whether as owners usufructuary mortgagee
tenant or otherwise. from the definition of turnumberer
in section 2 xxvii  of the act it is evident that the
proceeds of such sale would be excluded from the
turnumberer of a person who sells goods produced by him by
manufacture agriculture horticulture or otherwise
though merely by such sales he satisfies the definition
of a dealer in the act. thus such a person selling
such produce is t treated as a dealer within the
meaning of the act and the sales are of goods which are
taxable under the act but when he sells these goods it
is number part of his turnumberer. therefore it is a case of
a dealer selling goods liable to tax under the act in
circumstances in which numbertax is payable under the act. in such a case the purchaser is sought to be taxed
under section 5a provided the companyditions are satisfied. the case of growers selling goods to persons to whom
section sa thus applies is companyered by this example. the judgment of the learned judge was affirmed in
appeal by a division bench of the same high companyrt  vide
yusuf shabeer and ors. v. state of kerala and ors.  1  the
bench expressly dissented from the view taken by the madras
high companyrt in the judgment number under appeal. in our opinion the kerala high companyrt has companyrectly
construed s. 5a of the kerala act which is in pari materia
with the impugned s. 7a of the madras act. goods the sale
or purchase of which is liable to tax under this act in s.
7a 1  means taxable goods that is the kind of goods
the sale of which by a particular person or dealer may number
be taxable in the hands of seller but the purchase of the
same by a dealer in the companyrse of his business may
subsequently become taxable. we have pointed out and it
needs to be emphasised again that section 7a itself is a
charging section. it creates a liability against a dealer on
his purchase turnumberer with regard to goods the sale or
purchase of which though generally liable to tax under the
act have number due to the circumstances of particular sales
suffered tax under section 3 4 or 5 and which after the
purchase have been dealt by him in any of the modes
indicated in clauses  a  b  and  c  of section 7-a  1  .


civil appellate jurisdiction civil appeal number 1484 of
1971.
appeal by special leave from the award dated the 1971
of the industrial tribunal masharashtra bombay in reference
number i.t. 123 of 1968 published in the masharashtra
government gazette dated the 5th august 1971.

c. bhandare and dr. y.s. chitale o.c. mathur k.j. john and j.s. sinha for the appellant. jitendra sharma and janardan sharma for respondent number
1.

rajendra choudhary for respondent number 2.
the judgment of the companyrt was delivered by
koshal j. this is an appeal by special leave against
an award dated 30th april 1971 of the industrial tribunal
masharashtra  the tribunal for short  deciding a reference
made to it under clause  d  of sub-section i of section 10
of the industrial disputes act  hereinafter called the act
requiring adjudication of demands raised by the workmen of
the tata engineering and locomotive companypany limited
 machine tools division  chinchwad  hereinafter referred to
as the companypany . the facts leading to this appeal may be briefly set
out. the companypany came into existence under an order passed
by the high companyrt of masharashtra on the 27th june 1966
directing amalgamation of two pre-existing companycerns one
having the same name as the companypany and anumberher knumbern as the
investa machine
tools and engineering companypany. after the amalgmation a
section a of the workers of the companypay formed a union knumbern
as telco kamgar union  for short the telco union  which was
registered as such on the 2nd june 1967 but which even
before that submitted a charter of demands to the companypany
on the i st may 1967. subsequently other workers of the
company established anumberher union named the telco kamgar
sanghatana  hereinafter called the sanghatana  which
presented anumberher set of demands to the companypany on the 29th
september 1967. a settlement was reached in companyciliation
proceedings in relation to the demand last mentioned on the
3rd october 1967. being dissatisfied with the attitude of
the assistant labour companymissioner poona who acted as the
conciliation officer the telco union approached the state
government who made the reference culminating in the
impugned award. the reference was received by the tribunal on the
22nd march 1968 and was pending adjudication when on the
18th february 1970 the companypany filed in application
 exhibit c-10  stating that a settlement  exhibit c-10a  had
been reached between it and the sanghatana on the 7th
february 1973 that the same had been assented to by 564 out
of 635 daily-rated workmen that the dispute pending
adjudication before the tribunal related only to that
category of workmen and that it did number survive by reason of
the settlement. settlement exhibit c-10a was challenged by the telco
union through an application  exhibit u-1  made to the
tribunal on the 14th april 1970 and signed by 400 daily-
rated workmen who professed to be members of that union with
the allegation that it had been brought about by companyrcion
duress and false promises. in these circumstances the tribunal addressed itself
to the companytroversy regarding the legality and binding nature
of the settlement. in that behalf its findings were

there was numberevidence of the settlement being
vitiated by any duress companyrcion or false
promises. it was therefore both legal and fully
binding on the parties thereto under sub-section
 i  of section 18 read with clause  p  of section
2 of the act. numberattempt had been made by either party to the
reference to prove as to how many of the 564
workmen
who had assented to the settlement were members of
the sanghatana. those of the 564 workmen aforesaid who were number
members of the sanghatana were number bound by the
settlement in as much as they were number parties
thereto but had ratified or accepted the
settlement only after it had been reached and
such ratification and acceptance does number make
them parties to the settlement for the purposes of
the act. the tribunal therefore proceeded to find out whether
the settlement was just and fair and although it found it to
be so in most aspects it was of the opinion that an
increase in the additional daily wage was called for in
respect of each of the 7 grades of daily rated workmen. that
increase was calculated by it separately for each grade and
varies from rs. 7.80 to rs. 12.90 per month. by the impugned
award it declared accordingly refusing to act upon the
settlement although the same had been held by it to be legal
and binding on the parties to it. after hearing learned companynsel for the parties we
have companye to the companyclusion that finding  b  above set out
cannumber be sustained. it is number disputed before us that the
settlement dated 7th february 1970 was arrived at between
the companypany on the one hand and the sanghatana on the other
and also that it was assented to by the said 564 workmen by
means of a document  exhibit s-8  bearing their signatures
underneath a declaration which reads
we the following workers who are members of the
telco kamgar sanghatana hereby sign individually on
the settlement which has been agreed upon and signed
under section 2  p  of the industrial disputes act
1947. the terms and companyditions of the settlement are
acceptable to me and are binding on me.  emphasis supplied . it is numberbodys case that any of the signatories to
this declaration was number one of the said 635 workers or that
any of the signatures appearing underneath the declaration
was forged or fictitious. and if that be so the assertion
by each signatory to the declaration that he was a member of
the sanghatana has to be taken at its face value and
presumed to be companyrect until it is shown to be false. the
onus
to prove the falsity of the assertion in the case of any
particular a workman thus rested heavily on the telco union
but it made numberattempt to discharge the same. it has been
urged on its behalf that the very fact that 400 workmen had
challenged the settlement claiming to be members of the
telco union showed that the declaration made earlier was number
correct. number it is true that out of a total of 635 workmen
564 signed the declaration and later on 400 challenged the
settlement. the only reasonable inference to be drawn from
that circumstance would however be that at least 329
workers changed sides in between the 18th of february 1970
and the 14th of april 1970. lt cannumber be further
interpreted to mean in the absence of any other evidence on
the point that the declaration when made was false. in
this view of the matter we must hold that the declaration
constitutes presumptive proof of the fact that the
signatories to it were all members of the sanghatana when
they signed it. the companyrectness of finding  a  has number been assailed
before us on behalf of either party and in view of the
provisions of sub- l  section  1  of section 18 of the act
that finding must be upheld so that settlement dated the 7th
february 1970 would be binding on all workers who were
members of the sanghatana as on that date including the 564
workers who signed the declaration. companysequently finding  c
which is unexceptionable in so far as it goes loses all its
relevance and we need take numberfurther numberice of it. the companyclusion reached by the tribunal that the
settlement was number just and fair is again unsustainable. as
earlier pointed out the tribunal itself found that there
was numberhing wrong with the settlement in most of its aspects
and all that was necessary was to marginally increase the
additional daily wage. we are clearly of the opinion that
the approach adopted by the tribunal in dealing with the
matter was erroneous. if the settlement had been arrived at
by a vast majority of the companycerned workers with their eyes
open and was also aecepted by them in its totality it must
be presumed to be just and fair and number liable to be ignumbered
while deciding the reference merely because a small number
of workers  in this case 71 i.e. 11.18 per cent  were number
parties to it or refused to accept it or because the
tribunal was of the opinion that the workers deserved
marginally higher emoluments than they themselves thought
they did. a settlement cannumber be weighed in any golden
scales and the question whether it is just and fair has to
be answered on the basis of principles different from those
which companye into play when an
industrial dispute is under adjudication. in this companynection
we cannumber do better than quote extensively from herbertson
limited v. workmen of herbertson limited and others 1
wherein goswami j. speaking for the companyrt observed. besides the settlement has to be companysidered in
the light of the companyditions that were in force at the
time of the reference. it will number be companyrect to judge
the settlement merely in the light of the award which
was pending appeal before this companyrt. so far as the
parties are companycerned there will always be uncertainty
with regard to the result of the litigation in a companyrt
proceeding. when therefore negotiations take place
which have to be encouraged particularly between
labour and employer in the interest of general peace
and well being there is always give and take. having
regard to the nature of the dispute which was raised
as far back as 1968 the very fact of the existence of
a litigation with regard to the same matter which was
bound to take some time must have influenced both the
parties to companye to some settlement. the settlement has
to be taken as a package deal and when labour has
gained in the matter of wages and if there is some
reduction in the matter of dearness allowance so far as
the award is companycerned it cannumber be said that the
settlement as a whole is unfair and unjust. we should point out that there is some
misconception about this aspect of the case. the
question of adjudication has to be distinguished from a
voluntary settlement. it is true that this companyrt has
laid down certain principles with regard to the
fixation of dearness allowance and it may be even shown
that if the appeal is heard the said principles have
been companyrectly followed in the award. that however
will be numberanswer to the parties agreeing to a lesser
amount under certain given circumstances. by the
settlement labour has scored in some other aspects and
will save all unnecessary expenses in uncertain
litigation. the settlement therefore cannumber be judged
on the touch-stone of the principles which are laid
down by this companyrt for adjudication. there may be several factors that may influence
parties to a settlement as a phased endeavour in the
course of companylective bargaining. once companydiality is
established between the employer and labour in arriving
at a settlement which operates well for the period that
is in force there is always a likelihood of further
advances in the shape of improved emoluments by
voluntary settlement avoiding friction and unhealthy
litigation. this is the quintessence of settlement
which companyrts and tribunals should endeavour to
encourage. it is in that spirit the settlement has to
be judged and number by the yardstick adopted in
scrutinising an award in adjudication. the tribunal
fell into an error in invoking the principles that
should govern in adjudicating a dispute regarding
dearness allowance in judging whether the settlement
was just and fair. it is number possible to scan the settlement in bits
and pieces and hold some parts good and acceptable and
others bad. unless it can be demonstrated that the
objectionable portion is such that it companypletely
outweighs all the other advantages gained the companyrt
will be slow to hold a settlement as unfair and unjust. the settlement has to be accepted or rejected as a
whole and we are unable to reject it as a whole as
unfair or unjust. even before this companyrt the 3rd
respondent representing admittedly the large majority
of the workmen has stood by this settlement and that is
a strong factor which it is difficult to ignumbere. as
stated elsewhere in the judgment we cannumber also be
oblivious of the fact that all workmen of the companypany
have accepted the settlement. besides the period of
settlement has since expired and we are informed that
the employer and the 3rd respondent are negotiating
anumberher settlement with further improvements. these
factors apart from what has been stated above and the
need for industrial peace and harmony when a union
backed by a large majority of workmen has accepted a
settlement in the companyrse of companylective bargaining have
impelled us number to interfere with this settlement. the principles thus enunciated fully govern the facts
of the case in hand and respectfully following them we
hold that the
settlement dated the 7th february 1970 as a whole was just
and fair. there is numberquarrel with the argument addressed to
us on behalf of the workers that mere acquiescence in a
settlement or its acceptance by a worker would number make him
a party to the settlement for the purpose of section 18 of
the act  vide jhagrakhan companylieries  p  limited v. shri g.o. agarwal presiding officer central government industrial
tribunal-cum-labour companyrt jabalpur and others  i  it is
further unquestionable that a minumberity union of workers may
raise an industrial dispute even if anumberher union which
consists of the majority of them enters into a settlement
with the employer  vide tata chemicals limited v. its workmen

but then here the companypany is number raising a plea that
the 564 workers became parties to the settlement by reason
of their acquiescence in or acceptance of a settlement
already arrived at or a plea that the reference is number
maintainable because the telco union represents only a
minumberity of workers. on the other hand the only two
contentions raised by the companypany are-

that the settlement is binding on all members of
the sanghatana including the 564 mentioned above
because the sanghatana was a party to it and

that the reference is liable to be answered in
accordance with the settlement because the same is
just and fair. and both these are companytentions which we find fully
acceptable for reasons already stated.


civil appellate jurisdiction civil appeal number 467 of
1970.
from the judgment and order dated 25-4-1969 of the
madhya pradesh high companyrt in misc. petition number 4/67. n. mukherjee and g. s. chatterjee for the appellant. k. gambhir r. nath and miss ram rakhiani for the
respondent. the order of the companyrt was delivered by
untwalia j.-the appellant was an office superintendent
in the office of agriculture department. certain charges
were levelled against him. an enquiry was purported to be
held. after finding him guilty of some charges he was
reverted to a lower rank. he challenged that order by filing
a writ petition in the madhya pradesh high companyrt . that writ
petition was allowed and the order of reversion was quashed
on the ground that the enquiry held was number proper and
legal. in view of the order of the high companyrt the appellant
was reinstated in his original post of office
superintendent. but shortly after he was put under
suspension and fresh proceedings were started on the basis
of the same old charges. in the second proceedings he has
been found guilty of certain charges the details of which
are number necessary to be mentioned in our judgment. he was
again reverted and it was also directed in the order that
the allowance paid to him during the period of suspension
could remain intact. the appellant filed a second writ
petition in the high companyrt to challenge the fresh order of
reversion. the high companyrt has dismissed his writ petition. hence this appeal in this companyrt on grant of a certificate by
the high companyrt. mr. d. n. mukherjee learned companynsel for the appellant
urged only two points before us  1  that after the earlier
order of reversion was quashed by the high companyrt and after
the appellant was reinstated numbersecond enquiry on the very
same charges companyld be held and numbersecond order of reversion
could be legally and validly  made and  2  that appellant
was entitled to the full salary for the period of
suspension. we find numbersubstance in either of the points urged on
behalf of the appellant. the earlier order was quashed on
the technical ground. on merits a second enquiry companyld be
held. it was rightly held. the order of reinstatement does
number bring about any distinction in that regard. the
government had to pass that order because the earlier order
of reversion had been quashed by the high companyrt. without
reinstating the appellant it would have been difficult
perhaps unlawful to start a fresh enquiry against the
appellant. the observations of this companyrt in the last
paragraph of the judgment in state of assam anr. v. j. n.
roy biswas are number applicable to the facts of the present
case and do number help the appellant at all.


das gupta j.

these three appeals are directed against an order of the industrial companyrt madhya pradesh in three appeals from an order made by one mr. i. b. sanyal who was the certifying officer under the industrial employment  standing orders  act 1946 hereinafter referred to as the central standing orders act. by this order made on august 6 1962 mr. sanyal had certified the draft standing orders submitted by the general manager bhilai steel project madhya pradesh. on behalf of the several unions including the three unions who are the respondents before us an objection was raised that mr. sanyal had numberjurisdiction to certify the standing orders inasmuch as the madhya pradesh industrial workmen  standing orders  act 1959 applied to this industry and number the central standing orders act. mr. sanyal overruled this objection and passed his order as already stated on august 6 1962 certifying the draft standing orders. the industrial companyrt madhya pradesh to which the unions appealed against the order of certification has however held that mr. sanyal had numberjurisdiction to certify the standing orders and it was the labour companymissioner madhya pradesh who was companypetent to certify these. allowing the appeals the industrial companyrt set aside the order of the certifying officer as void being without jurisdiction. it is against this order that the present appeals have been filed after obtaining special leave of this companyrt. before us it is numberlonger disputed that on june 9 1960 when the draft standing orders were submitted to the certifying officer under the central standing orders act that officer had numberjurisdiction and the labour companymissioner madhya pradesh had jurisdiction to certify them. it has however been urged before us that long before the date on which mr. sanyal made his order certifying the standing orders the central standing orders act had become applicable to this industry to the exclusion of the madhya pradesh industrial employment  standing orders  act and so the certification companyld number be held to be without jurisdiction. we have numberdoubt that if before the actual date of certification mr. sanyal as the certifying officer under the central standing orders act had acquired jurisdiction the certification cannumber be held to be void merely because on the date when the orders were submitted before him he had numberjurisdiction.  vide municipal board pushkar v. state transport authority rajasthan others 1963 supp. 2 s.c.r. 373. . the position in law is that the application for certification of the standing orders though invalid at the time it was made because the officer had numberjurisdiction to deal with them became a valid application when he did acquire jurisdiction. to put the matter in anumberher way the application should be deemed to have been renewed immediately after the officer acquired jurisdiction in the matter and so that jurisdiction having companytinued up to the date of the certification the certification also would be with jurisdiction and binding. the question that requires examination therefore is whether before the date of certification i.e. august 6 1962 the certifying officer under the central standing orders act had become companypetent to certify the standing orders for the bhilai steel project. the answer to this question depends on whether on that date i.e. august 6 1962 the central standing orders act or the madhya pradesh industrial employment standing orders act applied to the bhilai steel industry. the central act the industrial employment standing orders act 1946 came into force on april 23 1946. shortly after this the c.p. berar industrial disputes settlement act 1947 was enacted. it extended to the whole of madhya pradesh. sections 2 to 61 of the act came into force in all the industries of madhya pradesh except certain industries specified in the numberification that brought these sections into force. this numberification was dated numberember 20 1947. by a further numberification dated july 22 1958 this first numberification was amended. the companysequence of the amendment was that ss. 2 to 61 of the act became applicable with effect from august 1 1958 to the steel industry at bhilai. in 1959 the madhya pradesh legislature passed a separate act act number xix of 1959 dealing with matters regarding standing orders for industrial workmen. this repealed s. 30 of the c.p. berar industrial disputes settlement act 1947. the result was that from the date on which act xix of 1959 came into force i.e. december 31 1960 s. 30 of the c.p. berar industrial disputes settlement act 1947 was numberlonger in force in madhya pradesh. the provisions of act xix of 1959 as regards the certification of standing orders were also number applicable to bhilai because s. 1 sub-s. 3 of this act while laying down that the act applied to every industrial establishment wherein 20 or more workmen were employed and to such class or classes of other industrial establishments as the state government might by numberification specify was made subject to a proviso in these words -
provided that it shall number apply except with the companysent of the central government to an industrial establishment under the companytrol of the central government or a railway administration or mines or oil-fields. admittedly this companysent of the central government was number given to the application of this act the madhya pradesh act xix of 1959 to bhilai at the same time it is number open to dispute before us that the steel industry at bhilai was an industrial establishment under the companytrol of the central government. there was a faint attempt on the part of the learned companynsel who appeared before us on behalf of the respondents to suggest that the steel industry at bhilai was number under the companytrol of the central government. numbersuch point appears to have been raised either before mr. sanyal or the industrial companyrt. so we did number permit the respondents to raise this point for the first time here. it may also be mentioned in this companynection that in the very numberification made by the madhya pradesh government on july 22 1958 that government made the definite statement that the steel industry at bhilai was carried on under the authority of the central government. we think it reasonable to presume for the purpose of these appeals that this statement made by the government of madhya pradesh was companyrect. it follows therefore that the bhilai steel industry was an industrial establishment under the companytrol of the central government within the meaning of the proviso to s. 1 sub-s. 3 of act xix of 1959 and companysequently in the absence of the companysent of the central government it did number apply to the bhilai steel industry. on and after december 31 1960 therefore neither s. 30 of the 1947 act number act xix of 1959 applied to the bhilai steel industry. there is numberescape therefore from the companyclusion that on and after december 31 1960 the bhilai steel industry was governed as regards the matter of standing orders by the central standing orders act of 1946.

this companytinued to be the position till numberember 25 1961 when act xix of 1959 was repealed and was replaced by the madhya pradesh act xxvi of 1961 madhya pradesh industrial establishment standing orders act 1961. it would seem that this act was applicable to the bhilai steel industry as it did number companytain any provision similar to the one in section 1 sub-s. 3 of the 1959 act. the madhya pradesh act number xxvi of 1961 was however amended in 1962 by the madhya pradesh act 5 of 1962. this amending act added to sub-s. 1 of s. 2 of the 1961 act the following provision -
provided that it shall number apply to an undertaking carried on by or under the authority of the central government or a railway administration or a mine or an oil field. the effect of this was that act xxvi of 1961 which became applicable to the bhilai steel industry on numberember 25 1961 ceased to be applicable to the bhilai steel industry on and from april 29 1962 when the president assented to the amending act. after this date the position again became the same as it was immediately before the madhya pradesh act 26 of 1961 came into force. that is numbere of the madhya pradesh acts about the standing orders was applicable to the bhilai steel industry. so the field was open for the central standing orders act to operate in respect of the bhilai steel industry on and from the date when the madhya pradesh act v of 1962 came into force. we have therefore reached the companyclusion that for sometime before august 6 1962 when the order of certification was passed the certifying officer under the central government standing orders act had become companypetent to certify the standing orders for the bhilai steel industry. the industrial companyrt took numbere of the position that on the mater of the standing orders the 1947 act was repealed by the 1959 act with effect from december 31 1960. it was however of opinion that there being numberspecific saving clause in the act of 1959 as regards the numberification of july 22 1958 the act of 1947 applied to the bhilai steel industry and that numberification number having been superseded by any subsequent numberification it companytinued to be effective in respect of the bhilai steel industry under s. 25 of the madhya pradesh general clauses act. on this view of the effect of s. 25 of the madhya pradesh general clauses act it based its companyclusion that the state act companytinued to be applicable to the bhilai steel industry. we are of opinion that s. 25 of the madhya pradesh general clauses act companyld number save the numberification in question after the 1947 act was repealed. that section provides -
where any enactment is repealed and re-enacted by a madhya pradesh act with or without modification then unless it is otherwise expressly provided any appointment numberification order scheme rule regulation form or bye-law made or issued under the repealed enactment shall so far as it is number inconsistent with the provisions re-enacted companytinue in force and be deemed to have been made or issued under the provisions so re-enacted unless and until it is superseded by any appointment numberification order scheme rule regulation form or bye-law made or issued under the provisions so re-enacted. it appears clear to us that the effect of the proviso to s. 1 sub-s. 3 of act xix of 1959 being that this new act-the re-enacted legislation - did number apply to bhilai the numberification already issued under the old act was clearly inconsistent with the new legislation. section 25 of the madhya pradesh general clauses act was therefore of numberavail and companyld number save that numberification.


civil appellate jurisdiction civil appeal number 498 of 1993.
from the judgment and order dated 19.2.92 of the allahabad
high companyrt in w.p. number 7498/90. k goel for the appellants. labh chand  in-person  for the respondent. the judgment of the companyrt was delivered by
venkatachala j. leave granted. respondent who was in the service of the u.p. government as
an executive engineer minumber irrigation banda served a
numberice dated december 19 1989 on the secretary area
development-2 u.p. government lucknumber seeking from the
government settlement of his outstanding claims by march
31 1990 and grant of permission to him to retire from
service voluntarily from that date. it was stated in that
numberice that the respondents outstanding claims remaining
unsettled by the government before march 31 1990 shall be
settled before june 30 1990 and he shall
then be allowed to retire voluntarily. however changing
his stance the respondent wrote a letter dated december 20
1989 to the self-same secretary seeking grant of the
governments permission to retire voluntarily from march 31
1990 even if his outstanding claims with it were number settled
by that date. but the government did number grant permission
to the respondent to voluntarily retire from its service
with effect from march 31 1990 as had been sought by him. instead the governumber of u.p. purporting to exercise his
powers under f.r. 56 of the financial hand book volume ii
part ii-iv as amended upto date  to be referred to as f.r. 56  issued an order dated january 6 1990 companypulsorily
retiring the respondent from the government service with
effect from 6.1.1990 and giving him the benefit of three
months wages at the last drawn rates. numberdoubt that order
of companypulsory retirement of the respondent was challenged by
him in a writ petition w.p. number 1980 of 1990 filed before
the high companyrt of judicature at allahabad. but a division
bench of that companyrt refused to entertain that writ petition
and dismissed it by its order dated march 29 1990 which
read
learned companynsel for the state has produced
the record and has also filed companynter
affidavit to which rejoinder affidavit has
been filed. however after looking into the
record we are of the opinion that it is number a
fit case in which the petitioner should be
allowed to bye-pass the alternative remedy
available to him before the u.p. public
services tribunal. on account of this
alternative remedy being available to the
petitioner this petition is dismissed in
limine. interim order if any to vacate. the validity of the said order of dismissal of the writ
petition made by the division bench of the high companyrt was
number questioned by the respondent in any appeal or any other
legal proceeding. the respondent did number also choose to
approach the u.p. public services tribunal to seek reliefs
respecting the order of his companypulsory retirement although
the division bench of the high companyrt had dismissed his writ
petition for number availing of the alternative remedy before
that tribunal. curiously the respondent resorted to the companyrse of filing a
second writ petition before the same high companyrt challenging
over again the very order of the u.p. government by which he
had been companypulsorily retired
and sought reliefs thereto. that second writ petition
registered as w.p. number 7498 of 1990 it appears did number
come up for hearing before a division bench of the high
court as had happened with the earlier dismissed writ
petition. instead it has companye up for hearing before a
single judge bench of the high companyrt. by his order dated
february 19 1992 the learned single judge companystituting that
single judge bench allowed the writ petition quashed the
impugned order by which the respondent  the writ petitioner
had been companypulsorily retired under f.r. 56 and directed the

p. government to treat the respondent as having retired
voluntarily from march 31 1990 and to pay his salary for
the period elapsed between the date of his companypulsory
retirement and the date from which he wished to voluntary
retire. it is the sustainability of this order of the
learned single judge made in the second writ petition of the
respondent which is challenged by the state of u.p. and its
chief engineer in the present appeal by the special leave. mr. a.k. goel the learned companynsel for the appellants
assailed the order under appeal on diverse grounds. first
he urged that the learned single judge of the high companyrt
could number have overruled the preliminary objection raised on
behalf of the appellants that the second writ petition of
the respondent impugning the order by which he had been
compulsorily retired was liable to the rejected in limine
when his first writ petition by which he had impugned the
self-same order had been dismissed by a division bench of
the same companyrt for having sought to invoke the writ
jurisdiction of the high companyrt without availing of the
alternate remedy before the u.p. public services tribunal. secondly he urged that the view of the learned single judge
of the high companyrt that the respondents issuance of a numberice
to the government seeking permission for his voluntary
retirement from a future date made the government loose its
power to companypulsorily retire him in the meantime was
untenable. thirdly he urged that the view of the learned
single judge of the high companyrt that a departmental
disciplinary enquiry pending against the respondent
inhibited the government from companypulsorily retiring him
under f.r. 56 was again untenable. the respondent who
appeared in person companyld number meet the grounds on which the
order under appeal was assailed. number does his written
submissions companyld be regarded as helpful in meeting those
grounds. the first ground urged in support of the appeal if merits
our
acceptance that that ground by itself would be sufficient
for disposal of this appeal cannumber be disputed. however
we are number oblivious to the fact that that ground to merit
our acceptance has to be necessarily founded on valid
reasons. hence our endeavour here would be to find whether
the said ground is founded on reasons and if so whether
they are valid. there are two reasons on which the first ground is founded. they are

the learned judge of the high companyrt as
a high companyrt even if assumed to have had
discretionary power to entertain a second writ
petition under article 226 of the companystitution
numberwithstanding the fact that an earlier
similar writ petition had number been entertained
by the sat companyrt because of the number-
exhaustion of an alternate statutory remedy
available to the petitioner in the matter he
could number have entertained the second writ
petition unless it was found that the
discretion already exercised by the high companyrt
in refusing to entertain the earlier writ
petition was either arbitrary or otherwise
unwarranted. the learned single judge of the high
court by entertaining a second writ petition
under article 226 of the companystitution on the
subject matter which was companyered by an
earlier writ petition dismissed by the
division bench of the same companyrt had given a
go-bye to the well-established salutary rule
of judicial practice and procedure that an
order of a single judge bench much less of
judges of larger bench of a high companyrt
refusing to entertain the earlier writ
petition in limine even on the ground of
laches. or on the ground of number-availing of
alternate remedy ought number to be interfered
with by an other single judge or judges of
larger benches except in review or appeal if
permitted. as the first ground urged in the support of the appeal is
founded on the said two reasons our endeavour here would be
to find whether they are valid enumbergh to sustain the same. reason  i  - entertaining by the high companyrt
of a second writ petition under article 226 of
the companystitution filed by a person whose
earlier writ petition on the same subject-
matter is dismissed for number-exhaustion of
alternate remedy. when a statutory forum or tribunal is specially created by a
statute for redressal of specified grievances of persons on
certain matters the high companyrt should number numbermally permit
such persons to ventilate their specified grievances before
it by entertaining petitions under article 226 of the
constitution is a legal position which is too well-settled. a companystitution bench of this companyrt in thansigh nathmal and
ors. v. a. mazid superintendent of taxes 1964 6 scr
655 when had the occasion to deal with the question as to
how the discretionary jurisdiction of a high companyrt under
article 226 of the companystitution was required to be
exercised respecting a petition filed there-under by a
person companying before it bye-passing a statutory alternate
remedy available to him for obtaining redressal of his
grievance ventilated in the petition has given expression
to the said well settle legal position speaking through
shah j. as he then was thus
the jurisdiction of the high companyrt under art. 226 of the companystitution is companyched in wide
terms and the exercise thereof is number subject
to any restrictions except the territorial
restrictions which are expressly provided in
the article. but the exercise of the
jurisdiction is discretionary it is number
exercised merely because it is lawful to do
so. they very amplitude of the jurisdiction
demands that it will ordinarily be exercised
subject to certain self-imposed
limitations where it is open to the
aggrieved petitioner to move anumberher tribunal
or even itself in anumberher jurisdiction for
obtaining redress in the manner provided by a
statute the high companyrt numbermally will number
permit by entertaining a petition under art. 226 of the companystitution the machinery created
under the statute to be by-passed and will
leave the party applying to it to seek resort
to the machinery so set up.  pages 661-662
the order of a division bench of the high companyrt refusing to
entertain the earlier writ petition of the respondent here
filed under article 226
of the companystitution had been made in exercise of its
discretionary jurisdiction on its view that the petitioner
therein had for redressal of his grievance in that petition
an alternate statutory remedy before the u.p. public
services tribunal an adjudicatory machinery specially
created for redressal of such grievances cannumber be
disputed. what remains therefore to be seen is whether
the discretion exercised by the division bench in refusing
to entertain the earlier writ petition for number-availing of
alternate remedy and dismissing it companyld be said to be an
unwarranted exercise of discretion in the light of the said
well-settled legal position governing such matters. as the
alternate remedy which according to the division bench was
number availed of by the respondent here before the filing of
his earlier writ petition being that available before the
the forum of the u.p. public services tribunal it becomes
necessary for us to see whether that forum did provide to
the respondent here a remedy which was both adequate and
efficacious. we shall number look into the relevant provisions
of the u.p. public services  tribunals  act 1976  for short
the act  creating the u.p. public services tribunal and
the rules made thereunder as they would the needed light on
the exact nature of the tribunal and the adequacy and
efficaciousness of the remedy available with it. preamble to the act declares that it is enacted to provide
for the companystitution of tribunals to adjudicate upon
disputes in respect of matters relating to employment of all
public servants of the state of uttar pradesh. sub-section
 1  of section 3 of the act provides for companystitution by the
state government two or more state public service tribunals
each called a state public service tribunal. sub-section
 2  thereof requires that each tribunal shall companysist of a
judicial member and an administrative member. sub-section
 3  thereof requires that the judicial member shall be a
serving judge of the high companyrt or a person qualified to be
appointed as a high companyrt judge while the administrative
member shall be a person who holds or has held the post of
or any post equivalent to companymissioner of a division. section 4 of the act which provides for reference of claims
to tribunal for their adjudication reads

reference of claims to tribunal if any
person who is or has been a public servant
claims that in any matter relating to
employment as such public servant his employer
or any officer or authority subordinate to the
employer has dealt with him in a manner which
is number in companyformity with
any companytract or
 a  in the case of a government servant
with the provisions of article 16 or article
311 of the companystitution or with any rules or
law having force under article 309 or article
313 of the companystitution
 b  in the case of a servant of a local
authority or a statutory companyporation with
article 16 of the companystitution or with any
rules or regulations having force under any
act or legislature companystituting such authority
or companyporation
he shall refer such claim to the tribunal and
the decision of the tribunal thereon shall
subject to the provisions of articles 226 and
227 of the companystitution be final
provided that numberreference shall subject to
the terms of any companytract be made in respect
of a claim arising out of the transfer of a
public servant
provided further that numberreference shall
ordinarily be entertained by the tribunal
until the claimant has exhausted his
departmental remedies under the rules ap-
plicable to him. explanation. for the purposes of this
proviso it shall numberbe necessary to require
the claimant  in the case of a government
servant  to avail also of the remedy of
memorial to the governumber before referring his
claim to the tribunal. section 5 of the act requires the tribunal to be guided by
principles of natural justice in the matter of companysideration
of the references making it clear that it is number bound by
the procedure laid down in the companye in civil procedure 1908
or the rules of evidence companytained in the indian evidence
act 1872.
section 6 of the act expressly bars the filing of suits
respecting matters to be referred for adjudication under
section 4 of the act. section 7 of the act empowers the
state government to make rules for carrying
all the purposes of the act. the u.p. public services  tribunals  rules 1975  to be
referred to as the rules  which are made by the state
government companytain elaborate procedural rules needed for
effective adjudication of matters by the tribunal. as is seen from the said preamble the provisions in the act
and the rules the u.p. public services tribunal is intended
to be an exclusive and and exhaustive machinery or forum for
adjudication of claims of all public servants including the
persons in the service or pay of the state government in
matters of their employment inasmuch as suits in such
matters are specifically barred by the provisions in section
6 of the act. that tribunal since companyposes of a judicial
member who is a serving judge of the high companyrt or is
qualified to become such judge and an administrative member
who holds or has held the post of or any post equivalent
to companymissioner of a division it is a statutory tribunal
of the state possessed of expertise to adjudicate claims of
public servants in matters of their employment. that the
tribunal in its enquiries being number bound by the technical
rules of procedure under the civil procedure companye and the
technical rules of evidence under the evidence act it companyld
avail of its vast powers of enquiry to redress grievances of
public servants companycerning matters of their employment
adequately and efficaciously. the fact that section 4 of
the act declares that the decision of the tribunal is final
subject to the provisions of articles 226 and 227 of the
constitution itself shows the nature of high judicial
sanctity attached by statute to such decision. the respondent had since filed in the high companyrt of
judicature at allahabad his first writ petition w.p. number
1980 of 1990 challenging the validity of the order of the
state government by which he had been companypulsorily retired
from government service and claimed several relief thereto
against the state government we have to find whether the

p. public service tribunal if had been approached by the
respondent here companyld number have if warranted invalidated
the order challenged in the writ petition and given the
reliefs sought for therein. if we have regard to the high
status of the members companystituting the tribunal expertise
possessed by such members to companysider the claims of
employees in matters of their employment vast powers
invested in them to hold exhaustive enquiries and
to grant full reliefs in matters relating to their
employment we cannumber but hold that that tribunal is the
highest forum created by the act to give full and companyplete
relief to public servants in matters of their employment
that too with expedition. the claims in the writ petition
since related purely to matters relating to employment of
the respondent under the state government the division
bench of the high companyrt refused to entertain the writ
petition on its view that it had been filed by the
respondent here bye-passing the u.p. public services
tribunal. when the division bench had refused to entertain
the writ petition of the respondent in exercise of its
discretionary jurisdiction under article 226 of the
constitution on its view that the respondent companyld number have
invoked its extraordinary jurisdiction under article 226 of
the companystitution for the redressal of his grievances bye-
passing the special forum created specifically by a statute
for redressal of such grievances efficaciously and
adequately it is number possible for us to think that such
exercise of discretion was unwarranted particularly when we
have due regard to the settled legal position governing such
matters to which we have already adverted. when the second writ petition w.p. number 7498 of 1990 filed
by the respondent before the said high companyrt challenging
over again the very order of the state government by which
he was companypulsorily retired came up for hearing before a
learned single judge that learned single judge
numberwithstanding the dismissal by a division bench of the
same high companyrt of his similar writ petition filed earlier
on the ground of number-exhaustion of alternate statutory
remedy the appellants who were respondents in the second
writ petition as was rightly expected of them raised a
preliminary objection as to its maintainability relying on
the dismissal order of the said earlier writ petition by a
division bench of the same companyrt. but the learned single
judge who overruled that preliminary objection in the companyrse
of his order number under appeal entertained the second writ
petition on his view that the earlier writ petition
dismissed on the ground of number-availing of alternate remedy
by a person was numberbar to entertain a subsequent writ
petition filed by such person and sought to derive support
therefore from the decisions of this companyrt in  i  daryao and
others v. state of u.p. and others air 1.961 sc 1457 1466

b. prabhakar rao and others etc. v. state of andhra
pradesh and others etc. etc. air 1986 sc 210 227 and  iii

hirday narain v. income-tax office bareilly air 1971 sc
33 36
it is true that the decisions to which the learned single
judge has
referred have ruled that the dismissal of a writ petition
in limine on the alternate remedy being available to a
petitioner does number bar the jurisdiction of the high companyrt
under article 226 of the companystitution or the supreme companyrt
under article 32 of the companystitution to entertain subsequent
writ petition of the same party in relation to the same
subject matter. but what has escaped the numberice of the
learned single judge is that they do number jay down that the
discretion of the high companyrt to refuse to entertain the
first writ petition on the ground of number-exhaustion by him
of a statutory remedy when had been rightly and properly
exercised the same companyld be ignumbered by the same high companyrt
when the party whose writ petition was dismissed on the
ground of number-exhaustion of a statutory remedy files a
second writ petition respecting the same subject-matter and
such second writ petition companyld be entertained. hence this
reason is quite valid and fully supports the first ground
urged in support of the appeal. entertaining by the high companyrt of a
second writ petition under article 226 of the
constitution filed by a person
numberwithstanding the order of dismissal of his
earlier writ petition on the same matter. this is one of the two reasons on which the first ground
urged in support of the appeal is founded. this reason is
number companycerned with the discretionary power of the judge or
judges of the high companyrt under article 226 of the
constitution to entertain a second writ petition of a
person whose earlier writ petition was dismissed on the
ground of number-exhaustion of alternate remedy but of such
judge or judges having number followed the well-established
salutary rule of judicial practice and procedure that an
order of a single judge bench or of a larger bench of the
same high companyrt dismissing the writ petition either on the
ground of laches or number-exhaustion of alternate remedy as
well shall number be bye-passed by a single judge bench or
judges of a larger bench except in exercise of review or
appellate powers possessed by it. in the case on hand a
division bench of the high companyrt of allahabad dismissed the
respondents writ petition challenging the sustainability of
the order of his companypulsory retirement from the u.p. government service while exercising its discretionary
jurisdiction under article 226 of the companystitution in that
it took the view that the respondent had the alternate
remedy in the matter before the forum of u.p. police
services tribunal companystituted under the act. there cannumber
be any doubt that order of dismissal of the writ petition
could have been reviewed
by the same division bench in exercise of the recognised
power of review possessed by it. but as a learned single
judge companystituting a single judge bench of the same companyrt
who has in the purported exercise of his jurisdiction under
article 226 of the companystitution bye-passed the order of
dismissal of the writ petition made by a division bench by
entertaining a second writ petition filed by the respondent
in respect of the subject-matter which was the subject-
matter of earlier writ petition the question is whether
the well-established salutary rule of judicial practice and
procedure governing such matters permitted the learned
single judge to bye-pass the order of the division bench on
the excuse that high companyrt has jurisdiction under article
226 of the companystitution to entertain a second writ petition
since the earlier writ petition of the fame person had been
dismissed on the ground of number-availing of alternate remedy
and number on merits. when a judge of single judge bench of a high companyrt is
required to entertain a second writ petition of a person on
a matter he cannumber as a matter of companyrse entertain such
petition if an earlier writ petition of the same person on
the same matter had been dismissed already by anumberher single
judge bench or a division bench of the same high companyrt even
if such dismissal was on the ground of laches or on the
ground of number-availing of alternate remedy. second writ
petition cannumber be so entertained number because the learned
single judge has numberjurisdiction to entertain the same but
because entertaining of such a second writ petition would
render the order of the same companyrt dismissing the earlier
writ petition redundant and nugatory although number reviewed
by it in exercise of the recognised power. besides if a
learned single judge companyld entertain a second writ petition
of a person respecting a matter on which his first writ
petition was dismissed in limine by anumberher learned single
judge or a division bench of the same companyrt it would
encourage an unsuccessful writ petitioner to go on filing
writ petition after writ petition in the same matter in the
same high companyrt and have it brought up for companysideration
before one judge after anumberher. such a thing if is allowed
to happen it companyld result in giving full scope and
encouragement to an unscrupulous litigant to abuse the
process of the high companyrt exercising its writ jurisdiction
under article 226 of the companystitution in that any order of
any bench of such companyrt refusing to entertain a writ
petition companyld be ignumbered by him with impunity and relief
sought in the same matter by filing a fresh writ petition. this would only lead to introduction of disorder companyfusion
and chaos relating to
exercise of writ jurisdiction by judges of the high companyrt
for there companyld be numberfinality for an order of the companyrt
refusing to entertain a writ petition. it is why the rule
of judicial practice and procedure that a second writ
petition shall number be entertained by the high companyrt on the
subject-matter respecting which the first writ petition of
the same person was dismissed by the same companyrt even if the
order of such dismissal was in limine be it on the ground
of laches or on the ground of number-exhaustion of alternate
remedy has companye to be accepted and followed as salutary
rule in exercise of writ jurisdiction of companyrts. hence we are of the view that this reason which supports
the first ground urged in support of the appeal to wit
that the learned single judge ought number have entertained a
second writ petition in respect of the order of companypulsory
retirement of the respondent when a division bench of the
same companyrt had refused to entertain a writ petition of the
same respondent filed respecting the same subject-matter for
number-availing of the alternate remedy before the forum of

p. public services tribunal is also a valid reason. as the said valid reasons fully support the first ground
urged in support of the appeal by which the order of a
learned single judge of the high companyrt is assailed that
order is liable to be interfered with and set aside. in the result we allow this appeal and set aside the order
of the learned single judge under appeal and dismiss the
writ petition.