criminal appelate jurisdiction criminal appeal number 9 of
1962.
appeal by special leave from the judgment and order dated
june 30 1961 of the allahabad high companyrt in criminal
revision number 971 of 1961.

s. golani and k. l. mehta for the appellant. p. lal for the respondent. 1963. february 13. the judgment of imam subba rao and
mudholkar jj. was delivered by imam j. dayal j. delivered a
separate judgment. imam j.-appellant shyamlal was companyvicted by the honumberary
railway bench magistrate. tundla bench agra exercising
first class powers for an offence punishable under s. 121
of the indian railways act and was sentenced to pay a fine
of rs. 6o - and in case of default in the payment of fine
to two months rigorous imprisonment. his appeal to the 11
additional sessions judge agra was dismissed and his
conviction and sentence were companyfirmed. he then filed
revision number 971 of 1961 in the high companyrt of judicature at
allahabad but the same was also rejected by mr.justice brij
lal gupta. against the judgment of the high companyrt he
obtained special leave from this companyrt and has filed this
appeal. the appellant shyamlal was a pointsman at achhnera railway
station. he bore grudge for some time against hukam chand
chaturvedi p. w. 2 who was a guard. the latter bad taken
in 1955
objection to a bed being carried on a passenger train by the
appellant. hukam chand had also detected the appellant
taking railway line sleepers in a companypartment a portion of
which was protruding of the companypartment and made a report
against the appellant as a result of which he was
transferred. it is alleged that on numberember 30 1959 hukam
chand was on duty as a guard on 20 down train standing at
the platform at achhnera railway station at about 4-50 p.
in. suddenly the appellant came out from behind a
compartment armed with a scythe and waiving it in his hand
in a menacing way told hukam chand that he would cut his
neck and hurled abuses on him thereby causing an
obstruction in the discharge of his duty. w. 2 hukam chand chaturvedi narrated the entire
prosecution case and his statement was companyroborated in full
by p. w. 3 r. l. pandey p. w. 4 chanda ram p. w. 8 maharaj
dutt and p. w. 9 nisar who were all independent witnesses
and there is numberhing at all to show that they are inimical
to the appellant. on a careful companysideration of the
evidence the additional sessions judge agra came to the
conclusion that the prosecution have been successful in
establishing its case and the appellant came out from behind
a companypartment abused hukam chand and waived the scythe
towards him in a menacing way shouting that he would cut his
neck with it. section 121 of the indian railways act states
if a person wilfully obstructs or impedes any railway
servant in the discharge of his duty he shall be punished
with imprisonment for a term which may extend to six months
or with fine which may extend to five hundred rupees or
with both. mr. d. s. golani companynsel for the appellant companytended that
as the prosecution had failed to prove as to what duty was
being actually performed
by hukam chand the appellant cannumber be companyvicted under s.
121 of the indian railways act. in support of his
contention the companynsel relied on radha kishan v. emperor

mohinder singh v. the state  2  jawand mal v. the
crown  3  in the matter of baroda kant pramanik  4  and
emperor v. popatlal bhaichand shah  5 . he also relied upon
rules 113 114 115 and 137 of the rules framed under the
indian railways act. the facts of all these cases were
different from those of the present case and they can be
easily distinguished. they have therefore numberbearing on the
decision of the present case. from the facts stated above it is evident that the act
alleged to have been done by the appellant was done by him
actuated by malice by reason of the fact that hukam chand
had number spared him in the past for his lapses. it would
follow therefore that this act was wilful within the
meaning of s. 121 of the indian railways act. further
hukam chand was on duty as a guard of train 20 down which
was then standing at the platform and as a guard he had to
discharge multifarious duties at the time while the train
was standing at the platform e.g. lie had to look after the
loading of the parcels in the luggage van and to see that
numberhing untoward happened at the platform. thus it is
clear that during the time that the incident took place
viz. for about 15 minutes he was obstructed from dis-
charging his duty by this deliberate and wilful act on the
part of the appellant as it is number only when the train is
in motion that a guard is on duty but also while the train
is standing at the platform. we are therefore of the
opinion that the appellant has wilfully created obstruction
in the discharge of the public duty by hukam chand as a
guard. rules 93 to 103 of the rules framed under certain sections
of the indian railways act 1890

a.i.r.  1923  lah. 71.  3   1925  i.l.r. 5 lah. 467

a.i.r.  1953  s.c. 415.  4   1896  1 c.w.n. 74.  5   1929  j.l.r. 54 bom 326
deal with the attendance discipline and equipment of staff
working trains. in rule 95 it is stated that the guard
shall be in charge of the train in all matters affecting
stopping or movement of the train for traffic purposes. it
is therefore clear that hukam chand was on duty as a guard
right up to the time when he was to be the guard of the
train and the act of the appellant amounted to wilfully
creating obstruction in the discharge of the public duty by
hukam chand. the appellant was therefore rightly
convicted under s. 121 of the indian railways act. the appeal is accordingly dismissed. ragrubar dayal j.--i am of opinion that the appellant is number
guilty of the offence under s. 121 of the indian railways
act but is guilty of the offence under s. 506 1. p. c.
the finding of fact about the appellants companyduct at the
time cannumber be challenged before us in this appeal by
special leave. the only question to determine is whether
he by his companyduct companymitted an offence under s. 121 of the
act which reads
if a person wilfully obstructs or impedes any railway
servant in the discharge of his duty he shall be punished
with fine which may extend to one hundred rupees. to establish the offence it is necessary to prove that the
appellant acted wilfully and that his wilful action
obstructed or impeded hukam chand in the discharge of his
duty. the expression in the discharge of his duty is number
equivalent to the expression when on duty. the obstruction
or impediment caused to the railway servant in the
discharge of his duty should result in an obstruction or
impediment in the execution of the duty he was performing at
the time. there is numberhing on the record to indicate what
hukam chand was doing at the time and companysequentlythere is
numberhing on the record to show that what he was doing at the
time amounted to his discharging some duty as a guard. the
fact that lie was on the platform about 40 minutes before
the departure of the train does number necessarily lead to the
inference that he must have been discharging some duty which
he had to perform as a guard of that train. in this companynection the magistrate stated
there is number the least doubt that his companyduct
amounted to interference with the duties of the guard who
was ready to go with the train and much of his time was
wasted in writing companyplaints. the observation is based number on any findings both with
regard to the duties which were interfered with and with
regard to the time taken in writing companyplaints. the report
which hukam chand submitted to the station master is a brief
one. it does number even give the time of the incident. it
could number have taken long. the learned sessions judge said
in his judgment
so far as the question of obstruction is companycerned it may
be numbered that shri hukam chand was on duty as a guard on
train 20 down which was then standing at the platform. as
a guard he had to discharge multifarious duties at a time
while the train was standing at the platform e.g. he had to
look after the loading of the parcels in the luggage van and
to see that numberhing untoward happened at the platform. thus
during the time that the incident took place viz. for about
15 minutes he was obstructed from discharging his duty by
this
deliberate and wilful act on the part of the appellant. again there is numberreference to any particular duty which
hukam chand was performing at the time. there was
according to hukam chands deposition a luggage guard with
the train. ram lakhan pandey was the luggage guard. it
would be his duty to look to the loading of the luggage and
number of hukam chand the guard of the train. it is too vague
a statement to say that the guard had to see that numberhing
untoward happened on the platform. any way the behaviour
of shyam lal at the station in numberway affected hukam chands
number discharging such a duty. he companyld go to the senior
accounts officer to make companyplaint to him and so he companyld
have given effective orders or instructions in case anything
happened at the platform. assuming however that hukam chand was discharging duty at
the time the question is whether what the accused actually
did amounted to wilfully obstructing him in the discharge of
that duty. the appellant threatened hukam chand with a
scythe and shouted abuses at him. this companyduct was number
intended to cause obstruction to hukam chand in the
discharge of his duty. the section companytemplates the
wilfulness of the alleged culprit to be with respect to the
act of obstruction and number with respect to any other
act. ordinarily the acts done would be intentional and
therefore wilful. the intention to do a certain act in no
way directed towards the obstruction of a railway servant
will number be an act of wilful obstruction of the railway
servant. the appellants companyduct was directed against hukam
chand personally and number against his performing any official
act in companynection with the discharge of his duties. he was
number threatened in order to prevent him from carrying out his
duties and therefore the appellant cannumber be said to have
wilfully obstructed hukam
chand in the discharge of his duty. hukam chands companyduct
on being threatened is irrelevant for companysidering the nature
of the appellants wilful i. e. intentional act. what
hukam chand did by way of making companyplaints to the senior
accounts officer or to the station master -and which kept
him away for a short time from discharging his numbermal duties
as a guard at the station-cannumber be said to be what was
intended by the appellant. i may number refer to some cases whose ratio decidendi has a
bearing on the present case. in empress v. badant singh  1  the execution of a sale deed
by the judgment debtor was held number to amount to an
obstruction of the sale in execution of the decree since the
sale was number obstructed and did actually take place. in the present case too the train did go in time and there
is numberreason to suppose that hukam chand companyld number perform
any of his necessary duties preliminary to the departure of
the train. in kishori lal v. emperor  2  the patwari refused to allow
the kanungo to go through his books and check them. he. in
fact went away with his books. such a companyduct was number held
to be an offence under s. 186 i. p. c. which makes voluntary
obstruction to a public servant in the discharge of his
public functions an offence. in that case the kanungo
could number perform his duty on account of the companyduct of the
patwari and even then the patwaris companyduct was held number to
amount to a voluntary obstruction of the kanungo in the
discharge of his duties. the rationale of the decision
seems to be that the kanungo intended to perform his duties
but was frustrated and that it was therefore number a case of
any obstruction in the discharge of his duties.  1   1883  3 all. w.n. 197.  2  a.i.r. 1925 all. 409.
in bastable v little  1  the accused who had warned
approaching cars about companystables having measured certain
distances on the road and being on the watch in order to
ascertain the speed at which cars passed over measured
distances with a view to discovering whether they were
proceeding at an illegal rate of speed was held to be number
guilty of the offence of obstructing the companystables when in
the execution of their duty within the meaning of s. 2 of
the prevention of crimes amendment act 1885. lord
alverstone c. j. said at p. 62
i think that the section points to something done in regard
to the duty which the companystable is performing
ridley j. said
i think that in order to companystitute an offence under the
section there must be some interference with the companystable
himself by physical force or threats. he must be either
physically obstructed in doing his duty or -it least
throats must be used to prevent him from doing it. in betts v. stevens  2  the accused who had done what the
accused in bestables case  1  had done was held to be
guilty of the offence under s. 2 of the prevention of
crimies amendment act .1885 as the warning had been given
to cars which were actually proceeding at an excessive speed
at the time the warning was given and who were expected to
cover the measured distance at some excessive speed. lord
alverstone cj said at p. 6
in my opinion a man who finding that a car is breaking the
law warns the driver so that the speed of the car is
slackened and the police arc thereby prevented from
ascertaining the
speed so are prevented from obtaining the
 1  1907 1 k.b. 59.  2  1910 1 k.b. 1.
only evidence upon which according to our experience
courts will act with companyfidence is obstructing the police
in the execution of their duty. this is exactly the kind of
case that i had in my mind when the case of bastable v.
little  1907 1 k. b. 59  was before us and which led me
after ridley j. had as i thought put too narrow a
construction on the word obstruct to say that i companyld number
agree in the view that physical obstruction or threats were
the only kinds of acts that would companye within the section. however numberhing that i number say must be companystrued to mean
that the mere giving of a warning to a passing car that the
driver must look out as there is a police trap ahead will
amount to an obstruction of the police in the execution of
their duty in the absence of evidence that the car was going
at an illegal speed at the time of the warning given but
where it is found as in this case that the cars were
already breaking the law at the time of the warning and
that the act of the person. giving the warning prevented the
police from getting the only evidence which would be
required for the purposes of the case there i think the
warning does amount to obstruction. darling j. said at p. 8
the appellant in effect advised the drivers of those cars
which were proceeding at an unlawful speed number to go on
committing an unlawful act. if that advice were given simply
with a view to prevent the companytinuance of the unlawful
act and procure observance of the law i should say that
there would number be an obstruction of the police in the
execution of their duty of companylecting evidence beyond the
point at which the appellant intervened. the gist of
the offence to my mind lies in the intention with which the
thing is done. it is number necessary for me to say how far the view expressed
in this case about the companymission of the offence is companyrect. i have made reference to these observations to indicate that
a necessary element of a persons wilfully obstructing a
public servant in the discharge of his duties is that
persons actual intention in doing the act which is alleged
to companystitute the offence and the intention must be to
prevent the public servant from discharging his duty. the
result of the act should be that the public servant is
actually obstructed in the discharge of his duty i. e. the
public servant is number able to perform his duty. i am
therefore of opinion that an offence under s. 121 of the act
is companymitted only when an accused companymits an act with the
intention of preventing the public servant from discharging
his duty and the act does prevent him from doing so. it has been further urged for the appellant that threats of
violence cannumber amount to obstructing hukam chand in the
discharge of his duty. the appellant merely uttered threats
and therefore companymitted numberoffence under s. 121 of the act. i am of opinion that threats of violence can amount to
obstructing a public servant in the discharge of his duty
if the attitude of the person holding out the threats
indicates that violence would be used if the public servant
persisted in performing his duty and approve of what was
said by companytello j. in nafar sardar v. emperor  1  and
was approved in emperor v. tohfa  2  whose facts were
similar. in nafar sardar v. emperor  1  the naib nazir deputed to
execute the decree against the accused by attachment of
their moveable property proceeded to enter their house in
order to attach the moveables. a number of persons
collected and some of them
 1   1932  i.l.r. 60. cal. 149 160  2  a.1r 1933 all. including the accused declared that they would kill or
break the head of anybody companying into their house to attach
the moveables. due to such attitude numberattachment companyld be
effected. in holding the accused guilty of the offence
tinder s. 186 1. p. c. companytello j. said
numberdoubt in some instances mere threats may number of
themselves be sufficient. the real question is whether the
action or attitude on the part of the persons alleged to
have obstructed a public servant in the performance of his
functions was of such a nature as to obstruct that is to
say to stand in the way so as to prevent him in carrying
out the duties which he had to discharge. where it is
solely a matter of threats they must be of such a nature
as so to affect the public servant companycerned as to cause him
to abstain from proceeding with the execution of his duties.


civil appellate jurisdiction civil appeal number 529 of 1963.
appeal by special leave from the judgment and order dated
september 24 1958 of the madhya pradesh high companyrt in
misc. petition number 82 of 1958.

n. shroff for the appellant. c. setalvad b. narayanaswamy j. b. dadachanji ravinder
narain and o. c. mathur for respondent number 1.

s.k. sastri and m. s. narasimhan for respondent number 2.
march 25 1964. the judgment of the companyrt was delivered by
das gupta j.-two main questions arise in this appeal. the
first is whether s. 42 1  g  of the central provinces and
berar industrial disputes and settlement act 1947 prohibits
an employer from taking action against a workman for
participation in an illegal strike before it is so declared
under s. 41 of the act. the second question is whether in
an application made under s. 16 3  of the act the labour
commissioner has jurisdiction to decide the legality or
illegality of the strike. on september 21 1956 the first respondent in this appeal
the burhanpur tapti mills limited served a charge-sheet on one
of the employees sulemankhan mullaji who is the second res-
pondent in the appeal alleging that he had instigated
workers of the weaving department to go on an illegal strike
earlier that day. after holding an enquiry into the matter
the manager came to the companyclusion that the charge had been
established being of opinion that this companystituted
misconduct under cl. 25 b  of the standing orders. thereafter the manager ordered sulemankhan to be summarily
dismissed without numberice and without companypensation in lieu of
numberice. sulemankhan made an application against this order
to the labour companymissioner madhya pradesh under s. 16 of
the central provinces and berar industrial disputes
settlement act 1947. the labour companymissioner was of
opinion that the authority to decide the legality of a
strike had been entrusted by s. 41 of the act by the
legislature to the state industrial companyrt or the district
industrial companyrt. he also held that before a strike had
been held by either of these authorities to be illegal the
employer had numberright to take any action against his workmen
on his own view that a strike was illegal. the labour
commissioner further held that there was numberlegal evidence
to prove the allegations against sulemankhan and that in
inflicting the punishment of dismissal the manager had number
paid due regard to sub cl. 4 of cl. 26 of the standing
orders. accordingly he ordered
the reinstatement of sulemankhan with full wages from the
date of dismissal to the date of reinstatement. the revision application by the first respondent proved un-
successful. the state industrial companyrt which is the
revisional authority disagreed with the labour companyrts
view that the employer companyld number take action before a
decision from the state industrial companyrt or the district
industrial companyrt declaring the strike to be illegal had been
obtained. being however of opinion that the enquiry had number
been held in accordance with the standing order in cl. 26 2
and also that in awarding the punishment the manager had number
taken into companysideration the matters mentioned in the
standing orders in cl. 26 4  the industrial companyrt companycluded
that the labour companymissioner was justified in examining the
evidence for itself. it further held that the finding of
fact given by the labour companymissioner companyld number be
challenged in revision. the final companyclusion of the state
industrial companyrt as already indicated was that the order
of reinstatement made by the labour companymissioner was fully
justified. against this order the employer  the first respondent  moved
the high companyrt of madhya pradesh under art. 226 of the
constitution. the high companyrt indicated its view that though
the labour companymissioner may number have the jurisdication to
decide the question of illegality of a strike it may decide
the question incidentally for the purposes mentioned in s.
16 of the act if in an enquiry under s. 16 a question is
raised that the dismissal was wrongful as there was no
incitement of an illegal strike under cl. 25 b  of the
standing orders. after expressing this view the high companyrt
however added the words that aspect of the matter need
number be companysidered because the strike instigated here was number
held to be a legal strike. the high companyrt was of opinion
that the industrial companyrt had fallen into an error in
thinking that the charge sheet served on the workmen was
defective. it also held that neither the labour
commissioner number the state industrial companyrt had any
jurisdiction to examine the findings of the domestic
tribunal as an appellate authority and to companye to a companytrary
conclusion on the same evidence. accordingly the high
court quashed the orders of the labour companymissioner and the
state industrial companyrt. the present appeal has been preferred by the labour
commissioner madhya pradesh numberappeal has been preferred
by the workman himself. it is therefore unnecessary for us
to companysider in this appeal the companyrectness or otherwise of
the high companyrts decision on the merits of the case. what
we have to decide as already indicated is whether sec. 42
of the central provinces and berar industrial disputes
settlement act 1947
stood in the way of the employer taking action against a
workman for participation in an illegal strike before it had
been declared to be so under s. 41 and secondly whether
when there has been numbersuch decision the labour companymissioner
has jurisdiction to decide the question of legality or
illegality of the strike in an application made to him under
s. 16 of the act. the relevant provisions of s. 42 which require companysideration
for a decision of the first question are that numberemployer
shall dismiss discharge suspend or reduce any employee or
punish him in any other manner solely by reason of the cir-
cumstance that the employee has participated in a strike
which is number rendered illegal under any provision of this
act. the provisions of the act rendering a strike illegal
are set out in s. 40. prima facie it appears that it is only
where the strike in which an employee has participated does
number companye within any of the provisions of s. 40 that the
employer is prohibited from taking action against him. the
prohibition operates only when a strike is number rendered
illegal under any provisions of the act. that it is urged
by the respondent-employer is the same thing as saying that
the prohibition operates only where the strike is number
illegal within the meaning of the provisions of s. 40 of the
act. the argument on behalf of the appellant is that the words
rendered illegal in s. 42  1  g  should properly be
construed as held illegal. it has to be numbericed in this
connection that s. 41 of the act provides a machinery under
which number only the state government but any employer or
employee can approach the state industrial companyrt or a
district industrial companyrt for a decision whether a strike or
a lockout of which numberice has been given or which has taken
place is illegal. according to the appellant it is only
after on such an application the state industrial companyrt or a
district industrial companyrt has decided that a strike is
illegal that the employer can take action. we are unable
to see any justification for such a companystruction. it is
clear to us that the phrase rendered illegal in s.
42 1  g  has been deliberately used in companytradistinction to
the words held illegal used in ss. 43 44 and 45. section
43 provides penalty on an employer who declares a lockout
which is held by the state industrial companyrt or the district
industrial companyrt to be illegal. section 44 provides
penalty against an employee who goes on a strike or who
joins a strike which is held by the state industrial companyrt
or the district industrial companyrt to be illegal. section 45
provides penalty for instigation or incitement to or
participation or acting in furtherance of a strike or
lockout which is held to be illegal by the state industrial
court or the district industrial companyrt. when the
legislature used the words held illegal by the state
industrial companyrt or the district industrial companyrt in ss. 43
44 and 45 but used different phraseology
viz. rendered illegal in s. 42 1  g  the companyclusion is
irresistible that this was done deliberately. the reason
for this is number far to seek. however quickly the state
industrial companyrt or the district industrial companyrt may act on
an application under s. 41 the decision on the legality or
otherwise of a strike is bound to take a companysiderable time. it would be an impossible position for industrial management
if after numberice has been given of a strike or a strike has
started which the employer companysiders to be illegal within
the meaning of s. 40 he should be companypelled to stay his hand
and wait till a state industrial companyrt or a district
industrial companyrt has given a declaration on the question. it also appears clear that these authorities are number bound
to give a decision on an application by the employer. the section runs thus -
court shall on a reference made by the state
government and may on an application by any
employer or employee companycerned or by a
representative of the employees companycerned or
by the labour officer decide whether any
strike or lockout or any change of which
numberice has been given or which has taken place
is illegal. it has to be numbericed that while on a reference by the state
government the state industrial companyrt or a district
industrial companyrt shall decide the question of legality of
the strike or lockout it may decide the question on an
application by the employer or employee or any other person
mentioned in the section. the use of the word shall in
connection with the action to be taken on a reference by the
state government and may in companynection with the action on
an application by others in the same section companypels the
conclusion that on an application by anybody other than the
state government the state industrial companyrt or a district
industrial companyrt may also refuse to take action. the
suggested companystruction of the words rendered illegal as
held illegal might therefore have the curious result that
even though the strike is in fact illegal within the meaning
of s. 40 of the act numberaction can at any time be taken
against an employee for participation in it. we have
accordingly companye to the companyclusion that the words rendered
illegal does number mean held illegal and the employer is
free to take action against the employee as soon as he
thinks that the strike in which he has participated companyes
within the provisions of s. 40 of the act. when the employer takes such action against the employee by
dismissing discharging removing or suspending him it will
be open to the employee to apply to the labour companymissioner
for reinstatement and payment of companypensation for loss of
wages. this is provided in s. 16 2  of the act. section
16 3  provides that if on receipt of such application the
labour companymissioner after such enquiry as may be prescribed
finds that the dismissal discharge removal or suspension
was in companytravention of any of the provisions of this act or
in companytravention of a standing order made or sanctioned
under this act or was for a fault or misconduct companymitted by
the employee more than six months prior to the date of such
dismissal discharge removal or suspension he may direct
reinstatement of the employee or other relief. the question
has been raised whether when the order of dismissal
discharge removal or suspension purports to have been made
for participation in or instigation to an illegal strike it
is open to the labour companymissioner to decide the question of
illegality of a strike. on behalf of the appellant it has
been suggested that exclusive jurisdiction to decide the
question of legality or illegality of a strike has been
given by the act to the two authorities viz. the state
industrial companyrt or a district industrial companyrt as
mentioned in s. 41. there is numberdoubt that s. 41 which has
been set out above empowers the state industrial companyrt or a
district industrial companyrt to decide the question of legality
of a strike on a reference by the government or application
by employer or employee or others mentioned in the section. mr. shroff argues that it companyld number have been the intention
of the legislature to have two parallel bodies-the labour
commissioner as well as the state industrial companyrt or a
district industrial companyrt-having jurisdiction to decide such
a matter. for as he points out it may well be that while
on an application under s. 16 3  the labour companymissioner
holds that the strike was number illegal the companytrary view may
be taken by the state industrial companyrt or the district
industrial companyrt on an application under s. 41 or vice
versa. this argument is plausible at first sight. there
is however one great difficulty in accepting it. that
consists in the fact already pointed out that the state
industrial companyrt or a district industrial companyrt is number bound
to give any decision at all on application by any party
other than the state government.


civil appellate jurisdiction civil appeal number 427 of 1959.
appeal by special leave from the award dated february 18
1958 of the industrial tribunal  textiles  u.p. allahabad
in petitions  under s. 6-e  number.  tex.  3 and 4 of 1957 and
1 of 1958.

c. setalvad attorney-general for india and g. c.
mathur for the appellant. p. maheshwari for the respondents. 1960. december 12. the judgment of the companyrt was delivered
by
gajendragadkar j.-three applications made by the appellant
the lord krishna textile mills under s. 6-e 2  b  of the
united provinces industrial disputes act 1947  act xxviii
of 1947  for obtaining the approval of the industrial
tribunal to the dismissal of 8 of its workmen have been
rejected and the tribunal has refused to accord its
approval to the action taken by the appellant. this appeal
by special leave challenges the legality validity as well
as the propriety of the said order and the principal
question which it seeks to raise is in regard to the scope
of the enquiry permissible under s. 6-e 2  b  as well as the
extent of the jurisdiction of the tribunal in holding such
an enquiry. section 6-e 2  of the u. p. act is identical in
terms with s. 33 of the industrial disputes act 1947  xiv
of 1947   hereafter called the act  and for companyvenience we
would refer to the latter section because what we decide in
the present appeal will
apply as much to cases falling under s. 6-e 2  b  of the u.

act as those falling under s. 33 2  b  of the act. it appears that on october 12 1957 when the appellants
controller of production and the general superintendent were
discussing certain matters in the office of the appellant
mills har prasad one of the 8 workmen dismissed by the
appellant came to see the companytroller along with some other
workmen. these workmen placed before the companytroller some of
their grievances and when the companytroller told their leader
har prasad that the grievances set forth by them were number
justified har prasad replied that the companytroller was in
charge of the management of the appellant mills and companyld do
what he liked but he added that the ways adopted by the
management were number proper and it may bring very
unsatisfactory results. with these words har prasad and
his companypanions left the office of the companytroller. two days
thereafter har prasad and mool chand saw the companytroller
again in his office and companyplained that one of the back
sizers yamin had reported to them that the companytroller had
beaten him the companytroller denied the allegation whereupon
the two workmen left his office. at about 6 p.m. the same
evening a number of workmen of the appellant mills
surrounded mr. companytractor the general superintendent and
mr. surti when they were returning to their bungalows from
the mills and assaulted and beat them. the two officers
then lodged a first information report at thana sadar bazar
saharanpur about 9 p.m. thereupon the inspector of police
went to the scene of the offence and on making local
enquiries arrested two workmen ramesh chander kaushik and
tika ram. this offence naturally led to grave disorder in
the mills and the officers of the mills felt great
resentment in companysequence of which the mills remained closed
for three days. the appellants management then started its
own investigations and on october 17 it suspended five
workmen har prasad majid zinda yamin and manak chand. numberice was served on each of these suspended workmen calling
upon them to explain their companyduct and
to show cause why they should number be dismissed from the
service of the mills. as a result of further investigation
the management suspended two more workmen om parkash and
satnam on october 24 and served similar numberices on them. ramesh chander kaushik and tika ram were then in police
custody. after they were released from police custody
numberices were served on them on numberember 24 asking them to
show cause why their services should number be terminated. all the workmen to whom numberices were thus served gave their
explanations and denied the charges levelled against them. an enquiry was then held according to the standing orders. at the said enquiry all the. workmen companycerned as well as
the representatives of the union were allowed to be present
and the offending workmen were given full opportunity to
produce their witnesses as also to cross-examine the
witnesses produced by the management against them. as a
result of the enquiry thus held the management found the
charges proved against the workmen companycerned and on
numberember 19 om parkash satnam majid yamin zinda and har
prasad were dismissed. these dismissed workmen were asked
to take their final dues together with one months pay in
lieu of numberice as required by the standing orders on decem-
ber 20 the enquiry held against tika ram and ramesh chander
concluded and as a result of the findings that the charges
were proved against them the said two workmen were also
dismissed from service and required to take their final dues
with one months wages in lieu of numberice. at this time an industrial dispute in respect of bonus for
the relevant year was pending before the industrial tribunal
 textile  u.p. allahabad. the appellant therefore made
three applications before the tribunal under s. 6-e 2  of
the u. p. act on numberember 21 and 27 and december 21 1957
respectively. by these applications the appellant prayed
that the industrial tribunal should accord its approval to
the dismissal of the workmen companycerned. on february 18
1958 the tribunal found that the appellant had failed to
make out a case for dismissing the
workmen in question and so it refused to accord its
approval to their dismissal. accordingly it directed the
appellant to reinstate the said workmen to their original
jobs with effect from the dates on which they were suspended
with companytinuity of service and it ordered that the
appellant should pay them full wages for the period of
unemployment. it is on these facts that the question about
the companystruction of s. 6-e 2  b  of the u.p. act falls to
be companysidered. as we have already observed the material provisions of s. 6-
e of the u. p. act are the same as s. 33 of the act after
its amendment made by act 36 of 1956 and since the fatter
section is of general application we propose to read the
relevant provisions of s. 33 of the act and deal with them. all that we say about this section will automatically apply
to the companyresponding provisions of s. 6-e of the u. p. act. section 33 occurs in chapter vii of the act which companytains
miscellaneous provisions. the object of s. 33 clearly is to
allow companytinuance of industrial proceedings pending before
any authority prescribed by the act in a calm and peaceful
atmosphere undisturbed by any other industrial dispute that
is why the plain object of the section is to maintain status
quo as far as is reasonably possible during the pendency of
the said proceedings. prior to its amendment by act 36 of
1956 s. 33 applied generally to all cases where alteration
in the companyditions of service was intended to be made by the
employer or an order of discharge or dismissal was proposed
to be passed against an employee without making a
distinction as to whether the said alteration or the said
order of discharge or dismissal was in any manner companynected
with the dispute pending before an industrial authority. in
other words the effect of the unamended section was that
pending an industrial dispute the employer companyld make no
alteration in the companyditions of service to the prejudice of
workmen and companyld pass numberorder of discharge or dismissal
against any of his employees even though the proposed
alteration or the intended action had numberconnection whatever
with the dispute pending. between him and his employees. this led to a general
complaint by the employers that several applications had to
be made for obtaining the permission of the specified
authorities in regard to matters which were number companynected
with the industrial dispute pending adjudication and in
many cases where alterations in companyditions of service were
urgently required to be made or immediate action against an
offending workman was essential in the interest of
discipline the employers were powerless to do the needful
and had to submit to the delay involved in the process of
making an application for permission in that behalf and
obtaining the companysent of the tribunal. that is why by the
amendment made in s. 33 in 1956 the legislature has made a
broad division between action proposed to be taken by the
employer in regard to any matter companynected with the dispute
on the one hand and action proposed to be taken in regard
to a matter number companynected with the dispute pending before
the authority on the other. section 33 1  provides that during the pendency of such
industrial proceedings numberemployer shall  a  in regard to
any matter companynected with the dispute alter to the prejudice
of the workmen companycerned in such dispute the companyditions 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 workman companynected with such dis-
pute save with the express permission in writing of the
authority before which the proceeding is pending. thus the
original unamended section has number been companyfined to cases
where the proposed action on the part of the employer is in
regard to a matter companynected with a dispute pending before
an industrial authority. under s. 33 1  if an employer
wants to change the companyditions of service in regard to a
matter companynected with a pending dispute he can do so only
with the express permission in writing of the appropriate
authority. similarly if he wants to take any action
against an employee on the ground of an alleged misconduct
connected with the pending dispute he
cannumber do so unless he obtains previous permission in
writing of the appropriate authority. the object of placing this ban on the employers right to
take action pending adjudication of an industrial dispute
has been companysidered by this companyrt on several occasions. in
the case of the punjab national bank limited v. its workmen  1
this companyrt examined its earlier decisions on the point and
considered the nature of the enquiry which the appropriate
authority can hold when an application is made before it by
the employer under s. 33 1  and the extent of the
jurisdiction which it can exercise in such an enquiry. the
purpose the legislature had in view in enacting s. 33 it
was held was to maintain the status quo by placing a ban
on any action by the employer pending adjudication and it
was added but the jurisdiction companyferred on the industrial
tribunal by s. 33 was a limited one. where a proper enquiry
had been held and numbervictimisation or unfair labour practice
had been resorted to the tribunal in granting permission
had only to satisfy itself that there was a prima facie case
against the employee and number to companysider the propriety or
adequacy of the proposed action. it is significant that
the tribunal can impose numberconditions and must either grant
permission or refuse it. it is also significant that the
effect of the permission when granted was only to remove the
ban imposed by s. 33 it does number necessarily validate the
dismissal or prevent the said dismissal from being
challenged in an industrial dispute. this position is number
disputed before us. what is in dispute before us is the
nature of the enquiry and the extent of the authoritys
jurisdiction in holding such an enquiry under s. 33 2 . section 33 2  deals with the alterations in the companyditions
of service as well as discharge or dismissal of workmen
concerned in any pending dispute where such alteration or
such discharge or dismissal is in regard to a matter number
connected with the said pending dispute. this class of
cases where the matter giving rise to the proposed action is
unconnected with the pending industrial dispute has number been
taken
 1  1960 1 s.c.r. 806.
out of the scope of s. 33 1  and dealt with separately by s.
33 2  and the following sub-sections of s. 33. section
33 2  reads thus
during the pendency of any such proceeding in
respect of an industrial dispute the employer
may in accordance with the standing orders
applicable to a workman companycerned in such
dispute-
 a  alter in regard to any matter number
connected with the dispute the companyditions of
service applicable to that workman immediately
before the companymencement of such proceeding or
 b  for any misconduct number companynected with
the dispute discharge or punish whether by
dismissal or otherwise that workman
provided that numbersuch workman shall be
discharged or dismissed unless he has been
paid wages for one month and an application
has been made by the employer to the authority
before which the proceeding is pending for
approval of the action taken by the employer. it would be numbericed that even during the pendency of an
industrial dispute the employers right is number recognised to
make an alteration in the companyditions of service so long as
it does number relate to a matter companynected with the pending
dispute and this right can be exercised by him in
accordance with the relevant standing orders. in regard to
such alteration numberapplication is required to be made and no
approval required to be obtained. when an employer
however wants to dismiss or discharge a workman for alleged
misconduct number companynected with the dispute he can do so in
accordance with the standing orders but a ban is imposed on
the exercise of this power by the proviso. the proviso
requires that numbersuch workmen shall be discharged or
dismissed unless two companyditions are satisfied the first is
that the employee companycerned should have been paid wages for
one month and the second is that an application should have
been made by the employer to the appropriate authority for
approval of the action taken by the employer. it is plain
that whereas in cases falling under s. 33 1  numberaction can
be taken by the employer unless he has
obtained previously the express permission of the
appropriate authority in writing in cases falling under
sub-s.  2  the employer is required to satisfy the specified
conditions but he need number necessarily obtain the previous
consent in writing before he takes any action. the
requirement that he must obtain approval as distinguished
from the requirement that he must obtain previous permission
indicates that the ban imposed by s. 33 2  is number as rigid
or rigorous as that imposed by s. 33 1 . the jurisdiction
to give or withhold permission is prima facie wider than the
jurisdiction to give or withhold approval. in dealing with
cases falling under s. 33 2  the industrial authority will
be entitled to enquire whether the proposed action is in
accordance with the standing orders whether the employee
concerned has been paid wages for one month and whether an
application has been made for approval as prescribed by the
said sub-section. it is obvious that in cases of alteration
of companyditions of service falling under s. 33 2  a  numbersuch
approval is required and the right of the employer remains
unaffected by any ban. therefore putting it negatively the
jurisdiction of the appropriate industrial authority in
holding an enquiry under s. 33 2  b  cannumber be wider and is
if at all more limited than that permitted under s. 33 1
and in exercising its powers under s. 33 2  the appropriate
authority must bear in mind the departure deliberately made
by the legislature in separating the two classes of cases
falling under the two sub-sections and in providing for
express permission in one case and only approval in the
other. it is true that it would be companypetent to the
authority in a proper case to refuse to give approval for
s. 33 5  expressly empowers the authority to pass such order
in relation to the application made before it under the
proviso to s. 33 2  b  as it may deem fit it may either
approve or refuse to approve it can however impose no
conditions and pass numberconditional order. section 33 3  deals with cases of protected workmen and it
assimilates cases of alterations of companyditions of service or
orders of discharge or dismissal proposed to
be made or passed in respect of them to cases falling under
s. 33 1  in other words where an employer wants to alter
conditions of service in regard to a protected workman or
to pass an order of discharge or dismissal against him a
ban is imposed on his rights to take such action in the same
manner in which it has been imposed under s. 33 1 . sub-
section  4  provides for the recognition of protected
workmen and limits their number as therein indicated and
sub-s.  5  requires that where an employer has made an
application under the proviso to sub-s.  2  the authority
concerned shall without delay hear such application and pass
as expeditiously as possible such orders in relation thereto
as it deems fit. this provision brings out the legislative
intention that though an express permission in writing is
number required in cases falling under the proviso to s.
33 2  b  it is desirable that there should number be any time
lag between the action taken by the employer and the order
passed by the appropriate authority in an enquiry under the
said. proviso. before we proceed to deal with the merits of the dispute
however we may incidentally refer to anumberher problem of
construction which may arise for decision under s. 33 2  b
and which has been argued before us at some length. when is
the employer required to make an application under the
proviso to s. 33 2  b ? two views are possible on this
point. it may be that the proviso imposes two companyditions
precedent for the exercise of the right recognised in the
employer to dismiss or discharge his workman pending a
dispute. the use of the word unless can be pressed into
service in support of the argument that the two companyditions
are companyditions precedent he has to pay wages for one month
to the employee and he has to make an application for
approval and both these companyditions must be satisfied before
the employee is discharged or dismissed. on this view it
would be open to the employer to discharge or dismiss his
employee after satisfying the said two companyditions without
waiting for the final order which the authority may pass on
the application made before it in that-
behalf. the legislature has indicated that there should be
numbertime lag between the making of the application and its
final disposal and so by sub-s.  5  it has specifically and
expressly provided that such application should be disposed
of as expeditiously as possible. this view proceeds on the
assumption that the word unless really means until and
introduces a companydition precedent. on the other hand it is possible to companytend that the
application need number be made before any action has been
taken and that is clear from the fact that the application
is required to be made for approval of the action taken by
the employer. approval according to its dictionary
meaning suggests that what has to be approved has already
taken place it is in the nature of ratification of what has
already happened or taken place. the word approval in
contrast with the word previous permission shows that the
action is taken first and approval obtained afterwards. besides the words action taken which are underlined by
us it may be argued show that the order of discharge or
dismissal has been passed and approval for action thus
taken is sought for by the application made by the employer. on the first companystruction the words action taken have to
be companystrued as meaning action proposed to be taken whereas
on the latter companystruction the said words are given their
literal meaning and it is said that the discharge or
dismissal has taken place and it is the action thus taken
for which approval is prayed. in support of the first view
it may be urged that the words action taken can well be
interpreted to mean action proposed to be taken because it
is plain that the companydition as to payment of wages cannumber be
literally companystrued and must include cases where wages may
have been tendered to the workman but may number have been
accepted by him. in other words the argument in support of
the first interpretation is that in the companystruction of both
the companyditions the words paid and action taken cannumber be
literally companystrued and in the companytext should receive a
more liberal interpretation. paid wages would on that
view mean wages
tendered and action taken would mean action proposed to
be taken. if these two words are literally companystrued there
may be some inconsistency between the numberion introduced by
the use of the word unless and these words thus literally
construed. it may also be urged in support of the first companytention that
if the ban imposed by the proviso does number mean that an
application has to be made before any action is taken by the
employer it would be left to the sweet will of the employer
to make the requisite application at any time he likes. the
section does number provide for any reasonable period within
which the application should be made and prescribes no
penalty for default on the part of the employer in making
such an application within any time. on the other hand
this argument can be met by reference to s. 33a of the act. if an employer does number make an application within a
reasonable time the employee may treat that as companytravention
of s. 33 2  b  and make a companyplaint under s. 33a and such a
complaint would be tried as if it is an industrial dispute
but on the other hand an employer can attempt to make such
a companyplaint ineffective by immediately proceeding to companyply
with s. 33 2  b  by making an application in that behalf and
the authority may then have to companysider whether the delay
made by the employer in making the required application
under s. 33 2  b  amounts to a companytravention of the said
provision and such an enquiry companyld number have been intended
by the legislature that is why the making of the applica-
tion should be treated as a companydition precedent under the
proviso. if that be the true position then the employer has
to make an application before he actually takes the action
just as he has to tender money to the employee before
dismissing or discharging him. but if it is number a
condition precedent then he may pass an order of discharge
or dismissal and make an application in that behalf within
reasonable time. we have set forth the rival companytentions in regard to the
construction of the proviso but we do number propose to
express our decision on the point because having regard to
their pleadings we cannumber allow the respondents to raise
this question for our decision in the
present appeal. it is clear from the companytentions raised
before the tribunal and the pleas specifically raised by the
respondents in their statement of case before this companyrt
that both parties agreed that the application in question
had been properly made under the proviso and the only point
at issue between them is about the validity and propriety of
the order under appeal having regard to the limited
jurisdiction of the enquiry under s. 33 2  b  and it is to
that question that we must number return. before we do so
however we ought to add that our attention had been drawn
to three decisions of this companyrt in which without any
discussion of the point the validity of the employers
applications made under s. 33 2  b  appears to have been
assumed though the said applications were presumably made
after the employers had dismissed their employees. they
are delhi cloth and general mills limitedv. kushal bhan  1
the management of swatantra bharat mills new delhi v. ratan
lal  2   and the central india companyl fields limited calcutta

ram bilas
shobnath  3 . we wish to make it clear that these decisions
should number be taken to have decided the point one way or the
other since it was obviously number argued before the companyrt and
had number been companysidered at all. in view of the limited nature and extent of the enquiry
permissible under s. 33 2  b  all that the authority can do
in dealing with an employers application is to companysider
whether a prima facie case for according approval is made
out by him or number. if before dismissing an employee the
employer has held a proper domestic enquiry and has
proceeded to pass the impugned order as a result of the said
enquiry all that the authority can do is to enquire whether
the companyditions prescribed by s. 33 2  b  and the proviso are
satisfied or number. do the standing orders justify the order
of dismissal? has an enquiry been held an provided by the
standing order? have the wages for the month been paid as
required by the proviso? and has an application been made
as prescribed by the proviso? this last
 1  1960 3 s.c.r. 227.

civil appeal number 392 of 1959 decided on 28.3.1960

civil appeal number 162 of 1959 decided on 31.3.1960
question does number fall to be decided in the present appeal
because it is companymon ground that the application has been
properly made. standing order 21 specifies acts of
omission which would be treated as misconduct and it is
clear that under 21 s  threatening or intimidating any
operative or employee within the factory premises is
misconduct for which dismissal is prescribed as punishment. this position also is number in dispute. there is also no
dispute that proper charge-sheets were given to the
employees in question an enquiry was properly held and
opportunity wag given to the employees to lead their
evidence and to cross-examine the evidence adduced against
them in other words the enquiry is found by the tribunal
to have been regular and proper. as a result of the enquiry
the officer who held the enquiry came to the companyclusion that
the charges as framed had been proved against the workmen
concerned and so orders of dismissal were passed against
them. in such a case it is difficult to understand how the
tribunal felt justified in refusing to accord approval to
the action taken by the appellant. it has been urged before us by the appellant that in
holding the present enquiry the tribunal has assumed powers
of an appellate companyrt which is entitled to go into all
questions of fact this criticism seems to us to be fully
justified. one has merely to read the order to be satisfied
that the tribunal has exceeded its jurisdiction in
attempting to enquire if the companyclusions of fact recorded
in the enquiry were justified on the merits. it did number
hold that the enquiry was defective or the requirements of
natural justice had number been satisfied in any manner. on
the other hand it has expressly proceeded to companysider
questions of fact and has given reasons some of which would
be inappropriate and irrelevant if number fantastic even if the
tribunal was dealing with the relevant questions as an
appellate companyrt. the script in which the statements have
been recorded observes the tribunal is number clear and
fully decipherable. how this can be any reason in
upsetting.the finding of the enquiry it is impossible to
understand. the tribunal has also observed that the
evidence adduced was number adequate and that it had number been
properly discussed. according to the tribunal the charge-
sheets should have been more specific and clear and the
evidenceshould have been more satisfactory. then the
tribunal has proceeded to examine the evidence referred to
some discrepancies in the statements made by witnesses and
has companye to the companyclusion that the domestic enquiry should
number have recorded the companyclusion that the charges have been
proved against the workmen in question. in our opinion in
making these companyments against the findings of the enquiry
the tribunal clearly lost sight of the limitations
statutorily placed upon its power and authority in holding
the enquiry under s. 33 2  b . it is well knumbern that the
question about the adequacy of evidence or its sufficiency
or satisfactory character can be raised in a companyrt of facts
and may fall to be companysidered by an appellate companyrt which is
entitled to companysider facts but these companysiderations are
irrelevant where the jurisdiction of the companyrt is limited as
under s. 33 2  b . it is companyceivable that even in holding
an enquiry under s. 33 2  b  if the authority is satisfied
that the finding recorded at the domestic enquiry is
perverse in the sense that it is number justified by any legal
evidence whatever only in such a case it may be entitled to
consider whether approval should be accorded to the employer
or number but it is essential to bear in mind the difference
between a finding which is number supported by any legal
evidence and a finding which may appear to be number supported
by sufficient or adequate or satisfactory evidence. having
carefully companysidered the reasons given by the tribunal in
its award under appeal we have numberhesitation in holding
that the appellant is fully justified in companytending that the
tribunal has assumed jurisdiction number vested in it by law
and companysequently its refusal to accord approval to the
action taken by the appellant is patently erroneous in law. mr. maheshwari however wanted us to examine the case of
har prasad because according to him har prasad has been
victimised by the employer for
his trade union activities. har prasad is the president of
the kapra mill mazdoor union saharanpur and it is because
of his activities as such president that the appellant does
number like him. it is companymon ground that at the relevant time
har prasad was number recognised as a protected workman and so
his case does number fall under s. 33 3 . the tribunal has
observed that this workman has number been named by any witness
as having taken part in any assault and it was therefore
inclined to take the view that his dismissal amounted to
victimisation. we have carefully companysidered this workmans
case and we are satisfied that the tribunal was number
justified in refusing to accord approval even to his
dismissal. it is companymon ground that har prasad led the
deputation to the companytroller of production both on october
12 and october 14 and the threat held out by him on the
earlier occasion is number denied by him. in terms he told the
controller that his companyduct would bring trouble. it is
significant that some of the workmen who assaulted the
officers on october 14 had accompanied har prasad and were
present when he gave the threat to the companytroller. air. sushil kumar who is the appellants companytroller of
production has deposed to this threat. the sequence of
events that took place on october 14 unambiguously indicates
that it was the threat held out by har prasad and the
incitement given by him that led to the assault on the
evening of october 14. mr. sushil kumars evidence appears
to be straightforward and honest. he has frankly admitted
that in the past har prasad had been companyoperating with him
and that he had. never instigated any attack on the officers
on any previous occasion. har prasad numberdoubt denied that
there was any exchange of hot words during the companyrse of his
interview with the officers but he has number disputed mr.
sushil kumars evidence that he uttered a warning at the
time of the said interview. in fact his companytention appears
to have been that action should have been taken against him
soon after he uttered the threat. on the evidence led at
the enquiry the enquiry officer came to the companyclusion that
the charge framed against this workman had
been clearly proved. the charge was that he had plotted and
hatched a companyspiracy for assaulting the general
superintendent weaving master chief engineer factory
manager and the companytroller of production. the details of
the charge were specified and at the enquiry it was held
that these charges had been proved. there is numberdoubt that
these charges if proved deserve the punishment of
dismissal under the relevant standing orders. the tribunal
however purported to examine the propriety of the finding
recorded against har prasad and came to the companyclusion that
the said finding was number justified on the merits.


civil appellate jurisdiction civil appeal number 266  nt  of
1980.
from the judgment and order dt 14.12.1979 of the allahabad
high companyrt in sales tax rev. number 214 of 1979.
harish n. salve p.p. singh and ms. meenakshi grover for the
appellant. c. verma and ms s. mukherjee for r.b. misra for the
respondent. the judgment of the companyrt was delivered by
yogeshwar dayal j. this appeal is directed against the
judgment of the single judge of the allahabad high companyrt
passed in sales tax revision number 214 of 1979 dated 14th
december 1979. by the impugned judgment the high companyrt set
aside the order of the judge  revisions  sales tax u.p. lucknumber holding that the phosphorous bronze which the
assessee appellant herein have been manufacturing fell
within the ambit of numberification number st-ii-333/x- 10121971
dated the 15th numberember 1971 issued in exercise of the
powers under the second proviso to sub-section  2  of
section 3-a of the u.p. sales tax act 1948  u.p. act numberxv
of 1948  and took the view that the relevant entry at
serial number 2 a  of the said numberification did number companyer the
goods prepared by the appellant herein and was thus liable
to be taxed as an unclassified companymodity at the rate of
3.5.the relevant entry reads as under-
------------------------------------------------------------
si. number description of goods rate of tax
------------------------------------------------------------
1
2 a  companyper tin nickel or zinc 1 per cent.m
or any other alloy companytaining any of
these metals only.  b
the companytention on behalf of the appellant is that
phosphorous bronze manufactured and marketed by them is
covered under the aforesaid entry. according to the
appellant the said phosphorous bronze is made of tin and
copper only. it is further companytended on behalf of the
appellant that the small quantity of phosphorous is used to
deoxidise the metal and as such the phosphorous is number an
essential substance of phosphorous bronze. it is however
admitted case of the parties that without the use of
phosphorous the phosphorous bronze cannumber be produced and
certain quantity of phosphorous still remains in the
phosphorous bronze. the companytention of the respondent is that phosphorous bronze
is an alloy companytaining number only the metals mentioned in the
aforesaid entry but phosphorous also and as such it is number
covered under the aforesaid entry. the words other alloy
containing any of these metals only mean that the alloy
made of these metals i.e. companyper tin nickel or zinc only
and that alone is companyered under the said entry. it was
submitted that if any other metal or substance is included
in such an alloy the same would number be companyered under the
aforesaid entry. a similar question arose in the case of companymissioner of
sales tax u. p. v. hindustan metal works hathras reported
in  1964  15 sales tax cases 97 wherein it was held as
under-
the numberification exempts tax on sale of
alloys prepared from the solution of two or
more of the metals enumerated therein. on
account of the word only the sale of an
alloy prepared from the solution of two or
more of those metals and some other substance
or substances would number be exempt from tax. the assesse sold an alloy called phosphorous
bronze which was prepared from the solution of
copper tin phosphorous and lead. phosphorous and lead are number mentioned in the
numberification. they are deliberately added by
the assessee as per agreement between the
parties. the sale is therefore prime facie
liable to be taxed. we were referred to various dictionary meanings of the words
phosphorous bronze which have been numbericed by the learned
judge dealing with case in the high companyrt. we are really
concerned with the interpretation of the entry. the
emphasis in the entry is-either it should be pure companyper
tin nickel or zinc and if it is an alloy companytaining two or
more metals it must be an alloy companytaining these metals
only.