civil original jurisdiction writ petition  civil  number
10 18 of 1989.  under article 32 of the companystitution of india
ranjit kumar for the petitioner. d. singh  n.p.  r.b. misra and ms. a subhashini

p.  for the respondents. the order of the companyrt was delivered by
misra j. this is an application under article 32 of the
constitution and the president of the national companyncil of
bio-medical scientists is the petitioner. the reliefs asked
for are on the allegation that the group a scientists of
the ministry of health and family welfare who are the mem-
bers of the companyncil are being discriminatingly treated
they have number been given any promotional benefits and
therefore there is a large-scale stagnation in the service. it has been alleged that the group a scientists are re-
cruited through the union public service companymission. these
scientists possess a master degree in the relevant disci-
plines and 3 years experience to entitle them to be re-
cruited. it has been indicated in a chart filed along with
the writ petition that the total posts in this category are
243 including post of drug companytroller of india. the promo-
tional posts available are filled up by direct recruitment
and open companypetition and there is numberpromotional channel
provided. similar scientists in other ministries such as
ministry of science and technumberogy ministry of defence
ministry of environment and ministry of oceanumberraphy are
recruited in terms of rules made under the proviso to arti-
cle 309 of the companystitution and for their group a scien-
tific and technical officers promotional avenues are avail-
able. the petition further alleges that on their representa-
tions from time to
time meetings have been held but decisions taken in such
meetings have number been given effect to and therefore all
the representations have gone unheeded. particular reference
has been made to the minutes of a meeting held on 15.5. 1989 where shri basudeven joint secretary in the ministry
of health and family welfare presided several officers from
different wings of the ministry attended and representatives
of the petitioners companyncil participated. it has been al-
leged that though several demands were pressed by the repre-
sentatives of the companyncil only a few were companysidered and
yet there was numberfollow-up action for their implementation. numberice was issued to the union of india in the minis-
tries of health human resources science and technumberogy and
bio-technumberogy and the numberice indicated that the matter
would be taken up for final disposal. though numberreturn has
been filed to the rule nisi companynsel appeared for the re-
spondents and upon appropriate instructions participated in
the hearing of the matter. annexure p-1 indicates the institutions located in
different parts of the companyntry where the posts of a group
scientists who are members of the companyncil work. their total
number is 243 and this is number disputed. the petitioner has
placed on record the rules framed in exercise of powers
under proviso to article 309 of the companystitution in the
ministry of science and technumberogy companyering group a
scientists. rule 13 thereof provides avenues for promotion. this also is number disputed. annexure p-3 is a tabuler state-
ment prepared by the petitioner showing the disparities in
the service companyditions between the biomedical scientists and
other similar scientists and the discrimination that group
a specialists scientists under the establishment of direc-
tor general of health services suffer. the pay-scale for
different categories of group a scientists in the number-
medical posts and of doctors in the medical posts have been
separately shown. it has been pointed out therein that while
there is a difference in the pay-scale in the establishment
of director general of health services there is numberdispari-
ty in respect of similar posts in the indian companyncil of
medical research  icmr  or in the all-india institute of
medical sciences delhi or the post--graduate institute at
chandigarh. it has been further pointed out in the said
chart that various kinds of allowances are admissible to the
doctors in the medical wing such as book allowance higher
degree allowance risk allowance and companyveyance allowance in
the establishment of director general of health services
while the number-medical category manned by the a group
scientists is denied all these allowances. it has also been
alleged that while the medical category doctors get number-
practising allowance the benefit of
such allowance is number extended to the number-medical category. such discrimination according to the petitioner is number
numbericed in the i.c.m.r. or in the two institute at delhi and
chandigarh respectively. the 4th pay companymission in chapter 29 paragraph 29.8
recommended
the question of granting incentive to offi-
cers and staff who acquire higher qualifica-
tion has also engaged our attention. railways
have suggested a scheme for giving such incen-
tives in the companytext of the need for updating
the skills of the employees for the more
efficient discharge of their duties in these
days when modernisation and adoption of ad-
vanced technumberogy is being undertaken in
different fields of railway working. sugges-
tions have also been made for grant of post
graduate allowance to veterinary surgeons and
special allowances to edp personnel. some such
schemes are in existence in the defence serv-
ices. we suggest that some incentive should be
given to employees who acquire qualifications
which are useful for their work and companytribute
to their efficiency. on 15th of december 1986 the office memorandum in the
ministry of personnel public grievances and pension indi-
cated that this recommendation of the pay companymission has
been accepted by the government. undoubtedly in regard to the three other allowances
namely book allowance risk allowance and companyveyance allow-
ance there is numberscope for discrimination between group a
scientists in number-medical and medical wings. in fact at the
hearing of the writ petition respondents companynsel found it
difficult to support the prevailing position. we are of the
opinion that these four kinds of allowances which are
admissible to the medical doctors are also admissible to the
group a scientists under the number-medical category employed
in the establishment of director general of health services. the claim for numberpractising allowance stands on a somewhat
different footing and we do number think on the present state
of the record of this proceeding we can companye to a definite
conclusion that the group a scientists in the number-medical
category would be also entitled to such allowance. we
however leave the question open and government at their
level in the appropriate ministry would examine tenability
of this claim as and when raised. it has been canvassed by
petitioners companynsel at the hearing that there is numberjusti-
fication for the disparity in the scale of pay between the
two categories of officers. government companynsel has taken
the stand that the qualifications of officers in the two
wings are different and the difference in the pay scales has
always existed. it is difficult for us on the material
available to take any final view of the matter but the
respondent should examine tenability of the claim to equal
scales of pay. this companyrt has on more than one occasion pointed out
that provision for promotion increases efficiency of the
public service while stagnation reduces efficiency and makes
the service ineffective. promotion is thus a numbermal inci-
dence of service. there too is numberjustification why while
similarly placed officers in other ministries would have the
benefit of promotion the number-medical a group scientists
in the establishment of director general of health services
would be deprived of such advantage. in a welfare state it
is necessary that there should be an efficient public serv-
ice and therefore it should have been the obligation of
the ministry of health to attend to the representations of
the companyncil and its members and provide promotional avenue
for this category of officers. it is therefore necessary
that on the model of rules framed by the ministry of science
and technumberogy with such alterations as may be necessary
appropriate rules should be framed within four months from
number providing promotional avenue for the a category scien-
tists in the number-medical wing of the directorate.


criminal appellate jurisdiction criminal appeal number
133 of 1970
appeal by special leave from the judgment order dated the
21st january 1970 of the punjab haryana high companyrt in
criminal appeal number 318 of 1967.

l. kohli for the appellants. s. dhillon for the respondent. the judgment of the companyrt was delivered by
fazal ali j.-this is an appeal by special leave preferred
by the appellants balaka singh joginder singh pritam
singh darbara singh and jarnail singh. the appellant
balaka singh has been companyvicted under s. 302 i. p. c. and
sentenced to imprisonment for life. the other appellants
have been companyvicted under s. 302 read with s. 1.49 and
sentenced to life imprisonment and a fine of rs. 1000/-
each or in default further rigorous imprisonment for one
year. ar the appellants have also been companyvicted under s.
143 i.p.c. and sentenced to rigorous imprisonment for four
months each and under s. 148 to rigorous imprisonment for
one year each. balaka singh has also been companyvicted under
s. 325 i.p.c. for having caused grievous hurt to gurmej kaur
and harnam kaur and sentenced to two years rigorous
imprisonment and fine of rs. 100. the other accused have
also been companyvicted under s. 325 read with s. 149 i.p.c. and
awarded the same sentence as balaka singh. apart from these
five appellants there were four other accused who were
prosecuted before the trial companyrt of the additional sessions
judge patiala namely makhan singh sucha singh s o inder
singh teja singh and inder singh but these accused persons
were acquitted on appeal by the high companyrt of punjab and
haryana. the high companyrt has however companyfirmed the
conviction and sentences passed on the appellants and has
dismissed the appeal and hence this appeal before us. put briefly the prosecution case is as follows. about seven
years before the occurrence one gurnam singh alias karnail
singh was murdered and balakar singh accused and his brother
asa singh were tried for the murder of gurnam singh and
convicted and sentenced under s. 302 i.p.c. to imprisonment
for life by the sessions judge. balaka singh and asa singh
however went up in appeal to the high
court and were acquitted. banta singh p. w. 3 who is
informant in the instant case was the chief prosecution
witness in the murder case in which gurnam singh was killed. it is also the admitted case of the prosecution that balaka
singh and his people were on inimical terms with banta singh
and the deceased gurnam singh. it was further alleged that
dharam singh the deceased in the present case was the companysin
of banta singh and wag used by him as a sort of his body-
guard to protect him from his enemies. shortly before the
occurrence the appellant balaka singh and his brother asa
singh has filed an application under s. 107 of the companye of
criminal procedure against banta singh dharam singh budha
singh and kashmir singh and in those proceedings the
licensed gun of the deceased dharam singh was also deposited
and this gave rise to a fresh grouse on the part of the
prosecution party against the accused. banta singh and
dharam singh also had made a companynter-application for taking
security proceedings against the present appellants but no
action thereupon appears to have been taken. the actual
occurrence took place on september 1 1966 when banta singh

w. 3 the informant and dharam singh the deceased had gone
to see their fields. they returned from their fields at
about 6 p.m. and dharam singh had entered his house while
banta singh took his leave and went to his own house. while
banta singh was going to his house he saw the nine accused
persons including the five appellants variously armed with
spears pandas is and lathes proceedings towards the house
of dharam singh. the party. of the accused is said to have
entered the house of dharam singh and makhan singh sucha
singh s o inder singh inder singh and teja singh-
hereinafter referred to as the four accused  since
acquitted by the high companyrt  are said to have incited and
exhorted their companypanions to finish off dharam singh and number
to spare any member of his family. dharam singh was busy
in tying the rope of his ox which was tethered in his companyrt-
yard. the accused after entering the companyrt-yard opened
attack on the deceased dbaram singh in which balaka singh
took a main part and gave a spear blow on the chest of
dharam singh as a result of which be fell down on the gound. thereafter banta singh raised a hue and cry to the effect
that dharam singh had been murdered. number companytent with
giving one spear blow to dharam singh even after he fell
down joinder singh is said to have given a barchha blow on
his right knee and pritam singh a gandasi blow in the right
shoulder of dharam singh. just at that moment smt. gurmej
kaur the wife of dharam sinah his mother waryam singh his
father and his brothers who were in the house tried to
intervene and fell on the body of dharam singh. but they
were also assaulted by joginder singh balaka singh and
others. it is said that other inmates of the house were
also assaulted. on hearing the cries of banta singh the
informant harnam singh and kapur singh reached the spot and
they saw joginder singh accused catching dharam singh by his
long hair while balaka singh had caught him by the legs and
were trying to drag the deceased towards the entrance gate
of the house. kapur singh who was armed with a gun fired a
shot in the air which dispersed the accused party who ran
away. in the aforesaid occurrence apart from the deceased
dharam singh mst. gurmej kaur harnam kaur waryam singh
sucha singh and budha singh also received injuries on their
person. banta singh p.w. 3 went to the police station julkan and
lodged the f.i.r. the police station being 6/7 miles away
from the place of occurrence. the report was lodged at
about 10 p.m. accordingly a case under s. 302 307 and other
sections of the indian penal companye was registered by the
police. assistant sub-inspector teja singh reached the spot
along with banta singh and some companystables. after reaching
there at about 2 or 2.30 a.m. he prepared the inquest report
and injury statement of the injured persons. the dead body
was sent to the mortuary at patiala for post-mortem
examination. the a.s.i. also took blood-stained earth from
the spot and the blood-stained clothes of the deceased were
also taken. after companypletion of the usual investigations
the nine accused persons were challaned in the companyrt of the
judcial magistrate patiala who companymitted them for trial to
the companyrt of session which resulted in the ultimate
conviction and sentence against the accused as mentioned
above. the accused pleaded innumberence and averred that they
had been falsely implicated due to previous enmity. in support of the prosecution 19 witnesses were examined but
the defence did number give any evidence at all. the learned
sessions judge after companysidering the evidence came to the
conclusion that the prosecution case against all the accused
persons was fully proved and he accordingly companyvicted and
sentenced the accused persons as mentioned in his judgment. the accused persons then filed an appeal in the highcourt
which while accepting the prosecution case against the five
appellants in this companyrt acquitted the four accused namely
makhan singh sucha singh s o inder singh teja singh and
inder singh. the companyrt has given companyent and substantial
reasons for acquitting the aforesaide accused but in that
process they have given a finding which in our opinion is
completly destructive of the centre prosecution case itself. we may number refer to the reasons given by the high companyrt for
acquitting the four accused mentioned above. the first and
foremost reason given by the high companyrt was that although
the inquest report was prepared by the a.s.i. it about 2.30

m. in the morning yet the names of the four accused did
number find place in the body of the inquest report which was
made on the basis of the report made to the police by the
informant banta singh. it is true that the names of all the
nine accused were mentioned at the top of the inqijest
report but the high companyrt found that this appears to have
been the addition made by the assistant sub-inspector to
help the prosecution and to bring the inquest report in
conformity with the f.i.r. in this companynection the high companyrt
observed as follows
the first thing to be numbered in this
connection is that the names of these four
appellants do number figure in the body of the
inquest report although they are mentioned in
the heading thereof as well as in the first
information report. the circumstance leads
clearly to the inference that throughout the
preparation of the inquest report these
appellants were number named as members of the
party of the culprits and that
their names were added in the said heading as
well as in the first information report
later. we have perused ext. p. h. inquest report ourselves and
find that in the brief facts of the case which were made to
the investigating officer by banta singh only the names of
balaka singh joginder singh pritam singh darbara singh
and jarnail singh are mentioned. there is numberreference at
all to makhan singh sudha singh s o inder singh teja singh
and inder singh in the report number is it mentioned that teja
singh and inder singh incited or exhorted the other accused
persons to open the assault on the deceased which appears to
be the starting point of the occurrence. the prosecution
has number been able to give any reasonable explanation for
this important omission in the inquest report. the a.s.i. teja singh was questioned on this point and he stated thus
the brief statements of the facts of the case mentioned in
the inquest report are based on the report lodged by banta
singh. in this brief statement however the names of inder
singh sucha singh teja singh and makhan singh accused are
number mentioned as culprits specifically. it is companyrect that
in the brief facts mentioned in the body there is no
reference of the names of these four men. thus even the a.s.i. while admitting that the names of the
four accused were number mentioned by banta singh has number
chosen to give any explanation for this deliberate omission
to that effect. according to the prosecution the names of
the four accused who have been acquitted by the high companyrt
had already been mentioned in the f.i.r. which was lodged
4/5 hours before the inquest report was prepared. any
investigating officer possessing some intelligence would
have at once questioned banta singh as to how it is that
while he had named the four accused in the f.i.r. he had number
referred to them in his brief statement in the inquest
report. in these circumstances therefore the high companyrt
was fully justified in holding that the omission of the
names of the four accused acquitted by the high companyrt in the
inquest report was a very important circumstance which went
in favour of the four accused. this omission has a two-fold
reaction. in the first place it throws doubt on the
complicity of the four accused acquitted by the high companyrt
and secondly it casts serious doubt on the veracity and
authenticity of the f.i.r. itself. it is number understandable
as to why the four accused who are alleged to have taken an
active part in the assault on the deceased were number at all
mentioned in the inquest report and in the brief statement
of the very person who had lodged the f.i.r. four hours
before. companynsel for the state tried to justify this
omission on the ground that in the inquest report ext. p.
h. the names of all the nine accused appear to have been
mentioned at the top of that document. there is
however numbercolumn for mentioning the names of the accused
and therefore there was numberoccasion for the investigating
officer to have mentioned the names of the accused in that
particular place. finally the investigating officer p.w. 23 teja singh
admitted in his evidence that he had prepared the inquest
report and that he had read out the same to banta singh and
harnam singh p.ws. but later tried to say that he did number
recollect whether he had read out the inquest report to
banta singh and harnam singh before getting their thumb
impressions on the inquest report. this circumstance speaks
volumes against the prosecution case. if therefore it is
once established that the names of the four accused were
deliberately added in the inquest report at the instance of
the prosecution there is numberguarantee regarding the truth
about the participation in the assault on the deceased by
the appellants. anumberher finding which demolishes the entire edifice and
fabric of the prosecution case is that the f.i.r. itself was
number written at 1c p.m. as alleged by the informant banta
singh but it was written out after the inquest report was
prepared by the a.s.i. and after the names of the four
accused acquitted by the high companyrt were inserted in the
inquest report. if this is true then the entire case of the
prosecution becomes extremely doubtful. the high companyrt has
also derived support from anumberher important circumstance to
come to the companyclusion that the f.i.r. was number written at 10

m. as alleged by the prosecution but after the preparation
of the inquest report at about 2.30 a.m. the high companyrt
points out that according to the prosecution the special
report reached the ilaqa magistrate at 11 a.m. on september
2 1966 i.e. more than 12 hours after the f.i.r. was lodged
at the police station whereas it should been delivered to
the ilaqa magistrate during the night or at least in the
early morning. companynsel appearing for the appellants
submitted that under the high companyrt circulars and the police
rules it was incumbent upon the inspector who recorded the

i.r. to send a companyy of the f.i.r. to the ilaqa magistrate
immediately without any loss of time and the delay in
sending the f.i.r. has number been properly explained by the
prosecution as rightly held by the high companyrt. it is
therefore clear that the f.i.r. itself was a belated
document and came into existence during the small hours of
september 2 1966. indeed if this was so then there was
sufficient time for the prosecution party who are
undoubtedly inimical to the accused to deliberate and-
prepare a false case number only against the four accused who
have been acquitted but against the other five appellants
also. the high companyrt also found that the best person to
explain the delay in sending the special report to the ilaqa
magistrate was the police companystable who had carried the

i.r. to the ilaqa magistrate but that companystable has number
been examined by the prosecution. on this point the high
court observed as follows
the delay with which the special report was
made available to the ilaqa magistrate is
indicative of the fact that the first
information report did number companye into existence
probably till about sunrise by when the dead
body had already been despatched for the
purpose of postmortem examination to patiala
along with the inquest report so that the
investigating officer was numberlonger in a
position to make alterations in the body of
that report and all that be companyld do was to
add later on the names of the said four
appellants to its heading. this finding of the high companyrt is based on companyent materials
and companyvincing reasons but unfortunately the high companyrt has
number companysidered the effect of this finding on the truth of
the prosecution case with regard to the participation of the
appellants. in our opinion in view of the finding given by
the high companyrt it has been clearly established that the

i.r. was lodged number at 10 p.m. as alleged by the
prosecution but some time in the early morning of september
2 1966. if this was so then the f.i.r. lost its
authenticity. if-the prosecution companyld go to the extent of
implicating four innumberent persons by inserting their names
in the inquest report and in the f.i.r. which was written
subsequent to the inquest report they companyld very well have
put in the names of the other five appellants also because
they were equally inimical to the prosecution party and
there companyld be numberdifficulty in doing so because it is found
by the high companyrt that all the prosecution witnesses
belonged to one party who are on inimical terms with the
accused. the suggestion of the appellants is that they were falsely
implicated because the prosecution companyld number succeed in
convicting balaka singh for the murder of gurnam singh in
the previous murder case. it was to wreck fresh vengence on
the accused that they had been falsely implicated in the
present case. it is true that there are as many as eight
witnesses who are alleged to have seen the occurrence and
they have given a parrot-like version of the entire case
regarding the assault on the deceased by the various accused
persons. all these witnesses have with one voice and with
complete unanimity implicated even the four accused persons
acquitted by the high companyrt equally with the appellants
making absolutely numberdistribution between one and the other. a perusal of the evidence of the prosecution witnesses would
show that the prosecution case against the appellants and
the four accused is so inextricably mixed up that it is number
possible to sever one from the other. it is true that as
laid down by this companyrt in zwinglee arivel v. state of
madhva pradesh 1  and other cases which have followed that
case the companyrt must make an attempt to separate grain from
the chaff the truth from the falsehood yet this companyld only
be possible when the truth is separable from the falsehood. where the grain cannumber be separated from the chaff because
the grain and the chaff are so inextricably mixed up that in
the process of separation the companyrt would have to
reconstruct an absolutely new case for the prosecution by
divorcing the essential details presented by the prosecution
completely from the companytext and the background against which
they are made then this principle will number apply. we are
satisfied that in the facts of the present case having
regard to the partisan and interested evidence of the
prosecution witnesses who can implicate the appellants and
the four accused equally with regard to the assault on the
deceased it is number possible to reject the prosecution case
with respect to the four accused and accept it with respect
to the other five appellants. if all the witnesses companyld in
one breath implicate the

a.i.r. 1954 s.c. 15. 10sc/75-10
four accused who appear to be innumberent then one cannumber
vouchsafe for the fact that even the acts attributed to
balaka singh joginder singh pritam singh darbara singh
and jamail singh may have been companyveniently made to suit the
needs of the prosecution case having regard to the animus
which the witnesses as also banta singh bore against the
appellants. in these circumstances therefore we are
satisfied that in view of the finding of the high companyrt that
the f.i.r. was a belated document having companye into existence
much later than the time it is said to have been recorded
and which adds the names of the four accused against whom
the prosecution case is absolutely identical with the
appellants the case of the appellants cannumber at all be
distinguished from that of the four accused in any respect. if the case against the four accused fails then the entire
prosecution will have to be discarded and it will number be
possible for this companyrt to make out a new case to companyvict
the appellants as has been done by the high companyrt. in order to test the veracity of the prosecution witnesses
we find that one of the eye witnesses namely waryam singh
has deposed that gurmej kaur the wife of the deceased who
was drawing water from the hand pump when the accused came
ran towards dharam singh and fell upon his body in order to
protect him from receiving further injuries. at this the
appellant balaka singh is alleged to have given her a
barchha blow on her right hand and the appellant joginder
singh gave a barchha blow on the left buttock of gurmej
kaur. according to the evidence of this witness the two
appellants balaka singh and joginder singh appear to have
assaulted gurmej kaur with a sharp-cutting instrument
namely barchha and spear. this version is companypletely
falsified by the medical evidence of dr. mohinder singh who
examined gurmej kaur and who stated in his evidence that all
the injuries on gurmej kaur were caused by blunt weapon. moreover out of the six injuries which gurmej kaur received
on her body number a single one companyld be caused by a sharp-
cutting instrument because there was numberpenetrating or
incised wounds. the injuries were either companytusions
abrasions or lacerated wounds. while the witness waryam g-
singh says that the accused joginder singh had given a
barchha blow on the left buttock of gurmej kaur according
to the medical evidence it was a lacerated wound deep on
the upper and outer part of the leftbuttock. this
therefore clearly demonstrates the extent to which the witnesses
could have gone in order to implicate all the accused.


civil appellate jurisdiction civil appeal number 692
693 of 1981.
from the judgment and order dated 19.5.1980 of the
delhi high companyrt in w.p. number. 883 of 1978 and 1079 of 1979.

k. habbu r.b. hathikhanwala and b.r. aggarwala for the appellants. soli j. sorabjee attorney general  np  kapil
sibal additional solicitor general ms. indu
malhotra p. parmeshwaran and c.v.subba rao for the
respondent. the judgment of the companyrt was delivered by
ranganathan j. these two appeals involve a companymon
question and can be disposed of by a companymon judgment. the question is whether the appellant companypanies
 hereinafter referred to as the assessees  are
entitled to full draw back of the customs duty which
they had paid on the import of di-methyl-terephthalate
 shortly referred to as dmt  for manufacture of
polyester staple fibre yarn. the assessees companyverted the
dmt into polyester staple fibre in their factory at
thane and then sent it to bhilwara in rajasthan where
the rajasthan spinning and weaving mills blended it
with indigenumbers viscose staple fibre to spin out certain
varieties of blended yarn. it is companymon ground that the
product manufactured by this process was exported by
the assessees to imperial chemical industries pvt. limited singapore who had supplied the dmt free of charge
to the assessees. the answer to the question revolves
around the interpretation of section 75 of the
customs act 1962 read with the customs and
central excise duty draw back rules 1971.
section 75 of the customs act 1962 empowers
the central government by numberification in the official
gazette to direct in respect of goods of any class or
description manufactured in india and exported to any
place outside india that draw back should be allowed
of the duties of customs chargeable under the act on
any imported materials of a class or description used in
the manufacture of such goods in accordance with and
subject to the rules framed under sub-section  2  of
the said section. sub-section 2 which companyfers a rule
making power enacts that such rules may among other
things provide
 a  for the payment of draw back equal to the
amount of duty actually paid on the imported
materials used in the manufacture of the goods
or as is specified in the rules as the average
amount of duty paid on the materials of
that class or description used in the
manufacture of export goods of that class or
description either by manufacturers generally
or by any particular manufacturer
there is a similar provision in section 37 of the central
excises salt act 1944 enabling grant of draw back of
the excise duty paid in relation to such manufacture. the central government framed the customs and central
excise duties drawback rules 1971  hereinafter
referred to as the rules  in exercise of the powers
conferred on it under these two statutes. these are
composite rules under the above two provisions and
enable drawback being availed of in relation to
customs duty as well as in relation to duties of central
excise. some relevant provisions of these rules may be
quoted here. rule 3 in so far as it is relevant for our
present purposes reads as follows
rule 3 drawback  1  subject to the provisions
of-
 a  the customs act 1962  52 of 1962  and the
rules made thereunder.  b  the central excises and salt act 1944  1 of
1944  and the rules made thereunder and
 c  these rules
 a  drawback may be allowed on the export of goods
specified in schedule ii at such amount or at
such rates as
may be determined by the central government. xxx xxx xxx

in determining the amount or rate of drawback
under this rule the central government shall have
regard to
 a  the average quantity or value of each class
or description of the materials from which a
particular class of goods is ordinarily produced
or manufactured in india.  b  the average quantity or value of the imported
materials or excisable materials used for
production or manufacture in india of a particular
class of goods.  c  the average amount of duties paid on imported
materials or excisable materials used in the
manufacture of semis companyponents and intermediate
products which are used in the manufacture of
goods.  d  the average amount of duties paid on materials
wasted in the process of manufacture and catalytic
agents
provided that if any such waste or catalytic agent
is used in any process of manufacture or is sold
the average amount of duties on the waste or
catalytic agent so used or sold shall also be
deducted.  e  the average amount of duties paid on imported
materials or excisable materials used for
containing or packing the exported goods.  f  the average amount of duties of excise paid on
the goods specified in schedule 1 and
 g  any other information which the central
government may companysider relevant or useful for the
purpose. rule 4. revision of rates the central government
may revise the amounts or rates determined under
rule 3.
xxx xxx xxx

cases where amount or rate of drawback has
number been determined
 1  a  where numberamount or rate of drawback has
been determined in respect of any goods any
manufacturer or exporter of such goods may
before exporting such goods apply in writing
to the central government for the
determination of the amount or rate of
drawback therefor stating all relevant facts
including the proportion in which the
materials or companyponents are used in the
production or manufacture of goods and the
duties paid on such materials or companyponents. on receipt of an application under clause
 a  the central government shall after
making or causing to be made such inquiry as
it deems fit determine the amount or rate
of drawback in respect of such goods. cases where amount or rate of drawback
determined is low- l  where in respect of any such
goods the manufacturer or exporter finds that the
amount or rate of drawback determined under rule 3
or as the case may be revised under rule 4 for
that class of goods is less than three fourths of
the duties paid on the materials or companyponents
used in the production or manufacture of the said
goods he may make an application in writing to
the central govermment for fixation of the
appropriate amount or rate of drawback stating all
relevant facts including the proportion in which
the materials or companyponents are used in the
production or manufacture of the goods and the
duties paid on such materials or companyponents. on receipt of the application referred to
sub-rule  1  the central government may after
making or causing to be made such inquiry as it
deems fit allow payment of drawback to such
exporter at such amount or at such rate as may be
determined to be appropriate if the amount or rate
of drawback determined under rule 3 or as the
case may be revised under rule 4 is in fact less
than three fourth of such amount or rate
determined under this sub-rule. schedule ii to the numberification by which the rules were
promulgated listed the items the export of which entitles an
assessee to avail of the drawback facility. item 25 of the
list reads thus
synthetic and regenerated fibre textile yarn
thread twines companyds and ropes
it is companymon ground that the goods exported by the assessees
fall under item 25 above. there is also numbercontroversy that
the dmt imported by the assessees was used for the
manufacture of the above companymodity and that on the import
of the dmt the assessees have paid customs duty. the rates of drawback available in respect of various goods
were numberified by the central government in due companyrse. against serial number25 the numberification set out the rates of
drawback as follows
------------------------------------------------------------
serial sub si. description of rate of
number number goods drawback
------------------------------------------------------------

synthetic and regenerated
fibres and textile yarn/
thread twines companyds and
ropes
brand rate to be
2501 synthetic and regenerated fixed on an
fibre and textile yarn application from
thread twines companyds and the individual
ropes number elsewhere manufacturer
specified. exporter. 2502  a  yarn of above 21 bws companynts
or above 14 n.f. companynts spun
wholly out of either viscose rayon
fibre or acetate fibre or polyster
fibre polyamide fibre or acrylic
fibre or wool or from a companybination
of two and number more than two of the
above mentioned fibres or a
combination of any one of the above
mentioned fibres with either companyton
or silk  but excluding yarn spun out
of fibres obtained from fibre wastes
yarn waste or fabric wastes by
gernetting or by any other process

cellulosic fibre companytent rs. 1.80  rupees one and
paise eighty only  per kg. polyester fibre companytent rs.43.15  rupees forty
three and paise fifteen
only  per kg. acrylic fibre companytent rs.37.75  rupees thirty
seven and paise seventy
five only  per kg. polyamide fibre companytent rs. 16.40  rupees sixteen
and paise forty only  per
kg. wool companytents

in the worsted yarn of rs. 18.95  rupees
weaving quality made wool eighteen and paise
top. ninety five only  per
kg. in the worsted yarn of rs. 13.55  rupees
weaving quality number made from thirteen and paise fifty
wool top. five only  per kg. in the worsted hosiery rs. 16.65  rupees sixteen
yarn and worsted hand knitting and paise sixty five
yarn made from wool top. only  per kg. in the worsted hosiery yarn rs.11.25  rupees eleven
and worsted hand knitting yarn and paise twenty five
number made from wool top. only  per kg. bye companytent if the yarn is rs.0.85  eighty five
dyed paise only  per kg. xxx xxx xxx
it will be seen from the above table that the assessees
are entitled to a drawback of rs.43.15 per kg. of the
polyester fibre companytent of the yarn exported by them. we
are informed that this is the rate of central excise duty
payable in respect of the manufacture of yarn having
polyester fibre companytent. for reasons to be stated
presently the assessees had to pay numbercentral excise duty
for the manufacture and hence there was admittedly no
question of the assessee getting a drawback to this extent. the point raised by the assessee is that having paid
customs duty on the dmt  it was entitled to a drawback in
respect of the customs duty paid by it on the dmt. since
this was number included in the numberification of the central
government the assessees made an application to the
ministry of finance on 23.3.1977 requesting that drawback of
the entire customs duty may be sanctioned. this request
however was rejected by the central government by a
communication dated 12.3.1978. this companymunication was in the
following terms
under rule 3 of the customs and central excise
duties drawback rules 1971 all industry rates of
drawback on polyester viscose blended yarn have
been determined and annumbernced under serial number 2502
of the drawback schedule. the said rates have been
determined at the material time after taking into
consideration
 a  duty incidence of raw materials used in the
manufacture of viscose fibre plus the central
excise duty on viscose fibre and
 b  the central excise duty on polyester fibre in
respect of polyester yarn. however numberraw
material duty for manufacture of polyester yarn
was taken into account as the same  dmt  is
available indigenumbersly and is exempted from central
excise duty. for the rates determined effective
from 18.8.1977 however the duty incidence on dmt
has also been taken into companysideration on the basis
of weighted average of imported and indigenumbers
material. the assessees dissatisfied with this decision of the
central government preferred a writ petition in the delhi
high companyrt which was dismissed by the high companyrt on
19.5.80. hence the present appeals. at this stage it may be necessary to outline some
facts which may be relevant for appreciating the background
in which the assessees companynsel urged strongly the
equitable if number also legal claims of the appellant for
the drawback of the customs duty. companynsel claims that the
assessees were almost the first group of entrepreneurs in
india to manufacture polyester fibre yarn. they had been
fortunate enumbergh to obtain a companytract from the imperial
chemical industries singapore. by a letter dated 2.4.75
this companycern agreed to supply free of companyt the dmt required
for the manufacture of blended yarn companysisting of 67 per
cent polyester and 33 per cent viscose fibre. the dmt was
to be companyverted in polyester fibre blended with viscose
indigenumbersly and shipped to a customer of the ici in sri
lanka. thereupon on 2.6.75 the assessees obtained customs
clearance permits for import of 392 tons of dmt and also of
178 tons of viscose staple fibre. eventually however the
viscose staple fibre was obtained indigenumbersly and the
import permit to this extent was number utilised by the
assessee. at the
time of obtaining this permit the assessees also obtained
permission to companyvert the imported dmt into polyester
fibre under customs bond. the companydition attached to
the customs clearance permit was in the following
terms
the firm will companyvert the imported dmt
into polyester fibre under customs bond. the
firm will then move the polyester fibre so
manufactured and the imported viscose staple
fibre under bond to the bonded
warehouse of rajasthan spinning and weaving
mills bhilwara- messrs. rajasthan spinning
and weaving mills will then manufacture
under bond polyester viscose yarn on behalf
of the firm. the polyester viscose fibre yarn
will then be exported by the firm to the
overseas buyers who have supplied the dmt
and viscose staple fibre on ccp basis
or their numberinees
if these companyditions had been fulfilled the assessees would
have had numberproblems. the polyester fibre would have
been manufactured under customs bond and this would
have obviated payment of customs duty by the assessees. so also the production of the blended yarn at the
rajasthan spinning and weaving mills would have been
under central excise supervision and numberexcise duty would
have been payable on the manufacture. unfortunately
however the customs authorities were number in a
position to permit the companyversion of the dmt into
polyester fibre under customs bond for reasons which are
number at present relevant and which are number being
challenged in these proceedings. the assesseess
request for the manufacture of polyester fibre under
customs bond was declined by the customs authorities
on 2.4.1976. perhaps anticipating this difficulty the
association of polyester staple fibre manufacturers at
bombay made an application to the central government
on 26.3.1976 praying for exemption from customs duty
on dmt required for the manufacture of polyester staple
fibre. this letter points out
members of this association manufacture
polyester staple fibre. one of our members has
received an advance licence for the import of
dmt a photostat companyy of which we attach
herewith. this dmt is to be used for manufacture
in polyester fibre and the polyester fibre then
converted into yarn to be supplied against
export orders. our members wish to explore
possibility of larger export business in this
manner. indigenumbers supplies of both dmt and glycol
are
insufficient to meet the domestic market
requirements and export business can only be done
by import of the two materials. fulfilling export
orders by using advance licences as the one issued
to our member poses certain problems because the
licence stipulated manufacture under customs bond. you will appreciate the difficulty in
manufacturing under bond when the fibre for export
constitutes only a portion of the total
manufacture of the factory. if dmt and glycol
could be included in the schedule to the customs
numberification gsr 183 the procedural difficulties
in manufacturing under bond will number apply. exports of yarn made from raw materials obtained
against advance licences companyld earn companysiderable
foreign exchange because of the value added during
processing. one of the assessees also made a similar request and
eventually a numberification was issued on 2nd august 1976
under s. 25 of the customs act exempting dmt from customs
duty. the government of india also wrote to one of the
present appellants on 9.9.76 drawing attention to the said
numberification and stating that with the issue of this
numberification. the assessees problem would appear to have
been solved. this however was number companyrect. the
numberification exempted future imports of dmt from customs
duty but the assessees having imported the dmt earlier had
to clear the same after paying customs duty thereon. hence
their request for a drawback of the customs duty already
paid by them the refusal of which has led to the present
litigation. on behalf of the appellants it is companytended that the
customs act companytains provisions enabling thd government
either to exempt goods under section 25 from the levy of
customs duty at the time of import or failing this to
permit a drawback of customs duty paid in the event
of the companyditions set out in section 75 being
fulfilled. in the present case an exemption under
section 25 of the customs act was in fact numberified
but unfortunately this happened only in august
1976. by this time the assessees had already
imported the dmt. this they were obliged to do
because of a time-bound programme for export of the
manufactured fibre to sri lanka. companynsel states
that from the very outset the assessees had
proceeded on the footing that they would be
obtaining exemption from customs and excise duty
because apart from getting some companyversion charges
from the ici their own margin of profit on the
transaction was number substantial. that is why even
at the time of obtaining the customs clearance
permit they had sought for permission to companyvert
dmt into polyester under customs bond. if that had
been
done there would have been numbernecessity to pay customs
duty at all. unfortunately because the department
lacked facilities to supervise such an operation the
attempt of the assessees was only partially successful
in that they were able to get only the production of
the blended fibre done under central excise supervision. the initial stage of companyversion from dmt to polyester
fibre companyld number be done under customs bond. it is
pointed out that the government of india had exempted
dmt from customs duty only on the basis of the
representations made by the assessees and it is urged that
the refusal to grant drawback of customs duty to
assessees is wholly unjustified. the object of s. 75 of the customs act read with s. 27
of the central excise act is obviously to provide that in
cases where certain goods are imported for companyplete
utilisation in the manufacture of goods which are
exported the importer should be able to obtain relief
in respect of customs and excise duties. in the present case
there is numbercontroversy that the d.m.t. imported by the
assessee was utilised for the manufacture of polyester
staple fibre and that the final product was fully
exported to sri lanka. the numberification made under
the rules framed for this purpose however provides
only for a drawback in respect of the excise duty
involved in the manufacture of polyester staple fibre
but number the customs duty on the raw material actually
imported. sri habbu learned companynsel companytends that
this numberification in fact is companytrary to the provision
contained in rule 3 which obliges the government in
determining the amount or rate of drawback to have
regard among other things to the amount of duties
paid on imported or excisable material used in the
manufacture of the exported goods. he submits that in
so far as the rates prescribed by the central
government do number take into account the element
of import duty on dmt the fixation is number in accordance
with the rule. according to him therefore this
casefalls under rule 6 which enables an assessee to
apply to the central government to determine a
drawback where numbere has been determined. the
central government he submits was in error in rejecting
the assessees application as one falling under rule 7
and therefore number maintainable both in law and
equity. having heard the learned companynsel for the
assessees at some length we are of opinion that the
high companyrt was right in rejecting the assessees
contentions. we think that the assessees arguments
are based on a basic misapprehension that under the
acts and rules a manufacturer is automatically
entitled to a drawback of the entire customs and
excise duties paid by him if the terms and
conditions of
s. 75 are fulfilled. though s. 75 of the customs act and s.
37 of the central excises salt act empower the government
to provide for the repayment of the customs and excise
duties paid by individual manufacturers also the rules as
framed  rule 3 in particular  provides only for a refund of
the average amount of duty paid on materials of any
particular class or description of goods used for the
manufacture of export goods of that class or description by
manufacturers generally except to the extent prescribed
under rule 7  to be numbericed presently . the rules do number
envisage a refund of an amount arithmetically equal to the
customs duty or central excise duty which may have been
actually paid by an individual importer-cum-manufacturer. if that had been the statutory intendment it would have
been simple to provide that in all cases where imported raw
materials are fully used in the manufacture of goods which
are exported the assessee would be entitled to a drawback
of the customs or excise duties paid by him for the import
or on the manufacture. on the other hand s. 75 2  requires
the amount of drawback to be determined on a companysideration
of all the circumstances prevalent in a particular trade and
the fact situation relevant in respect of each of various
classes of goods imported and manufactured. the need for
providing an elaborate process of determination as envisaged
in rule 3 is this. there may be different manufacturers of
a particular manufactured item. some of them may be using
indigenumbers material and some may be importing some of the
raw material. similarly in the process of manufacture
also there may be difference between manufacturer and
manufacturer. that is why the drawback rules provide for a
determination of the drawback after taking into account the
average amount in respect of each of the various items
specified in rule 3 in relation to each type of goods listed
in schedule ii. the numberification issued also determines the
composite drawback available in respect of both customs and
excise duties to importers-cum-manufacturers in respect of
various categories of goods. in other words the amount of
drawback is number intended to be the amount of the duties that
may have been paid by individual manufacturers it is to be
determined by companysidering the overall position prevalent in
the companyntry in respect of each of the categories of trade in
the goods specified in schedule ii. we think that if this
basic principle is understood the decision of the
govermment would become intelligible and rational. there is numbercontroversy that in this case the goods
exported fall under item 25. learned companynsel sought to
contend that the goods here fall under sub-item 2501 but
this is clearly untenable. sub-item 2501 represents a
residuary category which will number be attracted to the
goods here which clearly fall under sub-item 2502. the
numberification prescribes different amounts of drawback
under this itm depending on the companyposition of the
yarn and the nature of its companytents. it specifies an
amount of rs.43.15 per kg. as the relief by way of
drawback available against the goods with which we
are companycerned which fall under clause  b  of item 2502.
this much indeed was companyceded before the high companyrt. once we understand the principles on which and the
scheme according to which the rates of drawback are to be
and are determined as explained earlier the plea of the
appellants that the amount of drawback determined is
numberhing more than the excise duty payable on
manufacture of blended fibre with polyester fibre companytent
and that the numberification has erred in overlooking
the customs duty paid on imported dmt is
wholly untenable. we say this for two reasons. first the rates prescribed companystitute a companyposite rate
of drawback fixed having regard to the liabilities under
the customs act as well as the central excises salt
act. it would number be companyrect in principle to bifurcate
the amount so fixed into its two companystituents and to
say merely because the amount fixed is equal to one of the
duties that the other has number been taken into
account. in theory the drawback determined companyld have
taken into account both sets of duties in part only. it cannumber be said to be merely the customs duty
drawback or central excise duty drawback. though it does
appear that the various rates of drawback prescribed
under item 2502 are equal to the rates of excise duty
payable on the manufacture of the various items
referred to therein the nature of exemption granted is one
of relief under both enactments. it is immaterial
whether this quantum of relief benefits the assessee in
respect of one or other or both of the levies which he
has to discharge. the attempt to identify and
correlate the rebate granted to the central excise duty
paid does number therefore appear to be companyrect in
principle. but this ground apart we think there is force in the
point made by the learned companynsel for the union of india
and accepted by the high companyrt that at the time when
these drawback rates were fixed the government of
india took into account both the import duty as well as
the excise duties which would be payable on the
manufacture of the goods the export of which was
intended to be encouraged. after examining the
condition in the trade it was found that d.m.t. was
easily available in india at that time and that therefore
it would number be necessary to grant any relief in respect
of drawback of customs duty on the imported material
because that would only result in assessees
attempting unnecessarily to import a raw material which was
available in the companyntry itself. in fact this is the
aspect on which the delhi high companyrt has laid companysiderable
emphasis. learned companynsel for the appeallants companytends
that this is factually and that this is clearly shown by the
very fact that government of india itself in august 1976
decided to grant exemption in respect of customs duty for
the import of d.m.t. he submits that if d.m.t. had been
easily available indigenumbersly at that time the question of
granting exemption under s. 25 would number have appealed to
the government at all. he therefore submits that in
fixing the rate of drawback the central government had
proceeded on the footing that numberimport duty would be
payable on the dmt and that it will be sufficient to grant
relief in respect of central excise duty alone. we find
that on this aspect the position is number so simple as
submitted by the learned companynsel for the appellants. we
have already extracted reply of the government of india to
the assessees representation which clearly mentions that
dmt is available indigenumbersly and that therefore numberduty
in manufacture of polyester yarn was taken into account. this is a statement of fact and there is numbermaterial placed
before us to companytradict the same except for the company-
respondence referred to earlier. if one looks carefully at
the companyres-pondence one will find that it does number support
the assesseescase. for one thing the memorandum submitted
by the association of march 1976 itself proceeds on the
footing that dmt is available locally but number sufficient to
meet the domestic market requirments. this clearly is a
reference to something which happened after the present
appellants had imported their goods and started the
manufacture. indeed it is their claim that they were fore-
runners in this field. fol-lowing up on the assessees
attempt to obtain imports of dmt and exporting the goods
manufactured other polyester staple fibre manufacturers
also proposed to explore the possibilities of such imports
and exports and what the letter says would only appear to be
that the indigenumbers supplies of dmt and glycol may number be
enumbergh to meet the domestic market requirements if the
business is so expanded. by the time the numberification
fixing the rates was issued import duty on dmt had been
removed and therefore there was numberpurpose in granting a
drawback of customs duty. in these circumstances the
customs duty was rightly number taken into account in fixing
the rate of drawback. the letter of the government dated
9.9.76 is only an answer to the assessees prayer that its
problem may be solved by granting an exemption for dmt from
customs duty and refers only to the position after the
numberification of exemption. it is number reply to the
assessees representation in respect of the past which was
filed only much later in 1977. the companyrespondence in the
case is therefore of no
help to the assessees. it may also be pointed out that the
assessees appear to have imported dmt number because it was
number locally available but only because it was able to get it
free of companyt from the ici which was a benefit which other
manufacturers if any companyld number have enjoyed. we are
therefore of opinion that high companyrt was right in
concluding that the rate of drawback in respect of the goods
in ques-tion was fixed after taking into companysideration the
aspect of customs duty payable in respect of dmt and that a
conscious decision was taken that numberrelief in this respect
should be granted as dmt was available in the companyntry
itself. it cannumbertherefore be said that this is a case
where the fixation is companytrary to the terms of rule 3 and
that the assessees application for determination of a rate
in his case should be taken as an application under rule 6.
rule 6 is also inapplicable for the reason that an
application under rule 6 should be made before the export of
the manufactured goods which does number seem to be the case
here. the assessees reliance on rule 6 therefore fails. it is true the fixation of rates of drawback on the
average basis indicated in rule 3 companyld work hardship in
individual cases. provi-sion for this companytingency is made
in rule 7. the assessees application was rightly treated
as one made under this rule and they companyld if at all seek
relief only if their case fell within its terms. this
rule unfortu-nately does number provide for relief in every
case where an individual manufacture has to pay customs and
excise duty to a larger extent than that determined for his
class of goods. relief is restricted only to cases when the
margin of difference is substantial and to the extent
specified in rule 7. the high companyrt has discussed this
point at length and demonstrated by giving necessary
figures how the assessees case does number fulfill the term
of the rule and this companyclusion is number in fact challenged
by the learned companynsel for the appellants. the
government was therefore right in rejecting the
appellants request made under section 7 of the drawback
rules. for the reasons above mentioned we agree with the
high companyrt that the order of the central government
rejecting the assesseesapplication was well founded and
cannumber be interfered with. learned companynsel for the
appellants brings to our numberice a manual published by the
directorate of publication. ministry of finance department
of revenue explaining the scope of the rules as well as two
numberifications issued by the government on 9.6.1978 and
1.2.1982 respectively and submits that the present case
falls within the terms of these numberifica-tions. we are
constrained to point out that these are numberifications issued
subsequent to the period of the companytroversy before us also
this
is material which was number placed before the authorities or
the high companyrt. we therefore find ourselves unable to
permit the assessee to rely upon them at this late stage. however having regard to the circumstances and the
subsequent policy in the above rules we think it is a fit
case in which the central government companyld companysider whether
on equitable grounds the assessee can be given relief in
respect of the customs duty on dmt paid by it. in this
context it is worthwhile numbering that the assessee saved
foreign exchange for the companyntry by importing dmt free of
cost. the entire manufactured product has also been
exported and earned foreign exchange. the appellants also
apparently gave impetus to other manufacturers for the
export of blended fibre on large scale. if only the
appellants had imported the dmt a few months later they
would have been entitled to exemption from customs duty and
would number have suffered the present handicap. they also did
obtain the permission of the government to companyvert dmt into
polyester fibre under customs bond but this companyld number be
implemented for reasons beyond their companytrol. having regard
to all these circumstances it would seem only just and fair
that the assessees should number be denied a benefit of which
all other persons have since availed of.


civil appellate jurisdiction civil appeals number. 1567 of
1968 585 to 1026 and 1027 to 1082 of 1969.
appeals by special leave from the orders dated march 28
1968 and july 20 1968 of the labour companyrt  11  u.p. lucknumber in misc. cases number. 102 of 1965 etc. c. chagla harish chandra h. k. purl and bishambar lal
for the appellant  in all the appeals . p. goyal and v. c. prashar for respondent number 1  in
all the appeals . p. nayar for the attorney-general  in c.as. number. 585 to 1026 and 1027 to 1082 of 1969 . the judgment of the companyrt was delivered by
shah j. these three groups of appeals arise out of orders
made by the presiding officer labour companyrt  11  u.p. lucknumber awarding retrenchment companypensation to certain
employees of the u.p. electric supply companypany limited  in
liquidation . in the last group of appeals orders of the
labour companyrt awarding in addition thereto companypensation for
earned leave number enjoyed by the employees are also
challenged. the u.p. electric supply companypany limited-hereinafter called the
company-held two licences issued in 1914 by the government
of u.p. for generating and distributing electricity within
thetowns of allahabad and lucknumber. the periods of the
licenses expired in 1964. pursuant to the provisions of
paragraph 12 1  in each of the said licenses and in exercise
of the power under s. 6 of the indian electricity act 1910
the state electricity board u.p.-hereinafter referred to as
the board took over the undertaking of the companypany at
allahabad and lucknumber from the mid-night of september 16
1964. the companypany accordingly
ceased to carry on the business of generation and
distribution of electricity in the areas companyered by the
original licences. all the workmen of the undertakings at
allahabad and lucknumber were taken over in the employment of
the board with effect from september 17 1964 without any
break in the companytinuity of employment. on december 22 1964 443 workmen employed in the allahabad
undertaking filed before the labour companyrt applications
under s. 6-h 2  of the u.p. industrial disputes act 1947
for payment of retrenchment companypensation and salary in lieu
of numberice. the work-men submitted that fresh letters of
appointment were issued by the board on september 16 1964
taking them in the employment of the board with effect from
september 17 1964 in the posts and positions which they
previously held but without giving credit for their past
services with the companypany. the workmen companytended that they
were entitled to retrenchment companypensation and salary in
lieu of numberice and prayed for companyputation of those benefits
in terms of money and for directions to the companypany to pay
them the amount so companyputed. a group of 56 workmen employed at the companypanys undertaking
at lucknumber also submitted applications under s. 6h 2  of the

p. industrial disputes act for payment of retrenchment
compensation and salary in lieu of numberice and also for
compensation for accumulated earned leave number enjoyed by
them till september 16 1964.
in the applications filed by the workmen of the allahabad
undertaking the labour companyrt awarded to each workman
retrenchment companypensation at the rates specified in the
order and also one months salary and companyts. to each
workman of the lucknumber undertaking the labour companyrt awarded
retrenchment companypensation at the rate specified salary in
lieu of one months numberice and also wages for 30 days for
earned leave number enjoyed by the workman before the closure
of the undertaking and companyts. the companypany has appealed to
this companyrt against the orders with special leave. the orders for payment of retrenchment companypensation are
resisted by the companypany on two grounds-

that the labour companyrt was incompetent to
entertain and decide the applications for
awarding retrenchment companypensation and

that the workmen were number in fact
retrenched and in any event since the workmen
were admitted to the service of the board
without break in companytinuity and on terms number
less favourable than the terms enjoyed by them
with the company-
pany the companypany was under numberliability to
pay retrenchment companypensation. some argument was advanced before us that in determining
matters relating to the award of retrenchment companypensation
the provisions of the industrial disputes act 1947 and number
the u.p. industrial disputes act 1947 apply. the question
is academic because on the points in companytroversy between
the parties the statutory provisions of the industrial
disputes act 1947 and the u.p. industrial disputes act
1947 are substantially the same. we may however briefly
refer to this argument since relying upon a judgment of
this companyrt to be presently numbericed companynsel for the workmen
insisted that s. 33-c 2  of the industrial disputes act
alone may apply. after the enactment of the industrial disputes act 1947 by
the dominion parliament the u.p. industrial disputes act
1947 was enacted by the provincial legislature. the scheme
of them two acts is substantially the same. chapter v-a
relating to layoff and retrenchment was added in the
industrial disputes act by act 43 of 1953 with effect from
october 24 1953. from time to time amendments were made in
the provisions of the act. by
s. 25-j  2  it was provided
for the removal of doubts it is hereby
declared that numberhing companytained in this
chapter shall be deemed to affect the
provisions of any other law for the time being
in force in any state in so far as that law
provides for the settlement of industrial
disputes but the rights and liabilities of
employers and workmen in so far as they relate
to lay-off and retrenchment shall be deter-
mined in accordance with the provisions of
this chapter. after this sub-section was incorporated in the
industrial disputes act 1947 a group of
sections including s. 6-r were incorporated in
the u.p. industrial disputes act by u.p. act 1
of 1957. section 6-r 2  provided
for the removal of doubts it is hereby
declared that numberhing companytained in sections 6-
h to 6-r shall be deemed to affect the
provision of any other law for the time being
in force so far as that law provides for the
settlement of industrial disputes but the
rights and liabilities of employers and
workmen in so far as they relate to lay-off
and retrenchment shall be determined in
accordance with the provisions of sections 6-h
to 6-q. by virtue of s. 6-r 2  the provisions of the u.p. industrial
disputes act prima facie apply in the matters of lay-off
and retrenchment because under the seventh schedule to the
constitution
legislation in respect of trade unions industrial and
labour disputes falls within entry 22 of the companycurrent
list and both the state and the union are companypetent to
legislate in respect of that field of legislation. whereas
by adding s. 25-j 2  it was enacted that under the
industrial disputes act 1947 the rights and liabilities of
employers and workmen in so far as they relate to lay-off
and retrenchment shall be determined in accordance with the
provisions of ch. v-a of that act by the u.p. act as
amended by act 1 of 1957 s. 6-r 2  enacts that the rights
and liabilities of employers and workmen relating to lay-off
and retrenchment shall be determined in accordance with the
provisions of ss. 6-j to 6-q. companypetence of the state legislature to enact s. 6-r 2  is
number denied. act 1 of 1957 received the assent of the
president and by virtue of art. 254 2  of the companystitution
s. 6-r 2  of the u.p. act prevails numberwithstanding any
prior law made by the parliament. the provisions of the

p. act including s. 6-r 2  therefore apply in determining
the rights and obligations of the parties in respect of
retrenchment companypensation. the observation to the companytrary
made by this companyrt in rohtak hissar districts electric
supply companypany v. state of u.p.  1  which primarily raised a
dispute relating to the validity of certain model standing
orders proceeded upon a companycession made at the bar and
cannumber be regarded as decisive. since the relevant
provisions of the two acts on the matter in companytroversy in
these groups of appeals are number materially different we do
number think it necessary in this case to refer the question to
a larger bench. we accordingly propose to refer only to the provisions of
the u.p. industrial disputes act 1947. section 4-a of the

p. act authorises the state government to companystitute one
or more labour companyrts for the adjudication of industrial
disputes relating to any matter specified in the first
schedule and for performing such other functions as may be
assigned to them under the act. the items specified in the
first schedule are-

the propriety or legality of an order
passed by an employer under the standing
orders
2 . the application and interpretation of
standing orders
3 . discharge or dismissal of workman
including reinstatement of or grant of relief
to workmen wrongfully dismissed

withdrawal of any customary companycession
or privilege
 1  1966 11 l.l.j. 330.

illegality or otherwise of a strike or
lock-out and

all matters other than those specified
in the second schedule. section 4-b authorises the state government to
constitute one or more industrial tribunals
for the adjudication of industrial disputes
relating to any matter whether specified in
the first schedule or the second schedule. item 10 of the second schedule relates to
retrenchment of workmen and closure of
establishment. prima facie disputes relating
to retrenchment of workmen and closure of
establishment fall within the exclusive
competence of the industrial tribunal and number
within the companypetence of the labour companyrt
constituted under s. 4-a. the companypany had
expressly raised a companytention that they had
number retrenched the workmen and that the
workmen had voluntarily abandoned the
companys service by seeking employment with
the board even before the companypany closed its
undertaking. the workmen companytended by their petitions filed
before the labour companyrts that they were
retrenched the companypany companytended that the
workmen had voluntarily abandoned the
employment under the companypany because they
found it more profitable to take up employment
under the board without any break in the same
post and on the same terms and companyditions on
which they were employed by the companypany. this
clearly raises the question whether there was
retrenchment of workmen which gave rise to
liability to pay retrenchment companypensation. a
dispute relating to retrenchment is
exclusively within the companypetence of the
industrial tribunal by virtue of item 10 of
the second schedule to the u.p. industrial
disputes act and is number within the companypetence
of the labour companyrt. section 6-h of the u.p. act provides

where any money is due to a workman from
an employer under the provisions of sections
6-j to 6-r or under a settlement or award or
under an award given by an adjudicator or the
state industrial tribunal appointed or
constituted under this act before the company-
mencement of the uttar pradesh industrial
disputes  amendment and miscellaneous
provisions  act 1956 the workman may
without prejudice to any other mode of
recovery make an application to the state
government for the recovery of the money due
to him and if the state government is
satisfied that any amount is so due it shall
issue a certificate for that amount to the
collector who shall proceed to recover the
same as if it were an arrear of land revenue. where any workman is entitled to receive
from the employer any benefit which is capable
of being companyputed in terms of money the
amount at which such
benefit should be companyputed may subject to any
rules that may be made under this act be
determined by such labour companyrt as may be
specified in this behalf by the state
government and the amount so determined may
be recovered as provided for in sub-section
 1 .  3
under s. 6-h 2  the labour companyrt was companypetent to determine
what each workman was entitled to receive from the employer
by way of retrenchment companypensation payable in terms of
money and the denial of liability by the companypany did number
affect the jurisdiction of the labour companyrt. in several decisions of this companyrt the inter-relation
between sub-ss.  1   2  of s. 33-c  which are
substantially in the same terms as sub-ss.  1   2  of s.
6-h of the u.p. industrial disputes act  was examined. it
was held by this companyrt in the central bank of india limited v.

s. rajagopalan etc.  1  that the scope of s. 33-c 2  is
wider than that of s. 33-c 1 . claims made under s. 33-c 1
can only be those which are referrable to settlement award
or the relevant provisions of ch. v-a but those
limitations are number to be found in s. 33-c 2 . the three
categories of claims mentioned in s. 33-c 1  fall under s.
33-c 2  and in that sense s. 33-c 2  can itself be deemed to
be a kind of execution proceeding but it is possible that
claims number based on settlements awards or made under the
provisions of ch. v-a may also be companypetent under s. 33-
c 2 . elaborating this thesis gajendragadkar j. who
delivered the judgment of the companyrt observed  pp. 155-156
there is numberdoubt that the three categories
of claims mentioned in s. 33c 1  fall under s.
33c 2  and in that sense s. 33c 2  can itself
be deemed to be a kind of execution
proceeding but it is possible that claims number
based on settlements awards or made under the
provisions of chapter v-a may also be
competent under s. 33c 2  and that may
illustrate its wider scope. we would
however like to indicate some of the claims
which would number fall under s. 33c 2  because
they formed the subject matter of the appeals
which have been grouped together for our
decision along with the appeals with which we
are dealing at present. if an employee is
dismissed or demoted and it is his case that
the dismissal or demotion is wrongful it
would number be open to him to make a claim for
the recovery of his salary or wages under s.
33c 2 . his demotion or dismissal may give
rise to an industrial dispute which may
 1  1964 3 s.c. 140.
be appropriately tried but once it is shown
that the employer has dismissed or demoted
him a claim that the dismissal or demotion is
unlawful and therefore the employee
continues to be the workman of the employer
and is entitled to the benefits due to him
under a pre-existing companytract cannumber be made
under s. 33c 2 . the same view was reiterated in bombay gas company limited v. gopal
bhiva and others 1 . mr. goyal on behalf of the workmen however companytended that
in a recent judgment of this companyrt a different view has been
expressed. he invited our attention to the board of
directors of the south arcot electricity distribution company
ltd. v. n. k. mohammad khan etc. 2 . in that case the
electricity undertaking was taken over by the government of
madras in exercise of the powers companyferred by the madras
electricity supply undertakings  acquisition  act 1954 and
the employees of the undertaking were taken over by the new
employer. the employees claimed retrenchment companypensation
from the old employer under s. 25ff of the industrial
disputes act 1947. it was urged before this companyrt that the
labour companyrt was incompetent to decide the claim for
retrenchment companypensation. this companyrt observed that s.
25ff b  applied as the terms of service under the new
employer were less favourable than those under the old
employer and under the terms of ss. 15  1    2  of the
acquisition act and ss. 9a and 10 of the industrial
employment  standing orders  act 1946 liability to pay
retrenchment companypensation rested upon the previous employer
and on that account the labour companyrt was companypetent to
entertain the petitions under s. 33c 2 . the language of s.
25ff in the view of the companyrt made it perfectly clear that
if the right to companypensation accrued under the act the
workmen became entitled to receive retrenchment
compensation when under the madras act the undertaking
stood transferred to the state government from the companypany. referring to the companytention that the labour companyrt was number
competent to determine the liability to day retrenchment
compensation where the liability itself was denied the
court referred to the judgments of this companyrt in chief
mining engineer east india companyl company limited v. rameswar and
others 3  state bank of bikaner  4  and jaipur v. r. l.
khandelwal punjab national bank limited v. k. l. kharbanda 5
central bank of india v. p. s. rajagopalan and others 6
and bombay gas companypany limited v. gopal bhiva and others 1
and proceeded to observe that the right
 1  1964
 2  1969 2 s.c.r. 902.  3  1968 1 s.c.r. 140.  4  1968 1 l.l.j. 589.  5  1962 supp. 2 s.c.r. 977.  6  1964 3 s.c.r. 140.
which has been claimed by the various workmen in their
applications under s. 33c 2  of the act was a right which
accrued to them under s. 25ff of the act and was an existing
right at the time when those applications were made and the
labour companyrt had jurisdiction to decide in dealing with the
applications under that provision whether such a right did
or did number exist. the mere denial of that right by the
company it was said companyld number take away its jurisdiction
and that the order of the labour companyrt was companypetently made. the decision in the central bank of india v. p. s. rajago-
palan and others 1  to which we have already referred
makes it clear that all disputes relating to claims which
may be companyputed in terms of money are number necessarily within
the terms of s. 33c 2 . again in chief mining engineer
east india companyl company limited v. rameswar and others  2   shelat
j. observed
 that the right to the benefit which
is sought to be companyputed under s. 33c 2  must
be an existing one that is to say already
adjudicated upon or provided for and must
arise in the companyrse of and in relation to the
relationship between an industrial workman and
his employer. since the scope of sub-s.  2
is wider than that of sub-s.  1  and the sub-
section is number companyfined to cases arising under
an award settlement or under the provisions
of ch. v-a there is numberreason to hold that a
benefit provided for under a statute or a
scheme made thereunder without -there being
anything companytrary under such statute or s.
33c 2  cannumber fall within sub-s.  2 . companysequently the benefit provided in the
bonus scheme made under the companyl mines provi-
dent fund and bonus schemes act 1948 which
remains to be companyputed must fall under sub-s.
 2  and the labour companyrt therefore had
jurisdiction to entertain and try such a
claim it being a claim in respect of an
existing right arising from the relationship
of an industrial workman and his employer. that judgment clearly indicates that in order that a claim
may be adjudicated upon under s. 3 3c  2  there must be an
existing right and the right must arise under an award
settlement or under the provisions of ch. v-a or it must
be a benefit provided by a statute or a scheme made
thereunder and there must be numberhing .contrary under such
statute or s. 3 3c  2 . but the possibility of a mere claim
arising under ch. v-a is number envisaged by the companyrt in that
case as companyferring jurisdiction upon the labour companyrt to
decide matters which are essentially within the jurisdiction
of the industrial tribunal.  1  1964 3 s.c.r. 140.  2  1968 1 s.c.r. 140.
the legislative intention disclosed by ss. 33 c   1   and 3
3 -c  2  is fairly clear. under s. 33-c 1  where any money
is due to a workman from an employer under a settlement or
an award or under the provisions of ch. v-a the workman
himself or any other person authorised by him in writing in
that behalf may make an application to the appropriate
government to recover of the money due to him. where the
workman who is entitled to receive from the employer any
money or any benefit which is capable of being companyputed in
terms of money applies in that behalf the labour companyrt may
under s. 33-c 2  decide the questions arising as to the
amount of money due or as to the amount at which such
benefit shall be companyputed. section 33-c 2  is wider than s.
33c 1 . matters which do number fall within the terms of s.
33c 1  may if the workman is shown to be entitled to
receive the benefits fall within the terms of s. 33c 2 . if the liability arises from an award settlement or under
the provisions of ch. v-a or by virtue of a statute or a
scheme made thereunder mere denial by the employer may number
be sufficient to negative the claim under s. 33-c 2  before
the labour companyrt. where however the right to retrenchment
compensation which is the foundation of the claim is itself
a matter which is exclusively within the companypetence of the
industrial tribunal to be adjudicated upon a reference it
would be straining the language of section 33c 2  to hold
that the question whether there has been retrenchment may be
decided by the labour companyrt. the power of the labour companyrt
is to companypute the companypensation claimed to be payable to the
workmen on the footing that there has been retrenchment of
the workmen. where retrenchment is companyceded and the only
matter in dispute is that by virtue of s. 25ff numberliability
to pay companypensation has arisen the labour companyrt will be
competent to decide the question. in such a case the
question is one of companyputation and number of determination of
the companyditions precedent to the accrual of liability. where however the dispute is whether workmen have been
retrenched and companyputation of the amount is subsidiary or
incidental in our judgment the labour companyrt will have no
authority to trespass upon the powers of the tribunal with
which it is statutorily invested. in the unreported
judgment of this companyrt in the board of directors of the
south arcot electricity distribution company limited v. n. k.
mohammed khan etc.  1  apparently the only argument advanced
before this companyrt was that s. 25ff applied to that case
having regard to the fact that the terms of employment under
the new employer were number less favourable than those
immediately applicable to them before the transfer and the
court proceeded to hold that the labour companyrt was companypetent
to determine the companypensation.  1  1969 2 s.c.r. 902.
the finding that the labour companyrt was incompetent to
decide .the applications of the workmen would be sufficient
to dispose of the appeals before us. but other arguments
were advanced before us and which have an important bearing
on the claims made we propose briefly to deal with these
arguments. assuming that the labour companyrt had jurisdiction to determine
the liability of the companypany to pay retrenchment
compensation numberorder awarding retrenchment companypensation
could still be made without recording a finding that there
was retrenchment of the workmen and companypensation was payable
for retrenchment. section 6-0 of the u.p. industrial
disputes act  which in its phraseology is somewhat different
from s. 25ff of the industrial -disputes act  provides
numberwithstanding anything companytained in section
6-n numberworkman shall be entitled to
compensation under that section by reason
merely of the fact that there has been a
change of employers in any case where the
ownership or management of the undertaking in
which he is employed is transferred whether
by agreement or by operation of law from one
employer to anumberher
provided that-
 a  the service of the workman has number been
interrupted by reason of the transfer
 b  the terms and companyditions of service
applicable to the workman after such transfer
are number in any way less favourable than those
applicable to him immediately before the
transfer and
 c  the employer to whom the ownership or
management of the undertaking is so
transferred is under the terms of the
transfer or otherwise legally liable to pay
to the workman in the event of his
retrenchment companypensation on the basis that
his service has been companytinuous and has number
been interrupted by the transfer. in the present groups of appeals it is companymon ground that
-there was numberinterruption resulting from the undertaking
being -taken over by the board. the agreements between the
board and the workmen to admit the workmen into employment
of the board were reached before the undertakings of the
company were taken over. the companypany companytended that the
terms and companyditions of service applicable to workmen after
the transfer were number in any way less favourable to the
workmen than those applicable to them immediately before the
undertakings were taken over and that the employer to whom
the ownership or manage-
ment of the undertakings were so transferred was under the
terms of the transfer or otherwise legally liable to pay to
the workmen in the event of their retrenchment
compensation on the basis that their services had been
continuous and had number been interrupted by the taking over. the workmen denied that claim. the labour companyrt companyld award
compensation only if it determined the matter in companytroversy
in favour of the workmen it companyld number assume that the
conditions of the proviso to s. 6-0 were fulfilled. section
6-0 is in terms negative. it deprives the workmen of the
right to retrenchment companypensation in the companyditions
mentioned therein. the companypany asserted that the companyditions
precedent to the exercise of jurisdiction did number exist. the workmen asserted the existence of the companyditions. without deciding the issue the labour companyrt companyld number
compute the amount of companypensation payable to the workmen. on the assumption that the workmen had been retrenched and
their claim fell within the proviso to s. 6-0.
it was urged by mr. goyal on behalf of the workmen that this
plea was number raised or argued before the labour companyrt and
it cannumber be permitted to be raised in this companyrt. but this
contention was raised in the reply filed by the companypany and
the judgment of the labour companyrt does indicate that its
authority to decide that question was disputed. we are
unable to hold that the objection though raised was number
urged before the labour companyrt and on that account to
confirm the decision of the labour companyrt which until the
matter in companytroversy was decided companyld number be rendered. even if therefore the labour companyrt was companypetent to
entertain the dispute relating to award of retrenchment company-
pensation the order made by the labour companyrt must be set
aside. one more companytention raised at the bar by mr. chagla for the
company may be companysidered. it was urged that the obligation
to pay retrenchment companypensation in the event of liability
arising must in law be deemed to be taken over by the board. in the board of directors of the south arcot electricity
distribution companypany limited v. n. k. mohammad khan etc.  1
to which we have already made a reference it was companytended
on behalf of the electricity companypany that the liability to
pay retrenchment companynpensation did number fall on the licensee
but on the madras government. this companyrt held having
regard to the scheme of the act that if retrenchment
compensation is payable it is the original undertaking
which remains liable and number the undertaking which takes
over the business. companynsel however relied upon ss. 6 and 7
of the indian electricity act 1910 in support of his plea
that the liability to pay retrenchment companypensation rests
upon the
 1  1969 2 s.c.r. 902. 14sup. cl/69-4
undertaking which takes over the undertaking. section 6 of
the indian electricity act 1910 provides

where a license has been granted to pay
person number being a local authority the state
electricity board shall---
 a  in the case of a license granted before
the companymencement of the indian electricity
 amendment  act 1959 on the expiration of
each such period as is specified in the
license and
 b
have the option of purchasing the undertaking
and such option shall be exercised by the
state electricity board serving upon the
licensee a numberice in writing of number less than
one year requiring the licensee to sell the
undertaking to it at the expiry of the
relevant period referred to in this sub-
section. ln the present case numberice was given of
termination of the license after the expiry of
the period of the original license and the
board took over the undertaking of the
company. section 7 of the indian electricity
act provides
where an undertaking is sold under
section  6 then upon the companypletion of the
sale or on the date on which the undertaking
is delivered to the intending purchaser under
sub-section  6  of section 6

the undertaking shall vest in the
purchaser  free from any debt
mortgage or similar obligation of the licensee
or attaching to the undertaking
provided that any such debt mortgage or
similar obligation shall attach to the
purchase money in substitution for the
undertaking

the rights powers authorities duties
and obligations of the licensee under his
license shall stand transferred to the
purchaser and such purchaser shall be deemed
to be the licensee
provided that where the undertaking is sold or
delivered to a state electricity board or the
state government the license shall cease to
have further operation. it is clear that when the undertaking vests in the
purchaser any debt mortgage or similar obligation attaches
to the purchase money in substitution of the undertaking. the liability to pay retrenchment companypensation is a debt
if it arises on transfer it will attach to the purchase
money payable to the companypany in substitution for the
undertaking. sections 6 and 7 of the indian electricity act
do number support the case of the companypany that the liability is
enforceable against the board after it takes over the
undertakings. the provisions of ss. 57 and 57a of the indian electricity
 supply  act 1948 also do number assist the case of the
company. sections 57 57a of the electricity  supply  act
1948 deal with the licensees charges to companysumers and the
rating companymittees. by the sixth schedule dealing with
financial principles and their application it is provided
by cl. tv that certain amount shall be appropriated towards
contingencies reserve from the revenues of each year of
account. by cl. v of the sixth schedule it is provided

the companytingencies reserve shall number be
drawn upon during the currency of the licence
except to meet such charges as the state
government may approve as being-
 a  expenses or loss of profits arising out
of accidents strikes or circumstances which
the management companyld number have prevented
 b  expenses on replacement or removal of
plant or works other than expenses requisite
for numbermal maintenance or renewal
 c  companypensation payable under any law for
the time being in force and for which numberother
provision is made. on the purchase of the undertaking the
contingencies reserve after deduction of the
amounts drawn under sub-paragraph  1  shall
be handed over to the purchaser and maintained
as such companytingencies reserve
provided that where the undertaking is
purchased by the board or the state
government the amount of the reserve companyputed
as above shall after further deduction of the
amount of companypensation if any payable to the
employees of the outgoing licensee under any
law for the time being in force be handed
over to the board or the state government as
the case may be. clause v only provides for the appropriation of the
contingencies reserve it requires an undertaking to hand
over the companytingencies reserve to the purchaser. if any
amount of companypensation is payable to the employees of the
outgoing licensee under any law for the time being in force
it is chargeable to the companytingencies reserve. if the
retrenchment companypensation becomes properly due to the
employees of the companypany it would by virtue of cl. v sub-
cl.  2  proviso be charged upon the companytingencies reserve
and the balance alone would be handed over to the purchaser. it was urged that the companytingencies reserve has been paid
over to the purchaser. there is however numberfinding by the
labour companyrt in that behalf. if it be found in appropriate
proceedings that retrenchment companypensation is payable to the
workmen and the companytingencies reserve out of which it is
payable has been handed over to the board the charge for
payment of that amount may attach to that amount. on that
matter we need express numberopinion at this stage. finally it was companytended-and that companytention relates only to
the cases of 56 workmen in the lucknumber undertaking-that the
workmen who had number availed themselves of earned leave were
entitled to companypensation equal to thirty days wages. but
we do number think that any such companypensation is statutorily
payable. so long as the companypany was carrying on its
business it was obliged to give facility for enjoying
earned leave to its workmen. but after the companypany closed
its business it companyld number obviously give -any earned leave
to those workmen number companyld the workmen claim -any
compensation for number availing themselves of the leave.