orlginal jurisdiction writ petition  crl.  number 1179 of
1982.  under article 32 of the companystitution of india
govind mukhoty for the petitioner. altaf ahmed girish chahdra and miss a. subhashini for
the respondents. the judgment of the companyrt was delivered by
bhagwati j. the issue of indian express dated 26th
august a 1982 carried a news item that a large number of
migrant workmen from different states including the state of
orissa were working on the salal hydro electric project in
difficult companyditions and they were denied the benefits of
various labour laws and were subjected to exploitation by
the companytractors to whom different portions of the work were
entrusted by the central government. the peoples union for
democratic rights thereupon addressed a letter to mr.
justice d.a. desai enclosing a companyy of the news report and
requesting him to treat the letter as a writ petition so
that justice may be done to the poor labourers working in
the salal hydro electric project. the letter was placed
before a bench of this companyrt and it was treated as a writ
petition and by an order dated 10th september 1982 this
court directed that the union of india the. state- of
orissa the labour companymissioner orissa at new delhi. the
state of jammu and kashmir and the labour companymissioner  j
k  should be shown as respondents to the writ petition and
issued numberice to the union of india the state of orissa and
the assistant labour companymissioner of orissa at new delhi to
show cause against the writ petition. this companyrt also
directed the labour companymissioner jammu to visit the site of
the salal hydro electric project and ascertain  i  whether
there are any bonded labourers employed on this project and
if so to furnish their names  ii  whether there are any
migrant workers who have companye from other states  iii  what
are the companyditions in which the workers are living and  iv
whether the labour laws enacted for their benefit are being
observed and implemented pursuant to this order made by the
court the labour companymissioner jammu visited the site of the
salal hydro electric project and made an interim report on
11th october 1982 and this was followed by a final report
dated 15th october 1982. the writ petition there- p after
came up for hearing on 3rd numberember 1982. and on that date
the companyrt pointed out that the secretary union of india
ministry of home affairs the state of orissa the labour
commissioner orissa at new delhi the state of jammu and
kashmir and the labour companymissioner  j k  had already been
impleaded as respondent number. i to s but since the reports
made by the labour companymissioner jammu disclosed that the
salal hydro electric project was being carried out by the . government of india the companyrt directed that the union of
india in the labour ministry as also the chief labour
commissioner  central  may also be added as respon-
dents number. 6 and 7 to the writ petition and that numberice of
the writ petition shall go immediately to them alongwith
copies of the two reports. the companyrt also directed that the
union of india and the chief labour companymissioner  central
should file their affidavit or affidavits within two weeks
from the date of the order dealing with the various
averments made in the two reports of the labour
commissioner jammu and particularly the final report made
by him since the final report disclosed prima facie that
there were certain violations of labour laws companymitted by
the central government and the companytractors. the companyrt also
directed following its decision given on 18th september 1982
in peoples union for democratic rights v. the union of
india l  that the union of india and the chief labour
commissioner  central  shall ensure that hereafter minimum
wage is paid directly by the central government or the
contractors as the case may be to the workmen employed by
them without the intervention of any sub-contractors or
jamadars or khatedars and without any deduction whatsoever
except such as may be authorised statutorily. the reference
to sub-contractors in this order will be companyfined only to
those sub companytractors who have number been licenced under the
contract labour  regulation and abolition? act 1 956 because
if any such sub-contractors have been licenced they would
fall within the definition of companytractor and would therefore
be liable for payment of minimum wage directly to the
workers without any deduction. the union of india and the
chief labour companymissioner  central  will also in the
meanwhile ensure that sections 16 to 19 of the companytract
labour  regulation and abolition  act 1956 read with the
relevant rules made under that act are companyplied with as the
same are mandatory and the central government is the
appropriate authority to enforce the provisions of those
sections. it appears that the union of india and the chief
labour companymissioner  central  were number able to file their
affidavit or affidavits within the time granted to them with
the result that the time had to be extended twice and
ultimately an affidavit dated 14th december 1982 was made
by one h.s. raju deputy secretary to the government of
india in the ministry of labour and rehabilitation and it
was filed in companyrt on behalf of the union of india. it was
on the basis of the two reports made by the labour
commissioner jammu and the affidavit in reply filed by h.s
raju on behalf of the union of india alongwith certain other
documents produced at the hearing that the writ petition was
argued before us
the salal hydro electric project is a power project
undertaken by the government of india with a view to
increasing the generation of electric power in the companyntry
by utilising the waters of river chenab. it is a gigantic
project located near village salal in jammu and the
government of india has entrusted it to the national hydro
electric power companyporation for execution on agency basis. there are certain portions of the work in companynection with
the project which are being executed by the national hydro
electric power companyporation itself through workmen directly
employed by it while certain other portions of the work are
entrusted to companytractors of whom the principal four are
hindustan companystruction companypany limited gammon india
limited t.r. gupta private limited and asia foundation
construction companypany. these companytractors in their turn are
doing a part of the work entrusted to them through workmen
directly employed by them while a part of the work has been
allotted by them to sub-contractors described as piece
wagers. the workmen employed by the national hydro electric
power companyposition the companytractors and the sub-contractors
are mostly from other states such as u.p. bihar and orissa. there is numberuniform pattern of employment in regard to these
workmen but so far as oriya workmen are companycerned they are
usually recruited by khatedars from their villages in orissa
and given advances before being taken for work. so also some
bihari workmen were found by the labour companymissioner  j k
to have received such advances before companying to the project
site. number the companytract labour  regulation and abolition  act
1970  hereinafter referred to as companytract labour act  being
applicable to the establishments pertaining to the project
work the executive engineers of the national hydro electric
power companyporation having supervision and companytrol over the
.respective establishments are registered as principal
employers and the companytractors to whom different portions of
the work are entrusted for execution are licensed under the
provisions of that act. since the project work is being
carried on by or under the authority of the central
government. the central government is the appropriate
government in relation to the establishments pertaining to
the project work and the companytractors are licensed by the
licensing officers appointed by the central government. the
sub-contractors to whom different portions of the work are
entrusted by the companytractors however do number hold any
licence through they fall within the definition of the word
contractor in clause  c  of section 2 of the companytract
labour  regulation and abolition  act 1970 and it is pre-
cisely in order to circumvent the provisions of the companytract
labour regulation and abolition  act that they are called
piece wagers instead of sub-contractors. the project work
is thus carried out by workmen employed by the national
hydro electric power companyporation or by companytractors licensed
under the provisions of the companytract labour  regulation and
abolition  act or by sub-contractors who are euphemistically
described as piece wagers. the question raised in this writ petition is whether
the workmen employed in the project work are ensured the
rights and benefits provided to them under various labour
laws such as companytract labour  regulation and abolition  act
1956 the minimum wages act 1948 and the inter state
migrant workmen  regulation of employment and companyditions of
service  act. 1979. so far as the inter state migrant
workmen  regulation of employment and companyditions of service
act 1979  hereinafter referred to as the inter state
migrant workmen act  is companycerned the final report of the
labour companymissioner  j k  clearly shows that its
provisions have number beeen implemented at all and the workmen
are denied many of the benefits and advantages provided
under it. this statement in the final report of the labour
commissioner  jk  is number denied on behalf of the union of
india in the affidavit in reply made by h.s. raju deputy
secretary to the government of india ministry of labour and
rehabilitation and the only explanation offered is that the
lnter state migrant workmen act though passed in 1979 did
number companye into force until 2nd october 1980 and the relevant
numberifications appointing various authorities under that act
were issued only in june 1982 and that was the reason why
numberaction companyld be taken by the officers of crm earlier. it is also averred in the affidavit in reply that most of
the workers from other states have gone to salal project for
work od their own and are therefore strictly speaking number
migrant workmen within the meaning of the definition of
that term companytained in the inter state migrant workmen act. we do number think that this justification given in the
affidavit in reply for number ensuring the benefits and
facilities provided under the inter state migrant workmen
act to atleast some of the workrnen and particularly oriya
workmen can be accepted as valid. lt is clear- from the
statement of objects and reasons that the inter state
migrant workmen act was enacted with a view to eliminating
abuses to which workmen recruited from one state and taken
for work to anumberher state were subjected by the companytractors
sardars or khatedars recruiting them. the mal-
practices indulged in by the companytractors sardars or
khatedars in a regard to workmen recruited by them for work
outside their state may be found briefly summarised as
follows in the statement of objects and reasons
though the sardars promise at the time of recruit
ment that wages calculated on piece rate basis would be
settled every month the promise is number usually kept
once the worker companyes under the clutches of the company-
tractor he takes him to a far-off place on payment of
railway fare only. numberworking hours are fixed for these
workers and they have to work on all the days in a week
under extremely bad working companyditions. the provisions
of the various labour laws are number being observed in
their case and they are subjected to various
malpractices. it was felt that since inter state migrant workmen are
generally illiterate and unumberganised and are by reason of
their extreme poverty easy victims of these abuses and
malpractices it was necessary to have a companyprehensive
legislation with a view to securing effective protection to
inter state migrant workmen against their exploitation and
hence the inter state migrant workmen act was enacted. this
act received the assent of the president on 11th june 1979
but it was brought into force only on 2nd october 1980 by a
numberification issued under section j sub-section  3 . the
inter state migrant workmen  regulation of employment and
conditions of service  rules 980  hereinafter referred to
as the central p inter state migrant workmen rules  were
also made by the central government and brought into force
with effect from 2nd october 1980. but unfortunately
through the inter state migrant workmen act and the central
inter state migrant workmen rules came into force from 2nd
october 1980 the bureaucratic appratus for implementing
the provisions companytained in the act and thep rules wls number
set up by the central government for a period of more than
20 months and it was only in the month june. 1982 that the
central gnvernment appointed various authorities such as
registered ol1icers licensing officers and nspeclors.lven
so we fail to see why the obligations of companytractors set out
in section l2 and wages welfare and other facilities
provided in jsections 13 to l i of the inter state migrant
workmen act companyld
number be made available to inter state migrant workmen
employed in the project work and the central government as
the appropriate government companyld number enforce the salne from
and after 2nd october 1980. when the act aod the rules came
into force with effect from 2nd october 1980 the
provisions companytained in s. 12 and ss. 13 to 16 became
clearly applicable to the establishments pertaining to the
project work and there was numberjustification for the central
government to delay any longer the implementation of these
provisions in so far as inter state migrant workmen were
concerned. the central government in any event ought to have
enforced the provisions relating to registration of
principal employers and licensing of companytractors as also the
provisions set out in s. 12 and ss. 13 to 16 from june 1982
when the various authorities companytemplated under the act were
appointed by the central government. we do number think the
central government can escape its obligation to enforce the
provisions of the inter state migrant workmen act on the
plea that there are numberlater state migrant workmen employed
in the project work the final report of the labour
commissioner  j kj clearly shows that orriya workmen
employed on the project site were recruited by khatedars
from their villages in orissa and brought to the project
site for work and they would clearly be inter state migrant
workmen within the definition of that term clause  e  of
section  2  of the inter state migrant workmen act. we would
therefore direct the central government to take immediate
steps for enforcement of the provisions of the inter state
migrant workmen act in regard to inter state migrant workmen
employed is the project work. the central government will at
once proceed to identify inter state migrant workmen from
amongst the workmen employed in the project work and adopt
necessary measures for ensuring to them the benefits and
advantages provided under the inter state migrant workmen
act. we would like the central government to file as
affidavit within one month from today setting out what steps
have been taken for securing implementation of the
provisions of the enter state migrant workmen act at the
project site whether the executive engineers of the central
government or the national hydro electric power companyporation
have been registered as principal employers under section 4
and the companytractors sub companytractors or piece wagers
khatedars and sardars have been licensed under section 8
whether the companytractors and sub-contractors or piece wagers
are carrying out the obligations imposed upon them under
section 12 and whether wages and allowances stipulated in
sections 13. 14 and 15 and other facilities provided in
section 16 are being
made available to the inter state migrant workmen employed
in the project work. that takes us to the question whether the provisions of
the minimum wages act and the companytract labour act are being
followed in relation to the workmen employed on the project
site. but before we companysider this question we may point out
that in regard to the suggestion made in the writ petition
that there are amongst the oriya workmen bonded labourers
who are forced to provide labour by the khatedars who have
recruited them the final report of the labour companymissioner
 j k  points out that. by and large there is numberevidence
of any worker having been detained and number allowed to go
home against his wish and there is numberbonded labourer in
the project whether the employment is direct or through the
contractors or sub-contractors. we must therefore proceed
on the basis that there is numberviolation of the provisions of
the bonded labour system  abolition  act 1976. but so far
as the minimum wages act and the companytract labour act are
concerned the report of the labour companymissioner  j and k
does reveal that there are violations of the provisions of
these two statutes. section 2 clause  c  of the companytract
labour act defines companytractor in relation to an
establishment to mean a person who undertakes to produce a
given result for the establishment other than a mere supply
of goods or articles of manufacture to such establishment
through companytract labour or who supplies companytract labour for
any work of the establishment and included a sub-
contractor.  emphasis supplied . section 12 sub-section  1
then proceeds to enact that with effect from such date as
the appropriate government may by numberification in the
official gazette appoint numbercontractor to whom this act
applies shall undertake or execute any work through
contract labour except under and in accordance with a
licence issued in that behalf by the licensing officer. it
is therefore clear that number only a companytractor but also a
sub-contractor who companyes within the definition of the term
contractor in section 2 clause  e  is bound to obtain a
licence under section 12 subsection  1  before he can
undertake or execute any work through companytract labour. number
according to the final report of the labour companymissioner  j
k  the companytractors at the project site have undoubtedly
obtained the requisite licence under section 12 sub-section
 1  but the piece wagers who are really numberhing but sub-
contractors have-number cared to obtain such licence and yet
they have undertaken and are executing portions of the
project work entrusted to them by the companytractors through
work
men employed by them either directly or through khatedars. this is clearly in violation of the prohibition enacted in
section 12 subsection  1 . it is obvious that the object of
the piece wagers or the sub-contractors in number applying
for a licence under section 12 sub-section  i  is to evade
their obligations under sections 16 to 21 read with rules 41
to 62 of the companytract labour  regulation and abolition
central rules. 1971 hereinafter. referred to as the companytract
labour central rules  and to render these provisions
difficult of application in relation to the sections 16 to
21 read with rules 41 to 62 provide for making various
facilities available to workmen employed by companytractors for
securing their health and welfare and piece wagers or
subcontractor who are companytractors within the meaning of
that term in section 2 clause  c  cannumber escape their
obligations under these provisions by number applying for a
licence under section 12 sub-section  1 . in fact if sub-
contractors undertake or execute any work through companytract
labour without obtaining a licence under section 12 sub-
section  1  they would be guilty of a criminal offence
punishable under section 23 or section 24. we would
therefore direct the central government as the enforcing
authority to take immediate steps for ensuring that the
piece wagers or sub-contractors do number execute any portion
of the project work without obtaining a licence under sec. 12 sub-section  i  and that they carry out their obligations
under sections 16 to 21 read with rules 41 to 62. of companyrse
if the companytractors who have employed piece wagers or sub-
contractors have provided the facilities set out in sections
16 to 21 read with rules 41 to 62 number only to the workmen
employed directly by them but also to the workmen employed
by the piece wagers or sub-contractors numberhing more may
remain to be done by the piece wagers or sub-con-tractors. but there can be numberdoubt that the piece wagers sub-
contractors are equally responsible for implementing the
provisions companytained in these sections. the central
government will in the report to be submitted by it on or
before state whether the piece wagers or sub-contractors
have obtained the requisite licence under section 12 sub-
section  1  or they are executing the portion of the project
work entrusted to them without obtaining such licence and
whether the provisions set out in sections 16 to 21 read
with rules 41 to 62 are being implemented in relation to the
workmen employed by the piece wagers or subcontractors. the final report of labour the companymissioner  ik  also
points out that whereas the national hydro electric power
corporation
has provided canteens and rest rooms to its workmen as
required a by sections 16 and 17 of the companytract labour act
and rules 41 to 50 of the companytract labour central rules the
contractors and piece wagers or sub-contractors have number
provided such canteens and rest rooms in breach of their
obligations under these provisions. it is also mentioned in
the final report of the labour companymissioner  j k  that
adequate washing facilities are number provided at work sites
though there is clearly as obligation on the companytractors and
piece wagers or sub-contractors to do so under clause  c
section 18 read with rule 57. the central government has in
the affidavit in reply made on its behalf by h. s. raju
stated rather half heartedly that facilities for canteens
are reasonably made but companyceded that as canteens provided
by the companytractors are number of the prescribed specifications
action has been taken by the regional labour companymissioner
for prosecution of the companytractors for their failure to
provide canteens with specified specifications. we would
therefore direct the central government to take immediate
steps for ensuring that canteens rest rooms aud washing
facilities are provided by the companytractors and piece
wagers or sub-contractors to the workmen employed by them
in accordance with the requirements of sections 16 17 and
18 clause  c  read with rules 41 to 50 and 57 and the
central government will make a report to this companyrt on or
before 30th april 1983 setting out what steps have been
taken for securing implementations of these provisions and
whether these provisions have been companyplied with by the
contractors and piece-wagers or sub-contractors. so far as medical facilities are companycerned we are glad
to knumber that according to the final report of the labour
commissioner  j k  adequate medical care is provided to
the workmen employed on the project site. it is pointed out
in the final report of the labour companymissioner  j k  that
some minumbers were found to have been employed on the project
site but the explanation given was that these minumbers
accompany make members of their families on their own and
insist on getting employed. this companyrt has pointed out in
its judgment in the asiad workers case l  that companystruction
work is a hazardous employment and therefore under article
24 of the companystitution numberchild below the age of 14 years
can be employed in companystruction work. we are aware that the
problem of child labour is a h
difficult problem and it is purely on account of econumberic
reasons that parents often want their children to be
employed in order to be able to make two ends meet. the
possibility of augmenting their meagre earnings through
employment of children is very often the reason why parents
do number send their children to schools and there are large
drop outs from the schools. this is an econumberic problem and
it cannumber be solved merely by legislation. so long as there
is poverty and destitution in this companyntry it will be
difficult to eradicate child labour. but even so an attempt
has to be made to reduce if number eliminate the incidence of
child labour because it is absolutely essential that a
child should be able to receive proper education with a view
to equipping itself to become a useful member of the society
and to play a companystructive role in the socioeconumberic
development of the companyntry. we must companycede that having
regard to the prevailing socioeconumberic companyditions it is number
possible to prohibit child labour altogether and in fact
any such move may number be socially or econumberically acceptable
to large masses of people. that is why article 24 limits the
prohibition against employment of child labour only to
factories mines or other hazardous employments clearly
construction work is a hazardous employment and numberchild
below the age of 14 years can therefore be allowed to be
employed in companystruction work by reason of the prohibition
enacted in article 24 and this companystitutional prohibition
must be enforced by the central government. the central
government would do well to persuade the workmen to send
their children to a nearby school and arrange number only for
the school fees to be paid but also provide free of charge
books and other facilities such as transportation. we would
suggest that whenever the central government undertakes a
construction project which is likely to last for some time
the central government should provide that children of
construction workers who are living at or near the project
site should be given facilities for schooling and this may
be done either by the central government itself or if the
central government entrusts the project work or any part
thereof to a companytractor necessary provisions to this effect
may be made in the companytract with the companytractor. that takes us to the question whether wages are being
paid to the workmen in accordance with the provisions of the
relevant statutes. the final report of the labour
commissioner  j k  agrees that there is hardly any
irregularity in so far as payment of wages to the
workmen employed by the national hydro electric power
corporation and the companytractors is companycerned but points out
that in case of workmen employed by the piece wagers or
sub-contractors payment of wages is made directly only to
those workmen who are employed individually and to other
workmen like oriya labourers who are employed in groups
wages are paid through khatedars and in this latter case
there are companyplaints of deductions by khatedars on account
of advances made to the workmen in their native places
messing charges etc. though the muster rolls prepared and
maintained do number reflect the deductions. number this companyrt
has held in asiad workers case  supra  that the minimum
wages must be paid to the workmen directly without any
deductions save and except those authorised by the
statute. wages due to the workmen employed by the piece
wagers or sub companytractors must therefore be paid directly
to the workmen without the interventation of khatedars and
numberdeductions can be made from the wages on account of any
advances alleged to have been made by the khatedars to the
workmen. if there are any advances repayable by the workmen
to the khatedars or any messing charges are to be paid they
may be paid by the workmen to the khatedars after they
receive the full amount of wages due to them from the piece
wagers or sub-contractors. but on numberaccount can any
deductions be made from such wages and they must be paid to
the workmen directly without the intervention of any
middleman. moreover section 21 sub-section  2  of the
contract labour act - requires that every principal employer
shall numberinate a representative duly authorised by him to be
present at the time of disbursement of wages by the
contractor and it shall be the duty of such representative
to certify the amount paid as wages in such manner as may be
prescribed and under sub-section  3  of section 21 it is
the duty of the companytractor to ensure that disbursement of
wages is made in the presence of the authorised
representative of the principal employer. it is stated in
the final report of the labour companymissioner  jk  that this
statutory obligation under sub sections  2  and  3  of
section 21 is also number carried out and so far as the workmen
employed by the piece wagers or sub-contractors are
concerned payment of g wages to them is dot supervised by
any authorised representative of the companytractors or the
national hydro electric power companyporation or the central
government number is the payment of wages made in the presence
of such authorised representative and the workmen are left
to the mercy of the piece wagers or sub-contractors and
their staff. this statement is of companyrse disputed in the
affidavit is reply filed on behalf of the central government
but we have our own doubts
whether this denial is well founded of the requirement of
sub-sections  2  and  3  of section 21 is strictly carried
out and payment of wages to the workmen employed by the
piece wagers or sub-contractors is made in the presence of
an authorised representative of the national hydro electric
power companyporation of the central government there is no
reason why the workmen should companyplain to the labour
commissioner  j k  in regard to payment of wages because
in that event they would he receiving their full wages
directly from the piece wagers or sub-contractors without
the intervention of khatedars and free from any deductions
whatsoever moreover it is also pointed out by the labour
commissioner  j k  in his final report that over-time
wages earned by workmen are number received by them in their
entirety and almost 50 per cent is taken away by khatedars
but the muster sheets do number reflect the companyrect position
and are treated as mere formality. the central government
has number dealt specifically with this companyplaint in its
affidavit in reply beyond merely denying that over-time
wages are number paid. it may be numbered that this companyplaint has
been made by the labour companymissioner  j k  after making a
full and detailed enquiry from the workmen employed by the
piece wagers or sub-contractors and there is numberreason why
these workmen should have given false information to the
labour companymissioner  j k  or the labour companymissioner  j
k  should have made a statement in his final report which
was number borne out by the enquiry made out by him. the labour
commissioner  jk  also states that according to the
information gathered by him from the workmen he found that
numberweekly off day is allowed to the workmen except in case
of labour directly employed by the national hydro electric
power companyporation or other companytractors. the central
government in its affidavit in reply has denied that the
workmen are number being granted weekly off day with wages and
pointed out that the minimum rates of wages fixed by the
central government are inclusive of the element of weekly
day of rest and numberextra wages are legally payable to the
workmen under the minimum wages act. number there can be no
doubt that the minimum rates of wages fixed by the central
government include the element of weekly day of rest and
that numberextra wages are legally payable to the workmen for
the weekly off days. but the companyplaint made in the final
report of the labour companymissioner  j k  is number that extra
wages are number
being paid to the workmen for the weekly off days but that
weekly paid off days are number given to the workmen meaning
thereby that the workmen are required to work even on their
weekly paid off days. these companyplaints have to be remedied
by the central government by taking appropriate action and
the only way in which this can be done effectively is by
carrying out periodically detailed inspections and insisting
that every payment of wages must be made by the piece
wagers or sub-contractors in the presence of the authorised
representative of the national hydro electric power
corporation or of the central government. the central
government has averred in its affidavit in reply that its
officers are regularly carrying out inspections and it has
given various dates on which such inspections were carried
out during the year 1982. the particulars of inspections
given by the central governments would show that during a
period of 12 months only for inspections were carried out
in case of three companytractors two inspections in case of one
contractor and one inspection each in case of three other
contractors. we find it difficult to accept that these
inspections carried out by the officers of the central
government were adequate. it is necessary to carry out more
frequent inspections and such inspections have to be
detailed and thorough for then only it will be possible to
ensure scrupulous observance of the labour laws enacted for
the benefit of workmen. we would therefore direct the
central government to tighten up its enforcement machinery
and to ensure that thorough and careful inspections are
carried out by fairly senior officers at short intervals
with a view to investigating whether the labour laws are
being properly observed particularly in relation to workmen
employed either directly or through khatedars by the
contractors as well as the piece wagers or sub-
contractors. the central government must also strictly
enforce the requirement that payment of wages particularly
to workmen employed either directly or through khatedars by
the piece wagers or sub-contractors is made in the
presence of an authorised representative appointed by the
national hydro electric power companyporation or the central
government and wages are paid directly to the workmen
without the intervention of khatedars and free from any
deductions whatsoever except those authorised by law. it is
number enumbergh merely to go periodically and examine the muster
rolls or muster sheets showing payment of wages because
even where wages are paid through khatedars and deductions
are made the muster rolls or muster sheets would invariably
show payment of
full wages and would number reject the companyrect position. the
central government must ensure and that is the direction we
give that every payment of wages whether it be numbermal
wages or over-time wages shall be made directly to the
workmen without any deductions in the presence of an
authorised representative of the national hydro electric
power companyporation or the central government. when payment of
overtime wages is made to the workmen the central
government must ask its authorised representative to check
up with reference to the overtime work done by the workmen
whether they are receiving the full amount of over-time
wages due to them or any part of it is being taken away by
the khatedars. this evil can to a large extent be eliminated
if payment of over-time wages is made directly to the
workmen instead of routing it through the khatedars. the
central government will promptly carry out these directions
which are being given by us and will make a report to this
court on or before 30th april 1983 setting out what steps
it has taken for carrying out these directions and how far
they have been implemented. it is only if the officers of
the national hydro electric power companyporation and the
central government are sensitive to the misery and suffering
of workmen arising from their deprivation and exploiation
that they will be able to secure observance of the labour
laws and to improve the life companyditions of the workmen
employed in such companystruction projects. there is also one other matter to which our attention
has been drawn by the labour companymissioner  j k . he has p
pointed out in his final report that the national hydro
electric power companyporation as also the companytractors and
piece wagers or sub-contractors are paying to the workmen
employed by them wages at the rate of rs. 9 per day whereas
the minimum wage payable to workmen in the companystruction
industry as per the numberification issued by the state of
jammu kashmir is rs. 10 per day. the result is that
whereas a workman employed in companystruction industry in the
state of jammu kashmir would be entitled to a minimum wage
of rs. 10 per day a workman employed in the salal project
which is being carried out in the state of jammu kashmir
would be getting only rs.


civil appellate jurisdiction civil appeal number3201 of
1989.
from the judgement and order dated 28.2.1989 of the
punjab and haryana high companyrt in c.w.p. number 7769 of 1988.
dr. n.m. ghatate and c.v.s. rao for the appellants. p.singh for the respondent. the judgement of the companyrt was delivered by

jayachandra reddy j. whether a personal hearing is
required before disposing of a petition filed under section
117 2  of the border security force act 1968  act for
short  against an order of the summary security force companyrt? this in short is the question involved in this appeal filed
by the union of india. the facts that give rise to this appeal may be numbered at
the outset. the sole respondent who was working as mounted
constable in the border security force  bsf for short
was charged for an offence under section 31 b  of the act
for extracting a sum of rs. 14000 from a person without
proper authority. a chargesheet was issued to the
respondent. the evidence in support of the same was
recorded. thereafter a summary security force companyrt as
provided under the act was companystituted and the respondent
was put on trial on 172.1988. during the recording of the
evidence though the respondent was given an opportunity to
cross-examine the witnesses he declined to do so and
according to the enquiring authorities he pleaded guilty
and prayed that a lenient view may be taken. during the
trial he was also given an opportunity to examine defence
witnesses if any but he did number do so. it is also averred
that since the respondent pleaded guilty summary security
force companyrt passed the orders and sentenced him to rigourous
imprisonment for one year in civil prison and also to be
dismissed from service. aggrieved by the said order the
respondent preferred a petition under section 117 2  of the
act to the director general bsf who
after going through the petition as well as other records of
the case rejected the same as devoid of any merit. the said
decision was informed to the respondent. aggrieved by the
same the respondent filed a petition under articles 226 and
227 of the companystitution of india before the high companyrt of
punjab haryana. it was urged that there was violation of
principles of natural justice e since he had number been heard
before disposing of the petition filed under section 117 2
of the act. the high companyrt without going into the merits
allowed the writ petition and directed a fresh hearing of
the petition filed by the respondent in accordance with law
after hearing him. aggrieved by the saidorder the union of
india has filed the present appeal. learned companynsel for the
appellants submitted that section 117  2  of the act does
number provide for personal hearing and that the companyrts which
examined the similar provisions in the army act have held
that the personal hearing need number be given particularly
having regard to the nature of the act and the post held. the learned companynsel appearing for the respondent on the
other hand submitted that the statute does number expressly
exclude a personal hearing and that an employee cannumber be
condemned without observing the principles of natural
justice. before we examine the decisions cited by either side
it is necessary to refer to some of the provisions of the
act and the army act. the bsf is an armed force of the
union of india companystituted under item 2 of list i of
schedule 7 of the companystitution of india and is primarily
connected with the defence of the companyntry. the preamble
states that the act is to provide for the companystitution and
regulation of an armed force of the union for ensuring the
security of the borders of india and for matters companynected
therewith. section 4 provides for companystitution of an armed
force of the union called the border security force for
ensuring the security of the borders of india and subject to
the provisions of the act the force shall be companystituted in
such manner as may be prescribed and the companyditions of
service of the members of the force shall be such as may be
prescribed. chapter iii deals with offences and chapter iv
with punishments that can be awarded by the security force
court. chapter vi deals with the companystitution of the
security force companyrts and their powers of try the offences
punishable under the act. chapter vii companytains the
procedure the witnesses can be summoned and examined. section 87 lays down that the evidence act shall subject
to the provisions of the act apply to all proceedings
before the security force companyrts. for the purpose of this
appeal it may number be necessary to go into the details of
this procedure. as per section 107 numberfinding or sentence
of a security
force companyrt shall be valid except so far as it may be
confirmed as provided under the act. sections 108 and 109
deal with the authorities empowered to companyfirm the decision
of the general security force companyrt or an ordinary security
force companyrt. under section 117 the aggrieved person is
entitled to file a petition to the companycerned authority
mentioned therein against the order passed by any security
force companyrt. section 117 reads as under
117 1  any person subject to this act who
considers himself aggrieved by any order passed by
any security force companyrt may present a petition to
the officer or authority empowered to companyfirm any
finding or sentence of such security force companyrt
and the companyfirming authority may take such steps as
may be companysidered necessary to satisfy itself as to
the companyrectness legality or propriety of the order
passed or as to the regularity of any proceeding to
which the order relates. any person subject to this act who companysiders
himself aggrieved by a finding or sentence of any
security force companyrt which has been companyfirmed may
present a petition to the central government the
director-general or any prescribed officer
superior in companymand to the one who companyfirmed such
finding or sentence and the central government
the director-general or the prescribed officer as
the case may be may pass such order thereon as it
or he thinks fit. the next relevant section is section 118 which reads thus
the central government the director-general or
any prescribed officer may annul the proceedings of
any security force companyrt on the ground that they
are illegal or unjust. in the instant case we are companycerned with the post-
confirmation petition presented under section 117 2  to the
director-general bsf. as already mentioned the director-
general rejected the same holding that it is devoid of merit
without giving any personal hearing. the petition filed by
the respondent under section 117 2  is marked as annexure
c in this appeal before us. we have gone through the same
and we find that request for personal hearing as such has
number been made. with this background we shall number examine
whether it is ob-
ligatory that a personal hearing should be given and whether
there has been violation of principles of natural justice? the doctrine of principles of natural justice and audi
alteram partem are part of article 14 and there are any
number of decisions rendred by this companyrt regarding the
scope of this doctrine. we shall however refer to one or
two important cases relied upon by the learned companynsel for
the appellants. in maneka gandhi v. union of india 1978
2 scr 621 all the earlier important cases are referred to. suffice it to say that it is laid down that principles of
natural justice apply to administrative orders affecting the
rights of citizens. but it is also observed that
the audi alteram partem rule may therefore by
the experimental test be excluded if importing
the right to be heard has the effect of paralysing
the administrative process or the need for
promptitute or the urgency of the situation so
demands. but at the same time it must be
remembered that this is a rule of vital importance
in the field of administrative law and it must number
be jettisoned save in very exceptional
circumstances where companypulsive necessity so
demands. it is a wholesome rule designed to secure
the rule of law and the companyrt should number be too
ready to eschew it in its application to a given
case. the companyrt must make every effort to salvage
this cardinal rule to the maximum extend
permissible in a given case. in state of haryana v. ram krishan and others 1988 3 scc
416 the question was whether in a case of premature
termination of mining leases by the government it was
necessary to give an opportunity of hearing. the companyrt held
that
since there is numbersuggestion in the section to
deny the right of the affected persons to be heard
the provisions have to be interpreted as implying
to preserve such a right. the section must be
interpreted to imply that the person who may be
affected by such a decision should be afforded an
opportunity to prove that the proposed step would
number advance the interest of mines and mineral
development. number to do so will be violative of the
principles of natural justice. reference may be
made to the observations of this companyrt in baldev
singh v. state of himachal pradesh 1987 2 scc
510 that where exercise of a power results in
civil
consequences to citizens unless the statute
specifically rules out the application of natural
justice such rule would apply. the learned companynsel appearing for the union of india
however submitted that the companyrts have number gone to the
extent of holding that in every petition or revision by way
of representation filed against an order of a tribunal under
special statute should also be given an opportunity of
hearing before disposal of the same. most of the other decisions cited deal with the
question of giving an opportunity before disposal of a
petition filed under section 164 2  of the army act which is
in pari materia to section 117 2  of the act. we may
usefully extract section 164 of the army act which reads
thus

remedy against order finding or sentence of
court-material-any person subject to this act who
considers himself aggrieved by any order passed by
any companyrt-martial may present a petition to the
officer or authority empowered to companyfirm any
finding or sentence of such companyrt-martial and the
confirming authority may take such steps as may be
considered necessary to satisfy itself as to the
correctness legality or propriety of the order
passed or as to the regularity of any proceedings
to which the order relates. any person subject to this act who companysiders
himself aggrieved by a finding or sentence of any
court-martial which has been companyfirmed may
present a petition to the central governmentthe
chief of the army staff or any prescribed officer
superior in companymand to the one who companyfirmed such
finding or sentence and the central government the
chief of the army staff or other officer as the
case may be may pass such orders thereon as it or
he thinks fit. in som datt datta v. union of india ors. 1969 2 scr 177
a question came up whether it was necessary for the
confirming authority or upon the central government to give
reasons while disposing of a petition under section 164.
it was held that
apart from any requirement imposed by the statute
or statutory rule either expressly or by necessary
implication
we are unable to accept the companytention of mr. dutta
that there is any general principle or any rule of
natural justice that a statutory tribunal should
always and in every case give reasons in support of
its decision.  emphasis supplied
in union of india v. jyoti prakash mitter 1971 1 scc 396
a question came up whether an order passed by president
acting under art. 273 of the companystitution of india is
justiciable. this companyrt held that the appreciation of the
evidence by the president is entirely left to him but the
court will number sit in appeal over the judgement of the
president. number companying to the question of personal hearing
it was further held that
the president had given ample opportunities at
diverse stages to the respondent to make his
representations. all evidence placed before the
president when he companysidered the question as to the
age of the respondent was disclosed to him and he-
respondent-was given an opportunity to make his
representation thereon. there is numberhing in clause
 3  of article 217 which requires that the judge
whose age is in dispute should be given a personal
hearing by the president. the president may in
appropriate cases in the exercise of his discretion
give to the judge companycerned an oral hearing but he
is number bound to do so. an order made by the
president which is declared final by clause  3  of
article 217 is number invalid merely because numberoral
hearing was given by the president to the judge
concerned.  emphasis supplied
in lt. company. k.n.s. sidhu v. the union of india and others
all india service law journal 1977 page 721 a division
bench of the punjab haryana high companyrt has companysidered this
very question and held that the rejection of a
representation made under section 164 2  of the army act
without giving a personal hearing does number suffer from any
illegality and after referring to a.k. gopalan v. state of
madras air 1950 sc 27 and union of india v. jyoti prakash
mitter air 1971 sc 1093 held that
from the observations reproduced above it is
abundantly clear that there is numberhard and fast
rule for the applicability of principles of natural
justice and that in each case it has to be
definitely ascertained if the statute governing it
leaves
any discretion for involving their assistance. it was further observed that
the act applies to a class of people who are the
backbone of the companyntry. they are governed by the
codified law. discipline is maintained by resorting
to the provisions of the companyified law. there would
hardly be any justification for importing the
principles of natural justice in a companypletely
codified statute. in captain harish uppal v. union of india and others 1973
2 scr 1025 also the question whether an opportunity to be
heard is necessary before companyfirmation under section 164 of
the army act was companysidered and it was held that
the companytention that brig. bhilla should either
have given a hearing to the petitioner or the chief
of army staff should have given a hearing to the
petitioner before companyfirming the subsequent
sentence by the companyrt martial is number a requirement
under the act. while it can be at least said that
there is some semblance of reasonableness in the
contention that before he ordered what in effect
was an upward revision of the sentence passed on
the petitioner he should have been given a
hearing to insist that the companyfirming authority
should give a hearing to the petitioner before it
confirmed the sentence passed by the companyrt-martial
is a companytention which cannumber be accepted. to
accept this companytention would mean that all the
procedure laid down by the companye of criminal
procedure should be adopted in respect of the companyrt
martial a companytention which cannumber be accepted in
the face of the very clear indications in the
constitution that the provisions which are
applicable to all the civil cases are number
applicable to cases of armed personnel. it is number
a requirement of the principles of natural justice. indeed when he was informed that the subsequent
sentence passed on him had been sent to the chief
of the army staff for companyfirmation it was open to
the petitioner to have availed himself of the
remedy provided under section 164 of presenting a
petition to the companyfirming officer i.e. the chief
of the army staff in this case. he does number appear
to have done so.  emphasis supplied
in this decision this companyrt has held in unambiguous terms
that the companyfirming authority need number give a personal
hearing and this ratio applies with equal force to a post
confirmation petition under section 164 2  and companysequently
to an application under section 117 2  of the act. in a recent decision in shri s.n. mukherjee v. union of
india jt  1990  3 630 a companystitution bench of this companyrt
having numbered the principle that requirement to record
reasons can be regarded as one of the principles of natural
justice which govern exercise of power by administrative
authorities however proceeded to hold that there is
numberhing in the language of sub-section  2  of section 164
which indicates that recording of reasons for an order
passed on the post-confirmation petition was necessary. in
arriving at this finding the bench referred to the ratio
laid down in som datt datts case. at this stage we may
refer to anumberher decision of this companyrt in union of india v.
cor. j.n. sinha and anr. 1971 1 scr 791 wherein it is
held
rules of natural justice are number embodied rules
number can they be elevated to the position of
fundamental rights. as observed by this companyrt in
kraipak and ors. v. union of india air 1970 sc
150 the aim of rules of natural justice is to
secure justice or to put it negatively to prevent
miscarriage of justice. these rules can operate
only in areas number companyered by any law validly made. in other words they do number supplant the law but
supplement it. xx xx xx
whether the exercise of a power companyferred should be
made in accordance with any of the principles of
natural justice or number depends upon the express
words of the provision companyferring the power the
nature of the power companyferred the purpose for
which it is companyferred and the effect of the
exercise of that power. from the above discussion it emerges that in cases of
special enactments like army act all the principles of
natural justice cannumber be imported. the same ration applies
to a petition under section 117 2  of the act also. we may
also point out her that chapter xiii companysisting of rules 167
to 169 of the bsf rules deals with petitions filed under
section 117 of the act. even in them there is numberhing to
indicate that a hearing has to be given before disposal of a
petition. as numbered above under section 117 2  the respondent in
only entitled to file a petition but the disposal of such a
petition does number attract principles of natural justice. the respondent has been tried by observing the due process
of law and the verdict of the security force companyrt was
confirmed and it is only a post-confirmation petition that
was filed under section 117 2  of the act and authority
which disposed of the same is number a companyrt any every order
passed administratively cannumber be subjected to the rigours
of principles of natural justice.


civil appellate jurisdiction civil appeal number. 856 and
857 of 1974 etc. from the judgment and order dated 13/14.6.1973 of the
mysore high companyrt in misc. first appeal number 290 and 293 of
1973

b. datar and ravi p wadhwani for the appellants. veerappa for the respondent. the judgment of the companyrt was delivered by
venkatachaliah j. these three appeals by the
claimant-respondents in certain land acquisition appeals
before the high companyrt are preferred by special leave
against the companymon order dated 14.6 1973 of the high companyrt
of mysore  karnataka  companydoning under section 5 of the
limitation act 1963 certain delays on the part of the land
acquisition officer in preferring the three companyresponding
appeals in m.f.a. number 290 of 1973 m.f.a. 293 of 1973 and

f.a. number 289 of 1973 respectively
the appeals before the high companyrt were directed against
the companymon-award made by the civil judge bangalore
district in certain land acquisition references under
section 18 of the land acquisition act steeply enhancing the
compensation for the lands of the appellants acquired for
the purpose of the university of agricultural sciences at
bangalore. the circumstances leading upto and necessitating
the prayer for the companydonation of the delays before the high
court seem somewhat unfortunate casting as they do as
persions on the probity and rectitude of the companyduct and
good faith of the government companynsel entrusted with the
conduct of land acquisition cases. the companymon award in the three land acquisition
references was passed by the learned civil judge on
17.7.1970. application for certified companyies was made on
31.8.1971 companyies obtained on 5.1.1972 and m.f.a. number 289 of
1973 was lodged before the high companyrt on 19.1.1972 and the
other two appeals viz. m.f.a. 290 of 1973 and 293 of 1973
on 10.4.1972. there were thus substantial delays in
preferring the appeals. the land acquisition officer appellant before the high
court filed applications to have these delays excused. the
division-bench of the high companyrt was persuaded to make an
order companydoning the delay. the grievance of the state in the appeals was that the
lands which had been purchased in the year 1962 for a sum of
rs.7000 per acre were acquired pursuant to the preliminary
numberification dated 2.3.1963 and the award of the land
acquisition officer granting rs.58000 per acre was itself
unduly generous having regard to the fact that the
acquisition was just about an year after the purchase by the
claimants and that the further enhancement by the civil
court to rs.145200 per acre clearly suffered from the vice
of extreme excessiveness

sri. r.b. datar learned companynsel appearing in
support of these appeals assailed the order of the high
court on the ground that the high companyrt fell into a manifest
error in companydoning these inumberdinate and wholly unjustified
delays and that explanation offered before and accepted by
the high companyrt sarnat in law be held to companystitute
sufficient cause for purposes and within the meaning of
section 5. learned companynsel strenuously urged that the rights
vesting in the successful parties to a litigation by the
expiry of the period of limitation should number lightly be
interferred with unless it was established that the
appeal companyld number have been lodged in time despite the
exercise of reasonable diligence on the part of the
appellant. learned companynsel further companytended that the fact
that the government pleaders had number discharged their duty
to the government even if true would be wholly beside the
point as that would be a matter of internal administration. if government was number able to set its own house in order
says learned companynsel the opposite party who had the
benefit of the adjudication should number be exposed to a time
barred appeal. there cannumber says companynsel be one standard
for an ordinary litigant and anumberher for government. on the merits of the cause shown learned companynsel said
the explanation served only to aggravate the negligence
that the explanation might at best amount to sufficient-
cause for the delay upto 20.1.1971 when the civil judge
wrote to the government and the latter admittedly was put
on numberice of the award and decree passed in the cases and
that the subsequent delays of over an year thereafter in
preferring the appeals cannumber even on the most liberal
construction of sufficient cause be said to be justified. shri veerappa learned companynsel for the state on the
other hand while seeking to support the order under appeal
submitted that the circumstances of the case disclosed that
the government was put in a predicament by its own law-
officers and that where as here public interest had companye
to suffer owing to the bad-faith and divided loyalties on
the part of the officers and advisers of government the
technicalities of procedure should yield to companysiderations
which would promote public interest and substantial justice. shri veerappa submitted that in the present case the
government-pleaders whom government had necessarily to and
did trust had let down that trust and this was a case of
salt having lost its savour. shri veerappa submitted that during the pendency of
the present appeals the high companyrt had heard and disposed
of the appeals before it on the merits substantially
reducing the companypensation that appellants have already
preferred slp number. 2319 2320 2493 of 1974 against that
judgment and that the present appeals preferred as they are
against the mere companydonation of delay do number survive at all
and must he held to have become infructuous. we might perhaps deal with the latter submission
of shri veerappa first. the fact that the main appeals are
themselves in the meanwhile disposed of finally on the
merits by the high companyrt would
number by itself detract from and bar the companysideration of the
correctness of the order companydoning the delays. this is an
instance of what are called dependant-orders and if the
order excusing the delays is itself set aside in these
appeals the further exercise made in the mean while by
the high companyrt finally disposing of the appeals would be
rendered nugatory. the submission of shri veerappa is
therefore insubstantial. in support of its prayer before the high companyrt for
condonation of the delays government narrated the
chronumberogical sequence of events and the some-what
protracted companyrespondence between government-pleader and the
government and the difficulties faced by the administration
in even ascertaining the companyrect state of affairs owing to
the negative and evasive attitude of the government-
pleaders. these events and companyrespondence are referred to
and evaluated in paragraphs 5 6 and 7 of the high companyrts
order. after a companysideration of the matter the high companyrt
was pursuaded to the view that in the circumstances of this
case it companyld number be said that the government was
negligent. high companyrt observed
taking into account all the circumstances of the
case we hold that there was number such negligence
or inaction on the part of the l.a.o. as to
induce as number to exercise our discretion under
section 5 of the limitation act to companydone the
delay in presenting the appeal. adverting to the companyduct of the government-pleader the
high companyrt observed
but how companyld the l.a.o. anticipate that the
government pleader or the assistant government
pleader would fail to do such elementary duties
like applying for such certified companyies obtaining
them and forwarding them to the government with
his opinion? to say the least the companyduct of the
government pleader and or the assistant
government pleader appears to us to be
extraordinary.  emphasis supplied
indeed in the companynter-affidavits filed on behalf of the
state government in these appeals the land acquisition
officer avers
i beg to submit that due to the unusual companyduct
of the district government pleaders who were in
office during a
particular period government had to face the
problem of delay in filing of appeals in hundreds
of cases. the government was number able to knumber the
real state of affairs till the companycerned
government pleaders relinquished their office. in
fact for some time there was utter companyfusion and
it became practically impossible to find out as to
which are the land acquisition cases which has
been disposed of and in which appeals were number
filed though appeals ought to have been filed
it is humbly submitted that the case of the
government for companydonation of delay was that on
account of the fraud played by the companycerned
government pleaders delay in filing the appeals
has occurred and more than a crore of rupees would
be a loss to the government on account of the said
fraud played by the government pleaders. in fact
in innumerable cases the honble high companyrt has
condoned the delay in filing of the appeals
taking into companysideration the most unusual companyduct
of government pleaders which had landed the
government in difficulties. i beg to further
submit that almost all the appeals which had been
entertained by the honble high companyrt after
condoning the delay have been allowed on
consideration of their merits
 emphasis supplied

the companytours of the area of discretion of the companyrts
in the matter of companydonation of delays in filing appeals are
set out in a number of pronumberncements of this companyrt. see
ramlal motilal and chhotelal v. rewa companylfield limited 1962
2 scr 762 shakuntala devi jain v.kuntal kumari 1969 1
scr 1006 companycord of india insurance company limited v. nirmala
devi and ors. 1979 3 scr 694 lala mata din v. a.
narayanan 1970 2 scr 90 and companylector land acquisition

katiji 1987 2 scc 107 etc. there is it is true no
general principle saving the party from all mistakes of its
counsel. if there is negligence deliberate or gross
inaction or lack of bona fides on the part of the party or
its companynsel there is numberreason why the opposite side should
be exposed to a time-barred appeal. each case will have to
be companysidered on the particularities of its own special
facts. however the expression sufficient cause in section
5 must receive a liberal companystruction so as to advance
substantial justice and generally delays in preferring
appeals are required to be companydoned in the interest of
justice where numbergross negligence or deliberate inaction or
lack of bona fides is imputable to the party seeking
condonation of the delay. in katijis case  supra  this
court said
when substantial justice and technical
considerations are a pitted against each other
cause of substantial justice deserves to be
preferred for the other side cannumber claim to have
vested right in injustice being done because of a
number deliberate delay. it must be grasped that judiciary is respected
number on account of its power to legalise injustice
on technical grounds but because it is capable of
removing injustice and is expected to do so. in litigations to which government is a party there
is yet anumberher aspect which perhaps cannumber be ignumbered. if
appeals brought by government are lost for such defaults no
person is individually affected but what in the ultimate
analysis suffers is public interest. the decisions of
government are companylective and institutional decisions and do
number share the characteristics of decisions of private
individuals. the law of limitation is numberdoubt the same for a
private citizen as for governmental-authorities. government
like any other litigant must take responsibility for the
acts or omissions of its officers. but a somewhat different
complexion is imparted to the matter where government makes
out a case where public interest was shown to have suffered
owing to acts of fraud or bad faith on the part of its
officers or agents and where the officers were clearly at
cross-purposes with it. therefore in assessing what in a particular case
constitutes sufficient cause for purposes of section 5 it
might perhaps be some what unrealistic to exclude from the
considerations that go into the judicial verdict these
factors which are peculiar to and characteristic of the
functioning of the government. governmental decisions are
proverbially slow encumbered as they are by a companysiderable
degree of procedural red-tape in the process of their
making. a certain amount of latitude is therefore number
impermissible. it is rightly said that those who bear
responsibility of government must have a little play at the
joints. due recognition of these limitations on
governmental functioning-of companyrse within a reasonable
limits-is necessary if the judicial approach is number rendered
unrealistic. it would perhaps be unfair and unrealistic to
put government and private parties on the same footing in
all respects in such matters. implicit in the very nature of
governmental functioning is procedural delay incidental to
the decision making process. in the opinion of the high
court the companyduct of the law-officers of the government
placed the
government in a predicament and that it was one of these
cases where the mala fides of the officers should number be
imputed to government. it relied upon and trusted its law-
officers. lindley m.r. in the re national bank of wales
ltd. 1899 j 2 l.r. 629 at 673 observed though in a
different companytext
business cannumber be carried on upon principles of
distrust. men in responsible positions must be
trusted by those above them as well as by those
below them until there is reason to distrust
them. in the opinion of the high companyrt it took quite sometime for
the government to realise that the law-officers failed that
trust. while a private person can take instant decision a
bureaucratic or democratic organ it is said by a learned
judge hesitates and debates companysults and companysiders speaks
through paper moves horizontally and vertically till at
last it gravitates towards a companyclusion unmindful of time
and impersonally. number at the end should we interfere with
the discretion exercised by the high companyrt? shri datar
criticised that the delay on the part of government even
after 20.1.1971 for over an year cannumber be said to be either
bonafide or companypelled by reasons beyond its companytrol. this
criticism is number without substance. government companyld and
ought to have moved with greater diligence and dispatch
consistent with the urgency of the situation. the companyduct of
government was perilously close to such inaction as might
perhaps have justified rejection of its prayer for
condonation. but as is implicit in the reasoning of the high
court the unarticulated thought perhaps was that in the
interest of keeping the stream of justice pure and clean the
awards under appeal should number be permitted to assume
finality without an examination of their merits. the high
court numbericed that the government pleader who was in office
till 15.12.1970 had applied for certified companyies on
20.7.1970 but the application was allowed to be dismissed
for default. in one case however he appears to have taken
away the certified companyy even after he ceased to be a
government pleader. in a similar companytext where delay had
been companydoned by the high companyrt this companyrt declined to
interfere and observed
having regard to the entirety of the
circumstances the high companyrt thought that the
state should number be penalised for the lapses of
some of its officers and that in the particular
circumstances there were sufficient grounds
justifying
the companydonation of delay in filing the appeals. it
was a matter for the discretion of the high companyrt.


criminal appellate jurisdiction criminal appeal number 398 of
1984.
from the judgment and order dated 16.11.83 of the himachal
pradesh high companyrt in crl. a. number 32 of 1983.
ms. kusum choudhury and ms. bina gupta for the appellant. dr. n.m. ghatate and s.v. deshpande for the respondent. the following order of the companyrt was delivered
on special leave being granted the state of himachal
pradesh has preferred this appeal against the judgment and
order dated 16.11.1983 acquitting the respondent of an
offence under section 376 ipc earlier recorded by the
learned sessions judge. briefly stated the prosecution case is that on 2.8.1982 the
prosecutrix raksha devi pw4 alongwith her father nikkoo ram
pw5 and an elder sister by name samti were in their fields. it started to rain all of a sudden and the prosecutrix her
father and her sister ran towards their house. the
prosecutrix got separated from her father and elder sister
and was following them when the respondent raghubir singh
then aged about 16 years came to her and caught hold of her
hand and took her under a mango tree. the prosecutrix who
was 7/8 years old at that time was wearing a frock and
having a shawl with her. the respondent spread the shawl on
the ground and making the prosecutrix lie on that shawl
committed rape on her. since the prosecutrix had number
reached her home nikkoo ram her father after waiting for
about half an hour returned towards the field and saw the
respondent lying on top of the prosecutrix raksha devi
under the mango tree. he raised alarm and the respondent
ran away carrying with him his underwear. the prosecutrix
was crying and was bleeding per vagina. the occurrence took
place at about 2.30 p.m. and the first information report
ex. pe was lodged at the police station at 5.50 p.m. the
prosecutrix was got examined by the doctor who found her
hymen ruptured and slight bleeding companying out of the vaginal
edges. blood clott was also present and the external
genitals of the prosecutrix were found to be tender and red. the vagina admitted one finger with difficulty which got
smeared with blood. the doctor who had examined the
prosecutrix namely dr. urmil gupta medical officer rural
hospital nalagarh at about 7 p.m. on the same day appearing
as pwi at the trial had also testified that when the
prosecutrix was brought to her by her father he had also
brought with him a shawl which was found to be having some
mud and bloodstains. according to the opinion of dr. urmil
gupta pwi the prosecutrix had been subjected to sexual
intercourse and the probable duration of the injuries on her
private parts. including the vagina was about 6 to 12
hours. during the cross-examination a suggestion was put
to the doctor that the injuries found on the prosecutrix
could have been caused by a fall on some bushes or on the
stem of a beree tree but the doctor had categorically
denied the suggestion. it was also suggested to her that
the venginal in jury companyld also be caused by inserting
a finger in the vagina. the x-ray the skiagrams and the
examination of her teeth by dr. subhash chandra aggarwal pw2
established the age of the prosecutrix to be between 6 to 8
years. the respondent was also examined by doctor c.l. sharma pw3 medical officer at the rural hospital nalagarh. he had found the respondent to be potent and capable of
sexual intercourse. he denied the suggestion that injuries
would necessarily be caused to the penis in case of sexual
intercoures by a grown up male with a virgin when during the
act her hymen gets torn. the father of the prosecutrix nikkoo ram pw5 the
prosecutrix raksha devi pw4 and taru pw7 who had rushed to
the scene of occurrence on hearing the alarm and had also
seen the respondent running away therefrom carrying with him
his underwear supported the prosecution case in its
totality. the learned sessions judge after a careful appraisal of the
evidence on record found that the respondent had companymitted
the offence of rape and sentenced him to suffer r.i. for a
period of five years for the offence under section 376 ipc. while awarding the sentence the learned sessions judge took
into account the age of the prosecutrix the age of the
accused and the other attending circumstances and directed
that it would be appropriate if the accused was kept in the
open air jail in bilasput during the term of five years r.i.
the respondent appealed to the high companyrt of himachal
pradesh and on 16.11.1983. the high companyrt acquitted him. we have heard learned companynsel for the parties at length and
have gone through the evidence on the record. the statement
of the prosecutrix raksha devi pw4 is clear companyent and
specific. the learned sessions judge before recording her
statement was companyscious of her age and had therefore taken
all the precautions required by law to ascertain whether she
was capable of giving evidence or number and on being satisfied
that she was so capable recorded her statement. she
narrated the occurrence in a simple and straight forward
manner. the prosecution case as numbericed in the earlier part
of the judgment was fully supported by her during her
statement and numberhing has been brought out in the cross-
examination from which any doubt companyld be caused about her
veracity. her statement receives ample companyroboration from
the testimony of nikkoo ram pw5 her father who even
otherwise would be the last person to companye forward with a
false accusation of the type of rape on his young unmarried
daughter. his testimony has impressed us and we find him to be a
truthful and reliable witness. the medical evidence of dr.
urmil gupta has supported the prosecutrix in all material
particulars. she has also testified to the presence of mud
and blood-stain- on the shawl. the evidence of taru pw7
who had also seen the accused running away from the scene of
crime carrying his underwear further lends credence to the
prosecution version. the learned sessions judge in our
opinion was therefore justified in relying upon the
prosecution evidence and recording an order of companyviction
against the respondent for an offence under section 376 ipc. his findings were based on proper appreciation of evidence
and were number unreasonable much less perverse. the learned
single judge of the high companyrt in our opinion without
appreciating or properly discussing the evidence set aside
the findings recorded by the sessions judge. the high companyrt
appears to have- embarked upon a companyrse to find some minumber
contradictions in the oral evidence with a view to
disbelieve the prosecution version. in the opinion of the
high companyrt companyviction on the basis of uncorroborated
testimony of the prosecutrix was number safe. we cannumber agree. there is numberlegal companypulsion to look for companyroboration of
the evidence of the prosecutrix before recording an order of
conviction. evidence has to be weighed and number companynted. companyviction can be recorded on the sole testimony of the
prosecutrix if her evidence inspires companyfidence and there
is absence of circumstances which militate against her
veracity. in the present case the evidence of the
prosecutrix is found to be reliable and trustworthy. no
corroboration was required to be looked for though enumbergh
was available on the record. the medical evidence provided
sufficient companyroboration. the high companyrt however while
dealing with the medical evidence observed as follows
lady doctor urmil gupta pw1 who had examined
the prosecutrix had admitted in so many words
towards the end of her cross examination that
the injury found on the private part of the
prosecutrix and which is the only injury found
in the instant case companyld be caused by
insertion of a finger by a grown up person
like the parents of the prosecutrix it is true
that numbermally numberparents would number do so but
in the peculiar circumstances of this case
this possibility may number be ruled out
altogether. in any case the mere fact that
the hymen of the prosecutrix had been found
ruptured would number prove the prosecution
version
and companynect the appellant with the offence
charged against him. the above approach to say the least was highly improper. what were the peculiar circumstances of the case from
which the learned single judge of the high companyrt thought
that the possibility companyld number be ruled out that the parents
of the prosecuted would have themselves caused injury to the
prosecutrix by inserting finger in her vagina rupturing her
hymen is number at all understandable. there is numbersuggestion
that on account of any enmity the parents of the girl would
go to that length to falsely implicate the respondent. dr.
ghatate the learned senior companynsel was also unable to point
out any such circumstances from the record which companyld
show that there was any possibility of the hymen of the
prosecutrix having been ruptured in the manner suggested by
the high companyrt or any reason to falsely implicate the
respondent. in fairness to dr. ghatate it must be recorded
that he did number support the observations of the high companyrt
numbericed above. the learned single judge of the high companyrt also drew an
inference against the prosecution from the fact that only
two blood-stains had been found on the shawl by the chemical
examiner and doubted the prosecution version on that
account. according to the learned single judge
in natural companyrse if this shawl had been used
under the prosecutrix at the time of the
alleged offence the same should have been
drenched with blood in the meddle. moreover
this shawl should have been full of mud as it
remained lying on the ground under the
prosecutrix for such a long time and when it
had rained throughout. in making the above observations obviously the high companyrt
ignumbered the testimony of doctor urmil gupta who had found
the presence of blood-stains and the mud on the shawl and
who had opined that the bleeding from the edges of the
vagina was slight and that some amount of clotted blood was
also present. the prosecutrix was a girl of tender age and
on account of the rape companymitted on her there was bleeding
from her vagina but to expect that the shawl should have got
drenched with blood as if the large blood arteries had
been cut is letting the imagination run wild and ignumbering
the circumstances of the case. the absence of spermatoza on
the vaginal slide which was also pressed into aid by the
high
court to acquit the respondent was number based on proper
scrutiny of the evidence. the prosecution case itself was
that on being surprised while the respondent was in the act
of companymitting sexual intercourse on the prosecutrix he ran
away carrying his underwear. the absence of spermatoza
under the circumstances companyld number be said to be a
circumstance in favour of the respondent at all. the
judgment of the high companyrt in our opinion is based more on
surmises and companyjectures than on proper appreciation of
evidence. it exposes the insensitivity of the learned judge
to the serious crime companymitted against human dignity. we
are number impressed by the manner in which the high companyrt
dealt with the case. companyrts must be wary circumspect and
slow to interfere with reasonable and proper findings based
on appreciation of evidence as recorded by the lower companyrts
before upsetting the same and acquitting an accused involved
in the companymission of heinumbers offence of rape of hapless girl
child. dr. ghatate learned senior companynsel for the respondent
submitted by reference to rahim beg anr. v. state of

p. 1972 3 scc 759 that the absence of injuries on the
penis of the respondent should be treated as sufficient to
the negative prosecution case. we are afraid we cannumber
agree. inferences have to be drawn in every case from the
given set of facts and circumstances. there is no
inflexible axiom of law which lays down that the absence of
injuries on the male organ of the accused would always be
fatal to the prosecution case and would discredit the
evidence of the prosecutrix otherwise found to be reliable. the presence of injuries on the male organ may lend support
to the prosecution case but their absence is number always
fatal. rahim begs case  supra  was based on its peculiar
facts and the observations mate therein were in a totally
different companytext and cannumber advance the case of the
respondent. the observations in rahim begs case  supra
cannumber be mechanically pressed into aid in every case
regardless of the specific circumstances of the crime and
absence of the fact situation as existing in that case. every case has to be approached with realistic diversity
based on peculiar facts and circumstances of that case. doctor sharma who had examined the respondent had found him
to be capable of sexual intercourse and according to his
opinion the absence of injury on his male organ was number
suggestive of the fact that he had number indulged in sexual
intercourse with the prosecutes then of tender years of age. his evidence was number at all challenged on this aspect by the
defence. thus companysidered on the whole. we are of the opinion that
the
judgment of the high companyrt is based on companyjectural findings
and cannumber be sustained. the same deserves to be set aside
and is hereby set aside. the reasoning given by the learned
sessions judge and the findings recorded by him on
appreciation of evidence have appealed to us and we find no
reason to take a view different than the one taken by the
learned sessions judge. we accordingly set aside the acquittal of the respondent
and hold him guilty of the offence under section 376 ipc for
having companymitted rape on the prosecutrix raksha devi on
the date and in the manner alleged by the prosecution. having recorded the companyviction of the respondent for the
offence under section 376 ipc the next question is about
the awarding of proper sentence. the occurrence took place
on 2.8.1982 more than a decade ago. the learned sessions
judge after recording the companyviction under section 376 ipc
had sentenced the respondent to suffer ri for five years. the state did number move the high companyrt for any enhancement of
the sentence. we therefore feel that the ends of justice
would be met if the sentence to be imposed on the respondent
is companyfined to five years ri as was awarded by the learned
sessions judge for companyent reasons recorded by him. we may
emphasise that though for such an offence a more severe
sentence would have been desirable but we have restricted
ourselves to the maintenance of the sentence as imposed by
the learned sessions judge for the reason that the state did
number seek any enhancement of the sentence by filing an
appropriate petition in the high companyrt or in this companyrt and
for over a period of seven years while the case has
remained pending here numbernumberice had been issued to the
acquitted respondent to show cause as to why in the event of
his acquittal being set aside a more deterrent sentence
than the one imposed by the sessions judge be number imposed
upon him and without putting him on such a numberice the companyrt
cannumber enhance the sentence. if the numberice were to issue
number it would further delay the disposal of the case and we
do number companysider that to be a proper companyrse to be adopted. the more stringent minimum sentence prescribed for an
offence under section 376 ipc was also incorporated in the
code by an amendment only with effect from december 1982
after the offence in the present case had been companymitted.


civil appellate jurisdiction civil appeal number 3119 of
1984.
from the judgment and order dated 20.9.1982 of the delhi
high companyrt in s.a.o. number 181 of 1979.
dr. y.s. chitale and mukul mudgal for the appellant. k. garg gopal singh l.r. singh and mrs. vimal sinha
for the respondent. the judgment of the companyrt was delivered by
pathak cj. this is a landladys appeal by special
leave arising out of proceedings for the ejectment of the
respondent-tenant. the appellant let out the premises in suit to the
respondent on 1 september 1962 the rent being stipulated
as payable in advance. with effect from 1 january 1972 the
rent payable was rs. 515 per month. on 29 numberember 1972
the companytractual tenancy was determined by numberice. the re-
spondent received a numberice on 7 may 1976 calling upon him
to pay the arrears of-rent. the rent in fact had been re-
ceived upto 31 march 1976 and therefore when the numberice
of demand was served on the appellant rent for the months
of april and may 1976 had fallen due. the rent was payable
in advance. on 13 may 1976 the respondent offered a bank draft of
rs.515 to the appellant. the appellant refused to accept it. two days later the respondent sent the same bank draft by
registered post. the appellant
received the bank draft and retained it. on 7 june 1976
the appellant wrote to the respondent informing him that his
tender was number valid. on 11 june 1976 the appellant sent
anumberher bank draft for rs.515 to the landlady and this
draft again was neither encashed number returned. on 2 august 1976 the appellant filed an application
for ejectment out of which the present appeal arises. after
filing the application for ejectment the appellant informed
the respondent that both the bank drafts sent by him were
lying uncashed. the additional companytroller delhi dismissed the eviction
petition holding that the tenant was number in default. the
rent companytrol tribunal delhi numbered that the rent was pay-
able in advance in accordance with the agreement between the
parties that the respondent had earlier enjoyed the benefit
of section 14 2  of the act that when the numberice of demand
was served on 7 may 1976 the arrears of rent for the months
of april and may 1976 had arisen that the bank draft sent
on 13 may 1976 related to the rent of april 1976 only
that as the rent for the month of may 1976 had also become
due but had number been tendered the landlady was justified in
number accepting the tender and that when the respondent again
sent a draft on 11 june 1976 to companyer the rent for the
month of may 1976 the rent for the month of june 1976 had
also fallen due but was number tendered. holding that the
respondent had number tendered the arrears of rent due up-to-
date within two months of the numberice of demand the tribunal
held that the ground of number-payment of rent stood estab-
lished. the tribunal numbered that the rent had number been paid
for the months of april may and june 1976 in advance for
each month and therefore the respondent had companymitted
three companysecutive defaults. that being so the tribunal
observed the respondent was number entitled to the benefit of
s. 14 2  again. in second appeal the high companyrt reversed the decision
of the rent companytrol tribunal and dismissed the application
for ejectment upon the finding that the numberice demanding the
arrears of rent related to the months of april and may 1976
and as one draft had been sent on 13 may 1976 and anumberher
on 11 june 1976 representing a total of two months rent
and as this rent had been paid within two months of the
service of numberice of demand it must be taken that the rent
due at the time of the service of numberice of demand had been
tendered by the respondent to the appellant. the high companyrt
proceeded on the view that s. 14 1  a  of the act made out a
ground for eviction only where the tenant had neither paid
number tendered the whole of the arrears of rent legally recov-
erable from him within two months of the date on
which a numberice of demand for the arrears of rent was served
on him by the landlord the arrears being the rent due on
the date of the numberice. in this case the high companyrt said
as the numberice called for payment of the arrears due for the
months of april and may 1976 and the bank drafts were ten-
dered within the period indicated in the numberice the numberice
was satisfied and numberdefault companyld be said to have been
committed in terms of s. 14 1  a  of the act. accordingly
the high companyrt allowed the appeal and dismissed the applica-
tion for ejectment. it is urged before us by learned companynsel for the appel-
lant that s. 14 1  a  of the act companytemplates the payment or
tender of the whole of the arrears of rent legally recovera-
ble from the tenant on the date when the demand numberice is
sent including the rent which has accrued after service of
the demand numberice. when the numberice was sent on 7 may 1976
rent for the months of april and may 1976 had become due
and as two months was given for payment of the arrears it
would include also the rent which had accrued during the
said period of two months. we are number satisfied that there
is substance in the companytention. the arrears of rent envis-
aged by s. 14 1  a  of the act are the arrears demanded by
the numberice for payment of arrears of rent. the arrears due
cannumber be extended to rent which has fallen due after serv-
ice of the numberice of demand. in this case the two bank
drafts representing the arrears of rent companyered by the
numberice of demand had been tendered within two months of the
date of service of the numberice of demand. the high companyrt is
fight in the view taken by it. we are number satisfied that the
construction placed by b.c. misra j. in jag ram nathu ram

shri surinder kumar s.a.o. number 52 of 1975 decided on 28
april 1976 and in s.l.