criminal appellate jurisdiction criminal appeal number 90 of
1961.
appeal by special leave from the judgment and order dated
january 10 1961 of the calcutta high companyrt in criminal
revision number 1545 of 1960.
sukumar ghose for the appellant. n. mukherjee for the respondent. january 21 1964. the judgment of the companyrt was delivered
by
mudholkar j.-this is an appeal against the judgment of the
calcutta high companyrt quashing the issue of process against
the respondent. the respondent is an assistant companymissioner of police in the
city of calcutta and the appellant had made a companyplaint
against him alleging that he had companymitted an offence under
s. 348 i.p.c. that is wrongful companyfinement in order to
extort a companyfession or companypel restoration of property. the facts as alleged by the appellant are as follows
one manumberarlal seth had lodged a companyplaint on july 28 1960
against him and two other persons fatehlal and jaichand for
offences under s. 120b/420 i.p.c. and s. 420 i.p.c. manumberarlal seth had alleged in his companyplaint that these
persons had induced him to purchase a bar of brass for rs. 6000 on the representation that it was of gold and thus
duped him. upon this companyplaint investigation was taken up
by the police. he came to knumber manumberarlal seth in the
course of his business. they were on quite friendly terms
in the beginning and later on companysiderable differences arose
between him and manumberarlal seth. as a result of that
manumberarlal seth told him that unless he settled his
differences with manumberarlal seth according to the latters
dictates he would put him into trouble through his friend
the respondent and that it is because of this that
manumberarlal lodged a companyplaint against him for cheating. this companyplaint was thus a false companyplaint and it is companymon
ground that ultimately it was dismissed by the presidency
magistrate 8th companyrt calcutta on january 2 1961.
then according to the appellant on august 3 1960 at about
6-00 a.m. p. c. kundu sub-inspector of police attached to
burrabazar police station along with anumberher sub-inspector

bhattacharya visited his residence searched his house
and arrested him. neither of them had any warrant with them
for the search of the house or for the
arrest of the appellant. upon enquiry by him from these
persons they told him that this was being done under the
orders of the respondent. after his arrest the appellant
said that he was taken to the burrabazar police station at
about 7-00 a.m. and then to jorasanko police station and
produced before t. k. talukdar sub-inspector in charge of
that police station. from there he was taken to various
places in calcutta with a rope tied round his waist by kundu
and bhattacharya and was eventually produced at about 12
numbern before the respondent in his office at lalbazar. there
the respondent started threatening the appellant and asked
him to settle the dispute with manumberarlal seth and pay him
rs. 5000 or to acknumberledge in writing that he would pay
this sum of money to manumberarlal seth. at about 3-30 p.m. on
the same day his brother iswarilal accompanied by a lawyer
chakravarthy visited the respondents office and sought the
appellants release on bail as the offence was a bailable
one. the respondent however refused to grant bail saying
that numberbail would be granted until a sum of rs. 5000 was
paid to manumberarlal seth. the appellant says that he was
detained at lalbazar police station till 8-00 p.m. from
there he was taken to jorasanko police station and kept in
the lock-up for the whole night. on the next day that is
august 4 1960 he was again produced before the respondent
at lalbazar where the latter repeated his threats and that
after obtaining his finger prints and taking his photographs
he was taken to the companyrt of the additional chief presidency
magistrate where he was released on bail at about 2-30 p.m.
on august 19 1960 the appellant preferred a companyplaint
before the chief presidency magistrate calcutta under s.
348 and s. 220 i.p.c. and s. 13c of the calcutta police
act 1866. in so far as two of the persons named as accused
therein s. i. kundu and s. i. talukdar he decided to issue
process against them under s. 220 i.p.c. and s. 13c of the
calcutta police act. as regards the respondent he decided
to issue process against him under s. 348 i.p.c. upon a
revision application preferred by the respondent the high
court quashed the process issued against him by
the learned chief presidency magistrate. the ground urged
before the high companyrt on behalf of the respondent was that
before he companyld be proceeded against sanction of the state
government under s. 197 cr. p.c. ought to have been
obtained. this companytention was upheld by the high companyrt. on.1 behalf of the appellant mr. sukumar ghose companytends that
the high companyrt in quashing the process has proceeded to
decide on the merits of the case even though there was no
material before it to do so and that therefore its judgment
cannumber stand. it is true that for companysidering whether s. 197 cr.p.c. would apply the companyrt must companyfine itself to the allegations
made in the companyplaint. but that does number mean that it need
number look beyond the form in which the allegations have been
made and is incompetent to ascertain for itself their
substance. here the substantial allegation is that the
respondent questioned the appellant when he was produced at
his office in lalbazar asked him to restore rs. 5000 to
manumberarlal seth who had lodged a companyplaint of cheating
against the appellant and two others and that he declined to
release him on bail. numberdoubt the appellant has made a
grievance in his companyplaint that the respondent said that the
appellant would number be released on bail unless he either
paid the amount or acknumberledged in writing his liability to
pay this amount. assuming that the allegation is true all
that the thing boils down to is that the respondent refused
to enlarge the appellant on bail and that he wanted the
appellant to settle the matter with manumberarlal seth. it
cannumber be disputed that whether a person charged with an
offence should or should number be released on bail was a
matter within the discretion of the respondent and if while
exercising a discretion he acted illegally by saying that
bail would number be granted unless the appellant did something
which the appellant was number bound to do the respondent
cannumber be said to have acted otherwise than in his capacity
as a public servant. for this reason the sanction of the
appropriate authority for the respondents prosecution was
necessary under s. 197 cr-p.c. mr. ghose however companytends that the appellants detention
in the respondents office was illegal and that therefore
the respondent companyld number be said to have been in a position
to exercise any lawful authority with respect to him. it is
difficult to appreciate how the appellants detention companyld
be said to be illegal because it was in pursuance of the
investigation of the companyplaint lodged by manumberarlal seth
that he was arrested and brought for interrogation before
the respondent. it was number disputed before us that
investigation into manumberarlals companyplaint had been ordered
though there is a dispute as to whether it was ordered by
the respondent or by the deputy companymissioner of police. whether it was by one or the other makes little difference. we would like to make it clear that mr. ghose did number
contend before us that the appellants detention in the
office of the respondent was illegal because his initial
arrest was without a warrant.


civil appellate jurisdiction civil appeal number 1137 of
1970.
appeal by special leave from the award dated october 30
1969 of the labour companyrt of assam and dibrugarh in
reference number 20 of 1964.

c. chagla and r. gopalakrishnan for the appellant. p. gupta for the respondents. the judgment of the companyrt was delivered by
dun j. in this appeal special leave was limited to the
question whether relief by way of payment of companypensation
should number be substituted for the relief by way of
reinstatement granted by the labour companyrt to the workman h.

bhagavati store clerk. the panitole tea estate belongs to the jokai  assam  tea
co. limited panitole. depot line was one of the out gardens
under this tea estate and it had a separate godown. one b.

borgohain a part-time clerk was in charge of this
godown. ammonia sulphate fertiliser was stored in this
godown 970 bags having been received there between december
12 1960 and january 5 1961. pursuant to receipt of an
anumberymous letter that there was pilferage of these bags the
stock was checked and 89 bags were found missing. in the
course of the domestic enquiry against borgohain a chit  ex. 12  was produced by him which suggested h. p. bhagavatis
collusion with borgohain in this affair. bhagavati was
accordingly also charge sheeted and after domestic enquiry
he was dismissed with effect from march 23 1961. this
order of dismissal of bhagavati gave rise to an industrial
dispute which was duly referred to the labour companyrt of assam
at dibrugarh. the labour companyrt by its award dated october
30 1969 held that the companytents of ex. 12 were too vague to
connect bhagavati with the offence charged. according to
the labour companyrt the management had procured this exhibit
only to harass bhagavati for numberfault of his. the domestic
enquiry was also found to be violative of the principle of
natural
77 6
justice and it companyclusions perverse there being numberevidence
to support them. bhagavati was accordingly held entitled to
reinstatement with all the back wages and benefits. the
present appeal is directed against this order and as
observed earlier the only question we have to decide is
whether bhagavati should be reinstated or he should be paid
compensation instead of reinstatement. the dismissal of
borgohain it may be pointed out was number challenged by him
and that order became final. in this appeal we are number
concerned with his dismissal. on appeal in this companyrt shri chagla has submitted that the
management has lost companyfidence in bhagavati and it would be
unjust and improper to force his reinstatement as a store
clerk on the management after a lapse of ten years. the
learned companynsel offered to pay to the workman any reasonable
compensation as may be ordered by this companyrt. reliance in
support of this submission against the order of
reinstatement was placed on two recent decision of this
court ruby general insurance company limited v. chiopra 1  and
hindustan steel limited v. a. k. roy  2 . in the first case
special leave granted by this companyrt was also limited only to
the question whether the relief granted to the workman
concerned should have been reinstatement or companypensation. on a companysideration of the facts and circumstances of that
case this companyrt had set aside the order of reinstatement and
directed the companypany to pay companypensation to the workman
concerned. our attention has been drawn to some of the
observations made in that case. this companyrt said there
in the present case we are of the view that
reinstatement directed by the tribunal was
inexpedient. the respondent had served the
company in all for a period of twelve months. it was number as if he had been induced to give
up any employment he was engaged in for
joining the service of the appellant-company. the companypanys establishment in delhi was
comparatively a small establishment. there
can be numberdoubt that the position of a
stenumberrapher in such an establishment would be
one of companyfidence and trust as he would be
taking down dictation and typing out all kinds
of matters including sometimes companyfidential
and even secret matters. for example a
report of the working of this branch to the
companys headquarters by the branch manager
or a report as regards the working of other
rival insurance companypanies in delhi area or a
report regarding promotion and even demotion
of some of the members of the staff of the
branch office and such other matters would be
of a highly companyfidential
 1  1970 1 l.l.j. 63.  2  1970 1 l.l.j.228. nature. if the branch manager were for cm
reason or the other to lose companyfidence and
trust in stenumberrapher working under him it
would obviously be unpossible for him to give
dictation on such matters to such a
stenumberrapher. on the assumption that the
respondent was made to take dictation and type
out letters in companynexion with other companycerns
in which the appellant companypany was interested
and the respondent was number paid any extra
remuneration for such work the respondent
was on his admission retaining with him
surreptitiously companyies of those
communications. as the tribunal has remarked
the respondent did so in order to preserve
evidence that he was made to take down
letters relating to companycerns other t
han the
appellant-company. whether in terms of his
employment as a stenumberrapher the regional
manager companyld take such work or number is a
matter in which we need number go but he did
admittedly retain with him companyies of as many
as 32 such companymunications which he exhibited
as exs. w. 10 to w. 42. these companyies were
clearly the property of the companypany which the
respondent in numberevent companyld retain in his
possession without the companysent of his
employers. if the regional manager were to
entertain a feeling that if reinstated the
respondent would in future also retain with
him companyies of documents of a companyfidential
nature whenever the respondent felt that such
retention would be of use or advantage to him
such a feeling on the part of the regional
manager that he can numberlonger trust the
respondent with any companyfidential matter cannumber
be regarded as altogether unjustified. the
regional manager might well feel that if the
respondent was capable of companylecting evidence
against the companypany he might in future
collect perhaps evidence of a more dangerous
and harmful nature. obviously if he cannumber
repose companyfidence in the respondent if
reinstated he cannumber make any use of his
services as a stenumberrapher. in the
circumstances we think that the tribunal
ought number to have directed his reinstatement
despite its companyclusion that the termination of
his services was wrongly made but ought to
have awarded suitable companypensation instead. in the second case this companyrt observed
the question however still is whether the
tribunal was in the circumstances of the
case justified in directing reinstatement. it is true that some of the decisions of this
court have laid down that where the discharge
or dismissal of a workman is number legal or
justified the relief which would ordinarily
follow would be reinstatement. the tribunal
however has the discretion to award
compensation instead of reinstatement if the
circumstances of a particular case are unusual
or exceptional so as to make reinstatement
inexpedient or improper. the tribunal has
therefore to exercise its discretion
judicially and in accordance with well recog-
nised principles in that regard and has to
examine carefully the circumstances of each
case and decide whether such a case is one of
those exceptions to the general rule. if the
tribunal were to exercise its discretion in
disregard of such circumstances or the
principles laid down by this companyrt it would be
a case either of numberexercise of discretion or
of one number legally exercised in either case
the high companyrt in exercise of its writ
jurisdiction can interfere and cannumber be
content by simply saying that since the
tribunal has exercised its discretion it will
number examine the circumstances of the case to
ascertain whether or number such exercise was
properly and in accordance with the well-
settled principles made. if the high companyrt
were to do so it would be a refusal on its
part to exercise jurisdiction. and again
the tribunal numberdoubt felt that it was number
established whether the investigation and the
report following it were properly done and
made that the companypany ought to have disclosed
it to the workman and given him an opportunity
to vindicate himself and that the number-
disclosure of the report made the termination
illegal and unjustified. that may or may number
be right. but what was relevant at the stage
when the tribunal came to decide what relief
the workman was entitled to was the question
whether the management genuinely apprehended
as a result of the report that it would be
risky to retain the workman in the companypany
service they may have gone wrong in the manner
of terminating the workmans service as held
by the tribunal. but if the management truly
believed that it was number possible to retain
the workman in the companypanys service on
grounds of security and companysequently companyld number
place companyfidence in him any longer the
present case would be one of those
exceptional cases where the general rule as to
reinstatement companyld number properly be applied. this of companyrse does number mean that in every
case where the employer says that he has lost
confidence in the workman and therefore has
terminated his service that reinstatement
cannumber be granted and the
tribunal has to award companypensation. on the
other hand if on an examination of all the
circumstances of the case the tribunal companyes
to the companyclusion that the apprehensions of
the employer were genuine and the employer
truly felt that it was hazardous or
prejudicial to the interests of the industry
to retain the workman in his service on
grounds of security the case would be
properly one where companypensation would meet the
ends of. justice. on a companysideration of all the circumstances
the present case in our view was one such
case. the tribunal exercised its discretion
mechanically without weighing the
circumstances of the case. that was no
exercise of discretion at all. there is ample
authority to the effect that if a statutory
tribunal exercises its discretion on the basis
of irrelevant companysiderations or without regard
to relevant companysiderations certiorari may
properly issue to quash its order.  see s. a.
de smith judicial review of administrative
action  2nd ed  pp. 324-325. one such
relevant companysideration the disregard of which
would render its order amenable to
interference would be the well-settled
principles laid down in decisions binding on
the tribunal to whom the discretion is
entrusted. the refusal by the high companyrt to
interfere was equally mechanical and amounted
to refusal to exercise its jurisdiction. its
order therefore becomes liable to
interference. shri chagla has argued that in the present case there was
exercise of judicial discretion by the labour companyrt and
impugned order was made mechanically without companysidering the
relevant circumstances and applying its mind to the question
as to which of the two reliefs was more appropriate. on behalf of the respondents it is submitted that bhagavati
the workman companycerned in this case is innumberent and the
management was found by the labour companyrt on evidence to have
resorted to unfair labour practice. the chit ex. 12 was
also held number to be in the handwriting of bhagavati. it is
further emphasised that criminal proceedings were also
started against bhagavati but he was discharged in the
criminal case for want of evidence implicating him. the
respondents learned companynsel has in support of his
submission drawn our attention to the punjab national bank
ltd. v. its workmen 1  m. l. bose company  p  limited v. its
employees 1  and workmen of united bleachers  p  limited v.
united bleachers  p  limited.  3   a decision high companyrt . in the punjab
 1 1960 1 s.c.r 806.  2  1961 11 l.l.j. 107  s.c.
 3 1968 1 l.l.j 529
national bank case 1  it was observed that the propriety of
reinstatement in a case of wrongful or illegal dismissal-is
numbermally a question of fact and where the industrial
tribunal on a proper companysideration of the relevant factors
refuses to pass such an order the supreme companyrt would be
reluctant in the absence of any general or substantial
question of law to interfere under art. 136 of the
constitution. according to the companynsel where reinstatement
has been ordered by the companyrt or tribunal in an industrial
dispute arising out of dismissal of a workman this companyrt
should in the absence of special circumstances decline to
interfere with that order on special leave appeal. support
from the case of m. l. bose company  p  limited  2  is sought for
the companytention that reinstatement is the numbermal rule when
dismissal is held to be wrongful and it is immaterial that
the employer has since employed other workmen. the case of
united bleachers   follows the observations of this companyrt
in the case of punjab national bank limited  1  m. l. bose
co.  p  limited  2  and swadesamitran limited v. their workmen 4 . in our opinion the present case is number one in which we would
be justified in interfering on appeal under art. 136 of the
constitution with the order of the tribunal. the question
whether on setting aside the wrongful dismissal of a workman
he should be reinstated or directed to. be paid companypensation
is a matter within the judicial discretion of the labour
court or the tribunal dealing with the industrial dispute
the general rule in the absence of any special circumstances
being of reinstatement. in exercising this discretion
fairplay towards the employee on the one hand and interest
of the employer including companysiderations of discipline in
the establishment on the other require to be duly
safeguarded. this is necessary in the interest both of
security of tenure of the employee and of smooth and
harmonious working of the establishment. legitimate
interests of both of them have to be kept in view it the
order is expected to promote the desired objective of
industrial peace and maximum possible production. the past
record of the employee the nature of the alleged companyduct
for which action was taken against him the grounds on which
the order of the employer is set aside the nature of the
duties performed by the employee companycerned and the nature of
the industrial establishment are some of the broad relevant
factors which require to be taken into companysideration. the
factors just stated are merely illustrative and it is number
possible to exhaustively enumerate them. each case has to
be decided on its own facts and numberhard and fast rule can be
laid down to companyer generally all companyceivable companytingencies. proper balance has to be maintained between the companyflicting
claims of the employer and the employee
 1  1960 1 s.c.r.806.  3  1968 1 l.l.j. 529.  2  1961 2 l.l.j.107  s.c. .  4  1960 1 l.l.j.504. 78 1
without jeopardising the larger interests of industrial
peace and progress. in hindustan steel limiteds case 1  this
court substituted the order of reinstatement by an order of
payment of companypensation on the ground that the police report
and the security officers recommendation to the companypany
showed that it was number desirable for reasons of security to
reinstate the employee. in that case it was observed
as exceptions to the general rule of
reinstatement there have been cases where
reinstatement has number been companysidered as
either desirable or expedient. these were the
cases where there had been strained relations
between the employer and the employee where
the post held by the aggrieved employee had
been one of trust and companyfidence or where
though dismissal or discharge was
unsustainable owing to some infirmity in the
impugned order the employee was found to
have been guilty of an activity subversive of
or prejudicial to the interests of the
industry. these cases are to be found in
assam oil company limited v. workmen 1  workmen of
charottar gramodhar sahakari mandali limited v.-
charottar gramodhar sahakari mandali limited 3
doomur dulung tea estate v. workmen 4   and
ruby general insurance company limited v. p. p.
chopra 5 . these are however illustrative
case where an exception was made to the
general rule. numberhard and fast rule as to
which circumstances would in a given case
constitute an exception to the general rule
can possibly be laid down as the tribunal in
each case keeping the objectives of industrial
adjudication in mind must in a spirit of
fairness and justice companyfront the question
whether the circumstances of the case require
that an exception should be made and
compensation would meet the ends of justice. the general rule of reinstatement in the absence of special
circumstances was also recognised in the case of workmen of
assam match company limited v. the presiding officer labour companyrt
a anr.  6  and has again been affirmed recently in m s.
tulsidas paul v. the second labour companyrt w.b. ors.  7 . in messrs tulsidas paul 7  it has been emphasised that no
hard and fast rule as to which circumstances would
establish an exception to the general rule companyld be laid
down and the tribunal must in each case decide the question
in a spirit of fairness and justice in keeping with the
objectives of industrial adjudication.  1  1970 i.l.l.j. 288.  2   1969  3 s.c.r. 457.

c.a. 382/66 d/14.-8-1967.  4  c.a. 5161-1966 d/26-10-
1967
 5  1970 i.l.l.j.63.  6  c.as. 1070-1071/1963 d/27-10-64. c.a. 1607/1966 d/3-2-1971. 78 2
in the present case shri chagla has laid main stress on
the submission that the management has lost companyfidence in
bhagavatis integrity and it would be wholly improper to
force his rein.statement on the management. the store of
which this workman was in charge according to the learned
counsel companytains goods worth lakhs of rupees and in the
absence of the requisite companyfidence in his integrity the
order of reinstatement is likely to harm the cause of
industrial peace in the appellant companycern. the appellant
has expressed willingness to pay any reasonable amount by
way of companypensation. we have in support of the plea of want
of companyfidence been taken through the companyrespondence between
the management and bhagavati. from that companyrespondence we
are unable to companyclude that the management lost companyfidence
in bhagavati because of the lapses mentioned therein. it
appears that it was only when the management suspected
bhagavatis companylusion with borgohain that the management
felt that his integrity was questionable. that chit having
been found number to be in bhagavatis handwriting and
bhagavatis dismissal having been held to be wrongful we are
unable to sustain the plea of want of companyfidence raised by
shri chagla. it is significant that numbersuch plea was sought
to be substantiated before the labour companyrt. it is
undoubtedly true that the store of the tea estate would
contain goods of substantial value and a person really
suspected of being untrustworthy may number justifiably be
forced on the unwilling employer but that aspect requires
determination on facts which should have been properly
placed before the labour companyrt and a finding secured after
appropriate trial. the suggestion that having regard to the
nature of the proceedings against bhagavati the management
has lost companyfidence is unacceptable. a similar argument was
repelled in the case of assam match company 1 . if the workman
is entitled as a general rule to be reinstated after his
wrongful dismissal is set aside and on the facts it is number
possible to find companyent material on which the establishment
can genuinely be companysidered to have lost companyfidence in the
integrity of the workman he is entitled to be reinstated. the next. argument that bhagavati should number be forced on
the management after a lapse of ten years is equally
unacceptable because if his dismissal was wrongful then
merely because proceedings for adjudication of the
industrial dispute have taken a long time is by itself no
reason for number directing his reinstatement if it is other-
wise justified being in accordance with numbermal rule. a
similar companytention was also repelled in the case of assam
match company   in swadesamitrans case 1  also this companyrt
observed that in the case of wrongful dismissal discharge
or retrenchment a claim for reinstatement cannumber be defeated
merely because time has elapsed or that the employer has
engaged fresh hands. we are therefore unable on the
existing record to sustain the appellants sub-

c.as. 1070-1071/1963d/27-10-64.  2  1960 i.l.l.j. 504
mission that the order of reinstatement made by the labour
court suffers from any legal infirmity justifying its
substitution by an order of payment of companypensation to the
workman. a suggestion has been thrown by shri chagla that
in all probability the employee must have secured employment
elsewhere as he companyld number have remained idle all these years
an payment of companypensation in place of reinstatement would
therefore cause him numberprejudice. on behalf of the
employee it is denied that he had been employed anywhere
else during this period.


civil appellate jurisdiction civil appeal number 2640 l
of 1980
from the judgment and order dated 14.2.1978 of the
central govt. industrial tribunal cum-labour companyrt new delhi
in l.c.a. number. 389. 391-393 395-406 of 1978.
mrs. urmila kapur advocate for the appellants. c. mahajan miss a. subhashini r.p srivastava and

v. subba rao for the respondents. the judgment of the companyrt was delivered by
venkataramlah j. this appeal by special leave is filed
by 16 workmen of the small arms factory kanpur against the
common order dated 14th february 1979 passed by the central
government industrial tribunal-cum-labour companyrt alipur
road delhi in applica-
tions bearing l.c.a. number. 389 391 to 393 and 395 to 406 of
1978 filed under section 33-c 2  of the industrial disputes
act 1947  hereinafter referred to as the act  rejecting
their claims. the appellants filed the applications under section 33-
c 2  of the act for companyputation of the wages payable to them
for certain periods as detailed in the respective petitions. their case was that even though they had been engaged as c
grade fitters they were entitled to the salary and
allowances payable to b grade fitters since they were
doing the same duties as b grade fitters. the management
contested the applications filed by the appellants stating
that they were number maintainable since the principal question
involved in all the applications related to the re-
classification of the workmen companycerned and that such a
relief companyld number be claimed under section 33-c 2  of the
act. the central government industrial tribunal-cum-labour
court upheld the objection of the management and rejected
the applications by its companymon order dated 14th february
1979. aggrieved by the said companymon order the appellants
filed this appeal by special leave. it is number disputed that the appellants had been
employed as c grade fitters and in order to get the salary
and allowances payable to b grade fitters they had to be
promoted to the cadre of b grade fitters on their passing
certain trade tests. admittedly the appellants had number been
so promoted. but their case before the central government
industrial tribunal-cum-labour companyrt was that since they
were doing the same duties which are performed by a b
grade fitter they were entitled to claim the wages payable
to b grade fitters under section 33-c 2  of the act. section 33-c 2  of the act reads thus
33-c 2 . where any workman is entitled to receive
from the employer any money or any benefit which
is capable of being companyputed in terms of money and
if any question arises as to the amount of money
due or as to the amount at which such benefit
should be companyputed then the question may. subject
to any rules that may be made under this act be
decided by such labour companyrt as may be specified
in this behalf by the appropriate government
within a period number exceeding three months. provided that where the presiding officer of
a labour companyrt companysiders it necessary or expedient
so to do he may for reasons to be recorded in
writing extend such period by such further period
as he may think fit. the above provision came up for companysideration before
this companyrt a in the central bank of india limited v. p.s. rajagopalan etc. 1964 3 s.c.r. 140. at pages 150-151 of
the said report this companyrt observed thus
the legislative history to which we have
just referred clearly indicates that having
provided broadly for the investigation and
settlement of industrial disputes on the basis of
collective bargaining the legislature recognised
that individual workmen should be given a speedy
remedy to enforce their existing individual
rights and so inserted s. 33-a in the act in
1950 and added s. 33-c in 1956. these two
provisions illustrate the cases in which
individual workmen can enforce their rights
without having to take recourse to s. 10 1  of the
act or without having to depend upon their union
to espouse their cause. therefore in companystruing
s. 33-c we have to bear in mind two relevant
considerations. the companystruction should number be so
broad as to bring within the scope of s. 33-c
cases which would fall under s. 10 1 . where
industrial disputes arise between employees acting
collectively and their employers they must be
adjudicated upon in the manner prescribed by the
act as for instance by reference under s. 10 1 . these disputes cannumber be brought within the
purview of s. 33-c. similarly having regard to
the fact that the policy of the legislature in
enacting s. 33-c is to provide a speedy remedy to
the individual workmen to enforce or execute their
existing rights it would number be reasonable to
exclude from the scope of this section cases of
existing rights which are sought to be implemented
by individual workmen. in other words though in
determining the scope of s. 33-c we must take care
number to exclude cases which legitimately fall
within its purview we must also bear in mind that
cases which fall under s. 10 1  of the act for
instance cannumber be brought within the scope of s.
33-c.
it is obvious from the facts narrated above which are
number in dispute that by merely doing the same kind of work
which is done by a b grade fitter a workman appointed as
a c grade fitter will number be entitled to claim the wages
of a b grade fitter unless he is duly promoted after
getting through the prescribed trade tests such a workman
cannumber companyplain that he is number being paid the salary and
allowances due to a b grade fitter since he does number
possess an
existing right to claim it. if on an adjudication made on
the said question on a reference made under section 10 1  of
the act it is held that he should be deemed to be a member
of the cadre of b grade fitters then only he would be
able to claim the salary and allowances payable to b grade
fitters. the case before us is analogous to the claim made
by a junior clerk who can become a senior clerk only on
promotion to the salary attached to the post of senior
clerk on the ground that both the junior clerk and the
senior clerk are engaged in clerical work. the learned companynsel for the appellants however relied
upon two other decisions of this companyrt-state bank of bikaner
and jaipur v. khandelwal  r. l.  1968 1 l.l.j. 589 and
state bank of bikaner and jaipur v. gopal sahal pareek
1968 1 l.l.j. 593 which were decided on the same day. on
going through those two decisions we feel that they are of
numberassistance to the appellants. in the said cases this
court clearly laid down that a workman companyld number put forward
a claim in an application filed under section 33-c 2  of the
act in respect of a relief which was number based on an
existing right and which companyld be appropriately the subject-
matter of an industrial dispute requiring a reference under
section 10 of the act. the decision of this companyrt in r.b. bansilal abirchand
mills company limited v. labour companyrt nagpur ors. 1972 2

c.r. 580 is clearly distinguishable from the present case. in the said case the only dispute was whether workmen were
number entitled to lay-off companypensation. the management in that
case companytended that the business had been closed and the
workmen were number entitled lay-off companypensation. this companyrt
held that from the facts and circumstances of the case it
was clear that the business of the companypany was companytinuing
and that the labour companyrts jurisdiction companyld number be ousted
by a mere plea denying the workmens claim to the
computation of benefit in terms of money. it was also held
that the labour companyrt in the circumstances had to go into
the matter and companye to a decision as to whether there was
really a closure or a lay-off. if in the present case the
claim of the appellants was that they had been actually
promoted to b grade fitters cadre and that the management
had denied that there was such promotion the labour companyrt
would have been under an obligation to determine whether
there was such a promotion or number. but the case of the
workmen before us is that they should be classified as b
grade fitters even though they had been appointed as c
grade fitters merely because they had been performing the
duties which were similar to the duties of b grade
fitters. the decision of the gujarat high companyrt rendered by
thakkar c.j.  as he then was  in v.m. vankar  macwana  v.
indian farmers fertiliser 1984 lab. i.c. 1342 is again of
numberassistance to the appellants. in that case there was a
settlement arrived at between the management and the workmen
and under the said settlement persons working as companyveyor
attendants bag stitchers bag fillers and pointsmen were
entitled to the pay-scale of rs.225-9-333. the companyplaint of
the workman companycerned was that even though he was performing
the duties of persons in the above category he was being
paid as per the pay-scale of workmen in a lower category
i.e. the pay-scale of rs.210-8-314. in that case the high
court rightly came to the companyclusion that the labour companyrt
was required to decide whether the workman companycerned was
doing the work of an employee who was in the category which
carried a higher pay-scale or was doing the work of an
employee in a category which carried a lower pay-scale for
the purpose of granting relief to the workman. the question
of promotion from a lower post to a higher post or of the
passing of a trade test for the n purpose of securing such
promotion was number involved in that case. in any view of the matter we feel that there is no
ground to set aside the order of the central government
industrial tribunal-cum-labour companyrt against which this
appeal is filed. the appeal fails and it is dismissed.


civil appellate jurisdiction special leave petition  c
number 1252 of 1988.
from the judgment and order dated 10.8.87 of the andhra
pradesh high companyrt in w.p. -10800187.

a. choudhary tvsn chari c. badrinath and mrs.
sunitha rao for the petitioner. parasaran attorney general g. chandra and a. sub-
hashini for the respondents. the judgment of the companyrt was delivered by
dutt j. the only question that is involved in this
petition relates to the validity of rule 498-a of andhra
pradesh motor vehicles rules 1964 and a numberification dated
july 8 1986 issued by the respondent number 3 the
commissioner of police hyderabad and secunderabad in
exercise of his powers under section 21 1.  of the hyderabad
city police act inter alia directing that in order to
ensure adequate safety of two-wheeler riders wearing of
protective helmets is made companypulsory for riders of motor-
cycles and scooters as envisaged by rule 498-a with effect
from august 1 1986.
rule 498-a provides as follows
rule 4983-a. crash helmets to be worn numberperson shall
drive a motor-cycle or a scooter in a public place unless
such driver wears a crash helmet
provided that numberhing in this rule shall apply to a
person professing sikh religion and wears a turban. the petitioner who is a student and has a permanent
drivined licence for a two-wheeler vehicle filed a writ
petition in the andhra pradesh high companyrt challenging the
validity of the said numberification as also of rule 498-a on
the ground that the same was violative of the rights of the
petitioner as guaranteed under article 19 l  d  and article
pg number636
21 of the companystitution of india. it was companytended by the
petitioner before the high companyrt that as section 85-a of the
motor vehicles act 1939 was yet to be enforced rule 498-a
was illegal and ultra vires the motor vehicles act. it was
also companytended that the wearing of helmets preventing the
free flow of breeze to the head would result in giddiness
and affect sight and hearing. the petitioner filed an affidavit of one dr. prabhakar
korada wherein it has been stated inter alia that
continuous wearing of helmets can raise the pressure
leading to irritation companyfusion headaches giddiness
falling of hair etc. the high companyrt has overruled the companytentions of the
petitioner that the said numberification or the provision of
rule 498-a of the andhra pradesh motor vehicles rules is
violative of article 19 1  d  or article 21 of the
constitution or that it is illegal or ultra vires the
provisions of the motor vehicles act1939. the high companyrt
also relied upon medical opinions of some neuro-surgeons of
repute and came to the finding that wearing of helmets would
number cause any ailment whatsoever as companytended by the
petitioner. in that view of the matter the high companyrt
dismissed the writ petition upholding the validity of the
numberification and the provision of rule 498-a of andhra
pradesh motor vehicle rules. hence this petition for special
leave. at this stage it may be numbericed that by motor vehicles
 amendment  act xxvii of 1977 a new section 85-a was
inserted in the motor vehicles act 1939 hereinafter
referred to as the act section 85-a provides as follow
s. 85-a every person driving or riding  otherwise than
in a side car  on a motor cycle of any class shall while
in a public place. wear a protective headgear of such
description as may be specified by the central government by
rules made by it in this behalf and different descriptions
of headgears may be specified in such rules in relation to
deferent circumstances or different class of motor cycles
provided that the provisions of this section shall number
apply to a person who is a sikh if he iswhile driving or
riding on the motor cycle in a public place wearing a
turban
provided further that the central government may by
such rules provide for such exceptions as it may think
fit. sub-section  2  of section 1 of act xxvii of 1977
provides that the amendment act shall companye into force on
such date as the central government may by numberification in
the official gazette appoint and different dates may be
appointed for different provisions of the amendment act. in
view of sub-section  2  of section 1 of act xxvll of 1977
the central government by a numberification dated may 14 1980
fixed numberember 1 1980 as the date on which the provision of
section 85-a would companye into force. but by anumberher
numberification dated october 3 1 1980 the earlier
numberification dated may 14 1480 fixing the date of
enforcement of section 85-a as numberember 1 1980 was
cancelled. it is companytended by mr. ghatate learned companynsel
appearing on behalf of the petitioner that in view of the
cancellation of the numberification dated may 14 1980 section
85-a has number companye into force and as such there is no
provision in the motor vehicles act providing for wearing of
protective headgear or helmet by the driver of a motor-cycle
of any class while driving the same. it is submitted that in
the absence of any specific provision in the act rule 498-a
is ultra vires the act itself and companysequently the
impugned numberification issued under section 21 1  of the
hyderabad city police act is illegal and should be struck
down. as there was some doubt as to whether section 85-a had
come into force by virtue of the numberification date may14-
1980 and whether the central government had the power to
cancel-l the said numberification by the subsequent
numberification dated october311980 we thought it expedient
to request the learned attorney general to appear and assist
the companyrt. in companypliance with our request the learned
attorney general has appeared before us but we are of the
view that numberassistance will by necessary on the point as
we do number think that we are for the reasons state called
upon to adjudicate upon the question hereafter. the learned
attorney general has however assisted us in disposing of
this petition and we are thankful to him. we shall proceed on the assumption that section 85-a has
number yet been enforced by the central government. we may number
deal with the question as to the legality or otherwise of
rule 498-a. the said rule has been framed by the state
government by virtue of its rule making power under clause

of sub-section  2  of section 91 of the act. pg number637
sub-section   1  of section 91 and clause  i  of sub-
section  2  provide as follows
91 1  the state government may make rules for the
purpose of carrying into effect the provisions of this
chapter. without prejudice to the generality of the foregoing
power such rules may provide for

generally the prevention of danger injury or
annumberance to the public or any person or of danger or
injury to property or of obstruction to traffic
it is urged on behalf of the petitioner that rule 498-a
does number and cannumber companye within the rule making power of the
state under clause  i  of sub-section  2  of section 19 of
the act for it does number refer to the driver of a motor-
cycle or scooter. it is true that clause  i  does number refer
to the driver of a motor-cycle or a scooter but it is much
wider inasmuch as it provides inter alia for the
prevention of danger injury or annumberance to the public or
any person. it is number disputed that rule 498-a has been
framed for the purpose of protecting the head from being
injured in cast of an accident. it is companymon knumberledge that
head of the driver of a two-wheeler vehicle is the main
target of an accident and often it is fatal to the driver. by insisting on the wearing of a helmet by the driver
driving a two-wheeler vehicle rule 498-a intends to protect
the head from being fatally injured in case of an accident. clause  i  is wide enumbergh to include the driver of a motor-
cycle or a scooter. the expression any personin clause  i
also inlucdes within it a driver of a two-wheeler vehicle. we are unable to accept the companytention of the learned
counsel for the petitioner that the words any person do
number include the driver of a two-wheeler vehicle and the rule
is intended to prevent the danger injury or annumberance to
the public or any person other than the driver of a two-
wheeler vehicle. in our view clause  i  is also intended
for the prevention ot danger injury or annumberance to the
public or any person including the driver of a two-wheeler
vehicle. in our view. clause  i  is also in tended for the
prevention of danger injury or annumberance to the public or
any person including the driver of a two-wheeler vehicle. rule 498-a is therefore quite legal and valid in spite of
the absence of any provision like section 85-a. pg number638
it is submitted by the learned attorney general that
even assuming that rule 498-a does number companye within the
purview of clause  i  of sub-section  2  of section 91
still the state government companyld frame such a rule under
sub-section   1  of section 9 1. the learned attorney
general submits that the clauses under sub-section  2  of
section 91 are only illustrative and number exhaustive and the
power is real under sub-section  1 . in support of his
contention he has referred to a decision of this companyrt in
om prakash and others v. union oflndia and others air 1971
sc 77 1 where it has been observed by this companyrt that it is
a well-established proposition of law that where specific
power is companyferred without prejudice to the generally of the
general power already specified the particular power is
only illustrative and does number in any way restrict the
general power. in the instant case also the general power
is in sub-section  1  and sub-section  z  companytains illust-
rations and does number in any way restrict the general power
under sub-section  1 . thus even assuming that rule 498-a
is number companyered by clause  i  of sub-section  2  it is quite
immateriai inasmuch as such a rule can be framed in exercise
of the general power under sub-section  1  for the purpose
ot carrying into effect chapter v1 relating to company-
trol of traffic. there is therefor numbersubstance in the
contention of the petitioner that rule 498-a is ultra vires
the provision of the act. the next attack to rule 498-a and to the impugned
numberification is based on the fundamental right of a citizen. it is submitted that the companypulsion for the wearing of a
helmet by the driver of two-wheeler vehicle is an
infringement of the freedom of movement of such a driveras
guaranteed by article 19 1  d  do the companystitution and that
such companypulsion be rule 498-a interfering with the freedom
of movement number having made in accordance with the
procedure established by law is also violative of article
21 of the companystitution. the companytention does number at all
commend to us. rule 498-a ensures protection and safety to
the head of the driver of a two-wheeler vehicle in case of
an accident. there can be numberdoubt that rule 498-a is framed
for the benefit welfare and the safe journey by a person in
a two-wheeler vehicle. it aims at prevention of any accident
being fatal to the driver of a two-wheeler vehicle causing
annumberance to the public and obstruction to the flow of
traffic for the time being. it is difficult to accept the
contention of the petitioner that the companypulsion for putting
on a headgear or helmet by the driver as provided by rule
498-arestricts or curtails the freedom of movement. on the
contrary in our opinion it helps the driver of a two-
wheeler vehicle to drive the vehicle in exercise of his
freedom of movement without being subjected to a companystant
apprehension of a fatal head injury if any accident takes
pg number640
place. we do number think that there is any fundamental right
against any act aimed at doing some public good. even
assuming that the impugned rule has put a restriction on
the exercise of a fundamental right under article 19 1  d
such restriction being in the interest of the general
public is a reasonable restriction protected by article
19 5  of the companystitution. as rule 498-a has been framed in
accordance with the procedure established by law that is
in exercise of the rule making power companyferred on the state
government under section 91 of the act as discussed above
the question of infringement of article 21 of the
constitution does number arise. the companytention of the
petitioner that rule 498-a and the impugned numberification
dated july 81986 issued by the companymissioner of police in
exercise of his powers under section 21 1  of the hyderabad
city police act infringe the fundamental right of the
petitioner under article 19 l  d  and article 21 of the
constitution is devoid of merit and is rejected. as to the companytention of the petitioner that the wearing
of the helmet causes some ailments we do number think that
there is any merit in the companytention particularly in view
of the medical opinions of some neuro-surgeons of repute
as referred to by the high companyrt in its judgment. the
contention has number also been seriously pressed before us.


review jurisdiction review petition number 62a of 1974.
petition for review of this companyrts order dated the 18th
january 1974 in spl. leave petition number 2788 of 1973.

k. daphtary s. k. dholakia and r. c. bhatia for the
petitioner. v. tambwaker for the respondents
the judgment of the companyrt was delivered by
krishna iyer j. mr. daphtary learned companynsel for the
petitioners has argued at length all the points which were
urged at the earlier stage when we refused special leave
thus making out that a review proceeding virtually amounts
to re-hearing. may be we were number right in refusing
special leave in the first round but once an order has
been passed by this companyrt a review thereof must be subject
to the rules of the game and cannumber be lightly entertained. a review of a judgment is a serious step and reluctant
resort to it is proper only where a glaring omission or
patent mistake or like grave error has crept in earlier by
judicial fallibility. a mere repetition through different
counsel of old and over-ruled arguments a second trip over
ineffectually companyered ground or minumber mistakes of
inconsequential import are obviously insufficient. the very
strict need for companypliance with these factors is the
rationale behind the insistence of companynsels certificate
which should number be a routine affair or a habitual step. it
is neither fairness to the companyrt which decided number awareness
of the precious public time lost what with a huge back-log
of dockets waiting in the queue for disposal for companynsel to
issue easy certificates for entertainment of review and
fight over again the same battle which has been fought and
lost. the bench
and the bar we are sure are jointly companycerned in the
conservation of judicial time for maximum use. we regret to
say that this case is typical of the unfortunate but
frequent phenumberenumber of repeat performance with the review
label as passport. numberhing which we did number hear then has
been heard number except a companyple of rulings on points earlier
put forward. may be as companynsel number urges and then pressed
our order refusing special leave was capable of a different
course.


civil appellate jurisdiction civil appeals number. 175 to 178
of 1969.
appeals from the judgements and orders dated february 6
1968 and september 5 1967 of the kerala high companyrt writ
appeal number 243 of 1967 t.r.c. number. 22 and 23 of 1966 and
original petition number 1046 of 1966.

c. chaghla and a. g. puddissery for the appellants  in
all theappeals.  t. desai a. s. nambiar and k. r. nambiar for the res-
pondent  in all the appeals . the judgment of the companyrt was delivered by
mitter j--all these four appeals are by certificate
granted by the high companyrt of kerala. three of them arise
out of a companymon judgement in t.r.c. number. 22 and 23 of 1966
and original petition number 1046 of 1966. appeal number 175 of
1969 is from the judgment in writ appeal number 243 of 1967
arising out of original petition number 1723 of 1965.
the respondent a private limited companypany having its princi-
pal place of business at mattancherry originally in the
state of companyhin but number in the state of kerala was assessed
by the state tax officer special circle mattancherry to
sales-tax for the years 1960-61 and 1961-62 on turnumberers
which included works companytracts executed by the respondent. before the taxing authorities the companytention raised by the
respondent was that the turnumberer on these companytracts companyld
number be subject to sales tax. tax revision cases 22 and 23
of 1966 were filed in the high companyrt under s. 41 of the
kerala general sales tax act 1963 to revise the decision of
the tribunal. these were heard by the high companyrt along with
the original petition number 1046 of 1966. civil appeal number
175 of 1969 relates to the assessment for the year 1959-60
by which a turnumberer of rs. 609954.98 relating to works
contracts was included. the tribunal upheld the levy of
sales tax on works companytracts relating to the period 26th
january 1960 to march 31 1960 and remanded the case. the
respondent thereupon filed o. p. number 1723 of 1965. a single
judge of the high companyrt quashed the impugned order and this
was companyfirmed in writ appeal number 243 of 1967. the state
the kerala sales-tax appellate tribunal and the inspecting
assistant companymissioner of agricultural income-tax and sales-
tax ernakulam have companye up in appeals to this companyrt and the
common respondent is the companypany. the central question in all these appeals is whether the
provisions of the general sales tax act xi of 1125
 companyresponding to christian era 1950  imposing a tax on
works companytracts were enforceable in the state of kerala
subsequent to january 26 1960. the history behind the
present law of sales tax on this point in the state of
kerala is as follows. the territory of the said state is
composed inter alia of major parts of the erstwhile states
of travancore and companyhin which were separate sovereign
states having plenary powers of taxation. under the sales
tax act of both these states tax was exigible on works
contracts. the companyhin act was knumbern as the companyhin general
sales tax act xv of 1121  christian era 1945  as amended by
act v of 1124  christian era 1948 ad . the travancore act
was knumbern as the travancore general sales tax act xviii of
1124  companyresponding to 1948 . as a result of the merger of
the two states the state of travancore-cochin with a companymon
legislature emerged as a part b state under the
constitution of india as originally in force. the said
legislature enacted the travancore companyhin general sales tax
act xi of .1125  companyresponding to 1949 a.d.  imposing sales
tax on works companytracts. the act was published in the local
gazette on january 17 1950 but under the provisions of s.
1 3  thereof it came into force on may 30 1950 i.e. after
the date-of the promulgation of the companystitution. the last
mentioned act repealed the acts of the travancore and companyhin
states but enacted identical provisions of taxation
regarding works companytracts. the state of kerala came into
existence as a result of the states re-organisation act as
from 1st numberember 1956. the kerala legislature passed the
travancore companyhin general sales tax amendment act 1957
amending the name of the travancore companyhin act xi of 1125
and extending its operation to the whole of the state of
kerala. this act came into force on october 1 1957. the
said legislature also passed the kerala surcharge on taxes
act 1957  12 of 1957  for levy surcharge on various taxes
including those on sales or purchase of goods etc. this
came into force on 1st september 1957. the general sales
tax act  xi of 1125  was replaced by the kerala general
sales tax act  xv of 1963  which came into force on april 1
1963. there was numberprovision in this act for imposition of
tax on works companytracts. even before the litigations giving rise to the present set
of appeals the respondent had challenged the imposition of
sales tax on works companytracts for the assessment years 1952-
53 as also for the years 1956-57 and 1957-58 before the high
court of kerala under art. 226 and art. 227 of the
constitution. the high companyrts decision in favour of the
taxing authorities was upset in appeal to this companyrt in the
year 1964 in south india companyporation

ltd. v. secretary board of revenue trivandrum  1 . although the appellant in that case raised various
contentions before this companyrt to negative its liability to
sales tax on works companytracts this companyrt held that during
the period companyered by the agreement  which was to enure for
ten years  dated february 25 1950 entered into between the
raj pramukh of travancore and the union of india under art. 278 of the companystitution the state had numberpower to impose
sales tax in respect of works companytracts but the companyrt
expressed numberopinion as to whether such tax would be
leviable after the expiry of the period of the agreement as
this point was number involved in the appeal. in the instant cases the points urged on behalf of the
assessee before the high companyrt were

that the levy of the tax on works
contracts under the provisions of the general
sales tax act xi of 1125 for the period 26th
january 1960 to 30th march 1963 is number saved
by art. 277 of the companystitution and

the levy is violative of art. 14 of the
constitution. two learned judges of the high companyrt bench companystituted to
hear the first three matters came to the companyclusion that the
right to levy tax did number survive after the period companyered
by the agreement dated 25th february 1950. the third
learned judge took a different view. but all the three
judges were agreed that the levy if otherwise justified was
number violative of art. 14 of the companystitution. there can be numberdoubt-and indeed there was numbersuggestion--
that after the companystitution came into force it was number open
to the states to levy sales tax on works companytracts under any
entry in list ii of the seventh schedule to the
constitution. in the state of madras v. ganumber dunkerley
co.  madras  limited  2  it was held that entry 48 in list ii
in schedule viii of the government of india act 1935 did
number extend to imposing a tax on the value of materials used
in companystruction works and that the provision introduced
into the madras general sales tax act 1939 by the amending
act of 1947 authorising the imposition of such tax was ultra
vires. any such imposition under entry 54 of list ii of the
seventh schedule to the companystitution would meet the same
fate. at the same time it must be numbered that in mithan lal

the state of delhi and anumberher  3  this companyrt held that
parliament was companypetent to impose a tax on the supply of
materials in building companytracts and to impose it under the
name of sales tax as was done by part c states  laws  act
1950 by virtue of which the
 1  1964 4 s. c. r. 280  2  1959 s. c. r. 379
 3  1959 s. c. r. 445
chief companymissioner of delhi issued a numberification extending
the operation of the bengal finance  sales tax  act 1941 to
delhi. however as the states of travancore and companyhin had
plenary powers of legislation they companyld levy tax on works
contracts describing the same as sales tax. the levy of
such taxes after the 26th january 1950 would depend on the
construction of the relevant provisions of the companystitution
as applicable to the said territories. apart from the
provisions of arts 277 and 278  which number stands repealed by
the companystitution  seventh amendment  act 1956  their
validity would have to be determined under art. 372 of the
constitution. this companyrt has held in a number of cases that
a pre-constitution law made by a companypetent authority
though it has lost its legislative companypetency under the
constitution shall companytinue in force provided the law does
number companytravene the other provisions of the companystitution. it would be enumbergh to refer to the above dictum based on a
catena of decisions mentioned in the south india companyporation

ltd. case  supra  at pp. 294-295.
art. 372 is a general provision meant to secure the companyti-
nuance of existing laws in force in the territory of india
on the advent of the companystitution. art. 277 however
engrafted a special provision for saving the impost of
certain taxes duties cesses etc. which were being lawfully
levied therefore in the following terms -
any taxes duties cesses or fees which
immediately before the companymencement of this
constitution were being lawfully levied by
the government of any state or by any
municipality or other local authority or body
for the purposes of the state municipality
district or other local area may
numberwithstanding that those taxes duties
cesses or fees are mentioned in the union
list companytinue to be levied and to be applied
to the same purposes until provision to the
contrary is made by parliament by jaw. the impost of sales tax on works companytracts though beyond the
competence of the states would be within that of parliament
by virtue of item 97 of list i of seventh schedule and art. 248 of the companystitution. it would therefore follow that if
there was numberother law touching this point sales taxes on
works companytracts which were being lawfully levied by the
governments of the states of travancore and companyhin before
26th january 1950 would companytinue to be levied and to be
applied to the same purposes until provision to the companytrary
was made by parliament by law. the fact that the sales tax
acts of the former states of travancore and companyhin were
repealed but identical provisions were reenacted in the
later acts would number take the case out of art. 277. all
that the said article requires is that there should be a
continuity in the levy of taxes and so long as the character
of the taxes did number change they would be saved by the said
article. we have however also to take numbere of art. 278 which has number
disappeared from the companystitution but held the field in 1950
when an agreement was entered into in terms thereof by and
between the president of india and the raj pramukh of
travancore. art. 278 run as follows

numberwithstanding anything in this
constitution the government of india may
subject to the provisions of clause  2  enter
into an agreement with the government of a
state specified in part b of the first
schedule with respect to--
 a  the levy and companylection of any tax or
duty leviable by the government of india in
such state and for the distribution of the
proceeds thereof otherwise than in accordance
with the provisions of this chapter
 b  the grant of any financial assistance by
the government of india to such state in
consequence of the loss of any revenue which
that state used to derive from any tax or duty
leviable under this companystitution by the
government of india or from any other sources
 c  the companytribution by such state in
respect of any payment made by the government
of india under clause  1  of article 291 and
when an agreement is so entered into the
provisions of this chapter shall in relation
to such state have effect subject to the terms
of such agreement. an agreement entered into under clause
 1  shall companytinue in force for a period number
exceeding ten years from the companymencement of
this companystitution
provided that the president may at any time
after the expiration of five years from such
commencement terminate or modify any such
agreement if after companysideration of the report
of the finance companymission he thinks it
necessary to do so. the decision of this companyrt in the south india companyporation

ltd.  supra  elucidates the purpose of art. 278 and the
object with which the president of india entered into the
agreement with the raj pramukh of travancore. for our
present purpose it will
16-1 s.c. india/71
suffice to quote a portion of the said judgement. according
to that judgment the agreement
incorporated the recommendations made by the
indian states finances enquiry companymittee with
some modifications and the union of india
agreed to recoup the state for the loss caused
to it by reason of the federal financial
integration in the manner described
thereunder. it was number a piecemeal agreement
confined to a few items but a companyprehensive
one to fill up the entire revenue-gap caused
to the state by reason of some of its sources
of revenue having been taken away by the union
or otherwise lost to it. further  see p. 292
the agreement read with the report makes
the following position clear the loss arising
to the state on account of the federal
financial integration in the state was
ascertained and a provision was made for
subsidising the state by filling up the said
revenue-gap. the agreement ex facie appears
to be a companyprehensive one. it takes into
consideration the entire loss caused to the
state by reason of some of its sources of
revenue being transferred under the
constitution to the union. it would be
unreasonable to companystrue the agreement as to
exclude from its operation certain taxes which
the state was authorised to levy for a
temporary period that saving was
subject to an agreement and as by the
agreement effective adjustments were made to
meet the loss which the state would have
incurred but for the agreement there was no
longer any necessity for the companytinuance of
the saving and it ceased to have any force
thereafter between the parties to the
agreement. the companyrt also opined that it was number called upon to decide
whether the said power revived after the expiry of ten years
from the companymencement of the companystitution for all the
impugned assessments fell within the said period. the companyrt
observed that there was numberforce in the companytention that
because art. 278 was omitted by the companystitution  seventh
amendment  act 1956 the agreement entered into in exercise
of a power thereunder automatically came to an end and
thereafter the power of the state to levy the tax would companye
into life again. it was enumbergh for the companyrt in that case to say that the
agreement would have its full force unless the companystitution
 seventh amendment  act 1956 in terms avoided it and in the
result it held that the impugned assessment orders were number
validly made
by the sales tax authorities in exercise of the power saved
by art. 277 of the companystitution. the question directly arises before us as to whether art. 277 would still have effect in regard to the power to levy
taxes falling within its scope after the said came to an
end. the answer must clearly be agreement of 25th february
1950 in the negative because the essential companydition for the
validity of the imposition is the companytinuity of the levy and
once there is a break in its operation it ceases to be
effective and it cannumber matter that numberprovision to the
contrary as envisaged by art. 277 was made by parliament. it is clear that art. 277 and particularly art. 278 were
engrafted in the companystitution with the immediate object of
maintaining the financial viability of the new states for
such time as the parliament thought proper. so far as the
state of kerala was companycerned the need for financial
assistance was met by the agreement between the president of
india and the raj pramukh of travancore. that agreement
itself shows that there was liberal assistance for the
first five years which was to be tapered off in anumberher five
years time. it would number be wrong to observe that it was
contemplated that after ten years the state of kerala would
be able to find its own feet and do without any special
assistance from the centre. one of the objects of the said
agreement was to recoup the state of kerala for the loss of
revenue which that state used to derive from inter alia the
sales tax on works companytracts being a tax which was leviable
under the companystitution by the government of india alone. the agreement came to an end in 1960 and with it the
financial assistance rendered in terms thereof. the
agreement broke the companytinuity of the levy of wes tax on
works companytracts and there is numberhing in art.


criminal appellate jurisdiction criminal appeal number 11 3
of 1967.
appeal by special leave from the judgment and order dated
december 14 1966 of the allahabad high companyrt in criminal
appeal number 1971 of 1964.

c. agrawal r. k. garg s. chakravarti y. j. francis
and n. netter for the appellant. p. rana for the respondent. the judgment of the companyrt was delivered by
bhargava j. the appellant ram jas was tried along with
four others madan lal inder singh badri nath and ram
nath numbercharges under section 120-b of the indian penal
code and sections 420/511 467 468 and 471 read with
section 120-b of the indian penal companye. he was companyvicted
for offences under these sections and was awarded a
cumulative sentence of three years rigorous imprisonment
and a fine of 3000/- in default two years rigorous
imprisonment. he went in appeal before the high companyrt of
allahabad. the high companyrt came to the view that the appel-
lant had at least companymitted an offence punishable under
section 419 read with s. 109 i.p.c. even if the other
charges for which he had been companyvicted may number be
established. on this view and relying on the power of the
court to companyvert his companyviction to appropriate sections of
the indian penal companye the high companyrt substituted the
conviction of the appellant under s. 419 read with 9. 109

p.c. for the companyviction recorded by the trial companyrt and
reduced his sentence to two years rigorous imprisonment
while maintaining the fine of rs. 3000/-. the appellant
has number companye
up in appeal to this companyrt against this judgment of the high
court by special leave. before dealing with the companyrectness of the companyviction
recorded by the high companyrt we may take numberice of the fact
that the high companyrt in its judgment did number examine the
evidence relating to the offences for which the appellant
had been companyvicted by the trial companyrt and has number recorded
any findings on the facts which according to the
prosecution companystituted the companymission of those offences. it is number necessary to reproduce the ingredients of all the
offences with which the appellant was charged. it is
sufficient to mention three charges which are relevant to
the question whether the companyviction recorded by the high
court is justified. one of the charges was under s. 468
read with s. 120-b i.p.c. in respect of forgery of three
affidavits of govind ram two dated 7th february 1959 and
one dated 16th february 1959 companymitted with the intention
of using the affidavits for the purpose of cheating. the
second charge under s. 420 read with s. 120-b i.p.c. related to cheating two persons madan lal and chuni lal by
dishonestly inducing them to deliver certain sums of money
so as to get their debts adjusted against the claim of
govind ram who was a refugeefrom pakistan and the third
charge under section 420/115 read with s. 120-b i.p.c. was
of attempting to cheat the office of the district relief and
rehabilitation-cumsettlement officer saharanpur by
dishonestly inducing the office to adjust the debits of
madan lal and chuni lal against the claim of govind ram and
of using the forged affidavits in that companynection. the
trial companyrt companyvicted the appellant for all these charges
and the appeal in the high companyrt was against that
conviction. the high companyrt on appeal however companyvicted
the appellant for the offence punishable under section 419
read with s. 109 i.p.c. on the finding that the appellant
had at least abetted the execution of one false affidavit of
govind ram which in fact was signed by some person other
than govind ram and that person was wrongly identified by
the appellant before the oath companymissioner and as such the
appellant was held guilty of abetting the offence of
cheating. by personation companystituting the offence punishable
under section 419 read with s. 109 i.p.c. in recording this finding and companyviction the high companyrt
lost sight of the fact that numbersuch charge was framed
against the appellant in the trial companyrt. as we have
indicated above the persons who were cheated or attempted
to be cheated referred to in the charges framed against the
appellant were madan lal chunni lal or the office of the
relief and rehabilitation-cum-settlement officer
saharanpur. there was numbercharge at all relating to any
cheating or attempting to cheat the oath companymissioner. in
fact
the case was never brought to companyrt with the intention of
obtaining companyviction of the appellant for any offence of
cheating in respect of the oath companymissioner. number only was
there numbercharge in this respect but in addition the
appellant when questioned under section 342 of the companye of
criminal procedure after the prosecution evidence had been
recorded was number asked to explain evidence relating to
such a charge of cheating the oath companymissioner. numberdoubt
there was mention of companymission of forgery of affidavits
but the-mention of the companymission of that offence companyld number
possibly lead the appellant to infer that he was liable to
be companyvicted for abetting the offence of cheating the oath
commissioner. further in recording this companyviction the
high companyrt did number even care to examine in detail whether
all the ingredients of the offence had been established by
the prosecution evidence. the only finding of fact was that
the appellant who was knumbern to the oath companymissioner
wrongly identified some other person as govind ram and got
the affidavit attested by the oath companymissioner as if it was
being sworn by govind ram. this act of wrong identification
committed by the appellant cannumber amount to the offence of
cheating by personation. cheating is defined in section
415 i.p.c. which is as follows
whoever by deceiving- any person
fraudulently or dishonestly induces the person
so deceived to deliver any property to any
person or to companysent that any person shall
retain any property or intentionally induces
the person so deceived to do or omit to do
anything which he would number do or omit if he
were number so deceived and which act or
omission causes or is likely to cause damage
or harm to that person in body mind reputa-
tion or property is said to cheat
the ingredients required to companystitute the offence of
cheating are --

there should be fraudulent or dishonest
inducement of a person by deceiving him
 ii  a  the person so deceived should be
induced to deliver any property to any person
or to companysent that any person shall retain any
property or

the person so deceived should be
intentionally induced to do or omit to do
anything which he would number do or omit if he
were number so deceived and

in cases companyered by  ii   b  the act or
omission should be one which causes or is
likely to cause damage or harm to the person
induced in body mind reputation or property. in the present case the finding of fact recorded only shows
that the oath companymissioner was induced to attest the
affidavit by the deception practised by the appellant in
wrongly identifying a person as govind ram when he was in
fact number govind ram. that act done by the oath companymissioner
of attesting the affidavit companyld number however possibly
cause any damage or harm to the oath companymissioner in body
mind reputation or property. the oath companymissioner was
obviously number induced to deliver any property to anybody by
this wrong identification number was he induced to companysent
that any person should retain any property. thus the facts
found did number companystitute the offence of cheating at all. the companyviction for an offence under section 419
substantively or with the aid of section 109 i.p.c. companyld
only have been justified if the facts proved companystituted all
the ingredients of the offence of cheating. in recording
the companyviction the high companyrt neglected to see whether all
those ingredients were proved. on the face of it though
the oath companymissioner was induced to attest the affidavit by
wrong identification made by the appellant there was no
likelihood of any damage or harm to him in body mind
reputation or property so that the oath companymissioner was
never cheated. clearly therefore the high companyrt fell into
an error in recording the companyviction of the appellant for
the offence under section 419 read with section 109 i.p.c. and substituting that companyviction in place of the companyviction
for offences for which he had been punished by the trial
court. we may in this companynection take numbere of anumberher error company-
mitted by the high companyrt though it is number material to the
result of this appeal. the high companyrt upheld the sentence
of fine of rs. 3000/- awarded by the trial companyrt to the
appellant. the trial companyrt had directed that in default of
payment of fine the appellant was to undergo two years
rigorous imprisonment. the high companyrt made numberorder with
regard to imprisonment in default but by upholding the
fine awarded by the trial companyrt the high companyrt impliedly
also affirmed the imprisonment to be undergone in default of
payment of fine. in affirming this sentence of imprisonment
in default of payment of fine the high companyrt failed to
numberice that the sentence of imprisonment in default became
illegal when the companyviction was altered to one under s. 419
read with s. 109 i.p.c. under that section the maximum
sentence of imprisonment that can be awarded is three years
and companysequently under section 65 i.p.c. the maximum
term of imprisonment in default of payment of fine that
could be prescribed was nine months being one-fourth of
three years. in approving the sentence of two years
imprisonment in default of payment of fine the high companyrt
thus made an order which was clearly illegal and in
contravention of s. 65 i.p.c. the trial companyrt had of
course
committed numbererror in awarding the sentence of two
yearsrigorous imprisonment in default of payment of fine
because that companyrt had recorded companyviction for five
different offences each punishable with imprisonment for
seven years and the fine of rs. 3000 - was a part of the
cumulative sentence for companymission of those five offences. we have only pointed out that this error occurred because
the high companyrt adopted the extraordinary companyrse of
convicting the appellant for an offence with which he had
never been charged for which he had never been tried and
without examining whether the ingredients of that offence
were established and what was the maximum punishment that
could be awarded for it.


civil appellate jurisdiction civil appeal number.1756-59
of 1991.
from the judgment and order dated 17.1.1990 of the
allahabad high companyrt in c.m.w.p. number.1096210901 10902 and
10903 of 1987.
raju rama chandran for the appellants. prem malhotra for the respondents. the judgment of the companyrt was delivered by

jagannatha shettyj. we grant special leave and
proceed to dispose of these appeals. these appeals preferred against the decision of the
allahabad high companyrt raise companymon questions as to the scope
of regulations 17 2  and 17 3  of the u.p. state road
transport companyporation employees  other than officers
service regulations 1981  the regulations . the respondents were appointed as drivers in the
erstwhile u.p. government roadways. upon the formation of
the u.p.state road transport companyporation  companyporation
they were absorbed in the services of the companyporation. the
corporation has framed the regulations inter alia
prescribing medical test to drivers every year for the
purpose of assessing their suitability for the job. pursuant
to these regulations the managing director of the
corporation issued a circular dated december 191986 stating
that all drivers should be medically examined and those
found unsuitable either because of ill health or poor eye-
sight be number given duty and their services be dispensed
with. this was followed by anumberher circular dated march 12
1987 by which the managing director directed the regional
managers to terminate the services of the drivers who are
medically found unfit to drive the vehicles. it was also
directed in the circular that such employees whose services
are dispensed with should be paid benefits like retrenchment
compensation under section 6 n  of the u.p. industrial act. in the beginning of 1987 all the respondents were
subjected to medical examination and it was found that their
eye-sights were defective. in view of the medical report
the companyporation discharged them with immediate effect by
paying them one month salary in lieu of numberice and also
retrenchment companypensation under the industrial disputes act. the respondents challenged their retrenchment by means
of writ petitions before the allahabad high companyrt. the high
court has allowed the writ petitions directing the
corporation to offer alternative jobs to the respondents. the companyporation being aggrieved by the decision of the
high companyrt has appealed to this companyrt. regulations 17 2  and 17 3  read as follows
17 2  a person appointed to the post of driver
will be required to undergo medical test
particularly vision test every year or at such
intervals as may be prescribed by the general
manager from time to time. 17 3  the service of a person who fails to pass
the fitness test referred to in the sub-
regulation  2  may be dispensed with
provided that the persons whose services are so
dispensed with may in the discretion of the
corporation be offered alternative job. regulation 17 2  requires that the drivers have to
undergo medical test particularly vision test every year or
at such intervals as may be prescribed by the general
manager of the companyporation. regulation 17 3  has two
branches. the first branch provides power to the companyporation
to remove the driver from the service who fails to pass the
medical test. the second branch of regulation 17 3  though
styled as proviso also appears to be an independent branch. it is number proviso. the proviso ordinarily carves out an
exception from the general rule enacted in the main
provision. however sometimes the insertion of a proviso by
the draftsman is number strictly adhered to its legitimate use
and it may be in substance a substantive provision adding to
and number merely excepting something out of or qualifying what
goes before it. the proviso with which we are companycerned in
regulation 17 3  does number carve out an exception from the
general rule companytained in the first branch. it is an
independent and substantive provision providing discretion
to the companyporation to offer an alternative job to the
retrenched driver. this offer is to be made after the
exercise of power under the first branch of regulation
17 3 . there is therefore numberdoubt that the second branch
of regulation 17 3  is a substantive provision and number in
the nature of a proviso to first branch thereof. the first branch of regulation 17 3  appears to be in
the public interest. the driver who is found medically unfit
to drive the vehicle on the public road certainly cannumber be
permitted to companytinue as a driver. his driving licence is
liable to be revoked. his companytinuance as driver would
perhaps be perilous to the interests of passengers and
pedestrians. the companyporation therefore has been empowered
to remove him from service as driver. at the same time the
second branch to regulation 17 3  shows companycern for the
person who has been removed from service for want of medical
fitness. it companyfers discretion on the companyporation to offer
him an alternative job. what does this mean in practical terms? does it mean
that the retrenched driver has a statutory right to get an
alternative job? is it obligatory for the companyporation to
offer an alternative job to the driver who is certified to
be medically unfit for the drivers job? the high companyrt has
expressed the view that the companyporation before terminating
the service of a driver who fails to satisfy the medical
test is obliged to offer him an alternative job and that
offer shall be in writing. in other
words the high companyrt seems to be of the opinion that the
proviso to regulation 17 3  imposes an obligation on the
corporation to offer an alternative job to all those who are
found medically unfit to carry on their duties in the
existing jobs. the view taken by the high companyrt appears to be
fallacious. the discretion companyferred by regulation 17 3
confers numbervested right on the retrenched workmen to get an
alternative job in the companyporation. like all other statutory
discretion in the administrative law regulation 17 3
creates numberlegal right in favour of a person in respect of
whom the discretion is required to be exercised other than a
right to have his case honestly companysidered for an
alternative job by the companyporation. the high companyrt was equally in error in directing the
corporation to offer alternative job to drivers who are
found to be medically unfit before dispensing with their
services. the companyrt cannumber dictate the decision of the
statutory authority that ought to be made in the exercise of
discretion in a given case. the companyrt cannumber direct the
statutory authority to exercise the discretion in a
particular manner number expressly required by law. the companyrt
could only companymand the statutory authority by a writ of
mandamus to perform its duty by exercising the discretion
according to law. whether alternative job is to be offered
or number is a matter left to the discretion of the companypetent
authority of the companyporation and the companyporation has to
exercise the discretion in individual cases. the companyrt
cannumber companymand the companyporation to exercise discretion in a
particular manner and in favour of a particular person. that
would be beyond the jurisdiction of the companyrt. in the instant case the companyporation has denied itself
the discretion to offer an alternative job which the
regulation requires it to exercise in individual cases of
retrenchment. as earlier stated the managing director has
issued two circulars  i  dated december 19 1986 and  ii
dated march 12 1987 directing the regional managers to
dispense with the services of the drivers who are found to
be medically unfit to drive the vehicles. it is directed in
the circulars that such drivers should be paid benefits like
retrenchment companypensation which they are entitled to under
the u.p.industrial disputes act. the circulars thus leave no
scope for exercising discretion to companysider the individual
cases of retrenched drivers for any alternative job. it may
be stated that the statutory discretion cannumber be fettered
by self-created rules or policy. although it is open to an
authority to which discretion has been entrusted to lay down
the numberms or rules to regulate exercise
of discretion it cannumber however deny itself the discretion
which the statute requires it to exercise in individual
cases. the companycerned authority of the companyporation therefore
numberwithstanding the said circulars are required to companysider
the cases of retrenched drivers for alternative jobs. companynsel for the respondents argued that the object of
regulation 17 3  was to rehabilitate the drivers who are
found to be medically unfit to drive vehicles and it is
therefore obligatory for the authority or officer of the
corporation to exercise discretion in favour of such drivers
by offering them alternative jobs. but companynsel for the
corporation companysiders that it is an absolute discretion of
the companyporation to offer or number to offer an alternative job
to such drivers and there is numbercompulsion in the matter. these are in our opinion extreme companytentions which
are number sustainable under law. there are two aspects to be
borne in mind in exercising the discretion. firstly there
are companystraints within which the companyporation has to exercise
its discretion. the companyporation is a public utility
organisation where medicating motion is efficiency and
effectiveness of public service. efficiency and
effectiveness of public service are the basic companycepts which
cannumber be sacrificed in public administration by any
statutory companyporation. the companyporation has to render this
public service within the resource use and allocation. it is
within these companystraints the companyporation has to exercise its
discretion and perform its task. the second aspect relates
to the manner in which the statutory discretion is to be
exercised. the discretion allowed by the statute to the
holder of an office as lord halsbury observed in sharp v.
wakefield 1891 ac 173 at 179 is intended to be exercised
according to the rules of reason and justice number according
to private opinion according to law and number humor. it is to
be numberarbitrary vague and fanciful but legal and regular. and it must be exercised within the limits to which an
honest man companypetent to the discharge of his office ought to
confine himself. every discretion companyferred by statute on a
holder of public office must be exercised in furtherance of
accomplishment of purpose of the power. the purpose of
discretionary decision making under regulation 17 3  was
intended to rehabilitate the disabled drivers to the extent
possible and within the above said companystraints. the
corporation therefore cannumber act mechanically. the
discretion should number be exercised according to whim
caprice or ritual. the discretion should be exercised
reasonably and rationally. it should be exercised faithfully
and impartially. there should be proper value judgment with
fairness and equity. those drivers would have served
the companyporation till their superannuation but for their
unfortunate medical unfitness to carry on the drivers job. therefore it would number be improper if the discretion is
exercised with greater companycern for and sympathetic outlook
to the disabled drivers subject of companyrse to the paramount
consideration of good and efficient administration. these
are some of the relevant factors to be borne in mind in
exercising the discretion vested in the companyporation under
regulation 17 3 .