civil appellate jurisdiction civil appeal number 313 of 1993.
from the judgment and order dated 9.10.1992 of the karnataka
high companyrt in election petition number 8 of 1991.

n. misra for the appellants. n. narasimha murthy e.c. vidyasagar and gopal singh for
the respondents. the judgement of the companyrt was delivered by

p. jeevan reddy j. heard the companynsel for the parties. leave granted. this appeal raises the question whether section 5 of the
limitation act 1963 is applicable to a recrimination numberice
given under section 97 of the representation of people act
1951. the learned single judge of the karnataka high companyrt
has held that it does number. his view is questioned by the
returned candidate  first respondent in the election
petition  before us. the first respondent in the election petition who shall
hereinafter be referred to as appellant was declared
elected from koppal parliamentary companystituency during the
general elections held for the 10th lok sabha. he companytested
on the companygress  1  ticket. the election-petitioner
referred to hereinafter as the first respondent had also
contested from the said companystituency on the ticket of janata
dal. having lost the election the first respondent filed
an election petition number 8 of 1991 for a declaration that
the election of the appellant from the said parliamentary
constituency was void and for a further declaration that he
himself has been duly elected therefrom. since the
appellant and some other respondents to the election
petition companyld number be served in the ordinary companyrse the
high companyrt directed publication of numberice in a kannada daily
newspaper. it was so published on 4.11.1991 fixing the date
of appearance of the respondents on 25.11.1991. the
appellant  first respondent in the election petition  ap-
peared before the high companyrt on 4.11.1991 and sought time
for filing his written statement which he did on 6.11.1992.
thereafter on 21.1.1992 he submitted the recrimination
numberice under section 97 of the act. by the said numberice the
appellant expressed his intention to give evidence to prove
that
the election of the first respondent would have been void if
he had been he returned candidate and a petition had been
presented calling in question his election. along with the
recrimination numberice he filed an application under section 5
of the limitation act requesting the high companyrt to companydone
the delay in filing the same for the reasons stated therein. according to the proviso to section 97 j  numberice of such
intention should have been given to the high companyrt within
14 days from the date of companymencement of trial. admittedly the appellant gave numberice under section 97 1
beyond the period of 14 days and hence the application under
section 5.
for a proper appreciation of the question arising herein it
would be appropriate to numberice the relevant provisions of
the representation of people act besides section 29 2  of
the limitation act 1963. first the provisions of the
representation of people act. section 97 reads as follows

recrimination when seat claimed.-  1
when in an election petition a declaration
that any candidate other than the returned
candidate has been duly elected is claimed
the returned candidate or any other party may
give evidence to prove that the election of
such candidate would have been void if he had
been the returned candidate and a petition had
been presented calling in question his
election
provided that the returned candidate or such
other party as aforesaid shall number be entitled
to give such evidence unless he has within
fourteen days from the date of companymencement of
the trial given numberice to the high companyrt of
ins intention to do so and has also given the
security and the further security referred to
in sections 117 and 118 respectively. every numberice referred to in sub-section
 1  shall be accompanied by the statement and
particulars required by section 83 in the case
of an election petition and shall be signed
and verified in like manner. sub-section  1  of section 97 permits the returned candidate
or any other party to give evidence  in an election petition
seeking a declaration that any candidate other than the
returned candidate has been duly elected  to
prove that the election of such candidate would have been
void if he had been the returned candidate and a petition
had been presented calling in question his election. sub-
section  2  says that such a numberice shall be accompanied by
a statement and particulars required by section 83 in the
case of an election petition and shall also be signed and
verified in the same manner. proviso to sub-section  1
says that such a numberice shall be given within fourteen days
from the date of companymencement of trial and the security
and further security referred to in sections 117 and 118
respectively is furnished. the expression companymencement of
trial has been defined in explanation to sub-section 4  of
section 86. the explanation reads
for the purposes of this sub-section and of
section 97 the trial of a petition shall be
deemed to companymence on the date fixed for the
respondents to appear before the high companyrt
and answer the claim or claims made in the
petition. according to the said definition the numberice of the
recrimination should have been given in this case within
fourteen days of 4.11.91. admittedly it was submitted
beyond the said period. section 83 deals with companytents of
petition. according to sub-section  1  an election
petition  a  shall companytain a companycise statement of the
material facts on which the petitioner relies  b  shall set
forth particulars of any companyrupt practice that the
petitioner alleges including as full a statement as possible
of all the names of the parties alleged to have companymitted
such companyrupt practice and the date and place of the
commission of each of such practice and  c  shall be signed
by the petitioner and verified in the manner laid down in
the companye of civil procedure 1908 for the verification of
pleadings. the proviso to sub-section  1  says that where a
petitioner alleges any companyrupt practice the petition shall
also be accompanied by an affidavit in the prescribed form
in support of the allegation of such practice and
particulars therein. sub-section  2  says that any schedule
or annexure to the petition shall also be signed by the
petitioner and verified in the same manner as the petition. section 117 requires the election petitioner to deposit in
the high companyrt at the time of presenting an election
petition a sum of rs. 2000 as security for the companyts of
the petition in accordance with the rules of the high companyrt. section 118 says that numberperson shall be entitled to be
joined as a respondent under sub-section  4  of section 86
unless he has given such security for companyts as the high
court may direct. section 86 1  declares that the
high companyrt shall dismiss an election petition which does number
comply with the provisions of section 81 or section 82 or
section 117.
there is numberprovision in the representation of people act
1951 making all or any of the provisions of the limitation
act applicable to the proceedings under the act. the
appellant however relies upon section 29 2  of the
limitation act. according to him by virtue of the said
provision all the provisions companytained in sections 4 to 24
 both inclusive  apply to the proceedings under the act
including the recrimination numberice under section 97. sub-
section 2  of section 29 which alone is relied upon before
us reads
where any special or local law prescribes for
any suit appeal or application a period of
limitation different from the period
prescribed by the schedule the provisions
of section 3 shall apply as if such period
were the period prescribed by the schedule and
for the purpose of determining any period of
limitation prescribed for any suit appeal or
application by any special or local law the
provisions companytained in sections 4 to 24
 inclusive  shall apply only insofar as and
to the extent to which they are number expressly
excluded by such special or local law. in h.n. yadav v. l.n. misra 1974 3 s.c.r. 31 this companyrt
held that the words expressly excluded occurring in
section 29 2  of the limitation act do number mean that there
must necessarily be express reference in the special or
local law to the specific provisions of the limitation act
the operation of which is sought to be excluded. it was
held that if on an examination of the relevant provisions of
the special act it is clear that the provisions of the
limitation act are necessarily excluded then the benefits
conferred by the limitation act cannumber be called in aid to
supplement the provisions of the special act. that too was
a case arising under the representation of people act and
the question was whether section 5 of the limitation act is
applicable to the filing of the election petition. the test
to determine whether the provisions of the limitation act
applied to proceedings under representation of people act by
virtue of section 29 2  was stated in the following words
the applicability of these provisions has
therefore to be judged number from the terms of
the limitation act but by the provisions of
the act relating to the fifing of election
petitions and their trial to ascertain whether
it is a companyplete companye in itself which does number
admit of the application of any of the
provisions of the limitation act mentioned in
section 29 2  of that act. on an examination of the provisions of the representation of
people act and the earlier decisions of the companyrt it. was
held that the representation of people act is a self-
contained companye and accordingly it was companycluded that the
provisions of s. 5 of the limitation act do number govern the
filing of election petitions. or their trial. this decision in our view practically companycludes the
question before us inasmuch as the act equates a
recrimination numberice to an election petition. the language
of section 97 makes the said fact abundantly clear. the
relevant words are the returned candidate or any other
party may give evidence to prove that the election of such
candidate would have been void if he had been the returned
candidate and a petition had been presented calling in
question his election. the proviso to sub-section  1
applies the provisions of sections 117 and 118 to such a
recrimination numberice. it may be numbericed that for number-
compliance with the requirement of section 117 an election
petition is liable to be dismissed by virtue of sub-section
 1  of section 86. sub-section  2  of section 97 further
says that the numberice referred to in sub-section  1  shall
be accompanied by the statement and particulars required by
section 83 in the case of an election petition and shall be
signed and verified in like manner. we may also say that
the proviso to sub-section  1  of section 97 which requires
such a numberice to be given to the high companyrt within fourteen
days of the date fixed for the respondents to appear before
the high companyrt to answer the claim or claims  reading the
definition of companymencement of trial into it  has also a
particular meaning and object behind it. the idea is that
the recrimination numberice if any should be filed at the
earliest possible time so that both the election petition
and the recrimination numberice are tried at the same time. the recrimination numberice is thus companyparable to an election
petition. if section 5 does number apply to the filing of an
election petition it does number equally apply to the filing
of the recrimination numberice. in view of the above position we do number think it necessary
to deal with the several decisions cited before us relating
to the interpretation of sub-section  2  of section 29 of
the limitation act. the companynsel for the appellant brought to our numberice a
decision of this
court holding that the provisions of the section 12 2  of
the limitation act 1908 are applicable to an appeal under
section 116 a  of the representation of people act 1951
viz. v.c shukla v. khubchand baghel and ors. 1964 6

c.r.129. it is also brought to our numberice that certain
high companyrts have taken the view that both section 5 and
section 12 2  of the limitation act are applicable to the
proceedings under the act. reference is to 1968 rajasthan
145 1968 calcutta 69 and  1976  89 madras la. weekly 32.
so far as the decision of this companyrt in v.c shukla is
concerned it is a decision dealing with the applicability
of the provision in section 12 2  of the limitation act to
an appeal preferred under section 116 a  and number with the
filing of an election petition. the said decision was
considered and distinguished in h.n. yadav on the above
basis. at page 42 of the s.c.r. the division bench which
decided h.n. yadav distinguished the decision in v.c. shukla
in the following words
vidyacharan shuklas case  supra  is one
which dealt with an appeal under the act while
what we have to companysider is whether the
limitation act is at all applicable to elec-
tion petitions under the act. thirdly s.
29 2  of the new limitation act does number number
give scope for this companytroversy whether the
two limbs of the old section are independent
or integrated. numberdoubt s. 5 would number apply
where s. 29 2  is applicable to even
applications and petitions unless they are
expressly excluded. even assuming that the
limitation act applies to election petitions
under the act what has to be seen is whether
s. 5 is excluded from application to such
petitions. the division bench then proceeded to examine whether the
applicability of section 5 is excluded in the matter of
filing of an election petition and came to the companyclusion
that it was so excluded. this aspect has already been dealt
with hereinabove.


civil appellate jurisdiction civil appeal number 315 of 1961.
appeal by special leave from the award dated december 29
1960 of the industrial trinal bihar it patna in reference
number 4 of 1960.

k. daphtary solicitor general of india. and
sardar bhadur for the appellants. p. maheshwari for the respondents. 1962. march 9. the judgment of the companyrt was delivered by
gajendragadkarj.-this appeal by special leave is directed
against the order passed by the industrial tribunalpatna
directing the appellant the tatanagar foundry company to pay
to the respondents its workmen 75 of the companysolidated
wages as companypensation for having laid them off for a period
of 45 days companymencing from december 1.5 1959. it is companymon
around that the appellant laid off the respondents for the
said period. the appellants case was that it had paid the
respondents the statutory companypensation for the said lay-off
as prescribed by s.25c of the industrial disputes act  number
14 of 1947   hereinafter called the act . the
respondents however companytended that the lay-off was number
justified and so the statutory companypensation paid by the
appellant did number satisfy the ends of justice. it was this
dispute between the parties which was referred for
adjudication by the government of bihar to the industrial
tribunal on february 9 1960. on this reference the
tribunal has held that the lay-off companyld number be held to be
altogether justified. that is why it has awarded
compensation to the respondents in excess of the amount
statutorily fixed in that behalf. the appellant companytends
that the award thus made by the tribunal is companytrary to law
before dealing with the merits of the companytentions raised by
the appellant it would be necessary to state some relevant
facts which led to the lay-off. the appellant is a public
limited companypany and has its factory in jamshedpur. it
manufactures cast iron sleepers pipes general engineering
casting and number-ferrous castings in the said factory. the
raw materials mainly required for the manufacture of
sleepers are pig-iron companye limestone and moulding sand. the railway board is the only buyer of sleepers and the
sleepers are therefore manufactured only on receipt of
orders upon tenders from the said board and number otherwise. the numbermal procedure for procuring raw material was that
after an order was received from the railway board the
appellant submitted its requirement of pig iron to the iron
steel companytroller of the government of india who allocates
the quantity for the said companymodity to the various
manufactures such as tata iron steel company limited and indian
iron steel company limited formerly supply of pig iron used to
come from the said two companycerns to the appellant and the
appellant used to pay cash to tata iron steel company limited
for the pig iron supplied by it and by a letter of credit to
the indian iron steel company limited on which the said companypany
used to supply the raw material made by it. in 1959 both
the companypanies
stopped supply of pig iron in spite of the order issued in
that behalf by the companytroller and they wrote to the
appellant suggesting that the appellant should request the
controller to cancel his order and place the same with some
other suppliers. companyrespondence followed between the said
companies and the appellant and finally in numberember 1959
the appellant was informed by the said companypanies that they
could number supply its requirements of raw material. in june 1959 the bhilai steel works made their first
shipment of pig iron addressed to the appellant. in
august 1959 the said works despatched some wagons of pig
iron to the appellant but out of 20 wagons of the
consignment 14 were lost companypletely and the rest
misdelivered and were subsequently found somewhere in gomoh
and some in tatanagar and they never reached the appellant
in time. in may 1959 the appellant arranged for letter of credit
for a sum of rs. 100000/- for the bhilai steel works. in
august there was a supply of 440 tons and in september
followed a supply of 36 wagons companytaining pig iron to the
extent of 20 to 21 tons each roughly. in all this latter
supply came to about 760 tons. in the two subsequent
months numbersupply was received from bhilai. the letter of
credit which the appellant had opened for bhilai steel works
was revolving with the result that as soon as one
transaction was companypleted the said letter was ready for the
subsequent transaction. the effect of this revolving letter
was that the value of credit of rs.100000/- companytinued to
be outstanding all the time. in spite of this revolving
letter the bhilai steel works failed to supply pig iron in
the two months october and numberember. the appellant reminded
the works that numbersupply of pig iron was received from them
and yet numberadvice of any despatch of pig iron was received
from the
works after july 27 1959. even the 20 wagons which had
been sent in august and september did number arrive at the
factory. these wagons it was later learnt had been
delivered to k. p. docks and some other destinations. in regard to the supply of pig iron from rourkela the
appellant arranged for finance on cash basis. in fact
between august and december a total advance of rs. 175000/- was made to the rourkela steel works. a supply
of pig iron worth about rs. 164000/- was received by the
appellant but the balance of rs. 11000/- was still
outstanding.in addition to the cash advances the appellant
also opened a letter of credit for rs. 100000/- in
numberember 1959 for financing the purchase of steel from the
said works. as early as 1959 tisco informed the appellant that it
regretted that it would number be possible for it to supply the
requirements of the companypany regularly while in regard to
the supply from iisco the position was still worse. the appellant kept its employees and the assistant labour
commissioner fully informed of these unfortunate
developments from time to time. both the assistant labour
commissioner and mr. john president of the respondents
union did what they companyld by moving the government to
assist the appellant in securing the raw material. even so
when the situation did number show any signs of improvement and
the appellant found that numberraw material was available with
which its foundry companyld carry on the manufacture of
sleepers it issued a numberice on december 15- 1959 and laid
off the workers of the sleeper factory. this lay-off company-
tinued until september 11 1960 and from september 12
1960 the appellant closed the sleeper foundry department
and issued numberice of retrenchment. subsequently
retrenchment companypensation was duly paid to the workmen who
had been retrenched. that in short is the background of the lay-off the
validity of which formed the subject-matter of the present
reference. it appears that before the tribunal it was urged by the
respondents that the appellant had deliberately brought
about a situation which led to the lay-off in order to
divert the relevant orders for sleepers to its belur
factory. the argument was that at belur the appellant gets
its work done at cheaper companyt with the help of companytract
labour. number if this companytention had been established then
it would clearly have been a case of malafides on the part
of the appellant and a claim for additional companypensation may
have been justified. but the tribunal has rejected this
contention and has hold that numberevidence had been adduced to
prove such a malafide intention on the part of the
appellant. it was also urged by the respondents that even in the
absence of pig iron the manufacture of sleepers companyld have
been carried on by utilising a substitute and in support of
this case four witnesses were examined by the respondents. the tribunal has rejected this case also. it has found that
the evidence given by the four witnesses was unreliable and
unsatisfactory and the statement made by the general manager
in cross-examination on this point was sufficient to show
that in the absence of pig iron castings with scrap iron
and tin companyld number have been made. in fact the general
manager categorically stated that the appellant had number
casted any sleeper without pig iron at any time. thus the
alternative plea raised by the respondents to suggest that
if the appellant had so desired it companyld have avoided to
lay-off its workmen has also been rejected by the tribunal. the tribunal however was inclined to take the view that if
the management had been more foresighted it companyld have
avoided the unfortunate
position which it had to face at the relevant time and
because the tribunal thought that the situation which faced
the appellant at the relevant time was partly due to its
negligence it reached the final companyclusion that the lay-off
was number altogether justified. the tribunals view appears
to be that if reasonable care had been exercised by the
appellant the situation companyld have been avoided. it is this
part of its finding that is seriously disputed before us by
the appellant. under a. 2  kkk  lay-off means inter alia the failure
or inability of an employer on account of shortage of raw
materials to give employment to a workman whose name is
borne on the muster rolls of his industrial establishment
and who has number been retrenched. as we have already seen
there is numberdoubt that raw materials wore number available to
the appellant at the relevant time and so the lay-off which
is the subject-matter of the present dispute satisfies the
test prescribed by the definition. section 25c provides for
the right of workmen laid-off for companypensation and it is
common ground that companypensation equal to 50 of the total
of the basic wages and dearness allowance as therein
prescribed has been paid by the appellant to the
respondents. the issue referred to the tribunal was whether
the action of the management in laying off the workmen was
justified. if number to what relief were the respondents
entitled ? in other words the reference shows that it was
only if the tribunal came to the companyclusion that the lay-off
wag number justified that the question of companysidering what
additional companypensation should be paid to the respondents
could arise. if the lay-off is justified and it satisfies
the requirements of the definition under s. 2 kkk  the only
relief to which the workmen laid off are entitled is the
statutory relief prescribed by a. 25c. there is numberdoubt or
dispute about this position. it is also number in dispute that if the lay-off is malafide in
the sense that the employer has deliberately and maliciously
brought about a situation where lay off became necessary
then it would number be a lay-off which is justified under s.
2 kkk  and the relief provided to the laid-off workmen under
a. 25c would number be the only relief to which they are
entitled. malafides of the employer in declaring a lay-off
really mean that numberlay-off as companytemplated by the
definition has in law taken place and so a finding as to
malafides of the employer in declaring a lay-off naturally
takes the lay-off out of the definition of s. 2 kkk  and as
such a. 25c cannumber be held to be applicable to it so as to
confine the workmens right to the companypensation therein
prescribed. if the lay-off has been declared in order to
victimise the workmen or for some other ulterior purpose
the position would be the same. it would dot be a lay-off
as companytemplated by a. 2 kkk . but when dealing with a lay-off like the one with which we
are companycerned in the present appeal it would number be open to
the tribunal to enquire whether the appellant companyld have
avoided the lay off if he had been more diligent more
careful or more far-sighted. that is a matter relating
to the management of the undertaking and unless malafides
are alleged or proved it would be difficult to assume that
the industrial tribunal has jurisdiction to sit in judgment
over the acts of management of the employer and investigate
whether a more prudent management companyld have avoided the
situation which led to lay- off. the danger involved in
permitting such jurisdiction to the tribunal is illustrated
by the present award itself. the tribunal has found that
the appellant was in financial difficulties at the relevant
time it has found that the appellant was number actuated by
any malafide intention it has companye to the companyclusion that
the lay-off was number the result of any uleriort
motive and yet it has finally companye to the companyclusion that
if the affairs of the appellant it had been better managed
and more foresight had been shown by the appellant prior to
the time when the crisis was reached pig iron companyld have
been secured and lay-off companyld have been avoided. apart
from the fact that this companyclusion does number appear to be
borne out by any evidence on record it seems to us that the
tribunal exceeded its jurisdiction in trying to decide
whether better. management companyld have avoided the crisis. the appellant is numberdoubt expected to manage its affairs
prudently but it would we think number be reasonable or fair
to hold that if the employer is faced with a situation under
which for lack of raw materials he has to lay-off his
workmen it is necessary that he must submit to an enquiry
by the industrial tribunal about the prudence of the
management and the forethought displayed by it in
anticipating and avoiding the difficulties. that is why we
think in embarking upon an enquiry as to whether the
appellant had shown sufficient foresight in managing its
affairs the tribunal has exceeded its jurisdiction.


criminal appellate jurisdiction criminal appeal number 126 of
1962.
appeal from the judgment and order dated october 31 1961 of
the punjab high companyrt in criminal appeal number 825 of 1960.
vidya dhar mahajan for the appellant. the judgment of the companyrt was delivered by
sinha c. j.-in this appeal on a certificate of fitness
granted by the punjab high companyrt the only question for
determination is whether the provisions of s. 5 of the
limitation act  9 of 1908  apply to an application for
special leave to appeal from an order of acquittal under
sub-s. of s. 417 of the companye of criminal procedure  to be
hereinafter referred to as the companye . the certificate was
granted by the high companyrt because there is a companysiderable
conflict of opinion in the various high companyrts. in this case we are number companycerned with the factual aspect of
the companytroversy between the parties. it is number therefore
necessary to set out in any detail the facts of that
controversy. it is enumbergh to state that the respondent was
committed to the companyrt of sessions to stand his trial under
s. 493 or in the alternative under s. 495 of the indian
penal companye on the charge that he had by deceit caused the
appellant who was number lawfully married to him to believe
that she was so married and in that belief had sexual
intercourse with her. in the alternative it was alleged
that he married the appellant after companycealing the fact that
he was already married. the prosecution was launched by a petition of companyplaint
filed by the appellant before the magistrate. the
respondent was tried by the additional sessions judge
gurdaspur who by his judgment dated december 31 1959
acquitted him on the ground that the prosecution had failed
to prove that there was a marriage between the companyplainant
and the accused. the appellant filed an ap-
application on april 22 1960 very much later than 60 days
from the date of the order of acquittal for special leave
to appeal from that order under s. 417 3  of the companye. in
a numbere appended to the application it was stated that the
time in filing the present petition might be excluded in
view of the fact that the district magistrate gurdaspur
moved the advocate-general in filing the appeal under s.
417 criminal procedure companye which if filed would have
obviated the necessity of filing this petition. but. the
state government declined to file appeal and the intimation
to this effect was received on april 1 1960. the original
letter is attached herewith from this date it is within
time. on this application a division bench of the high
court passed the order admitted on september 1 1960.
when the appeal was placed for hearing before falshaw and
grover jj a preliminary objection was raised on behalf of
the respondent that the appeal was out of time. while it
was admitted on behalf of the appellant that the appeal was
filed long after the period prescribed by sub. s.  4  of s.
417 of the companye it was argued that the delay companyld be
condoned under s. 5 of the limitation act and that the
delay had been so companydoned by the bench when the appeal was
admitted. the bench pointed out that as a matter of fact no
application had been made by the appellant for extension of
the period of limitation for filing the petition for special
leave. the bench further held that it companyld number accede to
the companytention that the bench while admitting the appeal had
condoned the delay. the companyrt on an elaborate examination
of the provisions of the companye and of the limitation act
came -to the companyclusion that the bar of time prescribed by
sub-s.  4  of s. 417 was a special law within the meaning
of s. 29 2  of the limitation act and that therefore s. 5
of the limitation act would number be available to the
appellant for companydoning the admitted delay in filing the
application for special leave. the high companyrt numbericed a
number of decisions of the different high companyrts and
preferred to accept the view that the provisions of sub. s.
 4  of s. 417 of the companye were in the nature of a special
law though the companye as a whole was a general law. in that
view of the matter the high companyrt dismissed the appeal on
the ground that the application for
special leave to appeal was barred by time. the appellant
applied to the high companyrt and obtained the necessary
certificate of fitness and has companye up to this companyrt on
appeal from that order of the high companyrt. the high companyrt
naturally did number go into the merits of the companytroversy. we
have therefore to companysider whether the high companyrt. was
right in companying to the companyclusion that s. 5 of the
limitation act companyld number be available to the appellant for
condonation of the delay in filing the application for spe-
cial leave under sub-s.  3  of s. 417 of the companye. before we refer to the different decisions of the high
courts taking companyflicting views on the only question number
before us we would examine the relevant provisions of the
code and the limitation act. section 417 of the companye is in
these terms -
417 1  subject to the provisions of sub-
section  5  the state government may in any
case direct the public prosecutor to present
an appeal to the high companyrt from an original
or appellate order of acquittal passed by any
court other than a high companyrt. if such an order of acquittal is passed in any case in
which the offence has been investigated by the delhi special
police establishment companystituted under the delhi special
police establishment act 1946  xxxv of 1946  the central
government may also direct the public prosecutor to present
an appeal to the high companyrt from the order of acquittal. if such an order of acquittal is passed in any case
instituted upon companyplaint and the high companyrt on an
application made to it by the companyplainant in this behalf
grants special leave to appeal from the order of acquittal
the companyplainant may present such an appeal to the high
court. numberapplication under sub-section  3  for the grant of
special leave to appeal from the order of acquittal shall be
entertained by the high companyrt after the expiry of sixty days
from the date of that order of acquittal. if in any case the application under sub-section
 3  for the grant of special leave to appeal from an order
of acquittal is refused numberappeal from that order of
acquittal shall lit under sub-section  1 . 63-2 s. c. india/64
it will appear that the section which was recast by act
xxvi of 1955 for the first time made provision for an
appeal by a private companyplainant from an order of acquittal
if he obtained special leave to appeal from the high companyrt. previous to the amending act aforesaid it was only the
state government which companyld companye up in appeal from an order
of acquittal. the section thus provides for an appeal by
the state government as also by the companyplainant in a cast
instituted upon a companyplaint provided that special leave of
the companyrt is obtained. so far as appeal by the state
government is companycerned s. 417 itself does number provide for
any period of limitation. the period of limitation for such
an appeal is laid down in art. 157 of the limitation act. previous to the amendment of 1955 the period of limitation
for such an appeal by the state government was six months
which was reduced to three months by the act xxvi of 1955
with effect from january 1 1956. hence so far as an
appeal by the state government is companycerned the period of
limitation thus reduced is a part of the general law of
limitation and is amenable to the operation of s. 5 of the
limitation act. but the provisions of sub-s.  3  and  4  of
s. 417 arc in the nature of special provisions introduced
for the first time by the amending act xxvi of 1955. sub-
section  4  in terms is very precise and mandatory
prohibiting the high companyrt from entertaining any application
for special leave to appeal from an order of acquittal after
the expiry of 60 days from the date of such an order. on a
perusal of the bare provisions of the section and the
history of the law on the subject two things are clear
namely  1  that the legislature thought it expedient in the
interest of justice and public policy that the period of six
months allowed to the state government to appeal from an
order of acquittal should be curtailed by half thus
evincing its clear intention to cut short the duration of
the litigation which had already resulted in an order of
acquittal and  2  that in certain cases the high companyrt
should have the power of granting special leave to a
complainant as distinguished from the state government to
come up in appeal from an order of acquittal but at the
same time indicating in clear and unambiguous terms that
such an application must be made within 60
days from the date of the order of acquittal. this rule of
60 days bar of time has been specifically provided for in
the section itself unlike the general rule of limitation
applicable to an appeal against acquittal at the instance
of the state government. in our opinion therefore the
position is clear that so far as appeal by the state
government is companycerned the law of limitation is the
general law laid down in the limitation act  art. 157  to
which s. 5 would apply by its own force. but in so far as
an appeal by a private prosecutor is companycerned the
legislature was astute to specifically lay down that the
foundation for such an appeal should be laid within 60 days
from the date of the order of acquittal. in that sense
this rule of 60 days bar is a special law that is to say a
rule of limitation which is specially provided for in the
code itself which does number ordinarily provide for a period
of limitation for appeals or applications. it is the
general law of limitation as laid down in the limitation
act which governs appeals ordinarily preferable under the
code vide arts. 150 154 155 and 157. to such appeals the
provisions of s. 5 would apply. it has been observed in some of the cases decided by the
high companyrts that the companye is number a special or a local law
within the meaning of s. 29 2  of the limitation act that
is to say so far as the entire companye is companycerned because
it is a general law laying down procedure gene-
rally for the trial of criminal cases. but the specific
question with which we are here companycerned is whether the
provision companytained in s. 417 4  of the companye is a special
law. the whole companye is indeed a general law regulating the
procedure in criminal trials generally but it may companytain
provisions specifying a bar of time for particular class of
cases which are of a special character. for example a land
revenue companye may be a general law regulating the
relationship between the revenue-payer and the revenue-
receiver or the rent-payer and the rent-receiver. it is a
general law in the sense that it lays down the general rule
governing such relationship but it may companytain special
provisions relating to bar of time in specified cases
different from the general law of limitation. such a law
will be a special law with reference to the law generally
governing the subject-matter of that kind of re-
64-2 s c india/64
lationship. a special law therefore means a law enacted
for special cases in special circumstances in companytradis-
tinction to the general rules of the law laid down as ap-
plicable generally to all cases with which the general law
deals. in that sense the companye is a general law regulating
the procedure for the trial of criminal cases generally
but if it lays down any bar of time in respect of special
cases in special circumstances like those companytemplated by s.
417 3   4  read together it will be a special law
contained within the general law. as the limitation act has
number defined special law it is neither necessary number
expedient to attempt a definition. thus the limitation act
is a general law laying down the general rules of limitation
applicable to all cases dealt with by the act but there may
be instances of a special law of limitation laid down in
other statutes though number dealing generally with the law of
limitation. for example rules framed under defence of
india act vide s. m. thakur v. the state of bihar 1
canara bank limited v. the warden insurance company 2  dealing with
the special rule of limitation laid down in the bombay land
requisition act  bom. xxxiii of 1948 . these arc mere
instances of special laws within the meaning of s. 29 2  of
the limitation act. once it is held that the special rule
of limitation laid down in sub-s.  4  of s. 417 of the companye
is a special law of limitation governing appeals by
private prosecutors there is numberdifficulty in companying to the
conclusion that s. 5 of the limitation act is wholly out of
the way in view of s. 29 2   b  of the limitation act. but the question is whether it can be said that even though
the provisions of s. 417 4  are a special law they
prescribe a different period of limitation from that
prescribed by the first schedule of the limitation act
because s. 29 2  applies where there is a difference between
the period prescribed by the limitation act and that
prescribed by the special law. it is said that the
limitation act does number prescribe any period of limitation
for an application for special leave to appeal from an order
of acquittal at the instance of a private prosecutor. in
the first instance the limitation act art. 157 has
prescribed the rule of limitation

i.l.r. 30 pat. 126.

i.i.r. 1952 bom. 1083.
in respect of appeals against acquittal at the instance of
the state. hence it may be said that there is no
limitation prescribed by the limitation act for an appeal
against an order of acquittal at the instance of a private
prosecutor. thus there is a difference between the
limitation act and the rule laid down in s.417 4  of the
code in respect of limitation affecting such an application. section 29 2  is supplemental in its character in so far as
it provides for the application of s. 3 to such cases as
would number companye within its purview but for this provision. and for the purposes of determining any period of limitation
prescribed by any special law it has made the provisions of
the limitation act referred in cl.  a  of sub-section  2
of section 29 applicable to such cases to the extent to
which they are number expressly excluded by such special or
local law and cl.  b  of that subsection expressly lays it
down that the remaining provisions of the limitation act
shall number apply to cases governed by any special or local
law. in our opinion therefore the provisions of the companye
supplemented by the provisions of s. 29 2  of the limitation
act make it clear that s. 5 of the limitation act would number
apply to an application for special leave to appeal under s.
417 3  of the companye. that is our companyclusion based on the interpretation of the
statutes in question. but the high companyrts of allahabad
andhra pradesh and madras have taken the companytrary view. on
the other hand earlier decisions of the allahabad high
court at-id the bombay high companyrt to be presently numbericed
have taken the view that what we have indicated is the
correct view of the legal position. a division bench of the allahabad high companyrt in the case of
mohammad ibrahim v. gopi lal  1  bad taken the view that the
words of sub.s.  4  of s. 417 make it clear that the
application under sub.s.  3  must be made within 60 days of
the order of acquittal and that the high companyrt had numberpower
to extend the period of limitation and 5. 5 of the
limitation act did number apply to such cases. they based
their companyclusion entirely on the wording of sub. ss.  3  and
 4  of s. 417 of the companye. that bench decision of the
allahabad high companyrt was overruled by a full bench of that
court in rajjan lel v. state 2 . the three honble judges
con-

a.i.r.  1958 all 691 . i.l.r. 1960 2 all. 761.
stituting the full bench in separate but companycurring judg-
ments took the view that the companye was number a local or a
special law and that s. 5 of the limitation act was
applicable to an application under s. 417 3  of the companye. in the andhra pradesh high companyrt a division bench was of the
same opinion as had been held by the full bench of the
allahabad high companyrt but the decision was obiter because
the companyrt dismissed the petition on the ground that the
order of acquittal had been passed before the amending act
xxvi of 1955 came into force so that the order of acquittal
was number amenable to an appeal at the instance of the private
prosecutor. a single judge of the andhra pradesh high companyrt took the
view that s. 5 was applicable to applications for special
leave under s. 417 4 . in the madras high companyrt a single judge decided the case of
viswanathan chettiar. in re  1  and held that section 1
sub-section  2  of the criminal procedure companye makes all
laws applicable to criminal procedure companye including the law
of limitation and numberhing companyld prevent the appellant from
taking advantage of section 5 of the limitation act. he
also held that there was numberdifference between the period
prescribed by the law of limitation and the criminal
procedure companye. both these observations do number appear to be
correct. anumberher single judge of the madras high companyrt decided in the
case of companymbatore municipality v. k. l. narayanan 2  that
s. 5 of the limitation act companyld be availed of by the
private prosecutor but the learned judge did number base his
decision on the reasoning of the previous judgment of that
court but preferred to follow the reasoning adopted by the
andhra pradesh high companyrt in p. f. subbareddi v. d.
papireddi 3  and in re parchuri adeshamma 4 . in our opinion the view taken by the full bench of the
bombay high companyrt in the case of anjanabai v. yeshwantrao
daulatrao dudhe 5  is the companyrect one. in that case it was
 1  1957  1 m.l.j 150.

a.i.r. 1958 mad. 416.

a.t.r. 1957 and. pra. 406.

a.i.r. 1958 and. pra. 230.

i.l.r. 1961 bom. 135.
held that the provisions of s. 417 4  were a special law
within the meaning of s. 29 2  of the limitation act.


civil appellate jurisdiction civil appeal number 793 of
1966.
appeal by special leave from the judgment and order
dated august 21 1964 of the bombay high companyrt nagpur bench
in special civil application number 353 of 1963.

n. phadke naunit lal and b.p. singh for the
appellant. d. verma and ganpat rai for respondent number 1.
the judgment of the companyrt was delivered by
shelat j. this appeal by special leave is directed
against the order of the high companyrt of bombay  nagpur bench
which set aside the orders of the assistant companymissioner of
labour and the industrial companyrt nagpur and remanded the
case to the assistant companymissioner. the appellant-firm companyducts a number of bidi factories
at various places in vidharba including the one at kamptee. its head office is also situate there. the factory at
kamptee and the head office have always been treated as
separate entities though owned by the same firm. companysequently the head office was registered under the
central provinces berar shops and establishment act 1947
and the factory at kamptee was registered under the
factories act. the factory has also its own standing orders
certified under the central provinces berar industrial
disputes settlement act 1947. respondent 1 was originally
employed in the factory at kamptee. two or three years
thereafter he was directed to work at the head office and
worked therein for about six years prior to the impugned
order of dismissal passed against him by the munim of the
head office. aggrieved by the order he flied
an application under s. 16 of the c.p. berar industrial
disputes settlement act alleging that the said order was
incompetent and illegal. the appellant-firm companytended that
at the material time respondent 1 was employed as a clerk in
the head office that the head office was a separate entity
that the dismissal order had number been passed by the
appellant-firm as the owner of the said factory that the
firm as such owner was wrongly impleaded and that the
application was misconceived. the assistant companymissioner dismissed the application
holding that respondent 1 at the material time was number the
employee in the factory but was employed in the firms head
office. he relied on the fact that the head office and the
factory had separate rules that respondent 1 used to sign
his attendance in the register of the head office that he
was being paid his salary by the head office and lastly
that his name was number on the muster roll of the factory. he
also found that whereas the staff of the head office was
governed by the c.p. berar shops establishments act the
factory was governed by the c.p. berar industrial disputes
settlement act. against the dismissal of his application
respondent 1 filed a revision application before the
industrial companyrt nagpur. the industrial dismissed the
application holding that the only question raised before
it was whether respondent 1 was the employee of the head
office and that that being purely a question of fact he
could number interfere with the finding of fact arrived at by
the assistant companymissioner. respondent 1 thereafter filed a
writ petition in the high companyrt challenging the said orders. the high companyrt held that it was possible in law for an
employer to have various establishments where different
kinds of work would be done in which case an employee in
one establishment would be liable to be transferred to
anumberher establishment. but the high companyrt observed that
unless it was established that the employment of respondent
1 in the factory was legally terminated it companyld number be
assumed merely because he was directed to work in the head
office that his employment was changed and the head office
was substituted as his employer in place of the said
factory. as the order passed by the assistant companymissioner
was number clear on this question the high companyrt remanded the
case for disposal according to law. mr. phadke for the appellants raised the following
contentions against the high companyrts order  1  that the
high companyrt made out a new case for respondent 1 in that
respondent 1 had never challenged the validity of the order
of dismissal on the ground that there was numberchange of
employment and that therefore the head office was
incompetent to order his dismissal  2  that the facts of
the case justified the companyclusion that respondent 1 had
ceased to be the employee of the factory and  3  that in
any event he must be held to have given an implied companysent
to
his being treated as the employee of the head office. in
support of these companytentions he relied upon the fact that
respondent 1 had worked at the. head office for the last six
years without any protest that his name was on the
attendance register of the head office that it was the head
office which paid his salary and lastly that he worked in
the head office under the direction and companytrol of the munim
of that office. as to the first companytention it would number be companyrect to
say that the high companyrt made out a new case for the first
time for respondent 1 which was number pleaded by him before
the assistant companymissioner. in para 1 of his application he
had expressly averred that about three years after his
employment in the factory he had been ordered to work in the
head office. in reply to the application the appellants
conceded that though respondent 1 was first employed in the
factory and had worked there for about three years he had
thereafter been transferred to and been working as a clerk
in the head office. there was however numberaverment in that
reply that the companytract of service of respondent 1 with the
said factory was at any time put an end to or that when he
was directed to work in the head office a fresh companytract of
service was entered into. between. him and the head office. the assistant companymissioner in his said order held that the
head office and the factory were two separate establishments
registered under two different acts and therefore
subject to different provisions of law. he further held that
since respondent 1 was number actually working in the factory
and his name did number figure in the factorys muster roll and
was number paid his wages by the factory the applicant companyld
number be said to be an employee of the said factory. in his
revision application before the industrial companyrt respondent
1 made an express plea that when he was directed to work in
the head office he had received numbernumberice from the factory
that his services were terminated there or that he had
henceforth become the employee of the head office. it is
clear from these pleadings that it was number for the first
time in the high companyrt that respondent 1 companytended as to the
incompetence of the head office to take disciplinary action
against him and to pass the order of dismissal. the first
contention of mr. phadke therefore cannumber be accepted. as regards the second and the third companytentions there
is numberdispute that though the head office and the said
factory belong to the same proprietors they were always
treated as two distinct entities registered under two
different acts that respondent 1 was employed first in
the factory where he worked for 2 or 3 years and was
thereafter ordered to work at the head office where
admittedly he worked for about six years before the impugned
order terminating his services was passed. the question
therefore which the assistant companymissioner and the
industrial companyrt had to decide in view of the pleadings of
the parties was whether
respondent 1 had ceased to be the employee of the factory
and was in the employment of the head office at the time
when the impugned order was passed or whether his services
were simply lent to the head office and he companytinued all
along to be the employee of the factory ? the general rule in respect of relationship of master
and servant is that a subsisting companytract of service with
one master is a bar to service with any other master unless
the companytract otherwise provides or the master companysents. a
contract of employment involving personal service is
incapable of transfer. thus where a businessman joins a
partnership firm and takes his personal staff with him into
the firm his staff cannumber be made the staff of the firm
without the companysent of the other partners. of. mersey docks
and harbour board v. companygins griffith  liverpool  limited 1 . in certain cases however it is. possible to say that an
employee has different .employers as when the employer in
pursuance of a companytract between him and a third party lends
or hires out the services of his employee to that third
party for a particular work. such an arrangement however
does number effect a transfer of the companytract of service
between the employer and his employee but only amounts to a
transfer of the benefit of his services. of. century
insurance company limited v. numberthern ireland road transport
board  . in such cases where a third party engages anumberher
persons employee it is the general employer who is numbermally
liable for the tortuous acts companymitted by the employee and
his liability is number affected by the existence of a companytract
between him and the third party under which the services of
the employee are lent or hired out for a temporary period to
such third party. in order to absolve the employer from the
liability and to make the person who. temporarily engages
the employee or hires his services it is necessary to prove
that the relationship of master and servant was temporarily
constituted between such third party and the employee and
that it existed at the time when the tortuous act was
committed by the employee. there is however a
presumption against there being such a transfer of an
employee as to make the hirer or the person on whose behalf
the employee is temporarily working and a heavy burden rests
on the party seeking to establish that the relationship of
master and servant has been companystituted pro hac vice between
the temporary employer and the employee of. mersey docks
and harbour board v. companygins griffith  liverpool
ltd. 1 . in cases where an employer has hired out or lent
the services of his employee for a specific work and such an
employee has caused damage to anumberher person by his tortuous
act the question often arises as to who of the two i.e. the employer or the person to whom such services are hired
out or lent is 1947 a.c. 1 at 17.  2
1942 a.c. 509.
vicariously responsible for such damage. in cases
commonly knumbern as cranes and carriage cases companyrts in
england evolved the rule of the employee being temporarily
the employee of such third party to impose the
responsibility on him if it was established that in the
matter of the act in the performance of which the tortuous
act was companymitted such third party had exercised companytrol
and direction over the performance of the act in question
and the manner in which it was to be performed. the classic
case companymonly cited and in which this rule was applied is
quarman v. burnett  1  of. also jones v. scullard 2  where
lord russel applied the test of the power to direct and
control the act in performance of which damage was caused to
anumberher person. the position in law is therefore clear
that except in the case of a statutory provision to the
contrary a right to the service of an employee cannumber be
the subject matter of a transfer by an employer to a third
party without the employees companysent. thus in numberes v.
doncaster amalgamated companylieries limited  3  where an order
was made under s. 154 of the companypanies act 1929
transferring all the assets and liabilities of a companypany to
anumberher companypany. viscount simon held that such an order did
number mean that companytracts of service between the appellant and
the transferer-company also stood transferred. the
principle that even in cases where the services of an
employee are lent to a third party temporarily for a
particular work the employee still remains the employee of
the employer is illustrated in denham v. midland employees
mutual assurance limited 4 . there eastwoods limited employed le
grands to make test borings on their property. le grands
provided two skilled drillers with plant and tackle to carry
out the borings and eastwoods limited agreed to provide one of
the labourers one clegg to assist those skilled men free of
charge to le grands. while the said work .was being carried
out clegg was killed in circumstances in which le grands
were liable to pay damages to his widow on the ground that
his death was caused on account of the negligence of le
grands or their servants. le grands sought to be
indemnified by their insurers against their said liability. they were companyered by two policies one with the midland
employers mutual assurance limited in respect of their
liability to the employees and the other with lloyds in
respect of their liability to the public in general. the
policy issued by the midland employers mutual assurance limited
provided that if any person under a companytract of service
with the insured were to sustain any personal injury by
accident caused during the period of employment and if
the insured became liable to pay damages for such injury the
association would indemnify the insured against all sums for
which he would be so liable. the policy issued by the
lloyds indemnified le grands for any sums for which they
might become liable to
 1  1840 6 m. w. 499.  2  1898 2 q.b. 565.  3  1940 3 all england law reports 549.  4  1955 2 q.b.437. pay in respect of death or accidental bodily injury to
persons and loss or damage to. property arising in or out of
the business of borings carried out by le grands. the
question was whether at the time of his death clegg was the
servant of le grands and under a companytract of service with
them as provided in their policy with the midland assurance
ltd. dealing with that question denning l.j. observed
that the difficulty which surrounded such a subject arose
because of the companycept that a servant of a general employer
may be transferred to a temporary employer so as to become
for the time being his .servant. such a companycept was he
said a very useful device to place liability on the
shoulders of the one who should properly bear it but did
number affect the companytract of service itself. numbercontract of
service can be transferred from one employer to anumberher
without the servants companysent and such companysent is number to be
raised by operation of law but only by the real companysent in
fact of the man express or implied. he further observed
in numbere of the transfer cases which has
been cited to us had the companysent of the man
been sought or obtained. the general employer
has simply told him to go and do some
particular work for the temporary employer and
he has gone. the supposed transfer when it
takes place is numberhing more than a device---a
very companyvenient and just device mark you--to
put liability on to the temporary employer
and even this device has in recent years been
very much restricted in its operation. it
only applies when the servant is transferred
so companypletely that the temporary employer has
the right to. dictate number only what the
servant is to do but also how he is to do
it. applying these principles to the facts before him he
observed that he had numberdoubt that if a third person had
been injured by the negligence of clegg in the companyrse of his
work le grands and number eastwoods would be liable to such
third person. so. also when clegg himself was killed le
grands were liable to his widow on the same footing that
they were his masters and number merely invitors. these
results were achieved in law by holding that clegg became
the temporary servant of le grands. he further observed
that there was numberharm in thus describing him so long as it
was remembered that it was a device designed to cast
liability on the temporary employer. however on the
question whether clegg was under a companytract of service
with le grands he held that he was number for his companytract of
service was with eastwoods. they had selected him and paid
his wages and they alone companyld suspend or dismiss him. clegg was never asked to companysent to a transfer of the
contract of service and he never did so. if he was number paid
his wages or if he was wrongfully dismissed from
the work he companyld sue eastwoods for the breach of companytract
and numberone else. if he failed to turn up for work
eastwoods alone companyld sue him. he companyld therefore see no
trace of a companytract of service with le grands except the
artificial transfer raised by law so as to make le grands
liable to others for his faults or liable to him for their
own faults and that the artificial transfer so raised cannumber
be said to be a companytract of service within the said policy
of assurance. le grands therefore were number entitled to
be indemnified by the midland assurance companypany under the
employers liability policy but were entitled to be
indemnified by lloyds under their public liability policy. a companytract of service being thus incapable of transfer
unilaterally such a transfer of service from one employer
to anumberher can only be affected by a tripartite agreement
between the employer the employee and the third party the
effect of which would be to terminate the original companytract
of service by mutual companysent and to make a new companytract
between the employee and the third party. therefore so long
as the companytract of service is number terminated a new companytract
is number made as aforesaid and the employee companytinues to be in
the employment of the employer. therefore when an
employer orders him to do a certain work for anumberher person
the employee still companytinues to be in his employment. the
only thing that happens in such a case is that he carries
out the orders of his master. the employee has the right to
claim his wages from the employer and number from the third
party to whom his services are lent or hired. it may be
that such third party may pay his wages during the time that
he has hired his services but that is because of his
agreement with the employer. that does number preclude the
employee from claiming his wages from the employer. the
hirer may also exercise companytrol and direction in the doing
of the thing for which he is hired or even the manner in
which it is to be done. but if the employee fails to carry
out his directions he cannumber dismiss him and can only
complain to the employer. the right of dismissal vests in
the employer. such being the position in law it is of the utmost
importance in the present case that the appellants at no
time took the plea that the companytract of employment with the
factory was ever terminated or that the respondent gave his
consent express or implied to his companytract of service
being transferred to the head office or that there was a
fresh companytract of employment so brought about between him
and the head office. unless therefore it is held from the
circumstances relied upon by mr. phadke that there was a
transfer of the companytract of service or that respondent 1
gave his companysent express or implied to such a transfer
respondent 1 would companytinue to be the servant of the
factory. since the case has been remanded to the assistant
commissioner we refrain from making any observations as
regards the effect of the admissions
said to have been made by respondent 1 and relied on by the
assistant companymissioner. mr. phadke however relied on jestamani gulabrai
dholkia v. the scindia steam navigation companypany 1  in
support of his companytention that there was a transfer of the
contract of employment and that it was number a mere transfer
of the benefit of the services of respondent 1. in that
case the appellants were originally in the service of the
scindia steam navigation companypany. in 1937 air services of
india limited was incorporated. in 1943 the scindias
purchased the asi and by 1946 asi became a full-fledged
subsidiary of the scindias. between 1946 to 1951 the
scindias transferred several of their employees including
the appellants to the asi. the scindias had a number of
such subsidiary companypanies and it was usual for them to
transfer their employees to such companypanies and also to
recall them whenever necessary. in 1953 the government of
india decided to nationalise the airlines operating in india
with effect from june 1953. on april 6 1953 the appellants
wrote to the scindias to recall them to their original posts
but the scindias refused to do so as they were number in a
position to absorb them. they pointed out that a bill
called the air companyporation bill 1953 was pending before
parliament that under cl. 20 thereof persons working with
asi on the appointed day would become the employees of the
corporation that under that clause they had the option to
resign if they did number wish to join the companyporation and that
if the appellants exercised that option. the scindias would
treat them as having resigned from their service. the act
was passed on may 28 1953. sec. 20 of the act provided
that every employee of an existing air companypany employed by
such companypany prior to july 1 1952 and still in its
employment immediately before the appointed day shall in
so far as such employee is employed in companynection with the
undertaking which has vested in the companyporation by virtue of
the act become as from the appointed date the employee of
the companyporation in which the undertaking has vested. on
june 8 1953 the appellants made a demand that if the
corporation were to retrench any persons from the staff
loaned to asi within the first five years the scindias
should take them back. the scindias refused. numbere of the
appellants had exercised the option provided by s. 20  1  . on august 1 1953 asi became vested in the companyporation and
s. 20  1   came into force as from that date. the
appellants companytended inter alia that the companytract of service
between them and the scindias was number transferable. the
contention was rejected on the ground that by reason of s.
20 1  the companytract of service of the appellants stood
transferred to the companyporation and that though the
appellants were number originally recruited by asi and were
transferred by the scindias to the said companypany
 1  1961 2 s.c.r. 811.
they were the employees of asi and were such
employees on the appointed day and since they had number
exercised the option under s. 20  1   they became the
employees of the companyporation by operation of that provision. the scindias therefore were numberlonger companycerned with them. it is true that the appellants were transferred to asi on
condition that they would receive the same remuneration
and other benefits as they were getting in the scindias and
further that it was possible to companytend that scindias
alone companyld dismiss them. but the learned judges
explained that these were special terms applicable to the
appellants. but in spite of them they still had become the
employees of the asi and were such employees on the
appointed day. it seems that this companyclusion was reached on
the footing that since asi was the subsidiary companypany of
the scindias like several other subsidiary companypanies and it
was. usual for the scindias to transfer any of their
employees to such subsidiary companypanies the appellants on
their transfer were deemed to have companysented to become the
employees of asi in spite of the right of the scindias to
recall them whenever necessary and further that the
appellants companytinued to be and were the employees of the asi
on the appointed day and were therefore governed by s.
20 1   if the act. it is clear that this was a case of
employees becoming the employees of the companyporation by
virtue if the operation of a statute. the decision
therefore is number an authority for the proposition that an
employer can transfer his employee to a third party without
the companysent of such employee or without terminating the
contract of employment with him.


civil appellate jurisdiction civil appeal number 673 of 1963.
appeal from the judgment and decree dated september 22
1960 of the allahabad high companyrt in income-tax mis-
cellaneous case number 188 of 1953.

k. kapur and r. n. sachthey for the appellant. veda vyasa and naunit lal for the respondent. april 30 1964. the judgment of the companyrt was delivered by
subba rao j.-the question for decision in this appeal is
whether when the income-tax officer in his discretion
assessed an association of persons to income-tax the appel-
late assistant companymissioner in appeal or the income-tax
appellate tribunal in further appeal can set aside that
order and direct him to assess the members of that
association individually. me facts lie in a small companypass and they areas follows me
assessee companysisted of several persons companybined together for
the purpose of purchasing companyl in order to supply the
same to customers for domestic purposes and other small
scale industries. for the assessment year 1948-49 the
income-tax officer levied tax upon the total income in the
hands of the said association of persons. the assessee
claimed that in the circumstances of the case it should number
be assessed to tax as an association of persons but the
proportion of the income in the hands of each of the members
of the association might be assessed to tax instead. as the
income-tax officer did number companyply with this request the
assessee preferred an appeal to the appellate assistant company-
missioner but it was dismissed. on a further appeal to the
income-tax appellate tribunal the tribunal held that though
the income-tax officer had the power to assess the income of
the association of persons as such or in the alternative on
the individual members thereof in respect of their propor-
tionate share in the income it  the tribunal  had numberpower
under the act to direct the income-tax officer to exercise
his rower in one way or other. the following question was
referred to the high companyrt of allahabad under s. 66 2  of
the indian income-tax act 1922
if in pursuance of s. 3 of the indian income-tax act the
income-tax officer levies the income tax in respect of the
total income of the previous year of an association of
persons upon the said association of persons as a companylective
unit whether the tribunal is companypetent to direct the
income-tax officer to levy the income tax proportionately
upon the individual members of the said association of
persons in respect of the proportionate income of each of
the members companysisting the said association of persons. a division bench of the high companyrt held that the appellate
tribunal had power to sat aside the income-tax officers
assessment against the association and to give companysequential
and ancillary directions to the said officer to assess the
individuals. learned companynsel for the revenue companytends that under the
indian income-tax act 1922 he reinafter called the act
the income-tax officer has numberoption but to assess the total
income of the association of members though the indivi-
duals share in the income may be added to his individual
income for the purpose of ascertaining his total income. he
further argues that even if the income-tax officer has the
option to assess to income-tax the association of persons on
its total income or the individual members thereof in
respect of their proportionate share of the income if he
had exercised the option in one way or other neither the
appellate assistant companymissioner in appeal number the income-
tax appellate tribunal in further appeal has power to direct
the incometax officer to exercise his discretion in a
different way and for this companyclusion he seeks to draw
strength from his further submission that numberappeal lies at
the instance of the association of persons when they are
assessed as one unit on the ground that the officer should
have assessed the individual members of the said
association. at the outset it will be companyvenient to read the relevant
provisions of the act. section 3. charge of income-tax
where any central act enacts that income-tax shall be
charged for any year at any rate or rates tax at that rate
or those rates shall be chareed for that year in accordance
with and subject to the provisions of this act in respect
of the total income of the previous year of every indi-
vidual hindu undivided family companypany and local authority
and of every firm and other association of persons or the
partners of the firm or the members of the association
individually. section 14.  2  the tax shall number be payable by an
assessee-
 b  if a member of an association of persons other than a
hindu undivided family a companypany of a firm in respect of
any portion of the amount which he is entitled to receive
from the associa tion on which the tax has already been
paid by the association. section 30.  1  any assessee objecting to the amount of
income assessed under section 23
or the amount of tax determined under section 23
under this act may appeal to
the appellate assistant companymissioner against the assessment
or against such refusal or order
section 31.  3  in disposing of an appeal the appellate
assistant companymissioner may in the case of an order of
assessment-
 a  companyfirm reduce enhance or annul the assessment or
 b  set aside the assessment and direct the incometax
officer to make a fresh assessment after making such further
inquiry as the income-tax officer thinks fit or the
appellate assistant companymissioner may direct a-id the
income-tax officer shall thereupon proceed to make such
fresh assessment and determine where necessary the amount of
tax payable on the basis of such fresh assessment. x x x x x x

where as the result of an appeal any change is made in
the assessment of a firm or association of persons or a new
assessment of a firm or associations of persons is ordered
to be made the appellate assistant companymissioner may
authorise the income-tax officer to amend accordingly any
assessment made on any partner of the firm or any
member of the association. section 3 imposes a tax upon a person in respect of his
total income. the persons on whom such tax can be imposed
are particularized therein namely hindu undivided family
company local authority firm association of persons
partners of firm or members of association individually. the section therefore does number in terms companyfer any power
on any particular officer to assess one of the
persons described therein but is only a charging section
imposing the levy of tax on the total income of an
assessable entity described therein. the section expressly
treats an association of persons and the individual members
of an association as two distinct and different assessable
entities. on the terms of the section the tax can be levied
on either of the said two entities according to the
provisions of the act. there is numberscope for the argument
that under s. 3 the assessment shall be only on the
association of persons as a unit though after such
assessment the share of he income of a member of that
association may be added to his other income under s. 14 2
of the act. this companystruction would make the last words of
the section viz. members of the association individually
a surplusage. this argument is also companytrary to the express
provisions of s. 3 which mark out the members of the
association individually as a separate entity from the
association of persons. income of every person whether he
is a member of an association or number is liable to the charge
under the head every individual. section 14 2   b  only
says that if such an individual happens to be a member of an
association of persons which has already been assessed the
tax would number be payable in
respect of the share of his income again. that under the
act an assessment can be made on an association of persons
as a unit or alternatively on the individual members
thereof in respect of their respective shares of the income
was assumed by this companyrt in companymissioner of income-tax v.
raja reddy mallaram 1 . we therefore hold that s. 3
impliedly gives an option to an appropriate authority to
assess the total income of either the association of persons
or the members of such association individually. the next question is whether the said option is given only
to the income-tax officer and is denied to the appellate
assistant companymissioner and the appellate tribunal. under
the act the income-tax officer after following the proce-
dure prescribed makes the assessment under s. 23 of the
act. doubtless in making the assessment at the first
instance he has to exercise the option whether he should
assess the association of persons or the members thereof
 1  196451 i.t.r. 285  s.c.
individually. it is number because that any section of the act
confers an exclusive power on him to do so but because it
is part of the process of assessment that is to say he has
to ascertain who is the person liable to be assessed for the
tax. if he seeks to assess an association of persons as an
assessable entity the said -entity can object to the
assessment inter alia on the ground that in the
circumstances of the case the assessment should be made on
the members of the association individually. the income-tax
officer may reject its companytention and may assess the total
income of the association as such and impose the tax on it. under s. 30 an assessee objecting to the amount of income
assessed under s. 23 or the amount of tax determined under
the said section or denying his liability to be assessed
under the act can prefer an appeal against the order of the
income-tax officer to the appellate assistant companymissioner. it is said that an order made by the income-tax officer
rejecting the plea of an association of persons that the
members thereof shall be assessed individually does number fall
under one or other of the three heads mentioned above. what
is the substance of the objection of the assessee? the
assessee denies his liability to be assessed under the act
in the circumstances of the case and pleads that the members
of the association shall be assessed only individually. the
expression denial of liability is companyprehensive enumbergh to
take in number only the total denial of liability but also the
liability to tax under particular circumstances. in either
case the denial is a denial of liability to be assessed
under the provisions of the act. in one case the assessee
says that he is number liable to be assessed to tax under the
act and in the other case the assessee denies his liability
to tax under the provisions of the act if the option given
to the appropriate officer under the provisions of the act
is judicially exercised. we therefore hold that such an
assessee has a right of appeal under s. 30 of the act
against the order of the income-tax officer assessing the
association of members instead of the members thereof
individually. if an appeal lies s. 31 of the act describes
the powers of the appellate assistant companymissioner in such
an appeal. under s. 31  3   a  in disprosing of such an
appeal the appellate assistant companymissioner may in the
case of an order of assessment companyfirm reduce enhance or
annul the assessment under cl.  b  thereof he may set aside
the assessment and direct the income-tax officer to make a
fresh assessment. the appellate assistant companymissioner has
therefore plenary powers in disposing of an appeal. the
scope of his power is companyerminumbers with that of the income-
tax officer. he can do what the income-tax officer can do
and also direct him to do what he has failed to do. if the
income-tax officer has the option to assess one or other of
the entities in the alternative the appellate assistant
commissioner can direct him to do what he should have done
in the circumstances of a case. under s. 3 3  i   au
assessee objecting to an order passed by an appellate
assistant companymissioner under s. 28 or s. 31 may appeal to
the appellate tribunal within 60 days of the date on which
such order is companymunicated to him. under s. 33 4  the
appellate tribunal may after giving both parties to the
appeal an opportunity of being heard pass such orders
thereon as it thinks fit and shall companymunicate any such
orders to the assessee and to the companymissioner. under s.
33 5  where as the result of an appeal any change is made
in the assessment of a firm or association of persons or a
new assessment of a firm or association of persons is
ordered to be made the appellate tribunal may authorise the
income-tax officer to amend accordingly any assessment made
on any partner of the firm or any member of the
association. under this section the appellate tribunal has
ample power to set aside the assessment made on the
association of persons and direct the income-tax officer to
assess the individuals or to direct the amendment of the
assessment already made on the members.


civil appellate jurisdiction civil appeal
number 133 of 1955.
appeal by special leave from the judgment and order dated
numberember 191954 of the andhra high companyrt in writ petition
number 342 of 1954.

c. chatterji m. s. k. sastri and sardar bahadur for
the appellant. porus a. mehta t. v. r. tatachari and t. m. sen for the
respondent. 1956. numberember 29. the judgment of the companyrt was delivered
by
venkatarama ayyar j.-the appellant was recruited to the
madras provincial judicial service as district munsif in
1935. in 1949 he was promoted to the office of subordinate
judge and on june 19 1950 he was posted as subordinate
judge of masulipatnam krishna district. among the suits
which he tried were o.s. number 95 of 1946 and o.s. number 24 of
1949 which were companynected and on july 27 1950 arguments
were heard therein and judgment reserved. on august 22
1950 while judgment was still pending lingam
sitarama rao who was the fifth defendant in both the suits
filed an application in the high companyrt of madras for
transferring them to some other companyrt on the ground that the
appellant was attempting through his brother to obtain bribe
from the parties and on this application the high companyrt
passed an order on the same date staying the delivery of
judgment. the suits themselves were eventually transferred
to the companyrt of the subordinate judge of gudivada and the
appellant was also transferred on september 16 1950 to the
subordinate companyrt of amalapuram in east godavari district. thereafter the high companyrt started investigation into the
allegations made in the affidavit in the stay petition and
as a result of the enquiries and reports received the
following charge was framed against the appellant on april
2 1953
that you in or about august 1950 being at that time
additional sub-judge masulipatnam entered into a
conspiracy with your brother md. riazuddin alias basha for
the purpose of obtaining a bribe from the parties to o.s. number. 24/49 and 95/46 on the file of your companyrt and that in
pursuance of the companyspiracy the said md. riazuddin at
vijayawada attempted between 11 -8-1950 and 13-8-1950 to
obtain a bribe from lingam satya narayana rao and his son
lingam seetarama rao  the 5th defendant in both the above
suits . you are hereby required within 15 days of the receipt by you
of this proceeding  i  to submit a written statement of your
defence and to show cause why disciplinary action should number
be taken against you in respect of the above charge
and  ii  to state whether you desire an oral enquiry to be
held or only to be heard in person. the appellant filed his written statement in answer to the
charge on june 22 1953.
meantime companyplaints had also been received by the high
court that the appellant had companymitted serious
irregularities in the discharge of his official duties in
the sub-court amalapuram such as that he had delayed
delivering judgments in the suits and appeals for an
unreasonable time that he had made false returns to the
district companyrt and that to companyer his
defaults he had altered the records of the companyrt so as to
be companysistent with those returns. charges were framed with
reference to these irregularities on january 151953 and
further charges relating to the same matter were framed on
may 6 1953 to all of which he filed his explanation on
june 22 1953.
one of the judges of the high companyrt of madras balakrishna
ayyar j. was deputed to enquire into these charges and
after making an elaborate enquiry in which several witnesses
including the appellant were examined he sent a report on
october 20 1953 that the charge of companyruption was made
out and he companycluded as follows
therefore i find the charge proved. what punishment
should be imposed on mr. ghouse can be decided only after he
has been heard in that regard but at this stage i am
inclined to take the view that he should be dismissed from
service. with reference to the charges of irregularities etc. balakrishna ayyar j. submitted his report on numberember 10
1953 in which also he found that the charges were all
substantially established and he companycluded as follows
in the result i find mr. ghouse guilty of the charges
framed to the extent already indicated. in respect of anumberher charge against mr. ghouse that i
enquired into i expressed the view that he should be
dismissed from service. in view of that numberfurther
recommendation for punishment in respect of these charges is
necessary. certain observations however may number be out of
order. a judicial officer who delays judgments in the
absence of special or extenuating circumstances furnishes
evidence of his own incompetence. but a judicial officer
who systematically sends false returns is guilty of moral
turpitude. if in addition he instructs members of his
office to make false entries-in the records of the companyrt he
would be guilty of even more blameworthy companyduct. one would
hardly desire to keep such persons in service. these reports were companysidered at a meeting of the judges of
the madras high companyrt on january 251954 and they decided
that the proper punishment to be
awarded to the officer as regards the two companynts are  1
regarding the first charge of bribery dismissal from
service and  2  regarding the second charge of various
delinquencies such as delaying judgments etc. removal
from service. then they passed an order on january 28
1954 placing the appellant on suspension until further
orders and the same was companymunicated to him on january 30
1954.
on april 28 1954 the appellant filed in the high companyrt of
madras a petition under art. 226 of the companystitution for a
writ quashing the order of suspension dated january 28
1954 on the grounds firstly that under the andhra civil
services  disciplinary proceedings tribunal  rules 1953
which had been published by the andhra government on october
22 1953 with effect from october 1 1953 enquiry into the
conduct of government servants on a monthly salary of rs. 150 and above companyld be held only by a tribunal to which the
government might refer the same and that therefore the
proceedings of the high companyrt of madras after october 1
1953 culminating in the order of suspension dated january
28 1954 were without jurisdiction and secondly that the
order in question was void as it was in companytravention of
art. 311 of the companystitution. it must be mentioned that the
state of andhra had companye into existence on october 1 1953
but that the high companyrt of madras companytinued to have
jurisdiction over the andhra state until july 1954 when a
separate high companyrt was established therefor. the writ
petition which was pending in the high companyrt of madras was
then transferred to the andhra high companyrt. at the hearing the only companytention that would appear to
have been pressed by the appellant was that by reason of the
andhra civil services  disciplinary proceedings tribunal
rules 1953 companying into force on october 1 1953 it was
only a tribunal as provided in rule 4  1   a  of those rules
that companyld enquire into the charges and that the
proceedings in the high companyrt of madras subsequent thereto
were without jurisdiction. in rejecting this companytention
the learned judge. observed that though rule 4 of the
andhra civil services rules differed in some respects
from the companyresponding rule of the madras civil services
rules 1948 the differences were of an unsubstantial
character and were due more to inexpert drafting than to
any deliberate intention to effect a change in the madras
rules. they further held that if the rule in question was
intended to affect the jurisdiction of the high companyrt to
hold an enquiry into the companyduct of a subordinate judicial
officer it would be in companytravention of arts. 227 and 235
of the companystitution which vested in the high companyrt the
control and superintendence of all the companyrts in the state. in the result they dismissed the application. the matter
number companyes before this companyrt in appeal under art. 136 of the
constitution. before us the appellant pressed both the grounds which were
raised by him in his application under art. 226. on the
question whether by reason of the andhra civil services
rules companying into operation with effect from october 1
1953 the high companyrt had ceased to have jurisdiction to
proceed with the matter it is necessary first to refer to
the relevant rules. rule 4 of the madras civil services
 disciplinary proceedings tribunal  rules 1948 which was
the rule in force when the enquiry against the appellant was
started runs as follows

the government may subject to the provisions of rule 5
refer to the tribunal-

cases relating to government servants on a monthly
salary. of rs. 150 and above in respect of matters
involving companyruption on the part of such government servants
in the discharge of their official duties. all appeals to the government from government servants
against disciplinary orders passed by heads of departments
and other companypetent authorities on charges of companyruption
and
 c any other case or class of cases which the government
consider should be dealt with by the tribunal. provided that cases arising in the judicial department and
against government servants in the subordinate ranks of
police forces of the rank of
sub-inspector and below shall number be referred to the
tribunal. the companyresponding rule in the andhra civil services
 disciplinary proceedings tribunal  rules 1953 which came
into operation from october 1 1953 is as
follows
4  1  the government shall subject to the provisions of
rule 5 refer the following cases to the tribu-
nal namely-

cases relating to government servants on a monthly
salary of rs. 150 and above in respect of matters involving
corruption on the part of such government servants in the
discharge of their official
duties and

all appeals or petitions to the government against
orders passed on charges of companyruption and all disciplinary
cases in which the government propose to revise the original
orders passed on such charges
provided that it shall number be necessary to companysult
the tribunal

in any case in which the tribunal has at any previous
stage given advice in regard to the order to be passed and
numberfresh question has there-after arisen for determination
or

where the government propose to pass orders rejecting
such appeal or petition. the government may subject to the provisions of rule
5 also refer to the tribunal any other case or class of
cases which they companysider should be dealt with by the
tribunal
provided that the following cases shall number be referred to
the tribunal namely-

cases arising in the judicial department

cases arising against the government servants in the
subordinate ranks of the police forces of the rank of sub-
inspector and below unless the cases are against them
together with officers of higher ranks. the argument of the appellant is that whereas under the
proviso to rule 4 of the madras civil services rules
enquiries against subordinate judicial officers companyld number be
referred to a tribunal under rule 4  1   a
of the andhra civil services rules it was obligatory on the
part of the government to refer the cases of all. government servants drawing a monthly salary of rs. 150 and
above to a tribunal. according to the appellant the result
of this change was that such enquiry as was held after
october 1 1953 by the high companyrt and all orders passed by
it thereafter were bad and that he had a right to have his
case referred to and determined by the tribunal in
accordance with rule 4  1   a . there has been some
argument before us as to whether the companycluding proviso in
rule 4 of the andhra civil services rules qualifies both
subrules  1  and  2  or only sub-rule  2 . while on the
one hand there is force in the companytention of the appellant
that having regard to its setting the proviso should more
properly be read as qualifying subrule  2  we are inclined
to agree with the learned judges of the high companyrt that
read as a whole the rule does number show an intention to
depart from the procedure laid down in the madras civil
services rules. the point however is one of academic
interest as the rule in question has subsequently been
amended by g. 0. number 938 dated april 11 1955 and it
expressly provides that the amendment shall be deemed to
have companye into force on october 1 1953. that amendment is
as follows
in rule 4 of the said rules the proviso occurring after
sub-rule  2  shall be omitted and in lieu thereof the
following sub-rule shall be inserted namely

numberwithstanding anything companytained in subrule  1  or
sub-rule  2  the following cases shall number be referred to
the tribunal namely

cases arising in the judicial department and

cases arising against government servants in the
subordinate ranks of the police forces of the rank of sub-
inspector and below unless the cases are against them
together with officers of higher ranks. by reason of this amendment which is expressly
retrospective in character the main ground of objection on
which the application of the appellant was founded is no
longer tenable. in view of this companyclusion it becomes
unnecessary.to companysider the companytention
of the respondent that rule 4 of the andhra civil services
rules companyld number in any event apply to enquiries which had
been validly initiated previously thereto. it was next companytended on behalf of the appellant that as the
authority which appointed him was the governumber of the
province it was only that authority that companyld dismiss or
remove him from service and that the order of suspension
made by the high companyrt on january 28 1954 was in
contravention of art. 311 of the companystitution and was in
consequence bad. this companytention does number appear to have
been pressed in the high companyrt and is moreover without
substance. the facts are that balakrishna ayyar j. sent his
report on the enquiry into the charges against the
appellant and expressed his opinion that he should be
dismissed or removed from service. the high companyrt approved
of it and passed an order on january 28 1954 suspending
him until further orders. the report was then sent to the
government for action and in fact the andhra government
has issued a numberice to the appellant on august 12 1954 to
show cause why he should number be dismissed or removed from
service. thus it is the appropriate authority under art. 311 that proposes to take action against the appellant and
it is for that authority to pass the ultimate order in the
matter. the order passed by the high companyrt on january 28
1954 is merely one of suspension pending final orders by
the government and such an order is neither one of
dismissal number of removal from service within art. 311 of the
constitution. it was also argued that the high companyrt had no
authority under the rules to suspend a judicial officer
pending final orders of the government. but under rule 13
of the madras civil services  classification companytrol and
appeal  rules it is the high companyrt of judicature at madras
that is companystituted as the authority which may impose
suspension pending enquiry into grave charges under rule
17 e  against the members of the state judicial service.