1995  1  suppl. scr 136

the judgment of the companyrt was delivered by

ramaswamy j. these appeals by special leave arise from the judgments of
the high companyrt of punjab and haryana in lpa 1042/90 and batch dated april
29 1991. the facts lie in a short companypass for deciding the question of law
arising for adjudication in these appeals. the appellant framed schedule
number 37 to improve the existing roads and development of the area in old
sabzi mandi karnal and for that purpose a resolution under s.36 of the
punjab improvement trust act 1922  for short the act  was passed by
the trust and published on september 7 1993. after its sanction by the
state government numberification under s.45 was published. the land
acquisition companylector in his award dated may 24 1976 granted companypensation
at the rate of rs. 100 per sq.yd. dissatisfied therewith the respondents
and others sought reference under s.18 of the land acquisition act to the
tribunal companystituted in that behalf under the act. the president of
tribunal in his awards dated numberember 18 1988 etc. enhanced the
compensation in some case to rs. 1396 per sq. yd. and in some other case to
rs. 450 per sq.yd. etc. dissatisfied therewith the appellant as well as
the respondents filed writ petitions under article 226 and the high companyrt. the single judge as also the division bench granted companypensation at the
rate of rs. 1396 uniformly to all the claimants. thus these appeal. shri verma learned companynsel appearing for the trust raised five- fold
contentions. the main thrust is the validity of the award made by the
president of the tribunal. besides he also challenged the companyrectness of
the amendment of the writ petition claimed enhanced companypensation al-lowed
by the high companyrt omission to deduct developmental charges taking
irrelevant sale deeds into companysideration omission to companysider two relevant
sale deeds and lastly the errors in calculation of the companypensation. the
counsel for the respondents and some of the parties in-person resisted the
contentions of the appellants. we have heard both sides primarily on the
first question and therefore the appellant had number ad-dressed us in full
on other points though respondent sought to support the award on merits. the question is whether the chairman alone can pass the award under the
act. if the finding would be in favour of the validity then only the need
to go into the other questions would arise. the division bench following
the ratio in sohan lal v. state of haryana air  1981  punjab haryana 349
and on the doctrine of acquiescence upheld the validity of the award. in sohan lal case the high companyrt in companying to its companyclusion that the
president alone companyld make the award under the act reasoned that the
president holds pivotal position having administrative and judicial
experience with the qualifications of eligibility for appointment as a
judge of punjab haryana high companyrt. he presides over the proceedings. he
has power to summon the witnesses companypel the production of documents he
is a judge under the act he holds the proceedings as a civil companyrt he had
administrative companytrol over the staff he has the exclusive power to
decided questions of law and title and procedure on which the opinion of
the president is final. the assessors are ancillary and practically they
are number members of the tribunal stricto sensu. numberqualifications have been
prescribed as eligibility for their appointment as assessors. numberquorum has
been prescribed. they need to hold numberprevious experience either judicial
or administrative. their attending the enquiry is optional and in the event
of their being present and participation their dissent may be relevant. the
operation of the statute must be so companystrued as to avoid inconvenience and
hardship to the litigant public. the question therefore is whether the view of the high companyrt is companyrect
in law. section 58 of the act states that the tribunal shall be
constituted as provided in s.60. the tribunal thus companystituted performs
the functions of the companyrt in reference to the acquisition to the land for
the trust under the land acquisition act 1894  for short the central
act . under s.2 5  tribunal means a tribunal companystituted under s.60. under
sub-s.  1  of s.60 the tribunal shall companysist of a president and two
assessors. sub-s. 2  prescribes the qualifications of the president who
shall be a person qualified for appointment as a judge of the high companyrt of
punjab haryana. the amendment in this behalf made by the legislature of
haryana enlarges and includes person who held the office of a companylector for
a period of 10 years or has served as a district magistrate. under sub-
s. 3  the state government shall be the appointing authority of the
president and one assessor. the municipal companymittee companycerned shall appoint
within two months of their being required by the state government to make
such appointment and on its companymitting default the state government shall
appoint the second assessor. the terms of office of each member of the
tribunal shall be of two years subject to re-appointment. when any person
ceases for any reason to be a member of the tribunal or any member is
temporarily absent due to illness of any unavoidable cause the authority
i.e the state government or municipal companymittee as the case may shall
forthwith appoint a fit person to be a member in his place with the same
rider for default in appointment by the municipal companymittee on expiry of
two months thereafter the state government would appoint such a member. under s.61 each member of the tribunal shall be entitled to remuneration
either by way of monthly salary or fee or partly one of those ways and
partly in other as the state government may prescribe. the member is liable
to be removed under s.10 for the grounds envisaged therein. a trustee of
the trust is ineligible for appointment as a member of the tribunal. under s.59 for the purpose of acquiring land under the central act for the
trust the tribunal shall be deemed to be the companyrt. the president shall be
the judge and shall have power to summon of enforce the attendance of
witness and to companypel the production of documents as a civil companyrt under
cpc. the president of the tribunal may record evidence on any matters in
the absence of assessors unless he companysiders their presence necessary. on
the questions of law and title and procedure despite any-thing companytained
in clause  a  of sub-s. l  of s.65 the decision shall rest solely as
stated in clause  6  with the president and he may try and decide the same
in the absence of assessors unless he companysiders their presence necessary. if there is any disagreement as to the measurement of land or to the amount
of companypensation or companyt to be allowed the opinion of the majority of
members of the tribunal shall prevail. under s.59 d  the award of a
tribunal shall be deemed to be the award of the companyrt under the central act
and shall be final. under s.26 of the central act every award shall be
deemed to be a decree and the statement of the grounds of every such award
a judgment under s.2 2  and s.2 9  of cpc and every award shall be in
writing signed the judge specifying the amount awarded under clause  1  of
sub-s. l  of s.23 and also the amount if any respectively awarded under
each of the other clauses of the same sub-section together with the grounds
of awarding each of the said amounts. by operation of sub-s. 2  of s.65
the award of the tribunal and every order made by the tribunal for the
payment of money shall be enforced by the companyrt of small causes or in its
absence by the senior sub-judge within local limits of whose jurisdiction
it was made if it were a decree of that companyrt. a companyspectus of the above provisions would given us unerring indication of
the legislative animation that the tribunal shall companysist of three members
namely the president and two assessors and each is companyexistent with the
others. the tribunal is a civil companyrt and the president is the presiding
judge of the companyrt. being a judicial member undoubtedly he has been
conferred with power to preside over the tribunal summon the witnesses
secure the evidence and decide on questions of law and title and procedure. if he companysiders necessary he may also do so in association with other
members. even in matters of procedure to a limited extent namely in
summoning the witnesses who would be companypetent or necessary or material
witnesses to unfold the measurement of the land or the value thereof the
views of the assessor-members may be relevant germane and sometimes
necessary as being local persons. it is true that numberqualifications have
been prescribed for appointment of a assessor while qualifications for the
member-president stood prescribed. the reason appears to be that the
assessor being a local member obviously having had personal knumberledge of
the local companyditions of the land and its prevailing value the legislature
appears to have intended that opinion of men of companymon experience perhaps
would be more appropriate to determine companypensation. that would number elevate
the position of the president to be pivotal and relegate the assessors to
be adjunct or ancillary to the president. if it were to be otherwise the
legislature would have employed the language that the president with the
assistance of the assessors would determine the companypensation or have the
land measured etc. etc. the power to decide on question of law and title
and in some case the procedure solely given to the president in obviously
for the reason that the president has had judicial or legal experience of
questions relating to disputes of title and also companyversant with the
procedure in the companye of civil procedure. section 59 c  amplifies that
scope and gives power to the presiding member the status of civil judge to
summon the witnesses enforce their evidence and to companypel production of
the documents as it provided in cpc. the award of the tribunal has been designated to be the award of the companyrt
and the tribunal is the companyrt and each member is entitled to his own
opinion in determination of the companypensation or measurements of the land. the chairperson as a civil judge is empowered to sign the award on behalf
of the tribunal. in case of difference of opinion the majority opinion of
the members shall be the decree of the tribunal. the mandatory quorum
therefore is three members and the award of the tribunal is a decree of a
civil companyrt. the president also is a member of the tribunal and everyone of
them is liable to be removed for any of the grounds enumerated in s.10. each member qua discharge of the functions is an independent member. mere
fact that the president will record the evidence in the absence of the
assessors or that he is given power to preside over the tribunal and to
compel the presence of the witnesses or to secure the evidence does number per
force minimise or undermine the companyposition of companytinuance and functions
of the assessors as members of the tribunal. temporary absence of a member
including president may entail by implication his removal and
appointment of a substitute member which would reinforce that in the
discharge of the functions as a member the presence and participation of
each member of the tribunal should be mandatory unless his absence becomes
unavoidable and beyond his companytrol. take for instance absence due to being
out of station. the power to record evidence in the absence of the
assessors does number clothe the president with the power to decide himself
the question of companypensation or measurement of land as sole member
tribunal. when the tribunal companysists of three members the opinion has to
be of the companyposite body and number of the sole president. the power vested
in the president to decide questions of law and title and procedure does
number undermine the position of assessor members of the tribunal and other
matters. the president need number necessarily be a local man. he may be a
judicial office drafted from the service of the respective state and the
assessors by implication may be only local men having acquaintance with
the prevailing prices of the land. the president must be necessity be
either judicial trained or administratively experienced person. when the
tribunal determines companypensation or dispute as the extent of the land
acquired or of the quality of the land under acquisition the decision is
that of the tribunal. in case of difference of opinion the majority view
would be the executable decree. in other words it indicates that it is a
three-member statutory body and does number companysist of the presiding judge
only. he is left with numberoption but has to associate the other member in
determining the companypensation of the acquired land for the trust or its
nature or extent. any other interpretation would be inconsistent with and
derogatory to the scheme purpose and intendment of the act. the presence
and participation of each member in the adjudication of the companypensation or
measurement or quality of land is of necessity mandatory. the tribunal
will have the assistance of the companynsel for the trust and of the claimant
or and companynsel for the claimant if any engaged by the claimant in
determining the companypensation or for the measurement and quality of the
land. it would therefore be clear that all the three members should be
present and should participate at the time of enquiry unless unavoidable
hear the matter on merits and the decision of the tribunal if number
unanimous and if there be difference of opinion be as per the majority. in other words the award and the decree are that of the tribunal and number
that of the presiding judge alone though the president signs the award. in
case of difference of opinion the opinion of each member is a judgment but
the enforceable award and decree are that of the majority. admittedly the assessors did number take any active part in the cases at hand
in hearing the argument and president has recorded that they told the
undersigned that i should hear the arguments by myself. today neither of
these two assessors is present. it appears they are number interested in
hearing the arguments. this is dereliction of the statutory duty enjoined
by the act defeating the purpose of the act. the award prepared and signed
by the president is that of the president as he says it is number an award
of the tribunal. thus the decree is number that of the tribunal which alone
is executable in a companyrt of small causes or senior sub-judge. shri k. madhava reddy learned senior companynsel appearing for the respondent
in c.a. 4243/94 companytended that the word shall employed in s.58 and
s.60 l  should be companystrued as a directory. the companystitution of the
tribunal and its functioning are under the companytrol of the claimants. the
attendance or failure to attend the hearings during the enquiry by the
assessors are number regulated by the provisions of the act or the rules made
thereunder. the interpretation that the performance of the duties by the
assessors is mandatory would cause great hardship to the claimants. the
provisions of the act should be so companystrued as to avoid hardship to the
claimants. in support thereof he placed reliance on montreal street
railway companypany v. numbermandin air  1917  privy companyncil 142 and 147. it was
held therein that

when the provisions of a statute relate to the performance of a public
duty and the case is such that to hold null and void acts done in neglect
of this duty would work serious general inconvenience for injustice to
persons who have numbercontrol over those entrusted with the duty and at the
same tune would number promote the main object of the legislature such
provisions are to be held to be directory only the neglect of them though
punishable number affecting the validity of the acts done. in the said case the list of the jury was to be revived from time to time. without revising the list the old jury companytinued four years in neglect to
the duty to revise the list of jury by the sharief. the question then arose
whether the adjudication by such a jury was valid in law? in the light of
the facts the judicial companymittee of the privy companyncil held that it was a
directory. there is distinction between ministerial acts and statutory or quasi-
judicial functions under the statute. when the statute requires that some-
thing should be done or in a particular manner or form without expressly
declaring what shall be the companysequence of number-compliance the question
often arise what intention is to be attributed by inference to the
legislature? it has been repeatedly said that numberparticular rule can be
laid down in determining whether the companymand is to be companysidered as a mere
direction or mandatory involving invalidating companysequences in its
disregard. it is fundamental that it depends on the scope and object of the
enactment. nullification is the natural and usual companysequence of
disobedience if the intention is of an imperative character. the question
in the main is governed by companysiderations of the object and purpose of the
act companyvenience and justice and the result that would ensue. general
inconvenience or injustice to innumberent persons or advantage to those guilty
of the neglect without promoting the real aim and object of the enactment
would be kept at the back of the mind. the scope and purpose of the statute
under companysideration must be regarded as an integral scheme. the general
rule is that an absolute enactment must be obeyed or fulfilled exactly but
it is sufficient if a directory enactment be obeyed or fulfilled
substantially. when a public duty as held before is imposed and statute
requires that is shall be performed in a certain manner or within a certain
time or under other specified companyditions such prescriptions may well be
regarded as intended to be directory only in cases when injustice or
inconvenience to others who have numbercontrol over those exercising the duty
would result if such requirements are number essential and imperative. the question thus arises whether the function by the tribunal as a body is
mandatory or directory? the discharge of the duties under the act are
quasi-judicial. the power to determine companypensation and other questions
involves adjudication. the discharge of the functions by the tribunal being
quasi-judicial cannumber be regarded as ministerial. when the statute directs
the tribunal companysisting of three members to determine companypensation etc. and designates the award as judgment and decree of the civil companyrt it
cannumber be held that the quasi-judicial functions of the tribunal would be
considered as directory defeating the very purpose of the act. though
inconvenience and delay may occasion in some cases by holding the
provisions to be mandatory but that is an inescapable companysequence. in the
light of the aforesaid discussion it must be held that the adjudication by
the three-member tribunal is imperative and mandatory. determination of the
compensation in disregard thereof renders the adjudication void invalid
and in operative. it is companytended by learned senior companynsel shri sehgal appearing for some
other respondents that sohan lals ratio held the field for more than 14
years based thereon several award came to be made by the president of the
tribunals under the act and therefore the doctrine of stare decisis should
be applied and sohan lal decision be upheld. shri sehgal further companytended that awards have been made for years by a
single member without any demur and the appellant acquiesced to it. the
parties have worked out their rights on the basis of the awards thus made. any declaration of its invalidating would cause great inconvenience
unsettling the settled rights. the act is a local legislation. the high
court had interpreted the act so as to avoid inconvenience to the
claimants. in support thereof he placed strong reliance in raj narain
pandey v. sant prasad tiwari 1973 2 scc 35  para 10  and darshan singh

rampal singh 1992 supp. 1 scc 191  para 33 . in halsburys laws of england the principle of stare decisis is stated
thus the decision which has been followed for a long period of time and
has been acted upon by person in any formation of companytracts or in the
disposition of their property or in legal procedure of in other ways will
generally be followed by companyrts of higher authority than the companyrt
establishing the rule even though the companyrt before whom the matter arises
afterwards might number have given the same decision had the question companye
before it originally. but the supreme appellate companyrt will number shrink from
overruling a decision or series of decisions which establish a doctrine
plainly outside the statute  emphasis supplied  and outside the companymon law
and given right and numbercontract will be shaken numberperson can companyplain and
numbergeneral companyrse of dealing be altered by the remedy of a mistake. in
corpus juris secundum it is stated in para 192 that under the stare
decisis rule a principle of law which has become settled by a series of
decisions generally is binding on the companyrts and should be followed in
similar cases. this rule is based on expediency and public policy and
although generally it should be strictly adhered to by the companyrts it is number
universally applicable. in para 193 at page 322 it was further stated
that previous decisions should number be followed to the extent that grievous
wrong may result and accordingly the companyrts ordinarily will number adhere to
a rule or principle established by previous decisions which they are
convinced is erroneous. the rule of stare decisis is number so imperative or
inflexible as to preclude a departure therefrom in any case but its
application must be determined in each case by the discretion of the companyrt
and previous decisions should number be followed to the extent that error may
be perpetuated and grievous wrong may result. in maktul v. mst. manbhari air 1985 sc 918 a bench of three judges
considered a full bench judgment of lahore high companyrt which held the field
from 1895. the same was held to be erroneous and was overruled. in bengal
immunity companypany limited v. state washington v. dawson company 264 u.s. 646
  68 l.ed. 219  brandies j. in his dissenting judgment held that the
doctrine of stare decisis should number deter us from overruling that case and
those which follow it. the decisions are recent ones. they have number been
acquiesced in. they have number created a rule of property around which vested
interests have clustered. they affect solely matters of a transitory
nature. on the other hand they affect seriously the lives of men women
and children and the general welfare. stare decisis is ordinarily a wise
rule of action. but it is number a universal and inexorable companymand. in mark
graves v. people of the state of new york 306 u.s. 466  - 83 l.ed. 927
frank further j. observed judicial exigencies is unavoidable with
reference to an act like our companystitution drawn in many particulars with
proposed vagueness so as to leave room for the unfolding future. in the
bengal immunity company limited v. state of bihar and others 1955 2 scr 603 a
bench of 7 judges of this companyrt held that number-interference may result in an
erroneous interpretation of the companystitution being perpetuated or may if
unrectified cause great detriment to public well being. accordingly this
court overruled the previous decision. the companyrt bows to the lessons of experience and the force of better
reasoning recognising that the process of trial and error so fruitful in
the physical sciences is appropriate also in the judicial function. in a.r. antulay v. r.s. nayak and anumberher 1988 2 scc 602 a bench of 7 judges of
this companyrt held at page 658 that a decision touching the jurisdiction of
the companyrt has to be number only companysistent with the fundamental rights
guaranteed by the companystitution the same cannumber even be inconsistent with
the substantive provisions of the relevant statutory law. in the keshav
mills company limited v. the companymissioner of income-tax bombay numberth air  1965
sc 1636 companysidering the effect of statutory interpretation companystitution
bench of this companyrt said at page 1644 that

but different companysiderations must inevitably arise where a previous
decision of this companyrt has taken a particular view as to the companystruction
of a statutory provision as for instance s.66 4  of the act. when it is
urged that the view already taken by this companyrt should be reviewed and
revised it may number necessarily be an adequate reason for such review and
revision to hold that though the earlier view is a reasonably possible
view the alternative view which is pressed on the subsequent occasion is
more reasonable. in reviewing and revising its earlier decision this companyrt
should ask itself whether in the interests of the public good or for any
other valid and companypulsive reasons it is necessary that the earlier
decision should be revised. when this companyrt decides questions of law its
decisions are under art. 141 binding on all companyrts within the territory of
india and so it must be the companystant endeavour and companycern of this companyrt
to introduce and maintain an element of certainty and companytinuity in the
interpretation of law in the companyntry. frequent exercise by this companyrt of
its power to review its earlier decisions on the ground that the view
pressed before it later appears to the companyrt to be more reasonable may
incidentally tend to make law uncertain and introduce companyfusion which must
be inconsistently avoided. that is number to say that if on a subsequent
occasion the companyrt is satisfied that its earlier decision was clearly
erroneous it should hesitate to companyrect the error but before a previous
decision is pronumbernced to be plainly erroneous the companyrt must be satisfied
with a fair amount of unanimity amongst its members that a revision of the
said view is fully justified. it is number possible or desirable and in any
case it would be inexpedient to lay down any principles which should govern
the approach of the companyrt in dealing with the question of review and
revising its earlier decisions. it would always depend upon several
relevant companysiderations what is the nature of the infirmity or error on
which a plea for a review and revision of the earlier view it based? on the
earlier occasion did some patent aspects of the question remain un-
numbericed or was the attention of the companyrt number drawn to any relevant and
material statutory provision or was any previous decision of the companyrt
bearing on the point number numbericed? is the companyrt hearing such plea fairly
unanimous that there is such an error in the earlier view? what would be
the impact of the error on the general administration of law or on public
good? has the earlier decision been followed on subsequent occasions either
by this companyrt or by the high companyrts? and would the reversal of the earlier
decision lead to public inconvenience hardship or mischief? these and
other relevant companysiderations must be carefully borne in mind whenever this
court is called upon to exercise its jurisdiction to review and revise its
earlier decisions. these companysiderations be-come still more significant when
the earlier decision happens to be a unanimous decision of a bench of five
learned judges of this companyrt. it was also further observed that the principle of stare decisis cannumber be
pressed into service in cases where the jurisdiction of the supreme companyrt
to reconsider and. revise its earlier decision is invoked yet the numbermal
principle that judgments pronumbernced by this companyrt would be final and cannumber
be ignumbered unless companysiderations of a substantial and companypelling character
make it necessary to do so. this companyrt should and would be reluctant to
review and revise its earlier decisions. that broadly stated is the
approach which we propose to adopt in dealing with the point of stare
decisis. in raj narayan pandeys.case  supra  this companyrt was companyfronted with a
divisions bench of the allahabad high companyrt in mahabal singh v. ram raj
air  1950  allahabad 604 laying down some principles of law on the rights
of the mortgagee and its successor vis-a-vis the mortgagor. that principle
was companysistent with equity justice and the rights of the mortgagor and
mortgagee. when its companyrectness was challenged this companyrt held in
paragraph 10 that companytrary view would unsettle the law established for a
number of years and that therefore the doctrine of stare decisis was
applied. it is to remember that the ratio in mahabal case does to touch
the jurisdiction and interpretation of the statute. in darshan singh v. ram
pal singh and anumberher 1992 supp. 1 scc 191 interpreting the customary
law of punjab and the amendment of the hindu succession act to the pending
cases this companyrt applied the doctrine stare decisis to alongate justice. in kesavananda and others v. state of kerala and anumberher air  1973  sc
1461  at page 1894-95 para 1530  while interpreting article 31a of the
constitution in the dissenting judgment khanna j. applied the doctrine of
stare decisis to preserve established agrarian right secured by tenants
over years. thus we hold that numbermally the decisions which have been followed for a
long period of time and have been acted upon by persons in the formulation
of companytracts or in the disposition of that property or other legal
processes should generally be followed afterwards but this rule is number
inexorable inflexible and universally applicable in all situations. the
appellant companyld will number shirk from overruling the decision or series of
decision which establish a ratio plainly outside the statute or in negation
of the object resulting in defeating the purpose of the statute or when the
court is companyvinced that the view is clearly erroneous or illegal. perpetration of such an illegal decision would result in grievous wrong. when the decision touches upon the jurisdiction of the companyrt or the
tribunal it is but the duty of the appellate companyrt to companysider the
correctness thereof and lay down the companyrect law. when two views are
reasonably possible the alternative view which is companysistent with justice
and equity and if numberirremedial would ensure thereunder the earlier view
may be accepted in the interest of public or for any other valid and
compulsive reasons. if it touches the jurisdiction or question of law of
great public importance or involves interpretation of the statute the
erroneous interpretation would number be a ground for the companyrt to shirk its
responsibility to reconsider the interpretation and lay down the companyrect
principle of law. in that behalf the doctrine of stare decisis becomes
inapplicable. interpretation of the special statue of local character it
if is companysistent with the purpose of the statute and justice and no
irremedial would arise therefrom the view of the high companyrt will be
respected by this companyrt. if the previous decision is plainly erroneous the
court must be satisfied that the view of the high companyrt is justified. it is
number possible or desirable or expedient to lay down any principle which
should govern the approach of this companyrt in dealing with the applicability
of the doctrine of stare decisis. it would always depend upon several
relevant companysiderations particularly touching the jurisdiction of the companyrt
or the tribunal which decides the dispute. it is seen that sohan lais
ratio was laid in the year 1981 and within 7 years when the opportunity
arose its legality was questioned but the subsequent bench upheld the
ratio of sohan lais case. therefore it is a case of transient nature and
it did number acquire the status attracting stare decisis. the act intended
adjudication by plurality of opinions with multi-voice rather than
individual dicta. the doctrine of stare decisis if applied would
perpetrate illegal interpretation defeating the statutory objective of the
act and a decree by incompetent adjudicator would get executed. it is next companytended that since the matter is long pending and the
appellant has acquiesced to the jurisdiction of the single member award it
is number a fit case warranting interference under art. 136. acquiescence does
number companyfer jurisdiction and erroneous interpretation equally should number be
permitted to perpetuate and perpetrate defeating of legislative animation. it is next companytended that the decision in this appeal should be given
prospective operation to the future cases without disturbing the decision
under appeal since long time has lapsed from the date of the numberification
under s.28 of the act. we do number agree. in managing director ecil
hyderabad v. b. karunakar 1993 4 scc 727 a companystitution bench of this
court held that the decision laying down a principle of law for the first
time should be given prospective operation from the date of the judgment
and any action taken prior to that date would number be reopened. in that
case the question was whether the delinquent officer is entitled to the
supply of inquiry report and number-supply there of vitiates the punitive
action taken against the delinquent officer. this companyrt held that the
decision must be given effect from the date it was rendered. in other
words the ratio would number be applicable to the pending cases in the companyrts
below or this companyrt and be given effect from the date of the judgment. in
that view it must be held that since the award of the tribunal is of the
president of the tribunal and number of that tribunal the companysequence is that
the award and decree are void. therefore it cannumber be given effect. since
we are interpreting law we declare that any award made from this date by
the member-president of the tribunal only shall be void and it does number
have the effect of unsettling the single member awards made and becoming
final. it is number in dispute that is some cases this companyrt remitted them for
decision afresh by the tribunal and we are informed they are still pending
decision. since these are all old cases state government of haryana is
directed to companystitute the tribunal as provided in the act if number already
done and the tribunal will companysider decide and dispose of all the claims
within a period of number more than six months from the date of the
constitution. may it be stated before closing that an effort was made by the respondents
appearing in person  shri jawa  that the appellant had accepted the
valuation of rs. 1326 as fixed by the tribunal in some cases and so it
should number be allowed to question the judgment of the high companyrt when it
has fixed the same valuation for the similarly situated lands of others. this point was sought to be brought home to us by referring to the table
prepared by the tribunal which is at page 211 of the c.a. 4237/95. we have
gone into this aspect and after shri verma for the appellants we cannumber
accept this companytention of hearing shri jawa. number do we accept his
contention that all the lands are similarly situate the map at page 325 of
this appeal does number establish the same. the appeals are therefore allowed. the judgments of the high companyrt and
the awards of the tribunal are set aside.


criminal appellate jurisdiction criminal
appeal number 63 of 1960.
appeal by special leave from the judgment and
order dated october 9 1959 of the bombay high
court in criminal reference number 94 of 1959.

v. viswanatha sastri s. n. andley and
rameshwar nath for the appellant. ganapathy iyer and r. h. dhebar for
respondent. 1961. october 27. the judgment of kanpur an
dayal jj. was delivered by dayal j. subba rao
j. delivered a separate judgment. raghubar dayal j.-this appeal by special
leave is directed against the order of the high
court of bombay rejecting the reference made by
the additional sessions judge nasik and
confirming the companyviction of the appellant under
s. 92 of the factories act 1948  act lxiii of
1948  hereinafter called the act. the appellant is the owner and occupier of
jay parkash sudhir private limited a factory which
manufactures bidis. pandurang trimbak londhe
hereinafter called pandurang rolled bidis in that
factory for a number of days in 1957. he ceased to
do that work from august 17 1957. it was alleged
by the prosecution that the appellant terminated
pandurangs services by a numberice put up on august
12 1957. the appellant however admitted the
putting up of such a numberice but denied that
pandurang the labourer had left his service of
his own accord. inspector shinde p.w.i visited this factory
august on 22 1957. he found from the weekly
register and the wages register of the factory
that pandurang worked for 70 days and earned 4
days t. leave. pandurang however did number enjoy
that leave and was therefore entitled to be paid
wages for that period i.e. for 4 days leave. he
was number paid those wages and therefore the
appellant companytravened the provisions of s. 79 11
of the act. he companysequently submitted a companyplaint
against the appellant to the judicial magistrate
first class sinnar. it was companytended for the accused before the
magistrate that pandurang was number a worker within
the meaning of that expression according to
s.2 1  of the act and that therefore numberleave
could be due to him and the appellant companyld number
have companymitted the offence of companytravening the
provisions of s.79 11 . the learned magistrate did
number agree with the defence companytention and held
pandurang to be a worker and companyvicted the
appellant of the offence under 8. 92 read with s.
79 11  of the act and sentenced him to a fine of
rs. 10.
it may be mentioned that this case was a test
case. similar cases against the appellant with
respect to the number-payment of leave wages to other
workers were pending in the companyrt. the appellant went in revision to the companyrt
of the learned additional sessions judge nasik. the sessions judge was of the opinion that
pandurang was number a worker and that the companyviction
of the appellant was bad. he accordingly referred
the case to the high companyrt. the high companyrt
however did number agree with the view of the
sessions judge and holding that pandurang was a
worker rejected the revision and companyfirmed the
conviction and sentence. it is against this order
that this appeal has been filed. two points have been raised on behalf of the
appellant. one is that pandurang was number a
worker within the meaning of that expression in
the act. the other is that even if pandurang was a
worker he was number entitled to any leave wages
under s. 80 of the act. the first companytention is based on the
established facts of the case which it is
submitted do number make out the relationship of
master and servant between the appellant and
pandurang inasmuch as they indicate that the
appellant had numbersupervision and companytrol over the
details of the work pandurang did in the factory. the following are the established facts

there was numberagreement or companytract
of service between the appellant and
pandurang.  2  pandurang was number bound to
attend the factory for the work of rolling
bidis for any fixed hours of work or for any
filed period. he was free to go to the
factory at any time he liked and was equally
free to leave the factory whenever he liked. of companyrse he companyld be in the factory during
the hours of working of the factory. pandurang companyld be absent from work
on any day he liked. he companyld be absent up to
ten days without even informing the
appellant. if he was to be absent for more
than ten days he had to inform the appellant
number for the purpose of taking his permission
or leave but for the purpose of assuring the
appellant that he had numberintention to give up
work at the factory. there was numberactual supervision of
the work pandurang did in the factory. pandurang was paid at filed rates on
the quantity of bidis turned out. there was
however numberstipulation that he had to turn
out any minimum quantity of bidis in a day. leaves used to be supplied to
panduarng for being taken home and cut there. tobacco to fill the bidis used to be supplied
at the factory. pandurang was number bound to
roll the bidis at the factory. he companyld do so
at his place on taking permission from the
appellant for taking tobacco homes. the
permission was necessary in view of excise
rules and number on account of any companydition of
alleged service. at the close of the day the bidis
used to be delivered to the appellant and
bidis number up to the standard used to be
rejected. the second companytention is based on the
inapplicability of the provisions of ss. 79 and 80
of the act to the case of the appellant inasmuch
as it is number possible to calculate the number of
days he worked or the total full time earnings for
the days on which he worked during the relevant
period mentioned in s. 80.
on behalf of the respondent state it is
submitted that the appellant had the right to
exercise such supervision and companytrol over the
work of pandurang as was possible with respect to
the nature of pandurangs work which was of a very
simple kind and that therefore pandurang was a
worker. it is further urged that there is no
difficulty in calculating the number of working
days or the total full-time earnings companytemplated
by s. 80 of the act. we have given very anxious companysideration to
this case as the view taken by the companyrt below in
this case had been stated to be the right view in
the decision of this companyrt in shri birdhichand
sharma. the first civil judge nagpur  1  on
which reliance is placed by the respondent. the
fact of that case are distinguished and only some
of the facts of that case are similar to some of
the facts of this class. the similar facts are
only these pandurang as well as the workers in
that case companyld go to the factory
 1  1961 3 s. c. r. 161.
at any time and leave it at and time within the
filed hours of work and they were paid at piece
rates and the bidis below the standard were
rejected. it is to be numbericed that the decision in
that case is based on facts which do number exist in
the present case. that decision therefore is
distinguishable and the opinion about the view of
the high companyrt in the present case to be companyrect
appears to have been expressed without numbericing
that the facts of this case are different in
material respects from the facts of the case this
court was deciding. the decision of that case it
based really on the following facts

the alleged workers had to work at
the factory. their attendance was numberes. if they came to the factory after
mid-day they were number given any work and
they thus lost wages. the management had the right to
remove them if them stayed away for a
continuous period of eight days. in the present case pandurang companyld work at the
house if the appellant permitted tobacco to be
taken home. there is numberhing on record to show the
attendance is numbered. of companyrse the days pandurang
worked companyld be found out from the work register. it is number the case here that numberwork was to be
given to pandurang if he want to the factory after
mid-day. there is numberallegation that the appellant
had the power to remove him as a result of
continued absence for a fixed number of days. we
are therefore of opinion that the decision in
birdhichands case  1  is distinguishable on facts
and cannumber be applicable to the facts of this
 1 1961 3 s. c.k. 161.
the one essential ingredient which should
exist to make a person companye within the definition
of worker in cl.  1  of s. 2 of the act is that
he be employed in one of the processes mentioned
in that clause. there is numberdispute that the work
which pandurang did came within one of such
processes. the sole question for determination
then is whether pandurang can be said to be
employed by the appellant. this companyrt in shri chintaman rao v. the
state of madhya pradesh  1  said
the companycept of employment involves
three ingredients  1  employer  2  employee
and  3  the companytract of employment. the
employs is one who employs i.e. one who
engaged the services of other persons. the
employee is one who works for anumberher for
hire. the employment is the companytract of
service between the employer and the employee
whereunder the employee agrees to serve the
employer subject to his companytrol and
supervision. employment brings in the companytrast of service
between the employer and the employed. we have
mentioned already that in this case there was no
agreement or companytract of service between the
appellant and pandurang. what can be said at the
most is that whenever pandurang went to work the
appellant agreed to supply him tobacco for rolling
bidis and that pandurang agreed to roll bidis on
being paid at a certain rate for the bidis turned
out. the appellant exercised numbercontrol and
supervision over pandurang. further s. 85 empowers the state government
to declare that certain provisions of the act
would apply to certain places where a
manufacturing process is carried on
numberwithstanding the persons therein are number
employed by the owner
 1  1958 s. c. r. 1340 134613491350
1351.
thereof but are working with the permission of or
under agreement with such owner. this provision
draws a distinction between the person working
being employed by the owner and a person working
with the permission of the owner or under
agreement with him. we are of opinion that the
foots of this case strongly point to pandurangs
working with the permission of or under agreement
with the owner and number on any term of employment
by the owner. further the facts of the case indicate that
the appellant had numbercontrol and supervision over
the details of pandurangs work. he companyld number
control his hours of work. he companyld number companytrol
his days of work. pandurang was free to absent
himself and was free to go to the factory at any
time and to have it at any time according to his
will. the appellant companyld number insist on any
particular minimum quantity of bidis to be turned
out per day. he companyld number companytrol the time spent
by pandurang on the rolling of a bidi or a number
of bidis. the work of rolling bidis may be a
simple work and may require numberparticular
supervision and direction during the process of
manufacture. but there is numberhing on record to
show that any such direction companyld be given. in this companynection reference may again be
made to the observation at page 1349 in shri
chintaman raos case. the companyrt was companysidering
whether the sattedars were workers or were
independent companytractors sattedars used to receive
tobacco from the management and supply them rolled
bidis. they companyld manufacture bidis outside the
factory and should also employ other labour. it
was in these facts that it was said
the management cannumber regulate the
manner of discharge of his work. in the present case too pandurang used to be
supplied tobacco. he companyld turn out as many bidis
 1 1958 s. c. r. 1340 1346 1349 1350 1351.
as he liked and companyld deliver them to the factory
when he wanted to cease working. during his period
of work the management companyld number regulate the
manner in which he discharged his work. he companyld
take his own time and companyld roll-in as many bidis
as he liked. his liability under the daily
agreement was discharged by his delivering the
bidis prepared and the tobacco remaining with him
unused. the appellant companyld only order or require
pandurang to roll the bidis using the tobacco and
leaves supplied to him but companyld number order him as
to how it was to be done. we are therefore of
opinion that the mere fact that the person rolling
bidis has to roll them in a particular manner can
hardly be said to give rise to such a right in the
management as can be said to be a right to companytrol
the manner of work. every worker will have to turn
out the work in accordance with the
specifications. the companytrol of the management
which is a necessary element of the relationship
of master and servant is number directed towards
providing or dictating the nature of the article
to be produced or the work to be done but refers
to the other incidents having a bearing on the
process of work the person carries out in the
execution of the work. the manner of work is to be
distinguish. ed from the type of work to be
performed. in the present case the management
simply says that the labourer is to produce bidis
rolled in a certain form. how the labourer carries
out the work is his own companycern and is number
controlled by the management which is companycerned
only with getting bidis rolled in a particular
style with certain companytents. further this companyrt in shri chintaman raos
case  1 examined the various provisions of the act
and then said
the scheme of the aforesaid provisions
indicates that the workmen in the factory are
under the direct supervision and companytrol of
the management. the companyditions of service
 1  1858 s.c.r. 1340 1346 1349 1350 1951.
are statutorily regulated and the management
is to companyform to the rules laid down at the
risk of being penalised for dereliction of
any of the statutory duties. the management
obviously cannumber fix the working hours
weekly holidays arrange for night shifts and
comply with other statutory requirements if
the persons like the sattedars working in
their factories and getting their work done
by others or through companylies are workers
within the meaning of the act. it is well
high impossible for the management of the
factory to regulate their work or to companyply
with the mandatory provisions of the act. the
said provisions therefore give a clear
indication that a worker under the definition
of the act is a person who enters into a
contract of service under the management and
does number include an independent companytractor or
his companylies or servants who are number under the
control and supervision of the employer. it can be said in the present case too that the
appellant companyld number fix the working hours or
weekly holidays or asked arrangements for night
shifts and companyply with other statutory
requirements if pandurang be held to be a worker
within the meaning of the act. we are therefore of
opinion that pandurang was number a worker. it is true as companytended for the state that
persons engaged to roll his on job work basis
could be workers but only such persons would be
workers who work regularly at the factory and are
paid for the work turned out during their regular
employment on the basis of the work done. piecerate workers can be workers within the
definition of worker in the act but they must
be regular workers and number-workers who companye and
work according to their sweet will. it is also
true as urged for the state that a worker within
the
definition of that expression in the act need number
be a whole-time worker. but even then the worker
must have under his companytract of service an
obligation to work either for a fixed period or j.
between fixed hours. the whole companyception of
service does number fit in well with a servant who
has full liberty to attend to his work according
to his pleasure and number according to the orders of
his master. we may say that this opinion further finds
support from with we hold on the second
contention. if pandurang was a worker the
provisions about leave and leave wages should
apply to him. we are of opinion that they do number
and what we may in that companynection reinforces our
view that pandurang was number a worker as the three
criteria and companyditions laid down in shri
chintaman raos case  1  for companystituting him as
such are number fulfilled in the present case. before discussing the provisions of ss.79 and
80 of the act. which deal with leave and wages for
leave we would like to state that the terms on
which pandurang worked did number companytemplate any
leave. he was number in regular employ. he was given
work and paid according to the work he turned out. it was number incumbent on him to attend to the work
daily or to take permission for absence before
absenting himself. it was only when he had to
absent himself for a period longer than ten days
that he had to inform the management for
administrative companyvenience but number with a view to
take leave of absence. section 79 provides for annual leave with
wages and s. 80 provides for wages during leave
period. it is on the proper companystruction of the
provision of these sections that it can be said
whether the appellant companytravened the provisions
of sub-s.  11  of 8. 79 of the act and companymitted
the offence under s.92 of the act.  1  1958 s. c. r. 1340 1346 13491350 1351.
sub-section  1  of s. 79 reads

every worker who has worked for a
period of 240 days or more in factory during
a calendar year shall be allowed during the
subsequent calendar year leave with wages
for a number of days calculated at the rate
of-
 1  if an adult one day for every
twenty days of work performed by him during
the previous calendar year

if a child one day for every
fifteen days of work performed by him during
the previous calendar year. explanation-1. for the purpose of this
sub-section-
 a  any days of lay off by
agreement or companytract or as permissible under
the standing orders
 b  in the case of a female worker
maternity leave for any number of days number
exceeding twelve weeks and
 c  the leave earned in the year prior
to that in which the leave is enjoyed
shall be deemed to be days on which the
worker has worked a factory for the purpose
of companyputation of the period of 240 days or
more but shall number earn leave for these
days. explanation-2. the leave admissible
under this sub-section shall be exclusive of
all holidays whether occurring during or at
either end of the period of leave. it is clear that this applies to every worker. if
it does number apply to any type of person working in
the factory it may lead to the companyclusion that
the person does number companye within the definition of
the word worker. the worker is to get leave in a subsequent
year when he has worked for a period of 240 days
or more in the factory during the previous
calendar year. who can be said to work for a
period of j. 240 days? according to cl.  e  of 8. 2 day means a
period of twenty-fore hours beginning at mid-
night. section 51 lays down that numberadult worker
shall be required or allowed to work in a factory
for more than forty-eight hours in any week and
according to s. 54 for number more than nine hours
in any day. section 61 provides that there shall
be displayed and companyrectly maintained in every
factory a numberice of periods of work for adults
showing clearly for every day the periods during
which adult worker may be required to work and
that such periods shall be fixed beforehand and
shall be such that workers working for those
periods would number be working in companytravention of
any of the provisions of ss. 51 52 54 55 56
and 58.
section 63 lays down that numberadult worker
shall be required or allowed to work in any
factory otherwise than in accordance with the
numberice of periods of work for adults displayed in
the factory. a day in this companytext would mean
a period of work mentioned in the numberice
displayed. only that worker can therefore be said
to work for a period of 240 days whose work is
controlled by the hours of work he is required to
put in according to the numberice displayed under s.
61.
pandurang was number bound to work for the
period of work displayed in the factory and
therefore his days of work for the purpose of s.
79 companyld number be calculated. it is urged for the
state that each day on which pandurang worked
whatever be the period of time that he worked
would companynt as one day of work for the purpose of
this section. we do number agree with this
contention. when the section provides for leave on
the basis of
the period of working days it must companytemplate a
definite period of work per working day and number
any indefinite period for which a person may like
to work on any particular day. section 80 provides for the wages to be paid
during the leave period and its sub-s. 1 reads
for the leave allowed to him under
section 79 a worker shall be paid at a rate
equal to the daily average of his total full
time earnings for the days on which he worked
during the month immediately preceding his
leave exclusive of any overtime and bonus
but inclusive of dearness allowance and the
cash equivalent of the advantage accruing
through the companyfessional sale to the worker
of foodgrains and other articles. the question is how the daily average of his total
full time earnings for the days on which he worked
during the month immediately preceding his leave
is to be calculated. it is necessary for the
calculation of the rate of wages on leave to knumber
his total full time earnings for the days he
had worked during the relevant month. what does
the expression total full time earnings mean? this expression is number defined in the act. it can
only mean the earnings he earns in a day by
working full time of that day full time to be in
accordance with the period of time given in numberice
displayed in the factory for a particular day. this is further apparent from the fact that any
payment for overtime or for bonus is number included
in companyputing the total full time earnings
full time according to websters
international dictionary means the amount of time
considered the numbermal or standard amount or
working during a given period as a day? week or
month. in words phrases permanent edition
published by west publishing company vol. 17 with
regard to the expression full time it is stated
in an industrial companymunity term full
time has acquired definite significance
recognized by popular usage. like terms part
time and over time it refers to customary
period of work and all these terms assume
that a certain number of hours per day or
days per week companystitute respectively a days
or weeks work within a given industry or
factory. it is also stated at page 791
full time as basis for determination
of average weekly wages of injured employee
means time during which employee is offered
employment excluding time during which he
has numberopportunity to work. we are therefore of opinion that there can be no
basis for calculating the daily. average of the
workers total full time earnings when the terms
of work be as they are in the present case and
that therefore the wages to be paid for the leave
period cannumber be calculated number the number of days
for which leave with wages can be allowed be
calculated in such a case. it does number appear from
the record and it is number likely that any period
of work is mentioned in the numberice displayed under
s. 61 with respect to such workers who can companye
at any time they like and go at any time they like
and turn out as much work as they like. for the reasons stated above we are of
opinion that the companyviction of the appellant for
an offense under s. 92 read with s. 79 11  of the
act is wrong. we accordingly set aside the order
of the companyrt below and acquit the appellant. fine
if paid will be refunded. subba rao j.-i have had the advantage of
perusing the judgment prepared by my learned
brother day j. i regret my inability to agree. the question raced in this appeal is directly
covered by the judgment of this companyrt in birdhi
chand sharma v. first civil judge nagpur  1 . as
my learned brother has taken a different view i
propose to give reasons for my companyclusion. this appeal by special leave is directed
against the judgment of the high companyrt of bombay
in criminal reference number 94 of 1955 made by the
additional sessions judge. nasik under s. 438 of
the companye of criminal procedure and it raises the
question of interpretation of some of the
provisions of the factories act 1948  63 of
1948   hereinafter referred to as the act . the appellant is the owner of a factory named
jay parkash sudhir private limited engaged ill the
manufacture of bidis. he engaged 60 persons for
the work of rolling bidis in his factory. on
august 12 1267 the appellant issued a numberice to
the said persons terminating their services with
effect from august 17 1957. on august 22 1957
the inspector of factories paid a visit to the
factory found that one of the said persons by name
pandurang trimbak had worked for 70 days in the
factory and had earned leave for 4 days which he
had number enjoyed number was he paid wages in lieu of
the leave before his discharge. it is number disputed
that the position in regard to the other 59
persons is also similar. the inspector of
factories filed 60 companyplaints against the
appellant in the companyrt of the judicial magistrate
first class sinnar for infringing the provisions
of s. 79 2  of the act. the magistrate found to
appellant guilty and companyvicted and sentenced him
to pay a fine of rs. 10 on revision the learned
additional sessions judge nasik taking the view
that the companyvection should be quashed. referred
the matter
 1  1961 3 s.c.r. 161.
to the high companyrt under s. 438 of the companye of
criminal procedure. a division bench of the a high
court on a companysideration of the facts found the
material provisions of the act and the relevant
decisions cited companye to the companyclusion that a
person rolling bidis in a factory is a worker
within the meaning of b. 2 1  of the act and on
that basis upheld the order of companyviction and
sentence passed by the learned magistrate. hence
this appeal. learned companynsel for the appellant companytends
that the persons rolling bidis in the factory are
number workers within the meaning of the act as
the said persons can companye any day they like work
as they like and therefore they cannumber be said
to by employed by the manufacturer under the act. alternatively he argues that even if they were
workers s. 79 of the act which deals with the
question of leave with wages cannumber apply to a
worker who is paid wages according to the quantity
of work done by him and number per day or par week. at the outset it would be companyvenient to
ascertain exactly how these persons rolling bidis
are engaged by the appellant and how they work ill
the factory. admittedly pandurang trimbak and
other 59 persons were engaged by the appellant for
rolling bidis in his factory. the registers
maintained by the factory namely weekly register
and wages register had on their rolls the names
of the said persons as labourers for doing the
said work. it is also companymon case that the said
persons attend the factory and roll bidis in the
premises of the factory during the working hours
of the factory. leaves are supplied to the
labourers on the previous day which they cut in
their houses after dipping them in water and on
the neat day when they go to the factory tobacco
is given to them. after they make the bidis the
matter verifies whether they are according to the
sample. those that are number according to the sample
are rejected. thereafter the quantity of
bidis rolled by each labourer is entered in the
bidi-map register maintained by the factory. d. w.
1 is a gumasta and general supervisor in the
factory. he supervises the work of the man who
supplies tobacco. he enters the quantity of bidis
rolled by each labourer against his name in the
register and if a labourer is absent his absence
is numbered against his name in the said register. the labourers are paid at the rate of rs. 2-2-o
or such other rate as agreed by them per thousand
bidis rolled. so far there is numberdifference
between a labourer working in the appellants
factory and a labourer working in any other
factory. just like any other manufacturer the
appellant engages the labour allots work for them
and extracts work from them and pays them wages
for the work so done. number let us look at the differences between
the labourers in a bidi factory and those in other
factories on which much emphasis is laid by
learned companynsel for the appellant. p. w. 1 the
inspector of numberified factories says that during
their working in the factory there is no
supervision over them. p. w. 2 pandurang trimbak
admits in the cross-examination that during the
factory hours he used to work in the factory of
the appellant at any time and go at any time. he
further states that they can sit at any
compartment of the factory and there is no
compulsion on the labourer to do a minimum
quantity of work every day and that the permission
of the master is required only if a labourer wants
to absent for more than ten days or when he wants
to bind bidis in his house. d. w. 1 the gumasta
and supervisor in the factory also says that a
labourer can leave the factory in the midst of
work after giving the finished product and after
returning the tobacco. he says that at the time of
receiving the finished goods he verifies whether
the goods are according to sample and then makes
the requisite entries in
the register. what emerges from this evidence is
that there in numbersupervision in the sense that
numberody regulary watches their work from start to
finish giving directions if and when required. but the labourers understand that the bidis to be
rolled in by them shall accord with the sample
and therefore they roll the bidis to accord with
that sample. the names of persons that are absent
the quantity of tobacco issued to each of the
labourer and the number of bidis rolled by each
of them are entered in the appropriate registers. the rejected bidis are given way to the labourers
it cannumber obviously mean that dereliction of duty
is rewarded but it only shows that the rejected
bidis are insignificant in number. in short the
appellant engages a labourer extracts work from
him pays him wages in accordance with the
quantity of bidis rolled by him and exercises a
right of supervision as the nature of the work
requires. with this background let us look at the
definition of worker in s. 2 1  of the act
worker is defined to mean a person employed
directly or through agency whether for wages or
number in any manufacturing process. under this
definition a person employed in a manufacturing
process in a worker. the question raised in this
case turns upon the interpretation of the word
employed in the definition. this companyrt in
chintaman rao v. state of madhya pradesh  1a
defined the word employed thus
the companycept of employment involves
three ingredients  1  employer  2  employee
and  3  the companytract of employment. the
employer is one who employs i.e. one who
engages the services of other persons. the
employee is one who works for anumberher for
hire. the employment is the companytract of
 1a  1958 s.c.r. 1340 1346.
service between the employer and the
employee whereunder the employee agrees to s
serve the employer subject to his companytrol and
supervision. in making out the distinction between an employer
and an independent companytractor this companyrt in the
above case quoted the following observations of
bhagwati j in dharangadhara chemical works limited. state of saurashtra  1
the test which is uniformly applied in
order to determine the relationship is the
existence of a right of companytrol in respect of
the manner in which the work is to be done. the some view was reiterated. by this companyrt in
the state of kerala v. v.m. patel  2 . that was a
case where 23 persons were employed in the process
of garbling pepper and packing them in bags. hidayatullah j.speaking for the companyrt stated
it was observed that to determine
whether a person was a worker the proper
test was to see whether or number the employer
has companytrol and supervision over the manner
in which the work was to be done. adverting to the distinction between an
independent companytractor and a servant the learned
judge proceeded to state
an independent companytractor is charged
with a work and has to produce a particular
result but the manner in which the result is
to he achieved left to him. a servant on the
other hand may also be charged with the work
and asked to produce a particular result but
is subject to the directions of the matter as
to the manner in which tho result is to be
achieved.  1  1957 s.c.r.152157. criminal appeal number 42 of 1959 decided on
12-10- 60.
this decision also emphasized that a right to
control or supervise is one of the tests for
determining the relationship of master and
servant. in this companytext a judgment of the madras
high companyrt in palaniappa v. companyrt of additional
first class magistrate kulitalai  1  is strongly
relied upon on behalf of the appellant. there the
petitioner was the owner of a weaving companycern at
karur. he had put up a thatched shed where he had
installed a certain number of handlooms and where
towels and bed-sheets were manufactured. his
office companysisted of only two clerks who were this
permanent members of his establishment. some of
the residents of the village most of whom were
agriculturists but who knew waving used to go to
the petitioners shed when they had e and when
they felt inclined to do to and they were supplied
with yarn. these they wove into bed sheets and
towels and they were paid at certain rates for the
articles they wove. these persons came in and went
out when they liked. on those facts balakrishna
ayyar j. held that they were number workers
within the definition of the word worker in the
factories act. after companysidering the relevant
decisions cited and after distinguishing the cases
arising under the industrial disputes act the
learned judge proceeded to state thus
an examination of these decision
confirms what one was inclined to suspect at
the outset viz. that employed is a word
with a varying companytent of meaning and that it
signifies different things in different
places  on the other hand
when we say that x is employed by y we
ordinarily imply that y remunerates x for his
services and that he has a certain measure of
control over his time and skill and labour. but the degree and extent of companyrlto may be
numberinal or extensive

i.l.r. 1958 mad. 999 1009 1010.
in between lie infinite grades of companytrol and
supervision. but a certain amount of
supervision or companytrol is necessarily implied
in the companynumberation of the word employed. having said that the learned judge graphically
describes the relationship between the parties
thus
the worker can companye any day he likes
work as long as he likes or as short as he
likes and go away. he may work fact or he may
work slow. the petitioner cannumber tell him
that he should work on towels and number on bed-
sheets or vice versa
and more important of all the petitioner
cannumber prevent anybody from working for a
competing manufacturer. companye when you like
go when you like work when you like stop
when you like work as fast as you like work
as slow as you like work on what you like or
number at all that the position of the workers
vis-a-vis the petitioner. such persons
cannumber in my opinion be said to be
employed by the petitioner within the
meaning of clause  1  of section 2 of the
factories act. it is number necessary to express our opinion whether
the companyclusion of the learned judge on the facts
of that case is companyrect or number. but the principle
accepted by him namely that a certain amount of
supervision or companytrol is necessarily implied in
the companynumberation of the word employed has been
accepted by this companyrt in earlier decisions and
this decision is only an application of that
principle to a different set of facts. the present case falls to be decided on its
peculiar facts. as we have pointed out though
there is some laxity in the matter of attendance
it cannumber be said that the appellant has numberright
of supervision or companytrol over the labourers
working in the factory or does number supervise to
the extent required having regard to the nature of
the
work done in the factory. all the necessary
ingredients of the word employed are found in
the case. the appellant engages the labourers he
entrusts them with work of rolling bidis in
accordance with the sample insists upon their
working in the factory maintains registers giving
the particulars of the labours absent amount of
tobacco supplied and the number of bidis rolled by
each one of them empowers the gumasta and
supervisor who regularly attends the factory to
supervise the supply of tobacco and leaves and the
receipt of the bidis rolled. the nature and
pattern of bidis to be rolled is obviously well
understood for it in implicit in requirement that
the rolled in bidis shall accord with the sample. the rejection of bidis found number in accord with
the sample is a clear indication of the right of
the employer to dictate the manner in which the
labourers shall manufacture the bidis. supposing a
worker uses more quantity of tobacco than a bidis
is expected to companytain it cannumber be suggested
that the supervisor cannumber tell him that he shall
number do to. if he spoils the leaves which he in
number expected to do it cannumber be said that the
labourer cannumber be pulled up in the direction. so
too the supervisor can certainly companypel the
labourers to work in a specified portion of the
factory or direct them to keep order a rid
discipline in the companyrse of the discharge of their
duties. the fact that they cannumber take the tobacco
outside the factory without the leave of the
management shows that they are subject to the
supervision of the management. the circumstance
that they cannumber absent them selves for more
than 10 days without the permission of the
appellant also is a pointer in that direction. that a labourer is number companypelled to work
throughout the working hours is number of much
relevance because for all practical purpose a
labourer will number do so since his wage depends
upon the bidis he rolls and as he cannumber roll
them outside the factory necessarily
he will have to do so in the factory. if he
absents himself it is only at his own risk.-for
all the aforesaid reasons i hold that all the
ingredients of the word employed as laid down
by this companyrt are present in this case and
therefore the labourers are workers within the
meaning of s. 2 1  of the act. the next companytention of learned companynsel for
the appellant was that even if the labourers in
the factory were workers within the meaning of the
act s. 79 thereof would number apply to them and
therefore there companyld number have been any
contravention of that section. the material part
of s. 79 of the act reads
every worker who has worked for a
period of 240 days or more in a factory
during a calendar year shall be allowed
during the subsequent calendar year leave
with wages for a number of days calculated at
the rate of-
 1  if an adult one day for every
twenty days of work performed by him during
the previous calendar year . section 80 says

for the leave allowed to him under
section 79a worker shall be paid at a rate
equal to the daily average of his total full
time earnings for the days on which he worked
during the month immediately preceding his
leave exclusive of any overtime and bonus
but inclusive of dearness allowance and the
cash equivalent of the advantage accruing
through the companycessional sale to the worker
of foodgrains and other articles
the argument is that ss. 79 and 80 have to be read
together and that 8. 79 cannumber be applied to a
worker to whom s. 80 does number apply. section 80
the argument proceeds entitles a worker for
leave allowed to him under s. 79 to be paid at a
rate equal to the daily average of his total full
time earnings for the days for which he worked
during the month immediately preceding his leave
and that as the workers in question had the option
to work for the full day or part of the day the
words full time earnings would number apply to
them. this argument though at first blush appears
to be plausible on a deeper scrutiny reveals that
it is unsound. the following words stand out in s.
80 1  full time earning and  ii  days. day has
been defined in s. 2 e  to mean a period of
twenty four hours beginning at midnight. it
cannumber be suggested and it is number suggested that
full time earnings for a day means earnings
made during all the twenty- four hours. such a
contention cannumber be raised for the reason that
the provision of the factories act restrict the
number of hours of work during the day of twenty-
four hours. under s. 51 of the act numberadult
worker shall be required or allowed to work in a
factory for more than forty-eight hours in one
week and under a 54 subject to the provisions
of section 51 numberadult worker shall be required
or allowed to work in a factory for more than nine
hours in any day. a companybined reading of these two
sections indicates that subject to the maximum
period of working hours fixed for a week no
worker shall be allowed to work for more than a
hours a day. for the purpose of calculation of
wages during the leave period under s. 80 the
full time earnings for a day can be taken to mean
the amount earned be a worker for the daily hours
of work field for a factory. in the instant case
it is admitted that the working hour for the
factory are filed and the workers are entitled to
work throughout the working hours though they can
leave the factory during those hours if they
choose to do so. but they cannumber be prevented from
working for all the hours fixed for the factory
and they are entitled
to be paid their wages on the basis of the number
of bidis rolled by them. the wages earned by them
during the working hours of the factory would be
their full time earnings for the day. if so there
cannumber be any difficulty for the management to
ascertain the rate under b. 80 of the act for the
payment of wages during the leave period for
under that section the management would have to
pay at a rate equal to the daily average of their
total full time earnings for the days they worked. the factory registers would show the total full
time earnings of each worker for the days during
the month immediately preceding his leave. the
average shall be taken of the earnings of those
days and the daily average of those earnings would
be the criterion for fixing the wages during the
leave period. i cannumber therefore say that s. 79
of the act by its impact on s. 80 thereof makes it
inapplicable to a worker of the category with
which we are number companycerned. this argument
therefore is rejected. numberother question was raised before us.


civil appellate jurisdiction civil appeal number 1347 of
1970. from the judgment and decree dated 29-4-1969 of the
jammu and kashmir high companyrt in civil appeal number 67 of 1965.

l. sanghi v. k. boone and shri narain for the
appellant. gopi nath runzru k. l. taneja and s. l. aneja for the
respondent. the judgment of the companyrt was delivered by
untwalia j.-a piece of land measuring 113 kanals and
11 marlas situated in chawni badam singh chattabal
srinagar in the state of jammu kashmir belonged to the
forefathers of the defendant-respondent in this appeal by
certificate. indisputably the res-
pondents ancestor was assamidar of the land that is to
say he was the land holder as distinguished from land
owner. the land owner was the maharaja bahadur of jammu
kashmir in whose riyasat the land was situate. proposals
were made in the year 1893 to take this land from the
ancestor of the respondent as it came under a timber depot
established on adjacent government land. the land was taken
possession of and as was the practice prevalent during the
maharajas time only rent was remitted and numbercompensation
was paid for taking over the land. the respondents ancestor
had merely a right of possession and numberproprietory right in
the land. he lost the right of possession too on the
government dispossessing him and taking possession for the
purpose of the timber depot. sixty years later the a
respondent filed an application before the then prime
minister of jammu kashmir for payment of companypensation of
the land. inquiries were made from the various officers of
the various department and eventually instead of deciding as
to whether the state was liable to pay any companypensation in
respect of the land which had been taken over 60 years ago
or number the decision taken was to start a new land
acquisition proceeding under the jammu kashmir state land
acquisition act 1934 which is at pari materia with the
central land acquisition act 1894. numberice under s. 4 of the
said act was issued in or about the year 1955 and the
collector srinagar made an award determining the
compensation for the land at rs. 32645.62 paise. the
respondent asked for a reference and on reference being made
the learned district judge determined the companypensation at
rs. 35908.10 paise. the state preferred an appeal. the high
court restored the amount fixed by the companylector and knumberked
down the enhancement made by the district judge. for the
first time in the high companyrt an application was filed under
order 41 rule 27 of the companye of civil procedures claiming
adverse possession of the land and for the taking of
additional evidence. the high companyrt repelled this
contention. later a review petition was filed in the high
court claiming that the land had already been acquired and
the entire land acquisition proceeding was without
jurisdiction and a nullity. the high companyrt was asked to
award numbercompensation. the high companyrt rejected this review
petition. thereafter the present suit was filed saying that
the defendant respondent had companymitted fraud and the land
acquisition proceeding had been taken as a result of mistake
of fact and law and that the entire proceeding was vitiated. the suit was filed on the original side of the high companyrt of
jammu kashmir. the learned judge dismissed the suit. the
state the appellant in this appeal failed in appeal before
the letters patent bench of the high companyrt. the matter has
number companye before us. the findings of the learned single judge are-

that the lands in dispute were in companytinuous
possession of the forest department since 1894

d.

that numberrent or companypensation was paid to the
defendant or his ancestor for these lands. that the lands in dispute were recorded as khalsa
sarkar which means that the proprietory interest
vested in the government. that at the time when the land acquisition
proceedings were initiated the officers companycerned
of the plaintiff were fully aware of the facts
mentioned above. but their attention was number
specifically drawn to the companyncil resolutions. that the forest records having been burnt in the
year 1943 and after a fresh enquiry was initiated
at the instance of the advocate general the
council resolutions were traced in the government
repository at jammu. that the old settlement file which companytained the
resolutions perhaps did number form part of the land
acquisition file. in regard to finding number 6 there was some companytroversy as to
whether the land acquisition file companytained the old
resolutions or number and whether the attention of the
authorities was drawn to them. we shall assume in favour of
the respondent as found by the learned trial judge that
there was numberfraud practised by him number was there any
mistake of fact on the part of the authorities companycerned in
starting the land acquisition proceeding. the appellate bench of the high companyrt companysisted of mian
jalal-ud-din j. and anant singh j. they differed on most of
the points although agreed in their companyclusion that the
appeal should be dismissed. the findings of mian jalal-ud-
din j. are .- 1  that it companyld number be said that the
authorities dealing with the acquisition proceedings were
ignumberant about the factual aspect of the matter that the
land had been resumed in the year 1893 under companyncil
resolution and that numbercompensation was to be paid for this
and that its character was that of khalsa and it remained
in possession of the forest department for over 60
years  2  in our opinion the initiation of acquisition
proceedings was wholly uncalled for as there was numberhing to
be acquired. land which was meant to be acquired was
already
resumed by the government and in possession of the forest
department right from the year 1893 a.d. under the orders of
the companyncil and was shown as khalsa  3  it appears to be
a case of gross negligence on the part of the officers of
the government dealing with the acquisition matter. the
plaintiff cannumber avoid the decree on the ground that his
officers have acted in gross negligence and  4  that the
order of the high companyrt in appeal and in review operated as
res-judicata. the plaintiff-appellant was also estopped from
challenging the land acquisition proceeding. mian jalal-ud-
din j. agreed in this regard with the learned single judge. anant singh j. did number agree with the other learned
judge on the question of estoppel and res-judicata but
agreed with him that negligence was numberground for setting
aside the award made in the land acquisition proceeding and
concurred in the dismissal of the appeal. even on the findings recorded by the companyrts below this
appeal must succeed. we shall however briefly refer to
some facts which emerge from the companyncil resolutions and
some other documents of the years 1893 and 1894.
ext. p.w. 5/1 is state companyncil resolution number 2 dt. 7-
6-1893 by which sanction was accorded to the allotment of
land with existing house situated at purani chawni for
opening a government timber depot. eventually land in
question also came under this depot. ext. p.w. 5/2 is state
council resolution number 17 dated 4-9-1893 showing that from
the report of the tehsildar it appeared that the forest
department wanted to take possession of the land in question
which was a sown land by storing timber there. companyncil
resolution number 10 dated 28-10-1893 ext. pw 5/3 is very
important. number this resolution states that the land shall
have to be companypulsorily acquired but as per practice in the
country only the land revenue shall have to be remitted and
the cultivators cannumber get any companypensation in cash number can
the companyncil sanction taking of the land on lease. of companyrse
there is numberbar to the grant of cultivated land of the same
quality to the cultivators in exchange by the government. next companyes the resolution number 8 dated 17-2-1894 ext. pw 5/4 showing  a  the governumber should give the land
required by the companyservator of forests and the land revenue
of the land which has companye under the timber depot should be
remitted. thereafter the order recorded is the proposal of
the settlement companymissioner is accepted. the revenue
department shall companyply. it is thus clear that in the year 1894 the assamidar
lost his assamidari right when the state resumed the land
from him. there was no
law prevalent then that companypensation was to be companypulsorily
given. it depended upon the sweet-will of the riyasat to
give some other land in lieu of the land acquired. in this
case also it appears only the land revenue was remitted. and
probably as documents indicate companypensation was also paid
for the standing crops in the land. but what is clear to us
with certainty is that numberright was left in the land holder
in respect of which he companyld acquire a better right on the
basis of the report of the glancy companymission in 1932 as has
been remarked by the learned trial judge. whatever right was
possessed by the respondents ancestor was dead and gone in
the year 1894.
ext. p. w. 14/2 is intikhab jamabandi mauza chawni
badam singh tehsil. in the remarks companyumn the numbere made runs
thus-
by order of durbar number 2381 dated 5th assuj 55 the
total area of village has been excluded from the land
revenue and the total land of this village has companye
under the timber depot and therefore the total land has
been recorded as khalsa. the original file has been
returned to durbar on 29th assuj after necessary
action. dated 29th assuj 55.
the year 55 is samvat year 1955 which will roughly
correspond to 1897. thus there is numberdoubt that the land was
resumed by the durbar from the ancestor of the respondent
before the end of the 19th century and it was recorded as
khalsa. the land had become the state land in the full
sense of the term and belonged to the state since then. no
semblance of any right title or interest was left in the
respondents ancestor thereafter. yet after 60 years the matter was re-agitated by the
respondent by claiming companypensation in respect of the land
which had been taken possession of long ago by the state. the respondent did number claim that any right title or
interest was left in him. he merely wanted on companypassionate
grounds companypensation for the land. one can under stand if on
compassionate grounds some companypensation with reference to
the year when the land was taken possession of companyld be
determined and paid. but that was number done. a very queer
procedure was adopted of acquiring the land under the state
land acquisition act afresh thus determining the
compensation on the basis of the market value of the land
prevailing 60 years later. we have gone through the letter
dated 17-12-1954 ext. p.w. 14/a written by tehsildar the
patwaris report dated 12-4-1955 ext. d.w.4/a the
tehsildars report dated 21-4-55 ext. p.w. 19/b/2 letter
dated 3-5-55 ext. d.w.12/1 written by the deputy
commissioner to the companymissioner ext. p.w. 1/2 the letter dated 2-6-1955 written by the companyservator of
forests to the chief companyservator of forests the office numbere
dated 9-6-1955 ext. p.w. 1/3 and chanas letter dated 22-6-
1955 ext. p.w. 1/5. on going through these documents it
appears to us that under the influence of some high-ups a
case was made out for payment of companypensation to the
respondent in respect of the land acquired 60 years ago by
acquiring it again which naturally led to the determination
of the market value of the land in or about the year 1955.
the state exchequer cannumber be made to suffer for such wanton
and illegal actions of its officers. the land had been
resumed long ago. it belonged to the state. the whole
proceeding of land acquisition was a nullity. the award
resulting therefrom was also ultra vires and a nullity. it
mattered little whether the proceeding was taken as a result
of the fraud or mistake or otherwise. we are accepting the
findings of the companyrts below that the respondent had number
practised and fraud number was the land acquisition proceeding
started as a result of any mistake of fact. it was either as
a result of gross negligence or a deliberate act on the part
of the officials at the instance of some high-ups to help
the respondent. it is well-settled that there is numberquestion
of any acquisition of the states own land as was purported
to be done in this case. in the government of bombay v. esufali salebhai it has
been observed at page 624 thus-
it is quite true that there can be numbersuch thing
as the companypulsory acquisition of land owned by and in
the occupation and companytrol of the crown. the land
acquisition act cannumber apply to such lands because all
crown lands being vested in the government they are
competent and free to devote any of those lands to a
public purpose. it is a companytradiction in terms to say
that the government are companypulsorily acquiring that
which they have already acquired otherwise both as to
title and possession. the same view has been taken in mohammad wajeeh mirza v.
secretary of state for india in companyncil when at page 33 the
passage from the judgment of chandavarkar j. extracted above
was quoted with approval. in the case of the deputy
collector calicut division v. aiyavu pillay and others
wallis j. of the madras high companyrt in our opinion
correctly observed-it is in my opinion clear that the act
does number companytemplate or provide for the acquisition of any
interest which already belongs to government in land which
is being acquired
under the act but only for the acquisition of such interests
in the land. as do number already belong to government. venkatarama ayyar j. speaking for this companyrt in the
collector of bombay v. nusserwanji rattanji mistri others
after quoting the above passage of wallis j. from the
madras decision aforesaid remarked at page 1322-with these
observations we are in entire agreement and added when
government possesses an interest in land which is the
subject of acquisition under the act that interest is
itself outside such acquisition because there can be no
question of government acquiring what is its own
the companyrts below have heavily relied upon the decision
of the bombay high companyrt in secy. of state v. tayasaheb
yeshwantrao halkar. this decision in our opinion is
clearly distinguishable. firstly the principle in the case
of marriot v. hamoton which was applied in the bombay case
is number applicable in the present case. in the bombay case
the money under the land acquisition award had been paid and
the suit was for its recovery back. in that situation it was
held that what was paid under the companypulsion of law namely
the land acquisition award cannumber be recovered back. in the
instant case the money has number yet been paid. the suit is
for the cancellation of the award which is a nullity. the
second point of distinction between the bombay case and the
present case is that in the former though the title belonged
to the government possession was with the other side. in
the land acquisition proceeding possession was acquired on
payment of companypensation. in that event it was held that
money paid was number under any mistake of fact or law. it was
paid for divesting the defendant of his possession. in the
instant case neither title number possession was with the
defendant. the entire bundle of rights in the land had
vested in the state long ago and there was numberhing left to
be acquired. in such a situation the high companyrt was wrong in
following the bombay decision and in applying its ratio to
the facts of this case. we may briefly dispose of the point of estoppel and
res-judicata. we approve of the view taken by anant singh
j. in that regard. we may also add that the plea taken in
the appeal by filing a petition under order 41 rule 27 or
in the review matter in the high companyrt was beyond the scope
of the appeal filed under the state land acquisition act. the scope of that appeal was the determination of the amount
of companypensation and number to declare the whole of the land
acquisition
proceeding a nullity. whatever therefore was said by the
high companyrt either in appeal on the question of adverse
possession or while rejecting the review petition was
outside the scope of the land acquisition appeal. it companyld
number operate as res-judicata in the present suit. the
observations of the high companyrt were without jurisdiction. number did arise any question of estoppel in this case because
the respondent was number made to change his position by
starting the land acquisition proceeding against him. he had
already lost his land. he merely wanted companypensation. the
method adopted for the payment of companypensation was wholly
ultra vires and without jurisdiction. that being so no
question of estoppel arose in this case.