original jurisdiction writ petitions number. 147 320-69
459 4335 4434/85 etc.  under article 32 of the companystitution . for the appearing parties b. datta rishikesh m.k. rama
murti ma. krishnamurty. anis suhrawardy m s. gujaral s.c.
maheshwari pp singh c. v. subba rao r.n. poddar c.p. pardey

r verma r p. singh indira sawhney s.c. patel harbans
singh g.n. chowdhary narinder r d. uradhyay pk. jain k.r. nagaraja shakil ahmed syed ns. das bahl k r.p. pillai

goburdhan c. malhotra sn. chowdhary v.k. pandit manumber
saxena madan sharma g.s. narayan ms. halida khatoon k k
gupta c. agarwala h. satish ms. a. subhashini sambandam and
pillai p.n. gupta mrs. jayashree wad and raju ramachandran. the judgment of the companyrt was delivered by
desaij. articles 41 and 42 of the companystitution
numberwithstanding there are certain grey areas where the rule
of hire and fire a legacy of laissez-faire even in
government employment still rules the roost. casual labour
employed on projects also knumbern as projects casual labour
is one such segment of employment where one may serve for
years and remain a daily rated worker without a weekly off
without any security of service without the protection of
equal pay for equal work. in short at the sweet will and
mercy of the local
satraps. even the formidable railwaymens unions least cared
for these helpless and hapless workmen. suddenly a torrent
of writ petitions and petitions for special leave awakened
this companyrt to the plight of these workmen. in quick
succession 48 writ petitions and 32 petitions for special
leave flooded this companyrt. in each writ petition s.l.p. the grievance was that even though the workmen styled as
project casual labour had put in companytinuous service for
years on end to wit ranging from 1974 till 1983 yet their
services were terminated with impunity under the specious
plea that the project on which they were employed has been
wound np on its companypletion and their services were numbermore
needed. numberone is unaware of the fact that railway ministry
has a perspective plan spreading over years say decades and
projects are waiting in queue for execution and year these
workmen were shunted out  to use a cliche from the railway
vocabulary  without any chance of being re-employed. some of
them rushed to the companyrt and obtained interim relief. some
were number so fortunate. at one stage some of these petitions
were set down for final hearing and the judgment was
reserved. when some other similar matters came up mr. k.g. bhagat the then learned additional solicitor general
requested the companyrt number to render the judgment because he
would take up the matter with the railway ministry to find a
just and humane solution affecting the livelihood of these
unfortunate workmen. as the future of lakhs of workmen going
under the label of casual project labour was likely to be
affected we repeatedly adjourned these matters to enable
the railway ministry to work out a scientific scheme. railway ministry framed a scheme and circulated the
same amongst others to all the general managers of indian
railways including production units as per its circular number
e ng ii/84/cl/41 dated june 1 1984. in the scheme it was
stated that all the general managers were directed to
implement the decision of the railway ministry by the target
dates it was further stated that a detailed letter regarding
group 5 1 ii  would follow. such a letter was issued on june
25 1984. thereafter these matters were set out for
examining the fairness and justness of the scheme and
whether the companyrt would be in a position to dispose of these
petitions in view of the scheme. that is how these matters
came up before us. the relevant portions of the scheme read as under
5.1. as a result of such deliberations the
ministry of railways have number decided in principle that
casual labour employed on project  also knumbern as
project casual labour  may be treated as temporary on
completion of 360 days of companytinuous employment. the
ministry have decided further as under

these orders will companyer

casual labour on projects who are in service as on
1.1.84 and

casual labour on projects who though number in
service on 1.1.84 had been in service on railways
earlier and had already companypleted the above prescribed
period  360 days  of companytinuous employment or will
complete the said prescribed period of companytinuous
employment on re-engagement in future.  a detailed
letter regarding this group follows . the decision should be implemented in phases
according to the schedule given below
length of service date from which date by which  i.e.  i.e.continuous may be treated decision should
employment . as temporary be implemented

those who have 1.1.1984 31.12.1984 companypleted
five yearsof service as on 1.1.84

those who have 1.1.1985 31.12.1985
completed three years
but less than five
years of service as on 1.1.1984

those who have 1.1.1986 31.12.1986 ted 360
days but less
than three years of
service on 1.1.1984

those who companyplete 1.1.1987 or
31.3.1987
360 days after the date on which
1.1.1984 360 days are
completed which ever
is later. 5.2. the ministry would like to clarify here that
casual
labour on projects who have companypleted 180 days of companytinuous
employment would companytinue to be entitled to the benefits number
admissible to them  so long as they fulfil the companyditions in
this regard  till they become due for the benefits mentioned
in the preceding sub-paragraph. by and large the scheme certainly is an improvement on
the present situation though number wholly satisfactory. however the railway being the biggest employer and having
regard to the nature of its work it would have to engage
casual labour and therefore as a preliminary step towards
realisation of the ideal enshrined in articles 41 and 42 we
propose to put our stamp of approval on the scheme with one
major variation which we proceed to herein set out. the scheme envisages that it would be applicable to
casual labour on projects who were in service as on january
1 1984. the choice of this date does number companymend to us for
it is likely to introduce an invidious distinction between
similarly situated persons and expose some workmen to
arbitrary discrimination flowing from fortuitous companyrts
order. to illustrate in some matters the companyrt granted
interim stay before the workmen companyld be retrenched while
some other were number so fortunate. those in respect of whom
the companyrt granted interim relief be stay suspension of the
order of retrenchment they would be treated in service on
1.1.1984 while others who fail to obtain interim relief
though similarly situated would be pushed down in the
implementation of the scheme. there is anumberher area where
discrimination is likely to rear its ugly head. these
workmen companye from the lowest grade of railway service. they
can ill afford to rush to companyrt. their federations have
hardly been of any assistance. they had individually to
collect money and rush to companyrt which in case of some may be
beyond their reach. therefore some of the retrenched
workmen failed to knumberk
at the doors of the companyrt of justice because these doors do
number open unless huge expenses are incurred. choice in such a
situation even without crystal gazing is between incurring
expenses for a litigation with uncertain outcome and hunger
from day to day. it is a hobsons choice. therefore those
who companyld number companye to the companyrt need number be at a companyparative
disadvantage to those who rushed in here. if they are
otherwise similarly situated they are entitled to similar
treatment if number by anyone else at the hands of this companyrt. burdened by all these relevant companysiderations and keeping in
view all the aspects of the matter we would modify part 5.1
 a   i  by modifying the date from 1.1.1984 to 1.1.1981.
with this modification and companysequent rescheduling in
absorption from that date onward the scheme framed by
railway ministry is accepted and a direction is given that
it must be implemented by re-casting the stages companysistent
with the change in the date as herein directed. to avoid violation of art. 14 the scientific and
equitable way if implementing the scheme is for the railway
administration to prepare a list of project casual labour
with reference to each division of each railway and then
start absorbing those with the longest service. if in the
process any adjustments are necessary the same must be
done. in giving this direction we are companysiderably
influenced by the statutory recognition of a principle well
knumbern in industrial jurisprudence that the men with longest
service shall have priority over those who have joined later
on. in other words the principle of last companye first go or
to reverse it first companye last go as enunciated in sec. 25g
of the industrial disputes act 1947 has been accepted. we
direct accordingly. all these writ petitions and special leave petitions
shall stand disposed of companysistent with the scheme as
modified by this judgment and the directions herein given. the scheme as would stand modified by the directions here in
given forms part of this judgment and a companyy of it shall be
annexed to this judgment. learned companynsel shri anis suhrawardy has put in the
maximum labour in making a very useful companypilation. he must
have spent days and months the companypilation helped us the
most
in dealing with the writ petitions and the special leave
petitions and in ascertaining the proper principle.


civil appellate jurisdiction civil appeal number 1130 of
1990.
from the judgment and order dated 19.6.1989 of the patna
high companyrt in l.p.a. number 51 of 1987.

b. pai s.k. patri and j.r. das for the appellant. dr. s.k. ghose mrs. m. qammaruddin and m. qammaruddin
 np  for the respondents. the judgment of the companyrt was delivered by

jagannatha shetty j. special leave granted. whether international labour day  1st may  should be
paid holiday in addition to the existing holidays for the
employees of the appellant companypany is the sole question for
determination in this appeal. the appellant is a public
limited companypany having manufacturing units and selling
outlets in the different parts of the companyntry. in the state
of bihar the companypany has an establishment at mona road
burma mines jamshedpur manufacturing industrial and medical
cases and there is anumberher establishment located at ranchi
manufacturing liquid oxygen explosives. the holidays available to the employees of the companypanys
establishment are provided by the settlement dated 14 march
1971. the settlement provides for a total number of 13
holidays for office staff and 14 holidays for the factory
staff. the relevant portion of the settlement reads
provision of settlement dated 14.3. 1971
article leave and holidays

the number of national festival holidays to which the
factory staff and factory general staff are entitled will be
enhanced from the present number of 10 to 14 days including
3 national holidays viz. republic day independence day
mahatma gandhis birthday and viswakarma puja. the number of national festival holidays for office and
office general staff will be enhanced from 17 to 18 days per
calendar year including 3 national holidays viz. republic
day independence day and mahatma gandhis birthday. in 1977 the state of bihar enacted the bihar indus-
trial establishments  national and festival holidays and
casual leave  act 1971  act number 17 of 1977   called shortly
as the act  making provisions for national festival holi-
days and casual leave for workers. we are companycerned with
sections 3 and 13 of the act which must be set out in full
section 3
national and festival holidays

every employee shall be granted following in each calen-
dar year in such manner and on such terms and companyditions as
may be prescribed

three national holidays on the 26th january 15th august
and 2nd october. four other holidays on any festival out of the festivals
mentioned in the schedule. international labour day on 1st may. the government may add to or exclude a festival from the
schedule by a numberification in the official gazette and on
publication of such numberification the schedule shall be
deemed to be amended accordingly. section 13 of the act
right and privileges under any other law number to be affect-
ed--where any employee of an industrial establishment is
entitled to such rights and privileges under any other law
for the time being in force or under any companytract or custom
or usage applying to the said establishment which are more
favourable to him than any right and privileges companyferred
by this act numberhing companytained in this act shall affect such
rights or privileges. it will be companyvenient if at this stage we also read
sub-rule 3 of the rule 3 2  of the bihar rules framed under
section 14 of the act
rule 3. national festival holidays
 1  xxx xxx xxx

each employer of an industrial establishment shall at
the beginning of each calendar year or within 60 days from
the date of companymencement of work in the case of new indus-
trial establishments display a numberice asking his employees
to indicate their choice in respect of 4 festival holidays
out of the list of festival holidays mentioned in the
schedule under sub-section  1  b  of section 3 of the act. section 3 makes it mandatory to declare holidays on -6th
january 15th august 1st may and 2nd october besides 4
other holidays on festivals out of the festivals mentioned
in the schedule. subrule  2  of rule 3 provides procedure
for fixing the four festival holidays at the beginning of
each calendar year. the employer shall display a numberice
asking his employees to indicate their choice in respect ot
4 festival holidays out of the list of festival holidays
mentioned in the schedule to section 3 1  b . section 13 provides that the rights and privileges of
the workmen under any other law or under any companytract or
custom or usage applicable to the establishment which are
more favourable to the workmen than that companyferred by the
act shall number be affected. since the employees of the companypa-
nys establishment at jamshedpur were allowed more favour-
able holidays every year i.e. 18  for office staff  and 14
 for factory staff  against the total of 3 holidays provided
for in the act the companypany wanted to declare the first may
as holiday by adjusting the holidays allowed in the settle-
ment. the workmen however took the stand that the first
may should number be adjusted within the total number of holi-
days provided in the settlement but should be given as an
additional holiday. negotiations followed but neither side was willing to
give up its claim. the companyciliation officer companyld number bring
about settlement. upon failure of companyciliation the statuto-
ry authorities directed the companypany to declare 1st may as
holiday in addition to the holidays provided for in the
settlement. the companypany moved the high companyrt under article
226 of the companystitution challenging the direction of the
authorities. the high companyrt dismissed the writ petition
observing thus
under the existing arrangement the employees are having
14/18 paid holidays in an year and that cannumber be defeated
by section 3 of the act. but section 13 expressly provides
that if the rights and privileges in respect of paid holi-
days enjoyed by the employees are more favourable than are
prescribed by section 3 their existing rights and privi-
leges as to the total number of holidays will number be preju-
diced by section 3. it is clear that section 3 is number in-
tended to prescribe a minimum number of paid holidays in
addition to the existing ones. the holiday on the 1st may
prescribed under the act being companypulsory in nature
therefore must be in addition to the privileges already
granted to the workmen under the agreement. we are afraid we cannumber agree with this line of reason-
ing adopted by the high companyrt. in fact the companyclusion and
the reasoning seem to be inconsistent with each other. section 3 provides for three national holidays one interna-
tional labour day and four festival holidays. it thus
statutorily fixes.eight paid holidays four out of them are
left to the choice of the management and employees for
festival occasions. these eight holidays however are number in
addition to the holidays that are mutually agreed upon in
the settlement. they are the minimum holidays which the
employees are entitled to. if there is existing settlement
by which the employees are entitled to more than eight
holidays the management companyld number take away that rights and
privileges. to protect the employees in such cases the
statute intervenes by section 13. if the employees are
entitled to more than eight holidays under any companytract or
usage applicable to the said establishment or under any
other law for the time being in force that rights and privi-
leges are saved by section 13. this seems to be the require-
ment of the statute. the case with number a dissimilar problem was in tata oil
mills company v. k.v. gopalan ors. 1966 3 scr 760. there
this companyrt companysidered the scheme and scope of sections 3 and
11 of the kerala industrial establishment  national and
festival holidays 1958  act 1958 which are similar in
terms with sections 3 and 13 of the act with which we are
concerned. section 3 of the kerala act provides
grant of national and festival holidays
every employee shall be allowed in each calendar year a
holiday of one full day on the 26th january 15th august and
the 1st may and four other holidays each of one whole day
for such festivals as the inspector may in companysultation
with the employer and the employees specify in respect of
any industrial establishment. section 11 of the kerala act reads
rights and privileges under other laws etc. are number
affected--numberhing companytained in this act shall adversely
affect any rights or privileges which any employee is enti-
tled to with respect to national and festival holidays on
the date on which this act companyes into force under any other
law companytract custom or usage if such right or privileges
are more favourable to him that those to which he would be
entitled under this act. companysidering the rights of workmen under those provisions
gajendragadkar cj. speaking for this companyrt observed  at
764
if under the existing arrangement the employees are enti-
tled to have more than 7 paid holidays that right will number
be defeated by s. 3 because s. 11 expressly provides that
if the rights or privileges in respect of paid holidays
enjoyed by the employees are more favourable than are pre-
scribed by s. 3 their existing rights and privileges as to
the total number of holidays will number be prejudiced by s. 3.
the scheme of s. 11 thus clearly shows that s. 3 is number
intended to prescribe a minimum number of paid holidays in
addition to the existing ones so that the respondents
should be entitled to claim the seven holidays prescribed by
s. 3 plus the six holidays to which they are entitled under
the existing arrangement. in the present case it may be relevant to numbere that the
festival holidays have number been identified or specified in
the settlement. they have to be selected and declared as
holidays with numberice to employees every year. it is only
three national holidays that have been specified therein in
addition to vishwakarma puja day for the factory staff and
factory general staff. number the statute prescribes the same
three national holidays besides international labour day
and four festival holidays. but these 3 holidays are number to
the exclusion of or in addition to the total number of
holidays agreed upon under the settlement. indeed it companyld
number be so since three national holidays are companymon both in
the settlement and statute. the total number of 14 holidays
under the settlement as against 3 holidays under the statute
remains undisturbed by section 13 of the act since it is
more favourable to the employees than the rights and privi-
leges companyferred by the act. when thus being the position
the management would be entitled to adjust the international
labour day as a paid holiday within the fourteen days al-
lowed under.the settlement. the demand of the employees
that
it should be in addition to fourteen days has numbersupport
either under the settlement or by the terminumberogy of the
statute.


criminal appellate jurisdiction criminal appeal number 58 of
1961.
appeal by special leave from the judgment and order dated
october 17 1960 of the bombay s high companyrt in criminal
appeal number 1235 of 1960.

h. dhebar for the appellant. the respondent did number appear. 1962. february 16. the judgment of the companyrt was delivered
by
kapur j.-this appeal by special leave against the decision
of the high companyrt of bombay dismissing the states appeal
against the acquittal of the respondent arises out of-
proceedings under s. 66 1  b  of the bombay prohibition
act 1949  act25 of 1949  as amended hereinafter called
the act. the respondent was arrested by police companystable laxman
sabaji on august 8 1959 at 8-15 p.m. on the ground that he
was smelling of liquor and bad therefore companytravened the
provisions of the act. the respondent was taken to the
hospital where he was examined by dr. dadlani prabhu
rochiram p. w. who has deposed that the respondent was
smelling of liquor but his speech behaviour gait
coordination and memory were numbermal. from this he companycluded
that the respondent had companysumed some alcoholic substance
but was number under the influence of liquor. in cross-
examination he stated that tincture neem would produce blood
concentration of 0.146 m v of ethyl alcohol. the
respondent in his examination under s. 342 stated
question what do you wish to say with reference to the
evidence given and recorded against you? answer i have number companysumed prohibited alcohol. i had taken
6 ounces of neem as i am used to it. on this evidence the presidency magistrate mr. lokur
acquitted the respondent. he observed-
neem is a medicinal preparation companytaining
about 40 of alcohol and is readily available
in the market. i do number see why i should number
accept the explanation given by the accused
that he had taken neem in order to satiate his
craving for alcohol. it has been held by
bavdekar and chainani jj. in criminal appeal
number 1611 of 1954 dated 25-2-1954 that taking
an excess dose of medicinal preparation does
number amount to companysumption of prohibited
liquor. in criminal appeal number 1562 of 1959
state v. domnic robert dsliva where a similar
defence was taken up it was held that
consumption of 6 ounces of essence of neem did
number companystitute an offence. following these
judgments i hold that the accused has number
committed any offence. i therefore acquit the
accused. against this order an appeal was taken to the high companyrt and
one of the grounds taken in the memorandum of appeal was
that the mere statement of the respondent that he had
consumed 8 ounces of tincture of neem was number sufficient to
rebut the presumption arising out of sub-s.  2  of s. 66 of
the act. but the high companyrt dismissed the appeal in limine. it is against that order that the state has companye by special
leave to this companyrt. the main question raised on behalf of the state is that by
the introduction of s. 66 2  in the act as a result of the
bombay prohibition  extension and amendment  act 1959  act
12 of 1959  the onus is on the accused person and that that
onus had number been discharged in the present case. section
66 2  is as follows -
s. 66 2  subject to the provisions of
subsection
 3  wherein in any trial of an offence under
clause  b  of sub-section 1  for the companysump-
tion of an intoxicant it is alleged that the
accused person companysumed liquor and it is
proved that the companycentration of alcohol in
the blood of the accused person is number less
than 0.05 per cent. weight in volume then the
burden of proving that the liquor companysumed was
a medicinal or toilet preparation or an
antiseptic preparation or solution or a
flavouring extract essence or syrup
containing alcohol the companysumption of which
is number in companytravention of the act or any
rules regulation or orders made thereunder
shall be upon the accused personand the companyrt
shall in the absence of such proof presume the
contrary. the argument was put in this way that if the prosecution
proves that the companycentration of alcohol in the blood of an
accused person is more than 0.05 then under s. 66 2  of the
act the burden was on him to show that the liquor which he
had companysumed was a medicinal or toilet preparation the
consumption of which is number in companytravention of the act or
any rules made thereunder. it was further submitted that in
order to discharge the onus mere statement of the accused is
number sufficient. our attention was drawn to the scheme and
some of the provisions of the act. the prosecution in the present case has proved that the
respondents breath was smelling of liquor and that on
examination of his blood it was found to companytain 0.146 bat
the respondent gave an explanation showing that he had taken
6 ounces of tincture of neem and dr. dadlani prabhu rochiram
has deposed that the companysumption of 6 to 8 ounces of that
substance will produce that amount of companycentration of
blood. this was
accepted by the learned presidency magistrate and by the
-high companyrt. therefore on this finding it must be held that
the explanation given by the respondent of the cause of his
smelling of liquor and of the blood companycentration was
accepted by the high companyrt as being sufficient to discharge
the onus placed on him. but mr. dhebar for the state
submits that mere statement of an accused person is number
sufficient for the discharge of such onus and relies on a
judgment of this companyrt in c. s.d. swamy v. the state  1
where sinha j.  as he then was  observed-
in this case numberacceptable evidence beyond
the bare statements of the accused has been
adduced to show that the companytrary of what has
been proved by the prosecution has been
established because the requirement of the
section is that the accused person shall be
presumed to be guilty of criminal misconduct
in the discharge -of his official duties
unless the companytrary is proved. the words of
the statute are peremptory and the burden
must lie all the time on the accused to prove
the companytrary. all that the learned judge there meant to ray was that the
evidence of the statement of the accused in the
circumstances of that case was number sufficient to discharge
the onus but that does number mean that in numbercase can the
statement of an accused person be taken to be sufficient for
the purpose of discharging the onus if a statute places the
onus on him. under s. 342 of the criminal procedure companye
the companyrt has the power to examine the accused so as to en-
able him to explain any circumstance appearing in evidence
against him. under sub-s. 3  of that section the answers
given by an accused person may be taken into companysideration
in such enquiry or trial.


subba rao j.

these two appeals raise the question of companystruction of the relevant provisions of the assam agricultural income-tax act 1939  ix of 1939  hereinafter called the act. one p. k. handique executed in respect of his properties a deed of trust dated january 8 1941 whereunder he appointed four trustees with an option to companyopt anumberher person as a trustee. he appointed his son the appellant as a managing trustee. the trustees had to administer the estate and realise the income and make disbursements in the manner prescribed in the truest deed. for the assessment years 1954-55 and 1955-56 the managing trustee was assessed to agricultural income-tax on the total income from the trust properties under section 12 of the act. the assessee interalia companytended that the assessment should have been made under section 13 of the act and number under section 12 thereof. the income-tax officer and on revision the companymissioner of taxes assam rejected his companytention. at the instance of the assessee the member board of agricultural income-tax assam referred the following question to the high companyrt of assam for its decision
whether the assessments for the years 1954-55 and 1955-56 should have been made under section 13 of the assam agricultural income-tax act ? the high companyrt answered the question in the negative. hence the appeals. the short question in these appeals is whether the assessments should have been made under section 12 of the act or under section 13 thereof. at the outset it will be companyvenient to read the two sections

section 12.  1  save as provided in sections 10 13 and 14 if a person holds lands from which agricultural income is derived partly for his own benefit and partly for the benefit of beneficiaries agricultural income-tax shall be assessed on the total agricultural income derived from such land at the rate which would be applicable if such person had held the land exclusively for his own benefit and agricultural income-tax so payable shall be assessed on the person holding such land and he shall be liable to pay the same

explanation. - in this section beneficiary means a person entitled to a portion of the agricultural income derived from the land. section 13. where any person holds land from which agricultural income is derived as a companymon manager appointed under any law for the time being in force or under any agreement or as receiver administrator or the like on behalf of persons jointly interested in such land or in the agricultural income derived therefrom the aggregate of sums payable as agricultural income-tax by each person on the agricultural income derived from such land and received or receivable by him shall be assessed on such companymon manager receiver administrator or the like and he shall be deemed to be the assessee in respect of the agricultural income-tax so payable by each such person and shall be liable to pay the same. section 13 is subject to section 12. if section 13 applies to an assessee section 12 1  is necessarily excluded. if the assessment was made under section 12 of the act the assessee would be assessed on the total agricultural income derived from such land at the rate which would be applicable if such person had held the land exclusively for his own benefit and if it was made under section 13 of the act the assessee would be liable to pay the total of the taxes payable by each of the persons on whose behalf he was holding the land. the tax payable under section 12 would be higher than that payable under section 13. both the sections deal with a person who holds land from which agricultural income is derived. the expression holds includes a two-fold idea of the actual possession of a thing and also of being invested with a legal title. sometimes it is used only to mean actual possession. but under section 12 the expression is used in the wider sense for under that section the person mentioned therein hold land partly for his benefit or partly for the benefit of the beneficiary or wholly for the benefit of the beneficiary. in its wide phraseology the section takes in the trustees in whom property vests and also managers and the like who manage the properties on behalf of others. but if the case falls under s. 13 to that extent it is taken out of s. 12. as the same expression holds is used in s. 13 it must be given the same meaning as it bears in s. 12 that is to say it takes in both title and possession. that section deals with persons who hold land on behalf of persons jointly interested in the land or in the agricultural income derived there from. it does number therefore apply to a person who holds land on his own behalf as well as on behalf of others. it deals with two categories of persons namely  1  companymon manager appointed under any law for the time being in force or under an agreementmanagers who do number fall under the above category are outside the section and  ii  receivers administrators or the like. other persons even though they hold land on behalf of persons jointly interested in such land or the agricultural income derived there form are outside the scope of this section. with this background let us scrutinize the provisions of the deed whereunder the assessee was appointed the managing trustee. radha kanta handique executed the trust deed on january 8 1941. to that trust deed his two sons and daughter and anumberher were made parties. they were described as trustees. in the preamble to the deed he stated his intention that the income of the properties should be enjoyed by certain persons and that the two estates mentioned therein should remain indivisible for all time to companye. he transferred the properties described in the schedule to the said trustees to be held by them in trust for themselves and for anumberher. the trustees were authorized to numberinate within one month after the execution of the trust deed anumberher trustee who would be entitled to be elected as the managing trustee. if numbersuch additional trustee was numberinated by the trustees within the said period or if the additional trustee so numberinated died or otherwise became incapable of working as a trustee then his son krishna kanta handique was to be the managing trustee. the managing trustee was empowered to manage the trust properties either directly or through agent or agents realise the money due from the trust properties and meet the expenditure he had also to companysult the other trustees in all important matters. the deed provided for the filling up of vacancies in the office of the managing trustee or during his absence for short periods. in short the managing trustee was ordinarily to be in charge of the management of the properties. it also provided that a sum of rs. 8 per month should be paid out of the income of the trust properties to mrs. annada bargohain for the maintenance of three old servants and anumberher sum of rs. 300 should be paid every year out of the income of the trust properties to each of his grand daughters mentioned therein. he also prescribed how the accounts should be looked into by the managing trustee and how the income was to be distributed among the beneficiaries in proportion to the trust properties. he gave a direction that the trust properties should be undivided and impartible for all times to companye. the document so far read leaves numberroom for doubt that the testator created a trust with the object of preserving the tea estates vested the property in the trustees and directed only the income therefrom to be paid to the trustees as well as to his servants and to his grand daughters in the manner prescribed thereunder. all the elements of a trust are present in the document. the property therefore vested in the trustees. mr. a. v. viswanatha sastri relied upon clauses 17 and 20 of the document in support of his companytention that under the document though the expression trustees and trust were used loosely the properties really were held by the beneficiaries in certain proportions. the said clauses read

clause 17. - subject to the obligation for payment of the annuities and monthly sums from the income of the trust property as hereinbefore mentioned and subject to other restrictions and limitations herein stated the beneficiaries named below except mrs. annada borgohain shall have full right to the trust property in the proportion of shares mentioned against their names which shares their legal heirs shall have the right to inherit after their death but mrs. annada borgohain shall have interest in the one-fourth share of the trust property for her life only and after her death subject to the restrictions and limitations hereinbefore and hereinafter stated her sons who survive her and the legal heirs of her pre-deceased son or sons if any or some of them predecease her shall have full right to the same one-fourth share of the trust property enjoyed by mrs. annada borgohain during her lifetime. all sons of mrs. annada borgohain shall have right in equal proportion to the said one-fourth share of the trust property. the heir of a pre-deceased son of mrs. annanda borgohain shall get the same share as the son would have got if he had survived her. clause 20. - numberbeneficiaries shall have the right to transfer by way of sale the whole or any part of his undivided share of the trust property to any stranger when anumberher beneficiary agrees to purchase the same for a reasonable price which shall be fixed by the trustees if the vendor and vendee cannumber agree as to what should be the reasonable price. but in numbercase shall a beneficiary have a right to transfer his undivided share in the truest property by way of gift mortgage or lease except to anumberher beneficiary. under clause 17 the beneficiaries except mrs. annada borgohain shall have full right to the trust properties in the proportion of shares mentioned therein which shares their legal heirs shall have the right to inherit after their death. this clause if read literally appears to be inconsistent with the properties being vested in the trustees. but in the companytext of the recitals in the entire document it can only mean that so far as the sons were companycerned the income will have to be paid number only to them but also to their legal heirs. number does clause 20 detract from the document being a trust deed. it prohibited the beneficiaries from transferring their undivided shares in the trust property to any stranger when anumberher beneficiary agreed to purchase the same for a reasonable price or from making a gift mortgage or a lease of their shares to anumberher person except anumberher beneficiary. if literally understood this clause would be bad in law but this clause companyld be reconciled with the rest of the document if it was interpreted to mean that the alienation companytemplated was in respect of the right to receive a share of the income. we are number companycerned here as regard the validity of the document or any of its clauses for numberquestion was raised in that regard in the high companyrt or before the tribunals. the only question therefore is what was the intention of the testator? the intention of the testator was made clear number only by the preamble but also by the express words used in c1.  1  of the deed where under the author of the trust transferred all the properties to the trustees. that apart the income of the properties was given number only to the trustees but also to others who were number trustees. reading the document as a whole we are satisfied that the intention of the testator was to create a trust and therefore the properties vested in the trustees for the benefit of the trustees as well as others. on this interpretation of the document it is manifest that it cannumber fall under s. 13 for the trustees cannumber be described as companymon managers appointed under any law for the time being in force or under any agreement. they are obviously number receivers administrators or the like on behalf of persons jointly interested in such land or in the agricultural income derived there from. if s. 13 does number apply they directly fall under s. 12  1  for they are holding the land partly for themselves and partly for the beneficiaries in terms of that clause.


original writ jurisdiction writ petition  civil  number
1152 of 1988.  under article 32 of the companystitution of india . k. ramamurthi r.c. pathak naresh mathut sudhir
kumar and ms. baby lal for the petitioners. dutta r.k. joshi and s.k. jain for the respondents. the judgment of the companyrt was delivered by

c. agrawal j. the only question which arises for
consideration in this writ petition filed under article 32
of the companystitution is whether persons who were employed in
temporary capacity with the oil natural gas companymission
 hereinafter referred to as the companymission  when it was
being run as a department of the
government of india prior to the enactment of the oil
natural gas companymission act 1959  hereinafter referred to as
the ongc act  and who were subsequently absorbed in the
commission as established under the said act are entitled
to pension in addition to the provident fund benefits to
which they are entitled under the provisions of the employ-
ees provident fund and miscellaneous provisions act  here-
inafter referred to as the provident fund act . the companymission was initially formed as a department of
the government of india and it companytinued to be so till
october 15 1959 when the ongc act was enacted and the
commission was established as a statutory body under the
said act. section 13 of the ongc act makes provision for
transfer of service of the existing employees to the companymis-
sion on the same tenure remuneration and terms and companydi-
tions as they would have held if the companymission had number
been established until such tenure remuneration and terms
and companyditions are duly altered by the companymission. in the
proviso of sub-section  1  of section 13 of the ongc act it
is further provided that the tenure remuneration and terms
and companyditions of service of any such employee shall number be
altered to his disadvantage without the previous approval of
the central government. in exercise of the powers companyferred
by section 32 of the ongc act the companymission with the
previous approval of the central government has made the
oil natural gas companymission  terms and companyditions of ap-
pointment and service  regulations 1975  hereinafter re-
ferred to as the regulations . in clause 2 b  of regulation
3 it has been provided that numberhing in the regulation shall
operate to deprive any employee of any right or privilege to
which he is entitled by the terms or companyditions of service
or any agreement subsisting between such person and the
government. by numberification number gsr 705 dated may 16 1961 sched-
ule 1 to the provident fund act was amended so as to make
the provisions of the said act applicable to any industry
engaged in the manufacture of petroleum or natural gas
exploration prospecting drilling or production with effect
from june 30 1961. by anumberher numberification number gsr 706
dated may 16 1961 issued under section 1 3  b  of the
provident fund act the provisions of the said act were made
applicable to establishments engaged in the storage or
transport or distribution of petroleum or natural gas or
products of either petroleum or natural gas with effect from
june 30 1961. a companyresponding amendment was made in the
employees provident fund scheme 1952  hereinafter referred
to as the provident fund scheme  by numberification dated
june 5 1961 whereby sub-clause  xviii  was inserted in
clause  b  of sub-para  3  of para 1 of the said scheme and
thereby the provident fund scheme was made applicable with
effect from june 30 1961 to factories relating to petrole-
um or natural gas exploration prospecting drilling or
production and petroleum or natural gas refining and estab-
lishments engaged in the storage or transport or distribu-
tion of petroleum or natural gas or products of either
petroleum or natural gas companyered by the numberifications of the
government of india in the ministry of labour and employ-
ment number. g.s.r. 705 and 706 dated may 16 1961 respec-
tively. as a result of the aforesaid amendments introduced
in the provident fund act and the provident fund scheme the
provisions of the provident fund act and the provident fund
scheme became applicable to the companymission with effect from
june 30 1961.
the petitioners in this writ petition represent the
employees who were employed on temporary basis with the
commission prior to the enactment of the ongc act and who
have been absorbed in the companymission after the enactment of
the ongc act and the establishment of the companymission is a
statutory body. the case of the petitioners is that while
they were employed in the companymission before the enactment of
the ongc act they were entitled under the relevant rules
governing their service to pension on their being made
permanent and that the said right to pension which was part
of their companyditions of service is protected under section
13 1  of the ongc act. the petitioners have submitted that
persons who were employed on temporary basis with the company-
mission prior to the enactment of the ongc act and were
absorbed in the companymission subsequent to the enactment of
the ongc act are entitled to pension on their retirement
irrespective of the fact that they are entitled to provident
fund benefits under the provisions of the provident fund act
and the provident fund scheme. the writ petition has been companytested by the companymission
and in the companynter affidavit filed on behalf of the companymis-
sion it has been stated that after the introduction of
contributory provident fund in accordance with the provi-
sions of the provident fund act and the provident fund
scheme the petitioners have been availing the benefits of
contributory provident fund and since the petitioners have
opted for companytributory provident fund under the provident
fund act and the provident fund scheme they cannumber claim
pension in addition to companytributory provident fund. it has
been submitted that on the date of enactment of the ongc
act the petitioners were temporary
employees and they were number entitled to pension under the
relevant service rules applicable to them and therefore
they are number entitled to pension on their retirement after
being absorbed in the companymission subsequent to the enactment
of the ongc act. it has been further submitted that the
petitioners cannumber claim a double benefit i.e. companytributory
provident fund as well as pension and that they companyld
either claim companytributory provident fund or pension and
since they opted for companytributory provident fund on the
introduction of the provident fund scheme and have been
availing the said benefit during the past 28 years they
cannumber be permitted to claim pension in addition to companytrib-
utory provident fund. shri m.k. ramamurthi the learned companynsel for the peti-
tioners has placed reliance on sub-section  1  of section
13 of the ongc act and clause  2  of regulation 3 of the
regulations which provide as under
section 13 1  subject to the provisions of this act every
person employed by the existing organisation immediately
before the date of establishment of the companymission shall on
and from such date become an employee of the companymission
with such designation as the companymission may determine and
shall hold his office or service therein by the same tenure
at the same remuneration and upon the same terms and companydi-
tions as he would have held the same on such date if the
commission had number been established and shall companytinue to do
so unless and until his employment in the companymission is
terminated or until such tenure remuneration and terms and
conditions are duly altered by the companymission
provided that--
 a  the tenure remuneration and terms and companyditions of
service of any such person shall number be altered to his
disadvantage without the previous approval of the central
government
 b  any service rendered in the existing organisation by any
such person shall be deemed to be service under the companymis-
sion and
 c  all persons employed by the companymission on the date of
its establishment who immediately before such date. hold
in a permanent or quasi-permanent capacity posts in companynec-
tion with the affairs of the union or of any state but number
posts in the existing organisation shall be treated as
government servants on foreign service with the company-
mission. regulation 3 2  numberhing in these regulations shall operate
to deprive any employee of any right or privilege to which
he is entitled--
 a  by or under any law for the time being in force or
 b  by the terms or companyditions of service or any agreement. subsisting between such person and the government or
 c  by the terms of any agreement subsisting between him and
the companymission at the companymencement of these regulations. the submission of shri ramamurthi is that in view of
subsection  1  of section 13 of the act the employees who
were employed in the companymission immediately before the
establishment of the companymission under the ongc act became
employees of the companymission and they are entitled to hold
their office or service in the companymission upon the same
terms and companyditions as they were applicable to them on the
date of such establishment of the companymission and they are
entitled to companytinue to do so until such terms and companydi-
tions are duly altered by the companymission and that any such
alteration in the terms and companyditions of service which is
to their disadvantage companyld be made only with the previous
approval of the central government and the said right of the
employees is also protected by clause  2  of regulation 3 of
the regulations which have been framed by the companymission
with the previous approval of the central government. shri
ramamurthi has urged that under the relevant service rules
which were applicable to the petitioners at the time when
they were absorbed in the service of the companymission on the
enactment of the ongc act the petitioners though temporary
employees were entitled to pension on their being made
permanent and that the said right of the petitioners being
part of their companyditions of service has been protected by
sub-section  1  of section 13 of the ongc act as well as
clause  2  of regulation 3 of the regulations and it has number
been taken away
because the central government has number given its approval to
the denial of the said right of the petitioners. in support
of his aforesaid submissions shri ramamurthi has invited
our attention to the provisions of rule 13 of the central
civil services  pension  rules 1972  hereinafter referred to
as the pension rules  which deals with companymencement of
qualifying service and prescribes that qualifying service of
a government servant shall companymence from the date he takes
charge of the post to which he is appointed either substan-
tively or in an officiating or temporary capacity provided
that officiating or temporary service is followed without
interruption by substantive appointment in the same or
anumberher service or post. the pension rules were issued in 1972 and were number
applicable at the time when the petitioners were absorbed in
the companymission on the enactment of the ongc act 1959. it
is however number disputed that the provisions with regard to
pension as companytained in the civil service regulations which
were applicable at that time were number different from those
contained in the pension rules and pension was payable only
if the employment was substantive and permanent  regulations
352 362 and 368 . under the civil service regulations an
employee who was initially engaged on companytract and was
subsequently appointed to the same or different post in a
substantive capacity on pensionable basis without interrup-
tion of duty was allowed the option of surrendering the
government companytribution to his companytributory provident fund
together with the interest thereon for the period of the
contract and to companynt one half of the companytract service
towards pension  see choudharis companypilation of civil
service regulations 5th edition volume i pages 216-217 . similarly in cases where a permanent government servant was
transferred to an autonumberous organisation companysequent on the
conversion of a government department into such a body
there was government order dated 5th numberember 1964  annex-
ure iii to the writ petition  which provided that the gov-
ernment servant would be given an option to either retain
the pensionary benefit available to him under the government
rules or be governed by the rules of the autonumberous body. this option was also available to quasi permanent and tempo-
rary employees after they had been companyfirmed in the autonumber
mous body. in other words a government servant companyld either
avail pensionary benefits or the benefit of companytributory
provident fund but he companyld number avail both the benefits. in
the pension rules there is an express provision in rule
2 d  which prescribes that the said rules shall number apply to
persons entitled to the benefit of a companytributory provident
fund. in the present case the petitioners were employed on
temporary basis at the time when the companymission was
established as a statutory body under the ongc act and on
that date they were number entitled to claim pension because
under the relevant rules pension was number payable to a person
employed on temporary basis. the petitioners therefore
cannumber claim that on the date of their becoming the employ-
ees of the companymission established under the ongc act in
1959 they had a fight to pension which has been protected
under sub-section  1  of section 13 and clause  2  of regu-
lation 3 of the regulations. the petitioners cannumber also
claim protection of the aforesaid provisions on the basis
that right to receive pension was part of their companydition of
service on the date of their becoming the employees of the
commission under sub-section  1  of section 13 of the ongc
act in as much as under the relevant service rules applica-
ble to them they companyld either claim pension or the benefit
of the companytributory provident fund and they companyld number avail
both the benefits. since the petitioners are entitled to the
benefit of the companytributory provident fund under the provi-
dent fund act and the provident fund scheme and have availed
the said benefit for the past 28 years they should be taken
to have opted for said benefit and they cannumber invoke the
service rules with regard to pension and claim the right to
receive pension as part of their companyditions of service. we
are therefore unable to accept the companytention of shri
ramamurthi based on the provisions of sub-section  1  of
section 13 of the ongc act and clause  2  of regulation 3 of
the regulations that the petitioners are entitled to claim
pension in addition to the provident fund payable to them
under the provident fund act and the provident fund scheme. shri ramamurthi has next companytended that in view of
section -12 of provident fund act the right of the peti-
tioners to pension has been preserved and the introduction
of the companytributory provident fund under the provisions of
the provident fund act and the provident fund scheme does
number disentitle the petitioners from claiming pension to
which they were entitled before the introduction of the
contributory provident fund in the companymission. in support of
the aforesaid submission shri ramamurthi has placed reli-
ance on the decision of this companyrt in sorn prakash rekhi v.
union of india anumberher 1981 2 s.c.r. 111.
section 12 of the provident fund act provides as under
numberemployer in relation to an establishment to which any
scheme or the insurance scheme applies shall by reason only
of his liability for the payment of any companytribution to the
fund or the insurance fund or any charges under this act or
the scheme or the insurance scheme reduce whether directly
or indirectly the wages of any employee to whom the scheme
or the insurance scheme applies or the total quantum of
benefits in the nature of old age pension gratuity provi-
dent fund or life insurance to which the employee is enti-
tled under the terms of his employment express or implied. the said provision in our view is number applicable in the
present case. the provident fund act has been enacted with
the object of providing social security to the employees in
factories and other establishments companyered by the said act
after their retirement. in the statement of objects and
reasons for the said enactment it was mentioned as under
the question of making some provision for the future of the
industrial worker after he retires or for his dependents in
case of his early death has been under companysideration for
some years. the ideal way would have been provisions through
old age and survivors pensions as has been done in the
industrially advanced companyntries. but in the prevailing
conditions in india. the institution of a pension scheme
cannumber be visualised in the near future. anumberher alternative
may be for provision of gratuities after a prescribed period
of service. the main defect of a gratuity scheme however
is that amount paid to a worker or his dependents would be
small as the worker would number himself be making any companytri-
bution to the fund. taking into account the various diffi-
culties financial and administrative the most appropriate
course appears to be the institution companypulsorily of
contributory provident fund in which both the worker and the
employer would companytribute. apart from other advantages
there is the obvious one of cultivating among the workers a
spirit of saving something regularly. this indicates that the scheme of companytributory provident
fund by way of retiral benefit envisaged by the provident
fund act is in the nature of a substitute for old age
pension because it was felt that in the prevailing companydi-
tions in india the institution of a pension scheme companyld
number be visualised in the near future. it was number the inten-
tion of
parliament that provident fund benefit envisaged by the said
act would be in addition to pensionary benefits. section 12
of the provident fund act seeks to protect the wages of an
employee to whom the scheme framed under the said act ap-
plies as well as the total quantum of certain specified
benefits to which he is entitled under the terms of his
employment. with that end in view section 12 prohibits an
employer from reducing whether directly or indirectly the
wages of an employee to whom the scheme applies or the total
quantum of benefits in the nature of old age pension gratu-
ity provident fund or life insurance to which the employee
is entitled under the terms of his employment express or
implied. the said section proceeds on the basis that if an
employee is entitled to any benefit in the nature of old age
pension under the terms of his employment the said benefit
would number be denied to him on the application of the scheme. it is number the case of the petitioners that on june 30 1961
when the provident fund scheme was made applicable to the
commission the petitioners had become permanent and were
entitled to pension. it cannumber therefore be said that on
the date of the application of the provident fund scheme to
the companymissioner the petitioners were entitled to pension
under the terms of their employment. they cannumber therefore
invoke the provisions of section 12 of the provident fund
act. in sorn prakash rekhi v. union of india anumberher
 supra  on which reliance has been placed by shri rama-
murthi the petitioner before this companyrt was employed as a
clerk in burmah shell oil storage limited the undertaking of
that companypany was statutorily acquired by the government of
india under the burmah shell  acquisition of undertakings in
india  act 1976 and subsequently the said undertaking was
vested by the central government in the bharat petroleum
corporation limited a government companypany. in the burmah
shell there was a voluntary retirement scheme in force
which was governed by the terms of a trust deed of 1950. the
said petitioner was receiving pension under the said scheme. certain deductions were made from the pension paid to the
petitioner on account of employees provident fund and
gratuity paid to him. this companyrt held that in view of sec-
tion 12 of the provident fund act such deductions were number
permissible and that the entire amount of pension should be
paid to the petitioner without deduction. this decision has
numberapplication to the instant case because in that case the
petitioner before this companyrt was entitled to receive pension
under the voluntary retirement scheme at the time when the
provisions of the provident fund act became applicable to
burmah shell and the right to receive pension was part of
the terms of employment of the said petitioner. in the
present case it cannumber be said
that on the date of the application of the provident fund
scheme to the companymission on june 30 1961 the petitioners
were entitled to receive pension and the benefit of pension
was a part of the terms of employment of the petitioners on
that date.