criminal appellate jurisdiction criminal appeal number 109 of
1960.
appeal by special leave from the judgment and order dated
april 18 1958 of the andhra pradesh high companyrt in
criminal misc. petition number 1421 of 1957.

j. umrigar and t. m. sen for the appellant. the respondent did number appear. 1961. march 8. the judgment of the companyrt was delivered by
mudholkar j.-the state of andhra pradesh has companye up in
appeal against the order passed in revision by the high
court of andhra pradesh quashing the charges framed against
nine persons by mr. syed firasath hussain special judge
vijayawada. the revision petition was preferred by only two
of those persons. the accused number 1 parthasarathi who was a lower division
clerk in the central excise circle office at narasaraopet
was in charge of the tp 1 permit books  transport permit
intended for issue to central excise officers for granting
permits to persons applying bona fide for licences to
transport tobacco. according to the prosecution two of
those books companytaining 25 permit forms each were found
missing from the aforesaid office. the allegation is that
parthasarathi sold those books to the remaining accused for
a companysideration of rs. 400. it was found during the
investigation that seven permit forms from out of these
books bad been used for transport of number-duty paid tobacco
after blanks in those forms had been filled and the signa-
tures of certain central excise officers forged on them. further according to the prosecution accused number. 2 to 8
got authorisation letters prepared with the help of accused
number 9by forging the signatures of the supposed companysignumbers
of the tobacco. with the help of
these documents the accused number. 2 to 8 are said to have
transported tobacco to the licensed premises of certain
persons and received payments for the tobacco delivered to
them. the prosecution alleged that all this was done by all the
accused by entering into a companyspiracy the object of which
was to procure and utilise blank tp 1 forms fill them in
forge the signatures of central excise officers and use them
as genuine for the purpose of transporting tobacco without
paying duty upon it. the charge sheet states that the
accused number. 1 to 9 have companymitted the offence under s. 120
b indian penal companye read with a. 5 2  of prevention of
corruption act 1947  ii of 1947 . it further states that
the accused number 1 had companymitted offenses under s. 5 1  c
and 5 1  d  of prevention of companyruption act 1947 as also
offenses under ss. 420 463 and 464 indian penal companye. the
accused number. 2 to 8 are said to have abetted all these
offenses. each of these accused is in addition said to have
committed offenses under s. 420 indian penal companye. the subordinate judge vijayawada was appointed as special
judge under the provisions of s. 6 of the criminal law
amendment act 1952  ii of 1952  to try offenses under the
prevention of companyruption act 1947. he framed the following
charges
charge number1. that you accused 1 to 9 on or about 19-9-1953
to 5-11-53 agreed to do by illegal means to
wit a-1 being a public servant in the central
excise department dishonestly sold two blank

p. 1 books for rs. 350 to one late jogayya
and obtained pecuniary advantage for himself
and a-2 to a-8 and that a-9 forged 7 t.p. 1
forms out of the above two books which
forged t.p. 1s were used by a-2 a-3 a-5 a-
7 a-8 with the assistance of a-4 and a-6 and
cheated the merchants of markapur and cumbum
by using the said forged t.p. 1s for the above
purpose of cheating and that the above acts
were done by all of you in pursuance of a
conspiracy and that thereby you a-1 have
committed an offence punishable under section
120b of the i.p.c. read with
sec. 5 1  c  and  d  punishable under sec. 5 2  of the prevention of companyruption act and
also under sec. 109 i.p.c. read with sec. 490
466 and 467 of the i.p.c. and that youa-2 to
a-9 under see. 120 b read with sec. 5 1  c
and  d  punishable under see. 5 2  of act 11
of 1947 and see. 420 466 and 467 and 471

p.c. and within my companynizance. charge number 11.
that you a-1 being a public servant in the
central excise department being a lower
division clerk in the office of the
superintendent of central excise narasaraopet
circle since 1951 and in such capacity were
entrusted since 1951 with blank t.p. 1 books-
dishonestly sold two of the above said t.p. 1
books under your companytrol to one late jogayya
for rs. 350 in or about the month of april
1953 and dishonestly fraudulently
misappropriated the said amount and thereby
committed the offence of misconduct punishable
under section 5 2  read with see. 5 1  c  of
the prevention of companyruption act 11 of 1947
and within my companynizance. charge number 111.
that you a-1 in the above capacity by
corrupt and illegal means and by abusing your
position as a public servant obtained for
yourself an amount of rs. 350 being the sale
proceeds of the two blank t.p. 1 books from
one late jogayya and obtained for a-2 to a-8
a pecuniary advantage of rs. 10120-14-0 th
amount of revenue due to the central govern-
ment and thereby companymitted the offence of
criminal misconduct punishable under see. 5 2
read with sec. 5 1  d  of the prevention of
corruption act 11 of 1947 and within my
cognizance. charge to. iv. that you a-9 on or about the days between
september and numberember 1953 forged 7 blank

p. ls number. 610432 610443
61046061044861044 610468 610446 as if they
are documents to have been made by the central
excise officials in their official capacity by
filling up the same within false particulars
and fixing the signatures of different
central excise officials so as to show that
they are genuine t.p. 1 permits hat you
thereby companymitted an offence punishable under
section 466 i.p.c. and within my companynizance. charge number v.
that you a-p on or about the days between
september and numberember 1953 forged the 7 t.p. 1 permits mentioned in charge numberiv
purporting to be valuable securities with
intent and that they may be used for
transporting tobacco as duty paid tobacco and
that you thereby companymitted an offence
punishable under section 467 of the i. p. c.
and within my companynizance. charge numberi. that you a-2 to a-8 on or about the days
between 12-9-53 and 5-11-53 at chodavaram
satulur velpur and tenali dishonestly used
the above seven forged t.p. is mentioned in
charge number iv as genuine which you knumber at
the time you used them as forged documents and
transported 26989 lbs. number-duty paid tobacco
as duty paid tobacco by quoting the above
fictitious documents as proof of payment of
duty and that you thereby companymitted an
offence punishable under section 465 and 471
of the i.p.c. and within my companynizance. charge number vii. that you a-2 to a-8 on or about the days
between 19-9-53 and 6-11-53 at cumbum and mar-
kapur cheated  1  b. ranga subbayya of cumbum

p. c h. venkata subbaiah and  3  shri b.
seshaiah of markapur and thereby dishonestly
inducing them to deliver you rs. 10994-10.3
was the property of the above said persons
and that you thereby companymitted an offence
punishable under section 420 i.p.c. and within
my companynizance. while seven of the accused persons were companytent with the
charges two preferred an application for revision before
the high companyrt which as already stated accepted it and
quashed the charges and directed the special judge to frame
fresh charges on the lines indicated in the judgment. mr. umrigar who appears for the state of andhra pradesh
while companyceding that charge number 1 as it stands is involved
and obscure and requires to be reframed takes exception to
the observation of the high companyrt that the charge is bad for
multiplicity. it number quite clear what the high companyrt me-
ant. if it meant that separate charges should be framed for
different offenses there can be numberobjection but if it
meant that all these accused cannumber be tried at the same
trial then we have numberdoubt that it was in error. the high
court pointed out that this is an omnibus charge companytaining
as many as 203 offenses and that it is in direct violation
of ss. 234 235 and 239 of the companye of criminal procedure. numberdoubt sub-s.  1  of s. 234 provides that number more than
three offenses of the same kind companymitted by an accused
person within the space of 12 months can be tried at the
same trial. but then s. 235 1  provides that if in any one
series of acts so companynected together as to form the same
transaction more offenses than one are companymitted by the same
person he may be charged with and tried at one trial for
every such offence. therefore where the alleged offenses
have been companymitted in the companyrse of the same transaction
the limitation placed by s. 2314 1  cannumber operate. no
doubt the offence mentioned in charge number 1 is alleged to
have been companymitted number by just one person but by all the
accused and the question is whether all these persons can
be jointly tried in respect of all these offenses. to this
kind of charge s.239 would apply. this section provides
that the following persons may be charged and tried
together namely
 1  persons accused of the same offence companymitted in the
course of the same transaction
 2  persons accused of an offence and persons accused of
abetment or an attempt to companymit such an offence
 3  persons accused of different offenses companymitted in the
course of the same transaction. clearly therefore all the accused persons companyld be tried
together in respect of all the offenses number companyprised in
charge number 1. we however agree with
mr. umrigar that it would be desirable to split up charge
number 1 suitably go that the accused persons will number be
prejudiced in answering the charges and in defending
themselves. the learned judge has hold following a decision of a single
judge in in re venkataramaiah  1  that numbercharge of
conspiracy is permissible for companymitting which the
conspiracy was entered into and which had actually been
committed. in that case the learned judge had observed as
follows at p. 132
where the-matter has gone beyond the stage of
more companyspiracy and offences are alleged to
have been actually companymitted in pursuance
thereof these two sections are wholly
irrelevant. companyspiracy it should be borne
in mind is one form of abetment  see s. 107

p.c.  and where an offence is alleged to
have been companymitted by more than two persons
such of them as actually took part in the
commission should be charged with the
substantive offence while those who are
alleged to have abetted it by companyspiracy
should be charged with the offence of abetment
under s. 109 i.p.c. the explanation to s. 109
makes this quite clear. an offence is said to
be companymitted in companysequence of abetment when
it is companymitted in pursuance of the
conspiracy and the abettor by companyspiracy in
made punishable  under s. 109  with the
punishment provided for the actual offence. we are unable to accept this view. companyspiracy to companymit an
offence is itself an offence and a person can be separately
charged with respect to such a companyspiracy. there is no
analogy between s. 120b and s. 109 i.p.c. there may be an
element of abetment in a companyspiracy but companyspiracy is
something more than an abetment. offences created by s. 109
and 120b i.p.c. are quite distinct and there is numberwarrant
for limiting the prosecution to only one element of company-
spiracy that is abetment when the allegation is that what
a person did was something over and above that. where
number of offences are companymitted by

a.i.r. 1935 mad. 130 132.
several persons in pursuance of a companyspiracy it is usual to
charge them with those offences as well as with the offence
of companyspiracy to companymit those offences. as an instance of
this we may refer to the case in s. swaminatham v. state of
madras  1 . though the point was number argued before this
court in the way it appears to have been argued before the
madras high companyrt and before the high companyrt of andhra
pradesh this companyrt did number see anything wrong in the trial
of several persons accused of offences under s. 120b and s.
420 i.p.c. we cannumber therefore accept the view taken by
the high companyrt of andhra pradesh that the charge of
conspiracy was bad. if the alleged offences are said to
leave flown out of the companyspiracy the appropriate form of
charge would be a specific charge in respect of each of
those offences along with the charge of companyspiracy. before leaving this point we would like to refer to the
decision in r. v. dawson  2  which mr. umrigar very fairly
brought to our numberice respondents being ex parte. in that
case finnemore j. who delivered the judgment of the companyrt
observed
number with regard to the first companynt for company-
spiracy this companyrt feels it is
desirable jo say something. this companyrt has
more than once warned of the dangers of
conspiracy companynts especially these long
conspiracy- companynts which one companynsel referred
to as a mammoth companyspiracy. several reasons
have been given. first of all if there are
substantive charges which can be proved it is
in general undesirable to companyplicate matters
and to lengthen matters by adding a charge of
conspiracy. secondly it can work injustice
because it means that evidence which
otherwise would be inadmissible on the
substantive charges against certain people
becomes inadmissible. thirdly it adds to the
length and companyplexity of the case so that the
trial may easily be well high unworkable and
impose a quite intolerable strain both on the
court and on the jury. the learned judges in fact quashed the companyviction

a.i.r. 1957 s.c. 340 343 344.  2  1960 1 all. e.r. 558 563.
for companyspiracy in the case before them. we agree that it is
number desirable to charge the accused persons with companyspiracy
with the ulterior object of letting in an evidence which
would otherwise be inadmissible and that it is undesirable
to companyplicate a trial by introducing a large number of
charges spread over a long period. but then this is only a
question of propriety and it should be left to the judge or
the magistrate trying the case to adopt the companyrse which he
thinks to be appropriate in the facts and circumstances of
the case. it cannumber be said as a matter of law that such a
trial is prohibited by the companye of criminal procedure. the high companyrt has further held that the learned special
judge had numberjurisdiction to try the offences under s. 120b
read with ss. 466 467 and 420 because he was appointed a
special judge under the criminal law amendment act only for
trying offences under the prevention of companyruption act. no
doubt he was appointed in the circumstances stated by the
high companyrt and therefore he will have that jurisdiction
which he is companypetent to exercise under the prevention of
corruption act or the criminal law amendment act. section 6
of the former provides that the state government may appoint
a special judge to try the following offences
 a  an offence punishable under section 161
section 165 or section 165a of the indian
penal companye  act xlv of 1860  or sub-section
 2  of section 5 of the prevention of
corruption act 1947  11 of 1947   b  any
conspiracy to companymit or any attempt to companymit
or any abetment of any of the offences
specified in clause  a . sub-s.  1  of s. 7 provides that numberwithstanding any. thing
contained in the companye of criminal procedure 1898 or in any
other law the offences specified in sub-s.  1  of s. 6
shall be triable by special judges only. sub-s.  3  of s. 7 provides that when trying any case a
special judge may also try any offences other than an
offence specified in s. 6 with which the accused may under
the companye of criminal procedure 1898 be charged at the same
trial. clearly therefore accused number 1 companyld be tried by the
special judge for offences under s. 120 b read with ss. 466 467 and 420 i.p.c. similarly the other accused who are
said to have abetted these offences companyld also be tried
by the special judge. the view of the high companyrt is thus
erroneous and its directions with respect to these offences
are set aside. the high companyrt has further held that the provisions of a
196a 2  of the companye of criminal procedure have number been
complied with and therefore the charges in respect of
offences under as. 466 and 467 companyld number be enquired into by
the special judge s. 196a 2  of the companye of criminal
procedure reads thus
numbercourt shall take companynizance of the offence
of criminal companyspiracy punishable under
section 120b of the indian penal companye
 2  in a case where the object of the
conspiracy is to companymit any number-cognizable
offence or a companynizable offence number
punishable with death imprisonment for life
or rigorous imprisonment for a term of two
years or upwards unless the state govern-
ment or a chief presidency magistrate or
district magistrate empowered in this behalf
by the state government has by order in
writing companysented to the initiation of the
proceedings
offences under ss. 466 and 467 are admittedly number-cognizable
and therefore it would seem from the plain language of
sub-s.  2  that for the offences under s. 120 b read with
ss. 466 and 467 i.p.c. the sanction of the government will
be necessary. mr. umrigar referred us to the decision in
durgadas tulsiram sood v. state  1  and said that since the
object of the companyspiracy was to cheat the government that
is to companymit an offence under s. 420 i.p.c. and the
offences under as. 466 and 467 were only means to that end
the trial was number vitiated simply because numbersanction was
obtained for prosecuting the accused for offences of
criminal companyspiracy to companymit number-cognizable offences under
as. 466 and 467 i.p.c. we do number think it necessary to say
anything on the point because in

i.l.r. 1954 bom.


civil appellate jurisdiction civil appeals number. 288-291 of
1966.
appeals by special leave from the judgment and order dated
december 7 1962 of the assam high companyrt in first appeals
number. 16-19 of 1967.

k. goswami and r. gopalakrishnan for the appellants
 in all the appeals . r. gokhale naunit lal and b. p. singh for respondent
number1 .  in all the appeals . the judgment of the companyrt was delivered by
mitter j. the central question in these appeals is whether
the civil companyrt had jurisdiction to entertain the suits and
grant the reliefs claimed. the facts are as follows-by a numberification dated march 11
1952 the governumber of assam fixed the minimum wages which
were to companye into force with effect from march 30 1952
consisting of basic wages and dearness allowance in terms of
cl.  i  sub-s.  1  of s. 4 of the minimum wages act 1948
at the rates specified in the schedule to the numberification
payable to the employees employed in tea plantations in the
different districts of assam. under the numberification the
rates were to be exclusive of companycessions enjoyed by the
workers in respect of supplies of food-stuff and other
essential companymodities and amenities which were to companytinue
unaffected. further the existing tasks and hours of work
were to companytinue until further orders. the schedule shows
that the numberification was to apply to ordinary unskilled
labour which was again sub-divided into three classes
namely  a  adult male  16 years and above   b  adult and
female  16 years and above  and  c  working children  below
16 years and above 12 years . the rates were again to be
different in the different districts of assam which were
broadly speaking divided into three sections. on april 16
1952 the government of assam published the minimum wages
rules which fixed the number of hours in the case of an
adult for a numbermal working day to nine hours subject to a
maximum of 48 hours in a week on june 2 1953 the deputy
commissioner of lakhimpur served a numberice on the manager of
one
of the appellants borhapjan tea estate to the effect that
the minimum wages prescribed had number been paid to a number
of employees in accordance with the prescribed rate. the
addressee was required to pay the outstanding amount of
wages with the requisite amount of delayed companypensation to
the employees in companyformity with s. 20 3  of the minimum
wages act and report companypliance on or before the 10th of
june 1953. the manager was further directed to show cause
why prosecution should number be sanctioned for violation of
the provision of the said act. a list of the employees with
their names was given showing 24 men labourers 58 women
labourers and one girl labourer. similar numberices were
issued to the managers of the other tea estates. the
managers submitted written replies to the authority denying
liability for payment of the amount claimed in the numberice. by order dated june 2 1954 the above mentioned authority
directed the different tea estates to pay the difference
between the full minimum wages and the amounts actually paid
to the labourers. it does number appear that the authority
concerned held any inquiry or received any evidence beyond
meeting the managers of the four tea estates at the premises
of the doom-dooma club where the government labour officer
was also present. he however recorded an order dated june
2 1954 to the effect that the companytention of the managements
of the tea estates that the lettera challans who by reason
of their old age infirmity and physical defects etc. were
incapable of performing a full numbermal working days work
could number be accepted. according to the order the point
for decision was whether a lettera challan worker was
entitled to the same rate of wages as ordinary labour
working full numbermal working days. from the order it
appears that the authority companycerned knew of the employment
of this kind of sub-numbermal workers by various tea estates
but he held that in the absence of an order for exemption
by the government in terms of s. 26 of the minimum wages
act he had to guide himself by the numberification mentioned. he held further that under the act and the rules lettera
challan labour in spite of the amount of work  time or task
rate  performed by them was to be treated as ordinary labour
entitled to wages for a full numbermal day. he therefore
directed that the tea estates should pay the difference
between the full minimum wages and the amount actually paid
together with companypensation which he fixed at three times the
amount payable to each worker. the tea estates filed four
separate suits for a declaration that the orders of the
deputy companymissioner lakhimpur dated june 2 1954 were
illegal and void and without jurisdiction and a further
declaration that the employees mentioned  sub-numbermal
workers  were number entitled to full minimum wages without
performing a numbermal days task of without working the
prescribed number of working hours. the subordinate judge
framed a number of issues including one regarding the
maintainability of the suits heard evidence and came to the
conclusion that the decision or orders of the deputy company-
missioner were all final in terms of the minimum wages act
and the suits were barred under the provisions of the act. the
learned judges of the high companyrt of assam by a majority
upheld the decision of the subordinate judge. the evidence of the managers of the tea estates was to the
effect that in each tea garden there was a number of workers
described as lettera challans who were unwilling to perform
the numbermal tasks which were available to them as numbermal
labourers that they worked for only half the day and were
unwilling to work for the full day as other labourers. in order to determine whether a suit challenging the
decision of the authority under the act is maintainable or
number it is necessary to take a numbere of the object of the
act and its provisions in general. the act was clearly
aimed at providing for fixing minimum rates of wages in
certain employments which were defined as scheduled
employments. an employee meant any person who was
employed for hire or reward to do any work skilled or
unskilled manual or clerical in a scheduled employment in
respect of which minimum rates of wages had been fixed. s.
3 empowered the appropriate government to fix the minimum
rates of wages payable to employees employed in an
employment specified in part i or part ii of the schedule
and in an employment added to either part by numberification
under s. 27. under sub-s.  2  of s. 3 government might fix
a minimum rate of wages for time work a minimum rate of
wages for piece work a minimum rate of remuneration in the
case of employees employed on piece work for the purpose of
securing to such employees a minimum rate of wages on a time
work basis and a minimum rate  whether a time rate or a
piece rate  to apply in substitution for the minimum rate
which would otherwise be applicable in respect of overtime
work done by employees. the section also empowered the
government to fix different minimum rates in respect of
different scheduled employments as also different classes of
work in the same scheduled employment for adults
adolescents children and apprentices as also for different
localities. under s. 4 the minimum rate of wages fixed
might companysist of basic rate of wages and a special allowance
at a rate to be adjusted or a basic rate of wages with or
without the companyt of living allowance. s.12 made it
obligatory on the employer to pay to every employee engaged
in a scheduled employment wages at a rate number less than the
minimum rate of wages fixed by the numberification. under s.13
it was open to the appropriate government to fix the number
of hours of work which were to companystitute a numbermal working
day in regard to any scheduled employment. s. 15 provided
as follows
if an employee whose minimum rate of wages
has been fixed under this act by the day works
on any day on which he was employed for a
period less than the requisite number of hours
constituting a numbermal working day he shall
save as otherwise hereinafter provided be
entitled to receive wages in respect of work
done by him on
that day as if he had worked for a full numbermal
working day
provided however that he shall number be
entitled to receive wages for a full numbermal
working day-

in any case where his failure to work is
caused by his unwillingness to work and number by
the omission of the employer to provide him
with work and

in such other cases and circumstances as
may be prescribed. s. 20 with the marginal numbere claims is divided into seven
subsections. sub-s.  1  empowers the appropriate government
to appoint a person of the qualifications mentioned to be
the authority to hear and decide all claims arising out of
payment of less than the minimum rates of wages. sub-s.  2
provides for the application to the said authority for a
direction under sub-s.  3  in all cases where an employee
has any claim of the nature referred to in sub-s.  1 . such
application may be made inter alia by the employee himself
or any legal practitioner or any official of a registered
trade union. sub-s.  3  runs as follows-
when any application under sub-section  2  is
entertained the authority shall hear the
applicant and the employer or give them an
opportunity of being heard and after such
further inquiry if any as it may companysider
necessary may without prejudice to any other
penalty to which the employer may be liable
under this act direct-

in the case of a claim arising out of
payment of less than the minimum rates of
wages the payment to the employee of the
amount by which the minimum wages payable to
him exceed the amount actually paid together
with the amount of such companypensation as the
authority may think fit number exceeding ten
times the amount of such excess-

in any other case the payment of the
amount due to the employee together with the
payment of such companypensation as the authority
may think fit number exceeding ten rupees and
the authority may direct payment of such
compensation in cases where the excess or the
amount due is paid by the employer to the
employee before the disposal of the
application. sub-s.  4  empowers the authority to levy a penalty number
exceeding rs. 50/- if he is satisfied that the application
was either malicious or vexatious. sub-s.  5  prescribes
for the manner of recovery of the amount directed to be paid
under the section. under sub-s.  6  every direction of the
authority under this section shall be final. sub-s.  7  clothes every authority appointed under sub-s.
 1  with the powers of a civil companyrt under the companye of civil
procedure for the purpose of taking evidence and of
enforcing the attendance of witnesses and companypelling the
production of documents etc. s. 24 companytains an express
provision for the bar of suits of certain kinds. it reads
numbercourt shall entertain any suit for the
recovery of wages in so far as the sum so
claimed-
 a  forms the subject of an application
under section 20 which has been presented by
or on behalf of the plaintiffor
 b  has formed the subject of a direction
under that section in favour of the plaintiff
or
 c  has been adjudged in any proceeding
under that section number to be due to the
plaintiff or
 d  companyld have been recovered by an
application under that section. under s. 25 any companytract or agreement by which an employee
relinquishes or reduces his right to a minimum rate of wages
etc is to be null and void. sub-s.  1  of s. 26 empowers
the appropriate government subject to such companyditions as it
may think fit to impose to direct that the provisions of
the act shall number apply in relation to the wages payable to
disabled employees. our task is to ascertain whether the above provisions of the
act impose a bar on the institution of suits of the nature
described in this case either expressly or impliedly. the
question of maintainability of civil suits to challenge
actions purported to have been taken under certain special
statutes has engaged the attention of this companyrt in a number
of cases in recent years as also of the judicial companymittee
of the privy companyncil before the establishment of this companyrt. under s. 9 of the companye of civil procedure the companyrts have
jurisdiction to try all suits. of a civil nature excepting
suits of which their companynizance is either expressly or
impliedly barred. in secretary of state v. mask company 1
the question was whether the order of the companylector of
customs on an appeal under s. 188 of the sea customs act
from a decision or an order passed by an officer of customs
as to rate of duty leviable under a tariff excluded the
jurisdiction of the civil companyrt to entertain a challenge on
the merits of the decision of the officer of customs. it
was pointed out that the determination of the question
depended on the terms of the particular statute under
construction and decisions on other statutory provisions
were number of material assistance except in so far as general
principles of companystruction were laid down. the board relied
upon the exposition of law by willes j. in wolverhampton
new waterworks company v. hawkesford 2  that-
where a liability number existing at companymon law
is created by a statute which at the same time
gives a special and particular remedy for
enforcing it
 1  67 i.a. 222 237.  2  1859 6 c.b.  n.s.  336.
the party must adopt the form of remedy given by the
statute. s. 188 of the sea customs act was one of a number
of sections companytained in chapter xvii of the act headed
procedure relating to offences appeals etc. and included
ss. 169 to 193. s. 182 provided for liability to
confiscation or increased rates of duty in certain cases. s. 188 laid down that any person deeming him-self aggrieved
by any decision or order passed by an officer of customs
under the act may within three months from the date of such
decision or order appeal therefrom to the chief customs
authority or in such cases as the local government directs
to any officer of customs number inferior in rank to a customs-
collector and empowered in that behalf by name or in virtue
of his office by the local government. such officer or
authority may thereupon make such further enquiry and pass
such order as he thinks fit companyfirming altering or
annulling the decision or order appealed against and every
order passed in appeal under this section was to be subject
to the power of revision companyferred by s. 191 final. according to the judicial companymittee ss. 188 and 191 companytain-
ed a precise and self-contained companye of appeal in regard to
obligations which were created by the statute itself and it
enabled the appeal to be carried to the supreme head of the
executive government. the board observed
it is difficult to companyceive what further
challenge of the order was intended to be
excluded other than a challenge in the civil
courts. the well knumbern dictum of this judgment to be found at p. 236
is that the exclusion of the jurisdiction of the civil
courts is number to be readily inferred but such exclusion
must either be explicitly expressed or clearly implied and
even if jurisdiction was excluded the civil companyrts would
still have jurisdiction to examine into cases where the
provisions of the act had number been companyplied with or the
statutory tribunal had number acted in companyformity with the
fundamental principles of judicial procedure. in pyx granite company limited v. ministry of housing and local
government 1  viscount simonds observed
it is a principle number by any means to be
whittled down that the subjects recourse to
her majestys companyrts for the determination of
his rights is number to be excluded except by
clear words. in raleigh investment company limited v. governumber general in companyn-
cil 2  where the plaintiff-appellant had filed a suit
claiming a declaration that certain provisions of the indian
income-tax act purporting to authorise the assessment and
charging to tax of a number-resident in respect of dividends
declared or paid outside british india but number brought into
british india were ultra vires the legislative powers of
the federal legislature and for repayment
 1  1960 a.c. 260 286.  2  74 i.a. 50 62.
of the sums mentioned the judicial companymittee observed
while dismissing the appeal that
in companystruing the sections it is pertinent
in their lordships opinion to ascertain
whether the act companytains machinery which
enables an assessee effectively to raise in
the companyrts the question whether a particular
provision of the income-tax bearing on the
assessment made is or is number ultra vires. the
presence of such machinery though by numbermeans
conclusive marches with a companystruction of the
section which denies an alternative
jurisdiction to inquire into the same subject
matter. the judicial companymittee examined the different provisions of
the indian income-tax act in some detail including s. 67 of
the act and came to the companyclusion that as the machinery
provided by the act companyld be effectively adopted by the
assessee companyplaining of ultra vires assessment jurisdiction
to question the assessment otherwise than by use of the
machinery expressly provided by the act would appear to be
inconsistent with the statutory obligation to pay arising by
virtue of the assessment. it must be numbered at once that the above extreme proposition
of law has number found favour here. this companyrt was number
prepared to accept the dictum in the judgment to the effect
that even the companystitutional validity of the taxing
provision would have to be challenged by adopting the
procedure prescribed by the income-tax act-see firm and
illuri subbayya chetty sons v. the state of andhra
pradesh 1 . in this case the companyrt had to examine whether
s. 18-a of the madras general sales tax act 1939 excluded
the jurisdiction of civil companyrts to set aside or modify any
assessment made under the act. s. 18-a there provided that
numbersuit or other proceeding shall except as expressly
provided in this act be instituted in any companyrt to set
aside or modify any assessment made under this act. it was
common ground that there was numberexpress provision made in
that act under which the suit companyld be said to have been
filed. it was there emphasised that
while providing for a bar to
suits in ordinary civil companyrts in respect of
matters companyered by s. 18-a the legislature
has taken the precaution of safeguarding the
citizens rights by providing for adequate
alternative remedies. section 11 of the act
provides for appeals to such authority as may
be prescribed s. 12 companyfers revisional
jurisdiction on the authorities specified by
it s. 12-a allows an appeal to the appellate
tribunal s. 12-b provides for a revision by
the high companyrt under the cases specified in
it s. 12-c provides for an appeal to the high
court and s. 12-d lays down that petitions
applications and appeals to high companyrt should
be heard by a bench of number less than two
judges it companyld thus be seen that any
dealer who
 1  1964 1 s.c.r. 752 760.
is aggrieved by an order of assessment passed
in respect of his transactions can avail
himself of the remedies provided in that
behalf by these sections of the act. it is in
the light of these elaborate alternative
remedies provided by the act that the scope
and effect of s. 18-a must be judged. in kala bhandar v. municipal companymittee 1 -a suit for refund
of excess tax purported to be recovered under the central
provinces and berar municipalities act  2 of 1922 -this
court examined the principles laid down in the above cases
and said
further one of the companyollaries flowing from
the principle that the companystitution is the
fundamental law of the land is that the numbermal
remedy of a suit will be available for
obtaining redress against the violation of a
constitutional provision. the companyrt must
therefore lean in favour of companystruing a law
in such a way as number to take away this right
and render illusory the protection afforded by
the companystitution. the companyrt found that there was numbermachinery provided by the
act for obtaining a refund of tax assessed and recovered in
excess of the companystitutional limit and that the machinery
actually provided by the act was number adequate for enabling
an assessee to challenge effectively the companystitutionality
or legality of assessment or levy of a tax by a municipality
or to recover from it what was realised under an invalid
law. in kamala mills limited v. state of bombay 2  this companyrt had to
examine the question whether a suit filed by the mills
challenging assessments made under the bombay sales tax act
1946 was barred under the provisions of s. 20. the said
section read as follows
save as is provided in s. 23 numberassessment
made and numberorder passed under this act or the
rules made thereunder by the companymissioner or
any person appointed under s. 3 to assist him
shall be called into question in any civil
court and save as is provided in sections 21
and 22 numberappeal or application for revision
shall lie against any such assessment or
order. after examining the various sections of the act including s.
5 the charging section s. 10 imposing an obligation on
dealers to make returns s. 11 dealing with the assessment
to tax and the procedure to be followed in respect thereof
s. 11-a dealing with turnumberer which had escaped assessment
and the right to prefer an appeal and a revision under ss. 21 and 22 of the act the companyrt said
it would thus be seen that the appropriate
authorities have been given power in express
terms to examine the
 1  1965 3 s.c.r. 499.  2  1966 1 s.c.r. 64 75.
returns submitted by the dealers and to deal
withthe question as to whether the
transactions entered into by the dealers are
liable to be assessed under the relevant
provisions of the act or number. in our opinion
it is plain that the very object of
constituting appropriate authorities under the
act is to create a hierarchy of special
tribunals to deal with the problem of levying
assessment of sales tax as companytemplated by the
act. if we examine the relevant provisions
which companyferred jurisdiction on the
appropriate authorities to levy assessment on
the dealers in respect of transactions to
which the charging section applies it is
impossible to escape the companyclusion that all
questions pertaining to the liability of the
dealers to pay assessment in respect of their
transactions are expressly left to be decided
by the appropriate authorities under the act
as matters falling within their jurisdiction. whether or number a return is companyrect whether or
number transactions which are number mentioned in
the return but about which the appropriate
authority has knumberledge fall within the
mischief of the charging section what is the
true and real extent of the transactions
which are assessable all these and priate
authorities themselves the
whole activity of assessment beginning with
the filing of the return and ending with an
order of assessment falls within the
jurisdiction of the appropriate authority and
numberpart of it can be said to companytinue a
collateral activity number specificallyand
expressly included in the jurisdiction of the
appropriate authority as such. it was in the light of these provisions of the act that s.
20 had to be examined and this companyrt held that the words
used were so wide that even erroneous orders of assessment
made would be entitled to claim its protection against the
institution of a civil suit-see 1966 1 s.c.r. at page

to quote the words of the judgment itself
in every case the question about the
exclusion of the jurisdiction of civil companyrts
either expressly or by necessary implication
must be companysidered in the light of the
words used in the statutory provision on which
the plea is rested the scheme of the relevant
provisions their object and their purpose. the companyrt further said
whenever it is urged before a civil companyrt that its
jurisdiction is excluded either expressly or by necessary
implication to entertain claims of a civil nature the companyrt
naturally feels inclined to companysider whether the remedy
afforded by an alternative provision prescribed by a special
statute is sufficient or adequate. in cases
where the exclusion of the civil companyrts
jurisdiction is expressly provided for the
consideration as to the scheme of the statute
in question and the adequacy or sufficiency of
the remedies provided for by it may be
relevant but cannumber be decisive. but where
exclusion is pleaded as a matter of necessary
implication such companysiderations would be very
important and in companyceivable circumstances
might even become decisive. if it appears
that a statute creates a special right or a
liability and provides for the determination
of the right and liability to be dealt with by
tribunals specially companystituted in that
behalf and it further lays down that all
questions about the said right and liability
shall be determined by the tribunals so
constituted it becomes pertinent to enquire
whether remedies numbermally associated with
actions in civil companyrts are prescribed by the
said statute or number. the relevance of this
enquiry was accepted by the privy companyncil in
dealing with s. 67 of the income tax act in
raleigh investment companys case 1  and that is
the test which is usually applied by all
civil companyrts. we may also numbere the case of k. s. venkataraman company v.
state of madras 2  where the above authorities were again
examined at some length. here too the main question was
whether the suit was number maintainable under s. 18-a of the
madras general sales tax act 1939. it was held by a
majority of this companyrt that the validity of an order by an
authority acting under the provision of a statute which was
ultra vires would be open to challenge in a civil companyrt. referring to the case of firm radha kishan  deceased
represented by hari kishan v. administrator municipal company-
mittee ludhiana 3  it was said that
a suit in a civil companyrt will always lie to
question the order of a tribunal created by a
statute even if its order is expressly or by
necessary implication made final if the said
tribunal abuses its power or does number act
under the act but in violation of its
provisions. there can be numberquestion in this case that the minimum wages
act cuts across the companytract between the employer and the
employee and wherever applicable the employer is obliged to
pay the minimum wages or take the companysequences of failure to
pay it. any employee who feels himself aggrieved by the
refusal of the employer to pay the minimum wages fixed under
the act has the right to make a companyplaint either by himself
or through the prescribed agents to the authority mentioned
in the act. under sub-s.  3  of s. 20 the authority has to
hear the applicant and the employer or give them an
opportunity of being heard and companyld straightaway give a
direction as regards the alleged number-payment

i.a. 50.  2  1966 2 s.c.r. 229.  3  1964 2 s.c.r. 273.
of the minimum rates of wages and such companypensation as he
thinks fit number exceeding ten times the amount of the excess
of the minimum wages over that which was paid. it is true
that the sub-section provides for a further inquiry but such
inquiry is to be at the discretion of the authority. the
nature and scope of the inquiry would depend on the exact
controversy raised in the case. if it be of a trivial
nature the tribunal can probably deal with it in a summary
manner but where it is alleged that the numberification under
the act is number applicable to a. certain class of workers it
is the duty of the authority to give a proper hearing to the
parties allowing them to tender such evidence as they think
proper before making an order which may have far-reaching
consequences. the authority in this case instead of
recording any evidence and properly hearing the matter
disposed of it in a perfunctory manner which companyld hardly be
called a hearing. as a matter of fact the only inquiry
which took place in this case was a very informal one in
the premises of the doom-dooma club for the space of half an
hour or so when the authority had a talk with the managers
of the tea estates. there is numberprovision for appeal or
revision against the direction of the authority although he
may levy a penalty to the extent of ten times the amount by
which the minimum wages overtop the payment actually made. whatever he says is the final word on the subject. all this
can but lead to the companyclusion that s. 20 was number aimed at
putting a seal on the adjudication if any under it. it
was to be of a nature which suited the discretion of the
officer companycerned although he was given the powers of a
civil companyrt in certain respects. in such a situation it is
impossible to hold that the legislature meant to exclude the
jurisdiction of civil companyrts to go into the question of number-
payment of minimum wages claimed as final. in our opinion
sub-s.  6  of s. 20 merely shows that the discretion of the
authority companyld number be questioned under any provision of the
act. it does number exclude the jurisdiction of the civil
court when the challenge is as to the applicability of the
act to a certain class of workers. it is pertinent to numbere that s. 24 of the act creates an
express bar in respect of a particular kind of suits
namely suits for recovery of wages in certain
eventualities. the obvious intention was that a poor
employee was number to be driven to fit-- a suit for the
payment of the deficit of his wages but that he companyld avail
himself of the machinery provided by the act to get quick
relief. it does number in terms bar the employer from
instituting a suit when his claim is that he has been called
upon to pay wages and companypensation to persons who are number
governed by the numberification under the minimum wages act. on an analysis of the provisions of the act we find  1
suits of the nature to be found in this case are number
expressly barred by the act  2  there is numberprovision for
appeal or revision from the direction of the authority given
under s. 20 3  of the act and  3  the authority acting
under s. 20 3  might levy a penalty which might be as high
as ten times the alleged deficit of payment which
again is number subject to any further scrutiny by any higher
authority. in view of our findings as above as also the
fact that the authority in this case disregarded the
provision as to hearing and inquiry companytained in the act for
all practical purposes we hold that the civil companyrt had
jurisdiction to entertain the suits. the question next arises as to whether the plaintiffs made
out any case for relief. in our view the plaintiffs were
clearly entitled to relief. the numberification dated march
11 1952 was clearly applicable only to ordinary unskilled
labour. the word ordinary has in our opinion some
significance. it means usual number exceptional. in other
words ordinary unskilled labour must mean unskilled labour
prepared to work and working in the ordinary way. if under
r. 24 of the rules framed under this act the period of work
is fixed at nine hours a day a labourer who cannumber work for
more than half of it does number fall within the category of
ordinary unskilled labour. a lettera challan cannumber work
due to his incapacity old age infirmity etc. according
to the evidence of the managers of the tea gardens they
were unwilling to work for more than half the day because of
their physical companydition. it was due to their want of
physical strength to work for nine hours a day and number the
inability or unwillingness of the employer to find
employment for them for a full day. take for instance the
facts in pabbojan companypanys case. according to the
evidence of its manager the labour force in the estate
consisted of 1650 labourers while the number of sub-numbermal
workers was 83 before march 30 1952. it cannumber be
suggested that if the tea garden companyld provide work for 1567
labourers working nine hours a day it companyld number do so for
an additional number of 83 persons. as the manager said
these persons were unwilling to perform the numbermal tasks
which were available to them as numbermal labourers. the
manager also said that lettera challans  sub-numbermal
workers  always go off at 11 or 12 midday. take again the
evidence of bairagi a worker of the rupai tea estate. he
said that some years before he was examined in companyrt he
used to work as a carpenter. as a result of a fall from a
house he had pain on his chest and approached the doctor
and requested him to enter his name as lettera challan. he
frankly admitted that he got into lettera challan because he
could number companyplete the full task. the evidence of the
managers and of this the only witness on this point on
behalf of labour establishes beyond doubt that lettera
challan companyld number work a full day and as such they were number
ordinary unskilled labour. as such their case would be
covered by the proviso to s. 15 and they would number be
entitled to receive wages for a full numbermal working day
because of their unwillingness to work. it does number matter
whether some of the lettera challans companyld also be said to
be disabled employees who would companye within the purview of
s. 26 1  of the act. from the evidence of the managers it
is clear that the system of lettera challans had been in
force for very many years. the record does number show number are
we in a position to guess why an exception was number made in
their case in the numberification. but
even in the absence of any mention of lettera challans in
the numberification sub-numbermal workers who are unwilling to
work for more than half a day are number entitled to receive
what ordinary unskilled labourers working nine hours a day
get. the object of the act is to ensure some sort of
industrial peace and harmony by providing that labour cannumber
be exploited and must at least be provided with wages which
are fixed at certain minimum rates. it would go against
such a principle if the companyrts were to uphold that persons
who cannumber work for more than half a day should receive what
others working a full day get. however that is a matter
which the appropriate government may companysider. we therefore hold that the orders of the defendant number 1
dated june 2 1954 were number binding on the plaintiffs-
appellants.