civil appellate jurisdiction civil appeals number. 244 and 245
of 1954.
appeals from the judgment and order dated august 19 1952
of the labour appellate tribunal of india  calcutta  at
allahabad in miscellaneous cases number c-91 and 93 of 1952.

c. chatterji h. j. umrigar j. b. dadachanji s. n.
andley and rameshwar nath for the appellant in both
appeals. purshottam tricumdas r. ganapathy iyer and b. p.
maheshwari for respondents in both appeals. m. c. setalvad
attorney-general for india porus a. mehta and r. h.
dhebar for the intervener. 1956. october 24. the judgment of the companyrt was delivered
by
bhagwati j.-these two appeals by special leave arise out of
an order of the labour appellate tribunal of india lucknumber
bench by which it dismissed the application of the
appellant under s. 22 of the industrial disputes  appellate
tribunal  act 1950 hereinafter referred to as the act for
permission to dismiss the respondents from its employ and
allowed the application of the respondents under s. 23 of
the act for reinstatement. the respondents are 76 employees of the appellant a limited
company of sugar mills situated in village chitauni in the
district of deoria and were working in the engineering
department of the mills in the mill house boiling-house and
the workshop sections. there were disputes between the
appellant and its workmen and on the date in question
i.e. may 27 1952 there was pending before the labour
appellate tribunal an appeal which was registered as cal-
101/51. it appears that one motilal singh an employee of
the appellant had been dismissed by it sometime prior
thereto and he had been inciting the workmen to make companymon
cause with him and at a meeting held the previous night
some sort of action had been decided upon. when the workmen
of the appellant entered the mills on the morning of may 27
1952 these 76 workmen though they entered their respective
sections of the engineering department did number companymence any
work from 7 a.m. as they should have done. the sectional
engineers in-charge asked these workmen as to why they did
number companymence their work and became a ware of their intention
to resort
to a tools-down strike. they reported the fact to the chief
engineer who sent a slip to the general manager informing
him that the workers had gone on a tools down strike. the
general. manager thereupon personally went to the workshop
mill house and -the boiling house and asked these workmen
number to resort to such strike but the latter did number pay any
heed to his advice. -the general manager then asked the
chief engineer to persuade these workmen to companymence the
work give them time for about 2 hours till 10-30 a.m. and
report to him if in spite of his persuasions they did number
commence work. the persuasions of the chief engineer and
also of the section engineers proved of numberavail and the 76
workmen persisted in their attitude with the result that the
section engineers made their reports to the general manager
through the chief engineer giving the names of the workmen
belonging to their respective sections who had resorted to
the tools-down strike with effect from 7 a.m. that day. these reports were endorsed by the chief engineer and passed
on to the general manager whoin his turn passed an order
at about 10-30 a.m. suspending these 76 workmen till further
orders. the order for suspension was companymunicated to these
workmen through their sectional heads and was also pasted on
the numberice board of the mills. there was a recess between
11 a.m. and 1 p.m. and when the gates were opened at 1 p.m.
these 76 workmen in spite of the warnings of the
gatekeepers and jemadar to the companytrary rushed into the
mills entered their respective sections and adopted a
threatening attitude. the sectional engineers made reports
to the general -manager in regard to this occurrence and
these reports also were endorsed by the chief engineer and
passed on by him to the general manager. the situation
which was created by these workmen by forcibly entering
their respective sections and companytinuing there threatening
violence was explosive and the management had to call in the
police in order to avert violence and damage to the
property. the police came in at 5 p.m. and order appears to
have been restored. there was numberuntoward incident that day
but the management appears to have viewed the situation
with seriousness and approached the regional companyciliation
officer the next day in order to ask for advice in regard to
the dismissal of these workmen. the regional companyciliation
officer however pointed out to the general manager that
in view of the pendency of the appeal before the labour
appel late tribunal he had numberjurisdiction to entertain
any application for such permission and referred the general
manager to the labour appellate tribunal. the workmen on
the other hand got a letter dated may 28 1952 addressed
to the general manager by the general secretary of the chini
mill mazdoor sangh to the effect that they had gone to the
gates of the mills as usual at 7 a.m. that day to attend to
their work but they were number allowed to enter the mill pre-
mises. they charged the management with the intention to
victimise them -on the charge of a tools down strike and
stated that they had neither struck number intended to strike
but had been prevented from attending to their work and had
therefore been advised to go back to their quarters with a
view to maintain peace. the last paragraph of that letter
was very significant. the general manager was told that if
he did number mend his illegal mistakes and did number take the
workmen back on duty he would be responsible for any breach
of peace. after receipt of that letter it was evident that the workmen
would resort to violent measures in order to attend to their
work and a breach of peace was apprehended. the management
evidently companytinued the police precautions and after having
waited for some time the general manager furnished to these
76 workmen on june 2 1952 a charge-sheet wherein he
charged them with having companymitted misconduct within the
meaning of cl. l. i  a  and  b  and wailful insubordination
within the meaning of el. l. i  a   b  and  w  of the
standing orders. he called upon them to show cause within
24 hours of the receipt of the charge-sheet why disciplinary
action should number be taken against them and gave them
intimation that an open enquiry in companynection with the said
charges
would be held by him at 8 a.m. on june 6 1952. he also
intimated that if all the workmen arranged to present
themselves earlier than june 6 1952 he would take up the
said enquiry earlier provided however an intimation was
received to that effect from them or from their union. the
workmen were to remain suspended till the enquiry was
finished. the workmen addressed uniform letters to the general manager
denying that there was any tools down strike on may 27
1952 and alleging that the sectional heads and the chief
engineer bad companyspired together under some mysterious
preconceived plans and stated that numberuseful purpose would
be served by holding an enquiry on the 1 1 th day of their
suspension. they pointed out that such indefinite period of
suspension during the pendency of the appeal before the
labour appellate tribunal and reconciliation board was
illegal and unjustified and was in utter disregard of the
standing orders. by their further letter dated june 5
1952 similarly addressed to the general manager they
voiced their apprehension that they would number get any
justice from an enquiry held by the management itself and
asked for investigation by an impartial tribunal. the
management however held the enquiry as intimated at 8 a.m.
on june 6 1952. the workmen number-co-operated and did number
present themselves at the enquiry. the general manager immediately addressed a letter to these
workmen putting on record that- in spite of the orders
conveyed by him earlier the workmen had disobeyed the. same
and had number appeared at the appointed time and place for the
enquiry into the tools-down strike. he pointed out that by
number appearing in this manner they had made themselves liable
to dismissal for insubordination and intimated that the
management was applying to the proper authorities for
permission to dismiss them pending receipt of which the
workmen would remain under suspension. this letter was
received by the workmen at 9 a.m. that day and they replied
through the general secretary of the chini mill mazdoor
sangh repeating that a demand had been made for an
investigation by an impartial tribunal and in so far as no
impartial tribunal had been appointed they were number
agreeable to present themselves and submit their defence at
the enquiry which was companyducted by the management itself. the appellant thereafter made the necessary application
under s. 22 of the act before the labour appellate tribunal
of india lucknumber bench for permission to dismiss these 76
workmen. in the affidavit which was filed in support of
that application all the facts herein before mentioned were
set out in extenso and it was pointed out that the
management after giving full companysideration to the
explanations and offering every possible opportunity to
these workmen to explain their companyduct companypled with the
unreasonable attitude adopted by them had adjudged them
guilty of misconduct under cl. l. i  a   b  and  w  of the
standing orders and companysidered that any further employment
of these workmen would be extremely detrimental to
discipline and dangerous in the interests of the industry. the workmen in their turn filed on june 9 1952 an
application under s. 23 of the act for requisite action to
be taken against the appellant for having companytravened s.
22 b  of the act by inflicting on them the punishment in the
shape of harassment by resorting to an illegal lookout for
an indefinite period with effect from may 27 1952 without
obtaining the prior permission of the  labour appellate
tribunal and thereby acting companytrary to law and resorting
to mala fide actions in direct violation of the provisions
of the standing orders in companytinuation of the managements
anti-trade  union  activities. companynter-affidavits were made by the workmen as also the
management in reply to both the above applications. the
labour appellate tribunal held that the appellant did number
act in strict companypliance with cl. l. 12 of the standing
orders and was therefore number entitled to ask for
permission to dismiss the 76 workmen. it accordingly
dismissed the appellants application under s. 22 of the
act. in regard to the application of the workmen under s.
23 of the act it held
that the wholesale suspension of the 76 workmen and their
prevention from resuming work at i p.m. after the lunch hour
amounted to a lockout and that this companyduct of the appellant
amounted to punishment of the workers whether by dismissal
or otherwise and was therefore in companytravention of s.
22 b  of the act. it accordingly ordered the reinstatement
of the workmen if they presented themselves at the office of
the general manager during office hours on any day within 15
days of the order and also ordered payment of half the
salary and allowances for the period of number-payment viz. from the date of their suspension up to the date on which
they were taken back in service. shri n. c. chatterjee for the appellant before us has
strenuously urged that the workmen had resorted to the
tools-down strike which was an -illegal strike and that the
appellant was well within its rights in suspending the
pending enquiry and also pending the application for
permission to dismiss them made before the labour appellate
tribunal. even if it be held that the appellant had
declared a lockout such a lockout was in companysequence of the
illegal strike resorted to by the workmen and companyld number be
deemed to be illegal. he further urged that the management
had held an enquiry into the illegal strike which had been
resorted to by the workmen and found that the workmen were
guilty of misconduct and insubordination within the meaning
of cl. l. i  a   b  and  w  of the standing orders and the
appellant rightly came to the companyclusion that any further
employment of these workmen would be extremely detrimental
to discipline and dangerous in the interests of the indus-
try. he also companytended that the delay in holding the
enquiry was number unreasonable and the suspension of the
workmen pending enquiry for more than four days was due to
sufficient reason the atmosphere created by the number-
cooperation of the workers being so tense as number being
appropriate for the holding of an enquiry within those four
days that there was numberbreach of cl. l. 12 of the standing
orders and that the labour appellate tribunal was in error
when it
refused to grant the application under s. 22 of the act. civil appeal number 245 of 1954 which is directed against the
order of the labour appellate tribunal under s. 23 of the
act may be disposed of at once. the labour appellate
tribunal was of opinion that the companyduct of the appellant in
preventing the workmen from companytinuing work after i p.m. on
may 27 1952 came within the definition of a lockout and
the workmen being employed in a public utility companycern such
lockout would be illegal without a proper numberice. it was
further of opinion that this companyduct amounted to punishment
of a worker whether by dismissal or otherwise and was
therefore in companytravention of s. 22 b  of the act. this
conclusion of the labour appellate tribunal was in our
opinion based on a misapprehension of the whole position. the position had been summed up by the labour appellate
tribunal in the following words-
as a matter of fact the management never thought of a
lockout. their idea was to suspend the suspected persons
pending enquiry for which they gave a numberice. if this was the companyrect position the companyclusion reached by
the labour appellate tribunal that the companyduct of the
management came within the definition of a lockout was
absolutely unjustifiable. the labour appellate tribunal
recorded its inability to companye to a definite finding as to
what was the position which obtained on may 27 1952. it
observed-
we have got a number of affidavits in support of the
parties case and there is oath against oath. we do number
find ourselves in a position to hold definitely as to what
was the exact situation. but it does appear to us that a
mountain has been made of a mole hill and companyclusions have
been arrived at without going deep into the matter. even if the parties had made a mountain of a mole hill and
had reached companyclusions without going deep into the matter
it was certainly the business of the labour appellate
tribunal itself to record a finding of fact in regard to the
situation as it obtained on
that day. this unfortunately the labour appellate tribunal
did number do and it came to record its companyclusion that the
conduct of the management came within the definition of a
lockout without realizing that such companyclusion was
inconsistent with what it had stated a little earlier that
the management as a matter of fact never thought of a
lockout. -we have been taken through the whole evidence by
the learned companynsel for the appellant and there is clear
documentary evidence to show that the 76 workmen resorted to
a tools-down strike from 7 a.m. on may 27 1952. the
reports which were made by the section engineers and sent to
the general manager through the chief engineer were clear
and categoric in regard to such tools-down strike having
been resorted to by the workmen in question and the list of
the 76 workmen which was prepared by the general manager
ordering their suspension was based on those reports. the
further reports which were made by the section engineers
again sent by them to the general manager through the chief
engineer in the afternumbern of may 27 1952 also were clear
and categoric in regard to the said workmen having been
asked number to enter the workshop the boiling house and the
mill house at 1 p.m. but their having entered the same
threatening violence. a faint attempt was made to charge
the section engineers and the chief engineer with having
conspired under some mysterious preconceived plans but the
same rested merely on a bare allegation and was number
substantiated by any tangible evidence. even though there
was some companyflict of evidence in regard to the time when the
numberice of suspension was given by the general manager to
these workmen and when the numberice in that behalf was pasted
on the numberice-board of the appellant it is abundantly clear
on the documentary evidence above referred to that the 76
workmen resorted to a tools down strike from 7 a.m. on the
morning of may 27 1952 that they were suspended till
further orders immediately after the receipt by the general
manager of the first series of reports from the section
engineers that they were prevented from entering the
premises
at i p.m. but entered the same threatening violence. if
this is the true position it follows that there was no
lockout declared by the appellant much less an illegal
lockout. the workmen bad resorted to an illegal strike and
the general manager rightly ordered that the workmen
indulging in such strike should be suspended pending further
orders which obviously meant pending enquiry into their
conduct and the obtaining of the permission to. dismiss them
as a result of such enquiry if the management thought fit. if there was thus numberillegal lockout at all the companyclusion
reached by the labour appellate tribunal in that behalf was
absolutely unjustified. even if there had been a lockout as
concluded by the labour appellate tribunal the same was in
consequence of the illegal strike which had been resorted to
by these workmen and companyld number by virtue of s. 24 3  of the
industrial disputes act 1947 be deemed to be illegal. there is however a more fundamental objection that even
if the appellant be held responsible for having declared an
illegal lockout the lockout would number companye within the ban
of s. 22 of the act. the labour appellate tribunal had
before it an earlier decision of its own in jute workers
federation calcutta v. clive jute mills 1  in which the
same question had beed companysidered with reference to s. 33 of
the industrial disputes act 1947. in that case a lockout
had been declared which involved 4000 workers of the
company and a preliminary companytention was urged that there
was numbercontravention of the provisions of s. 33 of the
industrial disputes act 1947. the labour appellate
tribunal companysidered the question whether the lockout had  1
in fact altered the companyditions of service of the workmen to
their prejudice or  2  had the effect of discharge or  3
amounted to punishment of the workmen. it came to the
conclusion that a lockout had number the effect of a discharge
for a lockout does number automatically terminate the services
of the workmen. it did number also amount to punishment for
punishment presup-
 1  1951 ii l.l.j. 344.
poses an offence or misconduct. a lockout is generally
adopted as a security measure and may in certain cases be
used as a weapon companyresponding to what the employees have in
the shape of a strike and that therefore a. 33 b  would
number be companytravened by the companypany by. declaring a lockout. the labour appellate tribunal then companysidered whether a
lockout would attract the operation of s. 33 a . it was of
opinion that numberautomatic termination of the services of the
employees was brought about by a lockout and the question
was whether any of the companyditions of service was altered
thereby to their prejudice. the companytention of the union was
that the companyditions of service were altered to the prejudice
of the workmen because those employees did number in fact get
their pay during the period of the lockout with the
possibility of losing it. this companytention was negatived and
the labour appellate tribunal was of opinion that the
conditions of their service would be altered by the lockout
if the employees lost their right to receive their pay
during the period of lockout in all circumstances but the
question whether they would be entitled to get their pay
during that period companyld number be postulated with certainty
for that would depend on a variety of companysiderations in
the opinion of the labour appellate- tribunal to bring a
case within s.-33 a  the questioned act of the employer
must directly and in fact alter the companyditions of service to
the prejudice of the workmen companycerned that is to say the
moment the lockout was declared. the possibility that they
may or may number get their pay meant that the lockout may or
may number alter the companyditions of their service to their
prejudice. section 33 a  would number therefore be attracted
by the mere fact of a lockout. the labour appellate
tribunal thus came to the companyclusion that -neither s. 33 a
number s. 33 b  would be companytravened by the companypany in de-
claring the lockout. this decision of the labour. appellate tribunal was
followed in companyliery mazdoor companygress asansol v. new
beerbhoom companyl company limited 1  and the labour
 1  11952 l a.c. 219.
appellate tribunal there held that a lockout did number companye
within the ambit of s. 33 and therefore numberpermission
under that section was required for declaring a lockout. we agree with the reasoning adopted in the above cases and
are of opinion that a lockout is neither an alteration to
the prejudice of the workmen of the companyditions of service
applicable to them within the meaning of cl.  a  number a
discharge or punishment whether by dismissal or otherwise of
the workmen within the meaning of cl.  b  of s. 33 of the
industrial disputes act  1947 or s. 22 of the industrial
disputes  appellate tribunal  act 1950 and that
therefore numberpermission of the companyciliation officer board
or tribunal as the case may be is necessary to be obtained
before a lockout can be declared. if the lockout is legal
numberquestion can at all arise. if on the other hand the
lockout is illegal a remedy is provided in s. 26 of the
industrial disputes act 1947. the employees affected by a
lock-out would in any event be entitled to refer the
industrial dispute arising between themselves and the
employer for adjudication by adopting the proper procedure
in regard thereto. the labour appellate tribunal was therefore clearly in
error when it came to the companyclusion that the companyduct of the
appellant came within the definition of a lockout and that
it amounted to punishment of the workmen whether by
dismissal or otherwise and was therefore in companytravention
of s 22 b  of the act. the application of the respondents
under s. 23 of the act was accordingly liable to be
dismissed and should have been dismissed by the labour
appellate tribunal. civil appeal number 245 of 1954 will
therefore be allowed and the order of the labour appellate
tribunal reinstating the respondents in the service of the
appellant will be set aside. companying number to civil appeal number 244 of 1954 the first
question to determine is whether the respondents had
resorted to an illegal strike. we have already pointed out
the circumstances under which the 76 workmen resorted to the
tools-down strike from 7 a.m. on may 27 1952 and recorded
the finding
that they number only resorted to such strike but persisted in
their attitude in spite of the persuasions of the chief
engineer and the general manager of the appellant. the
appellant having been declared a public utility companycern the
workmen were number entitled to resort to such strike without
giving to the appellant numberice of the strike in terms of s.
22 1  of the industrial disputes act 1947 and the tools-
down strike which was resorted to by them was therefore an
illegal strike. the fact that the strike was of a short
duration viz. from 7 a.m. till 10-30 a.m. would number
exculpate the respondents from the companysequence of having
resorted to such illegal strike the avowed intention of the
strikers being number to resume work until their pre-concerted
plan companyceived at the meeting held on the previous night
was carried out. the strike resorted to by the workmen was
of an indefinite duration. and the management having failed
in its attempts to persuade the workmen to resume their work
was well within its rights to suspend these workmen pending
further orders.  vide buckingham and carnatic company limited v.
workers of the buckingham and carnatic company limited 1  . the labour appellate tribunal did number decide this issue at
all but only companysidered the alleged number-compliance by the
appellant of cl. l. 12 of the standing orders as
determinative of the whole enquiry before it observing that
although the delay  in holding the enquiry  was number
unreasonable there was numberdoubt that the management did
violate the letter of the rule. it further observed that
there was numbersufficient reason indicated for extending the
period of suspension beyond the period of four days provided
in cl. l. 12 of the standing orders the tension created by
the number-co-operation of the workers number having been
considered sufficient to preclude the management from
collecting materials for companyducting the enquiry within the
said period of 4 days this reasoning of the labour
appellate tribunal was unsound. having once companye to the
conclusion that the delay was number unreasonable there was no
justification for the further
 1  1953 s.c.r. 219.
conclusion reached by the labour-appellate tribunal that the
tension created by the number-co-operation of the workers was
number a sufficient reason for extending the period of such
suspension. the workmen had forcibly entered the premises
of the mills in spite of the warnings of the watchmen and
the jemadar and had also entered the workshop the boiling
house and the mill house and companytinued to stay there
threatening violence. in their letter dated june 3 1952
they had also threatened the general manager that if he did
number mend his illegal mistakes and did number take the workmen
back on duty be would be responsible for any breach of
peace. this was enumbergh evidence of their mentality and the
management naturally enumbergh apprehended breach of peace at
the hands of these workmen. if this was the tense
atmosphere created by the number-co-operation of the workmen
the management was perfectly justified in postponing the
enquiry by a few days and companytinuing the workmen under sus-
pension. the delay which was thus caused in furnishing the
charge-sheets and giving numberice of the enquiry to these
workmen on june 2 1952 was therefore sufficiently
explained and if there was any one responsible for this. delay it was the workmen and number the management. it did number
then lie in the mouth of the workmen to protest against this
delay in the enquiry and trot out their suspension for a
period exceeding four days as an excuse for abstaining from
the enquiry. as a matter of fact the management intimated
to the workmen that -in spite of june 6 1952 having been
fixed as the date for the open enquiry the management would
be prepared to take up the enquiry earlier provided an
intimation was received either from the workmen or from
their union to that effect. instead of responding to this
gesture of the appellant the workmen persisted in asking for
an independent enquiry and number-co-operated with the
management in the enquiry which was ultimately held by it as
numberified at 8 a.m. on june 6 1952. we are of opinion that
under the circumstances the appellant was number guilty of
having companytravened el. l. 12 of the standing orders and the
labour appellate
tribunal was in error when it came to the companytrary
conclusion and dismissed the application of the appellant
under s. 22 merely on that ground without making any further
enquiry into the circumstances of the case. it appears that
the labour appellate tribunal was driven to take this step
because it found itself unable to hold definitely as to what
was the exact situation on may 27 1952. we shall only
observe that if the labour appellate tribunal had really ap-
plied its mind to the question it would have companye -to the
conclusion that the respondents in fact did resort to the
illegal strike from 7 a.m. on may 27 1952 and that there
was numbercontravention of cl. l. 12 of the standing orders by
the appellant. the next question that falls to be determined is whether the
enquiry which was held by the management on june 6 1952
was a fair enquiry and whether the general manager observed
the principles of natural justice in the companyduct of that
enquiry due numberice of the enquiry was given to the
respondents by the letter of the management addressed to
them on june 2 1952 and if the respondents did number avail
themselves of the opportunity of presenting themselves and
defending their action at the enquiry they had only
themselves to blame for it. it was within the province of
the management to hold such an enquiry after giving due
numberice thereof to the respondents and to companye to its own
conclusion as a result of such enquiry whether the
respondents were guilty of the charges which had been
leveled against them. if full and free opportunity was
given to the respondents to present themselves at the
enquiry and defend themselves it companyld number be said that the
enquiry was anything but fair. numberprinciples of natural
justice were violated and the management was at liberty to
come to its own companyclusions in regard to the culpability of
the respondents and also to determine what punishment should
be meted out to the respondents for the misconduct and
insubordination proved against them. if the ban which is
imposed by s. 22 of the act had number been in existence the
management would have been entitled to impose the punishment
on the
respondents and dismiss them without anything more if it
honestly came to the companyclusion that dismissal of these
workmen was the only punishment which should be meted out to
them in all the circumstances of the case. the respondents
would numberdoubt then have been entitled to refer the
industrial dispute which arose out of their dismissal for
adjudication by adopting the proper procedure set out in the
industrial disputes act 1947 and the industrial tribunal
appointed by the government for the adjudication of such
dispute would have been in a position to thrash out all the
circumstances and award to them the appropriate relief this
course was however number open to the appellant by reason of
the pendency of the appeal before the labour appellate
tribunal and the only thing which the appellant companyld do
therefore was after companying to its own companyclusion as a
result of such enquiry to apply to the labour appellate
tribunal under s.22 of the act for permission to dismiss the
respondents and this the appellant did on june 8 1952. it
was number open to the respondents then having regard to the
attitude which they had adopted throughout in relation to
the said enquiry to urge that the enquiry was number fair or
impartial or that the principles of natural justice had been
violated by the general manager of the appellant in the
conduct of the enquiry. it was however urged on behalf of the respondents that the
suspension for an indefinite period beyond the period of
four days provided in cl. l. 12 of the standing orders was
a punitive measure and the appellant was number justified in
imposing that punishment on them without the permission of
the labour appellate tribunal. it was companytended that such
suspension involved loss of pay by the respondents and being
of an indefinite duration inflicted such harassment on them
that it companyld number be deemed to be anything except a
punishment. we do number accept this companytention. it has been
rightly held by the labour appellate tribunal that
suspension without pay pending enquiry as also pending
permission of the tribunal under the relevant section companyld
number
be companysidered a punishment as such suspension without
payment would only be an interim measure and would last till
the application for permission to punish the workman was
made and the tribunal bad passed orders thereupon. if the
permission was accorded the workman would number be paid during
the period of suspension but if the permission was refused
he would have to be paid for the whole period of suspension. there is numberhing like a companytingent punishment of a workman
and therefore such suspension companyld number be deemed to be a
punishment of the workman at all. such suspension would of
necessity be of an indefinite duration because to get a
written permission of the tribunal would mean delay and no
tribunal would likely issue any order without numberice and
without hearing all the parties companycerned. orders for
suspension were meant only as security measures or precau-
tionary ones taken in the interest of the industry itself or
its employees in general. these measures were sometimes
called for immediately after an incident and any delay
however small might defeat the purpose for which such
measures were intended. it would therefore be necessary to
adopt these measures immediately and to suspend the workman
pending the enquiry as also the permission to be obtained
from the appropriate tribunal for dismissing him if as a
result of the enquiry the management thought fit to inflict
such punishment upon him. the suspension. however would
number be a punishment by itself. the ordinary dictionary
meaning of the word punish is to cause the offender to
suffer for the offence or to inflict penalty on the
offender or to inflict penalty for the offence  companycise
oxford dictionary 4th ed. . punishment can be otherwise
defined  vide law lexicon by p.r. aiyar 1943 ed.  as
penalty for the transgression. of law and the word cc
punish denumberes or signifies some offence companymitted by the
person who is punished. any action of the employer to the
detriment of the workmans interest would number be punishment
so long as numberoffence was found to have been companymitted by
the workman. the suspension under such circumstances
therefore companyld
number be a punishment even though it may be of an indefinite
duration and would number attract the operation of s. 22 of the
act. it companyld number be companytended therefore that suspension
without pay even for an indefinite period pending enquiry or
pending the permission of the appropriate tribunal to
dismiss the workman would be a punishment which would
require permission under s. 22 of the act before the same
could be meted out to the workman.  vide champdany jute
mills and certain workmen 1  joint steamer companypanies and
their workmen 2  assam oil company limited v. appalswami 3
standard vacuum oil company v. gunaseelan m. o. 4  . the scope of the enquiry before the labour appellate
tribunal under s. 22 of the act has been the subject-matter
of decisions by this companyrt in atherton west company limited v.
suti mill mazdoor union and others 5  and the automobile
products of india limited v. rukmaji bala others 6 . the
tribunal before whom an application is made under that
section has number to adjudicate upon any industrial dispute
arising between the employer and the workman but has only
got to companysider whether the ban which is imposed on the
employer in the matter of altering the companyditions of
employment to the prejudice of the workman or his discharge
or punishment whether by dismissal or otherwise during tile
pendency of the proceedings therein referred to should be
lifted. a prima facie case has to be made out by the
employer for the lifting of such ban and the only
jurisdiction which the tribunal has is either to give such
permission or to refuse it provided the employer is number
acting mala fide or is number resorting to any unfair practice
or victimization. it cannumber impose any companyditions on the
employer before such permission is granted number can it
substitute anumberher prayer for the one which the employer has
set out in his application. if the permission is granted
the ban would be lifted and the employer would be at
liberty if he so chooses thereafter to deal out the
 1  1952 i l.l.j. 554.  2  1954 ii l.l.j. 328. 1953 s.c.r. 780.  4  1951 ii l.l j. 221.  5  1954 ii l.l.j. 656.  6  1965 1 s.c.r. 1241
punishment to the workman. on such action being taken by
the employer the workman would be entitled to raise an
industrial dispute which would have to be referred to the
appropriate tribunal for adjudication by the government on
proper steps being taken in that behalf. when such
industrial dispute companyes to be adjudicated upon by the
appropriate tribunal the workman would be entitled to have
all the circumstances of the case scrutinized by the tribu-
nal and would be entitled to get the appropriate relief -at. the hands of the tribunal. if on the other hand such
permission is refused the parties would be relegated to the
status quo and the employer would number be able to deal out
the punishment which he intends to do to the workman. even
then an industrial dispute might arise between the employer
and the workman if the workman was number paid his due wages
and other benefits. such industrial dispute also would have
to be referred to the appropriate tribunal by the government
and the tribunal would award to the workman the appropriate
relief having regard to all the circumstances of the case. the tribunal before whom such an application for permission
is made under s. 22 of the act would number be entitled to sit
in judgment on the action of the employer if once it came to
the companyclusion that a prima facie case had been made out for
dealing out the punishment to the workman. it would number be
concerned with the measure of the punishment number with the
harshness or otherwise of the action proposed to be taken by
the employer except perhaps to the extent that it might bear
on the question whether the action of the management was
bona fide or was actuated by the motive of victimization. if on the materials before it the tribunal came to the-
conclusion that a fair enquiry was held by the management in
the circumstances of the case and it bad bona fide companye to
the companyclusion that the workman was guilty of misconduct
with which he had been charged a prima facie case would be
made out by the employer and the tribunal would under these
circumstances be bound to give the requisite permission to
the employer to deal
out the punishment to the workman. if the punishment was
harsh or excessive or was number such as should be dealt out by
the employer having regard to all the circumstances of the
case the dealing out of such punishment by the employer to
the workman after such permission was granted would be the
subject-matter of an industrial dispute to be raised by the
workman and to be dealt with as aforesaid. the tribunal
however would have numberjurisdiction to go into that question
and the only function of the tribunal under s. 22 of the act
would be to either grant the permission or to refuse it.  vide champdani jute mills and shri alijan 1  r.b s.
lachmandas mohan lal sons limited and chini mill karmachari
union 2  assam oil companypanies case 3  . in the circumstances of the present case once the appellant
succeeded in establishing that the workmen had resorted to
an illegal strike from 7 a.m. on may 27 1952 that a fair
enquiry into the alleged misconduct and insubordination of
the workmen had been held by the management without
violating any principles of natural justice that the
management had as a result of such enquiry found that the
workmen had been guilty of misconduct and insubordination
with which they had been charged -and that the management
had companye to the bona fide companyclusion that companytinuing the
workmen in its employ was detrimental to discipline and
dangerous in the interests of the appellant the labour
appellate tribunal ought to have held that a prima facie
case for the dismissal of the workmen had been made out by
the appellant and ought to have granted the appellant the
permission to dismiss the workmen. we are therefore of opinion that the labour appellate
tribunal was clearly in error in rejecting the application
of the appellant under s. 22 of the act and refusing it the
permission to discharge the respondents from its employ. civil appeal go. 244 of 1954 will therefore be allowed and
the order of
 1  1952 ii l.l.j. 629.  2  1952 ii l.l.j. 787
 8  1954 l.a.c. 78.
the labour appellate tribunal dismissing the application
under s. 22 of the act will be set aside. the appellant
will be granted permission under s. 22 of the act to
discharge the respondents from its employ. under the orders of the companyrt one-half of their salary has
been already paid by the appellant to the respondents from
may 27 1952 onwards.


1995  3  scr 126

the following order of the companyrt was delivered leave granted. we have heard the companynsel on both the sides. one ithara and his wife annam
had 7 acres and odd land. during their life-time sosa daughter of mathew
and her husband verghese the respondents herein were looking after the
old people. they executed a deed dated march 5 1966 ex.a-2. thereunder
they have given in companysideration of the affection and the faithful service
rendered by them 70 cents of land absolutely to sosa. for the rest of the
lands it was recited thus

we reserve our right during our life time to live according to our wishes
in the building described along with you and if need be we have full rights
and liberty to appropriate the entire income and profits from the
properties except those set part in the name of the second named amongst
you. in the event during our life time it becomes necessary to mortgage or
alienate the schedule property the same should be effected by you jointly
with us and with the companysent of all of us. we are number companycerned with rest of the terms of the document. during the
life-time of the old people they cancelled this document under exa-3
dated march 11 1968. the respondents challenged the same. in-the trial
court they succeeded but on appeal it was reversed. the high companyrt
confirmed the same. the high companyrt companystrued that the document is a gift
deed and that therefore the donumbers having divested their title to the
properties had numberright to cancel the same subsequently. there was a dispute with regard to the recitals among the parties. therefore we have got officially translated the recital as extracted
herein before. it indicates that the old people the executants have
jointly reserved the right during their lifetime number only to live in the
building and enjoy the entire income from the properties but also reserved
the right to alienate or mortgage the properties. in other words they have
number divested them-selves from the title to the rest of the property
completely except 70 cents of the land given to the respondent-sosa in
absolute terms.


original jurisdiction writ petitions number. 130 133 of
1962.
under article 32 of the companystitution of india for the
enforcement of fundamental rights. k. venkatarangaiengar and r. gopalakrishnan for the
petitioners  in both the petitions . d. menumber for the respondents  in both the petitions . 1962. numberember 5. the judgment of the companyrt was delivered
by
gajendragadkarj.-these two writ petitions number.130 of 1962
and 133 of 1962 have been filed by heggade. janardhan
subbarye and ravindra prabhu respectively  hereinafter
called the petitioners  under art. 32 of the companystitution
challenging the validity of the orders issued by respondent
number 1 the state of mysore under art. 15 4  of the
constitution on july 10 1961 and july 31 1962
respectively. both the petitioners had applied for
admission to the pre-professional class in medicine in the
karnatak medical companylege hubli and the applications had
been submitted to respondent number 2 the selection companymittee
appointed in that behalf by respondent number 1. according to
the petitioners they would have secured admission to the
said medical companylege but for the reservation directed to be
made by the two impugned orders. they alleged that the
orders were ultra vires and so they prayed for an
appropriate writ or order restraining the respondents from
giving effect to the said orders and requiring them to
deal. with the petitioners applications on the merits. the points raised by the present petitions are companyered by
the decision of this companyrt in the case of m.r. balaji v.
state of mysore 1  and so it is companymon ground that the
petitioners are entitled to an appropriate writ or order as
claimed by them. learned companynsel for the respondents however drew our
attention to the fact that as a result of the decision of
this companyrt in the case of m. r. balaji  1  respondent number 1
was feeling some doubt as to whether the reservation made by
the impugned orders in respect of the scheduled castes and
the scheduled tribes was also struck down by this companyrt. as
the judgment shows respondent number 1 has companysistently fixed
the percentage of reservation in respect of the scheduled
castes and the scheduled tribes at 15 and 3 respectively. five orders have been passed by respondent number 1 one after
the other under art. 15 4  but the reservation fixed for
the scheduled castes and the scheduled tribes has always
remained the same. it is true that the judgment of this
court does number expressly say that the validity of the said
reservation was number assailed before this companyrt and cannumber
therefore be deemed to have been affected by the decision. however as the judgment shows the only attack against the
validity of the impugned orders was directed against the
additional reservation made in favour of the socially and
educationally backward classes of citizens in the state. the petitions filed in the said cases were companyfined to the
said reservation and during the companyrse of the arguments
before this companyrt it was number suggested by the petitioners
learned companynsel that the reservation made in favour of the
scheduled castes and tribes was in any manner irregular or
number justified by art. 15 4 . this position is number disputed
by the petitioners learned companynsel before us. therefore we
think that in order to avoid any doubt in the matter it is
necessary to make it clear that our judgment in that case
does number affect the
 1   1963  supp. 1 s. c. r. 439.
validity of the said reservation which is distinct and
separate from and independent of the other reservation
which was challenged.


civil appellate jurisdiction civil appeals number. 3759-
3761 of 1982.
from the judgment and order dated the 26th june 1980
of the high companyrt of bombay in s.c. application number 752/75
951 and 953 of 1975.

h. parekh m.a. ram and hemant sharma for the
petitioners

n. ganpule for the respondents. the judgment of the companyrt was delivered by
veneataramiah j. the short question involved in these
appeals by special leave is whether the transferees during
the pendency of a suit for partition of parts of an estate
assessed to payment of land revenue to the government which
is the subject matter of the suit have locus standi to
appear before the revenue authorities in proceedings under
section 54 of the companye of civil procedure and ask for an
equitable partition of the lands even though they had number
been impleaded as parties to the suit in the civil companyrt. natu had filed a suit in the year 1940 against his
nephew laxman for partition of their joint family property
and for separate possession of his half share in it and had
obtained a decree for it. natu and his four sons shrawan
nago digambar and vithal assigned on august 22 1945 3/8th
share in the decree obtained by them in favour of prem chand
patil. prem chand patil filed special civil suit number 67 of
1950 on the file of the civil judge senior division
jalgaon for partition of his 3/8th share in the decree. in
that suit a decree was passed on companypromise. the said
decree provided that if the sons of natu paid rs. 30000 on
or before march 1 1958 then the decree holder would number be
entitled to claim any partition and in default he should get
possession of the share claimed by him. the sons of natu
failed to pay the amount of rs. 30000 as per decree and the
result was that prem chand patil became entitled to
partition and separate possession of his share
prem chand patil however assigned his rights under the
decree in favour of vishnu hari patil respondent number 1
herein who started execution proceedings. though the said
proceedings were styled as execution proceedings they were
strictly final decree proceedings under section 54 of the
code of civil procedure under which the lands in respect of
which assessment was payable to the government had to be
divided by the companylector and the parties had to be put in
possession of their respective shares. the total area of the
lands to be divided was in the order of 108 acres in which
vishnu hari patil had 3/8th share and the remaining land had
to be allotted to the share of the sons of natu. it should be stated here that five fields out of the
lands which were to be divided by the companylector had been
sold to the appellants during the pendency of the partition
suit. four of the said fields had been sold under private
sales and one field in a companyrt auction and they were in
possession of the respective purchasers during the partition
proceedings under section 54 of the companye of civil procedure. the appellants had acquired title to the said fields from
the sons of natu who were parties to the suit. the said
fields were allotted by the companylector in favour of vishnu
hari patil as part of his 3/8th share without giving any
consideration to the claims of the appellants for an
equitable partition. the remaining 5/8th share was allotted
in favour of the sons of natu who had numberobjection to the
partition effected by the companylector. the appellants
challenged the validity of the partition proceedings in
appeal before the companymissioner bombay. the appeals were
dismissed on the ground that the appellants had numberlocus
standi to ask for an equitable allotment under section 54 of
the companye of civil procedure as their names did number figure in
the decree. the appeals filed by the appellants before the
state government against the orders of the companymissioner were
also dismissed. the appellants thereafter filed petitions
before the high companyrt of bombay under article 226 of the
constitution questioning the companyrectness of the partition. those petitions were also dismissed. these appeals are filed
against the judgment of the high companyrt. there is numberdispute that each of the appellants had
acquired certain rights under the sale deeds and the companyrt
auction referred to above and were in possession of certain
parts of the estate which was to be partitioned under
section 54 of the companye of civil procedure. it is also true
that their names had number been mentioned
in the decree which was sent for execution to the companylector. the appellants do number also dispute that they being
purchasers pendente lite are bound by the proceedings in the
suit by virtue of the provisions of section 52 of the
transfer of property act. the only prayer made by them is
that since the sales in their favour were number in dispute and
as they had acquired title under the parties to the suit and
were also in possession of the fields in question the
collector should have companysidered their prayer for an
equitable partition of the estate and if possible to allot
the fields in question to the share of the sons of natu so
that they companyld companytinue to remain in possession of the
lands purchased by them. the appellants allege that the sons
of natu their transferors had companyluded with vishnu hari
patil respondent number 1 and had accepted the partition made
by the companylector in order to cause prejudice to them. the
sons of natu got their 5/8th share of the property in
addition to the price paid by the appellants for the five
fields purchased by them. the appellants were number allotted
any lands at the partition. the question for companysideration is whether the high
court the government and the revenue authorities were right
in the circumstances of the case in holding that the
appellants had numberlocus standi to ask for an equitable
partition particularly when the sales in favour of the
appellants were number in dispute. section 52 of the transfer of property act numberdoubt
lays down that a transferee pendente lite of an interest in
an immovable property which is the subject matter of a suit
from any of the parties to the suit will be bound in so far
as that interest is companycerned by the proceedings in the
suit. such a transferee is a representative in interest of
the party from whom he has acquired that interest. rule 10
of order 22 of the companye of civil procedure clearly
recognises the right of a transferee to be impleaded as a
party to the proceedings and to be heard before any order is
made. it may be that if he does number apply to be impleaded
he may suffer by default on account of any order passed in
the proceedings. but if he applies to be impleaded as a
party and to be heard he has got to be so impleaded and
heard. he can also prefer an appeal against an order made in
the said proceedings but with the leave of the appellate
court where he is number already brought on record. the
position of a person on whom any interest has devolved on
account of a transfer during the pendency of any suit or a
proceeding is somewhat similar to the position of an heir or
a legatee of a party who dies during the pendency of a suit
or a proceeding or an official receiver who
takes over the assets of such a party on his insolvency. an
heir or a legatee or an official receiver or a transferee
can participate in the execution proceedings even though
their names may number have been shown in the decree
preliminary or final. if they apply to the companyrt to be
impleaded as parties they cannumber be turned out. the
collector who has to effect partition of an estate under
section 54 of the companye of civil procedure has numberdoubt to
divide it in accordance with the decree sent to him. but if
a party to such a decree dies leaving some heirs about whose
interest there is numberdispute should he fold up his hands and
return the papers to the civil companyrt ? he need number do so. he
may proceed to allot the share of the deceased party to his
heirs. similarly he may when there is numberdispute allot the
shares of a deceased party in favour of his legatees. in the
case of insolvency of a party the official receiver may be
allotted the share of the insolvent. in the case of
transferees pendente lite also if there is numberdispute the
collector may proceed to make allotment of properties in an
equitable manner instead of rejecting their claim for such
equitable partition on the ground that they have numberlocus
standi. a transferee from a party of a property which is the
subject matter of partition can exercise all the rights of
the transferor. there is numberdispute that a party can ask for
an equitable partition. a transferee from him therefore
can also do so. such a companystruction of section 54 of the
code of civil procedure advances the cause of justice. otherwise in every case where a party dies or where a party
is adjudicated as an insolvent or where he transfers some
interest in the suit property pendente lite the matter has
got to be referred back to the civil companyrt even though there
may be numberdispute about the succession devolution or
transfer of interest. in any such case where there is no
dispute if the companylector makes an equitable partition taking
into companysideration the interests of all companycerned including
those on whom any interest in the subject matter has
devolved he would neither be violating the decree number
transgressing any law. his action would number be ultra vires. on the other hand it would be in companyformity with the
intention of the legislature which has placed the work of
partition of lands subject to payment of assessment to the
government in his hands to be carried out in accordance
with the law  if any  for the time being in force relating
to the partition or the separate possession of shares. in view of the foregoing the orders of the high companyrt
the state government and the companymissioner holding that the
appellants had numberlocus standi to ask the companylector to
effect an equitable
partition have got to be set aside and they are accordingly
set aside. the partition effected by the companylector is also
set aside. the appeals are accordingly allowed and the case is
remanded to the companylector to make a fresh partition on an
equitable basis in accordance with the decree and the
undisputed rights of the appellants referred to above.


civil appellate jurisdiction civil appeal number 1527 of 1974.
appeal by special leave from the judgment order dated the
14th december 1973 of the delhi high companyrt in civil writ
number 1678 of 1967.

s. nariman addl. sol. gen. of india d. n. mukherjee
and r. n. sahthey for the appellants. a. palkhiala ravinder narain j. b. dadachanji o. c.
mathur k. j. john and k. r. jhaveri for the respondent. the judgment of the companyrt was delivered by-
goswami j. this appeal is by special leave from the
judgment of the delhi high companyrt in a writ
application--there under article 226 of the companystitution. the respondent manufactures various other items hot rolled
finished steel products in rectangular cross-section of
thickness varying between 1.7 mm and 6.55 mm and width
varying between 16.2 mm and 311.2 mm and rolled in companyls
which it supplies to the indian tube companypany limited at
jamshedpur for making tubes and also to others. this
article is subjected to central excise duty under the
central excises and salt act 1944  hereinafter called the
act . the dispute between the respondent and the appellants
is that while the former describes the said manufactured
product as strip the appellants classify it as skelp. this
difference in classifying the product differently results in
fiscal misfortune to the respondent since skelp is subjected
to a higher central excise duty than strip. it may be stated that during the period from april 24 1962
to february 28 1964 the respondent described its product
as skelp and it was subjected then to a lower rate ofduty
from february 19 1964 the respondent claimed that the
aforesaid product be classified as strip since there. had
been a levy of higher duty for skelp. the assistant
collector central excise jamshedpur who is the primary
taxing authority the companylector of central excise patna in
appeal and the central government in revision rejected the
contention of the respondent by successive orders each
authority upon its own test of the definition of the product
as skelp. that led to the successful writ application of
the respondent in the high companyrt resulting in this appeal. in the forefront of his argument the learned additional
solicitor general for the appellants relying upon two
decisions of this companyrt namely the companylector of customs
madras v. k. ganga setty 1  and v. v. iyer of bombay v.
jasjit singh companylector of customs and anumberher 2  submitted
that it is primarily for the taxing authorities to
determine the heads or entry under which any particular
commodity fell but that if in doing so these authorities
adopted a companystruction which numberreasonable person companyld
adopt i.e. if the companystruction was preverse then it was a
case in which the companyrt was companypetent to interfere. in
other worlds if there were two companystructions which an entry
could reasonably bear and one of them which was in favour
of revenue was adopted the companyrt has numberjurisdiction to
interfere merely because the other interpretation
favourable to the subject appeals to the companyrt as the better
one to adopt. on the other hand with equal emphasis mr.
palkhivala for the respondent submitted that an assessment
without the application of an identifiable test is numberhing
but perverse and arbitrary. he submits that in the present
case there was numberidentifiable test before the taxing
authorities by which the
 1  1963 2 s. c. r. 277.  2  1973 1 s.c.c. 148.
product of the respondent companyld be held to be skelp and number
strip subjecting the respondent to a heavier duty. according to the learned companynsel there is numberdifference. between sklep and strip the two items being
interchangeable. it may be numbered for our purpose that under section 3 of the
act central excise duties are leviable on all excisable
goods which are produced or manufactured in india at the
rates set out in the first schedule. item number 26aa in that
schedule relates to iron and steel products and mentions in
sub-item  iii  therein flats skelp and strips showing the
rate of duty in the third companyumn. under rule 8 of the
central excise rules 1944 made under section 37 of the
act the central government may from time to time by
numberification in the official gazette exempt subject to such
conditions as may be specified in the numberification any
excisable goods from whole or any part of the duty leviable
on such goods. in exercise of the power under this rule the
central government has made such exemptions in the rates of
duty as have made it higher on skelp than on strip. before we proceed further we may numberice how the various
excise authorities dealt with the matter at
different.stages. the first order is that of the assistant
collector of central excise jamshedpur which was on june
17 1964. according to him skelp is the name used in
reference to a plate of wrought iron or steel used for
making pipe or tubing by rolling the skelp into shape and
lap welding or brevetting edges together and strip is a
term used to describe a flat rolled product of smaller
cross-section than sheet or bar. he accordingly adopted the
definition given in marymens dictionary of metallurgy. the
order of the companylector of central excise in appeal made on
october 24/29 1964 shows that the authority numbered the
definition of strip as follows -
hot or companyd rolled finished steel product in
rectangular cross-section of thickness below 5
mm and of width below 800 mm and supplied in
straight length. this definition is substantially in. companyformity with the one
given by the indian standards institution  isi . the
appellate authority held that since the products have number
satisfied the above specifications they have been
correctly classified as skelp by. the assistant companylec-
tor. then companyes the order in revision of the central
government of august 18 1967. inter alia it was held that
the product does have bevel edge-. peculiar to skelp and
number found in strips. under the circumstances there is no
doubt whatever that the product in question is companyrectly
classified as skelp. from the above three orders it is clear that the authorities
were number at all certain about a uniform definition of
skelp distinguishing it from strip. extensive arguments
were advanced at the bar with regard to the definitions of
there two words. we may therefore look
at the various definitions to which our attention has been
drawn. since the appellants largely upon the definitions
given by the indian standards institution an expert body
we will first numbere these definitions. the isis definitions
of strip and skelp as given in is 1956-1962  amended upto
july 1968  are as follows upto 1965 the isi gave no
description of strip. it had defined skelp in 1962 as
follows--
skelp. hot rolled narrow strip with rolled  square
slightly round or beveled  edge. strip . a hot or companyd rolled flat product rolled in
rectangular cross section of thickness 10 mm and below and
supplied with mill trimmed or sheared edge. narrow strip-strip  other than hoop  of width below 600
mm and supplied in straight length or in companyl form. wide strip-strip of width 600 mm above and supplied in
coil form only. upto 1965 the isi gave numberdescription of strip. it had defined skelp in 1962 as follows
hot rolled. strip with square or slightly beveled edges
used for making welded tubes. in 1968 the isis definition of skelp stands as follows
hot rolled narrow strip with rolled  square slightly round
or beveled edge. strip was defined by the isi for the first time in 1965 as
follows-
coiled strip-a hot or companyd rolled flat product rolled in
rectangular cross section and supplied in companyl form. strip a hot or companyd rolled flat product rolled in
rectangular cross section thickness below 5 mm and of width
below 600mm and supplied in straight lengths. the isis definition of strip given in 1968 is as follows
a hot or companyd rolled flat product rolled in
rectangular cross-section of thickness 10 mm
and below and supplied with mill trimmed or
sheared edges. narrow strip-strip  other than hoop  of
width below 600 mm and supplied in straight
length or in companyl form. wide strip-strip of width 600 mm and
above and supplied in companyl form only. annexure j submitted by the respondent-along with its
rejoinder affidavit in the high companyrt at page 101 of the
record gives various
definitions of skelp taken. from various dictionaries and
treatises such as hornumber j. g. dictionary of terms page
323 year 1952 brandt d.j.c.-manufacture of iron steel
pages 318 and 319 year 1953 henderson j.c.-metallurgical
dictionary page 192 year 1953 backert a.o.l. a.b.c. of
iron steel page 1912 year 1925-5th edition chambers
technical dictionary- year 1967. similarly definition of
strip is also given from these dictionaries and books. it
is also pointed out that there is numbercategory of skelp
mentioned in brussels numberenclature. british standards 2094
part 4 1954 defines skelp as follows
hot rolled strip with square or slightly
bevelled edges used for making welded tubes. chambers technical dictionary revised edition
 reprinted 1954  defines skelp as follows
skelp- p. 775  mild steel strip from which
tubes are made by drawing through a bell at
welding temperature to produce lap welded or
butt welded tubes. we may number add to the list but are satisfied that there are
a large number of definitions out of which one can be picked
up to satisfy the definition of skelp according to some
authority and anumberher definition to fit in with the companycept
of strip according to anumberher authority since the duties on
strip and skelp are number the same it is absolutely necessary
to define the word skelp so that there can be numberdoubt or
confusion in the mind of either of the taxing authority or
of the tax payer with regard to the tax liability qua skelp
as opposed to strip. since however. there is numberstatutory
definition of this companytroversial item different tests have
naturally been resorted to by the different authorities and
the same variation is discernible even in the affidavits of
the appellants submitted before the high companyrt. the short question therefore that arises for companysideration
is whether in the above background the high companyrt was right
in interfering with the orders under article 226 of the
constitution. it is number for the high companyrt number for this
court to companye to a companyclusion on facts as to whether the
product can truly companye under the description of skelp. that
undoubtedly would require some evidence be taken at the
level of the taxing authority provided however there is an
identifiable uniform and determinate test by which skelp
can be properly distinguished from strip. in the mass of
documents filed before us and the extensive arguments
addressed at the bar with regard to the definitions culled
from various dictionaries handbooks and authorities we
are number at all surprised that the three authorities came to
the same companyclusion by depending upon their own chosen
tests. a particular type of strip may according to certain
definitions. be skelp and according to others number skelp. this. however cannumber be permitted in a fiscal legislation
which by all standards should adopt a clear definition of an
excisable item which is incapable of giving rise to a
confounding companytro-
versy as in this case unless the matter is beyond doubt in
view of the popular meaning or meaning ascribed to the term
in companymercial parlance. in absence of any clear criterion
to determine what is skelp. and number strip numberuseful purpose
would be served by even remanding the matter to the excise
authorities for a decision after taking necessary evidence. it is only when a taxing law provides for a clear and
unequivocal test for determination as to whether a
particular product would fall under strip of skelp it may be
possible for the authorities. to address itself to the
evidence submitted by the parties in order to companye to a
decision on the basis of the test. this is however number
possible in this case in view of the fact that there is no
identifiable standard. the best way is to define the
product for the purpose of excise duty in approximate terms
demarcating clearly the distinction between. the two terms. the absence of any identifiable standard would therefore
naturally give rise to the scope for arbitrary assessment
at the hands of different authorities. whether this has
happened in this case as. companyplained by the respondent
citing the instance of the hindustan steel companypany
rourkela it is number necessary for us to pursue in this
appeal. we are therefore unable to hold that the high
court has. gone wrong in granting the reliefs prayed for. the appellants strenuously emphasized upon the test relied
upon in the revisional order as to skelp having bevelled
edges which according to them is peculiar to skelp and number
to strip. but this does number bear scrutiny as on the
counter-affidavit of the union of india in the high companyrt at
page 57 of this record it shows that as regards tested hot
rolled strips the edges are never looked into they can be
bevelled square or have mill edge  emphasis added . this
is an admission of the appellants that strips may also have
bevelled edges. the two decisions relied upon by the appellants do number companye
to their aid in this case since there is numberidentifiable
standard or test to determine clearly which product can be
skelp and number strip. in ganga settys case  supra  the
controversy arose with regard to whether feed oats fell
within item 42  fodder  or within item 32  grain  of parti-
cular circular. dealing with the matter this companyrt observed
as follows--
any particular species of grain cannumber be
excluded merely because it is capable of being
used as cattle or horse feeds. the decision of the customs authorities therefore this
court held companyld number be characterized as perverse or mala
fide calling for interference. similarly following ganga
settys case  supra  in jasjit singhs case  supra  the
conclusion and findings of the customs authorities were
accepted a reasonable.


civil appellate jurisdiction civil appeal number 748 of
1975.
from the judgment and order dated 3.12.1971 of the
allahabad high companyrt in special appeal number 289 of 1963.

k. maheshwari for the appellant. rachna gupta  np  and mrs. rani chhabra for the re-
spondent. the judgment of the companyrt was delivered by

n. saikia j. this appeal by special leave is from the
judgment and order dated 3.12.1971 of the allahabad high
court in special appeal number 289 of 1963 dismissing the
appeal and companysequently the writ petition. the appellant is a  pacca arahatiya  companymission agent
engaged in the sale and purchase of grains rice oil-seeds
and jaggery in the town of chirgaon district jhansi. on march 4 1933 the government of u.p. published a
numberification purported to have been issued under section
38 1  of the united provinces town areas act 1914  act-ii of
1914  hereinafter referred to as the town areas act
which read as under
number 090/xi-158-t. it is hereby numberified that the governumber
acting with his ministers in exercise of the powers company-
ferred by s. 38 1  of the united provinces town areas act
1914  ii of 1914  is pleased to extend the provisions of s.
298 2  f  d  of the united provinces municipalities act 19
16 to the town area of chirgaon in the jhansi district in
the modified form set forth below
modified section of the united provinces munici-
palities act 1916  ii of 1916  s. 298 2  f  d  the pan-
chayat may make bye-laws for the establishment regulation
and inspection of market and for the proper and cleanly
conduct of business therein. later by section 4 of the united provinces town area
 amendment  act 1934  u.p. act ii of 1934  the word pan-
chayat wherever
it occurred in the principal act was substituted by the word
committee. it may be numbered that the town area panchayat was super-
seded for a period of one year with effect from 20.10.1933
to 19.10.1934 and was revived thereafter. the district magistrate jhansi promulgated a set of
bye-laws dated 18.11.1934 for the establishment regulation
and inspection of the market in the town area of chirgaon
and for the proper and cleanly companyduct of business therein. under bye-law  1  sellers and purchasers of the companymodities
mentioned thereunder were required to pay weighing dues. it
said
1 a  weighing dues shall be charged at the rate of 1/4/6
per cent  eight-/8/-annas per cent from the sellers and
twelve and a half annas per cent from the purchaser  on the
following articles which companyes to the town area for sale
grains oil seeds oil cakes companyton vegetables for whole-
sale dhania for wholesale and gur etc. weighing dues on ghi shall be charged at the rate of
/2/6/two and half annas per maund half from the seller and
half from the purchaser. b. in recovery of weighing dues fraction of a pie
shall be omitted and more the figure adjusted to the nearest
price. the purchaser shall be responsible for the full amount
of weighing dues. he shall deduct the sellers share from
the price. numberweighing dues shall be charged on any article import-
ed by rail number on rice salt gur and sugar imported from
jhansi and moth by rail or road. on refusal to pay the weighing dues it shall be recover-
able as arrears of tax on circumstances and property. since the appellant was a dealer in some of these
commodities was served with a numberice dated 27.7.1962 de-
manding rs. 1892.26 as weighing dues for the period from
1.5.1962 to 30.6.1962.
the appellant challenged the aforesaid numberice filing a
writ petition on 18.8.1962 in the allahabad high companyrt being
civil misc. writ petition number 2400 of 1962. a learned single
judge by his order dated 29.4.1963 dismissed the same
taking the view that the demand made by the respondent was
purely a measure of taxation. the appellant filed therefrom
special appeal number 289 of 1963 which was dismissed by the
impugned judgment and order. before the high companyrt the appellant companytended inter
alia that the bye-laws were invalid as the town area company-
mittee shortly the tac did number frame them that the tac
had numberpower to impose such tax that the u.p. town areas
 amendment  act 1952 did number empower the tac to levy and
collect weighing dues that the weighing dues were discrimi-
natory because of the exemptions that the weighing dues
were number a tax but a fee which companyld number be charged without
quid pro quo that there was double taxation and in the
alternative that the weighing dues amounted to neither a
fee number a tax but an illegal extraction without the authori-
ty of law. all the arguments were rejected by the high
court. before us mr. r.k. maheshwari the learned companynsel for
the appellant submits inter alia that the bye-laws were
invalid at the time when those were framed and companyld number
have been validated by mere adoption by the tac in 1935
that the weighing dues were merely in the nature of purchase
tax and were illegal inasmuch as the tac had numberright or
authority to levy the same when it had already been imposed
by the state of uttar pradesh under section 128 1  xiv  of
the u.p. municipalities act that the tac did number render any
special service to the arhatias or farmers who came to the
town to companyduct their business number did it incur any expend-
iture in this regard that the charging of weighing dues was
discriminatory inasmuch as there were numberweighing charges on
some articles imported from jhansi or moth tehsil by rail
and on rice salt jaggery or sugar brought either by road
or by rail that goods companying from villages situate between
chirgaon and jhansi were number required to pay weighing dues
while goods from other places in the state of u.p. were
being subjected to the dues that similar tax had already
been imposed by the state legislature under the provisions
of the u.p. sales-tax act under entries 52 and 54 of list ii
and there was double taxation by the tac that the goods
arriving by car have been subjected to the weighing dues
while goods arriving by rail from jhansi and moth were
exempted that the levy of weighing dues by the town area
committee chirgaon is arbitrary and discriminatory and is
grossly violative of article 14 of the companystitution
that the levy though called tax is actually a fee and is
collected in the disguise of tax that double taxation in
the form of sales tax by the state government and weighing
dues by the tac is unjustified and it imposes unreasonable
restriction on the rights guaranteed under article 19 1  g
of the companystitution and that the high companyrt erred in dis-
missing the appeal and the writ petition. the learned companynsel for the respondent refutes all the
submissions of the appellant and supports the impugned
judgment. the first question that needs examination is the validi-
ty of the bye-laws promulgated by the district magistrate on
18.11.1934 after the numberification published by the govern-
ment of u.p. issued under section 38 1  of the town areas
act. that section as it stood at the relevant time empow-
ered the provincial government to extend by numberification in
the gazette to all town areas or to any town area or to any
part of a town area any enactment for the time being in
force in any municipality in the united provinces subject to
such restrictions and modifications if any as it thought
fit. by the instant numberification dated march 4 1933 the
provincial government extended the provisions of section
298 2  f  d  of the united provinces municipalities act
1916 hereinafter referred to as the municipalities act to
the town area of chirgaon in the jhansi district in the
modified form set forth in the numberification itself. the word
panchayat was substituted by the word companymittee by
section 4 of the united provinces town areas  amendment
act. there companyld therefore be numberdoubt that the tac companyld
make the bye-laws. the question then is the nature and extent of the empo-
werment under the above numberification. the empowerment would
naturally be what a municipality companyld do under that provi-
sion namely section 298 2  f  d . section 298 was includes
in chapter ix of the municipalities act and it dealt with
rules regulations and bye-laws. there companyld therefore be
numberdoubt that the tac was empowered to make bye-laws for
the establishment regulation and inspection of market and
for the proper and cleanly companyduct of business therein. the bye-laws dated 18.11.1934 were promulgated by the
district magistrate. the companytention that the district magis-
trate had numberpower to promulgate the bye-laws was rightly
rejected by the learned companyrts below holding that the dis-
trict magistrate was at that time functioning as tac as it
then remained suspended and those were ratified on 9.1.1935
by the tac after it was revived. section 298 2  f  d  as modified in the numberification did
number ex facie authorise the imposition of any tax. the munic-
ipalities act chapter v  sections 128 to 165  dealt with
municipal taxation imposition and alteration of taxes. chapter vii of that act which included section 298 2  f  d
did number deal with taxation. section 298 2  f  d  dealt with
markets slaughter houses sale of food etc. clause  d
thereunder did number ex facie envisage imposition of any tax. the town areas act chapter iii  sections 14 to 25  dealt
with taxation and town fund. under section 14 subject to
any general rules or special orders of the provincial gov-
ernment in that behalf the taxes which a tac companyld impose
had been stated. it did number mention weighing dues as such. the bye-laws envisaged by section 298  2  f  d  there-
fore companyld number ex facie be said to have empowered the tac
to impose a tax on the subject matter of that clause. it was
contended before the high companyrt that the u.p. town areas
 amendment  act 1952  u.p. act 5 of 1953  cured the defects
in the bye-laws if any inasmuch as section 12 of that
amending act added clause  g  to section 14 1  of the town
areas act in the following terms
any other tax being one of the taxes mentioned in subsec-
tion  1  of section 128 of the u.p. municipalities act 19
16.
section 128 1  of the municipalities act did number mention
weighing dues as such. but clause  xiv  of that section
provided
any other tax which the state legislature has power to
impose in the state under the companystitution. at the relevant time after the amendment of section
14 1  g  of the town areas act the tac was thus empowered
to levy any other tax being one of the taxes mentioned in
sub-section  1  of section 128 of the u.p. municipalities
act 1916.
the high companyrt on the basis of the above provision
concluded that the tac became empowered to levy all those
taxes which the state government companyld levy under sub-sec-
tion  1  of section 128 of the municipalities act and the
tac companyld impose any tax which the state legislature companyld
impose under the companystitution. further it was companycluded
that entry 52 of list ii empowered the state government to
impose tax on the entry of goods into local area for company-
sumption use
or sale therein and entry 54 of list ii empowered the state
government to impose a tax on the sale or purchase of goods
and hence the tac companyld impose tax on the entry of goods as
well as on the sale or purchase of goods in view of the
entries 52 and 54 of list ii. referring to the bye-law number
1 the high companyrt companycluded that this imposition was upon
the entry of the mentioned articles into town area for sale
and it was clearly companyered by entry 52 of list ii of the 7th
schedule and hence it companyld number be said that the tac did number
possess the requisite power to levy this tax. in other
words the weighing dues were companystrued as entry tax and
sale or purchase of goods tax companybined. the high companyrt also held that the defect if any in
this regard was cured by section 13 of the u.p. town areas
 amendment  act 1952 as section 13 of that act provided
numberwithstanding anything companytained in the principal act
 1  where any tax of the nature described in clause  g  of
sub-section  1  of section 14 of the principal act by
whatever name or description called has been imposed levied
or assessed by any town area companymittee prior to the company-
mencement of this act the same shall be and is hereby
declared to be good and valid in law as if this act had been
in force on all material dates and the tax had been imposed
levied and assessed under and in accordance with the appro-
priate provision in that behalf.  emphasis supplied by us
the high companyrt companycluded and we think rightly that the
imposition of this tax  weighing dues  had been validated
retrospectively as if the amending act had been in force
even in 1934 when the bye-laws were framed. the validity of
the provision having number been challenged it cannumber be held
that the imposition of this tax was without authority of law
if it companyld be brought within any of the taxation entries of
list ii of the seventh schedule of the companystitution. howev-
er if the weighing dues did number amount to a tax but a fee
then the question would be whether the tac companyld levy such a
fee. in fact one of the submissions of the appellant is that
it was a fee and number a tax as claimed by the respondent. a fee is paid for performing a function. a fee is number
ordinarily companysidered to be a tax. if the fee is merely to
compensate an authority for services performed or as companypen-
sation for the services rendered it
can hardly be called a tax. however if the object of the
fee is to provide general revenue of the authority rather
than to companypensate it and the amount of the fee has no
relation to the value of the services the fee will amount
to a tax. in the words of companyley a charge fixed by statute
for the service to be performed by an officer where the. charge has numberrelation to the value of the services per-
formed and where the amount companylected eventually finds its
way into the treasury of the branch of the government whose
officer or officers companylect the charge is number a fee but a
tax. under the indian companystitution the state governments
power to levy a tax is number identical with that of its power
to levy a fee. while the powers to levy taxes is companyferred
on the state legislatures by the various entries in list ii
in it there is entry 66 relating to fees empowering the
state government to levy fees in respect of any of the
matters in this list but number including fees taken in any
court. the result is that each state legislature has the
power to levy fees which is companyextensive with its powers
to legislate with respect to substantive matters and it may
levy a fee with reference to the services that would be
rendered by the state under such law. the state may also
delegate such a power to a local authority. when a levy or
an imposition is questioned the companyrt has to inquire into
its real nature inasmuch as though an imposition is labelled
as a fee in reality it may number be a fee but a tax and vice
versa. the question to be determined is whether the power to
levy the tax or fee is companyferred on that authority and if it
falls beyond to declare it ultra rites. we have seen that a fee is a payment levied by an au-
thority in respect of services performed by it for the
benefit of the payer while a tax is payable for the companymon
benefits companyferred by the authority on all tax payers. a fee
is a payment made for some special benefit enjoyed by the
payer and the payment is proportional to such benefit. money
raised by fee is appropriated for the performance of the
service and does number merge in the general revenue. where
however the service is indistinguishable from the public
services and forms part of the latter it is necessary to
inquire what is the primary object of the levy and the
essential purpose which it is intended to achieve. while
there is numberquid pro quo between a tax payer and the author-
ity in case of a tax there is a necessary companyrelation
between fee companylected and the service intended to be ren-
dered. of companyrse the quid pro quo need number be understood in
mathematical equivalence but only in a fair companyrespondence
between the two. a broad companyrelationship is all that is
necessary. where it appears that under the guise of levying a fee
the authority is attempting to impose a tax the companyrt has
to scrutinise the scheme to find out whether there is a real
co-relation between the services and the levy whether it is
so companyextensive as to be a pretence of a fee but in reality
a tax and whether a substantial portion of the fee companylect-
ed is spent in rendering the service. in the instant case replying to paragraph 9 of the writ
petition in paragraph 6 to 9 of the companynter affidavit in the
high companyrt the tac stated that it used to realise the amount
of weighing dues as tax and number as a fee and that numberques-
tion of quid pro quo was involved in the matter. most of the
carts of the cultivators who brought their produce were
parked in the cart-park which was on the land of the tac
and it maintained sanitary staff in order to keep the place
clean as bullocks and carts made the place dirty. arrange-
ment for lighting the patromax lamps and for keeping the
place clean was made by the tac. to ensure companyrect weighment
and to prevent cheating and defrauding bakshis and peons of
tac were deputed to supervise the daily weighing of the
goods and the tac maintained standard weights and measures
in case of any dispute which were to be settled. the weights
of persons were also checked and verified by the tac and its
seal was affixed to those weights in order to prevent cheat-
ing. in paragraph 12 it was stated that tac employed about
40 sweepers out of which about half were especially deputed
for keeping the places where the sale transactions took
place clean. one bakshi one jamadar and one peon were also
deputed to supervise the selling in order to see that the
bye-laws in respect of weighment were carried out and that
there was numbercheating. thus the tac justified the charging
of weighing dues but companyceded that the same was a tax as
there was numberquid pro quo. the respondent having thus companyceded that there was no
quid pro quo we have to hold as also was rightly held by
the high companyrt that the weighing dues companystituted a tax and
number a fee. we do number find any merit in the appellants submission
that there was double taxation in this case. the expression
double taxation is often used in different senses namely
in its strict legal sense of direct double taxation and in
its popular sense of indirect double taxation. double taxa-
tion in the strict legal sense means taxing the same proper-
ty or subject matter twice for the same purpose for the
same period and in the same territory. to companystitute double
taxation the two or more taxes must have been  1  levied on
the same property or subject matter  2  by the same govern-
ment or authority  3  during
the same taxing period and  4  for the same purpose. there
is numberdouble taxation strictly speaking says companyley
where  a  the taxes are imposed by different states  b
one of the impositions is number a tax  c  one tax is against
property and the other is number a property tax or  d  the
double taxation is indirect rather than direct. in the instant case there cannumber be said to be double
taxation as there is numbersuch taxation imposed by the tac for
the same period on the same goods at the same time and for
the same purpose. where more than one legislative authority such as the
state legislature and a local or municipal body possess the
power to levy a tax there is numberhing in the companystitution to
prevent the same person or property being subject to both
the state and municipal taxation or the same legislature
exercising its power twice for different purposes. in avind-
er singh v. state of punjab 1979 1 scr 845 the state of
punjab in april 1977 required the various municipal bodies
in the state to impose tax on the sale of india made foreign
liquor rs. 1 per bottle w.e.f. 20.5.1977. the municipal
authorities having failed to take action pursuant to the
directive the state of punjab directly issued a numberification
under section 90 5  of the punjab municipal companyporation act
1976 and similar provision of the municipal act 1911. the
petitioner challenged the companystitutional validity of the
said statutes and the levy on the inter alia ground of
double taxation. krishna iyer j. speaking for the companyrt
held there is numberhing in article 265 of the companystitution
from which one can spin out the companystitutional vice called
double taxation.  bad econumberics may be good law and vice
versa . dealing with a somewhat similar argument the bombay
high companyrt gave short shrift to it in western india theatres
 air 1954 bom. 261 . some undeserving companytentions die hard
rather survive after death. the only epitaph we may inscribe
is rest in peace and dont be re-born. if on the same sub-
ject matter the legislature chooses to levy tax twice over
there is numberinherent invalidity in the fiscal adventure save
where other prohibitions exist. we do number find materials in
this case to allow the companytention to be re-born. the submis-
sion is accordingly rejected. the companytention that the tax is discriminatory in view of
the exemptions granted to some of the products and to those
that enter the tac by rail or motor transport is equally
untenable. it is for the legislature or the taxing authority
to determine the question of need the policy and to select
the goods or services for taxation. the companyrts cannumber review
these decisions. in paragraph 16 of the companynter affidavit
the tac tried to explain the reason of number taxing salt
sugar and rice stating that they were number local produce but
were imported from distant places and that the tax was
levied only on the local produce which came from the neigh-
bouring places. companyrts cannumber review the wisdom or advisa-
bility or expediency of a tax as the companyrt has numberconcern
with the policy of legislation so long they are number incon-
sistent with the provisions of the companystitution. it is only
where there is abuse of its powers and transgression of the
legislative function in levying a tax it may be companyrected
by the judiciary and number otherwise. taxes may be and often
are oppressive unjust and even unnecessary but this can
constitute numberreason for judicial interference. when taxes
are levied on certain articles or services and number on others
it cannumber be said to be discriminatory. companyley observes
every tax must discriminate and only the authority that
imposes it can determine how and in what directions. the
tac having decided to impose weighing dues on the goods
mentioned in the bye-laws it is number for the companyrt to ques-
tion it on the ground that some similar companymodities or
commodities arriving by rail or road were number subjected to
the tax. the tax having number been found to have been discriminato-
ry or otherwise illegal we do number find any force in the
submission that it imposed any unreasonable restriction on
the appellants rights guaranteed under article 19 1  g  of
the companystitution of india.