CASE NO.: Appeal (crl.) 997 of 2004 PETITIONER: State by Police Inspector RESPONDENT: Sri. T. Venkatesh Murthy DATE OF JUDGMENT: 10/09/2004 BENCH: ARIJIT PASAYAT & C.K. THAKKER JUDGMENT:

J U D G M E N T (Arising out of SLP (Crl.) No.3615/2003) ARIJIT PASAYAT, J.

Leave granted.

The scope and ambit of Section 19 of the Prevention of Corruption Act, 1988 (in short the 'Act') falls for consideration in this appeal. State of Karnataka calls in question legality of the judgment rendered by a learned Single judge of <ORG>. <ORG> upheld the order of discharge passed by <ORG>. The respondent-accused was discharged in a criminal trial by the said order.

Background facts necessary for disposal of the appeal in a nutshell are as follows :

A charge-sheet was filed against the respondent (hereinafter referred to as the 'Accused') for commission of offences relatable under Sections 7 , 13 (1) (d) read with Section 13(2) of the Act. Charges were framed by <ORG> under the aforesaid provisions. Evidence of witnesses had also been recorded. At that stage the public prosecutor filed an application stating that in view of some earlier judgments of <ORG>, question relating to validating a sanction for prosecution was to be adjudicated first. The accused had no objection to it. Undisputedly, the sanction was accorded by the Superintending Engineer of <ORG> (hereinafter referred to as the 'Board'). <ORG> referred to <ORG> Employees (Classification, Disciplinary Control and Appeal) Regulations, 1987 (in short the 'Regulations') and held that the sanction accorded by the Superintending Engineer was not sufficient to prosecute the accused. Consequently it was held that the accused was entitled to discharge for the time being for the grant of invalid sanction. However, liberty was given to the prosecution to obtain fresh sanction and to file a fresh charge sheet. The order was assailed before <ORG> on the ground that even if it is conceded that the sanction was defective, that did not entitle the accused to an order of discharge. By the impugned order the revision application filed under Section 397 read with Section 401 of the Code of Code of Criminal Procedure, 1973 (in short the 'Code'), was dismissed.

In support of the appeal learned counsel for the <ORG> submitted that even if it is conceded for the sake of arguments that the sanction was defective that did not entitle the accused to an order of discharge. It was required to be shown by the accused as to how any prejudice was caused or there was failure of justice. It was also pointed out that the order of <ORG> is practically non- reasoned and no reason was assigned for accepting the view of the trial court.

Per contra, learned counsel for the respondent  accused submitted that the sanction was sine-qua-non for prosecution. In the absence of a valid sanction the proceedings could not be continued and therefore the trial court was right in its conclusion.

Section 19 is a part of Chapter 5 of the Act which deals with "Sanction For Prosecution and Other Miscellaneous Provisions". This Section has four sub- sections which read as follows :

"19. Previous sanction necessary for prosecution.- (1) No court shall take cognizance of an offence punishable under Sections 7 , 10 , 11 , 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,-

(a) in the case of a person who is employed in connection with the affairs of the <ORG> and is not removable from his office save by or with the sanction of the Central Government, of that Government;

(b) in the case of a person who is employed in connection with the affairs of a <ORG> and is not removable from his office save by or with sanction of the <ORG> Government, of that Government;

(c) in the case of any other person, of the authority competent to remove him from his office.

(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or <ORG> or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 ,-

(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub- section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;

(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;

(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.

4. In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.

Explanation  For the purposes of this section,-

(a) error includes competency of the authority to grant sanction;

(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature."

A combined reading of sub-sections (3) and (4) make the position clear that notwithstanding anything contained in the Code no finding, sentence and order passed by a Special Judge shall be reversed or altered by a <ORG> in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in the sanction required under sub-section (1), unless in the opinion of that court a failure of justice has in fact been occasioned thereby. Clause (b) of sub-section (3) is also relevant. It shows that no <ORG> shall stay the proceedings under the Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice.

Sub-section (4) postulates that in determining under sub-section (3) whether the absence of, or any error, omission or irregularity in the sanction has occasioned or resulted in a failure of justice the <ORG> shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.

Explanation appended to the Section is also of significance. It provides, that for the purpose of Section 19 , error includes competency of the authority to grant sanction.

The expression "failure of justice" is too pliable or facile an expression, which could be fitted in any situation of a case. The expression "failure of justice" would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord <NAME> in <ORG> v. <ORG> (1977) 1 All E.R. 813: 1978 AC 359). <ORG>, particularly the superior <ORG> should make a close examination to ascertain whether there was really a failure of justice or it is only a camouflage. [ <CITATION> (2001 (2) SCC 577)].

It would also be relevant to take note of Sections 462 and 465 of the Code, which read as follows:

"462. PROCEEDINGS IN WRONG PLACE:

No finding, sentence or order of <ORG> shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice.

465. FINDING OR SENTENCE WHEN REVERSIBLE BY REASON OF ERROR, OMISSION OR IRREGULARITY:

(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a <ORG> of competent jurisdiction shall be reversed or altered by a <ORG> of appeal confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that <ORG>, a failure of justice has in fact been occasioned thereby. (2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the <ORG> shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."

<CITATION> . (2001 (7) SCC 679), the true essence of the expression "failure of justice" was highlighted. Section 465 of the Code in fact deals with "finding or sentences when reversible by reason of error, omission or irregularity", in sanction.

In the instant case neither <ORG> nor <ORG> appear to have kept in view the requirements of sub-section (3) relating to question regarding "failure of justice". Merely because there is any omission, error or irregularity in the matter of according sanction that does not affect the validity of the proceeding unless the court records the satisfaction that such error, omission or irregularity has resulted in failure of justice. The same logic also applies to the appellate or revisional court. The requirement of sub- section (4) about raising the issue, at the earliest stage has not been also considered. Unfortunately <ORG> by a practically non- reasoned order, confirmed the order passed by the learned trial judge. The orders are, therefore, indefensible. We set aside the said orders. It would be appropriate to require <ORG> to record findings in terms of clause (b) of sub-section (3) and sub-section (4) of Section 19 .

The appeal is allowed to the aforesaid extent.


JUDGMENT <NAME>, C.J.

1. This is an application by one <NAME> under Article 226(1) of the Constitution to issue a writ of 'certiorari' to call for the records of the proceedings on the file of the Assistant Custodian of Evacuee Property, Madras in Nos. 224 & 224 A of 1949 & to quash the orders passed on the two matters respectively on the same day, 10-4-1950. The order in A. C. No. 224 A of 1949 declared one M.E. <NAME> an evacuee under Section 2(d)(i) of the Administration of Evacuee Property Ordinance (XXVII (27) of 1949) & his one-fourth share in Messrs. <NAME> & Sons as evacuee property under Section 2 (f) of the same Ordinance. By the order in A. C. 224 of 1949 three persons, namely, <NAME> <NAME>, M.B. <NAME> the applicant herein & M.I. <NAME> were declared to be intending evacuees under Section 19 of the same Ordinance.

2. The undisputed facts are as follows: There was a firm known as <ORG> doing business for several years in the City of Madras. From 1943 the firm consisted of four partners, <NAME> (the father) & his three sons, <NAME>, <NAME> & <NAME>. From 1946 the share of each partner was fixed at one fourth. In September 1948 one of the partners <NAME> left for Karachi where he was married & he has since been residing at Karachi. Sometime in 1949, the business of a company in Karachi known as <ORG> was purchased by <NAME>, the father. All these facts are admitted. The applicant further states that though it is true that <NAME> has settled in Karachi i.e., in Pakistan, he has an intention of returning to India after the lifetime of his mother-in-law at whose instance he stayed away in Karachi. It is further stated that there was a dissolution of the partnership from 1-4-1949 when <NAME> ceased to be a partner & took away the moneys representing his share in the partnership & it was with these moneys & for his sole benefit that the business of <ORG> was purchased. It is also his case that from 1-4-1949 a new partnership was formed with three partners, <NAME>, <NAME> & <NAME>, wife of <NAME>.

3. Proceedings were taken under the provisions of the Ordinance abovementioned (XXVII of 1949) & the partners of <ORG> were called upon to show cause why they should not be treated as "intending evacuees under Section 19 of the Ordinance". "Intending evacuee" according to the definition in Clause 2 (e) of the Ordinance means, "any person who after 14-8-1947 (1) has transferred to Pakistan his assets or any part thereof situated in any part of the territories to which this ordinance extends:

Provided that the transfer to Pakistan of any reasonable sum of money, for the purpose of financing any transaction in the ordinary course of his trade or for the maintenance of any member of the family of such person shall not be deemed to be a transfer of assets within the meaning of this Sub-clause, or (ii) has acquired, if the acquisition has been made in person, in any mode other than the modes specified in Sub-clause (iii) of Clause (d) of Section 2 or if the acquisition has been made by or through a member of his family, any right to, interest in or benefit from any property which is treated as evacuee or abandoned property under any law for the time being in force in Pakistan, or (iii) has, by the execution of any document of transfer in writing, whether registered or not, or by means of any other document in writing, sought to effect an exchange of the whole or any part of his property situated in any part of the territories to which this ordinance extends, with any property situated in Pakistan."

Evidently there were two charges against the partners of <ORG> (1) that they had transferred to Pakistan a part of their assets, (2) that they had acquired a right to & interest in evacuee property in Pakistan (<ORG>).

4. <NAME> & his two sons the applicant & <NAME> were examined by the Assistant Custodian of <ORG>. One <NAME>, a partner of Messrs. <NAME> & Co. was also examined. The Assistant Custodian came to the conclusion that on the evidence <NAME> & Co. could not be held to be evacuee property at the time when <NAME> bought it But he found that that business was bought with moneys belonging to the partnership of <ORG>. He found that the alleged dissolution in April 1949 was sham & was only put forward to circumvent the provisions of the Ordinance, that at the time of purchasing <NAME> & Co. the firm had not been dissolved & M. <NAME> continued to be a partner & therefore the assets of the company had been transferred to Pakistan. He therefore declared on this ground that the partners of <ORG> namely <NAME>, <NAME> & <NAME> were intending evacuees under Section 19 of the Ordinance.

5. In the connected matter (A. C. No. 224 A) the Assistant Custodian declared <NAME> an evacuee under Section 2 (d) (i) of the Ordinance & his share of Messrs. <NAME> & Sons as evacuee property under Section 2 (f) of the Ordinance. Section 2 (d) (i) is in the following terms:

" 'Evacuee' means any person.........

(i) who, on account of the setting up of the Dominions of India & Pakistan or on account of civil disturbances or the fear of such disturbances, leaves or has, on or after 1-3-1947, left, any place in a Province for any place outside the territories now forming part of India.'

6. In this application we must accept the findings of fact arrived at by the Assistant Custodian. We are unable to find any error of law in his two main conclusions. There were certainly circumstances which justified the Assistant Custodian in coming to the conclusion that <NAME> was an evacuee & that <NAME>, <NAME> & <NAME> are intending evacuees within the meaning of the ordinance.

7. <NAME> has not chosen himself to get rid of the order against him. He is the person really aggrieved by the order in A. C. No. 224 A. The applicant, however, seeks to attack the validity of the order relating to <NAME> because of a peculiar complication, namely, that <NAME> happens to be a partner in Messrs. <NAME> & Sons. If the Assistant Custodian had, in spite of finding <NAME> was an evacuee, held that there was a partition from 1-4-1949 & that <NAME> had taken away with him his share in the partnership, then surely the applicant would have had no grievance at all against the order in A. C. No. 224-A of 1949. What really hurts him is the finding that there was no real dissolution & that <NAME> did not take away his share of the partnership. The Assistant Custodian has found the story of the dissolution to be suspicious & deliberately invented to escape from the consequences which would inevitably follow on an application of the provisions of the Ordinance. On the facts he was entitled to draw that conclusion.

8. It is equally clear that the Assistant Custodian was right on the facts in holding that the partners of <ORG> had transferred a portion of their assets to Pakistan for the purchase of the business of <ORG> in Karachi. The only way they could get out of this obvious result was to set up a separation of <NAME> from the partnership before the purchase so that it could be said that <ORG> was purchased not with the moneys belonging to the partnership but with the moneys belonging to <NAME> individually. The case thus set up by them has failed. It follows that the applicant & his father & <NAME> were rightly declared to be intending evacuees according to the definition in the ordinance.

9. The question is whether the two orders or any of them can be impugned on any other ground.

10. It may be convenient to dispose of at the outset certain technical--one can say almost formal--objections raised by learned counsel for the applicant in regard to the orders. It was represented that the order on A. C. No. 224 of 1949 though passed on 10-4-1950, had not been published in the <ORG>. Under Section 19 (2) of the Ordinance, any declaration made under Sub-section (1) of that section shall be published in the Official <ORG>. Assuming that it had not been published before the application was filed before us, we do not see what follows. The important thing was the declaration by the custodian & this application was directed against that order. The learned Advocate General on instructions said that the notification was not published as in the meanwhile this <ORG> admitted the application for a writ & called for the papers & directed 'interim' stay. Whatever be the reason, the point is whether the applicant does or does not feel aggrieved by the order of the 10-4-1950 which he seeks to have quashed. If he is, it does not matter if it had not been published.

11. Something was sought to be made out of the fact that on 17-4-1950, Act XXXI (31) of 1950 came into force & this Act repealed Ordinance No. XXVII (27) of 1949. The declaration regarding M.E. Namazi was published in the Gazette of 25-4-1950. It was contended that the date of publication was the important date and by that date the ordinance itself had ceased to be in force. A complete answer to this argument is furnished by Section 58 of Act XXXI (31) of 1950. It runs thus:

"(1) The Administration of Evacuee Property Ordinance, 1949 (XXVII (27) of 1949) is hereby repealed.

2. The repeal by this Act of the Administration of Evacuee Property Ordinance, 1949 (XXVII of 1949) shall not affect the previous operation thereof & subject thereto, anything done or any action taken in the exercise of any power conferred by or under that ordinance shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act, as if this Act were in force on the day on which such thing was done or action was taken". (This section has since been replaced by another section practically on similar lines by Act (LXXI (71) of 1950).

The main part of the argument of the learned counsel for the petitioner was devoted to an attack on the validity of the ordinance itself. It was contended that the ordinance was void as being inconsistent with & in violation of the provisions of the Constitution, in particular, Articles 14, 15, 19, & 31. The ordinance deals with the administration of the properties of evacuees & with restrictions on the rights of intending evacuees. It will be convenient to consider the two sets of provisions of the Ordinance dealing with evacuees & intending evacuees separately to find out if all or any of such provisions are void under Article 13 of the Constitution. We wish, however, to refrain from entering upon a mere academic discussion of every provision of the Ordinance & shall confine ourselves as far as possible to provisions which have a direct bearing on the case before us.

12. There are three alternative definitions of "evacuee' in Section 2 (d). As <NAME> has been declared to be an evacuee within the meaning of Section 2 (d) (i) we are not called upon to consider the other two definitions. This obviates a discussion of a rather difficult question, namely, whether a person who has been declared an evacuee under Sub-section (d) (iii) though he is still residing in India, can be said to have ceased to be a citizen of India. Now in this case the finding is that <NAME> has left India for Pakistan, i.e., he has changed his abode from the Dominion of India to the Dominion of Pakistan. In other words, he has migrated to Pakistan after 1-3-1947. It is true that a person does not lose his domicile merely by migration. The presumption in the case of fugitive from his country on account of disturbances therein is that he has still aot abandoned his intention of returning to it, & therefore still retains his domicile in his native land (see Phillimore's International Law, Edn. 3, Vol. IV, p. 138). But we are not concerned with general rules of International law as we have specific provisions in the Constitution on this subject. Article 5 declares that every person who has his domicile in the territory of India at the commencement of this Constitution who was born or either of whose parents was born in the territory of India, or who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement shall be a citizen of India. But Article 7 expressly makes an exception. It says, "Notwithstanding anything in Articles 5 & 6 a person who has after the first day of March 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India."

The proviso Is not material for the present case. On the finding of the Assistant Custodian which we accept, <NAME> has migrated from the territory of India to the territory included in Pakistan after 1-3-1947. He cannot therefore be deemed to be a citizen of India. If he is not a citizen Articles 15 & 19 have no application as these articles confer rights & privileges only on citizens. The question, therefore, is whether Articles 14 & 31 which apply not only to citizens but to all persons in the State are infringed in any way by any of the provisions of the Ordinance relating to evacuees in the position of <NAME>.

13. What is the effect of a notification declaring any property to be evacuee property? Under Section 8 such property vests in the Custodian who can under Section 9 take possession of it.

The Custodian may take such measures as he considers necessary or expedient for purposes of securing, administering, preserving & managing any evacuee property which has vested in him & may, for any such purpose, do all acts, & incur all expenses necessary or incidental thereto. He may carry on the business of the evacuee, or appoint a manager for the property of the evacuee or for carrying on any business, recover the debts due to the evacuee, institute, defend or continue any legal proceeding on behalf of the evacuee, transfer the property provided that he shall not sell any property of business except with the previous approval of the Custodian General etc. The Custodian is also given powers to vary or cancel leases or allotments of evacuee property. He is bound to maintain a separate account of property of each evacuee possession of which has been taken by him. Section 16 is important. It enacts that the Custodian may, on application, made to him by an evacuee or any person claiming to be the "heir of an evacuee, restore, subject to any conditions, property which he had taken possession of, provided the applicant produces a certificate from <ORG>. or other authority to the effect that the property may be restored. Section 38 retrospectively affects transfer of any right, or interest in any property made after 14-8-1947 by or on behalf of an evacuee. Such transfers have to be confirmed by the Custodian to be effective to confer any rights. It will be seen that the entire scheme of the Ordinance in respect of what is called "evacuee property" is a provision for the custody & administration of such property & not for confiscation. The evacuee's title as such is never affected. Even the rights of a heir are recognised. Restoration of the property is contemplated. The Custodian acts practically as a statutory agent with large powers, but under a duty to keep accounts. Article 14 of the Constitution runs as follows: "The <ORG> shall not deny to any person equality before the law or the equal protection of the laws within the territory of India". This Article has recently come up so much for discussion that it is unnecessary to repeat what has been said before by this Court & by <ORG>. No doubt, this article applies to aliens also. It has been held time & again in the United <ORG>s that aliens are entitled to the protection of both the due process clause & the equality clause, see Willis Constitutional Law, p. 583; <ORG>'s Constitutional Law, p. 403. But it has also been held that there can be a certain amount of discrimination so far as aliens are concerned which would be justified under the police power of the state, e.g. "An autioneer's licence may be refused to an alien. He may be denied a licence to sell intoxicating liquors or to run a pool hall or to operate motor buses". (<ORG>, page 404).

'Terrace v. Thompson', 263 US 197, is an instructive case on the point. It was held by <ORG> in this case that though alien inhabitants of a State may invoke the protection of the due process & equal protection clauses of the Constitution, each State has power to deny aliens the right to own land within its borders & no violation of the Constitutional provisions guaranteeing equal protection of the laws is effected by a statute denying aliens who have not declared an intention to become citizens the right to hold land. A further distinction has also been made between resident aliens & non-resident aliens. In one case the position of a non-resident alien & his right to invoke in his aid the provisions of the Constitution was forcibly described thus:

"He owes no allegiance to our flag or our Govt. He may as far as we know be plotting our destruction. Why should we be presumed to give when we receive nothing?"

In my opinion, there has been no infringement of Article 14 of the Constitution. Persons like <NAME> are really to be treated as nonresident aliens & they cannot complain if, in the interests of the State, provision is made for taking into custody the property which they have left in India & for its administration. It appears to us that these provisions are also intended to safeguard the rights & interests of the evacuees in cases where they had left India practically abandoning their properties.

14. Nor do we think that these provisions of the Ordinance are inconsistent with Article 31(1) which says that no person shall be deprived of his property save by authority of law. We have already pointed out that none of the provisions of the Ordinance deprives the evacuee of his title to the property. The only thing which he can be said to have been deprived of nationally is his possession, but on a closer examination, it will be evident that he is not actually deprived of possession in law. 'Ex hypothesi', an evacuee such as 'M.E. Namazi who has migrated to Pakistan cannot be in actual physical possession of his property. He can only be constructively in possession, say, through his agent or manager. As we read the provisions of the ordinance, the custodian is really in the position of a statutory agent or manager. The position of <ORG> under <ORG> Act is analogous. We cannot describe a statute which provides for possession through a special kind of agent as an enactment which deprives the owner of his constructive possession. I am therefore of opinion that Article 31 does not come into the picture at all. There is no deprivation of the property of the evacuee within the meaning of Article 31(1). Nor is there any taking possession or acquisition falling under Article 31(2).  An Act , for instance, like <ORG> Act, which provides for <ORG> assuming management of the properties of a proprietor who is declared to be disqualified cannot be described as an Act depriving the ward of his property or as contemplating an acquisition of his property by the <ORG>. I cannot understand how any compensation can be given to the evacuee when the Custodian keeps accounts of all receipts & disbursements relating to his property & there is provision for restoration at a subsequent date.

15. I do not therefore think it necessary to embark on a discussion of what is meant by "public purpose" & what is included in the words "save by authority of law'. I respectfully agree with <NAME>, J. that Article 31(1) means only that no person shall be deprived of his property by a mere executive, administrative or prerogative act.

"If the executive takes the property of any person, it must be prepared to justify that act under the authority of a valid law. <CITATION> ', AIR 1950 Pat 392 at p. 425. I also agree with him with respect that mere state policy or policy of the party in power may not be the same thing as public purpose. If it were necessary I am prepared to hold that the Ordinance & the Act which replaced it, if they involve acquisition, then such acquisition is for public purpose. Having regard to what happened soon after the partition in 1947 & the fact that a satisfactory & final settlement has not yet taken place between the Dominion of India & the Dominion of Pakistan in respect of property of person who on account of the partition & disturbances migrated from one Dominion to the other, it cannot be said that the enactments in question were not undertaken in the general interests of large sections of the community. I need only refer to Clause (5) of Article 31 of the. Constitution itself which specifically provides that nothing in Clause (2) shall affect the provisions of any law which the State may make in pursuance of any agreement entered into between the Govt. of the Dominion of India & the Govt. of any other country with respect to property declared by law to be evacuee property. In one sense the subject matter of these enactments belongs more to the realm of international law rather than to Municipal law.

16. I need only refer to two other circumstances. One is that the action taken under the Ordinance or the Act as regards what is called evacuee property is expected to be only tentative & temporary in nature & duration. There are elaborate & detailed provisions as to the manner in which the Custodian has to manage & administer the property & there is provision for restoration. There is also the contemplated agreement between the two Dominions. The second circumstance is that the evacuee himself has not chosen to complain before us against the order in A. C. No. 224 A. It is he who should feel aggrieved if there had been any deprivation of his right & he has not complained. There is no ground therefore for quashing that order.

17. There is, however, one thing about which I am not quite clear. The Ordinance no doubt declares the order of the Custodian declaring any property to be evacuee property as final. That might be so in one sense, i.e., if any property belongs to a person who has been declared to be an evacuee within the meaning of the definition in the Ordinance, then the custodian's order would be final. But, does the finality amount to an adjudication on title in case there is any dispute? Take for instance the case where a property is declared to be evacuee property on the assumption that it belongs to A who is an evacuee. Does it mean that some one else cannot say that the property really does not belong to the evacuee but belongs to himself who is not an evacuee? I am inclined to hold that the order of the Custodian or the notification under Section 7 of the Ordinance is not final, in case of disputed title.

18. Then we come to the case of intending evacuees. Obviously a mere declaration under Section 19 of the Ordinance that a person is an intending evacuee does not in any way injure that person. The question is whether the consequences of such declaration inflict on him any injury & if so whether all or any of the provisions under which such consequences ensue are void. Section 20 of the Ordinance prohibits an intending evacuee from transferring in any manner whatsoever his right or interest in immoveable property except with the previous approval of the Custodian & any transfer made in contravention of the section shall be void; Section 21 confers certain powers on Custodians in respect of the property of intending evacuees. It runs as follows:

"For the purpose of preserving any property in which any person in respect of whom a declaration has been made under Section 19 that he is an intending evacuee has any right or interest, the Custodian may:

(a) by order in writing, require any such person to furnish such returns, accounts or other information in relation to any such property & to produce such documents in his possession as the custodian may require;

(b) inspect the books of accounts or other documents maintained by or in the possession of such person;

(c) pass such orders or direct such action to be taken in relation to any such property;

(d) by order in writing, prohibit the transfer to Pakistan of a sum of money belonging to any such person or permit such transfer subject to such conditions as the Custodian may think fit to impose."

Section 22 provides that if the intending evacuee makes any transfer of any property in contravention of Section 20 or fails to comply with any order made under Clause (c) or Clause (d) of Section 21 , the Custodian may declare any property of his to be evacuee property. Section 23 provides for special cases of intending evacuees acquiring evacuee or abandoned property in Pakistan for inadequate consideration.

19. It was not represented to us that any action has been taken under either Section 22 or Section 23 against the applicant before us. Nor has it been alleged that the Custodian has called upon the applicant to do any of the things mentioned in Section 21 . It was also not alleged that the Custodian has refused to approve any transfer made by the applicant. But it was contended that the provisions abovementioned seriously infringe the rights of the applicant who has been declared to be an intending evacuee, & are inconsistent with the Articles of the Constitution which confer on him certain fundamental rights & are therefore void. The basic assumption of the contention is that the applicant though declared to be an intending evacuee is still a citizen of India. There can be no doubt about that & the learned Advocate General did not contest the position. The applicant falls within the definition of a citizen under Article 5 of the Constitution as he has not migrated to Pakistan. He will therefore be entitled to all the fundamental rights declared in Part III of the Constitution. In particular he invokes Articles 15 & Article 19(1)(f).

20. The contention based on Article 15(1) may be briefly disposed of. The argument is that a discrimination has been made against persons of a particular religion, namely, Muslims. It may be that actually most of the persons to whom the provisions of the Ordinance may apply are likely to be Muslims, but there is nothing in the Act which necessarily leads to any discrimination. If a non-Muslim falls within the definition of an evacuee or an intending evacuee then the Ordinance would apply equally to him. Reference was made to the well-known case of '<NAME> v. <NAME>', (1886) 118 US 356. In that case <ORG> of the United States declared the general doctrine thus, "Though the law be fair on its face & impartial in appearance, yet, if it is applied & administered by public authority With an evil eye & an unequal hand so as practically to make unjust & illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution." (<NAME> on the Constitution of the United States, Edn. 2, Vol. 3, p. 1931).

I do not think there is any such thing here. It is idle to shut one's eyes to the context in which the Ordinance was passed & to seek to apply abstract principles without any consideration of the special circumstances relating to the passing of the enactment.

21. Article 19(1)(f) says that all citizens shall have the right to acquire, hold & dispose of property. This may be read with the limitation in Clause 5 of the same article that nothing in that sub-clause shall affect the operation of any existing law in so far as it imposes or prevents the <ORG> from making any law imposing reasonable restrictions on the exercise of the right conferred by the said sub-clause either in the interests of the general public or for the protection of the interests of any scheduled tribe. The question resolves itself into this, namely, whether any of the restrictions imposed by Sections 20 & 21 of the Ordinance are reasonable restrictions in the interests of the general public. I am inclined to hold that none of the restrictions contained in Section 21 can be said to be restrictions not reasonably imposed. I am prepared to hold that it is in the interests of the general public that powers have been conferred on the Custodian to see that moneys are not transferred to Pakistan before final settlement is arrived at between the Dominions of India & Pakistan as such indiscriminate transfer of assets would render the final settlement extremely difficult. Section 21 does not really prohibit the moneys of an intending evacuee being used by him or being invested. The incidental powers of the Custodian to require the intending evacuee to furnish returns & other information & the power of the Custodian to inspect the books of account & other documents do not, in my opinion, restrict the fundamental right to acquire, hold & dispose of property.

22. Section 20 of the Ordinance has given me the greatest difficulty. I asked the Advocate General if there were any rules which indicated on what grounds the <NAME> may refuse to approve any transfer by an intending evacuee, but I was told that there was no rule in regard thereto. The result is that as the section stands, the <NAME> can arbitrarily refuse to approve any transfer by an intending evacuee. The words "transfer in any manner" are wide enough to include even an ordinary lease. The learned Advocate General was unable to convince me why & how the interests of the general public demanded a restriction on the power of an intending evacuee to lease his property or to sell or to make a gift of it. It may be said that the <NAME> would not ordinarily refuse to approve any transfer unless for proper grounds. But surely that would be gambling on the reasonableness of the <NAME>. As the section stands, there is nothing to prevent the <NAME> from most unreasonably refusing to approve of any transfer by an intending evacuee. I can understand a provision giving power to the <NAME>, to prohibit a transfer to an evacuee. I can well understand previous intimation to the <NAME> being made a condition, because the <NAME> would then take steps to prohibit the transfer to Pakistan of the proceeds of such transfer, if any. In my opinion, the restriction on the power of disposal of immovable property contained in Section 20 of the Ordinance, as it stands, is an unreasonable restriction on the exercise of the intending evacuee's right as a citizen under Article 19(1)(f) of the Constitution. It is, however, unnecessary to make any order in this case on that ground, because it is not alleged that there has been any attempt at transfer by the applicant which has not met with approval of the <NAME>.

23. As we have held that the applicant was rightly declared to be an intending evacuee within the meaning of the definition in the Ordinance, the only thing we can do at present is to dismiss the application. There will be no order as to costs.

24. The petitioner will have a certificate under Article 132(1) of the Constitution that this case involves a question of law as to the interpretation of the Constitution.


PETITIONER: M/S. BHARAT SUGAR MILLS LTD. Vs. RESPONDENT: <NAME> AND OTHERS DATE OF JUDGMENT: 20/09/1961 BENCH: ACT: Industrial Dispute-"Go slow" by workmen-Application for permission to dismiss-Domestic enquiry not Proper-If <ORG> can take independent evidence for finding prima facie case Mala fides and victimisation-Delay in making application-Effect of- Industrial Disputes Act , 1947 .s. 33. HEADNOTE: Certain workmen of the appellant resorted to "go slow". The appellant held, a domestic enquiry and as a result thereof decided to dismiss 21 workmen. After considerable delay it made an application under s. 33 of the Industrial Disputes Act, 1947, for permission to dismiss these workmen. Evidence was led before the <ORG> to prove the charge against the workmen. The <ORG> held that the domestic enquiry was not proper, that the appellant was guilty of mala fide conduct and victimisation, that, except in the case of one workmen, the others were not guilty of any deliberate go slow and accordingly granted permission in respect of the one workman alone. The appellant contended that the finding that the remaining 20 workmen were not guilty of deliberate go slow was perverse and that the finding in respect of mala fides and victimisation was arbitrary and erroneous. The workmen contended that once the domestic enquiry was found to be improper the <ORG> had to dismiss the application and it could not take independent evidence and arrive at a finding of its own as to the guilt of the workmen. Held, that in an application under s. 33 of the Industrial Disputes Act, 1947, when there has been no domestic enquiry or when the domestic enquiry has not been properly conducted it is the duty of the <ORG> to take evidence of both sides and to decide whether the alleged misconduct has been made out. The evidence produced before the <ORG> clearly established that 13 out of the 20 workmen were guilty of deliberate go slow. Go slow was a pernicious and dishonest practice which was a misconduct punishable with dismissal under the standing orders. Actual participation in go slow was serious misconduct and the management could not reasonably be accused of mala fides or revengefulness if it proposed punishment of dismissal for such conduct. There was delay in holding the domestic enquiry and the management showed lamentable callousness in this matter. In cases of this nature the enquiry should be held as early as possible, specially when the workmen arc put under suspension. Again, there was delay in making the application for permission to 685 dismiss. But these delays did not show that the management was guilty of mala fides or of an intention to victimise. The order of the <ORG> refusing permission to dismiss 13 of the workmen was entirely wrong and unjust and could not be allowed to stand. <CITATION> ,  Supp. 2 S. C. R. 836, <NAME> v. <ORG> 1959 L. A. C. 697 and <ORG> v. its workmen,,  1 S. C. R. 806, referred to. JUDGMENT:

CiviL APPELLATE JURISDICTION : Civil Appeal No. 252 of 1960.

Appeal by special leave from the Award dated March 6, 1958, of <ORG>, Bihar, Patna in Misc. Case No. 1 of 1959.

<NAME>, <NAME> and <NAME>, for the appellants.

<NAME>, for the respondents.

1961. September 20. The Judgment of the Court was delivered by <NAME> appellant, <ORG>, made on December 31, 1956 an application under s. 33 of the Industrial Disputes Act before <ORG>, Bihar, Patina for the dismissal of 21 workmen for misconduct in connection with "go slow" alleged to have been resorted to by the workmen of the factory from the midnight of February 12, to the February 18, 1955. The <ORG> held that actual participation in a "go slow" had been established only against one of the workmen at the <ORG> end and that the "go slow" at the later stages in which the other 20 workmen had been engaged occurred as a necessary consequence of this go slow by one workman at the <ORG> end and was not a deliberate ,go slow" by them, The <ORG> was of opinion also that the management was not acting bona fide and really was seeking to victimise, active members of the <ORG> which the employer had refused to recognise. Accordingly, it refused permission in respect of 20 of the workmen and gave permission to dismiss only <NAME> a workman at the <ORG> The correctness of this refusal is challenged before is in this appeal by special. leave-. The appellant's contention is two-fold. First it is said that the finding of the <ORG> that these workmen in respect of whom permission to dismiss was refused were not guilty of any deliberate go slow is perverse; secondly it is contended that the <ORG>'s view that the employer was guilty of mala fide conduct and victimisation of these workmen for <ORG> activities is arbitrary and erroneous.

It does not appear to have been disputed that " go slow" was actually resorted to in this factory from February 12, to February 18, 1955. It was indeed hardly open to the workmen to dispute this, after all the pomp and ceremony with which go slow" was celebrated. We find that as early as January 15, 1955, 10 demands were communicated by the <ORG> on behalf of the workmen by a letter which said that unless these demands were conceded by the January 26, 1955 the workmen world resort to "go slow" from January 30, 1955. This notice to "';.to slow appears to have been withdrawn on the 22nd January, 1955, apparently on the advice of the Assistant Commissioner of Labour, <NAME>. A further letter was issued the same day in which 5 demands were made with a request to concede these by the 6th February failing which it was said they would "resort to go slow from the February 19, 1955". The, Secretary of <ORG> to whom the Conciliation Officer wrote, that very day, wrote back on January 22, 1955, that they had not received any notice dated January 22, 1955. In reply to a further communication from the Assistant Labour Commissioner the appellant sent a telegram on February 3, 1955, regretting inability to attend the proposed conciliation meeting on February 4, 1955 as both the Secretary and the Assistant Secretary were away. Then on February 8 another telegram was sent on behalf of the management informing the Assistant Labour Commissioner that the General Secretary would be returning soon and that any date after the 11th may be fixed. Thereafter, in reply to a further communication from the Assistant Commissioner inquiring as to what date would suit the management the General Secretary <NAME> sent another telegram requesting the Assistant Labour Commissioner to fix any date before the 17th. This telegram was sent on February 11. On the next date, February 12, <NAME> sent a further telegram to the Assistant Labour Commissioner stating that he would come to <NAME> on the 15th afternoon. Before any action could however be taken by the Assistant Labour Commissioner, the workers commenced their "go slow" from the midnight of February 12.

"Go slow which a picturesque description of deliberate delaying of production by workmen pretending to be engaged in the factory is one of the most pernicious practices that discontended or disgruntled workmen sometime resort to. It would not be far wrong to call this dishonest. For, while thus delaying production and thereby reducing the output the workmen claim to have remained employed and thus to be entitled to full wages. Apart from this also, ",go slow" is likely to be much more harmful than total cessation of work by strike. For, while during a strike much of the machinery can be fully turned off, during the "go slow" the machinery is kept going on a reduced speed which is often extremely damaging to machinery parts. For all these reasons logo slow" has always been considered a serious type of misconduct. The Standing Orders which have been made under the Standing Orders Act for the appellant factory specify "go slow" as misconduct in sub-cl. (u) of cl. (1) para. M under the words : " Malingering or deliberate delaying of production and carrying out of orders." It is strange therefore to see that notice of intention to commit this misconduct was solemnly given by the <ORG> in one letter after another. Some light on the mystery is however thrown by the fact that in Bihar a <ORG> to consider and report on the question of "go slow" tactics in industries was appointed by <ORG> and the report of the <ORG> was submitted in 1951. The <ORG> made, several recommendations including one that "go slow" by workers should be treated on a par with strike. It also recommended however that workers should not resort to "go slow" without at least 7 days notice, that the notice would remain in force for 4 weeks but. that it would not be necessary to notify the exact date of starting the "'go slow". Another recommendation was that workers should not resort to "go slow" during the pendency of a conciliation proceeding but that the conciliation proceeding must be concluded within four weeks of the notice. The <ORG> went to the length of recommending that "go slow" due to mal-practices by the management would be justified. By a resolution dated December 1, 1951, <ORG> "'were pleased to accept the recommendations of the "go slow" <ORG> and expressed their "thanks to the members of the <ORG> for the well considered report." No action was however taken to delete item (u) of clause (1) of para. M of the Standing Orders and so under the Standing Orders which it may be mentioned were certified on November 7, 1951, the deliberate delaying of production continued to remain a -misconduct" under the law inspite of the bleags it received from the <ORG> and <ORG>.

As to the fact that "go slow" was resorted to in the factory from the midnight of February 12, 1955, up to the February 18, 1955, could not be and was not disputed, it becomes necessary to consider the evidence on the record to examine the conclusion reached by the <ORG> that there was no deliberate "go slow" by any of the present respondents. The charge -sheets which were served on the workmen accused them not only of actual participation in the "go slow" but also of instigating and intimidating other workmen to ",go slow". It is to be noticed however that while' ,,,inciting others to strike work" is misconduct under' the Standing Orders para M. el. sub-el. (u) incitement to deliberate delaying of production has not been specifically made a misconduct under the Standing Orders.

We shall therefore confine our attention to the appellant's case that these workmen actually participated in the "go Flow". A complaint was made on behalf of the respondents that the charges that were given to the workmen were vague. We have examined the charges and consider this complaint wholly unjiustfied. We have no hesitation however in accepting the criticism by the learned counsel for the respondents that the enquiry made by the domestic tribunal of the appellant was far from a proper enquiry, as the minimum requirements of natural justice were not satisfied. It appears that no witness was examined by the Enquiring Officer and the only person examined was the workman against whom the enquiry was being held. Reports by some officers of the company were taken into consideration but it does not appear that the contents of these reports were read out and explained to the workmen. The persons whose reports were thus considered were present at the enquiry, but even so it does not appear that the workman was given an opportunity to examine them. Indeed, as none of these persons were actually examined in the presence of the workmen the question of their cross-examination by or on behalf of the workmen did not arise. The workman thus had not only no proper chance of knowing what was being alleged against him and by whom but also no chance of testing the correctness of the allegations that were in fact made in the written report.

In view of these serious defects in the enquiry by the domestic tribunal it was not possible for <ORG> to place any reliance an the findings of that domestic tribunal in order to decide whether permission to dismiss should be given Under s. 33 of the Industrial Disputes Act. ( <CITATION> ) Evidence was however adduced by the appellant before <ORG> to make out its case that the workmen concerned were in fact guilty of the alleged misconduct. On behalf of the respondents it has been urged before us that once it is found that the enquiry by the domestic tribunal has been defective it was not open to <ORG> before which the application under section 33 is made to allow any evidence to be adduced before it. We see no force in this contention. /When an application for permission for dismissal is made on the allegation that the workman has been guilty of some misconduct for which the management considers dismissal the appropriate punishment the <ORG> has to satisfy itself that there is a prima facie case for such dismissal. Where there has been a proper enquiry by the management itself the <ORG>, it has been settled by a number of decisions of this <ORG>, has to accept the findings arrived at in that enquiry unless it is perverse and should give the permission asked for unless it has reason to believe that the management is guilty of victimisation or has been guilty of unfair labour practice or is acting mala fide. But the mere fact that no enquiry has been held or that the enquiry has not been properly conducted cannot absolve the <ORG> of its duty to decide whether the case that the workman has been guilty of the alleged misconduct has been made out.' The proper way for performing this duty where there has not been a proper enquiry by the management is, for the <ORG> to take evidence, of both sides in respect of the alleged misconduct. When such evidence is adduced before the <ORG> the management is deprived of the benefit of having the findings of the domestic tribunal being accepted as prima facie proof of the (1)  (1) S. C. R. 32.

alleged misconduct unless the finding is perverse and has to prove to the satisfaction of the <ORG> itself that the workman was guilty of the alleged misconduct. We do not think it either just to the management or indeed even fair to the workman himself that in such a case the Industrial <ORG> should refuse to take evidence and thereby drive the management to make a further application for permission after holding a proper enquiry and deprive the workman of the benefit of the <ORG> itself being satisfied on evidence adduced before it that he was guilty of the alleged misconduct.

It may be pointed out in this connection that in <CITATION> (1) the management's application under section 33 had not been preceded by any enquiry into the misconduct of the workman and that itself, it was urged on behalf of the workmen was a reason why the application should be rejected. <ORG> held that all the evidence 'which might have been taken in the enquiry by the management had been led before it and it was in full possession of the facts and no question of any prejudice to the workmen arose as it would be open to it on a review of the entire, evidence before it to decide whether the application for permission to dismiss should be granted or not. On a consideration of that evidence the <ORG> held as regards 16 of the workmen concerned that there was no evidence that they had taken part in the alleged misconduct of "'go slow" or instigation to ,,,go slow". No objection appears to have been taken either before the Appellate <ORG> or before this Court to the application being disposed of on the evidence taken before the Industrial <ORG> itself, and in, fact this Court allowed the application under section 33 in respect of all the 48 workmen on the basis of the evidence given before the Industrial <ORG>.

(1) [1959] S. C. R. Suppl. 11 p. 836.

It is worth noting that several years before this, <ORG> had in <NAME> v. <ORG> (1), laid it down that the materials on which a <ORG> acts in disposing of an, application for permission to dismiss may consist of (1) entirely the evidence taken by the management at the enquiry and the proceedings of the enquiry, or (2) that evidence and in addition thereto further evidence led before the <ORG>, or (3) evidence placed before the <ORG> for the first time in support of the charges.

It was pointed out there that the last mentioned case pre- supposed an absence of a prior enquiry by the management. It is not without significance that even though the question whether in the absence of a proper prior enquiry by the management evidence can for the first time be placed before the <ORG>-in support of the alleged misconduct had been discussed in <ORG> (1), no objection to the taking of such evidence for the first time before the <ORG> was raised before this Court on behalf of the respondent in <NAME> Case (2). Nor can we ignore the fact that for a long time now, it has been settled law that in the case of an adjudication of a dispute arising out of a dismissal of a workman by the management (as distinct from an application for permission to dismiss under s. 33 ), evidence can be adduced for the first time before the Industrial <ORG>. The important effect of the omission to hold an enquiry is merely this : that the tribunal would not have to consider only whether there was a prima facie case but would decide for itself on the evidence adduced whether the charges have really been made out. This war, (1)  L. A. C., 697.

(2) [1959] S. C. R. Suppl. 11 P. 836.

recently pointed out again in the <CITATION> (1) in these words : ',if no enquiry has in fact been held by the employer; the issue about the merits of the impugned order of dismissal is at large before the <ORG> and, on the evidence adduced before it, the tribunal has to decide for itself whether the misconduct alleged is proved......... The reasons for which it is proper for the <ORG> to take evidence itself as regards the alleged misconduct when adjudicating upon a dispute arising out of an order of dismissal which has been made by the management are equally present in the case where the management makes an application for permission to dismiss without having held a proper enquiry. In our opinion the tribunal rightly allowed the management to adduce evidence before it in support of its application for permission to dismiss even though the domestic enquiry held by it was highly defective as pointed out above.

Of the six witnesses examined on behalf of the management the important evidence as regards the participation in the "go slow" during the period February 12 to February 18 is given by <NAME>, Chief Engineer, Kanpur the chief Chemist and <NAME>, a machine man.

On February 13, 1955 the Chief Engineer submitted a report to the Secretary, <NAME> about what he had seen that very day. He referred to this report in an affidavit sworn before a Magistrate and stated that the facts stated in the report was true. In his deposition before the <ORG> he has referred to this affidavit and said that the statements made therein are correct. While a more satisfactory way of putting <NAME>'s evidence on record, would have been to record his testimony on all these matters mentioned in the affidavit and report directly, it cannot be reasonably said that the statements made in the affidavit ,and report do not amount to legal evidence on (1) [1960] (1) S.C.R. 806.

which the Tribunal could act. In this report the Chief Engineer states thus :-

"I noticed that groups of persons from the assembled crowd moved about the factory announcing the commencement of the go-slow" and actually threatened those who would not fall in line with them. I particularly noticed <NAME>, <NAME>, <NAME>, <NAME> and <NAME> and others whose name didn't remember in the crowd taking an active part Later in the report he says that:

"as a result of the instigation as aforesaid and perhaps as planned in advance, the 'go- slow' actually started with the incoming shift. The abnormally slow running of the mill Engine and the Cane Carrier came to my notice immediately. I personally checked up the stream pressure and found that it was normal. Thereupon I called <NAME>, Mill House Fitter and expressed my resentment at a low speed, after all my persuasions and directions to them not to resort to goslow. <NAME> had the impudence to tell me that it shall remain low as they had gone on go slow and the question of restoring the normal speed did not arise. Finding <NAME>'s attitude as it was, I went with the Shift Engineer Mr. <NAME> to <NAME> who was at the Mill Engine and <NAME> who was at the Cane Carrier Clutch, and asked them to restore normal speed immediately.................. They paid no heed to my orders and were determined to continue the go slow."

It is important to notice that of the persons named by this witness as having taken an active part-by which he obviously meant an active part in moving about the factory announcing the commencement of the go slow-<NAME> and <NAME> were both engaged in the Evaporator section, <NAME> being an Evaporator Cooly while <NAME> being an Evaporator Reliever; <NAME> was an Assistant Panman while <NAME> and <NAME> were Engine men, <NAME> being an Assistant Fitter and <NAME> being a Pitter. We have no hesitation in believing as correct these statements made by the Chief Engineer in his report made on February 13. There can be no doubt therefore that <NAME>, <NAME> and <NAME> actually participated in the go slow. As regards <NAME>, <NAME>, <NAME> and <NAME> and <NAME> we have to remember that it is not disputed that there was in fact a go slow in the different jobs on which these men were engaged. If they had not been proved to have taken an active part in promoting the go slow, there may have been some scope for saying that the go slow in their jobs was the consequence of the go slow at the <ORG> and not deliberate go slow on their part. When however we find that these persons were active in asking other workmen to go slow, they cannot be reasonably heard to say that the go slow in their own jobs was not deliberate on their part. The <ORG> was in our opinion clearly in error in thinking that the go slow in the jobs where these persons were engaged was merely the result of the go slow at the <ORG> end and not deliberate go slow on their part. In our opinion, the evidence of <ORG> definitely establishes that these several persons, <NAME>, <NAME> Singh, <NAME>, <NAME>, <NAME>,- <NAME> Mistry, <NAME> and <NAME> did actually participate in delaying production.

The Chief Chemist, <NAME>, submitted to the Secretary one report on February 12, 1955 and ,two more reports on February 13. In the first report he said that having received information at about 9.30 A. m. that <NAME>, Evaporatorman, was inciting persons who were doing periodical cleaning of the Evaporators that day that they should do the cleaning slowly as if the "go-slow" had already started in their case, he immediately went to the Evaporators and questioned <NAME> about his alleged conduct and that <NAME> ultimately admitted that it was true but that he had merely been saying what others had decided.

In the second report marked Ex. 4 (b) the Chief Chemist states that trouble started on the midnight of February 12 after "C" shift was over and that he noticed "<NAME>, <NAME>, <NAME>, <NAME>, <NAME> and <NAME> among others asking other workers to stay on and see that the go slow was actually started. He says also that the noticed Kawalpati and <NAME>, Centrifugal Coolies and a few others taking a prominent part in proclaiming that go slow must be started.

In the third report the Chief Chemist stated that after 8 A. M. on February 13 he noticed <NAME> and <NAME> and <NAME>, <NAME> and <NAME> and others going round the factory and openly saying that as the go slow had started any workman who sided with the factory will be severely dealt with. We can see no reason to doubt the truth of the statements made by the Chief Chemist. Of the persons named by him, <NAME>, <NAME> and <NAME> were also named by <NAME> as we have already pointed out above. In addition to these <NAME>, <NAME>, <NAME>, <NAME> <NAME> and <NAME> must be held to have actually asked others to go slow and when this fact is taken with the admitted fact that "go slow" was actually practiced at the stages of production where these workmen were engaged there can be no escape from the conclusion that they were guilty of active participation in go slow, As regards <NAME> and <NAME> we have, apart from this evidence of the Chief Chemist that they were going round the factory saying that go slow must be continued, the evidence of <NAME> that on February 14 he found these two, not operating the machine, and sitting there on a gunny bag and sugar was falling down from the Pugmill. From this evidence of <NAME> taken with the evidence of the Chief Chemist, it appears clear beyond any reasonable doubt that these two workmen, <NAME> and <NAME> did also actively participate in "go slow".

We are therefore of opinion that the evidence adduced before the <ORG> clearly establishes that the following respondents, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME> and <NAME> were guilty of misconduct within the meaning of paragraph M el. (1) sub-el. (u) of the Standing Orders. Of these <NAME> and <NAME> are reported to be dead.

Before however permission can be granted to dismiss them for this misconduct we have to see whether the charge of mala fide and victimisation brought against the management is true. The workmen's suggestion which found favor with the <ORG> was that it was because of the <ORG> activities of these 21 workmen that the management decided to take action against them and that the allegation that they had taken part in the go slow was merely a sham excuse. As regards the above workmen who it is established by the evidence were in fact guilty of go slow, can it be said that though the management takes action against them for this misconduct the real reason for the managements proposal is these people's <ORG> activities ? We are unable to see any. justification .for this view. If the misconduct had not been serious and still the management sought to dismiss them, taking advantage of the fact that under the Standing Orders a punishment of dismissal could be given, there might have been some scope for an argument that the apparent reason for the management's action was not the real reason. It is not possible however to consider actual participation in go slow as anything but very serious misconduct and no management can be accused reasonably of mala fide or of revengefulness if, it proposes punishment of dismissal for such conduct. The Industrial <ORG> appears to have been impressed by the fact that 13 other workmen who were suspended were pardoned and taken back while 21 ,were not allowed to join duty. It appears clear that several at least of the 13 who had been taken back were also active members of the <ORG>. There is no ground for saying therefore that the management discriminated against these 21 workmen because of the fact that they were active members of the <ORG>. It may very well be that they have been taken back as their active participation in the go slow was not established. Without knowing fully the circumstances under which those other 13 were taken back to work it is not proper to hold that there has been any discrimination against these 2 1. Learned Counsel for the respondents next contended that mala fide and victimisation were 'writ large on the conduct of the management 'in preventing the holding of a meeting for conciliation which was attempted by the Assistant <ORG> Commissioner. It is also urged that by this conduct the company provoked the workmen to resort to go slow. Even if it were' found that the company had deliberately avoided the proposed meeting there would be no ground for saying that the workmen had been "provoked" to go slow. Inspite of the recommendation of the go slow committee and the resolution of Bihar Government ,go slow" continued to be a misconduct under the Standing Orders "-and a mere refusal of the company to attend the conciliation meeting cannot be considered such provocation as would compel or justify the commission of misconduct. Nor can we find-even assuming for the present that the company did deliberately prevent the conciliation meeting before the 12th February-that this showed an intention to victimise. Before an industrial adjudication can find an employer guilty of an intention to victimise there must be reason to think that the employer was intending to punish workmen for their <ORG> activities while purporting to take action ostensibly for some other activity. It would-be unreasonable to think, that the appellant, expected that if the meeting was not held on the date as proposed the workmen were surer to start go slow and that would give the management an opportunity of proceeding against the <ORG> workers. It was not unreasonable for the management to expect better sense from workmen and to hope that they would not commit misconduct too readily. While we do not wish to say that no unfair conduct on the part of the management in negotiations over the workers' threat to go slow would ever justify a finding of mala fides on the employer's part, we must clearly say that the mere asking for adjournment of a conciliation meeting is not such conduct on which mala fides or an intention to victimise can be reasonably based. Apart from this, we are not satisfied that in the present case the management was guilty of any deliberate attempt to delay the conciliation meeting. The reasons for asking an adjournment of the meeting were clearly mentioned in the several telegrams sent by the management to the <ORG> Commissioner and there is nothing on the record to justify a conclusion that these reasons were not true or honestly given.

Our attention was drawn to the delay in holding the enquiry and the subsequent delay in filing the application for permission to dismiss.

That there has been great and indeed unusual delay is clear. The charge-sheets were served on the workmen in March 1955 and the explanations were received about the middle of March, but the domestic enquiry took place in September 1955. Trying to explain this delay of several, months, <NAME>, the General Secretary, has stated thus :-"The enquiry into the charge sheets could not be commenced before the beginning of September, 1955, because of my continued ill health which necessitated complete rest for several weeks at a time and also because of my multifarious Assignments which took me many a time to Patna and outside the State of Bihar. I could not assign the matter of holding the enquiries to other officers namely Chief Engineer or the Chief Chemist because they were themselves complainants against the workmen concerned."

We are unable to consider this explanation wholly satisfactory and are inclined to think that the management showed lamentable callousness in this matter of proceeding with the enquiry .In cases of this nature the enquiry should be held as early as possible, specially when the management takes the step of putting the workmen under suspension. No application for permission to dismiss was filed immediately. It was only in August 1956 that such an application was filed under s. 22 of the Industrial Disputes Appellate Tribunal Act before <ORG>, Calcutta. But that was rendered infructuous on account of the disposal of the matter before <ORG>. The present application was made as late as December 30, 1956, after an application by the workmen themselves under section 23 of the Industrial Disputes. Appellate Tribunal Act had been withdrawn. We do not find any satisfactory explanation for the management's delay in applying for-permission to dismiss. At the same time, it is not possible to say that these delays show even remotely that in making the application for per-

minion to dismiss the management was guilty of mala fides or an intention to victimise.

We have therefore come, to the conclusion that the <ORG>'s order in refusing permission to dismiss these workmen, viz., <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME> and <NAME> was entirely wrong and unjust and cannot be allowed to stand. As however even though no stay of the <ORG>'s order was granted when special leave was allowed by thins <ORG> and still the workmen concerned have not been allowed to work or paid their wages the permission should not be granted to dismiss them before the date of this judgment.

As the two respondents <NAME> and <NAME> are dead, there is no question of granting permission now to dismiss them, even though on the evidence on the record, the appellant might have been entitled to permission to dismiss these, two with effect from this date, if they were living. These two will be entitled to wages till the date of their death. As regards the other respondents we are of opinion that the application was rightly refused inasmuch as the evidence adduced before <ORG> does not establish the charge of misconduct against them.

We accordingly allow the appeal in part and set aside the order of <ORG> in respect of these 13 workmen named above and order that the management is granted permission to dismiss them with effect from the date of this judgment. There will be no order as to costs. Appeal allowed in part.