PETITIONER: <ORG>. Vs. RESPONDENT: ITS WORKMEN AND OTHERS DATE OF JUDGMENT: 17/10/1958 BENCH: <NAME>, J.L. BENCH: <NAME>, J.L. IMAM, SYED JAFFER DAS, S.K. CITATION: 1959 AIR 389 1959 SCR Supl. (1) 222 CITATOR INFO : F 1960 SC 160 (28) R 1961 SC1158 (12) ACT: Industrial Dispute-Illegal strike-Enquiry by company- Rejection by <ORG> of application for Permission to dismiss workmen-Fresh enquiry if barred-Notice of enquiry, how to be effected -Dismissal after fresh enquiry- jurisdiction of <ORG>- If can interfere with decision of company-lndustrial Disputes Act (XIV Of 1947), s. 33 . HEADNOTE: During the pendency of the adjudication of a reference be- fore <ORG>, the workmen illegally confined the works manager and went on strike. The company issued notices to the workmen to resume work immediately but they refused. The company declared a lock out and served charge sheets on the workmen calling upon them to submit their explanations. No explanation having been submitted the company held an enquiry and found the workmen guilty of gross misconduct amounting to major misdemeanour which merited dismissal. The company applied to the <ORG> under S. 33 Of the Industrial Disputes Act for permission to dismiss the workmen. The <ORG> granted permission in respect of three workmen but refused it in respect of 61 workmen on the ground that there was reasonable doubt as to their identity and complicity in the incident. The order was upheld in appeal by the Labour Appellate <ORG>. Thereupon the company took fresh proceedings against the 64 workmen. It sent charge sheets to them by registered notices to their addresses registered with the company and also affixed notices on its notice boards both inside the premises and outside the gate. The registered notices could not be served upon workmen Nos. 2 to 24 as they were not found at the addresses given. The company wrote to <ORG> for the addresses of these workmen but received no reply. The company held the enquiry and, as at that time no proceedings were pending under the Act, terminated the services of the 64 workmen. The Government made a reference in respect of the termination of services of the workmen. Sixteen workmen resigned and one pleaded guilty. With respect to the rest the <ORG> held that workmen Nos, 2 to 24 had not been properly served and the order of the termination of their services was bad but upheld the order in respect of the remaining workmen. Both parties appealed to the Labour Appellate <ORG>. The Appellate <ORG> dismissed the appeal of the company but allowed that of the workmen holding that the testimony of the works manager could not be accepted and apart from that evidence there was no other evidence to show which of the workmen had taken part in wrongfully confining the works manager and in the illegal strike. Held, that the Appellate <ORG> was in error in setting aside the order of termination of service on the around that it was unable to accept the testimony of the works-manager. It was for the management to determine what constituted major misconduct within its standing orders sufficient to merit dismissal of a workman but in determining such misconduct it must have facts upon which to base its conclusions, and it must act in good faith, without caprice or discrimination or motive of vindictiveness or intimidation, without resorting to unfair labour practice and in accordance with the accepted rules of natural justice. When the management has so acted its judgment can- not be questioned. The Appellate <ORG> proceeded as if it were sitting in appeal against the decisions of the managerial enquiry and this was beyond the scope of its powers. <CITATION> . 1. R. 1958, S.C. 130; <CITATION> . 1. R. 1957 S. C. 82 and Hanuman jute <CITATION> , A.I.R. 1957 S.C. 194, followed. Held,.further, that both <ORG> and the Appellate <ORG> were wrong in holding that proper notices had not been given to workmen Nos. 2 to 24. The standing order merely required that service of notice upon a workman may be made by communicating the same orally to the worker and/or by fixing the same on the company's notice board. The Company acted in conformity with this standing order by affixing the notices on its notice board. Held, further, that the second enquiry was not barred by the principle of Yes judicatd on account of the previous findings of the <ORG> on the application under s. 33 . As the purpose Of s. 33 is merely to give or withhold permission and not to adjudicate upon an industrial dispute, any finding under s. 33 could not operate as Yes judicata and bar the raising of an industrial dispute. There was nothing in S. 33 or in the findings of the 224 <ORG>s in the s. 33 proceedings which could debar the company from holding the second enquiry and dismissing the workmen. JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 500 of 1957. Appeal by special leave from the judgment and order dated September 11, 1956, as altered by Order dated September 28, 1956, of <ORG>, Calcutta, in Appeals Nos. Cal. 208 and 223 of 1956, arising out of the Award dated June 7, 1956, of <ORG>, Calcutta, in Case No. VIII-233 of 1955. <NAME>, Attorney-General for India, <NAME> and <NAME>, for the appellants.

<NAME>, for respondents Nos. 2 to 25 and 27 to 48. 1958. October 17. The Judgment of the Court was delivered by KAPUR, J.-This is an appeal by special leave against the order of <ORG> and the question for decision is the dismissal of some workmen. The appellant before us is the employer and the respondents are some of' the workmen, 47 in number who might be divided into two sets, the first set Nos. 2 to 24 and second Nos. 25 to 48. Out of the latter No. 26 is dead.

The facts leading to the appeal are that on August 3, 1953, <ORG> referred under s. 10 of the Industrial Disputes Act, hereinafter called the Act, to the second <ORG>, an industrial dispute between the appellant and its workmen. During the pendency of this Reference the workmen acted in a manner subversive of discipline, wilful insubordination and disobedience inasmuch as they surrounded by forming a kind of cordon round <NAME>, acting Works Manager of the company, illegally confined him in a small place in the factory premises and kept him so confined between the hours of 9-15 a.m. to 2-15 p.m., till he was rescued by the police. The cause of this action on the part of the workmen is stated to be a dispute as to the payment of Puja bonus for the year 1953. The same day the workmen went on strike at 9-15 a.m. <NAME> called upon them to resume work but they refused and the appellant- company issued notices at 9-45 a. m., and 10-45 a.m. asking the workmen to resume work immediately. The workmen took no notice of these notices and the appellant company after the arrival of the police declared a lock out. Some of the workmen were then arrested. The appellant company then served charge sheet on the workmen calling upon them to submit their explanations within 24 hours. The workmen gave no explanation. An enquiry was held and the workmen were found guilty of gross misconduct amounting to major misdemeanour which merited dismissal and the company proposed to dismiss them. For that purpose the appellant company on October 31,1953, made three applications Cal. Nos. 518, 519 and 557 of 1953 to the <ORG> for permission under s. 33 of the Act to dismiss 170 workmen with effect from October 6, 1953. During the course of the proceedings the appellant company withdrew its case against a large number of workmen and the proceedings were ultimately continued against 67 workmen. One of these workmen died and two resigned leaving 64 workmen against whom the proceedings were continued.

The workmen in their defence denied the commission of any offence and also denied the receipt of charge sheets. They pleaded that there was no enquiry, that the lock-out was illegal and that the appellant had acted in contravention of the principles of natural justice. The three applications were heard together and were disposed of by one order. The <ORG> held that a prima facie case had been made out for granting permission for dismissal of workmen directly involved in the incident; that the appellant company had acted bona fide and that it was not guilty of discrimination, vindictiveness or arbitrary action. Although it had started cases against 170 workmen it took back a majority of them on their expressing regret. The <ORG> gave permission for the dismisSal of only three workmen <NAME>, <NAME> and <NAME> and permission with regard to the rest was refused on the ground that there was reasonable doubt as to their identity and complicity in the incident. On January 8, 1954, the workmen made an application under s. 33A of the Act which was allowed on July 2, 1954. Three appeals were filed, two by the appellant company against the orders under s. 33 and the other made under s. 33A of the Act. The third appeal was filed by workmen as to the dismissal of three workmen. On March 29, 1955, the appeal of the company with regard to application under s. 33 of the Act was dismissed and so was the appeal of the workmen and thus the order as to 3 workmen was upheld. The employers contended that as the strike was illegal, the management had the right to terminate the services of the workmen and the <ORG> was therefore bound to accord sanction to the management but the Labour Appellate <ORG> did not go into this matter as the question had not been raised at any pre- vious stage. On the same day tile Labour Appellate <ORG> set aside the order of the <ORG> under s. 33A on the ground that the application under that section was misconceived and the order made by the <ORG> was without jurisdiction.

On April 20, 1955, the management of the appellant company took fresh proceedings against the 64 workmen and in order to serve charge sheets on them sent registered notices to their addresses, registered with the appellant company, and also affixed notices on its Notice Boards both inside the premises and outside the gate of the premises which remained affixed there from April 20, 1955, till June 9, 1955. Out of the registered notices sent notices could not be served on workmen Nos. 2 to 24 and they were returned. to the sender with the remark that the addressees had either left or their addresses were unknown. On April 28, 1955, the appellant company wrote a letter to the Labour Commissioner informing him of the offences committed by the workmen and the action that it proposed to take against its workmen. On May 20, 1955, the appellant company wrote to the secretary of <ORG> asking him for the addresses of the workmen who had not been served but it received no reply from the secretary. The enquiry started by the management of the appellant company terminated on June 9, 1955, and as at that time no proceedings were pending under the Act, the appellant company terminated the services of all the 64 workmen on June 22, 1955.

The termination of the services of these workmen gave rise to an industrial dispute and a reference was made by <ORG> on August 8, 1955, in regard to all the 64 workmen. The points referred for adjudication.were:- (1)Whether the dismissal of the 64 workmen mentioned in the attached list is justified. Whether the <ORG> should not reinstate them. What compensation should they be paid for the action taken against them by the <ORG> ? (2)What compensation should be paid to them in respect of the period of enforced idleness from 6-10-53, particularly for the period they were refused permission to rejoin work even after their cases had been disposed of by the Tribunal (3)Whether the Tribunal Awards concerning the 64 workmen have been properly implemented. What compensation should be paid to them by the company for not having properly implemented the Award ?

Sixteen workmen resigned and one of them <NAME> pleaded guilty and therefore proceedings were continued against only 47 workmen. <ORG> (6th <ORG>, West Bengal) made its award on June 7, 1956. It held that the workmen Nos. 2 to 24 had not been properly served and ordered their reinstatement as from April 1, 1955, with back wages, dearness allowance, etc., from April 1, 1955, but upheld the dismissal of workmen Nos. 25 to 48. It held that there was evidence to establish the identity of persons who had taken part in the strike and had wrongfully confined <NAME> and that no bias or illwill could be attributed to the management nor was it inspired by any vindictive motives. It said:

Since there was evidence and it was a possible view, the Tribunal must accept the finding and hold that the dismissal of those workers was justified ". In regard to wages the Tribunal held that the strike of October 6, 1953, was illegal as at that time the reference was pending before <ORG>; that the lock out was fully justified as the strikers had taken a belligerent attitude and had actually kept the acting Works Manager illegally confined till he was rescued by the police; that no compensation could therefore be claimed for the period from October 6, 1953, upto the time that <ORG> on March 29, 1955, disposed of the proceedings under s. 33 - but the workmen Nos. 2 to 24 who were held to be wrongfully dismissed and had been ordered to be reinstated but had not been allowed to return to work were entitled to wages but only from April 1, 1955, upto the date of reinstatement. On the third issue i. e. the matter of <NAME>, <NAME> and <NAME> permission for dismissal granted by <ORG> was confirmed on appeal. No question of compensation could arise in their case.

Against this order of the 6th <ORG>, two appeals were taken to <ORG> one by the <ORG> and the other by the appellant company. On September 11, 1956, <ORG> dismissed the appeal of the appellant company and allowed that of the <ORG>. It held that the evidence of <NAME> given in the managerial enquiry in May 1955 could not be accepted. In its order <ORG> said:- In June 1954 Mr. <NAME> was unable to give evidence against the appellants in Appeal No.Cal. 223 of 1956. In May 1955 he gave evidence connecting the appellants with the misconduct that was committed on the 6th October, 1954. No other evidence is to be found on the record to show that the workmen who are concerned in these proceedings committed misconduct on the 6th October, 1954."

In these circumstances, it is difficult to act on the evidence given by Mr. <NAME> in the managerial enquiry in May 1955 After refering to the principles laid down in the case of <ORG> v. Its workmen (1) <ORG> ruled out the evidence of <NAME> and as there was no other evidence to prove misconduct against the workmen, it came to the conclusion that the decision of the managment was perverse. It held:- " In these circumstances, we set aside the order of <ORG> giving permission to the management to discharge the appellants from service and consequently the order of <ORG> giving permission to discharge workmen Nos. 25 to 48 was set aside. <ORG> suo motu amended this order on September 28, 1956, and the following order was substituted in place of the operative portion 'of the order of September 11, 1956:

" In these circumstances we set aside the order of the.- Industrial Tribunal upholding the action of the Management in 'discharging the appellants from service........ In the result the Award under appeal con I firmiag the action of the Management in discharging twenty four workmen from service is set aside. In other respects that Award is confirmed. In other words we order the reinstatement of the twenty four workmen discharged by the Management with back wages for the period between the 1st of April, 1955, to the date of reinstatement ".

Against this order the appellant company has come up in appeal by special leave and on its behalf the learned Attorney General raised two questions : (1) that appeal to <ORG> on behalf of the Union was not competent as no question of law was involved and (2) that it could not sit in appeal against the managerial enquiry. It is not necessary to go into the first question because, in our opinion, the second question raised is well founded. The principles which govern the power of an Industrial Tribunal to interfere with the decision of the employer following an enquiry made by him were laid down by this Court in <CITATION> (2) where <NAME>, said at page:138:

(1) (1952) L.A.C. 490.

(2) A.I.R. 1958 S-C. 130.

Undoubtedly, the management of a concern has power to direct its own internal administration and discipline; but the power, is not unlimited and when a dispute arises, <ORG> have been given the power to see whether the termination of service of a workman is justified and to give appropriate relief. In cases of dismissal or misconduct, the <ORG> does not, however, act as <ORG> and -substitute its own judgment for that of the management. It will interfere (i)-when there is want of good faith, (ii) when there is victimisation or unfair labour; practice, (iii) when the management has been guilty of a basic error or violation of a principle of natural justice, and (iv) when on the materials, the finding is completely baseless or perverse."

<CITATION> which was a case under s. 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950, this Court held that if it was established that the workmen had resorted to illegal strike, that a fair enquiry into the alleged misconduct and insubordination of their workmen had been held by the management without violating any principles of natural justice and as a result of enquiry the management had found the workmen guilty of misconduct and insubordination with which they had been charged and the management had come to the conclusion that continuing the workmen in its employ was dangerous in the interest of the company the Tribunal would not interfere with such order.

<CITATION> (2) it was held that no appeal lies against the order of <ORG> where the <ORG> had examined the question whether the discretion of the employer to dismiss certain workmen was properly exercised, whether the employer was acting bona fide, whether he had resorted to any unfair labour practice or victimization and whether his desire to dismiss the workmen was actuated by any improper motive. It is for the management to determine what constitutes major misconduct within its standing orders sufficient to merit dismissal of a workman but in (1) A.I.R. 1957 S.C. 82.

(2) A.I.R. 1957 S-C. 194.

determination such misconduct it must have facts upon which to base its conclusions and it must act in good faith without caprice or discrimination and without motives of vindictiveness, intimidation or resorting to unfair labour practice and there must be no infraction of the accepted rules of natural justice. When the management does have facts from which it can conclude misconduct its judgment cannot be questioned provided the above mentioned principles are not violated. But in the absence of these facts or in case of violation of the principles set out above its position is untenable.

In our opinion, <ORG> proceeded on correct principles as to its power in regard to an enquiry held by the management and <ORG> seems to have approached the question as if it was sitting in appeal against the decision taken by the management in regard to the termination of service of their workmen. In the instant case none of the principles, which have been laid down by <ORG> as well as by this Court in regard to enquiry by the management into the misconduct of their workmen, have been violated and <ORG> was in error in setting aside the order of <ORG> on the ground that it was unable to accept the testimony of <NAME> as to the identity of persons who bad taken part in wrongfully confining him on the day of the illegal strike. It appears to have proceeded as if it was sitting in appeal against the decision of the managerial enquiry and further it was under a misapprehension as to the nature of the proceedings before <ORG> and before itself, inasmuch as it seems to have been under the wrong impression that the appeal before it arose out of an application under s. 33 -of the Act and that <ORG> had given permission to the appellant company to discharge its workmen. Its amended order shows that it thought, and again wrongly, that really the proceedings were under s. 33A of the Act and it was that mistaken view of the nature of the proceedings which led to its order for reinstatement of the workmen with back wages from April 1, 1955, to the date of reinstatement. <ORG> seems to have overlooked the fact that the appeal before it arose out of a Reference made by the West Bengal Government under s. 10 of the Act. This misconception as to the nature of the proceedings vitiated its order as <ORG> misdirected itself as to the scope of the powers to be exercised by it and consequently it led to the making of an erroneous order.

The question then arises as to whether the managerial enquiry was vitiated by the infraction of any principle of natural justice. According to the standing orders Major Misdemeanors have been defined in el. 15, the relevant portion of which is:-

(a) Willful insubordination or disobedience.

(b) Inciting to take part or taking part in an illegal strike. (Any strike resorted to without giving notice as provided under Section 22 of the Industrial Disputes Act will be considered as illegal) The mode of service of notice as given in the standing order No. 15 is as follows:-

No order of dismissal shall be made unless the worker concerned is informed and given opportunity of explaining the circumstances alleged against him, but to avail himself of this privilege such worker must attend before the management when directed to do so. Service of any notice or direction upon a workman to attend under this rule may be made by communicating the same orally to the worker concerned and/or by fixing the same on the Company's Notice Board ".

In the present case the management of the appellant company took the precaution of affixing the notices on its Notice Boards both inside and outside the company's premises, and there is evidence to show that they remained affixed from April 20, 1955 till June 9, 1955, i.e. right upto the termination of the enquiry. It also sent Registered Acknowledgement Due notices to all workmen. When some of them came back unserved it wrote to the secretary of the Union asking for the addresses of the workmen but that gentleman did not ,Care to reply to this letter. The management also wrote to the Labour Commissioner as to the action it was proposing to take.

<ORG> held that there was no proper notice to workmen Nos. 2 to 24 and the mere affixing of the notices on <ORG>-of the company was not sufficient as the workmen could not enter the appellant company's premises due to the look out. It overlooked the evidence as to the notices being affixed on the appellant company's board outside its gate from where the workmen were not excluded as a result of the lock out and it was open to them if they so desired to go and look up the notices there. Further the Tribunal was of the opinion that the appellant company might have sent the notices to the secretary of the <ORG> " for circulation to the absentees ". In the first place this is not one of the recognised modes of effecting service and in this case the company would have been justified in not taking this action after the way that gentleman had neglected even to reply to the appellant company's letter asking him to supply the addresses of the workmen. Apart from complying with its standing orders the appellant company made every effort under the circumstances to serve notices on its workmen. No principle of natural justice has, in our opinion, been infringed and the finding as to the workmen having no notice of the charges against them and consequently not having a proper opportunity to meet the case against them cannot be sustained. It cannot be said that the workmen did not have a proper opportunity to answer the case against them. If the rule were as the order of <ORG> holds it to be then by their action of not giving proper addresses to the employer or abstaining from looking up <ORG>s where under the standing orders notices were required to be affixed the workmen might make it impossible for an employer to take disciplinary action assuming that such action is necessary or justified. <ORG> did not consider or apply its mind to this aspect of the case, it being under a misapprehension as to correct nature of the proceedings.

Counsel for respondents raised four points: (1) that there was no proper notice served on workmen Nos. 2 to 24 after the-decision of <ORG> refusing permission to dismiss the workmen under s. 33 of the Act ; (2) that no second enquiry could be held because the earlier findings of the <ORG> on the application under section 33 of the Act would not be challengeable on the principle of res judicature; (3) that there are basic errors in the award of <ORG> which was rightly interfered with on appeal by the Labour Appellate <ORG> and (4) that the workmen were entitled to compensation. As to notices the submission of the counsel for the respondents was that notice given to the workmen Nos. 2 to 24 was not adequate as the employer did not send the notices to the <ORG> for being served on the workmen and in any case in order to serve the workmen properly it was necessary in the circumstances of this case for the employer to advertise the case in Bengalee newspapers. We have already held that in the circumstances of this case the appellant company had done its best to serve the workmen and had complied with the standing orders and it was not necessary for the appellant to do anything more. This contention of the respondents' counsel must therefore be repelled.

As to the applicability of the principle of res judicata the argument raised by counsel for respondents was that the findings of <ORG> in proceedings under s. 33 of the Act which were confirmed by <ORG> barred the right of the management of the appellant company to start a fresh enquiry in respect of the same incident which formed the subject matter of the previous enquiry. There is no force in this contention, which seems to be based on a misapprehension as to the nature and scope of proceedings under s. 33 . That section does not confer any jurisdiction on a <ORG> to adjudicate on a dispute but it merely empowers the <ORG> to give or withhold permission to the employer during the pendency of an industrial dispute to discharge or punish a workman concerned in the industrial dispute. And in deciding whether permission should or should not be given, the Industrial <ORG> is not to act as a reviewing tribunal against the decision of the management but to see that before it lifts the ban against the discharge or punishment of the workmen the employer makes out a Prima facie case. The object of the section. is to protect the workmen in pending industrial disputes against intimidation or victimisation. As said above principles governing the giving of permission in such cases are that the employer is not acting mala fide, is not resorting to any unfair labour practice, intimidation or victimisation and there is no basic error or contravention of the principles of natural justice. Therefore when the <ORG> gives or refuses permission it is not adjudicating an industrial dispute, its function is to prevent victimisation of a workman for having raised an industrial dispute. The nature and scope of proceedings under s. 33 shows, that re- moving or refusing to remove the ban on punishment or dismissal of workmen does not bar the raising of an industrial dispute when as a result of the permission of the Industrial <ORG> the employer dismisses or punishes the workmen. <CITATION> (1), <CITATION> (2). <CITATION> (3 4V44) <NAME>, (as be then was) said at p. 1256:-- "The purpose of these two sections (s. 33 of the Industrial Disputes Act and s. 22 of the Industrial Disputes (Appellate <ORG>) Act) being to determine whether the ban should be removed or not, all that is required of the authority exercising jurisdiction under these two sections is to accord or withhold permission ".

As the purpose of s. 33 of the Act is merely to give or withhold permission and not to adjudicate upon an industrial dispute, any findidg under s. 33 would not operate as res judicata and bar the raising of an industrial dispute nor is there anything in the section itself or in the findings arrived at by <ORG> in s. 33 proceedings dated June 6, 1954, or of <ORG> dated March 29, 1955, (I)  S.C.R. 720. 788. (2) A.I.R. 1057 S.C. 82. (3)  I S.C.R. 1241.

which would debar the appellant company from holding the second enquiry or dismissing the workmen provided the principles above set out are complied with. It was next contended that in the present case there was a basic error within the meaning of the rule laid down by <NAME>, in <CITATION> (1). The - basic error according to counsel was this that the appellant company's witness Serjeant Boards had stated that the number of persons who had confined and were surrounding <NAME> was 100 to 130 persons and if out of them 106 were reinstated there could not be 67 workmen left to be proceeded against. The appellant company had started proceedings against 170 workmen i. e. all their workmen and after reinstatement of a large number of them only 67 remained against whom the appellant company took proceedings with a view to take action against them and. it was in regard to these persons that permission for dismissal was sought under s. 33 . It is significant that this basic error does not seem to have been argued either before <ORG> or <ORG>, on the other hand, the parties seem to have proceeded on the basis that the number of workmen proceeded against by the appellant company was 67 out of whom 64 were left after three were allowed to be dismissed. Out of the rest 16 bad resigned and there were only 48 persons whose cases remained for adjudication by <ORG>. No basic error is therefore made out.

The question of compensation to the workmen from the date when they were ordered to be reinstated i.e. from April 1, 1955, to June 6, 1955, when their services were terminated is equally unsustainable. <ORG> in its order of June 26, 1954, and <ORG> in its order dated March 29, 1955, held the strike to be illegal. Mr. <NAME> Gupta Judge of the 6th <ORG> who gave the award dated June 7, 1956, refused to give any compensation to workmen Nos. 25 to 48 whose dismis- sal. he upheld on the ground that the strike was illegal, (1) A.I.R. 1958 S.C. 130.

the strikers had taken up a belligerent attitude and the lock out was fully justified. <ORG> awarded to the 24 workmen reinstated by its amended order dated September 28, 1956, back wages from April 1, 1956, to the date of reinstatement as was done by <ORG> in the case of workmen Nos. 2 to 24, whom the <ORG> bad ordered to be reinstated. As we have come to the conclusion that the order of reinstatement by <ORG> of workmen Nos. 2 to 24 and by the Appellate <ORG> of workmen Nos. 25 to 48 was erroneous, neither of the two sets of workmen is entitled to back wages by way of compensation.

The appeal is therefore allowed and the decision of <ORG> as to all the workmen and the award of <ORG> as to workmen Nos. 2 to 24 are set aside and the claim for compensation which was argued before us is disallowed. As the workmen have been dismissed and no compensation has been allowed the proper order as to costs is that both parties do pay their costs of this appeal.

Appeal allowed.


JUDGMENT Mitter, J.

1. This is really an unfortunate case for although the merits of the case are in favour of the appellant we are constrained to arrive at a decision adverse to him on the ground of limitation. It appears that one <NAME> obtained a decree for rent against <NAME> and his cosharers in Rent Suit No. 876 of 1916. One <NAME> had the decree assigned to him and he applied for execution of the decree in the year 1920 by sale of the rent property. In that execution the holding in question was sold and it was purchased by a lady of the name of <NAME> for a price of Rs. 1,255 on 27th July 1920. The sale was confirmed in August. Two of the judgment-debtors, one of whom was an infant, applied on 27th July 1923 under Order 21, Rule 90, Civil P. C, for setting aside the sale. At all subsequent stages this application under Order 21, Rule 90 was prosecuted by <NAME> alone. The application to set aside the sale was allowed in the first instance by an order of the <ORG> dated 12th March 1924. When the sale was set aside by this order the <ORG> gave a direction for refund of the purchase-money with interest to the auction-purchaser. The sale proceeds were in excess of the amount due under the decree and therefore the portion of the surplus sale proceeds remained in deposit for payment to the judgment-debtors, the decree-holder having already taken the sum which was found due to him. In accordance with this order, of refund the auction-purchaser withdrew from the <ORG> a sum of Rs. 442.11-9 which really was to be credited to the judgment-debtors as a part of the surplus proceeds which the judgment-debtors would be entitled to in the event of the sale being confirmed. A direction was given to the decree-holder to refund the amount withdrawn by him.

2. The decree-holder however preferred an appeal to the District Judge against the order setting aside the sale. After several intermediate proceedings to which it is not necessary to refer, the sale was ultimately confirmed by an order of the appellate <ORG> dated 17th August 1925. An appeal was however taken to <ORG> against the order confirming the sale by one of the judgment-debtors and not by the present appellant <NAME>. <NAME> however was made a respondent to the said appeal. That appeal was dismissed on 24th March 1927 and on 22nd March 1930 <NAME> put in an application for an order on the auction-purchaser to re-deposit the amount which had been withdrawn by him from the <ORG> out of the surplus sale proceeds.

3. The <NAME> who dealt with the matter in the first instance was of opinion that the auction-purchaser should be compelled to re-deposit the money which he had withdrawn. On appeal however by the auction-purchaser the District Judge was of opinion that she would not be entitled to retain the surplus sale processes but for the plea of limitation which had been taken by her. The District Judge was of opinion that the right of the judgment-debtor for restitution really accrued on 17th August 1925 when the order setting aside the order setting aside the sale, or in other words the order confirming the sale was made by the District Judge on 17th August 1925 under Article 181 of the Schedule to the Limitation Act . As this application for restitution was not made within three years from the time when the right to apply accrued the application was barred by the said article. He accordingly dismissed the application of the judgment-debtor for restitution on the ground of limitation.

4. Against this decision the present appeal has been preferred and it has been contended on behalf of the appellant that the application could not be treated as one under Section 144 , Civil P. C, namely, as an application for restitution. It was really an application for asking the <ORG> to exercise its inherent powers under the provisions of Section 151 , Civil P. C, and in support of this contention reliance has been placed on the recent decision of this <ORG> in the case of <NAME>, <NAME> v. <NAME> in which my learned brother <NAME>, J., held that in the circumstances similar to the present the <ORG> could act under its inherent powers under Section 151 , Civil P.C. The learned Judges did not decide in that case that even if the application be treated as one under Section 151 , Civil P. C, the article of limitation applicable is not Article 181. Of course there is a decision of the Patna High <ORG> which has been referred to by the learned advocate for the respondent in the case of <NAME> v. <NAME> AIR 1925 Pat 1, 'where it was held that an application in such cases comes both under the provisions of Sections 144 and 151 , Civil P.C. The real question therefore in controversy is as to when the right did accrue in the appellant for asking for the refund of the money withdrawn by the auction-purchaser seeing that the sale has now been confirmed and the money being in excess of the decretal amount really belongs to the judgment-debtor. It has been held in a series of cases that the right to apply accrues really on the date when for the first time a decision is given which entitled the parties asking for restitution to have restitution and that was undoubtedly in this case on 17th August 1925.

5. It is argued however that as an appeal was pending against that decision the appellant before us could not consistently ask for restitution, for that position would have been inconsistent with the conduct of the appeal. We were at the first blush inclined to agree with the view, for it was argued on the basis that the appellant was one of the appellants before the District Judge. That however does not appear to be so for the present appellant was merely a respondent in the said appeal and there was in our opinion nothing to prevent appellant from asking for restitution. It is said on behalf of the appellant that he could not have possibly taken that course as that would have affected any right which he might have acquired if the appeal against the order confirming the sale had been allowed. We do not see much force in that contention. It was not he who had appealed; he was rather content with the order confirming the sale. In such circumstances as this the right to ask for refund of the money withdrawn by the auction-purchaser arose on 17th August 1925 and he ought to have applied within three years from that date. We are of opinion therefore that the learned District Judge was right in the view which he has taken. Stress has been laid on a recent decision of their Lordships of <ORG> in the case of <CITATION> . Mr. <NAME> has drawn our attention to a passage in that judgment which runs as follows:

It is at least an intelligible rule that so long as there is any question sub judice between any of the parties those affected shall not be compelled to pursue the so often thorny path of execution which, if the final result is against them, may lead to no advantage.

6. These words were said with reference to the provisions of Article 182 , Lim. Act, and the question which was for consideration before their Lordships of <ORG> was as to whether the word "appeal" in Section 182(2) , Lim. Act, meant any appeal of any kind and their Lordships were of opinion that there was no warrant for reading into the words any qualification that the appeal must be regular or competent and that the parties to such subsequent execution proceedings must be parties thereto or that the whole decree must be imperilled. On the other hand, there are observations of <ORG> in that very case which would go to show that in construing the provisions of the Limitation Act equitable considerations are out of place and the strict grammatical meaning of the words is the only safe guide. In this view we are of opinion that the right to apply accrued as soon as the order of the District Judge was made in August 1925 confirming the sale and as the present application was not made within three years from that date it has been rightly held that the application was barred by limitation. It might be a misfortune to the appellant but we have to administer the law as we find it. The appeal is dismissed. There will be no order as to costs.

<NAME>, J.

7. I agree.


<NAME>, J.

1. In this special leave petition a question was raised regarding the authority and jurisdiction of <ORG> constituted under the Administrative Tribunals Act , 1985 to strike down as constitutionally invalid a rule framed by the President of India under the proviso to Article 309 of the Constitution as being violative of Articles 14 and 16(1) of the Constitution. That depends on a construction of Sections 14(1) , 28 and 29(1) of the Act, as amended, read in the light of Article 323A of the Constitution. Since the question raised was of far-reaching importance we issued a notice to the learned Attorney-General to appear and assist the Court. We heard learned Counsel for the parties including <ORG> on the question at considerable length and reserved judgment. We were later informed by the learned Counsel that the same question had been argued before <ORG> and its judgment was awaited, and they requested us to defer the judgment.

2. <CITATION> 1986 SC 996, the Constitution Bench has held that the Act is a law made by <ORG> under Clause (1) of Article 323A to exclude the jurisdiction of <ORG> Under Articles 226 and 227 of the Constitution. Section 28 of the Act which bars the jurisdiction of all courts except <ORG> is relatable to Clause 2(d) of Article 323A for adjudication of service matters including questions involving the validity or otherwise of such laws on the ground that they abridge the fundamental rights under Articles 14 and 16(1) of the Constitution, and that <ORG> set up under Section 4 of the Act is a substitute of, and not supplemental to, <ORG> providing an equally efficacious alternative remedy for adjudication of such disputes. It has further held that the establishment of <ORG> under the Act therefore takes away the jurisdiction and power of <ORG> to interfere in such matters but it is not violative of the doctrine of judicial review which is a fundamental aspect of the basic structure of our Constitution because Section 28 of the Act which bars the jurisdiction of <ORG> under Articles 226 and 227 of the Constitution preserves the jurisdiction and power of <ORG> under Articles 32 and 136 of the Constitution. It accordingly follows that <ORG> being a substitute of <ORG> had the necessary jurisdiction, power and authority to adjudicate upon all disputes relating to service matters including the power to deal with ail questions pertaining to the constitutional validity or otherwise of such laws as offending Articles 14 and 16(1) of the Constitution That being so, the contention advanced by the petitioners that <ORG> had no authority or jurisdiction to strike down the impugned notification dated March 15, 1980 purporting to amend Section 4 4 of the Central Hindi Directorate (Class III and Class IV) Posts Recruitment Rules, 1961 reserving 100 per cent vacancies to the post of Superintendent to be filled by the Head Clerks and thereby debarring Stenographers (Sr.) from being considered for promotion to that post as being wholly mala fide, arbitrary and irrational and thus offending Articles 14 and 16(1) of the Constitution, must therefore fail.

3. The Special Leave Petition is accordingly dismissed. No order as to costs.