<NAME>, J.

1. The appellents are a limited company incorporated under the Indian Companies Act . They carry on the business of bankers in Burma through the head office at Pyapon and various branches, one of which was at Bogale. They may be conveniently referred to as the <ORG>. The respondents to the appeal are a trading company incorporated in Japan. They carry on business in Burma, and in the course thereof they purchase rice from paddy traders. They may be conveniently referred to as the Japanese company, or as the plaintiffs.

2. In the neighbourhood of Bogale are to be found rice mills to which the traders bring their paddy for the purpose of having it milled. One of these mills, the Natchaungwa Mill, had been mortgaged by its owner to the <ORG>, and at -all times relevant to this appeal the <ORG> were mortgagees in possession of this mill and were milling paddy there for various paddy traders. For brevity's sake this mill will be referred to as the N. mill. It was managed by one <NAME>, under the general supervision of the <ORG>'s branch manager at Bogale, one <NAME>.

3. Paddy traders are, not unnaturally, desirous of anticipating to some extent the realisation of the value of the produce which they bring to be milled ; and In order to do so they obtain advances from the <ORG> on the security of the -produce, the advances being repaid when the produce is sold as rice.

4. The procedure was as follows ;-When a trader desired an advance, on the security of his produce, the mill owner or his manager would fill in a printed form (called warrant of goods) showing the amount of paddy held on behalf of the trader and its value. The warrant of goods recites (anticipatively) that the <ORG> has granted to the trader an advance, and contains undertakings to hold produce, with the consent of the trader (who had to sign the document), on behalf of the <ORG> as security for the advance ; not to deliver up possession of the produce except under the written directions of the <ORG> ; and to affix labels on or near the produce so as to identify it as the <ORG>'s security. On. receipt of this warrant the <ORG> manager would visit the mill and verify the: quantity of produce.. If satisfied, the <ORG> would then make an advance to the trader, the trader signing in favour of the <ORG> (1) a letter of hypothecation which, after acknowledging the warrant of goods as constituting a security for the advance, authorised the <ORG> in default of payment to sell, and (2) ¦ a promissory note for the amount of the advance. Before the millowner or his representative (in this case <NAME> parted with any rice to a purchaser he would require authority from the <ORG> manager so to do, which would only be given, after the security had been cleared.

5. The facts which gave rise to the present litigation may now be stated. One: of the traders who brought his paddy to be milled at the <ORG> mill was one <NAME>. On April 18, 1930, a contract in writing was entered into between <NAME> and the Japanese company by which the former sold to the latter 1,200 bags of <ORG> big mill special rice at a price therein mentioned, to be delivered on May 15, 1930, and to be milled at the <ORG> mill. This contract was witnessed by <NAME>, describing himself as manager of the <ORG> mill. It is not in dispute that <NAME>'s produce at the <ORG> mill was in fact subject to securities (of the nature hereinbefore described) in favour of the <ORG> for advances made to him, though it is denied that that fact was known to the Japanese company. All <NAME>'s produce at the <ORG> mill was noted in the paddy register kept at the mill as being under security to the <ORG>.

6. By April 30, 1930, the milling of <NAME> produce had proceeded so far as to have produced 700 bags of the contract rice, which lay at the N. mill subject to the <ORG>'s security. On that day two documents were signed" by <NAME>. One was a delivery order addressed to "the Godown Master" at the N. mill requesting him to deliver to the Japanese company or order " 700 bags Nagsein big mill special rice, each bag weighing 224 lbs. nett." The other was an invoice or bill to the Japanese company for Rs. 8,310-6-6, the price of the 700 bags, and stating that each bag weighed 224 lbs. nett. Each document had on it a reference to the identifying mark which was on the bags containing the rice, viz., "Mark B.M.S.-B4." On each document were placed the letters O.K., and <NAME> signed his name underneath those letters.

7. It would seem that those two documents were handed to <NAME>, the agent of the Japanese company, by their vendor, <NAME>, and that thereupon; the Japanese company paid to <NAME> the amount shown on the invoice. This document has written on it the words and figures "Checked and paid. <NAME>. 30-4-30."

8. A further block of 350 bags was the subject-matter of a similar delivery order and invoice dated respectively May 1 and 2, 1930, payment of the invoice price (Rs. 4,155-3-0). being made to sew <NAME> on the latter date. The final block of 150 bags was the subject-matter of a similar delivery order and invoice dated May 10, 1930, payment of the invoice price (Rs. 1,780-13-0) being made to <NAME> on May 11, 1930.

9. <NAME>, having received the money, absconded without having paid off the <ORG>'s security, with the result that <NAME> received no authority from <NAME> to release the 1,200 bags of rice. On May 26, 1930, <NAME> wrote <NAME> a letter refusing to deliver the rice. On June 5, the <ORG> telegraphed to the Japanese company that as <NAME> had not cleared his produce loan, they could not deliver. This was followed by a letter of the same date, asserting their security but making alternative suggestions to relieve the situation. These suggestions were not acceptable to the Japanese company, and on June 25, 1930, the plaint in this suit was issued by the Japanese company as plaintiff against <NAME> and the <ORG>, as co-defendants.

10. The claim was for Rs. 14,905-7-0, made up as follows :-(1) Rs. 14,449-7-0 being the contract price with interest at 12 per cent, from May 15, 1930, to the date of the plaint, and (2) Rs. 456-0-0 the value of bags and twine supplied for bagging the contract rice. The cause of action alleged was, as against the <ORG>, wrongful conversion, the <ORG> having sold the rice ; but the vital issue between these parties was whether the <ORG> was entitled to assert its security against the claim of the Japanese company to delivery of the 1,200 bags.

11. In view of the divergent allegations made by or on behalf of the Japanese company in the course of the litigation, their Lordships think it advisable to examine the plaint and the evidence with some care.

12. The plaint alleges (paragraph 2) that the contract of April 18, 1930, was made with the approval of <NAME>, and that it was agreed that the Japanese company on payment of the contract price would be given delivery of the rice. Particulars delivered allege that this agreement was made between <NAME> and <NAME> at the same time as the contract for purchase, that it was oral, and that as evidence of it <NAME> attested the contract for 1,200 bags. The whole of this appears to be fiction, for <NAME>, according to his own evidence, was not present.

13. The plaint further alleges (paragraph 5) that when the delivery order and invoice of April 30, 1930, were signed by <NAME> and signed by <NAME> with the letters O.K., <NAME> gave the Japanese company "to understand" or "an undertaking" that the 700 bags would be delivered on presentation of the delivery orders. It would seem as if a similar allegation is intended to be made in paragraph 6 in relation to the later delivery orders and invoices. These are allegations of contracts made on those respective dates by <NAME>, presumably on behalf of and binding the <ORG>.

14. In paragraph 7 the allegation is made that <NAME> represented that delivery would be made in terms of the delivery orders ; and in the alternative, that <NAME>'s conduct led the Japanese company to believe that on making payments they would be receiving delivery according to the delivery orders without any claim being made by the <ORG>. Finally, in paragraph 8 it is pleaded that the <ORG>'s claim to security had been "waived," or that the <ORG> were estopped from asserting the claim, the representation alleged to ground the estoppel being thus defined : "that on payment of the several sums aggregating Rs. 14,246-6-6, delivery of the 1,200 bags in suit would be given."

15. <NAME> in his evidence had a very different story to tell.. According to him, <NAME>, on behalf of the <ORG>, guaranteed the due performance of all contracts entered into with the Japanese company by traders whose paddy was milled at the N. mill : <NAME> was to countersign the trader's contract "because if the contract was not fulfilled by the trader, he would fulfil the contract." He added that he would not have entered into the contract with <NAME> if <NAME> had not guaranteed its due performance. He gave no evidence of any such verbal representation by <NAME> as to delivery as is referred to in paragraphs 7 and 8 of the plaint, or of any such contract or waiver as are alleged in paragraphs 5, 6 and 8 of the plaint.

16. Although some of the other witnesses for the Japanese company gave evidence supporting the story of a guarantee by <NAME> of the due performance by the traders of their contracts, no one gave evidence of any such verbal representation or contract or waiver as aforesaid.

17. <NAME> denied the story of the guarantee of the contracts. He further denied that by words or conduct did he guarantee that the rice would be delivered.

18. The District Judge who tried the case, dealt with a multitude of issues, some sixteen in number. He rejected the whole story about the alleged guarantee. He found that there was no agreement by <NAME> to deliver the rice on payment of the contract price of the 1,200 bags. He found that <NAME> did not represent to the plaintiffs that the rice would be delivered in terms of the delivery orders or lead the plaintiffs by his conduct to believe that such delivery would be made. He found that the <ORG> had not waived their claim by way of security, nor were they estopped from asserting the same by the conduct of <NAME>. He dismissed the suit as against the <ORG>.

18. The Japanese company appealed to <ORG> at Rangoon, which varied the decree of <ORG> by directing that there should be a decree in favour of the Japanese company against the <ORG>, the exact details of which need not be set out. It is sufficient to say that the decree proceeds upon the footing that the Japanese company was entitled to recover from the <ORG> the full amount claimed in the plaint,

19. The learned Judges of <ORG> allowed the appeal upon (to quote the language of <NAME>) "a point of estoppel, what may be termed a double estoppel." The learned Judge, in the first place, held that whatever might have been the real authority of <NAME>, as between himself and the <ORG>, in regard to parting with rice which was still subject to the <ORG>'s security, persons dealing with the mill assumed that <NAME> had the full power of an ordinary mill manager, which would include the power "to deliver rice and to deal with delivery orders." Accordingly, he held the <ORG> bound by the consequences of <NAME>'s representations and precluded from denying his apparent general authority.

20. It is unnecessary for their Lordships to say whether this ruling fits in with the actual facts of this case ; but they understand it to mean that as between the <ORG> and the plaintiffs, the <ORG> were bound by and estopped from denying the truth of representations made to the plaintiffs by <NAME>. The learned Judge having established the first limb of "the double estoppel," then dealt with its second limb. This part of the judgment is crucial, and as their Lordships read it, it depends entirely upon the meaning and effect of the letters O.K. which <NAME> placed upon the delivery orders. <NAME>, J., holds that they amount to a statement "that there will be no insistence upon any check on delivery," and he then proceeds thus :-

In this connection the only check.. . was the operation of the lien, the effect of which is waived by the letters O.K. In other words, I take the view that the second part of the estoppel consists of an estoppel of a principal by the waiver of his agent, in this case the estoppel of <ORG> by the waiver of <NAME>.

21. These words, which are the true foundation of the judgment, disclose, in their Lordships' opinion, a confusion of thought upon the subjects of estoppel and waiver.

22. The question of estoppel is governed by Section 115 of the Indian Evidence Act, which for the present purpose seems to their Lordships not to differ from the law in England in regard to estoppel in pais.

23. Estoppel is not a cause of action. It may (if established) assist a plaintiff in enforcing a cause of action by preventing a defendant from denying the existence of some fact essential to establish the cause of action, or (to put it in another way) by preventing a defendant from asserting the existence of some ¦ fact the existence of which would destroy the cause of action. It is a rule of evidence which comes into operation if (a) a statement of the existence of a fact has been made by the defendant or an authorised agent of his to the plaintiff or some one on his behalf, (b) with the intention that the plaintiff should act upon the faith of the statement, and (c) the plaintiff does act upon the faith of the statement. On the other hand, waiver is contractual, and may constitute a cause of action ; it is an agreement to release or not to assert a right. If an agent, with authority to make such an agreement on behalf of his principal, agrees to waive his principal's rights, then (subject to any other question such as consideration) the principal will be bound, but he will be bound by contract, not by estoppel. There is no such thing as estoppel by waiver.

24. <NAME> bases his judgment also on estoppel, but upon a different estoppel, which he established thus :-A firm called <ORG> had been in the habit of buying rice milled at the N. mill. <ORG> banked with the <ORG> and paid the traders through or at the <ORG>, with the result that the <ORG>'s security was always discharged and the rice was always delivered to the purchaser. At some time <NAME> is said to have told <ORG> agent that if he put O.K. on the delivery order "<ORG> were certain to get the rice free of lien." The learned Judge, accepting the view that the arrangement was that the plaintiffs "should do business with <NAME> on the same lines as <ORG> did business with <NAME>," held that because <NAME> did not tell the plaintiffs that the letters O.K. on their delivery orders bore a different meaning from the meaning which they bore on <ORG> delivery orders, the <ORG> were estopped from denying that they had the same meaning.

25. Their Lordships think it unnecessary to consider whether the actual circumstances of this ease could justify the grounding of an, estoppel upon this alleged omission on the part of <NAME>. It will, however, be seen that both judgments ultimately depend upon the rneaning of the letters O.K. on the delivery orders.

26. Without some assistance in the way of evidence their Lordships might' have found themselves in a difficulty, and all the more so since the origin of this commercial barbarism (which, according to the Oxford Dictionary, was already in use as far back as 1847) is variously assigned in different works of authority. The general view seems to be that the letters hail from the United States and represent a spelling, humorous or uneducated, of the words "All correct." Another view is that they represent the Choctaw word okeh, which signifies "So be it."

27. The evidence in this case as to the meaning of the letters O.K. is sometimes confused with the witness's contention as to what <NAME> intended them to denote. Thus <NAME> says, "The words O.K. were put to indicate that payment had been made and that he was bound to make the delivery mentioned in the delivery order." He added later, "I think the meaning of the letters O.K. is 'all correct,' because these letters are in general use. The initials O.K. are in general use by all sorts of people, and it is not limited to any trade." <NAME>, one of the plaintiffs' rice brokers, said, in regard to other transactions, "By the letters O.K. <NAME> meant that the number of bags specified on the delivery orders went over into the safe custody of the mill, and that we would have sole lien over the bags-so much so that not even a sample would be given out of those bags to anybody else" : which, if true, would indicate a triumph of conciseness. <NAME> explained the meaning of the letters O.K. thus : "The letters O.K. signify the existence of the seller's rice at the mill.... I meant to signify that the bills had been checked and found correct. I put the letters on the bills and delivery orders to show that it is more business-like and also for the satisfaction of the buyers and the sellers regarding the existence of the rice and the correctness of the calculations." Later he said, "I simply meant that the particular quantity of bags was in existence in the mill."

28. The question is not what <NAME> intended to represent by placing the letters on the delivery orders, but what the letters mean when placed there.

29. The only conclusion at which, in their Lordships' opinion, it is possible to arrive, is that the letters O.K. on the delivery orders and bills mean substantially what <NAME> said that they meant, viz., that the details contained in those documents were correctly given ; in other words, they constituted a statement by <NAME> that there was at the N. mill the specified number of bags of the specified rice with the specified mark, and of the specified weight, the property of <NAME>. This was a statement which <NAME> was entitled to make, and it therefore binds the <ORG> ; but it is in no wise a statement that the rice is unencumbered. It is certainly not a representation that in fact the rice is free of all encumbrances, and it therefore cannot ground an estoppel so as to prevent the <ORG> from asserting and proving their rights as encumbrancers. A statement to ground an estoppel must be clear and unambiguous (<NAME> v. <NAME>).

30. But even if their Lordships were to accept the meaning attributed to the letters O.K. by the plaintiffs and <ORG>, it would be impossible to hold that they constitute a representation which could ground an estoppel: for the meaning so attributed is not a representation of an existing fact, but a representation of a future intention, which might or might not be enforceable in contract. "The words must mean that the actual delivery of the goods would not be opposed, and that the <ORG> would waive their lien upon the goods so that the purchaser could obtain delivery" : that is <ORG>'s statement of the plaintiffs' contention : and in his judgment, <ORG> states that the letters O.K. imply "that there will be no insistence upon any check on delivery."

31. But the difficulties of the plaintiffs on this appeal do not end there. There is complete absence of any evidence that <NAME>, when he paid the money to <NAME>, relied upon the presence of the letters O.K. on the delivery orders or bills, and this is an essential element in establishing the plaintiffs' plea of estoppel. Indeed, it is difficult to see how <NAME> could have given any such evidence, for his contention throughout was that the <ORG>, through <NAME>, had guaranteed the due fulfilment by the traders of all their contracts with the plaintiffs ; and if that were so, there could be no reason for <NAME> to place any reliance upon the letters O.K., whatever their meaning, in parting with the purchase money.. According to him, the <ORG> were liable for any default by <NAME>.

32. It was conceded and properly conceded, by counsel for the Japanese company, that as the case had developed at the trial, they could only successfully resist this appeal if the <ORG> were estopped from asserting their rights under their security. For the reasons given, their Lordships are of opinion that the estoppel has not been established, with the result that the appeal must succeed.

33. Before indicating the order which their Lordships think should be made, they desire to call attention to a series of mistakes which have occurred in the course of this litigation as regards joinder of parties, due apparently to a misapprehension on the part of all concerned as to the legal position of a limited company incorporated under the Indian Companies Act , which has gone into liquidation. The plaintiffs sued to enforce causes of action against <NAME> and a limited company, viz., the <ORG>, and these two were rightly made the only two defendants to the suit. The plaint adds in the title of the suit after the name and description of the <ORG>, the words :-"by its General Manager, <NAME>." This addition may perhaps be necessary under the local procedural rules; but it does not make Mr. <NAME> a party to the suit. The second defendant is the <ORG> and the <ORG> alone.

34. Issues were settled on September 29, 1930. Subsequently the <ORG> went into voluntary liquidation, and Mr. <NAME> and Mr. <NAME> were appointed liquidators. Thereupon the plaint was amended by striking out the name of the <ORG> as second defendant, and inserting the name of Mr. <NAME> as second defendant and the name of Mr. <NAME> as third defendant, both being jointly described as "Liquidators of Dawson's <ORG>, Ltd. (in liquidation), <ORG>." The <ORG> thus ceased to be a defendant to the suit. The only defendants then were first defendant <NAME>, second defendant Mr. <NAME>, and third defendant Mr. <NAME>; and so constituted the suit was tried, the suit being dismissed against the second and third defendants with costs by a decree dated October 6, 1932. There "had been no fresh settlement of issues ; these had been framed, and were answered by the Judge, on the footing that the second defendant to the suit was the <ORG>. After the trial, as their Lordships were informed, the liquidation of the <ORG> was stayed or otherwise put an end to, so that the limited company was able to carry on its business as before the liquidation.

35. On January 4, 1933, a memorandum of appeal was presented by the plaintiffs and an application was made by them praying that the cause title might be amended. This was acceded to by an order of <ORG>, and the title of the proceedings on the hearing of the appeal disclosed the Japanese company as appellants against the <ORG> by their secretary, <NAME>, as sole respondents : in other words, an appeal by the plaintiffs from a decree in a suit to which the <ORG> were not parties, is brought by the plaintiffs against the <ORG> as sole respondents. The decree made by the High. Court on the hearing of the appeal is this entitled :-

<ORG> (<ORG>) Incorporated in Japan, 554, Merchant Street, Rangoon, represented by their Manager Mr. <NAME>, <NAME> ... Appellant (Plaintiff).

Versus <ORG>., a public company incorporated under the Indian Companies Act having its Head Office at Pyapon by its Secretary <NAME>... Respondents (2nd & 3rd defendants).

36. By its operative part it provides for a decree "against the respondents the second and third defendants" for a large sum ; it further orders "the respondents second and third defendants" to pay a sum for the appellants' costs of the appeal; and finally it orders "the respondents second and third defendants" to pay the plaintiffs' costs in the lower court.

37. Their Lordships feel grave doubts as to the exact effect of such a decree. The second and third defendants in the suit were Mr. <NAME> and Mr. <NAME> ; but they were not respondents to the appeal. The only respondents to the appeal were the <ORG>, who were not parties to the suit when the decree which is appealed from was pronounced. Mr. <NAME> and Mr. <NAME> cannot be the victims aimed at by the <ORG> decree ; yet if "the second defendant" referred to in the <ORG> decree means the <ORG>, it would seem that the appellate tribunal is exercising original jurisdiction over a company which was not a party to the suit when the decree appealed from was pronounced, and is even ordering that company to pay the costs of the original hearing. Further, if "the second defendant" means the <ORG>, then "the third defendant" can only mean Mr. <NAME>, who is no party either to the action or the appeal, and against whom no claim has ever been made.

38. Here, indeed, is a comedy of errors, all of which might have been avoided if the <ORG> had remained throughout the sole co-defendant with <NAME> The liquidation could make no difference in this regard : the claim of the plaintiffs was a claim against the <ORG>, and not against the liquidators. The change which was brought about by the liquidation in regard to the suit was merely this, that in the conduct of their defence the <ORG> would, before liquidation, act through the directors, during liquidation through the liquidators, and after the termination of the liquidation through the directors once more. If these considerations had been kept in mind, the present tangle could never have arisen.

39. Their Lordships have thought it right to call attention to these errors In order that in the future such mistakes may be avoided, In the present case these mistakes might well have made it difficult to proceed with the hearing of the appeal, but for the fact that, as their Lordships were informed, the decree of <ORG> had actually been enforced upon the footing that it was an effective decree made against the <ORG> as sole co-defendant to the suit with <NAME>; and that the <ORG> were willing to waive any irregularity and treat the decree as an effective decree, as indicated above.

40. Their Lordships will humbly advise His Majesty that this appeal should be allowed, the decree of <ORG> set aside, and the decree of the District Judge restored without variation. The respondents must pay the appellants' costs of the appeal to <ORG>, and of this appeal.


JUDGMENT <NAME> J.

1. These are six applications made to this Court under the provisions of Section 115 of the Civil Procedure Code and of Section 195 (6) read with Section 195 (7) (c) of the Code of Criminal Procedure.

2. In each case the applicant was the defendant and the opposite party the plaintiff in a suit brought in <ORG>, Calcutta. The suit having been dismissed, the defendants applied to the Trial Judge for sanction to prosecute the plaintiffs under Sections 209 and 193 of the Indian Penal Code. Sanction having been refused, in these applications, for the hearing of which I and <NAME>, J., have been constituted a Divisional Bench by his Lordship the Chief Justice, we are invited to revise and set aside the order of the Judge of <ORG> and to giant the sanction for which application was, and is, made.

3. At the hearing <NAME>, a Vakil enrolled and ordinarily practising in this Court, was authorised by the plaintiffs-opposite parties to appear and plead on their behalf and the question therefore, arose whether in these matters he as a Vakil was entitled to be heard On this question we have heard on the one side the learned Advocate-General on behalf of the <ORG>, and also learned Counsel appearing on behalf of <ORG> and of the Attorney on the record, and on the other side the learned Government Pleader Mr. <NAME>, appearing on behalf of the Vakil <ORG>. I have now to give my reasons for holding, as differing from my learned colleague I did, that in the matters now before us the Vakil claiming the right of audience was entitled to be heard. As, however, the question is to be determined only incidentally to and for the purposes of the hearing before us, I need not set out my reasons at any great length.

4. It is not disputed that as the order sought to be set aside is one made by <ORG>, we are sitting as a Divisional Bench in the exercise of the civil and not of the criminal jurisdiction of this Court. That question, though there arising in connection with an order under Section 476 and not as here an order under Section 195 of the Code of Criminal Procedure, has been decided by a Full Bench in the case of <CITATION> 19 Ind. Cas. 197 : 40 C. 477 : 17 C. L. J. 245 : 14 Cr. L. J. 197 : 17 C. W. N. 647. In this connection I may refer also to the case of <NAME>. <NAME> (2).

5. The question then in effect is whether we are sitting in a matter appertaining to the ordinary original civil jurisdiction, or, as the learned Advocate General apparently prefers to put it, to the original side of this <ORG>.

6. Now, <ORG>, Calcutta, is no doubt within, and the local limits of its jurisdiction are co-terminous with, the local limits of our ordinary original civil Jurisdiction.

7. The learned Advocate-General's contention then is that it is the original side' of this <ORG> that has inherited the jurisdiction formerly exercised by the Supreme <ORG> over the <ORG> of Small Causes (then known as the <ORG> of Requests), and in sup port of this contention he has relied mainly on Article 21 of the Charter establishing the Supreme <ORG> Sections 9 and 13 of the Indian High <ORG>s Act, 1861, Clause 12 of 4 Ind. Cas. 6 : 37 C. 13 : 13 C. W. N. 1038 : 10 Cr. L. J. 454 the Letters Patent 1865, the decisions of <ORG>, in <NAME> v. <NAME> 30 C. 986 in <CITATION> 6 Ind. Cas. 473 : 37 C. 714 : 14 C. W. N. 806 : 11 Cr. h. J. 357 and of <NAME>, J., on the hitherto prevailing practice of the <ORG>, and on the observations on questions of jurisdiction to be found in <CITATION> 21 Ind. Cas. 1: 40 C. 308. He has further made reference to Rule 9 (also Rule 4) of Chapter XXXIV of the Rules and Orders of the High <ORG> (Original Side) 1914 and to the case of <CITATION> 20 Ind. Cas. 977 : 41 C. 466 : 18 C. W. N. 1 : 14 Cr. L. J. 497.

8. On the other hand, Mr. <NAME> has relied mainly on Section 4 of, the Legal Practitioners Act , XVIII of 1979, and the proviso inserted in that lection by Act I of 1908, Section 6 and the 1st Schedule of the Presidency Small Cause Courts Act , XV of 1882, the definition of the term 'High Court' to be found in the Criminal Procedure Code , and in the General Clauses Act , X of 1897, on the cases reported as Toolsee Doss Seal, In re 7 W. R. 228; <CITATION> 30 C. 588 : 7 C. W. N. 547 and <CITATION> 12 Ind. Cas. 521 : 36 M. 138 : 10 M. L. T. 278 : (1911) 2 M. W. N. 259 : 21 M. L. J. 1074 : 12 Cr. h. J. 545 and on the observations of <NAME>, J. in his appellate judgment in the present applications. <CITATION> 39 Ind. Cas 465. Ed.

9. Having carefully considered all the arguments advanced on either side, I am satisfied that the learned Advocate General's contention cannot be supported. It appears to be based on the erroneous assumption that the Judges appointed by the. Chief Justice from time to time to exercise the ordinary original civil jurisdiction constitute in some mysterious way a separate and independent <ORG>. It also appears to confound or fails to distinguish between 'jurisdiction' and the area over or the local limits within which that jurisdiction is exercised.

10. The Rule of Court to which we have been referred (Original Side, Chapter XXXIV, Rule 4) framed in 1903, no doubt, indicates the Judge to whom, in accordance with the order bf the Chief Justice, applications such as the present must be made, but no such Rule or order judicially determines or can determine what jurisdiction the Judge entertaining the application will then proceed to exercise.

11. <CITATION> (5) the learned Judges followed an authoritative decision of a Divisional Bench, while the decisions of <NAME>, J., in <NAME> v. <NAME> (3) and <NAME>, J. in <CITATION> (4) though entitled to great respect, are the decisions of single Judges and appear to be based merely on practice. But practice and, I may perhaps add, prejudice must give way to law and to the rights conferred by law.

12. In the present matters, original jurisdiction has been exercised and exhausted by <ORG>. That <ORG> is no part or branch of this <ORG> but is an inferior or subordinate <ORG> and in dealing with it's judgments or orders this <ORG>, in my view, is a superior <ORG> exercising not original but appellate or revisional jurisdiction. From this and the provisions of Section 4 of the Legal Practitioners Act, it follows that in these matters the <NAME> who has claimed the right of audience is entitled to be beard.

Chaudhtri, J.

13. I am sorry I am unable to agree with my learned colleague on the preliminary point argued in connection with these applications, namely, as to the right of audience claimed by the learned <NAME> for the opposite party, whose contention is that the <NAME>s of this <ORG> have such right under Rule 4, Chapter II, Original Side, read with Section 4 of the Legal Practitioners Act, namely, to appear and plead in all cases except before a Judge of the High <ORG>, <ORG> or High <ORG> exercising original jurisdiction in a Presidency town." He contends that our Rule only restricts their right when the original side exercises its original jurisdiction. He further contends that if Rule 9, Chapter XXXIV, Original Side, corresponding to appellate side, Rule 5, Chapter II, which provides for the hearing of applications under Section 115 , Civil Procedure Code, by a single Judge on the original side, stands in the way of <NAME>s' appearing in such applications, it is ultra vires. The learned Government Pleader has been heard on behalf of the <NAME>s and the Advocate-General on behalf of the <ORG> and the Incorporated Law Society for the Attorneys of the <ORG>, who contest the right so claimed.

14. The question has arisen in these circumstances. Six applications were made to me, when I was sitting on the original side, on behalf of the defendants in the above-mentioned <ORG> suits, against an order passed by a learned Judge of <ORG> refusing sanction to prosecute the plaintiffs. The applications were headed: In the matter of Section 115 , Civil Procedure Code." I issued a Rule on the plaintiffs to show cause why that order should not be set aside. They appeared by Counsel and I held that the learned Judge had wrongly declined jurisdiction, having erred in holding that an application for leave to sue in <ORG> was not a stage in a judicial proceeding. I also held he had erred in refusing the applications on the ground of delay. I held that the delay had been satisfactorily accounted for. As he had not dealt with the merits of the applications, but had thrown them out on preliminary points, I remanded them, directing an enquiry on the materials which had been placed before him. In the course of argument it was suggested that the applications before me did not come under Section 115 , Civil Procedure Code. I held it was unnecessary to consider the question, as it was practically conceded by learned Counsel for the plaintiffs (opposite party) that the <ORG> over which I then presided, as the superior <ORG> of <ORG>, had power to deal with the applications under Section 195 , Criminal Procedure Code . I said that, if necessary, the heading of the applications would be amended.

15. The plaintiffs appealed against my judgment, under Section 15 of the Letters Patent, to the Bench hearing appeals from the original side. That Bench consisted of the Chief Justice and <NAME>, J. They held that I was right on both the points decided by me, but were of opinion that my order of remand was wrong, and the learned Chief Justice "remitted" the applications to <NAME>, J., and myself as a Special Bench for disposal on their merits. The order does not specify the jurisdictions in which we are sitting as a Special Bench. Clearly <ORG>, as such, had no jurisdiction to remand the applications to any other Bench of this <ORG>, than to the <ORG> on the original side. It is also to be noticed that the original side is in no sense a <ORG> subordinate to <ORG> of the same <ORG> which hears appeals thereform, and an application by way of appeal to it under Section 195 , Criminal Procedure Code , does not appear to me to be competent: <NAME> v. <NAME> <NAME> 11 Ind. Cas. 1005 : 4 Bur. L. T. 206 : 12 Cr L J. 469 : 6 L. B. R. 25 The Appellate Bench, however, dealt with the matter under Section 15 of the Letters Patent. Whatever, my views may be about the power of the superior <ORG> to remand when the Subordinate <ORG> declines jurisdiction on a preliminary point and does not deal with the merits of a matter, especially in cases like these, when the superior <ORG> by dealing with them may deprive the opposite party of the right of appeal, we are bound to deal with these applications as having been rightly remitted to m as a Bench specially constituted by the learned Chief Justice, although it strikes me that if I had no power to remand to the Small Cause <ORG> under Section 195 , Criminal Procedure Code , the Appellate <ORG> similarly had no such power. This Bench has been constituted by him not as a member of the <ORG> of Appeal, but by virtue of his statutory power as Chief Justice under Section 14 of the High <ORG>s Act (24 & 25 Vict. C. 104). As I have pointed out he has not mentioned the jurisdiction. He has "remitted" the applications to us, which to my mind implies that he has sent them back to the <ORG> where they were originally made, namely, to the original side. It has been argued that as <NAME>, J., has held that Section 195 , Criminal Procedure Code , creates a "special jurisdiction," there applications must be taken as made to us not in the exercise of the original jurisdiction of this <ORG>, This seems to me to be based upon a confusion as to the meaning to be attached to the word "jurisdiction". The learned Judge says: "The true view is that Section 195 creates a special jurisdiction, as explained in <CITATION> 14 Ind. Cas. 305 : 22 M. L. J. 419 : J.1 M. L. T. 367 : (1912) 1 M.W.N. 499 : 13 Cr. L. J. 209 : 39 M. 750" Reference to that case shows that the learned Judges do not use the expression "jurisdiction" and, if I may say so with respect, correctly use the words special power." They held that the power conferred by Section 195 (6) Criminal Procedure Code , was not a part of the Appellate and Revisional Jurisdiction of the <ORG> under Chapters XXXI and XXXII, Criminal Procedure Code , but that it was a special power.

16. One of the questions before us appears to be whether Section 195 , Criminal Procedure Code , cuts down the power which <ORG> has under Section 115 , Civil Procedure Code, or its power of superintendence under Clause 15 of <ORG>s Act . I understood my learned colleague to agree with me that our revisional powers have not been so out down. Argument at the <ORG> proceeded upon the same basis: Section 195 (6) and (7) seem to me to deal with a special case of revision. The power is in <ORG> it has not been newly created. It is covered by Clause 15, and Section 115 , Civil Procedure Code and Section 195 (6), Criminal Procedure Code , are specific instances where we can exercise our revisional powers. It does not seem to me that a new power has been conferred upon us by Section 195 (6), nor has it created a special jurisdiction. The dependent question is are we sitting on the Original Side? Are we hearing these applications as the principal <ORG> of original jurisdiction situate in Calcutta? That we undoubtedly are. At the conclusion of the argument my learned colleague was of opinion that the <NAME> had the right to appear in such applications, and claimed that under Clause 36 of the Letters Patent (1865) his opinion as that of the Senior Judge of this Bench should prevail. Although I was not quite prepared to accede to it, I had no desire to discuss the matter, as it seemed doubtful to me at the time, if the difference between us could be referred to a third Judge or a Full Bench of this <ORG>. I thought that time and trouble would be saved by my hearing the learned <NAME> for the opposite party on the merits of the applications and I accordingly heard him, specially as it is always a pleasure to hear him, and also because it was clear to me that an instance of this nature could not be looked upon as establishing a precedent against other decisions of this <ORG>. It strikes me that a question relating to the rival claims of different sections of legal practitioners of this <ORG> involving rules framed by <ORG> cannot be determined in this way. Such questions are not settled by the opinion of a single Judge or of <ORG> of this <ORG>. I venture to think that discussions which tend to disturb the well-established practice of this <ORG>, or create a feeling of uncertainty about it should not be encouraged. Such discussions sometimes cause irritation between different branches of the profession, which is always unfortunate. Applications under Section 195 , Criminal Procedure Code , are so rare that the right, if conceded, is not likely to be of much practical value. I did not, therefore, think it right to dissent from my learned oolleague and bring matters to a deadlock for the time being. We then heard the learned <NAME>. I think it unnecessary in the circumstances to give reasons for my views in detail. Having, however, been associated with the original side of this <ORG> for over thirty years as Advocate and Judge and claiming knowledge of the practice of the <ORG>, I think it may be useful to record my view that the statement made by <NAME>, J., in <CITATION> (4) about the practice of this <ORG> in respect of applications under Section 622 , now Section 115 , Civil Procedure Code, in matters arising out of proceedings in the Presidency Small Cause <ORG>, is entirely correct. He says: There has been a well-established practice for at least 50 years that these applications under Section 622 should be made on the original side of this <ORG>, and it was considered settled that these applications should be made on the original side by Counsel." <NAME>, J., said the same thing in <NAME> v. <NAME> (3): "it is a remarkable fact that the jurisdiction of a Judge sitting on the original side to exercise revisional powers over the Presidency Small Cause <ORG>, which is now challenged for the first time, has been exercised ever since the establishment of <ORG>, over 40 years ago, as its records abundantly show. Within this period innumerable applications have been heard and determined by single Judges sitting on the original side of this <ORG>." I am aware that in <NAME> v. <NAME>, C. J. said: Applications have invariably been made to the Chief Justice, who can appoint, and who does then and there appoint, himself and the Judge who may be sitting with him to be the Bench to hear the application." The learned Chief Justice appears to have been misled into making such a statement. It should be remembered that both <NAME> and <NAME>, JJ, were for many years practising members of the Calcutta <ORG> before they became Judges of the <ORG>. The uniform practice of this <ORG> was sought to be varied for the first time in 1901. <NAME>, J., correctly says: "For some short time prior to 1902, similar applications were successfully made on the Appellate Side by <NAME>." This, however, was put an end to by a decision of <NAME> and <NAME>, JJ., in <CITATION> 29 C. 498. who held that the Bench taking the Presidency group had no jurisdiction in Calcutta, and, therefore, no jurisdiction over the Calcutta Small Cause <ORG>. This question turned on the order of the Chief Justice allocating business to the various <ORG>, and while this order gave the Presidency group jurisdiction over cases from the 24-Pergannahs---the 24-Pergannahs is not Calcutta. However, another application was made by a <NAME> in the case of <NAME> v. <NAME> (8) to the Chief Justice Sir <NAME> and Mr. Justice <NAME>. A preliminary objection was taken based on the last case, but it was overruled on the ground that the learned Judges were not dealing with the matter as the Judges taking the Presidency group, but as a Bench constituted by the Chief Justice to deal with the case, and there could be no question but that the Chief Justice had the power to constitute such a Bench and deal with the application. This correctly states the facts. As against the prevailing practice, the following cases only of applications made to Appellate Divisional <ORG> of this <ORG> by <NAME> have been referred to by the learned Government Pleader (I) <NAME>, In re (7), (II) <NAME> v. <NAME> (13) (III); <CITATION> (14) ( <CITATION> (12) and (V); <NAME> v. <NAME> (8). It will be noticed that between 1867 and 1901 not a single case can be found in our Law Reports to show that such applications were made by <NAME> on the Appellate side of this <ORG>. In the case of <NAME> v. <NAME> 3 C.L.J. 199. the learned Judges referred to the case of <NAME> v Kanooram 10 B.L.R. 355 : 19 W.R. 203. which was an application on the original side of the <ORG>. The Judges in the case of <CITATION> (14) were <NAME> and <NAME>, JJ. The same Judges held in <CITATION> (12) that the Bench taking the cases of the Presidency group had no jurisdiction over the <ORG> of Small Causes at Calcutta. The statement of the Chief Justice in <NAME> v. <NAME> (8) as to the practice is not correct, as" I have already pointed out. The case of <NAME>; In re (7) related to an application made by a <NAME> of this <ORG>, that he had a right to be heard in the Presidency Small Cause <ORG>, where he had been refused audience. This <ORG> did not issue a Rule on the Presidency Small Cause <ORG>, as the learned <NAME>'s client had succeeded in the suit in that <ORG>, That case therefore, gives us no help, and the other cases, between 1901 and 1903 above referred to only show the attempt which was made during that period to unsettle the established practice of this <ORG>. The matter was eventually set at rest in 1903 by Rule 9, Chapter XXXIV, Original Side, which confirmed the prevailing practice, The Index Book of the original side of this <ORG> relating to such applications shows that hundreds of these applications have been made on that Side since 1883. In the earlier Index Book all miscellaneous matters have been mixed up and it is difficult to separate the applications in re vision. I may state that such applications are almost daily made on the original side on motion days.

17. It is well established in this <ORG>, after the <ORG> ruling in <CITATION> (1) that Section 439 of the Criminal Procedure Code has no application to an order passed under Section 476 , Criminal Procedure Code , but <ORG> can exercise the powers vested in it by Section 115 of the Civil Procedure Code or Section 15 of <ORG>s Act, and that <ORG> as such has no jurisdiction to deal with the matter in revision. The ruling in <NAME> v. <NAME> 28 A. 554 : 3 A. L. J. 394 : A. W. N. (1906) 103 : 3 Cr. L. J. 400 : 1 M. L. T. 219. is that <ORG> has no jurisdiction, in the exercise of its revisional powers on the criminal side, to interfere with orders relating to sanction under Section 195 , Criminal Procedure Code . The same view had been accepted by this <ORG>. Although we two now constitute <ORG> of this <ORG>, these applications have not come up before us in our criminal jurisdiction. The Civil Appellate Division Benches of this <ORG>, which deal with particular provincial <ORG>s, or groups of such <ORG>s, have no jurisdiction as such over <ORG>. The local jurisdiction of <ORG> coincides with that of the original side of this <ORG> ( Section 17 , Act XV of 1882). The law administered by that <ORG> has to be dealt with it and determined according to the law for the time being administered by the Original Side of our <ORG> ( Section 16 , Act XV. of 1882). The Presidency Small Cause <ORG> is subordinate to <ORG>. The original side is a <ORG> within the meaning of the Civil Procedure Code and is a portion of <ORG>. Without any more it would be natural and logical to hold that <ORG> is subordinate to the original side of <ORG>.

18. The question historically looked at leads to the same conclusion. The present <ORG> has taken the place of <ORG>, which was placed under the order and control of <ORG> by the Charter of Justice arid Proclamations in the same manner as the inferior <ORG> in England were then subject to the order and control of <ORG>---see Section 21 of the Charter of <ORG> (14 Geo. III, 1774). In the Proclamation of the Governor-General-in-Council, dated 18th March 1802, declaring the jurisdiction powers and practice of <ORG> for the recovery of small debts, it was provided that the said <ORG> and its proceedings were subject to the control of His Majesty's <ORG> in as full and ample a manner, to all intents and purposes, as the former <ORG> (see the Proclamation in Sm. and Ryan's Rules and Orders, Vol. II, App. XVI, Act IX of 1850) constituted the <ORG> the Judges of <ORG> virtate officii, as such Judges exercised control over that <ORG>. The <ORG> possessed no appellate jurisdiction, but had local jurisdiction, the same as the original side of this <ORG> now has. By the High <ORG> Act (24 and 25 Vict. C. 104), Her Majesty was empowered to erect a High <ORG> at Fort William in Bengal. It was provided that upon the establishment of such High <ORG>, <ORG> and <ORG> and Sudder Nizamut <ORG> should be abolished. Section 9 enacted as follows:---"Each of the High <ORG> to be established under this Act shall have and exercise all such Civil, Criminal, Admiralty and Vice-Admiralty, Testamentary, Intestate and Matrimonial jurisdiction, original and appellate, and all such powers and authority for and in relation to the administration of justice in the Presidency for which it is established as Her Majesty may by such Letters Patent as aforesaid grant and direct subject, however, to such directions and limitations as to the exercise of original civil and criminal jurisdiction beyond the limits of the Presidency Towns as may be prescribed thereby, and save as by such Letters Patent may be otherwise directed, and subject and without prejudice to the legislative powers in relation to the matters aforesaid of the Governor-General of India in Council, the High <ORG> to be established in each Presidency shall have and exercise all jurisdiction and every power and authority whatsoever in any manner vested in any of the <ORG> in the same Presidency abolished under this Act at the time of the abolition of such last-mentioned <ORG>." In 1862 the Letters Patent were granted. By these the High <ORG> was vested with civil and criminal jurisdiction, both original and appellate, By the Letters Patent of the 28th December 1865, the earlier Letters Patent of 18o2 were revoked. Thus then the High <ORG> inherited all jurisdiction and every power in any manner vested in <ORG> and the Sudder Dewany and Sudder Nizamut <ORG>. This High <ORG> was thus the successor of <ORG> with territorial jurisdiction confined to the Presidency Town of Calcutta and as <ORG> was not a <ORG> which had power of superintenence over the Mofussil <ORG>, the original side did not and does not possess such power, and similarly as the appellate side dealing with appeals from Provincial <ORG> has no jurisdiction over the <ORG>, the power of superintendence over it, which <ORG> had, remained in the original side of the High <ORG>. There are some large powers which still remain in the original side of the High <ORG> as the successor of the, <ORG> which do not belong to the appellate side of the <ORG>, although it is correct to say that they belong to the High <ORG>, taking the two sides collectively. Take the jurisdiction of the High <ORG> in matters of contempt. The question was elaborately discussed in the matter of Governor of Bengal v. <NAME> 20 Ind. Cas. 81 : 17 C. W. N. 1253 : 18 C. L. J. 452 : 41 C. 173 : 14 Cr. L. J. 321. where it was held by Sir <NAME>, C. J., that in case of interference with the due administration of justice by <ORG> of this <ORG> in relation to a criminal appeal pending before it, if such interference amounted to an offence under the Common Law, this <ORG> has power to deal with it on its Crown Side, that is to say, in its original criminal jurisdiction, that power having been inherited by it from <ORG>.

19. It is unnecessary to multiply instances as to the special powers inherited by <ORG> from <ORG>, which are exercised on its original side. Historically, therefore, the power of superintendence, direction and control which was possessed by <ORG> over <ORG> appertains to the original side of this <ORG>. It seems clear to me that all such powers, when exercised by the original side, are exercised in its original jurisdiction within the meaning of Section 4 of the Legal Practitioners Act. It is not, as was suggested during argument, an exercise of its extraordinary original jurisdiction which is defined by Clause 13 of the Letters Patent (1865). The original side has, of course, no appellate jurisdiction and the appellate jurisdiction of <ORG> is not available in respect of proceedings in connection with <ORG>. Broadly speaking, the re visional power which is invoked in respect of such proceedings appertains, as I have tried to show, to the original side, logically, historically and as a matter of practice. It has not been doubted that <ORG> in its original side has power to issue a writ of certiorari, which is a writ to an inferior <ORG> to call up the records of a cause therein depending, that conscionable justice may be therein administered. In 1884 an application was made to <NAME>, J., who was then sitting on the original side of this <ORG>, for such a writ to bring up certain proceedings relating to an assessment before the Commissioner of <ORG>. He granted the Rule, but eventually discharged it on its merits. The appeal from it was entertained as an appeal from original civil jurisdiction see <CITATION> 11 C. 275 : 5 Ind. Dec. (N. S.) 943. <NAME>, C. J. held: "The authority of this <ORG> to remove the proceedings of inferior <ORG>s, in the exercise of their judicial functions, is undoubted. It is an authority derived from the old Supreme <ORG>, and is similar to that which was exercised by the <ORG> of Queen's Bench in England, and, if the Commissioners in this case were exceeding their jurisdiction in making the assessment, it seems clear that we have the power to quash it upon certiorari, notwithstanding the provision in Section 17 in the Calcutta Municipal Consolidation Act, 1876," but as it appeared that the Commissioner had acted within their powers the appeal was dismissed. <NAME>, J., took the same view. The right of a single Judge sitting on the original side of this <ORG> to issue such a writ was not questioned in that case, although eminent Counsel appeared and contested that matter. Such a power is in its nature revisional. It is conceded that applications, under Section 115 , Civil Procedure Code, in respect of <ORG> appertain to the original side, under our rules. It seems to me necessarily to follow that the ordinary incidents of the procedure of that <ORG> attach to such applications. Clause (21) of <ORG> Charter has no doubt been repealed by Section 2 of the present <ORG> Small Cause <ORG>s Act (XV of 1882) and the power of superintendence is now given by Section 6 of that Act. To my mind it makes no difference, as the Appellate Divisional Benches of this <ORG> as such have no power of superintendence over <ORG> in the same way as the original <ORG> has no jurisdiction. over the Provincial Small Cause <ORG>s. Act XI of 1865 consolidated and amended the law relating to the <ORG>s of Small Causes established beyond the local limits of the ordinary original civil jurisdiction of <ORG> of Judicature. Section 4 of that Act provides that these <ORG>s are subject to the general control and order of, <ORG>, which is defined in Section 1 as the highest Civil <ORG> of Appeal, which is practically the same definition as we find in the General Clauses Act s of 1868 and 1897. Act IX of 1837 has taken the place of Act I of 1865, which also excludes the ordinary original Civil jurisdiction of this <ORG>. Section 25 gives revisional jurisdiction to <ORG>, which is exercised by our <ORG> and Section 28 gives administrative control and superintendence to <ORG>, in the same way as Section 6 of the <ORG> Small <ORG> Act gives it to <ORG>. The <ORG> and the Provincial Small Cause <ORG>s have been deliberately kept separate. The law, the practice and procedure in each of them are different. References from the former are heard by that Bench of our <ORG> which deals with appeals from the original side, and those from the latter by the <ORG>. To hold that the Revisional Jurisdiction of this <ORG> over <ORG> cannot be exercised except by a Special Bench constituted for the purpose in my opinion unnecessarily multiplies the machinery by which the powers of this <ORG> are exercised. Section 13 of <ORG>s Act gives power to <ORG> to make its own rules for the exercise by one or more Judges or by Division <ORG>s constituted by two or more Judges of the <ORG>, of the original and appellate jurisdictions vested in the <ORG>, in such manner as may appear to the <ORG> to be convenient for the due administration of justice. Section 14 gives the Chief Justice the authority to determine what Judges shall sit alone or in Division <ORG>s. Why in rare applications relating to sanctions of the character now before us, the ordinary Benches' of bur <ORG> should not be held sufficient, I candidly confess, I fail to understand. It seems to me unnecessary to disturb the established practice of this <ORG> for such applications. Even as late as 1913, such an application as is now before us, was made to <NAME>, J., exercising original jurisdiction. See In the matter of Section 115 , Civil Procedure Code and 15 of the Charter and in the matter of sanction to prosecute <NAME>, unreported, decided on 15th December 1913. Although I have stated some of the grounds for my decision, in the view that our respective judgments in a matter of this nature are not likely to have any binding effect I refrain from elaborating them. I think, however, I ought to point out that the practice as to applications by way of appeal under Section 195 , so far as Madras was concerned was changed in 1902 after the decision of that eminent Judge Sir <NAME>, in In re Chennanagoud 26 M. 139 : 2 Weir 197. In Madras they have since been dealt with under Section 622 now Section 115 , Civil Procedure Code, and the present practice there has been looked upon as its settled practice for the last 14 years. Since 1902 also the Allahabad <ORG> changed its views---see the judgment of <NAME>, J., in Emperor v. Muhammad Khan A. W. N. (1902) 202. and In the matter of the Petition of Dhup Kunwar 26 A. 249 : A. W. N. (1904) 15 : 1 Cr. L. J. 73. The observation of <NAME>, J., in the case last cited is worthy of note, namely that the <ORG> should be loath to depart from the established practice unless convinced that it has not the sanction of law and is grossly erroneous. The practice of the <ORG> forms the law of the <ORG>. The original side has, as I have shown, always exercised revisional powers over the <ORG> Small <ORG> under Section 115 , Civil Procedure Code, and 15 of the Letters Patent Why it should not exercise similar power in respect of proceedings under Section 195 of the Criminal Procedure Code I do not understand. In Ex parte <NAME> (1888) 20 Q. B. D. 1 : 57 L. J. Q. B. 98 : 58 L. T. 323 : 36 W. R. 209 : 52 J. P. 484. Lord <NAME> said that when a Judge had thought it necessary for the' purpose of a ease to make a deliberate examination of the practice of his work and to state such practice such statement was entitled to great weight. In connection with the question of practice now before us we have at least two learned.... Judges of this <ORG> who made such an examination. In Attorney' General v. <NAME> of Ailesbury (1887) 12 A. C. 672 : 57 L. J. Q. B. 83 : 58 L. T. 192 : 36 W. R. 737. Lord <NAME>, L. C, said a Judge was Mot at liberty to assume against a well-established practice of the <ORG> followed by eminent1 Judges that the <ORG> or they were in error as to their powers and jurisdiction. In <ORG> v. <NAME> (1891) 1 Ch. 367 : 60 L. J. Ch. 153 : 63 L. T. 677 : 19 W. R. 269. <NAME>, J., said that it was much better to adhere to what had been the practice than that a single Judge should attempt to set up what he considers as better practice. In this case there is no question of any fundamental principles of justice being in danger and it seems to me that no case has been made out for making a departure, for introducing a novelty for the sake of novelty. I hold that we are now sitting on the original side of the <ORG>, exercising such jurisdiction as is ordinarily exercised on that side.

20. The division of work in <ORG> is entirely different from that of our <ORG>. The appellate work of <ORG> is assigned to Benches constituted for the disposal of particular classes of work and not according to groups of districts. Applications under Section 195 , Criminal Procedure Code , are treated there as Civil Miscellaneous Appeals or as Appeals from Orders, and recently, so far as I have been able to ascertain, <ORG> has assigned all cases under Section 195 , Criminal Procedure Code , whether on the criminal or civil Side, to the Judges doing the criminal work of the <ORG>, who also deal with a Civil Miscellaneous List. In Madras, Vakils have the right to appear on the original side and, therefore, the practice of that <ORG> or its rulings with reference thereto do not give us any help and I need not, therefore, discuss them.

21. On the merits of the case their Lordships delivered the final judgment as follows:

Teunon, J.

22. In these six matters it appears that two plaintiffs <NAME> and <NAME> brought respectively 7 suits and 22 suits against different defendants in <ORG>. The defendants being resident beyond the jurisdiction, in each case the plaintiff applied for leave to sue, and in support of his application swore that the money for the recovery of which the suit was brought had been lent in Calcutta.

23. On the 23rd of March 1914, all the 29 suits were dismissed, in each case on the special oath of the defendant.

24. Thereafter on the 21st December 1914, in each case application was made on behalf of the defendant for a sanction to prosecute the plaintiff under Section 209 of the Indian Penal Code in respect of the claim and under Section 193 in respect of the statement made in the application for leave to sue. Of the 29 applications, only the 6 now before us were proceeded with and these were eventually dismissed by the Judge of <ORG> on the 14th of June 1915. The dismissal was on two grounds, namely that an application for leave to sue is not a stage of a judicial proceeding and that there had been undue delay in making the application for sanction.

25. Against the orders refusing sanction, applications were then made to this Court under Section 115 of the Civil Procedure Code and Section 195 (6) read with Section 195 (7) (c) of the Code of Criminal Procedure. These applications were made to <NAME>, J., then sitting in the exercise of the original jurisdiction of this Court and at the hearing of the Rules then issued that learned Judge directed that the Judge of <ORG> should make further inquiry and thereafter dispose of the applications.

26. Against his orders appeals were preferred and <ORG> has held that under the provisions of Section 195 (6) the superior Court though competent to act upon evidence taken before itself or taken by <ORG> under its direction is not competent to make a remand to <ORG> for further inquiry and decision.

27. The orders of <NAME>, J., were accordingly set aside and the applications remitted for re-hearing and his Lordship the Chief Justice has constituted us a Divisional Bench for the purposes of this re-hearing.

28. When the application came on for hearing a question arose whether <NAME> through whom the plaintiffs opposite parties desired to be heard was entitled as a Vakil to appear and plead on behalf of his clients. In accordance with the opinion of the Senior Judge on this question we have heard <NAME> and now proceed to determine the question whether with or without further inquiry sanction should be given to the several applicants for the prosecution of the plaintiffs opposite parties.

29. It is not now contended that an application for leave to sue is not a stage in a judicial proceeding and in view of the opinions expressed by <NAME>, J., and by <ORG> the learned <NAME> appearing for the opposite parties has wisely refrained from contending further that the delay has not been sufficiently explained.

30. The further materials before us in each case are an affidavit by the applicant defendant and an affidavit by the plaintiff. No doubt the verification by the defendant's application is faulty but he does therein swear that the suit brought against him is wholly false and that he had never been in Calcutta prior to its institution. Having considered this affidavit, having regard also to the decision in all six suits, and to the fact that even now though the plaintiff says he has independent evidence, there is no affidavit in support of his own, we think that it is unnecessary to take further evidence at this stage and that a case for the grant of sanction has been made out. In each case we, therefore, set aside the order of <ORG> and grant to the. petitioner sanction to prosecute the plaintiff opposite party under Section 209 of the Indian Penal Code in respect of his claim, and under Section 193 , Indian Penal Code , in respect of the statement made and in support of the plaintiff's application for leave to sue, namely the statement that the principal money claimed was lent in Calcutta.

Chahdhuri, J.

31. I agree that sanction should be granted to prosecute the plaintiffs as applied for; I have nothing to add to the judgment delivered by my learned colleague.


PETITIONER: <ORG> Vs. RESPONDENT: SHRI SHRI KISHAN BHAGERIA & OTHERS DATE OF JUDGMENT11/11/1987 BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) OZA, G.L. (J) CITATION: 1988 AIR 329 1988 SCR (1) 985 1988 SCC Supl. 82 JT 1987 (4) 569 1987 SCALE (2)1301 ACT: Industrial Disputes Act , 1947: Section 2(s) -'Workman'- who is-Internal Auditor in Company-Not doing supervisory work-only checking up on behalf of employer-No independent authority or right to take decision-Such employee held 'workman'-I. D. Act not repugnant to Rajasthan Shops and Commercial Establishments Act 1958. Rajasthan Shops and Commercial Establishments Act, 1958: Sections 28A and 37-Whether repugnant to Industrial Disputes Act 1947-Employee's petition against dismissal- Dismissed on ground of limitation-Relief through petition under I. D. Act 1947-Whether barred. HEADNOTE: % The Ist respondent was working in the appellant-company as an Internal Auditor on a monthly salary of Rs.1186-60P per month. The appellant alleged that the respondent started absenting himself from 28th January, 1978 and as such was not entitled to any salary for any period beyond the said date. The respondent was thereafter placed under suspension on 30th March, 1978. On 4th May, 1978 the respondent filed an application under section 33C(2) of the Industrial Disputes Act, 1947 claiming a total sum of Rs.4746-40p on account of salary from Ist January, 1978 to 30th April, 1978. The appellant objected on the ground that the respondent was not a 'workman'. On 9th November, 1978 there was an order dismissing the respondent from service. On 2nd January, 1979 the respondent filed an application under section 28A of the Rajasthan Shops and Commercial Establishments Act, 1958 which was dismissed on 31st July, 1979 on the ground of limitation. On the 2nd August, 1979 <ORG> held that the respondent was doing clerical duties and as such was a 'workman' under the Industrial Disputes Act and he was entitled to Rs.2060-98p as salary 986 from 9th March, 1978 to 30th April, 1978. There was also a reference under section 10 of the Industrial Disputes Act, 1947 on 8th August, 1960 arising out of the dismissal of the respondent. The appellant filed a writ petition challenging this order. All the aforesaid writ petitions were disposed of by a Single Judge of <ORG> on 16th March, 1982 holding that the respondent was not a 'workman'. <ORG> of <ORG>, however reversed the aforesaid judgment and held that the respondent was a 'workman'. The two writ petitions of the appellant were dismissed, while the writ petition of the respondent was allowed. Aggrieved by the aforesaid orders the appellant appealed to this Court. On the questions: (1) whether the respondent was a 'workman' or not within the definition of section 2(s) of the Industrial Disputes Act, 1947 and (2) whether the Industrial Disputes Act , 1947 or the Rajasthan Shops and Commercial Establishments Act, 1958 would apply. Dismissing the appeals, ^ HELD: 1.(a) Whether a person was performing supervisory or managerial work is a question of fact. One must, therefore, look into the main work and that must be found out from the main duties. A supervisor has to take some kind of decision on behalf of the company. One who was reporting merely as to the affairs of the company and making assessment for the purpose of reporting is not supervisor. [992A-B] (b) There is no controversy in the instant case, that the respondent is not employed in any managerial or administrative capacity. Distribution of work may easily be the work of a manager or an administrator but "checking" the work so distributed or "keeping an eye" over it is certainly supervision. A manager or administrator's work may easily include supervision but that does not mean that supervision is the only function of a manager or an administrator. Where there is a power of assigning duties and distribution of work there is supervision. [990C,991A-B,991D] <CITATION> , A.I.R. 1958 Calcutta 273; <CITATION> ,  1 S.C.R. 25; Llyods Bank 987 <CITATION> ,  1 L.L.J. 18; Burmah Shell Oil Storage & Distribution Co. Of India. v. <ORG>.  2 S.C.R. 758; <CITATION> (dead) through Lrs,  4 S.C.C. 696; <CITATION> :

Delton Cable India (P) Ltd., [1984] 2 S.C.C. 569 and <CITATION> ,  1 L.L.J. 462 referred to.

(c) A checker on behalf of the management or employer is not a supervisor. [993E] In the instant case, the nature of duties performed by Respondent No. 1 were mainly reporting and checking up on behalf of the management. A reporter or a checking clerk is not a supervisor. The respondent does not appear to be doing any kind of supervisory work. He was undoubtedly checking up on behalf of the employer but he had no independent right or authority to take decision and his decision did not bind the company. <ORG> came to the conclusion that the respondent was a 'workman' within the meaning of section 2(s) of the Industrial Disputes Act, 1947 taking into consideration the evidence recorded before <ORG> that the respondent is a workman and not a supervisor. That conclusion on the appreciation of evidence cannot be interfered with under Article 136 of the Constitution. [993A-C]

2.(a) In order to raise the question of repugnancy two conditions must be fulfilled. The State law and the Union law must operate in the same field and one must be repugnant or inconsistent with the other. These are two cumulative conditions which are required to be fulfilled. [995E] <CITATION> ,  Suppl. 2 S.C.R. 8 and <CITATION> ,  4 S.C.C. 45 at page 87 referred to.

(b) In this case there is a good deal of justification to hold that these laws, the Industrial Disputes Act , 1947 and the Rajasthan Shops and Commercial Establishments Act, 1985 tread on the same field and both laws deal with the rights of a dismissed workman or employee. But these two laws are not inconsistent or repugnant to each other. The basic test of repugnancy is that if one prevails the other cannot prevail. That is not the position in this case. [995F-G]

(c) The application under section 28A of the Rajasthan Act was dismissed not on merits but on limitation. There is a period of limitation provided under the Rajasthan Act and it may be extended for reasonable cause. But there is no period of limitation as such provided under the Industrial Disputes Act . Therefore, that will be curtailment of the rights of the workmen or employees under the Industrial Disputes Act . In that situation section 37 declares that law should not be construed to curtail any of the rights of the workmen. [996A-B]

(d) Social Welfare and labour welfare broadens from legislation to legislation in India. It will be a well settled principle of interpretation to proceed on that assumption and section 37 of the Rajasthan Act must be so construed. In no way the Rajasthan Act could be construed to curtail the rights of the workman to seek any relief or to go in for adjudication in case of the termination of the employment. [996C]

(e) There is, therefore, no conflict between the Industrial Disputes Act , 1947 and Rajasthan Shops and Commercial Establishments Act, 1985 and there is no question of repugnancy. These two Acts are supplemental to each other. [994G-H; 996D]

3. <ORG> was, therefore, right in holding that Respondent No. 1 was a 'workman' and in granting relief on that basis. [996E] & CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.3521- 3523 of 1987.

From the Judgment and order dated 17.10. 1986 of <ORG> in D.B. Civil Special (Writ) Appeals Nos. 27,28 of 1983 and 224 of 1982.

Dr. <NAME>, <NAME> and <NAME> for the Appellant.

<NAME>, <NAME>, Mrs. <NAME> and <NAME> for the Respondents.

The Judgment of the Court was delivered by <NAME>, J. After hearing parties and after considering the relevant documents, additional as well as original, we grant leave to appeal in these matters. The appeals are disposed of by the judgment herein.

Since prior to Ist of January, 1978 the respondent No. 1 <NAME> was working under the appellant- company as an Internal Auditor on a monthly salary of Rs.1186.60 per month. The appellant alleged that the respondent started absenting himself from 28.1.78 and as such was not entitled to any salary for any period beyond 28.1.78 The said respondent was thereafter placed under suspension on 30th of March, 1978. The respondent on 4th of May, 1978 filed an application under section 33C(2) of the Industrial Disputes Act, 1947 (hereinafter called 'the Act') claiming the total sum of Rs.4,746.40 on account of salary from Ist of January, 1978 to 30th of April, 1978 at the rate of Rs.11,86.60 per month. The appellant company objected. The main ground of objections was that the respondent was not a workman. On or about 9th of November, 1978 there was an order dismissing the respondent from service. The respondent thereafter on 2nd of January, 1979 filed an application under section 28A of the Rajasthan Shops & Establishments Act , 1958 (hereinafter called 'the Rajasthan Act'). The said application was dismissed on 31st of July 1979 on the ground of limitation. <ORG> on 2nd of August, 1979 held that the respondent was doing clerical duties and as such was a workman under the Act and he was entitled to Rs.2,060 as salary from 1.1.78 to 9.3.78. The appellant filed Writ Petition No. 765 of 1979 in <ORG> against the order of <ORG> allowing the said salary. The respondent also filed another writ petition being writ petition No. 1091 of 1979 for declaration that he was entitled to receive Rs.2,066.98 as salary from 9.3.78 to 30.4.78. There was thereafter a reference under section 10 of the Act on 8.8.80 arising out of the dismissal of the respondent. The appellant filed another writ petition being Writ Petition No. 1623 of 1980 challenging the order of reference. All these aforesaid writ petitions were disposed of by the learned Single Judge of <ORG> on 16.3.82 holding that the respondent was not a workman. The other contentions urged before the leaned Single Judge were not considered by <ORG> in the view it took later on. On 17th of October, 1986 <ORG> reversed the judgment of the learned Single Judge and held that the respondent was a workman. Two writ petitions of the appellant were dismissed and the writ petition of the respondent was allowed. Aggrieved by the aforesaid orders the appellant has come up in these appeals before this Court.

The main question which requires consideration in these appeals is whether the respondent was a workman or not. For the determination of this question it is necessary to refer to section 2(s) of the Act which defines "workman" and states that it means any person emp-

loyed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and includes any such person who has been dismissed discharged or retrenched in connection with or as a consequence of any dispute. But sub-clause (iii) does not include any person who is employed mainly in a managerial or administrative capacity and sub-clause (iv) does not include any person who being employed in a supervisory capacity draws wages exceeding one thousand six hundred rupees per month or duties attached to the office or by reason of the powers vested in him, discharges functions mainly of a managerial nature. In view of the said definition, we are concerned here with the question whether the respondent was a workman as not being employed in any supervisory capacity. There is no controversy that the said respondent is not employed in any managerial or administrative capacity.

In this case before we deal with the facts and the relevant authorities of this Court it may be appropriate to refer to a decision of <NAME>, J. Of <ORG> as the learned Chief Justice then was in <CITATION> , A.I.R. 1958 Calcutta 273. There the learned Judge observed that whether a person was a workman within the definition of the Industrial Disputes Act was the very foundation of the jurisdiction of <ORG>. The Court further observed that in order to determine the categories of service indicated by the use of different words like "supervisory", "managerial", "administrative", it was necessary not to import the notions of one into the interpretation of the other. The words such as supervisory, managerial and administrative are advisedly loose expressions with no rigid frontiers and too much subtlety should not be used in trying to precisely define where supervision ends and management begins or administration starts. For that would be theoretical and not practical. It has to be broadly interpreted from a common sense point of view where tests will be simple both in theory and in their application. The learned Judge further observed that a supervisor need not be a manager or an administrator and a supervisor can be a workman so long as he did not exceed the monetary limitation indicated in the section and a supervisor irrespective of his salary is not a workman who has to discharge functions mainly of managerial nature by reasons of the duties attached to his office or of the powers vested in him. In that case the learned Judge further held that a person in charge of a <ORG> could not ordinarily be a clerk even though he may not have power to take disciplinary action or even though he may have another superior officer above him. It was further observed that distribution of work may easily be the work of a manager or an administrator but "checking" the work so distributed or "keeping an eye" over it is certainly supervision. It is reiterated that a manager or administrator's work may easily include supervision but that does not mean that supervision is the only function of a manager or an administrator.

Bearing in mind the aforesaid indication, it would be necessary to discuss some decisions of this Court. <CITATION> ,  1 S.C.R. 25, this Court dealing with certain types of employees observed "These employees distribute work, detect faults, report for penalty, make arrangements for filling vacancies, to mention only a few of the duties which are supervisory and not merely clerical." At page 46 of the report <NAME>, <NAME> as the learned Chief Justice then was observed that the work in a <ORG> involved layer upon layer of checkers and checking is hardly supervision but where there is a power of assigning duties and distribution of work there is supervision, (emphasis supplied). There the Court referred to a previous decision in Llyods <ORG> Ltd. v. <NAME>,  1 L.L.<NAME> 18, where the finding of <ORG> was reversed because the legal inference from proved facts was wrongly drawn and it was reiterated that before a clerk could claim a special allowance payable to a supervisor, he must prove that he supervises the work of some others who are in a sense below him. It was pointed out by <NAME>, <NAME> that mere checking of the work of others is not enough because this checking was a part of accounting and not of supervision and the work done in the audit department of a bank was not supervision. (emphasis supplied).

In <ORG>. v. <ORG>, [1971] 2 S.C.R. 758, this Court observed that a workman must be held to be employed to do that work which is the main work he is required to do, even though he may be incidentally doing other types of work. Therefore, in determining which of the employees in the various categories are covered by the definition of 'workman' one has to see what is the main or substantial work which he is employed to do. <CITATION> (dead) through Lrs.,  4 S.C.C. 696 it was held that the accountant was supposed to sign the salary bills of the staff even while performing the duties of a clerk. That did not make the respondent employed in a managerial or administrative capacity. The workman was, therefore, in that context rightly held as a clerk.

<CITATION> .,  3 S.C.R. 949 the question whether a person was performing supervisory or managerial work was the question of fact to be decided bearing in mind the correct principle. The principle therefore is, one must look into the main work and that must be found out from the main duties. A supervisor was one who could bind the company to take some kind of decision on behalf of the company. One who was reporting merely as to the affairs of the company and making assessment for the purpose of reporting was not a supervisor. See in this connection Black's Law Dictionary, Special Deluxe, Fifth Edition. At page 1290, "Supervisor" has been described, inter alia, as follows:

"In a broad sense, one having authority over others, to superintend and direct.

The term 'supervisor' means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment."

Reference may be made to the observations of this Court in <CITATION> .,  2 S.C.C. 569. There on facts a Security Inspector was held to be a workman. At page 575 of the report this Court referred to the decision in <ORG> v. <NAME>, (supra) and also the observations of this Court in <CITATION> ,  1 L.L.J. 462. In that case the nature of the duties performed by the appellant showed that the substantial part of the work of the appellant consisted of looking after the security of the factory and its property by deputing the watchmen working under him to work at the factory gate or sending them to watch-towers or around the factory or to accompany visitors to the factory and making entries in the visitors' register as regards the visitors and in the concerned registers as regards materials entering into or going out of the premises of the factory. There it was found that he had no power to appoint.

In the instant case the evidence have been summarised by <ORG>. Reference may be made to pages 65, 73, 80, 84 to 94, 95, 96 and 97 of the Paper Book which indicate the nature of duties performed by the respondent No. 1 herein. His duties were mainly, reporting and checking up on behalf of the management. A reporter or a checking clerk is not a supervisor. The respondent herein does not appear to us doing any kind of supervisory work. He was undoubtedly checking up on behalf of the employer but he had no independent right or authority to take decision and his decision did not bind the company. In that view of the matter keeping the correct principle of law in mind <ORG> has come to the conclusion taking into consideration the evidence recorded before <ORG> that the respondent is a workman and not a supervisor. That conclusion arrived at in the manner indicated above cannot, in our opinion, be interfered with under Article 136 of the Constitution. It is not necessary for our present purpose to set out in extenso the evidence on record as discussed by <ORG>. Our attention was, however, drawn by the counsel for the respondent to certain correspondence, for instance the letter at page 65 of the paper book bearing the date 14th of May, 1976 where the respondent reported that certain materials were lying in stores deptt. in absence of any decision. It was further reiterated that on inspection of the pieces that those pieces were found cracked. Similarly, our attention was drawn to several other letters and we have perused these letters. We are of the opinion that <ORG> was right that these letters only indicated that the report was being made of the checking done by the respondent. A checker on behalf of the management or employer is not a supervisor.

In the aforesaid view of the matter the conclusion of <ORG> that respondent No. 1 is a workman has to be sustained. We do so accordingly.

The next question that arises in this case is whether Act would apply or the Rajasthan Act would apply. In this connection section 28A of the Rajasthan Act is material. It enjoins that no employer shall dismiss or discharge from his employment any employee who has been in such employment continuously for a period of not less than 6 months except for a reasonable cause and after giving such employee at least one month's prior notice or on paying him one month's wages in lieu of such notice. Sub-section (2) of section 28A gives every employee, so dismissed or discharged, right to make a complaint in writing in the prescribed manner to a prescribed authority within 30 days of the receipt of the order of dismissal or discharge. Sub-section (3) of section 28A provides that the prescribed authority shall cause a notice to be served on the employer relating to the said complaint, record briefly the evidence produced by the parties, hear them and make such enquiry as it might consider necessary and thereafter pass orders in writing giving reasons therefor. Section 37 of the Rajasthan Act reads as follows:

"37. Saving of certain rights and privileges.- Nothing in this Act shall affect any rights or privileges which an employee in any establishment is entitled to on the date this Act comes into force under any other law, contract, custom or usage applicable to such establishment or any award, settlement or agreement binding on the employer and the employee in such establishment, if such rights or privileges are more favourable to him than those to which he would be entitled under this Act."

It has to be borne in mind that section 2A of the Act was amended to permit individual workman to ask for a reference in the case of individual dispute. This amendment was assented to by the President on 1st of December, 1965. The Rajasthan Act received the assent of the President on 14th of July, 1958. On 8th March, 1972 Chapter 6A including section 28A was inserted in the Rajasthan Act. Therefore the material provision of the Rajasthan Act is the subsequent law. Under Article 254(2) of the Constitution if there was any law by the State which had been reserved for the assent of the President and has received the assent of the President, the State law would prevail in that State even if there is an earlier law by the <ORG> on a subject in the Concurrent List. It appears that both of these Acts tread the same field and if there was any conflict with each other, then section 28A of Rajasthan Act would apply being a later law. We find, however, that there is no conflict. The learned Single Judge of <ORG> in <ORG>, Jaipur, (S.B. Civil Writ Petition No. 1206/85 decided on 9.6.1986) so. That decision has been upheld by <ORG> of <ORG> in Writ Appeal No. 231/86. The Division Bench of <ORG> in the instant appeal relying on the said decision held that there was no scope for any repugnancy. It appears to us that it cannot be said that these two Acts do not tread the same field. Both these Acts deal with the rights of the workman or employee to get redressal and damages in case of dismissal or discharge, but there is no repugnancy because there is no conflict between these two Acts, in pith and substance. There is no inconsistency between these two acts. These two Acts, in our opinion, are supplemental to each other.

<CITATION> ,  Suppl. 2 S.C.R. 8, <NAME>, J., as the learned Chief Justice then was observed that the result of the authorities indicated was as follows:

"Nicholas in his Australian Constitution, 2nd Edition, p. 303, refers to three tests of inconsistency or repugnancy:

1. There may be inconsistency in the actual terms of the competing statutes;

2. Though there may be no direct conflict, a State law may be inoperative because the Commonwealth Code is intended to be a complete exhaustive code; and

3. Even in the absence of intention, a conflict may arise when both <ORG> and <ORG> seek to exercise their powers over the same subject matter."

Quoting the aforesaid observations, this <ORG> in M/s.

<CITATION> ,  4 S.C.C. 45 at page 87 where A.P. Sen, J. exhaustively dealt with the principles of repugnancy and observed that one of the occasions where inconsistency or repugnancy arose was when on the same subject matter, one law would be repugnant to the other. Therefore, in order to raise a question of repugnancy two conditions must be fulfilled. The State law and the <ORG> law must operate on the same field and one must be repugnant or inconsistent with the other. These are two conditions which are required to be fulfilled. These are cumulative conditions. Therefore, these laws must tread on the same field and these must be repugnant or inconsistent with each other. In our opinion, in this case there is a good deal of justification to hold that these laws, the Industrial Disputes Act and the Rajasthan Act tread on the same field and both laws deal with the rights of dismissed workman or employee. But these two laws are not inconsistent or repugnant to each other. The basic test of repugnancy is that if one prevails the other cannot prevail. That is not the position in this case. Learned counsel on behalf of the appellant, however, contended that in this case, there had been an application as indicated above under section 28A of the Rajasthan Act and which was dismissed on ground of limitation. <NAME> tried to submit that there would be inconsistency or repugnancy between the two decisions, one given on limitation and the other if any relief is given under the Act. We are unable to accept this position, because the application under Section 28A of the Rajasthan Act was dismissed not on merit but on limitation. There is a period of limitation provided under the Rajasthan Act of six months and it may be extended for reasonable cause. But there is no period of limitation provided under the Industrial Disputes Act . Therefore, that will be curtailment of the rights of the workmen or employees under the Industrial Disputes Act . In the situation section 37 declares that law should not be construed to curtail any of the rights of the workmen. As <NAME> observed- "freedom broadens from precedent to precedent" so also it is correct to state that social welfare and labour welfare broadens from legislation to legislation in India. It will be a well-settled principle of interpretation to proceed on that assumption and section 37 of the Rajasthan Act must be so construed. Therefore in no way the Rajasthan Act could be construed to curtail the rights of the workman to seek any relief or to go in for an adjudication in case of the termination of the employment. If that is the position in view of the provisions 6 months' time in section 28A of the Rajasthan Act has to be ignored and that cannot have any binding effect inasmuch as it curtails the rights of the workman under the Industrial Disputes Act and that Act must prevail. In the premises, there is no conflict between the two Acts and there is no question of repugnancy.

<ORG> was, therefore, right in holding that the respondent was workman and in granting relief on that basis. Before we conclude we note that our attention was drawn to certain observations of this Court that interference by <ORG> in these matters at the initial stage protracts adjudication and defeats justice. Reference was made to certain observations in <CITATION> . & Ors., (supra). But as mentioned hereinbefore in this case, the interference was made by <ORG> not at the initial stage.

In the premises, we are of the opinion that <ORG> was right in the view it took. These appeals, therefore, fail and are accordingly dismissed. There will, however, be no order as to costs. The reference before the <ORG> should proceed as expeditiously as possible.

N.V.K. Appeals dismissed.