JUDGMENT <NAME>, C.J.

1. This application under Section 24, Press (Objectionable Matter) Act, 1951 (Act 56 of 1951), hereinafter called the Tress Act is directed against an order, dated 4-3-1950, made by the Governor of Assam under Section 11 of the said Act, forfeiting to Government the booklet entitled "Samaj Tantrabad Kiya Lagey' written by one <NAME>, printed at <ORG>, Gauhati, and published by the petitioner <NAME>. The State Government and the Chief Secretary of the State are the opposite parties to this application.

2. The petitioner claims to be a citizen of the Indian Union and Is the publisher of "<ORG>", <ORG>, a concern which is said to have been functioning since 1945 and publishing a number of books.

On 17-11-52, the petitioner published the booklet in question, all copies of which have since been directed to be forfeited to <ORG> by the order of <ORG> now impugned before us. The said booklet appears to be a rendering in in Assamese language of the original which was published in Bengali under the title "Samajtan-trik Biplab Aje Nay Kena" by the above concern on 1-10-1947.

That booklet underwent a second edition on 18-7-1948, and the petitioner alleges that in view of the public demand, a Hindi version thereof was also published in due course, and certain chapters of the booklet were translated, printed and published from time to time in the Assamese weekly "Panchayat" during 1947-48.

The petitioner claims that there is nothing in the booklet to bring it within the definition of 'objectionable matter' as defined in Clauses (i) and (v) of Section 3 of the Press Act, as alleged in the <ORG> order. The <ORG> order in question runs thus :

The 27th February 1953.

No. C.136/53/6.- In exercise of the powers conferred by Section 11 of the Press (Objectionable Matter) Act, 1951 (Act No. 56 of 1951), the Governor of Assam, on the certificate of the Principal Law Officer of the State, is pleased to declare all copies, wherever found of the printed booklet in Assamese entitled "Samaj Tan-'trabad Kiya Lagey" written by <NAME>, a R.C. P. I. leader, published by <NAME>, <NAME>, Gauhati, and printed by <NAME> in <ORG>, Gauhati, and all other documents containing reprints, copies, translations of or extracts from, the said booklet to be forfeited to <ORG> on the ground that the said booklet contains objectionable matters as denned in Clauses (i) and (v) of Section 3 of the said Act.

Sd/- S.K. Datta, Chief Secreary to the Government of Assam." The order has been assailed before us mainly on these grounds :

(1) That the order is incompetent and does not fulfil the essential requirements of Section 11 of the Press Act.

(2) That Section 11 of the Press Act under which the order appears to have been passed is ultra vires Article 19(1) (a) and (g) of the Constitution and is not saved by Clause (2) of that Article, and (3) that the said booklet did not contain any objectionable matter.

I will initially examine the first two contentions together. Section 11 of the Press Act which in-'vests Government with power to declare certain publications forfeited, runs as follows :

<ORG> may, on the certificate Of the Advocate General or the Principal Law Officer, as the case may be, of the <ORG> or of the Attorney General of India, that any issue of a newspaper or news-sheet or any book or other document, wherever made, contains any objectionable matter, by notification in the official Gazette, stating the grounds for the order, declare that every copy of such issue of the newspaper or news-sheet or of such book or document shall be forfeited to the Government.

'Objectionable matter' referred to in this section has been defined in Section 3 of the Act. We are in particular concerned with Clauses (i) and (v) of the definition to which reference has been made in the order of the <ORG>.

According to this section, the expression 'objectionable matter' means any words, signs or visible representations which are likely to (i) incite or encourage any person to resort to violence or sabotage for the purpose of overthrowing or undermining the Government established by law in India or in any State thereof or its authority in any area; or, ...(v) promote feelings of enmity or hatred between different sections of the people of India.

I need not refer to the other clauses for the present. The Explanations to the section are of great significance and I will have occasion to advert to them at a later stage.

3. It is to be seen that in this section, the law does not provide that before passing the order, Government should give any notice to the per-sons affected thereby to show cause against the action proposed to be taken. The declaration forfeiting the objectionable document can be made by Government without giving any hearing at all to the party concerned and without any inquiry by a Sessions Judge or a Jury as it is to be found in relation to the proceedings under Sections 4 and 5 or those under Sections 7 and 8 of the Act.

I am, however, not prepared to accede to the argument that the absence of such provisions would necessarily render Section 11 void as imposing ah unreasonable restriction on the fundamental rights of freedom of speech and expression or the pursuit of any lawful avocation, provided the safeguards already mentioned in law are adequate and reasonable, in my opinion, it would be wrong to judge all the above sections of the Act in an identical perspective.

It must be borne in mind that the proceedings under Sections 4 and 5 or 7 and 8 of the Act are very different from those under Section 11 . The object of those sections is to obtain security or additional security from the offending Press, whereas the object of Section 11 is to prevent immediately the circulation of a book or paper which contains objectionable matter. It would be impossible to safeguard public order or to prevent the mischief of circulation of such objectionable matter if the <ORG> had to wait for a judicial decision in order to forfeit the offending document.

The very essence of the power under Section 11 is that it should be exercised promptly and expeditiously. There must be, however, ample and reasonable check upon this power of the <ORG> and so long as there is some ultimate judicial corrective on the exercise of the power, it cannot be held to be unreasonable. It must, therefore, be seen whether there are such safeguards, if any, and whether those safeguards are real and substantial or merely illusory. It has also to be seen whether the safeguards in question have been respected or violated in the present case.

4. The two safeguards provided by the Act itself are that the Governor cannot act under 8. 11 unless the principal Law Officer or the Advocate General of the State, as the case may be, or the Attorney General of India certifies that the offending booklet or pamphlet contains "objectionable matter"-and the other, that under Section 24 of the Act the person aggrieved by the order of Government can move <ORG> against that order within sixty days of the date of such order. If these safeguards are real, then it must be held that the restrictions imposed on the fundamental rights of speech and expression by virtue of Section 11 are reasonable restrictions and the provision would be saved under Article 19(2) of the Constitution.

I shall first take up the question whether in the present case, <ORG> acted "on the certificate of the Advocate General or the principal Law Officer as the case may be, of the <ORG> or of the Attorney General of India". It is conceded here that there was no certificate given by the Attorney General of India or by the Advocate General of the <ORG>. Mr. <NAME>, on behalf of <ORG>, urges that in the present case, the certificate had been given by the Legal Remembrancer of the <ORG> who was also the principal Law Officer.

The 'principal Law Officer' has not been denned in the Act; but Mr. <NAME> relies in this connection upon The Legal Remembrancer's Manual of 1930 (<ORG>). The Assam Law Department Manual, however, does not support Mr. <NAME>. Indeed it is definitely against his contention. Rule 1 under Chapter IA of the Manual shows that the Advocate General is the principal Law Officer and Legal Adviser to Government. This would be evidently so, because whatever the position may have been earlier, under Section 55 , Government of India Act (1935), the Governor had to appoint an Advocate General for the Province, whose duty was to give advice to the Government on such legal matters as might be referred to him. Assam was undoubtedly one of Governors' Provinces as provided by Section 46 of the Act. Section 55 of the old Act corresponds to Article 165 of the Constitution which applies not only to Part A States, in which Assam is included, but also to Part B States by virtue of Article 238 of the Constitution. Part C and D States are, however, differently administered and there is no specific provision for the appointment of an Advocate General in those States (see Articles 239 and 243).

Therefore, there can be no question that, so far as Assam is concerned, it had to be certified by the Advocate General that the booklet in question contained "objectionable matter". The Legal Remembrancer, in the first place, does not even come under the designation of the "principal Law Officer of the State"; it is the Advocate General who is designated as such in the Manual. In the second place, the words "as the case may be" which qualify the disjunctive terms, the "Advocate General" or the "principal Law Officer of the State" clearly show that they have reference only to those States where there is no Advocate General. This conclusion is also supported by the statement of the Home Minister during the Parliamentary debates when the Bill, which is the foundation of the Press Act , was on the legislative anvil. For the reasons aforesaid, I cannot but come to the conclusion that the Legal Remembrancer was not competent to certify that the booklet contained "objectionable matter".

In the absence of any such certificate by the Advocate General of the State or the Attorney General of India, the order of forfeiture is. illegal and ultra vires Section 11 of the Act itself. The certificate of the Advocate General is the very foundation of the jurisdiction conferred on the Governor or for the matter of that, on the Government of the State, to make the order of forfeiture under Section 11 of the Act, and there being no such foundation for the order, it cannot stand. The Legal Remembrancer, even though he may be a Judicial Officer, in some States, acts merely as an Executive Officer and the certificate given by such an officer would not inspire the same amount of confidence in its accuracy and disinterestedness as the certificate of the Advocate General or the Attorney General of India.

These other officers, by virtue of their constitutional position, their legal acumen and integrity are expected to take a more impartial and independent view of things and are pre-eminently competent to certify as to whether the document complained of does contain objectionable matter. ' They are expected to give the correct advice to the Governor and the safeguard thus provided under Section 11 is a legitimate safeguard. In the present case, even this essential safeguard has been violated, as we have already found. The result is that the order in question passed by the Government is quite illegal and incompetent inasmuch as the essential requirement of Section 11 of the Act itself has not been fulfilled, and the contention of the learned Counsel on this ground must prevail.

5. It has, however, been argued that Section 11 itself is ultra vires. There can be no doubt that Section 11 of the Press Act purports to impose restrictions on the right of circulation. Freedom of speech and expression evidently includes freedom of propagation of ideas. Those ideas may be one's own or those of others, and this freedom is ensured by the freedom of publication and circulation. The restriction, therefore, sought to be put by Section 11 would come into conflict with the fundamental rights provided under Article 19(1) (a) and (g) unless the said provision is saved under Clause (2) of the Article. In other words, it will have to be seen whether it imposes reasonable restriction on the exercise of the aforesaid rights and that the restriction is in the interest of public security. The use of the term 'reasonable' in Clause (2) of Article 19 , as it is well established now, imports the doctrine of judicial review and what is reasonable restriction of the freedoms guaranteed under Article 19 is a matter to be decided by the <ORG> in the light of the attendant circumstances in each case. In doing so, it should be the <ORG>'s duty to examine not only the substantive part of the law but also the procedural part of it. In other words, it has to see that in imposing the restrictions in question, the <ORG> does not arrogate to itself more powers than are absolutely necessary to circumscribe the fundamental rights indicated above. The objective test which the <ORG> has to apply is to ascertain whether the restriction has reasonable relation to the authorised purpose of the legislation or is an arbitrary abridgment of the guaranteed freedoms under cloak of any of the exceptions.

6. The above principles are accepted, but in view of the fact that we have already held that the order impugned before us does not fulfil even the requirements of Section 11 of the Press Act and is, therefore, illegal and without jurisdiction, it would be unnecessary for us to probe this matter any further.

The learned Counsel for the petitioner has, however, vehemently argued that the safeguard provided under Section 24 of the Act is almost nugatory. Section 24 says that any person aggrieved by an order of forfeiture passed by <ORG> under Section 11 , may, within 60 days of the publication of such order, apply to <ORG> to set aside such order, and upon such application, <ORG> may pass any order that it thinks fit, confirming, varying or reversing the order of <ORG>.

The learned Counsel submits that in the absence of. any provision in the law for any service of notice of the order on the person aggrieved, it is possible to conceive of cases where the period of limitation may run out without any knowledge of the order passed against him, and, as such, he may be deprived of his remedy to move <ORG> against the order in question. The learned Counsel, therefore, contends that it was essential in Such cases to provide for service of the order containing the <ORG> declaration upon the persons affected thereby, in particular, upon the author of the document and the printer and the publisher thereof.

Mere notification in the Official Gazette, it is Urged, would not be adequate notice in such cases, and individual notices were essential to safeguard the remedy provided under Section 24 of the Act. The learned Counsel relies on the decision in - <CITATION> , affirmed in - <CITATION> and also upon a Full Bench decision in - <CITATION> AIR 1952 Trav-C 217 (C).

Ordinarily, under the General Clauses Act , a notification in the official <ORG> would be, in law, deemed to be sufficient notice, specially where the notification is of a general character intended for the members of the public, and not for any particular set of individuals. On behalf of the Government, it has also been pointed out that the actual act of forfeiture or confiscation itself would amount to notice to the person affected. This would be normally so.

We think, however, that there should be some distinction made between a member of the public possessing a copy or some copies of the offending booklet or document and the author, printer or publisher thereof. These latter persons are vitally and mainly affected by the order of forfeiture or confiscation passed by the <ORG> under Section 11 . The confiscation of the offending booklet from any member of the public may not necessarily come to the knowledge of the author, the printer or the publisher thereof, and it is possible to think of cases where these people may remain completely in the dark about the action taken by the <ORG> until it is too late.

An obvious instance which I have in mind is where a particular edition of the offending booklet has been exhausted in the hands of the editor, the printer and the publisher and has gone out into the open market, The <ORG> having knowledge of the fact, may refrain from taking any action on the foot of the forfeiture order against these persons until another edition of the booklet is ready for circulation, which may be much beyond the period of 60 days mentioned in Section 24 . In doing so, the <ORG> would not be acting indiscreetly or even deliberately, but the effect may be to defeat their lawful remedy. In the mean time there is nothing to stop <ORG> from preventing the circulation of the booklet in the open market by forfeiture or otherwise. But does it mean necessarily that the editor, the printer and the publisher will have notice of the order by such action? I say, necessarily. The answer must be in the negative.

As against other undefined persons, therefore, their address being unknown, the <ORG> notification would be sufficient; but as against the editor, the printer and the publisher, whose address must be known to the <ORG>, there is some justification for the contention that they should have individual notices of the order. In my opinion, therefore, it would have been better to make some independent provision under Section 11 of the Act in the following terms :

On such notification in the Official Gazette, the declaration made by <ORG> in the previous paragraph shall take effect, but a copy of the declaration shall be served upon the author, the printer and the publisher of the document (etc.) ordered to be forfeited with a view to enable them to take action, if so advised, under Section 24 of the Act within the period of limitation provided therein.

A notice of the declaration can be served upon the persons indicated above either by a registered cover or in the manner provided under Section 28 of the Act for service of notice. This would be entirely a matter of detail. The above suggestion is indeed a matter for the <ORG> to take into consideration in order to make the provisions unexceptionable and to avoid any criticism on this score. But for the present, I would refrain from expressing any final opinion in the matter and from declaring on this ground, that Section 11 of the Act is ultra vires Article 19(1) (a) and (g) of the Constitution.

7. Turning now to the next contention of the learned Counsel, I find it difficult to hold that the pamphlet falls under the definition of 'objectionable matter' under Section 3(i) and (v) of the Act.

For the petitioner, it has been argued that the booklet merely discusses the political philosophy and economic theory underlying socialism; it shows that capitalism has no progressive role to play in solving the manifold problems that face the country and that the socialistic order alone can release all the productive forces of society. The booklet, therefore, according to the petitioner, appeals to the people to unite to establish <ORG> in order to emancipate humanity from all its bondage.

<ORG> have not, in their order, objected to any particular portion of the booklet. In the submission of the learned <ORG> Advocate, the whole booklet is objectionable. Therefore, we had to examine the entire translation of the booklet in order to find if there is anything objectionable contained in it, as stated in the order of <ORG>.

Clause (i) of Section 3 of the Press Act requires that there must be something in the words which are likely to incite or encourage a person to resort to violence or sabotage for the purpose of overthrowing or undermining the Government established by law in India or any State thereof or its authority in any area. The meaning of the term 'sabotage' has been explained under Explanation III of the section which means the doing of damage to plant or stocks, or bridges, roads and the like with intent to destroy or injuriously to affect the utility of any plant or service or means of communication.

I have not come across any words or passage in the whole of the booklet which tend to or are likely to incite or encourage any person to the doing of any such act. So, sabotage is ruled out of consideration. So far as Clause (v) of Section 3 is concerned, I should also at once observe that it has no application to the case at all. The booklet, of course, contains a tirags against capitalists and capitalism. It does suggest that all the evils of society and the country are due to capitalism and that it should be exterminated at once; but the position is well settled that the words 'capitalism or capitalist' do not denote any determinate section of people so as to attract the application of Clause (v) of Section 3 to such cases. The decision of <ORG> in - "<ORG>" Urdu daily newspaper v. <ORG> EP 305 (SB) (D) and my own decision in - <CITATION> AIR 1951 Pat 12 (SB) (E) relying upon an earlier decision of the same Court, are cases in point.

The only point, therefore, which remains to be seen is, whether the pamphlet is likely to incite or encourage any person to resort to violence for the purpose of overthrowing or undermining the <ORG>. The explanations to the section are important. They state that Comments expressing disapprobation or criticism of any law or of any policy or administrative action of the <ORG> with a view to obtain its alteration or redress by lawful means, and words pointing out, with a view to their removal, matters which are producing, or have a tendency to produce, feelings of enmity or hatred between different sections of the people of India, shall not be deemed to be objectionable matter within the meaning of this section.

It is also provided that in judging whether any matter is objectionable matter under this Act, the effect of the words, signs or visible representations, and not the intention of the keeper of the press or the publisher of the newspaper or news-sheet, as the case may be, shall be taken into account.

The underlying principle of these Explanations is that the document has to be freely and fairly construed and mere criticism of a particular system or policy or administrative measure, even if couched in harsh, exaggerated or indiscreet language, should not be held to be objectionable unless it definitely incites or is likely to lead to violence. To see if the document is offensive, as such, one has to read the document as a whole. The <ORG>, in a case of this kind, have to put themselves, as far as possible, in the place of a jury and to take a broad view without refining overmuch any particular words or phrases used in the document.

As observed by Sir <NAME> in - - <CITATION> AIR 1942 FC 22 (P), if the Courts :

assume in part the functions of jurymen when they hear these cases, they will generally be able to come to a decision not only in harmony with the true principles of the law, but also not obnoxious to commonsense and the circumstances of the time. And in holding the scales evenly between Government and citizen they will be forgetful neither of the obligation of the one towards the public at large nor of the individual and private rights of the other; for the preservation of order is a thing in which all citizens have an interest no less than in the maintenance of freedom of speech and the right to criticise all matters of public interest.

What is, therefore, required is that the <ORG> should in every such case, consider the book or newspaper article as a whole and in a fair and free and liberal spirit not dwelling too much upon isolated passages or upon a strong word here and there which may be qualified by the context, but endeavouring to gather the general effect which the whole composition is likely to produce on the mind of the reader; (See - AIR 1949 EP 305 (SB) (D)'). These well established principles have to be kept in the forefront.

I agree with the petitioner's counsel that the booklet is a mere thesis on the virtues of socialism. It seeks to analyse the various evils of society, attributes all those evils to capitalistic exploitation and suggests that the only panacea is socialism. It, therefore, pleads for the introduction of socialism with the utmost speed and expedition and thus advocates an all-round revolution in the country. There is, however, nothing either directly or indirectly to indicate that this revolution must be brought about by violent means. Many of the criticisms which are levelled against the prevailing conditions of society and politics at the time when the booklet first came into being have been out-dated. It appears that the book was written at the time of the partition of the country in 1947 and on the eve of the <ORG> rule. The author was of the view that no reorganisation plan based on capitalist exploitation would ever succeed. The only solution, according to him, was socialism and it was on the foundation of socialism alone that the country could progress and develop into a peaceful and prosperous country. This is the underlying object at the publication and it is for this reason that the booklet was entitled "why socialism is wanted".

In passing, the author severely criticises the capitalists and all those who are not genuine believers in socialism and are in a way opposed to the reforms which the author presses for. The author laments the inefficiency and unfitness of the present ruling class, which, according to him, has been the topic of discussion everywhere, and that though the revolutionary powers in India were becoming self-conscious, they were not as wide awake as the anti-revolutionists were.

A large part of the discussion in the booklet seeks to analyse the prevailing political and social evils and then it proceeds in the last few pages to suggest remedies. It differentiates between socialism or the rule of peasants and workers and what the author calls a bourgeois democratic revolution. It examines the contentions of those who claim that bourgeois democratic revolution must precede socialism and the latter should follow in the wake of the former, and not simultaneously. The author does not believe in the latter school of thought and appeals for a general revolution in all spheres of political activity. In all this analysis, the target of attack is capitalism and the author winds up with glowing tributes to socialism which, he claims, can alone bring about the millennium of which the author dreams.

The book also discusses the means to increase production and the income of the masses. This is the scheme of the booklet. One may not agree with the premises or the reasonings of the author, but it is impossible to find fault with the discussions on the ground that they do or are likely to incite or encourage violence.

It is true that the author advocates revolution in almost all spheres of political life, but that does not necessarily imply that the revolution, of which he is thinking, must be a revolution brought about by violence. There is nothing in law to prevent a particular party in placing its philosophy and programme before the public, so long as it does not directly or indirectly incite violence or subversion of the Government established by law. A party may even criticise the machinery of the <ORG>, may suggest that the old <ORG> machine is bound by thousands of threads to the bourgeois and permeated through and through with routine and inertia and, therefore, that machine has to be destroyed and replaced by a new one. This need not necessarily lead to the inference that the author advocates violent revolution.

8. Mr. <NAME>, the learned Senior Government Advocate, contends that the booklet contains a scurrilous attack on capitalists, industrialists and zemindars whose existence may be necessary to build up the economics of the country; it also suggests that any delay in destroying these bodies is dangerous in the interest of the country, and that, therefore, an all-round revolution is necessary on the pattern of the Russian Revolution. The document, therefore, by necessary implication, according to the learned Counsel, incites or tends to incite violence. He contends that the author does not seem to have any patience for the ballot box or constitutional methods. He refers to certain passages in particular, which, according to him, are clearly offensive.

I will, therefore, refer to some of the most prominent of them to examine the contention of Mr. <NAME>. He refers to a passage where the author says :

That is why we have always warned not to have any compromise with capitalists or capitalism and declared to carry on an uncompromising class struggle, against capitalism, foreign imperialism, feudalism and all the like on the basis of class struggle.

There is nothing wrong in this expression of opinion. India had acquired a Dominion status and there was already the partition of the country And a General Election immient; and it was open to the author to educate the masses in his political theories. Indeed the author was right in assuming that any discussion on political topics was well understood by the intelligent mass and it was possible for it to judge the different principles and courses.

Then Mr. <NAME> refers to another passage where the author says the autocracy of the Native States is surviving to-day and will do so under shelter of capitalism. They will survive under different forms and names so long as the socialist movement thoughout the whole of India is not transformed into a revolution now.

Here again, there is nothing objectionable in the passage Just quoted. Besides we all know that it is a historical anachronism now, the Native States have since merged in <ORG> and the author's prophecy has been belied by the march of events.

Another passage runs thus :

The Indian Revolution will not await idly the move for the world revolution; rather the Indian revolution will be a prelude to world revolution.

The context shows that all the time the author is thinking of a socialistic revolution for the full freedom of India. He thinks that this freedom of India is bound up with socialism in the rest of the world. The author warns that war is a meaance to freedom and must be annihilated; he asserts that the previous wars were fought only to protect capitalism and such wars can be avoided by socialistic revolution, in the world. If at all, the passage only shows that the Indian revolution is to lead, and not to follow any previous pattern.

Mr. <NAME> claims to read it with another passage which is as follows :

About 30 years ago <NAME> brought about this revolution, the Socialist Revolution, in backward Russia. The socialist revolution set at naught the enmity of the entire world; he shaped Russia in such a pattern that even <NAME>, the indomitable war-monger of the world, had to-surrender before Russia. At that time Russia had no example of any Socialist country from which it could learn. Today after 30 years, we have example from the history of Russia; we have seen their defects, & shortcomings, if any. We shall, therefore, be able to establish socialism in India in a more flawless way.

The author no doubt offers here a tribute of praise to <NAME> and the Russian revolution, but at the same time he claims to be conscious of its shortcomings and wants to "establish socialism. in India in a more flawless way". This is not blindly adopting the Russian revolution with all its alleged orgies of blood-shed and violence.

At another place the author says "Frustration, in life is seen all round to-day. Life is to-day only a beast of burden; it is only conveying the explosion of destruction". I do not see what is wrong with this passage. The words "explosion of destruction" were only figuarative.

Then again the author says :

The atmosphere of the country has been rendered poisonous; all sorts of protests are going down to the dust and all kinds of sense of responsibility and consciousness of society have been destroyed. Not a single moment more can be wasted from stopping this stinking state of society. The stagnant course of society mast be released. The country is falling backward through delay and feeling of hesitation. There is no other way of salvation but socialism in these horrible circumstances arising out of murders of children and women, burning of villages, attack on helpless passerby, bribery, oppression, hooliganism, black-markets, etc. Hence the sooner the socialist revolution is brought about the better for all.

Another passage is :

The first thing that is needed is the steadfast. determination that we shall bring about socialism right now. Without that will, without that effort, the country will not itself turn socialist. No social revolution breaks out itself, only the ground becomes prepared; Man's will-power and conscious effort transform that prepared ground.

These passages would be largely covered by Explanation I to Section 3 itself.

Mr. <NAME> lays some stress on the passage which runs thus :

They do not want to give political colour to the strikes of the labourers; they do not seek to make workers antagonistic to Government; they are not prepared to shoulder the entire responsibility to devise and plan a compaign based on the entire demands of the people; because they know that this will bring about the revolution. They are preparing the ground not for revolution but for election based on adult franchise.

Mr. <NAME> contends, on the above passages, that the author is in favour of encouraging strikes and does not believe in election based on adult franchise. This may be so. Strike, by itself, is not illegal, nor is a disbelief in election based on adult franchise in the set up of things of which the author speaks. With reference to the context, it appears to me that the passage is in criticism of the conduct of the Stalinist Communists who, according to the author, helped in the last imperialist war falsely calling it the 'Peoples' War' and then instead of preparing the people for attaining the socialist ideals, were merely thinking of the elections which were then impending.

It would not be fair to put any other sinister complexion on it. Mr. <NAME> similarly builds his arguments on another passage which is as follows :

It is not possible for such a person to understand the significance of mutiny in the <ORG>; for him a revolt in the <ORG> force or the army brings no significance; the present movement of the workers bears no political or social significance to him; he has no enthusiasm in the present revolution. Because all those discontent, rebellions and strikes herald the historic signal for a socialist revolution. Without the desire to make the revolution successful, the agitation becomes meaningless. The entire masses of the country seek today a drastic change of things.

Mr. <NAME> contends that this clearly shows that the author encouraged mutiny in the army and the <ORG> and the police force and is, as much, definitely encouraging violence.

In my opinion, it does nothing of the kind. It is common knowledge that near about that period there was some unrest in the navy leading to <ORG>; there was also some revolt in the <ORG> force. The author presumably refers to them and says that they were symptoms of unrest and dissatisfaction in the masses with the then existing state of things, of which the reformers omit to take notice and which could alone be remedied by a socialist revolution. This is clear from the passages which follow and have preceded the passage in question.

The most objectionable part of the booklet, according to the learned Government Advocate, is where the author attacks the <ORG> machinery and seeks its destruction. These passages may be collated here for the sake of convenience, though they may appear somewhat torn out of their context. The author says :

The common view is that this <ORG> is a kind of necessary machine. It has no politics of its own to guide or determine the course of action according to programme";

The machinery of the <ORG> is not such a flexible one as to render everything possible merely because a party is in the majority in the <ORG>, nor to transform the appearance of a <ORG>";

The modern <ORG> is a legitimate monstrous plunderer on behalf of the capitalists;

With this machinery of the <ORG>, the minimum programme for full freedom in the country can never be implemented; and there will be no bigger farce than a statement to the contrary;

One after another, of the present "Socialist" Government of England has failed because they have termed regulated capitalism as "Socialism";

The capitalists of the world have many times let out their State apparatus to the so-called Socialists only to avoid impending danger of mass revolution and revolt and only after a few days they have become their old selves and taken over their own machinery;

Franchise for democracy based on capitalist inequality is a big hoax and a sheer mockery. Equality in franchise is meaningless without economic equality. The capitalists can always Send their own men to the Legislatures by virtue of their wealth, influence, organised power, publicity machinery, aid of hired volunteers and by payment of money;

Legislatures cannot penetrate into the huge impregnable fortress of aristocracy constituted of the Government servants, military generals, police, military, the Judges of the Courts, etc.;

Rather day by day the machinery of administration is becoming the cause of all discontent and degradation. All the exploiters have kept their own visible and secret fortresses in every stem of this machinery; and unless this sort of the <ORG> is shattered to pieces, no work of reconstruction is possible.

9. Mr. <NAME> contends that these passages, would incite people to violence and lead to a destruction of the <ORG> machinery by a process ' of violence. This contention does not appeal to me. Most of these passages are mere stock-in-trade of some of the political parties who seek to change the existing order of things or who genuinely believe that the <ORG> of the day has failed to deliver the goods. There may be something in the assertion that the <ORG> machinery is top-heavy and is not serving much useful purpose and requires drastic changes. The author may be right or may be wrong, but much of these criticisms would be saved by the Explanation to Section 3 of the Press Act itself. It is clear, however, that the author is not necessarily advocating violence. Indeed he explains what he means by shattering the "<ORG> apparatus". He poses the questions and answers thus :

When a real revolutionary says that the <ORG> apparatus should be shattered, what does he mean to say : He does not mean that all the buildings, houses, offices, Courts and forts should be shattered nor that every one who is serving Government to-day should be executed. The <ORG> is merely a party or an institution. an armed and powerful organisation. This party of Government is constituted of a variety of people; but its leadership and authority are entirely with the capitalists. This whole party will, therefore, have to be knocked down and a new one created. This institution must be torn asunder so that the people within it cannot remain united any longer but become disintegrated and mix with the masses. This work of destruction will never be accomplished unopposed; it will be rendered possible only through revolution; and destruction must be resorted to to the extent inevitable.

Again he follows it up with these remarks :

Whoever seek to transform capitalism gradually into socialism, are too happy in the achievement of this <ORG> as if this <ORG> will render the work of transformation possible. Capitalism will never transform itself into socialism. Capitalism and socialism are ever mutually antagonistic to each other; one is the biggest foe of the other. Socialism can be achieved only after destruction of capitalism. The effort to transform capitalism into socialism by peaceful means and by degrees with the aid of this <ORG> is the biggest humbug. Yet the different parties to-day are busy with trick by uttering such things.

10. The pamphlet, as I have said, is a fairly long one, containing about 71 full size typed pages, and I have picked out only some of the important passages on which Mr. <NAME> relied in support of the order of Government. I cam find nothing the booklet to lead us to hold that it is objectionable in the sense in which it is understood in law. No argument can be founded on stray passages or strong expressions here and there standing in their isolation and apart from the context. Some allowance has also to be made for figures of speech and expression.

11. The word 'revolution' itself need not be a bug-bear in the present age and conjure up all those hideous images of blood and carnage in the mind with which it was wont to be associated earlier. We have in our life known of a far-reaching non-violent revolution which transformed the face of almost a continent like India and wrought extraordinary changes in its political and social life. We are long past that stage when the word "revolution" was an anathema to most of us. With the advance of political knowledge and consciousness, revolution may mean nothing more than a rapid and radical change of ideas and ideals necessitating re-orientation of the society, polity and the <ORG> machinery on the lines of those changes. All this may come about without resort to violence.

I find myself in respectful agreement on this point with all that has been observed by <NAME>, in - <CITATION> , where he says :

It is true that the article does state that the working class and the toiling masses can get hold of power through the path of revolution alone. But the expression "revolution" is used here, as is clear from the context, in contradistinction to reformism or gradual evolution. The revolution preached is not necessarily a violent revolution. It is a matter of history how that our own country achieved a revolution- and a very important revolution-by non-violent method, and it cannot be suggested that the only revolution that history knows of is necessarily a violent revolution. It is open to a writer to suggest that ordinary revolutionary method is either too slow or not adequate to achieve a particular purpose and that purpose can only be achieved by a revolution. But by advocating revolution, it does not necessarily follow that he is advocating a type of revolution which would come within the mischief of Section 4 (1) (f). As the writer has not stated in this article that the toiling masses should take up arms and fight for their rights and thus achieve a revolution, we refuse to read this expression as inciting the masses to violent methods.

We have no hesitation in making the same observation in respect of this booklet and in holding that on a fair reading of it there is nothing to bring it within the definition of 'objectionable matter' as held by <ORG>.

12. I may recall here what has been stated earlier that the booklet was originally published in Bengali as early as 1947 and underwent two editions by 1948. Excerpts from this booklet were published in the Assamese weekly "<ORG>" from time to time during 1947-48 and the Assamese version of it was published only in November 1952. During all this period no objection was taken to the publication by the <ORG>. In July 1950, <ORG> was banned in Assam, but that ban was withdrawn in November 1952. It is, therefore, somewhat difficult to understand why even after the withdrawal of this ban, the <ORG> considered it wise to pass an order of forfeiture against this publication.

13. For the reasons set out above, we are of opinion that the order of <ORG> cannot be sustained. The application should be allowed and the declaration made by the <ORG> forfeiting the booklet in question should be set aside.

14. The petitioner is entitled to his cost; hearing fee Rs. 100/-.

15. When this judgment was about to be delivered, the learned Senior Government Advocate drew our attention to Government Notification No. JJD. 77/46/76, dated 12-4-51, on the basis of which he contended that the Rule in the Assam Departmental Manual under which the Advocate General had been designated as the Principal Law Officer of the State, stood abrogated. This case was heard on various dates and it was even set down to be mentioned on another date subsequently, but during all these stages, the above notification was never brought to our notice. For obvious reasons, the Court cannot favour the procedure adopted. It is hardly necessary to observe that it is the clear duty of parties and their counsel to be adequately briefed when their cases are posted on the Cause List for hearing, and submissions made from stage to stage cannot be entertained as they are both inconvenient and improper.

We have, however, looked into the notification aforesaid and we see no reason to alter our decision. As a matter of fact, there is nothing in the notification to indicate as to who is the Principal Law. Officer of the State. In fact, it merely defines the duties of the Advocate General and his remuneration, etc., and does not abrogate the previous rule. Even if it did, we have already said that in view of the words "as the case may be" occurring in Section 11 of the Press Act, the certificate contemplated by that section must be given by the Advocate General in those States where there is an Advocate General, and in the absence of such a certificate, action under Section 11 could not be taken.

Deka, J.

16. I agree.

<NAME>, J.

17. I agree.


ORDER

1. This Writ Petition coming on for hearing on this day upon perusing the petition and the affidavit filed in support thereof the order of <ORG>, dated 12th May, 1980 and made herein, and the Counter affidavits filed herein and the records relating to the order relevant to the aforesaid prayer on the file of the 1st respondent comprised in the return of the 1st Respondent herein to the writ made by <ORG> and upon hearing the arguments of M/s. <NAME> for M/s. <NAME>, <NAME> and <NAME>, Advocates for the Petitioner, and of Mr. <NAME> Advocate for the 1st Respondent and of Mr. <NAME> for M/s. <NAME> and <NAME> Advocates for the 2nd Respondent the Court made the following orders :-

2. This writ petition raises an interesting question which may require the attention of the <ORG> as to the exact scope of the appellate authority under S. 41(2) of the Tamil Nadu Shops and Establishments Act , 1947 (hereinafter referred to as the Act).

3. The facts are as under :

"The second respondent was in the employ of the writ petitioner as a Junior Officer. On 12th January, 1979 he wrote a letter addressed to the Secretary of the writ petitioner as follows :

"I shall be thankful if you will kindly relieve me from services from 12th January, 1979.

This may be treated as a formal letter of resignation from me."

On this, the following communication emanated from the management on 12th January, 1979 itself :

"We are in receipt of your letter of to-day's date tendering your resignation from the services of our company. Your resignation has been accepted and in view of your special request we are pleased to enclose herewith cash Rs. 2,960/- representing two months' salary for notice Period."

Thereafter, the accounts were settled as under :

"Dr. Account No. 101 Date 12th January, 1979 Pay Mr. <NAME>.

Towards Notice period salary for two months Rupees Two thousand nine hundred and sixty only. Rs. 2,960/-.

Received the above amount.

Sd/-

<NAME>"

"Mr. <NAME> 24th February, 1979. Dear Sir,

We advise having credited your Saving Bank Account No. 4673 with <ORG> with Rs. 1669/- in full and final settlement of your salary and allowances account consequent to your resignation from our services as per details given below :

Salary for 12 days in Januar :

Rs. Rs. Basic 464-52 HRA 69-68 TA 38-71 ------- 572-91 Towards professional services rendered during 1978 1,068-39 Salary in lieu of 21 days annual leave 934-84 ---------- 2,576-14 A. Compulsory savings & Deductions : Provident Fund (Till 12th March, 1979) 286-50 Superannuation premium (Till 31st March, 1979) 360-00 Income-Tax 73-00 -------- 719-50 ----------- 1,856-64 B. Voluntary Savings & Expenses : Insurance Premium (Jan. & Feb.) 111-64 Co-operative Society 25-00 Sick Club 1-00 Profession-Tax 50-00 --------- 187-64 ----------- 1,669-00 ----------- Yours faithfully, For Needle Industries (India) Ltd., Sd/-. -------------------- Ref : Pors : CRR 26th February, 1979 Mr. C. R. Ramaswamy, 33, Mangaduswamy Iyer St., Nungambakkam, Madras-34 Dear Sir,

As may be observed from our letter of the 24th inst. Insurance premium has been deducted from the dues payable to you in respect of demands received from the <ORG> for the months of January and February, 1979. We shall be thankful if you will kindly make your own arrangements of remittance of premium from March, 1979 onwards.

4. Your subscription to <ORG> and sick club has been recovered only for the month of January.

5. For settlement of your dues from Co-operative society necessary application may please be made to the society direct. Please also forward your application for closure of Provident Fund Account early for being transmitted to the Trustees for further action.

6. Application for payment of Gratuity will be sent to your shortly for your completion and return.

Yours faithfully, for <ORG>, Sd/-

Company Secretary <ORG> for information......

"CASH VOUCHER Date : 28th Feb., 1979 Dr. Account No. Pay Mr. C. R. Ramaswamy towards Professional services rendered during 1978 Rupees One thousand and sixty eight and paise thirty nine only Rs. 1,068-39 Received the above amount Sd/- C. R. Ramaswamy." --------------- "Our Ref : Pers : C.R.R. 17th March, 1979 Mr. C. R. Ramaswamy, 33, Mangaduswamy Iyer St., Nungambakkam, Madras-34 Dear Sir,

In continuation of our letter PERS : C.R.R. dated 26th February, 1979 we forward herewith Form 'I' to enable you to apply for closure of your Gratuity Account, which please complete sign and return to us at an early date.

7. A sum of Rs. 10,837-50 is due to you in respect of Gratuity for seventeen years of service. Please forward to us a stamped receipt on the following lines :

"Received from <ORG> (India) Dated 10, Bishop Waller Avenue, South, Mylapore, Madras 600 006, a sum of Rs. 10,837-50 (Rupees Ten thousands eight hundred and thirty seven and paise fifty only) in full and final settlement of my Gratuity Account.

On receipt of the above from and the Receipt, we shall arrange for settlement.

Yours faithfully for <ORG>

Sd/-

Company Secretary <NAME>. expedite your Provident Fund closure appln. form.

"Our Ref : Pers : C.R.R. 22nd March, 1979 Mr. C. R. Ramaswamy, 33, Mangaduswamy Iyer St., Nungambakkam, Madras-34 Dear Sir, We write in continuation of our letter PERS : C.R.R. Dated 24th February, 1979.

As you have been granted an increment from 1st January, 1979, a sum of Rs. 210-56 in respect of salary and allowances, Notice period salary and salary in lieu of Annual leave becomes payable to you as under :

Payable Paid Balance Salary upto 12th January, 1979 at the revised rate of Rs. 1275/- p.m. Basic 493-55 HRA 74-03 TA 38-71 ------ 606-29 572-91 33-38 Notice Period Salary 3,132-50 2,960-00 172-50 Salary in lieu of 21 days annual leave 993-27 934-84 58-43 --------- --------- -------- 4,732-06 4,467-75 264-31 --------- --------- -------- Less : Provident Fund 17-75 Income-Tax 36-00 ------- 53-75 -------- 210-56 -------- This amount has been credited to your S.B. A/c. No. 4673 with <ORG>, Mylapore Branch. Yours faithfully, for <ORG> Sd/- -------------- Company Secretary." The Petitioner was called upon to file the required statement to enable the writ petitioner to file the income-tax return. This being so, 20th January, 1979, the second respondent wrote to the petitioner the following letter : Respected sir, 8. I wish to bring the following facts for your kind consideration and pray for justice. 9. I am employed in the Madras Office of the Company and have put in 17 years of unblemished service.

10. On the 10th instant, Mr. <NAME>, the Secretary of the Company sent for me and showed me an anonymous letter and accused me of having written it myself or that I had inspired someone else to write that letter. As far as I can remember the letter stated that Mr. <NAME> shouted at his subordinated including women without reason and also misbehaves with women.

11. Shocked at this baseless accusation I went to Mr. <NAME>'s house accompanied by my wife and tried my best to convince him that I was loyal to him and the <ORG> and having no grievance against him, denied that I wrote or inspired the writing of the said letter.

12. On the 12th instant, I was again sent for and after shouting at me and repeating the same accusation, informed that disciplinary action would be taken against me and that I would be dismissed and would lose my Provident Fund and Gratuity and forced me to give a letter of resignation. I pleaded for two months time so that I can find another job and then Mr. <NAME> said he would give me two months salary and this was paid in cash my resignation was accepted. I was dazed and stunned at his threats and shouting, and acted as stated above in fear.

13. In those circumstances I submit that the resignation was forced out of me under duress, and is invalid and not binding on me. The manner in which I have been treated is opposed to elementary justice and the accusation against me is absolutely baseless.

14. I have been advised not to take any precipitate action but to appeal to you for justice. I humbly implore you to consider what I have stated above, and request that my purported resignation be cancelled, and I be permitted to rejoin duty. Needless to say I shall pay back the two months salary which was forced on me.

Yours obediently, Finding that no action was taken on these representations, he preferred an appeal on 28th May, 1979 to the first respondent, purporting to be under S. 41 of the Act. It is necessary to note the nature of the appeal filed by the second respondent because very much turns upon this. After narrating the circumstances under which the letter of resignation came to be addressed, it is stated; in paragraph 5 thus :

"The Secretary exercised so much pressure and coercion that he compelled the appellant to then and there sign a letter of resignation which was dictated by the Secretary himself. As soon as the letter of resignation was forced upon the appellant the Secretary grabbed the piece of paper and took photostat copies of the same immediately inspite of the protest of the appellant that he was being coerced to do something which he had no desire to do. The Secretary immediately sent for a stenographer and dictated the letter of acceptance of the resignation then and there.

15. But for these threats and coercion that emanated from the appellant would never have resigned and it is submitted that the resignation letter issued by the appellant cannot be in law a resignation."

Then in paragraph 8 it is continued :

"It is submitted that the non-employment of the appellant has resulted only because of the coercion and threats exercised by the Secretary of the respondent company. The resignation letter issued by the appellant was not issued out of his own free will but on the contrary, was forced on him. Therefore, in law it cannot be said that the appellant had voluntarily terminated his services with the respondent."

Finally in paragraph 9 the following prayer is contained :

"It is therefore prayed that <ORG> may be pleased to declare that the non-employment of the appellant as a result of the forced resignation that was coerced out of him is unjustified and not for any reasonable cause."

Under Rule 9 of the rules made under the Act, an appeal ought to be filed within thirty days from the date of service of the order terminating the services with the employer. Of course, there is a proviso to the rule. That says :

"Provided that an appeal may be admitted after the said period of thirty days if the appellant satisfied the appellate authority that he had sufficient cause for not preferring the appeal within that period."

Having regard to this provision the second respondent preferred an interlocutory application for the condonation of the delay. That was opposed by the writ petitioner (employer). In paragraph 4 of the counter it was stated thus :

"The petitioner has approached <ORG> on the footing that there was an order of termination on 12th January, 1979. Even assuming without admitting that there was an order of termination on 12th January, 1979, the appeal under S. 41(2) should have been filed within 30 days of the order of termination and in the instant case by 11th February, 1979. It would appear that the petitioner has filed the appeal on 28th May, 1979, i.e., after a delay of more than three months. The respondent does not admit the reasons given by the appellant for the condonation of the delay and in any event they are neither genuine nor justified calling for the exercise of discretion by <ORG> in favour of the appellant."

In addition to the above, the counter traverses the merits of the case of the second respondent before the authority with which we are not concerned ourselves. However, it is necessary on my part to refer to those allegations by which the jurisdiction of the first respondent was questioned.

In paragraph 3 it was stated :

"It is no doubt true that the petitioner was working as an officer in the respondent Company under my direct supervision and control in <ORG> at Madras. The cessation of employment of the appellant was brought about by his letter of resignation dated 12th January, 1979 which was duly accepted on the same day by the respondent. There was therefore no termination of employment of the appellant by the respondent giving a cause of action for the appellant to invoke S. 41(2) of the Tamil Nadu Shops and Establishment Act ."

16. The appeal was taken up for hearing by the first respondent, the appellant authority constituted under the Act. A few witness were examined on the side of the appellant before it. At that stage this writ petition has come to be preferred for prohibition to prohibit the first respondent from proceeding further with the hearing of the appeal or incidental matters filed by the second respondent under S. 41 of the Act.

Mr. <NAME>, learned counsel for the petitioner wards off the preliminary objection as to the participation in the enquiry so as to disable him to raise the plea of jurisdiction by contending that there was nothing wrong in the petitioner seeking an adjudication on the condonation of delay, that if he were to succeed, that would be the end of the matter; but on the contrary, if he fails, the enquiry would take place by an authority, according to him, which has no jurisdiction. Therefore, the participation in the enquiry in regard to condonation of delay, cannot be put against the petitioner. In support of this reliance is placed on Sri <NAME> of Sri Shivur Mutt v. The Commr. H. R. & <NAME> (1952 I M.L.J. 552 at 578 and 579). The learned counsel also cites the passage from <ORG> 4th edition (Vol. 1) in paragraph 130. Moving on to merits, the petitioner contends, the <ORG> should certainly come to the rescue of the petitioner who seeks a prohibition when it is established on the facts alleged by the second respondent that he has no jurisdiction and more so, when the first respondent proposes to assume jurisdiction which, according to him, it has not in law. In support of this proposition <ORG>, v. Their workers and staff and others [1962-II L.L.J. 227] is cited.

17. As per the wording of S. 41 of the Act, no employer shall dispense with the services of a person 1) except for a reasonable cause; or 2) by way of misconduct, where there is no dispensation with the service by the petitioner, the employer, but the dispensation was brought about by the act of resignation, the court can have no jurisdiction. This is all the more so when in the appeal all that the authority could hold in under S. 41(2) there was no reasonable cause nor was the employee guilty of the misconduct alleged. Then again, it can merely uphold or set aside the order of termination and cannot exercise a discretion like the Courts established under the Industrial Law which are entrusted with powers under S. 11-A of the Industrial Disputes Act or the authorities constituted under the Catering and Establishment Act . What is required to be noted in this case is, if there is no termination by the employer the fact that the resignation was brought about by coercion is not a matter which falls within the jurisdiction of the authority, because the authority will then be assuming jurisdiction like that of a civil court as to whether the resignation was voluntary or not which falls totally outside the purview of S 41(2) of the Act. <CITATION> .) and other [1969-II L.L.J. 52] is cited for the proposition that this Court in a case arising under S. 41 of the Act took the view that when a workman failed to turn up, if his name was removed from the register or rolls, that would not amount to termination. <CITATION> [1970-II L.L.J. 211] it is contended that superannuation does not tantamount to premature termination. M/s. <ORG>, Bangalore v. K. Padmanabhan and another [1979-L.I.C. 224] is cited for the contention as to how the matter could be approached under S. 2-A of the Industrial Disputes Act. In conclusion Mr. <NAME> submits that unless and until the premature termination by the dispensation with the services of the employee is brought about by an act attributable to the employer, S. 41(2) cannot clothe the authority with jurisdiction.

18. Mr. <NAME>, learned counsel for the second respondent does not take any serious objection as to the maintainability of the writ petition. Nor does he say that the petitioner because it had participated in the enquiry is relation to the condonation of delay that would preclude the petitioner from filing the writ petition. It is his further submission that the averments in this connection came to be made in the counter affidavit only to show the lack of bona fides of the writ petitioner.

19. The learned counsel relies on <CITATION> (supra) and relies strongly upon certain observations made by the learned Judge there to the effect that if resignation was made as a cloak for dispensation with the services, the matter would be different. From this it is sought to be argued that in such a case the first respondent will have every jurisdiction. Then again, <ORG>, Bangalore v. K. Padmanabhan and another (supra) is also pressed into service. That was a case of resignation. On these rulings it is submitted that there is every jurisdiction for the authority to go into the question of resignation because, but for the coercion there was no resignation. Therefore, the act that is attributable to the management is coercion. Coercion removed, no resignation. If this contention is not upheld, this device would be adopted by every employer and the purpose of providing a quicker remedy under the Act would be defeated. Lastly it is submitted that the Act being a social welfare legislation made in furtherance of the employees working in Shops, Commercial Establishments, <ORG>, <ORG>, etc., a liberal interpretation must be pleaded having regard to the trend of law.

20. I will straightaway dispose of the contention urged last by Mr. <NAME>, the learned counsel for the second respondent. It is true, the Tamil Nadu Shops and Establishments Act , 1947 is an Act which provides for the regulation of conditions of work in shops, commercial establishments, restaurants, theatres and other establishments. It is undoubtedly a social welfare legislation. It does confer certain protections for the employees. One such protection is found under S. 41 of the Act to which I will make a detailed reference a little later. But we are here on the question of jurisdiction. Merely because it is a social welfare legislation, the <ORG> cannot do Violence to the explicit language and confer on the authority which, the legislature in its wisdom has not chosen to confer. That will as if the <ORG> is legislating. In so far as the appellate authority under S. 41 is a creature of the statute, that authority must trace its jurisdiction to the statute. Here what is the graveman of the charge ? The second respondent does admit the writing of the letter of resignation of 12th January, 1979. But, according to him, it was brought about by the coercion of the management. That is the reason why his prayer before the appellate authority which I have already extracted says "this Honourable <ORG> may be pleased to declare that the non-employment of the appellant as a result of the forced resignation that was coerced out of him is unjustified and not for any reasonable cause." If the factum of writing the letter of resignation is admitted, at once the case of the second respondent falls to the ground. As to how, I will easily demonstrate. A careful reading of sub-s. (1) will clearly show the dispensation of services of an employee must be attributable to the employer. That is because of the because of the language of the sub-section to the effect that no employer shall dispense with the services of a person employed." Therefore, the act must be attributable to the employer. In this case, what is the act that is attributed. Not that it brought about dispensation with the service, but it brought about the letter of resignation by coercion. In a case of resignation, therefore, there is no dispensation with the service at all. To say that because the management brought about the letter of resignation by coercion, it would tantamount to dispensing with services is an argument which passes my comprehension. Then again, if the appellate authority is conferred with the jurisdiction to enquire into the question as to whether the resignation was brought about by coercion and therefore it is not a voluntary abandonment, it would amount to assumption of jurisdiction like a Civil <ORG> enquiring into the question whether a particular contract is vitiated by anyone of the supervening elements spoken to under Ss. 15 to 22 of the Contract Act . The <ORG>, as stated above, being a creature of the statute, must trade its power or jurisdiction only to the specific provisions of the state, and it cannot assume role of a Civil <ORG>. Besides, what is it that the employee can complain ? (1) His services have come to be dispensed with without a reasonable cause; and (2) that he was not guilty of the misconduct alleged. There are the two aspects which alone could be enquired into under sub-s. (2) of S. 41 above extracted.

21. As to the scope of jurisdiction now, I will usefully refer to <CITATION> .) and others (supra), Justice <NAME> (as he then was) in dealing with a case where the employer after waiting for 1-1/2 months presumed that the employee had stopped away from service and removed his name from the list of employees, held that the order of removal of the employee cannot amount to dispensing with the services, but only making a record of the fact that the employees had failed to turn up and that they were no more in the employment and the <ORG> was under no obligation to wait indefinitely and it acted within its rights in removing the names of the employees from the list of employees. Therefore, according to the learned Judge, such a case would not fall under S. 41 of the Act. Consequently the order was quashed. This case definitely supports the petitioner to a greater extent.

22. Now I will move on to <CITATION> (supra) which is relied on by Mr. <NAME>. Justice <NAME> (as he then was) went into the question and held.

"The employee of the bank at the time of his joining service, gave his age and date of birth in his written application and also in a letter. The bank subsequently called upon all its employees to produce the school certificate or records in support of the age. The bank in regard to some staff like watch-man who has no educational background accepted the medical certificate and horoscope in support of the age. The concerned employee instead of producing the school records as required by the bank produced the medical certificate and horoscope in support of the age. The bank did not accept the medical certificate and horoscope. Subsequently the bank on the basis of the age given by him at the time of his appointment retired him from service in accordance with service rules.

23. The appeal Preferred by the employee under S. 41 of the Shop Act was allowed on the ground that bank gave no explanation for not accepting the medical certificate and horoscope produced by the employee and no notice was given as required under S. 41(1) of the Madras Shops and Establishments Act .

24. Allowing the writ petition preferred by the bank, held that the retirement of an, employee on reaching the age of superannuation according to service rules would not come within the scope of S. 41 . From the very nature of the Language employed in S. 41(1) only a premature termination of the services of an employee could be brought within the scope of that section, thereby meaning a premature termination as the termination of the services of an employee prior to the period fixed in a contract of service, if there is one, or a termination of service prior to the period fixed for retirement on reaching the age of superannuation prescribed either in a contract of service, if there is one, or in the rules or regulations governing such service. Consequently if there is a contract of service and the contract of service itself prescribes the period of service, the termination of service of the employee pursuant to the expiry of such period of employment could not fall within the scope of the S. 41(1) . Equally if there are terms in the contract of service or provisions in the rules applicable to the service providing for the retirement of the employee on reaching the age of superannuation, such a case also cannot fail within the scope of S. 41(2) . The dispensing with the service for a reasonable cause or the dispensing with the service on a charge of misconduct, both of them, contemplate a termination of service anterior and prior to the date on which the service would come to an end automatically either as a result of the terms on the terms on the contract of service or as a result of a rule application to the service in question.

25. It may happen in a particular case that the retirement was used by the employer as a cloak for dispensing with the services of an employee where the motive for dispensing with the service is something different. In the event different position may possibly result because no person will be allowed to evade the obligations imposed on him by law by having recourse to a cloak or guise under which he can take refuge in order escape from such an obligation."

In the course of the judgment, Justice <NAME> (as he then was) observed :

"It may happen in a particular case the retirement was used by the employer as a cloak for dispensing with the services of an employee where the motive for dispensing with the services is something different. In that event a different position may possibly result because no person will be allowed to evade the obligation imposed on him by law by having recourse to a cloak or guise under which he can take refuge in order to escape from such an obligation."

Certainly I do not mean to understand this observation as to hold that in a case of resignation albeit it being disputed as not voluntary but brought about by coercion, the learned Judge considered that an authority exercising jurisdiction under S. 41 of the Act could go into the question whether the resignation was brought about by the supervening circumstances by coercion. Therefore, this ruling does not help the respondent. Yet, one other case that is relied on is M/s. <ORG>, Bangalore v. <NAME> and another (supra). That was a case which arose under S. 2-A of the Industrial Disputes Act. No doubt, in that case the workman alleged that his tending of resignation was under threat. The question arose whether the dispute was referable to <ORG>. The <ORG> held thus :

"When an employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute relating to such discharge, dismissal, retrenchment or termination is required to be treated as an industrial dispute notwithstanding the fact that no other workman or any <ORG> has sponsored such a dispute.

If an employer secures resignation of any of his employees by force or against his will, in substance it amounts to the termination of the services of the concerned employee. It is to cover such cases of termination brought about in any form whatsoever the <ORG> has designedly used the words 'or otherwise terminates the services' in S. 2-A . The question whether in a given case the resignation was tendered voluntarily or secured under duress, is a question of fact. Therefore, if a workman complains that he has not tendered his resignation voluntarily but his resignation was secured under threat or coercion and by that process the termination of his services is brought about, such a dispute between an individual workman and the employer is squarely covered by the provisions of S. 2-A of such a case falls within the scope of the words 'otherwise terminates the services." In the present case the workman complained that his resignation was secured under threat and by that method his services were terminated by the employer. Therefore, <ORG> was competent to refer the dispute to <ORG>."

One important fact which cannot be lost sight of is, S. 2-A of the Industrial Disputes Act is comprehensively worded as to include 'or otherwise terminate the services of an individual workman". Normally in the context in which this phraseology occurs, it would mean ejusdom generis. Therefore, I find great difficulty in accepting the ratio of this ruling. With great respect, I beg to differ. Nonetheless, it is not for me to examine whether some other interpretation on the language of S. 2-A of the Industrial Disputes Act is permissible because no such language occurs in S. 41 of the present Act. Hence this ruling does not support the respondent.

26. For these reasons I conclude that the petitioner is entitled to succeed.

27. Turning to the conduct of the writ petitioner in participating in an enquiry in relation to the condonation of delay, what is the other conduct that is expected of the petitioner ? The appeal under S. 41 ought to have been filed as per Rule 9, within thirty days from the date of service of the order. In the instant case no order is served. The second respondent brings about his own termination and yet when he filed the appeal on 28th May, 1979, he preferred an application for condonation of delay. As rightly contended by the learned counsel for the petitioner if it were to succeed and see to it that the delay is not condoned, all the botheration will be over. So as a reasonable employer, he did oppose the condonation of delay. But on that score it cannot be said that the conduct is such as to preclude the questioning of jurisdiction of the appellate authority.

28. In this case no factual investigation is involved. On the facts as averred in the appeal, prohibition is sought. Therefore, on this score also prohibition cannot be denied. In relation to the conduct, it is worthwhile referring to <CITATION> (supra). <ORG> of this Court consisting of justice <NAME> and Justice <NAME>, held :

"Mr. <NAME>, learned counsel for <ORG>, raised the preliminary objection, that we should not issue a writ of prohibition as the petitioner has his ultimate remedy by way of suit if a scheme came to be framed by the proper authorities under the new Act and that the application is therefore premature. It must be remembered that we are dealing with a writ of prohibition and not certiorari. A writ of prohibition lies to prevent an inferior tribunal from exceeding its jurisdiction or even from exceeding its jurisdiction or even from assuming a jurisdiction which does not vest in it under law. It also lies if a provision of a statute is contravened by the tribunal or even it any principles of law are contravened. In deciding the question, whether a writ of prohibition should issue or not, the existence of an alternative remedy is, in our opinion, an irrelevant consideration when the complaint is that an inferior tribunal is exceeding its jurisdiction or is assuming a jurisdiction not vested in it by law. If the tribunal is permitted to exercise that jurisdiction which is objected to, if it exercises it wrongly, the mischief would be done, before the alternative remedy is availed of. It is unnecessary to insist upon a party complaining that he should first suffer and submit himself to the jurisdiction which is being wrongly exercised or is wrongly exceeded and then take advantage of the alternative remedy. In <ORG>, Volume IX, page 883 (Hailsham edition) the position is thus stated :

"The <ORG>, in deciding, whether or not to grant a writ of prohibition, will not be fettered by the fact that an alternative remedy exists to correct the absence or excess of jurisdiction or an appeal lies against such absence or excess. Similarly the fact that an appeal on the merits of the case has already failed, or that the party applying for prohibition has himself initiated the proceedings in the inferior <ORG>, is not material to the decision of the <ORG>, to grant or to refuse the writ."

Decisions in England, as is evident from this passage have gone even to the length of helping a person aggrieved notwithstanding the fact that he was the very person who first initiated the proceedings and invoked the jurisdiction of the inferior court. The objection raised by Mr. <NAME>, in our opinion, has no force and must be rejected as it is not supported by any authority. The analogy of the position in the case of a writ of certiorari does not apply here."

The passage from Halsbury's Laws of England referred to therein is presently stated in Halsbury's Laws of England, 4th edition in paragraph 130 thus :

"In deciding whether or not to grant an order of prohibition, the <ORG> will not be fettered by the fact that an alternative remedy exists to correct the absence or excess of jurisdiction, or that an appeal lies against the absence or excess. Similarly, the fact than an appeal has already failed on the merits of the case, or that the party applying for prohibition has himself initiated the proceedings in the inferior <ORG>, is not material to the decision of the <ORG> to grant or to refuse the order."

Applying the above ruling I hold that certainly it is not expected of the employer to suffer a decision by submitting to the jurisdiction and thereafter seek certiorari. So long as, as observed above, no factual investigation is involved, and on the admitted fact as appears in the appeal before the authority, when a prohibition is sought making out total lack of jurisdiction, this <ORG> cannot hesitate to issue such a writ. The position is very clearly so in the instant case. Consequently the petitioner succeeds and the rule nisi is made absolute.

29. There is some force in the contention of Mr. <NAME> that if jurisdiction were to be denied to the appellate authority in this case, frequent resort to this questionable method will be head by the employers and thereby deprive the employee of the benefit of the social welfare legislative measures. But it is a matter in which the <ORG> must bestow its urgent attention and it is worthwhile to remember that <ORG> are to interpret law on the plain language of the statute and not legislate. Thus though something could be said in favour of the contention of Mr. <NAME>, it cannot on that score be held that jurisdiction can be conferred on the appellate authority.

30. In the peculiar circumstances of the case, I make no order as to costs.


PETITIONER: GUPTA SUGAR WORKS Vs. RESPONDENT: STATE OF U.P. & ORS. DATE OF JUDGMENT26/10/1987 BENCH: SHETTY, K.J. (J) BENCH: SHETTY, K.J. (J) RAY, <NAME> (J) CITATION: 1987 AIR 2351 1988 SCR (1) 577 1987 SCC Supl. 476 JT 1987 (4) 154 1987 SCALE (2)824 CITATOR INFO : R 1990 SC1277 (55,57) ACT: U.P. Khandsari Sugar (Levy) order 1981: Levy order- Validity of Khandsari manufacturers required to surrender 50% of production-Fixation of price for levy khandsari sugar-Whether valid-Whether colourable exercise of power. The U.P. Khandsari Sugar (Levy) order, 1981 issued in exercise of powers under <CITATION> of the Essential Commodities Act, 1955, required Khandsari manufacturing units to surrender levy of 50% of the production by sulphitation units in the first process. The balance 50% with the total production by subsequent process was left free to be sold in the open market by the manufacturing units. The price fixed for the levy Khandsari sugar was Rs. 320 per quintal. HEADNOTE: % In a writ petition, the petitioner challenged the price fixation on the ground; that the State Government had not taken into consideration the guidelines in-built in sub- section 3C of <CITATION> of the Essential Commodities Act, 1955, that the levy order was unreasonable or excessive restriction on the fundamental rights guaranteed under Articles 19(1)(g) and 14 of the Constitution, and that the levy was a colourable exercise of the power as the State Government sold the levy sugar by public auction realising large profit. Dismissing the Writ Petition, ^ HELD: 1.1 The Court does not act like a Chartered Accountant nor acts like an Income-Tax officer. The Court is not concerned with any individual case of any particular problem. The Court only examines whether the price determined was with due regard to considerations provided by the statute, and whether extraneous matters have been excluded from determination. [580D- <CITATION> . AIR 1987 Sept. SC 180' at 1805. followed. 1.2 The primary consideration in the fixation of price would be 578 the interest of consumers rather than that of producers. [581F] Since the petitioners in the instant case, are allowed to sell freely at any rate they like, the remaining 50% of the Sugar (after excluding the 50% which they have to give for levy) as also the produce by the second and third process, the loss if any caused to the petitioners would be minimal. [581Gl <CITATION> .,  3 SCR 29, relied. 1.3 It is clear from the Preamble, that the primary object of the Essential Commodities Act , 1955 was to control production, supply, and distribution of essential commodities, and to make such commodities available at a reasonable price. The exercise provided under the Act was intended ultimately to serve the interest of consumers. It is fundamental in the entire scheme of the Act. But then, the interest of the industry as a whole cannot be left out. It is also required to be borne in mind. The levy price of sugar should ensure reasonable return to the industry. That is one of the guidelines provided under sub- section 3C of <CITATION> of the Act. But that does not mean that the interest of producers should outweigh the interest of consumers. It would be tilting the balance too much. [582C- F] 1.4 There is no colourable exercise of power. There was every justification for the sale by public auction. The petitioner and some other producers delivered inferior quality of Khandsari, which was found to be unacceptable to consumers at <ORG>. The State officers accordingly reported to the Government, which issued instructions to distribute the levy sugar liberally through permits for marriages and religious functions. The consumers, however, could not come forward. The Government then directed the disposal of levy sugar by public auction. It was not with a view to earn profit, although incidentally the Government made some profit. The levy sugar was brought to public sale only to prevent deterioration when the consumers refused to accept it. [583A-C] The Panipat Co-operative Sugar mills v. <ORG> [197312 SCR 860 and Anakapalle Coop. Agrl. & <CITATION> .,  2 SCR 882, referred to. 579 JUDGMENT:

ORIGINAL JURISDICTION: Writ Petition No. 7993 of 1982. (Under Article 32 of the Constitution of India). <NAME> and <NAME> for the Petitioner. <NAME> and Mrs. <NAME> for Respondent Nos. 1 and 3 to 5.

<NAME>, Additional Solicitor General, Mr. <NAME> and <NAME> for Respondent No. 2.

The Judgment of the Court was delivered by JAGANNATHA SHETTY, J. This is a petition under Article 32 of the Constitution. The petitioner is engaged in the manufacture of <ORG> sugar. The petitioner challenges the validity of the U.P. <ORG> Sugar (Levy) order, 1981 ("Levy order"). It was issued in exercise of powers under <CITATION> of the Essential Commodities Act, 1955 by virtue of delegation of power by <ORG> under Section 5 of the said Act. The levy order requires <ORG> manufacturing units to surrender levy of 50% of the production by sulphitation units in the first process. The balance 50% of that process with the total production by subsequent processes was left free to be sold in the open market by the manufacturing units. The price fixed for the levy <ORG> sugar was Rs. 320 per quintal .

The petitioner challenges the price fixation on the ground that <ORG> has not taken into consideration the guidelines in-built in sub- section 3C of <CITATION> of the Essential Commodities Act, 1955. The petitioner alleges that the levy order is unreasonable or excessive restriction on the fundamental rights guaranteed under Articles 19(1)(g) and 14 of the Constitution. lt is also the case of the petitioner that <ORG> sold the levy sugar by public auction realising large profit and the levy therefore, was a colourable exercise of the power.

Before considering these contentions, we may start with recent observation of o. Chinnappa Reddy, J. in <CITATION> . AIR 1987 Sept. SC 1802 at 1805: . .

"Price fixation is neither the function nor the forte of the <ORG>. We concern ourselves neither with the policy nor with the rates. But we do not totally deny ourselves the jurisdiction to inquire into the question, in appropriate proceedings, whether relevant considerations have gone in and irrelevant considerations kept out of the determination of the price. For example, if the legislature has decreed the pricing policy and prescribed the factors which should guide the determination of the price, we wilt, if necessary, inquire into the question whether the policy and the factors are present to the mind of the authorities specifying the price. But our examination will stop there. We will go no further. We will not deluge ourselves with more facts and figures. The assembling of the raw materials and the mechanics of the price fixation are the concern of the executive and we leave it to them. And, we will not revaluate the considerations even if the prices are demonstrably injurious to some manufacturers or producers. The <ORG> will, of course, examine if there is any hostile discrimination. That is a different 'cup of tea' altogether."

This will be the parametre and the limitation of inquiry by <ORG> whenever the price fixation of any essential commodity is called into question. The <ORG> does not act like a Chartered accountant nor acts like an Income- Tax officer. The <ORG> is not concerned with any individual case or any particular problem. The <ORG> only examines whether the price determined was with due regard to considerations provided by the statute. And whether extraneous matters have been excluded from determination.

In the present case even this limited inquiry appears to be unnecessary. The validity of the same levy order was the subject matter of decision of this Court in <CITATION> . l 1981] 3 SCR

29. There <NAME>, J. who spoke for the Bench observed: "It was next strongly contended that in fixation of the price of levy sugar the Government has not taken into consideration the fact that the petitioners would undergo a serious loss because the price would not be sufficient even to cover their manufacturing cost. We are, however, unable to agree with this argument. The policy of price control has for its dominant object equitable distribution and availability of the commodity at fair price so as to benefit the consumers. It is manifest that individual interest, however, precious they may be must yield to the larger interest of the community viz., in the instant case, the large body of the consumers of sugar. In fact, even if the petitioners have to bear some loss there can be no question of the restrictions imposed on the petitioners being unreasonable. <CITATION> . this Court observed as follows.

"If fair price is to be fixed leaving a reasonable margin of profit, there is never any question of infringment of fundamental right to carry on business by imposing reasonable restrictions.

In determining the reasonableness of a restriction imposed by law in the field of industry, trade or commerce, it has to be remembered that the mere fact that some of those who are engaged in these are alleging loss after the imposition of law will not render the law unreasonable."

(Emphasis supplied).

Similar view was taken by this Court in the case of Prag Ice and oil <CITATION> [ 1978] 3 SCR 293 where the Court speaking through <NAME>, C.J. Observed as follows:

"It has also to be remembered that the object is to secure equitable distribution and availability at fair price so that it is the interest of the consumer and not of the producer which is the determining factor in applying any objective tests at any particular time."

In this view of the matter, the primary consideration in the fixation of price would be the interest of consumers rather than that of the producers. Moreover, we think that since the petitioners are allowed to sell freely at any rate they like the remaining 50% of the sugar (after excluding the 50% which they have to give for levy) as also the produce by the second and third process, the loss if any caused to the petitioners would be minimal.

Mr. <NAME> learned counsel for the petitioner however, urged that the above case did not lay down the correct law. He said that the primary consideration in the fixation of price would not be the interest of consumers, but to ensure a reasonable return to producers. That H according to him the law laid down by this Court in (i) <CITATION> [19731 2 SCR 860 and Anakapalle Coop. Agrl. & <CITATION> ., [ 1973] 2 SCR 882. Since these two decisions have not been referred to in the <ORG> case we should refer this case to a larger bench for decision.

We do not think that the counsel is justified in his submission. We do not find any diversity of views taken in the aforesaid cases. All those cases concerned with the price fixation of the essential commodity under the essential Commodities Act . The primary object of the Act was to control the production supply and distribution of essential commodities and to make such commodities available at a reasonable price. The Preamble of the Act makes it clear. It reads: " An Act to provide in the interest of the general public, for the control of the production, supply and distribution of, and trade and commerce in certain commodities."

The exercise provided under the Act was intended ultimately to serve the interest of consumers. It is fundamental in the entire scheme of the Act. But then, the interest of the industry as a whole cannot be left out. It is also required to be borne in mind. The levy price of sugar should ensure reasonable return to the industry. That is one of the guidelines provided under sub-section 3C of Section 3 of the Essential Commodities Act . But that does not mean that the interest of producers should outweigh the interest of consumers. It would be tilting the balance too much. Such a contention in our opinion, also runs afoul of our earlier analysis.

It is true that there is no express reference to <ORG> and <ORG> in the judgment in <ORG>. But the judgment need not be a digest of cases. It need not be written like a thesis. The decision in <ORG> may be brief, but not less predictable on the principles of <ORG> and <ORG>. There this Court found the levy price reasonable even from the point of view of the industry. This Court took into consideration the liberty reserved to manufacturers to sell freely 50% of the Sugar manufactured and also 100% of the produce by 2nd and 3rd processes. This Court was of opinion that by such a free sale the industry could get reasonable return. We agree with this conclusion and see no reason for reconsideration.

As to the grievance of the petitioner that the <ORG> has made profit by the sale of Khandsari sugar at public auction, we perused the counter affidavit of the <ORG>. We do not find any colourable exercise of the power. There was every justification for the sale by public auction. It has been stated that the petitioner and some other producers delivered inferior quality of Khandsari. That was found to be unacceptable to consumers at Fair Price Shops. The <ORG> officers accordingly reported to the Government. The Government issued instructions to distribute the levy sugar liberally through permits for marriages and religious functions. The consumers, however, could not come forward. The Government then directed the disposal of levy sugar by public auction. It was not with a view to earn profit although incidentally the Government made some profit. The levy sugar was brought to public sale only to prevent deterioration when the consumers refused to accept it. We have no reason to doubt the explanation given by the <ORG> Government.

In the result, the Writ Petition fails and is dismissed with costs.

N.P.V. Petition dismissed.