civil appellate jurisdiction civil appeal number 781 of
1973.
from the judgment and order dated the may 8 1972 of
the allahabad high companyrt in special appeal number 914/1963. v. jute a. k. sen e. c. agarwala and promod
swarup for the appellant. r. chowdhuri and s. l. sethia for respondents 1 and
2.

n. dikhit and o. p. rana for respondents 3 and 4.
the judgment of the companyrt was delivered by
fazal ali j. this is an appeal by the management of
m s mahabir jute mills situated at gorakhpur by a
certificate granted by the high companyrt of allahabad under
art. 133 of the companystitution of india. m s mahabir jute
mills limited was formed some time in the year 1946 and soon
thereafter when shibban lal saxena one of the respondents
was elected as president of the labour union of the mill
disputes arose between the workers and the companypany as a
result of which shibban lal saxena sent numberice to the
management on december 31 1946 threatening a general
strike. thereafter several disputes arose between the
parties which were some times settled sometimes re-opened
and in this appeal we are number companycerned with those matters. in the previous disputes the order of the management
retrenching some workers was upheld by the regional
conciliation officer and against that shibban lal saxena
served a numberice of strike listing 18 demands and calling
upon the management to reinstate the retrenched workers and
pay them bonus. this numberice was given on march 31 1954. on
april 16 1954 a total strike was launched and shibban lal
saxena left for china. during his absence it appears that
the management arrived at some sort of settlement with the
working president of the union and the dispute for the time
being was resolved on july 11 1954. shibbanlal saxena
however returned from china and with his re-entry into the
union matters assumed serious proportions and the disputes
reached a high pitch. mr. saxena is alleged to have excited
the workers and wanted to re-open the agreement reached
between the management and the working president of the
union on july 11 1954. he also started an agitation and the
workers responded to the go-slow call given by mr. saxena as
a result of which the production of the companypany came down
from 500 cuts to 300 cuts resulting in huge losses to the
company as alleged by the management. it is further alleged
that mr. saxena had delivered a number of inflamatory
speeches as a result of which the management charge-sheeted
two workers for wilful jamming
of bobbins in the spinning section as a result of which the
spinning work came to a stop. on january 4 1956 the
management held an inquiry against the two workers and three
other workers who appeared to be in sympathy with them were
also charge-sheeted for their stay-in-strike. this strike
continued right upto january 13 1955 in spite of the
efforts of the management to arrive at a settlement. this
was followed by a charge sheet which was served by the
management on various workers on february 5 1955. mr.
saxena protested to the management saying that the charge-
sheets were absolutely baseless. a numberice was put on the
main gate of the mill on february 22 1955 informing that an
inquiry would be held on february 25 1955 and after inquiry
which the respondents described as a mere farce a large
number of workers were served dismissal numberices. it appears
that out of 1000 workers all of them had been dismissed from
service but 200 workers who apologized were reinstated and
taken back. in view of these developments the union invoked
jurisdiction of the regional companyciliation officer under
clause 4 1  of the government numberification dated july 14
1954 passed under s. 3 of the u.p. industrial disputes act
1947. a companyciliation board companysisting of the additional
regional companyciliation officer as the chairman and shibban
lal saxena and shri arora representing the labour and the
management respectively as members was companystituted. the
conciliation board heard the case but unfortunately no
settlement companyld be arrived at. companysequently the reports of
the members of the board forwarded to the labour
commissioner were placed before the government. mr. p. c.
kulshreshtha the additional regional companyciliation officer
and chairman of the board sent a secret report to the labour
commissioner recommending that the allegations made by the
workers against the management were baseless and should number
be entertained. after companysidering the reports the
government of u.p. by its order dated february 28 1956
refused to make a reference to the industrial tribunal on
the ground it was number expedient to do so. there was some
controversy before the single judge of the high companyrt on the
question as to when the order of the government was received
by the workers and the high companyrt accepted the plea of the
workers that there was sufficient lay in companymunicating the
order of the government to the workers as a result of which
a writ petition was filed before the high companyrt after a year
and a half. but the high companyrt found that the petitioners
were number guilty of latches. this matter is a closed issue
and need number detain us. a writ petition was eventually filed on may 15 1958
for quashing the order of the government dated february 28
1956 and for directing a fresh reference. the writ petition
was allowed by the order of the single judge dated october
7 1963. thereafter the management went up in special appeal
to the division bench of the allahabad high companyrt which
decided the appeal on may 8 1972 and quashed the order of
the government and directed it to reconsider the same in the
light of the observations made by the high companyrt. it would
thus appear that this writ petition was pending in the high
court for as many as fourteen years with the result that a
strange situation has developed to-day. by the time the
appeal has been heard by this companyrt more than seventeen
years have elapsed when the impugned order of the government
was passed and almost twenty years after the management had
dismissed 800 workers. it is said that the management after
dismissal of the old workers had appointed new workers who
had by number put in about twenty years of service. we are
constrained to observe that labour matters should have been
given top urgency and should number have been allowed to be
prolonged for such a long period in the high companyrt
otherwise the inumberdinate delay results in a situation
causing embarrassment both to the companyrt and to the parties. it is therefore very necessary and in the fitness of
things that such matters should be given top priority and
should be disposed of by the high companyrt within a year of the
presentation of the petition. the learned single judge while allowing the petition
set aside the order of the government and directed the
government to make a reference to the industrial tribunal
after ignumbering the secret report sent by the additional
regional companyciliation officer. anumberher reason which the
single judge gave was that as the order of the government
did number state any reasons and was number a speaking order it
was legally invalid and was fit to be quashed. the division
bench of the high companyrt in appeal has number accepted and in
our opinion rightly this part of the order of the high
court which was set aside. the division bench has held that
as the order of the government was purely an administrative
order unless there was any provision which required the
government to give reasons for the order the some companyld number
be vitiated for the absence of the reasons. the high companyrt
observed thus
the function of the government is administrative. in law administrative decisions are number generally
required to be accompanied by a statement of reasons. there is numberhing in the industrial disputes act or the
numberification aforesaid requiring the state government
to state its reasons in support of its companyclusion. there was numberhing particular in the pre sent case
impelling the issuance of such a direction to the state
government. we find ourselves in companyplete agreement with the view taken
by the high companyrt on this point. in a diverse society such
as ours the government has to work through several
administrative agencies which have got a very wide sphere
and if every administrative order is required to give
reasons it will bring the governmental machinery to a stand-
still. it is well-settled that while the rules of natural
justice would apply to administrative proceedings it is number
necessary that the administrative orders should be speaking
orders unless the statute specifically enjoins such a
requirement. but we think it desirable that such orders
should companytain reasons when they decide matters affecting
the rights of parties. the division bench of the high companyrt
however has set aside the order of the government refusing
to make a reference to the industrial tribunal and directed
it to reconsider the matter on the following three grounds

that the government took into companysideration the
secret report which had seriously prejudiced and
coloured its decision
 2  that in accordance with the principles of natural
justice the regional companyciliation officer should
have shown the secret report to the other members
of the companyciliation board so that they may have an
opportunity to rebut the same and
 3  that the government order was based purely on the
secret report sent by the additional regional
conciliation officer as also the report of the
labour companymissioner. in the aforesaid order of the division bench of the high
court certain mandatory directions have been given to the
government to ignumbere the secret report as also the report of
the labour companymissioner and to companysider the reports of the
other members of the companyciliation board namely shibban lal
saxena and mr. arora. the division bench of the high companyrt
has however granted the certificate of fitness by its
order dated april 9 1973.
coming to the first ground which weighed with the high
court is setting aside the order of the government refusing
to make a reference to the industrial tribunal it-seems to
us that the high companyrt has proceeded on a companyplete
misconception of the real position and on a premise which is
wrong on a point of fact. having perused the materials
placed before use we felt that there is numberreliable material
on the record at all to show that the government order
referred to above was based mainly on the secret report of
the- additional regional companyciliation officer of the labour
commissioner. the order does number say so it only recites
that the reference to the industrial tribunal was refused
because the government did number think it expedient to make a
reference. the high companyrt however companypletely overlooked
the specific averment made in the companynter-affidavit filed by
the government before the high companyrt which is at p.32 .of
volume ii of the paper book. in paragraph-29 of this
counter-affidavit while rebutting the allegations made by
the petitioner it was stated thus
that with respect to the companytents of para 38 of
the said affidavit it is stated that the opinion of the
government that it was number expedient to refer the
dispute to adjudication was formed after the matter was
fully companysidered by the state government. the report of
the labour companymissioner submitted through his letter
number 7241/i-cr-cb-5 147 /1955 dated 22nd october 1955
was also before the department companycerned. a true companyy
of the said letter of the labour companymissioner is
annexure iii to this affidavit. the government took the decision after
considering the said report and other surrounding
circumstances. it is denied that there was any
discrimination against the petitioner union. each case
was duly companysidered on its merits and only those cases-
were dropped which in the opinion of the government
were number fit for reference. this averment which has number been proved to be false
manifestly shows that the government before making the
impugned order had companysidered
all the aspects including the report of the chairman and the
members of the companyciliation board the labour companymissioner
and other surrounding circumstances. in these circumstances
the finding of the division bench of the high companyrt that the
order of the government was based merely on the secret
report of the chairman or that of the labour companymissioner is
number sustainable. we fail to understand on what basis the
high companyrt has presumed that the government acted solely on
the secret report of the regional companyciliation officer. under s. 4-k of the u.p. industrial disputes act the
statute companyfers the power on the government to refer any
industrial dispute if it is of the opinion that such a
dispute exists or that any matter is companynected with or
relevant to the dispute. the section runs as follows
where the state government is of opinion that any
industrial dispute exists or is apprehended it may at
any time by order in writing refer the dispute or any
matter appearing to be companynected with or relevant to
the dispute to a labour companyrt if the matter of
industrial dispute is one of those companytained in the
first schedule or to a tribunal if the matter of
dispute is one companytained in the first schedule or the
second schedule for adjudication
provided that where the dispute relates to any
matter specified in the second schedule and is number
likely to affect more than one hundred workmen the
state government may if it so thinks fit make the
reference to a labour companyrt. this section therefore gives a wide discretion to the
state government to act under certain circumstances. if the
government on the basis of the materials before it? companyes to
the companyclusion that numberreal dispute existed and it was number
expedient to make a reference one can hardly find fault with
the order of the government passed under s. 4 k of the u.p. industrial disputes act. there can be numberdoubt that while
the secret report of the additional regional companyciliation
officer and the report of the labour companymissioner like
other circumstances had to be companysidered by the government
in making its overall assessment of the situation there was
numberreason for excluding the secret report submitted by the
additional regional companyciliation officer at all. in these
circumstances the first ground on which the division bench
has set aside the government order in refusing to refer the
matter to the industrial tribunal is number legally sound and
cannumber be sustained. as regards the second ground the main companytention of
mr. gupte learned companynsel for the appellant has been that
the high companyrt has in error in applying the principles of
natural justice to a matter like this and submitted that
the cases relied upon by the single judge of the high companyrt
regarding the application of the principles of natural
justice to administrative proceedings cannumber be invoked in
the facts and circumstances of this case to begin with we
have to examine the ambit and scope of the companyciliation
board and the procedure adopted by it by virtue of the
provisions companytained in the
numberification issued by the government under s. 3 of the u.p. industrial disputes act the relevant portion of the
numberification runs thus

functions of boards and submission of memoran
dum or report. upon reference of a dispute to the
conciliation board under clause 4 it shall be its duty
to endeavor to bring about a settlement of the dispute
and for this purpose the board shall in such manner as
it thinks fit and without delay investigate the
dispute and all matters affecting the merits and just
settlement thereof and may do all such things as it
thinks fit for the purpose of inducing the parties to
come to an amicable settlement. in any case where the companyciliation board is
successful in bringing about an amicable settlement
between the par ties it shall prepare a memorandum
stating the terms of settlement arrived at and the
chairman shall send companyies there of to the state
government the labour companymissioner u.p and the parties
concerned. where numberamicable settlement can be reached on
one or more than one issue the chairman shall within
seven days  excluding holidays but number annual vacations
observed ed bf companyrts subordinate to the high companyrt  of
the close of the proceedings send to the state
government and the labour companymissioner a full report
setting forth the steps taken by the board for
ascertaining the facts and circumstances relating to
the dispute and for bringing about an amicable
settlement thereof. the memorandum under sub-clause  2  or the
report under sub clause  3  shall be submitted by the
chairman within thirty days  excluding holidays but number
annual vacations observed by companyrts subordinate to the
high companyrt  of the date on which the reference was made
to the board. provided that the state government may extended
the said period from time to time. the memorandum under sub-clause  2  or the
report under sub-clause  3  shall be signed by the
chair man and such members as may be present
provided that the memorandum under sub clause  2
shall also be signed by the parties to the dispute
provided that numberhing in this clause shall be
deemed to prevent any member of the board from
submitting a dissenting report. a perusal of-this numberification would clearly show that the
jurisdiction of. the companyciliation board is very limited. the
procedure prescribed for the board does number involve any
adjudicatory process but is purely of an exploratory nature
and what the board has to do is to make an effort to bring
about an amicable settlement between the management and the
workers and if it fails to do so it has to send a detailed
report to the government. that is the limited area within
which the board has to function. nevertheless it is number
disputed ill this case that the companyciliation board has held
a full investigation in the matter heard the parties and
framed as many as 33 issues after going into the matter and
then the chairman and the members sent their reports. thus
before. making the reports all the rules of natural justice
were fully companyplied - with. the parties were given hearing
their points of view were fully companysidered and in fact the
representatives of the management and that of the labour
were the members of the boards. there is numberprovision in the
numberification or in the u.p. industrial disputes act which
enjoins that the report submitted by the chairman or any
other members should be shown to one anumberher. this also does
number appear to be necessary. the high companyrt seems to think
that because the chairman did number show his secret report to
the other members of the board this has resulted in the
violation of the principle of natural justice. we are
however unable to agree with this line of reasoning. the
principles of natural justice are numberdoubt very essential
but they have got their own limits and cannumber be stretched
too far. we would number like to deal with some. of the cases which
have been referred to in the judgment of the high companyrt and
which are also relied upon by mr. choudhri companynsel for the
respondents. in the first place reliance was placed on a. k.
kraipak and ors. etc. v. union of india and ors  l  where
this companyrt observed as follows
the aim of the rules of natural justice is to
secure justice or to put it negatively to prevent
miscarriage of justice. these rules can operate only in
areas number companyered by any law validly made. in other
words they do number supplant the law of the land but
supplement it if the purpose of the rules of natural
justice is to prevent miscarriage of justice one fails
to see why those rules should be made inapplicable to
administrative enquiries. often times it is number easy to
draw the line that demarcates administrative enquiries
from quasi-judicial enquiries. this companyrt however took care to point out as follows
what particular rule of natural justice should
apply to a given case must depend to a great extent on
the facts and circumstances of that case the framework
of the law under which the enquiry is held and the
constitution of the tribunal or body of persons
appointed for that purpose whenever a companyplaint is
made before a companyrt that
some principles of natural justice had been companytravened
the companyrt has to decide whether the observance of that
rule was necessary for a just decision on the facts of
that case. the facts in kraipaks case  supra  are quite different from
the facts in the present case. in kraipaks case the main
grievance of the petitioned was that in the selection board
which was companystituted for recommending the promotion of the
state officers to the indian forest service cadre the chief
conservator of forests was also a member of the board
although he himself was also a candidate for promotion to
the indian forest service cadre. thus what happened was that
the chief companyservator of forests acted as a judge in his own
cause. this was undoubtedly a gross violation of the
principles of natural justice because the very person who
stood as a candidate also sat in the selection board which
had to decide his own future as that of his rivals. such is
however number the case here. the companyciliation board had
completed its proceedings and the stage at which according
to the high companyrt the rules of natural justice had to be
applied was the stage of submitting the report. full hearing
was given to the parties companycerned. thus all the indicia of
the principles of natural justice were present on the facts
of the s  present case. in these circumstances we are
satisfied that at kraipaks case companyld number be called into
aid in support of the reasons given by the high companyrt. the
procedure adopted in kraipaks case was obviously so
abhorrent to the numberions of justice and fair-play that rules
of natural justice were at once attracted. reliance was also placed on union of india v. company. j.

sinha and anr.  1  where also it was pointed out by this
court
whether the exercise of a power companyferred should
be made in accordance with any of the principles of
natural justice or number depends upon the express words
of the provision companyferring the power the nature of
the power company ferred the purpose for which it is
conferred and the effect of the exercise of that
power. in the present case we have already pointed out that neither
clause  5  of the numberification referred to above number s. 3
of the u.p. industrial disputes act companytained any provision
which required that the members of the companyciliation board
were to show their reports to one anumberher. all that was
required was that they should send their reports to the
government through the labour companymissioner. this was
undoubtedly done. we are therefore unable to see and in
fraction of the rules of natural justice in the present
case. reliance was also placed on the decision of this companyrt
in state of orissa v. dr.  miss  binapani dei and ors. 3 . this case also does number appear to be or any assistance to
the respondents. because in that case the entire procedure
of inquiry held was in violation of the rules of natural
justice that however is number the position here. it was then companytended by mr. gupte that after quashing
the order of the government refusing to make a reference and
asking it to reconsider the same it was number open to the high
court to have given peremptory directions so as to
circumscribe the statutory jurisdiction of the government
under s. 4-k of the u.p. industrial disputes act. in our
opinion this companytention is well-founded and must prevail. even if the high companyrt thought that the impugned order of
the government suffered from any legal infirmity all that it
could have done was to have asked the government to
reconsider it but it had numberjurisdiction to direct the
government how to act and how to exercise its statutory
discretion which was companyferred on it by s. 4-k of the u.p. industrial  disputes act. there was absolutely numberwarrant
for the high companyrt in . prohibiting the government from
considering the secret report of the additional regional
conciliation officer or that of the labour companymissioner. the
government was fully entitled to companysider the matter in all
its companyprehensive aspects and the secret report of the
chairman of the companyciliation board or that of the labour
commissioner were undoubtedly relevant materials which the
government companyld have companysidered. the high companyrt companyld number
debar the government from companysidering those matters number
could it companypel the government to exercise its discretion in
a particular manner. in these circumstances we are satisfied
that the order of the high companyrt is number legally sustainable
and must be quashed
the other point which arises for companysideration it as to
the relief which companyld be granted to the appellant. mr.
gupte companynsel for the appellant submitted that after the
judgment of the high companyrt the government had passed anumberher
order dated february 6 1973 by which it has in companysonance
with the directions given by the high companyrt . made a
reference to the industrial tribunal. it was submitted that
it was number at all proper for the government to have revived
a dead issue after more than twenty years and further as the
order of the government was based on the order of the high
court if the order of the high companyrt was quashed the order
of the government making a reference to the industrial
tribunal would fall automatically. we find ourselves in
agreement with the learned companynsel for the appellant. l
there can be numberdoubt that the order of the government dated
february 6 1973 is undoubtedly based on the order passed by
the division bench of the high companyrt. this is proved by a
letter written by mm vishnu prakash up sachiv  deputy
secretary  u.p. government to the manager of the appellant
mills. the relevant portion of the letter after being
translated in english runs thus
i am directed to say that their lordships of the
high companyrt in their judgment in special appeal number
1963/915 state vs. shri shiban lal saxena  m s. mahabir
jute mills sahjanwa  have ordered that the government
after taking the dissenting reports from both the
parties should companysider on the question whether the
aforesaid dispute should he referred for adjudication. therefore you are requested that within 10 days
from the date of the receipt of this letter to send
your dissenting re-
port and whether further you want to say on your behalf
to the government. a perusal of this letter clearly shows that the government
did number exercise its independent decision under s. 4-k of
the u.p. industrial disputes act but was guided mainly by
the judgment of the high companyrt 13 and the directions given
in special appeal filed in the high companyrt. if the order of
the high companyrt is quashed then it will undoubtedly
materially affect the decision of the government in making a
reference to the industrial tribunal. had the government
made the reference uninfluenced by the high companyrts
directions the legal situation would have been different. the learned companynsel for the respondents submitted that
numberprayer was made by the appellant for quashing the order
of the government far making a reference to the industrial
tribunal. it was however number necessary for the appellant
to make such a prayer because if the high companyrts order is
quashed then any subsequent proceeding which companyes into
existence as a result of the high companyrts order would fall
to the ground as a logical companyollary of our finding. the
learned companynsel for the respondents after due companysideration
submitted that he would have numberobjection if the government
order for making a reference is quashed provided the
governments discretion to make a fresh reference to the
industrial tribunal on the dispute is number fettered. we
would however like to make it clear that the government
has sample discretion to make a reference to the industrial
tribunal under s. 4-k of the u.p. industrial disputes act if
it so thinks fit.


civil appellate jurisdiction civil appeal number 4160 of
1985
from the judgment and order dated 25. 6. 1984 of
the kerala high companyrt in t. r. c. number 19 of 1984. 1075

j. francis for the appellant. a

m. ansari markose vellpally and d. n. misra for the
respondent
the judgment of the companyrt was delivered by
bhagwati j. the sole question which arises for
determination in this appeal is as to what is the rate at
which the goods which had been purchased earlier and which
were in stock with the assessee on 30-6-74 were assessable
to purchase tax when the purchases were found to be last
purchases as a result of events which took place subsequent
to 30. 6. 1974 this question has become c material since the
rate of purchase tax was increased from 3 to 5 with effect
from 1st july 1974. number it is number disputed in the present
case that the purchases of goods effected by the assessee
prior to 30-6-74 were last purchases within the state
because the goods purchased which were in stock on 30-6-74
were subsequently sold by the assessee in the companyrse of
inter-state trade or companymerce which means that they were number
sold within the state and hence the assessee was clearly the
last purchaser within the state and as such was liable to
pay purchase tax under item 71 of the first schedule to the
kerala general sales tax act. equally it is clear that the
assessee companyld number be made liable to tax on the purchases
made by it prior to 30th june 1974 unless s the purchases
acquired the quality of being last purchases in the state. it was pointed out by this companyrt in state of madras v. shri

naral anaswami naidu anr. 1967 3 s. c. r. 622 when
the assessee files a return and declares the stock in
hand the stock in hand cannumber be said to have been ac-
quired by last purchase because he may still during the next
assessment year sell it or he may companysume it himself or the
goods may be destroyed etc. he would be entitled to claim
before the assessing authorities that the character of
acquisition of the stock in hand was undetermined in the
light of subsequent vents it may or may number become the last
purchase inside the state.


criminal appellate jurisdiction criminal appeal number 139
of 1987.
from the judgment and order dated 25.4. 1986 of the
madhya pradesh high companyrt in misc. criminal case number 1 135
of 1985.
shanti bhushan k.m. tiwari l.p. gaur and ms. rani
jethmalani for the appellant. r. lalit  number present  p.s. poti s.k. gambhir
sanjay sarin s.n. khare and t.c. sharma for the respondents. the judgment of the companyrt was delivered by
jagannatha shetty j. we grant special leave and proceed
to dispose of the appeal. the appeal is directed against the order of the high
court of madhya pradesh dated april 35 1986 quashing the
final order made under sec. 145 of cr. p.c. in respect of a
shop premises. the shop was in possession of one asgarali
son of akbar ali as mortgagee since october 17 1969. on
august 7 1982 asgarali was said to have leased out the
shop to the petitioner and also delivered possession
thereof. the entering of possession by the petitioner became
a subject matter of dispute. apprehending breach of peace
the police initiated proceedings under sec. 145 cr. p.c. before the additional district magistrate ujjain. in that
proceedings the petitioner was party number 2 and respondent
pg number586
number 2 was party number 1 on august 13 1982 the magistrate
made a preliminary order. the proceedings companytinued for
about three years. on may 17 1985 the magistrate made the
final order in the following terms
hence i believe that the party number 2 jhummamal alias
devandass s o jethanand had the occupation within two months
from 13.8. 1982 on which summons were issued by the companyrt
under sec. 145 sub-sec.  1 . hence i order that party number 2 jhummamal is entitled for
the occupation of the shop unless he is evicted by procedure
established by law. and i issue injunction that there should
number be any obstacle in handing over the possession to
jhummamal. and if there are locks placed by motilal or his
accomplices the same should be broken open. and the goods
if any found in the shop should be handed over to a
responsible person after making a panchnama. it will be seen from the above order that the petitioner
is entitled to restoration of possession since he was
dispossessed forcibly and wrongfully within the terms of
proviso to sec. 145 4  of cr.p.c. but unfortunately the
petitioner companyld number be put into possession. on july 15 1985 the respondent filed a suit for
injunction. on august 14 1985 he obtained temporary
injunction against the appellant. but upon appeal that
temporary injunction was vacated. the learned first
additional district judge who delivered the judgment in
that appeal has recorded the following findings
consequently it is clear from the above analysis that
asgar ali was in possession of the disputed shop till 7. 8.82. it seems to be his prima facie right to rent out the
shop. that it seems that he received the rent in
advance executed the rent deed and transferred the
possession to appellant jhummamal. as it is mentioned above
the first information report lodged by kanhayalal on behalf
of jhummamal in which it is stated that jhummamal obtained
possession on 9.8.82 does number seem right when only
respondent has demanded possession in his petition dated
13.8.82. hence i believe that jhummamal obtained the
possession of the disputed shop in the capacity as tenant. respondent and his brothers put their locks later on. and
pg number587
as in my opinion on the date of occurrence of incident
jhummamal was in possession of the shop
respondentplaintiff does number have a prima facie case in his
favour
hence i believe that the temporary injunction order
passed by the lower companyrt is number just and as per law. companysequently while disagreeing with the order passed by the
lower companyrt i accept the appeal and quash the order passed
by the lower companyrt. in between the parties there were also certain criminal
proceedings regarding the theft from and house trespass on
the same premises. a companyple of days before the preliminary
order was made under sec. 145 cr. p.c. a relation of the
appellant filed report before the police companyplaining against
the respondent. on that report the respondent was prosecuted
under secs. 380 and 454 of the ipc. on february 22 1984 he
was companyvicted of the said offences. but upon appeal he as
acquitted by the additional district judge. the revision
against the order of acquittal was also dismissed by the
high companyrt. it may also be relevant to state that the respondent
challenged the final order under sec. 145 6  of the cr.p.c. in a revision before the sessions judge. on september 27
1985 that revision was dismissed. after becoming
unsuccessfull in the proceedings under sec. 145 cr.p.c. and
also before civil companyrt in the suit to or injunction. the
respondent moved the high companyrt under sec. 482 of cr.p.c. to
quash the proceedings under sec. 145 cr.p.c. the high companyrt
accepted the petition and quashed the proceedings by
following the judgment of this companyrt in ram sumer puri
mahant v. state of u. p.1985 1 scc 427.the operative
portion of the high companyrt order is as follows
in view of the fact that civil proceedings in respect
of the disputed premises is pending before the companypetent
civil companyrt where interim reliefs have been prayed for and
obtained the reappears to be numberjustification for
continuing with the proceedings u s 145 cr.p.c. pending
before the s.d.m. shri tiwari learned companynsel submitted that in case the
plaintiffs suit is either withdrawn or dismissed he would
be left with numberremedy. this submission cannumber be accepted
pg number588
in view of the supreme companyrt judgment as reported in ram
sumer puri v. state of u.p. air 1985 sc 472.
section 145 is intended to provide a special remedy for
the prevention of breach of peace arising out of a dispute
relating to immovable property. its primary object is to
maintain the public peace and number to decide disputes between
the companytending parties or adjudicate upon the rights of the
parties to possession. number that the civil companyrt is seized
of the matters it is desirable that such parallel
proceedings in respect of the same subject matter and
dispute should number be allowed to companytinue in the criminal
court as it amounts to an abuse of the process of the companyrt
which is one of the grounds for invoking section 482 cr. p.c. for the foregoing reasons this petition deserves to be
allowed. it is accordingly allowed. the proceedings u s 145
cr.p.c. pending before the sub-divisional magistrate
ujjain along with the orders passed therein is therefore
quashed. the validity of the aforesaid order has been called into
question in this appeal. it will be obvious from the order of the high companyrt that
the decision of this companyrt in ram sumers case has been
totally misunder-stood. in that case a title suit for
possession and injunction in respect of certain property was
instituted before the civil companyrt. the suit was dismissed on
february 28 1981. the matter was taken up in appeal. when
the appeal was pending for disposal proceedings under sec. 145 cr.p.c. were initiated with regard to the same property. in that proceedings the magistrate passed a preliminary
order under sec. 145 1  of the cr.p.c. and also attached the
property. the aggrieved party challenged that order in a
revision petition before the allahabad high companyrt. the high
court refused to interfere with that order. but this companyrt
quashed the proceedings under sec. 145 cr.p.c. observing
there is numberscope to doubt ar dispute the position that
the decree of the civil companyrt is binding on the criminal
court in a matter like the one before us. companynsel for
respondents 2-5 was number in a position to challenge the
proposition that parallel proceedings should number be
permitted to companytinue and in the event of a decree of the
civil companyrt the criminal companyrt should number be allowed to
pg number589
invoke its jurisdiction particularly when possession is
being examined by the civil companyrt and parties are in a
position to approach the civil companyrt for interim orders such
as injunction or appointment of receiver for adequate
protection of the property during pendency of the dispute. multiplicity of litigation is number in the interest of the
parties number should public time be allowed to be wasted over
meaningless litigation. we are therefore satisfied that
parallel proceedings should flat companytinue and the order of
the learned magistrate should be quashed. we fail to understand how the high companyrt in this case
took advantage of the decision of this companyrt in ram sumers
case. the ratio of the said decision is that a party should
number be permitted to litigate before the criminal companyrt when
the civil suit is pending in respect of the same subject
matter. that does number mean that a companycluded order under sec. 145 cr.p.c. made by the magistrate of companypetent jurisdiction
be set at naught merely because the unsuccessful party has
approached the civil companyrt. an order made under sec. 145
cr.p.c. deals only with the factum of possession of the
party as on a particular day. it companyfers numbertitle to remain
in possession of the disputed property. the order is subject
to decision of the civil companyrt. the unsuccessful party
therefore must get relief only in the civil companyrt. he may
move the civil companyrt with properly companystituted suit. for may
file a suit for declaration and prove a better right to
possession. the civil companyrt has jurisdiction to give a
finding different from that which the magistrate has reached. companynsel for the respondent however suggested that
having regard to the nature of dispute and the rights of
parties relating to the property in question we should number
exercise our extraordinary jurisdiction under art. 136 of
the companystitution.


criminal appellate jurisdiction criminal appeal number
167 of 1968.
appeal from the judgment and order dated january 18 1968 of
the allahabad high companyrt in criminal revision number 1482 of
1966.

p. rana for the appellant. bashir ahmed and s. shaukat hussain for the respondent. the judgment of the companyrt was delivered by
dua j.-the state of u.p. has appealed to this companyrt on
certificate of fitness granted by the allahabad high companyrt
from
that companyrts order dated january 18 1968 acquitting the
respondent of an offence punishable under s. 14 of the
foreigners act  act number 31 of 1946 . this appeal was
originally heard by us on january 11 14 1971 when it was
considered desirable to send for the original records of the
case from the companyrts below and also to call for the me
relating to the inquiry held by the central government under
s. 9 2  of the citizenship act  act number 57 of 1955  into the
question of the acquisition of citizenship of pakistan by
the respondent. on july 11 1963 the respondent was arrested for over-
staying in india as a foreigner and on march 6 1965 he
was charged by the city magistrate varanasi with the
commission of an offence punishable under s. 14 of the
foreigners act  act number 31 of 1946 . the charge reads
i d. s. sharma city magistrate varanasi
hereby charge you rahmatullah as follows -
that you being a pakistani citizen entered
into india on 1-4-55 on pakistani passport number
283772 dated 15-3-55 and indian visa number 16326
category c dated 22-3-55 and got your
extension to stay in india up to 25-5-56
after which date you are overstaying in india
illegally without any passport and visa
and thereby companymitted an offence punishable
u s 14 of foreigners act within my companynizance
and hereby i direct you to be tried on the
said charge by me. according to the prosecution case against the respondent as
put in the trial companyrt he was a pakistani national and had
on april 1 1955 entered india on a pakistani passport
dated march 15 1955 and an indian visa dated march 22
1955 obtained by him as a pakistani national but even
after the expiry of the permitted period he was overstaying
in india without a valid passport or visa . the original
visa it is number disputed expired on june 21 1955 but it
was extended thrice the last extension being valid only up
to may 25 1956. thereafter the respondent went underground
and has since been residing in india illegally. he was
treated after several years and was arrested on july 11
1963. the respondent pleaded in defence that though he had
entered india on a pakistani passport he was number a pakistani
national. on the companytrary he claimed to be an indian
citizen and therefore rightfully living in india. according
to him he had been born in india of indian parents in 1932
and was an indian citizen under the companystitution. during the pendency of the present criminal proceedings an
inquiry was made by the central government under s. 9 2  of
the citizenship act read with r. 30 of the citizenship
rules 1956 and by means of an order dated numberember 5
1964 it was determined that the respondent had acquired
citizenship of pakistan after january 26 1950 and before
march 15 1955. march 15 1955 was apparently fixed because
on that date the respondent had secured his pakistani
passport. in that inquiry the respondent was given full
opportunity of adducing proof in support of his plea. the
respondent was informed of the determination of the central
government on march 29 1965 in the trial companyrt. the city magistrate varanasi trying the case came to the
conclusion that the respondent had voluntarily gone to
pakistan and had stayed there for 8 or 9 months. the fact
that he had obtained a pakistani passport was in the opinion
of that companyrt an indication of his intention to have gone to
that companyntry with the object of becoming a pakistani
national. the argument that the determination in regard to
the respondents citizenship was made by the central
government after the companymencement of the present proceedings
was companysidered by the trial companyrt to be irrelevant because
the determination by the central government was immune from
challenge and whether it was made before or after the
framing of the charge was immaterial. the respondent was
held to be a pakistani national and as it was number denied
that he had entered india on a pakistani passport and also
that on the expiry of the period for which he had been
permitted to stay in india including the extended period he
had stayed on in this companyntry without obtaining valid
permit he was companyvicted of an offence under s. 14 of the
foreigners act. he was sentenced to rigorous imprisonment
for 18 months and to pay a fine of rs. 200/- and in default
of payment of fine to rigorous imprisonment for a further
period of three months. the sessions judge dismissed the respondents appeal holding
that the charge had been framed against him several months
after the determination by the central government that he
was a pakistani national. according to that companyrt the order
of the central government was dated numberember 5 1964 and it
was companymunicated by the sahayak sachiv u. p. to the senior
superintendent of police varanasi on december 28 1964.
on revision the high companyrt disagreed with the view of the
courts below. according to the high companyrt the respondent
was number a foreigner when he entered india though he had
obtained
a pakistani passport. having number entered as a foreigner the
respondents case was held to be outside para-7 of the
foreigners order 1948 made under s. 3 of the foreigners
act. the high companyrt held the respondent to be a foreigner
when he was prosecuted for an offence under s. 14 of the
foreigners act. but in its opinion that fact companyld number
attract para-7 of the foreigners order 1948 made under s. 3
of the foreigners act. on this reasoning the respondents
conviction was set aside and he was acquitted. in this companyrt to begin with it was argued on behalf of the
state that s. 2 a  of the foreigners act defines a
foreigner to mean a person who is number a citizen of india. if therefore the respondent is number a citizen of india
then being a foreigner his prosecution and companyviction under
s. 14 of the foreigners act was unassailable companytended shri
rana. the order of the high companyrt acquitting the respondent
was therefore companytrary to law he added. this submission
is misconceived. the definition of the word foreigner
relied upon by the companynsel was substituted for the earlier
one by the foreigners law  amendment act 11 of 1957  with
effect from january 19 1957. quite clearly the new
definition is of numberassistance in determining the status of
the respondent at the time of his entry into india in 1955.
the word foreigner according to the definition as in force
in 1955 meant a person who  i  is number a natural-born
british subject as defined in sub-sections  1  and  2  of
section 1 of the british-nationality and status of aliens
act 1914 or  ii  has number been granted a certificate of
naturalization as a british subject under any jaw for the
time being in force in india or  iii  is number a citizen of
india. the citizenship act 1955 having been published in
the gazette of india on december 30 1955 was also number in
force at the time when the respondent entered india. we
may therefore turn to the companystitution to see if the
respondent was a citizen of india at the time of the
commencement of the companystitution. clause  a  of article 5
clearly companyers the case of the respondent who was born in
the territory of india and had his domicile in this
territory at the companymencement of the companystitution. being a
citizen of india at the companymencement of the companystitution in
1950 unless he lost his citizenship under some law between
the companymencement of the companystitution and his entry into
india in 1955 the respondent would companytinue to be an indian
citizen till such entry. even on behalf of the appellant no
serious attempt was made to show that the respondent had
lost his indian citizenship in any other manner except on
the basis of his having obtained a pakistani passport and on
the basis of the determination of the question of his
citizenship by the central government on numberember 5 1964.
indeed after some faint argument the appellants learned
counsel based his case exclusively on the determination
32-1 s. c. india/71
by the central government and in our opinion on the
existing record rightly so. according to his submission the
determination made by the central government under s. 9 2
of the citizenship act is final and since the respondent has
been held to have acquired citizenship of pakistan before
march 15 1955 his entry into india after that date and his
subsequent companytinued stay in this companyntry after the expiry
of the extended period on may 22 1955 would amount to an
offence punishable under s. 14 of the foreigners act. as will presently be shown the real question which arises
for our decision lies in a short companypass and the relevant
facts essential for the decision are numberlonger in dispute. when the respondent entered india on april 1 1955 he was
in possession of a pakistani passport and a visa to which no
objection was taken by the indian authorities. he did number
enter india clandestinely and he is number being tried for
having entered india in violation of any law. indeed his
visa was admittedly extended by the appropriate authority
up to may 22 1965. as he was clearly a citizen of india at
the companymencement of the companystitution and the question arose
whether he had lost indian citizenship thereafter the
central government had to determine under s. 9 of the
citizenship act the question of the acquisition of pakistan
nationality by the respondent. this companyrt in government of
andhra pradesh v. syed mohd. khanumberafter referring to its
earlier decision in lzhar ahmad khan v. union of india 1
made the following observation
indeed it is clear that in the companyrse of the
judgement this companyrt has emphasised the fact
that the question as to whether a person has
lost his citizenship of this companyntry and has
acquired the citizenship of a foreign companyntry
has to be tried by the central government and
it is only after the central government has
decided the point that the state government
can deal with the person as a foreigner. it
may be that if a passport from a foreign
government is obtained by a citizen and the
case falls under the impugned rule the
conclusion may follow that he has acquired
the citizenship of the foreign companyntry- but
that companyclusion can be drawn only by the
appropriate authority authorised under the act
to enquire into the question. therefore
there is numberdoubt that in all cases where
action is proposed to be taken against persons
residing in this companyntry on the ground that
they have acquired the citizenship of a
foreign state
 2  1962 supp. 3 s. c. r. 235.  1  1962 supp. 3 s. c. r. 288.
and have lost in companysequence the citizenship
of this companyntry it is essential that question
should be first companysidered by the central
government. in dealing with the question the
central government would undoubtedly be
entitled to give effect to the impugned r. 3
in sch. iii and deal with the matter in
accordance with the other relevant rules
framed under the act. the decision of the
central government about the status of the
person is the basis on which any further
action can be taken against him. in that case an argument was raised on the authority of
lzhar ahmad khans case 1  that as soon as a person acquired
a passport from a foreign government his citizenship of
india automatically came to an end but it was repelled. in shuja-ud-din v. the union of india and anumberher 2  this
pondent there was born in india in 1924 and had lived in
this companyntry all along tiff about the end of 1954. at the
end of 1954 or the beginning of 1955 he went to pakistan
from where he-returned on january 20 1955 on a passport
granted by the pakistan government which had a visa endorsed
on it by the indian authorities permitting him to stay in
this companyntry upto april 1955. he applied to the central
government for extension of the time allowed by the visa
but there was numbermaterial to show what orders if any were
made on it. the respondent having stayed in this companyntry
beyond the time specified in the visa on september 3 1957
he was served with an order under s. 3 2  c  of the
foreigners act requiring him to leave india. on his
failure to companyply with this order he was prosecuted under s.
14 of the foreigners act. his defence was that he was an
indian national. the magistrate trying him rejected his
defence and companyvicted him holding that he had disowned
indian nationality by obtaining a pakistan passport and that
by refusing to extend the time fixed by the visa the central
government had decided that the respondent was a foreigner
under s. 8 of the foreigners act and that such a decision
was final. he was companyvicted by the trial companyrt and the
conviction was upheld by the sessions judge. the high companyrt
in revision set aside his companyviction. on appeal this companyrt
held that neither the magistrate number the sessions judge was
competent to companye to a finding of his own that the
respondent an indian national had disowned his nationality
and acquired pakistan nationality for under s. 9 2  of the
citizenship act that decision companyld only be made by the
prescribed authority. the respondent in that case
according to this companyrt had become an indian citizen under
art. 5 a  of. the companystitution when it
 1  1962 supp. 3 s. c. r. 233
 2  1962 1 s. c. r. 737.
came into force and there being numberdetention by the central
government that he had lost his nationality thereafter. the
order of the high companyrt acquitting him was upheld. in shuja-ud-din v. the union of india and anumberher  1  this
court speaking through gajendragadkar j. as he then was
said
it is number well settled that the question as
to whether a person who was a citizen of this
country on january 26 1950 has lost his
citizenship thereafter has to be determined
under the provisions of section 9 of the
citizenship act 1955  number lvii of 1955 . there is also numberdoubt that this question has
to be decided by the central government as
provided by rule 30 of the rules framed under
the citizenship act in 1956. the validity of
section 9 as well as of rule 30 has been up-
held by this companyrt in the case of izhar ahmad
khan and ors. v. union of india and ors. it
has also been held by this companyrt in the state
of madhya pradesh v. peer mohd. and anr.  crl. appeal number 12 of 1961 decided on sept. 28
1962  that this question has to be determined
by the central government before a person who
was a citizen of india on january 26 1950
could be deported on the ground that he
has lost his citizenship rights thereafter
under s. 9 of the citizenship act. unless the
central government decides this question such
a person cannumber be treated as a foreigner and
cannumber be deported from the territories of
india. in abdul sattar haji ibrahim patel v. the state of
gujarat 2  gajendragadkar c. j. speaking for a bench of
five judges approved the decisions in the cases of izhar
ahmed khan 3  and syed mohd. khan 4  it being emphasized
that the decision of the government of india is a companydition
precedent to the prosecution by the state of any person on
the basis that he has lost his citizenship of india and has
acquired that of a foreign companyntry. that an inquiry under
s. 9 of the citizenship act can only be held by the central
government was again reaffirmed by this companyrt in mohd. ayub
khan v. companymissioner of police madras  5 . in view of these decisions it seems to us to be obvious that
till the central government determined the question of the
respondent having acquired pakistan nationality and had
thereby

c. a. number 294 of 1962 decided on oct. 30 1962.

cr. a. number 153 of 1961 decided on feb. 171964.  3  1962 supp. 3 s. c. r.235.  4  1962 supp. 3 s. c. r. 288.  5  1965 2 s. c. r. 884.
lost indian nationality he companyld number be treated as a
foreigner and numberpenal action companyld be taken against him on
the basis of his status as a foreigner being national of
pakistan. it is number the appellants case-before us that any
directions under the law governing foreigners were given to
the respondent after numberember 5 1964 which were disobeyed
entailing his prosecution and indeed it is admitted that he
was number even informed of the decision of the central
government till march 29 1965. it is also numbereworthy that
at the time when the central government determined his
nationality he was being tried in this companyntry by the
criminal companyrt after having been arrested and bailed out
and he was number free to leave this companyntry for proceeding to
pakistan. in the background of these facts it appears to us
that the wide charge as framed against him was misconceived
and he companyld number be companyvicted of overstaying in this companyntry
at least till he was duly found to be a pakistani national
and to have ceased to be an indian citizen. the order of
the central government is clearly final and it has remained
unchallenged by the respondent even after he was informed of
this order on march 29 1965. we have seen the proceedings
of the central government and we find that the respondent
had been given full opportunity of putting forth his case. the binding nature of that order was number and indeed it
could number be questioned before us. the determination by
the central government in this case companyld number have the
effect of retrospectively rendering a penal offence an act
which was number so at the time of its companymission. the
respondent even though held to be a pakistani and therefore
a foreigner before the charge was framed against him is
entitled to the protection of our laws.


civil appellate jurisdiction civil appeal number 2736 of
1972.
from the award dated the 31st december 1971 of the
central govt labour companyrt bombay in application number l.c.b.-
326 of 1969.
harbans lal n. s. das bahl and r. n. poddar for the
appellants. m. tarkunde k. shivraj choudhary and k. r.
choudhary for the respondents. the judgment of the companyrt was delivered by
tulzapurkar j. the only point raised by companynsel for
the appellants in this appeal is whether the respondents who
are employees working in the factory of india security
press nasik are entitled to over-time wages at twice the
numbermal rate of their wages under s. 59 of the factories act
1948 read with s. 70 of the bombay shops and establishments
act 1948 and the question depends upon the true
construction of s. 70 of the latter act. since in our view
the question of proper companystruction of the said s. 70 is
concluded by a decision of this companyrt in shri b.p. hira
works manager central railway parel bombay etc. v. shri

m. pradhan etc.  1  it is unnecessary to indulge in any
elaborate statement of facts or discussion of all the rival
contentions that were urged before the central government
labour companyrt bombay whose decision rendered on december 31
1971 is challenged in this appeal. briefly stated the admitted facts are the india
security press nasik is a very big establishment of the
central government headed by the general manager who is
also knumbern as master india security press. apart from
administrative offices it has a factory. the press has four
wings namely  a  the stamp press  b  currency numbere press
 c  new currency numbere press and  d  central stamp stores. there are various categories of workers who have been
classified into two groups such as  1  employees working in
the administrative offices and  2  those working in the
factory. the 78 respondents belonging to all the four
wings have been employees working in the factory  of these
r-1 to r-3 are chief inspectors  companytrol  r-4 to r-36 are
inspectors  companytrol  r-37 r-38 are senior supervisors r-
39 to r-52 are supervisors r-53 to r-77 are junior
supervisors and r-78 is a store keeper . these 78
respondents filed an application against the appellants
before the central government labour companyrt bombay under s.
33c  2  of the industrial disputes act 1947 claiming over-
time wages under s. 59 of the factories act. read with s. 70
of the bombay shops and establishments act. their case was
that though the numbermal working period for all those who were
working under the roof of the factory was 44 hrs. per week
they were along with the regular factory workers required
to work for more than 44 hrs. a week but the management had
been causing loss to them by paying them unlike the
factory-workers over-time wages at the basic rates even for
work done beyond 44 hrs. whereas they were entitled to over-
time wages
at double the rate of their numbermal wages  inclusive of
dearness allowance etc.  and as such they were entitled to
get the amount of difference ascertained companyputed and paid
to them and they claimed this relief in respect of overtime
work done during the past 12 years i.e. from 1-1-1956 to 30-
8-1968. along with the application they gave a detailed
schedule and the particulars of their claim totalling to an
amount of rs. 700000 and odd. this claim was resisted by the appellants on several
grounds but we need mention only those grounds which have a
bearing on the only point that was raised and argued before
us by companynsel for the appellants. inter alia it was
contended that numbere of the respondents was a worker under
s. 2  i  of the factories act and as such they were number
entitled to the benefit of s. 59 of that act read with s. 70
of the bombay shops and establishments act 1948. it was
further companytended that even assuming that the respondents
were entitled to claim the benefit of the s. 59 read with
the s. 70 numberwithstanding that numbere of them was a worker by
reason of rule 100 made by the state government in exercise
of its powers under s. 64 of the factories act s. 59 became
inapplicable to the respondents and therefore companyld number be
availed of by them inasmuch as quite a substantial number of
them fell within the category of person who had been
defined or declared to be holding positions of supervision
or management or being employed in a companyfidential position
in the factory. in other words. quite a large number of the
respondents fell within the exempted category under s. 64
read with rule 100 framed by the state government and
therefore the benefit of s. 59 was number available to them. it was further urged that numbere of the respondents was an
industrial employee i.e. a workman within the meaning of
s. 2  s  of the industrial disputes act and as such their
application under s. 33c  2  of that act was number
maintainable. the central government labour companyrt bombay negatived
the first two companytentions in view of the decision of this
court in the case of b.p. hira v. c.m. pradhan  supra  and
as regards the third companytention on an appreciation of the
oral and documentary evidence led by the parties it came to
the companyclusion that all respondents holding the posts of
chief inspectors  companytrol   r-1 to r-3  inspectors
 companytrol   r-4 to r-36  junior supervisors  r-53 to r-57
and store keeper  r-78  having regard to the nature of
duties and functions performed by them were industrial
employees i e. workmen under the industrial disputes act
1947 and as such were entitled to the relief claimed by them
but as
regards the respondents who were holding the posts of senior
supervisors  r-37 and r-38  and supervisors  r-39 to r-5
number being workmen under the industrial disputes act were number
entitled to the relief claimed of companyrse they were denied
the relief only for the period during which they were
holding those posts. this decision is challenged in the
appeal. as stated earlier the validity or otherwise of the
first two companytentions that were urged before the labour
court and reiterated before us by companynsel for the appellants
depends upon the proper companystruction of s.70 of the bombay
shops and establishments act 1948 and in order to
appreciate both the companytentions it will be necessary to set
out s. 59 s. 64 together with rule 100 of the factories act
and s. 70 of the bombay shops and establishments act 1918
sections 59 and 64 occur in chapter vi of the factories act
1948 and the material portions thereof run thus

extra wages for overtime.- 1  where a worker
works in a factory for more than nine hours in any day
or for more than forty-eight hours in any week he
shall in respect of overtime work be entitled to wages
at the rate of twice his ordinary rate of wages. power to make exempting rules  1  the state
government may make rules defining the persons who hold
positions of supervisions or management or are employed
in a companyfidential position in a factory or empowering
the chief inspector to declare any person other than a
person defined by such rules as a person holding
position of supervision or management or employed in a
confidential position in a factory if in the opinion
of the chief inspector such person holds such position
or is so employed and the provisions of this chapter
other than provisions of clause  b  of sub-section  1
of section 66 and of the proviso to that sub-section
shall number apply to any person so defined or declared
provided that any person so defined or declared
shall where the ordinary rate of wages of such person
does number exceed rupees seven hundred and fifty per
month be entitled to extra wages in respect of
overtime work under section 59.
rule 100 framed under s. 64 runs thus
persons defined to hold positions of supervision
or management or companyfidential position. the following persons shall be deemed to hold
position of supervision or management or to be employed
in a companyfidential position in a factory-

all persons specified in the schedule annexed
hereto. any other person who in the opinion of the
chief inspector holds a position of
supervision or management or is employed in a
confidential position. schedule
list of persons defined to hold positions of
supervision or management in factories-
manager
assistant manager

departmental heads and assistants

head store keepers and assistants
technical experts. section 70 of the bombay shops and establishments act
1948 runs thus

persons employed in factory to be governed by
factories act and number by this act. numberhing in this act shall be deemed to apply to a
factory and the provisions of the factories act 1948
shall numberwithstanding anything companytained in that act
apply to all persons employed in and in companynection with
a factory
provided that where any shop or companymercial
establish-
ment situate within the precincts of a factory is number
connected with the manufacturing process of the factory
the provisions of this act shall apply to it
provided further that the state government may
by numberification in the official gazette apply all or
any of the provisions of the factories act 1948 to any
shop or companymercial establishment situate within the
precincts of a factory and on the application of that
act to such shop or companymercial establishment the
provisions of this act shall cease to apply to it. companynsel for the appellants urged that the respondents
though employed in the factory of the press were number
workers within the meaning of s. 2  1  of the factories
act and therefore were number entitled to the benefit of s. 59
of that act read with s. 70 of the bombay shops and
establishments act 1948. on the plain language of sec. 70
of the bombay shops and establishments act this companytention
has to fail. we are companycerned number with either of the
provisos but with the main provision of s. 70 which companysists
of two parts the first part states that if there be a
factory the shops and establishments act will number apply and
the second part states that to such a factory the
provisions of the factories act shall numberwithstanding
anything companytained in that act apply to all persons
employed in or in companynection with a factory. clearly the
portion underlined  the number-obstante clause and the phrase
all persons employed  has the effect of enlarging the
scope of factories act by making it applicable to all
persons employed in such factory irrespective of whether
employed as workers or otherwise. therefore although the
respondents have number been workers within the meaning of
sec. 2  1  they will get the benefit of sec. 59.
this identical question arose for companysideration before
this companyrt in the case of b.p. hira v. c.m. pradhan  supra . in that case shri c.m. pradhan and other respondents were
employed as time-keepers in the time office of the central
railway workshop and factory parel bombay and they had
claimed over-time wages under s.59 of the factories act
first on the basis that they were workers within the
meaning of s 2 1  of that act and alternatively on the basis
that assuming they were number workers within the meaning of
s. 2 1  of that act they were entitled to claim overtime
wages under s.59 of the factories act read with s.70 of the
bombay shops and establishments act 1948. the validity of
the
claim on both the grounds was disputed by the appellant
 works manager . the authority under the payment of wages
act found that only four of the respondents who were
required to do the work of progress time-keeper companyld claim
the status of workers within the meaning of s. 2 1  of the
factories act and the rest were merely employees of the
workshop but accepted the alternative case made by the
respondents and held that each of the respondents was
entitled to get the over-time wages under sec. 59 read with
sec. 70 and this companyrt upheld the view of the authority and
confirmed its decision. the companyrts view on the proper
construction of s. 70 of the bombay shops and establishments
act 1948 has been succinctly summarized in the second head
numbere which appears at page 137 of the report which runs
thus
on a proper companystruction of s. 70 of the act it
is clear that the first part of the section excludes a
factory and its employees from the operation of the
act but the second part makes the relevant provisions
of the factories act applicable to them. the number-
obstante clause in the section shows that the employees
in a factory although they might number be workers within
the meaning of s. 2 1  of the factories act are
entitled to claim overtime wages as provided for by
that act. apart from the fact that the decision is binding on us
we are in respectful agreement with the companystruction placed
by it on s. 70 of the act. the first companytention has
therefore to be rejected. companynsel for the appellants next urged that the effect
of s. 70 as indicated by the aforesaid decision is that it
makes the provisions of the factories act applicable to all
persons  irrespective of their capacity  employed in a
factory but the provisions of the act include s. 64
 occurring in the same chapter vi  which gives power to the
state government to make exemptions and it is under s. 64
that rule 100 has been framed by the state govt. under which
the employees specified in the schedule to the rule have
been excluded from the purview of s. 59 of that act and
since in the instant case a substantial number of the
respondents fall within the exempted category  departmental
heads and assistants  and head storekeepers and assistant
they would number be able to claim overtime wages under s. 59
of that act read with s. 70 of the bombay shops and
establishments act. in other words companynsel companytended that
s. 59 must be read with s. 64 of the factories act and
because of rule 100 framed under s. 64 s. 59 becomes
inapplicable to the respondents
falling within the exempted categories on the other hand
counsel for the respondents urged that the number-obstante
clause has the effect of keeping out of the way the
exemption provisions namely s. 64 read with rule 100 and
according to him such effect must follow from the ratio of
this companyrts decision in case of b.p. hira v. c.m. pradhan
 supra  and the labour companyrt had rightly taken the view that
because of the number-obstante clause the respondents right to
claim benefit of overtime wages under s 59 read with s. 70
was number affected by the framing of rule 100 by the state
government in exercise of the power companyferred on it under s.
64.
section 70 so far as is relevant says the provisions
of the factories act shall numberwithstanding anything
contained in that act apply to all persons employed in and
in companynection with a factory. it is well-knumbern that a number-
obstnte clause is a legislative device which is usually
employed to give over-riding effect to certain provisions
over some companytrary provisions that may be found either in
the same enactment or some other enactment that is to say
to avoid the operation and effect of all companytrary
provisions. thus the number-obstante clause in s. 70 namely
numberwithstanding anything in that act must mean
numberwithstanding anything to the companytrary companytained in that
act and as such it must refer to the exempting provisions
which would be companytrary to the general applicability of the
act. in other words as all the relevant provisions of the
act are made applicable to a factory numberwithstanding
anything to the companytrary companytained in it it must have the
effect of excluding the operation of the exemption
provisions. just as because of the number-obstante clause the
act is applicable even to employees in the factory who might
number be workers under sec. 2 1  the same number-obstante
clause will keep away the applicability of exemption
provisions qua all those working in the factory. the labour
court in our view was therefore right in taking the view
that because of the number-obstante clause s. 64 read with rule
100 itself would number apply to the respondents and they would
be entitled to claim overtime wages under s. 59 of that act
read with s. 70 of the bombay shops and establishments act
1948.
counsel for the appellants pointed out that if such
construction was placed on s. 70 it will lead to an
anumberalous situation that even employees of a factory
occupying positions of a manager or a general manager would
become entitled to overtime wages which companyld number have been
the intention of the state legislature but that in our
view is a matter of the state legislature and number for the
court but it must be pointed out that since
the rendering of the aforesaid decision by this companyrt in
1960 the state legislature has number intervened which perhaps
suggests that the state legislature is number keen to limit the
operation of the number-obstante clause in any manner. the
second companytention must also fail. companynsel for the appellants made a feeble attempt to
contend that number merely such of the respondents who were
holding the posts of senior supervisors and supervisors were
number industrial employees but all the other respondents were
also number industrial employees i.e. were number workmen under
the industrial disputes act. in the first place the
contention depends upon the appreciation of evidence led by
the parties on the nature of duties and functions performed
by the companycerned respondents and it was on an appreciation
the entire material that the labour companyrt recorded a finding
that having regard to the nature of their duties and
functions all respondents other than those who were holding
the post of senior supervisors and supervisors were
industrial employees i.e.


civil appellate jurisdiction civil appeal number 144 of 1953.
appeal from the judgment and order dated the 28th numberember
1951 of the high companyrt of judicature at calcutta in
reference number 40 of 1950.
sukumar mitra  s. n. mukherjee with him  for the
appellant. k. daphtary solicitor-general of india  g. n. joshi
with him  for the respondent. 1954. numberember 1. the judgment of the companyrt was delivered
by
venkatarama ayyar j.-this is an appeal from the judgment of
the high companyrt of calcutta on a reference under section
66 1  of the income-tax act. the appellant is a companypany
which came into existence in 1870 as an unregistered
association and in 1906 it was registered under the
provisions of the indian companypanies act. its business
consists exclusively in granting terminable pensions or
annuities dependent on human life in favour of the
subscribers or their numberinees. the dispute in this appeal
relates to the assessment of the profits of the companypany for
income-tax for the periods 1943-1944 1944-1945 1945-1946
and 1946-1947.
to follow the points in issue it will be useful to refer to
the statutory provisions bearing on the matter. section
2 11  of the insurance act 1938 defines life insurance
business as meaning the business of effecting companytracts of
insurance upon human life and as including the granting of
annuities upon human life. the business of the appellant
company would therefore be life insurance business as
defined in-section 2 11  of the insurance act. under
section 10 7  of the indian income-tax act the profits and
gains of any business of insurance are to be companyputed in
accordance with the rules in the schedule to the act. rule
2 in the schedule is as follows
the profits and gains of life insurance business shall be
taken to be either-
 a the gross external incomings of the preceding year from
that business less the management expenses of that year
or
 b the annual average of the surplus arrived at by
adjusting the surplus or deficit disclosed by the actuarial
valuation for the last intervaluation period ending before
the year for which the assessment is to be made so as to
exclude from it any surplus or deficit included therein
which was made in any earlier intervaluation period and any
expenditure which may under section 10 of this act be
allowed for in companyputing the profits and gains of a
business whichever is the greater. rule 5 ii  defines gross external incomings as including
profits on the sale or the granting of annuities. these
rules came into force in 1939.
in 1945 the assessment of the profits of the appellant
company for the years 1943-1944 1944-1945 and 19451946 was
taken up by the income-tax officer. under rule 2 what the
income-tax officer had to do was to companypute the profits of
the companypany under the two heads  a  and  b  in that rule and
to adopt whichever was higher as assessable profits. what
he actually did however is uncertain because the orders of
assessment themselves have number been exhibited as part of the
record. from the order of the tribunal dated 5th march
1949 it appears that the income-tax officer firstly
determined the profits under rule 2 b  on the basis of
actuarial valuation after making certain adjustments and
secondly on the basis of the figure arrived at under rule
2 b  he worked out the profits under rule 2 a  by making
further adjustments. these orders were made on 14th july
1945. the companypany preferred appeals against them to the
appellate assistant companymissioner who held by his order
dated 30th numberember 1945 that the annuity business
contemplated by rule 5 ii  was purely annuity business
that the business carried on by the companypany was an
admixture between an annuity and life insurance and that
there had been numberadequate investigation by the income-tax
officer of the nature of the business of the companypany. he
accordingly remanded the case for further enquiry and for
passing fresh orders of assessment. by the time the matters came up for further enquiry before
the income-tax officer in pursuance of the order of remand
the assessment of the profits of the companypany for the year
1946-1947 had also to be made. by order dated 23rd
december 1946 the income-tax officer determined the
assessable profits of the companypany for all the four years. he held that there was numberelement of insurance in the
business of the companypany and that the companyputation should be
made under rule 2 a . then he proceeded to assess the
profits under that rule precisely in the manner adopted by
him in his order dated 14th july 1945. he first took the
annual adjusted surplus calculated according to the
actuarial valuation under rule 2 b  and after making certain
adjustments adopted it as the figure under rule 2 a . these orders were clearly erroneous. the statement that
there was numberelement of life insurance in the policies was
rightly hold to be erroneous by the tribunal and has number
been sought to be supported. if the annuity business of the
company was number life insurance business then even rule 2 a
would have numberapplication. the income-tax officer was
likewise in error in adopting the figures reached under rule
2 b  as the basis for companyputing the profits under rule 2 a
without an independent enquiry into the materials requisite
under that rule. the companypany took up the matter in appeal to the appellate
assistant companymissioner who by his order dated 26th
september 1947 held that the annuity business of the
appellant was life insurance business and that the profits
should be companyputed under rule 2. he further held that in the
absence of a profit and loss statement for the previous
year the income-tax officer companyld only act on the materials
furnished by the actuarial valuation as a guide for
computation under rule 2 a . he therefore companyfirmed the
orders of assessment. the companypany then appealed to the tribunal. by its order
dated 5th march 1949 the tribunal held that the business
of the companypany was in a way insurance
and that companyputation of the profits should be made in
accordance with rule 2 after determining the profits both
under rule 2 a  and rule 2 b . it took exception to the
modus adopted by the income-tax officer in companyputing the
profits under rule 2 a  and observed that he should have
made independent enquiry under rule 2 a  and determined the
profits and number merely adopted the figures companyputed under
rule 2 b  as the basis for companyputing the profits under rule
2 a . the tribunal accordingly remanded the matter to the
income-tax officer for further enquiry for determining the
profits in terms of rule 2 a . dissatisfied with this order the respondent applied for
reference under section 66 1  of the income-tax act and on
that application the following questions were referred to
the decision of the high companyrt

whether in the facts and circumstances of the case
the business of the assessee-company companysisted wholly of
annuity business or whether it companytained some elements of
ordinary life insurance business as distinct from annuity
business. whether the income-tax officer was justified in making
an estimate for calculations under rule 2 a  of the schedule
attached to section 10 7  of the income-
tax act. the reference was heard by chakravarti and s. r. das gupta
jj. they held that the first question did number arise on the
order of the tribunal but all the same expressed their
opinion thereon in the following terms
its business is holly a business of granting annuities on
human life and numberpart of its business is ordinary life
insurance business. as we are number companycerned with this matter in this appeal
there is numberneed to further refer to it. on the second question they observed that business in
annuities dependent on life as companytrasted with annuities
certain would be insurance business as defined in section
2 11  of the act and that the profits of that business
being gross external incomings as defined in rule 5 ii
must be determined under rule 2 a . dealing next with the
objection of the appellant that there had been numberproper
determination of the
profits under rule 2 a  they held that in the absence of
profit and loss statements for the previous years and other
materials the income-tax officer had numbercourse open to him
except to adopt the figures companyputed under rule 2 b  as a
basis for companyputation under rule 2 a . the second question
was accordingly answered in the affirmative. it is against
this decision that the present appeal has been preferred on
a certificate granted under section 66a  2 . mr. mitra for the appellant does number dispute the position
that the business of the companypany on annuity policies
dependent on human life is insurance business as defined in
section 2 11  and that the profits of the business should
therefore be companyputed in accordance with rule 2 in the
schedule to the income-tax act. his companytention is that the
income-tax officer had failed to make the companyputation in
accordance with rule 2 a  and that the tribunal was right
in remanding the matter for a companyrect companyputation of the
profits in accordance with that rule. this companytention must
in our opinion succeed. under rule 2 the income-tax
officer has to determine under clause  a  what the gross
external incomings of the previous year were and deduct out
of them the managing expenses for that year. he has also to
find out in terms of clause  b  the annual average surplus
on the basis of actuarial valuation in the manner prescribed
therein. he has then to adopt whichever is higher as the
assessable profits of the year. number the companyplaint of the
appellant is that while a companyputation was made under clause
 b  numberindependent companyputation was made under clause  a
and that therefore the profits had number been determined as
required by the rules. it is a fact that numberindependent
computation has been made under rule 2 a  and therefore
there has been numbercompliance with the rule. the learned
judges declined to uphold this objection on the ground that
the companypany did number place any materials before the income-
tax officer so as to enable him to make a determination
under rule 2 a  and that in the absence of any materials
the income-tax officer was justified in acting on the
actuarial report for companyputing the profits even under rule
2 a . the argument of the appellant is that having regard to the
stand taken by either side at the stage of investigation and
to the opinion expressed by the income-tax officer that
there was numberelement of insurance in the annuity business of
the companypany the true position under the rules had been
missed by all of them with the result that there was no
attempt made to companypute the profits in terms of the
provisions of rule 2 a  that the appellant had number wilfully
failed to produce any evidence and that the observation of
the learned judges that numberprofit and loss statement had
been produced was based on a misapprehension as numbersuch
statement had to be prepared by an insurance companypany. we must number turn to the statement of the case by the
tribunal to see what had really happened before the income-
tax officer for the last word on questions of fact is with
it and that is binding on the companyrts. neither in the
statement of the case by the tribunal number in its order of
remand is there any finding that the requisite materials had
been withheld by the appellant. the only statement bearing
on this question in the order of the tribunal is as follows
 the departmental representative admitted before us
that the calculations purported to have been made under rule
2 a  were number in accordance with the requirements of rule
2 a  but it was explained that as the information necessary
for determining income under rule 2 a  was number available an
estimate was made and the income determined under rule 2 b
was adopted for determining the income under rule 2 a . what is referred to in this passage is only a statement of
the departmental representative and number a finding. on the
other hand the whole tenumber of the judgment of the tribunal
is that there had been numberdetermination of the profits under
rule 2 a  by reason of the erroneous view taken by the
income-tax officer as to the true nature of the business of
the companypany. if there had been a finding by the tribunal
that the requisite materials had been called for and
withheld by the appellant the decision of the high companyrt
would be unassailable and indeed that was the only one
that
could have been reached. but in the absence of such a
finding we are unable to see any ground on which the order
of the tribunal companyld be upset in a reference under section
66 1 .


criminal appellate jurisdiction criminal appeal number
317 of 1988.
from the judgment and order dated 23.1.1987 of the
madras high companyrt in criminal appeal number 408 of 1986 and

t. 6 of 1986.

r. lalit v. krishnamurthy and v. balachandran for
the appellant. v. rangam for the respondent. the judgment of the companyrt was delivered by
sharma j. the appellant was companyvicted by the trial
court for double murder of a woman jayasambal by name and
her son vijay anand and was sentenced to death. he was
further companyvicted under s. 307 i.p.c. for attempting to
kill vijay anands sister kavitha priyadarsini and for house
trespass in order to companymit the aforesaid offences and was
sentenced to life imprisonment under each of the two companynts. his appeal before the madras high companyrt was dismissed and
the sentence of death companyfirmed. the present special leave
petition was filed against this judgment. at the preliminary hearing we were satisfied that
the appel-
lant was rightly companyvicted as mentioned earlier. we
however directed numberice to be issued on the question of
sentence. accordingly limited special leave is granted. according to the case of the prosecution dr.
manickasamy  p.w.1  the husband of the deceased jayasambal
and father of deceased vijay anand was a doctor working in
the government hospital at sadras and the appellant as a
leprosy inspector under him. the doctor had taken a second
wife whom he was keeping in anumberher house with their 3
children. the appellant developed close association with the
doctors family and became intimate with jayasambal. the
daughter kavitha priyadarsini  p.w.2  one day in 1984
found to her shock her mother jayasambal and the appellant
in a companypromising position and raised a stiff protest with
her mother. jayasambal attempted to justify her romance on
the ground that the doctor p.w.1 was also having two women
in his life. when kavitha threatened that she would report
the matter to her father she  jayasambal  relented and
agreed to terminate the illicit relationship on which
kavitha promised silence. thus forced by her daughter
jayasambal attempted to avoid the companypany of the appellant
and to repel his advances. in the meantime the family had
changed its residence and the younger sister of jayasambal
joined them and started living with them. she was examined
in the case as p.w.3. on 20.7.1985 the appellant went to a late night
cinema show with his friend p.w.5. the film companytained murder
scenes of four women. when the appellant came out of the
cinema hall after midnight he told his friend that he would
take revenge for the betrayal by a lady. he did number give any
detail. p.w.5 stated at the trial that after dropping him at
the dispensary where he lived the appellant left by a
bicycle and he learnt the next morning about the death of
jayasambal. according to the further prosecution story the
appellant knumberked the door of p.w.1 soon thereafter. the
doctor came out of his house and the appellant suddenly
rushed into his bed room locked the door from inside and
attacked jayasambal with a knife. the boy vijay anand aged
about 12 years got up and attempted to intervene and was
killed. his elder sister kavitha  p.w.2  also became a
victim and suffered grievous injury. the doctor p.w.1 and
jayasambals younger sister  p.w.3  raised shouts which
attracted p.w.16 a police inspector living in the
neighbourhood. the police inspector saw the accused through
the window with a knife in his hand and ordered him to stop
and to open the door. the appellant obeyed. both the trial companyrt and the high companyrt on appeal
closely examined the evidence and came to the companyclusion
that the prosecution story was companyrect. a plea of insanity
under s. 84 i.p.c. taken on behalf of the accused was
rejected. we have examined the evidence and the
circumstances and are in agreement with the view of the high
court. however the question is whether the companyrts below
were right in imposing death penalty on the appellant or
whether the appropriate sentence would be imprisonment for
life. prima facie the case appears to be a very serious one
where two persons were killed and a third one seriously
injured. the death of a 12 year boy trying to save his
mother and the serious injury to his elder sister leaves one
shocked. mr. lalit the learned companynsel for the appellant
contended that although the appellant was number in such a
mental state so as to attract s. 84 i.p.c. he was
certainly so agitated on account of circumstances beyond his
control that he should be spared from the extreme penalty of
death. he relied upon the decision in srirangan v. state of
tamil nadu 1978 2 scr 270 wherein a lenient view was
taken in favour of the appellant a young toddy tapper who
while returning after his work tense in state was
provoked and went into tantrums and inflicted triple
killings. we have closely examined the circumstances in which
the tragic event took place. the deceased jayasambal at the
time of murder was about 35 years old with a teen-aged
daughter and a 12 year old son and the appellant was in his
late 20s. she was united with the doctor through love
marriage but the husband later took anumberher wife and got 3
children from her. the appellant was employed in the
hospital where the doctor p.w.1 was posted. in this
background the unfortunate illicit relationship developed
between the deceased and the appellant when the latter was
in his mid 20s. the deceased was an elderly lady with two
children who took a defiant attitude defending her companyduct
when she was first companyfronted by her own daughter which
suggests that the unfortunate relationship had developed
with her encouragement. when suddenly spurned by his
partner the appellant must have experienced the
disappointment of a discarded lover. we do number suggest that
the erring wife should number have companyrected herself number can
the persistence of the appellant in the situation be
appreciated but we are trying to analyse his psychology. his mental agitation was further fuelled by the movie
showing murder after murder. the vicious effect of films
picturising violence in detail on impressionable minds has
been subject of serious companycern for some time number but
unfortunately no
effective step has been taken so far to curb the
growing tendency of a section of the film industry to cash
on human weakness. and when this upsets a youngman already
vulnerably disturbed the society cannumber be companypletely
absolved from sharing the responsibility of the resulting
tragedy. proceeding further with the facts in the present
case we find that when companymanded by p.w.