Input:
tition Nos.
5600, 5601, 5615, 5689 5697 and 6283 6307/1980.
(Under Article 32 of the Constitution) Soli J. Sorabjee, O.N. Tikku, E.C. Aggarwala, M.L. Bhatt, R. Satish, and V.K. Pandita for the Petitioners in W.Ps.
5600 01,5615 & 5689 97/80.
M. K. Ramamurthy, Miss R. Vaigai, Joginder Singh and J. Ramamurty for the Petitioners in WPs.
6283 6307/80.
S.N. Kacker and Altaf Ahmed for the Respondents in all the Writ Petitions.
The Judgment of the Court was delivered by PATHAK J.
The petitioner challenges the admission of a number of candidates to the M.B.B.S. course in the Government Medical College Srinagar for the session 1980 81.
The petitioner, who had also applied for admission, was denied it.
She contends that the criteria adopted in granting admission, is discriminatory, unreasonable and void.
The Principal, Government Medical College, Srinagar invited applications by 3rd April, 1980 for admission to the M.B.B.S. course for the session 1980 81, and the notice specified the qualifying examinations of the Board of Secondary Education, Kashmir, or any other equivalent Board or University which constituted the basis of eligibility.
The manner and procedure governing the eligibility for admission had been set forth in a Government order 37 of 3rd April, 1978, which laid down that a Selection Committee constituted by the Government would determine the inter se merit of eligible candidates on the basis of an interview for judging their (a) physical fitness, (b) personality, (c) aptitude, (d) general knowledge and (e) general intelligence.
This Government order was modified by a subsequent Government order dated 23rd June, 1980 and in the result eligible candidates were now required to appear not only in the viva voce examination but also in an objective test.
These two tests along with merit in the qualifying examination of the Board or University constituted the three elements which together combined to form a basis for Selection.
The qualifying examination carried 35 marks, the objective test was allotted 35 marks and the viva voce examination was assigned 30 marks.
Besides the examination base constituted by the aforesaid three criteria, the selection was also determined by a distribution of the seats into three distinct divisions.
Of the total number of seats 50% were earmarked for being filled on the basis of open merit, 25% were reserved for candidates from Scheduled Castes and other reserved categories, one of which was broadly described as "socially and educationally backward classes" and included candidates from (a) areas adjoining actual line of control, and (b) area known as bad pockets including Ladhak.
After selection had been made as above the remaining 25% of the seats were to be filled "on the basis of inter se merit to ensure rectification of imbalance in the admission for the State, if any, so as to give equitable and uniform treatment to those parts".
It was also recited that in case there was no "visible imbalance", the seats earmarked under that head were to be distributed among further "open merit" candidates.
On 27th June, 1974, the percentage of seats reserved for the different categories was refixed, so that 60% of the seats were now earmarked for admission on the basis of "open merit", 20% for distribution among candidates from the Scheduled Castes and other reserved categories including socially and educationally backward classes, and the remaining 20% of the seats were earmarked for "ensuring rectification of imbalances".
Still another order dated 21st April, 1976 reduced the reservation for removing regional imbalances from 20% to 18%.
The selection of candidates for admission to the Government Medical College, Jammu for the academic year 1979 80 was challenged in this Court in Nishi Maghu vs State of Jammu and Kashmir(1) 38 and the Court held that "the classification made for rectification of regional imbalance without identifying the areas suffering from imbalance was vague and the selections made under that head were accordingly invalid".
The Court directed that the seats reserved under that head should be added to the quota of seats earmarked for selection on the basis of merit and filled accordingly.
Thereafter, in an attempt to remove the deficiency pointed out by this Court in Nishi Maghu (supra), the State Government published Notification No. 41 GR of 1980 dated 24th September, 1980 purporting to identify certain villages as socially and educationally backward for applying the principle of "rectification of imbalance in different parts of the State".
A long schedule (covering over 60 pages of the record before us) was annexed and listed some hundreds of villages.
About the same time, a Government order was issued fixing 17% of the seats in the M.B.B.S course of the medical colleges of the State as the admission quota for the purpose of "rectification of imbalances.
" From 14th to 17th July, 1980, as many as 660 candidates were interviewed by a Committee at Srinagar by way of viva voce examination.
On 21st July, 1980 the State Government issued a directive that a total list of 125 candidates be prepared against all the seats of the two Government Medical Colleges, at Srinagar and at Jammu.
A Selection List was finalised taking into account the reservations made for various categories and classes by the different Government orders, and was published on 29th September, 1980, and the names of 75 candidates were announced for admission to the M.B.B.S. course to the Government Medical College, Srinagar.
The principal contention of Mr. Soli Sorabjee appearing for the petitioner in Writ Petition No. 5600 of 1980, is that notwith standing this brave attempt to meet the constitutional requirement indicated in Nishi Maghu (supra) the State Government has failed in its purpose.
It is urged that there was no material before the State Government affording a pertinent basis for classifying these villages.
It is pointed out that almost whole tehsils of different districts have been identified as socially and educationally backward, `bad pockets ' and areas belonging to the line of actual control have been included and in the result with more than 95 per cent of the villages classified as socially and educationally backward, the inference must be that almost all 39 of Kashmir Division calls for a reservation quota.
It is asserted that a portion of Srinagar city, which includes Sangin Darwaza and Bhagwanpure, has also been identified as socially and educationally backward.
To that class have also been added towns where Notified Area Committees exist.
The submission is that the classification is wholly arbitrary and without any foundation to sustain it.
The mere circumstance, it is urged, that the classification is defined on the basis of villages without anything more demonstrates its unconstitutional character.
The case of the State Government is that the classification fully satisfies the criterion "social and educational backwardness".
In proof of the assertion it is pointed out that the present selection shows that candidates from areas not included in this classified category have taken 66 seats out of 75 on the basis of open merit.
It is conceded that a large number of villages have been included in the classification, but it is pointed out that the greater bulk of the population resides in the two cities of Srinagar and Jammu alone and would be equivalent to the population of hundreds of villages taken together.
The classification is supported by the consideration that in the nature of things the inhabitants of the rural areas are socially and educationally backward.
It is urged that merely because some of the villages are administered by Notified Area Committees does not remove the stigma of backwardness.
It is admitted that two reports, popularly described as the Anand Committee report and the Sikri Commission report, are under consideration by the Government but, it is said, as a comprehensive appreciation of the situation disclosed by the two reports of all the aspects of social and educational backwardness in the State has not been made yet, the Government has proceeded "in its own wisdom" to identify the areas suffering from regional imbalance.
We are of opinion that the classification attempted by the State Government by its order dated 24th September, 1980 suffers from the vice of arbitrariness and must be declared invalid.
There is no intelligible data before us for sustaining the classification.
No doubt the State Government has acted in its own wisdom, but the material to which that wisdom was applied has not been disclosed at all.
The fact by itself that some hundreds of villages have been brought within the classification is of no assistance whatever.
Over six years ago, this Court in State of U.P. vs Pradip Tandon(1) ruled that in the matter of admission of students to medical colleges 40 a reservation in favour of candidates on the ground that they hailed from rural areas was unconstitutional.
The Court repelled the argument that it was necessary to reserve seats for candidates from rural areas because they were handicapped in the matter of education.
It also rejected the plea that as the number of marks obtained by candidates from rural areas in the qualifying test were much lower than the marks obtained by the general candidates that was an indication of the former 's educational backwardness.
Ray, C.J., speaking for the Court, observed: "The reservation for rural areas cannot be sustained on the ground that the rural areas represent socially and educationally backward classes of citizens.
This reservation appears to be made for the majority population of the State 80 per cent of the population of the State cannot be a homogeneous class.
Poverty in rural areas cannot be the basis of classification to support reservation for rural areas.
" The criterion adopted by the State Government cannot be accepted unless supported by other relevant considerations.
That a comprehensive understanding of regional imbalances from the Anand Committee report and the Sikri Commission report has not been possible yet affords no justification for an arbitrary classification.
We are not satisfied that the State Government has succeeded in bringing the case within Article 15 (4) of the Constitution.
The material before us is woefully inadequate and fails to sufficiently support the validity of the classification.
We are of opinion that the order of the State Government dated 24th September, 1980 must be declared invalid.
The next contention on behalf of the petitioner is that the allocation to the viva voce test of 30 per cent of the total marks is patently unreasonable and arbitrary.
Our attention has been drawn to the observations of this Court in Ajay Hasia vs Khalid Mujib(1) where an allocation of more than 15 per cent of the total marks for the oral interview was regarded as arbitrary and unreasonable and liable to be struck down as constitutionally invalid.
It seems to us that the State Government would have done well to apply its mind seriously to the evaluation ratio between the three criteria adopted for admission.
When the Government order of 23rd June, 1980 dividing the total marks between the three criteria was issued, there 41 was ample evidence of the principle and practice adopted by examining bodies of high repute and status in the country.
The marks ratio adopted by the Union Public Service Commission provided wise example.
Besides, almost 10 years before this Court in A. Peeriakaruppan, etc.
vs State of Tamil Nadu & Ors. had expressed its disapproval of the ear marking of 75 marks for the interview test out of 275 marks.
And before the selection process was taken in the present case this Court had already observed in Nishi Maghu (supra) that reserving 50 marks for the interview out of a total of 150 marks appeared excessive, especially when the time spent was not more than 4 minutes on each candidate.
This precisely is what happened here, because on the case of the State Government itself the average time devoted to the oral interview of each candidate was 4 minutes.
However, we are reluctant to interfere on this ground because a clear pronouncement that an allocation of more than 15% of the total marks to the viva voce examination would result in constitutional invalidity has been made only recently, in Ajay Hasia (supra), by this Court and that was after the selection process in the present case had already been taken.
We would prefer to impress on the State Government that there is need to revise the marks ratio because of the very real risk future selections will face on this score.
The next contention for the petitioner is that having regard to the number of candidates interviewed and the time applied to conducting the interview no more than two minutes or so could have been given on the average to the oral interview of each candidate, a period demonstrating, in the submission of learned counsel, that the selection process was conducted in a perfunctory manner and there was no real application of the mind to the selection of candidates.
The State Government maintains that the time spent was four minutes per candidate.
We have given the matter our anxious consideration, and we are unable to hold that there is adequate material for striking down the selection on this ground.
But here again the State Government would do well to note the observations made by this Court in Ajay Hasia (supra) in this matter, and to ensure that Selection Committees take care to devote sufficient time to the oral interview of individual candidates having regard to the several relevant considerations which must enter into their judgment respecting each candidate.
42 We are also told by the petitioner that the composition of the Interview Committee varied from time to time during the interviews.
Therefore, it is said, the selection stands vitiated.
It is alleged that while one member, Shri N.S. Pathania, Principal, Medical College, Jammu joined the Committee some time after the interviews had begun, another member, Shri B.R. Kundal, Deputy Commissioner, Udhampur was present during a part of the proceedings only and left thereafter.
In regard to Shri N.S. Pathania, it is not possible to say that his joining with a slight delay has materially affected the validity of the proceedings.
And as regards Shri Kundal, it appears that he was present on the 14th July, 1980 and according to the petitioner, left on the morning of the next day.
It will be noticed that all the members of the Committee except Shri Kundal were persons closely associated with medical education.
Shri B.R. Kundal was Deputy Commissioner of Udhampur.
We also do not know what was the mode of functioning employed by the Committee, whether it was such as to invalidate the proceedings if one of the members ex necessitas, was unable to participate throughout in them.
The respondents maintain that at least three out of four members remained present throughout the proceedings.
And according to the petitioner, a proportionately small number only of the candidates was interviewed when Shri Kundal was present.
In all the circumstances, we find it difficult to say that Shri Kundal 's absence from the Committee vitiated its proceedings.
Shri Soli Sorabjee then contends that a number of candidates were selected for admission because of favouritism on account of relationship or friendship with members of the Selection Committee or because they were related to important and influential persons in the State.
The allegations have for the most part been made for the first time in the rejoinder affidavit and there has been no reasonable opportunity to the respondents to reply to them.
Such allegations on this point as are contained in the writ petition are extremely vague and sketchy, and can form no basis for a finding in favour of the petitioner.
There is one more contention, and that is that the respondents Nos. 7 to 12 did not apply for admission to the Principal, Government Medical College, Srinagar, and even if they are found to have done so their applications must have been submitted beyond the time prescribed as the qualifying examination in which they appeared was held late and the results were announced after the date prescribed for submitting the applications at Srinagar had expired.
It 43 appears from the record before us that inasmuch as the relevant examination was held late and the announcement of the results was delayed the State Government permitted the candidature of these applicants to be considered for inclusion in a common list drawn up to cover candidates for admission to either of the Government Medical Colleges, at Srinagar and at Jammu.
Besides, it is conceded by the petitioner that those respondents have an excellent record and if they had applied in time for admission to the Government Medical College, Srinagar, they would certainly have been admitted on the basis of their merit.
In the circumstances, we do not propose to interfere with the grant of admission to those respondents.
Accordingly, the only relief which, in our judgment, should be awarded to the petitioner is the quashing of admissions granted in the quota reserved for rectifying regional imbalances.
In consequence, those seats must be filled up on the basis of open merit.
Writ Petitions Nos.
5601 of 1980, 5615 and 5689 to 5697 of 1980, which proceed on the same lines as Writ Petition No. 5600 of 1980, must be disposed of in like manner.
The remaining cases, Writ Petitions Nos. 6283 to 6307 of 1980, fall in a separate category.
The petitioners here challenge the selection of candidates for admission to the M.B.B.S. course in the Government Medical College, Jammu for the year 1980 81; and complain of the denial of admission to them.
The facts on which these writ petitions have been brought and the grounds on which they claim relief are substantially the same as in Writ Petition No. 5600 of 1980.
Indeed, Shri M.K. Ramamurthi, learned counsel for the petitioners, states at the outset that he adopts the submissions urged in that case against the validity of the admissions granted for the purpose of rectification of regional imbalances, in regard to the invalidity alleged by the assigning of 30% marks to the viva voce examination and also in regard to the legal effect on the interview proceedings of the absence of some members of the Selection Committee during part of the proceedings.
These points have been considered and disposed of by us in that writ petition, and those findings are of equal validity in these writ petitions also.
Besides this, learned counsel for the petitioners raises other contentions.
He urges that the selections made are not in accordance with the Regulations framed by the Indian Medical Council under section 33 read with section 19A, and therefore violate the fundamental right of the petitioner guaranteed 44 under Article 15 of the Constitution.
It is contended that the Regulations are law and are enforceable in a court, and that if they are to prevail the only reservation permissible is that in favour of Scheduled Castes and Scheduled Tribes.
According to the Regulations, it is asserted, a Selection Committee can either take into consideration the marks obtained in a qualifying examination or in the competitive test.
Nor, it is said, can a viva voce examination be permitted as a vehicle for selection.
The validity of holding a separate objective test is also assailed as also of assigning 35% of the total marks to it.
The merit test is challenged on the ground that no curricula have been prescribed in relation thereto Objection to the objective test and the viva voce examination is based on the ground that they fall outside the scheme envisaged by the Regulations made by the Indian Medical Council for admission to the M.B.B.S. course.
The respondents, however, question the validity of the Regulations.
We are then referred by the petitioners to clauses (j) and (I) of section 33, in support of the contention that the power of the Council to make regulations extends to making regulations prescribing the examinations and tests for admission.
It seems to us prima facie that those provisions do not authorise the Council to do so.
But we refrain from expressing any final opinion in the matter as the Council is not a party before us.
We are also not satisfied that the reservations permissible must be confined to Scheduled Castes and Scheduled Tribes.
Nor do we find sufficient basis in the submission that there is arbitrariness in providing for 35 marks to a separate objective test in addition to the 35 marks earmarked for the qualifying examination.
The grounds taken before us do not justify the conclusion that a competitive entrance examination is not permissible in law in addition to the qualifying examination.
In regard to the sufficiency of the objective test, we are not satisfied that the absence of a prescribed formal curriculum vitiates the objective test.
The next contention on behalf of the petitioners is that the presence of a Government official on the Selection Committee vitiates its constitution.
It is stressed that the viva voce test to be acceptable should be conducted by persons who are men of high integrity, calibre and qualifications.
There is no principle of law, so far as we know, disqualifying a Government official from participating on the Interview Committee merely because he is a Government official.
Nor do we believe that a Government official cannot be a person of high integrity, calibre and qualifications.
The constitution of a 45 Committee lies in the wisdom of the State Government and it is expected that men suitably qualified in every respect will be appointed to discharge the functions of the Committee.
So long as the State Government acts bona fide and on the basis of relevant considerations it is not possible to say that the appointment of a Government official is obnoxious to the law.
In the result, the writ petitions are allowed insofar that the selection of candidates for admission to the M.B.B.S. course of the Government Medical Colleges at Srinagar and at Jammu for the year 1980 81 made on the basis of rectifying regional imbalances is quashed and the respondents are directed to fill up those seats on the basis of open merit.
The candidates who will be displaced in consequence have already completed a few months of study and in order to avoid serious prejudice and detriment to their careers it is hoped that the State Government will deal sympathetically with their cases so that while effect is given to the judgment of this Court the rules may be suitably relaxed, if possible by a temporary increase in the number of seats, in order to accommodate the displaced candidates.
In the circumstances, there is no order as to costs.
S.R. Petitions allowed.

Output:
Selection of candidates to be admitted to M.B.B.S. course in the Medical College of the State of Jammu & Kashmir was made by a Selection Committee on the basis of (a) merit in qualifying examination (35 marks) (b) an objective test (35 marks) and (c) a viva voce test (30 marks).
The seats were distributed besides the examination base was determined by a distribution of the seats into three distinct divisions namely, (i) 60% on the basis of open merit; (ii) 20% on the basis of reservation for scheduled castes and other reserved categories, one of which was broadly described as "socially and educationally backward classes" which included candidates from (a) areas adjoining actual line of control and (b) areas known as "bad pockets", including Ladhak and (iii) 20% were reserved as seats to be filled "on the basis of inter se merit to ensure rectification of imbalance in the admission for various parts of the State, if any, so as to give equitable and uniform treatment to those parts".
In Nishi Maghu vs State of Jammu and Kashmir, ; , the Supreme Court held that the selections made under the third category were invalid, inasmuch as the classification made for rectification of regional imbalance without identifying the areas suffering from imbalance was vague.
The State Government, therefore, published Notification No. 41 G.R. of 1980 dated 24th September, 1980 purporting to identify certain villages as socially and educationally backward for applying the principle of "rectification of imbalance in different parts of the States".
and reduced the distribution of seats in the Medical Colleges of the State under this category from 18 to 17% under this category.
This order is challenged by the petitioner, an unsuccessful candidate in the selection made for admission to M.B.B.S. course for the year 1980 81.
35 Allowing the petitions, the Court ^ HELD: 1.
The classification attempted by the State Government by its order dated 24th September, 1980 suffers from the vice of arbitrariness and is, therefore, invalid.
There was no intelligible data before the Court for sustaining the classification.
No doubt the State Government had acted in its own wisdom, but the material to which that wisdom was applied was not disclosed at all.
The fact by itself that some hundreds of villages had been brought within the classification is of no assistance whatever.
That a comprehensive understanding of regional imbalances from the Anand Committee report and the Sikri Commission report had not been possible yet affords no justification for an arbitrary classification.
The State failed to bring the case within Article 15(4) of the Constitution.
[39 G; 40 D] State of U.P. vs Pradip Tandon, ; applied.
There is need to revise the marks ratio for the viva voce test because of the very real risk future selections would face on this score.
The Government would also do well to ensure that Selection Committees take care to devote sufficient time to the oral interview of individual candidates having regard to the several relevant considerations which must enter into their judgment respecting each candidate.[41 D & G] A. Peeriakaruppan, etc.
vs State of Tamil Nadu and Ors., [1971] 2 S.C.R. 430; Nishi Maghu vs State of Jammu and Kashmir, ; ; Ajay Hasia vs Khalid Mujib, ; , referred to.
The selection cannot be said to be vitiated on the ground that one of the members, Shri Kundal, left after some time and therefore the composition of the Interview Committee varied from time to time, since three out of four members remained present throughout the proceedings and a proportionately small number only of the candidates was interviewed when Shri Kundal was present.
[42 D E] 2: 3.
The appointment of a Government official as a member of the Selection Committee is not obnoxious to the law.
There is no principle of law disqualifying a Government official from participating on the Interview Committee merely because he is a Government official.
It cannot be said that a Government official cannot be a person of high integrity, calibre and qualifications.
The constitution of a Committee lies in the wisdom of the State Government and it is expected men suitably qualified in every respect will be appointed to discharge the functions of the Committee.
So long as the State Government acts bona fide it cannot be said that the presence of a Government official on the Selection Committee vitiates its constitution.
[44H, 45 A B] 2: 4.
Selection of a number of candidates, in the present case, cannot be said to have been made because of favouritism on account of relationship or friendship with members of the Selection Committee or because they were related to important and influential persons in the State.
Besides being sketchy and extremely vague, such allegations have been made for the first time in the rejoinder affidavit and there has been no reasonable opportunity to the respondents to reply to them.[42 F] 36 3.
The grant of admission to respondents Nos. 7 to 12, in the instant case, is in order, inasmuch as the relevant qualifying examination was held late and the announcement of the results was delayed.
The State Government correctly permitted the candidature of these applicants to be considered for inclusion in a common list drawn up to cover candidates for admission to either of the Government Medical Colleges, at Srinagar and at Jammu.
Even according to petitioner those respondents have an excellent record and if they had applied in time for admission in the Government College at Srinagar they would certainly have been admitted on the basis of their merit.
[42G H] 4.
A competitive entrance examination is permissible in law in addition to the qualifying examination.
In regard to the sufficiency of the objective test, the absence of a prescribed formal curriculum does not vitiate the objective test.
[44 E] 5.
A reading of the regulations framed by the Indian Medical Council under section 33 read with section 19 A of the makes it clear that the reservation permissible need not necessarily be confined to Scheduled castes and scheduled tribes.
[44 E]


Input:
Appeals Nos. 480 & 481 of 1962.
Appeals by special leave from the order dated March 10, 1958 of ' the Allahabad High Court in Writ Nos. 1006 and 1007 of 1955, and from the decision dated July 15, 1955 of the Labour Appellate Tribunal of India, Lucknow, III Bench in Appeal Nos.
III 274 and 300 of 1954.
G. section Pathak and G. C. Mathur, for the appellants.
K. section Hajela and C.P. Lai, for respondent No. 2 (In C.A. No, 480 of 1962).
727 J.P. Goyal, for respondents Nos. 3 to 12 (in C.A. No. 480 of 1962) and the respondents (in C.A. No. 481 of 1962).
May 9.
The judgment of the court was delivered by GAJENDRAGADKAR J.
An Industrial dispute which arose between the appellant, J,K. Cotton Spinning & Weaving Mills Co., Ltd,, and the respondents, its employees, was referred by the Government of Uttar Pradesh for adjudication to the Adjudicator, Kanpur, on November, 30, 1953.This dispute covered two items of claim made by the respondents.
The judgment of the court was delivered by GAJENDRAGADKAR J. An Industrial dispute which arose between the appellant, J.
K. Cotton Spinning & Weaving Mills Co., Ltd,, and the respondents, its employees, was referred by the Government of Uttar Pradesh for adjudication to the Adjudicator, Kanpur, on November, 30, 1953.This dispute covered two items of claim made by the respondents.
The first item was in regard to the dismissal of a gardener (Mali) Badri by name.
The respondents urged that the said dismissal was unlawful and Badri was entitled to reinstatement with all the wages during the period of his enforced unemployment.
The second item of dispute was in regard to the claim made by the 10 Malis employed by the appellant to receive dear food allowance, weekly holidays and leave with: wages.
Before the Adjudicator, the appellant contended that the Malis were not workmen within the meaning of the U.P. (No. 28 of 1947), and so, the reference was invalid.
It was also urged by the appellant that the claim made by the respondents for dear food allowance could not be sustained, because G.O. No. 3754 (LL)/XVIII 894 (L) 1948 issued by the U. P. Government on December 6, 1948, was inapplicable to the Malis inasmuch as the said Government order applied only to industrial employees and the Malis are not industrial employees within the meaning of the said order.
The other claims made by the respondents for weekly holidays and leave with wages were also resisted on the ground that the Malis were not workmen under 728 the Act, and so, they were entitled to, no relief in the present proceedings.
The Adjudicator held that the Malis were workmen under the Act, and so, he rejected the appellant 's contention that the reference was bad.
On the merits, he found that the dismissal of Badri was without justification, and so, he was entitled to reinstatement.
He also ordered that the appellant should pay Badri half his wages at Rs. 45/ p.m. as compensation from the date of his dismissal to the date of his reinstatement.
That is how the first item of dispute was decided by the Adjudicator.
On the second item of dispute. the Adjudicator found that the Malis were not industrial employees, and so, they were not entitled to claim dear food allowance under the relevant Government order.
The other claims made by the Malis With regard to weekly holidays and leave with wages were likewise rejected by the Adjudicator.
In other words, the second item of dispute was decided against the respondents.
This award was pronounced on May, 31 1954.
The decision of the Adjudicator gave rise to two appeals before the Labour Appellate Tribunal.
The appellant by its appeal No. 300 of 1954 disputed, the correctness of the Adjudicator 's conclusion that Badri was a workman and that his dismissal was unjustified.
The Labour Appellate Tribunal has rejected this contention and the appellant 's appeal was dismissed.
The respondents by their appeal No. 274/1954 contended that the Adjudicator was in error in holding that the Malis were not industrial employees and as such, were not entitled to dear food allowance.
The Labour Appellate Tribunal has upheld this plea and has given the Malis the benefit of the provision contained in the relevant Government order in respect of dear food allowance.
The claim of the respondents for a weekly holiday was, however, rejected by the Labour Appellate 729 Tribunal, while their claim for leave with wages was allowed, and a direction was issued that the Malis in question should be given leave in the manner prescribed by section 79 of the Factories Act (No. 63 of 1948).
The Labour Appellate Tribunal held that though the said Act was, in terms, not applicable to the Malis, the principle on which the statutory provision for leave prescribed by section 79 was based was a principle of social justice, and so, the Malis were entitled to have a similar benefit.
The respondents had also claimed that Badri should be given the full wages for the period of his enforced unemployment instead of Rs. 45/
as allowed by the Adjudicator.
This plea has also been upheld by the Labour Appellate Tribunal.
In the result, the respondents appeal substantially succeeded.
The decision, of the Labour Appellate Tribunal was pronounced on 15.7.1955.
This decision was challenged by the appellant before the Allahabad High Court by preferring a writ petition No. 1006/1955.
It was urged by the appellant that, the decision of the Labour Appellate Tribunal was patently erroneous and illegal, and so,, it should be quashed under article 226 of the Constitution.
Whilst the writ petition was pending in the said High Court, the Bench of the Labour Appellate Tribunal that sat at Lucknow ceased to exist, and so, the High Court took the view that it had no jurisdiction to entertain a writ petition in respect of the decision of the Labour Appellate Tribunal which was not functioning within the limits of its territorial juridiction.
That is why the said writ petition was dismissed as having become in fructuous.
This decision was pronounced on March 10, 1958.
The two present appeals Nos.
480 & 481/1962 have been brought to this Court by the appellant by special leave and they are directed, against the decision of the High Court dismissing the appellant 's 730 writ petition and against the decision of the Labour Appellate Tribunal respectively.
Mr. Pathak who appeared before us for the appellant stated that he did not propose to argue Civil Appeal No. 480/1962, because this Court 's decision in Civil Appeal No. 481/1962 would determine the dispute between the parties.
Civil Appeal No. 480/1962 has in that dense become unnecessary, because the merits of the main dispute are raised by the appellant in its appeal No. 481/1962 which is directed against the decision of the Labour Appellate Tribunal.
We would, therefore, deal with Civil Appeal No. 481/1962 only.
In this appeal, Mr. Pathak has not disputed the correctness or propriety of the decision of the Labour Appellate Tribunal in regard to the claim made by the respondents in respect of Badri 's dismissal.
So, that part of the dispute need not detain us in the present appeal.
The principal contention which has been seriously pressed before us by Mr. Pathak is that the Labour Appellate Tribunal was in error in holding that the Malis are workmen under section 2 of the Act.
Section 2 of the Act, as it stood at the relevant time, provided, inter alia , that in this Act the expression "workman" shall have the meaning assigned to it in section 2 of the , and that takes us to section 2 (s) of the (No. 14 of 1947) which defines a workman.
Section 2 (s), inter alia, provi des that a "Workman" means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward.
, whether the terms of employment be expressed or implied; and so, the question is whether the 10 Malis whose claims have given rise to the present reference can be said to be workmen under section 2 (s).
For deciding this point, it is necessary to refer to the relevant facts, as they have been found by the 731 Tribunals below.
The 10 Mails have been appointed by the appellant for the maintenance of gardens attached to the bungalows of some of the officers of the Mills which are situated in the compoun, of the Mills, while others are employed for looking after the gardens attached to Kamla Niwas which is a residential building allotted to the Governing Director of the Mills and which is also situated within the compound of the Mills.
Some of these Malis have also to work in the gardens attached to the residential building of the Director in charge of the Mills.
The gardens which are looked after by these Malis are not the gardens attached to the Mills as such.
It appears that in the large and expensive colony of the Mills, the factory of the Mills is inside a compound.
Outside this compound of the factory, but within the colony of the Mills, are situated the bungalows occupied by the officers of the Mills and the Director.
It is the gardens attached to these bungalows that arc looked after by the 10 Malis.
It is also clear that the Malis are appointed by the appellant.
The total monthly wages of these 10 Malis come to about Rs. 450/ .
The appellant collects a small amount from.
the officers as a contribution to the salaries of these Malis and the bulk of it approximating to 78% is paid by the appellant.
The contributions made by the officers are credited to the revenue of the appellant and from the funds of the appellant, the Malis are paid their wages and they are debited in the accounts of the appellant.
The names of the Malis are borne on a register maintained by the clerk of the appellant who supervises their work.
This clerk notes their attendance from day to day.
Their appointment is made by the appellant, their work is supervised and controlled by the appellant and they are liable to be dismissed by the appellant.
The officers who are allotted the bungalows have no control over the Malis and can exercise no jurisdiction over them.
It is in the light 732 of these facts that the question raised by Mr. Pathak in regard to the status of the Malis has to be determined.
Mr. Pathak contends that the crucial words used in the definition prescribed by section 2 (s) are ",,employed in any industry".
He argues that before any person can claim to be a workman under section 2 (s), it must be shown that he has been employed in the industry of the employer.
The industry of the appellant is spinning and weaving operations and, says Mr. Pathak, the Malis have obviously nothing to do either with the spinning or weaving operations of the appellant; since they are not employed in the industry of the appellant, the fact that they have been employed by the appellant would not make them Workmen within the meaning of the Act.
Thus presented, the argument is no doubt prima facie attractive; but as soon as we begin to examine it more carefully, it breaks down.
If the construction for which 'Mr. Pathak contends is accepted without any modification, clerks employed in the factory would not be workmen, because on the test suggested by Mr. Pathak, they are not employed in the spinning or weaving operation carried on by the appellant and yet, there is no doubt that clerks employed by the appellant to do clerical work are workmen under section 2 (s), and so.
the literal construction of the clause employed in any industry" cannot be accepted and that means that " employed in any industry" must take in employees who are employed in connection with operations incidental to the main industry, and once we are compelled to introduce this concept of incidental Connection with the main industry, the literal construction for which the appellant contends has to be rejected.
It is, of course, not very easy to decide what is the field of employment included by the principle of incidental relationship, and what would be the limitations of the said principle? If sweepers arc 733 employed by the appellant to clean the premises of the Mills, that clearly would be work incidental to the main industry itself, because though the work of the sweepers has no direct relation either with the spinning or weaving, it is so manifestly necessary for the efficient functioning of the industry itself that it would be irrational to exclude sweepers from the purview of section 2 (s).
If buses are owned by the industry for transporting the workmen, would the drivers of such buses be workmen or not? It would be noticed that the incidental connection in ' the present illustration is one degree removed from the main industry; the workmen who work in the industry are intended to be brought to the factory by the buses and it is these buses that the drivers run.
Even so, it would not be easy to exclude drivers of buses engaged by the factory solely for the purpose of transporting its employees to the Mills from their respective homes and back, on the basis that they are not workmen under section 2 (s).
Mr. Pathak was unable to resist the extension of the definition to such cases; but, nevertheless, he attempted to argue that though sweepers who sweep the premises of the factory may be called workmen, sweepers who sweep the area around the factory may not be included under section 2 (s).
Sweeping the area outside the factory, it is argued, may be incidentally connected with the main industry, but the incidental connection is indirect and remote, and so, this class of employees must be excluded from the definition.
We are not prepared to accept this argument.
In our opinion, an employee who is engaged in any work or operation which is incidentally connected with the main industry of the employer would be a workman, provided the other requirements of section 2 (s) are satisfied.
In this connection, it is hardly necessary to emphasise that in the modern world industrial operations have become complex and complicated and for the efficient and successful functioning of 734 any industry, several incidental operations are called in aid and it is the totality of all these operations that ultimately constitutes the industry as a whole.
Wherever it is shown that the industry has employed an employee to assist one or the other operation incidental to the main industrial operation, it would be unreasonable to deny such an employee the status of a workman on the ground that his work is not directly concerned with the main work or operation of the industry.
Reverting to the illustration of the buses owned by the factory for the purpose of trans porting its workmen, if the bus drivers can legitimately be held to assist an operation incidental to the main work of the industry, we do not see why a Mali, should not claim that he is also engaged in an operation which is incidental to the main industry.
While we are dealing with this point, it is necessary to bear in mind that the bungalows are owned by the appellant and they are allotted to the officers as required by the terms and conditions of the officers ' employment.
Since the bungalows are allotted to the officers, it is the duty of the appellant to look after the bungalows and take tare of the gardens attached to them.
If the terms and conditions of service require that the officers should be given bungalows and gardens are attached to such bungalows, it is difficult to see why in the case of Malis who are employed by the appellant, are paid by it, and who work subject to its control and supervision and discharge the function of looking after the appellant 's property, it should be said that the work done by them has no relation with the industry carried on by the appellant.
The employment is by the appellant, the 'conditions of service.
are determined by the appellant, the payment is substantially by the appellant, the continuance of service depends upon the pleasure of the appellant, subject, of course, to the Standing 735 Orders prescribed in that behalf, and the work assigned to the Malis is the work of looking after the properties which have been allotted to the officers of the appellant.
Like the transport amenity provided by a factory to its employees, bungalows and gardens are also a kind of amenity supplied by the employer to his officers and the drivers who look after the buses and the Malis who look after the gardens must, therefore, be held to be engaged in operations which are incidentally connected with the main industry carried on by the employer.
It is true that in matters of this kind it is not easy to draw a line, and it may also be conceded that in dealing with the question of incidental relationship with the main industrial operation, a limit has to be prescribed so as to exclude operations or activities whose relation with the main industrial activity may be remote, indirect and far fetched.
We arc not prepared to hold that the relation of the work carried on by the Malis in the present case can be characterised as remote, indirect or far fetched.
That is why we think that the Labour Appellate Tribunal was right in coming to the conclusion that Malis are workmen under the Act.
Before we part with this point, we would like to add that industrial adjudication appears consistently to have taken the view that Malis looking after the gardens attached to the bungalows occupied by officers of any industrial concern are workmen under section 2 (s).
Our attention has been drawn to two decisions of the Labour Appellate Tribunal dealing with this question.
In Shri Bhikari, Kanpur vs Messrs. Cooper Allen & Co., Kanpur, (1) the Labour Appellate Tribunal while dealing with the case of Bhikari who was engaged as a gardener by the Company and was on the pay roll of the Company observed that the Tribunal failed to see why he is not to be regarded as a workman within the meaning of section 2 (s) of the which (1) 736 definition has been adopted by the U.P. under which the case was started.
The same view was taken by the Labour Appellate Tribunal in the case of The Upper India Chini Mazdoor Union vs The Upper India Sugar Mills (1).
Dealing, with the case of Rati Rama Who was engaged as a Mali, the Tribunal rejected the employer 's contention that the said Mali was a domestic servant and observed that merely because the Company chooses to put Rati Ram on the work of a gardener with the Managing Director which the A Company is admittedly required to provide for and pay for, it does not follow that Rati Ram became a domestic servant.
It is remarkable that both these decisions which are directly in point, were under section 2 of the Act with which we are concerned.
In dealing with industrial dispute we are reluctant to interfere with the well established and consistent course of decisions pronounced by the Labour Appellate Court unless, of course, it is shown that the said decisions are plainly erroneous.
The next question which calls for our decision is whether the Malis are industrial employees within the meaning of the relevant G. O. The said G. O. opens with two operative paragraphs which are followed by the table of minimum basic wages prescribed by it and other paragraphs.
These first two paragraphs read thus : "(1) This order shall he deemed to have come into force with effect from December, 1, 1948 and shall, in respect of the matters covered by it, bind all the industries affected thereby and the workmen employed therein.
(2) The minimum basic wage payable to employees (industrial or clerical) in the various industries and undertakings specified in column 1 of, Table I hereunder shall, so long as this (1) 737.
order remains in force, be the amounts menti oned against them in column 2 or 3 thereof, as the case may be," Paragraph 3 prescribes the dear food allowance, and it is in respect of this claim made by the respondents that the appellant has raised the contention that this paragraph does not apply, because the Malis are not industrial employees.
It will be noticed that the first Paragraph makes it perfectly clear that the order binds all the industries affected by it and the workmen employed therein ; so that as soon as it is held that the Malis are workmen under section 2 of the Act, it would follow that the order would apply to the Malis.
In considering the present point.
it is necessary to bear in mind that this order has been issued in exercise of the powers conferred by clauses (b) and (g) of section 3 of the Act, and that clearly means that persons who are workmen under section 2 of the Act are referred to by paragraph I and there would be no escape from the conclusion that the order would apply to such workmen and the Industries that employed them.
It is, however, urged that in paragraph 2 the minimum basic wage is specified as being payable to employees, industrial, or clerical, in the various industries and the suggestion is that it is only employees who are either industrial or clerical to whom the order applies.
Industrial employees are not defined; but it is assumed by the appellant in urging this argument that the class of industrial employees would be narrower than the class of workmen covered by section 2 of the Act.
In our opinion, this argument is wholly fallacious.
It is clear that the second paragraph refers to industrial or clerical employees, because the table prescribing the minimum basic wages divides the employees into two categories, industrial and clerical.
It is only because his division is made by the table that for the 738 purpose of clarification, paragraph 2 mentions industrial or clerical in bracket after referring to the employees.
Besides it would be unreasonable to assume that when the order prescribed minimum basic wages for workmen to whom paragraph I expressly refers, it could have been intended that the said minimum basic wages should not be extended to some workmen falling under paragraph I because they do not fall under the category of industrial employees or clerical employees.
The scheme of the order is plain and unambiguous ; to all workmen failing under section 2 the benefits of the order are intended to be extended.
That is the view taken by the Labour Appellate Tribunal and, in our opinion, that view is obviously right.
If that be so, the validity of the order passed by the Labour Appellate Tribunal awarding the respondents ' claim for dear food allowance under paragraph 3 of the G.O. cannot be questioned.
It is true that in The Suti Mill Mazdoor Sabha Kanpur vs Messrs.
The British Indian Corporation Ltd. Kanpur (1), the Labour Appellate Tribunal appears to have taken the view that the expression " 'industrial employees" is limited to the class of employees who are employed directly or indirectly for the purpose of manufacturing process carried on by the factory.
In coming to this conclusion, the Labour Appellate Tribunal noticed the fact that the expression " 'industrial employees" had not been defined, but it was disposed to drive assistance from the definition of the word "worker" in the Factories Act in determining the scope of the expression "industrial employees".
No doubt, it was urged before the Tribunal that expression "industrial employees" should be understood in the same comprehensive sense as the word "industry" as defined in the industrial Disputes Act, but this contention was rejected by the Tribunal.
It seems to us that the Tribunal was in error in limiting the, scope of (1) 739 the expression. " 'industrial employees" by reference to the definition of the word "worker" prescribed by the Factories Act.
Indeed, it would be relevant and appropriate to refer to the definition of the word workman" under section 2 (s) of the , because the G.O. in question has been issued under the Act and the definition of a "work man" prescribed by section 2 of the Act as section 2 (s) of the would determine the true denotation of the expression "industrials employees".
We must accordingly hold that the Labour Appellate Tribunal was in error in accepting the very narrow construction of the expression "industrial employees" used in the Government order.
The next point which has been urged before us by Mr. Pathak is in regard to the decision of the Labour Appellate Tribunal awarding the benefit of leave to the respondents on the same lines as section 79 of the Factories Act.
Mr. Pathak attempted to argue that the claim for leave had been made specifically on the basis of provisions of the Factories Act and the U.P. shops and Commercial Establishments Act, and he suggested that as soon as it was found that these two Acts were inapplicable to the Malis the said claim should have been rejected.
The Labour Appellate Tribunal has, however, held that though the said two Acts do not apply, a claim for leave can be justified on the ground of social justice.
Mr. Pathak objects to this decision on the technical ground.
that the claim itself was based on the provisions of the said two Acts and no other.
This contention is not well founded.
It does appear that in paragraph 10 of the written statement filed on behalf of the respondents reference is made to the said two Acts but in the prayer clause the claim is made in general terms without reference to the Acts, and the reference itself is in general terms and makes no mention of the said two Acts.
Therefore, the technical ground urged by Mr. Pathak that the, 640 relevant claim was made on the provisions of the two specified Acts and should be rejected solely on the ground that the said Acts do not apply, cannot be sustained.
It was a general reference which the Adjudicator was called upon to decide and the fact that the said two Acts did not apply, cannot be said to rule out the said claim as to leave in limine.
Then Mr. Pathak was driven to contend that the ground of social justice given by the Labour Appellate Tribunal in support of its award is really not sound in law, and he referred us to the observations made by this Court on some occasions that the considerations of social justice 'were "not only irrelevant but untenable" vide J.K. Iron & Steel Co., Ltd. Kanpur vs The Iron and Steel Mazdoor Union, Kanpur (1), and Muir Mills Co., Ltd. vs Suti Mills Mazdoor Union, Kanpur.
(2), In our opinion, the argument that the considerations of social justice are irrelevant and untenable in dealing with industrial disputes, has to be rejected without any hesitation.
The development of industrial law during the last decade and several decisions of this Court in dealing with industrial matters have emphasised the relevance, validity and significance of the doctrine of social justice, vide Messrs. Crown Aluminum Works vs Their Workmen, (s) and The State of Mysore vs The Workers of Gold Mines (4) Indeed the concept of social justice has now become such an integral part of industrial law that it would be idle for any party to suggest that industrial adjudication can or should ignore the claims of social justice in dealing with industrial disputes.
The concept of social justice is not narrow, one sided, or pedantic, and is not confined to industrial adjudication alone.
Its sweep is comprehensive.
It is founded on the basic ideal of socioeconomic equality and its aim is to assist the removal of socioeconomic disparities and inequalities ; nevertheless, in dealing with industrial matters, it does not adopt a doctrinaire (1)[1955] 2 S.C.R. 1315.
(2)[1955] 1 S.C.R. 991.
(3)[1958]S.C.R. 651.
(4) ; 741 approach and refuses to yield blindly to abstract notions, but adopts a realistic and pragmatic approach.
It, therefore, endeavours to resolve the competing claims of employers and employees by finding a solution which is just and fair to both parties with the object of establishing harmony between capital and Labour, and good relationship.
The ultimate object of industrial adjudication is to help the growth and progress of national economy and it is with that ultimate object in view, that industrial disputes are settled by industrial adjudication on principles of fair play and justice.
That is the reason why on several occasions, industrial adjudication has thought it fit to make reasonable provision for leave in respect of the workmen, who may not strictly fall within the purview of the Factories Act or the Shops and Commercial Establishments Act.
We are, therefore, satisfied that there is no substance in the grievance made by Mr. Pathak that the Labour Appellate Tribunal should not have granted the demand of the respondents for leave on grounds of fair play and social justice.
The result is, Civil Appeal No. 481/1962 fails and is dismissed with costs.
Civil Appeal No. 480 of 1962 has not been pressed and is, therefore, dismissed.
There would be no order as to costs.
Appeals dismissed.

Output:
An industrial dispute was referred by the Government of Uttar Pradesh for adjudication to the Adjudicator, Kanpur.
,Me Adjudicator held that the Malis were workmen under the U.p.
but they were not Industrial employees and hence were not entitled to claim dear food allowance under the Government order dated December 6, 1948.
The claims of the Malis with regard to weekly holidays and leave with wages were also rejected by the Adjudicator.
725 Two crow appeals were filed against the order of the Adjudicator before the Labour Appellate Tribunal.
The appeal of the appellant was dismissed.
As regards the appeal of respondents, the Tribunal gave the Malis benefit of dear food allowance.
Their claim for leave with wages was also allowed on the ground of social justice.
However, their claim for weekly holiday was rejected.
The appellant filed a writ petition in the Allahabad High Court but that was dismissed as in fructuous.
The appellant came to this court by special leave.
The contentions raised by the appellant in this court were that the Malis were not workers within the meaning of section 2 of the U.P. , that Malis were not industrial employees within the meaning of Government order dated December 6, 1948, and hence were not entitled to dear food allowance and that the Labour Appellate Tribunal should not have granted the demand of the respondents for leave on ground of fair play and social justice.
Held that the Malis were workers within the meaning of section 2, of the U.P.
They were employed by the appellant, were paid by it and were, subject, to its control and supervision and *discharged the function of looking after the properties of the appellant.
Their conditions, of service were also determined by the appellant and the continuance of their service also depended upon the pleasure of the appellant.
The bungalows and gardens on which they worked were a kind of amenity supplied by the appellant to its officers.
Hence, the Malis were engaged in operations which were incidentally connected with the main industry carried on by the employers The case of the Malis was similar to that of the bus drivers.
The relation of the work carried on by the Malis with the industry was not remote, indirect or far fetched.
The employee who is engaged in any work or operation which is incidentally,connected with the main industry of the employer is a workman, provided the other requirements of section 2 (s) of the industrial Disputes Act are satisfied.
Held also, that the Malis were industrial employees within the meaning of the Government order dated December 6, 1948, and hence were entitled to claim the benefit of dear food allowance.
The Tribunal was in error in limiting the scope of the expression, " Industrial , employees" by reference to the definition of the word "worker" as given in the Factories Act, 726 Held also, that the Tribunal was justified in granting the demand of the respondents for leave on grounds of fair play and social justice.
The concept of social justice has now become such an integral part of industrial law that it is idle for any party to suggest that industrial adjudication can or should ignore the claims of social justice in dealing with industrial disputes.
The concept of social justice is not narrow, one sided or pedantic and is not confined to industrial adjudication alone.
Its sweep is comprehensive.
It is founded on the basic ideal of socioeconomic equality and its aim is to assist the removal of socioeconomic disparities and inequalities.
In dealing with industrial matters, it does not adopt a doctrinaire approach and refuses to yield blindly to abstract notions, but adopts a realistic and pragmatic approach.
It endeavors to resolve the competing claims of employers and employees by finding a solution which is just and fair to both parties with the object of establishing harmony between capita i labour and relationship.
Shri Bhikari, Kanpur vs Messrs. Cooper Allen & Co., Kanpur, ; The Upper India Chini Mills Mazdoor Union vs The Upper India Sugar Mills ; The Suti Mill Mazdoor Sabha, Kanpur vs Messrs.
The British India Corporation Ltd., Kanpur, ; J.K. Iron& Steel Co. Lid, Kanpur vs The Iron and Steel Masdoor Union, Kanpur, ; Muir Mills Co. Ltd. vs Suti Mills Mazdoor Union, Kanpur, ; ; Messrs. Crown Aluminium Works vs Their Workmen, ; and The State of Mysore vs The Workers of Gold Mines, [1959] S.C.R. 895, referred to.


Input:
N: Criminal Appeal No. 193 of 1979.
From the Judgment and Order dated 23 1 1979 of the Gujarat High Court in Special Criminal Application No. 8/79.
P. H. Parekh and M. Mudgol for the Appellant.
N. M. Phadke, section P. Nayyar and M. N. Shroff for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
Kanchanlal Maneklal Chokshi who is in preventive detention under the provisions of the and whose petition for the issue of a writ of Habeas Corpus was rejected by the High Court of Gujarat is the appellant in this appeal.
The High Court, while rejecting the petition, granted a certificate under Article 133(1) of the Constitution that the case involved a substantial question of law of general importance which needed to be decided by the Supreme Court.
The substantial question of law so certified was 'whether it is necessary for the detaining authority to consider whether a person should be prosecuted before an order of detention is made against him '.
The Division Bench of the Gujarat High Court in rejecting the particular contention of the appellant 5 475 SCI/79 56 purported to follow an earlier decision of another Division Bench of the same Court in Ashok Murlidhar vs State of Gujarat.(1) In that case Divan C. J., and Majumdar, J., though inclined to the view that the possibility of a criminal prosecution being launched should be present to the mind of the detaining authority, felt constrained to hold otherwise because of what, they thought had been decided by this Court in Hardhan Saha & Anr.
vs State of West Bengal & Ors.(2).
In our view, this Court did not say in Hardhan Saha vs State of West Bengal that the possibility of a prosecution being launched was an irrelevant consideration which need never be present to the mind of the detaining authority.
On the other hand, we do not also think that it is axiomatic, as sought to be contended by the learned Counsel for the appellant, that the detaining authority must invariably consider the possibility of launching a prosecution before making an order of detention and that, if not, the order of detention must necessarily be held to be bad.
In Hardhan Saha vs State of West Bengal, the vires of the provisions of the Maintenance of Internal Security Act was in question.
One of the contentions was that Section 3 of the Act offended Article 14 of the Constitution as it permitted 'the same offence to be a ground for detention in different and discriminatory ways '.
It was submitted that while A might be prosecuted but not detained preventively, might not be prosecuted but only detained preventively and C might be both prosecuted and detained preventively.
Dealing with the contention, a Bench of five judges of this Court explained the basic distinction between preventive detention and detention following upon conviction and observed: "The power of preventive detention is qualitatively different from punitive detention.
The power of preventive detention is precautionary power exercised in reasonable anticipation.
It may or may not relate to an offence.
It is not a parallel proceeding.
It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched.
An order of preventive detention may be made before or during prosecution.
An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal.
The pendency of prosecution is no bar to an order of preventive detention.
An order of preventive detention is also not a bar to prosecution".
57 The Court then referred to various earlier decisions and deduced the following principles: "First merely because a detenu is liable to be tried in a criminal court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Government from taking action for his detention under the Act.
Second, the fact that the police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under the Code of Criminal Procedure and even lodges a first information report may be no bar against the District Magistrate issuing an order under the preventive detention.
Third, where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of the State or the public order.
Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order.
Fifth, the order of detention is a precautionary measure.
It is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances".
Clearly, the Court did not lay down that the possibility of a prosecution being launched was an irrelevant consideration, not to be borne in mind by the detaining authority.
All that was laid down was that the mere circumstance that a detenu was liable to be prosecuted was not by itself a bar to the making of an order of preventive detention.
It does not follow therefrom that failure to consider the possibility of a prosecution being launched cannot ever lead to the conclusion that the detaining authority never applied its mind and the order of detention was, therefore, bad.
In Bhutnath Mate vs State of West Bengal(1) Krishna Iyer and Sarkaria JJ., declared the detention illegal for denial of opportunity to make effective representation.
On the question whether the failure of criminal prosecution was a bar to preventive detention the answer was a definite 'no '.
The learned judges however expressed 58 apprehension against the danger to the democratic way of life inherent in 'the potential executive tendency to shy at Courts for prosecution of ordinary offences and to rely generously on the easier strategy of subjective satisfaction '.
The question presently under consideration, namely, whether the failure of the detaining authority to keep in mind the possibility of a prosecution would necessarily vitiate the order of detention was not considered by the learned judges.
In Srilal Shaw vs State of West Bengal & Ors.(1), the prosecution was dropped and thereafter an order of preventive detention was passed.
The substance of the allegation against the detenu was that he was in unlawful possession of scrap metal belonging to the Railway.
The Court came to the conclusion that on the material which was available to the detaining authority, it was impossible to arrive at the conclusion that the possession of the petitioner was unlawful.
The Court found that the reason given by the District Magistrate for dropping the prosecution was unacceptable.
It was observed that the prosecution was in all probability dropped as the petitioner might have been able to establish that his possession of the goods was not unlawful.
The case struck the Court as a typical case in which for no apparent reason a person who could easily be prosecuted under the punitive law was being preventively detained.
It is seen that the decision turned on the peculiar facts of the case and throws no light on the question presently raised before us.
In Abdul Gaffer vs State of West Bengal(2) the order of detention was passed on the basis of a few instances of theft of Railway property for which the detenu could well and easily have been prosecuted.
The contention before the Court was that the order of detention was passed by the detaining authority mechanically without applying its mind to the question whether the facts disclosed the tendency of the petitioner to act prejudicially in the manner mentioned in the detention order.
The bald and sweeping allegation was made in the counter filed on behalf of the State that material witnesses were afraid of giving evidence in the Court against the detenu.
The material witnesses were members of the Railway Protection Force.
In that situation Sarkaria J., observed that the version given in the counter was incredible and could not be swallowed.
The learned Judge then observed "the conclusion therefore is inescapable that the petitioner has been proventively detained without application of mind as to whether the prosecution against him was foredoomed to failure on the ground of witnesses being afraid to depose against the detenu 59 in Court.
The impugned order has been made in a casual and cavalier manner".
It is seen that there was an express allegation that recourse was had to preventive detention despite the fact that criminal prosecutions could well have been successfully launched, based as the case was on the evidence of members of the Railway Protection Force.
The reason given by the State for taking recourse to preventive detention was found to be fantastic.
The decision thus stands on the special facts of the case.
In Dulal Roy vs The District Magistrate, Burdwan & Ors.,(1) the Court had to consider a situation where a month after a person was arrested in connection with a criminal case he was discharged but was taken into custody on the same day pursuant to an order of detention.
Krishna Iyer and Sarkaria, JJ., while observing that as an abstract legal proposition an order of preventive detention could be validly passed against a person in jail custody on the same facts on which he was being prosecuted for a substantive offence in a Court, pointed out that such an order of detention was readily vulnerable to the charge that the detaining authority was taking recourse to preventive detention in order to circumvent the penal law and the process of the Court.
The learned Judges were satisfied that the discharge of the detenu in a criminal case was not due to any shortcoming in the evidence or difficulty in its production in Court.
The order of detention was, therefore, quashed on the ground of non application of mind by the detaining authority.
In Salim vs State of West Bengal,(2) Chandrachud J., speaking for the Court observed that the fact that the detenu could have been prosecuted for the acts attributed to him did not affect the validity of the order of preventive detention.
The further question whether it was incumbent on the detaining authority to consider the question of possibility of prosecution was not considered by the Court.
In Ashok Murlidhar vs State of Gujarat, (supra) Divan C.J., and Majumdar, J., appeared to think that the Bench of five Judges of this Court which decided Hardhan Saha & Anr.
vs State of West Bengal & Ors.
, (supra) had taken a view different from that expressed in Bhuthnath Mate vs State of West Bengal, Abdul Gaffer vs State of West Bengal, Srilal Shaw vs State of West Bengal & Ors., Dulal Roy vs The District Magistrate, Burdwan & Ors.
, (supra) We do not think that there is any such conflict as thought by the Division Bench of the Gujarat High Court.
The principles emerging from a review of the 60 above cases may be summarised in the following way: The ordinary criminal process is not to be circumvented or short circuited by ready resort to preventive detention.
But, the possibility of launching a criminal prosecution is not an absolute bar to an order of preventive detention.
Nor is it correct to say that if such possibility is not present to the mind of the detaining authority the order of detention is necessarily bad.
However, the failure of the detaining authority to consider the possibility of launching a criminal prosecution may, in the circumstances of a case, lead to the conclusion that the detaining authority had not applied its mind to the vital question whether it was necessary to make an order of preventive detention.
Where an express allegation is made that the order of detention was issued in a mechanical fashion without keeping present to its mind the question whether it was necessary to make such an order when an ordinary criminal prosecution could well serve the purpose, the detaining authority must satisfy the Court that that question too was borne in mind before the order of detention was made.
If the detaining authority fails to satisfy the Court that the detaining authority so bore the question in mind the Court would be justified in drawing the inference that there was no application of the mind by the detaining authority to the vital question whether it was necessary to preventively detain the detenu.
The facts of the present case are that the grounds of detention served on the appellant contain a very elaborate statement of facts quite clearly pointing to an application of the mind by the detaining authority.
The appellant did not complain in the Writ Petition that the detaining authority had not applied its mind and in particular had not considered the question of the possibility of a prosecution.
Nor are there any facts appearing from the record which can lead us to infer that the detaining authority did not apply its mind to relevant considerations.
We do not, therefore, think that the order of detention is in any manner infirm.
The appeal is accordingly dismissed.
P.B.R. Appeal dismissed.

Output:
In Ashok Murlidhar vs State of Gujarat a Division Bench of the High Court thought that this Court in Hardhan Saha & Anr.
vs The State of West Bengal & Ors., ; laid down that where a person was sought to be detained preventively the possibility of a prosecution being launched was an irrelevant consideration which need never be present to the mind of the detaining authority.
Purporting to follow this decision another Division Bench of the High Court rejected the habeas corpus petition of the appellant who was in preventive detention under the provisions of .
The Division Bench certified that a substantial question whether it is necessary for the detaining authority to consider whether a person should be prosecuted before an order of detention is made against him needed to be decided by this Court.
In appeal to this Court it was contended on behalf of the appellant that it was axiomatic that the detaining authority must invariably consider the possibility of launching a prosecution before making an order of detention, in the absence of which the order of detention must be held to be bad.
Dismissing the appeal, ^ HELD: 1.
In Hardhan Saha 's case this Court did not say that the possibility of a prosecution being launched was an irrelevant consideration which need never be present to the mind of the detaining authority.
All that was laid down in that case was that the mere circumstance that a detenu was liable to be prosecuted was not by itself a bar to the making of an order of preventive detention.
It does not follow therefrom that failure to consider the possibility of a prosecution being launched cannot ever lead to the conclusion that the detaining authority never applied its mind and the order of detention was, therefore, bad.
[57 F G] 2.
The principles emerging from a review of the cases decided by this Court are that the ordinary criminal process is not to be circumvented or short circuited by ready resort to preventive detention, but that the possibility of launching a criminal prosecution is not an absolute bar to an order of preventive detention.
Nor is it correct to say that if such possibility is not present to the mind of the detaining authority the order of detention is necessarily bad.
However, the failure of the detaining authority to consider the possibility of launching a criminal prosecution may, in the circumstances of a case, lead to the conclusion that the detaining authority had not applied 55 its mind to the vital question whether it was necessary to make an order of preventive detention.
Where an express allegation is made that the order of detention was issued in a mechanical fashion without keeping present to its mind the question whether it was necessary to make such an order when an ordinary criminal prosecution could well serve the purpose, the detaining authority must satisfy the court that the question too was borne in mind before the order of detention was made.
If the detaining authority fails to satisfy the court that the detaining authority so borne the question in mind the court would be justified in drawing the inference that there was no application of the mind of the detaining authority to the vital question whether it was necessary to preventively detain the detenu.
[60 A D] In the instant case the grounds of detention served on the appellant contained a very elaborate statement of facts quite clearly pointing to an application of the mind by the detaining authority.
The appellant did not complain in his petition that the detaining authority had not applied its mind and in particular had not considered the question of the possibility of a prosecution nor were there any facts appearing from the record which could lead to the conclusion that the detaining authority did not apply its mind to relevant considerations.
The order of detention is not infirm in any manner.
[60 E F] Bhuthnath Mate vs The State of West Bengal, ; ; Srilal Shaw vs State of West Bengal & Ors., ; ; Abdul Gaffer vs State of West Bengal, AIR 1975 SC 1496; Dulal Roy vs The District Magistrate, Burdwan & Ors., ; ; Salim vs State of West Bengal; ; ; explained.