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REGISTERED NO. D. 222

The Gazette of India

PUBLISHED BY AUTHORITY

No. 18] NEW DELHI, SATURDAY, MAY 5,1973/VAISAKHA 15, 1895

Separate paging is given to this part in order that it may be filed as a separate compilation

PART II—Section 3—Sub-section (ii)

Statutory orders and notifications issued by the Ministries of the Government of India (other than the Ministry of Defence) by Central Authorities (other than the Administration of Union Territories)

CABINET SECRETARIAT

(Department of Personnel and Administrative Reforms)

New Delhi, the 24th April, 1973

S.O. 1229.—In exercise of the powers conferred by clause (b) and (c) of sub-section (1) of Section 3 of (he Public Employment (Requirement as to Residence) Act, 1957 (44 of 1957) the Government of India hereby substi- tute the following sub-rule (2) of rule 3 in place of the existing Rule 3(2) of the Himachal Pradesh Manipur and Tripura Public Employment (Requirement as to Residence) Rules, 1959:—

"(2) In the case of States of Himachal Pradesh for the purpose of sub rule (1) any person, who is em- ployed under the State Government in a post out- side Himachal Pradesh; or

who has got a permanent home in Himachal Pradesh but on account of his occupation he is living out- side the said state;

shall be deemed to be residing in Himachal Pradesh for the period during which he has been holding such post or living outside the State of Himachal Pradesh".

[No. 7/2/7l-Ests(C)]

S. KRISHNAN, Deputy Secy.

1693

11 G of 1/73—1

ORDER

S.O. 1231.—Whereas the Election Commission is satisfied that Shri Mani Ram, Son of Shri Amarnath, Village Tandoli, Post Office Panditial, District Kangra at Dharamsala, Himachal Pradesh, a contesting candidate for the election held in March, 1972, to the Himachal Pradesh Legislative Assembly from 38-Mangwal constituency, has failed to lodge an account of his election expenses, as required by the Rep- resentation of the People Act, 1951, and the Rules made thereunder;

And whcieas the said candidate, even after due notices, has not given any reason or explanation fot the failure and the Election Commission is satisfied that he has no good reason or justification for such failure;

Now, therefore, in pursuance of section 10A of the said Act, the Election Commission hereby declares the said Shri Mani Ram to be disqualified f jr being chosen as, and for being, a member of cithei House of Parliament or of the Legislative Assembly or Legislative Council of a state for a period of three years from the date of this order.

ELECTION COMMISSION OF INDIA

[No. HP-LA/38/72(3)]

ORDER

New Delhi, the 29th March, 1973

S.O. 1230.—Whereas the Election Commission is satisflod that Shri Munshti Ram, Son ot Shri Thellu Ram, Village Upcrli Badbopal Post Office Daroka, Tehsil Dehra, District Kangra, Himachul Pradesh, a contesting candidate for the election held in March, 1972, to the Himachal Pradesh Legislative Assembly from 38-Mangwal constituency, has failed to lodge an account of his election expenses in the manner required by law, as required by the Representation of the People Act, 1951, and the Rules made thereunder;

And whereas the said candidate, even after due notices, has not given any reason or explanation for the failure and the IJ lection Commission is satisfied that he has no sood reason oi justification for such failure;

Now, therefore, In pursuance oE section 10A of the said Act, the Election Commission hereby declares the said Shri Munshi Rnm to be disqualified for being chosen, as and for being, a member of eithei House of Parliament or of the Legislative Assembly oi Legislative Council of a state for a period of three years from the date of this older.

[No. HP-I A/38/72(4)]

ORDER

S.O. 1232.—Whereas the Election Commission is satisfied that Shri Inder Singh, Son of Shri Bcsar Ram, House No. 201, Ward No. 7, Uttar Samkhetar, Mandi Town District Mandi, Himachal Pradesh, a contcstilifi candidate for the election held in Mnrch, 197?- to the Himachal Pradesh

Legislative Assembly from 67-Joginder Nagar consti- tuency, has failed to lodge an account of his election c>nen- ses in the manner, as required by the Representation of the People Act, 1951, and the Rules made thereunder;

And whcicas the said candidate, even after due notices, hus not given any reason or explanation for the failure and Ihc hlection Commission is .satisfied that he has no good icason or justification for such failure;

Now, thcrefoic, in 'puisuance of section 10A of the said Act, the Election Commission hereby declares the said Shri Inder Singh to be disqualified for being chosen as, and for being, u member of either House of Parliament or of the Legislative Assembly or Legislative Council of a state for a period of three yenrs from the date of this order.

[No. HP-I A/67/72(5)l

New Delhi, the 21st April, 1973

S.O. 1233.— In exercise of the powers confeired by sub- section (i) of section 13A ot the Representation of the People Act, 1950, the Flection Commission, in consultation with the Government of Madhya Pradesh, hereby nominates Shri B. R. Dube, Secictary to the Government of Madhya Pradesh, Law and Legislative Department, as the Chief Llectoial Officer tor the Slate of Madhva Pradesh with effect from the 1st May, 1973 and until further orders lire Shri I,. B Sarje granted leave.

[No. 154/MP/731

New Delhi, 23rd April, 1973

S.O. 1234.—In pursuance of section 106 of the Represen- tation of the People Act, 1951, the Election Commission hereby publishes the order dated the 27th October, 1972 of the High Court of Madhya Pradesh, Jabalpur, in Election Petition No. 5 of 1971.

IN THE HIGH COURT OF MADHYA PRADESH,

JABALPUR

Before Honourable Shri Justice Surajbhan Giover.

Election Petition No. 5 of 1971

Udhay Singh aged about 44 years son of Shri Diwan Singh Raghuvanshi. Advocate, resident of Ashok- najjar, tahsil Ashoknagar, District Guna Petitioner.

VERSUS

Shri Madhav Rao Scindia aged about 26 years, son of Late H. H. Jiwaji Rao Scindia, resident of Jai Vilas Palace, Jaiyendra Ganj, Gwalior-1, Tahsil and Dis- trict Gwalior, P.O. Laskar City Respondent

Petition under Section 81 of tbe Representation of the People Act, 1951

1, Shii A. B. Mishra. 2, Shri P. L. Dubey,

3, Shri B. R. Nahata, 4, Shri J. M. Sood, & 5, Shri A, S. Jha.

Advocates

Counsel for the Petitioner

1. Shri K, A. Chitle-y,

2. Shri H, G. Mishra, 3. Shri A. B. Mathur, 4. Shri A. K. Chifley, 5. Shri Ranoji Rao Shinde, &• 6. Shri P. L. Mishra. Advocates Counsel for the Respondent.

ORDER

This is an election petition filed by Udhay Singh Raghuvanshi, an elector of Guna Parliamentary constituency, under section 81 of the Representation of People Act, 1951 (hereinafter referred to as 'the Act¹), challenging the elec- tion of the respondent, Shri Madhav Rao Scindia, who secured 2,09,950 votes and was declared elected from the aforesaid constituency by the Returning Officer, oji the 11th of March, 1971, at the mid-term Parliamentary Lok Sabha election of 1971, to be void on the ground that he had committed cor- rupt practices enumerated in paragraph 10 of the petition.

2. There were six candidates who filed their nomination papers for the election of the House of People from Guna Parliamentary Constituency and out of these, Sharwa Shri Shiv Pratap Singh and Gayaprasad duly withdrew their candidature after their nomination papers were found in order after their scrutiny, and the remaining four candidates, (1) Shri Madhav Rao Scindia, (2) Shri Deorao Krishnarao Jadhav, (3) Shri Narayan Singh 'Albela', and (4) Shri Bundel Singh, ultimately contested the election and secured votes as ollows :—

1. Shri Madhav Rao Scindia ... 2,09,950 2. Shri Deorao Krishnurao Jadhav ... 68,860 3. Shri Narayan Singh 'Albela . , 17,656 ... 7,686 4. Shri Bundel Singh

Shri D. K. Jadhav was sponsored by the Indian National Congress led by Shri J. Ram and the respondent obtained support of Bhartiyii Jan Sangh and contested the election on its symbol, 'The Lamp'. Shri Narayan Singh 'Albela' was sponsored by Hindu Mahasabha and Shri Bundel Singh was an independent candidate.

3. It is alleged by the petitioner that the election of the respondent is void on account of corrupt piactices committed by the respondent, his election agent and by other persons with the consent of the respondent or his election agent and they are as follows :—

(a) That the respondent and/or his election ajent had incurred and/or authorised expenses in connection with the election between the dates of publication of the notification calling the election, i.e. the 27th January, 1971 and the date of declaration of the result, i.e. the 11th day of March, 1971, exceeding the prescribed limit of expenses which is Rs. 35,000 as provided under-section 77(3) of the Act read with Rule 90 of the Conduct of Election Rules, 1961, regarding the use of helicopter, by himself as detailed in paragraph 10(1) of the petition and hiring charges inclusive of fuel and all expenses which comes to not less than Rs. 60,000.

(b) That Shrimati Vijaya Raje Scindia, mother of the respondent, who lives jointly with him, visited various places in connection with his election as detailed in paragraph lOfT) (2) of the petition with his consent and the expenses incurred for the use of helicopter comes to not less than Rs. 15,000.

Fhese two items make a total of Rs. 75,000.

purposc is flcticious and it does not represent a true state oC affairs. It is also said that this method was adopted by the respondent to save himself from the charge of corrupt nractice provided under section 123(6) of the A;t, ;is the helicopters were, in fact, hired and procured by the respon- dent and not by the Bhartiya Jan Sangh or Shri N, K. Shej- walkar, and were in his exclusive control in the Jai Vilas Palace area at Gwalior.

5. The second-corrupt practice alleged against the respon- dent is that he used a large number of motor vehicles, in any case, not less than 18 which were hired and procured either by himself or by his election agent, Shrl Ranoji Rao Shinde, a resident of Gwalior, or by the consent of either of them and the expenses on this item would approximately amount to not less than Rs. 25,000, whereas the expenses shown in the election return in this connection is only Rs. 9,281.57 P. The places and the dates on which these vehicles were used aic detailed in paragraph IO(If) of the petition. The petitioner amended his petition vide Court's Order dated 2-8-1972 and alleged that Shri Multanmal Surana, Ex. M.L.A. of Ashoknagar, and Shri Shiv Pratap Singh M.L.A., a candidate who withdrew from the election, acted as agents of the respondent during the election and that Shri Multanmal Surana was in charge of respondent's elec- tion for Ashok Nagar Pargana while Shri Shiv Pratap Singh was in charge of Guna Pargana, and both of them had in- curred expenses on hiring of motor vehicles, their fuel con- sumption, maintenance and running under the authority and with the consent of the respondent and/or his election agent.

6. The last allegation of corrupt practice alleged against the respondent is regarding undue influence under section 123(2) of the Act as detailed in paragiaph 10(111) (TI) of the petition and which is as follows :—

(i) That on 23rd of January, 1971, the respondent anil his associates, Laxminarayan Gupta, MX,A. Sushil Verma M.L.A., Jagdish Ashann and Dhiraj Singh and others who were staying in the Dak Bungalow, Pichhore (Shivpuri) threatened Laxman Shastri and a dozen of citizens of Pichhore to vote for the res- pondent, when they had gone there to clarify the position regarding the promises made by the res- pondent on previous occasions and were not ful- filled. Similarly, it happened with Shri Ravi Shankar Dixit, Principal, Chnatrapal Degree College, Pichhore, on the same day,

(ii) That in the midnight of 24th of February, 1971, the workers of the respondent of village Sahodari forcibly entered the houses of Harijan voters, namely Kutariya, Nirpatiya and others and crimi- nally intimidated them not to vote for the congress candidate, Shri D, K. Jadhav.

(iii) That on the date of poll, i.e. 1st of March, 1971, when about 100 Harijan Voters of Sirsi Pachhar had gone to cast their votes at police station Saluai, tahsif Ashoknagar, these Harijan Voters were cri- minally intimidated with the consent of the respon- dent not to vote for the congress candidate;

(iv) That on or before 22-2-1971, Mohan Prasad Ojha, a Congress worker of village Umri, tahsil Guna was threatened at pistol point by the workers of the respondent or with his consent by Shri Shiv Pratap Singh and others of Umri not to vote and convass in favour of the Congress candidate;

(v) That on 21-2-1971, Khemchand Jain, a Congress candidate of village Pironth, tahsil Kolaras, was threatened and criminally intimidated by Rao Saheb Ram Singh and others, the workers of the respon- dent with his consent with dire consequences if he voted for the Congress candidate.

7. The petitioner, therefore, prayed to declare the election of the returned candidate Shri Madhav R,,o Scmdia. to he void on account of the aforesaid corrupt practices alleged against him.

8, The respondent, by way of his written statement, denied the commission of any of the aforesaid corrupt practices alleged against him, either by himself or by his election agent or with the consent of any one of them. The respondent, while denying the allegations, made in paragraphs 10 of the petition, as regards incurring of expenditure exceeding the prescribed limit, has avened that all the political parties opposed to the Indian National Congress led by Shri J. Ram had practically participated in the election foi reasons of their own quite independently of his election campaign. He emphasised that the Bhartiya Jan Sangh incurred expenses for its own purpose to propagate its own political ideology and policies and it was distinct from his personal election campaign, He also avcircd that the workers of the Bhartiya Jan Sangh did not work for his election nor they worked as his agent. He also said that the House of Scindia as well as he himself had been very popular with the subjects of the erstwhile State of Gwalior and all the nine candidates, who contested the Parliamentary Lok Sabha mid-term election, and who had the support of the respondent and his mother, came out successful and not a single candidate lost the election. As the respondent had his own independent elec- tion machinery for the election campaign, it did not involve any large expenditure in excess of the prescribed limit.

9. As regards hiring of the helicopters and payments made therefore, it is averred that the allegation pertaining to it is vague and lacing in material particulars and further more that the helicopters were neither hired nor procured by the respondent but he himself did accompany one or the other leader of the Bhartiya Jan Sangh Party in-conncction with the campaign of the Party within the State of Madhya Pradesh and other States as well. He also denied that the helicopters were either exclusively or mainly used in con- nection with his election propaganda nnd wherever he want, he want to propagate the ideology and policies of the Jan Sangh Party. He also denied having visited the following places shown in paragraphs 10 of the petition on the dates noted against them :—

Dates

Plages

10-2-1971 16-2-1971 18-2-1971 23-2-1971 26-2-1971

28-2-1971

Raghogarh Chanderi and Amola Isagarh Guna and Chanderia Kumbhraj, Khonkar, Taka- neia, Har-Ki-Mahoo, Kheri- Khatta. Pichhorc (Shivpuri).

In brief, he denied having either hired or procured the heli- copters and incurred the expenditure of Rs. 60,000. He also denied that his mother travelled in a helicopter for his elec- tion and, on the other hand, he has said that she want inde- pendently for the propaganda of the Bhartiya Jan Sangh party. He admitted that the helicopters used to be kept in the premises of the Jai Vilas Palace for the convenience and at the request of the Bhartiya Jan Sangh Party and they were not in the exclusive control either of the respondent or his mother. He also denied that Rs. 15,000 weie incurred as expenses by his mother in connection with his election as alleged in the petition and the Bhartiya Jan Sangh party had incurred the expenditure in the interest of the Party and not as an agent of the respondent nor with his consent or authority.

10. As regards the use of motor vehicles, he has averred that this allegation lacks in material particulars and more- over hiring of the vehicles and their use for his election as alleged in paragraph 10(11) of the petition is untrue and whatever vehicles were used for his election, their expenses have been shown in his election return. He has also denied that either Multanmal Surana or Shiv Pratap Singh acted as his agent or they were authorised to hire any vehicle and purchase fuel for his election. On the other hand, he has said that they were working on behalf of the Jan Sangh Party.

11. As regards the last allegation of undue influence, he has denied it totally alleging that the allegations made in this behalf are vague and suffer from material particulars.

12. The respondent filed an intcilocutory application (No

58 of 1972) dated 3-8-1972 saying that the petitioner, in

paragraph 10(111) ll(IV) of his petition, has made an alle- gation of corrupt practice against Shri Shiv Pralap Singh, who withdrew his candidature after the scrutiny of his nomi- nation paper was held valid on 4-2-1971, and, therefore, he having not been joined as a party to tfie petition by reason oL non-compliance with the provisions of section 82(b) of the Act, the petition should be dismissed under section 86(1) of the Act. The petitioner first expressed that he did not want to file a reply but ultimately he filed one dated 28-8-1972. He submitted in his reply that he has pleaded no corrupt practice against Shri Shiv Pralap Singh in paragraph 11 (IV) of his petition and according to him, this paragraph contains two instances of undue influence, one is against one Mohan Prasad Ojha, a Congress worker who was said to have been threatened at pistol point with the consent of the respondent by his workers and the second instance was that Shri Shiv Pratap Singh and others of Umri were threatened not to vote and convass in favour of the Congress candidate, Shri D. K, Jadhav, and none of these two allegations Hre within the mischief of section 123(2) read with section 2(C) of the Act. It was, therefore, not necessary to join him HS a party in this petition.

13. The respondent also filed another interlocutory appli- cation (No. 76 of 1972) accompanied by a true copy of the petition said to have been received by the respondent, under section 87 read with section 137 of the Act, saying that it is noticed that there are erasures and initials at three places in paragraph ll(iv) of the petition, but even then it is clear that this part clearly makes out that an allegation of corrupt practice was pleaded against Shri Shiv Pratap Singh, and, therefore, it was prayed that the petitioner be summoned for re-cross-examination on the point. The petitioner filed its reply dated 12-9-1972 denying the allegation made by the respondent, alleging that there are no erasures what-so-ever in the original petition and particularly so in paragraph ll(iv) of the petition. According to him, the three so-called erasures are merely scorings by ink duly initialled by the petitioner at the time of filing the petition which is nor- mally done to correct the typing errors. He also urged that no case for recalling the petitioner for purposes of re-cross- examination is made out.

14. The following issues were framed on the pleadings of

the parties :— ISSUES

(1) (a) Has the respondent incurred or had authorised expenditure which was more than the prescribed limit laid down under the Representation of the People Act, 1951, or the Rules made thereunder as detailed in para 10(1) and 10(11) of the Petition?

(b) Do the allegations made suffer from lack of

material particulars?

(2) (a) Did the workers of the respondent with his con- sent thereaten the voters with injury, and crimi- nally intimidated them in case they voted for D. K. Jadhav as detailed in paragraph 11 of the petition, and if so, what is its effect?

(b) Does this allegation suffer from lack of material

particulars?

(3) Is the petition time-barred?

(4) To what relief, if any, the petitioner is entitled to?

15. Issue No. 1 (a) This issue is based on the allegations made by the petitioner in paragraph 10(1) of the petition. Issue No. 2(a) is based on paragraph 11, wrongly numbered as 10(111) of the petition. It relates to expenses alleged to have been incurred by the respondent and his election agent m contravention of section 77 of the Act read with Rule 90 of the. Conduct of Election Rules, 1961. It says that the respondent had used four helicopters from time to time in connection with his election and the expenditure incurred or authorised by him and his election agent had not been in- cluded the return of his election expenses, which should not have been less than Rs. 60,000 inclusive of hiring charges, fuel and all other expenses. It was also alleged that the mother of the respondent, Shrimali Vijia Raje Scindia, had also used the helicopter in connection with the election of her son and the expenses incurred or authorised in this connection must not be less than Rs. 15,000 which do not iind mention in the election return, F.x-P-2. Jt is also alleged in paragraph 10(TI) of the petition that not less than 18 motor vehicles were used for the purpose of election of the respondent as detailed therein and the amount spent there- fore would not be less than Rs. 25,000 which is not shown in the election return. In paragraph li (equivalent to Paragraph 10(111) wrongly numbered) it is further alleged that the workers of the respondent with his consent threatened the persons whose names find place in this paragraph of the petition with dire consequences in case they voted for the rival candidate, Shri D. K. Jadhav and, therefore they were guilty of coirnpt practice under section 123(2) of the Act.

16. The respondent, in his written statement, as aforesaid, has denied the used of helicopters exclusively or mainly for the purpose of his election and his reply is that these heli- copters were hired by the Bhartiya Jan Sangh Party for propagating essentially and mainly their policies and these helicopters were used not only in Madhya Pradesh but in Rajnsthan and TJttar Pradesh also. He also said that Shrimati Vijia Rajc Scindia did not work for his election at his instance and/or with his consent. He has, however, admitted that the helicopters were kept in the premises of Jai Vilas Palace at Gwalior at the request of the Office bearers of Bhartiya Jan Sangh to his mother for the con- venience of the Party. As regards hiring of motor vehicles is concerned, the reply of the respondent is that only those vehicles were used which find mention in the return of his election expenses and the rest of the vehicles alleged to have been used in connection with the election of the respondent were never hired by the respondent nor with his consent or the consent of his election agent and also not under the authority or any one of them. He has also denied the allegation of corrupt practice of undue influence as alleged by the petitioner,

17. A corrupt practice of incurring excessive expenditure is defined in section 123(6) of the Act. According to sec- tion 77 of the Act, every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorised by him or by his elec- tion agent between the date of publication of the notification calling the election and the date of declaration of the result thereof, both dates inclusive. The maximum amount of election expenditure, which may be incurred by a candidate for the parliamentary election is laid down in Rule 90 of the Conduct of Election Rules, 1961, which is Rs. 35,000. It is clear from Sec. 123(6) and 77 of the Act that in order to be a corrupt practice, the excessive expenditure must be incurred or authorized by the candidate or his election agent in connection with an election. An expenditure incurred by a third person, who is not authorised by the candidate or his election agent is not a corrupt practice within the meaning of the Act. If any authority is needed for the proposition, I may refer to Rananiaya Singh v. Baijnath Singh (1955 S.C.R. 671-A.I.R. 1954 S.C. 749). Also sec Ramdayat v. Brijra) Singh (A.T.R. 1970 S.C. 110) and Mubarak Muzdoor v. Lai Bahadur [1958(20 H.L.R. 176 (All)] cited with approval in Macmi Patodia v. R. K. Birla (A.I.R. 1971 S.C. 1295) along with Rananiaya Singh v. H'aijnath Singh (A.I.R. 1954 S.C. 749) wherein it was held that expenditure incurred by any other agent or person without anything more need not be included in the account of return as such incurring of expenditure would be purely voluntary (Para, 17 Page 1302). It is hardly necessary to say that irregularities in maintaining accounts of election expenses is not a corrupt practice. It may be even false in material particulars and this will not make any difference. A corrupt practice as aforesaid is com- mitted only when the prescribed limit is exceeded.

18. It is well established as what standard of proof is re- quired to establish a corrupt practice. A corrupt practice is akin to a criminal charge and it is for the election peti- tioner to prove corrupt practice pleaded by him and he has to discharge the burden satisfactorily and the evidence re- quired by the petitioner in an election case to prove the corrupt practice must be cogant end conclusive. In doing so, he cannot depend on preponderance of probabilities and suspicion in such cases does not matter. Their Lordships of the Supreme Court in Magraj Patodin's case (supra) in para- graph 15 have observed as follows : —

"In the present appeal we do not propose to go into the question whether the evidence adduced by a petitioner in

an election case should establish the case beyond any reason- able doubt but suffice it to say that that evidence must be cogent an conclusive. It is true that as observed in Dr. M. Chcnna Rcddy r. V. Ramchandra Rao, Civil Appeal No. 1M9 of 1968, D/-17-12-1968(SCJ that a charge of coriupl prac- tice cannot be equated to a criminal charge in all respects. While the accused in a criminal case can refuse to plead and decline to adduce evidence on his behalf and yet ask the prosecution to prove its case beyond reasonable doubt such is not the position in an election petition. But the fact remains that burden of proving the commission of corrupt practice pleaded is on the petitioner and he has to discharge that burden satisfactorily. In doing so he cannot depend on preponderance of probabilities. Courts do not set at naught the apparent verdict of the electorate except on good grounds."

Their Lordships further observed in paragraph 32 ai follows :—

"It is true that many times corrupt practices at election may not be able to be established by direct evidence ifut the commission of those corrupt practices may have to be inferred from the proved facts and circumstances but the circumstances proved must reasonably establish that the alleged corrupt practice was committed by the returned candidate or his election agent. As mentioned earlier preponderance of probabilities is not sufficient."

LSee also Dr. M. Chenna Reddy v. V. Ramcluindra Rao (.968 Dobia's Election Cases, 337 SC; J/igju iin^h v. Kart.ir .Si/ii'/i (A.I.R. 1966 Supreme Couit; 773) and lupnnnath v. A'. R. Dcilimukh 1966(9) Dobia's ["lection Cases, 45"", SOI.

19. Now the question arises as to whether the respondent or the Bhartiya Jan Sangh hived the helicopters alleged to have been used in the election in question and who paid the hire charges for the same. The next question that will arise for consideration would be that in case it is found that the Bhartiya Jan Sangh hired and paid the hire churges, whether the helicopters were used for propagating the policies of the Bhartiya Jan Sangh and whether it acted as an agent oS the respondent for making him successful at the election

20. The petitioner an P.W. 37, in paragraphs 15 and 16 o( his statement has very clearly stated that cis legJrds the hiring of helicopters and their use as well as payments made for the same, he received information fiom Sudur Jadhav and he had no personal knowledge about it. It is pertinent to note thai Sardar Jadhav is not produced as a witness on behalf of the petitioner. The Petitioner has also admitted that he made no enquiries about the hiring and payments made in this connection from any one else. The petitioner has examined in support of this corrupt practice Harbanshlal (P.W.I), Yogender Sud (P.W. 2), Wing Commander H. K. Patct (P.W. 3), Pilot Officers—Chandra Srnha Sampat (P.W. 4), Contain M. S Kapoor (P.W. 5), K. K. Deb iPVV. o). S. S. Gill (P.W. 9)—who were in charge of the flights and Harbansh Singh (P.W. 7) M. N. Khan (P.W. 8) and Shri Ram Cambata (P,W. 38—examined on commission),

21. The respondent as R.W. 1 himself in paragraph 2 of his statement has clearly stated that he did neither engage helieoptei for the tnid-lerm I ok Sabha election nor did he enter into any agreement either with Sanghi Aviation, Tndore or Delhi or Cambata Aviation Private Limited, Bombay, for his election campaign. He, of course, has admitted in paragraph 4 of his deposition that on the re- quest made by Shri Shejwalkar, the then treasurer of the M.P. Jan Sangh, he had initiated the talk with Shri Sam Cumbata (I\W. 38) for the purpose of hiving of the helicoD- ters by the Jan Sangh. The respondent has also examined R. C. Khandelv,al (R.W. 2) and Homi E. Bhakka (Bakka) (R.W. 3).

27. Harbanbhlal (P.W. 1) was in charge of the flying con- trol Aerodrome, Maharajpura, at the relevant time and he has proved the entries in the Air Traffic Control Log book, Ex. x P-26 to Ex. P-66, made by either Shri Joseph or him- self which show (be ilights of the four helicopters in ques- lion. He has deposed that necessary information received from the palace on telephone was recorded by him as well as Shii Joseph and ic was passed to the concerned area con- trol. These are marked as Ex. s P-70 to P-105.

23. The travel by a helicopter is not denied by the respon- dent. He has stated in paragraph 6 of bis statement [hat he had travelled the whole area forming the old Madhya Bharat and Bhopal regions and according to him, he took his jour- ney for the purpose of campaign on behalf of the Jan Sangh with the consultation of the Jan Sangh workers.

24. Yogender Sud (P.W. 2) has stated that on 27th February, 1971, 600 litres of aviation gasoline was supplied to M/s Helicopter Services at Usha Kiran Hotel at Gwalior vide Ex-P-107 and 5000 litres of aviation gasoline vide Ex P-J08. He has no personal knowledge about the transaction nor Ex. P-108 is in his handwriting. All that he has said is that he contacted Jaisingh who was in charge of Palace Garage and collected some empty barrels. Tt has no bearing on the question involved.

25. Wing Commander H. K. Patel (P.W. 3) was the plan- ning manager of the Helicopter Services. He has deposed that two helicopters were supplied to M/s. Cambata Avia- tion, Bombay in February and March, 1971 and their num- bers were VT-DKB and VT-DEN. The captain for the first one was Wing Commander Kapoor and for the second one, Capt. Sampat. He has also filed the abstracts of journey log book, Ex. P-18 and Ex. P-19, which show the journeys or moverrients or any flight taken by the helicopters and he has further stated that to the best of his knowledge, his Com- pany charged Rs. 1200 per hour from M/s. Cambata Aviation. As stated by him in paragraph 19 of his deposition, he is unable to say as to who made the payments for the bills of the officers who stayed in Usha Kiran Hotel.

26. Chandra Sinha Sampat (P.W. 4), a pilot officer, is also unable to say as to who had borne the boarding and lodging expenses which were incurred in connection with his stay at the Usha Kiran Hotel, Gwalior. He has also no knowledge as to who hired the helicopters and who made the pay- ment.

27. Captain M. S. Kapoor (P.W. 5) also does not know what was the daily charges for the stay of the officers in charge of the helicopter VT-DKB and according ot him, the Company made the arrangement for their stay. In paragraph 11 of his statement, he has deposed thai lo the best of his knowledge, neither Rajmata nor the respondent had flown in the aforesaid helicopter.

28. The evidence of K. K. Deb (P.W. 6) is also not use- ful in this connection as he operated in Bhind area and not in Shivpuri and Guna area.

29. The statement of Harbansh Singh (P.W. 7) is also not useful to the petitioner. He is a managing partner in the Associated Automobiles Gwalior. He has stated that M/s. Sanghi Aviation, Indore and Delhi purchased 10 barrels of aviation fuel from the Indian Oil Corporation Ltd. on 22nd February, 1971 and the quantity of fuel was 2000 Kgs. and the payment was made vide Ex. P-116. He of course has said that he had written a letter for the return of empty barrels to the Chief Secretary to the respondent vide Ex. P-121. He has also stated that he ananged for the fuel as he was approached by a representative of M/s. Sanghi Aviation, Indore and he received the payment from he representative.

30. M. N. Khan (P.W. 8) was at the relevant time a Depot Superintendent on behalf of the Indian Oil Corporation at Gwalior and he received 5000 litres of aviation oil vide Ex. P-108. He is not in a position to tell as to who had placed the order for the fuel and who paid for the same. He also deposed that the fuel in question was being taken by the representative of the heli- copters at Gwalior but he did not remember whether those representatives were those of Sanghi Aviation Indore or Cambata Private Ltd. Bombay. His evidence does not in any way cannect the respondent either with the purchase of fuel for the use of the helicopters in question oi in making the payment for the same.

31. The evidence of S. S. Gill (P.W. 9) is also of no con- sequence as regards either for the hiring or making payment for the use of helicopters.

32. Now, only remains ihe evidence of Shri Sam Cambnta (P.W. 38) who is the Director of M/s. Cambala Aviation Private Limited, Bombay. He has deposed that he had an initial talk with the respondent regarding the supply of

helicopters for election work and he was told that the res- pondent and his mother, who '.vcre being sponsored by the Jan Sungh Party, would contest (he election. In paragraph 13 of his statement, he has deposed that Wing Commander Hosbali, who unfortunately died on 24th of May, 1971, finalised the negotiations but there is no written record with the Company. Wing Commander Hoshali was then the Commercial Manager of tho Company and it was one of his functions to finalise the contract. He has also deposed that the operation of the helicopters was for Madhya Pradesh and R.ijir.than and he is no sure whether any of the helicopters operated in Utter Pradesh. In paragraph 16 of his state- ment, he has deposed that uparl from the initial talk with the respondent; he had no personal knowledge of the subse- quent negotiations and he also testified that the payment was made at Gwalior and the details of payments were know to Shri R. S. Cambata and the accounts department of his Company The evidence of Shri Cambuta (P. W. 38) does not in any way connect the respondent with cither hiring of the helicopters or in making tho payments for the same. On the other hand, the statements of R.C. Khandel- wal (R.W. 2 and Bakka (R.W. 3) clearly show that the helicopters in question were hired by the Jan Sangh Party and the payment also was made by the Party. R. C. Khan- delwal (R.W. 2) was at the relevant time working as a Secretary for M/s Sanghi Brothers, Indore, Private Ltd. in the year 1971. Sanghi Aviation is a division of the said Company which had helicopters hi 1971. He has deposed that he entered into an agreement with Madhya Pradesh Jan Sangh vide Ex. R-18 which Js on record of Ex. P-No. 4 of 1971 and its true copy is marked in this case as Ex. R-23. According to him, the original agreement was signed bv Shri Shejwalkar as well as by him in the presence of each other at Gwalior. He has also deposed that Shri Shejwalkar gave an advance of Rs. 40,000 in cash in this behalf and he passed a receipt Ex. P-24, the original of which is Ex. P- 20 filed in Election Petition No. 4 of 1971, and It bears his signature. He has also deposed that he received the balance of Rs. 51,375 at Bhopal by a cheque from some one at the Jan Sangh Office and the original receipt Ex. R-22 is filed in Election Petition No. 4 of 1971 and its true copy is Ex. R-25 in this case. The original receipt bears the seal of Sanghi Brothers and it bears the proper stamps. He has further stated that both the payments were made to him and they are shown in the cash book for the year 1970-71. At page 485 of the account book, there is an cntrv for the payment of Rs. 40,000 in cash and it is dated 12-2-1971. The original account book was marked Ex. R-26 and its true copy is also marked in this case as Ex. R-26. He proves that the entry in question is in the handwriting of Deshraj Duwa who was the accountant of the Company at the relevant time and he has identified his signatures. He has further deposed that the payment of Rs. 51,375 finds place in the cash book of Delhi office on 4th of November, 1971. This entry is in tho handwriting of Seth, an account of tho Delhi office. The original entry is marked Ex. R-27 in E.P. No. 4 of 1971 and its true copy is also marked in this case as Ex. ti- ll. There is further corroborating evidence that both the payments are entered in the ledgers for the year 1970-71 and 1971-72. These entries are marked as Ex. R-28 and Ex. R- 29, respectively. He also testified that the entry Ex. R-29 is in the handwriting of Seth. He has also deposed that these books wero kept in the regular course of business and they are audited by the chartered accountant and this toal amount of Rs. 91.375 finds place in the balance sheet for the year 1970-71 which is marked as Ex, R-30.

30. In paragraph 9 of his statement, he has clearly stated that Sanghi Brothers (Indore) Private Ltd. has no business relationship with the respondent and this is what the respond- dent himself has also said in his deposition. He has also, in paragraph 10, made it clear that he had no negotiations whatsoever regarding the contract in question with the res- pondent and he has gone to such a length to say that he may not even be able to recognise him. In paragraph 12 of his statement, he has also made further cle.tr that he had no negotiations as regards the hiring of the helicopters with anybody else except with Shri Shejwelkar and in paragraph 13 he has made it clear that the correction in Ex. R-18 filed in Election petition No. 4 of 1971 at portion A to A was made while changing the word 'President' to the "Treasurer" in his own handwriting at the tune when the agreement was executed and its true copy Is marked Ex. R-23 in this peti- tion.

34. Shri Nahata, learned counsel for tho petitioner, has vehemently criticised the evidence of R.C. Khandelwal (R.W. 2) on the mound that the entries made in tho cash book and the ledger should not be relied on as some pages in the cash book arc unnumbered and there are some erasures In some pages and some pages have been added afterwards and further more, the receipt for the amount received waa given on an ordinary paper and not on the numbered printed re- ceipt of the Company. He also urged that the accounts are not kept irregular course of this business with the result that R.C. Khandelwal is not a reliable witness and these entries were made to help the respondent in his election after tHti election was over.

35. Shri K. A. Chitley, learned counsel on the other side, has contended that the agreement in question was entered into with Shri Sheiwalkar at Gwalior which bears the signa- tures of both of them. R. C. Khandelwal (R. W. 2) is an independent witness and when he gave the statement he was not in the services of M/s, Sanghi Brothers (Indore) Private Ltd., but he was on his way to join as Financial Director with Khandelwal and Herrman -electronics Privnte Limited, Bombay and his oral evidence finds support in the entries made in the cash book as well as the ledger with the result ihat ho is a reliable witness.

36. I have given my careful thought to the contention raised before mo by Shri Nahata and in my view, there is nothing to discredit the statement made by R. C. Khandelwal (R. Yv. 2) as he has been cross-examined at length and he has fully met the objections raised by him as regards the issuance of the receipt for the nmount received by him not on a printed receipt in paragraph 25 of his Statement by saying that if he had taken trje receipt book from the Head office, it would not have been possible for the Accountant to issue receipts in the office as he had to issue 20 to 25 receipts daily. He has also absolutely denied the suggestion that Ex. R-18 and Ex. R-19 in E.P. No. 4 of 1971 and the duplicate receipt marked Ex. P-289 in this case were made after the election petition was filed and he has also explained as to how the word 'Indore' in the duplicate copy, Ex. P-291, was not typed while it exhlsted in the original vide his statement in paragraph 31 of his deposition. It is worthy of note that Snnghi Brothers (Indore) Private Ltd, having whatsoever no business con- nection with the respondent why they would go to such a length to oblige him by making false entries in the account books either at Indore or Delhi, There is no material whatsoever to discredit the statement made by R. C, Khandelwal (R.W. 2) and I find him a reliable witness and the criticism levelled against his testimony is without any substance.

37. Homi E. Bhakka (Bakka) (R.W. 3) was at tho rele- vant time working with Cambata Aviation Private Limited as an account and he has deposed that the Bhartiya Jan Sangh had nrnde the payments to his Company for hiring the helicopters in 1971. According to him, Ex. TR-I-C which is Ex. R-31 in B.P. No. 4 of 1971 indicated the payment of Rs. 1,40,000 by the Bhartiya Jan Sangh by a demand draft drawn on the Central Bank of India and Rs. 200 was paid in cash. This entry is in the handwriting or one G. O. Misfrrv who was his assistant accountant at that time and he has identified his handwriting. Tho corresponding ledger entry is reflected in tho Sundry Creditors and Customers Ledger for the year 1970-71 at page 113 of the said register. This entry is marked as Ex. R-2-C which was already marked as R 32 in E.P. No. 4 of 1971. Tins entry is also in the hand- writing of G. G. Mistry which he has identified.

38. The second and the balance payment made by the Bhartiya Jan Sangh is shown in the receipt side in the cash book of Cambata Aviation Private Limited ior the year 1971-72 on 30-4-1971 at page 7 of the said register. This entry shows the payment of Rs. 2,16,000 by a cheaue drawn on the Central Bank of India. The cheque was discounted with the Union Bank of India, Bombay and an amount of Rs. 2 15,568 was credited to ihe account of M/s. Cambata Aviation Private Limited and the difference of the bank charges came to Rs. 432. This entry in the cash book is in his own handwriting and is Ex. R-3-C, which was Ex. R- 33 in E.P. No. 4 of 1971. The corresponding ledger entry is reflected in the Sundry Creditors and Customers Ledger for the year 1971-72 which is marked as Ex. R-4-C equivalent

to Ex. R-34 in E.P No. 4 of 1971. This entry in the ledger is also in the hand writing ol G. G. Mistry. He has also deposed that all these account oooks are maintained in the ordinary course or business and the account books for the years 1970-71 have been audited and for the year 1971-72 were under the process of auditing when they were produced before the Court in Election Petition No. 4 of 1971. In paragraph 7 of his statement, ho has testified that Wing Com- mander Hoshali was the Commercial Manager of M/s. Cambata Aviation Private Limited and Ex. R-28 and Ex. R- 29 in E.P. No. 4 of 1971, the true copies of which were marked by the Commissioner as Ex. R-5-C and Ex. R-6-C, respectively bear the signature of Hoshali. He has deposed that he was acquainted with the signature of Wing Com- mander Hoshali and both the receipts were sigred oy him and they are on the letter-head of M/s. Cambata Aviation Private Limited. Ex. R-5-C is a receipt issued for the pay- ment received by the said firm from Bhartiya Jan Sangh which relates to the cash book entry in Ex. R-l-C and the ledger entry in Ex. R-2-C. Skiilaily, Ex. R^5-C relates to cash book entry Ex. R-3-C and the ledger entry Ex. R-4-C. He has also stated that the cheque, demand draft, and the cash of Rs. 200 were handed over to him by the then Ma- naging Director, Shri R. S. Cnmbata for oeing deposited in the Bank.

39. Shri Nahata, learned counsel for the petitioner, has also criticised the evidence of H. K. Bakka and uiged that it should not be accepted as reliable as no written agreement was filed on record to prove that it was entered into by Wing Commander Hoshali with Jan Sangh. He also further urged that Bakka produced only the ieceipt side of the cash book: and not the expenditure side and according to him, the cash book appears to be a newly prepared one with a view to meet the case of the respondent and it is a fabricated one. H. E. Bakka (R.W. 3) has been cross-examined at great length and it will suffice to say that whatsoever objection Shri Nahata had made was fully met in the reply given by him in his cross-examination. In reply to the question put to him in paragraph 14, he has stated as follows:—

"Question : Why the amounts due from Jan Sangh have not been reflected in the ledger for 1970-71 when

the account books have been audited?

Answer : The amounts which have been received from Bhartiya Jan Sangh have been credited to their account. The debits to be raised to their account have not been done so. The audit for the year 1970-71 is carried on. The entries pertaining to the cash books (receipts and pay- ments) have been audited. Cetrain other journal entries which have duly to be passed before the audit can be said to be complete had not been done when T left."

H. F. Bakka (R. W. 3) at the time had made the state- ment was not in the service of M/s. Cambata Aviation Pri- vate Ltd. but was serving with Messrs. M. S. Cusder and Company Private Limited and in his cross-examination, he has fully explained as to why some of the pages of the cash book were not numbered. Hir evidence too is worthy of credence and the criticism levelled against him by Shri Nahata is not of any consequence.

40. It is notworthy that it wns for the petitioner is prove that the helicopters were, in fact, hired by the respondent and the payment was also made by him but the petitioner neither made any efforts to make an enquiry in this connec- tion nor he has examined Sardar Jadhav to prove this fact, who was his source of information. On the other hand, the respondent not only has denied the allegation made against him in this behalf orally but has also produced two witnesses, R. C. Khandeiwal (R. W. 2) nnd H. E. Bakka (R. W. 3) along with the documentary evidence which I find reliable. I, therefore, come to the conclusion that the helicopters were hired by the Madhya Pradesh Jan Sangh and the pay- ments regarding hire charges were made by it as aforesaid.

41. The next question that arises for decision in this con- nection is whether the Jan Sangh hired these helicopters for the use of the Party propaganda and propagation of their policies or primarily or principally for the promotion of the interest of the returned candidate. The petitioner (P. W. 37) in addition to himself has examined Dhanjiram constable (P.W. 12), Kaiiash Chandra Shanrm (P. W. 13), Sardar Avtar Singh (P. W. 14), Miijib-ul-Rahman (P. W. 15). Hai- bhajan Singh (P. W. 16), Dig Vijay Singh (P. W. 19), Abdul Khan (P.W. 20), Meharbansingh (P.W. 21), Shanti- lal Jain (P.W. 23), Tarajan (P.W. 25), Virendra Singh (P. W. 25) and Santkumar (P. W. 28) to prove the speeches made by the respondent in connection with his election and the respondent, in rebuttal, has examined himself as R. W. 1.

42. The petitioner as P. W. 37, in paragraph 5 of his statement has said that the Jan Sangh workers did not work for the respondent in his constituency for his election and the helicopters were not used for the purpose of propagation of the political Ideologies of the Jan Sangh but it was for the election of the respondent. In paragraph 9 of his state- ment, he has further deposed that he had kept no note re- garding the visit of Rajmata and the respondent of Ashok- nagar and the speeches made by each one of them. He also did not ask any one to give him the gist of the speeches made by each one of them nor did any one give him any such gist. In paragraph 11 of his statement, he has admitted that he worked for Sardar Jadhav, a rival Congress candi- date and he did inform him about the corrupt practice said to have been committed by the respondent but for reasons best known to him, Sardar Jadhav was not produced as a Witness, It is pertinent to note that the petitioner is an active Congressman. He was interested in the election of the rival candidate, Sardar Jadhav and his evidence has, therefore, to be scrutinised carefully.

43. The petitioner has heard no speech made either by the respondent or his mother. So as regards the speeches said to be made by the respondent, he has no personal knowledge. His own witness, Captain Sampat (P. W. 4), who was flying the helicopter VT-DEN, which was the only helicopter used by the respondent mainly in his constituency, has deposed in paragraph 12 of his statement that he always carried two passengers in his each flight when on campaign, as detailed in Ex. P-17, and there was an emblem of 'Deepak' put out- side his helicopter. In paragraph 13, he has said that at 99 places out of 100, where he had landed, there used to be a saffron flag of Jan Sangh waiving at the place of landing. He also stated that he used to be given a day previous to the flight a programme of the places to be landed. He has also said that whenevei he flew, a programme for flying was given by the Ex. Maharaja and sometimes he was called by the Ex. Maharaja and the whole programme used to be discussed with the Jan Sangh leaders and *vhen he gave his final approval for the feasibility for the flight, it used to be finalised and then the programme used to toe given to him. He has also deposed that the programme was to be finalised sometimes by the respondent with the previous con- sultation of the Jan Sangh members and sometimes the con- sultation took place in his presence. In paragraph 15, he has also said that once Shri Ramnath Goenka accompanied the respondent and at another tune, there was one Scheduled caste candidate around the Ujjain area. On 21st February, 1971, Ramnath Goenka accompanied the Ex-Maharaja from Mungawali to Abdulla Ganj and Rajmata had never flown in his helicopter. As regards the speeches, made by the res- pondent, he has deposed in paragraph 16 as follows:—

"Sometimes I had heard the speeches made by the Ex- Mahuiaja Gwalior. It is correct to say that he advocated for the general policies of the Jan Sangh. He also criticised the Congress Government policies. It is correct to say that people gave him great reve- rence. I cannot say whether trie Ex-Maharaja at any time in his speech asked the people to vote for himself."

In paragraph 19 of his statement, to the court question, he has made it clear that he is definite that the respondent had never flown alone during the election campaign.

44. Captain Kapoor (P.W. 5) was in charge of helicopter VT-DXB and he has stated that he did not fly in the Guna area. In Paragraph 12 of his btatement he has deposed that on 27-2-1971, there is a mention in his log book, Ex. P-16 (fried in E.P. No. 4/71) that pamphlets were dropped locally and it is correct, though they were of Jan Sangh, Tn para- graph 13, he has also testified that there were always two passengers with him and those were of Jan Sangh. Shri Atal Bihari Bajpai had also flown with him and at most of the places, he had landed, he found yellow flag waiving and the area for the land was earmarked with vcllovv flac nnd 'Deepak' symbol.

45. Captain K- K. Deb (P. vV. 6), a pilot officer in the service of Messrs. Sanghl Aviation, Delhi, has deposed that he did not operate in Shivpuri and Guna region and in paragraph 13, he has aJso similarly said that two person had always flown with him and they were also introduced to him as Jan Sangh leaders.

46: S. S. Gill (P. W. 9), another pilot officer in charge of helicopter VT-DTW, had flown to different places vide Journey Log Book, Ex. P-129 and Ex. P-130 (filed in Elec- tion Petition No. 4 of 1971) copy of which is Ex. P-129 and Ex. P-130 in this case which he has proved. He has also deposed that Ramnath Goenka, Ex-Maharaja of Nar- singh diyh, Shri Atal Bihari Uajpai, Huknmchand Kachh- waha had travelled with him and he also always carried two passengers in his flight and the passengers flying intro- duced to him as members of the Jan Sangh. In paragraph 10 of his statement, he has deposed as follows:—

"I always carried in the flight two passengers. The persons travelling were introduced to me because it is a general practice. They were introduced as Jan Sangh leaders. 1 was asked by my Company t6 fly to Bhopal and when T landed at Indore for fuel, one person accompanied me and he told me that he was from Jan Sangh. I do not remember his name. When I landed a bit late at Indore, I was told by the Aerodrome Officer that there was an enquiry from Jan Office at Indore. When I landed at Bhopal, I met about 8 or 10 persons at the aerodrome. 1 was introduced with Sardar Angre there and the other persons were with saffron caps and party badges of Deepak."

In paragraph 11, he has again said that he does not know who prepared the plan for flying but the person who gave t!ie plan to him was from Jan Sangh party.

47. These pilot officers are the witnesses produced by the petitioner himself and they are independent witnesses and there is no reason to disbelieve any one of them and I find that whatever they have stated is reliable.

48. Dhanjiram constable (P, W. 12) has stated that the respondent accompanied by his wife had gone by a helicop- ter at d P.M. to Dongeshwar and addressed an audiance say- ing that he was standing for the election and they should vote the person to whom they may consider fit. He did not make a note of the speech. He also did not make a re- port at the police station though he was on duty on that date. Hi* evidence otherwise is of no consequence.

49. Kailssh Chandra Sharma (P.W. 13) is an Advocate and an interested witnesses as he had worked for the election in question for the rival candidate. In paragraph 9 of hi:, statement, he has stated about the speeches made by the Rajmata and the respondent, \ccording to him, Rajmata addressed for about two and a half hour while the speech of the respondent lasted for about an hour. It is ridiculous to believe that both the mother and the son would only say, if he was at all present in any of the meetings, that their ancestors had served them well and they should vote for the respondent. His evidence is of no consequence simply on the ground as stated by him in paragraph 7 that he had no talk with the petitioner during the mid-term Lok Sabha election of 1971, add that he had also no talk with him regarding the election petition and (hut he only came to the Court in obedience of the summons served on him. It is surprising that how he came to give evidence to this effect. In para- graph 15, to a court question, he has admitted that speeches made by both of them must have been published in the local papers, Dainik Bhaskar, published from Gwalior and it gave the gist of the speeches made by them and it was almost a reproduction of their speeches but it is surprising that the petitioner has not been able to produce the best evidence on record.

50. Sardaf Avtar Singh (P.W. 14), who was also work- ing for the rival candidate, has deposed in paragraph 2 of his statement that the respondent had said in his speech to vote for him as his ancestors had done good work for them.

11 G of 1/73—2

He also critisised the Congress and looking to the cross- examination in paragraph 4, his evidence also suffers from the same infirmity that he did not inform the petitioner that he had heard the respondent's speech as deposed to by him in his statement, although he had occasion to meet him.

51. The statement of Mujib-ul-Rahman (P.W. 15) also suffers from the same infirmity as deposed to by him in paragraph 7 o! his statement that he had no talk with the petitioner regarding the raid-term Lok Sabha election. It is really surprising, how he came to appear as his witness. More- over, in paragraph 9, he admits lhat he is nn illiterate person and does not remember the date of arrival of the respon- dent nor the month.

52. Harbhajan Singh (P. W. 16) in paragraph 2 has stated that the respondent had addressed an audiancc consisting of about 100 persons by saying that his ancestors had served the public and they should vote for him. He is also an active worker of the Congress and supported the rival candidate and his evidence also requires proper scrutiny. In paragraph 6 of his statement, he has admitted that he did not hear the respondent saying the audience to remove the Congress and to form the Government of Jan Sangh because of the noise in the crowd and if it is so, then it is difficult to say as to whjt the respondent had said, whether he could and did understand even the gist of the speech said to have been made by the respondent.

53. Dig Vijay Singh (P. W. 19), appears to be & reliable witness. He is. an hx-Raja of Raghogarh, a Jagir, in the erstwhile State of Gwalior and according to him, he was very close to the Gwalior house. In paragraph 2 of his statement, he has deposed as follows:—Wnat Respondent had said in a meeting in his presence;

"I am contesting the election for the first time and that the Congress Government was corrupt at the Centre, and therefore, we should form our group of our own Government and this is why 1 should be voted for. "In my speech, I said, "Looking to oui close relations with the Gwalior house and that the respondent was contesting the election for the first time, therefore, we should vote for him". I did not belong to any political party in the year 1971 February."

In paraKraph 5 he has said that he had visited with the respondent different places and in paragraph 6 he has further said that It was true that in the erstwhile State of Gwalior, all the candidates set up for the Lok Sabha as well as Vidhan Sabha elections by the respondent and his mother were practically all successful and the same thing has been stated in paragraph 7 of his statement. In paragraph 10, he has further said that whenever Rajmata and the respondent had addressed the meeting, it attracted a large crowd and there were large number of Jan Sangh flags and the local Jan Sangh loaders also used to be present and they also used to address the meetings. So far as he knew, the res- pondent is. a strong supporter of Jan Saivgli. His evidence belies the evidence of the aforesaid witness who have only deposed thaat no Jan Sangh workers was present at the meeting and no Jan Sangh flags were displayed there and also that the respondent did not say anything about the Jan Sangh. In paragraph 11, he haa made it clear that when- ever he had accompanied the respondent, he criticised the Congress and supported the Jan Sangh. Although after the mid term Lok Sabha Election, he has joined the Congress party, his statement as a whole appears to be reliable.

54. Statement of Abdul Khan (P.W. 20) is believed by the state- ment of Shri Dig Vijay Singh (P, W. 19), Ex-Rao Raja of Raghogarh and according to him, the Ex-Rao Raja was present in the meeting about which he had made the state- ment.

55. Meharbansingh (P. W. 21) has also stated the same thing that the respondent came to Guna in the third week of February, 1971 and mode a speech criticising the Congress and praised the work done by his ancestors and this is what the Rajmata had said when she came to Guna in the first week of February, 1971. In paragraph 6 of his statement, he has deposed that he had told the petitioner regarding the

meetings he had attended of hi* own accord and no enquiry to this effect wai made by him. He has also further said that he had no knowledge that the petitioner wanted to file an election petition. It appearas un-natural and his evidence does not inspire confidence. It is pertinent to note that there was a local paper Vir Abhimanyu published from Guna as stated by him to a Court question in paragraph 9. He also said that he remembers to have read in the Dainik Bhaskar as well ai in Hamari Awaz the gist of the speeches made by them and it appear* to bo natural. Even so, there seems no reasons why the copies of these daily papers were not produced in Court which would have been the best evidence to give the gist of the speeches said to have been made by the respondent and his mother. In the circumstances, his evidence does not inspire confidence.

56. Shantilal Jain (P.W. 23) in paragraph 2 of his state-

ment has deposed as follows:—

"The respondent had said, 'There were closed relations between the Raj Family and the public. Congress has done great harm to you, My mother has com- mended me to stand for the election for your ser- vice from this constituency. I am sure that you people would vote for me, and for that purpose he exhorted the audiance to raise their hands and majority of the person thus raised their hands".

He has admitted in paragraph 9 of his statement that he had submitted to Ratanlal Lohati, who was then the Congress President of the District Congress Committee, Guns, a report regarding the visit of the respondent and the meeting held by him and the total number of persons who had gathered there. This report should have been the best evi- dence for the purpose but for an interested witness as he is, it looks that he has not made a truthful statement and the petitioner did not produce the best evidence which could have been available to him for the purpose.

57. The statement of Tarachand (P.W. 24) is also of no consequence. He has stated that the respondent addressed the meeting on 4th Februarv, 1971 which he could not have done so, as the election campaign was not allow- ed on that day and according to him, the Sub- Inspector of police and other police officers were also present and it is really surprising that no report to this effect was made. His evidence appears to be a tutored one and no reliance can be placed on it.

58. Virendra Singh (P.W. 25) has deposed that Rajmata had come alone by a helicopter in the first week of Febru- ary, 1971, to his village Badora and addressed a meeting saying that in their rule, people were happy and thus re- quested the public to vote for her son who contesting the election. His evidence is also of the same type and more- over, there is no material to show that whatever she did, at all with the consent of the respondent or his election agent.

59. Santkumar (P.W. 28) in paragraph 4 of hi3 statement has only stated that in 1971 election, Jan Sangh candidates were successful because of the influence of the respondent and it is correct to say that the house of scindias was very popular in his region. Even the petitioner has admitted this in paragraph 20 of his statement.

60. The respondent ns R.W. 1,, in paragraph 9 of his

itatement has stated as follows:—

"The pattern of my speeches was practically the same throughout the area I had covered including my constituency and that I was talking about the cor- ruption in the Congress and about the mal-admi- nistration resulting in the present conditions and, therefore, I pleaded to build up a viable alternative to the Congress, (Whatever I meant by Congress, I was a Congress led by Jagjivan Ram) to help and strengthen Jan Sanfih. I did not make any personal appeal to the people to vote for me a* I had known the area so well and there was no need for it as at reflected in the election result. I have confidence in my electorates."

In cross-examination, in paragraph 73, he has further

stated as follows:—

'The particulars of the Jan Sangh Ideology which I was propogating at that time is as follows:—

(i) Ceiling and tho floor for agriculture holdings

(II) Encouragement for Small Scale and Medium

Scale Industries,

(iii) De-licensing of Industries.

(iv) Cutting down the foreign aid,

fv) No strings attached to foreign aids,

(vi) Judging foreign policies on merits and not aa a member of any foreign culture heritage and taking

(vii) Revival of our Indian culture heritage and taking

pride in it, and others."

61. Now, the question arises as to when a political party

1* said to be acting as an agent of the candidate for the election campaign.

62. Shri Nahta, learned counsel for the petitioner, has very strenously argued while inviting my attention to Ex. P-9, Ex. P-10, Ex. P-14, Ex. P-15 and Ex. P/2/10 in Ex. P-2 that the respondent used helicopters VT-DEN sixty hours in Guna constituency out of the 90 hours it had flown and taking into account the speeches said to be made by him, he was propagating for his own cause and not for the ideology or policy of the Jan Sangh as alleged by him. He also in- vited my attention to Ex. P-67 and Ex. P-69 that the pro- gramme for the flight was given by the Chief Secretary of the respondent and he further urged that even if the payment for the use of the helicopter was made by the Jan Sangh, which is not very material, and as the respondent had can- vassed for himself, the hire charge* spent for the use of the helicopters should be deemed to have been incurred by the respondent. He also further urged that Rs. 5,000/- paid vide voucher No. 155 to Shrl Shejwalkar and said to be paid for the notional benefit derived by the respondent is a mande- uvre to curtail his expenses which he spent for his election. He also invited my attention to the fact that there is a vari- ance between the pleadings of the respondent and his state- ment he had made in this connection a.% R.W. 1.

63. Shri Chitley, learned counsel on the other hand has urged that the mid-term pool was held in 1971 for the gene- ral parliamentary election and the respondent was verv popular in the earstwhile State of Gwalior, therefore, the Jan Sangh party wanted to take full advantage of his popu- larity with the result that the helicopters were made avail- able to the respondent to make him more mobile for tne nurpose of propauating the ideologies nnd policies of the Jan Sangh and this is what the respondent has said in his written statement. He also stressed that according to the elec- tion law, there is no restriction placed on the expenses to be incurred by a political party for carrying on the pro- paganda relating to the principles and the policies for which the Party stands and it cannot be regarded as expenses In- curred for and on behalf of the candidate. He also argued that the question of agency will not arise unless a request is made either by the candidate or his election aj?ent to advance the interest of the candidate mainly and this has not been proved by the petitioner. He has also referred to page 73 of Parker's Conduct of Parliamentary Elections and stressed that what is required to be considered in such cases is the intention or the motive of a person and it is required to be seen what was the dominant motive. He also referred to Helsburry's Laws of England (Third edition, volume 14 at pages 177-179. He has also cited in support of his contention rulings reported in R. V. Tronoh Mines ltd. (1952 Alt E. R. 697), Mast Ram Harnam Singh Sethi (7 E. L. R. 301 at page 310), Prabhudas v. Jorsang (13 E. L. R. 110), Mubarak Mazdoor v. Lai Bahadur (20 E. L. R. 176 at page 219), B. Rajagopola Rao v. N. G. Ranga (A. I. R. 1971 S. C. 267-para 32), Ramdayal v. Brliraj Singh (A. I. R. 1970 S. C. 110) and Nagraj Patodia v. R. K. Birla (A. I. R. 1971 Supreme Court, 1295).

64. I have given my careful consideration to the conten- tions raised before me and I am clear in my mind that in this case, there is no material on record to show that the

Jan Sangh Party acted as an agent of the respondent for hi* election work for the reasons I presently show,

65. Section 100(1) of the Act says that High Court shall declare the election of the returned candidate to be void if it is proved that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent. In a case reported in Mast Ram v. Harnam Singh Sethi (7 E. L. R. 301), the test applied in such like cases was whether the expenses to be borne by the political party is of the candidate is as follows:—

"The test in this case was held to be whether the main object of the meeting was to promote the election of the candidate and that the line must be drawn between meetings called with llie direct object of advancing the election of the candidate, and mee- tings called for another object from attendance upon which the candidate only derived some indirect or remote advantage."

In Mubarak Mazdoor v. Lai Bahadur (20 E. L. R. 176), their Lordships of the Allahabad High Court observed at pago 219 as follows:—

'We may also take notice of an argument which was advanced by Mr. Pathak on the basis of the word ''incurred or authorised" used in Section 77 of the Act. The Act uses the word "incurred or authorised" and neither of them can mean the -same thing as the expression "with the consent of" The word "authorised" is not equivalent to the expression "with the consent or in the knowledge of", so that the law now requires something more than more consent or knowledge of a candidate to the incurring of expenses and that something is that the expen- diture must have been authorised by him or by his election agent."

66. It is clear from the ratio of the rulings cited above that in each case, it is a question of fact whether the main object of the meeting was to promote the political opinion of the party or to promote the election of the candidate. In order to determine this question, it will be proper lo consi- der oral as well as documentary evidence on record. It is not in dispute that four helicopters were hired for the elec- tion work. I have given my findings, as aforesaid, that the helicopters in question were hired by the Jan Sangh party and the payment was made by the Party. It is also in evi- dence that out of the four helicopters, helicopter VT-DZN was used by the respondent mostly in Guna constituency. Ex. P-15, Ex. P-16, Ex. P-17, Ex. P-155 Ex. P-128 Ex. R-7, Ex. R-8 Ex. P-129 and bx. P-130 show that the other helicopters moved all over the State and e*en went outside the State -of Madhya Pradesh.

67. The evidenif of the pilot officers of the helicopters, as discussed above, does not need repetition. They are inde- pendent witnesses and not connected with any of the politi- cal party. They have clearly deposed that the progiammc of the flights used to be given either by the Ex-Maharaja of Gwalior or any member of the Jan Sangh Party and two persons always travelled in the helicopter and the respon- dent advocated the general policies of the Jan Sangh and criticised the policies of the Congress and this is what has been advocated in Ex. P-2/10 of t x. P-2. The rest of the wit- nesses examined by the petitioner as rejyaids the speeches made by the respondent being partisan witnesses, their evidence was scrutinised carefully because the partisan atmosphere continues even after the election. It is true that oral evidence cannot be brushed aside when such an evidence i" highly probable and the same is corroborated by unimpeachable documentary evidence, but this is not the case here and there is no tall tale evidence of the documents brought on record.

68. It has come in evidence of the petitioner that the respondent and his mother were very popular in the region which formed the castwhile State of Gwalior, so much so that any candidate who was set up by them got elected. It is also an evidence of the petitioner that the respondent suc- ceeded in the election on his own merit and not on account of the Jan Sangh Party. The evidence of the petitioner, on Ihe other hand, shows that there was not much of the in- fluence of the Ian Sangh in the Guna constituency. If it is so, there was all the more reason to us" the Influence pf th" respondent to make the Jan Sangh popular in this consti- tuency. From the analysis of the evidence on record, it is quite obvious that because of the respondent's popularity, the Jan Sangh Party wanted to utilise the influence of the res- pondent as well as that ot hi& mother to it" maximum bene- fit. With this end in view, the helicopters were hired so that the respondent may be made more mobile to propagate the policies of the Jan Sangh. The fact that the helicopters were kept in the palace compound points to this direction and also to their safeparking there.

69. The respondent himself as R. W. 1 in paragraph 9 and 73 of his deposition has deposed that he was propaga- ting the ideologies and policies of the Jan Sangh. As re- gards the payment of Rs. 5,000/- to Shri Shejwalkar vide Voucher No. 155 of Ex. P-2, the respondent has said in paragrph 12 of his statement as follows:—

"I suggested to Mr. Shejwalkar that I wanted to make some token payment for the use of the helicopter for any marginal benefit which people might think that I had derived and he proposed a sum of Rs. 5,000/- on an ad hoc basis and I make the, payment accordingly. I wanted to clear my position no that any outsider might not have any doubt aboiV iti use. In my opinion, I did not derive any benefit out of the use of the helicopter. The pay- ment was made as a notional benefit and it was made on ad hoc basis as there could not have been any real benefit".

In paragraph 13, he has again said that the Party wan getting the benefit by the use of the helicopters and not him- self as he was rendered more mobile. It is also pertinent to note that there is no evidence on record to suggest that oither the respondent or his election agent made a request to the Jan Sangh to do election work for him. It should be borne in mind that a political party, setting up a candidate, cannot be deemed to be the agent of the returned candidate in all cases. The crucial test is whether there has been an employment or authorisation for the agent by the candidate to do some election work or the adoption of the work when done. It is true that in order to prove that a political party or an association was an agent of the candidate, it is neces- sary to prove either by the direct evidence or it may be in- ferred from proved facts and circumstances which must necessarily establish that the dominant idea of the political party was to support the candidature of ine candidate and not to promote the political opinion of the party. On the proper analysis of the evidence on record, as well as from a perusal of the documents, it is clear that there is neither direct evidence to prove the agent nor the evidence if read in the light of probabilities and attending circums- tances to lead to the conclusion that there was an agency for the purpose of election work between the Jan Sangh and the respondent. On the other hand, as aforesaid, the evidence of the petitioner supports the plea raised by thr respondent in this connection. The petitioner, therefore, has not proved the allegation of corrupt practice said to have been comitted by the respondent, as stated in paragraph 10(1) of his petition.

70. As regards the allegation made in paragraph 10(1) (2) of the petition, there is no evidence to show that Shri- mati Vijja Raje Scindia want to all the places mentioned in this paragraph and that too with the consent of the res- pondent. Tho respondent, in his statement, has clearly stated that his mother did not work for his election v.ith his consent. So this allegation is not proved.

71. The next allegation as given in paragraph 10 (II) of the petition is regarding the use of motor vehicles. The petitioner, in order to prove this corrupt practice has exa- mined Kailash Chandra (P. W. 13), Sardar Avtar Singh (P. W. 14), Hamesh kumar Deoaliya (P. W. 22) Harish- chandra (P. W. 26), Haturam (P. W. 27) Santkumar (P. W. 28), Kabulchand Khera (P. W. 29), Subrati (P W. 30) Satyapal (P. W. 31), and Nandeoaro Bhonsle (T. W. 32), Multanmal Surana (P. W. 33) who is said to be a star witness, Babukhan (P. W. 34), Shiv Prasad (P. W. 35), Shankerrao Bhonsle (P. W. 36) and the peti- tioner himself, as (P, W. 37). The respondent has examined himself as R. W. 1 in rebuttal.

72. Shri Nahata, learned counsel for the petitioner, has contended thnt the letters marked Ex. P-224 to Ex. P-256

show that Multanmal Surana (P. W. 33) was put in charge of the organisation of the election work of the respondent and he was connected with its eveiy p!m/c and, therefore, the four jeeps hired by him and the payments made for such hire and the fuel expenses must have found place in the election return. Thus Multanmal Surana was his agent for the purpose of his election and that being so, whatever payments were made for hiring of the jeeps as well as foi fuel consumed to the firm Rajaram Pannalal at Ashoknagar should be taken as money spent by him for hiring of the jeeps and for fuel consumption on behalf of the respondent and it is included in the return of election expenses of the respondent, he is guilty of the corrupt practice under Sec- tion 123 (6) of the Act. He also invited my attention to certain vouchers of Ex.. P-2 to show that Om Prakash Bhargva was working for the election of the respondent and as such he was authorised to spend money on his be- half. He also stressed that the statement of Multanmal Su- rana is corobboratcd by Shir Prasad (1J. W. 35) who was maintaing the accounts for the respondent regarding Ashok- nagar constituency and the statement of both these witnesses coupled with the statement of Santkumar (P. W. 28), who supplied petrol along with the statements of the owners of the jeeps and two drivers, it is satisfactorily established that the respondent had spent nearaboi.it Rs. 25,000/- on this item which he has not included in his election return. He also pointed out that the cash book Ex. P. 268 produced by the respondent in connection with the maintaining of election accounts is not the real cash book and he has also pointed out certain defects in it to show that the election account was not properly maintained. Shri Nahata has cited in support of his contention rulings reported in M. S. Souri- muthu Udayar v. K. Pandaral (20 t-_ L. 256), Kata.ia Takandas v. Pinto Frederick Michael (IB K. I R. 403 and Karan Singh v. Jamuna Singh (15 E. L. R. 370).

73. Shri Chitley learned counsel on the other hand has urged that the petitioner, when for the first time amended paragraph 10(11) of the petition on 21-12-1971, only included Multanmal Surana for the purpose that his jeep was used on hire at Ashok-nagar by the respondent and it was as late as in August 1972 when he amended subsequently this paragraph of the petition vide order of the Court date 2-8-1972, and he introduced that Multanmal Surana was the agent of the respondent for the purpose of his election. He has also fur- ther urged that the petitioner has cooked up bis case and farther more the evidence of Multanmal Surana is not reli- able. He also invited my attention that there is no material on record to show that the expenses alleged to have been incurred by the petitioner in this connection were either authorised by the respondent or his election agent. He further stressed that firstly the letters Ex. P-244 to Ex. P-256 said to be sent to Multanmal Surana are not proved and moreover, Multanmal Surana was not summoned to bring those letters and he brought them on his own accord. Further more, there is no proof as regards the authority i.e. who directed to send his those letters. He also invited my attention to the fact that evidence of the petitioner in this regard is not reliable for the reason that he has verified the paragraph 10 of his petition on information received from others while in his statement, he has said that he has personal knowledge about the use of the vehicles at Ashoknagar. He has also contended that look- ing to the pleading, he is also not certain as to whether such an expenditure as alleged for the use of the jeeps was autho- rised by whom whether by the respondent or his election agent. He also urged that the affidavit filed by the petitioner is also vague and defective. He has cited in support of his contention rulings reported in S. N. Balakrishna v. Fernandez (A.I.R. 1969 S.C. 1201) and Mumara Nand v. Brijmohtm Lai Sharma (A.I.R. 1967 S. C. 808).

74. In order to decide this part of the issue, it is required to refer to the relevant provisions of law as well as the evi- dence produced by the parties. Sub-Section (2) of section 99 of the Act says that in this connection and for section 100 of the Act, expression 'Agent' has thi same meaning as in section 123 of the Act. Third Explanation lo section 123 of the Act reads as follows: —

"In this section expression 'agent' include an election agent, a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate' .

75. Statement of Kailash Chandra (p.w. 13) as regards the use of vehicles is of. no consequence. In paragraph 5 of his sl.itemcnt, he has said that Shir Pratap Singh Raja Saheb of Umrl had two Vehicles (1) A standard car and (-2) a jeep and both the vehicles were used for the election purposes of the respondent. )n paragraph 14 he has clearly stated that he has no idea as to when and how the vehicles of Shri Pratap Singh were used in the election and so much so that he does not remember the numbers of the vehicles. Moreover, the petitioner has confined its case to the hiring of four jeeps at Ashoknagar.

76. The statement of Sardar Auvtar Singh (P.W. 15) is also useless as in paragraph 11 of his statement, he has de- posed that he had no personal knowledge about the use of the three jeeps for the election work of the respondent and what ho stated was that he know about it as told by Multanmnl Surana,

77. Rameshkumar (P.W. 22) is an interested witness so much so that he issued one pamphlet in support of the Cong- ress candidate and as stated by him in paragraph 11 of his deposition, he had seen Multanmal Surana, Babulal Jain and Rambali Sharma sitting in any of the three jeeps mentioned by him, and, therefore, the came to the conclusion that they were working for the respondent, He also stated that all the three jeeps used to move about whenever the respondent came to Ashoknagar and this is how he thought that they were used for the respondent's election work. This is not the type of evidence required to prove the use of vehicles for election purposes. His evidence does not seem to be reliable.

78. It will be proper to take up and consider the evidence of Santkumar (P.W. 28) and his two munims, Harishchandra (P.W. 26) and Nathuram (P.W, 27) together. Santkumar (P.W. 28) himself is the owner of the firm Rajaram Panna- lal. The evidence of this witness does not seem to be reliable. He, for the first time, met the respondent along with Multan- mul Surana (P.W. 33) at his place at Gwalior in January 1971 at the instance of Multanmal Surana for the reason that he wanted to have a talk to him regarding tube-well Machine. Multanmal Surana (P.W. 33) in paragraph 14 of his statement has deposed in this connection that he had told the respondent that Santkumar (P.W. 28) wanted some loan from K. B. Bank, Gwalior, for the purpose of purchasing a tube-well machine and it was there that the respondent had told him to supply petrol to Multanmal Surana and the res- pondent would make the payment. In peragraph 7 of hts cross-examination, this witness has stated that he did not tell anything about this meeting to anybody till the date he was in Court for his evidence. It is rather strange that how he appeared as a witness. It is also in evidence that the respon- dent had told him that he should not keep the account in his name but there is no reasonable explanation as to why he instructed his munim to mention in the khata of Multanmal Surana that the petrol was supplied for the election of the respondent against his direction. This is also noteworthy that whether the respondent would at all tell Snntjjumar when he had met him for the first time in his palpce that he should supply petrol for his election work, specially when Multan- mal Surana is said to be a man of his confidence. Santkumar himself has admitted that Multanmal Surana holds a good position at Ashoknagar and he is a millionaire. Then it is difficult to follow as to why Multanmal Surana took Sant- kumar to Gwalior for one of the reasons that he should sup- ply petrol for the purpose of election. Normally, these things are not made known and it is difficult to believe that he would be told to do this by the respondent who had not known him at all till then. In paragraph 9 of his statement, he has stated that all the demands for payment were made to Multanmal Surana and he made the payment. Tt is difficult to understand why the bills were not prepared in name of the respondent when the khata was in his name and the so called instruction said to be issued by the respondent were not lesi- pected. In a question put to him in paragraph 9 of his state- ment, he has answered as follows:—

"It depends upon the position in life of a person. We also maintain such accounts for Congress Party people also. But we maintain accounts in the names of responsible persons of the party and take the power-of-attorney. I have no such power of attorney from the respondent, except the oral talk that I had.".

In paragraph 10, he has stated that when Shrimati Indira Ji got majority in the centre, he became of congress view though

at the time of the mid term election, he was interested in the respondent. He is a type of the witness who goes with the wind and I do not consider him worthy of credence.

79. Harishchandra (P.W. 26) was the Mimim of the firm Rajaram Pannalal at the relevant time and according to him, petrol was supplied by the firm and the indent was made by Multanmal Surana and Shiv Prasad on the credit memos vide Ex. P-22, Ex. P-25, Ex. P-27, Ex. P-122,, Ex. F-127, Ex. P-131 to Ex. P-228 and vide Ex. P-229 he had supplied petrol to Multanmal Surana when he had come himself. In paragraph 6 of his deposition, he has stated that he had shown all the memos produced by him in Court to the petitioner two or four days after the poll but he did not supply him the copy of the accounts filed in Court. rheic seems no reason why he should have shown the accounts to the petitioner of his own accord when he did not seek permission of Santkumar for the same. If it is correct, there seems no reason why the peti- tioner should not have pleaded in his petition to agency of Multanmal Surana earlier regarding which he had produced the evidence very late. It throws a lot of suspicion on the veracity of such like evidence and his evidence inspires no confidence.

80. Nathuram (P.W. 27) was also a Munim with the firm Rajaram Pannalal at the relevant time. The firm maintained a roked bahi, Ex. P-241, and there is a khata for the supply of petrol to Multanmal Surana, which is marked as Ex. P-242. This khata is in his hand-writing. According to him, the firm received a total amount of Rs. 6,305.73 P. from Multanmal Surana on different dates. In his cross-examination, he admits that the portion marked A to A in Ex. P-242 was written in his own handwriting and it was written at the same lime. He has admitted that in the ledger book, he has nowhere written anything akin the word ''vaste' and in the Khuttu some space is left over before writing the word 'samvat' at the end. He has further deposed as follows:—

"I wrote the 'sarnama' in Ex. P-242 from 'A. . . A' at the instance of Santkumar. It is correct that the word 'va' of the word Scindia is written on the word 'm' of the word 'samvat'. It is wrong to stay that the words 'vaste chunav Maharaja Madhorao Scindia' were added afterwards."

In paragraph, 6, he has admitted that there is a khata ot Vinodkumar Raghuvanshi but i* is not mentioned therein for whom the petrol was suppJ;',J. It is clear from the over-writ- ing in the khata that the word 'vaste' and the words 'peliol was supplied for the election of the respondent' were added afterwards with some motive. Had the respondent told him as stated by Santkumar (P.W. 28) that he should not open a petrol account in his name and specially when ho was interest- ed in his election and being a resident of Ashoknagar, which once formed the erstwhile Stats of Gwalior, it does not look probable why he would ask his Munim to add those words that the petrol was supplied for the election of the respon- dent. To me, it appears that these words are added after- wards in order to help the petitioner. It also looks improbable that the respondent would ask Santkumar (P.W. 25) lor the supply of petrol when it was not declared that he would con- test the election.

81. It is also pertinent to note that there was no authority with Santkumar to show that he should supply petrol on the indents given by Shiv Prasad (P.,V. ii). Thue is also no cvi- donce to show that Multanmal Surana had authorised Shiv Prasad to issue such indents. Taking all these facts into con- sideration, I am clear in my mind that it looks a cooked up affairs.

82. I will next take up the evidence of Multanmal Surana (P.W. 33), the star witness of the petitioner, and thereafter I will discuss the evidence of the owners of the jeeps who are said to have supplied them on hire and the two drivers who had driven the two jeeps, out of four of them.

83. It is not in dispute that Multanmal Surana was in Cong- ress till 1966. According to him, he left the Congress in 1966 along with the group of Rajmata as he was not given a cong- ress ticket though he was a loyal congressman, It is also not disputed that he was sitting in the assembly representing the l.ok Suvak Ddl wV/c F.x. R-17. tui'-i.id has also staled that he joined the Ian Sangh Party as the respondent wanted him to do so as he was a man of his confidence- [n paragraph 17, he has admitted that he had taken a loan of Rs. 3,000 from Shrimati Vijia Raje Scindia on 16-5-1971 and he paid only Rs. 1,500 and after the receipt of notice and still the rest of Rs. 1,500 are due inspite of notice, Ex. R-20. In paragraph 15, he has deposed that he knows the prescribed limit of ex- penditure to be spent in assembly as well as for Lok Sabha election and in his assembly election, he had spent rnoro but he had shown less in his election return. According to him, he did not consider it bad if HUB spends moie thuii the pres- cribed limit in his election. In paragraph 19, he has deposed that he wants to maintain the purety of the election though he himself had not maintained it as per his own statement in paragraph 15. In view of his own admission the evidence of a person, who once was a great supporter of the respondent, says that he had a blind faith in him, has come to depose against him, requires great scrutiny.

84. In paragraph 2 of his statement, he has stated that the respondent had asked him to do the work on his behalf for his election and he had agreed to do so. The respondent as R.W. 1 himself has denied in paragraph 16 of his statement that he did neither ask him to work for his election campaign nor did he give his consent for his working in his election, though he had no reason to doubt the bona fide of Surana as a loyal Ian Sangh worker. He also said that he did not permit him for the purchase of any fuel for the motor vehic- les nor did he give his consent for the hire of any vehicle for his election. Surana has not said in his statement as to when and where the respondent asked him to do his election work and he agreed to do so. In paragraph 6 of his statement, he had deposed that he had hired four jeeps at the rate ot Rs. 100 per jeep per day on the instructions from the respon- dent, and he paid hirecharges for the four jeeps to the tune of Rs. 12,000 to Rs. 13,000. He has also deposed that as regards the petrol, it was supplied by Santkumar and the indents were issued by him as well as by Shiv Prasad and the total amount as regards hire of the jeeps and fuel consumed came to Rs. 36,000. He has also deposed that he used to make arangements for the meetings and all these were arrang- ed at the instructions of the respondent. He spent a lot ot amount on behalf of the respondent on his instructions and the respondent had made payments to him. He has also depos- ed that he authorised Shiv Prasad to issue indents but it is pertinent to note that neither Santkumar (P.W. 28) nor his two munims have deposed that Surana had authorised Shiv Prasad to issue indents for the supply of petrol. In paragraph 3 of his statement, he has deposed that letter Ex. P-244 bears the signatures of one Mahendrasingh and he indentifies his signatures). Similarly he has stated as regards letters Ex. P-216 to Ex. P-235 except Ex. P-248. As regards Ex. P-248, he has also said that it bears the signatures of one Bhonsle whose signatures he recognised and he received this letter from Umri house, Guna, but he is not in a position to say as to who had signed it. He also has deposed that he recognised the signature of Om Prakash Bhargava and letters Ex. P-264 and Ex, P-265 bear his signatures.

85. Now, the question arises whether the abovesaid letters have been proved to have been sent to Surana and what is their legal effect According to section 47 of the Evidence Act, acquaintance with ones handwriting may be in three ways: (1) seeing a person write; (2) knowledge by correspondence; (3) habitual submission of documents purporting to be writ- ten by a person in the ordinary course of business. It is true that Surana has stated that he recognise the handwriting of Mahendra Singh and Ex. P-244 bears his signature. Ex. P-244 Is a letter sent to eight persons and out of which Surana is one of them. From a pemsal of *l;ir. letter, and ethers, it is clear that the name of 'Ome Prakash Bhargava, Umri House, Ciuna is typed one and one Mahendrasingh had signed for him. Similar is the case in respect of Ex. P-245, Ex. P-246, Ex, P-247, Ex. P-249, Frx. P-251, Ex. P-252, Ex. P-253 to Ex. P-255 and they arc said to be signed by Mahendrasingh as deposed to by him.

86. The respondent, in his statement in paragraph 43 has deposed that he knows two Mahendraslnghs who were his A.D.C.s. It has also come in evidence of Shri Dig Vijaya Singh (P.W. 19), Ex. Rao Raja of Raghogarh, that Omprakash Bhargava was one of the public forum which was working against the Congress. Shri Nahata. learned counsel for the peti- tioner, has also invited my attention to some of the vouchers in Ex. P-2 saying that Om Prakash flhargava was working for the lespondont. The respondent, in his statement, has denied having authorised Om Prakash Bhargava to work in his election. He has of course said that he did not know if his election agent had authorised him to do so. There is no

material on record to show that his election agent Shri Ranoji Rao Shindc allowed Om Prakash Bhargava to work on be- half of the respondent.

87. Now the question arises whether Om Prakash Bhargava was allowed cither by the respondent or his election agent to work for the respondent and then the next question would be, if it ia so, whether Om Prakash Bhargava authorised Mahendra Singh to issue letters in question to Surana.

88. It is true that there was an election office of the res- pondent at Ouna, There is no evidence to show that Oni Prakash Bhargava was working in his election office. There is also no evidence to show that out of the two Mahendra Singhs whether any one of them was working there on behalf of the respondent. There is further no material on record to show that either Om Prakash Bhargava or Mahendra Singh was authorised by the respondent or his election agent to do his election work. It is true that there are some vouchers in Ex. P-2 bearing the name of Om prakash Bhargava such as voucher No. 55, but it is difficult to say whether it was signed by Om Prakash Bhargava because nobody has proved it. Similar is the case with voucher Nos. 75, 81 and 89. Voucher No. 92 does show that Rs. 106.25P. was received from one Omprakaah Bhargava by the Deputy Collector, District Ouna. Voucher No. 101 is a bill addressed to Bharjmva but it is not clear whether he is the same Om Prakash Bhargava or some other Bhargava. Rven assuming if Ex. P-2 contains one or two vouchers addressed to Bhargava, it cannot be said that he was working as his agent for the respondent and further more there is no material as aforesaid to conclude that he wai authorised to address the. letters to Surana and others and more over this chain in the link of the evidence is also mis- sing that whether Om Prakash Bhargava at all authorised Mahendrasingh and that too to which Mahendrasingh to ad- dress such letters to Surana. It is also pertinent to note that Surana was not asked to bring these letters and he had brought them of his own accord. It is correct that if there is a proof to connect these letters to the election of the res- pondent Certainly they will be considered for whatever thev are worth, but in the instant case, for the aforesaid reason¹!. the petitioner has not been able to prove that Om Praleash Bhargava was authorised either by the respondent or his elec- tion agent to issue such letters and Om Prakash Bhargava, in turn, authorised Mahendrasingh to do so.

89. Much stress has been laid on letter, Ex. P-248, by Shri Nahata, learned counsel for the petitioner, to show that the jeeps in question were hired by Surana and the payment was ultimately made by the respondent. This letter is said to be addressed by Y. N. Bhonslc to the election Officer, Uniri House, Guna, but Surana in paragraph 4 of his statement has said that he does not know who had signed the same. So thiy letter also is not proved. It might be that Surana was working for the Jan Sangh as he was then an M.L.A. representing that Party, but it is difficult to believe that he was authorised to hire the jeeps for the election work of the respondent by him or by his election agent. According to him, he had spent for the election of the respondent to the extent of Rs. 36,000 but it looks strange that he would allow the account books to be taken away by Bhonsle or Chauhan to Umri House Guna. without caring to get the receipt when he was careful enough to retain the aforesaid letters with him. I do not find his evidence worthy of credence for the aforesaid reasons.

90. Similar is the case of Shiv Prasad (P.W. 35) who has deposed that he was maintaining the accounts on behalf of the respondent at the instructions of Surana. He has also said that Chauhan and Bhonsle were sent on behalf of the respondent at Ashoknagar but there is no convincing evidence for the same. He has stated that Ex. P-267 bears the signa- tures of one Daji and he identifies the same. As regards the payment of money he has said in paragraph 4 of his state- ment that Surana used to pay him and he does not know who paid him. He has also deposed that he never gave any ac- count papers either to Chauhan or Bhonslc but sometimes, he submitted it to Surana. He has no idea as to when and how much amount was paid to Surana either by Chauhan or Bhonsle. It is, however, strange that he would give the ac- count papers either to Chauhan or Bhonsle or both without obtaining any receipt for the purpose when he was in charge of the accounts as deposed to by him. In paragraph 5, he again states that all the account, books were taken away by Chauhan and Bhonsle and the rest of the corresponding papers were given to Surana and he kepi these papers wilh him as he was all in all and moreover he had engaged him.

He has further deposed that Bhonslo told him to give all the corresponding papers to Surana and he took way the cash books with the concerning vouchers for Surana did not ask him for the account papers, but told him to give them to Bhonsle as he had come. He has further deposed that he did not give Ex. R-19 to Ex. R-22 to Surana and he has no knowledge whether the proforma like Ex. R-21 and R-22 were issued from his office. This gives a strange picture as to how the account books were dealt with and how they were given either to Bhonsle or Chauhan without obtaining the receipt therefor. In paragraph 6, he has admitted that he does not know the full name of Daji and simply says that he was also called 'Dayaji' and even then he has identified his signatures which seems very doubtful. The respondent himself in his statement has said that one Major Indurkar who was not in his service at the relevant time, was called Daji but he was not authorised to work for him in his election. In paragraph 10 of his statements, he has said that although he had known the petitioner for the last ten years, bul he had no occasion either to meet him during the election of 1971 or till he appeared as a witness in this Court. It looks strange as to how he has come to give the evidence. In paragraph 11, he says that there was a ledger in the name of Surdana for the supply of petrol in the firm of Rajaram Pannalal. He does not say that there was a mention in the Khata that petrol was to be supplied for the election of the respondent and it appears that the word 'vaste' and for the election of the res- pondent were added afterwards. In paragraph 13 of his state- ment, he has said that Surana hired the jeeps and he has no idea whether there was any_ writing about it and he does not remember the registration numbers of those jeeps. Tt is difficult to believe that a person who, according to him, was keeping the accounts and making the payments is so ignorant as to whether there was at all any writing about the hiring of the jeeps and made the payment without having any idea regarding the registration numbers of the jeens. He is a resi- dent of Ashok-nagar and is in politics for the last ten years and his evidence if judged as a whole, leaves an impression that he is not a reliable witness.

91. Now the evidence of Kabulchand Khera (P.W. 29) Suhhrali (P.W. 30), Satyapal (P.W. 31), Namdeorao Bhonsle (P.W. 32), Babukhan (P.W. 34) and Shankar Rao Bhonsle (P.W. 36) requires consideration.

92. Kabulchand Khera (P.W. 29) has deposed that he supplied one jeep, registration No. 3630 MPH to Surana on hire at Rs. 100 per day and he received Rs. 2,500 from him. He is a grain merchant and according to him, he ordinarily gives jeep on hire. He has admitted that he has maintained no accounts for the receipt of the amount of Rs. 2,500. He has also admitted that there was no writing between Surana and him regarding the hiring of the jeep. In paragraph 4 of his statement, he has stated that he received the money on behalf of the respondent simply because he was so told by Surana. He has maintained also no record for giving tne jeep on hire. As aforesaid, it is not in the natural course of events that Surana would go on proclaiming to every one whose jeep he had hired that the money was being paid on behalf of the respondent, even though there was on delay in the payment. This kind of oral evidence is of no consequence.

93. Subhrati (P.W. 30) is a driver of Kubulchand. His evi- dence is also of no consequence as he has said in para 3 of his statement, on a court question, that the jeep was used in the month of February but he is unable to name the year. He has admitted that he does not know the English calender months but he could not give any reason as to how he re- membered the month of February.

94. Evidence of Satyapal (P.W. 31) also does not inspire confidence. He has a business of giving on hire furniture and crockery and he has a shop for that purpose. Although he does not give jeep on hire but he had given it to Surana. Ordinarily, whenever he gives furniture or crockery on hire, he gets the form signed by the hirer and maintains his rokad bahi also but in this case, he has neither got any form signed by Surana nor entered the amount received by him in his ac- count books. He has also no occasion to meet the respondent peisonnlly and he was told by Surana that the payment was being made on behalf of the respondent. He is also of the same type of witness who had not informed the petitioner that his jeep was hired by Surana and he got the hire charges but he came in the witness box. It is further strange that he even does not remember from whom he had purchased the

jeep In question. In paragraph 8 of his deposition, he hm deponed that he got the petrol from the firm Rajaram Parma- laf but he was not required to sign the indent.

95. Namdeorao Bhonsle (P.W. 32) has deposed that he had given his jeep, registration No. DHA 309, on hire at the rate of Rs. 100 per day and got Rs. 3,000 in all. He had supported the Congress in the mid term election and he too has not maintained any account for the receipt of the amount. According to him, either his brother or his cousin was driv- ing the jeep though there was no agreement for the same to supply a driver. He had also no idea whether any T.A. and D.A. were paid to his brother or cousin for driving the jeep. He was also told by Surana Similarly that the payment was being made on behalf of the respondent which is difficult to believe.

96. Babu Khan (P.W. 34) is a driver of Multanmal Surana of jeep No. MPG 6304. In paragraph 2 of his statement, he has deposed that he was given Rs. 10 per day for driving the jeep for the election purposes but no receipt was obtained from him and there is no account to substantiate his statement In paragraph 3 of his statement, he has stated that the jeep was given on hire for the election purposes because he was told Dy Surana and other people also used to say so. It is really strange that according to him when he was driving the jeep for election purposes, what was the necessity of other people of telling him so when he himself was doing that job. It is apparent that he is a got up witness.

97. Shankar Rao Bhonsle (P.W. 36) is the brother of Namdeorao Bhonsle (P.W. 33), who is driving the jeep on behalf of his brother. In paragraph 2 of his statement, he stated that he did not work for any political party In the election but it is surprising that while driving the jeep he used to shout, "Vote for the respondent". His brother worked for the Congress in 1972 election and he too is a. witness who does not inspire confidence.

98. The petitioner himself in paragraph 4 of his statement has said that he had a personal knowledge that four jeeps were used at Ashoknagar for the election of the respondent. The petitioner is an Advocate and it is difficult to believe that having known it, how did he verify this fact in his peti- tion from information received from others and not from his personal knowledge. It is also not understandable as to how he did not come with this charge against the respondent at the time ho filed the election petition and he took so much time to amend his petition in this regard when the election petition was about to be disposed of. In paragraph 17 of his statement, he has stated that he had no talk with Surana re- garding the election in question either during the election days or thereafter but it looks odd as to how he came to know that Surana had hired the jeeps for the election of the respondent and ho had also made the payment. Though he has said that he learnt about it fiom drivers and owners of the jeeps, in paragraph 18, but that does not look probable in the circumstances of the case.

99. As aforesaid, taking into consideration the fact that the plea of corrupt practice is somewhat akin to a criminal charge, it was for the petitioner to prove the commission of the corrupt practice and discharge that burden satisfactorily and in doing so, he cannot depend tin pieponderence or more probabilities as the Courts do not set at naught the verdict of the electorate except on good grounds. The type of evidence produced by the petitioner, as discussed above, falls short of that standard and he has failed to proved this chares. Therefore, the issue No. l(a) is decided in favour of the res- pondent and against the petitioner.

Issue No. l(b)

100. This issue has been decided by my order dated 15-10-

1971 in favour of the petitioner.

Issue No. 2(a)

101. The petitioner has not pressed the corrupt practice pleaded against the respondent of undue influence under sec- tion 123(2) of the Act as detailed in paragraph 11 (wrongly numbered as 10(111) of the petition. Therefore, this issue is decided against the petitioner and in favour of the respon- dent.

Issue No. 2(b) :

102. This issue has already been decided along with issue No. l(b) vltle my older dated 15-10-1971 in favour of the petitioner.

Issue No. 3 :

103. This issue No. 3 has also been decided in favour of

the petitioner vide my Order dated 15-10-1971.

104. The respondent has filed an interlocutory application No. 58 of 1972 on 3-8-1972 alleging that a corrupt practice has been pleaded against one Shiv I'ratap Singh in paragraph 11 (iv) (wrongly numbered as 10(111) (iv) of the petition, who had filed his nomination paper and after its scrutiny when it was found valid, he had withdrawn the same. It is a clear case of non-joinder of a necessary party and, therefore, the election petition also be dismissed on this ground.

105. The reply of the petitioner is that no corrupt practice is pleaded against Shiv Pratap Singh and on the other hand this para contains two instances of undue influence pleaded therein.

106. The respondent also filed an application. I.A. No. 76/72 under section 87 of the Act read with section 137 of the Evidence Act and produced along with it a copy of thu petition, marked True copy said to be received by the respon- dent that the petitioner has made some erasures after the petition was filed. The petitioner, in reply, has said that the erasures were merely scorings which are duly initialled by the petitioner and they were done at the time the petition was filed. The respondent was examined Shri L,S. Baghel Advo- cate in support of his application and the petitioner has led no evidence.

107. Shri Baghel has produced Ex. R-33, a copy of the petition which he got it typed from the copy he had received from the office of the High Court. He is not in a position to say definitely whether Ex. R-33 is a true copy of the copy he had received from the High Court Office after he had field the memo of appearance. The Statement of Shri Baghel does not prove anything about erasures and so paragraph 11 (iv) equivalent to paragraph 10(111) (iv) (wrongly num- bered) as it exists in the petition has to be taken up for consideration to decide whether a corrupt practice is pleaded against a withdrawn candidate.

108. It is not in dispute that Shri Shiv Pratap Singh had filed his nomination paper and it was found valid on scrutiny and he had withdrawn his candidature. His identity is also not in dispute.

109. Now, the question arises whether the corrupt practice

shall join as respondents to his petition—

"(b) any other candidate against whom allegations of any corrupt practice are made in the petition."

and section 86 says that the High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117 of the Act. The law on the subject is well established that in a case of a can- didate who had withdrawn and if an allegation of corrupt practice is alleged against him, he is a necessary party and without him the election petition has got to be dismissed. If any ruling is required for the purpose, sec Kaslwiath v. Kudsia Begam (A.I.R. 1971 Supreme Court, 372), Amin Lai v Hunna Mai (A.I.R. 1965 S.C. 1243), Mohan Raj v. Surendra Kumar (A.I.R. 1969 S.C. 677), N.E. Horo v. Jahan Am (A.I.R. 1972 Supreme Court, 1840), Raghunath- xingh v. Govardhan and others (1972 M.P.L.I. 519).

109. Now, the question arises whether the corrupt practice has been alleged against Shiv Pratap Singh in paragraph 11 (iv) equivalent to Para. 10(111) of the petition. The relevant part of the pleading is as follows:—

"Re : Undue Influence Under Section 123(2) of—

Representation of the People Act:—

That, the workers of the respondent, with his consent have threatened the electors with an injury to their body and they were criminally intimidated in case they vote for Dcorao Krishnarao Jadhav, the Con- gress candidate. The few instance;, of the same are given hereunder :

(iv) That on or before 22-2-71, Shri Mohan Prasad Ojha, a congress worker of "village Umri (Tahsil Guna) was threatened at pistol-point by the workers of the respondent with his consent. Shri Shiv Pratap Singh and others of Umri threatened not to vote and canvass in favour of the Congress candidate, Deora Kxishnarao Jadhav :.nd threatening with dh'- consequences."

The contention raised by Shri Nahata, learned counsel for the petition, is that pragraph !1'iv)-10(III)(iv) contains two allegations of undue influences and the second one, accoi- ding to him, consists of threatening Shiv Prntap Singh who wanted to canvass for the Congress candidate, but this cons- truction is not possible. It clearly says that Shri Mohan Prasad Ojha, a Congress workor, was threatened at a pistol point by the workers of the respondent with his consent and thereafter it says that—

"Shri Shiv Pratap Singh and others of Umri threatened not to vote and canvass in favour of the Congress candidate, Deorao Krishnarao Jadhav and threaten- ing with dire consequences."

110. It is true that the allegation must constitute a corrupt practice and not a mere suggestion in the petition in case of a dismissal on the ground of a non-joinder of a necessary party. The petitioner has tried to wriggle out from the unfor- tunate position he was placed in not making Shri Pratap Singh a party in the petition against whom a corrupt practice was pleaded and he tried to put an interpretation which in no circumstances of the case is possible to read and, therefore, I am clear in my mind that this defect being fatal, the elec- tion petition of the petitioner deserves to be dismissed, as in the instant case, the allegation made against Shiv Pratap Singh is of undue influence under section 123(2) of the Act and he has not been made a party to the petition.

Issue No. 4

111. The petitioner having failed to prove both thri issues

No. 1 and No. 2, he is not entitled to any relief.

112. In the result, the election petition is dismissed with costs. Counsel fee Rs. 600 and this shall be deducted from the security amount deposited by the petitioner. The balance of the security amount shall be refunded to the petitioner.

SURAJBHAN, Judge.

27-10-1972

COPY OF COURT'S ORDER DATED 15-10-1971, IN HP.

NO. 5 OF 1971 Election Petition No. 5 of 1971

Udhav Singh V. Shri Madhav Rio Scindia.

ORDER

[On preliminary issues l(b), 2(b) and 3]

Issue No. 3

It is not in dispute that the result of the election" was declared by the returning officer in this case on 11th March, 1971. The election petition was filed on 26-4-71. The res- pondent in para 8 of his written statement, has said that the petition filed by the petitioner is not within time,

2. Chapter V of the Representation of the People Act, 1951 (here-in-after called the Act) deals with the counting of votes. S. 66 deals with the declaration of the result and S. 67-A says that for the purposes of this Act, the date on which a cahdidate is declared by the returning officer under the provisions of S. 53 or S. 66 to be elected to the House of the Parliament , shall be the date of election of that candidate. S. 81 of the Act prescribes the period of 45 days for filing the election petition either by the candidate or any elector from the date of the .:lcc;ic.:n of the returned candi- date.

3. 25th of April 1971 wss a Sunday, and ihe petition in this case was filed by the pelitioner of the 26tn April. 1971. Thus, it is clearly within time, and the learned counsel for the respondent has not been able to show as to how this petition was not within time. The objection raised on this ground is apparently groundless, and hence this issue is decided in favour of the petitioner.

4. The petitioner is pawl 10(1) and 10(11) of his petition has alleged th.it the respondent and his election agent had incurred or hud [Authorised expenditure in connection with his election, between the 27th January, 1971 ana 11th Match, 1971, in contravention of S. 77 of the Act, i.e. he had exceed- ed the prescribed limit, which was Rs. 35,000 in this case, under S. 77(3) of the Act, read with rule 90 of the Conduct of Election Rules, 1961 (here-in-aUer called the rules), and thus he is guilty of corrupt practice under S. 123(6) of the Act.

5. In para 10(1) of the election petition, the petitioner has dealt with the use of 4 helicopters. It is alleged that they wore used for the purposes of election by the respondent himself as also by his election agent and that the expenditure on that account has not been included in the return of the election expenses. He his givert In para 10(1) the places visited by the respondent

6. Shri K. A. Chitale, the learned Counsel for the respondent has invited my attention to para 10 and 10(1) of the written statement of the respondent and stressed that ihe allegation in question lacks in material particulars, as neither the numbers of helicopters in question have been given nor their owner has been named, nor it is shown who had chartered them and on what dates, and in the absence of such important particulars, the allegation cannot be enquired into. He fur- ther invited my attention to para 10(1) of the petition regarding the helicopters, and argued that the allegations therein are only inferential and conjectural and so they caiirtot constitute a definite allegation of facts, and in support, he relied on the rulings in R. M. Seshadrl v. G. Vasnntha Vat nnd others (AIR 1969 S.C. 692), Sanunl N, Balnkrishna. etc. V. George Fernandez and others etc. (AIR 1969 S.C. 120i>, Rmn Dayai V. BrIJraj Singh and others (AIR 1970 S,C. 110), Snit. Saria Devi w/o Dwarknprasad V. BiremlrsslnRh S/o Bfni Sitfflh nnd others (AIR 1961 M.P. 127) and Bdlwant Singh v. Lakshmi Nnrnln (1962 Doabla's Election Cases, II).

7. Shri p, L. Dube, the learned counsel for the petitioner on the othfcr had urged (hat the petitioner has very clearly said that 4 helicopters were med by respondent fbr the pur- poses of his election. The places he visited with dated are also given. The corrupt practice pleaded is that of incurring or authorising to incur the expenditure duritig the election in contravention of S. 77 of the Act, and it has nothing to do with cither the hire or of procuring of the helicopters. "Ha, therefore, urjjed that it was not necessary to mention in the election petition as to who had chartered the helicopters in question and other matters agitated by the other side, and in support he cited the rulings in Kamal Nirain v. D. P. Mlshra and another (1970 M.P. L. J. 826) and Shri Kirthart V. Sat Naruih and others (1968 Doabia's Election Cases, 123;.

8. On giving my careful consideration to the contentions raised before me by the learned counsel on both sides, I am of the view that the paragraphs in question cannot be said to be lacking in material particulars, so far as the decision of this issue is concerned.

9. At the vety outset, T must say that S, 123(6) of the Act prescribes incurring or authorising to incur expenditure in connection with the election in contravention of S. 77 of the Act, amounts to a corrupt practice. S. 77 of the Act deals with the account of the election expenses, and about the maximum limit prescribed therefore. Sub-seuion (3) of this section also says that the total of the said expenditure shall not exceed such amount as may be prescribed, which is Rs. 35,000 in the instant case, and sub-section (1) says that the candidate at the election, either by himself or by his election agent, shall keep separate and corretit accounts of all exp6nses incurred in connection with the clcctiofi, whether incurred by self or authorised by him or by his election agent, between the dates of the publication of the notification calling the election and the date of declaration of the result thereof

(both days inclusive). S. R3 deals with the contents oi me election petition. S. 83(l)(b) provides that an election peti- tion shall ect forth full particulars of any corrupt practice that the petilioner alleges, including as full a statement as possible, of the names of the parties alleged to have com- mitted such corrupt practice and the date and place of the commission of such corrupt practice etc,

10. So, from the language used, it is quite clear that this provision of law requires the setting forth of full par- ticulars of corrupt practices and especially it mentions at least three particulars must be given, viz. the names of parties alleged to have committed the corrupt practice, the dates when such corrupt practice is said to have been committed and also the place of the commission of such corrupt practice. It is true that in statins the material facts, if the voids of th* section aie merely quoted, the efficacy of the words' material facts' would be lost, as their Loidships of the Supreme Court have observed in Sntnant N. Bulakxishna etc. V. George Famundez and others (AJR 1969 S.C. 1201). It is also equally true that the allegation of corrupt piactico should be given with sufficient fullness and clarification, so that the opposite party may fairly meet the same as these me quasi criminal proceedings and the standard of proof lcquired is that which should be beyond a reasonable doubt as is required in criminal offences, Otheiwise, without the material particulars, the enquiry will only be rambling and a roving one which S. 83 of the Act protects.

11. As aforesaid, the corrupt practice alleged by the peti- tioner against the respondent is that of having incurred or having authorised the expenditure in connection with his election in contravention of S. 77 of the Act. It is not a corrupt practice under S 123(5) of the Act. In cases of corrupt practice under S. 123(5) us reported in BaHwnntsioRh V. LokJhml Naraln (1962 Doabia's Election cases, 77). Their Lordships held that it was sufficient compliance with the corrupt practice consists in the fact of hiring or procuring of i vehicles for the conveyance of voters and not in the contract W hiring or procuring. Thus if the particulars about the use of a vehicle for conveying voters to and from th; polling booths with the other necessary details are given Their Lordships held that it was sufficient compliance with the provisions of law, and it was not necessary to give any more details, such as contract of hiring or arrangement ior pro- curing.

12. In the instant case, the petitioner has mentioned that 4 helicopters were taken on hire. In piia 10(1) it h further mentioned that they were hhed or procured by respondent himself and the Bhartiya Jan Sangh party or Shri Shejwalkar had nothing to do with those helicopters. Tt mentions the places as respondent had visited, and also jjives the dates of his visits there, by the aforesaid helicopters. It also menlions the amount of the expenditure incuncd in connection with such visits. It is also mentioned that the said helicopters were used for the election purnoses. The respondent has, however, denied this allegation and the expen- diture said to be incurred in regard to them. The contention of the respondent in reality is that it was the Htiarntiya Jan Sangh, a political party, who hnd used them for the purpose of their own party propaganda, and they were not used by tho respondent or any other person with his consent.

13. In my view, the conupt practice pleaded, give') all the material particulars as are required by S. 83 of the Act, and it was not necessary for the petitioner to add who had chartered those helicopters or who was their owner, al'.hough the petitioner has alleged that they were hired by the respon- dent himself. T, therefore, hold that the allegation in the election petition regarding the helicopters does not lack in material particulars

14. Para 10(11) of the petition deals with the use of 18 motor vehicles in connection with the election of the res- pondent and the expenditure said to be incurred or authorised by the respondent for his election work is to the tuno of Rs. 25,000 and it is alleged that this expenditure on motpr- vehicle,i has not been incurred in the return ol the election expenses submitted by the respondent,

15. Shri P. L. Duhe, counsel for the petitioner, agreed that he would confine his allegation only to those vehicles, of which full necessary details have been mentioned in this para. 11 G of T/73—3

In this situation, therefore, it is not necessary now to ask for further particulars as the allegation in regard to those vehicles of which particular are not mentioned have been abandoned by the learned counsel for tho respondent. It appears from a reading of the said paragraph thai details about only 9 vehicles out of 18 mentioned have been given, and it is ordered that the petitioner shall not be allowed to lead evidence in respect of the matters connected with the vehicles of which details ha\c not been supplied.

16. Tn view of the stand taken by the counsel for the petitioner, on this point, he may, if he so desires, make the corresponding amendment in the amount of expenses shown on vehicles amounting to JRs, 25,000, which pertain to 18 vehicles. This amendment, if he so chooses, shall be carried out within 10 days,

17. This issue is, therefore, answered accordingly. 18. Issue No. 2(b)

This issue deals with an allegation of the petitioner made in para 10(ITT) remarked as para 11 of the election petition. Shri Dube has agreed that so far as this conupt practice of undue influence under S. 123(2) of the Act is concerned, as detailed in the aforesaid paragraph, he will confine his evidence etc, only in regard to the facts relating to the porsons who have been named, and the particulars of which have been supplied, in (he paragraphs and leave oul others about whom details have not been furnished.

19. In view of the aforesaid stand now taken iiy the counsel for the petitioner, it is not necessary to ask for further material particulars, which were said to be lacking in this paragraph.

20. This issue, is therefore, decided accordingly.

SURAJBHAN, Judge

15-10-1971

TRUE COPY

Sd/- ILLEGIBLE, Dy. Registrar,

[No. 82/MP/5/71] B. N, BHARDWAJ, Secy.

ORDER

New Delhi, the 29th March, 1973

Now, therefore, in pursuanco of section 10A of the said Act, the Election Commission hereby declares the said Shri \tram Maroti Donu to be disqualified for being chostn as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State for a period of three years from the date of thw order.

[No. MT-LA/14J/72O3)] A. N. SEN, Secy, S.O. 1235.—Where the Election Commission is sutisficd Ibat Shri Naik Chandusing Amaising, Ganesh Ward, Pusad, Tq. Pusad, District Yeotmal (Maharashtra), a contesting candidate for the election held in March, 1972, to the Maharashtra Legis- lative Assembly from 156-Umarkhcd Assembly Constituency, has failed to lodge an account of his election expenses as required by the Representation of the People Act, 1951, and the Rules made thereunder;

And whereas the said candidate, even after due notices, has not given any reason or explanation for the failure and the Election Commission is satisfied lhat he has no good reason or justification for such failure;

Now, therefore, in pursuance of section 10A of the said Act, the Election Commission hereby declares the gaid Shri Naik Chandusinc Amarsing to be disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State for a period of three years from the date of this ⁷ ' order. fNo. MT-LA/156/72(12)]

ORDER

New Delhi, the 9th April, 1973

S.O. 1237.—Whereas the Flection Commission is satisfied that Shri K. Nedunche^ian, 180-Nagarasampettai Post, Tairu- chcri (Via) Kumbakonam Taluk, Thanjavur District. (Tanail- nadu"), a contesting canddidate for the general election to the Tamil Nadu Legislative Assemebly held in 1971 from 172- Valangirnam constituency, has failed to lodge an account of his election expenses in the manner required by the Representation of the People Act, 1951, and the Rules made thereunder;

And whereas after considering the representation made by the said candidate, the Election Commission Is further satis- fied that he has no good reason or justification for the failure;

ORDER

New Delhi, the 301h March. 1973

Now, therefore, in pursuance of section 10A of the said Act, the Election Commission hereby declares the said Shri K. Nedunchezian to be disqualified for being chosen as, and for being, a member of either Houso of Parliament or of the Legislative Assembly or Legislative Council of a State for a period of three years from the date of thii order.

[No. TN-LA/172/71(48)] S.O. 1236.—Whereas the Election Commission is satisfied that Shri Atram Maroti Donu, At 4 Post Vyahad Khurd. Tah, Chandrapur, District Chandrapur, Maharashtra, a con- testing candidate for the election held in March, 1972 to the Maharashtra Legislative Assembly from 145-Saoli Constituency, has failed to lodge an account of his election expenses as requited by the Representation of the People Act, 1951, and the Rules made thereunder;

And whereas the said candidate, even after due notices, has not given any reason or explanation for the failure and the Election Commission is satisfied that he has no good reason or justification for such failuie;

ORDER

New Delhi, the 10th April, 1973

S.O. 1239.—Whereas the Election Commission is satisfied that Shri Suryawanshi Hanmant Vaijinath, Zingnnappa, Galli Sidharth. Colony Latur, District Osmanabad ("Maharashtra), a contesting candidate for the general election held in March. 1972, to the Maharashtra Legislative Assembly from 192- Latur constituency, has failed to lodge ari* account of his flection expenses as required by the Representation of the People Act, 1951, and the Rules made thereunder;

And whereas the said candidate, even nfter dife notices, has not given any reason or explanation for the failure and the Election Commission is further satisfied that he has no good reason oi justification for such failure;

ORDER

Now, therefoie, in pursuance of section 10A of the said Act, the Flection Commission hereby declares the said Shri Suryawanshi Hanmnnt Vaijinath to be disqualified for being chosen as, and for being, a member of cither House of Parliament or of the Legisulntive Assembly or T ecislative Council of a State for a period of three years from the date of this older.

[No, MT-LA/192/72(17)1 LS.O. 1238.—Whereas the Election Commission is satisfied that Shri Patankar Madhukar Krishna, At and Post Anewadl, Taluka Jaoli, District Satara (Maharashtra), a contesting candidate for the general election held in March, 1972 to the Maharashtra Legislative Assembly from 248-Jaoli constituency, has failed to lodge an account of his election expenses as required by the Representation of the People Act, 1951, and the Rules made thereunder;

And whereas the said candidate, even after due notices, has not given any reason or explanation for the failure and the Election Commission is further satisfied that he has no good reason or justification for such failure;

Now, theiefore, in pursuance of section 10A of the said Act, the Election Commission hereby declares the said Shri Patankur Madhukar Krishna to be disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State for a period of three years from the date of this order.

[No. MT-LA/248/72(16)]

ORDER

New Delhi, the 12th April, 1973

S.O. 1240.—Wheieas the Election Commission is satisfied that Shri Jadev Hamir Arshi, Sutrapada, Via Veraval, Dist- lict lunagadh. Gujarat, a contesting candidate for the general election held in March, 1972, to the Gujaiat Legislative Assembly fiom 33-Malia constituency, has failed to lodge an

account of his election expenses, as lcquiied by the Rep- resentation o[ the People Act, 1951, and the Rules made thereunder;

And whereas the said candidate, even after due notices, has not Riven any reason or explanation for the failure and the Election Commission is satisfied that he has no good reason or justification for such failure;

Now, therefore, in pursuance of section 10A of the said Act, the Election Commission hereby declares the said Shri Jadav Hamir Arshi to be disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a state for a period of three years fiom the date of this order.

[No. GJ-LA/33/72(6)]

ORDER

New Delhi, the 17th April, 1973

S.O. 1242.—Whereas the Election Commission is satis- fied that Dr. M. B. Raman, M.B.B.S., 2-Farouk Buildings, Chaiing Cross, Ootacamund (Tamil Nadu) a contesting can- didate for the general election to the Tamil Nadu Legislative Assembly held in March, 1971 from. 98-Oota<.amund consti- tuency, has failed to lodge mi account of his election expenses as required by the Representation of the Peoplo Act, 1951. and the Rules made thereunder;

And whereas, after considering the icpresentation made by the said candidate, the Election Commission is further satis- fied that he has no good reason for justification for the failure;

ORDER

Now, therefore, in pursuance of section 10A of the said Act, the Election Commission hereby declares the said Di. M. B. Raman to be disqualified for being chosen as, and for being, a member of cither House of Pailiament or of the Legislative Assembly or Legislative Council of a State for a period of three years from the date of this order.

[No. TN-LA/98/71(50)] New Delhi, the 16th April, 1973

S.O. 1241.—Whereas the Election Commission is satisfied that Shri (S. Subramaniiim Dcvadoss Nadar Building, Val- paiai, Coimbatorc Distt., Tamil Nadu, a contesting candidate for election tc the Tamil Nadu Legislative Assembly from 109-Valparai constituency, held in March, 1971 has failed to lodge an account of his election expenses at all as icquired by t>.e Representation of the People Act, 1951, and the Rules made thereunder;

And whereas the said candidate, even after the due notice, has not given any reason or explanation for the failure and the Election Commission is satisfied that he has DO good reason or justification for such failure;

Now, therefore, in pursuance of section 10A of the said > ;t, the Election Commission hereby declares the said Shri vj. Suliramanlam to be disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State for a period of three year¹: from the date of this oi der.

[No. TN-LA/109/71(49)]

ORDER

New Delhi, the 19tl April, 1973

S.O. 1243.—Whereas the Election Commission is satis- fied that Shri Arkn Rama Rao, Communist Party Office, Boath, Adilabad Distt. (A.P.), a contesting candidate for '-.incrnl election to the Andhra Pradesh Legislative Assembly rield in March, 1972 from 237. Bouth constituency has failed lo lodge an account of his election expenses in the manner required by the Representation of the people Act, 1951, and the Rules made thereunder;

And whereas the said candidate, even afler due notices, has not given any reason or explanation for the failure and the Election Commission is satisfied that he has no cood reason or justification for such failure;

Now. therefore, in pursuance of section 10A of the said Act, the Flection Commission hcicby declares the said Shri Aika Rama Rao to be disqualified for being chosen as, and for being, a member of either House of Parlieraent or of the Legislative Assembly oi Legislative Council of a State for a period of three years from the date of this oider.

[No. AP-LA/237/72] V. NAGASUBRAMANIAN, Secy.

CORRIGENDUM

New Delhi, the 26th April, iy73

S.O. 1244.—For the date "10th Feb., 1973" ap- pearing above the Commission's Ordeis Nos. AP-LA/245/72 and AF-LA/249/72 published as S.O. 498 and 499 at pages 712 and 713 of the Gazette of India, Part II, Section 3(ii) daled 24-2-1973, substitute the date "10th January, J973".

[No. AP-LA/245/721 I. K. K. MENON, Under Secy.

MINISTRY OF LAW, JUSTICE & COMPANY AFFAIRS

(Department of Company Affairs)

New Delhi, the 6th April, 1973

S.O. 1245.—In pursuance of sub-section (3) of section 26 of the Monopolies and Reslnctive Trade Practices Act, 1969 (54 of 1969). the Central Government heieby notifies the cancellation of refiistiiition of M/s. CONTAINERS AND CLOSURES LIMIT! D under the said Act (Ceitilicate of Registration No. 408/1970 dated the 28th October, 1970) with the condition that the de-registration will be operative till the management of the undertaking remains with the Industrial Reconstruction Corporation of India Ltd., Calcutta.

[No. 22/8/72-M(II)]

New Delhi, the 13th April, 1973

S.O. 1246.—In pursuance of subsection (3) of section 26 of the Monopolies and Rcstirctive Trade Practices Act, 1969 (54 of 1969), the Central Government hereby notifies tile cancellation of the registration of M/s NATIONAL RUBBER MANUFACTURERS LTD. under the said Act. (Certificate of Registration No. 395/1970 dated the 28-10-1970),

IF. No. 22/21 /72-M(H)l S. BALARAMAN, Under Secy.

MINISTRY OF HOME AFFAIRS

(Directorate of Gurdwnro Elections)

ORDER

New Delhi, the 28th February, 1973

S.O. 1247.—In exercise of the powers conferred by section 6 of the Delhi Sikh Gurdwaras Act, 1971 (82 of 1971), 1, U. S. Kohli, Director Gurdwara Elections hereby make tho following amendments in the Table annexed to this Directorate's Order of even number dated the 29-12-1972 and published on pages 163 to 181 of the Gazette of India Extra-ordinary (Part-II) dated the 15th January, 1973, namely;—

AMENDMENTS

1. In the Table to the said Order,

(i) against Ward No. 11 for the words "Gwalior Pot- teries and the boundary of the Ns.w Delhi Munici- pality and west of Nauroji Nagar", the words "Gwalior Potteries with the boundary of the New Delhi Municipality on the west of Nauroji Nagar"; shall be substituted;

(ii) against Ward No. 14, for the words "running east- wards along the said projection", the words "run- ning eastward along the said line of projection", shall be substituted;

(iii) against Ward No. 31, for the words "thence west- words alone the New Pusa Road upto its junction the words "thence eastwards along Gandhi Nagar Road—Rajgarh Road", shall be substituted;

(iv) against Ward No. 35, for the words "Civil Line", the words "Civil Lines", shall be substituted; and

(v) against Ward No. 44, for the words "thence south- wards along tho New Pusa Road upto its junction with Pusa Road at Patel Road", the woids "thence southwards along the New Pusa Road uplo its junc- tion with Pusa Road at its ciossing with Patel Road", shall be substituted.

2. In Appendix 4 to the said Order, after item No. 47, tho following itcmi shall be added, nutnely:—

48. Madipur 49. Nangloi Saycil 50. Nilothi 51. Tilangpur 52. Ranhola 53. Shafipur.

[No. F. l(16)/72-DGE Amn.l U. S, KOHLI, Director MINISTRY OF FINANCE

(Department of Revenue & Insurance)

Now Dolhi, the 9th April, 1973

S. O. 1248—Tn pursuance of sub-rule (2) of rule 9, clause (b) of sub-rule (2) of rule 12 and sub-rule (1) of rule 24 read with rule 34 of the Central Civil Services (Classi- fication, Control and Appeal) Rules, 1965, the President here- by makes the following further amendments in the notification of Government of India, in the Ministry of Finance (Depart- ment of Revenue & Insurance) No. S.R.O, 612, dated the 28th February, 1957, namely :—

In the Schedule to the said notification :—

(a) In Part II, General Central Service, Class III, afttt the existing entries, the following heading and entries shall be inserted namely :—

Description of Post

Appellate

Authority Appoint- ing Au- thority

Authority compe- tent to impose penalties and penalties which it may impose (with reference to item numbers in rule 11) Authority Penal-

ties

2

3 4

5 1

"GENERAL INSURANCE SERVICES INTEGRATION COMMITTEE.

Member- All Secretary

All posts Member- Secretary

Officer on Special Du- ty (Insur- ance) and Additional Secretary to the Govern- ment of India.

Under (i) to (iv) Member- Secretary,"

Secretary

(b) in Part III, Ganoral Services Class IV, after the existing entries, the following heading and entries shall bo inserted namely:—

4

5 1 2 3

"GENERAL INSURANCE

SERVICES INTEGRATION COMMITTEE.

All

Member- Secretary"

Head of the Office

All Posts Head of the Office

A.S. KRISHNAMURTHY, Under Secy.

[F. No. 33/10/72-Ad. IA]

(Department of Banking)

ORDER

New Delhi, the 27lh April, 1973

8.O. 1249.—In exercise of the power conferred by sub- section (2) of section 45 of the Banking Regulation Act, 1949 (10 of 1949), the Central Government hereby makes the following amendment in the Order of moratorium of the Government of India in the Ministry of Finance (Depart- ment of Banking) No. F, 8/3/72-AC, dated the 27th Janu- ary, 1973 in respect of the 24-Parganas Northern Central Co-operative Bank Limited, namely :—

In the said Order, for figures, letteis and word "30th April, 1973", the figures, letters and word "30th June, 1973" shall be substituted.

[No. F. 8/3/72-AC]

ORDJ-R

S.O. 1250.—In exercise of the powers conferred by sub- section (2) of section 45 of the Banking Regulation Act, 1949 (10 of 1949), the Central Government hereby makes the following amendment in the Order of moratorium of the Government of India in the Ministry of Finance (Depart- ment of Banking) No. F. 8/3/72-AC, dated the 27th Janu- ary, 1973 in respect of the 24-Parganas Southern Central Co-operative Bank Limited, namely :—•

In the said Order, for the figures, letters and word "30th April, 1973", the figures, letters and word "30th June, 1973" shall be substituted.

LNo. F, 8/3/72-AC]

ORDER

S,O. 1251.—In exercise of the powers conferred by sub- section (2) of section 45 of the Banking Regulation Act, 1949 (10 of 1949), the Central Government hereby makes the following nmendment in the Order of moratorium of the Government of India in the Ministry of Finance (Depart- ment of Banking) No. F. 8/3/72-AC, dated the 27th Janu- ary, 1973 in respect of the Kalna-Katwa Central Co-operative Bank Limited, namely :—

In the said Order, for figures, letters and word "30th April, 1973", the figures, letters and word "30th June, 1973" shall be substituted.

[No. F. 8/3/72-AC]

ORDER

S.O. 1252.—In exercise of the powers conferred by sub- section (2) ot section 45 of the Banking Regulation Act, 1949 (10 of 1949), the Central Government hereby makes the following amendment in the Order of moratorium of the Government of India in the Ministry of Finance (Depart- ment of Banking) No. F. 8/3/72-AC, dated the 27lh Janu- ary, 1973, in respect of the Cooch-Behar Cential Co-ope- rative Bank Limited, namely :—

In the said Order, for figures, letters and word "30th April, 1973", the figuics, letteis and word "30th June, 19/3" shall be substituted.

[No. F. 8/3/72-AC] L, D. KATAR1A, Dy. Seey.

RESERVE BANK OF INDIA

Now Delhi, the 21st April, 1973

S, O. 1253—An Account pursuant lo the Reserve Bank oflndia Act, 1934, for the week ended the 13lh day of April 1973

ISSUE DEPARTMENT

Rs.

Rs. Assets

Liabilities

Rs.

Rs.

Notes held in the Banking De-

partment . . ..

182,53,11 000

Gold Coin and Bullion:— (a) Held in India (b) Held outside India

Notes in circulation

12,83,24,000 5518,85,63,000

Total Notes issued .

5531,68,87,000 Foreign Securities

171,65,38,000

TOTAL

354,18,49,000 3,15,07,000

Rupoe Coin Government of India Rupee

Securities

5174,35,31,000

Internal Bills of Exchange and other commercial paper

Total Liabilities

5531,68,87,000 Total Assets

5531,68,87,000

Dated the 18th day of April, 1973

S. JAGANNATHAN, Governor

Statement of the Affairs of the Reserve Bank oflndia, Banking Department as on the 13th April 1973

Liabilities

Rs.

Assets

Rs.

3,00,00,000

Capital Paid Up

Reserve Fund . . . . ..

150,00,00,000

12,83,24,000 3,54,000 3,53,000

Notes Rupee Coin Small Coin Bills Purchased and Discounted:—

National Agricultural Credit (Long Term Opera-

28,01,45,000 tions) Fund . . . . ..

209,00,00,000

(a) Internal . . . .. (b) External . (c) Government Treasury Bills

National Agricultural Credit (Stabilisation) Fund . 45,00,00,000

224,02,44,000 210,32,39,000 388,19,33,000

Balances Held Abroad* . . .. Investments** Loans and Advances to:—

National Industrial Crodit (Long Term Operations)

Fund

175,00,00,000

(i) Central Government (ii) State Governments®

98,95,92,000

Loans and Advances to:—

Deposits:— .

(a) Government

(i) Scheduled Commercial Bankst (iij State Co-operative Bankst (iii) Others

33,65,00,000 336,31,68,000 4,66,97,000

(i) Central Government . . .. (if) State Governments . . ..

57,29,84,000 13,74,62,000

Loans, Advances Bnd Investments from National Agricultural Credit (Long Term Operations) Fund . . . . . ..

(a) Loans and Advances to:—

(i) State Governments

(b) Banks

(ii) State Co-operative Banks

65,52,44,000 21,58,06,000

(i) Scheduled Commercial Banks

284,07,79,000

29,70,00,000

(iii) Central Land Mortgage Banks (iv) Agricultural Refinance Corporation . (b) Investment in Central Land Mortgage Bank Debentures . . . ..

11,24,73,000

Loans and Advances from National Agricultural (ii) Scheduled State Co-operative Banks . (iii) Non-Scheduled State Co-operative Banks Gv) Other Banks

14,55,95,000 109,38,000 31,62,000 Credit (Stabilisation) Fund

Loans and Advances to State Co-operative

Banks

27,21,14,000

Loans Advances and Investments from National

Industrial Credit (Long Term Operations) Fund

(a) Loans and Advances to the Development

(c) Others

79,13,81,000

Bank

95,09,36,000

(b) Investment in Bonds/debentures issued by

the Development Bank . . ..

Bills Payable Other Liabilities

71,12,54,000 4,33,72,09,000 Other Assets

53,66,42,000

Rupees

1541,07,64,000

Rupees

1541,07,64,000

•Includes Cash, Fixed Deposits and Short-term Securities.

••Excluding Investments from the National Agricultural Credit (Long Term Operations) Fund and the National Industrial Credit (Long Term Operations) Fund,

©Excluding Loans and Advances from tho National Agricultural Credit (Long Term Operations) Fund, but including temporary overdrafts to State Governments.

tlncludes Rs. 9,17,50,000 advanced to scheduled commercial banks against ueanc bills under Section 17 (4) (c) of the Reserve Bank of India Act,

^Excluding Loans and Advances from the National Agricultural Credit (Long Term Operations) Fund and the National Aaricuitural Credit (Stabilisation) Fund.

Dated the 18th day of April 1973.

S. JAGANNATHAN, Governor [No, F l(l)/73—BOH C.W. MIRCHANDANT, Under Secretary

11 G of 1/73—4

(Department of Expenditure)

New Delhi, the 10th April, 1973

S.O. 1254.—In exercise of the powers conferred by the pro- viso to article 309 and clause (5) of article 148 of the Constitution and of all other powers enabling him In this behulf, the President, after consultation with the Comp- troller and Auditor General of India in respect of persons employed in the Indian Audit and Accounts Department, hereby makes the following rules further to amend the General Provident Fund (Central Services) Rules, 1960, namely :—

1.(1) These rules may be called the General Provident

Fund (Central Services) Fourth Amendment Rules, 1973 ;

(2) They shall come into force on the date of their publi-

cation in the Official Gazette,

2. In the General Provident Fund (Central Service.*,) Rules, 1960, in the Fifth Schedule, in paragraph 2, after the entry "Senior Deputy Accountant General (Admn.)/Deputy Accoun- tant General (Admn.), Commerce, Works and Miscellaneous, New Delhi", the following entry shall be inserted, namely :—

"Additional Accountant General, Gujarat, Rajkot"

[No. 13(8)-E.V.(B)/721 S. S. L. MALHOTRA, Under Secy.

COLLECTORATE OF CENTRAL EXCISE

Poona, the 22nd September, 1970

CENTRAL EXCISES

S. O. 1255. In exercise of the powers conferred on me under Rule 185 (2)of the Central Hxcise Rules, 1944 (Chapter VII-A), I hereby prescribe the overtime fees for the Central Excise Officers mentioned in column (1) of the Schedule below at the rates shown in the columns (2) to (7) for attending to examination and sealing of export goods at source.

SCHEDULE

Designation of the

Officer

Foes per hour or part these of on any working day

Fee per hour or part thereof on any Sunday or other holi- day

From 8 P.M. From From 8 P.M to 6 PM

to 6 AM 6 AM

to 8 PM

From 6 AM to 8 PM

If the job during this period is

far

6 hrs or more

less than hrs.

If the If the job job during dur- this ing period this is for period less is for than 6 hrs. 6 hrs or more more

7

5 6

2 3 4

1

6,75 7.75

5.00 5.75

3.75 4.50

1. Supdts. of C. Ex.

5.00

3.75 4.50

2.50 3.00 3.25

2. Insprs. of C.Ex.

3. Sub-Insprs. of

2,75 3.00

1.75 2.00 2.25

1.50

C. Ex.

2.00

1.25 1.50 1.75

1.00 1.25

4. Class IV staff

[No. CER 7/70]

Poona, the 12th October, 1970

S.O. 1256,—In exercise of the powers conferred on me under Rule 173-C(1) of the Central Excise Rules, 1944, 1 hereby make the following amendment in the Poona Central Excise Collectorate Notification No. CER/7/68 dated the 12th September, 1968, namely :—

In the said Notification, for the words "Price List, which shall be filed in quadruplicate" the words "Price lint, which shall be filed in triplicate" shall be substituted.

[No. CER/8/70]

[F. No. VCiN(30) 34/Tech. A/70)]

MINISTRY OF COMMERCE

New Delhi, the 5th May, 1973

S.O. 1258.—In exercise of the powers conferred by sec- tion 7 of the Export (Quality Control and Inspection) Act, 1963 (22 of 1963), the Central Government hereby recognises for a period of one year the Government of Orissa Analyti- cal Laboratories at Jaipur Road (District Cuttack) and Joda (District Keonjhar), as the agency for the inspection of the Minerals and Ores-—Group I, specified in schedule II annexed to the notification of the Government of India in the late Ministry of Commerce, No. S.O. 3152, dated the 30th Sep- tember, 1965, and directs that the following further amend- ment 6hall be made in the said notification, namely :—

In the said notification, in Schedule I, after Serial No. 15 and the entry relating thereto, the following Serial No. shall be inserted, namely :—

"16. The Government of Orinsu Analytical Laboratories at Jaipur Road (District Cuttack) and Joda (District Keonjhar)."

[No. 5(5)/72-E1 & EP]

Poona, the 26th October, 1970

S.0.1257.—la exercise of the powers conferred on me under rule J of the Central Excise Rules, 1944, I empower the officer specified In column 3 of the subjoined Table to exercise within the jurisdiction of the Poona Central Excise Collectorate the powers of the Collector under the Central Excise Rules enumera- ted in Col. 2 there of subject to the limitation set out in col. 4 of the said Table.

Rank of Officer Limitations, if any

SI. No.

Central Ex- cise Rule

1

2

3

4

1. 191-A.

Deputy Collector of Central Excise, Poona.

Power for approval of manufactur- ing formula.

Do.

2. 191-B.

Do.

D.N. LAL, Collector, No. CER/9/1970 [F. No. VGN(3O)8O/TA/7O]

S.O. 1259.—In- exercise of the powers conferred by sec- tion 7 of the Export (Quality Control and Inspection) Act, 1963 (22 of 1963), the Central Government hereby recognises for a period of one year the Government of Orissa Analyti- cal Laboratories at Jaipur Road (District Cuttack) and Joda (District Kconjhar), as the agency for the inspection of the Minerals and Ores—Gioup II, specified in Schedule II annexed to the notification of the Government of India in the late Ministiy of Commerce No- S.O. 3150, dated the 30th Sep- tember, 1965, and directs thut the following further amend- ment shall be made in the s;ud notification, namely:—

In the said notification, in Schedule I, niter Serial No. 18 and the entry relating thereto, the following Serial No. shall be inserted, namely :—

"19. The Government of Otissa Analytical Laboratories at Jaipur Road (District Cuttack) and Joda (District Kconjhar).''.

[No. 5(5)/72-Iil&EP]

ORDER New Delhi, the 5th May, 1973

SO1260—Whereas for the development of the export trade of India, certain proposals for amending the notification of the Go- vernment of India in the Ministry of Foreign Trado Mo. S.O. 5054 dated the 29th December 1969 regarding dried shark fins, were published as required by sub-rule (2) of rule 11 of the Export (Quality Control and Inspection) Rules, 1964, in the Gazette of India, Part II, Section 3, sub-section (ii), dated the 3rd June 1972, under the notification of the Government of India in the Ministry of Foreign Trade S.O. 1385 dated the 3rd June 1972.

And whereas objections and suggestions were invited till the 2nd July, 1972 from all persons likely to be affected thereby; And whereas the copies of the said Gazette was made available to the public on the 3rd June 1972. And whereas the objections and suggestions received from the public on the said draft have been considered by the Central Go- vernment;

Now, therefore, in exercise of the powers conferred by section 6 of the Export (Quality Control and Inspection) Act, 1963 (22 of 1963) the Central Government being of the opinion that it is necessary and expedient so to do for the development of export trade of India, hereby makes the following amendment in the notification of the Government of India in the Ministry of Foreign Trade No. S.O. 3054 dated the 29th December 1969, namely :

In the Annexure to the said notification, for the heading "A. Specification for Dried Shark Fins" and the entries thereunder, the

following heading and entries shall be substituted, namely :~~

ANNEXURE

"A. Specifications for Dried Shark Fins

Size grades based on length in Cms

Odour

General characteristics

-—i Colour

Types

Caudal Fins**

•Dorsal, Ventral and pectoral fins

6

5

3

2

1 (i) White (ii) Black

Grade A : Below 20 cm B : 20 cm and

Grade A : Below 30 cm B : 30 cm and

4 Characteristic White Black or spotted colour of the species

below 30 cm

below 40 cm

Characteristic Odour of dried meat, but shall be free from any off odour

C : 30 cm and C : 40 cm and

above

above

Dried shark fins shall be prepared from fresh shark. The material shall be properly dried and free from fungal, insect and mite in- festation. It shall also be free from any visible contamination. In the preparation of this material, the dorsal, ventral, pectoral and caudal (tail) fins of edible sharks shall be used. There shall be no excess visible flesh on the cut-ends. The caudal (tail) fins shall be without back bone unless otherwise agreed to between the exporter and the foreign buyer.

Note. * A tolerance of 5 % by weight of the next higher or lower size grade or both shall be permitted.

**A tolerance of 10% by weight of the next higher or lower grade of both shall be permitted.

Definitions : (i) "Length of fins" shall mean length of fins measured from tip to upper or anterior corner.

(ii) For tne purpose of inspection, "white" shall include yellowish white, and "black" shall include greyish black including the spotted varieties. In the case of pectoral fins, colour of the outer or upper side of the fins shall be taken into consi- deration."

[No. 6(18)/71-LI&EP]

ORDER

S.O. 1261.—Whereas, for the development of the export trade of India, certain proposals for amending the notification of the Government oflndia in the Ministry of Foreign Trade, No. S.0.2137, dated the 5th June, 1970, regarding dried fish were published as re- quired by sub-rule (2) of rule 11 of tho Export (Quality Control and Inspection) Rules, 1964, in the Gazette of India, Part II, Section 3, Sub- section (ii), dated the 9th September, 1972 under the notification of the Government oflndia in the Ministry of Foreign Trade, No. S.O. 2532, dated the9th September 1972;

And whereas objections and suggestions were invited till the 9th October, 1972 from the persons likely to be effected thereby; And whereas the copies of the said Gazette were made available to tho public on the 9th September, 1972; And whereas objections and suggestions received from the public on the said draft have been considered by the Central Govern-

ment;

Now, therefore, in exorcise of the powers conferred by section 6 of the Export (Quality Control and Inspection) Act, 1963 (22 of 1963), the Central Government, after consulting tho Export Inspection Council, being of the opinion that it is necessary and expendicnt so to do for the development of the export trade of India, hereby makes the following amendments to tho notification of the Government so India in the Ministry of Foreign Trade, No. S.O. 2137, dated the 5th June, 1970, namely:—

In the said notification,—

(1) in Annexure I, under the heading "Varieties of dried flsh", after Serial No. 36 and the entries relating thereto, the following

Serial Nov and entries shall be added, namely:—

"37, Dired Bombay Duck

(Harpodon nehereus)

38. Laminated Bombay Duck

(Harpodon nehereus).";

(2) in Annexure II, under the heading "Specifications for dried fish", after Serial No. 36 and the entries relating thereto, the following

Serial Nos. and entries shall be added, namely:—

Standards of quality

• i

Method of cure Size

Smell

Appearance

Other Remarks

Dry age

in brief

Scientific name

Foreign matter

Serial Variety No.

(Specie;,)

4

5

6

3

7

8

1 2

9

10

Sundried or

— Characteristic

"37. Dried Bombay Harpodon nchereus

Duck

Moisture 20% by weight, maximum

dried in artifi- cial drier under hygienic condi- tions

Character- istic flavour free from any rancid odour

Acid insolu- ble ash (on moisture freo basis, maxi- mum 1 %).

colour free from any pink dis- colouration

Prepared by

-do-

-do-

38. Laminated

-do-

Bombay Duck

Moisture 15% by weight, maximum.

Acid insoluble ash (on mois- ture free basis 1 % maximum)"

Large 15 cm, and above, Small-Less than 15 cm.

suitable pressing of dried flsh, after removing head, fins and entails, sides trimmed to get pieces of uni- form size.

[No. 6(19)/71-EI & EP] M. K. B. BHATNAGAR, Under Secy.

MINISTRY OF FOREIGN TRADE

(Office of the Dy. Chief Controller of Imports & Exports) (Iron and Steel)

CANCELLATION ORDER

Faridabad, the ,1973.

S.O. 1261.—-M/s, Watkins Mayor & Co., Nehru Gardens Road, Jullundur City were granted an Import Licence No, P|D|8560988|T|OR|41|D|33-34 dated 6-12-71 for import of 145 M/T of the item High Carbon Steel Sheets for Rs. 176,787 under Rupee ceiling for the licensing period April—March, 72 with the validity of 18 months. The parly have applied for duplicate copy of the licence (both ECP & CCP Copies) on the ground that the original Import licence has been mis- placed. The party have further stated that the original Import licence was not registered with any customs authority and was not utilised at all. In support of this contention, the applicant has filed an affidavit.

I am satisfied that the original Import licence No. P / D/ 8560988 dated 6-12-71 has been misplaced, and direct that (as the import of the item has now been canalised through HSL) a Release Order be issued to the applicant for the full value of Rs. 1,76,787 in cancellation of the original Import licence.

[No. P|W-1|AM-72|EX|AU|LME-LC-I|DCCF] K. N. KAPOOR, Dy Chief Controller, DEPARTMENT OF ATOMIC ENERGY

Bombay, the 10th April, 1973

S.O. 1263 —In exercise of the powers conferred by Section 3 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (40 of 1971), the Central Government hereby appoints the officer mentioned in column (1) of the Table below being an officer equivalent to the rank of a gazetted officer of government to be the estate officer for the purposes of the said Act, and the said officer shall exercise the powers conferred and perform the duties imposed on estate officers by or under the said Act, within the local limits of his jurisdic- tion in respect of the public premises specified in column (2) of the said Table.

TABLE

Designation of the Officer Categories of public premises and local limits of jurisdic- tion.

Chief Administrative and Accounts Officer, Tarapur Atomic Power Station P.O. Tarapur, Dist. Thana (Maharashtra)

Premises (office and residential belonging to or under the management of the Tarapur Atomic Power Station in Palghar and Dalian Taluks, Dist., Thana, Maharashtra State

[(FlleNo.13/2/73-(H)] TARLOK SINGH, Under Secy

And further in exercise of the rtower conferred by sub- section (4) of that Section, the Central Government directs thai the light o_f user in the said lands shall instead of vesting in the Central Government vest on this date of the publication of this declaration in the Oil & Natural Gas Commission fiee from all encumbrances.

SCHIiDULL

Pipeline from Well No. 145 to G.G.S. VII ( Well No.

K.-144)

State : Gujarat Dist. & Taluk* : Gandhi Nagar

Village Block No.

Hectare

P.Are

Are

TARAPUR . 238 237 216 234 235

0 0 0 0 0

7 10 12 15 3

76 80 17 50 66

Survey No.

UVARSAD

. 857/P+858/1

0 0 0 0 0 0 0 0

15 1 1 8 2 7 00 5

V.P. Cart track 938/3 935/3 D.L.B.Road 934/3 934/4 934/1

01 77 00 30 93 32 50 77

[No. 11/2/72-L&L]

MINISTRY OF PETROLEUM AND CHEMICALS (Department of Petroleum)

New Delhi, the 23rdApril, 1973

S,O. 1264.—Whereaa by a notification of the Government of India in the Ministry of Petroleum and Chemicals (Department of Petroleum) S. O. No. 3963 dated 31-10-1972 under sub-section (1) of section 3 of the Petroleum Pipelines (Acquisition of Right of User in land) Act, 1962 (50 of 1962), the Central Government declared its intention to acquire the Right of User in the lands specified in the schedule appended to that notification for the purpose of laying pipelines;

And whereas the Competent Authority has under sub- section (1) of section 6 of the said Act, submitted report to the Government;

And further whereas the Central Government has after considering the said report, decided to acquire the right of user in the lands specified in the schedule appended to this notification;

Now therefore in exercise of the powers conferred by sub-section (1) of the section 6 of the said Act, the Central Government hereby declares that the right of user in the said lands specified in the schedule appended to this notifica- tion hereby acquired for laying the pipelines;

SCHEDULE

Pipeline From Well No. K-144 To G.G.S. VII State : Gujarat Distt. & Tal. : Gandhlnagar

Are P.Are

Village

Survey No.

Hectare

UVARSAD

.  926                    0        4      91
  933                     0       12      59
   927                    0       26      36
   928                    0       13      37
   917/5/6                0       10      95
   Cart  track            0        1      44
  963/1/1                 0       11      35
  963                     0       2       76
  966/2                   0        3      81
  Cart  Track             0       00      77
  964/2                   0       00      50
  965                     0      26       23
  980/1                   0        1      67
  981/2/B                 0       13      46
  981/1                   0       2       40
  994                     0        5      69
  985/3/2/2               0       7       27
  985/3/2/1               0        5      13
  993/4/2                 0      13       48
  990                     0      13      41
  991                     0      13      86
  V.P.Cart  track         0       1       21
  1087                    0       6      29
  1086                    0      00       50
  1085/1                  0       6      08
  1084/1                  0       3      20
  1084/2                  0       9      41
  1081/3                  0       8      08
  1082                    0      18      68
  1076                    0       1      90
  |.P.  Road             0        1      00
  1100                    0       1      08
  1105                   0        5      70
  1104                   0        2      40
  1107                   0        3      72

S O. 1265.—Whereas by a notification of the Government of India in the Ministry of Petroleum and Chemicals (Department of Petroleum) S. O. No. 3962 dated 31-10-1972 under sub-section (1) of section 3 of the Petroleum Pipelines (Acquisition of Right of User in land) Act, 1962 (50 of 1962), the Central Government declared its intention to acquire the Right of User in the lands specified in the schedule appended to that notification for the purpose of laying pipelines;

And whereas the Competent Authority has under sub- section (1) of section 6 of the said Act, submitted report to the Government;

And further whereas the Central Government has after considering the said repoit. decided to acquire the light of user in the lands specified in the schedule appended to this notification;

Now therefore in exercise of the powers conferred by sub-section (1) of the section 6 of the said Act, the Central Government hereby declares that the right of user in the said lands specified in the schedule appended to this notifica- tion hereby acquired for laying the pipelines;

And further in exercise of the power conferred by sub- section (4) of that Section, the Central Government directs that the right of user in the said lands shall instead of vesting in the Central Government vest on this date of the publication of this declaration in the Oil & Natural Gas Commission free from all encumbrances. 11 G of 1/73—6.

SCHEDULE

Pipeline From D.S.K-148 To G.G.S. VII (VIA Well No. K144)

State : Gujarat DIstt. & Tal.: Gandhi Nagar

Village

Hectare

Block No.

P.Are

Are

TARAPUR

2 00 5 5 10 5 6 0 11 6 9 10 1

0 0 0 0 0 0 0 0 0 0 0 0 0

29 00 07 53 91 19 67 73 53 34 15 01 71

. 195 194 193 196 197 198 207 V.P. Cart track 211 209 210 234 V.P. Cart track Survey No,

UV ARSAD .

0 0 0 0 0 0 0 0

1 4 8 2 5 8 4 7

22 84 53 50 06 50 59 81

. 940/2 939/4 939/2+3 938/4 D.L.B. Road 938/1 935/3 934/1

[No. 11/2/72-I.&L]

S,O. t266.-—Whereas by a notification of the Government of India in the Ministry of Petroleum mid Chemicals (Department of Petroleum) S. O. No. 3964 dated 31-10-1972 under sub-section (1) of section 3 of the Petroleum Pipelines (Acquisition of Right of User in land) Act, 1962 (50 of 1962), the Central Government declared its intention to acquire the Right of User in the lands specified in the schedule appended to that notification for the purpose of laying pipelines;

And whereas tho Competent Authority has under sub- section (1) of section 6 of the said Act, submitted report to the Government;

And further whereas the Central Government has after considering tho said report, decided to acquire the right of user in the lands specified in the schedule appended to this notification;

Now therefore in exercise of the powers conferred bv nub-section (1) of the section 6 of the said Act, the Centnil Government hereby declares that the right of user in the said lands specified in the schedule appended to this notifica- tion hereby acquired lor laying the pipelines;

And further in exercise of the power conferred by sub- section (4) of that Section, the Central Government directs that the right of user in the said lands shall instead of vesting in the Central Government vest on this date of the publication of this declaration in the Oil & Natural Gas Commission free from all encumbrances.

New Delhi, the 24th Apiil, 1973

S.O. 1267.—Whereas by a notification of Ihc Government of Inclio in the Ministry of Petroleum and Chemicals (Department of Petroleum) S. O. No. 3906 dated 14-11-1972 under sub-section (1) of section 3 of the Petroleum Pipelines (Acquisition of Right of User in land) Act, 1962 (50 of 1962), the Ccntial Government declaied its intention to acquire the Rifhl of User in the lands specified in the schedule appended to that notification for the puropse of laying pipelines;

And whereas the Competent Authority has under sub- section (1) of section 6 of the said Act, submitted report to the Government;

And further whereas the Ccnttal Government hu!= after considering the said report, decided to acquire the right of user in the lands specified in the schedule appended to this notification;

Now thcrefoie in exercise of the powers conferred by sub-section (1) of section 6 of the said Act, the Central Government hereby declares that the right of user in the said lands specified in the schedule appended to this notifica- tion hereby acquired for laying the pipelines;

And further in exercise of the power conferred by sub- section (4) of that Section, the Central Government directs that the right of user in the said lands shall instead of vesting in the Central Government vest on this date of tho publication of this declaration in the Oil & Natural Gas Commission free from all encumbrances.

SCHEDULE

Pipeline from Woll No. 157 to 44 to G.G.S. Ill State ! Gujarat Dirt. : Broach TaL : Ankleshwar

Are Village

Survey No,

Hoc tare Are P.

ADOL

95 95 25 25 90 25 50 . 710/1 710/2 712/1 712/2 711 669 670

1 1 3 3 3 3 4

0 0 0 0 0 0 0

[No. 11/2/72-L&L] S.O. 1268.-—Whereas by a notification of the Government of India in the Ministry of Petroleum and Chemicals (Department of Petroleum) S. O. No. 3908 dated 14-11-1972 under sub-section (I) of section 3 of the Petroleum Pipelines (Acquisition of Ri^ht of User in land) Act, 1962 (50 of 1962), the Central Government declared its intention to acquire the Right of User in the lands specified in the schedule appended to that notification for the purpose of laying pipelines;

And whereas the Competent Authority has under sub- section (1) of section 6 of the said Act, submitted report to Ihc Government;

And further whereas the Central Government has aftei considering the said report, decided to acquire the right of user in the lands specified in the schedule appended to this notification;

Now therefore in exercise of the powers conferred by sub-section (1) of the section 6 of the said Act, the Central Government hereby declares that the right of user in the said lands specified in the schedule appended to this notifica- tion hereby acquired for laying the pipelines;

And further in exercise of the power conferred by sub- section (4) of that Section, the Central Government directs that the right of user in the said lands shall instead of vesting in the Central Government vest on this date of the publication of this declaration in the Oil & Natural Gas Commission free from all encumbrances.

SCHEDULE

Pipeline from Woll No. 146 to 132 to G.G.S. Ill

State : Gujarat DIst. : Broach TBI. : Ankleshwar

Village Survey No.

Hectare Are I> Arc

ADOL

. 623 624

2 12

08 35

0 0

[No. 11/2/72-L&L]

And further in exercise of the power conferred by sub- section (4) of that Section, the Central Government directs that the right of user in the said lands shall instead of vesting in the Central Government vest on this date of the publication of this declaration in the Oil & Natural Gas Commission free fiom all encumbrances.

SCHEDULE

Pipeline From Well No. 145 To 109 To G.G.S. XIV

State : Gujarat DIst. : Broach Tal. : Ankloshwar

Village

Survey No.

Hectare Are P. Are

ADOL

. 305/1 305/2 304 306

0 0 0 0

2 2 18 18

28 27 85 58

[No. 11/2/72-I&L1

S,O. 1269—Whereas by a notification of (he Government of India in the Ministry of Petroleum mid Chemicals (Department of Petroleum) S. O. No. 3905 dated 14-11-1972 under subjection (1) of section 3 of the Petroleum Pipelines (Acquisition of Right of User in land) Act, 1962 (50 of 1962), the Central Government declared its intention to acquire the Right of User in the lands specified in the schedule appended to that notification for the purpose of laying pipelines;

And whereas the Competent Authority has under sub- section (1) of section 6 of the said Act, submitted report to the Government;

And furthei whereas the Central Government has after considering the said report, decided to acquire the right of user in the lands specified in the schedule appended to this notification;

S.O. 1270.—Whereas by a notification of the Govt. of India in the Ministry of Petroleum and Chemicals (Depart- ment of Petroleum) S. O. No. 3907 dated 14-11-1972 under sub-Section (1) of Section 3 of the Petroleum Pipe- lines (Acquisition of Right of User in land) Act. 1962 (50 of 1962), the Central Government declared its intention to acquire the Right of User in the lands specified in the sche- dule appended to that notification for the purpose of laying pipelines,

Now therefore in exercise of the powers conferred bv sub-section (1) of the section 6 of the said Act, the Central Government hereby declares that the right of user in the said lands specified in the schedule appended to this notifica- tion hereby acquired for laying the pipelines;

And whereas the Competent Authority has under sub- Section (1) of Section 6 of the said Act, submitted report to the Government,

And further whereas the Central Government has after considering the said report, decided to acquire the right of user in the lands specified in the schedule appended to this notification,

Now therefor in exercise of the Power conferred by sub- Section (1) of the Section 6 of the said Act, the Central Government hereby declares that the right of user in the said lands specified in the schedule appended to this noti- fication hereby acquired for laying the pipelines,

And further in exercise of the power conferred by sub- Section (4) of that Section, the Central Government directs that the right of user in the said lands shall instead of ves- ting in the Central Government vest on this date of the pub- lication of this declaration in the Oil &. Natural Gas Com- mission free from all encumbrances.

(

SCHEDULE

Pipeline From Well No. 182 to 162 To GGS II State : Gujarat DIst. : Broach Tal. : Ankieshwar

\TC Survey No.

Hectare

Village

P. Are

SARTHAN

. 147/1 147/2 149

0 0 0

8 K 10

45 45 40

[No. 11/2/72-L&L] S.O, 1271.—Whereas by a notification of the Govt. of India in the Ministry of Petroleum and Chemicals (Depart- ment of Petroleum) S. O. No. 3750 dated 30.8.1972 under sub-Section (1) of Section 3 of the Petroleum Pipelines (Acquisition of Right of User in land) Act, 1962 (50 of 1962), the Central Government declared its intention to ac- quire the Right of User in the lands specified in the schedule appended to the notification for the purpose of laying pipe- lines,

And whereas the Competent Authority has under sub- Section (1) of Section 6 of the said Act, submitted report to the Government,

And further whereas the Central Government has after considering the said report, decided to acquire the right of user in the lands specified in the schedule appended to this notification,

Now therefore in exercise of the Power conferred by sub-Section (1) of the Section 6 of the said Act, the Central Government hereby declares that the right of user in the said lands specified in the schedule appended to this notifi- cation hereby acquired for laying the pipelines,

And further in exercise of the power conferred by sub- Section (4) of that Section, the Central Government directs that the right of user in the said lands shall instead of vesting in the Central Government vest on this date of the publication of this declaration in the Oil & Natural Gas Commision free from all encumbrances.

SCHEDULE

Pipeline From D.s. Dabka 4 to Flare Point

State : Gujarat Dist. : Broach Tal : Janibusar

Villacc

Survey No.

Hectcuc Are P. Are

541

KANWA .

0

31 25

[No. 11/2/72-L &L] R. N. CHOPRA, Under Secy.

MINISTRY OF INDUSTRIAL DEVELOPMENT, SCIENCE AND TECHNOLOGY

New Delhi, the 18 April, 1973

INDIAN STANDARDS INSTITUTION

S. O, 1272—In pursuance of sub-regulation (1) of Regulation 5 of tho Indian Standards Institution (Certification Marks) Regulations,'l955, as amended from time to time, it is, hereby, notified that tho Indian Standards, particulars of which ato mentioned in the Schedule given hereafter, havo been cancelled :

SCHEDULE

Remarks SI. No. and Title of the Indian Standard No. Cancolled

S.O.No. and Date of Gazette Notification in which Establishment of the Indian Standa- rd was notified

(4)

(3)

(1) (2)

1. 13:610—1955 Cjic of practice for storage of

food gcainanJ it3 protection during storage

¹ S.R.O. 710 dated 16 March, 1956 published in tbo Gazette of India, Part 11, Section-3 dated 24>larch, 195ft.

S R.O. 710 dated 16 March, 1956 published

2, TS:611-1955 Coilc of practice for handling

of food grain

in the Gazette of India, Part II, Section- 3 dated 24 March, 1956.

Cancelled in view of publication ofTS:G15) (Pt. 11)-1971 Storage management code Fart 11 General care m handling and storago of agricultural produce and inputs. Cancelled in view of publication of IS:6151 (Pt 11)-1971 Storage management code Part 11 General cere in handling and storage of agricultural produce and in-

S.0.2110 dated 17 September, 1959 published

3. IS:1291—1958 Specification for cattle

licks (plain & mineralized)

Cancelled in view of publication of TS;920—1977 Specification for common salt and cattle licks for animal consump- tion.

in the Gazette of India, Part II, Seclion- 3, Sub-section (ii) dated 26 September, 1959

4, IS:1510—1959 Specification for tapioca floui

for animal feed

(llrst revision) Cancelled in view of publication of IS: 1509-1972 Specification for lepicta ae live stock feed.

: S.0.2494 dated 5 October 1960 published in the Gazette of India, Part II, Section-3, Sub-section (ii) dated 15 October, 1960

(first revision)

5 IS:2555—I96J Specification for official

test insecticide

Cancelled in view of publication of IS: 1824—-1971 Specification for household insecticidal spray.

S.O. 950 dated 6 March, 1964 published in the Gazotte of India, Part II, Section-3, Sub-section (ii) dated 21 March, 1964

(first revision)

rx Tp r M n n

• 7i

New Delhi, the 16th April, 1973

MINISTRY OF HEALTH AND FAMILY PLANNING

(Department of Health)

ORDER

New Delhi, Ihe 13th April, 1973

S.O. 1273.—Whereas by (he notification of the Govern- ment of India in the Inte Ministry of Health No. S.O. 2446 dated the 23rd July, 1962, the Central Government has directed that (he mcdicnl qualification, "M.D." granted by the Uni- versity of Georgetown, Washingdon, shall be a recognised medical qualification for (he purposes of the Tndian Medical Council Act, 1956 (102 of 1956);

And whereas Dr. Eileen Niedfield who possesses the said qualification and is registered medical practitioner in her own country is lor the tune being attached fo (ho Holy l-'arnily Hospital, Mandar, Ranchi District for the purposes of teaching, reseaich and charitable work;

Now, therefore, in pursuance of clause (c) of the proviso to sub-section (1) of section 14 of the said Act, the Central Government hereby specifies—

(i) a fin thei' period ending with the 31st December, 1973, or

(ii) the period during which Dr. Eileen Nicdfield is attached to the said Holy Family Hospital, Mandar, Ranchi District whichever is shorter, as the period to which the medical pi.icticc by (he aforesaid doctor shall be limited.

[No. V. 11016/17/72-MPT] S.O. 1274.—Whereas the Central Government has, in pursuance of the provisions of sub-Section (3) of Section 20 of the Indian Medical Council Act, 1956 (102 of 1956), (hereinafter referred to as the said Act) read with sub-rule (2) of fule 4 of the Indian Medical Council (Post-graduate Medical Education Committee) Rules, 1961, nominated Col. M. T

Now, therefore, in exercise of the powers conferred by sub-Section (1) of Section 20 of the said Act, the Central Government hereby makes the following amendment in the notification of the Government of India in the late Ministry of Health and Family Planning and Works, Housing and Urban Development (Department of Health) No. S, O. 1475, dated the 13th April, 1970, namely:—

In the said notification, under the heading ''Nominated by the Central Government", for the entry against serial No. 6, the following entry shall be substituted, namely:

"Col. M. Tajuddin, MBBS, MD, DTM & H, Professor of Medicine and Principal, Medical College, Aligarh"

[No. V.I 1019/1 /73-MPT]

MINISTRY OF TOURISM AND CIVIL AVIATION

New Delhi, the 24th April, 1973

S.O. 1276.—In exercise of the powers conferred by rule 75 of the Aircraft Rules, 1937, the Central Government hereby extends npto the 30th lunc, 1973, the period oi time within which the Court of Inquiry appointed by the Government of India in the Ministry of Tourism and Civil Aviation by notification No. Av. 15013/9/73-A dated the 21st March, 1973, will be expected to complete its inquiry into the matters specified in the notification mentioned above and report to the Central Government.

[File No. Av. 15013/9/73-A]

S. N. KAUL, Dy. Secy.

ORDER

New Delhi, the 18th April, 1973

S.O. 1275.—Whereas by the notification of the Govern- ment of India in the late Ministry of Health No. 17-2/60- MI, dated the 22nd April, 1960, the Central Government has directed that the Medical qualification, M. D. (Pennsyl- vania, USA) shall be a recognised medical qualification for the purpose of the Indian Medical Council Act, 1956 (102 of 1956),

And whereas Dr. (Miss) Helen C. Lalinsky, who posses- ses the said qualification is for the time being attached to the Holy Family Hospital, Mandar, District Ranch i for the purposes of charitable work,

Now therefore, in pursuance of clause (c) of the proviso to sub-Section (1) of Section 14 of the said Act, the Central Government hereby specifies:—

(i) a further period ending on the 31st December, 1973,

or

(ii) the period during which Dr. (Miss) Helen C. Lalinsky is attached to the said Holy Family Hos- pital, Mandar, District Ranchi, whichever is shorter, as tho period to which the medical practice by the aforesaid doctor shall be limited.

[No. V. 11016/2/73-MPT]

KM. SATHI BALAKR1SHNA, Under Secy.

MINISTRY OF SHIPPING AND TRANSPOR1

(Transport Wing)

New Delhi, the 29th March, 1973

S.O. 1277.—The following draft rules further to amend the Motoi Vehicles (Third Party Insurance) Rules, 1946, which the Central Government proposes to make in exercise of the powers conferred by section 111 of the Motor Vehicles Act, 1939 (4 of 1939), is published for the information of persons likely to be affected thereby, and notice is hereby

given that the said draft will be taken into consideration after the 15th May, 1973 or after the expiry of a period of thirty days from the date on which the gazette copies con- taining the said rules are made available to the genera) public, whichever is later.

Any objections or suggestions, which may be received from any person with respect to the said draft before (he date specified above, will be considered by the Central Government.

DRAFT RULES

1. These rules may bo tailed the Motor Vehicles (Third

Party Insurance) Amendment Rules, 1973.

2. In rule 15B of the Motor Vehicles (Third Party Insu- rance) Rules, 1946, for sub-rule (1), the following sub-rule shall be substituted, namely :—

MINISTRY OF INFORMATION AND BROADCASTING

New Delhi, the 31st March, 1973 "15B,—(1) The Fund shall bo established with an initial amount of not less than rupees one lakh and the said amount shall be kept in deposit with -the bank or the Government.".

[No. 41-TAGUV70]

N. A. A. NARAYANAN, Under Secy.

. .S.O. 1278.—In exercise of the powers conferred by section 5(1) of the Cinematograph Act, 1952 and sub-rule (3) of rule 8 road wilh sub-rule 2 oi rule 9 of the Cinematograph (Censorship) Rules, 1958, the Central Government hereby re- appoints the following persons after consultation with the Central Board of Film Censors as members of the Advisory Panel of the said Board at Bombay with effect from lsf April, 1973 upto 30th June, 1793 :—

1. Shri Kamaleshwar 2. Prof. K. G. Aggarwal 3. Shri S. S. Rese 4. Prof. (Smt.) Vijaya Rajadhyaksha 5. Shri D. G. Nadkarni 6. Prof. Murli Thakur 7. Shri G. K. Dutia 8. Dr. (Smt.) Charushccla B. Gupta. 9. Smt, Kamala Tilak

10. Smt. Padma K, Desai 11. Dr. (Miss) Labuben S. Soneji 12. Smt. Nalini S. Sukth.ankar 13. Smt. Manibcn Desai 14. Smt. T, V. Dehejia 15. Smt. Laxmi Wahi 16. Shri S, D. Shah 17. Shri Ganfia Ram Josh! 18. Shri Rama Narang 19. Shri S. E. Hassnain 20. Smt. Kamala Dua 21. Shri Talakshi Shah 22. Shri Rajnarain Singh 23. Smt. R. S. BOga 24. Shri A. K. Banerjee 25. Shri Rasik J. Shah 26. Smt. Mrinalini Choksi 27. Smt. Lalita N. Bapat 28. Smt, S. Gulrajani

[F. No. 11/3/72-FC]

11 G of 1/73—6

8. Prof. M. Mariappa Bhat

y. Smt. Maiy Clubwalu Jadhav

10. Shi i P, K. Ramalinsam 11. Shri G. Varadappa 12. Smt. R. Suvarna 13. Smt. P. V. Bhugirathi 14. Smt. Berthu Ixibo 15. Sml. Indira D. Kothari 16. Smt. Mulati Chcndur 17. Shri C. R. Sarma 18. Shri P. S. Srinivasu 19. Smt. Raji Rangachari 20. Smt. Padmini Achutha Menon 21. Smt. N. S. Mnni 22. Dr. S. Vijayalakshmi 23. Smt. Leela Parthasarlhi 24. >tumari P. Shanta Bai 25. Smt. M. T-eelavathi 26. Smt. Sarojini Varadappan 27. Smt. Rohini Krishnachandra 28. Dr. (Miss) C. M. Leclavati 29. Smt. Hemlata Anjaneyulu 30. Smt, Sara Syed Yusuff

[F, No. 11/4/72-FC]

S.O. 1279.—Tn exercise of the powers conferred by Section 5(1) of the Cinematograph Act, 1952, and sub-rule (3) of rule 8 rend with Sub-rule (2) of rule 9 of the Cinematograph (Censorship) Rules, 1958, (he Central Government hereby re-appoints (he following persons after consultation with the Central Board of Film Censors, as members of the Advisory Panel of (he said Board at Madras with effect trom 1st April, 1973 upto 30lh June, 1973 :—

S.O. 1280.—In exercise of the powers conferred by section 5(1) of the Cinematograph Act, 1952, and nub-rule (3) of rule H read with sub-rule (2) of rule 9 of the Cinematograph (Censorship) Rules, 1958, the Central Government hereby re-nppoints the following persons after consultation with the Central Board of Film Censors, as members of the Advisory 1. Shri T. Neeiakanthfin 2. Smt. Soundra Kailaiam 3. Shri Pakala Suryannrayana Rao 4. Shri IVfohd, Yousuf Kokan 5. Shri M. Govindan 6. Smt, C. 1.. Mecnakihi Atnma 7. Shri P. V. Chaiapathtswara Rao

PuncI of the said Board at Calcutta with effect from 1st April. 1973 upto 30th June, 1973 >-

1. Smt. Unia Sahanabis

2. Shri Sailen Mookerjc

3. Smt. Kajal Sea Gupta

4. Smt. Abu Sayeed Ayyub

5. Smt. Shaibya Dutt

MINISTRY OF IRRIGATION AND POWER

6. Smt. Asha Purna Dcbi

7. Smt. Rita Ray

8. Shri Siijit K, Chakrabartl

9. Shri R. P. Gupta

10. Shri Anant Mahapatra

11. Shri Saumycndra Nath Tagorc

12. Smt. Usha Khan

13. Shri Ranen Ayan Dull;'.

14. Smt. Jayasree Sen

[F. Nu. 11/5/72-FC] New Delhi, the 10th April, 1973

S.O. 1282.-—In exercise of the powers conferred by sub- section (1) of section 36 of the Indian Electricity Act, 1910 (9 of 1910), the Central Government hereby appoint the Chief Electrical Inspector to the Government of Kerala to be the Electrical Inspector in respect of the Union territory of Laccadive, Minicoy and Amindivi Islands and the Regional Electrical Inspector and the Assistant Electrical Inspector at Calicut as officers to assist the Chief Electrical Inspector.

[No. EL. U-4(4)/67]

M. RAMANATHAN, Dy. Director (Power)

MINISTRY OF LABOUR AND REHABILITATION

(Department of Labour and Employment)

New Delhi, the 24th April, 1973

S.O. 1283.—In pursuance of section 17 of the Industrial Dis- putes Act, 1947 (14 of 1947), the Central Government hereby publishes the following award of the Cenlral Government Industrial Tribunal, No. 3, Dhanbad, in the industrial dispute between the employers in relation to the management of Kharkharee Colliery of Hharai Mining Corpoiation Limited, Post Office Kharkhiircc, District Dhanbad and their workmen, which was received by the Central Government on the 17th April, 1973.

CENTRAL GOVERNMENT TNDUS1 RIAL TRIBUNAL- CUM-LABOUR COURT NO. 3, DHANBAD

Reference No. 38 of 1969

Present:

Shri B. S. Tripathi, Presiding Officer.

Parties:

S.O. 1281.—In exercise of the powers conferred by sub- section (1) of section 3 of the Cinematograph Act, 1952, the Central Government hereby re-appoints the rollowinj per- sons as members of the Central Board of Film Censors with effect from 1st April, 1973 upto 30th June, 1973 :—

1. Shri B. R. Agnrwal

2. Shri A. L. Sriniv.isan

3. Shri B. R. Chopra

4. Shri B. N. Sircar

(1) Management of Kharkharee Colliery of Bharat Mining Corporation Limited, P.O. Khartchaiee. District Dhanbad.

(2) Bharat Coking Coal limited, Dhanbad (added as a party to the proceeding as per Order No. 9,3 dated 23-3-72).

AND

Their workmen represented by Bihar Kovla Mazdoor Sabha, Phanbad.

Appearances :

5. Smt. Veena Duggal

6. Smt. M. Nasrullah

7. Smt. Surrinder Gupta

8. Shii C, R. Sundamm

[F. No. 11/6/72-FC1

HARJIT SINGH, Under Secy, For M/s. Bharat Mining Corporation Limited—Sht?

P. K. Bose, Advocate.

For Bharat Coking Coal Limited—Shri S. S. Mukherjee, Advocate.

For Workmen—Shri Lalit Burman, General Secretary, Bihar Koyla Mazdoor Snbha,

State : Bihar.

Industry : Coal.

Dhanbad, the 10th April, 1973

AWARD

The Cenlral Governnienf in (he Ministry of Labour, Employment & Rehabilitation (Department of Labour & Employment) being of the opinion that an industrial dispute exists between the employers in relation to the management of Kharkharee Colliery of M/s. Bharat Mning Corporation Ltd.. P.O. Kharkharee, Disf. Dhanbad and their workmen in reaped of Ihe mulleis specified in the schedule of reference, by Ilieir Oidur No 2/54/69-1 RI1 daled 26-5-69 referred the s:iid dispulc under Section 10(1 )(d) of the Industrial Disputes Act, 1947 to this Tribunal for adjudication. The schedule of ieference is extracted below:

SCHEDULE

"Whether the action of the management of Kharkharee Colliery of M/s. Bharat Mining Corporation Limited P.O. Kliarkharee, Dlst. Dhanbad terminating the services of Shr/i Rabi Lochan Ghosh, Electrician, with effect from 1st October, 1968 was justified? If not, to what relief is the workman concerned entitled ?"

2. The reference was received in this Tribunal on 6-6-69 when it was registered as reference No. 38 of 1969. The industrial dispute in question was sponsored by the Bihar Koyala Mazdoor Sabha before the Conciliation Ofhccr and the same union represented the concerned workmen in the present proceeding. The written statement of M/s Bharat Mining Corporation Limited was received in this Tribunal on 17-6-69 and that filed on bchall of the workmen was received here on 21-6-69. During the pendency of the present pro- ceeding the management of the colliery in question vested in the Central Government and then in Bharat Coking Coal Limited as per Law passed by the Parliament. Thereafter on the petition filed by the workmen and after hearing the parties concerned, including Bharat Coking Coal Limited the Bbarat Coking Coal Limited were added as a party in the present proceeding as per Order No. 23 dated 23-3-72. 1 may mention here that subsequently by an Act of the Parliament the colliery in question was nationalised and it vested in the Central Government and thereafter it vested in Bharat Coking Coal Limited under the provisions of the said Act. The Bharat Coking Coal Limited filed thcif written • statement on 24-4-72.

3. The case made out in the written statement of the outgoing employer, namely M/s. Bharat Mining Corporation Limited, is that the concerned workman Shri Rabi Lochan Ghosh was working as an Electrician in the colliery in question at the relevant time. There was theft of electric cable from the colliery and in that connection Shri Rabi Lochan Ghosh was arrested by the Police. In view of this the management lost all confidence in him and his services were terminated by management's letter dated 28-y-68 with effect from 1-10-68 and he was offered one month's wages in lieu ot notice. The action of the management in terminating the services of Shri Rabi Lochan Ghosh is alleged to be bona tide and it is submitted that the workman is not entitled to any relief. The management has also taken a formal plea to the effect that the present reference having arisen out of an individual dispute and the same not being taken up by substantial number of workmen or their union, it is outside the scope of the Industrial Disputes Act and the reference is liable to be sum- marily dismissed. The management states further that they are not aware if Shri Rabi Lochan Ghosh was a member of Bihar Koyla Mazdoor Sabha or of any union at all before the date of termination of bis services.

4. According to the written statement filed by the workmen, Shri Rabi Lochan Ghosh had been working in Kharkharee Colliery of M/s. Bharat Mining Corporation Limited as an Electrician from July, 1964. Prior to the present action of the management terminating his services, the management had stopped Shri Ghosh from work with effect from 19-4-67 illegally which was followed by reference No. 52 ot 1967 of the Central Government Industrial Tribunal, Dhanbad. The Tribunal in that reference by its award dated 10-2-68 directed the management to reinstate Shri Rabi Ixichan Ghosh with continuity of service and pay full back wages for the period of his idleness from 19-4-67 onwards. The manage- ment reinstated Shii Rabi Lochan Ghosh in the later part of March, 1968 but did not pay him the back wages as directed by the Tribunal in its award. The management did not also make payment of monthly salary to Shri Rabi Lochan Ghosh since after reinstatement nor the management revised the scale of pay and salary of Shri Ghosh in accoi dance with the recommendations of Coal Wage Board as accepted by the Central Government. Sri Ghosh thereafter made complaint to the Central Government authority about the non-payment of the back wages, non-payment of the current wages and f')T the revision of his pay scale according to the recommenda- tions of the Coal Wage Board. On account of all these demands the management began to threaten Shri Ghosh with dire consequences. The management in the meantime tried to entangle the workman in an alleged theft of electric cable from the colliery on 22-9-68 but was unsuccessful in getting him implicated in any such theft case or in getting him arrested by the Police. The allegation of the mauagement that the workman wan arrested by the Police and wus then released on bail is totally baseless, false and malaflde. The workman was never involved in any such case. It is submitted that the action of the management in terminating the servicese of the workman by their letter dated 28-9-68 alleging loss of confidence for the baseless and unfounded reason is totally unjustified. It is said that the action of the management in terminating the services of the workman under tnc cir- cumstances stated above amounts to victimization. I he sub- mission is that the present reference should accordingly be answered in favour of the workmen and the Tribunal will order for reinstatement of the workman with back wages.

5. The Bharat Coking Coal Limited adopted the written statement filed by the outgoing employers and alleged further that they are in no way liable or responsible for any act of the past management of the colliery prior to the taken over of the coal by the Central Government.

6. On behalf of the workmen 3 documents, Exts. W-l to W-3, have been exhibited on the admission of >he employers. On behalf of the employers 6 documents, name,ly, M-l to M-6 have been exhibited or. admission of the workmen. The workmen examined Shri Rabi Lochan Ghosn (WVV-1) on their behalf and he is the only witness on behali of the workmen, The employers have not examined iny witness on their behalf. I shall discuss the oral and documentary evi- dence adduced by the parties in course of the award, if and when the necessity for the same will arise.

7. On behalf of the employers it is submitted that it is a case of termination of service simplicitor, which power the management exercised under Clause I4(a) of the Standing Orders of the Company. Ext. M-5 is the copy of the Stand- ing Order in question. Clause 14(a) runs as follows :—

"For terminating the services of a permanent workman having loss than one year of continuous service as defined in Section 2(eee) of the Industrial Disputes Act, J947, a notice in writing or wages in lieu there- of at tho scale indicated below shall be given by the employer :

(i) For monthly paid workmen-—One month

(ii) For weekly paid workmen—One week

Provided that no such notice shall be required to be given when the services of a workman are terminated on account of misconduct."

Relying upon the said provisions of the Standing Order the submission is that the management has terminated the service of Shri Rabi Lochan Ghosh as the management lost confidence on him and in that case the nction of the management must be held to be quite justified. The Learned Advocate of the employers relied upon the decision of their Lordships Ot the Supreme Court in the case of Tata Oil Mills Company Limited and their workmen, reported in 1966(13) F, L. R. 65, in support of the above contention, especially when the Mantling Order authorises the management to terminate the services of a permanent workman after giving notice or notice pay.

8. There is no dispute between the parties that the con- cerned workman was a permanent employee in the colliery at the time when his services were terminated. The seivlces of the concerned woikman was terminated by the letter of the Manager of the Colliery to the workman dated 28-9-t>8 (vide letter Ext. W-3). By this letter his services were teirninated with effect from 1-10-68. The evidence of the concerned work- man (WW-1) is that he worked in tho concerned colliery i.e. Kharkharee Colliery, from July, 1964 as Electrician till his services were terminated, He states further that prior to the present action, his services were previously terminated on 19-4-67 lesulting in an industiial dispute which was leferred by tho Central Government to the Central Government Indus- trial Tribunal No. 1, Dhanbad for adjudication, who by his uward in reference No. 52 cf 1967 directed reinstatement of the workman with full back wages. The workman further states that the management reinstated him on 27-3- 68 in persuanee of the award. He then continued to work as Electrician as before till his services were teiminated with effect from 1-10-68 by the letter of the management already said above. These facts were not challenged by the manage- ment in cross-examination and at the time of argument the Learned Advocate of the employers Sri P. K. Bose accepted these facts as deposed by the workman to bo correct. It is thus clear that Shri Rabi Lochan Ghosh worked as Etectrician in Kharkharee Colliery from July, 1964 till 30-9-68.

form of the order, the Industrial adjudication will examine the substance and would direct reinstate- ment in a fit case."

11, In view of the above decision of the Supreme Court it comes to this that even if the employers have got their right to terminate the services of the employee under the terms of contract or under the provisions o£ the Standing Order, which is absent in (he present case, the Industrial Court will examine whether the alleged termination of service simpli- citor was simply a cloak of termination of service simplicitor or it amounts to victimization or unfair labour practice. The letter by which the services of the concerned workman was terminated reads as follows : —

Kharkharee Colliery,

P. O. JCharkharee, S. E. R.

(Dhanbad) Dated 28-9-1968.

Ref, No.

To

9. The Standing Order quoted above confens power to the management to terminate the services of a permanent work- man having less than one year of continuous service. But the present case is one relating to • a permanent workman who was in continuous service for about four years. In my opinion, therefore, Clause 14(a) of the Standing Order relied upon by the management has no application to the present case. The Learned Advocate of the employers ;oulcl not point out any other clause in the Standing Order or any sepa- rate contract of seivice authorising the management in such a case to terminate Ihc services of the workmen. ID the ease relied upon by the employers, already said above, the concerned workman was discharged from service under the terms of contract between the company and the workman specifically embodied in Rule 40(1) of the Service Rules of the Company. As pointed out above, in the present case there is no specific rule or Standing Order or any separate contract between the workman and the employers to leiininate the services of a permanent workman who is in continuous ser- vice for more than one year. The management, theiefore, cannot have unrestricted powei to terminate tnc services of such a workman.

Sri Rabi Lochan Ghosh, Electrician, Kharkharoe Colliery.

Dear Sir,

You have boen entangled in the theft of an electric cable stolen from the colliery for which you were arrested by the Police and has since been released on bail.

10. Assuming for the sake of argument that the manage- ment has the power to terminate the services of the workmen in a case of the present nature, the power cannot be unres- tricted. In this connection reference may be mado to the observation of their Lordships of the Supreme Court in the ruling relied upon by (he employers, already utated above which is as follows :—

In view of the above, the management has lost all

confidence in you.

The management, therefore, regrets to terminate your service with effect from 1-10-68. You will be paid one month wages in lieu of notice, which you are asked to collect together with other legal dues if any from the office on any working day and vacate the Company's quarter occupied by you.

Yours faithfully, Sd/- Manager.

By this letter the management informs the workman that it lost all confidence hi him inasmuch as he had been en- tangled in the theft of an electric cable stolen from the colliery for which he was arrested by the Police and was released on bail. In this connection reference may be made to the case of the workmen that there was no such theft case nor the concerned workman was entangled in any such case, nor he was arrested by the police in any such case nor he had any occasion to apply for laid in any such case nor was he released on bail. This is the evidence of the concerned workman WW-1 before this Tribunal. No witness on behalf of the employers has been examined to say that the concerned workman Shri Rabi Lochan Ghosh was en- tangled in any such theft case or he was arrested by the Police and subsequently was released on bail in any such case. No documentary evidence has also been filed by the management in proof of the same. It must accordingly be held that Shri Rabi Lochan Ghosh was not entangled in any such case of theft of electric cable from the colliery and ho was not arrested by the Police nor was he released on bail in any such case. Therefore, the very basis of the loss of con- fidence of thy management upon Sri Rabi Lochan Ghosh, as stated by the management in their letter Ext. W-3, falls through. Thus the alleged loss of confidence on the work- man was baseless and without any reason. At the time of argument the Learned Advocate of the employers has pointed out to me the statement of the workman (WW-1) in cross- examination that while he was working in Kharkharee colliery "The true legal position about the Industrial Court's jurisdiction and authority in dealing with cases of this kind is no longci in doubt. It is true in scvoral cases, contracts of employment or provisions in Stand- ing Order authorise an industrial employer to ter- minate the services of his employee after giviug notice of one month or paying salary for one month in lieu of notice, and normally, an employer may, in a proper case, be entitled to exercise the same power. But, where an order of discharge passed by tn emp- loyer gives riso to an industrial dispute, the form of the order by which the employee's services are terminated, could not be decisive; industrial adju- dication would be entitled to examine the siiostance of the matter and decide whether the termination is in fact discharge simplicitor or it amounts to dismissal which has put on the cloak of a discharge simplicitor. If the Industrial Court is satisfied that the order of discharge is punitive, that it is malafide, or that it amounts to victimization or unfair labour practice, it is competent to the Industrial Couit to set aside the order and, in a proper case dhect reinstatement of the employee. In some c.i(>es, the termination of the employee's service may appear to the Industrial Court capricious and so unieason- ably severe that an inference may legitimately and reasonably be drawn that in terminating the services, the employer was not acting bonafide. The test has always to be whether the act is malafide, or appears to be a colourable exercise of the power conferred on the employer either by the terms of .contract or by the. Standing Oiders, th"n notwithstanding the

he used to attend to private work and this is the ground for loss of confidence of the management on the workman. No such case has been made out by the management in their written statement. Apart from it, the specific statement of the workman in his evidence in cross-examination is that he used to do the private work during off hours on contract basis under one Mr. Senapati, the Consulting Engineer of Kharkharec colliery, with the permission of the Manager of the colliery. There is no denial to this statement of the workman. In that view of the matter the question of loss of confidence of the management on the workman on the ground urged by the Learned Advocate of the employers does not arise at all, specially when he was doing the work with the permission of the Manager of the colliery.

12. I like to discuss at this place the case of victimization made out by the workmen. I have already referred to above the evidence of the workman that his services were previous- ly terminated by the management on 19-4-67 in consequence of which an industrial dispute was raised and a reference was made to the Central Oovt. Industrial Tribunal No. 1, Dhanbad who as per award in reference No. 52 of 1967 found the action of the management in terminating the services of the workman unjustified and ordered for his reinstatement with full back wages. The management there- after reinstated the workman in service on 27-3-68. These facts were not disputed on behalf of the employers at the time of hearing, rather the facts were accepted by the Learned Advocate of the employers at the time of argument. The evidence of the workman is that he was not paid the back wages as per award of the Tribunal nor the manage- ment paid to him the current wages from March to July, 1968 after he was reinstated as per Tribunal's award. There- after, it appears, the concerned workman wrote to the Director of Bharat Mining Corporation limited, Kharkharee Colliery, as per his letter dated 27-8-68 (Ext. W-l) making a grievance to him that he was not paid back wages and his monthly salaries for the months of March, April, May, June & July, 1968 besides bonus etc., and requesting to arrange to make payment of the same at an early date. The management did not comply with the said prayer of the workman. The evidence of the workman is that on 25-9-68 he was stopped from work and the documentary evidence on record shows that he was stopped from work by Electri- cal Supervisor and against that order the workman made a grievance before the Director of the Company (vide letter Ext. W-2). Thereafter the workman received the letter Ext. W-3 from the management saying that his services were terminated with effect from 1-10-68. The fact that the back wages and the current wages of the workman from the date of his reinstatement on the basis of the award of the Central Govt. Industrial Tribunal No. 1, Dhanbad in reference No. 52 of 1967, referred to above, were due to the workman before his services were terminated is not denied. There Is no reason whatsoever as to why the back wages as per award were not paid so long and why the workman was not paid his salary for the period after his reinstatement. The management relics upon their letters Exls. M-2, M-3 & M-4 in support of their contention that they were all along ready to pay the dues but it was the workman who was not taking the amount. The above letters are dated 18-24-10-68, 27-10-68 & 1-11-68 respectively and were issued long after the services of the workman were terminated and also long after the demand of the same was made by the workman by his letter dated 27-8-68 said above. There is nothing to show what was the reason of the management for not making the payment of back wages and current wages prior'to the termination of the services of the work- man. On behalf of the workmen it is submitted that since the concerned workman made a demand of the back wages as per order of the Tribunal, said above, and also current wages besides bonus etc, the management terminated the services of the concerned workman and it is clearly an act of unfair labour practice and victimization of Shri Rabi Lochan Ghosh by the management. The basis of the management for termination of the services of the concerned workman as per letter W-3 being incorrect and there being no other basis for termination of his services, J accept, in view of the aforesaid facts and circumstances, the reason given by the workman for terminating his services and I hold that the action of the management in terminating the services of the workman was malafide and amounts to un- fair labour piaelice ;md the services were terminated to vic- timize the workman. The order of the management termi- nating the services of Shii Rabi Lochan Ghosh, Electrician must, therefore, be set aside.

13. On behalf of the management a formal plea has been taken to the effect that the reference made is not an indus- trial dispute in as much as the cause of the concerned work- man was not taken up by any union of which Shri Rabi Lochan Ghosh was a member and as such the reference must be dismissed. It appears that the dispute in question was sponsored by Bihar Koyla Mazdoor Sabha in the conciliation proceeding before Asst. Labour Commissioner (Central) and the said union represented the workman in the present pro- ceeding. During the conciliation proceeding before Asstt. Labour Commissioner it was not challenged by the manage- ment that the concerned workman was not a member of Bihar Koyla Mazdoor Sabha. No evidence also has been adduced before the Tribunal by the management that the workman Shri Rabi Lochan Ghosh was not a member of the said union. On the other hand, the evidence of the workmen before this Tribunal is to the effect that he was a member of the said union. The management has not adduced any evidence to the effect that the workmen of Kharkharee colliery are not the members of Bihar Koyla Mazdoor Sabha. In view of the facts and circumstances on record, I overrule the objection of the management that the present dispute is not^an industrial dispute.

14. In view of the findings recorded above my answer to the reference is that the action of the management of Kharkharee colliery of M/s. Bharat Mining Corporation Ltd., P. O. Kharkharee, Dist. Dhanbad terminating the services of Shri Rabi Lochan Ghosh Electrician with effect from 1st October, 1968 was not justified. The order of the manage- ment in this regard is accordingly set aside. The question that now arises for consideration is what relief the concerned workman is entitled to as a result of the setting aside of the said order of the management. 1 find that the concerned workman is entitled to be reinstated in the same post which he was holding at the tune his services were terminated and he will get his back wages from 1-10-68 till the date of his reinstatement with continuity of service and other benefits that will accrue to him during the said period. The concerned workman will report for duty within a month from the date the award becomes enforceable, failing which the management will not be bound to reinstate him but the management's liability to pay back wages till the expiry of one month from the date when this award will become enforceable will remain. I like to mention here that from the evidence of the workman (WW-1) it appears that he had filed an application under Section 33(c) (2) of the Industrial Disputes Act before the Labour Court, Dhanbad for realisation of the back wages as per award in reference No. 52 of 1967, already stated above, and also current wages and the matter was settled by compromise.

15. The colliery in question belonged to M/s. Bharat Mining Corporation Limited and during the pendency of the present proceeding the management of the colliery vested in the Central Government and then in Bharat Coking Coal Limited under the provisions of Coking Coal Mines (Emer- gency Provisions) Act, 1971 which came into force on 16-10-71. By the provisions of this Act the Bharat Coking Coal Limited became the Custodian of the colliery on behalf of M/s. Bharat Mining Corporation Limited who continued to be the owner of the colliery. Subsequently by Central Act No. 36 of 1972, Coking Coal Mines Nationalisation Act, 1972, the colliery vested absolutely in the Central Govern- ment free from all incum-brances with effect from 1-5-72 and by the provisions of the said ct it vested absolutely in Bharat Coking Coal Limited since that day subject to the control by the Central Government. Thus M/s, Bharat Min- ing Corporation Limited ceased to have any right what- soever in the colliery with effect from 1-5-72 and as such the said company is no longer in a position to reinstate the concerned workman in the colliery in question. The rein- statement, if any, has to be made by Bharat Coking Coal Limited which is now Inchfirge of the colliery in question. On behalf of Bharat Coking Coal Limited it is submitted that according to the provisions of Section 9(1) of the said Nationalisation Act the Bharat Coking Coal Limited shall not be made liable for the acts and ommissions of the pre- vious management i.e. M/s. Bharat Mining Corporation Limited. In my opinion the said provisions in the Act has refeience to pecuniary liability prior to the appointed date i.e. 1-5-72 tind it has nothing to do with the question of reinstatement of a workman whose services have been wrong- fully terminated. This queition, in my opinion, is covered

by the provisions of Section 17(1) of Act No. 36 of 1972 which luns as follows :—

"17. (1) Every person who is a workman within the meaning of the Industrial Disputes Act, 1947, and has been, immediately before the appointed day, in the employment of a coking coal mine or coke oven plant shall become on and from the appointed day, an employee of the Central Government, or, as the case may be, of the Government company in which the right, title and interest of such mine or plant have vested under this Act, and shall hold office or service in the coking coal mine or coke oven plant, as the case may be, ort the same terms and conditions and with the same rights to pension, gratuity and other matters as would have been admissible to him if the rights in relation to such coking coal mine or coke oven plant had not been transferred to, and vested in, the Central Govern- ment or Government Company, as the case may be, and continue to do so unless and until his employ- ment in such coking coal mine or coke oven plant is duly terminated or until his remuneration, terms and conditions of employment are duly altered, by the Central Government or the Government Com- pany."

16. In view of my finding that the order of termination of the services of Shri Rabi Lochan Ghosh was illegal and unjustified, he continued to be the workman in the employ- ment of the colliery in question and he was in the employ- ment in that colliery on and from the appointed date i.e. 1-5-72 as a workman of Bharat Coking Coal Limited. In that view of the matter it is Bharat Coking Coal Limited Who must comply with the direction of this Tribunal regard- ing reinstatement of the said workman in the colliery, as stated above. So far as the pecuniary liability under the present award is concerned, M/s. Bharat Mining Corporation Limited will be liable till 30-4-72 anil thereafter from 1-5-72 it will be (he liability of Bharat Coking Coal limited.

17. This is my award. Let the award be submitted to the Central Government under Section 15 of the Industrial Disputes Act, 1947.

[No. 2/54/69-T.R II]

B. S. TRIPATHI, Presiding Officer.

S.O. 1284.—In pursuance of section 17 of the Indust- rial Disputes Act, 1947 (14 of 1947), the Central Govern- ment hereby publishes the following award of (he Central Government Industrial Tribunal, Jaoalpur in the industrial dispute between the employers in relation to the Bank of Rajasthnn Limited and (heir workmen, which was received by the Central Government on the 17th April, 1973.

CENTRAL GOVFRNMENT INDUSTRIAL TRTBUNAL-

CUM-J.ABOUR COURT, JABALPUR

Jabalpur, the 30th March. 1973

AWARD

This is a reference under Sec. 10(1) (d) of the Industrial

Disputes Act (hereinafter culled the Act).

The question refened lo (he Tribunal for its consideration

is:—

"Whether the action of the management of the Bank of Rajaslhan Limited, Tndore, in terminating the ser- vices of Shri Narcsh Kumar Shukla, Peon, with effect from the 19th August, 1971, was justified? If not, to what relief is he entitled?'

The competency of the reference was challenged by the Bank and the following issue in addition to the issue as set out in the schedule to the reference was framed by me:—

"Whether the reference is proper and valid in law and

is maintainable?"

It is alleged on behalf of the workman, Naresh Kumar Shukla thai he was working in the Bank of Rajasthan Limi- ted, Indore (hereinafter called the Bank) from the year 1968 in the permanent vacancy of one Sri Ramakant whose ser- vices had been terminated earlier by the Bank. It was stated that on account of Naresh Kumar Shukla's satis- factory temporary services and in view of para 20—12 of ths lirst Bipartite Settlement dated 19th October, 1966, he being the senior most Peon was appointed as a Probationer Peon- cHHi-l'urraish on 11-6-1971 in the above mentioned vacancy but on 19-8-1971 his services were illegally terminated by the management to accommodate another person. The workman made representations to the Bank for the redress of his grievance tor wrongful termination of his services. Thereafter he referred the dispute to the Assistant Labour Commissioner (Central) Bhopai. The Bank in defending its position contended, inter alia, that Narcsh Kumar Shukhl had worked from time to time in temporary leave vacancies only and that had not been taken as a probationer with effect from 11-6-1971 as was alleged by him. It was further stated that since that he was given the post of temporary peon with effect from 11-6-1971 for 69 days his temporary appointment came to an end by efflux of time. The Bank denied that Shukla "on account of satisfactory work or seniority" had been taken in the employment of the Bank as a probationer peon on 11-6-1971. It was urged on behalf of the Bank that Shukla had been given only a temporary appointment for 69 days which, at least, may be taken as a Lempoiary appointment against a permanent vacancy for a period less than three months vide para 20.8 of the First Bi-partite Settlement". The Bank further denied that Shukla's termination "took place in order to accommodatte another person" by the Bank. The Assistant Labour Commissioner (Central) took up the dispute in con- ciliation proceedings which ended in failure. The dispute was thereafter referred to this Tribunal for adjudication.

Present:

Mr. Justice S. N. Katju—Presiding Officer.

Case No. CGIT/LC(R) (I9)/72

Notification No. L-12012/4/72-LR. Ill dated 28-2-1972 The dispute raised the question whether the Bank was justified in terminating the services of the workman. Under these circumstances it gave raise to a above dispute which was rightly referred to this Tribunal by the Central Gov- ernment. The reference, therefore to this Tribunal is main- tainable.

Parties:

Employers in relation to the Bank of Rajasthan Limited,

Indore, and their workmen, represented through the

General Secretary, M. P. Bank Karmchari Sangh, 30,

Bakshi Gali Tndore, (M.P.).

Appearances:

For employers—Shri I\ S. Nair, Advocate labalpur.

For workmen—Shii C. L. Bharadwaj.

Industry: Bank District: Tndore (M.P.) It is not necessary for me to go further into the matter because the parties have resolved the dispute between them and have arrived at a settlement which is properly signed by the workman and his representative as also by the representa- tive of the management.

Under the terms of the settlement it has been conceded that although the termination of the services of the work- man by 1he Bank was justified but the Bank has agreed to take Ihc workman in its employment on the first available vacancy in the Bank in any of its branch office in Madhya Pradesh except at Indorc on six montht's probation. The terms of the settlement are fair and reasonable and I make my award accordingly. The aforesaid deed of settlement between the parties shall form part of this award. 1 make no order as lo costs.

S. N. KATIU, Presiding Officer.

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-Ct/M-LABOUR COURT, JABALPUR CAMP AT JAIPUR Case No. CGIT/LC(R)(19) of 1972

Employers in relation to the management of Bank of

Rajasthan, Indore (M. P.)

VERSUS

Its workman, Narcsh Kumar Shukla.

Without prejudice to the stand of the management that its action in terminating the services of Naresh Kumar Shukla the parties have agreed to settle the dispute mutually on the following terms:—

1. The action of the management was justified in ter-

minating the services of N. K. Shukla.

2. Taking the sympathetic view of the whole matter the management has agreed to appoint Sri Naresh Kumar Shukla on the first available vacancy on probation for six months in Madhya Pradesh except at Tndore.

3. The Union and the workman assures the management that Sri Naresh Kumar Shukla will work honestly, sincerely and loyaly.

4. The parties shall bear their own costs.

5. The parties request the Hon'ble Tribunal to make

an award in terms of the aforesaid settlement.

C. L. BHARDWAJ,

NARESH KUMAR SHUKLA, Workmen's representatives.

P. S. NAIR,

Management's representative. [No. L. 12012/4/72-LR III]

New Delhi, the 25th April, 1973

S.O. 1285.-—In pursuance of Section J7 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the following award of the Central Gov- ernment Industrial Tribunal, Jabalpur, hi the industrial dis- pute between shri Chhotelal Contractor, Chandametta Col- liery of Messrs Pench Valley Coal Company Limited, Post Office Parasia, District Chhindwara (Madhya Pradesh) and their workmen, which was received by the Central Gov- ernment on the 18th April, 1973.

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM-LABOUR COURT, JABALPUR

Jabalpur, the 6th April, 1973 Case Ref. No. CGIT/LC(R) (44) of 1972

Present;

Mr. Justice S. N. Katju—Presiding Officer.

(Notification No. L/22012/33/3372-LRH dated 24-10-1972)

Parties

Employers in relation to Shri Chhotelal Contractor, Chandametta Colliery of Messrs Pench Valley Coal Company Limited, Post Office Parasia, District Chhindwara (M,P.) and Shri Ramdayal, Super- visor, represented through the Satpura Koyala Khacian Mazdoor Congress, P.O. Parasia, District Chhindrara (M.P.)

Appearances:

For employers—Shri P. S. Nair, Advocate.

For workman—Shri Ram Narain Singh, General Sec- retary, Satpura Koyala Khadan Mazdoor Congress.

Industry : Coal Company District: Chhindwara (M.P.)

AWARD

This is a reference under Section 10(l)(d) of the In-

dustrial Disputes Act.

The question referred to this Tribunal is:—

"Whether the action of Shri Chhotelal, Contractor, Chandametta Colliery of Messrs Pench Valley Coal Company Limited, Post Office, Parasia, District Chhindwara (Madhya Pradesh). In stopping from work Shri Ramdayal, Supervisor, with effect from the 7th February, 1972 Is justified? If not, to what relief is the workman entitled?"

It was alleged on behalf of the workman, Ramdayal Supervisor, that he was working as a Supervisor and he was supervising all the work of the Contractor, Chhotelal, since the last 10 years. He had been enjoying all the facilities which are given to the employees of the Chandametta Col- liery and he was a permanent employee of the said Chhote- lal, Contractor. It was further stated on behalf of the work- man that Chottelal, Contractor, stopped him Illegally and without any notice from working for the aforesaid contrac- tor. AH his representations to the management that ho should be taken back on his duties did not produce any result. Thereafter the Union on behalf of the workman asked the Contractor several times to take back on his duties but the Contractor refused to do so. The question was raised before the Assistant Labour Commissioner (Central) Chhindwara but the conciliation proceedings ended in failure. Thereafter the present reference was made to fhla Tribunal.

The representative of the workman objected against the appearance of Shri P, S. Nalr, Advocate, on behalf of the Colliery. Shri P. S. Nair In his reply has stated that he was not appearing on behalf of the Colliery but in his capacity as the Industrial Relations Secretary, Central India Coal Fields Mining Association and as an officer of the Associa- tion of employers connected with the industry in question he was entitled to appear in the present proceeding on behalf of the Colliery. No one appeared on behalf of the work- man on 20-2-1973 and 21-2-1973 when the case came up before this Tribunal. Shri Nair is present in Court today but neither the workman nor his representative is present be- fore the Tribunal today. I need not go into the question whether Shri P. S. Nair is competent to appear on behalf of the Colliery. There is nothing on the record to substan- tiate the allegations made on behalf of the workman and it is not possible for me to hold that the action of Chhote- lal, Contractor, In stopping Ramdayal, Supervisor, from his work with effect from 7-2-1972 was not justified. My award, therefore, Is that Chhotelal Contractor of the Colliery of M/s. Penrh Valley Coal Company Limited, P.O. Parasia, District Chhindwara, was justified in stopping from work Ramdayal with effect from 7-2-1972 and I make my award accordingly. I make no order for costs.

S, N. KATJU, Presiding Officer [No. L. 22012/33/72-LRII]

CORRIGENDUM

New Delhi, the 26th April, 1973

S.O. 1286.—In the notification of the Government of India, in the Ministry of Labour and Rehabilitation (Depart- ment of Lab. and Employment) No. S.O. 174, dt. the 6th Jan. 1973, published at pages 247 and 248 of the Gazette of India, Part-TT, Section 3, Sub-Section (ii), dated the 20th January, 1973, on page 247 in lines 6 and 7 for "the agent, South Bulliari Kendwadih Group of Collieries of Messrs. East Indian Coal Company Limited, Post Office Mohuda, District Dhanbad", read "The Bhatdee Colliery of Messrs. Bengal Bhatdce Coal Company Limited, Post Office Mohuda, District Dhanbad "

[No. L/2012/101/71-LRITj

New Delhi, the 27th April, 1973

S.O. 1287.—In pursuance of section 17 of the Industrial Dis- putes Act, 1947 (14 of 1947), the Central Government hereby publishes the following award of the Central Government

Industrial Tiibunal No. 2, Bombay in the industrial dispute Lttween the employers in relation to the Central Bank of India and their woikmen. which was received by (he Ccn- titil Government on the 23rd April, 1973,

HEFORE THK CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL NO. 2, BOMBAY

Reference No. COIT-2/4 of 1972

Employe)s in relation to the Central Bank of India.

AND

Their workmen

Present:

Shii N. K. Vani—Presiding Officer.

Appearances ;

For the Employers—Shri G. R. Sheikh, Asstt. Law Officer.

For the Workmen—(i) Shri A. M. Puranik, Vice President.

(ii) Shri S. P. Chaudhari, President.

Industry : Banking. State : Maharashtra.

Bombay, the 22nd March, 1973

AWARD

By order No. L. 12012/48/71-LR. Ill, dated 4-3-1972, the Central Government in the Ministry of Labour and Rehabilitation (Depaitment of Labour and Employment) in exercise of the powers conferred by clause (d) of sub-clause (I) of Section 10 of the I.D. Act, 1947 (14 of 19471 re- ferred to this Tribunal for adjudication nn industrial dispute existing between tho employers in relation to the Central Bank of Tndia and their workmen in respect of the matter specified in the Schedule ns mentioned below:—

SCHEDULE

Whether the action of the management of the Central Bank of India in terminating the services of Shri B, K. Shrimali, Peon-cum-Watchman at Dhulia Branch of the Bank was justified? Tf not, to what relief is he entitled?"

2. The facts giving rise to this reference are as follows:—

(i) Shri B. K. Shrimali was working as Peon-cum- Watchman in Dhulia Branch of the Central Bank of India from 29-4-1969. On 20-9-1969 the Sub- Agent gave him notice, annexure 6 to the written statement Ex. 1/W informing him that under ins- tructions from the main office, his services would not be required from 29-9-1969. On account of this, the President of the Central Bank of India Staff Union raised industrial dispute with the Asstt. Labour Commissioner (C) Nagpur by his letter dated 10-3-1971 annexure B to the written statement Ex. 1/W. The Asstt. Labour Commis- sioner (C), Nugpur tiietl to bring nho\it co icilki- tion but in \ain. He therefore submitted his failure of conciliation report to the Government, on 31-5-1971, tinnexure 10 to written statement Ex. 1/W. After the receipt of this report the Government of India refeircd this dispute to this Tribunal for adjudication.

3. Jn pursuance of the notice issued to the parties for filing their written statements, both the parties appeared before me and filed their written statement.

4. Shri S. P. Chaudhuri, President, Central Bank of India Staft Union Nagpur has filed written statement Ex. 1/W on behalf of the workmen.

11 G of 1/73—7.

5. According to him:—

(i) Shri B. K- Shrimali had applied for a post of a peon/Watchman in the Bank. He was called for interview and test. He was then given an appoint- ment order under order dated 29-4-1969, annexure 1 to the written statement Ex. 1/W, as peon-cum- watchman at Dhulia Branch. In order to circum- vent the provisions of Sastry and Desai Award the Bank issued appointment orders month by month and treated the permanent appointment as tem- porary to deprive all benefits applicable to con- firmed employees of the Bank. The appointments made by the Bank arc as Under--

Order dated Period

29-4-1969 29-4-1969 to 28-5-1969—1 month. 29-5-1969 29-5-1969 to 28-6-1969—1 month. 28-6-1969 29-6-1969 to 28-7-1969—1 month. 29-7-1969 29-7-1969 to 28-8-1969—1 month. 28-8-1969 29-8-1969 to 29-9-1969—1 month.

After five months continuous service in permanent vacancy the Sub-Agent served a termination order dated 20-9-1969 intormina him that under instruc- tions from the main office, his services would not be required from 29-9-1969.

(ii) The Bank did not give required notice or notice pay as per provisions of Sastry and Desai Award while terminating the confirmed services of Shri Srimaii. The termination order was malafied and in contiavention of the provisions of the Awards and Bipertito Settlement. The same was invalid and illegal.

(iii) As per the cartificate issued by the Sub-Agent, Dhulia Branch on 29-9-1969, annexure 7 to the written statement Ex. 1/W, the work, conduct and attendance were found good and satisfactory.

(iv) As per the Bank's recruitment Policy, Shri Shrimali was appointed after completion of all formalities i.e. test and interview nnd was selected for a permanent post in a permanent post in a per- manent vacancy. The order of temporary appoint- ment dated 29-4-1969 was in contravention of the provisions of the Bank Awards and Bipartite Settle- ment.

(v) After terminating the services of Shri Shrimali the Bank recruited several employees in Nagpur group and also at Dhulia Branch to fill in the vacancy caused due to termination of Shri Shrimali. The Bunk did not reply the representation dated 6-2-1971 mnde b> Shri Shrimali for his appoint- ment in the permanent services of the Bank.

(vi) The Bank advertised the posts of peons, Chowki- dars, armed-guards etc. on 22-1-1970 in 'Nawa- Bharat' daily, Ex. 11/W. The advertisement in this newspaper shows that there were several per- manent vacancies for which posts were adver- tised.

(vii) As the termination of services of Shri Shrimali Is i I legal he be reinstated in Bank's service with effect from 29-9-1969.

(viii) It is prayed that:—

(1) Shri B, K. Shrimali be declared as confirmed em- ployee with effect from 29-4-1969 at Dhulia Branch.

(2) The Bunk of directed to pay and implement all benefits of confirmation to the workman as per provisions of Bank Awards and Bipartite Settle- ment.

(3) He be granted back wages for the period from

29-9-1969 till the date of reinstatement.

(4) The order of termination served by the Bank on 20-9-1969 be declared as illegal and null and void.

(5) The Bank be directed to pay compensation for illegal termination of the services of the work- man.

6. Asstt. Law Officer for the management of Central Bank

of Tndia has filed written statement at Ex. 2/E.

7. According to him:—

(i) Shri Shrimali was not entitled to be appointed in the Bank because he did not comply with the point of requisite educational qualifications laid down by the Bank. Shri Shrimali was very much above the required qualification for the post of Peon-cum-Chowkidar as was asked for vide Bank's advertisement which appeared in Navbharat daily on 22-1-1970. In the said advertisement, it was made clear that for appointments as peons, chow- kidar, armed guards etc. the candidate applying to be appointed as such should have passed mini- made dear that for appointments as peons, chow- had appeared for S.S.C. Examination held by Maharashtra State Board of Secondary Education Nagpur Divisional Board in the month of March, 1968 and had failed in the same. Recruitment Cir- cular of the Bank No. 4 of 1968 under the head- ing 'Mode of Selection' prescribed a set standard or educational qualification for recruitment to sub- Staff cadre, wherein it is said that. The maximum educational qualification for being considered for appointment to sub-staff cadre is uplo Std. VII passed which should be at least 3 years below the qualification for matriculation.' The Bank ob- viously could not infringe the provisions of Re- cruitment Policy framed by it and therefore could not accept candidates possessing higher qualifica- tion than that prescribed.

(ii) The Date of Birth of Shri Shrimali also could not bo ascertained and as such the management could not decide upon the date of birth of Shri Shrimali. As the applicant to sub-staff posts must be between 18 to 25 years of age and as there was no corro- boration to the affidavit regarding the age filed by Shri Shrimali he could not be considered for employment in the Bank.

(iii) The conduct of Shri Shrimali was not proper. He spread all sorts of rumours against the staff At DhulllaOffice saying that he happened to be the then Chief Agent Shri J. J. Pinto's man. He was arrogant in his dealing with the staff and officers. The Bank could not retain such an employee.

(iv) Shri Shrimali worked at Dhulia from 29-4-1969 to 20-9-1969 on month to month extension basis. His appointment was against temporary vacancy ?A ?Sr/ic cs w o rc terminated by order dated 29-9-1969 served on him by the Sub-Agent, Dhulia.

(v) It is not true that the Bank treated the permanent appointment as temporary one to deprive Shri i>nnmali ot all benefits of confirmation and to cir- cumvent the provisions of Sastry and Desai Awards in this regard.

(vi) Tho Bank served the termination notice on Shri Snrimali. The termination notice was not malafide and in contravention of the Bank Awards and Bipartite Settlement. It was not illegal.

(vii) Shri Shrimali was not selected for a permanent post

in a permanent vacancy.

(viii) Appointment in Sub-staff cadre was made at several places in Nagpur Group, including Dhulia, after snn Minmali s services were terminated.

(ix) There was no question of conducting a departmen- tal enquiry against Shri Shrimali before terminating his services because Shri Shrimali was nowhere booked for any misconduct whereby an enquiry

o X r w i s en"y t⁰ i m P°Se S ny P U n i s h m c nt °r

(x) The interpretations of the circulars and provisions of the Awards and Bipartite Settlement made by

e n t i tK S JSLf⁰⁰™* Th° W°r k m cn b not

a l I e s a t f o n⁸ m f l de bv the Bank in its written statement.

9. The Bank has produced documents as mentioned

below :—

(i) Circular No. B.I.D./STAFF/69/6, dated 10-1-1969,

regarding Recruitment of Staff at Ex. 5/E.

(ii) Circular No. PRS/71/C.O. 9, dated 4-2-1971, re-

garding appointment of Staff at Ex. 6/E.

(iii) Circular No. PRS/72/C.O./2, dated 7-1-1972, re-

garding confirmation at Ex. 7/E.

(iv) Details of clerks and sub staff working in Nagpur

Division at Ex, 8/E.

10. The Union has produced documents as mentioned

below;

(i) Memo, dated 20-9-1969, regarding termination of

services of Shri Shrimali, at Ex. 9/W.

(ii) Service Certificate issued by the Sub-Agent to Shri

Shrimali at Ex. 10/W.

(iii) Advertisement in the Navbharat dated 22-1-1970,

at Ex. 11/W.

(iv) Details of temporary/permanent subordinate staff

working at Nagpur Division, at Ex. 12/W.

(v) Details of Temporary/permanent subordinate staff working between January, 1969 to June 1972 nt Nagpur Division, Ex. 13/W.

(vi) Details of Staff members working Bhausahebnagar

between January, 1969 to June 1972, Ex. 14/w.

(vii) Statement of Temporary Permanent subordinate staff working at Ramdaspeth from January. 1969 to June 1972, Ex. 15/W.

(viii) Statement of temporary /permanent subordinate staff members working at Cotton Market Amravatl at Ex. 16/W.

O "

11. It may be noted that neither the Bank nor the workman Shri Shrimali has come in the witness box to give evidence.

12. From the pleadings and documents on record the

following points arise for decision in this reference.

(i) Whether the action of the management of the Central Bank of India in terminating the services of Shri B. K. Shrimali, Peon-cum-Watchman at Dhulia Branch of the Bank was justified?

(ii) To what relief is entitled?

(iii) What order?

13. My findings are as follows:—

(i) No. (ii) Entitled to reinstatement, (iii) As per order.

REASONS

l'olnt No. 1

14. The workman Shri Shrimali was appointed to work as a pcon-cum-Watchman on temporary basis for one month at Dhulia Branch of the Central Bank of India, by the Sub- Agent under Memo, dated 29-4-1969- This Memo, is as follows:—

"Shri Bansilal Kishflnlal Shrimali, Dhulia.

"With reference to his application 17-4-1969 to Nagpur Shri Bansilal Kishanlal Shrimali is hereby inform- ed that he has been taken up to work as peon-cum- Watchman on temporary basis for one month only from to-day on a basic salary of Rs. 86 and dear- ness allowance of Rs. 96.32. The above dearness allowance is subject to revision in accordance with rise and fall in cost of living index.

Notwithstanding anything contained in this letter his services are liable to be terminated at the sole discretion of the Bank without assigning any reason or reasons.

If Shri Bansilal Kishanlal Shrimali is agreeable to accept the appointment on the above terms and condi- tions, he should return the duplicate copy of thin Memo, duly signed by him and report for duties immediately.

Sd/- Sub-Agent.

I accept.

B, K. Shrimali."

15. Shri Shrirrmli accepted the terms of appointment men- tioned in the Memo, lcferred to above and joined the services of the Rank at phulia Branch, as peon-enw-watchman. Thereafter his services were extended from time to time for a period of one month each time as mentioned in the Memos. dated 29-4-1969, 29-6-1969, 29-7-1969 and 28-8-1969, produced on record as annexurc Nos. 2, 3, 4 and 5 res- pectively to the written statement Ex. 1/W.

16. It is clear from the above mentioned facts that Shri Shrimali was in continuous services of the bank as Peon- e"ni-Watchman at Dhulia Branch from 29-4-1969 till 29-9-1969 i.e. for a period of five months.

17. On 20-9-1969 the Sub-Agent issued a Memo, inform- ing Shri Shrimali that under instructions from the main office his services would not be required with effect from 29-9-1969, annexure 6 to the written statement Ex. 1/W. By this memo, the services of Shri Shrimali from Dhulia Branch of the Central Bank were terminated wilh effect from 29-9-1969.

18. Shri Sheikh representative for the Bank contends that the conduct of Shri Shrimali as peon-;/

19. The Bank has taken this contention in the written statement Ex. 2/E, but it hat. not adduced any evidence to show that the conduct of Shri Shrimali was not proper, thai he was spreading remours and that his behaviour was anogant during the tenure of his service at Dhulm Branch. No colleague of Shri Shrimali serving in Dhulia Branch has been examined to speak about his conduct. There is no written warning regarding the conduct of Shri SLuimali on record before me. The burden is on the bank to show that Shri Shrimali's conduct was not proper during the tenuie of his service but it lias clearly fuiled to dischaiged the same,

20. Shri Shiimali has not come in the witness box but there is a certificate dated 29-9-1969 bearing the signature of the Sub-Agent, produced at Ex. 10/W. This certificate is as follows:-—

"This is to certify that Shii Bansilal Kishanial Shrlrnali was working in this office as Peon-cH/jj-Chowkidar from 29-4-1969 to 28-9-1969 (both duy inclusive). During this period his conduct was found to be good and he was found to be regular in attendance and work."

21. It is clear from the above mentionod certificate that during the peiiod of Shri Shrimali's tenure in Dhulia as Peon-cum-ChowkicJar has conduct uas founl to bi good and he was found to be regular in attendance and work.

22. It is not the case of the Bank that the Sub-Agent of the Dhulia Branch has not issued the certificate Ex. 10/W, and that it is aforged document produced by the employee. What the Bank contends that the local agents arc not au- thorised to issue good conduct certificate and that only the Chief Agent can issue such certificates, Apart from the facts whether the Sub-Agent is authoiised to issue good cenduct certificate or not there can be no doubt that this certificate Ex. 10/W speaks about the conduct and regular attendance of Shn Shrimali during his tenure at Dhulia Branch as Peon-c

23. Shri Sheikh contends that Shri Shrimali had appeared for S.S.C. Examination hold by Maharashtra State Board of Secondaiy Education, Nagpur Divisional Board, that he failed in that examination and that inasmuch as he was having more qualification than prescribed for sub-staff, he could not be continued in service. This contention has been raised in the written statement Ex. 2/E.

24. The Bank has produced circular No. 4 of 1968, re- garding Recruitment of staff alongwith Ex. 6/E. Para 7(6)B subordinate Staff relating to mode of selection pres- cribes qualification. It is as follows:—

"(6) Mode of Selection,

(1) Qualifications: Knowledge of the regional lan- guage, both reading and writing except for Armed Guards and Sweepers. Matriculates will not be con- sidered for appointment to Sub-Staff Cadre. The maximum educational qualification for being con- sidered for appointment will be upto 7th Class Pass, which should at least be 3 years below the qualifications for Matriculation and he should have studied English for at least 2 years."

25. It is clear from the above provision that the maxi- mum educational qualification for being considered for appointment to sub-staff will be upto 7th Class pass, which should be at least 3 years below the qualifications for mat- riculation and he should have studied English for at least 2 years. This provision supports the contention of the Bank but in my opinion this contention cannot be given any weight.

26. The Bank admits in its written statement Ex. 2/E Para. 3 that Shri Shimali had applied for the post of Peon- cwm-Watchman in the Bank and that he was called for the test and interview.

27. It is only after the test and interview on account of Shrimali's application, he was appointed as Peon-cwn-watch- man at Dhulia and continued there for a period of five months. It can be inferred from this that the Bank had condoned th" over-qualification of Shri Shrimali while ap- pointing him as Peon-cwM-Watchman. Once it has con- doned this over-qualification it cannot now say that he was not entitled to continue in service because of the over-qualifi- cation.

28. The Union has produced details of temporary/per- manent subordinate staff at Ex. 12/W to 16/W. It appears from these documents that there are certain sub-staff work- ing in the Bank who are also non-matriculates. This fact shows that the Bank condoned the over-qualification.

29. Shri Sheikh contends that Shri Shrimali haa not pro- duced documentary evidence to show that he was bet- ween 18 to 25 years of age and that as there was no con- vincing evidence regarding the age required for appoint- ment, he should not be continued in service. This conten- tion cannot be also accepted.

30. Shri Shrimali had filed affidavit in support of his age before the Bank. The management relied upon the affidavit and appointed him as Peon-cw/n-Chowkidar. Once the Bank has accepted the age, it could not discontinue him frbm service on the ground that Shri Shrimali did not produce documentary evidence to show that he was between 10 to 25 age at the time of his appointment. If there would have been any complaint and any evidence before the Bank that he was overage and that he had deligerately given wrong age for getting appointment, the matter would have been different and the Bank would have insisted for documentary evidence, In view of the fact that the Bank appointed Shri Shrimali and continued him for five months, it could not discontinued his service on the ground that Shri Shrimali had not produced any evidence in support of his affidavit regarding age. The appointment order nowhere mentioned that Shri Shrimali would not be liable to continue in service unless he would produce documentary evidence in support

of his affidavit in respect of age. In the absence of such conditions, the Bank cannot now say that Shn Shrimali can- not continue in service for want of documentaiy evidence regarding his age.

31. Shri Puranik for the Union contends that the notice of termination of service dated 20-9-1969, referred to above is not valid and legal because it was only for 8 days and not for 14 days as required under para. 522 of the Sastry Award. Section IV in the Sastry Award relates to pro- cedure for termination of employment. It is as follows:—

"522. We now proceed to the subject of termination of employment. We give the following directions:—

(1) In cases not involving disciplinary action for mis- conduct and subject to clause (6) below, the em- ployment of a permanent employee may be ter- minated by three months' notice or on payment of three months' pay and allowances in lieu of notice. The services of a probationer may be terminated by one month's notice or on payment of a month's pay and allowances in lieu of notice.

(2) A permanent employee desirous of leaving the ser- vice of the Bant shall give one month's notice in writing to the Manager. A probationer desirous of leaving service shall give 14 days' notice in writing to the manager. A permanent employer or a probationer shall, when he leaves service, be given an order of relief signed by the manager.

(3) If any permanent employee leaves the service of the Bank without giving notice, he shall be liable to pay the Bank one month's pay and allowances. A probationer, 'f he leaves service without giving notice, shal, i>c liable lor 14 days puy and allowances.

(4) The services of any employee other than a per- manent employe? or probationer may be termina- ted, and he may i..

32. Para. 522(4) referred to above lays down that services of any employee other than a permanent employee or proba- tioner may be terminated after serving 14 days notice. There can be therefore no doubt that for terminating the services of temporary employee 14 days notice has to be given as per the piovisions ol Sastry Award. In the present case the Bank has failed to give 14 days notice and con- travened the provisions of para. 522(4) of the Sastry Award. As the Bank has failed to give 14 days notice for termi- nating the services of Shri Shrimali, the termination of ser- vices of Shri Shrimali by notice dated 20-9-1969 is illegal and improper.

33. Shri Sheikh for the Bank contends that Shri Shri- mali's employment was contractual one, that it was a term of contract that his services would be liable for termination at the sole discretion of the Bank without assigning any reasons, and that on account of this there is no question of giving Hny notice to Shri Shrimali. As Shri Shrimali had accepted the terms of contract he cannot claim anything beyond those terms. What Shri Sheikh wants to say is that the termination of services of Shri Shrimali by 8 days notice is quite valid, legal and proper. I am unable to accept this contention

34. In view of the specific provisions in the Sastry Award referred to above, it was incumbent on the Bunk to give 14 days notice to Shri Shrimali before terminating his services. As it failed to do so it cannot be said that ter- mination of services of Shri Shrimali on the basis of notice of termination in question was proper and legal.

35. Shri Puranik for the workman contends that the Bank has followed unfair labour practice in giving temporary appointment to Shri Shrimali in permanent vacancy ut Dhulia branch and in continuing him more than 3 months on temporary basis and in terminating his services at the end of five months., with ;i view lo deprive him of getting the benefits of permanency, In support of this contention he relies on various provisions of the Bi-partite Settlement viz Paras. 20.7 to 20.1] and the settlement dated 23-12-1971, between the Bank and the All India Central Bank Em- ployees Federation.

36. Para. 20.8 of the Bi-partite Settlement is as follows:—

"A temporary woikman may also be appointed to fill a permanent vacancy provided that such temporary appointment shall not exceed a period of three months during which the bank shall make arrange- ments for filling up the vacancy permanently. If such a temporary workman is eventually selected for filling up the vacancy, the period of such temporary employment will be taken into account as part of his probationary period."

37. It is not the case of the Bank that Shri Shrimali was appointed for a limited period for work which was of an essentially temporary nature or he was employed tempo- rarily as an additional workman in connection with a temporary increase in work of a permanent nature or he was appointed in temporary vancancy caused by the absence of a permanent workman. Hence he could not be a temporary employee within the meaning of para. 20.8

38. Shri Shrimali was appointed as temporary peon-c

39. As the post of peon-CM/n-chowkidar is a permanent and as Shri Shrimali was continued in this post on tempo- rary basis for more than three months, it amounts to vio- lation of the piovisions of the Bipartite Settlement para. 20.8.

40. It also appears that the Bank has violated the prin- ciples embodied in the Bipartite Settlement viz. Paras. 20.7 to 20.11.

41. Term 1 of the Settlement dated 23-12-1971, between the Central Bank of India and the All India Central Bank Employees Federation shows that employees who have been appointed in the Bank's service originally on or after 1-7-1966, and were given breaks in the service not exceed- ing three days excluding Sundays and Bank holidays, will be considered as having been confirmed on the permanent staff after six months from the date of their original ap- pointment, and that such members of clerical and subordinate staff will also be entitled to contribute towards Provident Fund from the date of their confirmation as per this agree- ment and the due dates of their graded increments will be adjusted accordingly.

42. It is clear that as per term 1 of the agreement, Shri Shrimali would have been entitled to confirmation after completion of six months service but his services were ter- minated after completion of five months service. At the time of terminating his services by notice dated 20-9-1969, Ex. 9/W, the Bank has not given any reason. It is not the case of the Bank that his services wer terminated because the post in which he was working ceased to continue. If the post in which he was working as pcon-cw?i-chowkidnr at Dhulia continued to exist, there was no reason for the Bank to discontinue Shri Shrimali's services all of a sudden under the instruction from the Main Office. In the absence of those instructions from the Head Office on record, it is not possible to find out as to what those instructions were. Hence the only infeience that can be drawn from the Bank's action in terminating the services of Shri Shrimali after five months service at Dhulia Branch without assigning any specific reason is that it wanted to deprive him of getting the benefits of confirmation.

43. As the various branches of the Bank were taking up temporary hands to fill up the posts which are of per- manent nature and continuing them on temporary basis in- discriminately in violation and continuing them on tempo- rary basis indiscriminately in violation of provisions of Bi- partite Settlement para. 20.8, the head office had issued directed to its branches vide Ex. 7/E. It is as follows:

"We send herewith a copy of the settlement arrived at between the Management and the All India Central Bank Employees' Federation for the information of Branches.

The Management and the A.I.C'.B.E.F. had to. arrive ••it this settlement for reasons mentioned in the short racital of the case in the settlement. Appoint- ments of hands for clerical and subordinate cadre

were being made to fill up permanent vacancies by controlling Branches, indiscriminately and with- out following jny piinciplc 01 bearing i.> wind the provisions of parti. 20.8 of the Bipartiie Settle- ment and then temporary service-, veie bcnji renewed again and again after giving n break ol 2 to 3 days. These temporary hands who were being kept on temporary basis for months t o p- ther in the same vacancy have claimed that they should be treated as taken up on probation from the date of their initial appointment, and the pre- sent settlement has been arrived at to resolve this issue. To avoid such situation arising in future controlling branches are advised that temporary appointments should not normally be made except when the vacancy is of a temporary nature or m every emergent cases for which also prior appro- val of the Personnel Department should be ob- tained. The services of these temporary hands should be terminated on the expiry of the stipula- ted pciiods. Anyway no member should be allowed to continue as temporary hand for more than 3 months. Agents of controlling branches will please bear this in mind for the future.

According to the terms of this agreement, the following two categories of members who were initially taken on temporary basis will be ticatcd as taken up on probation from the original date of their appoint- ment on temporary basis and confirmed effective from the date of expiry of six months from the original date of appointment on temporary basis

1. Employees taken up on temporary basis on and atter 1-7-1966 and their tcmjioraiy services were continued giving breaks not exceeding three days. 2. Employees who were taken up prior to 1-7-1966 but not earlier lhan 1-1-1959 and whose tem- porary services were continued without any break.

It will be observed lrom the settlement that the Ail India Central Bank Fmployees' Federation has agreed not to claim arrears of increment and other benefits in regard to those members who will now be treated as confumed in the Hank's service on the expiry of six months from the date of their initial appointment us temporary hands. The AI India Central Bank Employees' Federation will also not take up supersession of Ihoir cases for pro- motion to higher cadres. However their names will bo included in future seniority List which will be drawn by the Groups as on 1st March and 1st September of every year.

Please let us have a list of the menibeis of the clerical and subordinate staff at offices in your Group who fall under each of the two categories mentioned above giving full particulars of their names, desig- nation, Branches where woiking, details of tem- porary appointment, duration of breaks and the date on which they were taken up on probation. These particulars may be forwaided to Personnel Department to reach us belorc 31st Janu.iiy, 1V71."

44. It will be clear that as the various branches were following unfair labour practice in appointing temporary hands in permanent posts a>.d continuing them beyond three months in violation of the piovisions of the Bipartite Settle- ment and terminating their services, the head office of the Bunk hud to issue circulars and enter into settlmcnt from time to time to rediess the grievances of the employees

45. In case of discharge of woikmcn under the contract of service or under the Standing Orders the requirement of bona fide is sine quo HOP, .IS mnl.i fide oi colourable exei- cise of conliaciual oi statutory power is no! legal exercise of such power, in support of this proposition 1 refer to the commentary given in the Law of laJustri.il Disputes \iy Shri Malhotia on the basis of Supreme Court lodgements as at pages 895 and K96. It is as follows:.—

"The question oi the cmptoyciV freedom ot conduct in the context of industrial adjudication was consi- dered by the Supreme Court in Rai Bahadui Dewun Badn Dm, VS. Industrial Tubun.il, icpoitcd in 1962. U, I.LI W, Hi loulship hhti.e dujendijyiulkiir spe.ikmp loi MK- m.ijoiilv vn'd 'Tin.¹ doctrine of absolute (io.'dom of contract has thus to yield to the higher claims for social justice the right to dismiss on employee is also controlled subject to well-recognised limits in order to guarantee security of tenure to industrial em- ployees'. Hence in industrial Law, the claim of the employer to terminate the service of his work- men under rhe contract of employment or In the Standing Orders by giving him a notice or by pay- ing him wages in lieu of such notice amount* to a chum of 'hire and fire' on employee. Such claim would negative security of service which has been secured to industrial employees through industrial adjudication and the process of collective bargain- ing evolved from long-drawn strike. Hence, before the action of discharge or dismissal by way of punishment for a misconduct can be taken against a workman under the contract of service or stand- ing orders, the requirement of bona fide is sine quo ral justice to draw up a regular proceedings against him. Further more even in cases of discharge ot a workman under (he contiact of service or stand- ing orders, the requirement of bona-fi.de Is sine quo non as mala fide or colourable exercise of a con- tractual or statutory power is not legal exercise of such power.

If under the garb of termination simplicltcr the employer acts mala fide or with the intention to penalise the concerned workman, it would be colourable exercise of the power, victimization or unfair labour practice and the industrial tribunal would have the jurisdic- tion to intervene and set aside such termination (1966, I, LLJ, Page 398)".

46. As the Bank has violated the provisions of para. 20.8 in connection with the appointment of Shri Shrlmali and as it terminated his service on the basis of contract of service with a view to deprive him of getting the benefits of con- firmation it can be inferred that the exercise of powers in terminating the services of Shri Shrimali on the basis of contract of service by the Bank was colourable. Hence the termination of service of Shri Shrimali was not proper and just and this Tribunal has jurisdiction to Intervene ond set aside the termination.

47. As Shri Shrimali is entitled to reinstatement he )s also entitled to get back wages from the date of discharge till the date of reinstatement.

48. Shri Sheikh has given application dated 13-2-1973 In Bombay on 15-2-1973 before me after the arguments in this case were heard at Nagpur. Hence notice was issued fo the Union to show cause.

49. The Union has sent reply OD 7-3-1973. It ia as

follows:—

"1. That the party II Bank vide their application dated 13-2-1973 (received on or about 26-2-1973) stated that Shri Shrimali is gainfully employed. In this respect, it is submitted that the statement by the Party II Bank is baseless and irrelavent. The Bank has not produced any evidence in respect of the said statement.

It k therefore humbly prayed that the application dated

13-2-1973 be dismissed."

50. The Bank has not produced any evidence saying that Shri Shrimali has been employed gainfully at his native place in Udaipur District hi Rajasthan, since he left the Bank's service and that he still continue In service.

51. The employee has also not come before me to deny that he is not employed. In these circumstances it will be in the interest of both the parties, to direct that the work- man should apply to the appropriate Laboui Court under Section 330(2) of the I.D. Act, 1947 for getting the arrears of wages determined. Ends of justice will meet if I direct in this reference that Shri Shrimali is entitled to get back wages from the date of discharge till the date of reinstate- ment minus the earnings made by him on account of service during this period if any and to get the arreas of wages duj to him by the Bank determined In a proceeding under Section 330(2) of the I.D. Act, 1947.

52. In the end 1 pass the following order :

(i) It is hereby declared that the section of the manage- ment of the Central Bank of India in terminating the services of Shri B. K. Shrimali, Peon-cum- Watchman at Dhulia Branch of the Bank was not justified, and that he is entitled to reinstatement and continuity of service.

(it) It is hereby declared that the applicant is entitled to back wages from the date ol discharge till the date of reinstatement minus the earnings made by

of Shri S. Thangavelu during the pendency of disci- plinary proceedings against him is justified? If not, to what relief is the said Thangavelu entitled?" him on account of service if any during this period and that he should set the arrears of wages due to him by the Bank determined by filing application under Section 330(2) of the I.D. Act, 1947 to the appropriate Labour Court,

(iii) Award is made accordingly;

(iv) No order as to costs.

N. K. VANI, Presiding Officer [No. L. 12012/48/7M.RIII]

S.O. 1288.—In pursuance of section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the following award of the Industrial Tri- bunal, Madras in the industrial dispute between the em- ployer in relation to the State Bank of India and their workmen, which was received by the Central Government on the 24th April, 1973.

BEFORE TH1RU G. GOPINATH, B.A., B.L., PRESIDING OFFICER, INDUSTRIAL TRIBUNAL, MADRAS.

(Constituted by the Central Government).

Monday, the 9th day of April, 1973

Industrial Dispute No. 41 of 1972

(In the matter of the dispute for adjudication under section 10(1) (d) of the Industrial Disputes Act, 1947 between the workmen and the Management of State Bank of India, Madras-1).

BETWEEN

The workmen represented by :—

The General Secretary, State Bank of India Employees and Sub-staff union, Hussainy Mansions, 36/37, Angappa Naicken Street, Madras-1,

AND

The Secretary and Treasurer, State Bank of India, North

Heach Road, Madras-1.

Reference;

Order No. L. 12012/43/72/LRIII dated 26-9-1972 of the Ministry of Labour and Rehabilitation, Depart- ment of Labour and Employment, Government of India, New Delhi.

2. The relevant facts are not in dispute, One Shri Thanga- velu, the employee concerned in this case, was a head clerk in what is now designated as the Madras Main Branch of the State Bank of India. The Bank has a scheme, whereby it assists its employees to buy scooters and motor cycles, by providing 80 per cent of the cost of the vehicle, repayable in not more than 48 monthly instalments, with interest at 2-1/2 per cent. The conditions of the advance are that the employee should utilise it to buy a scooter or motor cycle as the case may be, within a month of the date of payment of the advance aDd (2) he should produce to the Bank, the registration certificate of the vehicle, within a month of avail- ing of the advance and execute a hypothecation agreement like Ex. M-2, hypothecating the vehicle to the Bank. Shri Thangavelu applied for an advance of Rs. 2,500 for the purchase of a scooter and executed an agreement in the form exhibited as Ex. M-l and received the loan on 24-1-1969 He did not purchase a scooter within the stipu- lated period of one month. Under the terms of the agree- ment, he had to repay the loan immediately. The manage- ment called upon him on 31-5-1969 to return the advance and also informed him that if he failed to refund the advance, he would be liable for disciplinary action (Ex, W-l). This was followed by another letter from the Bank to Shri Thang_a- veln dated 31-5-1969, asking him to refund the advance with interest at 9-1/2 per cent per annum (Ex, W-2). As there was no compliance with these letters, n charge memo dated 4-9-1969 was issued to Shri Thangavelu, specifying two charges against him. The first charge was that he having availed of a loan of Rs. 2,500 for the purchase of scooter under the Bank's scheme, had neither purchased a scooter nor repaid the advance and that at the time he availed the loan, he had no intention to purchase a scooter and that he had mis-used an amenity ottered to members of the staff and obtained the advance by a misrepresentation and put the money to wrong use, and thereby committed an act prejudi- cial to the interest of the Bank and hence a gross misconduct in terms of para 512(4) (j) of the Sastry Award read in conjunction with paragraph 18.28 of the Desai Award. The second charge was an act of wilful in-subordination for disobedience of lawful and reasonable orders of the manage- ment in that, despite repeated reminders, he neither executed a 'B' Form (Ex. M-2), nor closed the loan account within the stipulated time. Shri Thangavelu submitted an explana- tion and thereafter a domestic enquiry was held on the charges by one Shri S. Venkatachari, a Staff Officer of the Bank. This was on 8-4-1970. The enquiry officer found Shri Thangavelu guilty of the first charge and exonerated him of the second {vide the findings Ex. M-6 dated 1-7-1970). By its letter dated 23-7-1970, the management proposed to award the punishment of stoppage of increment for a period of one year (Ex. W-5). Shri Thangavelu submitted his explanation against the proposed punishment In terms of Ex. W-8 dated 28-8-1970. Under Ex. M-7 dated 16-9-1970, the management passed an order under paragraph 521 (5)(d) of the Sastry Award read In conjunction with paragraph 18.28 of the Dosai Award, stopping the increment of Shri Thanga- velu for one year, and he was informed that his next incre- ment would fall due on 1-4-1971. Against this order of punishment, Shri Thangavelu preferred an appeal to the appellate authority, who declined to interfere, This dispute coming on for final hearing on Saturday the 17th day of March, 1973 upon perusing the reference, claim and counter statements and all other malciipj puncis on re- cord and upon hearing the arguments of Thiru K. S. lana- kiraman, Advocate for (he workmen and of Thiruvalargal M, R. Narayanaswamy and N. Balasubramanian, Advocates for the Bank and having stood over till this day for consi- deration, this Tribunal mode the following.

AWARD

This is an industrial dispute between the Management of the State Bank of India and their workmen referred for adjudication by the Government of India in respect of the mutter specified in the schedule annexed to the order of re- ference. The schedule is as follows :

3. At the time of the charge sheet, Shri Thaugavelu was drawing a pay of Rs. 465 exclusive of allowances. Being an employee who joined the services of the bank prior to 31-1-1950, his annual Increment fell due on the first of April each year, as per the provisions of the Sastry Award. Nor- mally, he would have reached the maximum in his scale on 1-4-1970 as per the revised scales of pay finalised in Septem- ber, 1970, which would have become effective as from 1-1-1970. The basic pay of Shri Thangavelu as on 1-1-1970 was to be Rs, 515 and with effect from 1-4-1970, Rs, 550. The complaint of the Union is that Shri Thansavelu became entitled to his annual increment, which would have taken him to Rs. 550 with effect from 1-4-1970 and that it was illegal for the management to have withheld this increment, as from 1-4-1970. It is further alleged by the Union that by withholding the increment due to Shri Thangavelu on 1-4-1970 and imposing the same as a punishment by its order dated 16-9-1970 postponing (he next annual increment of "Whether the action or" tlio Management of the Slate Bank of India in withholding the annual increment

Shri Thangavelu to 1-4-1971, the management not only deprived Snri Thangavelu of his annual increment which fell due on 1-4-1970 itself, together with all the other attendant benefits but also had deprived him permanently of Ivs personal pay, for the rest of his service.

4, Though in the claim statement, the Union has prayed for a direction that the punishment of stoppage of one incre- ment imposed by the management by its order dated 16-9-1970 is void and therefore liable to be set aside, the prayer in the rejoinder is to hold that the action of the management in withholding the incremen! duo to Slid Ihanguveiu on 1-4-1970 was illegal, inasmuch as the increment was not withheld on any punishment for any proved misconduct on that day, and that even if there was a disciplinary action pending against him, there was no justification for the management to withhold the increment, which Shri Thanga- velu was entitled to on 1-4-1970. It is also contended that the management had no power or justification to give retros- pective effect to the order of punishment of stoppage of Increment passed on 16-9-1970. In the light of the order of reference, it is clear that the correctness of the order of punishment dated 16-9-1970 is not in question, The subject- matter of the reference is the propriety of the action of the management in withholding the annual increment of Shri Thangavelu, during the pendency of disciplinary pro- ceedings.

5. The question whether the Management of the State Bank of India was justified in withholding the annual incre- ment of Shri Thangavelu during the pendency of disciplinary proceedings against him, that is, with effect from 1-4-1970, has to be answered primarily if not solely on the basis of the directions in the Sastry Award and the Desai Award, Para 85 of the Sastri Award deals with the question of the grant of increments. Since it has been accepted and reproduced in substance in the Desai Award para 5.117, that portion of the Sastry Award need alone be referred to. Tt reads thus :

"Workmen should normally have the benefit of the annual increments as a matter of course, provided there is not a substantially good reason to deprive them of the same either because of their mis- conduct or gross inefficiency. The wage scale has to be so devised that it provides for the growing needs of the workmen and his family. Stoppage of increment, therefore, is more or less by way of punishment, The giving of increments should not be regarded as a matter of bounty at the sweet will and pleasure of the management. At the same time, the management should have the right to see that workmen keep up the normal standard of efficiency and not lapse into indifference and ineffi- ciency because of the assured prospect of an incre- mental scale. We, therefore, direct that increments should normally be given and stoppage of incre- ments by management should be only by way of punishment for proved misconduct or gross ineffi- ciency. Aa a working rule, if in the previous year there are three adrersc remarks in the service register of the workman entered against him as a result of the management's enquiry into his con- duct and after consideration of any explanation given by him, it may be taken as a prima facie case for stopping the increment at the next stage and for the next year. If an employee's increment is to be withheld it should only be done after a proper charge-sheet has been framed against him and he has been given adequate opportunity to defend himself. The order in writing withholding the increment should also mention whether it will have the effect of postponing future increments,"

It is clear from the above that increments should be granted to tbte employee as a rule and withholding Ihereof is an exception. It is further explicit that the stoppage of incre- ment by the management should only be by way of punish- ment for proved misconduct or gross inefficiency. It is equally manifest that if an employee's increment is to be withheld or stopped, it should be only after a charge-sheet has been framed against him and he has had an opportu- nity to defend. Admittedly, Shri Thangavelu was not given his inciemcnt on 1-4-1970, which he was normally entitled to. Therefore, there was a withholding of his increment on 1-4-1970 and this was obviously long before the conclusion of the disciplinary proceedings against Shri Thangavelu, In other words, the withholding of his increment was not as a punishment for any proved misconduct or gross inefficiency. There can be no doubt that on the face of it, the action of the management in withholding the increment of Snri Thangavelu on 1-4-1970 was in violation of the terms of the Sastry Award, inasmuch as it directs that such with- holding of increment can be made only by way of punish- ment.

6. Thiru M, R. Narayanaswamy, the learned counsel for the management however argued that the direction in the Award is that increment should norniHlIy be given, that it is not therefore automatic and that when a misconduct is alleged, or an enquiry is pending against the employee, the circumstances are not normal and that therefore the em- ployee cannot complain when he is not given his increment, tinder such circumstances. It is true that a charge-sheet had been issued to Shri Thangavelu on 4-3-1969 and that on 1-4-1970 when the increment was due to him, an enquiry into the charge was pending and hence he was under a cloud. But I certainly cannot see eye to eye with Thim Narayanaswamy's contention that this would afford a right to the management to withhold the incretnent of Shri Thanga- velu on 1-4-1970, on the basis that the circumstances, so far as he was concerned, were fnr from normal. Para 85 of the Sastry Award should not be read in isolation but has to be read with Para 86, which gives the clue to the meaning of the word 'normally' in paragraph 85, and it shows that the abnormal circumstance contemplated by the Award Is the dwindling of profits, and was so considered by the Sastry Tribunal. This has been approved by the Desai Award. In fact, when 85 itself directs that the stoppage of increment should only be by way of proved misconduct, it is idle to contend that just because there Is a charpe pending against the employee, which, on that date, had not been proved, his Increment could be withheld. In this connection, I may repeat the observations in the Sastry Award to the effect that the giving of increment should not be regarded as a matter of bounty, at the sweet will and pleasure of the management.

7. It is then urged by tho learned counsel for the manage- ment that what was done by the management was only to defer the payment of increment by reason of the fact that there was an enquiry pending against Shri Thangavelu, that it was purely a tentative decision, and that tho Sastry Award does not prevent the management from deferring or postpon- ing the increment. I am unable to agree with this argument either. There is nothing in para 85 of the Award which allows the management to defer the increment at any stage. There was also no intimation sent to Shri Thangavelu that his increment was being deferred. In fact, at no stage before the conclusion of the domestic enquiry against Shri Thanga- velu was he informed that his increment was deferred. Fur- thermore, I fail to see any real distinction between 'deferring' and 'withholding' of increment, Thiru Narayanaswamy no doubt drew my attention to the meaning of tho words 'withhold' and 'defer' in the Concise Oxford Dictionary, which says that withholding is refusal to grant whereas deferring is postponing or putting off. But it must be noticed that when tho management postponed the increment, they in effect withheld It; for, an employee Is normally entitled to his in- crement and when you do not giye his increment when It is due, you are only withholding it, which the management is not justified in doing^ in view of the Sastry Award, except in a case of proved misconduct or gross inefficiency. There- fore, the management cannot justify its stand in not giving the increment to Shri Thangavelu on 1-4-1970 on the basis that there was no prohibition in the Sastry Award from de- ferring increment pending departmental enquiry.

8, Thiru Narayanaswamy then invited my attention to Ex. W-ll. which refers to an agreement between the manage- ment and the All India Slate Bank of India Staff Federa- tion, whereunder the management was allowed to defer sanc- tion of increments against employees against whom disciplinary proceedings were pending for a period of 9 months from the date when the annual increment fell due. The present Union, that is, the State Bank of India Employees' Union is admittedly not a party to that agreement. The agreement, it will be noticed, runs contra to the specific directions In the Sastry Award. Further, this agreement is subsequent to the disciplinary action taken against Shri Thangavelu There- fore, Ex, W-ll can in no way help the management to justify its stand that in spite of the Sastry Award! it could defer the payment of increment to Shri Thangavelii as and tram 1-4-1970. There can be no doubt that the management when it failed to give the increment due to Shri Thangavelu

on 1-4-1970 withheld his increment. According to Para 85 of the Sastry Award, it can only be done alter a proper charge sheet has been framed against him and he had been given adequate opportunity to defend himself. This envisa- ges that such withholding of increment could only be after the enquiry was over and when punishment was imposed on him. The order of punishment is dated 16-9-1970. What the management did from 1-4-1970 to 16-9-1970 was to with- hold the increment and thereafter to stop it by the order dated 16-9-1970 (Ex. M-7). In other words, the manage- ment had withheld the increment that fell due and payable to Shri Thangavelu as and from 1-4-1970, even before he had an opportunity to defend himself. This i

9. The learned counsel for the management argued that the management had passed the order Ex. M-7 after a proper enquiry, that its propriety is not challenged and since that order has stopped the increment of Shri Thangavelu as and from 1-4-1970, the Union cannot have that order vacated or set aside in an indirect manner which would be the result of holding in favour of the Union in this reference. We are here concerned only with the justification of the action of the management in withholding the increment of Shri Thangavelu on and from 1-4-1970, pending disciplinary proceedings. We are not now concerned with what the management could or could not do on 16-9-1970 in exer- cise of its disciplinary powers. The validity of Ex. M-7 is beyond the pale of this controversy. Undoubtedly, the management has not paid the increment of Shri Thangavelu on M-1970 when it was due and in so withholding the increment the management acted contrary to the direction in the Sastry Award. I do not sec any force in the contention of the learned counsel for the management that it is in- cumbent on the Union to question the propriety of Ex. M-7 itself and that so long as that is not done, the Union can- not question the action of the management In withholding the increment of Shri Thangavelu, with effect from 1-4-1970. It was also urged for the management that Ex. M-7 could have retrospective operation. The operative part of Ex. M-7 reads as follows :