Shri Ambica Mills Co., Ltd. v. Shri S. B. Bhatt and Another

Gaje3 dragadAar J. GAJENDRAGAD.KAR, J.-The principal question

which this appeal by special leave raises for our deci-sion relates to the nature and extent of the jurisdic-tion conferred on the authority by s. 15 of the Payment of Wages Act, 1936 (Act 4 of 1936) (hereafter 19~o called the Act). This question arises in this way. The Sh "c:.. . A-;:- M.11 appellant Shri Amhica Mills Co. Ltd., is a textile mill ~t~. working at Ahmedabad. Three of its employees named v. Punamchand, Shamaldas and Vishnuprasad made an Shri s. B. Bhtt application to the authority under s. 16 of the Act .s-Anothtr and prayed for an order against the appellant to pay . - them their delayed wages. In order to appreciate the Ga1endragadkar J. contentions raised by the appellant disputing the validity of the respondents' claim it is necessary to set out the background of the dispute in some detail. It appears that an award called the Standardisation Award which covered the mill industry in Ahmedabad was pronounced by the Industrial Tribunal on April 21, 1948, in Industrial Reference No. 18 of 1947. This award fixed the wages for different categories of workers working in the textile mills at Ahmedabad, but left over the question of clerks for future decision.

Amongst the operatives whose wages were determined by the award the case of hand-folders was specifically argued before the Industrial Tribunal. The Labour Association urged that the rate of Rs. 36-9-0 awarded to them was too low and it was pointed out on their behalf that they did the same work as cut-lookers did in Bombay where a head cut-looker was given Rs. 52 -and a cut-looker Rs. 42-4-0. On the other hand the mill owners contended that the rate should have been fixed at Rs. 34-2-0 instead of Rs. 36-9-0. The Tribu-nal found it difficult to decide the point because enough evidence had not been produced before it to show the kind of work that hand-folders were doing at Ahmeda.bad; that is why the Tribunal was unable to raise the wage of hand-folders to that of cut-lookers in Bombay. However, it ma.de & significant direction in that behalf in these wonb: "At the same time", it was observed, "we desire to make it clear that if there are persons who a.re doing cut-looking as well as folding, they should be pa.id the rate earned by the cut-lookers in Bombay". This question has been con-sidered by the Tribunal in paragraph 16 of its award.

The question of clerks, the decision of which had been adjourned by the Tribunal was later considered 1960 by it and an award pronounced in that behalf. How-s'., -b. M'I ever, the said award was later terminated by the clerks nrl co nm .. "a •I 5 m ' 1949, an d t h at J e d to an agreement b etween the

Ltd.

~. Ahmedabad Mill Owners' Association and the Textile Shri s. B. Bhatt Labour Association in the matter of wages payable to

A•otMr clerks. This agreement was reached on June 22, 1949. - . Clauses 2 and 5 of this agreement are material for the Gaj..,dragaakar). purpose o f t h' 1s appea. J L et us t h ereiore ,. rea d · t h e two

clauses:

"2. That this agreement shall apply to all the Clerks employed in the local mills, i.e., persons doing clerical work, that is those who do routine work of writing, copying or making calculations and shall also include compounders and assistant compounders who are qualified and who are employed in the local mills.

¶5A separ<Lte scale for those of the employees who occupy t.he position lower than that of a full. fledged Clerk but higher than that of an operative will be provided as under:-

Rs. 40-3-70-EB-4-90-5-105.

This scale will be applicable in case of ticket-boy, ticket-checker, coupons-sell!Jr, talley-boy, scale-boy, production-checker, thread-counter, cloth-measurer or yard-counter, fine.reporter, cloth/yarn-examiner, department storeman, cut-looker and those others who have not been included above but who can pro-perly fall under the above category."

After this agreement was thus reached persons doing the work of cut-lookers began ~ feel that they were entitled to the benefit of cl. 5 and some· claims were put forth on that basis against the employers. Vishnuprasad and Punamchand applied before the authority (Applications Nos. 39 and 40 of 1954) and claimed delayed wages against the appellant on the ground that they were entitled to higher wages under paragraph 16 of "the award in Reference No. 18 of 1947. This claim was resisted by the appellant. The appellant urged that the applications were not main· tainable under. the Act, that they were barred in view of an arbitration award which was then in operation and that on the merits. the applicants were not doing the work of cut-looking. All these contentions were i96o rejected by the authority. It examined the duties . --;:- IWll performed by the applicants, and it came to the con-5 4 ~,:. hn (;0~ clusion that both the applicants were folders doing ·v. cut-looking, and consequently they were entitled each SMi s. B. Bhatt to Rs. 42-4-0 per month; in other words, the authority ©- Anoth" came to the conclusion that the applicants properly . - ie .c 11 un d er tie 1 category spem "fi e d · paragrap h 16 o. fGa1endragadkar j. 111 the award referred to above and as such they were entitled to recover the difference between Rs. 36-9-0 per month which was paid to each one of them and Rs. 42-4-0 which was due to each one of them. This decision was announced on September 2, 1954.

On July 11, 1955, the present respondents moved the authority under s. 16 of the Act. They urged that they were semi-clerks and occupied a position lower than that of a full-fl.edged clerk and higher than that of an operative, and as such they were governed by cl.

5 of the agreement· and were entitled .to increment provided by the said clause. This claim was resisted by the appellant on several grounds. It was urged that the present applications were barred by res judi-cata, that the authority had no jurisdiction to enter-tain the applications, and. that on the merits the respondents were n(lt semi-clerks as contemplated by cl. 5 of the agreement. On these contentions the authority raised four issues. It held against the respondents and in favour of the appellant on issues 1 and 2 which related to the plea of res judicata and the status of the respondents. In view of the said findings it thought it unnecessary to decide the two remaining issues which dealt with the quantum of amount claim-ed by the respondents .. It appears that the question of jurisdiction, though urged in its pleading by the appel-lant, was not. raised as an issue and has not been con-sidered by the authoPity. The-finding of res judicata was recorded against Punamchand and Vishnuprasad.

Shamalda.s had not made any . previous application and so no question of res judicata arose against his application. His application was dismissed only on the ground that he could not claim the status of a.

1960 semi-clerk. The same finding was recorded against the - two other respondents. ft appears that at the trial Sliri c Ambica Mills b eiore i: t h e au th on "t y th e par t" ies fi} e d a JOrnt · · P urs1s ·

Ltd o.,v. · which enumerated the duties performed by the respon-Shri s. s. Bhatt dents in paragraphs 2 to 7. The authority took the

Another view that "the duties performed by them cannot be -- said to be the duties of persons doing the routine work Gaj•nd•agadka• J. of writing, copying and making calculations". In the

result it was held that the respondents were governed by the Standardisation Award and did not fall under the subsequent agreement.

This decision was challenged by the respondents be-fore the District Judge who was the appellate autho-rity under the Act. The appellate authority also was asked to consider the question of jurisdiction. It exa-mined the relevant· provisions of the :Act and held that the authority had jurisdiction to entertain the applicationH made before it by the respondents. On the question of res judicata it agreed with the finding of the authority, and held that the claims made by Punamchand and Vishnuprasad were barred by res judicata. Similarly, on the question of the status of the respondents it agreed that they were not semi-clerks. It is clear from the judgment of the appellate authority that in determining the status of the respon-dents, the appellate authority applied the same test as was invoked by the authority, and it considered the question as to whether the duties performed by the respondents were similar to the duties per:formed by clerks. It is obvious that the tests applied are tests relevant to the employees falling under cl. 2 of the agreement, and since the application of the said tests led to the conclusion that the respondents did not fall under cl. 2 the appellate authority held that cl. 5 was inapplicable to them; in other words, the judgments of both the authority and the appellate authority clearly show that they took the view that cl. 2 was wholly determinative of the issue, and that unless an employee fell under cl. · 2 he can-not claim to be covered by any part of the agreement including cl. 5. That is why the appeals perferred by the respondents were dismissed by the appellate r96o authority on September 2, 1954. . Shri A;;:; Mills

These appellate decisions were challenged by the co., Lt~. respondents by filing a writ petition under Arts. 226 v. and 227 of the Constitution before the Bombay High Shri s. B. Bhatl Court. The Bombay High Court has held that the & Another decision . of the . appellate authority d d was h patently erro- . G . d--dk neous m law m that it procee e t e assumpt10n a1en 1aga ar 011 that unless cl. 2 of the agreement was satisfied cl. 5 would be inapplicable. It also held that the finding concurrently recorded by the authorities below on the question of res judic,ata against two of the respon-dents was manifestly erroneous. On these findings the High Court allowed the writ petition filed by the respondents, set aside the orders of the authorities below and sent the case back to the authority for deal-ing with it in accordance with law in the light of the judgment delivered by the High Court. It is against this decision that the appellant has preferred the pre-sent appeal by special leave .

. The first contention which the learned Attorney-General has raised before us on behalf of the appel-lant is that the High Court has exceeded its juri~dic­ tion under Arts. 226 and 227 in interfering with the decision of the appellate authority. He contends that at the highest the error committed by the appellate authority is one of law but it is not an error apparent on the face of the record, and he argues that it was not within the competence of the High Court to sit in appeal over the judgment of the appellate authority and examine meticulously the correctness or the pro-priety of the conclusions reached by it.

The question about the nature and extent of the jurisdiction of the High Courts in issuing a writ of certiorari under Art. 226 has been the subject-matter of several decisions of this Court. It is now well set-tled that the said writ can be issued not only in cases of illegal exercise of jurisdiction but also to correct errors of law apparent on the face of the record. In this connection it may be pertinent to refer to the observations made by Denning, L.J., in Rex v. North-umberland CompenBation Appeal Tribunal (1). "The z96o writ has been supposed to be confined to the correc-s' A-b. M. tion of excess of jurisdiction", observed Lord Justice

1 11 'D ' d d h . f Co., m Ltd. >ea ennmg, "an not to exten to t e correction o

v. errors of law; and several judges have said as much. So•i s. B." Bhatt But the Lord Chief Justice has, in the present case,

&. Another restored certiorari to its tightful position and shown

d-dk that it can be used to correct errors of law which ap-Ga;e11 raga ar 1 . pear on the face of the record even though they do

not go to jurisdiction''. There is no doubt that it is only errors of law which are apparent on the face of the record that can be corrected, and errors of fact, though they may be apparent on the face of the record, cannot be corrected [Vide: Nagendra Nath Bora v. The Commissioner of Hills Division and Appeals, Assam(')]. It is unnecessary for us to consider in the present ap-peal whether or not a certiorari can issue to correct an error of fact on the ground that the impugned finding of fact is not supported by any legal evidence. Thus it would be seen that the true legal position in regard to the extent of the Court's jurisdiction to issue a writ; of certiorari can be stated without much difficulty. Difficulty, however, arises when it is attempted to lay clown tests for determining when an error of law can be said to be an error apparent on th~ face of the re-cord. Sometimes it is said that it is only errors which are self-evident, that is to say, which are evident with-out any elaborate examination of the merits that can be corrected, and not those which can be discovered only after an elaborate argument. In a sense it would be correct to say that an error of law which can be corrected by a writ of certiorari must he self-evident; that is what is meant by saying it is an error apparent on the face of the record, and from that point of view, the test that the error should he self-evident and should not need an elaborate examination of the re-cord may be satisfactory as a working test in a large majority of cases; but, as observed by Venkatarama Ayyar, J., in Hari Vishnu Kamath v. Syed Ahmad Ishaque, (') "there must be cases in whieh even this test might break down because judicial opinions also differ, and an error that may be considered by one judge as self-evident might not be so considered by '960 another". Judicial experience, however, shows that Shri Ambica Mills though it cannot be easy to lay down an unfailing test co., Ltd. of general application it is usually not difficult to v. decide whether the impugned error of law is apparent Shri s. B. Bhatt on the face of the record or not. & Another

What then is the error apparent on the face of ~he Gajend;;;;:,dkar J. record which the High Court has corrected by issumg a writ of certiorari in the present case? According to the High Court the construction placed by the a ppel-late authority on els. 2 and 5 of the agreement is patently and manifestly erroneous. The appellate authority held on a construction of the said two clauses that cl. 2 was the determinative clause, and that unless an employee satisfied the fequirements of the said clause he could not claim the benefit of cl. 5. In deciding whether the High Court should have issued the writ or not it is necessary to examine the said two clauses. On looking at the two clauses it seems to us that the conclusion is inescapable that the error com-mitted by the appellate authority is manifest and obvious. Clause 2 applies to clerks employed in the local mills, and as such it describes the nature of the work which is required to be done by persons falling under that clause. Clause 5, on the other hand, obviously provides for a separate scale for those em-ployees who are not clerks nor operatives; these em.

ployees occupied a position higher than that of an operative and below that. of a full.fledged clerk.

Therefore there is no don ht that persons falling under cl. 5 cannot fall under cl. 2, and should not tlierefore be expected to satisfy the test prescribed by the said clause. A bare perusal of• the list of employees speci-fied by designation as falling under cl. 5 will show that the application of the test which is relevant under cl. 2 would in their ca~e be wholly inappropriate and irrelevant. Therefore, in our opinion, the error committed by the appellate authority was. of such a manifest character that the High Court was justified in correcting the said error by the issue of a writ of certiorari. The question involved in the decision of the dispute .is not so much of construction of the docu-ment as of giving effect to the plain. terms of the r960 document. If cl. 5 expressly provides for employees

. not falling under cl. 2, and if that intention is clarified Shri co., Ambico Mills b y t h e l' 1st o f d es1gnat10ns. · · w h' 1c h f a 11 un d er c 1 . 5 an d

Ltd.

v. yet the appellate authority reads that clause as sub-Shri s. B. Bhau ject to cl. 2, that must be regarded as an error patent

& Another on the face of the record. It is not a case where two

- alternative conclusions are possible; it is a case of G•J••dragadkar J. plain misreading of the two provisions ignoring alto-

gether the very object with which the two separate provisions were made. In our opinion, therefore, the contention raised by the learned Attorney-General that by issuing the writ the High Court has exceeded its jurisdiction is not well-founded.

That takes us to the second, and in fact the prin-cipal, contention which has been seriously argued before us by the learned Attorney-General. He urged that the applications made by the respondents' Union on behalf of the three employees were incom-petent under s. 15 of the Act and the authority ex-ceeded its jurisdiction in entertaining them. It. is true that this point was not specifically urged before the authority, but it appears to have been argued before the appellate authority and the High Court, and it is this contention which raises the problem of constru-ing s. 15 of the Act. The case for the appellant is that the jurisdiction conferred on the authority under s. 15 is a limited jurisdiction, and it would be unrea-sonable to extend it on any inferential ground or by implication.

The scheme of the Act is clear. The Act was intend-ed to regulate the payment of wages to certain classes of persons employed in industry, and its object is to provide for a speedy and effective remedy to the em-ployees in respect of their claims arising out of illegal deductions or unjustified delay made in paying wages to them. With that object s. 2(vi) of the Act has defined wages. Section 4 fixes the :.vage period. Sec-tion 5 prescribes the time of payment of wages; and s. 7 allows certain specified deductions to be made. Section 15 confers jurisdiction on the authority ap-pointed under the said section to hear and decide for any specified area claims arising out of deductions from wages, or delay in payment of wages, of persons z960 employed or paid in that area. It is thus clear that h . A--:- the only claims . w h. h can b e entertame . d b y t h e S •• c mb"a M•lls JC Lid authority are claims arising out of de~uc.tio?s .or delay •··•. made in payment of wages. The Junsd1ct10n thus Shri s. B. Bhall conferred on the authority to deal with these two & Another categories of claims is exclusive; for s. 22 of the Act . ~ provides . that matters w h' h }' 1e w1 'th' m th . e • • d _1c • t' 10n Ga;endragadkar J 10 1ur~s of the authority are excluded from the JUnsdict10n of ordinary civil courts. Thus in one sense the jurisdic-tion conferred on the authority is limited by s. 15, and in another sense it is exclusive as prescribed by s. 22.

· In dealing with claims arising out of deductions or delay made in payment of wages the authority in-evitably would have to consider questions incidental to the said matters. In determining the scope of these incidental questions care must be taken to see that under the guise of deciding incidental matters the limited jurisdiction is not unreasonably or unduly ex-tended. Care must also be taken to see that the scope of these incidental questions is not unduly limited so as to affect or impair the limited jurisdiction conferred on the authority. While considering the question as to what could be reasonably regarded as incidental ques-tions let us revert to the definition of wages prescribed bys. 2(vi). Section 2(vi) as it then stood provided, inter alia, that 'wages' means all remuneration capable of being expressed in terms of money which would, if the terms of the contract of employment, express or im-plied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such em-ployment, and it includes any bonus or other additional remuneration of the nature aforesaid which would be so payable and any sum payable to such person by rea-son of the termination of his employment. It also pro-vided that the word "wages" did not include five kinds of payments specified in clauses (a) to (e). Now, if a claim is marie by an employee on the ground of alleg-ed illegal deduction or alleged delay in payment ·of wages several relevant facts would fall to be consi-dered. Is the applicant an employee of the opponent?;

r960 and that refers to the subsistence of the relation bet- -. . ween the employer and the employee. If the said 5h" ~mb~c~ M•lls fact is admitted, then the next question would be:

0··v. 1 wha1; are the terms of employment? Is there any

• Shri s. B. Bhatt contract of employment in writing or is the contract

Anolhor oral? If that is not a point of dispute between the - parties then it would be necessary to enquire what Ga;enaragadkar J ·are the terms of the admitted contract. In some cases

a question may arise whether the contract which was subsisting at one time had ceased to subsist and the relationship of employer and employee had come to an end at the relevant period. In regard to an illegal deduction a question may arise whether the lock-out declared by the employer is legal or illegal. In regard to contracts of service some times parties may be at variance and may set up rival contracts, and in such a case it may be necessary to enquire which contract was in existence at the relevant time. Some of these questions have in fact been the subject.matter of judicial decisions. (Vide: A. R. Sarin v. B. C. Patil('), Vishwanath Tukaram v. The General Manager, Central Railway, V. T. Bombay('); and Maharaja Sri Umaid Mills, Ltd. v. Collector of Pali(')); but we do not propose to consider these possible questions in the present appeal, because, in our opinion, it would be inexpedient to lay down any hard and fast or general rule which would afford a determining test to demar-cate the field of incidental facts which can be legiti-mately considered by the authority and those which cannot be so considered. We propose to confine our decision to the facts in the present case.

What are the facts in the present case? The rela-tionship of employer and employee is not in dispute. It is admitted that the three workmen are employed by the appellant, and do the work of bleach-folders. These folders are classified into Uttarnars and Chadhavnars. Indeed, the items of work assigned to these categories of folders are admitted. · The appel-lant contends that the employment of the three work- • men is governed by the Award which is in operation,

(1) (t95I) 53 Bom. L.R. 674. (2) [1957) Bom.L.R. 89._ (3) [1¢o]ll t.L.J. 364.

whereas the respondent Union _contends that they a.re 1960 governed by cl. 5 of the subsequent agreement. It is h .• ~ M" I . common groun d t h at b ot h t h e A wa rd an d t h e agree-S r> co n"'bieo S Ltd ment are in operation in respect of the persons govern- ··•. ed respectively by them, so that it is not disputed Shri s. B. Blatt by the appellant that the persons who are specified ©- llno111n by their designation under cl. 5 would be entitled to G . - the benefit of the said clause and would not be govern- •7•n4••g•4""' J. ed by the Award. If an employee is called a cut.

looker by any mill he would naturally fall under cl. 5;

in other words, all the specified categories of emplo-yees named by designation in that clause would not be governed by the Award though at one stage they were treated as operatives bilt they would be govern-ed by cl. 5 of the agreement; and if a person bearing that designation applied under s. 15 of the Act his application would be competent. The appellant's argument, however, is that when the la.st part of cl. 5 refers to other employees "who have not been inclu-ded above but who can properly fall under the above category" no designation is atta.ched to that class, and in such a case it would be necessary to enquire whe-ther a particular employee can properly fall under the said category, and that, it is urged, means that such =i an employee cannot apply under s. 15 but must go to

the industrial court under the ordinary industrial law.

Thus the controversy between the parties lies within a very narrow compass. An employee designated as a cut-looker can apply. under s. 15 and obtain relief from the authority; an employee not so designated but falling under the said category by virtue of the work assigned to him, it is said, cannot apply under s. 15 because the authority cannot deal with the question as to whether the said employee properly fa.lie under the said category or not. In our opinion, on these· facts, the question as to whether a particular emplo-yee is an operative falling under the Awa.rd or one who is above an operative and below the olerk falling under cl. 5 is a question which is so intimately and integrally connected with the problem of wages as defined under s. 2(vi) that it would be unreasonable 1960 to exclude the decision of such a question from the -- · jurisdiction of the authority under s. 15. If a contract Shri c Ambica Mills o f . emp 1 oymen t is · a d nut · t e( I an d t } 1ere 1s · a d' 1spn t e

Ltd 0 about the construction of its terms, that obviously "v. · Shri s. B. Bhatt falls within s. 15 of the Act. If that is so, what is the

Another difference in principle where a contract is admitted, - · its terms are not in dispute, and the only point in Ga;•ndragadkar J. dispute is which of the two subsisting contracts applies

to the particular employee in question. If the appel-lant's argument were to prevail it would lead to this anomalous position that if a general contract of em-ployment provides for payment of wages to different categories of employees and describes the said cate-gories by reference to the duties descharged by them, none of the employees can ever avail himself of the speedy remedy provided by s. 15 of the Act. In such a case every time a dispute may arise about the duties assigned to a particular employee before his wages are determined. In our opinion, to place such an arti-ficial limitation on the limits of the jurisdiction con-ferred on the authority by s.15 is wholly unreasonable. That· is the view taken by the High Court in the present case and we see no reason to differ from it.

The question about the nature· and scope of the limited jurisdiction conferred on the authority under s. 15 has been considered by this Court in the case of A. V. D'Costa v. B. C. Patel('). In that case the scheme of the Act has been examined by Sinha, J., s,s he then was, who spoke for the majority view, and it has been held that "if an employee were to say that his wages were Rs. 100 per month which he actually received as and when they fell due but that he would be entitled to higher wages if his claims to be placed 011 the higher wages scheme had been recognised and given effect to,. that would not be a matter within the ambit of the authority's jurisdiction. The authority has the jurisdiction to decide what actually the terms of the contract between the parties were, that is to say, to determine the actual wages; but the authority has no jurisdiction to determine the question of potential wages". The Court took the Yiew that the employee's complaint in that case fell within the latter illustra- ~~ tion. It would thus be seen that according to this s hri Ambico Mw, decision the authority has jurisdiction to determine co. Lid. what the terms of contract between the parties are, v. and if the terms of the contract are admitted and the Shri s. B. BA011 only dispute is whether or not a ·particular employee & Anoth" falls within one category or another, that would be G,,j,nd,-;;-;,;dk•• J. incidental to the decision of the main question as to what the terms of the contract are, and that precisely is the nature of the dispute between the parties in the present case.

The learned Attorney-General has relied very strongly on the decision of the Bombay High Court in Anthony Sabastin Almeda v. R. M. T. Taylor('). In that case the employer and the employee went before the Court on the basis of different contracts and the Court held that it was not within the jurisdiction of the· authority to decide which of the two contracts held the field, which of them was subsisting, and under which of them the employer was liable to pay wages. It would be clear from the facts ih t.hat case that two rival contracts were pleaded by the parties, according to whom only one contract was subsisting and not the other, and so the question for decision was which contract was really subsisting. We do not propose to ex press any opinion on the correctness of the view taken by the Bombay High Court on this question. All we are concerned to point out is that in the present appeal the dispute is substantially different. Both contracts admittedly are subsisting.

The only point of dispute is: do the t.hree workmen fall within the category of cut-lookers or do they not?

If they do then cl. 5 applies; if they do not the Award will come into operation. That being so, we do not see how the decision in Almeda's case(') can really assist the appellant.

In this connection we may point out that it is com.

mon ground that in Ahmedabad textile mills do not have a class of employees called cut-lookers as in Bombay. The work of cut.looking along with other kind of work is done by bleach-folders and other

(I) (<956) Bom. L.R. 899.

,960 folders. That was the finding made by the authority

on an earlier occasion when Punamchand and Vishnuc Sh•i Ambic• Mills prasad had moved the authority under s. 15 of the

<;o.~-Lld. Act. The learned Attorney-General has strenuously Slri s. B. Bhatt contended that it is unfair to give the same pay to the

b Anoth" three workmen who &re doing the work of cut.lookers . - only for a part of the time· and were substantially .<i•1•ndragadAa• J. doing the work of bleach-folders; that, however, has

no relevance in determining the present dispute. The only point which calls for decision is whether or not the work done by the three respondents takes them within the category of cut.-lookers specified under cl. 5, and as wc have already pointed out, on an earlier occasion the authority has found in favour of two of the three respondents when it held that they were fol-ders doing cut-looking. If the said finding amounts to res judic.ata it is in favour of the two respondents and not in favour of the appella.nt; that is why the learned Attorney-General did not seriously dispute the correctness of the decision of the High Court on the question of 'res judic.ata.

In the result the appeal fails and is dismissed with costs.

Appeal dismissed.

THE INCOME-TAX OFFICER, ALWAYE

v.

THE ASOK TEXTILES LTD., ALWAYE

(J. L. KAPUR, M. HIDAYATULLAH and J. c. SHAH, JJ.) Income-tax-Rectification, scope of-If can be equated with review under the Code-Advance payment of tax-Penal interest due to additional tax on rectification, if could be imposcd-~Code of Civil Procedure (V of i908), 0. 47, r. I-Indian Income-lax Act, I922 (Ir of i922), SS. rBA (8), 35· After the respondents 'net assessable income for the years 1952-53 was determined, it declared dividends which attracted provisions of the Finance Act, ry52, and became liable to the

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 243of1959. ·

Appeal by special leave from the judgment and order dated April 24, 1958, of the Bombay High Court in Special Civil Application No. 874 of 1958.

M. O. Setalvad, Attorney-General for India, G. P.

Vyas and I. N. Shroff, for the appellant

Vitkalbhai Patel, 8. 8. Bbulcla, 0. T. Daru and E. Udayarathnam, for the respondent No. I.

1960. December 12. The Judgment of the Court was delivered by