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Santuram Khudai Vs. Kimatrai Printers & Processors (P) Ltd. & Ors [1977] INSC 234 (9 December 1977)

SINGH, JASWANT SINGH, JASWANT UNTWALIA, N.L.

CITATION: 1978 AIR 202 1978 SCR (2) 387 1978 SCC (1) 162

CITATOR INFO :

R 1985 SC 311 (22)

ACT:

Bombay Industrial Relations Act, 1946 (Bombay Act No. XI of 1947), s. 80 r/w s 27A, scope of-Right of the individual employee to appear or act in a proceeding under the 1946 Act, where a representative union has entered appearance as the representative of the employees.

HEADNOTE:

Respondent No. 1 is an undertaking in the Textile Processing Industry which was recognised as such under the Bombay Industrial Relations Act. Respondent No. 2 namely, the General Workers' Union, Bhadra, Ahmadabad is a representative union of all the employees of the various undertakings registered by the Registrar as undertakings in the Textile Processing Industry in the local area of Ahmadabad city and city Taluka irrespective of the fact that the employees of any of the aforesaid undertakings may or may not be members of the representative union and is registered and recognised as such under the provisions of the Act. An industrial reference No. 176/1976 was made to the Industrial Court at Ahmadabad on 27-7-76 as respondent No. 1 did not agree to a desire of respondent No. 2 for a change in respect of classification, pay scales, dearness allowance, casual leaves, festival holidays and certain other industrial matters. In May, 1976 a new rival union was formed under the name and style of "New Labour General Trade Union, Ahmadabad" which was registered under the Trade Unions Act on June 3, 1976. This new Union by its letter dated June 8, 1976, raised certain demands regarding issue of permanent entry passes, casual leave, festival holidays, provident fund, Employees State Insurance Scheme, bonus, dearness allowance which were not heeded to by respondent No. 1 on the ground that the Union could not be treated as a representative union under the Act. Since every effort of theirs failed to elicit any response from respondent No. 1, the New Union gave a strike notice on September 2, 1976.

Pursuant thereto 131 employees of respondent No. 1 went on strike on September 24, 1976, whereupon an application No.

1455/76. was made on the following day, by respondent No. 1 to the Third Labour Court at Ahmadabad u/s. 79(1) and (4) r/w ss. 78(1)(A)(C) and 97(1) of the Act for a declaration that the action of the workers mentioned in Annexures 'A' and 'B' to the application amounted to an illegal strike.

In the said proceedings respondent No. 2 appeared as the representative and approved union for the processing industry in the local area where the mills of respondent No.

1 are situate and filed written statement admitting that the strike resorted to by the workmen was illegal. On October 4, 1976, the appellant and five other employees of respondent No. 1 made an application to the said Labour Court for impleading them as parties to the aforesaid proceedings No. 1455/76 and allowing them to appear and defend the same. On the same day, the appellant and 15 other employees of respondent No. 1 requested the Labour Court to declare the strike as legal. The aforesaid application for being impleaded as parties was rejected by the Labour Court, as per its order dated 6-10-76. On 12-1076, the Labour Court allowed the application No. 1455 of 1976 of respondent No. 1 u/s. 79(1) and (4) read with ss. 78 (1 ) (A) (C) and 97 (1 ) of the Act and declared that the employees mentioned in Annexures 'A' and 'B' to the application resorted to an illegal strike w.e.f. 24-9-1976 the continuation whereof was also illegal as it had been resorted to during the pendency of the reference No. 176 of 1976, wherein as a result of negotiations, an interim settlement was arrived at on November 17, 1977. A special Civil Application No. 1845/76 filed by the appellants under Art. 227 of the Constitution for quashing the two orders of the Labour Court dated 6-10-76 and 12-10-76 was dismissed in limine by the Gujarat High Court.

Dismissing the appeal by special leave, the Court, 12-1114SCI/77 388

HELD : (1) The legislative intent underlying the scheme of the Bombay Industrial Relations Act being to inculcate and encourage the practice of collective bargaining so that the labour is neither exploited nor victimised and industrial peace and harmony is ensured, the provisions of the Act are designed to emphasize that if labour in an industry is organised through its own union which is registered and recognised under the Act, then it is that union which can appear and do all acts and agitate matters in its representative capacity for the labour and if it does choose to appear or act, then no individual employee is competent to appear and present his point of view. [392 B-C] (2)Section 80 of the Act makes it clear that the Labour Court can permit the parties affected by the dispute to appear in the manner provided by ss. 80A to 80C of the Act, but the discretion conferred on the Labour Court has specifically been made subject to the provisions of Chapter V which deals with "representation of employees and employers and appearance on their behalf". [392 E-F] (3)Section 27A of the Act consists of two parts. While the second part contains the general rule prohibiting the grant of permission to an individual employee to appear or act in any proceeding under the Act except through the representative of the employees, the first part carves out three exceptions to the said general rule which are mentioned in s. 32, 33 and 33A of the Act. Whereas the last exception, that is, the one carved out by s. 33-A of the Act relates to proceedings where the dispute is between employers and employees, the other two exceptions mentioned in ss. 32 and 33 of the Act relate to proceedings in respect of certain other disputes. Sections 32 and 33 of the Act, no doubt, engraft exceptions on the aforesaid general rule embodied in s. 27A of the Act, the provisos appended thereto specifically preclude individual employees from appearing or acting in any proceeding under the Act where the representative union enters appearance or acts as the representative of employees. [392 G-H, 393 A-F] Girja Shankar Kashi Ram v. The Gujrat Spinning and Weaving Co. Ltd [1962] 2 Supp. SCR 890 [1962] 2 L.L.J. 369 (S.C.) and Textile Labour Association, Bhadra Ahmadabad v.

Ahmadabad Mill Owners Association, Ahmadabad (1970)3 SCC 890 at p. 891, followed.

(4)Mala fides or bona fides of a representative union has no relevance while considering the provisions of s. 27-A and ss. 32 and 33 of the Act which taken together impose an absolute ban on the appearance of any individual employee in any proceeding under the Act where the representation union chooses to appear or act as representative of the employees.

In case the employees find that the representative union is acting in a manner which is prejudicial to their interest, their remedy lies in invoking the aid of the Registrar under Chapter III of the Act and asking him to cancel the registration of the union. [395 A-C] Girja Shankar Kashi Ram v. The Gujarat' S inning & Weaving Co. Ltd. [1962] 2 Supp. SCR 890=(1962) 2 L.L.J. 369(S.C), applied.

N. M. Naik v. Golaba Land Mills (1960) L.I.J. 448, overruled.

(5)A combined reading of ss. 80, 27A, 30, 32 and 33 of the Act leaves no room for doubt that consistent with its avowed policy of preventing the exploitation of the workers and augmenting their bargaining power, the Legislature has clothed the representative union with plenary power to appear or act on behalf of employees in any proceeding under the Act and has deprived the individual employee or workman of the right to appear or act, in any proceeding under the Act where the representative union enters appearance or acts ,is representative of employees. [383 B-C] Girja Shankar Kashi Ram v. The Gujarat Spinning & Weaving Co. Ltd. [1962] 2 Supp. SCR 890=(1962) 2 L.L.J. 369 (S.C.), applied.

(6)In the instant case (a) neither the appellant nor his other co-employees had any locus standi to appear or act as individual employees in the proceedings initiated by respondent No. 1 in which respondent No. 2 which is a representative union in the industry in the local area had the right to appear and act as the representative of the employees in the industry and did appear or act as such;

[395 G-H] 389 (b)The new union to which the appellant and some of his co-employees belonged would have no right to appear or act on behalf of the appellant or his co-employees in the proceedings initiated by respondent No. 1 as it had not been registered and recognised as the representative union of employees under the Act. [396 A] [In view of the abstention of the parties from addressing the court regarding the legality or otherwise of the strike, the court refrained from making any observation in regard thereto.]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 21 11 of 1977.

Appeal by Special Leave, from the Judgment and Order dated 16-11-76 of the, Gujarat High Court in Special Civil Application No. 1 845 of 1976.

B. Datta and K. Kumar for the Appellant.

Y. S. Chithey, V. N. Ganpule, Mukul Mudgal, M. R. Gehani and Mrs. V. D. Khanna for Respondent No. 1.

V. M. Tarkunde, K. L. Hathi and P. C. Kapur for Respondent No. The Judgment of the Court was delivered by JASWANT SINGH, J. This appeal by special leave which is directed against the order dated November 16, 1976 of the High Court of Gujarat at Ahmadabad summarily dismissing Special Civil Application No. 1845% of 1976 filed by the appellant and another under Article 227 of the Constitution raises an interesting question regarding the right of individual employees to appear or act in a proceeding under the Bombay Industrial Relations Act, 1946 (Bombay Act No. XI of 1947) (herein,after referred to as 'the Act') where a representative union has entered ,appearance as the representative of the employees.

The facts and circumstances giving rise to this appeal, in brief, are Respondent No. 1 herein viz. The, Kimatrai Printers and Processors Pvt. Ltd. Ahmadabad is an undertaking in the Textile Processing Industry which was recognised as such vide Notification No. KH-SHMC/ 2724/RU dated September 13, 1974 issued by the Assistant Registrar, Bombay Industrial Relations Act in exercise of the powers conferred on him under section 11(1) of the Act. Respondent No. 2 viz. the General Workers Union, Bhadra, Ahmadabad is a representative union of all the employees of the various undertakings registered by the Registrar ,as undertakings in the Textile Processing Industry in the local area of Ahmadabad City and city Taluka irrespective of the fact that the employees of any of the aforesaid undertakings may or may not be members of the representative union and is registered and recognised as such ,under the provisions of the Act. In 1975, the said union raised demands regarding wages dearness allowance, washing allowance, supply of shoes, uniforms, and casual, holidays. As the demands were not agreed to, the dispute was taken in conciliation which culminated in an amicable settlement between the parties on the basis whereof an award was made by the Industrial Court on September 29, 1975. On December 22, 1975, respondent No. 2 gave a notice under subsection (2) of section 42 of the Act intimating thereby its desire for a change 390 in respect of classification, pay scales, dearness allowance, casual leave, festival holidays and certain other industrial matters. The notice was followed by two other notices dated March 22, 1976 and March 27, 1976under the same provision of the Act.

The dispute not having been settled by the parties amicably, the same was taken in conciliation which failed.

Consequently on July 27, 1976, a reference being Reference No. 176 of 1976, was made to the Industrial Court at Ahmadabad under section 73-A of the Act, wherein as a result of negotiations, an interim settlement appears to have been arrived at on November 17, 1977. Meanwhile, the workers of respondent No. 1 struck work with effect from September 24, 1976 whereupon an application being application No. 1455 of 1976 was made an the following day by the respondent to the Third Labour Court at Ahmadabad under section 79(1) & (4) read with section 78(1) A (C) and section 97(1) of the Act for a declaration that the aforesaid action of. the workers mentioned in Annexures 'X and 'B' to the application amounted to an illegal strike. A public notice regarding the filing of this application was given in 'Gujarat Samachar' on September 27, 1976 and a copy thereof was also affixed on the notice board of respondent No. 1. In the proceedings taken upon the said application of respondent No. 1, respondent No,. 2 appeared as the representative and approved union for the processing industry in the local area where the mills of respondent No. 1are situate, and filed written statement admitting that the, strike resorted, to by the, workmen was illegal. Without meaning to burden the record unnecessarily but with a view to complete the narrative, it may be stated that in May, 1976, a new union of workers employed in the concern of respondent No. 1 was formed under the name and style of 'New Labour General Trade Union' Ahmadabad which was registered under the Trade Unions Act on June 3, 1976. Vide its letter dated June 8, 1976, the new union raised demands regarding issue of permanent entry passes, casual leave, festival holidays, provident fund, Employees State Insurance, Bonus, Dearness Allowance etc. which were not heeded to by respondent No. 1 on the ground that the union could not be treated as a representative union under the Act. The reminders sent by the new union on June 21, 1976, June 29, 1976 and July 2, 1976 were also ignored by respondent No. 1. On July 6, 1976, the new union suggested a few names of its members to respondents No,. 1 for the purposes of negotiation and requested it to fix a date for that purpose before July 10, 1976. As the attempt at negotiation also failed to evoke a favourable response from respondent No. 1, the new union made a representation to Labour Commissioner on July 10, 1976. A further representation made by the workmen to the Management of respondent No. 1 on August 15, 1976 which was followed by representations to the Governor of Gujarat on August 18, 1976 and August 25. 1976 also failed to elicit any response from respondent No. 1. Thereupon, the, new union gave a strike notice on September 2, 1976 pursuant thereto 131 employees of respondent No. 1 went on strike on September On October 4, 1976, the appellant and five other employees of respondent No. 1 made an application to the Labour Court praying that they may be impleaded as parties to the aforesaid proceedings 391 initiated by respondent No. 1 and allowed to appear and defend the same. By means of another application of the even date, the appellant and fifteen other employees of the respondent requested the, Labour Court to declare the strike as legal. The former application was rejected by the, Labour Court vide order dated October 6, 1976. On October 12, 1976, the Labour Court allowed the aforesaid application of respondent No. 1 under section 79(1) & (4) read with section 78(1) A (C) and section 97(1) of the Act and declared that the employees mentioned in Annexures 'A' and 'B' to the application resorted to an illegal strike with effect from September 24, 1976 and the continuation thereof was also illegal as it had been resorted to during the pendency of the aforesaid Reference No. 176 of 1976.

Aggrieved by these orders, the appellant and Kamalgiri, two of the aforesaid six employees, filed, as already stated, Special Civil Application No. 1845 of 1976 in the High Court of Gujarat at Ahmadabad under Article 227 of the Constitution praying that the aforesaid orders dated October 6, 1976 and October 12, 1976 passed by the Labour Court be quashed. They also asked for a declaration that the strike resorted to by the employees of respondent No. 1 pursuant to the, aforesaid notice of strike given by their new union was just, proper and legal and that the employees who resorted to the strike continued to be in service of respondent No. 1 without any break or interruption. The said employees further prayed that respondent No. 1 be directed to award full wages to the employees who went on strike. for the period commencing from September 24, 1976 (when they initially went on strike) to the date, of resumption of work by them. Vide its order dated November 16, 1976, the High Court summarily dismissed the petition and declined to, give leave to appeal to this Court. The appellant thereupon made an application to. this Court for Special Leave which was granted. This is how the matter is before us.

Appearing on behalf of the appellant, Mr. B. Dutta has contended that the order of the High Court dated November 16, 1976 dismissing in limine the aforesaid petition No. 1845 of 1976 submitted by the appellant and his co-employee, Kamalgiri, under Article 227 of the Constitution thereby upholding the aforesaid orders of the Labour Court and dismissing the application of the appellant and his five coemployees for being impleaded as parties to the aforesaid application of respondent No. 1 under section 79(1) & (4) read with section 78(1) A (C) and section 97(1) of the Act is erroneous and cannot be sustained on a true interpretation of section 80 of the Act which confers a right on every individual employee to appear before the Labour Court and contest on application under section 79 of the Act which may threaten to adversely affect his rights and interests. Mr. Dutta has also urged that the application could not have been rejected in view of the two exceptions engrafted on section 27 of the Act.' Mr. Dutta has finally urged that in any event, the application ought to have been allowed and the individual employees permitted to appear and contest the aforesaid application of respondent No. 1 as the stand taken by the representative union in' regard thereto was mala fide and, against their interests.

392 that it was respondent No. 2 alone, which was the representative union, and not the appellant or any other individual employee who had a right to appear and act in the aforesaid proceedings initiated by respondent No. 1 before the Labour Court.

For a proper appreciation of the rival contentions advanced by counsel for the parties, it is necessary to refer to section 80 and other relevant provisions of the Act. Before doing so, it is necessary to bear, in mind that the legislative intent underlying the scheme of the Act being to inculcate and encourage the practice of collective bargaining so that the labour is neither exploited nor victimized and industrial peace and harmony is ensured, the provisions of the Act are designed to emphasize that if labour in an industry is organised through its own union which is registered and recognised under the Act, then it is that union which can appear and do all acts and agitate matters in its representative capacity for the labour and if it does choose to appear or act then no individual employee is competent to appear and present his point of view. With these prefatory observations, we proceed to advert to the relevant provisions of the Act.

Section 80 of the Act provides : "con receipt of an application under section 79, the Labour Court shall issue a notice to all parties. affected by the dispute, in the manner provided by rules under section 85. Subject to the provisions of Chapter V, the Labour Court may permit the parties so affected to appear in the manner provided by the provisions of sections 80A to 80-C. The Labour Court shall then hold an inquiry".

A plain reading of the above section which was substituted for the original section 80 by the Bombay Act 49 of 1955 makes it clear that the Labour Court can permit the parties affected by the dispute to appear in the manner provided by sections 80-A to 80-C of the Act but the discretion conferred on the Labour Court has specifically been made subject to the provisions of Chapter-V which deals with "representation of employees and employers and appearance on their behalf" and contains amongst other provisions section 27-A which is in the following terms :"27-A. Save as provided in sections. 32, 33, and 33-A, no employee shall be allowed to appear or act in any proceeding under this Act except through the representative of employees".

This section, it would be noted, consists of two Parts.

While the second part contains the general rule prohibiting the grant of permission to an individual employee to appear or act in any proceeding under the Act except through the representative, of employees, the first part carves out three exceptions to the said general rule which are mentioned in sections 32, 33 and 33-A of the Act. Whereas the last exception i.e. the one carved out by section 33-A of the Act relates to proceedings where the dispute is between employers and employees, the other two exceptions mentioned in sections 32 and 33 of the Act relate to proceedings in respect of certain other disputes.

393 The term 'representative of employees' as used in the above quoted section 27-A of the Act is defined in section 3 (32) of the Act as meaning "a representative of employees entitled to appear or act as such under section 30." This takes us to section 30 of the Act. This section which sets out in preferential order the persons who are entitled to appear or act as representatives of employees in any industry in local area assigns the foremost position to the representative union.

Now a combined reading of sections 80, 27-A, 30, 32 and 33 of the Act leaves no room for doubt that consistent with its avowed policy of preventing the exploitation of the workers and augmenting their bargaining power, the Legislature has clothed the representative union with plenary power to appear or act on behalf of the employees in any proceedings under the Act,and has deprived the individual employees or workmen of the right to appear or act in any proceeding under the Act where the representative union enters appearance or acts as representative of employees. We are fortifid in this view by a decision of this Court in Girja Shankar Kashi Ram v. The Gujarat Spinning & Weaving Co. Ltd.(1) where Wanchoo, J. (as he then was) speaking for the Court observed as follows "It will be seen that s. 27-A provides that no employee shall be allowed to appear or act in any proceeding under the Act, except through the representative of employees, the only exception to this being the provisions of ss.

32 and 33. Therefore, this section completely bans the appearance of an employee or of any one on his behalf in any proceeding after it has once commenced except through the representative of employees. The only exceptions to this complete ban are to be found in sections 32 and 33.

The first contention advanced by Mr. Dutta is, therefore, overruled.

The second contention raised by Mr. Dutta is also devoid of substance. Sections 32 and 33 of the Act no doubt engraft exceptions on the aforesaid general rule embodied in section 27-A of the Act but they are not helpful to the appellant as the provisos appended thereto specifically preclude individual employees from appearing or acting in any proceeding under-the Act where the representative union enters appearance or acts as the representative of employees. It will be advantageous in this connection to refer to the following passage occurring in the decision of this Court in Girja Shankar Kashi Ram V. The Gujarat Spinning & Weaving Co. Ltd. (supra), where Wanchoo, "The result therefore of taking ss. 27-A, 32 and 33 together is that s. 27A first places a complete ban on the appearance of an employee in proceedings under the Act once it has commenced except through the representative of employees. But there are two exceptions to this ban contained in ss. 32 and 33. Section 32 is concerned with all proceedings before the authorities and gives power to the (1) 11962] 2 Supp. S.C.R. 890 : 1196 (2) 2 L.L.J. 369 (S.C).

394 authorities under the Act to permit an employee himself to appear even though a representative of employees may have appeared but this permission cannot be granted where the representative union has appeared as a representative of employees. Section 33 which is the other exception allows an employee to appear through any person in certain proceedings only even though a representative of employees might have appeared; but here again it is subject to this that no one else, not even the employee who might have made the application, will have the right to appear if a Representative Union has put in appearance as the representative of employees. It is quite clear therefore that the scheme of the Act is that where a Representative Union appears in any proceeding under the Act, no one else can be allowed to appear not even the employee at whose instance the proceedings might have begun under s. 42(4). But where the appearance is by any representative of employees other than a Representative Union authorities under s. 32 can permit the employee to appear himself in all proceedings before them and further the employee is entitled to appear by any person in certain proceedings specified in s. 33. But whenever the Representative Union has made an appearance, even the employee cannot appear many proceeding under the Act and the representation must be confined only to the Representative Union. The complete ban therefore laid by s. 27A on representation otherwise than through a representative of employees remains complete where the representative of employees is the Representative Union that has appeared; but if the representative of employees that has appeared, is other than the Representative Union then ss. 32 and 33 provide for exceptions with which we have already dealt. There can therefore be no escape from the conclusion that the Act plainly intends that where the Representative Union appears in any proceeding under the Act even though that proceeding might have commenced by an employee under s.

42(4) of the Act, the Representative Union alone can represent the employee and the employee cannot appear or act in such proceeding." The following observation made by Hidayatullah, C.J. in Textile Laboour Association, Bhadra Ahmadabad v. Ahmadabad Mill Owners Association, Ahmadabad(1) is also, pertinent :"Reading these two sections (ss. 32 and 33 of the Act), we find that it is quite clearly stated in the provisos to the two sections that no individual is allowed to appear in any proceeding in which the representative Union has appeared as the representative of the employees.

The second contention raised by Mr. Dutta is also, therefore, repelled.

The last contention of Mr. Dutta that in view of the fact that while appearing as the representative union in respondent No. 1's aforesaid (1) [1970] 3 S.C.C. 890-91.

395 application No. 1455 of 1976, respondent No. 2 was not acting for and on behalf of the employees but was acting mala fide and against their interests, the appellant and his five other co-employees should have been allowed to be added as parties to the application and permitted to appear and act therein has also no force. It has to be remembered that malafides or bonafides of a representative union has no relevance while considering the provisions of section 27-A and sections 32 and 33 of the Act which taken together impose an absolute ban on the appearance of any individual employee in any proceeding under the Act where the representative union chooses to appear act as representative of the employees. In case, the employees find that the representative union is acting in a manner which is prejudicial to their interests, their remedy lies in invoking the aid of the Registrar under Chapter III of the Act and asking him to cancel the registration of the union.

The following observations made in Girja Shankar Kashi Ram v. The Gujarat Spinning & Weaving Co. Ltd. (supra) are apposite in this connection :"But it is clear that bona fides or mala fides of the representative of employees can have nothing to do with the ban placed by s. 27A on the appearance of anyone else except the representative of employees, as defined in s. 30 and that if anyone else can appear in any proceeding we must find a provision in that behalf in either s. 32 or s. 33, which are the only exceptions to s. 27A. It may be noticed that there is no exception in s. 27A in favour of the employee, who might have made an application under s. 42(4), to appear on his own behalf and the ban which is placed by s.27A will apply equally to such an employee.

In order however to so en the rigour of the provisions of s. 27A, for it may well be that the representative of employees may not choose to appear in many proceedings started by an employee under S. 42(4), exceptions are provided in ss. 32 and 33. The scheme of these three provisions clearly is that if the Representative Union appears, no one else can appear and carry on a proceeding, even if it be begun on an application under s. 42(4) but where the Representative Union does not choose to appear there are provisions in ss. 32 and 33 which permit others to appear in proceedings under the Act." In view of the above quoted categoric and unequivocal observations, the contrary observations made in N. M. Naik v. Colaba Land Mills(1) on which strong reliance has been placed by Mr. Dutta must be treated as overruled.

We have, therefore, no hesitation in agreeing with the view expressed by the Labour Court and the High Court and holding that neither the appellant nor his other co-employees had any locus standi to appear or act as individual employees in the aforesaid proceedings initiated by respondent No. 1 in which respondent No. 2 which is the representative union in the industry in the local area bad the right to (1) [1960] 1 L.L.J. 440.

396 appear and act as the representative of the employees in the industry and did appear or act as such. We may observe here in passing that even new union to which the appellant and some of his co-employee& belonged would have no right to appear or act on behalf of the appellant or his co-employees in the aforesaid proceeding initiated by respondent No. 1 as it had not been registered and recognised as the.

representative union of employees under the Act.

In conclusion, we wish to make it clear that as learned counsel for the parties have abstained from addressing us regarding the legality or otherwise of the aforesaid strike in view of the fact that it was not open to the appellant to agitate that question because the Labour Court had refused to add him as a party to respondent No. 1's aforesaid application No. 1455 of 1976, we have refrained from making any observation in regard thereto.

In the result, the appeal fails and is hereby dismissed but in them circumstances of the case without any order as to costs.

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