Anjuman I. Islam Vs. Ashraf Ali Choudhary and ors. - Court Judgment

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labour and industrial - pay scale - section 33c (2) of industrial disputes act, 1947 - respondent-employee worked in secretariat run by appellant - respondent claimed pay scale as recommended by bhole pay commission - labour court ordered in favour of respondent - appeal before high court - appellant paying to respondent salary and allowances as per scales laid down by badkas pay commission and as revised from time to time as laid down in government resolution and notifications on basis of resolution of finance committee of appellant - scales of budkas pay commission replaced by bhole pay commission - scales laid down by bhole pay commission should apply to respondent. - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - on 6th november 1971 a meeting was held by the finance committee of the appellant which discussed the payment to the staff of the appellant's secretariat salary as recommended by the badkas pay commission, which had been notified by the state government on 30th august, 1969. it was resolved that 'the staff of the anjuman secretariat be paid as per scales laid down by badkas commission as well as allowances announced by the education department from time to time'.a further resolution was passed by the finance committee on 26thnovember 1973 in regard to the request of the staff of the secretariat for payment of arrears of increase in dearness allowance with effect from 1st september 1972 as sanctioned by the government for staff of the secondary schools. it was resolved that 'in future whenever an increase in dearness allowances was announced by the education department the same should automatically be made applicable to all such members of the staff but only from the dale of announcement'.on 29th april 1978 there was a notification of the scales recommended by the bhole pay commission. the appellant disputed the claim and contended that its secretariat had nothing to do with schools and colleges and such other educational institutions and hence the pay scales and other benefits recommended by the bhole pay commission and adopted by the government were not applicable to the secretariat. the resolution dated 6th november 1971 states that 'the staff of the anjuman secretariat be paid as per scales laid down by badkas commission as well as allowances announced by the education department from time to time. ' it is possible to interpret this resolution as meaning that the staff of the secretariat would be paid scales as well as allowances announced by the education department from time to time and to treat the words 'laid down by badkas commission' as being descriptive for the time being of such scales.bharucha, j.1. the appeal is preferred against the order of the single judge dismissing the appellant's writ petition.2. the appellant runs a number of schools, colleges and other educational charitable organisations. for the purposes of its management thereof it also runs a secretariat. the 1st respondent was appointed as an accounts clerk in the secretariat on 2nd january, 1965. he was then promoted and given scale of pay accordingly, with which we arc not really concerned. on 6th november 1971 a meeting was held by the finance committee of the appellant which discussed the payment to the staff of the appellant's secretariat salary as recommended by the badkas pay commission, which had been notified by the state government on 30th august, 1969. it was resolved that 'the staff of the anjuman secretariat be paid as per scales laid down by badkas commission as well as allowances announced by the education department from time to time'. a further resolution was passed by the finance committee on 26thnovember 1973 in regard to the request of the staff of the secretariat for payment of arrears of increase in dearness allowance with effect from 1st september 1972 as sanctioned by the government for staff of the secondary schools. it was resolved that 'in future whenever an increase in dearness allowances was announced by the education department the same should automatically be made applicable to all such members of the staff but only from the dale of announcement'. on 29th april 1978 there was a notification of the scales recommended by the bhole pay commission. which replaced those of the badkas pay commission. what is relevant to note is that the scale of rs. 300-20-460-75-510 (which was being drawn on 1st april 1977 by the 1st respondent) became by virtue of the bhole pay commission's report, the scale of rs. 600-30-750-40-950.3. on 9th january 1980 the 1st respondent made an application to the labour court under the provisions of section 33-c(2) of the industrial disputes act and prayed that he should be paid his salary according to the recommendations of the bhole pay commission. the appellant disputed the claim and contended that its secretariat had nothing to do with schools and colleges and such other educational institutions and hence the pay scales and other benefits recommended by the bhole pay commission and adopted by the government were not applicable to the secretariat. evidence was led before the labour court. the labour court came to the conclusion that the claim of the 1st respondent was justified but could not be allowed as claimed from 1st april 1976 having regard to the resolution of the finance committee of the appellants dated 26th november 1973. the labour court directed the appellant to pay to the 1 st respondent his dues, giving benefit to him of the bhole pay commission recommendations, with effect from 29th april 1978. the appellant was directed to prepare a statement in this behalf and to file it before the commissioner of labour, bombay, and to make payment accordingly, failing which the appellant would be liable to pay on the basis of the statement prepared and produced before the commissioner of labour by the 1st respondent.4. the appellant preferred the writ petition to impugn the order of the labour court. the learned single judge took the view that the labour court had rightly come to the conclusion that the recommendations of the bhole pay commission were impliedly extended to employees working in the secretariat of the appellant. this was not a case of mere implication but a positive assertion in the resolutions of the appellant's finance committee dated 26th november 1973. at any rate, the inference drawn by the labour court in this regard was not perverse or unreasonable so that the writ court should interfere with its findings. the learned judge felt that it was in the interest of all concerned that the question of the quantum to be paid by the appellant to the 1st respondent should be settled before him. having regard to the fact that the appellant had not filed a statement though asked for by the learned judge, he accepted the statement filed on behalf of the 1st respondent and directed the appellant to pay to the 1st respondent the sum of rs. 15,835,75. he also directed the appellant to pay to the 1st respondent the costs of the petition quantified at rs. 3,000/-.5. it is urged with great vehemence by mr. ramaswami, learned counsel for the appellant, that the orders of the labour court and of the learned judge were perverse. in our view, the interpretation placed by the labour court and the learned judge upon the resolution of the finance committee of the appellant are reasonable and not such as to invite the interference of the writ court or in appeal therefrom. the resolution dated 6th november 1971 states that 'the staff of the anjuman secretariat be paid as per scales laid down by badkas commission as well as allowances announced by the education department from time to time.' it is possible to interpret this resolution as meaning that the staff of the secretariat would be paid scales as well as allowances announced by the education department from time to time and to treat the words 'laid down by badkas commission' as being descriptive for the time being of such scales. further, it is clear from the record that the appellant was paying to the 1st respondent salary and allowances as per scales laid down by the badkas pay commission and as revised from time to time as laid down in government resolution and notifications. it was, therefore, a legitimate conclusion, to draw that the scales laid down by the bhole pay commission should also apply to the appellant.the pay scale of rs. 320-20-460-75-510 under the badkas pay commission report was revised to rs. 600-30-750-40-950 by the bhole pay commission report. the 1st respondent, therefore, became entitled to receive the same. that under the bhole pay commission report this was the scale given only to headmasters as mr. ramaswami contended, is in the circumstances, not relevant.the appeal is, therefore, dismissed and the order under appeal confirmed. the appellant shall pay to the 1st respondent the costs of the appeal.