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Indeed, preliminary to the appraisal operation, the intermediary receives a notice in Form 'D' (rule 13) and he is expected to furnish a return of the relevant particulars and supporting information to enable correct appraisement Ratio |
In the present case, the appellant did submit the 'D' return to the Compensation Officer and adduced some evidence to substantiate it Ratio |
The Compensation Officer passed an order adverse to the appellant, where upon he filed an appeal to the Collector which was rejected FAC |
A Second Appeal followed before the Board of Revenue which was dismissed FAC |
Later, revision petition were filed before the High Court and G. K. Misra J., set aside the order disallowing the inclusion of the income from forests for ascertainment of compensation and directed a remand to the Compensation Officer FAC |
The said order (the relevant portion of which we are concerned) runs thus:- "He would immediately call upon the Divisional Forest Officer to make appraisement within three months from the receipt of the record FAC |
The appraisement can be scientifically done by looking to the age of the trees as they stand now FAC |
It is open to the petitioners to give evidence that after the date of vesting many of the trees and forest produce have been removed FAC |
Besides the evidence already on record would be taken into consideration FAC |
The Divisional Forest Officer who would make the appraisement will be examined as a witness for the Compensation Officer and would be subjected to cross-examination FAC |
No other evidence would be permissible as the State has not chosen to give any other evidence FAC |
Under Rule 13(1-c) of the Orissa Estates Abolition Rules, 1952 the compensation officer may rely upon such other materials as may otherwise be ascertained by him FAC |
But in such a case the materials must be brought to the notice of the petitioners who would be entitled to cross-examine the witnesses connected therewith and may give rebutting evidence FAC |
The compensation case is to be disposed of by the compensation officer within six months from today (104-1969) with intimation to this Court FAC |
Strictly speaking, the statutory requirement is for initial appraisal of the annual income by the Forest Officer Ratio |
The use of the expression 'Divisional Forest Officers is erroneous although Forest Officers are appointed from among Divisional Forest Officers Ratio |
Equally clearly, a slight error has crept into the Judge's order because he does not make any reference specifically to the statutory requirement of approval of the Chief Conservator of Forests of the appraisement made by the Forest Officer Ratio |
However, what followed is interesting though erroneous Ratio |
The District Forest Officer (who, incidentally, happens to be a Forest Officer under the Act, having been appointed as required thereunder) made his appraisal of the annual income and submitted to the Chief Conservator who altered the annual yield and reduced it substantially FAC |
But he pointed out that the Forest Officer had omitted to include the income from kendu leaves and added that sum to the income from forests FAC |
Even so, the total figure was less than what the Divisional Forest Officer had recommended FAC |
The Compensation officer accepted the report of the Chief Conservator and made the statutory calculation on that date FAC |
Both the State and the appellant filed appeals to the Collector which were dismissed FAC |
A second appeal was filed by the appellant before the Board of Revenue without success FAC |
Then followed three revision petitions to the High Court which led to the order of remand now attacked before us in the present appeals FAC |
From this narrative, what follows is that the Chief Conservator had substituted his appraisement which was accepted by the statutory tribunal FAC |
Indeed, there was a fundamental difference in the basis adopted by the Forest Officer and the Chief Conservator in the matter of assessing the income of the forests in question Ratio |
We need not go into this detail except for the purpose of noticing that what the Chief Conservator did was not to approve wholly or in a modified form what the Forest Officer did but to make his own appraisal independently and without reference to the report of the statutory functionary, viz., the Forest Officer Ratio |
This was wrong and contrary to s. 26, as was contended by the appellant and in a way accepted by the High Court Ratio |
We are in agreement with the course adopted by the High Court and the reasoning which has prevailed with it RPC |
The direction given by the learned Judge in the remand order is correct although it may require a little clarification RPC |
Having heard the appellant at some length, we see no flaw in the High Court's order on this aspect of the matter Ratio |
It is astonishing that anyone should urge, as the appellant did, that the date of vesting is the last date by which the calculation of compensation should have been made and since that had not been done, the Compensation Officer had become functus officio in awarding compensation Ratio |
Before the date of vesting the State never can, nor does, fix the compensation through the Compensation officer in any of the agrarian reform laws, and these compensation operations are post statutory exercises Ratio |
Therefore there is no substance in the functus officio argument Ratio |
If the officer had no jurisdiction, the land would be gone because of the vesting provision and no compensation would be forthcoming for want of jurisdiction-a consequence the appellant never wants Ratio |
Technicality can be frightened away by technicality Ratio |
Nor is it right to contend, as the appellant did, that the Compensation Officer's jurisdiction was created by the order of remand by the High Court Ratio |
No, it was created by the statute and canalised by the order of remand Ratio |
It follows that, after the present second remand, the re-appraisal of the annual net income cannot be done solely by the Forest Officer without securing the approval of the Chief Conservator Ratio |
Nor can the Compensation Officer by-pass the Chief Conservator on the misunderstood strength of the High Court's first order of remand Ratio |
The true legal drill is Ratio |
and this holds good after the second remand order-that the Forest officer will do the appraisement of the annual income, forward his report to the Chief Conservator of Forests who will take the said report into consideration and, if necessary, make modifications therein or approve it with such changes as he deems fit R... |
Certainly the Chief Conservator cannot be ignored by the Compensation Officer nor can the Chief Conservator ignore the assessment made by the Forest Officer and go through an independent exercise Ratio |
The integrated process has already been explained by us and will be followed in the proceedings to ensue on remand Ratio |
We may make it clear that now that a Forest officer has made an appraisement, the Chief Conservator of Forests will apply his mind to it and approve it as a whole or with such modifications as he thinks necessary and forward it to the Compensation Officer Ratio |
This will, among other things, save time Ratio |
Thereafter, the appropriate statutory course will follow Ratio |
Substantially, this is what has been done by the learned Judge when allowing the revisions and remitting the case back to the Compensation Officer Ratio |
The take-over of the forests of the appellant was effected as early as 1960 and 16 years have passed without the intermediary being out of the litigative woods Ratio |
The High Court has stated that a large part of the delay has been 'due to laches committed from time to time by the Officers who have been charged with the duty to calculate the compensation Ratio |
It is again due to mistakes committed by the authorities concerned that the matter is being remitted back to the Compensation Officer for disposal Ratio |
The force of these observations constrains us to direct that the proceedings before the Compensation Officer shall be completed within six months from today RPC |
In this context, it is perhaps not irrelevant to remember that the appellant, a freedom-fighter, is an 83-year-old man and, at this stage of his life, the State should show commisseration not merely in quickly disposing of the proceedings but also in not being cantankerous in awarding and disbursing the balance compens... |
With these directions and observations we affirm the orders under appeal but, while dismissing the appeals, direct the parties to bear their costs in this Court RPC |
This appeal by special leave which is directed against the judgment and order dated April 24,1974 of the Letters Patent Bench of the High Court of Judicature at Madras reversing the judgment and order dated April 19,1971 of the Single Judge of that Court passed in writ petition No.3822 of 1969 presented u/art.226 of th... |
Act LIII of 1961) (hereinafter referred to as 'the Act') which in view of s.2(1) of the Act is the law applicable even to women workers employed in plantations FAC |
It appears that in October,1967,Subbammal,respondent No.2 herein,who is a woman worker employed in Mount Stuart Estate (hereinafter referred to as 'the establishment'),which is carrying on plantation industry,was allowed leave of absence by the establishment on the basis of a notice given by her of her expected deliver... |
While calculating the aforesaid amount of maternity benefit,the establishment admittedly excluded twelve Sundays being wageless holidays,which fell during the period of the respondent's actual absence immediately preceding and including the day of her delivery and the six weeks immediately following that day FAC |
Dissatisfied with this computation,the respondent made a representation to her employers claiming maternity benefit for the entire period of twelve weeks under the Act.i.e.for 84 days on the plea that a week consisted of seven days FAC |
As her demand did not evoke a favourable response,the respondent applied to the Labour Court,Coimbatore,under section 33C(2) of the Industrial Disputes Act for redress of her grievance FAC |
The claim preferred by the respondent was resisted by the appellant herein who contended that the respondent was admittedly working and was being paid only for six days in a week and that a pregnant woman worker is entitled to maternity benefit for 72 days which are the normal working days in twelve weeks and not for 8... |
Sunday,which is a nonworking wageless holiday FAC |
By its order dated February 26,1969,the Labour Court allowed the claim of the respondent FAC |
Thereupon the establishment moved the High Court at Madras u FAC |
art.226 of the Constitution challenging the,decision of the Labour Court FAC |
contending that the claim made by the respondent was untenable as normally a worker works only for six days in a week and the maternity benefit had to be computed only for 72 days FAC |
As against this,the respondent pleaded that the computation had to be made not with reference to the Actual number of working days but with reference to total number of days covered by twelve weeks i.e.84 days FAC |
The Single Judge of the High Court to whom the case was assigned allowed the petition holding that twelve weeks for which maternity benefit is provided for in subs.(3) of s.5 of the Act must be taken to mean twelve weeks of work and the computation of the benefit had to be made with reference to the Actual days on whic... |
Aggrieved by this decision,the respondent filed an appeal u/cl.15 of the Letters Patent which,as already stated,was allowed by the Letters Patent Bench of the High Court observing that the maternity benefit which the respondent was entitled to receive was for the period of her absence before delivery including the day ... |
Dissatisfied with this decision,the establishment has,already stated,come up in appeal to this Court by special leave FAC |
We have heard Mr FAC |
Pai,learned counsel for the appellant as also Mr FAC |
Bhatt,who in view of the default in appearance of respondent No.2 and the importance of the point involved in the case was appointed as amicus cruaie FAC |
We place on record our deep appreciation of the valuable assistance rendered to us by both of them FAC |
Assailing the judgment and order under appeal,Mr ARG |
Pai has urged that since legislative intent,as revealed from the scheme of s.5(1) of the Act is to compensate the woman worker who expects delivery for the loss that her forced absence from work on account of pregnancy and confinement may entail,the liability which has to be imposed on her employer cannot exceed the am... |
He has further urged that since u/s.5 (1) of the Act,the maternity benefit has to be computed with reference to the period of the workers' actual absence thereby meaning absence on days on which there was work excluding Sundays and the term 'week" in the context of 'sub-ss.(1) and (3) of s.5 of the Act is to be under s... |
In support of his contention ARG |
Mr ARG |
Pai has referred us to the Full Bench decision of the Kerala High Court in Malayalam Plantations Ltd ARG |
Cochin v Ratio |
Inspector of Plantation Mundakayam ARG |
Ors.,(1975 ARG |
Lab ARG |
I.C.848=A.I.R.1975 ARG |
Ker.86 1974 Indlaw KER 91,and to Convention No.103 concerning Maternity Protection Convention (Revised),1952 adopted by the General Conference of the International Labour Organisation ARG |
Bhatt has,on the other hand,urged that the scheme of s.5 of the Act clearly indicates that a woman worker who expects delivery had to be paid maternity benefit for all the seven days of the week including Sundays falling within the ante-natal and post-natal periods specified in the s ARG |
For a proper determination of the question involved in the appeal,it would,we think,be useful to refer to certain provisions of the Act which have a bearing on the subject matter of the controversy before US Ratio |
s.2(1) of the Act makes the Act applicable to every establishment being a factory,mine or plantation (including any such establishment belonging to Government and to every establishment wherein persons are employed for the exhibition of equastrain acrobatic and other performance STA |
Sub-s.(2) of s.2 of the Act specifically excludes the applicability of the provisions of the Act to any factory or other establishment to which the provisions of the Employees State Insurance Act,1948 apply for the time being.s.3(n) of the Act defines "wages" as under :- "3(n).--Wages means all remuneration paid or pay... |
2) incentive bonus; and (3) the money value of the concessional supply of food-grains and other articles,but does not include STA |
i) any bonus other than incentive bonus; (ii) over-time earnings and any deduction or payment on account of fines; (iii) any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the woman under any law for the time being in force; and (iv) any gratuity payable on the ... |
The above definition,it would be noted,does not restrict the meaning of the term "wages" to contractual wages but gives the term a composite meaning covering all remunerations in the nature of cash allowances,incentive bonus and the money value of the concessional supply of foodgrains and other articles Ratio |
S.4 of the Act which prohibits the employment of,or work by,woman during certain period lays down :- "4.Employment of,or work by,woman prohibited during certain period.- (1) No employer shall knowingly employ a woman in any establishment during the six weeks immediately following the day of her delivery or her mis-carr... |
No woman shall work in any establishment during the six weeks immediately following the day of her delivery or miscarriage STA |
3) Without prejudice to the provisions of section 6,no pregnant woman shall,on a request being made by her in this behalf,be required by her employer to do during the period specified in sub-s.(4) any which is of an arduous nature or which involves long hours of standing,or which in any way is likely to interfere with ... |
The period referred to in sub-s.(3) shall be- (a STA |
the period of one month immediately preceding the period of six weeks,before the date of her expected delivery; (b STA |
any period during the said period of six weeks for which the pregnant woman does not avail of leave of absence under section 6 STA |
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