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CHRISTIAN MEDEICAL versus THE INSPECTOR OF LABOUR

High Court of Madras

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Christian Medeical v. The Inspector of Labour - W.P.No.1977 of 1997 [2003] RD-TN 969 (4 November 2003)



IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 04/11/2003

Coram

The Honourable Mr.Justice F.M.IBRAHIM KALIFULLA W.P.No.1977 of 1997

Christian Medeical

and Hospital,

Ida Scudder Road,

Vellore-632 004

rep. by its Director .. Petitioner -Vs-

1. The Inspector of Labour,

Vellore.

2. The Deputy Inspector of Labour,

10, Ponniamman Koil Street,

Sainathapuram,

Vellore-1. .. Respondents Petition under Article 226 of the Constitution of India praying to issue a writ of Certiorari, for the reasons as stated therein. For Petitioner : Mr.Sanjay Mohan

For Respondent : Mr.MGH. Varadarajan, AGP :ORDER



The challenge in the Writ Petition is to the order No.C.10504/1996 dated 29-1-1997 of the first respondent, wherein, the first respondent has directed the petitioner to register its establishment under the provisions of the Contract Labour (Regulation and Abolition) Act, 1 970 (hereinafter referred to as 'the Act').

2. The petitioner claims to be an educational institution run by Christian Religious Minority. It is claimed that it has got a Medical College and College of Nursing in Vellore with a hospital attached to it. The institution is stated to have got the affiliation from the University of Madras and now by the M.G.R.Medical University. It is stated that in the Medical College and Hospital, it has also got an Eye Hospital, Mental Health Centre and a Rural Health Centre, where, the students of the Medical College, College of Nursing and paramedical courses obtain practical training for their educational courses. It is also stated that the maintenance of establishment of hospital is the requirement stipulated by University of Madras as an integral part of such medical institution. Admittedly, the petitioner is stated to have entrusted the security arrangement of the college as well as the hospital to a Contractor, while the additional construction work is stated to have been entrusted to a building Contractor. It was in the above circumstances, it is stated that the respondents wanted the petitioner to register its establishment under the provisions of the Act.

3. The contention of Mr.Sanjay Mohan, learned counsel appearing for the petitioner is in two fold. In the first place, he would contend that the petitioner institution being an educational institution will not come within the definition of 'establishment' as defined under Section 2(e) of the Act and secondly, the petitioner being a minority institution is protected by Article 30(1) of the Constitution.

4. According to the learned counsel, when the definition of an ' establishment' under Section 2(e) of the Act, in its strict interpretation would not take within its fold an educational institution, the direction of the respondents to register the petitioner institution under the provisions of the Act cannot be legally sustained. The learned counsel mainly relied upon the judgments of the Hon'ble Supreme Court reported in 2001(2) SCC 115 (RUTH SOREN versus MANAGING COMMITTEE, EAST I.S.S.D.A. AND ANOTHERS) and AIR 1972 SC 168 (THE COMMISSIONER OF INCOME TAX, ANDHARA PRADESH versus M/S.TAJ MAHAL HOTEL, SECUNDERABAD) in supported of his submissions.

5. According to the learned counsel, the sweeping definition of ' industry' under Section 2(j) of the Industrial Disputes Act 1947 cannot be applied in the absence of any specific provision to that effect in this Act. The learned counsel also relied upon the orders of the Hon'ble supreme Court to the case of the petitioner rendered in W.P.( Civil) No.482 of 1993, dated 25-3-2003, W.P.(Civil) No.261 of 2003, dated 3-7-2003, W.P.(Civil)No.350 of 1993, dated 14-8-2003 and W.P.No.2 61 of 2003, dated 18-9-2003 to contend that the petitioner's status as a 'minority institution' having been definitely stated in the above said orders by virtue of Article 30(1) of the Constitution, when there cannot be any interference in the day-to-day administration of the petitioner institution, the attempt of the respondents in calling upon the petitioner to get it registered under the provisions of the Act would be hit by the Constitutional protection guaranteed under the said Article. The learned counsel placed reliance upon the Constitutional Bench Judgment of the Hon'ble Supreme Court reported in 2002(8) SCC 534 (T.M.A.PAI FOUNDATION AND OTHERS versus STATE OF KARNATAKA & OTHERS), 2001(1) LLJ 18 (CHRISTIAN MEDICAL COLLEGE versus EMPLOYEES' STATE INSURANCE CORPORATION) and 44 F JR 19.

5. As regards the judgment of the Hon'ble Supreme Court in regard to the petitioner institution itself reported in 1988(1) LLJ 263 ( CHRISTIAN MEDICAL COLLEGE HOSPITAL EMPLOYEES' UNION AND ANOTHER versus CHRISTIAN MEDICAL COLLEGE VELLORE ASSOCIATION AND OTHERS) which came to be rendered under the provisions of the Industrial Disputes Act, the learned counsel would contend that the same is clearly distinguishable.

7. As against the above said contentions, the learned Special Government Pleader contended that by virtue of the decision of the Hon' ble Supreme Court reported in 1988(1) LLJ 263 (cited supra) rendered in the case of the petitioner institution, the various submissions of the petitioner cannot be countenanced. According to the learned Special Government Pleader, the petitioner institution would fall within the definition of 'establishment' as defined under Section 2(e) of the Act and therefore, the impugned order of the respondents was fully justified.

8. To appreciate the contention of the petitioner, the definition of Section 2(e) under the Act as well as the definition of Section 2( j) under the provisions of the Industrial Disputes Act 1947 require extraction which reads as under:

"2(e). "establishment", means-

(i) any office or department of the Government or a local authority, or

(ii) any place where any industry, trade, business, manufacture or occupation is carried on;

"2(j). "Industry means any systematic activity carried on by cooperation between an employer and his workmen (whether such workmen are employed by such employer directly or by or through any agency, including a contractor) for the production, supply or distribution of gods or services with a view to satisfy human wants or wishes (not being wants or wishes which are merely spiritual or religious in nature), whether or not,-

(i) any capital has been invested for the purpose of carrying on such activity; or

(ii) such activity is carried on with a motive to make any gain or profit and includes-

... ..... ....."

9. In the judgment reported in 2001(2) SCC 115 (cited supra), an employee who was terminated from services of an educational institution moved the Labour Court which was the constituted authority under the provisions of the Bihar Shops and Establishment Act, 1953, questioning the correctness of the order of termination. The Labour Court directed reinstatement which was called in question in a Writ Petition and the Writ Petition was also dismissed by the learned Single Judge. When the matter went before the Division bench, the Division Bench took a different view based on the judgment o f the Supreme Court in "Unnikrishnan, J.P. Versus State of A.P." reported in 1993(1) SCC 645 , wherein the Hon'ble Supreme Court took the view that ' establishment' of an educational institution could neither be a business nor trading activity and even if it could be called as an 'industry' under the provisions of the Industrial Disputes Act, when comes to the question of protecting the Fundamental Rights under 19(1)(g) of the Constitution, it will have to be held that an educational institution will have to be treated differently. The Division Bench, accordingly allowed the appeal and held that the Labour Court had no jurisdiction under the provisions of the Bihar Shops and Establishments Act. Dealing with the said issue, the Hon'ble Supreme Court, has held as under in para 4: "4. An "establishment" for the purposes of the Act means an establishment which carries on any business, trade or profession or any work in connection with, or incidental or ancillary thereto. Concept of industry, as defined under the Industrial Disputes Act, would include any business, trade, undertaking, manufacture or calling of employers and includes any calling service, employment, handicraft, or industrial occupation or avocation of workmen. There is an organised activity between employers and employees to impart education. Such an activity, though may be industry will not be a profession, trade or business for the purposes of Article 19(1)(g) of the Constitution, would not be one falling within the scope of "establishment" under the Act. Therefore, the view taken by the Division Bench of the High Court is unexceptionable. The High Court did appreciate that Unni Krishnan case itself made a distinction between what was stated in Bangalore Water Supply & Sewerage Board Versus A.Rajappa (1978(2) SCC 213)."

10. Mr.Sanjay Mohan, learned counsel, however, laid stress on the observations of the Hon'ble Supreme Court made in para 5 which is to the following effect.

"5. ..... Even so, the question for consideration is whether educational institution falls within the definition of "establishment" carrying business, trade or profession or incidental activities thereto. "Establishment", as defined under the Act, is not as wide as " industry" as defined under the Industrial Disputes Act. Hence reliance on Bangalore Water Supply & Sewerage Board Versus A.Rajappa (cited supra) for the appellant is not of any help."

11. According to the learned counsel, the sweeping definition of ' industry' under Section 2(j) of the Industrial Disputes Act as interpreted by the Hon'ble Supreme Court in "Bangalore Water Supply & Sewerage Board" case cannot be extended to the case on hand where the Act only provides for regulatory measures in respect of contract labour and when the definition clause of 'establishment' used a different set of expressions other than the definition of an 'industry' under Section 2(j) of Industrial Disputes Act, the term 'industry' used in the definition of an 'establishment' under Section 2(e) of the Act, will have to be read in the context in which it is used, namely, in the sense of covering a business or trading establishment and not in the way in which an extended definition is provided under Section 2(j) of the Industrial Disputes Act. According to the learned counsel, when the definition of 'industry' under Section 2(j) of the Industrial Disputes Act would take within its fold, every systematic activity including business or trade, the specific expression used in the definition of an 'establishment' under Section 2(e) of the Act will have to be given their due meaning independent of any other definition under any other enactment in particular, the definition of the term 'industry' under the provisions of the Industrial Disputes Act. In support of such submission, the learned counsel also relied upon the judgment reported in 52 FJR 197 and the concurrent view expressed by His Lordship Mr.Justice J.Chandrachud in the very same case which judgment has been reported in 1978(2) LLJ 73 (THE BANGALORE WATER SUPPLY AND SEWERAGE BOARD ETC., ETC., versus A.RAJAPPA & OTHERS, ETC., ETC.,).

12. According to the learned counsel, when the definition of ' establishment' under Section 2(e) of the Act specifically states that an industry would come within the definition of 'establishment', the said term 'industry' should be construed in its popular sense. The learned counsel relied upon 1972 SC 168 (cited supra) in particular para 6 of the said judgment wherein, the Hon'ble Supreme Court have held that- "6. .... where the definition of a word has not been given, it must be construed in its popular sense if it is a word of everyday use. Popular sense means "that sense which people conversent with the subject matter with which the statute is dealing would attribute it. ".... When it is so used these words and phrases must be construed as comprehending not only such things as they signify according to their nature and import but also those things which the interpretation clause declares that they shall include. ...."

13. The learned counsel would therefore contend that when the definition of term 'industry' has not been provided under the provisions of the Act, it should be interpreted in a way in which it could be construed in the light of the provisions of the Act so interpreted. According to the learned counsel, the term 'industry' under Clause 2(e) of the Act can only be construed by applying the legal maxim " ejusdem generis" in which event, when the expression 'industry' has been used along with the other sets of expression, namely, trade, business, manufacture or occupation, unless, the establishment which is sought to be covered is also involved in a similar such activity and thereby bringing it within the definition of 'industry', there is no scope to rope in an establishment like that of the petitioner which is purely an educational institution, not indulging in any business or trade or any other commercial activity, so as to be brought within the fold of 'industry' as sought to be widely defined under Section 2(j) of the Industrial Disputes Act.

14. The learned counsel by drawing attention, to certain other provisions, viz., Section 2, 2(g), and (ii) explanation for the purpose of sub clause 3 of 2(g) and also Section 2(h) of the Act, contended that when the Parliament thought it fit to specifically state that the definitions under the Factories Act or the Payment of Wages Act, or the Mines Act could be imported for certain purposes, and when such a specific provision as regards the definition of 'industry' not having been specifically provided under the Act, there is no warrant to rely upon the sweeping definition of 'industry' under Section 2(j) of the Industrial Disputes Act.

15. Though in the first blush, the submission of the learned counsel is quite appealing and appears to be convincing, I am afraid the same cannot be acceded to. To buttress the argument of the learned counsel for the petitioner, the Special Government Pleader relied upon the judgment of the Hon'ble Supreme Court in the case of the petitioner reported in 1988 (1) LLJ 263. The main question which arose for consideration in that case was whether Sections 9(A), 10, 11(A), 12 and 33 of the Industrial Disputes Act were applicable to minority institutions which was protected by Clause (1) of Article 30 of the Constitution. While dealing with the said question, the Hon'ble Supreme Court observed that the Industrial Disputes Act was enacted as a social security measure to ensure the welfare of labour falling under one or the other of entry either of 22 or 23, that the application of it was to all industries irrespective of religion or caste to which it belong and to industries owned by even the Central and State Governments and therefore, when the smooth running of an educational institution would depend upon the employment of workmen who are not subjected to victimization or any other kind of maltreat ment irrespective of the status of the institution, namely, whether it is minority or nonminority, the conditions of service of workman in all institutions will have to be protected in the interest of the society at large. The Hon'ble Supreme Court went on to hold that when the provisions of the Industrial Disputes Act was mainly for prevention and settlement of industrial disputes it cannot be construed as a law which would directly interfere with the right of administration of a minority educational institution guaranteed under Article 30(1) of the Constitution. The Hon'ble Supreme Court further took note of the constitutional mandates provided under Article 41 to 43 of the Constitution where it has been directed that the state should make effective measure for securing right to work and also for securing just and humane conditions of work and for maternity relief apart from the endeavour of state to secure by suitable legislation or economic organization or in any other way to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities, and held that those rights which are enforced through the several pieces of labour legislation in India have got to be applied to every workman irrespective of the character of the management. The Hon'ble Supreme has expressed the above views in para 18 in the following manner:

"18. .... The Preamble of our Constitution says that our country is a socialist republic. Article 41 of the Constitution provides that the State shall make effective provision for securing right to work, Article 42 of the Constitution provides that the State shall make provision for securing just and humane conditions of work and for maternity relief. Article 43 of the Constitution states that the State shall endeavour to secure by suitable other way to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities. These rights which are enforced through the several pieces of labour legislation in India have got to be applied to every workman irrespective of the character of the management. Even the management of a minority educational institution has got to respect these rights and implement them. Implementation of these rights involves the obedience to several labour laws including the Act which is under consideration in his case which are brought into force in the country. Due to obedience to those laws would assist in the smooth working of the educational institutions and would facilitate proper administration of such educational institutions. If such laws are made inapplicable to minority educational institutions being subjected to mal-administration. ..."

16. The Hon'ble Supreme Court ultimately set aside the judgment of the High Court which took the view that irrespective of the fact that the petitioner institution falls under the definition of 'industry' under Section 2(j) of the Act had the Constitutional protection under Article 30(1) and therefore the various provisions of the Industrial Disputes Act cannot apply to the petitioner institution. 17. While dealing with the present controversy involved in the writ Petition, I find that the various observations made by the Hon'ble Supreme Court while dealing with the applicability of the provisions of the Industrial Disputes Act to the petitioner institution can be equally applied while construing the provisions of the Act. While in the case of the Industrial Disputes Act, the object of the enactment was to ensure speedier resolution of industrial disputes by providing the machinery and procedure for investigation and settlement of such disputes, the Act is meant to regulate the employment of the contract labour in certain establishments and to provide for the abolition in certain circumstances and for the connected matters therein.

18. The various provisions under the Act provides for the constitution of State and Central Advisory Boards as well as, the integral committees of such Boards, registration of certain establishments under the Act, prohibit employment of Contract Labour, licensing of contractors, provision of appeal in respect of the registration, licensing etc., welfare facilities to be provided for the contract labourers such as canteens, rest rooms, first aid facilities, responsibility of the principal employer as well as the contractor for payment of wages to the contract labour, penal provisions for violation of the various stipulations, maintenance of registers, etc. along with the power to frame necessary rules for the enforcement of the above stated provisions. Therefore, the purport of the enactment is to ensure that the contract labour get their return for the labour offered by them by ensuring the payment of their wages apart from provision of the minimum required facilities in the course of discharge of their labour to the principal employer through a contractor under whom they are engaged. When the registration of any establishment is insisted upon and if any person is aggrieved against such insistence, necessary appeal provision has also been provided to challenge such registration insisted upon. If any prohibition is imposed for employment of contract labour by invoking Section 10 of the Act, then again, such prohibition could be resorted to by the appropriate Government after making a thorough exercise as provided under sub sections 1 and 2 of the said Section and in the event of any failure on the part of the appropriate government while carrying out such exercise, it is always subject to the review by this Court in exercise of the extraordinary power under Article 226 of the Constitution. Therefore, a comparative study of the various provisions of the Act vis-a-vis, the provisions of the Industrial Disputes Act as explained by the Hon'ble Supreme Court in the above referred to judgments, it can be safely concluded that the purport of the enactments were with the lofty idea of protecting the work force from the vagaries of unfair labour practice or such other practices that would undermine the interest of the work force. In other words, in the larger interest of the work force, the above stated enactments have been brought in the fulfilment of the constitutional mandate provided under Articles 41 to 43 of the Constitution.

19. Keeping the above said precept in mind, when the argument advanced on behalf of the petitioner is analysed, it will have to be stated that there would be no injustice caused to the petitioner even if the term 'industry' contained in the definition clause of ' establishment' under Section 2(e) of the Act is given a wider interpretation in order to cover even the petitioner's establishment under the definition of 'industry'. I am unable to appreciate the contention of the learned counsel for the petitioner that the status of the petitioner institution as an educational institution should be given a paramount importance and even if it had already been held as an 'industry' by this Court by virtue of its systematic functioning which was also confirmed by the Hon'ble Supreme Court, it should still be excluded from the purview of the Act by holding that such a concept of 'industry' as held by the earlier decisions in respect of the petitioner institution should not be extended when it comes to the question of application of the provisions of the Act, I am unable to subscribe to such a contention put forth on behalf of the petitioner and thereby exclude the petitioner institution from the applicability of the provisions of the Act. There can be no two opinion that even the Act is also a welfare legislation by virtue of the intent and purport for which the enactment came to be made and in such circumstances, I am of the view that by applying the earlier decisions of this Court and that of the Hon'ble Supreme Court in having held the petitioner institution as an industry for the purpose of Industrial Disputes Act, could be safely applied even for calling the petitioner as an 'industry' falling within the definition of 'establishment' under Section 2(e) of the Act. By adopting such a course, I am convinced that would not militate against the literal interpretation to be given to the definition clause of 'establishment' under Section 2(e).

20. The judgment of the Hon'ble Supreme Court reported in 2001(2) SCC 115 is clearly distinguishable. The Hon'ble Supreme Court was dealing with a case of 'Bihar Shops and Establishment Act, 1953, where the definition of 'establishment' did not include the term 'industry' in its definition and therefore, the interpretation given to the said clause in the said judgment can have no application to the case on hand where we are concerned with the definition of 'establishment' where the specific term 'industry' has been specifically used in the forefront while including any other place where any trade, business manufacture or occupation is carried on. The stress laid upon the sentence in para 5 of the above referred to judgment holding "even so the question for consideration is whether educational institution falls within the definition of 'establishment' carrying business, trade or profession or incidental activities thereto. 'Establishment' as defined under the Act is not as wide as 'industry' as defined under the Industrial Disputes Act, hence reliance on Bangalore Water Supply & Sewerage Board case is not of any help and also does not improve the case of the petitioner. The said sentence cannot be read in isolation. If paragraphs 4 and 5 of the said judgment are read together, it can be easily understood that the Hon'ble Supreme Court dealt with the case while applying the definition 'establishment' in respect of a statute which was dealing with shops and commercial establishments and the definition of 'establishment' in that particular enactment did not include an industry in its definition of 'establishment' and it was in that context, the Hon'ble Supreme Court was pleased to hold that an educational institution can by no stretch of imagination be brought under the definition of 'establishment' under that enactment. Therefore, merely because, the definition clause in that Bihar Shops and Establishments Act was related to an 'establishment', it cannot be straight away applied to the definition of 'establishment' under the Act. The definition under the Contract Labour (Regulation & Abolition) Act under Section 2(e) is differently worded when compared to the definition of 'establishment' under Bihar Shops and Establishment Act. The significant and distinct feature in both the definitions are, while the words 'industry' and 'occupation' are specifically included in the definition of 'establishment' under Section 2(e) of the Contract Labour (Regulation & Abolition) Act, both the above said terms are absent in the definition of 'establishment' under the Bihar Shops and Establishments Act. Therefore, the ratio of the above said judgment can have no application to the facts of this case. In any event, even in the said judgment, the Hon'ble Supreme Court in para 4 has highlighted the distinction by pointing out that even in an educational institution, there is an organized activity between the employer and employees to impart education and such an activity would certainly be called as an 'industry' though the same may not be a 'profession, a trade, or a business' for the purpose of Article 19(1)(g) of the Constitution. Therefore, I am unable to accept the stand of the petitioner based on the above referred to judgment in order to hold that the petitioner will not fall under the definition of 'establishment' under Section 2(e) of the Contract Labour (Regulation & Abolition) Act.

21. One other contention raised on behalf of the petitioner was that while under Section 2(j) of the Industrial Disputes Act, the definition of 'industry' itself was to mean any business, trade, undertaking, manufacture or calling of employers including any industrial occupation or avocation of workman in the definition of 'establishment' under Section 2(e) of the Act, 'industry' has been separated from other places where trade, business, manufacture or any other occupation is carried on and when redundancy cannot be attributed to the statutory definition, any pronouncement based on the definition of 'industry' under Section 2(j) of the Industrial Disputes Act cannot be applied to the definition of 'establishment' under Section 2(e) of the Act. Therefore, the contention was that the term 'industry' under Section 2 (e) of the Act should be given an independent interpretation and read along with the term trade, business, manufacture or any other occupation. On that basis, it was contended that if an independent interpretation to the term 'industry' as found in Section 2(e) of the Contract Labour (Regulation & Abolition) Act is made, applying the ratio of the Hon'ble Supreme Court reported in AIR 1972 SC 168, it will have to be seen whether in the common parlance, an educational institution would come under the definition of 'industry'. In support of the said submission, reliance was also placed upon the decision of the Hon'ble Supreme Court reported in AIR 2003 SC 355. The Hon'ble Supreme Court, while considering the activity of an educational institution for the purpose of Article 19(1)(g) of the Constitution was pleased to hold that the establishment and running of an educational where a large number of persons are employed as teachers or administration staff and an activity is carried on that results in the imparting of the knowledge to the students, must necessarily be regarded as occupation, even if there is no element of profit generation. It is difficult to comprehend that education, per se, will not fall under any of the four expressions in Article 19(1)(g).

22. It was contended that such an interpretation in relation to an educational institution cannot be applied while construing a definition under the Contract Labour (Regulation & Abolition) Act. According to the petitioner, status of an educational institution vis-a-vis the definition of industry under the Contract Labour (Regulation & Abolition) Act should be viewed entirely on a different perception as here, if it were brought under the definition of 'industry', it should be an 'industry' which has any profit, motive or as a comercial venture inasmuch as, the definition of 'establishment' under Section 2(e) of the Contract Labour (Regulation & Abolition) Act talks of an ' industry' equated to the other places where any business, trade, manufacture or other occupation are carried on. I feel that even without placing any reliance upon the interpretation given to an educational institution in the context of the application of Article 19(1)(g) of the Constitution, even going by the judgment of the Hon'ble Supreme Court reported in 1988(1) LLJ 263 which came to be rendered in the case of the petitioner itself, as held by me earlier, that the ratio of the said judgment though rendered in the light of the provisions of the Industrial Disputes Act can be safely applied even while applying the provisions of the Contract Labour (Regulation & Abolition) Act with particular reference to the definition of an establishment under Section 2(e) of the said Act. Therefore, I am not able to be persuaded to take a different view based on the above said submission made by the learned counsel for the petitioner. Even the said judgment of the Hon'ble Supreme Court reported in 1988(1) LLJ 263, having dealt with the contention of the petitioner based on Article 30(1) of the Constitution in extenso in paragraph 18 of the said judgment, it will have to be held that no further discussion on that question need be made. Therefore, I do not find any illegality or irregularity in the order of the first respondent in calling upon the petitioner to get itself registered under the provisions of the Act.

In the view of the foregoing discussion, the Writ Petition fails and the same is dismissed. No costs.

Index: Yes

Internet: Yes

To

1. The Inspector of Labour,

Vellore.

2. The Deputy Inspector of Labour,

10, Ponniamman Koil Street,

Sainathapuram,

Vellore-1.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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