But the nature of the provision of law, which was then expected, cannot be imposed on this scheme, which must be judged on its own terms; these leave no doubt that it is not a profit bonus scheme but an incentive wage plan depending upon production in the main. would be restricted only to those cases which were before this Court and not for all cases which were pending in different High Courts at that stage, at least to the issues which are common in nature.
It is urged that this shows that the scheme was one for profit sharing or profit bonus, because it was likely to be cancelled or modified if legislation was introduced with respect to these. Counsel on behalf of the respondent contended that regularisation would mean conferring the quality of permanence on the appointment whereas counsel on behalf 950 of the State contended that regularisation did not mean permanence but that it was a case of regularisation of the rules under Article 309.
The contention therefore that the bonus under the scheme is a profit bonus and therefore the workmen are not entitled to the profit bonus under the Full Bench formula must fail. In other words, the regularisation order, Best Counsels in Chandigarh colouring the appointments of promotees as Assistant Engineers with permanence would run counter to the rules framed under article 309 of the Constitution of India. The reasons for this conclusion are contained in para 8 of the judgment, the relevant portion of which is extracted below : The Court in Radhey Shyam case (supra) also considered the question whether the appellant could challenge the award in the execution proceedings and answered the same in the affirmative.
And such a course is not permissible because an act done in the exercise of the executive power of the Government as already stated, cannot override rules framed under Article 309 of the Constitution. nTherefore, it cannot be said that the effect of the [pic]decision Suspension of Sentense Advocate in Chandigarh Ashoka Smokeless Coal India (P) Ltd. Lakshmikumaran, learned counsel appearing for the appellant, is that when the specific description of the goods in question, namely, LCDs, is distinctly covered by another tariff item which is 9013, it has to be classified in that entry and the factum of its use as part or accessory in the electronic energy meters would be of no consequence and, therefore, it cannot be held to be covered by tariff item 9028.
Both the contentions are fallacious. Having thus ascertained the legal position regarding the stand alone agreement relating to arbitration with particular reference to arbitration agreement in a legal transaction between the parties, when we refer to Clause 27 of the MoU, we wish to find out whether the said Clause satisfies the principles set down and applicable to a stand alone Arbitration Agreement. It is one thing to cancel or modify a scheme because the legislature steps in to provide for extra payment for workmen.
Regularisation cannot be said to be a mode of recruitment. But that does not mean that the scheme itself provided for profit sharing or profit bonus. What could not be done under the three sets of Rules as they stood, would thus be achieved by an executive fiat. To accede to such proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules. Therefore, having regard to the overwhelming decisions of this Court in having repeatedly expressed what is meant by cognizance and in majority of the decisions by making specific reference to Section 190, we are clear that the interpretation has to be to the cognizance of the offence to be taken note of by the Judicial Magistrate as prescribed under Section 190 and if it takes place that would satisfy and fulfill the requirement of cognizance of offence by the filing of more than one charge-sheet before the Competent Court as stipulated in Section 2(1)(d) of MCOCA.
When we refer to Clause 27, we find that in the event of failure of an amicable settlement at the bilateral level relating to a dispute or difference arising between the appellant and the respondent to be reached as contained in Clause 26 of the MoU, then such unresolved dispute or difference concerning or arising from the MoU, its implementation breach or termination whatsoever including any difference or dispute as to the interpretation of any of the terms of the MoU is referable to the sole Arbitrator appointed by the appellant and the respondent.
Therefore, irrespective of the question or as to the fact whether the MoU fructified into a full-fledged agreement, having regard to the non-fulfilment of any of the conditions or failure of compliance of any requirement by either of the parties stipulated in the other Clauses of MoU, specific agreement has been entered into by the appellant and the respondent under Clause 27 to refer such controversies as between the parties to the sole arbitrator by consensus.
Therefore, when consensus was not reached as between the parties for making the reference, eventually it will be open for either of the parties to invoke Section 11 of the Act and seek for reference of the dispute for arbitration. 1035 remain in force in the first instance, the government en- forced by legislation any scheme or provision for bonus or profit sharing, the company may decide to cancel or modify the scheme in its entirety. The submission, precisely, was that whenever a particular item of goods falls in a specific tariff item, it has to be classified under the said tariff item and not Top Solicitor in Chandigarh other item where it can be used as part thereof.
Regulaisation in the present case, if it meant permanence operative from the 1st of November, 1956, would have the effect of giving seniority to promotees over the direct recruits who, in the absence of such regularisation, would rank senior to the former because of the Seniority Rules read with the Probation Rules and may in consequence also confer on the promotees a right of priority in the matter of sharing the quota under the Recruitment Rules. It the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised.
The regularisation order was made long after the Probation Rules, the Seniority Rules and the Recruitment Rules were promulgated and could not therefore direct something which would do violence to any of the provisions thereof. As adverted to hereinbefore above, the prosecution has completely failed in the instant case to either prove the participation of five or more persons in the commission of the offence or establish their identity Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not to to the root of the appointment.
It may be that the scheme might have been cancelled or modified if such legislation was passed. ” Apart from repelling the contention that regularisation connotes permanence, these observations furnish the second reason for rejection of the argument advanced on behalf of the promotees and that reason is that when rules framed under article 309 of the Constitution of India are in force, no regularisation is permissible in exercise of the executive powers of the Government under article 162 thereof in contravention of the rules.