BALWAN SINGH

PRAKASH CHAND & OTHERS

(Vice-Versa)

February 4, 1976

[P. K. GOSWAMI AND P. N. SHINGHAL, JJ.]

Representation of People Act, 1951-S. 123(5)-Corrupt Practice-Procuring of G tractor and trolly belonging to the candidate's wife for carrying voters to

tlif' polling station-1! .corrupt practice.

Words and phrases "procuring", nieaning of-

Practice-A1nendment , of election petition after the period prescribed for C presentation-If could be done-Whether obligatory for the election petitioner to examine hitnself at the trial.

The appellant's election to the State Assembly \Vas set aside by the High Court on the ground of corrupt practice fallip_g under s. 123(5) of the Repre~ sentation of People Act.

The appellant, it v,:as alleged, hired and pro:::ured vehicles for the free conveyance of voters. This was however denied by the appellant. The High Court allowed amendment of the election petition by inserting a new .sub-paragraph 12(d), stating that the names of the persons D who hired or procured the vehicles for carrying the voters to the polling station were given in schedule lll(i) of the petition, on the view that the information given was a necessary particular to -allege and prove that the vehicle was used for the conveyance of the voters.

It was contended in this Court_1 (i) that the tractor in which the voters were alleged to have been carried to the polling station, was taken there in some other connection and that though the tractor was in the name of his wife as benamidar. it really belonged to the appellant and, as such, no question of E hiring or procuring it, whether on payment or otherwise, arose so as to make it fall within the purview of s. 123 (5) of the Act; and (ii) that the High Court had committed a serious error of law in allowing: the election petition to be amended after the expiry of the period prescribed for its presentation.

Dismissing the appeal,

HELD : The finding of the High Court that the appellant procured the tractor with trolly and used it for the purpose of transporting the voters to the F polling station and thereby committed a corrupt practice within the meaning of s. 123(5) of the Act is correct. [348E]

(1) (a) There is no justification for contending that there could be no question or occasion for hiring or procuring the tractor because it belonged to the appellant. It cannot be urged that the tractor, which belonged to his wife, must be deemed to belong to the appellant or that it should be inferred that she was a n1ere benamidar when that was not the appellant's cas~ anyw'here.

The tractor belonged to the wife of the appellant and was not his own property.

G f341E-F]

(b) It would amount to "procuring" the tractor if it could be shown that the appellant obtained or got or acquired the tractor from his wife.

The dictionary meaning of the word "procure'' is "to obtain as by request loan, effort, labour; get, gain, come into possession of". This is the correct meaning of the word used in s. 12(5). [34\G-H]

( c) It is not ahyays possible for an election petitioner to adduce direct evidence to _prove that a particular vehicle was hired or procured by the candi-. date or his agent or by any other person with the consent of the candidate or his election agent, but this can be inferred from the proved circumstances where such inference is justifiable. [348B]

Bhagwan Datta Shastri v. Badri Narayan Singh and others, A.LR. 1960 S.C. 200; Shri Un1ed v. Rai SinJ?h and others. A.LR. 1975 S.C. 43: Ratn Awadesh Sinf{h v. Suniitra Devi and Others. [19721 2 S.C.R. 674: Rahim Khan v. Khurshitl

Ahmed and others, [1975] 1 S.C.R. 643; Baburao Ragaji Karemore and others

v. Govind and others [19741 2 S.C.R. 4zg; and Srnt. Indira Nehru Gandhi v.

Raj Narain, AJ.R. 1975 S.C. 2299, referred to.

(2) It is futile to contend that a new corrupt practice was allowed to be inserted by the Hhb Court's order of amendment. The s-::hedulc was an integral part of the election petition and the original election petition contained what was required to be stated by s. 83 of the Act and the amendment was n1eant to furnish some further particulars in regard to the same corrupt practice.

When issue No. 2 was framed by the High Court, the appellant was tully aware that the election petitioners had alleged the user of the vf'hi--:les also and that \\'as why he joined issue for the trial of that allegation.

[340B-CJ

{3) There is no obligation on the part of the election petitioners to examine themselves at the trial iTh the High Coutt.

The evidence which they vtere able to produce at the trial could not have been rejected for anv such fanciful reason when there was nothing to show that the election petitiOners were able to give useful evidence to their personal knowledge but stayed away purpo<; ely.

[349F)

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 775 and 1107 of 1975.

(From the Judgment and Order dated the 9-4-1975 of the Allahabad High Court in Election Petition No. 24 of 1974)

N. S. Bindra. K. C. AJ?arwala. R- D. Uppadhaya and M.

Srivastava, for the appellant in CAs 775/75.

Yogeshwar Prasad and Miss Rani Arora and Bir Bahadur Singh, for the appellant in CA 1107 /75.

N. S. Bindra, K. C. Agarwala, R. D. Uppadhaya and M. M. L.

Srivastava, for the respondent in CA 1107 /75.

Yogeshwar Prasad, Miss Rani Arora and Bir Bahadur Singh, for respondents 1 and 2 in CAs 775/75.

The Judgment of the Court was delivered by

SHINGHAL, J.-Civil Appeal No. 775 of 1975 has been filed under section l l 6A of the Representation of People Act, 1951, hereinafter referred to as the Act, by Balwan Singh whose election to the Uttar Pradesh Legislative Assembly from the Sarwan Khera constituency at the general election of 1974, has been set aside by the Allahabad High Court by its judgment dated April 9, 1975. The appellant has been held guilty of co=itting a corrupt practice under section 123(5) of the Act, and has been disqualified for a period of six years. His election was challenged on several grounds by an ekction petition filed by respondents Prakash Chandra and Jai Chandra, hereinafter referred to as the election petitioners, who were electors of the constituency.

There were several candidates at the election, but the main contestants were appellant Balwan Singh of the Bhartiya Kranti Dal (B.K.D.) who secured 34.968 votes, and Ragunath Singh, respondent No. 2 of the Congress (R) party who secured 31,008 votes. Appeal No. 1167 of 1975 is by election oetitioner Prakash Chandra for setting aside the judgment on issues decided against the election petitioners.

BAL WAN SINGH V. PRAKASH CHAND ( Shingha/, J.) 3 3 7

The allegation regarding the commission of the corrupt practice referred to above was to the effect that the appellant, his workers, agents and supporters, with his consent hired and procured vehicles for the free conveyance of electors. A concise statement of the material facts in that respect was made in paragraph 12 of the election petition.

Particulars of the vehicles used for the free conveyance of the electors were given in Schedule III of the petition.

The appellant denied the allegation and pleaded in his written statement that none of the vehicles mentioned in Schedule III was either procured or hired by him or his workers and agents with his consent for the purpose of carrying voters to and from the polling stations and that no such vehicle was "used for the purposes of carrying electors to and from the polling stations on the date of poll". It was also stated that the allegations contained in sub-paragraphs 12(a), 12(b) and 12(c) were not the facts required by section 83.

They were totally vague and lacked in material particulars, and were liable to be struck o!f.

The High Court considered that and the other objections and stated in its order dated August 30, 1974, in regard to the obiection that the names of the persons who procured or hired vehicles were not given in paragraph 12 or Schedule III, that the counsel for the election

rletitioner had undertaken to fumi, fu the names.

Tho ek(ij/Jn tioners furnished better particulars by adding paragraph 12( d) stating that the names of the persons who hired or procured the vehicles by which the electors were "carried free of cost from their houses to the polling station" on the date of election by respondent No. 1 were given in Schedule III ( 1). They ?ave the percentage and residence of the persons named in Schedule III, as also particulars and names of the persons who hired and procured vehicles for the free conveyance of the electors, and the names of the owners of the vehicles. An objection was then taken that such an amendment was not permissible.

The High Court rejected that objection by it,1 order dated October 10, 197 4, except that the names of two new persons were not allowed to be inserted in Schedule V. with which we are not concerned.

The High Court framed several issues, including issue No. 2 which was as follows,-

"2. Whether the respondent No. 1 himself, or his workers and agents with hisconsent, h; red or procured veh'cles for the free conveyance of the voters and whether the vehicles so hired and procured were used for the purpose and thereby the respondent No. 1 committed corrupt practice."

After recording the evidence of the parties, the High Court recorded its finding as follows.-

"My answer on issue No. 2 accordingly is that the respondent No. 2 procured tractor 9962 with trolly and hired Jeep UPW 359 and Tractor UTE 5865 with trolly and that the said vehicles were used for free conveyance of voters to Maubasta, J aganpur and Tigain polling stations and further that the respondent No. 1 thereby committed a corrupt practice under section 123(5) of the R.P. Act."

A It was in view of that finding that the election petition was allowed with costs, the election 'of the appellant was declared void, and he was disqualified as aforesaid.

That is how appeal No. 775 has arisen.

The other appear No. 1107 has been filed by election-petitioner Prakash Chandra, as he feels aggrieved against the High Ccurt's findings on the other issues, but Mr. Yogeshwar Prasad has stated that he would not press. that appeal.

We have therefore only Balwan ll Singh's appeal for consideration. ·

 It has been argued by Mr. Bindra on behalf of Balwan Singh, hereinancr referrea to as the appellant, that the High Court ought not to have entertained the elect10n petition as it was not .verified in . the manner laid down in the Code of Civil Procedure for the verifica- -tion of pleadings even though that was the clear requirement of section 83(l)(c) of the Act.

We asked the counsel to refer us to any such objection of the appellant in the trial court, and all that he could do was to invite our attention to paragraph 5 of the application dated November 27, 1974.

That paragraph however relates to the objection regarding the defective verification of the affidavit accompanying the election petition, which is a different matter. That is. in fact the subject matter of Mr. Bindra's second argument, and we shall deal with it separately. The fact remains that an ()bjection regarding the alleged defective verification of the election petition was nor taken in the High Court, and it was not a point at issue there.

There is therefore no justification for allowing it to be raised here.

It is in fact significant that even though an objection was taken on November 27, 1974 in regard to the verification of the affidavit, no such objection was . taken about the verification of the main election petition.

It was vaguely stated that verification of . the affidavit and vertification of the Schedule (i.e. Schedule III) were

"at variance", but that was a different matter. In so far as the verification of the affidavit is concerned, it would be sufficient to say that that part of it which related to the commission of the corrupt practice which was the subject matter of issue No. 2 was concerned (Schedule III) it was verified in accordance with the prescribed form (No. 25 of the Ccndtict of Election Rules, 1961) as true to the election petitioner's information received from the persons mentioned in it.

It was therefore quite in order.

It may be mentioned that although the High Court examined the , objections of the appellant on two occasions, no objection was taken or pressed for its consideration in regard to the verification of the main election petition, its schedules or the affidavits.

An objection was raised in the appellant's application dated November 27, 1974 that the election petition may not be tried because of defective affidavit, but it was rejected by the High Court's order of the same date on the grounds that it was a belated objection, and the alle)!ation of corrupt practice could not be deleted merely because of the defective form of the affidavit.

No issue was joined in respect of any such objection and it cannot be allowed to be raised for the first time in this appeal. It has next been argued by Mr. Bindra that the High Court committed a serious error of law in allowing the election petition to be

amended, after the expiry of the period prescribed for its presentation, A eve11 tnough it did not allege that any vehicle was used for the free conveyance of any elector and did not specify the names of the perc sons who wcr-~ alleged to have hired or procured the vehicles.

It has been urgcu that as the facts alleged in the petition did not bring out all th0 ingredients or the corrupt practice, there was no cause of action for trial.

Reference in this connection has been made to Samant N. Balakrishna etc.

v. George Fernandez and B others('). F!ardwari Lal v. Kamal Singh,(') Raj Narain v. Smt. fndira Wehru Gandhi and another(') and Vatal Naxaraj v. R.

Dayanand

agar(').

By the amendment in question, the election petitioners had applied for insertion of a new sub-paragraph ( d) in paragraph 12 of the petition as follows,- C

"The names of the persons who hired or procured t.he vehicles by which the electors were carried free of cost from

their houses to polling station on the date of election by respondent No. 1, his workers and agents with his consen( arc given in schedule Ill(i) of the election petrtion."

Scheduic Ill(i) gave the particulars and names of the persons who hired and procured the vehicles for the free conveyance of electors. The High Court took note of the law that a fresh corrupt practice could not be alleged by means of an application to amend the election petition and, after referring to the decisions in Ba/wan Singh v. Lakshmi Narain and others(') and Joshbhai Chunibhai Patel v.

Anwar Beg A. Mirza,(6 ) given before and after the amendment made by Act 47 of 1966, it held that it was the requirement of the law that in addition to proving the hiring or procuring of the vehicles for the free conveyance of any elector to and from any polling station, it was a necessary particulars to allege and prove that the vehicle was used for the conveyance of the electors.

It then noticed paragraph 9 (iii) of the election petition which stated that the appellant, his workers, agents and supporters with his consent, hired and procured vehicles for the free conveyance of electors and committed corrupt practice as provided under sub-section (5) of section 123 of the Act.

It also noticed paragraph 12 which clearly stated that the concise statement of material facts in relation to the aforesaid ground relating to the procuring and hiring of tractors, jeep and car "for free conveyance of voters to the polling stations from their houses" were given in sub-paragraphs (a) and (b).

Those sub-para!!faphs clearly mentioned that the vehicles had been hired and procured for the free conveyance of the electors from their houses to the polling stations on the date of poll.

Reference was also made to Schedule III of the petition for which it was stated in paragraph 12(c) of the petition that the full particulars in regard to the corrupt practice were given in it.

That schedule contained the "particulars of vehicles used for

(2) [1972) 2 S.C.R. 742.

(4) f10751 2 S.C.R. >R4.

free conveyance of electors on the date of election" and contained not only the place from which the electors were conveyed, the time of conwyance, the name of the polling station. the particulars of the Teh1cle, but also the names of the electors who were so conveyed and the names of the workers and agents who conveyed them.

The schedule was an integral part of the election petition, and the original election petition thus contained what was required to be stated by section 83 of the Act, and the amendment was meant to furnish some further particulars in regard to the same corrupt practice.

It is therefore futile to contend that a new corrupt practice was allowed to be inserted by the High Court's order of amendmi:nt.

It may l'.ie pointed out that, as would appear from paragraph 12(c) of the appellant's original written statement to the unamended election petition, he also understood the allegation in the election petition to mean that it related to the use of the vehicles for carrying the electors to and from the polling stations on the date of poll.

It will be recalled that the issues were framed on August 30, 197 4, before the making of the application for leave to amend the election petition, and issue No 2 clearly raised the question whether appellant Balwan Singh, or his workers and agents with his consent, hired or procured the vehicles for the free conveyance of the voters and whether the vehicles so hired and procured "were used for the purpose." The appellant was therefore fully aware that the election petitioners had, inter alia, alleged the user of the vehicles also, and that was why he joined issue for ihe trial of that allegation.

There is thus no justification for the argument to the contrary.

We have already made a mention of issue No. 2 and the High Court's . finding thereon in favour of the election petitioners in respect of tractors No. as UPG 9962 and UTE 5865, and jeep No. UPW 359, for the free conveyance of electors to Naubasta, Jaganpur and Tigain polling stations.

Mr. Blndra has challenged that finding . and we shall proceed to examine his arguments in respect of the Nanbasta polling station.

The election petitioners alleged in the election petition that the appellant, his workers, supporters and agents hired and procured the veh<cles mentioned in Schedule III, with his consent, for the free conveyance of electors from their houses to the polling stations on the date of poll. namely. on February 26, 1974. Particulars of the corrupt practice were given in the schedule.

It was thus stated, in regard to Naubasta polling station, that electors were conveyed there from Bhimpur and Basehi villages, by tractor No. UPG 9962. in a trolly. It was soecificallv stated that electors Munshi Lal (P.W.20). Ram Swanm (P.W.

13) and Misri Lal (P.W. 13) of Bhimpur, and Radhelal and Bahulal (P.W.11) of Basehi were thus taken to Naubasta.

So also, it was stated that some of the workers and a)!ents who conveyed the electors were Bhagwan Singh (P.W. 11) and Babu Singh of Naubasta, and Maikoo of Bhimpur.

The aope_1lant pleaded. in his written statement that the allegation was "totally mcorrect and false," and that "none of the vehicles mentioned in Schedule III was either "procured or hired by the answering A respondent or by any of his workers and agents with his consent for the purposes of carrying voters to and from the polling station, nor any such vehicles were used for the purpose of carrying electors to and from the polling stations on the date of poll." It was not the case of the appellant that tractor No. UPG 9962 was taken to Naubasta polling station in some other connection, or that there was no occasion or question of hiring or procuring it as it was his own property, B or that it was otherwise utilised for his election campaign or for some other work.

He merely stated that the tractor "was not used in connection with the election."

It has been argued by Mr. Bjndra that the tractor really belonged to the appellant, and that his wife was only a 'benamidar' so that there could be no question of "hiring or procuring it whether on payment c or otherwise" within the meaning of sub-section (5) of section 123 of the Act. Reliance in this connection has been placed on Surinder

Nath Gautam v. Vidya Sagar loshi(1).

That tractor No. UPG 9962 belonged to the appellant's wife Smt.

Vimla, has been clearly admitted by him in his own statement in the High Court.

In fact, as has been stated, it was not his case in the 0 written statement that this was not so and that it was his own property and there could be no question of hiring or procuring it.

A. U.

Siddiqui (P.W.2), tax clerk of the office of R.T.O. Kanpur, has proved that the tractor was registered in the name of Smt. Vimla Yadav, wife of appellant Balwan Singh, and that it stood in her name since May I, 1971.

Balwan Singh's statement shows that she was an independent candidate for being coopted as a member of the Zila E Parishad, and it appears from the statement of Vijay Kumar Singh (P. W. 5) that she was her husband's counting agent.

It cannot therefore be urged with any justification that the tractor which belonged to her, must be deemed to belong to her husband, or that it should be inferred that she was a mere 'benamidar' when that was not the appellanes case anywhere.

We must therefore accept it as proved beyond doubt that tractor No. UPG 9962 belonged to the wife of the- F appellant and was not his own property.

There is thus no justification for contending that there could be no question or occasion for hiring or procuring it as it belonged to the appellant.

The word "procure" has been defined in the Century Dictionary to mean "to obtain, as by request, loan, effort, labour, or purchase; get; gain, come into possession of." It has been defined in the Oxford G English Dictionary to mean "to gain, win, get possession of, acquire." This in our view is the correct meaning of the words as used in sub-s. ( 5) of s.123 of the Act.

J[t would therefore amount to "procuring" the tractor if it could be shown that the appellant obtained or got it or arqui red it from his wife.

As has been stated. the tractor did not belong to the apoellant and, in that view of the matter. it is not necessary for us to examine the correctness of the view taken by the Delhi H High Court in Surinder Nath Gautam's case (supra).

(I) 35 E.L.R. 129.

A We shall now examine whether tractor No. UPG 9962 was used

for the free conveyance of any elector to or from the Naubasta polling station on the date of the poll, and whether it was hired or procured for that purpose by the appellant or his agent or by ony other person with his consent.

As has been stated, polling in the constituency" took place on February 26, 1974.

It has been stated by Vijay Kumar Singh (P.W.

5) who was the polling agent of respondent Raghunath Singh, that he saw the workers of the appellant bringing voters to Naubasta polling statio11 in the trolly of tractor No. Ul'G 9962. The trn.; or, according to him, carried the B.K.D. flag and the posters of that party were pasted on the trolly.

When he saw the tractor making the tirst trip to the polling station, he made an oral complaint to the presiding olliccr. It took some time for him to come out of the pc\, ing station, and by thaL time the tractor had gone. But when the tractor came for the second time, he made written complaint Ex. 4 about it to Mr.

Singh who was the presiding officer, and he made an endorsement on it in his presence. The witness has stated further that the presiding officer came out of the polling station and himself saw the tractor as well as the persons who got down from it.

Those persons, according to the witness, were assisted by the workers of the B.K.D. in standing in the queue at the polling booth. "Parchis were given to them from the c:; mp of the B.K.D. which also had that party's Jlag and posters.

According to Vijay Kumar Singh, the tractor and the trolly made only two trips to the polling station, the second trio being at about 3.30 p.m.

The witness has stated further that the presiding oflicer made an enquiry on his complaint, and he must have mentioned the result of the enquiry in his diary. He has stated further that the presiding officer saw the tractor from a distance of about 100

'paces and the registration number could be read from that distance.

The witness was cross-examined at length, but nothing could be brought out to discredit his testimony, except that both the witness and respondent Raghunath Singh were related to one Shashi Bhushan Singh.

That might be the reason why the witness was appointed as the polling agent of respondent Raghunath Singh, but that o'l.stant relationship cannot justify the argument that the witness is unreliable . and his testimony should be rejected for that reason.

The statement of Vijay Kumar Singh has in fact been corroborated in material particulars by the statement of M. P. Singh (P.W. 6) who was an employee of the U.P. Institute of Agricultural Sciences and was the Presiding Officer of the Naubasta polling . station.

He has stated that the aforesaid complaint Ex. 4 was presented to him by Vijay Knmar Singh on February 25, 1974 at 3.30 p.m. and that he made an endorsement to that effect on the complaint. The complaint Ex. 4 was in Hindi but it is not disputed that its English translation reads as follows :

"It is submitted that the workers of Sri Balwan Singh have brought voters in UPG 9962 tractor trolly bearing flag, and the agents of B.K.D. are setting them in queue. It is

/ ,.

entirely illegal. I have already spoken to you in this connection.

But no action has been taken.

Kindly take proper at.:tion."

M. P. Singh has stated that he came out of the polling station, as the polling agent said that he should see things for himself, and also because he was aware of paragraph 60 of the "Instructions to Presiding Orhcers" issued by the Election Commission of India. The wit- R ness admitted that it was the requirement of the instruction that the Presiding Officer of the polling station should forward any complaint • filed before him in regard to the illegal conveyance of voters to the sub-divisional and other magistrate having jurisdiction, with such remarks as he could make on his ''own observation and personal knowledge." He saw on coming out of the polling station that a tractor and trolly were standing at a distance of 500 or 600 yards c from the polling station.

The witness admitted ultimately that the "tractor was standing near the camp of the B.K.D.", he "saw some persons getting down from the tractor and the trolly" and that "those r who got down from the tractor were seen by me (him) going towards the B.K.D. Camp." It may be mentioned that the High Court allowed the counsel for the election petitioners to cross-examine the witness as there was some inconsistency in the statement made by O him in the Court and the report (Ex. 5) made in his diary. We shall

refer to that report in a while.

It was then that the witness stated as follows :

"I had read the whole of the complaint (Ex. 4) while going out.

Having seen the tractor and the trolly outside the polling station near the B.K.D.' camp and having seen £. the persons getting down the tractor and trolly and moving towards the camp, I concluded that everything contained in the complaint (Ex. 4) was correct, and it was for this reason that I mentioned in the report (Ex. 5) that the facts of the complaint were found to be correct.

I stayed outside the polling station for hardly 5 or 6 minutes."

The witness has therefore corroborated the statement of Vijay Kumar

Singh (P.W. 5) in several material particulars.

He has thus st1ted that (i) complaint Ex. 4 was presented to him on February 26, 1974 at 3.30 p.m. by Vijay Kumar Singh, (ii) he read the whole of it,

(iii) he came out of the polling station to see for himself whether the allegation was correct, (iv) he saw that the tractor and trolly were outside the polling station near the B.K.D. camp, (v) persons were getting down the tractor and trolly, and (vi) they were moving towards the camp.

The witness has also stated that he forwarded the complaint to the District Election Officer and that he made report Ex. 5 in his diary to the following effect,-

"22-Serious complaint made by the candidates.

The Congress polling agent made a complaint, that B.K.D. workers were conveying voters to the polling station by a tractor and trolly.

The fact of the complaint were found to be correct and the complaint forwarded."

M. P. Singh was cross-examined in regard to the correctness of" the report, but he was unable to deny its genuineness or correctness. His explanation that he merely concluded after seeing what he has stated, that everything contained in complaint Ex. 4 was correct, but did not notice the registration number of the tractor and did not see any flag or posters on the tractor or the B.K.D. agents setting them in queue, cannot be accepted because of his statement that he went out of the polling station as he considered it necessary to see for himself whether the allegation was correct, and also because of his contemporaneous note in the diary that "the facts of the complaint were found to be correct." We have therefore no reason to disagree with the view taken by the High Court that the statement of M. P. Singh and documents Bxs. 4 and 5 go to prove the correctness of the statement of Vijay Kumar Singh (P.W. 5).

Mr. Bindra has argued that M. P. Singh could not have seen the registration number of the tractor as it was standing at a distance of 500 or 600 yards from the polling station, and that there is no reason to disbelieve his statement to that effect. It would be sufficient for us to say in this connection that Vijay Kumar Singh (P.W. 5) has stated that the Presiding Officer had seen the tractor from a distance of about 100 paces, and his statement to that effect has not been contradicted by any other witness except M. P. Singh (P.W. 6) who, as has been shown, tried to give an inconsistent statement and was allowed to be cross-examined by an order of the High Court.

But even M. P. Singh has stated that he saw the tractor standing near the B.K.D. camp.

Section 130 of the Act prohibited canvassing or exhibiting any notice or sign. within a distance of 100 metres of the polling station, and Mr. Bindra was unable to refer us to any requirement of the law that it was not permissible for a candidate to locate his camp at that distance. Moreover, if it had not been possible for M. P. Singh to see the registration number of the tractor, he would not have recorded in his report Ex. 5 that the facts mentioned in th complaint (Ex. 4) were "found to be correct." The same is the position in regard to M. P. Singh's statement that he did not notice whether the tractor and the trolly did or did not carry any flag or posters. It is pertinent to point out in this connection that the com1 - lain! (Ex. 4) of Vijay Kumar Singh was that workers of the appellant had brought the voters in the tractor trolly, and it would not have been possible for him to "conclude that everything contained in the complaint (Ex. 4) was correct" if he had not seen some distinguishing mark on the tractor or the trolly to connect it with the appellant. It has been stated by Vijay Kumar Singh (P.W. 5) that the persons who got down from the tractor trolly went and took "parchis" from the B.K.D. camp outside the poUing station.

M. P.

Singh (P.W. 6) has also stated that those who got down from the tractor were seen by him going towards the B.K.D. camp. It is not the case of the appellant that they were not the electors of the constituency.

In fact it would not have availed him or his workers to bring those who were not the electors to the polling station.

The election petitioners stated in the petition that the names of some of the electors who were conveyed to polling station Naubasta

wero Babu Lal (P.W.

11) and Radhey Lal (P.W. 12) of village Basehi and Ram Swamo (P.W. 13), Misri Lal

(R.W.

13) and Munshi Lal (P.W. 20) of village Bhimpur. While Babu Lal, Radhey Lal, Ram Swamp and Munshi Lal have been examined by the election petitioners, Misri Lal (R.W. 13) has been examined by the appellant.

We have gone through the statement of these witnesses.

Babu Lal (P.W. 11) has stated that a tractor having a trolly came to Basehi on the date of poll carrying the flag and posters of the B.K._D . and that he travelled in it to the polling station along with others mcluding Radhey Lal (P.W. 12), Kunji Lal, Hira, Babbu Prasad and Raghubar Dayal, and that no fare was demanded, or was pait! vomntarily.

Radhey Lal (P.W. 12) has stated much to the same effect, except that he was not asked to name the other persons who travelled with him in the trolly. He has however stated that Babu Lal had gone with him in the tro!ly. Nothing has been elicited in the cross-examination to shake the testimony of these witnesses. ·

We have also gone through the statements of Ram Swamp (P.W.

13) and Munshi Lal (P.W. 20) of Bhimpur.

Ram Swamp has stated that a tractor and trolly carrying the flag and posters having the •ymbol of "Haldhar Kisan" came to Bhimpur on the date of poll and that he and Munshi (P.W. 20) and Lallu, Sukhnandan and his sons went in it to the polling station to cast their votes and that they were neither asked to pay any fare for travelling by the tractor to Naubasta nor did they voluntarily pay anything.

He has stated that he returned to the village in the same tractor, after casting, his vote.

Munshi Lal (P.W. 20) has deposed much to the same effect, and he has stated that Ram Swamp (P.W. 13) also travelled in the tractor trolly along with the other persons named by him.

The statements of these witnesses have not been shaken in cross-examination.

As has been stated, Misri Lal (R.W. 13) was also named in the schedule to the election petition as the elector who was conveyed in the tractor trolly, and he has been examined on behalf of the appellant.

He has stated that there is a distance of 2 or 2 t furlongs between the "abadi" of Bhimpur and the "abadi" of Naubasta, and that he went on foot to cast his vote at the polling station.

He has stated further that the persons living at Bhimpur had gone to the polling sttion on foot and that it was wrong to say that any tractor came to Bhimpur to transport the voters to the polling station.

The appellant has admitted that he knew Misri Lal for 3 or 4 years, and we are unable to think that the High Court erred in rejecting his statement in face of the other evidence to which reference has cbeen made above.

It was speciJ; ically stated in Schedule III of the election petition that Bhagwan Smgh (R.W .11) and Babu Singh of N aubasta and Maikoo of Bhimpur were the workers and agents of the appellat who conveyed the eectors to the Naubasta polling station.

Of these only one Bhagwan Smgh (R.W.11) has been examined on behalf of Balwan Singh.

He has stated that it was wrong to say that he, Maikoo and

Babu Singh brought any voters in tractor trolly from Bhimpur to Naubasta, or that he got any "parchis" distributed to any voters in the queue at the polling station. It may be mentioned that the election petitioners made it clear that Bhagwan Singh was Bhagwan Singh Thakur.

Bhagwan Singh (R.W.11) has admitted that there . was another Bhagwan Singh in his village.

He has stated that he did not see appellant Balwan Singh during the election, in his village, that he had put the flag and poster of the Congress party at his house and that he and his sons worked for the Congress in the election. As against this, the appellant has stated that he did go to Naubasta and talked to Thakur Bhagwan Singh there who was a sympathiser of

B.K.D.

It therefore appears that Bhagwan Singh (R.W.11) cannot be said to be the worker named in the Schedule of the petition, and nothing can possibly turn on what he has stated.

It will be recalled that Vijay Kumar Singh (P.W.5) who was the polling agent of the Congress candidate at N aubasta had stated in the trial court that he had made an oral as well as a written complaint about the conveyance of voters by the workers of the appellant, to the Presiding Officer.

The appellant also appointed his polling agent at the polling station, but he has not examined him in rebuttal of Vijay Kumar Singh's statement to that effect.

We have gone through the other evidence which has been led by way of rebuttal of the allegation regarding the use of tractor No.

UPG 9962 for the conveyance of electors to Naubasta polling station.

We have already dealt with the statements of Bhagwan Singh (R.W. 11) and Misri Lal (R.W.13) and have given our reasons for rejecting them as unsatisfactory.

The remaining witnesses, to whose testimony our attention has been invited by Mr. Bindra, are Vijai Pal Singh (R.W.14) and appellant Balwan Singh (R.W.34). Vijai Pal Singh is a self-condemned witness for whereas he stated that he was the polling agent of Ayodhya Prasad who contested the election as a Congress (0) candidate and did not see any tractor trolly conveying voters to N anbasta polling station although he remained present at the polling station, he admitted under cross-examination that he was not a polling agent at the Naubasta polling station and had made a false

statement to that effect.

In so far as Balwan Singh (R.W.34) is concerned, it will be sufficient to say that he has admitted that he did not go to Nau bas ta on the date of the poll. He could not therefore disprove the evidence of the election petitioners in regard to the alleged corrupt practice.

He once ventured to state that he came to know on the "next day after polling that . (his) tractor bad gone to the National Sugar Institute" for transporting ''seta" .and "patwar", but: he qualified that statement by saying that the tractor may have been sent there by his wife and that "seta" and "patwar" were obtained before February 26, 1974.

An attempt was made to examine Iqbal Bahadur Dwivedi along with the original gate pass of the Institute, but it was given up by Balwan Singh.

He cannot therefore be said to have rebutted the evidence of the election petitioners. It may be mentioned in this connection that although the important role of conveying voters to Naubasta polling station had been assigned to Babu

BAL WAN SINGH v. PRAKASH CHAND (Shinghal, J.) 3 4 7

Singh and Maikoo in the election petition, they were not examined in A defence.

It may be mentioned that some witnesses of the election petitioners, namely, Babu Lal (P.W.11), Ram Swarup (P.W.13) and Munshi Lal (P.W.20) named certain persons who, accordmg to them, travelled with them to the polling station Naubasta free of cost.

Most of those persons were summoned at the instance of the appellant, but B they were not examined ultimately, and were given up.

The election petitioners have also led evidence to prove that tractor UPG 9962 was procured by appellant Balwan Singh himself for the conveyance of the electors to the Naubasta polling station. Amarpal Singh (P.W.33) has lated in this connection that ?e held a diploma in motor mechamsm and was runnmg a repamng shop at C Rawatpur for motors and tractors.

The appellant was known to him and asked him to do the repair work of the vehicles at the B.K.D. office at Rania for Rs. 25/- per day.

He has stated further that he went to Rania and worked there for 12 days.

One day before polling, the tractor of the appellant was brought to Rania as it had developed some defects.

Balwan Singh's wife Smt. Vimla and his driver were present when he was working on that tractor.

Ram Swarup Sharma, D Babu Singh and the appellant came there at that time and the appellant asked the witness to complete the repairi>lg work as early as possible, and he asked Smt. Vimla to send the trctor to Naubasta with Babu Singh for transporting voters.

Witness has stated further that his partner Ramesh was present at that time.

Ram Swarup Sharma is dead.

Appellant Balwan Singh cited Babu Singh as a defence witness, but gave him up.

He did not examine Ramesh.

E Uma Shankar (R.W.24) was examined to prove that the appellant did not have any election office at the house of Ram Swarup in Rania and no vehicle of the appellant was repaired there, but he has not stated anything about Amarpal Singh, and it is difficult to place reliance on his statement as he was admittedly a worker of the B.K.D. party in Rania.

Rania, according to the witness, had a population of some 3 500 persons and it is difficult to believe that the appellant F had no office there.

The appellant recorded his own statement to the effect, inter alia, that he did not employ Amarpal Singh for repairing any vehicle and did not give any instruction that Babu Singh should take the tractor for transporting voters.

No reason has however been assigned why Amarpal Singh should have tried to implicate the appellant falsely.

The trial Judge has placed reliance on his statement, and we see no reason for taking a different view.

Tractor UPG 9962 belonged to the appellant's wife Smt. Vimla, and it was alleged from the very inception, in the contemporaneous report Ex. 4, that it had been used for the conveyance of electors, some of whom were named in the Schedule to the election petition along with the names of the workers and agents who utilised the tractor for the work. It could be expected of the appellant that he H would give satisfactory particulars and details about any other use of the tractor on the date of the poll if that was within his special knowledge, but he has not done so.

On the other hand, as has been

shown, his attempt to prove that the tractor had been sent to the National Sugar Institute met with dismal failure.

His wife Smt. Vimla did not even appear as a witness and no attempt was made even to examine the driver of the tractor although the appellant has stated that tractor UPG 9962 was driven by a driver whose name was Rangilal.

It is not always possible for an election petitioner to adduce direct evidence to prove that a particular vehicle was hired or procured by the candidate or his agent or by any other person with the consent of the candidate or his election agent, but this can be inferred from the proved circumstances where such inference is justifiable.

Reference in this connection may be made to the decisions of this Court in Bhagwan Datta Shastri v. Badri Narayan Singh and others(') and Shri Urned v. Raj Singh and others(2 ). In the present case, it has been proved by clear and reliable evidence that tractor UPG 9962 was used for the conveyance of electors to and from the Naubasta polling station, and that it was so used by the workers of the appellant.

Then there is the further fact that the voters were conveyed free of cost.

It has also been proved that the tractor belonged to the appellant's wife and he could not succeed in his effort to prove that it was used elsewhere or for some other purpose.

In these facts and circumstances, it would be quite permissible to draw the inference that the tractor had been procured by the appellant for the free conveyance ©f the electors.

For the reasons mentioned above, we have no doubt that the finding of the High Court that appellant Balwan Singh procured tractor No. UPG 9962 with trolly and that they were used for the purpose of transporting the voters to the N aubasta polling statton, and he thereby committed a corrupt practice within the meaning of section 123(5) of the Act, is correct and must be upheld.

In view of this categorical finding it is not necessary for us to examine the allegation regarding the hiring or procuring of tractor No. UTE 5865 and jeep No. UPW 359 for the free oonveyance of electors to two other polling stations.

It may be mentioned that in arriving at the above finding we have taken due note of the view expressed by this Court in Ram A wadesh Singh v. Sumitra Devi and others(') in regard to the generation of factious feelings during elections and their continuance even after the election enabling the parties to produ9e a large number of witnesses some of whom may be seemingly disinterested, and the view expressed in Rahim Khan v. Khurshid Ahmed and others(<) that an election once held should not be treated in a light-hearted manner and the court should insist on clear and cogent testimony compelling it to uphold the corrupt practice alleged against the returned candidate.

So also, we have noticed the view expressed in Baburao Ragaji Karemore and others v. Govind and others(') that the Court should

(1) A.T.R. 1960 S.C. 200.

(2) A.I.R. 1975 S.C. 43.

(4) 1975 I S.C.R. 643.

examine the evidence having regard to the fact that where the electorate has chosen their candidate at an election, their choice ought not to be lightly upset.

We have also taken notice of the view expressed by Ray C.J. in Smt. Indira Nehru Gandhi v. Raj Narain(') that in an election contest it is the public interest, not the parties' claims, which is the paramount concern.

Mr. Bindra has placed considerable reliance on these decisions.

But, as has been shown, the finding of the High Court regarding the aforesaid corrupt practice is based on clear, cogent and convincing evidence and there is no justification for interfering with it.

Mr. Bindra has laid much stress on the fact that the appellant was successful at the election to the U .P. Legislative Assembly from another constituency in 1957, but his election was set aside on the ground, inter alia, that he and/or his election agent and/or other persons with his consent, had committed corrupt practice, including the corrupt practice of hiring a tractor for the conveyance of electors. He has argued that in view of this Court's decision against him in 1'alwan Singh v. Shri Lakshmi Narain and others (supra) he could not possibly have taken the risk of committing another similar corrupt practice at the election in question.

The argument is based on mere conjecture and cannot disprove or rebut the clear, cogent and reliable evidence on which the appellant has been held guilty of committing the cor- . rupt practice in this case.

Mr. Bindra tried to argue further that the High Court committed an illegality in setting aside the appellant's election without finding that the result of the election had been materially affected thereby.

The argument is misconceived, for it is not the requirement of section E 100 ( 1) (b) which has been found to be applicable to the corrupt practice in question, that the High Court should declare the election of the returned candidate to be void only if the result of the election has been materially affected by it.

Another asgument of Mr. Bindra was that the corrupt practice in question should not have been found to have been committed as the election petitioners did not examine themselves during the course of the trial in the High Court.

There was however no such obligation on them, and the evidence which the election petitioners were able to produce at the trial could not .have been rejected for any such fanciful reason when there was nothing to show that the election petitioners were able to give useful evidence to their personal knowledge but stayed away purposely.

In the result, the appeal (Civil Appeal No. 775 of 1975) filed by Balwan Singh fails and is dismissed with costs.

The cross-appeal (Civil Appeal No. 1107 of 1975) is dismissed as not pressed, but without any order as to the costs.

P.B.R.

(1) A.LR. 1975 S.C. 299.

8-L522SC!/76

Appeal dismissed.

BALWAN SINGH

PRAKASH CHAND & OTHERS

P. K. GOSWAMI

Representation of People Act, 1951

S. 123(5)

s. 123(5)

s. 123

s. 123(5)

s. 12(5)

[1975] 1 S.C.R. 643

s. 83

Allahabad High Court

N. S. Bindra

R- D. Uppadhaya

M.

Srivastava

Yogeshwar Prasad

Rani Arora

Bir Bahadur Singh

N. S. Bindra

K. C. Agarwala

R. D. Uppadhaya

M. M. L.

Srivastava

SHINGHAL

Representation of People Act, 1951

Balwan Singh

Pradesh Legislative Assembly

Sarwan Khera constituency

April 9, 1975

section 123(5)

Prakash Chandra

Jai Chandra

Balwan Singh

Bhartiya Kranti Dal

Ragunath Singh

Congress (R) party

2 of the Congress (R) party who secured 31,008 votes.

Prakash Chandra

BAL WAN SINGH V. PRAKASH CHAND

Schedule III

Schedule III

section 83

Schedule III

Schedule III

Schedule III

October 10, 197

Schedule V

Maubasta

aganpur

section 123(5)

Prakash Chandra

Yogeshwar Prasad

Balwan ll Singh

Bindra

the Code of Civil Procedure

section 83(l)(c)

November 27, 1974

Schedule III

Schedule III

Ccndtict of Election Rules, 1961

section 123

Schedule III

[1972) 2 S.C.R. 742

section 83

August 30, 197 4

Naubasta

Jaganpur

Tigain

Blndra

Mr. Blndra has challenged that finding .

Schedule III

February 26, 1974

Bhimpur

Basehi

Munshi Lal

Ram Swanm

Misri Lal

Radhelal

Bahulal

Bhagwan Singh

Babu Singh

Maikoo

Schedule III

Bjndra

section 123

Vimla

U.

Siddiqui

Vimla Yadav

Zila E Parishad

Vijay Kumar Singh

Delhi H High Court

Surinder Nath Gautam

Raghunath Singh

Singh

B.K.D.

Vijay Kumar Singh

Shashi Bhushan Singh

M. P. Singh

U.P. Institute of Agricultural Sciences

Naubasta polling . station

Vijay Knmar Singh

February 25, 1974

M. P. Singh

Election Commission of India

Vijay Kumar

Singh

Section 130

M. P.

Singh

Babu Lal

Radhey Lal

Ram Swamo

Babu Lal

Ram Swamp

Munshi Lal

Kunji Lal

Hira

Babbu Prasad

Raghubar Dayal

Babu Lal

Munshi

Lallu

Sukhnandan

Misri Lal

Schedule III

Bhagwan Smgh

N aubasta

Maikoo

Babu Singh

Bhagwan Singh

Bhagwan Singh Thakur

Thakur Bhagwan Singh

Vijai Pal Singh

Balwan Singh

Ayodhya Prasad

Iqbal Bahadur Dwivedi

Shinghal

Singh

Maikoo

Ram Swarup

Amarpal Singh

C Rawatpur

Rania

Ram Swarup Sharma

D Babu Singh

Naubasta

Ramesh

Ramesh

E Uma Shankar

Ram Swarup

Amarpal Singh

Rangilal

section 123(5)

Ray

U .P. Legislative Assembly


D. D. SURI

A. K. BARREN & ORS.

February 6, 1976

[V. R. KRISHNA IYER, A. C. GUPTA AND N. L. UNTWALIA, JJ.] Prerention of Corruption Act, 1947-Sec. 5(2)-All India Services (Disci pline and Appeal) Rules 1955-Rule 7(3)-Suspension order without following ad1ninislrative instructions whether valid-Meaning of investigation-lnquiry

and trial-Whetller suspension co1nes to an end on retiren1ent.

The appellant was an erstwhile member of the Indian Administrative Service in the cadre of the State of Orissa.

At the relevant time in the year 1967, he \Vas serving as Commissioner of Land Reforms, Orissa. According to the appellant he had disputes, differences and animosity with respondent No. 1, the Chief Secretary to the Government of -Orissa and respondent No. 2 who was at . the relevant time Director of Vigilance and Additional Secretary to the Government of Orissa. The First Information Report was lg1d again~ t the appellant under s. 5(2) of the Prevention of Corruption Act, 1_947, on 24·11-1967. The appellant's house was searched on 27·11-1967. An order_of suspension \Vas made against the appellant by the Government of Orissa 'on 28-11-1967 under rule 7(3) of the All India Services (Discipline and Appeal) Rules, 1955.

The Writ Petition file<l by the appellant against his order of suspension and investigation was dismissed by the High Court in lirnine.

This Court allowed an appeal filed by special leave by the appellant against the High Court judgment and directed the High Court to admit and dispose of the petition in accordance with law.

The State Government approached the Central Government to accord sanctiori for prosecution of the appellant. In spite of reminders, the Central Government neither accorded the sanction nor refused it. Appellant was compu '.-

s~1rily retired by the Govrnment in 1971.

Thereafter, charge-sheet was submitted against him in the Court of the Special Judge, Sambalpur. The trial concluded but becaus~ of the stay order passed by this Court judgn1ent could not be delivered. Against the order of the compulsory retirement, the appe11ant filed a writ petition in the Delhi High Court which was dismissed by a learned single Judge and against which a Letters Patent appeal is pending. 'rhe Orissa High Court dismissed the writ petition of the appellant on the ground of it having become inftuctuous since the appellant was no longer in suspension since he \Vas compulsorily retired. The High Court also did not think it necessary to examine the legality of the investigation against the appeliant as chargesheet had already been submitted. In an appeal by special leave the appellant contended : The suspension order may be quashed on the following grounds :

(1) It was passed without follov; iing the various Governmental instructions on the point.

(2) The order \Vas in violation of rule 7 (3).

(3) The order was malafide.

HELD : ( 1) It is true that all the instructions contained in the circulars issued by the Central Government do not seem to have been strictly followed.

That would, however, not invalidate or nullify the order of suspension made under rule 7 (3). In dealing with the cases of high officers of the Administrative Service care ought to have been taken to follow the instructions as far as possible.

On the facts of the present case. however. failure to follow the instructions fully~ does not render the order of suspension per se invalid. [353GHl

(2) Under rule 7 (3) a member of the Service in respect of or against whom an investigation, enquiry or trial relating to a criminal charge is pending, may at the discretion of the Government be placed under suspension. The

expression in\'estigation. enquiry and trial are well known in the realn1 of the criminal Jw under the Criminal Procedure Code.

In the present cas~, the rirst Information Report was lodged and the search warrats were. issued before the sust'fension orders were passed.

Most of the .allegations. against te appellant \\'ere in relation to his alleed acts of corruption. ad misuse o[ his official position.

Whether the allegations are true or false 1s irrelevant. Order under rule 7<)) was, therefore, legal and valid.

[354A-E]

(3) The suspension order came to an end by the compulsory retirement of B the appellant. 1\fter retirement from servic~ e could no longer be deeed to be under susriension.

Since we are remitting the case back to the Hrgh

Coirt we permit the appellant to raise the question of his salary and emoluments during the suspension period th be raised in the High Court. The counsel for the appellant, however, assured this Court that if .the appellant would be exonera', ed of the charges levelled against him and acquitted in the criminal proceedings the State Governn1ent would pay him his full pay and allowances for the periDd of suspension.

[354G-H, 3558-C]

(4) \Ve do not think it advisable to decide the point of malafide in the C absence of the judgment in the criminal cases.

Since the two matters are so interwoven and interconnected that !t \vould be exoedient for the High Court to decide this issue after the Judgment is delivered in the criminal trial.

[3550-E]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 292 of 1973. (Appeal by special leave from the judgment and order dated the 0 25-4-1972 of the Orissa Hig_h Court of Judicature at Cuttack in 0.J.C. No. 82 of 1968).

S. N. Andley and A. Subbarao for the appellant.

M. C. Blumdare and B. Parthasarathi for respondent No. 3.

M/s. S. N. Prasad and Girish Chandra for respondent No. 4.

The Judgment of the Court was delivered by E

UNTWALIA, J.-The appellant in this appeal by special leave is Shri D. D. Suri-an erstwhile member of the Indian Administrative

Service in the cadre of the State of Orissa.- Shri A. K. Barren, I.A.S. the Chief Secretary to the Government of Orissa at the relevant time was impleaded as respondent no. l. He died during the pendency of this appeal.

Therefore, his name is directed to be expunged.

For F the sake of convenience, however, he will be referred to hereinafter in this judgment as respondent no. l. Shri S. K. Ghosh, l.P .S. respondent no. 2 was at the relevam time Director of Vigilance and Additional Secretary to the Government of Orissa in the Political arid Services Department.

He has since retired and no notice of this appeal could be served on him.

Even so the appeal proceeded to hearing as for the disposal of this appeal, his appearance was n6t necessary. The G State of, Orissa is respondent no. 3, and the Government of India is respondent number 4.

Respondents 5 and 7 are other officers of the Government of Orissa.

It is an unfortunate protracted litigation with a chequered history.

Yet we do not find it possible to bring it to conclusion by onr judgment.

The appellant was appointed to the Indian Administrative Service and joined as an Additional District Magistrate in the State of Orissa in November, 1950.

According to hiS'case dne to some actions which he took against some big political persons, he incurred their displeasure

in the year 1952.

Sometime after he came on deputation to the centre but went back to Orissa in April, 1965. At the relevant time in the year 1967 he was serving as Commissioner of Land Reforms, Orissa.

According to his case he had disputes, differences and animosity with respondent no. 1 and later with respondent no. 2 also.

The appellant by stating very many facts, which are not necessary to be enumerated in this judgment endeavoured to make out a case of male fides against respondents l and 2 and asserted that he was put to trouble and unwarranted and illegal actions were taken against him by or at the instance of respondents 1 and 2.

A First Information Report was lodged and Sambalpur Vigilance P.S. Case No. 23/1967 was instituted against the appellant on November 24, 1967 under section 5(2) of the Prevention of Corruption Act, 194 7.

An application for search warrant was made before the Additional District Magistrate, Sambalpur on the same date i.e. 24-11-1967 and a search warrant was issued.

The appellant's house at Cuttack was searched on and after 27-11-1967.

An order of suspension was made against the appellant by the Government of Orissa on the 28th November, 1967 under Rule 7(3) of the All India Services (Discipline and Appeal) Rules, 1955-hereinafter referred to as the Rules.

The appellant filed a writ petition (OJC 8211968) in the Orissa High Court in January, 1968 to challenge the order of suspension and the investigation made and proceeded against him.

The writ application was dismissed by the Orissa High Court in limine.

Civil Appeal No. 679 /70 filed by special leave against the order of the OriSsa High Court was allowed by this Court on 22-10-1970.

The writ application was directed to be admitted and disposed of in accordance with law.

Certain subsequent developments and events are necessary to be noted.

The State Government moved the Central Government on November 23, 1968 after stating the facts in detail to accord sanction for prosecution of the appellant as the materials collected during investigation revealed a prima facie case in relation to the charges of corruption and misuse of his official position by the appellant.

In spite of reminders the Central Government rieitber accorded sanction for tbe prosecution of the appellant nor refused it.

Without sanction of the Central Government no Charge-Sheet could be submitted against the appellant for his prosecution so long he remained in government service.

It seems, however, that the appellant was compulsorilv retired by the appropriate government on June 9,

1971. Thereafter on November 8, 1971 Charge-Sheet was submitted against him in the Court of the Special Judge, Sambalpur.

In Transfer Petition No. 2/73 this Court transferred the case to the file of another Special Judge.

On the splitting up of the original case the trial of several cases proceeded against the appellant in the Court of the Special Judge.

The trial concluded but because of the stay order passed by this Court,

judgment could not be delivered until the disposal of this appeal and LPA 3/73 pending in the Delhi High Court.

Against the order of compulsory retirement, the appellant fifed a wrii petition in the Delhi

High Court.

It was dismissed by a learned single Judge on Novem- A ber 16, 1972.

LPA 3/73 is directed against the said order of dismissal.

A Bench of the Orissa High Court by its order :lated chc 25th April, 1972, the order under appeal, has again dismissed the writ petition (OJC 82/1968) as being infructuous. It has taken the view that since the appellant has already retired from service he is no longer B under suspension.

Therefore, the legality of the suspension order is not necessary to be examined.

Nor did the High Court think it necessary t_o examine the legality of ilie investigation against the appellant as Charge-Sheet had _already been submitted.

Mr. S. N. Andley, learned counsel for the appellant asked us to quash the suspension order and strenously urged the following three grounds :

(I) That it was passed without taking the various preliminary steps of preliminary enquiry or investigation as was necessary to be done in view of the various governmental instructions.

(2) That the order was not warranted by and was in violation of Rule 7 (3) of the Rules.

( 3) That the charges levelled against the appellant were all baseless, frivolous and false.

They were levelled and the suspension order was made mala fide.

In support of the first submission our attention was drawn to the various executive instructions issued by the Central Government as also the State Government of Orissa to show as to how and in what manner preliminary steps had to be taken and enquiry made by the governmental authorities concerned before putting a government ser

vant and especially a member of the Administrative Service under suspension.

Counsel submitted that nothing was done in accordance with those instructions before the lodging of the First Information Report on November 24, 1967. The action was taken male fide in all haste without observing the requirements of the law as contained in the executive instructions.

On the other hand, Mr. M. C.

Bhandare, counsel for the Government of Orissa pointed out that the Vigilance Department of the State Government had made preliminary enquiries and then taken action. We do not consider it necessary to discuss in any detail or record any definite finding one way or the other in respect of this bone of contention between the parties.

We may only observe that all instructions contained in the various letters and circulars of the Central Government do not seem to have been strictly followed.

But that will not invalidate or nullify the order of suspension made under Rule 7(3) of the Rules.

In dealing with the. cases of high officers of the Administrative Service, care ought to have been taken to follow the instructions as far as possible.

Yet on the facts of this case we are not prepared to hold that failure to follow the instructions fully, per-se, made the order of suspension invalid.

Sub-rule 1 of Rule 7 of the Rules provides for the placing under suspension a member of the service against whom any disciplinary proceedmg has been initiated.

Under that sub-rule without the initiation of the disciplinary proceeding an order of suspension could not be made.

Under sub-rule 2 a member of the service who is detained in official custody for a period longer than 48 hours is to be deemed to have been suspended by the government concerned.

We shall now read sub-rule 3 of Rule 7.

'A member of the Service in respect of, or against whom. an investigation, inquiry, or trial relating to a criminal charge is pending, may, at the discretion of the Govermnent under which he is serving, be placed under suspension until the termination of all proceedings relating to that charge, if the charge is connected with his position as a Government servant or is likely to embarrass him in the discharge of his duties or involves _moral turpitude."

Under the sub-rule aforesaid it is clear that a member of the service can be placed under suspension if against him an investigation, inquiry or trial relating to criminal chages is pending.

The expression 'investigation', 'inquiry', or 'trial' are we11-kno\vn in the realm of the criminal Jaw under the Code of Criminal Procedure.

In the instant case when a First Information Report was filed against the appellant and steps were taken for obtaining a search warrant for the search of his house, investigation within the meaning of Rule 7 (3) became pending on and from November 24, 1967.

The suspension order, therefore, made on November 28, 1967 was well within the ambit of the power of the government under the said provision of law. Most of the charges levelled against the appellant, and at this stage, we do not know whether they were right or wrong, true or false, were in relation to his alleged acts of corruption and misuse of his official position.

In our view the making of the suspension order against the appellant under rule 7(3) of the Rules was legal and valid.

But did it come to an end, if so, when? The rule provides that the suspension order may last "until the termination of all proceedings relating to" the charges.

Appellant's counsel submitted that, as mentioned in one of the letters of the State Government to the Central Government, the investigation was complete on November 23, 1968, hence on the termination of the investigation the suspension order terminated.

We have no difficulty in rejecting this argument as unsound.

Under rule 7 (3) the suspension order can be made to continue until the terminanation of all proceedings viz. investigation, inquiry or trial which may follow the investigation.

Strictly speaking, the investigation could not be said to be complete until the submission of the Charge-Sheet.

Factual completion of the investigation in November, 1968 did not terminate all proceedings in relation to the charges levelled against the appellant.

But obviously the suspension order came to an end by the compulsory retirement of the appellant.

After retirement from service he could no longer be deemed to be under suspension.

During the hearing of the appeal and in view of certain new stands A taken in the , petition filed in this Court by the appellant, an interesting point cropped up and that is this.

What was the effect of the appellant's compulsory retirement on his suspension ? He was not prosecuted before his retirement. What is to be the effect of his retirement on the appellant's pay and allowances for the period of his suspension viz. between November 28, 1967 and June 9, 1971.

Does rule 9 of the Rules cover the appellant's case? If so, is he entitled to an order B in his favour for paying him full pay and allowances for the said period because he was maoe to compufsorily retire without any stigma and not by way of punishment? We did not feel persuaded to decide this aspect of the matter for the first time in this appeal.

Since we are remitting the case back to the High Court, we permit the appellant to raise this point there, if necessary, by amendment of his writ petition.

We may, however, hasten to add that the counsel for the State of C Orissa assured us that if the appellant would be exonerated of the charges levelled against him and acquitted in the criminal proceedings, then the State Government will pay him his full pay and allowances for the period of his suspension.

Evidence at the trial is over and only the judgment has to be delivered.

Without the aid of the jucfgment in the criminal cases, we did D not find it advisable or possible to decide the third point urged on behalf of the appellant.

On the materials in the records of this case, it will not be possible to say that the charges levelled against the appellant were false and that action was 'taken against him mala fide.

The two matters are so interwoven and interconnected that we think it expedient to leave the matter for a fresh decision by the High Court after the judgment is delivered at the criminal trial which is already E concluded.

We vacate the order of stay made by this Court and direct the Trial Judge to deliver his judgment without any further delay.

The High Court, if necessary, will'go into the question of mala fides when the case goes back to it on remand and it will do so taking note, inter alia, of the judgment in the crffitinal cases.

Nothing we have said in this judgment is meant to prejudice either F party in the disposal of the letters patent appeal pending in the Delhi High Court in which the appellant is persuing his challenge to the order of his compulsory retirement.

But it will he desirable, may, necessary to dispose of LPA 3/1973 pending in the Delhi High Court at a very early date so that the judgment may be made use of by either party, if necessary, in the Orissa High Conrt in aid of the disposal of the case being remitted back by us to that court G

In the result we allow this appeal, set aside the order of the High Court, remit the case back to it for fresh disposal in the light of this judgment.

We make no order as to costs.

P.H.P.

Appeal allowed.

D. D. SURI

A. K. BARREN & ORS

February 6, 1976

V. R. KRISHNA IYER

A. C. GUPTA

N. L. UNTWALIA, JJ.

Prerention of Corruption Act, 1947

Sec. 5(2)

s. 5(2)

Prevention of Corruption Act

An orderof suspension \Vas made against the appellant by the Government of Orissa 'on 28-11-1967 under rule 7(3) of the All India Services (Discipline and Appeal) Rules, 1955.

Central Government

Court of the Special Judge, Sambalpur

Delhi High Court

Orissa High Court

Jw under the Criminal Procedure Code

CIVIL APPELLATE JURISDICTION

S. N. Andley

A. Subbarao

C. Blumdare

B. Parthasarathi

S. N. Prasad

Girish Chandra

E

UNTWALIA

D. D. Suri

A. K. Barren

S. K. Ghosh

G State of, Orissa

Government of India

Government of Orissa

Orissa

section 5(2)

Prevention of Corruption Act

28th November, 1967

OriSsa High Court

November 23, 1968

June 9,

1971

November 8, 1971

Delhi

High Court

Novem- A ber 16, 1972

S. N. Andley

State Government of Orissa

November 24, 1967

M. C.

Bhandare

Code of Criminal Procedure

November 28, 1967

June 9, 1971

State of C Orissa


STATE OF MADRAS v.

A. M. NANJAN AND ANR.

February 9, 1976

[P. K. GOSWAMI AND s. MuRTAZA FAZAL Au, JJ.]

Land Acquisition Act, 1894-Section 23-Compensation-Quantum of- Increasing the an1ount of con1pe11sation appreciating the evidence oral and documentary, the admitted rise of prices of land,• the advantages and facilities of the land lvith reference to its location etc. is within the well recognised 4 principles of fixing the con1pensation and is not based on speculation or con ; ecture-Awards for otherlands are in the nature of admission of the value of the land and admissible in evidence.

In respect of an area of 18.34 acres in Mulligoor village, Nilgiris District belonging to the respondents and acquired by the appellant for the purpose of hydroelectric scheme at Kundah in May 1957 the land acquisition officer awarded a compensation of Rs. 500 /- per acre as against its purchase price of Rs. 230/- per acre in February 1951; but on a reference the Subordinate Judge raised it to Rs. 1800/- per acre. On appeals by the Appellant/State and the Respondent/Claimant, while dismissing the State appeal and partly allowing the respoftdent's appeal, the High Court of Madras by its common judgment raised the rate of compensation to Rs. 3000/- per acre.

In the two appeals by certificate, the appellant State contended (i) that raising the rate of compensation was without any basis and merely on speculation, (ii) that the rates at which the adjoining lands were sold for house sites cannot be safe-guides; (iii) that allowing flat rate of Rs. 3000/- per acre without due regard to the quality or classification of the land is bad in principles of fixing con1pe•sation.

Negativing the contentions of the State and dismissing the apj, eals, the Court

HELD ; (I) The awards given by the Land Acquisition Collector are at least relevant material and may be in the nature of admission \N'ith regard to the value of the land on behalf of the State and if the land involved in the awards is comparable land in the reasonable proxiriiity of the acquired land, the rates fund iil the said documents \vould be a reliable material to afford a basis to work upon for determination of the compensation on a later date. The awards can be taken as safe guides, and are admissible in evidence for the determination of con1pensation.

[358EFJ

(2) In the instant case, from an exan1ination of the evidence and the documents and having regard to the location, advantages and facilities of the lnnd and the admitted rise of price of the land between the years 1951 and 1957, it cannot be said that the High Court either departed from any well recognised prin.:iple in determining or comn1itted an error in raising the amourit of compensation.

[359A-B]

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1212 and 1213 of 1968.

From the Judgment and Decree dated 2-5-1960 of the Madras High Court in Appeals Nos. ZO and 61 of 1960.

H Lal Narain Sinha, Solicitor General, A. V. Rangam and Miss A.

Subhashini for the Appellant.

M. Natesan and Mrs. S. Gopalakrishnan for Respondents.

MADRAS v. A. M. NANJAN (Goswumi, !.) 357

The Judgment of the Court was delivered by

GosWAMI, J.-The only question that arises for consideration in these appeals by certificate of the High Court of Judicature at Madras relates to the quantum of compensation with regard to acquisition of 18.34 acres of land in Mulligoor village, Nilgiris District, belonging to the respondents.

The land in question was acquired for the purpose of a hydroelectric scheme at Kundah.

A Notification under section 4(1) of the Land Acquisition Act, 1S94, was allfy published on May 1, 1957.

This land was purchased by the respondents' father by a sale deed (Ext. B-1) of February 22; 1951, for a consideration of Rs. 4218/4/- from the Nilgiris Wattle Plantations Limited.

The rate at which this purchase was made was Rs. 230/- per acre. The Collector awarded compensation at the rate of Rs. 500/- per acre.

On a reference at the instance of the claimants (respondents herein) the Subordinate Judge raised the compensation to Rs. 1800/- per acre.

The State as well as the claimants appealed to the High Court against the judgment and decree of the Subordinate Judge.

By a common judgment the High Court dismissed the State's appeal and partly allowed the claimants' appeal by raising the rate of compensation to Rs. 3000/- per acre.

That is how the two appeals are filed by the State with certificate from the High Court.

The learned Solicitor General appearing on behalf of the State submits that the High Court erred in law in raising the rate of compensation without any basis and merely on speculation.

He particularly draws our attention to an observation of the High Court in the E judgment to the effect :

" . . . the Court has ncessarily to speculate as to how much the value has increased.

Sometimes the Court is obliged to indulge in fair measure of conjecture in regard to the fixation of values . ..... "

However, when we read the entire obscr,·::Jion of the High Court with regard to the aspect of compensation we are unable to hold that the High Court based the compensation on mere speculation or conjecture.

The High Court has clearly observed that:_

" ...... fortunately in this case our decision need not depend upon mere speculatiOll Q!C conjecture as there are materials which as far as possible afford a correct basis for fixing the approximate market value".

The learned Solicitor General next draws our attention to the various sale deeds produced in the case and took objection to the High Court's placing undue importance on two awards (Exts. B-1 O and B-11) dated September 27, 1956 and March 30, 1957, respectively.

According to the learned Solicitor General these two awards are with regard to land at a place called Kil Kundah about ten miles from the H acquired land and cannot be said to be comparable land for the purpose ef assessment of compensation.

According to the first award

SUPREME COURT REPORTS

[1976] 3 S.C.R.

(B-10) the rate per acre was Rs. 3000/- and according to tbe second one (B-11) the rate awarded was Rs. 5263/- per acre.

He also submits that the Sale deed (Ext. A-7) of September 27, 1955, which appertains to land in the identical village Mulhgoor and which shows tbe consideration of Rs. 5000/- for one acre of land should not have been taken as a guide in view of the fact that the area was small with a large number of wattle trees and it was a speculative tn\Rsaction.

There are three other sale deeds which the High Court took into consideration, namely, Exts.

A-8, A-9 and A-10 which were transactions between March 1956 and June 1950. The land involved in these transactions was situated in Bikatti village about fou:· miles from the acquired land.

The village itself is only 2 to 4 furlongs from Mulligoor.

The rate per acre for these lands in 1956 was Rs. 6000/-.

The learned Solicitor General submits that these lands were sold as house sites and therefore cannot be safe-guides for the type of the land acquired.

The learned Solicitor General also objected to the flat rate of Rs. 3000/- granted by the High Court" without due regard to the quality or classification of the land.

He points out that even in the award Ext. B-10 all the lands were not priced at the same rate per acre.

The rates varied from "Rs. 3001to Rs. 5263 /- per acre considering the fertility of the soil of the fields, their location, importance and registration statistics .... ". Even so, the Land Acquisitlon Officer fixed the value of the land at Rs. 3000/-per acre in th: <tiJ '•ward taking into consideration several sale deeds.

He even fixed Rs. 5000/- per acre for .30 acres of land having regard to the bona fide sale transaction of a portion of the land covered by the same

r, urvey number.

We are unable to accept the submission that the awards in question cannot be taken as safe-guides in the matter of determination of compensation.

As a matter of facts these awards given by the Collector are at least relevant material and may be in the nature of admission with regard to the value of the land on behalf of the State and if the land involved in the awards is comparable land in the reasonable proximity of the acquired land, the rates found in the said documents would be a reliable material to afford a basis to work upon for determination of the compensation on a later date.

The awards, therefore, cannot be dismissed as inadmissible for the purpose of determination of the compensation.

Mr. N atesan, learned counsel for the respondents. bas taken us through the evidence of the witnesses examined on behalf of the appellant and we find from a perusal of. the same tha.t the High Court cannot be said to take an erroneous view when 1t observed as follows:-

"But witnesses examined on the side of the Government have admitted that even close to Survey No. 9 I I the acquired land, there are facilities like bus-stop~, shops et?.

From the evidence it is fairly clear that Mulhgoor area 1s not less prominent than Kil-Kundah or iatti area ..... .

Kil-Kundah, Bikatti and Mulligoor are withm short distance

MADRAS v. A. M. NANJAN (Goswami, /.) 359

of one another and, it would not be proper to weigh the comparative value of the lands in the locality on delicate scales. It could reasonably be said that they are all of about equal value".

We are satisfied after examination of the evidence and the documents that having regard to the location, advantages and facilities of the land and to the admitted rise of price of land between the years 1951 and 1957, it cannot be said that the High Court was far wrong in raising the compensation to Rs. 3000/- per acre in this case.

We are also satisfied that the High Court has not departed from any wellrecognised principles in determining the compensation.

In the result !he appeals fail and are dimissed with one set of costs.

S. R.

Appeals dismissed.

STATE OF MADRAS

A. M. NANJAN AND ANR

February 9, 1976

P. K. GOSWAMI

Land Acquisition Act, 1894

Section 23

Mulligoor village

Nilgiris District

Kundah

High Court of Madras

Madras High Court

H Lal Narain Sinha

A. V. Rangam

A.

Subhashini

M. Natesan

S. Gopalakrishnan

GosWAMI

section 4(1)

May 1, 1957

Nilgiris Wattle Plantations Limited

September 27, 1956

March 30, 1957

Mulhgoor

Bikatti village

Mulligoor

N atesan

Bikatti


STATE OF PUNJAB AND ANR. v.

IQBAL SINGH

February 12, 1976

[A. C. GUPTA AND JASWANT SINGH, JJ.]

B f'iiujab ('iiil Service Rules-r. 6.4-Retired Goverrunent servar1t-Pensio11

and death-cum-retiren1e111 gratuitv reduced by Govenunent on the ;::round that service record not satisfactory-Pension, if a bounty paid by Go1'ernmentlf property under Arts 31(1) and 19(1)(/) of the Constifution-lf reasonable oppr, rlunity of 1naking defence should be given before reducing the pension.

Constitution of l ndia-Art. 311 (2 )--Applicability of.

Purporting to act under r. 6.4 of the Puniab Civil Service Rules. the State imposed a cut of 5 per cent on the pension and death-cun1-retirement gratuity of the respondent, who \Vas a retired government servant, on the ground that his service record was not satisfactory. The High Court allowed the respondent's \vrit petition challenging the decision of the Governmellt.

Dismissing the appeal of the State,

HELD : The ground that superannuation pension is a bounty and is given as an act of grace is not available to the appellant. In Deoki Nandan Prasad

v. The State of Bihm, [197I] Supp. S.C.R. 634, it was held by this Court (1) that pension is not a bounty payable, on the sweet will and pleasure of te (jovernment and the right of a Government servant to receive it is property under Art. 31 ( 1) of the Constitution, and so the State cannot withhold the same by a mere executive order; and (2) the claim to pension is property under Art. 19(1) (f) of the Constitution and is not saved by .cl. (5) of Art. 19.

[362C-D]

(2) Though the impt1gned order imposing the cut in pension and gratuity is not one of reduction in rank falling within the purview of Art. 311 (2), yet there can be no doubt that it adversely affected the respondent and such an order could not have been passed without giving him a reasoNable opportunity of making his defence.

[362G]

State of Punjab v. K. R. Erry & Sabha;:: Rai Mehta [19731 2 S.C.R. 405. applied.

(3) M. \Tarc1.1hnachar '" The State of Mysore [1960} 1 S.C.R. 981, is inapplicable to this case because the point as to whether an opportunity to show cause was to be afforded to a retired Government servant before applying the cut in his pension in view of the principle.if natural justice of audi alteram partem was never urged or gone into in that case, nor was the question whether pension was a bounty or property arose in that case.

[364 D-E]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1203 of 1968.

From the order dated the 4-4-1967 of the Punjab and Haryana High Court in L.P.A. No. 104 of 1967.

0. P, Sharma, for the appellant.

H. K. Puri and M. C. Dhingra, for the respondent.

The Jndgment of the Court was delivered by

JASWANT SINGH, J.-This appeal by certificate of fitness granted by the Punjab and Haryana High Court is directed against the judgment dated April 4, 1967 of a Division Bench of that Court passed in Letters Patent Appeal No. 104 of 1967 whereby the judgment and order dated December 19, 1966 of N arula, J. (as he then was) in Civil Writ Petition No. 298 of 1966 was affirmed.

PUNJAB v. IQBAL SINGH (Jaswant Singh, J.) 3 ti l

It appears that the respondent joined the Punjab Education Department (Class II) Service by direct recruitment as senior lecturer in 1933.

He was promoted to Punjab Education Service (Class I) on October 1, 1949.

He was given the selection grade with effect from February 15, 1956 and in due course rose to the position of Director of Public Instruction-cum-Secretary to the Government of Punjab, Education Department.

He proceeded on leave preparatory to retirement on March 18, 1958, on attaining the age of superannuation. In June, 1961, he received a copy of letter No. 5137- Ed-I-60/9269 dated May 2, 1961 addressed by the Secretary to Government, Punjab, Education Department, to the Director of Public Instruction, Punjab, Chandigarh, conveying the sanction of the Governor of Punjab to the grant to him i.e. the respondent of super annuation pension and death-cum-retirement gratuity of Rs. 417.02 np. per menscm and Rs. 17,030.25 np in lump sum respectively under rules 5.27 and 6.13 of the Punjab Civil Service Rules, Vol. II read with para 9(1) (a) of the New Pension Rules, 1951. It was stated in the aforesaid letter that personal file of the respondent had been examined with reference to rule 6.4 of the Punjab Civil Service Rules, Vol. II and Government were satisfied that his service record was not satisfactory and a cut of 10% had accordingly been made in the amount of pension and death-cum-retirement gratuity admissible to him.

On January, 28, 1962, the respondent submitted representa tions to the Chief Minister and Governor of Punjab against the aforesaid decisivn of the Government to apply 10% cut in his pension and death-cum-retirement gratuity but the same proved abortive.

After the establishment of the Board set up to examine and remove the grievances in the matters of promotion and fixation of pension etc. of the Gazetted Officers of the Government, the respondent addressed a representation to the said Board on September 14, 1964, against the aforesaid decision of the Government to apply a cut of 10% in his pension and gratuity.

On November 1. 1965, the respondent received a copy of letter No. EDI-4(64)-65/22436 dated October 21, 1965, addressed_ by the Education Commissioner and Secretary to Government, Punjab, Education Department, to the Director of Public Instruction, Punjab, intimating that in supersession of the aforesaid letter dated May 2. 1961 of the Punjab Government, it had been decided to grant to the respondent a superannuation pension and death-cum-retirement gratuity of Rs. 440.18 np per mensem and Rs. 18,927.50 np in lump sum respectively under rules 5.27 and 6.13 of the Punjab Civil Service Rules, Vol. II read with para 9(i) (a) of. the New Peru; ion Rules, 1951. In para 3 of the letter, it was reiterated that a cut of 5 % had been made in the pension admissible to the respondent as his service record which had been examined with reference to rule 6.4 of the Punjab Civil Service Rules, Vol. II had not been. satisfactory.

Aggrieved by his communieation, the respondent filed m th~ Pun1ab and Haryana High Court at Chandigarh a petition

unc.r Art1cle.s 226 and 227 of the Constitution, being Civil Writ Petition No. 298 of 1966, challenging the aforesaid decision o{ the Punjab Government which was, as already stated, allowed by Narula, J. (as he then was) by his judgment and order dated December 19 1966, following the Fnll Bench Judgment of his Court dated Octobe;

25, 1966, in Civil Writ Petition No. 504 of 1954 entitled Shri K. R.

Erry, Retired Superintending Engineer, 45, Cecil Hotel, Simla v.

The State of Punjab(').

Dissatisfied with this judgment and order, the appellants preferred a Letters Patent Appeal, being L. P. A. No.

104 of 1967 which did not meet with success.

Thereupon the appellants applied for a certificate under Article 133 of the Constitution which was granted to them.

This is how the matter is before ns.

Although in the grounds of appeal, it has been urged by the appellants that the Full Bench decision of the High Court of Punjab and Haryana in K. R. Erry's( 1) case (supra) is not in accordance with law as superannuation pension is a bonnty and is given only as an act of grace, that ground is no longer available to the appellants in view of the decision of this Court in Deokinandan Prasad v. The State of Bihar & Ors. (2) where it was held that pension is not a bounty payable on the sweet will and pleasure of the Government and the right of a Government servant to receive it is property under Article 31 ( 1) of the Constitution and the State cannot withhold the same by a mere executive order. It was further held in that case that the claim to pension was also property under Article 19 ( l) • ( f) of the Constitution and was not saved by clause ( 5) thereof.

The learned counsel appearing for the appellants has, however, made a feeble attempt to urge that no opportunity to show cause was require<!' to be given to the respondent before passing the order jmposing the cut in his superannuation pension and death-cum-retire,\P, Mt gratuity under clanses (a) and (b) of rule 6.4 of the I'tibjall "Civil Service Rules (Pension Rules), as the order W11s'1/lff1administrative order and the case did not fall within th&ripurview of Article 311 (2) of the Constitution. It has-bll<ln further contended by learned counsel for the appellants that U: was the judgment of this Court in M.

Narasimachar v. •The State of Mysore(•), and not the judgment in State of Punjab v. The K. R. Erry & Sobhag Rai Mehta( 4 ) which governed the present case.

We regret we are unable to accede to these contentions.

Though the impugned order imposing cut in pension and gratuity is not one of reduction in rank falling .within the purview of Article 311

(2) yet there can be no doubt that it adversely affected the respondent and such an order could not have been passed without giving him a reasonable opportunity of making his defence.

Reference in this connection may be made with advantage to the decision of this Court

in K. R. Erry & Sobhag Rai Mehta's case (supra) where after an exhaustive review of the case law bearing on the point, it was observed at page 413 as follows :-

"Where a body or authority is judicfa.I or where it has to determine a matter involviffg rights judicially because of express or implied provision, the principle of natural justice audi alteram partem applies. See : Province of Bombay v.

Kusaldas S. Advani & Ors. [1950 S.C.R. 621 (725), and Board of High School & Intermediate Education,

U.P.

(I) I.L.R. (1917) Punjab & Haryana 278.

(3) [1960] I S.C.R. 981 : A.I.R. 1960 S.C. 247.

(2) [1971] Supp. S.C.R. 634.

(4) [1973] 2 S.C.R. 405.

PUNJAB v. lQBAL JilNGH (Jaswant Singh, J.)

J63

Allahabad v. Ghanshyam Das Gupta & Ors. (1962) Suppl.

(3) S.C.R. 36.] With the profiteration of administrative decisions in the welfare state it is now further recognised by Courts both in England and in this country, (especially after the decision of House of Lords in Ridge v. Baldwin (1964) A.C. 40 that where a body or authority is characteristically administrative the principle of natural justice is also liable to be invoked if the decision of that body or authority B affects, individual rights or interests, and liaving regard to the particular situation it would be unfair for the body or authority not to have allowed a reasonable opportunity to be heard. See : State of Orissa v. Dr. (Miss) Binapani Dei & Ors. (1967) 2 S.C.R. 625 and In re H. K. (An Infant) [1967] 2 Q.B.D. 617. In the former case it was observed as follows :- C

"An order by the State to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of jUstice and £airplay.

The deciding authority, it is true, is not in the position of a Judge called upon to decide an action between. contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon. He is however under a duty to give the person against whom an enquiry is held an opportunity to set up his version or defence and an opportunity to correct or to controvert any evidence in the possession of the authority which is sought fo be relied upon to his prejudice.

For that purpose the person against whom an enquiry is held must be informed of the case he is cal!ecl upon to meet and the evidence in support thereof.

The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applied alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences.

is one of the funi(amental rules of our constitutional set up that every citizen is protected against exercise of arbitrary authority by the State or its officers.

Duty to act judicially would therefore arise from the very nature of the function intended to be performed.

It need not be shown to be super-added. If there is power to decide and determine to

the prejudice of a person, duty to act judici_ally is i!Ilpl_icit in the exercise of such power.

If the essentials of 1usllce be ignored and an order to the prejudice of a person is made, the order is a nullity.

That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case."

These observations were made with reference to an authority which could be described as characteristically administrative. At page

630 it was observed :

"It is true that the order is administrative in character, but even an administrative order which involves civil

A consequences as already stated, must be made consistently with the rules of natural justice after informing the first res- ' pondent of the case of the State, the evidenve in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence."

The decision of this Court in M. Narasimachar's case (supra) on which strong reliance has been placed on behalf of the appelbnts is of no assistance to them as the point as to whether an opportunity to C show cause was to be afforded to a Government servant before applying a cut in his pension in view of the principle of natural justice embodied in the well known maxim audi alteram partem was never urged or gone into in that case.

Furthermore as pointed out by Palekar, J. while speaking for the Court in K. R. Erry & Sobhag Rai Mehta's case (supra) the question whether pension is a bounty or property did not arise in the former case.

The present case is, in our D opinion, fully covered by the judgment of this Court in K. R. Erry & Sobhag Rai Mehta's case (supra).

For the foregoing reasons we are of the view that the impugned judgments do not suffer from any illegality and were rightly rendered.

In the result the appeal fails aud is hereby dismissed with costs.

P.B.R.

Appeal dismissed.

STATE OF PUNJAB AND ANR

IQBAL SINGH

February 12, 1976

A. C. GUPTA

Arts 31(1) and 19(1)(/)

Art. 311

Art. 31

Art. 19(1)

Art. 19

Art. 311

H. K. Puri

M. C. Dhingra

N arula

October 1, 1949

February 15, 1956

March 18, 1958

Chandigarh

Punjab

New Pension Rules, 1951

January, 28, 1962

November 1. 1965

Punjab Government

s 226 and 227

Narula

K. R.

Erry

State of Punjab

Article 133

High Court of Punjab and Haryana

K. R. Erry

Article 31

Article 19

Civil Service Rules

Article 311

Article 311

Sobhag Rai Mehta

[1973] 2 S.C.R. 405

Jaswant Singh

England

(1967) 2 S.C.R. 625

M. Narasimachar

Palekar