MINU B. MEHTA AND ANOTHER

BALKRISHNA RAMCHANDRA NAYAN AND ANOTHER

January 28, 1977

[A. N. RAY, C. J., M. H. BEG AND P. S. KAILASAM, JJ.] Motor Vehicles Act, 1939-S. 95(v)(b)(i) and (ii)-Scope of -Claim for compensation in motor vehicle accidents-Proof of negligence of drilf15r-lf necessary.

Torts-Claim for compensation in motor vehicle accidents-Proof of negligence of drriver-lf necessary.

While the respondent was travelling in his car, the appellant's truck, driven by a driver, hit the car and caused injuries to the respondent and damaged the car.

The Claims Tribunal awarded compensation to the respondent, and the High Court upheld the Tribunal's award.

In the course of the judgment the High Court, however, observed that every person has a right to security and safety of his person irrespective of the fault or negligence or carelmsness and that every person hlli> a right to claim compensation. irrespective of proof of negligence on the part of the driver.

It further observed that the perimeters of liability in els. (i) and (ii) of s. 95(i)(b) must be held to he the same because in both, the liability of the owner of the driver exists and is made compulsorily insurable and that it could not be said that the legislature intended absolute liability in cases covered by cl. (ii) and not in cases covered by

cl. (i).

HELD : Proof of negligence is necessary before the owner or the insurer could be held liable for payment of compensation in motor vehicle accident claims.

The High Court's views are opposed to basic principles of the owner's liability for negligence of his servant and are based on a compkte misreading of the provisions of Chapter VIII of the Motor Vehicles Act. [900 Fl

1. Before a person can be made liable to pay compensation flilr any injuries and damage caused by ms action. it is necessary tha> the perso'Il injured should be able to establish that he has some cause of action against the party responsible.

In order to succeed in an action for negligence the plantiff must prove ( 1) that the defendanb had, in the circumstances, a duty to take care and that duty was owed by him to the plaintiff and (2) that there was a breach of that dut<y and that as a result of the breach damage was suffered by the plaintiff.

The master also becomes liable for the conduct of the servant when the servant is proved to have acted negligently in the course of his employment. f895 C-Dl 2(a) The puri:ose of making i'Ilsurance compulsory is to protect the interests of the successful claimant from being defeated by the owner of the vehicle who has not enough means to meet his liability.

The1 safeguard is provided by imposing certain statutory duties, namely, the duty not to drive or permit a car to be driven unless the car is covered by third party insurance. f895 Fl

(b) Under s. 95(1) (b )(i) of the Act, the policy of insurance must be a i:nlicy which insures against any liability which may be incurred in respc' of death or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. The accident to which the owner or the person insuring is liable is to the extent of his liability in respect of death or bodily injury and that liability is covered by the insurance. It is. therefore, obvious that if the owner has not incurred any liab; lity in respect of death or bodily injury to any person there is no liability and it is not intended to be covered by the insurance. The liability contemplated arises under the law of negligence and under the principle of _vicarious liability.

The provisions of the section do not make the owner or the rnsurance compa.ny Iiabk for any bodily iniurv caused to a third party arising out of the use of the vehicle unless the liability can be fastened on him. [896 D-F]

(c) Under sub-cl. (ii) of s. 95(1)(b) of the Act the policy of insurance must insure a person against death or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place.

So far as the bodily injury caused to a passenger is concerned it need not be due to any act or liability incurred by the person. The expression "liability which may be incurred by him" in sub.-cl. (i) is meant to cover any liability arising out of the use of the vehicle. Therefore, the person must be under a liability and that liability alone is covered by ihe insurance policy. [896 F-H] ·

(d) The owner's liability arises out of his failure to discharge a duiy cast on him by law. The right to receive compensation can only be against a person who is bound to_ compensate due to the failure to perform a legal obligation.

Ji a person is. not liable legally he is under no duty to compensate any one else. The Claims Tribunal is a tribunal constituted by the State Government for expeditious disposal of the motor vehicles claims. The general -~ law applicable is only co.mmon law and the law of orts. ner he lf!:W a

.,,

- - person becomes legally !table then the person suffermg the m1unes 1s enhtled to be compensated and the tribunal is authorised to determine the amount of C f compensation which appears to be just. The plea that the Claims Tribunal is en.titled to award compensation which appears to be just when it is satisfied on proof of injury to a third party arising out of the use of a vehicle on a public place without proof of negligence, if accepted, would lead to strange results.

[897 E-F]

3. The po\ver to constitute one or more Motor Vehicle Claims Tribunals under s. 110(1) is optional and the State Government may not constitute a Claims Tribunal for certain areas. When a claim includes a claim for compensa- D tion, the claimant has an option to make his cfa.im before the Civil Court. In

claims for compensation, therfore, in certain cases, Civil Courts also have iurisdiction. If the contention put forward is accepted so far as the Civil Court is concerned, it would have to determine the liability of the owner on the basis of common law or torts while the Claims Tribunal can award compensation without reference to common law or torts and without coming to the conclusion that the owner is liable The concept of owner's liability without any negligence is opposed to the principles of law.

The mere fact that a party E received an injury arising out of the use of a vehicle in a public place, annot justify fas1ening liability on the owner. It may be that a person bent upon committing suicide may jump before a car in motion and thus get himself kille.d.

In such cases, the owner cannot be made liable.

Proof of negligence remains the lynch pin to recover compensation. [897 H; 898 A-Bl

Haji Zakaria and others v. Naoshir Cama and others A.I.R. 1976 A.P. 171 and New India Assurance Co. Ltd. v. Sumitra Devi and others, 1971 A.CJ. 58 not approved. Kesavan Nair v. State Insurance Officer, 1971 A.CJ. 219 and Afls. Ruby [nsurance Co. Ltd. v. V. Govindaraj and others, A.A.O. 607 of 1973 and 296 of 1974 decided by the Madras High Court on December 13, 1976 referred to.

CIVIL APPELLATE JURismcnpN : Civil Appeal No. 1249 of 1976.

Appeal by Special Leave from the Judgment and Order dated . the 23-3-1976 of the Bombay High Court in C. No. 449/75 from Onginal

Decree.

F. S. Nariman, J. M. Patel and B. R. Agarwala for the Appellants.

R. D. Hattangadi, George Kurien and (Mrs.) Urmila Sirur for Res. No. 1.

K. K. Singhvi and V. N. Ganpule for the applicant/Intervener.

The Judgment of Court was delivered by KAfLAAAM, J. This appeal is by special leave under Article 136 of the Constitution by the two appellants against the judgment of the

Bombay High Court dismissing their appeal against the judgment of the Additional Motor Accidents Claims Tribunal for Greater Bombay and confirming the award passed by the tribunal in favour of the

r.es~ndents and directing the Tribunal to decide the question of the liability of the Insurance Company on its application that its liability is limited to Rs. 20,000 under section llOE of the Motor Vehicles Act, } 939 referred to as the Act after giving opportunity to the parties.

The applicant in .t\pplication No. 727 of 1969 before the Motor Accidents Claims Tribunal for Greater Bombay is one Dr. Balkrishna Ramchandra Nayan practising in Bombay and is the respondent in this appeal.

On 14th April, 1969 at about 1.00 p.m. the respondent was driving his car No. MRC-4450 towards Fort side on Dr. Annie c Besant Road. With him was sitting on the left side in the front seat Mala ti - M. Deshmukh, his nurse.

The road has stone dividers in the middle of the road.

When the car approached Lotus cinema the truck owned by the appellants and insured with the Insurance Company who we<e opposite parties 1 to 3 before the Motor Accidents Claims Tribunal came from the opposite direction at a high speed and dahed

against the right side of the car.

Due to the impact the car was damaged and the 1st respondent and Malati M. Deshmukh were injured.

Respondent 1 had to undergo treatment.

He was operated on the day of the accident itself and was patient in his own Nursing Home for a month till 15th May, 1969.

According to him his right arm was operat~ and kept in plaster and that he had become permanently disabled in discharging his duties as a surgeon and that he had incurred a loss during the closure of the Nursing Home and loss of income due to permanent injury along with other claims. He claimed

a sum of Rs. 3 lakhs by way of general and special damages with interest thereon from the date of his application.

The owners of the vehicle filed a written statement refuting the claim of the applicant.

According to them while the motor lorry was proceedin~ from Haji Ali towards \Vorli, they had taken all precautions to keep the lorry in road W0fthy condition and that at the. material time the axle brake ring of the motor lorry came out and the driver therefore lost control of the vehicle and because of this defect which can develop in a ruRning car the driver lost control of the steering wheel.

According to them the lorry prior to the accident was being driven at a moderate spied with due care and caution.

They contended that the accident did not occur on account of rash and negligent driving on the part of the driver.

They also denied the claim of various items of compensation made by the applicant.

The Motor Accidents Claims Tribunal framed four issues.

The first 2 issues were whether the applicant had proved that the driver of

the lorry was driving the vehicle in rash and negligent manner and whether the opposite party had proved that at the time of the accident the axle brake ring of the motor lorry came out and the driver Jost control of the motor lorry.

The other 2 issues related to the question as to whether the applicant received the in juries as a result of this accident and whether he was entitled to the compensation claimed by him.

MINU B. ]\, fEHTA v. B. R. NAYAN (Kai/asam, J.) 889

The applicat ex.amined hll?-selj and Mal.ati M. Des?mukh :Wh? was travelling with bun at the tune_ of the accident regardmg the mc1- .dent.

He also examined P. Ws 2 and 3, P. W. 2 a nurse to prove his income from his profession and P.W. 3 a doctor who treated him. On behalf of the appellant 6 witnesses .were examined in support of their case that the accident was due to a 'mechanical failure and not due to any rashness or negligence on the part of the driver.

The Tribunal after elaborately discusing the oral' aml'documentary evidence adduced before it found that the accident was due to ; the rash and negligent driving of the driver of the lorry and the _cjffence set up that the accident was due to mechanical failure of th<'. fof ry was unacceptable.

The Claims Tribunal accepting the evidence of the applicant and a Customs Officer, Mr. Jawa.kar, who was examined as D.W.4 on the side of the appellants, came ,, t-0 the conclusion. that when the doctor was in the traffic lane nearer to the road divider the lorry crossed the road divider and hit the car. The defence witness himself stated that the lorry came after crossing the central barricade.

The lorry went @ff the track and went on the wrong side and collided with the oncoming car of the applicant who was in his car. Referring to his notes the witness stated that the right side of the lorry went and hit the right side of the car of the applicant.

The portion of the lorry upto the driver's seat collided with the right side of the car.

Both the wheels of the front side of the lorry had crossed the central reservation tract and so also the right rear wheel was on the wrong side and only the left rear wheel was just near the edge of the central reservation tract towards Lotus cinema.

On the face of the evi-- dence of the doctor and their own witness D.W.4 who was travelling in the lorry there could be no denying the fact that the lorry crossed the middle of the road.

Relying on the evidence of the two witnesses as well as the doctrine of res ispa loquitur the Claims Tribunal rightly found that the applicant had established rash and negligent driving on the part of the driver and the lorry.

The Accidents Claims Tribunal has also discussed elaborately the defence set up on behalf of the owners of the lorry and rejected it.

The plea that was taken in the pleadings was that at the time of the accident "Axle Brake Ring" of the lorry came out.

The expert examined on behalf of the owner, Jimmy Dara Engineer, D.W. 6, stated that he had never heard of any such part as axle brake ring and he has never seen such a part. The owners subsequently explained that what they meant by "Axle Brake Ring" was drag link on the rod enll.

The Claims Tribunal also referred to the evidence of the expert examined on behalf of the owners a11d remarked that the nut on the pin could not be blown on' all of a sudden and that the driver, unless he was negligent, could feel the change if t11ere was anything wrong with the drag link end and can stop the vehicle immediately.

Rejecting the evidence of the driver and relying on the evidence of the expert on tlle side of the defence that even if there was any defect the vehicle could be stopped within 4 or 5 red and need not cover the distance which it did, the Claim Tribunal

also found tllat the' defect which tlle defence witness, Motor Vehicle Illspector J>artapsingh Chavan, D.W.I. saw when he examined the

890 SuI'REJ\JE COURT REPORTS [ l 977] 2 s.c.R.

A lorry on 22nd April, 1969, could not be accepted as the owners of the lorry could have played mischief and created evidence before inspection on 22nd April, 1969. Criticising the conduct of the owners as unworthy of their status the Claims Tribunal totally rejected the defence.

Regarding the compensation the Claims Tribunal fixed the amount at Rs. 1,43,400i-together with interest at 6 per cent.

This sum was apart from a sum of Rs. 500 which was found payable to Malati M. D"5hmukh who had sustained injuries.

The Claims Tribunal directed the owners as well as the insurers jointly to pay the amount, to the respondent Dr. Balkrishna Ramachandra Nayan.

It alSo directed the op?Osite parties and insurers to pay Rs. 1000 as costs and Rs. 100 as costs of Malati M. Deshmukh.

The Claims Tribunal fixed a sum of Rs. 73,779 as the loss sustained by the doctor for a period of 4 years from the date of the accident.

It also for a subsequent period of 7 years fixed the future loss at Rs. 9,000 a year and a total amount of Rs. 63,000. In addition it awarded a sum of Rs. 5,000 for discomfort and inconvenience D suffered by the doctor. Thus the total compensation that was granted

amounted to Rs. 1,43,400.

As already stated the interest was awarded from the filing of the application till payment.

The insurance company as well as the owners of 'the lorry preferred appeal against the award of the Tribunal iii'i;.ppeal No. 449 .of 1975 before the High Court of Bombay.

Though the appeal was filed on behalf of the insurance company and the owners of the lorry, during the hearing of the appeal it was contended on behalf of the insurance company that in any event the liability of the insurance company under the policy could not exceed Rs. 20,000.

The High Court on the question of whether there was negligence on the part of the driver of the lorry or not found itself in complete agreement with the Claims Tribunal and observed that it was for the lorry driver and owners to establish as to how the lorry crossed the road dividers, went on the wrong side and mounted on the Fiat Car coming frG;'.11 the opposite direction.

Agreeing with the Tribunal it found that the driver was negligent. The High Court concurred with the reasons and findings of the Tribunal.

It also held in the cjrcumstances of the case that the principle res ipsa loquitur applied.

The High Court also rejected the defence taken by the owners that the injury was due to a mechanical defect and not due to the negligence.

After referring to the evidence and the reasoning of the Tribunal on the defence set up by the owners the High Court came to the conclusion that the plea about the breaking of the tie rod was not proved satisfactorily by the owners.

The High Court regarding the defence raised found itself in complete agreement with the conclusion arrived at by the Tribunal observing that the Tribunal rightly disbelieved the defence plea and came to the conclusion after careful consideration of the evidence of the driver, Customs Officer and other evidence in the case that it was the driver who was negligent.

• I

.,,

Regarding the quantum of damages the High Court expresseu its opinion tliat the Tribunal had made best efforts and trid to determin~ the compensation in a iust manner on the facts and circumstances of the case. It confirmed the amount as awarded by the Tribunal and dismissed the appeal':" The High Court dismissed the appeal of the owners and the insurance company and confirmed the award passed by the Tribunal.

But it gave..Jiberty to the insurance company to apply to the Claims Tribunal on depositing Rs. 20,000 with interest from the date of the application to the date of the deposit for determination of the question that the liabiliy of the insurance company is limited only to Rs. 20,000.

The High Court directed the Tribunal to decide the question of the liability of the insurance company on its application under section 11 OE by giving opportunity to the parti!:S .to put forward their cases.

Insurance company was directed to pay the costs of all the parties.

It also provided that the claimant was at liberty to withdraw Rs. 20,000 with interest when deposited by the insurance company.

The order also made it clear that the right of the applicant to recover the balance of the awarded amount from the other party or from the insurance company will not in any way be affected.

The appeal to this court is preferred by the owners.

The insurance company is impleaded as the second respondent in the appeal before us.

Mr. Nariman, the learned counsel appearing for the owners submitted that the High Court did not hear arguments on the question whether the accident took place due to rash and negligent driving of the lorry a, nd therefore the question will have to be gone into by this Court or remanded for fresh disposal.

We find that the High Court has given a clear finding in paragraph 30 of its judgment that the Tribunal rightly disbelieved the plea and held that it was the driver who was negligent and that they fully concur with the reasons and findings of the learned Member of the Tribunal.

In the face of the clear finding we are unable to accept the plea of the learned counsel that this question was not gone into by the High Court. We find ourselves in complete .agreement with the finding of the Tribunal and the High

Court.that it was due to rash and negligent driving of the lorry that the car in which th<> applicant and Malati M. Deshmukh were travelling was hit causing injuries to both of them.

We accept the testimony of the doctor and D.W. 4 Jawakar that the lorry crossed the Toad dividers, ran into the wrong side and hit the car which was driven by the applicant.

We have no hesitation in accepting the concurrent findings of the High Court and the Claims Tribunal that the accident was due to the rash and negligent driving of the lorry driver.

We have also no hesitation in rejecting the testimoney of the defence that there was some mechanical defect which resulted in the tie rod end breaking.

We find ourselves in agreement with the reasoning of the Claims Tribunal that the evidence on the side of the owners is contradictory and the testimony of the expert destroys the plea of any mechanical defect set up by them.

Jn this connection we may also point out that in order to succeed in a

9-206SCI/77 .

- - , defence that the accident was due to a mechanical defect the owners will have to prove that they had taken all necessary precautions and kept the lorry in a roadworthy condition.

No such attempt was made to establish that all necessary precautions were taken to keep te lorry in a roadworthy condition and that the defect occurred in spite of the reasonable care and caution taken by the owners .

In order to sustain a plea that the accident was due to the mechanical defect the owners must raise a plea that the defect was latent and not discoverable by the use of reasonable care.

The owner is not liable if the accident is due to a latent defect which is not discoverable by reasonable care.

The law on this subject has been laid down in Henderson v. Henry E. Jenkins & Sons.(').

In that case the lorry driver applied the brakes of the lorry on a steep hill but they failed to operate.

As a result the Jorry struck and killed a man who was emerging from a parked vehicle.

The defence was that brake failure was due fo a latent defect not discoverable by reasonable care on driver's part. It was found that the lorry was five years old and had done at Jcast 150,000 miles.

The brake9 were hydraulically operated.

It was also found after the accident that the brake failure was due to a steel pipe bursting from .7mm. to .lmm.

The corrosion had occurred where it could not be seen except by removing the pipe completely from the vehicle and this had never been done.

Expert evidence showed that it was not a normal precaution to do this if, as was the case, the visible parts of the pipe were not corroded.

The corrosion was unusual and unexplained.

An expert witness said it must have been due to chemical action of some kind such as exposure to salt from the roads in winter or on journeys near the sea.

The House of Lords held that the burden of proof which lay on the defendants to show that they had taken all reasonable care had been discharged.

The defect remained undiscovered despite due care As the evidence had shown that something unusual had happened to cause this corrosion it was necessary for the defendants to show that they neither know nor ought to have known of any unusal occurrence to cause the breakdown. (See Bingham'? Motor Claims Cases Seventh Ed., p. 219).

The burden of proving that the accident was ijue to a mechanical defect is on the owners and it is their duty to show that they had taken all reasonable care and that despite such care the defect remaind hidden.

In this case in the written statement all that is pleaded is that the axle brake ring of the lorry came out and the driver lost control of the motor lorry and that the defect can develop in a runnincr vehicle resulting in the driver's losing control of the steering wh; el.

Though it was stated that all precautions were taken to keep the lorry in a roadworthy condition it was not specifically pleaded that the defect i.e. the axle brake ring coming out, is a latent defect and could not have been discovered by the use of reasonable care.

This lack of plea is in addition to the Jack of evidence and the fact that the defence set up has been rightly rejected by the Tribunal.

(1) (19701 A.C.282(1969] 3 All E.R. 756

• •

Mr. Nariman then submitteQ_ that the quantum of compensation awarded was very high.

He submitted that even according to the figures relied on by the High Court it was in error in coming IC? the conclusion that for. a period of 4 years from the date of the accident the claimant has suffered a damage of Rs. 73,779.

The learned . counsel submitted that though during the first year there was a loss of Rs. 3,530 in subsequent years he earned various amounts and in one year he earned Rs. 7,981 which would mean that during subsequent years his loss would not have been more than Rs. 10,000 and as admittedly the Nursing Home was kept as a going concern the award of Rs. 10,000' per year for the four years would be very high.

We have considered this contention carefully but taking all the drcumstances into account we do not feel called upon to interfere with the quantum arrived at by the Tribunal and confirmed by the High Court. The learned Counsel also submitted that the provision for Rs. 63,000 for the 7 years as the likely loss due to the doctor's disability is also very high.

In this case also we po not feel called upon to interfere with the quantum arrived at by the Tribunal as wel! as the High Court. Lastly, the learned counsel submitted that in any event the interest awarded from the date of the application is not justified.

We do not think we will be justified in interfering with the amount of interest awarded by the High Court from the date of the filing of the application.

On the above findings we confirm the award passed by the Claims Tribunal in favour of the applicant/respondent No. 1 for Rs. 1,43,400

with interest at 6% per annum from the date of the filing of the application and also a sum of Rs. 500 granted to Malati M. Deshmukh . and the costs awarded.

The liability of the owners and the insurance company will be joint and several and the respondent would be at liberty to proceed against either or both of them to realise the amount awarded in his favour.

We have now to consider the direction given by the High Court regarding the determination of the liability as between the insurance F company and the owners.

The owners and the insurance company were represented by the same counsel before the Tribunal and before the High Court the learned counsel on behalf of the insurance company pleaded that its liability is limited to Rs. 20,000 only.

The High Court has given liberty to the insurance company to apply on depositing Rs. 20.000 with interest as directed for determination of the question that the liability of the insurance company is limited to G Rs. 20,000.

The High Court also direted the Tribunal to decide the liability of the insurance company on the insurance company filing such an application after giving notice to all the parties.

The insurance company has not appealed against the judgment and decree of the High Court and we see no reason for interfering with the order.

On the insurance company complying with the directions of the High Court by depositing Rs. 20,000 with interest as specified the matter H will be remitted to the Tribunal for determination of the question whether the liability of the insurance company is limited to Rs. 20,000 only. It is inade clear that so far as the award made in

favour of the pplicantlrespondent is concerned he will be at liberty to proceed agamst t_he owners as well as the insurance company jointly and severally.

With these directions the appeal is dismissed with the cost of the first respondent.

This should normally conclude the judgment but we feel it desirable that we must deal with the question of law that has been

dealt with at considerable length by the High Court as to whether it is incumbent on the claimant to prove negligence before he would become entitled to compensation.

The High Court after concurring with the findings of the Tribunal and holding that the driver was negligent proceeded to state that it would not have been necessary for them to say anything more but for the fact that taking into account the importance of matter and in public interest it would be appropriate to express its view that it is not necessary to prove negligence on the part of a driver before claiming compensation.

Both the learned Judges have written lengthy judgments fuJy discussing the matter and have come to the conclusion that the fact of an injury resulting from the accident involving the use of a car on the public road is the basis of a liability and that it is not necessary to prove any negligence on_the part of the driver. We find that a Bench of the Andhra Pradesh High Court has held in Haji Zakaria and Others v. Naoshir Cama and others (1) that the liability of the insured and consequently of the insurer to compensate a third party dying or being injured on account of the use of the insured vehicle is irrespective of whether the death, injury etc. has been caused by rash and negligent driving.

Though this question does not arise in this appeal as the two High Courts have expressed an opinion which in our view has no basis either in the Legislative history or on a construction of the relevent provisions of the Motor Vehicles Act we feel it necessary to state the position of law.

The liability of the owner of the car to compensate the victim in a car accident due to the negligent driving of his servant is based on the law of tort.

Regarding the negligence of the servant the owner is made liable on the basis of vicarious liability.

Before the master could be made liable it is necessary to prove that the servant was acting during the course of his employment and that he was negligent.

The number of the vehicles on the road increased phenumenally leading to increase in road accidents.

To remedy the defect various steps were taken.

In England the owners of the vehicle voluntarily insured against the risk of injury to other road users.

With the increase of traffic and accidents it was found that in a number of cases hardship wa~ caused where the person inflicting the injury was devoid of sufficient means to compensate the person afflicted.

In order to meet this contingency the Road Trame Act, 1930, The Third Parties (Rights against Insurers) Act, 1930 and the Road Traffic Act 1934 were enacted in England. A system of compulsory msurance as enacted by the Road Traffic Act, 1930. Its object was to reduce the number of cases where judgment for personal injuries

(!) A.I.R. 1976 A.P. 171.

obtained against a motorist was not met owing to the lack of means of the defendant in the running, dciwn action and his failure to insure against such a liability. It is sufficient to state that compulsory insurance was introduced to cover the liability which the owner of the vehicle may incur.

The Indian law introduced prov1s10ns relating to compulsory insurance in respect of third party insurance by introducing Chapter VIII of the Act.

These provisions almost wholly adopted the provisions of the English law.

The relevant sections found in the three English Acts, Road Traffic Act, 1940, the Third Parties (Right against Insurers) Act, 1930 and the Road Traffic Act, 1934 were incorporated in Chapter VIII.

Before a person can be made liable . to pay compensation for any injuries and damage which have been caused by his action it is necessary that the person damaged or iniured should be able to establish that he has some cause of action against the party responsible. Causes of action may arise out cif actions for wrongs under the common law or for breaches of duties laid down by statutes.

In order to succeed in an action for negligence the plaintiff must prove ( 1) that the defendant had in the circumstances a duty to take care and that duty was owed by him to the plaintiff, and that (2) there was a breach of that duty and that as a result of the breach damage was suffered by the plaintiff. The master also becomes liable for the conduct of the servant when the :; ervant is proved to have acted negligently in the course of his employment.

Apart from it in common law the master is not liable for as it is often said that owner of a motor car does not become liable because of his owning a motor car.

The purpose of enactment of Road Traffic Acts and making insurance compulsory is to protect the interests of the successful claimant from being defeated by the owner of the vehicle who has not enough means to meet his liability.

The safeguard is provided by imposing certain statutory duties namely the duty not to drive or permit a car to be driven unless the car is covered by the requisite form of third party insurance.

Section 94 of the Act, provides that no person shall use except as a passenger or cause or allow any. other person to use a motor vehicle in a public place unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of the Chapter. Section 95 of the Act is very important and that specifies the requirements of policies and limits of liability.

Section 95 ( 1) (a) and (b) of the Act arn extracted. They run as follows :

"95. (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-

(a) is issued by a person who is an authorised insurer or by a co-operative society allowed under section 108 to transact the business of an insurer, and

(b) insures the person or .classes of persons specified in the policy to the extent specified in sub-section (2)-

(i) gainst any liability which may be incurred by him m respect of the death or of bodily injury to any person or damage to any property. of a third party caused by or arising out of the use of the vehicle in a public place;

(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place :

* * * * *"

Under section 95 ( 1) (b) (i) of the Act it is required that policy of insurance must be a policy which insures the person against any liability which may be incurred by him in respect of death or bodily injury to any persOJ! or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place.

It may be noted that what is intended by the policy of insurance is insuring a person against any liability which may be incurred by him.

The insurance policy is only to cover the liability of a person which he might have incurred in respect of death or bodily injury.

The accident to which the owner or the person insuring is liable to the extent of his liability in respect of death or bodily injury and that liability is covered by the insurance. It is therefore obvious that if the owner has not incurred any liability in respect of death or bodily injury to any person there is no liability and it is not intended to be covered by the insurance.

The liability contemplated arises under the law of negligence and under the principle of vicarious liability.

The provisions as they stand do not make the owner or the insurance company liable for any bodily injury caused to a third party arising out of use of the vehicle unless the liability can be fastened on him.

It is significant to note that under sub-clause (ii) of section 95(1) (b) of the Act the policy of insurance must insure a person against the death or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place.

Under section 95 ( 1) (b) clause (ii) of the Act the liability of j:he person arises when bodily injury to any passenger is caused by or use of the vehicle in a public place.

So far as the bodily injury caused to a passenger is concerned it need not be. due to any act or liability ~· incurred by the person. It may be noted that the provisions of section 95 are simHar to sectionf36h( )h C!f the Ehngliffsh Rohad Traffi 1 Actf, . 1930, the rele.vant portion o w 1c 1s to t e _e ect t at a po icy o insurance must be policy which insures a person in respect of any liability which may be incurred by him in respect of death or bodHy

injury to any person caused by or arising out of the use of the vehicle on road.

The expression "liability" which may be incurred by him" is meant as covering any liability arising out of the use of the yhicle.

It will thus be seen that the person must be under a liability and that liability alone is cover~ by the insurance policy.

> •

•• MINU Il. MEHTA v. B. R. NAYAN (Kai/asam, 1.) 897

Section 96 of the Act also makes the position clear. It provides that when a judgment in respect of such a liability as is required to be covered by a policy is obtained against any person insured by the policy, then the insurer shaµ -pay to the person etitl_e~ te benet <;>f

the decree as if he were a Judgment-debtor. The liability ts thus !itruted to the liability as is covered by the policy. .

The main contention of Mr. Hattangodi, who supported the view of the High Court that negligence -need not be proved is that Chapter VIII of th_e. Act is a consolidating and amending Act relating to motor

vehicles and their use on a public place and as such it contains the entire Jaw, procedural as well as substantive, and that the co=on law or law of torts is no more applicable and if death or bodily injury arises out of the use of motor vehicles in a public place a liability arises. Strong reliance was placed by him on section llOA of the Act which provides for application for compensation arising . out of an accident to the Claims Tribunal. The learned counsel would submit that under section 11 OB the Claims Tribunal, after holding an inquiry, may make an award determiuing the amount of compensation which appears to i_t to be just _and specifying _the person or persons to whom the compensation shall be paid. According to counsel when an injury is caused by the use "of the vehicle in a public place the Claims Tribunal is at liberty to award an amount of compensation which appears to it to be just.

This plea ignores the basic requirements of the owner's liability and the claimant's right to receive compensation. The owner's liability arises out of his f'!ilure to discharge a duty cast on him by law . .The right to receive compensation can only be against a person who

is bound to compensate due to the failure to perform a legal obligation. If a person is not liable legally he is under no duty to compensate any one else..

The Claims Tribunal is a tribunal constituted by the State Government for expeditious disposal of the motor claims.

The general law applicable is only common law and the law of. torts.

If under the law a person becomes legally liable then the person suffering the injuries is entitled tobe compensated and the Tribunal is authorised to determine the amount of compensation which appears to be just. The plea that the Claims Tribunal is entitled to award compensation which appears to be just when it is satisfied on proof of injury to a third party arising out of the use of a vehicle on a public place withou_t _proof of negligence if accepted would lead to strange -, results. -

Section 110(1) of the Act empowers the State Government to constitute one or more Motor Accidents Claims Tribunals for such area as may be specified for the_ purpose of adjudicating upon claims . for compensation in respect of accidents involving the death or bodily ' fojury to persons. The power is optional and the State. Government may not constitute a Claims Tribunal for certain areas.

When a claim includes a claim for compensation the claimant has an option to make his claim before the Civil Court.

Regarding claims for compensation therefore in certain cases Civil Courts also have jurisdiction. If the contention put forward is accepted so far as the Civil

A -------..

Court is cocerned it would have to determine the liability of the owner on the basis of common law or torts while the Claims Tribunal can award compensation without reference to common law or torts and without oin~ _to th~ conclusion th.at the ?Wner is liable. The concept o! owners hab1l1ty without any negligence 1s opposed to the basic principles of law. The mere fact that a party received an injury arising out

f the use of a vehicle in a public place, cannot justify fastening liabillty on the ow11er. It may be that a person bent upon committing suicide may jump before a car in motion and thus get himself killed.

We cannot perceive by what reasoning the owner of the car could be made liable.

The proof of negligence remains the lynch pin to recover compensation.

The various enactments have attempted to mitigate a possible injury to the claimant by prov!iding for payment of the claims by insurance.

In Halsbury's Laws of England, 3rd Ed., Vol. 32, at paragraph 751 at p. 366 the nature of insurance required is stated as follows :-

"The conditions to be fulfilled in order to render the use of a motor vehicle lawful are ( 1) that there must be a policy of insurance in force in relation to the use of the vehicle on a road, and (2) that it must be a policy complying with the ' relevant statutory requirements."

At paragraph 752 at page 366 the general nature of liabilities required to be co_vered are stated as under :

"In order to comply with the statutory requirements, a policy must provide insurance cover in respect of any liability which may be incurred by such person, persons or classes of persons as are specified in the policy, in respect of the death of, or bodily injury to, any person (subject to specific exceptions) caused by, or arising out of, the use of the vehicle on a road."

The authorised insurers issuing a policy pursuant to the statutory requirements are obliged to indemnify the person specified in the policy in respect of any liability which the policy purports to cover in the case of that person or classes of persons.**':'" (Paragraph 758 at p. 369). These passages clearly indicate that the nature of the liability required to be covered is the liability which may be incurred by or arising out of the use of a vehicle on a road by the person.

A person is not liable unless he contravenes any of the duties imposed on him by common law or by the statute. In the case, of a motor accident the owner is enly liable for negligence and on proof of vicarious liability for the acts of his servant.

The necessity to p1ovide effective, means fo~ compen~.a.ing the victims in mot?r ac:cidents should not blind us m determmmg the state of law as 1t exists today.

Justice Vaidya in thi.s iudgment under appeal after referring to various deisions expressed his view as follows :-

"It is not necessary to discuss all these cases because, in any view, in none of those cases was the question agitated

MINU B. MEHTA v. B. R. NA"._AN (Kai/asam, J.)

as to what exactly was meant by tort in the context of automobile accidents and injuries resulting therefrom, for which

more often than not human minds, hands or legs are not always accountable, in the later half of the twentieth century.

The question has engaged the minds of jurists all over the common law world .... "

The learned Judge proceeded further to observe that whether we apply the test of torts or not the liability to pay compensation arises when the injuries are caused by the use of the motor vehicle and the Tribunal can adjudicate upon the liability and determine just compensation.

The learned Judge further observed : "In my opinion, public good requires that everyone injured, V'iz., by the use of motor vehicle, must immediately get compensation for the injury.

Every person has a right to safety and security o~ his person irrespective of fault or neg!igence or carelessness or efficient functioning of the motor vehicle.

Every person has a right to claim compensation so that is the only way of remedying the injury caused to him in a modern urbanised, industrialised and automobile ridden life."

In a separate. judgment Justice Mridul has expressed himself in the same tenor. The learned Judge after referring to section 95 (1) (b)

(i) and ( 1) (b )(ii) of the Act observed that perimeters of liability in clauses (i) and (ii) must be held to be th.e same because to both the liability of the owner or the driver exists and is made compulsorily insurable. The learned Judge while noting the difference in the wording of the two clauses observed that it' is incon'ceivable that the legis- E: lature. would intend absolute liability in cases covered by clause (ii) and not in cases covered by clause (i).

The reasoning of the two learned Judges is unacceptable as it is opposed to basic principles of the owner's liability for negligence of his servant and is based on a complete misreading of the provisions of F.

Chapter VIII of the Act. The High Court's zeal for what it considered to be protection of public good has misled it into adopting a course which is nothing short of legislation.

Equally unacceptable is the view of the Bench 'of the Andhra Pradesh High Court in Haji Zakaria and others v. Nashir Cama and others C), wherein the court concluded without any hesitation that the liability to compensate arises when death or bodily injury to any person or damage to any property Qf a third party is caused by or arisingi

out of the use of the vehicle in a public place and to infer the qualifieations or limitations that such death or bodily injury should have been 40aused before such liability arises only on account of rash nnd negligent driving would amount to introducing something which is not there and would be violating and transgressing the clear provisions of the statute and intention of-the legislature.

(l) A. I. R. 1975 A. P. 171.

. -, .. " - ... __ ..

The Patna High Court in New India Assurance Co. Ltd. v. Sumant Devi and Others(') held that the liability of the insurance company is absolute but is only limited to the extent provided by the insurance policy. As against this view all the other High Courts have held that the liability to compensate arises only on a finding of negligence.

It may not be out of place to mention that those automobile accidents are sub~ ject to he law of negligence.

Modern proposals consistent1y favour the Social Insurance model under which benefits are payable directly by the fund without any reference at all to the injurer while retaining an option for the victim to claim either limited benefits on a nonfault basis or full damages for negligence.

Consistent with this line of thinking is the judgment of the Kerala High Court in Kesavall Nair v. State Insurance Officer(2), where Justice Krishna Iyer expressed himself thus : "Out of a sense of humanity and having due regard to the handicap of the innocent v-ictim in establishing the negligence of the operator of the vehicle a blanket liability must be cast on the insurers." Modern legislation has also provided insurance cover for all air and rail passengers and recently by amendment of section 95 of the Act against death or bodily injury to passengers of a public service vehicle caused by or arising out of the use of a vehicle in a public place.

In a recent judgment of Madras High Court a Division Bench is A.AO. Nos. 607 of 1973 and 296 of 1974 M/s. Ruby Insurance Co. Ltd. v. V. Govindaraj and others, delivered on 13th December, 1976, has suggested the necessity of having social insurance to provide cover for the claimants irrespective of proof of negligence to a limited extent say Rs. 250 to Rs. 300 a month. It has also suggested that instead of a Jump sum payment which does not often reach the claimants a regular monthly payment to the dependants by the nationalised insurance company or bank would be desirable.

Unless these ideas are accepted by the legislature and embodied in appropriate enactments Courts are bound to administer a.nd give effect .. to the Jaw as it exists today.

We conclude by statmg that the view of the learned Judges of the High Court has no support in law and hold that proof of negligence is necessary. before the owner of the insurance company could be held to be liable for the payment of compensation in a motor accident claim case.

But as we have found that the vehicle owner was liable for negligence of the driver and have upheld the amount of damages awarded, we dismiss this appeal. with cost to the first respondent.

P.B.R.

Appeal dismissed.

(119/l A.Cl. 5~.

(2) 1971 A.C.Ut9.

MINU B. MEHTA AND ANOTHER

BALKRISHNA RAMCHANDRA NAYAN AND ANOTHER

January 28, 1977

A. N. RAY

M. H. BEG

P. S. KAILASAM, JJ.

Motor Vehicles Act, 1939

S. 95(v)(b)(i)

s. 95(i)(b)

Chapter VIII of the Motor Vehicles Act

s. 95(1)

s. 95(1)(b)

s. 110(1)

Madras High Court

December 13, 1976

F. S. Nariman

J. M. Patel

B. R. Agarwala

R. D. Hattangadi

George Kurien

Urmila Sirur

K. K. Singhvi

V. N. Ganpule

KAfLAAAM

Article 136

Bombay High Court

OE of the Motor Vehicles Act

Balkrishna Ramchandra Nayan

14th April, 1969

Mala ti - M. Deshmukh

Motor Accidents Claims Tribunal

Malati M. Deshmukh

15th May, 1969

Haji Ali

\Vorli

Jawa.kar

Jimmy Dara Engineer

J>artapsingh Chavan

22nd April, 1969

Malati M. D"5hmukh

Balkrishna Ramachandra Nayan

Malati M. Deshmukh

High Court of Bombay

section 11

Nariman

Jawakar

Andhra Pradesh High Court

Motor Vehicles Act

England

Road Traffic Act 1934

Road Traffic Act, 1930

Chapter VIII of the Act

Road Traffic Act, 1940

Road Traffic Act, 1934

Section 94

Section 95

Section 95

section 108

section 95

section 95(1)

section 95

section 95

Section 96

Hattangodi

section 11

Section 110(1)

Vaidya

Mridul

section 95

Chapter VIII of the Act

Patna High Court

Kerala High Court

Krishna Iyer

section 95

13th December, 1976

Cl. 5


NARPAL SINGH & OTHERS

STATE OF HARYANA

February 1, 1977

[P. N. BHAGWATI AND S. MURTAZA FAZAL ALI, JJ.]

Sentence-Rig/it to be heard by the accused on the question of selllence and the duty of the court to pass a sentence after cJtrviction-Code of Criminal Procedure (Act 2 of 1974), 1973-Section 235(2)-De novo trial 1101 necessary in such cases 011 the question of convictions.

Appellants Nirpal Singh, Gurdev Singh and Jagmohan Singh were convicted under s. 302 I.P.C. and sentenced to death while the appellants Devinder Singh, and Maha Singh were convicted under s. 302 but sentenced to imprisonment C for life by the Sessions Judge. The High Court upheld the convictions as also the sentences while accepting the reference under s. 366 made by the Sessions Judge and dismissing the appeals by the accused.

On appeal by special leave, the appellants contended inter alia, that the sentence passed against them was bad as the Sessions Judge, after delivering the judgment of conviction has not given any opportunity to them of being heard on the question of sentence separately.

Dismissing the appeals of Devinder Singh irnd Maha Singh and partly allowing the appeals of the other three appellants, the Court maintained their convictions set aside the sentence of death passed on them and remitted their caes to the trial Court for passing sentences on them afresh under s. 235(2) of the Criminal Procedure Code. The Court

HELD : (1) Though the commitment inquir.y was held under the Code of E Criminal Procedure, 1973, since the procedure under s. 235(2) has not been adopted by the Sessions Judge, the sentence of death passed on the a, ppellants, Narpa\ Singh, Gurdev Singh and Jagmohan Singh in the instant ca, se cannot be sustained.

Since Devinder Singh and Maha Singh have already been given sentences of life imprisonment which is the minimum sentence that could be

pased under s. 302, remelting their cases to the Sessions Judge was not necessary. (902 F-G, 903 EJ

fjanta Singh v. State of Punjab [1977] 1 S.C.R. 229, reiterated.

(2) When a case is remitted by this Court to the SeS!lions Court for giving a hearing on the question of sentence under s. 235(2) of the Code of Criminal Procedure 1973, there. would be fresh evidence and the principle that the

circumstances of the present case or to cases where the trial has ended in a G conviction but the matter has been remitted to the trial Court for hearing the case only on the question of sentence. [903 A-DJ ·

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 149 of 1976.

Appeal by Special Leave from the Judgment and Order dated H 19-7-1975 of the Punjab & Haryana High Court in Criminal Appeal No. 1205 of 1974 and Murder Reference No. 60 of 1974.

SUPREME COURT REPORTS

[1977] 2 $.C.R~

Frank Anthony, Harbans Singh and Harjender Singh for Appellants Nos. 1, 2 and 4.

A. N. Mu/la, and Harbans Singh for Appellants Nos. 3 and 5.

R. L. Kohli for the Respondent.

The *Judgment of the Court was delivered by

FAZAL Au, J.-Atfer having gone through the entire evidence on the record and the judgment of the courts below and after hearing counsel for the parties and for the reasons that we have alreaay given, we are fully satisfied and convinced that the prosecution case against the appellants has been proved beyond reasonable doubt and that the appellants were rightly convicted by the Sessions Judge anCl the High Court.

This, however, does not dispose of the matter completely, because it appears that the commitment inquiry was held under the Code of Criminal Procedure, 1973 and the Sessions Judge after de\jvering the judgment of conviction has not given any opportunity to the accused of being heard on the question of sentence separately.

In Santa Singh v. State of Punjab(') this Court has taken the view view that under the provisions of the Code of Criminal Procedure, 1973, it is incumbent on the Sessions Judge delivering a judgment of conviction to stay his hands and hear the accmed on the question of sentence and give him an opportunity to lead evidence which may also be allowed to be rebutted by the prosecution.

This procedure has not been adopted by the learned Sessions Judge and, therefore, the sentences of death passed on the appellants Narpal Singh, Gurdev Singh and Jagmohan Singh cannot be sustained although the convictions recorded against them are confirined by us and will not be reopened under any circumstance whatsoever.

Counsel for the State has drawn our attention to the fact that irr some cases the accused have raised the question that once the case is remitted to the Sessions Judge, then the accused is entitled to claim a de nova trial on the question of conviction also.

In this connection, reliance was placed on Pyare Lal v. State of Pwzjab( 2). In the first place, this case was based on an interpretation of ss. 251 to 259 of the Code of Crimina~ Procedure, 1898, and the reason why this Court held that the proceedings by a sucssor Judge cannot be started from the stage left out by his predecessor was that a Judge who had heard the whole of t)le evidence before had the advantage of watching the demeanour of the witnesses which would be lost if the successor Judge was to proceetl from the stage left by his predecessor.

It is true that under s. 326 of the Code of Criminaj Proce-

*Only pages 33 to 36 of the Judgment are reported as per directions of the Court

(I) [1976] s.c.c. 190.

NARPAL SINGH v. HARYANA (Fazal Ali, J.) 903

dure, 1973, there is discretion given to the successor Magistrate t\)

act on the evidence already recorded and not to hold a de nova trial and no such provision is made in case of a trial by the Sessions Judge or a Special Judge.

The ratio of Pyare Lal's case (supra), however, is not applicable to the present case.

Once the Judge who hears the evidence delivers a judgment of conviction, one part of the trial comes to an end. The second part of the trial is restricted only to the question of sentence and so far as that is concerned, when a case is remitted by us to the Sessions Court for giving a hearing on the question of sentence under s. 235(2) of the Code of Criminal Procedure, 1973, there would be fresh evidence and the principle that the Sessions Judge may not act on evidence already recorded before bis predecessor •. and must conduct a de nova trial would not be violated.

In these circumstances, therefore, the ratio of Pyare Lal' s case mentioned above cannot be applied or projected into the facts and circumstances of the present case or to cases where the trial has ended in a conviction but the matter has been remitted to the Trial Court for hearing the case only on, the question of sentence.

So far as the case of Devinder Singh and Maha Singh are cqncerned as they have already been given sentences of life imprison- Ililent and this is the minimum sentence that could be passed under D s. 302 I.P.C. it is not necessary to remit their cases to th~ Sessions Judge.

The convictions and sentences of these two accused are, therefore, confirmed and their appeals are dismissed.

As regards the appeals by the three other appellants, namely, Narpal Singh, Jagmohan Singh and Gurdev Singh, we confirm their convictions which would not be reopened under any circumstances, but set aside the sentence of death passed on them and remit their cases to the E Trial Court for passing sentences on them afresh after hearing the accused in the light of the observations made by 'Us and lo this extent only the appeals of the three appellants are allowed so far as their J>entences are concerned.

S.R.

Appeals partly allowed.

NARPAL SINGH & OTHERS

STATE OF HARYANA

February 1, 1977

P. N. BHAGWATI

S. MURTAZA FAZAL ALI, JJ.

Code of Criminal Procedure

Section 235(2)

s. 302

I.P.C

s. 302

s. 366

Devinder Singh

Maha Singh

s. 235(2)

s. 235(2)

Narpa\ Singh

Gurdev Singh

Jagmohan Singh

s. 302

[1977] 1 S.C.R. 229

s. 235(2)

Code of Criminal Procedure 1973

Frank Anthony

Harbans Singh

Harjender Singh

A. N. Mu

R. L. Kohli

FAZAL Au

Code of Criminal Procedure, 1973

Code of Criminal Procedure, 1973

Narpal Singh

ss. 251 to 259

s. 326

Pyare Lal

s. 235(2)

Code of Criminal Procedure, 1973

s. 302

I.P.C


CHAIRMAN, BOARD OF MINING EXAMINATION &

ANOTHER

RAM JEE

February 3, 1977

[V. R. KRISHNA IYER AND A. C. GUPTA, JJ.]

Coal Mines Regulations-Regulation 26-lnterpretation of.

Rules of natural justice-Concept of reasonably opportunity cannot be fitted into a rigid 111011/d-Need for a strict liability-Code for subterranean occupa __, lions.

Under regulation 26(1) if, in the opm1on of the Regional Inspector, a person to whom an Overman's, Sirdar's, Engine-driver's, Shot-firer's, or Gastesting Certificate bas been granted is incompetent or is guilty of negligence or misconduct in the performance of his duties, he may, after giving th<' person an opportunity to give a written explanation, suspend his certificate by an order in writing. U/r 26(2) he shall within a week of such suspension report the fact to the Board together with all connected papen; including the explanation, if any received from the person concerned. U/r 26(3) the Board may, after such inquiry as it thinks fit, either confirm or modify or reduce the period of suspension of the certificate, or cancel the certificate.

The respondent, a shot-firer in a colliery, violated the provisions of the Coal Mines Regulations by entrusting his risky, technical work to an unauthorised person which resulted .in an accident injuring one Bhadu.

The Regional Inspector u/r 26(1) gave him an opportunity for an explanation in writing and after considering the materials before him forwarded the papers to the Chairman of the Board together with a recommendation for cancellatll)n ef. the certificate under Regulation 26(3 ).

The Board bestowed its judgment on !he materials gathered which included the delinquent's admission, and cancelled the shot-firing certificate. The High Court allowed the writ petition assai.ling the said orders of cancellation of the licence and held : (1) The Board had no jurisdiction since the Regional Inspector did not suspend the certificate first before reporting (2) The Regional Inspector had no power to recomme.n_d but only to report and so the Board's order influenced by the recommendation was bad in law and (iii) the Board should have given a fresh opportunity to be -?--- hcanl before cancellation of the certificate and its absence violated nau:.ral ' justice, voiding the order.

Accepting the Court,

HELD : (1) Law is meant to serve the living and does not beat its abstract wings in the jural void. Its functional fulfilment a~ 'social engineering' depends on its scrutinized response to situation, subject-matter and the complex of realities which require ordered control. A holistic understanding is simple justice to the meaning of all legislations.

F1:agmentary grasp of rules ca•n misfire or even backfire, as in this case. [906 H, 907 A]

(2) The judicial key to construction is the composite perception of the daha and the dalli of the provision. To be literal in meaning is to see the skin and miss the soul of the Regulation. [909 A-BJ

(3) Over-judicialisation can be subversive of the justice of the law. To invalidate the Board's order because the Regional Inspector did not suspend the certificate is a fallacy.· Tbe Board's vower is independent and is ignited by

' 1

CHAIRMAN, BOARD OF MINING v. RAMJEE (Krishna Iyer, !.) 905

!he report, which. exists in this case, of the Regional Inspector. There is an A overall duty of oversight vested in the board to enforce observance of mies of safety. [909 DJ

( <:) To set aside the order on ihe ground that the Regional Inspector had no power to recommend but only to S!'Spend and report that his recommenda

lion influenced the Board's order is to enthrone a processual nicety do dcihrone plain justice. Suspension, on a-n enquiry, predicates a prior prima-facie finding

of guilt and to make that known to the Board implicitly conveys a recommen- B dation. The difference between suspension plus report and recommendatory report is little more than between Tweedledum and Tweedledee.

Recommendations are not binding but are merely raw materials for consideration.

Where there is no surrender of judgement by the Board to the recommending Regional

Inspector, there is no contravention of the cannons of natural justice.

[909 E-F, 9100-E]

( 5) Natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision-maker to the ma11 proceeded against, the form features and the fundamentals of such essential processual

propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice caa be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating.

Courts cannot look at law in the abtract or natural justice as a mere artifact.

Nor can they fit into a rigid mould the concept of reasonable opportunity.

If the totality of circumstances satisfies the Court that the party v.isited wilh D adverse order has not suffered from denial of reasonable opportunity the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures. In the instant case, the Board cannot be anathematised as condemning the man without being heard. The respondent has, in the form of an appeal against the report of the Regional Inspector, sent his explanation to the Chairman of the Board.

He . has thus been heard and compliance with Regulation 26 in the circumstances is complete. [909 G-H, 910 A-G]

Tereaesai's case (1970] 1 S.C.R. 251; Management of DTU [1973] 2 S.C.R.

E. 114; Tandon's case f!9741 4 SCC 374 referred to.

Observations ; Sensitive occupations demand stern juristic principles to reach at sc&pegraces, high and low, and not mere long drawn-out commissions whose verdicts often prove dilatory 'shelter' for the men in whom Parliament has entrusted plenary management. Any sensitive jurisprudence of colliery management must make it cardinal to punish the Board vicariously for any major violations and dreadful disasters, on macro-consideratiom-of responsibility to the community. The Board must quit, as a legal penalty, if any dreadful deviation. deficiency, default or negligence anywhere in the mine occurs.

This is a good case for new principles of liability, based on wider rules of sociological jurisprudence to tighten up the law of omission and commission at the highest levels.

Responsibility and penalty must be the concomitants of highly-paid power vested in the top-brass. Any deviance on the part of these high-powered authorities must be visited with tortious or criminnl liabilities. f908 F-H. 907 D-Fl

(The Court emohasised the need for evolving a code of strict liability G calling to utmost care not only the crowd of workers and others but the few who shall care or quit so that subterranean occupations necessary for the nation are made as risk-proof a-s technology and human vigilance pefmit).

CrvIL APPELLATE JURISDICTION : Civil Appeal No. 2294 of 1968.

Appeal from the Judgment and Order dated 25-9-1967 of the Madhya Pradesh High Court in Misc. Petition No. 595 /66.

L. N. Sinha, Sol. Gen!, B. Datta and Girish Chandra for the Appellants.

SUPREME COURT REPORTS

S. K. Gambhir, amicus curiae, for the Respondent.

The Judgment of the Court was delivered by

[1977] 2 s.c.R.

KRISHNA IYER, J.-If the jurisprudence of remedies were understood and applied from the perspective of social efficaciousness, the problem raised in this appeal would not have ended the erroneous way it did in the High Court.

Judges must never forget that every Jaw has a social purpose and engineering process without appreciating which justice to the law cannot be done.

Here, the socio-legal situation we are faced with is a colliery, an explosive, an accident, luckily not lcthl, caused by viobtion of a regulation and consequential cancellation of the certificate of the delinquent shot-firer, eventually quashed by the High Court, for processual solecisms, by a writ of certiorari.

We may state at the outset that the learned Solicitor General agreed that the appellant, the Board of Mining Examination, would be satisfied if the law, wrong1y laid down by the High Court .. were set aside and declared a right and he was not insisting on the formal reversal of the order affecting the respondent (who 1s unrepresented D before us). We proceed on that footing.

The few necessary facts may be narrated to bring up the legal issue in its real setting.

The respondent was a shot-firer in a colliery and being a risky, technical job, had to possess a certificate for it.

He handed ever an explosive to an unskilled hnd who fired it, an accident occurred and one Bhadu, employed in the mine, was injµred.

The Regional Inspector of Mines immediately enquired into the cause of the accident and found, on the respondent's virtual admission, qualified by some prevarication, that the shots were fired not by himself but by a cutter, an unauthorised person for shot-firing to whom the respondent had wrongfully entrusted the work.

Thereby he contravened the relevant Coal Mines Regulations.

The Regional Inspector gave him an opportunity for explanation and, after considering the materials before him, forwarded the papers to the Chairman of the Board together 1with a recommendation for cancellation of the certificate under Reg. 26.

The Board bestowed its judgment on the materials gathered by the Regional Inspector at the enquiry, whicb included the delinquent's admission, and cancelled the shot-firing certificate.

The said cancellation was shot down by a writ of the Court on the ground of violation of Reg. 26.

Was Regulation 26, in the context and setting of the Mines Act, misinterpreted by the High. Court at all?

This is the short question canvassed before us.

W<e permit ourselves a few observations which II serve as perspective-setters.

Law is meant to serve the living and does not beat its abstract wings in the jural void.

Its functional fulfilment as social engineering depends or its sensitized response to situation, subject-matter and the complex of realities which require

' •

~. •

• •

9,07 "'

<irdered control.

A holistic , understanding is simple justice to th~ meaniqg,.of all ; legi, slatfo!ls: :fagffienary grasp of rules can misfire or even backfire,' as in this case. It is a - notorious fact that <:ollieiieis--:fodian collieries, both before . and after ' nationalisation- . are strategic sources' of the natiqn's e( itP, d, oper, ati\}nally, areas of tragic human hazards.

We need coal, we want miners to bring it from the ~O\V.els of the earth.

The da1rnerous te".hnology is not yet so perfect in India as to ensure risk-free extraction.

And, after many lives have been lq_st.by tge _qeglect of operatives or .supervisors or supine bosses, follows the scenario of tears and tom-down homes, a little monetary compensation, a flutter in Parliament, a longdrawn-out Commission, a routine Report about lapses and recipes and the little man's .life-or death lot continuing to receive callous

onsi<leration at the hands of the law, law-matter, law-enforcer-this sombre colliery disaster .sequence must educate and inform the jurispru_dence of hlgh-rislq operations. In short, the M1nes Act (and Regulations) i'!iust receive its judicial construction in the total setting, teleclogically approached, not fragmentarily dissected.

The relevant regulation is only a tiny inset in the farger justice of the statute.

The Mines Act has a scheme designed to avoid accidents and .ensure safety.

A system of certificates, supervisions and penalties is part of this scheme.

The broad responsibility for due enforcement of the Act rests on the Board and the relevant regulation casts liabilities on' the lesser men.

Any sensitive jurisprudence of colliery maI)agement must make it cardinal to .punish the Board yicariously for any major violations and dreadful disasters, on macro-considerations of responsibility to the community.

The Board must quit; as , a , legal penalty, if any dreadful deviation, deficiency, default or negl_igence anywhere in the mine occurs.

In the present case a microbreach is peii:g .punished, but when major mishaps occur the top echelons, on account of inadequacies in colliery codes, escape and make others the scapego, ats.

Although, in this case, only injury, not death, has occurred, there is a good case for new principles ot . !ability, based on wider rules of sociological jurisprudence, to tighten up the law of omission and commission, at the highest .levels.

Responsibility and penalty must be the concomitants of

highlypaid power v.ested in the top-brass. ·

.Back to .th~ pe<lestrjan statement of, facts.

The rspondent's {:_unous contention, accepted by the learned Judge, is best understood after reaig Regulation 26 :

"26. Suspension of an Overman's, Sirdar's, Engine- .

Driver's, shot-firer's, or Gas-testing Certificate-

(l) If, .in , the opinion of the Regional Inspector, a person to whom an Overman's, . Sirdar's, Engine-driver's,

hot-firer'_s, or Gas-esting Certificate has been granted is mcompetent or is guilty of negligence or misconduct in the

.prormance of.his duties, the Regional Inspector may, after

vmg the person an opportunity to give a written explanation, suspend his certificate by an order in writing.

10-206SCT /77

968 SUPREME COU!tT ll.EPORTS [1977] 2 s.C.R.

(2) Where the Regional Inspector has suspended a certificate under sub-regulation (1) he shall writhin a week of such suspension report the fact to the Board together with all connected papers including the explanation if any received from the person concerned.

(3) The Board may, after such inquiry as it thinks fit, either confirm or modify or reduce the period of suspem; ion of the certificate, or cancel the certificate."

The plain purpose of the regulation is to pre-empt further harm by suspending the certificate of the shot-firer 'if in the opinion of the Regional Inspector' he 'is incompetent or is guilty of negligence or misconduct in the performance of his duties ... after giving the P'rson C an opportunity to give a written explanation'.

This suspension is itself a punishment liable to confirmation, modification, reduction of the period of suspension or, by way of enhancement, cancellation ot the certificate by the Board.

Before taking such action by way ot cessation, as it were, the Board gets a report from the Regional Inspector of the fact of suspension and makes 'such enquiry as it thinks fit'.

In the present case, the Board had an explanation D (styled an appeal) from the repondent, and also a recommendation by the Regional Inspector for cancellation of the certificate.

The latter had not suspended the delinquent but had merely held an enquiry, reached the prima facie view .of guilt and and instead of suspension at once, only made a recommendation to the Board for cancellation.

The Regional Inspector has, among his statutory duties, the supervision of the observance of the safety rules and the holding of enquiries (see sections 7 & 14). He has to report to the Board on breaches of regulations and conditions.

The Board, in its turn, has the over-all charge of the safe management o:E the mine.

Derelictions and violations must reach its vigilant eye! and be viiited with prompt action.

Jurisprudentially speaking, there is need to cast an obligation on the Board and the higher inspectorate not to be negligent, indifferent or insoucient in the discharge of its overall responsibility which includes anticipation of likely miihaps and introduction of' the latest measures to promote safety for the men working in the dark depths at the mercy of the wicked mood of Yama.

Any deviance on the part of these high-powered authoriti1!s must be visited with tortious or criminal liability.

Such is the price which high position must pay for the consequences of calamitous failures.

Sensitive occupations demand stern juristic principles to reach at scapegraces, high and low, and not mere long-grown-out 1:ommissions whose verdicts often prove dilatory 'shelter' for the men in whom Parliament has entrusted plenary management.

We emphasize this matter to awaken the law-makers to evolve a code of strict liability calling to utmost care not only the crowd of workers an:! others but the few who "shall care or quit so that subterranean occupations necessary for the nation are made as risk-proof as technology and human vigilance permit.

CHAllU..tAN, BOARD OP MINING v. llAMJEE (Krishna lyl!r, !.) 909

Unfortunatly, the High Court surren?ered to n.arowness ot interpretation of Regulation 26 by acceptmg the subm1ss1on of t?e respondent.

To be literal in meaning is to see the skin and miss the soul of the Regulation.

The judicial key to construction is the . composite perception of th~ deha and the dehi of the provision.

So viewed, Reg. 26 is easy of comprehension.

The High Court held that the order of cancellation was illegal for a few reasons which strike us as untenable.

The argument nms thus.

Without first suspending the certificate, the Regional Inspector cannot report to the Board and without such a report following upon a suspension the latter cannot take seisin of the matter.

Since the Regional Inspector did not suspend the respondent, the Board had no jurisdiction.

Secondly, the Regional Inspector had no power to recomml!nd, but only to report and so the Board's order, influenced by the recommendation, was bad in law.

Thirdly, the lloard should have given a fresh opportunity. to be heard before cancellation of the certificate and its absence in the present case violated natural justice, voiding the order.

All the three points serve to warn the courts how over-judicialisation can be subversive of the justice of the. law.

Now, how can the cancellation order by the Board be bad for failure to suspend the certificate by the Regional Inspector ? The Board's power is independent and is ignited by the report of the Regional Inspector.

Such a report exists here.

There is an overall duty of over sight vested iR the Board to enforce observance of rules of safety.

To invalidate the Board's order because. the Regional Inspector did not suspend the certificate is a fallacy.

Now to the next point.

The vice that vitiates the Board's order is stated to be the recommendation contained in the Regional Inspector's report.

Had he suspended and reported, he would have been

in order.

But suspension, on an enquiry, predicates , a prior prima facie finding of guilt and to make that known to the Board imphcity conveys a recommendation.

The difference between suspension plus F report and recommendatory report is little more than between Tweedledum and Tweedledee.

And to set aside an order on such a ground is to enthrone a processual nicety to dethrone plain justice.

The last violation regarded as a lethal objection is that Board did not enquire of the respondent, independently of the one Jone by the Regional Inspector.

Assmning it to be necessary, here the respondent has, in the form of an appeal against the report of the Regional Inspector, sent his explanation to the Chainnan of the Board.

He has thus been heard and compfonce with Reg. 26, in the circumstances, is complete.

Natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation no breach of natural justice can be complained of. Unnatural expnsion

910 1lUPR, EME COURT REPORTS [1977] 2 s.c.R ..

A of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating.

We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction.

No man shall be hit below the belt-that is the conscience of the matter.

Shri Gambir, who appeared as amicus curiae and industriously helped the Court by citing several decisions bearing on natural justice, could not convince us to reach a contrary conclusion. It is true that in the context of Art. 311 of the Constitution this Court :as interpreted the quality and amplitude of the opportunity to be extended to an affected public servant.

Certainly we agree with the principles expounded therein.

But then 'we cannot look at law in the abstract or natural iustice as a mere artifact. Nor can we fit into a rig; id mould c . the concept of reasonable opportunity.

Shri Gambhir cited before us the decisions in Teredesai('); Management of DTU(2 ) and Tandon( 3); and one or two other rulings.

The ratio theNin hardly militates against the realism which must inform 'reasonable opportunity' or the rule against bias. If the authority which take:; th1! final decision acts mechanically and without applying its own mind, the

order may be bad, but if the decision-making body, after fair and independent consideration, reaches a conclusion vJhich tallies with the recommendations of the subordinate authority whch held the preliminary enquiry, there is no error in law.

Recommendations are not binding but are merely raw material for consideration.

Where there is no surrender of judgment by the Board to the recommending Regional Inspector, there is no contravention of the canons of natural justice.

We agree with Shri Gambhir that the adjudicating agency must indicate in the order, at least briefly, why it takes the decision it does unless the circumstances are so clear that the concluding or decretal part of the order speaks for ito, elf even regarding the reasons which have led to it. It is desiratie also to ccmmunicate the report of the Inquiry Officer, including that part which relates to the recommendation in the matter of punishment, so that the repre- 8entation of the delinquent may be pointed and meaningful.

These general observations must be tested on the concrete facts of each case and every miniscule violation does not spe:tl illegality.

If the totality of circumstances satisfies the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures.

We are satisfied that the order of the Board cannot be anathematised as condemning the man without being heard.

The appeal, on the point of law, must be allowed but, in the light of the conc€ssion made, as stated earlier, we leave the formal order of the High Court undisturbed. No costs.

S.R.

High Court orders maintained. <ll [1970J 1 s.c.R. 2s1.

(2) [1973] 2. s.c.R. 114.

(3) [1974] 4 s.c.c. 374.

February 3, 1977

V. R. KRISHNA IYER

A. C. GUPTA, JJ.

Coal Mines Regulations

Bhadu

RAMJEE

Tweedledum

Tweedledee

Tereaesai

(1970] 1 S.C.R. 251

Tandon

Parliament

L. N. Sinha

B. Datta

Girish Chandra

S. K. Gambhir

KRISHNA IYER

Mines Act

Mines Act

sections 7 & 14

Yama

Jone

Gambir

Art. 311

Gambhir


PRABHAT K1RAN MAlTHANl & ORS.

UNION OF 1NDIA & A.Nll.

February 3, 1977

[M. H. BEG, C.J. AND P. s. KAILASAM, J.]

Pay Scales and revised pay scales of computers shown as identical in the Second Pay Commission Report-Right to be equated as Research Assistants Grade ll both in status ahd in pay is entirely within the sphere of the function of the Pay Commission-Effect of the Report of the Third Pay Commission.

Constitution of India, 1950:......Article 32" caii be resorld to 01ily for the enforcement of Fundamental Rights~Equation of posts is not a duty which the court under Art. 32 or the High Court under Art. 226 was competent to carry out.

In the 1959 Second Pay Commission Report, the pay scales and the re• vised pay scales of the Computers were shown as identical with that of the Research Assistants Grade II, even though the 'two posts were shown as separate classes.

The Third Pay Commission Report, however, showed that

the Computers not only belonged to a separate class of their own but received D less pay than Research Assistants' Grade II. The petitioners assailed this view under Art. 32 of the Constitution as violative of Articles 14 and 16 of the Constitution on the ground that they had a Fundamental Right to be equated both in status as well as in pay to that of Research Assistants, Grade II.

Dismissing t)le petition tlie Court.

HELD : ( 1) Equation of posts and equation of pay are matters entirely within the spli:ere of the function of the Pav Commission.

These are questions E entirely unfit for determination upon a petition for a writ for the enforcement of Fundamental Rights. It requires; firstly, formulation of correct criteria for each classification. and. secondly. the application of these criteria to facts relating to the functions aild the qualifications for each class.

The Pay Coriimission had done thi!l in the instant case elaborately. [912 F, 913 B-C]

(2) The Court. under Art. 32. neither has wider powers nor. can do it with greater facility than a High Court cannot, when exercising its writ issuing jurisdictiort. This Court had' already laid down that equation of posts is not a duiy .. Which the High Court was oompetent to carry out in proceedings under Art. 226. (913 DJ

U11io11 of India v. G. R. Ptabliavalkar & Co. [1973] (3) SCR 714, referred to. '

(:l) The question, whether thete is or there is not enough material on record in a particular case to establish the basis of a particular discrimination is one of fact for the determina.tion of which no hard and fast rules can be laid down. A discrimination which involves the invocation of Art. 14 is not• G necessarily covered by Art. 16.

In the instant case, even the material relied upon by the tretitioners shows the Computers and Research Assistants Grade II are cla5siJ1ed separately; and, tlrerefore, the validity . of that classification cannot be displaced by the kind ef evidence relied on.

Until that classification is shown to be unjustified, no question of violating Artide 16 . can arise.

[913 G-H, 914 A]

Purshottam Lal and Ors. v. Union of India & Anr. [19731 (1) sec 651 B held inapplicable.

ORIGINAL JURISDICTION : Writ Petition No. 43 of J 976.

S. C. Agarwal for the Petitioners.

SUJ'REME COURT REPORTS

[1977] 2 §.8.R,

L. N. Sinha, Sol Genl. and B. Ddtta for Respondents.

The Judgment of the Court was delivered by

BEG, C.J.-The petitioners before us are employees of the Forest Research Institute and Colleges Dehra Dun in the post11 designated a11 Computers.

Their grievance is that they should be treated as Re- 11earch As11istants Grade II and given the same scale of pay and other conditions of service as are applicable to Research Assistan'ts Grade

II.

The respondents, Union of India and the Pr1!sident of the Forest Research Institute deny that the petitioners are entitled, to bi~ treated as Research Assistants Grade II.

The petitionen; rely upon certain alleged admissions on behalf of the opposite parties, on certain classifications of Computers in the past, prior to the recommenda1ions of the Third Pay Commission 1973 as well as on the last menti.oned report of the Central Pay Commission.

Furthermore, learned counsel has invited our attention to the case of Purshottam Lal and Ors. Vs.

Union of India and another [1973 (1) S.C.C. 651] whereupon a Writ Petition by Computers, they were shown a11 having bee11 !ven identical scales of pay with the Research Assistants Grade H.

Thig decision however, does not deal with any \:Ontrciversy as to the correct classification of computers in comparison with Research Assistants Grade II.

All we need say is that this ca'se: deals with the position under the Report of 1959 of the Second Pay Commission which has no bearing on the position which follows frorri the Repc-rt of the Third Pay Commission of 1973.

Moreover, it is evident that even at that time Research Assistants Grade II and Computen wei:e shown a8 separatl) classes even though their pay scales and the revised! pay 1cales were shown as identical.

Thus the claim of the petitiom:rs is that this Court should not only include the Computers amon.gst Research Assistants Grade II, which is not borne out even from th• Report of the Second Pay Commission, but go further and equate their pays, so that, even though they belong to different classes, their scales of pay may be identical.

We are afraid this is a matter which lay entirely within the sphere of the functions of the Pay Commission.

This Court cannot satisfactorily decide 'uch disputed queations on the salender material on which the learned counsel for the peti1ioner relies in order to displace what appears to us to be, prima fade, th•

ellcct of the Report of the Third Pay Commission of 1973.

This report shows that Computers not only belong to a separate clas:s ol their own but received less pay than Research Assistants of Grade II.

Learned Counsel for the petitioner's tried to get out of the report of the Third Pay Commission contained in Chapter XVII relating to the Economists and Statisticians, wherein Computers are mentioned and dealt with in paragraphs 32 to 34, by asserting that their case should be covered by either Chapter XV, whic:h deals with "Scientific Services" (specifically mentioned therein) or Chapter XXI, concerned with Ministry of Agriculture, where the Forest Research Institute and College's are mentioned in paragraphs 58 onwards.

It seems to us to be erroneous to attempt to place Computers in Ch2, pter XV, which deals with specified "Scientific Services" where Computers are not mentioned, or in Chapter XXI, which also does not mention Com-

', Afr- '

P. K. MAITHANI V. UNION (Beg, C.J.) 913

puters at all.

Learned Counsel for the petitioners tried to take advantage of the fact that paragraphs dealing with thx Forest Research Institute in Chapter XXI do not mention Computers.

It does not follow from this that Computers necessarily belong to the class into which the petitioners want 10 get in without showing what the criteria and fwictions of persons entitled to be treated as Research Assistants of Grade II are as compared with the Computers who, .prima f acie belong to another class of workers dealing with statistics even though they may be in some way assisting in research or three may be some common functions.

Indeed, everyone working in a research institute could, in some way, be said to be assisting in research: We think that these are questions entirely unfit for determination upon a petition for a Writ for the enforcement of fundamental rights. It requires : firstly, formulation of correct criteria for each classification; and, secondly, the application of these criteria to facts relating to the functions and qualifications for each class. The Pay Commission had done this elaborately.

The learned Solicitor General has invited our attention to the case of Union of India v. G. R. Prabhavalkar & Ors. reported in 1973

(3) S.C.R. 714, where this Court held that equation of posts is not a duty which the High Court was competent to carry out in proceedings under Article 226. We do not think that we have wider powers or that we can do with greater facility what a High Court cannot when exercising its writ issuing jurisdiction.

The learned counsel for the petitioners has tried to take us at some length into the material on which he assails the yiew taken by E the opposite partie's.

We are unable to agree that, on the material placed before us, we can accept the petitioners' interpretation of facts to which our attention was drawn.

We are unable to consider other material also to which our attention was attemp, ted to be drawn because, on the basis of the materials shown to us_, W() are satisfied that such matters are not fit for determination by us on the kind of material sought to be placed before us.

Finally, learned counsel for the petitioners pleaded that we may permit him to raise this matter before an Administrative or Service Tribunal if and when one is constituted. It is not necessary for us

to give him any permission to do that. We may however observe that the petitiop.ers are at liberty to pursue other remedies, in.eluding those which may be available to them if any such Tribunal is set up G in future.

We want to make it clear that the question whether there is or there is not enough material on record in a particular case to establish the basis of a particular discrimination is one of fact for the determination of which no hard and fast rules can be laid down.

Moreover, a discrimination, which involves the invocation of Articie

14, is not necessary covered by Article 16. We do not propose to H discuss here the differences between Articles 14 ap.d 16, because we think that, eveµ the material relied upon on behalf of the petitioners before us shows that Computers and Research Assistants Grade II are classified separately.

The validity of that classification cannot,

' A

SUPREME COURT REP, ORTS [1977] 2 s.c.R. 914

we think, be displaced by the kind 9f evidnce .relied upon on behalf of the petitioners. And, until that classification is shown . to .... be unjustified, no question of violating Al; ticle 16 can arise .. We, the.refore, Ieave the petitioners to other means of redress if they still feet aggrieved.

The result is that we dismiss the Writ Petition,. but make no order as to costs.

s. R.

Petition dismissed.

PRABHAT K1RAN MAlTHANl & ORS

UNION OF 1NDIA & A.Nll

February 3, 1977

M. H. BEG, C.J.

P. s. KAILASAM, J.

Constitution of India

Article 32

Art. 32

Art. 226

Second Pay Commission

Third Pay Commission

Art. 32

Articles 14 and 16

Art. 32

Art. 226

Art. 14

Art. 16

Purshottam Lal

Union of India

sec 651

S. C. Agarwal

L. N. Sinha

B. Ddtta

BEG

Central Pay Commission

Third Pay Commission of 1973

P. K. MAITHANI

Union of India

Article 226

Article 16

Articles 14