.""-

PRADESH KUMAR BAJPAI v.

BINOD BEHARI SARKAR

March 21, 1980

rs. MURTAZA FAZAL ALI, P. s. KAILASAM AND A. D. KosHAL, JJ.]

Double Protection-Once the requirements of Rent Act are satisfied, the tenant cannot claim the double protection of invoking the provisions of the Transfer of Property Act or the terms of the contract-Section 114 of the Transfer of Property Act, (Act 4 of 1882) and section 3 of the U.P. (Temporary) Control of Rent and Eviction Act.

The appellant plaintiff filed a suit for eviction of the respondent tenant and for arrears of rent and mesne profits. Though no specific plea of re1 ief against forfeiture for non-payment of rent under section 114 of the Transfer <>f Property Act was taken in the pleadings, during the. course of the arguments,

the tenant claimed the benefit under section 114 of the Transfer of Property Act. The Trial Judge found that the respondent \\'as a defaulter and held tha~ the notice to quit was a valid one but found that as section 114 of the Trans fer of Property Act was applicable to the facts of the case and the balance of convenience being with the respondent tenant, dismissed the suit for possessipn, but gave a decree for arrears of rent. In appeal the first appellate court held that the trial Court was in error in granting relief against forfeiture under Section 114 of the Tansfer of Property Act and decreed the suit as prayed for.

On serond appeal, the High Court after making a fresh appraisal of the evidence came to the conculsion that as per the terms of the lease deed of 1955 six months' notice was necessary even if the premises were not taken for manu facturing purposes and as required notice of six months was not given the suit was not maintainable and as such liable to be dismissed.

Allowing the plaintiff's appeal by special leave, the Court,

HELD : 1. Once the requirements of Rent Act are satisfied, the tenant cannot claim the doubfe protection of invoking the provisions of the Transfer of Property Act or the terms of the contract. The provision of section 114 of the Transfer of Property Act cannot therefore be read into the U.P. (Temporary) Control of Rent and Eviction Act.

[99 B & D, 100 DJ

In the instant case :

(a) The question of termination of the lease by forfeiture does not aris~ on the facts of the case; [100 BJ

(b) after the Rent Act cante into force, the landlord cannot avail himself of clause 12 which provides fdr forfeiture, even if the tenant neglected to pay the rent for over two months; [100 BJ

(c) the landlord cannot enter into possession forthwith without notice. The H only remedy for him is to seek eviction under the provisions of the Rent Act; and [100 B C:1

A ( d) in such circumstances, the tenant cannot rely on S. 114 of Transfer cf

l'roperty Act and claim that he should be given an opportunity to pay the arrears of rent, even though the requirements of section 3(1) bad been fulti.lled,

[100 CJ

V. Dhanapal Chettiar v. Yasadai Amma/, [1980] I S.C.R. 334 at 350-51; followed.

2. Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act Ill -restricts the rights of the landlord to have the tenant evicted.

But for the statutory provisions, the landlord would be entitled to evict the tenant accord: ing to the terms of the contract or the provisions of the Transfer of Property Act. As the Rent Act has restricted the power of the landlord to evict the tenant except in accordance with the provisions of the Act, the terms of the contract and the provisions of the Transfer of 'Property Act to that extent are no longer applicable. [97 C-EJ

3. -Jn the instant case :

(a) the condition required under section 3(1) of the U.P. Act had been satisfied and permission by the District Magistrate was rightly granted and suit ftled as contemplated by section 3 (I); and [98 A]

(b) the notice is based on default of payment of rent for more than three months and called upon the tenant to vacate the premises a =nth after the rec.eipt of the notice if he failed to pay the rent as required under section 3 of the U.P. Act. [98 B-CJ

CrVJL APPELLATE JURTSDICTION : Civil Appeal No .. 1235/70.

E Appeal by Special Leave from the Judgment and Order dated

25-9-1969 of the Allahabad High Court in Second Appeal No. 1520 of 1966.

P. Govinda Nair, S. Ba'akrishnan and S. Q; Sambandan for the Appellant.

Yogeshwar Prasad, S. K. Bagga, Mrs. S. Bagga, Mrs. Rani Clrabra and Shit/a Prasad for the Respondent.

The Judgment of the Court was delivered by

KAILASAM, J,-Tbis appeal is by special leave by the plaintiff against the judgment and decree of the High Court of Judicature at Allahabad in Second Appeal No. 1520 of 1966,

The plaintiff Pradesh Kumar Bajpai who is the owner of premises No. 048/128-129 let a portion of the premises to the respondent Binod Behari Sarkar in the year 1949 for carrying on his business of manufacturing blocks and other printing materials. In October, 1955, the plaintiff let out the entire premises on a monthly rent of Rs, 200/-. The p!ilintiff filed the suit on the ground that the respondent had defaulted in payment of rent and prayed for a decree for ejectment and for being put in possession of the premises and for arrears of rent

,. •

PRADESH KUMAR v. BINOD BEHAR! (Kailasam, J.) 95

and or mesne profits pendente/ite at the rate of Rs. 200/· per month.

Tue defendant denied that he was a defaulter stating that he was always ready and willing to pay the dues and the respondent had deliberately declined to accept the rent. Though no specific plea of relief against forfeiture for non-payment of rent under section 114 of the Transfer of Property Act was taken in the pleadings, during the course of the arguments, the tenant claimed the benefit under section 114 of the Transfer of Property Act.

The Civil Judge who tried the suit found that the tenant was a

dfaulter in a sum of Rs. 6269 86. He further held that the notice to quit was a valid one but found that as s.114 of the Transfer of Property Act was applicable to the facts of the case and the balance of convenience being with the defendant, dismissed the suit for possession, but gave a decree for the arrears of rent. The plaintiff aggrieved by the decision of the trial Court went up in appeal to the District Judge who allowed the appeal holding that the tenant was a defaulter within the meaning of S.3 of the U.P. (Temporary) Control of Rent and Eviction Act. Disagreeing with the trial Court, the learned Judge held that the trial court was in error in granting relief against forfeitures under S.114 of the Transfer of Property Act and decreed the suit as prayed for.

Tue defendant preferred a Second Appeal to the High Court.

The High Court after making a fresh appraisal of the evidence came to the conclusion that the premises were taken for manufacturing purposes in 1955. On a consideration of the terms of the lease deed of 1955 it found that six months' notice was necessary even if the premises were not taken for manufacturing purposes and as required notice of six months; was not given the suit is not maintainable and as such liable to be dismissed.

The lease deed dated 28-9-1955 is marked as Annexure A-2.

The relevant clauses are, 3, 6, 9 and 12 which are as follows :-

"3. The lessee will not sell, mortgage or in any other manner transfer or part with the possession of the whole or any part of the demised premises, structure and buildings or his interest with the same, and the lessee will also not enter into any partnership with anybody regarding the business carried on or in any way in the demised premises. But the lessee will be entitled to sublet part of the structure and buildings with the consent of the lessor in writing and lessee will.be always responsible for all loss and damage if any.

6. The lessee has the option to continue the tenancy for another period of 3 years that is from 1-9-1956 to 31-8-1959 on the same terms and conditions. The lessee must exercise the option of renewal within 30-6-1956 in writing.

9. That it is hereby agreed by the parties that after the expiry of the period of three years the Lessor will have the option to revise the rent with the consent of the lessee.

It is also agreed by both the parties that the lease may, be terminated by the Lessor on giving six months' written notice and after 4 years at any time. Lessor will also be entitled to terminate the lease on giving six months' notice in writing ending with English Calendar month.

12. If the lessee fails and/or neglects to pay rent at the place and in the manner mentioned above for two months and/or breaks any of the terms and conditions herein before mentioned the lessor will be entitled to enter possession forthwith without notice and terminate the D lease."

It may be noted that the parties agreed that after the expiry of the period of three years the lessor will have the option to revise the ren_t

with the consent of the lessee. It was further agreed that the lease ,._ may be terminated by the lessee on giving six months' written notioe E and after four years at any time, the lessor will be entitled to terminate the lease on giving siJi: months notice in writing. If these clauses are applicable six months' notioe is necessary.

Clause 12 provides that if the lessee fails and/or neglects to pay rent at the place and in the manner mentioned above for two months F and/or breaks any of the terms and conditions mentioned, the lessor

will be entitled to enter possession forthwith without notice and termi- _ ~-· nate the lease. It is not disputed that the lessee neglected to pay rent for more than two months and as such if the clause is applicable the lease is liable to be forfeited and the lessor is entitled to enter possession forthwith without notice.

Mr. Govindan Nair learned counsel for the plaintiff/appellant submitted that the lease is governed by the provisions of the U.P. (Temporary) Control of Rent and Eviction Act and as the lease was entered into after the Act had come into foroe, the relationship between the parties is regulated by the provisions of the enactment and not by the terms of the contract. He submitted that the requirements of S. 3 of the Act had been fulfilled and the defendant cannot resist the suit for eviction. The U.P. (Temporary) Control of Rent and Eviction

PRADP.:m KUMAR v. B!NOD BEHARI (Kailasam, J.) 97

Act III 1947 came iuto force in 1948. Though the Act was subse quently repeakd by the \r.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, as the lease was of the year 1955, S.43 of Act III, 1972 saves proceedings initiated under U.P. (Temporary) Control of Rent and Eviction Act, 1947. S. 43(2)(r) provides that any suit for the eviction of a tenant instituted without or with the permission referred to in S.3 of the old Act or any proceeding arising out of such suit, pending immediately before the commencement of the Uttar Pradesh Civil Laws Amendment Act, 1972, may be conti

nued and concluded as if this Act had not been passed. It is, there fore, not in dispute that the proceedings in this matter are governed by the 1947 Act.

As the provisions of the U.P. (Temporary) Control of Rent and Eviction Act (III of 1947) are applicable, the terms of the lease deed becomes irrelevant. The only question that arises and which was seriously contended for on behalf of the respondent is that in addi tion to the safeguards provided to the tenant under the Act, he is also entitled to the benefits of S.114 of the Transfer of Property Act. S.3

of the U.P (Temporary) Control of Rent and Eviction Act III resc tricts the rights of the landlord to have the tenant evicted. But for the statutory provisions, the landlord would be entitled to evict the tenant according to the terms of the contract or the provisions of the Trans fer of Property Act, As the Rent Act has restricted the power of the landlord to evict the tenant except in accordance with the provisions -0f the Act, the terms of the contract and the provisions of the Trans

fer of Property Act to that extent are no longer applicable. Section 3(1) of the Rent Act runs as follows :

"Subject to any order passed under sub-section (3)

no suit shall, without the permission of the District Magis- F trate, be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the grounds that are mentioned in sub-clause (a) to (g) of sub-section(!)."

The relevant clause with which we are concerned is S. 3(l)(a) G which provides that a suit may be filed with the permission of the District Magistrate when the tenant is in arrears of rent for more than three months and has failed to pay the same to the landlord within one month of the service upon him of the notice of demand.

The notice Exhibit P.7 shows that the tenant was in arrears for more than three months. The notice dated 12-5-63 was served on the tenant B on 14-6-63 and no reply was sent by the tenant and it is not disputed that the tenant failed to pay the rent to the landlord within one month

of the service upon him of the notice of demand. Thus the condition required under S. 3(1) had been satisfied and permission by the District Magistrate was rightly granted and suit filed as contemplated under S. 3(1 ). ·

As the tenant could not rely either on the terms of lease or provisions of the Transfer of Property Act and insist on six __ months' notice, it was submitted on his behalf that as the notice was issued not only on the ground of default in payment of rent as contemplated in the Act but also under clause 12 .of the agreement which provides for forfeiture, he was entitled to the safeguards provided under S.114 of the Transfer of Property Act. On the facts it is clear that the notice is based on default of payment of rent for more than three months, and called upon the tenant to vacate the premises a month after the receipt of the notice if he failed to pay the rent as required under S.3. The notice is not based on the forfeiture of the lease unc'er clause 12. If clause 12 is valid on default of paymert of rent fer two months, the landlord is entitled to enter into possession forthwith without notice terminating the lease.

Although the question of termination of the lease by forfeiture does not arise on the facts of the case as the learned counsel strenuously contended that even then the tenant is entitled to the benefit of S.114 of the Transfer of Property A"t and that plea was accepted by the Trial Court, we would briefly deal with the point raised. During the trial when the arguments of the case were going on and the case was due to be closed, the learned ccunsel for the tenant prayed that the Court be pleased to confer benefit of S.114 of the Transfer of Property Act on the defendant. He tendered the full amount of rent alongwith full costs of the suit and interest as ordered by the Court. The learned counsel for the plaintiff _submitted that the defendant should not be allowed the benefit cf S.114. S. 114 of the Transfer of Property Act provides for relief against forfeiture en nonpayment of rent on the following terms :-

"Where a lease of immovable property has determined by forfeiture for non-payment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrears, together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for . making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred."

PRADESH KUMAR v. BINOD BEHARl (Kailasam, J.) 99

If the relief provided for under the fecticn is available, as the lessee had tendered the rent in arrears alongwith the intue&t therecn and his full costs in the suit, it was open to the Court to pass an order relieving the lessee against the forfeiture. The plea of the karmd counsel for

the tenant is that this provision should alrn le r"d into the U.P.

(Temporary) Control of Rent and Eviction Act. In a decision of seven Judges' Bench of this Court in V. Dhanapa/ Chettiar v. Yasodai

Ammal,(l-) the question as to whether in order to get a decree for evic- .tion, the landlord under the Rent Control Act should give notice as required under S.106 of the Transfer of Property Act was considered.

This Court held that determination of the lease in accordance with the transfer of Property Act is unnecessary and that if a case is made out for eviction under the Rent Act, it is itself sufficient and it is not obligatory to determine the lease by issue of notice as required in accordance with S. 106 of the Transfer of Property Act. The learned counsel for the tenant submitted that the d.ecision is confined only to the question as to whether notice under S.IC6 of the Transfer of Property Act is necessary and did not decide as to whether the provisions of the other Sections of Transfer of Property Act are applicable.

It is to be noted, however, that the question of determination of a lease by forfeiture under the Transfer of Property Act, was specifically dealt with by the Court and it was held that the claim of the tenant that he is entitled to a double protection(!) under the Rent Act and (2) under the Transfer of Property Act, is without any substance. While ru1ing thus the Court noted the following passage occuring in Manjujandra's case(2) and quoted with approval in Rattan Lal v. Vardesh Chander.(l)

"We are inclined to hold that the landlord in the present case cannot secure an order for eviction without first establishing that he had validly determined the lease under the Transfer of Property Act".

Disapproving this view, the Court framed a question "why this dual requirement?" and answered it as follows :-

"Even if tlie lease is determined by a forfeiture under the Transfer of Property Act, the tenant continues to be a tenant, that is to say, there is no forfeiture in the eye of law. The tenant becomes liable to be evicted and forfeiture comes into play only if he has incurred the liability to be evicted under the State Rent Act, not otherwise*** one

(I) [1980] I S.C.R. 334 at 350-51.

(2) [1967] I S.C.R. 475.

(3) (1976] 2 S.C.R. 906.

has to look to the provisions of law contained in the four corners of any State Rent Act to find out whether a tenant can be evicted or not. The theory of double protection or additi.onal protection, it seems to us, has been stret- ched too far and without a proper and due consideration of all its ramifications".

In the case before us, it is not in dispute that after the Rent Act came into force, the landlord cannot avail himself of clause 12 which provides for forfeiture, even if the tenant neglected to pay the rent for over two months. The landlord cannot enter into possession forth-

'\ ..

with without notice. The only remedy for him is to seek eviction _,,.

C under the provisions of the Rent Act. In such circumstances the tenant cannot rely on S.114 of Transfer of Property Act and claim that he should be given an opportunity to pay the arrears of rent, even though the requirements of S.3(1) had been fulfilled.

We are satisfied that once the requirements of Rent Act are D satisfied, the tenant cannot claim the double protection of invoking the provisions of the Transfer of Property Act or the terms of the contract.

In the result, we allow the appeal, set aside the order of the High Court and restore that of the lower appellate Court aud decree the suit for possession and ejectment of the defendant. The appellant is entitled to his costs in this appeaL

S.R.

Appeal allowed.

PRADESH KUMAR BAJPAI

BINOD BEHARI SARKAR

March 21, 1980

rs. MURTAZA FAZAL ALI

P. s. KAILASAM

A. D. KosHAL, JJ.

Transfer of Property Act

Section 114

Transfer of Property Act

section 3

Control of Rent and Eviction Act

section 114

section 114

Transfer of Property Act

section 114

Section 114

Once the requirements of Rent Act

Transfer of Property Act

section 114

Transfer of Property Act

Control of Rent and Eviction Act

clause 12

S. 114

section 3(1)

Section 3

Control of Rent and Eviction Act

Transfer of Property Act

section 3(1)

section 3

section 3

P. Govinda Nair

S. Ba'akrishnan

S. Q

Yogeshwar Prasad

S. K. Bagga

S. Bagga

Rani Clrabra

KAILASAM

High Court of Judicature at Allahabad

Pradesh Kumar Bajpai

Binod Behari Sarkar

section 114

Transfer of Property Act

section 114

Transfer of Property Act

Transfer of Property Act

Control of Rent and Eviction Act

Transfer of Property Act

Clause 12

Govindan Nair

S. 3

Control of Rent and Eviction Act, 1947

S. 43(2)(r)

Control of Rent and Eviction Act

Transfer of Property Act

Control of Rent and Eviction Act

Section 3(1)

S. 3(l)(a)

S. 3(1)

S. 3(1 )

Transfer of Property Act

clause 12

Transfer of Property Act

clause 12

clause 12

Transfer of Property Act

S. 114

Transfer of Property Act

Control of Rent and Eviction Act

Transfer of Property Act

transfer of Property Act

S. 106

Transfer of Property Act

Transfer of Property Act

Transfer of Property Act

Transfer of Property Act

Transfer of Property Act

Manjujandra

Transfer of Property Act

(1976] 2 S.C.R. 906

State Rent Act

clause 12

Transfer of Property Act

Transfer of Property Act


BAR COUNCIL OF DELHI AND ANR. ETC. v.

SURJEET SINGH AND ORS. ETC. ETC.

May 1, 1980

[N. L. UNTWALIA, V. D. Tul.ZAPURKAR AND A. P. SEN, JI.]

Bar Council of Delhi Election Rules 1968 Rule 3(i) validity of-JUJViiic-" tion of the High Court under Article 226-Alfernative remedy no bar-Rig'ltt to vote and right to stand for election-Doctrine of Promissory Estoppel allll

principle of approbation and reprobation.

In the year 1978, a proviso wa< added to "Rule 3(j) of the Bar Council of Delhi Flection Rules, 1968 with the approval of the Bar Couucil of India in accordance with the requirement of Sub-section (3) of section 15 of the Advocates Act, 1961. In accordance with that proviso a copy of the declaration form was sent on 14th June, 1978 to the Advocates whose names found place in the State roll of Advocates asking them to return the declaration form duly filled up and signed within the specified period. A publication to this effect was also made in some newspapers viz. Hindustan Times, Indian Express, Statesman etc.

The last extended date for the submission of the declaration" forms was 14th September, 1978 and the electoral 'roll was finally" published on the 16th September, 1978 excluding the names of about 2,000 Advocates who had failed ro submit such declaration forms. On the besis of the electoral roll so prepared, elections to tho Bar Council of Delhi was held on the 17th November, 1978.

The total number of advocates on the Advocates roll was 5,000 and odd out of which the names of about 3,000 and odd only were included in the electoral roll in accordance with the proviso to Rule 3 (j) of the Election Rules of the Bar Council of Delhi. The re!ults of the election were declared on the 19th November, 1978. The names of lhe

15 persons Who were declared elected were published in the Gazette on the 22ild November, 1978.

Thereafter the respondents in these appeals filed writ petitions challenging the whole election by attacking the validity of the proviso to Rule 3(j).

The Delhi High Court allowed the three writ petitions taking the view,

(i) so for as the qualifications to be possessed by and the conditions to be satisfied by an advocate before being brought on to the Electoral Roll was concerned only the Bar Council of. India has the competence to make the rules under section 3(4) and section 49(1)(a) of the Advocates Act, 1961 and

the State Bar Council has no power at. all to make o. rule on this subject;

(ii) the plea of estoppel against Surjeet Singh does not arise, (ill) nmt injustice has been done to the petitioners because more than 2000 advocates were wrongfully disqualified being brought on the Electoral Roll. Thi.! has materially affected the result of the elections; and (iv) Rule 3(j) of the Bar Council of Delhi Election Rules, 1968 is in excess of the roles making power

of Bar Council of Delhi.

H Dismissing the appeals by special leave the Court,

HEID : 1. The impugned proviso to Rule 3(j) of the Delhi B!ll Comu:IV bf Electiop.. Rules is ultra vires and invalid 3.nd the. electoml roll prepared by

t l '

I ~

\ . .

• J

) _,.. ..

BAR COUNCIL OF DELHI V. SURJEET SINGH 947

the Delhi Bar Council o~ the basis of the same resulting in the exclusion o! the names of about 2000 advocates from the said roll was not valid in lMV.

[958!}.E]

(b) The whole election was invalid on that account and it could be challenged as such in a writ petition. It was not a case of challenging the preparation of the electoral roll on the factual basis of wrong exclusion of a few namei. For the said purpose Rule 4 occurring in Chapter I of the Bar Cotmcil of India Rules could come into play. But here, because of the invalidity of the Rules itself, the preparation of the electoral roll was completely vitiated-a matter which cannot be put within the narrow limit of the said rule.

[958E-F]

However, it depends upon the nature and the intensity of the error committed in the preparation of the electoral. roll and its effect on the whole election for deciding the question as to whether a writ petition wonld be maintainable or not.

[862E-F]

Chief Commissioner, Aimer v. Radhey Shyam Dani,

[1957] S.C.R. 68; Parme1hwar Mahaseth and Ors. v. 1 State of Bihar and Ors., AIR 1958 Patna 149; Umakant Singh and Ors. v. Binda Choudhary and Ors., AIR 1965 Patna

459; D<v Prakash Balmukand v. Babu Ram Rewti Mal and Ors. AIR 1961 Punjab 429; Ramgulam Shri Baijnath Parsad v. The Collector, District Guna D and OFJ., AIR 1975 M.P. 145 and Bhoop Singh v. Bar Council of P1miab and Haryana through its Secretary and Ors., AIR 1976 M.P. 110; referred to.

(c) The illegal preparation of the electoral roll by the Delhi Bar Council on the basis of the invalid proviso to Rule 3 (j) goes to the very root of the matter and no election held on the basis of such an infirmity can be upheld.

There is no question of the result being materially affected in such a E case. [958F-GJ ·

(d) The contesting respondents could not be defeated in their writ petitions on the ground of estoppel or the principle that one cannot approbate and reprobate or that they were guilty of laches. In the first instance some of the contesting respondents were merely voters. Even Sri Surjeet Singh in his writ petition claimed to be both a candidate and a voter.

As a voter be could F challenge the election even assuming that as candidate after being unsuccessful he was estopped from doing so.

But, merely because he took part in the electiOn by standing as a candidate or by exercise of his right of fmnchise he cannot be estopped from challenging the whole election when the election was

aringly illegal and void on the basis of the obnoxious proviso. There

IS no question of approbation and reprobation in such a case.

A voter could come to the High Court eyen earlier before the election was held.

But mere- G ly beoouse he came to challenge the election after it was held it cannot be said that he was guilty of ]aches and must be. non-suited on that account. [958F-H, 959AB]

Kanglu Beula Kotwal and Anr. v. Chief Executive Officer, Janpad Sabha, Durga and Ors., AIR 1955 Nagpur 49; distinguished.

(e) The manner of resolving disputes as to the validity of election is pro vided for in Rule 34 of the Delhi Bar Council Election Rules. This is not an

SUPREME COURT REPORTS [1980] 3 S.C.ll,

A appropriate and adequate alte'l"'tive remedy to defeat the writ petitioner on that account.

Firstly, 'no clause of Rule 34 covers the challenging of the election on the ground that it has been done in this case. Secondly, the Election Tribuool will not be competent to declare any provision of the Blee- .-(. ti.on Rules ultra vires and invalid.

It not a case where the name of any voter was wrongly omitted from the electoral roll but it is a case Where the preparation of the whole electoral roll was null and void because of the in- • B validity of the impugned proviso. [959C-D, &Fl

Ramgulam Shri Baijnath Pd. v. The Collector, Dist. Guna and Ors., AIR 1975 M.P. 145 and Bhupendra Kumar Jain v. Y. S. Dharmadhikari and Ors., AIR .1976, M.P. llO; referred to.

Bhoop Singh v. Bar Council of Puniab and Haryana through its Secretary

'C and Ors., AlR 1977 Pb. & Haryana; quoted with approval. ~·

K. K. Srivastava etc. v. B1iupendra Kumar Jain and Ors., AIR 1977 S.C. 1703; distinguished.

2. If the alternative remedy fully covers the challenge to the election then that remedy and that remedy alone must be resorted to even though it in- D volves the challenge of the election of all the successful oandidates. But if the nature and the ground of the challenge of the whole election are such that the alternative remedy is no remedy in the eye of law to cover the challenge or, in any event, is not adequate and efficacious remedy, then the remedy of writ petition to challenge the \Vhole election is still available. In the present case the Election Tribunal would have found itself incompetent to declare the proviso to Rule 3(j) of the Delhi Bar Council Election Rules ultra yires and E that being so the alternative remedy provided in Rule 34(8) was no remedy at all.

[9641)..F]

Suryya Kumar Ray v. The Bar Council of India and Ors. Matter No. 304 of 1976 decided on December 17, 1976, ovemiled.

Barish Sambhu Prasad v. Bar Council of Gujarat, Special Civil Applica- F tion Nos. 542 and 551 of 1969; approved.

3. So long the existing rules framed by the Bar Council of India remained In vogne all persons whose names are ori .the State Roll are entitled proprio vl11.ore to be put on the electoral roll. Sections 24( e )( 1) and 26A of the Advocates Act, 1961 read with Rules l, 2 and 3 of Chapter I of Part ill of the Bar Council of India Rules male this position clear.

[954A-B, [).HJ

4. On a plain reading of sub-sections 4 of section 3 of the Advocate& Act, 1961, it is manifest that under the Act the qualifications and conditions entitling an advocate to vote at an election or for being chosen as a member of the State Bar CQuncil has to be prescribed by the Bar Council of India. Tlte State Bar Council bas no such power. The power of the State Bar Council is merely to prepare and revise from time to time the electoral roll subject to the Rules made by the Bar Council of India concerning the qualifications and conditions aforesaid. This interpretation of Section 3 ( 4) of the Act finds ample support from the very special and specific provision contained in section . 49(l)(a) providing for the general power of the Bar Council of India. [956F-H]

.i ~

BftR COUNCIL OF DELHI V. SURJEBT SINGH 949

S. It is true that the power to make rules conferred by section IS is both A. for the Bar O>uncil of India as also for the Bar O>uncil of a State. But no provision Of section IS can override die specific provision IJlllde in section 3(4) and section 49(1)(a) of the Act. Sub-section (I) of section 15 says- "A Bar Council may make rules to carry out !he purpooes of !his Chapter"

which means Chapter ll including section 3. But the power to prescn'be qualillcatioDS and conditions entitling an advocate to vote at an election being that of the Bar O>uncil of India section IS(!) cannot be interpreted to confer power B. on the State Bar O>uncil to make rules regarding the qualifications and conditiono aforesaid. [957B-DJ

The State Bar O>ancil can franw rules for the preparation and revision of electoral rolls under section 15(2)(a). That would be in conformity witll the latter part of sub-section ( 4) of section 3 elso. But in the garb of making a rule for the preparation and revision of die electoral rolls it cannot prescribe disqualifications, qualiftoations or conditions subject to which an advocate whose name occurs in the. State roll can find place in the electoral roll resulting in his deprivation of his right to vote at the election. In the instant case nndef the impugned proviso failure on the part of an advocate to submit the required declaration within the specified time entitles 1he State Bar Council to exclude his name from the electorel roll. Such a thing was squarely oovered by the exclusive power conferred on the Bar O>uncil of India under sections 3(4) and 49(l)(a) of the Advocates Act. The Stste Bar Cotmcil hail no such power. [957F-H]

6. The approval of the Bar Council of India can make the rule made by the State Bar Council valid and effective only if the rule made is within the

competence of the State Bar Council otherwise not. Mere approval by the Bar E.

Council of India to a rule ultra vir"" the State Bar O>uncil cannot make the rule valid. Nor has it the effect of a rule made by the Bar Council of India.

Making a rule by the Bar Council of India and giving approval to a rnle made by the State Bar Council are two distinct and different things.

One cannot take the place of the other. [958B-DJ

ClvIL APPELLATE JURISDICTION : Civil Appeals NOil, 2224, 2225 F. and 2226 of 1979 .

.,,., Appeals by Special Leave from the Judgment and Order dated 22-5-1979 of the Delhi High Court in Civil Writ NOil. 111, 551 and 284 of 1979.

• V.M. Tarkunde, A. K. Sen, G. L. Sanghi, B. P. Maheshwari and G: S. K. Bhattacharya for the Appellants in C.A.s. 2224, 2225, 2226179.

P. R. Mridul, Vimal Shanker, K. R. R. Pillai, P. N. Wadhera and Aruneshwar Gupta for Respondent No. 1 in CA 2224/79.

D. D. Chawla, Vineet Kumar and R. S. Sihota for Respondent Nos. 1-3 in CA 2225/79.

B. D. Sharma and Aloka Bhattacharya for Respondent No. 1 in

CA 2226/79.

SUPREME COURT REPORTS [1980] 3 s.c.R.

A The Judgment of the Court was delivered by

UNTWALIA J .-These th!ee appeals by the Bar Council of Delhi and the Bar Council of India are from the common judgment of the Delhi High Court .allowing three writ petitions filed by the first respondent in each appeal and others seeking the setting aside of the election of the Bar Conncil of Delhi held in the year 1978. As the points involved in them are identica( they are all being disposed of by this common judgment. We shall proceed to state the facts from the records of Chi! Appeal No. 2224 of 1979 in which respondent no. 1 is Shri Surjeet Singh Bhangul. He was a voter as also a candidate for the election wherein he lost In the writ petition giving rise to Civil Appeal 2225 of 1979 there were three petitioners-two were candidates but Shri D. R. Thakur was an advocate whose name was not included in the electoral roll although his name occurs in the State roll of Advocates.

Shri A S. Randhawa, respondent no. 1 in Civil Appeal 2226 of 1979 was a person whose name occurred both in the State roll of Advocates as also in the electoral roll. But he was not a candidate.

Surjeet Singh was an advocate who was a member of the Delhi Bar Conncil before the impugned election. A proviso was added to Rnle 3.(j) of the Bar Council of Delhi Election Rules, 1968 in the year

1978. In accordance with that proviso a copy of the declaration form was sent on 14th Jnne, 1978 to the advocates whose names fonnd place in the State roll o1' Advocates asking them to return the declaration form dnly filled up and signed within the specified Fod. A publication to this effect was also made in some newspapers viz. Hindustan Times, Indian Express, Statesman etc. The last exnded date for th• submission of the declaration forms was 14th September 1978 and the electoral roll was finally published on the 16th Septelnber 197 8 excluding the names df about 2,000 advocates who had faijed to submit such declaration forms.

On the basis of the electoral toll so prepared, according to the programme of election, the electi?Jl of members to the Bar Council of Delhi was held on the 17th Nofomber 1978. The total number of adrocates on the Advocates roll was ji,000 and odd oot of which the names of about 3,000 and odd only were included in the el.ectoral roll in accordance with the proviso to Rulel 3 (j) of the Election Rules of the Bar Council of Delhi. The results of the election were declared on the 19th November, 1978. The names lof the 15 persons who were declared elected were published in the Gazette on the 22nd November, 1978. Thereafter on the 24th of Januaijy 1979 the writ petition was filed in the High Court challenging the whole election by attacking the validity of the proviso to Rule 3 (j).

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BAR COUNCIL OF DELHI v. SURJEET SINGH ( Untwalia, J.) 951

Apart from the successful candidates the writ petitions were mainly A .and vigorously contested by the two Bar Councils, namely, the Bar Council of Delhi and the Bar Council of India. The latter seems to have taken keen interest in the matter of contesting the writ petitions because the impugned proviso to Rule 3 (j) was introduced in the Election Rules with the approval of the Bar Council of India in accordance with the requirement of sub-s. ( 3) of Section 15 of the Advocates Act,

.B ·

1961. The High Court has taken the view;-

( 1) "Lastly, the irresistible conclusion, therefore, is that so far as the qualifications to be possessed by and the conditions to be satisfied by an advocate before being brought on the Electoral Roll are concerned only C the Bar Council of India has the competence to make the rules under Section 3( 4) and Section 49(1)(a) and the State Bar Council has no power at all to make a rule on this subject."

( 2) The plea of estoppel raised against Snrjeet Singh was rejected.

(3) "Rank injustice has been done to the petitioner because more than 2,000 advocates were wrongfully disqualified from being brought on tho Electoral Roll.

Tim has materially affected the regnlt of the olection." ( 4) "For the reasons stated above, we hold that Rule E 3(j) of the Bar Council of Delhi Election Rules, 1%8, is in excess of the ruleS making power of the Bar Council of Delhi. Since the action taken by the Bar Council of Delhi to disqnalify more than 2,000 advocates because of their non-<:<>mpliance with the proviso to Rule 3 (j) has resulted in great prejudice to the F petitioner who can justly claim that the bringing on the Electoral Roll of more than 2000 advocates wonld have made a considerable difference to his own election and to the election as a whole, we are constrained to set aside the election to the Bar Council of Delhi held on 17th November 1978." G

M/s V. M. Tarkunde, A. K. Sen and G. L. Sanghi appearing for >the appellMm, broadly speaking, made the following submissions :-

( 1) That the impugned proviso of Delhi Bar Council Election Rufo; was valid as it was within the competence

of the Delhi Bar Council to add 1uch a proviso in the H Rules under its tale making power with the approval of the Bar Council of India. In any event the ap-

SUPREME COURT REPORTS [198Q] 3 S.C.ll~

proval had the effect of making it a rule made by the Bar Council of India.

(2) The electoral roll prepared by the Bar Council of Delhi could not be challenged in a writ petition. The preparation of the electoral roll is final and any wrong exclusion or inclusion of name from or in the electoral roll is beyond the pale of challenge in a writ petition.

(3) That it was not shown that the result of the election has been materially affected due to the non-inclusion of the names of about 2,000 advocates from the eloo-- toral roll. There was neither any pleading to this. effect nor was any material placed before the High.

Court in support of this assertion.

( 4) That Surjeet Singh and others like him who had taken part in the election and were defeated were estopped from challenging the election as they could not approbate and reprobate at the same time. They were guilty of !aches also as they could have challenged in the High Court the validity of the impugned proviso before the election was actually held.

(5) That there is a specific remedy provided in the Delhi Bar Council Election Rules for challenging any election to the Bar Council and hence in view of the adequate remedy being available the election could not be challenged by a writ petition.

M/s. P. R. Mridul and F. S. Nariman appearing for the contesting respondents combated all the submissions made on behalf of the appelc

F !ants and supported the judgment of the High Court.

We find no substance in any of the points urged on behalf of the i appellants. We are, by and ]arge, in agreement with the decision of t the High Court on each and every point. We proceed to briefly state our reasons for the same.

G Section 4 of the Advocates Act provides for persons who may be admitted as advocates on a State roll. Clause ( e) of sub-s. ( l ) says that the person must fulfil such other conditions as may be specified in y the rules made by the State Bar Council under Chapter Ill of the Act 'I which concerns the admission and enrolment of advocates.

Under the Rules so framed a person desirous of being enrolled as an advocate H has to apply in the prescribed form furnishing all the details Qf his qualifications to be enrolled as an advocate. In item 3 of the application the applicant declares-"I. declare that upon admission I pro-

BAR COUNCIL OF DELHI v. SURJEET SINGH ( Untwalia, J.) 95 3

pose to practise within the State of Delhi." At the end of the appli- A cation form certain undertakings are given by the applicant. Clause ).._ ( c) of the undertaking runs thus :-

• J

17 ~

"I hereby declare and undertake that- . .... ................................. .

(iv) I intend to practise Qrdinarily and regularly within the jurisdiction of the Bar Council of Delhi.

( v) I shall inform the Bar Council of a11y change of address of my residence or place of practice for the proper maintenance of the roll and voters' list."

According to the case of the Delhi Bar Council many advocates after having been enrolled and put on the State roll of advocates of Delhi break the said undertaking. They do not ordinarily and regularly practise within the jurisdiction of the Bar Council of Delhi nor do they inform any change of address fQI' the proper maintenance of the roll and the voters' list. It is a pertinent matter no doubt. It 1is the duty of the Bar Council to obtain information as to whether any person put on the roll of State advocates ceased ordinarily and regularly to practise within the jurisdiction of the Bar Council of Delhi, if so, to take steps for removal of his name from the State rolls.

That would automatically, as we shall presently show, debar the person concerne<l to be put on the electoral roll.

But no provision in the Advocates Act or any rule was brought to our notice enabling the Delhi Bar Council to remove the name of a pel'l!on from th@ State roll if he has broken the undertaking aforesaid.

Section 26A, of the Advocates Act merely says-"A State Bar Council may remove from the State roll the name of any advocate who is dead or from whom a request has been received to that effect." In para 2 of the affidavit of Shri D. Gupta, Advocate it is tated :-

"It is the experience of this Council that most of the advocates who are elevated to the Bench or those who join subordinate judiciary or family or other business or employment, seldom care to notify this Council to get their licence revoked or suspended, nor do the advocates shifting their place of practice from Delhi to elsewhere, care to notify this Council in that respect, although the undertakings at internal page 8 of the Enrolment form of this Council oblii:es them to do so."

It may be so but the lacunae in this regard have got to be removed by amending the Advocates Act or by properly framing the rules in thati

2-610SCI/80

SUPREME COURT REPORTS

[1980] 3 S, C, R,

respect.

We are definitely of the opinion that so long the existing rules framed by the Bar Council of India remained in vogue all persons whOie names are on the State roll are entitled proprio vigore to be put on the electoral roll Rule 1 occurring in Chapter I of Part III of the Bar Council of India Rules says :-

"1. Every advocate whose name .is on the Electoral Roll of the State Council shall be entitled to vote at an .election."

Rule 2 provides :-

"2, Subject to the provisions of Rule 3, the name of every advocate entered in ihe State Roll shall be entered in the electoral roll of the State Council."

&ceptions to Rule 2 are to be found embodied, in Rule 3 which runs thus:-

"3. The name of an advocate appearing in the State Roll shall not be entered in the Electoral Roll, if on information obtained by the State Council :

(a) his name has any time been removed;

(b) he has been suspended from practice, provided that this disqualification shall operate only for a period of five years from the date of the expiry of the period of suspension;

( c) he is an undischarged insolvent;

( d) he has been found guilty of an election offence in regard to an election to the State Council by an Election Tribunal, provided however that such . disqualification shall not operate beyond the election next following after such finding has been made;

( e) he is convicted by a competent court for un offence involving moral turpitude, provided that this disqualification shall cease to have effect after a period of two years has elapsed since his release;

(f) he is in full-time service or is in such part-time business or other vocation not permitted in the case cf. practising advocates by the rules either of the State Cmmcil concerned or of the Council;

(g) he has intimated voluntary suspension of practice and has not .given intimation of resumption of practice."

None of the clauses in Rule 3 covers a clause of the kind found in the proviso to Rule 3 (j) of the Delhi Bar Council Election Rules.

.,_

17 •

BAR COUNCIL OF DELIII v. SURJEET SINGH (Untwalia, J.) 95 5

ule 3 of Delhi Bar Council Election Rules is headed 'Interpretation".

A Clause (j) of the said Rules says :-

""Electoral Roll" means and includes the roll containing the names of the advocates prepared in accordance with the rules of the Bar Council of India in Part III, Chapter I."

The impugned proviso added to clause (j) in the year 1978 runs thus:-

"Provided that the Elector; il Roll shall not include the name of such advocate who fails to file in the office of the Bar Council, on or before such date (not being earlier than 30 days of the date of notification) as may he notified by the Bar Council in such mannoc , as may be considered proper by it from time to time, or withiri 45 days of the putting up of the preliminary Electoral Roll under Rule 4 ( 1 ) of Chapter I of Part II! of the Bar Council, of India Rules, a declaration containing the name, address and number of the advocate on the State Roll and to the effect that :-

(a) He is an advocate ordinarily practisinlll in the Union -

Territory of Delhi and that his principal place of

practice is within Union Territory of Delhi;

(b) He is not an undischarged insolvent;

( c) l{e has never been convicted by any court for an offence E involving moral turpitude;

A period of two years has elapsed since his release after being. convicted of an offence involving moral turpitude; F

(In case of conviction particulars of such conviction should be given)

(d) He is not in full-time service or business or in any such part-time business or other vocation as is not permitted in the case of practising adrocates by the rules of the Bar Council; and

( e) He has not been suspended from practice; and on the failure to file the declaration or C1ll filing of incomplete or incorrect declaration in any respect, it shall be presumed that the name of such advocate is not to be entered on the Electoral Roll in accordance with Rule 3 of Chapter I of Part ID of the Bar Council of India Rules."

[1980] 3 S.C.R.

A In these appeals we are not concerned with the proprfoty or legality of asking such a declaration from a person belonging to the, noble profession.

We shall proceed on the assumption that such an information could be asked for from a person concerned whose name is on the State roll of Advocates.

On the furnishing of such information the name of the advocate concerned could not included in the B electoral roll only if on the basis of that information one or more clauses of Rule 3 of the Bar Council of India Rules to be found iii Part III, Chapter I could come into play, not otherwise. In these appeals w, e are not concerned with any such case.

The contrversy here centres round the fact that under the impugned !Proviso mere failure to file the required declaration disqualified the advocate cone cerned from being put on the electoral roll thus depriving him of his right to vote or to stand as a candidate.

The crux of the matter in these appeals is as to whether such a proviso was valid or ultra vires.

In order to determine the point at issue we shall now read some relevant provisions of the Advocates Act. Section 3 provides for the constitution of the State Bar Council, sub-s. ( 4) of which says :-

-----.~

"( 4) An advocate shall be disqualified from voting at an election under sub-section (2) or for being chosen as, and for being, a member of a State Bar Council, unless he possesses such qualifications or satisfies such conditions as may be prescribed in this behalf by the Bar Council of fadia, and subject to any such rules that may be made, an electoral roll shall be prepared and revised from time to time by each State Bar Coll!lcil."

On a plain reading of this sub-section it is manifest that under the Act the qualifications and conditions entitling an advocate ta vote at an election or for being chosen as a member of the, State Bar Council ha~ to be prescribed by the Bar Council af India.

The State Bar Council has no such power. The power of the State Bar Council is merely to prepare. and revise from time to time the electoral roll subject to the rules made by the Bar Council of India concerning the qualifications and conditions aforesaid.

This interpretation of Section 3 ( 4) of the Act finds ample support from the very special and specific J""Ovision contained in section 49(1)(a) providing for the general power of the Bar Council of India in these terms:-

H "49. (l) The Bar Council of India may make rules for discharging its functions under this Act, and, in particular, such rules may prescribe-

:r ..

BAR COUNCIL OF DELHI v. SURJEET SINGH ( Untwalia, !.) 95 7

(a) the conditions subject to which an advocate may be entitled to vote at an election to the State Bar Council in.eluding the qualifications or disqualifications of voters, and the manner in which an electoral roll of voters may be prepared and revised by a State Bar Council;"

Great reliance was placed on behalf of the appellants on the concurrent power of the State Bar Council and the. Bar Council of India engrafted in section 15 of the Advocates Act. It is true that the power to make rules conferred by section 15 is both for the Bar Council of India as

also for the Bar Council of a State. But no provision of section 15 c can override the specific provision made in section 3 ( 4) and section 49(1)(a) of the Act.

Sub-section (1) of section 15 says-"A Bar Council may make rules to carry out the purposes of this Chapter"

which means Chapter II including section 3.

But the power to prescribe qualifications and conditions entitling an advocate to vote at an election being that of the Bar Council of India section 15 ( 1) cannot D be interpreted to confer power on the State Bar Council to make rules regarding ths qualifications and conditions aforesaid.

The relevant words of sub-section 2(a) of section 15 are the following:-

"In particular, and without prejudice to the generality of the foregoing power, such rules may pmvide for:-

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . the preparation and revision of electoral rolls and the manner in which the results of election shall be published."

The State Bar Council can frame rules for the preparation and revi sion of electoral rolls under section 15(2)(a). That would be in conformity with' the latter part of sub-section ( 4) of section 3 also.

But in the garb of making a rule for the preparation and revision of

the electoral rolls it cannot prescribe disqualifications, qualifications or conditions subject to which an advocate whose name occurs in the G State roll can find place in the electoral roll resulting in his depriva- . tion of bis right to vote at the election.

In the instan~ case under the impugned proviso failure on the part of an advocate ta submit the required declaration within the specified time entitles the State Bar Council to exclude his name from the electoral roll. Such a thing was squarely covered by the exclusive power conferred on the Bar H Council of India under sections 3 ( 4) and 49 (1) (a) qf the Advocates Act.

The State Bar Council had no such power.

958 SUPREME COUllT REPORTS

[1980] 3 S.C.R,

A Sub-s. (3) of section 15 says :-

"No rules made under this section by a State Bar Council shall have effecj unless they have been approved by the Bar Council of India."

Introduction of the impugned proviso in Rule 3 (j) of the Delhi Bar Council Election Rules was approved by Resolution No. 18 of 1978 passed by the Bar Council of India.

Any rule made by the State Bar Council cannot have effe_ct unless it is approved by the Bar Council of India.

But the approval of the Bar Council of India can make the rule made by the S!ate Bar Council valid and effective only if the rule made is within the competence of the State Bar Council, ptherwi8e C not.

Mere approval by the Bar Council of India to a rulo ultra vires the State Bar Council cannot make the rulef vaiid.

Nor has it the effect of a rule made by the Bar Council of India.

Making a rule by the Bar Council of India and giving approval to a rule made by the State Bar Council are two distinct and different things.

One cannot

'take the place of the other.

We, therefore, hold that the impugned proviso to Rule 3 (j) of the Delhi Bar Council Election Rules is ultra vires and invalid and the electoral roll prepare.cl by the Delhi Bar Council on: the basis of the same resulting in the exclusion of the names of about 2,000 advocates from the said roll was not valid in law.

We are further of the opinion that the whole election was. invalid on that account and it could be challenged as such in a writ petition. It was1 not a case of challenging the preparation of the electoral roll Oil the factual basis of wrong exclusion of a few names.

For the said purpose Rule 4 occurring in Chapter I of the Bar Council of India Rules could come into play.

But here, because of the invalidity of the Rules itself, the preparation of the electoral roll was completely vitiated-a matter which cannot be put within the narrow limit of the said rule.

The illegal preparation of the electoral roU by the Delhi Bar Council on the basis of the invalid proviso to Rule 3 (j) goes to the very root of the matter and no election held on the basis of such an infirmity can be qpheld.

There is no question a( the result being materially affected in such a case.

The contesting respondents could not be defeated in their writ petitions on. the ground of estoppel or the principle that one cannot approbate and reprobate or that they were guilty of !aches. In the first inst312cc some of the contesting respondeois were merely voters.

Even Shri Surjeet Singh in his writ petition claimed to be bo'th a can- -didate and a VQter.

A$ a voter he could challenge the election even

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BAR COUNCIL .OF DELHI v. SURJEET SINGH (Untwalia, !.) 959

assuming that as a candidate after being unsuccessful he was estopped A from doing so.

But to be precise, we are of the opinion that merely beL<1use he took part in the election by standing as a candidate or by exercise of his right of franchise he cannot be estopped from challenging the whole election when the election was glaringly illegal and void on the basis of the obnoxious proviso.

There ii; no question of approbation and reprobation at the same time in such a case. A voter B could come to the !figh Court e.ven earlier before the election was held.

But merely, because he came to challenge the election after it was held it cannot be said that he was guilty of any !aches and must be non-suited only on that accow1t.

There is no substance in the last submissiqn; made on behalf of the c appellants.

The manner of resolving disputes as to the validity of election is provided for in Rule 34 of the Delhi Bar Council Election Rules.

This is not an appropriate and adequate alternative remedy to defeat the writ petitioner on that account.

Firstly, no Flause of Rule 34 coven. the challenging of the election on the; ground it has been done in this case.

Secondly, the Election Tribunal will not be D competent to declare any provision o!- the Election Rules ultra vius and invalid. Our attention was specifically drawn to clause (8) of Rule 34 which says :-

"No petition shall lie on the ground tl1at any nomination paper was wrongly rejected or the name of any voter wus wrongly included in or omitted from the electoral roll or any error or irregularity which is not of a substantial character."

As we have said above, it is not .a case where the name of any voter ' was wrongly omitted from the electoral roll but it is a case where the preparation of the whole electoral roll was null and void because of the invalidity of the impugned proviso.

We now proceed to refer to some relevant decisions of the High Courts and of this Court cited at the Bar in support of some of the points discussed above.

Mudholkar J., delivering the leading and the majority judgment of G a Full Bench of the Nagpur High Court in Kanglu Baula Kotwal & another v. Chief Executive Officer. Janpad Sabha, Durg and others('), rejected the plea of estoppel to challenge the election at page 58, para 25 in these terms :-

"As regards the petitioners who were also candidates at H the elections but were defeated, the learned counsel said that

(ll A. I. R. 1955 Nagpur 49.

SUPREME COURT REPO~TS [l 98QJ 3 S.C.R.

those who took their chances at the elections and failed should not now be allowed to challenge elections of their opponents on the ground that the electoral rolls were defective. The plea is in substance one of estoppel. There can be no question of any estoppel, because it cannot be said that the position of. the other side has in any way altered by reason of sqmething done or not done by the petitioners."

We are of the view that neither the principle of estoppel nor the principle of approbation and reprobation can be pressed into services1 in this case.

In Chief Commissioner, Ajmer v. Radhey Shyam Dani(') the respondent before the Supreme Court had filed a writ petition ln the Court of Chief Commissioner of Ajmer challenging the validity of the notification directing the holding of the election of the Ajmer Municipnlity and the electoral roll.

This challenge was made before the election was held.

Since the electoral roll prepared was found to be invalid as it was prepared in accordance with some invalid rules, a Constitution Bench of this Court upheld the decision of the Chief Commissioner.

At page 75, Bhagwati J., speaking for the Court said:-

"It is of the essence of these elections that proper electoral rolls should be. lll'aintained and in order that a proper electoral roll should be maintained it is necessary that after the preparation of the electoral roll opportunity should be given to the parties concerned to scrutinize whether the persons enrolled as electors possessed the requisite qualifications.

Opportunity should also be given for the revision of the electroral roll and for the adjudication of cl-aims to be enrolled therein and entertaining objections to such enrolment.

Unless this is done, the entire obligation cast upon the authorities holding the elections is not discharged and the elections held on s11ch imperfect electoral rolls would acquire no validity and would be liable to be challenged at the instance of the parties concerned. It was in our opiaion, therefore, necessary for the Chief Commissioner to frame rules in this behlllf, and in so far as the rules which were thus framed omitted these provisions they were defective."

:Finally at pages 76 and 77 it was said :-

"If Rules 7 and 9 above referred to were intended to focm a complete code for the finalisation of the electonil roll

(I) [1957J S. C. R. 68.

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BAR COUNCIL OF DELHI v. SURJEET SINGH (Untwalia, J.) 661

of the Municipality they did not serve the intended purpose and were either inconsistent with the provisions of s. 30, sub--s. (2), of the Regulation or were defective in so far as they failed to provide the proper procedure for taking of the steps hereinabove indicated for finalising the electoral roll of the Municipality. If that was the true position the electoral roll of the Municipality which has been authenticated and published by the Chief Commissioner on August 8, 1955 was certainly not an electoral roll prepared in accordance with law on the basis of which the elections and poll to the Ajmer Municipal Committee could be held either on September 9, 1955, or at -any time thereafter."

In the instant case the electoral roll was prepared on the basis of a

rule which has been found to be void and ultra vires.

That being so, een though the contesting respondents came to challenge the election after it was held, they could do so because of the gravity of the infraction of the law in the preparation of the electoral roll.

Dani's case (supra) was followed by the Patna High Court in two decisions.

In Parmeshwar Mahaseth and others v. State of Bihar and others(!) and Umakant Singh and others v.

Binda Choudhary and others('). After quoting a passage at page 153 from Dani's case Kanhaiya Singh J., said in Parmeshwar Mahaseth's case at the same page in paragraph 14 thus :-

"It was urged by the learned Government Advocate that the election cannot be disputed except by an election petition, us laid down in R. 62 of the Election Rules.

He submitted that petitioner 9 had already filed an election petition after the presentation of this writ application.

This contention is not valid.

What is challenged here is not the election of a particular candidate, but the validity of the entire election; because of the violation of the essential provisions of the Election Rules and the Act. I think, R. 62 provides for a case where a person challenges the election of a particular candidate. I would overrule the objection."

In Umakant's case the Court quoted the passage from Dani's case from page 461 and finally expressed the view in paragraph 12 at page 462 in these terms : -

"Mr. Shankar Kumar appearing for respondents 6 and

I;'

7 submitted that the e:ection ought to have beeh challenged II

(I) A. I. R. 1958 Patna 149. f2) A- I. R. 1965 Patna 459.

by following the machinery provided in rule 148 of the rules, and this Court, in exercise of its power under Article. 226 of the Constitution, should not interfere with the elec tion when a special machinery was provided for challenging it.

I am unable to accept this argument. It is the well settled view of the Court that if the entire election is challenged as having been held under statutes or 'statutory rules which are invalid or by committing illegalities which make the entire election void, it can be quashed by grant of a writ in the nature of certiorari." '

A Full Bench of the Punjab High Court in Dev Prakash Balmukand v. Babu Ram Rewti Mal and others(') had occassion to consider this question and in that connection at page 434 Dulat J., said in paragraph 15 :-

"Everybaly, of course, agrees that, if the very foundation of the election, namely, the electoral roll is illegal, no election on its basis can proceed or be allowed to stand, but that does not mean that a'ny kind of defect in the roll, however technical in its nature, will suffice to reach such a conclusion."

It would thus be seen that it depends upon the nature and the intensity of the error committed in the preparation of the electoral roll and its effect on the whole election for deciding the question as to whether a writ petition would be maintainable or not. In Ramgulam Shri Baiinath Prasad v. The Collector, District Guna af1d others(') Oza J., delivering the judgment of the Division Bench stated in para 17 at page 152 thus :-

"It was also contended that the petition was not filed immediately, but has been filed after the elections were over. As regards the question of estoppel we had already considered it and found that the petition under Art. 226 cannot be disposed on the question of estoppel.

As regards delay, it is sufficient to state that it could not be said that the petition was unduly delayed.

Apart from it, it is also clear that a'n election held on the basis of rolls which have not been prepared in accordance with law, the petition cannot be dismissed merely on the ground of delay."

(ll A. I. R. 1961, Punjab 429.

(2) A. I. R. 1975 M. P. 145.

\ ..,

" ·:'l''

BAR COUNCIL OF DELlil v. SURJBBT SINGH (Untwalia, J.) 963

The Madhya Pradesh High Court has taken a similar view in the A case of Bhupendra Kumar Jain v. Y. S. Dharmadhikari and others(') )- wherein it was held that the entire election could be challenged on the basis of certain types of illegalities committed in holding it.

" )

"'f/ 'f ' '

Shri Bhoop Singh, an Adocate and a member of the Bar Association at Chandigarh was a candidate to the Bar Council of Punjab & Haryana.

After being unsuccessful he challenged the election by filing a writ. petition in the High Court.

The full Bench of the Punjab & Haryana High Court in Bhoop Singh v. Bar Council of Punjab and Haryana through its Secretary and others(') disl)lissed

the writ petition on the particular facts of that case.

Yet the view expressed at page 43 in para 9 was :-

"I am extremely doubtful whether the nature of the relief which the petitioner claims here, namely the setting aside of the whole of the election and the ordering of a repoll could be claimed by way of an election petition under rule 34(1). No provision in the said rule was brought to our notice which in express terms empowers or warrants the setting aside of the whole of the election (in contradistinction to the election of individual candidates) or to direct a repoll.

In any case it is well settled that the existence of an alternative remedy is not an absolute legal bar to the issuance of a writ".

Reliance was placed for the appellants upon the decision of this Court in K.

Shrivastava etc. v., Bhupendra Kumar Jain and others(") that because of rule 34(8) of the Delhi Bar Council Election Rules the writ petitions ought to have been held to be 'not maintainable.

It would be noticed from the facts of that case that an election petition had already been filed.

About four months later a writ petition was also filed to challenge the election.

At page 1704, column 1 Krishna Iyer' J., speaking for the Court said :-

"One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the Court should keep its hands off.

This is more particularly so where the dispute relates to an election.

Still more so where there is a statutorily prescribed remedy which almost reads in mandatory terms".

(l) A. I. R. 1976 Madhya Pradesh 110.

(2) A. I. R. 1977 Punjab & Hacyana 40.

(3) A. I. R. 1977 S. C. 1703.

'~~,-- '

A But he added :-

"While we need not in this case go to the extent of stating that if there are exceptional or extraordinary circumstances the Court should still refuse to entertain a writ petition."

Finally the view expressed in K. K. Shrivastava's cas. is

"There is no foundation whatever for thinking that where the challenge is to an "entire election" then the writ jurisdiction springs into action.

On the other hand the circumstances of this c; ase convince us that exercise of the power under Art. 226 may be described as mis-exercise."

We may add that the view expressed by some of the High Courts in t}1e cases referred to above that 111erely because the whole election has been challenged by a writ petition, the petition would be maintainable in spite of there being an alternative remedy being available, so widely put, may not be quite correct and especially after the recent

amndment of Art. 226 of the Constitution. If the alternative remedy fully covers the challenge to the election then that remedy and that remedy alone must be resorted to even though it involves the challenge of the election of all the successful candidates.

But if the nature and the ground of the challenge of the whole election are such that the alternative remedy is no remedy in the eye of law to cover the challenge or, in any event, is not adequate and efficacious remedy then the remedy of writ petition to challenge the whole election is still available.

In the present case we have pointed out above that the Election Tribunal would have found itself incompetent to declare the proviso to Rule 3 (j) of the Delhi Bar Council Electicm Rules 11/tra vires and that being so the alternative remedy provided in Rule 34(8) was no remedy at all.

Appellants heavily relied upon an unreported decision , of the Calcutta High Court in Suryya Kumar Ray v. The Bar Council of India & Ors.('). The challenge to the election to the Bar Council of West Bengal was almost on grounds which are similar to those in the present case.

The Calcutta High Court upheld the validity of the Rule and the election held on the basis of electoral roll prepared in accordance with that Rule and dissented from the. view of the Gujarat High Court in Barish Sambhu Prasad v. Bar Council of Gujarat(').

(I) Matter No. 304 of 1976 decided on December 17, 1976. (Cal. H. C.)

(2) Special Civil Application Nos. 542 and 551 of 1969. (Gaj H. C.)

MR COUNCIL OF DELHI v. SURJEET SINGH (U-ntwalia, J.) 965

The learned Judge said with reference to the decision of the Gujarat A High Court thus :-

"It al'l1"ars to me that this decision will not be of much assistance to the petitioner in the instant case i'n as much as the electoral rules which are before me have duly been approved by the Bar Council of India itself. Such approval confers upon these rules the authority and sanction of the Bar Council of India and may be deemed to be the rules framed by the Bar Council of India."

The enunciation of the law as made above, in our opinion, is not correct.

We have held to the contrary.

For the reasons stated above, we dismiss all the appeals but make no order as to costs in any of them.

S. R.

Appeals dismissed.

BAR COUNCIL OF DELHI AND ANR. ETC

SURJEET SINGH AND ORS. ETC. ETC

May 1, 1980

May 1, 1980

[N. L. UNTWALIA, V. D. Tul.

N. L. UNTWALIA

A. P. SEN

Bar Council of Delhi Election Rules 1968

Article 226

Bar Council of Delhi Election Rules 1968

Bar Council of Delhi Election Rules 1968

Bar Council of Delhi Flection Rules, 1968

Couucil of India

section 15

Advocates Act, 1961

14th June, 1978

Hindustan Times

Indian Express

14th September, 1978

Bar Council of Delhi

17th November, 1978

19th November, 1978

22ild November, 1978

Delhi High Court

Bar Council of. India

section 3(4)

section 49(1)(a)

Advocates Act, 1961

State Bar Council

Surjeet Singh

Bar Council of Delhi Election Rules, 1968

Delhi Bar Council

SUPREME COURT REPORTS [1980] 3 S.C.ll

Election Tribuool

December 17, 1976

Sections 24( e )( 1) and 26A

Advocates Act, 1961

sections 4

section 3

Bar Council of India

Section 3

section 3(4)

section 49(1)(a)

section 15

section 3

State Bar O>ancil

section 15(2)(a)

section 3

Bar O>uncil of India

sections 3(4) and 49(l)(a)

Advocates Act

Stste Bar Cotmcil

The Stste Bar Cotmcil hail no such power. [

Bar E.

Council of India

V.M. Tarkunde

A. K. Sen

G. L. Sanghi

B. P. Maheshwari

S. K. Bhattacharya

s. 2224, 2225, 2226179

P. R. Mridul

Vimal Shanker

K. R. R. Pillai

P. N. Wadhera

Aruneshwar Gupta

D. D. Chawla

Vineet Kumar

R. S. Sihota

B. D. Sharma

Aloka Bhattacharya

UNTWALIA

Surjeet Singh Bhangul

D. R. Thakur

A S. Randhawa

Delhi Bar Conncil

14th September 1978

16th Septelnber 197 8

17th Nofomber 1978

22nd November, 1978

24th of Januaijy 1979

Section 15

Advocates Act

Section 3( 4)

Section 49(1)(a)

Snrjeet Singh

V. M. Tarkunde

A. K. Sen

P. R. Mridul

F. S. Nariman

Section 4

Advocates Act

Delhi

no provision in the Advocates Act

Section 26A

Advocates Act

D. Gupta

Advocates Act

Delhi Bar Council Election Rules

Electoral Roll under Rule

Advocates Act

Section 3

Bar Council af India

Section 3

section 49(1)(a)

section 15

Advocates Act

section 15

Bar Council of a State

section 15

section 3

section 49(1)(a)

section 15

section 3

section 15

section 2(a)

section 15

section 15(2)(a)

section 3

Bar H Council of India

sections 3

Advocates Act

section 15

S!ate Bar Council

Chapter I of the Bar Council of India Rules

Mudholkar

Nagpur High Court

Supreme Court

Bhagwati

s. 30

August 8, 1955

Ajmer Municipal Committee

September 9, 1955

Dani

Patna High Court

Kanhaiya Singh

Parmeshwar Mahaseth

Umakant

Shankar Kumar

Punjab High Court

Dulat

Everybaly

Art. 226

Madhya Pradesh High Court

Bhoop Singh

Bar Council of Punjab & Haryana

Punjab & Haryana High Court

Krishna Iyer

K. K. Shrivastava

Art. 226

Art. 226

Calcutta High Court

Bar Council of West Bengal

Gujarat High Court

Gujarat A High Court


WORKMEN OF SUDDER WORKSHOP OF JOREHAUT

TEA CO. LTD.

ITS MANAGEMENT AND VICE-VERSA

May 1, 1980

(V. R. KRISHNA IYER AND 0. CHINNAPPA RllDDY, JJ.]

New Pica-Article 136 of "the Cons1itution-Supre1ne l'ourt cannot accept .,,. new plea not taken earlier.

lndustri/ll Diputes Act, Sections 25F and 25G, scope of-Back wages paynJent of.

The Management Tea Co. Ltd. appellant in C. A. 1538/71 retrenched on.

November 5, 1966, 23 workmen, 16 of whom were paid retrenchment compensation allegedly in term. of section 25F of the Industrial Disputes Act based on wages obtaining prior to Wage Board Award, which came into force on

1-4~66 retroactively and in the order of 'last come, first go', while the services of other seven were terminated, although on payment of retrenchment com~ pensation, allegedly in breach of Section 25G of the Act, i.e. out of turn. The dispute that was raised was decided by the Tribunal which upheld the validly of the retrenchment of the 16, but set aside the termination of the other seven.

The High Court agreed with the Tribunal's Award and hence the appeals both by the workmen and the management after obtaining special leave.

Dismissing both the appeals, the Court

HELD : 1. The plea that the amount paid by way of retrenchment compensation envisaged in Section 25F of the Industrial Disputes Act, not having been computed as per the revised pay scales as per the Wage Boe.rd Award, fell short of what was legally due and hence there was non-compliance is not tenable because before the Tribunal this contention was neither pleaded nor proved. There was \no hint of it in the Award. Jn the High Court this new plea based on the facts was not permitted. Further the Wage Boards' .A ward was subsequent ro the retrenchment although retroactively applied and the. \vorkmen had accepted the retrenchnient compensation on the wages prevalent at the time of the retrenchment. In the absence of any basis for this new plea Supreme Court cannor reopen cm ancient matter of 1966. But the 16 Work men, being admittedly eligible for the Wage Board scale, would be paid the difference for the period between 1-4-66 to 5-11-66.

[969 A-BJ

2. Se<:tion 25G of the Industrial Disputes Act postulates that ordinarily the 'last come, first g~ will be the methodology of retrenchment. Of course, it is not an inflexible rule and extra-ordinary situations may justify variations.

There must be valid reason for this decision, and, obviously, the burden is on the Management to substantiate the special ground for depsrture from the rule.

Surely, valid and justifiable reasons are for the management to make our, and if made out, s. 25G will be vindicated and not violated, varying the ordinary rule of 'last come first go.' There is none made out here, nor even a1leged, except the only plea that t'he retrenchment was done in compliance

I , ..

I 't T

""'

with s. 25G grade-wise. Absence of mala fides by itself is no absolution from A the rule in s.25G. Affirmatively, some valid and justifiable grounds must be proved by the Management to be exonerated from the 'last come first gc>' prin ciple. The aboye rule can be applied category wise. That is to say tbose who fell in the same category shall suffer retrenchment only in accordance with !be principle of last come first go. [969 E, H, 970 A, B, 0-FJ

Ml s. Om Oil & Oil Seeds Exchange Ltd., Delhi v. Their Workmen, [1966] Suppl. S.C.R. 74, followed.

3. Grading for purposes of scales of pay and like considerations will no! create new categorisation. ..ft is a confusion or unwarranted circumvention to contend that within the seme category if grades for scales of pay, based on length of service etc., are evolved, that process amounts to creation of seporate categories. In the instant case, the senioriiy List is the same which is a tell ing circumstance to show that they fell in the same category.

[971 C-E]

4. Supreme eoUrt cannot sympathise with a party who gambles in litigation to put off the evil day and when that day arrives prays to be saved from his own gamble. The Award had given convincing reasons for reinstatement and even reduced the back wages to half. Still, the workmen were dragged to the High Court and, worse, when worsted there, were driven from Assam to Delhi to defend their pittance. The logistics of litigation for indipt work.men is a burden the management tried to use by a covert blackmail throogh the judicial process. Misplaced sympathy is a mirage justice. [971 G-H, 972 A-Bl

CML APPELLATE JURISDICTION : Civil Appeals Nos. 1303 of 1972 and 1538 of 1971.

Appeals by Special Leave from the Judgment and Orders dated 13-4-1971 Of the Assam and Nagaland High Court in Civil Rule No. 368/68 and 174/68.

M. N. Phadke and S. N. Choudhary for the appellant in CA.

No. 1538 and Respondent in CA No. 1303172.

P. R. Mridul and K. P. Gupta for Respondent No. 1 in CA 1538 and Appellant in CA No. 1303/72.

The Judgment of the Court was delivered by

KRISHNA IYER, J. These two appeals, turning on the validity of the retrenchment of 23 workmen way back in 1966, arp amenable to common dispo1al. Mr. Phadke, appearing for the Management, argued straight to the point; so did Shri Mridul, with the result that we could get the hang of the case without much wrestling with time or getting paper-logged. Since, in substance, we are inclined to leave undisturbed the Award of the Industrial Tribunal, affirmed, as it were, by the High Court, both these appeals will be given short shrift with brief reasons.

The facts, to the extent necessary to appreciate the isses canvas-. sect, are brief.

The Management of a tea plantation by name Jorehaut Tea Co., Ltd., retrenched 23 workmen, 16 of. whom were paid retrenchment compensation allegedly in terms of s.25F of the Industrial Disputes Act (for short, the Act) and in the order of 'last come, first go', while the services of the other seven were terminated, although on payment of retrenchment compensatioo, allegedly in breach of s. 25G of the Act, i.e. out of tum. The dispute that was raised was decided b'y the

Tribunal which upheld the validity of the retrenchment of the 16 but set aside the termination of the other 7. Consequently it directed their re-instatement with some back wages.

The Award granted the following relief: ·

In respect of the workmen, viz., Sri Bhogeswar Saikia Sri Nandeswar Bora, Sri Gunai Bora, Sri Premodhar Sarma,

Sri Alimuddin Ahmed, Sri Deven Sarma and Shri Harlal Biswas whose retrenchment has been found to be not justified they are entitled to reinstatement with continuity of service.

These workmen have not come forward to say that they remained unemployed from the date of their retrenchment.

In the circumstances of the case, I think they may be given wages at half the rate from the date of retrenchment till the date of publication of the award in the Gazette.

We may first dispose of the workers' appeal. In all, 23 persons were retrenched.

In respect of 16 the rule of 'last come, first go' was applied .. Thus homage was paid to s.25G of the Act. But then, the workmen in their appeal, contended before us that s. 25F bad been breached and, therefore, the termination was bad in law.

The Management's case is that, as a fact, all or most of them had been reinstated when fresh vacancies had arisen, although neither party is able to assert with certainty this case of reinstatement. That apart, if there be non-<:ompliance with s.25F, the Jaw is plain that the retrenchment is bad. However, when probed further as to bow s.25F had been violated, Shri Mridul argued that the amount paid by way of retrenchment compensation envisaged in s.25F fell short of what was legally due and hence there was non-<:ompliance.

Under more searching interrogation, Shri Mridul stated that the compensation bad been computed on the basis of wages previously paid and in derogation of the Wage Board Award which had been implemented by the Management with effect from 1-4-1966.

The retrenchment was on November 5, 1966, i.e. months after April 1, 1966. Therefore, the revised payscales as per the Wage Board Award should have been adopted in calculating the retrenchment cmpensation. This spinal flaw rendered

...

I r

... . .

.Y

~·

WORKMEN SUDDl!ll. WORKSHOP v. MANAGEMENT (Krishna Iyer, I.) 9 6 9

- -:"~- the tender of campensation insufficient and, therefore, the retrenchment itself was invalid. Maybe, there is apparent force in this contention. But Shri Phadke countered it by saying that it was not open to the workmen to spring a surprise on the Management especially when the question was one of fact. He urged that before the Tribunal no

plea based on the Wage Board -!\ward was made and it was quite pllssi'llfe that the Management would have adequately met the conten-

 B tion if such a plea had been raised. The fact is that before the Tnl>unal the contention pressed before us was neither pleaded nor proved.

There is no hint of it in the Award. In the High Court this new plea based on the facts was not permitted. Had there been some foundation laid at least in the written statement of the workmen, we might have been inclined to expli>re the tenability of the plea, especially because there is no dispute about the. Wage Board Award and the fact that it had been given effect to from 1-4-1966 and the further fact that in the retrenchmlll!t notice the wages were not calculated according to the Wage Board's Award. It must be remembered, however, that the Wage Board's Award was subsequent to the retrenchment although retroactively applied and the workmen had accepted the retrenchment compensation on the wages prevalent at the time of the retrenchment.

In the absence of any basis for this new plea we are unable to reopen an ancient matter of 1966 and, agreeing with the High Court; dismiss tht appeal. But the 16 workmen, being eligible admittedly for the Wage Board scale, will be paid the difference for the period between 1-4-1966 to 5-11-1966. ·

Now, we will take up the merits of the Management's appeal which relates to the retrenchment of seven workmen. Admittedly, the rule in s.25G of the Act, which postulates that ordinarily the 'last come, first gd Mll be the methQdology of retrenchment, has not been complied with provided we treat all the workmen in the category as .one group.

It makes for better appreciation of the point if we read s. 25G at this stage : Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to . a particular category of workmen in that es!ablishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons tt'.1 be recorded the employer retrenches any other workman.

The key-note thought of the provision, even on ii bare reading, Is evident.. The rule is that the employer shall retrench the wotkman who came last, first, poptJlarly known a8 'last come first go'. Of

3-610SCI/80

course it is not an inflexible rule and extra-ordinary situations may justify variations.

For instance, a junior recruit who has a special qualification needed by the employer may be retained even though another who is one up is retrenched. There must be a valid reason for tbis deviation, and obviously,, the burden 1s on the Management to substantiate the special ground for departure from the ru!ei.

Shri Phadke brought to oui notice the decision in Ml s Om Oil & Oilseeds J; xchange Ltd., Delhi v. Their Worf<n?en(') to make out that it was not a universal principle which could not . be departed from by the Management that the last should go first.

The Management had a discretion provided it acted bona fide, and on good grounds.

Shah, J. in that very ruling, while agreeing that a breach of the rule could not be assumed as prompted by ma1a fides or induced bY unfair labour practice merely because of a departure or deviation, further observed that the Tribunal had to determine in each case whether the Management had acted fairly and not. with ulterior motive.

The crucial consideration next mentioned by the learned Judge is . ' ' that the Management's decision to depart from the nde must be for valid and justifiable reasons, in which case "the senior employee may be retrenched before his junior in employment.'' Surely, valid and justifiable rasons are for the Management to make out, and if made out, s. 25G will be vindicated and not violated. Indeed, that very decision stresses the necessity for valid and good ground for varying the ordinary rule of 'last come first go'. There is none made out here, nor even alleged, ext the only plea that the retrenchment was done in compliance with s. 25G grade-wise. Absence of mala fides by itself is no absolution from' the rule in s. 2SG.

Affirmatively, some valid a!Jd justifiable grounds must, be proved by the Management to be exonerated from the 'last come first go' prim; iple.

It must be remembered that the above provision which we have quoted insists on the rule being applied category-wise. That is to say, those who fall in the same category shall suffer retrenchment only in accoroance with the principle of last come first go.

The short pmnt raised is tha~ the seven workmen are not in the same category. The finding of the Tribunal, concurred in by the High Court is that they fell in the same category. We quote the award :

"It will be seen that when there is no trade test or anything to mark efficiency, there is no basis for placing the workmen in different grade~ and when all the workmen o!I' the same category are to do the same work inasmuch as by the management's own evidence there is no gradewisel allo-

(1) (1966) Supp. SCR. 74.

I J ·-r

cation of duty within the same category. Although in the e.vJdence the Management wanted to justify their departure from the principle of 'last come first go' there is nothing to show that such a reason was recorded for deviating from the principle. In the circumstances of the case it cannot be said that the management's selection of persons to be retrenched leaving the juniormost in. some category was justified and the reason now adduced for deviating from the principle cannot be accepted in the absence of the reason being not recorded at. the time of retrenchment. Further

11 will be also noticed that although there is classification of workmen into grades (?) within the cat.egory, there is nothing to distinguish one workman of one grade from another workman of another Grade inasmuch as there is no allocation of duties amongst the workmen of different Grades in the category."

The seniority list is the same, which is a telling circumstance to show that they fell in the same category. Grading for purposes of scales of pay and like considerations will not create new categorisation. It

JS a confusion or unwarranted circumvention to contend that within the same category if grades for scales of pay, based on length of service etc., are evolved, that process amounts to creation of separate categories. This fallacy has been rightly negatived by a detai!lld discussion in the Award. The High Court has a voided the pitfall and we decline to accept the submission.

The result is that the Award must hold good in regard to the illegally retrenched seven workmen.

What remains to be considered is the last submision of Shri Phadke that the engineering establishment wherein these seven workmen are to be reinstated is no longer in existence.

Further, he• pleads that on account of long lapse of time on account of the pendency of the appeal in this Court the compensation payable by way of full wages may amount to a huge sum disproportiom1te to the deviance from the law.

He, therefore, pleads for moulding the relief Jes~ harshly .

We cannot sympathise with a party who gambles in litigation to put off the evil day and when that day' arrives prays to be saved from his own gamble. The Award had given convincing reasons for reinstatement and even reduced the back wages to half.

Still, the1 work-

G •

men were dragged to the High Court and, worse, when worsted there, were driven from Assam to Delhi to defend their pittance. the B logistics of litigation for indigent workmen is a burden the Manaoement trie.d to nse by a covert blackmail through the judicial proce"s.~.

Misplaced sympathy is mirage justice.

We cannot agree.

Even so, we take note of the inordinate delay due to long pendency which is part of the pathology of processual justice in the Supreme Court.

So we direct that half the back wages between the \]ate of retrenchment and the publication of the Award shall be paid, as directed in the Award itself.

For the post-Award period, full wages )Vill be paid until the High Court's judgment on 13-4-71 and thereafter 75% of the wages will be paid until 30-4-1980.

Counsel contends that the Workshop is not in existence now and reinstatement is physically impossible.

Sri Mridul, for the workmen, states that a just solution by the court in the given (circumstances 1s e acceptable.

We direct that, in lieu of reinstatement, one year's wages calculated on the scale sanctioned by the Wage Board recommendations for each such workman be paid. All the sums, if no~ paid before 15-5-80, shall carry 12% interest.

And upto 15-5-80 they shall carry 9% interest in supersesion of the interim order dated 5-5-72. Rough

" ~

'1"

\' ' ~

....

and ready justice, for want of full information, is riot satisfactory but ,.

D cannot be helped.

We dismiss the workmen's apF.1. No costs.

We dismiss the Management's appeal, subject to the above directions, with costli quantified at Rs. 5,000/-.

s. R.

Appeals dismissed

ITS MANAGEMENT AND VICE-VERSA

V. R. KRISHNA IYER

Article 136

Sections 25F and 25G

section 25F

Industrial Disputes Act

1-4~66 retroactively

Section 25G

Section 25F

Industrial Disputes Act

Supreme Court

Industrial Disputes Act

s. 25G

s. 25G

Supreme eoUrt

Assam

Delhi

M. N. Phadke

S. N. Choudhary

P. R. Mridul

K. P. Gupta

KRISHNA IYER

Phadke

Mridul

Jorehaut Tea Co., Ltd.

Industrial Disputes Act

s. 25G

Bhogeswar Saikia

Nandeswar Bora

Gunai Bora

Premodhar Sarma

Alimuddin Ahmed

Deven Sarma

Harlal Biswas

s. 25F

November 5, 1966

s. 25G

India

Shah

s. 25G

s. 25G

s. 2S