• D

A.C. JOSE

• v.

SIVAN PILLAI & QRS.

. March 5, 1984

(S. MuRTAZA FAZAL Au, A. VARAOARAJAN

ANO RA

0NOANATH MISRA, JJ.).

_Constitution of lndia-1950, Articles 324; 327 and 329. . . -

~ The Reprer'entation of te PeOple Act 1951, Section 59. - - ' ' . '

 .• The Conduct of Election Rules 1961; Rule 49 Elections-Voting-Carting . oj ballots _by use. of :electronic' machine-Whether valid Cznd legal.

Wods and P_hrases: uBal/ot'-;-Meaning of.

. .__ The first reswn4eot was elected to the State. Legislative A; embly.

Voting in the ConStituency was by the conventional method provided in the Conduct of Election Rules-1961, the votes. cast manually; 3.nd also by the mechaiiical proCess, viz., the use of 'electroniC' machines.

The appellant Challenged the _election of the first respondent: The tTial court upheld the validity of.voting by machines and held. that the first resP_Ondent was duly., elected. ,

In appeal. to -Jhis Coo; t, it was contended on behalf'of the appellal that voting by, mechanical process was not permissible either uD.der the Re-Pre.: sentation 'of the People Act 1951, or under the Conduct of Election Rules

1961.

Allowing the appea.1, . ..

HELD : 1. The order of the Election Coinmission dirCciing casting of ballots by machines in some of the polling stations, was without jurisdiCtion . and could n.othave been resorted to~ [900] _

2. When the Representation of the People Act 1951 and the Conduct of Election Rules 1961, prescribed a particular method of voting the Commllsion could not innovate a new method arid c?ntend that use of the meChani ca_l pi:ocess_wa~ not Covered.by the existing law and, therefore, did fnbt -coma.· ·.in conflict with the law in the field. The Act and the Rules complit.ely excluded the mechanial process' which,' if resorted to, wOUiddefeat in a large.· measure the mandatory requirements of the RUies. [86G, SSF]

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A.C. Josi! v. s. PiLLAi

3. (a) When there is no Parliamentary legislation orrule made under • the said legislation, the Commission is free to pas-s any orders in respect of the

CondUct of elections. [86 HJ · • . . . . . '

(b) Where there is an ACt and tber"e are express Rules made thereunder, it is not open to the Commission to Over-ride the Act or the Rules and pass Orders in direct disObedience to the mandate _contained in the Act or the Rule! • . The PowerS of the Commission are•meant to supplement rather than supPiant the Jaw (bOth statut.e 'and Rules) in the matter Of superintendence, directon_ and

Sontrol as provided by Article 324. [87 A-Bl '

(c)-- Where the Act or the Rules are silent, the Commission his no doubt plenary powers under Article 324 tO give any direction in respect of. the conduct o~ elect.ion. [87C] . . .

(d) Where a partiCular directi9n by the Commission is ubmitted to th~ governriient for approval, as rtquired by the RuleS, it .is .not open to the Commissio.n to go ahead with implemenation of it at its own sweet will even if the approval Or the Government snot given. [870] ..

4. It is a w"ell-settled rule of interpretation of 'statutes that words;

Pii.raes o! Sentences of a statute should o"rdinarily be underStood in their D 03.tural, ordinary, pOpuiar and grammatiCal sense unless such a construction - leads to absurdity. [880] · ·

5. Legisiatures must be deemedto be aware of the modern tendencies . in various den1ocratic countrie.s .. of the wo'rld where the mechanical system has -

bCen intioduced and if despite the plain nleaning of the word •ballot' they did not choose to extend the definition given as far back as- 1950, 'it may be safely, presumed

0that Parliainent intended to use the word •bJllot 9 in its popular rather_ than a technical sense. [89G] ·

6. The word •ballof _h3s been derived from the wotd 'ballota' which .existed at atime when there was no question. of any system of voting-by-·.'

machine. Even in .1951 when the Act was passed or the-Rules were made~ the- .sYstem of voting by machine was not in vogue in this country .. In these circ~- . P-i stances the word 'ballot" in its strict sense would not include voting by the use of voting rOachines; [89FJ . . . . . .

Sadiq Ali & Anr. v. Election Commission of India & Ors • ."[1972] 2 S.C.R; 318; Mohinder Singh Gill & Anr. v. The Cheif_Election Commissioner,· New_ JH/hl & Ors,, [1978] 2- S.C.R. 272 and N.P.' Ponnuswami v. Returning Officer, Namakka/ Constituency & Ors., [1952] S.C.R. 218 i referred to. ·

 G:

. cMr. APPELLATE JURISDICTION : Civil Appal No. 3839 of 1982. - -. . . From the Judgment and• Order dated the 12th October, 1982 qf the Kerala High Court in Election Petition No. I of 1982.

' . '. . ' .

K.K. Venugopal; G. Vishwanathalyefand E.M.S. Aliam for the Appellant. . , , ..

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Stil'REME cbuil.r REPORTS ' [1984] 3 s.c.R.. ..

A Ram Jethamalani, M.M. AbdulKhader, Dileep Pillai and ' . M.A. Firoz for Respondent No. I.

• K.G. Bhagat, A_dd/, Sol. General and Miss A. Subhashini for

Union.

S.S. Ray, A.K. Sen and Miss A. Subhashini for the. Election Commissioner.

Ram Jethamalani and Miss Rani Jethmalani for the Intervener.

The Judgment of the Court was delivered by

f:_'

FAZAL ALI,.J.

This election appeal has been filed by. the appellant, who was a candidate for election to "No. 70 Parnr Assembly Constituency" .in Kerala but was not elected. Six candi- . dates contested .the said election which was'held on May 19, 1982, out of whom the first respondent '(Sivan Pillai), who was a candidate of the Communist Party of India, and the appellant were the •wo principal contestants. The result of the election was announced on May Z0,1982 in which the first respondent was declared elected having secured 30450 votes as against 30327 vJJtes secured by the appellant. Thus, the first respondent secured 123 more votes than the appellant. Of the 30450 votes,' 11268 were cast manually, according to-the conventional method provided in the Conduct of Election Rules, 1961 (for short, to be referred to as the 'Rules') made under the Representation of th~ People Act, 1951 (hereinafter to be referred to as the 'Act'), and 19182 v, otes were cast by means of electronic machines (for short, to be referred to as 'voting machines'.). This was done in pursuance of the directi<>n issued by the Election Commission of India (for facility, to be referred to as the 'Commission') by virtue of a notification published in the Kerala Gazatte on 13.5.82. The said notification was purported to have been made under Art. 324 of the Constitution of India, and has been extracted on pages 3 to 5 of the judgment of th_e High Court ad it is not necessary for us to -repeat the same having regard to the point of law that we have to decide in the instant case.

It may be mentioned that prior to issuing the notification the commission had sought the sanction of the Government of India which was however refused. As mentioned abov~, the votes . . ,

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A.C. JOSE v. s. PILLAI (Fazal Ali, J.) 77

by the mechanical process were cast in. 50 out of the 85 polling . stations.

The trial Court upheld the validity of voting by machine and held that the resp.ondent was duly elected to the Assembly seat.

Hence, this appeal by the appellant.

Art. 324 of the Constitution gives full powers to the Commis sion in matters of Superintendence, direction and control of the preparation of electoral rolls and also for the conduct of elections to the Parliament and State Legislatures. It was argued that the Com-mission being a creatur~ of the Constitution itself, its plenary powers flowing directly from Art. 324 will prevail over any Act passed by the Parliament or Rules made thereunder, l!)Order to buttress this argument, it was contended that the manner of voting was a matter coming within the ambit of Arts. 324 and 327 which empowered the Parliament to make laws in respect of mters relating to or in connection. with . the elections to the Parliament or the State Legislatures and would be deemed to be subsidiary to the power contained in Art. 324 and if there was any conflict between a law enacted by the Parliament and . the powers given to the Cpmmission regarding regulating the conduct of elections to Parliament that law must yield to_ Art. .324, otherwise the very object of Art. 324 would be de(eated. Notice was given by this Court both to the Union of India as also the Commission though in terms of s. 82 of the Act they are not necessary parties and wete not before the High Court.

This is a very attractive argument but on a closer scrutiny and deeper deliberation on this aspect of the matter, it is not possible to read into Art. 324 .such a wicte and uncana!ised power, which is entrusted to' the Commission as Mr. Jethmalani would have us belie.; e. Part XV of the Constitution contains Arts. 324 to 328 which relate to the manner in whfrh elections are to be held, the rights of persons who are entitled to vote, preparation of electoral rolls, delimitati.on of constituencies, etc., but this is merely the storehouse of the powers and the actual exercise of thes.e powers is left to Parliament under Arts. 325 to 329. In other wrds, Art. 324 has to be read in harmony with, and not in isolat, ion of Arts. 326 to 329. Art. 324 may be extracted thus :

"324. Superintendenc.e, direction and control of

letions t1,> b~ veste~ in ~!l Elctioq Commissio!!·

SUPREME COURT REPORTS

[1984] 3 S.C.R.

( J) The superintendence, direction and control of the preparation.of the electoral rolls for, and the conduct of, all elections to Parliament and to tlie Legislature of every State and. of elections to the offices of President and Vice- President .held under t4is Constitution -shall be vested in a Commission (referred to in this Constitution as the Election Col!lmission).

(2) The Election Commission shall consist of the Chief Election Commissioner and such number of othr Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisio.ns of any law made in that behalf by Parliament, be made by the President.

(3) When any other Election Commissioner is s~ ilppointed the Chief Election Commissioner shall act a-s the Chairman of the Election Commission.

(4) 'Before each general election to the House of the People and to the 'Legislative Assembly of each St.ate, and before the first general electionand thereafter before each biennial election to the Legislative Council of each Stale having such Council, the President may also appoit after consultation with the Election Commission su.ch Regional Commissioners as he may consider necessary to assist the Election Commission in the p, erformance of the functions conferred on the Commission by clause (I).

(5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure o"f office of the Election Commissioners and the Regional Commissioners shall be such as ti"\e President may by rule deterine:

Provided that the Chief Election Commissioner shall not beremoved from his office except in li!ce manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commis sioner shall not be varied to his disadvantage after his appointment.

Provided further that any other Election Commissioner or a Rc¥io!)l <;; ommisioner shall nt be' removed from

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A.C. JOSE v. s. PILLAi (Faza/ Ali, J,)

office except on the recommendation of the Chief Election Commissioner.

' (6) .The President, or the Governor of a State, shall when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the disvharge of the functions conferred on the Election Commission by clause(!)." •

While interpret(ng a constitutional provision we must remember the memorable words of Chief Justice Marshall :

"We must never forget that it is the Constitution which we are expounding."

Another golden rule laid down by this Court on the 'interpretation of statutes is that we should: so interpret the language of a Statute .as to suppres~ the mischief and advance the o'bject. It is true that Art. 324 does authorise the Commission to exercise powers of superintendence, direction and control of preparation of electoral rolls and the conduct of elections to Parliament and

State legislatures but then the Article has to be read harmoniously with the Articles that foll<;>w and the powers that are given to the Legislatures under entry No' 72 in the Ubion List and entry No. 37 of the State List of the Seventh Schedule to the Constitution. The Commission in the garb of passing orders for regulating the conduct of elections cannot take upon itself a purely legislative activity which has been reserved under the scheme of the Constitution only to. Parliament and -the State legislatures. By no

tandards can it be said that the Commission is a third Chamber in the legislative process within the scheme of the Constitution.

Merely being a creature of the Constitution will not give it plenary and absolut~ power to legislate as it likes without reference to the Jaw enacted by the legislatures.

It was further argued that this power was necessary in order . to make the Commission an independent body and in this connection our attention was drawn to speech of Dr. Ampedkar in the

Constituent Assembly when the, qustion 'of making the Election Commission an independent body was being debated, At page 905, Constituent Assembly Debates. (Vol.8), Dr. Ambegkar ob~r ved thusi

• •

(1984] 3 S.C.R,

"But the House affirmed without any kind of dissent that in the interests. of" purity and freedom of elections to the legislative bodies, it was of the utmost importance that they should .)le freed from any kind of interference from the executive of the day. In pursuance of the decision of the.

House, the Drafting Committee removed this question from the category of Fundamental Rights and put it in a separate part containing Articles. 289, 290. and so on, Therefore, so far. as the fundament\l question is .concerned that the ele'ction machinery should be outside the control of the execu- ; tive Government, there has been no dispute. What article 289 does is to carry out that part of the decision of the Constituent Assembly. It transfers the superintendence, direction and control of the preparatfon of the electoral roUs and of all elections to Parliament and the Legislatures of $tates to a body outside the executive to be. called the Electfon Commission."

These observations merely show tha< the intention of the founding fathers. of our Constitution was fo make the Commission a separate and independent. body so that the election machinery may .be outside the control of the executive Government. What Dr. Ambedkar, or for that matter the founding fathers, intended was that the superinteodel!ce, direction and control of the preparation of electoral rolls and of all elections to Parliament and State .• Legislatures should be left to the Election Commission. This object has been fully carried out by the provisions in Arts. 324 to 329.

Neither the observations . of. Dr. Ambedkat nor the provisions of

F.. the Constitution could ever have intended to make the Commission an apex .. body in respect of matters relating to elections, conferring on it legislative powers ignoring the Parliament altogether.

Mr. Asoke Sen, appearing for the Commission, speaking in the same strain asMr. Jethmalani, contended that Art. 324 was a Code in itself and was couched in a very plain and simple language which adoiits of no ambiguity and, if so construed, itgives fulJ powers and authority to the Commission to give any direction in connection. with the conduct' of elections. It was further submitted that if this interpretation is not given then Arts. 325 to 329 would amount to defeating the very object which wa; wught to be achieved by Art: 324. Supporting argument was built up by

Mr. Seo by !w11vily relying upon the opeoins 'words in An. 327 to

. r, ..

• • A.O. JOSE VI s. PILLAI (Fazal Ali, J.) • 81 • the effect: "subject to the provisions of this Constitution" and

absence of any such rider in Art. 324. For the reasons which we will give hereafter, it is not possible for us to accept the somewhat far-fetched argument of the learned counsel.

Reliance was placed on a decision of this Court in Sadiq Ali and Anr. v. Election Commission of India and Ors. 1 where the Court observed tlius:

"Art. 324 of the Constitution provides inter alia. that the superintendence, direction and control of the preparation of electotal rolls for a'.nd the conduct of all elections to

Parliament and Legislative Assemblies of the States and aJ\ C • elections to the offices of P.resident and Vice'President held under the Constitution shall be vested in the Commission ...

Without prejudice to the generality of the foregoing power, sub-section (2) enumerates some of the matters for which provisioh may be made in the rules. Sub-section (3) requires that the ruies framed shoufd be laid betore each

ouse of Parliament. Conduct of Election Rules, 1961 were thereafter framed by the Central Government. Rule 5 of those Rules requires the Commission to specify the symbols that may be chosen by candidates at elections in Parliamentary hnd Assembly elections abd the restrictions to which that choice shall be subject. Rule 10 makes provision for allotment of symbols to the contesting candidates by the Returning Officer subject to general or special directions issued by the Commission," ·

The first part of the above observations merely repeats the , language of Art. 324 but the second part clearly shows that the power under Art. 324 is: conditioned by the Rules made by the Central Government for the conduct of all lections. These observations, therefore, do not appear to us to be-of any assistance to the stand taken by the appellant. • .

Reliance was also placed on the following observations in the said case:·

"Question then arises as to what is the binding nature of the decision given by the Commission under paragraph 15 In this respect, it has to he borne in mind that the Commission only decides the question as to whether any of the

'1(1) [1972] 2 SCR 318

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SUJ>REMB COURT RBJ>ORTS [1984] 3 s.c.R,

rival sections or groups of a recqgnised political pitrty, each of whom claims to be that patty, is that party. The claim maddn this respect is only for the purpose of symbols in connection with the elections to the Parliament and State 'Legislatures and the decision of the Commission pertains to this limited matter."

(Emphasis ours)

These observations also . do not advance the matter. any further because it was clearly held that the claim made in respect of symbols pertained only to the limited matter which was being considered by the Commission.

The following observations of tliis Court, in that case completely clinch the issue,. against the appellant: •

"It would follow from what .has been discussed earlier in this judgment that the Symbols Order makes detailed provisions for the reservation, choice and alloiment of symbols and the recognition of poiitical parties in connection therewith. That the Commission should specify symbois for elections in Parliamentary and assembly constituencies . has also been made obligatory by rule 5 of Conduct of Election R, ules."

(Emphasis supplied)

Thus, it is manifestly apparent from this decision that the rule-making power of the Commission underthe Act, with respect to symbols, would have to prevail over any ordet that it may pass and the words "conduct of elections" would not make, the Commis sion a purely legislative body.

Another case on.which great reliance was placed is: Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New De/hi and Ors.1 In this case, it was held that an Order passed by a ' statuiory functionary on certain specific grounds cannot be .supple .

mented by external evidence like affidavits or otherwise. This case also nowhere lays down "thanhe Commission possesses plenary. powers-both executive and legislative-in the guise of concluct of elections. One of the main questions posed by Krishna Iyer, J .. speaking for the Court, was as follows:

"Can the Election Commission, clothed with the comprehensive funtions under , A, rticle 324 of the Constitu- . tion, cancel the whole poll qf'a constituenc¥ after it bas !/eq

(I) (1978] 2 S.Q.R .. 27Z

. t-4

A.C. JOSE v:. s. PILLAI (Fazal Ali, J.)

held, but before the formal declaration of the result has been made, and direct a fresh .poll witho11t reference to the guide lines under ss. ~8 and 64(a) of the Act, or other legal prescription or legislative backing. If such plenary p0wer

exists, is it exercisable on the basis of his inscrutable 'sub . jective satisfaction' or

0 only on a reviewable objective assess ment reached on the basis of circumstances vitiating a free and fair election and warranting the stoppage of declaration of the result and . directions of a fresh poll not merely of particular polling st.ations but of the total constituency ?"

' .

The learned Judie while answering the question observed thus: • '.'Article 324, which we have set out earlier, is a plenary provision vesting the whole responsibility for natio 'nal and State elections and, therefore, the nec.essary powers to discharge that function. It is true that Art. 324 has to be read .in the light of the constitutional scheme and the 1950 Act and the 1951 Act.

Sri Rao is right to the extent hdrisists that if competent legislation is enacted asvisualized in Article 327 the Commission cannot make himself free from the enacted pr.escriptions ..•. And the supremacy of valid law over the Commission argues itself.

No one is an imperium in imperio in' our constitutional order. it is reasonable to hold that the . Commissioner cannot defy the law armed by Art. 324. Likewise, his functions are subject to the norms o(fairness and he cannot act arbitrarily. Unchecked power is.alien to our systein ...... Article 324, in our view, operates in areas left unoccupied by legislation and the words 'superin tendence, direction and control' as well as 'conduct' of all elections' are the broadest terms."

(Emphasis ours)

The observations, extracted above, furnish a complete. answer

to the arguments of Mr. Jethmalani and Mr. Asoke Sen as it has.

G been clearly held that Art 324 would operate only in areas left unoccupied by legislation, even if the widest possible connotation is given to the language of Art. 3Z4. W

0hile sqmmarising the propo- . sitions, the Court made the following observations:

"Two limitations . at least are laid on its plenary H

(I) ]1878) 2 SCR, 272,

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SU~REME COURT REJ?ORTS [1984] 3 s.c.R

character in the exercise . thereof. . First!;, when Par /iament or any State Legislature has made valfd law relating to or in connection with elections.' the Commission.shall act in con . formity with, not in. violation of such provision but where such law is silent Art. 324 is a reservoir of power to act for th_e avowed purpose of, not divorced from pushing forward a free .and f:rtr election with expedition.

Secondly, the Commission shall be responsible to the rule of law, act . bona fide and be amenable to the norms of natural justice in _so far as conformance to such canons can reasonably and realistically be required of it as fairplay-in-action . ' ·• ' . m a most important area of the constitttional order, viz.,

elections." • (Emphasis ours)

This is actually the main spirit and' gist ofthe decision which. appears to have been relied upon by the appellant but which does not at all support his stand. In the aforesaid case, there did not appear to be any conflict between the Order passed by th_e Commis . sion and the Act o.r the Rules. The question at issue in the instant case did.not really arise in the form and shape as has been .presented.before us. On the other hand, the matter seems to have been fully settled. by an earlier decision of this Court in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency and Ors.' were Faz! Ali, J. (as he then was) while making a very pointed and crisp approach, scientifically analysed the positipn thus:

"Broadly speaking, before an. election machinery can be brought into operation, _there are. three requisites which require to be attended to, namely, (I) there should be a sei of laws and rules making provisions with respect to all matters relating to, or in connection with, elections, and it 'should be 'decided as to how these laws and rules are to he made; (2) there should be an executive charged with the duty of securing the due conduct of elections; and (3) there should oe a judicial tribunal to deal with disputes arising out of or in.connection with elections. Articles 327 and 328 deal with the first of these requisites, Art. 324 with the second and article 329 with the thid requisite. The other two articles in Part XV, viz., articfes 325 and 326, deal with two

• ' • ' • ' - • I '

C ll [19S21 SCR l~.

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• A.G. JOSE v. s. PILLAI (Faza/ Ali, J.)

matters of principle to which the Co.nstitution-framers_ have attached. much importance .. They are:-(1) prohibition 11gainst discrimination in the preparation of, or eligibility for inclusion in, the electoral rolls, on grounds of religion race, caste, sex or any of them; and (2) adult suffrage. Part XV of the <;:onstitution is really a code in itself providing the entire ground-Work for enacting appropriate laws and setting up suitable machinary for the conduct of elections.''

We fully endorse and follow the above observations of the

Constitutio~ Bench which lay down the correct la\Y on the subject and we have.nothing further to 'add to the approach made by this Court in the case referred to above. on the other hand, our view e: that Arts. ~24 to 329 have to be construed harmoniously flows as a logical' corollary from the ratio in Ponnuswami's c.ase .

. The pointed an pungent observations extracted. above, really amount to a Bible of the 'election law as culled out from an interpretation of the provisions of Arts. 324 to 329 of tb.e Constitution, and were referred to with. approval even in M ohinder Singh Gill's case (supra).· During the "last three decades this case has neither .been distinguished nor dissented from and still holds the field and with due respect, very rightly. No other case ever made such a dynamic and clear approach to the problem, perhaps due to the fact that no such occasion arose because the Commission has always been following the provisions of the Act and the Rules alid had never attempted to arrogate to.itself powers which were not .tf meant to belong to it. Indeed, if we were to accept the conteqtion' -.

of the respondents it would convert the Commission into an abo lute despot in the field of election so as to give directions regarding . ., the mo.de and manne.r of elections by passing the provisions of the Act, and the Rules purporting to exerci_se. powers -11nder cover of.

Art, 324. If the .Commission is armed with such unlimited and arbitrary powers and ifit eyer happens that the persoll!J manning the commission shares or is wedded to a particular ideology, he could by giving odd directions C'ause a political havoc or bring about a constitutional crisis, . setting at naught the intesrity anq independence of electoral process, so important and indispensible to the democratic system.

Further, such an absolute and uncanalised power given to the Commission without providing any guidelines would itself destroy the basic structure of the Rule of Law. It is manifew

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SUFREMB COURT REPORTS [!984J 3 s.c.a.

tha_t such a disastrous consequence could never have been c ontemplatea by the Constitution makers, for such an interpretation, as suggested by the counsel for the respondent, would be far from attaining the goal of purity and 'sanctity. of tha electoral process.

Hence, we must construe Arts. 324 to 329 as an integral part of the same scheme collaborating rather than colliding with one another.

Moreover, a perusal of Arts. 324 to 329 would reveal tht the~ 'legislative powers ih respect of matters r"elating to Parliamnt or

the State Legislatures vests . in. Parliament and in nci other body. ,. The Commission would come into the picture only if no provision has been made by Parliament in regard to the elections to the Parliament or State Legislatures.

Furthermore, the power. under Art. 324 relating to superintendence, direction and control was actually vesting of merely all the executive powers , and not the .legislative powers. In other words,. the legislative power of

Parliament or of the legWature of a State being "?ade subject to Art. 324 Dnly mea_ns that no law made by Parliament nnder Art. 327 or by a State legislature under Art. 328 can take away or deprive the Commission of the executive power in regard to matters entrusted to ii'; . viz. superintendence, direction and control of elections. The right to file an election petition directly flows from Art, 329 and cannot be affected in any manner by the exercise of executive power by {he Commission under Art 324.

Id view of the above, it is not neeessary for us to consider a number of other authorities . that were cited befQre us as they do not appear to be directly on point. '

1t is pertinent to indicate that the High Court fll into an obvious fallacy by acceptance of the position that the direction of the Commission was intended to operate in an uncovered field.

When the Act and the Rules prescribed a particular method of voting, the Commission could not in'novate a new method and contend that use of the.mechanical process was not covered by tbe etisting Jll'.v and, therefore, did not come in conflict with the law in the field.

To sum up, therefore, the legal and constitutional position is as follows:

~ . . .

(a) When there is no Parliamentary legislation or rule made under the said legislation, the Commission is free to pass any orders in respect of the conduct of elections,

A.C. JOSll v. s. PILLAI, (Fazal Aii, J.) 87

(b) 'where there is an Act and express Rules made thereunder it is not open to "the Commission to override the Act or the Rules and pass orders in direct disobedience • to the niancfate contained in the Act or the Rules. In other words; the powers of the Commission are meant to supplement rather than supplant the law (both statute ."and Rules) in the matter of superintendence, direction and control as provided by Art. 324,

(c) where -the Act or the Rules are silent, the Commissiori ·

has no doubt plenary powers under_ Art. 324 to give

• any direction in respect of.the conduct-of election, and 0

(d\ where .a particular direction by the Commission is submitted to the government for .approval, as required by the Rules, it is not open to the Commission to go ahead with implementation of it at its own sweet will even if the approval of the, Government _is _not given. _D

Apart from the arguments referred to above, an alternative a{gume_nt put forward before us was that even the_ Rule_s framed under the Act authorise the Commission to give direction to hold voting by the use of a voting machine and this is covered by s. 59 of the Act and Rule 49 of the Rules. This argument merits Serious E consideration. In the insta,_t case, the main grievance-of appellant i s that \he voting by mechanical process was not permissible either under the Act or under the Rules, Reliance was, however, placed by the appellant on s. ?9 of the Act which runs thus :

"59. Manner of voting at elections~

At every election where a poll is taken votes shall be given by ballot in such mamrer as may be prescribed, and no votes shall be received byproxy.': ·

It is obvious thats. 59 uses the words "ballot in such mann~

as may be prescribed", which means prescribed by the Rules made G under the Act. A reference to s. 61 of the Act would show that Parliament intended use of ballot papr only for casting of votes.

This takes us to rule 49, the relevant part of which may be extracted thus:

"49. Voting by ballot at notifiedpolling stations-

(!) Notwithstanding any thing contained . in the

Stil'RBME COURT REPORTS t19s4i 3 s.c.il, k

p(eceding provisions of this Part, the Election Commission may, by notification published in the Official Cazette at least 15 days before th.e date, or the first ol the dates, of poll appointed for an election, direct th.at the method of voting by ballot shall be followed in that election at such polling statiens as miy be specified in the notification." • It was submitted that having regard to the modern and changing conditions of the society a dynamic approach should be made to the interpretation of the aforesaid two legal requirements. The matter does not rest here: something could be said for "the view that the word 'ballot' includs voting by machines.

Section 59 prnceeds to explain its.intention in setting up the mode, manner and method of voting' by prescribing express rules as to how the voting should be done. In this connection, reference may be made to Rui.e.22 which relates to the form ofba11ot.paper and its contents. Rule 23 requires the Returning Officer to record on the counterfoil of the ballot paper the lectoral roll number of the elector as entered in the marked copy of the electoral roll. Rule 27 refers to the return of ballot paper after an elector has recorded his vote or made iiis declaration. Rule 30, which, prescribes the contents of ballot papers, is co.mpletely contrary to the concept of ballot by machine. Similarly, Rules 33, 38, 39 and 40 seem to be wholly inconsistent with the mechanical process but seem to adopt the conventional method. As we have already indicated, these Rules ate binding on the Commission and it cannot by an executive fiat either override them or act contrary to the statutory provisions of the Rules, •

On a proper and detailed analysis of these Rules it is clear that the Act by framing the. •Rules completely' ex.eluded the mechanical process which, if resorted-to, would defeat Ill a large measure the mand;:\tory requirements of the Rules,

It is a well settled rule of interpretation of st.a tut es that words, phrase or sentences of a statute should ordinarily be understood in their natural, ordinary, popular and grammatical seµse unless such a constniction leads to absurdity. Mr. Jethmalani argued'that the word 'ballot' is wide enough to include the mechanical process and, therefore, the direction of the Commission falls squarely within the four .corners of both s'. 59 and Rule 49.

Reliance was placed on the dictionary meaning of the word 'ballot' Which has been defined in Black's Law Dictionary (Fourth Edn.) at page 182 thus : . . .

\ ,_.

A.C. JOSE v. s: PiLLAI (Faza/ Ali, J.)

."means act of voting, usually in secret, by balls orb~ written or printed tickets or slips of paper ; the system of voting by balls or tickets, or by any device for castmg or ' 'fecording votes, as by voting machine."

. In Stroud's Judicial dictionary (Third Edn.), however, 'ballot' means "votes recorded-all ballot papers put into the ballot boxes by the electors (p. 3.239)". Stroud therefore, does not subscribe to the view of casting of vote through a voting machine and we agree with this view because casting of votes by machine is a mechanical process, which has come into existence long after the Act was passed and is nofgenerally invoked in most of the 'democratic countries of the world.

Concise Oxford dictionary defines the word 'ballot' thus :

. "(usu. secret) voting,· small ball, ticket or. paper used in

vting; votes so recorded; lot-drawing."

In Webster's Third New International Dictiona; y (Vol. I) at page 168 'ballot' is defined .thus :

"to obtain a vote from ·(a .body of voters) (the men on the

. '. t

proposal), to select by b.allot or by the drawing of lots." B

Itmay be mentioned here that the word 'ballot' has been derived from the word 'ballota' which existed at a time when there was no question of any system of voting machine. Even in 1951 when the .. Act was passed or the Rules were made, the system of voting by machine was not in vogue in this country. In these circutnstances, therefore, we are constrained to hold that the word 'ballot' in its strict sense wonld not in, clude voting by the use of voting machines. Legislatures must be deemed to .be aware of the modern tendencies in various .democratic countries of the. world where the mechanical system has been introduced and if despite the plain meaning of the word 'ballot' they did not choose to extend the definition given as far' back as 1950, it may" be safely presumed that the Parliament intended to use the word 'ballot' in its popular. rather than a technical sense. Our view finds good . deal of support from the circumstance that.even though the system of voting by mechanical process was submitted to the Government for approval yet the same was declined which shows that the rulemaking authority was not prepared to switch over to the system of

. c.

....

SUPREME COUR'f REPORTS . . . tt984l 3 s.c.k.

voting by machines, perhaps on account of the legal bar .as. indicated by us.

It is ratl:ier .unfortunate that the Union of India which is a party to this case, bas taken a very neutral stand by neTtber supporting nor opposing the directio~ given by the Commission.

Having regard to these circumstances," therefore, we are clearly of the opinion that according to the Law as• it stands. at present, the Order of the 'Commission directing casting of ballot by macb.ines in some of the polling stations, as indicated above, was without juisdiction and could not have been res()rted to .

It was further pointed out by the respondent tht the process of votingl:iy machines is very useful as it elimin_ates a nfitnber of drawb.acks and expedites, to a great exfent, the declaration of the result of the election by elimillating the process of counting of votes from t-he ballot boxes. On the other hand, the appellant has pointed out a number of defects, some of them being of a vital nature, which would.defeat the electoral prcess. We would now indicate some of the apparent defects which were pointed out to us by the counsel for the appellant after giving a demonstration of the voting machine before us : . .

"The absence of a provision for identifying the candidate for whom a void vote has been cast-

. (a) by impersonating a dead vot.er,

(b) by impersonating an absentee voter,

(c) by the genuine voter who tenders a vote after a

vote has been cast in his name by1m impersonator

(R. 421,

(d) where a vote is void having been cast after clcsing

time (R. 43),

(e) where the voter ha~ cast vote~ in more than one bopth in the same constituency [s. 62(2)],

(f) where the voter has cast two votes in two constituencies [s. 63(3)],

(g) where the voter is disqualified unaer s. 16 of the Act. [s. 62(4)],

A.c. Josil v. s.-PILLAI (Fazal Ali, i.)

(h) where an elector marks a ballot paper wrongly

• for a candidate, he loses the right to get a fresh ballot paper ror easting his vote correctly (R. 41).

The provisions of S. !OO(l)(d) and more so S. IOl(a) and

(h) under which by excluding the void vol.es or votes cast as a result of corrupt practices any other candidate can be declared duly elected as the true representative of the . constituency,"

On the other hand, a number of advantages which could be obtained by using the mech&nical process were pointed out by. the respondent, the suin and substance of which was that despite some defects the elecl!lral process would be expeditious and would cut out a number of delays or mistakes committed at various, stages. The fact, 'however, remains that if the mechanical process is adop- . ted, full and proper training will have to be given to the vot<rs

which will take quite some time. . However, we refrain from making any comments on either the defects or advantages of voting machines because it would be for the Legislature and the Government, if it revises its decision at one time 'tir the other, to give legal sanction to the direction given by the Commission. For these resasons, it.is not necessary for us to go into the very detailed notes of arguments subniitted by the parties in respect of this aspect of the matter;

Lastly, it was argued by the counsel for the respondents that the appellant would qe estopped from challenging the mechanical process because he did not oppose the introduction of tl)is process although be was present in the meeting personally or through his agent. This argument is wholly untenable because when we are considering a constitutional or statutory provision there can be no estoppel against a statute and whether or not the appellant agreed or participated in the meeting which was'held b\fore introduction of the voting machines, if such a process is not permissibleor autho rjsed by law he cannot be estopped from chaJlenging thesame .

For the reasons given above, we allow. th~ appeal, set aside' the election of the respondent with respect to the 50 polling stations where the voting machines were used and we direct a

repoll to be held in these 50 polling station.s: We, however, do H not touch or disturb the results of the votes secured in tjie other

3<1 polling stations which was, done in accordance with Jaw, viz.,

92 SuPREME COURT REPORT

• l' [19S4] 3 s.c.R.

'A the use of ballot papers.

After the repoll, the result of the election would b.e announced afresh after taking into account the votes already secured by the candidates, including the Res-pondent.

We make no order as to costs.

In course of argument, Mr. Sen for the Cornrnision informed us that at eleven elections held, under the Act, the mechanical B . device Was used and in nine, no challenge has been raised. It

' •

follows that -our judgment will not affect those nine elections in

' any manner.

N.V.K.

Appeal allowed.

• •

C. JOSE

SIVAN PILLAI & QRS

0NOANATH MISRA, JJ.

Articles 324

PeOple Act 1951

Section 59

Conduct of Election Rules 1961

-Jhis Coo

People Act 1951

Conduct of Election Rules

Conduct of Election Rules 1961

Article 324

Article 324

K.K. Venugopal

G. Vishwanathalyefand

E.M.S. Aliam

A Ram Jethamalani

M.M. AbdulKhader

Dileep Pillai

M.A. Firoz

K.G. Bhagat

A. Subhashini

S.S. Ray

A.K. Sen

Ram Jethamalani

Rani Jethmalani

FAZAL ALI,

Kerala

Sivan Pillai

Conduct of Election Rules, 1961

People Act, 1951

Election Commission of India

Art. 324

Constitution of India

Government of India

Fazal Ali

Art. 324

Parliament

Art. 324

Arts. 324 and 327

Art. 324

Cpmmission

Art. 324

Union of India

s. 82

Art. 324

Jethmalani

Arts. 324 to 328

Arts. 325 to 329

Art. 324

Arts. 326 to 329

Art. 324

Election Commission

Supreme Court

Marshall

Art. 324

Seventh Schedule

Ampedkar

Election Commission

Ambegkar

article 289

Ambedkar

Arts. 324 to 329

Ambedkat

Asoke Sen

Art. 324

Arts. 325 to 329

Seo

Art. 324

Art. 324

Conduct of Election Rules, 1961

Central Government

Art. 324

Art. 324

[1972] 2 SCR 318

SUJ>REMB COURT RBJ>ORTS [1984] 3 s.c.

Krishna Iyer

A.C. JOSE

s. PILLAI

Article 324

Art. 324

Rao

Article 327

Art. 324

Article 324

Jethmalani

Asoke Sen

Art 324

Art. 3Z

Art. 324

Faz! Ali

Articles 327 and 328

Art. 324

article 329

Ponnuswami

Arts. 324 to 329

M ohinder Singh Gill

Arts. 324 to 329

Arts. 324 to 329

Art. 324

Art. 324

Art. 327

Art. 328

Art 324

Art. 324

Art. 324

s. 59

s. 61

Section 59

Stroud

s. 62(2)

s. 63(3)

s. 16

s. 62(4)

Sen

N.V.K.


, INDER PAL GUPTA

THE MANAGING COMMITTEE, MODEL INTER COLLEGE

THORA

May 3, 1984

[O. CHINNAPPA REDDY, A.P. SEN AND E .. s. VENKATARAMIAH, JJ.]

Termination of the ser11ices of a P.ri'nclpal 011 probarlon-P.racedure .Prescribed under section 16 G artd _K..egulations 35 to 38 being 1he saffie as provided bY Article 311 (~) of the Constit.ttion of ft1dl11, the princ!ples which govern .such ca yes of terminatio 1 should be the sami a~ fiigse' u11der!ying Article 3JJ t2) of-the Con1titurion-lnterpfeiation of Sttiture~-Abence of enquiry coniemplated under Regulations 35 ii; 36 before the termination of the pro.vision casting a stigma is ilteg:il.

The appellant was app_ointed. on probatiOn as the' Principal of the Model Inter College, Th,)ra on August, 28,_ 1967.

His priod of proba~ "tion was extended bY one yc1r 'ind .thereafter by a letter d.; iied June_ 3p,

1969 addressed to him with a copy o.f a _resolution dated 27th. April, 1969 passed by the Managi'lg Committee wherein various allegations were made regarding his conduct, his services were termin1ted by the respondent •.

Aggrieved by the said orders of termi1r1tlon of his services, the appellant filed a \Wit'petiti'n NS. 4Si3 of l9iO on the file of the High Court of Allahabad. 1he said writ p3tition was allowed on January 23, 1.973 and the order of (errnina_tion was quas, hed.

However; the special Appeal No. 31of1973 filed by Resp.oident was ac9epted and allC>wed by the Division Bench; Hence the appeal by special leave of tQe Court.

Allowing tbei appe3l, \he Court,

HELD :

1. Section 16 G of the Uttar Pradesh Intermediate Education Act, (Act ([.of 1921) provides that every person employed in a recognised institution shall b~ governed by such conditio1s of service as may be prescribed by ReguLtions and that the Regulationg, inter alla , may be made in r~p:!ct 'of tl.1e period of probJ.tion; the conditions of confiratioo and the procedure for the i nposition of punishmei; it.

Rgulations 35 to., 38 relate to the procdure to be followed before imposing the punishment of dismissal or removdl fromservice and they being virtually the same as .provided by Article 3.1-1 (2) Of the Constitution, the principles wbjch should

govern this.i11Sta-nt case should therefore be t\le same as those under lying Articlc'.\11 (2).

Ad"mitte-d!y here no e~1quiry was held as provided . fc;>r in. Rr-gulationc; 35 and 36.

Therefore th_e nonco 111plian.::~ with the ·

l. J> •. GtiPTA v. INTER. C(JLLEGB, THOR.A (Venkataramiah, J.) .153

r>rovisions or Section '16 G of the Act and Regulalions 35 to 3& vit.iates the termination order.

[747F-G; 759G; 760E]

Parshotam Lal Dhingra v. Union of India [1958) S •. C.R. 828; Shamsher ·

.S/ngh.nd Anr.v. Stateaf Punjab, [1975] l S.C.R. 814; Anoop.faiswalv.

Government of India and Anr. [ 1984] I <icalc.105; referred to.

If the order of terminatiori carried a stigma it has to~ fall to the groUnd unless it is prec_eded by 2,11 enquiry .as contemplated by law.

reding of the letter of termination of the service and the resolution which

fims part of-that letter clearly shows~ that they bear a mark of disgrace $d infamy and the appellant is visited with evil consequences.

The order of' the Division Bench is tberefore unsustainable. [762D-E]

[The Cou1t declared. that the appellant continues to be in the service of the College. with eotitl ement to all consequential ben.efitS

irlcludiog the salary and allowances as if there was no break in his service.] [762G] .

CIVIL APPELLATE JURISDICTION :.

Civil. Appeal No. 571 of 1975'

Appeal by Special leave from the judgment and Order dated the 14th March, 1973. of the Allahabad High Court in Special Appeal No. :'I of 1973.

R.K. Garg and D.K. Garg for the Appellant.

S. Rangaran and N.N. Sharma for Respondent.

S. Markandeya for Respondent:

Gopa! Subramaniam and Mrs. Shobha Dikshit for Respondent.

The Jndgment of the Court was delivered by

VENKA'I; ARAM!AH, J. The appellant was appointed on probation as the Principal of the Model Inter College, Thora, District.

Bulandshahr (hereinafter refer.red t<:> as 'the College;) on August 28, 1967 in'accorda.nce with the procedure prescribed by the Intermediate Education Act, 1921 (U.P. Act No. II of 1921) (herernafter referred to as '(he Act') and the Regulations made thereunder. The period of probation prescribed was one year. Shortly before the expiry of the p; rlod of probation on August 25, 1968, ihe. Managing Committee of the College passed a resolutir>n extending the period o(probation of the appellant by one year. Thereafter on April 27,

sUPREME couttt REPOltTS

(1984] 3 S.C.R.

1969, the Mana3ifig Committee met to consider the question of confirmation of the appellant in.the post of the principal.

As the Managing Committee . was not satisfied with . the services of the appellant, it resolved i.o terminate his services and after obtaining the approval of the District Inspector of Schools wrote a letter dated June 30, 1969 to.the appellant communicating its decision to tcrmi; nate the services of the appellant enclosing therewith a copy of its resolution dated April 27, 1969.- The letter dated June 30, 1969 reads thus :

"From

The Manager Mqdel Jnter College Thora (Bulandshahr)

Ref. No ..

Shri I.P. Gupta Chilkana House, Xumaran, Bridge, Saharanpur.

Dated the 30th June, 1969

Sub: . Termination of your service as Principal.

Dear Sir,

• With reference to the above, I have to mention that in view of the resolution N.o. 2 of the Managing Committee dated 27.,!.1969 (copy enclosed) and subsequent pproval by the D.1.0.S. Bulandshahr you are hereby infored that your _sei; vice as Princip~I of this Institution is tenninated with immediate effect. You will however be entitled to your dm:s in lieu of notice .. Please hand over complete charge to Sri D.D. Gupta, who is being instruct.ed accordingly, Without delay.

Please note that you cease to function as Principal of this Institution forthwith: You-are neither authorised to operate any account nor will you perform any other act in the capacity of the Principal of this Institution henceforth.

Of course the civil suit filed .by Shri S.P. Jain of Meeiut for the recovery of his dues.is your sole.· responsibility . . Please see that the matter is reasonably settled failing which you shall be. liable to any loss caused to the institution in that respect: While handing over charge please do not forget to return all papers or documents re la ting to the college, .

\ .

i. P. GUPTA ' INTER COLLEGE, THORA (Venkataramiah, J.)

7SS. ·

or any other college property in your possession.· All accounts also may kindly be cleared.

Since . despite sever11\ assurai1ces you have failed to return during the complete summer vacation, this nitima

tin is being conveyed to you at your Sahaninpur .address, in this staie ofuncertainty under registered cover to ensure safe delivery. Recently you are reported to have been to ·

Bland'shahr for a few day~. Please come immediately and do the needful in. the matter . •

. Sri D.O. Gupta.is to assume.office of the Principal of C this institution wiih immediate effect in officiating capacity till further instruction. He may take over .charge from Sri J.P. Gupta when he returns.

Yours faithfully,

sd/- . Manager Model Inter College, Tohra (Bulandshahr)"

The copy of the resolution of the . Managing Committee sent alongwith the above letter reads thus. :

"Resolution passed by the Managing Committee in its meet iilg held on 27.4.69 terminating the prQbationary period of the

Petitioner. ' . . . ·

 2.

The report of the Manager was read. Sri I .P. Gupta, who was present in the meeting also heard it. He was asked by the Committee to have his say in respect of the report,. At first he refusod t? say anything but when the Col)lmittee requested him to consider it serio usly and let the Committee have the benefit of his views, he said that he had nothing to say in that respect since he wantedto quit himself due to circumstances.

On this the Committee agarn requested him to put some such suggestion in consultation with the manager as may be helpful for. the Committee to arrive at some conclusion. In the absence of any satisfactory sugges

SUPREME.COURT REPORTS !1984j 3 s.c.Ii:

tion the Committee took the d'cision. At this stage the . Principal retired out of courtesy.

On the basis of the Service Book of the Principal, the mamger told tha.t last year his confirmation was due on 28.8. 1968 but in the meeting of the Committee held on 25.8 68 in wbih the Principal was also present, the report of the Manager, dated 4.7 .. 68 was put as desired by the President Reso1ution 3 date.I 25.8.68 under the head '.'Consideration qn confi.rmatioh of . Shri LP. Gupta; Principal" incorporates the decision of the Commitlee as "According to the Manager's report the period of probation of the Principal extende\f by one year." The proceedings book contains signatures of Sri J.P. Gupta for rceiying a copy of the said resolution. At the end of. the prooeedings the minute book contains signaturei of Sri I.P. Gupta alongwit]l other members or' the Committee present.

The facts contained in the report of the Manager being serious and not in the interest~ of the institution, this Committee unanimously resolves th1t the period of probation of Sri I.P. Gupta, Principal, be terminated without waiting for ihe period to end and the manager is. empowered to take' necessary steps in this respect. Any thing done by him in this respect 'hall be considered . to have een done by this Committee. The manager is also authorised to hand over charge to Sri D.D., Gupta when necessary.

Sri LP. Gupta. also came in 'With a Vote of thanks to tile Chair the ri1eeting ended.''

The English trnnslation of the relevent part of the report of the Managor on the basis of which the above esolution.was passed which is im:orporated in the counter affidavit filed on beh'.1lf of the Managing committee reads thus : " . .

"It will . be evide.nt from the above that the Principal's stay will not be in the interest of the institution. It is also evident that the seriousness. of the lapses is enough to justify dismissal but no eductional institution should take all

1. P, GUPTA v. H-ITER COLLEGB, Tl{ORA (Venkataramiah, f) 757

this botheration. As such my suggostion is that our purpose will be served by termination of his ser¥ices, Why, then, we .should enter into any both, ration. For this, i.e. for termination of his period of probation, too, the approval of the D.I.O.S. will be necessary. Accordingly any delay , in this matter may also be harmful to our interests.

Accordingly I suggest that instead of taking any serious action, the period of probation of Sri Inder Pal Gupta be , terminated without waiting for th!! period to end."

Aggrieved by-the order of termination of his services referrd to above, the appellant filed a P'titi.on u_;1dr artile 226 of the Constituti0n in Writ Petitiol) No. 4823 of 197.0 on the file of the High Court of Allahaba, J chalbngii; g its correctness and pr-Lying. for appropriate reliefs. The learned Sinle Judge who heard the writ petition allowed it by his order dated January 2, 1973 by quashing the order of terminati.on: The Managing Committee of the College preferred an appeal. against that decision to the Division Bench of High Court in Special Appeal No. 31of1973. The Division Bench allowed the appeal and dismissed the Writ 'retition filed by the appellant by its order dated .March 14, 1973. This appeal is filed by the. appellant against the Judgment of the Division Bench after obtaining the special' leave of this Court under Article 136 . of the Constitution.

The College is an institution recognised under the Act and is

govmed by the provisions of the Act.

Section 16-G of the Act provides that every person employed in a recognised i.nstitution shall be'governed by such conditions of service as may be prescribed . by Regulations and that the Regulations inter alia may be made in respect of the period of probation, the conditions of confirmation and the procedure for the imposition of punishment.

The Board of High School and Intermediate Education is authorised to make Regulations in respect of all matters which by the Act are to be provided for by Regulations with the previous sanction of the State Government. Under the Regulations so made uncler the Act, the period of probation prescribed is one. year whether a person is a direct recruit or has been promoted from'a lower grade in service of the institution to a higher grade The period of probation of a Principal or Head Master may be extended by a maximum period of twelve months.

At least six weeks before the date of which t4e ·

confirmation of a Principal or a Head Master is due, the Manager . of the institution is required to prepare his confirmation papers and place them before the Committee of Managemnt and the decision of the Committee of Management in each case is required to be re.corded in the form of a resolution.

Regulation 10 provides that a person placed on probation shall be. confirmed if he fulijls the requirements of regulation 9, bas worked with dili'genee and otherwise proved bimelf fit for the post for wh'ch.be was recru:ted and his integrity is certified.

Whenever the punishment of dismissal, removal or discharge, reduction in rank or diminution in emoluc ments is imposed, prior approval of the Inspector should. have 10 be obtained. Regulations 35 to 38 of the Regulations made under the .Act which prescribe tbe procedure for termination of the serv'ces of an employee b~ way of punishment read. thus :

 "35. On receipt of'a. complaint. or an adverse report of facts of a serious nature of the Committee may in the ases of ieacbers appoint the Headmaster or Principal or Manager as the 'mquiry officer (or the Manager may himself set up the enquiry if such power bas been delegated to )lim

by the Comroitlee under rules) and iu tbecase of the Head- . master or Principal, a small sub-committee, with instructions to submi.t the report as expeditiously as possible.

36, (1) The grounds on which it is propose.ct to take action shall be reduced in the form of a definite charge m

charges which shall be communicated to the employee charged . and which shall be so clear and precise as to gi.ve . sufficient. indication to the charged employee. of the facis

and circumstances against him.

He shall be required within three weeks of the receipt of the charge.-sheet to put in a written statement of his defence and to state whether be desired 'to be heared . in person. If he or ihe inquiring authority so desires, an oral enquiry shall be held in respect of such of the allegations as are not admitted.

At that enquiry such oral evidence will be heared as.the inquiring authority , considers necessary. The person charged shall he entitled to cross-examine the witness, to give evidence in person, and to have such witnesses called as he may wish; · provided that the inquiring authority conducting the enquiry mav, for sufficient reasons to be recorded in writing, refuse to call a witness. The proceedings shall contai11 a sufficient

, 1

). P. GUPTA v. INTEJ\ COLLEGE, THORA (Venkataramiah, J.) 75'l

record of the. evidence and statement of the findings and A the grounds thereqf. The inquiring authority conducting the enquiry may also, separately from these. proceedings, make his own recommendation regarding the punishment to be imposed on the employee.

(2) clause (I) shall not apply where the person concern- . ed has absconded, or where it is for other reasons. impracticable to communicate with him.

(3) .All or any of tl, J.e provisions of clause (I) may for sufficientreasons to be recorded in writing be.waived. where there is difficulty in observing exactly the requirements thereof and those requirements can in•the opinion of the inquiring authority be waived without injustice to the person charged.

37. Soon after the report of the proceedings and recommendation from the inquiring authority are received, .the .

Committee of Management shall meet to consider tl;>e report of the p'roceedings and recommendation made and take., decision on the case. The employee shall, however, be allowed, if he so desires, to appear before the Committee in person to state his case and answer any question that may be put to him by any member present at the meeting, The Committee shall then send a complete report together with all connected papers to the Inspector 11r Regional Inspectress as the case may be, for approval of action propos_ed by it.

38. If it is felt at any stage that the matter can be more properly dealt with by action to terminate service with notice, this may be qone with the approval of the Inspector or Regional Inspectfess, _as the case may be."

It is seen from the foregoing that that the above provmons relating to the procedure to be followed before imposing the punishment of dismissal or removal from service ate virtually the same as provided by Article 311 (2) of the Constitution and the principles which should govern this case should, terefore, be the same as those underlying Article 311 (2).

The decisions in Parshotam !-al Dhingra v. Union of Indla,(1) Shamsher Singh & Anr. v. State of

(1) [19S8} S. C. R• 8~8;

A Punjab(1) and Anoop Jaiswalv. Government of India & Anr(~) explain the true legal position governing the terminaiion of the services of a probationer.

In Parshotam Lal Dhingra's case (supra), this Court observed at prge 862 thus :

"In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination. is not a punis)1ment and carries with it no evil consequences and so Art. 311 is not aitrac- .. . \ ted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedurli prescribed for inflicting the punisbment of dismissal or removal or reduction in rank, the Government• may, nevertheless,· choose to puuish the servant and if.the termination of service is sought to be founded cm misconduct, negligence, inefficiency or other disqualification, . \hen it is a punishll)ent and the requirements of Art. 311 must be complied with."

The above rule applies to probationers too .

Admittedly no enquiry was held in this ase 'as provided in Regulations 35 and 36 of the Regulations made under the Act.

Apparently iti. the light of the principles enunciated in Parshotam Lal Dhingra's case (supra) the learne.d Single Judge who decided the Writ Petition at the first instance itl the High Court observed in the course of his order 'thus :

.. G

"In this petiti.on nnder Article 226 of the Constitution the petitioner questio'ls the validity of the so-called termination of his service by the resolution passed by the Managing Committee on 27.4.1969. His case~ that-the termination in the circumstances in which it has been made. by the Managing Committee 'amounts to punishment of removal or dismissal from service and, the.punishment having been imposed upon him without following" the proedure prescribed rtnder sec. 16-G of the Intermediate Education Act and the regulations framed thereunder becomes vitiated.

Indeed it has not been denied or controverted in the counter affidavit that the action against the petitbner was taken by •

(I)

(2) [1975] l S. C.R. 814.

[1984-] I.SCALE !OS,

{ P. GUPTA v. INTER C:OLLEGE, THORA (Venkaiaramiah, J.)

the Managing Committeo on serious charges of 1nismauagement brought against the Principal by the Manager. But it was submitted py the learned counsel for the . opposite parties that a reasonable opportunity was affordee to the petitioner by the Managing Committee when he was faced with the charge~ and asked to. explain qn 27.4.69, at the meeting of the Managing C)mmittee. But the learned counsel for opposite parties when faced with the relevant regulations and Sec. 16-G of the Intermediate Education 'Act found it difficult to. justify t!tat what was done at the meeting of the Managing Committee on 27.4.1969 complies with those provisions. The attack made by the peti.tioIJer based on -non-compliance of the relevant regulamins and the provisions of Sec. 16-G of the Act on the validity of the action taken, appear< to be sound and sustainable: No -matter the ; ietitioner was not a permanent Principal yet he was entitld to a regular show cause notice against the charges brought and an opprtunity to be heard as required by the regulations. The impugned o; der of termination ihus was a mere camouflage and cannot be regarded in the circumstances as having been passed by the Managing COmn; tittee in the normal course. The District Inspector of Schools was in error in approving the termintio.n in tho.se circumstances.''

But the Division Bench of the High Court took a contrary view. The first error in the judgment of the Division Bench lies in its observation :

'Firstly, the order of termination is innocuous. It does not refer to any allegations or. even to the report of the Manager.'

. 761

It is seen from the letter dated June 30, 1969 by which the services of the appellant were terminated that the resolution of the G

Mangig Committee dated April 27, 1969 1s made a part of it by treatmg 1t as an enclosure to that letter. '.fhe resolution actually begins with a. reforence to the report of the Manager, and slates . that the facts contained in the report were 'serious' and 'not in the interests. of the institution'. It further refers to the fact that the appelllmi9 was asked to give his explanation to the alleations J11adq H ip the said report.

That reort state4 : ;~

"It is also evident that the seriousness of the lapses is enough to justify dismissal but no educational institution should take that botheration."

G.

. The above report was the real foundation on which the deci sion of the Managing Committee was based. This is a case where the order of termination issued is merely a camouflage for an qrder imposing the penalty of termination of service on the ground of ·

misonduct. Secondly, the Division Bench has tried to justify the . action of the Management by observing that since the management !iad to secure the approval of the District Inspector to its action, it was.neoessary for it to give its assessment of the work of the appel~ laiit as Pfltcipal and, therefore, 'in the context of the statutory requirements, it cannot be said that merely bec.ause the Manager's report or the resolution of the Managing Committee -refers to the various aspects of the assessment of the performanc~ of the Principal in terms unfavourable to him, it wpuld in law, amount to casting a stigma upon the Principal'. It is difficult to en graft an exception of the above type to the well-settled r, ule that if the order of termination carries a stigma, it has to fall to the ground unless it is proeeded by an enquiry as contemplated by law.

A reading of the letter of termination of the service and the. resolution which forms.• part of that letter clearly shows that they bear a mark .of disgrace or. infamy and that the appellnt is visited with.evil consequences 'as explained . in Parshotam Lal Dhingra's case (supra).

The. Division Bench,

ther~(ore, erred in holding that on 'the facts and in the circumstances of the case, the order of termination was. a11 innocuous one and did not earry any stigma. .The order of the Division Bench is, our opinion, an unsustainable one and is liable to the .set aside.

Jn the result, we allow this appeal, set aside the. judgment. of the Division Bench of the High Court and restore the judgment of the learned Single. Judge. We hereby declare that the appellant continues to be' in the se.rvice of the College. He is entitled to all the benefits flowi11g from this declaration including .ihe sabry and . allowances as if there was no break in his service. The: respondent College shall also pay the costs of this appeal to the appellant.

s.R,.

Appeal allowed.

• •

. {

,.;;·

INDER PAL GUPTA

THE MANAGING COMMITTEE, MODEL INTER COLLEGE, THORA

O. CHINNAPPA REDDY

A.P. SEN

E .. s. VENKATARAMIAH, JJ.

section 16

Article 311

Article 3J

Section 16

Article 3

Shamsher

CIVIL APPELLATE JURISDICTION

R.K. Garg

D.K. Garg

N.N. Sharma

S. Markandeya

Gopa! Subramaniam

Shobha Dikshit

VENKA'I; ARAM!AH

Intermediate Education Act, 1921

(1984] 3 S.C.R.

1969

D.D. Gupta

S.P. Jain

Meeiut

P. GUPTA

Venkataramiah

D.O. Gupta.is

J.P. Gupta

I .P. Gupta

4.7 .. 68

LP. Gupta

I.P. Gupta

D.D., Gupta

Inder Pal Gupta

.March 14, 1973

Article 136

Section 16

Article 311

Article 311

Anoop Jaiswalv

Parshotam Lal Dhingra

Art. 311

Art. 311

Article 226

sec. 16

I.SCALE !

Sec. 16

Sec. 16


• •

. SMT. RAJ RANI

CHIEF SETTLEMENT. COMMISSIONER DELHI AND ORS .

• May 3, 1984

[D A. QESAI, AMARENDRA NA TH SEN AND R.B .MISRA JJ .]

Evidence Act-S. 35-Scope of • . fJhether .certificate of _di:ath. given by respectable persons of the place where decea.\ed once resided admisible in evidence. Held no.

Nanak Chand, father of tbe appeJJ; nt, a displiced 'person from West Pakistan and having a verified claim in tlis name for _some Jand, disappeared

ome time in December 1954.

A report about his_ disappearance was lodged by the aopellant's brother, Dewan Chand, Respondent No. 2, with t.he local. police-in Punjab.

Tbe police made an enquiry ill the matter and ultimately aave out that Nanak Chand could not be traced.

In response to a: notice isiiued o the year 19'6 in suo 1noto revij)ion in regard to.the verified claim, jn tho absrnce or Nanak Charid, Dewnn Chand appeared and alleaed t.bat Nanak Chand.bad died leaving behind three. sons il; icluding him as the only Ie:gal heirS.

Dewan Cbilnd produced a certificate to the effect that Nanak Chand had died one year and 10 months prior to 25th Octo.bCr, 1956.

The certificate \Vas issued on his request by some rfspectable persons .of the place wber~ lbe family once resided.

The Additional Settlement Commissioner, Delhi, by his order d1ted. 27th October, 1956 allowed the application for substitutiorl and directed the three sons to be brougqt on record as legal repreentative!'i of the deceased Nanak Chand although NaAak Chand bad left behind three 1!ons, three daughters including theappellant and his widow.

The appellant, in an attempt to have her name substitufedt) filed a revision application against the order of the Additional Settlement Commissioner before the Chief Settlefnent Cornmis~ sloner under. s 5.of the Diplaced Persons (Claims) St1pplementary Act,

1954 ..

By his order dated 2.Sth September, 1965, the Chief SetUemeot

.- Commissioner ccnfirrned the orde_r of the Additional Settlement Commis .. sioner dated 27th October, 1956 an~ dismissed the revision appli .. ca.tion of -the appe-llant without affording; an opportunity of being_ heard to the rppella-nt.

The High Co1, lr1 dismissed the appellanfs writ petition and Letters_ Patent Appeal against the order o~ the Chief settlement Commis!!'ioner.

The High Court observed. 1J1at the Additional Settlement Commissioner acted right11 in re1'ing upon 1he death ceftificate _ prci; luc.ed by'"bewanChand and ubstilutir.g the sons .of Nnnak Chand as heirs of the deceased of his

~, riP, rd cl'aim.

Hence this appeal.

,'\llowiog t!ie appeal, .

• •

HELD.: A certificate given by repectable persons of :the place . where the d>tceasrd once resided,- to say the least, is not ad.missible in

f:v.idence, Sec. ~5 of 1he evidence Act povides that an elltry in any public or other official book, register, or record, stating a fact in issue or reiCvant fd'ct, and mede by a public servant in the disCbarge of his official duty,_ or by _any 01her person in performance A of a duty, specially enjoined by the law of the country in which such book, register or record iS kept; is itself a relevant fact. [769BC] ·

In the instant case a certificate by certain respectable person of tho place whCre the family once resided doesnot satisfy the fequirements of s.35 of the evidei; icC Act.

Tberfl is no. p_roof th, at any statutory duty WM cast upon the person issiiing the certificate to keep a record of birth 3nd death .andtherefore, the certificate of death hasno evldeotiary value. It is Very easy for .a. person to obtain a deat-h certificate from 'the soca11ed respectable persons in ordfr to grab the property.· If according to Dewan Chand, Nanak Charid had died heust also indicate where did be die aD.d it is the pl_ace. of .his eath which will be _relevant and not the place of bis birth or residence.

The certificate obviously is not of -the place where :Nanak.Chand ded". The authorities have graveJy-erred in relying upon tho

cortific, ate of death which was inadmissible in evidence. [769DE) ·

To •ee whether daughters would be entitled to interest in the pro perty left by Nanak Chand will depend upon the death of Nanak Chand before .. or after the enforcement of Hindu Suctession Actand to decide as to when'Nanak Chand died it was absolutely essential that an opportunity Sbc;>uld have been .offered to the appellant in acordance with the principles

of natural justice. [769H; 770A]

CiyIL APPELLATE JURiSDictioN 1971.

Civil Appeal No. 485 of

• From the Judgmeut and Order .dated the 29th January, 1970 of the .Delhi High Court in Let ers Patent Appeal No. 8/70. ' . . .

D.D. Thakur, E.G. Agarwala and V.X. Pcnditia for the Appel 1 !ant.

Charnan Lal ltrora for the Respondent.

• The. Judgment of the Court was delivered by

M1sRA, J. The. present appeal by certificate is directed against the judgment of the High Court of Delhi dated 29th January, 1970 ' in letttrs pattnt arperlccnJirrning the judgment and order of tho Je11rped Single judge of the High Court date\! 7t!i January, 1970,

RAJ RANI v. SETTLEMENT COMMR. (M; sa, J.) 165

Nanak Chand, father of the appellant was a displttced person from West Pakistan where he had le!t agric\lltural lands i~ village Chhota Bhukh Auta(, tehsil Bahawal .Nagar, district Bahawalpur.

After the partition of the country his claim beating Index No. B/BP- 3/259 was verified in his name for 26 standard acres 12! units. Nanak Ch!\lld disappeared sometime in December, 1954 and a rport about his disappearance. was lodged. by the appellant's brother Dewan ,

• Ciiand, arrayed in this appeal as respondent No. 2, on 25th ·"'- December, t'954 with. the local police, Malhout, district Ferozepnr, Punjab.

An enquiry was made by the police in the matter and ultimately the police gave out that Nanak Chand could not be traced.

In the year 1956 a notice was issued in suo moto revision in. regard to the verified claim referred to above, .by the Additional Settlement Commissioner, Delhi. to Nannk Chand, claimant. As Nanak Chand could not and did not appear in compliance with the notice, the. eldest brother of the appellant, namely, Dewan Chand, appeared before the Additinal Settlement Commissioner, Delhi on o.ctober 25, 1956 and altegca that Nanak Chand had 'died leaving behind thre sons, namely, Dewan Chand, Prabhu Dayal and Ashok Kumar (minor) as the only legal heirs of the deceased . •

The learned Additional Settlement Commissioner by his order dated 27th October, .1956 altowed the application for. substitution and directed Dewan Chand, Prabhu Dayal and Ashok Kumar alone . to .be brought 0n the record as legal represrntatives of the deceased Nanak Chand, alth0ugh Nanak Chand had left behind the aforesaid . three sons; three daughters, namely, Satnam' Devi, Laj,,; anti and

Smt. Raj Rani, and h.is widow Smt. Chandan Bai. .

Prabhu Dayal; one of the three sons of Nanak Chand died in 1961 leaving behind his daughter Santosh Kumari. His .widow Smt.

Lajwanti appliedfor being substituted as an heir of the deceased alongwith her minor daughter Sailio; h Kumari. Jn 1904 the mother of the; appetlant also ; ipplied to the Settlement Officer that she and . her three d.aughte.rs may also be substituted as heirs and legal representatives of Nanak Chand deceased regarding payment ofcompel)- ·

sa(ion in re.spec! of the vorified claim They also prayed for cond.o:nation of delay in fi]ing the application for substitution an(! f9r initiating proceedings under s. 9 of the Displaced Persons. '{Compensation aµd Rehabilitation) Act~ 1954. The Settleme11t

SUPR!!ME COURT REPORTS [l 9841 3 S.C.R.

OfficH cocerntd recomtended for condonation of delay in_ hfr report dated 24th March, 1964 to the Regional Settlement Commissioner Rajasthan with the_ delegated powers of Chief Settlement Commis:

sioner, Rajas!han, who by his order dated 6th April, 1964 condoned the delay and directed that the case niay• be processed and finalised accordiiig to rules.

. .,

When the relevant -record was received by the M.O./S.O.

Rajasthau, the appellant's mother alleged that the previous order of substitution of heirs of Nanak Cliand, deceasad, had been obtained by fraud and mis-representation practised by her sous inasmuch as . they did not disclose in their application for substitution the existence of the appellan, t, her mother and si"sters. The M.0.-cumS.O. by his order dated November 16, 1964, dismissed the application of the mother of the appellant on the ground that tho previous order dated 27th Ocfober, _1956 passed by the Addition~! Settlement Commissiner declaring only three sorts of Nanak Chand deceased as his heirs, to the exclusion of deceased's. widow and daughters-was never challeµged by way of an appeal or revision, so the said order had assumed' finality.

He, therefore, declined to interfere and refused to grant redress. The ntbther of the appellant on ' he• own behalf and on behalf of . her three daughters, including the appellant,. filed an appeal in the Court of the Regional Settlement

Commissioner which came up before Shri S.S. Govilla, S.O. with delegated powers of Regionat Settlement Commissioner (Rajasthan) and he by his order dated 22nd December, 1964 C!ismissed the same.

The mother of the appellant undaunted by the failures, filed a revision petition before the Chief Settlement Commissioner, which came up for hearing before Shri D.N. Vohra, Settlement Commis sioner with delegated powers of Chief Settlement Commissioner, and he also took the view that the order dated lg th December,

1954 passed by the Additional Sttlement Commissioner had. become final and he had no jurisdiction to revise or amend the said order, and accordingly he dismissed the revision'. Thereafter the mother moved the Central Government under~. 33 of the Displaced Persons • (CQmpensation and Rehabilitation) Act, 1954 .!Jn. her own ef as well as on behalf of the appellant but the apphcat1on was _d1sm1ssed by the Central Government, Ministry of Rehabilitiation. On 30tb:

August, !96S the appellant als_o filed a revision against the ordet of the Additional Settlement Commissioner before the Chief Settlement Commissioner under. s. 5 of the ;:>isplaced Persons (Supplementary)

. 1 '

' >

"-· .

, • . ,,.l

ilAJ RA!!I v. SETTLEMENT COMMR. (Misra, J.) 767.

Verification of Claims Act, 195~. but this also met with the same A. fate on 25th September, 1965.without affording an opportunity of being heared to the appellant.

The appellant eventu11ly filed a writ petition before the High Court. of Delhi giving rise to the present appeal against the orders dated 25th September, 196}, passed by the Chief Settlement Commissioner, Delhi whereby he CDnfirmed the ord<; r, dated 27th October, 1956 passed by the Additional Settlement. Commissioner, refusing to substitute the appelhnt as legal heir of Nanak 'chand, deceased.

The. writ petition w.is dism'ssed by an order dated 7th January, 1970.

The appellant unsuccessfully filed a letters patent appeal which was dismissed on 29th January, 1970. Feeling aggrieve<l the appellant applied fot a certificat.e under Art. 133 of the Constitution, which waj grnnted. Thi> is how the appellant has come to this Court ..

It_ is cor(tended for the aJ?pe!lant that on 27th October, 1956 she was a minor when the order was. obtained by fraud and misrepresontation by Dewan Chand, without disclosing the names of . other heirs viz. the appel.lant and her mother and two sisters. The

appellant file~ Nvision petitfon under s. 5 of Claims (Supplementary) .

Act (12 of 1954) on 27th of November, 1964 before the learned Chief Settlement Commissioner, who without hearing the appellant an!i without affording her any opportµqity to substantiate her pleas, dismissed the revision petition on 25th September, 1965. This was in Viol.ation of the principles of f)atural justice.

The High Court chose to rely on the deposition ofDewan

Chand, respondent No. 2, to the etfeat that his father had been.

F murdered and he produced a certificate of death before the Chief Settlefrlent Commissioner certifying that Nanak Chand dd one year ten months prior to 25th October, 1956 and this certificate is alleged to have been .given on the applic; ition flied by Dowan Chand before the Prsident of the Municipal Committee, Abohat. The learn.e.d Single Judge ofthe High Court observed that the Additionah • Settlement Commissioner acted rightly in relying upon the cirtificate and substituting the sons of Nanak Chand as heirs of the deceased to his verified claim, on the ground that as Nanak Chand had died , prior tci the enforcement of the Hindu Succession Act his daughters.

ould not be heirs and could not succeed to the property of their father.

Shri Thakur, learned counsel for the appellant strenuously contended that if he had been given an opportunity by the <; hief

Settlement Commissioner he would have been able to produce the. evidence before him. that on the own admission of Dewan Chand: Nanak Chand had dlsappeared sometime in December, 1954 and a report about his disappearance was lodged by Dewan Chand .on 25th December, 1954 with the local police; Malhout, di'stric.t . Ferozeimr and a;, a result of. an enquiry. the police gave out that

Nanak Chand could riot be traced. This evidence could not be . produced before the Chief Settlement Commissioner beause the

 appellant was not lieard, ·

The decision of this case hing~ on the question whether . Nanak Chand had died before or after the enforcement of tJ.e Hindu Succession Act.· If he died before the enforcement of the Hindu Succession Act obviously the daughters could not get any sh&re in the property left by Nanak Chand. If on the_ otlrer hand he died after the enforcement of the Hindu Succession Act, the daughters would be equally entitled to .a share in the property le ff by Nanak

Chnd. In 2.ny case the widow of Nauak Chand would be entitled to a share in the property irrespective of the fact whether Nanak Chand died before or after the Hindu Succession Act. This aspect of the case has been completely lost sight of by the High Court. If Nanak Chand disappeared in December, 1954 on the report of D'wan Chand himself and has nofbeen heard of for seven years by those who would naturally have heard of him if h.e has been alive, there could be raised. a presumption Of death when the quetion arises.. But in the instant case no presumption arises as the question . arose just two years after the date of disappearance.

As regards the actual date of death the High Court dealing with. the death certificate observed as .follows : ·

"A:s an administraiive officer doing quasi-Judicial work, the Additional Settlement Commissioner was entitled to give credence to the death certificate. He was bound only to make a preliminary enquiry as to who were the heirs of.

Nanak Chandc He did not hove to.decide that question finally.

For a preliminary enquiry the death certificate singed by the respectable persons .of the place where the famiiy resided was sufficient. therefore,· the Additional Settlement Commissioner was satisfied that the substitution

.. '

• •

 RAJ !\AN! v. SETTLEMEtlT COMMR. (Misra, J.) 769.

of the sons of NanakChand in place .of th.e deceased would not prejudicially affect his daughter. It was not, therefore, necessary for him to hwe given an oppJrtunity to the daughter of being heard under sub-section (2).of section 5 of •the Displaced . Persons (Claims) Supplementary . Act,

1954."

A certificate given. by cespectable persons, of the place where the deceased once resided, to say the least, is not admissible in evidence. Sec. 35 of the evidence Act provides that an entry in any public or other official book, register, or record, . st1ting a fact , in issue or relevant fact, and.made by a public servant in the discharge

of.his official duty, or by any othor person in performance of a duty specially enjoin'd by the law of.the co1ntry in which such book, register or record is kept, is itself a relevant fact.

In the instant case a certificate by certain respeciable person of the place where the family oncJ re.sided does not satisfy the requirments of s. 35 of the evidence Act. There is n) proof that any statut9ry duty was cast upon the person issuing the certificate to keep a .record of birth and death and therefore, the certificate of death has no evidentiary .value. lt is very easy for a person to obtain death. certificate from the socalled. respectable persons in order to grab .the property. If according to Dewan Chand, Nanak Chand had died he must also indicate where did he die and itis . the place of his death which-will be relevant -and not the place of his birth or residence. The certificate obviously is not of the place where Nanak Chand died. We.are of the view the authorities have gravely '.erred in relying upon the certificate of death which was indmissible

!n ((Vidence,

The High Oiurt repelled thecontcntion raised on behalf of the appellant tht opportunity. should have been given to the appellant

under s. 5 (L) of the Displacd Persons (Claim) Supplemeqtary Act, 1954 merely on the assumption that Nanak Chand had died muc.h before the enforcement of the Hindu Succession Act and, therefore, no. prejudice has been caused to the daughters as they would not be· ari heir._ It is simply begging the question.

Whether daughers would be entitled to an interest in the propert; left by Nanak Chand • will depend upon the. deatli of Nanak Chand before or after the enforcement of Hindu. Succession Act. It .wasan important question, . therefor a, to decide whether Nanak Chand died before th\i enforce .

A ..

• 710

SUPREME COURT REPORTS [1984] 3 S; C.ft.

ment of Hindu Succession Act or not.· For that it was absolutely 'essential that an opportu"ity should h1; e been afforded to the appellant in accordance with the principle of natural justice.

As observed earlier, if ail opportun'ity had been. given w the appellant she would have produced the admission of Dewan Chand that his father Nanak Chand dtsappearcd sometime in December, I J54 and . as a result of an enquiry by the police, no trace of him could be found out.

The finding th'.lt Nanak Ch1nd died before the enforcement of the Hindu Succes>ion. Act, based on the death certificate, cannot be sustained for .a moment as it is based on an inadmissib\e piece of evidence. If that finding is set aside, there is no escape from the conclusion that Nahak Chand died not before but after the enforcement of the Hindu Success.ion A<; j, that is, after 25th October, 1956.

There is no dispute that Nanak Chand died leaving behind . his widow,. three sons and three danghters. Dewan Chand fraud;;. fontly obtained on 'order alleging that Nanak Chand died leaving behind only .three sons. If Nanak Chand died after the enforcement of the. Hindu.

Succession Act, as found ear1ier, .obviously, his widow, three sons and three daughters wold succeed . to his interest in equal shares, which would work out to I/7th. Now the question• arises what was the. interest of Nanak Chand at the ti.ne of his death.

As the prop_erty in question was Mitaksharil coparcenery P'.operty, his interest wonlcf be determined in ace0rdance with the provisions of Explanation I of s. 6 of the Hindu Succession Act, It would be. appropriate at this stage lo read s. 6. insofar as it is material for the purpose Of this case :

"6. When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara copareenery property, his interest in the property, shall devolve by survivorship npon the sntviving

 G members of the coparcenery and not in aceordance with this Act :

Provided that, if the deceased had left him. surviving a . female relative specified in Class I of the Schedule or a male . relative, specified in that class who claims, through such female relative, the interest of the. deceased in the Mitakshara coparcenery property shall devolve by testamentary

• > •

l. .

.\.

RAJ , RANI V. SETTLEMllNT C0M.Md. (Mi; ra, J.) ?1[

or intestate succ; ssion, as the casi may be,. under this Act A and .. not by survivorship.

Explanatio!l' I.-For the purposes of this section,. the interest of a Hindu Mitakshara coparcenery shall be deemed to be the share in th' property that would have been_

allotted to him if a partition of the property had taken place immediately before his death, irrespective of whethr he was entitled lo claim partition or not."

' The interest of Nanak Chand shall bo 'deemed to be the share in the prop,, ty that would han' bem allotted to him if a partition ofthe property had taken place im1mdiately before his death irres pective c;>f wheth'r he wai entitled t_o claim putition or not. In view of Explanation I ofs. 6, Nanak Chand would hwe got I/5th interest on p>ttition between him 11nd h, s ivife and three so1is. If once -the intere>t of Nanak Chand is determined to be I/ 5th before . . hii. death, his itµerast would devolve upon his widow, three sons and three daughters equally and thus the share of each one of them would be 1/5 Xl/7, that is, i/35theach. The. claim of these heirs. cannot be denied merely because some of them have not advanced the claim.

When the questfon of determination of hare among the heirs crops up before the Court, the Court hai to see that.every heir gets his duo.

Shri Itror,1 appearing for the. respond, nts could not successfully meet the point raised on behalf of the appellant.

 For the foregoing discussion the appeal must succeed and it is accordingly allowed atrd the judgment of the High Court as well. as of the authorities below are setjaside and share~ of the lhree sons, three daughters and.the widow are determined as follows: Each of the three sons-1/35; each of the hree daughter;-1/35; the widow- J/35+1/5. As the widow has inherited the interest of her husband after his death her _share would be augmented by 1/5. Therefore, her share would come to 1/35+ l/5.'...8/35.

. In the circumstances of the case we direct the parties to bear their own costs.

H.S.K.

Appeal allowed •

RAJ RANI

CHIEF SETTLEMENT COMMISSIONER DELHI AND ORS

May 3, 1984

AMARENDRA NA TH SEN

R.B .MISRA JJ

S. 35

Dewan Chand

Nanak Chand

Nanak Charid

Dewnn Chand

Nanak Chand.bad

Dewan Cbilnd

NaAak Chand

s 5

Nanak.Chand

Hindu Suctession Act

D.D. Thakur

E.G. Agarwala

V.X. Pcnditia

Charnan Lal

High Court of Delhi

Nanak Chand

Nanak Ch!\lld

Dewan

Nannk Chand

o.ctober 25, 1956

Prabhu Dayal

Ashok Kumar

Satnam' Devi

Laj

Raj Rani

Chandan Bai

Prabhu Dayal

Santosh Kumari

s. 9

Nanak Cliand

S.S. Govilla

22nd December, 1964

D.N. Vohra

Central Government

s. 5

Verification of Claims Act

High Court. of Delhi

Art. 133

s. 5

25th September, 1965

ofDewan

Chand

Dowan Chand

Municipal Committee, Abohat

Hindu Succession Act

Thakur

Hindu Succession Act

Hindu Succession Act

Hindu Succession Act

Nanak

Hindu Succession Act

D'wan Chand

Nanak Chandc

NanakChand

section 5

Sec. 35

s. 35

s. 5

Supplemeqtary Act, 1954

Hindu Succession Act

Hindu Succession Act

Nanak Ch1nd

Nahak Chand

25th October, 1956

Mitaksharil coparcenery P'.operty

s. 6

Hindu Succession Act

s. 6

RANI V. SETTLEMllNT

.\.

RAJ , RANI V. SETTLEMllNT C0M.Md. (