. I

292 • ,

UNION OF INDIA. AND ANOTHER

G.M. KOKTL AND OTHERS

March. 21, 1984

, [V.D. TUL.ZAPURKAR AND R.S. PATHAK JJ.)

Factorles Act, 1948-s. 59..-Benefit of Overti'me wage1 at daub le the rate of ordinary wages-Scape af Section •70 of Bombay Shops and Establishments Act, 1948 extends the benefit under s. 59 of FactoHes Acr to all persons employed in factory irrespective of the fact whether they are workers under

$, 2(1)- of the Factories Act or !tot and

1whethet they are exempted under 1. 64 of Factories -let .read.with rule 100 made by State Government.'

 Bombay Shops & EStablishments Act. 1948S-. 70-ln'erprttation of .

. The respondents who were workingin different capacities ia the factory of India Security Prss at Nasik, an establishment of the apyel lant, filed an application before the . Central Government Labour Court,· Bombay under s. 33 C(2) or the Industrial Disputes Act, 1947 daiming

overtime wages at double th~ ordinary rate of wageS under s. S9 of 'the

Fctories Act read with s. 70, of the Bomay Shops and Establishment.a .Act, 194'8. The Labour Court dismissed the contentions of the appellant and granted relief.

Hence this appeal. ·

Dismissing the Appeal

• ...

HELD : Thecontention that the respondents were not workers with'." in tM meaning of s. 2(1) of the Factories Act and therefore not' entitled to the benefit of s. 59 of that Act read with s ! 10 of the Bombay Shops and Establishments Act 19 48 must fail on the plain language of s. 7.0. "'I'be 'Qlain provision of s. 70 which is,'relevant consists of two parts; the first part states that if there be a factory the Shops and Establishments Act. ill not apply and the second part_ stat_cs. that 10 such a.factory ', the prQvisions of the Factorie.s Act shall, notwithst'anding anything co_nt_alned in that Act,"apply.to airpe.rsons employed _in or in cOtinection with the factory". Clearly, the underlined portion (the nonobstante .clauSe and the ·

pbase- 'au persotis employed') has th-e effect of enlargi, ng the scope of Factories ACt by making it applicable to all persons emPloyed in such factory irrespective of whether employed as worker~ or otherwise.

Therefore although the respondeftts have 11ot been 'workers' within the meaning ofs. 2(1) they will get the benefit of.s. 59. [298 C-F)

)-'. ·.

• B.P. Htra, Works Manager, Central Raillfay, _Pare!, Bombay, etc. y.. ll.

C.M, Pradhan etc .(1960] S.C.R. 137 referred to. . .

H The contention.ttiat by reson of rq\e 100 .inade by the late Govern

' •

UNiON v. G.M. KOKiL

ment under s. ()4 of the Factories Act the benefit qnder s. 59 was not available to the respoildents falling within the cxenJpted category by reason of their holding po.sts of supervision, has no force. [3001' and, 29SE]

It is weH-known, that a non-obstante clause is a legislative device \Vhich is usually employed to give over-riding effect to certain provision over some contrary provision'"'that m3.y be found either . in the same eqactment r some other enactment.; that is to say, to avpid the operation and effect of all contrary provisions. Thus the nonobstante clause in s. 1(), namely, "notwithstanding anything'to the contrary contained in that Act -and as such it must refer to the exempting provisions which would be

contrary to tlie general applicability of .the Act. Jt!St-as because of the non-obstant.e clause the Act is applicable even to employees in the factory , who might not be rworkers' under s. 2(1), the same non-obstaote clause will keep away the applicability of exemption provisions Qua all tbose working in the factory· The Labour Court was therefore right in taking the view that because of the nono15stante clause s 64 read with Rille 100 itself would not. apply i:o the respondents and they would be entitled to-<; laim overtime wages under s. 59 of that Act read with s. 70 of tbe Bombay Shops and Establishments Act, 1948.

[300 C-G]

The contention that the respondents were nOt workmen under the Industrial Dispujcs Act and .as such th.eir application was not Maintain .. able, must be rejected.

The contention depends upon the appreciation of evidence led by th.e partie_~ on the nature of _duties and functions Performed. by the concerned respondents and it Was on an appreciation of the entire material that the Labotir Court recorded a findirig that having regard to the nature of thei'r-duties and functions all respondents, other than tho&e who were holdi_ng the posts of Senior Supervisors and supervisors, were industrial employees, Le •. workmen under.· the Industrial Disputes Act and it is not possible for this Court to interfere with such a finidng of fact recordelf by the Labour Court.

Even othetwise '"after considering some of the important material on record the courr is s:1tisficd that the Labour Court's finding is correct.

(301 C-P]

C!VlL APPELLATE JURISDICTION : Civil Appeal No. 2736 of 1972

 From the Award dated the 31st December, 1971 of the Central Govt. Labour Court Bombay in application no. L.C.B.-32/i of 1969.

Harbans Lal, N. S. Das Bahl and R. N. Podd1r for the appellants. • • V. M. Tarkunde, K. Shivraj Choudharp and K. R. Choudhary for therespondents. ,

Tlie Judment of the Court was delivered by •

l H

294 SUPRllME COURT REPORTS [1984] 3 s.c.R.

. D.

TULZAPURKAR, J .. The only point raised by counsei' for the App'lllants in this appeal is whether the respondents who are employees w9rking in the Factory of India l>ecurity Press, N;; sik are entitled to over-time wages at twice the normal rate of their wages under s. 59. of the Factories Act 1948 read withs. 70 of the . .

Bombay Shops and Establishments Act, 1948 and the question depends upo!l' tlte true construction of s .. 70 of the latter Act.

Since i.n our view the question of proper construction of the said s. 70 is concluded !>Ya decison of this Court 'in Shri B.P. Hira, Works Manager, Central Railway, Pare/, Bombay, etc. v. Shri C.M. Pradhan etc.( l) it is unnecessar}' to indulge in any elaborate statement of facts or discussion of all the rival contentions that were urged before the Central Government Labour Court Bombay, whose decision renliered on December

0 3!, .1971 is challenged in this appeal. • • ·

.Briefly stated t)le admitted facts are : The India Security press, Nasik is a very big establishmen't of the CenJral Govern ment headed by the General ManageP, who is also known as Master, India Security. Press. Apart from administrative offices it has a factory. The Press has four wings, namely,, (a) the stamp press, (b) currency note press, (c) new currency nbte press and (d} central stamp stores. There are various categorie:i' of workers who have been classified into two groups such as(!) employees work ing in the administrative offices and (2) those working in the factor)'. The 78 respondents, belonging .to all the four wings, have been employees working in. the factory (Of these, R' 1 to R-3 are Chieflnspectors (Control); R-4 to R-36 art! Inspectors {Control);.

R37 & R-38 are Senior Supervisors; R39 to R52 are Super visors;' R53 to , R77 are Junior Supervisors and R-78 is a Store Keeper). These 78 Respondents filed an application.against the Appellants before the Central Government Labour Court, Bombay under s. 33C (2) of the. Industrial Disputes Act, 1947 claiming over'time wages under s. 59 of the Facto1ies Act. . read with s. 70 of the Bombay Shops and Establishments Act.

Their case was that though, the normal working period for all those who were working under the roof of the factory was 44 hrs. per week, they were, along with the regular factory workers, required to work for more than 44.hrs. a week but the manage rnent had been causing loss to them by paying them, '.unlike the factory-workers, overtime' wages at the basic rates even for work done beyond 44 hrs. whereas they were entitled to ovHtime waes . . . j, (1960) 1 SCR 137,

• * '

f I

YNION v. a.Iii. KOKIL (Tulzapurkar,

J.) 295

at double the rate of their normal wage{( inclusive of dearness A allowance, etc.), al)d as such they were entitled to get the amount of difference ascertained, computed and paid to them; and they claimed this relief in respect of overtime work done during the past 12 years i.e. from 1-l-i956 to 30-8-1968. Along with the application they gave a detailed schedule and the particulars of their claim totalling to an amount of Rs. 7 ,00,000 and odd.' B

This claim was resisted by the Appellants on several grounds but we need mention only those grounds which have a Dearing on the only point that was raised and argued before us by counsel for the appellants. Inter alia it was contended that none of the Respondents was a 'worker' under s. 2 (I) of the Factories Act and as such they were not entitled to the benefit of s. 59 of that Act read withs. 70 of the Bombay Shops and Establishments At,

1948. It was fUrther contended that even assuming that the respondents were entitled to claim the benefit of the s. 59 read with the s. 70 notwithstanding that none of them was a worker, by reason of Rule 100 nlade by the State Government in exercise of its powers under s .• 64 of the Factories Act, s. 59 became inapplicable to the Respondents and therefore could not be availed of by them inasmuch as quite a substantial number of them fell \tithin . the category of peron who had been "defined or declared to be

holding positions of supervision or management or being employed in a confidential position in the factory." In other words. quite a large number of the Respondents fell within the exempted

catgory under s- 64 road with Rule 100 framed by the State Government and, therefore, the benefit of s. 59 was not available to them. It was fUrther urged that none of the Respondents was an industrial employee, i.e. 'a workman' within the meaning of s. 2 (s) of the Industrial Disputes Act and as such their applica. tion under s. 33C (2) of that Act was not maintainable.

The Central Government Labour Court, Bombay n?gatived the first two contentions in view of the decision of this Court in the case of B.P. Hira v. C.M. Pradhan (supra) and as regards the third contention on an appreciation ofihe oral and documentary evidence led by the parties, it came to the conclusion that all respondents holding the posts of Chief Inspectors (Control) (R 1 to R-3), Inspectors (Control) <R-4 to R-36), Jtinior Supervisors (R-53 to R~57) and Store Keeper (R-78) having regard to the nature of duties and functions performed by them were industrial employees i.e. workmen 'under the Indus.trial Disputes Act, 1947and as such were entitled to the relief claimed by them but as

" G

H '

SUPREM6.COURT REPORTS [1984j 3 S.C.R.

regards th, e respondents who were holding the posts of Senior Snperyisors (R-37 and..R-38) and Supervisors (R-39 to R-5 '.)not being workmen under the lndustrfai Disputes Act were not entitled to the relief claimed,-of course, they were denied the relief only for the period during which they were holding those posts, This decision is challenged in the appeal. ·

As stated earlier, the validity or otherwise f the first two '!< contentions that were urged before the Labour Court and teiterat- • ed before us by Counsel for the., appollants depands upon the • proper construction of s. 70 of the Bombay Shops and Establishments Act, 1948 and in order to appreciate both the contentions it C will be necessary to , set outs. 59, s. 64 together with Rule 100 of the Factories Act and s. JO of the Bombay Shops and Establishments Act, 1948. Sections 59 and 64 occur in Chapter VI of the factories Act, l'H8 and the. material portions thereof run thus :

• "59: Extra. Wages for overtime.-(!) Where a worker works in a factory for more than nine hours in anyday or for more than forty-eight hours irr any week, he shall, in respect of overtime wo1'k, be entitled to\Vages at the rate of twice his ordinary rate of wages."

"'6,4. Power to make exempting rules-(1) The State Government may make rules defining the> persons who hold . positions of supervisions or management or are em ployed in a confidential position in a factory, or empowering the Chjef Inspector to declare any persc.:tt, other than a person de'finea by '6Uch ruJes, as a person holding position of supervision or management or employedin a confidential position in a factory if, in the opinion of , the Chief Inspector, such person holds such position or is sq employed and the provi- .slons of this Chapter, other than provisions of clause (b) of sub-section (1) of section 66 and of the proviso to that su{Jsection, .shall not apply to any person so defined or declared.:

Provided that any person so defined -0r declared shall, where the ordinary rate of wags of such person does not exceed rupees seven hundred and fifty per month, be entitled. to extra wages in respect of overtime work under section 59 .''

Rnle 100 ire.med under s. 64 runs thus !

)---

' .

UNION v. o.M:. KOKIL (Tulzapurkar, J.) , eg'

"Persons defined to hold positions of .supervision or A management or confidential position.

The' following persons shall be deemed to hold position of supervision or management or to be empluyed in a confidential positi<m in a factory-

. {a) All' persons specified in the Schednle annexed hereto.

(b) Any other person who, in the opinion of the Chief Inspector, holds a. position of supervision or management or is employed in .a confidentiatl positiOn.

Schedule

List of persons dfined to hold positions of supervision or managemeµt in factories :-

Manager

. Assistant Manager

·····

Departmental Heads and Assistants

Head Store Keepers and Assistants

Technical Experts."

Section 70 of the Bombay Shops and Establiskments Act: 1948 runs thus :

"70. Persons employed in factory to be governed by .

Factories Act and not by this Act.

Nothing in this Act shall be .deeJ)led 'to apply to a• factory and the provisions' of the Factories Act, 1948 shall, notwithstanding anything c9ntained in that Act, apply to all persons employed in and in connection with a factory :

Provided t!iat, where any shop or commercial establish

.. 298

 f, __ A

. - . -

, , . . ( - - .

SUPREME COURT REPORTS . [19~4) 3 s.c. k.

. ment situate within the precincts of a factory is not /

connected with the manufacturing process of the factory the provisions of this Act shall apply to it; · ,· . ' \ . .

Provideforther that, the State Government ay, by notification in the Official Gazette, apply all or any of the provisions of the Factories Act, 1948 to any shop , or. com- mercial establishment situate within the precincts of a 'factory and on the application .Of that Act to such shop or commercial establishment, the provisions' of this Act shall cease to apply to it." . ·

' ' ' Counsel for the appellants urg.ed that the respondents, though employed in the factory of the Press, were not 'workers'. within . the meaning of s. 2 (I) of the Factories Act and therefore were not entitled to the benefit ors. 59 of that Act read with s. 70. of the Bombay Shops and Establishments Act, 1948. On the plain language of sec. 7.0 of the Bombaf Shops and Establishments Act . this contention has to fail. W~ are concerned not with either of ·: the provisos but with the ma.in provision of s. 70 which consists of two parts; the first part states that if there be a factory the Shops . and Establishments 'Act will not apply and the second part states: that to such a factory "the provisions of the Factories Act shall,

notv/itstanding anything contained in that Act, apply to ali persons employed in or .in connection with a factory." Clearly, the portion "underlined (the 'non-obstante clame and the phrase 'all persons employed') has . the . effect of enlarging the scope of.

Factories Act by making it applicable to all persons employed in . such factory irrespective of whether employed as workers or otherwise. Therefore although the respondents have not been 'workers' within the meaning of sec. 2 (l) they will get.the benefit

' . ' of sec. 59:

- This' idetical question arose for consideration before this Co;; rt in the case of B.P. Hira v. C.M. Pradhan (supra). In that .case Shri C.M. Pradhan and other respondents were emplgyed. as

time-keepers in the time. office of.the Central Railway. Workshop and Factory, Pare!, Bombay and they had claimed over-time wages. under s.59 of the Factories Act first on the basis that they were 'workers' within the meaning of s 2(1) of that Act and alternatively on the basis that assuming, they were not 'workers' within the meaning of s. 2{1) of thai Act, they were. entitled to claim over-' time wages nnder s.59 of the Factories Act read with . s. 70 of. the Bombay Shops and Establishments Act, 1948. The validity of the

' •

' '

.. '

. tl'NJON v. G.M. KOKIL (Tulzapurkar, j_) 299.

. ( . , ' claim on hih th•, groun,.;> was di; puted by the appellant (Works Manageij .. The Authority under the Payment of Wages Act.found that only four of the responc!ents, who were required to do the . work of progress time-keeper, could claim the status of 'workers' within the meaning of s. 2( l) _of the Factories Act and the rest were merely employees ofthe workshop, but accepted. the alter-· native . case made by the respondents and held that each of the respondents was entitled to get the over-time wages under sec. 59 read with sec. 70 and this Court upheld the view of the Authority and confirmed its decision. The Court's view on the proper con1truction ofs. iO of the Bombay Shops and. Establishments Act 1948 has been succinctly snmmatised in the second head note, which appears at page 137 of the report, which runs thus:·

"On a propr construction of s. 70 of t!le Act it is ciear that the first part of the section excludes a factory and its_ . . employees from the operation of the Act; but the second part

makes the relevant provisions' of the FactoriesActapplicable ., to them. The'non-obstante. clause in the section shows that .· the employees.Jn a factory, , although they might not be workers within the meaning of s. 2( I) of the Factories Act, are entitled to claim overtime wages as provided for by that Act." ' . . .

A pari from the fact that the decision is binding on us, we are in respectful agreement with the construction placed by it on s. 70 of the Act. , The first contention , has, therefore, to.be rejected.

Counsel for the appellants next urged that the effecc of s. 70 as indicated bY .. the aforesaid decision is that it.makes the provisions . of the Factories-Act applicable to all persons (irrespective of their. capacity)' employed in a factory but· the provisions of the Act includes. 64 (oc_curring. in the same Chapter VI) whic.h gives . power to the State m:ivernment to make exemptions and it is under s. 64 that Rule 100 has been framed by the State Govt. under which the employees specified in the .Schedule to the Rule . . have been excfoded from the purview of s. 59 of that Act and since in the instant case a substantial number of the respondents fall within the exempted category (Departmen.tal Heads .and Assistants) and Head Storekeepers and Assistant they .would not be able to claim overtime wages under s. 59 of that Act read with s, 70 of the Bombay Shops and Establish' ments Act.· In other words, counsel contended . that. s.: 59 must be read· with s. 64 of the Factories Act and because of Rule 100 framed under s. 64, ~· 59 becomes inapplicable to the respondent~ •

A ..

G .

SUPREME COURT REPORTS

[1984] 3 S.C.R.

falling within the exempted categorles. On the other hand, counsel for the respondents urged that the non-obstante clause has the effect of keeping out of the way the exemption provisions, namly, s. 64 read wih Rule 100 and accord.ing to him such effect must follow from the ratio of this' Court's decision in the case of B.P.

Hira v. C.M. Pradhan (sup{a) and the Labpur Court had rightly taken the view that because of the non-obstante clause the respon .. dents' right to claim benefit of overtime wages under s. 59 read with s. 70 was not affected by t.he framing of rule 100 by the State

Government in exercise of the power conforred on it under s. 64.

Section 70, so far as is relevant, says "the provisions of the Factories Act shall, Mtithstanding anything contained in that Act, apply to all persons employed in and in connection with a factory". It is well: known that a non-obstante .clause is a legislative device which is usually employed to give over-riding effect to certain provisions over some contrary. provisions that may be found either in the same enactment or some other enactmen i, that is to say, to avoid the operation and effect of all contrary provisions. Tilus the non-obstante clause in s. 70, namely, "notwith- ·

standing anythi.ng in that Act'' must mean notwithstauding anything to the contrary contained in that Act and as such it must refer to the exempting provisions which would be contrary to the . general applicability of the Act. In other words, as all the relevant

proviSions of the Act are made applicable to a factory notwith, standi)lg anything to the contrary contained in it, it must have the effect of excfoding th1 operation of the exemption provisions.

Just as because of the non-obstante clause the Act is applicable even to employees in the factory wo might not be 'workers' under sec. 2(l), the sime non-obstante clause Will keep away the applicability of exemption provisions qua all those working in the factory. The Labour Court, in our View, was, therefore, right in taking the view that because of the non-obstante clause s. 64 read with Rule 100 itslf would not apply to the respondsnts and ihey would be entitled to claim overtime wages under s. 59 of that Act

rad withs. 70.of the Bombay Shops and Establishments Act, 1948.

Counsel for the appellants pointed out that if such construC>- tion was placed on s. 70 if will lead to an anomalous situation that . even employees of a factory occupying positions of a Manager or a General Manager would become entitled to overiime wages which cnuld not have been the intention of the State Legislature, bu~ that, in our view, is a i; natter of the State Legisla ture and not for th11 Court bnt it must be pointed out that . since

'-(

UNION v. G.M. KOKILj (Tulzapurkar, J.) 301

the rendering oi the aforesaid decision by this Court in 1%0 the A State Legislature has .not intervened, which perhaps suggests that the State Legislature is not keen to limit the operation of the no11obstante clause in any manner. The second contention must also fail.

Counsel for the appellants made a feeble attempt to contend that not merely such of the respondents who were holding the . posts of Senior Supervisors and Suparvisors were not industrial employees but all the other responde]Jts were also not industrial employees i.e. were not workmen under the Industrial Disputes Act. In the first place; the contention depends upon the apprecia- . tion of evidence led . by the parties on (he nature 'Of duties and functions performed by the concerned respondents and it was on an appreciation the entire material that the .Labour Court recorded a finding that having regard to the nature of their duties and functions all respondents, other tha~ those who were holdJng the post of Senior Supervisors and Supervisors, were industrial employees, i.e. workmen under the)ndustrial Disputes Act and it is not possible for this Court to interfere with such a finding of fact recorded by the Labour"Court. Even otherwise after considreing

some of the important material on record through which we were . taken by counsel for the appellants, we are satisfied that the

Labour Court's finding is correct.

In the result the appeal fails and is dismissed but there will be no order as to costs. ·

H.S.K. Appeal, dismissed •

. E

UNION OF INDIA. AND ANOTHER

G.M. KOKTL AND OTHERS

R.S. PATHAK JJ.

Factorles Act, 1948

s. 59

s. 59

Factories Act

s. 33

Industrial Disputes Act, 1947

s. 70

s. 2(1)

Factories Act

s. 59

s. 7

s. 70

Factories ACt

s. 59

B.P. Htra

Factories Act

s. 59

s. 1()

s. 2(1)

s 64

s. 59

s. 70

Industrial Disputes Act

Harbans Lal

N. S. Das Bahl

R. N. Podd1r

V. M. Tarkunde

K. Shivraj Choudharp

K. R. Choudhary

D.

TULZAPURKAR

s. 59

Factories Act 1948

s. 70

Central Government Labour Court Bombay

India Security press, Nasik

Central Government Labour Court, Bombay

s. 33C

Industrial Disputes Act, 1947

s. 59

s. 70

(1960) 1 SCR 137

s. 2

Factories Act

s. 59

s. 59

s. 70

Factories Act

s. 59

s. 59

s. 2

Industrial Disputes Act

s. 33C

Disputes Act, 1947

s. 70

s. 64

Factories Act

Sections 59 and 64

Chapter VI of the factories Act

section 66

section 59

s. 64

Tulzapurkar

Schedule

L

Section 70

Factories Act and not by this Act

Factories Act, 1948

Factories Act, 1948

s. 2

Factories Act

s. 70

sec. 7

s. 70

Factories Act

Factories Act

sec. 2

sec. 59

C.M. Pradhan

Factories Act

s 2(1)

s. 2

Factories Act

s. 70

Payment of Wages Act

s. 2( l)

Factories Act

sec. 59

sec. 70

Establishments Act 1948

s. 70

s. 2( I)

Factories Act

s. 70

s. 70

s. 64

s. 59

s. 59

s. 64

Factories Act

s. 64

s. 64

Labpur Court

s. 59

s. 70

s. 64

Section 70

Factories Act

s. 70

sec. 2(l)

s. 64

s. 59

s. 70

Industrial Disputes Act


, .. B

ARJUN CHAUBEY

v. '

UNION OF INDIA AND OTHERS

March 23, 1984

(Y.V. CHANDRACHUD, .C.J., V.D. TULZAPURKAR, R.S. PA1HAK, ·

'D.P. MADON AND M.P. THAKKf\R, JJ.J

Service Jurisprudence-Dismissal Order passed by the competent authority '-

dspensing with an enquiry under Rule I4(ii) of'tht R(li/way- Servants (Discipline and Appeal) Rafe., 1968 read with Proviso (b) to Article 311(2) of te Corutitution -Majority of charges of appellant's mlsconduct are in relation to competent authority who dismissed him-Doctrine 0fbias-Accusser cann'ot hf! a judge ofhiS own cause-NatuYa! Justice, Principles, violated.

The appellant was working as a senior clerk in the office of the cbiCf Com- . mercial Superintendent. 'Northern Railwa;, Vaanasi. On May 22, 198~, the ,.Caior Commercial Officer wrote a letter to him calling up.on him to offer his

expJanatic;>n i'n fegard to tWelve ch&rges of gross indiscipline, mos; Jy rel; lting to the Deputy Chief Commercial Superintendent. The appellant submitted his explanation to the charges by his reply dated June 9, 1982. On the very next day, the Deputy Chief Commercial Superintendent served a second_ notice upon the appellant saying that the exPlanation offered by -him was not convincing but t'hat another chance was being given to him tq offer his' ep{anationregardi1g the spetjfic charges which were conveyed to him earlir. By this letter, the appellant was als9 caned up_on to submit his explanation within three days' as to why l}eter, rent disCiplinary action should not be t{lken against him. The appellant subrilitted his further explanation on June 14;1982. but on the very next d_ay, the Deputy Chief Commercial Superintendent passed an order dismissing him fiom service on the ground that he was not fit to be retained in service.

The appellant filed a writ petition in the High Court of Allahabad challenging the order of dismissal on variqus grounds. The .writ petition was-dismissed and hence the appeal special leave of the Court.

Allowing the appeal, the Court.

HELD : I : J. The order of dismissal passed against the appellant siands vitiated for the simple reson that the issue as to who, betwun the ap(>ellant and Respondent No. 3 (the dismissing authority) was speitking the truth was

dided by Respondent No. 3. The main thrust of the charges against the appel- . lant related to his conduct 'Illa Respondent '3. Therefore, it was not open to the

18.uer tO sit in Judgment over. the eXplanation offered by the appelJant and, decided that the explanation was untrue. No person can be a judge in his own

• '

ARJUN CHA UllEY V, UNIOl-l 303

cause and no witness can certify thttt his oWn tCstimony is true~ Any one who A has a pers6na1 stake in an .enquiry must keep himself aloof from the conduct of thejnquiry. [306 F-Hl

I : 2. On the facts of tho case, the illegality touching the proceedings which endetl in th~ dismissal of the appellant is, "so patent apd loudly obtrllsive that it leaves an indelible stamp of infirmity" on the decision of Respondent No. 3.

[307 B-C]

 B

• 2. From the-charges 2 to 7 and ll; it is obvious that if an enqiry were to be held into the charges framed against the appellant. the principal witness fen: the Department would have been Responden~ No. 3 (the dismisSing authority) himself as the main accuser and-the target of aP!iellant's misconduct. Surprisingly, the explanation dated June 9, 1982 of the appellant to the letter of accusation dated May 22, 1982 was considered on its merit~ by Respondent himself. Thereby, the accuser beame the Judge. [305 G-H, 306 Al

Not O!flY that, the further explanation submitted by the appeJlant was consi'.' dered by Respondent No. 3 himself. The order of dismissal dated-June 15", 1962 which was issued by Respondent No. 3 recites that he was fully . satisfied that it was not •easonabiy practicable to hold an inquiry into the appellant's conduct as provided by the Rules and that he had oome to the conclusion that the appellant was not fit to be"retained in service and had, therefore,· to be dismissed, Evidently, Respondent 3 assessed the weight of his own accusation~ againSt the appellant and Passed a jUdgent 'Y}lich is one of. the ea; iest to pass-~ namely~ that be himself was truthful person and the appellant a liar. In ding this, Respondent No. 3 violaed a fundamental principle or natural justice.

[305 B-C, 306 Fl

The State of U.P. v. Moltammad Nooh (1958) SCR ~95, referred to.

3, The contention that inspite of the -above legal po&ition, the appellant does not deserve the assiStanco of the court, since he was habitually guilty of acts subversive of discipline cannot be accepted. In the first place, to bold the appellant guilty of habitual acts of indiscipline is to assume something which

remain' unproved, Secondly, the illegaJity from which the order of dismissal Pl!Sfd by Respondent No. 3 suffers is of a character so grave and fundamental that the alleged habitual misbehiA-iour on the part of the appellant cannot cure . or condone it.

[301 CB]

4. The avio<; l needless complications in working out the mutual rights and obligations of the parties, the court directed :

(i) The appellant who is due to retire from service shall be treated as having retired from service with effect from April 1, 1984 ; .

(ii) He shall be paid arrears of salary due uhtil March 31, 1984 on the basis of salary last drkwn by him on June 15, 1982 without taking into

H account the increments which he might have earned subsequent to Ii\•\ . \l•t•: . . . .

. (iii)

/ The Provident Fund and gratuity sHall also be paid to the appellant as calculated in accordance with the rules, as if-no order'.or dismissal was passed against him; and '

(iv) he ma)' not and shall nof rejoin his duties and he will Ill' treated as OD leave between 23rd March, 1984 and 31st March, 1984.

)307 F-H, 308 A-Bl

CIVIL APPELLATE JURISDICTION : CivH Appeal No. 2613 of '-1: 1983. ~

From the Judgment and Order dated 19-11-82 of Allahabad High Court in Civil Misc. Writ No. 8287 ofJ982.

R..K. Garg, S.N. Singh and J).K. Garg, for the appellant. .

P.R. Mridul, Miss A. Subhashini, R.N., Poddar, C. V, Subba Rao :.:· and A.K, Ganguli for the respondents. .,..

The judgment of the ourt was. deliverd by

CHANDRACHl)D, C.J. The appellant was working as a senior clerk in ; tirn office of the Chief Commercial Superintendent, Northern .Railway, Varanasi. On May 22, 1982 the Senior Commercial Officer wrote a letter to him, calling upon him to offer his explanation in regard to 12 charges of gross indiscipline. The appellant submitted his explanation to the charges by bis reply .dated June 9, 1982. . . .

On the very next day, the Deputy Chief Commercial Superintendent served a second notice upon the appellant, saying that the explanation ottered by him was not convincing but that another chance was being given to him to offer his explanation regarding the specific charges which were conveyed to him by' the letter of May 22, 1982.

By this letter, the appellant was also cklled upon to submit hi!!' explanation within three days as to why deterrent disciplinary action should not be taken against him. The appellant submitted bis further explanation on June 1.4, 1982, but on the very next day; the Deputy Chief Commercial Superintendent' passed an order dismissing him from service on the ground that he was not fit to be retained in service. ·

 The appellant filed a writ' petition in the High Court of H Allahabad challenging the order of dismissal on various grounds.

The Union of India, the. Senior Commercial Officer and the Deputy

Chief Commercial Superintendent were impleaded to !hat petition

ARJUN CHAUBEY v. UN!ON (Chandrachud, C.J.) 305

as Respondents 1 to 3. That writ petition having been dismissed by A the High Conrt, the appellant has filed .this appear by. special leave. . . .

The order dismissing the appellant from service .was passed by Respondent 3 under Ru.le 14(ii) of the .Railway Servants (Discipline and Appeal) Rules, 1968 read with Proviso (b) to rticle 311(2) 9f B the Constitution. Respondent 3 recorded his reasons in writing for coming to the conclusion that it was not reasonably practicable to hold an inquiry into . the conduct of the appellant in the manner provided by the relevant rnles, and thereafter, he proceeded.to pass . .. the or<ler of dismissal without holding any inquiry.

Quite some time was taken by the appellant's counsel in-arguing upon the true meaning and intendment of the Disciplin~ and Appeal Ru\es, 1968 and in urging that the appellant should have

been affordetl an opportunity of being heard on the question as to whether, it was or was not reasonably practicable to hold an in, quiry. into the charges levelled against him. It was also urged by the learn-

D. ed counsel that the fact that it was not reasonably practicable to 1

hold a full-fledged inquiry as. contemplated by the Rules, did:not justify. the non-holdirig of any inquiry at alL We do not propose to enter into the merits of these contentions since, the appellant is entitled .to succeed on another ground.

The Jetter dated May 22, 1982 which contains accusations of gross misconduct against the appellant enumerates 12 charges, out . of which Charges Nos. 2 to 7 and JI refer to the appellant's misconduct In relation to Respondent 3. For exampfo, the second charge alleges that. the appellant entered the office of Respondent 3 and challenged him in an offensive and derogatory language. Charge No. 3 says .that the appellant was in the habit of forcing himself on }lespondent 3 two or three times every day with petty' complaints.

Charge No. 4 alleges that the appellant stormed into the office of Respondent 3 and shouted at him, using foul words. Charges 5, 6 and 7 contain similar allegations. The allegation contained in Charge No. 11 is to the effect that behaving as a leader of goondas, the appellant hired the services of other goondas and created security problems for Respondent 3 and the members ot his family. It is obvious that if an inquiry were to be held into the charges framed against the appellant, the principal witness for the Department would have been Respondent 3 himself as the main accuser and the target of appellant's roisconuct. It is surprising in \his context that tb~ . ' '

expl.anation dated June 9, 1982 which was furnished by the appellant to the letter of accusation dated May 22, .. 1982 was considered on its merits by . Respondent 3 himself. Thereby, the accuser beame the judge. The letter writt; n to the appellant by Respondent 3. on June 10,. 1982 says :· : .

"I have carefully gone through your defence explanation dated 9.6.82 to the charges given in this office Jetter of even No. dated 22.S.82 and the same i? not convincing at all.

Befqre taking any actipn under D. & A.R., I would like io offer you another chance for giving your explaniations to the specific charges conveyed to you vide this ojjlce letter dated 22:5.82. . .

Please submit your days as to .why a deterrent taken against you".

defence . explanation within three disciplinary action should•not be •

:rhe appellant submjtted his further explanation, V.:hieh also ~Q6 . considered by Respondent 3 himself. . .

The order of dillmissal dated June 15, 1982 which was issued by Respondent 3 recites that he was fully satisfied that it was:not reasonably praeticable to hold an inquiry into the appellant's conduct as provided bytlje Rule~ and that he had come to the conclusion that the appellant was not fit to be retained in service. and had, therefore, to be dismissec\. Evi.dently, Respondent 3 assessed.the weight of his own accusations against the , appellal)t and pas5ed a judgment which is one of the easiest to pass, namely, that he.himself was a trut11ful person and the appellant a liar. In doing , th~; Respondent 3 violated a fundamental principle of naturaLjustice.

The main thrust of the charges against the appellant related .to his conduct qua Respondent 3. Therefore, it was not open to t]le . latter to sit in judgment over the explanation offered. by the appel~ !ant and decide that the explanation was untrue. No person can be a judge in his own cause and no witµess can certify that hfs own testimony is true. Any one who has a personal .stake in, an lnquiy must keep himself aloof from the conduct of the : inqniry.

The order of dismissal passed against the appellant stands

vitillte~ for tile simple rea!ll:m th<it the issue as to who, between th

~ ..

AJRUN CHAUBEY ~· UNION (Chandrachud, C.J.) 307

"· appellant and Respondent 3; was speaking the truth was decided by A Respondent 3 himself.

In The State of U11ar Pradesh v. Mohammad Nooh,1 S.R. Das, C.J., observed, while. speaking for the majority, that the roles of a judge and a witness cannot.be played by Dne and the same person .. and that t is futile to expect, when those roles are combined, thatthe It. judge can hold the scales of justice e\'en .. We may borrow the lang-

>i uge of Das, C.J., and record a finding on the facts of the case be- .{ fore us that the illegality touching the proceedings whiclr ended in the dismissal of the appellant is "so patent and loudly obtrusive that it leaves an io, delible stamp of infirmity" on the decision of Respondent3. . C

Mr. Mridul, appearing on lie half of the respondent, contended that though this may be the true le.gal position, .the appellant does not deserve the assistance of the Court since, he was habitually guilty of acts subversive• of discipline. This argument does not im- D press us.·

In the first place, to' hold tli.e appellant gui'Jity of habitual acts of indiscipline is to assume something which remains unproved . . $econdly, the illegality.from which the order of dismissal passed by

Respondent- 3 suffers is of a character so grave and fundamental that the alleged habitual misbehivfour on the part of the appellant cannot cure or condone it. ·

In the result, we allow the appeal and set aside the judgment of the High Court. The order dated June 15, 1982 whereby the appellant was dlsinissed from service is set aside. In order, however, to avoid needless complications ' in working out the mutual rights. and obligations of the parties, we direct that the appellant, who is . due to retire within about six months, shall betreated as having retired from service with effect from April 1. 1984. He shall be paid the arrears of his salary due until March 31, 1984, on the basis of the salacy lasCdrawn by him on June 15, 1982, without taking itito account the increments which he might have earned subsequent to that date. The provident fund and gratuity shall also be paid to the appellant as calculated in accordance with the' rules, as if no order of dismissal w:ts passed against him.

The appellant may

(I) [1958] SCR 595, 609 . . ,

. not and shall not rejoin his .duties. He will be treated as on leave between.now and March 31, 1984.

The arrears of salary untilMarch 31, 1984 shall be paid to the appellant on the basis indicated above, on ot befoe that date and, in ariy event, not later than May I, 1984. The provident fund and gratuity shall be paid to him within a period of two months from today.. . y

Mr. Garg made a statement before us on behalf of his client, the appellant, that the appellant is neithi!'r in ocuption of any official residential accommodation, rior is.he. in possession of the garage which. is referred to in Ch; rge No. 6 in the letter of May 22,.

1982, .

The appeal \viii stand disposed of in terms of the above order. llespondent I, the Union of I.ndia, shall pay .to .the appellant a sum j of Rs. l; OOOf (Rupees one thousand) as .his costs.

• S.R.

Appeal allowed.

~ .

. h • .,

. '

B

ARJUN CHAUBEY

UNION OF INDIA AND OTHERS

Y.V. CHANDRACHUD

V.D. TULZAPURKAR

D.P. MADON

Article 311(2)

May 22, 198~

June 14;1982.

High Court of Allahabad

ARJUN CHA UllEY V

June 9, 1982

May 22, 1982

CIVIL APPELLATE JURISDICTION

Allahabad High Court

R..K. Garg

S.N. Singh

J).K. Garg

P.R. Mridul

A. Subhashini

Poddar,

C. V

Subba Rao

A.K, Ganguli

CHANDRACHl)D

June 1.4, 1982

High Court of H Allahabad

Union of India

AJRUN CHAUBEY

Chandrachud

S.R. Das

Dne

Das

judge can hold the scales of justice e\'en .. We may borrow the lang-
i uge of Das, C.J., and record a finding on the facts of the case be- .{

Mridul

April 1. 1984

March 31, 1984

June 15, 1982

May I, 1984

Garg


30!1

BIHARI CHOWDHARY.& ANR.

STAT, E OF BIHAR & ORS ..

March 26, 1984

(A.P. SEN AND V. BALAKRISHNA ERADI,. H.)

Code of Civil Procedu; e 1908, Section 80;

 Suit against gvernment-lnstitutiorr afttr expiry of statutory period of two ft!Onths after 'notice has been delivere, d~NeCessity of.

Interpretation of Statl; tes.

Language of statute clear and unambiguous-Duty. of court to give effecrto

D . statute ntwithstanding hardship liktly to be Caused: . ·,

The appellants-plaintiffs instituted a suit for deClaration of titIO and delivery of possession of immovable properties. The first fespondent was thC State -Oovernment. Prior to the institution of te suit the plaintiffs, had issued notice to the 1st respondent under section 80 CPC, but Without waiting for the.statutory period of two months to expire, the plaintiffs instituted the suit. Jn the written '. . statement filed on behalf of the State it was-contended that the suit was not QJaintainable for want of proper notice under section 80 CPC. The Trial court >Upheld the contention and dismissed the suit. The order was confirmed by the lirst appellate .court and the second appeal preferred by the. appellants to the High Court was dismissed in Iimine. .

'Dismissing the appeal to this Court',

HELD: 1. A suit against the Govrnment or a public officer, to which the requirement .of a_ prior notice .. under section 80 CPC iS attracted, cannot be validly instituted until the expiration of ihe period of two , months next after the 'notice in writing has beep delivered to the authorities concerned in the manner

prescribed in the said section and if filed before the expiry of the said period, the suit has to ]Je dismissed as not maintainabl~. [314 ABl ·

2. The effect of section 80 CPC prior to its amendment by Act 104 of 1976 .js clearly to iinpose a bar against the institution of a s"Uit tlgainst the Govern,

mentor a public officer in respect 6f any act purported to be done by him in his Offidal capat.ity until the expiration .or two months after notice has been deli .. .ered. There is clearly a public purpose underlying this manda.tory provision. [312 C, Hi.

310 SUPRtMBCOURT REPORTS

[1984] 3 S.C.R.'

3. The examination of the scheme-of the Section reveals that the section has; been enaeted as a measure . of public policy "'.ith. the object "' ensuring that

'":re a suit is-,, instituted against .-the &vermnent Or a '.public _officer, th~ Government or the officer concerned is afforded an opportunity to scrutinise_ thercl3.im in respect of which the suit_ is proposed to be filed and if it-be fouDd to be~

3.justclaim, to take immCdiate 13ction and thereby avoid unnecessary Iitigatibn1 and save public time and. money by settling the claim without driViog the~ pfrsOn wbo issued the notice, to institµte the :.uit . involving considerable expenditure and delay. [312 El ·

4. When the language used in the Statute iS clea-r_ and una_mbi_guous, it is.~ the p}au'.i duty of._the COurt to give effect tC? it and considerations of hardship .. wnl not be a legitimate ground for not faithfully implementing the mandate or

C the legislMure. [313 B]

Jj'

. " Bhagchand Dagadusa v. Secretary of .. Statefor India, 54 IA 338 ; .Velfayan v: Madras Province,· 74 Irtd!an Appeals 223; and SawaL?inghai Nirmal Chondv~ Union of Jndia [1966] 1 S.~.R. 956 referred to.

Nani Amma Nanninl Amnfa 'v . .State of Kerdla AIR 1963 Kerala 114,. -overruled.

C!VrL APPELLATE JURISQICTION : Civil Appeal.Np. 1048 of. 1979 .

. From the Judgment and Order dated 15. 12. 1978 of Patna. lligh Court in Second Appeal No. 215 of 1978

'' '

• L.N. Sinha, B.P. Singh, Ranjit Kumar a11d Ravi Prakash for the' appeallants.

D.Goburefhan for the respondents.·

The Judgment of the Com; t was delivered by . ' • BALAKRISHNA ERADI J. The s]1ort question that arsies foP, c, onsideration in this appeal by special leave concerns the true scope, and application of.Section 80 of the Civil Procedure Code.

'The appellants. herin ar~ the plaintiffs in a. suit instituted in t)le i\iunsiff's Court, Bihar S'harif, seeking the reliefs of dedaration of title and deliver¥ of possession with mesne profits in respect ot:. the properties descdbed in the plaint. The State of Bihar-the 1st respondent herein is the main defendant in the suit. Prior to the institution of the suit, the plah1tiffs had issued a uotice to the 1st

-)';: ' ...

)',

B. CHOWDHARY v. Bll!AR (V.B. Eradi, J.) 311

vespondent-State_:...under section 80 C.P.C. on 18.2.1969 and Exhit>it 2 is a copy ofthe said notice.

However; without waiting for othe statutory period of two >n.ths, the plaintiffs instituted the.suit

-0n 2.4.1969.

In the written statement filed on behalf of the State. of Bihar, it was contended.; inter a!ia, that the suit was not maintainble for want of proper notice under Section 80 C.P.C .. This contentiOn was uphelJ by the trial court which also recorded findings against the pblntiff; on the remaining issues concerning the title to the property and their erititlemwt to reliefs of declaration. :.and delivery of p'3session. The first appellate. court to which the ·.matter was ca.rried. in appral by 'the plaintiffs dismissed the appeal -on the ground that the plaintiffs' suit was not maintainable inasmuch as due .notice under Section 80 C.P.C. liad not been given. A , gecond appeal preferred by the appellants to the High Court at

Patna did not meet with any success and it was dismissed in limine, .Hence this appeal by the plaintiffs.

We are concerned 'in this case with Section 80 C.P.C. as it D cStood prior to its amendment, by Act 104 of 1976 (Even under the .

.amended provisiop, the position remains unaltered insofar as a suit of this nature is concerned). We s.hall extract the Section as it .stood at the matcr.ial ti me :

"so: No suit shall be instituted against the Government (inclu(ling the Government of the State of Jammu and Kashmir) or against a public officer .in respect of any act

• lil

 purportingto be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been dtlivered to, or left at the office offa) in the cas.e-of a suit against the Central Government, except where it relates to a railway, a :Secretary to that Gover~_ment ;

((b)' in the case of a suit against the Central Govern'

ment where it relates to a railway, the General Mana_ger of thatrailway ;

' {(c) in the (:ase of a suit against the Government of the Sate ofJammu and Kashmir, the Secre- 1at"y , to 'that Governme11t or any other officer authorised by that Government in this behalf;

• •

3.H SUPRE}.!E CQUl\T. REPORTS

(1984} 3 ~.C.R.

(d) in. the case of a suit against any-0ther Govern,

. inent,. a Secretary to that Government or the

Collector of the district ; '

*' * *

and, in t4e case of a public offlcer, delivered to him or lfet at liis office, stating the cause of action, the nami:, description and place of residence of the plaintiff and relief wl1ich be claims ; and plaint shall contai\1 a statement that such notice bas been so delivered ot left."

The effect of the Section is clearly to impose a bar against the institution of a. suit against the Government or a public officer in respect of any act purported to be dohe by him in his official capa- . city until the expiration of two months after. otice in writing has

.been delivered to or left.at the office of the Secretary to Government or Collector of the poncerned district and' in the case of a public officer delivered to him or left at his office, stating the particulars enumerated in the last part of sub-section (I) of the Section. When we examine the' sch. eme" of.the Section it becomes • . . obvious .that the Section has been enacted as a measure of public . ' .policy with the object of ensuring that before a suit is instituted against the Government or a public officer, the Government 6r the . officer concerned is afforded an opportunity to scrutinise the claim in respect of which the suit is proposed to be filed .and if it be . . . found to be a just claim, to take immediate action and thereby

avoid unnecessary litigation and save public time and money by settling the claim. wi.thout driving the person, _who has issued the 11otice, to institute the suit involving considerable expenditure and delay. The Government, unlike private parties, is expected to consider tlte matter, covered by the n.otice in a most objective manner, after obtaining such legal advice as they may think fit, and take a decision in public inierest within the period of . two months allowed by the Section as to whether the claim is just and reasonable and the contemplated suit should, . t!<ereforc, be avoided by speedy negotiations a:nd settlement.or whether the claim shouJ.d be 1esisted by fighting out the suit if and when it is instituted. There, is' clearly a. public purpose underlying. the mandatory provision o<intained in the Section insisting on the issuance of a notice setting eat the particulars or the , proposed suit. and giving two months' tillle to Government, or a public officer before a suit can be insti-.

. .

'(._ .

; .

B. CHOWDHARY v. BIHAR (V.B. EraJi, J.) .313

tuted' against them. T!)e object of the Section is the advancement

of justice and the securing of public good by avoidance of un- . necessary litigation.

When the language used in the.Statute is clear and unambiguous, if is the plain duty of tlie 'Court to give effect to it ahd considerations of liardship will. not be a legitimate ground for not faithfully implementing the mandate of the legisiature:

The Judici .. al Committee of the Privy Council had occ.asion to consider the scope and. effect of Section 80 C.P.C. in an almost similar situation in Bhagchand Dagadusa and ors. v. Secretary of C- State for India in Council & Ors. l1) In that case, though a notice had been issued by the plaintiffs under Section 'so C.P.C. on 26th June 1922, the suit was insitituted before the expiry of the period of two montl1s from the said date. It was contended before the Privy Concil, relying on some early decisions o_f High Court of Bombay, that because one of t.he rlicfs claimed in the .suit was the grant of a perpetual injunction and the claim for the said relief would have become infrucluous if the plaintiffs were to wait for the statutory period of two months • prescribed in Section 80 C.P:C. before they filed the suit, the rigour of the Section should be relaxed by implication of a suita\Jle excep- E: tion of a qualification in respect of a suit for emergent relief, such as one for injunction.· That contention did not find favour with the Privy Council nd it \Vas held that Section 80 is express, explicit and mandory and it admits no implicati.ons or exception's. The Judicial Committee observed :

"To argue as appellants did, that the plaintiffs had a right urgently calling for a remedy, while s. 80 is mere procedure, is fallacious, for s. 80 -imposes a statutory and ur; qualified obligation upon the Court.''

This decision "was subsequently followed by the Judicial G.

Committee in Ve//ayan v. Madras Prol'iF?ce.<"') }'he dictum la'id down . by the Judicial Committee in Bhagchand Dagadusa v; Secreqry of State.for India:<•) was cited with approval and followed by a Bench

(I) 54 I.A. 338

(2) 74 I.A. 223

(3) S4 I.A. 333

. ,

' ;

(1984] 3 S.C.R j ~

of five Judge_s of this Court in Sawai Singlrai Nirnial Chand v. Union

SUPREME COURT REPORTS

of India.(') ·

. It must now be regarded as settled law that a suit against the Government or a public officer, to whic4 the requirement of a prioi: notice under. Section 80 C.P.C. is attracted, can not be validly ihstituted until the expir>ttion of the period of two months )-' next after the notice in writing has been delivered to t_he autho- • rities concerned in the manner prescribd for in the Section and if filed before the expiry of tile said period, the suit has to be dismissed as not maintainable .

. On behalf of the appellaf1, ts, strong reliance was placed on. the decision of.a learned•Single Judge of the High Court of Kerala in Nani Amnia Nannini Amma v. State of Kera/a.(•) Therein the learned Judge has expressed the view that Sec. 80 is not a provision "1f . of public policy .and there is no\hing in the Section expressly affecting the jurisdiction of the court to try a suit" instituted before the expiry of the period prescribei! _therein. , The reasons 'stated by the learned Judge in justification of his taking.lite said.view despite the clear pronouncement of the Judicial Committee of the Privy

Council in Blzagchand's case do not appeal to us as correct or sound." 'In the light of the conclusion expressed by us in the fregoing. , paragraphs about the true .scope and effect of Section 80 C. P.C., the -+- afore cited decision of the learned Single Judge of the Ketala High Court cannot be accepted as laying down good law. •

IIi the result, we confirm the judgment and decree of the :F High Court and· dismiss this appeal. The parties will bear the respective costs in this appeat

N.V.K.

Appeal dismissed •

(I) Jl966](1) SCR 9'56

(2) A.I R .. 1969 Kerala 114

1

BIHARI CHOWDHARY.& ANR

STAT, E OF BIHAR & ORS

A.P. SEN

V. BALAKRISHNA ERADI

Section 80

section 80

CPC

section 80

CPC

section 80

CPC

section 80

CPC

L.N. Sinha

B.P. Singh

Ranjit Kumar a11d Ravi Prakash

D.Goburefhan

BALAKRISHNA ERADI

Section 80

State of Bihar

section 80

C.P.C

Bihar

Section 80

C.P.C

Section 80

C.P.C

Section 80

C.P.C

Central Government

Section 80

C.P.C

C.P.C

26th June 1922

High Court of Bombay

Section 80

Section 80

s. 80

s. 80

Section 80

C.P.C

Sec. 80

Blzagchand

Section 80

Ketala High Court

N.V.K.


' .

SMT. BIMLA DEVI ETC.

v.'

' .

IST ADDITIONAL •DISTRICT JUDOE AJ'!"D OTHERS )OTC.

, B March 27, 1984

[S; MURTAZA FAZAL ALI, A. VARADARAJAn AND RANGANATR

MISRA, JJ.J

Ulla.r Prad~"'' U1ban Buildings (Regu:atlon of Letting, Rent and Eviction) ...Act. 1972, Scope of-Words ad Phrases-lnport, inrerpreration ar:d nieaning

•. of the word''occup_;/ifJn" occurring in Exp!anarion {JV) to section 22(l}{bJ- The words used are not a rule pf evidence-A tenant ha1 no r-iCht to queltion

.he mode in which tire. Land.orcl 111ay choose to fi1•e in.

Jn both Civil Appeal No.41 or 1979 and Civil Appeal No. 319 of 1980, 1he &ppellants are the unsuccessful house-owners. to get an eviction --order againt their tenants from tl1c portions of their' respective houses from

th~ court's l-e!ow. In the first case, the question af-ose whether the .. porlion ·-Of the pi"emises sought to be vaCa1ed by the landlady was one single u:iit or two separate unitS. In t1'e sec_ond case, the point involved was whether. the

1 word "occupation":included actual residence of the landlord eVen though \; he maY not hJve'bcen'fesiding there .

AHowing tliO' appeals, by sp !cial leave, the Court,

HELD: (C.A. No. 41/1979)

In view of the Trial Court's finding basiDg its decision on the report

~"°f the Co_mmii::.sioner appointed for the purpose, that the en.tire building con ··; Stituted one single .unit, the appellant being 'in occupation of a portion of 'f.he same, she is entitled to get release of the other portion occupied by the

_ lienant. [32JF-G]

In C.A,. No. 379//980.

1: _I. The case of the a;'lpe:Ilant is clearly covered by-lhc provi:.ions of 'Explanation (iv) to section 21(\)(bl or the Ut•ar Pradesh U.rban Buildings •(Regulation or Letting, Rent and Eviction), Act 1972. [323C]

1:2; The policy-of the law was to give a facility. to the landlord so :as to securr the entire building where he 'is in occUpation of a part of the ""1me and wa11ts to occupy the whole ho.use. [32 lD]

SUPJ\EME COURT _RE)'ORTS.

(1984] 3 S.C.R-

1'3. lo Babu Singh.Chauhan v. Rajkumari Jain & Ors. [1982l3 S C.R •. 114, the Supreme C0urt;, whi16construing tbe word ·occup1tio1" oocurring.• . in section 21(l)(b) of the 1972 Act, uied the word ''po:i'iessio.1", treating. the word ·"possession" as synonym of "occuf)ation" a:Jd sioca the word ''possession" or'' occupati'oa" may take vari"0us forn1s held that even kep .. ing the house-hold effects by' the owner is an act of occupation. _. . ' [l 19H, 3200-GJ

Therefqre, even if a landlord iS serviflg Outside or living with his near relations bilt makes casu:il visits :to his hou'l.e and thus retains cOntrol or-·

ove~.the entire area~ or a.Portion 9f th.e-proPerty, he. Would. in law be deem~ ed to be in occupation of.the same1 To accept the co::iteotion th1t Explaaa· tion IV required actu1l physical occup1,1tion by tblj landlord of the portiol).. _ re.t8ip.ed by him. would destory the Very concept of constructive or actria• possession or occupation. [320H ;· 32 iA-B] • ·

2: 1. All the Rent Control Acts try o Qep.rive and curtail -the right of an. onwer of his property and hlve put 'coOstrJinis anJ restraints on hisi. right by giving suQstantial protectiO:i to the ten1nts io p:.iblk: interest, other- \Vise if Rent Acts_, wereto b3 nbolishi+t or wer~ not th.er7 the landl"ord could 'get a tenant eviCted only by a notic~ after expiry of the.tenancy in accor dance with the provisions of the Transfer ofPcopaty Act. [l21EF]. . . .

2:2:.The words "shall be conclusiveto prove" in Explanation (iv)' clearly indicte that it is a s11bstantive right which belongs to the Jand 1ordi and w; tiich has been affirmed and recogni.sed if a p-art of an accommodatiol}· is retainfd by the landlord. The words "concluivc to prove that the building is bona fide requ'ired_by the landlord" dos not con.stitute a rule of cvi~ . dence. [J2JF-G] · ·

2:-3. The right to j-ectment bavirig accri.led to tbe apDellant und-er E~~ p1anation (iv) was a vested right as an owaer and could not be affCcied hy the 1976 amendment unless it. was couched in a language which was either expressly Or by necessary intendm'ent 'ineant to b~ operative retrosoectively~ Explariation {iv) deals not merc.ly wit, h a particular procedure but \\-ith the-.• substaritive rights of the parties.

The Said E'xplan:it[on tias asserted f}nd~ affirmed tho substantive 'tight ora landlord to get portion of a buliding v.u1a.- ted where he is in occupation.· of a p'art of iJ.

Such a sub.itantive rigbt can--· not be taken away mere1y by a procedural amendment nof does the languagO''

of the amendment introdu::ed the 1976- .A:ot envisage or cotemplat~ Sl, lch a position. section .i 4 of. the 19 7 6 'ACt m'erely recites' tJJ.at Explanation (ii) and (iv) of s.21(1)(b) shafr be omitted. There is nothing to show that th<> legislature intended , to give, any. retrospective cffct to the delCtioil, of ExPll •· natioo (lv). [321H, 322A-D]

The .argument that merely because the 1andlor.d was living withi -his son or bis r~Jation after retirement and, therefore, was not ia occupatio[)

of the house cannot b~ accCpted because it was not for the tenant to dictate t~ the Jani;\lord.as to_ hOw he sbOuld use his own premises. A tenant to has got: . no right ilor an; y busi_ness

0 to interfere with .the .mode or manner .in which a. landlord may choose \o QS<; Ms property or live therein. {323 A-BJ ' - . ' .

aJMLA DEVI v. ADDL. DJSTI': JUDGE (Fazal Ali, J.) 317

CIVIL {\PPELLATE JURI_smicnoN : Civil Appeal .

A No. 4\ of 1979. (From the Judgment and Order dated 23rd August, 1978 of Allahabad Hi•hCourt in Writ Petition No, 1483 of 78) . 0 . .

WITH Civil Appeal No. 379 of 1980. ,,· From the Judgment and order dated.28th March, 1979 of the < Allahabad High Court in civil Misc-Writ No. 1287 of 1.977- G.L. Sanghi, V.A. Bobde & H.K. Puri for the appellant in C.A.

No. 41/79.

R:K. Jaln for the appellant in C.A.No. 379/80 ..

K.P. Gupta for the respondents in C.A. No. 41/79.

Shanti Bhushan and R.B. Mehrotra for the respondent in C.A.

No. 379/80.

The Judgment of, the Court was dlivered by

' I> FAZAL Au J.

We would first take up Civil appeal No. 379 or 1980 which is .directed against an Order dated March 28, 1979 passed by the Allahabad High Court dismissing the writ petition of the appellant and arises in the following circumstances.

The appellant owns a house bearing No. 113, Amroha Gate, Fruit Market, Morada bad, in a portion of which he had inducted. respondent No.3 (Vishwa Nath K1por) as a tenant white rtaining some portion for himself, when he (appellant) was servlng as a . Judi, i; ial Officer in the State of Uttar Pradesh. In the year !968, the appellant retired as a District Judge as a result of which he had to vacate his official residence, which necessitated the present eviction proceedings against respond~.nt No.3. The application for eviction was tiled on 2.l.!973 under s.21(1) (b) of the Utar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the '1972 Act') in which the appellant prayed that the portion occupied by respondent No.3 i'uay be released on the ground of personal requirement as after retirement he wanted to occupy the entire house.· The appellant further claimed that due to shortage of accommodation he had to stay with bis son elsewhere-.. The eviction proceedings were contested by the respondent on the following grounds:-

(a) that since .the appellant was already living with .his spn there was no particular urgency or personal necessity fot him to occupy the rented portion also,

IA I

(b)

(c)

SU"Pll.EME COURT REPORTS'

[1984] 3 S.C.R.

that the appellant badin bis occupation a part of th~ house which was retained by him even after inducting him.

(respondent) as a tenant and which was sufficient tor his needs, and . . tha.t !be.appellant after keeping his household effects in the portion retained by him bad locked up the. same and was, therefore, .not ill actual occupation of the home as equired by Explnation (iv) to s. 21 (1) (b). ·

In the same token, it was submitted as a point of law that the essential ingredient ofExplanation (iv) to s.21(1) (b) was that the building must have been in occupation of the landlord for residential purposes which alone would be a conclusive proof cif personal . necessity. It was also contended as a question of fact that• as the

appellant-landlord was not in actual occupation of the premises, Explanation (iv) would not be attracted in the instant case. To buttress this argu'.llent it was submitted that the landlord never occupi; d .or possessed the premises but had locked up the same and. was.re.siding e!sewhe.re. Thhplea of the respondent-tenant did not find favourwith the Prescribed Authority or the High Court ..

 . TI1e .domiriant question, therdore, turns upon the import and interpretation of Explanation (iv). to s.21(1) (b), particularly the nature and meaning of the word 'occupation' as used in Explanat\on (iv). The crux of the inatter, therefore, was as to whether or not the case of the appellant squarely fell within the four corners ofExplana-, tion (iv) and'whether the word 'occupation' included actual residence of the landlord even though he may not have b, een residing there.

We migl1t mention that while the eviction proceedings were pending

• I I , ' ' before.the Prescnbed Authority the 1972 Act was amended by U.P.

Act No.28 of 1976 (for short to be referred to as the ' 1976 Act') which came into force with effect fro~, 5th July 1976. and which '. deleted Explanation (iv).

The Prescribed Authority, relying on Explanation (iv), held that the need of the landlord was fully made .uut and accordingly passed an order -f .eviction against the tenant., partly re) easing some portion in appellanes favour.

The appellant tlien filed an appeal befoR.the District Judge which was heard by an Additional District Judge who accepted the offer of the tenant and modjfied the Order of the Prescribed Authority by further 'releasing some other portion In his favour.

The appellant then filed a writ

' '

. BIMLA DEVI v. ADDL. DJSTT. JUDGE (Fazal' An; J.) 319'

petition before the High Court which upheld the decision of the A Disttict Judge and dismissed the writ petition.

Before we approach the. question cif law raised before us it may be nec.essary to give a detailed picture of the position of the premises retained by_the landlord and hat rerited out to the tenant. The house in question is a double'storeyed one containing some rooms 0n the first floor and some on the_ ground floor which were retained by the landlord at the time.of th• lease and the rest of the portion. was let out to the tenant.

The learned counsel for the appellant coatended that in view of the requieme.nts of the landlord he had a real and tona fide need Cf9r o:cupying the entire house and. therefore, the entire portion occupied by the tenant should have been released' in favour of the appellant. This argument was countered by Mr. Shanti Bhushan, counsel for the respondellt, who put forward the following legal su bmissioo:

In the first place,. he con\ended that Explanat.ion (iv) woulc; l not in terms apply to the facts of the present case because on the findings of fact arrived at by the courts below it was not shown that the appellant was in actual '°ccupation of the portion retained by him, which js a prerequisite for the application of Explanation (iv) to s.21 (l} (b). In this connection, it was sµbmitted that the admitted position being that the application was previously employed as a.

District Judge and was living elsewhere, he could not be deemed to be in occupation of the portion retained by him. In order to appreciate this argument, it my be necessary to examine closely the language of Explanation (iv) which may be extracted thus:

"(iv) the factthat the building under tenancy is a part of a building, the iemining part thereof is.in the occupation of the landlord for residential purposes, shall be conclusive to . prove that the building is. bona fide required by the landlord."

The pivotal argument of the counsel for the respondent turns upon the interpretation of the word 'occupation'. This, however,. does not present any d1fficulty because in a recent decision in the case of Babu Singh Chauhan v. Ra1kumari Jain & Ors.(') this Co)lrt while

(I) [1982] 3 SCR 114. ·

• H:

SUPREME COURT REPORTS

(1984) 3 s.c.R. ·

costruing a sim}lar term in the same Act obseed as follows : ·

"We have gone through the judgment .of .the High Court in the light of the arguments of the parties and we .are. inclined to agree with the view taken by the High Court that

~ the mere fact . that the lady did not actually reside in the premises. which were locked and contained her household effects, it cannot be said that she was not in possession of the premises so as to make s. 17 (2J •inapplicable. Possession by. a landlord of his property "may assume various forms. A lanlllord may be se_rving outside while retaininii his possession over a property o( a part of the property by either leaving it in-charge of a servant or by putting his household effects or. things locked up in the premises; such an occupation also would be full and complete posses, Sion .in. the eye of law."

.• It is true that the court used the word, 'possession' but in • • Explanation.(iv) !O s.21(1) (b) the word used is 'occupation' and not 'possession' but this Court treated the word 'possession' as being a synonym of 'occupation'. In Webster's Third New Jl)tcrnational DictiOllary the word 'occupation' has been denned at page 1560 thus: ·• ·

"Occupationto take possession of, occupy, einploy"

, The Black's Law Dictonary (5th Edn.) defines 'occupation' at page 82 thus: ·

"occupation.::...possession; control; enure; use."

. F Jn Corpus Juris Secundum (vol.67) at pge 74 'occupation' hs

been .mentioned thus:

"The wor.d may be employed "as referri'ng to the. act or process 'of occupying, the state of being occupied, occupancy, or tenure.''

This, Court in the observations, extracted above, has clearly pointed out that 'possession' of 'ocoupatio_n' may take various forms and it was expressly held that even keeping the houtehold .effects by the own.er is an act of occupation.

It is, therefore, manifestly clear that even if a landlord is serving outside or , Jiving 'l(ith his near relations but makes cas\l!il

BIMLA DEVI v. ADDL. DISTT. JUDGE (Fazal All, J;) 32l ' isits t.ohis house and thus retains control over the entire .or .a por •tion of th.e property, he would in law be deemed to be in occupation ·-Of the same.

Therefore, we are unable to accept the' argument of Mr. Shanti Bhushan that the essential. ingredient of Explanation (iv) 11as not been made out, there being no actual physical occupation . 'by . the lanqlord of the portion retained, by him. Indeed, if the broa.d argument put forward by the counsel is.to be accepted then

hat would destroy the very concept of coqsructive or actual posses- ·sion or occupation. For, instance, even if a. house is not let out to any)Jody but is locked up, can it be said that the owner who is not 'living there but.has kept his household effects, would not be deemed tp be in occupation of the same? The answer must necessarily be in . the negative.

It seems to us that the policy of the law was to give a facilitf to the landiord so as to secure the entire building where he is in

1 -0ccupation of a part of the same and wants to occupy th~ whole .house.

Mr. Shanti Bhushan then argued that Explanation (iv) •does not confer any substantive right but merely raises a preump, •tion that if a landlord is in occupation of a part of the premises, his need would be deemed to be bona fide, We are, .however, unable to agree with this argument.

We must remember that all the Rent Control Acts try to deprive and. curtail the legal right of an owner to his property and have pnt constraints and restraints on his right by giving substantial protection to the tenant~ .in public interest; otherwise if'the Rent Acts were to be abolished or were not there, the landlord could get a tenant evicted only by a notice after expiry of the tenancy in accordance with the provisions of the Transfer of Property Act. The words "shall be condusive to prove" In Explanation (iv) clearly indicate that it is a substantive right which belongs to the landlord and which has been affirmed and recognised if a part of an accommodation is retained by the landlord. We are unable to agree with Mr. Shanti Bhushan that the words "conclusive to prove that the building is \Jona fide required by the landlord" constitute a rule of evidence.

In fact, this argument . was put forward before usbecause the learned counsel wanted to submit that in view of the 1976 Amendment Act, deleting Explanation (iv) to s.21(1) (b) of the 1972 Act, it would be -deemed to be retrospective and therefore the relief given by Explanation (iv) wonld . -Oisappear. We cannot agre.e with this somewhat far-fetched submis-

[1984) 3 S.C.Rsion because Explanation (iv) deals not merely with a particular procedure but with the substantive rights of the parties. The said< Explanation has assserled and affirmed the substantive right of a . . landlord to get a portion of a building vacated where he is in occupa~

tion of a part of it. Such a substantive right cannot be teyken away merely by a procedural amendment nor. does the language of the amendment introduced by the .1976 Act envisage cir cntempfate such. a position .. Section 14 of the 1976 Act merely recites that Explanations (ii) and (iv) of s.21(1) (b) shall be omitted. There is nothing; to show that the legislature intended to give any retrospective effect to the deletion of Explanation (iv). ·

In these circumstances, therefore, the right to ejectment having: accrued to the appellant under Explanation (iv} was a vested right as an owner and could not 'be affected by t!Je 1976. amendment unless. it was couched in a language which was either exp.ressly or by necessary intendment meant to be operative retrospectively.

Lastly, it was argued by Mr .. Shanti Bhushan that the fact reinains that the appellant, even after retirement, was not in actual possession of the portion retained by him and was living with his. son or Qtber relati.ons most of the time excepting casual visits to the premises in dispute. A farther argument was raised in an additionat Note supplied by the counsel for the respondent that as the bathroom and the latrine were in occupation of the tenant, the landlord could not possibly have occupied the premises retained by hi!D' and could not have lived there in the' absence of these facilities. The High Court rightly rejected thes.e argumets by observing thus:

- \ ~· "The last argument was that the view ofthe Prescribed

~ ' ' ' .

Authority that since the petitioner did not occupy the por- . tion retained by him and lived with his son anrl, therefore. his need was not bona fide has nomerits inasmuchas the petitioner did not have .either a latrine._ or a bathroom• and that he could not possibly occupy the hoi1se in the. posit.lop; in which it bad been .retained: There may be some truth in. the submission made by the learned counsel for the petitioner.

But, as neither the Prescribed Authority nor the Appellate Authority based their judgment on this feature of the case an"d . th'ey examjned the merits of the. claii:n ofthe respective parties. it is not possible to interfere with the j, udgments of tlie courts; below."

. . '

I..._.

BIMLA DEV! v. ADDL. DISTT. JU;)Gb (F aza/ Ali, J,) 323

An attempt was made by the parties to come to a settlement but, unfortunately, the efforts failed. T}le argument.of Mr. Shanti' Bhushan .that merely because the landlord was living with his son or his relation a(ter :etirement and, therefore, was not in occupation of the' house cannot be accepted because it was not for the tenant to dictate to the landlord as to how he should use his own premises.

A tenant has got no right nor any business to interfere with the mode or manner in which a landlord may choose to use his propecty or live !herein.

Jn these circumstances, therefore, we are satisfied that the case

of the appellant is' clearly covered by the provisions of Explanation o

(iv) to s.21(1) (bl and a decree for release of the entire premises should have been passed by the District Judge against the respondent.

We, therefore, allo; v this appeal, set aside the judgments of all the courts below and grder release of the entire premises in possession of the respondent to the appellant. Time is granted to the respondent to vacate the premises on or.before 31st December 1984, subject D to the usual undertaking to be given and filed by him in the Court within four weeks frqm .today, failing which the.grant of time shall st1nd revoked without further reference to the Bench and the appellant would be entitled to be put in possession forthwith. . - .

Civil Appeal No. 41 of 19,79

This appeal was heard alongwith civil appeal No. 379 of 1980 which we have decided by our judgment.• The main point involved in , this appeal was as to whether theportion of the premises sought to be vacated by the landlady was one sjngle unit or two separate units. This Court remanded the, matter to. the trial court for examining this po int and the trial court has returned a finding, basing its decision on the report of the Commissioner appointed for the purpose, that the entire building cons1ituted one single , unit.

It is, therefore, manifest that if the entire building was one unit and the appellant being in occupation of a portion of the same, she is entitled to get release of the other portion also.

In view of our decision in civil appeal No. 379 of 1980, the appeal is allowed and we order release of the entire portion in favour of the appellant • . Time is grantd to the respondent to vacate the premises on or before

31st October 1984, subject to the nsuaf undertaking being given and fited within four weeks from today, failing which the .grant of time

. 324

[1984) 3 S.C.R •• . . . j shall stand revoked without f\)rther refaence to the Bench. There wiH be no order as io costs.

• Let a certified copy of this judgment be placed civil appeal No.41 ofl979.

S.lt. '

• • \.

on the file of

i4ppeals allowed.

BIMLA DEVI ETC

1ST ADDITIONAL DISTRICT JUDGE AND OTHERS ETC

MURTAZA FAZAL ALI

A. VARADARAJAn

MISRA, JJ

section 21(l)(b)

All the Rent Control Act

Vise if Rent Act

Fazal Ali

CIVIL {\PPELLATE JURI_smicnoN

G.L. Sanghi

V.A. Bobde

H.K. Puri

R:K. Jaln

K.P. Gupta

Shanti Bhushan

R.B. Mehrotra

Allahabad High Court

Vishwa Nath K1por

State of Uttar Pradesh

s. 21

Shanti Bhushan

[1982] 3 SCR 114

s. 17

Fazal All

Transfer of Property Act

Section 14

Shanti' Bhushan


THE PUNJAB UNIVERSITY, CHANDIGARH ETC.

SUNDER SINGH AND OTHERS

Februay 27, 1984

[S. MuRTAZA fAZAL Au, A. VARADARAIAN AND

RANGANATH MISRA, JJ.] •

Punjab University Calendar Vol. l/, 1976, Chapter III Rule 27./ (a) inter, prttation of-Whether the allowance of grace mark under Sub-Rule ·(a) or (b) wi// apply to candidates reappear)ng in all)' subject-Award of graCe n'1ark at Posl Graduate levl deprecated. ' •

Re.spondents in each of these appea]s could not clear the LLM examination in accordance with RegulatiOn 7 of the Punjab University Regulations D either in the first atte'mpt or later while taking on compar.tmcntal basis even aftet addition' of grace marks as laid down in Rule 27(1)(b) of the University -

Regulations. The respondents filed. separate writ pethions praying for a d-irection to give the benefit of moderation grace. mark as calculated under Role 27(1)(a). The High Court. rejected the plea of the Appellant University holding that it was Rule 27(l)(b) that applied and not Rule 27-l(a). f[ence the \ ". appeal by Special Leave.

' '

Allpwing the appeal, the Court

HELD : A bare reading of the Rule 27 (referred !to as the. Regulations by the High Court) makes it clear that clause(•) is applicable where the fu 1 examinatioti is taken and clause (b) is attracted where the !candidate reappears to.clear the compartment or subject and part in which he has been declared eligible to re3; ppear.

Jn each of these cases the candidate was reappearing to clear the paper in which he or she had failed; clause (b) was clearly attracted and the benefit under clause (a)•was not .available. .The language of clause (b) -ris such as would squarely apply to such a .situation. The provision in clause

(b) is clear and on reappearing the candidate becomes entitled to grace marks

of up to OI!ll per cent of the total marks of the subjecvsubjecis in which he reappears. Once clauSe {b) applies no referenee is availabJeto the performance in the regular examination taken earlier and the benefit of grace marks to the extent indicated has to be confine_d to the performance at the reappearance.

Once this is the position each of the candidates was 6ot eligible to pass.

. (34GH, 35B-C] . .

[In view of the-declaration dated 19.6:1980 made . before the court that irrespective of the result of the appeals, the candidates will be declared to' have

passed~ t4e Court as a special ca~~ did n9t want to disturb the result.] u

" ' -

(35D] ' .

. '18

>>G

i-tH

(1984) 3 S.C.R.

SUPREME COURT REPORTS . .

Observation :

The J?OSition obtaining in (be Punjab University in re.s.pect of Post Graduate degrees namely grace marks beiag awarded is disapproved. A Master's degree in any specialityis con$idered to be the highest qualification in tha normal ruh. It is very much necessary that such a degree. should be conferred only on th.e deserving students who having studied the subject and taken the appropriate examination conducted by tho University at the end of such studies h:1ve d:!served the degree on the basis of their performavce. There should be no scope for looking for grace marks at such level and the sooner the . Punjab U !l'iversity abandons the practice of awarding grace marks in .. -respeCt of post-graduate examinations the better it would be in the interest of

higher eduCation in this country.'[35F-H]

CIVIL APPELLA'IE JURlSDICTION; Civil Appeal No. 6009 of 1983.

Appeal by.special leave from the Judgment and Order dated , the 19th April, 1983 of the Punjab and Haryana High Court in .c.w.P. No. 1484 of 1983.

WITH

Civil .Appeal Nos. 1207 and 1208 of 1980.

Appeals by special leave from the Judgment and Order dated the 30th May, i980 of the Punjab and Haryana High Comif in Civil Writ Petition Nos. 1759 and 1846 of 1980.

 J.L. Gupta, D.N. Gupta and V.K, Verma for the Appellant in CA. No. 6009 of 1983. i . . . ·.

J.L. Gupta and C.M, Nayar for the Appellant in CA. No.· 1207 and 1208 and \980.

Hardev Singh and R.S. Sodhi for the Respondents.

The Judgment of the_ Court was delivered by •

RANGANi\.TH MiSRA J. Each of these appeals .is' by speaial leave and is directed against the decision of the High'Courtof Punjab and Haryana in separate, writ petitions, A common .'\uestion i_s involved in all the three matters and that relat.es to a corret interpretation of Rule 27. l(a) in Chap.ter Ill of the Punjab University Regulations.

Responderrts in each . of these appeals was a student of the funjabUniversity for the Master Deree in Law (LL.M,).

Rill~

-:' .. -! ;

PUNJAB UNIVERSITY v. SUNDER siNGH (Ranganath Misra, J.) 33

7 of the Punjab University l!.egulations provides :

"7. The minimum marks required to pass Part 1/U examination, as the case may be, shall be :

 (i) 45 per cent in each paper; and

Iii) 50 per cent in the aggregate."

It may be stated that 'there are eight papers in all each carrying 100 marks and Part-I covers four papers while Part-II covers the remainder. R.ule 27 reads as follows :

"27.l(a). A candidate who appears in all subjects of an examination and who fails in one or more subject (written, practical, sessional or viva voce) and/or the aggregate (if there is a separate requirement of passing on the aggregate) shall be given grace marks up tq. maximum of I per cent of the total aggregate marks (excluding marks .for internal assessment) to make up the deficiency if by such addition the candidate can pass the examination. . While awarding grace marks fraction working to 1/2 or more will be rounded . . to a whole;

Provided that grace marks be also awarded to .a candidate if by awarding such marks he can earn exemption or comp

0artment in subject/s and part/s. E

(6) A candidate wh'? re-appears to clear the compartment or subject/s and part/s in which he has been declared ·

(eligible) to re-appear shall be .awarded grace marks up to I% of the total marks of the subject/s and part/s in which he reappears if by such addition the cand.idate can pais in that subject/s or part/s." .

Each of the respondents Jailed to satisfy the requirements of Rule 7 and being eligible to .clear the subject in which he failed on compartmentel basis reappeared in such subject in the next exami.nation. As on the 'pe'rformalice of the subsequent eii:amination each of the respoli.dents was not eligible to pass by. complying

wlth-l)e requirements of. Rule 7, the need for invoking Rule 27

-- arose. The University authorities took the view that Rule 27.l(b), authorised addition of the grace !llarks of up to l per cent al). the marks scured in the suoject/s in which the Cal)didate reappa'r, ed H and as: with that benefit given the c, andidates di!l not pas, f.hey . ·

wefouqd qo\ \o haye l?el! ~11¥cesef, ul, lhat led \o ea~ oJtb~

"! '~

. E

SUPREME COURT REPORTS

[1984) 3 S.C:R• • respondents filing a separate writ applicatiqn' before the High G:!ourt.

lfhe High Court referred to the rule and observed :

"The only , Question to be seen is whether Regulation ·: 27. l(a) in Chapter III of . the Punjab University Calendar, Volume II, 1976, relating to Mo.deration of Question Papers and results of examinations, is applicable or not. We have gone through. clauses (a) and (b) of this Regulation very carefully and we find that clause (b) is not applicable. We are unable to agree with the contention of Shri Gupta; the . learned.copnsel for the University that the case would fall under clause (b). This contention is without any merit as it is clear that . this clause will only come into pliiy if tte candidate is failing in the subject in which he or she reappears. It is quite clear from ihe facts that the petitioner has not so far availed advantage as given in clause (b) so that she could get one per cent mark of the total marks in all the subjects .... ,.

The contention of the learned counsel for the University, that clase (a) will only apply if a candidate appears in . all the subjects in the examination, is without any merit.

The language of this provision does not show what bas been contended beforeus.

For the reasons recorded above, we allow this writ application and direct the University to make available the benefit of clause (a) of the said Regulation to the petitioner and declare the result of the petitioner accordingly."

A bare reading of the Rule 27 (referred to as the Regulations by the High Court) makes it clear that ciause (a) is applicable where the full examination is taken and clause {b) is attracted where the candidate reappears to clear the compartment or subject and part in which be has been declared eligible to -reappear. In each of these cases the candidate was reappearing . to clear the paper in which be or she had failed ; clause (b) was clearly attracted and the benefit nnder clause (a) was not available.

The University had taken th.at.decision and.took the same stand before the High Court ill ;1nswer to tl!e r11le pisi, We:ar~ clearly of the opinion that th~

"'

.... ;

PUNJAB UNiVERSiTY v. SUNDER SINGH (Ranganath Misra, J.) 3,

High Court we.nt wong in taking the view that when a candidate

reappeard to clar a paper or a subject on being found eligible to do so, clause (a) was attracted. The language of clause (b) is such as would squarely apply to such a situation. Having taken the view that clause (a) governed the matter, the High Court had no occasion to express any' opinion as to if clause (b) applied what benefit the candidate would have got. The provision in clause (b) is clear and on reappearing the candidate becomes entitled to grace marks of up to one per cent of the total marks of the subject/subjects in which he reappears. Once clause (b} applies no reference is available to the performance in the regular examination taken earlier and the benefit of grace marks to the extent indicated has to be confined to the performance 'at the reappearance.

Once this is the position each of the candidates was not eligible to pass. We, however, find thata direction was giyen in this Court.on 19.6.80 on the concession of the University that the respondents in the two appeals of 1980 would be declared to have pass_ed irrespective of the result of the appeals. Learned counsel

appearing for the University before us reiterated his consent and even agreed that the respondent ln the remaining appeal may be given the same advantage as the University did 11ot intend to make any discrimination. In view of this special feature we do not disturb the dclaration of the University that each of the respondents has passed the examination taken by him or her.·

We must indicate our disapproval of the position obtaining in the Punjab University that in respect 1 of po:; t-graduate degrees grace marks are being awarded. A master's degree in any specia- lity is considered to be the highest qualification in the normal run.

It is very much necessary t.hat such a degree should be conferred only on the deserving students who having studied the subject and taken the appropriate examination conducted by the University at the end of such studies have deserved the degree on tQe basis of their performance.

There should be no scope for looking for grace marks at such level and.the sooner the Punjab University abandons the practice of awarding grace marks in respect of post• graduate examinations the better it would be in the interest of higher education in this country.

'<,'

 ~PRE"'B COURT REPORTS

[1984] 3 S.C.R.

We allow each of these appeals. and set aside the judgments of the High Court in each of. the writ petitions without any order for costs.

T>i avo.id confusion we reiterate that our vacat:Og the the judgments .of the High Court do not in any manner affect the declarations made in favour of the respondents by the appellantlJniversity in regard to passing ofthe Master Degree Examinatfons in law.

S.R.

Appeal a/lowde.

' •

THE PUNJAB UNIVERSITY, CHANDIGARH ETC

SUNDER SINGH AND OTHERS

RANGANATH MISRA, JJ.

Chapter III Rule

Punjab U !l'iversity

CIVIL APPELLA'IE JURlSDICTION

J.L. Gupta

D.N. Gupta

V.K, Verma

J.L. Gupta

C.M, Nayar

Hardev Singh

R.S. Sodhi

RANGANi\.TH MiSRA

Punjab University

Gupta

Ranganath Misra

Punjab University